of a voluntary winding-up contemplates the making of calls in the same way. Table B. is merely a sketch of what it is supposed the articles of association may be, and (2) does not affect the question.-He also referred to the 19th section of the 19 & 20 Vict. c. 47, and the 13th section of the 20 & 21 Vict. c. 14. Lush (with whom was Raymond) argued for the defendant (May 3).—The main question with regard to the first count is, whether half shares could be legally created. It is submitted that the creation of such shares is not warranted by the deed of settlement, and that nothing has taken place which has the effect of giving validity to them. By the 4th and the 85th clauses of that deed it appears that the parties thereto agreed to admit as partners, persons who might hold that amount of capital. The forms of voting at general meetings are wholly inapplicable to persons who are the holders of half shares. A person having less than a share, does not covenant for the payment of calls. The covenant (clause 14) is by the proprietors of shares. The provisions with respect to the transfer, in consequence of death or otherwise, all relate to shares. It was never contemplated that any one holding a less interest than a share should be a partner in the concern; for there is no such share or interest as a half share in the partnership capital. This is a matter relating to the constitution of the Company which could not be altered without the assent of every individual shareholder. Even with the assent of all the shareholders, the provisions of the deed of settlement in this respect could not be varied, except by a new deed. Notwithstanding all that took place, it is still competent for any individual shareholder to say, "there are no half shares." The defendant, therefore, has no legal title to a distribution of profits, on the footing that these half shares were well created. VOL. VI.-N. S. I EXCH. 1800. HULL FLAX v. WELLESLEY. 1860. HULL FLAX v. EXCHEQUER REPORTS. - There is no estoppel, for the defendant bought these shares in the market after they were created. No doubt it is enough, for the purpose of calling a meeting, if notice is WELLESLEY. sent to the registered address of each shareholder; but the case does not shew what number attended, and it is consistent with every statement in it that one-third of the shareholders never consented to the creation of these half shares, and that the resolution was carried by a bare majority. [Bramwell, B. — Have not the directors the option of regarding these shares as valid?] They cannot validate them as against third parties without their consent. The shares were invalid at their original creation in 1845; the defendant purchased in 1850, so that he cannot be affected by what previously took place. [Wilde, B. -How can a person who has purchased the shares say that they are invalid?] The defendant is not the holder of the shares, for in law they do not exist. The Company would have had no power to increase the capital by creating additional 100%. shares except for provision in the 85th clause. [Pollock, C. B.- Ought not the defendant to have repudiated the shares when he found that the Company had no power to create them?] He was not bound to do so, for the shares are mere nullities.-As to the third point, the liquidators have no power to wind up the Company in the manner they have done. The 98th and 99th clauses provide for the winding-up of the Company; and by the 33rd section of the 20 & 21 Vict. c. 14, those provisions are to be deemed the regulations of the Company, in the same manner as if they were contained in a registered memorandum of association and articles of association. Therefore the winding-up must be under the deed and not under the Act, and the clauses in the deed do not authorize this proceeding. On this point he also referred to the 19 & 20 Vict. c. 47, ss. 9, 19, 22, and clause 14 of the deed of settlement. He abandoned the second point. 1860. HULL FLAX v. Mellish, in reply.-The defendant having executed the deed and kept the shares, is estopped from saying that he is not a shareholder. [Martin, B.-Suppose the trustees had sued him on his covenant to pay the calls, what WELLESLEY. could he have pleaded?] Only non est factum. [Martin, B. Both parties having acted upon the faith of these shares being valid, they are equally precluded from disputing that fact. Bramwell, B.-Suppose a partnership deed provided that no contract made by the partners should be valid unless in writing, and one of the partners made a parol contract which was acted upon, would it not be binding?] All parties would be estopped from disputing its validity. The defendant is a shareholder within the definition of the 19th section of the 19 & 20 Vict. c. 47.-He also referred to the 61st section of that Act. Cur. adv. vult. MARTIN, B., now said.-This was an action brought by the official liquidators in the name of the Company for the purpose of compelling the payment of certain calls; and the objection was, that, as by the constitution of the Company, which was originally a Joint Stock Company, formed under a deed, the only power to create new shares was to create shares of 1007., although at the general meeting of the Company, duly convened, new shares of 50l. were created, such shares were void: that although the defendant had executed a deed whereby he bound himself to take these shares and pay the calls made upon them, yet, the shares not being created in conformity with the power in the deed, the defendant was not bound to pay the calls made by the Company, and was also under no obligation to pay the calls made by the official liquidators for the purpose of winding-up the affairs of this Company. The question was ably argued on both sides, but we are 1860. HULL FLAX v. of opinion that the argument on behalf of the plaintiffs must prevail. Whether we consider the case with reference to the calls made by the official liquidators in pursuance of WELLESLEY. the Act for winding-up such bodies as this, or to the calls made by the Company under the powers in their deed, the defendant, who executed a deed, whereby he expressly bound himself to pay calls on these shares, is estopped from setting up this answer, and is bound by his own contract to admit that the shares are good and valid, more especially as for a number of years he had derived a benefit from them. Our judgment is therefore for the plaintiffs. The demurrer involved the same question as the special case. It was said there was a difference between one class of calls and another, and possibly it may be so; but, nevertheless, as our judgment is for the plaintiffs upon the entire case, it is useless to go into that question. Judgment for the plaintiffs. June 22. for wilful negligence, the jury may take into consideration the motives of the defend ant, and if the EMBLEN U. MYERS. In an action THE declaration stated that the plaintiff, before and at the time of the committing of the grievances, &c., was possessed of certain land, and a certain stable and loft, in the city of London, and then occupied the same, and used it for the purposes of his trade, to wit, of a coal and coke dealer; and the defendant, to wit, on &c., and on divers other days &c., before the commencement of this suit, wrongfully and injuriously pulled down a certain other building in the convenience, city aforesaid, next adjoining the said land, stable, and loft the jury may give exemplary of the plaintiff, in so negligent and improper a manner, and damages. with such a want of proper and due care and skill in that negligence is accompanied with a contempt of the plaintiff's rights and behalf, that by reason thereof a piece of timber fell upon the said stable and loft of the plaintiff, and upon a truck and cart of the plaintiff, then standing upon the said land, and used by the plaintiff in his said trade, whereby the said stable and loft were greatly injured, and the gates of the said stable and loft were broken and destroyed, and the roof thereof stripped therefrom, and divers goods and harness of the plaintiff therein, exposed, damaged, and destroyed, and the said truck and cart of the plaintiff were broken and spoiled, and rendered unfit for use in his said trade, and by reason of the aforesaid negligence, carelessness, and unskilfulness of the defendant, a part of the said building so pulled down also fell upon a certain horse of the plaintiff, then upon the said land, and used by the plaintiff in his said trade, whereby the said horse was severely injured, and has been, and now is, rendered unfit for work; and by reason of the premises the plaintiff hath from thence hitherto lost and been deprived of the use of his said stable and loft, and of his said cart and truck, and of his said horse, goods, and harness, and has been unable to carry on his said trade, and has lost divers profits therein. &c. Plea. Not guilty.-(By statute 18 & 19 Vict. c. 122, ss. 38, 69, 71, 72, 74, 108.) At the trial, before Wilde, B., at the London sittings in last Trinity Term, it appeared that the plaintiff was the owner of a small piece of land, in Gravel Lane, Houndsditch, on which he built a stable and loft, for the purpose of his trade as a coal and coke dealer. The defendant was the owner of an adjoining house, which, being in a dilapidated state, he was required by the police to pull down. The defendant had applied to the plaintiff to purchase his premises, but the plaintiff refused to sell them. The labourers employed by the defendant pulled down his house in such a reckless manner that a large piece of timber 1860. EMBLEN v. MYERS. |