Page
424
Bartlett (18 C.B. 845). The vital difference be- tween Humble v. Langston and Hill v. Gomes is this, that in the former case, so far as appears, the defendant did not take the shares with a knowledge of any conditions hampering the sale of them; there seems to have been an uncon- ditional agreement to sell and purchase; and the Court declined to annex any condition to such a contract for the sale of shares. Even if the in- strument of transfer which subsequently passed contained a reference to conditions of sale, the instrument employed was defective; therefore the vendor did not take all necessary steps to invest the vendee with ful proprietary rights. But in the present case, the authorised instru- ment of transfer was used, and that instrument, which passed the property in the shares to the vendee, recited the conditions upon which such property passed. The circumstances being so different I cannot accept Humble v. Langston as an authority in the present case. In the case of Walker v. Bartlett (18 C.B. 845) Wightman, J., at pp. 860, 861, says. "the plaintiff, in pur. suance of an agreement between him and the de- fendant, sold his shares to the latter and delivered to him a document addressed to the secretary of the mine, by which the plaintiff requested him to enter a transfer of the shares and all profit arising therefrom out of his name into that of the transferee, subject to the rules under which the plaintiff held them. The plaintiff, by the delivery of that document to the defendant, bad done all that it was incumbent upon him to do, or that he could do, to pass the property in the shares to the defendant, who, upon the receipt of it, became potentially the owner of the shares and might be made his title perfect at any time." Comparing the ease with the present, it is common to both that the dereutatered into no express agreement to pay calls or to indemnify; that he accepted the only transfer the plaintiff could give and which invested him with full power to become the registered owner of the shares whenever he pleased; that the transfer expressed that the vendee took them subject to the same rules as those under which the plaintiff beld them, one of which was that the registered owner should pay the calls; and
❘
IN BANKRUPTCY.
[June 6, 1895,
BEFORE ION. W. M. GoODMAN (ACTING CHIEF JUSTICE).
IN THE MATTER OF SAVILLE SMITH. Mr. Dennys made an application on behalf of Saville Smith for a receiving order.
Mr. Ellis opposed the application on behalf of creditors.
A certificate from Dr. Cautlie was then handed up to his Lordship.
His Lordship-I have to be satisfied that the debtor has substantial assets, and I am not satisfied at present. He has stated that he has a lot of money in Bombay. If so, he had better get it. If the Court protected bim, and prevented his arrest-that is what he wants- we shall probably find that he has nothing at all. I can only say that I am not satisfied with his
statemanic.
"Mr. Dennys-Ile has money actually on the way to Hongkong. If he were locked up he would perhaps die, as he is very seriously ill. He was vomiting blood the last night Dr. Cantlie
saw him.
His Lordship-I will adjourn the application until ten o'clock to-morrow morning. I must say that I am not satisfied with the statement as to his assets. He does not say what they are worth, and it is all very well for him to say that some- body owes him money. His assets are nothing at all. If he has assets why does he not get somebody to find security for him?
THE HONGKONG WEEKLY PRESS AND referred to are sufficient for the purposes of this appeal, I must, however, notice some of the contentions advanced on behalf of the ap- pellant. It was subtly argued that the nature of the contract was a bare sale of shares conpled with an authority to the vendee to complete the contract by filling in his own name, or to trans- fer the share certificate with the same authority, or to fill in the name of a transferee. Now, if there was, as admitted, a bare sale of shares, that
Mr. Dennys supported his application by pat- sale passed the property in the shares to the ting in an affidavit in which the debtor said that vendee, who thereby obtained potential proprie- there was a warrant against him calling upon tary rights and was rot in any degree dependent him to find security for $425. The warrant was upon the vendor for any authority to please him-issued by Mr. Bobm, of the Windsor Hotel, and self as to the mode in which he might subse the debtor admitted owing $126. He was unable quently deal with them. If the vendor really to find security, and if he did be would he called clothed the vendee with such an authority, it
upon by the members of the company to whom was a superfluous act and could not interfere he owed two weeks' salary, to find security for with or be substituted for the absolute authority various sums. Some money in the hands of already vested in the vendee by the executed Messrs. Kelly and Walsh and a box of manus- sale. It was further contended that there was cript plays, for which he paid $8,000, were bis not an absolute contract of sale to a specific principal assets. Beyond the rebts mentioned purchaser, the sale being either to the purchaser there were practically no others. The debtor from the vendor or to a purchaser to be found
was at present unable to attend the Court, as he by the vendee; that the nature of the transaction
was very seriously ill. might show that there was not a simple contract of sale, that there was no intention on the part of the one to claim and on the part of
the other to pay an indemnity, and that there might have been an intention on the part of the vendor to dispense with the liability to indemnify; but it was admitted that if there was a specific con- tract of sale, a liability to indemnify against all future calls subsisted. I do not think that it can be maintained for one moment that there was no specific pu.chaser in this case if there is an offer of sale in the alternative to either A or B, am I asked to hold that there is no specific purchaser ? Either (A or B purchases. Of course tuere is to purchaser until one or the other buys and therefore no sale; but so soon as A or B buys, a specific purchaser is extant. Here Gomes bought and he is the specific purchaser; to whomsoever the offer of sale was made, Gomes accepted it. Nor can I see any thing in the nature of the transaction to show that there was no intention on one side to claim and on the other side to pay an indemnity that the vendee did not create the transfer. From the passing of a blank transfer no lack of The sole important difference between the two such intention is inferrable: the law implies a cases consists in this, viz, that in the case before promise to indemnify and this implication must the Court the vendee parted with his shares bebe directly rebutted if it is to be removed. The fore calls had been made, whilst in the older passing of an instrument of transfer embody.
His Lordship-I shall be very glad to have a case the vendee was still in possession of the ing certain conditions of tenure which are in no further explanation about the certificate." Under- shares when the calls took place. The decision wise expressly modified and the direct notice stand me, I am very far from saying or suggest- in Walker v. Bartlett was that there was an im- given by the vendor's broker to the vendee's ing that the certificate was improperly given, plied obligation on the part of the vendee to broker that the shares were not fully paid up because we all know Dr. Cantlie to be a man save the vendor harmless from any calls made (thereby informing him that calls were liable who bears the highest reputation, and I have no daring the time when he (the vendee) was vir to be made on the shares) are, on the contrary, doubt that it was a proper certificate. At the tually owner of the shares. As no question of indications that there was an intention
same time it is in evidence before me that Dr. sale to a third party arose, the judgment is con-
sides the part of both
to recoguise Cantlie had not seen the man for three or four fined to deciding the very point before the Court, the existence of the liability in question. Ac-days; whether that is so or not, I do not know. viz., was defendant liable to indemnify plaintiff cordi g to the conclusion at which I have ar- At the same time the man was down town on during the time that defendant was virtually rived, this appeal should be dismissed with costs. Saturday, and on Monday he slipped away, and owner of the shares ? No decision was given
has kept in hiding ever since, and managed to regarding the liability of a vendee to indemnify
keep away from the process of the Court. I am a vendor for calls made on the vendor after the
uot satisfied, under section 5 of Ordinance 6 of vendes has passed the shares to a third party;
1892, that there will be substantial assets for and it certainly cannot be inferred from that
division among the creditors, and under these judgment that the liability exists only so long as
circumstances I must decline to make an order. the vendee holds the shares. In the case of Evans v. Wood (L. R. 5 Eq. at p. 11, note (1), which was not alluded to at the bar in the argu- ment on this appeal, the judgment of the Master of the Rolls in dismissing a demurrer for want of equity contains the following passage, "The ques- tion is whether the person to whom he, i.s., the plaintiff, sold is not liable to indemnify him. The case of Walker v. Bartlett (18 C. B. 845) ex pressly decides that at law he is liabl», that there is an implied contract to indemnify the plaintiff as long as the defendant is the owner of the shares, or as long as he has allowed the plain- tiff's name to remain upon the register." This passage is valuable for the light which it throws upon the phrase "virtually owner of the shares" applied by Wightman, J., to the vendes in the case of Walker v. Bartlett. The inference to my mind from this extract is that, as between the vendor and vendee of shares, the vendes stands to the vendor in the position of a virtual owner of the shares for what time he allows the vendor's name to remain on the register. If this inference is right, the decision in Walker v. Bartlett as interpreted by Lord Romilly corroborates the couclusion at which I have arrived independently of the oases. I shall not allude to any other cases cited at the bar, because I consider that those which have been
Q
on
29th May.
IN APPELLATE JURISDICTION.
Mr. Dennys-If he gets security in this case he will have to give further security for $1,100, money due to the company.
BEFORE THE FULL COURT-THE HON. W. But if it will be an advantage I will give you an
MEIGH GOODMAN (ACTING CHIEF
THE
JUSTICE) AND MR. T. SEE. COMBE SMITH (ACTING
PUISNE JUDGE.)
{
opportunity of supplementing the affidavit, and I will adjourn the application until to-morrow morning at ten o'clock. I can only say that an application of this kind would come with more grace from a man who did not wish to evade the order of the Court, than from one who has SHANGHAI | BANKING evidently dodged the order of the Court by go-
ing into biling.
HONGKONG
AND CORPORATION AND OTHERS V. J. M. FORBES AND OTHERS.
The case again came on for hearing in which the Hongkong and Shanghai Banking Corpora tion, the Chartered Bank of India, Australia, and China, the Mercantile Bank of India, Lon- don, and China, the Liquidator of the new Ori. ental Bank Corporation, Limited, and the Comp. toir National d'Escompte were the plaintiffs and John Murray Forbes, Ng Woon Sun How- qua, Creasy Ewens, and Ng Chan Fong, the defendants.
Mr. Francis, Q.C. (instructed by Mr. Johnson), appeared for the plaintiffs, and Mr. E. Sharp (instructed by Mr. Dennys) for the defendants.
The appeal was by the plaintiffs and against the judgment of Mr. Justice Ackroyd on 20th February last.
The argument was still proceeding on the 5th
June,
Before the Court rose after hearing arguments Acting Chief Justice that Mr. Saville Smith in the appeal case, Mr. Dennys informed the did not intend to persist in his application for receiving order.
Mr. Bohm's claim, for which a
warrant had been issued, had been satisfied,
The third contest between the Hongkong Police Force, ad the members of the H. K. V. Corps for Mr. H. H. May's Cup was concluded. ou Saturday last at the Police Rifle Range. Kow- loon, and resulted in Sergt. Lowrie, H.K.V.C., being declared the winner for the second time. Sergt, Lowrie was penalized 3 points on his first win; at the next contest he will be penalized 5 points; and should be succeed in securing another win, either at the next or at any subsequent meeting, the Cup will then become his own.