CO129-302 - Public Offices - 1900 — Page 304

297

2

not become liable to indemnify the Plaintiff. Against these decisions the Plaintiff has appealed to this Board.

The facts of the case so far as they are material are shortly as follows:-

The Bank in question was formed and regis- tered with limited liability under the Companies' Act 1862. Its capital was divided into shares which were not fully paid up when it went into liquidation which it did in December 1894. Calls have been made on the contributories of whom the Plaintiff is one. He is a contributory in respect of fifty 101. shares. He has been sued by the liqui- dator for the calls made on him in respect of those shares and judgment has been given against him for 4021. 12s. 11d. which he seeks to recover from the Defendant.

The 50 shares in question were placed in the Plaintiff's name in April 1891 by his then employers Benjamin and Kelly who were share- brokers. The Plaintiff never had any beneficial interest in them; but he was registered as their holder on the 3rd April 1891. A provisional certificate of his ownership was made out and he signed a blank transfer of them and those two documents were held by Benjamin and Kelly who paid the application and allotment money and first call. This certificate and transfer after- wards came into the hands of one Coxon who acted on behalf of a syndicate formed to speculate in shares in another company. The Defendant financed this syndicate and the provisional certificate and blank transfer of the 50 shares in

question were with other securities pledged by

Coxon with the Defendant as security for his advances. In October 1891 the Plaintiff's pro- visional certificate was exchanged for an ordinary certificate which the Defendant has ever since held. In March 1892 dividends were paid on those shares and the Defendant as holder of these 50 shares demanded these dividends from the

3

Plaintiff and received them from him. The operations of the syndicate resulted in consider- able loss. Their accounts with the Defendant were closed and in October 1892 the Defendant became the absolute owner of the shares. This

at least is the conclusion arrived at by both Courts in Hong Kong from the entries in the Defendant's books and there are no grounds on which this Board can come to any different conclusion.

In November 1893 a call of 1. per share was made payable by four instalments of 58. each. The first three of these instalments payable in November 1893, February and April 1894 were at the Plaintiff's request paid by the De- fendant to the Plaintiff and by him to the Bank. The Defendant said he was not liable

to pay them; and in his books he debited the Plaintiff with those payments but there is no evidence that the Plaintiff was informed of this. The fact that the Defendant did not at this time debit Coxon with these calls seems to their Lordships very strong evidence that at this time Coxon's interest in these shares was at an end

and they belonged absolutely to the Defendant.

On the 10th April 1894 the Plaintiff wrote to the Defendant asking that the shares might be transferred out of the Plaintiff's name but the Defendant declined to get this done, and the Plaintiff said no more about it until June 1894 when the fourth instalment of 58, in respect of the call of 17. became duc. The Plaintiff then asked the Defendant to pay this instalment and he did so but debited the Plaintiff with the amount

as before. Shortly afterwards the Plaintiff's solicitors wrote to the Defendant and asked him to have the shares transferred out of the Plaintiff's name. But the Defendant declined, saying that the shares were lodged with him by Coxon who was absent from the Colony.

India