CO129-461 - Governor Sir Stubbs - 1920 [5-7] — Page 136

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the business of the Corporation is authorised to be carried on; while Article 145 provides for the appointment of officers or servants of the Corporation as inspectors, managers or agents at such places. Article 146 read as follows: - *The Court by letters of attorney or other deed under the seal or by writing not under seal, may delegate to such director, local committee, inspectors, managers, agents and other officers respectively any of the business or affairs of the Company. I may also refer to Article 158, which vest very wide discretionary and supplementary powers in the Court of Directors. It must, I think, be taken that the delegation to the re- presentative of the Corporation in London and at Shanghai of the power of opening and keeping Registers of Share holders of those places was made under some one or more of these articles. Then, was that delegation rightly

Does it come within the scope of the Articles ? I am of opinion that the powers of delegation con- ferred by these Articles are sufficiently large and general to render it necessary for me to answer these ques- tions in the affirmative. I therefore hold that the Courts of Directors were within their rights and powers, in authorising the representative of the Corporation in London and at Shanghai to open and keep such Registers; that the Registers are good and valid Registers; that the shares now in question which are borne on the Register are not bona notobilia within the Probate Jurisdiction of this Court; and that the answer to the question sub- mitted by the special case must be in favour of the defendant.

made?

A few more observations may be added. The course of practice of the Corporation which it is now sought to invalidate as being ultra vires has existed for many years, in part at least before the incorporation of the Corporation. It may therefore fairly be assumed that the Ordinance and the Deed of Settlement were framed with a view to such a state of things, and that the legislature in making the Ordinance and the Governor in ap- proving the Deed of Settlement, were aware of its existence and impliedly gave their sanction to its continuance But, however this may be, it is at any rate a sound and well settled rule of construction that where the Court finds itself in presence of a long established and convenient course of practice or conduct which has grown up under the sanction or alleged sanction of a written instrument, it ought, if possible, to adopt such a construc tion of the instrument ut res magis valeat gram pereat.

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From the evidence before me it appears that there is a duplicate seal of the Corporation ket in London, but there is no Seal at Shanghai. There may therefore be difficulty about the issue of share certificates at Shanghai, but in any event, if there is such a difficulty, it is one between the Corporation and its sharehold- ers and does not affect the principle of decision in this case.

As to the effect of the finding that the local Registers are good and valid Registers, reference may use- fully be made to the English Acts on the subject of Colonial registers. At p.240, Hanson's Death Duties the effect of these Acts in relation to probate duty is thus stated:- The 45 and 47 Vict.c.30 which authorises companies registered under the Companies Act of 1862 to keep Colonial registers of members provides by sec.7 that upon the death of any member so registered, the interest shall be deemed part of his estate within the United Kingdom for probate or inventory purposes in like manner as if he were registered at the Companies regis tered office. By sec.18 of the 52 and 53 Vict. c.42, however, this provision is confined to persons domiciled in the United kingdom. It would appear, therefore, that shares in such a company, registered in the Colonial Register by a person domiciled in a British possession, will be locally situate where the Register is; but that where the person was domiciled in the United Kingdom, such shares will be locally autuate in the United Kingdom The Court is not asked to decide the questions of the liability to probate duty in the Colony of dividende on the shares in question, but it was admitted by Mr. Francis that dividends stand in a somewhat different posi tion from the shares, and I have no doubt the parties can come to an agreement about them.

In accordance with the terms of the agreement between the parties, there will be no order as to costs.

(Sd.) J.W.Carrington.