422
THE HONGKONG WEEKLY PRESS AND
MR. FRANCIS AND THE RECOGNI-
TION OF HIS PLAGUE WORK. The community will sympathise with Mr. FRANCIS in the treatment to which he has been subjected by the Government in con- nection with the recognition of his plague services. It was generally understood that he would at least be made a C.M.G., and to ask him to accept a paltry inkstand while conferring a C.M.G.-hip upon his colleague on the Permanent Committee, Mr. F. H. MAY, can only be construed as a marked and intentional insult. Every one is pleased that Mr. MAY has been so deservedly hon- oured, but the fact that his services have been acknowledged in that form throws into greater relief the shabby treatment accorded to Mr. FRANCIS. The explanation is perhaps not far to seek. In the first place Mr. FRANCIS is not an official, and in Crown Colonies the Government is very chary of conferring honours outside the charmed circle, however great may be the services rendered; and, in the second place, Mr. FRANCIS has on certain points deemed it bis duty to oppose the Government. His opposition has sometimes been expressed
[June 6, 1895.
seem to have been pursued further. Dr. | by the Company. The respondent (Hill) there- Į sale is not according to the usages of the Stock ATKINSON certainly expressed the opinion upon instructed his sharebrokers, Messrs. Chater Exchange, and the question arises whether there that the Medical Officer of Health should be and Vernon, to sell the said shares and, on April is an implied contract on the part of Gomes, a subordinate officer of the Colonial Surgeon, 12th, they agreed with another broker, Mr.if he does not choose to fill up the transfer Gubbay, for the sale to him of such shares, no or get a purchaser from himself to fill it in order that his services might be available enquiry being made as to whether Gubbay was up and register it, to indemnify Hill against departmentally in the event of the general buying for himself or as agent for another. On the consequences of his suffering Hill's name staff being reduced through illaess or other the 25th April, 1889, ous Paul Jordan, a mem- to be continued on the register. It' was causes; and the witness was also of opinion ber of the firm of Chater and Vernon, having contended by counsel for the appellant that that with the addition of such an officer to received the share certificate, or, as the parties no contract of indemnity, expressed or im- the Medical Department the Sanitary Board call it in the case, the scrip for the said shares, plied, arose botwoon Hill and Gomes; but that, might be abolished, but he never seems to have from Hill, delivered the same to Gubbay and even if such contract was implied, it did not ex- also an instrument of transfer, duly executed by tend to calls mads after Gomes bad himself contemplated that a Medical Officer of Health Hill, in exchange for a cheque drawn by Gubbay parted with the shares, and the Court was asked should be appointed who should be in for the agreed price, but, in such transfer, a to infer that Gomes had parted with the dependent alike of the Colonial Surgeon and blank space was left for the name of the shares, because the calls in 1890 were paid of the Sanitary Board, which is what the purchaser of such shares and the transfer either by Brodie or Rose. The counsel Medical Committee have been led, either was not signed by any person as transferee. for the respondent, on the other hand, con- consciously or unconsciously, into recom- On the same day, 25th April, 1889, Gubbay de-tended that, on the sale of the shares, as there livered to Gomes (the appellant) the said scrip mending.
was a liability existing thereon, known to both and instrument of transfer with the name of the parties, and as the purchaser was entitled purchaser still left in blauk, in exchange for a from the time of the sale to all the benefits of cheque for the amount, Gubbay had paid, plus the shares, there arose an implied contract by $1250 for brokerage due to Gubbay, who had pur- the pu chasor to bear all the burden in cou chased the shares for and on account of Gomes nection with the shares from the time of sale (the appellant). No steps were taken at any and to indemnify the vendor against all calls time by anyone to see that the shares were duly made after the sale; and he further contended transferred in the books of the Company from that if Gomes (the purchaser) himself parted Hill's name to that of any person as purchaser with the shares to another later on be although Mr. Jordan, in bis evidence, stated had a similar right of recourse and that he particularly told Mr. Gubbay to trans- indemnity as against the purchaser from him. for the shares to the purchaser's name as they Now, pausing for a moment to look at the mat- were not fully paid up and Hill's name still apter from the point of view of convenience, it is pears on the register of shareholders of the to be remarked that there is no privity of cou Company as the owner of the shares. In March, tract between Hill and sub-purchasers from 1890, a call bavidg been made, such call, in re- Gomes who did not fill up or sign the transfer. spect of the said shares, Nos. 2,576 to 2.625, was There has never been a novatio; and if Hill has paid by one W. Brodie, who also paid a subse- no remedy against Gome he, clearly, has none quent call in respect of the said shares in July, against any sub-purchaser from Gomes. More. 1890; and it also appears that a further over, if there were any such romedy, the vendor call in respect of those shares was paid in might be unable to ascertain the names of the October, 1890, by one Thomas Isaac Rose. later purchasers and the dates of the transac In the month of December, 1894, the respon- tions. Indeed, in this case, it was stated the dent Hill, as registered owner of the said shares, present possessor of the share certificate and the was required by the liquidator of the Company blank transfer is unknown. The remedy of the to pay a further and final call in respect thereof, vendor, if any, against that person is therefore and he thereupon raid to the liquidator the valueless. If, however, the vendor has a remedy sum of $1,103.59 and claimed to be indetanified against the purchaser, and the purchaser can by Gomes for such payment. Gomes, denying claim indemnity from the sub-purchaser from. bis liability, was sued in the Summary Court for him, and so ou through the chain, each party $1,000, the plaintiff, Hill, abandoring the bas the means of knowing to whom he delivered difference so as to bring the claim within the the share o rtificate and the transfer and when. summary jurisdiction of the Supreme Court, But then the question arises what is the law with what may have been considered un-
The learned Judge, Mr. Acting Justice Wise, upon the subject, the jurisdiction of the Court necessary warmth, but to allow petty con- gave judgment for the plaintiff, holding Gomes being equitable as well as legal in the stricter siderations of that kind to weigh in a matter liable to indemnify Hill. Ir. Gomes being souse. In Maxtod v. Paine, Law Reports, 6 such as this would betoken a very small dissatisfied
jádgment, obtained, Exchequer, p 132, decided in 1871, Lord Black- mind. Whether the responsibility for pass-through his counsel, Mr... J. Francis, Q.C., buru (then Mr. Justice Blackburu) in an ela- ing over Mr. FRANCIS in the distribution of leave to appeal under 18ction 41 of Ordin- borate judgment, before examining the effects ance 14 of 1873, aud the ort has, therefore, to of a contract made on the Stock Exchange, dis- honours rests with the Colonial Office or determine whether Hill is, in the circum- cusses the effect of a contract made of the Stock the local Government cannot, however, be stances, entitled to compel Gomes to indemnify Exchange altogether; and he says, at p 150 :-- determined in the absence of information as
him in respect of the fiual call before mentioned. "Now I apprehend that a contract made for the to the character of the representations made, It seems clear that the brokers were acting re- sale of 100 shares in a specified company, at a but, whoever is at fault, the omission of Mr. spectively for their principals, Hill and Gomes, particular price (if not qualified by any special FRANCIS's name is a disappointment to the and that there was a valid sale of the shares, agreements or customs), would require the colony.
therefore, by Hill to Gomes. It is equally clear person who had contracted to sell, or rathor to that, as no tranfer was registered, Hill, as be- supply the sharos, to be ready and willing, in a tween himself and the Company, remained liable reasonable time after making the bargain, to for calls. The transfer was in the Company's give to the buyer the full benefit of the owner- usual form, which is similar to that in re-ship of the specified number of shares in the gulation 9 of Table A. It was not required to be by deed and could, therefore, be filed up by Gomes if he had chosen to add his name and to sign it. The Company did not go into liqnida. tion before 1892, and if the transferee had filled in and signed the transfer already executed by Hill and sent it and the share certificate to the Com; any for registration, there is no reason to doubt that the transferee's name would have been duly registered in place of Hill's. The transfer transferred." subject to the several conditions upon which Hill held the shares." one of which was to pay calls. When Hill had put Gomes iuto possession of the
fer with blanks for the transferee's name and signature, Hill had done all that it was in cumbent upon him to do to pass the property in the shares to Gomes, who upon the receipt of the transfer became, potentially, the owner of the shares and might have made his title perfect at any time. The blank for the name of the transferee was for the benefit and convenience of the buyer. Had the sale been on the Eng. lish Stock Exchange the name of the ultimate purchaser would have been given on the name day and the transfer from the seller would have been made out to such purchaser. Here the
SUPREME COURT,
28th May,
IN APPELLATE JURISDICTION.
BEFORE THE FULL COURT-THE HON. W. M⚫ GOODMAN (ACTING CHIEF JUSTICE) AND MR. T. S. SERCOMBE SMITH (ACF- ING PUISNE JUDGE).
HILL V. GOMES-JUDGMENT.
Mr. J. J. Francis, Q.C. (instructed by Messrs. Wilkinson and Grist), appeared for the appel- lants, and Mr. Sharp (instructed by Mr. Victor H. Deacon) appeared for the respondent. The Acting Chief Justice (Hon. W. Meigh Goodman) delivered the following judgment:- The special case, stated by the parties, under section 44 of Ordinance 14 of 1873, sets out the facts upon which the decision of this Court is asked. From that case it appears that in April, 1889, Hill (the respondent) was the registered holder of 50 shares of $50 each in the Labuk Planting Co., Limited, upon each of which shares the sum of $10 only had been paid up, leaving a liability of $40 upon each of the said shares, which sum was liable, under the articles of association of the Company, to be called up at such time or times as might be deemed advisable or necessary
with the
share certificate and also of the excouted trans-
Company." Then, later on, be continues:- And, on the other hand, the buyer would be bound not only to pay the price and to accept the benefits of ownership, but also to re- lieve the seller from all the burdens of owner. ship. When the shares are not paid up in full, this last object is effectuated when the shares are transferred by deed to someone who executes the transfer and that transfer is registered, aud, con- sequently, in an ordinary case, the contract of the buyer is to procure that the transfer shall be ex- ecuted by a transferee and that the transfer shall be registered, so as to relieve the registered owner of the shares tendered in fulfilment of the contract from all liability to future calls." Then, at p. 151, be continues:-"But I think that (in the absence of some express stipulation or, what comes to the same thing, some custom to that effect, incorporated in the contract) there is no obligation on the person who has agreed to
buy the shares to have the transfer made out in his own name, or registered in his own name, and consequently that the person who has agreed to sell has not the right to object to execute a transfer to a nominee of the buyer any more than the vendor of real estate could object to execute, when required, a conveyance
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