The-Hong-Kong-Weekly-Press-1895-06-06 — Page 7

June 6, 1895.]

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CHINA OVERLAND TRADE REPORT.

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423

on the ground that it was not a conveyance law pleadings, whereas this Court gives equitable | 1837, shows that where. by acci lent, the trans. direct to the person with whom he made his as well as legal remedies. contract, or the vendor of goods could refuse to judgment I have cited before, criticises Humble tration until after the company had stopped Blackburn, J, in the fores delayed sending in his transfer for regis. deliver them to the order of the purchaser and insist on delivering them to the purchaser him- chequer decided that there was no contract at feror against calls which he had to pay owing v. Langston thus there: The Court of Fx-payment, he was bonud to indemnify his trans- self He has a right to require his contractor to procare the transfer to be executed by his remedy being in equity; as it is expressed, at however, was not a case of blank transfer, It law to indemnify him (the vendor), his only to his name remaining on the register. That, nominee and to be registered after execution, p. 530:-The plaintiff, by his neglect to get the seems to me that it would be inequitable to hold so as to relieve him from all future liability, and conveyance completed and the transfer entered, that after Hill had sold to Gomes and had done he has a right to hold his contractor personally becomes a trustee for the defendant and his all that was necessary to enable Gomes or his liable if this is not done, but, in my opinion, he assigns, and receives the profits and must pay nominee to register, he, Hill, was to pay future has no right to dictate to the contractor the outgoings, but there is no authority for ealls and have no redress because, for Gomes's whether he shall do this by taking the saying that the law makes any promise convenience, a blank transfer was handed to him shares in a nominee's name or in his own Now, in the present case, Hill, the seller, did all that the trustee may pay on his own account, opinion this appeal must be dismissed with costs. by a cestui que trust to a trustee simply to repay instead of one with his name inserted. I am of give the full benefit of the ownership of the still less on that of the subsequent cestui que shares to Gomes, He did all he had to do and trusts. This latter part of the judgment was, of an agreement entered into on the 11th April, The Acting Puisne Judge said-In pursuance Gomes could have registered at any time after however, reversed in the Exchequer Chamber in 1810, between certain brokers, the respondent in filling up the blanks. In my opinion, the blanks the case of Walker v. Bartlett." were for the accommodation or convenience of Walker v. Bartlett, the plaintiff, who sold, giv-brokers, caused to be handed to appellant a cer- As regards this case, ou the 25th April,18 0,through the same Gomes, who might have arranged for his sub-ing a blank transfer which the buyer never gottificate for 50 shares in the Labuk Planting Co., purchaser to fill in his name instead of that of filled up by anyone nor registered, claimed from Ld., together with an instrument of transfer in Gomes and thus have saved the double tramsfer, the buyer indemnity against the extra stamp, and other formalities.

all subsequent blauk. Under this executed contract the vendor. Can payments and liabilities for or in respect of the had certain duties and rights which corresponded Gomes, after having failed to get any name said shares or for or in respect of any calls which with the rights and duties of the vendee. The filled in and the transfer registered, and having might thereafter be made upon them" thus fai ed to relieve the seller from one of the claimed, I meau, in the first count, the one upon raise nó difficulty and consisted respectively of He duty of the vendor and the right of the vendee burdens of ownership, as between him and the which he recovered. that there was an implied the vendor taking all necessary steps to invest the Company, namely, the burden of paying future promise to that effect. calls, be heard to say that, as between him and there had been no further sale by the defendant, vendee being entitled to such investiture. The It is true, in that case, vendee with full proprietary powers and of the bis vendor, Hill, be is not liable to indemnify Hill so that the point of the effect of such subsequent vendor did what was required of him and the against calls which Hill would not have bad to sale did not directly arise. pay had the transfer been filled in and registered P plaintiff was nousuited upon the authority of him:

But at the trial the vendee acquired all that the vendor could give Again, at p. 155, Blackburn, J. says: "It is Humble v. Langston. Ho then obtained a rule to the exact nature of the co-related rights of the The problem to be solved in this case is obvious that, so long as the supplier of the shares enter a verdict on the ground that it was the de vendor and duties of the vendee. By No. 65 of has the personal liability of his contractor, who fendant's duty to procure himself to be registered the Articles of Association is han

song that had, nongkong, the as owner of the shares within a reasonable time shall be deemed to remain a holda of such share

"the tranfarr. - wuand to som ual7thy Yño registering or LP transfer, the burden of the ownership is removed or to rifys be plaintiff against the calls until the name of the dusforce is entered in from him, it is immaterial to him whether that which he had been con belled to pay by reason of the registar in respect thereof" and by Article object is to be obtained by registering one such non-registration by a phehitader was No. 8if the call payable in respect of any share name or another. If it is done he is free; if it on appeal, from the discharge of that rule, that be not paid within seven days after the day on fails he still has the personal liability of the the plaintiff was successful, The Court of which the same became payable, the holder for original contractor, and in no case could be. Appe:1(the Exchequer Chamber) decided that the time being of, or the party entitled to such under the contract. have more. If, indeed, the the buyer need not register the shares in his own share, shall be liable to pay interest for the same." execution of the transfer to a nominee had the name, the blank transfer allowed him to transfer From this it is clear that the transferor, whilst effect of relieving the contracting party from to some other person the same right that he had. his name remained on the register, was liable liability and obliging the person contracting to bat that. in the circumstances, there was au to interest on unpaid calls, and if he was liable supply the shares to look to the nominee alone implied contract to indemnify the plaintiff to pay interest ou calls he was liable to pay the for redress, it would, obviously, be of importance against the consequences of his suffering the calls themselves. According to the instrument to refuse to execute a transfer to any unknown plaintiff's name to be continued on the register, of transfer in the schedule of forms annexed to nominee, but it seems to me clear that the execu-after he had done all that the nature of the the memorandum and articles of association, the tion of that transfer cannot have such an effect.contract between him and the defendant transferor would deliver and the vendee would In Cruse v. Paine, Law Reports, 6 Equity, 641, and of the property which was the subject of it receive the shares subject to the several condi- Gifford, Vice-Chancellor, after pointing out would require him to do to convey a perfect title|tions upon which they were held by the transferor that the contract for the sale, or rather the sup to the defendant. It was ordered that the non-at the time of the execution of the transfer. ply, of shares, standing by itself entitled the suit should be set aside and a verdict should he The respondent Hill exoented the instrument of purchaser to the benefit of the pasrorty in the entered for the plaintiff on the first count. Ia transfer, the appellant Gom's did not. Can sbares, and consequently that he would in a Kellock v. Enthoven, Law Reports, 8 Queen's Gomes b› heard to say that, by not executing Court of Equity be considered as owner, and Bench, p. 458, decided in 1873, the question arose the instrument of transfer on his part, he did as such bound to indemnify the vendor against whether the transferee of shares was bound to not even impliedly bring himself under the con- all calls, proceeds to say :- Surely, it cannot be indemnify the transfere with regard to the ditions mentioned in the instrument of trans- said that, if there is a contract between the transferor's liability as a member of class B as for P When Gomes took the shares, did he take plaintiff and the defendants which makes them a past member. The plaintiff had transferred them subject to the conditions on which Hill distinctly liable to the plaintiff in respect of to the defendant who in turn had transferred held them? That he was aware of the existence these shares and puts them in the same position to M, who had registered Mwas placed in of the conditions is indisputable; there is no as though they were shareholders instead of him, class A as an existing member, and it was held doubt that he paid for the shares and dealt with the mere fact of his having executed, at their that the defendant must indemnify the plaintiff. them and there is no suggestion that he instance, a transfer can alter the liabilities of I am aware this case was not one of blank trans-demurred to the conditions. This being so, I am the one or of the other. I apprehend, in order to fer, but, in the judgment, general principles compelled to conclude that Gomes by his conduct alter those liabilities, you must aver and you must were discussed. At p. 464. Blackburn, J., says impliedly nadertook to hold the shares subject make out this, that there has been another and new Even if Roberts and Crowe (Law Reports, to the conditions under which Hill had been the and different contract entered into and that the 7 C.P. 629) did not decide the matter, owner. One of the conditions under which Hill nature of that other new and different contract is I think it is clear upon the authority of held the shares was that he was to pay calls when that it is to be substituted for the first contract; Walker v Bartlett, and also upon general prin- made. After the transfor this condition attached that, in point of fact, there has been what isciples, that when there was the contract to purto Gomes's holding. Hill's liability was to pay termed a noövatio. In this," adds Blackburn, obase the shares from the vendor, there was also calls to the party, viz., the Company, supplying J., "I quite agree." Now, I have already pointed an implied contract that the vendee would him with the shares; Gomes's liability was to out that no one has filled in the blank transfer bold the vendor harinless from all the burdens pay calls to the party, viz., Hill, supplying him at all, in the present case, and no novatio has of the property which he had taken from the with the shares. ie., Gomes was to indemnify taken place. What Hill did was to sell to Gomes, vendor. The transferee, who is the purchaser of Hill for any calls that Hill might have to pay. and Hill has never substitated any other con the property, was to get all the benefits as long Having established a liability on the part of the tract for that. hill has supplied the shares and as the possession of the property was beneficial; appellant to indemnify the respondent for calls carried out his contract, and as neither Gomes and I think the law implies from that, that the paid by him, it remains to determine the dura- nor his nominee has been registered; he asks purchaser contracts to indemnify the transferer tion of that liability. That duration depends Gomes to indemnify him for calls he had to pay against all the burdens of the property which upon the action of the vendee. As long as the for the shares he had sold to Gomes. It was he, the transferee, has taken. That being so, vendor's name appeared on the register, so long urged by counsel for the appellant that Humble I do not think that that liability is got rid of by did he remain liable to pay calls; the liability of v. Langston, 7 Meeson and Welshy's Keports, p. the purchaser passing over the property to the vendee to indemnify the vendor endures there- 517, a case decided in 1841, showed that Gomes was another, who would enter into a similar contract fore for the same period. And this constitutes not liable at all, and that Walker v. Bartlett, 18 of indemnity as between him and his immediate no hardship to the vendee because it is always in Common Beach Reports, p. 845, a casse decided in vendor. I do not see how that relieves the de- his power to procure that the purchaser from 1856, showed that Gomes, if liable at all, was only fendant from the contract to indemnify the plain himself shall register his own name and so re- so for calls made before he sold the shares again. tiff." Kellock v. Enthoven was upheld on appeal lieve bim (the vendee) from all liability. The Now, in Humble v. Langston, the transfer was in 1874 (see Law Reports, 9 Queen's Bench, 241). conclusion to which I come on general principles required to be by deed, and as le transfer deed I do not think it necessary to discuss the Equity is that the vendee is, under the circumstances of was in blank and the transferee could not, cases of Wyon v Price, 3 De. G. & S. 310, and this case, liable to indemnify the vendor against legally, fill up the blanks in a deed, he never be Evans v Wood, Reports 5, Equity, p. 9. beyond calls so long as the vendor's name is on the came potentially owner of the shares at all. saying that, so far as they are applicable, they register. I shall now notice the cases of Ham- The case, moreover, was decided on the common assist the plaintiff. The latter case, decided in ble v. Langston (7 ̧M, & W. 517) and Walker v.