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On the other hand, it was argued, that But there is a clause in the act of parliathe law must be considered as settled by the ment, by which the general law and the case of The Vauxhall Bridge Company, the general rule in this respect, is controlled. authority of which had never till now been It is by an express provision in the act of doubted. Independently of authority, the parliament, expressed in the most general interest of the shareholder was a right to terms, declared, that those shares shall be profits arising out of land ; and though the considered as personal estate, and transmisact made the shares personal estate for the sible as such. Nothing can be more genepurposes of transmission, they still conti- ral than the terms. But it is contended at the nued to be a species of property which bar, in the first place, that the shares were to savoured of the realty. The bankrupt would be considered as personal estate only for not have gained false credit by them : for the purpose of transmission to the personal it was only to other shareholders that representatives of the shareholders. The the circumstance of the shares standing in words do not authorize such a limited conhis name could be known. The public at struc n. large had no right to inspect the books of The words are—that they shall be perthe company; in fact, there was not in the sonal estate, and be transmissible as such. bankrupt such an apparent possession as It is then contended, that they are to be could deceive any one.

considered as chattels real. On what arguIn a case of so much importance, the ment, however, that is founded, I find it Court, at least, would not overturn the difficult to collect: why they are to be conprinciple established by the Master of the sidered as chattels real, or why the legislaRolls, without giving the Canal Company ture should have meant that they should be an opportunity of obtaining the opinion of considered as chattels real, not having so a court of law,

expressed it, I find no means whatever to collect. The persons, who are shareholders,

are absolute holders of the entire interest. On the first day of Michaelmas term, in the property, whatever that is. The and while the appeal stood for judgment, legislature has declared it shall be personal the respondents presented a petition, pray- estate; and there is nothing whatever in the ing, that, before judgment was given, the act of parliament that I can discover, at all question might be re-argued, or a case controlling the effect of that provision. directed for the opinion of a court of law. If that be so, the consequence follows,

that this property, if held by the bankrupts The Lord Chancellor. Dilworth and at the time of their bankruptcy, would have Company, who are bankers, carrying on passed to their assignees; but that is not business in the county of Lancaster, were the question in this case. The question is, the treasurers of the Lancaster Canal Com- whether the property was under the order pany, which was incorporated by act of and disposition of Dilworth as the reputed parliament in the year 1792, and had the owner. power of purchasing and holding lands as At the time Dilworth and his partners a corporation for the purpose of that con- became treasurers of the concern, they cern. They held, and now hold, real pro- entered into a bond in the penalty of 20,0001. perty, and the proceeds arising from that for the purpose of indemnifying the comconcern are proceeds arising out of a real pany against any loss which might arise in estate. For the purpose of carrying on the consequence of their failing properly to acconcern, it became necessary to raise a count. In addition to this bond, Dilworth, certain sum of money; that sum of money who at that time was the holder of 345 shares, was raised by a subscription for shares, and transferred 300 shares to the company, and the shareholders were entitled, under the a trust deed was executed, by which the comprovisions of the act of parliament, to the pany undertook to pay the dividends of the profits of the concern. As the case, there- shares to Mr. Dilworth, until there should fore, thus stands, these profits, which the be some default on the part of the treashareholders are entitled to receive, are surers; and, in case of such default, they profits arising out of real estate.

were to have the power of selling the shares to the extent of making good their loss. position as the apparent owner : and I think By the provisions of the act of parliament, therefore, that the property passed to the for the transfer of shares a certain course is assignees. to be pursued: a particular form of instru. A case was cited, which, at first view, ment is to be executed, which is set out in without looking at the act of parliament, is the act. It is provided, that a duplicate a decision adverse to the opinion I am now shall also be executed, and that duplicate is pronouncing—the case of The Vauxhall to be lodged with the committee, or with the Bridge Company ;-in the act of parliament clerk of the committee, and entered in a establishing which company, there was a book; and, until such duplicate has been clause similar to that contained in the predelivered to the committee, or the clerk, sent act, When that case came before the and entered in the book, the partner is not Vice Chancellor, it is remarkable, (accordto be entitled to receive any profits of the ing to the report of it,) that it was argued shares, or to act as a proprietor. And there by the counsel on both sides, upon the asis a further provision, that the names of the sumption that the shares were personal proproprietors shall be entered in a book to perty-not the slightest doubt is thrown upon be kept for the purpose by the clerk of the that point, in any part of the argument. It concern. In this case the provisions were is assumed on the one side, and assumed on not complied with; an instrument of trans- the other throughout, that they are personal fer alone was executed, and that was deli- property. After the argument, it became vered to the clerk ; no duplicate was exe- necessary to refer a question to the Master, cuted, no entry was made of the execution and the question was simply this, namely, of the transfer agreeably to the provision of

what shares were intended to be compréthe act of parliament; no entry was made, hended in the agreement ? The Master indicating that Dilworth had ceased to be a made his report, and the case came again proprietor. It is quite obvious, as I collect before the Court. When the case came from the transaction, that it never was in- again before the Court, the attention of the tended that he should cease to be the appa- Court does not appear, by the argument of rent proprietor ; it was intended that this counsel, to have been directed at all to the should be a security—a mere security in the general subject. The Court at that time, hands of the company—to be made use of without having the act of parliament before it, merely in case of the default of the trea- declared the shares to be real estate ; and,

It is perfectly clear, therefore, in consequence of that, the observations to taking the provision of the act of parliament which I refer were thrown out by the and the trust deed together, that, during learned Judge, who presided on the occasion. the whole of this period, and at the time of It does not appear to me, therefore, that I the bankruptcy, Mr. Dilworth was entitled am oppressed by the weight of that authoto receive the dividends on his shares. It rity. I certainly should feel the weight of it, is perfectly clear also, that he was entitled if I supposed, that, at the time, the attention to vote as a proprietor.

There seems,

of the Court had been directed to the clause therefore, as far as the public are concerned, in the act of parliament to which I have adto have been no alteration in the apparent verted. I do not think, therefore, that that situation of Dilworth ; he had originally case can be considered, under the circumbeen a proprietor of these 300 shares, re- stances to which I have referred, as governceiving the dividends, voting as a proprietor; ing the case now before the Court. and those transactions, which took place of opinion, therefore, that these shares, or between him and the company, did not at rather the benefit of these shares, passed to all vary his apparent situation, for he was the assignees of the bankrupts. still in the books of the company as a proprietor ; there was no entry of his having of the Canal Company dismissed.

Order reversed, and the original petition made any transfer of his shares; he was still entitled to receive his dividend, and still The petition presented by the respondents entitled to vote as a proprietor. I should after the argument, was dismissed with therefore consider, under the circumstances, costs, as altogether irregular. that this property was in his order and dis


I am




thirteenth :-and he refused to make the Nov. 2.

order, upon a motion, of which notice had

not been given. Construction of the thirteenth order.

After a first amendment, a motion for Nov. 4.-Mr. Koe made the motion ex leave to amend the bill cannot be made ex- parte before the Lord Chancellor, and urged cept on notice.

in support of it the same arguments as he If, however, the amendment is of a trifling had stated to the Vice Chancellor ; and connature, as in the description of a party, the tended, that the enormous expense, occaCourt will allow such an amendment to be sioned by the appearance of a vast number made on an ex parte application.

of parties on a mere motion for leave to

amend, was so great an evil, that the Court The bill had been amended. A motion would adopt such a construction of the was now made for leave to amend the bill order as would save the suitor from so great again. Notice of the motion bad not been a hardship. given; but the other forms required by the 13th order (1) had been complied with. The Lord Chancellor stated, that he would

Mr. Koe now submitted, that it had been take the matter into his consideration. held by the Lord Chancellor, that it was On the following day his Lordship said, not necessary under the eighteenth order (2), that, on looking at the language relating to to give notice of a motion to enlarge publi- amendments, and adverting to the difference cation; and, that the same principle ought between it and the wording of the 18th to be applied to the thirteenth order. order, be did not think that the 1Sth order

would receive the same construction as had The Vice Chancellor said, that the language

been put upon

the 18th. Therefore, a moof the two orders was so different, that the tion for leave to amend, after the bill had been construction put upon the eighteenth order once amended, could be made only upon could not determine the construction of the notice.



(1) “That the plaintiff shall be at liberty, before filing a replication, to obtain, upon 1829. motion or petition without notice, one order for leave to amend the bill; but no further leave to amend shall be granted before repli

In another case, Mr. Wakefield moved cation, unless the Court shall be satisfied by ex parle, before the Lord Chancellor, for affidavit that the draft of the intended amend. leave to amend, stating, by affidavit, what ments has been settled, approved, and signed the amendments were. They were merely by counsel, and that such amendments are not

in the description of one of the parties. intended to be made for the purpose of delay

Mr. Wakefield contended, tliat there was or vexation, but because the same are considered to be material to the case of the plain- nothing in the language of the thirteenth tiff; such affidavit to be made by the plaintiff, order, which made it imperative on a party or one of the plaintiffs where there are more to give notice of a motion to amend. The than one, or his, her or their solicitor, or by object merely was, to cause the party to such solicitor alone, in case the plaintiff or satisfy the Court that there was reasonable plaintiffs, from being abroad or otherwise, shall

ground for giving him leave to amend, and be unable to join therein ; but no order to amend shall be made before replication, either

ihat his object in amending was not an imwithout notice or upon affidavit, in manner

proper one.

This was effected by the affihereinbefore mentioned, unless such order be davit which was required of him, and by obtained within six weeks after the answer, if his being compelled to state the amendthere be only one defendant, or after the last ments. of the answers, if there be two or more defendants, is to be deemed sufficient.”

The Lord Chancellor, in this case, ad(2) “ That publication shall not be enlarged, verting to the nature of the amendments, except upon special application to the Court, supported by affidavit, and at the cost of the

which were merely formal, gave leave to party applying, unless otherwise ordered by amend, stating, at the same time, that, acthe Court.''

cording to the construction which he had put on the thirteenth order, notice of a mo- for the first time given by the answers to tion for leave to amend, after a first amend- the amended bill, except an amendment ment, must in general be given.

inserting the names of two defendants in His Lordship added, that he would take the place of one of the former defendants, an opportunity of consulting with the Mas- the necessity of which substitution was dister of the Rolls and the Vice-Chancellor on covered on the 9th of October last, when the subject, in order to see what course he was first informed of the fact of those ought to be adopted, with a view to avoid defendants, and not the one originally what was certainly no small inconvenience, named, having an interest; and that that

- the great expense attending motions to original defendant had always, previously amend made


to that time, refused to give any informa-
tion respecting his interest in the premises.

The affidavit further stated, that the pro1830.

posed amendments were not intended to be COTTINGHAM V, POTTS. Feb. 1.

made for the purpose of delay or vexation,

but as being material and essential. Construction of the thirteenth order.

There were already upwards of five Leave given on an ex parte application and twenty defendants. to amend the bill a second time in material

The Solicitor General, in support of the points.

motion, insisted on the great expense

which would be occasioned by giving notice The plaintiffs claimed to be entitled to

of the application. the equity of redemption of certain estates; and the bill was filed for the purpose of

The Lord Chancellor, upon this ex parle redeeming them. The defendants were the application, made the order, giving the persons who were in possession of parts of plaintiffs leave to amend. the property, or claimed an interest in it.

The answers of the defendants to the original bill stated, that certain persons by name, who were not defendants, and other 1830. persons who were not named, had interests

Feb. 4.

THE KING OP SPAIN V. HULLETT. in the property. The bill was amended by making the

Construction of the thirteenth order. persons, who were named, defendants, and Process being prayed against two defenby calling for a discovery of the names and dants, who were within the jurisdiction, and interests of the persons who were not against a third defendant, who was stated to named.

be out of the jurisdiction, whenever he should The answers to the amended bill gave come within the jurisdiction, the two defenthis discovery, which made it necessary to dants who were within the jurisdiction anamend again by bringing these other parties swered ; the third defendant had not apbefore the Court.

peared; and the plaintiff oblained, as of course,

an order to amend after more than six weeks A motion for leave so to amend was now had elapsed, from the time when the answer made ex parte, supported by an affidavit of of the only defendants who were within the the solicitor. He stated, that he was jurisdiction, was to be deemed sufficient :advised not to apply for leave to amend Held, that the order was irregular. until all the answers to the amended bill were filed; that he had used all possible The bill was filed against two defendants diligence in obtaining all the answers who were within the jurisdiction, and prothereto, and that the last answer was filed cess was also prayed against Justo de Maon the 24th December last ; that the draft chado, when he should come within the of the intended amendments had been jurisdiction, it being stated that he was settled and approved, and signed by counsel, resident in the Netherlands. and that such amendments had all been In July 1828, the two defendants who made in consequence of the information were resident within the jurisdiction, put in their answer: and no exceptions had been was a defendant who had not answered ? A taken to it ; so that it was to be held suf- defendant, who is not amenable to the proficient from the first seal before Michael- cess of the Court, is not a defendant within mas term 1828.

the meaning of the thirteenth or the sixNo appearance had been entered for teenth order. Machado ; nor was it suggested that process had been served on him.

Sir Charles Wetherell and Mr. Wheatly,

contrà. On the 18th of January 1830, the plain- Here there is a defendant, whose answer tiff, by motion of course, obtained an order, is not to be deemed sufficient ; for he reciting that the two above-mentioned de- has not answered at all. The plaintiff, fendants had answered on the 10th of July therefore, is within the terms of the order ; 1828 ; that the plaintiff had not filed a re- and his power of amending remains as plication, and that the defendant Machado it would have been under the old prachad not put in his answer ; and therefore tice of the Court. The only question giving him leave to amend, on payment of is, whether Machado is a defendant; and 20s. costs to the defendant Machado. all the authorities hold, that a person out

of the jurisdiction is made a defendant A motion was now made on behalf of the by praying process against him when he defendants who had answered, to discharge comes within the jurisdiction. If the dethis order for irregularity, as contrary to the fendants had moved to dismiss, the plaintiff latter part of the 13th order, which pro- would have been obliged to shew that he vides

had used due diligence to get in Macha“ That no order to amend shall be made be

do's answer : and if he had not done all fore replication, either without notice or upon

that he might have done, the bill would affidavit, in manner 'hereinbefore mentioned,

have been disinissed. But the 13th unless such order be obtained within six order contains no words which imply that weeks after the answer, if there be only one the plaintiff is not to liave leave to amenii, defendant, or after the last of the answers, if unless he gets in the answers within a given there be two or more defendants."

time. The remedy against delay is proMr. Pepys, for the motion.

vided in such a case, not by limiting the

plaintiff's power to amend, but by giving As this order bas been obtained after the defendants, who have answered, the more than six weeks have elapsed from the power of dismissing the bill. tine when the answer of the only defendants who have answered, was to be deemed The Vice Chancellor thought that the sufficient, it would clearly be irregular, if

clearly be irregular, if plaintiff was not at liberty to amend under there were no other defendant. But it is the 13th order; and that, for this purpose, suggested that there is a defendant (Ma- Machado could not be considered as a dechado,) who has not answered. He, how- fendant within the meaning of the 13th ever, cannot be considered a defendant for order; and that this could not be considered the present purpose. The 13th order con

as a case coming within the fair construction templates only defendants who have an- of the last clause of that order. swered, or, at least, whose answers can be compelled to be put in by the process of the His Honour, therefore, discharged the Court. The plaintiff has time to amend, order to amend: but as it was a new questill the last of the defendants has answered: tion, he ordered the costs to be costs in the can that be held to leave him at liberty to amend indefinitely, by bis merely praying process against some person living out of the jurisdiction, in whom he shall allege an interest ? If the defendant had moved to dismiss under the 16th order, could the plaintiff have met the motion by saying, that there Vol. VIII. CHANC.



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