On the other hand, it was argued, that the law must be considered as settled by the case of The Vauxhall Bridge Company, the authority of which had never till now been doubted. Independently of authority, the interest of the shareholder was a right to profits arising out of land; and though the act made the shares personal estate for the purposes of transmission, they still continued to be a species of property which savoured of the realty. The bankrupt would not have gained false credit by them: for it was only to other shareholders that the circumstance of the shares standing in his name could be known. The public at large had no right to inspect the books of the company; in fact, there was not in the bankrupt such an apparent possession as could deceive any one.

In a case of so much importance, the Court, at least, would not overturn the principle established by the Master of the Rolls, without giving the Canal Company an opportunity of obtaining the opinion of a court of law.

On the first day of Michaelmas term, and while the appeal stood for judgment, the respondents presented a petition, praying, that, before judgment was given, the question might be re-argued, or a case directed for the opinion of a court of law.

The Lord Chancellor. Dilworth and Company, who are bankers, carrying on business in the county of Lancaster, were the treasurers of the Lancaster Canal Company, which was incorporated by act of parliament in the year 1792, and had the power of purchasing and holding lands as a corporation for the purpose of that concern. They held, and now hold, real property, and the proceeds arising from that concern are proceeds arising out of a real estate. For the purpose of carrying on the concern, it became necessary to raise a certain sum of money; that sum of money was raised by a subscription for shares, and the shareholders were entitled, under the provisions of the act of parliament, to the profits of the concern. As the case, therefore, thus stands, these profits, which the shareholders are entitled to receive, are profits arising out of real estate.

But there is a clause in the act of parliament, by which the general law and the general rule in this respect, is controlled. It is by an express provision in the act of parliament, expressed in the most general terms, declared, that those shares shall be considered as personal estate, and transmissible as such. Nothing can be more general than the terms. But it is contended at the bar, in the first place, that the shares were to be considered as personal estate only for the purpose of transmission to the personal representatives of the shareholders. The words do not authorize such a limited construction.

The words are-that they shall be personal estate, and be transmissible as such.

It is then contended, that they are to be considered as chattels real. On what argument, however, that is founded, I find it difficult to collect: why they are to be considered as chattels real, or why the legislature should have meant that they should be considered as chattels real, not having so expressed it, I find no means whatever to collect. The persons, who are shareholders, are absolute holders of the entire interest. in the property, whatever that is. The legislature has declared it shall be personal estate; and there is nothing whatever in the act of parliament that I can discover, at all controlling the effect of that provision.

If that be so, the consequence follows, that this property, if held by the bankrupts at the time of their bankruptcy, would have passed to their assignees; but that is not the question in this case. The question is, whether the property was under the order and disposition of Dilworth as the reputed

owner.

At the time Dilworth and his partners became treasurers of the concern, they entered into a bond in the penalty of 20,000l. for the purpose of indemnifying the company against any loss which might arise in consequence of their failing properly to account. In addition to this bond, Dilworth, who at that time was the holder of 345 shares, transferred 300 shares to the company, and a trust deed was executed, by which the company undertook to pay the dividends of the shares to Mr. Dilworth, until there should be some default on the part of the treasurers; and, in case of such default, they were to have the power of selling the shares

to the extent of making good their loss. By the provisions of the act of parliament, for the transfer of shares a certain course is to be pursued: a particular form of instrument is to be executed, which is set out in the act. It is provided, that a duplicate shall also be executed, and that duplicate is to be lodged with the committee, or with the clerk of the committee, and entered in a book; and, until such duplicate has been delivered to the committee, or the clerk, and entered in the book, the partner is not to be entitled to receive any profits of the shares, or to act as a proprietor. And there is a further provision, that the names of the proprietors shall be entered in a book to be kept for the purpose by the clerk of the concern. In this case the provisions were not complied with; an instrument of transfer alone was executed, and that was delivered to the clerk; no duplicate was executed, no entry was made of the execution of the transfer agreeably to the provision of the act of parliament; no entry was made, indicating that Dilworth had ceased to be a proprietor. It is quite obvious, as I collect from the transaction, that it never was intended that he should cease to be the apparent proprietor; it was intended that this should be a security-a mere security in the hands of the company-to be made use of merely in case of the default of the treasurers. It is perfectly clear, therefore, taking the provision of the act of parliament and the trust deed together, that, during the whole of this period, and at the time of the bankruptcy, Mr. Dilworth was entitled to receive the dividends on his shares. It is perfectly clear also, that he was entitled to vote as a proprietor. There seems, therefore, as far as the public are concerned, to have been no alteration in the apparent situation of Dilworth; he had originally been a proprietor of these 300 shares, receiving the dividends, voting as a proprietor; and those transactions, which took place between him and the company, did not at all vary his apparent situation, for he was still in the books of the company as a proprietor; there was no entry of his having made any transfer of his shares; he was still entitled to receive his dividend, and still entitled to vote as a proprietor. I should therefore consider, under the circumstances, that this property was in his order and dis

position as the apparent owner: and I think therefore, that the property passed to the assignees.

A case was cited, which, at first view, without looking at the act of parliament, is a decision adverse to the opinion I am now pronouncing the case of The Vauxhall Bridge Company;-in the act of parliament establishing which company, there was a clause similar to that contained in the present act. When that case came before the Vice Chancellor, it is remarkable, (according to the report of it,) that it was argued by the counsel on both sides, upon the assumption that the shares were personal property-not the slightest doubt is thrown upon that point, in any part of the argument. It is assumed on the one side, and assumed on the other throughout, that they are personal property. After the argument, it became necessary to refer a question to the Master, and the question was simply this, namely, what shares were intended to be comprehended in the agreement? The Master made his report, and the case came again before the Court. When the case came again before the Court, the attention of the Court does not appear, by the argument of counsel, to have been directed at all to the general subject. The Court at that time, without having the act of parliament before it, declared the shares to be real estate; and, in consequence of that, the observations to which I refer were thrown out by the learned Judge, who presided on the occasion. It does not appear to me, therefore, that I am oppressed by the weight of that authority. I certainly should feel the weight of it, if I supposed, that, at the time, the attention of the Court had been directed to the clause in the act of parliament to which I have adverted. I do not think, therefore, that that case can be considered, under the circumstances to which I have referred, as governing the case now before the Court. I am of opinion, therefore, that these shares, or rather the benefit of these shares, passed to the assignees of the bankrupts.

Order reversed, and the original petition of the Canal Company dismissed.

The petition presented by the respondents after the argument, was dismissed with costs, as altogether irregular.

(1) "That the plaintiff shall be at liberty, before filing a replication, to obtain, upon motion or petition without notice, one order for leave to amend the bill; but no further leave to amend shall be granted before replication, unless the Court shall be satisfied by affidavit that the draft of the intended amendments has been settled, approved, and signed by counsel, and that such amendments are not intended to be made for the purpose of delay or vexation, but because the same are considered to be material to the case of the plaintiff; such affidavit to be made by the plaintiff, or one of the plaintiffs where there are more than one, or his, her or their solicitor, or by such solicitor alone, in case the plaintiff or plaintiffs, from being abroad or otherwise, shall be unable to join therein; but no order to amend shall be made before replication, either without notice or upon affidavit, in manner hereinbefore mentioned, unless such order be obtained within six weeks after the answer, if there be only one defendant, or after the last of the answers, if there be two or more defendants, is to be deemed sufficient."

(2) "That publication shall not be enlarged, except upon special application to the Court, supported by affidavit, and at the cost of the party applying, unless otherwise ordered by the Court."

thirteenth and he refused to make the order, upon a motion, of which notice had not been given.

Nov. 4.-Mr. Koe made the motion ex parte before the Lord Chancellor, and urged in support of it the same arguments as he had stated to the Vice Chancellor ; and contended, that the enormous expense, occasioned by the appearance of a vast number of parties on a mere motion for leave to amend, was so great an evil, that the Court would adopt such a construction of the order as would save the suitor from so great a hardship.

In another case, Mr. Wakefield moved ex parte, before the Lord Chancellor, for leave to amend, stating, by affidavit, what the amendments were. They were merely in the description of one of the parties.

Mr. Wakefield contended, that there was nothing in the language of the thirteenth order, which made it imperative on a party to give notice of a motion to amend. The object merely was, to cause the party to satisfy the Court that there was reasonable ground for giving him leave to amend, and that his object in amending was not an improper one. This was effected by the affidavit which was required of him, and by his being compelled to state the amend

ments.

The Lord Chancellor, in this case, adverting to the nature of the amendments, which were merely formal, gave leave to amend, stating, at the same time, that, according to the construction which he had

The plaintiffs claimed to be entitled to the equity of redemption of certain estates; and the bill was filed for the purpose of redeeming them. The defendants were the persons who were in possession of parts of 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 persons who were not named, had interests in the property.

The bill was amended by making the persons, who were named, defendants, and by calling for a discovery of the names and interests of the persons who were not named.

The answers to the amended bill gave this discovery, which made it necessary to amend again by bringing these other parties before the Court.

A motion for leave so to amend was now made ex parte, supported by an affidavit of the solicitor. He stated, that he was advised not to apply for leave to amend until all the answers to the amended bill were filed; that he had used all possible diligence in obtaining all the answers thereto, and that the last answer was filed on the 24th December last; that the draft of the intended amendments had been settled and approved, and signed by counsel, and that such amendments had all been made in consequence of the information

for the first time given by the answers to the amended bill, except an amendment inserting the names of two defendants in the place of one of the former defendants, the necessity of which substitution was discovered on the 9th of October last, when he was first informed of the fact of those defendants, and not the one originally named, having an interest; and that that original defendant had always, previously to that time, refused to give any information respecting his interest in the premises. The affidavit further stated, that the proposed amendments were not intended to be made for the purpose of delay or vexation, but as being material and essential.

There were already upwards of five and twenty defendants.

The Solicitor General, in support of the motion, insisted on the great expense which would be occasioned by giving notice of the application.

The Lord Chancellor, upon this ex parte application, made the order, giving the plaintiffs leave to amend.

Construction of the thirteenth order.

Process being prayed against two defendants, who were within the jurisdiction, and against a third defendant, who was stated to be out of the jurisdiction, whenever he should come within the jurisdiction, the two defendants who were within the jurisdiction answered; the third defendant had not appeared; and the plaintiff obtained, as of course, an order to amend after more than six weeks had elapsed, from the time when the answer of the only defendants who were within the jurisdiction, was to be deemed sufficient :Held, that the order was irregular.

The bill was filed against two defendants who were within the jurisdiction, and process was also prayed against Justo de Machado, when he should come within the jurisdiction, it being stated that he was resident in the Netherlands.

In July 1828, the two defendants who were resident within the jurisdiction, put in

Mr. Pepys, for the motion.

As this order has been obtained after more than six weeks have elapsed from the time when the answer of the only defendants who have answered, was to be deemed sufficient, it would clearly be irregular, if there were no other defendant. But it is suggested that there is a defendant (Machado,) who has not answered. He, however, cannot be considered a defendant for the present purpose. The 13th order contemplates only defendants who have answered, or, at least, whose answers can be compelled to be put in by the process of the Court. The plaintiff has time to amend, till the last of the defendants has answered: can that be held to leave him at liberty to amend indefinitely, by his 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

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was a defendant who had not answered? A defendant, who is not amenable to the process of the Court, is not a defendant within the meaning of the thirteenth or the sixteenth order.

Sir Charles Wetherell and Mr. Wheatly, contrà.

Here there is a defendant, whose answer is not to be deemed sufficient; for he has not answered at all. The plaintiff, therefore, is within the terms of the order; and his power of amending remains as it would have been under the old pracis, whether Machado is a defendant; and tice of the Court. The only question all the authorities hold, that a person out by praying process against him when he of the jurisdiction is made a defendant comes within the jurisdiction. If the defendants had moved to dismiss, the plaintiff would have been obliged to shew that he had used due diligence to get in Machado's answer: and if he had not done all that he might have done, the bill would have been dismissed. But the 13th order contains no words which imply that the plaintiff is not to have leave to amend, unless he gets in the answers within a given time. The remedy against delay is provided in such a case, not by limiting the plaintiff's power to amend, but by giving the defendants, who have answered, the power of dismissing the bill.

plaintiff was not at liberty to amend under The Vice Chancellor thought that the the 13th order; and that, for this purpose, Machado could not be considered as a defendant within the meaning of the 13th order; and that this could not be considered as a case coming within the fair construction of the last clause of that order.