Burt v The British Nation Life Assurance Association
| Jurisdiction | England & Wales |
| Judgment Date | 09 May 1859 |
| Date | 09 May 1859 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 62
BEFORE THE LORDS JUSTICES.
S. C. 28 L. J. Ch. 731; 5 Jur (N. S.), 612; 7 W. R. 517.
62 BURT V. BRITISH LIFE ASSURANCE ASSOCIATION 4 DE 0. & J. 188. [158] burt v. the british nation life assurance association. Before the Lords Justices. May 5, 7, 9, 1859. [S. C. 28 L. J. Ch. 731; 5 Jur. (N. S.), 612; 7 W. R. 517.] Although it may be too strict to hold that a director of a company is bound to look back through the minute-book into entries, made in it before he became a director, yet, where, subsequently to his becoming a director, he is a party to dealings founded on those noticed in such prior entries, and allows his brother directors to act and proceed upon the notion that he affirms and adopts the transactions to which such entries relate, and this course of acting goes on during two years, he is precluded from impeaching such transactions, unless he can establish a case of deception or want of due information. As, on the one hand, a Plaintiff who has a right to complain of an act done to & numerous society of which he is a member, is entitled to sue on behalf of himself and all others similarly interested, though no other may wish to sue; so, on the other hand, although there are a hundred who wish and are entitled to sue, still, if they sue by a Plaintiff who is personally precluded from suing, the suit cannot proceed. This was an appeal of the Plaintiff from the dismissal of his bill by Vice-Chancellor Stuart. The Plaintiff sued on behalf of himself and all other the shareholders or proprietors of shares in the British Nation Life Assurance Association, except the Defendants; and the case made by the bill was as follows :- By the deed of settlement of the association, dated the 28th of February 1855, and expressed to be made between the several persons whose names were or should [159] be thereunto subscribed, and whose seals were or should be thereunto affixed (except the several persons parties thereto of the second and third parts), of the first part, Edward Baylis and George Bermingham, two of the Defendants, Francis Norton Erith, James Furnell, George Charles Richardson, and John Thompson, other Defendants, of the second part, and a trustee for the association of the covenants thereinafter contained of the third part, the parties of the first and second parts covenanted with the trustee, among other things, as follows :- (1.) That subject as therein mentioned the parties of the first and second parts, and all other persons who should become members of the association, should be and continue associated together from the date of the deed until the association should be dissolved in manner thereinafter provided. (3.) That the object and business of the association should be to effect assurances upon lives and survivorships, to grant annuities, and to transact the usual business of a life assurance company. (5.) That the capital of the association should consist of ,300,000 divided into 300,000 shares of 1 each, and of such additions thereto (if any), as should be made under the powers thereinafter contained. (7.) That the sum of Is. per share, part of the sum of 1 per share, should be paid immediately after the complete registration of the association, and the sum of 19s. per share, the residue of the said sum of 1 per share, should be paid by instalments in manner thereinafter mentioned. [160] (10.) That the following persons should be the first and then present officers of the association, namely : -that Edward Baylis, George Bermingham, Francis North Erith, James Furnell, George Charles Richardson and John Thompson should be the directors, Edward Baylis the consulting actuary, and George Bermingham the consulting surgeon. (13 & 14.) That an ordinary general meeting should be held on the second Wednesday in February 1856, the second Wednesday in February in every subsequent year, or on such other days within the limits mentioned in the deed as the directors should appoint. (199.) That it should be lawful for the board from time to time to come to a resolution that all the proprietors or other holders, for the time being, of shares, 4DEQ.ftJ.Ul. BURT V. BRITISH LIFE ASSURANCE ASSOCIATION 63 should be called upon to pay a further instalment on each of such shares, in addition to the instalment or instalments which might, for the time being, have been previously paid in respect thereof until the full amount of such share should be paid up, fixing such a day for the payment of such further instalment as would allow at least two calendar months' previous notice to be given of the call. (204.) That on non-payment of the call in two months the board might declare the shares forfeited on which such call should be unpaid. (270.) That no holder of any share should have power to transfer the same unless the full amount of the instalments for the time being called for on such share should have been paid, Previously to the execution of the deed of settlement [161] an indenture dated the 1st November 1854 was (according to the statement in the bill) alleged by the Defendants to have been made between Edward Baylis, George Bermiugham and Francis Norton Erith of the one part, and James Clarke and John Teulon of the other part, whereby Edward Baylis, George Bermingham and Francis Norton Erith, transferred to James Clarke and John Teulon, as trustees for the company, all their interest in certain leasehold premises, No. 35 Cranbourne Street, and also the copyright of a book on life assurance, prepared by Baylis, Bermingham and Erith, and the right to adopt the principles therein mentioned upon condition that the association should pay to each of them (Baylis, Bermingham and Erith) on the complete registration of the association 1000, and also should, after the expiration of one year from the date of such complete registration, pay to each of them during his life, if the association should so long continue, for his own absolute use and benefit, a per centage or commission, at the rate of '2 per cent, per annum, on all premiums paid to or received by or on behalf of the association in respect of life policies, and that Baylis should be the consulting actuary of the association, and should receive in consideration of the value to the association of his...
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