John Bain, - Appellant; The Proprietors of the Whitehaven and Furness Junction Railway Company and Forbes, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 21 June 1850 |
| Date | 21 June 1850 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 1
House of Lords
Mews' Dig. i. 354; iii. 1420, 1421, 1422; iv. 232; vi. 634, 732. On point as to lex fori governing admissibility of evidence, cf. Abbott v. Abbott, 1860, 29 L.J. P. M. and A. 57; Finlay v. Finlay, 1862, 31 L.J. P. M. and A. 149. As to register of company governed by Companies' Clauses Consolidation Act, see Wolverhampton New Waterworks Co. v. Hawkesford, 1859-1861, 6 C.B. N.S. 336; 7 ib. 795; 11 ib. 456; Portal v. Emmens, 1876, 1 C.P.D. 201, 664.
Bill of Exceptions - Evidence - Foreign Law - Railway Companies' books - Shareholders.
KEPOETS OF CASES heard in the House of Lords, and decided during the Sessions 1850-52. By charles clark, Barrister-at-Law. Vol. III. [1] JOHN BAIN,-Appellant; THE PROPRIETORS OF THE WHITEHAVEN AND FURNESS JUNCTION RAILWAY COMPANY and FORBES,-Respondents [June 11, 14, 18, 21, 1850.] [Mews' Dig. i. 354; iii. 1420, 1421, 1422; iv. 232; vi. 634, 732. On point as to lex fori governing admissibility of evidence, of. Abbott v. Abbott, 1860, 29 L.J. P. M. and A. 57; Finlay v. Finlay, 1862, 31 L.J. P. M. and A. 149. As to register of company governed by Companies' Clauses Consolidation Act, see Wolverhamp-ton New Waterworks Go. v. Hawkesford, 1859-1861, 6 C.B. N.S. 336; 7 ib. 795; 11 ib. 456; Portal v. Emmens, 1876, 1 C.P.D. 201, 664.] Sill of Exceptions-Evidence-Foreign Law-Railway Companies' books- Shareholders. Evidence of foreign law was tendered on the trial of an issue before a jury. It was objected to, on the ground that as the issue did not, in terms, raise any question of foreign law, the evidence was a surprise on the party against whom it was produced. The evidence was admitted, and the objection of surprise was put on the record as one of the heads of a bill of exceptions. The evidence was really inadmissible, on the ground that the lex fori was that by which alone the issue could be decided; but no notice of this ground of objection was taken in the bill of exceptions : Held, that the Court of Error could not look beyond the bill of exceptions, but must decide on that alone, and that the objection of surprise was not sufficient to exclude the evidence. The law of the country where a contract is to be enforced, not that of the country in which it is made, governs the question of admissibility of evidence on a trial arising out of such contract. The Companies Clauses Consolidation Act for Scotland (8 and 9 Viet., c. 17, s. 9), requires, in the same terms as the English statute of that name, a book to be kept, containing, in alphabetical order ' the names of the shareholders,' with the number of the shares to which such shareholders shall be respectively entitled, distinguishing each, share by its [2] number, and the amount of the subscriptions paid on such shares." The 29th section of the statute makes such book prima, facie evidence of a person being a shareholder, and of thu number and amount of his shares. Held, first, that as this was an exceptional privilege in favor of the Company, the provisions of the statute with respect to the mode of keeping the book must be strictly complied with; and, secondly, that an entry in the book, describing A. as possessed of a certain number of shares, numbered from one given number to another given number, and stating a gross amount as paid upon these shares, was a sufficient compliance with those provisions, so as to render the book admissible in evidence. The statute requires that a book, to be called "the Register of Shareholders " shall be kept. The book actually kept was marked " Register of Proprietors." H.L. x. 1 1 Ill H.L.C., 3 BAIN V. WHITEHAVEN AND FURNESS RY. CO. [1850] Held, that this variation in the title did not prevent it from being given in evidence. An exception, abandoned in the Court below, was allowed to be argued here. This was an appeal against a judgment of the Court of Session, in a cause in which two actions, brought by the respondent against the appellant, had been conjoined by order of the Court. The sums sought to be recovered in these actions were the following: -A sum of 1130, being the third call of 2 per share on five hundred and sixty-five shares, with interest from the 24th May, 1847; a sum of 565, being the first instalment of the fourth call of 1 per share, with interest from the 22d of November, 1847; a like sum, being the second instalment of the fourth call, with interest from the 15th of January, 1848; a like surn^ being the third instalment of the fourth call, with interest from the 15th of March, 1848; a sum of 1130, being the fifth call with interest from the 10th of July, 1848; and a sum of 565, being the [3] sixth call of 1; per share,, with interest from the 12th December, 1848. Bain pleaded that he was not a shareholder of the Company, that the calls were not legally or validly made by the directors, or by any parties having sufficient authority to make the same; that no proper notice was given to him of the calls, and that the requisites of the general and special acts as to calls not having been observed, the pursuers were not entitled to recover. The Lords of the Second Division of the Court of Session adjusted in the following form the issue to be tried:-" Whether the said John Bain was, at the dates of making the calls after mentioned, respectively, the holder of five hundred and sixty-five shares of the Whitehaven and Furness Junction Railway Company, and is indebted to the pursuers in the following sums, or any part thereof?" The calls were then set out in detail. The cause came on for trial on the 9th January, 1850, before the Lord Justice Clerk, and a jury, when in order to prove that Bain was a member of the Company, and that the calls had been regularly made on him, a witness named John Meyer was put into the box. The counsel for Bain, befo-re allowing Meyer to give evidence in the cause, examined him in initialibus, or, as it is called here, on the voire dire, when he deposed that he was not a shareholder; that he had sold his shares in the previous December, although the transfer had not then been entered in the transfer book; that it had been entered in the supplementary register of shareholders; that that supplementary register was a book of entries made between the period of one meeting of the Company and another, and, before the next half yearly meeting, would be fairly copied out into the register book, and would be then duly sealed, and that [4] until that was done, his name would remain on the last sealed register, as was the case in all instances with transfers made in the intervals between one meeting and another. All his calls had been paid up. Upon this examination it was objected that John Meyer was not admissible as a witness, for that the transfer of his shares not being legally complete, he was still a partner in the Company, and consequently was not admissible as a witness against a person charged as likewise being a partner therein. The Lord Justice Clerk, however, admitted the witness, and against his decision on that matter the first exception was presented. On the argument of these exceptions in the Inner House, this one was abandoned, but it was re-stated on the appeal here. A book, marked on the back and in the body of the book, " The Register of Proprietors," was then tendered in evidence. It was produced as the Sealed Register of the shareholders of the Company. It was objected to on the ground that it was entitled " Register of Proprietors," and not " Register of Shareholders," the latter being the title given in the Scotch Companies Clauses Consolidation Act (8 and 9 Viet., c. 17, s. 9), to the book in which the shareholders were registered. The Lord Justice Clerk allowed the book to be received in evidence. This formed the ground of the second exception. Several call letters addressed to Bain were then tendered in evidence, and were objected to on the ground that they were printed letters, and that the signature to each letter was also printed. To move this objection the pursuers proposed to prove by the evidence of an English' counsel that under the English Companies Clauses Consolidation Act (8 and 9 V., c. 16), which was [5] in almost exactly the same terms as the Scotch act, the English Courts had allowed such letters to be given in evidence, either without any signature at all or with a printed signature. The counsel for BAIN V. WHITEHAVEN AND FURNESS RY. CO. [1850] III H.L.C., 6 Bain objected to this evidence of the English counsel, on the ground of surprise, because the English law was not averred or mentioned on the record. The Lord Justice Clerk overruled the objection of surprise, and admitted the evidence, and this formed the ground of the third exception. The English counsel was accordingly examined; he proved that in England a notice of call need not be signed in writing. One of the resolutions of the directors made in...
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