MacIntyre v Connell
| Jurisdiction | England & Wales |
| Judgment Date | 05 March 1854 |
| Date | 05 March 1854 |
| Court | High Court of Chancery |
English Reports Citation: 61 E.R. 87
HIGH COURT OF CHANCERY
S. C. 20 L. J. Ch. 284; 15 Jur. 529; 1 Sim. (N. S.) 252.
Public Company not Incorporated. Stat. 1 & 2 Vict. c. 110, sect. 14.
[225] macintyre v. connell. Jan. 15, 22, March 1, 1851. [S. C. 20 L. J. Ch. 284; 15 Jur. 529; 1 Sim. (N.S.) 252.] Public Company not Incorporated. Stat. 1 & 2 Viet. c. 110, sect. 14. A banking co-partnership which made returns to the Stamp Office pursuant to 7 Geo. IV. c. 46, held to be a public company not incorporated within the meaning of 1.& 2 Viet, c, 110, sect. 14. The bill was filed by the secretary to the United Kingdom Life Assurance Company (for and on behalf of the company) a"nd by the trustees of that company against John Connell, George Webster and Mark Boyd, and certain other persons who were the directors and public officers of the Union Bank of London. It stated an Act of Parliament passed in the 4 Will- IV., by which the assurance company were enabled to sue and be sued in the name of one of their directors or their secretary; and that, on the 29th of November 1845, Connell, Mark Boyd, J. W. Sutherland (who was a director), Webster and William Sprott Boyd procured 10,000 from the company; and gave their joint and several promissory note for it, payable twelve months after date to the trustees of the company : that the 10,000 was not paid when it became due: that the company recovered judgments in three separate actions on the note against Connell, Webster and Mark Boyd, after the signing of which, and on the 10th of April 1850, a payment of 3000 was made on account of the note. The bill then stated that there was a certain public company called the Union Bank of London, established in 1839, for the purpose of carrying on the business of bankers or of banking according to the provisions of a deed of settlement, dated the 5th of April 1839, which provided that the capital of the company should be 3,000,000, divided into 60,000 shares of 50 each: that the capital of the company should be used and employed in the business of the company, and each of' the proprietors should be entitled to the profits and liable to the losses of the company in proportion to [226] his share : that 88 MACINTYRB V. CONN ELL 1 SIM. (N.&) m no benefit of survivorship should take place between the proprietors; and all the real property of the company should, as between the proprietors and their respective real and personal representatives, be considered as personal property and be transmissible as such: that the directors should have the management of the business and concerns of the company, and should appoint such of their body as they should think fit to be trustees of the property of the company; and that the trustees should be under the order and control of the directors: that the business of the company should be carried on in the names of such of the trustees as the directors should appoint; and all contracts, securities, estates and effects entered into, and taken or given on behalf of the company, should be entered into, and taken or given by the trustees^ unless the directors should otherwise direct;, and all suits respecting the property of the company should be carried on in the names of the trustees; and that they should be removable at the pleasure of the directors : that the directors, if they should think it desirable, might apply for and obtain a charter of incorporation or letters patent from the Crown for granting to the company all or any of the powers or immunities which the Crown was or might be able to confer on trading or other companies; and might obtain an Act of Parliament for better carrying on the business of the company, either as a corporation or otherwise; and that, for the purpose of obtaining such charter, letters patent or Act, the directors might subject the proprietors to such individual liability, as to their persons and properties, as might be imposed by way of condition for obtaining the same charter, letters patent or Act, and might comply with any conditions or restrictions that the Crown or Parliament might think proper to impose, notwith-[227J-standing the same might be inconsistent or at variance with the provisions of the now-stating deed; and that the directors might, by or out of the funds of the company, defray the expenses incident to the application for such charter, letters patent or Act, and to the procuring of the same in case the same should be procured, and with the view or for the purpose of bringing the company within the provisions of the Act of Parliament then lately passed for the better enabling Her Majesty to confer certain powers and immunities on trading and other companies : that the directors might purchase for the use of the company any shares in it which might be offered for sale, and that the shares which should be so purchased should be considered as part of the property and effects of the company : that if any proprietor should do any act whereby he should become entitled to the benefit of any Act of Parliament for the relief of debtors, and by reason or in respect whereof an assignment of his estate and effects should be made for the benefit of his creditors, or if any order, judgment or decree should be made whereby the shares of any proprietor should be attached or affected, and of which the secretary or manager or any of the trustees should have notice, the proprietor by whom such act should be done, or whose shares should be attached or affected by such order, judgment or decree, should, upon the commencement and prior to the completion of the doing of such act or of the making of such order, &c., forfeit his shares to the company, and all profits then due or accruing due thereon, and all other rights and privileges in respect thereof, as from the commencement of the doing such act or of the making of such order, &c.; and such proprietor should cease to be a proprietor as from the commencement of the doing such act or of the making of such order, &c., and the [228J directors should cause such shares, profits, rights and privileges to be sold, and should pay the net produce thereof, after retaining the amount of any lien, to the assignees of the proprietor's estate, or to the person in whose favour such order, &c., should be made : that it should be lawful for any proprietor, or his legal personal representatives^ to sell and transfer all or any of the shares held by him, provided the approbation of the directors to such transfer should be first obtained, and provided the same should be testified by the execution of the deed of transfer by the secretary or some other officer of the company. The bill next stated that, previously to and at the time of making the orders thereinafter mentioned, Connell, Webster and Mark Boyd held four hundred, twenty and thirty shares in the company respectively : that, on the 13th of April 1850, Mr. Justice Talfourd, one of the Judges of the Court of Common Pleas at Westminster, made three orders nisi (which were subsequently made absolute) under the fourteenth section of the 1 & 2 Viet. c. 110, charging the shares of Connell, Webster and Mark 1 SIM. (N.S.) 829. MACIOTYRE V. GONNELL 89 Boyd with the sums for which the judgments had been recovered against them respectively. That Connell, Webster and Mark Boyd insisted that the Union Bank of London was not a, public company existing in England within the meaning of the 1 & 2 Viet. c. 110, so as to entitle the Plaintiffs to all such remedies as they would have been entitled to under that Act, in respect of shares in a public company; whereas the Plaintiffs charged that the Union Bank of London was a partnership whereof the capital was divided or agreed to be divided into shares, and so as to be trans-[229]-ferable without the express consent of the co-partners; and that any number of strangers might, with the consent of the board of directors, be introduced into the said company, not only without the consent of the individual partners, but notwithstanding their express dissent: that the Union Bank of London immediately on the passing of the 7 & 8 Viet. c. 113 (to regulate joint stock banks in England), availed itself of the provision of that Act, whereby it was provided that every company of more than six persons established, on the 6th day of May 1844, for the purpose of carrying on the business of bankers within sixty-five miles from London, should have the same powers and privileges of suing and being sued in the name of one of their public officers, and that all judgments, decrees and orders made and obtained in any such suit might be enforced in like manner as was provided with respect to such companies carrying on business beyond sixty-five miles from London, under the 7 Geo. IV. c. 46 ; provided the company should' make out and deliver, to the Commissioners of Stamps and Taxes, the several accounts or...
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...applied in England and corresponded to s. 23 of the Act of 1840 (1& 2 Vict. c. 110, section 14), was considered in MacIntyre v. Connell 1 Sim. N.S. 225, in which judgment was delivered by Cranworth V-C on 1st March, 1851. At issue there was whether the Union Bank of London came within the e......
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