Swan v The North British Australasian Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 15 May 1863 |
| Date | 15 May 1863 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 611
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 31 L. J. Ex. 425; 10 W. R. 841: affirmed 1863, 2 H & C. 175
[603] swan v. the north british australasian company (limited) Jan. 27, 28, 1862. - The plaintiff, the registered owner of 1000 shares in a Joint Stock Company in which the shares could only be transferred by deed, executed by both tFansferror and transferree, employed a broker to sell for him some shares in another Company, which were also transferable by deed only. The broker represented to the plaintiff that it was necessary for him to execute ten blank forms of transfer. The plaintiff accordingly signed, sealed and delivered to the broker ten forms of transfer in blank to be filled up by him for the transfer of the shares in the other Company. The broker only used eight of the blank forms for that purpose, and, having stolen the certificates from a box deposited at a bank for safe custody, he feloniously filled up the two remaining forms as transfers respectively of 500 of the plaintiffs 1000 shares in the first mentioned Company, and having forged the attestations he delivered the transfers, together with the certificates, to bonli fide purchasers for value, and on their being presented to the Company they removed the plaintiff's name from the register of shareholders and placed thereon the names of the purchasers. Held, that the (b) Pollock, C B., Martin, B, and Wilde, B. 612 SWAN V. NORTH BRITISH AUSTRALASIAN COMPANY 7H&N 604. transfers were void, and that the plaintiff was not estopped by his negligence from insisting that the property in the shares did not pass under them : Per Martin, B,, and Channell, B Pollock, C. B, and Wilde, B., rlissentientibus.- Negligence, to operate as an estoppel, must be the proximate cause of the loss : Per totarn Curiam.-The doctrine of estoppel by executing instruments in blank is confined to negotiable instiuments, and does not apply to deeds Per Martin, B, and Channell, B Pollock, C. B., and Wilde, B, dissentientibus [S. C. 31 L. J. Ex. 425; 10 W. R. 841: affirmed 1863, 2 H & C. 175 ] The first count of the declaration stated that the defendants, before and at the time of committing of the grievance, &c., were and still are a Joint Stock Company within and duly incorporated under the Joint Stock Companies Acts, 1856, 1857, and by the rules and regulations of the said Company, made in pursuance of the said Acts, the person or persons registered as the holder of any share in the said Company can only transfer the same by deed duly executed by both transferror and transferree and attested. That, before and at the time of the committing of the said grievances, the plaintiff puichased and became and was the transfeiree and holder and proprietor of 1000 shares in the said Company, respectively numbeied, &c, and the name of the plaintiff was duly entered on the register of shareholdeis of the said Company as a shareholder thereof in respect of the said 1000 shares, according to the provisions of the said statutes in that behalf Yet the defendants before this suit, and whilst the plaintiff was such shareholder arid proprietor as aforesaid, wrongfully and without the authority or knowledge and against the will of the plaintiff, and contrary to the said Acts, rules, and regulations, removed his name from the said register of shareholders in respect of the said 1000 shares and entered on the said register the names [604} of divers other persons as proprietors thereof; and thereby the plaintiff has been deprived of the said shares and of the means of selling and transfemng the same, and of divers large sums payable thereon as dividends for and in the years 1858, 1859, 1860 and 1861, and which dividends the defendants have hitherto refused to pay to the plaintiff. Second count. That the defendants being an incorporated Joint Stock Company, and the shares in the said Company being transferable by deed only, as in the first count hereinbefore mentioned; arid the plaintiff being the transferree and proprietor of the said 1000 shares numbered as aforesaid; and the name of the plaintiff being entered on the register of shareholders as in the said count mentioned, the defendants before this suit, and whilst the plaintiff was such holder and proprietor as aforesaid, wrongfully and without the authority or knowledge and against the will of the plaintiff, and contrary to the Acts, rules and regulations in the first count mentioned, removed the name of the plaintiff from the said register in respect of the said shares. Whereupon the plaintiff" requested the said Company to replace the name of the plaintiff on the said register as the holder and proprietor of the said shares, which it was and is the duty of the defendants to do. And the plaintiff says, that he was and is personally interested in having his name replaced on the said register as aforesaid, and that he sustains damage by the nonperformance by the defendants of their said duty to replace the plaintiff's name on the said register as aforesaid. Yet the defendants have refused and still refuse so to do. And the plaintiff' claims a writ of mandamus commanding the defendants to replace on the register of shareholders of the said Company the name of the plaintiff as a shareholder therein from the time his name was so removed as aforesaid from the said register in respect of the said 1000 shares Pleaa First, to first count: that the plaintiff was not, at the time of the committing of the said grievances in that count [605] mentioned, the transferree, or holder, or proprietor of the said shares in that count mentioned, or any or either of them or any part thereof, as in that count alleged Secondly, to the second count that the plaintiff was not, at the time of the committing of the grievances in that count mentioned, the transferree or proprietor of the said shares, or any or either of them or any part thereof, as in that count alleged Thirdly, to the whole declaration that the defendants are not guilty as alleged. Issues thereon. The cause came on to be tried before Martin, B, at the London Sittings after Tnmty Term, 1861, when by consent a verdict was found for the plaintiff, subject to the opinion of the Court on the following case.- The North British Australasian Company, who are the defendants in this case, are IHfcN. 606. SWAN V. NORTH BRITISH AUSTRALASIAN COMPANY 6i3 a Joint Stock Company incorporated, with limited liability, under the Joint Stock Companies Acts, 1856 and 1857 By the rules and regulations of the said Company, made in put nuance of those Acts, the person or persons regrstered as the holder of any shaie in the said Company can only transfer the same by deed duly executed by buth transferror and trausfeiree , and the custom of the defendants has been, and at the time of the transactions hereafter mentioned was, not to register any such transfer unless the execution of such deed appeared on the face thereof to have been attested. In the year 1S54 the plaintiff purchased 700 shares in the said Company, and in the year 1857 the plaintiff purchased 300 shares in the said Company, and the plaintiff thereupon became and was the transferree, holder and proprietor of 1000 shares in the said Company, respectively numbered 156,735 to 157,434, both inclusive,, 115,'204 to 115,403, both inclusive, and 177,206 to 177,305, both inclusive, and the name and address of the plaintiff was duly entered on the register of shareholders of the said Company [606] as a shareholder thereof in respect of the said 1000 shares, according to the provisions of the said Joint Stock Companies Acts. In the purchase of these shares, and also of other shares in other Companies, the plaintiff had employed a person named William Lemon Oliver who vv.is a stock and share broker, but who was not a member of the Stock Exchange. The plarntrff kept the certificates of his shares and other securities in a box, which, in November 1856, he had caused to be deposited by the said \V L Oliver with the London arid County Bank for safe custody, and the said W L Oluer received from the bank the following receipt on account thereof - " London and County Bank, 21 Lombard St, " L5th Nov. 1856. " Mr W. L. Oliver has this day deposited a box on account of Mr. R Swan of Alnwick. " jas. gray, Acct" There was at that time a padlock on the box, and befoie the plaintiff' parted with the box he locked the padlock with a key which he kept in his own possession. In the mouth of November, 1857, the said W. L. Oliver lepiesentecl to the plaintiff that the lock of the box was so inferior that it was unsafe to have such valuable property under such a lock, and he would obtain a " Chubb's ' lock for greater security. In consequence of such representation the plaintiff gave the said W. L Oliver a written order for the delivery of the said box to him, and he thereupon obtained the said box from the London and County Bank and brought it to his, the said W. L. Oliver's, office, at 4 Austin Fnars, Old Broad Street, in the city of Londorr. In the meantime the said W. L Oliver had obtained a new lock having two duplicate keys, and gave the said new lock and one of the said keys to the plaintiff' (who was riot aware that he had obtained [607] two keys), but retained, and always until his arrest as hereinafter mentioned continued to retain, the other of such duplicate keys in has own possession. The plaintiff' himself, at the said office of the said W. L Oliver, took off the old padlock and fastened on the box the said new padlock which the said W. L Oliver had so obtained. On this occasion the plaintiff examined all the securities in the said box and found that the certificates of the said 1000 shares in the said North British Australasian Company, and all his other property which he had deposited therein, were then safe in the said box. The plaintiff' then locked the said box...
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