Watson v Spratley

JurisdictionEngland & Wales
Judgment Date07 July 1854
Date07 July 1854
CourtExchequer

English Reports Citation: 156 E.R. 424

IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER

Watson
and
Spratley

S C 2 C L R. 1434; 24 L. J. Ex. 53; 2 W R 627 Followed, Powell v Jessapp, 1856, 18 C B. 306 Referred to, Webber v. Lee, 1882, Q. B. D. 317, Watson v Black, 1885, 16 Q. B. D. 278.

[222] WATSON v. spratley. July 7, 1854. - By indenture, E granted to Y, his executors, administrators, co-adventurers, and assigns, full license, power, and authority to dig, work, mine, and se/irch for ore, minerals, and metals in and throughout cei tain limits, and the same to carry away and dispose of to their own use, for twenty-one years. The adventure was a joint-stock company, conducted on the cost-book principle P. was purser of the mine, which was purchased with money raised by calls on the shareholders The mode of transferring shares was by a certificate of the sale, addressed by the vendor to the purser and countersigned with an acceptance of the shares by the vendee ; on the receipt of which certificate, the purser substituted the name of the latter in the coat-book for that of the vendor. Sometimes the shareholders, signed off their names in the cost-book ; in which case they ceased to be shareholders, and there was paid to them the value of their shares, estinuted with reference to the machinery and ore, but riot the mine . - Held, (per Martin, B., and Platt, B.), that shares in this company were not an interest in land within the 4th section of the Statute of Frauds , (per Parke, B , and Alderson, B ), that it was a question of fact for the jury, whether, under the above circumstances, the purser held the mine and machinery in trust to employ the machinery in working the mine and making a profit of it for the benefit of the co-ad venturers, who were to share the profits only, in which case the shares might be bargained tor and transferred by parol ; or whether the purser held the mine in trust for himself and his co-adventurers, present and future, in proportion to their number of shares , and if so, there was a direct trust in the realty, and consequently neither a bargain for, nor a transfer of, a share in such trust could be made without a note in writing - A share in a joint-stock mining company is not goods, wares, or meichandise within the 17th section of the Statute of Frauds -[S C 2 C L R. 1434; 24 L. J. Ex. 53; 2 W H 627 Followed, Powell v 185n, 18 C B. 3^6 Eeferred to, Webber v. Lee, 1882, 9 Q. B. D. 317 , ff'atton v Black, 1885, 16 Q. B D. 278.1 The declaration stated, that, in consideration that the plaintiff would buy of the defendant five shares in a certain ad\enture or company for working a ceitdin mine, 10EX 223. WATSON V. SPRATLEY 425 called the Boscean mine, at a certain puce, to wit, the price of '251 for each of the ban! shares, the defendant agreed and promised with and to the plaintiff to sell the said shares to the plaintiff at and for the pi ice aforesaid, and to deliver the said shares to the plaintiff within a reasonable time in that behalf, and, although the plaintiff has always been ready and willing to accept the said shaies from the defendant, and to pay for the same at the pi ice aforesaid, and a reasonable time for the delivery of the bdid shares had elapsed before the commencement of this suit, yet the defendant has not delivered the said shares, or any or either of them, to the plaintiff, but hath wholly refused so to do Plea non assumpsit Upon which issue was joined. At the trial, befoie Martin, B, at the London Sittings after la^t Michaelmas Teim, the case on the part of the plaintiff was, that the defendant had agreed to sell him tue shares in a company for working a mine called the Boscean mine, at 251 a share The plaintiff made a memorandum of the sale in his pocket book, but there was no note in [223] writing signed by the defendant. The defendant having failed to deliver the shares, the plaintiff was obliged to purchase others at an increased pi ice The Buscean mine was in Cornwall, and was conducted on "The Cost Book Principle " The defendant denied that any such contract was made He also called as a witness Samuel York, the purser of the mine, who produced two indentures, both dated the 2nd of November, 1850. One of these indentures was between C Ellis of the one part, and 8. Yoik of the other part, and after reciting that C Ellrs was seised of one part in twelve parts of and in all mines, metals, and minerals within or under the tenement and piemises called Higher Boscean, it witnessed that, in consideration of the payments, &c., thereinafter mentioned, C. Ellis "doth hereby grant and sell unto the said S. York, his executors, administrators, co-adventurers, and assigns, full license, power, and authority to dig, work, mine, and search for tin and tin ore, copper and copper ore, lead and lead ore, and all other ores, minerals, and metals whatsoever in and throughout all that tenement, farm, and premises, situate &c, called Higher Boscean (describing it), and all tin and tin oie, copper and copper ore, lead and lead ore, and all other ores, minerals, and metals which shall be fourrd within the said limits, to raise and bring to grass, spall, thump, dress, cleanse, make merchantable and fit for sale ; and subject to the reservations, covenants, conditions, and agreements hereinafter contained and to the right of persons lawfully claiming royal mines, to carry away and dispose of the same to his and their own use," &c , Habendum, "unto the said S. York, his executors, administrators, co-adventurers and assigns, from the date hereof, for the full term of twenty-one years," subject to certain rents The other indenture, which was between several persons of the first part, and S. York of the second part, after reciting that the parties of the first part were seised of the remaining eleven-twelfth parts of and in the underground profits and produce of the tenement, farm, and pre-[224J-mises called Higher Boscean, witnessed, that the several parties thereto of the fiist part, for the considerations therein mentioned, did grant and sell unto the said S York, his executors, administrators, co-adventurers, and assigns, full license, powei, and authority to dig, work, mine, and search for tin and tin ore, copper and copper ore, lead and lead ore, and all other ores, minerals, and metals whatsoever m and throughout all the eleven-twelfth parts of and in all the tenement, farm, and premises called Higher Boscean, on the same terms and subject to the same covenants as in the other deed The Cost Book of the Boscean Mine was given in evidence, and the following extracts read .- "At a Meeting of Adventurers in the new concern of ' Wheal Boscean' held at the account house on Tuesday the 4th of June, 1850, pursuant to notice "It was resolved- " That the bargain made by Mr. York foi the purchase of the mine and materials, at the sum of thirteen hundred and sixty pounds, less the value of such as have been sold, be approved and confirmed. "That Captain John Caithew be appointed to look into what may be wanting, and give in a valuation of the same aecoidrngly That he be also appointed to give such directions, employ buch persons, and order such materials as he may think necessary for getting the large engrne and the flat lods in working order, also the proposed new engine shaft and the Cloldiogs' shaft. Ex. Div. xii.-U* 426 WATSON r SPRA/FLEY 10 EX 22C "That another meeting of adventurers be held at the account house on an early clay, of which due notice is to be given. "That Mr. Samuel York, of Penzance, be appointed the purser, and that he procure immediately a cost book into which the present minutes shall be copied, and that he also order new setts from the Lords. [225] " Resolved also, "That a call be made immediately of ten pounds per 120th share " [Then followed a list of shareholders present ] first call made of 10 per hhare Paid Cr in Ac Paid 401 Paid . Paid . . [Then fol pioportions Mr Samuel York Thomas Coulbon ,, Richard Langon ,, James Ackei man William Party 13/120 ' 12/ ' a/ a/ e/ 130 120 HO 80 00 0 0 0 0 0 0 () 0 0 0 Lowed the names of other persons holding shares, in vanous making in all thirty-three adventurers ] " 16th April 1851-At a meeting of adventurers held as above, pursuant tu notice, the foregoing accounts for four months to the end of January, shewing a balance against the adventurers of five hundred pounds, were seen, examined, and approved. " And it was resolved, "That a call should be made on the adventurers of six hundred pounds or five pounds per each 120th share. "And that in future the mine be divided into 240ths instead of 120ths as heretofore. The purser having secured the adjoining sett of Lord Falmouth, that the same be approved, and that the agents be instructed to immediately commence operations for the effectual woiking of the same. "(Signed by the Shaieholdeis present.)" The form of transfer of shares, which was also given in evidence, was as follows :- " To Mr. Samuel York, purser of Boscean mine, m the parish of Saint Just, in the county of Cornwall. " I, Peregrine Joyce, of &c, do hereby certify, that I have this day sold unto John Beall, of &c, four two hundred and [226J fortieth parts or shaies of and in a certain mine or adventure called Boscean, situate &c., together with the like shares or proportions of and in all the engines and tools, tackle, materials, ores, halvans, monies, and all other appurtenances thereunto belonging, together with all dividends and advantages to be derived therefrom. And this is your authority foi transferring the said parts or shares into his name in the usual way As witness my hand this 1st day of August, 1852. "peregrine joyce. " Thomas Porter, Witness." "I, the above-named John Beall, do hereby accept the said parts or shares, subject to the same terms and conditions, rules, and regulations, as the said Peregrine Joyce held the same "JOHN beale. " William Hughes, Witness." Under the authority of such a...

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