to the visit of the husband to Paris, in February, 1845, for the purpose of procuring evidence, and that for two months previously to the 24th of February, 1845, the husband had resided continuously in England, as the deponent knew by reason of frequent correspondence with him. Upon this evidence— The VICE-CHANCELLOR made the order as prayed. Solicitor for the Petitioners: Mr. Samuel Spofforth. Solicitors for the Respondents: Messrs. Senior, Attree, & Johnson, agents for Messrs. Hill & Fitz Hugh, Brighton; Mr. T. H. Dixon ; Messrs. King & McMillin. V.-C. J. 1870 In re RIDEOUT'S TRUSTS. In re BRACKENBURY'S TRUSTS. Legacy-Tenant for Life and Remainderman—Sole Trustee-Appointment of additional Trustee-Costs of Petition. Where a legacy had been bequeathed to a sole trustee upon trust for a tenant for life, and then for reversioners absolutely, the costs of a Petition by the reversioners for the appointment of an additional trustee were ordered to be paid by the Petitioners, and not out of the corpus of the legacy. ELIZABETH FISHER BRACKENBURY, widow, by her will, Messrs. Downes and Young presented this Petition, stating that the testatrix left a sum of upwards of £1000 in the bank; that they had requested W. Brackenbury to concur with them in the appointment of a proper person or persons to be a trustee or trustees of the legacy in addition to C. M. Nesbitt; but that he refused V.-C. J. 1870 April 23. V.-C. J. 1870 In re BRACKENBURY'S TRUSTS. to concur in such appointment, and had required the Petitioners to transfer to Nesbitt as trustee. The Petitioners prayed that two persons, whom they named in the Petition, should be appointed trustees of the legacy in addition to C. M. Nesbitt, and that the costs of all parties might be taxed, and paid out of the legacy. Mr. C. T. Simpson, for the Petitioners: It is the right of these Petitioners to have a second trustee appointed, and to have the costs out of the corpus of the legacy: Grant v. Grant (1). The object in not having the money paid into Court is to preserve the extended power of investment given by the will. Mr. North, for the Respondents, Nesbitt and Brackenbury :— This case is distinguishable from Grant v. Grant. There the fund was very large (£30,000), and the trustee was also a beneficiary, subject to the life estate. The Court will not, except under very special circumstances, interfere with the legal right of the trustee. At least, it will not order costs of a Petition of this sort out of the fund. SIR W. M. JAMES, V.C.: I think it is very probable that it may be a reasonable thing to have a second trustee, or two other trustees, though I confess I do not precisely see where the right is. But if the Petitioners want another trustee or other trustees, they must pay the costs of the Petition. The order will be that the tenant for life name an additional trustee, to be approved by the Judge in Chambers in case the parties differ; then that such person so approved be appointed a trustee in addition to Nesbitt; the Petition to be mentioned in a fortnight, if a proper trustee is not named by the tenant for life in the meantime; the Petitioners to pay the costs of the Petition. Solicitors Mr. James Johnston; Messrs. Norris, Allens, & Carter. (1) 34 L. J. (Ch.) 641. CASTELLAN v. HOBSON. Company-Sale of Shares-Indemnity-Concealed Principal. A., through his broker, sold shares to a jobber, from whom B. had agreed to purchase the same number of shares, giving the name of C., one of his workmen, as the person to whom the shares were to be transferred. A. executed the transfer to C., and afterwards received the purchasemoney; but from the winding-up of the company the transfer was not regis tered, and the shares still remained in the name of A: Held, that B., as the real purchaser and equitable owner, was bound to indemnify A. against all calls in respect of the shares. ON the 10th of May, 1866, the Plaintiff instructed Curwen, his broker, to sell twenty shares in the Imperial Mercantile Credit Association, Limited. Curwen sold the shares, which were then at 9 discount, to Hammon Paine & Co., stockjobbers, for delivery on the 15th of May. The Defendant Hobson, about the same time, instructed Messrs. Inchbald, his brokers, to purchase shares in the same company. Messrs. Inchbald purchased the same number of shares from Hammon Paine & Co., the price having in the meantime risen to 7 discount. On the settling-day, Messrs. Inchbald, by direction of Hobson, gave the name of the Defendant, W. M. Banks, one of his workmen, as the person to whom the shares were to be transferred. The Plaintiff, on the 17th of May, 1866, executed a transfer of the shares to Banks as transferee, and received the purchase-money on the 25th of May, but the transfer had not been executed by Banks; and from the company having stopped payment on the 11th of May, and the presentation of a winding-up Petition on the 12th of May, the books of the company were closed, and the shares still remained registered in the name of the Plaintiff. A special resolution for a voluntary winding-up was passed on the 28th of May, and confirmed on the 14th of June, 1866, and on the 25th of June Vice-Chancellor Wood made an order for continuing the winding-up under supervision. The Plaintiff, as the person in whose name the shares were still registered, had been placed on the list of contributories, and compelled to pay calls which were made under the winding-up; and V.-C. J. 1870 May 3, 6. V.-C. J. 1870 v. HOBSON. the present bill was filed, praying a declaration that the Plaintiff became, as from the 15th of May, 1866, and still was, a trustee of CASTELLAN the twenty shares for the Defendant Hobson, and that Hobson was bound to indemnify the Plaintiff against all calls made or to be made on the shares, and against all liability and loss which the Plaintiff had or might incur in respect of the shares, and by reason of his being settled upon the list of contributories in respect of such shares. The bill also prayed payment by Hobson of the sum already paid by the Plaintiff in respect of calls since the 15th of May, 1866, and an indemnity against all existing or future calls. It appeared that soon after the execution of the transfer by the Plaintiff to Banks, Hobson, through his broker, Inchbald, offered to pay the calls in respect of the shares and take a transfer of them into his own name, if the Plaintiff were willing to transfer the same. The offer was not accepted, as the Plaintiff considered that after executing a transfer to Banks he could not substitute Hobson's name for that of Banks. Mr. Kay, Q.C., and Mr. A. T. Watson, for the Plaintiff : It is admitted that Hobson was the real purchaser of the shares, and the name of Banks, who was a mere agent, having been given at the instance of Hobson, as the transferee, the Plaintiff is entitled while the matter is still in contract to relief against the concealed principal: Shaw v. Fisher (1); Nickalls v. Furneaux, before ViceChancellor James, May 6, 1869. Mr. Marten, for the Defendant Hobson : The Plaintiff is not entitled to relief, as there was no privity or contract between himself and Hobson. His original contract was with Hammon Paine & Co., the jobbers, who remained liable to him until the settling-day, when the name of Banks being given in by them as transferee of the shares, followed by acceptance of the purchase-money and an execution of the transfer to Banks, the original contract with the jobbers, which up to that time was in solution, is discharged, and a new one created with Banks, to which Hobson was no party, and by which he was in no way (1) 5 D. M. & G. 596, 609. V.-C. J. 1870 ຫ. affected. The Plaintiff might obtain a decree against Banks, and Banks might have his remedy over against Hobson, for whom he held the shares as a trustee; but there was no privity between CASTELLAN the Plaintiff and Hobson, so as to give the Plaintiff a right of suit against Hobson directly: Ex parte Bugg (1); Bermingham v. Sheridan (2); Coles v. Bristowe (3); Hawkins v. Maltby (4); Lindley on Partnership (5). Secondly: Assuming there to have been any contract between the Plaintiff and Hobson, it failed by the winding-up of the company before it was completed, and no indemnity can be obtained by the Plaintiff. Thirdly: The Plaintiff has been guilty of laches, and, moreover, has refused the offer made by Hobson to take a transfer into his own name and pay the calls. Mr. Kay, in reply: As to the objection that there was no contract between the parties: Hawkins v. Maltby (6). There was a complete contract between the Plaintiff and Banks, according to the rules and custom of the Stock Exchange, which are imported into their transactions; and it being made out that Banks was a mere nominee of Hobson, the real purchaser, Hobson is liable to the Plaintiff: Coles v. Bristowe; Sheppard v. Murphy (7). Nor does the winding-up put an end to the contract absolutely, or render it incapable of performance, if the Court shall so direct: Companies Act, 1862, s. 153. But our bill is not for specific performance, but for an indemnity against the legal liability in respect of the shares which attaches to the Plaintiff from his name being still upon the register. As to the refusal by the Plaintiff of the offer to substitute Hobson's name for that of Banks in the deed of transfer, the Plaintiff had no power to make the alteration; and if the offer had been bona fide, Hobson should have called upon Banks to transfer the shares to him. Hobson being admittedly the real purchaser, cannot escape from his liability by getting the shares (1) 2 Dr. & Sm. 452. (2) 33 Beav. 660. (3) Law Rep. 4 Ch. 3. VOL. X. (4) Law Rep. 3 Ch. 188; Ibid. 4 Ch. 200. (6) Law Rep. 4 Ch. 202, 203. (7) 16 W. R. 948. E 2 HOBSON. |