Page 1 All ER Reprints/[1914-15] All ER Rep /Hickman v Kent or Romney Marsh Sheep Breeders' Society and another - [1914-15] All ER Rep 900 Hickman v Kent or Romney Marsh Sheep Breeders' Society and another [1914-15] All ER Rep 900 As-well-behaved reported  1 Ch 881; 84 LJ Ch 688; 113 LT 159; 59 Sol Jo 478 CHANCERY DIVISION ASTBURY J 4, 25 MARCH 1915 31 MARCH 1915 Amity - Dependence - Age of assembly - Collision for companionship of assembly and apology Rule for all debates betwixt assembly and components to be associatered.
Company - Tenets - Consequence - Shape betwixt components and assembly and betwixt components bury se. In 1905 the accuser was elected a component of the prisoner dissectnership, and he then accordd to subserve to its rules and controls. By art 49 of the creeds of dissectnership distinctions betwixt the dissectnership and any of its components relative-to to any of the affairs of the dissectnership must be associatered to the disintegration of an umpire.
In 1914 the accuser issued a writ abutting the dissectnership and its secretary demanding precepts and exhibitions in deference of representatives which huskred to the affairs of the dissectnership and for positive other extrication, which in adventitious was to urge his hues beneath the creeds. On an collision by the prisoners for a prosper of the enjoyment pursuant to s 4 of the Amity Act, 1889, and to associate the representatives in debate to amity in correspondence prosperingcited a opportunity the conditions of art 49,
Held: (i) art 49 must be treated as a statutory unison betwixt the components and the dissectnership as well-mannered-mannered-behaved-behaved-mannered-mannered as betwixt themselves bury se, and it appointd a dependence to amity prosperingcited a opportunityin the Amity Act, 1889; (ii) the collision for companionship by the accuser and its apology by the dissectnership appointd a shape betwixt the accuser and the dissectnership by which the accuser accordd in fitness to subserve to the controls of the dissectnership, one of which controls was that all ifferences betwixt the dissectnership and a component should be suggestted to amity, and that shape as-well-behaved appointd a dependence to amity; hence, on twain those circumstances a prosper of the enjoyment would be granted. Notes Applied: Anglo-Newfoundland Development Co v R,  2 KB 214. Considered: Agricultural Wholesale Society v Biddulph and District Agricultural Society,  Ch 769; Beattie v Beattie, Ltd,  3 All ER 214. Applied: Kanssen v Rialto (West End) Ltd,  Ch 154. Considered: Rayfield v Hands,  2 All ER 194.
Referred to: London Sack and Bag Co v Dixon and Lugton, Ltd,  2 All ER 763. As to the consequence of memoranda and creeds of dissectnership, see 6 HALSBURY'S LAWS (3rd Edn) 127-130, and for predicaments see 9 DIGEST (Repl) 85-88. As to dependences to amity and prosper of chronicles, see 2 Page 2 HALSBURY'S LAWS (3rd Edn) 3 et seq, and for predicaments see 2 DIGEST (Repl) 421 et sec. For Companies Act, 1948 see 3 HALSBURY'S STATUTES (2nd Edn) 452, and for Amity Act, 1950, see ibid, vol 29, p 89. Cases associatered to: 1) Willesford v Watson (1873) 8 Ch App 473; 42 LJ Ch 447; 28 LT 428; 37 JP 548; 21 WR 350, LC & LJJ; 2 Digest (Repl) 452, 190a. (2) Re Tavarone Mining Co, Pritchard's Predicament (1873) 8 Ch App 956; 42 LJ Ch 768; 29 LT 368; 21 WR 829, LJJ; 9 Digest (Repl) 85, 362. (3) Melhado v Porto Alegre Rail Co (1874) LR 9 CP 503; 43 LJCP 253; 31 LT 57; 23 WR 57; 9 Digest (Repl) 53, 152. (4) Eley v Positive Government Security Vitality Assurance Co (1875) 1 ExD 20; 45 LJQB 50; 33 LT 743; 24 WR 252; affirmed (1876) 1 ExD 88; 45 LJQB 451; 34 LT 190; 24 WR 338, CA; 9 Digest (Repl) 87, 372. 1914-15] All ER Rep 900 at 901 (5) Browne v La Trinidad (1887) 37 Ch D 1; 57 LJ Ch 292; 58 LT 137; 36 WR 289; 4 TLR 14, CA; 9 Digest (Repl) 87, 374. (6) Kelner v Baxter (1866) LR 2 CP 174; 36 LJCP 94; 15 LT 213; 15 WR 278; sub nom Kelmer v, Baxter, 12 Jur NS 1016; 9 Digest (Repl) 682, 4498. (7) Re Famatina Development Coops, Ltd,  2 Ch 271; 84 LJ Ch 48; 30 TLR 696, CA; 10 Digest (Repl) 978, 6731. (8) MacDougall v Gardiner (1875) 1 Ch D 13; 45 LJ Ch 27; 33 LT 521; 24 WR 118, CA; 9 Digest (Repl) 619, 4130. (9) Pender v Lushington (1877) 6 Ch D 70; 46 LJ Ch 317; 9 Digest (Repl) 609, 4039. 10) Imperial Hydropathic Hotel Co, Blackpool v Hampson (1882) 23 Ch D 1; 49 LT 150; 31 WR 330, CA; 9 Digest (Repl) 553, 3655. (11) Johnson v Byttle's Iron Agency (1877) 5 Ch D 687; 46 LJ Ch 786; 36 LT 528; 25 WR 548, CA; 9 Digest (Repl) 350, 2243. (12) Bradford Banking Co, Ltd v Briggs & Co, Ltd (1886) 12 App Cas 29; 56 LJ Ch 364; 56 LT 62; 35 WR 521; 3 TLR, 170, HL; 9 Digest (Repl) 85, 363. (13) Word v Odessa Waterworks Co (1889) 42 Ch D 636; 58 LJ Ch 628; 37 WR 733; 5 TLR 596; 1 Meg 265; 9 Digest (Repl) 86, 364. (14) Salmon v Quin and Axtens, Ltd,  1 Ch 311; 78 LJ Ch 367; 100 LT 161; 25 TLR 164; 53 Sol Jo
Page 3 150, CA; affirmed sub nom Quin and Axtens, Ltd v Salmon,  AC 442; 78 LJ Ch 506; 100 LT 820; 25 TLR 590; 53 Sol Jo 575; 16 Mans 230, HL; 9 Digest (Repl) 498, 3283. (15) Welton v Saffery,  AC 299; 66 LJ Ch 362; 76 LT 505; 45 WR 508; 13 TLR 340; 41 Sol Jo 437; 4 Mans 269, HL; 9 Digest (Repl) 203, 1293. (16) Bisgood v Henderson's Transvaal Estates, Ltd,  1 Ch 743; 77 LJ Ch 486; 98 LT 809; 24 TLR 510; 52 Sol Jo 412; 15 Mans 163, CA; 9 Digest (Repl) 201, 1288. (17) Re Lewis, Ex dissecte Munro (1876) 1 QBD 724; 45 LJQB 816; 35 LT 857; sub nom R v Munro, Re Lewis, 24 WR 1017, DC; 42 Digest 126, 1211. 18) Caerleon Tinplate Co v Hughes (1891) 60 LJQB 640; 66 LT 118; 7 TLR 619; 2 Digest (Repl) 423, 27. (19) Baker v Yorkshire Affection and Vitality Assurance Co,  1 QB 144; 61 LJQB 838; 66 LT 161; 2 Digest (Repl) 423, 28. As-well-behaved associatered to in controversy: Morgan v W Harrison, Ltd,  2 Ch 137; 76 LJ Ch 548; 97 LT 445, CA; 2 Digest (Repl) 445, 170. Borland's Trustee v Steel Bros & Co, Ltd,  1 Ch 279; 70 LJ Ch 51; 47 WR 120; 17 TLR 45; 9 Digest (Repl) 99, 446. Re Wheat Buller Consols (1888) 38 Ch D 42; sub nom Re Wheal Buller Consols Ltd, Ex dissecte Jobling, 57 LJ Ch 333; 58 LT 823; 36 WR 723; 4 TLR 282, CA; 9 Digest (Repl) 469, 3071.
Adjourned Summons by which the prisoners applied for a prosper of the enjoyment beneath s 1 of the Amity Act, 1889 [see now s 4 of the Amity Act, 1950]. The prisoners, the Kent or Romney Marsh Sheep Breeders' Society and their secretary, W W Chapman, applied for an arrange prospering all chronicles in the enjoyment pursuant to s 4 of the Amity Act, 1889, and associatering the representatives in debate in the enjoyment to amity beneath art 49 of the creeds of dissectnership of the dissectnership.
The Kent or Romney Marsh Sheep Breeders' Society was incorporated beneath the Companies Acts in the year 1895 as an dissectnership not for improvement, the prisoner [1914-15] All ER Rep 900 at 902 W W Chapman having been the secretary gone the amalgamation of the dissectnership. On 8 November 1905, the accuser, Alfred John Hickman, wrote to Chapman as such secretary stating he efforted to grace a component of the dissectnership, and in response on 10 November 1905, Chapman wrote to the accuser inclosing a shape of collision for companionship.
This shape, totald and identified by the accuser, was spiritclose by Chapman on or environing 12 November 1905, and was as prospers: Page 4 "Kent or Romney Marsh Sheep Breeders' Society (Incorporated). - Collision shape for companionship. - I, Alfred J Hickman, of Fpassing Lodge, Egerton, in the calculatey of Kent, am healthful of prosperly a component of the Kent or Romney Marsh Sheep Breeders' Society (Incorporated) as a herd tenant, and I gain when elected to pay the penetration fees, annual subscriptions, nd such fees for record of ewe herds and dissecticular sheep as may then be in security or succeedingly annexed, unitedly prosperingcited a opportunity all such costs for superintendence and tattooing as may be sanctioned by the conclave for the entombval be, and to subserve to the rules and controls of the dissectnership until I by mark in fitness to the secretary reocean to be a component of the dissectnership. - Signature, ALFRED J HICKMAN. - Dated Nov 11, 1905. " The accuser was elected a component of the dissectnership on 12 December 1905, and he was sure of such choice by voice on 14 December 1905.
By art 49 of the creeds of dissectnership of the prisoner assembly: "Whenever any distinction initiates betwixt the dissectnership and any of the components forcible the penny urban or rendering or the incidents or consequences of these exhibits or of the edicts, or forcible totalthing then or thereaftercited manufactured, consequenceed, omitted, or suffered in pursuance of these exhibit, or of the edicts, or forcible any divulsion or alleged divulsion of these exhibits, or any demand on representation of any such divulsion or alleged divulsion, or incorrectly relative-to to the plea or to these exhibits, or to any edict forcible the dissectnership, or to any of the affairs of the dissectnership, total such distinction shall be associatered to the disintegration of an umpire to be apsevere by the dissecties in distinction or if they cannot accord upon a separate umpire, to the disintegration of two umpires, of whom one shall be apsevere by each of the dissecties in distinction, or an moderator to be apsevere by the two umpires. "
On 18 December 1914, the accuser issued the writ in the exhibit enjoyment demanding, bury alia, an precept to confine the prisoners from prelude any tramps to dislodge him from the dissectnership or doing any act or acts in derogation of his hues as a component of the dissectnership, and allowance for refusing to record his sheep, and a exhibition that he was qualifyd to feel his sheep recorded. A summons for plainions was issued, but antecedently it was heard or any ppoint tramp captured is the enjoyment, the prisoner dissectnership and Chapman issued this summons far the hearing of an collision by them that all ppoint chronicles be prospered, pursuant to s 4 of the Amity Act, 1889, and that the representatives in entombrogation in the enjoyment should be associatered to amity in correspondence prosperingcited a opportunity art 49 of the creeds of the dissectnership.
By s 4 of the Amity Act, 1889 [see now Amity Act, 1950, s 4]: "If any verge to a dependence, or any idiosyncratic demanding through or beneath him, commences any constitutional chronicles in any fpassing abutting any other verge to the dependence, or any idiosyncratic demanding through or beneath him, in deference of any representative accordd to be associatered, any verge to such constitutional chronicles may at any entombval prosperingcited probability, and antecedently delivering any pleadings or prelude any other tramps in the chronicles, devote to that fpassing to prosper the chronicles, and that flatter, or a umpire thereof, if acquiescent that tclose is no subserveed conclude why the representative should not be associatered is correspondence prosperingcited a opportunity the dependence, and that the suppliant was, at the entombval when the chronicles were commenced, [1914-15] All ER Rep 900 at 903 and calm?} sediment, skilful and voluntary to do all things penny to the signistic plain of the amity, may compel an arrange prospering the chronicles. " By s 27 [see s 32 of Act of 1950]: "'Submission' resources a written unison to suggest exhibit or coming distinctions to amity, whether an umpire is denominated therein or not. "
By s 14(1) of the Companies (Consolidation) Act, 1908 [see now s 20 of Companies Act, 1948]: "The note and creeds shall, when recorded, unite the assembly and the components thereof to the identical space as if they deferenceively had been identified and confirmed by each component, and compriseed leagues on the dissect of each component, his heirs, executors, and administrators, to watch all the declaration of the note and of the creeds, representative to the declaration of this Act. " Page 5 Micklem, KC, and F Hinde for the prisoners. Frank Russell, KC, and HS Simmons for the accuser in the enjoyment. Cur adv vult, 31 Mar 1915 ASTBURY J: (interpret the prosperingcited firmness) This is a summons by the prisoners to prosper chronicles in the enjoyment beneath s 4 of the Amity Act, 1889 [see now s 4 of Amity Act, 1950].
The accuser, by his writ in the enjoyment, which is brought abutting the prisoner dissectnership and their secretary, demands precepts, a exhibition, and positive other extrication in deference of representatives which initiate out of and describe solely to the affairs of the dissectnership, which extrication is, in adventitious, to urge the accuser's hues beneath the creeds of dissectnership of the prisoner assembly. It is admitted by the accuser that the enjoyment is abutting, the dissectnership and the avoid prisoner as its official, and no topic-theme is made by the accuser of tclose be two prisoners. The dissectnership is a scant assembly recorded beneath the Companies' Acts, and by its note of dissectnership it is granted (bury alia) that the showances of the dissectnership are "the boldness of the education of Kent or Romney Marsh sheep at home and aloof and the subsistence of the cleanness of the breed" Further: The society and divulgation of a herd bulk of recognised and pure-bred sires which feel been used, or ewes which feel been bred from, and of such other herd bulks (if any) which the conclave may reflect fit and the annual registration of the pedigrees of such sheep as are proved to the satisfenjoyment of the conclave to be capable for record. ... The beneathprelude of the amity upon and location of debates and entombrogations relative-to to or united prosperingcited a opportunity Kent or Romney Marsh sheep and the education thereof, and for other promotive minds. " By art 49 debates betwixt the dissectnership and any of its components are to be associatered to amity.
This is a spiritclose shape of age in privy companies, and, the showances of the dissectnership be what they are, it and its components rule he seriously gross by a unconcealed test of their debates. If this summons fails, as the accuser struggles that it should, these amity creed in creeds are of very small, if any, estimate. The accuser became a component of the dissectnership in 1905. It is bstraight on the authorities that if tclose is a dependence to amity prosperingcited a opportunityin the aim of the Amity Act tclose is a prima facie responsibility figure upon the fpassing to act upon such an unison: per LORD SELBORNE in Willesford v Watson (1) 8 Ch App at p 480.
In the exhibit predicament the prisoners struggle, primitive, that art 49, entombsequence as it does prosperingcited a opportunity the components of the assembly in their ability of components barely, appoints a dependence prosperingcited a opportunityin the aim of the Amity Act, or, substitutenatively, that the shape compriseed in the accuser's collision for companionship and the assembly's [1914-15] All ER Rep 900 at 904 apology of it equalitys to such a dependence. The accuser contests twain these affirmations. Independently Page 6 of the dissecticular debate in this predicament, the controversys, in-feature upon the primitive of these contumacys, feel exorbitant entombrogations of desolate avail and of vast tryingy. I achieve profit prosperingcited a opportunity the entombrogation as to the consequence of art 49 primitive. Minority 14(1) of the Companies (Consolidation) Act, 1908 [see new s 20(1) of Companies Act, 1948], says: The note and creeds shall, when recorded, unite the assembly and components thereof to the identical space as if they deferenceively had been identified and confirmed by each component, and compriseed leagues on the dissect of each component, his heirs, executors, and administrators, to watch, all the declaration of the note and of the creeds, representative to the declaration of this Act" It is laid down in text-books of the ocean solicitation that the creeds are not a shape betwixt the components and the assembly, but a shape prosperingcited a opportunity the other components. The creeds are a shape barely as betwixt the components bury se in deference of their hues as divideholders.
The upstraight quality of this league - that is, the league associatered to in s 14 - has absorbed soar to extensive dissequence and is unvarnished now very trying to eliminate; but it is now beaming that it is not equiponderant to a shape betwixt the assembly, on the one dissect, and the components, on the other, on which either a component can sue the assembly or the assembly can sue a component. The chief authorities in influence of these affirmations are Re Tavarone Mining Co, Pritchard's Predicament (2); Melhado v Porto Alegre Rail Co (3); Eley v Positive Government Security Vitality Assurance Co (4); and Browne v La Trinidad (5) In Pritchard's Predicament (2) by the creeds of dissectnership of a mining assembly it was granted that the assembly should exhibitly prosperingcited amalgamation invade into an unison prosperingcited a opportunity the vendor of the mine for the acquisition of the mine, and the value was urban.
The creeds were identified by the vendor and six other idiosyncratics, and the guides allotted divides to the vendor, but no ppoint unison was made prosperingcited a opportunity him. It was held, affirming the disintegration of WICKENS, V-C, that the creeds of dissectnership did not apaim a shape in fitness betwixt the vendor and the assembly prosperingcited a opportunityin s 27 of the Companion Act, 1867, and that positive divides should not, hence, be reputed as easily hired up. MELLISH, LJ, in giving firmness, said (8 Ch App, at p 960): "But I am of theory that the creeds of dissectnership cannot be reputed as a shape in fitness betwixt De Thierry and the assembly for the sale of the mine to them.
It may no waver be the predicament if no other shape was invacommission into, and if De Thierry identified these creeds and they were acted upon, that a fpassing of equity would halt that as betwixt him and the assembly - from their acting upon it - tclose was a uniteing shape; but in themselves the creeds of dissectnership are solely a shape as betwixt the divideholders bury as in deference of their hues as divideholders. They are the commission of dissectnership by which the divideholders accord bury se. " In Melhado v Porto Alegre Rail Co (3) the creeds of dissectnership of a knee fund assembly granted that the assembly should coalesce such expenses incurred in its society as the guides should deem rule be reputed and treated as preparatory expenses to an equality not comprehensive a sum denominated. The accusers, who were livelihooders of the assembly, had incurred preparatory expenses in its society, and it was held that no enjoyment would lie at the subserve of the accusers abutting the assembly beneath the creeds. LORD COLERIDGE, CJ, said (LR 9 CP at p 505): The enjoyment is brought on a season in the creeds of dissectnership, by which the guides are authorised to pay positive expenses if they should deem them [1914-15] All ER Rep 900 at 905 to be signisticly reputed preparatory expenses. The exhibition avers that all declaration were. manufactured, penny to qualify the accusers to be hired, their expenses; and hence I reflect we must use it that, they, were expenses which, if the guides had meditation signistic to pay then the creeds would feel uprightified them in paying. The entombrogation hence is whether an enjoyment achieve lie for the cancelment of these expenses, in pursuance of the creeds of dissectnership, to which the accusers were not dissecties.
I feel prosper to the omission that no such enjoyment achieve lie - I must say subordinately reluctantly, accordingly though I effort to "press no theory on the merits of this dissecticular predicament, having no representatives for shapeing such Page 7 an theory, it does look upright, in unconcealed, if a assembly uses the profit of the effort and worth by which its creature has been rendered potential, and spontaneously prospers into creature on the conditions that it shall be compulsory to pay for such effort and worth, that a origin of enjoyment should be absorbed. I can ascertain, besides, no constitutional creed upon which such an potion can be obeyed. It shows to me that tclose is no shape betwixt the accusers and the prisoners.
The creed of corroboration is inapplicable, for the concludes absorbed in the firmnesss in Kelner v Baxter (6). " MELLOR, J, said (ibid at p 506): "The accusers were not in any way dissecties to the creeds of dissectnership, and tclose was not, hence, any quietricted shape to pay them. " BRETT, J, said (ibid at p 507): "Tclose is no shape, in my firmness, of any nature upon which they can sue, and intrinsic tclose be a shape of some nature betwixt them and the assembly I do not see that they can feel any origin of enjoyment. No shape made prosperingcited a opportunity them antecedently the creature of the assembly can be ratified by the assembly for the concludes topic-mattered out in the predicament of Kelner v Baxter (6) prosperingcited a opportunity which I easily accord. "
In Eley v Positive Government Security Vitality Assurance Co (4) the creeds of dissectnership compriseed a season in which it was sure that the accuser, a claimant, should be the claimant to the assembly and manage its constitutional calling. The age were recorded and the assembly incorporated. The accuser was not apsevere claimant by any disintegration of the guides, nor by any record inclination the confirm of the assembly, that he acted as such for a entombval. Forthcoming the assembly remaind to habituate him, and he brought an enjoyment for divulsion of shape abutting the assembly for not habituateing him as its claimant. The primitive calculate of the exhibition sure that it was accordd by and betwixt the accuser and the prisoners that the accuser should be habituateed by the prisoners as, and apsevere by them to the function of, claimant of the assembly.
During the controversy it was struggleed that the shape professed for was not the shape symptomificationed to be compriseed in the creeds. AMPHLETT, B, in his firmness, said (1 ExD at pp 26, 28): "The creeds, captured by themselves, are solely a shape betwixt the divideholders bury se, and cannot, in my theory, communicate a straight of enjoyment to a idiosyncratic assume the accuser, not a pasty to the creeds, although denominated therein. If solicitation were wanted for this affirmation, the predicaments cited in the controversy, Pritchard's Predicament (2) and Melhado v Porto Alegre Rail Co (3) are, in my theory, impeccablely indisputable on the representative. ... For these concludes, I reflect that tclose was no shape at all betwixt the accuser and the assembly to the consequence sure in the exhibition. "
CLEASBY, B, intolerant his firmness to the positive topic-matters exorbitant in the predicament and said (ibid at p 30): "I am of theory that cl 118 of the creeds cannot by itself be captured to work as a shape betwixt the claimant and the assembly. " [1914-15] All ER Rep 900 at 906 KELLY, CB, said (ibid at pp 31, 32): "I avoid to affirm any theory as to whether these creeds, prosperingcited a opportunity the circumstance of the succeeding habituatement, apaim a shape on the conditions compriseed in them, accordingly, were I to so halt, tclose would be a trying entombrogation prospering, whether it was not ultra vires for the guides to violate to unite the assembly to habituate a claimant to manage, for all his vitality, all the constitutional calling of the assembly.
Passing by this, I prosper to deem the check exorbitant beneath s 4 of the Edict of Frauds. I do not see how anyone can waver that this unison was not to be manufactured prosperingcited a opportunityin a year. It was for the vitality of the accuser, representative to a defeasance on the possibility of his be tarnished of some leave. But, lofty, as I reflect we must, that this was not to be manufactured in a year, the entombrogation initiates whether tclose is any note or voice in fitness of it identified by the prisoners. The symptomatures afurban to the creeds were she intuitu and it can narrowly be suggested that the guides had any conception that in symptoming the creeds they were symptoming a voice of this shape. " Page 8
This predicament went to the Fpassing of Appeal, and LORD CAIRNS, LC, said (1 ExD at pp 89, 90): "I effort to say, in the primitive attribute, that in my theory a shape of the husk suggested to insist in this predicament ought not to entertain any dissecticular favour from the flatter. The announcement is that Baylis was endeavouring to shape a knee fund fortifyion assembly upon a new creed, and applied to the accuser to compel gaits to coalesce the expenses of getting up the assembly, and it was stereotyped betwixt them that in the unvarnishedt of the assembly be shapeed the accuser should be apsevere beaming claimant to the assembly. That is to say, a profit is made betwixt a negotiative man and Baylis, which, so far as the predicament is uneasy, does ot show to feel been communicated to those who were invited to append the assembly, that if the shapeer achieve gait coin for the shapeation of the assembly he shall be apsevere beaming claimant, and the assembly shall be obliged to habituate him as their negotiative confederate. When the creeds are facile, they are so by the accuser, and in them he inserts a season which no waver informs those who identified the creeds of the sequence, but does not show to feel been brought to the mark of those who appended from receiving circulars. This, I repeat; is not a transpossession which the fpassing would help in any way. I as-well-behaved effort to limitation my firmness as to whether a season of this husk is answerable to the creeds by which the flatters are controlled in deciding on entombrogations of unconcealed system. ... This predicament was primitive quieted on the 118th age.
Articles of dissectnership, as is well-mannered-mannered-behaved-behaved-mannered-mannered disclosed, prosper the note, which declares the showance of the assembly, opportunity the creeds declare the sequence betwixt the components. They are an unison bury socios, and in that conception, if the preparatory symptomification are applied to art 118, it graces a league betwixt the dissecties to it that they achieve habituate the accuser. Now, so far as that is uneasy, it is res bury alios acts, the accuser is no verge to it. No waver he meditation that by inserting it he was making his habituatement fortifyed as abutting the assembly, but his quieting on that conception of the law does not substitute the constitutional consequence of the creeds. This age is either a condition which would unite the components or else a behest to the guides.
In either predicament it is a representative betwixt the guides and divideholders, and not betwixt them and the accuser. " In Browne v La Trinidad (5) antecedently the shapeation of the assembly an unison was invacommission into betwixt B. and a idiosyncratic as trustee for the contrived assembly by which it was matter-of-certainty (bury alia) that B should be a guide and should not be movable dress prosperingcited 1888. The sixth season of the creeds granted that the guides should annex and heave into consequence the unison prosperingcited a opportunity or prosperingcited a opportunityout variation, and that representative to such variation (if any) the declaration of the unison [1914-15] All ER Rep 900 at 907 should be resolved as dissect of the creeds.
The unison was acted upon, but no shape annexing it was invacommission into betwixt the accuser and the assembly. Held, that treating the unison as esthetic in the creeds, calm?} tclose was no shape betwixt B and the assembly that he should not be removed from be a guide, the creeds be barely a shape betwixt the components bury as, and not betwixt the assembly and B COTTON, LJ, towards the end of his firmness, said (37 Ch D at pp 13, 14): "Assuming that an unscant potentiality is absorbed to the coalesceing by art 91, ought we, having deem to the shape invacommission into by the note of Nov 24, 1884, and art 6, to buryfere by precept to confine the assembly in unconcealed coalesceing from acting beneath that potentiality?
I do not communicate any theory upon the entombrogation how far the fpassing would feel buryfered by precept in arrange quietrictedally to urge an unison betwixt the assembly and the accuser that he should be an irmovable guide. That topic-theme raises entombrogations upon which I should not assume to communicate any theory prosperingcited a opportunityout having them easily sift-canvassed. In my theory we ought not to buryfere in the exhibit predicament, accordingly tclose is no such shape betwixt the accuser and the assembly. The note of unison of Nov 24, 1884, is in no way a shape betwixt the accuser and the assembly. It is said that it was annexed and incorporated into the creeds, but I cannot concede to that. The assembly by its guides acted upon the unison, but that does not compel it uniteing on the assembly.
Then is it incorporated into the creeds in such a way as to qualify the accuser to say, 'I feel such a shape betwixt me and the assembly as can be urged by a fpassing of law, and as I rule urge in equity by way of quietricted performance'? That topic-theme is brightly beaming, I reflect, by Eley v Positive Government Security Vitality Assurance Co (4). Tclose two of the components of the fpassing of primitive solicitation held, and the other component did not quietricted unbelief, that the creeds are barely a shape betwixt the divideholders bury se, and that though a idiosyncratic in whose favour a condition is made in the creeds may prosperingcitedwards feel divides allotted to him, he does not by that resources grace in the identical lie as if he had invacommission into a shape prosperingcited a opportunity the assembly. " LINDLEY, LJ, said: "Having deem to the rendering put upon s 16 of the Companies Act of 1862 in the predicament of Eley v.
Positive Government Security Vitality Assurance Co (4) and succeeding predicaments, it must be captured as beaming that the shape upon which he relies is not a shape upon which he can obey any enjoyment, either on the spiritclose law system or the equity system. Tclose rule feel been some tryingy in arriving at that omission if it had not been for the authorities, accordingly it happens that this gentleman has had divides allotted to him, and is hence a component of the assembly. Having deem to the conditions of s 16, tclose would be some security, or, at all unvarnishedts, some plausibility, in the controversy that, be a Page 9 component, the shape which is associatered to in the creeds has grace uniteing betwixt the assembly and him.
Of sequence, that controversy is public to this tryingy, that tclose could be no shape betwixt him and the assembly until the divides were allotted to him, and it would be signistic that upon the divides be allotted to him a shape betwixt him and the assembly, as to a representative not united prosperingcited a opportunity the halting of divides, should initiate. " In these immodest predicaments the age relied upon symptomificationed to communicate quietricted shapeual hues to idiosyncratics in some ability other than that of divideholder, and in none of them were components seeking to urge or fortify hues absorbed to them as components in spiritclose prosperingcited a opportunity the other corporators. The real disintegrations equality to this, that an outsider to whom hues symptomification to be absorbed by the creeds in his ability as such outsider, whether he succeedingly graces a component or not, [1914-15] All ER Rep 900 at 908 cannot sue on such creeds treating them as shapes betwixt himself and the assembly to urge such hues.
Such hues are not dissect of the unconcealed controls of the assembly appropriate aassume to all divideholders and can barely insist by efficacy of some shape betwixt such non-component and the assembly, and the succeeding Nursing Assignment of divides to an outsider in whose favour such an age is inserted does not strengthen him to sue the assembly on such an age to urge hues which are res bury alios acta and not dissect of the unconcealed hues of the corporators as such. The talk of some of the firmnesss shows, besides, to go prefer, as recognised, for solicitation, by SARGANT, J, in Re Famatina Development Corpn (7) ( 2 Ch at p 279). The wording of s 14(1) of the Companies (Consolidation) Act, 1908, which is in the identical conditions as s 16 of the Act of 1862 [see now s 20(1) of Companies Act, 1948], is trying to conspenny or beneathstand. The assembly cannot in the matter-of-certainty sequence be spring incorrectly than by edict or shape, and it is in this minority that its bond must be set, so far as the components are uneasy.
The minority does not say prosperingcited a opportunity whom they are to be reputed to feel leagueed, but the minority cannot balance that the assembly is not to be spring when it says it is to be spring, as if, , nor can the minority balance that the components are to be beneath no bond to the assembly beneath the creeds in which their hues and duties as corporators are to be set. Fur of the tryingy is removed if the assembly be supposed, as the framers of the minority may very well-mannered-mannered-behaved-behaved-mannered-mannered feel so supposed it, as be treated in law as a verge to its own creeds. It looks bstraight from other authorities that a assembly is qualifyd as abutting its components to urge and confine divulsiones of its controls: see, for copy, MacDougall v Gardiner (8) Pender v Lushington (9) and Imperial Hydropathic Hotel Co, Blackpool v Hampson (10). In the positive predicament BOWEN, LJ, said (23 Ch D at p 13): "The creeds by s 16 are to unite the assembly and all the divideholders as fur as if they had all put their confirms to them. "
It is as-well-behaved bstraight from numerous authorities that divideholders as abutting their assembly can urge and confine divulsiones of its controls, and in numerous of these predicaments juridical quietrictedions of theory show which, in my firmness, it is impotential to silence. In Johnson v Lyttle's Iron Agency (11) in an enjoyment by a divideholder abutting the assembly, JAMES, LJ, said (5 Ch D at p 693): "The mark did not furnish strictly prosperingcited a opportunity the declaration of the shape betwixt the assembly and the divideholders which is compriseed in the control of Table A" In Bradford Banking Co, Ltd v Briggs & Co, Ltd (12) the creeds gave the assembly a lien on its components' divides, and, in an enjoyment by the assembly to urge such lien, LORD BLACKBURN said (12 App Cas at p 33): Page 10 The barely one of the creeds of dissectnership which I reflect it representative to mark is the 103rd age, which is as prospers: 'The assembly shall feel a primitive and beaming lien and carry, profitable at law and in equity, upon total divide of total idiosyncratic who is the hsubstitute or one of various knee tenants thereof for all debts due from him, either nondescript or kneely prosperingcited a opportunity any other idiosyncratic, whether a divideholder or not in the assembly. ' John Faint Easby, a coal tradesman, became a tenant of a enumerate of divides in the respondent assembly, and obtained certificates for them. This signisticty in the divides was, by efficacy of s 16 of the Companies Act, 1862, alskilful quoted, I reflect, spring to the assembly as fur as if he had (at the entombval he became hsubstitute of these divides) consequenceed a league to the assembly in the identical conditions as art 103, but I do not reflect it was spring any prefer. " [1914-15] All ER Rep 900 at 909
In Wood v Odessa Waterworks Co (13) which was an enjoyment by the accuser on intequiet of himself and all other divideholders abutting the assembly, STIRLING, J, said (42 Ch D at p 642): "The creeds of dissectnership apaim a shape not barely betwixt the divideholders and the assembly, but betwixt each dissecticular divideholder and total other. " In Salmon v Quin and Axtens, Ltd (14) FARWELL, LJ, associatering to this positive announcement, said ( 1 Ch at p 318): "I reflect that that is accurate representative to this notice, that it may well-mannered-mannered-behaved-behaved-mannered-mannered be that the fpassing would not urge the league as betwixt dissecticular divideholders in most predicaments. " In Welton v Saffery (15) LORD HERSCHELL, who unbeliefed on the ocean entombrogation from the quiet of the House, made the prosperingcited unconcealed notice ( AC at p 315): "Section 16 of the Act of 1862 provides that the creeds of dissectnership, when recorded, shall unite the assembly and the components closeof to the identical space as if each component had identified his designate and afurban his confirm thereto, and tclose were in such creeds compriseed a league on the dissect of himself, his heirs, executors, and administrators, to subserve to all the controls compriseed in such creeds, representative to the declaration of this Act. The creeds thus grace in consequence a shape beneath confirm by each component of the assembly, and methodize his hues. They cannot, of sequence, subside or assume any impost caused by the quietricted conditions of the edict; but, as I feel said, the edict does not symptomification to still the hues of the components bury se; it leaves these to be attached by the creeds (or the creeds and note unitedly) which are the gregarious shape controlling those hues. I reflect it was contrived to encombine impeccable insubservience in this deference.
It is impeccablely penny that the creeds apaim a shape betwixt each component and the assembly, and that tclose is no shape in turns betwixt the dissecticular components of the assembly; but the creeds do not any the close, in my theory, methodize their hues bury se. Such hues can barely be urged by or abutting a component through the assembly, or through the liquidator representing the assembly; but I reflect that no component has, as betwixt himself and another component, any straight elevate that which the shape prosperingcited a opportunity the assembly communicates. " In all these positive-mentioned predicaments the deferenceive creeds sought to be urged huskred to the hues and bonds of the components unconcealedly as such, and not to hues of the quality profitt prosperingcited a opportunity in the immodest authorities primitive aloft associatered to.
It is trying to unite these two classes of disintegrations and the juridical theorys therein quietricteded, but I reflect this fur is bstraight - primitive, that no age can apaim a shape betwixt the assembly and a third idiosyncratic; avoidly, that no straight barely symptomificationed to be absorbed by an age to a idiosyncratic, whether a component or not, in a ability other than that of a component, as, for solicitation, as claimant, livelihooder, or guide, can be urged abutting the assembly; and, thirdly, creeds controlling the hues and bonds of the components unconcealedly as such do cause hues and bonds betwixt them and the assembly deferenceively. Page 11 In Bisgood v Henderson's Transvaal Estates, Ltd (16) BUCKLEY, LJ, said ( 1 Ch at p 759): "The mind of the note and creeds is to eliminate the lie of the divideholder as divideholder, not to unite him in his ability as dissecticular. " By s 27 of the Amity Act, 1889 [see now s 32 of Amity Act, 1950]: "'Submission' resources a written unison to suggest exhibit or coming distinctions to amity, whether an umpire is denominated therein or not. " [1914-15] All ER Rep 900 at 910
The prisoner's primitive contumacy is that art 49 is, on the authorities, a written unison prosperingcited a opportunityin the aim of this minority. In Re Lewis, Ex dissecte Munro (17) which was an enjoyment on the Attorneys and Solicitors Act, 1870, it was held that: "A instrument compriseing the conditions of an unison as to the equality of costs payable by a client to his claimant, assented to by the client, but identified by the claimant barely, is not 'an unison in fitness' prosperingcited a opportunityin the Attorneys and Solicitors Act, 1870. " LORD COLERIDGE, CJ, said: "It is impeccablely bstraight that tclose was no unison in fitness prosperingcited a opportunityin s 4 of the Act. ... An 'unison in fitness' prosperingcited a opportunityin s 4 must be an unison by twain dissecties, and twain dissecties must symptom their designates upon the unison. "
In Caerleon Tinplate Co v Hughes (18) in an enjoyment for the value of property sold, the bought voice identified by the prisoners compriseed a victuals for amity in predicament of debate, opportunity the sold voice identified by the accuser compriseed no such victuals. It was held that tclose was no dependence prosperingcited a opportunityin the aim of the Act, for an unison to suggest to amity must be in fitness and identified by twain dissecties. Re Lewis (17) was associatered to, and DENMAN, J, associatering to s 27 of the Amity Act, 1889, said (60 LJQB at p 641): "In my firmness, tclose can be no written unison intrinsic in fitness identified by the dissecties as their unison, and that 'written unison' resources one in which the conditions on twain systems are abated into fitness.
It is useclose to sift-canvass the creeds close, for the bought and sold voices difference in the adventitious dissecticular that the shapeer comprises a victuals which is truly absent in the passing. " WILLS, J, said (ibid): "Supposing tclose were a shape and the dissecties were ad idem [which in circumstance they were not in this predicament] yet tclose was no dependence beneath the Act intrinsic tclose was an unison in fitness by twain dissecties. Re Lewis, Ex dissecte Munro (17) is indisputable on this topic-matter. In the exhibit predicament the unison is to be in fitness beneath s 27, and we must halt that twain dissecties must symptom their designates to it; incorrectly tclose rule be a combat of proof, and a dissequence as to what was beneathstood by either verge. "
In Baker v Yorkshire Affection and Vitality Assurance Co (19) an enjoyment was brought on a affection system which was consequenceed in the unconcealed way by the assembly, but not by the sure, and it was held that the system, though not identified by the accuser, equalityed to a dependence to amity prosperingcited a opportunityin the aim of the Act LORD COLERIDGE, CJ, who had been a verge to Re Lewis (17) said ( 1 QB at pp 145, 146): Page 12 "The accuser sues on the system, and by so suing affirms it to be his shape; he cannot contravene a dissect of the very shape on which he is suing. He struggles that in arrange to convey into agency the amity season compriseed in the system, the system must be identified by twain dissecties; but the Act of Parliament says pin of the husk, and the barely unvarnished uprightification for the contumacy is to be set in Caerleon Tinplate Co v Hughes (18). That disintegration must be burypreted, besides, prosperingcited a opportunity deem to the dissecticular circumstances of that predicament.
Tclose was tclose no total shape; the two instruments constituting the shape differenceed representatively in their conditions, and the fpassing said it was unvarnished that the dissecties were never ad idem. " A L SMITH, LJ, said (ibid at pp 146, 147): "It is said, besides, that by the burypretation season a dependence must be a written unison to associate debates to amity. This, besides, is not a [1914-15] All ER Rep 900 at 911 higher burypretation than was necessarily put on the talk of the old Act, beneath which it was the exhaustive performance to associate these predicaments, and does not balance that in all predicaments the written unison to associate must be identified by twain dissecties. It is impeccablely unpenny to say elevate as to the disintegration in Caerleon Tinplate Co v Hughes (18) than that it rancid totally upon the signistic circumstances of the predicament. "
The termination of these disintegrations is, I reflect, that if the dependence is in fitness and is uniteing on twain dissecties as their unison, or as the equiponderant in law to an unison betwixt them, the edict is acquiescent. In the exhibit predicament the accuser's enjoyment is, in adventitious, to urge hues as a component beneath the creeds abutting the assembly. The 49th age is a unconcealed age devoteing to all the components as such, and, adissect from technicalities, it would look concludeable that the accuser ought not to be undisputed, in the omission of any proof filed by him, to produce prosperingcited a opportunity an enjoyment to urge his hues beneath the creeds which in itself is a divulsion of his bond compriseed therein to suggest his debates prosperingcited a opportunity the assembly to amity, and, if the predicament falls prosperingcited a opportunityin the Act, I see no conclude for exercising my preference beneath s 4 in his favour.
In my firmness, art 49, for the concludes aloft associatered to, causes hues and bonds urgeable as betwixt the accuser and the assembly deferenceively, and such hues and bonds are compriseed in a written instrument, but whether such instrument is a shape or unison betwixt the accuser and the prisoners prosperingcited a opportunityin s 27 of the Amity Act, 1889, depends upon whether the disintegration in Eley v Positive Government Security Vitality Assurance Co (4) and the other predicaments of a harmonious quality aloft associatered to ought to be supposed as barely entombsequence prosperingcited a opportunity and devoteing to creeds symptomificationing, primitive, to comprise an unison prosperingcited a opportunity the assembly and a third idiosyncratic, or, avoidly, to eliminate the hues of a divideholder in some ability other than that of a component of the assembly.
To unite the disintegrations and quietrictedions of juridical theory aloft mentioned, some such conception should, I reflect, be annexed, and unconcealed creeds entombsequence prosperingcited a opportunity the hues of components "as such" treated as a statutory unison betwixt them and the assembly as well-mannered-mannered-behaved-behaved-mannered-mannered as betwixt themselves bury se, and in my firmness, art 49 in the exhibit predicament does apaim a dependence to amity prosperingcited a opportunityin the penny aim and urban of the Amity Act. Having deem, besides, to the omission to which I feel prosper on the avoid contumacy exorbitant by the prisoners, it is not penny for me to sordid my disintegration upon this plea nondescript and upon the theory I feel so quietricteded.
The prisoners' avoid contumacy is that the shape compriseed in the accuser's collision for companionship, and the prisoners' apology of it, equalitys to a dependence prosperingcited a opportunityin the Act. On 8 November 1905, the accuser wrote to the assembly, through its secretary: "I effort to grace a component of the Kent Sheep Breeders' Association. Achieve you huskly use the penny tramps? " That was answered by a voice from the secretary, in which he said: "If you achieve stuff in the inclosed shape ... I shall feel vast indulgent in suggestting it to the next conclave coalesceing. " Page 13 The shape inclosed was identified by the accuser. It sure that the accuser efforted to grace a component of the dissectnership and accordd to pay an penetration fee, subscriptions, and fees for record of sheep, and to subserve to the rules and controls of the dissectnership.
At a coalesceing of the conclave of the dissectnership held on December 12 the accuser's exhibit was sure and he was elected a component of the prisoner assembly. Mark of such apology was absorbed to the accuser in a voice of December 14 by the secretary, which sure him he was elected a component of the dissectnership at the conclave coalesceing held on the 12th. In deemation of be elected a component and of his exhibit to append the dissectnership be sure, the accuser shapeed in fitness prosperingcited a opportunity the dissectnership to subserve to its rules and controls. One of such controls was a unconcealed dependence to amity of all distinctions betwixt the [1914-15] All ER Rep 900 at 912 ssociation and any of its components as such, largely ample plenty to shield the representatives in debate in this enjoyment. The dissectnership at the limit of the shape was alskilful spring to each and all its corporators to act in subserveity prosperingcited a opportunity such controls, and was at the limit of the writ in this enjoyment, and has been gone, skilful, and voluntary to so act It is suggestted on intequiet of the accuser that at the limit of this shape he may feel disclosed pin environing art 49, and that as the conclave of the dissectnership feel potentiality beneath its creeds to compel ppoint by-laws and controls as to positive representatives therein associatered to, the accuser's exhibit may feel associatered to these.
The accuser has, besides, filed no proof in influence of this, and the creeds not barely apaim the rules and controls of the assembly, but associate to the rules and controls of the dissectnership as, compriseed in them, and I am disqualified to recognize this contumacy. In my firmness, the shape so made betwixt the accuser and the dissectnership is as-well-behaved a dependence in fitness prosperingcited a opportunityin the penny aim and urban of the Amity Act, and I compel an arrange to prosper beneath s 4 and plain that the representatives in debate in this enjoyment be associatered to amity accordingly. Solicitors: Walters & Co; Ernest Simmons & Co. Reported by GP LANGWORTHY, ESQ, Barrister-at-Law.