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not been decided that it was so,(v) and that the want of funds must be pleaded by the defendants. Some difference of opinion existed as to the meaning of the words "Capital stock and funds." In the court below, it was thought that the available funds or money in hand was thereby meant; but, in the court of error, that the capital not paid up, or so much thereof as could be obtained, was included. The whole case is, no doubt, involved in great difficulty; but it may be suggested whether, in fact, the three separate rights of action did not coexist, the first two subject to the sufficiency of the Fund, namely, either against the subscribing directors, or all, or any, of the co-partners; the third, to the amount of the unpaid subscription of the shareholders against them individually.

18. In a policy issued by a company completely registered under the Joint-Stock Companies' Act, there was a similar clause ;(w) and judg ment having been recovered against the company, and a return of nulla bona made to a fieri facias issued against it, a rule was obtained to show cause why execution should not issue against an individual shareholder under the 66th section of that Act. It was held that no action should have lain against the shareholder upon the policy, to which he was not individually a party, and that the plaintiff was precluded altogether from taking proceedings against him at law.(x)

*19. But, however, great may be the difficulty in proceeding [*342] against a shareholder at law, he may, at all events, be made liable in equity to the extent of the unpaid portion of his shares, and particularly as a contributory by virtue of the Joint-Stock Companies' Windingup Acts. In the case of the same company (In re the Merchant Traders' Ship Loan and Assurance Company, and the Joint-Stock Companies' Winding-up Acts, Lord Talbot's case, (y) when all the policies contained the clause already recited, limiting the liability of the respective shareholders, it was objected that, as no call could be made under the machinery provided by the company's deed of settlement, no call could be enforced by the Court. But Sir J. Parker, V. C., said: "The cases cited leave untouched the question, which seems to me not to admit of dispute, that the claims of the policy holders are in the nature of charges upon the property or assets of this company, which can only be enforced by a bill in equity, or by petition under the Winding-up Acts, or in the Bankruptcy Court under a fiat in bankruptcy:" and he added, "If I found in the deed of settlement any precise stipulation that the capital was to be paid at any fixed periods in various instalments, I should have very great difficulty in saying that they were to pay it otherwise. I find

(v) Dictum per Lord Campbell, 15 Jur. 1007.

(w) Hallett v. Merchant Traders' Ship Loan and Assurance Company, 13 Q. B. 964; Hassell v. the same company, 4 Exch. 525.

(x) The proviso was in the following terms:-"That the said policy, and any thing therein contained, should in no case extend, or be deemed or construed to extend, to charge or render liable the respective proprietors of the said company, or any of them, &c., to any claim or demand whatsoever in respect of the said policy, or of the insurance thereby made, beyond the amount of their, his, or her respective individual share or shares in the capital stock of the said company, but that the said capital stock and funds should alone be liable to answer all claims and demands by virtue of the said insurance or incident thereto.

(y) 16 Jur. 855.

no such provision, but that these gentlemen were to pay a certain amount;" and thereupon the motion of a contributory disputing the order of the master, the effect of which was to require payment of the full amount of the shares subscribed, was dismissed.

20. The effect of these clauses is to create a charge upon the property of the company; and hence, upon a bill being filed, the assured have been considered to be entitled to be informed of the particulars of the property subject to their charge, unless the defendants distinctly offer to admit the sufficiency of funds.(*)

*21. When the proviso that the capital stock and funds of

the company should alone be liable was inserted in a policy [343] issued by an incorporated company, in the form of a deed-poll under their common seal, it was held that the stipulation was merely the expression of that which would have been tacitly understood, expressio eorum quæ tacitè insunt, and was unimportant, the limited liability being incident at law to a corporation. (a)

22. Lastly, when a bonus has been actually declared, it may be recovered, together with the principal, by the assured by any proceeding suitable to the recovery of the latter. The declaration of the bonus gives to each of the assured a distinct right to the sum allotted to him.() Until the amount of the bonus had been ascertained, the representatives of the assured could, however, only assert their claim in a court of equity, in which alone a suit could be entertained to compel the directors to value the assets of the concern and declare a bonus of the surplus. There is no instance on record of such a suit.

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1. THE sale and purchase of annuities are subject to the provisions of the Annuity Acts requiring the inrolment in the Court of Chancery of a memorial of the deed or instrument whereby they are granted, in a form prescribed by those Acts. The original Annuity Act(a) was intituled "An Act for registering the Grants of Life Annuities, and for the better Protection of Infants against such Grants," and recites, as the evil which the Act was intended to remedy, "that the pernicious practice of raising money by the sale of life annuities had of late years greatly increased and was much promoted by the secrecy with which such transactions were conducted." It is now completely repealed, except so far as its provisions are re-enacted by the present Annuity Act; (b) but the object of

(2) Law v. The London Indisputable Life Policy Company, 22 L. T. 19. (a) Sunderland Marine Insurance Company v. Kearney, 15 Jur. 1006. (Q. B. in error.)

(b) Carlisle v. The Southampton Railway Company, 1 McN. & G. 689. (a) 17 Geo. 3, c. 26.

AUGUST, 1853.-15

(b) 53 Geo. 3, c. 14.

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both Acts is the same, namely, in the first instance, to throw around the vendor the protection of its provisions. Judging, however, from what we learn from contemporary history, (c) it would seem that the legislature might have had a further object, namely, to discourage [*345] the grant not only of improvident, but of gambling annuities, as well by infants and private individuals as by annuity societies, which at that time existed in great numbers, and many of which proved themselves unworthy of the confidence of the public. This is shown by the third section of the Act, which provides that in the registration of annuities granted by companies formed for the purpose of granting or purchasing annuities, and consisting of more than ten persons, it shall be sufficient to describe such company by the usual firm or name of trade.(d) It will be thus seen that annuities granted by insurance offices not incorporated require inrolment as well as where purchased of a private person; and this is equally true as regards companies completely registered under the Joint-Stock Companies' Registration Act, such companies, as we have seen, not being bodies corporate, although incorporated for the purposes of the Act.

2. The act requires that, within thirty days after the execution of every deed, bond, instrument, or other assurance, whereby any annuity shall be granted for one or more lives, or for any term of years, or greater estate determinable on one or more life or lives, a memorial of [*346] *the date of every such instrument or other assurance, of the names of all the parties, and of all witnesses thereto, and of the person or persons for whose life or lives such annuity is granted, and by whom it is to be beneficially received, the pecuniary consideration for granting the same, and the annual sums to be paid, shall be inrolled in the Court of Chancery, in a form given by the act, with such alterations as the nature and circumstances of any particular case may reasonably require; otherwise that every such instrument or assurance shall be null and void to all intents and purposes.(e)

(c) "When it was found that a fraudulent system of assurance would no longer be permitted, a fraudulent system of annuities usurped its place, and parliament was once more compelled to legislate. Exchange Alley became pre-eminent in buying and selling annuities. The speculators were as ready to assure the life of or to promise an annuity to a country clergyman, as they were to trade in the fall of a prime minister, or to traffic in the blood of an admiral. They took the hoard of the servant with as much coolness as they coined false intelligence; and when a reverse of fortune made them penniless, it involved hundreds of innocent persons with them. The frauds which now attend loans of money to the spendthrift, are nothing compared to the gigantic scale with which, under the name of annuities, they were then carried on. If a man granted an annuity on a fine estate for a consideration, that consideration was rarely paid in money. The unhappy borrower was obliged to take whatever he could get. Thus the stock-jobber made his prey receive consols at a price far above that of the market. The merchant gave him a bill of lading of some indifferent kind of merchandise. The banker handed him long-dated bills, and sometimes was a bankrupt before they were due. Large tradesmen, many of whom then, as now, surreptitiously carried on the trade of money-lending, got rid of goods which were otherwise unsaleable. One piece of plate is related to have done yeoman service to an usurer of this class; into whatever transaction of the kind he entered, it was always introduced. It was valued at 600l. to the recipient, and was always bought back for 702."—Francis's Annals of Life Assurance, 157.

(d) Sect. 3.

(e) S. 2. See Appendix.

A later act provides, that where an annuity is secured by several distinct instruments, the omission to memorialise one of them shall not invalidate those which have been duly inrolled.(f) The inrolment of this memorial is essential to the validity of the transaction, and the form is sufficiently simple to create some surprise at the number of reported cases which have actually occurred upon it.

This schedule is, as Sir Edward Sugden has observed, of a very ample kind; and if followed litigation is avoided. "It is impossible," he added, "except by great neglect, to commit a mistake in respect of the forms of the act of parliament; but somebody had been neglectful, and in that way the annuity was not worth as an annuity the parchment on which it. was written."(g)

3. The thirty days are to be computed exclusively of the day of executing the instrument. (h) When there are witnesses their names must be inrolled, but it is not necessary that there should be witnesses.(i) When the instrument is an annuity policy, or deed-poll in the form usually issued by insurance companies, comparatively few questions can arise; but as the sale and purchase of annuities *by such [*347] companies are not uncommon when the arrangement is carried out by deeds inter partes, it may be worth observing that the date to be mentioned in the memorial is the date that the instrument bears, not the day on which it is executed by all the parties; that it is not necessary that it should have been executed by all the parties before inrolment, although the party delaying the execution may be the grantor. Hence, when any party to such a deed is abroad, it will be proper to inrol the deed before it is sent out of England, and that it should be executed by such party without witnesses.(k)

The Christian names of the subscribing witnesses must be entered in the memorial; initials are not sufficient, but their descriptions are not required.(4)

4. A statement of the consideration is required, and "how paid." By this is meant the money consideration only. Hence, when the consideration was the conveyance of an estate in land, it was held that no memorial need be inrolled, and the decision was the same where the consideration was a debt when pre-existent; (m) but when the consideration is a money consideration it must be correctly described, as paid in gold coin, notes of the governor and company of the Bank of England, or any other bank, and where the consideration, actually paid in country bank notes, was described as paid in Bank of England notes, the annuity was set aside;(n) where paid by a draft on a banker, it was considered necessary that the time at which such draft was payable should be stated.().

5. The sixth section provides, that when the consideration is expressed to be paid in money, but the same or any part of it is paid in goods, or

(f) 3 Geo. 4, c. 92, 6. 2. Ex parte Swann, 13 Jur. 147. (V. C. B.) (g) Lewis v. Hilman, 3 Clark, House of Lords Case, 623.

(h) Ex parte Fallon, 5 T. R. 283.

(i) Flight v. Buckeridge, 6 B. & C. 49. (1) 3 Geo. 4, c. 92, s. 1.

(k) Flight v. Buckeridge, 6 B. & C. 49.
(m) Doe d. Church v. Pontifex, 9 C. B. 229.
(n) Ex parte Lewis, 2 Ad. & Ell. 135.
(9) Drake v. Rogers, 47 B. Moore, 402.

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both Acts is the same, namely, in the first instance, to throw around the vendor the protection of its provisions. Judging, however, from what we learn from contemporary history, (c) it would seem that the legislature might have had a further object, namely, to discourage [*345] the grant not only of improvident, but of gambling annuities, as well by infants and private individuals as by annuity societies, which at that time existed in great numbers, and many of which proved themselves unworthy of the confidence of the public. This is shown by the third section of the Act, which provides that in the registration of annuities granted by companies formed for the purpose of granting or purchasing annuities, and consisting of more than ten persons, it shall be sufficient to describe such company by the usual firm or name of trade.(d) It will be thus seen that annuities granted by insurance offices not incorporated require inrolment as well as where purchased of a private person; and this is equally true as regards companies completely registered under the Joint-Stock Companies' Registration Act, such companies, as we have seen, not being bodies corporate, although incorporated for the purposes of the Act.

2. The act requires that, within thirty days after the execution of every deed, bond, instrument, or other assurance, whereby any annuity shall be granted for one or more lives, or for any term of years, or greater estate determinable on one or more life or lives, a memorial of [*346] *the date of every such instrument or other assurance, of the names of all the parties, and of all witnesses thereto, and of the person or persons for whose life or lives such annuity is granted, and by whom it is to be beneficially received, the pecuniary consideration for granting the same, and the annual sums to be paid, shall be inrolled in the Court of Chancery, in a form given by the act, with such alterations as the nature and circumstances of any particular case may reasonably require; otherwise that every such instrument or assurance shall be null and void to all intents and purposes.(e)

(c) "When it was found that a fraudulent system of assurance would no longer be permitted, a fraudulent system of annuities usurped its place, and parliament was once more compelled to legislate. Exchange Alley became pre-eminent in buying and selling annuities. The speculators were as ready to assure the life of or to promise an annuity to a country clergyman, as they were to trade in the fall of a prime minister, or to traffic in the blood of an admiral. They took the hoard of the servant with as much coolness as they coined false intelligence; and when a reverse of fortune made them penniless, it involved hundreds of innocent persons with them. The frauds which now attend loans of money to the spendthrift, are nothing compared to the gigantic scale with which, under the name of annuities, they were then carried on. If a man granted an annuity on a fine estate for a consideration, that consideration was rarely paid in money. The unhappy bor rower was obliged to take whatever he could get. Thus the stock-jobber made his prey receive consols at a price far above that of the market. The merchant gave him a bill of lading of some indifferent kind of merchandise. The banker handed him long-dated bills, and sometimes was a bankrupt before they were due. Large tradesmen, many of whom then, as now, surreptitiously carried on the trade of money-lending, got rid of goods which were otherwise unsaleable. One piece of plate is related to have done yeoman service to an usurer of this class; into whatever transaction of the kind he entered, it was always introduced. It was valued at 600l. to the recipient, and was always bought back for 70%."—Francis's Annals of Life Assurance, 157.

(d) Sect. 3.

(e) S. 2. See Appendix.

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