company, acting on the forged transfer, transferred the stock to the purchaser. A. survived B., and the Court held that the company were bound to replace the stock to the amount of B.'s interest therein. This decision was affirmed upon an appeal to the House of Lords (8 H. of L. Cas. 751). It will be realised that this was a question-so to speak-between Barton's executors and the railway company, not between the company and the transferees. Those who were in the place of Barton's executors were held entitled, in equity, to have the stock replaced in their names, despite the forgery.

A case which is more directly analogous to that between the railway company and the third party transferees is that of The Bahia and San Francisco Railway Company (18 L. T. Rep. N. S. 467; L. Rep. 3 Q. B. 584). There the facts were very near to those of the case now suggested, only there was a step further taken, in the Bale to a fourth party, also a bona fide purchaser for value without notice of the fraud. T. was the registered holder of five shares in a registered joint-stock company limited, and she left the share certificates in the hands of her broker. A transfer of the shares to S. and G., which purported to be executed by T., was left with the certificates in the hands of the secretary of the company for registration. The secretary wrote in the usual course to T., notifying that the transfer had been so left. Receiving no answer after ten days he registered the transfer, removed the name of T., and placed the names of S. and G. ou the register as holders of the five shares, giving them certificates certifying that they were the registered holders of the five specific shares. Then A. bargained for five shares through holders in the usual way on the Stock Exchange, aud paid the value of the five shares he bought. The specific five shares were transferred to him by S. and G. and the name of A. was registered as the holder of the shares, share certificates being given to bim. It was afterwards discovered that the transfer to S. and G. was a forgery, and the company was ordered to restore T.'s name to the register by rule .of court under the Companies Act 1862 (25 & 26 Vict. c. 89). On a case stated under that section, a strong court, consisting of Chief Justice Cockburu and Justices Blackburn, Mellor, and Lush, decided that the giving of the certificate by the company to S. and G. amounting to a statement by the company, intended by the company to be acted upon by purchasers of shares in the market, that S. and G. were eutitled to the shares, and that A, having acted upon that statement, the company were estopped from denying its truth. A. was therefore held entitled to recover from the company, as damages for the loss of the shares, the value of the shares at the time when the company first refused to recognise him as a shareholder, with interest at 4 per cent, from that time.

The principle upon which this decision rests was substantially that of the company guaranteeing its own register. The rule is, that if you make a representation with the intention that it shall be acted upon by another, and he does so, you are estopped from denying the truth of what you represent to be the fact. The company was bound to keep a register, and was entitled to issue certificates certifying that each individual shareholder named therein was a registered shareholder of the particular shares specified. This power of granting certificates was to give the shareholders the opportunity of more easily dealing with their shares in the market, and to afford facillties to them of selling their shares at once showing a marketable title, and the effect of this facility was to make the shares of greater value. power therefore," said Cockburn, C.J., of giving certificates is for the benefit of the company in general; and it is a declaration by the company to all the world that the person in whose name the certificate is made out, and to whom it is given, is a shareholder in the company, and it is given by the company with the intention that it shall be so used by the person to whom it is given, and acted upon in the sale and transfer of shares." Again, Lord (then Mr. Justice) Blackburn said, that the first thing a company has to do when a

"The

transfer is tendered to them is to inquire into its validity. But a company may be deceived, and induced, as was the Bahia Company, without any negligence, to receive as genuine a forged trausfer. The company, and no one else, had power to inquire into the matter, and it was the intention of the Legislature that the certificates should be documents on which buyers could safely act. The third party claimants having bond fide acted upon a statement of fact made by the company to their prejudice, and having suffered damage, were clearly entitled to recover from the company.

As regards the Loudon and North-Western Railway Company and the trausferees of the certificates founded on the forgery, it is, we submit, clear that, on the authority of the Bahia case, the law is against the company and not against the transferees. The company has been guilty of the negligence, and must bear the penalty; they are estopped from denying the truth of the certificate they issue. Efforts may possibly be made to distinguish the Bahia case from the Barton case on the ground that in the former the trausferee was a fourth party and not a third; but in each instance the transferee was a bona fide purchaser for value, and that is, we submit, the essence of his title to relief and indemnity. Again, it may be urged that the Bahia case was decided under the Companies Act of 1862 (25 & 26 Vict. c. 89), while the transmission of shares in the North-Western Railway Company is governed by sects. 18-20 of the Companies Clauses Act, 1845 (8 & 9 Vict. c. 16); that there are two great parallel lines of legislation with regard to companies, one being that of the Act of 1862, the other that of the Act of 1845, and these being by no meaus alike. We agree that, as between Barton's executors and the company, the two Acts are by no means alike, as was said by Lord Justice Lindley. But, as between the company and the third party transferees, the general rule of law which is contained in the Bahia case, the principle of estoppel, applies apart from legislative enactment. Again, there is an ancient case before either of the Acts in question which is in favour of the company. In Hildyard v. South Sea Company (2 P. Wms, 76) a man trausferred stock by virtue of a forged letter of attorney. The transfer was held void and the right owner unharmed while the dividends received under the forged letter of attorney, together with the stock, were taken back from the assignee and restored to the "right owner.' This is of course au authority in the teeth of the transferees who bought the North-Western stock; but it is an authority which has been questioned, though never overruled. In Ashby v. Blackwell (2 Eden, 299; 2 Ambl 503) a joint-stock company permitted a transfer of stock under a forged letter of attorney, and it was held that the company, and not the fair purchaser, should bear the loss. Should the que-tion between the railway company and the "fair purchaser "be seriously disputed, as has been auticipated, the result should, we submit, be the same, iu favour of the transferee.

Finally, the railway company will appeal to a more modern case than these, the decisiou in Simm v. Anglo-American Telegraph Company and Anglo-American Telegraph Company v. Spurling (42 L. T. Rep. N. S. 37,; 5 Q. B. Div. 188), in which the Bahia case was discussed and distinguished. The facts of that case are too complex and special to need recital here. Shortly stated, the first action was one for wrongful representation by a fourth party transferee against the company, which had accepted a forged transfer; and the secoud was an action by the company against the third party transferee for an indemnity. Mr. (uow Lord Justice) Lindley decided each action against the company. The company appealed, and on the first action their appeal was successful; on the second it was abandoned, and no judgment was given in the Court of Appeal. That Court carefully distinguished the Bahia case, but by no meaus overruled it. Indeed, it was expressly upheld as good law. It will be for the third party transferees in the Barton case to bring themselves within the exact lines of the Bahia case, and they can fortify themselves, if need be, with the authority of Hart v. Frontino and

Bolivia South America Gold Mining Company (22 L. T. Rep. N. S. 30; L. Rep. 5 Exch. 111). The Anglo-American case may be cited pro tanto against the Barton transferees, They must and should show that the Anglo-American case is not in point, and that the Bahia case is.Law Times.

NOTES OF ENGLISH CASES. [From the Law Journal.]

HIGH COURT OF JUSTICE.

CROWN CASE RESERVED,

REGINA V. WHITCHURCH AND OTHERS.

Feb. 1.-Criminal law-Conspiracy to procure abortion— Instruments used on woman with her consent-Mistaken belief of pregnancy-Conviction of woman for conspiracy-Statute 24 & 25 Vict. c. 100, s. 58.

Case reserved by WILLS, J.

In this case Thomas Whitehurch, John Howe, and Elizabeth Cross had been convicted at the Northampton Assizes for cor spiring and agreeing together feloniously to procure the miscarriage of Elizabeth Cross by the administration of drugs and the use of instruments, The drugs and instruments were used with the cousent of Elizabeth Cross and with the mistaken impression that she was pregnant. The learued judge was of opinion, and so directed the jury, that whether or not it was no offence for a woman not pregnant to do acts to herself intending thereby to procure an abortion, which was actually impossible, it was none the less criminal in her to conspire to commit a fe'ouy, because the commission of the felony was rendered impossible by circumstances unknown to her; also, that for the woman to conspire with the men to have certain things done to her, the doing of which constituted a felony on the part of the men, was criminal, although the object to be attained, if effected by herself alone, might not have been criminal, 24 & 25 Vict. c. 100, s. 58. The question argued was whether the conviction of Elizabeth Cross could be sustained.

Hammond Chambers for the prisoner,
Etherington Smith for the prosecution.

The COURT (LORD COLERIDGE, C.J., POLLOCK, B., HAWKINS, J., CHARLES J., and GRANTHAM, J.) were of opinion that the conviction was right.

Conviction affirmed.

CHANCERY DIVISION.

(Before KAY, J.)

In re BATE. BATE v. BATE,

Jan. 15, 16.-Administration-Payment of debts-Priority between pecuniary legacies and real estate charged with debts.

Testator by will directed that all his just debts and funeral expenses should be paid as soon after bis decease as convenient, and gave certain specific and general legacies, and specifically devised all the real estate of which he died possessed. The general personal estate (exclusive of the amount of the specific and general bequests) was insufficient for payment of the testator's debts, and this was an adjourned summons, raising the question whether the devisees of the real estate or the pecuniary legatees were primarily liable to contribute to the payment of debts.

Renshaw, Q.C., Stock, and MacSwiney for the parties. KAY, J., held that the debts were charged on the real estate by the will, but were payable out of the general personal estate, including pecuniary legacies, in priority to the real estate, and that the order of administration stated in "Seton "(4th ed. pp. 989, 990) and other textbooks-viz., that real estate charged with payment of debts is to be resorted to before general pecuniary lega. cies is incorrect.

QUEEN'S BENCH DIVISION. M'LARDY v. STATEUM.

Jan. 16. Feb. 6.-Practice-Summary judgment—Application for, after defence delivered-Order XIV., and rules.

This was an appeal from a decision of Field, J., at Chambers,

An action bad been brought to recover £129, and the writ was specially indorsed. The defendaut appeared and, after having obtained an extension of time fo doing so, delivered a defence. Subsequently to the de livery of the defence the plaintiff applied for summary judgment under Order XIV., rule 1. The learned judge, however, considered that, under the terms of the rules of that Order, and according to the practice of the Court, no such application for judgment could be made after delivery of a defence, and dismissed the

summons.

H. Reed for the plaintiff,

Wilfred Baugh Allen for the defendant.

Cur. adv. vult.

The COURT (POLLOCK, B., and WILLS, J.) held that, although no doubt it was the intention of the Rules that the plaintiff should make his application for sum. mary judgment as soon as appearance had been entered, or at any rate before defence delivere1, yet peculiar cases might arise in which this practice would be inapplicable. The defendant might deliver a defence the moment he entered appearance with the object of defeating the plaintiff's application. Accordingly the plaintiff could not be held to be absolutely precluded from making such application after defence delivered, nor the judge deprived of his discretionary powers to allow it. Since the plaintiff in the present case was, therefore, not necessarily too late in making his application, the learned judge at chambers might properly entertain it on the merits, and, if the defence proved to be a sham, allow the plaintiff to sigu judg meut.

THE INCORPORATED LAW SOCIETY OF IRELAND.

The Council met on Wednesday last, the 26th February, the Presi lent, Mr. W. Burroughs Stanley, in the Chair, and twenty-two other members present. Reports from the Court and Offices' Arrangements Committee, and the House and Library Committee, were read and adopted.

A Costs query between two solicitors was referred to the Costs Committee.

The matter of delay by sheriffs in making returns to fi, fus. and Decrees was considered.

A Report on the subject of making rules, pursuant to the Employers Liability Act, was read from a Special Committee, and the Secretary was directed to communicate with the Lord Chancellor and County Court Judges thereupon.

Memorials from Apprentices were ruled upon, and some routine business having been transacted, the Council adjourned.

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VOL. XXIV.

IRISH COUNTY COURT PRACTICE. -X.

PARTIES.

THE County Court Rules as to parties are substantially the same as those of the High Court. Under section €8 of the County Courts Acts (Ir.), 1877, parties to any suit or proceeding in a County Court may appear either in person or by attorney, or counsel, and Or. I., rr. 1–9 (1877), founded on rr. 22, 23, of 1851, relates to the parties in suits in the County Courts. Notice parties can be added to a suit under Or. XV., rr. 119-122 (1877), and 30 & 31 Vic., c. 44, s. 66 (Chancery Act, 1867), and rules thereunder. Order XII. regulates change of parties in equity suits. Order XXV., r. 1, refers to parties in partition suits. Under section 58 of 14 & 15 Vic., c. 57, two or more defendants may be sued in the same Civil Bill. If one of them resides out of the kingdom, then the plaintiff can sue those of such joint contractors as reside within the jurisdiction: Claxton v. Jackson, C. & D. N. C. 527. Section 45 of the same Act regulates the practice in replevin cases, where the defendant ought to be the person on whose behalf the distress is made; care should be taken not to join the bailiff improperly: Fox v. Rabbit, 1 C. & D. C. C. 28.

As a general rule, the proper person to bring an action is the person whose right has been violated: Gray v. Pearson, L. R. 5 C. P. 574, 23 L. T. 416. Where several persons have the same interest, one may sue on behalf of all, and all persons against whom the right to any relief is alleged to exist may be joined as defendants. As to joining several defendants where the plaintiff is in doubt as to whom he should seek redress from, see Honduras Co. v. Tucker, 2 Ex. Div. 301, 46 L. J. 391, 36 L. T. 46.

Where there is more than one defendant, the Judge may grant a decree against one and a dismiss as to the other (sec. 113 of 14 & 15 Vic., c. 57), and the parties against whom such decree is made may appeal therefrom (sec. 134).

Where a civil bill ejectment on the title is brought against two defendants, each being in possession of a portion of the premises sought to be recovered, and the ejectment is defended by both, neither confining his defence to the portion in his possession, and a decree is obtained against one defendant only for his portion, the decree will be confined to that portion: but the other defendant will not be entitled to a dismiss for bis portion, or to his costs, inasmuch as he has not confined his defence under the provisions of r. 30, but his name will be struck out as a defendant (May, C.J.) : Lyons v. Lyons and Dunne, 12 Ir. L T. R. 159.

A person is not a defendant party to a suit unless process is prayed against him and served on him: Reilly v. Ward, 5 Pro. P. E. T. ed. 195. Any decree

No. 1,206

obtained without making parties those whose rights are affected thereby is void as to those parties: Gifford v. Hort, 1 Sch. & L. 386; but any objection for want of parties is taken to be waived where the defendant, having notice, submits to a decree in their absence: Onge v. Truelock, 2 Moll. 31. A party must be brought before the Court in the capacity in which it is sought to charge him: Rathborne v. Thomas, Hayes 97, 4 L. R. 42; and where two different characters happen to unite in one person, and in each of them, if held by distinct persons, he would be a necessary party, it has been held that he must be before the Court in his double character: Kellett v. Kellett, 3 Dow. P. C. 253. The proper time for objecting to unnecessary parties is at the first hearing. If the defendant neglects to do so, then he may have to pay the costs of such parties: Webb v. Blessington, 1 L. R. 165. If the plaintiff make a mistake in the name of one of the defendants, and brings a wrong party before the Court who answers the bill, the bill should be dismissed with costs, as against the person so made a defendant: Trant v. Clure, I Hog. 286.

In an English case, where neither plaintiff nor defendant appeared, either personally or by his solicitor, the plaint was struck out, and this was held to have the effect of a non-suit without costs. There was, in fact, an end of the case, and it could not be re-instated in the list Williams v. Bower, 1 C. & M. C. C. 32: Maddock v. Phillips, ib., 37. It has also been held that the Court will not set aside a judgment obtained in the absence of the defendant's attorney (which occurred through his laches) upon payment of the costs of the day, without a rule to show cause obtained on production of a satisfactory affidavit: Anon., ib., 65. Where a plaintiff has been nonsuited, and the plaint struck out of the list in consequence of his accidental absence, owing to a misunderstanding as to the time of the holding of the Court, he will be allowed to enter a new plaint without paying the usual fee: Bousfield v. Whitehead, ib., 63. If the plaintiff does not appear, and the case is struck out and the County Court Judge refuses to restore it, the Court above cannot interfere: Jennings v. London G. O. Co. (2), 30 L. T. 64, 22 W. R. 757. In such a case the defendant, if he does not admit the claim, is entitled to his costs. On a land claim being called on before the County Court Judge there was no appearance for the claimant, and the claim was dismissed with costs. The claimant having appealed, held (by Lawson, J., and Armstrong, Sergt.) that the Judge of Assize could not go into the merits of the case, even on the consent of the respondent, as by such a course he would be constituting the Assize Court an original tribunal for the hearing of land claims: Burnside v. The Mercers' Co., 11 I. L. T. R. 60.

Where a person concealed the name of his infant