tickets are passed on the ticket-day between 10 and 1 o'clock, without any price thereon, and the accounts made up therewith are settled at the making-up price of the day; the tickets must be of certain amounts specified in the rules and may not be split, except in the settlement department of the Stock Exchange; smaller amounts are settled without tickets (r. 116). The making-up price is settled (r. 120), and on settling days unsettled bargains are temporarily adjusted at prices to be fixed by the clerk of the house at 2.30 p.m., and the differences are to be paid in the usual manner (r. 121), vide ante, p. 552. These securities, if not taken up by 2.30 p.m. (12.30 p.m. on Saturdays) on the day for which they are sold, may be sold out by the seller, and the buyer charged with the loss (r. 115); so if not delivered by 2.30 p.m. (12.30 p.m. on Saturdays), they may within a limited time be bought in by the buyer, and the seller charged with the loss (rr. 118, 119). Buyers are to pay for such portions of securities as may be delivered within the prescribed time (r. 116). The deliverer is responsible for the genuineness of securities delivered (r. 127).

In the case of English and India Funds, and Corporation Stock, there is only one account in each month for which all bargains not otherwise specified are made (r. 78). This account, however, relates chiefly to the speculative dealing in stock; bonâ fide sales and purchases are made for any specified days at other times. The making-up price is fixed by the Clerk of the Stock Exchange by taking the average price between certain hours on the three days of the account (r. 88). If the member selling stock does not receive a transfer-ticket before 1.30 p.m. (12.45 p.m. on Saturdays) on the day upon which it was contracted to deliver the stock, he may sell out the same, and claim of the person who at 1.30 p.m. held the ticket any loss hereby occasioned (r. 81). The issue of transfer tickets and selling out in the case of non-delivery thereof on the purchase of Colonial Government inscribed stocks, is regulated by r. 82. Stock bought for a specified day and not then delivered, may be bought in on the following day at 11 a.m., and the member causing the default shall pay any loss, and also 2s. 6d. per cent. for the non-delivery of the stock (r. 83). Stock receipts (which are evidence that the stock has been transferred in the bank books) for stock bought for a specified day must be delivered before 3.30 p.m., or 1.30 p.m. on Saturdays; English and India Government and Corporation securities to bearer must be delivered before 3 p.m. or 1 p.m. on Saturdays (r. 84).

Bargains in the scrip of a new loan, or the shares of a new company, are contingent on the appointment of a special settling-day " (r. 130). Where the appointment of such settling-day has been obtained by the fraud of persons not parties to the bargain, the bargain is good. Ex pte. Ward, 20 Ch. D. 356, C. A.

A member of the Stock Exchange unable to fulfil his engagements is publicly declared a defaulter (r. 150), and he then ceases to be a member (r. 151). In every case of failure the official assignee (who is a member appointed by the Stock Exchange Committee under r. 174) "shall publicly fix the prices current in the market immediately before the declaration, at which prices all persons having accounts open with the defaulter shall close their transactions by buying of or selling to him such stocks, shares, or other securities as he may have contracted to take or deliver, the differences arising from the defaulter's transactions being paid to or claimed from the official assignees " (r. 177); but the assignees shall not claim differences on a defaulter's estate until they become due (r. 178). See hereon Ex pte. Grant, 13 Ch. D. 667, C. A.; Ex pte. Ward, 22 Ch. D. 132, C. A.

Time bargains for the sale of stock or shares of which the seller is not possessed at the time, but which are to be transferred at a future time, may be void under stat. 8 & 9 Vict. c. 109, s. 18, post, p. 589, as a wager, e.g., where the real bargain is that differences only shall be paid at the time of completion. Grizewood v. Blaine, 11 C. B. 538; 21 L. J., C. P. 46; Cooper v. Neil, W. N. 1878, p. 128, T. Sit. C. A. A contract of this nature is however unusual on the Stock Exchange, and the general course of speculation is as follows: see Ex pte. Grant, 13 Ch. D. 667, 670 et seq. A. employs B. a broker to speculate for him; B. to carry out the speculation enters into contracts to buy or sell stock or shares for A., and in order to protect himself B. subsequently enters into contracts to sell or buy respectively similar amounts of stock or shares (vide ante, pp. 552, 553), as A.. knows that B. must. A. never intends to take delivery of or deliver the stock bought for or sold to him, as B. knows, but is content to run the risk of having to accept or deliver in the hope B. will be able to arrange matters so that differences only shall be payable, and B. knows A. could not pay for stock bought or deliver that sold for him. In such a case B. having entered into real contracts on behalf of A., the transactions between them is not of a wagering nature, and B. is entitled to be indemnified by A. and to recover commission on the sales or purchases. Thacker v. Hardy, 4 Q. B. D. 685, C. A.; Knight v. Fitch, 15 C. B. 566; 24 L. J., C. P. 122. It has been held that it is not material that B. has not entered into separate contracts on A.'s behalf, but has appropriated to him parts of larger amounts of stocks which he has bought as principal, in view of dividing them among A. and other clients. Ex pte. Rogers, 15 Ch. D. 207. See, however, Bostock v. Jardine, post, p. 580. See further as to B.'s rights against A., post, pp. 567, 568.

The actions of ordinary occurrence are-for not accepting stock or shares; for not delivering or replacing them; and for not paying for them when transferred.

Action for not accepting.] The plaintiff in order to prove his alleged tender of or readiness to transfer stock, if denied, must show his attendance at the time or latest office hour of the day fixed for transfer, and the non-attendance of the defendant; or an actual tender and refusal to accept by the defendant; or that defendant in some way dispensed with such tender or attendance of the plaintiff; Bordenave v. Gregory, 5 East, 107; and on such sales the facts proved may warrant a finding of readiness to transfer, though no transfer be actually tendered. Humble v. Langston, 7 M. & W. 517; see ante, pp. 516, 524, and Shaw v. Rowley, 16 M. & W. 810. Although the court gave no decision on the point, it was intimated in Hibblewhite v. M'Morine, 6 M. & W. 200, that such readiness was disproved by showing that the plaintiff had no stock or shares to transfer at the time for completion. As, however, it was decided in Rudge v. Bowman, L. R., 3 Q. B. 689, that the seller does not contract that he will himself transfer the shares, for the contract is merely to procure a transfer of shares into the defendant's name, it seems immaterial whether the plaintiff have the stock standing in his own name or not, provided he has the requisite amount of shares under his control. In a contract to deliver shares on a certain day, time is of the essence of the contract both at law; Fletcher v. Marshall, 15 M. & W. 755, 763; see also Maxted v. Paine, and Maxted v. Morris, ante, p. 551; and in equity; Doloret v. Rothschild, 1 Sim. & St. 590. Where no time is named the delivery must be within a reasonable time. De Waal v. Adler, 12 Ap. Ca. 141, P. C. The reasonableness of the time is not affected by circumstances unknown to the buyer, and not disclosed by him to the seller. S. C.

The plaintiff must of course be prepared to prove the title, if in issue, but the title to shares in commercial companies, in which no documentary evidence of title is provided, does not stand on the same footing as the title to land, and requires no such strict proof. On the sale of a share in a cost-book mine, proof of the existence of the mine and of the authorized entry of the plaintiff's name in the cost-book of the mine as an adventurer, will be evidence of title. The contract of sale in such adventures seems indeed to amount to nothing more than an agreement to substitute the defendant for the plaintiff in the possession of such interest as the plaintiff, in common with the other shareholders, can lawfully claim in the subject of the adventure. See Curling v. Flight, 6 Hare, 41; S. C. Ld. Cottenham, C., 2 Phill. 613. Where the question was whether there was a proper conveyance by deed, a written transfer by a foreigner of a foreign mine is evidence of it, though not under seal; it not appearing by any evidence that a seal was necessary abroad. Steigenberger v. Carr, 3 M. & Gr. 191. See further as to the proof of the title to shares, post, Part III., Actions by and against companies.

cor.

It was held that, in the absence of usage to the contrary, where the assent of directors was necessary for a transfer, the vendor must procure and show such assent; Wilkinson v. Lloyd, 7 Q. B. 27; and that it was the business of the purchaser to prepare and tender the written transfer to the seller for his execution. Stephens v. De Medina, 4 Q. B. 422. But where, as is commonly the case, the sale takes place on the Stock Exchange, the contract is regulated by the usage of that market; by that usage, it is the duty of the vendee to pass a name of a person to whom the vendor is to transfer the shares, and the latter is to tender certificates and transfers of them, duly executed, to the vendee, and it is thereupon the duty of the vendee to execute those transfers, and to register them at the offices of the company (ante, pp. 550, 551). By the Companies Clauses Consolidation Act, 1845, s. 12, the want of the certificate of shares in a company constituted under that Act shall not prevent the holder from disposing of the shares.

Where the company is not completely constituted, a contract for the sale of shares will be satisfied by the tender of the letter of allotment made out to the seller; for that is all which could have been contemplated by the parties. Tempest v. Kilner, 3 C. B. 249. As to contracts on the Stock Exchange for shares of a new company, vide ante, p. 554.

Where bought and sold notes for the sale of mining shares named the time for payment, but were silent as to the time of delivery, oral evidence was held admissible to show that, by custom, the shares were not deliverable till the time named for payment. Field v. Lelean, 6 H. & N. 617; 30 L. J., Ex. 168.

Damages.] The measure of damages for not accepting stock sold is the difference between the contract price and the market price on the day of the breach of contract. Boorman v. Nash, 9 B. & C. 145. The measure of damage in the case of railway or other shares in companies is the difference between the contract price and the market value on the day of breach, or earliest day afterwards on which they could be sold. Pott v. Flather, 16 L. J., Q. B. 366.

Action for not delivering or replacing.] The vendee, in the absence of usage or express agreement on the point, must show a tender to the defendant of a written transfer for execution by him, in cases where such formal instrument is necessary, as in railway shares; Stephens v. De

Medina, supra; unless the defendant has, by his conduct, dispensed with such tender. See cases supra. In a sale on the Stock Exchange the tender is unnecessary, as it is there the duty of the transferor to deliver a transfer to the transferee, together with certificates of the shares, but he must show that the name of the transferee was duly passed. Vide ante, p. 550. A tender of payment by the plaintiff is not necessary. Stephens v. De Medina, ante, p. 556. It is only necessary that he should be ready and willing and able to pay. A contract to deliver shares in a company does not require the actual delivery of the scrip certificates, but it is sufficiently performed when the vendor has put the vendee in the position of legal owner of the shares. Hunt v. Gunn, 13 C. B., N. S. 226. Where, after the contract for the sale of shares, and before transfer, new shares are allotted to the vendor in right of the shares he has sold, the purchaser is entitled to these shares. Stewart v. Lupton, 9 W. N. 1874, p. 171, V.-C. M., Id., p. 178, L. JJ. See Rules of the Stock Exchange, 1890, r. 107. In a contract to deliver shares on a certain day, time is of the essence of the contract. Vide ante, pp. 314, 553.

Damages.] When the action is for non-delivery, and the plaintiff had not paid the price, the measure of damage is the difference between the contract price and the market value on or about the day of breach; for the plaintiff might have bought other stock immediately; and the same rule applies to shares in a company. Shaw v. Holland, 15 M. & W. 136; Tempest v. Kilner, 3 C. B. 253.

In an action for not replacing stock or shares, lent by the plaintiff to the defendant, a different measure is adopted. There the plaintiff may have been prevented from replacing them himself, for he may not have had, and is not bound to have, funds in his hands to do so. He is therefore entitled to damages sufficient to enable him to buy other stock or shares, at the current price at the time of the trial, if that be larger than the price at the time fixed for replacing. Shepherd v. Johnson, 2 East, 211; M'Arthur v. Seaforth, Ld., 2 Taunt. 257; Owen v. Routh, 14 C. B. 327; 23 L. J., C. P. 105. Any other special damage arising from the breach of contract, such as the loss of dividends, &c., must be alleged in the claim if sought to be recovered.

Action for shares, &c. sold.] In a sale on the Stock Exchange the transferor must prove a tender of the transfer and of the certificates of the shares to the buyer, or his broker, unless such tender has been waived. Vide ante, p. 551. Where shares in a company are not legally saleable for want of registration of the company under an Act of Parliament, this may be pleaded as a defence. Semb., Lawton v. Hickman, 9 Q. B. 563.

In the sale of shares or securities there is generally no implied warranty; but it is implied that they are really what they purport to be, and what the buyer means to purchase. Where, for instance, scrip is known in the market as "Kentish Railway Scrip," though informally issued by a railway company, the buyer cannot treat the sale as a nullity on that ground, if the jury find that it was what he contracted to buy. Lambert v. Heath, 15 M. & W. 486.

ACTION FOR WORK AND MATERIALS.

In an action for work done, the plaintiff's proofs are, 1. The contract, express or implied; 2. The performance of the work and supply of materials, if any; and 3. The value, if the remuneration be not ascertained by

the contract.

The contract.] Where there was a special agreement, the terms of which had been performed, it raised a duty for which an indebitatus assumpsit or the common counts lay. B. N. P. 139; cited by Holroyd, J., in Studdy v. Sanders, 5 B. & C. 638; Robson v. Godfrey, Holt, N. P. 236. And this principle still holds good although the Rules, 1883, O. xix. IT. 4, 5, 6, 15, vide ante, p. 301, require a more specific statement of the plaintiff's claim.

If the contract have not been executed, but the plaintiff have been prevented from executing it by the absolute refusal of the defendant to perform his part of it, or by an act done by the defendant which has incapacitated the plaintiff from performing it, the plaintiff may rescind the contract, and sue on a quantum meruit for past services. Planché v. Colburn, 8 Bing. 14; 2 Smith's Lead. Cas., notes to Cutter v. Powell. So, where the plaintiff was to have certain goods for his services, and the defendant sold them, or caused them to be sold, by his own default, this action lies for the money value. Keys v. Harwood, 2 C. B. 905. Where the plaintiff agreed to print a work, but refused to print a libellous dedication to it, and the author thereupon refused to accept or pay for the rest, he was held liable to pay for printing the body of the work. Clay v. Yates, 1 H. & N. 73; 25 L. J., Ex. 237.

If there be a special agreement, and work has been done and been adopted by the defendant, though not strictly pursuant to such agreement, the plaintiff may recover upon a quantum meruit; for otherwise he would not be able to recover at all. B. N. P. 139; Burn v. Miller, 4 Taunt. 745. But the defendant may refuse to pay for the subject-matter of the plaintiff's work and labour, where it deviates from the special contract; and in such cases the plaintiff cannot recover even on a quantum meruit. Ellis v. Hamlen, 3 Taunt. 52. Where, indeed, the plaintiff contracted to build cottages by the 10th of October, and they were not finished until the 15th, the defendant, having accepted the cottages, was held liable on a general declaration for work, labour, and materials. Lucas v. Godwin, 3 N. C. 737. See Gray v. Hill, Ry. & M. 420; and Savage v. Canning, I. R., 1 C. L. 434, C. P., cited ante, p. 503, and infra.

An implied promise to pay for work done extra, and not under the contract, can only arise in cases where the defendant is competent to contract by parol. Lamprell v. Billericay Union, 3 Exch. 283. As to the liability of a corporation for work done, see post, Part III., Actions by Companies— Contracts by Corporations.

To fix a defendant with extras, the acceptance and adoption ought to be under circumstances which imply approval and waiver of the deviation, and make it practicable to repudiate; for a defendant cannot be expected to refuse a house built on his own land, or to repudiate materials and labour worked into the corpus of his own property. In such cases the decisions in Sinclair v. Bowles, 8_ B. & C. 92, post, p. 565, and Ellis v. Hamlen, supra, seem to apply. In Lucas v. Godwin, supra, the stipulation as to time was held not to be a condition precedent; and there was also extra work done. The rule with regard to additions or alterations,