to and filed with the registrar of joint stock companies. The three first have not been complied with here: and the question is, whether the single fact of the party's name appearing on the register fixes him with liability as a shareholder. In Turner v. The Metropolitan LiveStock Company, 2 Exch. 567,† the return was held to be primâ facie evidence only.

Hawkins, in support of his rule.-The question is whether the shareholder is not estopped from setting up the irregularity, if any there be. The object of the legislature in requiring a memorial or return to be filed, is, to give to persons dealing with the company the means of ascertaining with whom they are contracting. The case of Turner v. The Metropolitan Live-Stock Company, 2 Exch. 567,† is expressly in point. Mr. Copeland's affidavit shows that he has done all he could to make himself a shareholder. The transfer is in the form given in the schedule, though by accident there is no seal opposite the signature of the transferror. [COCKBURN, C. J.-It amounts to no more than this, that the parties intended the instrument to be a deed.] In equity it would still be treated as a conveyance. Having taken advantage of it as a valid deed, and having by means of it caused his name to be inserted in the register, is not the party, as between himself and a creditor whose only means of information is by looking at the register, estopped from saying that he is not a shareholder? The only effect of the omission to sign the deed of settlement, is, to suspend the party's right to *exercise the powers of a shareholder: s. 26.(a) [CROWDER, [*566 J.-You argue, from s. 26, that, although not a shareholder for the purpose of receiving benefit, by reason of his omission to execute the deed, the party is a shareholder for the purpose of being liable.] Just so: and there is no good reason why it should not be so. [COCKBURN, C. J.-When you come to put in force the very stringent provisions of the statute, must you not show clearly that the statutory liability is imposed upon the person sought to be affected? CRESSWELL, J.-Suppose the legislature had said that execution might issue against every person who signs the company's deed of settlement,—would you contend that a shareholder who has not executed the deed would be liable?]

(a) Which enacts "that no shareholder of any joint stock company completely registered under this act shall be entitled to receive any dividends or profits, or be entitled to the remedies or powers hereby given to shareholders, until he shall have executed the deed of settlement of the said company, or some deed referring thereto, and also have paid up all instalments or calls due from him, and shall have been registered in the registry office aforesaid; and, further, that it shall be lawful for every shareholder who shall have signed such deed, and paid up such instalments or calls, and shall have been registered, and he is hereby entitled, to be present at all general meetings of the company,—and also to take part in the discussions thereat, and also to vote in the determination of any question thereat, and that either in person or by proxy, unless the deed of settlement shall preclude shareholders from voting by proxy,-and also to vote in the choice of directors, and of every auditor to be elected by the shareholders; subject, nevertheless, to the provisions of this act and of the deed of settlement of the company, or other special authority, so far as such provisions shall either regulate or restrict the exercise of such powers, but not so as to deprive such shareholders thereof," &c.

No. [CRESSWELL, J.-Do they not in effect exclude the liability of one who has not signed the deed, when they *say, that, certain *567] conditions having been complied with, execution may issue against shareholders, and that, by "shareholders," they mean persons who have executed the deed? I think we cannot hold a man to be a shareholder, and as such liable to execution, who has not signed the deed, without overruling Moss v. The Steam Gondola Company, 17 C. B. 180 (E. C. L. R. vol. 84), which I think was rightly decided.] In Burnes v. Pennell, 2 House of Lords Cases, 497, by a deed of copartnership of a joint stock company, certain forms were to be observed by any transferree of shares, before he could become a member of the company. A. purchased shares, and executed some of the acts required to constitute him a member of the company, but left one of these acts unexecuted and it was held, that the execution of these acts was a duty cast on the purchaser for the benefit of the company, and that his non-execution of one of them did not enable him, as respected the company, to retire from his contract.

COCKBURN, C. J.-It appears to me to be enough upon the present occasion to say that Moss v. The Steam Gondola Company is an authority directly in point. The plaintiff is seeking to enforce a judgment obtained against the company, by means of a statutable execution against one whom he charges to be a shareholder. I quite agree with the principle laid down in the case referred to, viz. that the party against whom this very stringent proceeding is taken, must be shown to come within the definition of a shareholder given by the act,-one who has executed the deed of settlement of the company, or some deed referring thereto. Mr. Copeland in this case has not executed the deed; consequently, he is not a shareholder, and the plaintiff cannot have execution against him. The rule which has been obtained for that purpose must be discharged.

*568]

*The rest of the court concurring,

Rule discharged.

Hawkins submitted, that, inasmuch as the rule was not an experimental one, and the creditor had been misled by the appearance of the name of Mr. Copeland in the return of shareholders, he ought not to be visited with costs.

To this the court assented, and the rule was

Discharged without costs.

BARNES v. HARDING, Official Manager of THE ROYAL BRITISH BANK.(a) May 8.

Upon an inquisition on a writ of elegit, proof of possession or receipt of the rent of the land by the party, is primâ facie evidence of title.

Where a jury, notwithstanding such evidence, found that the party had no lands,-the court set aside the finding, and directed the sheriff to take a new inquisition.

A WRIT of elegit was directed to the sheriff of Suffolk, commanding him to cause to be delivered to the plaintiff, by a reasonable price and extent, all the goods and chattels of Thomas Mayhew, of Saxmundham, in the said county, in his bailiwick, except his oxen and beasts of the plough; and also all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, in his bailiwick, as the said Thomas Mayhew, or any person in trust for him, was seised or possessed of on the 30th of January, 1857, or at any time afterwards, or over which the said Thomas Mayhew on that day, or at any time afterwards, had any disposing power which he might without the assent of any other person exercise for his own benefit,-to hold the same until the sum of 1167. *198. 2d., together with interest, should have been levied.

[*569 An inquisition under the above writ was held on the 2d of April last, at Woodbridge, in the county of Suffolk, before James Sparke, Esq., the acting under-sheriff, when a jury was duly sworn, and the following evidence given, after an objection taken by Mr. Churchyard, an attorney who attended to watch the proceedings on behalf of Mr. Mayhew, instructed by Mr. Mayhew's London agents (but afterwards withdrawn), that the deeds ought to be produced, or notice to produce given before secondary evidence could be let in :

The first witness, Mr. Garrett, of Aldborough, stated that he knew the property of Mr. Thomas Mayhew at Aldborough; that it was comprised in the particulars and plan produced, and consisted of houses and about fifty acres of land (enumerating and describing the parcels) called the Crespigny House Estate; that the witness occupied a great portion of it, about twenty-five acres, holding it as tenant from year to year of Mr. Mayhew, and paying rent to him for it; that the property was Mr. Mayhew's on the 30th of January and the 23d of February last; that he (the witness) had offered, and was willing to give, 50007. for the whole estate; and that the price asked was 60007.

On cross-examination, Mr. Garrett stated that Mr. Mayhew always called the estate his own; that he paid him no rent since last January, there being none due; that no one else claimed the rent; but that he had that day received a notice from one Thrupp, who claimed to be a mortgagee, to pay no further rent to Mr. Mayhew.

(a) The rule was also intituled "And in the matter of the writ of elegit against the lands of Thomas Mayhew."

An extract from the rate-book of the parish of Aldborough was produced, and admitted, showing the gross rental of the estate to be 1827. and the rateable value 1747.

*He

James Southwell, of Saxmundham, was next called. *570] stated that he knew the property of Mr. Mayhew in Saxmundham, called The Fairfield Estate; that it was entirely in his own occupation, with the exception of a small quantity let out as garden ground, -the whole consisting of about twenty-eight acres, and the annual value 1177. 108.

On cross-examination, this witness stated that he knew of the possession only by repute, by inspection of the rate-book, and by his (Mr. Mayhew's) residence and occupation.

The under-sheriff told the jury, that, in his opinion, the evidence produced was under the circumstances admissible and sufficient; that that question was not for their consideration; but that they were to say, upon the evidence produced, what lands, &c., Mr. Mayhew was possessed of.

The jury found that there was no evidence to show that the defendant (meaning Mayhew) was possessed of any lands, &c.

Couch, on a former day, upon an affidavit of the under-sheriff verifying his notes, moved for a rule calling upon Mr. Mayhew to show cause why the inquisition taken upon the above writ of eligit should not be set aside and a new inquisition taken thereon, on the ground that the verdict was perverse. He referred to Watson's Sheriff, 2d edit. 313, where it is said, that, "where fraud, deceit, or partiality has been practised, if the writ be not filed, the court will stay the filing of it, and grant another writ,"-citing 2 Inst. 396. [CROWDER, J.-Can you have a new inquisition upon the old writ? CRESSWELL, J.-Why not, as well as upon a writ of inquiry?] The rule was granted in the alternative, to show cause why the finding of the jury upon the inquisition *taken upon the said *571] writ should not be set aside and a new inquisition be taken thereupon, or why the said writ of elegit and the inquisition thereon should not be set aside, and the plaintiff be at liberty to issue a new writ of elegit against the lands of the said Thomas Mayhew."

Hawkins now showed cause.-It cannot be denied that there was evidence upon which the jury might, and perhaps ought, to have found that Mr. Mayhew had lands in the county which might be extended under the elegit. But it is submitted that this rule was wholly unnecessary, inasmuch as the plaintiff might have issued another elegit: Archbold's Practice, 11th edit., by Prentice, 634, 635.(a) [CRESSWELL, J.

(a) In Archbold's Practice, 633, it is said: "Proof of possession of the land by the defendant, or receipt of rent by him in respect of the same, is primâ facie evidence of his title to it. As the proceeding is an ex parte one, and the inquisition not conclusive on the defendant, it is in general sufficient to give slight evidence of the defendant's title." "The inquisition must find

-Into the same county?] Yes. [CRESSWELL, J.-Without the leave of the court?] Yes. [CRESSWELL, J.-If he may have a new elegit without leave, does he make it worse by asking leave? WILLES, J.— It may be convenient to the plaintiff to have a declaration of the court that there was evidence upon the former occasion upon which the jury should have found that Mr. Mayhew had lands. COCKBURN, C. J.— If the court are satisfied that the verdict was wrong, I do not see why they should not say so.] At all events, *the plaintiff ought not [*572 to have the costs of the rule. [CRESSWELL, J.-Mr. Mayhew appeared by his attorney to oppose the plaintiff's proceedings on the inquisition. I do not see, therefore, why he should not be visited with costs.](a)

Byles, Serjt., and Couch, contrà, were stopped by the court.

COCKBURN, C. J.-The finding of the jury was altogether unwarrantable. The rule must, therefore, be made absolute.

WILLES, J.-The jury upon an inquisition under an elegit, have no right to go into the question of title. The return to the elegit does not conclude the matter. The jury were bound to find that Mr. Mayhew had lands, upon the primâ facie evidence produced before them. It may, however, be advisable for the plaintiff to take the rule in the second alternative.

Byles, Serjt. We have considered the matter, and prefer taking the first alternative. The writ has not been executed; that which has been done upon it going for nothing. We wish to set aside the inquisition only.

WILLES, J.-Then you must add to the rule, a direction to the sheriff to take a new inquisition.

The rest of the court concurring,

Rule absolute.(b)

the lands with certainty; the place and county where they lie, and where the inquisition is taken,-Raysing's Case, Dyer, 208; the estate the defendant has in them,-F. Moore, 8; whether seised in severalty, or as joint-tenant or tenant-in-common,-Heard v. Baskerfield, Hutton, 16, Brownl. 38; and their value,-Sparrow v. Mattersock, Cro. Car. 319."

(a) The rule did not ask for costs.

(b) The rule was drawn up as follows:-"It is ordered that the finding of the jury upon the inquisition taken upon the said writ of elegit be set aside, and that the sheriff of the county of Suffolk do proceed to take a new inquisition thereon."

N. S., VOL. I.-25