1840. HIBBLEWHITE

v.

M'MORINE.

time had notice: and then, to wit, on the said 1st day of Exch. of Pleas, March in the year aforesaid, he the plaintiff offered the defendant to execute to the defendant, or any nominee or nominees of the defendant, a legal transfer of the said shares, on payment by the defendant for the said shares according to the said agreement, &c.: but the defendant did not nor would, then or at any time before the said time of reselling the same thereinafter mentioned, accept and pay for the said shares, but altogether refused so to do; whereupon the plaintiff, after the said 1st day of March, and after such refusal and nonpayment by the defendant, to wit, on the 6th day of March in the year aforesaid, resold the said shares, and upon such resale there was a deficiency and loss to the plaintiff of 2561. 6s., of which the defendant afterwards, to wit, on &c., had notice, &c. &c. [alleging nonpayment of that sum]. There was also a count on an account stated.

Pleas-first, non assumpsit; secondly, (as to the first count), that the plaintiff was not ready and willing to transfer and deliver the said fifty shares to the defendant, if the defendant would have paid for the same, nor did the plaintiff offer to the defendant to execute to the defendant, or any nominee or nominees of the defendant, a legal transfer of the said shares, on such payment as in the said first count in that behalf mentioned, in manner and form, &c.; thirdly, that at the time of making the supposed agreement in that count mentioned, or at any time between that day and the said 1st day of March, the plaintiff was not the proprietor of the said fifty shares in that count mentioned, or of any of them, nor had he good right or title to execute a legal transfer of such shares, or of any of them, according to the said agreement in that behalf; concluding with a verification; fourthly, as to the breach in the first count lastly mentioned, that the plaintiff did not resell the said shares or any part of them, in manner and form, &c.; and fifthly, as to the same breach, that

1840.

Exch. of Pleas, upon the supposed resale there was not a deficiency and loss, in manner and form as in that count alleged. There HIBBLEWHITE was a sixth plea, which was disposed of on demurrer (a).

บ.

M'MORINE.

The plaintiff joined issue on all the above pleas but the third, and to that replied, that on the 1st of March, the plaintiff was the proprietor of the said shares, and then had good right and title to execute a legal transfer thereof: on which also issue was joined.

At the trial before Gurney, B., at the Middlesex Sittings after Trinity Term, 1839, the following appeared to be the facts of the case.

On the 10th of September, 1838, the plaintiff and a Mr. Sheldon each sold to the defendant, through their broker, Mr. John Golding, fifty shares in the London and Brighton Railway. The defendant signed the following written contract :

"Mr. Hibblewhite,

Liverpool, 10th Sept. 1838.

Sir, I have this day purchased from you fifty shares in the Brighton Railway Company, to be transferred, delivered, and paid for on or before the 1st day of March, 1839, or at any intermediate date that I may require them, by paying you for the said shares at par per share, together with all calls that may have been paid on the same you hereby binding yourself, your heirs, executors, and assigns, to execute to me, or to my nominee or nominees, a legal transfer of the said shares, for which I am to make payment to you on or before the 1st day of March, 1839. It is understood and agreed, that I shall be entitled to all new shares that may accrue or be appropriated to the holder of the said fifty shares. It is also agreed, if the payment be not made on the 1st day of March, 1839, that you reserve full power to resell the said fifty shares at any cost and risk, claiming from me any deficiency, or accounting to me for any surplus, that may arise from the resale of them.-I am, &c.

GEORGE M'MORINE."

"Witness, J. FOUND.

(a) 5 M. & W. 462.

v.

M'MORINE.

At the time of entering into this contract, the plaintiff Exch. of Pleas, 1840. was not himself the proprietor of any shares; but on the 12th September he went into the market, and purchased, HIBBLEWHITE through a sharebroker, 100 shares, at 12s. 6d. discount, to be delivered to him on the 15th of December following. On that day the plaintiff received 100 certificates for shares, in the form given by the act of Parliament, 1 Vict. c. cxix, s. 140, in the name of Richard Williams Pritchard, numbered from 31.625 to 31.734, together with three transfers from Pritchard, with blanks left for the purchaser's name, the consideration, and the date; one for forty shares, Nos. from 31.625 to 31.674 inclusive; another for forty, from 31.675 to 31.714; and the third for twenty, from 31.715 to 31.734 inclusive. The following is a copy of one of these transfers :

"London and Brighton Railway Company.

"I, Richard Williams Pritchard, of Liverpool, in consideration of the sum of

,

paid to me by

do hereby assign

twenty fifty

pound shares, numbered 31.715 to 31.734 both inclusive, of and in the undertaking called the London and Brighton Railway, to hold unto the said

executors, administrators, and assigns, subject to the several conditions on which I held the same immediately before the execution hereof; and I, the said

do hereby agree to accept and take the said shares, subject to the conditions aforesaid. As witness our hands and seals this

day of

in the

year of our Lord, one thousand eight hundred and thirty.

Signed, sealed, and delivered by the said R. W. Pritchard, in the presence of

"RICHARD COBB, 1, Dale-street.

Exch. of Pleas, 1840.

v.

M'MORINE.

Between the date of the agreement and the 1st of March following, two calls of £3 each became due, which were not HIBBLEWHITE paid by the plaintiff; but evidence was given of a verbal agreement on the part of the defendant, that the plaintiff should not be required to pay up the intermediate calls, but that he the defendant would prefer taking the shares at their price before payment of those calls. On the 1st March, transfers executed by Pritchard, as above set forth, were produced by the plaintiff's broker to the defendant, and he offered to fill up the blanks for the name of the transferee, with the name of the defendant or his nominee, on the defendant's paying the agreed price. The defendant, however, refused to accept the shares; whereupon they were resold by the plaintiff at the then market price, and the present action was brought to recover the sum of 2561. 2s. 6d. and interest, being the difference between that and the price at par per share.

For the defendant it was objected, first, that the plaintiff was not entitled to recover, inasmuch as he was incapable on the 1st of March of making a good conveyance of the shares to the defendant, Pritchard being then the proprietor of them, and not the plaintiff; secondly, that the conveyance was invalid by the 157th section of the act of Parliament, the calls due before the 1st of March not having been previously paid; and thirdly, that the conveyance tendered to the defendant was void at common law, the name of the transferee not having been inserted in it at the time of its execution by Pritchard. On all or some of these grounds it was insisted that the defendant was entitled to a verdict on the second and third issues. The learned Judge overruled the objections, and a verdict was taken for the plaintiff for the amount claimed.

In Michaelmas Term, Alexander obtained a rule nisi for a new trial, on the grounds above mentioned; against which, in the same term,

Cresswell and Cowling shewed cause (a). [The argu- Exch. of Pleas, ments on the two first points are omitted, as the judgment

1840. HIBBLEWHITE

บ.

M'MORINE.