Hone v O'Flahertie

• Jurisdiction: Ireland
• Judgment Date: 14 April 1859
• Date: 14 April 1859
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

HONE

and

O'FLAHERTIE.

Burton v. Hunter 1 Hud. & Br. 569.

Glowes v. BrettellENR 10 M. & W. 506.

Wingfield v. BartonUNK 2 Dowl., N. S., 355.

Hitchins v. Kilkenny Railway Co.ENR 10 C. B. 160.

Stewart v. GravesENR 10 M. & W. 11.

Barker v. ButtressENR 7 Beav. 134.

Davison v. FarmerENR 6 Exch. 242.

Ness v. AngasENR 3 Exch. 805.

Ness v. ArmstrongENR 4 Exch. 21.

O'Flahertie v. M'Dowell 6 H. L. Cas. 142.

Colman v. Sarrel 1 Ves. jun. 50.

Harris v. Royal British Bank 2 H. & Nor. 535.

Simpson v. Lord Howden 3 M. & Cr. 97.

Gray v. Mathias 5 Ves. 286.

Rooke v. Lord Kensington 2 K. & Jo. 753.

Jackson v. TurnleyENR 1 Drew. 617.

Watton's EstateENR 23 Beav. 480.

Colman v. Sarrel 1 Ves. jun. 50.

Ware v. Horwood 14 Ves. 28.

Jackman v. Mitchell 13 Ves. 581.

Bromley v. Holland 7 Ves. 3.

Byne v. Vivian 5 Ves. 604.

Hayward v. Dimsdale 17 Ves. 111.

Corporation of Colchester v. Lowton 1 Ves. & B. 226.

Taylor v. HughesENRUNK 2 Jo. & Lat. 24; S. C., 7 Ir. Eq. Rep. 529.

Jordan v. S. E. Railway Company 6 De G., M'N. & Gor. 270.

Powys v. ButlerENR 4 C. B., N. S., 469.

Bristow v. Whitmore 4 K. & Jo. 743.

CHANCERY REPORTS. 497 1859. Ch. Appeal. Court of iaf peal in ellanterp. HONE v. O'FLAHERTIE. April 13, 14. This was a re-bearing, by way of appeal from the decision of the A, being a shareholder in LORD CHANCELLOR, reported ante, p. 119. The facts of the case a Joint-stock Banking ComÂÂare there stated. pany, by deed, bearing date tohaetnb2erl.stwof Mr. Brewster, Mr. Rogers and Mr. Exham, for the petitioner. and registered the in The respondent relies upon the terms of the 17th section of the the Company, pany, of Banking Act, 6 G. 4, c. 42, which provides that judgments obtained hasissignsedhare.awsay against the public officer shall take effect against the property of the The name of the assignee co-partners, and every member of the partnership ; but the Courts was entered as shareholder in have decided over and over again, on similar words, that no individual the books of the Company ; member of such a Company can be charged with a judgment against and A's name was omitted in the public officer until the shareholder has been made a party to the the return of shareholders to record by scire facias : Burton v. Hunter (a); Glowes v. Brettell (b); the Stamp-Wingfield v. Barton (c) ; Hitching v. Kilkenny Railway Co. (d); 2 Wins. Saund., 72 t, N. S. This is but common justice, for the nserteed wthasereiinn. alleged shareholder may have many defences ; and it would be most A creditor, having obtain- unreasonable that all his property should be tied up until the validity ed a judgment against the of the claim against him had been decided on. From the language official mana ger of the of the statute of 12 & 13 Vic., c. 29, s. 6, it is evidently intended that Company, re gistered an the person whose estate is to be charged with the debt should be a affidavit to charge A's person named in, and conclusively bound by, the judgment. lands, stating and g It is also well settled that there is no remedy against a share- judgment, At n A sihar7e; holder in such a Company, saving by a proceeding under the statute: : hwoalsci e rai n and that no transfer of his shares appeared to have been subsequently registered at the Stamp-office, but omitting any mention of the actual transfer; no scire facias was issued against A.-Held, that a Court of Equity ought to give relief against such regisÂÂtration, as being a mere cloud on A's title. (a) 1 Hud. & Br. 569. (c) 2 Dowl., N. S., 35.5. VOL. 9 (6) 10 M. & W. 506. (d) IOC. B. 160. 63 498 CHANCERY REPORTS. 1859. Stewart v. Graves (a); Barker v. Buttress (b); Davison v. Far Ch. Appeal. mer (e); and by the statute and deed of settlement alone the rights HONE V. and liabilities of shareholders are regulated : Ness v. Angas (d); O'FLA HERTIE. Ness v. Armstrong (e) ; and Lord St. Leonards, in his judgment in Argument. O'Flahertie v. MDowell (f, lays down the same law. Then, if the registration of this affidavit be clearly invalid to charge Mr. Hone's property, the Court will order it to be vacated, or the estate alleged to bd conveyed by it re-conveyed ; it forms a mere cloud on the title, embarrassing the petitioner without benefiting the respondent : nor is it any answer to say that the petitioner could successfully defend an ejectment, nor that the Court of Law could remove the affidavit from its files; for that would not affect the copy lodged in the Registry-office. Even if the Court had not jurisdiction on other grounds, the suppression in the affidavit, of the fact of the petitioner having transferred his shares, is such a fraud as would furnish grounds for relief. Mr. Lawson and Mr. William Smith, for the respondent. There is no jurisdiction in the Court to interfere in this case; it is a mere question of Law, to be decided between the petitioner and respondent in a Court of Law. We are advised that we had a right to register this judgment, which is to charge the members of the co-partnership and their property, although execution on it might not be sued out without a scire facias ; and, if we are wrong, we shall be defeated in the ejectment proceedings now actually pending, and there will be an end of the question. Colman v. Sarrel (g) shows the proper course to be taken. A bill to remove what is called " a cloud on the title" lies only for relief against an instrument which both parties must admit to be void, and has never been allowed in a case where one side claims a right which can be legitimately determined by the decision of another Court. (a) 10 M. & W. 11. (h) 7 Beay. 134. (c) 6 Exch. 242. (d) 3 Exch. 805. (e) 4 Exch. 21. (f) 6 H. L. Ca& 142. (g) 1 Ves. jun. 50. CHANCERY REPORTS. 499 If our proceedings at Law be so wholly void as they allege, , 1859. . Appeal. the :Court of Law will give them redress at once, by ordering Chi HONE the affidavit to be taken off the file Barris v. Royal British v. O'FLARERTIE. Bank (a). This Court never interferes where the defect in the security Argument. impeached appears on the face of it, as is the case here : Simpson v. Lord Bowden (b); Gray v. Mathias (c).---[The LORD JUSTICE OF APPEAL. This case differs from all that you have referred to, in this respect, that the act complained of has been done behind the back of the person affected by it ; he has not, as in the cases mentioned, been himself a party to the creation of the embarrassÂÂment; besides, the affidavit does not state all the facts.]-It was wholly unnecessary to state the alleged transfer which the provisions of the statute rendered manifestly void, stating it would merely have added needlessly to the length of the affidavit. They referred to Rooke v. Lord Kensington (d); Jackson v. Turnley (e); Watton's Estate (f). The cases in 2 Swanst., p. 157, n. b ; Colman v. Sarrel (g); Ware v. Horwood (h); Jackman v. Mitchell (i); Bromley v. Holland (k); Byne v. Vivian (1); HayÂÂward v. Dimsdale (m) ; Corporation of Colchester v. Lowton (n); Taylor v. Hughes (o); Jordan v. S. E. Railway Company (p); Powys v. Butler (q); Bristow v. Whitmore (r), were also mentioned and commented on during the argument. The LORD CHANCELLOR. April 14. In this case we are all of opinion that the decree of the Court. Judgment. below is right, and ought to be affirmed. Upon the construction of (a) 2 H. & Nor. 535. (c) 5 Ves. 286. (e) 1 Drew. 617. (g) 1 Ves. jun. 50. (1) 13 Ves. 581. (1) 5 Ves. 604. (b) 3 M. & Cr. 97. (d) 2 K. & Jo. 753. (f) 23 Beay. 480. (h) 14 Ves. 28. (k) 7 yes. 3. (m) 17 Veg. 111. (n) 1 Ves. & B. 226. (o) 2 Jo. & Lat. 24 ; S. C., 7. Ir. Eq. Rep. 529...