inasmuch as the induction of the vicar or perpetual curate after he has been admitted must of necessity in operation of law have put him in possession of the churchyard, thereby putting him in full possession of the pasture, for all intents and purposes, it follows that the vicar or perpetual curate was put in full possession. To that extent the consequence would follow; then it seems to me that the rector or perpetual curate is necessarily put in possession for the purpose of his sacred office, and I do not think there is anything whatever to say that he shall be put into possession for the purpose of making a profit, such as by taking in sheep, or mowing the pasture of the churchyard as soon as it is profitable. I cannot see that there is any law or authority for saying that. That would be quite another matter. As I have already said, in the case of vicarages the presumption would be from general usage and practice, if there was no proof to the contrary, that the right to the vesture of the churchyard was part of the vicar's endowment, but in the case of a perpetual curate I do not think that it would necessarily be so.

Q. B.] In the Matter of the BAHIA AND SAN FRANCISCO RAILWAY COMPANY (LIMITED). [Q. B. sumption of consecrated ground, it remained in | it, and I do not think that I misunderstood it, that the rector if the vicar had it not. I see nothing whatever in that inconsistent with the vicar having possession of the church and churchyard so far as was right and necessary for the purpose of performing the sacred duties to be performed there. In the case of a perpetual curate the matter was different, as there, owing to the rectory having come into the possession of the monastery in such a way that they were not under the obligation imposed by the statute to appoint a vicar, the monastery appointed simply a curate who had no endowment whatever, and no possession further than the possession which would necessarily follow from the fact that he would have to perform certain duties, and must, consequently, have possession to a certain extent. No doubt possession he should have in one sense, because it is necessary that the curate should enter and be able to keep other people out, for the purpose of doing his duty, and to that extent the perpetual curate had the possession before the Reformation. After the Reformation, when the living came into the hands of the lay impropriator, the curate he appointed was a curate whom he was obliged, as the living was in his hands, to provide. He was obliged to provide somebody; he provided a curate, and the ordinary would not change that curate. Therefore, the curate became, to a certain extent, perpetual. I do not see anything in that which would give the perpetual curate possession of the churchyard, which is Mr. Manisty's argument, more than the former curate. It seems to me that he must have possession to the extent to which it is necessary for the performance of his sacred duties; but I do not see why the curate should have possession for the purpose of taking such profits as do arise from the land connected with its use as agricultural land more than anybody else. In fact, the lay rector does not appear in this particular case, as indeed will be found in almost all cases where there is a lay rector, to have enjoyed those rights, so far as they are rights of property arising from the pasturage of the churchyard. The curate would, no doubt, be in possession of the churchyard for ecclesiastical purposes of burial, and the like. That being so, this perpetual curate having thus got possession for the purpose of performing

ecclesiastical duties, does the fact that he has received an augmentation from Queen Anne's Bounty alter his position? It certainly seems to me that it does not. There might have been an enactment made that, so far as any endowment was given to the perpetual curate from Queen Anne's Bounty, the effect of that should be to take away part of the vested lay property in the lay rector, and give it to the perpetual curate. That would have been a strong enactment, and I do not think it would have been a right one for the Legislature to sanction. Such an enactment, however, might have been made if the Legislature had so pleased. But when I look at the statute of George I. which is relied upon, it says nothing of the sort. It simply says that when the commissioners of Queen Anne's

HANNEN, J.-I am of the same opinion. For the
reasons that have been given, I think that the statute
With
of George I. does not apply to the case.
regard to the more general question, we are at
liberty to draw inferences of fact. It is found that
the lay impropriator, so far as living memory goes
back, has been in the enjoyment of the right which
he now asserts. It lies, therefore, upon the plaintiff
to show that this right so enjoyed could not have a
legal origin. It has undoubtedly been asserted, with
great earnestness, that this is the state of things,
that it could not have a legal origin. No authority
has been cited in support of that proposition, but it
has been assumed that it must necessarily follow
from establishing that the perpetual curate has a
right to the possession of the churchyard. If it is
to be taken that the word "possession" means ex-
clusive possession, or the right to exclude all other
persons, of course there is an end of the question;
but I can see no more reason why the possession of
the perpetual curate for a purpose which may be
necessary for the exercise of his ministration
should exclude the right of the lay impropriator
than the possession of the perpetual curate should
exclude the right of persons having rights of way
across the churchyard. It lies, as I have said, on
the plaintiff to establish the impossibility of its
having a legal origin. It appears to me that it may
have a legal origin in the manner in which it has
been suggested by Lindwood in the case of rectors
and vicars. For these reasons, I think that our
judgment should be for the defendant.

Attorneys for the plaintiffs, Few and Co.
Attorneys for the defendant, Surr and Gribble.

Friday, May 29.

Bounty confer an endowment on the perpetual In the Matter of the BAHIA AND SAN FRANCISCO

curate, the perpetual curate who gets that augmentation is ipso facto, a removable curate no longer, but a person who has an interest in his curacy, no longer precarious and dependent on the will of the rector. The curate is made a body corporate, and a careful provision is put in that the lay incumbent of the rectory should not be benefited at all by the augmentation from Queen Anne's Bounty-all very proper and very good provisions, but none of them in the slightest degree saying that the rights of property in the lay rector should be taken from him and given to the perpetual curate. Mr. Manisty's argument was this, if I understood

RAILWAY COMPANY (LIMITED), AND OF AMELIE
TRITTON, RICHARD BURTON, AND MARY ANNE
GOODBURN.

Company-Register-Certificate of Shares-" Regis-
tered holder"-Negligence-Liability of companny for
forged transfer-The Companies Act 1862 (25 & 26
Vict. c. 89).

Certain shares in a railway company belonging to A. were, by means of a transfer forged by her broker, without her knowledge. transferred to B. & C., and the transfer registered by the company, who gave to B. and C. a certificate that they were “the registered

Q. B.] In the Matter of the BAHIA AND SAN FRANCISCO RAILWAY COMPANY (LIMITED.) [Q. B.

Q. B.] In the Matter of the BAHIA AND SAN FRANCISCO RAILWAY COMPANY (LIMITED.) [Q. B.

| Company, or in other words the Million Bank Com-
pany or Blackwell, are to sustain the loss occasioned
by this forged transfer of the plaintiff's stock; and
nothwithstanding the authorities cited, I am of
opinion that the company must sustain the loss...
The letter of attorney is no part of the title, but an
authority to transfer. A trustee, whether a private
person or body corporate, must see to the reality of
the authority empowering them to dispose of the
trust money; for if the transfer is made without the
authority of the owner, the act is a nullity, and in
consideration of law and equity the rights remain as
before
Against Mr. Blackwell, the rule
caveat emptor is alleged, and that he ought to have
inquired into the reality of the authority, and this
objection is founded on the case of Hildyard v
South Sea Company, and the reasons of that case.
But my judgment differs both from the one and the
other, both from the decision and reasoning. I
think it was not incumbent on Blackwell to inquire
into the letter of attorney, because I think the letter
of attorney in this and similar cases, is no part of
the purchaser's title. The title is the admission
into the company as a partner pro tanto, he accept-
ing the stock on the conditions of the partnership."
This reasoning applies a fortiori, to the circum-
stances of the present case. "On the other hand,"
Lord Northington continues (p. 303) "they (the
company) must and ought to answer for their
and their servant's negligence. And it will
be no public detriment if my decree tends to
make the directors of public companies to
attend to the business of those companies, and
teaches them not to leave the important transac-
tions of millions to undirected elerks and book-
keepers, with illiberal salaries, and who therefore
dare not look a broker in the face." There are, no
doubt, observations in that case as to the existence
of actual negligence on the part of the company;
but there is evidence of similar negligence here
All that was done by way of precaution, as is
stated in the third paragraph of the case, is that
the secretary of the company sent by post to the last
place of residence of Miss Tritton a written notice
that the deed of transfer to Stocken and Goldner
had been received by him, and after ten days,
having received no answer, Miss Tritton's name
was removed, and the deed of transfer registered.
The precaution was not sufficient, Miss Tritton
being abroad at the time. In Davis v. The Bank
of England, 2 Bing. 393, a case in which stock
had been placed under a forged power of attorney,
to the name of another person than the proper
owner, Best, C. J. says, p. 403, "In many, if not
all the loan Acts the mode of transferring stock is
prescribed by the following words: 'There shall be
kept in the office of the accomptant in London,
books wherein transfers of stock shall be entered,
which entries shall be signed by the parties making
such transfers, or by their attorneys authorised by
writing under their hand and seal, and attested by
two witnesses; and the persons to whom such
transfers are made shall underwrite their acceptance,
and no other method of transferring stock shall be
good.' The assignment by the stock broker and the
acceptance by the assignees complete the transfer.
The bank have no part in this transaction; they
are only to see that it is properly registered
in their books. In the present case the assign-
ment by the stockholder is wanting, the persons
who made the assignment having no authority
from the stockholder. The bank book should
contain a perfect transfer, and I admit that
even copies of these books are primâ facie evidence
in a court of justice, that such a transfer has been
duly made
If a stockbroker is permitted
to show that a transfer, purporting to be made by
himself, is not his writing, he must be permitted to

of its members, and there shall be entered therein
the following particulars: (1) The names and
addresses, and the occupations, if any, of the
members of the company, with the addition, in the
case of a company having a capital divided into
shares, of a statement of the shares held by each
member, distinguishing each share by its number,
and of the amount paid, or agreed to be considered
as paid, on the shares of each member; (2) The
date at which the name of any person was entered
in the register as a member; (3) The date at
which any person ceased to be a member. And any
company acting in contravention of this section
shall incur a penalty not exceeding five pounds for
every day during which its default in complying
with the provisions of this section continues, and
every director or manager of the company who
shall knowingly and wilfully authorise or permit
such contravention shall incur the like penalty."
And sect. 31 provides that "a certificate under the
common seal of the company, specifying any share
or shares or stock held by any member of a com-
pany, shall be primâ facie evidence of the title of
the members to the share or shares or stock therein
specified." Sect. 32 provides for the inspection of
the register by any member gratis, and by any
other person on the payment of one shilling, or such
less sum as the company may prescribe, for each
inspection; so that the company are paid for
keeping this register of members. Sect. 35
(supra) gives a remedy for any improper entry
or omission of entry in the register; and sect. 37
enacts that "the register of members shall be primâ
facie evidence of any matter by this Act directed or
authorised to be inserted therein." Only Nos. 25 and
26 of the company's articles of association are mate-
rial to notice: No. 25 provides that the board shall
determine the mode and conditions of, and the
charges for the transfers of shares, but no such
charge shall exceed 2s. 6d. for every transferor
named in the instrument of transfer; and no such
transfer not valid according to the law of England
shall be binding on the company. By No. 26 every
shareholder shall, on payment of such sum not ex-
ceeding 2s. 6d., as the directors prescribe, be entitled
to a certificate under the common seal of the com-
pany, and under the hands of two of the directors,
specifying the share or shares held by him, and the
amount paid-up in respect thereof,"&c. The effect of
the form of transfer when registered is to bind the
transferee to all the articles of association. Sect. 16
provides that "the articles of association shall
when registered, bind the company and the members
thereof to the same extent as if each member
had subscribed his name and affixed his seal thereto;
and there were in such articles contained a covenant
on the part of himself, his heirs, executors, and
administrators, to conform to all the regulations
contained in such article, subject to the provisions
of this Act; and all moneys payable by any member
to the company, in pursuance of the conditions and
regulations of the company, or of any such condi-
tions or regulations, shall be deemed to be a debt
due from such member to the company, and in
England and Ireland to be in the nature of
a specialty debt." It is submitted, on the ground
of the various provisions cited, that there is
a statutory duty cast on the railway com-
pany to keep the register, and to keep it cor-
rectly; and that whether actual negligence be
proved or not, negligence in law will be imputed to
them for any error that may exist therein. In
Ashby v. Blackwell, 2 Eden 299, it was held that a
joint-stock company, which permitted a transfer of
stock under a forged letter of attorney, should bear
the loss, and not the fair purchaser. Lord Northing-
ton, C. says (p. 301-2) "The question for me to de-
termine is, whether the trustees of the Million Bank |

for that purpose, which shall show every transfer and assignment which is made by parties appearing to be interested in the stock in question. They are made, if I may use the expression, the Parliamentary bookkeepers of this fund; and it is a duty which they owe the persons who may be interested in the fund so to keep the account as that it may distinctly appear at all times what transfers and assignments have been made. And my opinion is, that if at any time there had been stock standing in the name of A., and afterwards that stock did not appear (no matter from what cause) to be standing in his name, A. would, primâ fucie, have a given day."" The doctrine laid down in the preceding cases was extended to the case of a railway company in The Midland Railway Company v. Taylor, 8 H. of L. Cas. 751. (2.) In the next place I contend that the railway company having by a forged instrument been induced to admit Stocken and Goldner into partnership with them, and having not only admitted them into partnership, but issued certificates of shares, in consequence of which Stocken and Goldner were enabled to sell to the present claimants, and the company having thereupon registered them, it is too late now to deny the partnership. The company is estopped from doing so. [COCKBURN, C. J.-I cannot help thinking that the true ground of the company's liability, if they are liable, is that they enable the transferees under the forged transfer to hold themselves out as the true owners.] In Ward v. South-Eastern Railway Company, 2 El. & El. 823, Crompton, J. says, during the argument, "Did not the defendants, by registering the stock in the name of Ann Watson, widow, in effect make a representation that there was such a person, and that she was the proprietor, such that a reasonable man would believe that it was meant that he should act upon it; and are they not, therefore, within the principle laid down in Freeman v. Cooke, 2 Ex. 654, estopped from denying the truth of that representation as against the plaintiffs, who have altered their position by acting upon it as true?" The judgment, however, in that case proceeded on a different ground.

Q. B.] In the Matter of the BAHIA AND SAN FRANCISCO RAILWAY COMPANY (LIMITED). [Q. B. show that when a transfer is made by attorney, the | pretended attorney had no authority, the power under which he claimed to act being a forgery. We are not called on to decide whether the bank, the parties who presented the forged power of attorney, or the parties who accepted the stocks under the transfer, are to endure the loss. We know that funds will not be issued from the Exchequer to pay the dividends on the stock in the plaintiff's name and the same stock in other persons' names. We feel that these circumstances may occasion difficulty and embarrassment to the bank. We think, however, that the bank should be subjected to such difficulty and embarrassment, rather than the stock-right to say, 'Let the account stand as it did on a holder should suffer injustice. It is the duty of the bank to prevent the entry of a transfer until they are satisfied that the person who claims to be allowed to make it is duly authorised to do so. They may take reasonable time to make inquiries, and require proof that the signature to a power of attorney is the writing of the person whose signature it purports to be. It is the bank, therefore, and not the stockholder, who is to suffer if, for want of inquiring (and it does not appear that any inquiry was made in this case), they are imposed upon, and allow a transfer to be entered in their books, made without a proper authority." These observations apply strictly to the present case. Further on, p. 407, Best, C. J. adds: We are not called on to decide whether those who purchase the stock transferred to them under the forged powers might require the bank to confirm that purchase to them, and to pay them the dividends on such stocks, or whether their neglect to inquire into the authenticity of the power of attorney might not throw the loss on them that has been occasioned by the forgeries. But to prevent as far as we can the alarm which an argument urged on behalf of the bank is likely to excite, we will say that the bank cannot refuse to pay the dividends to subsequent purchasers of these stocks. If the bank should say to such subsequent purchasers, the persons of whom you bought were not legally possessed of the stocks they sold you, the answer would be, the bank, in the books which the law requires them to keep, and for the keeping which they receive a remuneration from the public, have registered these persons as the owners of these stocks, and the bank cannot be permitted to say that such persons were not the owners. If this be not the law, who will purchase stock, or who can be certain that the stock which he holds belongs to him? It has ever been an object of the Legislature to give facility to the transfer of shares in the public funds. This facility of transfer is one of the advantages belong-contract is completed that recourse is had to the ing to this species of property, and this advantage would be entirely destroyed if a purchaser should be required to look to the regularity of the transfers to all the various persons through whom such stock had passed... You cannot look further, nor is it the practice ever to attempt to look further than the bank books for the title of the person who proposes to transfer to you." Davis v. The Bank of England was reversed in error (5 B. & Cr. 185), but only on a technical point. Lord Denman, C. J. in Coles v. The Bank of England, 10 Ad. & El. 449, says of it, "That case was reversed in error on the form of two of the counts; but the general doctrine does not appear to have been impeached." Davis v. The Bank of England was also recognised in the later case of Sloman v. The Bank of England, 14 Sim. 486, in which case Shadwell, V. C. observes, "The 10th section of the Act provides that books shall be kept by the bank in which the names of the proprietors of the new stock shall appear. Then the 13th section, as I understand it, has made it the duty of the Governor and Company of the Bank of England to keep an account in books to be provided

Watkin Williams (with whom was Cohen) for the company.-Where shares in a company like the present are purchased in the market, the contract is complete and binding between the broker and the purchaser without reference to any specific or individual shares; and the completion of the contract is entirely antecedent to and independent of any act on the part of the company. It is not until the office of the company to get the transfer registered. If the company is to be held liable in the present case, it must be either on the ground of a breach of contract between them and the claimant or a breach of some duty on their part. There is no contract between the claimant and the company. Then as to a breach of duty. It is stated in the case, that everything was done by the company in accordance with the usual course of business, and there was nothing in the circumstances, so far as they were known to the company, to excite their suspicion or to induce them to depart from such usual course of business. The duty of the company is simply to keep an actual register of the shareholders; there is nothing to impose on them a liability to keep it in a condition of absolute correctness. [COCKBURN, J.-There is no evidence in the present case that the claimant consulted the register at all. BLACKBURN, J.-It must not be taken for granted that the duty of the company is simply to keep a register.] East Gloucestershire Railway Company v. Bartholomew, L. Rep. 3 Ex. 15, referred to. [BLACKBURN, J.-That case hardly

Q. B.] In the Matter of the BAHIA AND SAN FRANCISCO RAILWAY COMPANY (LIMITED.) [Q. B. bears on the present question.] As to the argu- to have the effect of estopping the party, must be ment grounded on estoppel, the comqany are only neglect of some duty cast upon the person who is estopped from denying what they have stated, and all guilty of it.' And this I apprehend is a true that the certificate states is that the person to whom and sound principle. A person who does not lock it is given is the holder of a certain number of up his goods, which are consequently stolen, may shares. [COCKBURN, C. J.-If what is sought to be be said to be negligent as regards himself, but indone were to compel the company to treat the asmuch as he neglects no duty which the law casts transfer as a valid transfer, the case would upon him, he is not in consequence estopped from be different from what it is; but what the denying the title of those who may have, however company have done is to enable another by an innocently, purchased those goods from the thief untrue certificate given him to dispose of these unless it be in market overt." In Freeman v. Cooke, shares in the market as his own.] The certi- 2 Ex. 663, Parke, B. says that to make an estoppel ficate merely amounts to a receipt that the person it is essential, "if not that the party represents holding it has paid for the shares and got them; that to be true which he knows to be untrue, at and it is binding only between him and the railway least, that he means his representation to be acted company. [BLACKBURN, J.-But the Act of Par- upon, and that it is acted upon accordingly; and liament makes that prima facie evidence of the if, whatever a man's real intention be, he so confact.] That is between him and the company. ducts himself that a reasonable man would take [BLACKBURN, J.-No; between him and all the the representation to be true, and believe that it world.] Where the company have been guilty of was meant that he should act upon it, and did no negligence, they are not to be held responsible act upon it as true, the party making the misreprefor any loss that may occur. The case of Ashby v. sentation would be equally precluded from conBlackwell, 2 Ed. 299, proceeded on the ground of testing its truth, and conduct, by negligence or gross negligence on the part of the company, the omission, where there is a duty cast upon a person power of attorney being witnessed by two waiters by usage of trade or otherwise, to disclose the at a coffee-house, instead of by two householders, truth, may often have the same effect." [BLACKas the Act of Parliament required. In Hildyard v. BURN, J.-That really brings the matter to the South Sea Company and Keate, 2 P. Wms. 75, where simple question whether the statement contained in stock was transferred by virtue of a forged letter of the certificate is not one which a reasonable man attorney, the order made by the court was to take would understand as amounting to an assertion on back the stock from the assignee and give it to the the part of the company that the holder was the right owner, and it was said that "as to the com- real owner of the shares mentioned in it.] In Hildpany, they were but instruments and conduit pipes." yard v. South Sea Company and Keate, the defendant The proper remedy for a sub-vendee like the present Keate and not the company was ordered to pay is an action against his vendor. The purchaser was back the dividend which he had wrongfully not misled into the contract by the company. received. [BLACKBURN, J.-In that case Keate [LUSH, J.-The question depends on this, whether was the first transferee.] If the company are held the certificate given by the company means simply, liable in the present case, it will follow that they "we (the company) certify that A. B. is on the list could not free themselves from liability even on of shareholders," or whether it does not rather mean, discovery of the fraud before registration, if any "we certify that A. B. is in reality a shareholder of one had parted with his money on the production to the company."] The certificate, it is submitted, him of the certificate. [LUSH, J.-That would be amounts merely to an assertion that the person so if the certificate is interpreted to mean that the named in it is on the list of shareholders. If it were holder is the real owner of the shares mentioned optional with the company to give or withhold the in it.] certificate it might be said they were estopped by it, but they have no choice in the matter, being bound to keep the register and to give the certificate.[BLACKBURN, J.-But they are not bound to put a person on the register who is not rightly entitled to be put cnit.] In Swan v. North British Australasian Company, 2 H. & C. 188, Cockburn, C. J. says on the subject of estoppel, "To bring a case within the principle established by the decisions in Pickard v Sears and Freeman v. Cooke, it is in my opinion essentially necessary that the representation or conduct complained of, whether active or passive in its character, should have been intended to bring about the result whereby loss has arisen to the other party, or his position has been altered. Here nothing can have been further from the intention of the plaintiff than that the deed signed by him should be used for the purpose of transferring these shares, or that the name of another person should be substituted for his on the register." And in the same case Blackburn, J. observes, p. 181, “Now I agree that a party may be precluded from denying against another the existence of a particular state of things, but then I think it must be by conduct on the part of that party such as to come within the limits so carefully laid down by Parke, B. in delivering the judgment of the Court of Exchequer in Freeman v. Cooke. It is pointed out by Parke, B. in the course of the argument in that case, that in the majority of cases in which an estoppel exists, the party must have induced the other so to alter his position that the former would be responsible to him in an action for it;' and he had before pointed out that negligence,'

COCKBURN, C.J.-I am of opinion that in this case our judgment must be for the plaintiff. I look upon the case when the facts are rightly understood as falling clearly within the principle of Pickard v. Sears and Freeman v. Cooke. The company are bound by the Act of Parliament to keep a register. They have the power of giving certificates stating that the shareholders of the company are registered shareholders. Those certificates are given to each individual shareholder, and the purpose or object of such certificate is manifest, it is to give additional facility to shareholders of the company to transfer and deal with their shares without the difficulties that would attach if upon every occasion the title of the individual proposing to sell or transfer the share was to be clearly made out. It is an advantage to the shareholders, and gives them an additional facility in transferring their shares, making the shares, as it were, more negotiable in the market, and giving them an additional value. It is a thing, therefore, done for the benefit of the public in general. What it amounts to is this, it is a declaration to the world, that the person to whom the certificate is given, and in whose name it is made out, is a registered shareholder of the company, and it is done for the purpose which I have already adverted to, namely, to satisfy all who may enter into dealings with him with reference to the shares, that he is the registered shareholder of the company; and it is intended by the company that it should be used for that purpose, and acted upon in the sale and transfer of the shares in the market.