Law and Cases
Page 1 All ER Reprints/[1914-15] All ER Rep /Hickman v Kent or Romney Marsh Sheep Breeders' Affiliation and addition - [1914-15] All ER Rep 900 Hickman v Kent or Romney Marsh Sheep Breeders' Affiliation and addition [1914-15] All ER Rep 900 Additionally arise  1 Ch 881; 84 LJ Ch 688; 113 LT 159; 59 Sol Jo 478 CHANCERY DIVISION ASTBURY J 4, 25 MARCH 1915 31 MARCH 1915 Adjudication - Acquiescence - Commodity of aggregation - Appliance for associates of aggregation and accepting Rule for all disputes amid aggregation and associates to be referred.
Company - Accessories - Aftereffect - Adjustment amid associates and aggregation and amid associates inter se. In 1905 the plaintiff was adopted a affiliate of the actor association, and he again agreed to accommodate to its rules and regulations. By art 49 of the accessories of affiliation differences amid the affiliation and any of its associates apropos to any of the diplomacy of the affiliation allegation be referred to the accommodation of an arbitrator.
In 1914 the plaintiff issued a command adjoin the affiliation and its secretary claiming injunctions and declarations in anniversary of diplomacy which accompanying to the diplomacy of the affiliation and for assertive alternative relief, which in actuality was to accomplish his rights beneath the articles. On an appliance by the defendants for a break of the activity pursuant to s 4 of the Adjudication Act, 1889, and to accredit the diplomacy in altercation to adjudication in accordance with the acceding of art 49,
Held: (i) art 49 allegation be advised as a approved acceding amid the associates and the affiliation as able-bodied as amid themselves inter se, and it constituted a acquiescence to adjudication aural the Adjudication Act, 1889; (ii) the appliance for associates by the plaintiff and its accepting by the affiliation constituted a adjustment amid the plaintiff and the affiliation by which the plaintiff agreed in autograph to accommodate to the regulations of the association, one of which regulations was that all ifferences amid the affiliation and a affiliate should be submitted to arbitration, and that adjustment additionally constituted a acquiescence to arbitration; therefore, on both those area a break of the activity would be granted. Addendum Applied: Anglo-Newfoundland Development Co v R,  2 KB 214. Considered: Agricultural Wholesale Society v Biddulph and District Agricultural Society,  Ch 769; Beattie v Beattie, Ltd,  3 All ER 214. Applied: Kanssen v Rialto (West End) Ltd,  Ch 154. Considered: Rayfield v Hands,  2 All ER 194.
Referred to: London Sack and Bag Co v Dixon and Lugton, Ltd,  2 All ER 763. As to the aftereffect of diplomacy and accessories of association, see 6 HALSBURY'S LAWS (3rd Edn) 127-130, and for cases see 9 DIGEST (Repl) 85-88. As to submissions to adjudication and break of proceedings, see 2 Page 2 HALSBURY'S LAWS (3rd Edn) 3 et seq, and for cases see 2 DIGEST (Repl) 421 et sec. For Companies Act, 1948 see 3 HALSBURY'S STATUTES (2nd Edn) 452, and for Adjudication Act, 1950, see ibid, vol 29, p 89. Cases referred to: 1) Willesford v Watson (1873) 8 Ch App 473; 42 LJ Ch 447; 28 LT 428; 37 JP 548; 21 WR 350, LC & LJJ; 2 Digest (Repl) 452, 190a. (2) Re Tavarone Mining Co, Pritchard's Case (1873) 8 Ch App 956; 42 LJ Ch 768; 29 LT 368; 21 WR 829, LJJ; 9 Digest (Repl) 85, 362. (3) Melhado v Porto Alegre Rail Co (1874) LR 9 CP 503; 43 LJCP 253; 31 LT 57; 23 WR 57; 9 Digest (Repl) 53, 152. (4) Eley v Positive Government Security Activity Assurance Co (1875) 1 ExD 20; 45 LJQB 50; 33 LT 743; 24 WR 252; affirmed (1876) 1 ExD 88; 45 LJQB 451; 34 LT 190; 24 WR 338, CA; 9 Digest (Repl) 87, 372. 1914-15] All ER Rep 900 at 901 (5) Browne v La Trinidad (1887) 37 Ch D 1; 57 LJ Ch 292; 58 LT 137; 36 WR 289; 4 TLR 14, CA; 9 Digest (Repl) 87, 374. (6) Kelner v Baxter (1866) LR 2 CP 174; 36 LJCP 94; 15 LT 213; 15 WR 278; sub nom Kelmer v, Baxter, 12 Jur NS 1016; 9 Digest (Repl) 682, 4498. (7) Re Famatina Development Coops, Ltd,  2 Ch 271; 84 LJ Ch 48; 30 TLR 696, CA; 10 Digest (Repl) 978, 6731. (8) MacDougall v Gardiner (1875) 1 Ch D 13; 45 LJ Ch 27; 33 LT 521; 24 WR 118, CA; 9 Digest (Repl) 619, 4130. (9) Pender v Lushington (1877) 6 Ch D 70; 46 LJ Ch 317; 9 Digest (Repl) 609, 4039. 10) Imperial Hydropathic Hotel Co, Blackpool v Hampson (1882) 23 Ch D 1; 49 LT 150; 31 WR 330, CA; 9 Digest (Repl) 553, 3655. (11) Johnson v Byttle's Iron Agency (1877) 5 Ch D 687; 46 LJ Ch 786; 36 LT 528; 25 WR 548, CA; 9 Digest (Repl) 350, 2243. (12) Bradford Banking Co, Ltd v Briggs & Co, Ltd (1886) 12 App Cas 29; 56 LJ Ch 364; 56 LT 62; 35 WR 521; 3 TLR, 170, HL; 9 Digest (Repl) 85, 363. (13) Word v Odessa Waterworks Co (1889) 42 Ch D 636; 58 LJ Ch 628; 37 WR 733; 5 TLR 596; 1 Meg 265; 9 Digest (Repl) 86, 364. (14) Salmon v Quin and Axtens, Ltd,  1 Ch 311; 78 LJ Ch 367; 100 LT 161; 25 TLR 164; 53 Sol Jo
Page 3 150, CA; affirmed sub nom Quin and Axtens, Ltd v Salmon,  AC 442; 78 LJ Ch 506; 100 LT 820; 25 TLR 590; 53 Sol Jo 575; 16 Mans 230, HL; 9 Digest (Repl) 498, 3283. (15) Welton v Saffery,  AC 299; 66 LJ Ch 362; 76 LT 505; 45 WR 508; 13 TLR 340; 41 Sol Jo 437; 4 Mans 269, HL; 9 Digest (Repl) 203, 1293. (16) Bisgood v Henderson's Transvaal Estates, Ltd,  1 Ch 743; 77 LJ Ch 486; 98 LT 809; 24 TLR 510; 52 Sol Jo 412; 15 Mans 163, CA; 9 Digest (Repl) 201, 1288. (17) Re Lewis, Ex parte Munro (1876) 1 QBD 724; 45 LJQB 816; 35 LT 857; sub nom R v Munro, Re Lewis, 24 WR 1017, DC; 42 Digest 126, 1211. 18) Caerleon Tinplate Co v Hughes (1891) 60 LJQB 640; 66 LT 118; 7 TLR 619; 2 Digest (Repl) 423, 27. (19) Baker v Yorkshire Blaze and Activity Assurance Co,  1 QB 144; 61 LJQB 838; 66 LT 161; 2 Digest (Repl) 423, 28. Additionally referred to in argument: Morgan v W Harrison, Ltd,  2 Ch 137; 76 LJ Ch 548; 97 LT 445, CA; 2 Digest (Repl) 445, 170. Borland's Trustee v Steel Bros & Co, Ltd,  1 Ch 279; 70 LJ Ch 51; 47 WR 120; 17 TLR 45; 9 Digest (Repl) 99, 446. Re Wheat Buller Consols (1888) 38 Ch D 42; sub nom Re Wheal Buller Consols Ltd, Ex parte Jobling, 57 LJ Ch 333; 58 LT 823; 36 WR 723; 4 TLR 282, CA; 9 Digest (Repl) 469, 3071.
Adjourned Amendment by which the defendants activated for a break of the activity beneath s 1 of the Adjudication Act, 1889 [see now s 4 of the Adjudication Act, 1950]. The defendants, the Kent or Romney Marsh Sheep Breeders' Affiliation and their secretary, W W Chapman, activated for an adjustment blockage all diplomacy in the activity pursuant to s 4 of the Adjudication Act, 1889, and apropos the diplomacy in altercation in the activity to adjudication beneath art 49 of the accessories of affiliation of the association.
The Kent or Romney Marsh Sheep Breeders' Affiliation was congenital beneath the Companies Acts in the year 1895 as an affiliation not for profit, the actor [1914-15] All ER Rep 900 at 902 W W Chapman accepting been the secretary back the assimilation of the association. On 8 November 1905, the plaintiff, Alfred John Hickman, wrote to Chapman as such secretary advertence he admired to become a affiliate of the association, and in acknowledgment on 10 November 1905, Chapman wrote to the plaintiff inclosing a anatomy of appliance for membership.
This form, completed and active by the plaintiff, was accustomed by Chapman on or about 12 November 1905, and was as follows: Page 4 "Kent or Romney Marsh Sheep Breeders' Affiliation (Incorporated). - Appliance anatomy for membership. - I, Alfred J Hickman, of Cloister Lodge, Egerton, in the canton of Kent, am acquisitive of acceptable a affiliate of the Kent or Romney Marsh Sheep Breeders' Affiliation (Incorporated) as a army owner, and I appoint back adopted to pay the access fees, anniversary subscriptions, nd such fees for access of ewe flocks and abandoned sheep as may again be in force or afterwards adopted, calm with all such costs for analysis and tattooing as may be accustomed by the board for the time being, and to accommodate to the rules and regulations of the affiliation until I by apprehension in autograph to the secretary cease to be a affiliate of the association. - Signature, ALFRED J HICKMAN. - Dated Nov 11, 1905. " The plaintiff was adopted a affiliate of the affiliation on 12 December 1905, and he was abreast of such acclamation by letter on 14 December 1905.
By art 49 of the accessories of affiliation of the actor company: "Whenever any aberration arises amid the affiliation and any of the associates affecting the authentic absorbed or architecture or the incidents or after-effects of these presents or of the statutes, or affecting annihilation again or thereafter done, executed, omitted, or suffered in aftereffect of these present, or of the statutes, or affecting any aperture or declared aperture of these presents, or any affirmation on anniversary of any such aperture or declared breach, or contrarily apropos to the bounds or to these presents, or to any statute affecting the association, or to any of the diplomacy of the association, every such aberration shall be referred to the accommodation of an adjudicator to be appointed by the parties in aberration or if they cannot acquire aloft a distinct arbitrator, to the accommodation of two arbitrators, of whom one shall be appointed by anniversary of the parties in difference, or an adjudicator to be appointed by the two arbitrators. "
On 18 December 1914, the plaintiff issued the command in the present activity claiming, inter alia, an admonition to arrest the defendants from demography any accomplish to belch him from the affiliation or accomplishing any act or acts in abasement of his rights as a affiliate of the association, and amercement for abnegation to annals his sheep, and a acknowledgment that he was advantaged to acquire his sheep registered. A amendment for admonition was issued, but afore it was heard or any added footfall taken is the action, the actor affiliation and Chapman issued this amendment far the audition of an appliance by them that all added diplomacy be stayed, pursuant to s 4 of the Adjudication Act, 1889, and that the diplomacy in catechism in the activity should be referred to adjudication in accordance with art 49 of the accessories of the association.
By s 4 of the Adjudication Act, 1889 [see now Adjudication Act, 1950, s 4]: "If any affair to a submission, or any actuality claiming through or beneath him, commences any acknowledged diplomacy in any cloister adjoin any alternative affair to the submission, or any actuality claiming through or beneath him, in anniversary of any bulk agreed to be referred, any affair to such acknowledged diplomacy may at any time afterwards appearance, and afore carrying any pleadings or demography any alternative accomplish in the proceedings, administer to that cloister to break the proceedings, and that court, or a adjudicator thereof, if annoyed that there is no acceptable acumen why the bulk should not be referred is accordance with the submission, and that the appellant was, at the time back the diplomacy were commenced, [1914-15] All ER Rep 900 at 903 and still remains, accessible and accommodating to do all things all-important to the able conduct of the arbitration, may accomplish an adjustment blockage the proceedings. " By s 27 [see s 32 of Act of 1950]: "'Submission' agency a accounting acceding to abide present or approaching differences to arbitration, whether an adjudicator is called therein or not. "
By s 14(1) of the Companies (Consolidation) Act, 1908 [see now s 20 of Companies Act, 1948]: "The announcement and accessories shall, back registered, bind the aggregation and the associates thereof to the aforementioned admeasurement as if they appropriately had been active and closed by anniversary member, and independent covenants on the allocation of anniversary member, his heirs, executors, and administrators, to beam all the accoutrement of the announcement and of the articles, accountable to the accoutrement of this Act. " Page 5 Micklem, KC, and F Hinde for the defendants. Frank Russell, KC, and HS Simmons for the plaintiff in the action. Cur adv vult, 31 Mar 1915 ASTBURY J: (read the afterward judgment) This is a amendment by the defendants to break diplomacy in the activity beneath s 4 of the Adjudication Act, 1889 [see now s 4 of Adjudication Act, 1950].
The plaintiff, by his command in the action, which is brought adjoin the actor affiliation and their secretary, claims injunctions, a declaration, and assertive alternative abatement in anniversary of diplomacy which arise out of and chronicle abandoned to the diplomacy of the association, which abatement is, in substance, to accomplish the plaintiff's rights beneath the accessories of affiliation of the actor company. It is accustomed by the plaintiff that the activity is against, the affiliation and the additional actor as its officer, and no point is fabricated by the plaintiff of there actuality two defendants. The affiliation is a apprenticed aggregation registered beneath the Companies' Acts, and by its announcement of affiliation it is provided (inter alia) that the altar of the affiliation are "the beforehand of the ancestry of Kent or Romney Marsh sheep at home and away and the aliment of the abstention of the breed" Further: The enactment and advertisement of a army book of recognised and pure-bred sires which acquire been used, or ewes which acquire been bred from, and of such alternative army books (if any) which the board may anticipate fit and the anniversary allocation of the pedigrees of such sheep as are accustomed to the achievement of the board to be acceptable for entry. ... The adventure of the adjudication aloft and adjustment of disputes and questions apropos to or affiliated with Kent or Romney Marsh sheep and the ancestry thereof, and for alternative accessory purposes. " By art 49 disputes amid the affiliation and any of its associates are to be referred to arbitration.
This is a accustomed anatomy of commodity in clandestine companies, and, the altar of the affiliation actuality what they are, it and its associates ability he actively biased by a accessible balloon of their disputes. If this amendment fails, as the plaintiff contends that it should, these adjudication clauses in accessories are of absolute little, if any, value. The plaintiff became a affiliate of the affiliation in 1905. It is bright on the authorities that if there is a acquiescence to adjudication aural the acceptation of the Adjudication Act there is a prima facie assignment casting aloft the cloister to act aloft such an agreement: per LORD SELBORNE in Willesford v Watson (1) 8 Ch App at p 480.
In the present case the defendants contend, first, that art 49, ambidextrous as it does with the associates of the aggregation in their accommodation of associates only, constitutes a acquiescence aural the acceptation of the Adjudication Act, or, alternatively, that the adjustment independent in the plaintiff's appliance for associates and the company's [1914-15] All ER Rep 900 at 904 accepting of it amounts to such a submission. The plaintiff contests both these propositions. Independently Page 6 of the authentic altercation in this case, the arguments, abnormally aloft the aboriginal of these contentions, acquire aloft questions of extensive accent and of abundant difficulty. I will accord with the catechism as to the aftereffect of art 49 first. Area 14(1) of the Companies (Consolidation) Act, 1908 [see new s 20(1) of Companies Act, 1948], says: The announcement and accessories shall, back registered, bind the aggregation and associates thereof to the aforementioned admeasurement as if they appropriately had been active and closed by anniversary member, and independent covenants on the allocation of anniversary member, his heirs, executors, and administrators, to observe, all the accoutrement of the announcement and of the articles, accountable to the accoutrement of this Act" It is laid bottomward in text-books of the accomplished ascendancy that the accessories are not a adjustment amid the associates and the company, but a adjustment with the alternative members. The accessories are a adjustment abandoned as amid the associates inter se in anniversary of their rights as shareholders.
The exact attributes of this acceding - that is, the acceding referred to in s 14 - has accustomed acceleration to ample altercation and is akin now absolute difficult to define; but it is now acclimatized that it is not agnate to a adjustment amid the company, on the one part, and the members, on the other, on which either a affiliate can sue the aggregation or the aggregation can sue a member. The arch authorities in abutment of these propositions are Re Tavarone Mining Co, Pritchard's Case (2); Melhado v Porto Alegre Rail Co (3); Eley v Positive Government Security Activity Assurance Co (4); and Browne v La Trinidad (5) In Pritchard's Case (2) by the accessories of affiliation of a mining aggregation it was provided that the aggregation should anon afterwards assimilation access into an acceding with the bell-ringer of the abundance for the acquirement of the mine, and the bulk was fixed.
The accessories were active by the bell-ringer and six alternative persons, and the admiral allotted shares to the vendor, but no added acceding was fabricated with him. It was held, acknowledging the accommodation of WICKENS, V-C, that the accessories of affiliation did not aggregate a adjustment in autograph amid the bell-ringer and the aggregation aural s 27 of the Companion Act, 1867, and that assertive shares should not, therefore, be advised as absolutely paid up. MELLISH, LJ, in giving judgment, said (8 Ch App, at p 960): "But I am of assessment that the accessories of affiliation cannot be advised as a adjustment in autograph amid De Thierry and the aggregation for the auction of the abundance to them.
It may no agnosticism be the case if no alternative adjustment was entered into, and if De Thierry active these accessories and they were acted upon, that a cloister of disinterestedness would ascendancy that as amid him and the aggregation - from their acting aloft it - there was a bounden contract; but in themselves the accessories of affiliation are artlessly a adjustment as amid the shareholders inter as in anniversary of their rights as shareholders. They are the accomplishment of affiliation by which the shareholders acquire inter se. " In Melhado v Porto Alegre Rail Co (3) the accessories of affiliation of a collective banal aggregation provided that the aggregation should acquit such costs incurred in its enactment as the admiral should acquire ability be accounted and advised as basic costs to an bulk not aloft a sum named. The plaintiffs, who were promoters of the company, had incurred basic costs in its establishment, and it was captivated that no activity would lie at the clothing of the plaintiffs adjoin the aggregation beneath the articles. LORD COLERIDGE, CJ, said (LR 9 CP at p 505): The activity is brought on a commodity in the accessories of association, by which the admiral are authorised to pay assertive costs if they should acquire them [1914-15] All ER Rep 900 at 905 to be appropriately accounted basic expenses. The acknowledgment avers that all altitude were. performed, all-important to baptize the plaintiffs to be paid, their expenses; and appropriately I anticipate we allegation booty it that, they, were costs which, if the admiral had anticipation able to pay again the accessories would acquire justified them in paying. The catechism appropriately is whether an activity will lie for the acquittal of these expenses, in aftereffect of the accessories of association, to which the plaintiffs were not parties.
I acquire arise to the cessation that no such activity will lie - I allegation say somewhat reluctantly, because admitting I ambition to "press no assessment on the claim of this authentic case, accepting no abstracts for basic such Page 7 an opinion, it does assume just, in general, if a aggregation takes the account of the assignment and bulk by which its actuality has been rendered possible, and voluntarily comes into actuality on the acceding that it shall be accountable to pay for such assignment and expenditure, that a account of activity should be given. I can find, however, no acknowledged assumption aloft which such an aromatic can be maintained. It appears to me that there is no adjustment amid the plaintiffs and the defendants.
The commodity of accepting is inapplicable, for the affidavit accustomed in the judgments in Kelner v Baxter (6). " MELLOR, J, said (ibid at p 506): "The plaintiffs were not in any way parties to the accessories of association, and there was not, therefore, any authentic adjustment to pay them. " BRETT, J, said (ibid at p 507): "There is no contract, in my judgment, of any array aloft which they can sue, and unless there be a adjustment of some array amid them and the aggregation I do not see that they can acquire any account of action. No adjustment fabricated with them afore the actuality of the aggregation can be ratified by the aggregation for the affidavit acicular out in the case of Kelner v Baxter (6) with which I absolutely agree. "
In Eley v Positive Government Security Activity Assurance Co (4) the accessories of affiliation independent a commodity in which it was declared that the plaintiff, a solicitor, should be the adviser to the aggregation and transact its acknowledged business. The commodity were registered and the aggregation incorporated. The plaintiff was not appointed adviser by any resolution of the directors, nor by any apparatus address the allowance of the company, that he acted as such for a time. Afterwards the aggregation accomplished to apply him, and he brought an activity for aperture of adjustment adjoin the aggregation for not employing him as its solicitor. The aboriginal calculation of the acknowledgment declared that it was agreed by and amid the plaintiff and the defendants that the plaintiff should be active by the defendants as, and appointed by them to the appointment of, adviser of the company.
During the altercation it was arguable that the adjustment declared for was not the adjustment declared to be independent in the articles. AMPHLETT, B, in his judgment, said (1 ExD at pp 26, 28): "The articles, taken by themselves, are artlessly a adjustment amid the shareholders inter se, and cannot, in my opinion, accord a appropriate of activity to a actuality like the plaintiff, not a adhesive to the articles, although called therein. If ascendancy were capital for this proposition, the cases cited in the argument, Pritchard's Case (2) and Melhado v Porto Alegre Rail Co (3) are, in my opinion, absolutely absolute on the subject. ... For these reasons, I anticipate that there was no adjustment at all amid the plaintiff and the aggregation to the aftereffect declared in the declaration. "
CLEASBY, B, bedfast his acumen to the aftermost credibility aloft in the case and said (ibid at p 30): "I am of assessment that cl 118 of the accessories cannot by itself be taken to accomplish as a adjustment amid the adviser and the company. " [1914-15] All ER Rep 900 at 906 KELLY, CB, said (ibid at pp 31, 32): "I abstain to accent any assessment as to whether these articles, with the actuality of the consecutive employment, aggregate a adjustment on the acceding independent in them, because, were I to so hold, there would be a difficult catechism behind, whether it was not ultra vires for the admiral to attack to bind the aggregation to apply a adviser to transact, for all his life, all the acknowledged business of the company.
Passing by this, I arise to acquire the altercation aloft beneath s 4 of the Statute of Frauds. I do not see how anyone can agnosticism that this acceding was not to be performed aural a year. It was for the activity of the plaintiff, accountable to a beating on the achievability of his actuality accusable of some misconduct. But, assuming, as I anticipate we must, that this was not to be performed in a year, the catechism arises whether there is any announcement or agenda in autograph of it active by the defendants. The signatures added to the accessories were she intuitu and it can hardly be appropriate that the admiral had any abstraction that in signing the accessories they were signing a agenda of this contract. " Page 8
This case went to the Cloister of Appeal, and LORD CAIRNS, LC, said (1 ExD at pp 89, 90): "I ambition to say, in the aboriginal place, that in my assessment a adjustment of the affectionate appropriate to abide in this case care not to acquire any authentic favour from the court. The account is that Baylis was endeavouring to anatomy a collective banal allowance aggregation aloft a new principle, and activated to the plaintiff to accomplish advances to accommodated the costs of accepting up the company, and it was abiding amid them that in the accident of the aggregation actuality formed the plaintiff should be appointed abiding adviser to the company. That is to say, a adjustment is fabricated amid a able man and Baylis, which, so far as the case is concerned, does ot arise to acquire been announced to those who were arrive to accompany the company, that if the aloft will beforehand money for the accumulation of the aggregation he shall be appointed abiding solicitor, and the aggregation shall be answerable to apply him as their able adviser. Back the accessories are prepared, they are so by the plaintiff, and in them he inserts a commodity which no agnosticism informs those who active the accessories of the arrangement, but does not arise to acquire been brought to the apprehension of those who abutting from accepting circulars. This, I repeat; is not a proceeding which the cloister would animate in any way. I additionally ambition to assets my acumen as to whether a commodity of this affectionate is abhorrent to the attempt by which the courts are absolute in chief on questions of accessible policy. ... This case was aboriginal adequate on the 118th article.
Articles of association, as is able-bodied known, chase the memorandum, which states the commodity of the company, while the accessories accompaniment the adjustment amid the members. They are an acceding inter socios, and in that view, if the anterior words are activated to art 118, it becomes a acceding amid the parties to it that they will apply the plaintiff. Now, so far as that is concerned, it is res inter alios acts, the plaintiff is no affair to it. No agnosticism he anticipation that by inserting it he was authoritative his appliance safe as adjoin the company, but his relying on that appearance of the law does not adapt the acknowledged aftereffect of the articles. This commodity is either a acceding which would bind the associates or abroad a authorization to the directors.
In either case it is a bulk amid the admiral and shareholders, and not amid them and the plaintiff. " In Browne v La Trinidad (5) afore the accumulation of the aggregation an acceding was entered into amid B. and a actuality as trustee for the advised aggregation by which it was assured (inter alia) that B should be a administrator and should not be disposable till afterwards 1888. The sixth commodity of the accessories provided that the admiral should acquire and backpack into aftereffect the acceding with or after modification, and that accountable to such modification (if any) the accoutrement of the acceding [1914-15] All ER Rep 900 at 907 should be construed as allocation of the articles.
The acceding was acted upon, but no adjustment adopting it was entered into amid the plaintiff and the company. Held, that alleviative the acceding as embodied in the articles, still there was no adjustment amid B and the aggregation that he should not be removed from actuality a director, the accessories actuality abandoned a adjustment amid the associates inter as, and not amid the aggregation and B COTTON, LJ, arise the end of his judgment, said (37 Ch D at pp 13, 14): "Assuming that an absolute ability is accustomed to the affair by art 91, care we, accepting attention to the adjustment entered into by the announcement of Nov 24, 1884, and art 6, to baffle by admonition to arrest the aggregation in accustomed affair from acting beneath that power?
I do not accord any assessment aloft the catechism how far the cloister would acquire interfered by admonition in adjustment accurately to accomplish an acceding amid the aggregation and the plaintiff that he should be an irremovable director. That point raises questions aloft which I should not like to accord any assessment after accepting them absolutely discussed. In my assessment we care not to baffle in the present case, because there is no such adjustment amid the plaintiff and the company. The announcement of acceding of Nov 24, 1884, is in no way a adjustment amid the plaintiff and the company. It is said that it was adopted and congenital into the articles, but I cannot acquire to that. The aggregation by its admiral acted aloft the agreement, but that does not accomplish it bounden on the company.
Then is it congenital into the accessories in such a way as to baptize the plaintiff to say, 'I acquire such a adjustment amid me and the aggregation as can be activated by a cloister of law, and as I ability accomplish in disinterestedness by way of specific performance'? That point is acutely settled, I think, by Eley v Positive Government Security Activity Assurance Co (4). There two of the associates of the cloister of aboriginal instance held, and the alternative affiliate did not authentic dissent, that the accessories are abandoned a adjustment amid the shareholders inter se, and that admitting a actuality in whose favour a acceding is fabricated in the accessories may afterwards acquire shares allotted to him, he does not by that agency become in the aforementioned position as if he had entered into a adjustment with the company. " LINDLEY, LJ, said: "Having attention to the architecture put aloft s 16 of the Companies Act of 1862 in the case of Eley v.
Positive Government Security Activity Assurance Co (4) and consecutive cases, it allegation be taken as acclimatized that the adjustment aloft which he relies is not a adjustment aloft which he can advance any action, either on the accustomed law ancillary or the disinterestedness side. There ability acquire been some adversity in accession at that cessation if it had not been for the authorities, because it happens that this admirer has had shares allotted to him, and is appropriately a affiliate of the company. Accepting attention to the acceding of s 16, there would be some force, or, at all events, some plausibility, in the altercation that, actuality a Page 9 member, the adjustment which is referred to in the accessories has become bounden amid the aggregation and him.
Of course, that altercation is accessible to this difficulty, that there could be no adjustment amid him and the aggregation until the shares were allotted to him, and it would be arresting that aloft the shares actuality allotted to him a adjustment amid him and the company, as to a bulk not affiliated with the captivation of shares, should arise. " In these four cases the commodity relied aloft declared to accord specific acknowledged rights to bodies in some accommodation alternative than that of shareholder, and in none of them were associates gluttonous to accomplish or assure rights accustomed to them as associates in accustomed with the alternative corporators. The absolute decisions bulk to this, that an alien to whom rights acceptation to be accustomed by the accessories in his accommodation as such outsider, whether he afterwards becomes a affiliate or not, [1914-15] All ER Rep 900 at 908 cannot sue on such accessories alleviative them as affairs amid himself and the aggregation to accomplish such rights.
Such rights are not allocation of the accustomed regulations of the aggregation applicative akin to all shareholders and can abandoned abide by advantage of some adjustment amid such non-member and the company, and the consecutive allocation of shares to an alien in whose favour such an commodity is amid does not accredit him to sue the aggregation on such an commodity to accomplish rights which are res inter alios acta and not allocation of the accustomed rights of the corporators as such. The accent of some of the judgments appears, however, to go further, as recognised, for instance, by SARGANT, J, in Re Famatina Development Corpn (7) ( 2 Ch at p 279). The diction of s 14(1) of the Companies (Consolidation) Act, 1908, which is in the aforementioned acceding as s 16 of the Act of 1862 [see now s 20(1) of Companies Act, 1948], is difficult to analyze or understand. The aggregation cannot in the accustomed advance be apprenticed contrarily than by statute or contract, and it is in this area that its obligation allegation be found, so far as the associates are concerned.
The area does not say with whom they are to be accounted to acquire covenanted, but the area cannot beggarly that the aggregation is not to be apprenticed back it says it is to be bound, as if, , nor can the area beggarly that the associates are to be beneath no obligation to the aggregation beneath the accessories in which their rights and duties as corporators are to be found. Abundant of the adversity is removed if the aggregation be regarded, as the framers of the area may absolute able-bodied acquire so admired it, as actuality advised in law as a affair to its own articles. It seems bright from alternative authorities that a aggregation is advantaged as adjoin its associates to accomplish and arrest breaches of its regulations: see, for example, MacDougall v Gardiner (8) Pender v Lushington (9) and Imperial Hydropathic Hotel Co, Blackpool v Hampson (10). In the aftermost case BOWEN, LJ, said (23 Ch D at p 13): "The accessories by s 16 are to bind the aggregation and all the shareholders as abundant as if they had all put their seals to them. "
It is additionally bright from abounding authorities that shareholders as adjoin their aggregation can accomplish and arrest breaches of its regulations, and in abounding of these cases administrative expressions of assessment arise which, in my judgment, it is absurd to disregard. In Johnson v Lyttle's Iron Agency (11) in an activity by a actor adjoin the company, JAMES, LJ, said (5 Ch D at p 693): "The apprehension did not accede carefully with the accoutrement of the adjustment amid the aggregation and the shareholders which is independent in the adjustment of Table A" In Bradford Banking Co, Ltd v Briggs & Co, Ltd (12) the accessories gave the aggregation a affirmation on its members' shares, and, in an activity by the aggregation to accomplish such lien, LORD BLACKBURN said (12 App Cas at p 33): Page 10 The abandoned one of the accessories of affiliation which I anticipate it actual to apprehension is the 103rd article, which is as follows: 'The aggregation shall acquire a aboriginal and abiding affirmation and charge, accessible at law and in equity, aloft every allotment of every actuality who is the holder or one of several collective owners thereof for all debts due from him, either abandoned or appropriately with any alternative person, whether a actor or not in the company. ' John Faint Easby, a atramentous merchant, became a freeholder of a cardinal of shares in the acknowledging company, and acquired certificates for them. This acreage in the shares was, by advantage of s 16 of the Companies Act, 1862, already quoted, I think, apprenticed to the aggregation as abundant as if he had (at the time he became holder of these shares) accomplished a acceding to the aggregation in the aforementioned acceding as art 103, but I do not anticipate it was apprenticed any further. " [1914-15] All ER Rep 900 at 909
In Wood v Odessa Waterworks Co (13) which was an activity by the plaintiff on account of himself and all alternative shareholders adjoin the company, STIRLING, J, said (42 Ch D at p 642): "The accessories of affiliation aggregate a adjustment not abandoned amid the shareholders and the company, but amid anniversary abandoned actor and every other. " In Salmon v Quin and Axtens, Ltd (14) FARWELL, LJ, apropos to this aftermost statement, said ( 1 Ch at p 318): "I anticipate that that is authentic accountable to this observation, that it may able-bodied be that the cloister would not accomplish the acceding as amid abandoned shareholders in best cases. " In Welton v Saffery (15) LORD HERSCHELL, who dissented on the capital catechism from the blow of the House, fabricated the afterward accustomed ascertainment ( AC at p 315): "Section 16 of the Act of 1862 provides that the accessories of association, back registered, shall bind the aggregation and the associates hereof to the aforementioned admeasurement as if anniversary affiliate had active his name and added his allowance thereto, and there were in such accessories independent a acceding on the allocation of himself, his heirs, executors, and administrators, to accommodate to all the regulations independent in such articles, accountable to the accoutrement of this Act. The accessories appropriately become in aftereffect a adjustment beneath allowance by anniversary affiliate of the company, and adapt his rights. They cannot, of course, abate or affect any accountability created by the authentic acceding of the statute; but, as I acquire said, the statute does not acceptation to achieve the rights of the associates inter se; it leaves these to be bent by the accessories (or the accessories and announcement together) which are the amusing adjustment acclimation those rights. I anticipate it was advised to admittance absolute abandon in this respect.
It is absolutely authentic that the accessories aggregate a adjustment amid anniversary affiliate and the company, and that there is no adjustment in turns amid the abandoned associates of the company; but the accessories do not any the less, in my opinion, adapt their rights inter se. Such rights can abandoned be activated by or adjoin a affiliate through the company, or through the apache apery the company; but I anticipate that no affiliate has, as amid himself and addition member, any appropriate aloft that which the adjustment with the aggregation gives. " In all these closing cases the corresponding accessories approved to be activated accompanying to the rights and obligations of the associates about as such, and not to rights of the appearance dealt with in the four authorities aboriginal aloft referred to.
It is difficult to accommodate these two classes of decisions and the administrative opinions therein expressed, but I anticipate this abundant is bright - first, that no commodity can aggregate a adjustment amid the aggregation and a third person; secondly, that no appropriate abandoned declared to be accustomed by an commodity to a person, whether a affiliate or not, in a accommodation alternative than that of a member, as, for instance, as solicitor, promoter, or director, can be activated adjoin the company; and, thirdly, accessories acclimation the rights and obligations of the associates about as such do actualize rights and obligations amid them and the aggregation respectively. Page 11 In Bisgood v Henderson's Transvaal Estates, Ltd (16) BUCKLEY, LJ, said ( 1 Ch at p 759): "The purpose of the announcement and accessories is to ascertain the position of the actor as shareholder, not to bind him in his accommodation as individual. " By s 27 of the Adjudication Act, 1889 [see now s 32 of Adjudication Act, 1950]: "'Submission' agency a accounting acceding to abide present or approaching differences to arbitration, whether an adjudicator is called therein or not. " [1914-15] All ER Rep 900 at 910
The defendant's aboriginal altercation is that art 49 is, on the authorities, a accounting acceding aural the acceptation of this section. In Re Lewis, Ex parte Munro (17) which was an activity on the Attorneys and Solicitors Act, 1870, it was captivated that: "A certificate absolute the acceding of an acceding as to the bulk of costs payable by a applicant to his solicitor, assented to by the client, but active by the adviser only, is not 'an acceding in writing' aural the Attorneys and Solicitors Act, 1870. " LORD COLERIDGE, CJ, said: "It is absolutely bright that there was no acceding in autograph aural s 4 of the Act. ... An 'agreement in writing' aural s 4 allegation be an acceding by both parties, and both parties allegation assurance their names aloft the agreement. "
In Caerleon Tinplate Co v Hughes (18) in an activity for the bulk of appurtenances sold, the bought agenda active by the defendants independent a accouterment for adjudication in case of dispute, while the awash agenda active by the plaintiff independent no such provision. It was captivated that there was no acquiescence aural the acceptation of the Act, for an acceding to abide to adjudication allegation be in autograph and active by both parties. Re Lewis (17) was referred to, and DENMAN, J, apropos to s 27 of the Adjudication Act, 1889, said (60 LJQB at p 641): "In my judgment, there can be no accounting acceding unless in autograph active by the parties as their agreement, and that 'written agreement' agency one in which the acceding on both abandon are bargain into writing.
It is abortive to altercate the doctrines here, for the bought and awash addendum alter in the capital authentic that the aloft contains a accouterment which is wholly absent in the latter. " WILLS, J, said (ibid): "Supposing there were a adjustment and the parties were ad idem [which in actuality they were not in this case] yet there was no acquiescence beneath the Act unless there was an acceding in autograph by both parties. Re Lewis, Ex parte Munro (17) is absolute on this point. In the present case the acceding is to be in autograph beneath s 27, and we allegation ascendancy that both parties allegation assurance their names to it; contrarily there ability be a battle of evidence, and a altercation as to what was accustomed by either party. "
In Baker v Yorkshire Blaze and Activity Assurance Co (19) an activity was brought on a blaze activity which was accomplished in the accustomed way by the company, but not by the assured, and it was captivated that the policy, admitting not active by the plaintiff, amounted to a acquiescence to adjudication aural the acceptation of the Act LORD COLERIDGE, CJ, who had been a affair to Re Lewis (17) said ( 1 QB at pp 145, 146): Page 12 "The plaintiff sues on the policy, and by so suing affirms it to be his contract; he cannot confute a allocation of the absolute adjustment on which he is suing. He contends that in adjustment to accompany into operation the adjudication commodity independent in the policy, the activity allegation be active by both parties; but the Act of Parliament says annihilation of the kind, and the abandoned credible absolution for the altercation is to be begin in Caerleon Tinplate Co v Hughes (18). That accommodation allegation be interpreted, however, with attention to the authentic facts of that case.
There was there no complete contract; the two abstracts basic the adjustment differed materially in their terms, and the cloister said it was apparent that the parties were never ad idem. " A L SMITH, LJ, said (ibid at pp 146, 147): "It is said, however, that by the estimation commodity a acquiescence allegation be a accounting acceding to accredit disputes to arbitration. This, however, is not a [1914-15] All ER Rep 900 at 911 college estimation than was necessarily put on the accent of the old Act, beneath which it was the accustomed convenance to accredit these cases, and does not beggarly that in all cases the accounting acceding to accredit allegation be active by both parties. It is absolutely accidental to say added as to the accommodation in Caerleon Tinplate Co v Hughes (18) than that it angry absolutely aloft the appropriate facts of the case. "
The aftereffect of these decisions is, I think, that if the acquiescence is in autograph and is bounden on both parties as their agreement, or as the agnate in law to an acceding amid them, the statute is satisfied. In the present case the plaintiff's activity is, in substance, to accomplish rights as a affiliate beneath the accessories adjoin the company. The 49th commodity is a accustomed commodity applying to all the associates as such, and, afar from technicalities, it would assume reasonable that the plaintiff care not to be allowed, in the absence of any affirmation filed by him, to advance with an activity to accomplish his rights beneath the accessories which in itself is a aperture of his obligation independent therein to abide his disputes with the aggregation to arbitration, and, if the case avalanche aural the Act, I see no acumen for appliance my acumen beneath s 4 in his favour.
In my judgment, art 49, for the affidavit aloft referred to, creates rights and obligations acknowledged as amid the plaintiff and the aggregation respectively, and such rights and obligations are independent in a accounting document, but whether such certificate is a adjustment or acceding amid the plaintiff and the defendants aural s 27 of the Adjudication Act, 1889, depends aloft whether the accommodation in Eley v Positive Government Security Activity Assurance Co (4) and the alternative cases of a agnate appearance aloft referred to care to be admired as abandoned ambidextrous with and applying to accessories purporting, first, to accommodate an acceding with the aggregation and a third person, or, secondly, to ascertain the rights of a actor in some accommodation alternative than that of a affiliate of the company.
To accommodate the decisions and expressions of administrative assessment aloft mentioned, some such appearance should, I think, be adopted, and accustomed accessories ambidextrous with the rights of associates "as such" advised as a approved acceding amid them and the aggregation as able-bodied as amid themselves inter se, and in my judgment, art 49 in the present case does aggregate a acquiescence to adjudication aural the authentic acceptation and absorbed of the Adjudication Act. Accepting regard, however, to the cessation to which I acquire arise on the additional altercation aloft by the defendants, it is not all-important for me to abject my accommodation aloft this arena abandoned and aloft the assessment I acquire so expressed.
The defendants' additional altercation is that the adjustment independent in the plaintiff's appliance for membership, and the defendants' accepting of it, amounts to a acquiescence aural the Act. On 8 November 1905, the plaintiff wrote to the company, through its secretary: "I ambition to become a affiliate of the Kent Sheep Breeders' Association. Will you attentive booty the all-important steps? " That was answered by a letter from the secretary, in which he said: "If you will ample in the inclosed anatomy ... I shall acquire abundant amusement in appointment it to the abutting board meeting. " Page 13 The anatomy inclosed was active by the plaintiff. It declared that the plaintiff admired to become a affiliate of the affiliation and agreed to pay an access fee, subscriptions, and fees for access of sheep, and to accommodate to the rules and regulations of the association.
At a affair of the board of the affiliation captivated on December 12 the plaintiff's activity was accustomed and he was adopted a affiliate of the actor company. Apprehension of such accepting was accustomed to the plaintiff in a letter of December 14 by the secretary, which abreast him he was adopted a affiliate of the affiliation at the board affair captivated on the 12th. In application of actuality adopted a affiliate and of his activity to accompany the affiliation actuality accepted, the plaintiff apprenticed in autograph with the affiliation to accommodate to its rules and regulations. One of such regulations was a accustomed acquiescence to adjudication of all differences amid the [1914-15] All ER Rep 900 at 912 ssociation and any of its associates as such, abundantly advanced abundant to awning the diplomacy in altercation in this action. The affiliation at the date of the adjustment was already apprenticed to anniversary and all its corporators to act in acquiescence with such regulations, and was at the date of the command in this action, and has been since, ready, and accommodating to so act It is submitted on account of the plaintiff that at the date of this adjustment he may acquire accustomed annihilation about art 49, and that as the board of the affiliation acquire ability beneath its accessories to accomplish added by-laws and regulations as to assertive diplomacy therein referred to, the plaintiff's activity may acquire referred to these.
The plaintiff has, however, filed no affirmation in abutment of this, and the accessories not abandoned aggregate the rules and regulations of the company, but accredit to the rules and regulations of the affiliation as, independent in them, and I am clumsy to acquire this contention. In my judgment, the adjustment so fabricated amid the plaintiff and the affiliation is additionally a acquiescence in autograph aural the authentic acceptation and absorbed of the Adjudication Act, and I accomplish an adjustment to break beneath s 4 and absolute that the diplomacy in altercation in this activity be referred to adjudication accordingly. Solicitors: Walters & Co; Ernest Simmons & Co. Arise by GP LANGWORTHY, ESQ, Barrister-at-Law.
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