THIS was an appeal from the decision of Vice-Chancellor Wood, reported in Messrs. Johnson & Hemming's Reports (a), rejecting a proof tendered under the order for winding up the Saxon Life Assurance Company, on behalf of the Era Life and Fire Assurance Company. The claim to prove arose out of a purchase made by the *30 Era Company, which was a company registered * under the Act 7 & 8 Vict. c. 110, of the business, property and effects of the Saxon Company; a company also registered under the same Act. The agreement of purchase was dated the 15th of June, 1856. It was afterwards modified by two agreements dated the 28th and 30th of January, 1857, and as modified was ultimately carried into effect by a deed dated the 1st of August, 1857, and made between the Saxon Company of the first part, three of the directors of that company of the second part, a great number of persons who were shareholders in the Saxon Company of the third part, the Era Company of the fourth part, and three of the directors of the Era Company of the fifth part. By this deed it was witnessed, that the Saxon Company thereby assigned all their property and effects to the Era Company, and then the three directors of the Saxon Company also joined in that assignment, and there was a power of attorney to enable the Era Company to recover moneys due to the Saxon, followed by covenants with the Era, all of which were entered into on the part of the shareholders of the Saxon Company, but not of the company itself, having for their object to carry into effect that agreement, and a covenant by the Era Company to pay the debts and liabilities of the Saxon Company. After the date of the agreement of the 15th of June, 1856, but before the execution of the above-mentioned deed, an order was made by this Court to wind up the Saxon Company. This order was made subject to the agreement of the 15th of June, 1856. Before the above-mentioned deed was executed, all proceedings under the order were stayed by an order of this Court dated the 11th of June, 1857. In pursuance of the above-mentioned deed, the Era Company took possession of the property and effects of the Saxon Company, removed the business of the Era Company * 31 to the Saxon Company's office, got in various debts due to, and paid some of the debts due from, the Saxon Company, (a) Vol. 2, p. 408. granted new policies in lieu of some of the policies which the Saxon Company had granted, and appeared in all respects to have acted as owners of the purchased property. The Era Company afterwards became embarrassed, and by an order of this Court dated the 29th of May, 1858, it was ordered to be wound up. Official managers of both the companies were appointed under their respective winding-up orders. After the order for winding up the Era Company had been made, some of the creditors of the Saxon Company, whose debts the Era Company had undertaken to pay, applied to prove their debts against the estate of the Era Company, but their right to prove was disputed on the part of the Era Company; and their application was ultimately refused by the Vice-Chancellor upon the ground, as it appeared, that the agreements and deed made and entered into between the two companies were ultra vires. Independently of the proofs which were thus rejected, the Era Company had, it appeared, paid on account of the debts and liabilities of the Saxon Company more than they had received from the assets of that company. In this state of circumstances, the Era Company, by their official manager, applied to the Vice-Chancellor to prove against the estate of the Saxon Company for the excess of their payments beyond their receipts. It was from the refusal of this application that the present appeal was brought. The 13th clause of the deed of settlement of the Era Company dated the 27th of February, 1852, provided that * 32 it should be competent for any general meeting, ordinary or extraordinary, to elect directors and auditors, and to remove them and vary their number in manner therein provided, and to receive, examine and pass or reject the accounts, balance sheets and reports of the directors, auditors and (if any) of the actuary; to compel the production of any book, paper, deed, or document belonging to the society, and generally to control the board of directors; to authorize any act to which the sanction of a general meeting was thereby made requisite, and to discuss and, subject to the following clause and the provisions of the deed, to determine upon any question, matter or thing relating to the affairs of the company which should arise in the course of the conduct or management thereof, and should be brought before such meeting by any shareholder. And the 38th clause provided, that it should be competent for the directors to alter, rescind, or abandon any contract that might be entered into by them on behalf or in the name of the company, and also to institute, conduct and compromise, terminate and abandon, as they might think expedient, any actions, suits, or any other legal proceedings relating to the property or affairs of the society, and also to enter into and execute any such bond or agreement for the submission to arbitration as was specified in this clause, and to compound for or abandon any debt or debts owing to the company, and to sign or execute any deed of composition, conveyance, or assignment of estate and effects made by any debtor to the society, and to sign and execute the certificate or other discharge of any bankrupt or insolvent or other person indebted to the society, and also to authorize the chairman, deputy chairman or any of the directors or the manager to prove any debt due *33 to the company from any * bankrupt or insolvent, and gener ally where the deed was silent or did not otherwise provide, to act in the direction of the concerns of the company in such manner as at their absolute discretion they should think most conducive to the interests of the society, and for that purpose to make, do, and execute all such acts, deeds, matters and things whatsoever as might be requisite or expedient in that behalf. Mr. Giffard and Mr. Reilly, for the official manager of the Era Company, in support of the appeal. As the Saxon Company had no right to sell their business to the Era Company, and the latter company had no right to buy it, the assignment was a nullity, and the consideration for which the directors of the Era undertook to pay the debts of the Saxon Company failed. The Saxon Company are consequently indebted to the Era Company in the amount paid by the latter company to the creditors of the former, after deducting the amount received by the Era in respect of the assets of the Saxon Company. They referred to Ernest v. Nicholls, (a) Balfour v. Ernest, (b) Stone v. Godfrey. (c) [The Lord Justice TURNER referred to Bryson v. Warwick and Birmingham Canal Company. (d)] (a) 6 H. L. Cas. 401. (c) 5 De G., M. & G. 76. (d) 4 De G., M. & G. 711. Mr. Roxburgh, for the creditors' representative of the Era Company. Mr. Daniel and Mr. W. Morris, for the official manager of the Saxon Company. The 13th and 38th clauses of the Era deed were sufficient to authorize the purchase by that company of the business of the Saxon Company, and whether the deed of the Saxon Company authorized the sale is immaterial, since the Era Company was aware of all the circumstances of the case and of the title which the Saxon Company could make. The transaction was confirmed by special general meetings of both societies. The care with which the deed was prepared, and all the circumstances of the case, prove that the Era Company had notice of every thing which it was material for them to decide. A large number of policies in the Saxon Company have been exchanged for policies in the Era, at the current rate of premium, and other dealings and transactions have taken place on the footing of the purchase extending over several years, and it would be impossible to restore the parties to their original position; the payments in respect of which the proof was tendered were not moneys paid to the use and at the request of the Saxon, but were paid in discharge of an obligation which the Era Company undertook. If such transactions could be undone at all it could only be on a bill filed by a shareholder of the Era against the Saxon and Era Companies to set aside the deeds. Moreover, the order for winding-up was made subject to the agreement of the 15th of July, 1856, insisted on by the Era. They cited Ex parte Brotherhood, Re Agricultural Cattle Insurance Company, (a) and The Port of London Assurance Company's Case. (b) Mr. Giffard, in reply, cited the cases of Re Phoenix Life Assurance Company, (c) and Ex parte Morgan, (d) * and *35 argued that what took place at the public meetings had reference to the agreement of July, 1856, and not to the arrangement ultimately carried into effect; that the intention of the agreement (a) 31 L. J. N. S. Ch. 861. (c) 2 Johns. & H. 441. (d) 1 Mac. & G. 225. of July, 1856, was, that the Saxon debts should be paid out of the Saxon assets, and not by the Era Company, and that on making the order for winding up the Saxon Company in the terms in which it had been made, the Court did not intend to intimate any opinion as to the validity of the sale, but simply to reserve the question of the validity of the agreement. Judgment reserved. November 21. THE LORD JUSTICE KNIGHT BRUCE. - This case was brought before us by way of appeal from an order made by the Vice-Chancellor WOOD, and, as it came before his Honor, is, with the judgment delivered by him, reported by Mr. Vaughan Johnson and Mr. Hemming. The appeal is that of Mr. Croysdill, the official manager under the order made in the year 1858 for winding up the Era Company, and is from the refusal of the Vice-Chancellor to accede to an application by Mr. Croysdill, which, directed against the deed of the 1st of August, 1857, mentioned frequently during the argument, had for its object that the Court should treat that deed as not binding on the Era Company or its members or property, and act accordingly. The appeal having been fully and ably argued here, we are to say whether, in our opinion, the application should have been and should now be successful. It appears to me that the deed, *36 following as it did and * grounded as it was upon the several proceedings and acts of July, 1856, and January, 1857, which are in evidence, bound and does bind the Era Company and the Saxon Company and their members and estates respectively; that the deed, if not thus binding originally, became so in or before the year 1859 by acquiescence and conduct; and that the application refused by the Vice-Chancellor, made as it first was after that year, if it could have properly succeeded at any time, was too late. It is impossible for us (I think) with propriety, now to act against the deed or disturb the arrangement made by it. The appeal in my judgment fails. The Lord Justice TURNER, after stating the facts as set out above, said: |