London, Paris & American Bank v. Aronstein

• Decision Date: 07 July 1902
• Docket Number: 803.
• Citation: 117 F. 601
• Parties: LONDON, PARIS & AMERICAN BANK, Limited v. ARONSTEIN.
• Court: U.S. Court of Appeals — Ninth Circuit

117 F. 601

LONDON, PARIS & AMERICAN BANK, Limited v. ARONSTEIN.

No. 803.

United States Court of Appeals, Ninth Circuit.

July 7, 1902

Henry Ach, for plaintiff in error.

Rosenbaum & Scheeline, for defendant in error.

The answer of the defendant denies that it has any officers in the city and county of San Francisco or in the state of California save and except managers and cashiers of its banking business local to the state of California, and avers that it is a corporation duly organized and existing under and by virtue of the laws of England and Great Britain having its principal place of business in London, England. That there is in full force and effect in England and Great Britain an act of parliament providing 'that every person who shall administer the personal estate of any person dying after the passage of this act, or any part thereof, without proving the will of the deceased, or taking out letters of administration of such personal estate, within six calendar months after the death of the person so dying, shall forfeit and pay the sum of fifty pounds to be recovered in his majesty's court of exchequer, by action of debt,' etc. This statute is known as 'Chapter XC, Anno Regni Georgii III Tricesimo Septimo,' and quotes other acts passed August 25, 1857, by the parliament of Great Britain relating to probate and letters of administration, and also an act of parliament passed July 5, 1865, to amend the procedure and practice in crown suits in courts of exchequer providing the method of administering upon the estates, and the act entitled 'Customs and Inland Revenue Act,' passed by the parliament of Great Britain in 1881, known as '44 & 45 Vict.c. 12,' section 40 thereof providing for a duty to be charged in the settlement of estates of deceased persons, which duty was changed by the 'Finance Act,' of 1894 (57 & 58 vict.c. 30), which act provide that, where an estate exceeds 1,000 the duty shall be 3 per 100, and, in addition thereto, 1 per cent, duty where the property is settled. That said defendant was incorporated under what is known as the 'Companies Act,' entitled 'An act for the incorporation, regulation, and winding-up of trading companies and other associations' (25 & 26 Vict.c. 89). By part 2, Sec. 22, of said act, it was provided that the shares of any member in the company shall be personal estate, capable of being transferred in manner provided by the regulation of the company. That by section 39 of said act it was provided: 'Every company under this act shall have a registered office to which all communications and notices may be addressed; if any company under this act carries on business without having such an office, it shall incur a penalty not exceeding five pounds for every day during which business is so carried on. ' That by section 8 of the first schedule of sais act it is provided that 'the instrument of transfer of any share in the company shall be executed by both the transferrer and transferee, and the transferrer shall be deemed to remain a holder of such share until the name of the transferee is entered in the register book is respect thereof. ' By section 12 of said schedule it is provided that 'executors or administrators of a deceased member shall be the only persons recognized by the company as having any title to his share. ' That by the articles of memorandum of association of the defendant, and by resolutions and by-laws duly passed, it was provided that the registered office of the company should be situated in England; that the register of shareholders shall be kept by the secretary of the company under the control of the board; that 'the instrument of transfer of any share shall be in a form approved by the board, and shall be executed by both the transferrer and transferee,' and then sets forth the form of transfer adopted by the corporation. Section 30 of the said articles of memorandum provides that 'the transferrer of any share shall be deemed to remain the holder of such share until the name of the transferee is entered in the register in respect thereof. ' Section 31 provides that the board may decline to register any transfer made by a member indebted to the company, or where the certificate of the share proposed to be transferred is not left with the secretary for examination. Section 33 provides that: 'The survivor or survivors, in the case of joint holders, and the executors or administrators of a deceased member in the case of a sole holder, shall be the only persons recognized by the company as having any title to a share registered in the name of such member, and the company shall not be affected by any notice of any trust, or of any agreement to transfer or charge any registered share, or of any equitable, contingent, future or partial interest in any registered share, or of any other right in respect of such share, except an absolute right thereto in the person from time to time registered as the holder thereof, and except also the right of any person becoming entitled to a registered share in any way (other than by transfer) to become entitled to a registered shareholder, or to transfer such share. ' Section 34 provided that 'any person becoming entitled to a registered share in consequence of the death of any member, or in any way other than by transfer may be registered as a member in respect of such share. ' That by article 14 of said by-laws of said corporation it is provided that 'the directors may appoint an authority in San Francisco, or such other place as the board may from time to time think fit, to approve of or reject transfers of shares, and to direct the registration of approved transfers in a register of shares, which shall be kept at such place as aforesaid. ' That pursuant to said by-laws it was resolved by the board of directors of said corporation on the 15th day of November, 1899, that the managers of the said London, Paris & American Bank, Limited, in San francisco, be empowered, and they were authorized, to pass and register transfers of shares, and to issue, under the local seal of the company, new certificates to the holders or transferees of such shares, subject to the articles of association and by-laws of defendant to approve or reject the transfer. It is further alleged that on the 12th day of January, 1884, Adolph Aronstein was a resident of the city and county of San Francisco, state of California, and in writing made the following application to the defendant to wit: 'To the Directors of the London, Paris and American Bank, Limited.--Gentlemen: Having paid to your bankers the sum of fifty pounds, being a deposit of one pound per share on an application for fifty shares of twenty pounds each in the capital of the London, Paris and american Bank, Limited, I hereby request that you allot to me that number, and I hereby agree to accept such shares, or any less number you may allot to me, subject to the memorandum and articles of association of the company, and I further agree to pay to your bankers the sum of two pounds per share on allotment, and the balance as when required, and I hereby authorize you to place my name on the register of shareholders in respect of such shares. (Signed) Adolph Aronstein. ' That said Adolph Aronstein departed this life in the city and county of San Francisco, state of California, at said time being a resident of the city and county of San Francisco, state of California, on the 27th day of August, 1901; and that the shares which the said plaintiff alleges the said defendant has converted are the same shares issued to said Adolph Aronstein under and by virtue of said contract, laws, memorandum, and schedule and by-laws. That said Adolph Aronstein died testate in the city and county of San Francisco, state of California, on the 27th day of August, 1901. That at the time of his death he was the owner and holder of said shares of the said London, Paris & American Bank, Limited. That said Adolph Aronstein died testate, as aforesaid, and that no administration has been taken out upon his estate under the laws of England or Great Britain, and that under the laws hereinbefore quoted, if any transfer were made by said corporation other than under the laws of Great Britain, the said corporation would become liable for large costs, fines, and duties. It also alleges that, if said transfer were made at any time by said defendant 'under said act of 28 & 29 Vict.Sec. 57, the said London, Paris & American Bank, Limited, would become liable to the said commissioners for the value of said property, and for the duty thereon, and for the costs of the proceeding'; that neither the decedent nor his personal representative nor his duly authorized executrix has complied with the provisions of the companies act, not with the articles of association, by-laws, agreements, or resolutions of the said corporation in force and effect at the time of the issuance of said shares and at all times since; that there is no instrument of transfer of said shares in form approved by said board; that there is no transfer of

any shares in said corporation executed by both the transferrer and transferee; that a certificate of said shares is not and has not been left with the secretary for examination. The answer further alleges that by subdivision 31 of the memorandum of association and under the by-laws of said corporation it is provided that 'the board may decline to register any transfer made by a member indebted to the company, or where the certificate of the share proposed to be transferred is not left with the secretary for examination or where the transferee is a person under any legal incapacity, or in the case of any share or shares not being fully paid up where the transferee is not approved by the board'; that said plaintiff has not complied...