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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jamieson v. Andrew (ante, p. 179) [1866] ScotLR 1_226 (20 March 1866) URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0226.html Cite as: [1866] ScotLR 1_226, [1866] SLR 1_226 |
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Page: 226↓
(ante, p. 179).
Held that an English solicitor had no lien over the register and transfers of a limited liability company which was being wound up, for payment of an account due to him.
This is an application by Mr G. A. Jamieson, C.A., the official liquidator of the Garpel Hœmatite Company (Limited), for delivery of the books, deeds, and papers of the company. These were in the hands of Mr John Andrew, Solicitor in London, who retained them, claiming a lien over them for a sum of £768, 19s. 3d. due to him as solicitor of the company. Some time ago the Court ordered that the papers should be transmitted to the Clerk of Court in order that they might be inspected in his hands. The question as to Mr Andrew's lien was then argued in writing, and the Court on 23d February last expressed an opinion that the liquidator should, before getting access to the register and transfers of the company (to which he now restricted his demand), oblige himself to pay Mr Andrew's account, in the event of its being found that there was a lien over the papers. The liquidator refused to grant this obligation, but offered to bind himself to pay the claim, if the lien should be held to exist, out of the first recoveries of the estate. The Court to-day allowed him to get up the register and transfers without requiring him to grant the obligation they had previously suggested.
The Lord President said—In this case the liquidator tells us that the register and transfers are essential to him, and that he can do nothing in regard to the liquidation without them. It is therefore now necessary for us to determine this question in so far as the register and transfers are concerned. It is said that the register and transfers are in a different position from the other papers of the company, inasmuch as under the clauses of the Joint-Stock Companies Act of 1856 the register was a document requiring to be deposited and kept in the registered office of the company, which is at Garpel in Ayrshire, that all parties might have access to it; and that the company was bound to keep it there under certain penalties. It is very important to observe that when introducing the system of limited liability the Legislature have taken care that the public should have the benefit of access to the register of the company. Under the statute the register should have been at the registered office of the company. Had the company then |power to remove the register not only from the office, but from the jurisdiction within which it was situated? Another question is—Could the company pledge the register of the company tor their debts so as to give a creditor a lien over it? It appears to me they could legally do neither; but they have removed the register to England, and so deprived the public of the right of access to it which the statute provided. It is said, no doubt, that by giving up the register to the liquidator we will enable the company to undo its own illegal act; but it is to be kept in view that Mr Andrew was himself a shareholder of the company at the time when the register was placed in his hands. Then, in regard to the transfers, they are just a part of, or rather the foundation of, the register. But they belonged not to the company, but to the individual shareholders, who are now represented by the liquidator. The company had therefore no power to pledge them either.
The other Judges concurred.
The counsel for Mr Andrew moved that extract should be superseded for a few days, in order that he might have time to present an appeal to the House of Lords; but the Court refused the motion.
Counsel for Liquidator— Mr Gifford. Agents— Messrs Auld & Chalmers, W.S.
Counsel for Mr Andrew— Mr W. M. Thomson. Agents— Messrs C. & A. S. Douglas, W.S.
