B. E. Spencer (Bernard Edward Spencer) Brodhurst.

The law and practice of the Stock Exchange : with appendices containing the rules and regulations annotated, and forms of instruments accompanying a mortgage of securities online

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THE

LAW AND PRACTICE



OF THE



STOCK EXCHANGE

WITH APPENDICES.



CONTAINING

THE RULES AND REGULATIONS ANNOTATED,

AND FORMS OF INSTRUMENTS ACCOMPANYING

A MORTGAGE OF SECURITIES.



BY

B. E. SPENCER BRODHURST, M.A., B.C.L.

OP THE INNER TEMPLE, BARR1STER-AT-LAW.




LONDON:

WILLIAM CLOWES AND SONS, LIMITED,
27, FLEET STREET.

1897.



SPRECKELS



PREFACE.



AT the present day, operations upon the Stock Exchange are
conducted upon so vast and complex a scale, and so intimately
affect the interests of the public, that a fresh attempt to
explain the rules which regulate the conduct of business
between member and member, and to elucidate the legal
principles which govern the relations of members with the
public, perhaps scarcely requires an apology. If an apology
is needed, it must be found in the various new cases dealing
with this branch of the law which have been decided by the
courts during the last three or four years. Among the most
important of these is that of the Metropolitan Coal Consumers'
Co. v. Scrimgeour, in which the Court of Appeal have held that
payments made to a broker in consideration of services
rendered in placing the shares of a company, do not amount
to issuing those shares at a discount, and are not illegal
payments a ; decision which it is now proposed to supple-
ment by statute. Attention should also be drawn to those
cases, such as Walter v. King, Petre v. Sutherland, and Sachs v.
Spielmann, which seem to show that of late years the courts
have relaxed something of the stringency of the rule which
forbade a broker to deal with his principal in any other
capacity than that of agent. For where a principal fails to
take up stock which his broker has bought on his behalf, it
seems that it is permissible for the broker to take over the
stock himself, provided that he has previously had a fair

113621



IV PREFACE.

valuation made, and then to charge his principal with any
loss occasioned by his refusal to accept delivery. And,
further, it appears that if a broker receives instructions to
carry over his principal's stock, he will be allowed to carry
over personally, provided that it is for the principal's interest
that he should do so, and that the principal on receiving
notice of the transaction does not repudiate it. In fact,
the rule at present seems to be that a broker is on all
occasions bound to use his best endeavours in his employer's
interests, and that if, in doing so, he is occasionally com-
pelled to abandon the position of an agent and take up
that of a principal, he will not be held to have acted
wrongfully.

In Forget v. Ostigny the distinction between gambling
and legitimate speculation, enunciated by Lord Justice
Lindley and affirmed by the Court of Appeal in the case of
Thacker v. Hardy, has received further confirmation from the
Judicial Committee of the Privy Council. In Strachan v.
.Universal Stock Exchange, the question of cover has received
consideration ; and the Court of Appeal have drawn a
distinction between monej 7 or securities which have been
lodged to abide the event of a wager, the property in which
passes upon the decision of the wager, and money or
securities which have been lodged to secure the due observ-
ance of a contract by the person who lodges them, and as
to which appropriation or realization and appropriation, as
the case may be, is or are necessary before any property in
them passes to the depositee.

The law relating to wagering contracts so rarely affects
bargains in stocks and shares, that it is perhaps almost super-
fluous to point out here that the principle laid down in the
famous case of Head v. Anderson is no longer good law, and
that an agent who, since the Gaming Act of 1892, makes a
gaming contract by his principal's instructions and pays it
to save himself from loss, is not entitled to recover the



PREFACE. V

amount from his principal, although, if the bet has been won
and the money has actually been paid into the agent's hands,
the principal obtains a title to it which he may enforce by
process of la\v.

It has been my endeavour to render the book useful not
only to the legal profession, but also to members of the
Stock Exchange and to the public generally. Consequently
I have cited many of the cases at a length which would
perhaps have been unnecessary had the bcok been intended
only for those to whom the legal reports are readily
accessible.

It is chiefly, too, with a view to the convenience of the
public, who generally have little opportunity for acquiring
an intimate acquaintance with the manner in which the
business of the Stock Exchange is conducted, that the chapter
which illustrates the usual method of "doing a bargain " has
been inserted.

The rules of the Stock Exchange with short notes will be
found in Appendix A. Reference has been made to them
throughout the text, but it must not be forgotten that
they are subject to constant revision at the hands of the
Committee, and that the numbers are also liable to
alteration.

I have to acknowledge my indebtedness to Mr. Francis's
Characters and Chronicles of the Stock Exchange for much of
the information contained in the introductory chapter. I
also desire to acknowledge the great obligation which I am
under to those members of the Stock Exchange who most
kindly assisted me with the fourth chapter, and to Mr. R.
Cremieu Javal, of the firm of Messrs. James Mason and Son,
for a very careful revision of the glossary and other portions
of the book which deal with the practice and management of
the Stock Exchange ; to Messrs. B. Perks and W. Y. R. Fane,
of the Inner Temple, for assistance with the references and
index ; and to Mr. F. M. Abrahams, of the Inner Temple, for



y PREFACE.

the many valuable suggestions which his extensive expe-
rience of this class of business has enabled him to give me,
and to which the book will owe a large part of such practical
value as it may be found to possess.

THE TEMPLE, B>

July, 1897.



CONTENTS.



PAGE

PREFACE ... ... ... ... ... ... ... iii.

TABLE OF STATUTES CITED ... ... ... ... ix.

TABLE OF CASES CITED ... ... ... ... ... xi.

TABLE OF DEFENDANTS' XAMES IN ALPHABETICAL ORDER ... xxiii.

TABLE OF ABBREVIATIONS ... ... ... ... xxvii.

CHAPTER

I. INTRODUCTORY ... ... ... ... ... 1

II. GLOSSARY ... ... ... ... ... ... 14

III. THE STOCK EXCHANGE AND ITS MANAGEMENT ... 30

IV. THE COURSE OF BUSINESS ON THE STOCK EXCHANGE ... 51
V. STOCK EXCHANGE SECURITIES ... ... ... 73

VI. FORMATION OF THE CONTRACT... ... ... ... 85

VII. RIGHTS OF THE PARTIES UNDER THE CONTRACT ... 94

Section I. Broker and Principal ... ... ... 94

Section II. Broker and Jobber ... ... 133

Section III. Jobber and Principal ... ... 135

Section IV. Vendor and Purchaser ... ... 146

VIII. COMPLETION OF THE CONTRACT ... ... ... 158

IX. AVOIDANCE OF THE CONTRACT ... ... ... 167

X. REMEDIES ... ... ... ... ... ... 207

XL TRANSFERS ... ... ... ... ... 220

XII. MORTGAGES OF STOCK AND SHARES ... ... ... 236

APPENDIX A. THE EULES OF THE STOCK EXCHANGE WITH NOTES 247
APPENDIX B. FORMS OF LOAN-NOTE AND MEMORANDUM QUALIFY-
ING A TRANSFER ... ... ... ... 294

INDEX .. 297



TABLE OF STATUTES.



PACK

13 Edw. 1 (Stututa Civitatis London) 2

1 Jac. 1, Stat. 21 (An Acte againstc Brokers) .... 3

20 Car. 2, c. 3 (Statute of Frauds) 43, 85

8 & Will. 3, c. 20 (An Act for enlarging the Capital Slock of the

Bank of England, &c.) ......... 4

c. 32 (An Act to restrain the Number and Ill-practice of

Brokers and Stock-jobbers) ....... 4

6 Anne, c. 68 (c. 16, Kuffhead) (An Act raising the Payments made

by Brokers to the City of London) . . . . 5, 7, 106, 113
10 Anne, c. 18 (A Revenue Act) 5

7 Geo. 2. c. 8 (Sir John Barnard's Act to prohibit Stock Exchange

Gambling) 10, 35, 167, 168

10 Geo. 2, c. 8 (Stock-jobbing Act, 173G) 10

55 Geo. 3, c. 184 (Stamp Act, 1815) . . . 85,151,221,220

57 Geo. 3, c. 60 (Loc. and Pers.) (An Act increasing the Payments
made by Brokers to the City of London) ..... 7

8 Yict. c. 16 (Companies Clauses Consolidation Act, 1845) 221, 233, n. 3
7 & 8 Yict. c. 24 (Repeal of Statutes against forestalling, &c.) . 11

9 Viet. c. 100 (Gaming Act, 1845) . . 110, 113, 167, 172, 193

2 1 A: 22 Yict. c. 70 (Cheques to permit crossing of, &c.) . .76

23 Viet. c. 28 (Repeal of Barnard's Act) .... 10, 171

24 & 25 Yict. c. 06 (Larceny Act, 1861) 162

2:. A: 26 Viet. c. 80 (Companies Act, 1862) 77, 108, 216, 221, 233, n. 3, 245
28 20 Yict. c. 78 (Mortgage Debenture Act, 1865) ... 84
30 Yict. c. 20 (Leeman's Act Prevention of Speculation in Bank

Shares) 167, 107

:;n \- 31 Yict. c. 131 (Companies Act Amendment Act, 1867) 81, 151, 231,

284

32 & 33 Yict. c. 10 (The Stannaries Act, 1869) .... 232
c. 71 (Bankruptcy Act, 1860) . . . . 47, loo, 203

c. 104 (Payment of Dividends on Public Stocks) ... 76

33 Yict. c. 14 (Naturalisation Act, 1870) 252

33 & 34 Yict. c. 60 (London Brokers Relief Act, 1870) . . .12

c. 71 (National Debt Act, 1870) 73-76

c. 82 (Canada Defences Loan Act, 1870) .... 77

c. 07 (Stamp Act, 1870) 120-122

37 & 38 Viet. c. 62 (Infants Relief Act, 1874) . . . .155

38 & 39 Viet. c. 83 (Local Loans Act, 1875) .... 84, 245
41 Viet. c. 15 (Customs and Inland Revenue Act, 1878) . . 120
43 & 44 Viet. c. 8 (Isle of Man Loans Act, 1880) .... 84
46 & 47 Viet. c. 52 (Bankruptcy Act, 1883) . . . 47-49, 155, 203



TABLE OF STATUTES.

47 Viet. c. 3 (London Brokers Belief Act, 1884) . . 12^113

51 Viet. c. 8 (Customs and Inland Eevenue Act, 1888) . 122

51 & 52 Viet. c. 41 (Local Government Act, 1888). 77

53 & 54 Viet. c. 39 (Partnership Act, 1890) ... 127

54 & 55 Viet. c. 39 (Stamp Act, 1891) 120-122, 157, 221, 229-231, 245,

c. 43 (Forged Transfers Act, 1891) . . '' 229

55 Viet. c. 9 (Gaming Act, 1892). . . HO, 113, 173, 192, 195

55 & ;>6 Viet. c. 36 (Forged Transfers Act, 1892) .... 229
c. 39 (National Debt and Stockholders Relief Act, 1892) '. 74

56 Viet. c. 7 (Customs and Inland Revenue Act, 1893 (Stamps)) 120 122
56 & 57 Viet. c. 53 (Trustee Act, 1893) . ... 78, 82

c. 63 (Married Woman's Property Act, 1893) . 140

c. 64 (National Debt Redemption Act, 1893) 76

c. 71 (Sale of Goods Act, 1893) . $5



TABLE OF CASES.



Abbot r. Straiten (1846), 3 J. & L. f>03 243

Adderley r. Dixon (1824), 1 Sim. & Stu. 607 ... 209, 217
Allen P. Graves (1870), L.R. 5 Q B. 478; 39 L.J. Q.B. 157: 22 L.T.

677 140

Amory r. Meryweather (1824), 2 B. & C. 573 . . . . 171
Appleyard. Ex parte (1881), 18 Ch. D. 587 ; 50 L.J. Ch. 554 ; 45 L.T.

552; 30 W.R. 170 213

Archer v. Williams (1846), 2 C. & K. 26 213

Armstrong r. Stokes (1872), L.R. 7 Q.B. 598 136

Asliton r. Dakin (1859), 7 W.R. 384 174

Atherfold r. Beard (1788), 2 T.R. 610; 1 R.R. 556 ... 168

Att.-Gen. p. Bouwens (1838), 4 M. & W. 171 .... 79

Aubert r. Maze (1801), 2 Bos. & P. 371 171

Audain, Ex parte (1889), 42 Ch. D. 1 ; 58 L.J. Ch. 467 ; 60 L.T. 684 ;

:-J7 W.R. G74 118, 119

Bagshaw r. Seymour (1856), 18 C.B. 903; 29 L.J. Ex. 62, n. . . 201
Bahia and San'Francisco Railway Co., In re (1868), L.R. 3 Q.B. 584 ;

37 L.J. Q.B. 176; 18 L.T. 467; 16 W.R. 862 .... 234
Balkis Consolidated Co. r. Tomkinson [1893], A.C. 396 ; 63 L.J. Q.B

134; 69 L.T. 598; 42 W.R. 204 216,234

Baker r. Nottingham Banking Co. (1891), 60 L J. Q.B. 542 . . 244
Bank of Bengal v. Macleod (1849), 7 Moo. P.C.C. 35 . .100

Bank of Ireland r. Evan's Trustees (1855), 5 H.L.C. 389 . 222, ?2S
Barclay r. Pearce (1884), 1 5 Q.B.D. 390, n. 3 . . . .198

Earned r. Hamilton (1841), 2 Rail. Cas. 624 214

Barry r. Croskey (1861), 2 J. & H. 1 173,202

Barton r. London & North We>tem Rpilway Co. (1889), 24 Q.B.D..

77: 59 L.J. Q.B. 33; 62 L.T. 1(34 ; 38 W.R. 197 . . 228, 232
r. North Staffordshire Railway Co. (1888), 38 Ch. D. 458;

57 L.J. Ch. 800; 58 L.T. 549; 36 W.R. 754 .... 2*8
Bayley v. Wilkins (1849), 7 C.B. 886; 18 L.J. C.P. 273. 88, 99, 108, 151,

273
Bayliffe r. Butterworth (1847), 1 Ex. 425; 17 L.J. Ex. 78 . 88, 107

Beckitt r. Bilborough (1 858), 8 Hare, 188 150

Bedford r. Bagshaw (1859), 4 H. A: N. 538 : 29 L.J. Ex. 59 . 201-203
Beeston r. Beeston (1875), 1 Ex. D. 13 ; 45 L.J. Ex. 230 ; 33 L.T. 70 J ;

24 W.R. 96 193

Belton r. Hatch (1888), 109 New York Rep. 593 .

Bentinck r. London Joint Stock Bank [1893], 2 Ch. 120; 62 L.J.

Ch. 358; 68 L.T. 315; 42 W.R. 140 . 64, 79, 97, 133, 197, 226, 237




Xli TABLE OF CASES.

PAGE

Bentley, In re (1894), 69 L.T. 204 Ill)

Bermingham r. Sheridan (1864), 33 Bcav. 660; 10 L.T. 256: 12

W.R, 658 148

Bicderman r. Stone (1867), L.R. 2 C.P. 504; 36 L.J. C.P. 198; 16

L.T. 415 93, 108

Bishop r. Balkis Consolidated Co. (1890), 25 Q.B.D. 512 ; 59 L.J.

Q.B. 565; 39 W.R. 99 234

Black r. Homersham (1878), 4 Ex. D. 24 ; 48 L.J. Ex. 79 ; 39 L.T. 671 ;

27 W.R. 171 150

Blackburn r. Mason (1893), 9 T.L.R. 286 . . . . 126, 138
Blake r. Parker (1896), Times, April 21 .... 168, 197
Bloomenthal, Ex parte [1896], 2 Ch. 525 ; 65 L.J. Ch. 748 ; 74 L.T.

670; 44 W.R. 577 . .234

Bongiovanni v. Societe Generate (1886), 54 L.T. 320 . 66, 237, 266-

Booth v. Hodgson (1795), (5 T.R. 405 171

Bouch r. Sevenoaks, &c., Railway Co. (1879), 4 Ex. D. 133; 48 L.J.

Ex. 338; 40 L.T. 560; 27 W.R. 507 78

Bowlby r. Bell (1846), 3 C.B. 284; 16 L.J. C.P. 18 85, 107, 112. 220

Bowring r. Shepperd (1871), L.R. 6 Q.B. 309; 40 L.J. Q.B. 129;

24 L.T. 721 ; 19 W.R. 852 . . . 91, 147, 149, 150, 152

Bradford Banking Co. r. Briggs (1886), 12 App. Cas. 29; 56 L.J.

Ch. 364 ; 56 L.T. 62 ; 35 W.R. 521 245

Bradley r. Holdsworth (1838), 3 M. & W. 422 .... 85
Bridger r. Savage (1885), 15 Q.B.D. 363; 54 L.J. Q.B. 464; 53 L.T.

129; 33 W.R. 891 ... 193

Brocklesby v. Permanent Temperance Building Society [1895], A.C.

173; 64 L.J. Ch. 433; 72 L.T. 477; 43 W.R. 606 ... 97
Brown v. Black (1873), L.R. 15 Eq. 363; 42 L.J. Ch. 397; 28 L.T.

256; 21 W.R. 457; aff. L.R. 8 Ch. 939; 42 L.J. Ch. 841 ; 2i) L.T.

362 ; 21 W.R. 892 154

r. Boorman (1844), 11 Cl. & F. 1 9!>

r. Turner (1798), 7 T.U. 630; 2 Esp. 632 . . . 170, 171

Bryan r. Lewis (1826), Ry. & M. 386 169

Bubb v. Yelverton (1871), 24 L.T. 822 ; 19 W.R. 739 . . . JIM
Buckeridge v. Ingram (1795), 2 Ves. juu. 652 .... 86

Buhner, Ex parte (1807), 13 Ves. 313 170

Buhner v. Norris (1860), 30 L.J. C.I'. 25 86

Burkinshaw v. Nicholls (1878), 3 App. Cas. 1004; 48 L.J. Ch. 179;

39 L.T. 308; 26 W.R. 819 234

Burra v. Ricar<lo (1885), 1 C. & E. 478 237

Byers v. Beattie (1867), 2 Ir. Rep. C.L. 220 ; 16 W.K. 27! > . .176-

Cadett v. Earle (1877), 5 Ch. D. 710; 46 L.J. Ch. 798 . . . 76

Campbells Brass (1891), 7 T.L.R. 612 124

Cannan v. Bryce (1819), 3 B. & Aid. 179 171

Capper's Case (1868), L.R. 3 Ch. 458; 16 W. R. 1002 . . 141, 155
Carlill v. Carbolic Smoke Ball Co. [1892], 2 Q.B. 484; 61 L.J. Q.B.

696; aff. [1893], I Q.B. 256; 62 L.J. Q.B. 257; 67 L.T 837; 41

W.R. 210 182

Carmichael's Case [1896]. 2 Ch. 643; 65 L.J. Ch. 902 ; 75 L.T. 45 . 119
Carter v. Wake (1877), 4 Ch. D. 605 ; 46 L.J. Ch. 841 . . 125, 239
Case r. M'Clellan (1871), 25 L.T. 753; 20 W.R. 113 . . 151, 222
Castellan v. Hobson (1870), L.R. 10 Eq. 47; 39 L.J. Ch. 490; 22

L.T. 575 ; 18 W.R. 731 93, 154

Chapman r. Shepherd (1867), L.R. 2 C.P. 228; 36 L.J. C.P. 113;

15 L.T. 447; 15 W.R. 314 88,93,108



TABLE OF CASES. xiii

heale v. Kenwarel (1858), 3 De G. & J. 27 : '27 L.J. Ch. 784 . 88, 217*

218

Child r. Morley (1800), 8 T.R. 610 10G, 170

City Bank, Ex parte (1808), L.R. 3 Ch. 758; 18 L.T. 894; 16 W.R.

919 81

Clarke r. Powell (1833), 4 B. & Aid. 846; 2 L.J. K.B. 145 . 6, 7, 113

Clayton's Case (IS 1 6), 1 Mer. 572 131

Clayton r. Dilly (1811), 4 Taunt. 165 170

Clegs r. Townshend (1867). 16 L.T. 180 112

Ooalport China Co., In re [1895], 2 Ch. 404; 64 L.J. Ch. 710; 73

L.T. 46 : 44 W.R. 38 232

Coates r. Pacey (1892), 8 T.L.R. 351. 474 . . . 89. 104, 198
Cohen v. Kittell (1889), 22 Q.B.D. 680; 58 L.J. Q.B. 241; 60 L.T.

932 ; 37 W.R. 400 183, 193

Colburne and Strawbridge, Ex parte (1870), L.R. 11 Eq. 478; 40

L.J. Ch. 93; 23 L.T. 515; 19 W.R. 223 81

Coles r. Bank of England (1839), 10 A. & E. 437; 9 L.J. Q.B. 36 . 222,

228

v. Bristowe (1868), L.R. 4 Ch. 3 ; 38 L.J. Ch. 81 ; 19 L.T.

403; 17 W.R. 105 92,98,143,144

(1868), L.R. 6 Eq. 149; 18 L.T. 459; 16 W.R. 690 . . 143

Collen c. Wright (1857), 8 E. & B. 647 98

Colonial Bank r. Cady (1890), 15 App. Cas. 267 ; 63 L.T. 27 ; 39

\V.R. 17 225, 227

r. Whinney (1886), 11 App. Cas. 426; 56 L.J. Ch. 43; 55

L.T. 362 ; 34 W.R. 705 1,48,224,242

Cooke r. Eshelby (1887), 12 App. Cas. 271; 56 L.J. Q.B. 505; 56

L.T. 673; 35 W.R. 629 138

Cooke, Ex parte (1876). 4 Ch. D. 123; 46 L.J. Ch. 52; 35 L.T. 049;

25 W.R. 171 129

Cooke, In r? (1876), 4 Ch. D 555 47

Cooper r. Neil (1878), 27 W.R. 159. u 110, 177

Cope r. Rowlands (1836), 2 M. & W. 149 ; 6 L.J. Ex. 63 . . 113
Copeland r. North Eastern Railway Co. (1856), 6 E. & B. 277 . 221
Crahb r. Miller (1871). 24 L.T. 219; aff. 24 L.T. 892; 19 W.R.

882 93, 98, 149, 152

Crossley r. Magniac [1893], 1 Ch. 594; 67 L.T. 798; 41 W.R. 598 126,

138
Crouch r. Credit Foncier of England (1873), L.R. 8 Q.B. 374 ; 42

L.J. Q.B. 183; 29 L.T. 259; 21 W.R. 946 ... 80, 81

Cruse v. Paine (1869), L.R. 4 Ch. 441; 38 L.J. Ch. 225; 17 W.R.

1033 145

Cuddee r. Rutter, 1 L.C. Eq., vol. i. 907 217

Curtis' Case (1868), L.R. 6 Eq. 455; 37 L.J. Ch. 629; 23 L.T. 287;

18 W.R. 957 155, 156

Daniels, Ex parte (1807), 14 Ves. 190 171



Online LibraryB. E. Spencer (Bernard Edward Spencer) BrodhurstThe law and practice of the Stock Exchange : with appendices containing the rules and regulations annotated, and forms of instruments accompanying a mortgage of securities → online text (page 1 of 32)