Page:Harvard Law Review Volume 2.djvu/171

 LA W OF BUSINESS CORPORATIONS.

153

Lord Hardwicke, who decided the case, was of opinion that in case the estate of the defendant proved insufficient to satisfy the plain- tiff's claim the company might be liable. " His reason was that the company must be considered as trustees for the owner at the time he purchased this stock, and as the stock had not been trans- ferred with any privity of his, they must be considered as continu- ing his trustees.'*

The last and most explicit of this series of cases was decided by Lord Worthington in 1765.* The facts were the same as in Hild- yard v. The South Sea Company.* It was admitted that the plaintiff was entitled to relief, and the only question was which of the defendants should bear the loss. It was decided that it must fall on the bank. The reason given was that " a trustee, whether a private person or body corporate, must see to the reality of the authority empowering them (sic) to dispose of the trust money." Again, it is said by the Chancellor, " I consider the admission and acceptance of the transfer as the title of the purchaser."

Whether a contract for the sale of stock was a contract for the sale of goods, wares, or merchandise, within section 17 of the Statute of Frauds, is a question which was several times considered but not definitely decided in the eighteenth century. In Pickering V, Appleby^ the judges were divided six to six as to whether a con- tract for the sale of ten shares of the Company of the Copper Mines required a memorandum in writing to make it enforceable. In other cases,* also, the point came up, but they went off on other grounds.

Whether specific performance could be had of such a contract is another question which was raised in the early part of the eigh- teenth century, because of the enormous fluctuations in prices at that time.^ The earliest case was Cud. v, Rutter,® decided in 17 19.

^ Ashby V. Blackwell and The Million Bank, Ambl. 503.

« 2 P. Wms. 76.

« I Com. 354, referred to in Colt v, Netterville, 2 P. Wms. 304, 308.

bst case the court seemed of opinion that a memorandum was necessary.
 * Colt V, Netterville, 2 P. Wms. 304; Musscll v, Cooke, Prec. in Ch. 533. In this

and the subsequent collapse of these speculations.
 * Caused by the expected vast profits of the South Sea Company and other " bubbles,"

Scould V, Butter, 2 Eq. Cas. Abr. 18, pi. 8.
 * I P. Wms. 570: sub nam, Cuddee v, Rutter, 5 Vin. Abr. 538, pi. 21 \ sub nom,

In Gardener v, PuUen, 2 Vern. 394; s. c. Eq. Cas. Abr. 26, pi. 4, which was a bill to be relieved from the penalty of a bond conditioned to be void on the transfer of certain East India stock, the court refused to relieve unless the stock was transferred; and to the same effect is Thompson v, Harconrt, 2 Bro. Par. Cas. 415.