Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

Manning v McVitie [1833] NSWSupC 50

company, shares in - fieri facias, company shares

Supreme Court of New South Wales

Dowling J., 5 June 1833

Source: Sydney Herald, 10 June 1833[1 ]

Important Case. - Manning, Executor of Simes, v. McVitie, Manager of the Bank of Australia. - This was an action brought to determine a question of priority, as to the ownership of five shares of £100 each in the Bank of Australia, between Mr. Manning, as executor of Simes, and Donaldson, Wilkinson, and Co. of London.  The action was brought by consent of the Bank, the facts being admitted, and arose out of the following circumstances: - In 1828, a person named Edward King, living in the Colony of New South Wales, and being possessed of five shares in the Bank of Australia, had a writ of fieri facias issued out against him from the Supreme Court for the sum of £268 16s. 8d. on the 24th of October, 1828, and the shares of the Bank were taken in execution.  In the mean time King went to England, carrying with him the original certificates of the shares, which he transferred to Donaldson, Wilkinson, and Co. on the 19th of February, 1829; two days before the dale of the shares, which took place on the 30th of October, 1829, the Bank received notice from Jones and Walker to register the shares in the Bank books in the name of Donaldson, Wilkinson, and Company.  This was not complied with, and the sale proceeded, when they were purchased by Capt. Simes for £90 at the Sheriff's sale; and on Captain Simes applying to the Bank to have them transferred to his name and registered, they referred him to Messrs. Moore, the Bank Solicitors, who drew the transfer; but no application being made to the Bank to perfect it until the death of Capt. Simes, and the agents of Donaldson, Wilkinson, and Co. also applying, the Directors thought it would be the most judicious course to send the case before the Court for their decision.  The learned Judge was of opinion that the proper course would be, for a statement of the whole facts to be drawn out and laid before the Court; he should direct a verdict to be entered for the plaintiff, subject to the opinion of the Judges.

Mr. Norton for plaintiff, and Messrs. Moore for the Bank.


Forbes C.J., Dowling and Burton JJ, 15 June 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266[2 ]

[p. 84] Forbes C.J. delivered the judgement of the Court in this case.

We are of opinion that the plf's cannot sustain this action at law.  Laying aside the question whether Bk shares may be levied on under a fi. fa., it appears to us that the plfs have not perfected their title so as to enable them to maintain an action at law for the dividends.  We are not called upon to determine, whether if the shares had been registered in their names, he as a Bk proprietor could have maintained an action agt the Managing Director.  The plf has not yet such a legal title as well enable them to sue from the shares.

Judgement for the Deft.



[1 ] For trial notes, see Dowling, Proceedings of the Supreme Court, Vol. 84, State Records of New South Wales, 2/3267, p. 30.

[2 ] See also pp 73-77 in the same volume.

This was recorded by the Sydney Herald, 17 June 1833 as follows: ``Manning, Executor of Simes, v. Macvitie, Director of the Bank of Australia. - The opinion of the Court in this case as delivered by the Chief Justice, was, that the plaintiff had not perfected that title which would enable him to sue to recover the dividends from the Bank." See also Australian, 21 June 1833.

Published by the Division of Law, Macquarie University