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Colonial Cases

Mog v. Schutz and Fleming, 1874

[company law]

Mog v. Schutz and Fleming

Judicial Committee of the Privy Council
16 December 1874
Source: The Times, 17 December, 1874

(Present - Sir J. W. Colville, Sir B. Peacock, Sir M. Smith, and Sir R. P. Collier.)
  This was an appeal from the Supreme Court at Constantinople, made in July, 1873.
  Mr. E. E. Kay, Q.C., and Mr. W. Arnold Lewis were counsel for the appellant; Sir Henry James, Q.C., and Mr. Graham Hastings for the respondents.
  In 1868 the late Mr. Henry Bulkely, of Alexandria, was the holder of 1,000 shares in the Alexandria and Ramle Railway Company, which he had mortgaged to the Egyptian Commercial and Trading Company. The latter company were threatening to sell them, to repay their advance, and Mr. Fleming, one of the respondents, who represented Mr. Bulkeley, made an arrangement with a Mr. Cesar Tortilla to purchase the shares from the Company.  The price was £10 5s. per share, and it was stipulated that in case of the sale or transfer of the shares within a year Mr. Fleming should receive 60 per cent on the net profit. On the other hand, Mr. Fleming was to pay Mr. Tortilla £1,230 a year interest on the amount expended. Mr. Tortilla died within the year, and Mr. Fleming gave his executor, Mr. Mog, the appellant, notice to sell the shares, which he refused to do on the ground of the death of their owner. In February, 1876, Mr. Bulkeley and Mr. Fleming gave notice to the Alexandria and Ramle Railway Company not to pay the dividend to any persons but themselves, and in November of that year they received a dividend of £1 per share. Owing to the disputes between the parties as to which of them the dividends were to be paid to, the Railway Company called upon them to interplead and settle between themselves their rights to the dividends, and in July, 1873, after some preliminary litigation, the Consular Court at Alexandria restrained the appellant, Mr. Mog, from bringing any action against the company for the dividends, and ordered the company to pay them to Mr. Fleming.  Against this decision the present appeal against Mr. Schutz, as representing the company, and Mr. Fleming was initiated.
  For the appellant it was contended that Mr. Tortilla was the sole owner of the shares, inasmuch as no sale or transfer was made within one year; that if he had been a mortgagee only he was entitled to the dividends until the shares were actually redeemed, and that interpleader was inapplicable, having regard to the nature of the question and the legal position of the parties, and because the subject matter in dispute between Fleming and the appellant was  not the same. On the other hand, it was urged that Mr. Tortilla was a mortgagee only, and that the request to sell the shares was made within the year.
  Their Lordships, in the result, reversed the decision of the Court below, with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School