The Revised Reports; Being a Republication of Such Cases in the English Courts of Common Law and Equity, from the Year 1785, as Are Still of Practical (Paperback)

This historic book may have numerous typos and missing text. Purchasers can usually download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1906 edition. Excerpt: ... Burnes taking it here, as it is raised by the record, but I am of opinion that Pennell. it was properly abandoned below, because it is untenable. Looking at the seventeenth and the preceding article, it is quite clear that the subscription in question is a duty cast upon the purchaser for the benefit of the Company, and that he cannot resile from the contract because he has not performed it. If the deed of transfer stands, and Mr. Burnes had become a partner, there can be no defence to the action for calls. Every thing depends therefore on 18 whether the statements made by him in the action of reduction, are relevant to support the reductive conclusion thereof." As to that, facts must be averred with reasonable precision, facts which, if proved, would be sufficient to support the reductive conclusions of the summons. It is not enough to set forth general allegations of fraud, for by such allegations a party cannot take advantage of his own default. On the 2nd of December, 1842, there was a regular deed executed, to which Mr. Burnes was a party, and by which, with his consent, and with the privity and sanction of the Company, the fifty shares were regularly transferred to him. Therefore it became his duty to see that the form specified in the 17th article was complied with. From his default, the Company might have said that he was "not to be deemed or entitled to exercise any of the rights of a partner," but he is forbidden to avail himself of any such plea. We come, therefore, to the question which the Lord Ordinary decided, apparently on the ground of the fraud charged against the defenders. Facts must be alleged which show that such a fraud has been practised by them upon him as will entitle him to the judgment which he prays....