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5. The arguments consequently have been limited to a discussion on the validity of these votes.

6. Now, the first argument urged against them is that they in fact were never recorded. Though there may have been an absence of formality, I think there is no doubt that Mr. Macaulay intended to vote, and in fact did vote, as a proxy: the proxy papers, under which he purported to act, were placed in the basket appropriated to the votes in favour of the resolution: the proxy papers in opposition to the resolution were placed in another basket: and the scrutineers in the presence of Mr. Shroff, who practically was the representative of the dissentients, treated the votes represented by the proxy papers as properly given, without any protest. Had objection been taken at the time, any want of formality might have been, and doubtless would have been, remedied, and it would not under these circumstances be right to treat the votes as not actually given. The articles impose no particular procedure and the course followed was, in any opinion, sufficient for the purpose of the poll then being taken. Therefore, this objection cannot prevail.

8. But to this it is answered, that one attesting-witness suffices, and that this requirement has been observed, because, even if Mr. Wallace's attestation was invalid, there has been a good attestation by Mr. Doggett. In my opinion this is a good answer, for Mr. Doggatn was none the less an attesting witness because he also was a certifying notary, and reading his notarial attestation 1 think the proxy paper was attested by him within the meaning of Article 63.

9. This brings mo to the far more serious question, whether Mr. Macaulay's appointment as a proxy was in compliance with the Articles of Association. We have to be satisfied on this point, for, as stated in Harben v. Phillips (1891) 2 Q.B. 151 at p. 153 the right of a shareholder to vote by proxy depends on the 'contract between himself and his co-shareholders, and where parties have a right depending upon the contract between them and other parties, there all the requisitions of the contract as to the exercise of that right must be followed.

11. Then again the instrument under which Mr. Macaulay purports to have acted is not in the form expressly sanctioned by the Articles of Association: it is a power-of-attorney, not limited to an authority to vote, but providing for a variety of other matters. So far as it relates to the power to vote it runs as follows:

Know all men by these presents that I...of...do hereby nominate, constitute and appoint Lewis Alexander Wallace, Alexander Falconer Wallace, John Annon Bryce, Henry Adair Richardson, and Michael Russel Dyer, and all persons who at any time during the oontinuanoe of this Power of Attorney may be partners in the firm of Wallace & Co. of Bombay, howsoever that firm may be constituted, and Frederick Liddell Steel and William Robert Macdonell, Assistants in the said firm, and in the absence from Bombay of all the said persons then the persons or person for the time being holding the procuration of the said firm and managing the said business jointly and each of them severally to be my attorneys or attorney for me and on my behalf and to be my proxy to vote for me and on my behalf at any meeting or meetings of the said existing corporation or any such new corporation to be formed as aforesaid during the continuance of this power.

Batty, J.

19. Inasmuch as the right to vote by proxy is not a right claimable under the ordinary law, but is derived from the terms of the "Articles of Association," it is essential that the conditions imposed by those articles should be strictly fulfilled.

20. Article 65 runs as follows: "No person shall be appointed or have authority to act as a proxy who is not a share-holder in the Company."

21. This, in its plain grammatical meaning, seems to require that the prescribed qualification must exist both at the time when the appointment is made and also at the time when the authority to act under it is exercised. Such a construction would, of coarse, be fatal to an appointment in future of a person not qualified in prsenti.