Page images
PDF
EPUB

LAW REVERSIONARY INTEREST

VOL. XLII., No. 8,
SOCIETY, LIMITED

The Solicitors' Journal and Reporter. 24, LINCOLN'S INN FIELDS, W.C.

LONDON, DECEMBER 25, 1897. Capital

£400,000

ESTABLISHED 1853.

...

Debentures and Debenture Stock

£180,000 REVERSIONS BOUGHT.

LOANS MADE THEREON. Proposal Forms and full information may be had at the Society's Offices.

W. OSCAR NASH, F.I.Ä., Actuary.

The Editor cannot undertake to return rejected contributions, and copies should be kept of all articles sent by writers who are not on the regular staff of the JOURNAL.

PARTRIDGE & COOPER,

131 136 137 137

"... 139 ........ 139

134

133

132

134

119

127

X

X

LAW and PARLIAMENTARY

Contents.
PRINTERS and STATIONERS.

CURRENT TOPICS

125 NEW ORDERS, &c. CONSPIRACY AS A CAUSE OF ACTION ... 128 THE LAND TRANSFER ACT, 1897.

COMPANIES WINDING-UP DURING THE LEGAL News LAW WRITING ON THE PREMISES BY PERMANENT STAFF.

LEGAL YEAR 1896-1897

129 WINDING UP NOTICES REVIEWS

131

CREDITORS' NOTICES................... CORRESPONDENCE

131 BANKBUPTOY NOTIORB.........
191 & 192, FLEET-STREET, and 1 & 2, CHANCERY-LANE, E.C.
THE OLDEST & WEALTHIEST EXISTING MORTGAGE INSURANCE OFFICE.
THE LAW GUARANTEE AND TRUST SOCIETY,

Cases Reported this Week.
LIMITED.

In the Solicitors' Journal. West London Syndicate (Lim.) (Appel

lants) v. The Commissioners of Ioland Attorney-General v. Earl Grey....

Revenue (Respondents) SUBSCRIBED CAPITAL £1,000,000. PAID-UP - £100,000.

Attorney - General New York

Breweries Co. (Lim.)
FIDELITY GUARANTEES OF ALL KINDS. ADMINISTRATION AND LUNACY | Dominion Brewery Co. (Lim.) v. Foster 133

In the Weekly Reporter.

Fancett v. Bierman BONDS. MORTGAGE, DEBENTURE, LICENSE, AND CONTINGENCY

Lewis and Another v. Burrell

135

Boulter v. Justices of Kent and Others 114 INSURANCE. TRUSTEESHIPS FOR DEBENTURE-HOLDERS, &c.

Lole and Another v. Betteridge;

Ecroyd v. Coulthard..
Mallam, Claimant..

132

Hunt and Another v. Fripp and Others 125

135 Piers, Re. Ex parte Piers v. Read

London and North-Western Railway HEAD OFFICE: 49, Chancery-lane, W.C. | CITY OFFICE: 56, Moorgate-street, E.C

Reg. v. Cox

135

v. Rural District Council of Runcorn 121 Reg. v. Justices of West Riding of

Reg. v. Burton and Another (Justices). IMPORTANT TO SOLICITORS

Yorkshire...

135

Ex parte Young..
In Drawing LEASES or MORTGAGES of

LICENSED PROPERTY
To see that the Insurance Covenants include a policy covering the risk of

CURRENT TOPICS.
LOSS OR FORFRITURE OF THE LICENSE.
Suitable clauses, settled by Counsel, can be obtained on application to

THE FOLLOWING are the names and dates of call to the bar of THE LICENSES INSURANCE CORPORATION AND the new Queen's Counsel: Mr. WARRINGTON Baden-Powell, GUARANTEE FUND, LIMITED,

1876, Northern Circuit, and Mr. ROBERT SHARP BORGNIS 24, MOORGATE STREET, LONDON, E.C.

HAMMOND-CHAMBERS, 1879, Midland Circuit. Mortgages Guaranteed on Licensed Properties promptly, without special valuation and at low rates.

IT is not surprising that the regret which is felt about the LEGAL AND GENERAL LIFE ASSURANCE

death of Sir FRANK LOCKWOOD should be infinitely greater and SOCIETY.

more widespread than that which was over manifested on the ESTABLISHED OVER HALF A CENTURY.

demise of the greatest lawyer who was only a lawyer. Sir

FRANK was neither a great lawyer nor, perhaps, altogether a 10, FLEET STREET, LONDON.

great advocate ; but he was a clever, acute, and genial man of

the world, well liked by his brethren at the bar, and by the FREE,

bench; popular in society and in the House of Commons; and SIMPLE,

a particular favourite in the theatrical and newspaper world. In the present day this last circumstance is in itself a title to fame. But Sir FRANK had qualifications of no mean order as an advocate.

He had a fine voice and a good presence, and was capable of that kind of eloquence, based on real, personallyfelt indignation at wrong or treachery, which is the most effective of all weapons with a jury. We have, moreover, heard men of experience, very well qualified to judge, speak in the highest terms of his ability and shrewdness in the conduct of

cases. His death will be felt as a great loss by both branches A ND

of the profession.

SECURE,
FUNDS

£3,000,000.
INCOME

+373,000.

THE RETIREMENT from practice of Mr. GRAHAM HASTINGE, YEARLY BUSINESS £1,000,000. BUSINESS IN FORCE · $11,000,000: Q.C., has called forth public expressions of deep feeling from

Mr. Justice STIRLING; and no one who knows the character of

the learned counsel, and the way in which he has done his work, The Right Hon. Lord HALSBURY (Lord High Chancellor of England). The Hon. Mr. Justice KEKEWICH.

will say that this very unusual tribute was undeserved. For å The Right Hon. Sir JAMES PARKER DEANE, Q.C., D.C.L. WILLIAN WILLIAMS, Esq.

great many years he has been an example of a conscientious RICHARD PENNINGTON, Esq.

and skilful advocate ; always fully acquainted with his case and

quick in grasping its points, but, while doing his utmost for his Bacon, His Honour Judge.

Masterman, Henry Chauncy, Esq.
Davey, The Right Hon. Lord.
Mathew, The Mr. Justice.

client, careful that the court should not be in any way misled, Deane, The Right Hon. Sir James Parker, Meek, A. Grant, Esq. (Devizes).

either as to facts (in which he did not differ from his brethren) Q.C., D.C.L.

Mellor, The Right Hon. John W., Q.C., Ellis, Edmund Henry, Esq.

or as to the law. Most judges learn, after a short time, who, Finch, Arthur J., Esq.

Mills, Richard, Esq.
Frere, Geo. Edgar, Esq.
Morrell, Frederic P., Esq. (Oxford).

among the leading counsel practising before them, can be relied Garth, The Right Hon. Sir Richard, Q.C. Pennington, Richard, Esq.

on to assist the court. Mr. Hastings was pre-eminently one of Harrison, Chas., Esq., M.P.

Rowcliffe, Edward Lee, Esq. Healey, C. E. H. Chadwyck, Esq., Q.C. Saltwell, Wm Henry, Esq.

this class, and it is not wonderful that Mr. Justice STIRLING Johnson, Charles P., Esq. Williams, C. Reynolds, Esq.

should deplore his loss. In the midst of all the pressure of Kekewich, The Hon. Mr. Justice.

Williams, Romer, Esq.
Ludlow, The Right Hon. Lord.
Williams, William, Esq.

his heavy practice as apparently leisurely in manner as if he

THE

PERFECTED SYSTEM

OP

LIFE
ASSURANCE.

[ocr errors]

TRUSTERS.

DIRECTORS.

M.P.

had nothing in the world to trouble him, Mr. HASTINGS went wise, I am content," replied THOROUGHGOOD, and delivered the through his work from day to day with the utmost apparent deed to CHICKEN. It was held that the deed was not his deed, ease; by his invariable calmness and courtesy smoothing away and certain matters were resolved by the court from which, obstacles to the progress of the business before the court, and taken together with other contemporaneous cases (Manser's case, by his accurate knowledge of his case facilitating argument 2 Rep. 3a; Pigot's case, 11 Rep. 28a), it appears that a person and decision. But this apparent ease (even given extensive who executed a deed without either reading it, or, if illiterate, legal knowledge and experience) could only be the result of without having it read or its effect stated to him, did so at his anxious and painstaking labour, and for years it has been a own risk; but if there was fraud on the part of the person puzzle to the Chancery Bar when and how the time for this reading or explaining the deed, whereby the party was deceived labour was obtained; but somehow or other it was invariably as to its true nature, this excused him. obtained. Everyone who knows Mr. HASTINGS will concur in Mr. Justice STIRLING's wish that he may have many years of health in which to enjoy his well-earned leisure.

THE RULE, however, that a literate person who executes an instrument without reading it does so at his own risk has in modern

times been relaxed, and it is now well settled that the deed is yoid A POINT of some importance to county court suitors and solici- if its execution has been obtained by fraud, provided there has not tors was determined by the Queen's Bench Division in the recent been negligence on the part of the person executing it; though case of Lewis v. Burrell. The question raised was, shortly, it is otherwise if the fraud is collateral to the instrument and whether, in an action in the county court by a solicitor to recover does not affect its execution. Non est factum, said Lord ABINGER, the amount of his bill of costs, the defendant could, without C.B., in Mason v. Ditchbourne (1 Moo. & R. 460), is a plea which giving statutory notice of defence, set up at the trial that the will let in evidence of any fraud in the execution of the instruplaintiff had not complied with the requirements of the Solici- ment declared upon, as if its contents were misread, or a different tors Act, 1843, 8. 37, and therefore could not recover. It deed were substituted for that which the party intended to was held by the court (GRANTHAM and CHANNELL, JJ.) that execute. But the Chief Baron declined to admit evidence that this could not be done, as the case_was clearly governed by ord. the instrument had been obtained by fraudulent misrepresenta10, r. 10, of the County Court Rules, 1889, which provides tion not affecting the party's understanding of its contents. Of that notice of defence shall be given by a defendant where the cases which have established the modern doctrine, the most he intends to rely at the trial upon such grounds of defence as important is Foster v. Mackinnon (17 W. R. 1105, L. R. 4 O.P. are mentioned in rule 18 of the same order, which prescribes 704), and on this Lord RUSSELL based his judgment in the that when in any action the defendant relies upon any statutory present case. In Foster v. Mackinnon the defendant, who was defence, or any defence of which he is required by any statute à gentleman far advanced in years, was induced to put his to give notice, he shall in his statement set forth the year, name upon the back of a bill of exchange by the fraudulent chapter, and section of the statute, or the short title thereof, and representation of the acceptor that he was signing a guarantee. the particular matter upon which he relies. As the case under If a blind man, said ByLES, J., in delivering the judgment of the consideration is, it seems, the first of the kind that has arisen court, or a man who cannot read, or who for some reason (not under the Solicitors Act, 1813, it is, to that extent at all events, implying negligence) forbears to read, has a written contract a case of first impression, though the principle involved is one falsely read over to him, the reader misreading to such a which has often been affirmed, and notably in the recent case of degree that the written contract is of a naturo altogether Conroy v. Peacock (45 W. R. 502; 1897, 2 Q. B. 6), which is a different from the contract pretended to be read from the decision under the Employers' Liability Act, 1880, s. 4. paper afterwards signed; then, at least if there be no

negligence, the signature so obtained is of no force. So

in National Provincial Bank of England v. Jackson (34 THE DECISION of Lord RUSSELL, C.J., in the remarkable case W. R. 597) COTTON, L.J., stated the rule of law to be that if a of Lewis v. Clay appears to be amply supported by authority, person, in executing a deed, was misled by the misstatements though it is not unimportant to notice that upon the point in of the grantees or others, in such a way that he did not know dispute the later cases differ from what was at one time taken to what the instrument was, the deed was not his deed at all. be the law, and are much more favourable to persons who execute The qualification introduced by BYLES, J., that the deed must documents without taking the precaution to ascertain their nature. be executed without negligence, leaves open in each case the In Lewis v. Clay it appeared from the evidence that Lord WILLIAM question whether there was negligence or no, and it may well NEVILL prepared two promissory notes for £8,000 and £3,113 be that, under certain circumstances, the omission to read the 1 espectively in favour of the plaintiff, for which he wanted a instrument may in itself be negligence. But in Lewis v. Clay responsible maker. He took them to Mr. CLAY, a friend of his this point was settled by the finding of the jury that the defendwho had just come of age, and represented that he wanted him ant did not, under the circumstances, attach his signature to the to witness a document. To ClAy's inquiry as to the nature of documents without due care. Lord RUSSELL held, accordingly, the document, Lord WILLIAM replied that it related to private that the notes were not the notes of the defendant, and that he matters touching divorce proceedings then pending, and that he was in no way liable on them. The plaintiff being the payee would rather not show it. Clay insisted no further, and, named in the notes, no question arose as to what would have according, to the evidence, signed his name several times been the position of a third party who had become the holder in through holes cut in blotting paper which was laid over due course; but, in the opinion of the Lord Chief Justice, he the documents. Lord WILLIAM, having in this manner-at would, notwithstanding the provisions of the Bills of Exchange least, he has not so far contradicted OLAY's story-obtained Act, 1882, have had no better right than the plaintiff. The signatures to the notes, obtained value for them from notes being void from the beginning, no subsequent dealing the plaintiff.

When the plaintiff came to sue upon them could establish them against the defendant. CLAY raised the defence that the notes were not his notes. The books, of course, are full of cases in which a party has sought by such a plea to avoid the effect of an execu CONSIDERABLE interest has been taken by the public in the tion of a deed or other instrument fraudulently obtained, but death which took place in the course of a recent boxing match originally the law was only disposed to be indulgent in cases at a London club. It was undoubtedly a matter which required where the fraud was practised upon an illiterate person. This careful investigation; but probably no one who read the is illustrated by Thoroughgood's case (2 Rep. 9a), where the evidence given at the inquest and before the magistrate at Bowplaintiff, THOROUGHGOOD, had executed a release to CHICKEN of street could believe that thero was any chance of the defenall his interest in certain land on the understanding that the dants being convicted of manslaughter, even if they had been deed was only a release of arrears of ront due from CHICKEN. sent for trial. There was no evidence of anything brutal THOROUGHGOOD was an illiterate man, and, just as the deed having occurred, or of any real violence. It was proved that was about to be read to him, a stranger took it from the reader there had been two thousand similar contests previously at the and misstated its effect as just indicated. "If it be no other club, and that in no one of these had any serious injury been

..

suffered. Of course a fight is none the less a fight because the that a promoter is making a secret profit when his profit is parties wear gloves. This was established in the case of Rog. v. disclosed to the directors, who are the proper representatives of Orter (43 J. P. 72), in which the Court of Crown Cases Ro- the company. If there is any design of withholding informaserved held that if the parties met intending to fight till one gave tion from the shareholders the case would, of course, be differin from exhaustion or injury, the contest was a fight and a ont. The decision favours too much the apathy of investors, breach of the law, whether they fought in gloves or otherwise. Often a man takes up shares without troubling himself to make Where, however, the combatants box under such rules that inquiries; but if his interest is sufficiently large to make it serious injury is unlikely, and where the contest is an amicable worth his while, he will be careful to examine the contracts trial of skill and endurance, and is not intended to be prolonged relating to the formation of the company. His failure to do so till one is incapable of continuing, there can be nothing un- should not have the effect of depriving the promoter of his fees. lawful in the sport. Some danger is inseparable from boxing, As the matter stands, the promoter is only safe if he specifies as it is from cricket, football, and many other manly pastimes. his remuneration in the prospectus. But in all such sports death or injury is of rare occurrence. If it were otherwise, if it could be said that death or injury were likely results, clearly such sports would be illegal. The law on

THE REPORT of the Commissioner of Metropolitan Police for the subject was lucidly stated by CAVE, J., in the well-known the year 1896 has recently been published in the form of a case of Reg. v. Coney (30 W. R. 678, 8 Q. B. D. 534). That Blue Book. It contains a great deal of interesting information, learned judge said: “The true view is, I think, that a blow and shows on the whole a satisfactory decrease in crime. The struck in anger, or which is likely, or is intended, to do corporal statistics for the City are, of course, not included in this report, hurt, is an assault, but that a blow struck in sport, and not but the district covered comprises an area of 688 square miles, likely nor intended to cause bodily harm, is not an assault, and and contains a population of nearly seven millions. In this that, an assault being a breach of the peace and unlawful, the district during the year 18,536 indictable offences were reported consent of the person struck is immaterial.” If this view is to the police. This is a decrease of nearly 1,500 as compared correct, a blow struck in a prize fight is clearly an assault; but with 1895, the numbers for which were nearly 1,000 lower than playing with single sticks, or wrestling, do not involve an for 1894. It is satisfactory to learn that this large diminution assault ; nor does boxing with gloves in the ordinary way, and took place almost entirely in crimes against property, which, as not with the ferocity and severe punishment to the boxers remarked by the Commissioner, are the only crimes which can deposed to in Reg. v. Orter. Although, however, the recent really be controlled by police action. This seems to show that match seems to have been conducted with fairness and legality, the police are growing more vigilant in watching known still most people will agree with Sir JAMES Vaughan in thinking criminals, and more successful in preventing crime. Probably that the introduction of valuable prizes in money is calculated no one will deny that it is more to the advantage of the public to give such a stimulus to a boxing match as to cause a danger- that a crime should be prevented than that the criminal should ous amount of passion and to tempt the competitors to use an be brought to justice after he has committed the offence. The illegal amount of force. When such prizes are offered it must number of burglaries and house-breakings also show a substanbe hard to prevent the combatants from getting out of control, tial decrease, and it is gratifying to find that in only one case and it must be difficult in many cases to draw the line between was a crime of this nature accompanied by personal violence. a lawful boxing match and an unlawful prize fight.

Both the number of summonses issued at the request of the police, and the number of apprehensions during the year show

an increase, the latter amounting to over ninety thousand. But A CORRESPONDENT calls our attention to the recent decision of as the majority of these were for more or less trifling matters, WRIGHT, J., in Re Sale Hotel and Botanical Gardens Co. (Limited) and as everything tends to show a decrease in the number of (Times, Dec. 15; Weekly Notes, Dec. 18), and comments on the serious offences, it may be taken that this increase points to hardship which promoters are likely to suffer under the prin greater efficiency on the part of the police. Twenty-one cases ciple there laid down. According to the facts as reported, it of alleged murder were investigated. "Out of these there were appears that the vendor to the company offered to A. and certain eloven trials on the capital charge, eight resulting in conother persons £2,000 if they could form a company to take over victions and three in acquittals. Five of the murderers his property. The company was formed, and A., who became evaded justice by taking their own lives. The remaining secretary pro tem., received £250 as his share of the promotion five were undiscovered, but of these three were cases of money. The prospectus contained the statutory particulars, women dying from the effects of illegal operations. It is that is, the dates and parties—of the agreement under which very satisfactory to learn that the new system of identifying this money was paid, and A. further disclosed the fact of his prisoners, which was started in 1890, and which is quite indepenreceipt of the money to the directors of the company. There dent of the Bertillon method, has turned out to be a great was no evidence that the purchase-money actually paid by the success, and that no less than 3,503 persons were identified by company was increased by the payment of the £2,000. WRIGHT, this means. Either cabmen are getting more honest or the J., held that the £250 was a secret profit made by A., which he public more careless, for the number of articles left in vehicles was liable to refund at the instance of the liquidator of the and deposited at the Lost Property Office by the drivers and company. The reference to the contract in the prospectus conductors of cabs and omnibuses shows an extraordinary was, the learned judgą hold, useless for the purpose of increase, and amounts in the year to no less than 38,025. Out giving notice to the shareholders, for it is notorious, he of this large number, however, strange to say, only half were observed, that shareholders seldom take the trouble to look claimed and restored to the owners. The list of these articles at the contracts so referred to, and the disclosure to the exhibits the usual astonishing variety, but it is rather startling directors was equally ineffectual, for they were themselves in the to find that a person can forget such a thing as a perambulator same position as A. But if this reasoning is good, how, our or a bicycle on a cab. Speaking of bicycles, it is interesting to correspondent pertinently asks, is a promoter to protect himself ? note that as many 1,608 persons were proceeded against by the Everyone who has to do with companies knows that there is a police during the year for furious riding, riding without lights, promoter, and that he has to be remunerated. Intending sub- &c. However clearly this report may point to a growth in the scribers to the company are entitled to know what the remunera- efficiency of the police in some directions, it can hardly be said tion is, and if they are dissatisfied they can abstain from joining. that there is any indication of an increase in detective power to But it has never been supposed that the promoter's remunera- koop pace with the increase in proventive power. We read that tion must be specifically mentioned in the prospectus. The the total value of the property stolen during the twelve months Legislature has, indeed, by section 38 of the Companies Act, was £131,713. Out of this, property to the value of £22,468 1867, expressly stated how notice of contracts is to be only, or about 17 per cent., was recovered. In the year before, given to the public, and although the section is not so the value of the property stolen was considerably greater, but drawn as to render this notice very effectual, it would soom over 29 per cont. in value was recovered. As to the proceeds of that parties entitled under the contracts ought to be able to burglaries and housebreakings, only 6 per cent. in value of the rely upon it as sufficient. Moreover, it can hardly be said property stolen was recovered. This seems a very small pro,

portion, and this part of the report will probably not be con- prepared to meet. When settling pleadings in salvage actions sidered as encouraging as the rest of it.

the pleader is often in an uncomfortable position, as salvors always insist on having the account of their services set out in

the most glowing terms, while the court insists that the facts of THE DECISION of the Court of Appeal in Ellis v. Pond and the the case should be stated as succinctly as possible. Bloomsbury Syndicate is an interesting addition to the cases relating to the mutual liabilities of a stockbroker and his principal. The stockbroker, as is well known, is, according to The rules of the Stock Exchange, directly responsible to the

CONSPIRACY AS A CAUSE OF ACTION. jobber with whom he is dealing in the transaction, and this is a The judgment delivered by DARLING, J., last Saturday in Huttley responsibility against which he must be indemnified by his v. Simmons furnishes an interesting supplement to the decision principal, but, for the right to indemnity to be enforced, it is of the House of Lords in Allen v. Flood. In Huttley v. Simmons, necessary that he should have suffered loss through some which was tried with a jury in November, the plaintiff, a cabdefault of the principal, and upon this ground the Court of driver, sued the defendant ŠIMMONS, who was the president of a Appeal (A. L. SMITH and COLLINS, L.JJ., RIGBY, L.J., diss.) strike committee of a trade union, and other persons who were allowed in part the appeal against the judgment of MATHEW, J. members of the union, for having induced a cab proprietor The defendants had employed the plaintiff to purchase large named Jones to refuse to give him employment. There was no quantities of Metropolitan District Railway Stock. By the 10th

By the 10th evidence against any of the defendants except Simmons, but as of November, 1896, which was a settling day on the Stock Ex- regards him the jury returned answers to the questions left to change, £100,000 of stock had been bought and taken up, the them upon which the judge would have been bound, upon the money being provided by the plaintiff, and £35,000 had been decision of the Court of Appeal in Flood v. Allen, to enter judg. bought and not taken up. It was agreed between the parties ment for the plaintiff. The jury found that SIMMONS induced that the latter stock should be carried over at the current the cab proprietor not to employ the plaintiff, and that he did price, 29}, till the next settling day, the 26th of November, this in order to injure the plaintiff and to procure an indirect and that the £100,000 of stock should not be sold till then. advantage, not indeed for the defendant himself, but for others A further amount of £14,000 was also bought on the for whom he was acting--that is, he did it maliciously in the 10th. The plaintiff becoming uneasy over the transaction, legal sense of the word. To avoid, however, the expense of an did not wait for the 26th, but sold the whole of the stocks appeal, should the House of Lords reverse the Court of Appeal on the 19th at 25. At the trial the jury found that, if he had in Allen v. Flood, Mr. Justice DARLING reserved his judgment. waited till the 26th, the price would have been 28, and that in

Upon the above findings it would have been a matter selling on the 19th he did not act with proper care and skill. of course to enter judgment for the defendant as soon as the MATHEW, J., held that the plaintiff was entitled to an indemnity decision of the House of Lords was given. The findings are from the defendants in respect of the whole of the stock, practically the same as those of the jury in. Allon v. Flood, and subject to deduction for the loss of £3 per £100 of stock incurred they disclose no cause of action in the plaintiff. No existing by selling on the 19th. The purchases had been made at prices contract was broken, nor any unlawful means used in preventing above 28, and judgment was entered for £4,151. But in the him from getting employment, and the finding of malice by Court of Appeal a distinction was taken between the £100,000 itself was insufficient. But in Huttley v. Simmons the jury of stock which had been paid for and taken off the market, and further found that the defendant conspired with others to the stock which had been carried over or only bought on the prevent the plaintiff from obtaining employment under JONES, 10th. In respect of the former, the transaction of purchase was and it was open, therefore, to argument that the conspiracy was complete so far as the broker was concert

erned, but the defendants

a cause of action, even though the House of Lords had deprived had failed to find the money for and to take up the shares, and malice of any such effect. Some countenance is lent to this consequently the broker's right of indemnity had arisen. But contention by a passage from the judgment of Lord Shand in in respect of the latter, the purchase was still inchoate. In respect Allen v. Flood: *Combination of different persons in pursuit of of shares which were to be carried over till the 26th .of Novem

a legitimate trade object occurred in the case of The Mogul ber, or were only bought for that day, the broker had never Steamship Co., and was there held to be lawful. Combination been in a position to call upon the defendants to take up shares for no such object, but in pursuit really of a malicious purpose and there had been no default by them. On the contrary, he to ruin or injure another, would, I should say, be clearly unhad, by selling on the 19th of November to a stranger, found lawful, but this case raisos no such question." another way of satisfying his liability to the jobber, and by his In spite, however, of this dictum, it seems that, so far as any own conduct he had excluded the defendants from the transac civil remedy is concerned, the fact of conspiracy gives no ground tion. Consequently the circumstances under which their liability of action. The case which most strongly suggests that such an to indemnify him would arise had not happened, and in respect action would lie is Gregory v. Duke of Brunswick (6 M. & Gr. of the £35,000 and £14,000 of stock the appeal was allowed. 953), where the plaintiff had been hissed off the stage, and he Prima facie' the broker has a claim on his client as soon as he alleged that this was done in pursuance of a conspiracy between effects a purchase for him, but the claim fails if the broker so the defendants. The fact of the conspiracy was left to the acts as to prevent the purchase from being completed.

jury by TINDAL, C.J., and was negatived by them, so that on the case as presented by the plaintiff he necessarily failed. But

the judgment of the Court of Common Pleas, delivered by COLTDURING THE hearing of the salvage case of The Persian Empire man, J., upon an application for a new trial on the ground of in the Admiralty Court, Mr. Justice BARNES strongly commented misdirection, has been taken as implying that the real ground of upon the length of the pleadings in the case. He pointed out action was malice, and that the conspiracy was only material as that only " facts” should be set out, and that evidence should evidence of malice (Pollock on Torts, 4th ed., p. 293 ; Clerk not be pleaded. The practice of setting out the account of the and Lindsell on Torts, 2nd ed., p. 24); and, in this view, the salvage services at great length has probably arisen from the result of Allen v. Flood is to show that the conspiracy is decision of Sir JAMES HANNEN in The Tsis (8 P. D. 228). It was altogether immaterial. If malice is not a ground of action, there decided that the form of statement of claim in Form No. 6 the use of conspiracy as evidence of malice is gone.

But of Appendix C. of the Rules of the Supreme Court, 1883, should even if Gregory v. Duke of Brunswick were an authority not generally be followed, but a fulser form should be used. that conspiracy could be a cause of action, it stands by The reason for this was apparent. The statements of claim in itself and is opposed to the tendency of authority both in this these actions are often admitted, and it would cause great country and in America. “ As a rule,” said BOWEN, L.J., in the additional expense if the plaintiffs, when the facts were Mogul case (37 W. R. 756, 23 Q. B. D., p. 616), “it is the admitted, were obliged to bring witnesses to expand the facts damage wrongfully done, and not the conspiracy, which is the summarized in the statement of claim, and the defendants were gist of actions on the case for conspiracy." In other words, to keep witnesses to meet facts which did not appear in the there is no cause of action unless, in pursuance of the conspiracy claim but which it would not be prudent for them to be un or agreemont, acts are done which would be unlawful if done

:

by an individual acting independently. The real cause of action be seen, to the circumstances with which DARLING, J., had to is the violation of the plaintiff's right, and the averment of deal in Huttley v. Simmons. Upon the findings of the jury, conspiracy does not strengthen the case. This principle runs apart from conspiracy, there was, according to the decision of through the judgments delivered in the House of Lords in the the House of Lords in Allen v. Flood, no cause of action. It Mogul case (40 W. R. 337; 1892, A. C. 25). The defendants in was left, therefore, for the action to be founded upon the conthat case had violated no right of the plaintiffs, and, conse-spiracy alone, and this was impossible. Judgment, therefore, was quently, the fact that they had acted in concert did not make necessarily entered for the defendant. Of course this examinathem liable. “If no legal right,” said Lord HALSBURY, "has tion of the authorities does not exhaust all that may be said been interfered with, and no legal injury inflicted, it is vain to on the subject. “A man,” said Lord BRAMWELL in the Mogul say that the thing might have been done by an individual, but case (1892, A. C., p. 45), “ may encounter the acts of a single cannot be done by a combination of persons. “As the law is person, yet cannot be fairly matched against several.” But, ro now settled,” said Lord Watson, “ I apprehend that in order to far as civil liability is concerned, it seems clear that such acts substantiate their claim the appellants must shew, either that must, apart from the combination, constitute an actionable the object of the agreement was unlawful, or that illegal wrong. methods were resorted to in its prosecution."

That conspiracy is useless if not followed by an act in itself wrongful was settled in America in Hutchins v. Hutchins (Bige

COMPANIES WINDING UP DURING THE LEGAL low's L. C. on Torts, p. 207). The declaration in that case

YEAR 1896-1897. alleged that the defendants by maliciously conspiring together

III. had induced the father of the plaintiff to revoke a will wherein The House of Lords has of late had its hands pretty full of he had devised certain real estate to the plaintiff. It was held

company cases. In one of them (Welton v. Saffery, 45 W. R. that this disclosed no cause of action. *. The allegation of a 508 ; 1897, A. C. 299) it deliberated much before coming to a conspiracy,” said NELSON, C.J., "is of no importance so far as decision from which Lord HERSCHELL dissented. The question is respects the cause and ground of the action. A simple con- thus shortly stated in the argument of Mr. WELTON's counsel : spiracy, however atrocious, unless it resulted to actual damage “The question raised by this appeal was left undetermined by to the party, never was the subject of a civil action.

the Ooregum case (1892, A. C. 125), namely, whether the holders We may, therefore, lay out of consideration altogether the con- of shares issued at a discount are liable to calls for the adjustspiracy charged against these defendants, in endeavouring to ment of the rights of contributories inter 86, it being admitted ascertain if any foundation is laid for the action, and regard it as that they are liable to calls for the payment of the debts and the same as if the defendant HUTCHINS had alone committed the

costs of winding up.

The House hold that Mr. WELTON, the several grievances for which redress is sought.” This follows shareholder, was liable to calls made for the purpose of adjustthe opinion of Lord Holt in Savile v. Roberts (1 Lord Raym., p. ment, on the ground that it is ultra vires for a limited company 378), that " an action will not lie for the greatest conspiracy to issue shares at a discount, although authorized to do so by its imaginable if nothing be put in execution, but if the party be articles of association. damaged the action will sie; from whence it follows thať the

The doctrine of estoppel, as against a company in respect of damage is the ground of the action, which is as great in the paid up shares, has now been more clearly defined by the House present case as if there had been a conspiracy.". Damage, in of Lords. It was certainly generally supposed that the doctrine these passages, must be understood as meaning wrongful could only be invoked for the protection of a transferee, and not in damage, or damage following upon the invasion of a right.

favour of an allottee. Tako up any recent edition of a textA singular application of this principle occurred in Ireland in book prior to 1896, and it is clear that this was understood as Kearney v. Lloyd (26 L. R. (Ir.) Q. B. 268). The plaintiff, who the rule. One writer says: “If the shareholder have certificates had been the Protestant incumbent of a parish, brought an given him stating that the shares are held by him as fully paid action against certain of his former parishioners, alleging that up, and he afterwards bona fide dispose of his shares as such, the they had conspired to prevent subscriptions being given to a company cannot make the innocent transferee liable for calls; he voluntary fund upon which his income was partly dependent. is entitled to rely upon the company's admission of payment”; The jury found that the defendants combined and agreed among the authority cited being Burkinshaw v. Nicolls (26 W. R. 819, themselves to withdraw their own subscriptions, though they 3 App. Cas. 1004). did not induce other parishioners not to contribute ; that the In a decision which was much doubted at the time, Mr. Justice combination and agreement was partly with the intention of VAUGHAN WILLIAMS held that the doctrine applied in the case injuring the plaintiff and obliging him to leave the parish, and of, and so to protect, an original allottee: Parbury's case (44 partly with the intention of promoting the religious interests of W. R. 107; 1896, 1 Ch. 100). In so holding, the learned judge the parish; that subscriptions were, by reason of such combina- followed the principle laid down by JAMES and THESIGER, L.JJ., tion, with held from the fund, and that the plaintiff was thereby in Re British Farmers' Pure Linseed Cake Co. (26 W. R. 334, 7 injured and was obliged to leave the parish. If, therefore, Ch. D. 533), the name in the Court of Appeal of the case which, mere conspiracy, followed by pecuniary damage to the plaintiff, when it went to the House of Lords, was called Burkinsharo v. but without any violation of his legal rights, was sufficient to Nicolls. Parbury's case was decided in the teeth of the following found a cause of action, here were the necessary elements. The statement in another book on company law : "The original court, however, presided over by Palles, C.B., took a contrary allottee and (subject to what follows) overy subsequent transview, and held, in accordance with the authorities, that the acts feree with notice holds the shares as unpaid "; and Mr. Justice of the plaintiffs did not constitute any legal injury to the VAUGHAN WILLIAMS says: “I am asked to say that, because of plaintiff, and that the action was not maintainable. Conspiracy, that, the original allottee, whether he had or had not knowledge said the Chief Baron, is available in such action only for the that the shares were not paid up, and whether he acted or did following purposes : (1) To make the defendants jointly respon- not act on the faith of the representation in the certificate, is sible for the acts done in pursuance of it; and (2) to indicate liable because he is an original allottee. So to hold would not the alleged malicious or wrongful intention which governed be giving effect to the general law of estoppel, or to JAMES,

That I am right in this," he continued, “is, I LJ.'s, statement that the section does not in the slightest degree believe, beyond cavil. If anything is well settled in law it is alter the general law of the land as to estoppel by conduct or that in cases of this description, in which the old writ of con- representation.” spiracy did not lie, the gist of the action is not the conspiracy This case was cited before the Court of Appeal in Ex parte itself, but the wrongful acts done in pursuance of it. The cause Bloomenthal (44 W. R. 577 ; 1896, 2 Ch. 525), another case of of action must exist, although the allegation of conspiracy be an original allottee. The Court of Appeal there held that the struck out; and the acquittal of all the defendants but one will shareholder knew enough to be prevented from saying that the not, as it would were the conspiracy a material part of the company was estopped, but the decision in Parbury's case was cause of action, prevent judgment against the remaining defen- approved. At this stage the text-writers said one thing, to dant if found guilty.”

which a decision of a court of first instance and a dictum of the This very clear statement of the law exactly applies, it will I Court of Appeal were opposed.

those acts.

« PreviousContinue »