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LEGAL AND GENERAL LIFE ASSURANCE
SOCIETY.
ESTABLISHED OVER HALF A CENTURY.
.0, FLEET STREET, LONDON.

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The Solicitors’ Journal and Reporter. LONDON, DECEMBER 25, I807.

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

Cnnuimr Tomas ...... ...................... .. 126 Coxsriiulrrr A5 A Cmss or ACTION... 128 COMPANIES WINDING-UP Dnniso Tin:

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Contents.

Nlw Osoims, &0. ......................... .. 181 Tim LAND Tssssrsa Acr, 1897... 188 181

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LIGAL Nnws .......... ..

IAUIAL YEAR 1898-1897 129 Wnrnuro Us Norioizs 137 Rsvisws ..................... .. .. 131 Gai|nITons'No'ri0ss .... .. 188 Connssroiinssos ............................ .. 131 Bssxnurrcr No-rIoIs........ 139

Cases Reported this Week. In the sold-{$078, Jo“,-”al_ ' West London Syndicate (Lim.) (Appel

Attorney-General v. Earl Grey .......... .. 134
Attoiney - General v. New York
Breweries Cc. (Lim.) ................... .. 132
Dominion Brewery Co. (Lim ) v Foster 138
Fancett v. Bier-man 134
Lewis and Another v. Burrel
Lole and Another v. Betteridge;

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lants) v. The Commissioners of Inland Revenue (Respondents) 133

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Mallam Clsimant..................... . 132 ‘"1 1"‘ “ SVPP 5“ . 917Piers, Re_' Ex pane P London a.nd_ North-Western Railway Re‘ v_ Cox _ v. Rural District Council of Buncurn 1.2l Rem v_ Jug‘; Reg. v. Burton and Another (Justices).

Yorkshire ................................... .. 135 EPHY°“n5 ---------------------------- -- 127

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Mastcrmun. Henry Channcy, Es Mathew. The Hon. Mr. Justice. Meek, A. Grant, Esq. (Devizcs). Mcllor, The Right. Hon. John

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IT IS not surprising that the regret which is felt about the death of Sir FRANK Locuwooi) should be infinitely greater and more widespread than that which was ever manifested on the demise of the greatest lawyer who was only a lawyer. Sir FRANK was neither a great lawyer nor, perhaps, altogether a. 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 bench; popular in society and in the House of Commons; and 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 elfectivo 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 of the profession.

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THE RETIREMENT from practice of Mr. GRAHAM Hssrnvos, Q,.G., 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, will any that this very unusual tribute was undeserved. For a. great many years he has been an example of a conscientious and skilful advocate ; always fully acquainted with his case and quick in grasping its points, but, while doing his utmost for his client, careful that the court should not be in any way misled, either as to facts (in which ho did not diller from his brethren) or as to the law. Most judges learn, after a short time, who, among the leading counsel practising before them, can be relied on to assist the court. Mr. HASTINGS was pre-eminently one of this class, and it is not wonderful that Mr. Justice STini.Ii\'o should deplore his loss. In the midst of all the pressure of his heavy practice as apparently leisurely in manner as it he

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had nothing in the world to trouble him, Mr. HASTINGS went through his Work from day to day with the utmost apparent ease; by his invariable calmness and courtesy smoothing away obstacles to the progress of the business before the court, and by his accurate knowledge of his case facilitating argument and decision. But this apparent ease (even given extensive legal knowledge and experience) could only be the result of anxious and painstaking labour, and for years it has been a puzzle to the Chancery Bar when and how the time for this labour was obtained; but somehow or other it was invariably obtained. Everyone who knows Mr. Hssrnves will concur in Mr. Justice SriaLnvc’s wish that he may have many years of health in which to enjoy his well-earned leisure.

A POINT of some importance to county court suitors and solicitors was determined by the Queen's Bench Division in the recent case of Lewis v. Bun-ell. The question raised was, shortly, whether, in an action in the county court by a solicitor to recover the_amount of his bill of costs, the defendant could, without giving statutory notice of defence, set up at the trial that the plaintiff had not complied with the requirements of the Solicitors Act, 1843, s. 37, and therefore could not recover. It was held by the court (GRANTHAM and Crisivivnnn, JJ.) that this could not be done, as the case was clearly governed by ord. 10, r. 10, of the County Court Rules, 1889, which provides that notice of defence shall be given by a defendant where he intends to rely at the trial upon such grounds of defence as are mentioned in rule 18 of the same order, which prescribes that when in any action the defendant relies upon any statutory defence, or any defence of which he is required by any statute to give notice, he shall in his statement set forth the year, chapter, and section of the statute, or the short title thereof, and the particular matter upon which he relies. As the case under consideration is, it seems, the first of the kind that has arisen under the Solicitors Act, 1813, it is, to that extent at all events, a case of first impression, though the principle involved is one which has often been aflirmed, and notably in the recent case of Conroy v. Paa-cock (45 W. R. 502; 1897, 2 Q. B. 6), which is a decision under the Employers’ Liability Act, 1880, s. 4.

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THE nncisioiv of Lord Russi-11.1., C.-T., in the remarkable case of Lewes v. Clay appears to be amply supported by authority, though it is not unimportant to notice .that upon the point in dispute the later cases differ from what was at one time taken to be the law, and are much more favourable to persons who execute documents without taking the precaution to ascertain their nature. In Lama v. Clay it appeared from the evidence that Lord WILLIAM NnvIi.L_ prepared two promissory notes for £8,000 and £3,113 iespectiyely in favour of the plaintifi, for which he wanted a responsible maker. He took them to Mr. CLAY, a friend of his who_had just come of age, and represented that he wanted him to witness a document. To Ci.1iY’s inquiry as to the nature of the document, Lord Wii.i.i.-iii replied that it related to private matters touching divorce proceedings then pending, and that he would.rather not shew it. CLAY insisted no further, and, according to the evidence,_ signed his name several times through holes cut in blotting paper which was laid over the documents. Lord WILLIAM, having in this manner—at least, he has not so far contradicted CLAY’s story—obtained signatures to the notes, obtained value for them from the plaintiff. \Vhen the plaintiff came to sue upon them 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 suc‘i a plea to avoid the effect of an executio_n_of a deed or other instrument fraudulently obtained, but originally the law was only disposed to be indulgent in cases where the fraud was practised upon an illiterate person. This is illustrated by T/zorou_qli_qoorl’s case (2 Rep. 9a), where the plaintiff, Tiionouoimoon, had executed a release to Cnicicniv of all his interest in certain land on the understanding that the

eed was only a release of_ari-ears of rent due from Cnioxsiv. Clnononeneoon was an illiterate man, and, just as the deed was about to b_e read to him, a stranger took it from the reader and misstated its effect as just indicated. “If it be no other

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wise, I am content,” replied TIIOROUGHGOOD, and delivered the deed to CHICKEN. It was held that the deed was not his deed, and certain matters were resolved by the court from which, taken together with other contemporaneous cases (zlfanm-‘i case, 2 Rep. 3a; Plqofls case, 11 Rep. 28a), it appears that a person who executed a deed without either reading it, or, if illiterate, without having it read or its effect stated to him, did so at his own risk; but if there was fraud on the part of the person reading or explaining the deed, whereby the party was deceived as to its true nature, this excused him.

Tnr: nuns, 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 void if its execution has been obtained by fraud, provided there has not been negligence on the part of the person executing it ; though it is otherwise if the fraud is collateral to the instrument and does not affect its execution. Non eat faclum, said Lord Anmoiin, C.B., in Mason v. Ditchboume (1 Moo. & R. 460), is a plea which will let in evidence of any fraud in the execution of the instrument declared upon, as if its contents were misread, or a different deed were substituted for that which the party intended to execute. But the Chief Baron declined to admit evidence that the instrument had been obtained by fraudulent misrepresentation not affecting the party’s understanding of its contents. Of the cases which have established the modern doctrine, the most important is Foster v. llackinnon (17 W. R. 1105, L. R. 4 C. P. 704), and on this Lord Rnssnm. based his judgment in the present case. In Foster v. Jllackinnon the defendant, who was a gentleman far advanced in years, was induced to put his name upon the back of a bill of exchange by the fraudulent representation of the acceptor that he was signing a guarantee. If a blind man, said Buns, J., in delivering the judgment of the court, or a man who cannot read, or who for some reason (not impl ing negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper afterwards signed ; then, at least if there be no negligence, the signature so obtained is of no force. So in .Nat1'onal Provincial Bank of England v. Jackson (34 W. R. 597) COTTON, L.J., stated the rule of law to be that if a person, in executing a deed, was misled by the misstatements of the grantees or others, in such a way that he did not know what the instrument was, the deed was not his deed at all. The qualification introduced by BYLES, J., that the deed must be executed without negligence, leaves open in each case the question whether there was negligence or no, and it may well be that, under certain circumstances, the omission to read the instrument may in itself be negligence. But in Lewis v. Clay this oint was settled by the finding of the jury that the defendant did not, under the circumstances, attach his signature to the documents without due care. Lord RUSSELL held, accordingly, that the notes were not the notes of the defendant, and that he was in no way liable on them. The plaintiff being the payee named in the notes, no question arose as to what would have been the position of a third party who had become the holder in due course; but, in the opinion of the Lord Chief Justice, he would, notwithstanding the provisions of the Bills of Exchange Act, 1882, have had no better right than the plaintiff. The notes being void from the beginning, no subsequent dealing could establish them against the defendant.

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CONBIDERABLE interest has been taken by the ublic in the death which took place in the course of a recent boxing match at a London club. It was undoubtedly a matter which required careful investigation; but probably no one who read the evidence given at the inquest and before the magistrate at Bowstreet could believe that there was any chance of the defendants being convicted of manslaughter, even if they had been sent for trial. There was no evidence of anything brutal having occurred, or of any real violence. It was proved that there had been two thousand similar contests previously at the club, and that in no one of these had any serious injury been

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suffered. Of course a fight is none the less a fight because the parties wear gloves. This was established in the case of Reg. v. Ortvr (43 J. P. 72), in which the Court of Crown Cases Reserved held that if the parties met intending to fight till one gave in from exhaustion or injury, the contest was a fight and a breach of the law, whether they fought in gloves or otherwise. Where, however, the combatants box under such rules that serious injury is unlikely, and where the contest is an amicable trial of skill and endurance, and is not intended to be prolonged till one is incapable of continuing, there can be nothing unlawful in the sport. Some danger is inseparable from boxing, as it is from cricket, football, and many other manly pastimes. 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 subject was lucidly stated by CAVE, J., in the well-known case of Rog. v. Coney (30 W. R. 678, 8 Q. B. D. 534). That learned judge said: “The true view is, I think, that a blow struck in anger, or which is likely, or is intended, to do corporal hurt, is an assault, but that a blow struck in sport, and not likely nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial.” If this view is correct, a blow struck in a prize fight is clearly an assault; but playing with single sticks, or wrestling, do not involve an assault; nor does boxing with gloves in the ordinary way, and not with the ferocity and severe punishment to the boxers deposed to in Reg. v. Orter. Although, however, the recent match seems to have been conducted with fairness and legality, still most people will agree with Sir JAMES VAUGHAN in thinking that the introduction of valuable prizes in money is calculated to give such a stimulus to a boxing match as to cause a dangerous amount of passion and to tempt the competitors to use an illegal amount of force. When such prizes are ofiered it must be hard to prevent the combatants from getting out of control, and it must be difiicult in m.any cases to draw the line between a lawful boxing match and an unlawful prize fight.

A CORRESPONDENT calls our attention to the recent decision of Wiiionr, J., in Ra Sale Hotel and Botanical Gardens Co. (Limited) (Times, Dec._15 ; Weekly Notes, Dec. 18), and comments on the hardship which promoters are likely to suffer under the principle there laid down. According to the facts as reported, it appears that the vendor to the company offered to A. and certain other persons £2,000 if they could form a company to take over his property. The company was formed, and A., who became secretary pro tem., received £250 as his share of the promotion money. The prospectus contained the statutory particulars-— that is, the dates and parties—of the agreement under which this_money was paid, and A. further disclosed the fact of his receipt of _the money to the directors of the company. There was no evidence that the purchase-money actually paid by the company was increased by the payment of the £2,000. \VRIeri'r, J., held that the £250 was a secret profit made by A., which he was liable to refund at the instance of the liquidator of the company. The reference to the contract in the prospectus w_as_, the learned judge held, useless for the purpose of giving notice to the shareholders, for it is notorious, he observed, that shareholders seldom take the trouble to look at the contracts so referred to, and the disclosure to the directors was equally inefiectual, for they were themselves in the same position as But if this reasoning is good, how, our correspondent pertinently asks, is a promoter to protect himself? Everyone who has to do with companies knows that there is a promoter, and that he has to be remunerated. Intending subscribers to the company are entitled to know what the remuneration is, and if they are dissatisfied they can abstain from joining. But it has never been supposed that the promoter’s remuneration_ must be specifically mentioned in the prospectus. The Legislature has, mdeed, by section 38 of the Companies Act, @571 expressly stated how notice of contracts is to be Ewen to @119 P115110, and although the section is not so drawn as to render this notice very effectual, it would seem that part1es_ entitled under the contracts ought to be able to

rely upon it as suflicient. Moreover, it can hardly be said,

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that a promoter is making a secret profit when his profit is disclosed to the directors, who are the proper representatives of the company. If there is any design of withholding information from the shareholders the case would, of course, be difierent. The decision favours too much the apathy of investors. Often a man takes up shares without troubling himself to make inquiries; but if his interest is sufficiently large to make it worth his while, he will be careful to examine the contracts relating to the formation of the company. His failure to do so should not have the efiect of depriving the promoter of his fees. As the matter stands, the promoter is only safe if he specifies his remuneration in the prospectus.

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THE nsroar of the Commissioner of Metropolitan Police for the year 1896 has recently been published in the form of a Blue Book. It contains a great deal of interesting information, and shews on the whole a satisfactory decrease in crime. The statistics for the City are, of course, not included in this report, but the district covered comprises an area of 688 square miles, and contains a population of nearly seven millions. In this district during the year 18,536 indictable offences were reported to the police. This is a decrease of nearly 1,500 as compared with 1895, the numbers for which were nearly 1,000 lower than for 1894. It is satisfactory to learn that this large diminution took place almost entirely in crimes against property, which, as remarked by the Commissioner, are the only crimes which can really be controlled by police action. This seems to shew that the police are growing more vigilant in watching known criminals, and more successful in preventing crime. Probably no one will deny that it is more to the advantage of the public that a crime should be prevented than that the criminal should be brought to justice after he has committed the offence. The number of burglaries and house-breakings also shew a substantial decrease, and it is gratifying to find that in only one case was a crime of this nature accompanied by personal violence. Both the number of summonses issued at the request of the police, and the number of apprehensions during the year shew an increase, the latter amounting to over ninety thousand. But as the majority of these were for more or less trifling matters, and as everything tends to shew a decrease in the number of serious offences, it may be taken that this increase points to greater efficiency on the part of the police. Twenty-one cases of alleged murder were investigated. Out of these there were eleven trials on the capital charge, eight resulting in convictions and three in acquittals. Five of the murderers evaded justice by taking their own lives. The remaining five were undiscovered, but of these three were cases of women dying from the efiects of illegal operations. It is very satisfactory to learn that the new system of identifying prisoners, which was started in 1890, and which is quite independent of the Bertillon method, has turned out to be a great success, and that no less than 3,503 persons were identified by this means. Either cabmen are getting more honest or the public more careless, for the number of articles left in vehicles and deposited at the Lost Property Oflice by the drivers and conductors of cabs and omnibuses shows an extraordinary increase, and amounts in the year to no less than 38,025. Out of this large number, however, strange to say, only half were claimed and restored to the owners. The list of these articles exhibits the usual astonishing variety, but it is rather startling to find that a person can forget such a thing as a perambulator or a bicycle on a cab. Speaking of bicycles, it is interesting to note that as many 1,608 persons were proceeded against by the police during the year for furious riding, riding without lights, &c. However clearly this report may point to a growth in the efficiency of the police in some directions, it can hardly be said that there is any indication of an increase in detective power to keep pace with the increase in preventive power. We read that the total value of the property stolen during the twelve months was £131,718. Out of this, property to the value of £22,468 only, or about 17 per cent., was recovered. In the year before, the value of the property stolen was considerably greater, but over 29 per cent. in value was recovered. As to the proceeds of burglaries and housebreakings, only 6 per cent. in value of the property stolen was recovered. This seems a very small pro

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portion, and this part of the report will probably not be considered as encouraging as the rest of it.

THE DECISION of the Court of Appeal in Ellie v. Pond and the Bloonmbzlry S3/ndioato 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 jobber with whom he is dealing in the transaction, and this is a responsibility against which he must be indemnified by his principal, but, for the right to indemnity to be enforced, it is necessary that he should have suffered loss through some default of the principal, and upon this ground the Court of Appeal (A. L. SMITH and Connms, L.J'J., RIGBY, L.J., rliss.) allowed in part the appeal against the judgment of MATHEW, J. The defendants had employed the plaintifi to purchase large quantities of Metropolitan District Railway Stock. By the 10th of November, 1896, which was a settling day on the Stock Exchange, £100,000 of stock had been bought and taken up, the money being provided by the plaintiff, and £35,000 had been bought and not taken up. It was agreed between the parties that the latter stock should be carried over at the current price, 29}, till the next settling day, the 26th of November, and that the £100,000 of stock should not be sold till then. A further amount of £14,000 was also bought on the 10th. The plaintiff becoming uneasy over the transaction, did not wait for the 26th, but sold the whole of the stocks on the 19th at 25. At the trial the jury found that, if he had waited till the 26th, the price would have been 28, and that in selling on the 19th he did not act with proper care and skill. Marnnw, J., held that the plaintiff was entitled to an indemnity from the defendants in respect of the whole of the stock, subject to deduction for the loss of £3 per £100 of stock incurred by selling on the 19th. The purchases had been made at prices above 28, and judgment was entered for £4,151. But in the Court of Appeal a distinction was taken between the £100,000 of stock which had been paid for and taken off the market, and the stock which had been carried over or only bought on the 10th. In respect of the former, the transaction of purchase was complete so far as the broker was concerned, but the defendants had failed to find the money for and to take up the shares, and consequently the broker’s right of indemnity had arisen. But in respect of the latter, the purchase was still inchoate. In respect of shares which were to be carried over till the 26th ,of November, or were only bought for that day, the broker had never been in a position to call upon the defendants to take up shares and there had been no default by them. On the contrary, he had, by selling on the 19th of November to a stranger, found another way of satisfying his liability to the jobber, and by his own conduct he had excluded the defendants from the transaction. Consequently the circumstances under which their liability to indemnify him would arise had not happened, and in respect of the £35,000 and £14,000 of stock the appeal was allowed. ]’rz'nui faoio the broker has a claim on his client as soon as he effects a purchase for him, but the claim fails if the broker so acts as to prevent the purchase from being completed.

Dunmo Tan hearing of the salvage case of I710 Persian Empire in the Admiralty Court, Mr. Justice BARNES strongly commented upon the length of the pleadings in the case. He pointed out that only "facts" should be set out, and that evidence should not be pleaded. The practice of setting out the account of the salvage services at great length has probably arisen from the decision of Sir Jsuns BANNER in Ho Isis (8 P. D. 228). It was there decided that the form of statement of claim in Form No. 6 of Appendix C. of the Rules of the Supreme Court, 1883, should not generally be followed, but a fuller form should be used. The reason for this was apparent. The statements of claim in these actions are often admitted, and it would cause great additional expense if the plaintiffs, when the facts were admitted, were obliged to bring witnesses to expand the facts summarized in the statement of claim, and the defendants were to keep witnesses to meet facts which did not appear in the claim but which it would not be prudent for them to be un

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Tun judgment delivered by DARLING, J., last Saturday in Huttley v. Simmons furnishes an interesting supplement to the decision of the House of Lords in Allen v. Flood. In Huttlay v. Shrmzons, which was tried with a jury in November, the plaintiff, a cabdriver, sued the defendant SIMMONS, who was the president of a strike committee of a trade union, and other persons wno were members of the union, for having induced a cab proprietor named J ONES to refuse to give him employment. There was no evidence against any of the defendants except Simmons, but as regards him the jury returned answers to the questions left to them upon which the judge would have been bound, upon the decision of the Court of Appeal in F loorl v. Allen, to enter judgment for the plaintiff. The jury found that SIMMONS induced the cab proprietor not to employ the plaintiff, and that he did this in order to injure the plaintiff and to procure an indirect advantage, not indeed for the defendant himself, but for others for whom he was acting—that is, he did it maliciously in the legal sense of the word. To avoid, however, the expense of an appeal, should the House of Lords reverse the Court of Appeal in Allen v. Flood, Mr. Justice DARLING reserved his judgment.

Upon the above findings it would have been a matter of course to enter judgment for the defendant as soon as the decision of the House of Lords was_give_n. The findings are practically the same as those of the jury in_Allan v. Flood, and they disclose no cause of action in the plaintiff. No existing contract was broken, nor any unlawful means used in preventing him from getting employment, and the finding of mahce by itself was insuflicient. But in Hutlley v. Simmons the jury further found that the defendant conspired with others to prevent the plaintiff from obtaining employment under Jonas, and it was open, therefore, to argument that the conspiracy _W&B a cause of action, even though the House of Lords had deprived malice of any such effect. Some countenance is lent to th_1S contention by a passage from the judgment of Lord SEAN}? 111 Allen v. Flood : “ Combination of different persons in pursuit of a legitimate trade object occurred in the case of T/w_fl[oyul Steamship Co., and was there held to be lawful. Combmation for no such object, but in pursuit really of a malicious purpose to ruin or injure another, would, I should say, be clearly unlawful, but this case raises no such question.”

In spite, however, of this rlictmn, it seems that, so far as any civil remedy is concerned, the fact of conspiracy gives no ground of action. The case which most strongly suggests that such an action would lie is Gregory v. Duke of Brunswick (6 M. & Gr. 953), where the plaintiff had been hissed off the stage, and he alleged that this was done in pursuance of a conspiracy between the defendants. The fact of the conspiracy was left to the jury by TINDAL, C..T., 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 ComMAN, J., upon an application for a new trial on the ground of misdirection, has been taken as implying that the real ground of action was malice, and that the conspiracy was only material as evidence of malice (Pollock on Torts, 4th ed., p. 293; Clerk and Lindsell on Torts, 2nd ed., p. 24); and, in this view, the result of Allm v. Flood is to shew that the conspiracy 18 altogether immaterial. If malice is not a ground of action, the use of conspiracy as evidence of malice is gone. Brut even if Gregory v. Duke of Jfrunsioiok were an authority that conspiracy could be a cause of action, it stands b_y itself and is opposed to the tendency of authority both in this country and in America. “ As a rule,” said BOWEN, L.J., in the Jlfagul case (37 W. R. 756, 23 Q. B. D., p. 616), “it is the damage wrongfully done, and not the conspiracy, which is the gist of actions on the case for conspiracy.” In other words, there is no cause of action unless, in pursuance of the conspiracy or agreement, acts are done which would be unlawful if done

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by an individual acting independently. The real cause of action is the violation of the plaintifi’s right, and the averment of conspiracy does not strengthen the case. This principle runs through the judgments delivered in the House of Lords in the lllogul caso (40 W. R. 337; 1892, A. C. 25). The defendants in that case had violated no right of the plaintifis, and, consequently, the fact that they had acted in concert did not make them liable. “If no legal right,” said Lord Hansnnnr, “has been interfered with, and no legal injury inflicted, it is vain to say that the thing might have been done by an individual, but cannot be done by a combination of persons." “ As the law is now settled,” said Lord WATSON, “ I apprehend that in order to substantiate their claim the appellants must shew, either that the object of the agreement was unlawful, or that illegal 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 Hiotcliins v. Ilzitoliins (Bigolow’s L. C. on Torts, p. 207). The declaration in that case alleged that the defendants by maliciously conspiring together had induced the father of the plaintiff to revoke a will wherein he had devised certain real estate to the plaintiff. It was held that this disclosed no cause of action. “The allegation of a conspiracy,” said Nnnsox, C.J., “is of no importance so far as respects the cause and ground of the action. A simple conspiracy, however atrocious, unless it resulted to actual damage to the party, never was the subject of a civil action. . . . We may, therefore, lay out of consideration altogether the conspiracy charged against these defendants, in endeavouring to ascertain if any foundation is laid for the action, and regard it as the same as if the defendant HUTCHINB had alone committed the several grievances for which redress is sought.” This follows the opinion of Lord Horn in Savile v. Roborls (1 Lord Raym., p. 378), that “ an action will not lie for the greatest conspiracy imaginable if nothing be put in execution, but if the party be damaged the action will lie; from whence it follows that the damage is the ground of the action, which is as great in the present case asif there had been a conspiracy." Damage, in these passages, must be understood as meaning wrongful damage, or damage following upon the invasion of a right.

A singular application of this principle occurred in Ireland in K'i'ar2zey V. Lloyd (26 L. R. Q. B. 268). The plaintiff, who had been the Protestant incumbent of a parish, brought an action against certain of his former parishioners, alleging that they had conspired to prevent subscriptions being given to a voluntary fund upon which his income was partly dependent. The jury found that the defendants combined and agreed among themselves to withdraw their own subscriptions, though they did not induce other parishioners not to contribute; that the combination and agreement was partly with the intention of injuring the plaintiff and obliging him to leave the parish, and partly with the intention of promoting the religious interests of the parish ; that subscriptions were, by reason of such combinat10_n, withheld from the fund, and that the plaintiff was thereby 111]I11'8(l and was obliged to leave the parish. If, therefore, mere conspiracy, followed by pecuniary damage to the plaintiff, but without any violation of his legal rights, was sufficient to found a cause of action, here were the necessary elements. The court, however, presided over by PALLES, C.B., took a contrary Vlew, and held, in accordance with the authorities, that the acts of the plaintiffs did not constitute any legal injury to the plaintiff, and that the action was not maintainable. Conspiracy, said the Chief Baron, is available in such action only for the following purposes : (1) To make the defendants jointly responBll)lB for the acts done in pursuance of it; and (2) to indicate the alleged malicious or wrongful intention which governed those acts. “That I am right in this,” he continued, “is, I behave, beyond cavil. If anything is well settled in law it is that 1n cases of this description, in which the old writ of conspiracy did not lie, the gist of the action is not the conspiracy 13°“, but the wrongful acts done in pursuance of it. The cause 01 action must exist, although the allegation of conspiracy be struck out ; and the acquittal of all the defendants but one will mi, as it would were the conspiracy a material part of the Eallflo of action, prevent judgment against the remaining defen

int found guilty.”

This very clear statement of the law exactly applies, it will

be seen, to the circumstances with which DARLING, J ., had to deal in Huttloy v. Simmons. Upon the findings of the jury, apart from conspiracy, there was, according to the decision of the House of Lords in Allen v. Flood, no cause of action. It was left, therefore, for the action to be founded upon the conspiracy alone, and this was impossible. Judgment, therefore, was necessarily entered for the defendant. Of course this examination of the authorities does not exhaust all that may be said on the subject. “ A man,” said Lord BRAMWELL in the Jloyul can (1892, A. C., p. 45), “may encounter the acts of a single person, yet cannot be fairly matched against several.” But, >0 far as civil liability is concerned, it seems clear that such acts must, apart from the combination, constitute an actionable

wrong.

COMPANIES WINDING UP DURING THE LEGAL
YEAR 1896-1897.

III.

Tna House of Lords has of late had its hands pretty full of company cases. In one of them (lVelton v. Safiéry, 45 W. R. 508 ; 1897, A. C. 299) it deliberated much before coming to a decision from which Lord HERSCHELL dissented. The question is thus shortly stated in the argument of Mr. WELroiv’s counsel : “The question raised by this appeal was left undetermined by the Ooraguoi case (1892, A. C. 125), namely, whether the holders of shares issued at a discount are liable to calls for the adjustment of the rights of contributories inter so, it being admitted that they are liable to calls for the payment of the debts and costs of winding up.” The House held that Mr. WELTON, the shareholder, was liable to calls made for the purpose of adjustment, on the ground that it is ultra oiros for a limited company to issue shares at a discount, although authorized to do so by its articles of association.

The doctrine of estoppel, as against a company in respect of paid up shares, has now been more clearly defined by the House of Lords. It was certainly generally supposed that the doctrine could only be invoked for the protection of a transferee, and not in favour of an allottee. Take up any recent edition of a textbook prior to 1896, and it is clear that this was understood as the rule. One writer says: “If the shareholder have certificates given him stating that the shares are held by him as fully paid up, and he afterwards bomi jirlo dispose of his shares as such, the company cannot make the innocent trzmyeree liable for calls; he is entitled to rely upon the company’s admission of payment”; the authority cited being Burk-inslzaw v. Nicolle (26 W. R. 819, 3 App. Cas. 1004).

In a decision which was much doubted at the time, Mr. Justice VAUGHAN WILLIAMS held that the doctrine applied in the case of, and so to protect, an original allottee: Pa/rbu-ry’s case (44 W. R. 107; 1896, 1 Ch. 100). In so holding, the learned judge followed the principle laid down by J Aims and Tnnsiei-in, L.J J ., in Re Britisln Farmers’ Puro Linseed Cake O0. (26 W. R. 334, 7 Ch. D. 533), the name in the Court of Appeal of the case which, ~ when it went to the House of Lords, was called Burkinsluuo v. 1Vz'colls. Parburg/’s case was decided in the teeth of the following statement in another book on company law : “ The original allottee and (subject to what follows) every subsequent transferee with notice holds the shares as unpaid ” ; and Mr. Justice VAUGHAN WILLIAMS says : “I am asked to say that, because of that, the original allottee, whether he had or had not knowledge that the shares were not paid up, and whether he acted or did not act on the faith of the representation in the certificate, is liable because he is an original allottee. So to hold would not be giving effect to the general law of estoppel, or to J amiss, L.J.’s, statement that the section does not in the slightest degree alter the general law of the land as to estoppel by conduct or representation.”

This case was cited before the Court of Appeal in Ex parlo Bloomenlhal (44 W. R. 577 ; 1896, 2 Ch. 525), another case of an original allottee. The Court of Appeal there held that the shareholder knew enough to be prevented from saying that the company was estopped, but the decision in Parburg/’s case was approved. At this stage the text-writers said one thing, to |‘ which a decision of a court of first instance and a dictum of the | Court of Appeal were opposed.

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