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“ Proprietors legally exempt from the income tax, will be furnished with a certificate of the proportion due on their shares, on application to the manager.
“WILLIAM RATHBONE, Chairman.” The cause was tried at Liverpool, on the 26th August, 1858, before Mr. Baron Martin.
The plaintiff's case was (according to the statement of his counsel, Mr. Edward James), that the defendant was a managing director of the company, having been appointed a director in 1854, and a managing director in July 1857, at the time the report of July 1857 was published, and had concurred in its publication; and that that report was false in its statements as to the solvency and affairs of the bank, on, amongst others, these grounds :—
1. That the paid up capital of the bank was not £1,000,000, but £936,000.
2. That the report, by stating that a dividend was to be paid in respect of the half-year's profits, £69,318, 12s. 8d., induced the public to believe that the bank was in a sound financial condition; whereas the fact was, that though there might have been that amount of profits for that particular half-year, there was upon the whole account a deficit; the dividend, therefore, being in fact paid out of capital.
The plaintiffs further contended, that the defendant knew that such report misrepresented the facts; that such report was addressed not only to the shareholders, but to the public generally, and was intended to deceive them by concealing the state of the bank, and induce them to believe the bank to be in a sound financial condition; that the plaintiffs received the report, and, on the faith of its being true, bought ten shares in the bank, in August 1857, the damage to the plaintiffs being, that they lost the purchase-money of the shares, which were valueless (the bank failing on the 27th October, 1857), and were obliged, in respect of such shares, to pay calls made after the failure of the bank, as a contribution towards its losses.
In support of the case of the plaintiffs, the following evidence was given.
The above report of July 28, 1857, was put in.
The plaintiffs themselves were called, and proved that in August they applied to Mr. Brown, a stockbroker, for a report of the bank ; that he procured the report of July 28 ; that in consequence of reading that report, vouched by the names attached to it, they bought ten shares in the bank; that the shares became valueless when the bank stopped, and that they had to pay calls as a contribution to losses.
Mr. Tinley, a sharebroker, was called, and proved that he
had dealt in shares of the Borough Bank; that brokers always obtained the reports, such as that of the 28th July, upon making application to the bank, and as a matter of course ; and that the value of the shares was generally determined by the reports.
The stoppage of the bank on the 27th October, 1857, was admitted
Certain reports of accountants appointed by the liquidators, of whom defendant was chairman, to investigate the affairs of the bank, were relied on, to shew that the whole capital of £1,000,000 had not been paid up, and that it appeared from the books that the bank was in an unsound state at the time the report of the 28th of July was issued. This evidence was objected to by the Attorney-general, but admitted by the judge, who observed, the whole question was the state of the defendant's mind on the 28th July, 1857. That so far as any thing since published could affect that question, the jury would give it due weight, but not suffer themselves to be led away by it from the actual question at issue.
To show the defendant's connection with the report, and his knowledge of the misrepresentation, a printed report of a meeting of shareholders, held on the 25th of February, 1858, was relied on, at which meeting the defendant made a speech containing the following passages
“I cannot but feel that the position in which the directors are placed is one of very great discredit, and I wish as fully as I can to explain my part in the direction.” After alluding to one particular item of loss, the defendant said—“It was then, for the first time, that I became aware that the managing directors had almost as little control over, or knowledge of the affairs of the bank, as the outside directors. Towards the end of June last, Mr. Cross called upon me in London, and stated that Mr. Smith was going to resign, and he asked me if I would become a managing director. I assented. Immediately on my return to Liverpool, my first step was to inquire into the condition of the bank with respect to the declaration or non-declaration of a dividend. The statement of the affairs of the bank, laid before me by Mr. Smith, led me to the conclusion that no dividend ought to be declared. This view of the case was assented to at a meeting of the directors; but at a meeting afterwards, suddenly convened, the decision was reversed—(Mr. Woodward, 'By whole of Board or by purt?')—by the Board, and to which I yielded; the motive being that it was very dangerous in the then position of the bank, to run the risk of the excitement that might be produced by the non-declaration of a dividend : it might have resulted in a run, and the stoppage of the bank. I acceded to it, only on the understanding recorded in the ninutes, that the statement to the shareholders should contain a full and correct disclosure of the position of the bank, even although it
should disclose the fact that the dividend was declarel out of capital.” In consequence, a resolution was drawn up by the defendant as follows :-“That a dividend of 2) per cent be declared—it being understood that the statement to the shareholders at the annual meeting is to be a true and correct representation of the affairs of the bank, as far as it goes, whatever may be the result."
The defendant, then admitting his connection with the report actually made to the shareholders, viz., the one in question, of July 28, 1857, said of that report
“ The report that has been presented, well-examined shows the fact, although I do feel that it does not make the statement in the broad terms that would have been adopted if the intention had been to state that there was a very handsome surplus,"
At the close of the plaintiff's case, the Attorney-general (Sir F. Kelly) submitted that there was no case to go to the jury; that there was no fraudulent misrepresentation by the defendant in the month of July; and that the representation was addressed to the shareholders and not to the plaintiffs.
The judge said—“I don't think I can say there is no evidence ; but, Mr. Attorney-general, if you will consent to leave the case here, I will give you leave to move, that is if you do not call witnesses.”
The Attorney-general, however, elected to proceed.
On the part of the defendant he contended — That the capital was paid up, or that defendant believed it so to be; that there were profits to the extent stated in the report of July, during the half-year therein alluded to; and that the report was so far true. That as to the statement of losses made to the defendant by Mr. Smith, the manager (hereafter more particularly alluded to), it was only an estimate of possible loss, and did not represent the amount of debts absolutely lost. Further, that Mr. "Dixon acted in good faith in making the report, believing its truth; that the report was not calculated to mislead and induce people to purchase shares, for that on the face of it it was unsatisfactory; that the report was not addressed to the public at large as a recommendation to purchase shares, but was in fact on the face of it an apology to the shareholders for the non-payment of the usual dividend; and that it was not a representation to the plaintiffs, merely because the directors permitted it to be published.
The defendant was called as a witness, and after speaking to his appointment as a director, and as managing director, and to the fact that only the managing directors and the manager knew, or could verify the state of the bank's affairs; and also to his having, when an outside director, expressed his dissatis
fiction at the small amount of information given in the matter to the outside directors, and after speaking to his having applied to Mr. Smith, the manager (as being the “person who knew most of the affairs of the bank”), about the losses, and of Mr. Smith's having made a statement to him about the losses, or as he, the defendant, contended, the possible losses, of the company, -amongst other things said, alluding to what he did after his appointment as managing director, and after his conversations with Mr. Smith, as follows:
“I proceeded to consider whether a dividend ought to be declared on the current half-year. I put down my conclusion in figures. The figures are in my handwriting.” [The figures were £33 1,000 and £301,000, and the deficit was then stated to be £33,000.] The defendant continued, “I added £25,000 to this at a subsequent period. This made a total deficit of £58,000.” He proceeded, “I communicated it to the whole body. A draft report was drawn up by the manager. I do not know what has become of it.
This was early in July; I attended a meeting on the 4th of July; it was a full meeting. I mentioned my views that there ought to be no dividend. I stated that it was based on calculations furnished to me by Mr. Smith. The majority disagreed with me, and resolved upon a dividend. I myself continued to be of the same opinion as before. It was stated by Mr. Smith, he was under the impression that the customers of the bank and the shareholders would be much alarmed by the non-payment of a dividend. I said that paying dividends out of capital was a logical absurdity, which if they pleased they might commit, provided they placed upon record a minute that the so doing should not interfere with giving to the shareholders a true and correct statement of the affairs of the bank. I drew up a draft resolution to that effect, which was read. The report was prepared in a form different from that ultimately published.”
This draft report, here referred to by the witness as having been prepared and not published, ran as follows:
“In winding up the affairs of 1854, a year which is well known as most disastrous to the customers of the bank who were engaged in the colonial shipping trade, heavier loss has been sustained in the realization of assets then taken over by way of security, than the directors could have anticipated, and than the large provision already made for that purpose will meet. While the directors entertain no doubt that the policy of taking over these assets was one by which the interest of the bank was best consulted, they regret to inform the shareholders, that the result of a careful revision of these assets leads them to declare that the reserved fund can now no longer be considered an item to the credit of the bank, and that the further amount required to meet their losses, if realized at once, would absorb about 58 per cent. (£58,000) of the capital of the bank.
This was the resolution before referred to at p. 235, commencing " That a dividend of 2} per cent. be declared, it being understood,” &c.
“ Under these circumstances, the directors were in doubt as to the propriety of paying any dividend for the last half-year, but conclude to do so, on the ground that the business of the past year, taken by itself, warranted their doing so, and that it was advisable to spread the losses arising from the affairs of 1854, over future period, rather than expose the shareholders to the inconvenience of the intermission of any dividend, which some of them might feel perhaps very severely. The directors do not see any more impropriety in this course, than in that of an individual, after an unfortunate year's business, supplying his necessary expenses out of his trading capital, provided always that the fact of this being done is fairly and honestly laid before the shareholders."
The witness then continued thus : “A discussion took place upon it" (that is the draft report just set out), “it was decided it should be set aside. They did not like it. I concurred in the resolution. Finally, I waived my objection, and concurred in the report actually presented” (the report complained of, of 20th July, 1857).
The defendant said of this last report, “I believed the statement in the report to be true. I believed all the statements made to be true.” Again he said, “I did know what Mr. Smith told me; but I did not know the state of the bank as disclosed afterwards by Mr. Banner's report.”
The Attorney-general wished to put in two reports of directors, dated in 1837 and 1838, containing the following extracts :
1837.-“It may be proper here to remind the proprietors that the internal management is essentially that of a private bank. With the exception of one only, appointed by the directors out of their own body, it is conducted by the chairman and managing director, no other having access to the pecuniary transactions of the customers, thus combining the secresy of a private with the security of a jointstock bank.”
July 31, 1838.—“One other point only remains to be mentionedthe internal management. This remains as before, being exclusively confined to the manager, assisted by the directors, who alone have access to the details of the bank."
On being asked by the presiding judge for what purpose he tendered this evidence, the Attorney-general said he tendered it to meet the strong remarks of Mr. Edward James, that every attempt had been made to shuffle all responsibility on to the shoulders of the manager and one or two of the managing directors.
The learned judge rejected the evidence.
The learned judge told the jury that, in order to sustain the plaintiffs' case, the report must be false, and to defendant's knowledge, and made by him with a fraudulent intention to deceive