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and mislead, and made with the intent to deceive and mislead the plaintiffs. If they believe Mr. Tinley, as every broker could get a copy, obviously for the purpose of showing it to persons most likely to deal in shares, it would be for the jury to say whether the report primarily made for the proprietors was not also made for the consideration of persons wishing to deal in shares.
Ultimately the jury found for the full amount claimed by the plaintiffs.
In Michaelmas Term last the Attorney-general, on behalf of defendant, moved for a new trial, on several grounds :1. That there was no evidence for the jury of false and fraudu
lent misrepresentation. 2. That the verdict was against weight of evidence. 3. That there was no evidence of any representation made to
the plaintiffs that the report was true. 4. That the reports of the directors of 1837 and 1838 were
improperly rejected in evidence. A rule nisi was granted on all the grounds.
The rule was argued in the following Hilary Term, before Lord Campbell, C. J., and Justices Wightman, Crompton, and Hill. The able arguments of Mr. Edward James, Q.C., against the rule, and of the Attorney-general in support of it, deserve attention. They were confined principally to the particular facts of the case, to which we have already adverted ; and we have, moreover, already presented them briefly, but perhaps sufficiently, in narrating the points relied on at the trial on both sides respectively. What additional matter it is desirable to introduce to the reader's notice will be fully gathered from the extracts from the judgments, which we proceed to subjoin.
The rule was discharged by the unanimous judgment of the Court.
Lord Campbell said :
“I really feel great pain upon this question, because I look upon Mr. Dixon as a gentleman to be considered as still an honourable man, and I do not think that any permanent stigma is attached to his character, but I think in this transaction he has been over-persua led to do wbat is wrong.
Video meliora,' &c. &c. The declaration imputes to him that he knowingly concurred in a report that he knew to be untrue, and that he did so with the intention of deceiving. I am sorry to say, I think in this case that has been proved against him. The report, I think, amounts to this—that the dividend of five per cent. was for that half-year to be paid out of profits, and that hereafter in all probability it would be paid out of profits; and that this bank was in a fit situation to award the dividend of five per cent. on the 28th July, 1857. Certainly this declaration is not against him for concurring in a dividend, but it is for representing that that dividend was paid out of profits, and that the bank was in a situation safely to make such a dividend.”
His lordship then, after observing that he thought the report in question amounted to such representation, thus proceeded :
* Was that the true state of the affairs of the bank? Most undoubtedly it was not. Upon that there is no dispute that this was incorrect; it was untrue. The next important question is-was this incorrect and untrue to the knowledge of Mr. Dixon?”
His lordship then read over and commented on the statements made in Mr. Dixon's speech in February, 1858, and other evidence already referred to, and observed of Mr. Dixon's statement that that report, “well examined, showed the facts” (i. e., the actual state of the bank) ; and of all the arguments adduced to prove that it did so, his lordship disposed by asking, whether “it was fair that it should require a very microscopic inspection of this sort ?” and expressed a decided opinion that it did not disclose the true state of the bank. Then, after alluding to the conflict-the doubts--the more than doubts-that the defendant admitted existed in his mind at the time the report of July was published as to what really ought to have been done, his lordship said :
“Still he concurred in this report. Now, with what view does he do so? I say he does so for the sake of the bank, but regardless of the interests of those who were to deal with the bank; that it would be very much for the benefit of the shareholders, of whom he was one, that this substituted report should be published, instead of the more genuine report, and he concurs in that. Why does he concur in it? Nay, the fair inference is this—that he concurs in it because he believed that it would not alarm ; that it would not prevent people from continuing their deposits in the bank; that it would not prevent people from buying shares in the bank. Is not that a fraud, although he might believe that if the bank-went on prosperously, and made £100,000 & year, that ultimately it might prosper and become a successful speculation ? In the case of the directors of the British Bank, I had occasion to lay down, and I believe that that was not considered as a misdirection in point of law, to the jury, that if it was the intention of the directors to publish what they knew to be untrue, for the purpose of inducing persons to buy shares in the bank, that they were guilty of doing what was wrong, and might be indicted for a conspiracy, although they might have believed at the time, that by a successful career the barik might ultimately be solvent; but publishing an untrue statement of the condition of the bank, for the purpose of inducing persons to become purchasers of shares, and running the risk of the
bank becoming bankrupt, was what the law would not allow, and those who did so were subject both to civil and criminal proceelings. The next point that we are to consider is, was this representation made to the plaintiffs ?” His lordship, after stating that no doubt the directors knew that this report would be read by other brokers, and all persons dealing in shares, and acted on by them, and that such reports are generally published for such purposes, and after commenting on the evidence of Mr. Tinley, said—“ Therefore, I have no doubt whatever, that the allegation in the declaration, that the representation was made to the plaintiffs is most completely established.”
As to the alleged improper rejection of evidence, his lordship thought it was, looking to the grounds on which it was tendered, properly rejected, and added—“But I do not think, if these reports had been read, they would have weighed a feather in the case.
Mr. Justice Wightman gave his judgment to the same effect on all the points ; to the following observation we particularly draw attention :-
“ Under those circumstances it seems to me that, although in what Mr. Dixon really did, he may not have intended in the ordinary sense of the word to commit a fraud, still there is the fact that there has been a false representation, and that he, knowing it to be false, it was put out by him for the purpose of creating a false credit, and giving a false credit to the bank. He did that, therefore, which is charged as fraudulent in the declaration."
Mr. Justice Crompton also gave judgment to the same effect on the law of fraudulent misrepresentation; his lordship said :“ There can be no doubt about the law.
It is quite established by the cases, that if a party publishes what he knows to be false, if that is to be acted upon by the public, and the public or any individual acts upon it, whatever may be the motive or the publication of the statement so made, the person who is injure l has a right to say, you have defrauded me. In this sense it is morally wrong. As to the rejection of evidence complained of, the learned judge intimated that for certain purposes the evidence would bave been admissible ; but that, as the case stood, all that the defendant was charged with, being the knowledge he derived from Mr. Smith, and his access to the books for the few days after he became a managing director, it was immaterial. He further observed, that in his opinion the judge who presided very properly asked for what purpose the evidence was tendered, and having relation to the answer given, very properly rejected it.
His lordship further said, I think it would be very unfair and very dangerous, when an offer of evidence is made in that way, so that the counsel on the other side loses the opportunity of objecting to it—which they would have seized if it had been offered on its true and real grounds—to permit parties afterwards to come and say this is admissible in another point of view, and ask us to disturb the verdict on that ground.”
Mr. Justice IIill entirely concurred as to the representation having been made to the plaintiffs, though addressed to the shareholders of the bank :
Upon the report complained of, his lordship said, “ Now can any fair and dispassionate man, looking at this report that was afterwards published, say it conveys the information to an ordinary reader, or to a reader of ordinary understanding, that the dividend was paid out of the capital ? On the contrary, it is put in such language as to lead to the conclusion, that in a favourable view, or a favourable construction of the affairs of the bauk, nothing more was required to satisfy the losses than the reserved fund; and certainly, looking at it as a whole, no one could fairly say that it would lead to any other conclusion, and that the dividend was not paid out of capital.
“ But it appeared in evidence that the report so published was left at the bank, and that the sharebrokers, who were employed to buy and sell shares in that bank, as well as in other matters in Liverpool, whenever they required information with regard to the affairs of the bank, went to the bank, and the reports were handed to the sharehollers. The plaintiff in this case having a small sum of money to invest, and being minded to invest that money in the shares of the Borough Bank, goes to his broker and asks his broker to obtain for him one of the reports. The broker goes to the bank, and, in the ordinary course of the practice of the bank, there obtained the report in question, handed the report over to the plaintiff; the plaintiff reads and considers it, and acts on the faith of the contents of that
port, and is induced to buy the shares.
“Now there is no doubt on the facts I hare stated, that undoubtedly, although the report was primarily a report made to the shareholders, yet it was intended by the directors—who desired that the shares of the bank should maintain a good value in the market—it was intended by the directors for the information of every person who was disposed to deal in the shares, and any person who, according to the ordinary practice of the bank, was so minded, might obtain that report at the bank, and the representation contained in that report was a representation made to the person so obtaining the report.”
From the above account of this action, which, because of its value, we have presented thus early to our readers, they will perceive that, as illustrating the important principles ably discussed by the bar, and finally elucidated by the bench, Scott v. Dixon is likely to become a " leading case."
VOL. VII. NO. XIII.
Notices of New Books.
(*.* It should be understood that the notices of new works forwarded to us for review, and which appear in this part of the Magazine, do not preclude our recurring to them at greater length, and in a more elaborate form, in a subsequent number, when their character and importance seem to require it.]
A Hand-book on the Law of Marriage and Divorce. By Robert A.
Pritchard, D.C.L., Barrister-at-Law, and W. T. Pritchard, Proctor in Doctors Commons. London : Stevens & Norton, 1859.
FORTUNATELY, the title of the above work is a “ Hand-book." Had it been a “handy book," however sweet the critic's temper naturally may be, it could not have been proof in this case against the growing and fashionable nuisance of misnomers, of which Lord St. Leonard's successful work has been the innocent cause. It is called, however, a “ hand-book,” which, though not a very happy title, shews better taste and more wisdom than many recent godfathers of law books have shewn. If, however, we may remark, titles are to be derived from the members and organs of the body, while it certainly gives a greater scope to our literary nomenclature, what we gain in extent we may lose in perspicuity, unless a common understanding is come to, as to the limits of the meaning of the terms. Thus, an “ eye-book” might be held to signify a work which one might just glance at; a footbook” one of an ephemeral kind, which, having cursorily examined, the reader will kick out of his library. We have seen also, we think, music-book employed for raising very juvenile performers on the piano to an appropriate height; these, though the task would not be graceful, might receive a hecoming classification.
Mr. Pritchard's “ Hand-book of Marriage and Divorce” is not like Mr. Murray's “ Hand-books for Travellers," which chattily shew the tourist how he should proceed when he leaves home. The roads to matrimony, and the modes of escaping from it, are not laid down in this legal publication ; the expenses of the journey are not tabulated, nor is advice as to what "couples” are to see, seek, or avoid, tendered. The “ Hand-book of Marriage and Divorce" is, in fact, an ample octavo volume, containing an excellent and useful Digest of the Statutes relating to these subjects, and of the cases in the old ecclesiastical and the modern “ Divorce and Matrimonial Causes Courts." It further contains a collection of precedents in use, and notes of practice.
If we have any quarrel with the title of the book, we have none with the book itself. The arrangement of the matter seems excellent. The index of the subjects, and that to the cases, are full and complete, and adapted, as they ought to be, to the wants of the practitioner. It