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Superior Courts : Queen's Bench Practice Court.-Common Pleas. award made in the plaintiff's favour upon his stated further what was not to be found in own evidence ought not to be allowed to stand, the letter of application, namely, that the unless the defendant has by his conduct upon allotment was upon condition that the the arbitration waived the objection and dis- deposit be paid on or before a given day abled himself from taking it, which is the re- on pain of forfeiture, and the shares being maining point for consideration. The defend. disposed of to others. Eleven days before the ant, after the objection to the reception of the given day the managing committee adverevidence of the plaintiff himself, nevertheless tised that they had completed the allotment procceded to cross-examine hiin as to a set-off of shares, and there was some evidence of which the defendant sought to establish, and the plaintif"s having seen the advertisewithout retiring from the reference called other ment. On the third day after the given witnesses in support of his case. All this was one he paid his deposits, and in a fortnight done under protest, but it was contended that afterwards executed the usual parliamenproceeding at all after the admission of the evi- tary contract and subscribers' agreement. dence objected to was a waiver of the objection. In the following month a meeting was holden, In the absence of any authority showing that the plaintiff being present, and it was then such an objection, which is not to an irregu- made known that at the date of the adver. larity merely, is waived by continuing to attend tisement the committee had in fact only the reference, I certainly do not feel disposed allotted 58,000 shares, although there were to think it so. The continuing to attend was applicants for more than the 120,000 shares. under protest, and nothing was done by the At that meeting the plaintiff opposed the defendant from which an acquiescence in the

resolutions to continue the concern,

and previous proceedings could be inferred. Irregu- moved as an amendment that the deposits larity in the conduct of the arbitrator, as by should be returned; but the chairman deomitting to give proper notices or the like, may clined to put the amendment to the meeting. undoubtedly be waived by continuing to attend Subsequently the scheme was abandoned, after notice of the irregularity, as appearing at and the plaintiff brought his action against nisi prius after an irregular notice of trial, may a member of the managing committee to be a waiver of the irregularity. But a party

recover back the amount of his deposits. who takes an unsuccesful objection to the ad

Held, First, that the application for shares mission of evidence at nisi prius does not waive

and the letter of allotment constituted no his right to a new trial because he cross

binding contract. Secondly, that the ad. examined the witness objected to, or subse

vertisement amounted to a fraudulent misre. quently called witnesses of his own. In the

sentation, and having been so found by the case which was cited that occurred before me in which an arbitrator examined the witnesses

jury, as also that it was a material induce. for the plaintiff without oath, I was of opinion

ment to the plaintiff to sign the subscribers' that the defendant could not object to the

deed, as well as to pay his money, formed a award, because he had not only gone on with

good ground of action to which the terms

of the deed were no answer. Thirdly, the reference, but had examined his own witnesses without oath, which appeared to me to

that the plaintiff's conduct at the sub. be not only a waiver of the objection, but an

sequent meeting did not amount to any

waiver of his right to recover. And acquiescence in the course pursued; and if the defendant in the present case had tendered

fourthly, that the omission to direct the jury himself for examination, I think he would

as to whether or not there was a binding have disqualified himself from taking any ob

contract was no ground for a new trial. jection to the examination of the plaintiff.

The material facts and circumstances of this Upon the whole then it appears to me that the case are so fully stated in the judgment below examination of the plaintiff, under the circum- as to render it quite unnecessary to repeat them stances stated in the affidavits, was a sufficient here. objection upon which the award might be set The case was argued early in the term by aside, and that such objection was not waived Mr. Knowles and Mr. J. Browne, on behalf of by the defendant going on with the arbitration. the plaintiff

, and by Sir F. Kelly, Mr. Sergeant The rule, therefore, must be made absolute. Channell, and Mr. Fitzherbert on behalf of the

Rule absolute.
defendant.

Cur. adv. vult.
Common Pleas.

May 8th, 1847. The judgment of the court Wontner v, Shairp. Easter Term, 1847.

was now delivered by

Wilde, C. J. This is an action of assumpsit ALLOTTEE OF RAILWAY SHARES.-INVALID for money had and received by the defendant CONTRACT

MISREPRE- to the use of the plaintiff, and the plea of the SENTATION, -RECOVERY OF DEPOSITS. defendant is non assumpsit. The defendant is The prospectus of a railway company stated sued as one of the committee of management the capital to be 3,000,0001 , in 120,000 of the Direct London and Exeter Railway Com

shares. On the plaintif's application by pany, with an extension to Falmouth and Penletter, sixty shares were allotted to him, zance, for the sum of 821. 108., being the de-". sand the letter of allotment was headed in posit paid by the plaintiff on 60 shares allotted the same manner as the prospectus, and to him in that concern. The case was tried be

FRAUDULENT

manner

Superior Courts : Common Pleas.

157 fore Mr. Justice Erle, at the sittings after last posed lines were imperfect, and that the whole Trinity Term, and it then appeared in evidence amount of the deposits paid up had been exthat in 1845 a prospectus had been issued pended except 450l. This led to a meeting of which stated the capital of the proposed com- the shareholders on the 15th of December, at pany to be 3,000,0001., in 120,000 shares of 251. which the plaintiff attended, and a report of each, deposit 11. 78. 6d. per share. It then sets the directors was read, setting forth the then forth a form of application for shares, which state and prospects of the concern. Resolutions being headed in the same

as the of confidence giving authority to take fresh prospectus itself, and directed to the provisional steps in carrying out the line were also procommittee, is in the following terms :-"I re- posed, to which, as an amendment, the plaintiff quest you will allot me shares of 251. moved that the whole of the deposits should be in the capital of the above-named railway, and returned, and that the committee should pay I will accept the same, or any less number, all expenses incurred. This amendment the subject to the regulations of the company, and chairman did not put to the meeting, but only pay the deposit of 16. 78. 6d. per share, and the original resolutions, which were carried by sign the parliamentary contract and subscribers' a large majority. Upon these facts it was coriagreement when required.” On the 25th of tended at the trial, that as the advertisement September, 1845, the plaintiff sent an applica- containing the misrepresentation as to the altion for 30 shares, substantially in the form so lotment had been issued with the knowledge of prescribed, and afterwards, on the 10th of the committee, and as the plaintiff had been October, he made a similar application for an thereby induced to pay his money, he was enincrease in the number to 60. In answer to titled to recover it back from the defendant, these applications the plaintiff received a letter and that as the subscribers' deed had been bearing at the top the words “ Not trans- executed under the same misrepresentation, his ferable,” followed by a heading similar to that right was not thereby affected. For the deof the prospectus, and which then states that fendant it was argued that the written applica" the committee have, at your request, allotted tion for shares and the subsequent letter of to you sixty shares of 251. each in this under allotment constituted a valid contract, under taking, upon condition that the deposit of which the plaintiff was bound to pay his de11. 7s. 6d. per share therein be paid on or be- posit, and that therefore the payment made by fore the 28th of October instant, in default of him could not be referred to the advertisement, which this allotment will be forfeited and the and further that the deed which he had signed shares disposed of to other applicants,” &c. expressly authorised the application of the deIn that letter, as well as in the prospectus the posits to the expenscs incurred in preparing for capital of the concern is stated at 3,000,0001., parliament. The learned judge who tried the in 120,000 shares of 25l. each; and such being cause left it to the jury to say whether the dethe case, the managing committee, on the fendant had made a false representation which 17th of October, published in the Times news was a material inducement to the plaintiff to paper an advertisement which stated, “ The pay his money; whether, also, the consideramanaging committee hereby give notice that tion for the payment by the plaintiff had failed, they have completed the allotment of shares, the company being at an end; and further, and that the usual letters are this day issued,” whether the false representation acted upon the and then proceeded to offer as an apology to those plaintiff's mind when he signed the deed. The whose applications had been cut down or passed jury answered the qnestions in the affirmative, over the preference the committee had been and thereupon the learned judge said that the obliged to give to those locally interested or finding entitled the plaintiff to the verdict, and likely to bring to bear on the company a large it was accordingly so entered. To set aside share of legitimate influence in the arduous this verdict and enter a nonusit, or for a new duty of deciding on claims unprecedented in trial, a rule nisi has been obtained on the their number. The advertisement further sets ground of misdirection, and the verdict being forth, that the engineering preparations were so against the evidence, and the case has been refar advanced that the project could not fail to cently fully argued on showing cause against be placed before parliament in a manner the that rule. The argument on behalf of the demost satisfactory to the shareholders. Some fendant is, as at the trial, that the payment was evidence was then given at the trial from which made under a binding contract, and not in conit was to be inferred that the plaintiff had seen sequence of the advertisement; that the adverthis advertisement, and on the 21st of October tisement does not import that all the shares the plaintiff appears to have paid the amount of had been allotted, but if it does, the statement his deposit on the sixty shares which had been is addressed to disappointed applicants, and not allotted to him. At this time it was clearly to the allottees; and if the money had not been proved that in point of fact no more than obtained by fraud, the deed executed by the 58,000 shares had been allotted by the com- plaintiff expressly authorised the application of mittee, although responsible persons had ap- the deposits to the payment of the expenses. plied for more than the whole of the proposed But it was admitted that if the payment had capital. On the 4th of November, the plaintiff been obtained by fraud, the execution of the and others executed the parliamentary contract deed would be no answer to the action, and subscribers' deed, soon after which it was Further it was said, that by attending the meetfound that the plans and sections of the pro- ing of the 15th of December, and there voting

158

Superior Courts : Common PleasExchequer. as a shareholder, the plaintiff had precluded binding contract. We think that is no ground himself from claiming back his deposits; and for a new trial. It was a question, not of fact in support of this latter ground the case of for the jury, but of law for the court, and if a Campbell v. Fleming, 1 Ad. & El. 40, was cited new trial were granted the same questions must as an authority. On the first point this court again be submitted to the jury.

It appears, is of opinion that there was no binding contract however, that after the finding of the jury the on the plaintiff to part with his money when he learned judge said the plaintiff was entitled to paid his deposit : he had applied for shares in the verdict, which must be taken as a direction à concern which was to have a capital of to the jury to find such verdict. If in order to 3,000,0001., in 120,000 shares, but the committee give that direction it was necessary to decide of management had allotted to him shares of a that the letters constituted no binding contract, very different description, whilst they professed the learned judge must be taken to have so deto allot the very thing he asked for; for the cided; and if he had considered that they did letter of allotment, as well as the prospectus, constitute such contract, the direction must described the capital to be 3,000,0001., in have been considered wrong and a new trial 120,000 shares, and it might be reasonable to granted. But inasmuch as the court is of a expect success with that capital, but absurd to contrary opinion, the rule obtained by the desuppose that it could be accomplished for less fendant fails as to this point also, and must than half that amount. The plaintiff having therefore on the whole be discharged. My asked for shares in a practicable scheme, re- brother Williams, having been consulted when ceived shares in one rendered impracticable by at the bar in this case, has taken no part in the the act of the committee in not allotting more judgment. than 58,000 shares, when more than the whole

Rule discharged. capital had been applied for by responsible persons. On the ground also that the letter

Erchequer. of allotment was conditional, we think there is no binding contract. It contained new terms Roche v. Champein. Trinity Term, 24th May, not found in the plaintiff's application for

1847. shares, and is not therefore a simple acceptance PLEADING.-DEBT.-SET-OFF. of the plaintiff's proposal. Such being nur opinion, it becomes necessary to inquire whether

A declaration in debt contained three counts, there is any evidence of the plaintiff having

in each of which 61. 10s. was claimed. The paid the deposits in consequence of a fraudulent

defendant pleaded a set-off covering the misrepresentation, and we think there is ample aggregate of the sums in the declaration, evidence of such misrepresentation. We think

The particulars of demand stated the action the advertisement clearly means that all the

to be brought to recover 61. 108. for money shares had been actually allotted, and that it

lent. At the trial the defendant proved a must be taken to have been addressed to all set-of above 61. 10s. Held, that the plea the members of the concern. To the plaintiff

admitted 61. 10s, to be due on each count, it represents that he had got all that he had and that the plaintiff was entitled to a asked for, -sixty shares of the 120,000, and

verdict. the jury, therefore, were well warranted in find- Debt. The declaration stated the defending that the advertisement was a material in- ant to be indebted to the plaintiff in 61. 10s. ducement to the plaintiff to pay his money, for money lent, and in 61. i0s. for money had having considered the meaning to be the same and received, and in 61. 10s. for money due on as we have done. The next point is, that by an account stated. The declaration in the comattending the meeting of the 15th December, mencement demanded the aggregate of these and acting as a shareholder when he knew that sums-191. 10s. only 58,000 shares had been allotted, the plain- The defendant pleaded a set-off covering the tiff had precluded hiinself from making any whole demand. claim to the deposits on that ground, but of The particulars stated the action to be that point the evidence entirely disposes. The brought to recover the sum of 61. 10s. for only thing done by the plaintiff was to propose money lent. that all the deposits should be returned ; and At the trial before the under-sheriff of Midthe argument comes to this, that having tried dlesex the defendant proved a debt due to him to induce others to join him in claiming back from the plaintiff above 6l. 10s., upon which a the deposits and failed, the plaintiff should not verdict was found for the defendant. be permitted to do so himself. No such doc- A role nisi was obtained to set aside the trine can be found in Campbell v. Fleming, or verdict and for a new trial, on the ground of in any other decided case that we know of. misdirection, inasmuch as upon these pleadings The plaintiff did nothing at the meeting to the plaintiff was entitled to a verdict for 6l. 10s. show his assent to be bound by what passed as Miller showed cause. In an action of debt a holder of sixty shares, and therefore we think the plaintiff was formerly obliged to prove the he is in a condition to maintain the present whole of his demand, or he could not obtain a action. It was further contended, that the de- verdict. But in modern times the action of fendant was entitled to a new trial, because the debt stands on the same footing as the action judge did not tell the jury whether or not the of assumpsit, and the plaintiff may recover for Letter of allotment and application constituted a whatever amount he proves, though less than Superior Courts : Exchequer. Transfer of Chancery Causes.

189 the sum demanded in the declaration. Cousins re Gedge, 2 Dow. & L. 915;. In re Simons, 3 v. Paddon, 4 M. & W.. The plea of set-off, Dow. & L. 156. [Alderson, B. It is much therefore, only admits the amount which the more reasonable that a jury should find a plaintiff is bound to prove in order to entitle verdict according to the Master's taxation, him to recover. A writ of inquiry may be exe- which would be a guide for them. Pollock, cuted in an action of debt. Arden v. Connell, C.B. It appears from the case of Weymouth 5 B. & Ald. 885.

v. Knipe, 5 Dow. P. C. 495, that an agent's bill Bovill, in support of the rule, cited Rodgers was expressly excepted out of the 2 Geo. 2, c. v. Maw, 4 Dow. & L. 66,

28, by the 12 Geo. 2, c. 13, 8.-3. The 6 & 7 Per Curium. The defendant should have Vict. c. 73, contains no such exception.] pleaded the set-off as to 61. 10s., and never in- Secondly, there were not special circumstances debted as to the residue. If there had been no to take the case out of the proviso in the 37th plea at all, the plaintiff would have been entitled section, " that no such reference, as aforesaid to sign final judgment for the amount demanded shall be directed upon an application made by in the declaration, namely, the aggregate of the the party chargeable with such bill after the sums in the three counts (191. 10.,) but he expiration of twelve months after such bill shall could only have issued execution for the have been delivered, except under special ciramount actually due (61. 10s.) The plea admits cumstances, to be proved to the satisfaction of 191. 10s, to be due, and alleges a set-off at least the court or judge to whom the application for equal to that sum. But the defendant only such reference shall be made.” In this case proves a set-off to the amount of 61. 108. With the defendant might have obtained an order respect to issuing a writ of inquiry in debt, it is for the taxation of the two first bills, although found in practice to be much more beneficial to they were not signed. In re Pender, 2 Phillips, suitors that there should be no writ of inquiry. 69. They know that if they levy execution for more Pollock, C. B. My brother Alderson's order than the amount really due, the court will set is to tax the signed bill, and that has been deit aside,

livered within twelve months. Rule absolute. Alderson, B. The delivery of a signed bill

within twelve months is a special circumstance Billing v. Coppock. Trinity Term, 25th May, reading of the statute implies that the party

upon which the party may act. The ordinary 1847.

may tax within twelve months after the delivery ATTORNEY.-BILL-TAXATION. of a signed bill. The Lord Chancellor has de.

cided that the statute has a more extensive In the year 1840, an attorney in London em

operation, and that an unsigned. bill may be ployed an attorney at Cambridge to prose- taxed. cute a person for bribery. There was no

Rolfe, B. If it were not so, an attorney agreement as to agency charges. In the year 1841, a bill was delivered, and another might deliver an unsigned bill, and then tie by

a twelvemonth, and afterwards deliver a in the year 1842, both unsigned. In the signed bill, and so prevent the taxation altoyear 1847, a signed bill was delivered, and

gether. a month afterwards an action was com

Rule refused. menced. A judge at chambers having made an order to tax the bill : Held, on motion to rescind the order, that the bill was tax- TRANSFER OF CHANCERY CAUSES. able, (overruling In re Simons, 3 D. & L, 156), and that the delivery of the signed

From the Vice-Chancellor of England to the Vicebill was a "special circumstance"

which authorised the taxation, although the de- Chancellor Sir J. Wigram, by order of the Lord

Chancellor. fendant might have taxed the unsigned bills.

Dickenson v. Callbeck. Martin moved to rescind an order of Alder

Fagge v. Fagge, son, B., referring an attorney's bill for taxation.

Morrison v. Hoppe It appeared that in the year 1840, the defend

Ditto v. King

} ant, who is an attorney in London, employed

Rimell v. Wheatley. the plaintiff, an attorney at Cambridge, to pro

Parry v. Howell. secute a person for bribery at the Cambridge

Attorney-Gen. v. Croft.

Bateman v. Wilks. election. There was no agreement as to agency

Kincair v. Nunn, charges, but the plaintiff was to have the entire

Beech v. Ford. profit. Two bills of costs were delivered, one

Brierley v. Andrew, in the year 1841, and the other in the year

Lewis v. Damex. 1842, but neither were signed. In the begin.

Hunt v. Peacock, ning of the present year the plaintiff delivered

Darnell v. Swift. a signed bill for the same business, and a

Ward v. Price. month afterwards commenced the present

Halford v. Stone. actiob. The defendant thereupon obtained the

Sheffield v. Von Donop. order to tax. It was 'submitted-first, that the 9th June, 1847. 6 & 7 Vict. c. 73, 8. 37, did not apply to the case of one attorney employed by another. In

IN MIDDLESEX

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160 Common Law Sittings.-Business of the Courts.-Par. Proceedings.-Letter Box. COMMON LAW SITTINGS.

Debtor and Creditor. For 2nd reading.

The Lord Chancellor.
Erchequer of Pleas.

Repeal of Insolvency Jurisdiction of Courts

of Bankruptcy, Abolishing Court of Review, After Trinity Term, 1847.

and Reducing Number of Commissioners. (No.

2.) In Select Committee. Lord Brougham.; Monday June 14 Common Juries.

Threatening Letters. For 2nd reading.

Lord Denman. Tuesday

15 | Custom and Common Wednesday. 16 ) Juries.

Clergy Offences. In Committee.
Thursday • 17 Excise and Common
Friday
Juries.

House of Commons.
Saturday

19

} Monday

NEW BILLS IN PROGRESS.
Common Juries.

21 Tuesday

City Small Debts Court. In Committee. Wednesday

Mr. Masterman, Thursday

Special and Com. Juries. Law of Railways. Mr. Strutt. Friday

25 Saturday .

For the Speedy Trial and Punishment of 26 Monday 28

Juvenile Offenders. In Committee. Sir John
Pakington.

Lunatic Asylums Regulation. Att.-General, Tuesday June 15 To Adjourn only.

Inclosure Act Amendment. Sir F. Thesiger.

Health of Towns. Lord Morpeth.
Wednesday

Adjournment Day, Com.
29{
mon Juries.

Towns Improvement Clauses.
Wednesday 30

Taxation of Costs on Private Bills. To be Thursday

July
Common Juries.

reported. Mr. Hume.
Friday
Saturday
3

Registration of Voters. For 2nd reading.

Mr. Walpole. Monday

5 Tuesday

Highways. In Select Com. Sir Geo. Grey. Wednesday Special and Com.Juries.

Administration of the Poor Laws. Sir Geo. Thursday

Grey. 9 Saturday

Copyhold Commission Continuance.

Turnpike Acts Continuance.
The Court will Sit at 10 o'clock.

Loan Societies Continuance.

Ecclesiastical Courts. Mr. Bouverie.
BUSINESS OF THE COURTS.

THE EDITOR'S LETTER BOX.
Erchequer.
Tuis Court will hold Sittings on Friday the 18th

“A Juvenile Subscriber” will find the dis. of June instant, and on every following day tinctions he has referred to, between the prothenceforth, (Sundays and Wednesday the 23rd visions of the Small Tenements’ Act, (1 & 2 day of June instant excepted,) until and including Vict. c. 74,) and the remedy given by the Thursday the 8th day of July next; and at such County Courts' Act against tenants holding sittings will proceed in disposing of the business over, adverted to at some length, ante, p. 18. then pending on the paper of Demurrers ; and in As we read the latter act, the judges of the new the paper of New Trials, together with all motions

courts have no jurisdiction, under the 122nd appointed to be brought on with any canse standing section, when the value of the premises exceeds in the New Trial Paper ; and also in giving Judg: 501. by the year, although the rent may be less ment upon the Special Cases, Rules, and Motions then standing for judgment.

than 50l. a year, or where the rent exceeds 501. a year. The intention of the legislature, it may

be inferred, was not to subject the tenants or PROCEEDINGS IN PARLIAMENT RE- occupiers of properly beyond the prescribed LATING TO THE LAW.

value to the summary mode of proceeding

pointed out by the section reserred to. In this, House of Lords.

as in other particulars, however, the late act is NEW BILLS IN PROGRESS.

ambiguous and difficult to understand. Consolidation and Amendment of the Law

The case of Hilton v, Lord Granville, reof Bankruptcy. For 2nd reading. The Lord ported p. 134, unte, was decided in the Full Chancellor.

Court Q. B.

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