CT. OF APP.]

the same suggestion as if it had been called "Sun" paper. Being of that opinion, I, of course, agree with my brothers in saying that the appeal ought to be dismissed. Appeal dismissed.

Solicitors for the appellants, Bird, Moore, and Strode.

Solicitor for the respondent, The Solicitor to the Board of Trade.

June 15 and 18.

(Before LINDLEY, LOPES, and CHITTY, L.JJ.) BREAY V. THE ROYAL BRITISH NURSES' ASSOCIATION. (a)

APPEAL FROM THE CHANCERY DIVISION.

Corporation-Association of nurses-Proprietors of class journal-Alleged libel by editor published by instructions of association-Action for libel against editor personally-Defence undertaken by association-Principal and agentIndemnity-Ultra vires-Injunction.

An association of nurses, incorporated by Royal Charter, were the proprietors and publishers of a journal published for the information and benefit of their members. An action having been brought against the editor of the journal to recover damages for an alleged libel contained in an article inserted in the journal by the instructions of the association, they resolved to undertake the defence of the action and to pay any costs and expenses which might be incurred therewith.

Held, that under the circumstances to undertake the defence was not a misapplication of the funds of the association.

Decision of North, J. reversed.

THE Royal British Nurses' Association, incorporated by Royal Charter, were the proprietors and publishers of a quarterly publication called the Nurses' Journal. It was published for the information and benefit of the members of the association, and a copy was sent to each of them.

The compilation and publication of the journal were superintended and controlled by a sub-committee appointed by the executive committee of the association under the powers contained in their bye-laws, which sub-committee was called the journal and library sub-committee. Miss Josephine Lucy De Pledge, a member of the general council and also of the executive committee of the association, was the honorary editor of the journal, appointed by the executive committee; but her duties were purely secretarial, and she did not control or supervise articles which appeared in the journal.

On the 22nd July 1896 the annual general meeting of the association was held. Dr. Bedford Fenwick, one of the vice-presidents of the association, and also a member of the general council and of the executive committee, and Miss Margaret Breay, an ordinary member of the association, took part in the proceedings of the meeting in opposition generally to the views of the majority of the members present.

In the August number of the journal an article was published containing an account of the proceedings at the meeting, together with comments and criticisms thereon, and in particular on the (a) Reported by E. A. SCRATCHLEY, Esq., Barrister-at-Law.

[CT. OF APP.

part which Dr. Bedford Fenwick took in the proceedings. Miss De Pledge was in no way personally responsible for that article, the entire responsibility for the publication thereof resting with the association, who by and through their executive committee caused the same to be published.

In Nov. 1896 an action to recover damages for the alleged libel was commenced by Dr. Bedford Fenwick in the Queen's Bench Division against Miss De Pledge personally, instead of against the association.

On the 5th Feb. 1897 a meeting of the executive committee of the association was held, at which Dr. Bedford Fenwick was present, when the following resolution was passed by a large majority of the members present:

That as Dr. Bedford Fenwick has chosen to commence an action to recover damages for a libel alleged to have been published in the Nurses' Journal of August 1896 against Miss De Piedge rather than against the association, and as Miss De Pledge is merely an agent of the association and in no way personally responsible for the article in question, and the action should therefore have been brought against the association and not against her, and as Dr. Bedford Fenwick is a member of the executive committee, it is desirable that the matter should be and it is hereby referred to the honorary secretaries and the honorary treasurer as a sub-committee with power to take such action as they may think advisable in the interests of the association, and that, in the event of Miss De Pledge placing her defence in the hands of the association, they be authorised to instruct Messrs. Pontifex, Hewitt, and Pitt as solicitors on behalf of the association to defend the action, and that the treasurer be authorised to pay any costs and expenses which may be incurred in connection therewith.

On the 9th April 1897 the quarterly meeting of the general council of the association was held, at which fifty-eight members were present, and the resolution of the executive committee was approved with but very few dissentients.

Shortly afterwards this action was commenced by Miss Breay, and a motion was then made for an interlocutory injunction to restrain, until judg ment or further order, the defendant association, their general council, executive committee, and any sub-committee appointed by such general council or executive committee, and generally the officers and servants of the defendant association, and in particular the defendants John Langton (the bonorary treasurer), Edward Ashby Fardon (the medical honorary secretary), and Florence Dacre Craven (the nurse honorary secretary), from expending any of the funds of the defendant association in defending the action for libel.

The motion came on to be heard before North, J., when the following judgment was delivered:

NORTH, J.-I think that this is a case in which, beyond all question, there is something to be tried. An action is brought against the editor of a newspaper, circular, or journal, call it what you like, for a libel, or what is alleged to be a libel, contained in it. The association, the proprietors of the journal, do not take any steps to adopt the act of the person made defendant, saying that that person was merely their agent in the matter. They are the principals in the matter; they are the persons most interested in defending the

CT. OF APP.]

action, and in asking that they may be added as defendants for the purpose of defending the proceedings taken against a person who is the publisher of the alleged libel and so liable, no doubt, but having between that person and the association the right to be indemnified. They do not take that course at all, and it is not, therefore, a question of defending an action in which they are defendants. But they, having appointed an editor, and that editor having published something in the journal which is alleged to be a libel, the question is whether I ought to refuse an injunction to restrain them from expending any of their funds in defending this action. Is it clear that the funds of the association for the purpose of nursing can be properly applied in defending an action in which the association are not sued, but the editor of their journal is? I think that the question only requires to be stated for the answer to be seen. It certainly is not so clear that the defendants should be allowed to go on expending their funds for such a purpose at present before the trial of the action. I am particularly warned of the inconvenience there might be in doing so, because in the case cited of Pickering v. Stephenson (26 L. T. Rep. 608; L. Rep. 14 Eq. 322), before Wickens, V.C., he took the view that fieri non factum valet, and, although the funds had been improperly applied in defending the action, he declined to make the persons who had improperly applied them refund the amount. That makes it all the more necessary for me in the present case to take care that the funds are not misapplied in the first instance. I think it clear, therefore, that an injunction must be granted until the trial of the action. Of course I should have accepted an undertaking if it had been given, but the defendants refused to give an undertaking, and the injunction must consequently go.

From that decision the defendant association now appealed.

Vernon R. Smith, Q.C. (with him Muir Mackenzie) for the appellants.-The article which forms the subject of the libel action by Dr. Bedford Fenwick was published by the committee who, on behalf of the association, conduct the journal for the information and benefit of their members. It is submitted that the comments and criticisms contained in that article are not libellous and were perfectly justifiable; and the governing body of the association think it right that, inasmuch as the article was published by the association, they should undertake the defence of the action, which has been brought against Miss De Pledge instead of against the association, and justify the comments which the article contained. The association are the proprietors of the journal and are responsible for all comments and criticisms appearing therein, and not Miss De Pledge. Although technically the action brought against Miss De Pledge is an action brought by one member against another, it is an action against her as servant of the association in respect of a matter for which the association are responsible, and the governing body of the association consider that the association are bound, if they have the legal right to do so, to defend the action and protect their officer.

Swinfen Eady, Q.C. and Stewart Smith for the respondent. The association have no right to

[CT. OF APP.

take upon themselves the burden of defending Miss De Pledge in the libel action on the principle of indemnity. [LINDLEY, L.J.-It is going far to say that it is ultra vires to do so, and that an association cannot indemnify the editor of its journal against a libel action.] There is a distinction drawn by the authorities between libel and other kinds of tort. It is an illegal bargain for the proprietors of a newspaper to agree with their editor to stand by and indemnify him against an action for libel:

Shackell v. Rosier, 2 Bing. N. C. 634. [LINDLEY, L.J.-I think I follow that case, but I do not think that it assists you in the present case. It would be contrary to public policy if an association could say to their servant, "In the event of your committing a criminal offence we will expend our funds in defending you," its funds not being subscribed for that purpose. [Lopes, L.J.-But an association might lose the services of a useful servant for a long time if he were indicted and sent to prison, because they refrained from undertaking his defence. LINDLEY, L.J.-You are asking us to draw the doctrine of ultra vires very tight. It is not drawing it tight to say that the funds of this association were not subscribed for the purpose of defending libel actions. It would be to a great extent abolishing the doctrine of ultra vires to hold that this association have the power to apply their funds in the manner proposed. If such a course is permissible, the case of Pickering v. Stephenson (26 L. T. Rep. 608; L. Rep. 14 Eq. 322) must have been wrongly decided. A case which follows Pickering v. Stephenson (ubi sup.) is

Studdert v. Grosvenor, 55 L. T. Rep. 171; 33 Ch.
Div. 528.

The plaintiff might bring an action against the association as the proprietors of the journal after he had recovered damages in his action against the editor of the journal. [LOPES, L.J.-I doubt if he would recover damages from the proprietors also.] As a matter of law an action would lie. [CHITTY, L.J.-That is not disputed.] Then why should the association voluntarily pay the damages recovered against the editor? They would not be justified in paying them. [LINDLEY, L.J.-We must not push the doctrine of ultra vires to such an extreme as to shock common sense.] But neither must the subscribers to this association be shocked by an improper expenditure of their funds, which were subscribed for quite a different purpose. The editor of a newspaper has no right to claim from the proprietors damages which he has had to pay in a libel action:

'Colburn v. Patmore, 1 Cr. M. & R. 73. Where there is even a contract to indemnify, you cannot indemnify in a case like this, nor is there any right of contribution between tort feasors; and to say that this association is to take up the cudgels and fight the case with their funds is contrary to that well-established principle. [LOPES, L.J.-It is important to bear in mind that the association themselves could have been sued in respect of this libel, the editor being their agent, and why should they not defend the action brought against their agent? They might have been sued together in one action.] Supposing there had been such an action, and separate judgments against each

CT. OF APP.]

defendant, there would have been no right of contribution or indemnity. This case differs from a case of a master liable for the act of his servant. In a case of tort there is and can be no liability for indemnity arising from a contract express or implied. At any rate we submit that the learned judge in the court below was right in holding that there was a substantial question to be tried, viz., whether the association are entitled so to expend their funds, and at least the injunction ought to be continued until the trial of the action,

No reply was called for.

LINDLEY, L.J.-It appears to us, now that we understand the facts, that the law would be in a very unsatisfactory state if this judgment could be sustained. Here is a society called the Royal British Nurses' Association which was incorporated for certain objects. The association some time ago started the publication of a journal called the Nurses' Journal. It is suggested in argument that that is a misapplication of the funds of the association. That point is not raised in the pleadings, and it is not open upon the present occasion; but, if it were, I think that there is absolutely nothing in it. If a society of this kind finds that it is for the benefit of the society to publish a journal, and to circulate it amongst the members of the society and the nurses, I cannot conceive that such a course should be ultra vires. It appears to me to be simply an idle contention; but it is not raised, and I do not suppose ever will be. I attach great importance to the fact that the association has been in the habit of publishing this journal, and does publish it. Now, it appears that in July 1896 a meeting of the association was held, and an account of that meeting was published 'with comments in one of the numbers of this journal. How that came about is explained in the affidavit which we have before us of the secretary, Mr. Fardon. He tells us how it happened, and he says that the library subcommittee or the journal sub-committee, as it is sometimes called, were in the habit of employing a lady of the name of De Pledge as their honorary editor of the journal, and that they sent her for publication an account of the meeting with these comments. She put the same into the journal. It is said that that reflected upon a member of the association, Dr. Fenwick, and he brought an action against Miss De Pledge for libel-the libel being the publication of the papers so put into her hands by the orders of the sub-committee. If the publication is a libel, of course we all know that Miss De Pledge will be liable for it. But it is a most important fact in this case that the association will likewise be liable for the very same thing. They published the journal; there is no controversy about that at all. The alleged libel was put into the journal of which they are the proprietors and the publishers, and it was put there by the authority of their sub-committee. To say that there is anything to be tried in the present action as to the liability of Miss De Pledge or the liability of the association is a mistake altogether. There is no question whatever to be tried. Their liability is obvious enough. Now, what takes place? The libel action having been instituted in Nov. 1896, in Feb. 1897 there is a

[CT. OF APP.

meeting of the executive committee-that is to say, of the committee who have the management of this journal—and they pass a resolution which is in substance that they resolve to defend that action against Miss De Pledge. The next thing that happens is that on the 9th April 1897 there is the quarterly general meeting of the council, which is, I understand, a larger body, and they approve of the action of the executive committee, and resolve to defend Miss De Pledge in that action of libel brought against her by Dr. Fenwick. Then some ingenious persons determine that they will try to stop that, and they get a member of the association to bring an action in the Chancery Division to restrain the association from applying their funds in defending Miss De Pledge. The question is, whether such an action is supportable. Now, the learned judge in the court below has held that for the present purpose there is some question to be tried, and he has granted an injunction to restrain the association and their council and executive committee, and so on, from expending any of the funds of the association in defending or otherwise in connection with the action for libel which Dr. Fenwick has brought against Miss De Pledge. On reading his judgment, I cannot help thinking that he has been influenced by a view which I think is incorrect; that is to say, that there was some unwillingness on the part of the association to be sued in the action for libel, or to be made defendants in that action. They cannot make themselves defendants in a libel action; it depends upon the person libelled whether he will sue them or not. But, acting somewhat perhaps in deference to the learned judge's view, they did try to get themselves joined, and they failed. They failed very properly in accordance with the ordinary practice relating to parties to actions. But I cannot help thinking that the learned judge was a little influenced by his view that they were not willing to be sued themselves for this libel. I think that has influenced his mind. I will pass that over as having nothing. in it. Now that, out of deference to him, they have attempted to have themselves joined and failed, there is nothing in it at all. We must. look at the matter with a view to legal principles, and also not forgetting common sense. What is the grievance of Miss Breay, who is the member of this association who is seeking relief from the Chancery Division upon the ground that the funds of the association are being misapplied ? What are the association doing? The association are, under the circumstances to which I have. alluded, in the position of being themselves liable. to be sued, and it is to me as plain as anything can be that, if it had suited Dr. Fenwick to bring an action against Miss De Pledge and the association themselves, he could have done so. It is equally plain to me that, under those circumstances, the association could, of course, have defended that action. They need not have severed from their co-defendant; they were in the same position, and the circumstances to which I have alluded show that they are the persons who, as between them and Miss De Pledge, are really the persons to blame if anybody is to blame for this publication. To say that, under that state of circumstances, they could not have defended the action, including the action against Miss De Pledge as one of the parties, is to me an outrage

CT. OF APP.]

on common sense. Then let us go a step further. Is it to depend upon Dr. Fenwick whether the association are to be at liberty to defend this action which he has brought against Miss De Pledge alone? Can it make any difference in principle whether they are sued together or sued separately, or whether he prefers to sue Miss De Pledge alone? It appears to me that there is nothing whatever which justifies any such distinction being drawn. But let us look a little further. Let us look at the matter in a straightforward untechnical way. What is it that the defendants are doing? Miss De Pledge, a lady acting under the instructions of the association's executive committee, has published a libel in their journal, and they say that they do not care whether Miss De Pledge could sue them and compel them to indemnify her, or whether she could not; but that, under the circumstances, they think that it is right and just that they should defend her from the consequences of what she has done in their interests in their paper, and that they will defend her. Now, supposing this association were not a corporation, is there anything illegal, or immoral, or improper in a master defending his servant or a principal defending his agent in such a case? Absolutely nothing. Can it be said, then, that it is so unbusinesslike that we ought to draw a sharp distinction, and say that, although an ordinary principal can do it, a corporation cannot do it, even if it is in the same position towards the person whom it defends as if it were an ordinary individual. It would be saying that a corporation cannot do in any ordinary matter of business what everybody else conducting the same kind of busi ness can do. That appears to me to be a proposition which cannot be sustained at all. The very same principle was endeavoured to be applied, and was started, in the case of Taunton v. The Royal Insurance Company (2 H. & M. 135), where a gunpowder ship exploded in the Mersey, and where an insurance office intended to pay the damages which occurred from that explosion although not covered by the policy of insurance which they had issued. Wood, V.C. pooh-poohed the objection. He said that it was the ordinary course of business for such damages to be paid, whether actually within the policies or not; that it was a good advertisement and a business way of getting business, and the objection was laughed at. Now, should not we be laughed at if we were to say that a corporation could not defend actions against its servants in a case such as this? It seems to me that it would be absolutely an outrage on common sense. There is absolutely nothing to be tried in this action which justifies the view that the injunction should go until the trial. The appeal must therefore be allowed and the judgment discharged, and the plaintiff must pay the costs of this application both here and below.

LOPES, L.J.-This case, when it is understood, to my mind appears perfectly clear. I arrive at the conclusion that the learned judge in the court below is wrong in the decision which he has given. Now the facts that need be stated to show what I mean are very few and very simple. Miss De Pledge is the editor of a certain journal published by this association. She had placed in her hands by a sub-committee of that associa tion a certain document which is said to contain libellous matter. She published it, and she caused

[CT. OF APP.

it to be circulated. Now, whose publication was that? She was the agent of the association acting within her authority. In fact, the very document, as I have already said, had been given to her by the association. Surely the publication is the publication of the association, and the association are liable in the action that has been brought against her. Why it was brought against her and not against the association, I do not know. It might have been brought against both of them together; but beyond all question it is really the publication of the association, and they are liable. Now, in those circumstances, an action, as I just said, has been brought against Miss De Pledge, and thereupon a resolution was passed by which it was determined that the funds of the association should be applied in defending it. It is now said by a member of the association, who comes forward and seeks an injunction, that the funds of the association are being improperly applied when they are used for the defence of Miss De Pledge in that action, and that an interim injunction ought to be granted. Now, just look at it in this way. If the plaintiff, Dr. Fenwick, had brought the action against the association, either alone or together with Miss De Pledge, beyond all question, if a verdict was to be found in favour of Dr. Fenwick, the association would be liable for damages and costs. There would be no doubt about that. But is it to be said that, because Dr. Fenwick, for reasons best known to himself, has thought proper not to bring the action against the association alone or with Miss De Pledge, but has determined to bring it against her alone, that the association are to escape entirely, and that Miss De Pledge is to be called upon to pay damages and costs? It seems to me against common sense and justice, and everything else. In my opinion it is a doctrine which cannot for a moment be maintained. I think that the learned judge in the court below arrived at a wrong conclusion when he held that an injunction. ought to go.

CHITTY, L.J.-I agree, and it is not necessary that I should add more than a very few words. For the respondent it was suggested here at the Bar that the publication of the journal was ultra vires. That point is not raised in the pleadings, nor was it ever suggested, as far as I can make out, until some time during the argument before North, J. There is nothing whatever in that point. The nature of the journal is this: It contains information and is circulated among the members for the purposes of telling them that which is of use to them to know with reference to the affairs of the association itself. No possible construction, in my opinion, of the charter would justify this court in holding that the publication of that journal was ultra vires. Now, what are the defendants in this action doing? They have resolved by the proper authoritative body that if Miss De Pledge will intrust her defence to them they will undertake it and pay the costs. Now, clearly the journal is the journal of the association, and it is clear that the association might have been joined as defendants in the action of libel which Dr. Fenwick has brought. I am unable to find out any special reason why, but Dr. Fenwick, quite within his rights, selected Miss De Pledge alone as the defendant. Now, what is her position? She is the honorary editor of this journal, and she published that which is

CT. OF APP.]

alleged to be a libel upon the instructions of a sub-committee that has charge of the journal, lawfully appointed by the executive committee that has the management of the affairs of the association for the purposes of any question that is here raised before us. That is her position. She, as honorary editor, merely took the manuscript which was intrusted to her, put in a number of paragraphs, and sent it in in the ordinary way for publication. Of course she is liable if there has been a publication on her part, and I will assume, without deciding it, that she is responsible in the libel action. Then it is said that it is an action of tort, being an action of libel, and that no contract of indemnity would be good. Let all that be granted; but what she has done has been simply-to put it in a legal form-done as the agent or the servant of the association. She is liable, of course, for her own acts according to the law of libel. But the association, certainly on the facts, are liable in respect of this libel, if libel it be; and, supposing that they had been joined as defendants, there would have been a separate liability upon Miss De Pledge and a separate liability on the association. I cannot conceive that it would be within the bounds of reason to hold that in such an action the association could not have applied its funds for the purposes of the defence generally. Mr. Swinfen Eady says that they could not apply them for any part of the defence, so far as related to Miss De Pledge. I think, with great respect to him, that that is an absurd proposition. I agree that probably North, J. had it in his mind, and it formed some ground for his judgment, that the association were not willing to be made parties to the libel action. But an attempt has been made on their part since that judgment was delivered to get themselves made defendants in the libel action. That, however, was an application which could only meet with one fate if opposed by Dr. Fenwickand certainly it would be opposed and was opposed by him-it must be refused. Dr. Fenwick is entitled to say: "I will not sue anybody but one person in respect of this libel; there may be half a dozen persons liable to me-about that I care not; I will sue Miss De Pledge, and Miss De Pledge alone." Now, I think that it is a mere matter, as Lindley, L.J. says, of ordinary business, and it would be pushing the doctrine of ultra vires to an absurd extreme if we held that this was not a lawful application of the funds of the association. It is a defence by the masters of the servant-using the term "servant" in no invidious sense to Miss De Pledge. It is in respect of their act; it is in respect of their publication, because morally as between the two she is not to blame in any way. It seems to me a matter of ordinary common sense that the result is that they can expend their funds in defending this action for her, seeing that she was acting within the scope of her authority and on the instructions of the body having the control of the journal within the terms of the charter. The result of the action if it were to succeed would be injurious to the association themselves. The association have a common interest in defending the journal in respect of this charge of libel. The only remaining point that I need mention is that it is suggested there is something to try. Mr. Swinfen Eady, when pressed upon the point at the conclusion of his argument, could only find this, that

the question to try was a question of law. So that we have all the facts before us, and it is a matter turning simply upon the documents. We have all the facts that in any degree and in any way can be considered material. In my opinion the proposed application of the funds of the association is not ultra vires, and I concur in the judgments that have already been delivered.

Appeal allowed. Solicitors for the appellants, Pontifex, Hewitt, and Pitt. Solicitors for the respondent, Mear and Fowler.

June 28 and 30.

(Before LINDLEY, LOPES, and CHITTY, L.JJ.) DURRANT v. THE BRANKSOME URBAN DISTRICT COUNCIL. (a)

APPEAL FROM THE CHANCERY DIVISION.

Local government-Drainage-Surface water from road-Right to discharge into natural watercourse- -Public Health Act 1875 (38 & 39 Vict. c. 55), ss. 15, 16, 17, and 308.

The plaintiffs were the owners of an estate in the neighbourhood of a certain town, part of which estate was laid out for building, and which included a portion of the course of a small stream. Three roads upon this estate, situated within the natural watershed of the stream, and originally laid out by the plaintiffs, had been taken over by the defendants, the urban district council, after they had constructed a system of drains and sewers for them under the powers of the Private Streets Works Act 1892. In the scheme originally proposed by the defendants the surface water from these roads was allowed to flow into the sewers; but, the Local Government Board having refused to sanction any scheme which did not provide a separate system for carrying off the surface water, the defendants had provided such a system by drains which discharged the surface water into the stream. The defendants' drains were furnished with catch pits, the best known method of intercepting sand and silt. The plaintiff's nevertheless objected that the water so discharged carried with it a great quantity of sand, silt, and other solid matter washed off the roads, and was much more in quantity than would have naturally flowed into the stream, and that its discharge into the stream would injure the plaintiffs by causing floods and silting up the stream. They accordingly brought an action to restrain the defendants from permitting any water, sand, silt, or other solid matter to flow through their drains into the stream.

Held, that sects. 15, 16, and 17 of the Public Health Act 1875 clearly authorised the defendants in doing what the plaintiff's complained of; and that the plaintiffs must be content with the remedy by way of compensation afforded by sect. 308.

Decision of North, J. affirmed.

APPEAL by the plaintiffs from a decision of North, J. (ante, p. 486).

Swinfen Eady, Q.C. and E. A. Hadley for the appellants. The works of which the plaintiff's

(a) Reported by E A. SCRATCHLEY, Esq., Barrister-at-Law.