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The Legal Observer.
SATURDAY, FEBRUARY 22, 1840.
Quod magis ad nos
SHARES IN JOINT - STOCK soundness of Lord Tenterden's opinion in
Bryan v. Lewis, and this case of Wells
v. Porier was confirmed by the subsequent The law as to shares in joint-stock com- decision of Ebsworth v. Cole.d panies is still in so unsettled a state, and is And in a very late case,e the rule laid yet, from the large capital embarked in them, down in Bryan v. Lewis has been disreso important, that we lose no opportunity garded. In this case the plaintiff conin bringing before our readers every case tracted to sell to the defendant fifty shares connected with them as early as possible. of the Brighton Railway Company, to be -We now invite their attention to two cases, transferred on the 1st of March, 1839, very recently decided, which bear on this and the defendant pleaded in bar of the subject.
contract, that at the time of the agreement In the case of Lorymer v. Smyth,a Lord ' plaintiff was not possessed of the shares, nor Tenterden, C. J., said, “the bargaining to had a reasonable expectation of becoming deliver corn not then in possession of the possessed thereof, otherwise than by purvendor, and relying upon making a future chasing the shares after the time of purchase in time to fulfil his undertaking, making the agreement.
In the course was a mode of dealing not to be encouraged," of the argument Mr. Baron Maule, said, and in the case of Bryan v. Lewis, the " that if Lord Tenterden's doctrine was supsame learned Judge at nisi prius held, ported, it would render void all contracts to that where the agreement was that the supply the army and navy, workhouses, and goods should be delivered by a certain day, almost every public institution ;” and Baron and the vendor, at the time of the con- Parke delivered the following judgment:tract, neither had the goods in his possession “I have also entertained considerable nor had any reasonable expectation of ob- doubt and suspicion as to the correctness of taining them by consignment, but intended Lord Tenterden's doctrine in Bryan v. Lewis, to go into the market and buy them, this Ry. & M. 386 : it excited a good deal of was a wagering and improper speculation, surprise in my mind at the time, and when and the vendor could not maintain an action examined, I think it is untenable. I cannot for nonperformance of the contract. But see what principle of law is at all affected this case has been much shaken, and may by a man's being allowed to contract for now be considered entirely overruled. In the sale of goods, of which he has not posthe case of Wells v. Porter, a plea to an session at the time of the bargain, and has action for work and labour, that the work no reasonable expectation of receiving. was done by the plaintiff as a broker, in Such a contract does not amount to a wager, making time-bargains in foreign funds, inasmuch as both the contracting parties was held bad on demurrer; and Bosanquet, are not cognizant of the fact that the goods J., there expressed his doubts as to the are not in the vendor's possession ; and even
if it were a wager, it is not illegal, because a 1 B. & C. 1 ; 2 D. & R. 23. b 1 Ry. & Mor. 336.
d 2 Mee. & W. 31. C 2 Bing: 722; 12 L. O. 219.
e Hibblewhite v. McMorine, 5 M. & W.462. TOL. XIX.-- NO. 575.
Shares in Joint Stock Companies. it has no necessary tendency to injure third subscriber to the company, and it limits the parties. The dictum of Lord Tenterden, cer- answer to be given to that claim of debt; tainly, was not a hasty observation thrown if he has not paid the sum which is so called out by him, because it appears from the for, ‘the company shall be entitled to recase of Lorymer v. Smith, i B. & C. 1 ; 2 cover what shall appear due on such calls, D. and R. 23, that he had entertained and unless it shall appear that the principal expressed similar notions four years before. monies previously paid on any such share, He did not indeed, in that case, say that together with such call, exceed the sum of such a contract was void, but only that it 501, If we were to grant the pleas which was of a kind not to be encouraged; and are sought to be used as defences to the the strong opinion he afterwards expressed action, we should be repealing those direcappears to have gradually formed in his tions of the 148th section of the statute, mind during the interval, and was no doubt which enact that the money shall be recoconfirmed by the effects of the unfortunate verable upon certain proof being given to mercantile speculations throughout the the plaintiff. This being a debt created by country about that time. There is no indica- act of parliament, it is clear it was perer tion in any of the books of such a doctrine intended that, in calling on a Court to dehaving ever been promulgated from the cide whether a sum for the subscription Bench until the case of Lorymer v. Smith, is due or not, the parties should litigate matin the year 1822; and there is no case ters which belong to another forum; if the which has been since decided on that au- subscribers are dissatisfied with the mode in thority. Not only, then, was the doubt es - which the money is applied, the proper place pressed by Bosanquet, J., in Wells v. Porter, and time to dispute that, is when a general (2 Scott, 141; 2 Bing. N. C. 722,) well meeting is called ;- they are there to ex. founded, but the doctrine is clearly con- press their disapprobation of the conduct of trary to law. This plea, therefore, is bad the directors. Or if the general meeting is in substance, and it is unnecessary to con
at a great distance, and the question cannot sider whether it is bad in form.”
be delayed, and there is a sufficient number In the other casef to which we would ad- of persons to dispute, the propriety of the vert, by the terms of a Railway Act the proceedings, they can call a special meeting directors were entitled to recover for calls by giving twenty one days' notice thereof. in arrear, upon proving that the defendant It seems to me it was never intended, nor was a proprietor, and that notice of the calls ought it to be allowed, ibat so general was given according to the act, unless the a question as that should be litigated in defendant should prove that he had paid the question whether a call is due from the full amount of his subscription. De- an individual subscriber. The next plea fendant having pleaded to an action for on which it is contended the defendant calls, that he was not indebted, and was has a right to rely, puts the last question not a proprietor, the Court refused to allow in a more tangible and close
compass; him to add pleas that due notice of the calls for it states that there has been a deviation was not given; that no time or place was from the original line, and that the money appointed for payment; that the calls were is called for in respect of such deviation. made for purposes other than those war
The effect of allowing such an answer as ranted by the act; that they were made this would be, that if there is any deviation after deviations in the line, and that fewer to the extent of three yar is, with the conshares were allotted than the act required. sent of the person whose lands immediately It will be observed that this decision adjoins, and at the wish of the directors turned a good deal on the construction of and of the company generally, every individ-:the particular act, especially as to the three ual subscriber, from the moment that devia first pleas; but the following portion of the ation is made, may stay his hand and refuse judgment of Tindal, C. J., appears to us of his call, and the whole concern be broken great importance, so far as the general up altogether. Such a proposition cannot for question is concerned.
a moment be sustained. The last plea which “ The only possible ground on which the is sought to be placed on this record, is, complaint can be urged by the defendant is, that at the time the calls were made, there that the monies were applied in a way dif- were not 36,000 shares in the company. ferent from that directed by the statute. Let us just see on what that stands. The The act makes the call a debé due from the 136th section of the act enacts that not. f London & Brighton Railiony Company v. scription deeds or contracts relating to the
withstanding anything in the several sulWilson, 6 Bing. N. C. 135.
The Precedence of Prince Albert.
307 said several lines, the capital of the company and appointed to him in our High Court of hereby incorporated shall be 1,800,0001., Parliainent, as is convenient and necessary, as divided into 36,000.' I cannot see how it well as in proximity of blood unto us, being
as well as for the better is possible to say there are not 36,000 maintaining and conducting of our affairs: shares : there may not be 36,000 called We have, therefore, as well by the consent of into action on which the subscriptions are our said uncle, as by the advice of other the sent in and the money forthcoming; but if Lords and the rest of the Privy Council, there is the capital of 1,800,0001., the act willed, ordained, and appointed, that our said says it is divided, and there are the 36,000 uncle shall sit alone, and be placed at all times shares, if not in fact, yet in contemplation of
in our said Court of Parliament, law. It seems to me, therefore, that it is upon the bench or stole standing next our seat
royal, in our Parliament Chamber. And not an available ptea. All the pleas sug- further that he do enjoy all such other privigested seem to me rather calculated to leges, pre-eminences, &c. &c.
The statute raise difficulties than to put forward any concerning the placing of the Lords in the just ground of defence.”
Purliument Chamber and other assemblies of council, made in the thirty-first year of our most
dear futher, of famous memory, King Henry PRECEDENCE OF PRINCE ALBERT. Peerage.)
VIII, notwithstanding. (Rymer, 15; Collins'
“ This instrument must, under the circum. We have already endeavoured to state the stances, be taken as the act of Somerset him. law respecting the precedency of Prince self; and it is inconceivable that he should Albert, (see ante, pp. 273, 274). A pam- behalf, that for which the plenitude of Henry
have had the audacity to attempt in his own phlet has been subsequently published, en. VIII.'s power had been deemed insufficient, titled “ The Precedence Question,” which or to have perpetrated in the name of a minor mainly confirms the view we have taken, king, a direct and useless violation of a recent and adds some additional facts in support of statute,-more especially when the same ob. them. The writer, (who is said to be a ject might have been as easily accomplished gentleman of considerable rank in the Privy by the authority of Parliament, where the Council,) after quoting the authorities we
Protector's popularity would have ensured a have already cited - pretty much in our own of the case receives confirmation from the
ready compliance with his wishes. This view words,- Blackstone, Lord Coke, and Selden, total absence of any allusion to this grant in comes to the conclusion that the 31 Hen. 8, the charges which were soon afterwards urged c. 10, did not restrain the prerogative of against him-every thing that malice could the Crown as to precedency, except so far devise was raked together for the purpose of as the words of that statute extend.
swelling the articles of impeachment, but nei. “ There exists what may be deemned very rate, nor afterwards when he was deprived of
ther when he was degraded from the Protecto. fair evidence, to show that in those days the life, was any accusation brought against him, royal prerogative as to precedence, was never sending to shew that these letters patent were supposed to be abridged by this act, but on considered illegal or unconstitutional.” the contrary that it still continued to flourish in undiminished force. Only two months And the writer goes on to consider the afterwards Henry was divorced from Aune of precise effect of the statute, and he points Cleves, when, as is well known, le bribed her out incidentally the peculiar situation of into compliance with his wishes, by a liberal Prince George of Cambridge. grant of money and of honours. By his letters patent he declared her bis adopted sister, and
It may seemn surprising or paradoxical to gave her precedence before all the ladies in that Prince George of Cambridge is entitled
assert, and many may with difficulty belicve, England, next his queen and daughters, and therefore before his nieces and their children, lis royal birth, but such, nevertheless, is un
to no precedence of his own, inseparable froin who were directly in the succession to the doubtedly the fact
. By law, he can only take the 3d November, 1547, Edward VI. granted royal rank, as the son, brother, uncle, or neto his uncle, the Duke of Somerset, inmedi- which he is, and he derives none whatever
phew, of the reigning Sovereign, none of ately after bis victory in Scotland, letters from having been nephew of William IV. and patent of precedence, in the following terms: .“ As our most dear uncle Edward, Duke of George IV., and
grandson of George III. The Somerset, by the advice of the Lords, we have princes of the Blood Royal have, as to prece
dence, a moveable and not a fixed status, connamned
to be governor of our person stantly shifting, with their greater or less and protector of our realın
during our minority, hath no such place appropriated the event of Prince George's succession to his
propinquity to the actual sovereign; and in The Duchess of Suffolk, and the Countess father's dukedom, he would only be entitled of Camberland, daughters of Charles Brandon to a place in Parliament and in the Council, and Mary, Queen Dowager of France,
according to the ancienty of his peerage,
The Precedence of Prince Albert.
“The practice, however, does not wait upon “ The result, then, appears to be, that in the right, and is regulated by the universal the olden time, the king had unlimited power sense and feeling of the respect and deference in matters of honour and precedence, and which is due to the Blood Royal of England. could confer whatever dignity or pre-emninence The Archbishop of Canterbury does not take he thonght fit, upon any of his subjects. That a legal opinion or pore over the 31st of Henry this power has been expressly restrained, quoad VIII. to discover whether he has a right to the Parliament Chamber and the Council, but josile for that precedence with the cousin, exists unfettered in all other respects. which he knows he is bound to concede to “ In Parliament, (should Prince Albert be the uncle, of the Queen ; but he yielils it as a created a peer), he would only be entitled to matter of course, and so uniform and unques a seat at the bottom of the degree to which he tionable is the custom, that in all probability Inight belong, and he would be expressly proneither the prince nor the prelate are con- bibited froin sitting nearer to the throne. In scious that it is in the slightest degree at va- the Privy Council, likewise, (if made a Privy riance with the right.
Councillor) be would be entitled to no especial “ The obscurity which involves the question place, but every where else, at ceremonials of of precedence, and the prevailing doubts as to every description, at royal marriages, cbristenthe extent of the royal prerogative, proceed, in ings or funerals, at banquets, processions, and a great measure, from the intermixture of courtly receptions, at installations and investilaw and custoin, by which the practice is re- tures, at all religious, civil, or military celegulated and enforced. The table of prece. brations, upon all occasions, formal or social, dence, the authority of which is recognised for public or private, the Queen may grant to her all social and ceremonial purposes, rests upon husband an indisputable precedence and prestatutory enactments, ancieni usages, and the eminence over every other subject in the king's letters patent; usage creeping in to realın. It will probably be less difficult to disarrange the order, and break the links of obtain a concurrence of opinion as to the the chains forged by the law; for, while the extent of the Queen's constitutional right in 31st of Henry Vill. places earls after mar. granting precedence, than as to the manner in quises, custom interposes and postpones the which it would be morally fit, and just to former to the eldest sons of dukes, and so of others, that this right should be exercised.” marquis's eldest sons and viscounts,) though And he thus then the question " upon these are only coininoners in the eye of the law. Now, as no custom (unless expressly
the broad principle of moral fitness.” saved), can prevail against the force of a sta- “ The principle on which precedence is tute, this renders it still more clear, that no- establisbed, is that of propinquity to the sovething was intended by the 31-t Henry VIII. reign, and no propinquity can be so close as but “ the placing the Tords” in Parliament, that of the bushand to the wife, nor does is. and that the question of general precedence, seem unreasonable that all other subjects (svith all the prerogatives of the Crown there- should be required to yield the outward forms unto aprertaining,) was left untouched by of honour and respeci to the man who is eleit. In point of fact, the royal prerogative vated to a station so far above them, whom she always has been, and still continually.is exer- is herself bound to "love, honour, serve, and cised, in violation of the order of ihe estab- obey," and who is superior to her in their lished table ; for when the king, by his royal natural, while still subordinate in their civil warrant, gives to one of his subjects baving and political relations. Many people wbo are neither rank nor dignity, the place and prece- not unwilling to concede a high degree of dence of a duke’s or an earl's son, the indio precedence to the Prince, are very sensitive vidual thus elevated supersedes all those (below about the dignity of the heir apparent, and that rank) whose place and precedence is while ihey are content that he should precede determined either by law or custoin.
his other children, woulil on no account allow him to be superior to a Prince of Wales. The dilficulty in these cases is to establish a prin
ciple, but that dificulty is rendered much b Lord Herbert, in his life of Henry VIII, greater if when th“ principle is once admitted says, in allusion to this statute, “it was de- it is not taken with all its legitimate and necesclared also how the lords in Parliament should sary consequences. If the Prince is entitled be placed,” p. 218.
to claim precedency over any of the Blood c'Lord Coke clearly distinguishes between Royal of England, above all others, he inay precedence in Purliament and Council and claim it upon every moral ground, over his general precedence :—“ Thus far for avoiding own children, nor is there any civil or political contention about precedency in Parliament, consideration in reference to the heir apparent, Star Chamber, and all other assemblies, Com requiring that an exception should be made cil, &c. Now, they that desire to know the in bis behalt. There seem to exist confused places and precedency of the nobility and sub- notions, of something very extraordinary and jects of the realm, as well men as women, and transcendant in the status of a Prince of Wales, of their children, (which we have added the but the difference between him and his younger rather, for that the contention about prece. dency between persons of that sex is even fiery, to a record of great authority in the reign of furious, and sometimes fatal), we will refer you Henry VII., entitled,” &c.—4th Inst. 363.
New Bills in Parliament. - Attorney's Certificate : Re-admission. 309 brother is not very great, and the only positive ings at law, which recites that many good subprivilege with which the law certainly and jects of this realm have been and daily are unexclusively invests the heir apparent, is that of done by such suits, contrary to the intention of inaking it high treason to atteinpt his life.”d the said statute of Queen Elizabeth, but the The writer concludes with a very just and increase ; and that it is expedient to con
same evil, notivithstanding, doth still prevail compliment to the Duke of Wellington, solidate and extend those provisions : and prowhich we have great pleasure in extracting. poses to enact that the two said recited acts of
“It is much to be regretted that such heat the forty-third of Elizabeth and of the twentyand irritation have been manifested in the dis- second and twenty-third of Charles the Second, cussion of this question, and certainly between so far as the same relate to costs in personal the proceedings in both Houses of Parliament, actions, be hereby repealed. Prince Albert may well have thought his recep- 2. That if the plaintiff in any action of tion neither cordial nor flattering ; but the trespass, either to the person or to real or truth is, that any mortification which either personal property, or for libel, slander, or the Prince or the Queen may have félt, (and inalicious prosecution, brought or to be in her it is only natural, whether just or not) is brought in any of Her Majesty's Courts at at least, as attributable to the really objection- Westminster, shall recover by the verdict of a able nature of the propositions which were made jury less damages than forty shillings, such as to the opposition which they encountered. plaintiff shall not be entitled to recover or ob.
“Nothing herein is more to be deplored, tain from the defendant, in respect of such than that any mistaken zeal should misrepre- verdict, any costs whatever, whether it shall be sent the conduct, or any hasty impression given upon any issue or issues tried, or judg. misconstrue the motives of the Duke of Wel- ment shall have passed by default, unless the lington. His whole life has been a continual judge or presiding officer before whom such manifestation of loyalty and of superiority to verdict shall be obtained shall immediately petty purposes, and unworthy inducements; afterwards certify on the back of the record but his notions of loyalty are of a nature which (if the action be in trespass) that the action were courtiers are unable to comprehend, was really brought to try a right besides the because he always considers the honour anil mere right to recover damages for the trespass the interests of the Crown, in preference to or grievance for which the action shall bave the personal inclination of the Sovereign.
been brought. “Of all men who ever lived he has sought the least, the popularity he has so largely ac.
ATTORNEYS CERTIFICATES.quired-the tide of which, sometimes diverted by transient causes, has always returned with NECESSITY OF RE - ADMISSION. accumulated force. With him it is no 'echo of folly, and shadow of renown, but a deep,
To the Editor of the Legil Observer. affecting, almost sublime national feeling, Sir, which exults in him as the living representative The doubtful state of the law upou a subject of national glory. If there be an exception in materially atfecting the interests of the pruany place to this universal sentiment, let us fession, induces me to address you, in order hope that the impression will not endure, that that public attention may, through the medium the cloud of momentary error will be dispersed, of your valuable journal, be called to the point. and that justice, ample and not tardy, will be The question to which I refer is, whether the rendered to
admission of an attorney becomes void by his ««« The noblest man
neglecting to take out his certificate for one That ever lived in the tide of time."" year froin the date of such adinission, or
whether the certificate may be taken out
at any time beyond such period, without à NEW BILLS IN PARLIAMENT.
previous re-admission being required.
The rule acted upon hitherto in the CoinCOSTS IN FRIVOLOUS ACTIONS.
mon Law Ochces, and sanctioned by several This is a bill to repeal so much of an Act of decisions, ainongst others those of Ex parte the forty-third of Elizabeth, intituled “: An Act Jones, 2 Dowl. 451; and Ex parte Marshall, to avoid trifling and frivolous suits at law in 6 Dowl. 526, was, that if no certificate had been Her Majesty's Courts at Westininster,” and of taken out since admission, it might be taken an act of the twenty-second and twenty-third out at any time, although more than a year of Charles the Second, intituled “An Act for had elapsed, and no re-admission would be relaying Impositions on Proceedings at Law,”quired, but that if a certificate had been taken as relates to costs in personal actions; and to out within the year, and the party afterwards make further provisions in lieu thereof. discontinued it for a twelvemonth, his admis
It recites that the 43 Eliz. c. 6, to avoid sion became void, and he could not resume trifting and frivolous suits, and thié 22 & 23 his practice without being re-adınitted. Car. c. 9, for laying inpositions on proceed
The construction seems to depend upon the
words of the statute 37 Geo. 3, c. 90, s. 31, d It is also treason to kill certain judicial which, in dictating the terms of re-admission, officers when in actual execution of their directs that it may “ upon payment of the aroffices. -Hale, P, C. 13. :
rears of duty accrued since ihe expiration of