THE JURIST.

LONDON, OCTOBER 11, 1856.

A CASE was decided not long ago by Sir R. T. Kindersley, V. C., which has an important bearing on the responsibility of directors and shareholders in a ruined joint-stock company. The name of it is Evans and Others v. Coventry and Others, and it is reported in 2 Jur., N. S., part 1, p. 557, and 25 L. J., Ch., 489.

The unfortunate company was known as "The General Benefit Life Insurance and Loan Society," and was formed in 1820 for the purpose of granting life insurances, annuities, and allowances during sickness. An elaborate deed of settlement professed to regulate the proceedings and conduct of the society. By its provisions the capital was to consist of 50,000., in 1000 shares of 50l. each. This was also the amount of capital stated in the prospectus, and advertised. The funds of the society were alone to answer the claims of persons insuring and annuity creditors, and the directors signing the policies or annuity deeds were to be personally liable only for the application of the funds in discharge of the money thereby secured, and not further, and the shareholders were to be liable only to the extent of their shares. No dividends were to be declared except upon certain events, which never happened. The society effected a great many insurances, and carried on its business until September, 1854, when its manager absconded with some thousands of pounds. The directors thereupon closed the concern, declining to pay or receive anything on its account. Irrespective of the loss by the manager, the capital had never exceeded 22,5007., instead of amounting to 50,000l.; only 450 shares had been taken instead of 1000, and only 21. 10s. had been paid on each share. Some of the directors had misapplied the funds of the society; bought up shares with the society's funds, which the deed did not authorise; paid each year a dividend of 51. per cent. on every share, when no dividend at all

VICE-CHANCELLOR STUART'S COURT.

By T. F. MORSE, Barrister at Law. Booth v. Alington-Alington v. Booth.-(Will-Construction-Power-Appointment—Abatement) ..

VICE-CHANCELLOR WOOD'S COURT.

By MATTHEW B. BEGBIE, Barrister at Law. In re The Court Grange Silver-lead Mining Company, Ex parte Sedgwick.—(Winding-up Acts-Contributory)

Child v. Douglas.-(Injunction-Covenant not to build -Covenant running with the land)

950

COURT OF QUEEN'S BENCH.
By G. J. P. SMITH, Barrister at Law.

Mennie v. Blake.—(Replerin—Non cepit-Bailee of goods-Delivery by bailee to defendant-Wrongful detention)

COURT OF EXCHEQUER.

953

By W. M. BEST, Barrister at Law. Wiggett v. Fox.-(Injury by negligence-Master and servant-Sub-contractor-9 & 10 Vict. c. 93).... 955

ought to have been declared, and when the concern was in a ruinous state; and further than this, by reason of miscalculations in the tables of the society as to the chances and the rates of premium, it appeared that the society must have become bankrupt sooner or later, if the directors and manager had not accelerated its end.

Under these circumstances eleven of the insured filed a bill, on behalf of themselves and the other insured, praying for relief against ten shareholders of the society.

The first question was as to the parties to the suit; and it was held that the interests of the plaintiffs were identical with the rest of the insured, in number about 2000, so that they might represent them, although some had received policies, and others had only tickets entitling them to demand policies after paying their premiums for six months. So, with regard to the defendants, it being shewn that there was great difficulty in ascertaining the names of the other shareholders, and the defendants themselves being unable to designate them, the plaintiffs were held to be entitled to relief against such as could be brought before the Court.

Each shareholder was decreed to be liable only to the extent of the unpaid portion of his share in the capital of the concern, and not to the full extent of the sum advertised as the capital of the society, namely, the 50,000. One of the defendants was the executor of an original shareholder, and he was held liable only to the extent of the assets of the testator.

The most important questions, however, had reference to the responsibility of the directors; and with respect to them it was adjudged, first, that those who had been parties to declaring the dividends were liable to make good the amount of them; and, secondly, that those who had bought up the shares with the funds of the society were liable for the amount so applied, and the sums which would otherwise have been received in respect of such shares.

11

fishing interrogatories to discover a cause of action; or appear and defend an action, and then file interrogatories to find out a defence?" The Court clearly inclined to exercise only in special cases their discretionary power of allowing interrogatories before declaring or

LAW PROCEDURE ACTS.

3.-Interrogatories.

We last year (vide 1 Jur., N. S., part 2, p. 188) directed attention to this important part of practice, and pointed out, as one great advantage, the giving to parties in a suit such early information as may tend to prevent further litigation; and since our former article there have been several cases as to the time for administering interrogatories. There may be a commission to examine witnesses even before declaration, if the affidavit disclose special grounds, and enough of the nature of the action to shew the materiality of the evidence. (Finney v. Beesley, 17 Q. B. 86). In a later case this was cited; and per Parke, B., "The general rule is, that a commission will not be issued before issue joined; though there are exceptions – as, for instance, where it is clear what the issue must be, and the party whom it is proposed to examine is about to leave the country, as he was in that case." (Martin v. Hemming, 18 Jur., part 1, p. 1002). And though ordinarily there is no obligation to deliver particulars before declaration, and the special indorsement on the writ, in cases of debt or liquidated demand, is optional, yet if made it operates as particulars, and enables the defendant to apply for "further and better" particulars; (Fromont v. Ashley, 22 L. J., Q. B., 237); and on special grounds, whether or not there is a special indorsement, the defendant may apply for particulars before declaration, or even before appear ance; as, for instance, if he has been served out of the jurisdiction, which would be irregular, unless the cause of action arose in the jurisdiction; to ascertain which, it is necessary that he should know what the cause of action to be declared on is, and that he should do this without appearing, which would be a waiver of the irregularity. (Forbes v. Smith, 1 Jur., N. S., part 1, pp. 383, 503). The Common-law Procedure Act, 1854, (sect. 125), allows either party, with the leave of a judge, to deliver interrogatories at any time before or after declaration; but if the application is made by the plaintiff, he must not only make an affidavit with his attorney in the terms of sect. 52, but must state the nature of the cause of action, that the Court may judge of the pertinence of the interrogatories. (Croomes v. Morrison, 2 Jur., N. S., part 1, p. 163). It may be assumed that where the defendant applies, he must do his best in the same way to inform the Court. In Martin v. Hemming, (18 Jur., part 1, p. 1002), in which leave to exhibit interrogatories was refused, the application was before plea; and the decision went upon the ground, that special reasons for the application had not been shewn, and that enough was not disclosed of the nature of the action and of the defence to enable the Court to judge as to the necessity for the interrogatories. And

C. P., 182) this was laid down by the Court of Common Pleas. In another case an application was made on the part of the defendant to interrogate the plaintiff either after plea, or, at all events, on affidavits disclosing the nature of the action and defence, the plaintiff residing abroad; and leave was granted. (Pohl v. Young, 1 Jur., N. S., part 1, p. 1139). The application is one on which, whether at chambers or in court, the opposite party can be heard, as it is a rule or summons to shew cause. (Thol v. Leask, Id. 47). And the practice is to look at the interrogatories, to see if they are reasonable and proper. (May v. Hawkins, Id. 600).

In that case an application on the part of the plaintiff in ejectment, on an affidavit disclosing that the action was brought in respect of a forfeiture by breach of covenant, and that there was a good cause of action for the breach of covenant, was refused, because it did not state that there was a good cause of action in the action of ejectment. It was thrown out that it should state a good and meritorious cause of action, but that was obiter; and quære as to the legal meaning of such an expression? In a subsequent case, however, (Croomes v. Morrison, 2 Jur., N. S., part 1, p. 163), Lord Campbell, C. J., said, "It should be stated to be a conscientious action." But in that case the application was before declaration, and the real objection was, that it did not appear what the action was about; and consequently, even with the allegation of merits, the affidavit was held insufficient. In that case the Court of Queen's Bench laid it down that the interrogatories should be looked at by the court or judge, and should be verified by affidavit; and that when the application on the part of the plaintiff was before declaration, the affidavit must not merely be in the terms mentioned in the act, but must give such information as may enable the Court to see if the interrogatories are material. In another case the Court of Exchequer expressly laid it down that they had power to allow interrogatories to be exhibited to either party, at any time. (Flitchcroft v. Fletcher, 2 Jur., N. S., part 1, p. 191). The attorney ought to join in the application; but the objection, that he has not done so, is waived if not taken at the hearing at chambers. (Whateley v. Crawford, Id. 207). That was an application by the plaintiff, and it does not appear whether it was before declaration; the affidavit disclosed what the action was brought for. In another case, the application being after pleading, the Court of Exchequer declined to consider any objection to the interrogatories on the ground of privilege, or in regard to self-crimination, deeming that to be an objection which must be taken by the party himself in answering the interrogatories. “On his refusing to answer in writing, there might be," said Alderson, B., "an application for oral examination, in which examination the question would arise, exactly as in ordinary cases, in the witness-box." (Osborn v. The

London Dock Company, 1 Jur., N. S., part 1, p. 93). This is not at all inconsistent with the opinion of the Court of Queen's Bench, that the interrogatories should be looked at to see if they were relevant; on the contrary, the Court of Exchequer offered to strike out any of them which were pointed out to be irrelevant. The decision went entirely on the question of personal privilege, and in that view it was confirmed by the Court of Common Pleas. (Chester v. Wortley, 17 C. B. 410; 18 C. B. 239; 2 Jur., N. S., part 1, p. 287). In the latter case the Court were of opinion that the answers ought not to be general, but should be directed specifically to each interrogatory.

The most important question, however, is as to the nature or object of the interrogatories to be allowed. It was to this principally that our former article was directed, and upon this several important decisions have since taken place. For instance, it has been settled that where the object is the discovery of documents, the proper course is not exhibition of interrogatories, but a rule or summons for inspection or production.

It may often be necessary for the plaintiff to apply for discovery of some document in the possession of the defendant in order to enable himself to declare; and in such case the application must be at common law, or under the 14 & 15 Vict. c. 99, or under the 50th section of the Common-law Procedure Act, 1854, not under sect. 51. (Herschfeld v. Clark, 2 Jur., N. S., part 1, p. 239).

It has been held, that though interrogatories can be exhibited as to documents in the opposite party's possession, he cannot be interrogated as to their contents, or required to set forth copies in his answers, the procedure for the purpose of compelling production of documents being different from that for interrogatories. (Scott v. Zygomalas, 1 Jur., N. S., part 1, p. 63). It may be added, that neither inspection nor interrogatories will be granted in one action for the purposes of another. (Temperley v. Willett, 2 Jur., N. S., part 1, p. 519).

The most difficult question, however, is as to the nature of the interrogatories admissible. In Flitchcroft v. Fletcher (11 Exch. 549; 2 Jur., N. S., part 1, p. 191) the Court of Exchequer allowed interrogatories to be administered by the defendant in ejectment, as to the "nature of the pedigree on which the plaintiff relied," or rather, as we presume, (since it would not appear from the writ that the plaintiff claimed as heir at all), as to whether he claimed as heir, and if so, how. The Court founded their judgment partly on a case in equity, not reported, and partly on the analogy afforded by the old declaration in real actions, which always set forth how the plaintiff claimed. In a later case, however, (Edwards v. Wakefield, 2 Jur., N. S., part 1, p. 762), the Court of Queen's Bench seemed to doubt this decision, as regarded the nature of the interrogatories allowed. That was an action of trover by assignees, and the interrogatories were as to the acts of bankruptcy to be relied on. The Court refused to allow the interrogatories, and laid it down that interrogatories were not admissible as to the mode in which the plaintiff means to shape his case. It has

always been held that inquiry cannot be made as to the evidence on which the opposite party intends to rely; and perhaps the acts of bankruptcy in this case were rather matter of evidence. The Court, however, appeared to think that an application for particulars would have been the proper course. They objected to examining the plaintiff on oath as to the nature of his own evidence, by which, after all, he would not be bound at the trial; and they appeared to think that interrogatories are allowable only where a bill of discovery will lie.

The Court of Queen's Bench had formerly decided that either party might, by interrogatories, inquire into matters that were common to the case of both parties, though the answers sought might disclose the case relied upon by the party interrogated, but that one party could not interrogate as to matters that related exclusively to the case of his opponent. Lord Campbell, C. J., there said "Interrogatories may be put with reference to any matter as to which discovery may be sought by bill in equity. The rule is laid down rather widely by the Court of Exchequer in Osborn v. The London Dock Company, where it is said that the interrogatories may be administered to the same extent as if the party interrogated was a witness under examination at the trial. I think the true rule is, that such questions may be put as may reasonably be expected to produce answers tending to advance the case of the party who puts them. The rule on this subject has been very clearly laid down by that great jurist, Sir J. Wigram, and I concur in that rule in the very terms in which he has laid it down." The Court also held, that when a case is brought within the statute, the Court is bound to grant an application for leave to exhibit interrogatories. (See Whateley v. Crawford and Carew v. Davis, 2 Jur., N. S., part 1, p. 207).

With regard to the costs of interrogatories and of inspection, it is now decided that they are in the dis cretion of the judge making the orders; and where the orders are silent as to costs, the party on whose application they were made, afterwards becoming entitled to the costs of the cause, has no right to the costs of such proceedings. (Smith v. The Great Western Railway Company, 25 L. J., Q. B., 279).

How JURIES CAME TO LAY THEIR HEADS TOGETHER.I have been assured by an excellent legal friend of mine, that it used to be the custom in one of our northern counties, at the quarter sessions, when the chairman had summed up, for him to conclude his address to the jury with the advice given by Sidney Smith to the Dean and Chapter of St. Paul's, "to lay their heads together," with the view of producing the hardest pavement. I am told, that no sooner were the words uttered from the Bench, "Now, gentlemen, lay your heads together and consider your verdict," than down went every head in the box, and an official approached, armed with a long wand. If any unlucky juror inadvertently raised his head, down came the stick upon his pate, and so they continued till the truth was struck out in their veredictum-an excellent plan for expediting business.-Notes and Queries.