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Of course to prove that Mr. Senior is not persecuted does not show that he may not be ill used. Still it goes a good way to free people's minds from a subtle confusion of ideas. Those who think Mr. Senior a martyr argue, in effect, that a man ought never to be punished for conduct which is dictated by good motives, and that, as Mr. Senior believed that in not sending for a doctor he was obeying the precepts of the Bible, it is unjust to send him to prison. No man, to put this view in its popular form, ought to be punished for obeying his conscience. Let us see for a moment what are the results to which this dogma leads. A Jesuit who kidnaps a Protestant child in order to carry him abroad and educate him in the true faith, a robber who steals money from the rich because he wishes to give it to the poor, a doctor whose eccentric benevolence leads him to poison persons desperately sick in order to free them from pain, a fanatic who assassinates a President or a Tsar in order to avenge the wrongs inflicted by society upon the suffering masses of the people, may each and all of them act from exalted motives. The Thugs committed wholesale murder from purely religious motives, and believed that they were conferring spiritual benefit on their victims. Yet common sense assures us that each and all of these enthusiasts ought to be severely punished. The simple truth is that any argument meant to prove that it is in itself wrong to inflict penalties on a member of the Peculiar People for obeying his conscience must always lead to the conclusion that no man must be punished for doing what he thinks right. But this plea is necessarily an apology for some of the worst actions recorded by history, besides being inconsistent with any law being enforced at all.
The 'one man company' is a sub-variety of the private company. Its distinguishing peculiarity—what has earned it its opprobrious nickname—is that it is or may be a device for defeating the creditors of the trader or of the company which is his incorporated counterpart. In Salomon v. Salomon & Co. there was no pretence for saying that the trader was insolvent at the time he transferred his business and assets to the company: but in In re Hirth, '99, 1 Q. B. 612, 68 L. J.Q. B. 287, C. A. this new element of insolvency was introduced into the situation, and it presented a piquant plat for the legal epicure. At first sight there was something taking in the view of Wright J., that though the trader's trustee in bankruptcy could prima facie claim to have the sale set aside, he could not do so after the rights of creditors of the company
had intervened on a winding-up. Undeniably there are cases where the liquidator as representing creditors has been held to have
higher rights both of offence and defence than the company itself would have had : for instance, the liquidator may resist specific performance of a contract, though the company itself could not; but it is a very different thing to say that the liquidator, because he represents creditors, can make good a title which the legislature has declared defeasible. Given that the sale of the business to the company in In re Hirth & Co. was, as undoubtedly it was, a fraudulent assignment, it was then an act of bankruptcy, and being followed by an adjudication within three months the trustee's title related back to it, and divested the property from the company unless the transaction was a protected transaction within the Act, which there was no pretence for saying that it was. The doctrine of relation back may seem sometimes barsh, but it is founded on public policy, and the very object of such public policy is to strike at transactions like these-mala fide dispositions of property on the eve of bankruptcy in fraud of creditors.
How far is the person who makes a gratuitous loan of a chattel liable for damage caused to the borrower by some defect in the thing lent? This question is neatly raised in Coughlin v.
Gillison, '99, 1 Q. B. 145, 68 L. J. Q. B. 147, C. A., and the answer given is in accordance with the best authorities, and with good sense. A person who, as a favour, lends a chattel to a friend, ought to communicate to the borrower any defects with reference to the use thereof of which the lender has knowledge, and if he omits to do so, he is liable for injury to the borrower resulting from these defects; but the lender's liability is strictly limited by his knowledge. A man who lends a horse or a carriage to a friend in no sense guarantees that the one or the other are free from defects.
A tradesman who advertises that his own goods are better than those of his neighbour and rival does nothing which is actionable even with special damage. This is the effect of Hubbuck f. Sons v. Wilkinson, Heywood S. Clark, '99, 1 Q. B. 86, 68 L. J. Q.B. 34, C. A. It is strange that a very competent judge should have supposed that such a puffing of a man's own goods as we have described could expose the puffer to an action.
A, the lessee of premises, assigned the term to B, who mortgaged the premises by a sub-lease to X. X entered into possession, and did not, whilst in possession, pay the rent due to the original landlord N. A was compelled to pay it. Bonner v. Tottenham, 8c. Building Society, '99, 1 Q. B. 161, 68 L. J. Q.B. 114, C. A. decides that under these circumstances A could not maintain an action against X for money paid, and that Moule v. Garrett, L. R. 5 Ex. 132, L. R. 7 Ex. 101, did not apply. The distinction appears to be that in order that A, a lessee, may recover from an assignee, X, rent which A is compelled to pay to the original landlord N, A and X must each be legally compellable to pay rent to N. In Bonner v. Tottenham, foc. Builling Society, the sub-lessee, X, was under no obligation whatever to the original lạndlord.
Norton v. Darison, '99, 1 Q. B. 401, 68 L. J. Q. B. 265, C. A. follows Walker v. Nussey (1847) 16 M. & W. 302, and decides that when upon an oral contract for the supply of goods it was a part of the contract that a sum of money which had been overpaid to the seller upon a previous sale of goods by him to the purchaser should be retained by the seller on account of the price of the goods contracted to be supplied, there was not a part payment which would satisfy the Sale of Goods Act, 1893, s. 4, sub-s. 1.
This decision may seem technical, but it is grounded on good sense. The statute allows 'payment'--the manifest act of payment—as one of the modes of proof that a contract above the specified value has been made ; but the transaction which we have stated was not an act of payment at all, and was not such an act independent of the contract as to afford evidence anything like equivalent to a memorandum in writing. Indeed there was and could be no retainer, only an agreement for future retainer, before there was actual payment of the residue and acceptance of that payment as a discharge of the whole price. But though the judgment of the Court in Norton v. Davison is sound, the case and others like it provokes an inquiry often raised in these notes whether the archaic provisions of the Statute of Frauds, s. 17, had not better have been repealed rather than re-enacted by the Sale of Goods Act.
Shipway v. Broail wood, '99, 1 Q. B. 369, 68 L.J.Q. B. 360, C. A. may remind laymen of the often forgotten fact that in matters of trade the morality of the law is higher than the prevailing commercial morality of the day. The Courts unswervingly enforce the principle that no man shall be allowed to have an interest against his duty. A sells horses to X, who purchases them subject to the condition that their soundness shall be certified by N, a veterinary surgeon. To make sure of the sale A bribes N to give a favourable certificate. On this fact coming out the Queen's Bench Division hold that A cannot enforce the contract, and that it was immaterial to inquire whether the bribe did or did not affect N's judgment. The fairness of this decision is obvious. Yet it may be doubted whether the principle on which it is founded governs the common practices of tradesmen.
I undertakes to supply coals to A, who relying upon the contract with X undertakes to deliver part of these goods to N. X in breach of his contract fails to deliver the goods to A. A therefore cannot perform his contract with N, who brings an action against A, claiming £150 damages. X when communicated with repudiates all liability, and refuses to take up the defence. A defends the action but pays £20 into Court, and proves that £20 is enough to satisfy N's claim. A thereupon brings an action against X, and
N’s claims as damages the costs of defending the action against N. It has been held by the Court of Appeal that A is entitled to be compensated for the cost of the defence. This is the result of Agius v. Great Western Colliery Company, '99, I Q.B. 413, 68 L.J.Q. B. 312,
, C. A., which follows Hammond f. Co. v. Bussey (1887) 20 Q. B. D. 79. It appears to be a fair and reasonable deduction from the rule laid down in Hadley v. Baxendale (1854) 9 Ex. 341; but it is impossible not to be struck with the fact that the rule as to damages laid down in that leading case raises more difficulties than it solves. The truth is that the celebrated rule is in substance sound, but that in the leading case it is badly expressed, and has needed a good number of explanatory glosses in order to make it workable. Is not the time come when the fundamental principle governing the assessment of damages might be judicially expressed in more accurate and clearer terms ?
A fundamental principle of English law is that, subject to certain definite and statutable exceptions, 'crime is local, and the only acts that are triable in England as crimes are acts done in England and criminal by the law of England.
This being the rule of law it is often difficult, not to say impossible, to punish here offences committed in a foreign country, even though that 'foreign 'country be part of the British Empire, or even part of the United Kingdom. X, who carries on business in the county of Durham, obtains goods there from a traveller of A's who carries on business in Glasgow, and obtains them by means of false representations made in Glasgow by X to A.
These are the facts briefly stated of R. v. Ellis, '99, 1 Q. B. 230, 68 L.J.Q. B. 103. X is put on trial at the Assizes in the county of Durham. The question is raised whether X has committed any offence in England, and whether therefore he is triable in the county of Durham. The Court for Crown Cases Reserved has held that X has under the Debtors Act, 1869, obtained goods under false pretences in England, and is therefore subject to the jurisdiction of the English Courts.
From a merely practical point of view this decision is satisfactory. A cheat has defrauded an English tradesman, and he is not allowed to escape punishment by means of a defence which to most laymen sounds little better than a technical quibble. Yet if it be desirable that a rule of law, while it exists, should be respected and not be nullified by unreal refinements, the judgment of the Court in R. v. Ellis is open to grave criticism.
The only question which the Court was called upon to decide was whether I had, or had not, committed in England the specific offence of obtaining goods under false pretences. As a matter of common sense the answer would seem to be obvious. X committed part, but certainly not the whole, of the offence in England. But this answer, which involved X's escape from punishment, was exactly the reply which the judges were unwilling to give, and the members of the Court for Crown Cases Reserved escaped from the difficulty in which they were placed by adopting one of two inconsistent logical devices.
The majority of the Court held that X committed an offence by 'obtaining the goods, and that this offence was committed in England. This is apparently the view of the Lord Chief Justice, Wills J. and Hawkins J., and perhaps, though this is not quite clear, of Bruce J. But, with the highest respect for these eminent judges, their way of looking at the matter is on the face of it wrong. To obtain goods is not per se a crime. If it is a crime, it is a crime committed every day by every judge of the High Court; if moreover proof be wanted that the obtaining of goods is an innocent act, it is afforded by the fact that an indictment against X simply for 'obtaining goods in the county of Durham'would be bad upon the face of it. No subtlety can conceal from any accurate thinker that the false pretences are of the essence of the crime charged against X, and these false pretences were, on the view held by the majority of the Court, made not in England, but in a foreign country, viz. Scotland. The offence charged, in other words, was not committed, and therefore was not triable, in the county of Durham.
Mr. Justice Wright, with characteristic acuteness, arrives at the same practical result as his colleagues, but by a totally different and very ingenious process of reasoning. The representation made in Glasgow may, he conceives, be looked upon as continuing in England, and therefore the goods may be treated as obtained under false pretences made in England. If the judgment of the Court is sound it must, we conceive, be defended either on the ground of precedents themselves open to some question, or on the ground put forward by Mr. Justice Wright. But his lordship’s view, though ingenious, is too subtle. The pretences made at Glasgow produced