Mountcashell v. Barber.

society for its repayment, and the money is borrowed and placed to the account of the committee, and one of the committee draws checks upon the bank in which the money is, and otherwise so conducts himself as to show his knowledge of the whole transaction, he is liable to an action for contribution by another member of the committee from whom the lender has received the whole sum.

THIS was an action of debt for money paid for the use of the defendant, and for money due on an account stated.

Pleas. 1. Never indebted. 2. Payment. 3. A set-off.

The case was tried at Guildhall, before Jervis, C. J., when a verdict was taken for the plaintiff for 967. 3s. subject to the opinion of the court on the following case.

The plaintiff and defendant were members of the committee of management of the Colonial Club, consisting of many members who paid annual subscriptions. The society had no deed; but there were rules for its government, one of which was, that there should be selected from the members at large thirty-six persons, to be called the committee of management.

The plaintiff became a member of the committee before the defendant, who became one on the 2d December, 1841, and both continued members until July, 1843, when the club broke up. In March, 1842, the club was about 3,000l. in debt. On the 16th of that month there was an ordinary meeting of the committee, of which the defendant was chairman, and at which a Mr. Morson gave a notice of motion for the Wednesday following "to call the attention of the committee to (inter alia) the financial difficulties of the society." The defendant attended the next meetings, having been shortly before elected a member of the house-committee and wine-committee, which gave orders for wine and other supplies. On the 28th April the defendant attended a meeting, at which it was resolved "that the removal of the Colonial Society to a more commodious house having rendered expedient an immediate loan to the society of 3,000l., the members of the society be invited to pledge themselves to the managing committee that, in consideration of the committee rendering itself liable to this loan, they will severally, but not jointly, guarantee to advance to the committee, eleven months from this date, the sums to which their names are affixed; that such subscription shall be regarded as loans to the society, for which the subscribers shall receive society debentures, and such subscriptions shall be called for only in case of there not being at the disposal of the committee sufficient funds of the society to repay the above-named loans; and such debentures shall be for 101. each and carry five per cent. interest, to be deducted from the annual subscriptions, (with other provisions as to the debentures.)

At subsequent meetings the defendant also attended, and took part and examined the accounts.

On the 1st of June, 1842, the defendant attended a general meeting of the society, at which it was resolved "that a loan of 4,000l. is necessary to free the society from outstanding liabilities, and place the establishment of the society on a suitable footing in their new house; and that the committee be empowered to raise the sum on

Mountcashell v. Barber.

the guarantee of the society in the manner most advantageous to the society; and that the meeting further pledges itself to meet heartily the views of the committee in subscribing to the proposed debentures." The defendant attended a meeting of the committee and also a general meeting of the society on the 15th June, 1842, at which the above resolution was discussed and again passed. The plaintiff and defendant attended a meeting of the committee on the 27th July, 1842, at which Captain Macdonald and themselves signed a check on the London Joint-Stock Bank for 15l. servants' wages.

There was a meeting of the committee on the 3d August, 1842, at which the defendant was not present.

At the trial of the cause evidence was given of what took place at that meeting, (subject to the opinion of the court as to its admissi bility,) to the effect that, the secretary having reported that he had been requested by Mr. Hopkinson to state that the sum of 4,0002. would be placed to the credit of the society at the Commercial Bank of London, on the manager receiving a letter containing a request to that effect, and containing a copy of the resolution of the committee authorizing the loan, the following resolution was adopted and ordered to be acted upon immediately: "In conformity with the resolution passed at the general meeting on the 15th July, 1842, resolved that the sum of 4,000l. be borrowed at 5l. per cent. from the Commercial Bank in the name of this society, and that this sum be immediately placed to the credit of the committee; and that the account of the society be transferred to the Commercial Bank." The society had before banked with the London Joint-Stock Bank, and had at that time a balance there, which was transferred to the Commercial Bank on the 1st September, 1842.

There was also given in evidence, (subject to the same objection,) a resolution by the same meeting, "That the following checks, having been referred from the house-committee, were ordered to be made out for signature immediately on the intended loan for paying off the society's liabilities being obtained. Howell, rent and dilapidations, 630/. Violet for wine, 1397."

The next day the secretary sent a letter, (also admitted subject to the same objection,) purporting to be by the direction of the committee, to the Commercial Bank, informing them of the resolution of the day before, and also stating that the signatures of the members of the committee, by three of whom, as well as the secretary, all their checks were signed, would be forwarded to them in a few days, and also a check for the society's balance at the London Joint-Stock Bank. An account was accordingly opened; and at a meeting of the committee on the 12th August, 1842, upon the secretary stating that the Commercial Bank wanted the signatures of the members, that they might recognize them when checks were drawn, the defendant and three other members then present gave their signatures for that purpose, and subsequently the plaintiff and four others did the same; and checks were signed by the defendant and two others for the expenses of the club. An action was afterwards brought by the Commercial Bank against the plaintiff for the

Mountcashell v. Barber.

4,000l., and a Judge's order was made for payment of that sum by him. The defendant and some other members contributed 1007. each towards paying this and other debts of the society, and the plaintiff received in the whole 2,500.

It was to be taken, for the purpose of assessing the amount payable by the defendant, that there were twenty-six members of the committee of management of the society, including the plaintiff and the defendant. The court were to draw any inference which a jury might draw, and the questions for the opinion of the court were,— 1. Was the evidence to which objection was taken, or any part of it admissible?

2. Upon the whole of the case, was the defendant liable to pay any thing to the plaintiff for contribution as a co-contractor; and if so, whether any and what sum of money was due from the defendant to the plaintiff, taking into consideration the payments made by the defendant?

The verdict for the plaintiff was to stand, or be altered, or a verdict was to be entered for the defendant, according as the court should think right.

Lush, for the plaintiff. The effect of the resolutions, together with the conduct of the defendant, who took an active part in the matter, and with others drew checks upon the Commercial Bank, after the money had been placed to the account of the committee, is to make him liable.

Bramwell, Q. C., for the defendant. The resolution of the 1st of June gave no more authority to individual members to pledge each other's credit than they had before.

[MAULE, J. It shows that, it being necessary that the committee should be authorized to borrow jointly on the responsibility of each, that agreement was come to without which they could not have done it. Suppose twelve people say to a thirteenth, we are going to borrow money, and the thirteenth borrows it from the fourteenth, and the twelve treat it as money borrowed by themselves, that would be evidence to show that they authorized the borrowing of it.]

The resolutions only contemplate a loan, which was not to be entered into until they got a guarantee from the society. The defendant might have objected to the guarantee, and would not then have been bound, unless it were shown that they all afterwards ratified the borrowing.

JERVIS, C. J. There is really only one question in this case. The question of the admissibility of the evidence and of liability is the I think there is evidence before the loan to make the defendant liable; but, if not before the loan, there is abundant evidence of his having ratified.

same.

MAULE, J. This is a very clear case. The person most active and cognizant of the whole transaction was the defendant, and it would

Solomon v. Todd.

have been more easy for the Commercial Bank to have sued him than any one else.

WILLIAMS, J., and TALFOURD, J., concurred.

SOLOMON V. TODD.'

November 25, 1853.

Setting aside a Verdict.

Where it is clear that one side or the other has committed perjury, the court will not disturb the finding of the jury.

THIS was an action for goods sold and delivered, tried before Cresswell, J. The plaintiff was a merchant in the minories; the defendant a part owner of a vessel. The action was brought to recover the balance of an account originally amounting to 627. 11s., of which 271. 1s. had been paid. On the part of the plaintiff it was proved that the invoice of the goods in question was made out in the names of the captain and owners; that it was shown to the defendant, who went out in the vessel to Rio; that he examined the goods, and that the 277. 1s. received in part payment was the defendant's money. The case for the defendant was, that the goods had been purchased by the captain, who had died on the voyage, and that the owners had nothing to do with them; that the money paid had been lent by the defendant to the captain; that after the captain's death the defendant, out of kindness to the plaintiff, told the agent at Rio that he had better try to dispose of the goods. The jury found a verdict for the defendant.

Byles, Sergt., now moved for a rule calling upon the defendant to show cause why the verdict should not be set aside, as being against evidence.

CRESSWELL, J. I think it quite clear that one side or the other committed perjury, and the jury found for the defendant. If a new trial were granted, you would have the same witnesses again. In such a case the court will not disturb the finding of the jury.

Rule refused.

1 23 Law Times Reports, 135.

Lewis v. Collard.

LEWIS v. COLLARD.1

November 25, 1853.

Attorney - Negligence.

A trader petitioned the Court of Bankruptcy, under the 211th section of 12 & 13 Vict. c. 106; and an order for the official assignee to take possession of his estate, was made under the 213th section. An attorney, having notice of these proceedings, upon an assurance from the defendant, a creditor, that all the creditors of the bankrupt would concur, and being instructed by him, drew a deed of settlement :

Held, that as such deed might have been operative if all the creditors had concurred, the attorney was right in drawing the deed.

THIS was an action brought by the plaintiff an attorney, to recover the costs of preparing a deed of settlement of the estate of one Spratt. At the time of the deed being drawn, Spratt had petitioned the Court of Bankruptcy under the 211th section; an official assignee had been appointed; and an order had been made under the 213th section, directing that the estate should be possessed and received by him. The plaintiff, having had notice of these proceedings, was applied to by the defendant to draw the deed of settlement, and was told by him that he had no doubt all the creditors would consent. The jury found a verdict for the plaintiff.

James, Q. C., now moved, upon leave reserved, for a rule to enter the verdict for the defendant, if there was any evidence to go to the jury of gross ignorance on the part of the plaintiff. The estate vested on the petition of Spratt, (which is an act of bankruptcy,) and the order, under which the estate was "possessed and received by the official assignee;" and after that, Spratt had no power to execute a deed of settlement.

[CRESSWELL, J. No adjudication had been filed, and, if all the creditors had consented, none could.]

He ought not to have prepared the deed until he was satisfied all the creditors would concur.

[CRESSWELL, J. But he was told by the defendant all would concur. And Mr. Collard said the reason of their not concurring was, that, at the meeting of the creditors called to consider the matter, some of them were much wiser than the plaintiff, and the deed would be of no avail.

MAULE, J. But even if the estate had vested, the Court of Bankruptcy would scarcely interfere, if all the creditors, or, supposing only one creditor, if that one, had agreed to the settlement.]

The attorney was not justified in preparing the deed until he had

ascertained that.

1

1 23 Law J. Rep. (N. s.) C. P. 32; 21 Law Times Rep. 135.