Volume IX. 1847. Defendant was, by his consent, a member of the provisional committee of a projected COOKE against Sir WARWICK HELE TONKIN. EBT. The first count charged that the defendant DEBT. was indebted to the plaintiff in 50l. for the inserting, printing and publishing of divers advertisements in newspapers by plaintiff for defendant, at his reprospectus, the quest. There was also a count on an account stated. Plea: Nunquam indebitatus. company. Ac cording to the affairs were to be under the controul of a managing commitee. A managing committee was appointed; and then the provisional committee The particulars of demand were as follows: Nov. 1. To advertising prospectus of The £ s. d. and Uxbridge Junction Railway 4 0 0 ceased to act. After this, the solicitor to the Company, who had been appointed by the provisional committee, gave orders for the publication of advertisements. In an action against defendant for the expense of inserting these, it was proved that he had twice attended meetings of the provisional committee, but that he was not on the managing committee, nor a shareholder. Held, that The case was tried before the Undersheriff of Middlesex, 23d July 1846. It appeared that the plaintiff was the proprietor of a newspaper called The Oxford Chronicle, in which the advertisements had been inserted. They were inserted in consequence of an order given by an attorney named Gell. A company, for forming "The Oxford, Thame, High Wycombe and these facts constituted no evidence for a jury of the defendant having authorised the insertion of the advertisements, nor of his liability. 1847. COOKE V. TONKIN. Uxbridge Junction Railway," had been projected in Queen's Bench. August or September 1845; to which Company the advertisements related. Evidence was given to shew that the defendant, early in October, had consented to be a member of the provisional committee, and a prospectus was issued in which his name appeared as a member of such committee. The prospectus stated that, "until the act shall be obtained, the affairs will be under the controul of a committee of management." Mr. Gell was appointed solicitor to the Company, by the provisional committee. The defendant attended twice, in the early part of October, as a member of the provisional committee: but on the 10th of October a committee of management was formed; after which the provisional committee never acted. The defendant was not on the committee of management; nor was he a shareholder. His name appeared in the advertisements for which the action was brought, as a member of the provisional committee. No list of a managing committee appeared in these advertisements. The counsel for the defendant thereupon contended that there must be a nonsuit, for want of proof of authority from the defendant. The Undersheriff refused to nonsuit, and left it to the jury to say whether the defendant had authorised the act of Gell. Verdict for plaintiff. In Michaelmas term, 1846, Phinn obtained a rule nisi for a new trial, on the ground of misdirection. In this term (a), Maynard shewed cause. It will be attempted, on the other side, to throw the liability either on Gell, the attorney who gave the actual order, or on the managing (a) January 11th. Before Lord Denman C. J., Patteson, Coleridge and Wightman Js. Volume IX. 1847. COOKE V. TONKIN. committee. Now, Gell acted as agent: and, primâ facie, where an attorney acts as agent he is not personally liable; Robins v. Bridge (a), Hartop v. Juckes (b): though this may of course be met by evidence of usage, as in Scrace v. Whittington (c). The question must, at the least, be for the jury. In Reynell v. Lewis (d) and Wyld v. Hopkins (d) it was held that a party did not, by merely allowing his name to be published as a provisional committee man, become liable for work done or goods supplied on the order of the company's solicitor: but that, if he acted, it was a question for the jury whether he gave authority to pledge his credit. But, where a provisional committee man has attended meetings, and acted, he is liable; Barnett v. Lambert (e). Here the defendant did attend meetings. Some stress may be laid on the fact that the prospectus states that the affairs will be under controul of the committee of management, of which the defendant was not in fact a member. But that committee had clearly power to act for all, and to pledge the credit of the members of the provisional committee. Bell v. Francis (g) shews that a party who is not a director may be liable for work done by order of the directors, if he interfere in the management and that rule was admitted by the Court of Exchequer in Pitchford v. Davis (h). The question is, not to whom the credit is given, but with whom the contract is made; Low v. Wilson (i). The plaintiff (a) 3 M. & W. 114. (b) 2 M. & S. 438. (c) 2 B. & C. 11. See Maybery v. Mansfield, antè, p. 754. (d) 15 M. & W. 517. (g) 9 C. & P. 66. 523. (e) 15 M. & W. 489. (h) 5 M. & W. 2. (i) Sittings in Trinity term 1846, coram Parke B.; cited 15 M. & W. Reference was also made to a case of Banks v. Good, in which Pollock C. B. had, at Nisi Prius, recognised Low v. Wilson, and`ruled in conformity with it. 1847. COOKE V. TONKIN. here must have acted for the provisional committee: Queen's Bench. there is no evidence that he had notice of the appointment of any other managers of the undertaking. In the prospectus issued the names of the managing committee did not appear. The principle, that a party, by acting in the management, or even impliedly sanctioning the acts of those who do manage, is liable, in default of some act of renunciation, for contracts made on behalf of the undertaking, appears from Doubleday v. Muskett (a), Burls v. Smith (b), Glenester v. Hunter (c), Steigenberger v. Carr (d) and Lake v. The Duke of Argyll (e). It will be argued, on the other side, that there is no recognised legal meaning in the title of "provisional committee," and that it does not appear in stat. 7 & 8 Vict. c. 110.: but it does appear in schedule (C.), where it must mean those who have the temporary management. Phinn, contrà. This is a question of fact, which the jury can decide only according to the rules of law. The business done was not such as an attorney, in the ordinary course of his duty, could be authorized to order for his employer: the plaintiff was therefore bound to shew that the defendant had in some way authorized the contract. In Story on Agency, 81, ch. vi. § 106., it is said: "By far the largest portion of incidental powers is deduced from the particular business, employment, or character of the agents themselves. Whatever acts are usually done by such classes of agents; whatever rights are usually exercised by them; and whatever duties are (a) 7 Bing. 110. (c) 5 C. & P. 62. (e) 6 Q. B. 477. VOL. IX. N. S. 30 (b) 7 Bing. 705. Volume IX. 1847. COOKE V. TONKIN. usually attached to them; all such acts, rights, and duties are deemed to be incidents of the authority confided to them in their particular business, employment, or character. These, indeed, are in some cases so well known and so well defined in the common negotiations of commerce, and by the frequent recognitions of courts of justice, as to become matters of legal intendment and inference, and not to be open for inquiry or controversy. In other cases, indeed, they may be fairly open, as matters of fact, to be established by suitable proofs." Therefore, if a party professes, as solicitor, to pledge the credit of his client in a case where, merely as solicitor, he has no authority to give the pledge, he is personally liable; Burrell v. Jones (a). The question no doubt is, as put on the other side, with whom is the contract made? That is the rule laid down in Todd v. Emly (b). But here nothing appears to make the defendant a contractor. At the utmost, he is merely a general patron of the undertaking, a character pointed at in stat. 7 & 8 Vict. c. 110. s. 65.; in which statute, the interpretation clause, sect. 3, describes directors and promoters as parties conducting or acting. There may possibly be a difficulty in reconciling all the decisions. Many are collected in the earlier case of Fox v. Clifton (c). In the later case of Fox v. Clifton (d) Tindal C. J. pointed out that the question of partnership, though abstractedly one of fact, must be decided under the direction of the judge, where it depends on the legal result of documents, (a) 3 B. & Ald. 47. See Harper v. Williams, 4 Q. B. 219.; Jones v. Downman, 4 Q. B. 235, note (a); Downman v. Williams, 7 Q. B. 103. (b) 8 M. & W. 505. See Same v. Same, 7 M. & W. 427., 9 M. & W. 606., 11 M. & W. 1. And see Todd v. Stewart, antè, p. 759. (c) 6 Bing. 776. (d) 9 Bing. 115. 117, 8. |