Abbildungen der Seite
PDF
EPUB
[blocks in formation]

Gray, contrà. There appears on the face of the replication sufficient ground for setting aside the judgment: it had been clearly obtained against good faith. In Prentice v. Harrison the replication did not state any ground, and it was held insufficient, because the judgment might have been erroneous and not irregular. That cannot apply here, as the particular ground is fully stated; Rankin v. De Medina (a). Secondly, it was not necessary to state that the Judge's order was made a rule of Court. Under the 11 Geo. 4 & 1 Wm. 4, c. 70, and 1 & 2 Vict. c. 45, a Judge at Chambers has a common jurisdiction over matters pending in any of the Courts. The order when made, was equally valid and effectual, as if made by the Court. If it were not so, a party might be detained in prison during the whole period of Vacation. Thirdly, the objection that the plaintiff ought to have replied nul tiel record, is only ground of special demurrer, and is not pointed out. However, it is sufficient to shew that the judgment was set aside. (Alderson, B.If the judgment were set aside by consent, on the terms of no action being brought, that would not appear on the issue of nul tiel record. Pollock, C. B.—There are certainly cases in which the real question could not be tried on nul tiel record.]

PER CURIAM.—There must be judgment for the plaintiff (6).

(a) i C. B. 183; S. C. ante, vol. 2, p. 813.
(6) Decided in Hilary Term.

1846.

Rawstone and Others o. GANDELL and Another.

ha

In an action CROMPTON moved for a rule to shew cause why a by the pro

plea of release, pleaded puis darrein continuance, should not visional committee of a

be set aside. The plaintiffs were the provisional committee railway company, the of a joint stock company, called “ The Liverpool, Preston, Court will not set aside and North Union Junction Railway, with Extension to a plea of release puis

Blackburn, and Branches to Southport and Wigan,” which darrein con had been registered under the 7 & 8 Vict. c. 110, and the tinuance by one of the action was brought against the defendants, who were plaintiffs, if the releasor engineers, for a breach of contract in not surveying the

test line, and furnishing sections and plans, in time to deposit in the concern, however small; the same with the clerk of the peace for the county of unless a clear case of fraud Lancaster, and at the office of the railway department be made out.

of the Board of Trade, on the 30th of November, 1845, as required by the Standing Orders of Parliament. The writ was sued out in January, 1846, and, issue having been joined, the cause was entered for trial at the Spring Assizes for Liverpool on the 21st of March. On the evening of the 20th of March, the defendants' attorney delivered a plea, puis darrein continuance, of a joint release which had been executed the day before, by James Duncan and Cornelius Randall, two of the plaintiffs. It is submitted, that this release was given in fraud of the other plaintiffs, as appears from the facts disclosed by the affidavits: That the failure in depositing the sections and plans on the 30th of November having taken place, a meeting of the shareholders was called on the 21st of January, at which it was resolved, that the present proceedings should be instituted against the defendants, and that the resolution was communicated to all the original shareholders, and also to the releasors; it was then further resolved, that all persons holding shares, who were desirous of giving them up, should receive one guinea on account of the deposit on each share: that Duncan, one of the parties to the release, never took any

RAWSTONE

v.

and Another.

active part in the management of the company, and had 1846. been nominated on the provisional committee through the influence and instrumentality of the defendants, with whom and Others he was on terins of intimate friendship: that two hundred GANDELL shares were allotted to him, on which he paid a deposit; “ and of these one hundred and fifty had been presented for the return of the guinea: that shortly after the commencement of this suit, Duncan and another of the plaintiffs, together with two other persons, filed a bill in Chancery against all the rest of the plaintiffs, in order to have the accounts of the company taken under the authority of the Court, and to restrain the present action at law. The bill was filed by Messrs. Westmacott, the defendants' attorneys, who also commenced a cross-action against the company for the recovery of an alleged claim of the defendants: that Randall, the other party to the release, had, with some of the other plaintiffs, been appointed on the executive committee, which was selected from the provisional committee; but had never taken any active part in the management of the company: that, in pursuance of the abovementioned resolution, Randall had received back one guinea for every share which had been allotted to him; and in February, 1846, executed a deed by which, in consideration of that repayment, he did release and for ever quit claim unto the provisional committee of the company all and all manner of actions, suits, reckonings, claims, and demands, both at law and in equity, which he could, should, or might have against the said committee, by reason or on account of the said projected undertaking, or any transaction, matter, or thing, in anywise relating to the same, but subject to a rateable participation in any surplus fund.' Under these circumstances there is a sufficient case to induce the Court to interfere. The question is of great importance, for if this plea be allowed, any one member of the provisional committee of a railway company will have it in his power at any time to extinguish the rights of the

1846.

RAWSTONE and Others

GANDELL and Another.

shareholders by executing a release. [Parke, B.-We cannot interfere to prevent the defendants from pleading the release, unless you make out a clear case of fraud. If you can shew that the parties executing the release had no interest whatever in the concern, but were mere trustees for the other plaintiffs, it would do; but however few the shares which they hold in the company, so long as they have some interest, they may execute a release.] In the case of Phillips v. Claggett (a), Parke, B., says, “ Perhaps it may not be correct to say (and in that I agree with the Solicitor General), that in all cases in which a party has an interest he may release—that is not perhaps correct—it is correct to say, that if he has parted with all interest, in that case he cannot release.” [Pollock, C. B.-What my brother Parke meant appears from the next passage, “ One of the cases cited by the Solicitor General was a case where the partner agreed with his co-partner that the latter should receive all the debts due to the co-partnership, and pay the debts of the co-partnership: in such a case he has disposed of his right to release the debts, although he has an interest in the ultimate surplus. I quite agree that where a person, under such circumstances, executes a release to a party cognizant of the situation in which he stands, that is a case in which a Court of equity would interfere, and it is a case in which this Court, in the exercise of its equitable jurisdiction, would interfere to prevent the defendant from pleading the release."] The facts shew a case of fraud, and that the release was merely colourable. Duncan has parted with all his interest except a small portion, which he evidently retains for the purpose of assisting the defendants. Randall has parted with all his interest, and as the release is pleaded as the joint act of the two, the fraud of one vitiates the whole. [Pollock, C. B.-You must not confound fraud with im

[ocr errors]

RAWSTONE

and Another.

propriety of conduct. It may be a very wrong thing to 1846. execute a release under circumstances like the presentit may be an act which an honest man would not do, and Others and one for which he may be responsible to another tri- GANDELL bunal; but if there be the smallest scintilla of right or real and interest upon which the release may operate in law, we cannot interfere. Parke, B.—You are bound to shew that the release was a fraud on the other plaintiffs; that has not been done, and your remedy is by bill in equity against Duncan.]

Rolfe, B., and PLATT, B., concurred.

Rule refused.

The ATTORNEY GENERAL v. Hallett. THE ATTORNEY GENERAL moved on behalf of An action of the Crown, for a rule absolute, to remove into the Office of the Pleas of this Court, an action of Hallett v. Vigne, which having been had been commenced in the Court of Common Pleas. the Court of

Common No affidavit was produced, but the Attorney General in- Pleas, the formed the Court, that an information for intrusion had

ad pleaded that been filed against Hallett for an encroachment upon the locus in

quo was part Waltham Forest, and that the case of Hallett v. Vigne was of a forest

belonging to an action for trespasses, alleged to have been committed by the Crown

ans and that he, Vigne in abating that encroachment. The declaration was a

was as servant of in the ordinary form of trespass quare clausum fregit, and the Crown,

committed the defendant pleaded (amongst other pleas), first, that the the alleged Chief Justice in Eyre granted to the defendant a license to replication

trespass. The hunt, &c. in the Forest of Waltham; that the locus in quo put in issue was within the forest, and that certain fences set up by the the Crown :

Held, that plaintiff interfered with the defendant's right; wherefore after notice to

od the fonono. the defendant entered and removed the fences. The

The the plaintiff,

might be removed into this Court by rule absolute in the first instance, upon the mere statement of the Attorney General (without affidavit) that the interest of the Crown came in question. In such a case two days' notice of the motion is sufficient.

se

« ZurückWeiter »