Page images
PDF
EPUB

that the verdict is against the evidence: and the costs will abide the Rule absolute accordingly.

event.

*190]

Mellor, for the defendants, applied for leave to appeal, *under the 35th section of the Common Law Procedure Act, 1854,-17 & 18 Vict. c. 125, which enacts, that, in all cases of motions for a new trial upon the ground that the judge has not ruled according to law, if the rule to show cause be refused, or if granted be then discharged or made absolute, the party decided against may appeal, provided any one of the judges dissent from the rule being refused, or, when granted, being discharged or made absolute, as the case may be, or provided the court in its discretion think fit that an appeal should be allowed: provided, that, where the application for a new trial is upon a matter of discretion only, as, on the ground that the verdict was against the weight of evidence, or otherwise, no such appeal shall be allowed." [JERVIS, C. J.-The 35th section is not retrospective: its language shows that it could only have been intended to apply to cases where the trial has taken place since the passing of the act. In Hughes v. Lumley, 19 Jurist, 60, the court of error decided that the 32d section, which provides that error may be brought upon a special case, unless the parties agree to the contrary, is not retrospective.] The 44th section, which enacts, that, "when a new trial is granted, on the ground that the verdict was against evidence, the costs of the first trial shall abide the event, unless the court shall otherwise order," is assumed in this very case to be retrospective in its operation. The 34th section provides that, in all cases of rules to enter a verdict or nonsuit upon a point reserved at the trial, if the rule to show cause be refused, or granted and then discharged or made absolute, the party decided against may appeal." If the learned judge had ruled against the defendants at the trial, instead of reserving the point, as he intimated he should in the event of the jury finding for the plaintiff, the defendants would clearly have been entitled to appeal. [MAULE, J.—It is hard to say that a man shall be bound by a state of the law of which he had no no*191]. tice at the time to which it is sought to make it applicable.] That may be an answer to the application so far as regards the 34th section. But it is submitted, that the fact of the Court having taken time. for deliberation, shows that this is a case for the exercise of its discretion under s. 35.

JERVIS, C. J.-We agreed with the ruling of the judge: but we think the jury have not arrived at a right conclusion. The last words of the 35th section," provided, that, when the application for a new trial is upon a matter of discretion only, as, on the ground that the verdict was against the weight of evidence, or otherwise, no such appeal shall be allowed," are against you.

The rest of the Court concurring,

Rule refused. (a)

(a) The cause went down again for trial at the Spring Assizes for Lincoln in 1855, but ended in a compromise.

In a Report of a select committee of the Royal Institute of British Architects, on the subject of dilapidations, published in 1844, the following resolution as to ecclesiastical dilapidations was adopted, and, it is understood in the profession, has ever since been acted upon :

"The committee are of opinion that the usual practice as to ecclesiastical dilapidations, is, to consider that (independently of the obligation to compensate for actual deficiencies) the representatives of a late incumbent are liable for the value of repairs equivalent to, or consonant with, the extent of those which, in civil cases, a lessee would be called upon to perform on taking a lease for twenty-one years, under an agreement to put the premises into complete and substantial repair at the commencement of such term. The committee, however, especially direct attention to the case of Wise v. Metcalfe."

*WILKIN v. REED.

June 3.

[*192

The declaration in an action for giving a false character of one P., a clerk, alleged that the defendant fraudulently represented to the plaintiff that the reason why he had dismissed P. from his employ, was, the decrease in his business, and that the defendant recommended the plaintiff to try P., and knowingly suppressed and concealed from the plaintiff the fact that P. had been dismissed from his employ on account of dishonesty.

It appeared at the trial, that P. had been guilty of dishonesty while in the defendant's employ, but that the defendant had not mentioned that fact to the plaintiff when he recommended him to try P. It further appeared, however, that P. had not been dismissed from the defendant's employ on account of his dishonesty, but really for the reason which the defendant had assigned to the plaintiff :—

Held, that this evidence did not support the declaration.

The judge at the trial refused to allow the declaration to be amended by inserting an allegation "that P., whilst in the defendant's employ, was guilty of dishonesty," instead of the allegation "that P. had been dismissed from the employment of the defendant on account of dishonesty:" -Held, that the amendment was properly refused,-the matter in controversy between the parties being, not whether the defendant had fraudulently suppressed the fact that P. had been guilty of dishonesty, but whether he had given the true reason for having dismissed him. Semble, that it is for the judge at the trial, looking at the record and at the evidence, to say what is "the real question in controversy between the parties," within the meaning of the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, s. 222.

THIS was an action for an alleged false representation as to the character of a clerk.

The declaration stated, that, during all the time thereinafter mentioned, the plaintiff practised as an attorney and solicitor, and carried on business as such: That one William Henry Pargeter applied to the plaintiff to employ him as clerk of the plaintiff in the plaintiff's said business, of which the defendant, at the time of the false and deceitful representations and assertions made by the defendant as thereinafter mentioned, had notice: That the said William Henry Pargeter had, before the time of the committing of the said grievances by the defendant, been in the employment of the defendant and his partners, carrying on business as attorneys and solicitors, and had ceased to be in such employment: That thereupon the defendant, well knowing the premises, but intending to deceive and defraud the plaintiff, and to induce the plaintiff to employ the said William Henry Pargeter as clerk of the plaintiff in the plaintiff's said business. falsely, deceitfully, and fraudu

lently [represented and *asserted to the plaintiff that the princi*193] pal reason of the said William Henry Pargeter having left the employ of the defendant and his said partners, was, the alteration that had recently been made in the practice of common law by the Common Law Procedure Act, and the reduction of the profits of that branch of their business; that the only branch of the profession in which the defendant considered the said William Henry Pargeter deficient, was, Chancery; but that, with that exception, considering the nature of the plaintiff's business, the defendant thought the plaintiff would find the said William Henry Pargeter very useful, and that the defendant] recommended the plaintiff to try the said William Henry Pargeter; and the defendant then knowingly suppressed and concealed from the plaintiff the fact that the said William Henry Pargeter had been [dismissed from the employment of the defendant and his said partners on account of the dishonesty of the said William Henry Pargeter]: By means and in consequence of which said false representations and assertions of the defendant, the plaintiff, believing and relying on the truth of the said representations and assertions, and not knowing or believing to the contrary, and induced thereby, took the said William Henry Pargeter into his, the plaintiff's, employ as clerk in the plaintiff's said business, and the said William Henry Pargeter entered upon the said employ, and continued for some time therein: Whereas, in fact, as the defendant at the time of making the said representations and assertions well knew [the principal reason of the said William Henry Pargeter having left the said employ of the defendant and his said partners, was not the reason so assigned, represented, and asserted by the defendant; and whereas, as the defendant at the time of making the said representations and assertions well knew, the principal reason of the said William Henry Pargeter's having left the said employ *of the defendant *194] and his said partners, was, that] the said William Henry Pargeter had been dishonest, and had committed divers acts of dishonesty : That, after the making of the said false, deceitful, and fraudulent representations and assertions, and before the commencement of this suit, the plaintiff sustained great loss and damage by reason of and in consequence of the same, in this, that, after the plaintiff had taken the said William Henry Pargeter into his said employ, and whilst the plaintiff, induced by and relying on the said representations and assertions of the defendant, was employing the said William Henry Pargeter as aforesaid, the said William Henry Pargeter, in his said employ, and in violation of his duty therein, and before the commencement of this suit, improperly and fraudulently obtained and received moneys of the plaintiff, and improperly and fraudulently appropriated and applied to his the said William Henry Pargeter's own use certain moneys of the plaintiff, and certain moneys which he ought to have paid but did not pay to the plaintiff, and improperly and fraudulently omitted to apply to cer

tain purposes for and on behalf of the plaintiff certain moneys which he ought as such clerk to have applied to such last-mentioned purposes, and improperly and fraudulently appropriated and applied to his the said William Henry Pargeter's own use certain moneys of clients of the plaintiff in his said business, and for which the plaintiff was responsible; and by reason of the premises, the plaintiff, before the commencement of this suit, wholly lost the said moneys, and was damaged to the amount of the same.

The defendant pleaded not guilty, whereupon issue was joined.

The cause was tried before Maule, J., at the second sitting in London in Easter Term last. The facts which appeared in evidence were as follows:-The plaintiff, an attorney, in November, 1852, wanting a managing *clerk, and being referred by one William Henry [*195 Pargeter, who was desirous of entering into his employ in that capacity, to the defendant, who was a member of a firm in whose service. Pargeter had been, for his character and acquirements, called upon the defendant, and asked him,-first, for what reason Pargeter had left his employ, secondly, whether he was sober,-thirdly, whether he was competent to be intrusted with the conduct of the plaintiff's business in his absence. To the first of these questions, the defendant replied, that Pargeter had left his employ in consequence of the decrease in the profits of his business, resulting from the changes introduced by the Common Law Procedure Act; to the second, that Pargeter was sober; and, to the third, that he perfectly understood common law, but required a good deal of looking after in Chancery: and he added,"He will suit you very well; and I should recommend you to try him.” Upon this representation and recommendation the plaintiff took Pargeter into his employ, but was ultimately obliged to dismiss him, having discovered that he had embezzled considerable sums of money which had been intrusted to him.

It was proved that Pargeter had whilst in the defendant's employ committed similar acts of dishonesty. But it appeared that the defendant had, out of consideration for his wife and family, and his professions of contrition, overlooked his offences, and continued him for some time in his employ; and that he was ultimately discharged for the reason which the defendant had assigned.

The plaintiff's counsel thereupon applied that the declaration might be amended, by striking out the parts within brackets, and inserting therein, in place of the words "dismissed from the employment of the defendant and his said partners on account of the dishonesty of the *said William Henry Pargeter," the following words, "while in the employment of the defendant and his said partners, guilty of dishonesty."

[*196

The learned judge, after some consideration, declined to allow the proposed amendment; and, being of opinion, that, upon the record as

it stood, there was no evidence to support the declaration, he directed the jury to find a verdict for the defendant.

Byles, Serjt., in Easter Term last, obtained a rule nisi for a new trial, on the ground that the learned judge had improperly refused to. allow the declaration to be amended, and that there was evidence to go to the jury in support of the declaration as it stood; citing Foster v. Charles, 4 M. & P. 61, 741, 6 Bingh. 396 (E. C. L. R. vol. 19), 7 Bingh. 105 (E. C. L. R. vol. 20). He also moved substantively for an amendment under the 15 & 16 Vict. c. 76,

S.

222.

Watson and Lush now showed cause.-There was no evidence to support the declaration as it stands. The gravamen is, that the defendant falsely represented to the plaintiff that the principal reason of Pargeter having left the employ of the defendant and his partners, was, the alteration in the practice, and the consequent reduction of profits, and suppressed the fact that Pargeter had been dismissed on account of dishonesty. It appeared that Pargeter had in fact been guilty of dishonesty whilst in the employ of the defendant and his partners. But there was no evidence that that was the ground of his dismissal. On the contrary, it distinctly appeared that his offence had been condoned, and that he continued in the employ for a considerable period afterwards, and was in truth discharged for the reason which the defendant assigned.

Then as to the amendment,-The 3 & 4 W. 4, c. 42, s. 23, is still in operation, and is unrepealed by the 15 *& 16 Vict. c. 76, s. 222: *197] and, under that statute, though there was a right of appeal where an amendment was improperly made, there was none where the application to amend was refused: Doe d. Poole v. Errington, 1 Ad. & E. 750 (E. C. L. R. vol. 28), 3 N. & M. 646 (E. C. L. R. vol. 28), 1 M. & Rob. 343. (a) [JERVIS, C. J.-The point was recently before this court in a case of Lewis v. Clifton.(6) My Brother Byles there contended stoutly, that, I having refused to allow an amendment at the trial (in which I think I was wrong), there was no power of appeal. We shall, no doubt, presently hear him arguing as stoutly the other way.] The 222d section of the 15 & 16 Vict. c. 76, gives very large powers to the court to amend at any stage of the proceedings. It enacts that "it shall be lawful for the superior courts of common law, and every judge thereof, and any judge sitting at Nisi Prius, at all times to amend all defects and errors in any proceeding in civil causes, whether there is anything in writing to amend by or not, and whether the defect or error be that of the party applying to amend, or not; and all such amendments may be made with or without costs, and upon such terms

(a) But see Parks v. Edge, 1 C. & M. 429,† 3 Tyrwh. 364 (nom. Parker v. Ade, 1 Dowl. P. C. 643); Pullen v. Seaven, 2 Gale, 132; Whitwill v. Scheer, 8 Ad. & E. 301 (E. C. L. R. vol. 35), 3 N. & P. 393. And see Parry v. Fairhurst, 2 C. M. & R. 190,† 5 Tyrwh. 685.

(b) In Lewis v. Clifton, the court took time to consider; but no judgment was pronounced, the parties having settled.

« PreviousContinue »