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SATURDAY, JUNE 3, 1837.
—— " Quod maels ad Nos
Pertinet, et nescire malum est, agitamut.
RIGHT OP A JOINT-STOCK COMPANY TO APPLY TO PARLIAMENT FOR A FURTHER ACT.
Mr. Gow, in his Treatise on Partnership, lays it down that in a partnership "each partner has the power of insisting that the original contract of partnership shall not be contravened by an extension of its purposes, and he is not deprived of that power, notwithstanding the other partners offer to indemnify him against the loss that may be sustained by embarking in transactions which were not, in the first instance, intended to form a partnership concern; for whilst the partnership continues, the right of a partner is to hold his co-partners to the specified purposes of their association, and not to rest upon indemnities, with respect to what he has not contracted to engage in" (p. 7); and, in a subsequent page (p. 81), he says, "Where some members of a partnership or company seek to embark one of their body in a business which was not originally part of the partnership concern, and they are unable to shew that such partner, either expressly or tacitly, acquiesced in the proposed extension of the concern, a Court of Equity would, it is apprehended, restrain them from proceeding in the execution of their intention, without dissolving the partnership or company;" and for both of these propositions he cites Nautsch v. Irving, which is reported at length in his Appendix. But although these rules are correct, so far as they apply to private partnerships, yet they would seem not to be so with respect to companies, so far at any Vol. xiv.—No. 401.
rate as an application to Parliament for att extension of their powers is concerned.
Thus where persons were authorized by act of parliament to cut a canal, and required to appropriate certain sums for the construction and maintenance of works to protect a harbour in which the canal was intended to terminate, and an injunction was applied for to restrain them from cutting through their own lands at a distance from the harbour, in the event of a present insufficiency of funds for the completion of the undertaking, pending an application to Parliament for further powers to levy money, it was refused by Lord Eldon, O*
Where, however, the application to Parliament has for its object an entire change! of the purposes for which the company was established, perhaps a Court of Equity would interfere. As when a bill was filed by the plaintiff (a shareholder suing only on hi* own behalf) against a company which m incorporated by a local act of parliament, M restrain the company by injunction from affixing the corporate seal to a petition to) Parliament for an act to convert a portion of the canal into a railroad, and from applying any of the corporate funds to the proposed object, Sir L. Shadwell, V. C, offered to give the defendants time to answer the affidavits, on condition that they would take no steps in the meantime. The counsel for the company rejected the offer, and contended that there was no equity for such relief as the bill prayed. His Honour, however, expressed a contrary opinion, and granted the injunction. The company, the reporters add, had not time to ap
74 On the Right of a Joint-stock Company
to apply to Parliament for a further Act.
peal, without running the hazard of losing the parliamentary session, and they therefore came to a compromise with the plaintiff, who thereupon abandoned the suit. A few days afterwards a bill was filed by one Maudsley, against the same company, and for a similar object. The defendants filed a demurrer, which the Vice Chancellor overruled. The company then put in an answer, and the cause was subsequently heard on the merits, and the suit dismissed with costs."
But the main question has been fully discussed in a case just reported, although decided by Lord Brougham, C, in 1831. In this caseb an injunction was applied for to restrain the Grand Junction Water Works Company, from applying to Parliament for an act authorising the company to procu»e its supply of water, by means of an aqueduct from the river Colne, instead of the Thames, as authorised by the existing acts under which it was incorporated. The injunction was refused, and the whole of the judgment of Lord Brougham is well worthy of attention. We shall extract a portion of it, in which it will be seen that this important point is fully met and disposed of.
"It is quite idle to represent this, as was at first sought to be done, as an attempt to restrain by injunction the proceedings of the High Court of Parliament. This is no injunction to restrain any proceedings of Parliament, or to restrain any parties who may be called upon by the authority of Parliament from intervening in such proceedings, it is simply on injunction to restrain a partnership now existing under a certain constitution, from doing any act in its corporate capacity, with a view }o obtain a new modelling of that constitution, say an extension, or a variation, or even a total change of it. I am of opinion that the right to take proceedings in Parliament, in the way that is proposed, 13 incident to a corporation of this nature; at the same time fully admitting that the shareholders are certainly not entitled to do any thing which the partnership prohibits, or which those acts of parliament, which, in truth, constitute their deed of partnership, give them no authority to do. Although, therefore, I am How disposed to support the injunction as to all such acts as arc not authorised by the present constitution of the company, I will not interfere to restrain the company, r/uil corporate body, from applying to the legislature and obtaining a change in its constitution, which will put those acts of parliament upon a different footing, hy extending its powers, or by substituting a new
s Cunliff v. Manchester and Bolton Cannl Company, 2 Russ. & Myln. 480.
b Ware v. Grand Junction Company, 2 Russ. & M., 470.
body for the old. I can see nothing in the nature of a corporate body of this description, to prevent that body from so dealing with itself, and asking for such an extension or variation of its constitution. A corporation may apply to the crown for a new charter; and the new charter, when accepted, binds the corporation, and gives it u new existence. And why may not such a body as this, in like manner, applyto Parliament for an alteration and extension of its powers? It was said that if corporate bodies of this description are allowed to make such nn application, those who rely on that constitution are deceived, because they come in upon the faith and footing of its being a partnership of a certain kind, and now it is sought to be materially altered. But are not a man's eyes open to the fate that attends biu> when he enters into a partnership with a body of this kind? Dues he not know that he is liable to this contingency, and either that the company ought to have the power of obtaining an alteration in its constitution, or that he ought to come in as a member of it under certain conditions an.I restrictions? All the arguments used here touching the great change to be effected by the new project—that the change is as great as if, instead of a canal, there was to be an application to convey by steam upon a railroiid—that it is likely to ruin the proprietors, and the like—are still open to the plaintiff before a committee of the House of Commons, or House of Lords. There is not a single individual, who fancies himself aggrieved by the proceedings, who may not apply in person belore that tribunal, and hy his agents, counsel, and witnesses, oppose the passing of the hill into a law. Is not that the old, regular, and constitutional mode? and is not this a new and an irregular mode of proceeding? If this application is listened to. every time a imv act of parliament is applied for by a body consisting, like this water company, of 600 or 700 proprietors, if a single member chooses to differ from the rest kand, indeed, but for that very difference the intervention of Parliament would, in most cases, be unnecessary), before the corporate seal can be carried to Westminster at the foot of a petition by the company, praying for an extension of its powers, the matter must first be discussed here upon an injunction bill; and if it survives the injunction bill, then, and not till then, wilt it come to its proper tribunal. I, for one, Hid not prepared to open this door to litigation. There never was so wild a dream as to imagine that, by refusing this motion, I shall overturn a decision of Lord Etdun'n in Nuluscli v. Irvinn-. 1 am rather, in fact, affirming that decision; but if 1 upheld the whole of this injunction, I should he going against the principle of the case of The Mayor of Lynn v. I'emliertoa, 1 Swaust. 244. The language of Lord EMon's judgment in the latter case, plainly shews that he could not have done what he is represented as having done in Natutch v. Irving. It is said that this is an attempt on the part of the company to do acts which they are not empowered to do by the acts of parliament. So far I re strain them by injunction from any conversion or application of these funds thai is not authorized. But that is not "hnt the plain tiff now asks; for he asks me to restrain them from doing that, which will make what they propose to do, a lawful act. The dealings between the parties, and the whole of the objections are still open in the proper place. With the trifling exception advcrteil to, therefore, the injunction must be dissolved."
On Indicting a Person as Accessory after his Acquittal as a Principal.—New Bills. 75
ON INDICTING A PERSON AS ACCESSARY AFrERHIS ACQUITTAL AS A PRINCIPAL.
Loan Hale lays it down" that if A. be indicted as principal, and acquitted, he shall not be indicted as accessory before, and if he be, he may plead his former acquittal in bar, for it is in substance the same offence. But he says that the ancient law was otherwise; and if he be indicted as principal and acquitted, he may yet be indicted as accessory after, for they are offences of several natures. This doctrine, however, has been doubted by Mr. Justice Foster,b and Mr. Serjeant Hawkins ;c and in a late cased this doubt has been supported by the fifteen Judges. The prisoners were tried for the murder of Edward Plant, a child of the female prisoner, by poisoning him. In some of the counts of the indictment, both prisoners were charged as joint principals in the actual murder, and in others Louisa Plant was charged with the actual murder, the other prisoner being charged as present, aiding, and abetting. It appeared that the two prisoners cohabited together, and that both went towards a druggist's shop, when he gave something into her hand, and she went into the shop and bought the poison, and, on coming out, gave something to the male prisoner. It further appeared, that the female prisoner, about a fortnight after this, took the deceased up stairs, and gave him the poison, the male prisoner being in the back-yard of the house at the time. Upon this indictment the female prisoner was convicted, and the male prisoner acquitted, on the ground that he was not present with the other prisoner at the time of the murder, and that he was on this evidence an accessory before the fact. The prisoners were again indicted, the female prisoner as a principal in the murder, and the male prisoner as an accessory before the fact. To
this indictment the male prisoner pleaded his acquittal on the former indictment. To this plea there was a demurrer; but it was held by Lord Denman, C. J., that the plea of former acquittal was no bar to the present indictment, and that the male prisoner must take his trial, but reserved this point for the consideration of the twelve Judges, who, on its being argued before them, held the conviction of the male prisoner on the second indictment to be right.
NEW BILLS IN PARLIAMENT.
The object of this bill is " to authorize the application of highway rates to turnpike roads in certain cases."
It recites that the inhabitants of parishes, townships and places in which turnpike roads are situated, were heretofore bound to maintain and keep such roads in repair, and were chargeable thereunto by the name of statute duty, or with a composition in money to be paid instead thereof: and that by the 5 & 6 W. 4, c. 50, divers statutes passed in the reign of his late Majesty King George the Third relating to the performance of statute duty were repealed, with the intent that statute duty should be thereby altogether abolished: and it hath been doubted whether the provisions of the said act of his present Majesty are of force sufficient to take away the obligation to do statute labour upon turnpike roads, and it is expedient that such doubts be removed.
It also recites that the revenues of some turnpike roads are so unequal to the charge and maintenance of such roads, when deprived of the aid heretofore derived from statute duty, that it is necessary that some additional provision be made for such roads for a limited period.
It is therefore proposed to be declared and enacted as follows:
1. Statute duty declared not requisite on turnpike mails.
2. Justices to inquire at special sessions for highways into the revenues and condition of the repairs of turnpike roads, and, if necessary to apportion a part of highway rate to trustees of turnpike roads.
3. If surveyor refuse to pay over rate or assessment, same to be levied on bis goods and chattels.
4. Power of appeal to the next general or quarter sessions.
This is a bill "to regulate the times of payment of rates and taxes by parliamentary electors, and to abolish the stamp duty on the admission of freemen."
It recites that it is expedient to make further regulation as to the payment of rates and
Uxes by persons whose nameshave been once registered as voters in the election of members of parliament, and to abolish the stamp duty payable on the admission of freemen in boroughs returning members to parliament. It is therefore proposed to be enacted as follows:
1. Rated and taxes of persons already on the register of parliamentary electors for boroughs, need not he paid beyond the 11th day of the previous October.
2. Abolition of stamp duty on the admission of freemen.
FINAL REGISTER OF ELECTORS.
It is intended by this bill to render the register of electors final, and to amend certain provisions in the Reform of Parliament Act.
The preamble states that it is expedient that every person whose name shall appear on the register of electors in force for the time being, according to the provisions of the 2 W. 4, c. 45, shall have the right of voting at any contested election of a member to serve in parliament for any county or borough, notwithstanding such person may have lost or changed his qualification since the period at which the register was made: and that it would tend to the Saving of time and expence, if election committees of the house of commons, or other courts for the trial of disputed elections, were prevented from enquiring iuto the goodness or badness of any vote legally tendered, unless such vote shall have been previously objected to, or shall have been a matter of controversy before the revising barrister, by whom the register of electors in force at the time of the disputed election hus been made:
This Hill also states that it is by the said recited act, among other things enacted, that the following question may he put to any voter at the time of tendering his vote: (that is to say)
"Have you the same qualification for which your name was originaly inserted in the register of voters now in force for the county of, &c. [or, for the
riding, &c. or for the city, &c., as the case may be, specifying in each case the particulars of the qualification, as described in the register"]?
and that it is expedient the aforesaid question
be not put.
The proposed enactments are as follows:
1. Question in recited act repealed.
2. That at all contested elections of members to serve in parliament, every person whose name shall appear in the register of electors in force for the time being, shall have the right of voting, and it shall not be lawful for the returning officer, or any person in his behalf, to make any inquiry whatever respecting the qualification or loss of qualification of any person whose name is inserted in such register of electors; Provided always, that any other questions allowed by the said recited act, or any oath or affirmation now required by law. inav still be put to the voter.
Power of Electiun Committees.—By the 2 W.
4, c. 45, s. (i0, it is provided, that upon petition to the House of Commons, complaining of an undue election or return of any member or members to serve in parliament, any petitioner, orany person defending such election or return, shall be at liberty to impeach the correctness of the register of voters in force at the time of such election, by proving that in consequence of the decision of the barrister who shall have revised the lists of voters from which such register shall have been formed, the name of any person who voted at such election was improperly inserted or retained in such register, or the name of any person who tendered his vote at such election impropeily omitted from such register; and the select committee appointed for the trial of such petition shall alter the poll taken at such election according to the truth of the case, and shall report their determination thereupon to the House; and the House shall thereupon carry such determination into elfect, and the return shall be amended, or the election declared void, as the case may be, and the register corrected accordingly, or such other order shall be made, as to the House shall seem proper; and doubts have arisen as to the true intent and meaning of'the enactment with respect to the power and authority of any such committee to inquire into the validity or invalidity of the vote of any person being on the register of electors in force at the lime of such election; Be it therefore enacted, that such committee may inquire into and decide upon the right to vote of any person who (being upon the register of electors, or upon the list of claimants, or upon the list of expunged votes) shall have voted at such election, only in case it shall appear to the committee that such elector shall have been inserted in or rejected from such register or list by an erroneous decision of the revising barrister, after his making inquiry into such vote in open Court; and it shall not be lawful for the said committee to inquire into the goodness or badness of any vote, which shall not have previously been objected to or claimed to be good before such barrister.
4. But the committee are not to inquire into disputed votes on the ground of any legal incapacity which may have arisen subsequently to the twentieth day of July next preceding the formation of such register, or on the ground of not having, at the time of voting the same qualification for which the name was originally inserted in the register, or the same place of abode.
5. Scot and Lot.—That where any person had, at the passing of the said recited act, a right to vote in the election of a member or members for any city or borough in virtue of any other qualification than as a burgess or freeman, or as a freeman and liveryman, or in case of a city or borough being a county of itself, as a freeholder or burgage tenant, and such right was reserved by the said recited act, and under such right the payment of any rates or taxes forms a part of the qualification, it shall be sufficient if the person so retaining such rights shall have paid, on or before the twentieth day of July in every year, all the rates and taxes which shall have become payable from him previous to the sixth day of April then preceding; and he shall thereupon be entitled to be registered as fully and effectually as if aH rates and taxes had been paid up to the thirty-first day of July in every year.
New Bills in Parliament.—Disputed Ancient Opinion.— Coroners' Expenses. 77
6. Occupancy.—By the said recited act it was enacted, that in every city or borough which should return a member or members to serve in any future parliament, every male person of full age, and not subject to any legal incapacity, who should occupy within such city or borough, or within any place sharing in the election of such city or borough, as owuer or tenant, any house, warehouse, counting-house, shop or other building, being either separately or jointly with any laud within such city, borough or place, occupied therewith by him as tenant under the same landlord, of the clear yearly value of not less than ten pounds, should, if duly registered according to the provisions thereinafter contained, be entitled to vote in the election of a member or members to serve in any future parliament for such city or borough: and doubts have arisen as to the construction and meaning of certain parts of the said enactment; be it therefore declared and enacted, that the occupation of any house, warehouse, counting-house, shop or other building, jointly with any other warehouse, counting-house, shop or other building, or with any number or combination of such premises, shall be deemed to be within the true intent and meaning of the said enactment.
7- Tenement occupied with land must be of 51. clear yearly value.
8. New Shoreham electors, not assessed to land tax, may vote.
9. Joint occupiers may vote, if rent be equal to 50/.
DISPUTED ANCIENT OPINION.
Our readers will have noticed a controversy in the newspapers," regarding a supposed opinion of Mr. Serjeant Snigge, in the year 1604, on the 43d Elizabeth, for the relief of the poor. Having seen the disputed document in the library of the Law Institution, where it was deposited by Mr. Tooke, it may be interesting to give some account of it.
It bears the signature of " G. Snigge, Whitefriars, ye. first of April, 1604;" and it is intituled " Case on the act for the relief of the poor, submitted to the opinion of Mr. Serjeant Snigge." It states that the parish of C. is very opulent and extensive, and on account of one of the greater monasteries having lately existed in the adjoining parish, has among its inhabitants a considerable number of idle and dissolute poor. Questions are stated as to the appointment of overseers, making the rates, the mode of relief, rating the poor, the scale of re
• See "The Times," of 19th, 20th, and 22d May.
lief, the election of churchwardens, the apprenticing children, farming the poor, and the construction of the act. The opinion is far too long to be extracted. In one of the notes of the supposed translator, it is stated that " Sir George Snigge, the learned serjeant whose opinion is therein contained, appears from the reports of that period to have been highly esteemed as a sound lawyer. He was very soon after made a Baron of the Exchequer. His construction of the statute is very opposite to what has since generally prevailed. But if it has no merit as a legal opinion on the act, taken at the time, it may, however, be perused as a literary curiosity." The editor then states that "he has taken some pains to translate it into a modern dialect, divested of the LawFrench and Law-Latin quotations, and those quaint and obsolete phrases which constituted the grim-gribber of that dav."
Allowing for the alterations effected by the translation, which, it is stated, the document has undergone, it is still manifest from its internal evidence, that the composition is of a modern date; and those who are conversant with the legal writings of the time, well know that nothing resembling this document, as the opinion of counsel, ever existed. Mr. Tooke states that the paper was in the year 1804., given to him by B. M. Forster, Esq., a very benevolent individual, connected with most of the charitable institutions of that period. His father was Edward Forster, governor of the Russia Company, and his only now surviving brother is Mr. Edward Forster, a partner of Sir J. W. Lubbock. The MS. note on the paper is in the hand writing of Mr. B. M. Forster, and the fact therein mentioned of the fabrication of the document in question, was the subject of occasional conversation with him and Mr. Granville Sharp, and others at that period, in Mr. Tooke's presence, and severely animadverted on by some, and deeply regretted by all. .
The MS. note is as follows:
"Surely the society for /lettering the conn dition of the poor have acted very improperly in suffering this fiction to be circulated with their books: falsehood should not be published as truth. How are the subscribers and public in future to know what they are to believe, and what disbelieve?"
To the Editor of the Legal Observer.
Having seen that you have directed the attention of the Legislature to the Coroners' Expenses Bill, I beg to address you on the subject of another Bill, relating to the same subject, which has passed the House of Com-, mons, and is now before the House of Lords. It has been brought in by the Attorney and Solicitor General, "to provide for the costa of prosecutions for concealing the birth o£