Bright v. Hutton. Upon the delivery of this answer, the house was moved, in the following terms, by The LORD CHANCELLOR. My lords, in this case, in which you have just heard the opinion of the learned judges, a question of great importance remains to be decided. It is whether, under the facts stated, Mr. Bright was or was not liable to pay as a contributory. He paid his deposits. With regard to that, no question was asked of the judges; the question was as to further liability. He was a provisional committee-man, and he had had shares allotted to him, and those shares he accepted, and paid a deposit upon; but he did no further act. Now, I understand, my lords, the judges to be of opinion, that, independently of Upfill's case, there was no liability arising out of those facts which would have made Mr. Bright liable to creditors for business carried on or ordered by the managing committee, for the completion of the undertaking, until it became a regular company. My lords, Upfill's case may be considered, as the judges have considered it, as a mixed case of law and fact; therefore it may not be so difficult for your lordships to deal with it as it otherwise might be. At the same time, I should venture to state to your lordships as my opinion, that although you are bound by your own decisions as much as any court would be bound, so that you could not reverse your own decision in a particular case, yet you are not bound by any rule of law which you could lay down, if, upon a subsequent occasion, you find reason to differ from that rule. That is like every court of justice, and I regard this as a court of justice; it is inherent in the nature of every court of justice that it should have liberty to correct any error into which it may have fallen. In regard to the point decided in Upfill's case, I must state to your lordships, in the presence of the learned judges, that I believe there is scarcely one judge before whom this question has originally come-and there is no court, and hardly any judge before whom this question has not from time to time come-which judge has not, and which court has not, differed from itself in regard to the points decided. There was so much of novelty in the establishment of the provisional committees, there was so little of law to direct the opinions of lawyers upon it, and there was such a leaning in favor of a quasi partnership and an implied responsibility, that I am sure your lordships will not be surprised if in Upfill's case, as in many others I could quote, there may have been a departure from that which is now considered to be a settled rule. I believe the general opinion now is, that the answer which has been given by the learned judges is that which your lordships will follow, that, considering their opinion to be that Mr. Bright, in this case, would not be liable to an action, your lordships would follow that rule, and leaving Upfill's case, as depending upon the matter both of fact and law, just where you found it, you will decide this case upon the question submitted to the learned judges, and upon that opinion give your judgment. I should therefore propose to your lordships, without going further into detail, after the opinion delivered, that your lordships should dismiss the appeal of the official manager, requiring Bright v. Hutton. Bright to pay a larger sum than he had hitherto been charged with, and reverse the order of the court below, which holds him to be liable to contribute to that call of 10l. The consequence of reversing the one, and dismissing the other, will be, that Mr. Bright will be held from this time not to be liable to any contribution in this company beyond the deposit which he actually paid. LORD BROUGHAM. When I advised your lordships in Upfill's case I had the concurrence of a very high authority, the late noble and learned Lord Cottenham, who not only went entirely with me in the advice that I tendered to your lordships, and which you were pleased to accept in that case, but went a great deal further, as I stated at the time. When I gave the judgment in Upfill's case, I either read or had in my hand a letter from Lord Cottenham on the subject, in which he certainly went a good deal further than I was disposed to go, in admitting the liability of a party in similar circumstances. I therefore felt no hesitation whatever in the conclusion which I arrived at myself in Upfill's case, and which I advised your lordships to adopt. Whether I should have altered that opinion now, had I considered the question open, it would, indeed, be superfluous in me to say. The learned judges, to whom the question has been submitted, have given an unanimous, and I believe I may say an unhesitating opinion, that this question, which they say is partly a question of law and partly a question of fact, but which, in my opinion, is a great deal more a question of fact than of law-they have given their opinion upon that to the extent that the evidence of a man being a provisional committee-man, and his having shares allotted to him by his own consent indeed, at his request - would not be sufficient to warrant a verdict in an action at law brought against him for money expended by the managing committee in that concern. The learned judges have given this opinion. It is not for me to say whether I agree with them or not. It would be superfluous in me to say I agree with them; it would be unbecoming in me to say that I differ from them; it is enough for me to say that I entirely approve of the course recommended, under the circumstances, by my noble and learned friend on the wool-sack, namely, the affirmance of one appeal and the reversal of the other. LORD CAMPBELL. My lords, I rejoice very much that this matter, of the liability of contributories, is now put upon what I think is a right footing. I never could understand why it was considered a pure question of law-why provisional committee-men, or allottees of shares, persons who stood in both capacities, were to be liable as contributories. The law does not know what the meaning of a provisional committee-man is, yet we have had these liabilities talked of as if they were as well known to the law as "tenants for life" or "tenants in tail." I consider this as a matter of contract. A person can only become liable as a contributory in respect of the contract he has entered into, or in respect of the liability which he has incurred by taking a particular character. The question of contract Bright v. Hutton. will depend upon the facts of the case, not merely on his being a provisional committee-man; and then it will only be a question of law whether there is evidence to submit to the jury to consider whether a contract has been proved in matter of fact, to be decided as matter of fact. Now, I say that I entirely concur with the opinion delivered by her majesty's judges; and I think that in this case the evidence is not sufficient to fix the liability of Bright, and that if it had been laid before a jury, the judge ought to have directed a nonsuit. A difficulty arises here from Upfill's case; and if I consider that that was expressly in point, I must say, with the most sincere respect for the opinion of my noble and learned friend on the wool-sack, that I should hesitate in advising your lordships to decide against it; because, according to the impression upon my mind, a decision of this high court in point of law is conclusive upon the house as well as upon all inferior tribunals. I consider it the constitutional mode in which the law is declared, and that after such a judgment has been pronounced, it can only be altered by an act of the legislature. My humble opinion is, that this house cannot decide a thing as law today, and decide differently the same thing as law to-morrow, because that would leave the inferior tribunals in uncertainty, and the rights of the queen's subjects in a state of uncertainty. After there has been a solemn judgment of this house, laying down any position as law, I apprehend that that is binding upon the rights and liabilities of the queen's subjects, until it is altered by an act of commons, lords, and the sovereign on the throne. That is my present impression. I state that with great diffidence, after a different opinion has been expressed by my noble and learned friend. I do not think that I am precluded from concurring in the motion that has been made in this case, because I do not consider Upfill's case as laying down any abstract point of law. It was an appeal from a court of equity. Your lordships sat as a court of equity to decide it; you took into your view the facts and the law; and I consider what was laid down by my noble and learned friend, with the concurrence of that illustrious judge, Lord Cottenham, when he talked of the liability of a committee-man, that was stating his opinion upon fact, and not his opinion upon an abstract point of law. I do not think that Upfill's case prevents me from concurring in the motion of my noble and learned friend, and therefore in that motion I entirely concur. LORD CRANWORTH. The question now before your lordships is, in fact, an appeal from an order made by myself. But I believe, as I stated in the course of the argument, that although the order was made by myself, it was made rather by consent, and at the sugges tion of, or rather at the instance of, the learned counsel, that I should affirm simply what the Master had done, in order that the question might be brought, by way of appeal, to your lordships' house. did so, but I believe upon that occasion-certainly, if not upon that, upon a great many similar occasions, in cases which were argued before me when Vice-Chancellor-I expressed my very strong doubt whether Upfill's case could have been rightly considered, or rather I Bright v. Hutton. rightly interpreted, by the profession, or, if so interpreted, whether it was a decision which could be acted upon. Because what was thought was, that Upfill's case had decided, as matter of law, that persons under certain circumstances were liable, in point of fact, to certain claims that were made upon them. Now, it did not appear to me that it was possible that that could have been the intention of the house. that this house could have intended to decide that such a combination of circumstances rendered a person liable in point of fact; it was, however, so interpreted, and having been so interpreted, I acted upon it. I rejoice that the matter has been brought before the house, because I cannot help thinking that the opinion which has now been delivered unanimously by the judges, in such very clear and distinct terms, will go far to settle doubts that have created enormous expense and anxiety beyond measure in the winding up of these several abortive companies. I concur with my noble and learned friend. I do not think that we need treat this case as necessarily at variance with Upfill's case, because Upfill's case was a mixed decision of law and fact. I confess that, treating it as a question of fact, the conclusion to which your lordships arrived was not, I believe, that to which I should have arrived if I had then had the honor of a seat in your lordships' house. Your lordships decided that Upfill was properly put upon the list of contributories. I confess I think that that was an erroneous decision in point of fact. But treating it either in the one way or the other, the opinion now delivered by the judges seems to me to set us free to do that which is just between these parties. The judges are of opinion, distinctly, that but for the decision in Upfill's case, there was nothing here that could leave it for a jury to say whether Mr. Bright was or was not responsible. If he was not responsible, if the matter had been brought before a jury, he was clearly not responsible here. I think it necessary to advert to one of the arguments addressed from the Bar, namely, that although not responsible at law, he might be in equity. I know of no such possible distinction he was liable, if at all, by virtue of a contract. If there was a contract, he was liable at law; if there was no contract, he was not liable at law or in equity. The opinion of the judges leads clearly to the inference that he was not liable at law; therefore, if he was not liable at law, the result will be, as my noble and learned friend on the wool-sack has moved, that one appeal will be dismissed, namely, that which sought to render him liable to a greater extent than he was held liable to below. The other appeal, on the other hand, of the party that complained of the order that was made making him liable, will be reversed. The appeal of the official manager dismissed; the appeal of Mr. Bright allowed. Paterson v. Paterson. PATERSON V. PATERSON.1 August 9, 1850. Divorce-Practice-Costs. Neglect, silence, shunning the wife's company, and declarations by the husband that he will never cohabit with her, do not constitute that "cruelty and maltreatment" in respect of which the law will grant to the wife a divorce a mensâ et thoro. Where, in a case of this sort, the Court of Session had pronounced for a divorce, the Lords reversed the. Interlocutor. Actual personal violence, or the immediate menace of it, is not the only ground of maltreatment in respect of which such a divorce will be granted. Quere, whether constant revilings and accusations of all sorts of crimes made, and falsely made, before friends and servants, would constitute a ground for such a divorce. The general principle of the law as to divorce a mensâ et thoro is the same in England and Scotland. [But it seems that a special principle exists in the law of Scotland, which permits a divorce for a wilful desertion continued for four years.] In a suit for a divorce a mensâ et thoro the wife obtained judgment in the Court below, with costs. That judgment was reversed by the Lords, on the ground that the remedy sought was not the proper one; but the Interlocutor was allowed to stand so far as it gave the wife the costs in the Court below. The wife, however, was not allowed the costs of appeal. (Quare.) THIS was an appeal against a decree of the Court of Session, pronounced in a suit instituted by the wife for separation and alimony. The summons set forth a marriage between the parties on the 8th of July, 1843. The appellant was a Scotchman, and his residence was at Lochgair House, Argyleshire; the respondent was an Irish lady, and their marriage took place at St. John's Church, at Paddington. The summons charged that the husband, "instead of behaving himself towards the pursuer with tenderness and humanity, conducted himself towards her in a cruel manner, so that her life had been rendered a burden to her, and might have been endangered if she had continued to live with him; that his whole conduct had been influenced by a desire to expel her from his house; that in particular he had never discharged the duties of the marriage-bed, or of a husband to a wife; and since about six weeks after the date of the celebration of the marriage, he ceased to hold any intercourse with her, did not speak to her, and never entered her apartment, but treated her in the most contemptuous and insolent manner, and did so openly in the presence of servants and others." The summons alleged that the appellant avoided his wife's society, and would only walk with and speak to his sister, and several other matters of the same sort, and went on to say, that "he has declared himself separated from his wife, and that he never will again return to her." It then set forth, that in consequence of this kind of treatment she quitted his house 13 House of Lords Cases, 308. |