No. 519-VOL. X.

PRICE 18.

The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity:

LONDON, DECEMBER 19, 1846.

tions and entries by deceased persons; having previously (p. 205, note 1) intimated that the case of THERE are several cases in our reports relative to the Doe v. Pettett appeared to belong to that class. "On admissibility in evidence of the declarations of persons several cases," he says, "the declarations have been in possession of land explanatory of the character of made by tenants, where they have stated that they paid their possession, the principle of which is sometimes, as rent to particular persons. In these cases, the declarawe have had occasion to observe, misapprehended, and tions have been considered as made against interest, intheir application supposed to be less extensive than it asmuch as possession is primâ facie evidence of a seisin really is. Of these, the first in point of time is Peace-in fee, and therefore the declaration of the possessor that able v. Watson, (4 Taunt. 16, 17), where it was laid he is tenant to another makes against his interest." down by Mansfield, C. J., that, as possession is primâ Now, declarations of deceased persons are admissible facie evidence of seisin in fee-simple, the declaration of where the persons are to be presumed conusant of the the possessor that he is tenant to another makes most subject-matter of the declarations, and where the destrongly against his own interest, and, consequently, clarations apparently operate against their own interest. is admissible. Next, in Doe v. Pettett, (5 B. & Ald. It is presumed that such declarations are entitled to 223), it was held, that the declarations of a widow in credit, because the regard which men pay to their own possession of premises, that she held them for her life, interests may safely be considered as a sufficient guaand that after her death they would go to the heirs of her rantee against their prejudicing themselves by any husband, were admissible evidence to negative the fact erroneous statement; and the assumed tendency of the of her having had twenty years' adverse possession. The declarations precludes the possibility of any fraudulent widow was dead; but that fact is not alluded to in the one. (Phillips & Amos, 8th ed., p. 308; Greenleaf on judgment, the evidence being treated as admissible to ex- Evid., sect. 148; Sussex Peerage case, 11 Cl. & Fin. 85). plain the nature of her possession. Further, in Carne v. And being admitted simply on the ground of their Nicholl, (1 Bing. N. C. 430), it was held, that a witness being against the interest of the party making them, might be asked as to expressions which had fallen from and not being receivable until after his death, it is ima deceased occupier of the premises in question, touch- material whether or not they were made in the performing the party under whom he held them. And in ance of a duty, in the course of business, or accompanyChambers v. Bernasconi, (1 C. & J. 457), Lord Lynd- ing an act done. These circumstances are frequently, hurst says, "Possession is primà facie evidence of own- indeed, found in combination with the fact of the deership, and a tenant's declaration is evidence as cutting claration or entry (which is but a written declaration) down the fee." Now, in the first three of the above- being against interest, but they are none of them essenquoted cases, the person whose declarations were offered tial to its admissibility on the latter ground; and inin evidence was dead, which circumstance appears to stances exist of declarations of deceased persons being have caused the misapprehension as to the ground of admitted simply on the ground of their being against admitting them. Mr. Phillips, in his Book on Evi- the interest of the parties making them. This was so dence, (vol. 1, p. 316), classes them amongst the ex-in Higham v. Ridgway, (10 East, 109), the leading case ceptions to hearsay evidence afforded by declara- on the subject, and in many others since decided upon VOL. X.

W W

"Where a declaration accompanies an act, it is frequently admissible as part of the act itself. Such declarations, it will be seen, are more frequently used as collateral or indirect evi-by their labour they had contributed towards defraydence, from which some other fact is to be inferred, than as direct evidence of a fact, and as such will be afterwards considered. Suffice it to observe, for the present, that declarations are usually admissible where the fact which they accompany is material and admissible, and where the nature and quality of the act are also material; for, in such instances, a declaration accompanying the act may either be regarded as part of the act itself, or as the most proximate and satisfactory evidence for explaining and illustrating the fact." (Starkie on Evidence, vol. 1, p. 34). "To this head also the admissibility of declarations by tenants has sometimes been referred, and it seems that such declarations are clearly

in which one was agent for the other, for the purposes of all preliminary proceedings necessary to enable them 'to obtain an act: or that the fact of their being co-promoters of the scheme, coupled with the fact that no

author points out the advantages which this would have over a similar asylum in England, as we think the whole work deserves to be read, and its length is not such as to deter any one from doing so. Suffice it to say, that, in conjunction with a better system of classi-money was supplied for the expenses of it, was evidence fication of untried offenders, so as to prevent the juve- to go to the jury, that each authorised the other to nile from being corrupted by association with the 'contract for those purposes, on his behalf and that of adult, it offers many advantages over the present sys- the other promoters-it was insisted that where there tem, (Parkhurst included), and seems to tend more 'was no other evidence than the mere fact of the detowards the attainment of the true objects of punish-fendant having already agreed to be a provisional comment. The following concluding passage of the work may be deservedly quoted, explaining, as it does, the sentiments and design of its author:

mittee-man, there was a sufficient case, or at least a case for the consideration of the jury to prove an au'thority given by the defendant to every other committee-man to give the order, out of which the contract arose, by himself, or by the solicitor or secretary or an authority to such solicitor or secretary to give it on behalf of the committee.

"I have now reviewed all the offences of which our 'law takes cognisance. In many of the punishments 'alterations have been suggested, which are put for'ward in the belief that they will bear the two great "tests which ought to be applied to all provisions of this 'nature, i. e. that while they would lead to the preventer of law from the mere fact of the defendant agreeing tion of crime, they would at the same time reform the 'criminal.

"We think that no such consequence follows as mat

to be a provisional committee-man-such an agree'ment amounts to no more than a promise that he would "Hitherto, with very rare exceptions, no one has act with other persons appointed or to be appointed for 'paid any attention to the general condition of offend- the purpose of carrying some particular scheme into 'ers against the laws. Some great crime, perhaps, con- effect: the term "committee" means an individual, contrates for a time a morbid interest upon the indi- or a body to which others have committed or delegated 'vidual who has committed it; but this is the result of a particular duty, or who have taken on themselves 'mere curiosity for the most part, which is soon ex- to perform it in the expectation of their acts being con'hausted, and no beneficial result ensues: the subject 'firmed by the body they profess to represent or act for 'is, in itself, a distasteful one; no man likes to contem--an agreement to be a committee-man is an agreement 'plate the degradation of his species, and the malefactor to become one of that body. The schemes may be va'is, by general consent, put out of remembrance. Itrious-to establish an hospital, or place of emigration, 'is only thus that the system of wholesale transporta- to which persons are to subscribe merely for charitable

tion, with all its moral evils, could have gone on so motives; or partly from these motives, partly from 'long without an attempt at any amendment: year others; or a proprietary school, or literary institution, ' after year thousands of wretches were removed from ' or assembly-room in which they are to be beneficially 'England to perpetrate the same or worse crimes else-interested as shareholders-or to obtain an act for a where, and the public was satisfied. The Archbishop of Dublin at last laid open its horrors before the 'Lords, many of whom acknowledged that they were 'unaware till then of what had been the state of things, 'and to his efforts must be attributed the present improvement in the system. To a certain degree, there'fore, he has been successful, but more-much more'remains to be done."

[Sweet, 1846.]

bridge, drainage, railroad or canal: but whatever the objects may be it seems to us to make little or no dif'ference in the position of the person agreeing to act as a committee-man, if the object of some most or all, is gain to themselves individually-the legal consequence is the same, as if the object of the parties were the most 'charitable and benevolent; though the result may be 'practically very different, in exciting an improper prejudice in the minds of a jury; when the evidence is laid before them for their consideration. Such an intended A Consideration of the Judgment of the Court of Exassociation constitutes no agreement to share in profit chequer, in Reynell v. Lewis and Wyld v. Hopkins, ' or loss-which is the characteristic of a partnership: it &c. By A BARRISTER of the Middle Temple. 'would be absurd to suppose that such a relation could 'be meant to be created by any of those who consented to Towards the settlement of the law affecting the lia-act-could it be imagined that a person would agree to bility of persons promoting schemes for companies, one 'be a partner not only with those who were then named rule is laid down in the cases above referred to, viz. committee-men but any that should afterwards be that the mere relation of co-provisional committee-men named by themselves, or by the projector of the comdoes not constitute a partnership or quasi partnershippany, and could those who subsequently agreed to bebetween such persons; and that therefore, to make one come members, suppose that those previously named of such persons liable for the contracts entered into by could ever have so intended? The truth is the agreeanother with third persons, there must be somethingment to become a provisional committee-man means more-acts or circumstances which shew agency, ex- 'neither more nor less, than what the words express: clusive of the relation of co-provisional committee-viz. an agreement to act on the provisional committee, in carrying into effect the preliminary arrangements It is observed upon this doctrine by the writer of the for petitioning Parliament for a bill and so to propamphlet now before us, that the omission, in the judg-mote the scheme. If afterwards the provisional comment in Reynell v. Lewis and Wyld v. Hopkins, of all reference to the Act for the Registration of Joint-stock Companies, 7 & 8 Vict. c. 110, is, to say the least, remarkable; and undoubtedly it is remarkable, that, in a judgment upon cases involving proceedings necessarily affected by that act, no notice of its provisions should have occurred.

men.

"It is contended," (says the court, in Wyld v. Hopkins, see 10 Jur. p. 973)," (and that formed the chief part of Mr. Martin's argument and a part of that of others) that the relation of co-provisional committeemen constituted an association or a quasi co-partnership,

mittee-man does act, he is responsible for his acts." Whether this doctrine will be acquiesced in,-whether it is not inconsistent, if not with the natural relation between co-provisional committee-men, at any rate with that parliamentary relation which the language of the 7 & 8 Vict. c. 110, establishes between them, we venture humbly to express a doubt; and that we are not singular in our doubt, appears by the publication of the pamphlet above referred to, in which the author suggests some reasons why the doctrine of Wyld v. Hopkins should not be thought conclusive. It can scarcely be disputed, that provisional committee-men

are promoters of an undertaking within the meaning of say, that persons forming members of a body who the 7 & 8 Vict. c. 110. The words of the act are: "The put their names in a return which they know is to be expression 'promoter or promoters of a company' to open for inspection, can do so with any other view, or apply to every person acting, by whatever name, in the can at any rate pretend that they do not view as a forming and establishing of a company at any period probable consequence, that their names will be looked prior to the company obtaining a certificate of com- to and relied upon by those who deal with the body of plete registration." The court, in Wyld v. Hopkins, which they constitute individual parts. Documents distinguishes between a person merely agreeing to become inrolled, and which any person has a right to inspect a provisional committee-man, and acting as a commit- on payment of a fee, are, we believe, considered as tee-man. But, whatever may be the abstract correct-published in point of law; as, for instance, an invenness of that distinction, it is submitted that it does not tion described in a specification duly inrolled, is pubaffect the question, whether a person agreeing to become lished, so as to avoid a patent afterwards taken for it; a committee-man, is or is not a promoter within the not because it is the subject of the patent to which meaning of the act. For though the act uses the word the particular specification refers, (for it may happen "acting," the expression is not acting in committee or that it is not included in the patent), but because any in any other particular way, but acting in the forming and person may inspect the specification; and therefore the establishing a company. Now, as agreeing to become a public has notice of its contents. We apprehend, then, member of a provisional committee is an act of some that, by force of the provisional registration, the prosort, and as it seems to us impossible to say that the moters of a company do hold out to the public, as much formation of a committee is not a step in the forma- as if they circulated a specific prospectus, the facts tion of the company, it follows, that he who agrees to contained in the return, that is, at least, that they are be a member of a provisional committee, does act in promoters. Next comes the question, whether, as proforming and establishing a company, and is therefore moters, they are intended by the 7 & 8 Vict. c. 110 to a promoter of the company. be partners, or at least to be quasi partners, for the purpose of being jointly liable; for we fully subscribe to what is said by the court in Wyld v. Hopkins, that, “if the prospectus state merely the names of the provisional committee, and nothing more, and no right can be derived from the context, that circumstance does not alter the liability of the defendant. If not responsible as being one of that committee in fact, he cannot become so by the representation of the fact." But the question, not, as it would seem, adverted to by the court in this important judgment, is, whether, by the fact of being a provisional committee-man, viz. a promoter, a person is not, by force of the 7 & 8 Vict. c. 110, (whatever he might be dehors that act), a partner with his co-provisional committee-men? And we shall refer to a clause of the statute, the language of which seems to us to be scarcely intelligible, unless the Legislature intended to treat the promoters of a company as partners, or, at least, as jointly liable. We do not lay much stress on the circumstance, that the promoters are ge nerally spoken of in the plural-not every promoter severally, but the promoters jointly; though, perhaps, even that circumstance is not without its weight. But when we come to the 23rd clause of the act, which defines the powers and privileges of companies on provisional registration, we find it enacted, that it shall be lawful for the promoters, among other things, to open subscription lists, to allot shares, to receive deposits, to perform such other acts only as are necessary for constituting the company, or for obtaining letters-patent, or a charter, or an act of Parliament; and, with regard to railway undertakings, and the like, to enter into contracts for services in making surveys, and performing all other acts necessary for obtaining an act of incorporation, &c.

Next, let us see what is the effect of provisional registration with reference to what is thereby held out to the public. It seems to be assumed by the court, in Wyld v. Hopkins, that the effect of a person merely constituting himself a provisional committee-man, is different from that of his holding himself out as such in terms to the public. "But," says the court, in the passage immediately following the one already quoted, "There are other cases, in which the question does not assume so simple a form, ' and where there is evidence that the defendant has not 'only consented to be a provisional committee-man, but has authorised his name to be inserted in a prospectus, 'not generally, but a particular prospectus, in which, in some cases, certain persons are described as the acting 'committee; in others, solicitors are named, or en'gineers, or a secretary. If such a prospectus has been so publicly circulated, with the defendant's consent, that the jury would presume the plaintiff knew of it, or if the plaintiff has had it shewn to him, at or before the time of making the contract, and has in either case acted upon it, the question is, what inference ought a 'reasonable man to draw from the contents of that paper?"

The court, therefore, it would seem, considered, that on proof of the specific circulation of a specific prospectus, it might be left to the jury to presume, and that a jury might presume, that the plaintiff had notice of the facts appearing by such prospectus. Now, let us consider what is the effect, for the purpose of publication, of provisional registration, and its consequences.

The return to be made under the 4th clause of the act, before publication, by any prospectus or otherwise, of the intention to form a company, is of the names of the promoters, with their occupations, places of business, and residences; and after or before such publication of "the names of the members of the committee 'or other body acting in the formation of the company, 'together with a written consent on the part of every 'such member or promoter to become such; and also a written agreement, on the part of such member or promoter, entered into with some one or more persons as trustees for the said company, to take one or more shares ' in the proposed undertaking, which must be signed by the member or promoter whose agreement it purports to be." And, by the 18th clause, all these returns are open to public inspection. The effect of this is, we apprehend, both in point of law and in point of common sense, that all persons dealing with a provisional committee have notice of the constitution of that committee. No other object scarcely of the right of inspection can be conceived; and it seems strange to

Now, is it intended by this section that each promoter shall be at liberty to do the several things mentioned on his own sole responsibility; or is it intended that the promoters, as a body, may do them? The former can hardly be the intention; for, to enable each promoter respectively to render himself liable, it would not have been necessary for the statute to have spoken at all. He might have done so in the absence of any enactment; and so might all the promoters together, if, on every occasion of doing any act, they all concurred in the act. The enactment of the 23rd section is therefore surplusage, unless it meant to give to the promoters as a body some other characters and some other powers than those of a set of individuals capable each separately of binding himself; and, unless it meant to give to them the character of persons jointly liable, and capable se verally of binding the body, it was entirely unneces