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that the papers were the papers of the benchers at the time of the assault. That I shall leave to the jury, with this direction, that it depends upon whether the letter-book was the plaintiff's private and personal book or the book of the company; in which latter case I shall direct the jury to find the question in favour of the defendants, as I am of opinion that they would then have a lawful possession of the book for the purpose of the inquiry.

But then, in the event of that question being rightly determined in favour of the plaintiff, another question will arise, which appears to me to be of law, and which I propose to reserve; viz., whether, even assuming that the papers were the plaintiff's private and personal papers, they were not lawfully in the possession of the benchers. as a species of domestic tribunal (a), having a lawful jurisdiction to pursue a certain inquiry (although, no doubt, not having the compulsory powers of a regular Court of Justice), just as, in a Court of Justice, private papers, which have not been produced by a witness, and placed in the custody of the officer of the Court, are, pending the trial, in his lawful possession; whether or not, in fact, they were produced voluntarily or compulsorily (b). That question I shall reserve.

(a) Just as the visitatorial jurisdiction is not the less one recognized by law, even to the exclusion of Courts of Law and Equity (Whiston v. The Dean of Rochester, 7 Hare, 532), because it is a domestic forum.

the consent of both the parties to it,
and before any revocation of autho-
rity by either, capriciously and arbi-
trarily to withdraw it, pending the
inquiry; and 2ndly, whether, in the
case which this clearly was (and was
laid down to be) of a jurisdiction
not voluntary as regards the parties
to the inquiry itself, though with
no compulsory powers to as to third
parties, a third party having pro-
duced a material document can
thus capriciously withdraw it pend-
ing the inquiry. Upon this ques-
tion as it was reserved-the LORD
CHIEF JUSTICE of course had not

(b) This important question divides itself into two points; 1st, whether, even assuming that the case was one of a purely voluntary inquiry (like an arbitration at common law after a revocation of authority), a third party, producing a material document as a witness, has a right, while the inquiry is continuing, with

1862.

HUDSON

v.

SLADE and Others.

1862.

HUDSON

บ.

SLADE

and Others.

Chambers contended that the benchers only formed a private body, and were making only a friendly inquiry; but

COCKBURN, C. J., was clearly of a contrary opinion; that they were a tribunal, though a domestic tribunal.

At the close of the case,

COCKBURN, C. J., thus directed the jury:-The case on the part of the plaintiff divides itself into two heads. of complaint; one is the assault committed on the plaintiff, the other is as to the giving him into custody. These two branches of the case each stand on a different footing. As regards the first, it is admitted that the assault was committed; and it is admitted to have been done by the order of the Master Treasurer, given on behalf of the benchers they all concurred in it, and the four who are sued accept their liability and adopt the act, and admit that, unless legally justified, they are responsible for it. Now, the plea of justification states some things which

:

to direct the jury; but some obser-
vations which he made in his com-
ments on the general character of
the case had a strong and pertinent
application to this great question of
law; observations in which he dwelt
on the extreme injustice which
might be done to Mr. Seymour on
the one hand, or the profession and
the benchers on the other, by rea-
son of the withdrawal of the book
just when it began to become most
important for the interests of truth,
and the objects of the inquiry. If
as regards a mere ordinary licence
it may become in some cases per-
manently irrevocable by reason of
its having been acted upon, surely
a licence under such circumstances
may fairly be deemed temporarily
irrevocable, or at least not revocable
thou just cause, until the object

is attained for which it was given. And on this point, perhaps, the allegation in the plea as to the object with which the book was withdrawn, may have been material; vide ante, p. 394. The plaintiff, on the first occasion, clearly licensed the use of the book for the second. Added to this, there was the estoppel arising from the plaintiff's having, during the whole of one day's examination, allowed the defendants to suppose they were lawfully possessed of the book, and to act on that supposition. It might, perhaps, be hazarded as a proposition of law, that a man can never be allowed to act capriciously, so as to perpetrate an injustice and an injury upon a third party; vide Freeman v. Cooke, 2 Exch. 654.

1862.

HUDSON

v.

SLADE

are admitted, as that the Middle Temple is an ancient Society, and had a certain jurisdiction to inquire into the conduct of its members, and were engaged in a certain inquiry. Then the plea goes on to state that the plaintiff and Others. had submitted himself to be examined, and that it appeared upon such examination that he had himself been connected with the gold mining company, and that questions arose upon certain papers of the benchers which were produced by them for the purposes of the inquiry.

The

Now, here a question arises whether they were the " papers of the benchers," i. e., their property at the time, and of which they had lawful possession. Now, certainly, they had a possession; but possession would not necessarily give them the property in the papers. Primâ facie, indeed, it would; for possession is sufficient as against a wrongdoer. And if Mr. Hudson, without himself being entitled to the papers, took them without any right or title from the possession of the benchers, then, as against him, they were theirs. But if they were his papers, and he was entitled to the possession, and his possession would be good against them, they would be wrongdoers. This raises the question whether he was a wrongdoer. benchers had received the papers from Mr. Brown, who was solicitor of this defunct company. He had become its solicitor at the time when it was on the eve of expiring, and he in the course of his inquiry discovered that all the books and papers of the company had vanished, except this letter-book. Thus he had a legitimate custody of the papers, and handed them over to the benchers, who were managers of the inquiry, and who were bound to hand them back to him. They had thus a special property in them unless the plaintiff made out that he was entitled to them. This brings us back to the question whether they were his or not (a). If they were not, then, for the pur(a) The question as to the inte- appears, from all the authorities on rest or property in a book or paper the subject, to depend rather on

1862.

HUDSON

v.

SLADE and Others.

poses of this trial, they were the papers of the benchers. Now, if the evidence of the plaintiff be correct, the original

the nature of its contents than on the original property in the book or paper when in blank; and if a book or paper is delivered by the owner to another for a special purpose, the bailee has a property in it not only as against all the world, but even as against the bailor, the owner, until that purpose is answered. Both points appear virtually decided in Roberts v. Wyatt, 2 Taunt. 275. In a subsequent case, where it was held that a calico printer was entitled, after having discharged his head colorman, to the book in which the latter, as his servant, had entered the processes for mixing colors, though many of the processes were of the servant's own invention. The true ground of the decision (see CHAMBRE, J.) was, not that the master had furnished the book, but that the processes described in it were chiefly the master's (Makepeace v. Jackson, 4 Taunt. 770); and that case also illustrates another portion of the same proposition, viz., that the property depends on the bulk of the contents, and not on the nature of some small portion thereof. The value of a document depends entirely on its contents, and the possible legal value; and hence trover lies for an agreement or other document, and the damages are measured by the nature of the contents; Scott v. Jones, 4 Taunt. 865; M'Leod v. M'Ghie, 2 Sc. N. R. 604. So as to letters, see Miller v. Taylor, 4 Burr. 2356. So the property depends on the contents, and is in the person for and on ac

count of whom or for whose interest the contents were written. Thus it is that title deeds belong to the owner of the estate; Phillips v. Robinson, 4 Bing. 106; but on a contract going off, the deeds cancelled are the purchaser's; Esdaile v. Oxenham, 3 B. & C. 225; see also Hall v. Ball, 3 Sc. N. R. 577. On the same principle the property in a policy is in the assured, though made out on paper belonging to the broker or the company; Harding v. Carter, 1 Park, Ins. 4. And so much does property in a document depend upon the nature of the contents, that if it be concocted for a fraudulent purpose, and be not what it purports to be, it cannot be recovered back by the owner; De Witz v. Hendricks, 2 Bing. 314. And it may be added, that, assuming the property to be in one person, the obtaining it by a false pretence would not alter the property; Noble v. Adams, 7 Taunt. 59; nor would a mere act of trespass, which, until acquiesced in, does not even give a lawful possession; Brown v. Dawson, 11 Ad. & E. 625; Gillard v. Brittain, M. & W. 575. And it has been held, on the principle above laid down, that land agents, paid by commission, must deliver up maps, plans and other documents relating to the estates, made or collected by them in the course of their employment, even though it is alleged that they were made for their own private use, and it is the fact that they were made on paper of their own; Lady Beresford v. Driver, 16

property in the paper-book, as it was first made, was in him. But, even if he be correct as to that, did he not, after having had the book made up, so far dedicate it to the purposes of the company as to make it theirs? We must look at it and see if it was not really the letter-book of the company; and if you are of opinion that it was, then he was no more entitled to it than any other director; and, as it was in the hands of the solicitor of the company, and Mr. Seymour, who had been its chairman at the time the letters were copied into it, desired that it should remain with the benchers, it could not be said to be the plaintiff's as against them, they having received it from the solicitor, and Mr. Seymour having desired them to retain it.

Now, I have looked carefully over the letters, seventeen in number, and out of those seventeen only six are copies of letters to Mr. Hudson. The others are copies of letters to or from the secretary, or the engineer or manager of the company, or on behalf of Mr. Seymour, the chairman. And you will observe throughout, even in the few letters by the plaintiff, the use of the word "we." Thus, the first letter is from the plaintiff to the manager in America, and refers throughout to the business of the company, it is for you (a) to exercise your judgment upon this,—whether, though this in a certain sense is a private letter, yet, as being written by a director to the manager

Beav. 134. On this principle the book in the present case would be the property of the company, and were it at the office, was not more in the possession of one director than of another; Penny v. Goode, 1 Drewry, 474; so that it was not more in the plaintiff's possession than in Mr. Seymour's, and so was lawfully in the possession of the benchers. And further, it continued in their possession, in law, up to and at the time of the assault

and attempt to retake it, because it
had been obtained in such a man-
ner as not to revest the possession
lawfully in the plaintiff or deprive
them of it, and his actual manual
possession had not for a moment
been acquiesced in, so that the case
did not in that respect resemble
Blades v. Higgs, 30 L. J., C. P. 347;
and even assuming that case not to
be supportable, in the present case
the benchers would be justified.
(a) See 27 L. J., Exch. 34.

1862.

HUDSON

V.

SLADE

and Others.

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