upon it, with reference to the peculiar construction of the vessel. The question was, would a prudent shipowner, in 1859, when this ship was built and insured, have sent the ship to sea as she then was, if uninsured? The point was, what was right and reasonable when the vessel was built and sent to sea, and whether or not she was, on the one hand, duly secured, and, on the other hand, not overloaded, with reference to her peculiar construction. Verdict for the plaintiff. 1863. CLAPHAM v. LANGTON. Coram Wightman, J. COWAN v. LASCELLES. London Sittings. Easter Term. DECLARATION, that the plaintiff had been in com- In an action for a false [and fraudulent] of authority, case having munication with the defendant as to the formation of a joint stock company for the cultivation of land in India, representation and that the defendant falsely and fraudulently represented the plaintiff's to the plaintiff that he had authority from one G. Cannon to been opened offer a certain estate of his in India for sale; on the faith of and attempted to be proved, which representation the plaintiff became a promoter of a as one of company for the cultivation of such estate, and incurred ful misrepredivers expenses; whereas in truth, as the defendant well sentation, but turning out to knew, he had not such authority: whereby and by reason be one of mere that the said estate could not be obtained, the said company failed, and the plaintiff lost the monies he had laid out and expended, &c. Plea: Not guilty. Hawkins and Inderwick for the plaintiff. Edward James and Prentice for the defendant. The defendant was chairman of an India Land Company, for the purchase and sale of land in India, and one Sowerby was managing director. In July, 1862, he had communications with the plaintiff as to the formation of a company for the cultivation of coffee in the Neilgherry district of India, and having re fraud and wil mistake, the plaintiff was o not allowed to fraud. 1863. COWAN v. LASCELLES. ceived through his son in India a letter which had been written to the son by a Mr. Glasson, offering for sale an estate of his in that district, he showed it to the plaintiff and the other promoters of the new company (of whom the defendant himself was one), stating that he had authority from Mr. Cannon to sell his estate. The signature to the letter was read by the plaintiff and all who saw it, not as Glasson, but G. Cannon; and there was, in point of fact, an estate of a Mr. Cannon in the same district in India, known for the good character of the coffee produced thereon. The defendant had never seen or heard from Cannon, nor did he know Glasson, and he wrote a reply to India addressed to Cannon. All persons having supposed that the signature was that of Cannon, a company was forthwith provisionally registered for the cultivation of coffee on land in the Neilgherry district, especially the estate of Cannon, which was particularly mentioned in the prospectus. The defendant, as well as the plaintiff, was a promoter of this company, and his name appeared on the prospectus with that of the plaintiff as directors. On the 8th of August, the plaintiff, as managing director of the new company, entered into an agreement with Sowerby, as managing director of the land company, of which the defendant was chairman, for the purchase of the estate in question, but if there should be no allotment of shares in the new company before the 1st of October, the agreement was to be void. No broker could be found to take up the company, and though the Articles of Association were registered on the 1st of September, it was never advertised, and no shares were allotted, except those which were subscribed for provisionally by the directors. On the 29th of September, the defendant having heard from India that the letter his son had sent to him was from Glasson, not Cannon, informed the plaintiff and the other promoters of the mistake, but as the 1st of October was just arrived, the agreement fell to the ground, and the company failed. Hawkins opened, that it had failed by reason of the inability to get Cannon's estate, in which the company appeared to have failed; in fact before the mistake was discovered, and when the original letter was produced and put in, the officer read it as the defendant had done, as if signed "G. Cannon:" and WIGHTMAN, J., observed, that though now the name of Glasson was suggested, the signature rather looked like that than like G. Cannon, yet it was so hastily written that, in his opinion, it might easily have been mistaken for the latter name. What, however, could it matter whether the estate offered was Cannon's or Glasson's; if, in fact, the defendant had the authority of the owner (as it appeared that he had) to offer it for sale? Hawkins said the prospectus of the company had put forward very prominently that the Cannon estate was to be cultivated, and that was the best coffee-producing estate. The prospectus was put in, and mentioned both Cannon's estate and another, and did not mention the former as remarkable for its coffee, but evidence was given that, in point of fact, it was known to be so. It was proved that the defendant had said that he had authority from Cannon to sell his estate, but it appeared that he always referred to the letter as his authority; and though the letter mentioned the name and locality of the estate it referred to, it did not appear that the defendant knew the exact name or locality of Cannon's estate. WIGHTMAN, J., said, the question would be, in effect, whether the defendant had really supposed the letter to be from G. Cannon. Hawkins insisted that the defendant had positively stated that he had authority from Cannon; he was liable, not having had such authority, whether or not he was guilty of wilful misrepresentation, and he cited Collen v. Wright (a). (a) 27 L. J., Q. B. 215. The doctrine of that case, in which 1863. COWAN บ. LASCELLES. 1863. COWAN v. LASCELLES. WIGHTMAN, J., said, the declaration here charged a false and fraudulent representation. Hawkins submitted that he could support any cause of action independent of the fraud, discarding the allegation of fraud as surplusage (a); but WIGHTMAN, J., said this could not be allowed, as the whole case had been rested COCKBURN, C. J., dissented, is not to be extended; MARTIN, B., Robson v. Turnbull, 1 Fost. & Finl. 365. upon fraud. (a) So in Swinfen v. Lord Chelmsford, 1 Fost. & Finl. 633, POLLOCK, C. B., refused to allow the plaintiff's counsel, after the case had closed, to go for a verdict on the ground merely of a wilful and unauthorized act, when the declaration charged a fraudulent act. And though a rule was granted on the question, inter alia, whether the action would lie without fraud, it was discharged. POLLOCK, C. B., indeed, said he would not shut out the plaintiff from arguing that question by reason of the form of the declaration, but then that was because the declaration, even omitting the word "fraudulently," would still charge an act wilfully wrongful and fraudulent in law, viz., making a compromise, knowing it to be prohibited by the client. The C. L. P. Act allows of any amendment necessary for the purpose of determining [not the real question, but] "the real question in controversy between the parties." (C. L. P. Act, 1852, s. 225, Finlason's ed., p. 160.) And that has been held to mean the question made, and known to be the matter of controversy before, or in, the action prior to the trial; not a question for the first time started there in order to evade a failure of proof on the real question in controversy. That would be to allow amendment, not to determine, but to evade and avoid determining, the real question in controversy between the parties; Wilkins v. Reed, 14 C. B. 145. And though it is admissible to make an amendment to raise a different cause of action, or defence, if it appears that it is not new to the parties, but was the real question in controversy; Ritchie v. Van Selder, 9 Exch. 762; the object of the enactment has been held to be the mere correction of mistake, not to enable a party to try his claim on one ground of action or defence, and then to try another and totally different one, and the error was not by mistake, but design; Wickens v. Steel, 26 L. J., C. P. 24. This appears, à fortiori, to be a case founded upon fraud. And in Chancery, when fraud is alleged, a plaintiff or defendant will not be permitted to shift or change the ground, and thus escape payment of costs. Hawkins applied to amend the declaration by striking out the allegation of fraud, but WIGHTMAN. J., said that for the same reason he could not allow an amendment. The defendant was called, and, at the close of the evidence, Hawkins urged that the defendant must have known he had no authority to sell the estate which was Cannon's. WIGHTMAN, J., put it to the jury, whether they were satisfied that at the time of the representation the defendant really believed that he had that authority; and next, whether they were also satisfied that the company failed by reason of the misrepresentation, and through not being able to obtain the estate. Upon the latter point the learned Judge said he did not see how the action could be sustained, seeing that the contract was with Sowerby, for the land company, not with the defendant. Verdict for the defendant. 1863. COWAN บ. LASCELLES. Court of Common Pleas, Westminster, coram Erle, C. J. IRWIN v. GREY. THIS was an action against the Secretary of State for the Home Department, for not submitting to her Majesty a Petition of Right, presented by the plaintiff under Bovill's Petition of Right Act, whereby he was prevented from having the same prosecuted, and had been in various ways injured and damnified. The plaintiff appeared in person. the Sovereign Petition of Right presented under the act, it appearing that Sir W. Atherton, Att.-Gen., and T. Jones for the de- the Secretary fendant. of State had submitted the petition to her Majesty, and given her Majesty certain advice upon it, which was, that her fiat should not be granted: Held, that this put an end to the case, and that no action lay. |