was then too late, and possibly the means of the different parties might have been altered. Again the plaintiff has a remedy against Goss. Suppose Goss could pay 100., is the plaintiff to have it and this action too? What remedy has the defendant if he is liable? He cannot tender him a transfer and the certificates of the shares, nor, as I see, make any valid claim on him. Further, have Sir S. Sprye, Goss and Foster & Co. done wrong? If so, an action would lie against them by the plaintiff, the person injured by that wrong; if not, why should any action lie against the defendant, who would thereby be made liable for the acts of others, which were not wrong in those others? I am of opinion that the defendant is entitled to judgment. If I am wrong it is on a question of fact, viz., what is the bargain made in such cases, what is the usage? This is no question of law, but of fact.

KELLY, C.B.-This claim to recover the calls made in respect of a number of shares in Overend, Gurney & Co., sold by the plaintiff to the defendant, has been abandoned except as to ten shares, and the circumstances of the case as to these appear to be within a very narrow compass. The plaintiff, through his broker, sold these ten shares to the defendant, a jobber, for the account day; and the day before the account day, which is called the name day, the defendant gave in the name of one Goss as the ultimate purchaser. The plaintiff made no objection to Goss, and in due time executed a transfer, and delivered it to him or his broker through his own broker, and Goss, who had given authority to have his name delivered in as the ultimate purchaser, accepted the transfer executed by the plaintiff, who had in the mean time received through his own broker the price of the shares. It appeared that before Goss became entitled to these shares they had been purchased by Sir Samuel Sprye, who upon the failure of Overend, Gurney & Co., agreed with Goss that he should become the purchaser or transferee of the shares, not indeed for any price to be paid by him, but upon receiving the sum of 47. 10s. as the condition upon which he was to accept the shares; and further, it is admitted that Goss was an insolvent, or at least an irresponsible man. The defence is, that by the usage of NEW SERIES, 38.—EXCHEQ.

the Stock Exchange, upon the basis of which both the sale and purchase of these shares is admitted to have taken place, the jobber, who is the original purchaser of shares, upon giving in the name of another as the ultimate purchaser, if the name be accepted without objection and has been given in with the authority of the nominee, and the transfer to the nominee has been executed by the seller and accepted by the nominee, and the price has been paid to the seller, has performed his part of the contract and is discharged. For this, the case of Grissell v. Bristowe (1) is an authority directly in point, and I am of opinion that on this ground the defendant is entitled to the judgment of the Court. It was argued for the plaintiff, first, that the jobber is not discharged by the mere giving in of a name unless it is the name of one to whom no reasonable objection can be made; in other words, that the jobber warrants that the nominee shall be open to no reasonable objection; and some passages in the judgment of Cockburn, C.J. in Grissell v. Bristowe (1) are relied upon to support this proposition. But the language of the Lord Chief Justice upon this point is misunderstood. It is true that the nominee must be a person open to no reasonable objection, but this means only that, by the usage of the Stock Exchange the seller has the right to object to him, and has ten days from the account day for that purpose. If an objection be made, it is referred to the Committee of the Stock Exchange, and admitted or overruled according to the truth and justice of the case; and if admitted, the jobber is bound to find another nominee free from objection, or to perform the contract himself. But if, as here, the nominee be accepted without objection, and, as before observed, the seller transfers to him and he accepts the transfer, the jobber has performed his contract, which was not absolutely to accept the shares as purchaser, but only to accept them and become the purchaser himself, or to name another who is unobjected to or turns out to be free from objection, and who, having authorized the use of his name, becomes the ultimate purchaser; and the jobber is then discharged. It was further objected, on behalf of the plainti, that the transfer of the purchase from Sir Samuel Sprye to Goss

T

was fraudulent and void, and that Goss was therefore not a real and bona fide nominee, either by law or according to the usage of the Stock Exchange. But this is not so. Any holder of shares in a joint-stock company may lawfully see and transfer them, and cease to be the proprietor of them, and vest the property in them in the vendee, with or without consideration, or even, as in this case, paying a sum of money to the vendee to accept them, although the vendee be irresponsible or insolvent; and if the name of an insolvent who has thus become the owner of the shares be given in by the jobber as the ultimate purchaser, the seller, according to the usage, may object to him if he thinks fit, and, as already remarked, has ten days from the account day for that purpose. But if he fails to do so and accepts the nominee without inquiry, he has only himself to blame, and he is bound by the usage to recognize him, and him alone, as the purchaser. Besides, if there were any fraud in this part of the transaction, which there was not, it was not known either to the defendant or the brokers or the purchaser's jobber, or, indeed to any of the other parties interested in or connectel with this contract except Sir Samuel Sprye and Goss himself, and therefore could not affect the rights and liabilities of the one or of the other. Under these circumstances, the plaintiff having accepted Goss as the ultimate purchaser, and having actually executed to him a transfer of the shares, he has no longer the power to transfer them to the defendant, the original purchaser, who, having performed his part of the contract, has exonerated himself of all liability to the plaintiff, and is entitled to the judgment of the Court.

Judgment for the defendant.

Attorneys Freshfields, for plaintiff; J. & M. Pontifex, for defendant.

surrounding circumstances are to be considered by the Judge at the trial in determining whether the words used are so much too violent for the occasion as to rebut the presumption of the absence of malice arising from the privilege of the occasion; and if from surrounding circumstances it appears that the words are capable of two constructions, one of which is compatible with the absence of malice, then the presumption of the absence of malice which existed in the first instance from the privilege of the occasion should be allowed to prevail throughout.

This was a bill of exceptions to the ruling of Martin, B. in an action of libel, tried during the Middlesex Sessions after Trinity Term, 1868.

The defendant pleaded not guilty, and also a justification.

From the evidence of the plaintiff, who was the only witness examined at the trial, the following facts appeared. The defendant was a creditor of a firm, in which the plaintiff and one Briggs were partners. In 1866, the firm being in difficulties, a deed of inspectorship was prepared, which the plaintiff at first agreed to, but which he eventually refused to exccute after it had actually received the assent of the requisite majority of the creditors. On the 13th of December, 1866, the plaintiff, "seeing," as he said, "that Briggs was helping himself, took away from the cash box of the firm a parcel of bills of exchange, amounting to 1,264, telling the cashier of the firm to let Briggs know what he had done." On the 30th of March, 1867, the plaintiff was arrested at the suit of a firm of which the defendant was a member, and he was subsequently made a bankrupt. Messrs. Collier & Co., who were creditors of the firm of Spill & Briggs, having afterwards threatened Briggs with hostile proceedings, the defendant, on the 12th of July, 1867, wrote them a letter, of which the following is an extract containing the libel complained of:

"To Messrs. Collier & Co.

"Gentlemen,-I think it right to inform you that Mr. Briggs has consulted Mr. Spill's assignees and myself as to certain letters which you have addressed to him. The proceedings which Mr. Briggs has been advised to take are quite in accordance with our view; and although I have no

right and no wish to dictate to you any particular line of conduct, I cannot help saying that your proceedings entirely contradict the spirit of your letters, in which you profess to act only for the benefit of the general body of creditors. I may say that the conduct of Mr. Spill has been most disgraceful and dishonest, and the result has been to diminish most materially the available assets of the estate. I think that you ought to have satisfied yourselves that the statements made by Mr. Spill's solicitors were really in accordance with the facts, before taking a course which will be in opposition to the wishes of the creditors, and also will still further diminish the amount available for distribution, and will greatly delay the payment of another dividend."

The plaintiff was not cross-examined; and Martin, B. ruled that there was no evidence to go to the jury in support of the case, and directed a verdict for the defendant. A bill of exceptions was thereupon tendered on behalf of the plaintiff.

Huddleston (J. O. Griffits with him), for the plaintiff. There was evidence on which the jury ought to have been asked whether there was malice or not. Though the occasion of writing the letter may have been privileged, the jury were the proper judges whether the communication itself, imputing "disgraceful and dishonest conduct" to the plaintiff was warranted by the occasion. The jury were the proper judges as to whether the expressions used were malicious or not. Besides, the verdict for the defendant implies a finding by the jury that the plea of justification was proved.

-[He cited Toogood v. Spyring (1), Wright v. Woodgate (2), Gilpin v. Fowler (3), Cook v. Wildes (4) and Jackson v. Hopperton (5).]

C. P. Butt (W. S. Ollivant with him), for the defendant.-It is for the Judge to decide whether the expressions used are so excessive as necessarily to suggest the implication of malice, and for this purpose he must consider all the surrounding circumstances disclosed by the evidence. Here,

on the plaintiff's own account of the abstraction of the bills, the expressions used in the letter amount to no more than a fair comment on a transaction so suspicious in its character. If the Judge is not to exercise such a discretion as was exercised in this case, he must always leave the question of malice to the jury when the defence of privilege is set up-[He cited Fryer v. Kinnersley (6), Cowles v. Potts (7), per Blackburn, J., and Caulfield v. Whitworth (8), per Bovill, C.J.]

COCKBURN, C.J. delivered the judgment of the Court (9).-Upon the whole, we are of opinion that Martin, B. was right in directing a verdict for the defendant in this case. We are all agreed that the proposition contended for in the first instance on behalf of the plaintiff is right, and that it may well be that the language used in a libel, published upon an occasion otherwise privileged, may be so much too strong and too violent, that-reference being had to the circumstances of the case out of which the occasion of privilege and the particular communication arose -an inference of actual malice may be drawn from it; and if that were the only question in this case, we should be disposed to hold with the plaintiff. But we must look to see what really did take place upon this occasion.

The defendant was a creditor of the firm of which the plaintiff and Briggs were partners. He was interested therefore in the winding up of the affairs of the firm, and interested in the matter with reference to which he wrote this letter. The plaintiff and Briggs, as partners, having got into difficulties, and disputes having arisen between them, and a deed of inspectorship having been proposed, Messrs. Collier & Co., the persons to whom the defendant addressed this letter, come upon the scene and addressed letters to Mr. Briggs with reference to the state of the affairs, which letters are brought to the knowledge and attention of the defendant; and then the defendant, as a creditor, and as a party

(6) 15 Com. B. Rep. 422; s. c. 33 Law J. Rep. (N.S.) C.P. 96.

(7) 34 Law J. Rep. (N.s.) Q.B. 247. (8) 18 Law Times, N.S. 527.

(9) Cockburn, C.J., Keating, J., Lush, J., Hannen, J., Brett, J. and Hayes, J.

interested, writes to Messrs. Collier & Co. with reference to the course which they, on the part of the plaintiff, were prepared to adopt. The communication therefore was clearly privileged, and the matter was one in which the defendant had a previous interest. Then comes the question, whether the language which he uses was too strong for the occasion, and an abuse of the privilege to which he was otherwise entitled with reference to the affairs of the plaintiff. The terms he uses are "most dishonest and disgraceful." The occasion being privileged, the presumption of law is that there is an absence of malice, and in order to rebut that presumption it is incumbent on the plaintiff to shew actual malice; and conceding that he may shew it by reference to the terms of the libel, as being utterly disproportioned to the exigency of the occasion, one must look here to see whether the circumstances are such as to rebut, the presumption of the absence of malice, on the part of the defendant, which would otherwise exist under the circumstances. The plaintiff, relying on the intrinsic evidence as shewing that the language of the letter was too strong, and therefore not privileged but libellous, in the course of his evidence discloses the fact, to which it may be fairly assumed that the defendant alludes in using the language complained of, that he had himself taken away (under circumstances capable of a perfectly innocent, but also of a different construction) from the partnership cash-box certain bills of exchange, the property of the firm. The circumstances under which he did so being capable of a twofold construction, it may be that he did it under such circumstances as that the defendant would not be warranted in assuming, and cannot be taken to have honestly assumed and believed, that he took them dishonestly. On the other hand, it is open to the construction that he took them under such circumstances that the defendant might and did really believe that he had acted dishonestly, and therefore disgracefully, in taking away these bills.

Now, the presumption of law being that what was here written was written with

an absence of malice under the circumstances, and the only evidence to rebut that presumption being an act done by the plaintiff capable, as I have just said, of this twofold construction,-the presumption of innocence which attaches to that which was written by the defendant must also, I think, still obtain; and it must be presumed that the defendant, in whose favour we started with the presumption of innocence in point of law, did take that view of this particular act done by the plaintiff, which induced him to believe, and honestly believe, and to say that the plaintiff, in committing this act, had been guilty of the conduct which had been imputed to him. Although we have not to deal with the question of justification, still that always must be borne in mind. It is not a question whether the plaintiff did or did not act dishonestly or disgracefully. All we have to see is, whether the presumption be that the defendant only stated that which he honestly believed; if he did that only, he is not liable. That is all we have to look to, and unless there is positive proof to the contrary, there is nothing to go to the jury. Whether it would have been a safer course here to have taken the opinion of the jury upon those facts is another matter; if it had been taken, probably the verdict would have been given for the defendant, in which case we should not have thought of disturbing it. But here, as I have said, the first presumption is in favour of the defendant; and secondly, it is perfectly compatible with the circumstance that he had an honest belief, which the law, in the first instance, presumes him to have had when he wrote the matter contained in this letter. I think, therefore, that the presumption ought to prevail in his favour throughout, and therefore the learned Judge, upon the whole, did right in saying that there was no case to go to the jury, there being nothing to rebut the presumption of law which, under the circumstances, we should draw in favour of the defendant.

Judgment for defendant.

Attorneys-A. D. Lamb, for plaintiff; Venning, Robins & Venning, for defendant.

1869. May 29.

HARVEY AND OTHERS v. THE
MAYOR AND CORPORATION OF
LYME REGIS.

Construction of Statute-1 & 2 Geo. 4. c. 99. s. 24.-" Goods landed" within Harbour-Tolls.

The 24th section of the Lyme Regis Harbour Act, 1 & 2 Geo. 4. c. 99, entitles the defendants to levy tolls on goods and merchandise "landed" as well as on goods and merchandise "shipped within the harbour" of Lyme Regis. Limestone brought into the harbour of Lyme Regis in lighters from quarries in the neighbourhood was deposited on a spot between high and lowwater mark within the harbour till it should be shipped again for exportation :-Held, by Kelly, C.B., Bramwell, B. and Cleasby, B. (dissentiente Channell, B.), that the limestone was not "landed" within the meaning of the act; the defendants were therefore not entitled to claim a toll on it as for goods or merchandise "landed.”

Replevin for a boat and three tons of limestone therein, taken by the defendants in or near the harbour of Lyme Regis.

Avowry, justifying under 1 & 2 Geo. 4. c. 99. (an Act for improving and maintain

ing the harbour, pier or cobb at the port and borough of Lyme Regis), by which it was enacted, that it should be lawful for the mayor and burgesses of the said borough for the time being to levy upon all and every of the ships, vessels and boats of whatsoever description which should come into the said cobb or harbour, and for all goods, wares, merchandise and other things landed or shipped within the said cobb or harbour, the several rates and duties set forth in the Schedules to the said act marked A. and B. (1) respectively, &c. With avowry justifying the taking of the boat and limestone within the said harbour, because the plaintiffs had just before the taking unloaded and landed therefrom, within the cobb or harbour, about three tons of limestone, whereby the plaintiffs became and were chargeable with the rates and duties in the said Schedule B.; and

(1) Schedule A. imposes a tonnage duty on all vessels of ten tons and upwards coming into, or using, or lying at anchor within the harbour; and Schedule B. fixes a rate on all goods, wares and merchandise landed within the harbour, as well as on all goods, &c. shipped there; specifying the rate of 6d. on every ton of freestone, limestone or other stone.