John Bain, Esq., of Morriston v. The Whitehaven and Furness Junction Railway Company [1850] UKHL 7_Bell_79

UKHL
John Bain, Esq., of Morriston v. The Whitehaven and Furness Junction Railway Company
[1850] UKHL 7_Bell_79
An objection that the minute of parties agreeing to close the Record, omitted in its specification of the Record the summons and defences in a supplementary action, was disregarded by the House.

Subject_ Ibid. —

An interlocutor closing the Record, written upon a separate sheet of paper, without any authentication having been made by the Judge on each step of the process, sustained as sufficient compliance with the Statute 6 Geo. IV. c. 120, sect. 10.

Subject_ Ibid. — Exceptions. —

Uuder a Bill of Exceptions, which objects to evidence upon a particular reason assigned it, is not competent to support the objection upon another reason not assigned.

Subject_ Evidence. —

A witness who had been a shareholder of the Company by whom he was called, but had parted with his shares before his examination, and had recorded the transfer in a temporary register, used in the period between the meetings of the Company at which the sealed register was made up, is not open to the objection of interest. Semble.

Subject_ Ibid. —

Surprise is not a ground of exception to the reception of evidence tendered at a trial, the exception being unaccompanied by any objection to the admissibility of the evidence, had there been no surprise.

Subject_ Ibid. —

The lex fori , not loci contractus , is that by which Courts must be governed, in determining as to the admissibility of evidence.

Subject_ Statute — Railway Acts. —

Those clauses in the Railway Acts in regard to the books of the Companies being evidence of partnership against the shareholders, are imperative, and not merely directory, as to the mode in which the books are to be kept.

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Subject_ Statute — Railway Acts. —

The numbers of a partner's shares in a Railway Company, need not each be stated in the register of shareholders where the numbers are running, but are sufficiently distinguished by stating the first and the last numbers of the series, and placing the word “to” between them.

Subject_ Ibid. — Ibid. —

The amount of money paid by a railway shareholder upon the shares held by him, is sufficiently stated in the register of shareholders, by placing the aggregate amount paid on all the shares held by him opposite a circumflex of these shares.The Respondents, a Company which was formed and is domiciled in England, brought an action against the Appellant, alleging that he was the proprietor of 565 shares of their stock, and that a variety of calls of capital upon these shares had been duly made on him, but had not been answered, and concluding for payment of the calls.The Appellant pleaded in defence that he was not a shareholder; that the calls had not been legally made, and proper notice of them had not been given to him; that the requisites of the statutes under which the Respondents' Company was constituted had not been observed, and therefore they were not entitled to recover.The summons and defences in this action were marked by the Clerk of Court respectively 1 and 11 of process.Subsequently, the Respondents brought another action against the Appellant for another call, which had been made upon him after the date of raising the first action. The Appellant put in the same defences to this action as to the first. This new summons and defences were marked by the clerk respectively 14 and 17 of process.On the 6th of February, 1849, these two actions were conjoined, and an issue was directed to try the question between the parties in the following form:The holder of 565 shares of the Whitehaven and Furness Junction Railway Company, and is indebted and resting owing to the Pursuers in the following sums, or any part thereof viz;”
“Whether the said John Bain was, at the dates of making the calls after-mentioned, respectively.

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then followed a specification of the calls, including that embraced by the second action.After this issue had been adjusted, a minute agreeing to close the Record was signed by the counsel for the parties, upon a separate sheet of paper on which the interlocutors in the cause had been written, in these terms:
“We, the counsel for the parties agree to close the record on the summons and defences No. 1 & 11 of process.”
Underneath this minute the usual interlocutor closing the record was written and signed by the Lord Ordinary; but no minute or writing of any kind was put upon any steps of the process to identify them as forming part of the record.The parties then went to trial upon the issue which had been adjusted. At the trial, the Respondents called John Meyer, the Secretary of their Company, as a witness. In his examination in initialibus, Meyer said he was not a shareholder; he had sold in December, 1849 (the trial taking place in January, 1850); that the transfer was not yet entered in the transfer book, but it would be entered in the half-yearly register. It was recorded in the supplementary register of shareholders which was not yet sealed, but was kept in the interval between the meetings at which the completed register was sealed, and it would be copied out before the next half-yearly meeting into the register book, and duly sealed. Whereupon the counsel for the Appellant objected to the examination of Meyer, on the ground that he was a partner of the Respondents' Company, and had not legally transferred his shares to any other party; but the Judge overruled the objection, and thereupon the Appellant tendered his first Exception.The Respondents, in order to prove that the Appellant was the holder of the shares stated in the issue, tendered three

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Register No.Name.Residence.Description.No. of Shares.Numbers.Amount paid to Aug. 26, 1847.

From

To

320

Bain, John

{of Moriston, in Glasgow}

Esq. {

5025515758102050201002501,5518,4708,7658,77011,97412,03112,04612,06412,29915,31913,48413,37413,5141,6008,4948,7698,78411,98012,03512,05312,07312,31815,36813,50313,47313,7633390565The Appellant objected to the reception of these books, upon four grounds, First, because they were not titled “Register of Shareholders;” Second, because they did not distinguish each share by its number, or the total number of shares held by the Appellant; Third, because they did not show distinctly the amount of subscriptions paid on each of the shares held by him; Fourth, because his name was not entered in a proper manner to distinguish him as the holder of the shares mentioned in the issues, and the entries opposite his name were made in an informal and irregular manner. The Judge repelled these objections, and thereupon the Appellant tendered his second Exception.The Respondents then, in order to prove the calls stated in the issue, tendered a variety of letters bearing the printed signature, “John Meyer, Secretary,” and proposed to prove by the evidence of English Counsel, that documents of that

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Of these Exceptions the first was given up at the bar of the Court below, but the second and third were fully argued, and after argument, were disallowed by the interlocutor, which was the subject of appeal.Mr. Turner and Mr. Anderson for the Appellant.—The interlocutor appealed from ought to be reversed because the record was not prepared and authenticated in the manner required by the statute. The minute signed by counsel bears express reference to the first summons and defences, Nos. 1 and 11 of process, as being alone the record which they had agreed to close, but the issue embraced the call for which the second action had been brought, the record as to which were Nos. 14 and 17 of process. The 7th section of the 6th Geo. IV, c. 120, requires the parties to state whether they are willing to hold the summons and defences as containing their full and final statement of facts, and that their counsel shall sign a minute to that effect. This had not been complied with in regard to the second action, for no such statement had been made in regard to it. Expressio unius est exclusio alterius .If this objection could be got over, the objection would remain that the 10th section of the same statute had been disregarded as to both of the actions, first as well as second

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[ Lord Brougham .—In English pleading, if a party plead a plea of not guilty, which is a nullity, and the other goes to trial without signing judgment, as for want of a plea, or demurring to the plea as informal, the verdict cures all, and he can't afterwards move in arrest of judgment.]That is not statutory. The statute here declares that there shall be no order or judgment delivered until there is authentication. In Wilson v. Wemyss , 6 Bell, 394, the House refused to give any judgment upon the merits, because the interlocutor below had not complied with the statute in that behalf. In Dallas v. Fraser , 11 Co. of Sess. Ca. 1058, the Court held it incompetent even to dismiss a summons as irrelevant, until the record had been prepared. In Parish of Lasswade v. Charity Workhouse , 6 Co. of Sess. Ca. 637, every step of the process which formed part of the record was authenticated as such by the Lord Ordinary, and the necessity for this was fully recognized by the Court. And in Arbuthnot v. Thom , 26 Mor. 1130, the Court refused to allow the parties to cure the objection taken by the Court that the record had not been closed.[ Lord Brougham .—May you not waive the objection of want of jurisdiction?—Can't you give it by prorogation?]In Forest v. Harvie , 4 Bell, 197, the proceedings were held to be void because the warrant of citation was signed by the Clerk of the Magistrates instead of the Clerk of the Justices.

[ Lord Brougham .—There there was no jurisdiction originally by any means.]

If the record may be closed at any time, or the defect cured

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The Respondents were heard in answer upon this preliminary objection, and afterwards it was intimated by Lord Brougham, the Peer on the Woolsack, that the House did not consider the objection of any weight, but no formal judgment was pronounced. On the following day the case proceeded on the merits.The First Exception regards the reception of the evidence of the witness Meyer.[ Mr. Butt for the Respondents submitted, that as the Appellant had given up this objection in the Court below he was not entitled to be now heard upon it.]In Burnes v. Pennel , 6 Bell, 541, it was held that the Appellant might argue an objection which had not been taken by him in the Court below.[ Lord Brougham .—There is a great difference between abandoning and never taking an objection.]In Luke v. Mags , of Edinburgh, 8 Will, and Sh., 241, the House allowed a question to be argued which had been raised by the pleadings, but had not been argued before the Court below.Meyer admitted he had been a shareholder, but said he had executed a transfer of his shares. Till, however, that transfer had been entered in the books of the Company and the name of the Transferee appeared there as the shareholder, Meyer continued the shareholder as between him and the world. The 36th sect. of the Company's Clauses Consolidation Act gives a right of execution against shareholders, and a right to inspect the register for the purpose of discovering who bear that character. Any creditor, therefore, seeing Meyer's name upon the register might have sued him effectually. No doubt the 15th sect. says that shareholders shall continue liable until the transfer of their shares are delivered to the Secretary and a certificate is endorsed by him, leaving the inference that after

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Second Exception.—The books of the Company are not at Common Law any evidence per se of their contents, in favour of the Respondents. They are made so by the Company's Clauses Consolidation Act, 1845, which, in its 28th sect. declares, that the “Register of Shareholders” shall be primâ facie primâ facie evidence in “favour of the Railway Company.” In order to have the benefit of this enactment the Company must have complied strictly with the terms of the statute in regard to the form and mode of keeping the register, as was decided in Birkenhead Co. v. Brownrig , 13 Jur., 943; and in Davidson v. Gill , 1 East, 64, where an order of Justices stopping up a way was held to be invalid because its form was not precisely that given in the schedule of the statute under which the Justices derived their power. Now the 9th sect. of the Company's Clauses Consolidation Act is in these terms:—
“The Company shall keep a book, to be called the ‘Register of Shareholders;’ and in such book shall be fairly and distinctly entered, from time to time, the names of the several Corporations, and the names and additions of the several persons entitled to shares of the Company, together with the number of shares to which such shareholders shall be respectively entitled, distinguishing each share by its number, and the amount of the subscriptions paid on such shares, and the surnames or corporate names of the said Shareholders, shall be placed in alphabetical order; and such book shall be authenticated,”
&c. This provision was disregarded in the ways which were stated on the trial. 1st. The title of the book which was tendered to prove that the

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Now, with a register kept in the way in which the one in question was, it would not have been possible for a creditor to obtain the information which this section intended to put within his reach.Third Exception.—It was not competent to allow the evidence of English counsel to show that the minutes authorizing calls, and the letters making the calls, did not require to be signed. The law of the forum was that alone which should have been considered in regard to the nature of the evidence to be allowed. Yates v. Thomson , 3 Cl. & Fin., 544; Don v. Lipman , 2 Sh. & McL., 682.

[ Lord Brougham .—Do you object more on the record than surprise?]

The exception was to the examination of the witness. The reason now assigned for the objection may not then have been present to the minds of the party's advisers, but there is no ground for saying that a bad reason having been assigned, a good one shall not be inquired into. The main objection is to the reception of the witness. The reasons for this may be various and different. Even if the reason assigned, viz., surprise, were to be now argued, the objection would still be to the admissibility of the witness, or to the result at which the Judge arrived when allowing the examination. It is not competent to except to the steps by which the Judge arrives at the result, but it is competent to except to the result itself upon any ground which can be assigned. Here the law of England was quite foreign to the matter, whereas if the question had been determined upon the law of Scotland, the objection to the evidence must have been sustained;—that was so ruled upon the trial of a case with the Great Northern Railway Company, where the same question occurred; and that ruling was consistent with the terms of the statute. By the 22nd sect. no form of call is prescribed, but by the 139th sect. it is enacted that “every summons, notice, or other such document, requiring authentication by the

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[ Lord Brougham .—That means, that what is common to every one of the instruments mentioned may be in print, and what is particular to any one of them may be in writing?]We submit not. What the statute looks to is authentication, but a printed signature would not give any authentication.Mr. Butt and Mr. McFarlane for the Respondents.Lord Brougham .—The two points which are chiefly for consideration in this case are upon the Bill of Exceptions. The main contention between the parties resolves itself into this; the second exception, upon the ground of evidence being admitted which ought to have been rejected, and the third head of the first exception upon the want of distinct statement of the amount of subscription paid on the shares. Mr. Butt, will you refer me to the part of the Clauses Consolidation Act upon which you rely, to which the third exception applies, that the books don't show the amount of the subscriptions?Mr. Butt. —It is in the 9th section.Lord Brougham .—And which is the Evidence Clause?Mr. Anderson. —The 28th Clause provides that the register is to be primâ facie primâ facie evidence.Lord Brougham .—The 28th Clause provides that the production of the register shall be primâ facie primâ facie evidence of such Defendant being a Shareholder, and of the amount of his shares. I was anxious that you should be both here because my judgment goes on a very narrow point as to the construction of the Act, but it is very material.My Lords,the first point we have to consider, is as to the reception of the evidence of an English counsel that documents

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Now what objection is it that the Lord Justice Clerk repelled, and his repelling which is the sole ground of this exception? It is the objection preferred by the Counsel for the Defender; What is the objection preferred by the Counsel for the Defender? The Counsel for the Defender says he shall object to the evidence proposed on the ground of surprise in respect of the English Law not having been averred on the Record.Then that was the ground of his exception, and it is necessary by law that when a party objects, be it to the receiving of evidence, be it to the rejection of evidence, be it to the direction of a learned Judge to the Jury, whatever is the subject matter of his exception, he must state the ground of his exception, otherwise he cannot except. It is not enough for a party to say “I except to the receiving ofa. A. B's. evidence,” or “I except to the rejection of A. B's. evidence,” or “I except to the first passage in the charge or direction of the learned Judge to the Jury.” If he objects to A. B's evidence, he must show why he objects to it, as by stating that A.b. B. is an incompetent witness. If he objects to the rejection of A. B's evidence, he must show why he objects to its being rejected; he must state that A. B. is a competent witness and that the rejection of him was not good in law. If he objects to the learned Judge's observations to the Jury, he must state, not merely that he objects, but he

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Now, my Lords, the ground of the objection to the evidence proposed was surprise and surprise only; not that the evidence was inadmissible (per se) but that it was inadmissible because it had not been notified properly on the record. It was surprise and surprise only. The Court held that surprise was no sufficient ground of objection, overruled the objection, and therefore repelled the exception.But, say the learned counsel for the Appellant, the counsel for the Pursuer did insist that the proposed evidence was competent and admissible. No doubt he said it was competent and admissible. But this was only a reiteration of his tendering the evidence. “And the said Justice Clerk repelled the objection preferred by the counsel.” What objection? Not a general objection to the evidence as inadmissible, but an objection, that though admissible, he had had no notice upon the record; that is, he was taken by surprise. Consequently, that which the Lord Justice Clerk did, was, not to repel an objection to the evidence as inadmissible generally, but to repel an objection to the evidence, whether admissible or not, as taking them by surprise. On this ground, therefore, I am perfectly clear that they are shut out from their objection, because the only ground taken was surprise, and surprise is no ground; indeed, it has hardly been taken now.The English counsel was then allowed to be examined; whereupon the counsel takes the third exception, but it really is

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Now, I have considered the only case which was given to me to consider on this point; and I am of opinion that it does not apply, for the reason I threw out to the Bar. I very much regret that this clumsy mode of proceeding has been adopted in the Court below. There has been a slip on the part of the learned counsel for the Appellant in the Court below; they ought to have taken their objection, not on the ground of surprise, but on the irrefragable ground, that the testimony was no evidence, and not anything like evidence. And I am sorry that we cannot go into that here. I am sorry that your Lordships have not the opportunity of setting the Court below right on a most important point. For it is not merely on this case that the point bears, but it is a point of general importance. The Court of Session has gone against all the principles of the law in this country on the subject—the principles of the law of evidence—which, unless in certain excepted cases, they generally profess to go by. They have gone directly against those two important cases—Scottish cases decided here on appeal— Donne v. Lipman , and Yates v. Thompson ; the latter, indeed, turning on facts closely resembling those in this case.The case of Donne v. Lipman was on the Statute of Limitations; Yates v. Thompson was on all fours with this case; and it is perfectly evident that these cases are the law of the land on the subject, and only follow the law which had been clearly laid down in the Court of Queen's Bench, and particularly in the Court of Common Pleas in well known cases, one

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The only point in Donne v. Lipman that required to be settled, was, whether the Statute of Limitations (or, as it is called in Scotland, Prescription), is lex fori or not. One party contended that it was part of the lex loci contractus, admitting that if it was lex fori, their case was gone. But we held that the Statute of Limitations or Prescription was parcel of the lex fori. I held it to be quite clear, and your Lordships determined the case on the ground that it was parcel of the lex fori.In Yates v. Thompson there was no doubt entertained upon the subject, and the rule was clearly laid down.

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Now, quite contrary to this rule, the Court of Session has proceeded here against all principle and all authority. The objection on the ground of surprise was rightly overruled. But the evidence was wholly inadmissible, and should have been rejected at the trial, whether objected to or not.I trust, therefore, that while it is known that we affirm the judgment on this point, it will also be understood upon what ground we affirm, namely, because this objection was not taken below, for if it had been taken it must have prevailed. The learned Judge who tried the case should not have allowed such evidence. The Court, on the Bill of Exceptions, was of course confined to the question of surprise, raised, and alone raised, on the record. Though some of their Lordships, by a manifest oversight, consider the question of admissibility generally to be before them, which it was not, and gave an erroneous opinion on it, deeming the evidence admissible.But now see the consequence of not taking the objection, and see how impossible it is for us to overleap the bounds by which I have now stated we are limited. Were we to take this objection now, it would be said, “If this objection had been taken below, instead of the party confining himself to surprise as the ground of objection, non constat that the Court would have allowed the evidence, and then there would have been no ground of exception; or non constat that the Respondents would not have withdrawn the witness, and there would have been no ground of objection; or non constat that they would not have put up another witness, and proved their point aliunde in an unexceptionable way.”That leads me to the conclusion, which I advise your Lordships to adopt, namely, to overrule the exception and support the decision below, on the ground, not that the exception could not have been taken, but, on the contrary, that it has been wrongly taken, or taken upon a wrong point, when, had it been taken on the right point, it was invincible.

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Then we come to the only point which seemed to me to require much consideration. I do not think, upon the whole, it can be contended that the books omitting to distinguish each share by its number is a sufficient objection.You are not to give a construction to this part of the statute that would make it so absurd as to require, that if a man has a thousand shares, there must be a thousand lines stating his shares. If every one of his shares stands in the same predicament, there is a substantial compliance with the statute.At the same time one part of the exception says, “Because the books do not distinguish each share by its name (that I have dealt with), or the total number of shares held by the Defender.” I apprehend, Mr. Anderson, they do state the total number of shares held by the defender?Mr. Anderson .—You must go through an arithmetical operation to arrive at it.Lord Brougham .—But you can do it with a very little arithmetic. But what did really operate with me was the third ground of exception—“Because the books do not show distinctly the amount of subscriptions paid on the shares held by the Defender.” Now if I had certainly found that this was not distinctly set forth, my opinion would have been in favour of the Appellant; because it is most important that everything should be done which the statute (8th and 9th Vict., chap. 16) requires to be done; and for this reason. A great privilege is bestowed by the Act upon the Company, neither more nor less than the privilege of making evidence for themselves. They are allowed to make their own books evidence, which, unless it is rebutted by counter-evidence, shall give them the verdict in each case. That is a very great privilege, as must be admitted on all hands. By the rules of evidence, and the rules of common sense and justice, what a man writes is always evidence against him, but no evidence for him. But here is a case in which what he writes is made evidence for him, and against his adversary. So

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Let us, then, look at the terms of the 9th section:

“The Company shall keep a book, to be called the Register of Shareholders.”

Now I do not see any force in the objection that it was called a Register of Proprietors, because it seems quite a sufficient compliance with the terms of the section; and Mr. Butt, I think, will agree in waiving that objection, and confining himself to the others:
“And in such book shall be fairly and distinctly entered from time to time the names of the several corporations, and the names and additions of the several persons entitled to shares in the Company, together with the number of shares to which such shareholders shall be respectively entitled, distinguishing each share by its number.”
My opinion goes upon a very narrow ground, and you will presently see it is upon a single letter, “distinguishing each share by its number, and the amount of the subscriptions paid on such shares,” in the plural, “and the surnames or corporate names of the said shareholders.”Now I freely confess, so disposed am I to look at the strict execution of this direction as a condition precedent to the enjoyment

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Then comes 3,600 l ., which at first I was disposed to consider in favour of the Appellant's contention, because it gives a lumping sum together, and does not distinguish what is applicable to each share. But I do not think that can be taken advantage of, especially in the Court of last resort. I am not at all sure that if this case had been decided the other way I should have recommended your Lordships to have reversed the decision. But I do not think there is sufficient ground to recommend your Lordships to reverse as it now stands: it is one of those cases in which the point is so narrow. But it is very well for the party who has possession of the judgment. It is a case in which, if it had been the other way, we should not have interfered to

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Have you anything to suggest, Mr. Butt, on the question of costs?Mr. Butt. —If I might take the liberty of suggesting, my Lord, I was going to suggest very respectfully to your Lordships that there is on the merits here no real defence.Lord Brougham .—I am quite aware of that. I stated so at the hearing. You are quite right. Mr. Anderson, you have not a leg to stand upon as regards merits.Mr. Anderson. —We cannot get into the merits, my Lord.Lord Brougham .—You never could have got into them with any advantage to yourself.Mr. Butt. —They went to the jury on the point.Mr. Anderson. —You proved your case against us. There is a little difference in the second appeal, my Lord; your Lordships will remember that the second appeal brings up a final judgment decerning against the Defender for the amount.Lord Brougham .—It does not raise the other point, it makes no difference.Mr. Anderson. —Your Lordships will remember that there was a motion for a new trial; the Counsel for my party wished that motion to stand over till your Lordships' judgment on the Bill of Exceptions should be given. That point of the admissibility of evidence would have been available on the motion for the new trial.Lord Brougham .—Suppose we had given the judgment before, how could you have taken advantage of it?Mr. Butt. —They would not go on with their motion, my Lord.Lord Brougham .—I know that.Mr. Anderson. —But I think it was quite reasonable that the motion for a new trial should not go on until your Lordships

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Mr. Butt .—I am instructed, my Lord, differently.Mr. Anderson .—We have the Record here. At page 61 your Lordship sees what took place. There is a motion that the Court should not take up the motion for the new trial, until this case was disposed of.Lord Brougham .—Does your proposition go to affect the judgment on the appeal?Mr. Anderson .—My proposition was, that the judgment should be recalled, and the Court below should be directed to dispose of the motion for the new trial.Lord Brougham .—There is no ground for that, there have been proceedings enough; the case was not one of a conscientious defence at all.Interlocutor affirmed with costs.Solicitors: Dodds and Greig— R. and W. G. Roy.