HC Deb 05 December 1826 vol 16 cc232-43
Mr. D. W. Harvey

said, he rose to present a petition upon a subject of all others the most open to confusion; he meant the uncertainty of the law. The petition was very appropriate to the present occasion, as it had some reference to the Joint-stock companies, the subject of which was about to be brought before the House. The petitioner stated, that he had been employed as the secretary of one of the most solid and substantial Joint-stock companies; namely, the National Stone Way Company. Having performed his duty, the petitioner could not get his salary paid, and he therefore attached some property or funds of the company in the hands of the City bankers. The banker having refused to pay this money, the case had been brought before the City court, and the recorder of London had nonsuited the petitioner, on the ground that a company existed, of which the money attached was a part of the property, and ought to have been attached as the property of the National Stone Way Company. The petitioner, therefore, brought an action against the bankers, in the court of King's-bench, when he was defeated on just the reverse grounds namely, that the company was, in point of law, no company at all. He wished the petition to be referred to the committee that might grow out of the motion to be made that night, upon the subject of Joint-stock Companies.

The Petition was then read as follows:— To the Right Honourable the Commons of the United Kingdom of Great Britain and Ireland, in Parliament assembled: the humble Petition of Thomas Parkin, of No. 14, Poultry, Secretary to the National Stone Way Company. "Showeth— That your Petitioner is Patentee for a method of laying down oblong granite stones, in streets and on roads, for the wheels of waggons and carriages to run on; the adoption of which, in consequence of the diminution in friction, would much advance the commercial prosperity of this Kingdom. That, in April, 1825, a Prospectus was issued preparatory to the formation of a Company to carry this national object into effect. That, in May following, a Public Meeting was held at the George and Vulture Tavern, in Cornhill, for the purpose of forming the said Company. That, at this Meeting, your Petitioner acted as Secretary; that various Resolutions were then proposed, and unanimously adopted, amongst which are the following:—

"That a Company be now formed for the purpose of carrying into effect the objects set forth in the Prospectus: that a Committee for conducting the affairs of the Company, pro tempore, be appointed: that the Committee consist of the following Gentlemen, Subscribers to the Company, with power to add to their number [the names here follow]: that a deposit of 1l. per Share, and 5s. per Share to the Patentee, be paid into the hands of Messrs. Fry and Chapman, bankers, ad interim, to whom the Secretarys letter, announcing the allotment, must be delivered as their authority for receiving- the money on account of the National Stone Way Company: that Messrs. Fry and Chapman be empowered to pay cheques or drafts, signed by three Members of the Committee, and countersigned by the Secretary and the Solicitor.'

"That the Company being so formed, the Committee proceeded to carry its object into effect; that your Petitioner, as Secretary to the Company, officially transmitted to Messrs. Fry and Chapman a copy of the aforegoing Resolutions; that an account was opened in their books under the title of 'the National Stone Way Company;' that deposits to a considerable amount were paid into their hands, under the authority of letters signed by your Petitioner, announcing the allotment of Shares, and placed to the credit of the National Stone Way Company: that two checks, hereinafter mentioned, were drawn upon, and paid by, the said Bankers, by virtue of the signatures of three members of the Committee, and those of your Petitioner, as Secretary to the Company, and Mr. A. K. Hutchison, as Solicitor; that your Petitioner continued to act as Secretary to the Company for the space of six months, but could not any longer so act, because the Committee, most unjustly, refused to pay him any thing for his services; that, in consequence of such refusal, he attached the amount which might reasonably be considered as due to him in Messrs. Fry and Chapman's hands, as the property of the Committee acting for the Company, and in whom the control of the money had been vested; that Messrs. Fry and Chapman resisted the attachment, on the ground that the money was not the property of the Committee, but of the persons who had paid it into their hands, and who composed the Company— in support of which defence they proved by a clerk, that the money had been placed in their books to the credit of the National Stone Way Company; that the Learned Recorder held the objection to be good, and decided, that as the money was the property of the Company, and had been placed to the credit of the National Stone Way Company in the books of the garnishees, the attachment could not be maintained; that your Petitioner, thus defeated on the ground that the money should have been attached as the property of the Company, and not that of the Committee, applied to Messrs. Fry and Chapman to furnish him with the names of the persons who had paid the money into their hands, in order that he might lay his attachment accordingly; but this Messrs. Fry and Co. refused to do.

"That your Petitioner, thus circumstanced, was advised to bring an action against Mr. Wm, Fry, the principal partner in the said Banking-house, and a Shareholder in, and a Member of, the Committee of the said National Stone Way Company, in order to recover from him, individually, unless he should plead in abatement, the amount due to your Petitioner for his services as Secretary to the Company, and for those of his son (a minor), as a necessary assistant in the Company's business, and the respective sums of 8l. 10s. which he had paid for printing the prospectus of the Company, and 2l. 10s. for postage and other expenses which he had incurred in prosecuting the Company's business; that the defendant did not plead in abatement, and therefore the action proceeded against him, as a matter of course.

"That the action was tried at Guildhall, on the 24th ult. before the right hon. sir Charles Abbott, Knt. Lord Chief Justice of his Majesty's Court of King's Bench, and a Special Jury, moved for by the defendant; that at the trial, the Prospectus, which sets forth that the Company were to act under a patent granted to your Petitioner, the plaintiff in the cause, and that 5s. per share were to be allowed him as Patentee, and a printed copy of the Resolutions, passed at the public meeting, held in May, 1826, already alluded to, were put in and read in evidence: that it was proved by Mr. George Nelson that he attended the said meeting; that your Petitioner acted as Secretary thereat; that he stated that for all his services up to that time (although he had been occupied several months in that capacity, in taking the necessary preliminary measures for the formation of the Company), he should make no charge, and that the Company would, consequently, commence without any expense but that of printing the prospectus, and of sundry advertisements; that it was proved by the Minute Book of the Company, that the defendant, Mr. William Fry, was added to the Committee on the 6th June following; that he attended a Meeting of the Committee on the 23rd of that month; that at the said Meeting, your Petitioner, the Secretary to the Company, submitted certain propositions for the approval of the Committee, intended to be made to Mr. Deputy Routh, on behalf of the Commissioners of Sewers, for paving, on the Company's plan, one of the streets of the City; and that the Committee approved of those Resolutions, and instructed your Peti- tioner, as their Secretary, to transmit them to Mr. Routh, and to call another Meeting of the Committee when to your Petitioner it should seem necessary; that it was also proved from the Minute Book that the Committee of the said Company in July following resolved on despatching your Petitioner to Jersey, Guernsey, and Devonshire, in order to procure supplies of granite stone, and to enter into treaties for quarries on the Company's account; that they advanced him by a check on the house of the defendant, 20l., on account of his travelling expenses, and at the same time paid him another check upon the said bankers (and which are the two before spoken of) for 144l.; being his remuneration, as patentee, of 5s. per share, as provided for by the Prospectus, and the Resolutions of the Public Meeting hereinbefore mentioned, on the number of shares upon which the deposits had been paid into the said Banking-house; that 5l. more was remitted by the Solicitor to the Company to your Petitioner, on account of his travelling expenses, while he was at Plymouth, making in all 25l.; and that the amount of his travelling expenses on these voyages and journey was 25l. 14s.— admitted by the defendant's counsel and the Lord Chief Justice, to have been exceedingly moderate; that Mr. Liscombe Price, a Member of the Committee, fully confirmed the evidence adduced from the Minute Book; and further proved, that the defendant, Mr. Fry, not only attended the Meeting of the Committee on the 6th June, and voted at the Board, but that he, the defendant, moved on that occasion, that your Petitioner, who then, as at all other times, except when absent on the Company's business, acted as Secretary, 'should call another Meeting of the Committee when to him should seem fit;' that Mr. Price further proved, that your Petitioner was unremitting in the discharge of his duty; that the Committee resolved on sending him a second time to Jersey and Guernsey; that he was instructed by the Committee to wait upon, and to enter into negotiations with, various Public Bodies; that he himself had accompanied him to one of those Bodies; that the Committee were perfectly satisfied with the zeal, ability and frugality which he evinced in the Company's service: that for his services he was entitled, in his (Mr. Price's) opinion, to at least 20l. per month, and to 30s. per week for the assistance of his son: and that the 5s. per share was not paid to your Petitioner as a reward for his services as Secretary to the Company, but as the remuneration stipulated for him, as Patentee, for granting to the Company the use of his patent; that Wm. Baker, esq. (your Petitioner's attorney in this action), who is Clerk to the Trustees of the Commercial-road, proved that your Petitioner, as Secretary to the Company, had frequent interviews with him and the said Trustees upon the subject of laying down stones, upon the Company's plan, on the Commercial-road; that at length terms were agreed upon; that he drew out an agreement, and sent it to your Petitioner for the approbation of the Committee; that it was returned to him by the Solicitor to the Company, as having been approved of by him on behalf of the Committee; that he (the witness) had himself been Secretary to a similar Company for five months, while forming (another Gentleman having acted as Solicitor), and that for such services he had been paid 250l., besides 50l. for expenses; that Mr. Nathaniel Bliss proved that in January last, your Petitioner paid him 8l. 10s. for printing the Prospectus of the Company.

"That the defence to the action was, that no Company had ever been formed; that, if one had been formed, it was your Petitioner's own Company; that the Committee might, with the same propriety, sue your Petitioner for their services as he them for his; that the Company was set up for the plaintiff's own benefit; that there was no evidence that your Petitioner had been employed by the defendant; and that the plaintiff had been paid 5s. per Share, for acting as Secretary to the Company.

"That the Lord Chief Justice said, 'that no Company had ever been formed; that the plaintiff undertook the journeys (the expense of which had been paid to him in two respective sums of 20l. and 5l.) to promote their joint object; that he acknowledged the wisdom of the defendant's Counsel's observation; that the Committee might, with the same propriety, sue the plaintiff for their services as he them for his; that the plaintiff had been paid 5s. per share for acting as Secretary to the Company; and that there was nothing to show that your Petitioner haul been employed by the defendant, and that, therefore, there was no ground for the action,' and non-suited your Petitioner.

"That your Petitioner being advised that a case was fully made out to go to the jury, and that if it had gone to them, a verdict must, according to the evidence, have been recorded for him, moved the Court of King's Bench, on the 13th inst., for a rule to show cause why the verdict should not be set aside, and a new trial had, upon the ground that a case was fully made out to go to the Jury.

"That on this occasion his Lordship said, 'In this case, as for Company, there was none; but those persons had assumed to themselves the title of The National Stone Way Company; it appeared to him that the plaintiff had no claim; this was a scheme of the plaintiff's own, set on foot for his own benefit, in order that he might have his Patent adopted. There was no ground for saying that the defendant had employed the plaintiff, and upon that ground the plaintiff was nonsuited. He saw no ground for setting aside that nonsuit;' and the rule was refused.

"That your Petitioner begs humbly to submit to your Honourable House the Resolutions passed at the Public Meeting in 1825— the account opened at the Bankers' under the title of the National Stone Way Company, and the two payments made to your Petitioner— the one for the grant of his Patent for the use of the Company, and the other for his travelling expenses on the voyages and journey which he was instructed to undertake on the Company's account, are proof of the existence of the Company; and that, therefore, the Lord Chief Justice, with all due submission, had not the slightest ground, cither in law or equity, for saying that, 'in this case, as for Company, there was none.'

"That to be nonsuited by the Recorder, because there was a Company, and because the Company, and not the Committee of the Company ought to have been sued; and to undergo the same ruinous process by the Lord Chief Justice, because there was no Company, exhibits such an instance of discordancy in legal decisions, as is, your Petitioner hopes, for the honour of the country, without a parallel; and which, besides involving the unfortunate victim of such discordant opinions in utter ruin, must tend, unless a remedy be applied to the evil, to bring our Courts of Judicature into derision and contempt.

"That your Petitioner is wholly at a loss to conceive what, motive could have induced the Learned Chief Justice to assert that there was no Company, unless it were to extricate the defendant from the situation in which he was placed by not having pleaded in abatement; for certainly, had the Company described in the declaration in the proceedings never existed, no plea in abatement could have been made; and, as the defendant could not be the National Stone Way Company, the plaintiff who declared against him as such must necessarily be nonsuited.

"That his Lordship, notwithstanding his twice-repeated assertion to the contrary, did, to all intents and purposes, as your Petitioner humbly submits, admit the existence of the Company, inasmuch as one of the grounds assigned for the nonsuit was, that your Petitioner had been paid 5s. per Share for acting as Secretary to the Company.

"That the Lord Chancellor has decided that all unchartered Companies are nothing more than common partnerships, and that every Shareholder or Partner in them may be sued individually for every claim on the Company.

"That the City Court of Requests, grounding their judgment expressly on such decision of the Lord Chancellor, lately condemned Mr. A. K. Hutchison, Solicitor to, and a Shareholder in, this very Company, to pay 4l. 15s. for the engraving which forms part of the Company's Prospectus.

"That, consequently, the decision of the Lord Chief Justice of the King's Bench is not only at variance with that of the Learned Recorder, as already demonstrated, but directly opposed to the highest Legal Authority in the Realm.

"That the assertion of the Lord Chief Justice, that your Petitioner undertook the voyages and journeys above described to promote the joint object of himself and the Company, was not only unsupported by any proof that your Petitioner was a Partner in the Company, the reverse being the fact, but was in direct opposition to the evidence of the Company's Minute-Book, and the testimony of Mr. Price, who distinctly proved that the Committee instructed your Petitioner to undertake the said voyages and journeys on the Company's account, and at the Company's expense.

"That equally unaccountable is a further assertion of his Lordship, that the Committee might with equal propriety sue the plaintiff for their services as he them for his, there not having been a tittle of evidence adduced, as above stated, to show that your Petitioner was a Partner; whereas, all the evidence clearly demonstrated that he was only a servant of the Company, and never could have participated in its profits.

"That the third assertion of the Learned Judge, 'that your Petitioner had been paid 5s. per share for acting as Secretary to the Company,' cannot be spoken of but with the utmost astonishment; for not only is such assertion diametrically opposed to the evidence which the prospectus and the printed resolutions furnished at the trial, it being expressly stated in these documents that this 5s. per share was to be paid to your Petitioner as Patentee, but to that given by Mr. Price, who swore most positively that this payment was not made to your Petitioner for his services as Secretary, but for granting the use of his Patent to the Company— the amount of which, your Petitioner craves permission to add, was scarcely sufficient to pay for the Patent.

"That the fourth assertion of his Lordship, 'that there was nothing to show that your Petitioner had been employed by the defendant, was equally opposed to the evidence; for the Minute-book proved, that the defendant attended and voted in the Committee; and Mr. Price proved that on the occasion in question your-Petitioner acted as Secretary, and that it was the defendant himself who moved that your Petitioner, 'the Secretary, should call another Meeting when to him should seem fit;' so that, by this act, it was in-contestably brought home to the defendant that he had personally employed your Petitioner, and as incontestably established that he identified himself with the other members of the Committee as the employers of your said Petitioner; but had the defendant not made the motion in question, nor even been a member of the Committee, it is contended, with all due deference, that he was, as a Shareholder, one of your Petitioner's employers; for the Committee were appointed by the Shareholders, or Company, to conduct their concerns; and it was abundantly proved in evidence, that the Committee had employed your Petitioner, by instructing, commanding, and directing him to do what to them seemed best calculated to promote the interests of the Company of which they were the guardians.

"That your Petitioner cannot possibly understand, even had he failed in establishing his claim on the defendant for his services as Secretary to the Company, how such failure could be a bar to his other claims, viz. those for his son's services, and for the 8l. 10s. for printing the prospectus; nor, consequently, how the Chief Justice could declare that there was no ground for this action; for your Petitioner humbly contends, that if the action had been brought for this 8l. 10s. only, the said sum having never been paid to him, a verdict must have been recorded in his favour, unless the doctrine laid down by the Lord Chancellor, before alluded to, and the common law of the land, regarding partnerships, could have been shown to be at variance with some written Statute. Indeed, upon the principle upon which the Committee had paid your Petitioner the two sums of 20l. and 5l. respectively, on account of his travelling expenses to Jersey, Guernsey, and Devonshire, on account of the Company, he humbly submits that he ought to have been paid all other expenses incurred on the same account also; and that, therefore, his claim for the 8l. 10s. furnished, of itself, a case to go to the Jury.

"That, aside from the above considerations, as the declaration in the proceedings sets forth that your Petitioner's claims were touching the National Stone Way Company, of which the defendant was a Manager and a Shareholder, your Petitioner, with all due deference, further contends that the Learned Judge had no right, as the defendant had not availed himself of his privilege of pleading in abatement, to require any proof that the defendant had, individually, employed your Petitioner; and that in the face of the evidence of the existence of the Company, of the Committee having been appointed to conduct the Company's concerns, and of the Committee having been, as the representatives of the Company, your Petitioner's employers, the case, upon all his claims, ought to have gone to the Jury.

"That your Petitioner, with the utmost deference to your Honourable House, states, that he can see no ground on which the Lord Chief Justice could justify his assertion, ' that these persons had assumed to themselves the title of the National Stone Way Company,' and make the assumption of this, or any other title, a ground for the nonsuit, inasmuch as there is no law to prevent a number of persons from trading together under any style or title they may think proper to use; and as persons assuming similar titles have been, and may be, sued both at law and in equity.

"That your Petitioner, with equal deference, contends that his Lordship altogether overstepped his duty, by declaring, without any qualification, in the face of your Petitioner's acknowledged care of the Company's funds, and in the absence of all evidence of there having ever been entertained the slightest suspicion, or of any insinuation even having ever been thrown out, that he sought to benefit himself at the Company's expense, ' that this was a scheme set on foot for the plaintiff's own benefit, in order to get his patent adopted: for it was proved that his patent, by a solemn contract entered into between him and the Company, was adopted before the Company began their operations; and therefore all his subsequent services as Secretary could not have been given in order to get his patent adopted.' Your Petitioner therefore humbly submits, that, as invention is property, he had a right to make this contract, without being liable in any action that might arise on a matter unconnected with it, to be non-suited on the ground that he had exercised this unquestionable right. But if his lordship meant to say, as it is to be presumed he did, that because your Petitioner had exercised this right, and got his patent adopted, he had no claim for his services as Secretary, he most humbly begs to represent to your Honourable House, in the strongest light, the extreme injustice of such a conclusion; for it may be asked, under what obligation could your Petitioner be, to become the servant of the Company either during the time of his natural life, or for a shorter period, because he had granted them for a defined equivalent the use of a certain property of which he was possessed, unless it could be shown, which was not even attempted to be done, that with his property he had sold his services too for the sum of 144l.?

"And that your Petitioner begs, lastly, humbly to submit to your Honourable House, that whilst the City Court of Re- quests, founding their judgment upon the Lord Chancellor's decision, as above stated, compelled one of the Shareholders in this Company to pay for the engraving which forms part of the Prospectus, the Lord Chief Justice of the King's Bench exempts another Shareholder in the same Company from paying the printing, which forms the other part of the same Prospectus.

"Your Petitioner, therefore, humbly prays your Honourable House to take his case into your consideration, and to afford him that relief which will save him from the ruin in which the nonsuit above described has involved him; and to be permitted to prove, at the bar of your Honourable House, either by himself or by Counsel, the allegations set forth in this Petition. And your Petitioner, as in duty bound, will ever pray."

Ordered to lie on the table.