NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1953.tb02127.x |
| Published date | 01 July 1953 |
| Date | 01 July 1953 |
NOTES
OF
CASES
UNINCORPORATED
MEMBERS'
CLUB-LIABILITY
TO
SERVANT
~NJURED
ON
CLUB
PREMISES-REPRESENTATIVE
ACHON
TO
ENFORCE
CLAIM
FOR
DAMAGES
FOR
NEGLIGENCE.
IN
Campbell
v.
Thompson
([1953]
3
W.L.R.
656)
the plaintiff
was an employee of an unincorporated members' club. While at
work on the club premises she slipped on
a
greasy patch on the
stairs and was injured. She therefore brought
an
action for
damages, alleging negligence and breach of duty, wherein she
named the honorary secretary and the chairman
of
the committee
as defendants whom she sued
''
on their own behalf and on behalf
of
all the other members
of
the club."
No
representation order was
applied for, under R.S.C., Ord.
16,
r.
9,
prior to the hearing, but
at
the trial application was made to the judge for such an order.
After hearing argument, Pileher
J.
delivered
a
judgment allowing
the order to
be
made though limited to those persons who were
members
of
the club at the date when the plaintiff sustained her fall.
The scope of the representative action is notoriously uncertain
and any judicial pronouncement on this topic is to be greatly
welcomed. But with all due deference, a doubt may
be
entertained
as
to whether the ruling of Pilcher
J.
is in line with previous
authority, and further
as
to whether the implications
of
that ruling
may not be more startling than appears at first sight.'
It
must
be
borne in mind that there are involved in cases of
club liability both questions
of
substantive law, and
of
procedure.
These two matters are quite distinct though from a practical point
of view they may be very closely connected.
As
regards the sub-
stantive issue, since an unincorporated club is not an entity known
to the law, and cannot be sued in its own name
(London
Associa-
tion
for
the Protection
of
Trade
v.
Greenlands
[lSlS]
A.C.
15),
the
question is, who is liable for the wrongful act
or
breach
of
duty?
Depending on the circumstances of the particular case this may be
the members of the committee,
or
some person such as
II
manager who
is
in control of the club,
or
possibly the whole body of members.
In the case of torts depending on vicarious liability, apart from the
liability of the actual wrongdoer, the question will resolve itself into
inquiring whose servant
or
agent the wrongdoer was at the material
time. On the other hand, where liability arises out of the owner-
ship
or
occupation of property,
as
in the case
of
nuisance
or
under
the rule in
Indmrnaur
v.
Dames,
the proper persons to sue will
I
For
a general examination of the scope of representative actions see the
"
Actions Instituted
by
or
Against
article
by
the anthor,,of this Note,
Unincorporated Bodies in
(1949)
113
M.L.R.
409
et
seq.
359
860
THE
MODERN
LAW
REVIEW
VOL.
16
normally
be
the occupiers of the premises in question.
If
there are
trustees in whom the property is vested, they may be the correct
persons to sue (subject of course
to
any right
of
indemnity they may
have against the persons on whose behalf they hold the property
*)
;
if there are no trustees it must be a question of fact as to who are
the occupiers of the premises.
Turning
to
the procedural question, the need for a representative
action will only arise if it is desired to sue the whole body of
members. What is important to note however is that it does
not follow, because
a
case for liability can
be
made out against the
members as a matter of substantive law, that this claim
can
necessarily be pursued by the machinery
of
ti
representative action.
The peculiar nature and limitations of
a
representative action
have many times been adverted to. Thus the persons represented
in the action are not actually parties thereto and have none
of
the
rights
or
liabilities of ordinary litigants and the judgment obtahed
is
a
representative one and
hot
a personal one, though
all
the
persons represented are
in
fact
bound
by
it
(see
Markt
Ltd.
v.
Knight
S.
S.
Co.,
Ltd.
[1910]
2
K.B.
1021
;
Walker
v.
Sur
[1914]
2
K.B.
930). For
this reason Ord.
16,
r.
9
insists on an
identity
of
interest between the parties represented.
So
far
as
the defendants
are concerned, this means in effect that there must be
som
com-
munity of interest in some subject-matter and that the claims against
the various defendants must
be
identical in the sense that there must
not be different defences available to each
or
any of them.
Accordingly it has been repeatedly doubted whether a representative
action will lie for
a
mere claim in damages, whether
in
contract
(Mark’s
Case,
supra),
or
in tort
(Mercantile Marine
Association
v.
Toms
[1916] 2
K.B.
243;
Hardie
v.
Chiltern
[l928]
1
K.B.
663).’
For
damages is
a
merely personal remedy and the caus$s of action
against, for example, each member of
a
club, are mere independent
actions for damages deriving from the same
or
similar sets of
circumstances. Hence the representative form of action has
hitherto been confined to such claims
as
actions for
a
declaration
as to rights arising out of a common subject-matter (see,
e.g.,
Edwwds
v.
Halliwell
[1950] 2
All
E.R.
1064)
or
payment of
a
debt which is sought to
be
recovered against some common fund
vested jointly in the members
of
an unincorporated society
or
club,
or
in trustees on their behalf
(Idmeal
Films
v.
Richards
119271
1
K.B.
374;
but
cf.
Barker
v.
rill~nson
[1937]
1
K.B.
463).
In
Campbell
v.
Thompson,
supra,
it seems
to
have been assumed
that all the members were joint occupiers of the premises and that
2
In
Wise
v.
Perpetual Trustee
Co.
[l903]
A.C.
139,
it was held that trustees
of
a
<:111b>
who
were liable under covenants
in
a
lease
of
which
they were
triistees, were entitled t,o be indcnlnified
out
of
any property
of
the club,
hut
Lad
no such right against tllc meiribers personnlly.
3
It has been doubted whether a represehtative action
would
lie
in
t,ort.
even
if
limited to
a
claim
for
an injunction:
London
Motor
Cab
Proprietors’
Associnfirin
v.
90th
Century
Press,
34
T.T,.R.
69.
JULY
1953
NOTES
OF
CASES
861
on that footing they had such a common interest as would sustain
a representation order.
It
is by no means clear from the report
on what evidence the members were treated as joint occupiers, since
club premises must often be not in the occupation of the members
as such but
of
the committee
or
other body
or
person controlling
or
managing the club. Even however on the assumption that the
members were joint occupiers and thereby had a community of
interest in defending the claim, the nature of the claim was still
a
personal one for damages against each and every member of the
club
at
the material time. In this connection it is noteworthy that
the learned judge himself emphasised this aspect of the claim
by
insisting that the representation order should be confined to the
members
of
the club at the actual date of the accident. Hence
if
the
claim had succeeded it would have involved not a jud-pent against
the common fund
of
the club itself but a personal judgment against
each and every member
of
the club at the material time.’ Yet to
succeed against each
of
those members it would be necessary
to
show negligence against every one of them and that each waa
liable for the whole of the damage. And it would surely be open
to each member to
seek
to avoid liability by showing that he was
not guilty of any personal negligence
’
or,
if negligence was imputed
to him vicariously, that the actual wrongdoer was not his servant
or
agent
at
the material time. The quantum of damage might
also vary as between different defendants, at any rate in cases where
the foreseeability of certain consequences was relevant
to
the
damages
or
to specific items of damage recoverable in the action.
The learned judge treated the liability
as
being one
of
pure
tort although he apparently regarded “the club” as being the
employer
of
the plaintiff as well as being occupier of the club
premises. The common law liability
of
an employer
to
his employee
for the safety of the premises on which the employee is working,
appears to arise out of an implied term in the contract of service
rather than out of tort (see per Lord Wright in
(1951)
67
L.Q.R.
at p.
533).
It
seems very improbable however that the cleaner was
the employee of the
2,300
members rather than of the committee
or
manager who presumably engaged her. And in this latter event
the committee,
or
manager would not normally have power to enter
into contracts as agent for the members
(see
Flemyng
v.
Hector
2
M.
&
W.
172
;
cf.
Bradley
Egg
Farm
v.
Clifford
[19431
2
,411 E.R.
378),
and it would always be open to a member to plead that he did
4
The plaintiff in fact lost, as she failed to establish negligence.
5
See
Barker
V.
Allanson
[1937]
1
K.B.
463. Note that in
Stone
v.
Bolton
[1951]
A.C.
850,
the question whether
B
representative action would lie
against the members of the club was never adverted
to
and it
is
not clear
whether the judgment
wae
regarded as against the members personally
or
merely against the club funds:
cf.
(
(1951)
14
M.L.R.
496).
6
Thus in the case of liabilitv
to
an invitee, it would he necessary
to
show that
t.he occupier knew
or
onght, to
have
known
of
the unnsual danger. And
knowledge
or
means
of
knowledge possessed by one joint occupier
would
not
necessarily be imputable to other joint occupiers.
862
THE
MODERN
LAW
REVIEW
VOL.
16
not authorise the making of the contract
(cf.
Steele
v.
Gourley,
8
T.L.R.
772;
Draper
v.
Manvers,
9
T.L.R.
73).
The remarkable implications of this decision are sufficiently
indicated by bearing in mind that the persons represented are not
parties to and take no part in the litigation. Hence a member
of
a
club who was abroad at the material time and knew nothing
of
the
action at any stage might find himself saddled with a personal
judgment for a heavy
sum
by way of damages in a claim which he
has had no opportunity
to
defend, Moreover the decision seems
to ignore the practical results
of
a judgment against the defendants.
For
although it is a personal judgment against each and every one
of
them, not otle of these, except the representative defendants,
is named on the record, and it is far from clear what machinery for
executing the judgment might
be
invoked,
or
how disputes are to
be resolved as to the identity
of
the members and their member-
ship at the material time. In partnership law, since a judgment
against the firm is a judgment against all the partners individually,
a
special procedure exists for enforcing such a judgment personally
against the individual partners
(R.S.C.,
Ord.
48a,
r.
S).
No
com-
parable rules exist in regard to unincorporated associations under
Ord.
16,
r.
9,
and
for
the very good reason no doubt that it was
never contemplated that a jud-pent obtained thereunder could
result in the execution of a judgment for damages against the
parties represented in their personal capacity. In the words
of
Buckley
L.J.,
in
Walker
v.
Sur
[1914] 2
K.B.
at
p.
936
:
“It
is
simply an action of debt against a large number of individuals and
no judgment could be obtained which would
be
representative
against all
of
them; there could only be a judgment individually
against each of them.”
It
may be said that this is an instance of hard cases making bad
law. In the course of the argument Pilcher
J.
observed
to
counsel
for
the plaintiff, that “the law should not require you to make
2,800
people defendants.” (See
The
Times,
March
4, 1953).
It
may well be however that, as a matter
of
substantive law, liability
in such a case as the present could be fixed on the committee
or
some
other body
or
person in control of the club premises without the
need for a representative action against the whole body of members.
It
does not appear from the report whether there were any trustees,
but even if there were none it is not clear why the plaintiff pre-
ferred to sue all the members rather than the committee. In this
connection the case of
Brown
v.
Lewis
(
(1896) 12
T.L.R.
465)’
seems to point the way. Alternatively the plaintiff might have sued
certain of the members as joint occupiers in their personal capacity
leaving them to claim any indemnity
or
contribution to which they
7
In
Brown
V.
Lewis
the action began in
a
representative form against the
members,. hut leave
to
amend
by
joining the members
of
the committee per-
sonally nas given during the hearing and judgment was given against
the
committee personally as being the persons primarily liable.
JULY
1953
NOTES
OF
CASES
368
might have been entitled from the other members. And lastly
there‘ remained the possibility of suing the person
or
body that
engaged the plaintiff as being her employer at the material time.
This case emphasises once again the unsatisfactory position in
regard to the liability of the members of an unincorporated club
whether arising out of contract
or
tort. In principle the only
effective way
out
of
the impasse would be to allow an action against
an unincorporated society to be brought in the name of the society
in any case where as a matter of substantive law the body of
members might
be
held liable, any judgment
so
obtained to
be
enforceable only against the common fund
or
other joint property
of
the society. Such a judgment might be obtainable without prejudice
to any liability established against any individual joined in the
action
(or
sued separately) in his personal capacity. This result
could of course only now be achieved by legislation.
DENNIS LLOYD.
THE DEFECMVE
MARRIAGE-AND
THE
CHILD
IF
a wife, after threatening
to
petition for annulment of her marriage
on the grounds of her husband’s incapacity, unsuccessfully pursues
to the Divisional Court a complaint of desertion and persistent
cruelty against him under the Summary Jurisdiction (Separation
and Maintenance) -4cts, she cannot then go back and have the
marriage annulled because
of
his incapacity. Such was the decision
of the
Court
of
Appeal (of Singleton, Birkett and Morris L.JJ.) in
Tindall
v.
Tindall
[1958] 1
All
E.R.
189,
and it is submitted that
the common sense
of
ordinary people would heartily agree, with
perhaps
a
murmuring disapproval
of
such a wife’s ability to compel
her husband to lodge
El5
security
for
the costs
o€
her appeal in the
Divisional Court, with little chance
of
its recovery.
But where approbation
of
a marriage is less emphatic, and a
child
is
concerned, questions
of
greater delicacy may arise. In
Slater
v.
Slater
[1958] 1
All
E.R.
246
(more fully reported in
[1958]
P.
68)
the wife knew before the marriage of doubts enter-
tained by her husband’s doctor about his procreative ability.
Three
years later, in early
1948,
she was upset to hear from another doctor
that the marriage had not been consummated, but told her husband
that she wanted not a “divorce” but a child. In April
of
the
following year they took charge of a boy of
2
whom they officially
adopted in September, and at precisely this time the wife also
fruitlessly underwent artificial insemination treatment from a donor.
Almost immediately after the adoption order she had a nervous
breakdown and received institutional care. In November,
1949,
after some conversation with a medical attendant during which she
spoke
of
contemplating
“
divorcing
”
her husband for incapacity,
she returned home, but not until February,
1951,
did she take legal
advice and learn that her possible remedy was nullity and not
364
THE
MODERN LAW REVIEW
VVL.
16
divorce. It seems
to
have been her husband’s conviction for a
crime involving dishonesty shortly afterwards that finally decided
her
to
leave him and petition for nullity, and the same Court
of
Appeal that had decided
Tindall
v.
Tindatl
held, reversing
Karminski
J.,
that she was entitled
to
a decree. Singleton
L.J.,
who delivered the judgment of the court, found that she did not
know of her legal remedy until November,
1949,
and distinguished
W.
v.
W.
119521
P.
152,
on the grounds that here
:
“if.
. .
the wife
petitioner did not know that she had a remedy for the wrong done
to
her, the adoption
of
the child did not amount to approbation
of
the marriage, nor had anything else up to November,
1949,
any such effect.”
The practical result achieved by the decision is probably desir-
able; both parties appear likely to be less unhappy unmarried than
married
to
each other, and the hapless adopted child may,
it
is
to
be
hoped, be placed in the care of those more interested in the happiness
of another than in the contemplation of their own neuroses. The sole
reference to him in the report is Somervell
L.J.’s
statement that in
1949
the wife was
“
still anxious to do what was right towards the
husband and towards the child they had adopted,” though she
seems
to
have left him for five months in
1950
to
stay with relatives
in Gibraltar.
But
the means by which this result was attained seem more open
to doubt. Surely,
on
general grounds, this case savours more of the
marriage that has completely broken down than
of
one that never
started? And more narrowly, not only is there here
a
finding of
ignorantia
juris
excusat
(all the facts were known), but even the
ignorance was both incomplete (since in
1948
the wife mas talking
to
her husband about
“
divorce
”)
and unnecessary (since solicitors
flourish in every town, and the wife was eventually put on the right
lines by the Citizens’ Advice Bureau).
It
was Denning
L.J.,
sitting with Somervell and Hodson
L.JJ.,
who, with his customary interest in the effect
of
court decisions,
and an instinct for the
mores
of the times, concentrated attention
in
Wiseman
v.
Wiseman
[1953] 1
All
E.R.
G01,
on the effect on
the child
of
a
void marriage.
It
is submitted, alas, that in the
present state of the law his contention that such
a
child may yet
be legitimate cannot be substantiated. In this case
a
wife was
allowed to appeal out
of
time against a decree nisi granted to her
husband, and the decree was set aside, because she had had no
notice
of
the proceedings, and the husband’s iailure
to
make
“
a
sufficient
or
candid
”
disclosure in applying for substituted service
was held to render that order voidable. The fact that in the mean-
time the husband had remarried and
a
child had been born
of
that
remarriage was held not to debar the court from setting aside the
decree absolute. Denning
L.J.,
towards the end
of
his judgment,
said
:
“
I
do
not think that this avoidance -ail1 relate back
so
as to
render the child illegitimate. The child was legitimate when born,
JULY
1953
NOTES
OF
CASES
365
and the doctrine of relation back has never been applied
so
as
to
render unlawful that which was originally lawful.”
For
this
proposition he cited an authority on a landlord’s right to mesne
profits on reentry after
a
breach of contract, and continued:
“When a marriage which
is
voidable is avoided, the avoidance as a
rule only speaks from its date.
It
does not relate back to the
beginning.” As authority for this he quoted two cases to the effect
that
a
decree of nullity in
a
voidable marriage does not automatic-
ally invalidate
a
previous separatim agreement, but he did not
refer to
Dredge
v.
Dredge
[1947] 1
All
E.R.
29,
which established
(until statute intervened) that the child of
a
voidable marriage
was
retrospectively bastardised on annulment. Moreover, the argument
was irrelevant since there was here no voidable, but
a
void
marriage. The Lord Justice continued:
“
It
was suggested
in
the
artificial insemination case,
1,.
v.
L.
[1049]
P.
211,
that the child
of a voidable marriage may, on its avoidance, become illegitimate.
That is not good law
as
it has been overruled by section
4
of the
Law Reform (Miscellaneous Provisions) Act,,
19a9.”
Here the
distinction between the void and the voidable marriage becomes
crucial, because the statutory provision (now the Matrimonial
Causes Act,
1050,
s.
0)
reads:
“
Where
a
decree of nullity is
granted in respect of a voidable marriage, any child.
. . .”
In
Wiscwian
V.
Wiseman
there was no decree of nullity of the second
marriage; as Denning
L.J.
himself said, once the decree of
dissolution of the first marriage was set aside, the second marriage
automatically became void (under the doctrine
of
De Reneville
v.
De
Reneuille
[I9481
P.
100).
The effect
of
the statutory provision is,
furthermore, expressly limited to the children
of
voidable marriages.
The conclusion, unsavoury but apparently inescapable, seems to
be that with
all
their skill and vdour, the judges who seriously
consider the effect of their judgments
on
society have not,
so
far,
discovered any adequate means of protecting the children of such
marriages. The legislature, while demonstrating
in
1949
that
determination finds no obstacle in parliamentary shortage of time,
grasped only half the nettle. Why was the traditional distinction
between the void and the voidable marriage retained?
In
the
present case, for example, the second wife, to be sure of her
position (and, even more important, that of her future child),
should, before marrying
a
divorced man, have inquired
(1)
whether
his petition for dissolution of the previous marriage had been
defended, and
(2)
if not, whether notice had been properly served.
The insistence on such an inquest into old unhappy things contrasts
strangely with the law’s benevolence, in
Slater
v.
Slater,
towards
unnecessary ignorance about future possibilities. Even apart from
the present case, do not children of some other cases of inadvertent
bigamy call for protection
?
If,
as seems probable, only the legislature can now remedy
the situation. surely an Act to render legitimate the children of
866
THE MODERN
LAW
REVIEW
VOI,.
16
void marriages, at least one party to which honestly and reasonably
believed the marriage to be valid, is now overdue and should be
most insistently demanded.
0.
M. STONE.
THE
PENHAS
CASE:
MIXED
AND
UNMIXED
MARRIAGE
IN
SINGAPORE
IN
February of this year Lord Oaksey delivered judgment in Priry
Council Appeal
No.
21
of
1951,
a case which is due to go down
in legal history, at least in Singapore, as the
Penhas
Case.’
The
Privy Council, in dismissing the appeal of Isaac Penhas from
a
Singapore High Court judgment, found that the appellant’s late
brother, Abraham, a Jew of Iraqi origin, domiciled in Singapore and
a naturalised British subject, had contracted a valid marriage,
dating from the end of
1937,
with a Chinese woman, Tan
So0
Eng,
a British subject domiciled in Singapore. The judgment makes it
possible for Tan
So0
Eng to apply for letters of administration of
Abraham Penhas’s estate as his widow.
The marriage came about in the following manner: Abraham
Penhas, having been refused permission by his father, a well-to-do
business man, to marry
a
Jewess whom he had met in England in
1936
(he was then
39
years of age), in the next year employed a
Eurasian woman in Singapore to find him a wife. As a result, he
was introduced to Tan
So0
Eng, a widow, and her mother.
It
was
finally settled that a wedding ceremony would be held in December,
1937,
“
according
to
Chinese rites.” The marriage could not take
plaze in a synagogue; Tan
So0
Eng was not at that time
a
Christian,
and the Christian marriage legislation did not, therefore, apply
;
some sort of a Chinese ceremony seems to have been hit upon as a
way of performing a rite of marriage. A few days before Christmas,
friends and relatives of the bride gathered in the house which she
had rented with the money supplied for that purpose by Penhas,
who himself arrived accompanied by a Chinese gentleman and two
Jewish friends. The Chinese gentleman conducted the ceremony.
We worshipped the Heavenly God
and
I
worshipped with Joss Sticks and he asked
us
each
separately whether we were willing
to
be man and wife, and we
both said
‘
Yes.’
Deceased put
a
handkerchief over his head
while
I
worshipped.
.
. .
Deceased told me it was their custom
to put a handkerchief on the head. He raise6 his right hand the
whole time while
I
was worshipping.
I
was murmuring a prayer
to Heaven for long life.
I
could not understand what he was
murmuring,
it
was in his language. After worshipping, his
two
Jewish friends shook hands with me and deceased also shook
hands with me and kissed me.”
The couple then went to pay their respects, in Chinese fashion, to
the bride’s mother, and the ceremony ended with a feast and a final
blessing from the Chinese gentleman brought by the groom.
“
We stood before him.
1
Isaac
Penltas
v
Ton
Son
Eitq
[l9571
4 C
304.
JULY
1963
NOTES
OF
CASES
867
In this ceremony we have a fascinating example of the mingling
of nuptial elements in
a
polyglot and multicultural colony. On the
face of it, it might seem a matrilocal Chinese wedding augmented
by a few Hebraicisms. But the mixture of things Jewish and
Chinese is legally only of marginal interest, for it is the consensus
which the ceremony implies, taken together with the subsequent
cohabitation until Penhas’s death at the hands of the Japanese in
1912,
and the raising of two children of the union-baptised as
Christians to add to the colourful compromise of cultures-which
has made this a good marriage in law. The appellant denied the
possibility of cohabitation (saying that normally Penhas did not
sleep away from his father’s house), and alleged that nothing was
known of the union to the deceased’s own family. The courts,
however, have found a valid marriage, applying the doctrine
of
common law marriage.
In Singapore there are special legal provisions for the marriage
of Muslims (Malays, Indians, and Arabs) and Christians (of many
ethnic groups). Civil marriage legislation has been in force only
since
1941.
A long series of cases has established that the Chinese
are polygamous and that customary forms of marriage,
for
both
primary and secondary wives, have legal validity, although there
has been much debate about the nature of these customary forms.
Furthermore, the courts have recognised the possibility of non-
Chinese women (even Christian, it has been argued) marrying
Chinese men by Chinese forms as secondary wives. Apart from
Carolis
De
Silua
v.
Tim
Kim
(1902),
which is a Selangor (one of the
Malay States) case, there appears
to
be no record of a ruling
on
the possibility of
a
Chinese marriage between a Chinese woman and
a
non-Chinese man. The Selangor marriage was upheld on the
grounds of intention, cohabitation, and repute.
As
far as the
Colony of Singapore is concerned, the
Penhas
Case
shows for the
first time the ability of persons of different religious and cultural
backgrounds to enter into valid marriage together on the basis
of
common law marriage principles.
However, although the judgment in this case relates to a mixed
marriage and, as a result, may seem to have prime significance for
other inter-ethnic unions in the colony which are not formed under
legislated provisions, it may
be
said that the application of the
concept of the common law marriage has just as much relevance for
marriage between Chinese and Chinese. Certainly, recent judgments
locating marriage in the realm
of
consensus must have an important
bearing on the old problem of the Chinese secondary wife
or
con-
cubine. Up to
1949,
it
would seem, it was usual
for
the Colonial
courts, when they were called upon to decide whether a Chinese
woman was
or
was not a secondary wife, to apply the three tests of
intention, cohabitation, and repute.
For
example, in
19&7
in Penang
(which has the same legal background as Singapore) Carey
J.
refused to find a marriage where the woman claimed to be the
868
THE MODERN
LAW
REVIEW
VOL.
16
wife of
a
deceased Chinese. Cohabitation 3nd intention to form
a
more
or
less permanent union appeared to be established, but the
judge could not satisfy himself that there was repute.
(Tan =Ih
Bee
v.
Foo
Koon
Thye
and
Another,
Law Reports’of the Malayan
Union,
1947.)
Yet in June,
1949,
contemporaneously with the
Penhas Case
in the Singapore High Court, Murray-Aynsley
C.J.
in Singapore found
a
Chinese secondary marriage simply
on
the
basis of consensus, invaking the English concept of the common
law marriage.
“
Held,
. . .
that for the legal requirements of
a
marriage
with
a
t’sai
[principal wife]
or
a
t’sip
[secondary wife], the
law of the Colony merely requires
a
consensual marriage, that
is, an agreement to form
a
relationship-that comes within the
English definition
Tjf
marriage
. . .
;
that the requirements of
a
ceremony, of a formal contract and of repute of marriage
are evidentiary only and not essential to the acquisition of
the status of
a
t’sip.
. .
.”
(Er
Gek Cheng
v.
Ho
Ying Seng,
The Singapore Law Reports,
1949.)
The doctrine of common law marriage was applied in the
Penhas Case,
but their Lordships’ judgment in the Privy Council,
while finding that the ceremony performed
“
was indubitably
intended by the parties to constitute
a
valid marriage,” admitted
the possibility of doubt
on
the question whether the marriage
so
intended was
“
a
common law monogamous marriage
or
a
Chinese
polygamous marriage.” However, their Lordships held that
“
the
evidence
as
it stands sufficiently proves
a
common law monogamous
marriage.” One of the implications of this seems to
be
that
arguments in the Singapore courts that the doctrine of the common
law marriage ought to be applied to Chinese secondary marriag?s
may have to face the objection that the common law marriage
enshrines monogamy. However, it seems unlikely that there will
be
a
retreat from Murray-Aynsley C.J.’s position and probable
that Chinese secondary marriages will henceforth
be
judged in
terms of consensus. This is not Chinese law; far from it.
It
is
not English law. But it is law made by English judges struggling
with the problem of adapting the law of England, as
it
was
at
the
time of its importation into the Colony, to the needs of a non-
European population. Of the
1807
Charter of Justice the first
Recorder of Penang said that it
(6
. . .
secures to all the native subjects the free exercise
of
their religion, indulges them in
all
their prejudices, pays the
most scrupulous attention to their ancient usages and habits.”
A
century and a half her one of the ancient usages and habits of
the natives of England takes its place, somewhat incongruously it
may be thought, in the law
of
the Colony
of
Singapore.
MAURICE
FREEDMAN.
Jar
1958
NOTES
OF
CASES
869
SELF-SERVICE
SHOPS
AND
THE
LAW
OF
CONTRACT
TILE
decision of the Court of Appeal in
Pharmaceutical Society
of
GTeat Bn’tain
v.
Boots
119533 1 Q.B. 401,
affirming the judg-
ment of Lord Goddard
C.J.
[1952] 2 Q.B.
795,
provides welcome
authority for the familiar and elementary proposition that a display
of
goods in a shop is not an offer but only an invitation to treat.
But in extending this proposition to self-service shops
it
has been
endowed with an unfortunate element of rigidity.
The case arose under section
18
(1)
(a)
(iii) of the Pharmacy
and Poisons Act,
1933,
which makes it unlawful
to
sell certain
poisons unless the sale is effected by
or
under the supervision
of
a
registered pharmacist. Boots, at one
of
their branches, had
adopted a self-service system
so
that a customer could there help
himself to goods, including poisons covered by the Act, which were
displayed on shelves with
a
conspicuous indication of the price.
The customer was then required to take his purchases to the cash
desk by the door, where a qualified pharmacist was in attendance
scrutinising and supervising each purchase. The plaintiffs main-
tain& that this practice violated the Act since the registered
pharmacist could intervene only after the sale had been effected.
Self-service sales, in their opinion, differed from those through shop
assistants in that the offer to sell was made by displaying the goods
and was accepted by a customer as soon as he had selected the
goods and before he appeared at the cash desk. Lord Goddard
rejected this argument.
“
It
is a well-established principle,” he
said, “that the mere exposure of goods for sale by a shopkeeper
indicates
to
the public that he is willing to treat but does not
amount to an offer to sell.
I
do not think
I
ought to hold that
that principle is completely reversed merely because there is a
self-service scheme, such as this, in operation.” Consequently he
gave judgment for the defendants.
Whether a display of goods amounts to an invitation to treat
or
to an offer must depend upon the intention of the shopkeeper, and
the principal reason for assuming that shop window displays are
intended only as invitations to negotiate is that there might be a
larger number of customers willing to buy than the shopkeeper
would be able to supply. This
was
explained by Lord Herschel1 in
Graingsr and
Son
v.
Gough
[lS96]
A.C.
325,
although that case
was concerned with an advertisement by catalogue rather than by
window display. The situation is clearly different where
goods
are
displayed in bulk on the counter
or
shelves of a shop, since the offer
disappears when the last item of stock has been sold. Lord
Herschell’s argument would, therefore, justify different treatment
of a display
of
a sample in a shop window
or
show case
and
of
a
display of stock on the counter
or
shelves. But Lord Goddard
refused to draw this distinction.
It
would mean that “on the
customer picking up the article the property would forthwith pass
VOL.
16
24
8'70
THE
MODERN
LAW
REVIEW
VOL.
16
to him and he would be able to insist upon the shopkeeper allowing
him to take it away, though in some particular cases the shop-
keeper might think that very undesirable. On the other hand, if
a
customer had picked up an article, he would never be able to
change his mind and to put it back." This, as Romer L.J. added,
would quickly destroy the popularity of these shops.
But, with respect, it cannot be said that because a display
is
considered to be an offer a customer must be treated as having
bought an article as soon as he has picked it up. Although an offer
can be accepted by conduct, the offeree's action must clearly
and finally demonstrate the intention to accept as, for instance,
the act of boarding a bus,
or
inserting a coin in an automatic
ticket machine. The picking up of an article displayed is capable
of many explanations, and whatever view be taken
of
the meaning
of the display the customer should always be free to explain that
he had picked up the article merely to examine it,
or
that he had
taken it reserving the right to put it back and substitute another
article for it.
It
must also be remembered that the customer would not be
able to take the article away before he had paid for it.
"
Passing
of
the property and right to possession are two different things," as
was shown by Hallett
J.
in
Dennant
v.
Skinner
[1948]
2
K.B.
164.
A similar confusion of the making of a contract and its performance
appears in Lord Goddard's statement that since the offer to buy
is made by the customer
"
there is no sale effected until the buyer's
offer to buy is accepted by the acceptance of the price."
It
is, of course, true that the shopkeeper would not be able to
prevent the acquisition of goods by undesirable customers although
he might wish, and in the case of poisons he ought to be able, to
prevent this. But it is begging the question to assert that he has
done what he ought to do, just because he ought to
do
it.
The intention implied in
a
display of goods can be ascertained
by putting the question in terms
of
freedom of contract, the
right of the shopkeeper to refuse a customer. When Baron
Parke in
Timothy
v.
Simpson
(1834)
6
C.
&
P.
499
at
p.
580,
insisted that a shopkeeper could refuse to sell goods advertised in
the window and could turn out a customer who insisted on buying
them, he clearly vindicated the shopkeeper's freedom of contract.
More recently, Sir Percy Winfield has asserted that
"
a shop is
a place
for
bargaining, not for compulsory sales."
Bargaining in the full sense
of
the word does not take place in
most
shops
and compulsory sales have now become common to an
extent which would have alarmed Baron Parke. Thus there can
be
little doubt that a shopkeeper cannot refuse to sell rationed
goods,
certainly
not
to
a
customer registered with him.
Thc
con-
text
of
rationing explains Lord Chief Justice Caldecote's remark
in
WintclA,
"
Snxx
Aspects
of
Offci
and
\(c(ptance,''
5.5
I.
(a
R
499.
at
11.
518
JULY
1953
NOTES
OF
CASES
371
IViZes
v.
illaddison
[1948]
1
All
E.R.
315
at p.
317,
that
“
a person
might be convicted
of
making an offer of
an
article of food at too
high a price by putting it in his shop window to be sold at an
excessive price.” Many people will sympathise with the customer.
in the case before Baron Parke, who was turned away arbitrarily
and not very politely, and there is an even stronger feeling of resent-
ment against the practice of selling commodities in short supply to
specially favoured customers from
“
under the counter.” Restrir-
tions of the freedom
of
contract
of
shopkeepers are, therefore,
supported by opinion even beyond the extent
to
which they have
been established in law.
But freedom
of
contract cannot be curtailed only by legislation,
it
can also be surrendered voluntarily. Thus, where contracts are
made through automatic machines, the power to turn away
customers is lost and the parties may reverse the character
of
offeror and offeree. There is some doubt as to whether
it
is the
passenger
or
the owners of the railway who make the offer when a
ticket is sold at a booking office.’ But where a ticket is obtained
from an automatic machine and generally where goods are
sold
through automatic machines, it is certain that
it
is the act of
putting the coin into the machine which
“
is the acceptance
of
a
standing offer made by the owner of the machine.”
It
might be argued that these cases are distinguishable from
self-service shops since in the case of machines not only the selec-
tion of the goods but also payment are made without the agency
of an assistant. But this argument again confuses the elementary
distinction between entering into a contract and performing
it.
The fallacy
of
this argument is, moreover, clearly demonstrated
by
Chapelton
v.
Barry
U.D.C.
[1940]
1
K.B.
532.
Slesser
L.J.
there explained that, the placing
of
a pile of deckchairs
so
that
the
public
could help themselves t,o them constituted an offer.
The institution
of
self-service in that case thus involved
loss
of the
right to turn away customers, even although collectors were
employed to receive payment, and the situation, it is submitted, is
indistinguishable from self-service shops. This system is adopt,ed
because it is thought to possess advantages
over
more orthodox
trading methods, such as economy in overheads, and a general
increase in efficiency and prod~ctivity.~
To
secure these important
commercial benefits a merchant might well be willing to surrender
his freedom to refuse customers.
But the right
to
sixrender the freedom
of
choosing one’s
2
rktif,??:
P.
0.
N.
RIJ.
(18561
5
F:l.
R:
131.
8fiO
III~~I~c~.
a-
\\;I<
pniii:cd
0111
in
file
dissent,ing
judgment
of
Crornpton
J.,
that
a
display
111
a
fihop
window
mitst
I)c
considered
to
be
an
offer.
It
would
alsn
be
diffictilt
to
resist
this
conclusion
if
Wurloiu
v.
Ilarrison
(1856)
1
E.
&
h;.
29.7, IS supported.
3
I’ollocli
oii
(‘ontract,,
13th
ed..
p.
9.
4
See
tkw
Report
of
t.hr
Anglo-.irnerican C‘onncil on
I’rodiiclivity.
discussed
tit
The
Timcs
iienspaper
of
Xowrnber
5,
1952,
and
Thr
Obscrvrr
of
?iovcmlwx
2,
1952.
372
THE
MODERN
LAW
REVIEW
VOL.
16
customers is subject to limitations as much as freedom of contract
in general. Such limitations, depriving a merchant of the right
to
surrender his freedom of choice, appear when retail sales are
controlled by legislation. The control of the sale of intoxicants by
the Licensing Laws compels publicans to retain the power to refuse
customers.
It
would certainly be difficult to operate the self-service
system in public-houses,
or
to employ it for the sale of rationed
goods.
It
is true that the poisons with which the decision in
Pharmaceutical Society
01
Great Britain
v.
Boots
was concerned
were not dangerous
so
that there might be no immediate risk in
allowing free access to them. On the other hand, a customer might
consume any poison which he had selected before coming to the
door to pay for it, just as in some self-service restaurants the
customer consumes his food before he pays for it.
If
this possi-
bility was contemplated and approved by the Poisons Act it seems
difficult to understand why this Act, in section
22,
should have
forbidden the sale even
of
non-dangerous poisons by automatic
machines,
or
why indeed there should be any control over the sale
of non-dangerous poisons.
If
effect is to be given to the control instituted by this Act, the
self-service system should not be allowed to operate in the case of
poisons covered by the Act;
or,
at least, it should be necessary
to
exhibit prominently
a
notice warning customers that the goods
displayed on the shelves of the chemist’s department could be
acquired by them only after they had submitted their selection to
the pharmacist in attendance for inspection.
J.
UNGER.
ILLEGAL
PERFORMANCE
OF
CONTRACT
THERE is authority, both old and new, for describing as illegal a
contract which though legal in its inception has been performed
in an illegal manner by one of the parties. Thus, in
1822,
Best
J.
stated that where
a
contract is illegally performed “there is no
legal contract
”
(Bensley
v.
Bignold,
5
B.
&
Ald.
335,
342);
and
a century later’ in
Anderson
v.
Daniel
[1924]
1
K.B.
138,
where
a
fertiliser was delivered without the invoice required by statute,
Bankes L.J. concluded that
“
the contract
of
sale is illegal,” and
Scrutton
L.J.
expressly agreed with him.’ Although Bankes L.J.
there admitted that it was unnecessary to decide whether the
contract was illegal
ab
initio,
and both Scrutton and Atkin L.JJ.
emphasised that it was the performance that
was
illegal, the
traditional terminology was once more employed in
II.
B.
1
This view of the effect of
a
failure to deliver the invoice required
Iiy
the
Fertilisers, etc., Act,
1920,
was accepted by the parliamentary draftsman
on
the occasion
of
the amendment of that Act, for
s.
1
(2)
of the amending
Act of
1926
expressly provides that such failure
’‘
shall not iii%.alidate a
contract
of
sale.”
JULY
1953
NOTES
OF
CASES
873
Viennese Fashions
v.
Losune
[1952]
1
All
E.R.
909,
where
Evershed
M.R.
held that a similar failure to deliver a statutory
invoice “tainted the contract” (pp. 912
F,
G,
913 A), a con-
clusion reached also (p. 913
B)
by Jenkins
L.J.,
who stated that
the illegal performance
“
sufficed to turn it into an illegal contract
”
(p. 913
G),
so
that “that course
of
events must taint the whole
contract with illegality
”
(p.
914). In the light of these dicta
it may therefore be suggested with respect that not the least merit
of the judgments delivered in the Court of Appeal in
Marles
V.
Trant,
MacKinnon
Third
Party
[1958]
2
W.L.R.
564,
is
a
new-
found accuracy of terminology, for emphasis is laid in all three
judgments upon the fact that where such statutory invoice is
lacking the contract itself is and remains legal, the illegality being
confined to the performance
:
see
per
Singleton L.J. at p.
569;
Denning L.J. at pp. 570-1; and Hodson
L.J.
(diss.) at p. 575.
In view of the number of occasions upon which delivery of gods
must today be accompanied by an invoice
or
similar document, it
is
a
matter for congratulation that the courts have at last reached
the position stated by Pollock
(Contracts,
13th ed., p. 346) in the
words
:
“
The fact t,hat unlawful means are used in performing an
agreement which
is
prima facie lawful and capable of being lawfully
performed does not of itself make an agreement unlawful.”
In
Marles
v.
Trant,
however, the court’s unanimity in the
matter of terminology did not extend to the conclusion reached.
The plaintiff having recovered damages from the defendants
for
loss arising from their misdescription of seed which they had sold
him, the defendants claimed an indemnity from the third party
who had supplied them with the seed under the same misdescnp-
tion, but Lynskey
J.
rejected this claim on the ground that it
could not be established without proof that they had illegally
delivered the seed (to the plaintiff) unaccompanied by the
particulars required by the Seeds Act, 1920.
It
is clear that the
defendants’ cause of action against the third party did not require
reference to this illegality and that they were entitled to at least
nominal damages. But were they entitled to more? Their claim
as pleaded was for special damages arising from the resale, and
Hodson L.J. concluded that they could not otherwise
“
prove
their damages when those damages are to be measured by reference
to a contract illegally performed by them.” To this, several
answers were vouchsafed, but the measure of reliance placed upon
each by the majority of the court
is
not clear.
(i)
It
was suggested that the defendants were not required to
refer to the sub-contract, in that, by
S.
G.
A.,
s.
53
(2)
they were
entitled to the estimated loss directly and naturally resultinz from
the third party’s misrepresentation and, since a resale was within
the contemplation
of
both parties, damages must be assessed on
the basis of the loss which would flow from such contemplated
eventuality. Singleton L.
J.
rejected this claim
for
general damages
374
TEE
MODERN
LAW
REVIEW
Vot.
16
on the ground that it was not put forward at the trial. But would
it have succeeded had it been properly pleaded?
It
would appear
not. Singleton L.J., relying on
a
dictum of Devlin
J.
in
Biggin
v.
Pemianite
[1951]
1
K.B.
422,
436,
suggested that where a resale
has actually occurred damages cannot be claimed without reference
to the resale which has in fact taken place; while Hodson
L.J.
rejected the claim
for
general damages (at p.
576)
on the ground
that “this would enable the defendants to reach by
a
circuitous
route
the goal from which they are barred by the illegal perform-
ance of their contract.”
It
would appear, therefore, that, not-
withstanding Singleton L.J.’s remark that
“
the third party had
nothing to do with the contract between the plaintiff and the
defendants,” all members of the court accepted Denning
L.J.’s
conclusion (at p.
571)
that the defendants had to prove their
contract with the plaintiff.
(ii)
It
was suggested that the defendants’ claim did not, how-
ever, require
a
reference to the illegality in their performance of
the sub-contract. Hodson
L.J.
admits that the illegality was
“
in
a
sense irrelevant,” while Denning
L.J.
remarks that it did not
make
‘‘
any practicaI difference
”;
but
it
is
Singleton L.J. who
appears to make this
his
ratio decidendi,
for he concluded that
“
unless either
(1)
the contract was
an
illegal contract,
or
(2)
the
damage resulted from the omission
”
[to supply the statutory
particulars] such illegality was irrelevant,
so
that where,
as
here,
the loss incurred had nothing to do with the illegality, the illegality
may be ignored.
(iii) The conclusion reached by Denning L.J. goes further,
for
the learned Lord Justice decidcd that, even if
a
reference to
the sub-contract and to its illegal performance were required, the
defendants’ lack of culpability would prevent the operation of the
maxim
ex turpi causa non oritur actio,
for this was
a
case
“
where
a
man can be guilty of
a
crime without any moral culpability at
all,”
so
that it could not be said that he was “seeking to get
reparation
for
the consequences of his own culpable crime.”
The decision reached in
Marles
V.
Trant
may be welcomed,
‘‘
because,” to borrow the words of Hullock
B.
in
Tyson
v.
Thomas
(1825)
McC1.
k
Y.
119, 128,
“at the least, the [third party’s]
defence does not seem founded on
a
very nice feeling”; but, as
Singleton L.J. ignored the defendants’ illegality on the ground that
it
was non-productive, while Denning L.J. rejected
it
on the ground
that it was non-culpable, it is perhaps idle to speculate upon what
ratio decidendi
will eventually be attributed to the case.
J.
A.
COUTTS.
HIRE-PURCHASE
AGREEMENTS
AND
PENALTIES
THAT by-blow of the Factors and Bills of Sale Acts, the modern
hire-purchase agreement, usually contains
a
minimum hiring clause
JULY
1963
NOTES
OF
CASES
a75
requiring the hirer to pay not less than
a
certain proportion of the
total hire, notwithstanding return of the goods before such an
&mount has become due as instalments
;
the goods may be returned
on the hirer’s volition,
or
may be repossessed by the owner, and the
latter act may
be
authoriseci under the agreement on an event
(such
as
the death of the hirer) which is legally neutrcl,
or
an event
(such as failure to pay hire) which is
a
breach of the agreement. The
Court of Appeal has previously held that when the clause operates
on an event not constituting
a
breach
of
the agreement, it is un-
affected by the equitable doctrine
of
penalties
;
Assoc.
Distribs.,
Ltd.
v.
Hall
[I9381
2
K.B.
83.
It
has now held in
Cooden
Engineering
Co.,
Ltd.
v.
Stanford
[l95a]
1
Q.B.
86
(Jenkins
L.J.
diss.) that when operating on a breach, minimum hiring
clauses
do
come within the scope
of
the penalties doctrine; the
clause
in
question was held to be unenforceable because it required
an unreasonably large payment. This decision gives your Aus-
tralian correspondent subdued satisfaction, because it upholds a view
stron.gly pressed by him in
an
article in
(198G)
10
AustraZian
Law
Journal
167.
On the authorities then available (reported chiefly
in
textbooks on hire-purchase law and nowhere else) the view was
somewhat heretical, and the opposing view was argued with equal
vigour by your correspondent’s colleague
at
the Victorian
bar,
Mr.
R.
L.
Gilbert, in
12
Australian Law Journal,
at pp.
189,
198.
It
is
a
pity that the researches of counse! and court on the
Cooden
Ecgineering
Case
did not extend
to
these articles, which raised
questions
of
legal history and social policy not adverted
to
by the
Court
of
Appeal.
Your
correspondent’s satisfaction is subdued
because this has ceased to be an active issue in Australia, where
legislation of the six states has long since made minimum hiring
clauses unenforceable and given the courts a degree of control
over
the operation
of
hire-purchase agreements comparable with that
which the Court
3f
Chancery established over mortgages. The
English Hire Purchase Agreements Act,
1988,
ss.
4
and
5,
likewise
operates to protect hirers against the effect of minimum hiring
clauses, but section
1
inscrutably restricts the protection to
agreements concerning goods
of
limited value-in the case of
motor-vehicles,
250
and Imder. The six Australian Acts, besides
putting no monetary limit on their application, provide
a
bewildering
variety of protections for hirers and even a few
for
owners. Perhaps
the most absurd extremes of tenderness (intended to benefit hirers,
though just
as
likely to benefit owners)
is
that in the Queen9land
Act of
1933,
s.
15,
requiring hearings to be
in
cainera,
unless other-
wise ordered by the court. But without going to such extremes, the
Mother of Parliaments might well adopt some of the Australian
ljrovisions, and should certainly consider abolishing the limitations
of
the
1988
Act,
or
at least bringing them into line with the march
of
inflation. The Australian
Arts
are titled
“
Hire-Purchase Agree-
ments Acts” and can readily
he
discovered by consulting the
876
TEE
MODERN
LAW
REVIEW
VOL
16
cumulative alphabetical tables of Acts in force which appear
in
the
annual volumes of all the state statutes, excepting those of
Tasmania. The latter state’s volumes do not provide this handy
reference
;
the relevant Act there is
194844,
p.
209.
GE~FFREY
SAWER.
MASTER’S
LIABILITY
TO
SERVANT’S
WIFZ
FOR
INJURY
DUE
TO
SERVANT’S
NEGLIQENCE
THE
problem which was before the Court of Appeal (Singleton,
Denning and Hodson L.JJ.) in
B~oom
v.
Morgan
[1958]
I
Q.B.
597,
can
be summarised in one sentence:
Is
the employer of a
married man liable to the man’s wife for the husband’s negligence
in the course
of
his employment? The court,
afiming
Lord
Goddard
C.J.
119521
2
All E.R.
1007,
answered the question
in
the amative. This decision will undoubtedly meet with general
approval. Oddly enough, there was only one English precedent,
Smith
v.
Moss
[l940]
1
K.B.
424,
a
very short judgment of
Charles
J.
who arrived at the same result.
In
the circumstances,
the
court
relied much
on
American and Australian authorities.
Such difficulties as arise in connection with the instant case are
not to be found in the realm of legal policy, but at the lower level
of legal technique. By section
12
of the Married Women’s
Property Act,
1882,
“no
husband or wife shalt be able to sue the
other for
a
tort.” Where is the flaw in a chain of reasoning which
consists of these
links
:
(1)
a master is liable
for
his servant’s conduct in the course
‘
of his employment only
if
the servant himself is liable
therefor as
a
tort;
(2)
a man cannot be liable to his wife in tort;
.
(8)
hence the master cannot be liable for a tort committed by
Lord Goddard
C.J.,
decided the case
on
the ground that the
first
of
these propositions was wrong, and the three members of
the Court of Appeal agreed with him. The wrongly so-called
“
vicarious
”
liability of the master is not a liability imposed upon
X
for the tort of
Y.
As Denning L.J. said,
it
is not “a sub-
stituted liability whereby a
person
who
is
not morally answerable
is made responsible for the liability of another.
. . .
The reason
for the master’s liability
. . .
is the sound moral reason that the
servant is doing the master’s business, and it is the duty of the
master to see that his business is properly and carefully done.”
Although sometimes (not always) the mt ster’s liability hinges upon
the negligence
of
the servant, that liability is, since the master
cannot exculpate himself by pleading his own diligence, in fact a
species
of
strict liability, and, as Lord Gddard pointed out, com-
parable to that
of
the owner of danger’
us
things. The employer
of a servant creates a risk that the servant may do harm in the
the servant against his wife?
JULY
1953
NOTES
OF
CASES
877
course of his employment. This view is
in
accordance with Holmes’ historical analysis in the First Chapter
of
The
Common
Law.
To make the master liable
it
is enough that the servant has
acted
negligently
in
the course of his employment, whether
or
not, in doing
so,
he committed a tort.
‘6
Acting negligently
”
in this context means
acting carelessly in violation
of
a moral duty recognised by law,
although,
as
in the present case, the law may refuse
to
attach to this
recognition the sanction of delictusl liability. The servant owed
to his wife the same moral duty to be careful that he owed to
everyone else
or
even, as Singleton L.J. thought,
a
special duty
in virtue of his common law liability
of
maintenance. Hodson L.J.
emphasised that the absence of substantive liability did
not
mean
that the husband was
not
“in
breach of duty.” Duty which is
predicated upon
a
moral
norm
recognised by law
iti
different from
liability which
is
one form of sanction the law may attach to the
norm.
The absence of this sanction does not indicate the absence
of the norm, and negligence is a concept which transcends the law
of tort.
On
the other hand, however, such liability may exist
although the law of procedure prohihits its enforcement through
a
particular kind of action. The classification of rules concerning
liability as
“
procedural
”
or
‘‘
remedial
”
is apt to lead to injustice
and to confusion as students of the conflict of laws
know
only too
well from cases such as
Machado
v.
Pontes
I18971
2
Q.B.
281.
The line of reasoning which was the basis of the decision
of
the
Lord Chief Justice and approved by the Court of Appeal was thus
a clarification
of
the master’s liability for the servant’s negligence
(and, incidentally, an important contribution to analytical juris-
prudence).
It
was sufficient to support the decision.
If
the
first
of the three propositions stated above is wrong, the employer
is
liable whether
or
not the second proposition is right,
Le.,
whether
or
not, as a matter of substantive law, the servant can commit
a
tort against his wife. The decision itself is compatible with
the
view that the spouses are not only precluded from suing one another
in
tort, but that, as a result of the survival of the
“
unity
”
rule,
they cannot be mutually liable in tort. Indeed, Lord Goddard
and Hodson
L.J.
were explicit
on
the point that the substantive
immunity
or
disability had survived the
1882
Act. The
Lord
Chief Justice referred to
Phillips
v.
Bamett
(1870)
1
Q.B.D.
486,
to demonstrate the meaning of the substantive common law rule.
In
an article in
Vol.
15,
p.
183
of this
Review
the present writer
submitted that modern cases such as
Chant
v.
Read
[1989] 2
K.B.
286,
and
Drinkwater
v.
Kimbar
[1952]
2
Q.B.
281,
can
be
explained only
on
the basis that, regrettable though it may be, the
common law rule survives.
If
a
wife
was
precluded
only
from
suing
her husband
for
torts committed during marriage while, as a matter
of substantive law, Re was liable, the principle of
Curtis
v.
Wllcoa:
El9481
2
K.B.
474,
would apply
to
postnuptial
as
it
applies to
For
this
risk
he is liable.
3’78
THE
MODERN
LAW
REVIEW
VOL.
16
prenuptial torts and she could protect her acquired substantive
right as her
“
property
”
by an action. The continued existence
of the “unity” rule was cogently demonstrated by Professor
Glanville Williams in this
Review
(1947),’Vol.
10,
p.
16.
It
would have been unnecessary to revert to this point but for
the fact that, in the instant case, Singleton and Denning
L.JJ.
based their decision not only on the irrelevance of tort liability
between husband and wife but also on its existence,
i.e.,
on the
view that the second of the above-stated propositions was wrong.
Denning
L.J.
said that the fiction of unity of husband and wife had
“
no
longer
a
place in
our
law
”
and that such disabilities as existed
rested only on the wording of section
12,
i.e.,
that they were purely
procedural, comparable
to
those imposed by the Statute
of
Frauds.
The husband’s “immunity is a mere rule of procedure and not
a
rule of substantive law.
It
is an immunity from suit and not an
immunity
from
duty
or
liability. He is liable to his wife, though
his
liability is not enforceable by action.
.
.
.”
And, although
Phillips
v.
Barnett
would have to be decided today as it was in
1876,
this was
so
nn the ground that “the immunity from suit
conferred by section 12, once it has attached, is not lost by
divorce.”
It
is, however, with respect, not easy to see how a
purely procedural disability imposed upon the spouses as spouses
can attach, if, at the time
of
the commencement of suit, they are
no longer husband and wife.
It
will be observed that, in the judgment of Denning
L.J.,
‘‘
duty
”
and
“
liability
”
are almost identified, and this is also
true of the judgment of Singleton
L.J.
who took the view that the
existence of a tort could be concluded from the language
used
in
section
12.
Hodson
L.J.
shared the latter view, but (more
correctly perhaps than consistently) pointed out that nevertheless
the substantive liability remained.
The survival of remnants of the
“
unity
”
fiction, such as the
exclusion of mutual tort liabilities, must be regretted. Unfor-
tunately neither the Act of
1882
nor that of
1935
produced the
result which Denning
L.J.
tried
to
read into the present law. The
argument that the vestigial remainders of the common law had
been swept away by legislation has
so
far been unsuccessful in the
courts
(e.g., Edwards
v.
Porter
[1925]
A.C.
1
;
Bayliss
v.
Blackwell
119523
1
K.B.
54).
Clearly there is a strong case
for
law reform.
That reform, it is submitted, can be brought about only by legisla-
tion and not by the courts.
0.
KAHN-FREUND.
LIABILITY
FOR
THE
ACTS
OF
AN
AGENT
THE recent decision in
Ornirod
v.
Crossville Motor Servzces, Ltd.
[19581
1
W.L.R.
409,
though but briefly reported, is of consider-
able general interest. The facts were as follows
:
A,
a competitor
JULY 1968
NOTES
OF
CASES
879
in the Monte Carlo rally, asked his friend
B
to
drive his
(A’s)
car
to
Monte Carlo.
B
was to arrive at Monte
Carlo
before the end
of the rally, but, apart from this, he was free to drive the car in
his own time and along
a
route of his own choosing. After
B’s
arrival at Monte Carlo,
A,
B
and
B’s
wife were to use the car for
a joint holiday in Switzerland. The car came into collision with
C’s motor-bus through
B’s
negligence. Devlin
J.
held that
A
was
liable to
C
for damage to the bus.
The learned judge said that, although there was no “legal
contract of agency,” yet
A
had requested
B
to drive the car, and
“he who complies with such a request is the agent
of
the other,
since he who makes the request has an interest in its being done
”
(at p.
411).
The relation of principal and agent, therefore, though
consensual, is not necessarily contractual. Tn the present case the
purely consensual relation involved the principal in liability to a
third party
;
it might equally have given rise to a liability between
principal and agent.
For
example,
if
B
had used the car to carry
a passenger
for
reward he would probably have been liable to
account to
A.
Thus it is possible that a legal liability can arise
under the law of agency from a mere agreement which does not
amount to a contract.
Ormrod’s
Case
is also of interest in the field
of
vicarious
liability.
A
master’s liability for injuries inflicted by
his
servant
was probably based in the first place on the consideration that, as
the servant was acting on his master’s business, justice demanded
that the master, who took the benefit, should also shoulder the
liability. Our case shows that what was once the juridical basis
of a particular rule has now been transformed into a substantive
general principle. Vicarious liability is thus no longer restricted to
the categories of contract
or
control, but can arise wherever one
person does an act at the request
of
another who has an interest,
financial, social,
or
moral, in its performance.
Finally, the decision removes one objection to holding a com-
pany liable for
ultra
vires
torts.
It
has been argued that, as the
company’s contract with the tortfeasor is
ex
hypothesi
void, his
act cannot involve the company in liability. (Goodhart,
Essays
in
Jurisprudencr
and the
Common
Law,
Chap. V). This argument
is no longer conclusive, for
Ormrod’s
Case
shows that vicarious
liability does not depend on any contractual relationship between
the tortfeasor and the persons to be held liable.
G.
H.
TREITEL.
PRIVILEGE
AND
COMMUNICATIONS
TO
M.P.S
PARLIAMENTARY
privilege is a body of case-law that has been
developed predominantly by the House
of
Commons. But if the
cases in which questions of privilege have fallen
to
be decided by
880
THE
MODDN
LAW
REVIEW
‘doL.
16
the courts have been few, their constitutional importance has
generally been high.
Rivlin
v.
Bilainkin
[1953]
1
Q.B.
485,
cannot be regarded as
a
leading case, but
it
is worthy
of
notice
if
only for the interesting questions
it
leaves unanswered and for the
misconceptions that the decision has already caused
in
some
quarters.
In
earlier proceedings between the parties an interim injunction
had been granted against the defendant (the plaintiff’s former
husband) restraining
him
from repeating alleged slanders against
the plaintiff. He subsequently went to the House of Commons and
handed to
a
messenger five communications addressed to named
M.P.s and repeating the alleged slanders. One was accepted for
personal delivery to an M.P. The plaintiff applied for
an
order
of
attachment committing the defendant to prison for breach
of
the interim injunction, the breach consisting of the publication
of
that communication.
It
was argued
for
the defendant that the
court had
no
jurisdiction to make the order because the publication
had occurred in the precincts of the House and was connected with
an
attempt to obtain parliamentary redress for an alleged grievance.
McNair
J.
rejected this plea, holding that
no
question of privilege
arose,
“
for
a variety of reasons
)’
and particularly because
“
the
publication was not connected in any way with any proceedings
in that House.” He added,
ea:
abundanti cautela,
that he had
consulted three senior judges
of
the Queen’s Bench Division who
had authorised
him
to say that they agreed with this conclusion
(see
report in
The
Times,
December
19, 1952,
p.
2).
The part
of
the judgment that deals with the question of
privilege is disappointingly brief. What were the other reasons for
holding that the publication was not privileged?
Is
the com-
munication of
a
supposed grievance to an
M.P.
within the precincts
of the House never protected by parliamentary privilege;
or
protected
only
if
it
relates to a bone fide complaint against a public official
or
authority
or
to
a
‘(
political
”
matter
?
It
is clear, however, that not
every defamatory statement made
or
wrongful act committed within
the precincts
of
the House is protected by parliamentary privilege,
and there
is
reason to believe that even a conversation in the House
between M.P.s would be unprotected in an action for slander if
it
did not relate to a proceeding in Parliament
(cf.
H.
C.
101
of
1989,
pp. ix,
26,
55-7;
Erskine May (15th ed.) pp.
63-4;
R.
v.
Bunting
(1885)
7
O.R.
at
p.
568).
On
the other hand it is equally
clear that communications made from outside the House by
members
of
the public to M.P.s may in certain circumstances enjoy
qualified privilege in the law of defamation
:
Dickson
v.
Lord
Wilton
(1859)
1
F.
&
F.
419,
N.P.;
R.
v.
Rule
[1937]
2
K.B.
875.
Because
prliamentary
privilege does not apparently give the sender
of such communications immunity from liability for defamation, it
is
sometimes thought that the House has
no
power to take action
ageinst persons whose conduct
is
calculated to interfere with the
Jar
1963
NOTES
OF
CASES
881
freedom of communication between an
M.P.
and members
of
the
public. The powers of the House in these matters are undetermined
(see,
e.g.,
Case of Rev.
0.
Fielding Clarke,
486
H.C.
Deb.
8491
et seq., et
passim;
Case of
Mr.
D.
N.
Pritt,
509
H.C.
Deb.
798
et seq.
;
510
H.C.
Deb.
48
et seq.),
but
it
is consistent with principle
to maintain that in a proper case the House could treat such
conduct as a contempt even if
it
did not constitute a breach
of
a
recognised nominate privilege.
s.
A.
DE
SMITE.
THE
COURT
OF
CHANCERY
AND
TBUSTS
IN
periods of uncertainty there are obvious dangers in tying up
funds too rigidly in settlements, and
it
has always been comforting
for settlors and their advisers to believe that there was a “safety
valve
”
in the Court of Chancery, which could in an emergency be
asked to vary the trusts in the interests of beneficiaries. The
importance of this jurisdiction has grown with the rise in death
duties and the increase in the diillculties of avoiding them. The
extent of the jurisdiction has therefore great practical importance
as well as great academic interest in relation to the nature of the
Court of Chancery.
It
is with this that the Court of Appeal was
concerned in three cases reported at
119533
Ch.
218,
which may
be
referred
to
under the name of the first of them,
Re Dowrzshire
Settled Estates.
The cause of the application in each case was the desire to avoid
death duties, but that circumstance alone was held
to
be
no
bar to
relief. The powers of the court were, however, found to be some-
what narrower than had often been believed. By a majority the
court denied that the inherent jurisdiction of Chancery enabled it,
save in exceptional cases, to authorise general modifications of a
settlement. The only general power was to confer
on
trustees
special administrative powers to deal with an emergency
or
some
unforeseen circumstance, when
for
want of those powers the trustees
might be unable to prevent injury
to
the beneficiaries. Thus special
powers of sale
or
investment could be granted. Here section
57
of
the Trustee Act,
1925,
had not authorised any wider interference
with the trust, it merely enabled the court to act where there was
no
emergency or unforeseen circumstance justifying the exercise
of
the
inherent jurisdiction. Neither the inherent power of the court,
nor
its statutory powers, extend therefore to rearranging beneficial
interests under the trusts.
The exceptional cases where the court can do that are, it was
said,
two.
First where there is
a
directicn for accumulation, then
the court can order maintenance, despite that direction, as effectively
carrying out the presumed intent to benefit the family
;
and secondly
where a compromise has been agreed between the beneficiaries who
a82
THE
MODERN
LAW REVIEW
VOL.
16
are
sui
juris
the court can consent on behalf of infants and bene-
ficiaries not yet in being, even though an interference with the trusts
is involved. Compromise in this context is to be broadly interpreted,
including
a
composition
of
the rights of beneficiaries,
as
where, for
example, contingent interests are converted into vested interests in
a smaller fund,
as
a
price
for
some concession by other beneficiaries.
It
will not, however, cover
a
mere redistribution among beneficiaries
in order to save duties. The statutory jurisdiction under section
64
of
the Settled Land Art,
2925,
is, it was said, much nearer
to
this
head
of
the inherent jurisdiction, and
so
is much broader that that
under section
57
of
the Trustee Act. A warning was, however,
entered that where there is
no
unsold land remaining in
a
settle-
ment neither section
57
nor section
64
might be applicable,
a
statement which was
obiter,
and might perhaps be further con-
sidered in view of section
75
(5)
of the Settled Land Act.
It
is impossible in
a
short note to do full justice to the judgment
in these cases; certainly they will repay close study, and, though
they define the jurisdiction
of
the court somewhat more narrowly
than it was often thought to be, they do nevertheless allow a fair
measure of relief. The anxiety of the court to avoid any rigid
definition
of
the jurisdiction was, however, plain, and important
though these cases may be, it is evident that the judgments must
be taken as a guide, and by no means
as
the final word.
J.
D.
B.
MFTCRELL.
SAFE
SYSTEM
OF
OUTSIDE
WORK-THE
SEQUEL
TEE
House of Lords have unanimously upheld the decision
of
the
Court of Appeal in the window-cleaning case,
119521
1
K.B.
141
;
1
All
E.R.
89,
reviewed in this Journal in April,
1052 (15
M.L.R.
243).
In
General Cleaning Contractors, Ltd.
v.
Christmas
[1953]
A.C.
180
they have held the employers of the injured workman
liable in damages for failing to provide
a
safe system of work. The
grounds of their decision are different, however,
from
those advanced
by Denning and Hodson L.JJ. in the Court of Appeal. Their
Lordships have fastened upon a passage in the judgment of Lloyd-
Jacob
J.,
which did not appear in the All England Reports, to the
effect that, even if the suggestions that the employers could have
discharged their duty
of
care by the provision of
a
ladder or cradle,
or
by the use of hooks in the wall together with
a
safety-belt, were
impracticable, which the learned judge did not accept, the employers
were under
a
duty to take steps to ensure that the involuntary
ciosure of the lower sash, which caused the accident, was impossible
:
[1952]
1
K.R.
141,
at
p.
153.
The employers, it is
ROW
said,
should
have instructed their man to examine the window and see what
dangers were involved in cleaning
it
by
“
the window-sill method,”
and
they should have provided him with wedges or blocks
to
use
JULY
1953
NOTES
OF
CASES
888
wherever the window was liable to slip
or
run down. (See Earl
Jowitt at p.
289,
Lord Reid at p.
193,
Lord Tucker at pp.
198-9.)
They were negligent in failing to do
so.
In
so
resolving the matter, their Lordships have wisely avoided
subscribing to the views expressed in the Court
of
Appeal as
to
the
provision
of
safety-belts and hooks,
or
ladders
or
cradles, and have
neatly turned against the appellant company one
of
their original
arguments in their own defence,
uiz.,
that the workman was guilty
d
contributory negligence in failing to take steps to wedge or secure
the window. The result is a sensible decision which clearly demon-
strates the continued importance of the common law duties
of
cmployers in an age of extensive regulation of conditions
of
employment by statutory authority.
It
is
rather surprising that the
window-cleaning trade has not been made the subject
of
special
regulations
:
the authorities might well consider this.
Just how difficult it now is for
a
window-cleaner
to
fix
liability
on an occupier in the light
of
this case and the
IZorton Case
can
be
seen from the later decision in
Bates
v.
Parke?
[1958]
2
W.L.R.
642.
The Court of Appeal there decided that the occupier was not
liable where the accident to the window-cleaner was caused by
his
placing reliance on a plywood panel fitted in place
of
one
of
the
window panes, which, without the knowledge
of
the occupier, he
was accustomed to use as a hand-hold, but which the occupier
had loosened since his last visit, preparatory to replacing it with
glass.
The decision of Lynskey
J.,
which was reversed, was that the
loosened panel constituted an unusual danger within the principle
of
Indermaur
v.
Dames,
and that the
Christmas
Case
did
not
govern the matter, as it depended on its own particular facts. The
Court of Appeal, in disagreeing with this, have adopted the state-
ment
of
Denning L.J. in the latter case to the effect that “the
householder employs the window-cleaner as an independent con-
tractor to clean
his
windows, and leaves it to him to decide how
he shall do it and what safeguards he shall take.” In the present
case Romer L.J. was prepared to go further and hold that these
observations of Denning
L.J.
were not confined in their effect to
window-cleaners but were of general application
to
independent
contractors employed
for
the purpose of cleaning or repairing
premises.
Indeed it can almost
be
said that independent contractors now act
at
their own peril. They can,
of
course, insure against such
accidents as occurred in the
Christmas Case
and
Bates
v.
Parker,
but they cannot normally make the occupier liable in damages. The
most they can do is charge more for their services, to cover the
insurance, premiums, if these are found to he heavy. In fact, the
law has given a new twist to the
old
saying that the customer is
always right
!
J.
E.
IIALL
WIIJJAMS.
$84
“H?I
MODERN
WW
WEVHEW
SECONDARY
PARTIEB
TO
NON-EXISTENT
CRIME
CAN
a
person
be
guilty
8s
secondary party (principal
in
the second
degree
or
accessory before the fact) to a crime that does not exist
in
law?
Until
the recent decision in
R.
v.
Bourne
(1952)
86
Cr.
AppR.
125,
an answer would confidently have been given in the
negative; but the decision
in
that case opens up a new vista of
possibilities.
The conduct proved against the accused was
so
revolting that
it
is
small wonder that the court was willing to strain every resource
of the law against him. Reducing the sordid facts to their essential
minimum,
he had compelled
his
wife by duress to commit an
unnatural offence with an animal. He was sentenced concurrently
tor
aiding and abetting the wife to commit the offence, inciting her
to
it,
and indecent assault upon her.
On
appeal,
it
was held by the
Court of Criminal Appeal that the conviction was proper
on
all
grounds. The argument
for
the appellant was that the conviction
for aiding and abetting was wrong, because
if
the wife had been
charged she would have had a defence
on
the ground of duress,
and the accused could not be guilty of aiding an offence that
in
law
had not taken place. This argument was rejected on the ground
that the defence
of
duress “admits that she has committed the
crime
but prays to be excused from punishment by reason of
duress.
.
.
.
She could have set up the plea of duress, not as show-
ing that
no
offence had been committed, but as showing that she
had
no
mens
rea
because her will was overborne.
.
. .
The offence
of buggery
does
not depend
on
consent;
it
depends
on
the act, and
if
an act of buggery is committed, the felony is committed.”
With all respect,
it
is
dificult
to
accept these dicta literally.
Duress
is
more
than
a
prayer to
be
excused from punishment
;
it is a
legal defence which within its limits entitles the accused to a verdict
of
not guilty. There is
no
question
of
discretion about
it.
The notion
that, where the
actus
reus
of felony is committed without
mens
rea,
there is a felony
for
collateral purposes,
is
one without precedent
in
the long history
of
the criminal law.
The actual decision is directly contrary to
Tyler
(1838)
8
C.
&
P.
816,
which was cited in argument, where
it
was ruled that
there could not be a conviction of aiding and abetting a person of
unsound mind. The solution
of
the difficulty adopted in
Tyler
was
to convict the accused as principal in the fist degree acting through
an innocent agent, and it is submitted that this was the proper
mode of reaching the result in
Bourne.
It
may
be
noticed that the
doctrine of innocent agency
is
applicable even to statutory offences.
Where a statute uses a verb like
“
enters,” “publishes
”
or
‘‘
makes,” there is abundant authority for saying that conduct by
an innocent agent coming within the verb
will
be attributed to the
principal. There seems to be
no
difficulty in reachiag the ssme
conclusion
for
unnatural offences.
JULY
1963
NOTES
OF
CASES
385
There are two situations that the doctrine of innocent agency
fails to reach. The first is the semi-innocent agent. Here there
is an exception to the first part of the ruling in
Tyler,
for a person
may be convicted as principal in the second degree to a crime of
graver nature than the principal in the first degree. Thus, a
principal in the second degree may be convicted of murder when
the principal in the first degree, who alone was provoked, is
COIA-
victed only of manslaughter
(cf. Hale
P.C.,
i,
438;
East
P.C.,
i.
850;
Moore
v.
Lowe
(1935) 116
W.Va.
165; 180
S.E.
1).
Secondly,
the doctrine
of
innocent agency fails to reach the situation where
the morally guilty person cannot himself be brought within the
words of the statute. Thus, if a statute penalises an act only when
done by a person having a licence,
a
morally guilty person who
does
not himself
possess
the licence cannot (in the absence
of
an
offence committed by the licensee) be convicted under the doctrine
of innocent agency or at all
(Morris
v.
Tolman
[1923] 1
K.B.
166).
Another illustration is
Thornton
v.
Mitchell
119401
1
All
E.R.
389,
where an omnibus was being reversed, and the conductor negligently
signalled to the driver that the road was clear, when in fact there
was
a pedestrian behind the omnibus.
It
was held that the
conductor could not be convicted
of
aiding an offence that the
driver had not committed. Only the driver could be convicted of
careless driving as principal in the first degree, and here the driver
was not careless, but only the conductor. Nor could the conductor
be
regarded as constructively driving, because such a wide inter-
pretation of
“
driving
’’
in the particular statute would have led to
manifest absurdities.
It
would have meant, for example, that no
one could employ a chauffeur to drive him in
his
car without himself
passing the driving test and having a licence.
It
is
submitted that these last two decisions were inevitable on
the wording
of
the statutes, and that no wider interpretation was
possible without an undue extension
of
the field
of
constructive
crime.
The reasoning in
Bourne
seems to be that there is a kind of ghost
crime committed by the actor which is sufficient to inculpate the
secondary party. The rule is basically inconsistent with the decision
of
the same court only the year before in
Walters
v.
Lunt
119511
2
All
E.R.
645,
noted
ante,
Vol.
15,
p.
222,
where it was held that
there could be no receiver of goods taken by a child under eight.
GLANVILLE WIIJJAMS.
FRAUDULENT
TAKING
IN
LARCENY
AMONG
the more familiar epithets used in
defining
statutory
oflerm:s
is
the word
“
fraudulently,” which is generally
rcgarcicd.
as
dciioticg
the precise mental element
requisite
in
such
:*ri:ncs.
*hh~
11.
:he
best known illustration
OWUPS
in
the
tic:ji!riticrn
i
Inrc~~i..
:
VOL.
16
2.5
886
THE
MODERN
LAW
REVIEW
\rv1..
16
section
1
(1)
of
the Larceny Act,
1916,
which provides
:
“
A person
steals who, without the consent of the owner, fraudulently and
without a claim of right made in good faith, takes and carries away
anything capable of being stolen with intent, at the time of such
taking, permanently to deprive the owner thereof
.”
Strange though
it
may seem, however, until the decision of the Court of Criminal
Appeal in
R.
V.
Williams
[1953]
2
W.L.R.
937,
no
authoritative
modem interpretation existed as to the meaning
of
“
fraudulently
”
in that section. The appellant in that case was a sub-postmistress
at
a general shop in which her husband carried on business. When
the shop was in financial difficulties the appellant took money from
the
till
in the postal department and used it for the business of the
shop. On the basis of the appellant’s expressed intention to repay
the money out of the sales in the shop two lines of defence were
put
forward,
viz.,
(1)
that she had not intended permanently
to
deprive the Postmaster-General of the property in the money, and
(2)
that she had not acted fraudulently.
The first defence was calculated to negative the necessary
unimzls
furandi
but, as Lord Goddard
C.J.
rightly stated, it was essential
to appreciate that what was alleged to have been stolen was money.
In
the opinion of the court, the coins and notes having been taken
from the postal till and used in the business of the shop the appel-
lant intended permanently to deprive the Postmaster-General of
those coins and notes. Currency has always occupied a special
position in the law of larceny, creating well-known difficulties in
connection with the distinction between larceny by a trick and
false pretences, and larceny and fraudulent conversion. This aspect
of the decision in
R.
v.
Willinms
must be considered in relation to
the particular facts of that case, and no suggestion should be read
into the court’s ruling that a person who wrongfulIy borrows any
article other than money, such as a book
or
a bicycle,* intending
eventually to return it, is guilty of lar~eny.~
The second line
of
defence raised the question, what is the
meaning of
‘‘
fraudulently
”
in the statutory definition of larceny
?
In
its requirement that the taking must be fraudulent the Larceny
Act merely repeats what was deemed necessary in Roman law,4 and
examination
of
the definitions put forward by Coke and Hawkins
‘
1
It
is
now
a
statutory offence und.
L’
the
Road
Traffic Act,
1930,
s.
OR,
to
take
and drive away
a
motor-vehicle i~ithout the confient
of
the
owner or other
lawful snthority. This offence was created owing to the difficulty experienced
in proving an intent permanently
lo
deprive the
owner
of his property in
the
vehicle. lJorthern Ireland),
1953,
s.
15,
it
is
made
an
offfence
to
take amy
a
pedal-c:-cle in circ~i~nstances similar to those slren(lv
2
Undrr the Criminal Justice Act
existent in the case of motor-vehicles.
3
1lli1str:tlions of this principle are
to
be ford in
R.
v.
Phillips
(1801)
O
East
P
P.
6li.L:
R.
v.
Webb
(1835)
1
Moo.
431;
and
R.
v.
Addis
(1R81)
I
Cox
78.
.~
_.
.
.
4
See
Stephen.
H.C.L.,
iii,
131-0,.
5
Im/itufrs.
iii.
cap.
47.
6
P.C..
13t.
JULY
i9sa
NOTES
OF
CASES
887
indicates the same emphasis on
“
a felonious and fraudulent taking,”
while East adopts the
phrase
“
a
wrongful and fraudulent taking.”
Modern opinion, as expressed in the current edition of
Russell
on
Crime,”
is that the word
(‘
fraudulently
”
adds nothing
to
the more
precise phrase
“
without
a
claim of right,” and reliance is placed
on
the judgment of Parke
B.,
more than a century ago, in
R.
v.
Holloway
(1848)
3
Cox
241,
at p.
244.
Insomuch as the Court of Criminal Appeal in
Williams
also
referred to Parke
B.’s
opinion in
Holloway,
it
is
important to note
that different versions exist as to what the learned Baron said in
that case. Referring
to
East’s definition of larceny, Parke
B.
is
quoted in two series of reports
*
as saying:
“
Some further explana-
tion is needed of the words ‘wrongful and fraudulent ’-they
probably mean without colour of right
”;
whilst in another
report
lo
he is cited as declaring:
‘‘
this definition needs some
addition, the taking should be not only wrongful and fraudulent but
should also be without any colour of right.” Having regard to the
patent conflict evidenced by the above extracts from the reports,
it
would seem that little profit is to be gained from dwelling on
the repudiation in
Williams
of Parke
B.’s
view that the two
expressions are synonymous. In the opinion of the Court of
Criminal Appeal the word
‘‘
fraudulently
”
is intended to, and does,
add something to the phrase
“
without a claim of right.” Prefacing
the court’s definition with the warning that the words used might
not
fit
every case-an admission which surely weakens any defini-
tion-the Lord Chief Justice said that the term
“
fraudulently
”
meant that
“
the person who takes the property must know when he
takes
it
that it is the property of another person, and he must take
it
deliberately, not by mistake, and with an intention
to
deprive
the person from whom it is taken of the property in it.”
I’
Thus,
explained Lord Goddard,
if
a person picks
up
a suitcase at a railway
station in the mistaken belief that it is his own, he does not take it
fraudulently. Such conduct might equally well be described as
manifesting a claim of right made in good faith, as may also be said
of the case where a finder believes that the owner cannot be dis-
covered by taking reasonable steps,’*
or
has abandoned the article,lS
and resolves to keep the article for himself. These examples indicate
7
2
P.C.
553.
8
10th ed.,
Vol.
2,
p.
1\75.
9
18
L.J.M.C.
60,
at p.
62,
and
3
Cox
241,
at p.
244.
For
the contrary view, see
(‘ross,
68
L.Q.R.
103,
and
the present writer in
14
M.L.R.
218-9.
Cf.
the report, in
2
Car.
&
Kir.
943,
at p.
946,
in which the nbsence
of
a
colour
of
right
is
related
to
the
word
‘‘
felonious.” Whereas the learned editor
of
RUS8d
relies on the
report in
Cot’s
Criminal
Cases,
it will be seen that in the recently published
Cases
on
Criminal
Law by
Turner
and Arrnita e, preference shown by the
same editor
for
the report in
Denison’s
Crown
(!?me.?.
11
[1953] 2
W.L.R.
at p.
941.
12
See
R.
v.
Reed
(1842)
C.
&
M.
307.
I*
See
Ellerman’s
Wilson
Line
v.
Webder
[1952] 1
Llovd’s Rep.
179.
10
1
Den.C.C.
370,
at p.
375.
388
THE
MODERN
LAW
REVIEW
VOL.
16
the difficulty of disassociating the word
‘‘
fraudulently
”
from what
hitherto has been described as acting without a claim of right made
in good faith.
Later in the course of his judgment Lord Goddard
C.J.
said of
the sub-postmistress and her husband,
‘‘
they acted fraudulently
because
. .
.
they knew that they had no right to take the money,”
and their conduct made it clear that “they had acted dis-
honestly.”
l4
It
is in
this sense of acting dishonestly,
it
is
submitted, lies the true explanation of the word
‘‘
fraudulently.”
It
is in this sense that the Divisional Court in
Rose
v.
Matt
[1951]
1
K.B.
810,
spoke of the true owner’s fraudulent taking of his
own
clock from a shopkeeper to whom he had entrusted it as security,
and in which the shopkeeper had a special property. Moreover,
it
is in this general sense of dishonest conduct that the earlier cases,
involving an intent to charge a bailee in detinue,I5
or
to expose
a bailee to a penalty payable under a bond,”
or
even an intent to
defraud the Crown,” are explicable. This interpretation is basically
the same as “the absence of honest intention” test whicb
Channell
J.
in
R.
v.
Carpenter
(1911)
22
Cox
618, 624,
said was
the yardstick witb which
to
judge an intent to defraud in
a
case
of
obtaining by false pretences. Stating that Channell
J.’s
test was
just
as
apposite in cases of larceny, the court in
R.
V.
Williams
held
that it is no defence for a person in the position of the appellant
to prove that, although not in a position to replace the money at the
time
of
taking, she hoped and intended to be able to do
so
in the
future. However, in the same breath, Lord Goddard added that
the taking would not be fraudulent if the person who dabbles with
somebody else’s money is an individual with good credit and with
plenty of personal funds. Thus, what would appear to be laid down
as a rule of law in
R.
v.
Williams
is, in effect, reduced to a question
of
fact, wherein the issue of honest
or
dishonest conduct is left for
the
jury to decide having regard to all the facts before them.“
J.
LL.
J.
EDWARDS.
14
[1953]
2
W.L.R.
at
pp.
939,
943.
15
1
Hale
P.C.
513.
16
R.
v.
Wilkinson
and
Marsden
(1821)
Rues.
&
Ry.
470.
11
Ibid..
p.
472.
1s
Cf.
R.
v.
.lfetlland
(1851)
5
Cnx
292,
nnd
It.
v.
Trebilcock
(1858)
1).
L
B.
453.
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