Thomas Clarke v Samuel Auchmuty Dickson, John Williams and Thomas Gibbs
| Jurisdiction | England & Wales |
| Judgment Date | 26 April 1858 |
| Date | 26 April 1858 |
| Court | Court of the Queen's Bench |
English Reports Citation: 120 E.R. 463
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 27 L. J. Q. B. 223; 4 Jur. N. S, 715. Discussed, Western Bank of Scotland v. Addie, 1867, L. R, 1 H. L. (Sc.) 159. Approved, Oakes v. Turquand, 1867, L. R. 2 H. L. 347. Referred to, Heilbutt v. Hickson, 1872, L. R. 7 C. P. 451; Sheffield Nickel and Plating Company v. Unwin, 1877, 2 Q. B. D. 223. Approved, Urquhart v. Macpherson, 1878, 3 App. Cas. 831. Referred to, Erlanger v. New Sombrero Phosphate Company, 1878, 3 App. Cas. 1278. Referred to, Houldsworth v. City of Glasgow Bank, 1880, 5 App. Cas. 339; In re Duncan [1899] 1 Ch. 392.
thomas clahke against samuel auchmuty dickson, john williams and thomas gibbs. Monday, April 26th, 1858. A person induced by fraud to enter into a contract under which he pays money may, at his option, rescind the contract, and recover back the price, as money had and received, if he can return what he has received under it. But, when he can no longer place the parties in atatu quo, as if he has become unable to return what he has received in the same plight as that in which he received it, the right to rescind no longer exists: and hia remedy must be by an action for deceit, and not for money had and received, [S. C. 27 L. J. Q. B. 223; 4 Jur. N. S. 715. Discussed, Western Bank of Scotland v. Addie, 1867, L. R. 1 H. L. (Sc.) 159. Approved, Oakes v. Turquand, 1867, L. H. 2 H. L. 347. Eeferred to, Heilbutt v. Hicksan, 1872, L. R. 7 C. P. 451; Sheffield Nickel and Plating Company v. Unwin, 1877, 2 Q. B. D. 223. Approved, Urguhart v. Macph&rsan, 1878, 3 App. Cas. 831. Referred to, Erlanger v. New Sombrero Phosphate Company, 1878, 3 App. Cas. 1278. Referred to, Houldsworth v. City of Glasgow Bank, 1880, 5 App. Cas. 339; In re Duncan, [1899] 1 Ch. 392.] Action for money had and received. Plea: Never indebted. Issue thereon. 464 CLARKE V. BICKSON BL. IL. tc BL. 1. On the trial, before Lord Campbell C. J., at the London Sittings after laat Michaelmas Term, the statements made by the plaintiff's counsel, in opening his case, were: that, in 1853, the plaintiff was induced, by representations made by the three defendants, to take shares in a Company called The Welsh Potoai Lead and Copper Mining Company, which was then formed for working a mine on the cost book principle, and of which the defendants were directors; and to pay deposits for those shares. The mine was worked by the Company during the years 1854, 1855 and 1856; and dividends were declared in each of those years. The plaintiff was induced to accept fresh allotments of shares in lieu of the dividends declared. In 1857 the Company was in bad circumstances: it was, with the plaintiff's assent, registered as a Company with limited liability, and was afterwards wound up under the Winding-up Act. During the process of winding up, the plaintiff for the first time [149] discovered that the representations by which he was induced to make the purchase were false and fraudulent on the part of the defendants, and that the dividends declared were fraudulent dividends. He therefore brought this action to recover back the deposits which he had paid for the shares...
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