When Is A Conviction Not A Conviction?
| Author | D. G. Valentine |
| Date | 01 November 1960 |
| DOI | http://doi.org/10.1111/j.1468-2230.1960.tb00644.x |
| Published date | 01 November 1960 |
Nov.
1960
NOTES
OF
CASES
697
The present writer has elsewhere
l2
pointed out that no one has
gone
so
far as to suggest that this presumption of personal liability
is as remote from reality as some other old presumptions which
may
or
may not continue to exist, such as the presumption of
general hiring.
It
was also pointed out that the modern develop-
ment of confirmation in export transactions
l3
tends to produce a
scheme of rights and duties similar to that produced by the pre-
sumption of personal liability which would seem to indicate that
the needs and usages which produced the presumption have not
ceased to operate. Indeed
Cox
v.
Sorrel1
itself provides a neat
illustration of the sort of difficulty which must have been envisaged
by those who fostered the presumption. In the two transactions
in which the defendant was acting as an agent for foreign principals
the plaintiff, perhaps ill-advisedly as Pilcher
J.
pointed out,"
applied to the foreign principals for payment but received no
satisfaction whatsoever. In fact the plaintiff's letter to the Italian
principal, one Luigi Borghi, was speedily returned with a note to
the effect that
"
no such person, place
or
address was known in
Milan."
l5
It
may, of course, be urged by those who are critical of the
older cases that a presumption which operated to add an alterna-
tive liability in the agent, in the nature of a guarantee to an
existing liability in the foreign principal, would be more serviceable
than the present presumption, which, by operating to deny an
authority in the agent to create privity of contract between his
principal and the third party,16 prevents the principal falling
under any direct liability to the third party. Since, however, the
presumption
is
one of fact, even though at one period
it
was
so
strong as almost to be one of law,17 there seems to be no insuper-
able obstacle to its being
so
moulded as to produce just and realistic
solutions in accordance with whatever modern usage may be proved
to the court.
A.
H. HUDSON.
WHEN
IS
A
CONVICTION
NOT
A
CONVICTION?
THE case of
R.
v.
Governor
of
Brixton
Prison,
ex
p.
Caborn-
Waterfield
was an application for a warrant
of
habeas corpus that
was
"
entirely devoid of merit." In
1955,
the applicant was
12
35 Can.B.R. 336.
13
See also Schmitthoff
[19571
J.B.L.
17
at p.
21.
14
[1960]
1
Lloyd's Rep. at p.
478.
15
Ibid.
at p.
477.
16
See Halsbury,
Laws
of
England,
3rd ed.,
Vol.
I,
p. 230;
Anson,
Contract,
21st
ed., p. 518;
Miller, Gibb
v.
Smith
&
Tyrer
[1917] 2 K.B. at p. 150,
per
Swinfen Eady
L.J.;
at pp. 154-155,
per
Bankes
L.J.;
and p. 160,
per
Bray
J.
Coiitra,
semble,
Powell,
Agency,
p.
208x1.
"
It is unlikely that a mercantile
usage excluding the foreign principal's liability was ever recbgnised.
"
1'
See
per
Blackburn
J.
in
Armstrong
v.
Stokes
(1872) L.R.
7
Q.B.
598
at p.
6M.
1
[lDGO]
2 W.L.R. 792. Also reported a.t [1960]
2
All
E.R.
178.
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