The Express.
London, England, 1847-12-03 00:00:00

COURT OF COMMON PLEAS.

Non Pants, Wierouneraa.—Bakes Mr. Janke Croswell and a
lipeall 1072.
NEWTON O. LORD ALB'S? CONYNOELIC—RIGHT TO
RICOYEZ BACK DEPOSITS PAID IN RKSPRCT OP A RAIL-
WAY Pao.tacr.—Mr. Humfrey and Mr. Atherton for the
plaintiff. Mr. fierjeant Byles and Mr. Bramwell for the
defendant. This was an action brought by the plaintiff, Mr.
Augustus Newton, a barrister, against the defendant, as a
member of the managing committee of the Galway and
Bans Grand Junction Rail way, to recover 2751., the
amount of deposits alleged to have been paid by the plain-
tiff upon 100 shares, at 21. 15s. per share, in the said railway.
—The plaintiff's case was,. that the money had been paid
through a fraudulent representatioa on the part of the com-
pany, and that, therefore, the 'diatom had a right to re-
cover it back, according to the decision in the case of
" Wontner r. Shairp." It was also contended that the
scheme in questioa had been abandoned •• and the fraudulent
representation complained of was a published statement, to
the effect that the whole of the deposits had been paid up,
and that the company were reedy to proceed with the under-
taking.
Mr. Serjeant Byles contended that there were several
; fatal objections to the plaintiff's right to maintain the pre-
sent aetioe, and he submitted that there was no evidence to
go to the jury. In the first place, it bad been proved that
the plaintiff became a member of the company tome before
the defendant himself joined that body, and it was also
shown that the money was paid upon a contract, which eon-
tract was contained in certain letters of allotment and
beaten' receipts; but no evidence had been adduced as to
what that contract originally was. The second objection
was, that there was no proof that when the money was paid
the defendant was a member of the company. The deposit
was raid ea the 17th Sept., and there was no evidence that
the defendant joined the c: mpany until the 22nd Sept. The
third objection was, that there was no proof whatever that
any portion of the money which found its way into the hands
of the bankers was Mr. Newton's money. But the mod
fatal objection was this—the contract in question was alleged
to be a contract to pay money bad and received by the de-
fendant for the use of the plaintiff. What the nature of that
contract was would appear by the parliamentary deed and
subscribers' agreement ; and the last mentioned document
ought to have been ptodaced. The fifth objection was, that the
plaintiff had in point of fact received what he contracted for,
viz., a certain number of shares in a projected railway
scheme ; and lastly, there was no proof whatever that the
scheme had been abandoned. The only evidence upon this
point was that the company rented certain offices in Moor-
gate-street, and that no business was transacted there subae-
quent to the month of March, 1846. There was another
objection of a more technical nature, viz., that it had not
been proved whether or not the money was paid by notes or
by cheque. On these grounds he submitted that the plaintiff
ought to be nonsuited.
Mr. Humfrey, in answer to these objections, submitted
that there was evidence to go to the jury, as establishing the
plaintiff's right to recover back his money, and he contended
that according to the authority of " Wonder v. Shairp," the
fact of the plaintiff having signed the subscribers' agreement
and parliamentary contract did not deprive him of the right
to recover, if his signature had been obtained through any
fraudulent representation.—Mr. Serjeant Bytes withdrew
one of the objections, viz., that which bad been based upon
the supposition that the payment of the money by the
plaintiff was not proved.
Mr. Justice Creswell was of opinion that there was no
evidence to go to the jury to establish the plaintiff's right to
recover in an action for money had and received. The diffi-
culty be (the learned judge) felt, was in seeing that the
plaintiff bad been induced by fraud to part with
his money. The evidence was that the plaintiff
his
deposits previous to the time when the defendant
a member of the company, and there was no proof of
mai fraudulent statement before the payment of the money,
Miff less was there evidence to *bow that the defendant was
a party to such fraud. In his opinion, tho representation
on the part of the company, that the full amount of the depo-
sits had been paid up, was capable of explanation; inas-
much as it appeared that the parties signing the parliamen-
er, deed and the subscribers' agreement had bound them-
selves to pay the whole of the money which constituted the
deposits, At all events, however, he (Mr. Justice Cresswell)
did not think, that even supposing there was any fraudu-
lent representation previous to the payment of the money,
the defendant, by afterwards joining the company, made
himself a party to such representation. For these reasons
he held that the plaintiff must be nonsuited.—Norumit ae-