10 R. 610), the complaint ought to have set forth that the alleged assault was an incident of the administration of discipline in the school with regard to the boy as one of the pupils of the school. The complaint does not state that the boy was a pupil in the school, or that the punishment given him was on account of a school offence. I think that represents the real ground of Mr MacLean's attack, but it is right to add that he also maintained that the physical force used should have been specifically described as being in excess of what disciplinary chastisement required and justified. Now, in the first place, the complaint charges assault in so many words. In the second place, it clearly states that the alleged assault was committed on a very young boy by blows on the face, hips, and thighs, partly with the hands and partly with an instrument of punishment. In the third place, it states that injury to the boy's person resulted from the blows. These statements seem to me to give ample specification of a charge of assault. No doubt it must always be established to the satisfaction of the tribunal that the act imputed to the accused was done with criminal intent, or with a disregard of duty which infers criminal responsibility. But if the statement of the modus would - on criminal intent or criminal responsibility being established-constitute a crime, it is in my opinion sufficient. Judged by this standard, the complaint seems to be relevant. HIGH OF JUSTI CIARY. Brown v. in the present case to hinder or impede the The case of M'Shane v. Paton (1922 J.C. 26) Mr MacLean founded on the passage in Hume (Vol. II. p. 197) dealing with cases in which it is necessary to the criminality of the act charged, or to the degree of its heinousness, to specify the quality of the person injured or his relation to the accused. He referred also to Macdonald (p. 333), where the same topic is considered. Hume gives the instances of hamesucken, parricide, adultery, and beating of Mr MacLean also founded on the statements parents. In Macdonald, the further instance of relative to the facts of the case contained in assaults on officers of the law is given. There the respondent's answers. It was no doubt is no doubt that, in such instances as these, if because of the full statement of the facts by (in the one case) there is to be a prosecution for the respondent in M'Shane that the somewhat the crime, or (in the other case) if the prosecutor unusual course was taken in that case of giving wishes to establish its aggravated character, judgment on the facts without the Court there must be specification of the quality of having a stated case before it. It is enough the person hurt or of his relation to the accused. to say that I am satisfied that if the facts But it is a different thing to say that there must actually proved in the present case were as be specification of facts in anticipation of some-stated in the respondent's answers it would thing which may be stated in defence arising be impossible to say that the learned Sheriff out of the particular circumstances of the had no grounds for reaching the conclusion relations of parties or the quality of the person he did reach, or that he was not entitled to arrive injured. The requirements of relevancy do at it. not go so far as this. The defence remains perfectly open, notwithstanding the form of the charge; and it is not the business of a Lord Cullen.-I am of the same opinion. prosecutor to anticipate it in specifying the The complaint charged the accused with modus of the offence. There was nothing having, on the occasion in question, assaulted I think we must refuse this appeal. 1923. of JUSTICIARY. 1993. HIGH the boy in the school at Makerstoun, and it COURT duly specified the manner or modus of the assault in ordinary form. I am quite unable to understand how it can be maintained that the Brown v. complaint was irrelevant. It is an admitted Hilson. fact that the boy was a pupil in the school November 24, conducted by the accused, and this relation of teacher and pupil opened to the accused a possible defence to the effect that what actually happened amounted to no more than an exercise of a power of disciplinary chastisement competent to him as teacher. But, esto the accused had in fact good ground for a successful defence on such lines, that plainly could not make the complaint irrelevant. It would only have made a good answer on the facts. I do not find that anything to the contrary was decided in the recent case of M'Shane v. Paton (1922 J.C. 26). The complaint there was not decided to be irrelevant. Where, in such a case, the prosecutor's view of the facts as known to him when he frames his complaint is that the case is one of excessive punishment unjustifiably inflicted on an occasion when an exercise of the teacher's power of disciplinary chastisement was permissible, it may be, as was said in M'Shane, that it is desirable that he should frame his charge of assault in some special manner, although he is not under legal obligation to do so. But the prosecutor's view of the facts so far as ascertained by him on due investigation when he frames his complaint may be justifiably different, even although it should turn out on a full disclosure at the trial that it was wrong. It has been urged that in the present case the complaint was materially misleading to the accused so as to prejudice him in his defence. As this is not a stated case we do not know the facts, but I am in any case unable to understand why the accused should have been so misled. He necessarily was well aware that the boy alleged to have been assaulted was one of his pupils, and must also have been well aware that he, as teacher, had a disciplinary power of chastisement. And I fail to see how the terms of the complaint could in any way blind his mind to perceiving that he had open to him a good defence, if the facts permitted, to the effect that what happened on the occasion in question amounted to no more than an exercise of his disciplinary power. We were invited by Mr MacLean to go into the facts. Now, if his client desired to bring before this Court, on review, the question whether the facts proved entitled the Sheriff to convict him of assault, his proper course was to appeal by way of a stated case which would have authoritatively set forth the facts. I am aware, however, that in various instances this Court has, under a suspension, proceeded on its own ascertainment of the facts, where the pleadings shewed that the parties were not in dispute as to the facts and what the undisputed facts were. The case of M'Shane v. Paton is an example. I therefore do not think it necessary to say any more under this head than that I am unable here to find in the pleadings any such admitted state of facts as would, in my opinion, justify us in holding that the Sheriff was not entitled to convict the accused as he did. Lord Sands. I agree with both your Lordships. It happens from time to time that charges of assault are made against officials and others who are entitled in virtue of their office to exercise in certain circumstances physical force. I may cite as examples police officers, prison warders, asylum attendants, railway servants, and ships' officers. It is in accordance with my reading and my recollection of practice that in such cases the complaint is framed simply in the ordinary form of a charge of assault. That may or may not be a good practice, but it is well-established practice, and inconvenience may arise from any departure from it. Whether that be so or not, it is the ordinary practice, and adherence to this practice cannot warrant the suspension of a conviction proceeding upon a charge so framed. It was argued and quite rightly argued from a theoretical point of view-that the accused might have been here misled. But I am glad to think that there is in this case really no substance in the argument. The accused was an educated man. He knew that reasonable chastisement was the prerogative of a schoolmaster. I cannot imagine that he was misled into the belief that what he was charged with was the infliction of moderate and reasonable punishment and that the contention of the prosecutor was to be, not that the accused exercised any excessive violence, but that moderate and reasonable chastisement is a crime. I agree with the course proposed by your Lordship in the chair. Counsel for Complainer, MacRobert, K.C., MacLean; Agents, Kirk, Mackie & Elliot, S.S.C. Counsel for Respondent, Fenton, K.C., A.-D., Maitland, A.-D.; Agent, John Prosser, W.S., Crown Agent. M. G. F. FIRST DIVISION. (The Lord President, Lords Skerrington, Cullen, and Sands.) 30th November 1923. 8. Liquidator of Clyde Marine Insurance Company Limited v. Herbert Renwick & Company. Company-Voluntary liquidation-Duties of liquidator -Honour obligations of the company-Marine insurance—“Slip" taken over by the liquidator amongst the company's papers binding the company in honour but not in law to issue a policy of insurance in its terms-No information as to whether loss had been incurred in connection with the slip-Liquidator not carrying on the business of the company to any extent―In a petition by the liquidator under section 198 of the Companies (Consolidation) Act, 1908 (8 Edw. VII. cap. 69), held (1) that the liquidator was neither entitled in the interests of the creditors nor bound apart from consideration of such interests, to issue a policy in terms of the slip, and (2) that he was under no obligation either to pay or to admit to proof in the liquidation any claim for loss which would have been covered by the policy if it had been issued or for damages for its non-issue-Opinion, per Lord Sands, that if the risk in the slip had run off without loss before the date of the liquidation the liquidator would be entitled to issue a policy in terms of the slip and collect the premium for the company. Company-Voluntary liquidation-Duties of liquidatorHonour obligations of the company-Marine insurance- 66 Slips "taken over by the liquidator amongst the company's papers binding the company in honour, but not in law, to issue policies of insurance in their terms-Liquidator not carrying on the business of the company to any extent-One policy in terms of a slip signed by the liquidator and issued to the broker in the slip, the premium being debited to his account but not paid-Another policy in terms of a slip signed by the liquidator but not issued-In a petition by the liquidator under section 198 of the Companies (Consolidation) Act, 1908 (8 Edw. VII. cap. 69), held (1) that it was ultra vires of the liquidator to sign either policy, (2) that he was under no legal obligation to pay any losses covered by the policies, and (3) that it was his duty to cancel both policies and credit the broker in the issued policy with the premium debited in his account. Petition under the Companies Act. Eric Portlock, F.C.A., 186 Bishopsgate, London, E.C. 2, liquidator for winding up voluntarily the affairs of the Clyde Marine Insurance Co. Ltd., presented a petition to the Court under section 193 of the Companies (Consolidation) Act, 1908 (8 Edw. VII. cap. 69), for the determination of certain questions arising in the liquidation. The petition set forth, inter alia : That the Clyde Marine Insurance Co. Ltd. was incorporated under the Companies Acts, 1908 and 1913, upon the 15th day of June 1915. The registered office of the company is situated in Scotland. The objects for which the said Company was incorporated were, inter alia, to carry on the business 1st Div. of marine insurance in all its branches and to carry Liquidator on all kinds of transit insurance business and generally of Clyde every kind of insurance and reinsurance business Marine except the classes of insurance business and granting Insurance of annuities to which section 1 of the Assurance Co. Ltd. v. Companies Act, 1909, applies. Herbert The company carried on business for some time, but Renwick at the end of June 1920 it ceased to accept or under- & Co. write any further risks. At a general meeting of the company held on the 4th day of January 1921, an extraordinary resolution was passed that the company, by reason of its liabilities, could not continue its business, and that accordingly the company should be wound up voluntarily, and the petitioner was appointed liquidator. Upon 4th March 1921 an application was made by the petitioner to your Lordships to give effect to a resolution duly passed by a meeting of creditors held under section 188 of the Companies (Consolidation) Act, 1908, for the appointment of Walter Frederick Wiseman, F.C.A., partner in the firm of Gerard Van de Linde & Son, Sidney Allison Tokeley, of Sidney Allison & Co. Ltd., and Maurice Diaz, underwriter to the National Benefit Assurance Co. Ltd., as a committee of inspection, and on the 5th day of March 1921 these gentlemen were appointed by the Court as the committee of inspection in the liquidation. The petitioner and the said committee have entered upon their respective duties in the liquidation. In the course of the liquidation questions have arisen on which the petitioner desires the determination of the Court. These questions the petitioner is advised are questions of law and are appended to the respective statement of facts hereinafter set forth. The cases included in this petition are test cases, and the petitioner desires the opinion of the Court on the questions of law raised thereby, not only for his assistance in dealing with these particular cases but also for his assistance in dealing with many other similar cases in which the facts raise the same or similar questions of law. As a preliminary to the statement of the facts in the particular cases now presented for the determination of the Court, it is necessary to state as follows the general course of dealing followed by the company in the transaction of its insurance business. The company transacted its business of insuring marine risks and placing reinsurance of such risks almost entirely through insurance brokers. In accepting risks and issuing policies thereon the course brokers was as follows: of dealing between the company and the insurance to place an insurance, made out a slip containing the The broker, on receiving instructions from a client particulars of the required insurance. The broker then presented the slip to the company, and if the company's underwriter elected to take the risk he initialed the slip on its behalf. The result of this transaction was that the assured was bound at law to declare to the company the exact particulars as to amount, etc., of the interest to be covered under the slip, and in pursuance of this the broker would present to the company a "long slip" or closing slip containing these particulars. On receipt of this the company was bound in honour but not in law to issue a policy in accordance with the particulars on November 30, 1923. of Clyde Marine November 30, 1923. 1ST DIV. the "long slip or closing slip." The policy was never issued until after receipt of the "long slip Liquidator and often not until months after the initialing of the slip, the risk in the meantime having attached, and Insurance possibly a loss having occurred, or the risk might Co. Ltd. v. have run off without loss. When the policy was Herbert issued the company debited the premium to the Renwick broker's premium account, and the premium was then & Co. regarded as paid as between the company and the actual assured, and the company looked to the broker alone for payment. When a loss occurred, the broker having endorsed the loss as adjusted on the policy, submitted it to the company as a claim, and if the company was prepared to admit the claim, it passed it for settlement by causing the broker's endorsement to be initialed on its behalf. On the claim being thus passed for settlement, the company credited the amount to the broker's claims account. The premium account and claims account were settled from time to time, the broker sending the company a cheque for the amount of the premium account and the company giving the broker a cheque for the amount of the claims account. The position between the broker and his client or the actual assured was as a rule unknown to the company, except in so far as it might appear on the policy. A broker may charge his client a del credere commission and guarantee that the underwriter will pay the loss. A broker may or may not retain the policy in his possession. If he does he has a lien on it as against his client for the premium if unpaid and for the general balance of his client's underwriting account. Claims in respect of losses are regarded primarily as debts due from the underwriter to the assured and are credited to the broker as the assured's agent ; but if the policy is in the broker's name and he has an interest therein, either because he is a del credere agent or has a lien against his client on the policy or on the goods insured, the amount of a claim may be in whole or in part a debt due to the broker as principal and not merely as agent for his client. The following are the facts of the particular cases and the questions of law raised thereby and in respect of which the petitioner desires the determination of the Court: Case I. On the 9th December 1920, the company at its head office in London caused to be initialed a slip (copy of which supplied by the brokers hereinafter named is produced and referred to) which was presented by W. H. Dolphin & Co. of 13 Poultry, London, E.C. 2, insurance brokers. The particulars on such slip are as follows: Francs 262100 presented to the liquidator a closing slip (which is produced and referred to), and by means of such presentation requested the liquidator to issue in the name of the company a policy in accordance therewith. No policy has been issued, but Herbert Renwick & Co. of 13 Poultry, London, E.C. 2 (successors to W. H. Dolphin & Co.), are pressing the liquidator to issue a policy in accordance with the closing slip so presented. The petitioner has at present no knowledge as to whether or not there has been a loss in respect of the said risk. The petitioner as liquidator foresaid desires the opinion of the Court on the following questions : 1. Is the company under any legal obligation to issue a policy to the said Herbert Renwick & Co. in accordance with the closing slip ? 2. If the answer to the first question is in the negative, then (a) May the liquidator issue such policy in the name of the company and claim payment of the premium if he considers such a course to be in the best interests of the company's creditors and shareholders ? (b) Is it the duty of the liquidator to issue such policy in the name of the company without regard to such interest? 3. If no policy be issued in the name of the company as aforesaid (a) Is the company under any legal obligation to pay to the assured any loss or losses which would have been covered by such policy or to compensate the assured in respect of the non-issue of such policy? (b) Is it the duty of the liquidator to admit to proof in the liquidation any claim by the assured for any loss or losses which would have been covered by such policy or for damages in respect of the non-issue of such policy? Case II. On his assuming office, the liquidator assumed that in accordance with marine insurance practice and the procedure obtaining at Lloyd's he ought to sign in the name of the company and issue policies to all persons who at the commencement of the liquidation held an initialed slip and after the commencement of the liquidation demanded from him the issue of a policy in accordance therewith, and he accordingly prepared and signed a number of policies pursuant to such demands made by the brokers who held the initialed slips. "Moriner" and/or Steamer, Antwerp to Rio de Janeiro or held covered Office to Some of the policies so prepared and signed by the Office and one month in Customs. liquidator were duly issued by the liquidator to the Francs 262100 on Tissues so valued as per brokers who had demanded them. On these the schedule. 131050 London and Yorkshire. On the 24th February 1921 (i.e. after the com. mencement of the liquidation) W. H. Dolphin & Co. premiums have been debited but not yet paid by the brokers. Others of such policies were not so issued and are still in the hands of the liquidator, he in the meantime having been advised that he was not bound by the practice at Lloyd's and that as liquidator he ought not, unless directed by the Court, to sign and issue such policies. On these no premiums have been debited or paid. The said brokers on behalf of the assured claim that the policies prepared and signed by the liquidator The said policy is in the possession of the company. A copy of it is produced and referred to. The petitioner, as liquidator foresaid, desires the opinion of the Court on the following questions : 1. Is the company or the liquidator under any legal obligation to issue to the brokers or the assured the policies signed by the liquidator as aforesaid but not issued ? 2. If the answer to the first question is in the negative, then? (a) May the liquidator issue such policies and claim payment of the premiums if he considers such a course to be in the best interests of the company's creditors and shareholders? (b) Is it the duty of the liquidator to issue such policies without regard to such interests? 3. Is the company under any legal obligation to pay to the assured any loss or losses which are covered by the policies (a) signed by the liquidator as aforesaid but not issued ? (b) signed and issued by the liquidator as aforesaid ? 4. If the company is not under any legal obligation to pay to the assured any loss or losses which are covered by the policies which have been signed and issued by the liquidator as aforesaid, is it the duty of the liquidator to cancel such policies and credit the account of the brokers with or refund to the assured the premiums debited or paid thereon? 3. That it is the duty of the liquidator to Herbert admit to proof in the liquidation any Renwick claim by the assured for any loss or & Co. losses which would have been covered November 30, by such policy, or for damages in respect of the non-issue thereof. Answers were also lodged for La Société Anonyme de Periandros, Paris (holders of the slips in Case II.). These respondents maintained: 1. That the company or the liquidator is bound to issue to the brokers or to the assured the policies signed by the liquidator. 2. That the company is bound to pay to the assured any loss or losses which are covered by the policies signed by the liquidator whether such policies are issued or not; and 3. That if the company is not bound to pay to the assured any loss or losses which are covered by the policies which have been issued by the liquidator, it is the duty of the liquidator to cancel such policies and credit the account of the brokers or refund to the assured the premiums debited or paid thereon. The Stamp Act, 1891 (54 & 55 Vict. cap. 39), enacts: deemed to be concluded when the proposal of the assured is accepted by the insurer, whether the policy be then issued or not; and, for the purpose Answers were lodged for Herbert Renwick of shewing when the proposal was accepted, reference & Co., London (holders of the slip in Case I. may be made to the slip or covering note or other of the petition). These respondents main-customary memorandum of the contract, although it be unstamped. tained : 1. That the company is bound to issue to the brokers or to the assured a policy in name of the assured in accordance with the "long slip," or "closing slip." 2. That the company is bound to pay to the Section 22. Subject to the provision of any statute, a contract of marine insurance is inadmissible in evidence unless it is embodied in a marine policy in accordance with this Act. The policy may be executed and issued either at the time when the contract is concluded, or afterwards. 1923. |