No. III 6 Geo. I c..18. purpose, the receiving or paying of any money upon such subscriptions, the making or accepting of any assignment or transfer or pretended assignment or transfer of any share or shares upon any such subscription, and all and every other matter or thing whatsoever for furthering countenancing or proceeding in any such unlawful undertaking or attempt, and more particularly the presuming or pretending to act as a corporate body, or to raise a transferrable stock or stocks or to make transfers or assignments of any share or shares therein without such legal authority as aforesaid, and all acting or pretending to act under any charter formerly granted from the Crown for any particular or special purposes therein expressed by persons making or endeavouring to make use of such charter for any such other purpose not thereby intended, and all acting or pretending to act under any such obsolete charter as is before described and every of them (as to all or any such acts matters or things as shall be so acted done attempted endeavoured or proceeded upon after the said four-and-twentieth day of June one thousand seven hundred and twenty) shall be deemed a publick nuisance and nuisances, and the same and all causes matters and things relating thereto and every of them shall for ever hereafter be examined heard tried and determined as common nuisances are to be examined heard tried and determined by or according to the laws of this realm; and all offenders therein being thereof lawfully convicted upon information or indictment in any of his Majesty's courts of record at Westminster or in Edinburgh or in Dublin, shall be liable to such fines penalties and punishments whereunto persons convicted for common and publick nuisances are by any of the laws and statutes of this realm subject and liable; and moreover shall incur and and shall incur sustain any further pains penalties and forfeitures as were ordained and a Præmunire, provided by the statute of provision and pramunire made in the sixteenth 16 R. 2. c. 5. year of the reign of King RICHARD the Second. (3.) (3.) In Rex v. Cawood, 2 Ld. Raym. 1361. 2 Str. 472. it was ruled, that the Court were not obliged to give the whole judgment as in case of a præmunire, but only such part as in their discretion they should think fit, and they adjudged the defendant to pay a fine of 51. and to be im prisoned during the King's pleasure. This case, which occurred two years after the passing of the Act, was only brought before the Courts until the King v. Dodd, 9 East. 516. in which the Court declined to grant an information against the defendant for circulating schemes for a paper manufactory and a distillery, by which large capitals were to be raised in small transferrable shares, there having been a lapse of 87 years since any authenticated proceeding had been taken on this branch of the Act; but they declined giving any opinion how far the case, as stated, came within the Act, as the point might still arise upon indictment or information by the Attorney-General. In Buck v. Buck, 1 Camp. N. P. 547. the plaintiff having employed the defendant to purchase five shares in a concern not incorporated, called the British Ale Brewery, and the defendant having only paid one half of the amount, which he had received and charged, it was ruled by Sir J. Mansfield, C. J. that the plaintiff, on account of the illegality of the concern, could not recover money which was so improperly retained, and a nonsuit was accordingly directed, with leave to move the Court to enter a verdict in the plaintiff's favour, but the case was not brought before the Court. The decision certainly went a very great length, however clearly the society might be brought within the Act, when it was held, that the mere carrier of a sum of money intended to be applied in purchasing a share of the concern, was entitled to purloin the money with which he was so intrusted. In Rex v. Stratton, n. ibid. Lord Ellenborough held, that an indictment could not be sustained for conspiring to deprive a person of the office of Secretary of the Philantrophic Annuity Society, and to prosecute him for obtaining money by false pretence, the Association appearing to be an unincorporated Company with transferrable shares. The subject came into more direct discussion in Rex v. Webb and others, 14 East. 406. which was an indictment against the defendants founded upon the Act for subscribing to form a Society, called the Birmingham Bread and Flour Society: it appearing by special verdict, that the defendants with others, being inhabitants of Birmingham, mutually agreed to be co-partners in making bread, &c. with a capital of £20,000, to be divided into 20,000 shares-no person to hold more than 20-that no person should transfer any share, except the party, to whom it was transferred, should enter into a covenant for the performance of the clauses in the deed-that each member should purchase weekly, for every share, flour and bread, not exceeding in value one shilling. It was further found that the Company was originally instituted from laudable motives, for the purpose of more regularly supplying the town of Birmingham and its neighbourhood with flour and bread-that it was in its original institution, and still is, beneficial to the inhabitants at large at Birmingham and its neighbourhood, but No. III. 6 Geo. I. c. 18. How Merchants or Traders may have their Remedy against the Undertakers. XX. And be it further enacted by the authority aforesaid, That if any merchant or trader at any time after the said four-and-twentieth day of June one thousand seven hundred and twenty, shall suffer any particular damage in his her or their trade commerce or other lawful affairs, by occasion or means of any undertaking or attempt matter or thing by this Act declared to be unlawful as aforesaid, and will sue to be relieved therein, then and in every such case such merchant or trader shall and may have his and their remedy for the same by an action or actions to be grounded upon this statute, against the persons societies or partnerships or any of them who contrary to this Act shall be engaged or interested was prejudicial to the bakers and millers of the town and neighbourhood in their respective trades; and it was ruled, that the indictment could not be maintained. Lord Ellenborough, in delivering the opinion of the Court, took a very full and elaborate view of this part of the Act, in the course of which he observed, that what was described as illegal might be divided into two classes-First, the undertakings described in the preamble, especially those in which the parties pretend to act as a body corporate, or to have transferrable stock-and, Secondly, all other undertakings tending to the common grievance, &c. of the King's subjects, or a great number of them, in their trade, commerce, or other lawful affairs. Upon the view taken of the Statute, he said, the Court thought it impossible to say that it makes a substantive offence to raise a large capital by small subscriptions, without any regard to the nature and quality of the objects for which the capital was raised, or whatever might be the purposes to which it was to be applied. The recital of the Act referred to such dangerous and mischievous undertakings as manifestly tend to the common grievance, &c.-the enacting part, sec. 18. to subscriptions for such undertakings, viz. such as are mentioned in the preamble-the enacting part, sec. 19. to unlawful undertakings and attempts so tending to the common grievance, &c. and to making subscriptions for that purpose. It is therefore, he said, only where the subscription is with reference to undertakings, &c. which the Act prohibits, that it is illegal-the Act does not apply indiscriminately to all subscriptions. The purpose being in this case expressly found to be beneficial, the only remaining question is, whether, as the shares are to the extent pointed out transferrable, the defendants have offended in respect of having raised such a description of transferrable stock? It may admit of doubt, whether the mere raising transferrable stock is in any case per se an offence against the Act, unless it has relation to some undertaking or project which has a tendency to the common grievance, prejudice, or inconvenience of his Majesty's subjects, or of great numbers of them? The mischief intended to be remedied arose from such undertakings and projects, and the suppression of such undertakings and projects seems to be the great object of the Act. But without entering particularly into that point, it may be sufficient to say here, that, in the qualified extent to which these shares are transferrable, it cannot be said that there has been such a raising of transferrable tock as to fall clearly within the scope of the Act. He then particularly adverted to its not being the object of the undertaking to raise stock for the purpose of transfer, as a commercial speculation-to the limited number of shares which any individual was allowed to hold—and to the necessity of entering into a covenant to take a certain quantity of bread or flour weekly, as circumstances shewing the case not to be within the operation of the Act, and judgment was accordingly given for the defendants. In Pratt v. Hutchinson, 15 East. 511. the action was brought on a bond given to the Treasurer of a Building Society, the members of which were to subscribe monthly sums for building houses, to be taken by the subscribers in succession, by lot, such subscribers entering into a bond for the payment of their future contributions. It was pleaded as sufficient to bring the case within the Statute, that, according to the rules, every member should have power to sell his share, provided the purchaser should become a party to the articles; and that no person should be permitted to purchase until he had been first proposed and approved at a meeting of the Society; and that certain tradesmen named should be employed, and no others. The Court called upon the defendant's counsel to state upon what ground it could be contended, that the shares were transferrable within the meaning of the Statute, where the holder had not the power of transferring, except upon the condition of the purchaser being approved. It being urged, that in the preceding case the nuisance was negatived by the special finding of the jury, Bailey, J. observed, that the plea did not allege generally as a question for the jury, that the Society was prejudicial to the public at large, and therefore, unless it be brought within the Statute, it is no answer. An objection being taken on account of the stipulation of employing particular tradesmen, Lord Ellenborough said, the combination must be for some illegal object, but there is nothing illegal in stipulating to employ particular persons only in the building, and the Court decided, that there was no pretence for the objection made upon the Statute. In Carlen v. Drury, 1 V. & B. 154. a question arose as to the legality of a partnership in a Brewery of 1600 shares, to be under the direc tions of managers and a committee. The Lord Chancellor declined entering into the question, whether the partnership fell within the terms of the Act; and decided the case upon a collateral ground, applicable to a partnership to which there was no legal objection. in any such unlawful undertaking or attempt; and every such action and actions shall be heard and determined in any of his Majesty's courts of record aforesaid, wherein no essoign protection wager of law or more than one imparlance shall be granted or allowed; and in every such action the plaintiff shall or may recover treble damages with full costs of suit. No. III. 6 Geo. I. c. 18. XXI. And it is hereby further enacted by the authority aforesaid, That Penalty on if any broker or person acting as a broker for himself or in behalf of any Brokers buyothers, at any time or times after the said four-and-twentieth day of June ing or selling one thousand seven hundred and twenty shall bargain sell buy or pur- any Shares in chase or contract or agree for the bargaining selling buying or purchasing such Underof any share or interest in any of the undertakings by this Act declared takings. to be unlawful, or in any stuck or pretended stock of such undertakers, that then and in every such case every such broker or person acting as such shall not only be disabled and rendered incapable to be or act as a broker for the future, but shall also forfeit and lose the sum of five hundred pounds, to be recovered, to wit one moiety thereof to the use of the King's Majesty his heirs and successors and the other moiety thereof to the use of any person or persons who will inform or sue for the same in any of his Majesty's said courts of record as aforesaid, with full costs of suit. XXII. [Not to extend to undertakings settled before the 24th of June 1718.] XXIII. Provided also and it is hereby further intended declared and Not to preju enacted by the authority aforesaid, That any of the clauses matters or dice the two things in this Act contained shall not extend or be construed to hinder his Corporations Majesty from erecting or establishing the two corporations intended by hereby erected. this Act to be erected and established as is above mentioned or either of them, or to prejudice those two corporations or either of them (when erected) in the exercise or enjoying of the powers privileges benefits or advantages intended to be granted to them respectively by such respective charters or indentures as are above mentioned in that behalf, subject nevertheless to such powers of redemption or revocation as are above in this Act prescribed for that purpose; any thing in this Act contained to the contrary notwithstanding. (4.) XXIV. [Not to prejudice the South-Sea Company.] XXV. Provided always, That nothing in this Act shall extend or be Not to restrain construed to extend to prohibit or restrain the carrying on of any home the carrying on or foreign trade in partnership in such manner as hath been hitherto of any home or usually and may be legally done according to the laws of this realm now foreign Trade in force, excepting only as to the insuring of ships and goods or mer- in Partnership. chandizes at sea, or going to sea and lending money upon bottomry; any thing in this Act to the contrary in anywise notwithstanding. (5.) XXVI. [South-Sea and East-India Companies may advance money on bottomry to their Companies, &c.] XXVII. [Not to extend to Corporations formerly created or to any subscriptions to be made to the capital of the South-Sea.] XXVIII. [Salvo for East-India Company's privileges.] XXIX. [Companies not to lend money to the Crown but on credit of Acts of Parliament.] (4.) The inserting this proviso is a striking instance of superfluous caution, and affords a strong illustration of the weakness of the incidental arguments which are sometimes deduced from particular saving clauses, as limiting the operation of the general purview of the Statute. It is impossible that any Court could have held it necessary to insert a saving clause, in favour of the establishments erected by the very Act which contains the general prohibition. (5.) An idea is sometimes entertained, that partnerships, in general, consisting of more than six persons, are illegal; but the only prohibition upon the subject is that contained in Statute 6 Anne, c. 22. sec. 9. and subsequent Statutes, which prohibit, during the continuance of the Charter of the Bank of England, partnerships of more than six persons taking up money upon their notes, payable on demand in less than six months from the time of borrowing. No. IV. 11 Geo. I. c. 30. 11 Geo. I. .. 30. 6 G. 1. c. 18. [No. IV. ] 11 George I. c. 30.-An Act for more effectual preventing Frauds and Abuses in the Public Revenues; for preventing Frauds in the Salt Duties, and for giving Relief for Salt used in the curing of Salmon and Codfish, in the year One Thousand Seven Hundred and Nineteen, exported from that Part of Great Britain called Scotland; for enabling the Insurance Companies to plead the Geveral Issue in Actions brought against them; and for securing the Stamp Duties upon Policies of Insurance. XLIII. AND whereas by an Act passed in the sixth year of his Majesty's reign, intituled An Act for the better securing certain Powers and Privileges intended to be granted by his Majesty by two Charters for Assurance of Ships and Merchandizes at Sea, and for lending Money on • Bottomry; and for restraining several extravagant and unwarrantable 'Practices therein mentioned, his Majesty was enabled to erect two distinct corporations for assurance of ships goods and merchandizes at sea or going to sea, and for other purposes therein mentioned: And whereas his Majesty hath been graciously pleased, pursuant to the said Act, to erect two distinct corporations for the purposes aforesaid, one by the name and title of The Royal Exchange Assurance, and the other by the name and title of The London Assurance: And whereas the said corporations in pursuance of the said Act and the ends and purposes for which they were so incorporated have from time to time as occasion hath required, entered into and executed great numbers of policies of assurance for the assuring of ships and goods and merchandizes at sea or going to sea and still continue so to do; but by reason of their being bodies corporate such policies of assurance could not be entered into by their subscribing of the same as is the constant usage for private insurers to do, but the respective common seals of the said corporations · are set to such policies of assurance, and by means thereof the manner of proceeding and pleadings in any suit or action to be commenced upon such policy of assurance under the respective common seals of the said corporations are different from the proceedings and pleadings ⚫ in actions and suits commenced upon policies of assurance entered into by private insurers or persons not incorporated in manner as aforesaid; and by reason of the necessity of pleading specially in such cases, the 'whole merit of the case in question cannot oftentimes come into consideration and the jury by the rules of law are often obliged to find a verdict for the whole sum of money assured, though it be never so ་ apparent that in justice only a small part thereof is due to the assured by such policies of assurance; and the said corporations are thereby 'forced to seek relief in courts of equity when the matter in question might be as well determined at once by a jury as it is done in the case of private insurers or persons not incorporated;' For Remedy whereof, The Insurance Be it enacted by the authority aforesaid, That from and after the twentyCompanies may fourth day of June one thousand seven hundred and twenty-five, on all plead the Gene- actions of debt to be sued or commenced against either of the said corral Issue in Ac- porations upon any policies of assurance under the common seal of such corporation for the assuring of any ship or ships goods or merchandizes at sea or going to sea, it shall and may be lawful to and for the said respective corporations in such action or suit to plead generally that they owe nothing to the plaintiff or plaintiffs in such suit or action; and that in all actions of covenant which shall be sued or commenced against either of the said corporations upon any such policy of assurance under the common seal of such corporation for the assuring any ship or ships goods or merchandizes at sea or going to sea it shall and may be lawful for the said respective corporations in such action or suit to plead generally that they have not broke the covenants in such policy contained tions brought against them. No. IV. c. 30. or any of them; and if thereupon issue shall be joined it shall and may be lawful for the jury if they shall see cause upon the trial of such issue to find a verdict for the plaintiff or plaintiffs in such suit or action 11 Geo. I. and to give so much or such part only of the sum demanded if it be an action of debt, or so much in damage if it be an action of covenant, as it shall appear to them upon the evidence given upon such trial such plaintiff or plaintiffs ought in justice to have or is or are entitled unto; any law or custom to the contrary notwithstanding. [ No. V. ] 19 George II. c. 37.-An Act to regulate Insurance on Ships belonging to the Subjects of Great Britain, and on Merchandizes or Effects laden thereon. WHEREAS it hath been found by experience that the making assur 19 Geo. If c. 37. ances interest or no interest, or without further proof of interest than the policy, hath been productive of many pernicious practices, whereby great numbers of ships with their cargoes have either been fraudulently lost and destroyed or taken by the enemy in time of war; and such assurances have encouraged the exportation of wool and the carrying on many other prohibited and clandestine trades, which by means of such assurances have been concealed and the parties concerned secured from loss as well to the diminution of the publick revenue as to the great detriment of fair traders; and by introducing a mischievous kind of gaming or wagering, under the pretence of assuring the risque on shipping and fair trade, the institution and laudable design of making assurances hath been perverted; and that which was intended for the encouragement of trade and navigation has in many instances become hurtful of and destructive to the same:' For remedy whereof be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, That from and after the first day of August one thousand seven hundred and forty-six, no assurance (1.) or assurances shall be made by any person or Ships or Effects, persons bodies corporate or politick on any ship or ships belonging to his &c. of Subjects, Majesty or any of his subjects, (2.) or on any goods merchandizes or Interest or no effects laden or to be laden on board of any such ship or ships interest or Interest. (1.) The Act prohibits all contracts of Insurance, by way of gaming or wagering; therefore, an agreement in consideration of £20 to pay £1000, in case a ship should not save her passage to Canton that season (not being founded upon an insurable interest) is void. (2.) It is doubtful whether a wagering policy was not void at common law, and some-of the earlier cases cited in the Books on Insurance seem to proceed upon that supposition, and by the ordinances of most other countries such Insurances are void, but their legality was established by some cases previous to the Statute, and, except so far as the Statute interferes, they are still admitted as valid, and of course the prohibition does not extend to foreign ships or comme semble the goods on board such ships; and therefore in Thelluson v. Fletcher, Doug. 315. upon an insurance of goods on board ships, the policy to be deemed sufficient proof of interest, it was ruled, that the plaintiff might recover the amount of the defendant's subscription without any proof of the value, or any other evidence; and in Nantes v. Thompson, 2 East. 385. it was held, that it was not necessary in a policy on No Assurance to be made on a foreign ship to aver any interest in the assured, although there be no such words as interest or no interest in the policy (and vide Kellner v. La Messurier, 4 East. 396. in which a question arose as to the necessity and manner of alleging a ship to be foreign, and whether the Statute had rendered any other mode of declaring on the subject of interest necessary than what was usual and deemed sufficient before, but no opinion was given on the point, the case being decided upon a different ground); but in Cousins v. Nantes, 3 Taunt. 513. (being an action on the same policy as the case of Nantes v. Thompson) it was ruled in the Exchequer Chamber, not to be sufficient to shew in the declaration that the ship did not belong to the King or any of his subjects, as supplying the necessity of words shewing that it was a wagering policy, but that it was necessary to be inserted in the contract whether the policy was a wagering policy or not; and that, not being a wagering policy, but an ordinary policy, made for the purpose of indemnifying the person insured, it was necessary to allege the interest in the declaration. |