fraudulent statement must be made with a view to deceive the party who makes the complaint, or, at all events, to deceive the class to whom he may be supposed to belong, although he may not be individually and particularly intended. There must always be evidence that the person charged with the false statement, and the fraudulent conduct had in his contemplation the individual making the complaint, or, at all events, that the individual making the complaint must have been one of those whom he ought to have been aware he was injuring or might injure by what he was doing."

In the present case it has been proved to be the usage amongst bankers to make enquiries of this kind on behalf of their customers, and we think, therefore, that when Goddard wrote the letter of the 9th of November, he must necessarily be considered to have known and contemplated that it would or might be communicated to the customer of the Sheffield Bank (if any) on whose behalf the information was sought; and we are therefore of opinion that, under these circumstances, the customer (though not individually known to Goddard), the representation having been communicated to and acted upon by him, and he having been injured thereby, may sue upon it.

It must, however, be understood that our judgment is confined to the case before us, viz., the case of the customer at whose request the enquiry was actually made, and that it is not intended to apply to any other customer to whom the bank may have subsequently communicated the contents of the letter. For these reasons we think that the plaintiff is entitled to maintain an action on this representation.

Lastly, it is contended on behalf of the defendants, that the signature of Goddard to the letter of the 9th of November, is not sufficient to enable the plaintiff to bring an action against both defendants, as on a joint false representation, for that it either binds Goddard personally, and not the bank jointly with him, or that it binds the bank only, and then Goddard is not liable jointly with the bank; and it was further objected on the part of the bank, that the company, as a principal, was not liable for the fraud of its agent, Goddard, unless it authorised the com

mission of the fraud or ratified it. As to this last point, assuming the case to be one in which a principal is sought to be made liable for the fraud of his agent, we consider that the case of Barwick v. The English Joint Stock Bank (2) is conclusive to shew that the banking company is liable for the fraudulent representation of its manager made in the course of conducting the business of the company.

As regards the objection that the defendants cannot be sued together as for a joint representation, it must be remembered that this is an action of tort, and, in such actions all persons liable for the commission of the tort, whether principals, agents or servants, are liable to be sued jointly. In Cullen v. Thompson's Trustees and others (31) Lord Westbury says, "All persons directly concerned in the commission of a fraud are to be treated as prin- ` cipals; no party can be permitted to excuse himself on the ground that he acted as the agent, or as the servant of another." Besides, in the present case, we hold that the letter of the 9th of November is signed by the bank as well as by Goddard personally, and that as the verdict establishes that the representation was false to the knowledge of Goddard, his knowledge is imputable to the bank, and therefore both are liable to be sued jointly.

For these reasons we are of opinion that both rules must be discharged, and that the plaintiff is entitled to our judgment. Judgment for the plaintiff.

Attorneys-Harper, Broad & Battcock, for plaintiff; Waterhouse & Winterbotham, for defendant.

(31) 4 Macq. H.L. 432,

County Court-Contempt of Inferior Court, not Committed in Face of CourtRight to Punish Offender-County Courts Act, 9 & 10 Vict. c. 95. ss. 113, 114.

A County Court Judge has no power to commit any one for contempt which has not occurred in the face of the Court.

a

By the County Court Act, 9 & 10 Vict. c. 95. s. 3, County Courts held under the Act are to be Courts of Record. By section 113, the judge is empowered to impose a fine not exceeding 51. upon, or to imprison for a term not exceeding seven days, any person insulting the judge during his attendance in, or in going to or returning from the Court, or interrupting the proceedings of the Court, or otherwise misbehaving in Court. At the hearing of a judgment summons County Court Judge made observations reflecting upon the conduct of J., an attorney. The summons was adjourned, and while the case was pending, J. published letters in a newspaper accusing the Judge of tyranny and injustice. The Judge then cited J. to appear before him for contempt of Court. A rule for a prohibition to restrain the proceedings having been obtained,Held, that the rule must be made absolute as there was no authority for the proposi tion that the Judge of an inferior Court had power to deal summarily with contempt not committed in the face of the Court, and there was no reason upon principle in favour of such a power.

Per COCKBURN, C.J., and MELLOR, J.— The fact that the County Courts Act, 9 & 10 Vict. c. 95 (ss. 113, 114), gives a limited power of summarily dealing with contempt committed in face of the Court, but is silent as to contempt committed out of Court, is a strong, if not conclusive, argument against the summary power claimed by the County Court Judge.

Rule for a County Court Judge to shew cause why a prohibition should not issue to prevent him from proceeding in a matter in which he had required one J. A. Jolliffe to appear before him, to be dealt with according to law for a contempt of Court, upon the ground that the Court NEW SERIES, 42.-Q.B.

had no jurisdiction to hear and adjudicate upon the matter.

It appeared from the affidavits that Mr. Jolliffe was an attorney, and had acted for one W. Larcombe, who was the plaintiff in certain County Court proceedings. Judgment was given against Larcombe, and a summons taken out for him to shew cause why he should not pay the costs due from him at the hearing of the summons. The Judge made some observations respecting Mr. Jolliffe, who ap peared for Larcombe. The summons was adjourned and during the period over which it was adjourned Mr. Jolliffe published letters in answer to the Judge's observations in a newspaper called Pulman's Weekly News, upon which summonses were issued for him and the editor to appear before the County Court Judge on a charge of contempt.

Manisty and Oppenheim shewed cause.The County Court Judge had a right to commit Mr. Jolliffe for contempt. A County Court is by Act of Parliament a Court of Record (1), and there are ex

(1) By the County Court Act (9 & 10 Vict. c. 95. s. 3) County Courts held under the Act are to be Courts of Record.

By section 113, "If any person shall wilfully insult the Judge or any juror, or any bailiff, clerk, or officer of the said Court, for the time being, during his sitting or attendance in Court or in going to or returning from the Court, or shall wilfully interrupt the proceedings of the Court or otherwise misbehave in Court, it shall be lawful for any bailiff or officer of the Court, with or without the assistance of any other person, by the order of the judge, to take such offender into custody, and detain him until the rising of the Court; and the judge shall be empowered, if he shall think fit, by a warrant under his hand, and sealed with the seal of the Court, to commit any such offender to any prison to which he has any power to commit offenders under this Act, for any term not exceeding seven days, or to impose upon any such offender a fine not exceeding 51. for every such offence, and in default of payment thereof, to commit the offender to any such prison as aforesaid, for any term not exceeding seven days, unless the said fine be sooner paid."

By section 114, "If any officer or bailiff of any Court holden under this Act shall be assaulted while in the execution of his duty, or if any rescue shall be made or attempted to be made of any goods levied under process of the Court, the person so offending shall be liable to a fine not exceeding 5., to be recovered by order of the Court, or before a justice of the peace as hereafter provided; and it shall be lawful for the bailiff of

R

press decisions to shew that such Courts may summarily punish conduct which tends to obstruct their proceedings. It cannot matter whether the contempt was in or out of Court.

[COCKBURN, C.J.-Does not section 113 of the County Court Act, 9 & 10 Vict. c. 95, limit the power of committing for contempt ?]

In the absence of express provision it must not be assumed that a Court of Record has parted with its jurisdiction. In The King v. Faulkner (2) the Court held that a commissioner in bankruptcy under 1 & 2 Will. 4. c. 56, had no power sitting alone to fine or commit for contempt, but that was because he had not the power which the whole Court had; here a single Judge forms the whole Court. In The King v. Clement (3), where a fine was imposed by a Court of general gaol delivery, Holroyd, J., said, p. 233, "The cases establish that anything done, either for the purpose of obstructing justice, or which will have that effect, may be punished as a contempt of the Court before whom the proceedings are had. Courts, inferior to the Courts at Westminster, may clearly fine and imprison for a contempt, if they are Courts of record, as the Court of quarter sessions, and the Court of oyer and terminer." The learned judge also refers to The King v. Almon (4), where it is shewn that publications libelling the Superior Courts may be punished as contempt. In Re Pater (5), where the Middlesex Sessions fined a barrister for contempt, the order was upheld by this Court.

[QUAIN, J.-That was a case of contempt in the face of the Court.]

In a previous case, Re Crawford (6), this Court refused a habeas corpus to bring up a person imprisoned by the Court of

the Court or any peace officer in any such case to take the offender into custody (with or without warrant), and bring him before such Court or justices accordingly."

(2) 2 Cr. M. & R. 255; s. c. 4 Law J. Rep. (N.s.) Exch. 308.

Chancery of the Isle of Man, for contempt, similar to that in the present case.

[COCKBURN, C.J., referred to The King v. Fleet (7), where there was a criminal information for comments in a newspaper upon evidence before a coroner's jury.]

The question is really whether an inferior Court has less power than the superior Courts in punishing for contempt, and no reason can be suggested for any such difference between these tribunals. They cited Ex parte Fernandez (8), M'Dermott v. The Judges of British Guiana (9).

Sir J. Karslake and Bullen, in support of the rule.-County Courts under 9 & 10 Vict. c. 95. section 113, possess a regulated power of dealing with contempt committed in facie curice, but there is not the slightest pretence for saying that they possess or have ever claimed to possess a power of summarily punishing contempt committed out of Court, such as articles written in a newspaper. There is no presumption in favour of the jurisdiction of an inferior Court. In Owens v. Breese (10), the Exchequer Chamber held that County Courts established under 9 & 10 Vict. c. 95, were not such Courts of Record as were contemplated by the 3 & 4 Will. 4. c. 42, that is, "Courts of Record proceeding according to the course of the common law." And in Levy v. Moylan (11) it was said "there were strong reasons for saying that the Courts held under the 9 & 10 Vict. c. 95, are inferior Courts, although Courts of Record." It cannot be said that it is necessary for the administration of justice that inferior Courts should be entrusted with the jurisdiction which is now claimed. They have become very numerous, and a power which enables the Judge to sit upon the trial of his own case ought not to be extended.

COCKBURN, C.J.-I am of opinion that the rule must be made absolute for a pro

(7) 1 B. & Ald. 379.

(8) 10 Com. B. Rep. N.S. 3; s. c. 30 Law J. Rep. (N.s.) C.P. 321.

(9) 38 Law J. Rep. (N.s.) P.C. 1.

(10) 6 Exch. Rep. 916; s. c. 20 Law J. Rep. (N.S.) Exch. 359.

(11) 10 Com. B. Rep. 189; s. c. 19 Law J. Rep. (N.S.) C.P. 308.

hibition, on the ground that a County Court judge has no authority to punish a person for contempt not committed in the face of the Court. It is very true that it is laid down by high authorities, and it is according to the reason of the thing, that every Court of Record has power to fine and imprison for contempt committed in the face of the Court, while the Court is sitting in the administration of justice. Such a power is obviously necessary for the administration of public justice, which may be interrupted or obstructed unless there is a power to summarily repress such outrages. But it is a very different thing to say that a Court shall have power to fine and imprison for contempts not committed in the face of the Court, and not amounting to an actual obstruction of the course of justice, but only to the use of contumelious language, or the publication of articles or comments reflecting on the conduct of the judge. It is laid down in Hawkins (Pleas of the Crown) and other writers of authority that the power of committing for contempts committed in the face of the Court is given to inferior Courts, but it is nowhere said that they have power so to punish contempts committed out of Court. There is an obvious distinction between inferior Courts created by statute and superior Courts of law or equity. In these superior Courts the power of committing for contempt is inherent in their constitution, has been coeval with their original institution, and has been always exercised. The origin can be traced to the time when all the Courts were divisions of the great Curia Regis-the supreme Court of the sovereign, in which he personally, or by his immediate representative, sat to administer justice. The power of the Courts in this respect was therefore an emanation from the royal authority, which, when exercised personally or in the presence of the sovereign, made a contempt of the Crown punishable summarily, and this power passed to the superior Courts when they were created. It is a very different thing when we come to the inferior Courts, which have never exercised this power, or have never been recognised as possessing it, and I should be prepared to hold that it does not exist. We need not, how

ever, go so far as that in the present instance, for the statute under which the County Courts are constituted itself points out what is the extent of the power to deal with contempt which the legislature intended to confer upon these Courts. The County Court Act, 9 & 10 Vict. c. 95. s. 113, provides that any person insulting the Judge or interrupting the proceedings of the Court may be taken into custody and detained until the rising of the Court, and that the Judge may commit him to prison or fine him a sum not exceeding 51. for any such offence. Now if the County Courts in the absence of express provision possessed the same powers of committing for contempt as the superior Courts, there would be an obvious inconsistency in limiting the imprisonment for a gross contempt in the face of the Court to seven days, and to allow it in the case of a contempt committed out of Court to be extended to months or years. I think, therefore, that we must assume that the Legislature has provided for the only cases in which it intended to invest the County Courts with power to punish for contempt, and as it appears that these Courts have never exercised such a jurisdiction as that which is now claimed, there is an additional reason for thinking that the Act intended there should be a difference between the two kinds of contempt. There can therefore be no doubt, but that there has been an excess of jurisdiction, and the rule must be made absolute.

MELLOR, J.-I am of the same opinion, on both points. I think there can be little doubt that the superior Courts originally derived their power of summarily dealing with contempts from their institution as part of the King's Court. In Hawkins' Pleas of the Crown (Book 2, ch. 3, sec. 1) it is said, "justice is said to have been administered sometimes by the king himself in person, and sometimes by the high justicier."

The foundation of the authority of this Court is that it has existed from time immemorial. It was originally, as the Aula Regia, a supreme Court, and it retains many of the powers which at first belonged to it. On the other hand no precedent can be found for a right in

inferior Courts to punish for contempt, except where the contempt has been committed in the face of the Court. Coming to later times, the County Court Act created a new class of Courts, and their power of committing for contempt is expressly limited by section 113, which leaves the Judges of these Courts to the protection afforded by the general law in proceedings by indictment or information for anything done out of Court.

QUAIN, J.-I am of the same opinion. As soon as it was conceded by the counsel shewing cause, that they could find no case in which an inferior Court had committed for contempt which did not occur in the face of the Court, there was an inference that inferior Courts had no power of committing for such an offence. If there were any ground for holding that the power did exist, I should have some difficulty in saying that it would not require express words in an Act of Parlia ment to take it away, and with regard to the more extensive rights possessed by the Superior Courts, it seems from Wilmot's Notes, p. 254, that "the power which the Courts in Westminster Hall have of vindicating their own authority, is coeval with their first foundation and institution; it is a necessary incident to every Court of Justice, whether of record or not, to fine and imprison for a contempt to the Court acted in the face of it (1 Vent. 1). And the issuing of attachments by the supreme Courts of Justice in Westminster Hall for contempts out of Court, stands upon the same immemorial usage as supports the whole fabric of the common law; it is as much the lex terræ, and within the exception of Magna Charta, as the issuing any other legal process whatsoever." This, too, is to be found in Blackstone, vol. 4. pp. 283, 288. In these authorities the power is confined to those Courts which possess it by an immemorial practice. It has been urged that it would be quite as convenient if the power were possessed by a County Court. But whether this be so or not, such an extraordinary right ought not to be created by inference.

The power of the Judge of an inferior Court of Record is limited to contempts actually before him, as appears from that of a sheriff, of whom Hawkins says in

vol. 2 of Pleas of the Crown, book 2. c. 10. s. 15, "It follows that he still continues a Judge of Record, and may impose a fine on all such as are guilty of contempt in the face of the Court." It will be observed that the contempt here specified is a contempt in the face of the Court. And as the power to deal summarily with contempt out of Court is not given by the County Court Act, I think that we ought not to confer it by implication. Such a power allows the Judge to decide in his own cause, and unless it were absolutely necessary, I do not think that it ought to be bestowed upon the different tribunals at large. The rule must therefore be made absolute.

Rule absolute.

Attorneys-R. D. Hughes, agent for J. H. Jolliffe, Crewkerne, for applicant; G. B. Lefroy, for County Court Judge.

(In the Second Division of the Court.) 1873.

}

Jan. 30. THE QUEEN v. COUSINS (1).

Quo Warranto; Information in the Nature of-Want of Grievance-Delay-Discretion of Court-485 Will. & M. c. 18. 8. 2.

A rule for an information, in the nature of a quo warranto, in respect of an annual office of guardian of the poor, the election to which was on the 14th of May, on the ground that the mode of election adopted was not a proper one, was not applied for till the 13th of January following, and it was then not shewn that any ratepayer had been prevented from voting, or that the result of the election was affected by the mode adopted. In the exercise of its discretion, the Court discharged the rule.

Pinder (on Jan. 13) obtained a rule, calling upon the defendant to shew cause why an information in the nature of a quo warranto should not issue on the ground that the mode of taking the votes by the process called "scratching," at the election on the 14th of May, 1872, when James Bevan Cousins was elected

(1) Coram Blackburn, J., Lush, J., and Archibald, J.