26 / 736
notes. Held, (1) that the manager of a branch of
a Canadian chartered bank had no actual, usual,
or apparent authority to recommend any invest–
ments to clients or effect them as agent for the
bank; (2) that acts by senior officials of the bank
in trying to settle the matter could not be ratifi–
cation by the bank as the rate of interest was so
high as to be ultra vires the bank; and (3) that
the bank manager having been referred to in a
personal, not an official capacity, was not per–
sonally liable for his negligence in not checking
up on the security offered by the client, since he
acted honestly and in good faith. Judgment for
the bank. [Hedley Byrne & Co. v Heller & Part–
ners (1963), C.L.Y/2416 distinguished Bank of
Montreal v Young (1967), 5 C.L. 248].
New Trial — Fresh Evidence
After the plaintiff, ship's painter, had obtained
judgment against his employers
in
respect of
injuries to his wrist which he alleged were sus–
tained in the course of his employment, the defen–
dants received an anonymous message that these
injuries had been received in a fight. Witnesses
of the fight were discovered. On the defendants'
application for a new trial, held (1) that the new
evidence could not have been obtained by reason–
able diligence for use at the trial; (2, that if it
had been given it would have been likely to have
had an important influence on the result; and (3)
that it was apparently credible. Accordingly, a
new trial was ordered. [Day v Harland and Wolff
(1967), 5 C.L. 301].
Champerty and Maintenance
It is not unlawful maintenance for a master to
support his servant's litigation.
The unsuccessful defendant in a libel action by
two paid oxcials (both subscribing members) of
a trade union, who had libelled them in their
capacity as such officials, sued for an injunction
to restrain the union from paying their costs.
There was no express power in the rules to do so
and Rule 46, relating to the administration of
legal assistance,
said
that no
legal
assistance
should be given out of the union funds except to
subscribing members. HeHld, that the action failed
as the assistance was not maintenance and, de–
spite R. 46, the union had implied power to give
it as incieental to its power to employ the officials.
[Hill v Archbold (1967), 5 C.L. 367; (1967),
2 W.L.R. 1180].
Company Law — Loan by Company for Purchase
of its Shares
In 1965, the plaintiff company contracted to sell
its business to the defendant. The original inten–
tion was that the defendant should form a com–
pany to take over the plaintiff's business, assets
and premises. The agreement was made
in a
hurry. The defendant was to take over on 1st
June and was let into possession. The plaintiff
company had a wholly owned subsidiary, Solent
Products (SP), and it was decided that this com–
pany and not a new company would be utilised
for the purpose of the take-over. On 5th June the
plaintiff granted
the defendant an option
for
£6,000 to purchase the total shareholding in SP
for £36,500 which was
to
include the factory
premises, business assets, the benefit of existing
contracts, trade marks and names of the plaintiff
company. The £36,500 was to be payable by SP
issuing a fixed and floating debenture over its
premises and assets extending over eight years
bearing interest at 8 per cent per annum. That
security was to be supported by a personal guar–
antee from the defendant and assets of his worth
£9,000. Held, (1) that the provision of the option
agreement relating to the issue of a debenture by
SP was illegal under Section 60 of the Companies
Act, 1963; (2) that the effect of this was not to
make the whole agreement illegal so as to prevent
recovery of property passing thereunder; it merely
rendered the agreement unnforceable; and
(3)
thatt he parties must as far as possible be restored
to their former positions, and that to save expense
the court would leave them to try to achieve
this by agreement and return to court to argue
costs later. [South Western Mineral Water Co. v
Ashmore (1967), 5 C.L. 399].
SOLICITORS' LIABILITY FOR PAYMENT
OF WITNESSES' EXPENSES
The question of the right of a witness to recover
his expenses from the solicitor who served him
with a subpoena arose recently in
the Dublin
District Court, in a case of Dodds v McCullagh.
In that case an essential witness was a typist, who
had been one of the attesting witnesses to a dis–
puted will. She was present throughout the trial
and her expenses, amounting to £10, at £1 per
day, appeared in the bill of costs of the successful
party to the action. This bill was settled without
going to taxation, a considerably smaller sum
being accepted from the opposite side than that
which appeared in the bill as originally drawn.
The typist brought action in the District Court
22