Davoren v Wootton

• Jurisdiction: Ireland
• Judgment Date: 14 February 1900
• Date: 14 February 1900
• Court: Court of Appeal (Ireland)

Appeal.

Before LORD ASHBOURNE, C., and FITZ GIBBON, WALKER, and HOLMES, L.JJ.

DAVOREN

and

WOOTTON

Alford v. BeggsUNK 12 Ir. L. R. 528.

Bowker v. EvansELR 15 Q. B. D. 565.

Chadwick v. Holt 8 De G. M. — G. 584.

Clarke v. Dickson E. B. — E. 148.

Earl of Leitrim v. MaddisonUNKIR I. R. 3 C. L. 601.

Flinn v. PerkinsUNK 32 L. J. Q. B. 10.

Garth v. CottonENR 1 Dick. 183.

Hambly v. TrottENR 1 Cowp. 371, 376.

In re Duncan; Terry v. SweetingELR [1899] 1 Ch. 387.

Johnston v. Great Northern Railway CompanyUNK 26 L. R. Ir. 691.

Kirk v. ToddELR 21 Ch. D. 484.

Peek v. GurneyELR L. R. 13 Eq. 79; 6 H. L. 377.

Peek v. GurneyELR L. R. 6 H. L. 377.

Peek v. GurneyELR L. R. 6 H. L. at p. 393, per Lord Chelmsford.

Perry v. Phelips 10 Ves. 33.

Phillips v. HomfrayELR 24 Ch. D. 439.

Phillips v. HomfrayELRELR 24 Ch. D. 439; 11 App. Cas. 466.

Sadlier v. RobinsENR 1 Camp. 253.

Smith v. EylesENR 2 Atk. 384.

Stanhope v. StanhopeELR 11 P. D. 103.

Twycross v. GrantELR 4 C. P. D. 40.

Executor — Liabilities — Action for damages for fraudulent misrepresentation — Judgment against defendant directing an inquiry for the purpose of ascertaining amount of damages — Appeal by defendant — Death of appellant pending appeal — "Actio personalis moritur cum persona."

Von. I.] CHANCERY DIVISION. 273 DAVOREN v. WOOTTON (1). .Executor—Liabilities—Action for damages for fraudulent misrepresentation—Judgment against defendant directing an inquiry for the purpose of ascerÂtaining amount of damages—Appeal by defendant—Death of appellant pending appeal—" Actio personalis moritur cum persona." The plaintiff brought an action against several defendants alleging that by their fraudulent misrepresentations he had been induced to take shares in a Company promoted by them which proved to be valueless, and claiming damages. The Master of the Rolls held that the plaintiff had been induced by the fraudulent misrepresentations of certain of the defendants to take the shares in question, and held the said defendants answerable for the plaintiff's loss : his judgment: ordered the said defendants to pay to the plaintiff the amount paid by him in respect of the shares with interest less by the value of the shares, and he directed an inquiry to ascertain the value of the shares. The said defendants appealed from this judgment, two of them joining in their appeal, the others appealing separately. After the appeals were opened, and before the arguments were concluded, one of the two appellants who joined in their appeal, died: Reid, that the rule actin personalis moritur cum persona applied, and that the proceedings could not be continued against the personal representatives of the deceased appellant. MOTION to the Court of Appeal to continue proceedings on the death, pending argument, of an appellant. In an action brought to recover damages for fraudulent misÂrepresentation by the judgment of the Rt. Hon. the Master of the Rolls, dated the 25th July, 1899, it was declared that the plaintiff was induced by the fraudulent misrepresentations and fraudulent omissions in the prospectus of the Components Tube Company, Limited, issued by the defendants Robert Wootton, and four others therein named, and each of them, to subscribe and take thirty shares in the said Company : that the plaintiff was induced by the unÂlawful conspiracy of the said defendants, and by the acts done, -and misrepresentations made in pursuance thereof to subscribe for (1) Before LORD ASRBOURNE, C., and FITZ GIBBON, WALKER, and HOLIES, L.JJ. 1900—VOL. I. 274 THE IRISH REPORTS. [1900.. and take the said shares : that the said prospectus was fraudulent within section 38 of the Companies Act, 1867, as against the plainÂtiff on the part of the said defendants and each of them: that the said defendants were answerable to the plaintiff for all loss sustained, and money paid by him in respect of the said shares : that the said defendants should pay to the plaintiff the sum of £30 and interest thereon as mentioned until the date of payment, less by the value of the shares when ascertained by the inquiry thereinafter directed, together with the costs of the action when taxed and ascertained : that the following inquiry should be made, that is to say, an inquiry as to what was the market value of the said shares at the date of the said order (1) : that upon the said defendants on or before the 10th day of August then next, lodging in Court to the credit of the action the sum of £1600 to abide the order of the Court in respect of costs or otherwise in this action, execution upon foot of this judgment be stayed until the 1st day of November then next. It appeared that there were several similar actions pending in the Chancery Division by other shareholders in the same Company against the defendants, and that the present action was a " test " action. Robert Wootton, and one of his co-defendants, Frederick Cuthbert, joined in appealing by a single notice of appeal from the order of the Master of the Rolls. Three other defendants also appealed, serving separate notices of appeal. Two of the latter were represented by distinct counsel, and one appeared in person. All the appeals were heard together : and after counsel forWootton and Cuthbert had opened their appeal, but before they had replied to the respondent's arguments, Wootton died. His counsel at once called the attention of the Court to the matter, and in the reply confined their argument to the case of their surviving client. At the conclusion of the argument the Court reserved judgment. Before judgment was given on the appeals, counsel for the re (1) The order of the Master of the Rolls was subsequently (1st March, 1900), affirmed by the Court of Appeal, with the variation, however, that the value of the shares was to be ascertained as of the date when the writ was issued.—REP. spondent obtained liberty from the Court of Appeal to serve such Appeal. notice as they might think fit to bring the persons representing 1900. DA.VOREN the deceased appellant before the Court. The respondent accord- . ingly served the following notice of motion :— WOOTTON. " Whereas, Robert Wootton, one of the above-named defendants, against whom a decree in this cause was made by the Master of the Rolls, on the 25th day of July, 1899, appealed with the said defendant Cuthbert from the said decree (from which the other co-defendants also appealed) to Her Majesty's Court of Appeal in Ireland : and whereas the said Robert Wootton. died during the arguments of said appeal, and before judgment therein, and the said cause is now standing for judgment in the said Court of Appeal, but no legal repreÂsentation has yet been raised to the estate of the said Robert Wootton. low, you and each of you are hereby required to take notice that in default of a legal personal representative being raised to the estate of the said Robert Wootton, deceased, before the date hereinafter mentioned, or the executor or executors named in any will which he may have made taking the necessary steps before said date to enable said appeal to be duly prosecuted on behalf of the representatives of the said Robert Wootton, deceased, counsel on behalf of the plaintiff, the respondent in said appeal, will, on the 12th day of Februray, 1900, at the sitting of the Court, apply to the Court of Appeal for liberty to proceed to judgment in the said cause, and that the said appeal so taken by the said Robert Wootton, deceased, be dismissed with costs, and if necessary that a personal representative may be appointed to represent the estate of the said Robert Wootton, deceased, in said cause for the purpose of having said appeal dismissed with costs in default of the due prosecution...