The English Law Courts. pete against a third. If so, what is the defi nition of ' fair competition,' what is ' unfair ' which is neither forcible nor fraudulent? It does seem strange that, to enforce freedom of trade, of action, the law should punish those who make a perfectly honest agreement with a belief that it is fairly required for their pro tection. It is a strong thing for the plain tiffs to complain of the very practices they wished to share in, and once did." In Derry v. Peek, Lord Bramwell de livered a still more notable judgment. A special act incor porated a tramway company, provided that the carriages might be moved by animal power, and with the consent of the Board of Trade, by steam power. The directors issued a prospectus contain ing a statement that by their special act the company had the right to use steam power instead o f horses. The plaintiff, Sir Henry Peek, took shares on the faith THE ARCHBISHOP of this statement. The Board of Trade afterwards refused their consent to the use of steam power, and the company was wound up. Sir Henry Peek, having brought an action of deceit against the directors, founded upon this false statement, it was held by the House of Lords, reversing the decision of the Court of Appeal, and restoring that of Justice Stirling, that the defendants were not liable, the statement as to steam power hav ing been made by them in the honest belief that it was true. Lord Hannen, in his judg ment in the Court of Appeal, had revived
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the old discredited distinction between "legal" and "moral" fraud. Bramwell pounced upon him at once. " I hold that actual fraud must be proved in this case to make the defendants liable, and, as I understand, there is never any occasion to use the phrase legal fraud, except when actual fraud cannot be established. Legal fraud is only used when some vague ground of action is to be resorted to, or, generally speaking, when the person using it will not take the trouble to find, or cannot find, what duty has been violated or right infringed, but thinks a claim is somehow made out. With the most sincere respect for Sir James Han nen, I cannot think the expression ' con venient.' I do not think it is an ' expla nation which v e r y clearly conveys a n idea '— at least I am certain it does not to in)' mind. I think it a mischievous phrase, and one which has contri buted to what I must OF CANTERBURY. consider the errone ous decision in this case. The statement " (in the prospectus), Bramwell went on, " was untrue. But it does not follow that the statement was fraudulently made. There are various kinds of untruths. There is an absolute untruth — an untruth in itself, that no addition or qualification can make true, as if a man says a thing he saw was black, when it was white, as he remembers and knows. So as to knowing the truth, a man may know it, and yet it may not be present to his mind at the moment of speaking, or if the fact is
