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share qualifications, and the said directors had executed blank transfers of such shares and lodged the same with the prisoner. "8. The prisoner, with the assent and concurrence of the directors, dictated the policy of the company and managed its affairs. He also paid the expenses of publishing the incriminated matter.

"9. The indictment, counts 8-16 inclusive, charged the prisoner with publishing in the Financial News, the Statist, and a report or circular certain false statements.

"10. The prisoner submitted that he was not a 'manager' within the meaning of s. 84 of 24 & 25 Vict. c. 96.

"11. I directed the jury that if the prisoner was the person who in fact managed the affairs of the company he was a manager within the meaning of the section.

"12. The jury found the prisoner guilty.

"13. I sentenced him to twelve months' imprisonment with hard labour, but respited the execution of the sentence until after the decision of this case.

"The prisoner was admitted to bail.

"The question for the opinion of the Court is whether my direction to the jury was right.

"If right the conviction is to stand; if wrong the conviction is to be quashed.

"December 21, 1904."

"A. T. Lawrence.

Rufus Isaacs, K.C. (Horace Avory, K.C., and Kenneth Chalmers with him), for the defendant. The case ought to be remitted to the learned judge, because paragraphs 7 and 8 do not correctly reproduce the effect of the evidence. These paragraphs shew that the judge thought that the defendant was managing the company in the sense that he was really pulling all the strings of the company, and that the directors were only acting as his puppets and doing as he directed them to do. To do so would not amount to being a manager within the ' meaning of the section, and the case should be sent back in order that the evidence bearing on this question should be

set out.

Assuming, however, that the direction to the jury meant that the defendant if he was de facto the manager of the company (although not the manager de jure) could be convicted under the section, the direction was wrong. A person cannot be made criminally liable for having assumed to act in a certain position to which he has not been appointed. Of course such persons are civilly liable; but that turns on the doctrine of estoppel, which has no application to the criminal law.

In Gibson v. Barton (1) the judgment of the majority of the Court (Blackburn and Lush JJ.) was based on the idea that the manager there was a manager de son tort, and was in the same position as an executor de son tort. The defendant, however, adopts as his argument the dissenting judgment of Quain J. in that case. The case is distinguishable, as the person who there acted as manager was the appointed secretary of the company, and was therefore the servant of the directors.

Coventry and Dixon's Case (2), where Gibson v. Barton (1) was considered by Jessel M.R. and the Court of Appeal, does not add any authority to the case, because the question there was not a criminal one, and the observations of the Lords Justices in regard to the liability of de facto officers of a company were not necessary to their decision.

In In re Western Counties Steam Bakeries and Milling Co. (3) Gibson v. Barton (1) was again referred to, but the question was again not a criminal one. Gibson v. Barton (1), therefore, stands alone as an authority for the proposition that a person who is de facto and not de jure an officer of a company can be made criminally responsible. It cannot have been the intention of the Legislature that a person who without any kind of appointment has acted as an officer of the company should be made liable under the section.

Conflicting decisions have been given on this very point by the Common Serjeant and the Recorder of London at the Central Criminal Court. (4)

The manager contemplated by the section can only mean a

(1) (1875) L. R. 10 Q. B. 329.

(2) (1880) 14 Ch. D. 660.

(3) [1897] 1 Ch. 617.

(4) Reg. v. Atkins, (1900) 132 Central Criminal Court Sessions Paper, 399, 469.

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manager properly appointed, and a person who is not appointed under the terms of the Companies Acts cannot be brought within the terms of the section. [He referred to Reg. v. Portugal. (1)] It is plain from the Companies Acts, 18621890, that the manager of a company must be an officer or servant of the company, and the direction was wrong in not explaining to the jury that they must be satisfied that the defendant was a servant of the company. The section, being a criminal enactment, must be construed strictly: Dyke v. Elliott (2); Attorney-General v. Sillem (3); and the Court must be quite sure that the offence charged is within the letter of the law.

The Solicitor-General (Sir E. Carson), H. Sutton, and R. D. Muir, for the Crown, were not called upon to argue.

LORD ALVERSTONE C.J. In this case the first application made to us was to send the case back for some correction of paragraph 7 with regard to the qualifications given to certain directors, and of paragraph 8 with regard to the actual position of the defendant. This Court has power to send a case back if it finds upon the argument that the case has not been properly stated, and does not raise the proper point; and if the allegations which Mr. Isaacs sought to correct could be said to be the allegations upon which this direction of the learned judge depended, we should have had to consider whether or not we ought to ask the judge to restate it. But it seems to me that the allegations contained in paragraphs 7 and 8 are only matters of history which lead up to the point which the learned judge has submitted to the jury. It cannot be disputed that there was evidence in support of the direction which he gave to the jury which would justify the jury in coming to a conclusion of fact on that direction if the direction is right in law.

The direction was in these terms: "I directed the jury that if the prisoner was the person who in fact managed the affairs of the company he was a manager within the meaning of the (2) (1872) L. R. 4 P. C. 184.

(1) (1885) 16 Q. B. D. 487.

(3) (1863) 2 H. & C. 431.

section." If we must read that direction, which was given after a trial lasting a great many days, and which was no doubt the summary of a much fuller explanation of the facts to the jury-if we are to construe that direction as meaning merely that the defendant was pulling the strings behind the company and dictating the policy of the company, I should entirely agree that that was not being a manager within the meaning of the section.

It is, however, abundantly clear to my mind on reading the whole case that the learned judge when he used the words managed the affairs of the company" did not mean merely directed its policy. It is plain from the earlier part of the case that he was quite alive to the effect of the expression "dictating the policy of the company," and he has in his final direction described the conduct of the defendant as of the person who in fact managed the affairs of the company. I understand that to be a direction to the jury that if the defendant was in fact the manager of the company he came within the section. Now, is that right or wrong? The argument for the defendant contended that the manager contemplated by the section must be a constituted officer of the company, or at any rate a person under the control of directors so as to be the servant of the company, and that therefore the direction is not sufficient because those conditions have not been explained to the jury. Construing the direction in the way I have indicated, does the case come within the section? This section was originally enacted in the year 1857. It was enacted in an Act the title of which is: "An Act to make better provision for the punishment of frauds committed by trustees, bankers, and other persons entrusted with property." Sect. 8 is for all practical purposes identical with s. 84 of the Larceny Act, 1861: "If any director, manager, or public officer of any body corporate or public company shall make, circulate," &c., "with intent to deceive or defraud" "he shall be guilty of a misdemeanour." In my opinion the mere perusal of the language of that section shews that the word "manager" cannot be used in a technical sense. "Director" is possibly a term of art; but ought the word "manager" to have the limited

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meaning for which Mr. Isaacs contends? He says the manager must be an appointed officer of the company at any rate, whether all the formalities of appointment have been complied with or not, and that the word in the section does not apply to a person who in fact manages the affairs of the company. It is not immaterial to note that prior to 1861 the only technical use of the word "manager" was in connection with the official manager, who was an officer of the Court who could act when companies got into difficulties in connection with winding up the affairs of the company. That cannot have been the manager referred to in this section. Therefore we have not before us anything that would lead us to think that the word "manager" is used in any technical or limited sense, and, looking to the mischief intended to be aimed at by the section, it seems to me that a de facto manager is as much a person whose conduct might be the subject of the section as a person who had been formally appointed manager. Therefore, if the case stood upon the section alone, and there was no authority upon it, I have a strong view that the direction of the learned judge was perfectly right, that a person who has in fact managed the affairs of the company is a manager within the meaning of that section.

But I feel it right to say that the argument to which we have listened has not displaced the weight of authority upon the point. Mr. Isaacs has criticised the case of Gibson v. Barton. (1) He has adopted the reasoning of the dissentient judge, Quain J. He has said that that case is not an authority on the present case, because the particular thing done by the person whose conduct was there implicated was something which must be done by an officer of the company. I confess I think that the language of Blackburn and Lush JJ. does not seem to support that distinction. The section there in question (s. 26 of the Companies Act, 1862) says: "And every director and manager of the company, who shall knowingly and wilfully authorize or permit such default," shall incur a penalty. In what sense are the words "director" and manager" used in that section? Says Blackburn J. (2): (1) L. R. 10 Q. B. 329. (2) L. R. 10 Q. B. at p. 336.