COLTMAN, MAULE and CRESSWELL JJ. concurred.
Rule refused.

[336] SCOTT AND ANOTHER CHAPPELOW. May 25, 1842. Where, in assumpsit, the plea admitted the contract in fact, but sought to avoid it on the ground of illegality, it was held that such plea set up matter of excuse, and that de injuriâ was a proper replication.-To an action by the drawers against the acceptor of two bills, the defendant pleaded that an illegal company had been formed, that they had accepted bills in furtherance of the purposes of the company, that the plaintiffs had become the indorsees and holders of two of such bills, and that it was agreed between the plaintiffs (having notice) and the company that the bills should be renewed; that, in pursuance of such agreement, the company accepted the bills in suit (the defendant then being a member), and upon no other consideration: Held, that the replication de injuria was good.-Held also, that the marginal note in the demurrer-book, of the points to be argued, is for the information of the court, and not for that of the parties; and that a party whose pleadings are specially demurred to may attack the pleadings of the other side, although he has not set down the points upon which he intends to object.

Assumpsit. The first count of the declaration stated that the plaintiffs, by the name of "Claude Scott and Co.," heretofore, to wit, &c., made their bill of exchange in writing, and directed the same to the defendant, under the name, &c. of "The Talacre Coal and Iron Company," and thereby required the defendant to pay to the plaintiffs 1261. 12s. 2d., with interest thereon, &c.; and the defendant, to wit, by one W. W., his agent in that behalf, then accepted the said bill, and promised the plaintiffs to pay, &c.

Second count, upon a similar bill between the same parties, for the same sum, at six months.

Third count, upon an account stated.

Fourth plea: That before the making of the bills of exchange hereinafter in this plea mentioned, or any of them, and before the making of the bills of exchange in the said first and second counts mentioned, or either of them, to wit, on, &e., it was agreed between Lewis Levason, George Frederick Baker, and divers other persons, in manner following; that is to say, that the said L. L., G. F. B., and the said other persons, should form a public joint-stock company, under pretext of carrying [337] on by means of such company the trade and business of mining, and that the said company should consist of a great number of members, to wit, of 5000 persons; and that the said company should become possessed of, and interested in, divers lands, tenements, hereditaments and personal estate; and the profits, from time to time arising from the trade and business which the said company might carry on, should be divided into a great number of shares, to wit, 23,600 shares; and that the interest in such shares should be vested in the said members of the said company in various proportions; and that the interest in the said lands, &c., should be vested in the said members of the said company in proportion to the numbers of the said shares in which they were respectively interested as aforesaid; and that the said company should act as a corporate body; and that the same shares should be transferable without any restriction, notwithstanding that the said company had not obtained, and notwithstanding that the said company might not obtain, before or during the time of their so acting as such corporate body, or before or during the time while the said shares should be so transferable without restriction, any act of parliament, or charter of incorporation, or any grant by letters patent or otherwise, enabling the said company so to act as a corporate body, or legalising the transfer of the said shares without restriction as aforesaid. And further, that after the making of the said agreement, and before the drawing of the bills of exchange hereinafter in this plea mentioned, or any of them, and before the drawing of the bills in the said first and second counts mentioned, or either of them, to wit, on the day and year last aforesaid, the said L. L., G. F. B., and the said other persons did succeed in forming the said company, and that the same was then formed by, and then consisted of, the said persons, who so agreed to form the [338] same, being a great number of persons, to wit, 2000 persons, who then became and were the members of the said company; and that the said

company did then, in pursuance of the said agreement, purchase for the purposes of the said company, and did then become and be, and thence continually up to and at the several times of the drawing of the several bills of exchange hereinafter mentioned, and at the time of the making of the said bills of exchange in the said first and second counts mentioned, were, for the purposes of the said company, possessed of and interested in divers lands, &c., and did during and at the several times last aforesaid, carry on divers trades and businesses; and that the said lands, &c., whereof and wherein respectively the said company were so possessed and interested respectively, and the profits from time to time arising from the trade and business which they so carried on as aforesaid, were, during and at the several times last aforesaid, divided into a great number of shares, to wit, 23,600 shares; and that the interest in the said shares, during and at the several times last aforesaid, was vested in the members of the said company, for the time being, in various proportions; and that the interest in the said lands, &c., at the said several times last aforesaid, was vested in the members of the said company, for the time being, in proportion to the number of such shares in which such members, for the time being, respectively were interested as aforesaid; and that the said members of the said company were subject to the liabilities of the said company, as between themselves, in like proportion; and further, that during and at the several times last aforesaid the said company did presume to act, and did act, as a corporate body, and did profess that the shares aforesaid were transferable without any restriction, and did pretend to transfer the said shares; and that during and at the said several times last aforesaid, the [339] said shares were transferable without any restriction; and that, at the said several times of the making of the said agreement, and of the formation of the said company, and during and at the said several times last aforesaid, the said undertaking and project of the said company was an attempt tending to the common grievance, prejudice and inconvenience of great numbers of the subjects of Her Majesty, the then and now Queen, in their trade and other lawful pursuits; and further, that no act of parliament was ever passed, and that no charter of incorporation or letters patent ever was or were made or granted, whereby the said company was authorised to act as a corporate body, or whereby the transfer of the said shares or the existence of the said company was rendered legal ; of all which premises the said L. L. and G. F. B. always had notice and knowledge. And whereas at the said time when it was so agreed to form the said company, the said L. L. and G. F. B. were interested in divers of the lands and tenements and hereditaments afterwards purchased by the said company in the manner hereinafter mentioned, and had expended divers sums of money in mining operations therein, and were also possessed of divers machinery and effects then being thereupon; and it was then agreed between the said L. L. and G. F. B., and the other members of the said company, that the said company should purchase the interest of the said L. L. and G. F. B. in the said lands, &c. (including the value of the said mining operations), and the said machinery and effects, from the said L. L. and G. F. B., for the purposes of the said company; and the said company then did accordingly, for the purposes of the said company, purchase from the said L. L. and G. F. B., and then became and were possessed of and interested in, for the purposes of the said company, the interest of the said L. L. and G. F. B. in the said lands, &c. [340] (including the value of the said mining operations therein), and the said machinery, &c., which said lands, &c., machinery, &c., then became and were parcel of the lands, tenements, hereditaments and personal estate whereof and wherein the said company is hereinbefore alleged to have become possessed and interested as aforesaid. And further, that at the said time of the said agreement between the said company and the said L. L. and G. F. B., it was agreed that as an equivalent for, and in exchange and payment for, the said interest of the said L. L. and G. F. B. in the said lands, &c. (including the value of the said operations), and the said machinery, &c., the said L. L. and G. F. B. should be paid by the said company divers sums of money, amounting to the sum, to wit, of 20,0001, and that the said L. L. and G. F. B. should receive from the said company, and become and be the owners of divers, to wit, 1100 of the said shares. And further, that after the making of the said last-mentioned agreement, to wit, on the day and year last aforesaid, the said company accepted divers negotiable bills of exchange, drawn by the said L. L. and G. F. B. jointly, and by the said L. L. and G. F. B. severally, upon the said company, for divers sums of money, amounting, to wit, to the sum of 20,000l., and then delivered the said bills to the said L. L. and G. F. B. on

account of the said sum so agreed to be paid to them as aforesaid; and the said L. L. and G. F. B. then accepted the said bills from the said company, on account of the said sum so agreed to be paid to them as aforesaid. And further, that afterwards, to wit, on, &c., the plaintiffs became and were the indorsees and holders of two of the said bills so accepted by the said company and delivered to the said L. L. and G. F. B. on the account aforesaid. And further, that afterwards, to wit, on the day and year last aforesaid, it was agreed between the said company and the plaintiffs, [341] that the said bills, whereof the plaintiffs were the indorsees and holders as aforesaid, and which were then due and payable, should be renewed in manner hereinafter mentioned ; and thereupon afterwards, to wit, on the day and year last aforesaid, the said company (the defendant then being a member thereof and shareholder therein) accepted the bills of exchange in the said first and second counts of the declaration mentioned, and then delivered the same to the plaintiffs in lieu of, and in satisfaction for, the said bills of exchange, whereof the plaintiffs were the holders and indorsees as aforesaid, and upon no other account and for no other consideration whatever: and further, that the plaintiffs always, before, and at, the said several times of their becoming indorsees and holders of the said bills hereinbefore in that behalf mentioned, and of the making of the agreement with them in that behalf hereinbefore mentioned, and of the said accepting of the said bills in the said first and second counts of the declaration mentioned, and before the plaintiffs ever gave any value or consideration for the said bills whereof they were the holders and indorsees as aforesaid, or either of them, to wit, on the day and year last aforesaid, had notice and knowledge of the premises and matters in this plea mentioned, and every of them. Verification.

Replication; de injuriâ.

Special demurrer, assigning for causes, that the matter pleaded in the said last plea, so far as it relates to the first count of the declaration, is not matter of excuse, or any such matter as can be replied to, in the manner in which it is replied to, in the said replication, so far as it relates as last aforesaid; and that the matters alleged in the said last plea ought to have been traversed directly, and in the negative of the terms therein used or otherwise, and not by the general replication de injuriâ, as they are traversed by the said replication; and that the [342] said last plea so far as it relates to the said first count, contains matter, which is either matter of denial of the defendant having been ever liable to perform the promise in the first count alleged, or else is matter which discharges him from the performance of the said promise; and that the said last plea, so far as it relates to the said first count, shews that the said promise in the said first count mentioned, was illegal and void in its inception, &c. Joinder.

The plaintiffs, in their marginal note, stated that, besides contending for the propriety of the replication, they meant to insist that the plea afforded no answer to the action, and that it was bad in substance.

Gaselee Serjt. for the defendant, first objected that it was not competent to the plaintiff to attack the plea upon this marginal note. From Parker v. Riley (3 M. & W. 230) it appears that where there is a demurrer to a pleading, and the party joining in demurrer does not state in the margin of his demurrer-book any objection to a former pleading, he is not entitled to object to its sufficiency on the argument; especially where it is only cause of special demurrer. [Maule J. The only effect of this objection would be, to put off the argument for the present (b). If the plea is bad in substance, it must be set aside either here, or in error. The marginal note in the demurrer-book is meant for the information of the court, and not for that of the other party. The origin of the rule clearly shews that the marginal note was for the use of the court.] The new rule, Reg. Gen. H. T. 4 W. 4, r. 2 (vide infra, 344, n.), [343] must have been intended for the benefit of the parties. The defendant here is in this situation, that he cannot tell what point he has to argue.

TINDAL C. J. The court do not complain of the difficulty. The marginal note is for their advantage, not for that of the parties. The plaintiffs say the plea is bad

(b) In a case cited as Coleby v. Graves, by Knowles, amicus curiæ, in Parker v. Riley, 3 M. & W. 235, where no notice had been given by the party who joined in demurrer of the objections which he intended to raise, the court of Queen's Bench is said to have postponed the case, in order that the points might be stated in the margin of the demurrer-books.

in substance; by which they must mean that the whole is worth nothing. It does not seem to me that there is any thing in the objection (a).

(a) In the court of King's Bench a rule of M. 17 Car. 1 (A.D. 1641), required the delivery of the paper books to the judges. (Rules and Orders in K. B. and C. P. 1739.) In the same court a rule was made, E. 2 Jac. 2 (A.D. 1686), further regulating the delivery of the paper-books to the judges, and adding, "that the exceptions, which shall be insisted on, upon the argument, shall be marked in the margin of those books." (Ib.) Formerly these marginal notes do not appear to have been communicated to the adverse party. From a passage in Bohun's Institutio Legalis (3d edit. 1724), it appears to have been not unusual for a party to demur specially, and then catch his opponent by bringing on something else that was naught in substance. The above rule was revived by R. H. 38 G. 3 (A.D. 1798); but in Appleton v. Binks (A.D. 1804), 1 J. P. Smith Rep. 361 (S. C. not S. P. 5 East, 148), where there was a general demurrer, the court complained that in that case, as in some others, the points to be argued were omitted to be stated in some of the papers. In the demurrer-books, made up by the defendant, they were stated; and Lawrence J. observed that, the party who objects to the pleadings and makes the points should leave a copy of them with the two other judges to whom he does not deliver paper-books.

In Hilary term, 48 G. 3 (1808), the following rule was promulgated in this court: "It is ordered, that from henceforth, in all special arguments in this court, the exceptions which are intended to be insisted upon, shall be marked in the margin of the books to be delivered to the respective judges;" (1 Taunt. 203) being to the same effect as the rules in K. B.

In Clarke v. Davies, 7 Taunt. 72, 2 Marsh. 386 (1816), upon a general demurrer to a plea in bar in replevin, it appeared that the defendant had delivered paper-books, in the margin of which were stated two points, which the defendant meant to make on the argument, to invalidate the plea; and the plaintiff had delivered paper-books, in the margin of which was stated a point which the plaintiff meant to make on the argument, as shewing that the defendant's cognizance was bad; the court were at first inclined to consider that the effect of the practice established in this respect, was, that the plaintiff, by delivering paper-books which contained that point only, confined himself to that point, and abandoned the defence of the points, made by the defendant, as untenable, and could not be permitted to argue them; but Vaughan Serjt. for the plaintiff, stating that the parties had supposed it sufficient, if each called the attention of the court to those points which himself intended to make, and that it was for the opposite party to supply the points which he intended to make, the court permitted the plaintiff to speak to all the points.

In Trin. T. 11 G. 4 (1830) this court made the following rule:-"It is ordered, that from henceforth, in all special arguments in this court, notice in writing of all the points which are intended to be insisted upon by each of the parties, be delivered to the judges at their chambers two days before the day on which the case shall be set down for hearing, either by marking the points in the margin of the books delivered to the judges, or on separate paper; and that each of the parties do, within the same time, leave a copy of such notice at the chambers of the Lord Chief Justice, to be delivered to the adverse party upon his application." (6 Bingh. 802.)

In Grottick v. Phillips (9 Bingh. 721, 723 (1833) when the case was called on for argument, it appearing that the party demurring had omitted to state in the margin of the paper-books the points to be discussed, the court were about to give judgment for the plaintiff, but upon the application of Coleridge Serjt., allowed the matter to stand over-intimating at the same time, that in future the penalty of immediate judgment would always be attached to the omission by the party demurring to state the points of his argument.

The other courts, without adopting so strict a course, appear to have limited the parties upon the argument to the points stated in the margin. See Darling v. Gurney, 2 Dowl. P. C. 101, 104 (1833). S. C. not S. P. 2 C. & M. 226.

By the new rules Reg. Gen. H. T. 4 W. 4 (1834), r. 2, it is required that "in the margin of every demurrer, before it is signed by counsel, some matter of law intended to be argued shall be stated; and if any demurrer shall be delivered without such statement, or with a frivolous statement, it may be set aside as irregular by the court or a judge, and leave may be given to sign judgment as for want of a plea. Provided

[344] Gaselee Serjt. Secondly, the replication is bad; for it puts in issue matter of record. The plea states that the company had no charter; which is matter for the [345] court. [Tindal C. J. That objection is not pointed out by the defendant as a cause of demurrer.]

Then the plea is not matter of excuse; it is pleaded either in denial or in discharge of the contract alleged in the declaration, and to such a plea the replication de injuria is insufficient; Whittaker v. Mason (2 New Cases, 359). The plea discloses a contract which was illegal in its inception, and states that the plaintiff knew of the illegality; this therefore is clearly not the admission of a contract, the non-performance of which the defendant seeks to excuse. In Parker v. Riley (3 M. & W. 230) it was held, that when a plea to a declaration on a contract amounts to the general issue, the replication de injuriâ is bad; and it was intimated as the opinion of the court, that it is also bad where the plea is in avoidance of the contract itself. In Humphreys v. O'Connell (7 M. & W. 370), indeed, to an action by an indorsee against the acceptor of a bill of exchange, where the defendant pleaded that it was accepted for a gaming debt, and that the plaintiff, before the indorsement to him, had notice thereof, the replication de injuriâ was held good; but that was upon the ground that the plea did not seek to avoid the contract, but [346] only contained matter of excuse. [Tindal C. J. That case may be supported upon the supposition that the plea was considered bad.] The case was decided upon the authority of Isaac v. Farrar (Tyrwh. & Gra. 281, 1 M. & W. 65); where, in assumpsit by the indorsee against the maker of a promissory note, the defendant pleaded special circumstances, which, he alleged, amounted to a gross fraud and imposition upon him; and that the note had been indorsed without consideration to the plaintiff, and with notice. The replication de injuriâ was held sufficient there, upon the same ground, namely, that the plea amounted only to matter of excuse for the non-performance of the promise, and to one ground of defence only. In the judgment of the court, as delivered by Lord Abinger C. B., it is said: "The plea confesses that the defendant made the note in question, and indorsed it to Richardson, who indorsed it to the plaintiff, which constitutes a primâ facie case of liability, and an implied promise to pay the amount to the plaintiff'; and it avoids the effect of that admission, by shewing that the note was made and indorsed without value bonâ fide paid, whereby the defendant was excused from performing that promise.' In that case there was no illegality in the contract; for there is nothing illegal in accepting a bill without consideration; but here, there is illegality alleged which vitiates the whole contract. [Cresswell J. The want of consideration in that case did not arise after the contract.] In this case the defendant alleges, in effect, that there was no contract at all, inasmuch as that declared on was illegal. In Solly v. Neish (2 C. M. & R. 355, 5 Tyrwh. 625), in assumpsit for money had and received, the plea was that the money so received by the defendant, was the amount of the proceeds of the sale of goods consigned to him by P. and C. as their own goods, with the plaintiffs' know[347]-ledge and assent (but which, in fact, were the goods of P. and C. and the plaintiffs jointly), as a security for any money the defendant might advance to P. and C.; with power of sale to reimburse himself for such advances; that the defendant not knowing that the plaintiffs had any interest in the goods, made advances to P. and C. to the amount of 60001. on the security of the goods which he afterwards sold, concluding with a set-off. It was held that this plea was-not matter of excuse, but -in denial of the promise, and that, therefore, the replication was bad (a). [Maule J. that the party demurring may at the time of the argument insist upon any further matters of law, of which notice shall have been given to the court in the usual way."

This rule has not been considered by this court as altering the former practice with respect to the marking of the points for argument, although the penalty denounced in Grottick v. Phillips does not seem to have been enforced; Brogden v. Marriott, 2 New Ca. 473, 479 (1836).

But see Lacey v. Umbers, 3 Dowl. P. C. 732 (1835), in the Exchequer (in which court there does not appear to have been any rule corresponding with that in this court of T. T. 11 G. 4). Verbeke v. Pearce, 1 Arnold, C. P. 244 (1838).

In Ross v. Robeson, 3 Dowl. P. C. 779, a defective marginal note was permitted to be amended by the court of Exchequer.

(a) It was held bad also on the ground that the plea claimed an interest in the money, and derived an authority from the plaintiff.