Dix proceeded to argue the other points. The next objection to the first count is, that although it avers a publication of notice of the rate having been made in Mayo and Robeen, it has omitted to allege any such publication in the other Electoral Divisions. The 70th section of 1 & 2 Vic. c. 56, requires such a publication. O'Donel. The 71st, 73rd and 78th sections of the same Act, which create the liability for rate and direct its collection, in no way allude to the necessity of prior publication.-[BALL, J. The 71st and 73rd sections speak of rates "made under the authority of this Act." Could a rate be said to have been made under the authority of this Act, if notice of it were not published in compliance with the 70th section?]-Even admitting proof of such publication to be necessary at the trial, it does not follow that we should aver it in the declaration. [BALL, J. I am not prepared to say that I can assent to that proposition.]-At all events the demurrer is too large; we have averred publication in Mayo and Robeen; and so far, there fore, in this respect the first count is good. The demurrer should have been confined to that part of the count which goes for rates due in the other Electoral Divisions; the demurrer was so limited in The Dean and Chapter of Bristol v. Guyse (a). Longfield, in reply. A count which is bad in part is bad in the whole.-[JACKSON, J. The count is divisible; it proceeds for separate rates.]-The defendant thinking that he had ground of objection to the whole of the count, demurred to it; and then thinking that he had further objections to different parts of it, he mentions them singly. H. T. 1849. THE GUAR- THE POOR v. BROWNE. Jan. 17. A count in an action for poor's rate due in four Electo ral Divisions of the Union averred, as to two of those Electoral Di visions, publi cation of notice of the rate having been made, but omitted to aver such publication as to the two other Electoral Divisions; Semble, that the count was bad in regard to the two latter Electoral Divisions. Held, however, that the cause of action being divisible, the demurrer should have been confined to the bad part of the count; and that ha ving been whole count, aimed at the the demurrer must be over ruled as too large. A demurrer to a declara tion containing several counts commenced thus:-" And the defendant, by, &c., comes, &c., and saith that the said declaration, and the matters therein contained in manner and form as the same are above stated, are not sufficient in law ;" and then proceeded to assign causes of demurrer to each count separately. Held, that as some of the counts (Semble) were good, the demurrer was too large and must be overruled accordingly. (a) 1 Saund. Rep. 108. H. T. 1849. THE GUAR- OF BALLIN- V. BROWNE. DOHERTY, C. J. You have objected to the entire count, which can only be said to be bad on the ground now put forward with respect to two of the Electoral Divisions. The cause of action is clearly divisible; you should have pointed your demurrer to the bad part only. On the ground that it is too large, we overrule the demurrer, so far as it complains of non-publication of notice of the rate having been made. In an action for poor's Dix and Longfield objected to the first count, inasmuch as it rate, brought combined several distinct causes of action.* Neither the ratepayers against an immediate lessor or paupers of one Electoral Division are interested in the other Elecby the Guardians of the toral Divisions. The Guardians stand in a distinct fiduciary situation Union, the to each Electoral Division, and cannot therefore join either in one count, or even in one action; they are here endeavouring to sue in in one count of different rights. An executor cannot join a claim in his own right plaintiffs may combine in one declaration, or it, claims for rate due from with one in his right as personal representative.-[JACKSON, J. Or the defendant in respect of suppose a man executor to several persons, he could not join demands several Elec toral Divisions in the several rights.-BALL, J. This objection seems to rest of that Union. Semble, in this much upon the same footing as that of multifariousness in a bill in case, and so Held in Cas equity, in which however, although there may be several demands, tlebar Union v. Browne (infra, yet unity of title in the plaintiffs is considered a sufficient answer to in notis.) the objection.] O'Donel and Napier. The objection that the plaintiffs have combined in one suit several distinct demands in respect of different Electoral Divisions is limited by the demurrer to the first count, and therefore must be confined to it in argument. It fails as to that count, duplicity not being any good ground of objection to a count: Shepherd v. Shepherd (a). Independently of this answer, we say that although the (a) 1 Man. Gr. & Sc. 849. * On the following day this objection was made in a similar case, The Guardians of the Poor of Castlebar Union v Browne, in this Court, but was unanimously disallowed. Common Pleas. THE GUAR- บ. BROWNE. demands may be different, yet the title of the plaintiffs is the same, H. T. 1849. and they do not stand in a distinct fiduciary situation with respect to each Electoral Division. For many general purposes of the entire Union they may levy a rate which would fall equally on all the Electoral Divisions. And we have averred generally that the rate was made for the purpose of meeting expenses incurred under 1 & 2 Vic. c. 59, and 6 & 7 Vic. c. 92. In Cortis v. The Kent Waterworks Company (a) several rates were proceeded for jointly. At all events, we dispose of this objection by showing that the demurrer is too large, it being to the whole declaration. Where a demurrer commences thus, "And the defendant, &c., says that the said declaration is insufficient in law," and then proceeds to assign separate causes of demurrer to each count of the declaration, it is in form a demurrer to the whole declaration; and if any count be good, the plaintiff is entitled to judgment, the demurrer being too large: The Parrett Navigation Company v. Stower (b). Longfield, in reply. To the case of Hinde v. Gray (c) there is a note by Sergeant Manning which proves that the system of overruling demurrers as being too large was imported from Courts of Equity, and has no foundation in law. That note has been approved of by Parke, B., in 1842, in Briscoe v. Hill (d), and again in 1845, in Slade v. Hawley (e). In the former of these cases he says:-" Take, for instance, the case "of a general demurrer to two counts, one of which is good and the "other bad, the plaintiff ought to have judgment on the good count, "and not on the other; in short, the Court should look at the whole "record and see what is the proper judgment to give upon the "whole." Counsel also mentioned Byrne v. O'Flaherty (f). The judgment of the Court upon these points was withheld until the conclusion of the argument upon the whole case. (a) 7 B. & C. 314. (c) 1 Man. & Gr. 201. (e) 13 M. & W. 760. (b) 6 M. & W.564. (d) 10 M. & W. 741. (f) 6 Ir. Law Rep. 90. H. T. 1849. THE GUAR- ROBE UNION v. BROWNE. Dix. It does not appear that the parties in the first count alleged to have allowed the rate (as required by 6 & 7 Vic. c. 92, s. 10) had any authority so to do. The plaintiffs do not show that the Elective Guardians had ceased to exist as such, and that "paid officers" had been duly substituted for them.-[JACKSON, J. The fluctuations amongst the members of a body such as a Board of Guardians does not alter the identity of that body. Paid officers becoming Guardians by appointment seem to be no less Guardians Held, in Cas- than persons elected to the office.]-Persons falling under the denoBrowne (infra, mination of "paid officers" may, for many purposes contemplated in notis), that the parties who by the Acts for Relief of the Poor, be co-existent with Elective In a count for poor's rate, Semble, in this case, and tlebar Union v. allowed the rate, and their Guardians, and yet have no power either to make or allow a rate: authority to do so (under 6 & 1 & 2 Vic. c. 56, s. 31.* 7 Vic. c. 92, s. 10), were sufficiently set forth by an averment, "that one A B, to wit, a paid officer, who was then and there the Chairman of the day of the said Board, and one C D and one E F, to wit, two paid officers, to wit, two Guardians then present at said Board," &c., allowed the rate. O'Donel. We have followed the words of the Act 6 & 7 Vic. c. 92, s. 10, in averring that "one William Robert Lecky, to wit, a paid officer, who "was then and there the Chairman of the day of the said Board, "and one Arthur Thomas and one William Carey, to wit, two paid "officers, to wit, two Guardians then present at said Board," &c., allowed the rate. The fact of the demurrer being too large, as insisted upon by us with respect to the point last argued, if admitted by the Court, will dispose of this objection also. Dix, in reply. Even supposing that so far as the averment relates to the allowance of the rate by William Robert Lecky it is properly made, yet the other two persons are only described under two scilicets, which if struck out leaves those gentlemen without any allegation of title, and if retained we must take the first as their proper description, viz., "paid officers ;" and then they are equally without title, it not being shown how, as such, they are authorised to allow a rate, or * This objection was upon the following day made by the same Counsel in this Court in an exactly similar case, The Guardians of the Castlebar Union v. Browne, and was unanimously disallowed. Common Pleas. that the Elective Guardians were then extinct. The Act requiring H. T. 1849. that the allowance should be made not only by the Chairman of the day but also by two of the Guardians present, our objection must prevail. The judgment of the Court on these points was withheld until the conclusion of the argument upon the whole case. Dix and Longfield. To the four last counts we object; firstly, because they do not set out the title of the plaintiffs to sue; secondly, nor specify with sufficient certainty the rateable hereditaments,* which we say should, as in the first count, have been identified by number, or in some other effectual manner. In suing for tithe, the lands out of which THE GUAR- THE POOR v. BROWNE. Jan. 18. In an action Poor of Bal"the Guardians linrobe Union." In a similar action the plaintiffs were stated to be In an action against an immediate lessor, for poor's rate, it is not necessary to state the respective numbers (as appearing in the rate-book) of the several rateable hereditaments in describing them; generality of statement in this respect being admissible, as the defendant may obtain all necessary information on the subject from the rate-book; Semble, in this case; Held so, in Castlebar Union v. Browne (infra, in notis). A count in an action against an immediate lessor, for poor's rate stated that the defendant became liable to pay the amount of the said rate so remaining due and unpaid as aforesaid by the defendant in respect of the said hereditaments situate, &c., for which respectively he as such immediate lessor was by virtue of a certain Act of Parliament," in due form of law rated as aforesaid." Whether this referential averment, in the absence of any other allegation that the defendant was rated, is sufficient, Quare? A special demurrer to this count, assigning as cause of demur. rer that the count did not state "how, or in what manner the rate was imposed, or how the defendant is liable to the said rate," was held not to point out with requisite precision the inaccuracy of the above referential averment. * In the case of The Guardians of the Poor of Castlebar Union v. Browne, argued upon the 19th of January in this Term by the same Counsel, to counts similar to the four referred to in the text, objections the same as those firstly and secondly above named were taken upon special demurrer, but were disallowedDOHERTY, C. J., saying, "these objections were made in the case of The Ballinrobe Union v. Browne yesterday before us, but the demurrer there being imformal it was unnecessary to make any positive decision upon them. Now, however it is requisite that we should do so. We do not attach any weight to them. There are no precedents for such declarations; being therefore unfettered in that way, we should be reluctant to encourage, without any satisfactory reason, prolixity in the pleadings in such actions. For all purposes of justice and utility we think that the title of the plaintiffs is sufficiently set forth; and should the defendant require any greater particularity of information as to the rateable hereditaments, he can have no difficulty in obtaining it from the rate-book, which contains all the information possessed by the plaintiffs themselves upon the subject. We overrule the demurrer." |