WILLS v. BRIDGE. 1849. May 31. COVENANT by the secretary of "The Neptune Marine An indenture, whereby seve Insurance Company "(a) for calls on shares held by the ral persons defendant. At the trial, before Alderson, B., at the London Sittings in Easter Term, 1849, it appeared that the defendant was the registered proprietor of sixty shares in the Company, thirty of which he had purchased of one C. Hill, twenty of W. Fawcett, and ten of H. Hill. These shares were transferred to the defendant by an indenture between C. Hill, W. Fawcett, and H. Hill of the first part, the defendant of the second part, and certain trustees appointed by the board of directors of the third part; whereby, after reciting that "the defendant was desirous of purchasing sixty shares in the capital of the Company then held by the said C. Hill, W. Fawcett, and H. Hill," &c., also, "that the sum of 40%., in respect of each of the said shares, remained unpaid," it was witnessed, "that, in consideration of the sum of 1057. paid to the said C. Hill, W. Fawcett, and H. Hill by the defendant," the receipt whereof they acknowledged, "the said C. Hill, W. Fawcett, and H. Hill assigned and transferred unto the defendant, his executors, &c., all those the said sixty shares, numbered &c., of them the said C. Hill, W. Fawcett, and H. Hill in the capital of the Company or copartnership called &c., and all their interest in the same shares, and also all dividends, bonuses, and proceeds which thenceforth should become payable in respect thereof," &c.: "To hold the same, together with all such power and authority as the said C. Hill, W. Fawcett, and H. Hill could confer for enabling the defendant, his executors &c., to receive all profits and benefits, and to exercise all rights in respect of the same shares, unto the (a) See Wills v. Sutherland, p. 211. jointly convey their separate interests in cer an incorporated Company, does not require se veral stamps, but one ad valorem stamp is sufficient. 1849. WILLS v. BRIDGE. defendant, his executors, &c., for his and their own use and benefit," &c. This indenture was stamped with a 30s. stamp, under the 55 Geo. 3, c. 184, Schedule, tit. "Conveyance." It was objected, on the part of the defendant, that the stamp was insufficient; but the learned Judge admitted the deed in evidence, and a verdict was found for the plaintiff, leave being reserved for the defendant to move to enter a nonsuit or for a new trial. E. James moved accordingly (a), and argued, that, as this was a transfer by three parties of their separate interests in a certain number of shares, there should have been three stamps, calculated on the consideration paid to each for the shares sold by him, or at all events one ad valorem stamp of a higher denomination: a joint transfer by one deed of this description was an evasion of the stamp laws. Cur. adv. vult. ALDERSON, B., now said:-This was an application for a new trial, or to enter a nonsuit. The question at the trial was, whether the deed, which was a joint deed to convey sixty shares, whereas in truth, with regard to the persons conveying, one was interested in thirty, the other in twenty, and the other in ten shares, was admissible, the ad valorem stamp being calculated on the consideration paid for the whole shares collectively. There can be no doubt that such a deed, executed by the parties, conveys the separate interests of each. But it does not require three stamps, and there is no objection to the ad valorem stamp. There will, therefore, be no rule. Rule refused. (a) On the 7th May, before Pollock, C. B., Alderson, B., and Platt, B. Exchequer Reports. TRINITY VACATION, 13 VICT. NESS V. BERTRAM and Another. 1849. July 6. in scire facias stated, that, by the Court, the of certain per- business of SCIRE FACIAS. The declaration stated, that whereas A declaration J. Ness, lately &c., in our Court &c., by the judgment of the same Court recovered against G. Burdis, one of the public officers for the time being of certain persons united in copartnership by the name and description of "The North of England Joint-stock Banking Company," for the purpose of carrying on the trade and business of bankers in England, under and by virtue and according to the form and effect of a certain Act of Parliament made and passed &c. (7 Geo. 4, c. 46), for the better regulating copartnerships of certain bankers in England, and which said G. Burdis then was one of the members residing in England of the said copartnership, and had been duly nominated and appointed, and before and at the time of the commencement of that suit had been, and at the time of the giving of the said judgment still was, one of the public of ficers of the said Company, pursuant and according to the force, form, and effect of the said Act of Parliament, as well a certain debt of 3000l., which in our same Court were awarded to the said J. Ness, as also 231. 16s. 6d., which in our same Court were awarded to the said J. Ness for his to the 7 Geo. 4, c. 46, a debt of 30007., whereof B., as such pub lic officer, was convicted, as by inspecting the rolls of our Exchequer ap that S. was a member of the copartnership, and that the pears. Plea, defendants were the executors of S., and as such entitled to the share of S., and members of the copartnership by reason of their share and interest as executors and not otherwise, and that they had fully administered the goods of S.:-Held, on special demurrer, first, that the plea was bad, as amounting to an argumentative denial that the defendants were members. Secondly, that, on general demurrer, the declaration was good, although it did not allege that the copartnership were actually carrying on the business of bankers. 1849. NESS v. BERTRAM. damages which he had sustained, as well on occasion of the detaining the said debt as for his costs and charges by him about his suit in that behalf expended, whereof the said G. Burdis, as such public officer as aforesaid, is convicted, as, by inspecting the rolls of our said Exchequer, appears to us.-The declaration then proceeded to state, in the usual form, that execution still remained to be made, and that the defendants were members of the copartnership, &c. Plea, that, before the recovery of the judgment, one John Scott was possessed of a certain share or interest in the funds of the said copartnership, and was a member of the copartnership; that J. Scott, on &c., made his will, and thereby appointed the defendants executors thereof; that J. Scott afterwards died without having revoked his said will; and that, by the ways and means, and by the manner aforesaid, and not otherwise, the defendants became executors of the will of J. Scott, and entitled to the said share and interest of the said J. Scott, and members of the said copartnership by reason of their share or interest as such executors, and not otherwise; and that they have fully administered all the goods, chattels, and effects of the said J. Scott. -Verification. Special demurrer, assigning for cause, (amongst others,) that the plea amounted to an argumentative denial that the defendants were members of the copartnership. Watson argued in support of the demurrer, (January 26 and 29).—First, the plea is bad. If the meaning of it be that the defendants have no interest in the Company, except as executors of a shareholder, and that they have not in any way interfered, then the plea amounts to an argumentative denial that they are members (a). If the plea means that they are members, but as executors only and (a) See Ness v. Armstrong, ante, p. 21. have administered the effects, then the plea affords no answer; for if members, they are personally liable. Secondly, the declaration is good. The objection is, that it does not state that the copartnership actually carried on the business of bankers, but merely that they were united for the purpose of carrying it on. The same form was used in Ness v. Fenwick (a). The allegation, however, is sufficient on general demurrer. By the 9th section of the 7 Geo. 4, c. 46, a copartnership of this description can only be sued in the name of their public officer when carrying on business under the provisions of that Act, and this declaration states the recovery of a judgment against the public officer, which is equivalent to a statement of the proceedings at length: Gold v. Strode (b), Preston v.Perton (c). It then concludes with a reference to the rolls of the court. That averment is material, and cannot be rejected. The rule is, that where the record is the substance of the plea, there it must conclude " prout patet per recordum;" but where it is but inducement it need not: Waytes v. Briggs (d), Co. Litt. 303. a., Stoddart v. Palmer (e). Upon a plea of nul tiel record the plaintiff would be bound to shew a judgment against G. Burdis as such public officer. In Davidson v. Bower (f) the allegation "for the purpose of carrying on the business of bankers," was held good after verdict. In Fletcher v. Pogson (g), which was scire facias by the assignees of a bankrupt, the declaration stated that the plaintiffs were chosen assignees, and they were afterwards described "as assignees as aforesaid," and on general demurrer that was held good without an express averment that an assignment was made to them; for the expression "assignees as aforesaid" might mean "persons to whom an assignment had been made." 1849. NESS v. BERTRAM. |