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1849.

LEEDS AND THIRSK RAILWAY Co.

V.

FEARNLEY.

Cowling argued in support of the demurrer, in the sittings after last Hilary Term (February 20).—This declaration is in the general form given by the 26th section of the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 16, and the defendant, who appears by attorney, does not deny that he was the holder of shares, but merely alleges, that at the time of making the calls, and of his becoming a shareholder, he was an infant. This case is distinguishable from that of The Newry and Enniskillen Railway Company v. Coombe (a), inasmuch as here it is not alleged that the defendant became a shareholder by reason of his having subscribed for the shares, and that he afterwards repudiated the contract; so that, for aught that appears, he may have become a shareholder by act of law. It is clear from the 79th section, that an infant may be a shareholder; and, so long as he holds the shares, he will be liable for the calls, unless there is something in the Act to exonerate him. The maxim "Transit terra cum onere" applies. The plaintiffs are under an obligation to complete the railway, and might be compelled to do so by mandamus. In Bac. Abr. tit. "Infancy," (F)., instances are collected "of what things an infant is capable, being for his own advantage;" from which it is clear, that where he has the enjoyment of property he must sustain the burthen attending it. Evelyn v. Chichester (b) is an authority to the same effect. would seem, from the case of Rex v. Sutton (c), that an infant inheriting land charged with repair of a bridge, would be liable to indictment for non-repair. The language of the 22nd section of the 8 & 9 Vict. c. 16 is very comprehensive, and renders every shareholder liable for calls. If an infant were exempt, his shares could never be forfeited. under the 29th section, for in no sense could he be said "to fail to pay any call payable by him." He would also (a) 3 Exch. 565.

(b) 3 Burr. 1717.

(c) 3 A. & E. 597.

It

be exonerated from the execution to which shareholders are liable under the 36th section. By sect. 18, the Company are obliged to register any infant to whom shares have come by act of law; and can it be said that in such case he would not be liable for calls? The 79th section expressly provides for the case of an infant voting. Suppose an infant married a female shareholder, would not the shares vest in him? If not, no effect could be given to the 14th section, which enables shareholders to transfer their shares. In Corpe v. Overton (a), the authorities are collected, and, according to the note of Wilmot, J., there cited, Lord Mansfield, in his judgment in The Earl of Buckinghamshire v. Drury (b), said, “If an infant pays money with his own hand, without a valuable consideration, he cannot get it back again." [Parke, B. -In Manby v. Scott (c), Hyde, J., says, "If an infant give or sell goods, and deliver them with his own hand, he shall have no action of trespass against the donee or vendee by reason of the delivery; but if an infant give or sell goods, and the vendee or donee take them by force of the gift or sale, the infant may have an action of trespass against him."] The present case is not distinguishable from that of The Cork and Bandon Railway Company v. Cazenove (d).

Prentice, contrà.-This case no doubt differs from The Newry and Enniskillen Railway Company v. Coombe (e), inasmuch as there the plea stated that the defendant became a shareholder by contracting and subscribing for the shares, and that he afterwards repudiated the contract. This plea, however, is more correct in form. In the case of an action for goods sold and delivered, the plea merely states that the defendant was an infant at the time of the con

(a) 10 Bing. 252.

(c) 1 Mod. 137.

(6) Wilmot's Notes of Opinions and Judgments, 177.

(d) 11 Jur. 802.

(e) 3 Exch. 565.

1849.

LEEDS

AND THIRSK RAILWAY Co.

V.

FEARNLEY.

1849.

LEEDS AND THIRSK RAILWAY CO.

v.

FEARNLEY.

tract, and it is matter for replication that he affirmed it after he became of age: Cohen v. Armstrong (a). The form of plea is similar in an action on a bond or deed (b). In Williams v. Moor (c), the only doubt was whether the fact of ratification should be replied or new assigned. [Parke, B. This is not the ordinary case of a contract by an infant, but a purchase of shares, by which he acquired a property in the possible profits of the concern. Now, according to Ketsey's case (d), and what is more distinctly laid down by Dodderidge, J., in Kirton v. Eliott (e), he would be liable, unless he repudiated; then ought not the plea to aver that fact?] Primâ facie infancy is a bar to any claim or contract. A call is nothing more than a statutory contract between the Company and the shareholders; and, even admitting that an infant may purchase shares, still he is not liable on a contract arising out of the possession of them. If an infant purchased a lease, would he be liable on the covenants contained in it? [Parke, B.-According to Ketsey's case (d), he ought to disavow before the rent is due; if not, he must pay what the law considers a compensation for the previous holding.] The plea in effect amounts to a repudiation. Evelyn v. Chichester (ƒ) was the case of a copyhold fine. Rex v. Sutton (g) proceeded on the principle, that an infant is liable to the criminal law like any other individual.

Cowling, in reply.--The general rule, that a plaintiff must reply matter rebutting the effect of a plea of infancy, is not applicable to this case; for the action is not on a contract, but depends upon the provisions of an Act of Parliament. The Company has no power to reject an infant share

(a) 1 M. & S. 724.

(b) 3 Chit. Plead. 177, 7th edit.

(c) 11 M. & W. 256.
(d) Cro. Jac. 320.

(e) 2 Bulst. 69.

(f) 3 Burr. 1717.

(g) 3 A. & E. 597.

holder, which shews that this is not matter of contract. Ketsey's case is also reported in Brownlow (a), and there it appears that the onus is on the infant to shew that the rent is excessive. This plea should have shewn how the infant became possessed of these shares.

Cur. adv. vult.

The judgment of the Court was now delivered by

ROLFE, B.-(After stating the pleadings, his Lordship proceeded):--The pleas in this case do not contain the allegation on which this Court proceeded in distinguishing the recent case of The Newry and Enniskillen Railway Company v. Combe from that of The Cork and Bandon Railway Company v. Cazenove. There is no averment that the defendant was originally a contractor for the shares with the Company, nor that he avoided the contract, as there was in that case. The defendant may have received these shares by will, or devolution upon him by operation of law, or purchase from the original contractor, and he cannot be assumed to have repudiated them. The case of The Cork and Bandon Railway Company v. Cazenove decides, that, under these circumstances, an infant is bound; and we therefore shall act upon it. We do not indeed see how we can infer from the pleadings in this case, that the defendant was of full age at the commencement of this suit, as the Court of Queen's Bench did from the pleadings in the case before them, which are not fully reported, the adoption after full age being one of the grounds on which the Court of Queen's Bench proceeded. On the pleadings in this case we cannot make this assumption, for the appearance by attorney (the only matter in this plea from which such an inference can be drawn) is not equivalent to an averment in the plea that the defendant was of full

(a) Page 120.

1849.

LEEDS

AND THIRSK RAILWAY Co.

v.

FEARNLEY.

1849. LEEDS

RAILWAY CO.

V.

FEARNLEY.

age before the commencement of the suit, or even at the time of the plea pleaded; it is an act done in Court by the AND THIRSK defendant, anterior and collateral to the pleading, and not involved in any issue on the plea; and the defendant, if an infant, might reverse the judgment for error, whatever the result of an issue might be. But the Court of Queen's Bench did not proceed on that ground only, nor only on the ground that the statute made all infants liable (in which we cannot concur, as we have already decided in the case of The Newry and Enniskillen Railway Company v. Combe), but also on the ground stated by Lord Denman, that if there was any special circumstance that prevented the defendant from being liable, it ought to have been shewn by the defendant. The case in the Queen's Bench being in this respect exactly like the present, governs it; and there must be judgment for the plaintiffs. Judgment for the plaintiffs.

June 6.

SMITH V. DIMES.

Under the 7 & SMYTHIES had obtained a rule, calling on the plaintiff

8 Vict. c. 73,

s. 37, an attor ney's bill for agency business is taxable.

in this case to shew cause why his bill for agency business should not be referred to the Master to be taxed.

Against this rule, in Hilary Term last (January 30),

Martin and Willes shewed cause.-The question is, whether an attorney's bill for agency business is taxable. The Courts of equity appear to have considered it to be so; but, on the other hand, a different opinion seems to exist in the Courts of common law. The question turns on the construction of the 37th section of the Attornies and Solicitors Act, 6 & 7 Vict. c. 73, which enacts, "that from and after the passing of this Act, no attorney or solicitor,

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