1849. STURGE ข. RAHN. Knott(a). In Gatty v. Field (b), it was held, that the omission of the christian names in the statement of a transaction between the parties upon which the action turns, not being the description of a written instrument, is a fatal objection if specifically pointed out by demurrer. That case is therefore precisely in the defendant's favour. Here no christian names are given, but the name of the firm only. Bovill, contrà.-The objection raised to the declaration, on the ground of the omission to state the christian names of the agents, fails; for the declaration states that they are so described in a written instrument. [Parke, B.-They are also stated independently of the written instrument; so far as the description has reference to the instrument, it may be sufficient.] The special demurrer is not specifically directed against that allegation. The plaintiff, therefore, is at liberty to treat the demurrer as pointed at either of the allegations, viz. the one which states the names of the agents to be so described in the instrument, or that which sets forth the name of the firm independently of the written instrument. The first of these is correct, and the plaintiffs may treat the demurrer as directed to that allegation. [Parke, B.-In the case of Gatty v. Field, Lord Denman, C. J., in delivering the judgment of the Court, said, with respect to the objection to the omission of the christian names, "We are of opinion that, when such omission or substitution is made, not in the description of some written instrument, but in the statement of a transaction between the parties on which the action turns, it is good ground of demurrer." The objection here is supported by that decision. The plaintiffs are right in their description of the agents, where they have stated them to be so designated and described in the written instrument; but the plaintiffs are wrong where they omit their christian names in the description of an independent transaction. The declaration is therefore bad upon that ground, and the plaintiffs had better amend.] PER CURIAM (a).-The plaintiffs may amend in a month, otherwise there will be Judgment for the defendants. (a) Parke, B., Alderson, B., and Platt, B. 1849. STURGE ข. RAHN. THE MIDLAND GREAT WESTERN RAILWAY COMPANY OF IRELAND V. EVANS. Dec. 5. DEBT. The declaration stated, that the defendant, be- In an action by fore the commencement of the suit, to wit on &c., was and from thence hitherto hath been and still is the holder of divers, to wit, forty shares in the said Company, and then and at the time of the commencement of this suit was and still is indebted to the said Company in the sum of 300l., in respect of divers, to wit, three calls of 21. 10s. respectively, upon each of the said shares, to wit, one call of 2l. 10s. upon each of the said shares, amounting in the whole to the sum of 100%., another call of 21. 10s. upon each of the said shares, amounting in the whole to the further sum of 1007., and another call of 2l. 10s. upon each of the said shares, amounting in the whole to the further sum of 100l., whereby an action hath accrued to the said Company, by virtue of a certain Act of Parliament made and passed in the session of Parliament holden in the 8th and 9th years of the reign of her Majesty Queen Victoria, intituled (8 & 9 Vict. c. 16), and also by virtue of "The Midland Great Western Railway of Ireland Act, 1845," and of "The Midland a Railway Company against a shareholder for calls, the declar ation stated, ant, before the that the defend commencement of the suit, was and from thence been, the holder hitherto hath of divers shares, to wit, &c., and time of the commencement of then and at the the suit, was and still is in debted to the said Company in respect of divers shares, to wit, &c., in respect of three calls, whereby accrued to the said Company, an action had by virtue of the 8&9 Vict. c. 16, and also by virtue of another Act (naming it), and of the (setting out the title of another special Act):-Held good on special demurrer, for that, if the declaration were objectionable, the superfluous words might be rejected. 1849. MIDLAND GREAT WESTERN RAILWAY Co. OF IRELAND ช. EVANS. Great Western Railway of Ireland Act, (Mullingar to Athlone,) 1846," to demand and have of and from the defendant the said sum of 3001., &c. Special demurrer, assigning for causes, that the declaration was bad, as there is no allegation therein that the defendant was the holder of the shares at the time when the calls or either of them were made, and if so, that it is only argumentatively stated; and also, that it is not stated therein that the defendant had notice of the said calls, or for whom they were made on behalf, or for any purpose of the said Railway Company, or how the defendant became indebted, or how the action accrued by virtue of the said Acts of Parliament; and also, that the declaration is not in accordance with the form given by the first-mentioned Act. Joinder in demurrer. The demurrer was argued in the present sittings (Dec. 4). G. R. Clarke, in support of the demurrer.-There are two principal objections to this form of declaration. First, It states that the defendant "was and still is indebted,” instead of stating that the defendant is the holder of the shares, and is indebted to the Company. The form of declaration is given by the 26th section of the stat. 8 & 9 Vict. c. 16. The plaintiffs ought either to have followed this, or to have declared in a more special manner. If the latter course had been adopted, difficulties might have arisen in framing the declaration, and the 26th section, already referred to, was enacted to obviate such difficulties. In the next place, the declaration is open to demurrer, on the ground that it also departs from the form given, by stating that, by virtue of the general Act and the special Acts, the plaintiffs have a right of action. If the last special Act gave the right of making calls, the declaration should have so stated the fact. [Rolfe, B.-Suppose one set of calls is made under one special Act, and the other set of calls under antoher special Act, how could it be pleaded, except by stating both special Acts? Alderson, B.-The argument on the other side will be, that at the most, the words "and of another special Act" may be struck out as surplusage.] The meaning of the term, "the special Act," is defined by the 8 & 9 Vict. c. 20, s. 2. He cited the following cases: Shaw v. Holland (a), The Belfast and County Down Railway Company v. Strange (b), Moore v. The Metropolitan Sewage Manure Company (c), Leaf v. Robson (d), Williamson v. Allison (e), Fisher v. Gibbon (ƒ), and Lee v. Clarke (g). Edward James appeared to support the declaration, but was not called upon. ALDERSON, B., now said:-The Court are of opinion that the demurrer ought not to be allowed, and that judgment must be given for the plaintiffs. There were two objections, in substance the same, namely, that the plaintiffs have not followed the form given by the 8 & 9 Vict. c. 16, s. 26, and that it is not correct so to describe the effect of that and the special Acts of Parliament. The 26th section of the 8 & 9 Vict. c. 16, provides that certain requisites shall be stated in the declaration, and they are stated; but in addition there is a statement which is unnecessary, namely, that "before the commencement of the suit, and from thence hitherto, the defendant hath been and still is the holder of divers, to wit, forty shares." It would have been sufficient to have stated only that the defendant is the holder of forty shares. The declaration states something besides, the utmost effect of which is, that the declaration is subject to the objection of surplusage; and that cannot be taken advantage of, even on special demurrer. The last point is, that the declaration states, (a) 15 M. & W. 136. (6) 1 Exch. 759. (c) 3 Exch. 333. (d) 13 M. & W. 631. VOL. IV. U U (e) 2 East, 446. (f) 2 Dowl. & L. 869. EXCH. 1849. MIDLAND GREAT WESTERN RAILWAY Co. OF IRELAND V. EVANS. 1849. that by virtue of the general Act, and also of the two private Acts, an action accrued to the plaintiffs. It appears that there was an Act for incorporating the Company, and RAILWAY CO. a second Act for enlarging its powers, and under that se MIDLAND OF IRELAND V. EVANS. cond Act a power of making calls for the purposes of the enlarged powers. It seems to us, therefore, that it is correctly stated, and that the difficulty which Mr. Rochfort Clarke put to us with respect to the interpretation clause is solved by looking at the 26th section, which speaks of the special Act, meaning all the Acts under which the calls may be made. Therefore it appears to us that the declaration is correctly framed; but if not, the matter objected to is surplusage. Judgment for the plaintiffs. Dec. 7. A bond to the Crown, un der the 33 Hen. 8, c. 39, binds REGINA V. ELLIS. By writ of extent, tested the 12th of April, 1848, and directed to the Sheriff of Devonshire, after reciting that John Mudge, by his bond or writing obligatory, bearing date the 5th of December, 1835, became bound to his late Madisposing power jesty King William IV, in 20,000l., payable at a day certain, entered into the part of which sum had not been paid, the sheriff was com all lands of the obligor over which he has a at the time he bond. The giving such a bond is a voluntary act upon the part of the obligor, and he cannot by afterwards exercising the power, defeat the right of the Crown. Such bond is within the 33 Hen. 8, c. 39, though made payable to "the manded, as well by the oaths, &c., as by all other methods, to inquire what lands and tenements, and of what yearly value, the said J. Mudge had in the said sheriff's bailiwick on the 5th day of December, 1835, on which day he first became a debtor to his said late Majesty, or at any time since; and also what goods, &c., and of what sort or value; and also what debts, credits, specialties, and sums of monies the said J. Mudge, or any other person in trust for him, had in the said bailiwick; and to cause all and singular King, his heirs and successors;" and, being a record, can be looked at by the Court, although it be not set out in the pleadings. |