1846. SMITH v. BALL. under the said name, style, and firm of James Gale and Queen's Bench. Son;" and this was beld sufficient. The two cases together shew the correct rule: either the proper names must be given in full, or the parties must be described as using a particular style; here the indorsement is said to be by "the said James Chandler and Son," not by persons using that style. It is true that, in the case last mentioned, Parke B. avoids acquiescing in Ball v. Gordon (a). Dowdeswell, contra. Ball v. Gordon (a) is not an express decision; and the authority of the case is at least counterbalanced by Tigar v. Gordon (b). The persons named in a mercantile instrument, not being parties to the suit, are best described as they are named in the instrument: their proper names can often not be ascertained. In Knill v. Stockdale (c) the declaration stated that parties named made a bill of exchange, and thereby required defendant to pay to "the drawers"" order; and the Court set aside, as frivolous, a special demurrer on the ground that the name of the drawers should have been given in describing the requisition of the bill. The Court here cannot but see that the parties named as indorsers are those described as the drawers, and will act upon that view, as the Court of Exchequer did in Spyer v. Thelwell (d), where "his order," though the last antecedent was the drawee, was referred to the drawer. The general principle, in decisions on the pleadings on bills of exchange, has been to look to the substance of the transaction. The (a) 9 M. & W. 345. (b) 9 M. & W. 347. (c) 6 M. & W. 478. (d) 2 C. M. & R. 692.; S. C. Tyrwh. & G. 191. Volume IX. 1846. SMITH V. BALL bill may have been indorsed for "John Chandler and Son" by an agent, consistently with this declaration; and he might have described himself as acting "for James Chandler and Son;" Heys v. Heseltine (a). A single person, using a style denoting a firm of several persons, may be described as "certain persons trading under the name," &c.; Bass v. Clive (b). But, if the technical rule be so strict as is contended for on the other side, then the plaintiff is entitled to insist that it does not appear but that James Chandler and Son is a proper name; Walker v. Parkins (c). Jos. Brown, in reply. Undoubtedly the declaration is good in substance; but the question raised by the special demurrer is whether it be good in form. [Lord Denman C. J. Suppose an indorsement were produced, with the names James Chandler and James Chandler Junior would that support the present allegation of indorsement?] It would. [Lord Denman C. J. Yet that would not identify the indorsers with the drawers, who are persons using the style of James Chandler and Son.] That seems to convert the objection into one of substance. The indorsers must be identified with the drawers; and the identity should appear on the bill itself; Kirk v. Blurton (d), Carvick v. Vickery (e). Lord DENMAN C. J. I think this declaration is well enough. There must be judgment for the plaintiff. (a) 2 Campb. 604. (b) 4 M. & S. 13. ; S. C. at N. P. 4 Campb. 78. (c) 2 Dowl. & L. 982. (d) 9 M. & W. 284. (e) Note [134] to Whitcomb v. Whiting, 2 Doug. 659, 654, PATTESON J. (a) I think Tigar v. Gordon (b) over- Queen's Bench. 1846. rules Ball v. Gordon (c). Judgment for plaintiff' (d). SMITH V. BALL.. (a) Only two Judges were present. (b) 9 M. & W, 347. (c) 9 M. & W. 345. (d) See Levy v. Webb and Gatty v. Field, post, pp. 427. 491. PAULL, and ANN his Wife, Executrix of HAR- Friday, COVENANT, by executrix of reversioner (her husband joining), for non-payment of rent reserved by an indenture of lease. The declaration stated a demise to one Weklin for thirteen years; covenant by Weklin to pay rent; entry and possession by Weklin; and that, after the making of the indenture, and during the term, all the estate &c., then to come and unexpired, of Weklin, of and in the demised premises with the appurtenances, "by assignment thereof then made, legally came to and vested in the defendant." Breach, that, after the making of the indenture, "and after the defendant became such assignee as aforesaid, and while he continued to be such assignee," and during the term &c., rent for one year became due &c. Plea: That, the estate &c. of Weklin of and in the demised premises with the appurtenances, "by assignment thereof made, did not come to or vest in the defendant, in manner and form " &c.: conclusion to the country. Issue thereon. June 26th. So held, where the widow of an in testate pos sessed herself of a lease, part of his estate, with out taking out administration, and handed it to another party, who kept it, and occupied the premises for the residue of the term with the landlord's assent. Volume IX. 1846. PAULL V. SIMPSON. On the trial, before Wightman J., at the sittings in Middlesex during Trinity term, 1845, it appeared that, while the lease was still subsisting, Weklin died intestate, and his widow kept possession of the premises, and paid rent, but no administration was taken out. A few months afterwards the defendant took possession of the premises, and stated to the agent employed to collect the rents that he was from thenceforth to be the tenant under the lease, which he at the same time produced. He continued in possession till the end of the term, and paid the reserved rent for two years, but omitted to pay it for the last half year, which was the default now complained of. It appeared that there had been some arrangement between the defendant and Mrs. Weklin: but the precise nature of it was not shewn; nor was there any express proof of a written assignment. No witness was called for the defendant. Wightman J., in summing up, told the jury that they might, if they saw ground for it, infer an assignment from the evidence; and, at the instance of the defendant's counsel, who contended that the assignment, if any, must have been written (a), he left it to the jury to say whether the evidence raised a presumption in their minds that Weklin's remaining interest in the term had been assigned to the defendant in writing. The learned Judge stated that, on the case as it stood, he himself should be disposed to say that the defendant was assignee; if not, he did not know under what circumstances the possession had been taken. The jury found a verdict for the defendant. (a) Stat. 29 Car, 2. c. 3. s. 3. 1846. Sir John Bayley, in the same term, moved for a new Queen's Bench. trial on the grounds of misdirection and that the verdict was against the evidence. On the first point, he contended (as had also been done at the trial) that the defendant might have been assignee by operation of law (a); that he was so if he took the lease from an executrix de son tort, for then he himself stood in the situation of an executor de son tort; and that the possibility of such an assignment was not submitted to the jury. He cited 2 Wms. Executors, 1491 (b), Lyddall v. Dunlapp (c), Garth v. Taylor (d), and 3 Bac. Abr. 448 (7th ed.) tit. Executors and Administrators (B), 3. A rule nisi was granted. Lush now shewed cause. First, the words of the declaration "by assignment thereof then made" point to an assignment in fact, and not by operation of law; and the circumstances here proved were no evidence of an assignment in fact; Botting v. Martin (e), Hyde v. Moakes (g). [Patteson J. There is a case in 4 Term Reports (h) where an averment that the reversion, on a lease, came to the defendant by assignment was held sufficient, though it appeared that the estate had descended to him as heir at law.] The words "then made," in this case, tie the allegation down more closely. [Wightman J. It is usual to state an assignment in law to a defendant in the words "by assignment then and there made: and the books of pleading say that the words include (a) Stat. 29 Car. 2. c. 3. s. 3. (b) 4th ed. Part 4. B. 2. c. 1. §2. The 3d edition was cited. See ib. vol. i. p. 211 (4th ed.). Part 1. B. 3. c. 5. (c) 1 Wils. 4. (e) 1 Camp. 317, 318. (h) Derisley v. Custance, 4 T. R. 75. (d) Freem. C. B. 261. (g) 5 Car. & P. 42. PAULL v. SIMPSON. |