Volume IX. 1846. GATTY V. FIELD. count with those in the second; and a similar form was sanctioned by the Court in Mee v. Tomlinson (a). But the plea there differed in some degree from this, averring that the sums mentioned in the respective counts were "one and the same debt." [Wightman J. No other construction can be put upon the words here," the sum of money and causes of action in the first count alleged."] Mee v. Tomlinson (a) has, on one point at least, been over-ruled (b). The objection of duplicity here is supported by Rawlinson v. Shand (c), and is suggested and enforced in a note, by the reporters, to Foot v. Baker (d). The illegality might have been pleaded to the first count, and Nunquam indebitatus to the second. Eicke v. Nokes (e) shews that this course would have been effectual, as to the account stated. If it had appeared in evidence that there was but a single cause of action, the Court would have taken notice that the supposed accounting could have had reference only to the matters in the first count, and therefore that, on the account stated, no claim could arise. Early v. Bowman (g) (on the effect of payment into Court on the account stated) is an analogous case. It was, indeed, said, in Arthur v. Dartch (h), with reference to proceedings at nisi prius, that "primâ facie, where there is proof of an account stated, the plaintiff is entitled to recover; and if any items of the account are impeachable," "it is for the defendant to shew that." But this dictum, if it bears on the present question, is not reconcileable with the rule apparently laid down by other cases. 1846. GATTY V FIELD. Further, it is a fatal defect, on special demurrer, Queen's Bench. that the treasurer, the secretary and the judge of the race are not described by their Christian names, but only as Mr. Richards, Mr. Selway and Mr. Clark; nor is the want of Christian names excused by any averment. Applemans v. Blanche (a) and Esdaile v. Maclean (b) are in point. [Lord Denman C. J. In Appelmans v. Blanche (a) there was a blank before the name: if there is anything that you can make a sound of, the case may be different.] The averment, in excuse for not naming the two disinterested persons, that their 66 names are to the defendants unknown," does not expressly shew that both names are unknown to both defendants. Hugh Hill contrà. As to the illegality, Allport v. Nutt (c) is decisive. As to the 15s. deposit: the plea is pleaded as to a claim of the whole 241. stake; and correctly, on that supposition. If the plaintiff meant to allege that he proceeded only for his deposit, he ought to have shewn that he claimed that only, and that he had demanded it back before any payment over, as was proved to have been done in Hastelow v. Jackson (d) and Hodson v. Terrill (e). According to his view of the case, he should have new assigned. By demurring, he admits that he is proceeding for the whole stake. The objection of uncertainty or duplicity, founded on the commencement of the plea, might have been taken, if valid, in Allport v. Nutt (c), but was not. (b) 15 M. & W. 277. (d) 8 B. & C. 221. (a) 14 M. & W. 154. (c) 1 Com. B. 974. (e) 1 Cro. & M. 797.; S. C. 3 Tyrwh. 929. Volume IX. 1846. GATTY V. FIELD. Rawlinson v. Shand (a) decides nothing applicable to the present plea. In Eicke v. Nokes (b) the action must have been brought before the New Rules, which require that the nondelivery of an attorney's bill should be specially pleaded (c): in a case governed by those Rules no inference can be drawn from it. As to the names; it is sufficient to answer that the word "Mr." might possibly be a Christian name: the Court will not judicially affirm the contrary. In Scott v. Soans (d) the Court would not intend that "Jonathan otherwise John" was not all one Christian name. And in Walker v. Parkins (e), where a writ of summons "at the suit of Henry Walker & Co." was indorsed "the plaintiff claims,' Coleridge J., in the Bail Court, held that Walker & Co. did not necessarily mean several persons, and might even be the name of one; and he rescinded an order for setting the writ of summons aside. Pearson, in reply. If the deposit was a debt, there was no need of any other demand than the bringing of the action. [Lord Denman C. J. If you do not demand back the deposit, you permit the stakeholder to dispose of it. Both parties were engaged in an illegal transaction; and the plaintiff should have done some act to put an end to it.] No pleading in the nature of a new assignment was necessary. The plea itself shews 15s., which he is en that the plaintiff had deposited (a) 5 M. & W. 468. (c) Lane v. Glenny, 7 A. & E. 89. (b) 1 M. & Rob. 359. (d) 3 East, 111. 1846. GATTY V. FIELD. a word, are a Christian name. [Lord Denman C. J. Queen's Bench, Is there any authority for saying, generally, that, when third persons are named in pleading, it is necessary to ascertain their Christian names?] The name "W. Watson" in Esdaile v. Maclean (a) was that of a third person. Stat. 3 & 4 W. 4. c. 42. s. 12. enacts that, "in all actions upon bills of exchange or promissory notes, or other written instruments, any of the parties to which are designated by the initial letter or letters or some contraction of the Christian or first name or names, it shall be sufficient in every affidavit to hold to bail, and in the process or declaration to designate such persons by the same initial letter or letters or contraction" &c., "instead of stating the Christian or first name or names in full." Even in that specified case, it must appear that the name, whosesoever it be, is designated by a contraction or initial on the instrument itself. [Lord Denman C. J. The cases which have been mentioned seem to shew that it is not enough to do what the act points out.] The liberty there given is conditional. If the condition be not pursued, the general rule must apply, that "Regularly by the common law every natural man, having no name of dignity, ought to be named in all originals, and other suits by his Christian name and surname;" 2 Inst. 665. Tomlin v. Preston (b) and - v. Snow (c) likewise shew the degree of strictness required in stating first names. Lord DENMAN C. J. It would appear that the statute, in order to remove possible objections, has created (a) 15 M. & W. 277. (b) 1 Chitt. Rep. 397. (c) 1 Chitt. Rep. 398. note (a). The objection there was, that the defendant was named in process as " Mr. Snow." Volume IX. 1846. GATTY v. FIELD. a necessity for a great deal of averment otherwise superfluous. If the argument is correct, the enactment seems rather to aggravate inconvenience. I am not satisfied that there is authority for saying that to describe parties by the name under which they have chosen to describe themselves is not sufficient as between them. But we will refer to the Court of Exchequer on this point. On the general question of illegality, we are bound by the decision in Allport v. Nutt (a). PATTESON, WILLIAMS and WIGHTMAN JS. con curred. On the point as to names, LEVY V. WEBB, GATTY V. FIELD. Cur, adv. vult. Lord DENMAN C. J. now delivered the judgment of the Court in Levy v. Webb (b) and the above case. The question reserved for consideration in the first of these cases turned upon the insertion of initials only, instead of the full Christian names; in the second, on the omission of Christian names and substitution of "Mr." And 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 special demurrer. We must presume that every person has a Christian name; and it ought to be stated, or reason assigned for the omission. The plaintiff therefore is entitled to judgment: but we think the defendants should have leave to amend. Leave to amend granted. (a) 1 Com. B. 974. (b) Antè, p. 427. |