Volume IX. 1846. LOONIE V. OLDFIELD. of parliament: if it be legal, then the company is formed for purposes which are at present illegal. The words used are indeed those of sect. 2: but in pleading it is necessary to shew how the case is within the legis lative provision. The insulated words may not bear the meaning which the same words bear when read in connection with the rest of the act. The words, as used in sect. 2, seem to apply only to cases where it is intended to obtain the authority of parliament. That is clearly the sense contemplated in sect. 4, which prescribes the steps to be taken before obtaining the act and the same inference arises from sects. 7, 9. It has been held that a conviction is not necessarily good because it uses the words of a statute, unless it shew facts bringing the case within the intention of the legislature (a). If issue were joined on this allegation, what would the jury have to try? Next, even if the replication be not insufficient for the reasons given, it offers no substantial answer to the plea, which shews a good defence. It was not necessary to negative the proviso of sect. 2; note (2) to Thursby v. Plant (b); and Elliott v. Blake (c) and Hotham v. The East India Company (d), there cited. For the plea would be good, although it incorporated the matter in the replication. The matter in the plea brings the case within the provision of sect. 26, and therefore within the exception to the proviso in sect. 2, "except as hereinafter specially provided." The proviso therefore is inapplicable, and sect. 26 applies. (He then pro (a) See Seth Turner's case, antè, p. 80.; Fletcher v. Calthrop, 6 Q. B. 880. (b) 1 Wms. Saund. 233 a. (6th ed.) (d) 1 T. R. 638. 645. (c) 1 Lev. 88. 1846. LOONIE V. ceeded to argue in support of this view, by comparing Queen's Bench. No counsel appeared for the plaintiff. OLDFIELD. Cur. adv. vult. EADON against BRANSON. ASSUMPSIT. The second count was for money paid by plaintiff for defendant. The defendant, in different pleas, as to certain sums, parcels of the sums mentioned in the second count, pleaded pleas substantially the same as that in Loonie v. Oldfield (b); and the plaintiff replied substantially as in that case. There were other counts upon which the pleadings were similar to the above, so far as regards the point decided. The case was argued in this vacation (c). Pashley, for the defendant, after referring to the arguments in the two preceding cases, pointed out that the word "further," which, in sect. 26, introduces the prohibition of transferring, shewed that that prohibition was applicable to the companies affected by the preceding part of the section: that, in the preceding part, the words are (a) 15 M. & W. 121. 1 Volume IX. 1846. EADON V. BRANSON. "subject nevertheless to the provisions of this act, and of the deed of settlement of the company or other special authority;" and that, by sect. 3, "special authority" includes a "local and personal act of parliament, by which powers are conferred or regulations prescribed with reference to any individual company." This seems to shew that the prohibition includes railway companies requiring acts of parliament. It is true that a railway company may possibly be so formed as not to require complete registration; since, if the standing orders are complied with, an act of parliament may be obtained giving all necessary powers. [Patteson J. From sect. 25, it appears that the legislature supposed there might be a complete registration of a railway company requiring an act.] Sects. 9, 10 and 11 appear also to be framed on the assumption that this will take place. If sect. 26 do not apply to railway companies, neither will sects. 17, 19; yet the policy in pursuance of which these sections are inserted seems mainly applicable to railway companies. In Young v. Smith (a) the Court of Exchequer treated the provision of sect. 26 as penal. It is so in form; but in effect it is remedial. The statutes against gambling, and others, though they impose penalties, are still remedial; Bones v. Booth (b), Hyde v. Cogan (c), Holloway v. Hewett (d), Earl Spencer v. Swannell (e). It will be objected that the plea ought to negative the proviso: but that this is unnecessary appears from Spieres v. Parker (g), Shaw v. Poynter (h), Doe dem. Payne v. The Bristol and Exeter Railway Com (a) 15 M. & W. 121. (c) 2 Doug. 699. 705. (b) 2 W. Bl. 1226. (d) Cited in Lord Selsea v. Powell, 6 Taunt. 298. S. C. 2 Selw. N. P. 1317. 11th ed. (e) 3 M. & W. 154. (h) 2 A. & E. 312. (g) 1 T. R. 141. pany (a) (recognized in Taylor v. Clemson (b)), and Thi- Queen's Bench. bault v. Gibson (c). Martin, contrà. The legislature clearly had in contemplation two distinct classes of joint stock companies, shares in which might be legally transferred; namely, companies under a specific act, and companies fulfilling the particular requisites of stat. 7 & 8 Vict. c. 110. Railway companies which were to have specific acts were not the object of the prohibition. If, in sect. 2, there be any distinction between the phrases "expressly applied" and "specially provided," the latter is that which requires the more precise provision. But there is nothing like a special provision prohibiting the transfer of shares in railway companies which are to have an act of parliament. Sect. 26 merely follows sect. 25, as sect. 25 follows sect. 24, so as to include the cases of provisional and complete registration. (He then went into a comparison of the clauses, like that in the argument for the plaintiff in Lawton v. Hickman (d).) Further, even if the prohibition in sect. 26 apply here, it does not necessarily follow that the action will not lie. The contract of sale indeed could not be enforced: but, if the contract be simply void, and not illegal, the purchase money might be recovered after the sale was executed. Pashley, in reply, as to the last point, referred to Bartlett v. Vinor (e), Cope v. Rowlands (g), and Ewing v. Osbaldiston (h). (a) 6 M. & W. 320. 340. (c) 12 M. & W. 88. (e) Carth. 251. (h2 Myl. & Cr. 53. Cur. adv. vult. (b) 11 Cl. & F. 610. 648. 1846. EADON V. BRANSON. Volume IX. 1846. O'NEIL V. BRINDLE. O'NEIL the younger, and NosWORTHY, against BRINDLE. ASSUMPSIT for work, labour and commission. Plea, as to 127. 10s., parcel of the sum in the first count mentioned: actionem non, because the promise in the first count, so far as it relates to the said sum of 127. 10s., was made in consideration of the said work &c., that is to say, work of plaintiffs before then done as the agents of defendant, to wit on &c., in and about the purchasing of divers, to wit one hundred, shares, commonly called scrip shares, then about to be issued, in a certain partnership and joint stock company for making a certain railway to be called The Sheffield and Lincoln Railway, the formation of which partnership and joint stock company commenced after 1st November 1844, mentioned in the statute hereinafter mentioned, to wit on 1st January 1845, and for no other consideration whatsoever. That the capital of the said partnership and joint stock company, at the time when the same work was so done by plaintiffs as aforesaid, was proposed and agreed to be divided, and was to be divided, into shares, and so as to be transferable without the express consent of all the copartners in and of the said copartnership and joint stock company; and that the said copartnership and company then was and is a copartnership and company required to be registered, according to the provisions in that behalf contained in the statute made &c. (7 & 8 Vict. c. 110.), in the office in the said act provided for the registration of joint stock companies: and that the said purchase of the said one hundred shares by plaintiffs for defendant was made and effected, and the said work of the plaintiffs in and about the said purchase |