1849. FREEMAN V. STEGGALL. Volume XIV. would have been called to it at the trial. And, supposing the admission to have been in the common form, I think the present objection was waived. The object of an admission under the rule of Court is to dispense with the attesting witness. The party called upon to admit sees the document, and does so for the purpose of ascertaining whether there is any ground of objection to it. If he perceives an interlineation, either he objects then, or it must be taken that he dishonestly declines to do so: for, in the absence of objection, his opponent will not bring the attesting witness. Therefore, if the objection be not made, it must be taken as waived. WIGHTMAN J. I am of the same opinion. A party making an admission under the Rule of Court must be taken to admit that the document which he sees was "written, signed" and "executed" as it purports to be. If this were not so, the inconvenience would arise which has been pointed out by my brother Coleridge. ERLE J. concurred. Rule refused. Queen's Bench. 1849. SAYLES against BLANE. the ASSUMPSIT. The only count material to point decided was for Money paid. Plea: Non assumpsit. Issue thereon. On the trial, before Patteson J., at the last York assizes, the plaintiff was nonsuited, leave being reserved to move to enter a verdict for the plaintiff. Martin now moved accordingly (a). Tuesday, S. sold railway shares, of which B., after inter mediate sales and without any privity with B., became pur chaser; and S. transferred gistered owner, and so re The facts of the case, and the nature and grounds of mained, B. not the application, appear fully from the judgment. having registered. After Cur. adv. vult. the purchase by B., a call was made upon S., which S. was COLERIDGE J., in the same term (November 21st), obliged to pay, delivered the judgment of the Court. The special count in this case not having been proved, the question is, whether the plaintiff was entitled to recover upon the count for money paid. The plaintiff was registered owner of certain railway shares. The defendant, through his broker, purchased a number of shares in the same Company on the 5th of January. The plaintiff, the day after, viz. on the 6th, through his broker, sold his shares; but the respective brokers were not brought together by the evidence ; and indeed it is apparent by the dates that the de (a) Before Patteson, Coleridge and Wightman Js. Besides the authorities mentioned in the judgment, the following were referred to on the motion: Spencer v. Parry, 3 A. & E. 331.; Brittain v. Lloyd, 14 M. & W. 762.; Bailey v. Macaulay, 13 Q. B. 815.; Burnett v. Lynch, 5 B. & C. 589, 603; Bayley v. Wilkins, 7 Com. B. 886. under stat. 8 & 9 Vict. c. 16. s. 15. Held, that for such payment S. could not maintain an action against B. as for money paid to his use. Volume XIV. 1849. SAYLES V. BLANE. fendant did not purchase of the plaintiff, and that third persons intervened between them. The plaintiff, however, being the registered owner, was called upon to transfer to the defendant, and did so, by a deed regularly executed. It was then the duty of the defendant to have procured that deed to be registered, which appears, as well by the custom and usual course of dealing, as by the decision of Vice-Chancellor Knight Bruce in Smith v. Price (a), cited by Mr. Martin. The defendant did not procure the transfer to be registered, and sold the shares to some other party; and the plaintiff still remained the registered owner. Afterwards calls were made; and the plaintiff was called upon to pay, and did pay them, after giving notice to the defendant and requiring him to pay. The statute 8 & 9 Vict. c. 16. s. 15. provides that, until the transfer deed is registered, the transferor shall be liable for calls, and shall receive all profits, and that the transferee shall not be entitled to any profits, or to vote in the affairs of the company. Now the count for money paid proceeds on one of two suppositions: either that the plaintiff has paid the money for the defendant at his request; or that he has been compelled to pay money for which the defendant was liable to the person receiving it, as in the case of a surety paying the debt of his principal, and similar cases. Here there is no ground for saying that the defendant directly or indirectly requested the plaintiff to pay the money. Neither is there any ground for saying that the defendant was liable to any one for the (a) The case referred to appears to be Wynne v. Price, 3 De G. & Sm. 310. 1849. SAYLES BLANE. money paid by the plaintiff, so as to create the relation Queen's Bench. of principal and surety, or any other relation of a like kind. The statute plainly continues the liability of the plaintiff, and gives him the interest in and profits of the concern, until the transfer is registered, treating the defendant as an entire stranger to the company; and the payment of the calls by the plaintiff did not in any way alter his, the defendant's, position. At most, there was a failure in the performance of a duty on the part of the defendant, in not getting the transfer deed registered, which the plaintiff might have called upon him to perform, although he does not appear to have have done so. We think, therefore, that the principle on which the case of Humble v. Langston (a) was decided applies to this case; and that it is impossible to treat this as a case of money paid to the use of the defendant. Rule refused. (a) 7 M. & W. 517. The QUEEN against The INHABITANTS of ALL Wednesday, SAINTS, DERBY. November 14th, born in Eng land, of an Irish father and an Irish mother became ON appeal against an order of justices for removing The children, Joseph Doland and Sarah Doland from the parish of All Saints in the borough of Derby to the township of Sheffield in the county of York, the sessions quashed the order, subject to the opinion of this Court on a case, the material parts of which are as follows. chargeable, while under the age of sixteen, after the father had deserted them and the mother had died. Held, that they were removeable to the parish of their birth, notwithstanding stat. 8 & 9 Vict. c. 117. s. 2.; that enactment not making English born children removeable directly, but only as part of the family of a parent who is removed. Volume XIV. 1849. The QUEEN V. The Inhabit ants of ALL SAINTS, DERBY. Margaret Doland, in her examination before the removing justices, which the case set forth, deposed: "I am about sixteen and a half years of age, and am the daughter of Dennis and Sarah Doland, both Irish people. About five months ago my said father went away from Derby, leaving myself and my brother Joseph Doland, aged eight years, and my sister, Sarah Doland, aged six years, in a house which my father had then for some time past been occupying in the Shakspeare Yard, Bold Lane, Derby. In consequence of our father having thus deserted us, I and my said brother and sister were taken into the Derby Union workhouse, where we have been maintained from that time until the present. I remember the respective births of my said brother and sister: they were both born in a house in Shammel's Croft in the town of Sheffield, where our parents lived for about five years, namely about three years before and two years after my said sister's birth. It is about four years since my parents came to Derby. For the first two months we resided in Walker Lane, and then about a year and a half in St. Helen's Walk, when my father removed to the house mentioned, in the Shakspeare Yard, my mother having died whilst we resided in St. Helen's Walk. I lived with my parents until my mother's death, from the time of my earliest recollection, and with my father until he deserted us." By another deposition it appeared that the house in Shakspeare Yard was in the parish of All Saints, and within the Derby Union. The first ground of appeal related to supposed defects in the heading and jurat of the examinations, and is not material. |