68 Superior Courts: Queen's Bench Practice Court. Queen's Bench Practice Court. (Before Mr. Justice Wightman.) Warburg v. Read. Trinity Term, 1847. COURT OF REQUESTS. JURISDICTION. COSTS. not have any costs by reason of a verdict in his favour. It further appeared, that a county court had been established for the Isle of Wight district, under 9 & 10 Vict. c. 95, on the 22nd of March 1847. Bramwell now (7th of June) showed cause, An action was commenced in a superior court and contended, first, that the effect of the proin December, 1846, for a debt recoverable visions in the Court of Requests Act as to under the provisions of a Court of Requests costs only applied to cases were there had been Act. Notice of declaration was given on a trial, and it had been ascertained by a jury the 28th of March, 1847, on which the de- that the defendant was entitled to have his fendant paid the debt. The Court of Re-cause tried in the Court of Requests, and the quests Act provided, that where a party signed. Calvert v. Everard, 5 M. & S. 501; application should be made before judgment commenced proceedings in the superior Tidd's Pract. 996. Then, the Court of Recourts for a debt recoverable under the Court of Requests Act, he should have no Courts Act, 9 & 10 Vict. c. 95, which, by the quests Act is repealed by the New County costs. The plaintiff, however, demanded 61. 17s. costs, which not being paid, he 5th, 6th, and 7th sections, repeals all Courts of signed final judgment on the 1st of May, Request, and only keeps alive proceedings commenced in then for certain purposes. The and issued execution. No county court was established in the district until March, aside the first judgment, but only the execurule, too, is irregular, as it does not go to set tion. Now, where a party complains of an irregularity, he must go to the root of it. 1847: A motion being made to set aside the execution and enter a suggestion on the roll to deprive the plaintiff of costs. Held, that as the plaintiff had commenced his action in the superior court at a time when he would not have been entitled to any costs, he could not recover them now; for the 9 & 10 Vict. c. 95, merely repealed Courts of Requests Acts from the time of the establishment of the County Courts in the districts where the Court of Request existed. This was a rule obtained by Sewell on the 27th of May, before Coleridge, J., calling on the plaintiff to show cause why the execution herein should not be set aside, and why he should not bring in the plea roll to make the defendant to enter a suggestion thereon to deprive the plaintiff of costs, under the provisions of a Local Court of Requests Act, 46 Geo. 3, c. 66, the debt claimed being under 51. The rule was obtained on affidavits, disclosing the following circumstances:-The writ of summons in the action was issued on the 1st of December, 1846, and claimed a debt of 31. 6s. This was served on the 28th of March, 1847. On the 29th, the next day, notice was given by the defendant to the plaintiff by letter, that he resided within the jurisdiction of the Isle of Wight Court of Requests. On the 10th of April, notice of declaration was given, upon which the defendant paid the debt, which the plaintiff received, but claimed 47. 108. for costs. This the defendant refused to pay, whereupon the plaintiff on the 20th of April signed judgment, and on the 1st of May issued a fieri facias for 61 178., under which the sheriff levied on the 3rd, and sold the goods on the 13th. It also appeared, that at the time the action was commenced the defendant was resident at Newport, in the Isle of Wight, and so was within the jurisdiction of the Isle of Wight Court of Requests Act. There was also the usual provisions in that act, that where a party commenced an action in the superior courts for a debt recoverable under that act, he should Sewell, in support of his rule, was directed to confine himself to the question of the repeal of the Court of Requests Act by 9 & 10 Vict. c. 95. Sewell. First, there is nothing here to show that the Court of Requests Act is in any way repealed; for the 9 & 10 Vict. c. 95, merely gives the Crown power by an order in council to order in what districts County Courts may be held; and then this court will not take judicial notice of an order of council, and there is no evidence of one before the court; but even if there were, the Court of Requests Act is not repealed as to proceedings in it preexisting. The words of the act are by no means a positive repeal of the Courts of Requests Act. The present case is one of a proceeding commenced in the superior court at a time when the cause of action might have been commenced in the local court, and if it had, it could have been continued in the County Court under the new act. With regard to the form of the rule, we are right in seeking to set aside the execution. This was done in Burbidge v. Marvin, 12 M. & W. S. We were not damnified until the issuing of the execution, and then gave notice immediately to the sheriff. Cur. adv. vult. Wightman, J., (June 12,) gave judgment. In this case the writ was issued on the 1st of December, 1846, and served on the 28th of March, 1847, and judgment signed on the 20th of April. No local court had been constituted under the provisions of the 9 & 10 Vict. c. 95, for the district in question, till the 22nd of March, 1847. It has been said, in answer to Mr. Sewell's motion, that the 9 & 10 Vict. c. 95, in fact repealed the provisions of the Court of Requests Act. By this act (the 46 Geo. 3, c. 66, s. 40,) it was enacted, that if any action or suit for any debt recoverable by virtue of the act in the Court of Requests be commenced in any other court whatever, the plaintiff shall not, by reason of a verdict in his Queen's Bench Practice Court.-Superior Courts: Common Pleas. 69 favour, be entitled to any costs. Now there | fendant and his heirs, and the other to the use is no doubt, that when this action was com- of the defendant and his heirs, subject to that menced, namely, on the 1st of December, made to the plaintiff; and after conveying the 1846, the debt was recoverable in the Court estate, it contained the usual covenants of title of Requests; and if that is so, it appears to by the parties of the first part with both the me that the plaintiff would not be entitled to plaintiff and defendant, and their heirs, &c., coany costs on judgment by default on verdict, venants also by the defendant for the payment of or otherwise. The decision in Burbidge v. principal and interest to the plaintiff, and other Marvin applies, though the plaintiff has judg- usual mortgage covenants and provisos. The ment here by default. It is conceded, in the second count set out an indenture, dated the present case, that the debt was within the 29th of April, 1843, between the plaintiff and Court of Requests' Act, unless the 9 & 10 defendant only, which recited that the 4001. Vict., c. 95, entirely superseded that court. secured by the former deed had not been paid, It seems to me that it does not supersede the and an agreement by the plaintiff to advance 40th section of the 46 Geo. 3, c. 66, because the further sum of 100%. on the security of the that applies to the time at which the action same estate. The indenture, as set out, then was commenced, and, for all that appears, the contained a covenant by the defendant for the debt was recoverable in the Court of Requests payment of the further sum of 100l. and down to the 22nd of March, 1847. The 9 & interest, and the other usual mortgage co10 Vict., c. 95, does not contain an absolute venants and provisoes. Of both the covebut qualified repeal of the Court of Requests nants for payment of principal and inacts. It only provides, that, as soon as a terest contained in the deeds so set out, court shall have been established in a district breaches by the defendant were alleged in the under the act, all enactments affecting its declaration. The pleas were non est factum, jurisdiction shall be repealed. That being so, and a set-off. No admission under the surit seems to me that it has not the effect of renders appeared to have taken place. When repealing the 46 Geo. 3, c. 66, so far as to the deeds were produced at the trial, the first entitle the plaintiff to recover his costs in this bore a 17. 15s. stamp in addition to the proper case. The rule, therefore, must be made ab- progressive stamp, and the second deed a 30s. solute, the defendant undertaking not to bring ad valorem stamp. It was thereupon objected, an action. Rule absolute. that they were insufficiently stamped, and therefore inadmissible in evidence. The learned judge, however, thought otherwise, and received them; and in order to reduce the damages to the sum of 1031. 3s. 7d., on the ground that the first deed had been improperly admitted in evidence, or to the sum of 4127. 158., on the ground that the second ought not to Common Pleas. Rushbrooke v. Hood. Michaelmas Term, 1847. INSTRUMENT.-FURTHER CHARGE. A deed by which a copyhold estate is conveyed to a purchaser, and also a mortgage is secured to a third party as a security for the advance of the purchase money, is not an instrument containing several distinct matters, within the meaning of the 12 Anne, ses. 2, c. 9, s. 24, and therefore, not liable to more than one deed stamp of 11. 15s. have been so admitted. Rouse now moved for a rule nisi. The first deed contained two distinct and separate matters of contract, and ought, therefore, to have borne, not merely a stamp in respect of one of such matters, (as it did,) but in respect of both. The objection rests entirely on the 12 Anne, ses. 2, c. 9, s. 24, which provides, that where any one A second and subsequent deed, by which the or more of the matters or things charged with same estate is, by a covenant on the part of stamp duty shall be written upon one piece of the mortgagor, charged as a security to the parchment or paper, the duties shall be charged mortgagee for a further advance of money, upon every one of such matters. Tilsley's is only liable to the proper ad valorem duty, Stamp Laws, 357. With respect to the second being only a further mortgage charge with- deed, the point is, that it ought to have borne in the meaning of the Stamp Act. a deed stamp of 17. 15s., and not merely an ad THIS was an action of covenant; and at the valorem mortgage stamp. No admission of the trial before Patteson, J., at the last Suffolk mortgagee had taken place, and it cannot be Assizes, a verdict had been found for the plain- considered as operating only as a further morttiff for the sum of 5151. 18s. 7d. The first gage charge, but is in truth a distinct covenant count in the declaration set out an indenture, by the mortgagor of the copyhold estate, and dated the 13th of April, 1842, which recited, therefore within the principle of Haywood v. amongst other things, a contract of sale of Bibby, 11 M. & W. 812. The deed could not, certain copyhold estates to the defendant, and it is submitted, be considered as falling under an agreement for a mortgage of the said estates the definition mortgage in the Stamp Act. by the defendant to the plaintiff to secure 400l., Wilde, C. J. It seems to me that neither of which mortgage was to be carried out simultaneously with the purchase; and further, that two surrenders of the estates of even date had been passed, the one to such uses as the plaintiff should appoint, and in default, to the de the objections is well founded. It is not necessary to say that objections of this nature, which are set up with the intent to charge a party with stamp duty, require a construction wihch is well warranted by the clear plain 70 Superior Courts: Common Pleas.-Exchequer. Lord Chief Baron.-What is to be inferred from that case is, that where an instrument is not negotiable, an allegation of readiness to pay it at all times if produced, is no answer to the action. There is this distinction between negotiable and non-negotiable instruments, that in the case of the one not capable of negotiation as the demand never can be made by a third party, saying, that you are ready to pay on the production of the note, is no answer to the action. Alderson, B. The difference is, the one note is payable to the person named only; the other to any one who produces it. language of the statute. As to the first objec- | necessary in the case of a non-negotiable intion, it appears that a party having agreed to strument, and referred to Wain v. Bailey, 10 become the purchaser of a copyhold estate, A. & E. 614. procures it to be surrendered, not to him directly, but to a person appointed by him, by whom the amount of the purchase-money is advanced, to be held by the latter by way of security for such amount. The whole of the deed taken together cannot be considered as containing distinct transactions, but only one mode of working out one transaction, and there is no good ground for contending that it falls within the statute of Anne, which means that a party shall not avoid the duty imposed by the legislature by choosing to use one piece of parchment for the purpose of writing on it several distinct instruments. As to the second deed, I own I have had some little doubt. The object of it is to give to the party advancing the purchase-money a lien or charge on the copyhold estate for the futher sum of 100l., lent in addition to the 400l. before advanced to pay the price of the estate. Now, what is to be understood by a mortgage within the meaning of the Stamp Act? Some instrument, it appears to me, by which a party seeks to charge an estate for an advance of money. The present deed expresses that the estate shall be holden as a security for 100l. It recites the previous charge of 4001., and secures the 1004., in addition, on the same estate. I think, therefore, it falls within the express terms of the Stamp Act now in force, namely, a deed of further charge, and as the proper ad valorem duty has been paid, both this and the other deed were properly received in evidence at the trial. Coltman, J., Maule, J., and Williams, J., concurred. Rule refused. Court of Exchequer. Spindler and wife v. Grillett. 1847. PROMISSORY NOTE.-PRESENTMENT WHEN NECESSARY. Where a promissory note was payable to A. at 10, Duncan Street, the want of averment of presentment in the declaration held to be fatal on general demurrer. THE declaration was on a promissory note for 200l., payable to Miss Jesse Hope, at 10, Duncan Street, Edinburgh, and had no averment of presentment there. The defendant demurred generally, and the point was the want of an averment of presentment. Rolfe, B. It seems strange that, if a person promises to pay at a certain place, and is ready to pay there, he should be liable to an action without a demand there. If the note was, I promise to pay on application at 10, Duncan Street, Edinburgh, it would be clearly necessary to apply at that place; but if the custom of merchants implies that from the words " at 10, Duncan Street, Edinburgh," I cannot see how it is the less necessary to apply there. Needham then proceeded to argue that the allegation in the declaration that the female plaintiff was always ready and willing to receive the amount of the note, according to the tenor and effect thereof," amounted to an allegation of presentment, as it was impossible for her to be ready and willing to receive the amount according to the tenor and effect of the note, unless she was present at the place designated, and cited Ambrose v. Hopwood, 2 Taunt. 61; Huffam v. Ellis, 3 Taunt. 415. Addison replied. The Pollock, C. B. The declaration states that Nov. 12, the defendant promised to pay Miss Jesse Hope at 10, Duncan Street, Edinburgh, 2007. three months after date. That is the form of the note, and the question now to be decided that the note, from the form of it, was made is, what is its legal effect. It appears to me payable at 10, Duncan Street, Edinburgh. Serjeant Onslow's act does not apply to a promissory note of this description. It is said that there is a distinction between negotiable and non-negotiable instruments. There is, no doubt, a distinction between them. note not negotiable is available in the hands only of the party to whom it is made payable, and therefore the loss of it is the less important; while, in the case of the negotiable note, the right to payment is vouched by the production of the instrument. Where the contract is between the parties themselves, the place of payment is more likely to be important than where the negotiable character of the instrument might put it into the hands of other persons in other places. Mr. Needham contends that, a demand at the place must be inferred, because the declaration alleges that the plaintiff was always ready and willing to receive the amount. But that averment does Addison, in support of the demurter, submitted that the note not being negotiable, a presentment at 10, Duncan Street, was neces sary, and referred to Fleetwood v. Curley, Hob. 267; Sanderson v. Bowes, 14 East 500; R. v. Stevens, 5 East 244; Emblin v. Dartnell, 12 M. & W. 830; Pearce v. Champlin, 3 Dowl. 276. Needham, contrà, contended, that at in the note meant of, and was merely a description of the person, and not a designation of a place of payment, and that a presentment was not Analytical Digest of Cases: Law of Railways. 71 not, in my opinion, supply the want of an a sham plea, held, that that must be taken to averment of a demand at the place. In Huf- mean at the place, as otherwise it could not fam v. Ellis, there was an averment of a de- be according to the tenor and effect of the mand of the person, but not in express terms instrument. For these reasons I think that at the place; but as it was alleged to be ac- the defendant is entitled to judgment. cording to the tenor and effect of the instru- Parke, Alderson, and Rolfe, Barons, conment, the House of Lords, after judgment on | curred. ANALYTICAL DIGEST OF CASES. Law of Kailways. ALLOTMENT. 1. Receipt.-Stamp.-The acknowledgment by a banker of the receipt of money paid as deposit upon shares allotted in a joint-stock company does not require a receipt stamp. Where a plaintiff seeks to recover back the amount of deposit paid by him upon the allotment of shares in a projected joint-stock company which is afterwards abandoned, he must give in evidence the letter of allotment. Clarke v. Chaplin, 34 L. O. 567. 2. Stamp.-A party applied by letter for shares in a projected railway company, and received in reply a letter, stating that ten had been allotted to him, and that he must pay the deposit into a banker's named by a certain day, or the committee might cancel the allotment: Held, that these letters were admissible in evidence without a stamp. Vollans v. Fletcher, 34 L. O. 598. And see Deposits. ASSIGNMENT OF SHARES. Liability of assignor.-Want of interest.A. and B., on behalf of themselves and all other shareholders of a company provisionally registered, except the defendants, filed a bill against 18 of the managing committee, for an account of the expenses, and for the division thereof rateably on each share, and for a return of the residue to the shareholders, and also for payment of the deposits on shares reserved by the defendants, and that they might be decreed to make good all loss occasioned by their mismanagement, and also for an account of the assets and debts and liabilities, and for a receiver and injunction. To this bill one of the defendants pleaded in bar, that B. had assigned his share and interest to C. bill, an allegation to that effect raised by the argument, and only arising by implication from the circumstances stated, will not be held sufficient to sustain the bill. That B. having assigned his shares, cannot in the character of trustee represent his assignee C., nor the absent shareholders on behalf of whom he professes to sue. The plea in this case being too general in form, and not sufficiently detailing the particu lar transaction on which the plea was founded, the court gave leave to amend, and reserved the costs. Doyle and another v. Muntz and others, 4 Carrow & Oliv. 422. See Shareholder. BANKRUPT. Scrip shares.-Proof in respect of.-A broker, by order of a customer, purchased certain scrip shares in a projected company, provisionally registered, but the purchase money not having been paid on the settling day, the broker sold them again at a loss. The customer having become bankrupt, the broker applied to prove for the loss, but was refused by the commissioner. On application by petition to the Court of Review, the petitioner was allowed to go before the commissioner, to establish his proof. Exparte Barton, 4 Carrow & Oliv. 371, Rights of shareholders.—Fraudulent misrepresentation. Conditional allotment. - New trial.-Certain persons issued a prospectus for a railway company, stating the capital to be 3,000,000l. in 120,000 shares of 251. each; and that in case parliament should not sanction the - Held, that the plea was good in substance, undertaking, the money deposited, minus the inasmuch as a state of circumstances which expenses attending the project would be rewould prevent B., if sole plaintiff, from obtaining relief at the hearing would not, on account of A. having a present interest, sustain the bill against a demurrer. That, although the plea admits the allegations of a bill to be true, yet if the bill do not show a case under which one plaintiff would be entitled to relief, notwithstanding the assignment of his shares, and without reference to another plaintiff, the plea will be held good. That no case of liability being made by the turned. The plaintiff sent a letter of application for shares in the form given by the prospectus. To this letter he received a written answer allotting him 60 shares, but conditionally upon the deposit being paid before a certain day, in default of which, the shares would be forfeited. Prior to the day fixed for payment of the deposit, the committee published an advertisement giving notice that they had completed the allotment, and stating, by way of apology to disappointed applicants, that they P Analytical Digest of Cases: Law of Railways. 72 had been obliged to give a preference to those an injunction exparte to restrain the completion locally interested. Evidence was given that of the contract. plaintiff saw this advertisement, and that he Held, on motion to dissolve this injunction, subsequently paid his deposit. Notwithstand- that an objection for want of parties to a suit so ing that application had been made for 120,000 framed was not sustainable. That directors shares, 58,000 only were allotted. Afterwards have no right to enter into, or to pledge the the plaintiff executed the subscription deed, funds of the company in support of any project which gave power to the committee to pay the not pointed out by their act, although such proexpenses out of the deposits. The plain.iff at- ject may tend to increase the traffic upon the tended a meeting of shareholders on 15th Dec. railway, and may be assented to by the maThe deposits, except 400l., being expended, and jority of the shareholders, and the object of there being no funds for making the necessary such project may not be against public policy. parliamentary deposit, a resolution was pro- That acquiescence by shareholders in a project posed for a further allotment of shares. The for however long a period, affords no presumpplaintiff objected, and moved as an amendment tion that such project is legal. that the deposits should be returned. This amendment the chairman did not put to the meeting. The undertaking was afterwards abandoned. The plaintiff brought an action against one of the managing committee to recover the money he had paid as a deposit on the shares allotted to him. That an objection, stated by affidavit, and remaining unanswered, that the plaintiff was proceeding at the instigation and request of a rival company, did not deprive him of his right to an injunction, and the motion to dissolve the injunction was refused with costs. Colman v. Eastern Counties Railway Company, 4 Car FOREIGN RAILWAY COMPANY. Held, 1st, That there was no contract bind-row & Oliv. 513. ing on the plaintiff, the allotment being in a company having a less capital than that in which shares were applied for, and the letter of allotment also being conditional, and not a simple acceptance of the plaintiff's proposal. 2ndly, That the evidence warranted the jury in finding that there was a fraudulent misrepresentation by the advertisement; and that the misrepresentation so made was a material inducement to the plaintiff to pay his money; consequently, that the subscription deed was no answer to the action. 3rdly, That, notwithstanding the plaintiff's attendance at the meeting of the 15th Dec., he was in a condition to maintain the present action. 4thly, That the absence of any opinion by the judge at the trial, whether the notice of application and allotment did or did not constitute a binding contract, was no ground for a new trial, that being a question of law for the court, and not of fact for the jury. Wontner v. Shairp, 4 Carrow & Oliv. 542. DEVIATION. See Plans deposited. DIRECTORS' POWERS. Pledging funds for projects not authorized by their act.-Assent of majority not binding on minority-Affidavit. - Injunction.-The managing directors of a railway company, with the view of increasing the traffic on their line, entered into a contract with a steam packet company, that they would guarantee the proprietors of the steam packet company a minimum dividend of 5 per cent. on their paid-up capital, until the company should be dissolved, and that upon a dissolution, the whole paid-up capital should be returned to the shareholders in exchange for a transfer of the assets and properties of the steam packet company. One of the shareholders filed a bill on behalf of himself and all other shareholders who should contribute, except the directors, against the company and the directors, and obtained Bubble railway company.-Demurrer.-Fo reign and English law. A purchaser of scrip in a projected Spanish railway company filed his bill against the provisional committee of that company, praying that an agreement with a promoter of the railway, whereby he was to receive a large sum out of the subscribed funds of the company, might be declared void, and also praying a general account of the affairs of the company. The bill having made a case against the directors from which it would appear that the scheme was a fraud upon the plaintiff, and that the company was in fact a bubble company, a demurrer to the bill for want of equity was allowed, on the ground that the plaintiff having made out a case of fraud against the defendants, he was not entitled to the detailed relief sought by his bill. Semble, That where a bill contains averments as to the effect of certain articles of a foreign law, but is silent as to others, the court will presume that the foreign law only differs from the English in the particulars stated. Harvey v. Collett and others, 4 Carrow & Oliv. 387. INFANT SHAREHOLDER. Calls.-The plea of infancy is not of itself an answer to an action for calls on a railway company under the 8 & 9 Vict. c. 16. brought under that statute, any other defence Quare, Whether to an action for calls, can be set up than one of those mentioned in the 27th section of that act. The Proprietors of the Cork and Bandon Railway Company v. Cazenove, 34 L. O. 464. INJUNCTION. Covenant.-Legal rights.-Balance of injury. -The court below having granted an injunction, pending the decision of a case sent for the opinion of a court of law, Held, by Lord Chancellor, on motion to dissolve the injunction, that the plaintiff's equity |