My present impression is, that it is not the practice to make such an order. However, I will look into the matter.

May 3.-On this day his Honour made orders in the terms of both notices.

QUEEN'S BENCH-TRINITY TERM.

297 MIDLAND G. W. RAILWAY Co. v. QUIN.

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May 25th.

An action of debt for railway calls having been brought against an infant shareholder, he pleaded infancy at the time of "the making of the contract in declaration mentioned." Held on special demurrer, that inasmuch as his individual liability might in one particular case have arisen independently of contract, the plea was in its present form no answer to the action. Quere, whether the Companies' Clauses Consolidation Act, 1845, (8 & 9 Vic. c. 16,) affects the legal status of infant shareholders ?*

Debt for railway calls. The declaration, (which was framed in the statutable form,) alleged that the defendant was indebted to the company in respect of a call of £5 a share on 40 shares.

1. Plea, general issue;

2. Plea, onerari non, because he says that he, the said defendant, at the time of the making of the said supposed contract in the said declaration mentioned, was in fact under the age of 2 years-to wit, of the age of 19 years, to wit, at the place aforesaid, &c., verification.

Special demurrer to second plea, assigning for

causes, inter alia, that it was uncertain what contract is referred to therein, there being none mentioned, and then declared that the plea should have averred the infancy of the defendant, either at the time of the registration of the shares or of making the calls.

Also, that the plea was no answer to the action, and that by the provisions of the Companies' Clauses Consolidation Act, 1845, an infant shareholder is liable to calls.

Section 8. "Every person who shall have subscribed the precise sum or upwards to the capital of the Company, or shall otherwise have become entitled to a share in the Company, and whose name shall have been entered on the register of the shareholders hereinafter mentioned, shall be deemed a shareholder of the Company."

Secs. 18 & 19 prescribe the formalities to be observed in case of the transmission of shares, "in consequence of the death, or bankruptcy, or insolvency of any shareholder, or in consequence of the marriage of a female shareholder, or by any other lawful means than by a transfer according to the provisions of this the special act,' without which formalities "no person claiming by virtue of any such transmission shall be entitled to receive any share of the profits of the undertaking, nor to vote in respect of any such share as the holder thereof."

Sec. 21 provides, that with respect to the provisions for enforcing calls, the word "shareholder" shall extend to and include the legal personal representative of such shareholder, (as defined in sec. 8.)

Sec. 79. "If any shareholder be a lunatic or idiot, such lunatic or idiot may vote by his committee, and if any shareholder be a minor, he may vote by his guardian, or any one of his guardians, and every such vote may be given either in person or in proxy."

Joinder in demurrer.

The defendant appeared and pleaded by his guardian.

Mr. Boyce for the demurrer-The calls have been made by the company pursuant to 8 Vic. c. 16, (Companies' Clauses Consolidation Act,) sec. 21 & 22. The meaning of the term shareholder is defined by sec. 8, where there is no reservation in favour of infants. In sec. 79, minors holding shares are expressly provided for. Dwarris on statutes, 516-51. A party may become entitled to shares by original subscription, transmission, and assignment. Sec. 18 provides for the case of a female marrying whilst entitled to shares, and makes her husband liable. The cases where parties have been held liable for rents accrued during their infancy, are analogous. Mahon v. O'Ferrall, (10 Ir. L.. Rep. 527;) Kirton v. Elliott, (2 Bulstrode, 69, 1 Furlong, 114, and manuscript case there cited ;) Billing v. Osbrey, (Exch. Hil 1829,) Evelyn v. Chichester, (3 Burr. 177.) Tie plea here should be taken in the most unfa. vourable sense for the pleader. In Cork and Bandon Railway Co. v. Cazenove, (11 Jurist, 302) almost the point in question was decided, as it was there held that a party who had attained his majority was liable for calls which accrued during infancy, without any act of ratification on his part.

Mr. Henn, Q.C., and Mr. O'Hara, contraThis plea speaks of a contract, and this was proper, the declaration merely omitting to set it out, in consequence of the succinct form prescribed by the

act.

The latter makes no reservation in favour of

The

infants, and the provision of the common law must be taken to apply to them. Contract is the sole medium of liability here. It does not follow, even in the case of a legatee, that he must accept of the gift, (19 sec.) Such acceptance, we submit, cannot be binding till 21. [Blackburne, C. J—It is evident that the Act of Parliament recognizes the existence of an infant shareholder.] The cases referred to respecting lands are distinguishable, and rest on peculiar principles. This is a matter connected with trade. In the case in 11 Jurist, the action was brought after party attained his full age, and Coleridge, J., distinctly avoids giving any opinion as to the liability of a party sued whilst an infant. Lunacy and idiotcy are both defences under a plea of non est factum, and it would be quite absurd to hold lunatics and idiots liable under sec. 79. 19th section treats the vesting of shares in a husband as a legal consequence, and this raises an inference in our favour. The true rule seems to be this, to consider the act as contemplating only such parties as contractors, who are legally of ability to conceive a liability, without some act on the part contract. [Blackburne, C.J.-It is not possible to of the person made liable.] The Court ought not to extend the principle contended for beyond the cases of landlord and tenant. It is very doubtful whether in all these last-mentioned cases the actions were not brought after the infancy determined. Kettle v. Elliott, (cited in Rolle Ab. 731, K.;) and Ketsey's case, (Cro. Jac. 320, S. C. Brown. 120,) both of which are probably identical with Kirton v. Elliott, (2 Buls. 69;) Love v. Griffith, (1 Scott, 458.) The general proposition of law

nonsuit, which, however, he declined to do, reserving liberty to the defendant to move for a nonsuit, in the event of a verdict for the plaintiffs.

The defendant went into his case, and proved, amongst other matters, that the money was converted into a loan by the Loan Fund Society, on the day of its lodgement, or the next day; and that depositors had the privilege of recommending borrowers to the society, which the deceased Thomas King had, on more than one occasion, exercised.

The jury found for the plaintiffs.

Mr. Tombe, Q.C., with whom was Mr. R. M. Mills, showed cause against the conditional order for entering a nonsuit. The plaintiffs could not sue the Loan Fund Society for two reasons; 1st, The rate of interest received by King was contrary to the act of Parliament, and the rules of the society; 2ndly, King had no debenture, which he was required by the rules of the society to have. The defendant, therefore, by entering into a contract with King, which he had no authority to enter into on behalf of the society, has violated his duty, and taken upon himself the responsibility of the contract. [Ball, J.-The receipt shows the facts of the contract, and that interest was to be paid at £6 per cent.; and your case is, that inasmuch as the defendant could not bind the Loan Fund Society, and, although acquainted with the rules, yet was guilty of a violation of them in the contract, he thereby made himself personally liable. Have you any case?] The case of Higgins v. Senior (8 M. & W. 834) is an authority. It was there laid down by the learned judge in his charge, "that if the defendant had acted as agent, not having authority to make the contract, he was liable for so acting, and that he was responsible whether the party knew he so acted or not-that knowledge made no difference." [Mr. Hutton, Q.C.-We rely on that case as an authority for the present defendant. There the contract was entered into in the defendant's own name, and the question was whether he acted as agent or not.] [Ball, J.Here, however, he enters into the contract for the society, and to do something on their behalf.] The words of the contract are future as regards the society. They are to be added to the amount of capital," &c., implying that he himself should do something thereafter, in order to make this money the property of the society. It matters not whether the original intention of the testator was to enter into a contract with the society, or with the defendant personally the defendant exceeded his authority, and was guilty of a breach of duty, he is therefore liable. Appleton v. Binks, (5 East. 148); Story on Agency, p. 118. The evidence which supports this view, is the document itself, in which he contracts that certain things should be done, which could not be legally done, and which were never done in point of fact. It is perfectly clear upon the face of that receipt, that the defendant exceeded his authority.

66

Mr. Hutton, Q.C. (with whom was Mr. J. Adair,) contra.-The whole transaction was evidently one with the society; and though irregular, it cannot fix the defendant with a liability he never contemplated. The returns (which, being regular official documents,

signed by the trustees, we submit, are admissible in evidence,) show that the defendant as clerk did his duty and transmitted the money to the trustees. It is further in evidence that the deceased recommended borrowers to the society, which he could only have done as a depositor. It was with the full concurrence of King that no debenture was given, as he would not have been entitled to receive more than £5 per cent. interest on such debenture. [Ball, J.— There can be no doubt that the act of Parliament was violated, and very illegal transactions entered into. There was gross culpability; but the question is, whether the mere instrument of the parties is liable in this action. It has been laid down in Downman v. Williams, (7 Ad. & El. 111,) that the burthen of showing that the agent had no authority, or that he exceeded his authority, is imposed upon the plaintiff. That decision is very important in this case.] There is no evidence to show that the defendant had not authority to do every thing he did. On the contrary the trustees adopt his acts, and he would have been liable to them in an action if he had not handed over the money. Tenant v. Elliott, (1 Bos. & Pul. 3.) [Jackson, J.-The plaintiffs say that this was an illegal transaction, and that therefore the defendant is liable. It certainly was a great irregularity, but an irregularity to which King was a party, and by which he was benefitted. Ball, J.

How do the plaintiffs escape from the maxim, es turpi contractu non oritur actio?] Whether the transaction was illegal or not, the defendant was nothing more than a clerk, and if the action lay at all, it should have been brought against the princi pal. Stephens v. Badcock, (3 Barn. & Adol. 354,) Sadler v. Evans, (4 Burr. 1985.) In Spittle v. Lavendar, (2 Brod. & Bing. 452,) Park, J. says: "It is not merely because he calls himself an agent that he can become liable; he must so frame the undertaking as to make his additional engagement clear beyond dispute." There is nothing of the kind in this case. The fair construction of the instrument is that it was a contract with the society. The effect of that instrument was entirely for the consideration of the judge, who ought, therefore, to have nonsuited.

Mr. Mills, in reply.-The question the judge left to the jury was, whether the loan to the defendant was in his personal or official capacity. The nonsuit question, therefore, does not affect us, for that assumes that the loan was to the Drumskett Loan Fund Society. [Jackson, J-We are not now to look at what the judge left to the jury, or at any thing he did after he refused to non-suit. We are to consider the question as it stood at the close of the plaintiff's case.] But the evidence of the money having been paid to the society came from the defendant's witnesses.

PER CURIAM.-There was abundant evidence on the face of the plaintiff's case to show that the loan was made to the society. The receipt of William Ker, which is the document on which the plaintiffs sue, and the document coming out of the hands of their own witness, Mr. Piesse, and which were clearly in evidence, are quite sufficient to establish that fact. There is no proof that the defendant had not authority from the society to receive that loan on their behalf upon the terms he entered into, and

TAYLOR v. CRUISE.-June 5. pros-Removal of suit to Inferior Court. oceedings instituted in one of the superior ts be removed to an inferior jurisdiction, at instance of the plaintiff, and with the defendimplied consent, the defendant cannot afterds enter a rule for non pros in the court

e.

'Callaghan, for plaintiff, moved to set aside ler of the 23rd of May, for non pros, "unless ation filed within four days." Counsel relied affidavit of plaintiff, which stated that it was on between the parties after service of the nd before declaration-to abandon proceedthat court, and to proceed by civil bill, in uence of the smallness of the demand; that suance of said agreement, proceedings in the or court were stayed, the civil bill process and a decree pronounced in favour of the ff, which the defendant obeyed by paying the t, and thereby admitting the jurisdiction of

art.

Darley, in support of the order, read det's affidavit, which negatived the fact of his been a party to the abandonment of the dings in the superior courts, and the substiof civil bill proceedings.

RRENS, J.-Did the defendant appear below? O'Callaghan. He did, and opposed the iff's claim, and when defeated, paid the debt. 3 clear defendant, when below, considered greement in existence, as he did not plead a ending in a superior court, in which case ff could not have obtained a decree.

RENS, J.-We are of opinion that defendant, no verbal or written agreement took place, ted to abandon the suit in this court, by apg below, and admitting a jurisdiction there; tion to set aside the order must, therefore, be d, with costs.t

Court should be of opinion that the Commissioners of Cashel were a corporation according to the true construction of the act of 9 Geo. 4, c. 82, and should have been sued accordingly. There was another point reserved as to the right of plaintiff to recover on the common counts, a special contract having been given in evidence. This point, however, was abandoned by defendant's counsel in argument.

Messrs. Martley, Q. C. and Lynch, Q. C. for the defendants now moved accordingly. The Commissioners have a common name, and a perpetual succession of their property is provided for.

Messrs. George, Q. C., Wall, Q. C. and Hobart for the plaintiff.

As to the first

The

PIGOT, C. B.-This was an action of assumpsit, and the declaration contains a count on the special contract and the common counts. ground of objection relied upon on behalf of the defendants it is contended, that as the terms of the particular contract have not been fully complied with, the plaintiff is not entitled to recover. Court intimated in the course of the argument that this came within the class of cases where the parties who receive a partial benefit are liable pro tanto, and in Lucas v. Godwin (5 Scott, 500) the rule, that applies to such cases, is well laid down. The next and principal point was that the Commissioners of Cashel are a corporation, and ought to be sued as such a question certainly involved in great doubt, arising rather from the language of the Municipal Act than from that of 9 Geo. 4. A case lately coming before the Court of Queen's Bench, but not as yet reported, has been referred to, and though it was not neces sary to decide the question there, yet it was fully raised and argued, and the Court referred to it in delivering their judgment, and expressed a strong and decided opinion upon it. I do not refer to this case as an authority but merely as showing what was the strong impression of that Court as well as of the public, on the question. In like manner, in a cause at present pending in the Court of Chancery, we find those very Commissioners made parties by name, and not treated as a corporation. I refer to those circumstances as indicating strongly that since the act they have not been treated nor considered as a corporate body, and it would require very strong reasoning and authority to induce us now to hold of the act necessarily to constitute them a corporate them to be such. Now, there is nothing in the terms body. It is quite true that where a charter invests a body with certain rights, and contemplates the discharge by them of certain duties, and that those objects cannot be effectuated unless by their being a corporation, in such cases, even in the absence of express terms of incorporation, whatever the words used may be, the law would hold them to be a corporation; and there is no distinction in this respect between a body incorporated by charter and by act of Parliament. But here the provisions of the 9 Geo. 4, as to their succession and the mode of suing, are consistent with their not being a corporation. There are two principal points, the succession of the property and the use of a common name,