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1851

PARTRIDGE

v.

GARDNER.

is a good cause of action disclosed in the declaration, and that where there is none, the plaintiff shall not get his costs. We are therefore of opinion, that the plaintiff is not entitled to the costs of those issues which have been found for him, and that the judgment of the Court below is right, and must be affirmed.

Judgment affirmed.

May 16.

Held, on error,

that the 26th section of the 8 & 9 Vict.

c. 16, gives the form of declaration to be adopted in actions for calls; and that

such form is unobjectionable on special demur

rer.

WILSON . THE BIRKENHEAD, LANCASHIRE, AND CHESHIRE
JUNCTION RAILWAY COMPANY.

ERROR on a judgment of the Court of Exchequer. This

was an action of debt brought by the plaintiffs below (the defendants in error) for calls in respect of certain shares, of which the plaintiff in error was the holder.

The declaration, which pursued the form given by the 26th section of the 8 & 9 Vict. c. 16, alleged, that “the defendant is the holder of ten shares in the said Company, and is indebted to the said Company in 1007. in respect of a call of 101. upon each of the said shares." To this declaration the defendant below had demurred specially, one of the grounds of demurrer being, that the declaration did not contain any allegation that the defendant was a holder of the shares at the time the calls were made. The Court of Exchequer held the declaration good, and judgment was accordingly given for the plaintiffs below (a).

Willes for the plaintiff in error (b).—The only question upon which the plaintiff in error seeks the opinion of this Court is, whether the allegation in the declaration, that

(a) See the pleadings fully set

out, 3 Exch. 478, n.

(b) Before Patteson, J., Maule, J.,

Wightman, J., Erle, J., and Williams, J.

was

1851.

WILSON

v.

BIRKENHEAD,

AND CHESHIRE
JUNCTION
RAILWAY CO.

the defendant "is the holder of the shares," is sufficient. An averment in a declaration which speaks of time present is to be taken to speak as from the time the action commenced. No authority can be adduced to shew that LANCASHIRE, such an allegation has been held to refer to a period anterior to the commencement of the suit: Owen v. Waters (a). Now, according to the rules and principles of pleading, it is necessary that the plaintiffs below should allege in their declaration, that the defendant was a holder of the shares upon which the calls were made at the time the calls were made. This declaration does not state either that the defendant was a holder at that time, or at the time when the calls became payable. The question then arises, whether the 26th section of the 8 & 9 Vict. c. 16, helps the declaration. Now that section does not give a form of declaration, but merely enacts that it shall be sufficient to allege concisely such facts as will support the action. The declaration must therefore state, that the defendant was the owner of the shares, and that the debt hath accrued to the Company by virtue of a call made by them in respect of such share. The allegation, therefore, that the defendant was the holder of the shares at the commencement of the suit is altogether immaterial and unnecessary. [Maule, J.-The 26th section expressly enacts, that it shall be sufficient for the Company to state, that the defendant is such a holder of shares as to be indebted in respect of certain calls. The defendant cannot be such a holder unless he was a holder at the time the calls were made. He cannot, I think, part with his shares after the call has been made, unless he has paid it.] He may part with his shares by consent of the Company. [Maule, J.-It may be, that the Act of Parliament allows the Company to declare for calls, under the provisions of the 26th section, in those cases

(a) 2 M. & W. 91.

1851.

WEBSTER

v.

BIRKENHEAD,

AND CHESHIRE

JUNCTION RAILWAY Co.

only where the party has retained his shares up to the time of action brought, and that they shall be left to their common law remedy against a shareholder who has LANCASHIRE, parted with his shares. Such a construction is an answer to the objection, that the statute cannot contemplate any unnecessary statement in the declaration.] The 27th section shews, that this prescribed form of declaration is intended to apply to all cases of actions for calls. [Maule, J.-If that be so, the 26th section is a legislative exposition, that the allegation that the defendant "is a holder of shares," may be supported by proof that he was so at the time the call was made.]

Welsby, for the defendants in error, was not called upon.

PATTESON, J.-The legislature has given this form of declaration, and we cannot say that it is not sufficient. We are therefore all of opinion, that the judgment of the Court below must be affirmed.

Judgment affirmed.

1851.

THE AMBERGATE, NOTTINGHAM, BOSTON, AND EASTERN
JUNCTION RAILWAY COMPANY V. NORCLIFFE.

ERROR on a bill of exceptions.

Debt for calls, under the 8 & 9 Vict. c. 16. Plea, not indebted; and issue thereon. At the trial before Platt, B., at the last Nottinghamshire Summer Assizes, it appeared that the calls were made payable by instalments; when it was objected, on the part of the defendant, that the calls were invalid; and, in support of that objection, the case of The Ambergate &c. Railway Company v. Coulthard (a) was cited. The learned Judge ruled in compliance with the alleged decision, and to that ruling a bill of exceptions was tendered.

Whitehurst, for the plaintiffs in error (b).—It has been expressly decided, that a call payable by instalments is valid, both by the Court of Queen's Bench in The Architects' Insurance Company v. Wilson (c), and by the Court of Exchequer in The Birkenhead, Lancashire, and Cheshire Junction Railway Company v. Webster (d). [Lord Campbell, C. J.-The point is not arguable now.]

Willmore contrà.-The call and the action for the call are mere creatures of the 7 & 8 Vict. c. 16. The 24th, 25th, and 29th sections of that Act do not appear to have been fully brought to the attention of the Court in the cases upon this question. In the 23rd and 25th sections, the words "amounts of call" must mean the amount of the whole call, and apply to one single payment. The 29th section gives power to the directors of the Company to declare the shares forfeited if a shareholder fail to pay

(a) 5 Exch. 459.

(b) Before Lord Campbell, C.J., Patteson, J., Coleridge, J.,Maule, J.,

Wightman, J., and Cresswell, J.
(c) Q. B., Mich. Term, 1850.
(d) Ante, p. 277.

May 19.

Held, on error,

that, under the

8 & 9 Vict.

c. 16, a call made payable by instalments

is valid.

1851.

AMBERGATE &c.

RAILWAY CO.

v.

NORCLIFFE.

within two months after the day appointed for the payment of the call. If a call can be split, it is difficult to say at what day the call is to become payable. [Lord Campbell, C. J.-It may be, that the day referred to is the day when the last instalment becomes payable. The call is clearly valid.]

PER CURIAM.-There must be a venire de novo.

Venire de novo.

May 19.

Mere payment of rent by the occupier of a house for the use of lights is not an interruption of the en

the 3rd section of the 2 & 3

THE PLASTERERS' COMPANY V. THE PARISH CLERKS' COM

ERROR

PANY.

on a bill of exceptions. This was an action on the case, for the obstruction of lights of the plaintiffs' house.

The defendants below, by their last plea, traversed the joyment within allegation in the declaration, that there were and of right ought to be divers windows of the plaintiffs', through which the light and air did enter, and of right out to enter, modo et formâ; upon which issue was joined.

Will. 4, c. 71. The occupier of a house paid

an annual sum, under a parol agreement, to the owner of the adjoining land for the

liberty of keep

open which

At the trial of the cause before Pollock, C. B., at the London Sittings after last Trinity Term, the facts of the case appeared as follows: On the part of the plaintiffs, it was proved that the plaintiffs' house, which was situate in ing his windows Wood-street, Cheapside, abutted on a yard of the defendants. From the year 1670, down to the commencement of the suit, the house had four windows looking into this yard. These windows received light and air from the yard, without any obstacle or obstruction, until the year 1848, when the defendants erected a building in the yard, which obstructed the windows. The house of the plaintiffs, and

looked upon the land, and continued in such active enjoyment for

twenty years: -Held, on er

ror, in an action by the occupier against

the owner of the adjoining pre

mises for an obstruction to his lights, that the payment so made was no evidence of an interruption of the enjoyment within the 3rd section of the 2 & 3 Will. 4, c. 71.

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