1849.

ARMITAGE

v.

COATES.

the amount of the set-off. That in effect amounts to a decision upon all matters in difference between the parties, and disposes of the pleas of payment and set-off. The next objection raised to the declaration was, that the award was made in pursuance of the last order; but it is clear that it was made in pursuance of the original submission, which was made a rule of court. The latter order merely enlarged the time, and did not affect the original promise.

ROLFE, B.-I think that the matter is clear, upon the authorities cited by Mr. Robinson.

PLATT, B.-I am of the same opinion; and I may add, that I do not entertain any doubt upon the matter.

Judgment for the plaintiff.

Dec. 8. In an action

upon a policy of insurance,

stated, that

"the plaintiffs,

by certain persons using and

carrying on business, and in

the said policy

ASSUMPSIT. The declaration stated, that before and

at the time of the making and subscribing of the policy the declaration thereinafter mentioned, the defendants were united together in copartnership for the purpose of carrying on, and are carrying on, together in copartnership, the trade and business of assurers of ships, goods, and merchandise, in, by, and under the name, style, and firm of The General Maritime Assurance Company; and thereupon "the plaintiffs, by certain persons using and carrying on business, and in the said policy of assurance designated and described by the names, style, and firm of Dewar & Cullinford, the agents plaintiffs in that of the plaintiffs in that behalf," heretofore, to wit, on &c., caused to be made with the defendants, in, by, and under

of insurance designated and

described by the names, style, and firm of

Dewar and Cullinford, the

agents of the

behalf," caused

to be made with the defendants

a certain policy of insurance, &c. :-Held bad on special demurrer, on the ground that the declaration omitted to state the christian names of the plaintiffs' agents, or to allege any excuse for such omission.

the said name, style, and firm of The General Maritime Assurance Company as aforesaid, a certain policy of assurance, with certain blank spaces thereinafter following, and purporting thereby, and containing therein, that the said persons so using, and in the said policy designated and described in, by, and under the said name, style, and firm of Dewar & Cullinford, as agents, as well in their own name, &c. The declaration then proceeded to set out the policy of assurance upon a certain vessel named the "Pendadelfos," and laid as a breach the non-payment by the defendants of loss occasioned by the stranding of the vessel. Special demurrer, assigning for cause (inter alia) that the declaration was insufficient, "inasmuch as it did not state the respective christian names of the persons therein described as Dewar & Cullinford; and that it did not give or offer any sufficient or valid cause for omitting to state the christian names of the said persons respectively." Joinder in demurrer.

Montague Smith, in support of the demurrer.-The first objection to this declaration, to which the special demurrer is directed, is the omission to state the christian names of the agents. These parties ought properly to have been described by their christian names, or some excuse ought to have been stated for that omission. This rule is a wellknown one in pleading. Thus it is laid down in Stephen on Pleading, p. 339, 5th edit., that, "this rule relates to persons not parties to the suit of whom mention is made in the pleading. The names of such person, viz. the christian name and surname, or name of dignity, must in general be given; but if not within the knowledge of the party pleading, an allegation to that effect should be made, and such allegation will excuse the omission of the name." This rule has been frequently recognised in recent cases: Ball v. Gordon (a), Tigar v. Gordon (b), Kynnersley v. (b) Id. 347.

(a) 9 M. & W. 345.

1849.

STURGE

V.

RAHN.

1849.

STURGE

υ.

RAHN.

Knott(a). In Gatty v. Field (b), it was held, that the omission of the christian names in the statement of a transaction between the parties upon which the action turns, not being the description of a written instrument, is a fatal objection if specifically pointed out by demurrer. That case is therefore precisely in the defendant's favour. Here no christian names are given, but the name of the firm only.

Bovill, contrà.-The objection raised to the declaration, on the ground of the omission to state the christian names of the agents, fails; for the declaration states that they are so described in a written instrument. [Parke, B.-They are also stated independently of the written instrument; so far as the description has reference to the instrument, it may be sufficient.] The special demurrer is not specifically directed against that allegation. The plaintiff, therefore, is at liberty to treat the demurrer as pointed at either of the allegations, viz. the one which states the names of the agents to be so described in the instrument, or that which sets forth the name of the firm independently of the written instrument. The first of these is correct, and the plaintiffs may treat the demurrer as directed to that allegation. [Parke, B.-In the case of Gatty v. Field, Lord Denman, C. J., in delivering the judgment of the Court, said, with respect to the objection to the omission of the christian names, "We are of opinion that, when such omission or substitution is made, not in the description of some written instrument, but in the statement of a transaction between the parties on which the action turns, it is good ground of demurrer." The objection here is supported by that decision. The plaintiffs are right in their description of the agents, where they have stated them to be so designated and described in the written instrument;

but the plaintiffs are wrong where they omit their christian names in the description of an independent transaction. The declaration is therefore bad upon that ground, and the plaintiffs had better amend.]

PER CURIAM (a).—The plaintiffs may amend in a month, otherwise there will be

Judgment for the defendants.

(a) Parke, B., Alderson, B., and Platt, B.

1849.

STURGE

v.

RAHN.

THE MIDLAND GREAT WESTERN RAILWAY COMPANY OF

IRELAND V. EVANS.

Dec. 5.

DEBT. The declaration stated, that the defendant, be- In an action by

fore the commencement of the suit, to wit on &c., was and from thence hitherto hath been and still is the holder of divers, to wit, forty shares in the said Company, and then and at the time of the commencement of this suit was and still is indebted to the said Company in the sum of 300l., in respect of divers, to wit, three calls of 21. 10s. respectively, upon each of the said shares, to wit, one call of 27. 10s. upon each of the said shares, amounting in the whole to the sum of 100l., another call of 27. 10s. upon each of the said shares, amounting in the whole to the further sum of 1007., and another call of 2l. 10s. upon each of the said shares, amounting in the whole to the further sum of 100l., whereby an action hath accrued to the said Company, by virtue of a certain Act of Parliament made and passed in the session of Parliament holden in the 8th and 9th years of the reign of her Majesty Queen Victoria, intituled (8 & 9 Vict. c. 16), and also by virtue of "The Midland Great Western Railway of Ireland Act, 1845," and of "The Midland

a Railway Company against a shareholder for calls, the declar

ation stated,

that the defend

ant, before the

commencement

of the suit, was and from thence

hitherto hath

been, the holder

of divers shares,

to wit, &c., and time of the com mencement of

then and at the

the suit, was

and still is in

debted to the

said Company in respect of

divers shares, to

wit, &c., in respect of three

calls, whereby accrued to the said Company,

an action had

by virtue of the

8&9 Vict. c. 16, and also by virtue of another

Act (naming it), and of the (setting out the title of another special Act):-Held good on special demurrer, for that, if the declaration were objectionable, the superfluous words might be rejected.

1849.

MIDLAND GREAT WESTERN RAILWAY Co. OF IRELAND

v.

EVANS.

Great Western Railway of Ireland Act, (Mullingar to Athlone,) 1846," to demand and have of and from the defendant the said sum of 300l., &c.

Special demurrer, assigning for causes, that the declaration was bad, as there is no allegation therein that the defendant was the holder of the shares at the time when the calls or either of them were made, and if so, that it is only argumentatively stated; and also, that it is not stated therein that the defendant had notice of the said calls, or for whom they were made on behalf, or for any purpose of the said Railway Company, or how the defendant became indebted, or how the action accrued by virtue of the said Acts of Parliament; and also, that the declaration is not in accordance with the form given by the first-mentioned Act. Joinder in demurrer.

The demurrer was argued in the present sittings (Dec. 4).

G. R. Clarke, in support of the demurrer.-There are two principal objections to this form of declaration. First, It states that the defendant "was and still is indebted," instead of stating that the defendant is the holder of the shares, and is indebted to the Company. The form of declaration is given by the 26th section of the stat. 8 & 9 Vict. c. 16. The plaintiffs ought either to have followed this, or to have declared in a more special manner. If the latter course had been adopted, difficulties might have arisen in framing the declaration, and the 26th section, already referred to, was enacted to obviate such difficulties. In the next place, the declaration is open to demurrer, on the ground that it also departs from the form given, by stating that, by virtue of the general Act and the special Acts, the plaintiffs have a right of action. If the last special Act gave the right of making calls, the declaration should have so stated the fact. [Rolfe, B.-Suppose one set of calls is made under one special Act, and the other set of calls under