In the Exchequer.-Crellin v. Calvert-Crellin v. Brook. That action is against another shareholder | In order, then, to fix the defendant by other in this company, with the same plea and means, you must shew that he is liable either the same result. There, also, the defendant because he became a party to some deed which having failed in proving his plea in abate- authorized the branch at Castletown, so that ment, the plaintiff was bound to prove the he was in very truth a partner in that branch, liability of the defendant, and for this pur- or you may fix him by shewing that the other pose he proceeded to shew what was not parties, whether rightly or wrongly, established in the other case, namely, a deed executed a branch bank at Castletown, and that he by the defendant in 1836, by which he be- afterwards ratified their act. There is no came a partner in the Isle of Man Joint-stock pretence for saying in this case that there was Bank. The plaintiff also proved, that just any unanimous vote of the directors for this before the stoppage of the bank, which was purpose; and I do not accede to the notion long after the execution of that deed by the that we can presume anything at all on the defendant, the plaintiff deposited a sum of subject. In order to fix a man by shewing 4001. in that bank, and afterwards withdrew his concurrence in a deed by which others a small portion. She was consequently en- profess to have bound him, you must shew titled to recover the balance from the share- an express or implied authority from him holders, and contended that the defendant authorizing them to do so; and the doubt I being one of them, she was entitled to recover had was, whether there was evidence to warfrom him. But the difficulty here is of a dif- rant the jury in finding what they did, namely, ferent nature from that in the other action: it either that this act was done in pursuance of is said the plaintiff deposited this money, not the provisions of the deed of 1836, or, that it with the original bank at Douglass, which was done in fact, and that the defendant knew forms the subject of the deed of partnership, of it. If either of these had been established, but at a branch bank which was afterwards no doubt he would be liable; but the evidence established at Castletown; and the defendant simply was, that this man executed the deed says, " Although I was partner in the bank at of partnership in 1836, and that the branch Douglass, there is no proof that I consented to bank was opened at Castletown and business bę so in the bank at Castletown." That is a carried on there from 1839 to 1843. It is perfectly good objection if made out in the of no use, however, to discuss these doubts point of fact; for I think that, by becoming any further, as my lord and my brother Platt partner in a bank in London, I only under- say they think there was sufficient evidence take with my partners to authorize them to of knowledge of this fact on the part of the do in our joint names such business as is or- defendant, and that is also the inclination of dinarily carried on by banks, and that it is my own mind. I have been asked, what no part of that authority that they may, with- would I have said if the defendant lived next out my consent, establish a branch bank at door to the branch bank; must he be preNewcastle. If, indeed, I adopt or ratify it in sumed to have known of its existence? I do any way, I am bound by my act; but estab- not know where he lived, but he is described lishing such a branch bank is no part of car- as of Huddersfield; and although that is a rying on the business in London. The au- good way off, still distance is only matter of thority to carry on this branch bark at Doug- degree; and this concern having been carried lass does not, therefore, independent of all on as a branch bank for nearly four years, is other stipulations, authorize the carrying on some evidence that all persons concerned in one elsewhere; besides which, the terms of the Douglass bank must have known its exthe deed expressly meant to exclude the di- istence. The rule in both cases will thererectors from any such general authority, for fore be discharged. the 27th article says that the business shall be carried on at Douglass, in the Isle of Man, and other places, "to be determined according to a clause thereinafter mentioned, namely, the 31st, by which it is provided, that, on the concurrence of all the directors, branches may be established and carried on; and, consequently, that unless the stipulations of the 31st article were complied with, that deed did not authorize the branch at Castletown. PLATT, B.-I concur in the opinion expressed by my lord relative to the rule in the first of these actions. It was brought against the defendant to recover a sum of 6767., to which there is a plea on the record, in which the defendant says, "I am liable to be sued by you the plaintiff, but not in this action: there is a debt which you may claim from me, but then it must be from me with thirteen In the Exchequer.-Hodgkins v. Hancock. Rule discharged other persons." Issue is taken on that plea, the beginning, not merely that there was a and the parties go down to trial. It is said, subsequent acquiescence on his part. I, therethat the defendant's failing to prove his plea fore, think that the rule in this case also placed the parties in the same position as if ought to be discharged. judgment had gone by default. That, however, is not quite so, at least so far as regards the application sought to be made of it. If, indeed, no evidence were given at the trial, the parties would be in that position; but when it is attempted to make out the plea, and the defendant fails in so doing, it makes a case against him, as tending to shew that the plea was untrue, as also will the attempt- Where a declaration in debt gives credit for part But there is HODGKINS V. HANCOCK.-May 5th, 1845. PLEADING TRAVERSE. payment, the allegation is not traversable. alleged that the testatrix, in her lifetime, to ing to impugn the fact of there being two other co-contractors. This case does not, therefore, stand on the same ground as if DEBT against the executors of one A. C.; the there had been a judgment by default; for declaration, which was dated in Nov., 1844, the taking into consideration the evidence given at the trial makes all the difference. That evidence was, that there was a debt to the amount claimed, due to the plaintiff by the company, and that two persons, not named in the plea, were partners in the company. The counsel for the defendant then-cui bono, or for what purpose I do not understand asked the witness, "Were not the thirteen persons mentioned in the plea on the record also partners?" That question, with its answer, put him out of court, for the answer was, that they were all partners; after proving which, a pass book was put in up to the 31st December, 1842, and treated as the subject-matter of the cause. another view of this case: if the defendant meant to establish that this was not the debt intended to be pleaded to, did not the onus lie on him to shew some debt, as to which, sixteen persons were liable? There is no Huddleston, in support of the demurrer.— evidence of that at all, and the only evidence given on the trial, was against fifteen as cocontractors, and the only contract on which they are co-contractors is one in respect of which the defendant was a party. I think, therefore, that this verdict ought not to be disturbed. As to the case of Crellin v. Brook, the observation of my lord appears to me to be most conclusive: it originally was contemplated that branch banks should be established sub modo, and under certain restrictions, viz., that all the directors should agree to the formation of them. It is clear, in this case, that a branch bank existed, and McMahon, contra.-Every substantial allethat business was carried on in it for nearly gation of fact is traversable; Co. Litt. 303, b.; four years; and we must take it for granted, Sarsfield v. Witherly, Carth. S2; and, alas no question was put, or required to be put, though a particular allegation might not be to the jury on the point, that this was done essential in the first instance to the maintewith the knowledge of the defendant from nance of the action, the plaintiff makes it Although plaintiffs are advised to give credit in their declarations for part payment, 1 Chit. Pl. 288; Kenyon v. Wakes, Mee. & W. 764, it is only in order to prevent the necessity of pleas of payment, and does not render the allegation of part payment material and traversable. In order to see if an issue be material, the test is, would a verdict found on it either way decide the merits of the action? and it is clear, that no verdict on the issue whether these part payments were made, would decide the present case. In the Exchequer Chamber.-King et al v. Reginam. material by introducing it. [Alderson, B.How does this traverse affect the cause of action?] The allegation of part payment assists the plaintiff by taking the case out of the statute of limitations; for, without this allegation, the declaration shews on its face that the cause of action accrued more than six years before the action was brought; Stafford v. Forcer, 10 Mod. 311; Bill v. Lake, Hetl. 138. The recent case of Hollis v. Palmer, 2 Bing. N. C. 713, is in point to the present. POLLOCK, C. B.-Our judgment in this case must be for the plaintiff. With respect to the argument deduced from the statute of limitations, it has been laid down for a great many years, that, if you wish to avail yourself of the statute, you must plead it; and analogous to the present, namely, that the defendant did not pay the interest mentioned in the declaration. But the question now before us was not discussed in that case at all, the only point decided being, that the statute of limitations was a good bar to the declaration. In the Exchequer Chamber. Before the Right Honorable Sir N. C. TINDAL, [ERROR FROM THE QUEEN'S BENCH.] CONSPIRACY-INDICTMENT-AVERMENT. this even though it appeared on the face of KING and others, v. REGINAM.-14th June, 1845. the declaration and original writ, which used formerly to be entered on it, that the cause of action had accrued more than six years before action brought. There are, it is true, some old cases to the contrary, but they are not law at this day. Neither is the case of Hollis v. Palmer in point, for the declaration here is simplicitur a statement of an alleged cause of action reduced by part payment. Suppose a declaration on a promissory note to pay 4001. by instalments of 1007. each, at successive periods of three months, and the plaintiff were to allege, that, although the defendant paid the first and second instalments, he did not pay the third and fourth, would the defendant be entitled to plead that he did not pay the first and second instalments? I cannot distinguish the present case from that. ALDERSON, B.-Surely this question is not arguable. If a man choose to put the first verse of "Paradise Lost" into his declaration, is the defendant entitled to traverse it? It is said, he may traverse any substantial allegation, but by this must be understood some averment necessary to the maintenance of the action. Now, apply that test here-how can it be said to be material, when a man goes for the residue of a demand, to deny that he was paid the former part? This declaration would be good, although the allegation of part pay ment were struck out of it. ROLFE, B.-In the case of Hollis v. Palmer, which has been relied on, there were two pleas: first, the statute of limitations, to which there was a demurrer; and, secondly, a plea An indictment charged, that defendants conspired to cheat and defraud certain of her Majesty's subjects, being tradesmen, of divers large quantities of their goods and chattels; and that defendant, E. A. B., did, in pursuance of the said conspiracy, fraudulently order and obtain upon credit from W. A. W., and C. W., upholsterers in L., divers goods of great value, to wit, &c., of and belonging to the said W. A. W. and C. W., &c., and from divers other tradesmen, whose names are to the jurors unknown, divers other goods of great value, to wit, &c., of and belonging to the said last mentioned persons respectively; and, in further pursuance of the said conspiracy, and in order that the said goods might be taken in execution and sold, order and direct that the said goods should be delivered by the said tradesmen at the house of the said defendant; and that said goods were so delivered; and that no payment, remuneration, or satisfaction, for the said goods, was made by said defendants. Averment of proceedings, by which, in further pursuance of the said conspiracy, the said goods were taken in execution, at the suit of some of the defendants, in order to satisfy fictitious debts, alleged to be due from defendant, E. A. B., to the other defendants:-HELD, first, that the statement of the conspiracy was defective for not setting out the names, or designating the class, of the persons intended to be defrauded; secondly, that such defect was not aided by the allegation of the overt acts. INDICTMENT for a conspiracy. On the trial before Williams, J., at the sittings at Westminster after Hilary term, 1844, the defendants below were convicted on the first count of the indictment, and judgment was pronounced by the learned judge, in pursuance of Stat. 11, Geo. 4, and 1 Will. 4, c. 70, §9. The judgment as entered on the postea, was as follows:-"And thereupon, to wit, at the same sittings of Nisi Prius, according to the In the Exchequer Chamber.-King et al v. Reginam. form of the statute in that case made and when the class came into existence, it would provided, the said Sir John Williams, knight, be known. Pollock, C. B.-In an indict the said justice so assigned as aforesaid, did ment with reference to a crowd of persons, it pronounce judgment, and did order and ad- is not necessary to say of them that they judge," &c. In the following Easter term, were to the jurors unknown, because no one the Court of Queen's Bench discharged a can tell their names. Parke, B.-In an inrule which had been obtained for amending dictment tried before me, which charged an the judgment by arresting it. A writ of er- intention to cheat A., B. and C., the evidence ror was brought thereupon, and the following was of an intention to cheat any persons the errors assigned:-That the first count of the defendants should deal with; and I directed indictment does not contain or show any such an acquittal, thinking it evidence of a differconspiracy as by the laws and statutes of this ent charge from that contained in the indictrealm amounts to an indictable offence; that ment; and no application was made for a new the first count does not contain any misde- trial. If the intention here was to cheat cermeanor or offence which, by the laws and tain individuals, they ought to be named, or statutes of this realm, is punishable by in- some excuse given for not naming them. If dictment; that the alleged conspiracy is not the persons were to be afterwards designated, set forth with sufficient certainty; that it is it ought to have been so stated. Alderson, alleged, in the said first count, that the de- B.-The class may be distinguished as in fendants did conspire to cheat and defraud Reg. v. Peck, 9 Adol. & Ell. 686, as that they certain liege subjects of our lady the queen, were persons resident in London or Westminbeing tradesmen, of divers large quantities ster, though the individuals cannot be named. of their goods and chattels, and yet the said But the question here is, whether the count certain liege subjects are neither named in would not be proved by evidence of a conspithe said count, nor is it therein averred that racy to cheat persons at Liverpool.] It might the names of the said certain liege subjects be proved by evidence of a conspiracy to are unknown to the jurors who found the said cheat persons in any part of the British doindictment; that the record fails to show the minions, however remote. O'Connell v. Rejudgment pronounced against the defendants ginam, 11 Cl. & Fin..155, 233; R. v. Bliss, at the sittings at Nisi Prius, on the said re-S C. & P. 773; Williams v. Bryant, 5 Mee. cord specified to be a valid and legal judgment. & W. 147. [Pollock, C. B.-Where a parThe third and fourth points relied upon by ticular person is pointed out, it must be stated the plaintiffs in error were, That the said either that the name is not known or that he judgment of imprisonment, (such imprisonment being to commence on the day on which the plaintiffs in error should respectively be taken to, and confined in prison, and neither of the plaintiffs in error appearing to have been present when judgment was pronounced,) is an illegal judgment. That the record fails to show that the said justice had authority to pronounce judgment when and where he is alleged to have pronounced it, and also fails to show that the same judgment was duly, and, as the law requires, considered by the said justice who pronounced the same. had no name, as in the case of a person not baptized. Alderson, B.-The reason of that rule is, that the party accused may, with reasonable certainty, know whereof he is accused. In a crown case reserved, on an indictment tried before Coleridge, J., for concealing the birth of an illegitimate child, describing it as lately delivered, we held that the description conveyed sufficient information to the party charged. Creswell, J.-There was no presumption in that case that the child had a name.] In Reg. v. Parker, 3 Q. B. Rep. 292; 2 G. & D. 709, there was no sufficient statement of an offence. [Creswell, J.-In that Pashley, for the plaintiffs in error, (the de- case, the owner of the goods not being named, fendants below.) First, the first count of the the parties charged might have been endeavindictment is bad. An omission of the name oring to get their own goods by false pretenis allowed only where there is an impossibility ces.] [As to the mode in which the overt acts to name the party. Poulterers' case, 9 Co. were stated, the learned judge cited Stark. Cr. 55 b.; R. v. De Berenger, 3 M. & S. 67. Pl. 188, and Arch. Cr. Pl. 716, commenting [Alderson, B.-In the latter case, the aver-upon R. v. Turner, 13 East. 228.] Here ment was of an intent to injure a class of per- there is nothing from which it can be inferred sons, viz., those who should purchase any that the parties intended to be defrauded were share in the public funds on a particular day; the parties from whom the goods were ob In the Exchequer Chamber.-King et al v. Reginam. tained. He cited R. v. Eccles., note (a) to the conspiracy charged is an agreement to go Wansmore v. Greenbank, Willes 583; 13 about defrauding tradesmen, by practising East. 230, n. (d.); 1 Leach C. C. 274, 4th ed.; upon them, where some of them happen to be R. v. Henrick, 5 Q. B. Rep. 49; 7 Jur. 484; acting in confederacy with the others. [Maule, R. v. Fowle, 4 C. & P. 592.] [Pollock, C. J.-It states a conspiracy to defraud "certain B.-It does not appear of what they were to liege subjects;" if it had been one only, would be defrauded, or what species of deception that have been good, without any excuse for was to be practised. If the charge was, as in not naming him?] There might be a conthe case of R. v. Fowle, 4 C. & P. 592, to spiracy to defraud a person not fixed upon cheat and defraud just and lawful creditors, by the conspirators at the time. [Parke, B. that would furnish a clue to the names.] In-If you rely upon the conspiracy, you ought the case of R. v. Biers, 1 Adol. & Ell. 327, to have stated it according to its effect; if the a conspiracy, by false, artful and subtle strata- person was known at the time, the indictment gems and contrivances, as much as in them ought to describe him.] The conspiracy is to lay, to injure, oppress, aggrieve and impover- defraud any person whom they can get an ish, was held bad, though the parties were opportunity of defrauding. [Maule, J.-If named, and the object of the conspiracy. The that is the meaning of the agreement, it ought third point is, that neither of the plaintiffs in to have been so stated.] That is implied: error was present when judgment was pro- it may be read as a conspiracy to defraud nounced. Parke, B.-At common law, sen- tradesmen, viz., such as they are able to prac tence could not be passed unless the defend- tice upon. The allegation states the crime ants were present; but since the statute, with sufficient particularity. R. v. Spragg, which empowers the court to pass sentence in 2 Burr. 930; 1 W. Bl. 209. [Parke, B.— their absence, the imprisonment, where that That case goes upon the ground, that, rejectis the sentence, must date from the time when ing the allegation of the conspiracy, still an the party is taken. Alderson, B.-The stat- indictable offence appears.] The statement ute would be inoperative, and the intention of the conspiracy is aided by the more particof the legislature defeated, if the sentence ular averment of what takes place afterwards. might be suspended over the head of the de- [Creswell, J.-Strike out the overt acts, and fendant at the will of the prosecutor. How suppose evidence is given of a conspiracy to. is he to get into gaol? Pollock, C. B.-The defraud certain tradesmen, A. and B., would defendant may surrender, and so commence that have sustained the indictment as laid? the term of his imprisonment. Parke, B.-It might be that parties come up to London The sheriff is supposed to be a court, hearing and take a house, for the purpose of getting the judgment; and he is bound to execute the goods, without knowing a single tradesman sentence, and take the defendant, if he can be in London. If so, how could the parties infound. Tindal, C. J.-The words in the dicted plead autre fois acquit or autre fois statute are as general as to the fine which convict? The question is, whether, upon an may be imposed. Why is it more satisfac- allegation to defraud A. and B. a conspiracy tory to pass that sentence in the absence of to defraud C. may be proved. Alderson, B. the party? The common-law rule, undoubt--If, by the same statement, you cover two edly, is, that judgment cannot be pronounced different states of facts, upon either of which on an absent man, except in outlawry. Rolfe, the party is indictable, is that convenient cerB.-The words are as clear as possible-tainty? In O'Connell v. Reginam, 11 Cl. "whether present or absent."] A judgment & Fin. 155, there was no statement of an illecommencing in futuro is unknown to the gal act; it was only determined that the word law, except when the party is already under " 'intimidation was not necessarily to be unsentence. R. v. Wilkes, 19 How. St. Tr. derstood in a bad sense. R. v. Biers, 1 Adol. 981, 1132; R. v. Hart and White, 30 How. & Ell. 327, turned mainly upon a misrecital St. Tr. 1324. of the statute. In R. v. De Berenger, 3 M. & S. 67, the indictment does not specify the Cleasby, for the crown. The question is, person; but the allegation must be referred whether there is an allegation of an offence to certain persons to be injured by the conset forth with sufficient certainty. The diffi-spiracy. It would not be advanced by a furculty of proving the offence of conspiracy as ther description of the persons. Secondly, laid, has led to the generality of statement the allegation of the latter part, which states which has been sometimes regretted. Here the overt acts, may be incorporated and read |