In re GLATTON to the Treasury. We cannot do that. If we cannot make it the ground of an order to pay back the money which is in the Treasury, LAND-TAX. we ought not to set them aside at all. Whether there is any other remedy it is not for us to decide; we cannot give the remedy as it is asked. GURNEY, B.: It is very clear that these writs are regular, and that the form prescribed by the Act has been strictly adhered to, and therefore they cannot be set aside. If Mr. Margetts was aggrieved by the assessment, he had notice of it, and might have taken any steps he pleased. When the sheriff levied, he had notice, and before the money got into the hands of the Crown, he might have applied to the Court, and the Court would, if it could, have given him relief; but the money has been received-the Crown has received its quota from the parish, and has received no more; and now, if Mr. Margetts were to succeed in getting back the money, the mode in which the Crown must be reimbursed would be by a re-assessment, and in that case injustice would be done to others. Rule discharged. RAMSBOTTOM AND OTHERS v. ROBERT DAVIS. SAME v. GOSDEN. (4 Meeson & Welsby, 584-586; S. C. 8 L. J. (N. S.) Ex. 80; 7 Dowl. P. C. 173.) By a written agreement, three persons bound themselves that in consideration of A.'s discharging a debt due from B. to C., amounting to 2007. with the costs thereupon, each of the three would severally pay 501., and one fourth part of such costs, and give a bond, bill, or note for his own proportion: Held, that the agreement required only one stamp. ASSUMPSIT. The declarations in these actions were upon the following guarantee: "We, the undersigned, Robert Davis, William Goodchild, and George Gosden, severally and respectively undertake, in consideration of Messrs. Ramsbottom's and Legh's discharging, or agreeing to discharge, a certain debt due from William Davis to J. Sheffield, amounting to the sum of 200l., with the costs thereupon, to indemnify the said Messrs. Ramsbottom and Legh for any loss which they may sustain or incur to the extent of 50l. from each of us, to be paid by us severally, together with a fourth part of the costs and expenses as aforesaid, at such time or times as the said Messrs. [579] 1839. Exch. of [584] c. DAVIS. RAMSBOTTOM Ramsbottom and Legh may be called upon to pay the said debt and costs, to be rateably proportioned; and in the meantime we further undertake to make and execute such bills, bonds, or notes severally, for the said respective sums, as may be required by the said Messrs. Ramsbottom and Legh. [ *585 ] At the trial of these causes, at the sittings in this Term, before Gurney, B., the above agreement was produced in evidence, *and appeared to be stamped with one stamp only, on which the counsel for the defendants objected to its being read, contending that it amounted to a several agreement by each of the parties, and consequently that it should have had three stamps. The learned Judge, however, allowed it to be read, and the plaintiffs had a verdict for 50l. in each cause, but leave was given to the defendants to move to enter a nonsuit. W. H. Watson now moved accordingly : One stamp is not sufficient in this case, as this is not the joint contract of the three, but each makes a separate contract; each party makes himself liable to the extent of 501., each agrees to pay one-fourth of the costs, and each undertakes to give a bond, bill, or note severally for his own proportion. It is not like the case of one common fund. (PARKE, B., referred to Bowen v. Ashley (1).) In that case there was but one bond and one penalty, and the payment of that penalty by any one of the obligors was a performance of the bond. (PARKE, B.: This is one transaction; no one of the parties would have agreed to pay his 501. if the others had not contracted to pay theirs. It is like the common case of a composition deed by several creditors, where each agrees to release his debt because the other does, and in those cases one stamp is sufficient.) In those cases there is but one composition, and the covenants only are several, but here there are separate contracts, as in Doe d. Copely v. Day (2), Powell v. Edmunds (3), and Rex v. Reeks (4). (1) 1 Bos. & P. (N. R.) 274. (3) 11 R. R. 316 (12 East, 6). PARKE, B.: I am of opinion that this is only one transaction, and that one stamp only is necessary. Here each of the parties entered into one agreement, by which each bound himself to a certain extent, in consideration that *the others would do the same. It is very similar to the case of Bowen v. Ashley, where it was held, that if several persons bind themselves in a penalty by one bond, conditioned for the performance by each and every of them of the same matter, such bond required only one stamp. There are several cases of the same class, especially those of composition deeds. In Davis v. Williams (1), though the agreement was several as to each subscriber, it was held that it required only one stamp. The same principle governs this case. It is an agreement by each to pay a proportion, which each enters into because the other does. The rule must be refused. ALDERSON and GURNEY, Barons, concurred. RAMSBOTTOM 2. DAVIS. [ *586 ] Rule refused. RUST v. KENNEDY (2). (4 Meeson & Welsby, 586-587; S. C. 8 L. J. (N. S.) Ex. 85; 3 Jur. 198; 7 Dowl. P. C. 199.) Where, in the writ and declaration, in an action not upon a written instrument, the defendant is described by the initials of his name, the only remedy is by summons to amend, under 3 & 4 Will. IV. c. 42, s. 11 (3); and the Court will not set aside the proceedings for irregularity. ARCHBOLD had obtained a rule to show cause why the writ and declaration in this cause should not be set aside for irregularity, on the ground that the defendant was described in the writ served and declaration by his initials only, the action not being brought upon a bill of exchange, or other written instrument. Jardine now showed cause: The remedy here sought is not the remedy pointed out by the statute 3 & 4 Will. IV. c. 42, s. 11. The defendant ought to have applied under that section to have the declaration amended at the costs of the plaintiff, by inserting the Christian name at length, upon a Judge's summons, founded upon an affidavit of the right (1) 13 East, 232. (2) Cited and followed by HANNEN, J., in Reg. v. Plenty (1869) L. R. 4 Q. B. 346, 350, 38 L. J. Q. B. 205, 208.-R. C. (3) Repealed by 46 & 47 Vict. c. 49, s. 4. But see the general power of amendment under R. S. C. Ord. XXVIII. r. 1.-R. C. 1839. Exch. of [586] name. That is the course directed by the statute, and the Court has no power to set aside the proceedings. *In Lindsay v. Wells (1), the COURT refused to do so under similar circumstances, although in that case there had even been an arrest, which makes it much stronger than the present case. Archbold, contrà : This is more than a mere case of misnomer, for the initials are no name at all. Lord ELLENBOROUGH said no man was ever baptized by his initials, as "I. G." The application to amend by summons is therefore not compulsory in this case. The case of Lindsay v. Wells, which has been referred to, must have been upon a bill of exchange (2). PARKE, B.: Formerly, before the stat. 3 & 4 Will. IV. c. 42, s. 11, where the declaration and process corresponded, and the only objection was a 'misnomer, that was a matter pleadable in abatement; but since the passing of that Act, the only remedy is for the party to take out a summons to amend. The case is within the statute, and the rule must therefore be discharged with costs. Rule discharged with costs. 1839. Exch. of DOE D. THOMAS AMLOT AND RACHEL HIS WIFE, (4 Meeson & Welsby, 599-608; S. C. 8 L. J. (N. S.) Ex. 74.) A testator devised his two houses and gardens to his wife during her widowhood; and after the determination of that estate, to the use of all and every of his child or children by his said wife, equally to be divided between them, share and share alike, and the lawful issue of their or her or his bodies or body; and for default of such issue, to the use of his nephew in fee. By a subsequent clause, he devised and bequeathed to his daughter F. the sum of 300l., to be paid when she attained 21, and the house wherein she then lived (one of those before devised), after her mother's decease or marriage; and to his daughter R. the sum of 3007., to be paid when she attained 21, and the house in the occupation of D. (the other of those before devised), after her mother's decease or marriage; and in case of either of his daughters dying without lawful issue before the said (1) 3 Bing. N. C. 777; 4 Scott, 471. (2) It appears from the report in Scott that this was the case; but that the application there was to set aside the declaration, or to amend it under the statute, on the ground that the plaintiff was described by an initial letter only of one of his Christian names and the COURT intimated an opinion that misnomer of a plaintiff was not within the statute. sum or sums were paid, then the share or shares of her or them so dying to be divided amongst the survivors or survivor of them. The testator had no other property but the two houses, and no children except the two daughters, who both survived him and his wife. F. married, had a child which died, and died, leaving her husband, and also her sister R., surviving her: Held, that, on the construction of the whole will, an estate for life was given (subject to the devise to the widow) to each daughter in severalty in one house, with remainder in both to the testator's children as tenants in common in tail; and therefore that R. was entitled, on F.'s death, to recover a moiety of the house devised to F. Semble, that F.'s husband was entitled to the other moiety thereof as tenant by the curtesy, F.'s estate for life therein having merged in her estate tail. EJECTMENT to recover an undivided moiety of a dwelling-house and garden, and premises, situate in the *parish of St. Mary, Cardigan, in the county of Cardigan. On the trial, at the Summer Assizes, 1838, for that county, before Gurney, B., a verdict was found for the plaintiff, subject to the opinion of this Court on the following case: David James, being seised in fee of the house and garden in question, and of another dwelling-house and garden in the occupation of one David Davies, on the 10th of January, 1817, duly made and executed his will so as to pass real estates; the material parts of which were as follows: "I give and devise all that my messuage or dwelling-house and gardens, with the rights, members, and appurtenances thereunto belonging, in the tenure and occupation of David Davies; and also all that other my messuage or dwelling-house, and garden, with the rights, members, and appurtenances, wherein I now reside, and both situate in Pendre, in the town of Cardigan, in the county of Cardigan, unto the Rev. Daniel Davies, of the town of Cardigan aforesaid, and John Mathias, of the same place, malster, and their heirs; to have and to hold the same hereditaments, with their and every of their rights, members, and appurtenances, unto the said Daniel Davies and John Mathias, and their heirs, in trust to and for the several uses, intents, and purposes, and under and subject to the several powers, limitations, and agreements, in this my will mentioned, limited, and declared of and concerning the same, that is to say: upon trust that they the said Daniel Davies and J. Mathias do and shall pay and apply the rents, issues, and profits thereof, and of every part thereof, unto my dear wife Margaret James, yearly and every year during so long a time as she shall remain my widow; and from and after the determination of that estate, to the use and behoof of all and every of my child or children by my said wife Margaret James, equally DoE d. AMLOT V. DAVIES. [ *600 ] |