of the making of the several calls thereinafter mentioned, the defendant and others were adventurers and shareholders of and in a certain company of adventurers and shareholders for working certain mines, formed upon the cost-book principle, and called The East Birch Tor Tin Mining Company, and that, by the rules and regulations of the said company before and at the time of the making of the said calls and still in force for and agreed to by the defendant as such adventurer and shareholder and the other adventurers and shareholders therein, authority was and is given to the adventurers present at any general or special general meeting of the adventurers and shareholders of and in the said company, held pursuant to the said rules, to make any call or calls they might think neeessary for working the said mines, upon the said adventurers and shareholders in respect of their several shares therein; and that by the said rules and regulations it was and is further agreed that all calls should be paid into such bank as the committee for the time being appointed pursuant to the said rules for the management of the said company might direct, within fourteen days after such calls should have been made, and that, for the better enforcing payment of any call or calls made pursuant to the said authority, and found to be in arrear, the same should be considered, and was thereby declared to be, a debt or debts due from the shareholders or respective shareholders so in arrear to the purser of the said company, who should have power to recover the *same as a simple-contract debt or debts due to him from such defaulter or respective defaulters, by action at law in any or [*210 either of Her Majesty's superior or inferior courts; and that, upon the hearing or trial of any such action, the production of the register of shareholders in the cost-book, with the minute of the resolution making such call or calls so in arrear should be primâ facie evidence of the defendant in any such action being a shareholder, and of the call or calls being made: and that, in any such action, the defendant should not be at liberty to set up or plead a partnership with the purser as a defence: Averment, that, while the defendant and the said others were such. adventurers and shareholders as aforesaid, and while the said rules were so in force and agreed to, three general or special general meetings of the said adventurers and shareholders were held, at each of which a call of a certain sum of money was duly made by the adventurers present, on the defendant and the other adventurers and shareholders of and in the said company, in respect of each of their shares therein, which said calls were severally thought to be necessary for working the said mines, by the said adventurers present at the said meetings respectively; and that, at the time of the making the said several calls, there was a committee appointed pursuant to the said rules, and that the said committee appointed a bank into which the said moneys were to be paid, and that notice was given to the defendant and the several adventurers for payment of the said moneys, and that the moneys due from the defendant in respect of the said several calls were unpaid and found to be in arrear, and that the plaintiff was the purser of the said company, and that all things had happened and been done necessary to entitle the plaintiff, as such purser, to have the said moneys paid him by the said defendant, and to maintain this action.

*There were also counts for money payable by the defendant to the plaintiff for moneys found to be due from the defendant to

[*211

the plaintiff upon accounts stated between them as such shareholder and purser respectively.

The defendant demurred to the first count. Joinder.

M. Smith, Q. C. (with whom were Tapping and Kingdon), in support of the demurrer.-This is an attempt on the part of the shareholders in a cost-book mine, without the aid of an act of parliament, to appoint a public officer to sue and be sued on their behalf: it is in effect a breach of the principle laid down by the House of Lords in Scott v. Avery, 5 House of Lords Cases 811, that parties cannot by contract oust the courts of their jurisdiction. There is no privity between the plaintiff and the defendant, and no consideration for the alleged promise. The intention was, that the calls should be recoverable. by the individual who might happen to be purser at the time of the making of the call or at the time of bringing the action. In Pigott v. Thompson, 3 Bos. & P. 147, where A: agreed in writing to pay the rent of certain tolls which he had hired, "to the treasurer of the commissioners," -it was held that no action for the rent could be maintained in the name of the treasurer. Lord Alvanley there says: "The manifest intention of the agreement was, that the defendant should pay the money to any person whom the commissioners should choose to make their treasurer for the time being; but by law a debt is not so assignable.” And Chambre, J., adds: "The contract is, to pay the commissioners through the medium of their officer."

The court called on,

*212] Collier, Q. C. (with whom was Prideaux), to support *the declaration. This is a question of vital importance to cost-book mining companies. They cannot have deeds of settlement, for that would be an abandonment of the cost-book principle; and it is impracticable for each company of adventurers to obtain an act of parliament. The only mode by which a recusant shareholder has hitherto been compelled to pay calls has been, by getting a creditor of the company to sue him. This declaration in substance means, that a cost-book company was formed pursuant to certain rules and regulations, that a purser was appointed who by virtue of one of those rules was empowered to sue for calls, that the defendant became a subscriber and thereby assented to the rules, and, amongst others, that the amount of the calls should be a debt due from him to the purser. [WILLES, J.-Does the rule mean the purser at the time of the contract, at the time of the making of the call, at the time of bringing the action, or purser for the time being?] At the time the action is brought. It is said that there is no privity between the plaintiff and defendant, and no consideration moving from the plaintiff. The declaration, however, discloses this consideration,-the defendant becomes a subscriber and thereby agrees to be bound by the rules and regulations in the cost-book; and the plaintiff becomes purser upon the faith of those rules and of the defendant's having by subscribing them agreed that calls shall be recovered from him as a debt due from him to the purser. The question is not as to the adequacy of the consideration, but whether there is not some consideration. By this arrangement, the debt due to the co-adventurers is extinguished. In Chitty on Contracts, 6th edit., pp. 60-62, where the authorities are collected, there seems to be some conflict between the ancient and the more recent

decisions upon the question whether a stranger to a contract may sue upon it and the *opinion of Lord Alvanley in Pigott v. Thomp[*213 son, 3 Bos. & P. 147, is referred to,(a) and also a dictum of Buller, J., in Marchington v. Vernon, 1 Bos. & P. 101, n., to the effect that, "if one person make a promise to another for the benefit of a third, that third may maintain an action upon it." So, in Starkie v. Milne, 1 Rol. Abr. Action sur Case, 32, pl. 13, it is said, "It has been decided, that, if A. give goods to B. of the value of 801., on condition that he pay 207. to C., the latter may sue B. for the 201., for it became a debt to C." It may be said that this is not a promise to the co-adventurers for the benefit of the purser. It would, however, be a good answer to an action at the suit of the co-adventurers.

WILLIAMS, J.-I am of opinion that there must be judgment for the defendant upon this demurrer. In order to get over the difficulty of want of consideration, Mr. Collier puts the case of a man accepting the office of purser, in consideration of the shareholders undertaking to pay their calls to him. It is not necessary, however, to decide that. All that appears here is, that, there being a difficulty in enforcing the payment of calls by the shareholders in cost-book mines, the adventurers, in order to get rid of that difficulty, agree amongst themselves that the amount of calls due from any one of them shall be considered as a debt due to the purser, who shall have power to sue for it,-thus violating the law in two respects, first, by agreeing that one partner may sue his copartner, (b) secondly, by agreeing that an action shall be [*214 brought upon a contract by one who is no party to it, and between whom and the person sued there is no privity. They might as well agree that no plea shall be pleaded except payment. This is neither more nor less than the case of an action brought for a debt due to the company by a person who is a mere servant of the company, and who has no connection whatever with the cause of action in respect of which he is suing. It may be, as Mr. Collier suggests, that the law operates hardly in the case of these companies: but, if it be a hardship, the remedy must be sought at the hands of the legislature; and I know no one so fit to advocate such a measure as the learned counsel who has made the suggestion.(c) CROWDER, J.-I am of the same opinion.

WILLES, J.-I agree with the rest of the court in thinking that this declaration cannot be supported, and for this additional reason, that, if we were to hold that the purser might maintain this action, it would be

(a) "It is not necessary to discuss whether if A. let land to B., in consideration of which the latter promises to pay the rent to C., his executors and administrators, C. may maintain an action on that promise. I have little doubt, however, that the action might be maintained, and that the consideration would be sufficient; though my Brothers seem to think differently upon this point. It appears to me that C. would be only a trustee for A., who might for some reason be desirous that the money should be paid into the hands of C. In case of marriage, it is often necessary to make contracts in this manner, and the personal action is given to the trustee for the benefit of the feme covert."

(b) It did not appear on the trial of Hybart v. Evens, post, 215, whether or not the purser was a subscriber.

(c) M. Smith observed that these cost-book mining companies were not entitled to much sympathy, inasmuch as they had struggled successfully to get themselves excluded from the Joint Stock Companies Act, 7 & 8 Vict. c. 110, the 63d section of which provides "that nothing in this act contained shall extend or be construed to extend to any partnership formed for the working of mines, minerals, and quarries of what nature soever, on the principle commonly called the cost-book principle."

trenching upon the prerogative of the Crown, by making a new species of corporation, a corporation sole for the purpose of bringing actions. Judgment for the defendant.

*Another action which had been brought by the same plaintiff *215] against one Evens, and in which the declaration was the same as that in Hybart v. Parker, was tried before Coleridge, J., at the Bristol Summer Assizes, 1857, when the plaintiff was nonsuited, with liberty to move to enter a verdict for the plaintiff for the sum claimed, on the ground, that, assuming the facts stated in the declaration to be proved, they disclosed evidence of a debt. A rule nisi was accordingly obtained by Collier, Q. C., in Michaelmas Term last, and that rule was ordered to stand over until the demurrer was argued.

David Keane now showed cause, referring to the case of The Feltmakers' Company v. Davis, 1 Bos. & P. 98. Rule discharged.

END OF HILARY VACATION.

CASES

ARGUED AND DECIDED

IN THE

COURT OF COMMON PLEAS,

IN

Easter Cerm,

XXI. VICTORIA. 1858.

The Judges who usually sat in Banc in this Term, were:

WILLIS, MERRY, and SMITH v. DE CASTRO. April 28.

To an action for goods sold and delivered, the defendant pleaded that the causes of action accrued to the plaintiffs against the defendant and A., B., and C., jointly, and not otherwise, and not separately against the defendant, and that the defendant and A., B., and C. were jointly liable to the plaintiffs in respect of the causes of action in the declaration, and not otherwise; and that, after the accruing of the causes of action, and before suit, the plaintiffs by deed released A., B., and C. from the said causes of action, &c. Replication, that the deed in the plea mentioned was a deed of assignment by A., B., and C., of their estate and effects for the benefit of their creditors, and contained words purporting, if considered without reference to any other part of the deed, to release as in the plea pleaded, but that, in another and earlier part of the same deed, it was agreed and declared in the words following, that is to say, "that it shall be lawful for the creditors to execute these presents without prejudice to any mortgage, lien, or security which they may have for their respective debts, or any part thereof, or to any claim against any surety or sureties or any other person or persons who may be liable for the payment thereof;" and that all the creditors who executed the deed, executed the same without prejudice as aforesaid; and so the plaintiffs said that the defendant was not released as in and by the plea supposed :Held, on demurrer, that, taking the plea and replication together, the deed appeared to amount only to a covenant not to sue A., B., and C., and not to a release; and, consequently, that the liability of the defendant,-whether joint only, or joint and several,-was not thereby discharged.

THIS was an action for goods bargained and sold and sold and delivered, for work and materials, money lent, money paid, interest, and money found due upon accounts stated.

*2 ]

*The defendant pleaded,-first, never indebted,-secondly, payment,-thirdly, that the causes of action accrued to the

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