1867. The ORIENTAL BANK V. The QUEEN. to which that Statute would not apply? By so doing the Court might be placing the Crown in a difficulty in which the Crown would have not placed itself, for this CORPORATION proceeding cannot be taken without the leave of the Crown. The 7th section does not give the Court the power to make the amendment here asked for. The word "amendment" in that section only applies to the amendment of proceedings subsequent to the petition. The 3rd section specifies the time within which the Crown is to plead, but contains no provision as to pleading to an amended petition. If an amendment of the petition had been contemplated, there would have been such a provision. [Stephen, C. J., referred to the 6th and 7th sections]. Any statute touching the prerogative must be strictly construed. No injury is done to the suppliant, for, if his claim be good, he may abandon this petition and ask Crown to consent to another. Darley contra. The Court has jurisdiction to amend. It is necessary to see the nature of the amendment asked for, because the Court may not have the power in all cases. The suppliant does not ask to introduce a new cause of action, but to shape the same cause of action in another way. By Rule 2 of Trin. Term, 1853, the Judge or Court may allow several counts on the same cause of action. It is clear from the purview of the 24 Vic., No. 27, that its object is to assimilate the proceedings in this class of actions, as nearly as may be, to the course of practice and procedure now in force in actions between subject and subject. The 7th section applies the practice of the Court to these petitions, and expressly gives a power of amendment. The meaning of the fiat is, let right be done upon the subject matter disclosed in the petition. Here the subject matter is a delivery of goods to carriers for hire, and a failure by them to carry. [Stephen, C. J. The fiat means, let justice be done as to the cause of action]. The 5th section shows that other persons beside the Crown may be made parties to a suit, and it is submitted that a bill filed against such persons and the 1867. The ORIENTAL BANK V. Crown might be amended. For, by the 9th section, the decree or judgment of the Court shall be, "that the suppliant is or is not entitled either to the whole or to some and what portion of the relief sought by his petition, or CORPORATION such other relief as the Court may think right;" that The QUEEN. is, it is submitted, such other relief as would appear upon an amended bill. The words go beyond a prayer for general relief, and assume a general power of amendment to be vested in the Court. He referred to Tobin v. Reg. (a). STEPHEN, C. J. The case is not altogether clear to my mind. A doubt has been suggested by the 7th section of the Claims against the Crown Act. For it would seem from that section that a certain power of amendment exists, but one qualified by the words, "so far as the same may be applicable, and except so far as may be inconsistent with this Act." A suppliant may petition in respect of certain alleged claims against the Crown; as in this case the claim is two-fold-against the Crown as a common carrier, and also as a gratuitous bailee; and the Crown may have no objection to those claims being tried. But, if this suppliant had stated also in his petition, that the Crown was also liable as a carrier for hire, the Crown might have said that they would not allow that question to be entertained. The petition and declaration must be considered as one document. HARGRAVES, J. I concur. The petition is identified by the earlier sections of the Act as a particular petition in connection with the Governor's fiat. The words "such other relief as the Court may think fit," in the 9th section, mean such other relief as might be given according to the practice in Equity. If a party chooses to bring an action without due consideration, he must bear the consequences. The statute is beneficial to the subject, whose duty it is to consider the nature of (a) 32 L. J. C. P. 216. 1867. The ORIENTAL BANK CORPORATION V. The QUEEN. the evidence in support of his claim before bringing the action. CHEEKE, J., concurred. Application dismissed. STEPHEN, C. J., said, if the Court could grant costs, this was a case in which they would not grant them, as it was clear that, as between subject and subject, the amendment would have been allowed. June 16. September 5. To an action HOGAN against CURTIS (a). for £600, being THE declaration was for money had and received, money had and received, the defendant pleaded that the money had in the defen dant's hands as a stake holder, under an agreement between the plaintiff and one Robertson, and on accounts stated. Plea: That the moneys in the declaration alleged to have been had and received by the defendant to the use been deposited of the plaintiff, and the moneys alleged to be due from by the plaintiff the plaintiff to the defendant upon accounts stated between them, are the same moneys; and that the same were deposited by the plaintiff in the hands of the defendant, as stakeholder, under a certain agreement entered into between the plaintiff and one Alexander William Robertson, by which said agreement the plaintiff backed his brown gelding "The Fool" to trot against a horse of the said Robertson's, called "Sir William Don," optional saddles or harness, the plaintiff staking £800 against the said Robertson's £1000, three miles over Randwick course, on the 1st of January, 1867; the said Robertson at the time of the said agreement staking £250 against the plaintiff's £200, further like sums to tingent on the be deposited in the hands of the defendant, as stake to abide the event of a race to be run between two horses, owned by them respectively, Robertson depositing a still larger sum with the defendant con same event the total on both sides being £1800; and it was also agreed that the balance of their stakes should be similarly deposited on a stated day; and that all deposits should be forfeited by either party failing to comply with that provision, or with any other portion of the contract. The plea then alleged that the plaintiff failed to make the Ĵast deposit, and refused to run the race, in consequence of which the defendant paid over to Robertson the moneys previously deposited, in pursuance of the clause as to forfeiture. Replication, that whilst the defendant held the deposit. the plaintiff repudiated the wager, and required the return of his stakes. A second replication also added that the repudiation took place before the plaintiff failed to comply with any of the terms of the agreement. Held, on demurrer, that the plea was good, and the replications were bad. (a) Before Stephen, C. J., Hargrave, J., and Faucett, J. holder, on the 20th of October then next ensuing, and on the 17th of November following, and the balance on the evening before the said race, at Tattersall's, all deposits to be forfeited by the party failing to comply with any of the provisions of the said agreement; the weight to be carried, either in saddle or in harness, not to be under nine stone seven pounds. Averment that the moneys in the declaration mentioned, having been so as aforesaid deposited with the defendant, as stakeholder, in accordance with the said agreement, became forfeited by the plaintiff by reason of his failing to comply with the terms of the said agreement in this, that he, the plaintiff, did not, on the evening before the race, or at any time, deposit the said balance; and further, that he refused to trot his horse, as therein stipulated, and that after the said moneys became so forfeited, the defendant. paid over the same to the said Robertson; and that, save as aforesaid, the said moneys were not had and received by him (the defendant) to the use of the plaintiff; and that, save as aforesaid, there never was any value or consideration for the said money alleged to be due from the defendant to the plaintiff upon accounts stated between them. Demurrer and joinder. Replication (1), that whilst the defendant held the said deposits, the plaintiff repudiated the said wager, and required the defendant to return to the plaintiff his said deposits, being the money now sought to be recovered; (2), that whilst the defendant held the said deposits, and before the plaintiff failed to comply with any of the terms of the said agreement, the plaintiff repudiated the said wager, and required the defendant to return to the plaintiff his said deposits, being the money now sought to be recovered. Demurrer and joinder. The Attorney-General (Stephen with him) in support of the replications and the demurrer to the pleas. The plea is bad; it does not negative notice to the defendant by the plaintiff of the repudiation of the wager, or a 1867. HOGAN V. CURTIS. 1867. HOGAN V. CURTIS. demand by the,plaintiff of the stakes before the same were paid over. Under the circumstances alleged in the plea, the defendant was not entitled to pay over the stakes to Robertson. This was an illegal contract. It was in all respects a wager, and is not within the exception of the 8th section of the 14th Vic., No. 9 (which is the same as the 18th section of the 8 and 9 Vic., c. 108). There is no difference in substance, because there is here a clause of forfeiture. The whole agreement was illegal. Varney v. Hickman (a) is a distinct authority that by the 8th section of our Act, 14 Vic., No. 9, a party who repudiates a wager before the event is ascertained, is not precluded from recovering back from the stakeholder the amount of his deposit. In the course of the argument, Maule, J., says, "Under the 3 and 4 W. IV., c. 42, s. 39, the authority of an arbitrator might be revoked at any time before the making the award." In Martin v. Hewson (b), to an action for money had and received, the defendant pleaded that the money had been deposited by the plaintiff in the defendant's hands, as stakeholder, to abide the event of an illegal game, on which event the money had been wagered by the plaintiff. The plea was held bad, for not alleging that the wager had been determined; and a replication, that before the result of the wager was ascertained the plaintiff repudiated the wager, and required the defendant to repay the money to him, was held good. In that case Parke, B., says, "According to the context, the statute prohibits the recovery of money which has been won in such a transaction, or has been deposited to abide the event of a wager, but it does not apply to the case where a party seeks to recover his stake upon a repudiation of the wagering contract." The most recent case reported upon this point is M'Elwaine v. Mercer (c), and that is distinctly in the plaintiff's favour. There A. and B. deposited with C. £50 each, to abide the event of a horse race. After the race had been won, A. claimed to be the winner, and as such, demanded the entire amount of the stakes from C., and upon his (a) 5 C. B. 271. (b) 10 Exch. 737. (e) 9 Ir. C. L. R. 13. |