tody, on the ground that in the copy of the capias the Exch. of Pleas, direction appeared to be to the sheriff of "Middesex." Cleasby shewed cause against the rule in the first instance; and also applied for a cross rule to shew cause why the writ of capias should not be amended, by substituting thereon the sum of £422 instead of 4221. 13s. 4d. He urged that the Courts had always acted on the principle of allowing amendments in writs, where the justice of the case requires them, and where no injury is done to any party. In Laroche v. Wasbrough (a), which was an application to amend a writ, Lord Kenyon said, "The justice of the case requires that we should permit the plaintiff to amend. If the defendant had indeed suffered by the excess in the execution, that might have varied the case; but here he has not sustained any damage by it." So here, the defendant can have sustained no damage whatever by being held to bail for the odd shillings and pence beyond the sum directed by the Judge. The Court is expressly empowered, by the 6th section of the act, upon the application of a party by rule or order for his discharge from arrest, to make absolute or discharge such rule or order, or "to make such other order therein as to such Judge or Court shall seem fit." Richards, in reply.-In Trotter v. Bass (b), the Court held that they had no jurisdiction to amend a writ of summons. Such an amendment was indeed allowed in Lakin v. Watson (c), but that was in order to save the Statute of Limitations; and Parke, B., in his judgment, appears to confine such amendments to cases of that nature. [Alderson, B.-The stat. 1 & 2 Vict. c. 110 had not then passed; and therefore the exception could not have been extended (a) 2 T. R. 737. (b) 1 Bing. N. C.516; 1 Scott, 403. (c) 2 C. & M. 685. 1842. PLOCK v. PACHECO. Exch. of Pleas, to a case like the present.] Partridge v. Wallbank (a) is an authority to the same effect. 1842. PLOCK v. PACHECO. Lord ABINGER, C. B.-In this case, as no oppression appears to have been exercised towards the defendant, and as we are empowered, by the 6th section of the act, to make such order in the matter as we shall think fit, under all the circumstances, we think the defendant should pay into Court the sum of £422, and £20 in lieu of bail, with liberty to take out those sums on putting in and perfecting special bail: Mr. Cleasby's rule for amending the writ will be made absolute, and Mr. Richards's rule discharged, the plaintiffs paying the costs of this application. ALDERSON, B.-I agree in opinion that this writ ought to be amended, and think that, in so doing, we are not departing from any principle laid down by this Court in former cases. We have allowed writs to be amended, where justice appeared to require it, and the situation of the parties has not been changed by the amendment, as in the case of the Statute of Limitations. Here the Judge thought the plaintiffs were in danger of losing their debt by the defendant's quitting England in case he were at large; and it seems to me that that circumstance brings the case within the same principle that governed the Courts in regard to the Statute of Limitations. Here, too, we have something by which the writ can be amended. The rules will therefore be disposed of in the manner which has been stated by my Lord Chief Baron; and the plaintiffs will be quite sufficiently punished for their mistake by paying the costs of these applications. GURNEY, B., concurred. (a) 1 M. & W. 316. Rule accordingly. BALL and Others v. GORDON and Others. Exch. of Pleas, 1842. Jan. 24. ASSUMPSIT by indorsees against acceptors of a bill of Declaration by exchange. The declaration stated, that "whereas certain indorsee against acceptor of a bill of exchange persons using the name, style, and firm of M'Leod & Co., stated it to be on the 14th day of July, 1841, made their bill of exchange in writing, and thereby required the defendants to pay, four months after the date thereof, to them the said M'Leod & Co., or order, 1321. Os. 7d. value received, which period has now elapsed; and the defendants accepted the said bill, and the said M'Leod & Co. then indorsed the same to W. J. Strickland, who then indorsed the same to the plaintiffs," &c. Special demurrer, assigning for causes, that the alleged drawers of the bill were not sufficiently described, as they ought to have been described by their christian or names of baptism, and surnames, or by the initial or contraction of their christian or first names, in addition to their surnames; that the description is vague and uncertain and that even if "M'Leod & Co." is a sufficient description, yet it is not alleged that the supposed drawers in fact drew the bill in that name, or by means of such description. Joinder in demurrer. Bovill, in support of the demurrer.-The description of the drawers of the bill in this declaration is not sufficient. The rule of the common law, is that the christian and surnames of all persons mentioned in the pleadings should be accurately set out; Stephen on Pleading, 329 (4th edit.), citing Com. Dig., Abatement (E. 20), (F. 19); Buckley v. Thomas (a), and Rowe v. Roach (b). The authority of this rule is recognized also in Gamly v. Bechinor (c). And the stat. 3 & 4 Will. 4, c. 42, s. 12, has no application to this drawn by "cer tain persons using the name, style, and firm of M. & Co.," and that "the said M. & Co." indorsed it. this was not a Semble, that sufficient desuf scription, as it did not shew that M. & Co. drew or indors ed the bill in that name. (a) Plowd. 128 a. (b) 1 M. & Selw. 304. (c) 2 Lev. 197. 1842. BALL 1. GORDON. Exch. of Pleas, case, because it applies only to parties who are described in written documents by the initial letter or contraction of the christian or first name, which is not the case here. In Reg. v. West (a), where goods the property of the Hull and Selby Railway Company were described in a coroner's inquisition as the property of "The Proprietors of the Hull and Selby Railway," it was held that the inquisition was therefore bad. [Alderson, B.-It is consistent with this declaration, that although the parties used the name of M'Leod & Co., they made the bill in their own proper names.] Then, with respect to the indorsement, it is not even said that the said persons using the name, style, and firm of M'Leod & Co. indorsed, but merely "the said M'Leod & Co." If the plaintiffs do not know the names, there should be an averment to that effect. R. V. Richards, contrà.-The declaration is sufficient. It is in the form constantly used in such a case. In the form given by the rule of Trinity Term, 1 Will. 4, all that is stated is, that "one E. F. made his bill of exchange in writing," &c.; it is not said that he made it in the name of E. F. [Lord Abinger, C. B.-The difficulty is this, that it is possible the persons using the name of M'Leod & Co. may have drawn bills and used a different name or names; so that the defendants may plead to it, supposing it to be drawn in the name of M'Leod & Co., whereas you may prove a bill drawn in another name.] It is certain to a common intent, and must mean that the drawers used that name in the instrument declared on. In Bass v. Clive (b), the declaration was on a bill drawn " by certain persons trading under the name, style, and firm of E. N. & Co.," payable to their own order; and it was held, as against the acceptor, who had accepted the bill so drawn, that it was no variance if it were proved that the firm consisted of one (a) 1 G. & D. 481. (b) 4 M. & Selw. 13. 1842. person only. [Alderson, B.-Would it be sufficient to say Exch. of Pleas, that "a certain person made his bill of exchange," &c.?] It is submitted that it would. THE COURT (a) intimated their opinion that the allegation was not sufficient, and gave Richards leave to amend on payment of costs; otherwise Judgment for the defendants (b). (a) Lord Abinger, C. B., Alderson, B., and Gurney, B. BALL v. GORDON. TIGAR and Another v. GORDON and Others (c). of ASSUMPSIT by indorsees against acceptors of a bill exchange. The declaration stated, "that whereas certain persons, by and under the name, style, and firm of James Gale & Son, on the 18th day of October, 1841, made their bill of exchange in writing, and directed the same to the defendants, and thereby required them to pay to the order of the said persons so using the said name, style, and firm of James Gale & Son, 667. 7s. 11d., for value received, four months after the date thereof, which period had elapsed before the commencement of this suit; and the defendants then accepted the said bill, and the said persons, by and under the said name, style, and firm of James Gale & Son, then indorsed the said bill to the plaintiffs," &c. Special demurrer, assigning for causes, that the drawers and indorsers of the bill are not sufficiently or properly designated or described. Joinder in demurrer. Bovill, in support of the demurrer, relied on Ball v. Gordon (d), and, in addition to the authorities there cited, referred to Rex v. Harrison (e). The only distinction between the case of Ball v. Gordon and the present is, that here it is stated that certain persons, by and under the name, &c., drew (e) Decided at the sittings after Trinity Term, 1842 (June 22). (d) Ante, 345. Declaration by indorsee against acceptor of a bill ofexchange, stated it to be drawn by "certain persons, by and under the firm of G. & Son," and that name, style, and "the said persons, by and under the said name, style, and firm of G. & Son," indorsed it:-Held, on special demurrer, that this was a sufficient description of the drawers and indorsers. |