bers of

121

issued, or money borrowed, by such corporations or companies in the qualified mode pointed out by the Act. This liability by the common law would not attach at all to individual members of corporations, and would attach in a different mode from that provided for by the statute to members of companies: for at common law those members only would be liable who were such when the contract was entered into, but by the statute, not only those, but all who became members afterwards, and until the bills, notes, or debts were paid, are made liable. At common law, all When memthe goods of the contracting parties and their persons would be banking coliable to immediate execution; by the statute, the goods of the ships pricompany are liable, and the members for the time being at the secondarily period of the execution IN THE FIRST INSTANCE; and afterwards and when those who were so at the time of the contracts being entered into or from the carried into effect, or when the judgment was obtained thereon. In partnership a proceeding against individuals, they would be liable to simplecontract debts for six years, to specialties for twenty; in the statutory mode of proceeding, the members who have ceased to be such for three years are exempt from debts of every description."

In the case of Rickets and others v. Bowhay, executrix, and others (x), Lord Chief Justice Wilde, in delivering his judgment in the Court of Common Pleas, has placed the same con

(x) 3 Com. Bench Rep. 889. In this case judgment was obtained by the plaintiffs against one of the registered public officers of the Western District Banking Company for Devon and Cornwall, and a scire facias was issued, pursuant to the 7 Geo. IV. c. 46, s. 13, in order to obtain execution against the defendants. A rule was obtained for setting aside the scire facias and all subsequent proceedings. It appeared, from the declaration on the scire facias, that the defendants belonged to the class of shareholders secondarily liable under the 13th sect.. which requires the leave of the Court and notice to the defendants before the writ of scire facias can be issued against them, and the writ had been issued without either such leave or notice. Held, that this issuing of the writ without leave of the Court was an irregularity merely, to be taken

Held,

advantage of by motion, and that it
was waived by pleading over.
also, that the absence of notice of a
proceeding requiring notice is an objec-
tion of substance, and not of mere
form. The declaration varied from
the writ, and was so ambiguous in its
form that it was doubtful in which
class of shareholders the defendants
were placed. The writ stated that
they were members of the co-partner-
ship "at the time of the judgment,"
and "at the time being." The decla-
ration charged the defendants as exe-
cutrix and administrators of deceased
members of the co-partnership, and
not as members of the co-partnership
at all. Held, that this was a species
of fraud on the statute and on the
Court, and the rule was made absolute
for setting aside the scire facias, the
declaration, and all the subsequent
proceedings.

partner

marily and

liable to,

exempt

debts.

122

When Members primarily, and when secondarily liable. [Bк. II. struction upon the 13th section of the Act. That learned judge is reported to have said, "The remedies given by the Act to persons who have contracted with a joint-stock banking company are to be pursued against the public officer. A judgment obtained against him is to enure to the effect of giving a right to have execution against different classes of persons upon different conditions. The 13th section enacts, "that execution upon any judgment in any action obtained against any public officer, for the time being, of any such corporation or co-partnership carrying on the business of banking under the provisions of the Act, whether as plaintiff or defendant, may be issued against any member or members, for the time being, of such corporation or co-partnership; and that, in case any such execution against any member or members, for the time being, of any such corporation or co-partnership shall be ineffectual for obtaining payment and satisfaction of the amount of such judg ment," upon that condition, and in that case, "it shall be lawful for the party or parties so having obtained judgment against such public officer, for the time being, to issue execution against any person or persons who was or were a member or members of such corporation or co-partnership at the time when the contract or contracts, or engagement or engagements, on which such judgment may have been obtained, was or were entered into, or became a member or members at any time before such contracts or engagements were executed," (thus rendering liable persons who would not have been liable at common law,) "or was a member at the time of the judgment obtained," without regard to whether they were partners at the time the contracts were entered into or executed. The clause, having given this extraordinary remedy, then proceeds to enact, that "no such execution as last mentioned shall be issued without leave first granted, on motion in open Court, by the Court in which such judgment shall have been obtained, and when motion shall be made on notice to the person or persons sought to be charged, nor after the expiration of three years next after any such person or persons shall have ceased to be a member or members of such corporation or co-partnership." Under these circumstances, it is obvious that it may not always be very easy to apply to cases arising upon this Act the ordinary rules of law. The legislature has sought to make the remedy co-extensive with the inconvenience intended to be obviated; and accordingly the leave of the Court is, in certain cases, to be obtained before execution can be issued, and notice is to be given to the party sought to be charged. What notice shall be given must, of course, be decided by the Court. When the parties are before it, the Court will

CH. II.]

Leave of the Court, when required.

inquire within which of the three classes, described in the 13th section, the persons against whom execution is prayed fall. Further, the Court is charged with the duty of ascertaining that the execution against members of the first class has been ineffectual before recourse is had to the second and third; that is, that all due means have been taken to obtain satisfaction against the parties primarily liable before execution is allowed to go against those whose liability only arises on their default.

123

In the same case, Mr. Justice Maule, in giving judgment, thus explains this section:-"The statute gives a different mode of proceeding against parties who were members at the time of the contract, or of the judgment, from that which it gives against members for the time being. Where a scire facias issues against one who is a member for the time being, that is, at the time the writ issues, no leave of the Court is necessary; but in the other cases, leave Leave must must first be obtained on motion in open Court, and which motion is to be made on notice to the person sought to be charged."

first be ob

tained on

motion in open Court

after notice

son sought

charged, beon fore a scire facias will be

issue

those se

So, in the Court of Queen's Bench, in the earlier case of Eard- to the perley v. Law, P. O. (y), Mr. Justice Littledale, in delivering judg- to be ment, says, "The statute 7 Geo. IV. c. 46, s. 13, says, that judgment being obtained against the registered officer of a com- allowed to pany within the Act, execution shall issue against any member or against members for the time being. It is not considered right, in the condarily first instance, that persons formerly partners, but who have left liable. the company, should continue always liable. But they are not wholly discharged: for if the debt cannot be levied on those who remain members, the former members may be subjected to execution by leave of the Court on motion, which motion, it is now settled, in the case of persons not parties to the record, must be for a scire facias. To ground such an application against those parties, it

(y) 12 Ad. & E. 802. This was an action brought by the plaintiff against the defendant, as the public officer of the Imperial Bank of England, to recover the amount of deposits made by him in the bank. The defendant suffered judgment by default, and execution was issued against him, to which there was a return of nulla bona. Without taking further steps against any of the shareholders "for the time being," (there being 131 members of the co-partnership, several of them solvent,) a motion was made for a rule to

show cause why a scire facias on the
judgment should not issue against two
former shareholders of the company :
and it was held, that sufficient ground
was not shown for a scire facias against
former members; that, before the
Court will allow it to issue, a plaintiff
must show that he has made substan-
tial and bona fide endeavours to obtain
an available execution against the pre-
sent members; and the Court will de-
cide on the motion whether sufficient
diligence has been used in the par-
ticular case.

124

be shown

taken

Scire Facias need not issue against all

[BK. II. And it must must be shown that proper proceedings have been taken against some that proper who are actually members. Here no step has been taken but proceedings have been against the registered officer, who was insolvent ; and, as to him, it is not shown that any previous inquiry was made: the sheriff's return of nulla bona is considered sufficient. I do not say that it is necessary to proceed to execution against all the continuing members; but enough has not been done here; and the rule must therefore be discharged."

against the

members primarily liable, be

fore a scire

facias will be allowed

to go against those members who

are only liable on their default.

Not ne

cessary that

scire facias

should issue

against all

the members primarily liable.

In the subsequent case of Harvey, P. O. v. Scott, P. O. (z), in İ the same Court, it was held to be enough in order to obtain a scire facias against former members of a banking copartnership, under stat. 7 Geo. IV. c. 46, ss. 12 and 13, to show that executions after writs of scire facias have been issued against several of the existing partners at the time of issuing the writ, that nulla bona had been returned, and that after reasonable inquiry had been made as to the solvency of all, there was, on such inquiry, ground for believing that execution would not be effectual against any; and that on this last point a prima facie case was sufficient.

In the case of Field v. M'Kenzie (a), in the C. P., which was decided about the same period, it was held, Wilde, C. J., dubitante, where execution had been issued against several existing members of a banking co-partnership established under the 7 Geo. IV. c. 46, and no satisfaction had been obtained, and grounds were shown for believing that none of the existing members were solvent, that a scire facias might issue against persons who were members at the time of the contract being made, although execution had not been issued against all the existing members. In delivering the judgment of the Court, Wilde, C. J., is reported to have said (b), "The majority of the Court are of opinion that this rule should be made absolute for a scire facias. For my own part, I must confess I have considerable doubt; but I entertain too much respect for my learned brothers not to distrust my own individual judgment when opposed by their united and deliberate opinion. And, as it is important for many reasons that the parties should not be delayed, I concur in thinking that the scire facias should issue." After referring to a preliminary point, his Lordship proceeded: "The next question is, whether the plaintiff has duly observed all the requisites of the statute, and brought before the Court the necessary materials to satisfy it that reasonable diligence has been used by him to work out satisfaction of the judgment against the members of the (z) 11 Q. B. 92.

(a) 4 C. B. 705; and 5 D. & L.

172.

(b) 4 C. B. 720.

CH. II.] Primarily liable before Residue of Members liable.
co-partnership for the time being. It appares that he has issued
several writs of fieri facias, which have been returned nulla bona;
and this is fortified by the affidavit of the attorney, who swears
that he received instructions from the plaintiff to take proceed-
ings against all the members for the time being of the said co-
partnership from whom it was probable that any part of the debt
and costs could be obtained, without favour or partiality, and that
to the best of his judgment and ability he had followed such in-
structions. The first question is, whether it is necessary, in order
to give the plaintiff a locus standi, to issue writs of fieri facias
against all the members for the time being; (and I do not appre-
hend that there can be much difference between issuing execution
against one only and issuing it against any number of members
short of the whole,) or whether it is enough to do as the plaintiff
has here done. I own I have considerable doubt whether the
plaintiff is shown to have done enough. The rest of the Court,
however, think that sufficient has been done to bring the parties
before the Court.

"The next question is, do the facts which are presented to the Court upon the affidavits warrant the belief that the plaintiff has done all he could reasonably be expected to do to work out satisfaction of his judgment against the parties made primarily liable by the statute? The names of all the several parties are given, with the exception of two. As to some, it is shown that writs of fieri facias have been issued without producing any fruits. As to others, their situation in life is deposed to, with the grounds upon which the deponent rests his belief that any proceeding against them must prove futile. No affidavit is offered in answer, nor is it suggested in answer to this rule--and the fact is much, and very properly, relied on by the counsel who supported the rule-that there is any one individual of the first class from whom there was any reasonable grounds for expecting to obtain satisfaction. That being so, the Court think the plaintiff is entitled to issue his writ of scire facias.

"This is a very important part of the case, inasmuch as the opinion of the Court is in all probability conclusive on the parties, as to whether or not due means have been taken to obtain satisfaction of the judgment from the members for the time being. Bearing that in mind, the Court, after a careful consideration of all the facts, have come to the conclusion I have already stated."

The case of Dodgson, P. O. v. Scott, P. O. (c), in which a most (c) 2 Exch. Rep. 457; 6 D. & L. 27, S. C.

125