1851. THE KILKENNY AND GREAT SOUTHERN AND THIS was a rule calling on the plaintiffs to shew cause why the proceedings in this action should not be stayed until they should give security for costs. c. The affidavits on which the rule was obtained stated, that the action was brought to recover the amount of certain calls made on the defendant's testator in his lifetime, in respect of shares held by him in the Kilkenny and Great Southern and Western Railway Company: that the Company was incorporated by the 9 & 10 Vict. ccclx. "For the purpose of making a Railway from Kilkenny in Ireland, to join the Great Southern and Western Railway at or near Cuddagh in Ireland;" and that the property and effects of the Company were (if any) wholly out of the jurisdiction of the Court. The plaintiffs' affidavits stated, that the office of the Company was in Delahay-street, Westminster, where the business of the Company was transacted and their register and books kept; that there was no property or effects of the Company in Ireland, or elsewhere out of the jurisdiction of the Court, but that all the property and effects of the Company were in England, and within the jurisdiction of the Court; that the capital of the Company was divided into 11,250 shares of 201. each, which were held by 276 shareholders; that at least four-fifths of the shareholders were permanently resident in England; that none of the shareholders, except three, had paid up more than 21. 10s. per share; and that the said four-fifths of the shareholders were responsible to the extent of their capital not paid up, and that several had property and effects in England more than sufficient to pay the amount of their capital. A similar application VOL. VI. G EXCH. Jan. 25. A foreign railway Company is bound to give security for costs, not withstanding it has personal property in some of its England, and shareholders reside in England, who are responsible to the extent of their unpaid capital. 1851. KILKENNY AND ERN AND WESTERN RAILWAY CO. v. FLILDEN. to the present had been made to Platt, B., at Chambers; but he refused to make an order. Watson and Willes shewed cause (a).-The plaintiffs cannot, under the circumstances, be considered a foreign corporation. If, indeed, the Company was strictly a corporation, the members of which were not individually liable, the fact of some of its shareholders being resident in England would probably be no answer to this application: The Limerick and Waterford Railway Company v. Fraser (b). But the action is substantially brought by certain individuals residing in this country, who are united in partnership for the purpose of constructing a railway in Ireland, and who are subject to the provisions of the Companies Clauses Consolidation Act, 8 & 9 Vict. c. 16; by the 36th section of which execution may, by leave of the Court, issue against them to the extent of their shares not then paid up. The case falls within the principle of the decisions, that, where one of several plaintiffs resides in this country, though the others are abroad, security for costs will not be required: Arch. Prac. 1230, 8th ed. In M'Connell v. Johnston (c), the Court of Queen's Bench refused to require security for costs, though one plaintiff (a) Watson took a preliminary objection to the Court's entertaining the application, inasmuch as it had been heard and disposed of by Platt, B., at Chambers. He cited Tadman v. Wood, (4 A. & E. 1011); and Lane v. Newman, (1 Bail C. C. 93). The Court referred to Gibbons v. Spalding, (11 M. & W. 173); and Pike v. Davis, (6 M. & W. 546), and said that the principle on which they proceed is, that, in all cases where a judge at Chambers acts as a de puty of the Court, that is, disposes of applications which, but for the press of business, would be disposed of by the Court itself, the Court will review his decision; but that it was otherwise where the Judge at Chambers had an independent jurisdiction. See also Graham v. Connell, 1 L. M. & P. 438; Robinson v. Burbidge, 1 L. M. & P. 94. (b) 4 Bing. 394; 1 M. & P. 23. (c) 1 East, 431. 1851. GREAT SOUTH ERN AND WESTERN RAILWAY CO. V. FEILDEN. was a foreigner residing abroad, and the other a bankrupt in execution for debt. The practice, as there laid down, KILKENNY AND was followed by the Court of Common Pleas in the case of Orr v. Bowles (a), and by the Court of Exchequer in an anonymous case (b). However small the defendants' chance of working out the remedy provided by the legislature, still, as a remedy exists, the Court will not compel the plaintiffs to give security for costs. [Parke, B. The Court will not allow execution to issue against the shareholders, unless it is satisfied that due diligence has been used to obtain satisfaction from the corporate property in Ireland: Devereux v. The Kilkenny &c. Railway Company (c), Hutchings v. The Kilkenny &c. Railway Company (d). It is said that the Company has no property in Ireland; but are we to assume that the same. state of things will exist up to the time when the defendants may have judgment for their costs?] Execution, under the 36th section, must mean an execution upon a judgment obtained in this country, because the section speaks of an application to the Court in which the action shall have been brought. J. A. Russell in support of the rule.-The Edinburgh and Leith Railway Company v. Dawson (e) expressly decided, that a foreign Company must give security for costs, even though they have in this country money and Exchequer bills, which may now be taken in execution under the 1 & 2 Vict. c. 110. So that before the passing of the 8 & 9 Vict. c. 16, the defendants would have been clearly entitled to security for costs. Has, then, the 36th section of that Act placed them in a worse position? The section is headed, "And with respect to the remedies of creditors of (a) 1 Hodges, 23 (b) 2 C. & J. 88. (d) 1 L. M. & P. 712. (e) Ante, Vol. 5, p. 834. 1851. KILKENNY AND ERN AND WESTERN RAILWAY CO. v. FEILDEN. the Company against the shareholders;" and that would seem to confine it to cases in which judgment has been GREAT SOUTH- obtained against the Company by a creditor who has sued them. But even if capable of a wider construction, the Court will not extend its operation so as to give it an effect which is injurious, not remedial. If the plaintiffs' view be correct, the defendants, instead of obtaining security in the first instance, would have to pursue a doubtful remedy against the shareholders. They must satisfy the Court that the Company has no available property, and that the persons whom they seek to render liable are shareholders. The Court ought not to deprive a party of a clear and certain remedy, merely because he has another remedy of some kind under a doubtful Act of Parliament. POLLOCK, C. B.—We are all of opinion that the rule ought to be absolute. It is desirable, as far as possible, that the rules of practice should be simple and uniform; although, from the various questions which arise out of the fluctuating transactions of life, and the continual changes in the law by Parliament, it becomes difficult to preserve the simplicity and certainty desirable. On the present occasion, however, there is one clear rule, namely, that persons out of the jurisdiction, whether individuals or a corporation, suing in the Courts here, must give security for costs, unless they have real property in this country, or at least property of a permanent nature, for personal property is insufficient. Then, is this Company a foreign corporation? I think it is. It is proposed to answer the application, by saying that there are shareholders resident in England who would be liable to costs, since they have not paid up the full amount of their calls. It is, however, by no means certain in what way they may be rendered liable: whether, if there be no effects in Ireland, the parties might be proceeded against at once in this country; or whether it would be necessary to sue the KILKENNY AND ERN AND WESTERN RAILWAY CO. v. FEILDEN. Company in Ireland, for the purpose of ascertaining whether 1851. or no they have any effects there. The very circumstance of the construction of this Act of Parliament being doubt- GREAT SOUTHful, is sufficient, in my judgment, to induce us to say that, by the general practice of the Court, security for costs is required; and that, if an exception is to be introduced, it must be perfectly clear, and capable of easy application. My present impression is, to construe the Act of Parliament as adverse to what is urged being any answer to the application. I think that the defendants could not proceed against the shareholders in England without first endeavouring to make the judgment available in Ireland. But if proceedings are taken against those who are security for costs, the defendants have only to prove the amount of costs; whereas, if the shareholders are to be considered in the light of sureties, as against them the defendants must prove that they are shareholders, of which the return to the Stamp Office is only primâ facie evidence; and it is open to the parties whose names appear, to shew that there is some mistake, and that in point of fact they are not shareholders. It appears to me far better to abide by the general rule; and that if any exception is to be engrafted on it, it must be free from doubt. PARKE, B.—I am of the same opinion. We must begin by considering this Company as an Irish corporation, and on the same footing as an individual resident in Ireland. For that, the case of The Limerick and Waterford Railway Company v. Fraser is an authority. Then comes the question, whether we can refuse to compel an Irish corporation to give security for costs, because some of its shareholders reside in this country, from whom the defendants may by possibility obtain their costs. The cases establish that, in order to prevent the operation of the general rule, it is not enough to shew that, at the time of the application, the plaintiff has personal property in this country |