106 [ВK. II. CHAPTER II. OF SCIRE FACIAS AGAINST MEMBERS OF JOINT-STOCK COMPANIES. The Rule of Law that the Execution must follow the Judgment, p. 108. Formerly the Mode of proceeding against Shareholders of Public Companies on a Judgment against the Company was by entering a Suggestion on the Record, p. 109. Now held that a Suggestion is only applicable to Collateral Facts affecting the same Parties, pp. 113, 116. The Proceeding against a Shareholder on a Judgment against a Public Company, it is now held, must be by Scire Facias, pp. 113, 146. Scire Facias may issue at once against Members "for the time being," of a Co-partnership, without Leave of the Court, p. 115. Leave of the Court required before Scire Facias can be issued against former Members, pp. 115, 123. Execution may issue against a Public Officer who does not plead that he is not a Member of the Company without any previous Scire Facias, p. 117. Compulsory under 7 Geo. IV. c. 46, to proceed against Public Officer. Individual Members cannot be sued, pp. 118, 146. So in Actions by the Company to sue in his Name, pp. 119, 147. A Public Officer will be presumed to continue such until the Contrary be shown, p. 119. A Public Officer cannot plead his own personal Bankruptcy in bar of an Action against the Company, p. 119. Against what Class of Members a Scire Facias must first issue, p. 120. When Members of Banking Companies primarily and secondarily liable to, and when exempt from the Partnership Debts, pp. 121, 127, 128. A primâ facie Case must be made out to satisfy the Court that a bona fide Attempt has been made to recover the Debt against the existing Shareholders, before a Scire Facias will be allowed to issue against those secondarily liable, pp. 124, 135. Not necessary that it should issue against all the Shareholders primarily liable, pp. 124, 129. Meaning of the Words "for the Time being," p. 126. When Shareholders primarily and when secondarily liable, p. 127. Enough, if every reasonable and proper Effort has been made to obtain Payment from those primarily liable, p. 128. Concurrent Writs of Scire Facias may be issued at the same Time CH. II.] Application of the Writ. on the same Judgment against different Shareholders, p. 130. The Existence of a Collateral Security which might be made available no reason why a Scire Facias should not issue against Members secondarily liable, p. 134. If a Scire Facias be permitted to go against those secondarily liable they are not concluded thereby, but may plead that all Steps have not been taken against those primarily liable, p. 136. A Plaintiff who has issued Execution against Members of a Jointstock Company, must go on with it with reasonable Despatch, p. 136. A Member once shown to be such will be presumed to continue one till he proves the Contrary, p. 137. issue If the Application to the Court to a Scire Facias against Shareholders secondarily liable fail, an amended Application may be made, p. 137. Review of the Cases, p. 137. Proceedings against those secondarily liable on Motion after Notice, p. 138. Form of Scire Facias against Shareholder at the time of the Contract, p. 138. When the Liability of former Co partners ceases, pp. 137, 139. The Scire Facias must state accurately to which Class of Shareholders the Defendant belongs, and must not state him to belong to both, p. 140. The Scire Facias must aver the Debt to be due from the Com pany, p. 141. Decisions in other Cases not Banking Companies, p. 142. If nominal Defendant collusively suffer Judgment by Default, Shareholders should apply to the Court, p. 142. Defendants cannot plead to the Scire Facias any Defence available in the original Action, pp. 142, 145. Omission to obtain the Leave of the Court to issue Scire Facias when required an Irregularity merely, p. 144. Cases of Exception to this Rule, p. 148. Where Judgment has been signed against a Public Officer on a Warrant of Attorney the Court will direct an Issue to try Matters that might have been pleaded, p. 150. Scire Facias a Nullity, when, p. 151. Scire Facias against Shareholder of Joint-stock Company not necessary, when, p. 151. Execution cannot issue against Shareholder under 7 & 8 Vict. c. 110, on Motion without Ten Days' Notice given, p. 152. If Notice insufficient, Application may be renewed, p. 152. Effect of Joint-stock Companies Winding-up Act, p. 153. Summary, p. 154. THE application of the writ of scire facias in the case of jointstock companies in order to render liable the members of such co-partnerships to judgments obtained against such companies and at the same time to enable such members to plead any matter 107 108 Effect of Statutes as to Joint-stock Companies. [Bк. II. in discharge of their liabilities when sued either in their corporate name, or in the name of their public officer, is a branch of the law which the rapid growth and increase of joint-stock companies in recent times, has rendered of considerable importance. By most of the statutes empowering the formation of jointstock companies, power is given to such companies to sue and be sued "in the name of their public officer for the time being" (a), or in their corporate name (6). In any judgment therefore recovered against such a company, the judgment recovered is, according to the record, against the public officer, when the company is suable in his name or against the company in its corporate name, when it is suable as a corporation, as the case may be; and is not on the face of the record against any individual member or shareholder of such company. The execution therefore warranted by such judgment (without a scire facias to make any shareholder a party to the record) is only against the public officer, so far as he may be a member of the company (c) or against the property of the company in its corporate capacity, (unless there be some statutory provision affecting the company to the contrary,) according to the rule of law, that the "execution must follow the judgment" (d), The rule of and the judgment and execution must be consistent with each other, otherwise "there would be judgment against A. and an execution upon it against B." (e) law that the execution must follow the judg ment. In order therefore to warrant an execution against a shareholder of a joint-stock company (not under the provisions of the 7 & 8 Vict. cc. 110 and 113,) against which or against whose public officer a judgment has been obtained, it seems always to have been thought necessary to make such shareholder a party to the record; either by entering a suggestion on the record that he (a) Joint-stock Banking Act, 7 Geo. IV. c. 46, s. 9; Joint-stock Companies Act, 4 & 5 Will. IV. c. 94, s. 3; 1 Vict. c. 73, s. 3; and see ante, book i. ch. i. p. 7, and generally the private statutes of railway and other companies; Wingfield v. Barton, 2 D. N. S. 355; "The Patent Rolling and Compressing Iron Company;" Clowes v. Brettell, 2 D. N. S. 528; S. C., 11 M. & W. 461. (b) 7 & 8 Vict. c. 110, s. 25; 7 & 8 Vict. c. 113, ss. 6, 22, 47; Carden V. The General Cemetery Company, 5 Bing. N. C. 258; 7 Sco. 97. (c) Harwood v. Law, 7 M. & W. 203. (d) Buxton and another v. Mardin, 1 T. R. 80. Per Buller, J., "A special execution cannot be taken out on a general judgment." * * * "The execution must follow the judgment," Penoyer v. Brace, 1 Ld. Raym. 244; 1 Salk. 320; Howard v. Pitt, 1 Show. 403; ante, book ii. ch. i. p. 100. (e) Harwood v. Law, 7 M. & W. 206, per Abinger, C. B. was such shareholder, or by issuing a writ of scire facias against him reciting the judgment, in order to make the record consistent with itself and technically correct. 1C9 the mode of against of sharea holders of public com panies on a against the was by on the re suggestion cord that they were such shareholders. The first prominent case in the books in which this question Formerly was raised, is the case of Bartlett v. Pentland (ƒ), in which it was proceeding held by the Court of King's Bench, that a suggestion by leave the Court ought to be entered on the roll in order to make shareholder of an assurance company liable to a judgment ob- judgment tained against its secretary. In that case a writ of ca. sa. was company sued out against a shareholder of the company, and he was arrest- entering a ed upon it without any suggestion being entered on the roll, and without his being made a party to the record by scire facias ; and the question was raised on motion to set aside this execution on the ground that it was not warranted by the judgment, without its having been first by leave of the Court suggested on the record that the shareholder was a member of that company: and in delivering the judgment of the Court, Lord Tenterden said:"Unless there be such a suggestion, the execution is not warranted by the judgment, for a judgment against A. will not warrant an execution against B. As there must therefore be facts suggested on the record by leave of the Court to warrant a judgment different from that which the Court would in an ordinary case pronounce, so facts must be suggested to warrant an execution against a person not a party to the record." And in the conclusion of the judgment the Court said, "Wherever a person not a party to the record is to be affected by the judgment, or wherever the judgment upon the record is to be such as would not be ordinarily warranted by the previous proceedings on the record, there must be a suggestion made by leave of the Court, in the proper form, so as to afford an opportunity to the party to be affected by it, to demur if he thinks the facts suggested are insufficient in point of law, or to plead if he means to deny them." This decision appears to have been grounded on the cases of Hickman v. Colley (g), Barney v. Tubb (h), and Rex v. Poland (i), (f) 1 B. & Ad. 704. (g) 2 Stra. 1120. In this case a citizen of London suing another out of the jurisdiction and not recovering 40s. he became liable to the costs of the defendant under the 3 Jac. I. c. 15, and the Court gave the defendant leave to suggest the fact on the record as the only way to get his costs. (h) H. Bl. 350. Where the plain- 110 The Banking Copartnerships Act. [BK. II. quoted in the argument, in none of which, however, was a a new party to the record sought to be affected by the judgment, but in all of which some collateral facts affecting the same parties, were suggested in order to warrant costs which would not ordinarily follow the judgment. This distinction was not taken in the case of Bartlett v. Pentland; but in the subsequent case of Bosanquet v. Ransford (k) this point was raised and determined. The case of Bosanquet v. Ransford arose on the construction of the Banking Copartnerships Act, the statute 7 Geo. IV. c. 46, ss. 9, 12 and 13 (7). The 9th section of this Act enables all actions and suits, &c., by or against any banking copartnership established under the provisions of this Act, for recovering any debts, &c., due to or by such co-partnership, to be commenced or instituted and prosecuted in the name of any one of the public officers nominated for the time being of such co-partnership, as the nominal plaintiff or defendant (m). Section 12 enacts, that were to be recovered against a prose. (k) 11 A. & E. 520. (1) Intituled "An Act for the better Regulating of Co-partnerships of certain Bankers in England," &c. (m) The following is the section ;"And be it further enacted, That all actions and suits, and also all petitions to found any commission of bankruptcy against any person or persons who may be at any time indebted to any such co-partnership carrying on business under the provisions of this Act, and all proceedings at law or in equity under any commission of bankruptcy, and all other proceedings at law or in equity to be commenced or instituted for or on behalf of any such co-partnership against any person or persons, bodies politic or corporate, or others, whether members of such co-partnership or otherwise, for recovering any debts or enforcing any claims or demands due to such copartnership, or for any other matter relating to the concerns of such co partnership, shall, and lawfully may, from and after the passing of this Act, be commenced or instituted, and prosecuted in the name of any one of the public officers nominated as aforesaid, for the time being of such co-partnership as the nominal plaintiff or petitioner for and on behalf of such copartnership, and that all actions or suits, and proceedings at law or in equity to be commenced or instituted by any person or persons, bodies politic or corporate, or others, whether members of such co-partnership or otherwise against such co-partnership, shall and lawfully may be commenced, instituted, and prosecuted against any one or more of the public officers nominated as aforesaid for the time being of such co-partnership, as the nominal defendant for and on behalf of such co-partnership," [after a similar provision respecting "all indictments, informations, and prosecutions," the section proceeds,] "and the death, resignation, removal, or any act of such public officer shall not abate or prejudice any such action, suit, indictment, prosecution, information, ог other proceedings commenced against, |