126 the words "for the ime being." Meaning of Words "for the Time being." [Вк. II. elaborate and masterly judgment was delivered by Mr. Baron Parke, appears to have settled the much vexed question as to the Meaning of meaning of the words "for the time being" in the 13th sect. of the statute, and as to the class of shareholders primarily liable to execution on a judgment against a public officer. This was an application by the plaintiff, under the 7 Geo. IV. c. 46, s. 13, for permission to issue a scire facias against a Mr. Brooke, who was alleged to have been a member of the Newcastle Joint-stock Banking Company (against the public officer of which company a judgment had been recovered) at the time the contract sued upon was entered into by that company with the plaintiff, and on which judgment had been obtained. Two objections were raised to the issuing of the scire facias; first, that the plaintiff had not taken the proper steps in the first instance, by issuing a scire facias against the proper persons primarily liable; and secondly, that, supposing the plaintiff had done that, then upon the affidavits there was no sufficient case made out for the interference of the Court in granting a scire facias against the party to the contract, because other writs of scire facias had been sued out against other parties, and that it was yet undetermined that the result of them would be fruitless. The first and important question in the case was, what class of persons were meant to be designated by the statute under the description of persons "for the time being." "Now it is a good rule to go by," said the learned Baron, in giving his judgment, “in the interpretation of a statute, to act upon its grammatical construction, unless it leads to some incongruity or manifest absurdity. The words of the clause are, 'execution upon any judgment 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 this Act, whether as plaintiff or defendant, may be issued against any member or members, for the time being, of such corporation or co-partnership.' What is the grammatical construction of the words "for the time being"? Surely they mean for the time being of the act with respect to which it is spoken: this must therefore be an execution against the persons who at the time of the execution were members of the banking company." "It is quite impossible, looking at this Act of Parliament, to say that the legislature meant to restrict the creditor to the common-law liability of the debtor; for the statute really made three other classes of persons liable, besides those who are liable by the common law. It makes, in the first place, those liable, who were parties at the time of the execution; and then, in CH. II.] When Members secondarily liable. When rily, and 127 failure of these, those who were members of such co-partnership at the time the contract or agreement on which such judgment was obtained was entered into. This is the common-law liability; but the statute does not confine the remedy to persons who were partners at that time, for it goes on to extend it to those who became members "at any time before such contract was executed ;” so that, in the case of executory contracts, those are liable who are partners at the time of the execution of the contract, and they were not liable at common law. But, in the next place, it makes those > liable who were members "at the time of the judgment obtained;" and these also are not liable at common law. It is therefore perfectly clear that this statute means to impose some additional liability beyond that which the common law imposed on the members of these co-partnerships."-" If that be the correct view, the effect is to make those who are partners at the time the exe- shareholdcution issues liable; and then, in the event of an execution against ers primathem being unsuccessful, the remedy is to be taken against those who when secondarily were partners at the time of the contract being entered into; then liable. against those who were so at the time of the contract being completed; then against those who were so at the time of the judgment being obtained. It is to be observed that the legislature has let slip one class of persons-whether intentionally or not, I do not know— namely, those who have become partners after the contract was completed, and have ceased to be so before judgment obtained, although they were partners at the time the action was commenced. That case the legislature did not provide for, and these persons are certainly exempt, for there are no words to embrace them. My opinion therefore is, that in this instance the plaintiff, by taking his remedy by issuing writs of scire facias against the existing members of the company-I mean those existing at the time the scire facias was obtained—has pursued the proper course, and that he was not bound to take out any scire facias, and would have been wrong to have taken out any scire facias against those who were partners at the time that the action was commenced (c). "I come therefore to the last question, whether or not the plaintiff has entitled himself to the interference of the Court by the steps which he has taken against those different persons who were members for the time being. Now the affidavits state that there are a great number of persons who were partners in this concern, against whom it would be undoubtedly hopeless to take any proceedings. Seven writs of scire facias have been issued, which promise a result of about 1307. altogether. But then it is said that there are two persons against whom no effectual steps (c) And see ante, judgment of Mr. Justice Maule in Ricketts v. Bowhay, p. 123. 128 When Members secondarily liable. [BK. II. have been taken in order to make them responsible, and against whom proceedings might be taken with effect. Against one a scire facias issued, and it is objected that the present proceeding ought not to be allowed until that writ has come to its determination and been finally disposed of. Now if I am satisfied that that writ would produce no result whatever, or no result worth the expense of proceeding in it, then the pendency of such scire facias is no answer to this application; and I take it that the principle of the case of Field v. M'Kenzie, which was referred to as lately decided in the Court of Common Pleas (d), (in which Wilde C. J. seems to have thought at first that you must issue a scire facias against every individual member for the time being, before you can apply to the Court for its interference against a person who was a member at the time of the contract made, which opinion was overruled by the rest of the Court,)— Enough if who thought it was enough, if they were satisfied, that every reasonable and sonable and proper effort had been made for the purpose of obtaining payment of the debt due to the creditors, by recourse to ment from those who were primarily liable,—is the rule upon which I think I must act in the present case. every rea proper effort made to obtain pay those pri marily liable. The class of sharehold ers prima rily and se liable; and are exempt from lia "I think that in this case the plaintiff has done what the majority of the Court of Common Pleas, and ultimately I believe my Lord Chief Justice Wilde, said was necessary in such a case. A similar rule, I think, was previously laid down in the Court of Queen's Bench (see Eardley v. Law (e) and Harvey v. Scott (ƒ)). The rule is, that all that is requisite in this case is, that a scire facias should issue against an existing member or members, and that there should be a reasonable certainty that all remedies against that class would be ineffectual. I am satisfied of this, and therefore the rule must go." The class of shareholders, therefore, of a banking co-partnership established under the 7 Geo. IV. c. 46, against whom a scire condarily facias, on a judgment obtained against the public officer, must those who first issue, (if the property of the co-partnership be insufficient to pay the debt, and the judgment creditor elect to proceed against the shareholders (g),) is, first, the shareholders for the time being, "that is at the time the execution issues" (h); secondly, (in the event of an execution against them being unsuccessful,) against those who were partners at the time of the contract being entered bility. (d) 16 L. J., C. P. 203; 5 D. & L. (g) See sect. 12 of the statute. (h) Rickets and others v. Bowhay and others, 3 C. B. 889; see ante, judgment of Maule, J., in that case, p. 123; and see judgment of Parke, B., in Bradley v. Eyre, 11 M. & W. 451, CH. II.] 129 facias may first in against any other member for the time time. being the not issue Then as to the manner in which it may and must issue before the second class of shareholders are liable, the case of Fowler and others v. Rickerby and others (k), has decided that the scire facias The scire may issue against "any member for the time being of such co- issue in the partnership" whom the plaintiff may elect, and that he cannot. be stance compelled by plea in abatement to proceed against all the co-partners of the same class equally liable, at the same Lord Chief Justice Tindal, in delivering his judgment in this plaintiff case, may select, said, "Looking at this statute I think that a plea in abatement and need was never contemplated. What is the object of the statute? It against all. gives an authority to those who hold the notes of these banking firms, to bring an action against the public officer of the company alone, and having recovered judgment to issue execution against any member for the time being of such corporation or co-partnership;' giving a much wider range, therefore, than that which is ordinarily given, where you issue execution against those parties who are parties at the time the contract is entered into, no authority being generally given against those who enter into the partnership after the contract is made, which is the subject matter of the action. But where you find in the very next section (s. 14), that the public officer in whose name the suit was prosecuted, and every person against whom execution upon any judgment obtained, shall be issued, 'shall always be reimbursed where it was held the words "for the time being," mean at the time execution is sued out; and see Dodgson v. Scott, 6 D. & L. 39; Ib. 2 Exch. 468. (i) Dodgson v. Scott, 6 D. & L. 39; Ib. 2 Exch. 468. (*) 9 Dowl. P. C. 682. In this case the plaintiffs obtained judgment against one of the public officers for the time being of the Imperial Bank of England, and sought to put in force the said judgment against fifteen share holders by issuing a writ of scire facias K 130 Concurrent Writs of Scire Facias may issue. [BK. II. and fully indemnified for all loss, damages, costs, and charges, without any deduction, which such public officer or person may have incurred by reason of such execution, out of the funds of such corporation, or in failure thereof, by contribution from the other members of such co-partnership,'-that shows that there is a full remedy given to these persons without the others being brought in by a plea in abatement. The object of this act is to allow the judgment creditor when he has obtained judgment, to go singly against any one who is responsible, and who is a member of the corporation at the time, and he cannot be compelled, when he has brought one party before the Court by scire facias, to proceed against all the others. That is, in effect, the plea in abatement being taken away in the or ginal action, it is also virtually taken away on the scire facias." So Mr. Justice Erskine, in the same case, says, "It appears to me, that an action is given against the public officer of the company to relieve the plaintiff from the necessity of joining all the members of the co-partnership on the record; and although under the 13th section, it is necessary to have a scire facias to bring on the record the names of those members of the company whom the plaintiff may select as the objects of his execution, yet it never could have been intended that all those evils should be produced in this stage of the proceedings which it was the object and intention of the legislature to avoid. The Act of Parliament says, that execution may be issued against any member, for the time being, of such company, or against any person who is, or has been a member of the corporation. The object therefore was to give the plaintiff the opportunity of selecting one, two, three, or any number of the members of the company to proceed against." Whether a plaintiff could issue several concurrent writs of scire scire facias facias against members of the same class, was at one time judgment questioned. The case of Fowler v. Rickerby determined that the plaintiff may join any number of shareholders of the same class in his writ of scire facias, and issue execution against any one or more he may select, named in such writ; and if his debt be not satisfied he may then issue a further scire facias against other shareholders to recover his debt. But it was doubted whe ther a plaintiff could issue several concurrent writs of scire facias against different shareholders of the same class. This point was argued in the case of Esdaile and others v. Lund (1), in which case Concurrent writs of on the same can be issued at the same time against different shareholders. (1) 12 M. & W. 607; S. C. 1 D. & L. 565. See also Esdaile v. Trustwell, 17 L. J., N. S., Ex. 294; 2 Ex. Rep. 312, S. C.; in which case a writ of scire facias was issued against a mem ber of a banking co-partnership, on |