136 court per mits a scire Must proceed with Execution with reasonable Despatch. [BK. II. been taken against the class of shareholders primarily liable, facias to go though sufficient has been shown to induce the Court to allow against those se- writs of scire facias to issue against the shareholders secondarily condarily liable, they liable, such shareholders can plead that all steps have not been taken against those of the first class (e); and they are not finally may plead bound by the decision of the Court in allowing the scire facias to are not concluded thereby, but that all steps have not been taken against those primarily liable. issue (ƒ). In Dodgson v. Scott (g), this construction was upheld in the Court of Exchequer, Parke, B., holding that "it was enough if the Court were satisfied that every reasonable and proper effort had been made for the purpose of obtaining payment of the debt due to the creditors, by recourse to those who were primarily liable." In the recent case of The Bank of England v. Johnson (h), the decision in Eardley v. Law was upheld (1). It was objected to an application for leave to issue a scire facias against the members of a joint-stock banking company at the time of the contract, under the 7 Geo. IV. c. 46, that the plaintiff had not made out a sufficient case of bona fide efforts to obtain the sum recovered from the members for the time being the class primarily liable—to justify the Court in ordering a scire facias against the class liable in the second degree. It was urged that the Act required the plaintiff to proceed upon his judgment at no particular time: he might wait for many years without losing his remedy, save as against members of the second class, who are not liable after three years from the time of ceasing to be so; and he might then, undoubtedly, proceed against members for the time being, who did not become such until long after the judgment. The Court held, A plaintiff however, "that although the plaintiffs might sue out execution sued execu- when they pleased, whenever they did so they ought to try to members of make it effectual against all the members for the time being. Although the statute did not confine them to one execution, but with it with they might have several against several members, it did not audespatch. thorize them to select one and lie by and then begin again; but if they began their execution they ought to go on with it with reasonable despatch." who has is tion against a joint-stock company must go on reasonable A member once shown to have been a A member of such a co-partnership, once shown to have been a member, will be presumed to continue a member until he is proved (e) Harvey v. Scott, ib. per Erle, J. (f) And see further Field v. M'Kenzie, 16 L. J., N. S., C. P. 206; S. C., 4 C. B. 705; per Wilde, C. J., in delivering the judgment of the Court; ante, p. 124. (g) 2 Exch. 469; and see ante, p.125. (h) 3 Exch. 598; S. C., 6 D. & L. 458. (i) See ante, p. 123. CH. II.] Amended Application for Sci. Fa. may be made. 137 will be pre continue The such till he is proved to to have retired from the co-partnership, and his liability as such member will continue (k). If his liability has ceased for three years (1) he sumed to can plead this as a statutable answer to the scire facias (m). Court will not shorten the time for showing cause against a rule have refor issuing a scire facias, on the ground that the three years the colimited by the statute for proceeding against retired members partnership. might expire before the execution could issue (n). tired from plication to the Court to issue a scire facias against holders se liable fail, application made on The general rule, that a matter cannot be agitated twice, does If the apnot apply to the case of an application to issue a scire facias upon fresh materials (o). The Court of Exchequer in the case cited, holding that “this being an application to the equitable jurisdic- sharetion of the Court to have a remedy against a second class of per- condarily sons, it would be difficult to say that the Court should be so an amended bound up by any rule as that they would not permit a second may be application to be made, or a second scire facias to issue, in case good ground the first had failed; but that in such a case it would be proper that the party applying a second time to the Court for permission to issue a scire facias against members of the class secondarily liable, should lay before it some ground to show why he had failed upon the first, and show some good reason why he should apply to the Court a second time to make the defendant liable to a scire facias." shown. the cases. It would appear, therefore, on a review of the whole of the Review of cases, that the Courts do not require to be satisfied that ALL the shareholders primarily liable shall have been proceeded against before they will allow writs of scire facias to issue against shareholders secondarily liable; but they must be satisfied that a primâ facie case has been made out, that bona fide and continuous attempts have been made to obtain execution against all primarily liable, or that all due and sufficient means have been taken to recover the debt from the parties primarily liable, before they will allow the scire facias to go against the shareholders secondarily liable; and that it is then open to the shareholders secondarily liable to contest their liability, and to plead that all those primarily liable (k) Harvey v. Scott, 11 Q. B. 106, per Denman, C. J.; Prescott v. Buffery, 1 C. B. 41; and see Corder v. Universal Gas Light Company, 6 C. B. 19. (1) I. e., if he has ceased to be a member of the co-partnership three years; sect. 13; ante, p. 112. (m) See post, p. 139; and see Ste ward v. Greaves, 10 M. & W. 720; (n) Field v. M Kenzie, 5 D. & L. (0) Dodgson v. Scott, 2 Exch. 457; S. C., 6 D. & L. 27; and see post, p. 152. 138 Proceedings against Class secondarily liable. [Bк. II. have not been proceeded against, or that they were not members at the time of the contract, or that they have ceased to be members of the co-partnership altogether for more than three years; and that the plaintiff is not bound to proceed against one or all of the members for the time being, but that he may select any member he please, against whom to proceed; and that he may have concurrent writs of execution going on against all at the same time (p). Secondly, the case of Fowler v. Rickerby (q) having decided that a plea in abatement for the nonjoinder of members of such a copartnership proceeded against by scire facias on a judgment obtained against the public officer of the company, would be bad, on failure of obtaining the fruits of the judgment from those members of the co-partnership primarily liable, any member or members of the co-partnership secondarily liable may then be proProceedings ceeded against; but, according to the judgment in Ricketts v. those se- Bowhay (r), leave to issue the scire facias against such selected members "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." The notice to be given, it is presumed, must be a reasonable notice, the sufficiency of which, it seems, will be decided by the Court (s). against condarily liable, on motion after notice. Form of a scire facias against member at The scire facias against the members at the time of the contract ought to state the prior execution against the members at the the time of time of the execution, which is a condition precedent, and is necessary to warrant the scire facias against a member at the time of the contract (†). the contract. And lastly, the question remains, when those who have been members of a joint-stock banking co-partnership cease to be liable to the debts of the co-partnership altogether, and when no writ of scire facias can be issued against them to make them liable to any judgment obtained against the co-partnership, or against the public officer of the company (u). The words of the conclusion of the proviso of the 13th section of the Act (x) are, "that no such under 68th sect. of Joint-stock Companies Act (7 & 8 Vict. c. 110) prior to motion for leave to issue execution; Corder v. Universal Gas Light Company, 17 L. J., N. S., C. P. 305; post, p. 152. (p) See ante, p. 132; Nunn v. Lomer, 3 Exch. 471. (9) 9 Dowl. P. C. 682; ante, p. 129; and see Nunn v. Lomer, 3 Exch. 471. (r) 3 C. B. 905, per Maule, J.; and see Eardley v. Law, 12' Ad. & E. 811, per Littledale, J.; ante, p. 123. (t) Bank of England v. Johnson, 3 Exch. 604; 6 D. & L. 458. in (u) See ante, p. 129. (8) See judgment of Wilde, C. J., same case, ante, p. 121; see, as to notice (r) See ante, p. 112, n. CH. II.] When Members cease to be liable. partners 139 execution as last mentioned" (that is, as against the class of shareholders secondarily liable) "shall be issued"-" after the ex- When the liability of piration of three years next after any such person or persons shall former cohave ceased to be a member or members of such corporation or ceases. co-partnership." This point was raised in the Court of Chancery, before the Master of the Rolls, in the case of Barker v. Buttress (y) on a decree for the administration of the estate of Jonathan Barker, deceased, formerly a member of the Imperial Bank of England. The testator died in March, 1839. In June, 1839, and September, 1839, several claimants on the estate recovered judgment against the public officer. The decree to administer the deceased's estate was obtained in December, 1842. The claimants came in under the decree, and their claim was rejected by the Master, and they excepted to his report. The case turned upon the construction of this proviso at the end of the 13th section of the Banking Act. In his decree, the Master of the Rolls, after commenting upon the section, said the testator's liability was "to have an execution issued against him and his property, provided it be done before the expiration of three years from the time he ceased to be a member. That being so, I do not see how I can afford any sort of relief in a case where the application is made to this Court long after the expiration of those three years. However, I do not mean to say anything as to a bill to be filed within the three years; but it seems to me, if relief is to be had in this Court in such a case as this, against the assets of a deceased person, it must be before the liability-the legal liability-would have expired under this Act of Parliament, if the party had continued alive; and in this state of things I do not think any remedy can be given." In the exposition of this section of the statute by Mr. Baron Parke, in the case of Steward v. Greaves before quoted (2), that learned judge says, "In a proceeding against individuals they would be liable to simple-contract 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." And the same construction is adopted by Lord Chief Justice Wilde in the case of Rickets v. Bowhay (a) before alluded to. After a former member, 'herefore, of a banking co-partnership established under the provisions of this Act, has ceased to be such member for three years, no scire facias can issue against him to render him liable for any (y) Barker v. Buttress, 13 L. J., N. S., Eq. 58. (z) See ante, p. 120; and see 10 M. & W. 720; and see Field v. M'Ken- (a) 3 C. B. 889; ante, p. 121. 140 The writ of scire facias must accurately set forth to which class of shareholders the person sought to belongs, and must not belong to The Writ must set forth to which Class Deft. belongs. [Bк. II. debts of the co-partnership; but until he is enabled to prove that such period has elapsed (b), he remains liable, it would seem, to all judgment debts equally with any of the existing members of the co-partnership secondarily liable, and may be proceeded against either alone (c), or joined with others of the same class of members for the recovery of the fruits of a judgment debt, against the co-partnership, on the proper anterior steps being taken, which have already been pointed out (d). The writ of scire facias against the members of a public company must accurately set forth to which class of shareholders the person sought to be charged belongs. If by any informality he is shown to belong to both classes of shareholders the writ will be quashed. In the case of The Governor and Company of the Bank be charged of Scotland v. Fenwick (e), a rule was obtained calling on the plaintiff's to show cause why a writ of scire facias should not be state him to quashed, issued against the defendant on a judgment obtained both classes. against the public officer of the North of England Joint-stock Banking Company, of which the defendant was a shareholder, and the writ, after reciting the judgment and proceedings, stated that the defendant" at the time of the commencement of the said action in which the said judgment was so obtained as aforesaid, and at the time of the recovery and giving of the said judgment was, and from thence continually has been, and still is a member of the said co-partnership," &c. In delivering judgment, Rolfe, B., said, "The rule must be absolute. The principle of the case of Esdaile v. Trustwell (f) governs this. The statute enables a plaintiff without leave of the Court to issue a scire facias against a member for the time being, and, for the purpose of disposing of this question I will assume that the words "time being" mean at the time the writ issues, for I think it makes no difference (b) See, as to this, Prescott v. Buffery and others, 1 C. B. 41. (c) Fowler v. Rickerby, 9 Dowl. P.C. 682. (d) And see ante, p. 129. (e) 17 L. J., N. S., Exch. 92; S. C., 1 Exch. 797. (f) 16 L. J., N. S., Exch. 316; 1 Exch. 371; 2 Exch. 312. Declaration in scire facias upon a judgment recovered by the plaintiff as registered P. O. of the London and Westminster Bank against the registered P. O. of the Leeds and West Riding Bank ing Company, alleging that the defendant at the time of such judgment being recovered as aforesaid was, and from thence hitherto hath been, and still is, a member of the said copartnership." Demurrer for duplicity and uncertainty. Alderson, B.: "If the defendant were to plead that he was not a shareholder at the time when judgment was recovered, it would be no answer to that part of the declaration which charges him as a member for the time being." The plaintiff had leave to amend. |