146 Must be a Scire Facias against Shareholder. [Bк. II. and Compressing Iron Company, to recover the expenses of printing advertisements on the order of the secretary before the passing of the Act of Parliament, in which the plaintiff recovered judgment, and thereupon concluded himself entitled to proceed against the individual shareholders, under the 11th and 12th sections of the Act; sect. 11 enacting that "every judgment, &c., should and might be lawfully executed against, and (subject to certain restrictions) should have the like effect upon the person and estate of every individual shareholder, as if he had been by name a party to such proceedings;" and sect. 12 enacting that it shall be lawful for the plaintiff to cause execution issued upon any judgment obtained against the nominal defendant "to be issued against all or any of the shareholders for the time being of the company," &c. (u). The plaintiff, having failed to obtain satisfaction for his debt, on issuing execution against the secretary, gave notice to a shareholder, and obtained a rule calling upon him to show cause why execution should not issue against him or his goods; and it was urged, in argument in support of the rule, "that execution ought to issue in the first instance without a scire facias, under the provisions of the 11th section of the Act." There must But the Court held, in accordance with the principle laid down in facias the case of Bosanquet v. Ransford (x), that there must be a scire against the shareholder facias against the shareholder, and "then, if any point could be him liable. raised on the construction of the Act of Parliament, it might be raised upon the scire facias, and solemnly determined.” be a scire to render So, also, in the case of Wingfield v. Barton (y), which was also an action against the secretary of the Patent Rolling and Compressing Iron Company, in which, judgment having been obtained against the secretary, execution had been issued against the goods of the company, and on a return of nulla bona a motion was made for leave to issue execution against certain shareholders secondarily liable under the 12th section of the Act (z), on affidavit that notice had been given them of the motion, and that they were shareholders before the commencement of the suit within the requisites of the Act. Patteson, J., referring to the case of Bosanquet v. Ransford (a), and to the mode of proceeding against shareholders under the 13th section of the Bank Act, said he could see no distinction between the 12th section of this (u) See the section in extenso, ante, p. 142, n. (x) See ante, p. 116; see also Clowes v. Brettell, 11 M. & W. 461. (y) Dowl. N. S. 355. (z) See ante, p. 142, n. (a) Ante, p. 116; 12 Ad. & E. 813. CH. II.] Company must sue in Name of their Public Officer. Act, and the 13th section of the Bank Act. "The plaintiff had better, therefore, take a writ of scire facias by leave of the Court." The rule, on motion for leave to issue a scire facias against members secondarily liable under this statute, has been held to be absolute in the first instance (b). 147 It has been already seen that it was decided under the Banking Co-partnership Act (7 Geo. IV. c. 46), in the case of Steward, Pub. Off. v. Greaves and others (c), that it is compulsory, in all actions against any company formed under that Act, to proceed first against the public officer of the company before any steps are taken against individual shareholders. It has also been held that all actions by such a company must be commenced in the name of their public officer. This point was decided in the case of Smith v. Goldsworthy (d), in which the plaintiff declared as the secretary to the British Iron Company. This company was first established unded a deed of settlement, afterwards an Act of Parliament was cbtained for carrying on the business of the company (3 & 4 Vict. c. 94, local, personal, and public, "for granting certain powers to the British Iron Company"); and after reciting that difficulties had arisen in recovering debts due to the company, and that it would be convenient that persons having demands against the company "should be entitled to sue the secretary," it proceeds to enact that all actions and suits "wherein the said company is or shall be interested" "shall and lawfully may" be commenced and prosecuted "in the name of the person who shall be secretary of the said company at the time," &c. The action was brought on a covenant in the deed of settlement for paying instalments on the shares, made with three individuals, promoters of the undertaking, and not in any official or representative capacity, and it was contended that the action should have been brought in their names and not in the name of the secretary. But the Court of Queen's Whenever Bench held, referring to the decision in the case of Steward v. may sue by their public Greaves in the Court of Exchequer, that "whenever a company officer they may sue by their public officer they are bound to do so," and that to do so. the action was rightly brought in the plaintiff's name as the secretary of the company (e). (b) Johnson v. Brettell, 7 Jur. 219. (c) 10 M. & W. 711; ante, p. 118, n. (d) 4 Q. B. 430; and see Wills v. Sutherland, 4 Exch. 211, and ante, p. 119; Chapman v. Milvain, 1 L. M. & P. 209. (e) See also the case of Skinner v. Lambert, 4 Man. & G. 477; S. C., 5 a company are bound 148 Exceptions to this rule. Cases where not necessary to sue in Name of Pub. Off. [Bк. II. There are, however, some cases in which it has been held that it is not necessary to sue the public officer or secretary of a public company in the first instance, and afterwards to proceed against the shareholders of the company for execution on the judgment obtained, by scire facias; but that the shareholders may in the first instance be proceeded against. An examination of these cases, however, shows that the exemption does not arise from any confusion or difference of decision in the Courts, as to the construction of any permissive words to sue and be sued in the name of the secretary or public officer of a public company, but rests entirely on the express words of the statates under which such companies are formed. Thus, in the case of Beech v. Sir James Eyre, Bart. (f), which was an action for goods sold and delivered, brought by the plaintiff against the defendant as an original subscriber and shareholder in the Patent Rolling and Compressing Iron Company, for goods furnished to that company. It was con tended at the trial that the secretary, or a director of the company, under the provisions of the private Act (4 & 5 Vict. c. 89), should have been sued, and not the defendant, as a shareholder; the 5th section enacting that in all actions against the company "it shall be sufficient to state the name of the secretary, or some one of the directors," as the nominal defendant (g). On referring, however, to the 17th section of that Act, that section provides, “that in case any action, suit, or other proceeding, in respect of any demand against the company, shall be instituted or prosecuted against any shareholder, or former shareholder, of the company, in any certain trustees therein named for the (f) 5 M. & Gr. 415; S. C., Sco. (g) The 5th sect. provides as folows:-"That in all actions, suits, and other legal proceedings other than proceedings of a criminal nature, &c., to be thereafter instituted or prosecuted by or on behalf of the said company, either alone or jointly with any other necessary parties, it shall be sufficient to state and to proceed in the name of the secretary, or one of the directors for the time being of the company, as the nominal plaintiff representing the company in such proceedings; and that in all actions, suits, and other legal proceedings to be thereafter instituted or prosecuted against the company, either alone or jointly with any other necessary parties, it shall be sufficient to state the name of the secretary, or some one of the directors; or, where there shall be no secretary or director, then the name of some one of the shareholders for the time being of the company, as the nominal defendant representing the company in such proceedings." > CH. II.] Cases where not necessary to sue in Name of Pub. Off. other manner than under the powers and authorities herein before given; and in case such shareholder shall, by virtue of any judgment or decree in such action, suit, or other proceeding, or under any execution to be issued in respect thereof, or otherwise, pay any sum of money, damages, costs, or expenses, he shall in respect of such last-mentioned payment, be entitled to all such indemnities, rights, powers, and remedies in all respects for reimbursing himself, or for enforcing contribution, according as the case may be, in respect of all moneys, damages, costs, or expenses so paid by him as aforesaid, as are hereinbefore given in cases where execution shall have issued upon any judgment or decree obtained in any action, suit, or other proceeding, instituted or prosecuted under the powers given by this Act." Thus clearly contemplating and providing for the case where an individual shareholder should be sued for any debt due by the company (h). And Tindal, C. J., in delivering judgment, says, "The 5th section (i) does not state that in actions against the company parties shall sue, but only that it shall be sufficient to state,' &c., evidently showing that the clause was merely meant to confer a power or privilege, but not to impose an obligation." "On referring to the 12th and 17th sections, it clearly appears that the right of third parties to sue individual members of the company, is distinctly reserved; for both of these clauses contemplate that the case may occur of actions being brought against individual shareholders." So, in the case of Blewitt v. Gordon (k), which was an action brought against the defendant as a shareholder of the Monmouthshire Iron and Coal Company, the 1st section of the private Act of which company enacts that "all actions, suits, and other proceedings to be commenced, instituted, or prosecuted against the said company shall and lawfully may be commenced, instituted, and prosecuted against the secretary for the time being, or against any one of the elected directors for the time being, of the said company, as the nominal defendant, respondent, or defender in such last-mentioned actions, suits, or proceedings, for or on behalı of the said company;" it was contended that the words "shall" and "lawfully may" did not deprive the plaintiff of his commonlaw right to sue any one of the partners in the partnership which had become indebted to him. Coleridge, J., in delivering judgment, (referring to the preamble and first section of the Act above (h) See now as to this 11 & 12 Vict. c. 45, s. 5. (i) See the case, ante, p. 148. (k) 1 Dowl. N. S. 815; and see ante, p. 118, n. 149 150 Where judgment has been signed against a public a warrant of attorney, and it is The Court will give an Opportunity of Pleading. [Bk. II. quoted), said, "If I stood here alone, and considering the words of the preamble merely, I must hold that this was a provision in favour of the public against the company, in order to remove the necessity of being compelled to sue all the individual members, and then the enacting clause carries out that intention." His Lordship, having referred to sects. 27, 10, and 4 (), quoting the last section, said, "Here is a provision that a proprietor, being sued, may plead a former recovery for the same demand in answer to an action or suit brought against him." These cases cannot be considered as at all running counter to the principle laid down in Steward v. Greaves (m) and Chapman v. Milvain (n), but must be viewed as depending upon particular enactments. The last-cited cases indeed affirm the principle, “that whenever a company may sue or be sued by their public officer, the public officer must be plaintiff or defendant, and that resort to the shareholders must be had afterwards by writ of scire facias. In a judgment obtained on a warrant of attorney, by the trustees of the London and Westminster Bank, given by the public officer of the Southern District Bank, on which a scire facias was officer under issued against several shareholders, the Court of Queen's Bench, on motion, directed an issue to try whether a partnership, called afterwards the Southern District Banking Company, was ever constituted, issue a scire whether the defendants were partners in the company, and if so whether they were indebted to the plaintiffs, and in what sum; and in the trial of such an issue it was held that the defendants could not object that some parties on the record were members of both companies (0). sought to facias on the an issue to try such matters as might have been raised by plea to the action. (1) Sect. 27 provides, that nothing therein contained should be deemed or construed to incorporate the company, or to relieve or discharge any of the proprietors from any responsibility, duty, obligation, or contract what soever. Sect. 10 provides, that if any pro- having any demand against the company shall bring more than one action or suit in respect of such demand; and in case the merits in respect of any such demand shall have been finally determined in any action or suit, then the proceedings in such previous action or suit may be pleaded in bar of any such other or subsequent action or suit which may be commenced or instituted in respect of the same demand against the secretary, or against any other director or proprietor, of the said company." (m) 10 M. & W. 711; ante, p. 118. (n) 1 L. M. & P. 209; ante, p. 119. (0) Bosanquet and others v. Wood |