CH. II.] When the Scire Facias is a Nullity. 151 If the judgment upon which a scire facias issues be void for any Scire facias a nullity, irregularity, the scire facias founded upon it is a nullity. In when. Bosanquet v. Graham (p), in which a warrant of attorney had been given by the defendant, as one of the public officers of the Southern District Banking Company, to the plaintiff " to enter up judgment as of the preceding Hilary term, next Easter term, or any other subsequent term," and judgment was signed "as of Hilary term" in the vacation following, and the writ of scire facias against the defendant was tested in vacation; it was held that the scire facias was void, being tested in vacation (4). In the case of some companies, the shareholders are exempt from personal liability by the private statutes under which they are formed, the plaintiff's only remedy being against the property of the company. Such cases, however, do not properly come within the purview of the present work, the writ of scire facias being inapplicable (r). In a scire facias on a judgment recovered against the secretary of the Indian Steam Ship Company, to have execution on the judgment against a shareholder, it was held that the onus lies on the plaintiff to show that he is, or was, within three years of the judgment obtained, such a shareholder, according to whichever class of shareholders he is charged in the declaration to belong (8). of joint In companies under the operation of the statutes 7 & 8 Vict. Scire facias against c. 110 (t) and c. 113 (u), no suggestion or scire facias is necessary shareholder in order to have execution against a shareholder on a judgment stock comobtained against the company, but execution may be issued by necessary, leave of the Court, or a judge of the Court in which the judgment ford and others, 5 Q. B. 310; and see stat. 1 & 2 Vict. c. 96, s. 1 (continued by subsequent statutes, and made perpetual by stat. 5 & 6 Vict. c. 85), which enacts that actions by or against a banking co-partnership may be brought by or against the public officer of such co-partnership in the name of such public officer, by or against any member of such co-partnership, as if he were a stranger. See also Bosanquet v. Graham, 7 Jur. 831. (p) 7 Jur. 831. (q) See also the case of Cobbold v. Chilver, 1 Dowl. N. S. 727, as to signing judgment "as of" a term in vacation; and Rayment v. Smith, 7 (r) Harrison v. Timmins, 4 M. & W. (s) Scott v. Berkeley, 3 Com. Bench, pany not when. 152 Execution cannot issue against When Notice to Shareholder indispensable. [BK. II. was obtained, upon motion or a summons for a rule to show cause after ten days' notice to the shareholder (x). Where, however, a plaintiff obtained judgment against a jointstock company, and, being unable to obtain satisfaction of his shareholder judgment against the property of the company, gave notice to a stock com- shareholder that application would be made to the court or a judge of joint pany under c. 110, on motion, given. 7&8 Vict. for leave to issue execution against him on the judgment, a summons was taken out and dismissed before a judge at chambers; days' notice and, on application being made to the Court by the plaintiff, without fresh notice being given to the shareholder of such intended application, it was held that the notice of application was exhausted by the summons (y); Wilde, C. J., in delivering the judg ment of the Court, saying, "The legislature had thought fit to enact that before application is made to issue execution on final process against a person who was not primarily liable thereto, such person should have ten days' notice, and had given the applicant power to go to the Court or before a judge. This notice informs a party that an application for leave to issue execution will be made to the Court or a judge; and, accordingly, a summons was issued, the parties attended before a judge at chambers, and he dismissed the summons. Now, this came before the Court as an original application, but there was no notice to support it; for the only notice given had been acted on, and its efficacy was exhausted after an application was made." If notice insufficient may be renewed. If the application to the Court be renewed upon fresh notice, application after being once dismissed on the ground of the insufficiency of the notice, the Court will not refuse again to hear it on the ground that it is res judicata, because the substantial question whether or no the defendant be a shareholder has not been discussed; otherwise the Court would not suffer the matter to be re-opened (2). It has been held under this statute that the 68th section, which empowers the Court, or a judge at chambers, to order execution to issue against a shareholder of a registered jointstock company, without suggestion or scire facias, in actions "at the suit of shareholders," applies to the 66th and 67th sections of the Act, which have reference to executions, on judgments in actions at the suit of creditors and other persons, as well as share (x) See ante, as to this, book i. ch. vii. p. 90; and see ante, ib. p. 92; and see Wordsworth on Joint-stock Companies, 5th ed. pp. 158, 174. (y) Corder v. Universal Gas Light Company, 17 L. J., N. S., C. P. 305. (z) Ibid.; 6 Com. B. 190; S. C., 6 Com. B. 554; Dodgson v. Scott, 2 Exch. 457; and see ante, p. 137. CH. II.] Joint-stock Companies Winding-up Act. 153 Joint-stock Winding-up "The Joint-stock Companies Winding-up Act, 1848," recently passed, (the 11 & 12 Vict. c. 45,) after pointing out how the affairs Effect of of a joint-stock company may be wound up, or a fiat in bankruptcy Companies be issued against it (sect. 5), on the petition of any "contributor" Act. (shareholder), or on a resolution of the members of the company that it is unable to meet its engagements, &c.; and after providing that the Master in Chancery to whom the matter may be referred may appoint an official manager of such company (sect. 22), in whom all the estates, effects, credits, and powers of the company are to vest on his appointment (sect. 29), and in whose name such dissolved companies are to sue and be sued (sect. 50), proceeds to enact, in sect. 56, that orders and decrees in a Court of Equity, against the official manager, may be enforced and executed against the company and every shareholder, upon an order for that purpose obtained, upon motion to be made ex parte in open court. And in sect. 57, "that all judgments which shall be entered up in any action at law, against the official manager of any such company, shall have the like effect and operation upon and against the property of such company, and upon and against the persons and property of the contributories thereof, and shall be enforced in like manner as if such judgments had been entered up against such company, or against any person duly authorized to be sued on behalf of the same." The effect of the 73rd section, it has been held (b), is, that all persons in the situation of creditors are in the first instance to prove their debts before a Master in Chancery, who has power to enforce payment from each individual liable to contribute, and thus provide a fund for the partnership debts. The creditors, having proved their debts, are entitled to be paid. That mode of obtaining satisfaction for their debts is substituted by the 11 & 12 Vict. c. 45, for the remedy given by the former Act; but if it should turn out to be abortive, the Court of Exchequer will in its discretion allow an unpaid creditor to issue execution against the persons liable to contribute. In the mean time, by the true construction of the 11 & 12 Vict., so long as there is a reasonable (a) Peart v. The Universal Salvage Company, 6 D. & L. 322. (b) Thompson v. The Universal Salvage Company, 3 Exch. R. 310. 154 Summary. Summary. [BK. II. prospect of obtaining payment by proving the debt under the provisions of that Act, it is the duty of the Court to prevent individual creditors from having execution against the shareholders of a company (c). Briefly, then, to sum up the decisions respecting the mode of issuing execution against the shareholders of public companies established prior to the stats. 7 & 8 Vict. c. 110 and c. 113, such shareholders are divided under the Banking Act, and generally under other Acts for establishing public companies, into two classes those primarily and those secondarily liable (d) to the judgment. A scire facias is the only mode of proceeding against any shareholders (e) on the judgment against a banking co-partnership, which must be obtained first against the public officer (ƒ), and not against individual shareholders. Against those members of banking co-partnerships who are primarily liable, i. e., against those who are members "for the time being," or, when the writ issues, the writ of scire facias on the judgment may issue at once (g), without the leave of the Court (h). Against those who are secondarily liable, the leave of the Court, after reasonable notice to the person to be charged is required before the scire facias can be issued (i); and such leave will only.be granted on a primâ facie case being made out to satisfy the Court that a bona fide and continuous (k) attempt has been made to recover the debt against the existing shareholders (), though it is not necessary to show to the Court that steps have been taken against all the existing shareholders (m). The scire facias must issue in the first instance against any member or members "for the time being," i. e., when the writ issues (n); and concurrent writs against any number of such members may issue (o). If a scire facias be allowed by the Court to issue against those secondarily liable, they are not concluded thereby, but may plead to it that all steps have not been taken against those primarily liable (p). But no defence can be pleaded to a scire facias which could have been pleaded to the (c) Thompson v. The Universal Salvage Company, 3 Exch. 318, per Parke, B. (d) See ante, p. 121. (e) See ante, p. 113. (f) See ante, p. 118. (g) See ante, p. 115. (h) In some other cases it issues on motion, and the rule is absolute in the first instance (Johnson v. Brettel, 7 Jur. 219, ante). (i) See ante, p. 123. (k) The Bank of England v. Johnson, 3 Exch. p. 598; 6 D. & L. 458, S. C. (1) See anie, pp. 124, 135. (m) See ante, p. 124. original action (9). A person once shown to be a member of a co-partnership will be presumed to continue such till the contrary be shown (r); and his liability will continue till he can show that he has ceased to be a member of the co-partnership for three years (s). If the nominal defendant collusively and fraudulently suffer judgment by default, the shareholders should apply to the Court to set aside the judgment and the proceedings thereon (t). The omission to obtain the leave of the Court to issue a scire facias when required is an irregularity merely to be taken advantage of in due time, and which may be waived by pleading (u). A public officer cannot plead his own personal bankruptcy in bar of an action against the company (x). If judgment has been signed against a public officer on a warrant of attorney, the Court, on the application of shareholders, will direct an issue to try matters that might have been pleaded to the action (y). If the judgment upon which the scire facias issues be void for any irregularity, the scire facias is a nullity (). For forms, and references to the forms, of writs and declarations in scire facias in these cases, see post, Appendix. 155 |