CH. VII.] Joint-stock Company under 7 & 8 Vict. c. 110. until it was altered, as to subsequent companies, by statutory enactments passed in the 7 & 8 Vict., both with regard to joint-stock companies generally, and to joint-stock banking companies. By the Joint-stock Companies Act, the 7 & 8 Vict. c. 110, s. 68, it is enacted that, in the cases provided by this Act for execution, on any judgment, decree, or order, in any action or suit, against a joint-stock company, to be issued against the person, or against the property and effects of any shareholder, or former shareholder of such company, such execution may be issued by leave of the Court, or of a judge of the Court in which such judgment, decree, or order, shall have been obtained, upon motion or a summons for a rule to show cause, or other motion or summons consistent with the practice of the Court, without any suggestion, or scire facias in that behalf: provided that no such motion shall be made, nor summons granted, for the purpose of charging any shareholder, or former shareholder until ten days' notice (t) thereof shall have been given to the person sought to be charged thereby (u). () As to the requirements of this notice see post, book ii. ch. ii. and Corder v. Universal Gas-light Company, 17 L. J., N. S., C. P. 305; S. C., 6 C. B. 19, and 4 C. B. 554. (u) The following is the 68th sect. of the 7 & 8 Vict. c. 110, in full:-" And be it enacted, that in the case provided by this Act for execution on any judgment, decree, or order in any action or suit against the company, to be issued against the person or against the property and effects of any shareholder, or former shareholder of such company, or against the property and effects of the company at the suit of any shareholder or former shareholder, in satisfaction of any moneys, damages, costs, and expenses paid or incurred by him as aforesaid in any action or suit against the company, such execution may be issued by leave of the Court, or of a judge of the Court, in which such judgment, decree, or order shall have been obtained, upon motion or summons for a rule to show cause, or other motion or summons consistent with the practice of the Court, without any suggestion or scire facias in that behalf; and that it shall be lawful for 91 92 to render liable to execution Not necessary under 7 & 8 Vict. c. 113. [BE. I. By the Joint-stock Banking Companies Act, 7 & 8 Vict. c. 113, sect. 13, the same provision, totidem verbis, is enacted relating to executions against the members of joint-stock banks on any "judgment, decree, or order in any action or suit against the Company." In all companies, therefore, constituted since the passing of these last two statutes, and incorporated under their provisions, a scire facias is not required in order to make a shareholder of such a company liable to execution on a judgment given against the company or against its public officer; but the course pointed out by these statutes of obtaining the leave of the Court in which such judgment was obtained, to issue execution against a shareholder on motion for a rule to show cause, after ten days' notice to the party sought to be charged, is substituted. As to all companies, however, constituted anterior to these statutes, and incorporated under the provisions of the pre-existing statutes relating to joint-stock companies, and banking co-partnerships, the general rule still prevails as laid down in Cross and others v. Law, Public Officer, and Ransford v. Bosanquet and others (v). A rather singular experiment has, however, recently been made(for as yet it can only be called an experiment)—to evade the decision arrived at by the Courts as to the necessity of issuing a scire facias in order to charge the shareholder of a public company incorporated under the statutes passed prior to the 7 & 8 Vict. cc. Experiment 110 and 113. In Michaelmas Term, 1847, an application was made to the Court of Common Pleas, ex parte Ness (x), to the lands of allow the Master to register a judgment obtained against the a banking public officer of the North of England Joint-stock Banking Comframed pany, by a Mr. John Ness, so as to bind the landed estate of Mr. provisions of James Sanderson of Berwick, at that time, as it appeared by affidavit, one of the co-partners of the banking company, in the last general return made by the company to the stamp office, under the provisions of the 7 Geo. IV. c. 46, s. 4. The banking company it appeared was established under the provisions of the 7 Geo. IV. c. 46, and a judgment had been obtained against the a partner in company under the 7 Geo. IV. c 46, with ing to a out resort scire facias. (v) Ubi supra; and see the case of Burns, Pub. Off. v. Scott, Pub. Off. in re Brook, T. T. 1848, Q. B. (Jointstock Companies, Law Journal, vol. i. 15); Harvey, Pub. Off. v. Scott, Pub. Off. 11 Q. B. 92; 12 Jurist, Jan. 15, 1848; 17 L. J., N. S., Q. B. 9; see judgment of Coleridge, J., Field ibid.; v. M'Kenzie, Pub. Off. 17 L. J., C. P., 98; Bosanquet and others v. Woodford and others, 5 Q. B. 310; Eardley v. Law, 12 Ad. & E. 802; and see post, book ii. ch. ii. where this branch of the subject is fully discussed. (x) MS. and see 17 L. J., N. S., C. P. 15; S. C., 5 D. & L. 339. CH. VII.] Experiment to evade Necessity of Scire Facias. public officer of the company under the 9th sect. of that statute. By the 12th sect. of the statute, "all and every judgment and judgments, decree or decrees, which shall at any time be had or recovered, or entered up in any action, suit, or proceedings in law or equity against any public officer of any such copartnership, shall have the like effect and operation upon and against the property of such co-partnership, and upon and against the property of every such member thereof as if such judgment had been recovered or obtained against such co-partnership." It was submitted that the judgment obtained against the public officer was, under this section, of the like effect as if it had been obtained against every member of the co-partnership, and the application was for the Master to be directed to register the judgment under the 1 & 2 Vict. c. 110, s. 19, and 2 & 3 Vict. c. 11, s. 2, "forthwith " (in the terms of the latter section), so as to bind the lands of the partner sought to be charged. The Master declined to do this without the direction of the Court. The Lord Chief Justice said, "The general principle had been to make the partner liable by scire facias," and the Court after a short consultation declined to interfere extra-judicially, or to intimate an opinion on a subject which might on some future occasion be presented in a more serious form for the consideration of the Court, and left it to the Master to exercise his own discretion whether or no he would "forthwith" enter the name of the partner sought to be charged in the memorandum of the judgment obtained against the public officer, so as to affect and bind the lands of such partner against any subsequent mortgagees or purchasers, and enable the sheriff to deliver execution of such lands to Mr. Ness, under the 11th sect. of the 1 & 2 Vict. c. 110. It is understood that the Master in the exercise of this discretion (having a grave responsibility cast upon him) made the required entry in the memorandum of the judgment. The result of this proceeding has not yet transpired. But its effect, if successful, seems clearly to be an evasion of the rule laid down in Cross v. Law (y), that “wherever it is sought to fix one party on a judgment given against another it must be done by scire facias," the partner ought to be charged, Mr. Sanderson not being named on the record on which judgment had been obtained against the public officer of the company, nor made a party to that record by scire facias; and this on a construction of the 12th and 13th sects. of the 7 Geo. IV. c. 46, directly contrary to the recently decided cases in the Courts of Queen's Bench and Exchequer above referred to (y). (y) Cross and others v. Law, 6 M. & W. 217; Ransford, Pub. Off. v. Bosanquet and others, 2 Q. B. 972. 93 94 Scire facias not neces Crown to revive its debts because of lapse of time. Not necessary for the Crown. [ВК. І. In Ransford v. Bosanquet (a), which was argued on error from the Queen's Bench, the Court expressly affirmed the general rule "that a person not party to the record shall not be affected by it without a scire facias." It is understood that some refined distinction is attempted to be drawn between registering a judgment against a man's lands and proceeding to execution, which cannot be done under the 13th sect. of the statute, according to the decisions in Cross v. Law, and Ransford v. Bosanquet, without a scire facias; and that binding the lands and levying the debt are two distinct things. But it can hardly be said, it would seem, that binding a person's lands under a judgment on a record to which that person is not a party, is "not affecting him" by such judgment; or, that it is not (iu the words of the judgment in Cross v. Law) "a proceeding upon the judgment against one of the members of the company not on the record," for which a scire facias is required in order to make the judgment and execution consistent with each other (b). Lastly, in case of a debt of record due to the Crown the ordisary for the nary presumption that the debt is satisfied after a year and a day does not arise, and the principle that "nullum tempus occurrit Regi," renders it unnecessary, because of the mere lapse of time to revive by scire facias a debt of record due to the Queen (c). On the contrary, in the case of a debt of record to the Queen the debt is presumed not to be paid, because if it were paid it would appear upon record; and if the debt were by bond, "when the debtor had got his tally, it is presumed he would move for an exoneration from his bond" (d). The reason for this exemption in the case of the Crown is, "because the King is supposed by public business not to be able to take care of every private affair relating to his revenue, and therefore no time occurs to the King," nor "does the law allow laches to be imputed to him" (e). So in the case of the death of a debtor to the Crown, although a sary for the new party must be proceeded against for its recovery, as the heir, the case of executor, or administrator, yet a scire facias is unnecessary for the its debtor, Queen (ƒ). In such a case the proceeding is by writ of diem Scire facias not neces Crown in the death of (a) 2 Q. B. 977. (b) Harwood v. Law, 7 M. & W. 207; "otherwise there would be judg ment against A. and an execution upon it against B., which would render the record absurd and inconsistent;" and see Clowes v. Bretell, 11 M. & W. 461; S. C., 2 Dowl. N. S. 528. (c) See ante, ch. i. p. 10; 2 Salk. 603, Anon. "In the case of the King there need not be any scire facias after the year;" 2 Tidd, 1090, 8th ed. (d) Gilb. Exch. 166; 1 Price, 395; West on Extents, 316. (e) Gilb. Exch. 91; 2 Tidd, 1140, 8th ed. (f) 2 Tidd, 8th ed. 1140; Com. Dig. tit. Debt, G, 5; "the King may CH. VII.] Not necessary for the Crown. cution must a new 95 clausit extremum against his lands and chattels. This writ directs because exethe sheriff to inquire by means of a jury when and where the issue against Crown debtor died, and what goods and chattels, debts, credits, party. specialties, and sums of money, and what lands the said debtor had at the time of his death, &c., and to take and seize the same into the King's hands (g). This writ can only issue for a debt of record, and when the party died indebted to the King (h). But if he die indebted to the King by simple contract, and that debt be found by inquisition after his death, that is sufficient. But it cannot issue against the estate of a deceased debtor of a debtor of the King, unless the debt were found by inquisition in his lifetime (i). not neces record, on execution is And by stat. 33 Hen. VIII. c. 39, if any debt of record due to Scire facias the Queen is in danger of being lost, a speedy remedy by writ of sary for the extent is given to the Crown under which, on affidavit that the debts of Crown debt is in danger, execution may be immediately obtained where the without the necessity of the delay of a scire facias, which in all a first proceeding ordinary cases is required even in the case of the Crown (). without any Debts due to the Crown may be divided into three classes-simple- Judicial contract debts, debts due by bond or specialty, and debts due on an affidavit recognizances. previous inquiry, on that the debt is in danger of On a simple-contract debt, as the extent is a writ of execution, being lost. the Court of Exchequer cannot on any principle issue it until the suit is ripe for it, that is when the debt is recorded. In order therefore to record a simple-contract debt to the Crown, a commission issues under which an inquisition is held to find the debt, and the inquisition when returned becomes matter of record (k). The commission is issued by the clerk in Court of the Crown, and is directed to two commissioners, and it requires them to inquire, on the oaths of good and lawful men, whether the defendant be not indebted to her Majesty in any and what sums of money, and to return the inquisition taken thereon at the return of the commission, and it commands the sheriff to cause a jury to attend before the commissioners, and it empowers the commissioners to summon witnesses (1). seize the lands of his debtor upon his death." (g) West on Extents, 319; 2 Tidd, 8th ed. 1104. "Wherever an extent might have issued in a man's life, a diem clausit extremum may issue against his estate at his death :" Rex v. Michever, Bunb. 118. (h) Rex v. Curtis, Parker's Rep. 98; West on Extents, 320. (i) West on Extents, 320; Rex v. Boon, Parker's Rep. 16. (j) West on Extents, pp. 18, 316; and see post, book iii. ch. vii. and viii. (k) West on Extents, 20. (1) West on Extents, 21; 5 Price, 614; 2 Tidd, 8th ed. 1093. |