-what is the effect of the Vice-Chancellor's order? The 73d section of the 11 & 12 Vict. c. 45, in terms prohibits any person from commencing or proceeding with any action against the company, or against any other person representing the company, without the permission of the master, until after proof of his debt or demand as therein provided. The rights of the parties in this case are not varied by the 12 & 13 Vict. c. 108, the 1st section of which enacts, amongst other things, that, "notwithstanding anything in the 11 & 12 Vict. c. 45, contained, importing a more limited application thereof, the same shall apply to all partnerships, associations, and companies, whereof the partners or associates are not less than seven in number, whether *incorpo*258] rated or unincorporated, and whether formed or subsisting before or after the passing of the said act or this act, other than, and except, railway companies incorporated by act of parliament, to which companies such act shall not apply." The 38th section, however, which provides "that this act shall be taken and construed (so far as practicable) as a part of the said joint-stock-companies-winding-up act, 1848," shows that the provisions of the second act were not intended to over-ride proceedings which had already been taken under the first act.

2. This is a proceeding in the nature of an attachment. [CRESSWELL, J.—Rather, in substitution for it.] An attachment does not lie against an incorporated company. [WILDE, C. J.-It is a mere personal remedy.] Precisely so. In Corpe v. Glyn, 3 B. & Ad. 801 (E. C. L. R. vol. 23), a dock company were authorized by statute to sue and be sued by their treasurer, but he was not to be liable in his own person or goods by reason of his being defendant in any such action; and all costs incurred by him in prosecuting or defending any action for the company, were to be defrayed out of the moneys applicable to the purposes of the act. Two actions between the treasurer and Corpe, in one of which the treasurer was plaintiff, and in the other defendant, were referred to an arbitrator, who awarded against the treasurer in both, with costs. The costs and damages being unpaid, and an attachment being moved for against the treasurer,-it was held, that he had not rendered himself personally liable by submitting to an order of reference and the court refused an attachment, but ordered a mandamus to the treasurer and directors to pay the sums awarded. [WIlde, C. J.-Does the plaintiff contend that an attachment will lie against this company? Creasy.-No.]

*3. The same rules that are applicable to attachments, will *259] apply to this proceeding. There have been numerous cases of motions for orders for the payment of money, to be rendered available under the 1 & 2 Vict. c. 110, s. 18; and it has uniformly been held that the same strictness of service and other matters is necessary as in the case of a motion for an attachment: Jones v. Williams, 11 Ad. & E. 175 (E. C. L. R. vol. 39), 4 P. & D. 217; Neale v. Postlethwaite, L

Q. B. 243 (E. C. L. R. vol. 41), 4 P. & D. 623; Doe v. Amey, 8 M. & W. 565,† 1 Dowl. N. S. 23; Kerr v. Jeston, 1 Dowl. N. S. 340; Abrahams v. Taunton, 1 D. & L. 319; Wilson v. Foster, 6 M. & G. 149 (E. C. L. R. vol. 46), 6 Scott, N. R. 936; Hawkins v. Benton, 2 D. & L. 465; Dickenson v. Allsop, 13 M. & W. 722;† Winwood v. Holt, 3 D. & L. 85. [WILLIAMS, J.-All these cases only show, that, to entitle you to an order under the 1 & 2 Vict. c. 110, you must take all the same preliminary steps that would be required to found a motion for an attachment; not that you can only obtain an order in cases where an attachment would be granted.] It is only in cases that are clear and free from doubt, that the court will entertain an application of this sort: Spence v. Clarkson, 1 Dowl. N. S. 837; Holcroft v. Manby, 7 M. & G. 843 (E. C. L. R. vol. 49), 8 Scott, N. R. 473. At all events, an attachment cannot be granted for an instalment: Leveridge v. Forty, 1 M. & Selw. 706; Atkinson v. Bayntun, 1 N. C. 444, 1 Scott, 404.(a)

4. There has been no proper demand of the money: the affidavit states a service of the award, rule of court, and allocatur, and a demand of the money upon the secretary and one of the directors; whereas, it should have been, either upon the official manager, or upon the treasurer of the company, the person who, in the *contemplation of the [*260 act, has the custody of their money. The 135th section of the companies clauses consolidation act applies only to summonses, notices, writs, and rules of court, and not to demands of money, which appear to be omitted. The 50th, 90th, 91st, 109th, and 143d sections of that statute seem to show that the treasurer is the person upon whom the demand should have been made. [WILDE, C. J. (addressing Creasy).— Is it the practice of the court to proceed by way of attachment, so as to preclude the discussion of that which may amount to a bona fide defence, or by rule calling upon a party to show cause why he should not pay the money?]

Creasy. It may be conceded that the plaintiff is bound to show that the defendants will sustain no undue prejudice by this mode of proceeding. But, it is submitted that here the company could have no defence, if the plaintiff were to proceed to enforce the award by action. [MAULE, J.—Might they not set up the vice-chancellor's order?] Clearly not. The defendants cannot be prejudiced by this rule being made absolute for, suppose an attempt were made to take any of their effects in execution under it, the question would then arise, whether or not they had become vested in the official manager, by virtue of the vicechancellor's order. He would not be concluded by the order of this court. The only object of this proceeding, is, to enable the plaintiff to proceed against shareholders; as a preliminary to which, he must obtain judgment and execution against the company: Peart v. The Universal

(a) But see Cooke v. Whorwood, 2 Wms. Saund. 337.

Salvage Company, 6 M. Gr. & S. 478 (E. C. L. R. vol. 60), 6 D. & L. 322. [MAULE, J.—In truth, you wish us to decide a difficult question, upon motion, and so deprive the defendants of the means of reviewing our decision by a writ of error.] Undoubtedly, that would *be *261] the effect of this motion. Very grave doubts have been entertained, whether the joint-stock-companies-winding-up act, 1848, was ever intended to apply to railway companies: and, at all events, the Lord Chancellor seems to have had no difficulty in holding the 33d section of the 12 & 13 Vict. c. 108, to be retrospective: In re The North of England Joint-stock Banking Company (Sanderson's case), 19 Law Journ. N. S. Chan. 122. There, a motion, by way of appeal from a decision of a master, made under the winding-up act of 1848, was made to one of the vice-chancellors, and decided by him on the 7th of July. A notice of motion, by way of appeal from the vice-chancellor's decision, was given on the 8th of August, after the passing of the 12 & 13 Vict. c. 108. The motion was refused by the Lord Chancellor, on the ground of the notice of motion having been given more than three weeks after the decision of the vice-chancellor; and that the 33d section (a) of the last-mentioned act, limiting the time within which notice of motion for a re-hearing must be given, applies to orders made under the winding-up act of 1848. [MAULE, J.-The court will only aid you in the way you ask, where the case is free from doubt. [CRESSWELL, J.-You must show that the company is liable to an execution.]

WILDE, C. J.-This rule asks for an order, upon which the plaintiff may proceed to judgment and execution against the property of the company. Now, it is contrary to the usual practice of the court, to *262] give a *party a summary remedy, which shall have the effect of shutting out a discussion upon the merits, where there exists a reasonable and well-founded doubt. I think this is not a case in which we ought to make the order prayed.

MAULE, J.—I am of the same opinion. We might do great injustice if we granted this rule, and can do but little in refusing it, seeing that the plaintiff has still his remedy by action.

The rest of the court concurring,

Rule discharged, without costs.

(a) Which enacts "that no notice of motion for a re-hearing before the Lord Chancellor of Great Britain or Ireland respectively of any order of the Master of the Rolls in England or Ireland, or of any of the vice-chancellors in England, under the said act or this act, shall be given after the expiration of three weeks after the order complained of shall have been made."

STEAD v. ANDERSON. Jan. 31.

A., a prisoner in the Queen's prison, in execution for the costs of a nonsuit, was, by an order of the insolvent debtors' court made before the passing of the 11 & 12 Vict. c. 7, directed to file a schedule of his property, debts, &c., pursuant to the 36th section of the 1 & 2 Vict. c. 110. After the 11 & 12 Vict. c. 7, came into operation, the keeper of the prison, pursuant to the directions for the classification of prisoners under the 2d section of that act, removed A. to that part of the prison appropriated to first-class prisoners:-Held, that such removal was proper.

Semble, that, where a prisoner complains of an undue exercise of authority by the gaoler, his proper course is, to apply to the court, or a judge, by petition, for relief under the 32 G. 2, c. 28, s. 11, and not by habeas corpus.

THE plaintiff being in custody in execution at the suit of the defendant, for costs, and the defendant having, on the 21st of December, 1847, obtained a vesting order under the statute 1 & 2 Vict. c. 110, s. 36, which order was, on the 23d, served upon the keeper of the Queen's prison, and also upon the plaintiff, the plaintiff was, on the 4th of July, 1848 (he not having in the mean time filed a schedule, in obedience to the order), removed from that part of the prison in which he had before been detained as a prisoner of the third class, and placed in that part which, by the rules framed *by the secretary of state for the regu[*263 lation and classification of prisoners, pursuant to the statutes 5 & 6 Vict. sess. 2, c. 22, and 11 & 12 Vict. c. 7, is devoted to first-class prisoners, which is composed of the three following descriptions of prisoners, viz. First, debtors adjudged under the 77th, 78th, and 96th clauses of the 1 & 2 Vict. c. 110, as not entitled to the benefit of the said act, and to be discharged at some future period; secondly, debtors refusing or neglecting to file a schedule of their property, when ordered to do so by the court for the relief of insolvent debtors, under the provisions of the 36th section of the 1 & 2 Vict. c. 110; thirdly, bankrupts, against whom a warrant may be issued and lodged by the commissioners of bankruptcy, for fraud, or contempt of court."

Pashley, in Michaelmas term last, moved for a rule calling upon the keeper of the Queen's prison to show cause why an attachment should not issue against him for the alleged improper detention of the plaintiff. The statute (11 & 12 Vict. c. 7, s. 2) under which the regulation as to first-class prisoners is made, received the Royal assent on the 28th of March, 1848, which was after the making of the vesting order. Now, by an invincible rule of construction of penal statutes, the words "when ordered," must be limited to an order made after the passing of the act. Thus, Lord COKE, in his Commentary on the statute of Gloucester, c. 3, that, "if a man aliene a tenement that he holdeth by the law of England, (a) his son shall not be barred by the deed of his father (from whom no heritage to him descended) to demand and reco

(a) i. e. as tenant by the curtesy.

66

ver by writ of mortdauncestor, of the seisin of his mother, although the deed of his father doth mention that he and his heirs be bound to *261] warranty," says :(a) This extendeth to alienations made after the statute, and not before; for, it is a rule and law of parliament, that regularly nova constitutio futuris formam imponere debet, non præteritis." In Ashburnham v. Bradshaw, 2 Atkyns, 36, there was a devise to charitable uses under a will in 1734; the testator lived till July, 1736, a month after the new statute of mortmain took place, and then died without revoking his will: it was referred by the Court of Chancery to the judges for their opinion, whether this was a good disposition to charitable uses; and all of them certified that the devise to these uses was good in law, notwithstanding the act. So, in Moon v. Durden, 2 Exch. 22,† it was held by the Court of Exchequer (dissentiente PLATT, B.), that the 18th section of the 8 & 9 Vict. c. 109, which enacts that all contracts and agreements by way of gaming or wagering, shall be null and void, and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager, or which shall have been deposited in the hands of any person to abide the event upon which any wager shall have been made," had not a retrospective operation, so as to defeat an action for a wager, commenced before the statute passed. In Henderson v. Sherborne, 2 M. & W. 236, 239,† Lord ABINGER says: "The principle adopted by Lord TENTERDEN,(6) that a penal law ought to be construed strictly, is not only a sound one, but the only one consistent with our free institutions. The interpretation of statutes has always, in modern times, been highly favourable to the personal liberty of the subject, and I hope will always remain so." [MAULE, J.-There is no doubt that, in this country, the liberty of the subject is very much regarded and talked about, and that all statutes are to be so construed as to favour it, *rather than otherwise.] *265] As to the remedy,-Hawkins, in treating of attachment, says :(c) "There being scarce anything of this kind to be met with in the books, I shall only observe, that it seems clear, from the general reason of the law, which gives all courts of record a kind of discretionary power in the government of their own officers, that any such court may proceed in such manner against any such officer, not only for refusing to execute its commands, or for executing them irregularly, remissly, or oppressively, but also for all kinds of oppression or injustice done by them in the execution of their offices, or by colour of them." In 12 Co. 127, cited in Com. Dig. Imprisonment (I), is an instance of an indictment against a gaoler—“ quod ubi quidem Robertus de Bayons de Tunelby captus fuit, et in prisona Castri London' detentus pro quodam debito statuti merca

(b) In Proctar v. Mainwaring, 3 B. & Ald. 145 (E. C. L. R. vol. 5).
(c) Hawk. P. C., Book 2, § 12.