wit, the said act in the first count of the declaration mentioned; in which said act are contained the several clauses and provisions in the said first count set forth, and which for the sake of brevity are here referred to: That afterwards, and before and at the time of the bringing of the action and the recovery of the judgment thereinafter mentioned, the said act became, and from thence continually had been, and then was, the law of and in Calcutta and the said presidency of Bengal applicable to the said company; and that, after the said act had become. and while it was law as aforesaid, and within twelve calendar months next after the passing of the same, such a memorial as in the said act and in the first count of the declaration first mentioned, was duly verified, deposited, and enrolled as directed by the said act; and that afterwards, and before and at the time of the bringing of such action and of the recovery of such judgment as thereinafter mentioned, one John Leslie Russell, who during all that time was resident within the said presidency, and subject to the jurisdiction of Her Majesty's supreme court of judicature at Fort William, in Bengal aforesaid, and to the law of Calcutta and of the presidency aforesaid, was the secretary of the said company: That, on the 25th of February, 1848, the plaintiff and William Strettell Kelsall and James Knight Heron (both since deceased) filed their plaint on the common law side of the said supreme court at Fort William, in Bengal, as in the said first count mentioned; and that such proceedings were then and thereon had as in the said first count mentioned; and afterwards, on the 14th of March, 1848, the plaintiff and the said William Strettell Kelsall and James Knight Heron, since deceased as aforesaid, by the consideration and judgment of the said court recovered *against the said John Les*254] lie Russell, as such secretary as aforesaid, such sums as in the first count of the declaration in that behalf mentioned: That the causes of action in respect of which such judgment was recovered arose within the jurisdiction of the said court; and that the same were and are the same identical causes of action as those in the said several counts contained; and that they arose against the defendant only in respect of claims and demands against the said company, and by reason of obligations and liabilities incurred by the said company, and not otherwise : That the defendant was sued in this action as a member of the said company, and not otherwise: And that the said judgment was a good, valid, and effectual judgment.

The plaintiff joined in demurrer to the first count, and demurred to the first and twelfth pleas. Joinder.

Phipson (with whom was Montague Smith), for the plaintiff.(a)—1. (a) The points marked for argument on the part of the plaintiff, were,

"1. That the defendant, having been a partner in the Calcutta Bank at the time when the causes of action accrued upon which the judgment was obtained in India, and from that time to the present, is liable in this country upon an implied promise to pay the sum for which such judgment was recovered, in the same manner in which he would have been liable had it been obtained against himself individually :

"2. That the first plea is bad, on the ground that the act does not disable the creditor from

[*255

This is substantially an action against *a person who was a party to the judgment in the supreme court of Calcutta. The defendant and his partners have agreed that the secretary or treasurer shall be sued, and that a judgment obtained in an action against either of those persons as the nominal plaintiff, shall have the same effect and operation upon and against the property and funds of the bank, as if such judgment had been pronounced against all the members, and as if all the members had been parties to the action. The distinction between this case and The Bank of Australasia v. Harding, 9 C. B. 661 (E. C. L. R. vol. 67), and The Bank of Australasia v. Nias, 16 Q. B. 717 (E. C. L. R. vol. 71), is, that, here, judgment must have been obtained against the bank, and that judgment prove ineffectual; whereas, in the act there in question, there was no such provision. [CRESSWELL, J.-Nor was there any provision that the judgment should have the same effect as if all the members of the bank had been parties to the action.] The act of council in India can have no operation to control the laws of any other country. If the question were now for the first time presented to the court, they could have no difficulty in dealing with it upon principle. The judgment imposes upon the defendant a moral obligation to pay the debt, which moral obligation is a good foundation for an action against him here: Walker v. Witter, 1 Dougl. 1; Russell v. Smyth, 9 M. & W. 810, 818.† In the last-mentioned case, Lord Abinger says: "The action(a) may be sustained on the ground of morality and justice. The maxim of the English law is, to amplify its remedies, and, without usurping jurisdiction, to apply its rules to the advancement of *substantial [*256 justice. Foreign judgments are enforced in these courts, because the parties liable are bound in duty to satisfy them." And Parke, B., says: "Where the court of a foreign country imposes a duty to pay a sum certain, there arises an obligation to pay, which may be enforced in this country." The provisions in the Indian act for facilitating the enforcing of the judgment, are modes of procedure only, and do not in any way interfere with the question of contract, or with the plaintiff's right to sue upon the judgment in this country. The construction of a contract is governed by the law of the place where it is entered into ; the mode of enforcing it, by that of the place where it is sought to be enforced. "The distinction," says Tindal, C. J., in Huber v. Steiner, 2 Scott, 304, 326, 2 N. C. 202, 210 (E. C. L. R. vol. 29), "between that part of the law of the foreign country where a personal contract is made,

suing the bank in the name of the secretary before the filing of a memorial under the act; but that the act only prevents the bank from bringing an action in the name of the secretary until such memorial has been filed; and, further, that the matter of the first plea should have been pleaded to the original action, and was no bar to the present claim :

"3. That the twelfth plea was bad, on the ground that the provisions of the act do not prevent the plaintiff from suing the defendant personally in England in respect of causes of action against the company of which he was a member."

(a) Against a defendant resident in this country, for costs awarded against him, after appearance, by a decreet of the court of session in Scotland, in a suit for a divorce.

which is adopted, and that which is not adopted by our English courts of law, is well known and established, viz. that so much of the law as affects the rights and merit of the contract, all that relates ad litis decisionem,' is adopted from the foreign country; so much of the law as affects the remedy only, all that relates ad litis ordinationem,' is taken from the 'lex fori' of that country where the action is brought."(a) The cases of Needham v. Law, 11 M. & W. 400,† and Webb v. Taylor, 1 D. & L. 676, show that the shareholders are the real defendants in these actions: the bringing the suit in the name of the secretary or treasurer is mere matter of form. And there is more reason that it should be so, where the action is against a foreign corporation. Lord Campbell, in giving judgment in The Bank of Australasia v. Nias, 16 Q. B. 733 (E. C. L. R. vol. 71), says: "The colonial legislature, we think, clearly had authority to pass an act *regulating the procedure by which the *257] contracts of the banks should be enforced in the courts of the colony. Nor is there anything at all repugnant to the law of England, or to the principles of natural justice, in enacting that actions on such contracts, instead of being brought individually against all the shareholders in the company, should be brought against the chairman whom they have appointed to represent them. A judgment recovered in such an action, we think, has the same effect beyond the territory of the colony which it would have had if the defendant had been personally served with process, and, being a party to the record, the recovery had been personally against him. The act imposes no new liability upon him, but only regulates the mode in which that liability shall be judicially constituted. Any specific remedy upon the judgment which might have existed in the colony cannot be obtained out of the colony; and, unless the judgment may be made the foundation of an action, it could not in any manner be rendered available in this country. In recompense for the advantages conferred upon the company by the act, it anxiously provides that the rights of the creditors of the company shall not be prejudiced by it." The same principles governed the decision in this court. Wilde, C. J., says: The statute provides "that one member, holding a principal office in the company, may sue and be sued, instead of the whole body; and that execution may issue against the property of the other members of that body. But, while giving this benefit to the company, the act provides that it shall not vary the rights or the liabilities of the parties. Now, independently of the colonial act, the defendant would have been liable in respect of the demand for which he is now sued; and, if the judgment had been recovered in an action brought against all the members jointly, an action of debt or assumpsit would clearly have lain against the defendant upon that judgment." The act *makes it imperative to sue the secretary or treasurer in India: Steward v. Greaves, 10 M. & W. 711.†

*2581

(a) And see Trimbey v. Vignier, 4 M. & Scott, 695 (E. C. L. R. vol. 30), 1 N. C. 151 (E. C. L. R., vol. 27)

2. Then, is the plaintiff's right of suing upon the judgment at all affected by the provisions in the colonial act for enforcing it by execution against the shareholders? Those enactments, it is submitted, provide merely for the mode of regulating the procedure on the judgment in the colony, and cannot in any way interfere with or alter the legal effect. and operation of the judgment in a foreign country. [CRESSWELL, J.Are you not compelled to resort to the act to maintain the action?] We could not maintain an action against a stranger in India without the act. [CRESSWELL, J.-Then it will probably be urged, on the other side, that you must take the whole act, including the mode of procedure to enforce the judgment. Could you sue upon the judgment in Calcutta?] No. But the implied assumpsit raised by the judgment is not affected by any local stipulations for the mode of enforcing it there. In Hall v. Odbee, 11 East, 118, a foreign judgment recovered by the plaintiff, with a stay of execution for six months, was held to be good evidence in support of an account stated. Lord Ellenborough said: "The judgment is for a sum certain found to be due from the defendant to the plaintiff, with interest thereon from a certain day past; but with a stay of execution till the further order of the court: and this at first struck me as an incomplete judgment, on which no action could be maintained here. But we have been pressed with the course of proceedings in our own courts, where upon judgment recovered and a stay of execution upon the allowance of a writ of error, an action lies nevertheless upon such judgment in the meantime; and applications are continually made to the equitable jurisdiction of the court, to stay proceedings in such actions pending the writ of error." The distinction, therefore, is one of mere procedure. The judgment in the colonial *court is not the less a judgment, because of the local regulations as to enforcing it by execution there.

[*259

3. Then, as to the twelfth plea,-if it means that the simple contract debt is merged in the judgment, the cases of The Bank of Australasia v. Nias, and The Bank of Australasia v. Harding, are conclusive to show that it is not. [Byles, Serjt., intimated that he did not intend to insist that it was.] The act of the Indian legislature can have no operation out of the Indian territory. [CRESSWELL, J.-It will probably be contended that the defendant never consented to be placed in jeopardy by the recovery of a judgment against the secretary or treasurer, except under certain circumstances, and in a particular manner.] That argument goes to the very root of the decision in the two cases referred to, and is distinctly met by the judgment.

Byles, Serjt. (with whom was John Gray), for the defendant.(a)—

(a) The points marked for argument on the part of the defendant, were,—

"1. That the first count is bad, and discloses no cause of action, or right to proceed against the defendant in the English courts:

"2. That the judgment is a judgment against the secretary, and not against each individual member; and that, if it were, execution could at once and of course be taken out against a share

There is a material difference between the *cases of The Bank *260] of Australasia v. Nias and The Bank of Australasia v. Harding and the present case. In those cases, nothing was left to be done except the payment of the money: whereas, here, two steps are to be taken before the now defendant could have execution issued against him in the colony,-first, an ineffectual execution against the funds and property of the bank,-secondly, the leave of the court in which the action was brought must be obtained: and for these he has paid a valuable consideration. Under the Australasian Bank act, it was provided "that execution upon any decree or judgment in any such action, suit, &c., obtained against the chairman for the time being of the bank, might be issued against and levied upon the goods and chattels, &c., of any member or members whatsoever of the said bank for the time being, in like manner and not otherwise than as if such decree or judgment had been obtained against such member or members personally." By the act now under consideration, it is enacted that "every judgment made or pronounced in any action, &c., within the limits of the territories of the East India Company, against the secretary or treasurer for the time being of the said Union Bank, shall (subject to the express provisions of this act) have the like effect and operation upon and against the property and funds of the said Union Bank, as if such judgment had been made or pronounced against all the members of the said Union Bank, and as if all the members of the said *Union Bank had been parties before the court to such action," *261] &c. [CRESSWELL, J.-I find nothing subsequently limiting the remedy to the funds of the bank: I think that enactment must be read as if the words "subject to the express provisions of this act" had not been there.] It is enough to say that the judgment has some effect against the property and funds of the bank. There are, however, subsequent provisions a compliance with which on the part of the judgment-creditor is a condition precedent to his right to have recourse to individual shareholders. Execution is, in the first place, to issue against the assets of the company. That remedy failing, execution is to go against members for the time being; and then, and not till then, holder in Bengal; whereas, it is clear that execution could only be had against such shareholder under the special clauses of the act in question:

"3. That it was not competent to the plaintiff to adopt part of the act and reject the rest; that there was no judgment in existence against the bank, or any person representing it, except by force of the act (the said John Leslie Russell being otherwise a stranger both to the bank and the cause of action); and that, consequently, the plaintiff could not put in force his judgment, except under the circumstances and in the manner directed by the act:

"4. That the first plea was good, and the verifying and enrolling such memorial was a necessary condition precedent to the said John Leslie Russell being made the nominal defendant for the bank; and that this memorial was the only evidence admissible of the person sued being such secretary:

"5. That the twelfth plea was good, showing that the plaintiff had already recovered a judgment for the same causes of action, under which he would or might have his remedy, in the manner prescribed by the act, against the defendant and the other shareholders in the bank; and that the plaintiff could not have another action against the defendant in respect thereof."