execution against those who were members at the time of the contract. But the judgment-creditor cannot have execution against shareholders of either degree, except on motion made in open court, upon which motion the party sought to be charged may be heard to urge any defence he may have against it. Suppose the case of a man no party to the contract,-are the provisions of this act, which make him liable. upon a contract he never entered into, mere matter of procedure? He is to be liable upon a final judgment only. The court will look, not at the form, but at the real nature and substance of the judgment. This is not in substance a final judgment, the true test of which is, where nothing remains but to pay: it is a mere interlocutory judgment. No case can be found where an action has been held to lie in the courts of this country upon a foreign judgment, where no action would have lain upon it in the country where it was obtained. It is clear that the present defendant could not have been sued upon this judgment in the supreme court at Calcutta. If he could, what becomes of all the provisions so studiously introduced into the act for his protection? The plaintiff is obliged here to rely upon the Indian act to make the defendant liable. If so, he *cannot take one part, and reject the rest. It may be conceded that the provisions as to execution in form [*262 seem to relate to procedure. But the question is, whether they are not substantially part of the contract between these parties. Story, in his Conflict of Laws, after noticing in a previous section the distinction, often disregarded, between the obligation and the nature of the contract, says in § 267,-" Suppose a contract by the law of one country to involve no personal obligation (as was supposed to be the law of France in a particular case which came in judgment,-Melan v. Fitzjames, (a) 1 B. & P. 138), but merely to confer a right to proceed in rem; such a contract would be held everywhere to involve no personal obligation whatsoever. Suppose, by the law of a particular country, a mortgage for money borrowed should, in the absence of any express contract to repay, be limited to a mere repayment thereof out of the land, a foreign court would refuse to entertain a suit giving to it a personal obligation. Suppose a contract for the payment of the debt of a third person, in a country where the law subjected such a' contract to the tacit condition that payment must first be sought against the debtor and his estate; that would limit the obligation to a mere accessorial and secondary character; and it would not be enforced in a foreign country, except after a compliance with the requisitions of the local law." That doctrine is very applicable here: the provisions as to the liability of the shareholders in the first and the second degree, after exhausting the remedies against the assets of the bank, are in substance incidents and ingredients in the contract. In Steward v. Greaves, 10 M. & W. 711, 720,† Parke, B., says: "At

(a) Overruled in Imlay v. Ellefsen, 2 East. 453.

common law, all the goods of the contracting parties and their persons would be liable to immediate execution: by the statute, the goods of the *263] *company are liable, and the members for the time being at the period of execution, in the first instance, and afterwards those who were so at the time of the contracts being entered into or carried into effect, or when the judgment was obtained thereon. In a proceeding against individuals, they would be liable to simple-contract debts for six years, to specialties for twenty: in the statutory mode of proceeding, the members who have ceased to be such for three years are exempt from debts of every description. Thus, the liability created by the statute is very different from that which would exist without it; and it cannot be supposed that the legislature meant to leave it to the option of any creditor, whether the members of the company should be subject to one species of liability or the other; still less that a creditor should have the power of depriving them of the statutory protection which is given to each after having ceased for three years to be a partner. The framers of the act had in view the convenience of the public, and thereby provided a more convenient remedy to creditors than at common law; but they had also in view the benefit of the members of the company, by restricting their personal liability." As to the plea,-it cannot be contended that the judgment operates as a merger. But it is submitted that a good defence is presented by that part of the plea which sets out the act of the Indian legislature, and alleges that the plaintiff has availed himself of the act. It amounts to a contract between the parties that these bills should be satisfied in a particular

manner.

Phipson, in reply.-The only operation of the act, is, the mode in which a creditor of the bank shali recover in India. It is mere mode of procedure, and not matter of contract at all. The defendant could not have pleaded or set up in India, in answer to a motion for leave to issue execution, any matter which would have been an *answer *264] to the action itself. It is even doubtful whether the defendant could be heard at all: the words relied on upon his behalf applying only to a case where it is sought to enforce the judgment against one who was a proprietor at the time of the contract. Then it is said that this is not a final judgment. But, why not? It is an absolute and conclusive judgment: and it is not the less final because particular remedies for its enforcement in India are provided by the act. Suppose the act had provided that a judgment against the secretary should operate against goods only,-would that have been binding here? No execution by ca. sa. could be issued against the person in New South Wales; yet the court held that an action might be brought upon the judgment here, and so the creditor might get here a remedy not open to him there. The modes of proceeding to obtain the fruits of the judgment, do not affect the nature of the judgment.

CRESSWELL, J.-I was at first disposed to pay the ingenious argument urged on the part of the defendant the compliment of taking time to consider before pronouncing judgment in this case. But, my Brother Crowder entertaining no doubt, it appears to us that we ought to dispose of it at once. We think the case is governed by the two cases in the Court of Queen's Bench and in this court, of The Bank of Australasia v. Nias, 16 Q. B. 717 (E. C. L. R. vol. 71), and The Bank of Australasia v. Harding, 9 C. B. 661 (E. C. L. B. vol. 67). It has been suggested that there is a distinction between those cases and the present, by reason of the provision in the act of the Indian legislature as to the mode of enforcing against the members of the company a judgment obtained against the secretary, viz. by execution against individual proprietors, issued by leave of the court after an ineffectual attempt to obtain satisfaction against the funds of the company. But it seems to me that those provisions do not in any degree affect the right of the *judgment-creditor to pursue his remedy upon the [*265 judgment in the manner provided by the law of this country. It has been further urged, that, when the shareholders or proprietors agreed to be bound by a judgment against the secretary or treasurer, they must be taken to have assented to be bound by a judgment which was to be enforced only in the manner provided by the act. But the answer to that is, that the parties must have known that the act of the Indian legislature could have no operation in this country. They consent, therefore, to be sued in the name of the secretary or treasurer, and to be bound by a judgment obtained against him, as if they themselves had been parties to the suit,-leaving all the consequences to follow which ordinarily flow from a judgment. It seems to me, therefore, that the case substantially falls within the principle laid down in the two I have mentioned, and that the plaintiff is entitled to judgment on the demurrer to the first count of the declaration. Then, as to the counts upon the bills of exchange, the argument applies with still greater force. The defendant cannot be permitted to introduce into the contract upon the bills a condition like that suggested. Upon the whole, therefore, the plaintiff is entitled to the judgment of the court.

CROWDER, J.-I am entirely of the same opinion. It seems to me, that, in order to determine this case, we have only to consider what is the operation of the colonial act. That clearly must be confined to suits commenced and prosecuted in India, and can have no operation whatever out of that territory. I agree with my brother Cresswell that this case is entirely disposed of by the two cases of The Bank of Australasia v. Nias, and The Bank of Australasia v. Harding. There is nothing at all inconvenient or inconsistent with natural justice in this conclusion. The parties are bound by the *terms of the act [*266 of the Indian legislature in all proceedings in that country. But the defendant was bound to know that he was open to the opera

N. S., VOL. I.-13

tion of the law of this country in a suit here upon that which was done by his agent there. Upon the whole, therefore, the declaration must be held good, and the plea bad, and consequently the plaintiff must have judgment on both demurrers.

Judgment for the plaintiff.

It is no answer to a rule for a mandamus to examine witnesses, that it is moved whilst issues in law are pending for arguments.

PHIPSON, on a former day in this term, obtained a rule nisi for a writ in the nature of a mandamus(a) directed to the Chief Justice and other judges of the supreme court of judicature at Fort William, in Bengal, for the examination of H. W. Abbott and others, witnesses on the part of the plaintiff, resident at Calcutta and elsewhere within the jurisdiction of the said supreme court, and for a postponement of the trial until the return of the said writ, the costs to be costs in the cause. John Gray, for the defendant, objected that the rule had been moved prematurely, and that the plaintiff should have waited until after the argument of the demurrers.

CRESSWELL, J.-That is no answer.

(a) Under 13 G. 3, c. 63, s. 44.

Rule absolute.

*267]

*SNEAD v. WATKINS. Nov. 21.

Goods brought by a guest to an inn are subject to the innkeeper's lien, though they may turn out to be the property of a third person.

One H., who had formerly been clerk to the plaintiff, an attorney, was subpoenaed as a witness in an action brought by his late employer to recover the amount of a bill of costs. H. put up at a public-house of entertainment at Westminster kept by the defendant, bringing with him a bag containing, amongst other things, a letter-book belonging to the plaintiff. Whilst at the defendant's house, H. became indebted to the defendant for lodging and refreshments, and quitted without paying his bill, leaving behind him the bag with the letter-book, which the defendant refused to deliver up to the plaintiff on demand, claiming a lien for his bill against H.-Held, that the claim of lien was valid.

THIS was an action for the conversion of a blue bag and a letterbook. Pleas, not guilty, and that the goods were not the goods of the plaintiff.

The cause was tried before Wightman, J., at the last Summer Assizes at Oxford. The agreed facts were as follows:

The plaintiff, an attorney, had brought an action against one Kedge to recover the amount of a bill of costs. One Hulme had been clerk to the plaintiff during the time the bill was incurred, but had left his service before the trial. He was subpoenaed to attend as a witness for the plaintiff at Westminster, and took with him the plaintiff's letter-book and index, in a blue bag.

The witness Hulme, when in London as a witness, put up at the White Hart, Millbank Row, kept by the defendant, and took with him there the blue bag, with the book and index in it, and incurred a bill with the defendant of 21. 158. 8d., made up of 11. 78. 6d. money advanced to Hulme, as he said, for witnesses, 198. 2d. for refreshments and beer, and 98. for lodging money from the 25th of April till the 7th of May.

The plaintiff gave Hulme 11. 68. before he left Gloucester, and 21. more before the cause was tried. The trial took place on the 28th of April. On the costs being taxed, Hulme was allowed 51. 158. for his expenses as a witness; and the difference was paid to him by the plaintiff's agent.

Hulme did not return to Gloucester: and the defendant claimed to retain the book, index, and bag, on the *ground of a lien upon them for his bill against Hulme during the time he was at his house.

[*268

On the 2d of June, the defendant wrote to the plaintiff, stating that Hulme had left his bill unpaid, and that he had applied for it in vajn; and that he then held Mr. Snead's large letter-book, which he would forward to him on receiving the amount of the bill.

A demand and refusal (on the ground of lien) were admitted.

In the blue bag there was a cap belonging to Hulme, but which was not claimed by the plaintiff.

The cases of Turrill v. Crawley, 13 Q. B. 197 (E. C. L. R. vol. 66), 24 Law Journ. Q. B. 155, and Broadwood v. Granara, 10 Exch. 417,† 24 Law Journ. Exch. 1, were cited.

Under the direction of the learned judge, a verdict was taken for the plaintiff for 18., the defendant giving up the articles claimed in the declaration, and the plaintiff undertaking, in the event of the court deciding in his (the defendant's) favour, to pay the defendant 17. 8s. 2d., the amount of his bill less the 17. 7s. 6d. for money advanced to Hulme : and leave was reserved to the defendant to move for a nonsuit, or that a verdict might be entered for him.

Huddlestone, on a former day in this term, accordingly obtained a rule calling upon the plaintiff to show cause why the verdict found for him on the second issue should not be set aside, and a verdict entered for the defendant, on the ground that, upon the facts admitted, the defendant had a lien on the goods of the plaintiff sought to be recovered in this action. He submitted that the right of the innkeeper is co-extensive with the obligation which the law casts upon him to receive the guest and any goods he may bring with him to the inn: and he adverted to the distinction taken by Parke, B., in Broadwood v. Granara,-the case of a piano-forte *lent to a professional pianist whilst staying as a guest at an inn, the innkeeper well knowing it to be the plaintiff's property,-where the learned judge said: "It is not necessary

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