*The affidavit of the attorney of Mr. Kennedy stated that he was [*73 present on the 24th of November instant in the court of Vice-Chancellor Kindersley, and heard him give judgment in the matter of an application to dissolve an injunction restraining the official assignee and manager under the adjudication of bankruptcy against the defendants from interfering with the assets of the said bank, and also in the matter of another application for an order directing the official manager appointed under the order absolute for winding up the said bank, to deliver over the assets of the said bank to the said official assignee: That his Honour dissolved the ex parte injunction which had been granted on the application of the said official manager, restraining the interference of the said official assignee and messenger with the said assets, and ordered that the said official manager should deliver over the said assets (less the expense incurred in collecting those already realized) to the said official assignee: That, although the effect of his Honour's judgment was substantially to assert the validity of the bankruptcy for the purpose of distributing the existing assets of the estate, his Honour observed that the order absolute for winding up was good and subsisting, and that the official manager would be the party to receive the calls which would have to be made upon the contributories: And that the deponent had no doubt that the assets of the bank already and to be collected, would be speedily distributed, and that all necessary calls for the satisfaction of the creditors of the said bank would be made with as little delay as possible.

1. The material point to consider in this case is, whether or not the court has any discretion,-whether they are bound to permit the execution to go against a shareholder, the judgment-creditor having performed all the conditions prescribed by the statute, or whether they may look at all the circumstances of the case, to see that it is a fit one for [*74 their interference in this summary way. It appears that the affairs of the bank are in course of winding up, and that already a large sum of money is in the hands of the official manager. The 9th section of the act for the regulation of joint stock banks, 7 & 8 Vict. c. 113, enacts that "every judgment, decree, or order of any court of justice in any proceeding against the company, may be lawfully executed against, and shall have the like effect on, the property and effects of the company, and also, subject to the provisions thereinafter contained, upon the person, property, and effects of every shareholder and former shareholder thereof, as if every individual shareholder and former shareholder had been by name a party to such proceeding." The 10th section enacts. that "it shall be lawful for the plaintiff to cause execution upon any judgment, decree, or order obtained by him in any such action or suit against the company, to be issued against the property and effects of the company; and, if such execution shall be ineffectual to obtain satisfaction of the sums sought to be recovered thereby, then it shall be lawful

for him to have execution, in satisfaction of such judgment, decree, or order, against the person, property, and effects of any shareholder, or, in default of obtaining satisfaction of such judgment, decree, or order from any shareholder, against the person, property, and effects of any person who was a shareholder of the company at the time when the cause of action against the company arose:" then follows a proviso limiting the extent of the liability of former shareholders. [WILLIAMS, J.-The utmost diligence of the judgment-creditor could not obtain satisfaction out of the moneys in the hands of the official manager: they could not be reached by an execution. WILLES, J., referred to the language of Alderson, B., in Thompson v. The Universal Salvage Company, 3 Exch. 310, 319,† where that learned judge said, "It would be *75] very unjust, and not a fair construction *of the 7 & 8 Vict. c. 110 (s. 68), that a creditor should proceed against an individual shareholder, when he has a right to go against the assets of the whole company. When he has done so without success, he may again resort to the individual." Lush.-In a case in the Court of Exchequer in this term,-Hill v. The London and County Insurance Company, 1 Hurlst. & Norm. 398,t-those expressions are repudiated. COCKBURN, C. J.The real question is, whether the 13th section gives us any discretion. That section enacts, "that, in the cases 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 such court or judge to make absolute or discharge such rule, or allow or discharge such motion (as the case may be), and to direct the costs of the application to be paid by either party, or to make such order therein as to such court or judge shall seem fit." "Provided that any order made by a judge as aforesaid may be discharged or varied by the court on application made thereto by either party dissatisfied with such order: provided also, that no such motion shall be made nor summons granted for the purpose of charging any shareholder or former shareholder, until ten days' notice *there*76] of shall have been given to the person sought to be charged thereby." The execution is to issue "by leave of the court:" but the question is, whether that means any more than that the court must be satisfied that proper endeavours have been made to put the fi. fa. in force

against the effects of the company. Can we enter into the merits of the question, and take upon ourselves to determine that this or that course will be more expedient for the general benefit of the creditors of the bank?] In a case in the Court of Queen's Bench in the present term,-Palmer v. The Justice Assurance Society, 28 Law Times, 120,that court assumed to have a discretion under the 7 & 8 Vict. c. 110, s. 68, and enlarged the rule for a week; Lord Campbell saying, that, if it was then made to appear that there was a prospect of satisfaction being speedily obtained under the winding-up act, they would enlarge the rule still further. But, the affidavit not being satisfactory in that respect, the rule was ultimately made absolute. Here, the affidavits show the strongest possible grounds for inducing the court to decline to permit the creditor to pursue this very stringent remedy. The statute should receive a large and liberal construction. [COCKBURN, C. J.— It certainly does seem very unjust that one creditor should thus be permitted to complicate this already more than sufficiently intricate matter. But the language of the statute seems to me to leave us no discretion. I fear we have nothing more to do than to see that the execution-creditor has complied with all the conditions which the legislature has thought fit to impose upon him. Having done that, the execution is matter of right.] The 182d section of the Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106, (a) makes the proof of a debt an election not to *proceed against the bankrupt by action. In Geikie v. Hew[*77 son, 4 M. & G. 618, 5 Scott, N. R. 484, pending an action of debt by A. against B., as acceptor of a bill for 4687. 18. 9d., and for 1500l. for goods sold and delivered, &c., A. filed an affidavit in the Court of Bankruptcy, under the 1 & 2 Vict. c. 110, s. 8, stating B. to be indebted to A. in 468l. 18. 9d. for goods sold and delivered, &c., and also upon a bill for 4687. 18. 9d. Afterwards, on the 11th of February, B., with C. and D. as his sureties, gave a bond to A. conditioned for the payment of such sum as should be recovered in the action for the alleged debt, or for the render of B. On the 15th of March a fiat in bankruptcy was awarded against B. On the 21st of March, A. signed judgment against B. for 13321. 198. 6d. On the 5th of April, A. proved under the fiat for 8647. 128. 9d., being the amount of the judgment debt, excluding the 4687. 18. 9d. On the 12th of April, a ca. sa. against B. was lodged with the sheriff. On the 30th of May, A. brought an action against C. and D. on the bond. It was held that the proof under the fiat was an election to relinquish the action against B., and that B. being entitled to be discharged if rendered, C. and D. were entitled to have the proceedings stayed. This raises a very important question,

(a) "That no creditor who has brought any action or instituted any suit against any bankrupt in respect of a demand prior to the bankruptcy, or which might have been proved as a debt under the bankruptcy, shall prove a debt under such bankruptcy or have any claim entered upon the proceedings, without relinquishing such action or suit; and the proving or claiming a debt under a fiat or petition for adjudication of bankruptcy by any creditor, shall be deemed an election by such creditor to take the benefit of such fiat or petition with respect to the debt so proved or elaimed."

and one which the party proceeded against ought to have an opportunity of raising by plea to a scire facias. [Lush.-By the 10th section of the 7 & 8 Vict. c. 111,(a) the judgment-creditor is obliged *to *78] prove under the fiat against the company, and it is expressly provided that such proof shall not prejudice his right to have recourse against the members.] The 12 & 13 Vict. c. 106, s. 182, being subsequent to that provision, must be taken to have repealed it. There is, therefore, no longer any necessity for proving the demand under the fiat. And there is no injustice in this: the principle of the bankrupt law is, that there shall be an equal distribution of the effects of the bankrupt amongst all his creditors. [WILLES, J.-The 182d section of the 12 & 13 Vict. c. 106, is a mere re-enactment, in the same words, of that part of the 6 G. 4, c. 16, s. 59: it is not therefore a provision enacted since the Joint Stock Companies Winding-up Act, 1844, and consequently does not *repeal it. CROWDER, J.-What answer *79] would you have to a scire facias, assuming your reliance upon the 182d section of the 12 & 13 Vict. c. 106, to be unfounded?] An appeal to the equitable discretion of the court.

3. Then, the 13th section of the 7 & 8 Vict. c. 113, requires, that, previously to the application for execution, ten days' notice shall be given to the person sought to be charged thereby." Now, the affidavit of service states that the notice was served by delivering it to Mr. Kennedy's footman, at his residence,-not stating that the footman was desired to give the paper to his master,-or that any subsequent inquiry was made of him as to whether he had done so or not; nor is shown to have come to his hands. In Esdaile v. Smith, 18 Law Journ. Exch. 120, a rule for a scire facias to have execution against a member of a joint stock company, was served on the father, sister, and son of the defendant, at the defendant's residence; and it was held not to be good service. [WILLES, J.-Personal service was not necessary,Doe d. Griffiths v. Marsh, 4 T. R. 464: a footman is of all persons the most proper person to whom to deliver a notice that is intended for his

(a) Which enacts "that no action, suit, or other proceeding by any creditor or creditors of any such company or body, shall, so far as concerns or may be necessary for the recourse of such creditor or creditors against the person, property, or effects of any member or members thereof for the time being, or any former member or members thereof, be deemed to prejudice or in any manner affect the right of such creditor or creditors to sue out or prosecute a fiat against such company or body, or his or their right to prove or claim under any fiat against such company or body any debt or demand remaining unsatisfied; and that no such fiat, or proof or proceeding thereunder, shall be deemed to prejudice or in any manner affect the right of any creditor or creditors of such company or body to institute or maintain any action, suit, or other proceeding, so far as concerns or may be necessary for the recourse of such creditor or creditors against the person, property, or effects of any member or members thereof for the time being, or any former member or members thereof: Provided always, that nothing herein contained shall prevent remedy against copartners: Provided also, that no execution in respect of any debt or demand provable under the fiat against any such company or body adjudged bankrupt, shall be issued against the person, property, or effects of any member or members for the time being of such company or body, or any former member or members thereof, until after such debt or demand shall have been proved under such fiat, nor shall any such execution be issued after the appointment of a receiver in manner hereinafter mentioned, without leave of the High Court of Chancery."

master. CROWDER, J.-It is not pretended that the notice did not reach the hands of Mr. Kennedy.] The giving of notice is a condition imposed by the act: the party moving should at least be in a position to prove facts sufficient to induce a belief that the notice came to the hands of the person sought to be charged ten days before the motion.

Lush and Beasley, in support of the rule.-The judgment-creditor has a right given to him by the statute, and, having done all that the statute requires him to do as the condition upon which he is to be entitled to exercise that right, this court has no power to deprive him of it. The 9th section of the 7 & 8 Vict. c. 113, enacts that every judgment, decree, or order of any *court of justice in any pro[*80 ceeding against the company, may be lawfully executed against, and shall have the like effect on, the property and effects of the company, and also, subject to the provisions hereinafter contained, upon the person, property, and effects of every shareholder and former shareholder thereof, as if every individual shareholder and former shareholder had been by name a party to such proceeding." The legislature thus shows itself scrupulously anxious to preserve the rights of creditors. Then comes the 10th section, which enacts that it shall be lawful for the plaintiff to cause execution upon any judgment, decree, or order obtained by him in any such action or suit against the company, to be issued against the property and effects of the company; and, if such execution shall be ineffectual to obtain satisfaction of the sums sought to be recovered thereby, then it shall be lawful for him to have execution in satisfaction of such judgment, decree, or order, against the person, property, and effects of any shareholder, or, in default of obtaining satisfaction of such judgment, decree, or order from any shareholder, against the person, property, and effects of any person who was a shareholder of the company at the time when the cause of action against the company arose.' Then follows in s. 13 the machinery by means of which that right is to be enforced,-" In cases 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 [*81 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 such court or judge to make absolute or discharge such rule, or allow or dismiss