1843.-Barker v. Buttress. or being a member, before or at the time of the bills or notes being payable, or being such member at the time of the borrowing, owing, or taking up of any sum or sums of money upon any bills or notes, by the corporation or copartnership, or while any sum of money on any bills or notes is owing or unpaid, or at the time the same became due from the corporation or copartnership, any agreement, covenant, or contract to the contrary notwithstanding." The 9th section provides, that the copartnerships "shall and lawfully may" sue and be sued in the name of the registered "public officer." The 10th section is as follows:-"That no person or persons, or body or bodies politic or corporate, having or claiming to have any demand upon or against any such corporation or copartnership, shall bring more than one action or suit, in case the merits shall have been tried in such action or suit, in respect of such demand; and the proceedings in any action or suit by or against any one of the public officers, nominated as aforesaid, for the time being of any such copartnership, may be pleaded in bar of any other action or actions, suit or suits, for the same demand, by or against any other of the public officers of such copartnership." By the 11th section, decrees in equity against the public officer are to have the like effect against the property of the copartnership, and the persons and property of the members, as if such members' were parties to the suit; and by the 12th section, judg ments and decrees are to have the same effect on the pro[*136] perty and *members as if such judgment had been recovered against the copartnership. The 13th section is as follows:-"That execution upon any judgment, in any action obtained against any public officer for the time being of any such corporation or copartnership carrying on the business of banking under the provisions of this act, whether as plaintiff or defendant, may be issued against any member or members for the time being of such corporation or copartnership; and that in case any such execution against any member or members for the time being of any such corporation or copartnership shall be ineffectual for obtaining payment and satisfaction of the amount of such judgment, it shall be lawful for the party or parties, so having obtained judgment against 1843.-Barker v. Buttress. such public officer for the time being, to issue execution against any person or persons, who was or were a member or members of such corporation or copartnership at the time when the contract or contracts, or engagement or engagements in which such judgment may have been obtained, was or were entered into, or became a member at any time before such contracts or engagements were executed, or was a member at the time of the judg ment obtained. Provided always, that no such execution as last mentioned shall be issued, without leave first granted, on motion in open court, by the court in which such judgment shall have been obtained, and when motion shall be made, on notice to the person or persons sought to be charged, nor after the expiration of three years next after any such person or persons shall have ceased to be a member or members of such corporation or copartnership." The facts which gave rise to this cause were shortly as follows:-Mr. Barker, the testator in this case, died *on [*137] the 16th of March, 1839. At the time of his death, he was a member of a banking company established under the above act, called the "Imperial Bank of England,"(a) and he had been a registered member since November, 1838. Shortly after his death, viz. on the 30th of April, 1839, the the bank stopped payment, and was found insolvent. In June, 1839, John Wood recovered a judgment against the registered public officer of the bank for 46007.; in September following, T. L. Rushton obtained a similar judgment for 20017.; and on the 8th of August, 1840, Nicholas Wood obtained a similar judgment for 24,8191. The principal part of these sums was, at the death of the testator, due from the company, as indorsees of bills, and on a banking account. On the 20th of July, 1842, this suit was instituted by legatees, for the administration of the testator's estate; and on the 20th of December, 1842, a decree was made, referring it to the master, in the usual form, to take an account of debts, funeral expenses, and a The particulars relating to this company will be found in Wallworth v. 4 Myl. & Cr. 619. Holt, 1843.-Barker v. Buttress. legacies of the testator. The above named creditors of the bank went in under the decree, and claimed to be creditors of the testator, but the master having rejected their claims, two of them took exceptions to his report, and the third presented a petition, praying that the petitioner might be admitted to prove his debt, and that the master might be directed to admit the petitioner to prove, or for liberty to except to the report. Mr. Temple aad Mr. Lovat, in support of the exceptions. [*138] *Mr. Bazalgette in support of the petition, argued as follows:-The testator in his lifetime was liable to the claimants, and nothing has since happened to release his assets from the obligation. Though, at law, the liability of a party upon a joint debt ceases on his death, by surviving to the joint contractors, yet, in equity, the estate of the deceased partner continues liable. Devaynes v. Noble, (Slech's case,)(a) Winter v. Innes, (b) Gray v. Chiswell ;(c) for every joint loan is in equity considered joint and several, Thorpe v. Jackson.(d) It is not necessary in proceeding against the assets of the deceased partner to prove that the surviving partner is insolvent. Wilkinson v. Henderson.(e) The testator, being a member at the time of the contract, became, by the 13th section, liable to the claimants, and his assets are still liable, after payment of his separate debts. Again, the creditor's remedies are not limited to those given by the statute. The testator was a partner in this concern, and by the ordinary rules of this court, independent of the statute, the claimants are entitled to come in under the decree and prove their debts. It was so held in Cowell v. Sikes, (g) decided by Lord Eldon on appeal. It has been held also, that a creditor of such joint stock bank has the usual remedies in bankruptcy, against the members, and may sue out a fiat against the individual mem (a) 1 Mer. 539, and 2 R. & M. 495. (c) 9 Ves. 118. (d) 2 Y. & C. (Ex.) 553. (e) 1 Myl & K. 582. (g) 2 Russ. 191. 1843.-Barker v Buttress. bers of the concern without proceeding against the public officer.(a) *There being a decree for the administration of the es- [*139] tate, all the claims upon that estate must be ascertained and provided for, before the residuary legatees can be permitted to receive any portion of the assets. The master must therefore take all the necessary accounts; and if the reference be not already sufficiently extensive, the court will supply the defect of his authority; Paynter v. Houston,(b) Baker v. Martin.(c) Mr. Pemberton Leigh, Mr. Turner, and Mr. G. L. Russell, for the plaintiff; and Mr. Kindersley, and Mr. Mylne, Mr. Teed and Mr. Bayley, for the defendants, contra. The statute has created new rights for the benefit of the creditors of banking companies, and has subjected its members to new liabilities; in return it has imposed a limitation on the liability of the members, and required that those remedies alone which are thereby given, and no others, "shall" be pursued. The remedies given by the statute are in lieu and substitutional for the common law remedies, and not additional or cumulative ; Steward v. Greaves, (d) There, Baron Parke says, "We are all of opinion that the creditors of a company so established, and having a public officer, have no remedy against the individual members as at common law. And we are of this opinion upon the words of the ninth section, giving the remedy against the public officers, and upon the whole purview of the act. The words of the section are, that 'all actions against the copartnership shall, and lawfully may, be commenced, institu ted, and prosecuted against one or more of the public [*140] officers, nominated as before mentioned as the nominal defendant.' These words, according to their ordinary import, are obligatory, and ought to have that construction, unless it (a) Ex p. Wood, 1 M. D. & De G. 92, and 2 M. D. & De G. 282. (b) 3 Mer. 297. (c) 5 Sim. 380. (d) 10 Mee. & W. 711. 1843.-Barker v. Buttress. would lead to some absurd or inconvenient consequence, or would be at variance with the intent of the legislature, to be collected from other parts of the act. But this construction is manifestly reasonable, and consistent with the context, and in accordance with the intent of the framers of the act, to be collected from every part of it." And after showing that the liability created by the statute was very different from that which existed independently of it, he says: "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." And his Lordship afterwards adds, "We are of opinion, therefore, that this act of parliament meant to give one remedy only, and that against the company in the name of its public officer." A similar principle was acted on in the cases of The Dundalk Western Railway Company v. Tapster,(a) and Harrison v. Timmins.(b) Under the provisions of this act, the assets of the testator are in no way liable. First, because the executors and administrators of parties are not made liable by the act; and, secondly, because the testator had ceased to be a member three years before any proceedings were taken by the claimants against the executors. Again, if there were any liability, then it is a secondary [*141] liability. The remedy must be obtained in the *manner pointed out by the thirteenth section, upon an application to the court by motion, and by scire facias, Ransford v. Bosanquet ;(c) on which application it must be shown that bona fide endeavors have been used to obtain an available execution against the persons who were members at the date of the judgment, and who are primarily liable; (d) Eardley v. Law;(e) Harwood v. Law.(g) Lastly, the tenth section provides that no claimant against the company shall bring more than one action or suit in respect of (a) 1 Q. B. Rep. 670. (c) 12 Adol. & E. 813. (d) Sect. 13. (e) 12 Ad. & E. 802. |