1840. BROWN

formed, however, by Lord Chief Justice Tindal, that he Exch. of Pleas, on one occasion discharged a person arrested in a county palatine for a sum under £50, but that he afterwards entertained doubts as to the propriety of that course.

We are of opinion, therefore, that the sheriff was bound to execute the writ in this case, and this rule must consequently be discharged, but, under the circumstances, without costs.

Rule discharged without costs.

บ.

M'MILLAN.

THIS

HARWOOD V. LAW, Public Officer, &c.

Where a plainjudgment a

tiff obtains

gainst the pub

stat. 7 Geo. 4,

was an action against the defendant, as the public registered officer of the Imperial Bank of England; and judgment having been signed for the plaintiff for 147. 178., fic officer of a the amount of the damages and costs, execution was issued joint-stock banking cothereon against the defendant, and he was detained in partnership, custody for that sum at the suit of the plaintiff. Cresswell pursuant to had obtained a rule, calling upon the plaintiff to shew c. 46, s. 9, he cause why the execution should not be set aside, and the cution against defendant discharged out of custody, on the ground the execution could not issue without a previous facias. The defendant did not, in his affidavit in support of the rule, deny that he was a member of the Company.

that

scire

W. H. Watson shewed cause.-No scire facias was necessary in this case, the defendant being not only the public registered officer, and as such a party to the record, but also, as it must be assumed, a member of the company. The question depends upon the construction to be put on several of the clauses of the Banking Copartnership Act, 7 Geo. 4, c. 46. The 4th section impliedly requires that the two public registered officers, who are by sect. 9 to sue and be sued on behalf of the Company, shall be members of the

may issue exe

the defendant

without first

suing out a

scire facias.

1840.

HARWOOD

v.

LAW.

Exch. of Pleas, copartnership. The 9th section enacts, that all actions and suits, &c. to be commenced on behalf of the copartnership shall and lawfully may be commenced and prosecuted in the name of one of the public officers for the time being, as nominal plaintiff; and all actions or suits, &c. to be commenced against the copartnership, shall and lawfully may be commenced and prosecuted against one of the public officers," as the nominal defendant for and on behalf of such copartnership." Then sect. 12 provides, that all judgments recovered against any public officer of the copartnership "shall have the like effect and operation upon and against the property of the copartnership, and upon and against the property of any member thereof, as if such judgments had been recovered or obtained against such copartnership;" and sect. 13, that execution upon any judgment obtained against the public officer may be issued against any member or members for the time being of the copartnership. There is nothing in these clauses to exempt the defendant from liability in his character of a member of the Company, or to prevent the judgment from operating in the ordinary way against the registered officer, as the party to the record, if, like the present defendant, he is also a member of the copartnership. The defendant might have pleaded to the action that he had ceased to be a member of the Company, if the fact were so. In a recent case of Rawlinson v. Nuttall (a), it appeared that the action was commenced against the defendant, as the public officer of a banking copartnership, on the 3rd of August, 1839. On the 22nd of August he became a bankrupt; in October following he ceased to be the public officer, but took no steps to have his name removed from the record; on the 10th of December judgment was entered up against him, and execution issued thereon, under which he was arrested; and having paid the debt and costs, under protest, in order

(a) Not reported.

1840.

HARWOOD

v.

LAW.

to procure his liberation, he applied to this Court to set Exch. of Pleas, aside the judgment and execution, and to have the money repaid to him; but the application was refused, on the ground that, by taking no step to remove his name from the record, he had admitted himself to be a member of the Company, and as such liable to the execution. That case is expressly in point. He also referred to Harrison v. Timmins (a), and Wood v. Marston (b).

Cresswell, contrà.—The plaintiff was not entitled to issue execution against this defendant, without first suing out a scire facias. Having elected to avail himself of the mode of proceeding given by the statute, instead of proceeding according to the course of the common law, as he might have done (for the words "shall and lawfully may," in the 9th section, cannot be considered as imperative on the plaintiff), he must proceed throughout according to the statute; he cannot engraft a common law execution upon a statutory judgment. A judgment against the public officer can have effect only against those who are members of the copartnership at the time of judgment signed. Then, by sect. 13, execution may issue thereon against members for the time being; or, if ineffectual in such case, then against those who were members at the time when the contract was entered into, or before it was executed, or at the time of the judgment obtained, by leave of the Court. Now, although the record would undoubtedly be strong evidence to shew that the defendant was a member of the copartnership at the time of judgment obtained, it would not necessarily prove that he continued such up to the time when execution issued. At all events, that is not a question to be tried upon affidavits, but ought to be determined by a jury upon a scire facias. It has already been decided that execution cannot issue against a member of the copartnership, who is not a party

1840.

HARWOOD

Exch. of Pleas, to the record, without a scire facias (a); and the practice ought to be the same with regard to the public officer, who is sued merely as a nominal defendant by virtue of the statute, and has no interest in the suit beyond that of the other members of the copartnership.

ย. LAW.

Cur. adv. vult.

On the following day, the Court delivered judgment.

Lord ABINGER, C. B.-This was an application for the discharge of the defendant out of custody, on the ground that, upon the proper construction of the act of Parliament for regulating joint-stock banking companies, the defendant, who is sued as the registered officer of the Imperial Bank of England, is not liable to be taken in execution, unless he was a member of the copartnership at the time when the execution issued. Mr. Cresswell contended that he must be shewn to be such by scire facias, in conformity with the decision of this Court, that that mode of proceeding is necessary in cases where the judgment is obtained against the registered officer as the nominal defendant, and it is sought to have execution against some other member of the Company, not a party to the record. It is to be observed, that the defendant in this case neither states that he is not a member of the company, nor alleges any other facts to shew to the Court that he is not the proper object of execution upon this judgment. As he has not done so, the necessity for a scire facias does not seem to arise. When the Courts direct a scire facias to issue, it is only with the view of rendering their own records consistent. The first case in which a question of this kind arose was that of Bartlett v. Pentland (b), where the plaintiff, having obtained judgment against the secretary of the St. Patrick's Assurance Company, took out execution against another

(a) Cross v. Law, 6 M. & W. 217.

(b) 1 B. & Ad. 704.

1840.

HARWOOD

ย.

LAW.

member of the company, (an alderman of Dublin, who hap- Exch. of Pleas, pened to be in London on some public business,) without first obtaining the leave of the Court to enter a suggestion on the record. The Court on that occasion said, that some suggestion ought to be put upon the record, in order to make a party liable to the execution, who was not a party to the record at the time of the judgment. Since then, the proper mode of doing this has been taken more fully into consideration, and the Courts have decided, I think rightly, that it must be by writ of scire facias. A suggestion on the record would indeed have the same effect, a scire facias does nothing more, and they may both be traversed; but the latter is an original and well understood process for the purpose. A scire facias, however, is resorted to only for the specific purpose of making the judgment and execution consistent with each other; since otherwise there would be judgment against A. and an execution upon against B., which would render the record absurd and inconsistent: but the scire facias makes the record technically correct, and the party has the opportunity of contesting whether he is really liable to the execution or not. But it appears to the majority of the Court, that if we were to accede to the argument urged on the part of the defendant, and hold a scire facias necessary in this case, the greatest inconvenience would follow; for as the parties liable to the execution in the first instance are those only who are members of the copartnership at the time of the execution, and the scire facias would only establish that the defendant was such at the time of the judgment, no execution could issue against him until a fresh scire facias was issued, to shew that he was a member at the time execution issued: so that scire facias after scire facias would be necessary. It never could have been the intention of the legislature to introduce such an inconvenience as this, which would certainly be the consequence if the act of Parliament were to be interpreted as is contended for by Mr. Cresswell.