any time after, have any property, goods, or chattels whatever beyond their books, and that any execution against them would be ineffectual; that all due diligence and means had been used to obtain satisfaction of the said judgment from the said company by execution against their property and effects; that the plaintiff's attorney had been solicitor to the company, and that the deponent, as his clerk, attended to and transacted much of the legal business thereof, and thereby became well acquainted with the position and circumstances of the company; that Mr. Richards was, as appeared by the register, owner of fifty shares in the company, upon which there remained to be paid up 5l. per share; and that he had been duly served with notice of this application.

Raymond showed cause.-The affidavit upon which this rule was obtained is not sufficient to satisfy the court that due efforts have been made to obtain satisfaction from the property of the company. The deponent does not show that any application whatever has been made at the principal, and for anything that appears the only, office of the company he states that he has made inquiries; but not there. [CRESSWELL, J.-Is it not a sufficient primâ facie denial of their having any available property? Possibly it might be answered.] The case of Hitchins v. The Kilkenny and Great Southern and Western Railway Company, 10 C. B. 160 (E. C. L. R. vol. 70), shows that a mere return of nulla bona amounts to nothing. The affidavit here does not carry the case a step further than did that which, in King v. The Parental Endowment Assurance Company, 11 Exch. 443,† was held insufficient. In that case, an application under the 7 & 8 Vict. c. 110, by a judgment-creditor of a joint stock company, for *leave to *112] issue execution against a shareholder, was founded on affidavits, which stated that a writ of fi. fa. was issued by the plaintiff against the goods of the company, and placed in the hands of the sheriff, to be executed; that the sheriff returned nulla bona; that the chief office of the company was closed, and that no business, to the best of the deponent's belief, was carried on there; and that he believed that any execution against the property and effects of the company would be wholly unavailing and it was held, that the facts disclosed did not show that the plaintiff had used due diligence to obtain satisfaction of his judgment by execution against the company, since there was no affidavit of the sheriff's officer showing what he had done under the writ. Parke, B., there says: "The court ought not to allow execution to issue against a shareholder, unless they are satisfied that due diligence has been used to obtain satisfaction of the judgment by execution against the company. Now, what has been done for that purpose is a matter peculiarly within the plaintiff's knowledge; and therefore he is bound to show to the court that he has used all reasonable exertions. Here, the principal objection is, that, although a writ of fieri facias issued, it does not appear what was done under the writ. It may be that the return of

nulla bona was at the instance of the plaintiff himself. The affidavits are not sufficient to satisfy me that all has been done which might have been done, and, consequently, due diligence has not been used. With respect to the case of Thompson v. The Universal Salvage Company, 3 Exch. 310,† it may be observed, that it was not objected that the affidavits were insufficient, or probably the rule would have been discharged on that ground." [CRESSWELL, J.-Nixon v. The Kilkenny and Great Southern and Western Railway Company, 1 Hurlst. & N. 47,† is more like the present case. There, an application under this *act was founded upon affidavits which stated, that a fi. fa. issued [*113 against the company and was returned nulla bona, and that the company had not at the date of the judgment, or since, any lands, chattels, &c., in England, Ireland, or elsewhere, whereon the plaintiff could levy the amount of the judgment, or any part thereof: and it was held sufficient. Pollock, C. B., there distinguishes the case of King v. The Parental Endowment Assurance Company, saying,-There, the affidavits stated that a fi. fa. issued, which was returned nulla bona, that the chief office of the company was closed, and that the deponent believed that any writ of execution against the property and effects of the company would be wholly unavailing. But there was no affidavit, as in this case, that the company had no property whatever, real or personal, on which execution could be levied."] The statute authorizes an execution against the shareholder only "if any execution shall have been issued against the property or effects of the company, and if there cannot be found sufficient whereon to levy such execution." The court ought to be satisfied that due diligence has been used before the sci. fa. is issued, seeing that the shareholder has no means of raising upon the record the question whether or not they have wisely exercised the discretion given them by the statute. [CRESSWELL, J.-The deponent shows what means he had of becoming acquainted with the position and circumstances of the company, and he distinctly swears that he believes they have no property or effects, and that any execution against them would be ineffectual.] He does not make any independent statement of his belief to that effect, but merely states, that, from the inquiries he has made, he believes it. [CRESSWELL, J.-He shows his means of knowledge.]

V. Williams was not called upon to support his rule. *PER CURIAM.-We think, upon the authority of Nixon v. The Kilkenny and Great Southern and Western Railway Company, the affidavit is sufficient.

[*114

Rule absolute.

April 28. A similar rule had also been obtained against one John Widdecombe, upon a similar affidavit.

W. R. Cole now showed cause, upon an affidavit of Mr. Widdecombe, N. S., VOL. II.—7

stating, that, before the time of recovering the judgment, he, as director and shareholder of the said company, and for and on behalf of the company, had paid out of his own proper moneys for and on behalf of the company, and allowed the said company in account a much larger sum than the amount of the 5l. per share alleged in the affidavit upon which the rule was moved not to have been paid up by him on his said shares, and that the company were then and still remained indebted to him in a sum far beyond the said 57. per share alleged not to have been paid up by him, viz. in a sum of 1937. 18. 3d., and that the company had no claim whatever on him in respect of the said 57. per share on his said shares on any account whatever; and that, in the manner aforesaid, the whole amount of his said shares had been paid up by him, and that he had and still had a claim on the company beyond the amount of his said shares in the said company to the said amount of 1937. 18. 3d., and which he had been and still was unable to obtain from the company.

The 36th section of the 8 & 9 Vict. c. 16, enacts, that, if any execution, either at law or in equity, shall have been issued against the property or effects of the company, and if there cannot be found sufficient whereon to *levy such execution, then such execution may *115] be issued against any of the shareholders, to the extent of their shares respectively in the capital of the company not then paid up: Provided always that no such execution shall issue against any shareholder except upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted, made upon motion in open court, after sufficient notice in writing to the persons sought to be charged; and upon such motion such court may order execution to issue accordingly." The question is, whether the court will, in the exercise of their discretion, allow execution to issue under the circumstances disclosed in Mr. Widdecombe's affidavit. [COCKBUrn, C. J.-The judgment-creditor has a right to have execution against the shareholder to the extent of his shares not paid up. What answer is it for the shareholder to say, "The company is indebted to me, as well as to you?" The one party has a judgment against the company; the other a mere right of set-off.] The creditor's right is subject to the discretion of the court. [COCKBURN, C. J.—I do not think this is a matter to be discussed upon affidavit. CROWDER, J.-Payment of a call is a clear and definite thing. That which you wish to introduce is open to a great deal of difficulty.] The averments in the scire facias, that the party is a shareholder, and as to the amount of his shares unpaid, are traversable Devereux v. The Kilkenny and Great Southern and Western Railway Company, 20 Law Journ. Exch. 37, 5 Exch. 834.† V. Williams, contrà, was not called upon.

COCKBURN, C. J.-I am of opinion that this rule should be made absolute. The 36th section provides, that, where execution upon a

judgment against a joint stock company proves ineffectual, recourse may be had *by execution, with the leave of the court, against shareholders to the extent of their shares not paid up. [*116 I agree that the court is not a mere instrument to make the order: but I think it is clear that the legislature intended to give an effectual and substantial remedy against the shareholder to the extent of his shares not paid up; and, unless we see that manifest injustice will be done, we are bound to afford the creditor the remedy intended by them. It may be that the shareholder may have some defence upon the scire facias: but I see no ground upon which we can at this stage interpose between the creditor and the rights which the law has given him. The rest of the court concurring,

Rule absolute.

BENNS v. MOSLEY and COBBETT. May 4.

The courts have no power to issue writs of habeas corpus to bring up prisoners for the purpose of moving for or showing cause against rules,-there being no writ known to the law which is applicable to such a purpose.

THIS was an ejectment which was tried before Williams, J., at the first sitting at Westminster in this term, when a verdict was found for the plaintiff.

Mrs. Cobbett, the wife of one of the defendants, moved for a writ of habeas corpus to be directed to the keeper of the Queen's Prison, commanding him to bring up her husband into this court for the purpose of enabling him to move in person for a new trial. [COCKBURN, C. J.-I very much doubt whether we have any power to grant a habeas corpus for such a purpose.] It is in the discretion of the court, (a) and has repeatedly been granted.

[*117

*COCKBURN, C. J.-We have communicated with the judges of the Courts of Queen's Bench and Exchequer, and we all concur in thinking, that, although a practice had at one time prevailed of granting such applications as the present, that practice was erroneous. Indeed, it is long since those two courts came to the resolution not to grant them. In Ford v. Nassau, 9 M. & W. 793,† 1 Dowl. N. S. 631, where an application was made for a writ of habeas corpus to bring up a party in custody under attachments, to enable him to move to set them aside, Parke, B., said: "I am not aware of any precedent for such an application. In The Attorney-General v. Hunt, 9 Price, 147, this court refused to grant a habeas corpus to enable a defendant in an information who was confined in a county gaol, under sentence of another court, for libel, to attend in court at Westminster, and conduct his

(a) See Clark v. Smith, 3 C. B. 984 (E. C. L. R. vol. 54), and Ford v. Graham, 10 C. B. 369 (E. C. L. R. vol. 70).

defence in person; and, in Rex v. Parkyns, 3 B. & Ald. 679 (E. C. L. R. vol. 5), the Court of King's Bench refused a similar application, where the object was to show cause against a rule for a criminal information:" and he directed the counsel to look into the authorities, and apply again. On a subsequent day, the counsel having referred to a case of The Attorney-General v. Cleave, 2 Dowl. P. C. 668, where the Court of Exchequer had granted a writ of habeas corpus to bring the defendant into court for the purpose of enabling him to defend an information filed against him for selling unstamped papers, the learned Baron said, "The difficulty is, to see in what form the writ is to be. A writ of habeas corpus is issued for some specified purpose, either ad testificandum, or ad respondendum, as the case may be. There is no general form for a writ of habeas corpus: and, as there is no authority for doing this, we cannot grant the application." It is plain, therefore, that we have no power to do that which is asked.

Writ refused.

*118]

*In the Matter of the Acknowledgment of ESTHER, the Wife of WILLIAM ANDERSON. May 1.

Upon a motion for an order to enable a married woman to execute a conveyance without her husband's concurrence, under the 3 & 4 W. 4, c. 74, s. 91, the court declined to receive an affidavit in which she was described as "wife or widow of W. A.”

J. ADDISON moved for an order under the 3 & 4 W. 4, c. 74, to enable Esther Anderson by deed or surrender to convey certain premises to which she was separately entitled, without the concurrence of her husband.

The affidavit was sufficient in all respects, save that the deponent described herself as "the wife or widow of William Anderson, late of Leeds, in the county of York."

We

CRESSWELL, J.-The description of the deponent will not do. If she is a widow, she does not need the assistance of the statute. have already on more occasions than one decided that such a description will not do see In re Mary Noy, 7 Scott, N. R. 434, and Ex parte Lydia Sparrow, 12 C. B. 334 (E. C. L. R. vol. 74). The affidavit must be amended, and re-sworn.

An amended affidavit having been produced, the rule was granted.

Fiat.