enables execution to issue against any member for the time being of such copartnership, it was held that the words "for the time being" meant "at the time the execution issued." -He also referred to an unreported case of Devereux v. Emery (a). Unthank, for the plaintiff.-The pleas are bad and the replication good. By the latter part of the 36th section, the register of shareholders is made accessible to creditors, in order that they may ascertain the persons against whom they are to pursue their remedy. That shews that the word "shareholders," in that section, means the persons whose names are on the register of shareholders at the time the execution against the property and effects of the Company proves ineffectual; that is, at the time of the return of nulla bona. The language of the 13th section of the Banking Copartnership Act is materially different from that of the 36th section of the Act in question. Under those Acts a scire facias is necessary: Hitchins v. The Kilkenny and Great South Western, &c. Railway Company (b); but under the 7 & 8 Vict. c. 110, s. 68, execution may issue by leave of the Court without any suggestion or scire facias. This is not the ordinary proceeding by scire facias, but a writ of scire facias quare executionem non, founded on the return of nulla bona, and preceded by notice and motion in Court. At common law the return of nulla bona was notice to all persons sought to be affected by it; and under this Act, after such return, a shareholder has no right to transfer his shares. The word "then," in the 36th section of the 8 & 9 Vict. c. 16, points to the time when persons are liable as shareholders, and no other time. can be fixed than the return of nulla bona. A shareholder (a) As to this case, see 2 H. & N. 553, note. 1858. ΝΙΧΟΝ v. GREEN. 1858. ΝΙΧΟΝ v. GREEN. cannot voluntarily pay up the amount of his shares after proceedings are taken against him any more than an executor can voluntarily pay debts of equal degree. Slade replied on this point, and stated that the question raised by the bill of exceptions had been so fully argued in the case of Nixon v. Brownlow that he should offer no further argument on the subject. Cur. adv, vult. ΝΙΧΟΝ v. GREEN. The judgment of the Court in the above cases was now delivered by WIGHTMAN, J.—In the case of Nixon v. Green the first question is, whether the defendant was a shareholder in the Kilkenny and Great Southern and Western Railway Company at all; and, secondly, whether it is sufficient that the defendant, if a shareholder, was so at the time of the return of nulla bona to the writ against the company, or whether it must also appear that he was a shareholder at the time of the scire facias, or of the rule of court by which the scire facias is allowed. With respect to the first question, it was contended for the defendant that he never proposed or subscribed for shares in the railway Company in question, though he did propose and subscribe for fifty shares in another proposed railway, to be called "The Galway and Kilkenny Railway Company." The shares in the last-mentioned proposed Company were to be 40,000 of 251. each, and it was to begin at Kilkenny and terminate at Galway, with a branch to Maryborough. The defendant paid 751. on account of his shares, at the rate of 17. 10s. per share, as a deposit, and executed what is called "the parliamentary contract," and also an indenture called "the subscribers' agreement." By that agreement it was provided that a capital, not exceeding 1,000,000l. should be raised, in shares of 251. each, and that the committee or directors of the proposed company should have full power to abandon the whole or any part of the undertaking, and to apply to parliament for an Act for all or any of the purposes mentioned in the deed; and to introduce into the Act any clauses or provisions that the committee or directors night think proper; and to fix upon and alter, and vary the termini, course, or line of the railway; and to determine how far, and to what extent, the undertaking should be carried into effect, and deferred, or abandoned, and what branches, if any, should form part of the undertaking; and in case any Act, to be obtained in relation to the undertaking, should authorise the construction of a part, the committee or directors might make such application as they thought advisable for the construction of the remainder or any part thereof. The directors of the proposed Company appear to have thought it in expedient to apply for an Act for the whole line from Kilkenny to Galway, and acting upon the authority given to them by the subscribers' agreement, to which the defendant Green was a party, obtained an Act, the 9 & 10 Vict. c. ccclx., for making a railway from Kilkenny to join the Great Southern and Western Railway at or near Cuddagh, which was, in effect, making a part of the proposed railway from Kilkenny to Galway. This appears from the 19th section of the Act, which refers to the plans deposited with the clerk of the peace of the county of Kilkenny. By the Act the capital of the Company was to be 225,000l., divided into 11,250 shares, of 201. each, and the defendant was placed by the directors on the register of VOL. 111.-N. S. A A A EXCH. 1858. NIXON v. BROWNLOW. NIXON v. GREEN. 1858. NIXON v. BROWNLOW. NIXON v. GREEN. the Company formed under the Act as a shareholder of fifty shares. The defendant contended, that though the directors might have had authority to place his name upon the register of shareholders in the railway Company originally contemplated by the subscribers' agreement, if an Act, in conformity with that agreement, had been obtained, they had no power or authority to put his name upon the register of shareholders in a Company for a different railway, with a different amount of capital, and with a different amount of shares. We are, however, of opinion that the Company which has been established under the Act is, in effect, the same Company that is contemplated by the subscribers' agreement, and that the directors have not exceeded the authority given to them by the subscribers' agreement, and that they were fully warranted in placing the name of the defendant upon the register of shareholders of the Company formed under the Act. The undertaking sanctioned by the Act is one applied for by the directors, under the authority given to them by the subscribers' agreement; and, according to the cases of The Midland Great Western Railway Company of Ireland v. Gordon (a) and The Cork and Youghal Railway Company v. Paterson (b), the directors are warranted in putting upon the register of the shareholders of the Company, constituted by the act of Parliament, the names of those who would have been upon the register if an Act had passed in accordance with the original project, for the construction of a railway from Kilkenny to Galway. We are, therefore, of opinion that upon the first point the judgment of the Court of Exchequer in the case of Nixon v. Green was correct, and our judgment is in favour of the plaintiff in the action. (a) 16 M. & W. 804. (b) 18 C. B. 414. With respect to the second point, we are also of opinion that the plaintiff in the action is entitled to our judgment. By the 8 & 9 Vict. c. 16, s. 36, "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 be issued against any of the shareholders to the extent of their shares respectively in the capital of the Company not then paid up." It is quite consistent with the plea that the defendant may have been a shareholder at the time of the return of nulla bona, and of the granting of the rule nisi for a scire facias, and the service of such rule upon the defendant. By the terms of the Act, "if there cannot be found sufficient effects of the Company whereon to levy, then execution may issue against any shareholders to the extent of their shares not then paid up." It appears to us that then refers to the time when sufficient effects of the Company cannot be found whereon to levy, which time is fixed by the sheriff's return of nulla bona; and we therefore are of opinion that the judgment of the Court of Exchequer is correct upon this point also; and the judgment therefore pronounced by that Court in the case of Nixon v. Green ought, we think, to be affirmed. We are also of opinion that the judgment of the Court of Exchequer in the case of Nixon v. Brownlow should be affirmed for the reasons we have given in the case of Nixon v. Green. Judgments affirmed. 1858. ΝΙΧΟΝ v. BROWNLOW. ΝΙΧΟΝ V. GREEN. A A A 2 |