or colonial judgment is treated as matter of record: Smith v. Nicolls; Robertson v. Sir William John Struth, 5 Q. B. 941 (E. C. L. R. vol. 48). WILDE, C. J.-It appears to me that the declaration is sufficient, and that both the fourth and the tenth pleas are bad. The objection to the declaration is to the first count. That count states that the defendant was a member of a banking company acting under a colonial statute; a statute which may be assumed to have been obtained at the request of the parties. It provides, that one member holding a principal office in the company, may sue and be sued, instead of the whole body; and that execution may issue against the property of the other members of that body. But, while giving this benefit to the company, the act provides that it shall not vary the rights or the liabilities of the parties. Now, independently of the colonial act, the defendant would have been liable in respect of the demand for which the defendant is now sued; and, if the judgment had been recovered in an action brought against all the members jointly, an action of debt or assumpsit would clearly have lain against the defendant upon that judgment. The first objection taken to the count is, that the remedy given by the colonial act upon the judgment, is not against the person of the shareholder, but is limited to execution against the goods of [*686 those who are partners at the time the execution issues. I think this is not so; but that the effect of the colonial act is to extend the effect of the judgment. The first count of the declaration shows, that, under the colonial act, all previous rights and liabilities of the parties were reserved. These are sufficient to bind the defendant. The fourth plea states that the defendant had not at any time notice or knowledge of any summons or process, or of the proceedings in the action in the colonial court. Suppose he had no notice. The first count declares that the defendant was dealing with the public upon the terms of the colonial act, and that he assented to the chairman's being considered, for all purposes connected with the suit, as his representative. For these reasons I think the fourth plea bad, and that it therefore becomes unnecessary to consider the objections which have been raised to the replication to that plea. The tenth plea denies the right of the plaintiffs to sue upon the original causes of action, on the ground that these causes of action were merged in the judgment obtained against the chairman: Where a security of a higher nature is taken for a demand of a lower nature, the latter is merged in the former; and therefore, in the colony of New South Wales, where the judgment recovered against the chairman is a security of a higher nature than the debt upon which it was founded, a merger no doubt took place. This merger was, however, confined to the district in which the judgment recovered, being there conclusive, VOL. IX.-29 was a security of a higher nature than the debt upon which it was founded. But in England the colonial judgment, which stands upon the same footing as a foreign judgment, is not a security of a higher nature than the prior simple *contract debt.(a) The principle *687] of merger, therefore, does not apply. Any doubt upon that subject is removed by the case of Houlditch v. The Marquess of Donegal, 8 Bligh, N. S. 301, in which the House of Lords decided that a foreign judgment is not conclusive, but is merely primâ facie evidence, reversing a contrary decision in the Court of Chancery in Ireland. I think, therefore, that the plaintiffs are entitled to judgment. MAULE, J.-During part of the argument I was not present; and, as the rest of the court are clear that the plaintiffs are entitled to judg ment on the whole record, I shall not depart from them. With respect to the sufficiency of the first count and the badness of the fourth plea, I fully concur with what has fallen from the Lord Chief Justice. With respect to the tenth plea, I am not so clear. CRESSWELL, J.-I am of opinion that the plaintiffs are entitled to judgment. From the pleadings it appears that the defendant was a member of a company who must be taken to have been a consenting party to the passing of the colonial act. He must, therefore, be regarded as having agreed that suits upon contracts entered into by the company, might be brought against the chairman, and that the chairman should for all purposes represent him in such actions. Being his own appointed agent, he had notice of the proceedings. If he had been resident in the colony, he could not have made himself party to the action, or in any manner personally interfered in the proceedings. *The 5th section of the act extends the remedy by execution *688] to new shareholders who, but for this enactment, would not have been liable upon contracts to which they were not originally parties. Then comes the 7th section, which reserves all liabilities the parties would otherwise have been under. The object of the act was to create an additional remedy. It contains no exemption from liability. I think, therefore, that the first count of the declaration is good, and that the fourth plea shows no sufficient answer to it. The tenth plea, which is pleaded to the subsequent counts framed on that cause of action upon which the judgment declared upon in the first count was founded, does not affect the contracts declared upon in those counts; it relates only to the manner of proceeding for the purpose of enforcing payment. It may be true, that, in the colony, no further proceeding could be taken. There, the debt had become matter of record, but it is not so in the English courts. Here, the right to sue upon the original causes of action remains, there being in our (a) No action of debt as on matter of record, would have lain here upon the colonial judgment. The remedy would have been either by action of debt quasi ex contractu, in which a defendant might formerly have waged his law, or by action of assumpsit. courts no merger of those causes of action in a higher remedy. I think, therefore, that the tenth plea is also bad. TALFOURD, J.—I am of the same opinion. As to the first question, it appears to me that the first count discloses a good cause of action. The object of the colonial law was, not to take away any remedies which the creditor of the bank would otherwise have had, but to give additional and peculiar remedies. The second question is, whether the fourth plea presents any answer to the cause of action set forth in the first count. That plea states that the defendant was never resident in New South Wales, and had no notice of the proceedings. The answer to that is, that the defendant was a member of a partnership carrying on *business in the colonies, and was contented to leave his property there to be regulated by the law of the colony. [*689 The case of Smith v. Nicolls, 7 Scott, 147, 5 New Ca. 208, is conclusive against the tenth plea. It would be absurd to hold that a colonial judgment was in this country merely matter of inducement to a promise, and yet that it operated as a bar to an action on the causes of action upon which that judgment was founded. Judgment for the plaintiffs. (a) (a) And see Rastrick v. The Derbyshire, &c., Railway Company, 9 Exch. 149.† BUTTIGIEG v. BOOKER and Another. June 1. To an action by the payee against the acceptors of two bills of exchange, the defendants pleaded, that the bills were accepted by them and one B., and not by them alone; that, before the bills became due, and before the delivery thereof to the plaintiff, they were and continually from the time of their acceptance had been in the hands of the drawers for value, and had not been during all that time delivered over to the plaintiff by the drawers, and so continued from the times of their becoming due until the making of the agreement after mentioned; that, whilst the bills were so in the hands of the drawers, and before the delivery thereof to the plaintiff, it was agreed between the drawers and the defendants and B., that, in consideration of the defendants and B. paying the drawers 5007. in settlement of their accounts, the drawers engaged to accept their (the defendants' and B.'s) dividend of 28. 9d. in the pound on (amongst others) the bills in question, and which the drawers bound themselves to deliver to the defendants and B. within one month, receiving the said dividend on each acceptance as it should be delivered up,-the defendants and B. being at liberty to pay the said composition on the said bills at any time within one month, and to tender the same at a certain place; that a penalty of 500l. was to be paid on default by either side; that the 5001, were paid by the defendants and B. to the drawers in settlement of the said accounts, and the composition duly tendered; that the drawers refused to accept the dividends tendered, and failed to deliver up the acceptances, but afterwards, in fraud and violation of the agreement, delivered the bills declared on to the plaintiff; and that the plaintiff took, and held the bills with notice of the premises :- Held, that, assuming the plea to contain a defence to the action,-which the court inclined to think it did not,--it was well put in issue by the general replication de injuriâ. To a similar plea, alleging the agreement to have been made between the plaintiffs, through the drawers as their agents, and the defendants and B., and averring the payment of the 500l. and the tender of the dividend to the drawers, with notice to the plaintiff,-but not alleging that the agreement to take the dividend was accepted by the plaintiff in satisfaction or sub stitution of the contract on the bills, the plaintiff replied "that it was not agreed by and between the plaintiff, by and through the drawers as their agents, and the defendants, in manner and form as in the plea alleged :" Held, that the plea was bad in substance. THIS was an action of assumpsit. The first count of the declaration stated that certain persons using the *name and style of M'Dowell *690] & Sons, to wit, on the 3d of July, 1847, in parts beyond the seas, made their bill of exchange, directed to the defendants, and thereby required the defendants to pay to the plaintiff 2501. sixty days after sight, and then delivered the same to the plaintiff; that the defendants afterwards saw and accepted the said bill, &c., and that sixty days, &c., had elapsed before the commencement of the suit, &c. There was a second count upon a similar bill for 225l. 118. 6d., and also counts for money paid and for money due upon an account stated. The defendants pleaded,-eighthly, to the first and second counts respectively, that the two bills in those counts respectively mentioned were accepted by the defendants and one William Lane Booker, and not by the defendants alone; and that, at the time they respectively became due, and before the delivery thereof to the plaintiff as thereinafter mentioned, the said two bills were and had been continually from the time of their acceptance in the hands of the said M'Dowell & Sons for value, and had not been during all that time delivered over to the plaintiff by M'Dowell & Sons, and so continued from the times of their becoming due until the time of making the agreement thereinafter mentioned; that, whilst the said bills were so in the hands of M'Dowell & Sons for value, and before *the said delivery thereof, it was *691] agreed by and between M'Dowell & Sons and the defendants and W. L. Booker, that, in consideration of the defendants and W. L. Booker paying to M'Dowell & Sons 500l. in settlement of their (the said M'Dowell & Sons' and the defendants' and W. L. Booker's) differences of account, they, M'Dowell & Sons, thereby agreed to accept their, the defendants' and W. L. Booker's, dividend of 28. 9d. in the pound on the following bills accepted by the defendants and W. L. Booker, and which M'Dowell & Sons bound themselves to deliver to the defendants and W. L. Booker within one month of the date of that agreement, receiving the said dividend on each acceptance as it should be delivered up, that is to say, [here followed an enumeration of the acceptances of the defendants and W. L. Booker in favour of several persons, amongst which was an item of "G. Buttigieg, 475. 118. 6d.,” the amount of the two bills declared on], it being clearly understood between the said M'Dowell & Sons and the defendants and W. L. Booker, that the defendants and W. L. Booker were to be at liberty to pay the said composition of 28. 9d. in the pound on the said acceptances, at any time within one month, and to tender the same at, &c., where such settlement should take place accordingly, the said M'Dowell & Sons holding them, the defendants and W. L. Booker, harmless from any further liability on the said acceptances; but, in default of the fulfilment of that agreement within the time specified, on either side, the defaulter to be subject to a penalty of 500l., as liquidated damages: that, the said agreement being so made, and whilst M'Dowell & Sons were the holders of the said bills, the defendants and W. L. Booker did pay to M'Dowell & Sons, and M'Dowell & Sons accepted from the defendants and W. L. Booker the said sum of 500l. in settlement of the said differences of *account; and that they, the defendants and W. L. Booker, further were ready and willing, within one [*692 month from the date of the agreement, to pay the said composition on the said acceptances, and did, within one month, tender the same to the said M'Dowell & Sons, at, &c.; and that they, the defendants and W. L. Booker, had, from the time of making the agreement hitherto, always been ready and willing to perform the said agreement in all things, of all which the said M'Dowell & Sons then had notice that M'Dowell & Sons refused to accept the said dividend so tendered, and failed to deliver up the acceptances to the defendants and W. L. Booker, on the tender being made: that the said two acceptances in the first two counts respectively mentioned were the same as the acceptances of the defendants in the agreement mentioned in favour of G. Buttigieg for 475l. 118. 6d., and upon which the said dividend was tendered as aforesaid: that afterwards, and after the agreement, M'Dowell & Sons delivered the said bills over to the plaintiff, in fraud and violation of the agreement, and which was the delivery in the said first and second counts respectively mentioned; and that the plaintiff took the said bills with notice of the said premises, and, with such notice, from thence continually had held and still held the same,-verification. To this plea the plaintiff replied de injuriâ; and the defendants demurred specially to the replication, on the ground that the general replication de injuriâ is inapplicable to a plea in accord and satisfaction. Joinder. The defendants further pleaded, ninthly, to the first and second counts, that the bills in those counts respectively mentioned were accepted by the defendants and W. L. Booker; and that, after the acceptance of the bills, and after they became due, it was agreed between the plaintiff, by and through M'Dowell & Sons, as his agents, *and the defendants and W. L. Booker [setting out an agreement to the same effect as that stated in the eighth plea, except [*693 that the plaintiff, instead of M'Dowell & Sons, bound himself to accept the dividend of 28. 9d. in the pound, and to deliver up the acceptances]: that the defendants and W. L. Booker paid, and M'Dowell & Sons accepted and received, the 500l., according to the agreement, and the defendants and W. L. Booker tendered the dividend at, &c., according to the agreement,-of all which the plaintiff had notice: and that the |