the dants] [empire, kingdom or republic, &c.] of serve the [defen[name of corporation], who are a corporate body according to [e.g, a notice of the writ of summons in this action], a true duplicate of which said [notice] is now produced and shown to me, marked -, by delivering the same to the law of the said -[name of country], with , the secretary [or as the case may be, describing the officer] at, being the principal place of business [or office] of the said [defendants]. SECTION II.-PROCEEDINGS BY AND AGAINST BANKING COMPANIES SUING OR BEING SUED IN THE NAME OF A PUBLIC OFFICER (c). 1. Writ of Summons by Public Officer of Banking Company under 7 Geo. 4, c. 46, s. 9, or 27 & 28 Vict. c. 22. Same as usual, but describe the plaintiff in the title of the action, and in the claim indorsed on the writ of summons, as one of the registered public officers of the Company, or as public officer of the 2. Statement of Claim. Bank (d). Same as usual, describing the plaintiff in the title of the action as in the writ (see No. 1). The first paragraph of the claim may be as follows: The plaintiff is one of the registered public officers of a banking co-partnership, called the Banking Company, and is entitled by virtue of the statutes in that behalf to sue in this action as the nominal plaintiff for and on behalf of the said co-partnership. [State the cause of action as usual, showing that it has accrued to the company, and conclude as follows:] The plaintiff, as such public officer as aforesaid, claims [or as the case may be]. £ 3. Judgment for Plaintiff. Banking [Formal parts as usual.] It is adjudged that the plaintiff, as the public officer of a banking co-partnership called the Company [or of the Bank], do recover against the defendant [&c., as usual]. 4. Execution thereon. Same as usual, but state that the recovery of the judgment was by the plaintiff as one of the registered public officers of a banking co-partnership called the Banking Company. may be served on the mayor or other head officer, or on the town clerk, clerk, treasurer or secretary of such corporation. (c) See, generally, 2 Pr. 14th ed. 1080. (d) The latter form is given in R. S. C., App. A., Pt. III., Sect. VII. 5. Writ of Summons against a Public Officer of a Banking Company under the 7 Geo. 4, c. 46, s. 9. Same as usual, but describe the defendant in the title of the action as one of the registered public officers of the Banking Company. Indorse the writ thus: The plaintiff's claim is against the defendant as public officer of the Banking Company for [&c., as usual]. 6. Statement of Claim against Public Officer. Same as usual, describing the defendant in the title of the action as in the writ (see No. 5). It should be stated that the defendant is one of the registered public officers of a banking co-partnership called the Company, according to the statutes in that behalf and the plaintiff sues the defendant as the nominal defendant for and on the behalf of the said co-partnership. [State the cause of action as usual, showing that it has accrued against the company, and conclude:] : The plaintiff claims against the defendant as such public officer as aforesaid £- [or as the case may be]. 7. Statement of Resignation of Party who was Officer at the Commencement of Action (e). Having described the defendant as in the form supra, No. 6, proceed in a new paragraph as follows: The writ of summons herein was issued against J. B. as one of the registered public officers of the said co-partnership, according to the said statutes, and since the issue of such writ, and before the delivery of this statement of claim, the said J. B. resigned the said office of public registered officer, and ceased to be such officer. 8. Judgment against Public Officer. [Formal parts as usual.] It is adjudged that the plaintiff do recover against the defendant as one of the public officers of a banking company called the Banking Company [or of the costs of action to be taxed [or as the case may be]. Bank], and 9. Execution thereon. Same as usual, but command the sheriff to levy (according to the nature of the writ) against the goods and chattels, or the lands, of the banking company (e) If the public officer die or be removed, and another be appointed pending the action, the fact should be stated in the claim; formerly a suggestion of that fact had to be entered. called the Banking Company [or the Bank], and state that the judgment was recovered against the defendant as one of the registered public officers of the said company as the nominal defendant for and on their behalf. (See Harwood v. Law, 7 M. & W. 203.) 10. Application for Leave to issue Execution against a Member of a Banking Company after Judgment against Public Officer (ƒ). [Tille, &c., as in judgment.] 19--, at - o'clock in the -noon, on Let M. M., of [naming the member or members against whom it is sought to issue execution], and all parties concerned, attend the Master in Chambers at the Central Office, Royal Courts of Justice, Strand, London, on ------day, the - day of the hearing of an application on the part of the above-named plaintiff for an order that the plaintiff be at liberty to issue execution against the said M. M. on the judgment herein recovered by the plaintiff against the above-named defendant company, dated the day of, 19——, and that the plaintiff be at liberty to add the costs of the application to the amount of his judgment debt, and to issue execution therefor against the said M. M. Dated [&c., conclude the summons as usual]. 11. Affidavit in support thereof against a present Member of the Company. [Title, &c., as usual.] 1, X. Y., of make oath and say as follows:- 1. In this action the above-named plaintiff A. B. on the day of 19--, recovered judgment for £- , and also costs afterwards taxed at £ against the above-named defendant C. D. as one of the registered public officers of a certain banking co-partnership (g) called the Bank, and as the nominal defendant for and on behalf of the said copartnership, pursuant to the provisions of the Country Bankers Act, 1826, and the Banking Co-partnership Act, 1864, such judgment being recovered upon a contract [or engagement] made by [or debt due from] the said co-partnership with [or to] the plaintiff (). (f) Execution against Member of Company or Judgment against Public Officer.]R. S. C., Ord. XLII.. r. 23 (ante, p. 454), provides that when a party is entitled to execution against any of the shareholders of a joint stock company upon a judgment against a public officer or other person representing such company, such party may apply for leave to issue such execution, and such leave may be given or any issue or question may be ordered to be tried. This mode of proceeding is substituted for the former mode by writ of scire facias. (g) See Ness v. Bertram, 18 L. J., Exch. 476. (h) It should be stated that the debt recovered against the public officer was due from the company to the plaintiff (Ness v. Fenwick, 2 Exch. 598). -], and 2. The said judgment is still unsatisfied [to the amount of £ execution of the said judgment [for that amount] still remains to be made to the said A. B. (i). of was on the day of 3. M. M., 19--, the date when the said co-partnership entered into the said contract [or engagement, or contracted the said debt, or the date when the said judgment was recovered], and still is, a member of the said co-partnership (k). 4. The said A. B. is desirous of issuing execution against the said M. M. on the said judgment. Sworn [&c., as usual]. This affidavit is filed on behalf of the plaintiff. 12. Order thereon. If the order be for leave to issue execution, it may be easily framed from the form of summons, supra. If an issue be ordered, it may be as follows: [Formal parts as usual.] It is ordered that an issue be tried between. the above-named plaintiff and M. M., of wherein the said plaintiff shall be plaintiff and the said M. M. defendant, and that the question to be tried shall be whether on the day of -, 19- [date of the judgment], the said M. M. was a member of the Banking Company, and that the further hearing of the plaintiff's application for leave to issue execution on the said judgment against the said M. M. be adjourned until after the determination of the said issue. And that the plaintiff prepare and deliver the issue in [10] days, and the same be returned in [7] days, and that such issue be tried at And that all questions of costs be reserved until the said trial. 13. Application for Leave to issue Execution against a former Member under the 7 Geo. 4, c. 46, s. 13 (7). See the form No. 10, supra, from which a form for this case may be framed. (The affidavit should state the amount remaining due, and if part of the debt has been levied, the affidavit should state that fact. (k) See Nunn v. Claxton, 3 Exch. 712. The affidavit should state whether the party is charged as a member for the time being, or as a member when the judgment was recovered, or otherwise state the character in which the party is sought to be charged with liability. See, further, 2 Pract. 14th ed. 1085 et seq. (1) See ante, p. 523, n. (ƒ). The 7 Geo. 4, c. 46, s. 13, provided that the execution should not issue without leave first granted by the Court in which the judgment has been obtained, on motion in open Court, made on notice to the persons sought to be charged. The application may now, it seems, be made by summons at Chambers (R. S. C., Ord. XLII., r. 23). As a rule, the service of the summons upon the respondents should be personal service. 14. Affidavit in such Case. As to this affidavit, the form of which must necessarily vary according to the details of the case, see 2 Pract. 14th ed. 1087, and see the form, No. 7, post, p. 528. The affidavit should show the recovery of judgment against the public officer upon a contract or engagement of the company, the date of the judgment and the amount thereby recovered; the amount still due, and the executions that have been issued on the judgment; the steps taken to levy execution, and such other facts as demonstrate that due diligence has been used to obtain satisfaction of the judgment from the company or from the members for the time being thereof; the date when the contract or engagement upon which the judgment was recovered was entered into or executed, as the case may require; and the fact that the party sought to be charged was a member of the company at the time when the contract or engagement was entered into, or became a member before the same was executed, or was a member at the time when the judgment was obtained. 15. Fieri Facias pursuant to Order (m). [Title, &c., as usual; see the form, p. 390, No. 2.] Edward the Seventh [&c., as usual], to the sheriff of greeting: We command you that of the goods and chattels of M. M. in your bailiwick you cause to be made the sum of £- and also interest thereon at the rate of £ per centum per annum from the day of 19- " which said sum of money and interest were lately before us in our High Court of Justice, in a certain action wherein A. B. is plaintiff and P. O. as and being one of the registered public officers of a banking co-partnership called the Banking Company under the statutes in that behalf is defendant, by a judgment of our said Court bearing date the - day of , 19--, adjudged to be paid by the said defendant as such public officer as aforesaid to the said A. B., together with certain costs in the said judgment mentioned, which costs have been taxed and allowed by one of the taxing officers of our said Court at the sum of £- as appears by the certificate of the said taxing officer dated the day of 19-; and upon which said judgment by an order of said Court, dated the day of 19, it was ordered that the said A. B. should have execution against the said M. M. for the said £ (debt) and £(costs), together with interest upon both those said sums at the rate of £4 per centum per annum from the 19-- [the date of the judgment], according to the force, form and effect of the said judgment. and of the said statutes [and also together with the costs of the said order, which costs have been taxed and allowed by one of the taxing officers of our said Court at the sum of £ as appears by the certificate of the day of (m) This form is framed from that given in R. S. C., App. H., No. 1. |