Page images
PDF
EPUB

1851.

EX PARTE
LLOYD.

and Courts of Justice are not bound by a mistake of the Legislature, as to what the existing Law is. This was so decided by the Court of King's Bench in Dore v. Gray (a). If the framers of these Acts thought that associations like that in the present case, are companies, they thought wrong. The members of such associations may not be jointly liable for any single act that has been done in effecting the object for which they were formed. Each of them is liable only for the debts which he, either individually or in conjunction with some other member or members, has authorized to be incurred. Therefore, it would be quite improper for the Master to admit debts, (as Mr. Rolt has contended he ought,) de bene esse; for that might be admitting debts which had no existence. If the debts claimed exist at all, they must be due from some one or more of the contributories; and the Master is bound, before he admits a claim as a debt, to require the claimant to show him that the parties who gave the order in respect of which the claim is made, or some of them, have been ascertained to be contributories.

I am of opinion that what the Master said, in this case, is substantially accurate; and, I shall refuse the motion, with costs.

(a) 2 T. R. 358.

1851 : 4th and 5th March.

MACINTYRE v. CONNELL.
Parties and
Pleading.

SEE ante, page 225.
A. filed a bill
against B. and

The Defendants assigned a third cause of demurrer, the public officer of a banking

ore tenus, which renders a further statement of the concompany, seek- tents of the bill necessary. ing to make certain shares which B. held The bill alleged that the Union Bank of London prein the bank, tended that Connell, Webster and Mark Boyd, were available to the

justly and truly, within the true intent and meaning of payment of a debt due to him the provisions of the deed of settlement, respectively from B. The

indebted, to the bank, in sums of money exceeding the bill alleged that, though the com

values of their respective shares ; and that, in respect of pany had a prior such debt, the bank was entitled to have a lien or charge charge, on the shares, for a debt on such shares respectively: but the Plaintiffs charged due to them the contrary thereof to be true, and, that, although from B., yet there was some debt due to the said company from that debt was amply secured Connell, Webster and Mark Boyd, yet the same was a by the shares of other persons in the bank, and by other securities held by the company; and it prayed that an account might be taken of what was due to the company in respect of their charge ; and that directions might be given for the satisfaction thereof out of the last-mentioned shares, and out of or by means of the other securities held by the company, or for enabling A. to pay, to them, the amount of their charge, and, thereupon, to have such other securities assigned to him ; and, that the securities might be marshalled, so as to give the Plaintiff the benefit of his charge.

A demurrer, because the persons who had pledged their shares and given securities, to the company, for B.'s debt, were not made parties to the bill, was allowed.

A bill contained a charge with a view to discovering who certain persons, who were interested in the relief, were ; but it did not allege that the Plaintiffs did not know who they were ; and, therefore, a demurrer because they were not made parties, was allowed.

1

1851.

MACINTYRE

CONNELL.

debt due from all of them, and from a great number of other persons, shareholders in the bank, and others; and the banking company's debt was amply secured by the shares of such other persons, and by other securities for the same debt which the company held : and so it would appear

if the Defendants would set forth what the debt or debts was or were in respect of which the said company claimed such lien on the said shares respectively, and how and in what character, and under what circumstances the same was or were contracted; and, in particular, whether the same was or were due or alleged to be due from them, Connell, Webster and Mark Boyd respectively, individually, or from them as members of any firm, company or partnership, or jointly with any other individual or individuals ; and how the said banking company alleged that the said lien arose or was created; and also what other persons or person the said banking company had liable to it for such debts or debt, and what securities or security, liens or lien it held for the same.

And the bill prayed that the directors of the bank might be ordered to sell the shares of Connell, Webster and Mark Boyd in the bank, and to pay over the proceeds or so much as might be required, in or towards satisfaction of the debt due to the Plaintiffs ; and, if it should appear that the banking company had any lien or charge upon the said shares or any of them, prior to the Plaintiffs' charge thereon, then that an account might be taken of what was so due to them; and that proper directions might be given for the satisfaction thereof out of the said shares, and out of or by means of the other securities held by them, or for enabling the Plaintiffs to pay, to the banking company, the amount of such charge, and to have assigned to them, thereupon, the

1851.

MACINTYRE

said several securities held, by the banking company, for
the same; and that proper directions might be given for
marshalling the said securities, so as to give, to the
Plaintiffs, the benefit of their said charge upon the said
shares.

CONNELL.

The cause of demurrer assigned ore tenus, was that the persons who were liable to the banking company, or had given securities to it for the debt due from Connell, Webster, and Mark Boyd, were necessary parties, but were not made parties to the bill.

Mr. Bethell and Mr. James said that the demurrer ore tenus could not be sustained: First, because the bill alleged that the debt due to the bank from Connell, Webster and Mark Boyd, was amply secured on other property than the shares of those Defendants in the bank, and it merely sought to compel the banking company to have recourse to that other property for payment of the debt owing to them by. Connell, Webster and Mark Boyd, and to leave untouched the bank shares of those Defendants, which were the only property that the Plaintiffs could have recourse to for payment of the debt due to them : Aldrich v. Cooper (a), where Lord Eldon said: “But the Court has said, and the principle is repeated, very distinctly, in The Attorney-General v. Tyndal, that, if a creditor has two funds, the interest of the debtor shall not be regarded, but the creditor having two funds, shall take to that which, paying him, will leave another fund for another creditor :" Secondly, because the bill sought to discover who the persons alleged to be necessary parties were ; and, therefore, it would be absurd to allow a

[ocr errors]

(a) 8 Ves. 382, see 391.

1851.

demurrer because those persons were not made parties : and, Thirdly, because, Connell, the debtor, and not the bank, was the demurring party, and it did not lie in his mouth to make the objection for want of parties.

MACINTYRE

CONNELL.

Mr. Stuart said that the bill did not allege that the Plaintiffs did not know who the persons alleged to be necessary parties were; and that Connell was as much entitled, as the bank was, to make the objection for want of parties.

The Vice-CHANCELLOR:

This objection for want of parties, seemed to me, at first, to be a valid one ; and the more I have considered it, the more weight it has seemed to have; and my final impression is that it must prevail. Three answers were given to it : two by Mr. Bethell, and one by Mr. James. Mr. Bethell's first answer was that the Plaintiffs sought to take, from the banking company, only one of the funds on which the debt due to them from Connell, Webster and Mark Boyd, was charged, they having other ample security for it. The Plaintiffs, however, cannot touch any portion of the security until they have paid the debt. If the company held security to the amount of a million, the plaintiffs could not touch a farthing of it without satisfying the debt.

It seems to me, too, that the account prayed for, cannot be taken in the absence of the persons who are alleged to be necessary parties. – What is asked, is that, if it shall appear that the banking company have any lien or charge upon the shares of Connell, Webster and Boyd, prior to the Plaintiffs' charge thereon, then that an account may be taken of what is so due to them. I do

« EelmineJätka »