Davison v Farmer and Grace

davison v farmer and gr/vok Feb 14, 1851 -A shareholder in a joint-stock Banking Copartneiship established under 7 Geo 4, c 46, cannot be proceeded against in bankruptcy upon a debt due fiom the copartnership, where no judgment has been obtarned against the public othcer of the copaitneifctup, although the business has been lehnqurshed, and an order has been obtained to wind up the affairs of the Company under the 11 & 12 Viet c 45, prior to the proceedings in baukiuptc) The rule is the same, although there be not any public othcer of the Company -A hat in bankruptcy issued against the plaintiff, dated the 20th of July, 1849, upon a debt due from a banking copartnership, of which the plaintitt was a membei, to G, the petitioning creditor, no piocecdmgs having ( een taken against the public otticei of the Company A wariant of seizure was issued to F , the messenger of the Couit of Bankruptcy, dated the 'iOth July, 1849 The credrtors' assignee was appointed on the 21st of August The stat 12 & 13 Viet c 106, came into operation on the lltb of October, and, on the 18th of October, the plaintiff's goods were seized, and sold by the raessengei nuclei the warrant -Held, that the hat was invalid, and that either the petitioning creditor or the messenger was hable in trovei foi this wrongful stizuie -At the tune of the issuing of the hat the plaintiff was residing in the Isle of Man -Held, that, as he was not at that time within the United Kingdom, undei 5 & G Viet c 122, s 24, he had a petiod of three months aftei the advertisement of his bairkiuptcy in the London Gazette, within which ho was at liberty to dispute the validity of the hat [S C 20 L J Ex 177 Adopted, Matlun v Brown, 1876, 1 C P D 602,] Tiover for ceitain goods and chattels of the plaintiHs Pleas, not guilty, and not possessed Issues thereon The cause came on to be tried at the Spring Assizes, 1850, foi the town and county of the town of Newcastle-upon-Tyne, before Aldeison, B, when a verdict was enteied fot the pLuntitt, with Is damages, on both issues, subject to the opinion of the Court upon the following ease The plaintiff for some time prior to the '2nd of Decembei, 1848, earned on the trade of a grocer in a street 01 place called Ouseburn, in the town of Newcastle-upon-Tyne, and he lesided in a house to which the shop was attached, then and for upwards of two years before that tirne Prior to the contracting of the debt due to the defendant Edward Grace, as heieinatter mentioned, the plaintitt became a member of, and the holder of 112 shares in, " The Noith of [243] England Jornt Stock tanking Company," the said Company consisting of a numbei of mote than six persons, and carrying on business under the provisions of 7 Geo 4, c 46 , and pursuant to that Act, one Geoige Burdis was duly appointed and registered as the public otticei of the said Banking Company The plaintitt continued to hold the shares up to March, 1848, when the Banking Company stopped payment On the 17th of Novembei, an ordei for winding up the Blinking Company was obtained, pursuant to 11 & 12 Viet c 45, which oidei was duly advertised in the London G-azMe, and on the 22nd of November, John Henderson, John Hewson, and .lames Koss were appointed official managers, and by them a list of contnbutoiies was made out, and, after due notice, settled by the Master Faner The plaiutift was included in such list as follows - N\MS ADDRUiiy For how rn my Hh-ires of £100 e^cli Mr George Davisoii Otisebuin, Newcastle 112 On the 10th November, 1848, Master Farrer made a peremptory order, pursuant to the Act, for a call of 301 per share, and that each contributory should, on the 22nd of Decembei, 1848, at the banking-house of the Noith of England Joint Stock 532 DAVISON V FARMER 6 EX 244 Banking Company, Newcastle, pay to the official managers the balance (if any) which would be due from him, aftet debiting hia account in the Company's books with such call The oider having been made, was advettised in the Lomlon Ga-.ette, on the 12th of Decembei, 1848, and a copy of it, together with a statement of the balance of the plaintiff's account with the said Banking Company, aftei debiting the same account with the amount chargeable against him in respect of such call, was, on the 6th of De-[244]-cemher, 1848, put into the post office at Newcastle-upon Tyne, addiessed to the said plaintiff at his then last known addiess Such copy and statement, 01 eithei of them, never weie letuined The statement last mentioned was in the woids and figures following, viz "Noith of England Banking Company, Newcastle, "Decembei 1st, 1848 "Take notice, that you are seived with the above oidei of the Mastet foi a call, and tlso that the balance of yout account, after debiting you with the amount chaige- alle against you in respect of such call, is .27541 16s 4(1 , which sum you aie to pay, as 111 the order mentioned, 01, in case of default, you will be liable to have piocebs of execution issued against youi piopeity and peison, upon affidavit of the official Tuanqgeis of such default, and without any pievious demand by the official manageis 01 any other person "(Signed by the official manageis)" The plajntitt left his house and place of business at Newcastle-on-Tyne, on the 2nd of Decembei, 1848, and kept out of the way to a\oid being seived with any oidei foi payment of any call which might be made upon him .it a membei 01 con-tnbutoiy in the said bank, by any oidei of the Mastei in Chaneeiy undei the haid Act of Parliament, and he nevei aftei watds returned to his house 01 shop, 01 Gained on any trade or business , and on the 8th of December in the yeai afoiesaid he quitted Newcastle-upon-Tyne, and went to the Isle of Man, wheie he has evet since teen residing The defendant Edwatd Giace was a creditoi of the said Banking Company foi the sum of 2381 8s lOd , lent by him to the said Banking Company in the eatly patt of the year 1847 To secuie that debt, two several promissoiy notes, beaung date the 2.3rd of Apiil, 1817, diawn in the name of the said Company by two of the diiectors theieof, [245] one of such notes being foi the sum of 1231 8s, lOd payable to the said defendant Edward Giace ot ordei, three ^ eais aftet the date theieof, were given by the said Banking Company to the said Edward Giace on the day of the date thereof The defendant Edward Grace was not a membei of noi a person holding shaies in |he said Banking Company On the 21st of Jul), 1849, a hat in bankiuptcy issued agamat the said plaintiff on'the petition oE the said defendant Edward Grace No debt was, at the tune of tlm presenting of the said petition, 01 when the said hat issued, 01 at any time since, due or owiug from the said plaintiff to the said defendant Edward Giace, noi had the said Edward Grace any claim 01 demand other than and except such debt, claim, 01 demand (if any) as undei the ciicumstancea herembefoie set fotth aiosu in lespect of the said debt...