Heward v Wheatley

[552] heward v. wheatley. Ex parte wilson. Feb. 28, May 24, 1852. [S. C. reversed, 3 De G. M. & G. 628; 43 E. K. 247.] A testator was a shareholder in a joint stock banking company, carrying on business under the 7 Geo. 4, c. 46, prior to April 1847, until bis death in December in the same year. In April 1847 a creditor of the banking company became such, and so continued long after the testator's death. In 1849 the creditor obtained judgment against the public officer of the company for his debt. Under a decree for the administration of the testator's estate the creditor, after he had obtained his judgment, brought in his claim against the testator's estate. Held, that, as it was not suggested that the banking company had ceased to carry on business, or that there had been any attempt to enforce the judgment against the present shareholders, who were primarily liable, the creditor had not made out a case to charge the testator's assets, which were liable only in the second degree; and the petition was dismissed, but, owing to the difficulty on this point, without costs. Joseph Elder, deceased, the testator in the cause, died on the 8th of December 1847. The above suit was shortly afterwards instituted for the administration of his estate by the Plaintiff, who was beneficially entitled to the residuary personal estate of the testator. The Defendants were the legal personal representatives of the testator. By the decree made on the hearing of this cause on the 22d of December 1848, it was referred to the Master to take an account of the personal estate of the testator and of his debts. On the 3d of April 1847 Mr. Wilson, the Petitioner, lent the sum of £9181,, 5s. 2d., at interest, to the Newcastle, Shields and Sunderland Union Joint Stock Banking Company, carrying on business under the provisions of the 7 Geo. 4, c. 46, and under the regulations of a deed of settlement, dated the 1st of July 1836. The-interest, and also sums on account of the principal debt, were paid to Mr. Wilson ; and on the 3d of April 1849 there remained due to Mr. Wilson on account of his loan, a balance of £5958, 16s. 8d., for which Mr. Wilson recovered judgment against the public officer of the company. The testator, Joseph Elder, was, at and before the 3d, of April 1847, and he thenceforth until his death continued to be, one of the shareholders in and a member of the Newcastle, Shields and Sunderland Union Joint Stock Banking Company, and he regularly participated in the profits of the banking; concern during that period; and the shares in the banking com-[553]-pany, held by the testator, were duly registered in his name in the proper bank books. Mr. Wilson, in 1849, carried into the Master's office an affidavit of claim, to prove-as a creditor of the testator in respect of the balance of £5958, 16s. 8d. The claim was allowed by the Master. In the month of May 1851 the claim was reheard before Mr. Humphry, the successor of the late Master. An objection was, on this rehearing,, for the first time taken to the claim, on behalf of the Plaintiff and the Defendants in 1240 HEWARD V. WHBATLEY 5 DE G. & SM. 554. the suit, on the ground that, the claim being for a partnership .debt, the Master had no jurisdiction to entertain the same under the decree, without an order of this Court for the purpose; and thereupon an...