Hitchins v The Kilkenny and Great Southern and Western Railway Company, Re Emery
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1850 |
| Date | 21 November 1850 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 66
IN THE COURT OF COMMON PLEAS
S. C. 20 L. J. C. P. 31; 15 Jur. 336.
[160] hitchins v. the kilkenny and great southern and western railway company, in re emery. Nov. 21, 1850. [S. C. 20 L. J. C. P. 31; 15 Jur. 336.] The proper course to obtain execution against 'a shareholder of a public company, under the 8 & 9 Viet. c. 16, s. 36, is by motion for a scire facias, and not by a motion for a rule to shew cause why execution should not issue against such shareholder.-A scire facias will not be granted upon an affidavit merely stating that judgment has been obtained against the company, and that two writs of fi. fa. issued against them, and had been returned nulla bona. Unthank, on a former day in this term, obtained a rule calling upon George Emery, a shareholder in the Kilkenny and Great Southern and Western Eailway Company, to shew cause why execution should not issue against him, under the 8 & 9 Viet, c. 16, s. 36. The motion was founded upon an affidavit by the clerk to the plaintiff's attorney, which stated that judgment had been recovered against the company, and two writs of fi. fa. issued against them, one into Middlesex, and the other into Surrey, both of which had been returned nulla bona. Slade now shewed cause. This motion is misconceived. The application should have been, for leave to issue a scire facias. The 36th section of the 8 & 9 Viet. c. 16, enacts, that, "if any execution, either at law or in equity, shall have issued against the property or effects of the company, and if there cannot be found sufficient whereon to levy such execution, then such execution may be issued against any of the shareholders, to the extent of their shares respectively in the capital of the company not (a) This Judgment, it will be observed, leaves untouched the question whether this was a case which touched the crown; nor does it notice the effect of the 3 & 4 W. 4, c. 41, s. 3, and 6 & 7 Viet. c. 38, s. 11. (b) A similar application was afterwards made to the court of Exchequer. That court granted a rule to shew cause, which, after a very elaborate argument, and time taken for deliberation, was discharged, with costs. See 5 Exch. 630, 10C.B.161- HITCHIN8 V. THE KILKENNY RAILWAY CO. 67 then paid up : provided always that no such execution shall issue against any shareholder, except upon an: order of the court in which the action, suit, or...
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