Nixon v Brownlow
| Jurisdiction | England & Wales |
| Judgment Date | 26 June 1857 |
| Date | 26 June 1857 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 1260
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 26 L. J. Ex. 12; 5 W. R. 51. See further, 2 H. & n 455.
1260 NIXON r. BROWN LOW 1 H & Jf. 405 [405] nixon c. L'ROWNLOW Nov. 17, 1856.-In a, declaration iti scire facias against a shareholder in a Company, under 8 & 9 Viet, c 16, s ,36, it is sufficient to state that a writ of n'. fa. against the Company had issued, dnected to the sheriff of one county, and that no goods of the Company were found in his bailiwick - Under that section separate executions may issue against different shareholders till the debt ia satisfied. [S. C. 26 L. J. Ex. 12; 5 W. R. 51. See further, 2 H. & N 455.] Scire facias under S & 9 Viet c 16, s 36. Whereas the plaintiff, by the judgment of this Court, recoveied against the Kilkenny and Gieat Southern and Western Kailway Company the sum of 5081 8s , a Luge part whereof, and interest, &c, to wit, 1971. 14s. 6d., remains unpaid, and whereas on the 5th of May, 1855, an execution was issued upon the judgment against the effects of the Company, that is to say, a h'. fa. directed to the sheriffs of London, whereby, &c ; and whereas there could not be, and was not found, sufficient whereon to levjT such execution, or any part thereof, and the said sheriffs have returned to our said Court, that the Company had not any goods or chattels in their bailiwick; and whereas you J. Brownlow, at the time of the judgment, and of the issuing of the said execution, and thence until and at the time of the notice and the motion in open Court, &c , and thence hitherto weie and are a shareholder, &c , of fifty shares, cVc , and a large amount of the said shares at the time of the judgment and execution, was, &c., and still is not paid up, to wit, 9251 , and whereas upon motion made in open Court, upon sufficient notice in writing to you, &c., our said Court ordered that C Nixon might proceed against you as a share holder, &c. Now, therefore, we command you, &c , to appear, &c , to shew cause \vhy C Nixon should not have execution against you of the amount of his judgment and interest unsatisfied, to the extent of and not exceeding the amount of the said shares in the capital of the Company not paid up, to wit, &c. 406] Plea That after the issuing the said execution, and before the notice and motion in the declaration mentioned, six several writs of scne facias had, at the hint of the said plaintiff, and with the authority and consent of this Court, been respectively issued upon the said judgment against (six persons named), who were and stil) are respectively shareholders of and in the said Company, and were, and btill are, liable to be sued upon the said judgment, and which said several suits of scire facias are still pending, and under which the said plaintiff could and ought to have raised the said sum of money so due and owing upon the said judgment. Demurrer and joinder therein. Uuthank, in suppoit of the demurrer. The plea is bad, it should ha\e stated that the plaintiff was satisfied. On the contrary, it does not appear that the wntb have been served, or that a levy could have been made before the sci fa in the present case, or that the plaintiff knew that he could have obtained batisfaction, 01 that he failed to obtain satisfaction by reason of any fault of his own. It is clear that section 36 contemplates the issue of several writs of scire facias The point has been decided under stat. 7 Geo. 4, c 46, s. 13 , Btumesfci v. Giopton (3 Exch 397), Nunn v. Lomei (3 Exch 471) J. G. Malcolm, for the defendant The declaration is insufficient The Company may have had funds elsewhere than in the city of London. This is a coipoiation whose principal place of business is in Ireland, and it is not sufficient to say, that there are no funds within the bailiwick of the sheriffs of London. It amounts to no more than that the corporation had no funds in a particular place, If a writ of h' fa. against th.e Governor and Company of the [407] Bank of England were to issue to the sheriff' o! Surrey, it would probably be returned nulla bona Surely that would not warrant the issuing a scire facias against the proprietors of Bank stock. [Pollock, C B The 36th section does not justify that argument It would be absurd to contend, that an execution must issue into every county. The writ of scire facias can only be issued by the order of the Court ] Then, as to the plea, the 36th section does not provide for the issurng of concurrent writs of scire facias It was never intended that a plaintiff should issue separate executions against all the shareholders. [Pollock, C. B. The Court will consider the case against each shareholder separately.] pollock,, C. B. We are all of opinion that this plea is bad; and that there must 1H&N 408, HAMLIN V. GREAT NORTHERN RAILWAY COMPANY 1261 he judgment for the plaintiff The plaintiff' has a right to get from each shareholder, not the amount of the debt, but so much as such shareholder ought to pay to the 'Company. alderson, B The defendant is only liable to the extent of his shares. Each shareholder might iaise the same defence which the defendant does If that could be done, no one would have to pay watson, B, concurred Judgment foi the defendant
English Reports Citation: 157 E.R. 188
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 26 L. J. Ex. 273; affirmed 1858, 3 H. & N...
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