Nixon v Brownlow Nixon v Green
| Jurisdiction | England & Wales |
| Judgment Date | 05 July 1858 |
| Date | 05 July 1858 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 643
IN THE EXCHEQUER CHAMBER.
S. C. 27 L J. Ex. 509; 4 Jur. (N S) 878, 6 W. R 772
[686] in the exchequer chamber. (Appeal from the Court of Exchequer ) NiXON v. brownlow. nixon -u. green. July 5, 1858.-The subscribers' agreement of a proposed Company stated that it was formed for making a railway to be called "The G-alway find Kilkenny Kail way," and to commence at Kilkenny and terminate in the town of Galway, the capital to be one million in shares of 644 NIXON t'. BROWNLOW 3 H & N. 687. 251. each The deed empowered the directors to abandon the undertaking, or any part thereof and also to make application to parliament for an Act for any of tfce purposes aforesaid also to fix upon, and from time to time to alter or vary the termini, route, course, or line of the railway ; and to determine whether and how fir, and to what extent the undertaking should be carried into effect and deferred or abandoned : and in case any Act should authorize the construction of a part thereof, to make in any subsequent session application for the construction of tbe remainder. The defendant executed the deed as a subscriber for 150 shares, and paid the deposit of 11. 10s. per share. The directors applied to paihament and an Act passed (9 & 10 Viet. c. ccclx.) which incorporated the Company by the name of " The Kilkenny and Great Southern and Western Railway Company," for making a railway from Kilkenny to Cudclagh, the capital of the Company to be 225,0001. in 11,250 shares of 201 each After the Act passed the defendant was placed on the register of shareholders as a subscriber for fifty shares of 201. each Held, in the Exchequer Chamber (affirming the judgment of the Court of Exchequer), that the defendant was a shareholder in the incorporated Company, and liable as such to execution on a judgment recovered by a creditor against the Company.-The 36th section of the Companies Clauses Consolidation Act, 8 & 9 Viet. c. 16, which enables execution to issue "against any of the shareholders," il the execution against the property or effects of the Company proves ineffectual, means shareholders at the time of the sheriff's return of nulla bona . So Held, in the Exchequer Chamber, affirming the judgment of the Court of Exchequei [S. G 27 L J. Ex. 509 ; 4 Jur. (N S ) 878 , 6 W. R 772 ] The first of the above cases was an appeal against the decision of the Court of Exchequer in discharging a rule to set aside the verdict found for the plaintiff and enter it for the defendant, pursuant to leave reserved at the trial (reported 2 H. & N. 455). The declaration, which was in scire facias, set out the writ, which stated that the plaintiff, on the 26th April, 1855, recovered against "The Kilkenny and Great Southern and Western Railway Company" a judgment for 5081 8s , whereof 1971. 14s. 6d remained unpaid: that a fi fa directed to the sheriffs of London was issued upon the [687] judgment against the effects of the Company, and that the sheriffs returned nulla bona. The writ then proceeded thus -"And whereas you the said J. Brownlow, at the time of the said judgment and of the issuing of the said execution, and thence until and at the time of the notice hereinafter mentioned, and thence until and at the time of the motion in open Court hereinafter mentioned, and thence hitherto, were and are a shareholder of and in the said Company of divers, to wit, fifty shares of 201 each, and a large amount of the said shares at the time of the said judgment and execution was, arrd thence hitherto has been and is not paid up, to wit, 9251." The writ then recited, that upon motion in open Court, after-sufficient notice in writing to the defendant, the Court ordered that the plaintiff might proceed against the defendant as a shareholder of the Company according to the "Companies Clauses Consolidation Act, 1854," and the writ commanded the defendant ^m the usual form) to appear arrd shew...
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