Skinner, Secretary, Company, v Lambert

[477] skinner, Secretary, &c., v. lambert. June 6, 1842. [S. C. 5 Scott, N. R 197; 2 D. N. S. 132; 11 L. J. C. P. 237.] By a private act, for enabling a joint-stock company to sue and be sued in the name of a director or secretary, it is provided, that all actions and suits against any person or persons indebted or who may hereafter be indebted to the company, and all actions, suits, &c., at law or in equity, upon or in respect of any present or future liability or liabilities to the company, or upon any bonds, covenants, bills of exchange, promissory notes, contracts, or agreements which already have been or hereafter shall be given or entered into with the company, or to or with any person whatsoever in trust for the company, or to or with any person or persons for the use or benefit thereof, and generally all other proceedings whatsoever, at law or in equity, to be carried on by or on behalf of the company, or wherein the company is or shall be concerned or interested, against any person or persons, &c., whether such person or persons, &c., is or are, or shall be, or shall have been, a proprietor or proprietors of the company or not, shall be carried on in the name of the secretary of the company for the time being, or in the name of any one of the elected directors for the time being of the company, as the nominal plaintiff, &c., on behalf of the company; and it shall be lawful for the company to sue and proceed against any person or persons, &c., notwithstanding such person or persons, &c., is, or are, or shall be, or shall have been, a proprietor or proprietors of the company, and that, solely or jointly with any other person or persons in respect of any claim or demand which the company may have against such person or persons, &c., either solely or jointly as aforesaid, the same as if such person or persons, &c., was, or were not, or had never been, a proprietor or proprietors of the company.-Held, that the enacting (c) 10 B. & C. 576, 5 M. & K. 287. In that case, B., principal, and C., surety, gave their promissory note to A. A. sued B., and took from him a cognovit payable by instalments, the first of which would become payable before the time at which A. could have signed final judgment had no cognovit been given. The court held that C. was not discharged, inasmuch as no longer time had been given to B., than he would have had if the suit had proceeded. It is, however, observable that if the cognovit given by B. and accepted by A. did not discharge C., it would have been competent to A. to arrest C. on the very day on which the cognovit had been given, and if C. had paid the money, which it would be his interest as well as his duty to do, he might have arrested B. as soon as he could have issued a writ, and B., who had waived his defence to the action brought against him in order to purchase his liberty, at all events until the day appointed for the payment of the first instalment, might have found himself in custody at a much earlier period, precisely as if no cognovit had been given. It would therefore appear to be necessary, in order to enable A. to keep faith with B., that until the first instalment became payable, A.'s right of action against C. should be suspended; and a right of action, if suspended, is destroyed. In Price v. Edmunds, B. and C., as joint-makers, were both primarily liable on the face of the note, though C. was, in fact, a surety; whereas in the principal case the drawer, being only liable in default of the drawee, was, ex facie, merely a surety. (d) See Jay v. Warren, 1 C. & P. 532; Lee v. Lew, ib. 555, 675: 4 B. & C. 390; 6 D. & E. 475; Stevenson v. Roche, 9 B. & C. 707; Stevenson v. Crease, 4 M. & Kyi. 561; ibid, 563 (a); Hulme v. Coles, 2 Sim. 12. 4 MAN. & (J. 478. SKINNEK V. LAMBERT 197 words were sufficiently large to authorize the company to sue the defendant, a proprietor of shares in the company, in the name of the secretary, for an instalment of the capital secured by a deed of settlement in which the defendant, and each of the other proprietors, had covenanted with certain trustees for payment of the instalments.-In debt at the suit of the secretary for an instalment, the declaration alleged that the defendant was the proprietor of sixty shares; that, by an indenture of settlement bearing date a certain day and year, to wit, the 25th of October 1836, executed by the defendant, it was covenanted, amongst other things, that there should be a board of directors; that such board, when they should think proper, might resolve that the proprietors of shares in the capital of the company (except the proprietors for the time being of certain shares by the said indenture exempted from the payment of calls), should be called upon to pay, at any time after the expiration of three calendar months from the date of the indenture, and after the expiration of three calendar months from the time appointed for payment of any former instalment, such further instalment not exceeding, &c., upon every share (except as aforesaid), as the board should from time to time think necessary; that certain notices should be given of calls; and that every present or future proprietor or holder of shares (except as to the shares so exempted), should pay every instalment that might be called for in respect of each of his or her shares on or before the day and at the place appointed for the payment thereof; provided that no further instalment should be payable until at least three calendar months should have elapsed after the day appointed for the payment of any previous instalment. The declaration then alleged that afterwards, and whilst the defendant was such proprietor of sixty shares, &c., to wit, on the 22d of December 1840, the board of directors duly made a call according to the provisions of the deed of settlement, to wit, a call or instalment of 21. 10s. upon every share in the capital of the company (except the said exempted shares), to be paid and payable on the 16th of January then next following, " the same not being so payable as aforesaid till more than three calendar months after the day appointed for the payment of any previous instalment;" that the proportion or instalment of the defendant so called for in respect of his said sixty shares in the capital of the said company amounted to a large sum of money, to wit, 1501.; that the defendant had due notice of the call, &c.; and that by reason of the premises, " the said defendant then became liable to pay the said company, on the said 16th of January 1841, the sum of 1501., being the said amount of the said proportion or instalment in respect of the said sixty shares of the defendant as" aforesaid."-Held that the declaration shewed, by necessary implication and intendment, that the defendant's shares were not exempted shares.-Held'also, on special demurrer, that the declaration contained a sufficient averment that the call had not been made until after the expiration of three calendar months from the date of the deed of settlement, and that such call had not been .made payable until after the expiration of three calendar months from the time appointed for the payment of any former instalment. Debt by the plaintiff as " the secretary for the time being, duly appointed and inrolled in that behalf, of a certain company, called ' The Monmouthshire Iron [478] and Coal Company,' being a company mentioned in a certain act made at a parliament holden in the 3 &'4 Viet. (c. cxxvi.) to enable the said ' Monmouthshire Iron and Coal Company' to sue and be sued in the name of any one of their directors, or their secretary, and to raise money for carrying on their works." The declaration stated, that before and at the time of the making of the call for money thereinafter mentioned, the defendant was the proprietor of divers, to wit, sixty shares in the said company; that a memorial of the name, residence, and description of the defendant as such proprietor as aforesaid, duly verified by the de-[479]-claration required in that behalf, had been and was duly inrolled in the High Court of Chancery according to the provisions (s. 11) of the said act of parliament in that behalf made as aforesaid; that by a certain indenture of settlement, bearing date on a certain day and year therein in that behalf mentioned, to wit, the 25th of October 1836, and made by and between the several persons whose names and seals were thereunto subscribed and affixed (except E. Hopkins, Eice Hopkins, T. Hopkins, and W. T. H. Phelps therein described, and E. Welsh, H. Marsh, and the Rev. W. Phelps) of the first part, the said E. Hopkins, &c. of the second part, and the said E. Welsh, 198 SKINNER V. LAMBERT 4 MAN. & G. 480. &c. of the third part, it was and is provided and declared, and each of the persons parties to the said indenture (except the said E. Hopkins, Bice Hopkins, T. Hopkins and W. T. H. Phelps), did for himself and herself respectively, and his and her respective heirs, executors, and administrators, covenant, promise, and agree to and with the said R. Hopkins, &c., their executors and administrators, and each of them the said R. Hopkins, &c., did for himself, his heirs, executors, and administrators, covenant, promise, and agree with the said E. Welsh, H. Marsh, and W. Phelps, their executors and administrators, amongst other things in manner following, that is to say, that there should be a board of directors of the said company, and that certain persons in the said indenture mentioned should be the first directors of the said company, and that every registered proprietor for the time being of forty or more shares in the capital of the said company, and who should either be a party to and have executed the said indenture, or have become or be and have been a registered proprietor of forty or...