Steward, Public Officer of the East of England Bank, Company v Greaves and Others

[?ll] steward, Public Officer of the East of England Hank, &c. v. greavbs and others. Exch. of Pleas. Dec. 9, 1842.-The creditor of a banking co-partnership, established and carrying on business under the stat. 7 Geo. 4, c. 4G, cannot sue an individual member of the company for his debt, but must proceed against the public officer, pursuant to the 9th section of that act:-at least, where it appears that there is a public officer, and that he is within the jurisdiction.- Therefore, a plea to an action against an individual member of the company, which stated that the causes of action accrued against a certain banking copartnership established under the 7 Geo. 4, c. 46, and not otherwise, of which co-partnership the defendant was a member; that the causes of action accruted against the defendant as such member and not otherwise; that S. B. and - W. D. had been duly appointed and registered pursuant to the statute, as public officers of the copartnership, to sue and be sued on behalf of the same, and that the said persons, so being, and being duly nominated and appointed and registered as such public officers, at the time of the commencement of the suit, were living and resident in England, and within the jurisdiction of the Court,-was held a good answer to the action.-Such a plea is properly pleaded in bar, and not in abatement.-Held, also, that the plea was not bad as amounting to an urgu- ; rnentative denial of the contract, for that it admitted that the defendant contracted, but avoided the effect of that admission by the statutable exemption 10M.&W. 712. STEWARD V. GREAVES 659 from an action in his favour:-that the plea need not state that the public officers were nominated while the company carried on the business of banking, by issuing notes, &c. ; or that the causes of action did not arise against the defendant in his character as a banker.-Held, also, that tho plea, taking it altogether, sufficiently alleged that the two persons therein mentioned actually were public officers of the company. [S. C. 2 Dowl. (N. S.) 485 : 12 L. J. Ex. 109; 6 Jur. 1116. Referred to, Steward v. Dunn, 1843, 11 M. & W. 64.] Assumpsit for money lent, money paid, money had and received, and upon an account stated. Second plea, that the said causes of action accrued against a certain co-partnership, called "The Southern District Banking Company," established under the 7 Geo. 4, c. 46, and not otherwise, of which said co-partnership the defendants, at the time of the accruing of the causes of action, were members ; that the said causes of action accrued against the defendants as such members, and not otherwise; that one S. Bovill and one W. Dunn had been duly appointed and registered pursuant to the said statute, as public officers of the said co-partnership, to sue and be sued for and on behalf of the same, according to the statute, and the said persons so being, and being duly nominated and appointed and registered as such public officers at the time of the commencement of this suit, were living and resident in England, and within the jurisdiction of this Court at the commencement of this suit. Verification. Third plea, that the said causes of action accrued against the said co-partnership called "The Southern District Banking Company," of which, at the accruing of the said causes of action, the said defendants were members jointly [712] with one J. W. Gilbart and J. A. Batho, and who, at &c., were resident in England, and the said causes of action accrued against the said defendants jointly with the said J. W. Gilbart and J. A. Batho, and not against the said defendants alone ; that the said J. W. Gilbart and J. A. Batho, before, and at &c., were and from thence hitherto have been and still are, members and co-partners of and in the said co-partnership in the declaration mentioned, called " The East of England Bank," and that the said plaintiff sues as such public officer of such bank, and as the nominal plaintiff on behalf of the members of the said East of England Bank, arid amongst others, of the said .JVW. Gilbart and J. A. Batho. Verification. Special demurrer to the second and third pleas, assigning for causes:-To the second plea,^first, that the act of Parliament does not preclude the plaintiff from suing the said defendants as he has done, and that it is not obligatory ou him to bring his action against one of the public officers; secondly, that the plea is a plea in bar, and the objection stated in the plea can only be taken on a plea in abatement; thirdly, that the plea is an argumentative denial of the existence of the causes of action in the declaration, and amounts to non assumpsit, and that it does not traverse nor confess and avoid the causes of action; fourthly, that it does not appear by the said plea, that Bovill and Dunn ever were public officers of the co-partnership, whilst the co-partnership were carrying on business under the said act; fifthly, that it does not appear by the said plea, that the cause of action accrued against the co-partnership of persons, in respect of any matters connected with a trading under the provisions of the said act; and that it is...