The Bank of Australasia v Harding
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1850 |
| Date | 01 January 1850 |
| Court | Court of Common Pleas |
English Reports Citation: 137 E.R. 1052
IN THE COURT OF COMMON PLEAS
S. C. 19 L. J. C. P. 345; 14 Jur. 1094. See Godard v. Gray, 1870, L. R. 6 Q. B. 150; Copin v. Adamson, 1874-75, L. R. 9 Ex. 350; 1 Ex. D. 17; In re Trufort, 1887, 36 Ch. C. 615; Risden Iron and Locomotive Works v. Furness, [1906] 1 K. B. 57. See also Bank of Australasia v. Nias, 1851, 16 Q. B. 717.
the bank of australasia v. harding. 1850. [S. C. 19 L. J. C. P. 345; 14 Jur. 1094. See Godard v. Gray, 1870, L. E. 6 Q. B. 150; Copin v. Adamson, 1874-75, L. E. 9 Ex. 350; 1 Ex. D. 17; In re Trufort, 1887, 36 Ch. D. 615 ; Eisden Iron and Locomotive Works v. Furness, [1906] 1 K. B. 57. See also Bank of Australasia v. Nias, 1851, 16 Q. B. 717.] The members, resident in England, of a company formed for the purpose of carrying on business in a place out of England, are bound, in respect of the transactions of that company, by the law of the country in which the business is carried on accordingly.-A statute authorising an unincorporated company to sue and to be sued in the name of its chairman, constitutes the chairman, when so suing or so sued, an agent for the members of the company in the affairs of the company.-The members of a company formed for the purpose of carrying on business in a colony, are not discharged from liability on judgments obtained in the colony against the chairman, by reason of their having been resident in England, not being served with process, and having received no notice of the proceedings.-Where a statute subjects the property of members for the time being of an unincorporated company, to execution upon a judgment obtained against their chairman, reserving in other respects the liabilities of parties, the remedies given against -the property are in cumulation, and a member may be proceeded against by action.-A judgment in a colonial court is no estoppel; nor is it pleadable in bar in an action brought in England for the same cause. Assumpsit. The first count of the declaration stated, that whereas, before and at the several times thereafter, in that count mentioned, several persons had formed themselves into a company, esta-[662]-blished at Sydney, in parts beyond the seas, to wit, in Her Majesty's Colony of New South Wales, under the name, style, and firm of the Bank of Australia, for the purpose of carrying on at Sydney aforesaid the trade and business of bankers (a)2, to wit, for the purposes of discount and issuing notes and bills, and lending moneys on securities and cash accounts; for the receiving of moneys on deposit account for the safe custody of moneys and securities for moneys for the general public accommodation and benefit; and also for transacting and negotiating all such other measures and things as were usually done and performed relating to or connected with the ordinary business of banking, and the said company were before and at the several times thereafter in that count mentioned, so carrying on at Sydney aforesaid the said trade and business of bankers : And whereas after the said formation and establishment of the said company, and whilst the same was carrying on the said trade and business, and before the bringing of such action as is therein mentioned, to wit, on the 28th day of August, 1833, a certain Act of the Governor and Legislative Council of New South Wales was made and passed relating to and concerning the said company, to wit, an act, intituled "An Act to enable the proprietors of a certain banking [663] establishment or company carried on in the town of Sydney in the colony of New South Wales, under the name, style, and firm of the Bank of Australia, to sue and be sued in the name of the chairman of the said bank or company for the time being, and for the purposes therein mentioned," which act was and is in the words and of the tenor following, that is to say: " Whereas several persons formed themselves in a company or society established at Sydney, under the name, style, or firm of the Bank of Australia, as well for the purposes of discount and issuing of notes and bills, and lending moneys on securities and cash accounts; for the receiving of moneys on deposit accounts; for the safe custody of moneys and securities for moneys for the general public accommodation and benefit; and also for transacting and negotiating all such other matters and things as are usually done and performed relating to or connected with the ordinary business of banking: And (a)i And see Evans v. Manero or Maners, 7 M. & W. 463, 9 Dowl. P. C. 256. (a)2 Vide 6 M. & G. 67 9C.B.664. THE BANK OF AUSTRALASIA V, HARDING 1053 whereas the said bank is now carried on in Sydney, and is under the care and management and superintendence of eleven directors, one of whom is chairman of the said Bank: And whereas difficulties may arise in recovering debts due to the said bank or company, and in maintaining actions or proceedings for damages done to their property, and also in prosecuting persons who may steal or embezzle the bills, notes, bonds, mortgages, moneys, goods, chattels, or effects of the said bank: And whereas it would be convenient and just that persons having demands against the said bank should be entitled to sue some member thereof in place and stead of the whole : But as these purposes cannot be effected without the aid and authority of the Legislature, Be it therefore enacted, by his Excellency the Governor of New South Wales, with the advice of the Legislative Council, that from and after the passing of this act, all actions and suits and all proceedings at law or in equity, to be com-[664]-menced and instituted, and prosecuted or carried on by or on behalf of the said bank; or when the said bank is or shall be in any way concerned, against any person or persons, body or bodies politic or corporate, or whether a member or members of the said bank, or otherwise, shall and may be lawfully commenced, instituted, and prosecuted or carried on in the name of the person who shall be chairman of the said bank at the time any such action, suit, or proceeding shall be commenced or instituted as the nominal plaintiff, complainant, or petitioner for and on behalf of the said bank, and that all actions, suits, or proceedings aforesaid to be commenced, instituted, or prosecuted against the said bank, shall be commenced, &c., against the chairman for the time being of the said bank, as the nominal defendant for and on behalf of the said bank, and that all prosecutions to be brought, instituted, or carried on, by or on behalf of the said bank for fraud upon or against the said bank, or for embezzlement, robbery, or stealing the bills, notes, bonds, moneys, goods, chattels, effects or property of the said bank, or for any other offence against the said bank, shall or may be so brought or instituted and carried on in the name of such chairman for the time being of the said bank; and in all indictments and informations it shall be lawful to state the property of the said bank to be the property of such chairman for the time being of such bank; and any offence committed with intent to injure or defraud the said bank shall and lawfully may, in any prosecution for the same, be stated or laid to have been committed with intent to injure or defraud such chairman for the time being of such bank; and any offender or offenders may thereupon be lawfully convicted of any such offence; and in all other allegations or indictments, informations or other proceedings, it shall and may be lawful and sufficient from and after the passing of this [665] act to state the name of such chairman; and the death, resignation, or removal, or other act of such chairman, shall not abate any such action, suit, or prosecution, but the same may be continued where it left off, and be prosecuted and carried on in the name of any person who may be or become chairman of the said bank for the time being. " And (sect. 2) that a memorial of the name of the chairman of the said bank, in the form or to the effect for that purpose set forth in the schedule hereunto annexed, signed by the said chairman and by a majority of the directors of the said bank, shall be recorded upon oath in the Supreme Court of New South Wales within thirty days after the passing of this act; and when and as often as any director of the said bank shall be newly elected chairman thereof, a memorial of the name of such newly-elected chairman, in the same form or to the same effect as the above-mentioned memorial, signed by such newly-elected chairman and a majority of persons who shall be directors of the said bank at the time of the election of such new chairman, shall in like manner be recorded upon oath in the said Supreme Court within thirty days next after such chairman shall be elected. "Provided always (sect. 3), and be it further enacted, that until such memorial as hereinbefore first mentioned, be recorded in the manner herein directed, no action, suit, or other proceeding shall be brought by the said bank in the name of the chairman of the said bank as aforesaid, under the authority of this act." Provided always (sect. 4), that the chairman being the plaintiff, complainant, petitioner, or defendant in any such action, suit, petition, or other proceeding as aforesaid, on behalf of the said bank, shall not prevent or [666] affect the competency of any such chairman so as to prevent him from being a witness in such action, &c., in the same manner as might have been if his name had not been made use of as such plaintiff, &c. 1054 THE BANK OF AUSTRALASIA V. HARDING 9C.B.667. Provided always (sect. 5), that execution upon any decree or judgment in any such action, suit, &c., obtained against the chairman for the time being of the said bank, whether he be plaintiff or defendant therein, may be issued against, and levied upon, the goods and chattels, lands, and tenements of any member or members whatsoever of the said bank for the time being...
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