bound to pay the draft. It is manifest to my mind that a bonâ fide holder of this check would have a remedy against the drawer upon it. It is plain that the negotiability of the instrument is not and never was affected by the crossing. I think the crossing operates as a private direction to the banker, and that, if made by the customer, the banker would be liable to him for disobeying it,-the crossing by the customer being tantamount to a direction to the banker to pay the draft only to or through another banker. But, if the crossing is put on by some one other than the maker of the draft, I have a difficulty in seeing how the banker could be held liable for not obeying it. Whoever drew this act must have seen the difficulty, or rather the impossibility, of making the crossing part of the instrument itself, and at the same time preserving the negotiable character of the draft.

The rest of the court concurring,

Appeal dismissed, with costs.

*469]

*POWIS v. BUTLER and Another, Executors of CHARLES WALTON, deceased. May 11.

Held, by the Exchequer Chamber,-affirming the judgment of the Court of Common Pleas,that the executors of one whose name has since his decease been inserted in the last filed memorial or return (under the 7 & 8 Vict. c. 113, s. 16), are not liable to execution on a judgment against the company, although the testator was properly returned as a shareholder in previous memorials.

ERROR upon a judgment of the Court of Common Pleas on a special case, the question being whether, under the circumstances stated in the case, the plaintiff was entitled to issue execution against the defendants as executors of one Charles Walton, deceased, upon a judgment obtained by him against the official manager of the Royal British Bank on the 2d of December, 1857, under the 7 & 8 Vict. c. 113.

It appeared on the case that Walton, the testator, died on the 16th of April, 1856, and that his name appeared in the memorial (the last) filed by the proper officer of the company, pursuant to s. 16, in June, 1856. The court below held that the executors were not liable: vide 3 C. B. N. S. 645 (E. C. L. R. vol. 91).

The case was now argued before Wightman, J., Erle, J., Crompton, J., Bramwell, B., Watson, B., and Channell, B.

Beasley, for the plaintiff in error.-Looking at the various sections of the statute, (a) and especially at the 6th and 7th, by which the shareholders for the time being, and their several executors, administrators, successors, and assigns, are incorporated, and at the 21st, which enacts that "the persons whose names shall appear from time to time in the then last-delivered memorial, and their legal representatives, shall be liable to all legal proceedings under this act as existing shareholders of *470] the company, and shall be entitled to be reimbursed, as such existing shareholders only, out of the funds or property of the company, for all losses sustained in consequence thereof," the defendants, as executors of a person whose name appears on the last filed (a) The learned counsel referred to and commented at great length upon the following sections, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 18, 19, 21, and 26.

memorial, are clearly liable. [WIGHTMAN, J.-The man was dead, when the memorial was filed.] The creditor can only look at the memorial as filed. The courts have already decided that the party against whom execution is sought need not be de facto a shareholder: Fry v. Russell, 3 C. B. N. S. 665 (E. C. L. R. vol. 91). [WIGHTMAN, J.-The defendants are charged in their representative character. It is incumbent on the plaintiff, therefore, to show that the person whom they represent was liable.] He is made so by the express language of the 21st section. [CROMPTON, J.-He had altogether ceased to be a "person" when the memorial was filed.] The statute makes the register conclusive evidence as to who are existing shareholders. [WIGHTMAN, J.-The statute must receive a fair and reasonable construction.] In Williams on Executors, 5th edit. 1583, it is said: "With respect to the liabilities of executors of shareholders in public companies, where the deed of settlement provides that the company shall continue for a certain term of years, and that the shares of a deceased proprietor shall belong to his personal representatives, but that they shall not be deemed proprietors until they are duly admitted, and have executed the deed of settlement, or done some other act, and then, and not before, they are to become proprietors and receive the dividends, it is established, that, on the death of a shareholder, his estate, and consequently his executors or administrators, in their representative capacity, continue liable until a new personal liability has been created pursuant to the deed;" citing In re Northern Coal Mining Company, 13 Beavan 133. In that case, by a deed of settlement of a public *company, it was provided that the company was to continue forty years, "that the shares of deceased pro- [*471 prietors should belong to their personal representatives," but that executors should never be deemed proprietors until they should be duly admitted proprietors, on approval by the directors, and had executed the deed, &c.," and then, but not before, they "were to become proprietors, and entitled to receive the dividends: and it was held, that, upon the death of a proprietor, his estate continued liable, until a new personal liability had been created pursuant to the deed. The master of the rolls (Lord Langdale) there says: The shares do not survive as in ordinary cases, and because they do not survive, but are expressly declared to belong to the personal estate of the deceased proprietor, they must, I think, belong to it, or form part of it, subject to the incidents attending the possession of a portion of the capital or assets of the partnership under the management of the directors, as provided for by the deed; and, if profits or losses arise, I think that a right to a share of the profits, and with that a liability to contribute a share of the losses, are necessarily incident to the shares themselves, or to the right to the shares." The Lords Justices have held that executors are liable as contributories under the winding-up acts. [CROMPTON, J.-That is a totally different matter.]

· Phipson, contrà, was not called upon.

WIGHTMAN, J.-I am of opinion that the judgment of the Court of Common Pleas was right, and must be affirmed. The question turns. upon the construction to be put upon the 21st section of the 7 & 8 Vict. c. 113, which enacts that "the persons whose names shall appear from time to time in the then last-delivered *memorial, and their legal [*472 representatives, shall be liable to all legal proceedings under this

act, as existing shareholders of the company, and shall be entitled to be reimbursed, as such existing shareholders only, out of the funds or property of the company, for all losses sustained in consequence thereof." In the present case, it may have been the duty of the officer of the company to deliver a memorial between the 28th of February and the 25th of March: but it was not filed until June; and, before the document was filed and became effective as a memorial, the individual whose representatives are now sought to be charged died. The question is, whether, under these circumstances, the deceased comes within the description in s. 21, of "a person whose name appears in the memorial." No doubt the name was on the last-delivered memorial; but it was not, within the fair and reasonable construction of the act, the name of a person, which must mean a living person. That seems to me to dispose of the whole matter. The defendants here are sued in their representative character. To render them liable in that character, it must be shown that the person whom they represent was a person whose name appears on the last-delivered memorial. Being then dead, he was not a person whose name could properly be upon the memorial. I therefore think that the judgment of the Court of Common Pleas was right, and must be affirmed.

BRAMWELL, B.-I am entirely of the same opinion, and shall only add a word or two to what has fallen from my Brother Wightman. Looking at the language of the 9th and 10th sections of the 7 & 8 Vict. c. 113, the meaning of the 21st section seems to me to be very obvious. The 9th section enacts that every judgment, decree, or order of any court of justice in any proceeding against the company, may

*473] be lawfully executed against, and shall have the like effect on,

the property and effects of the company, and also, subject to the provisions hereinafter contained, upon the person, property, and effects of every shareholder and former shareholder thereof, as if every individual shareholder and former shareholder had been by name a party to such proceeding." I do not find it provided in any part of the statute that the judgment is to have a greater effect than that. Now, a dead man could not be a party to the proceeding. The 10th section enacts that "it shall be lawful for the plaintiff to cause execution upon any judgment, decree, or order obtained by him in any such action or suit against the company, to be issued against the property and effects of the company; and, if such execution shall be ineffectual to obtain satisfaction of the sums sought to be recovered thereby, then it shall be lawful for him to have execution in satisfaction of such judgment, decree, or order against the person, property, and effects of any shareholder, or, in default of obtaining satisfaction of such judgment, decree, or order from any shareholder, against the person, property, and effects of any person who was a shareholder of the company at the time when the cause of action against the company arose: provided that no person having ceased to be a shareholder of the company shall be liable for the payment of any debt for which any such judgment, decree, or order, shall have been so obtained, for which he would not have been liable as a partner in case a suit had been originally brought against him for the same," &c. A dead man could not be liable as a partner. Then comes the 21st section, which enacts that "the persons whose names shall appear from time to time in the then last-delivered memorial, and their legal representatives,

[*474

shall be liable to all legal *proceedings under this act as existing shareholders of the company," &c. That is to say, they are the persons to whom recourse is to be had in the first instance to obtain satisfaction of the judgment. The 21st section was not intended to make any person liable who was not otherwise liable; but to describe what persons are within the one class and what within another. The rest of the court concurring,

Judgment affirmed.

VOL. IV.-19

END OF EASTER VACATION.

CASES

ARGUED AND DECIDED

IN THE

COURT OF COMMON PLEAS,

AND IN THE

EXCHEQUER CHAMBER,

IN

Crinity Cerm,

XXI. VICTORIA. 1858.

The Judges who usually sat in Banc in this Term, were:

IN the course of the last Vacation, Charles Petersdorff, Esq., of the Inner Temple, John Cross, Esq., of Gray's Inn and the Middle Temple, John Tozer, Esq., of Lincoln's Inn, and William Payne, Esq., of Gray's Inn, were respectively called to the degree of the Coif.

They gave rings with the following mottoes :

Serjt. Petersdorff,-"Nec mora nec requies."

Serjt. Cross,-"In Cruce fido."

Serjt. Tozer,-"Et tenui telas, discreverat auro."

Serjt. Payne,-"Reverentia legum."