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![handle is hein.slavery/ssactsengr0089 and id is 1 raw text is: THE BANK OF AUSTRALASIA V. NIAS
do not feel it necessary to add any thing to the reasons assigned by my brother
Wightman.
Rule absolute (a).
End of Hilary vacation.
[717] The following case, decided in Hilary term, 1851, has been.
unavoidably postponed.
THE BANK OF AUSTRALASIA against NIAS. 1851. By an Act of the Colonial Legis-
lature of New South Wales, it was provided that a banking company should sue
and be sued in the name of its chairman, and that execution on any judgment
against the company might be issued against the property of any member for the
time being, in like manner as if such judgment had been obtained against such
member personally. Ill assumpsit against a member of the company on a judg-
ment obtained in the colony against the chairman: Held, that the colonial
Legislature had authority to pass the Act, and that there was nothing repugnant
to the law of England, or to natural justice, in enacting that actions on contracts
made by the company in the colony, instead of being brought against the share-
holders individually, should be brought against the chairman whom they had
appointed to represent them. That a judgment recovered in such an action,
after service of process on the chairman, had the same effect beyond the territory
of the colony which it would have had if the defendant had been personally
served with process, and, he being a party to the record, the recovery had been
personally against him. That, although in an action on a foreign or colonial
judgment the judgment is examinable to a certain extent, as, for the purpose of
shewing want of jurisdiction, or that defendant was not summoned, or that the
judgment was fraudulently obtained, yet such judgment is not examinable upon
the merits, as, for the purpose of shewing that the contract sued upon was not
made, or was procured by fraud, or that the judgment was erroneous. But that
a foreign or colonial judgment obtained against a co-contractor cannot be insisted
on by way of merger in an action on the judgment.
[S. C. 20 L. J. Q. B. 284; 15 Jur. 967. Observations referred to, Simpson v. Fogo,
1863, 1 H. & M. 228. Applied, Vanquelin v. Bonard, 1863, 15 C. B. N. S. 368.
Adopted, Goddard v. Gray, 1870, L. R. 6 Q. B. 150. Referred to, Ellis v. M'Henry,
1871, L. R. 6 C. P. 239. Approved, Ochsenbein v. Papelier, 1873, L. R. 8 Ch. 699.
Applied, Copin v. Adamson, 1874-75, L. R. 9 Ex. 352; 1 Ex. D. 17; Abouloff v.
Oppenheimer, 1882, 10 Q. B. D. 301. Discussed, Voinet v. Barrett, 1885, 54 L. J.
Q. B. 522. Followed, In re Trufort, 1887, 36 Ch. D. 600. Referred to, Vadala v.
Lawes, 1890, 25 Q. B. D. 316. Approved, Risdon Iron and Locomotive Works v.
Furness, (1906] 1 K. B. 57.]
Assumpsit. The first count stated that, before and at the several times thereafter
mentioned, several persons had formed themselves into a company established 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, &c. ; and that the company
were, at the said several times, &c., so carrying on at Sydney the said trade and
business.
That, after the formation and establishment of the Bank of Australia, and whilst
the same was carrying on the business of bankers, and before the bringing of such
action as after mentioned, to wit on the 28th August (718] 1833, a certain Act of
the Governor and Legislative Council of New South Wales aforesaid was made and
passed relating to and concerning the company, to wit an Act intituled An Act to
enable the Proprietors of a certain Banking 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
(a) Reported in part by C. Blackburn, Esq.
1055
16 Q. B. 717.](ViewImageLocal?handle=hein.slavery/ssactsengr0089&div=1&collection=&method=preview&ext=.png&size=3)