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![handle is hein.slavery/ssactsengr0303 and id is 1 raw text is: STOCKDALE V. DUNLOP
pro-[223]-ceeding by scire facias, and which would seem to be the one most appropriate
for such an occasion. We think this case is of too much importance for us to put any
construction on the act of Parliament, by which parties who might wish to take the
opinions of all the Judges would be prevented from doing so. It is true these joint
stock banks place the public in a very disadvantageous position, for it now appears
that in these cases there must, or probably will, be a trial of two actions instead of
one: first, in order to establish the claim of the creditor against the company, &c. ;
and secondly, to fix the particular individual liable to execution. However, I do not
see how we can adopt any other course than that which the Court of Queen's Bench,
on consideration, has taken ; and I think we justly may, by a very proper analogy to
other cases of proceedings by scire facias, apply those proceedings to the present case.
The rule is, wherever you seek to fix one party on a judgment given against another,
it must be done by scire facias ; and I think that is a principle which applies to the
case of a public officer, who is merely the representative of the parties sought to be
charged. It appears to me, and I believe that is the opinion of the Court, that the
construction of the 13th clause of the statute must be taken to be this :-that the
party who wishes to proceed upon the judgment against one of th6 members of the
company not on the record, if he be a member at the time of the judgment and
execution, would have a right to his scire facias without an application to the Court;
but if the members against whom he should sue out execution should prove to be
insolvent, he may then apply to the Court, so as to fix the original members at the
time the contract was made, and make them still liable; in that case, he must come
to the Court to have his scire facias.
ALDERSON, B. It is proper that the Court should see [224] that there has been
a bonh fide attempt made to fix all the members of the company for the time being
before any execution be allowed to go against members not in that condition.
Rule discharged, without costs.
STOCKDALE AND ANOTHER v. DUNLOP. Exch. of Pleas. 1840.-Messrs. H. & Co.,
being the owners of two ships, called the Antelope and the Maria, trading
to the coast of Africa, and which were then expected to arrive in Liverpool with
cargoes of palm oil, agreed verbally to sell to the plaintiffs 200 tons of oil-100
tons to arrive by the Antelope, and 100 tons to arrive by the '.' Maria. The
Antelope did afterwards arrive with 100 tons of oil on board, which were
delivered by H. & Co. to the plaintiffs. The Maria, having 50 tons of palm
oil on board, was lost by perils of the sea. The plaintiffs having insured the oil
on board the Maria, together with their expected profits thereon :-Held, that
they had no insurable interest, as the contract they had entered into with H. & Co.,
being verbal only, was incapable of being enforced.
(S. C. 9 L. J. Ex. 83 ; 4 Jur. 681. Discussed, Felthouse v. Bindley, 1862, 11 C. B.
(N. S.) 877. Applied, Stock v. Inglis, 1882, 9 Q. B. D. 720: reversed, 12 Q. B. D.
564. Referred to, Johnson v. Macdonald, 1842, 9 M. & W. 602.]
Assumpsit. The declaration stated, that before the making the policy of insurance
thereinafter mentioned, to wit, on the 31st July, 1838, certain persons carrying on
the trade and business of merchants, under the name and style of Thomas Harrison
& Co., bargained and sold to the said plaintiffs divers, to wit, 200 tons of palm oil, at
a certain rate or price then agreed upon between the plaintiffs and the defendant, to
wit, the sum of £36 per ton, to arrive by two ships of the said Thomas Harrison & Co.,
called the Antelope and the Maria, that is to say, 100 tons of such oil by the
Antelope, and the other 100 tons by the Maria; and whereas also the said two
ships, before the making the said bargain and sale, had been and were engaged upon
a trading voyage to the coast of Africa for the said Thomas Harrison & Co., and, at
the time of the making the said bargain and sale, were expected to arrive at Liverpool,
in the county aforesaid, with cargoes on board thereof respectively, composed, amongst
other things, of palm oil; and whereas also, after the making the said bargain and
sale, to wit, on the 1st of September, 1838, the said vessel called the Antelope
arrived at Liverpool aforesaid with divers quantities of palm oil on board, and the said
Thomas Harrison & Co. delivered to the said plaintiffs 100 tons of palm oil there-[225]-
from, in part performance of the said bargain and sale of the said 200 tons of palm oil
6 X. & W. 223.](ViewImageLocal?handle=hein.slavery/ssactsengr0303&div=1&collection=&method=preview&ext=.png&size=3)