1843.-Barker v. Buttress.

the same demand, and the former proceedings may be pleaded in bar. The present proceedings are quite inconsistent with this provision.

Mr. Bazalgette, in reply.

THE MASTER OF THE ROLLS:-This case is undoubtedly one of very great importance; and, considering the extent to which it may affect a great variety of transactions dependent upon this act of parliament, I cannot help feeling some regret both at the time and the mode in which it has been brought forward.

The decree in this cause was made in the simple and usual form, "to take an account of the debts, funeral expenses, and legacies of the testator." It is evident, therefore, that I have to consider what sort of claims can be established under such a decree, and I must have regard to the time when this matter was first brought forward. The parties being desirous to avoid a decision on any technical ground, I am willing, so far "as the facts of the case will allow, to state my opinion [*142] as if these claims under the decree had been brought forward in the most favorable form.

The question arises, first, upon the rights of these parties under the act of parliament, which has been so often referred to; and, secondly, upon any rights they may have independent of that act. The act was passed to relieve the public from certain restrictions imposed on bankers, in consequence of an agreement between Government and the Bank of England. It provided that persons who entered into banking partnerships might do various things previously prohibited, and, at the same time, it created a number of liabilities which did not previously exist. While it provided various facilities to creditors of banking companies, it subjected the persons engaged in them to various new liabilities, and also provided certain new regulations for enforcing them. These, in my opinion, were intended as an exoneration from those liabilities, to which, under other circumstances, the members would have been subject.

The first section provides, that every member shall be liable for all bills, &c., such person being a member at the date of the

1843.-Barker v. Buttress.

bills, or at the time of their being payable, or while owing or unpaid. So that any person, being a member, at any time between the date of the contract and the time when the debt arising therefrom is satisfied, is to become liable for its payment. A person might not be a party or liable to the contract: he might not be a member of the copartnership at the time when proceedings were taken to enforce it, but by becoming a member at an

intermediate period between the contract and the judg[*143] ment, he would thereby render "himself liable to the payment. This is no small advantage given to the creditor of such a concern. It is a liability attaching to any person becoming a member at any time between the periods I have referred to.

In a subsequent part, this act of parliament proceeds to point out the mode in which satisfaction is to be obtained; and I can entertain no doubt (quite independently of the cases cited) that the remedies thus given, are for the satisfaction of liabilities previously created by the act, and for no others. What then is the remedy provided for by this act? Actions are to be brought against the registered "public officer;" when judgment has been obtained against him, it is to be considered as a judgment against the property of the partnership and all its members. How is the judgment to be executed? First, execution is to be had against any existing member. Nothing could be more just than that execution should go against those persons who are virtually parties to the proceedings upon which judgment has been obtained their liability had been provided for before, although they might not have been parties to the contract, but might have become members afterwards, and be members at the time the proceedings took place which led to the judgment. These are the persons against whom execution is to issue in the first place. The act then provides, that if this execution should be ineffectual for obtaining payment of the amount of the judgment, the plaintiff may issue execution against any persons who were members at the time when the contract was entered into; secondly, against persons who became members at any time before such contract was executed; and thirdly, against persons who were members at the time the judgment was obtained, and this fol

1844-Barker v. Buttress.

lows:-" Provided that no such execution as last mentioned shall be issued without leave first granted, on motion in open court, by the court in which such judgment shall have [*144] been obtained, aud when motion shall be made, on notice

to the person or persons sought to be charged, nor after the expi ration of three years next after any such person or persons shall have ceased to be a member or members of such corporation or copartnership." This then is a clear limitation of three years within which execution is to issue against such persons.

Let me apply this provision to the present case. The testator here necessarily ceased to be a member upon his death, in March, 1839. The proceedings against the public officer, on which the judgments were obtained, were adopted some time after his death, Now it has been admitted that execution could not, in any view, issue against the executors; they were not registered members, and the case was not provided for by the act. Suppose then that this act of parliament affords an exclusive remedy in the cases only which are distinctly provided for, is a party, in a case not provided for by the act, to be at liberty to resort to any other remedy which, under other circumstances, law or equity would afford? Law would afford him no remedy; that is perfectly clear, because the debt would survive. Would equity afford him a remedy? If it would, must it not govern itself by analogy to the limitation of time, at the expiration of which the legal liability would cease? There being perfectly new liabilities created by this act of parliament, and for which a specific remedy is provided, and there being a party living, against whom that remedy is to be enforced, would a court of equity taking away entirely that protection which was intended to be afforded by the limitation of time, interfere, not for the purpose of relieving the creditor from the difficulty arising by reason of the death of the member of the concern, but in order to relieve him altogether from the limitation of time which is distinctly provided [*145] by the act of parliament? I must say, that I do not think it would.

It is very true, that at the time of Mr. Barker's death, he was subject to a liability; and it has very naturally been argued, that there being a liability, there must be some remedy by which the VOL. VII.

16

1843.-Barker v. Buttress.

rights of the creditor may be made effectual and profitable. But what is that liability? It is a liability to have execution issued against him and his property before, but not after, the expiration of three years from the time the party ceased to be a member. That alone was this testator's liability. Notwithstanding the general words which are contained in the first clause of the act, yet taking all the clauses together, looking at the means of making these liabilities effectual, and seeing that they were first created by this act, we find this express limitation,-that the liability is not to be enforced, by execution, after the expiration of three years from the time when the party shall have ceased to be a member of the copartnership.

That being so, I do not see how I can grant any sort of relief, in a case in which the application is made to this court long after the expiration of those three years. I do not mean to say any thing as to the relief which might have been afforded, if a bill had been filed by these claimants within the three years; but this seems clear to me, that if, in such a case as this, relief is to be had in this court against the assets of a deceased party, it must be sought before the legal liability under this act would have expired, if the party had continued alive. In this state of the record, I do not think that any remedy can be given to the claimants in the present case.[1]

I should state, that I think that a petition is the proper *146] course of proceeding in a case like the present. "The

[1]" It is right that all persons engaged in a joint stock company should be made subject to the liabilities which the law has imposed on them. In this case the act of parliament contains a provision for issuing execution against any member; but to suppose that the members are in the situation of common partners engaged in trade, and subject to the same liabilities, is very much to mistake the matter. Here, the defendant, who became a partner after the transaction had taken place but during the liability, has since ceased to be a partner. Having been a partner during the liability, it is possible he may be personally liable; but having ceased to be a partner, he cannot be compelled, at the peril of perpetual imprisonment to furnish discovery which he swears he is unable to give." Lord Langdale, M. R. Ell. wand v. McDonnell, 8 Beav. 21. As to remedy given by statute being substitutional or cumulative, see further, The Barnsley Canal Company'v. Twibell, ante, 19; Birley v. Constables &c. of Chorlton-upon-Medlock, 3 Beav. 499; Morris v. The Duke of Norfolk, 9 Sim. 489, 490.

1844.-Clapham v. Shillito.

matter does not come within the scope of the decree, and the master, therefore, could not properly consider it.

The exceptions must be overruled, and the petition dismissed, and with costs.

CLAPHAM v. SHILLITO.

1844: January 24; February 1, 16.

Consideration of the effect, in equity, of misrepresentation made by parties upon ontering into contracts.

Cases have frequently occurred, in which, upon entering into contracts, misrepre sentations made by one party have not been, in any degree, relied on by the other party. If the party to whom the representations were made, himself resorted to the proper means of verification, before he entered into the contract, it may ap. pear that he relied upon the result of his own investigation and inquiry, and not upon the representations made to him by the other party; or if the means of investigation and verification be at hand, and the attention of the party receiving the representations be drawn to them, the circumstances of the case may be such as to make it incumbent on a court of justice to impute to him a knowledge of the result, which, upon due inquiry, he ought to have obtained, and thus the notion of reliance on the representations made to him may be excluded. Again, when the court is endeavoring to ascertain what reliance was placed on representations, it must consider them with reference to the subject matter, and the relative knowledge of the parties. If the subject is capable of being accurately known, and one party is, or is supposed to be, possessed of accurate knowledge, and the other is entirely ignorant, and a contract is entered into, after representations made by the party who knows, or is supposed to know, without any means of verification being resorted to by the other, it may well enough be presumed, that the ignorant man relied on the statements made by him who was supposed to be better informed; but if the subject is in its nature uncertain, if all that is known about it is matter of inference from something else, and if the parties making it, and receiving representations on the subject, have equal knowledge, and means of acquiring knowledge, and equal skill, it is not easy to presume that representations made by one would have much or any influence upon the other.

THIS was a motion for a new trial of an issue directed by the the court. The circumstances fully appear in the judgment.