25 Vt. 73 | Vt. | 1852
The opinion of the court was delivered by
This action is founded upon a bill of exchange, drawn by what -was called th'e “ Union Bank of Montreal, Lower ■Canada,” upon H. Gray & Co., New York, on the 14th day of August, 1841, payable to the order of the plaintiff. It is claimed, and the declaration proceeds upon the ground, that this “ Union Bank,” was an unincorporated joint stock company, and that Henry Thomas was, at the time this bill was drawn, one of the company, and as such, liable as a partner upon this bill. ■ We think, that the trial below must-be regarded as a mistrial. The liabilities of the members of this joint stock company, should be judged of, by the laws of Canada. Though it may be true that the bill itself should be governed by the laws of the place where it is made payable, yet,
The court evidently intended to try this case upon the principles of the common law. No allusion is made in the charge of the court, to the laws of Canada. In this there was an error; and we think if the case had been to be tried upon the principles of the common law, it must be regarded as á mistrial. It appeared from the testimony of Bean and Gray, that this association was formed, and went into operation, in 1838, or 1839, as an unincorporated company, and in the name of the “ Union Bank of Montreal,” and that the drawing of bills of exchange, was a part of their ordinary business; and Bean testifies, that after this association was formed, and while it was in operation, and he thinks in 1840, Henry Thomas became a stockholder in said bank, by the purchase of stock of the bank, and that he continued as such, down to the tíme, and until after, the bill in question was drawn.
It was also in proof, that this bank, or association, was managed by Bean, who acted as cashier, and H. Gray, and one James, now deceased, who were the ostensible directors, or managers; and that, in addition to these, there were others having a secret interest in the concern, as stockholders; and that Chandler, in the absence of the cashier, was authorized to draw bills of exchange.
The court, after giving the jury instructions, in regard to the law of the case, in case they should find that Thomas held himself out as a partner, concluded by saying, that if they did not so find,it
If the two depositions of Bean taken together, tended to prove a liability upon this bill, on the part of Thomas, upon common law principles they should have been submitted to the jury with proper instructions. I suppose the law to be settled, that the members of a joint stock company, are liable, in solido, for the debts contracted by the company. In Carlew v. Drury, 1 Ves. & B. 157, Lord Eldon says, “I hold it clear, that each individual is, at law, an- “ swerable for the amount of the whole of the debts of the concern.” And in that very case, the articles provided, that one thousand persons might eventually become interested in the concern.
In Keasley v. Codd, 2 Car. & Payne 408, note, Abbott, Ch. J. speaking of joint stock companies, says: “ It is important that the “ public should know, that if persons connect themselves with a “ company of this description, they are every one of them, liable “ to pay the demands upon it.” The testimony of Bean, if credited, went to show that Col. Thomas was a shareholder in this bank at the time the bill in question was drawn. In the case of Harrison v. Heathorn, 6 Man. & G. 81, it was held, that the attending in the character of a shareholder, a meeting of the members of a joint stock company, was sufficient prima facie evidence, that the party was a shareholder, to charge him with an engagement, entered into, by a majority of the shareholders, at a subsequent meeting, which he did not attend. The particular terms of a partnership, are of
In regard to the questions arising, relative to the notice to the drawers, of the presentment and non-payment of the bill, we do not find it necessary to express any opinion at this time.
The result must be a reversal of the judgment of the County Court, and the cause go down for another trial.