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Decisions of the Superior Courts of New South Wales, 1788-1899

Polack v. Milne [1847] NSWSupC 47

partnership, enforcement of judgments

Supreme Court of New South Wales

Dickinson J., June 1847

Source: Sydney Morning Herald, 14 June 1847, in Supreme Court Collection, Vol. 1, p. 121

Mr. JUSTICE DICKINSON delivered judgment in this case as follows:-

This was an action in a scire facias brought by the plaintiff to recover from the defendant execution of a judgment recovered in an action of trover, against Alexander Brodie Spark and Thomas Shadforth, as members of a certain co-partnership, carrying on business in the said colony of New South Wales, under the name and style of the General Steam Navigation Company, who were sued in such action as such members as aforesaid, for and on behalf of the said co-partnership, according to the form and effect of a certain Act of the Governor and Council of our said colony, made and passed in the fourth year of our reign, and intituled "An Act to consolidate and amend the laws relating to actions against persons absent from the colony, and against persons sued as joint contractors," for the conversion by the said co-partnership of the plaintiff's goods. The declaration further alleged, that the damages were then unpaid and unsatisfied, and that the defendant at the time of the conversion was a member of the said co-partnership.

To this declaration the defendant pleaded, thirdly, That the damages did not still remain unsatisfied. Fourthly, That the said alleged conversion by the said co-partnership was not a conversion by him nor one to which he was a party, nor one authorised or assented to by him or by the said co-partnership; and that he had no notice nor any knowledge before the recovery of the said judgment of the plaintiff having brought the action; or any opportunity whatsoever of making a defence to it. And fifthly, That the action was brought by the plaintiff for a conversion for which he was not liable, as the plaintiff and Alexander Brodie Spark and Thomas Shadforth, at the time of the commencement of the action, and of the recovery of the said judgment, and of the payment and satisfaction in that plea after mentioned, well knew; and that after the recovery of the said judgment, and before the commencement of the suit on the scire facias , the plaintiff was paid and satisfied the damages for the said conversion by some person whose name was to him unknown, and that afterwards the plaintiff, well knowing the premises in that plea mentioned, and then having no further interest whatsoever in the said judgment, fraudulently and deceitfully, and by connivance with Alexander Brodie Spark and Thomas Shadforth, as members of the said co-partnership, and with the said person whose name was to him unknown, and with divers other persons whose names were respectively unknown to him, did suffer and allow the scire facias to be issued upon the judgment against this defendant, and to be served upon him in order that a portion of the amount of the said damages and costs might be obtained from him, as a member of the said co-partnership as by way of contribution, he not being liable to contribute; and with intent to benefit Alexander Brodie Spark and Thomas Shadforth, as such members as aforesaid, and the said several persons whose names were to him unknown, and not to benefit the plaintiff.

The plaintiff demurred to the third, fourth, and fifth pleas, for the causes (among others) noticed in our judgment; and the defendant in the demurrer book gave notice that he should object to the declaration in the scire facias , because it showed that the original judgment was wrongly entered up for the plaintiff, for a cause of action for which the co-partnership never could have been liable under the Local Act hereafter mentioned.

In the demurrer book the defendant gave notice that upon the argument he would object to the sufficiency of the declaration, upon the grounds that it did not show any liability on his part to pay the damages recovered in an action of tort against Spark and Shadforth, that it did not show that Spark and Shadforth were sued as joint contractors, and that it did not appear that the name of the defendant as an actual partner of the said co-partnership was at any time unknown to the said Abraham Polack, or otherwise unknown; and that it did not show that this defendant was a member of the said co-partnership at the time of the said conversion, and that was quite consistent with the allegations in the declaration that the defendant never authorised either expressly, or by construction of law, the commission of the said tort by the said co-partnership, and that this defendant first became a member of the General Steam Navigation Company on the day that judgment was recovered against the said Alexander Brodie Spark and Thomas Shadforth; and that the defendant did not in so becoming a member of the said co-partnership contract any liability either for breaches of contracts or torts previously committed by the said co-partnership.

The plaintiffs seek to charge the defendant in execution upon this judgment against Spark and Shadforth, by virtue of the Local Act, 4 Vict., No. 6, sec. 17 and sec. 24.

The 17th section is thus worded: "And whereas in some cases business is carried on in the said colony by persons in co-partnership, or by one individual or more assuming the style of a co-partnership, or acting as agent or agents for a co-partnership, and in some of these cases the names of the actual members of such co-partnership, or of some of them, are, or may be unknown, and in order to prevent any failure of justice in such cases: Be it enacted, that every such co-partnership, and the several members thereof, or the persons or person having carried on business under the style of any such co-partnership, may be sued in any action at law in the name or names of any one or more of the members of such co-partnership, on behalf of all the members composing the same, or in the name or names of such agent or agents for and on behalf of such co-partnership, so as that in all cases wherein it would have been necessary, if this Act had not been passed, to mention the names of all the members composing any such co-partnership , it shall be sufficient to mention only the name or names of such one or more member or members, or of such agent or agents on behalf of such co-partnership; and every judgment obtained in any such action shall have the same effect and operation upon the property, both real and personal, of such co-partnership, and also upon the property and persons of the several members thereof, when discovered, whether such property be joint or separate, as if every member of such co-partnership had been actually and in fact a defendant in the action."

Section 23 is: "And be it enacted, that nothing in this Act contained shall extend to any action of trespass or other action in tort (trover or detinue excepted) but to actions on, or arising out of, contract only.

The demurrers were argued last Term by Mr. Broadhurst, for the plaintiff, and Mr. Fisher, for the defendant. Mr. Broadhurst cited Bradley v. Eyre, 11 M. and W., 432; Simpson v. Lord Howden, 9 Ch. and Fin. 61. Mr. Fisher cited Phillipson v. Tempest, 1 Dowl. and L. 209: Bradley v. Urquhart, 11 M. and W., 456; Bosanquet v. Ramsford, 11 Ad. and El. 520; and Phillipson v. Lord Egremont, 6 C. B. 587.

We are of opinion that the third plea is bad, for traversing the payment which was prematurely alleged in the declaration. Nollis v. Palmer, 2 Bingh. N. C. 713. The plea of payment must necessarily be one in confession and avoidance, as it never could have been pleaded at all before the statute 4 and 5 Anne, c. 16, sec. 12. Had the averment of non-payment of damages been requisite by common law in the declaration on the scire facias , the defendant would have wanted no statutory aid to enable him to traverse such an allegation. The allegation of payment was therefore unnecessarily made in the declaration upon this scire facias .

We are of opinion also that the fourth plea is bad. By that plea he admits he was a partner at the time of the conversion, and by the Local Act the whole partnership became defendants in the action. We think, therefore, (as the plea suggests no fraud upon him) the defendant cannot be admitted to say he had no opportunity of defending the original action, nor to aver the other matters in the fourth plea contained, inasmuch as they would have been good defences to the last mentioned action.

We think moreover that the fifth plea is bad. It states that the action was brought for a conversion for which the defendant was liable, as the plaintiff and nominal defendants in the suit well knew.

The 5th plea appears to have been framed on the model of one of the pleas in Phillipson v. Lord Egremont 6. C. B. 587. In that case a plea, that the original action was brought against the registered officer for a demand in which neither he, nor the defendant, nor the Company was by law liable, and that such registered officer and the plaintiff well knowing the premises, the registered officer fraudulently and by connivance with the plaintiff, suffered judgment by default, in order and with intent, that the plaintiff might sue for and recover the amount against the defendant, was held good. But it appears to us that for aught that appears in the 5th plea, Spark v. Shadforth, may have honestly defended the original action for the benefit of the co-partnership upon the very ground alleged by the defendant; that being unsuccessful in that defence, and the co-partnership and the defendant having become liable to a writ of execution, some friend of Spark and Shadforth, in order that they should not individually bear the whole loss in the first instance, but that the defendant should at once contribute his share towards the common calamity of his partnership, bought the plaintiff's judgment, and used his name in the scire facias against the defendant. Such an argument, we think, would not be wrong in itself, and cannot be worse because the defendant in his 5th plea calls it a connivance, and without the averment of other facts than those mentioned in the 5th plea, we see nothing fraudulent or deceitful in it; and the assertion that there is fraud and deceit, without facts to show those incidents, we think amounts to nothing. We are therefore of opinion that the 5th plea is insufficient.

As to the objections to the declaration, they might have been sufficient to induce the Court to have arrested the judgment, or they may now be valid to induce the Court of Appeal to reverse it; but this Court having given its judgment, cannot have its propriety questioned in the proceeding which it has taken to enforce it. The judgment of the Court is therefore for the plaintiff.

Published by the Division of Law, Macquarie University