No. X.
An Act to facilitate Proceedings by and against the Proprietors of a certain Jo in t Stock Com pany lately carrying on business in Sydney in the Colony of New South Wales under the name style or firm of the " Australian Auction Company" and for other purposes therein
| mentioned. | [1st September, | 1841.] |
| WH E R E A S a cer ta in | South W a l e s u n d e r t he n a m e style or firm of t he " A u s t r a l i a n A u c t i o n |
| J o i n t | Stock | Company which la te ly carr ied |
on business as auct ioneers in Sydney in t h e Colony of N e w
Company " h a v e me t wi th great difficulty in t he prosecut ion of ac t ions b r o u g h t for t h e recovery of debts ju s t ly due to t h e said company a n d whereas it would facilitate the se t t lement of t h e affairs of t h e said company and be of publ ic u t i l i ty and advan tage t h a t all claims for a n d
| of some one m e m b e r thereof whose n a m e and descr ipt ion should be recorded for t he informat ion of t h e publ ic b u t as these purposes cannot be obtained wi thou t t he aid and au tho r i t y of t h e Leg is la tu re Be i t therefore enacted by H i s Excel lency t h e Governor of N e w South Wales wi th t he advice of the Legislat ive Counci l thereof Tha t from and after t he pass ing of th i s Ac t all act ions sui ts or proceedings whe the r a t law or in equi ty in bank rup t cy or seques t ra t ion or otherwise howsoever to be commenced ins t i tu ted or prosecuted by or on behalf of t he said company or any person or persons as t rus tee or t rus tees of t h e said Company agains t any body or bodies polit ic or corpora te or agains t any person or persons whe the r a member or members of t h e said com pany or otherwise in respect of any debt c laim r ight cause of act ion in teres t or l iabil i ty whatsoever now subsis t ing or to arise hereafter out of or in respect of or r e la t ing to any such debt c la im r igh t cause; of act ion in teres t or l iabil i ty media te ly or immedia te ly shal l a n d m a y | be |
| against t h e said company exis t ing before t h e pass ing of th i s Ac t | should |
| be sued for by and | prosecuted | agains t t h e said company in t h e n a m e |
| be commenced ins t i tu ted | or | prosecuted in t h e n a m e of t he | C h a i r m a n |
| of t he Cour t of Di rec tors for t h e t ime be ing of t h e | said company as |
| t h e nomina l plaintiff | compla inan t or pe t i t ioner | for and on behalf of |
t h e said company a n d t h a t all ac t ions sui ts or proceedings a t law or in equi ty or otherwise as aforesaid to be commenced ins t i tu ted or prosecuted against t h e said company by or on behalf of any body or bodies pol i t ic or corpora te or by or on behalf of any person or persons w h e t h e r a m e m b e r or members of t h e said company or otherwise shal l and m a y be commenced ins t i tu ted or prosecuted against t he Cha i rman of t h e Cour t of Di rec tors for t h e t ime be ing of t h e said company as t h e nomina l defendant for and on behalf of t h e said company or if the re be no such Cha i rman of t h e Cour t of Di rec tors for t h e t ime being of t he said company t h e n a n d in t h a t case aga ins t any member or member s of t h e said company Provided never theless t ha t no th ing he re in contained shall p reven t any plaintiff or plaintiffs from jo in ing any member or member s of such company w i t h t h e Cha i rman of t he Cour t of Direc tors for t h e t ime being of t h e said company as a defendant or defendants in equi ty for t h e purpose of discovery or in case of fraud A n d provided fur ther t h a t no c la im or demand which any member of t h e said company m a y have aga ins t t he said company in respect of his share of the capi tal or jo in t s tock thereof or of any dividends in teres t profits or bonus payable or appor t ionable in respect of such share shall be capable of be ing set off ci ther at law or in equi ty aga ins t any demand which such company m a y have against such m e m b e r on account of any o ther m a t t e r or t h i n g whatsoever b u t al l proceedings in respect of such m a t t e r or t h i n g m a y be carr ied on as if no c la im or demand existed in respect of such capi ta l or jo in t stock or of any dividends in teres t profits or bonus payable or appor t ionable in respect thereof.
| 2. A n d be i t enacted | Tha t al l | c r imina l informat ions | a n d |
prosecut ions to be b r o u g h t ins t i tu ted or carr ied on by or on behalf of t h e said company for fraud upon or against t h e said company or for embezzlement or robbery or for counter fe i t ing or steal ing t he bil ls notes bonds monies securi t ies goods cha t te l s effects or other p roper ty of or be long ing to t h e said company or for any felony misdemeanor or o ther offence commit ted agains t or wi th in t en t to injure or defraud
| t h e | said | company | shal l | a n d | lawfully | may be b r o u g h t i n s t i t u t ed or |
| carr ied on in t h e n a m e of t he C h a i r m a n | of | t h e Cour t of | Di rec tors | for |
t h e t ime being of t h e said company a n d in all i nd ic tmen t s informat ions and other proceedings as aforesaid it shall and m a y be lawful and
| sufficient to describe t h e p roper ty of t he said | company as t h e p roper ty |
| of t he C h a i r m a n of t he Cour t of Directors for | t h e t ime be ing of t h e |
said company a n d t h a t any offence commi t t ed wi th in ten t t o in jure or defraud t h e said company shal l and lawfully m a y in any prosecut ion for or on account of t h e same be s ta ted to have been commit ted wi th in ten t t o injure or defraud t h e C h a i r m a n of t he Cour t of Di rec to r s for t h e t ime be ing of t he said company and any offender or offenders m a y t h e r e u p o n be lawfully convicted of any such offence and in any o ther a l legat ions or ind ic tments informat ions or o ther proceedings for or on behalf of t h e said company i t shall and m a y be lawful and sufficient from and after t he pass ing of th i s Ac t from t i m e to t i m e to s ta te t h e n a m e of t h e C h a i r m a n of t he Cour t of Directors for t h e t ime be ing of t h e said company as t he nomina l plaintiff compla inant or pet i t ioner and the dea th res ignat ion or remova l or o ther act of such C h a i r m a n or change in t h e m e m b e r s of t he said company by transfer of shares or otherwise shall no t abate any such action suit or prosecut ion or o ther proceeding b u t the same m a y be cont inued prosecuted a n d
| carr ied on in t he n a m e of any person who m a y be or become | C h a i r m a n |
of t h e Cour t of Direc tors for t h e t ime being of t h e said company.
| 3. A n d he i t enacted | Tha t a memor ia l of t he n a m e of t he |
C h a i r m a n of t h e Cour t of Direc tors for t h e t ime being of t he said company in t h e form or to the effect of t h e form set for th in t he Schedule to th i s Ac t annexed signed by the said Cha i rman and by a major i ty of t h e said Cour t of Di rec tors shall be recorded u p o n oa th in t h e S u p r e m e Cour t of N e w South Wales wi th in th i r ty days after t he pass ing of t h i s A c t and when and so often as any C h a i r m a n of the Cour t of Directors of t h e said company shal l be newly elected or a C h a i r m a n shal l be subs t i tu ted for t h e Cha i rman of t he Cour t of Directors for t h e t ime be ing of t h e said company a memor ia l of t h e n a m e of such newly elected or subs t i tu ted Cha i rman of t he said Court of Di rec tors in t h e same form or to t he same effect as t h e hereinbefore m e n t i o n e d memor ia l signed by such newly elected or subs t i tu ted C h a i r m a n and by a major i ty of t he said Cour t of Directors shall in l ike m a n n e r be recorded upon oa th in t h e said Supreme Cour t w i th in t h i r t y
| days after such election or | subs t i tu t ion . |
4. Provided always a n d be i t enac ted T h a t u n t i l such memorial
as hereinbefore first ment ioned be recorded in m a n n e r hereinbefore directed no act ion suit or o ther proceeding shall be b rough t by the said company in t he n a m e of t he C h a i r m a n of t h e Cour t of Directors
| thereof as aforesaid unde r t h e au thor i ty of th i s | Ac t . |
5. A n d be it enacted Tha t in all act ions sui ts pet i t ions or o ther proceedings whe ther civil or cr iminal in which t h e said Cha i rman of t he Cour t of Direc tors for t he t ime being of t he said company or any m e m b e r of t he said company shall be on behalf of such company and unde r and by v i r tue of th i s A c t plaintiff compla inan t pet i t ioner or defendant it shal l and m a y be lawful for such Cha i rman or member or for any officer engaged in t he execut ive duties of t he said company to give evidence in such action suit pe t i t ion or o ther proceeding n o t w i t h s t a n d i n g the n a m e of such C h a i r m a n or member shal l be used
| as plaintiff | compla inan t pet i t ioner or defendant | and | no twi th s t and ing |
t h a t such C h a i r m a n member or officer as aforesaid shall or m a y be in teres ted in t h e resul t of such act ion sui t pe t i t ion or other proceeding as a shareholder or co-par tner in t he said company.
| (5. A n d be it enacted T h a t all cont rac ts agreements conveyances leases releases ass ignments su r renders covenants receipts and other documen t s made or to be m a d e given or g ran ted by or to or on behalf of t h e said company re la t ing to any such now subsis t ing debt c la im r igh t cause of act ion in teres t or l iabi l i ty as aforesaid shall and may be made and executed and enforced by or to or agains t t he Chair | m a n of t he Cour t of Direc tors for t he t i m e be ing of t he said company | and the same shall be b ind ing upon the said company and t h e capital |
s tock thereof and pass al l t he es ta te and in teres t of t h e said company.
7. A n d be i t enacted Tha t execut ion upon any decree or |
| j u d g m e n t | in | any | act ion | sui t | pe t i t ion | or o ther proceeding | obtained | |
| aga ins t t h e Cha i rman of t h e Cour t of Directors for t h e t ime being or o ther member of t he said company as aforesaid whe ther as plaintiff or defendant may be issued agains t and levied and satisfied upon and out of t he goods chat te ls lands and tenements of any m e m b e r or members whomsoever of t he said company for t h e t ime be ing as if such decree or j u d g m e n t had been obta ined agains t such m e m b e r or members personal ly . |
| 8. A n d be it enacted T h a t for t h e purpose of giving bet ter effect to t h e provision last hereinbefore contained t h e Cha i rman of the Cour t of Di rec tors for the t i m e be ing of t h e said company shall wi thin t h i r t y days from the pass ing of th i s Ac t and thereaf ter in the mon th of J a n u a r y in each year so long as th i s Ac t shall r emain in force cause a t r u e list of t h e names of all t h e t hen ex is t ing members of the said company wi th the i r respective places of abode and descript ions to |
be
be recorded on oath in t h e office of t h e Reg i s t r a r of t he Supreme Cour t and t h e same shal l be open for inspect ion a t a l l reasonable t imes by any person r equ i r i ng t h e same on paymen t of a fee of one shi l l ing and if such C h a i r m a n shal l fail to cause such l ist to be recorded in m a n n e r aforesaid he shal l be l iable to a pena l ty of one h u n d r e d pounds to be recovered by ac t ion of debt in t h e said Supreme Cour t by any person or persons who shal l sue for t he same.
9. A n d be it enacted Tha t every person whose n a m e shall be
so recorded shall be considered a m e m b e r of t h e said company and be
l iable as such u n t i l a n e w list of t h e m e m b e r s ' names shall be recorded
| as aforesaid or u n t i l he shall have given not ice in t h e New | South |
| Wales Government | Gazette of his r e t i r ement from the said company |
| Provided | a lways t h a t | every C h a i r m a n of t h e | Cour t of Directors | for |
t h e t i m e being of t h e said company in whose n a m e any act ion sui t pe t i t ion or o ther proceeding shall be commenced prosecuted carried on or defended and every m e m b e r or member s of t he said company agains t whose goods chat te l s lands or t enemen t s execut ion shall be so issued as aforesaid shal l a lways be re imbursed a n d paid ou t of the funds of t he said company all such damages costs and expenses as by t h e event of any such proceedings such C h a i r m a n or member or m e m b e r s shall or m a y be p u t u n t o in respect thereof and all such remedies shall be al lowed as be tween t h e several member s of t he said company for t h e t ime be ing as if th i s A c t had not been passed P r o vided never the less t h a t t h e body of such C h a i r m a n shal l not by reason of his be ing defendant in any such action suit or proceeding be liable
| to be arres ted seized or t a k e n in | execut ion. |
| 10. A n d | be | it | enac ted | Tha t | t h e b a n k r u p t c y | insolvency | or |
s topping p a y m e n t of any Officer Di rec tor C h a i r m a n or other member of t he said company in his indiv idual capaci ty shal l n o t be const rued to be t h e b a n k r u p t c y insolvency or s topping p a y m e n t of t h e said company and t h a t t h e p rope r ty and effects of t h e said company a n d t h e persons p rope r ty and effects of t h e indiv idual members thereof shal l n o t w i t h s t a n d i n g such b a n k r u p t c y insolvency or s topping p a y m e n t
| be | l iable | to | execut ion | in t h e | same m a n n e r | as if such | b a n k r u p t c y |
| insolvency | or | s topping p a y m e n t | h a d no t t a k e n | place. |
| 1 1 . A n d be it enacted Tha t t h e | provisions | of th i s A c t | shal l |
ex tend to t h e said company at all t imes d u r i n g the con t inuance of t h e same no twi th s t and ing any change in t he member s thereof by t ransfer of shares or otherwise howsoever.
| 12. Prov ided always a n d | be | it | enac ted Tha t n o t h i n g | here in |
| conta ined shall ex tend or be deemed t a k e n or cons t rued to incorporate |
| t h e m e m b e r s of t h e said | company | or to relieve or discharge | t h e m or |
| any of t h e m from any responsibi l i ty | dut ies | cont rac t s | or | obligations |
whatsoever wh ich by law they now are or a t any t i m e hereafter shall be subject or l iable to e i ther between t h e said company and o thers or be tween the ind iv idua l member s of t h e said company or any of t h e m and others or a m o n g themselves or in any other m a n n e r whatsoever except so far as t h e same is affected by t h e provisions of th i s Ac t and
| t h e t r u e | in ten t | and m e a n i n g | of t h e | same. |
| 13 . | A n d | be | i t | enac ted | T h a t | all | bonds | mor tgages w a r r a n t s of |
a t to rney and other securit ies no t be ing assignable in law and all con t r ac t s and agreements whe the r paro l or u n d e r seal which have been or
| shall or m a y a t any t ime hereafter be t a k e n in t h e n a m e of t he | Chair |
m a n of t h e Cour t of Directors for t h e t ime be ing of t h e said company for or on account of t he said company in any way re la t ing to or ar is ing out of such now subsis t ing debt c laim r igh t cause of act ion in teres t or l iabil i ty as aforesaid shall and m a y be p u t in suit and enforced sued and prosecuted u p o n a t law or in equ i ty in t h e n a m e of t h e Cha i rman of t h e Cour t of Directors for t h e t ime being of t he said company in whose n a m e
t h e
t he same m a y have been t aken or entered in to or in the n a m e of any person who shal l or m a y succeed to t h a t office and be t he C h a i r m a n of t h e Cour t of Direc tors for t he t ime being of t h e said company at t h e t i m e such proceeding or proceedings shall be ins t i tu ted carried on or con t inued n o t w i t h s t a n d i n g the n a m e of any such succeeding C h a i r m a n be not inser ted in any such bond mor tgage w a r r a n t of a t to rney or other such secur i ty or in any such cont rac t or ag reement as an obligee mor tgagee assignee or payee of t h e s u m or sums of money the re in respectively men t ioned or secured and the death res ignat ion removal or o ther act of any C h a i r m a n of t h e Cour t of Direc tors for t he t ime being of the said company in whose n a m e any such bond mor tgage w a r r a n t of a t to rney or o ther such securi ty as aforesaid or any such cont rac t or agreement shal l be so p u t in suit shal l no t aba te any act ion suit or o ther pro ceeding had the reon b u t t he same may l)e cont inued and carried on where it left off in t he n a m e of any person who may be or become the C h a i r m a n of the Cour t of Di rec tors for t h e t ime be ing of tin; said company and t h e legal estate in all lands t enemen t s and all p roper ty veal and personal belonging or mor tgaged to tin; said company for all legal r igh t s and capacities in respect of t he said company shal l and may become vested in t h e succeeding C h a i r m a n of t he Cour t of Directors for t he t ime be ing immedia te ly upon the recording of t he memoria l hereinbefore requi red of t he n a m e of such succeeding C h a i r m a n of the Cour t of Di rec tors for t he t ime be ing of the said company in t h e said Supreme Cour t and so on toties quoties whensoever any new appoint m e n t election or subs t i tu t ion of a Cha i rman of t he Cour t of Directors for t he t i m e being of t h e said company shall t ake place and such memor ia l thereof shall be recorded as aforesaid.
14. A n d be it enacted Tha t in any action to be b r o u g h t by any Cha i rman of t he Cour t of Directors for t h e t ime being of t he said company by v i r tue of this Ac t t h e plaintiff there in shall not be non sui ted no r shall a verdict be given aga ins t t he plaintiff for wan t of proof of t he record of such memor ia l or memor ia l s as hereinbefore men t ioned nor shall t he existence of such memor ia l be t aken to be in issue unless specially desired by any defendant b u t in case the defen dan t in any such act ion shal l specially deny on the record t ha t any such memor ia l has been duly recorded as aforesaid and shall m a k e it appear on such tr ial t h a t no such memor ia l has been so recorded t h e n a non-su i t shal l be en te red in such action.
| 15. Provided a lways and be it | enacted T h a t n o t h i n g | in | th i s |
| A c t conta ined shall be deemed to affect or apply to any r igh t t i t le or | interest of H e r Majesty H e r H e i r s or Successors or of any body poli t ic | or corpora te or of any person or persons except ing such as are |
| ment ioned there in or of those c la iming by or unde r h im her or them. |
| 16. A n d be i t enacted Tha t th is Ac t shal l commence and t ake effect from and after t he pass ing thereof a n d shal l cont inue in force for two years thereaf ter and not longer save a n d except as to any act ion suit prosecut ion or other proceeding a t law or in equi ty actual ly commenced or ins t i tu ted which no twi ths t and ing th is Act shall have expired m a y be carr ied on in all respects whatsoever as if the same had con t inued in force. |
| 17. A n d be it enacted Tha t th i s Act shal l be deemed and t aken to be a Pub l i c Act and shall be judicial ly t aken not ice of as such by the J u d g e s of t he Supreme Cour t of New South "Wales and of t he several Circui t Cour ts t h r o u g h o u t t he Colony and by all o ther J u d g e s |
| Jus t ices | a n d | others wi th in | t he Colony of N e w South W a l e s and | its | |
| Dependencies wi thou t be ing specially pleaded. |