I am of opinion that the plaintiffs are entitled to judgment. From the pleadings it appears that the defendant was a member of a company who must be taken to have been a consenting party to the passing of the colonial act. He must, therefore, be regarded as having agreed that suits upon contracts entered into by the company, might be brought against the chairman, and that the chairman should for all purposes represent him in such actions. Being his own appointed agent, he had notice of the proceedings. If he had been resident in the colony, he could not have made himself party to the action, or in any manner personally interfered in the proceedings.

The 5th section of the act extends the remedy by execution to new shareholders who, but for this enactment, would not have been liable upon contracts to which they were not originally parties.

Talfourd, J. says at p. 688 (9 C.B.) :

The second question is, whether the fourth plea presents any answer to the cause of action set forth in the first count. That plea states that the defendant was never resident in New South Wales, and had no notice of the proceedings. The answer to that is that the defendant was a member of a partnership carrying on business in the colonies, and was contented to leave his property there to be regulated by the law of the colony.

The present case has been argued on behalf of the defendants mainly upon the ground that the plaintiff is seeking to enforce against the defendants a personal judgment obtained in Minnesota against the late Sir William Whyte, a non-resident and without notice. But the action is not in truth upon any such judgment, nor is it true that the proceedings in Minnesota which resulted in the appointment of the plaintiff as receiver and the assessment levied upon all the shareholders were carried on without notice to the defendants.

Mr. William Harvey, manager of the defendant company, was called as a witness before me and amongst the documents produced by him were the following:

(1) A notice from R. H. Owne, president of the O. W. Kerr Co., to the stockholders of the company, dated January 28, 1915, reciting that the company was in financial difficulties and the claims of its creditors were being pressed by suit and otherwise and giving notice of a special meeting of the holders of common and preferred stock to be held at Minneapolis on February 3, 1915, for the purpose of bringing before stockholders of said company its present acute financial condition and making such arrangement with reference thereto as might

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Judgment.

GALT, J.

be deemed advisable or necessary and adding, "It is of the Judgment. highest importance that you be present at said meeting."

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GALT, J. (2) A copy of an order made by Horace D. Dickenson, District Judge, dated at Minneapolis January 24, 1916, in an action brought by Thomas Hallaway, plaintiff, against The O. W. Kerr Company, defendant, whereby it was ordered that a petition of Edmund P. Allen, as receiver of the above-named defendant company, be heard at a special term of said Court to be held at the Court House in the City of Minneapolis on Saturday, the 11th day of March, 1916, at the hour of 10.00 a.m. at which time after proof of due service of this order the Court will receive and consider such proof by affidavit or otherwise as may be presented or offered on said petition or in relation to the matter therein contained by or on behalf of the said receiver, or any creditor, officer or stockholder of said corporation or any person interested therein appearing in person or by attorney, and particularly upon the following points: 1. The nature and probable extent of the indebtedness of the said defendant corporation. 2. The probable expenses of the receivership. 3. The probable amount of the available assets. 4. The parties liable as stockholders, the nature and extent of the liability of each and their probable solvency or insolvency.

And it is further ordered that the said receiver give notice of such hearing by causing a copy of this order to be published once each week for four successive weeks in the Minneapolis Tribune, a daily newspaper printed and published in the said Hennepin County, and by causing a copy of this order to be mailed to each of the stockholders of the said defendant corporation whose post office address is known to the said receiver or his attorneys at least thirty days prior to the date of said hearing.

(3) Copy of order made by W. E. Hale, District Judge, on April 1, 1916, in the said suit of Hallaway v. O. W. Kerr Co. This order contains a very full recital of the proceedings by Edmund P. Allen as receiver of the defendant corporation for an assessment upon the shareholders of the corporation and the appearance of several stockholders thereupon who moved to dismiss the petition upon the ground that the said Court had no jurisdiction to make any order of assessment or any order for the purpose of enforcing the double liability against the stockholders of the said O. W. Kerr Company: and that by order of 13th March, 1915, the said Edmund P. Allen was appointed receiver with all the usual powers of a receiver of said court; and that all the assets of said defendant corporation were by the said order sequestered; and that the receiver had given the requisite security; and that the plaintiff had recovered judgment for $1,446.04, and that the defendant corporation is insolvent, and it further appearing that the constitutional liability of the stockholders of the said corporation exists and

that it is necessary to resort to the same; it was ordered that an assessment equal to the par value of each share of the capital stock of the said defendant corporation, to wit, the sum of $100 on each and every share of said capital stock be and the same is hereby assessed upon and against each and every share of the said capital stock and upon and against the persons or parties liable as stockholders of the said defendant corporation and that each and every person or party liable as such stockholders do pay to the said Edmund P. Allen as receiver the said liability within thirty days from the date of this order and that the said receiver forthwith proceed to collect the several amounts due from the several persons or parties liable as stockholders of the said defendant corporation under the terms of this order, and that in case any person liable as a stockholder should fail to pay the amount assessed within the time limited the receiver is authorised to institute and prosecute such action or actions at law or in equity or other proceedings in any court having jurisdiction whether in the state of Minnesota or elsewhere, which said receiver may deem necessary, &c., and it is further ordered that the said receiver give notice of this order by mailing a copy of the same within five days from the date hereof to each stockholder of the said defendant corporation whose name and address is known to the said receiver or to his attorneys or either of them.

Mr. Harvey admitted that these documents were received at the office of the defendant company at about their dates; but that the defendants ignored the demands made by the receiver for payment.

As a general rule, when a judgment is entered, the original cause of action merges in the judgment.

But this is not necessarily so with regard to foreign judgments (See Bank of Australia v. Harding, supra). The order of assessment in the present case does not appear to be recognized as a judgment even in Minnesota, for the order itself authorizes the receiver to prosecute actions at law or in equity against any defaulting shareholders, a provision which would be absurd if the order itself operated as judgment..

The liability sought to be enforced against the estate of the late Sir William Whyte is a constitutional liability, expressed in the statutes as follows:

Each stockholder in any corporation, excepting those organized for the purpose of carrying on any kind of manufacturing or mechanical business, shall be liable to the amount of stock held or owned by him. [See Revised Statutes of Minnesota, 1905, p. 1186].

This law is still in force as appears from the Revised Statutes of 1913 and by oral expert evidence. The construction placed upon this provision by the Supreme Court of the

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Judgment.

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GALT, J.

United States, and now applied by the Courts in Minnesota, Judgment. is that it is a provision intended to protect the creditors of companies and that it imposes upon all shareholders a liability over and above any balance remaining due upon their shares, to the full extent of the par value of their shares. It operates as a double liability.

The wording of the section does not clearly to my mind. express a double liability. We have in Canada a liability of this kind in The Bank Act, 3 & 4 Geo. V., ch. 9. It is expressed in our statutes as follows:

In the event of the property and assets of the bank being insufficient to pay its debts and liabilities, each shareholder of the bank shall be liable for the deficiency, to an amount equal to the par value of the shares held by him, in addition to any amount not paid up on such shares.

But if the law of Minnesota be taken to be the proper law of the contract, the interpretation of it cannot depend upon the view taken of it by any particular Judge or Court here in Manitoba. This point came before the Court of Queen's Bench in England in the Baron De Bode's Case (1844) 8 Q.B. 208, 10 Jur. 217.

Lord Denman, C.J., says, at p. 250 (8 Q.B.):

The witness, upon being questioned as to the state of law in France in 1789, refers to a decree of that date. The form of the question is, I think, immaterial: in effect, the witness is asked to speak to the decree. It is objected that this is a violation of the general principle, that the contents of a written instrument can be shown only by producing the instrument or accounting for the non-production. But there is another general rule: that the opinions of persons of science must be received as to the facts of their science. That rule applies to the evidence of legal men: and I think it is not confined to un-written law, but extends also to the written laws which such men are bound to know. Properly speaking, the nature of such evidence is, not to set forth the contents of the written law, but its effect and the state of law resulting from it. The mere contents, indeed, might often mislead persons not familiar with the particular system of law: the witness is called upon to state what law does result from the instrument.

Mr. Justice Coleridge says, at p. 265 (8 Q.B.):

* *

What in truth is it that we ask the witness? Not to tell us what the written law states, but, generally what the law is. The question is not as to the language of the written law *. The question for us is, not what the language of the written law is, but what the law is altogether as shown by exposition, interpretation and adjudication.

To the same effect were the opinions expressed by the Law Lords in the Sussex Peerage Case (1844) 11 Cl. & F. 85, at pp. 114-117, 8 Jur. 793.

These two decisions are quoted in the last edition of Westlake's Private International Law as being still leading authorities on the subject.

In the present case Mr. Allen, a competent expert on the law of Minnesota, testified as to what that law was, and his evidence was not shaken by cross-examination. I therefore feel bound to accept such evidence as accurate.

It is true that stockholders in any companies organized for the purpose of carrying on any kind of manufacturing or mechanical business are excepted from the double liability; and Mr. Williams points out that under the powers conferred upon the company by its certificate of incorporation the company has power amongst other things, to sell and dispose of gristmills, flour-mills, &c., and to do and perform all things necessary in connection therewith; but Mr. Morphy on behalf of the plaintiff, showed very clearly that this exception is confined in Minnesota to companies exclusively carrying on a manufacturing or mechanical business, which cannot be said of the O. W. Kerr Company.

My findings upon the evidence are as follows:

1. That the O. W. Kerr Company was duly incorporated in the state of Minnesota as set forth in the statement of claim in the year 1907. The certificate of incorporation provides that

The undersigned agree to and do hereby associate themselves as a body corporate for the purposes hereinafter expressed, and do hereby, under and pursuant to the laws of the State of Minnesota incorporate ourselves and our successors, and to that end we hereby adopt and sign the following certificate of incorporation.

2. That on or about January 25, 1911, William Whyte (afterwards Sir William Whyte) purchased 50 shares of the preferred stock of the O. W. Kerr Company through Mr. William Harvey then acting as the company's agent for the purpose in Winnipeg; and that William Whyte thereby became a preferred shareholder, and received from time to time divi

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Judgment.

GALT, J.