if a deed of transfer be relied on, that it has been registered. See notes to sections 9 and 15. If a deed of transfer have been executed, but not delivered to the secretary to be entered, the company may either prove that the defendant is the holder of a share by the deed, or that the defendant is registered as a shareholder-in other words, they have the choice of action against two parties. The following cases have been decided on the validity of declarations under different statutes: Dundalk Rail. way Company v. Tapster, 1 Q. B. 667; 2 Railway Cases, 586. The Aylesbury Railway Company v. Mount, 4 M. & Gr. 651; 2 Railway Cases, 679. 3 Id. 469. The Great North of England Railway Company v. Biddulph, 7 M. & W. 243. Southampton Dock Company v. Richards, 1 M. & Gr. 448; 2 Railway Cases, 215. Thames Haven Railway Company v. Hall, 5 M. & Gr. 274; 3 Railway Cases, 441,-and see forms in the Addenda, where other cases are referred to, as containing precedents in pleading connected with this subject.

If the defendant suffer judgment by default, a rule to compute cannot be had, but there must be a writ of inquiry. Chel tenham and Great Western Union Railway Company v. Fry, 7 Dowl. P. C. 616.

In an action for two calls, brought by the Birmingham and Aylesbury Railway Company, it appeared the act provided, that upon the trial it should be only necessary to prove that the defendant, at the time of the making of the respective calls, was the proprietor of a share in the undertaking. The act also required that there should be twenty-one days' notice of the making of the calls. Notice of the first call was given on the 6th of March, to be payable on the 9th of April: of the second call, on the 23rd of June, to be payable on the 28th of July. The defendant became a proprietor by the transfer of shares on the 7th of April; and it was held, that he was not liable for a call made previously, but not required to be paid till after the 7th of April; so that there was a verdict against him for the amount of the second, but not of the first call. The Birming ham and Aylesbury Railway Company v. Thompson, Law Journal, 1841; Q. B. 124; 2 Nichol, Hare & Carrow, 668.

In the case, however, of The Aylesbury Railway Company v Mount, 4 M. & Gr. 651; L. J. 1842; C. P. 258, where the act provided, that it should only be necessary to prove that the defendant at the time of making the calls was a proprietor, and that the call was made and notice given: it was held, (in C. P.) that where a proprietor had transferred his shares after a call had been made, but before it was payable, such transfer having been duly entered and endorsed, the company had no right of action against such proprietor.

This judgment was reversed in the Exechequer Chamber in error, on other grounds, the Court declining to decide this point.

Where the special act makes an express condition precedent to the powers of the act being put in force, it seems that the performance of such condition must be proved, at least if specially traversed.

Accordingly, where the statute provided, that "the whole of the said sum of 100,000l. shall be subscribed before any of the powers and provisions given by this act shall be put in force,' and by a subsequent section, that in any action for calls it should only be necessary for the company to prove that the defendant, at the time of making such call, was an owner of shares in the undertaking, that such call was in fact made, and that such notice thereof was given as is directed by the act; and that the company should thereupon be entitled to recover that which should appear to be due. The company made a call on the shares before the subscriptions were complete, and commenced an action for the call after they were so; the action was held not to be maintainable, the completion of the subscription list being necessary to enable the company to make the call, as well as to bring the action. Norwich and Lowestoft Navigation Company v. Theobald, 1 M. & M. 151. Defences of this sort, however, have latterly been discouraged, and that part of sec. 27, which specifies what defences may be set up, materially re

stricts them.

In an action for calls by a Railway Company, the terms of whose act required it to be first proved that the party was a proprietor, and that due notice of calls had been given, the Court refused leave to the defendant to join with pleas denying those facts, others raising the question, that the calls were made for other than the purposes of the act, and after deviations from the line not warranted, and that fewer shares had been allotted than the act required, as being against the policy as well as the terms of the act, The London and Brighton Railway Company v. Wilson, 6 Bing. N. S. 135, 1 Railway Cases, 530. And see, Edinburgh and Leith Railway Company v. Hebblewhite, 2 Railway Cases, 237, and 8 Dowl. 40.

Where an act gave a general form of declaration for calls, and provided that it should be only necessary to prove the defendant a proprietor at the time of the calls being made, the fact of their being made, and notice given, the Court allowed only the pleas of nunq. indeb., that defendant was not a proprietor, and that the shares were forfeited and disallowed; others raising issues as to the legality of the meeting of the directors when the calls were made, and stating that no notice had been given according to the act, or time or place of payment appointed, that the calls were not made for the purposes of the act, or upon all the shareholders, or by competent persons, were disallowed. South Eastern Railway Company v. Hebblewhite, 4 P. & D. 247; 12 Ad. & Ell. 497.

In the former case, (Brighton Railway Company v. Wilson),

Tindal, C. J. says, "If we were to grant these pleas, we shou be deciding against the real meaning of the statute, which stat that the money shall be recoverable in a certain way. Wi regard to the question, whether the calls were made with a pr per object or not, that is a matter which the parties should lit gate privately among themselves, and which belongs to anoth forum and another place than a Court of law; and if the parti oppose the proceedings of their directors, it is their duty to di cuss their objections at the general meeting of the subscribe and if the day of general meeting is inconveniently distant, th in twenty-one days a special general meeting for the purpo may be called. It seems to me, however, that it was never i tended, that a question so general in its nature should be di cussed in a public Court of justice. With regard to the pl alleging a deviation, and that the money is called for to pay t expenses consequently incurred, what would be the effect allowing such an answer? If any deviation, to the extent three yards only, was made with the consent of the perso whose land adjoins the work, and a call was afterwards ma every person might stay his hand, refuse to pay the call, and t whole undertaking would be broken up altogether. Then as the other plea, that at the time of the calls being made th were not 36,000 shares in the company, the 136th section of act provides, that the capital of the company shall be 1,800,00 divided into 36,000 shares of 507. each. There may not 36,000 shares called into action, or for which subscribers h been found, but if there is this capital, the act says that it is be divided into so many shares." Bosanquet, J.-"The con quences of allowing these defences would be, that if the co pany, which is established for certain purposes, should do one thing illegally which cost money, then a defendant, in st an action as this, would be entitled to set up a defence, that t expense had been incurred, and that the calls were made for purpose of the liquidation of the charge."

The following pleas were allowed by an order of Littledale in an action for calls:

1. Never indebted.

2. Defendants not proprietors of shares.

3. Before calls made they had sold them to R.

4. Before calls made, directors declared the shares forfeit 5. Calls not necessary.

6. No notice of them.

7. No time, &c. appointed for payment.

8. That defendants bought of a holder who had not Į the calls.

Eastern Counties Railway Company v. Cooke and Other Railway Cases, 250. An application was made to strike the fourth plea, as it did not show that the forfeiture been confirmed by the company, but the Court thought

point too doubtful. See Edinburgh and Leith Railway Company v. Hebblewhite infrà. It appears that the fifth, sixth, and seventh pleas, at all events, would not now be allowed. In another case similar pleas were allowed, the only difference being that instead of the third plea in the last-mentioned case, the following was substituted, "That defendant was not an original proprietor, but bought from persons having no title, because they had no transfer from the original proprietors in the form required by the Act." South Eastern Railway Company v. Fairclough, 2 Railway Cases, 250.

Where the pleas were― 1. Never indebted.

2. Defendant not a proprietor.

3. By non-payment of previous calls, he had forfeited his shares before the making of the calls now sued for.

4. He had forfeited his shares and ceased to be a proprietor after the making of these calls, and before the commencement of the action.

The first and second only were allowed, the third being unnecessary, and the fourth contrary to the spirit and meaning of the act. London and Brighton Railway Company v. Fairclough, 6 Bing. N. C. 270.

And see post Addenda, as to the pleas which amount to the general issue; such pleas would not be allowed to be pleaded together with the general issue.

Notwithstanding the words of the above 27th section, that the company shall recover if certain things be proved, other defences than those specified may be available; for example, that after the call was made, the company have exercised their option of declaring the calls forfeited—a plea to that effect, however, must state all circumstances necessary to show that a forfeiture has actually taken place: as that the declaration of forfeiture was confirmed at a general meeting, &c. Edinburgh and Leith Railway Company v. Hebblewhite, 6 M. & W. 707; 8 Dowl. 299. The general form of declaration must be taken to have alleged all things necessary to be proved, and the defendant may, by his plea, deny a fact necessary to be proved, (but not expressly alleged), but must conclude to the country. Ibid.

ship.

XXVIII. The production of the Register of Share- Proof of holders shall be prima facie evidence of such defen- proprietordant being a shareholder, and of the number and amount of his shares (a).

(a) The Registry of Shareholders will not be vitiated for the purpose of evidence against a shareholder, by some irregularities with respect to the entry of other shareholders. See Southampton Dock Company v. Richards, and Same v. Arnett, 2 Rail

way Cases, 215, 1 M. & Gr. 448; West London Railway Company v. Bernard, 3 Q. B. 873; 3 Railway Cases, 649. Birmingham, Bristol, and Thames Junction Railway Company v. White, 1 Q. B. 282. See Same v. Locke, 1 Q. B. 256. London and Grand Junction Railway Company v. Freeman, 2 Railway Cases, 468. Same v. Graham, 1 Q. B. 271. v. Gavestone, ib. Cheltenham Railway Company v. Price, I C. & P. 58.

Where an act directed th atthe company should prepare a list of shareholders in a book to be kept by the secretary, and that in an action for calls, the production of the book should be prima facie evidence of proprietorship, it was held to be no objection to the admissibility of the book produced as the book kept under the act, to prove the defendant a proprietor, that an irregularity or omission should be shewn to exist with respect to the entries relating to other shareholders; the provision as to the entries to be made in the book being directory only, and not essential. Southampton Dock Company v. Richards, 1 M. & Gr. 448. See London and Brighton Railway Company v. Fairclough, 2 Man. & Gr. 674; Law J. 1841, C. P. 133. London Grand Junction Railway Company v. Graham. Same v. Gunston, 1 Q. B. 271. Birmingham, Bristol and Thames Railway Company v. Locke, 1 Q. B. 256. London and Grand Junction Railway Company v. Freeman, 2 Man. & Gr. 606. In the last case, the book was held to be prima facie evidence, though irregularly kept, and it was held, that the holders of scrip certificates were properly entered before the passing of the act as proprietors in the undertaking, though they had neither signed the Parliamentary contract, nor been originally subscribers.

Also that this evidence was not rebutted by proof that a third party was the original subscriber in respect of the shares in question.

Where the statute directed that a deed of transfer should be kept by the company, and a memorial of it entered in a book, and such entry was made, with a memorial dated 7th April; was held, in an action for calls, that this was sufficient evidence of the time of the transfer, so as to make the defendant a proprietor from that date, without evidence to shew when the entry

was, in fact, made. The Birmingham and Aylesbury Railway Company v. Thompson, Law J. 1841, Q. B. 124.

When a proprietor is sued for calls, he will not be allowed to inspect the company's books, particularly with respect to the calls sued upon, for the purpose of framing his plea. A rule nisi for such inspection was in one case refused. The Birmingham, Bristol, and Thames Junction Railway Company, v. White, 1 Q. B. 282. An allottee of shares in a projected railway company, when called upon to pay money in respect of the shares allotted to him, is entitled to inspect the subscribers' agreement and Parliamentary contract, those deeds being within