entitled to claim for *part of the work more than he had con*396] tracted to do the whole for. When the very stringent nature of the proceeding under these provisions is looked at, I think it is incumbent on the party availing himself of them to be very careful.

CROWDER, J.-I am of the same opinion. In considering these cases, we must not disregard the verdict, though we are not bound by it. Here, the jury have found that the plaintiff was entitled to an amount considerably less than that sworn to. Parties who seek to enforce payment of debts by a process so stringent should be exceedingly cautious not to exaggerate their claims: and I think, that, in considering whether or not there is reasonable or probable cause, we ought to look, not so much at what may have been the motive operating on the man's mind, as at the surrounding circumstances and the law as applicable to them. It seems to me that there is no pretence for saying that the plaintiff had any reasonable ground for acting as he did.

WILLES, J.-I am of the same opinion. By the terms of the contract, the plaintiff was to be paid 2001. if he performed it fully. The utmost, therefore, that he could have recovered if he had performed his duty perfectly would have been 2001. He failed to perform it in several particulars. He might, however, be forgiven for supposing that he had sufficiently performed his contract so far as the tie-rods were concerned. But there is another defect of a still more serious nature: he fell short in the performance of his contract by 251. according to his own account, and by 401. according to the evidence of his own witness. The utmost he could recover, therefore,-assuming that he was entitled to recover for a wrongful dismissal,-would be, 1657., and such profit as he could have made by completing the *work under the contract; and that *397] could not in any event exceed 1907. Any person making out a fair bill would not have claimed more than that sum. But the plaintiff sent in a bill for 2281. The plaintiff has thought proper to pledge his oath, and by the stringency of the proceedings under the bankrupt act has sought to compel the defendants to pay him a sum which he must or ought to have known he was not entitled to. I therefore think it is a clear case within the 86th section. Having thus improvidently sought to avail himself of the statute in a case to which it was not fairly applicable, the plaintiff must bear the penalty imposed by that section.

Rule absolute.

EDWARDS and Others v. THE KILKENNY AND GREAT SOUTHERN AND WESTERN RAILWAY COMPANY.

May 6.

The court refused to suspend or enlarge a rule for a sci. fa. against a shareholder in a railway company, upon a suggestion that the claim in respect of which the judgment against the company was obtained was founded upon an attorney's bill contracted by them in the prosecution of matters altogether ultrà vires.

LUSH, on a former day in this term, obtained a rule calling upon James Butterworth to show cause why a writ or writs of scire facias on the judgment obtained by the plaintiffs in this cause should not be issued forth against him as a shareholder of the Kilkenny and Great Southern and Western Railway Company, to enable the plaintiffs to have execution upon the said judgment to satisfy the plaintiffs the sum of 44177. 38. 10d., the debt and costs recovered by the said judgment and still unpaid, to the extent of the said James Butterworth's shares in the capital of the said company not paid up, pursuant to the Companies Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 16. The affidavits upon which the motion was founded, stated that the company were indebted to the plaintiffs for work and labour as solicitors *for business done by them for the company from the year 1847 to the 31st [*398 of October, 1854; that the company was incorporated by an act of 9 & 10 Vict. c. ccclx. (which act incorporated the Companies Clauses Consolidation Act, 1845), and that final judgment was signed against the company on the 18th of December, 1854, for 44137. 158. 10d. debt, and 31. 88. costs; that a sum of 2751. had been received by the plaintiffs since the judgment was recovered, and that the company were justly indebted to the plaintiffs in the sum of 41387. 158. 10d. for debt, and 31. 88. for costs; that a fi. fa. was issued upon the judgment, and returned nulla bona; that the defendants had not at the timeof thejudgment, or at any time since, or now, any lands, chattels, goods, or effects in England or Ireland whereon the plaintiffs could levy the amount of the said judg ment, or any part thereof; and that due notice of this application was personally served on the 18th of February last. There was also an affidavit of the secretary of the company which stated that the company had not nor ever had any lands, chattels, goods, or effects either in England, or Ireland, whereon the plaintiffs could levy the amount of the judgment, or any part thereof; that Mr. Butterworth was a shareholder of the company, and that his name was on the sealed register of shareholders for the years 1848 and 1854, as the holder of twenty shares of the value of 201. each, upon which the sum of 17. 108. each share had been paid; that two calls of 10s. upon each of the said shares had been paid, and one call of 108. upon each of the said shares was now due; and that the said shares had never been transferred, and the same were still standing in the name of Mr. Butterworth in the sealed registered share list.

Millward, for Butterworth, applied for an enlargement of the rule in order to enable him to make inquiries as *to the circum*399] stances under which the debt was contracted. The application was supported by an affidavit alleging that the plaintiffs' bill was contracted in the prosecution by the company of matters which were altogether ultrà vires, in abortive attempts to obtain the sanction of parliament thereto, and in the defence of proceedings against shareholders. [COCKBURN, C. J.-Does your affidavit show that you have reasonable ground for believing that you will obtain the information required?] It does.(a)

:

(a) The affidavit was that of Mr. Butterworth, which stated, that, in or about the year 1846, in consequence of seeing a prospectus of a projected railway called The Galway and Kilkenny Railway, he applied for shares in the undertaking, and twenty shares were allotted to him accordingly that, according to such prospectus, the proposed railway was to connect the towns or places of Galway, Ballinasloe, Cuddagh, and Kilkenny, and to be in the whole about ninetysix miles in length, and the capital was to consist of 1,000,0007., divided into 40,000 shares of 251. each that, subsequently to the issuing of such prospectus, and the allotment to him of the said shares, the directors of the proposed company abandoned the greater part of the said projected railway, and confined the same to a line from Kilkenny to Cuddagh, a distance of twenty-six miles only, and that the proposed capital of the said company was at the same time reduced to 225,000., divided into 11,250 shares of 201. each, and the title of the company changed from The Galway and Kilkenny Railway Company to the Kilkenny and Great Southern and Western Railway Company: that an act of parliament was obtained for the said railway, as thus altered, in the session of 1846, and received the royal assent on the 7th of August in that year: that no steps were, as deponent was informed and believed, taken after the passing of the act towards making the proposed railway, the company having, as deponent was informed and believed, no funds, and their affairs being in a very embarrassed state, and the powers for taking land and constructing the works, which had been extended for two years by the railway commissioners, finally expired, the former in 1851, and the latter in 1855: that, in 1848, the deponent was served with a writ for a call of 10s. per share, which had been made upon the shareholders of the company in February, 1848, for meeting the expenses incurred and then due and owing from the company, the amount of which call was remitted by his solicitor to Messrs. Edwards & Radcliffe, the solicitors of the company, in November, 1848: that, in June, 1850, deponent received an application from Messrs. Atkinson & Pilgrim, solicitors, for a second call of 108. per share on the twenty shares so allotted to him in the said company, and, to avoid the threatened legal proceedings for the recovery thereof, he paid such call, which Messrs. Atkinson & Pilgrim stated they had every reason to believe would be the last: that deponent never attended any meeting of the said company, or otherwise interfered in any way in its affairs, and, after payment of such lastmentioned call, he did not expect to hear more of the said company, and did not in fact do so until February last, when the notice thereafter mentioned was served upon him: that he was totally ignorant of all proceedings of the company, save that nothing was being done towards the carrying out of the scheme, and was ignorant of the way in which the capital and shares were being dealt with, and he paid the said calls in such ignorance; but that he had lately been informed, and believed, that, in the year 1853, notwithstanding the position of the company and the insolvent condition of its affairs, and, as deponent believed, without the knowledge, assent, and concurrence of the body of persons who had subscribed bonâ fide to the original undertaking, a bill was introduced into parliament seeking to revive the compulsory powers contained in the act of 1846 for purchasing lands, and to extend the time limited for the completion of the line authorized by such act; and that, in the year 1854, there was also introduced a bill seeking, in addition to such last-mentioned objects, powers to abandon part of the old line, and to make a new line and certain branch lines of railway; but that, owing to the strong opposition of shareholders and others, the first bill, after passing the House of Commons, was thrown out in the Lords, and the second, after being introduced, was withdrawn: that such applications to parliament were conducted, as deponent believed, by the present plaintiffs, the solicitors of the company, who were in fact also, as he was informed and believed, the chief promoters of the original undertaking or project, and were shareholders in the company, and they and the secretary and engineers really were the acting persons in the affairs of the company, and were the persons by whom and for whose benefit the said applications to parliament were made: that deponent was no party to those proceedings, and never sanctioned or approved thereof, or indeed heard thereof

[*400

[*401

[*402

[*403

Lush, contrà.-There is no pretence for enlarging the *rule: the creditor has under the statute an absolute right to execution. The language of s. 36 is imperative,-* If any execution, either at law or in equity, shall have been issued against the property or effects of the *company, and if there cannot be found sufficient whereon to levy such execution, then such execution may be issued against any of the shareholders, to the extent of their shares respectively in the capital of the company not then. until lately, nor, he believed, did the body of bonâ fide subscribers to the original undertaking know of such proceedings or sanction them; and deponent was informed and verily believed that the plaintiffs' bill of costs, on which the judgment thereinafter mentioned was founded, was incurred in the prosecution of those proceedings, which, as he had before stated, as he was informed and verily believed, were against the wishes of the general body of shareholders, and in opposing proceedings against an individual shareholder, and no part thereof was for business done relative to the concerns of the company: that the plaintiffs, in December, 1854, then being the solicitors of and the persons managing the affairs of the company, recovered judgment against the company for upwards of 40001. alleged to be due to them from the company for such matters as aforesaid, and, as deponent was informed and believed, judgment was afterwards signed by default, there being then no board of directors or acting directors independent of the plaintiffs, or any one really to represent or protect the company or the shareholders therein: that, at the time the plaintiffs issued the said writ and signed the said judgment, they were in fact and to all intents and purposes the company, and they and their friends alone represented or knew anything of the affairs of the said company: that deponent had been informed, and believed, that there was very great doubt whether at the time of the commencement of the said action there was any duly appointed secretary or other officer of the company on whom process could properly be served: that, although, as deponent believed, it was alleged that the plaintiffs caused their bill of costs to be examined by one of the masters of the court of Exchequer, yet that such examination or taxation was not attended by any person on behalf of the company or the shareholders therein, and that the taxing masters of the court of Chancery were the proper authorities to tax the said bills: that the plaintiffs subsequently gave notice of their intention to proceed upon their judgment against certain shareholders of the company, but such shareholders, who, as he was informed and believed, were already in litigation in Chancery with regard to the affairs of the company and the favoured withdrawal of the shares allotted to certain of the directors, did, as he was informed and believed, resist the claim, and obtained an injunction from Vice-Chancellor Wood against the plaintiffs, to restrain proceedings, on various grounds, and, amongst others, that the judgment was obtained collusively; and that he was informed and believed that such proceedings in Chancery had been settled on terms most favourable to the shareholders the plaintiffs therein: that the plaintiffs were now making another attempt to render the judgment so recovered by them as aforesaid available against the deponent and other shareholders of the company, and on the 18th of February last, he was served with a notice of an intended application for a rule to show cause why a scire facias should not be issued against him as a shareholder of the company upon the judgment or so much thereof as the amount unpaid on the shares held by him in the said company extended to, and a rule nisi was accordingly moved for and obtained on the 21st of April last pursuant to such notice, which was served on the deponent on the 23d of April last: that the deponent was advised, that, in order to his protection and effectual defence, it might be necessary to file a bill or take other proceedings to set aside the judgment so as he was advised and believed collusively obtained by the plaintiffs as aforesaid, and that it might also be advisable for him to apply to have the plaintiffs' said bill taxed, without prejudice to his liability thereto, and that, at all events, the question of his liability or non-liability thereto under the circumstances before stated, and the course to be taken for his effectual defence, was one of considerable difficulty, involving in its determination much more inquiry, investigation, and attention than with a due regard to the deponent's interests could be given to it within the limited time allowed, if the rule was to be argued during the present term; and that, if further time was allowed to deponent to investigate the facts of the case, which were for the most part in the knowledge of the plaintiffs and those acting with them, and of which there was great difficulty in obtaining accurate information and evidence, he believed such facts would show that he had a defence to the plaintiffs' demand against him, on the merits: and that deponent had ample means to meet the plaintiffs' demands, if they should ultimately recover against him; and that the application (to enlarge the rule) was made bonâ fide, and not for the purpose of delay, save to enable him to obtain information and advice, as before stated.

paid up: provided always, that no such execution shall issue against any shareholder except upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted, made upon motion in open court, after sufficient notice in writing to the persons sought to be charged; and upon such motion such court may order execution to issue accordingly." The court is asked to stay the plaintiffs' proceedings, in order to give the shareholder time to make an application to the Court of Chancery. What power has the court to grant any such indulgence? [WILLES, J.-The Court of Queen's Bench have granted this in a case not falling within the principle of Philipson v. The Earl of Egremont, 6 Q. B. 587 (E. C. L. R. vol. 51).] All the cases were reviewed in this court in Morisse v. Harding, 1 C. B. N. S. 67, where it was expressly held that the execution against a shareholder under the Joint Stock Bank Act, 7 & 8 Vict. c. 113, ss. 10, 13, was matter of right, the conditions imposed by the statute having been complied with. [WILLES, J.-That proceeded upon the assumption that *404] the judgment was a valid judgment. COCKBURN, *C. J.—Where it is suggested that a judgment has been improperly obtained against the company, with a view to fix the shareholders, the court ought not to be called upon to act ministerially, without allowing time for inquiry.] The judgment was signed in December, 1854: the shareholder, therefore, has had abundant time for impeaching it. [COCKBURN, C. J.-He would have no interest in impeaching it until the plaintiffs sought to enforce it against him.] Notice of this application was served upon the party on the 18th of February last; and this rule. was not moved until the 21st of April. [CRESSWELL, J.-Before he could be heard to impeach the judgment, he would have to come and say that he was a shareholder. He now comes to show grounds for disputing that fact.] If this application be successful, every shareholder will come and ask for time, upon an insinuation that the judgment against the company has been fraudulently and collusively obtained. It is to be borne in mind that this rule does not ask for execution, but merely for a scire facias: and, if the shareholder has any answer, he may plead it.

Milward.-The facts here intended to be relied on could not be pleaded to the scire facias. [WILLES, J.-Philipson v. Lord Egremont, 6 Q. B. 587, and Bosanquet v. Graham, 6 Q. B. 601, n., show that it would be a good plea to the scire facias, to set forth facts showing the judgment obtained against the company to be void. And that doctrine is upheld by the House of Lords in Shedden v. Patrick, 1 Macqueen's H. L. C. 535.] In Philipson v. Lord Egremont, the judgment was bad as against the company itself. Where the obtaining of the judgment is a fraud upon the court, it may be pleaded: but that which is suggested here, viz. that there has been a fraud as against the shareholders only, is not pleadable.