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calls are not paid on the day appointed, interest on the amount of the call is payable to the company. (Id., s. 23, post, App., 90). The company may agree to pay interest to a shareholder who pays money in advance of calls. (Id., s. 24, post, App., 90). If a shareholder fails to pay a call on the day appointed, the company may sue him for the amount, with interest, in any court of law or equity. post, App., 90).
(Id., s. 25,
In any action or suit to be brought by the company against any shareholder, to recover any money due for any call, it shall not be necessary to set forth the special matter, but it shall be sufficient for the company to declare (a) that the defendant is the holder of one share or more in the company, (stating the number of shares), and is indebted to the company in the sum of money to which the calls in arrear shall amount, in respect of one call or more upon one share or more, (stating the number and amount of each of such calls), whereby an action hath accrued to the company by virtue of that and the special act (b). (Id., s. 26, post, App., 90).
On the trial or hearing of such action or suit, it shall be sufficient to prove that the defendant, at the time of making such call, was holder of one share or more in the undertaking, and that such call was in fact made, and such notice thereof given as is directed by that or the special act; and it shall not be necessary to prove the appointment of the directors who made such call, nor any other matter whatsoever and thereupon the company shall be entitled to recover what shall be due upon such call, with interest
(a) For a form of the declaration, calls by actions of debt or 'on the see post, Appendix.
(6) In some of the earlier railway statutes, a power was given to recover
case. See Huddersfield Canal Co. v. Buckley, 7 T. R. 36; Miles v. Bough, 3 Q. B. 845.
thereon, unless it shall appear either that any such call exceeds the prescribed amount, or that due notice of such call was not given, or that the prescribed interval between two successive calls had not elapsed, or that calls amounting to more than the sum prescribed for the total amount of calls in one year had been made within that period (c). (Id., s. 27, post, App., 91).
The production of the Register of Shareholders is primâ facie evidence of the defendant being a shareholder (d). (Id., s. 28, post, App., 91).
It is now proposed to treat of the evidence which is necessary to support an action for calls. Proof must be given that a notice of the call was given strictly in accordance with the directions contained in the statute. Thus, where an act provided, that, when any notice was to be given by the trustees, such notice should be in writing or in print, signed by three or more of the trustees, or their clerk or clerks for the time being by their order, it was decided, that a notice signed with the names of the clerks to the trustees, but signed in fact not by such clerks, but by a clerk employed by them, was insufficient; although it seems that a signature by one of the two joint clerks to the
(c) As to what pleas will be allowed to be pleaded together in an action brought to recover calls, see The South-eastern Railway Co. v. Hebblewhite, 2 Railway Cases, 247; The South-eastern Railway Co. v. Cook, Id. 250; London and Brighton Railway Co. v. Wilson, 1 Railway Cases, 530; 6 Bing. N. C. 135: The Thames Haven Railway Co. v. Mount, 3 Railway Cases, 441.
(d) As to what is a proper mode of keeping such a register, see The London Grand Junction Railway Co. v.
Freeman, 2 Man. & G. 606; S. C., 2
trustees, in the name of the two, would have been sufficient (e). In the same case it was also decided, that an order by the trustees, requiring the parties to pay the amount of the call at a bankers', "to the account of the treasurer to the trustees," was a proper mode of requiring the call to be paid. It is no objection that the resolution of the directors whereby the call is ordered, specified no place for the payment, provided the notice which is given in pursuance of the resolution be explicit upon this point (ƒ).
In another case it appeared, that, by a clause in the railway act, the directors were empowered from time to time, to make such calls as they from time to time should find necessary; and twenty-one days' notice, at the least, should be given of every such call, by advertisement in certain newspapers; and all shareholders were required to pay such calls "to such person, at such time, at such place, and in such manner as the directors of the said company shall from time to time direct or appoint, for the use of the said undertaking." Upon the trial of an action brought to recover calls from the defendant as a proprietor of shares, it appeared that the directors had passed resolutions requiring the payment of the calls, but none of the resolutions specified the place where, or the person to whom, the payment was to be made; but the notices, signed by the clerk and secretary, "by order of the directors," and inserted in the newspapers, as required by the act, stated, that the directors having resolved to make a call for £—— per share, the proprietors were required to pay the said call on a day mentioned to certain bankers. The Court of Exchequer held, that the notice was sufficient, and that the directors might fix the time, place, and manner of payment after
(e) Miles v. Bough, 3 Q. B. 845. (f) The Great North of England
Railway Co. v. Biddulph, 2 Railway
the original resolution had been made, and by a distinct act (g).
In a somewhat similar case the Court of Common Pleas was clearly of opinion that it was wholly unnecessary that the original resolution should state the time or place of payment (h). And it has been said, that, if a statute contains no express direction that a notice of calls being made shall be given, still a party cannot be sued for non-payment of a call till he has received notice thereof (i). The rule is, that when an action is given only if the party shall neglect or refuse to pay, reason and justice require that the party should have notice (k). The result of the cases decided previous to the 8 Vict. c. 16, seems to be, that, if the statute specifies the mode in which notice of a call is to be given, that mode must be strictly observed; but if no specific directions appear in the statute, then a notice in writing, addressed to the shareholder, properly signed, should be delivered to him.
The foregoing cases will furnish the principles upon which the statute 8 Vict. c. 16, will be construed with respect to notices of calls; and the minute provisions made by that statute, as to advertisements, and the mode of giving and serving notices, will prevent many inconveniences which would otherwise have arisen (7).
(g) The Sheffield, Ashton, and Manchester Railway Company v. Woodcock, 7 M. & W. 574; 2 Railway Cases, 522.
(h) London and Brighton Railway Company v. Fairclough, 2 Man. & G. 674; 2 Railway Cases, 544.
(i) Painter v. Liverpool Oil Gas Company, 3 Ad. & E. 433; Brook v. Jenney, 2 Q. B. 271; Edinburgh and Leith Railway Company v. Hebblewhite, 6 Mee. & W. 716.
(k) Miles v. Bough, 3 Q. B. 845. (7) See, as to the service of notices
on shareholders, 8 Vict. c. 16, s. 136; on joint proprietors of shares, Id., s. 137; as to notices by advertisements, Id., s. 138; and as to the authentication of notices, Id., s. 139; post, App. 109, 110. The following case has been decided:-An act for making a railway from Dublin to Drogheda enacted, that service of a writ upon a secretary of the company, or at the company's office, or by delivering it to some inmate at such office, or at the abode of the secretary, or, in case the same respect
There are some cases where a defendant cannot take the objection that a notice requiring him to pay calls has not been proved. Thus, if a party expressly promise to pay a demand for calls, the jury may infer that a proper legal notice was given, unless the plaintiffs affirmatively shew, as part of their case, that an informal notice was in fact sent to the defendant. When the Court does not know the facts, an express promise may enable them to infer that what is right has been done; but when the facts are known, and they are insufficient, the promise does not make them sufficient (m).
And where the declaration averred, "that the defendant had due notice of the calls, to wit, by notice in writing, signed by the then clerks of the trustees, and then left at the then usual place of abode of defendant," it was contended, that, as notice was averred, and not excused in the declaration, a promise to pay did not entitle the plaintiff to succeed on the action; but the Court overruled that objection (n), and after verdict it was held to be no objection in arrest of judgment, that the declaration did not expressly state that the calls were authorised to be made by the trustees (o).
It will be necessary to prove that the calls were made at the periods authorised by the statute; and it seems that a director, who was a party to the making of an illegal call, is not estopped from setting up the illegality of the call as a defence to an action for calls brought against him. In
ively should not be found or known, then service on any other agent of the company, or on any one director of the said company, should be deemed good service. The company had an office in Dublin; and it was held, that a writ of summons against the company ought to be served in Ireland, and that service of an English writ of summons upon a director in
London was void; and the Court set
(0) Miles v. Bough, 3 Q. B. 845,