to let it stand for the *unobjectionable parts. This suggestion [*998 Rule absolute for a certiorari. (a) (a) Reported by H. Davison, Esq. The QUEEN v. The LONDONDERRY and COLERAINE Railway Company. Under the Companies' Clauses act, 8 & 9 Vict. c. 16, s. 22, a call of money on shares is made, in point of time, when the resolution to call is passed, not when notice of the call is given to the shareholder. Therefore, by sect. 16, a shareholder cannot legally transfer his share after the passing of such resolution, without paying the call, though he has executed a deed of transfer before notice of the call was served upon him. A RULE nisi was obtained by Phipson, in last term, for a mandamus calling upon the secretary of the Londonderry & Coleraine Railway Company (established under stat. 8 & 9 Vict. c. clxxxvii., local and personal, public) to enter a memorial in their books of the transfer by deed of two hundred half shares in the Company's undertaking, and to endorse such entry on the deed. It appeared on affidavit that Mr. Tooke, the owner of the half shares, transferred them by deed (executed January 29th, 1849) to a purchaser, and caused the deed to be tendered for registration at the Company's office on January 30th; but the Company's clerk refused to retain or register the deed, on the ground that a call had been made on the preceding day, and had appeared in The Morning Herald of that day, and must be paid before the transfer could be registered. No other information as to the making of a call was given to Mr. Tooke till the ensuing 4th of February, when he received, by post, written notices of the call from the Company. The resolution to make a call, passed by the Directors on January 29th, 1849, was as follows. "Resolved. That a further call of 21. 10s. be made on the 127. 108., half shares of this Company, to be payable in two instalments of 11. 58. *each: the first on Friday, [*999 the 20th of July next; and the second on Saturday, the 20th October next." The announcement made in the newspapers on the following day was in these words. "Londonderry and Coleraine Railway Company. "Eleventh call, being 27. 108. upon each 127. 10s. half share, making, with the amount already paid, 57. called upon each half share. "Notice is hereby given that, pursuant to a resolution of the Board of Directors passed this day, shareholders in this Company are required to pay a call of 21. 108. upon each 127. 108. half share, by two instalments of 17. 58. each: the first of such instalments to be paid on Friday the 20th day of July next, and the second on Saturday the 20th day of October next, to either of the under-mentioned bankers." (Then followed names of bankers, and statements as to interest to be required or allowed.) "By order of the Court of Directors, FREDERICK H. HEMMING, Secretary." The notices sent by post were in this form. "Londonderry and Coleraine Railway. Eleventh call, A. "Eleventh call, being 21. 108. upon each 12l. 108. half share, making, with the amount already paid, 57. upon each half share." " Offices, 5 Church Passage, Guildhall, London, January 29th, 1849. "The Board of Directors having, by a resolution passed this day, made a further call of 21. 108. upon each 127. 108. half share, payable by two instalments of 17. 58. each, the first of such instalments to be paid on Friday the 20th day of July next, and the second on Saturday the 20th day of October next, you are hereby required to pay, on or before the said 20th day of July, to either of the under-mentioned bankers" (names of bankers were then stated), "the first instalment of 17. 58. per half share, amounting to 2507. on 2001. half shares standing in your name in the books of the Company." (Statements were then added as to interest to be charged and allowed.) "The shareholders are however hereby apprised that the payment of this call will be deferred if it be not required for the existing liabilities of the Company. No. 25. To Rev. T. H. TOOKE," &c. By order of the Board of Directors, There was a notice of call for the other 17. 58. in the same form, mutatis mutandis. *Down to the time of the present motion Mr. Tooke had not *1000] paid the call; and the Company declined to register the transfer. No other call was due from Mr. Tooke: and the only dispute was as to the construction of stat. 8 & 9 Vict. c. 16, s. 16. Sir J. Jervis, Attorney-General, and Joseph Brown showed cause in the last term (June 12th). (a) The question is whether a call is made, within the meaning of stat. 8 & 9 Vict. c. 16, s. 16, when the resolution to make a call is passed, or not until notice of the call is given to the shareholder. Sect. 15 enacts that every deed of transfer shall be delivered to and kept by the secretary, and registered by him; and that, until such transfer has been so delivered to the secretary, the vendor shall continue liable for calls. And, by sect. 16, "No shareholder shall be entitled to transfer any share, after any call shall have been, made in respect thereof, until he shall have paid such call."(6) The (a) Before Lord DENMAN, C. J., PATTESON, COLERIDGE, and ERLE, JS. (b) The following clauses were also relied upon in the argument and judgment. Sect. 21 enacts that, "The several persons who have subscribed any money towards the undertaking, or their legal representatives, respectively, shall pay the sums respectively so subscribed, or such portions thereof as shall from time to time be called for by the company, at such times and places as shall be appointed by the company." Sect. 22. "It shall be lawful for the company from time to time to make such calls of money upon the respective shareholders, in respect of the amount of capital respectively subscribed or owing by them, as they shall think fit, provided that twenty-one days' notice at the least be given of each call, and that no call exceed the prescribed amount, if any, and that successive calls be not made at less than the prescribed interval, if any;" "and every shareholder shall be liable to pay the amount of the calls so made, in respect of the shares held by him, to the persons and at the times and places from time to time appointed by the company." Sect. 27. "On the trial or hearing of such action or suit" (by the company against a sharenolder for money due on a call) "it shall be sufficient to prove that the defendant at the time of making such call was a 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 this 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 thereon, unless it shall appear either that any such call exceeds the word "call" has more than one meaning in the act; but in this last *section it must signify the resolution to make a call. For, by [*1001 sect. 27, it is necessary, in an action for calls, to prove that the defendant, "at the time of making such call," was a shareholder, that such call was made, and that notice of it was given. The "making" there is clearly a thing prior to the notice. If sect. 16 be so construed that a transfer may take place between the resolution and the notice, the Company must lose the call; for the call of which notice is given must be that which is ordered by the resolution; but the party who was shareholder at the time of the resolution will have ceased to be so at the time of the notice. The resolution is to make a call at the then present time. By sect. 22, twenty-one days' notice of the call is to be given; a regulation which clearly treats the call as a thing done. In popular understanding, a call is made when the resolution to make one appears in the newspapers. It is true that, by sect. 21, the shareholder is liable to pay only at the time and place appointed by the Company; and these are known only from the notice. But the call may have been made, though all things necessary to sustain an action may not be [*1002 done till a subsequent time. The point now before the Court was discussed incidentally in Sheffield & Manchester Railway Company v. Woodcock, 7 M. & W. 574, 588;† where PARKE, B., said: "A question indeed may arise in some cases, where there has been a change of proprietorship by transfer, what is the time of making a call, which fixes the liability of the then proprietor of a share" (under the local act then in question), and which prevents the free transfer;" "whether it is to date from the original resolution, from the time of fixing the mode of payment, of giving notice in the newspapers, or even from the period when the calls become due." The same question was several times adverted to in Shaw v. Rowley, 16 M. & W. 810.† In Newry & Enniskillen Railway Company v. Edmunds, 2 Exch. 118, 120, 121,† (a case under stat. 8 & 9 Vict. c. 16), PARKE, B., said during the argument: "Does the word call' mean anything more than a call for money; and is not a call for money an application for money?" And, in his judgment, he said: "It is clear that the word call' is used in the act in two different senses. In one part it means, the applications to the shareholders to pay; and in another, the amount to be paid." He does, indeed, express an opinion that the resolution to make a call "is nothing more than a determination, that thereafter a call' shall be made:" but this must depend upon the language used in each case. Here the resolution is not prospective in its terms, but intimates a call actually made at the time. (Brown also cited The Aylesbury Railway Company v. Mount, 4 Man. & G. 651 (E. C. L. R. vol. 43).) 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." *1003] *Crowder and Phipson, contrà.-The resolution can mean nothing more than that a call is to be made. Otherwise a bonâ fide transfer by a proprietor might be avoided by a proceeding to which he was not party and of which he had no knowledge, a resolution come to in the directors' room and not yet communicated. Nor is there any limited time within which the directors are bound to make the resolution known. [ERLE, J.-The call is virtually the act of the whole Company. COLERIDGE, J.-You suggest a hardship; but on your construction the company might lose a call by the transfer.] The provision of sect. 22, "that twenty-one days' notice at the least be given of each call," is strongly in favour of the present applicant: the import being, clearly, that the party shall have twenty-one days from the time of the notice; not from any other time. [Lord DENMAN, C. J.—That is quite plain. COLERIDGE, J.-The notice is to be twenty-one days before the day of payment.] Then the notice of call, given personally to the individual, is the call. [COLERIDGE, J.- Notice" of a thing implies that it exists. PATTESON, J.-The notice in fact given is, that a call has been made.] It is unreasonable to say, "take notice that you have been called upon to pay." And the mode in which the Company frame their resolutions and notices cannot change the operation of the statute. The call ought to be a final and binding act. A resolution, before notice, may be altered. There is some ambiguity in the use of the word "call" in sect. 27; but, to ascertain the meaning, it must be read in conjunction with sect. 22. It is clear, on a view of both, that the words, in sect. 27, "that such call was in fact made," do not import the making of a call in the primary sense, in which the Company are, *by sect. 22, *1004] empowered to make such calls of money upon the respective shareholders," &c. As to the authorities. In Sheffield & Manchester Railway Company v. Woodcock, 7 M. & W. 574, 588,† the point now before the Court was not decided: but PARKE, B., in the judgment which has been cited, said: "It may be that the resolution of the directors is only an inchoate act, and that the call is not complete until the mode of payment is appointed and notice thereof given." The same learned Judge said, in Newry & Enniskillen Railway Company v. Edmunds, 2 Exch. 118: The resolution is nothing more than a determination, that thereafter a call' shall be made, that is, that an application shall be made to each shareholder for a proportion of his share." ROLFE, B., referred to this case in Shaw v. Rowley, 16 M. & W. 813,† and said (in answer to counsel who contended that "the resolution," "to make the call, is the call"): "We decided the other way in Newry & Enniskillen Railway Company v. Edmunds." And PARKE, B., asked :(a) “ Can the call be taken to be made till notice of it is given to the shareholders?" Cur. adv. vult. PATTESON, J., in this vacation (July 5th), delivered the judgment of the Court. (a) 16 M. & W. 812+ The facts raising the question, when a call is made within the meaning of stat. 8 & 9 Vict. c. 16, s. 16, were, that the directors passed the resolution by which the money was called for; then the transfer was executed, and offered to be delivered to the secretary, before either party had notice of the resolution: and the *secretary refused to receive the transfer unless the assignor would pay the money so [*1005 called for, alleging that a call had been made; which allegation the assignor denied. On considering the statute, and the cases bearing on the subject, it appears that a call may mean either the resolution formally come to, by those who have the power to determine, that those who are bound to contribute, i. e. the shareholders, shall pay a certain instalment; or it may be that resolution, together with notice to the persons called on of such resolution having been come to; or the combination of facts making the parties called on liable to an action for non-payment of the money called for. The last meaning not being applicable, the question lies between the other constructions; and we have come to the conclusion that the first is correct; and that a call is made, within the meaning of this section, when the resolution above described has been come to. The section which restrains the power of transfer (the 16th), using the words "after any call shall have been made," must be construed with reference to the 22d section, which empowers the Company to make calls: and, looking at that, it seems clear that the making of the call and the "notice" of it, which must mean of its having been made, are two distinct things, and that the call must be made before the notice of its having been made can be given. Now between the resolution and the notice no act intervenes ; nor need anything precede the making of the resolution: if so, it follows necessarily that the resolution is the making of the call. [*1006 The language of the 27th section leads to the same conclusion. Under that, the Company, in an action for *calls, must prove three things, and they need prove no more. First: that the defendant was a holder of shares "at the time of making such call." Secondly: that such call was made. Thirdly: that such notice thereof (i. e. of the making the call) was given as that or the special act required. If the notice was part of the act of making the call, it was unnecessary to add this third requisition, for it was included in the second. If the Company could not enforce payment of a call from a party who was not a member at the time when the resolution making the call was passed, convenience is on the side of this construction; for, unless it be true, the Company by such a transfer as the present must either lose the call in respect of the shares transferred, or must make a partial separate call in respect of those shares: for which we find no provision. This construction does not appear to us to contravene the decisions approaching the point, pronounced in other cases, but to be in accordance with them. It may not be superfluous to add that, although the Com |
