« EelmineJätka »
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 sect. 27, it is necessary, in an action for calls, to prove that the
[*1001 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, 121,7 (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.” •
* Crowder and Phipson, contrà.— The resolution can mean *1003]
nothing more than that a call is to be made. Otherwise a bona 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 *1004]
in the primary sense, in which the Company are, *by sect. 22,
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 she 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.
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 defend
[*1006 ant was a holder of shares o 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
pany by this judgment compel the assignor to pay the call to them, such right of the Company against the assignor does not affect the right of the assignor against the assignee under the contract of transfer.(a)
Rule discharged, without costs (a) See M'Ewen v. Woods, 11 Q. B. 13 (E. C. L. R. vol. 63).
The remaining cases of Trinity Vacation will be found in Vol. XIV.
I N D E X
THE PRINCIPAL MATTERS.
558 Of ship, 292. INSURANCE, IV, 1.
2. Under Game Act, 558. Ante, 1. ACCOUNTS.
3 Question for judge or jury, 558. Ante, 1. Of union or district.
IT. Form, 1. Interested auditor, 327. Poor, X. 1.
1. Against justices, 393. JUSTICE, X. 2. Mandamus to account to auditor, 405.
2. For disturbance of incorporeal hereditaPOOR, III.
ment, 426. FISHERY, I. 1. ACQUIESCENCE.
3. Against agent contracting without autho.
rity, 744. Agent, I. Inferences from, 269, Poor, IV. 1.
Covenant not to suo for a limited time, 886. Discharge of jury not equivalent to, 716.
Bills, I. 1. JURY, IV. 1.
Joint retainers of attorney, 308. ATTORNEY, ACTION.
IV. Notice when required. 1. Bonâ fide belief of acting under statute.
ADJOURNMENT. To an action of trespass for assault and 1. Nature and effects of, 687. Poor, XVII. false imprisonment, defendants pleaded Not guilty (by statute), relying on the Game Act, II. Power and propriety of, 881. Poor, XXXV. 1 & 2 W. 4, c. 32, 8. 31. The Judge left it to the jury to say whether or not the defendants
ADMINISTRATOR. believed they were acting in pursuance of the EXECUTORS AND ADMINISTRATORS. statute, and, if so, whether they had reasonable grounds for so believing. The jury
ADMISSION. found that the defendants thought they were
I. Of officers. acting in pursuance of the statute.
The Judge then directed a nonsuit, for want of a
Mandamus to admit, 1. ATTORNEY, IL. month's notice of action, according to sect. II. In pleading. PLEADING.
III. In evidence, 815. COMMITTEE, I, 1. Held, that the question of reasonable or not reasonable belief in this case was a ques
ADMITTANCE. tion simply whether there was such bona fides as entitled the defendants to notice of action, To estates. and that the case was properly left to the 1. To copyhold, 808. COPYHOLD, I. jury. And that the defendants were entitled 2. To customary tenement, 670. CustoMARY to notice, whether the trespass was actually
TENEMENT. VOL. XIII.—75