Interest on Unpaid Calls-Actions for Calls. 25 Railway Co. v. Woodcock, 7_M. & W. 574; 2 R. C. 522; London and 8 & 9 VICT. C. 16. unpaid. XXIII. If, before or on the day appointed for payment, Interest to be any shareholder do not pay the amount of any call to bid on calls which he is liable, then such shareholder shall be liable to pay interest for the same at the rate allowed by law from the day appointed for the payment thereof to the time of the actual payment. interest on pay scriptions before XXIV. It shall be lawful for the company, if they think Power to allow fit, to receive from any of the shareholders willing to ad- ment of subvance the same all or any part of the moneys due upon call. their respective shares beyond the sums actually called for; and upon the principal moneys so paid in advance, or so much thereof as from time to time shall exceed the amount of the calls then made upon the shares in respect of which such advance shall be made, the company may pay interest at such rate, not exceeding the legal rate of interest for the time being, as the shareholder paying such sum in advance and the company shall agree upon (a.) &c., will pass (a) A specific bequest of shares and "all right, title, and interest" Bequest of shares therein will pass to the legatee any advances in respect of future and all right, calls, which the testator may have made during his lifetime: (Tan- advances. ner v. Tunner, 11 Bea. 69.) calls by action. XXV. If at the time appointed by the company for the Enforcement of payment of any call any shareholder fail to pay the amount of such call, it shall be lawful for the company to sue (a) such shareholder for the amount thereof, in any court of law or equity having competent jurisdiction, and to recover the same, with lawful interest, from the day on which such call was payable. (a) The plea of never indebted puts in issue all the material aver- Defences to acments of the declaration, and, accordingly, pleas traversing that the tions for calls. defendant was holder of the shares, that the call was made, and the like, are unnecessary. The following pleas have been disallowed Pleas disallowed. either for this reason or because they were held bad in themselves:- Calls made after That a call is made for the purpose of carrying out a railway after deviation from a deviation has been made; that due notice of calls had not been Insufficient given; that the notice did not specify time and place appointed for notice. payment; that fewer shares had been allotted than the act required: Full number of London and Brighton Railway Co. v. Wilson, 6 Bing. N. C. 135; lotted. plan. shares not al Call not made by quorum of directors. 8 & 9 VICT. C. 16. 1 R. C. 530.) That a competent number of directors were not present when calls were made: (South-Eastern Railway Co. v. Hebblewhite, 12 A. & E. 497; 2 R. C. 247.) That the appointment of the directors making the call had been invalid: (Thames Haven Dock Co. Appointment of v. Hall, 3 R. C. 441.) That before the call was payable, the defendant transferred his shares to another, whereby he ceased to be a fendant's shares proprietor of the shares: (Aylesbury Railway Co. v. Mount, 7 M. & G. before call made. 898; and see Waterford and Dublin Railway Co. v. Logan, 19 L. J. (Q. B.) 259; 14 Q. B. 672.) directors invalid. Transfer of de Proof that de shareholder. Calls on scrip. Under the plea of the general issue, the defendant may show that he fendant is not a is not a shareholder de jure, notwithstanding the prima facie evidence of the register: (Shropshire Union Railway Co. v. Anderson, 3 Exch. 401.) As to liability for calls of holders of scrip certificates, and defences arising out of the informality of the transfer of shares, see notes to s. 16, ante, p. 18. See notes to s. 28, post, pp. 28-30, for defences arising upon the irregularities or omissions of the register. Informal transfers. Incorrect" registration. Pleas that whole capital not sub scribed. For pleas that the whole of the capital had not been subscribed as required, and their effect, see Norwich and Lowestoft Navigation Co. v. Theobald, 1 M. & M. 151; Waterford and Dublin Railway Co. v. Dalbiac, 6 Exch. 443; 20 L. J. (Exch.) 227; 6 R. C. 753.* Since by the 29th section the remedy for non-payment of calls is Action notwith- not alternative but cumulative with that of action, it is no defence standing forto such action to plead that before action brought the shares had feiture. been forfeited and sold: (Great Northern Railway Co. v. Kennedy, 4 Exch. 417; 6 R. C. 5; 7 D. & L. 197. See also Inglis v. Great Northern Railway Co., 1 MQ. 112; 16 Jur. 895, in Dom. Proc. Infancy. Repudiation at majority. Bankruptcy. Illegality of transaction no bar to action. Plea alleging fraud. Departure from purposes of company. It is no answer to an action for calls to plead that the defendant sued as the registered holder of shares was an infant when he became so registered, and that he has not since his majority been registered anew, or ratified the original registration; for his permitting his name to remain so registered is such a ratification: (Cork and Bandon Railway Co. v. Casenore, 10 Q. B. 935; see also Leeds and Thirsk Railway Co. v. Fearnley, 4 Exch. 26; 18 L. J. (Exch.) 330; London and North-Western Railway Co. v. M‘Michael, 20 L. J. (Exch.) 97.) And see Capper's Case, L. R. 3 Ch. App. 458. But during infancy or at majority, the contract between the infant and the company is voidable by him, and a plea alleging repudiation at majority, and notice of the same, is a good one: (Newry and Enniskillen Railway Co. v. Coombe, 3 Exch. 565; 18 L. J. (Exch.) 325.) For a plea setting up the bankruptcy of the defendant, see South Staffordshire Railway Co. v. Burnside, 5 Exch. 129; 20 L. J. (Exch.) 120; 6 R. C. 611.) It would seem to be no defence to an action for calls that the transaction under which the shares became the property of the defendant was tainted with illegality, the action not being on the executory contract, but upon the statutable liability: (West Cornwall Railway Co. v. Mowatt, 19 L. J. (Q. B.) 478; 15 Q. B. 521.) For a plea alleging fraud, see Waterford and Dublin Railway Co. v. Logan, 19 L. J. (Q. B.) 259; 14 Q. B. 672 And for pleas setting up a departure from the scheme originally proposed, see Midland Great Western Railway Co. v. Gordon, 16 M. See s. 16 of the Lands Clauses Consolidation Act, 1845, post. Actions for Calls-Pleas and Declarations. 27 & W. 804; 5 R. C. 76; 16 L. J. (Exch.) 166; Cork and Youghal 8 & 9 VICT. c. 16. Railway Co. v. Paterson, 18 C. B. 414. shares of bank Where the assignees of a bankrupt had not accepted the shares Non-acceptance standing in his name, it was held that the claim for calls was not by assignees of barred by his certificate, inasmuch as it was not a debt payable in rupt. future under the 51st sec. of 6 Geo. IV. c. 16, nor a debt due on a contingency within the meaning of the 36th sec. of that act: (South Staffordshire Railway Co. v. Burnside, 5 Exch. 129; 20 L. J. (Exch.) 120; 6 R. C. 611.) It has been held that an action of debt by a railway company for Plea of Statute of calls is founded on statutory liability, and that therefore a plea that Limitations. the claim of the company is barred by the Statute of Limitation, the cause of action not having accrued within six years, is bad, the proper limitation to the action being twenty years: Cork and Bandon Railway Co. v. Goode, 13 C. B. 826; 15 Jur. 555; but it seems that an action for calls under a foreign or colonial statute is founded on a simple contract, and the period of limitation is six years: (Welland Railway Co. v. Blake, 6 H. & N. 410; 30 L. J. (Exch.) 161.) It is not necessary to add a count for interest in a declaration for Count for interdebt for calls (Southampton Dock Co. v. Richards, 1 M. & G. 448; est need not be 2 R. C. 215; London and Brighton Railway Co. v. Fairclough, 2 M. & G. 674; 2 R. C. 544; see also s. 27;) but care should be taken that the sum claimed at the end of the declaration be sufficient to cover the interest as well as the calls. added. An Irish railway company having offices at Westminster was Security for compelled to give security for costs in an action for calls, though it costs. had personal property in England, and most of its shareholders resided there: (Kilkenny and Great Southern and Western Railway Co. v. Fielden, 6 Exch. 81; 6 R. C. 785.) action for calls. XXVI. In any action or suit to be brought by the Declaration in 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 that the defendant is the holder of one share or more in the company (a), (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 such calls,) whereby an action hath accrued to the company by virtue of this and the special act. defendant is a (a) In actions for calls the allegation that the defendant is the Allegation that holder of shares, means that he was so at the time the call was shareholder. made: (Belfast and County Down Railway Co. v. Strange, 1 Exch. 739; 5 R. Č. 548.) The executors of a shareholder are not liable in an action for Liability of execalls under the statutory form when the call is made in the lifetime cutors. of the testator: (Birkenhead and Cheshire Junction Railway Co. v. Cotesworth, 6 R. C. 211;) and the count must be framed according to the fact. 8 & 9 VICT. c. 16. Matter to be proved in action for calls. Notice. Proof of Notice. Effect of clause declaring that appointment of directors not to be questioned in action for catls. Proof of proprie. torship. Production of register. Time of sealing register. For form of declaration, see Bullen and Leake's Precedents of Pleading, 2d ed. p. 119. XXVII. 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 a holder of one share or more in the undertaking, and that such call was in fact made, and such notice (a) thereof given as is directed by this or the special act; and it shall not be necessary to prove the appointment of the directors (b) 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 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. (a) Notice is necessary, though the special act may not require it; and the jury may infer that notice has been duly given, if the defendant has promised payment: (Miles v. Bough, 3 Q. B. 845; 3 R. C. 668.) As to the admissibility of evidence to prove notice, see Eastern Union Railway Co. v. Symonds, 5 Exch. 237; 6 R. C. 578. (b) A clause in a railway act declaring that the appointment of the directors could not be questioned in an action for calls, is sufficient to support a demurrer to a bill seeking to restrain by injunction such an action, the plaintiff alleging that the shares held by the directors were held by them as mere trustees for the company, taken for the sole purpose of passing the bill through the House of Lords, and that the meeting at which the call was made was therefore improperly_constituted: (Mangles v. Grand Collier Dock Co., 10 Sim. 519; 2 R. C. 359.) XXVIII. The production of the register (a) of shareholders shall be prima facie evidence of such defendant being a shareholder, and of the number and amount of his shares. (a) The register is admissible in evidence on production without proof that the seal was duly affixed at a meeting of the company under s. 9. (London and North-Western Railway Co. v. M'Michael, 5 Exch. 855.) When, however, it appeared that a call was made in October, the share register containing defendant's name having been made out in September, and it was proved that the seal was not affixed until November, it was held to be no evidence of defendant's proprietorship at the time of the call: (Cheltenham and Great Western Union Mode of keeping Register-Evidence of Ownership. 29 Railway Co. v. Price, 9 Car. & P. 55; see also Wolverhampton New 8 & 9. VICT. c. 16. Waterworks Co. v. Hawksford, 11 C. B. N. S. 456; 29 L. J. (C. P.) 121; 31 L. J. (C. P.) 184. It has been held in numerous cases, that the provisions of s. 9 Mode of keeping arising under special acts, are merely directory, and therefore that register. irregularities in respect of them will not prevent the register from being prima facie evidence under this section; thus it has been held in the case of the London Grand Junction Railway Co. v. Freemun, 2 M. & G. 606; 2 R. C. 468, that a register intended to be kept in pursuance of the provisions of the act, containing names of all persons supposed to be entitled to shares, though it in fact contained the names of persons not entitled to shares, and omitted the names of others who were; and although there were entries to which no seal had ever been attached; was a book kept in sufficient compliance with the act to render it admissible in evidence ; and see London and Grand Junction Railway Co. v. Graham, 2 R. C. 870; 1 Q. B. 271. amount of sub And such a register, though it does not contain the amounts of Omission of subscriptions paid on the respective shares is prima facie evidence scriptions; of the proprietorship of a shareholder entered on the register: (Birmingham, Bristol, and Thames Junction Railway Co. v. Locke, 1 Q. B. 256; 2 R. C. 871.) additions of So also though the names and additions of other shareholders of names and directed to be inserted in the register were omitted: (London shareholders; and Brighton Railway Co. v. Faircleugh, 2 M. & G. 674; 2. R. C. 544.) And, speaking generally, it is no objection to the admissibility of the register to prove a defendant's proprietorship, that omissions and irregularities are shown with respect to other proprietors: (Southampton Dock Co. v. Richards, 1 M. & G. 448; 2 R. C. 215: see also West Cornwall Railway Co. v Mowatt, 15 Q. B. 521; 19 L. J. (Q. B.) 478; and see notes to s. 9, ante, p. 8.) So also it was at one time thought doubtful whether the omis- of numbers specifying shares. sion in the register to number and specify the shares would be sufficient in itself to exclude its admission to prove the liability of a defendant: (Irish Peat Co. v. Phillips, 1 B. & S. 598 in error, 629; 30 L. J. (Q. B.) 114 in error, 363; and see also Wolverhampton New Waterworks Co. v. Hawksford, 7 C. B. N. S. 795; 29 L. J. (C. P.) 121; but in a very recent case (East Gloucestershire Railway Co. v. Bartholomer, L. R. 3 Exch. 15) it was decided that, although the register did not indicate the distinguishing number of the defendant's shares, as it was proved aliunde that they had been numbered, it had been properly admitted in evidence on the trial, by the learned judge (Blackburn, J.), who had expressed an opinion that the whole of the provisions of the 8th section are directions merely, and not essential. It may, however, well be, that if there be no other evidence than the register of the shareholders, it must contain within itself all the particulars necessary to charge the defendant with liability in the action: (per Kelly C. B.; ibid. p. 22.) Under certain circumstances, the evidence of the defendant's being Rebuttal of a shareholder afforded by the register will be rebutted; thus,ence of registr where the defendant had been allotted shares on the condition that they were to be forfeited if a certain deposit was not paid within a facie evi |