tion as directed by the act; it was held that a party sued for calls could not, under the act, set up, by way of defence, that the calls were made for purposes other than those warranted by the act, or that there had been a deviation from the original line, and that the money was called for in respect of such deviation, or that fewer shares had been allotted than the act required. (u) But, supposing the company itself to be a bubble, or its statutory powers to have been obtained by gross fraud and misrepresentation practised on the legislature, or supposing the party sued for calls to have been induced to become a shareholder by the misrepresentations and fraud of the directors, possibly that might afford a ground for relief in equity against the claims of the company for calls. (x)

383. IV. Of the liability to calls; (y) and 1st, of such liability generally. In order to render a party liable for calls, he must be shown to be one of those whose liability is contemplated by the act of parliament. Those persons are, in general, divisible into three classes: 1st, subscribers; 2ndly, persons who have acquired shares by the statutory mode of transfer; and 3rdly, parties who, without being legally constituted members, have yet by their conduct dispensed with the machinery which the

(u) London and Brighton Railway Company v. Wilson, Same v. Fairclough, 6 B. N. C. 135.

(1) See The Cromford and High Peak Railway Campany v. Lacey, 3 Y. & J. 80; the judgment of the Vice-Chancellor in Mangles v. The Grand Collier Dock Company, 2 Railw. Cas. 359; S. C. 10 Sim. 519; Thorp v. Hughes, 3 Myl. & Cr. 742. (y) As to who liable to calls under Companies Clauses Consolidation Act, (8 Vict. c. 16,) see act, ss. 21, 22, post, App.

legislature renders necessary to constitute a member, and who are consequently estopped from saying they are not members.

384. Subscribers, who meant by. (First) then, of the first class. To fix a party with liability on this score, it must, of course, be made out that he has subscribed within the meaning of the particular act. Now the term "subscriber" may be understood in two senses, either of persons who have actually contributed money, or of those who have simply stipulated and bound themselves to contribute. (=) The question in which sense it is to be understood in any given case must, of course, depend upon the provisions of the particular statute. Supposing that the term is obviously intended to be used in the latter of the above senses, it remains to be considered in what manner a party must bind himself so as to constitute himself a subscriber within the provisions of the particular act. When the act contemplates as the test of membership the subscription of a contract binding on the subscribers and their heirs, it would clearly be insufficient proof of a party being a member, to show simply that he had signed a contract, which, though professing to bind his heirs, was not under his seal. (a) But, because the original subscribers appear on the face of the act to have contracted by deed, (as, for instance, by a recital in the act to that effect,) this is no reason for holding that additional subscribers, who are evidently contemplated by the act, must bind

(2) Thames Tunnel Company v. Sheldon, 6 B. & C. 341. (a) See Cromford and High Peak Railway Company v. Lacey, 3 Y. & J. 80.

themselves in the same manner as the original subscribers. (b)

385. (2ndly.) To charge a party as legal transferee of shares, it must, of course, appear that the mode of transfer pointed out by the statute has been strictly pursued; where, therefore, the transfer is required to be by writing under the seal, &c. of the parties and duly stamped, no action for calls can be maintained against a party who claims under an instrument void by reason of its being executed with a blank for the name of the purchaser, (c) or one which is altered in a material part after execution by the vendor, (d) and then re-executed by him without being restamped. Supposing, however, the instrument itself to be free from objection, proof of the entry of a memorial thereof is not necessary to enable the company to recover; the provision on that head usually found in a railway act being intended only for the security of the company. (d)

386. (3rdly.) Although a party be neither an original subscriber, nor claim through one by virtue of a conveyance in the form prescribed by law, still he may be subject to pay calls when by his conduct he can fairly be taken to have dispensed with the formalities required by the legislature to constitute a

(b) See The Great North of England Railway Company v. Biddulph, 2 Railw. Cas. 410; S. C. 7 M. & W. 243.

(c) Hebblewhite v. M'Morine, 2 Railw. Cas. 51; S. C. 6 M. & W. 200; Sheffield, Ashton-under-Lyne and Manchester Railway Company v. Woodcock, 2 Railw. Cas. 522; S. C.7 M. & W. 574.

(a) London and Brighton Railway Company v. Fairclough, 2 Railw. Cas. 544; S. C. 2 M. & Gr. 674.

member. For instance, where a party can be shown to have held himself out to the world and acted as a proprietor, he cannot, it seems, in such case, be allowed to turn round on the company and say that he is not a member. (e) So likewise, where a party, by claiming to be registered, or by representations to the like effect addressed to the company, &c. induces them to treat him as a member, he cannot afterwards deny that he is so. (f) It makes no difference in such a case how he comes to his share, whether by a bare purchase and receipt of scrip certificates that are handed over to him by the vendor, or by a transfer, in itself invalid, from an unregistered proprietor prior to the formation of the register of the proprietors. (g)

387. Secondly. Of the determination or devolution

(e) See Cromford and High Peak Railway Company v. Lacey, 3 Y. & J. 80.

(f) London Grand Junction Railway Company v. Freeman, 2 Railw. Cas. 468; S. C. 2 M. & Gr. 606; Sheffield, Ashtonunder-Lyne and Manchester Railway Company v. Woodcock, 2 Railw. Cas. 522; S. C. 7 M. & W.574; Cheltenham and Great Western Union Railway Company v. Daniel, 2 Railw. Cas. 728; S. C. 6 Jur. 577; London Grand Junction Railway Company v. Graham, Same v. Gunston, 2 Railw. Cas. 870; S. C. 1 Ad. & E. N. S. 271; Birmingham, Bristol and Thames Junction Railway Company v. Locke, 2 Railw. Cas. 867; S. C. 1 Ad. & E. N. S. 256.

(g) London Grand Junction Railway Company v. Freeman, ubi supra; Sheffield, Ashton-under-Lyne and Manchester Railway Company v. Woodcock, ubi supra. The doctrine laid down in the text, must, it is conceived, be understood with this limitation, that there is nothing in the company's act to confine the liability for calls to original subscribers, or their legal transferees. See judgment of Lord Denman, C. J., in London Grand Junction Railway Company v. Freeman, ubi supra.

of the above liability. This may be brought about in two ways: 1st, by transfer; 2ndly, by forfeiture. Again, a transfer may take place in three ways: by the act of the owner, by the act of the law, and by the act of God.

388. (First) then, of a transfer by the act of the owner. Subject to one restriction, viz. that he is not to assign while in arrear for calls to the company, a shareholder possesses a discretionary power of assigning his shares, and by the exercise of that power may at any time rid himself of all future liability for calls, (h) the general scope and policy of a railway act being to treat a shareholder (at least one who takes by transfer, and is not an original subscriber) as identified with his share, and as having nothing to do with the company either as regards rights or liabilities before he becomes or after he ceases to be a shareholder. A shareholder accordingly continues liable to the payment of calls only so long as he individually continues possessed of his shares, and upon assignment thereof, coupled with an entry of a memorial of the transfer, the assignee holds the shares upon the same conditions as his assignor, and is to all intents and purposes substituted (¿) in his place; shares may be thus assigned even to insolvent parties. (1)

(h) Huddersfield Canal Company v. Buckley, 7 T. R. 42. But it may be questioned, whether (looking at the ordinary provisions of railway acts) an original subscriber can thus discharge himself from his liability on the parliamentary contract; see Hornby v. Houlditch, cited in Ludford v. Barber, 1 T. R. 92, 93; Fitzpatrick on Railway Rights, &c. P. 13.

(i) Huddersfield Canal Company v. Buckley, 7 T. R. 42.