Provisions extending Duties of Railway Companies. 347

472. All passenger railway companies so incorporated, &c. are to provide one cheap train each way daily, subject to the conditions prescribed by the legislature, (a) and are liable to a penalty for noncompliance.

The Board of Trade have a discretionary power of allowing alternative arrangements in regard of such cheap trains, except as to the amount of fare, and in case the company conform to these, they are not liable to the above penalty. (b) Where companies, subject to the above obligation, run trains on Sundays, they must likewise provide sufficient carriages for the conveyance of third-class passengers by such train each way as stops at the greatest number of stations, and this at all the stations, both terminal and other, at which such Sunday train may ordinarily stop, the fare not to exceed one penny per mile. (c)

V. Of the Conditions attached to future Grants of Parliamentary Powers for the making of Railways.

473. Passenger railways, authorized by an act of the session of 1844, or any subsequent session of parliament, are subjected to certain conditions for the benefit of the public. If at any time after the expiration of twenty-one years from the 1st of January next after the passing of their act, the company's profits, upon an average of the three then last preceding years, equal or exceed ten per cent., the Lords of the Treasury may, subject to certain provisions made by the legislature in that

(a) 7 & 8 Vict. c. 85, s. 6, App. As to penalty for noncompliance, see ib. s. 7, App.

(b) Ibid. s. 8, App. (c) Ibid. s. 10, App.

behalf, revise the scale of the company's charges, and fix a new scale; or, whatever be the rate of profit, may, at the like period, and subject to the provisions prescribed in that behalf, purchase the railway and its appurtenances on behalf of the crown. (d) Such option of revision or purchase is not, however, to apply to railways authorized by the legislature previously to the session of 1844; neither is any branch, &c. of less than five miles in length to be deemed a new railway within the provisions of the act giving such option; nor is the option of purchase to be exercised as regards any branch, &c. without including the principal railway in the purchase, if the company so require. (e)

To render the above option available, the company are to keep accounts of their receipts and payments during the last three years; and such accounts

are to be open to inspection. (ƒ)

(d) 7 & 8 Vict. c. 85, ss. 1, 2, 4, App.

(e) Ibid. s. 3, App.

(f) Ibid. s. 5, App.

CAP. VII.

Of Remedies.

Part I.-Of Remedies for or against Railway Companies.

II.-Of Remedies between Individual Shareholders.

PART I.

Of Remedies for or against Railway Companies.

Sect. I.-Of Remedies for Railway Companies against Share

holders.

II.-Of Remedies for Railway Companies against Strangers. III.-Of Remedies for Shareholders against Company.

IV.-Of Remedies for Strangers against Company.

SECT. 1.-Of Remedies for Company against
Shareholders. (a)

474. I. At law.

I.- At Law.
II.-In Equity.

The main duty which a railway act imposes on the individual members of the company is that of paying the amount of their respective subscriptions in such parts and proportions, and at such times, as they are called on to do by the company under the provisions of their act. The remedies, (b) therefore, to which the company is entitled

(a) As to service of notices on shareholders under Companies Clauses Consolidation Act (8 Vict. c. 16), see act, s. 136, post, App.

(b) As to remedy for company against directors, see Imperial Gas Company v. Clarke, 7 Bing. 95.

at law against its members are in general confined to the particular instance of a nonpayment of calls.

475. If an Irish company, whose concerns are all carried on in Ireland, bring an action for calls in England, they may be compelled to give security for costs, and this, notwithstanding they have money in a banker's hands in London, and many of the members reside in England. (c) And the same rule applies to a Scotch Company, though possessed of money and exchequer bills in their banker's hands in London. (d)

476. Declaration. (e) The act incorporating the company usually gives a concise form of declaration (ƒ) in actions for calls. Although the declaration does not follow the form given by the act, yet, if it disclose a possible state of things under which the defendant might be liable by virtue of the act of parliament, or if it contain what is tantamount to an ordinary indebitatus count, it may still be supported, at any rate upon general demurrer; (g) as, for instance, where the declaration stated that the defendant, before the commencement of the suit, being a proprietor of divers shares, before and at the

(c) Limerick and Waterford Railway Company v. Fraser, 4 Bing. 394.

(d) Edinburgh and Leith Railway Company v. Dawson, 3 Jur. 55.

(e) As to when necessary to bring action within particular jurisdiction, see post, p. 356, and Dundalk Western Railway Company v. Tapster, 1 A. & E. N. S. 667; S. C. 2 Railw. Cas. 586.

(f) See Companies Clauses Consolidation Act (8 Vict. c. 16), sect. 26, post, App.

(g) The Aylesbury Railway Company v. Mount, 4 M. & Gr.

commencement of the suit, was and still is indebted in, &c., whereby and by reason of the same being unpaid, the defendant still is indebted, &c.

477. Where the declaration charges a party as subscriber, it need not disclose an obligation by deed, unless indeed the act requires such a mode of obligation as indispensable to constitute a subscriber. The subscription deed, at any rate, it can in no case be necessary to declare upon specially and directly, inasmuch as being executed before the passing of the act, and consequently before the existence and formation of the company, the company can be no party to it. (h) Even assuming, however, a subscription by deed to be necessary to support an action against a party "as subscriber," and that in strictness it ought to be alleged, yet the omission is cured by verdict. (h)

478. Where the statute gives a right to recover what is due for calls including interest, it is not necessary to insert in the declaration a count for interest, nor ought the amount of the interest to be added by the plaintiffs to the calls, but it may be recovered as damages for the detention of the debt. (i)

479. If the declaration states the appearance of the company by attorney, and the defendant pleads

(h) The Great North of England Railway Company v. Biddulph, 2 Railw. Cas. 420; S. C. 7 M. & W. 243.

(i) Southampton Dock Company v. Richards, 2 Railw. Cas. 215; S. C. 1 M. & Gr. 448; see also London and Brighton Railway Company v. Fairclough, 2 M. & Gr. 690. But if in such case defendant suffer judgment by default, a rule to compute cannot be had, but there must be a writ of inquiry; Cheltenham and Great Western Union Railway Company v. Fry, 7 Dowl. P. C. 616.