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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. (f)

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

(e) Ibid. s. 3, App.

(f) Ibid. s. 5, App.


Of Remedies.

Part I.-Of Remedies for or against Railway Companies.
II.-Of Remedies between Individual Shareholders.


Of Remedies for or against Railway Companies.

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


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)

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

474. I. At law. 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.

over, the appointment of the attorney may be presumed to be under the seal of the company. (k)

480. Next, of the grounds of defence to an action for calls, &c. A shareholder, when sued for calls, will not be allowed to plead matter which is either not essential to the justice of his case, or contrary to the policy and provisions of the company's act of incorporation. In general, a railway act expressly provides (1) what proof the company must adduce to entitle themselves to recover in an action for calls, viz. proof of the call being in fact made, of the defendant's being a proprietor, and of notice being given pursuant to the act. Those three facts existing, the defendant is primâ facie liable, and can only defend himself by denying those facts, or by showing matter subsequent which goes to avoid their effect, such as payment, release, or a forfeiture of the defendant's share declared by the directors, (m) and confirmed and adopted by the company pursuant to the provisions of their act, &c. A defendant, therefore, cannot be allowed, under an act containing the above provisions touching the measure of proof, to question in an action for calls the constitution of the company, the appointment of the directors, the propriety of the measures of the company generally, or of the purpose in particular for which the calls forming the subject of the action are made, and the

(k) Thames Haven Railway Company v. Hall, 5 M. & Gr. 274.

(1) As to provisions of Companies Clauses Consolidation Act (8 Vict. c. 16), on this head, see act, s. 27, post, App.

(m) Per Alderson, B., in Edinburgh, Leith and Newhaven Railway Company v. Hebblewhite, 2 Railw. Cas. 246; S. C. 6 M. & W. 707.

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