1840.

The South Eastern Railway Company against

HEBBLEWHITE.

The Same against WRIGHT.
The Same against Banner.

IN N The South Eastern Railway Company against Heb- By the South

Eastern Railblewhite the plaintiffs declared, in debt, for that way act whereas defendant heretofore, to wit 1st October 1839, Ixxv., local

(6 & 7 W. 4. c.

and personal, then being proprietor of divers, to wit 100, shares, was

public), no indebted to plaintiffs in 3001., for a call of 31. a share, proprietor can

act or vote as and further in 300l. for another call of 31. a share, and a director till

his calls are

paid; and four directors are a quorum. The directors have power, from time to time, to make calls, giving certain notice, which the shareholders are to pay, with interest from the day appointed for payment to the actual payment. In case of neglect of payment, the company may sue in debt &c., or the directors may declare the shares forfeited, of which forfeiture no advantage shall be taken until notice has been given to the shareholder, and the declar. ation of forfeiture has been confirmed by a meeting held three months at least after such notice. In any action to recover the money, it is sufficient, by the statute, to declare that defendant, being proprietor, is indebted to the company in the sum in arrear, for a call or so many calls &c., on a share belonging to defendant, whereby an action hath accrued &c., without setting forth the special matter; and on the trial it is only necessary to prove that defendant was proprietor at the time of making the call, and that the call was in fact made and the notice given, without proving the appointment of the directors who made the calls, or any other matter whatsoever; and the company is thereupon entitled to recover what appears due, including interest, unless it appears that the call is for more per share, or is made payable earlier, or that more calls have been made, than the act permits, or that notice of the calls has not been given.

The company having declared in debt for calls and interest thereon in the general form given by the act, the Court, under stat. 4 Ann. c. 16. 8. 4., allowed defendant to plead the following pleas :

1. Nunquam indebitatus;
2. That defendant was not proprietor modo et formâ ;

3. That the shares have been declared forfeited, and the steps directed by the act taken thereon.

But struck out the following:

1. That there were not present, when the calls were made, four directors who had paid their calls;

W

The South

1840. further for 501. for interest for the forbearance of moneys

due in respect to the said shares; whereby an action Eastern Rail- has accrued by virtue of a certain act (6 & 7 W. 4. way Company

against c. lxxv. (a)), &c. : yet defendant hath not paid &c. HEBBLEWHITE.

On

6

(a) “ For making a railway from the London and Croydon Railway to Dover, to be called • The South Eastern Railway.""

1840.

On 21st November 1839, Littledale J. ordered that the defendant should have leave to plead several matters, to wit:

“ 1st. Nunquam

The South EASTERN Rail. way Company

against HEBBLEWHITE.

such his rateable proportion, together with interest, if any, then, or at any time thereafter, it shall be lawful for the said company to sue for and recover the same in any of his Majesty's courts of record by action of debt or on the case, or by bill, suit, or information; or the said directors may and they are hereby authorized to declare the shares belonging to such owner to be forfeited, and to order such shares to be sold : provided nevertheless, that no advantage shall be taken of any forfeiture of any share in the said undertaking until notice in writing under the hands of two directors, or under the hand of a secretary or clerk of the said company, that such share hath been declared forfeited, shall have been given or sent by the post unto or delivered to some inmate of the last known usual place of abode of the owner of such share, nor until the declaration of forfeiture of the said directors shall have been confirmed either at a general or special general meeting of the said company, such general or special general meeting being held after the expiration of three calendar months at the least from the day on which such notice of forfeiture shall have been given as aforesaid ; and after such declaration of forfeiture shall have been confirmed by such general meeting or special general meeting, the said company, by an order to be made at the same or at any subsequent general meeting or special general meeting, shall have power to direct the said directors to dispose of the shares so forfeited, or any of them, in manner by this act directed; and the said directors may in that case sell and dispose of such shares at a public auction or by private contract," &c. ; " and a declaration in due form of law as aforesaid made by some credible person not interested, before any justice" &c., "stating that such call had been made by the said directors, and that such notice had been given, and that such default in payment had been made in respect of the share so sold, and that the same share had been declared to be forfeited, and that such declaration had been confirmed in manner hereinbefore mentioned, shall be sufficient evidence of the facts therein stated, and the purchaser of such share shall not be bound to see to the application of his purchase money, nor shall his title to such share be affected by any irregularity of proceeding in reference to such sale, but such declaration, and the receipt of the treasurer of the said company for the price of such share shall be sufficient evidence of title thereto for all purposes whatsoever."

Sect. 117 enacts “ that in any action to be brought by the said company against any proprietor for the time being of any share in the said

Kk 4

undertaking

The SOUTH

1840. “1st. Nunquam indebitatus.

« 2d. That defendant was not proprietor modo et Eastern Rail- formâ. way Company against

66 3d. That there were not present, at the respecHEBBLEWHITE.

tive meetings at which calls were made, four directors who had paid the money called for in respect of their shares."

A rule of Court was made in pursuance of this order; and the pleas were pleaded accordingly. In Michaelmas term, 1839, W. J. Alexander obtained a rule nisi for

undertaking to recover any money due and payable for or in respect of any call, it shall be sufficient for the said company to declare and allege that the defendant, being a proprietor of a share in the said undertaking, is indebted to the said company in such sum of money as the calls in arrear shall amount to, for a call or so many calls of such sums of money upon a share belonging to the said defendant, whereby an action hath accrued to the said company by virtue of this act, without setting forth the special matter ; and on the trial of such action it shall only be neces. sary to prove that the defendant at the time of making such respective calls was a proprietor of a share in the said undertaking, and that such call was in fact made, and that such notice was given as is directed by this act, without proving the appointment of the directors who made such calls, or any other matter whatsoever ; and the said company shall there. upon be entitled to recover what shall appear due, including interest, computed as aforesaid, on such calls, unless it shall appear that any such call exceeded 51. per share, or was made payable before the expiration of three calendar months from the day appointed for payment of the last preceding call, or that notice was not given as hereinbefore required, or that calls amounting to more than twenty in the whole had been made in some one year; and in order to prove that the defendant was a proprietor of such share in the said undertaking, as alleged, the production of the book in which the said company is by this act directed to enter and keep the names and additions of the several proprietors from time to tine of shares in the said undertaking, with the number of shares they are respectively entitled to, and of the places of abode of the several proprietors of the said undertaking, and of the several persons and corporations who shall from time to time become proprietors thereof or be entitled to shares therein, shall be primâ facic evidence that such defend. ant is a proprietor, and of the number and amount of his shares therein.”

discharging discharging the rule of Court and the order of Little- 1840. dale J., and for striking out the third plea.

The South EESTERN Rail

way Company In The South Eastern Railway Company v. Wright against

HEBBLEWHITE. the declaration was in the same form.

On 21st December 1839, Littledale J. ordered that the defendant should have leave to plead :

“Ist. A denial of being indebted.

“ 2d. That the interest in the said last count mentioned is claimed in respect of the calls, and that there was no notice of such calls.

66 3d. That the interest claimed is in respect of calls, and that the directors did not appoint a time and place for, or persons to receive, the payments.

4th. That the interest claimed is in respect of calls, and that the calls were made for purposes not authorised by the act.

" 5th. That the interest so claimed in respect of the calls (a), and that the shares were declared to be forfeited by the directors, and that the defendant acquiesced in such forfeiture.”

A rule of Court was made in pursuance of this order; and the pleas pleaded. In Hilary term, 1840, W. J. Alexander obtained a rule nisi for discharging the rule of Court and Judge's order, and for striking out the second, third, fourth, and fifth pleas.

In The South Eastern Railway Company v. Banner the declaration was also for two calls and for interest, in the same form as the other declarations.

On 8th January 1840, Littledale J. ordered that the defendant should have leave to plead :