Exch. of Pleas, 1840. The EDINBURGH, LEITH, and NEWHAVEN RAILWAY COM- DEBT for two calls of £2 each, upon forty shares in 6 & 7 Will 4, is provided, that in actions by the Company for calls, it shall be sufficient to allege, that the defendant, being a proprietor of so many shares, is indebted to the Company in such sum of money upon such shares belonging to him, whereby a right of action hath accrued to the Company by virtue of this act, without setting out the special matter; and in such action it shall only be necessary to prove that the defendant was a proprietor at the time of making the calls, that they were in fact made, and that notice thereof was given according to To a declaration in the general form given by this clause, the defendant pleaded pleas denying notice of the calls pursuant to the act, and concluding with a verification:-Held, that the allegation of notice, that being a fact necessary to be proved in order to entitle the plaintiffs to recover, must be taken to be impliedly contained in the declaration, by reference to the act of Parliament; and therefore that the pleas, being in denial of a matter necessarily implied in the declaration, ought to have concluded to the country and not with a verification, and were on that ground bad on special demurrer. the act. Semble, that in such case, the plea of not indebted would sufficiently put in issue all the matters required by the act to be proved in support of the action. By another section of the act, (s. 49), the directors were empowered to make the calls in manner therein mentioned, and to sue for them, in case of nonpayment, by action of debt; or otherwise, in their option, the proprietors neglecting to pay the same should forfeit all their shares for the benefit of the Company: provided, that no advantage should be taken of any such forfeiture, until notice thereof given to the proprietor in manner therein mentioned, nor unless the same should be declared to be forfeited at some general or special meeting of the Company within six months after such forfeiture should happen, which declaration should ipso jure be a forfeiture of the shares. To an action of debt for calls, the defendant pleaded, that by reason of having neglected to pay calls on his shares, they were, in pursuance of the act, declared by the directors to be forfeited, and the directors exercised and declared their option, according to the act, that the same should be forfeited, and the same then became and were forfeited, of which the defendant had due notice, and acquiesced in the forfeiture:-Held, on special demurrer, that the plea was bad, for not shewing that the shares were declared to be forfeited at a general or special meeting of the Company, according to the provisions of the act. (a) Sect. 50. "In any action or suit brought by the said Company, in the manner hereinafter directed, against any proprietor or proprietors of any share or shares in the said Company, to recover any sum or sums of money due and payable to the said Company, for or by reason of any call or calls made by virtue of this act, it shall be sufficient for the said Company to declare and allege, that the defendant or de- 1840. EDINBURGH & LEITH v. HEBBLEWHITE. Exch. of Pleas, the defendant was not nor is indebted in manner and form, &c.; secondly, that no notice of the respective calls in the declaration mentioned, or of any part thereof, RAILWAY Co. Was given in manner and form as required by the said act of Parliament :-verification; thirdly, that the directors did not appoint any time or times or manner for the payment of the said calls, or any of them, nor any bank or bankers at which or to whom the same, or any of them, might or were to be paid, as in and by the said act in that behalf directed:-verification; fourthly, that before the commencement of this suit, to wit, on the 13th of December, 1839, by reason of the defendant, as such proprietor as aforesaid, having neglected and refused to pay his rateable and proportionable share of money called for in respect of the said respective shares, according to the said act of Parliament, being the said calls in the declaration mentioned, for the space of two calendar months and more, theretofore elapsed after the time in that behalf fixed for payment thereof, the said shares in the declaration mentioned were and each of them was, in pursuance of the said provisions of the said act of Parliament in that behalf, declared by the directors of the said Company to be forfeited; and the said directors then exercised and declared their option, according to the said act of Parliament, that the same should be forfeited, and the same respectively, to wit, then became and were forfeited, of which the defendant, to wit, then had due notice, accord this act, without setting forth the without proving the appointment of the directors who made such call or calls, or other matters whatsoever, and the said Company shall thereupon be entitled to recover the said call or calls which shall appear to be due, and the legal interest which shall be due thereon, and the expenses that may be incurred in prosecuting for and recovering the same." ing to the said act of Parliament and the provisions thereof, and, to wit, then assented thereto and acquiesced in the said forfeiture-verification; fifthly, that this action was commenced after a certain sale and transfer of the said respective shares theretofore made by the defendant, the then proprietor thereof, without his having paid or discharged divers large sums of money, amounting in the whole to a large sum of money, to wit, £100, which had theretofore, and before such sale and transfer, been duly called for upon the said respective shares, and upon each of which said respective shares there was at the time of such sale and transfer a large sum of money, part of the sum of £100, respectively due, and that such sale and transfer was made after the passing of the act of Parliament in the declaration mentioned, and before the passing of another act of Parliament concerning the said Company, passed the 1st of July, 1839, to wit, on the 1st of September, 1838, whereby, and according to the said first-mentioned act of Parliament, the same shares became and were forfeited; of all of which premises the plaintiffs, to wit, on the said 1st of September, 1838, had notice, and the said forfeiture in this plea mentioned was, to wit, then, in all respects duly ratified and declared, in the manner in the said first-mentioned act of Parliament in that behalf directed:-verification. Special demurrer to the 2nd, 3rd, 4th, and 5th pleas : assigning as causes of objection to each of them, "that it amounts to the general issue, and ought to have concluded to the country, and is neither a denial, nor a sufficient nor proper confession and avoidance, of any matters in the declaration mentioned, &c. ;" and, in addition, to the 4th and 5th pleas respectively, "that it is an informal and improper denial of the averment in the declaration, that the defendant was the owner and proprietor of shares in the Company, as therein alleged, and that the plea does not state that the said shares were declared to be forfeited at 1840. EDINBURGH & LEITH RAILWAY Co. ຫ. HEBBLEWHite. Exch. of Pleas, any meeting of the said Company, general or special, after such forfeiture was made." 1840. EDINBURGH & LEITH RAILWAY CO. v. Cowling, in support of the demurrer.-All the pleas are HEBBLEWHITE. bad, as amounting to the general issue, and also as not being either in denial, or in confession and avoidance, of any matter alleged in the declaration. The second plea states in substance, that no notice of the calls was given. But notice is a fact which must be shewn in evidence by the plaintiffs, in support of their case. The statute 6 & 7 Will. 4, c. cxxi, s. 50, gives a general form of declaration for calls; but it is nevertheless a necessary part of the proof on the part of the Company, under the plea of nunquam indebitatus, that the several conditions precedent, specified in the 49th section (a), have been com (a) Section 49. The said Company shall have power from time to time to make such call or calls of money from the present or any future proprietors, their heirs, &c., according to the amount of their respective interests, shares, and subscriptions already belonging to or subscribed for, or hereafter to belong to or be subscribed for by him, her, or them, for the purposes of this act, as the directors of the Company shall from time to time deem necessary for those purposes, payable on such day or days as shall be fixed by the said directors, due notice of which shall be made to the proprietors by advertisement in one or more of the newspapers published in Edinburgh, giving not less than fourteen days' notice, or by a letter put into the post-office, signed by the secretary or other officer or person or persons appointed by the directors; but so as no call shall exceed the sum of two pounds for every twenty pounds on the sum or sums so subscribed, and so as no call to that amount be made but at any interval of three calendar months, at least, from the preceding call; which money so called for shall be paid to such bank or bankers, and in such manner, as the said directors shall from time to time appoint and direct for the purposes of this act, and the said calls shall bear interest from and after the periods of payment so fixed until payment; and in case such proprietor or proprietors shall neglect or refuse to pay his, her, or their rateable or proportionable part or share of the said money, to be paid for as aforesaid, and interest thereon, for the space of two calendar months after the time or any of the respective times fixed for payment thereof as aforesaid, then, and in every such case, the same, with interest due thereon, and costs of suit, may be either sued for and 1 1840. EDINBURGH & LEITH RAILWAY Co. HEBBLEWHITE, v. plied with. In the case of The London and Brighton Rail- Exch. of Pleas, way Company v. Wilson (a), the defendant sought to plead a similar plea to the present, but the Court refused to allow it, Tindal, C. J., saying, that the plea of never indebted called upon the plaintiffs, before they had any right to say such debt was recoverable, to prove the condition precedent as to notice, which the act of Parliament had imposed upon them. The act having expressly dispensed with certain allegations which must otherwise have appeared upon the face of the declaration, of which this as to notice is one, the defendant ought not to put upon the recovered by the said Company in persons, appointed by the directors, (a) 6 Bing. N. C. 135. |