&c. of the third part, it was and is provided and declared, and each of the persons parties to the said indenture (except the said R. Hopkins, Rice Hopkins, T. Hopkins and W. T. H. Phelps), did for himself and herself respectively, and his and her respective heirs, executors, and administrators, covenant, promise, and agree to and with the said R. Hopkins, &c., their executors and administrators, and each of them the said R. Hopkins, &c., did for himself, his heirs, executors, and administrators, covenant, promise, and agree with the said R. Welsh, H. Marsh, and W. Phelps, their executors and administrators, amongst other things in manner following, that is to say, that there should be a board of directors of the said company, and that certain persons in the said indenture mentioned should be the first directors of the said company, and that every registered proprietor for the time being of forty or more shares in the capital of the said company, and who should either be a party to and have executed the said indenture, or have become or be and have been a registered proprietor of forty or more shares therein for the space of six calendar months, and who should not hold any office or place of emolument or profit in the [480] said company other than that of treasurer or trustee, and other than as thereinafter mentioned, should, so long as he should be the holder of forty or more shares in the said capital, be also a director of the said company; that the said directors should meet together at certain days and times, and at certain places in the said indenture in that behalf particularly mentioned; and that it should be lawful for the board of directors, when and so often as they should think proper, to come to a resolution that the proprietors and other holders for the time being of shares in the capital of the said company (except the proprietors for the time being of certain shares in the said indenture mentioned, and thereby exempted from the payment of calls) should be called upon to pay at any time after the expiration of three calendar months from the date of the said indenture, and after the expiration of three calendar months from the time appointed for payment of any former instalment, such further instalment, not exceeding 21. 10s. upon every share in the said capital (except as aforesaid), as the board of directors should, from time to time, think necessary, until the whole amount of the said shares respectively should be paid up; that at least ten days before the time to be appointed for payment of any future instalment, the board of directors should cause a circular letter to be sent by the post to every proprietor or holder for the time being of shares, signifying the amount of such instalment, and the time and place appointed for payment of the same, and stating that if such instalment should not be paid within three days after the time appointed for the payment of the same, interest after the rate of 51. per cent. per annum would be payable thereon from the time when the same became due, and that if such instalment, with such interest thereon, should not be paid within two calendar months after [481] the time appointed for payment of the same, the share or shares in respect of which such instalment should be payable, should be liable to be forfeited to the said company; that within twenty-one days after the day appointed for the payment of any future instalment, the board of directors should cause to be sent in like manner to every proprietor or other holder who should not have paid the instalment on his or her share or shares, a circular letter containing a second application for the payment of the same, and setting forth the statements to be made in the first circular letter in regard to the payment of instalments and the liability to forfeiture; that subject and without prejudice to the powers thereinbefore given to the general meetings, the board of directors should have the entire management of, and superintendence over, the affairs and concerns of the company, and should, in all cases provided for by the said indenture, or thereafter to be provided for by the general meetings, act in strict conformity to the laws and regulations thereby established, or thereby to be established; that every present and future proprietor or other holder or holders of any of the shares in the capital of the company, (except as to the shares exempted from the payment of calls as thereinbefore provided as aforesaid,) should pay every instalment that might be called for in respect of each of his, her, or their shares, on or before the day, and at the place appointed for the payment thereof, and mentioned in the circular letters for calling the same; provided that no further instalment should be payable until at least three calendar months should have elapsed after the day appointed for the payment of any previous instalment; that if any instalment should not be paid within three days next after the day mentioned for that purpose in the circular letters for calling the same, then interest after the rate of 51. per cent. per annum should be paid on such instalment by the pro-[482]-prietor or pro

prietors, or other holder or holders of such share, from the time when the same ought to have been paid up to the time when the same should be actually paid; that in no case should the instalment for the time being required on any share exceed the instalment required on any other such share, and in no case should there be required in respect of any one share more than the sum of 501. in full for the same, exclusive of the premium, when the same might have been sold at a premium, or more than the difference between the amount of the discount and the sum of 501., when the same might have been sold at a discount, and no instalment thereafter to be called for on any one of the said shares should exceed the sum of 21. 10s. ; as by the said indenture reference being thereunto had would, amongst other things, more fully and at large appear. Averment: that after the making of the said indenture and within twelve calendar months after the passing of the said act of parliament, a memorial of the names, residences, and descriptions of the secretary, and of the several elected directors for the time being of the said company, in the form and to the effect expressed in the schedule to the said act, was verified by a declaration in writing, in the form in and by the said act of parliament required, by the secretary for the time being of the said company, and the same, when so verified, afterwards, and within twelve calendar months from the passing of the said act, to wit, on the day and year aforesaid, was inrolled in the High Court of Chancery, according to the directions of the said act, and that proper memorials of the names, residences, and descriptions of such new secretaries and directors as had since from time to time been elected and appointed, and of such persons as had ceased and discontinued to be proprietors of the said company, had been duly verified and inrolled from time to time in the said High Court [483] of Chancery, at the times and in the manner in and by the said act mentioned and required; that afterwards, and whilst the defendant was such proprietor of sixty shares in the capital of the said company, and after the execution by the defendant of the said deed of settlement as aforesaid, to wit, on the 22d of December 1840, certain persons then being proprietors and directors of the said company for the time being, duly inrolled in that behalf, as required by the said act of parliament, and duly constituted, and being, a board of directors for the management of the affairs of the said company, according to the provisions of the said indenture of settlement, at a certain meeting held pursuant to the said indenture of settlement, at the office of the said company at Bath, duly made a call of money, for the purposes of the said company, according to the provisions of the said indenture of settlement, of and from the proprietors, to wit, a call or instalment of 21. 10s. upon every share in the capital of the said company, (except the said exempted shares,) to be paid and payable by the said proprietors on the 16th of January then next following, such call or instalment not exceeding in respect of any one share the call or instalment required on any other such share, and not requiring in respect of any one share more than the sum of 501., exclusive of any premium or discount in respect thereof, and the same not being made 80 payable as aforesaid, till more than three calendar months after the day appointed for the payment of any previous instalment; that the proportion or instalment of the said defendant, so called for in respect of his said sixty shares in the capital of the said company, amounted to a large sum of money, to wit, the sum of 1501., and that the said board of directors after the making of the said call, and at the distance of ten days and more from the time so appointed for payment thereof as aforesaid, to wit, on the 26th of De-[484]-cember 1840, caused to be sent and delivered to the defendant a circular letter, signifying the amount of the said proportion or instalment, and the said time so appointed for the payment thereof as aforesaid, and also that the said amount thereof should and might be paid by the defendant to, &c. &c., and that if the said amount or instalment should not be paid within three days after the time so appointed for the payment thereof as aforesaid, interest at the rate of 51. per cent. per annum would be payable thereon from the time when the same become due, and that if such amount or instalment, with such interest thereon, should not be paid within two calendar months after the time so appointed for payment of the same as aforesaid, the shares in respect of which the same was payable would be liable to be forfeited to the said company; by means of which said several premises respectively, the defendant then became liable to pay to the said company on the said 19th January 1841, the said sum of 1501., being the said amount of the said proportion or instalments in respect of the said sixty shares of the defendant as aforesaid; that no part of the said sum being paid by the defendant on the said day so appointed for the payment

thereof as aforesaid, the said board of directors, within twenty-one days afterwards, to wit, on the 5th of February 1841, caused to be sent and delivered to the defendant a second application for the payment of the said sum and setting forth the statement so made in the said first circular letter in regard to the payment of the said instalment and the liability to forfeiture: nevertheless the defendant had not paid to the company the said sum of 1501., or any part thereof, but had hitherto wholly neglected and refused so to do; and the same, together with a farther large sum of money, to wit, the sum of 21. 15s. 9d. for interest upon the same, after the rate aforesaid, from the said [485] 16th of January in the year last aforesaid, was still wholly due and unpaid to the said company; whereby an action had accrued to the plaintiff, as such secretary as aforesaid, for and on behalf of the said company and according to the form of the statute in that case made and provided as aforesaid, to demand and have of and from the defendant the said several sums of 1501. and 21. 15s. 9d., amounting together to the sum of 1521. 15s. 9d., being the said sum above demanded: yet the defendant had not paid the said sum above demanded, or any part thereof; to the damage of the said company of 101. ; and thereupon the plaintiff, as such secretary as aforesaid, and for and on behalf of the said company, and according to the form of the statute in such case made as aforesaid, brought his suit.

Special demurrer, assigning for causes-that the declaration did not shew with sufficient or any certainty that the present action was brought for any injury or wrong done to any real or personal property of the company therein mentioned, or upon or in respect of any liability or liabilities to the said company, or upon any covenants, contracts, or agreements entered into with the said company, or to or with any person or persons whatsoever, in trust for the said company, or to or with any person or persons for the use and benefit thereof, or wherein the said company was interested; that it did not with sufficient or any certainty shew a cause of action in respect of which the plaintiff was entitled to sue as secretary for the said company; that it did not shew any cause of action existing before the suit commenced, and did not state the inrolment of the memorial therein mentioned with sufficient certainty and precision; that it did not with sufficient certainty state or shew that three months, or any time from the date of the said indenture had elapsed before the commencement of the suit, or the time of payment of the alleged call at [486] all; that it did not state or shew with sufficient or any certainty that the indenture therein mentioned was the indenture referred to in the act of parliament therein mentioned; and that it was in other respects uncertain, informal, and insufficient, &c. Joinder (a). The case was argued in last Hilary term.

Channell Serjt. in support of the demurrer. One important question in this case is, whether, supposing the defendant is liable to be sued, the action can be brought in the name of the plaintiff as the secretary of the company. The deed set out is of

a peculiar character. The parties thereto of the first part, including the defendant, enter into certain covenants with the parties of the second part, who are not described "That

(a) On the part of the defendant, the points marked for argument were,it did not sufficiently appear from the declaration, that the action was carried on for the benefit of the company mentioned in the declaration. That, consistently with the declaration, the calls therein mentioned were not payable to the company, or to any person in trust for the company, and the company might not have any interest therein. That the declaration did not shew with sufficient certainty any cause of action whereon the plaintiff is entitled to sue as secretary for the company. That it did not shew any cause of action existing before the commencement of the suit. That it did not sufficiently, or at all shew that three months, or any time from the date of the said indenture had expired. That it did not sufficiently shew that three months from the date of the said indenture had expired at the time of the proprietors of the said company being called upon to pay the calls in the declaration mentioned."

The plaintiff's points were, "The plaintiff, on the argument of this case, will maintain the affirmative of the six several points set down for argument on behalf of the defendant; and that, under the provisions of the statute 3 & 4 Vict. c. cxxvi., referred to in the declaration, he is entitled to sue as secretary for calls due to the company; and that the declaration, in its present form, is sufficient to entitle him to recover such calls, and discloses a good cause of action, as well under the statute aforesaid as under the deed of settlement set forth in the declaration."

as [487] trustees or directors of the company. It will be contended on the other side that the defendant, being a party to the deed, has, in effect, contracted to pay any instalments that may become due on his shares. Even assuming the calls to have been properly made, the act does not apply to a case like the present, but is confined to cases where the name of the secretary is to be used in order to avoid the necessity of suing in the names of the whole company. Here the four covenantees may sue the defendant. The deed of settlement is in the nature of a deed of copartnership, and the act could not be intended to apply to a case of a member of the company sued for calls. The enacting clause is to be construed with reference to the preamble, which is the key to the whole of the first section (a). The principle laid down in the [488]

(a) The 3 & 4 Vict. c. cxxvi., intituled "An act to enable the Monmouthshire Iron and Coal Company to sue and be sued in the name of any one of their directors or their secretary, and to raise money for carrying on their works," after reciting that a number of persons has some time since formed themselves into a company or co-partnership under the name or firm of "The Monmouthshire Iron and Coal Company," for the purpose of erecting and establishing iron and coal works on certain premises respectively situate at Bedweltye and Abercarne, in the county of Monmouth, comprised in a certain indenture of declaration of trust and covenant, bearing date the 25th of October 1836, and made between Roger Hopkins, Rice Hopkins and Thomas Hopkins, and William Truman Harford Phelps of the first part, and R. Welsh, H. Marsh and W. Phelps, of the second part; and for the carrying on the iron and coal trade: (sic) and that the affairs and concerns of the company had been carried on and conducted and managed under and subject to the rules, regulations and provisions contained in a certain indenture also bearing date the 25th of October 1836, and made between the several persons whose names and seals are thereunto subscribed and affixed (except the said Roger H., Rice H., T. H., W. T. H. P., and R. W., H. M. and W. P.) of the first part, the said Roger H., Rice H., T. H. and W. T. H. P. of the second part, and the said R. W., H. M. and W. P. of the third part, purporting to be the deed of settlement of the company, by which it was provided that the capital of the company might consist of 300,000l. to be raised or created in, and divided into, 6000 shares of 501. each and no more; and further, that the board of directors of the said company should proceed to carry into effect the objects and purposes of the company, without delaying the same until the whole of the 6000 shares should have been subscribed for and appropriated, and notwithstanding that a part only of such shares should have been subscribed for and appropriated: and that the capital or joint stock of the company consisted of 204,4001. divided into 4088 shares and no more, of which capital the sum of 146,0001. had been actually paid up by the proprietors of shares in the company, and 450 were free shares: and that difficulties had arisen and might arise in recovering debts and moneys due to the company, and in maintaining actions for damages done to the company or to the property of the company, since, by law, all the members for the time being of the company must be named in every action or suit carried on for such purpose, and it would be convenient that persons having demands against the company should be entitled to sue the secretary of the company or any one of the elected directors thereof for the time being, and that prosecutions for embezzlement, robbery or stealing the property of the company, or for fraud, or for any other offence against the company, should be instituted and carried on in the name of the company, or name of the secretary or one of the elected directors thereof for the time being: and that it was expedient that certain powers should be granted to the company to raise a sum of money; and that the company should be regulated in other respects as thereinafter mentioned: enacts, "that all actions and suits whatsoever against any person or persons already indebted or who may hereafter be indebted to the company called, &c., and all actions, suits and other proceedings whatsoever at law or in equity, for any injury or wrong done to any real or personal property of the said company, or upon or in respect of any present or future liability or liabilities to the said company, or upon any bonds, covenants, bills of exchange, promissory notes, contracts or agreements which already have been or hereafter shall be given or entered into, to or with the said company, or to or with any person or persons whatsoever in trust for the said company, or to or with any person or persons for the use or benefit thereof, or wherein the said company is or shall be interested, and all instruments, petitions and other proceedings for or incidental C. P. XII.-7*

various authorities is, that if the words in the enacting clause go clearly beyond the preamble some effect is to be given to them; but if not, then such clause is to be [489] construed with reference to the preamble. In Bac. Abr. Statute (I.) 2, it is said that "it is in the general true that the preamble of a statute is a key to open the mind [490] of the makers as to the mischiefs which are intended to be remedied by the statute." So, in Co. Litt. 79 a. it is laid down that "the rehearsal or preamble of the statute is a good means to find out the meaning of the statute, and, as it were, a key to open the understanding thereof." In Crespigny v. Wittenoom (4 T. R. 790) it is said by Mr. J. Buller, "I agree that the preamble cannot control the enacting part of a statute which is expressed in clear and unambiguous terms. But if any doubt

to the issuing or prosecuting any fiat in, or commission of, bankruptcy in England or Ireland, or any sequestration in Scotland, against any person or persons already indebted, or who may be hereafter indebted to the said company, or to any person or persons in trust for the said company, or to any person or persons for the use or benefit thereof, and liable to be made bankrupt by the laws now or at any time hereafter to be in force relative to bankrupts and traders in England and Ireland, or to sequestrations in Scotland, and all proceedings at law or in equity under any commission of, or fiat in, bankruptcy, or under any sequestration by, for or on behalf of the said company, or wherein the said company is or shall be interested or concerned, and generally, all other proceedings whatsoever, at law or in equity, to be commenced, instituted or carried on by or on behalf of the said company, or wherein the said company is or shall be concerned or interested, against any person or persons, or body or bodies politic or corporate or others, whether such person or persons, or any of such persons or such body or bodies politic or corporate, or any member or members thereof respectively, is, or are, or shall be, or shall have been, a proprietor or proprietors of the said company or not, shall and lawfully may be commenced, made, executed, instituted, presented and prosecuted or carried on in the name of the secretary of the said company for the time being, or in the name of any one of the elected directors for the time being of the said company, as the nominal plaintiff, pursuer, complainer or petitioner, or as acting in any other character for or on behalf of the said company; and all actions, suits, and other proceedings at law or in equity, to be commenced, instituted or prosecuted against the said company by any person or persons, or body or bodies politic or corporate, whether such person or persons, or any of such persons, or such body or bodies politic or corporate, or any member or members thereof respectively, is, or are, or shall be, or shall have been, a proprietor or proprietors of the said company or not, shall and lawfully may be commenced, instituted and prosecuted against the secretary for the time being, or against any one of the elected directors for the time being of the said company, as the nominal defendant, respondent or defender in such last-mentioned actions, suits or proceedings for or on behalf of the said company, and the death, resignation or removal, or any other act or proceeding of such secretary or director, or any change in the members of the company, by the transfer of shares or otherwise, shall not abate, prejudice or render defective any action, suit, petition or other proceeding at law or in equity, commenced or instituted under this act, but the same may be continued, prosecuted, carried ou, or defended in the name of the secretary for the time being, or any elected director for the time being of the said company, notwithstanding the death, resignation, or removal, or any other act or proceeding of such secretary or director, and notwithstanding such change in the members of the said company; and it shall and may be lawful for the said company at law, in equity, and in bankruptcy in manner aforesaid, to sue and proceed against, and to be sued and proceeded against, by any person or persons, or body or bodies politic or corporate, nothwithstanding such person or persons, or body or bodies politic or corporate, or any member or members thereof respectively, is, or are, or shall be, or shall have been, a proprietor or proprietors of the said company, and that solely and jointly with any other person or persons, or body or bodies politic or corporate, in respect of any claim or demand which the said company may have against such person or persons, or body or bodies politic or corporate, either solely or jointly as aforesaid, or which such person or persons, or body or bodies politic or corporate, either solely or jointly as aforesaid, may have against the said company, the same as if such person or persons, or body or bodies politic or corporate, was, or were not, or had never been, a proprietor or proprietors of the said company.'