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arise on the words of the enacting part, the preamble may be resorted to to explain it.” And Mr. J. Grose observes, « Though the preamble cannot control the enacting clause, we may compare it with the rest of the act in order to collect the intention of the legislature.” In [491] Mason v. Armitage (13 Ves. 25) Lord Erskine says, referring to Simm v. Metivier (ī W. Bla. 599, 3 Burr. 1921), “ It is said in the report that the preamble shews the intention ; but the law is, that if the enacting part will bear only one interpretation, the preamble will not confine it. If that is doubtful, then the preamble may be applied to throw light upon it.” So, in Halton v. Cove (1 B. & Ad. 538) it is said by Lord Tenterden, “It is very true, as was argued for the plaintiff, that the enacting words of an act of parliament are not always to be limited by the words of the preamble; but must, in many instances, go beyond it. Yet, on a sound construction of every act of parliament, I take it, the words in the enacting part must be confined to that which is the plain object, and general intention, of the legislature in passing the act, and that the preamble affords a good clue to discover what that object was.”

Here, all the words in the enacting clause, on which the other side rely, will have some meaning given to them by construing them with reference to the preamble. Each branch of the preamble points to a case where the whole of the members of the company either must or should, properly speaking, be joined in bringing any action. The deed bears date in 1836, but the act was not passed until 1840. The legislature seem either to have assumed, that all calls or shares had then been paid up, or to have left such calls to be recovered under the deed; for the act does not appear to have been intended to interfere with the deed; otherwise it would have contained a clause authorizing the company to make calls; and the absence of such a provision affords a strong presumption, that the enforcing of the calls was left entirely to the operation of the deed. In Williams v. Beaumont (10 Bingh. 260, 3 Moo. & Sc. 705), an act incorporating an in-[492]-surance company, after reciting that difficulties had arisen, and might thereafter arise, “in bringing and maintaining actions and suits for recovering debts and enforcing obligations now due, or hereafter to become due to the said society," enacted, " that all actions and suits commenced or instituted, &c., by or on behalf of the said society, &c., against any person, &c., for recovering any debts, or enforcing any claims or demands now due, or which may hereafter become due or arise to the said society, &c., shall, &c., be commenced or instituted and prosecuted in the name of the chairman or secretary, &c. as the nominal plaintiff, &c.” It was held that the chairman might sue for a libel on the company. There, the judgment of the court seems to have proceeded very much on the ground taken in this case on the part of the defendant. Alderson J. says, “The construction of the act is, that where an action could have been maintained by naming all the individuals of the company, it shall be lawful to substitute for their names the name of the chairman. Whatever actions could have been maintained by the entire body, may be maintained by the chairman on their behalf, and, inasmuch as the entire body might have maintained an action for this libel, the chairman is authorized to sue for them in his own name.” Here, however, all the members of the company could not have sued; for being a covenant under seal, pone could sue but the four parties with whom it was made.

Secondly, it appears from the declaration that certain shares are exempted from the payment of calls; and it is not alleged that the defendant's shares are not exempted from such liabilities, or that they are shares on which the company are entitled to make calls. (Stephen Serjt. This objection is not taken as a ground of demurrer.) The objection is open to the defendant upon general demurrer. The other side will rely on the allegation that the proportion or instalment of the [493] defendant called for in respect of his shares amounted to 1501. ; but that is a mere calculation, which, it is submitted, is not sufficient to obviate the objection.

Thirdly, the declaration does not allege that the day on which the call was made was more than three calendar months after the date of the deed of settlement, or that three calendar months had expired from the payment of any former instalment. There is nothing in the declaration from which any intendment can be drawn with respect to either of these points, inasmuch as the date of the deed and the day of the call are both laid under a videlicet. In Parkinson v. Whitehead (ante, vol. ï. 329) the declaration stated that theretofore, to wit, on the 31st of May 1825, by an agreement in writing, the defendant's testator agreed, within two years from Midsummer then next, to build certain houses; and alleged for breach that the houses at the commencement of the action (1839) were unbuilt, contrary to the agreement. This court held the declaration bad on general demurrer, for not shewing that two years from Midsummer next after the making of the agreement had elapsed previous to the commencement of the suit. It is clear, therefore, that no cause of action is shewn to be existing at the commencement of the suit.

Stephen Serjt., contrà. With respect to the main objection, that this action should not have been brought in the name of the secretary of the company, the preamble and the enacting part of the clause taken together, shew that this very case falls fairly within the provisions of the act. It appears from the recitals in which the deed of settlement is set forth, that only part of the capital has been paid up. The enacting portion of the clause provides that the secretary may sue “upon [494] any bonds, covenants, &c., 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 company is or shall be interested.” It is impossible to conceive words more studiously adapted to the present case than those employed. It is argued that the recital that “difficulties have arisen and may hereafter arise in recovering debts and moneys due to the said company,” shews that the act was only meant to apply to cases in which it was necessary for all the members of the company to sue or to be sued; but it is an undoubted principle that a preamble cannot be admitted to control or restrain the enacting words of a clause where these are free from doubt or obscurity. “Where words in a statute are express, plain, and clear, the words ought to be understood according to their genuine and natural signification and import, unless by such exposition a contradiction or inconsistency would arise in the statute by reason of some subsequent clause from whence it might be inferred that the intent of the parliament was otherwise. And this holds with respect to penal, as well as other, acts : " Bac. Abr. Statute (I.), 2. The object of the act was, not only to provide against the inconvenience of naming all the proprietors as plaintiffs in actions brought by the company against third parties, but also to enable the company to sue its own members on contracts, whether made with the company or with the trustees of the deed of settlement. [Maule J. Has there not been a recent case on this subject in the Exchequer?] The case alluded to is Hughes v. Thorpe (5 M. & W. 656). The 6 G. 4, c. 42, s. 10 (the act for the better regulation of co-partnership [495] banks in Ireland), enacted that all actions and suits, &c. against any person who may be indebted to any such co-partnership, and all proceedings at law or in equity under any commission of bankrupt, and all other proceedings at law or in equity to be commenced or instituted for or on behalf of any such co-partnership against any person or persons, bodies politic or corporate, or others, whether members of such copartnership or otherwise, for receiving any debts, &c. due to such co-partnership, shall, from the passing of this act, be commenced or instituted and prosecuted in the name of any one of the public officers, &c. of the said co-partnership. A question was there raised, but which it became unnecessary to decide, whether the act conferred upon the company a right to bring an action in the name of its public officer against one of its members for a debt due to the co-partnership. Parke B. said, " That is a point which I think admits of considerable doubt, and upon which I have not made up my mind. I believe the intention of the legislature was to give such a power; but I have considerable doubt whether the words admit of it.” The words on which the doubt arose in that case are very similar to those contained in the middle of the present clause ; but other words are added here, namely, “and it shall and may be lawful for the said company at law, in equity, and in bankruptcy in manner aforesaid to sue,” &c. (see ante, p. 490), which appear to have been introduced to guard against the difficulty which was suggested in Hughes v. Thorpe. The fourth section of the act presents an incidental confirmation of the liability of a proprietor to be sued in the name of the secretary, for calls (b).

(6) “Provided also and be it enacted, that no person or persons, or body or bodies politic or corporate, having or claiming, or who shall or may have or claim, any demand or demands, or cause of action, or suit upon or against the said company, whether such person or persons or any of such persons shall be a proprietor or proprietors of the said company or not, shall bring more than one action or suit, or actions or suits in respect of such demand or cause of action or suit, or alleged cause [496] With respect to the objection that the declaration contains no allegation that the defendant's shares are not exempted shares, it cannot be supported. The declaration avers that the defendant is the proprietor of sixty shares; and, after setting out, among other things, the deed whereby the defendant contracted with the trustees, and the call made of 21. 10s. per share, it states that the proportion or instalment of the defendant so called for in respect of his said sixty shares, amounted to 1501. ; that the defendant had due notice of the call, &c.; and that he then became liable to pay to the company, on, &c., the said sum of 1501., being the said proportion, &c. As this objection arises on general demurrer, the question is, whether the allegation that the defendant became liable to pay the company 1501. is not suffi-[497]-cient to shew that he was a proprietor of unexempted shares; for it could not be true, if he was not. It is submitted that the averment is equivalent to an allegation that he was a proprietor of unexempted shares, and a traverse might have been taken upon it. It is clear that the averment is not in the nature of a virtute cujus—an inference from preceding allegations. If the defendant meant to object to the form of the allegation, he should have demurred specially to it. Davis v. Lovell (4 M. & W. 678) shews that upon general demurrer this allegation is sufficient. [Maule J. Supposing the defendant's shares had really been exempted shares, ought he not to be able to raise that defence by a negative plea? Could he, on a traverse of the allegation in question, say, that his were exempted shares ?] The affirmative would lie on the plaintiff; and, in order to make out that any sum was due, he must shew that the defendant was the proprietor of unexempted shares. If the defendant meant to say that the declaration contained no allegation upon which, as to this point, he could take an apt issue, he should have set that out as ground of special demurrer.

Another objection is, that it is not alleged that three months had elapsed between the date of the deed and the making of the call, or that there was an interval of a like period between the day appointed for the payment of the present and that appointed for the payment of any former call. It is averred, however, that the directors “duly made a call of money for the purposes of the company, according to the provisions of the said indenture of settlement,” which, it is submitted, is a sufficient allegation of a compliance with the whole of the stipulations in the deed. It is a mistake to suppose, that where a variety of requisites are necessary previously to making a call, it is incumbent to state separately that [498] they have all been complied with. It is a well-known rule in pleading that, where a full statement would lead to inconvenience and prolixity, a condensed form of allegation is sufficient.

The remaining point is, whether any cause of action is shewn to have existed before the commencement of the suit. Such an allegation is clearly unnecessary : it has always been understood that where there is an averment of past matter, such matter must be taken to have occurred before the commencement of the suit. There is a clear distinction between a prospective allegation and one referring to a thing that is past ; for if there were not, it would be necessary, in almost every case, to aver that events had happened before the action was brought. There is an allegation here that the directors, ten days after the time appointed for the payment of the

of action or suit; and in case the merits in respect of any such demand or cause of action or suit, actions or suits, or alleged cause of action or suit, actions or suits shall have been finally determined in any action or suit, then and in every such case the proceedings in such previous action or suit may be pleaded in bar of any such other or subsequent action or suit, or actions or suits which may be commenced or instituted in respect of the same demand against the secretary or against any other director or proprietor of the said company; and in case the merits in respect of any demand or cause of action or suit which the said company, or any person or persons in trust for them, or for their benefit, now has or have or hereafter may have upon any person or persons, or body or bodies politic or corporate, whether such person or persons, or any of such persons shall be or shall have been a proprietor or proprietors of the said company or not, shall have been determined in any other action or suit previously commenced or prosecuted by the secretary or any elected director of the said company, then, and in such case the proceedings in such previous action or suit may, in like manner, be pleaded in bar of any such subsequent or other action or suit, or actions or suits which may be commenced or prosecuted for the same demand by the same or any other secretary or elected director of the said company."

call, had called upon the defendant to pay the

money.

It is clear, therefore, that the day appointed for payment of the call had elapsed; for a bygone time is mentioned in the declaration, and that time is referred to as being subsequent to the day when the call became due.

Channell Serjt., in reply. The first objection to the form of the allegation is, not that no call was made, but that there is nothing to shew the defendant's liability to the call. The defendant could not have traversed the allegation which has been relied on.

If he had done so, the plaintiff would have demurred, on the ground that it was uncertain whether the defendant meant to deny that he was a proprietor, or that the call had been duly made, or to say that his shares were exempt.

With respect to the objection that the declaration does not shew that either period of three months had elapsed, no such effect can be given to the words “duly made a call of money, &c., according to the provisions [499] of the said indenture of settlement,” as has been suggested. The language of the declaration in Parkinson v. Whitehead was quite as strong as that which occurs here; and yet it was held insufficient. As regards the main objection, the conclusion of the clause in the act has been relied on, as obviating the doubt entertained in Hughes v. Thorpe ; but, throughout the section, the general words are always used in connection with the words “at law or in equity.” It does not follow that because the trustees may possibly be entitled to sue the defendants on the deed, the secretary of the company may sue him under the act; for that would be to give a construction to the act, which, it is submitted, cannot be fairly drawn from its provisions, when taken in connection with the preamble.

Cur. adv. vult.
TINDAL C. J. now delivered the judgment of the court.

This was an action of debt brought by the plaintiff, therein described as secretary, for the time being, duly appointed and inrolled in that behalf, of a certain company called “ The Monmouthshire Iron and Coal Company,” being a company mentioned in an act of parliament of the third and fourth years of the reign of Her present Majesty, which was passed to enable the said 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; and the action was brought upon a certain indenture of settlement, dated the 25th of October 1836, to which the defendant was a party, to recover the amount of a certain call made by the directors for the purposes of the said company, according to the provisions of the indenture, upon the shares in the capital belonging to the defendant. The defendant demurred to the declaration; and the principal ground of objection which was raised on the part of the defendant [500] was, that the statute only enabled the secretary to sue where the question was one in which the whole of the company were concerned on the one part, and third persons or strangers on the other; and that it never was intended to enable the company to sue in the name of the secretary one of its own members, for an instalment of the capital secured by a deed, in which each of the proprietors had covenanted with certain trustees to make due payment of the instalments. But we think, upon reference to the enacting words of the first section, they are sufficiently large to comprehend this case. Amongst those words will be found the following: “any covenants which already have been entered into with the said company, or with any persons in trust for the said company, or with any persons for the use of the said company ;” which appear to us necessarily to include within them the covenant made by the defendant with the trustees in the deed of settlement for the benefit of the company. And the same section further enacts that the action shall be maintainable against the defendant, “whether he is a proprietor of the said company or not.” And as, on the one hand, this construction may be beneficial to the company, by preventing the necessity of recourse to equity in case their trustees require to put the deed in suit; so, on the other hand, no injury can result to the defendant by giving this interpretation to the statute ; as, by section 4, he can only be liable to one action on the same subject matter of demand.

Other objections of a formal nature were urged against the sufficiency of the declaration ; first, that it appears by the declaration, that there being a certain number of shares which were exempted from having calls made thereon, it does not distinctly appear that the shares of the defendant were not exempted shares. But we think that the direct allegation in the declaration, “ that the proportion or instalment of the defendant, so called [501] for in respect of his sixty shares in the capital of the

company,” amounted to such a sum of money, is, by necessary implication and intendment, an allegation that those shares were not exempted from liability ; for, had that been the case, no proportion or instalment whatever would have been due upon them. And as to the more formal objections—that there is no allegation that the call was not made until after the expiration of three calendar months from the date of the indenture, or that it was not payable until after the expiration of three calendar months, from the time appointed for the payment of any former instalment, -we think there is no ground for either; for as to the last, the declaration, besides containing a distinct allegation, that the call was made according to the provisions of the said indenture, avers also, " that the same call was not made so payable till more than three calendar months after the day appointed for payment of any previous instalment ;” and as to the former, namely, the want of an averment that it was not made until after three months from the date of the indenture, the declaration contains a substantive allegation, not under a videlicet, that the instalment became due and payable on the 16th of January then next, which by a subsequent averment, not under a videlicet, is alleged to be the 16th of January 1841; and as the statute, which refers to, and recites, the deed, -received the royal assent on the 4th of August 1840, the day of payment of the call must have been more than three months after the date of the deed.

We think, therefore, that none of the grounds of objection are sustainable, and that there must be judgment for the plaintiff.

Judgment for the plaintiff.

[502] ALEXANDER BRYMER BELCHER AND OTHERS, Assignees of Robert Stockdale,

a Bankrupt, v. GEORGE CAPPER AND OTHERS. 1842.

[S. C. 5 Scott, N. R. 257; 11 L. J. C. P. 274.] By a memorandum of charter it was agreed that A. should let, and B. should hire

A.'s vessel for six calendar months, during which time B. was to possess the entire and exclusive use and disposal of the whole reach and burthen of the vessel, with the exception of the space occupied with the cabin, together with room for the usual accommodation of the crew, and for the stowage of stores and provisions ; that the master should from time to time, and as often as B.'s interest should require, take on board, and properly stow, all such lawful goods, to the extent of a full and complete cargo, as should be tendered to him for that purpose, and proceed therewith upon such lawful voyage or voyages as B. or his agents should direct him to do; and that he should deliver the said goods agreeably to the bills of lading; that the freight and primage for such goods should be payable to B. or his order; that in the event of the completion of the six months whilst the vessel was upon a voyage or after she had commenced taking goods on board for a voyage, the term of that agreement should be prolonged until the discharge of her cargo after her arrival at, or return to, a port in Great Britain ; that the owners or masters should keep the vessel tight, and manned, and provisioned and fitted with necessary stores. In consideration whereof B. agreed to pay to A. at a certain rate per ton per month, to be paid by—one month's pay in advance in cash,-one month's pay after the vessel should be entered outwards,—one month's pay that day two months, -and one month's pay at the expiration of each succeeding month, till the end of the term she might be employed, -and the balance in cash on her final discharge, together with port charges, &c. ; that B. should have the privilege of putting in a master of his own appointment, he finding the cabin with all stores, and paying his wages, A. allowing whatever rate of wages A. paid his own master; and as the master was to be appointed by B. to superintend his interests, A. was not to be responsible for such master's acts and conduct, should he deviate from the charter, but B. was to be responsible to A. for the conduct and integrity of such master whilst he should have the navigation of the vessel. Held, that the possession of the vessel was given up by A. to B. during the continuance of the contract; that the master so appointed by B. was in possession of the cargo as his agent, and not as the servant of A. ; that personal credit was given to B. for the payment of the hire of the vessel, and that no lien upon, or right of stoppage of, the goods, was reserved to the owners as a security for the payment of such hire.—Money having

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