1842. The AYLESBURY v. MOUNT. made &c., and before the same was due and payable, by a deed under the seal of the defendant, and also under the seal of.the said C. T. (and which deed then being in the possession of the plaintiffs, the defendant was unable to bring the same into court there), in consideration of the sum of 5l. paid to the defendant by the said C. T., did assign and transfer to the said C. T. the said shares in the declaration mentioned, to hold to the said C. T., his executors, &c., subject to the several conditions on which the defendant held the same immediately before the execution thereof; and the said C. T. thereby then agreed to accept and take the said shares subject to the conditions aforesaid, as by the said deed, &c.: that the said deed was duly stamped before the same was executed by either party, and was made and executed according to the provisions of the act that the defendant and the said C. T. then duly delivered the said deed (the same then, and before the said call was payable, being first duly executed by both the defendant and the said C. T.) to the said company, to be kept by the said company according to the provisions of the said act, and then requested the said company to enter in the said company's books kept for that purpose, a memorial of the said transfer and sale, and to indorse. the entry of the memorial on the said deed; which memorial and indorsement the said. company then, and before the said call became due and payable, made, according to the act: and thereupon and before the said call became due and payable, to wit, on the said 7th of April, the said company duly received the said deed on behalf of the said company, the plaintiffs in this action, and then duly entered the memorial in the said company's book, and then duly indorsed the entry of the memorial of the said deed according to the said act, and then accepted and received the said transfer of the said shares of the defendant to the said C. T., whereby the defendant then, and before the commencement of this action, and before the said call had become due and payable, ceased to be the proprietor and owner of the said shares, and then ceased to be liable to the said call, under and by virtue of the provisions of the said act, in the declaration mentioned. Verification. Demurrer: assigning for causes, that the plea did not traverse, or confess and avoid, the cause of action stated in the declaration, or that the defendant was indebted as therein alleged; that, if the plea was pleaded by way of traverse, then the same was an argumentative, and not a direct, denial of the matters charged in the declaration, and improperly concluded with a verification instead of concluding to the country; that the plea amounted to a plea that the defendant never was indebted as in the declaration alleged, and should have been so pleaded; that, if the plea was intended to be pleaded by way of confession and avoidance, then the same did not sufficiently, or at all, confess that the defendant ever became or was indebted as in the declaration alleged; or, if it did sufficiently confess such liability, it shewed no matter by which the same had been discharged: that the plea did not aver or shew that C. T. ever became liable to pay the call; that the plea did not sufficiently admit or deny that the defendant was a proprietor of the shares in the declaration mentioned, or a subscriber to the undertaking at the time the call was made, or that due notice was given of the making of the call as required by the act, or that the defendant ever became or was liable to pay the same calls, or was indebted to the plaintiffs as in the declaration alleged that the plea was wholly immaterial, and admitted the cause of action stated in the declaration; that no single, certain or material issue could be taken thereon, &c. Joinder. The case was argued in last Michaelmas term by 1842. The AYLESBURY Railway Company บ. MOUNT. 1842. The AYLESBURY บ. MOUNT. Channell Serjt. (with whom was Bovill), in support of the demurrer. He contended that, although the defendant had transferred his shares, and such transfer had been registered by the company after the call had been made, and before it was payable, the defendant was not discharged from liability in respect of such call; that the words "subscribers to, and proprietors of, the said undertaking for the time being," in the earlier part of the 96th section of the act, must be taken to refer to parties who were subscribers and proprietors at the time of making the call; that a similar construction must be put upon the words "proprietors for the time being" in the 98th section; and there was nothing in the 101st and 102d sections repugnant to that construction. He referred to The Aylesbury Railway Company v. Thompson (a), where the court of Queen's Bench had decided that the transferee of these very shares was not liable to be sued in respect of them, not being the proprietor of them at the time the call was made. He also cited The Edinburgh, Leith and Newhaven Railway Company v. Hebblewhite (b); The Birmingham, Bristol and Thames Junction Railway Company v. Locke (c); and The London and Brighton Railway Company v. Fairclough (d), as authorities to shew that the plea was bad in form. Stephen Serjt., contrà, argued that the declaration was bad in substance, as it did not allege that the defendant was a proprietor at the time that the action was brought, as it should have done, if framed upon the 98th section of the act. [Tindal C. J. The company are not limited to any precise form of declaration by that section. It merely says that "it shall (a) 2 Railway Cases, 668. Railway Company v. Hibble- be sufficient for them to declare and allege" so and so.] The plea shews a good defence under the act, viz. that although the defendant was the proprietor of the shares in question at the time the call was made, yet he had ceased to be so at the time the call became payable. [Tindal C. J. That construction would give great facilities for defrauding the company. A proprietor might transfer his shares just before the call became due, and take them back again immediately afterwards.] The contrary construction would bear equally hard in the case of a bonâ fide transfer. There is nothing in the act to restrain the transfer of shares between the making of the call and the time when it becomes payable. The company are bound to record the transfer, and before a transfer was recorded they would look for payment to the party who held the shares at the time the call was payable. Or if, as decided in The Aylesbury Railway Company v. Thompson, they cannot recover against the transferee, it may be that their remedy is wholly lost. The present defence could not have been set up under the plea of "never indebted" under the rules of pleading, H. T. 3 & 4 W. 4. II. reg. 3. [Tindal C. J. The plea of "never indebted" denies that the plaintiff ever had a cause of action, which seems to be all that the defendant would require in this case.] The present plea confesses that the defendant was once a proprietor, and avoids the liability arising therefrom by shewing that he ceased to be so before the call became due. Channell Serjt. was heard in reply. Cur. adv. vult. TINDAL C. J. now delivered the judgment of the court. This is an action of debt, brought by the Aylesbury Railway Company against William Mount, for a call upon certain shares in that company. The declaration, 1842. The AYLESBURY Railway Company v. MOUNT. 1842. The AYLESBURY Railway Company V. MOUNT. in substance, states that the defendant having, before the commencement of the suit, been a proprietor of shares, was, and still is, indebted to the company for a call on each of his shares; and that, by reason of the call remaining unpaid, an action had accrued to the plaintiffs. The plea states, that the call was made payable on the 9th of April, and that the defendant transferred his shares by deed to one Charles Thompson, and that the company entered a memorial of the transfer according to the provisions of the act, before the call was payable. To this plea there is a demurrer; and the substantial question is, whether an action for a call can be maintained against a proprietor, who does not appear to have been an original subscriber, and who has transferred his shares, after an instalment of the subscription has been called for by the directors, and before the time appointed for payment of it. It is clear that, at common law,—that is, independently of the railway act, the matters stated in the declaration do not shew a cause of action; it is therefore necessary to consider whether the act gives any right of action under the circumstances disclosed in the declaration. The act in question is the 6 W. 4. c. lxxxvii., for making the railway therein mentioned; and it is obvious that the present question must be determined solely by refer ence to the clauses of that act which bear upon it. The proprietors of shares (not being subscribers – whose case is provided for, by s. 95.) are made liable by s. 96., which provides that the owners of shares shall pay the calls at the time appointed, and that if any owner for the time being shall refuse to pay, he may be sued, or his shares may be declared to be forfeited. It is clear that the remedy by forfeiture is a remedy against the owner for the time being, and is wholly inoperative against a person who has transferred his shares; the time being must, therefore, in this place, as far as for |