8 & 9 V., c. 16. Companies Clauses Consolidation Act.

the names and additions of the several persons entitled to shares in the company shall be placed by the company in a book, to be called the "Register of the Shareholders," together with the number of shares to which such shareholders are entitled respectively, distinguishing each share by its number, and the amount of the subscriptions paid; and such book shall be authenticated by the common seal of the company being affixed thereto; and the authentication shall take place at the first ordinary meeting, and so from time to time at each ordinary meeting of the company; and (Sect. 10) the company shall also provide a book to be called the "Shareholders' Address Book," in which shall be entered the names and places of business of the shareholders; and every shareholder may at convenient times peruse such book gratis; and may require a copy thereof on paying sixpence for every hundred words.

Sect. 11. On demandby the holder of any share, a certificate of proprietorship of such share according to the form in Sched. (A.), shall be delivered to him on his paying any sum not exceeding the prescribed amount, or if none be prescribed, not exceeding 2s. 6d. ; and (Sect. 12) such certificate shall be prima faci evidence of the title of such shareholder, his executors, administrators, successors or assigns to the share therein specified, but the want of such certificate shall not prevent him from disposing thereof; and (Sect. 13) certificate may be renewed when lost or destroyed, on payment of 2s. 6d. Sect. 14.-Subject to the regulations herein or in the special Act contained, every shareholder may transfer his share, and every such transfer shall be by deeds duly stamped ;h

subscriber; if, therefore, the scheme is no further prosecuted, the allottee may recover back the sum deposited, Walstab v. Spottiswoode, 10 Jur. 460; recognising, Nockels v. Crosby, 3 B. & C. 814; Pitchford v. Davis, 5 M. & W. 2; see also Kempson v. Saunders, 4 Bing. 5; S. C. J. B. Moore, 45; and a still later case of Wontner v. Sharp, referred to in 10 Jur., p. 253, where it has been held that an allottee is not bound even by signing the deed of settlement if the concern is broken up before completion.

May at convenient times peruse such book. -The Court will not assist a defendant in an action against him for calls on his shares, to inspect the books of a company, when such inspection is not authorized by the Act, especially if he only wishes to fish out a defence from some defect in the proceedings, The Birmingham and Junction Railw. Co., 1 Q. B. R. 282; S. C. 4 P. & D. 649; 2 Railw. Cas. 863; 5 Jur. 800; distinguishing this case from King v. King, 4 Taunt. 666; but under this clause a bond creditor will be entitled to such inspection to enable him to meet the defence to be set up by the company in an action on the bond, Pontet v. Basingstoke Can. Co., 2 Scott, 543; 2 Bing. N. R. 270; and where the power of granting an inspection is vested in a committee, application must be made to them, and the Court will not interfere on the bare refusal of the clerk, R. v. Wiltshire Can. Co., 5 N. & M. 344; see also S. P. 3 Ad. & Ell. 477; so, where books and papers are in the possession of an adverse party, the Court will not grant an inspection so as to enable the one side to get at the evidence of the other side, unless it can be shown that a defendant cannot go on with his defence without such inspection, Imperial Gas Co. v. Clarke, 7 Bing. 95; 4 M. & P. 727.

A certificate of proprietorship.-Where an assignee of shares has claimed to be registered as a proprietor thereof, and has obtained from the company a receipt for the scrip certificates, with a notice that they would be exchanged for sealed certificates on demand, he was held liable for the

calls on his shares, notwithstanding there had been no regular transfer of the shares to him from the original proprietor, nor any memorial of the transfer entered, as required by the Act, Cheltenham and Union Railw. Co. v. Daniel, 2 Q. B. R. 281; S. C. 2 Railw. Ca. 728; 6 Jur. 577; so in another case, notwithstanding there was an absence of proof of subscription, and a want of the memorial of transfer, yet the transferee having had his shares registered, he was held liable, London Grand Junction Railw. Co. v. Graham, 1 Q. B. R. 271 ; S. C. 2 Railw. Cas. 870; but when the certificates of shares did not contain the names of parties as original proprietors, nor had any endorsement of transfer to them, although their names were entered in the books of the company as transferees, yet they were held to be insufficient evidence of their title, Hare v. Waring, 3 M. & W. 362.

Shall not prevent him from disposing thereof-In The London Grand Junct. Railw. Co. v. Freeman, 2 Railw. Ca. 504; S. C. 2 Mann. & Gr. 606, it was held, that the register book, though kept irregularly, was prima facie evidence of title, and the holders of scrip certificates were properly entered before the passing of the Act, although they had neither signed the parliamentary contract, nor been originally subscribers.

8 Transfer shall be by deed. To complete the contract of sale of railway shares, the purchaser must tender the conveyance to the vendor for execution, as in the case of real property, Stephens v. De Medina, 4 Ad. & Ell. N. S., or Q. B. R. 422; 3 Railw. Ca. 454; but when the deed of settlement required the assent of the directors to a transfer, the vendor must obtain the same in order to complete the purchaser's title, Leeman v. Lloyd, 14 L. Journ. (N. S.) Q. B. 165; S. C. 9 Jur. 328.

Duly stamped.—Where, after a deed had been stamped, the name of the purchaser was changed, the matter being still in fieri, it has been held that admitting such alteration might have been made without destroying the validity

8 & 9 V., c. 16. Companies Clauses Consolidation Act.

and such deed may be according to the form in Sched. (B); and (Sect. 15) the said deed of transfer, when duly executed, shall be delivered to the secretary who shall enter a memorial thereof in a book to be called a "Register of Transfers," and the company may demand for such entry any sum not exceeding the prescribed amount, and if no amount be prescribed then not exceeding 2s. 6d. ; and an endorsement of such transfer signed by the secretary, may be considered the same as a certificate, but until the delivery of the transfer to the secretary, the vendor of the share shall continue liable to the company for any calls, and the purchaser shall not be entitled to receive any share of the profits; so (Sect. 16) no shareholder shall transfer his share after any call made in respect thereof until the same and all prior calls being due have been paid. Sect. 17.-Directors may close the register of transfers for the prescribed period, or if no period be prescribed then for a period not exceeding fourteen days previous to each ordinary meeting; and seven days' notice of such closing shall be given by advertisement in manner hereinafter mentioned; and any transfer made during such closing shall, as between the company and the party claiming under the same, but not otherwise, be considered as made subsequently to such ordinary meeting.

of the instrument under such an assumed state of facts, yet it was incumbent upon the seller, who produced and relied upon the deed in its altered shape, to show the circumstances under which the alteration was made, for the deed would have an operation at common law independently of any effect to be given to it by the execution of the purchaser; and the power of the stamp would be exhausted by such operation of the deed at common law, London and Brighton Railw. Co. v. Fairclough, 2 Mann. & Gr. 674; S. C. 3 Scott, N. R. 68; 2 Railw. Ca. 544; but where by a deed of settlement the directors were empowered to regulate the transfer, and to require a covenant from the transferee, to hold subject to the provisions of the deed; it has been held that such a transfer requires an ad valorem stamp only, and not an additional stamp, under the 55 G. 3, c. 184, Sched., Part I., tit. CONVEYANCE, as containing matter besides that which "was incident to the sale and conveyance," Wolseley v. Cox, 2 Q. B. R. 320; S. C. 11 L. Journ. (N. S.) Q. B. 9; 6

Jur. 599.

i Vendor of share shall continue liable. The practice has been for a broker to settle the price or value of the share between the vendor and purchaser, after which a printed form of transfer was filled up, except as to the purchaser's name; but it was held before this Act, that under such circumstances there was no undertaking implied by law to indemnify against all subsequent calls. A vendor therefore may insist upon not delivering a blank conveyance unless the purchaser will indemnify him against all intermediate calls, in which case he will be safe, Humble v. Langston, 7 M. & W. 517; S. C. 2 Railw. Ca. 541.

After any call made.-In The Great North of Engl. Railw. Co. v. Biddulph it is held, that the time of payment is the only material thing for the proprietors to be apprised of in the first instance, and if that be specified in the resolution, it is sufficient to satisfy the requisitions of the Act, so as the advertisement afterwards states the place where, and the persons to whom the money is to be paid; and in The Sheffield, &c. Railw. Co. v. Woodcock, 7 M. & W. 588; S. C. 2 Railw. Ca. 530, where the directors of the company made a resolution for a call, specifying the

amount of the call, and the day of payment, but not the place where, or the person to whom the payment was to be made, but a notice of that call, subsequently inserted in the local newspaper, according to the directions of the Act, it was held, in an action for the amount of such call against a party who was a proprietor at the date of the resolution of the notice, and of the day appointed for payment, that the call was properly made, it not appearing that there was any change in the directory during the interval; and it is there added, "A question indeed may arise in some cases, where there has been a change of proprietorship by transfer, what is the time of making a call, which fixes the liability of the then proprietor of a share under the 118th section of the Railway Act, the 7 W. 4, c. xxi., and which prevents the free transfer of a share under the 127th section ; whether it is to date from the original resolution, from the time of fixing the mode of payment, of giving notice in the newspapers, or even from the period when the calls become due. It may be that the resolution of the directors is only an inchoate act, and that the call is not complete until the mode of payment is appointed and notice thereof given; so that no one is liable, unless he be a proprietor, when the whole of these circumstances have occurred, and until all these have occurred, a proprietor is not deprived of the right of free transfer. It may be that both the liability to pay the instalment, and the impediment to the transfer, attach from the date of the resolution itself, though the mode of payment be not fixed, nor notice given until afterwards; or, lastly, it may happen that the term " call," may for one purpose date from the resolution, and for another from a different period. But it is unnecessary in this case to determine this question; for whether the first resolution, or the time of fixing the mode of payment, or of giving the notice (which is in this instance the same), or even the time fixed for the payment, be the call, this defendant was at each time the proprietor of the shares. All that we have now to determine is, that the directors may fix the time, place, and manner of payment, after the original resolution has been made, and by a distinct act," per Parke, B.

8 & 9 V., c. 16. Companies Clauses Consolidation Act.

Sect. 18.-If the interest in any share have become transmitted in consequence of the death, bankruptcy, or insolvency, or the marriage of a female shareholder, or by any other means than a lawful transfer, the same shall be authenticated by a declaration stating the manner of the transmission, the same to be made before a justice or Master in Chancery, and the same shall be left with the secretary, to be entered mm on payment of 58. or the prescribed amount; and until such authentication, no person shall be entitled to receive any share of the profits; and (Sect. 19) if the transmission be in consequence of the marriage of a female shareholder, the declaration shall contain a copy of the register of the marriage and a statement of the wife's identity; if in consequence of any testamentary disposition, or intestacy, then the probate, and letters of administration, and entry shall be made of such declaration.

Sect. 20.-The company shall not be bound to see to the execution of any trust; and the receipt of any party, or any one of several parties, in whose name any share may be standing, shall be a sufficient discharge to the company for any dividend or other sum of money payable in respect of such share, and the company shall not be bound to see to the application of such money.

Sect. 21.-All persons subscribing to any undertaking, shall pay the sums subscribed, or such portions thereof as may from time to time be called for by the company, and the payment thereof may be enforced P against the legal representatives of any shareholder; and (Sect. 22) the company may at any time, on giving twenty-one days' notice, make such calls upon the respective shareholders as they think fit, provided that the successive calls be not made at less than the prescribed intervals, nor the aggregate amount of calls in the year do not exceed that prescribed.

Death of shareholder.-Where shares are personal estate, and a canal or railway, &c. runs through different dioceses, the question will be in what court, probate or letters of administration are to be obtained; in one case the canal running through both provinces, but the office of business being in the province of Canterbury, probate in that of Canterbury was held sufficient, Smith v. Stafford, 2 Wils. Ch. R. 166; see also S. P. Ex parte Home, 7 B. & C. 632 ; S. C. nom. R. v. Worcester Can. Co. 1 Man. & R. 529.

Authenticated by a declaration. - The mortgagee of shares in a company must give notice of his incumbrance to the secretary, or his lien will be lost against a subsequent purchaser for valuable consideration without notice, Cumming v. Prescott, 2 Y. & Coll. Eq. R. 488; so to take shares out of the order and disposition of a bankrupt, who has deposited or mortgaged, notice thereof must be given to the company, Ex parte Waithman, 1 Mon. & Ayr. 364; so where a bankrupt pledged shares in a company, which belonged to his wife before her marriage, they were held to be in his reputed ownership, no notice having been given to the company before his bankruptcy, Ex parte Spencer, In re Mitchell, 3 Mon. & Ayr. 697.

m m

Left with the secretary to be entered.—A mandamus will lie against a company to compel them to enter the probate of a will of a deceased proprietor, and register his exccutrix as the person entitled, R. v. Worcester Can. Co., 1 M. & R. 529.

" Execution of any trust.-Where trust funds were invested in the purchase of transferable shares in a banking company, in which the trustee was also a proprietor of shares in his own right in the same company, and after having contracted to assign a certain number of shares to the company as a security for advances which they made to him, he became bankrupt, it was held

that the equitable title of the cestuique trusts to the shares purchased with the trust funds was perfected without notice to the company, by the execution of the declaration of trust thereof, Pinkett v. Wright, 2 Hare, 120; S. C. 12 L. Journ. (N.S.) V. C. W. 119; and it was also there held that the special contract by the proprietor to assign his shares to the banking company, as a security for their advances, gave the bank a lien on the shares then standing in the name of the proprietor, of which he was the beneficial owner, and that the same were not in his order and disposition at the time of the bank ruptcy, ib.

Subscribing to any undertaking.—An action for a call upon shares will not lie against a party who has transferred his shares after the call has been made and before it was payable, the company having entered a memorial of the transfer, Aylesbury Railw. Co. v. Mount, 2 Railw. Ca. 679; but in another case where the Act provided that until a memorial of the transfer had been made, the vendor was to remain liable for future calls, it was held that the purchaser was not liable to calls which were made before, but not payable until after the deed had been registered, Aylesbury Railw. Co. v. Thompson, 2 Railw. Ca. 668.

P May be enforced.-Where a testator was a registered owner of certain shares, in respect of which calls had been made in his lifetime and also after his death, it was held that his estate was liable to pay the calls made after as well as those before his decease, Fyler v. Fyler, 2 Railw. Ca. 873; but it was held in one case that the administrator of a subscriber to a projected canal, who died before the Act passed, could not be sued as a subscriber to the undertaking, or proprietor of shares. Weald of Kent Can. Co. v. Robinson, 5 Taunt. 801.

At the prescribed intervals.—Where a company was empowered by their Act to make calls

8 & 9 V., c. 16. Companies Clauses Consolidation Act.

Sect. 23.-On nonpayment of the call on the day appointed, shareholder shall be liable to pay interest from such day; and (Sect. 24) company may allow interest on sums of money paid by any shareholder before call; and (Sect. 25) may also enforce the payment of calls, with interest, by action; and (Sect. 26) in any action for a call, it shall not be necessary to set forth the special matter, it shall be sufficient for the company to declare that the defendant is the holder of shares (stating the number), and indebted to the company in the sum of money to which the calls in arrear amount (stating number and amount of such calls) whereby an action hath accrued to the company; and (Sect. 27) on the trial, it shall be sufficient to prove the defendant to be a holder, and that a call was in fact made, and it shall not be necessary to prove the appointment of the directors, nor any other matter whatsoever; and (Sect. 28) the production of the register shall be prima facie evidence" of such defendant being a shareholder.

Sect. 29.-If any shareholder fail to pay any call, the directors may, at any time after the expiration of two months from the day appointed for payment, declare the share in respect of which such call was payable forfeited, whether they have sued for the amount of such call or not Provided (Sect. 30) they have given previous notice of their intention; such notice to be left at, or transmitted by post to, the usual or last place of abode of the shareholder; but if the shareholder be abroad, or his address not properly known, or if the interest in the share is known to have been transferred, but the address of the transferree is not known, the directors shall give public notice in the London or Dublin Gazette, and also in some newspaper as hereinafter mentioned; and in either case the notice shall be given twenty-one days before declaration of forfeiture; and (Sect. 31) such declaration shall not take effect until the same has been confirmed by a general meeting,

not exceeding 101. per share, at an interval of not less than two months, and they made a single order calling on the proprietors for several payments of 107, each, to be made at intervals of two months; held, that the calls being made all at one time were irregular and could not be enforced, Stratjord, &c. Railw. Co. v. Stratton, 2 B. & Ad. 518.

With interest.-Where an Act incorporating a company prescribed a form of declaration in an action for calls, it has been held unnecessary to insert a count for interest, for where a statute gives an action of debt, it gives that which is ancillary to it, and the consequence of such an action, which is damages for the detention of the debt, The Southampton Dock Co. v. Richards, 1 Railw. Ca. 215: S. C. 1 Scott, N. R. 219; 1 Man. & Gr. 448; see also S. P. Lond. & Bright. Railw. Co. v. Fairclough, 2 Railw. Ca. 544; S. C. 3 Scott, N. R. 68; 2 Man. & Gr. 674.

* Not necessary to set forth the special matter. -Where in a declaration there was a misrecital, yet it has been held that a defendant in an action for a call, who with the knowledge that it was a misrecital, had paid previous calls, and acted as a proprietor, was estopped from questioning the validity of the proceeding, and that it was not incumbent upon the plaintiff to show that the defendant had executed a contract under seal, in order to prove that he was a proprietor, Cromford, &c. Railw. Co. v. Lacey, 3 Y. & J. 80; see also Great North of Engl. Railw. Co. v. Biddulph, 7 M. & W. 243; 2 Railw. Ca. 401; and Shelf. Law of Railways, 2nd ed. 126; West London Railw. Co. v. Barnard, 3 Ad. & Ell. N.S., or Q. B. R. 873; S. C. 13, L. Journ. (N.S.) Q. B. 68; 8 Jur. 144.

Any other matter whatsoever.—Where a Railway Act provided that in an action for calls it should only be necessary to prove that the defendantwas a proprietor of such and such shares and that such notice was given as directed by the Act,

V

without proving the appointment of the directors or any other matter, it was held sufficient to state the time and place of payment in the advertisement, without noticing the assent of the directors, which will be presumed, Lond.& Bright. Railw. Co. v. Fairclough, 3 Scott, N. R. 68; S. C. 2 Man. & Gr. 674; 2 Railw. Ca. 544 see further as to pleas in answer to action, &c. Shelf. Law of Railways, 2nd ed. 129.

" Prima facie evidence.-Where under a similar provision in a Railway Act, the register book produced at a trial did not contain the amount of subscriptions paid on the respective shares, yet it was held to be primâ facie evidence of the defendant being a proprietor of shares, Birmingham, &c. Junct. Railw. Co. v. Locke, 1 Ad. & Ell. N. S. or 1 Q. B. R. 256; S. C. 2 Railw. Ca. 867; so in another case it was held that the provision as to making the entries was merely directory, and any irregularity therein relating to other shareholders did not render the book inadmissible against the defendant. Southampton Dock Co. v. Richards, 1 Scott, N. R. 219; S. C. 1 Man. & Gr. 215; but where by another Act two books were required to be produced, the production of one book only was held not sufficient primâ facie evidence, London & Bright. Railw. Co. v. Fairclough, supra, n. (t); and where the seal was not affixed to the book of shares until after a call had been made, in an action for calls, this was held to be no evidence that the defendant was a proprietor at the time of the call, Cheltenham Railw. Co., 9 C. & P. 55.

▾ Until the same has been confirmed.-Therefore, where under a similar provision in a Railway Act, 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 to be forfeited, of which the defendant had due notice, and acquiesced in the forfeiture, it was held on special demurrer, that the plea was bad,

8 & 9 V., c. 16. Companies Clauses Consolidation Act.

and by an order directing the forfeited share to be sold; and (Sect. 32) after such confirmation, the directors may sell the same in such manner as they think fit. Sect. 31.-A declaration in writing by some credible person not interested in the matter, made before any justice or Master of the High Court of Chancery, that the call was made, and notice thereof given, also that default was made and forfeiture declared and confirmed in manner herein before required, shall be sufficient evidence of the facts therein stated; and such declaration, together with the receipt of the treasurer of the company for the price of such share, shall constitute a good title to such share; and a certificate of proprietorship shall be delivered to purchaser, who shall be deemed the holder, discharged from all prior calls, and shall not be bound to see to the application of the purchase-money, nor shall his title be affected by any irregularity in the proceedings.

Sect. 34. No more shares shall be sold than what are sufficient for the payment of the arrears of the calls and interest thereon, together with the expenses attending the declaration of forfeiture and sale, and the surplus shall, on demand, be paid to the defaulter; and (Sect. 35) if payment of such arrears, interest, and expenses, be made before sale, such share shall revert to the holder.

Sect. 36.-If execution be issued against the company, and sufficient effects cannot be found whereon to levy such execution, the same may be issued against any of the shareholders to the extent of their shares: Provided always, that no such execution shall issue against any shareholder except upon an order of the Court in which the action was brought, such order to be made upon motion in open Court; and for the purpose of ascertaining the names of the shareholders, and the amount of capital remaining to be paid upon the respective shares, any person entitled to such execution may inspect the register of shareholders; and (Sect. 37) if by means of such execution any shareholder has paid any sum beyond the amount then due from him in respect of calls, he shall be reimbursed out of the funds of the company. Sect. 38.-If the company be authorized by special Act to borrow money on mortgage or bond, they may, subject to the restrictions imposed by the Act, borrow such sums from time to time as may be authorized by an order of any general meeting, not exceeding in the whole the sum prescribed by the special Act; and for securing the repayment of the money so borrowed, with interest, may mortgage the undertaking, and the future calls on the shareholders, or give bonds in manner hereinafter mentioned;

for not showing that the shares were declared to be forfeited at a general or special meeting of the company, according to the provisions of the Act, Edinburgh, &c. Railw. Co. v. Hibblewhite, 16 M. & W. 707; S. C. 2 Railw. Ca. 237; 8 D. P. C. 802; so, where a company, pursuant to their Act, gave notice to a proprietor, that if the calls were not paid by a certain day, the shares would be declared forfeited, and the calls were not paid, but the forfeiture was not confirmed by a meeting of the company; held, that the defendant could not avail himself of this state of facts as a defence to the action, on the ground of not being a proprietor, as the forfeiture does not attach, till sanctioned by a meeting of proprietors, The Birmingham, &c. Railw. Co. v. Locke, 1 Ad. & Ell. N.S. or Q. B. R. 256; S. C. Railw. Ca. 867.

W

Upon motion in open Court.-Under a similar clause in a company's Act it was held that execution could not be issued against an individual shareholder merely upon motion, but there must also be a previous scire facias, Clowes v. Brettel, 10 M. & W. 506; see also Bradley v. Eyre, 11 M. & W. 432, and Dig. Part II., tit. EXECUTION, p. 538 n. (m).

May inspect the register of shareholders. By the 1 & 2 V., c. 110, s. 14, shares in public companies belonging to the debtor and standing in his own name shall be charged with the payment of the judgment debt and interest thereon, by order of a judge of one H. M.'s superior courts at West.; but it has been held that a judge of the

Court of Chancery is not a judge of one of such superior courts within the meaning of this clause, Miles v. Presland, 2 Beav. 300; 4 My. & Cr. 431.

y With interest.-Where a company was empowered to mortgage their undertaking to persons advancing money, and by the form of the mortgage the company engaged to pay the interest half-yearly, it was held that the property of the company alone was pledged for the payment of the monies advanced with interest, and that the proprietors were not liable to be sued in covenant for the arrears of interest, Pontet v. Basingstoke Can. Co., 4 Scott, 182; 3 Bing. N. C. 433. So, where there was a conveyance of a company's works and rates to a mortgagee, to hold until repayment of the money borrowed and interest, but there was no covenant to pay the interest, it was held, under the 3 & 4 W. 4, c. 27, s. 14, that although the mortgagee could recover the principal within twenty years, yet his remedy for arrears of interest was limited to six years, Hodges v. Croydon Can. Co., 3 Beav. 86.

May mortgage the undertaking.-Under this word "undertaking," in a similar provision, it has been held that the land or any portion of the company's real estate were not comprehended, and that the mortgagee did not thereby acquire title to the land, Ďoe v. St. Helen's, &c. Railw. Co., 2 Ad. & Ell. 756, or 2 Q. B. R. 264; S. C. 2 Railw. Ca. 756.