The Cork and Bandon Railway Company v Goode
| Jurisdiction | England & Wales |
| Judgment Date | 31 May 1853 |
| Date | 31 May 1853 |
| Court | Court of Common Pleas |
English Reports Citation: 138 E.R. 1342
IN THE COURT OF COMMON PLEAS AND EXCHEQUER CHAMBER
1342 THE CORK AND BANDON RAILWAY CO. V. GOODE 13 C. B. 618. [618] the cork and bandon eailway company v. goode. May 6, 1853. In debt by a railway company on the 8 & 9 Viet. c. 16, s. 26, for arrears due on calls, the defendant, being under terms to plead issuably, pleaded "that the action is upon contracts without specialty, and the alleged causes of action did not, nor did any or either of them, accrue within six years before this suit." The plaintiffs having signed judgment, on the ground'that this was not an issuable plea,-the Court set aside the judgment.-And, held, that the plea" was not improperly described in the abstract, as the "statute of limitations." This was an action of debt, for calls. . The declaration-stated, that the defendant was the holder of thirty shares in the Cork, and Bandon Railway Company, and was indebted to the said company in the sum of 825.1.,. in respect of nine calls, .that is to say, seven calls of 21. 10s. each, and two calls:of 51. each, upon each-'of the said shares;. whereby an action had accrued to the said company, by virtue of the "Companies clauses consolidation act, 1845," 8 & 9 Viet. -k. 16, and the " Cork and Bandon Eailway act, 1845,:' 8 & 9 Viet. c. cxxii.; but the defendant had not paid the same or any part thereof: And also for money payable by the: defendant to the said company for interest upon, and for the forbearance at: interest by the said. company to the defendant, at his request, of moneys owing from the defendant .to the said .company: And for:money found to be due from the .defendant to the said company on an account stated between them:. And the said-company, claim 15001. The declaration was delivered on the 1st of April last; and the. defendant, being under terms to plead issuably, on the llth obtained an order from Platt, B., to plead several matters, which in.the abstract annexed:to the order were.described as follows : -"First, never indebted. Second, statute of limitations. Third, that the defendant was not the holder of the shares. Fourth, that the shares..were forfeited, and sold, for non-payment of the calls, and the plaintiffs received from the proceeds of the sale sufficient to pay the calls, interest, and expenses." . . [619] On the 12th of April, the following pleas were delivered:- First,-that the defendant never was indebted as alleged. Secondly, ^that the. action is upon contracts without specialty, and the alleged causes of action did not, nor did any or either of them, accrue within six years before this suit. Thirdly,-that the defendant was not, at the time of the making of the said calls, or at any or either of such times, the holder- of the said shares in .the said company, or of any or either of them, as alleged. Fourthly,-that, after the defendant became indebted to the said company for the said calls, the said shares were duly declared forfeited,, and that the said forfeiture was confirmed, and that the said forfeited shares were duly sold by the said company, and that the said company received the money produced by the said sale, and that the said money so received was sufficient to pay the said calls, and all arrears of calls then due on the said shares, and the interest thereon due at the time of the said sale, and the expenses attending the declaration of forfeiture and sale thereof; and that the interest claimed in the declaration, is the said interest on such calls; and that the money found to be due upon accounts stated is the amount of such calls and interest. On the 18th qf April, the plaintiffs signed judgment. On the 19th, the defendant's attorney took out a summons calling upon the plaintiffs' attorney to shew cause why the judgment should not be set aside for irregularity, upon the ground that it had been signed after pleas pleaded. This summons was heard before Maule, J., on the 20th, and dismissed, with costs, on the ground that the second plea was not issuable. Upon an affidavit of these facts, ,and of merits,. [620] Udall, on a former day in this term, obtained a rule nisi to set aside the judgment, and to rescind the order, of Maule, J. He referred to The Tobacco-Pipe Makers' Company v. Loder, 20 Law J ourn., N, S., Q. B, 414, where it was held, that an action of debt for a penalty due under a bye-law made by virtue of a charter, is " an action of debt grounded, upon a contract without specialty," and is barred by the 21 Jac. 1, c. 16, s. 3, if not commenced within: six years - after the penalty becomes due. .-; . ..-,'. 13 C. B.621, THE CORK AND BANDON RAILWAY CO. V. GOODE 1343 Byles, Serjt., and Beasley, now shewed cause. This is an action of debt founded upon the 26th section of the "Companies clauses consolidation act, 1845," 8 & 9 Viet. c. 16, which enacts, that, " in any action or suit to be brought by the company against any shareholder, to recover any money due for any call, it shall not be necessary to set forth the special matter, but, it.shall be sufficient for the company to declare that the defendant is the holder of one share or more in the company (stating the number of shares), and is indebted to the company in the sum of money to which the calls in arrear shall amount, in respect of one call or more upon one share or more (stating the number and amount of each of such calls), whereby an action hath accrued to the company, by virtue of this and the special act." This is not an action "grounded upon a contract without specialty: " it is an action on a specialty,-a special action upon the statute,-and the true limitation is twenty, and not six years. [Williams, J. It is difficult to see how to reply to this (second) plea: but, can you sign judgment on that ground ?] Not if it be a fair subject of question by demurrer. [Jervis, C. J. The 26th section merely gives a form of declaration.] It begins by creating the liability, and then gives the form of remedy. The case referred to, of The Tobacco-Pipe Makers' Company v. Loder, is quite beside this : that was an action upon a bye-[621]-law, upon which assumpsit might be maintained. The 22nd section, which impowers the company to make calls, creates the liability in the shareholders to pay them. [Jervis, C. J. The same argument would apply to an action against the company for dividends due on stock. Could you say that that would be an action on a specialty? Surely this is not the mode of calling upon us to decide such a question as this. The matter must be palpably plain before we can deprive the defendant of the opportunity of raising the point, properly.] The 3 & 4 W. 4, c. 42, s. 3, it is submitted, would govern this case. That statute limits to twenty years :" actions of debt for rent upon an indenture of demise, or covenant or debt upon any bond or other specialty." [Williams, J. That means " other specialty " ejusdem generis.] The same words are...
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