The London and Bridhton Railway Company v G. F. Fairclough
| Jurisdiction | England & Wales |
| Judgment Date | 26 April 1841 |
| Date | 26 April 1841 |
| Court | Court of Common Pleas |
English Reports Citation: 133 E.R. 916
IN THE COURT OF COMMON PLEAS
S. C. 3 Scott, N. R. 68; 2 Railw. Cas. 544; 10 L. J. C. P. 133. See Cochrane v. Moore, 1890, 25 Q. B. D. 62.
674] the london and brighton railway company v. G. F. fairclough. April 20, 22, 26, 1841. [S. C. 3 Scott, N. E. 68; 2 Railw. Cas. 544; 10 L. J. C. P. 133. See Cochrane v. Moore, 1890, 25 Q. B. D. 62.] By their act of incorporation, a railway company are required to cause the names of the several corporations, and the names and additions of the several persons, who shall be or become entitled to shares in the undertaking, with the number of shares they are respectively entitled to, and the amount of the subscriptions paid thereon, and the proper number by which each share shall be distinguished, to be entered in a book to be kept by the company; and after such entry made, to cause their (a)1 That a bad special inducement to a traverse makes the whole pleading demur-rable, though the traverse itself be well taken, see Foden v. Haines, Comberb. 245, Carthew, 300; Johnson v. Emoe, Cro. Car. 265 ; Dike v. Ricks, ib. 335, W. Jones, 327, 1 Roll. Abr. 329, Com. Dig. tit. Pleader, (G. 20); 5 Bac. Abr. (5th & 6th ed. 399); tit. Pleas and Pleading (H. 5). (6)1 This would have been the form of the traverse; and the inducement, if any were used, should have been in unison with such traverse. (of Vide Wynne v. Wynne, ante, 8, 2 Scott, N. R. 278, 9 Dowl. P. C. 901. (Vf A creditor who executes a composition deed, in which the amount of his debt is left in blank, binds himself to the extent of all his existing claims against the insolvent, although the deed refer to " sums set opposite the names " of the executing parties; Harrhy v. Wall, 2 Stark. N. P. C. 195. And a rule nisi to set aside a nonsuit, which Lord Ellenborough had directed, was refused; 1 B. & Aid. 103. And see Holmer v. Finer, 1 Esp. N. P. C. 132; Hancock v. Clay, 2 Stark. N. P. C. 100; Daniel v. Satmders, 2 Chitt. Rep. 564; Hudson v. Eevett, 5 Bingh. 368; 2 M. & P. 663; Beay v. Richardson, 2 C. M. & R. 422, 1 Gale, 219; Acton v. Woodgate, 2 Mylne & Keene, 492, 2 MAN. &G. 674. LONDON AND BRIGHTON RLY. CO. V. FAIRCLOUGH 917 common seal to be affixed thereto. They are further required to enter and keep, in some book to be provided for that purpose, a true account of the names of the several corporations, and of the names and places of abode of the several persons, who shall be so entitled. The act provides that in order to prove that a defendant is proprietor of the shares in respect of the calls upon which he is sued, the production of the books in which the company are directed to enter and keep respectively the names and additions of the several proprietors of shares in the undertaking, with the number of shares they are respectively entitled to, and an account of the names of the several corporations, and of the names and places of abode of the several persons, who shall, from time to time, be entitled to shares in the undertaking, shall be prima facie evidence that such defendant is a proprietor, and of the number and amount of his shares : Held, that in order to shew proprietorship under the last-mentioned enactment, it is incumbent on the company to produce, as well the book required to be kept by the first, as that required to be kept by the second, of the above clauses; but that provided the name and addition of the defendant are properly described, it will be no objection to the sufficiency of the evidence, that the additions of other proprietors are omitted.-Where a clause in an act empowering directors of a railway company to make calls, requires twenty-one days' notice to be given of every call, by advertisement, and directs that moneys so called for, shall be paid to such persons, and at such times and places, as in such notice shall be appointed; and the act directs that at the trial of any action for a call, it shall only be necessary to prove that the defendant was a proprietor of such share or shares in the undertaking as such action is brought in respect of, or some one such share, and that such notice was given, as directed by the act, of such call having been made, without proving the appointment of the directors, or any other matter; it is sufficient to state the place and the time of payment, in the advertisement, without noticing either, in the resolution for making the call, such statement being made with the previous or subsequent assent of the directors; which assent will be presumed.- A railway act makes the shares transferable by deed, and directs that on every sale, the deed being executed by the seller and the purchaser, shall be kept by the company, or by the secretary or clerk of the company, who shall enter, in some book to be kept for that purpose, a memorial of such transfer and sale, and indorse the entry of such memorial on the deed of sale or transfer; and that until such memorial shall have been made and entered, the seller shall remain liable for all future calls, and the purchaser shall have no part or share in the profits : Held, that in order to shew a party sued for calls, to be a proprietor under such a deed of transfer, it is not necessary to prove that a memorial of the transfer has been entered.-The deed of transfer was executed by A. the seller, with the name of B. inserted as the purchaser; before any execution of the deed by B., it was arranged that C. instead of B. should be the purchaser ; whereupon the name of B. being struck out and that of C. substituted, A. re-executed the altered deed : Held, that the deed was so far complete as between A. and B. that it could not operate as a conveyance to C. without a new stamp. Quaere, whether it might have been shewn that B.'s name had been inserted by mistake.-A railway act authorizes the directors to sue for calls, or to declare the shares belonging to any person or corporation refusing or neglecting to pay, to be forfeited, and to order the same to be sold; provided nevertheless, that no advantage shall be taken of any forfeiture of shares until notice in writing given, nor until the declaration of forfeiture shall have been confirmed at a general or special general meeting of the company after which requisites have been complied with, the company are authorized to sell the shares so forfeited. It was admitted, (infra, 689, 690) that a declaration of forfeiture by the directors, with such notice in writing, is, without such confirmation, no defence to an action for calls.-A railway act authorizes the company of proprietors to recover, in an action of debt, what shall be due for calls, including interest on such calls. It was admitted (infra, 690), that interest was recoverable (c) under a count for calls (the damages laid being sufficient to cover the amount) without a count for interest.-A railway act requires that the proceedings of all meetings shall be entered in some book, and signed by the chairman of such (c) Qusere, as a statutory addition to the debt demanded, or as damages for the detention. Vide post, 684, 685. 918 LONDON AND BRIGHTON RLY. CO. V. FAIECLOUGH 2 MAN. & G. 675. respective meetings. Signature at a subsequent meeting,-at which the minutes of the former were read over and confirmed,-by a person who was chairman at both meetings, was admitted (infra, 686) to be sufficient. Debt, for 2701., the amount of two calls of 31. each per share, on forty-five shares, of which the defendant was alleged to be the proprietor. The declar-[675]-ation laid the damages for the detention of the debt, at 501. Pleas: first, nunquam indebitatus; secondly, a traverse of the proprietorship of the shares, or of any of them : concluding to the country. At the trial, before Tindal C. J., at the sittings at Guildhall, after Hilary term, 1840, the plaintiffs, in order to prove the affirmative of the second issue, called their clerk, who produced a book which he stated to be The sealed register of the proprietors, which the wit-[676]-ness said was the book kept at the office of the company for entering the names and additions of the proprietors of shares. One portion of the book was stated to have been written three weeks before the first general meeting of the proprietors in January 1838, and the remainder, three weeks before the second meeting of the proprietors in July 1838, each portion of the book purporting to contain the names of all the shareholders at the time,-the end of each list being sealed with the plaintiffs' common seal. In that book the defendant was registered as the owner of 105 shares. It was contended, on the part of the plaintiffs, that this was sufficient proof of ownership under the 140th, the 142d, and the 148th sections of the London and Brighton railway act (a). By the first of those sections the company are required, at their first or some subsequent general meeting, and afterwards, from time to time, to cause the names of the several corporations, and the names and additions of the several persons, who shall then be, or who shall from time to time thereafter become, entitled to shares in the said undertaking, with the number of shares which they are respectively entitled to, and the amount of the subscriptions paid thereon, and also the proper number by which every share shall be distinguished, to be fairly and distinctly entered in a book to be kept by the said company, and, after such entry made, to cause their common seal to be affixed thereto. By the 142d section the company are required, in some proper book to be provided by the company for that purpose, to enter and keep a true account of the names of the several corporations, and of the names and places of abode of the several persons, who shall, from time to time, be entitled to [677] shares in the undertaking. The 148th section contains a provision that in any action to be brought by the company against any proprietor of any share in the undertaking...
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The West London Railway Company against Bernard
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