May, 1856, and upon the ground, as stated, by Lord Campbell, Ch. J., that "if the company were bound to register this deed, they must become the custodians of it, and must incur great responsibility as to its safe custody, and that therefore convenience requires that they should only be bound to register mere transfers, passing the legal title, and showing who is the legal owner of the shares."2

4. But a mandamus to compel the registry of the transfer of shares in a railway company to an infant,3 was denied. And the court of equity declined to interfere to compel the registry of the transfer of shares when the company are denied the opportunity of inspecting the certificates by their directors.4

5. The more effectual, and at present the more usual, remedy against corporations for refusing to allow the transfer of stock upon their books into the name of the real owner is by bill in equity. And in one case, where the party whose stock had been allowed by the bank to be transferred into the names of those who had purchased it under forged powers of attorney sought redress by an action at law, the court said, "We cannot do justice to this plaintiff unless we hold that the stocks are still his," and therefore denied the action for the value of the stocks, but allowed a

2

* Regina v. General Cemetery Co., 36 Eng. L. & Eq. 126.

Reg. v. Mid. Counties & Sh. Junction Railw. Co., 9 Law T. N. S. 151. But the practice of compelling the registry of transfers, by mandamus, seems well established, even where they are not of a character to induce the most favorable consideration, as where it was a transfer to a pauper to enable the transferror to get rid of liability, it being intended to be out and out, with no secret trust for the transferror. Reg. v. Same, Id. 151. The transfer of shares for special purposes is so frequent, and the motives and occasions are so various, that it could not be expected to give an abstract of all the cases. As a general rule, one who understandingly consents to have shares transferred in his name upon the public registry of shares, must be content to assume all the responsibility towards the public and the other shareholders not connusant of the special contract, which any other shareholder would incur. But as between the company and the purchaser there may be special grounds of relief. Coleman ex parte, 1 De G. J. & Sm. 495; Grady ex parte, Id. 488; Barrett ex parte, 10 Jur. N. S. 711; Saunders ex parte, Id. 246.

Any transaction of this kind will not be disturbed, after considerable lapse of time. Spackman ex parte, 10 Jur. N. S. 911; Lane ex parte, Id. 25; Spackman ex parte, reversed, 11 Jur. N. S. 207.

* East Wh. M. M. Co. in re, 33 Beav. 119.

recovery for the dividends which had been declared after the transfer.

6. And there is the same difficulty in compensating the purchaser of stocks, where a transfer on the books has been denied in an action at law. In some cases this has been attempted to be done by allowing the party to recover the highest market price of the stock between the refusal to transfer and the trial. But the only rule at all analogous to settled principle seems to be that the corporation shall pay the value of the stock at the date of their refusal to transfer it, as that is the time when the corporation became in default, and when by said default the stock, as between the parties, became theirs.5 The question of the effect of forged and fradulent transfers is very ably discussed by the court of Chancery Appeal in Tayler v. Great Indian Peninsular Railway.6

SECTION XII.

When Calls become Perfected.

1. Calls are made when the sum is assessed, | 4. The manner of giving notice and of notice may be given afterwards. proof.

2, 3. Directors the proper authority to make

calls.

§ 43. 1. The English statute of 1845, called the Companies Clauses Consolidation Act, requires all calls to be paid before any valid transfer can be made. Under this statute, and similar provisions in special charters, it has often been made a question, when a call may be said to be made. It seems to be considered that the word call, in this connection, may refer to the resolution *of the directors, by which a certain sum is required to be paid to the company, by the shareholders,1 or secondly to the notice to

6

5 Pinkerton v. M. & L. Railw., 1 Am. Law Reg. N. S. 96; s. c. 42 N. H. R. 424. 5 Jur. N. S. 1087; s. c. 4 De G. & J. 559. See post, § 193, pl. 12. And see Building Association v. Sendemeyer, 50 Penn. St. 67.

1 Ex parte Tooke, In re The Londonderry and Coleraine Railw. Co., 6 Railw. C. 1 (1849); North American Colonial Association of Ireland v. Bentley, 19 L. J. (Q. B.) 427; 15 Jur. 187.

A resolution of the board of directors requiring the stockholders to pay an in

the shareholders of the assessment, and the time and place at which they will be required to make payment, and the amount to be paid. But it seems finally to be settled, that the company are not obliged to regard any transfer, made after the resolution of the directors, making the assessment, which need not specify the time of payment, but that may be determined, by a subsequent act of the board.2

2. It seems the directors, and not the company, are the proper parties to make calls, under the English statutes.

3. This seems to have been decided upon the general ground of the authority of the directors.3

stalment of ten per cent every thirty days, on all cash subscriptions, until the whole is paid, and that due notice thereof be given, is admissible evidence of calls for the whole subscription. It was here considered that the words "month," and "thirty days," used in different portions of the act, must be considered of the same import. Heaston v. Cincinnati & C. R. R., 16 Ind. R. 275; Sands v. Sanders, 26 N. Y. R. 239.

2 Great North of England Railw. Co. v. Biddulph, 2 Railw. C. 401; s. c. 7 M. & W. 243; Newry and Enniskillen Railw. Co. v. Edmunds, 5 Railw. C. 275; s. c. 2 Exch. 118, 122. Parke, B., in The Ambergate, &c., and Eastern Junction Railw. Co. v. Mitchell, 6 Railw. C. 235; s. c. 4 Exch. 540; Regina v. Londonderry & Coleraine Railw. Co., 13 Q. B. 998.

Unless there is something in the subscription, or the charter and by-laws of the company requiring notice of calls, or making the subscription payable upon calls, it is said in Lake Ontario A. & N. Y. R. v. Mason, 16 N. Y. Court of Appeals, 451, that it is not indispensable that notice of calls should be given the subscribers before suit. But this seems contrary to the general course of decision upon the point, and somewhat at variance with the idea of a call, or assessment upon subscriptions to stock. And such seems to be the general understanding of the rule in the American courts. But these questions will depend very much upon the special provisions of the statutes, in the different states, by which the matter is controlled, and somewhat upon the special terms of the contract of subscription. Heaston v. Cincinnati & C. R. R., 16 Ind. R. 275. Thus, in the present case it was held the general railroad law of Indiana did require notice and a personal demand before proceeding to forfeit the stock, but not before suit to recover instalments; that as to calls the statute required the subscribers to take notice of the action of the directors. It is further said, that where the articles of association or the preliminary articles of subscription, or both combined, contain an undertaking to pay the amount subscribed on certain terms and conditions, an action will lie to enforce the stipulations upon proof of the subscription and the performance of the conditions.

* Ambergate, N. & B. & Eastern Junction Railw. Co. v. Mitchell, 4 Exch. 540. Pollock, Ch. B. "The next objection is, that the directors made these

4

and 4. The question of what shall amount to a good call, how the same may be shown in court, is considerably examined in Miles v. Bough. It is here decided, that no person could be sued for nonpayment of a call till he had received due notice thereof, although the statute did not require notice in express terms: that an order to pay the money at a given broker's was a good call; that in the declaration it was sufficient to allege that the calls were made and the defendant duly notified, without further specification of particulars; and that the jury may infer sufficient notice from the fact of an express promise to pay, notwithstanding it appeared that a defective notice had been sent, unless it appeared that was the only notice given, when the case must be decided upon the sufficiency of the notice in fact given.

SECTION XIII.

Transfer by Death, Insolvency, or Marriage.

1. Mandamus lies to compel the registry of | 4. Notice requisite to perfect the title of mort

§ 44. 1. The title to shares in a railway is liable to transfer by the death, bankruptcy, or insolvency of the proprietor, or by * marriage of the female owner of such shares. In such case the English statute requires a declaration of the change of ownership, to be filed with the secretary of the company, and the name of the new owner is thereupon requiried to be entered upon the calls; but they were competent to do so, as they may do all things, except such as are to be done by the shareholders at a general meeting; and there is nothing in the act which makes it necessary that the company should make calls at a general meeting."

Parke, B. "The directors may exercise all the powers of the company except those which are to be exercised by the company at their general meeting, and the power of making calls is not such a power as is required to be so exercised."

* 3 Q. B. 845. Defective notice by publication is not aided by personal notice of a shorter time. Sands v. Sanders, 26 N. Y. R. 239.

register of shareholders.

A mandamus will lie to compel the

clerk to make the proper entry in such case.1

2. These incidents are so much controlled by local laws, in different jurisdictions, that it would scarcely comport with our object to state more than the general principles affecting them. In most of the United States all property, (especially personal estate, as railway shares,) in the first instance, upon the decease of the proprietor vests in his personal representative, in trust, first for the payment of debts, and afterwards for legatees, or in default of them, the heirs of such proprietor.

3. And so far as regards voting upon such shares, the title of the executor or administrator will ordinarily be sufficient. Before the name of the executor or administrator is entered upon the books of the company, as a shareholder, the estate only could be held liable for calls probably, and perhaps the same rule of liability would obtain after that.2 But in general where shares in a joint-stock company are bequeathed specifically, the legatee takes them subject to all future calls. But where the payment of future calls is indispensable to bring the shares into the state in which the testator regarded them in his will, such calls should be paid by the estate.

4. In case of death or insolvency, the title of a mortgagee first notified to the company, will commonly have priority.5 Notice to the company is necessary to perfect the title of a mortgagee, in case of bankruptcy or insolvency.6

1 Rex v. Worcester Canal Company, 1 M. & R. 529.

Fyler v. Fyler, 2 Railw. C. 873, s. c. 3 Beav. 550; Jacques v. Chambers, 4 Railw. C. 499. But the administrator or other personal representative of a deceased shareholder, may, under the recent English statute, the Common-law Procedure, maintain an action against the company for refusal to register his name, as successor, to the title to the shares, and after having recovered damages, he is entitled to a mandamus to compel the company to register his name. is also entitled to the prerogative writ of mandamus in such cases at common law. Norris v. The Irish Land Co., 30 Law Times, 132.

He

3 Blount v. Hipkins, 7 Sim. 43, 51; Jacques v. Chambers, 2 Coll. 435; Clive v. Clive, Kay, 600; Wright v. Warren, 4 De G. & Sm. 367; Adams v. Ferick, 26 Beav. 384.

Armstrong v. Burnet, 20 Beav. 384.

5 Cumming v. Prescott, 2 Yo. & Coll. Eq. Exch. 488.

* But where all parties are partners, notice will sometimes be implied. Ex