1849. NESS v. ARMSTRONG. had received a dividend which accrued due after the testator's decease, yet that was to be coupled with the fact that he had not otherwise caused himself to be made a member. This excludes the notion of any inference to be deduced from the receipt of dividends, beyond the bare fact of the receipt itself. And this being so, the case is undistinguishable in principle from Ness v. Angas, decided immediately before the argument in the present case. There we held, that the husband of a female shareholder, who had not made himself a member by complying with the provisions of the deed, was not liable to an execution under the 7 Geo. 4, c. 46, s. 13, as a member for the time being; and the same principle precisely applies to the case of the executor of a deceased shareholder. The rule for a nonsuit must therefore be made absolute. Rule absolute. May 28. To an action for calls on rail way shares, the defendant pleaded (by at- the making of the calls, he was an infant; and also, that at the time he became the holder of the shares, he was an infant:Held, that the pleas were bad, it not appearing that he be THE LEEDS AND THIRSK RAILWAY COMPANY V. DEBT. The first count of the declaration stated, that the defendant is the holder of divers, to wit, ten shares in the said Company, and is indebted to the Company in 300%. in respect of a certain call of, to wit, 5l. upon each of the said shares, and of a certain other call of, to wit, the sum of 21. 10s. upon each of the said shares (the declaration stated in the same form five other calls); whereby an action hath accrued to the Company by virtue of the Companies Clauses Consolidation Act, 1845, and the Leeds and Hartlepool Railway Act, 1846.—Breach, nonpayment. came a shareholder by contract, and avoided it; also, that the Court could not infer, from his appearance by attorney, that he was of full age. The defendant, who appeared by attorney, pleaded, thirdly, as to so much of the first count as relates to the defendant being indebted to the Company for and in respect of five of the said calls, and as to the alleged debt and causes of action in that count mentioned as to those calls, the defendant says, that at the time of the making of those five calls, and each of them, and of the contracting of the said debt in respect of the same, he the defendant was an infant within the age of twenty-one years, to wit, of the age of twenty years.-Verification. Fourthly, as to so much of the first count as relates to the defendant being indebted to the Company for and in respect of two of the said calls, being the remainder of the said seven calls, and being other than the said five calls in the plea thirdly above mentioned, and as to the causes of action in that count mentioned as to those two calls, the defendant says, that at the time of his becoming and being holder of the said shares for and in respect of which those two calls were made, and of the contracting of the said debt in respect of those two calls, he the defendant was an infant within the age of twenty-one years, to wit, of the age of twenty years.-Verification. Special demurrer to both pleas, assigning for causes, that they are pleaded to a supposed contract made between the plaintiffs and the defendant, whereas no such contract is alleged to have been made; and that it is uncertain what is meant by the contracting in the pleas mentioned; and that the pleas do not sufficiently confess and avow the said portion of the first count; that they do not shew with sufficient certainty why the defendant should not pay or is not indebted for the calls made in respect of shares of which he was the holder; that they do not deny with sufficient certainty that the defendant is the holder of the shares, or was such holder before or at the times of making the calls.-Joinder in demurrer. 1849. LEEDS AND THIRSK RAILWAY Co. ข. FEARNLEY. 1849. LEEDS RAILWAY Co. ข. FEARNLEY. Cowling argued in support of the demurrer, in the sittings after last Hilary Term (February 20).—This declaration AND THIRSK is in the general form given by the 26th section of the Lands Clauses Consolidation Act, 8 & 9 Vict. c. 16, and the defendant, who appears by attorney, does not deny that he was the holder of shares, but merely alleges, that at the time of making the calls, and of his becoming a shareholder, he was an infant. This case is distinguishable from that of The Newry and Enniskillen Railway Company v. Coombe (a), inasmuch as here it is not alleged that the defendant became a shareholder by reason of his having subscribed for the shares, and that he afterwards repudiated the contract; so that, for aught that appears, he may have become a shareholder by act of law. It is clear from the 79th section, that an infant may be a shareholder; and, so long as he holds the shares, he will be liable for the calls, unless there is something in the Act to exonerate him. The maxim "Transit terra cum onere" applies. The plaintiffs are under an obligation to complete the railway, and might be compelled to do so by mandamus. In Bac. Abr. tit. "Infancy," (F)., instances are collected "of what things an infant is capable, being for his own advantage;" from which it is clear, that where he has the enjoyment of property he must sustain the burthen attending it. Evelyn v. Chichester (b) is an authority to the same effect. would seem, from the case of Rex v. Sutton (c), that an infant inheriting land charged with repair of a bridge, would be liable to indictment for non-repair. The language of the 22nd section of the 8 & 9 Vict. c. 16 is very comprehensive, and renders every shareholder liable for calls. If an infant were exempt, his shares could never be forfeited under the 29th section, for in no sense could he be said "to fail to pay any call payable by him." He would also (a) 3 Exch. 565. (b) 3 Burr. 1717. (c) 3 A. & E. 597. It be exonerated from the execution to which shareholders are liable under the 36th section. By sect. 18, the Company are obliged to register any infant to whom shares have come by act of law; and can it be said that in such case he would not be liable for calls? The 79th section expressly provides for the case of an infant voting. Suppose an infant married a female shareholder, would not the shares vest in him? If not, no effect could be given to the 14th section, which enables shareholders to transfer their shares. In Corpe v. Overton (a), the authorities are collected, and, according to the note of Wilmot, J., there cited, Lord Mansfield, in his judgment in The Earl of Buckinghamshire v. Drury (b), said, “If an infant pays money with his own hand, without a valuable consideration, he cannot get it back again." [Parke, B. -In Manby v. Scott (c), Hyde, J., says, "If an infant give or sell goods, and deliver them with his own hand, he shall have no action of trespass against the donee or vendee by reason of the delivery; but if an infant give or sell goods, and the vendee or donee take them by force of the gift or sale, the infant may have an action of trespass against him."] The present case is not distinguishable from that of The Cork and Bandon Railway Company v. Cazenove (d). Prentice, contrà.-This case no doubt differs from The Newry and Enniskillen Railway Company v. Coombe (e), inasmuch as there the plea stated that the defendant became a shareholder by contracting and subscribing for the shares, and that he afterwards repudiated the contract. This plea, however, is more correct in form. In the case of an action for goods sold and delivered, the plea merely states that the defendant was an infant at the time of the con (a) 10 Bing. 252. (c) 1 Mod. 137. (6) Wilmot's Notes of Opinions and Judgments, 177. (d) 11 Jur. 802. (e) 3 Exch. 565. 1849. LEEDS AND THIRSK RAILWAY CO. บ. FEARNLEY. 1849. LEEDS AND THIRSK RAILWAY Co. v. FEARNLEY. tract, and it is matter for replication that he affirmed it after he became of age: Cohen v. Armstrong (a). The form of plea is similar in an action on a bond or deed (b). In Williams v. Moor (c), the only doubt was whether the fact of ratification should be replied or new assigned. [Parke, B.-This is not the ordinary case of a contract by an infant, but a purchase of shares, by which he acquired a property in the possible profits of the concern. Now, according to Ketsey's case (d), and what is more distinctly laid down by Dodderidge, J., in Kirton v. Eliott (e), he would be liable, unless he repudiated; then ought not the plea to aver that fact?] Primâ facie infancy is a bar to any claim or contract. A call is nothing more than a statutory contract between the Company and the shareholders; and, even admitting that an infant may purchase shares, still he is not liable on a contract arising out of the possession of them. If an infant purchased a lease, would he be liable on the covenants contained in it? [Parke, B.-According to Ketsey's case (d), he ought to disavow before the rent is due; if not, he must pay what the law considers a compensation for the previous holding.] The plea in effect amounts to a repudiation. Evelyn v. Chichester(ƒ) was the case of a copyhold fine. Rex v. Sutton (g) proceeded on the principle, that an infant is liable to the criminal law like any other individual. Cowling, in reply.--The general rule, that a plaintiff must reply matter rebutting the effect of a plea of infancy, is not applicable to this case; for the action is not on a contract, but depends upon the provisions of an Act of Parliament. The Company has no power to reject an infant share (a) 1 M. & S. 724. (b) 3 Chit. Plead. 177, 7th edit. (c) 11 M. & W. 256. (d) Cro. Jac. 320. (e) 2 Bulst. 69. (f) 3 Burr. 1717. (g) 3 A. & E. 597. |