when he first became the holder of the shares, and at
the time of his making the contracts by force of which
the debts, causes of action, and liabilities in the decla-
ration mentioned accrued to the plaintiff, and were in-
curred by the defendant, and at the time of his making
and entering into the contracts by force of which the
plaintiffs claimed to be entitled by law to make the call
upon the defendant as in the declaration alleged, the
defendant was an infant within the age of twenty-one
years: the plaintiffs replied, that the defendant, at the
time when he first became holder of the shares, and at
the time of his making the contracts in the plea men-
tioned, was of the full age of twenty-one years. It ap-
peared at the trial, that the defendant was the purchaser
of the shares in question whilst he was an infant, and
that, after he was of full age, a call was made: and it
was held, that the term "contract" meant, the contract
by which the defendant became a shareholder, and not
the obligation to pay the calls under the 8 & 9 Vict.
c. 16, s. 21, and consequently, that the plea was proved
by evidence of his infancy at the time of the transfer to
him of the shares. Parke, B., there says: "The ques-
tion whether the plea was proved, depends upon the term
'contract' in the plea. If it means the 'contract' by
which he acquired the shares from his vendor, there is
no doubt he was then an infant, as well as at the time
when he became a holder of the shares, and consequently
the plea was proved. If, on the other hand, the term
'contract' means the obligation to pay the calls created
by the special act establishing the railway, and the 8 & 9
Vict. c. 16, that obligation did not arise until the time
fixed for the payment of the call, and then the defendant
was of full age, and the plea was not proved. We think
that this obligation created by statute, cannot be described
as a 'contract,' and consequently that the meaning of
the plea is, that he was an infant when the contract was

made by which he became a shareholder; and, in that sense of the word, the plea was proved, and the rule must therefore be absolute to enter a verdict for the defendant. Whether the plea is an answer to the action, the word 'contract' being so construed, is a question which we need not now consider." In Talory v. Jackson, Cro. Car. 513, it was held that the 21 Jac. 1, c. 16, did not extend to an action of debt upon the 2 & 3 Ed. 6, c. 13, for not setting out tithes, because it was founded upon a specialty. So, in Jones v. Pope, 1 Saund. 36, it was held that debt for an escape of one in execution, is not within the statute of limitations, 21 Jac. 1, c. 16, for, at common law, no action of debt lay against a gaoler for an escape out of execution. So, here, the action. is based solely upon the statute. [Jervis, C. J. The analogy of those cases is not quite perfect: but for the 1 Ric. 2, c. 12, debt would not have lain for the escape; and, but for the statute 2 & 3 Ed. 6, c. 13, no action would have lain for not setting out tithes.] So, here, the defendant would not have been suable in this form for not paying calls, but for the statute. [Maule, J. You say that the facts stated here do not shew any contract, except for the statute?] Exactly so. The defendant becomes bound by the statutory contract,-a record of the highest nature: and a duty is imposed upon him by the statute, for the breach of which the special form of remedy is given. The liability is created by, and altogether founded on, the statute. That an action on a statute is an action upon a specialty, is clear from Bac. Abr. Limitation of Actions (D. 3.), and Com. Dig. Temps. (G. 15). In the case of The Tobacco-Pipe Makers' Company v. Loder, 16 Q. B. 765, the action was upon a bye-law; the observations of Patteson, J., shew, that, if the action had been upon the charter, the decision would have been different. [Maule, J. The bye-law became obligatory on the defendant, not by

1853.

THE CORK

AND BANDON RAILWAY Co.

v.

GOODE.

1853.

THE CORK

virtue of the charter, but by virtue of the act of parliament which made them binding.] By demurring, AND BANDON the plaintiffs do not admit the allegation in the plea that the action is upon contracts without specialty, inasmuch as the court can see that it is an action founded upon the statute.

RAILWAY Co.

V.

GOODE.

Udall, contrà. (a) The plea is good. The liability to pay calls is a liability on a contract without specialty. Either assumpsit or case would lie. An action upon a statute is a totally different thing. A man may become a shareholder in a variety of ways,—as, by subscribing towards the funds of the company before the act of parliament is obtained, by becoming an allottee, or by buying shares in the market, or by bequest, or marriage, &c. The 3rd section of the special act, 8 & 9 Vict. c. cxxii, shews, that, at the time the act passed, the whole capital had not been subscribed for. The 7th section of the 8 & 9 Vict. c. 16, makes the shares personal estate. In The Great North of England Railway Company v. Biddulph, 7 M. & W. 243, in an action by a railway company for calls, the declaration alleged that "the defendant subscribed for a large sum of money, to wit, 50007., towards the undertaking mentioned in the act," &c. The company were impowered by the 3rd section of their act, 6

(a) The points marked for
argument on the part of the
defendant, were,—
66 That the
liability of the defendant to the
plaintiffs to pay the calls men-
tioned in the first count, is
founded upon a contract be-
tween them, and, unless that
contract is by deed, it is a con-
tract without specialty; that it
is not stated in the declaration
that any deed was executed;
that the fact of there being a

deed is negatived by the plea; that the cause of action is not founded on any statute, though it is in some measure regulated by statute; that a statute is not a specialty within the meaning of the statute of limitations; that a contract regulated by statute is not a specialty contract; and that, if the action is founded upon statute, the period of limitation is two years."

& 7 W. 4, c. cv, to raise 1,000,000l. for constructing and maintaining the railway, and by the 195th section it appears that 660,0007. had been subscribed for by several persons, under a contract binding themselves and their heirs, before the passing of the act. A motion having been made in arrest of judgment, on the ground that the declaration should have alleged a subscription by deed,—it was held, that the declaration was good after verdict; and the court also inclined to think it would have been good on special demurrer. In The Sheffield, Ashton-under-Lyne, and Manchester Railway Company v. Woodcock, 7 M. & W. 574, it was held, that a transfer of railway shares from an original subscriber to the undertaking made before the formation of a register of proprietors pursuant to the act, but after the passing of the act, is good, although the transferror be never registered as a proprietor. No deed is ever signed between the shareholders and the company. [Cresswell, J. What is the contract between the shareholders and the company? When is it made? and how? By writing, by word of mouth, or by instrument under seal? Maule, J. Where is the shareholder's undertaking to pay calls but for the statute?] It must be conceded that there is [Maule, J. Then he undertakes by the statute. Is an action brought upon that undertaking, an action upon a contract without specialty?] It is submitted that it is. In The South Staffordshire Railway Company v. Burnside, 5 Exch. 129, Parke, B., says: "The statute which enables the company to recover calls, no doubt, merely enforces an obligation on the shareholders, created by contract. If the defendant contracted with the company to take twenty shares, upon each of which the capital to be contributed was 207., he may be said to have agreed with them to pay 20l. per share by such instalments as, according to the statute, they were entitled to require." If, then, shares may be obtained by a parol

none.

1853.

THE CORK

AND BANDON RAILWAY CO.

v.

Goode.

1853.

THE CORK AND BANDON RAILWAY Co.

V.

GOODE.

contract, this is an action founded upon a contract without specialty. Where a statute impowers parties to do a certain thing, and the thing has been done, assumpsit will lie. Thus, in Bell v. Burrows, Bull. N. P. 129, a private act of parliament gave power to commissioners to divide common fields, and to make such orders and regulations as they should think fit; they awarded that all proprietors of land allotted to them which had been ploughed or manured since any corn had been reaped, should pay to the person who had manured or ploughed it, 4s. an acre,—it was held, that general indebitatus assumpsit would lie. So, in Rann v. Green, Cowp. 474, assumpsit was brought to recover money due to the plaintiff as vicar of a parish in Coventry, pursuant to an order made by the lord chancellor and the chief justices of the King's Bench and Common Pleas, agreeably to the directions of a private act of parliament concerning tithes, passed in the 4 & 5 P. & M. c. 5. [Maule, J. Assumpsit was brought, and the defendant did not object to it. That case is an instance, but no authority.] Lord Mansfield said: "The action, which is an action of assumpsit, is brought in consequence of a right liquidated by means of the statute. The statute, therefore, is the only ground of action. Without it, we had no authority to make the order we did: but, when the order was made, the law raised an assumpsit." So, in Peck v. Wood, 5 T. R. 130, assumpsit was maintained for a moiety of the expense of a party-wall, under the buildingact, 14 G. 3, c. 78, s. 41. Here, no action lies against a party merely in consequence of his being a shareholder in the company: to render him liable, the directors must make a call (8 & 9 Vict. c. 16, s. 22), and that is no specialty. Upon the authority of these cases, and of Com. Dig. Action upon Statute (E), it is laid down in 1 Chitty on Pleading, 7th edit. p. 118, that, "though a statute may in some respects be considered as a specialty,