8 VICT. Cap. 17. [20] together with such declaration, be produced to the secretary; and upon such production in either of the cases aforesaid the secretary shall make an entry of the declaration in the said register of transfers. XXI. Company not bound to regard trusts.-The company shall not be bound to see to the execution of any trust, whether express, implied, or constructive, to which any of the said shares may be subject; and the receipt of the party in whose name any such share shall stand in the books of the company, or if it stands in the names of more parties than one, the receipt of the party first named in the register of shareholders and then surviving, shall from time to time be a sufficient discharge to the company for any dividend or other sum of money payable in respect of such share, notwithstanding any trust to which such share may then be subject, and whether or not the company have had notice of such trusts; and the company shall not be bound to see to the application of the money paid upon such receipt.1 1 See Law of Rlys. p. 107, and cases cited in note (a). [XXI.] [XXII.] [XXIII.] [XXIV.] PAYMENT OF CALLS. And with respect to the payment of subscriptions and the means of enforcing the payment of calls, be it enacted as follows: XXII. Subscriptions to be paid when called for.-The several persons who have subscribed any money towards the undertaking, or their legal representatives, respectively, shall pay the sums respectively so subscribed, or such portions thereof as shall from time to time be called for by the company, at such times and places as shall be appointed by the company; and with respect to the provisions herein or in the special Act contained for enforcing the payment of calls, the word "shareholder" shall extend to and include the legal personal representatives of such shareholder. 1 See Law of Rlys. pp. 105-113, and cases there cited. XXIII. Power to make calls.-It shall be lawful for the company from time to time to make such calls of money upon the respective shareholders, in respect of the amount of capital respectively subscribed or owing by them, as they shall think fit, provided that twenty-one days' notice at the least be given of each call, and that no call exceed the prescribed amount, if any, and that successive calls be not made at less than the prescribed interval, if any, and that the aggregate amount of calls made in any one year do not exceed the prescribed amount, if any; and every shareholder shall be liable to pay the amount of the calls so made, in respect of the shares held by him, to the persons and at the times and places from time to time appointed by the company. 1 As to form and requisites of notice, see Law of Rlys. pp. 104, 105. XXIV. Interest to be paid on calls unpaid.—If, before or on the day appointed for payment, any shareholder do not pay the amount of any call to which he is liable, then such shareholder shall be liable to pay interest for the same at the rate allowed by law from the day appointed for the payment thereof to the time of the actual payment. XXV. Power to allow interest on payment of subscriptions before call.—It shall be lawful for the company, if they think fit, to receive from any of the shareholders willing to advance the same all or any part of the moneys due upon their respective shares beyond the sums actually called for; and upon the principal moneys so paid in advance, or so much thereof as from time to time shall exceed the amount of the calls then made upon the shares in respect of which such advance shall be made, the company may pay interest at such rate, not exceeding the legal rate of interest for the time being, as the shareholder paying such sum in advance and the company shall agree upon. XXVI. Enforcement of calls by action.-If at the time appointed by the company for the payment of any call, any shareholder fail to pay the amount of such call, it shall be lawful for the company to sue such shareholder for the amount thereof, in any court of law or equity having competent jurisdiction, and to recover the same, with lawful interest, from the day on which such call was payable.1 1 Law of Rlys. pp. 113 et seq. XXVII. Averment in action for calls.—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 aver that the defender 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.1 1 See Wilson v. Birkenhead, Lan., and Ches. R. C. (1851), 6 R.C. 771; East Lancashire R. C. v. Croxton (1850), 6 R.C. 214; and Moore v. Metr. Sewage Co. (1849), 3 Ex. 833. XXVIII. Matter to be proved in action for calls.—On the trial or hearing of such action or suit it shall be sufficient to prove that the defender at the time of making such call was a holder of one share or more in the undertaking, and that such call was in fact made, and such notice thereof given as is directed by this or the special Act; and it shall not be necessary to prove the appointment of the directors who made such call, nor any other matter whatsoever; and thereupon the company shall be entitled to recover what shall be due upon such call, with interest thereon, unless it shall appear either that any such call exceeds the prescribed amount, or that due notice1 of such call was not given, or that the prescribed interval between two successive calls had not elapsed, or that calls amounting to more than the sum prescribed for the total amount of calls in one year had been made within that period.2 1 See Law of Rlys. p. 104. 2 As to defences to calls, see Law of Rlys. pp. 115-123. XXIX. Proof of proprietorship.-The production of the register of shareholders shall be prima facie evidence of such defender being a shareholder, and of the number and amount of his shares.1 1 See Law of Rlys. pp. 90 and 114. 1845. [XXV.] [XXVI.] [XXVII.] [XXVIII.] NON-PAYMENT OF CALLS. And with respect to the forfeiture of shares for non-payment of calls, be it enacted as follows:1 1 See Law of Rlys. pp. 55-57, and 26 & 27 Vict. c. 118, secs. 3-11, as to cancellation of forfeited shares. XXX. Forfeiture of shares for non-payment of calls.-If any shareholder fail to pay any call payable by him, together with the interest, if any, that shall have accrued thereon, the directors at any time after the expiration of [XXIX.] two months from the day appointed for payment of such call, may declare the share in respect of which such call was payable forfeited, and that whether the company have sued for the amount of such call or not.1 1 As to forfeiture in case of call payable by instalments, see Law of Rlys. p. 123, and cases there cited. XXXI. Notice of forfeiture to be given before declaration thereof.—Before declaring any share forfeited the directors shall cause notice of such intention to be left at or transmitted by the post to the usual or last place of abode of the person appearing by the register of shareholders to be the proprietor of such share; and if the holder of any such share be abroad, or if his usual or last place of abode be not known to the directors, by reason of its being imperfectly described in the shareholders' address book, or otherwise, or if the interest in any such share shall be known by the directors to have become transmitted otherwise than by transfer, as herein before mentioned, but a declaration of such transmission shall not have been registered as aforesaid, and so the address of the parties to whom the same may have been transmitted, or may for the time being belong, shall not be known to the directors, the directors shall give public notice of such intention in the Edinburgh Gazette, and also in some newspaper, as after mentioned; and the several notices aforesaid shall be given twenty-one days at least before the directors shall make such declaration of forfeiture. XXXII. Forfeiture to be confirmed by a general meeting.-The said declaration of forfeiture shall not take effect so as to authorise the sale or other disposition of any share until such declaration have been confirmed at some general meeting of the company to be held after the expiration of two months at the least from the day on which such notice of intention to make such declaration of forfeiture shall have been given; and it shall be lawful for the company to confirm such forfeiture at any such meeting, and by an order at such meeting, or at any subsequent general meeting, to direct the share so forfeited to be sold or otherwise disposed of. XXXIII. Sale of forfeited shares.-After such confirmation as aforesaid it shall be lawful for the directors to sell the forfeited share, either by public auction or private contract, and if there be more than one such forfeited share, then either separately or together, as to them shall seem fit; and any shareholder may purchase any forfeited share so sold. XXXIV. Evidence as to forfeiture of shares.-A declaration in writing, by some credible person not interested in the matter, made before any sheriff or justice, that the call in respect of a share was made, and notice thereof given, and that default in payment of the call was made, and that the forfeiture of the share was declared and confirmed in manner hereinbefore required, shall be sufficient evidence of the facts therein stated; and such declaration, and the receipt of the treasurer of the company for the price of such share, shall constitute a good title to such share; and a certificate of proprietorship shall be delivered to such purchaser, and thereupon he shall be deemed the holder of such share, discharged from all calls due prior to such purchase; and he shall not be bound to see to the application of the purchase money, nor shall his title to such share be affected by any irregularity in the proceedings in reference to such sale. XXXV. No more shares to be sold than sufficient for payment of calls.— The company shall not sell or transfer more of the shares of any such defaulter than will be sufficient, as nearly as can be ascertained at the time of such sale, to pay the arrears then due from such defaulter on account of any calls, together with interest, and the expenses attending such sale and declaration of forfeiture; and if the money produced by the sale of any such forfeited shares be more than sufficient to pay all arrears of calls and interest thereon due at the time of such sale, and the expenses attending the declaration of forfeiture and sale thereof, the surplus shall, on demand, be paid to the defaulter. XXXVI. On payment of calls before sale the forfeited shares to revert.—If payment of such arrears of calls and interest and expenses be made before any share so forfeited and vested in the company shall have been sold, such share shall revert to the party to whom the same belonged before such forfeiture, in such manner as if such calls had been duly paid. XXXVII. Limiting responsibility of shareholders.-If the said company shall be incorporated, no person or corporation, nor the estate, real or personal, of any such person or corporation, who is or shall be a proprietor of the said incorporated company, shall be liable for or charged with the payment of any debt or demand whatsoever due or to become due by or from the said company beyond the extent of his or their share in the capital of the said company. EXECUTION AGAINST SHAREHOLDERS. And with respect to the remedies of creditors of the company against the shareholders, be it enacted as follows: 1— 1 See generally as to the remedies of creditors, Law of Rlys. pp. 812 et seq. XXXVIII. Execution against shareholders to the extent of their shares in capital not paid up.-If any legal diligence or execution shall have been. issued against the property or effects of the company, and if there cannot be found sufficient whereon to levy under such diligence or execution, then such diligence or execution may be used against any of the shareholders to the extent of their shares respectively in the capital of the company not then paid up;1 and for the purpose of ascertaining the names of the shareholders, and the amount of capital remaining to be paid upon their respective shares, it shall be lawful for any person entitled to any such execution, at all reasonable times, to inspect the register of shareholders without fee. 1 See in re West Lancashire R. C. (1890), 63 L.T. 56; Nixon v. Green (1858), 3 H. & N. 686; and Mammatt v. Brett (1886), 54 L.T. 165. XXXIX. Reimbursement of such shareholders.—If by means of any such diligence or execution any shareholder shall have paid any sum of money beyond the amount then due from him in respect of calls, he shall forthwith be reimbursed such additional sum by the directors out of the funds of the company. 1845. [XXXV.] [36] [37] POWER TO BORROW MONEY. And with respect to the borrowing of money by the company on mortgage or bond, be it enacted as follows: 1 1 See the provisions of 29 & 30 Vict. c. 108, secs. 3-12. sec. 29, as to borrowing under certificate of Board of Trade. the issue of loan notes is prohibited. As to the company's see Law of Plys. pp. 45-49 and 803-811, and cases there cited. See also 27 & 28 Vict. c. 121, XL. Company may borrow on mortgage or bond.-If the company be [XXXVIII.] authorised by the special Act to borrow money on mortgage or bond, it shall be lawful for them, subject to the restrictions contained in the special Act, to borrow on mortgage or bond such sums of money as shall, from time to 8 VICT. Cap. 17. [39] [40] [41] [XLII.] [XLIII.] time, by an order of a general meeting of the company, be authorised to be borrowed, not exceeding in the whole the sum prescribed by the special Act, and for securing the repayment of the money so borrowed, with interest, to mortgage the undertaking,1 and the future calls on the shareholders, or to give bonds in manner hereinafter mentioned. 1 See note to sec. 2. XLI. Power to re-borrow. If, after having borrowed any part of the money so authorised to be borrowed on mortgage or bond, the company pay off the same, it shall be lawful for them again to borrow the amount so paid off, and so from time to time; but such power of re-borrowing shall not be exercised without the authority of a general meeting of the company, unless the money be so re-borrowed in order to pay off any existing bond or security. XLII. Evidence of authority for borrowing.-Where by the special Act the company shall be restricted from borrowing any money on mortgage or bond until a definite portion of their capital shall be subscribed or paid up, or where by this or the special Act the authority of a general meeting is required for such borrowing, the certificate of a sheriff that such definite portion of the capital has been subscribed or paid up, and a copy of the order of a general meeting of the company authorising the borrowing of any money, certified by one of the directors or by the secretary to be a true copy, shall be sufficient evidence of the fact of the capital required to be subscribed or paid up having been so subscribed or paid up, and of the order for borrowing money having been made; and upon production to any sheriff of the books of the company, and of such other evidence as he shall think sufficient, such sheriff shall grant the certificate as aforesaid. XLIII. Mortgages and bonds to be by deed duly stamped.-Every mortgage and bond for securing money borrowed by the company shall be by deed under the common seal of the company, duly stamped, and wherein the consideration shall be truly stated; and every such mortgage deed or bond may be according to the form in the schedule (C) or (D) to this Act annexed, or to the like effect, and every such mortgage deed shall have the full effect of an assignation in security duly completed. XLIV. Rights of mortgagees.-The respective mortgagees shall be entitled one with another to their respective proportions of the tolls, sums, and premises comprised in such mortgages, and of the future calls payable by the shareholders, if comprised therein, according to the respective sums in such mortgages mentioned to be advanced by such mortgagees respectively, and to be repaid the sums so advanced, with interest, without any preference one above another by reason of priority of the date of any such mortgage, or of the meeting at which the same was authorised.1 1 As to priority of mortgagees over other creditors, see Law of Rlys. pp. 810, 811, and 30 & 31 Vict. c. 126, sec. 23. They cannot operate sale: Dundee Union Bank v. Dundee and Newtyle R. C. (1844), 6 D. 521; Gardner v. L., C., and D. R.C. (1866), 2 L.R. Ch. Ap. 201, and other cases cited in Law of Rlys. pp. 812-815. Or adjudication apparently: Glover's Trs. v. City of Glasgow Union R.C. (1869), 7 M. 338. XLV. Application of calls notwithstanding mortgage. No such mortgage (although it should comprise future calls on the shareholders) shall, unless expressly so provided, preclude the company from receiving and applying to the purposes of the company any calls to be made by the company. XLVI. Mortgages to be personal estate.-All mortgages and money lent on mortgage to the company shall be personal estate, and transmissible as such, and shall not be of the nature of real estate. |