scriptions to stock runs from the time that the call is due. The English Companies' Clauses Act of 1845, provides, that “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 actual payment." 2 A special claim for interest is not necessary in an action under this act; but the amount claimed should cover the interest.3

1 Gould v. Oneonta, 71 N. Y. 298; Burr v. Wilcox, 22 N. Y. 551.

2 The Companies' Clauses Act, 1845, 8 Vict. ch. 16, § 23.

3 Browne & Theobald's Railway Law, 78, citing South Hampton Dock Co. v. Mchards, 1 Macn. & G. 448; London etc. R'y Co. v. Fairclough, 2 Macn. & G. 674.

Demand-Waiver.

"After notice has

§ 169. been given, no demand is necessary be ore bringing suit to collect." 1 The fact that other subscribers have had no notice of a call is immaterial. The making of the call, or informalities in the notice thereof, may be waived by the subscriber, either expressly or by implication from certain acts. But payment of a portion of the subscription is no waiver of the right to require calls to be made for the balance; and the vote of a city to pay a call does not waive its invalidity.5 The waiver must be clearly proven.

1 Cook on Stock & Stockh. § 120; Winters v. Muscogee R. R. Co. 11 Ga. 438; Penobscot etc. R. R. Co. v. Dummer, 40 Me. 172; 63 Am. Dec. 651; Goodrich v. Reynolds, 31 111. 491; 83 Am. Dec. 210. Cf. Spangler v. Indiana etc. R. R. Co. 21 Ill. 276.

2 Shackleford v. Dangerfield, Law R. 3 Com. P. 407; Newry etc. R'y Co. v. Edmunds, 2 Wels. H. & G. 118.

3 Macon etc. R. R. Co. v. Vason, 57 Ga. 314; Rutland etc. R. R. Co. v. Thrall, 35 Vt. 535.

4 Grosse Isle Hotel Co. v. I'Anson, 43 N. J. 442.

5 Pike v. Bangor etc. R. R. Co. 63 Me. 445.

6 Rutland etc. R. R. Co. v. Thrall, 35 Vt. 536.

§ 170. Pleading-Measure of damages-Limitation. The pleadings in an action to enforce p1yment of calls must allege the various facts that complete the obligation of the subscriber to pay.1 Under the English Companies' Clauses Act of 1845, it is sufficient for the company to prove in an action to enforce the payment of calls, "that the defend nt at the time of making such calls 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 whatsover; 2 and thereupon the company shall be entitled to recover with interest, unless it appear that the call exceeded the prescribed amount, or that due notice had not been given, or that the prescribed interval between two successive calls had not elapsed, or that the calls for the year were in excess of the prescribed amount.3 The measure of damages in an action on a call is the amount of the call with interest from the time of default of pyment.1 An action for calls under the Companies' Clauses Act of 1845,5 will not lie against a person who is not shown to be the holder of some specific shares. In England the liability for calls being created by statute, the limitation thereon is twenty years. When no call has been made by the corpɔration, the statute of limitations does not begin to run until a decree of court orders the amount due upon the subscription to be paid.R

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6

1 Bethel etc. Bridge Co. v. Beane, 58 Me. 89; Cook on Stock & Stockh. § 120. See also Spangler v. Indiana etc. R. R. Co. 21 Ill. 276, where the customary averments are set forth. Cf. Peake v. Wabash R. R. Co. 18 Ill. 88. 2 8 Vict. ch. 16, § 27.

3 The Companies' Clauses Act, 1815, 8 Vict. ch. 16, § 27.

4 Upton v. Burnham, 3 Biss. C. C. 520; Gould v. Oneonta, 71 N. Y. 298; Southern etc. R. R. Co. v. Moravia, 61 Barb. 180. The amount of the call with lawful interest from the day on which it was payable: 8 Vict. ch. 16, § 25.

5 8 Vict. ch. 16, § 26.

6 Wolverhampton etc. Co. v. Hawkesford, 6 Com. B. N. S. 336.

7 Cork etc. R'y Co. v. Goode, 22 Law J. Com. P. 193; S. C. 13 Com. B. 826.

8 Hawkins v. Glenn, 1889) supra § 152, n. 11. Rep. 187.

(1889) 131 U. S. 319; Lehman v. Glenn, (86 Ala. Acc. Powell v. Oregonian R'y Co. (1889) 38 Fed.

CHAPTER VIII.

OF THE FORFEITURE OF SHARES OF STOCK.

§ 171. The several remedies of the company against delinquent stockhold

§ 175.

The remedy by forfeiture and sale is statutory-The statute to be strictly followed.

§ 176. The method of forfeiture-Statutory provisions concerning, strictly construed.

§ 177.

Notice of forfeiture requisite-Notice not equivalent to forfeiture.
Notice of forfeiture-The New York and English statutes.

§ 179.

§ 178.

The remedy by forfeiture is not exclusive of the common law remedies.

§ 180. Whether the shareholder is liable for deficiency after forfeiture and sale.

§ 181.

Forfeited shares may be reissued.

§ 182.

The liability of the purchaser at forfeiture sale.

§ 13. Tho effect of forfeiture upon the shareholder's liability to creditors. § 184. Equity will relieve against unauthorized forfeiture.

§ 171. The several remedies of the company against delinquent stockholders.-The corporation has several remedies against a shareholder refusing or failing to pay calls or assessments upon his stock. It may bring an action at law for breach of contract, and recover in damages the difference between the amount subscribed and the market value of the stock at the date of the refusal to pay.1 It may sue for the amount of the subscription, and obtaining judgment, sell the stock under execution and levy. It may bring an ordinary action in as

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ure.

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sumpsit. It may, under statutory authority, forfeit the shares.* And it may proceed by strict foreclosA strict foreclosure of shares of stock can be effected only under the enabling power of a statute. It resembles in general a strict foreclosure of a mortgage of realty. The stock is not sold at public sale, but is taken back into the possession of the corporation itself, and the proceeding amounts to nothing more than a statutory cancellation of the contract. The company may then sell the stock at less than par. The modern tendency is to discourage this mode of procedure. The company may also accept a voluntary surrender of shares where it appears more advisable to do so than to avail itself of the remedies mentioned.

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1 Rand v. White Mountains R. R. Co. 40 N. II. 79.

2 Chase v. East Tennessee etc. R. R. Co. 5 Lea, 415. 3 Infra, § 179.

4 Infra, § 173.

5 Cook on Stock & Stockh. § 122.

6 Ramwell's Case, 50 Law J. Ch. 827.

7 Cook on Stock & Stockh. § 122. The leading case on this subject is People v. Susquehanna R. R. Co. 5 Barb. 3.4.

R. R. Co. v. Bailey, 21 Vt. 465; 58 Am. Dec. 181.

See also Connecticut etc.

Infra, § 172. Cf. Emden's Practice and Forms in Winding-up Companies (3rd ed. 1889), 253.

§ 172. Of voluntary surrender and abandonment.-Ordinarily the shareholder cannot himself work a forfeiture by abandonment.1 A subscriber cannot plead as a defense to an action to enforce payment brought in behalf of the corporate creditors, that the company might have forfeited his stock. For although forfeiture is imposed as a penalty for breach of the promise to pay, it is not for the subscriber to elect by submitting to the forfeiture or rendering himself liable thereto to es