Defence.

1. The said G. H. was not the servant of the plaintiff.

2. The defendant did not seduce and carnally know the said G. H.

Reply.

The plaintiff joins issue upon the defence.

to get possession of the person of the woman, then the father would have an action on the ground that she remained in his service. (Speight v. Oliviera, 2 Stark. 495.) Another case in which there would be no remedy for a seduction, joined with subsequent pregnancy and illness, is the following. Suppose a woman in the service of her father or one master at the time of the seduction, and in the service of another master at the time of the pregnancy and illness, no action would lie by either master or the father. The father or first master could not sue, because there was no illness while in his service, and no loss of service. The second master cannot sue, because she was not seduced while in his service. (Davies v. Williams, 10 Q. B. 725.)

What is evidence of service to entitle a

parent to

To entitle a father to sue in this action for the loss of his daughter's services, it is not necessary to show any contract of service between them. (Evans v. Walton, L. R. 2 C. P. 615.) It is sufficient that the woman is not bound to give her services to anybody else, and that living with him or only temporarily absent, he can at any moment command her services. If the father is dead, the mother or any other person who stands in loco sue. parentis to the woman seduced has his rights. In Terry v. Hutchinson, L. R. 3 Q. B. 599, the plaintiff's daughter being under age went into service. After nearly a month the master dismissed her at a day's notice, and the next day on her way home to her father's house the defendant seduced her. It was held that as soon as the real service was put an end to by the master, whether rightfully or wrongfully, the girl intending to return home, the right of the father to her services revived, and there was, therefore, sufficient evidence of service to maintain an action for seduction. See on the other hand Hedges v. Tagg, L. R. 7 Ex. 283, for circumstances under which it was held that the service was not proved.

There is one important difference between the case of a parent suing for the loss of a daughter's services, and a mere master suing. The measure of damages awarded to the latter is the bare money loss suffered; but in addition to this, a jury may award to a parent damages for the distress of mind endured, and the dishonour and disgrace cast upon the family. (Bedford v. Mc Kowl, 3 Esp. 120.) The defences that a defendant may set up to this action have already been indicated. He may (1) deny that the plaintiff was the master of the woman at the time of the seduction; (2) deny the seduction altogether; (3) admitting or denying the fact of seduction, deny that any pregnancy or illness, followed by loss of service, resulted while in plaintiff's service. He may also plead the Statute of Limitations where six years have elapsed since the alleged loss of service; and it would seem that where the seduction has been brought about or contributed to by the misconduct of the plaintiff in encouraging improper intimacies, or by gross neglect of parental duties, a plea to that effect will be a good answer. (Reddie v. Scoolt, Peake, 316.) Referring to this last decision, it is remarked in a work of high authority, "It may well be doubted

Difference in measure of damages in actions by master and father.

Defences to

actions for seduction.

Statement of claim in action for calls.

When calls may be made.

Fraud a

defence if shares at

once re

pudiated.

Shares (a).

1. Claim against a Shareholder for Allotment-Money and Calls.

1. The plaintiffs' claim is for money in which the defendant. as a member of the company is indebted to the plaintiffs (being a company incorporated under the Companies Act, 1862) for

whether this was not rather matter in reduction of damages." (Roscoe's Nisi Prius, 13th edition, 880, to which the pleader is also referred for a complete list of all the cases on this subject.)

(a) Actions for calls.]-By s. 70 of the Companies' Act 1867, in an action by a company incorporated under that Act against a member for a call or other moneys due from him as a member, the special matter need not be set forth, and it is sufficient to allege that the defendant is a member of the company, and is indebted to the company in respect of a call made or other moneys due, whereby an action or suit has accrued to the company. And by s. 25 "every share in any company shall be deemed and taken to have been issued, and to be held, subject to the payment of the whole amount thereof in cash, unless the same shall have been otherwise determined by a contract duly made in writing and filed with the registrar of joint-stock companies at or before the issue of such shares."

The power to make calls is usually vested by the articles of association of the particular company in the directors, and they are bound, in making such calls, to conform to the conditions as to time, notice, and so forth, contained in the articles. Any failure in that regard would constitute a defence to the member sued. Schedule 1., Table A of the Companies Act, 1867, provides regulation in relation to the making of calls, which are to apply, unless the articles of the company expressly provide otherwise. The articles frequently prohibit the directors from making any calls until a certain portion of the share capital has been subscribed. In such a case the directors are bound by the prohibition, but in other circumstances, calls can be legally made, although only a very small portion of the shares have been taken up. (Ornamental Woodwork Co. v. Brown, L. J. 32 Ex. 190; 2 H. & C. 63.) A statement that "no further calls are contemplated" affords no defence to an action for calls. (Accidental Insurance Corporation v. Davis, 15 L. J. 182.) If a transfer of shares has been made and registered after a call has been made, but before it has become payable, it is conceived, although it is by no means clear, that the transferer, and not the transferee, is the person liable in an action for a call" (Buckley on Companies, 3rd ed., p. 365). Interest after the rate of 5 per cent. is payable upon all shares from the day appointed for the payment thereof until actual payment.

In an action for calls, the defendant, in addition to defences founded on a denial of the right of the directors to make calls, or the informal way in which their powers were exercised, or a denial of the fact that the defendant is a member of the company, may plead that he was induced to take the shares by the fraud of the company acting through its responsible officers or even by innocent misrepresentation.

A defendant, however, can only rely successfully upon the fraud in a defence where he alleges and pleads that as soon as he discovered the fraud, he repudiated the shares. (Bwlchy-Plum Lead Mining Co. v. Bayns, L. R. 2 Ex. 324; Deposit Life Assurance Co. v. Ayscaugh, 26 L. J. Q. B. 29, 6 E. & B. 761; Western Bank of Scotland v. Addie. L. R. 1 H. L. 145; Venezuela Rail. Co. v. Kisch, L. R. 2 H. L. 99.)

allotment-money of [here insert amount due on allotment] per share on [here insert number of shares held by defendant] shares in the company allotted to the defendant as such member, at his request, and for [here insert the number of calls in arrear] of [here insert amount of call] each upon [here insert number of shares] in the company of which the

A material misrepresentation in the prospectus of such a character that there is a complete difference in substance between what was supposed to be taken and what was taken, will also afford a defence, although the statement was made honestly and without any fraud. (Smith's Case, L. R. 4 H. L. 64; Smith v. Reese River Co., L. R. 2 Eq. 264.)

It must be carefully noted, however, that when the company is being wound up and the liquidator is the plaintiff, neither fraud nor misrepresentation is any defence to an action for calls, unless the defendant has actually taken measures prior to the commencement of the winding up, and immediately upon discovering the fraud or misrepresenta tion, to repudiate the shares.(Baker v. Turquand, L. R. 2 H. L. 325; Tawle's Case, L. R. 4 Ch. 497; Ross v. Estates Investment Co., L. R. 3 Ch. 682; In re Scottish Petroleum Co., 23 Ch. Div. 413 (C. A.).) And this is the law whether the winding up of the company is a compulsory or voluntary winding up. (Stone v. The City & County Bank; Collins v. The City & County Bank, 3 Ch. Div. 282.)

A person who has been duly settled on the list of contributories of a company, and on whom calls have been duly made, cannot (even in the case of a voluntary liquidation) in an action for calls by the liquidators of the company, counterclaim for a debt or damages due to him from the company. (Government Security Investment Co. v. Dempsey, 50 L. J. Q. B. 199.)

Liability to pay calls upon shares is, by sections 16 and 75 of the Act of 1862, in the nature of a specialty debt, and therefore the Statute of Limitations does not apply until after the lapse of twenty years.

Action for not accepting shares.]-Shares in joint stock companies are Writing not not goods. wares, or merchandise" within the Statute of Frauds, and generally writing is not as a rule essential to the validity of a contract for their necessary sale, though by the 30 & 31 Vict. c. 29, s. 1, no contract for the sale of on sale of shares in any joint stock banking company (except the Bank of England shares. or the Bank of Ireland) is valid, unless it is made in writing, and other requirements of the statute complied with. A custom on the London Stock Exchange to disregard the provisions of the 30 Vict. c. 29, is bad and unreasonable. (Neilson v. James, 51 L. J. Q. B. 369 (C. A.).) Šales of stock and shares are usually made on the Stock Exchange, and in such cases the transaction is regulated by the usages of the Stock Exchange, of which every person dealing there must be taken to have had notice. (Maxted v. Paine, L. R. 6 Ex. 132 (2nd case); Maxted v. Paine (1st case), L. R. 4 Ex. 81; Grissell v. Bristowe, L. R. 3 C. P. 112; L. R. 4 C. P. 36.) A contract for the sale of shares is not rescinded if the company is wound up between the making of the contract and the execution of the transfer. (Whitehead v. Izod, L. R. 2 C. P. 228.) Time is of the essence of the contract in the case of a contract to deliver shares on a particular day. (Fletcher v. Marshall, 15 M. & W. 755; Oderet v. Rothschild, 1 Sim, & H. 590.)

The measure of damage for not accepting stock sold is the difference between the contract price and the market price on the day of the breach of contract. (Bowman v. Nash, 9 B. & C. 145.)

Actions for not delivering shares.]-The purchaser may have an action

Time gene

rally of

essence of contract.

defendant is a holder, whereby an action has accrued to the plaintiffs.

1. The defendant never became a member of the said com

pany.

2. He had no notice of the said allotment or of the said calls.

2. Claim for Calls merely.

1. The plaintiffs' company is incorporated under the Companies Acts, 1862 and 1867, and the defendant is a member of it.

2. The plaintiffs' claim is for £100, in which the defendant is indebted to them in respect of a call made whereby an action has accrued to the company.

3. The said call was made on the 1st of May, 1880, for £5 a share on twenty shares in the said company held by the defendant.

The plaintiffs claim £100, and interest after the rate of 5 per cent. from the said 1st of May until payment.

against the seller of the shares for not delivering them, and in such a case the measure of damage is the difference between the contract price and the market value on or about the day of breach. (Tempest v. Kilner, 3 C. B. 253; Shaw v. Holland, 15 M. & W. 136.) When the plaintiff has actually paid for the shares, he is of course entitled to the return of his purchase-money. Time is of the essence of the contract; and it is not necessary that the plaintiff should prove that he actually tendered the price of the shares to the defendant. (Stephens v. De Medina, 4 Q. B. 422.)

Defence and Counter-claim.

1. The defendant was induced to subscribe for the said shares in the said company by the fraudulent misrepresentation of the plaintiffs, contained in a prospectus dated the 1st of January, 1880, and issued by.the plaintiff. The following are particulars :

(a) The prospectus stated [here insert the particular misstatement relied upon], whereas, in fact [here allege its falsehood].

(b) The prospectus further stated “

fact"

," whereas, in

2. The plaintiffs knew that the said statements were false. 3. The defendant further says that he was induced to purchase the said shares by the following material misrepresentations made by the plaintiffs in the said prospectus :

(a) The prospectus stated [here set out the misrepresentations relied upon], whereas, in fact [here allege its falsehood]. (b) The prospectus stated, &c.

4. The defendant, as soon as he discovered the falseness of the representations set out in the 1st and 3rd paragraphs hereof, repudiated the said shares.

Counter-claim.

5. The defendant repeats the allegations contained in paragraphs 1, 2, 3 and 4 hereof, and says that upon the allotment of the said shares to him he paid to the plaintiffs the sum of £5 per share.

The defendant counter-claims £100.

Reply.

1. The plaintiffs join issue upon the defence.

2. As to the counter-claim, the plaintiffs deny that they knew that any of the statements set out in the defence, and contained in the prospectus, were false.

3. None of the said misrepresentations were material. The plaintiff's made them bona fide, and with a belief in their truth. 4. The defendant did not rely upon the said representations in subscribing for the said shares.

5. The defendant did not repudiate the said shares upon discovering the alleged misrepresentations, nor has he ever done so.