The Jurisprudence of the Privy Council: Containing a Digest of All the Decisions of the Privy Council; A Sketch of Its History; Notes on the Constitution of the Judicial Committee; A Summary of Its Procedure and Also Three Appendices (Classic Reprint)

Excerpt from The Jurisprudence of the Privy Council: Containing a Digest of All the Decisions of the Privy Council; A Sketch of Its History; Notes on the Constitution of the Judicial Committee; A Summary of Its Procedure and Also Three Appendices

That being so, he alleged that these sums due to him in point of fact extinguished his liability to the company, and that inasmuch as the company never could have maintained proceedings against him in respect of any calls that they might make, the shareholders are in no better position than the company.

Their Lordships are of opinion that that is not the true position of the shareholder, and that in point of fact what the shareholder, in order to maintain his action, has to ascertain is this, and nothing else, namely, aye or no, has there or has there not been payment by the shareholder to the company of everything due from him to the company in respect of calls? It is not at all for their Lordships to decide on this present occasion what the effect would have been of the clause in the Code to which they have been referred, if calls had been actually made by the company antecedently to the time when the creditor brought the action against the shareholder. It may possibly be that if calls had been actually made by the com pany antecedently to the time when this creditor brought his action against the shareholder, then the debt would have been extinguished, and that then there would have been payment within the meaning of the first clause of the 19th section. But here there was nothing of the sort, and we must therefore turn to the clause in the code and see what it is which that clause provides.

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