to be got over. The case of Bayley v. Buckland et al. (1 Ex. R. 1) is much in point to shew that where no process has been served upon the defendants, nor any notice of the action brought home to their knowledge, the court will relieve against the verdict, although the attorney who entered appearance for the defendant be not insolvent.

The present case appears to fall within that decision, and should be governed by it. There has been a misapprehension on the subject, by which an appearance has been entered for the defendants without actual service or notice of process upon or to either, and a large verdict obtained against them without their being heard in their defence. Merits are expressly alleged in their affidavits; and however it may delay the plaintiff in his recovery, if entitled to recover, we think the present proceedings must be set aside.

As to costs, we shall not add them to the rule to be paid by the plaintiff to the defendants, but will leave the defendants to settle them with Messieurs Smith & Green, who do not admit that they appeared for the defendants without color or absolute want of authority.

THE ONTARIO MARINE INSURANCE COMPANY V. IRELAND. Shares-Forfeiture of, by owner.

To a declaration for calls under the 10th section of the 12 Vic. ch. 166, the defendant pleaded, that, by reason of the nonpayment of the said calls in declaration mentioned, the said shares, and each of them, became forfeited in pursuance of the statute, and that defendant acquiesced in such forfeiture, of which plaintiffs had notice.

Held, that such plea was bad, in that it did not rest with defendant to forfeit the shares.

Writ issued the 17th of April, 1855: declaration, 26th of April, 1855.

DEBT for calls on twenty shares of the capital stock of the Company, under the form given by the 10th section of the 12 Vic. ch. 166-one call of 10s., and four other calls of 12s. 6d. each, upon each of the said shares, then before duly made by the Company.

Third plea-That before suit-to wit, &c.-by reason of defendant, as owner of said shares, having neglected and refused to pay his ratable and proportionable share of money

called for in respect of said shares, being the said calls in declaration mentioned, the said shares in declaration mentioned were, and each of them was, in pursuance of the act of Parliament in that behalf, forfeited, and defendant thento wit, &c.-acquiesced in said forfeiture, of which plaintiffs had notice: verification.

Fourth plea-Same as the third, except that it refers to the first only of the five calls in the declaration mentioned.

Demurrer to third plea, on the grounds-First, that it offers no answer to the declaration, but confessing the plaintiff's cause of action, does not avoid it; secondly, that the plea should have shown how the forfeiture occurred, and that the amount due on the calls had been satisfied from the proceeds of the shares so forfeited.

Similar grounds assigned as to the fourth plea.

The demurrer was argued, during this term, by Burton for plaintiffs, and Connor, Q. C., for defendant.

MACAULAY, C. J.-There are two pleas demurred to-the first is to the whole declaration, the second is to three only of four calls, omitting the first; both rely upon a forfeiture by reason of defendant's own fault, of which he seeks to take advantage.

The second plea seems inconsistently to set up a failure to pay the first call as creating a forfeiture, wherefore no action accrued for the subsequent call, and yet does not answer the first call, which the plea in effect leaves unanswered, and concedes thereby the plaintiff's right to recover therefor.

The first plea, on the other hand, relies upon the successive forfeitures by successive defaults.

Perhaps, if otherwise good, the plea should have been to the whole; no ground of action by reason of the first default-The Marmora Foundry Company v. Murney (1 U. C. C. P. R. 44); The Great Northern Railway Company v. Kennedy (13 Jurist, 1008, S. C. 4 Ex. R. 417); The Edinburgh Railway Company v. Hebblewhite (6 M. & W. 707); Giles v. Hunt (3 Ex. R., 18); The Birmingham Railway Company v. Locke (1 Q. B., 256); Thompson v. Fuller (8 Ex. R. 279); Statute 12 Vic. ch. 166, secs. 9 and 10.

The pleas seem to me bad, in not showing a forfeiture declared and carried into effect by the plaintiffs; even if that would do.

The observation of Dr. Connor, that stock being once subscribed for at once becomes a species of property, which upon non-payment of calls may be forfeited, not cancelled, and the consideration that a right of action must have vested in the plaintiffs the instant default was made, and that a forfeiture could not step in before and preclude the right of action vesting, seem to show clearly that it must rest with the plaintiffs, at all events, whether the vested right of action shall be waived by enforcing the forfeiture.

MCLEAN, J., and RICHARDS, J., concurred.

Judgment for the demurrer.

REGINA EX RELATIONE DILLON V. MCNEIL.

Elector-Refusal to take oath.

The refusal of an elector to take the oaths required by the returning officer is a good ground for setting aside an election, if the relator would otherwise have had the majority.

This is an application to reverse the decision of the Judge of the County Court of Kent, on the grounds that the votes on which the defendant was elected were duly qualified votes; that the returning officer should have been made a party, or that defendant should be relieved from the costs, &c.

It appeared that at the last election for ward No 3, township of Raleigh, fifty-two votes were polled for the defendant, and seventeen for the relator. Of the defendant's voters thirty-eight were objected to as being aliens, and who had either refused to take the oath of qualification according to the statute, or to, or from whom, the returning officer had declined to administer, or exact it.

The relator in his affidavit states that the returning officer received and recorded the votes of certain aliens (not saying for whom) against the remonstrances of the relator-that he required the returning officer to administer to the said parties, as aliens as aforesaid, the oath or oaths required by

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law, and that the returning officer, in some instances, requested the said parties, as aliens, to take the requisite oath, and in others he did not so request the said parties to take such oath or oaths..

That the said aliens refused to take such oath or oaths; but the returning officer, nevertheless, received and recorded the votes of the said parties, aliens as aforesaid, contrary to law and against the protest, &c. of the relator; that by receiving such votes, some thirty in number, the defendant was made to appear with the greater number of votes, while in fact the relator had the larger number of legal votes, and ought to have been returned.

It was agreed by the counsel on both sides, in writing, that the poll-book should be produced, and the votes objected to be indicated by a note opposite the names thus-" refused to take the oath," except in two additional instances; and that the production of such book should decide finally the question as to whether the parties whose names so appeared as objected to refused to take the oaths, and thereby became disqualified as

voters.

The judge decided in the relator's favor, not on the ground of alienage, but because thirty-eight of defendant's voters had refused to take the oath of being natural-born or naturalized subjects of her Majesty; and, striking off the votes of those who so refused, there was a majority of three in the relator's favor. Reference was made to the statutes 12 Vic. ch. 81, secs. 121, 122, 124, 151, 152; 16 Vic. ch. 181.

MACAULAY, C. J., delivered the judgment of the court. It would seem thirty-eight of defendant's voters refused to take the oath, and were not all, or a portion of them, merely excused or exempted therefrom by the returning officer accepting them as, in his opinion, duly qualified to vote-that is, as being natural-born or naturalized subjects of her Majesty. It appears to me such votes must be struck out, and that the onus is not on the relator to prove them aliens,-the objection is, not that they are aliens, but that they refused to be sworn as to their being subjects; and the objection seems sustained and valid, and the decision of the county judge therefore right.

As to the returning officer being made a party, that rested with the county judge; and this returning officer not being made a party is no sufficient ground for reversing his decision. The defendant not having disclaimed, but having accepted and defended the suit, incurs a liability to the costs in consequence. MCLEAN, J., and RICHARDS, J., concurred.

Per Cur.-Rule discharged with costs.

ONTARIO INSURANCE COMPANY V. IRELAND.

A call of four per cent. on the first instalment of five per cent. on the capital stock of the company, made by a quorum only, and not by a majority of the directors, is a good call, under the ninth section of the statute 12 Vic. ch. 166-the Act of Incorporation.

DEBT, for £62 108. Debt for calls on twenty shares duly made by plaintiffs-one call of ten shillings, and four calls of twelve shillings and sixpence each, upon each share.

This is a rule to enter a non-suit, or to reduce the verdict to the amount of four per cent. upon the first call.

The pleas are:-First, never indebted. Second, that the defendant did not own the shares. The third and fourth pleas are demurred to.

Under the first plea defendant contended that the plaintiffs did not prove £25,000 subscribed before the election of directors; and that when the first call was made it was not by a majority of the directors, but by a quorum only. the stat. 12 Vic. ch. 166, secs. 3, 9, 10, 12, 14.

See

In October, 1851, the defendant subscribed for twenty shares of £12 10s. each, and £46,000 of stock was subscribed in all; but at what period or when it amounted to £25,000 (sec. 3) does not appear, nor does it now seem material to enquire on these pleadings. In February, 1852, directors were elected to supply the place of retiring directors, (sec. 3) shewing a previous organization by the election of directors, or, at all events, the existence of a board of directors de facto.

On the 12th of April, 1852, at a meeting of five directors, four being a quorum, (sec. 12), it was agreed to make a call of the four per cent. upon the first instalment of five per cent., being £11 168., as stated in the judge's notes.