the special act, or as is sometimes the case, where the association make an assignment of their property.1 But even an express provision in the charter, that the company shall be Under the English statute, all the subscribers are constituted directors until they designate who shall act in that capacity, and have authority to appoint one of their number to an office in the company. Eales v. The Cumberland Black Lead Mine Co. 7 Jur. N. S. 169. It seems to be considered essential, in order to fix the liability of a subscriber to the articles of association on that ground alone, that the subscription should be in his own handwriting and not by procuration merely. Richardson ex parte, 4 Law T. N. S. 589. The company are not bound to give notice of the allotment of shares in order to bind the subscriber to take them. It is his duty to take notice of the allotment, and to make payment of all future dues fixed by law or the terms of the contract. Bloxam ex parte, 10 Jur. N. S. 814. But in order to render the allottee liable to pay calls on shares they should be specifically numbered and appropriated by number. Irish Peat Co. v. Phillips, 7 Jur. N. S. 413; s. c. affirmed 7 Jur. N. S. 1189, 1 B. & S. 598. But semble he may be estopped to deny his membership. So too it was considered in this case, that in order to bind an associate to pay future calls, it was essential that he should have subscribed the deed of association. The provision of the English statute as to the period within which the register of shareholders shall be made and sealed is regarded as directory, so far as the liability of shareholders is concerned, and they will not be exonerated from responsibility by a failure of the company to comply with the direction. W. N. W. Co. v. Hawksford, 11 C. B. N. S. 456; 8 Jur. N. S. 844 in Exchequer Chamber. The company, when fully incorporated, may sue in their own name upon calls made by the directors of the preliminary incorporation. Hull Co. v. Wellesley, 6 H. & N. 38. A registered shareholder in a company, which was afterwards incorporated with a new company, is entitied to be regarded as a shareholder in the new company, if the act of incorporation so provide, although he may not have exchanged his certificate for shares in the old company for those in the new company. Spackman v. Lattimore, 3 Giff. 16; s. c. 7 Jur. N. S. 179. It was further decided in this case, that the subscribers could not charge their own subscriptions against the company as money advanced for their benefit. Where a subscriber has paid for the expenses of the promoters all that the terms of association required, he cannot be charged further, because he made the payment without taxation. Croskey v. Bank of Wales, 4 Gif. 314. The property in shares vests in the subscriber upon the execution of the deed and complete registration of the company, and the delivery of scrip certificates is not requisite to vesting the shares, but they are to be regarded merely as the indicia of property. Hunt v. Gunn, 3 F. & F. 223. 1 Haslett's Ex'rs v. Wotherspoon, 1 Strob. Eq. 209; Salem Mill Dam Co. v. Ropes, 6 Pick, 23. solely liable for the debts of the association, will not exonerate the association unless by the consent of the creditors.2 But when the company assume the debts of the association, by the assent of their creditors, they will be relieved.3 SECTION V. How contracts of the Promoters may be adopted by the company. Cannot assume the benefit without the burden. § 6. Wherever a third party enters into a contract with the promoters of a railway, which is intended to enure to the benefit 2 Witmer v. Schlatter, 2 Rawle, 359. 3 Whitwell v. Warner, 20 Vt. R. 425. But by the English statutes companies provisionally registered are not allowed to make any contract, not indispensable to carrying forward the project to full registration. And where the directors of such a company contracted for plans, sections, and books of reference, to the value of £3,000, it was held a violation of the statute and illegal, and that no recovery could be had upon it. Bull v. Chapman, 20 Eng. L. Eq. 488; 7 & 8 Vict. ch. 110. A contract made between the projector and the directors of a company provisionally registered, but not in terms made conditional on the completion of the company, is not binding upon the subsequently completely registered company, although ratified and confirmed by the deed of settlement. Gunn v. London and Lancashire Assurance Co., 12 C. B. N. S. 694. The promoters of a railway company agreed with the tenant for life of settled estates to pay him £20,000 for obtaining his support to their scheme. This agreement was afterwards adopted by the provisional committee of a second company, which stood in place of the first. The second company's bill passed, and an indenture was made under the company's seal, by which, on the ground of doubts as to the absolute right of the tenant for life to the £20,000, the company was to retain the sum and pay interest on it. Interest was paid for some years, but at length the company refused to make any further payment. Upon a bill by a subsequent tenant for life of the estates to have the company's liability declared, and obtain payment of the £20,000 for the benefit of the settled estate: Held that the contract was ultra vires, and could not be enforced. Held also that this was not withim the meaning of the Companies' Clauses Consolidation Act, sec. 65, as being in respect of "costs incurred in obtaining the special act, and incident thereto." Lord Shrewsbury v. North Staffordshire R. R. C., V. C. Kindersley; 12 Jurist N. S. 63. of the company, and they take the benefit of the contract, they will be bound to perform it, upon the familiar principle that one *who adopts the benefit of an act, which another volunteers to perform in his name and on his behalf, is bound to take the burden with the benefit.1 SECTION VI. Contracts between the Promoters and Opposers of a Bill for the Charter of a Railway. 1. English cases numerous. 2-5. Lord Eldon's opinion, in case of Vauxhall Bridge Co. § 7. 1. The cases in the English books upon the subject of contracts between the promoters of railway projects in parliament and those who have counter interests, and who are ready to persist in opposition to such projects unless they can secure some compromise with the promoters, are considerably numerous, and involve a question of no inconsiderable importance. We shall therefore examine them somewhat in detail. 1 2. One of the earliest cases upon this subject was decided by the Lord Chancellor, Cottenham, upon full argument, and great consideration, as early as 1836. But as this case professes to rest mainly upon a leading opinion of Lord Chancellor Eldon,2 upon a somewhat analogous subject, it may not be improper here to give the substance of that decision. 3. The application to parliament for the plaintiff's company, if granted, it was conceded, would injuriously affect the tolls upon another bridge not far distant. The proprietors of this bridge were opposing the plaintiff's grant before the parliamentary committee, with a view to secure some indemnity against 1 Gooday v. The Colchester & Stour Valley Railway, 15 Eng. L. & Eq. 596; Preston v. Liverpool & M. Railway, 7 Eng. L. & Eq. 124; Edwards v. Grand Junction Railway, 1 Mylne & Cr. 650. The cases in support of this general proposition are very numerous, and will be more fully examined in the next section. 1 Edwards v. The Grand Junction Railway, 1 Mylne & Cr. 650. * such loss, to be specially provided for by the plaintiff's act, upon condition that the plaintiffs should open their bridge for the public travel. The promoters of the plaintiff's grant and the proprietors of the rival bridge had come to an agreement in regard to the extent of the indemnity, and upon naming it to the committee, with a view to have it inserted in the act, one member of the committee objected to such course, as calculated to sanction improper influences upon public legislation. The promoters of the new bridge then proposed to the proprietors of the rival one to give them security for the proposed indemnity, by way of bond with surety which should quiet their opposition, and the bill pass. This was acceded to and the securities given, and the bill passed accordingly. The opinion of Lord Eldon is an affirmance of the decision of the Vice-Chancellor, retaining the bill till the matter should be tried at law. But the intimations of the Chancellor indicate certainly that he regarded the contract as perfectly valid, and the bill was afterwards dismissed by consent. Lord Eldon said, " in the view I take of the case, it will not be an obstacle to the plaintiffs that they do not come with clean hands, for it is settled, that if a transaction be objectionable, on grounds of public policy, the parties to it may be relieved; the relief not being given for their sake, but for the sake of the public. Thus it is in the case of marriage brocage bonds. The principle was much discussed in the case of Neville v. Wilkinson, where Mr. Neville being about to marry, inquiry was made by the lady's father to what extent he was indebted. Wilkinson, who was applied to at the desire of Neville, concealed a demand which he had against him; after the marriage he attempted to recover it, and a bill was filed to restrain him. I remember arguing it with obstinacy, but Lord Thurlow thought that, having made a misrepresentation, a court of equity must hold him to it, and that, although the plaintiff was a particeps criminis; so it was held in the case of Shirley v. Ferrers,5 in the Exchequer. 4 4. "It is argued that this was a fraud upon the legislature, but I think it would be going a great way to say so, for non constat, if it had been pushed to the extent of taking the opinion of the house, that it might not have passed the bill in its former shape. It cannot be said that the agreement is contrary to legislative policy, because one member of the committee makes an objection, which is not sanctioned or known by the house at large. Indeed, such things are constantly done, and with the knowledge of the house; for they are in the habit of saying, with respect to these private acts, that though they will not of themselves pass them into laws, yet they will if the parties can agree; and matters sometimes are permitted to stand over to give an opportunity of coming to a settlement. 5. "It is then said, that the money was to be paid out of the funds of the Vauxhall Bridge Company, which by the act were devoted to other purposes. The proprietors of Battersea Bridge, however, say that they have nothing to do with the funds of the company; that they have contracted with a number of independent persons, to whom they look for the payment of the bonds; and if the obligors agree with the company to pay the bonds with their money, what have the obligees to do with that, unless by antecedent contract? They had no demand in law or equity against the company. If, then, the Vauxhall proprietors choose to sanction what the legislature has not directed, namely, the indemnifying the persons who have become obligors in the bonds, that is one thing; if they have not, then, the individual officers who have paid the money over in discharge of the bonds ought not to have paid it, and may now be called on to pay it back; as between them and the company, the money must be considered as being still in their hands. If the transaction is to be considered merely as between the obligors and the obligees, the latter not refusing the money from whatever hands it came, but not entangling themselves in any contracts between the obligors and the company, then the obligees would not be affected by those contracts. But if so, still the case depends upon the validity of the bonds; for I think the Vauxhall Bridge Company may with propriety say, if the money was paid in consequence of an arrangement for the discharge of the bonds, and if the bonds were bad, that then it may be called back. When the cause was heard by the Vice-Chancellor, he |