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tled to be registered, as a shareholder, the same as the assignee of a fully registered share in the stock. And for the company, after having issued scrip certificates, in a form calculated to invite purchases, and when they were aware of the use constantly made of such scrip, to refuse to register the names of the holders, as shareholders and members of the company, would amount to little less than express fraud. Hence we conclude they have no right to decline accepting such scripholder, as a shareholder. But where false scrip had been issued, beyond the amount allowed in the charter, and the full number of shares allowed by the charter already registered, it was held the company could not upon that ground refuse to register the shares of such as had purchased the genuine scrip. But we shall have occasion to say more upon this subject elsewhere.10

6. By the laws of some of the States a given number of persons associating, in a prescribed form, for particular purposes, as religious, manufacturing, and banking purposes, and often for any lawful purpose, are declared to be a corporation. In such cases no application to the legislature is required. But, generally, railways in this country have obtained special acts of incorporation. There is, in most of the States, no provision for any preliminary association, and these enterprises are, for the most part, carried forward, by individuals, or partnerships, and questions arising, in regard to the binding force of the acts of the promoters, either upon, or towards the corporation, must depend upon the general principles of the law of contract.11

7. By the general law of some of the States the petitioners are required to furnish surveys of the proposed route, properly delineated upon charts, by competent engineers, with estimates, and other information requisite for the full understanding of the subject. And these profiles and plans are required, where the petition is granted, to be deposited in some public office, for inspection and preservation.12

8. Since the publication of the second edition of this work, the mode of procedure in obtaining parliamentary powers for railways,

* Midland G. W. Railway v. Gordon, 5 Railw. C. 76; s. c. 16 M. & W. 804. Daly v. Thompson, 10 M. & W. 309. 10 Post, §§ 39, 47.

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" Angell & Ames on Corporations, §§ 86–94.

12 Laws of Mass. 1833, ch. 176; 2 Railroad Laws & Ch. 616; id. 657; Laws of Mass. 1848, ch. 140; Laws of Rhode Island, 1836; 2 Rail. Laws & Ch. 838;

in England, has been considerably changed. The former laws have been repealed, and the whole consolidated into one statute,13 called "The Companies' Act, 1862," which applies to other companies as well as railways.

9. The usual course now is for the preliminary association to register itself as a preliminary company under the Act of 1862, for the purpose of obtaining a special Act of Parliament. This is effected by the promoters signing a memorandum of association, in which the powers of the company are specially limited to certain acts or purposes.

10. If the association be not registered under the statute so as to constitute it a corporation with limited powers, there may be danger that the individual members, who are active in promoting the enterprise, may incur the responsibility of general partners.14 But in England, it seems now settled that the promoters of railways are not, ordinarily, to be held responsible, as partners, for the acts of each other.15

Laws of Conn. 1849, ch. 37; id. 1853; Rev. Statutes of Maine, ch. 81, § 1; 1 Rail. Laws & Ch. 305. Similar provisions exist in many of the other States. But they are very general, and ordinarily the plans furnished are so imperfectly made, as not to afford much protection to land-owners. And a compliance with these requirements not being, in any sense indispensable to the validity of special acts, they are probably not very strenuously enforced by legislative committees, especially in cases where opposition is not made to the new incorporation, which is not very common, unless the project interferes with some rival work.

13 25 & 26 Vict. c. 89.

14 Hodges on Railways, (ed. 1865,) 2.

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15 Hamilton v. Smith, 5 Jur. N. S. 32; Post, § 4, n. 11; Norris v. Cooper, 3 H. Lds. Cas. 161. Statute 27 & 28 Vict. c. 121, facilitates, in certain cases, the obtaining of powers for the construction of railways. The act may be cited as The Railways Construction Facilities Act, 1864." The recital to the preamble enumerates the cases to which the act is to apply; it recites that it is expedient to facilitate the making of branch and other lines of railway, and deviations of existing railways, and of railways in course of construction, and also the execution of new works connected with, or for the purposes of, existing railways; and that the object aforesaid would be promoted, if, where all landowners and other parties beneficially interested are consenting to the making of a railway, or the execution of a work, the persons desirous of making or executing the same were enabled to obtain power to do so, on complying with the conditions of the general Act of Parliament, without being obliged to procure a special act. The promoters having contracted for the purchase of all the lands required for the railway, they are empowered to apply for a certificate from the

*SECTION II.

Contracts of the Promoters not binding at law upon the Company.

1. In this country, promoters only bind themselves and associates.

2. Contracts of promoters not enforceable by company.

3. But by consenting to a decree in equity setting up the contract, the company will be held to have adopted it.

§ 3. 1. The promoters of railways, in this country, where the law makes no provision for the preliminary association becoming a corporation, can only bind themselves and their associates, at most, by their contracts.1 The promoters are in no sense identi

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Board of Trade, in the same manner, and subject to the same incidents, as obtaining a certificate under the Railways Companies' Powers Act.

The lines and works of a railway are sufficiently shown on the plans deposited by a black line, with dotted lines on each side, to mark the limits of deviation. Weld v. London and South Western Railway Co., 9 Jur. N. S. 510, s. c. 11 W. R. 448; 32 Beav. 340.

Where the deposited plans and sections specify the span and height of a bridge by which a railway is to be carried over a turnpike road, the company will not, in the construction of the bridge, be allowed to deviate from the plans and sections. Attorney-General v. Tewkesbury and Great Malvern Railway Company, 1 De G. J. & Sm. 423; 9 Jur. N. S. 951; s. c. 8 L. T. N. S. 682.

1 Moneypenny v. Hartland, 1 C. and P. 352. Abbott, Ch. J., said: "Before an act passes for such a work as this, the surveyor and other persons employed on it look to the committee, or body of adventurers, who first employ them." S. P. Kerridge v. Hesse, 9 C. & P. 200; Doubleday v. Muskett, 7 Bing. 110. And one who attends the meetings of such preliminary association, and takes part, will ordinarily be precluded from denying his liability as a partner. Harrison v. Heathorn, 6 Man. & Gr. 81; Sheffield, Ash. and M. Railway v. Woodcock, 7 M. and W. 574. If the defendants have suffered themselves to be held out as partners in the enterprise, and engaged in carrying it forward, and others have performed service for the association, upon their credit, they are liable. Wood v. The Duke of Argyll, 6 Man. & Gr. 928; Steigenberger v. Carr, 3 id. 191. But express proof is required of authority from the partners, or of a necessity to draw bills, in the conduct of the business, to justify the directors in drawing bills on the credit of the association. Dickinson v. Valpy, 10 B. & C. 128. From the foregoing cases, and Bell v. Francis, 9 C. & P. 66, and some others, it would seem, that the directors and managing committee are always liable for services rendered such associations, on their employment and credit, and that such other members of the association are liable also, as the terms of the association, or their own active agency in the employment of ser

cal with the corporation, nor do they represent them, in any relation of agency, and their contracts could of course only bind the company, so far as they should be subsequently adopted by it, as their successors; much in the same mode and to the same extent, and under the same restrictions and limitations, as the contracts of one partnership bind a succeeding partnership in the same house. 2. But a contract by a joint-stock association, that each member shall pay all assessments made against him, cannot be enforced by a corporation subsequently created, and to which,* in pursuance of the original articles of association, the funds and all the effects of the former company have been transferred.2 Nor is the act of vants and agents, fairly justify such employees in looking to for compensation. It was held, in Scott v. Lord Ebury, Law Rep. 2 C. P. 255, that the promoters were responsible for money expended in obtaining the act of parliament, notwithstanding the incorporation and the assumption of these acts by the company. And one of the promoters cannot in equity compel others to contribute to expenses incurred by him, unless he is willing to have all the expenses brought into one account and adjusted together. Denton v. Macniel, Law Rep. 2 Eq. 352. Post, § 4, n. 11.

In regard to admissions made by provisional committee-men, and others, who have taken part in instituting railway projects, some allowance is made in the English courts, for probable mistakes and misapprehensions, by those not well acquainted with the liabilities of such persons. Newton v. Belcher, 6 Railw. C. 38; s. c. 12 Q. B. 921. And where others have not acted upon such admissions, the party has been allowed to show that they were made under mistake, either of law, or fact, and if so, the party has been held not to have incurred any additional liability thereby. Newton v. Liddiard, 6 Railw. C. 42; s. c. 12 Q. B. 925.

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The rule laid down by Bailey, J., in Heane v. Rogers, 9 B. & C. 577, upon this subject, is here expressly recognized by Lord Denman, Ch. J. The general doctrine laid down in Heane v. Rogers, that the party is at liberty to prove that his admissions were mistaken, or untrue, and is not estopped, or concluded by them, unless another person has been induced by them to alter his condition, is applicable to mistakes, in respect of legal liability, as well as in respect of fact." And this estoppel, it was held in the principal case, only extends to parties and privies, to the particular transaction in which the admission was made, and that third parties, having no interest in it, either originally or by derivation, can claim no benefit from it. This is in accordance with the established principles of the law of evidence, at the present time. See the opinion of the court in Strong v. Ellsworth, 26 Vt. 366.

2 Wallingford Manufacturing Co. v. Fox, 12 Vt. 304; Goddard v. Pratt, 16 Pick. 412, where it is held, the original copartners are still liable, upon contracts made with third parties, ignorant of the dissolution by the effect of the incorporation, the company having carried on business in the name of the partnership.

all the corporators even, the act of the corporation, unless done in the mode prescribed by the charter and general laws of the state.3 Nor can an incorporated company sustain an action at law, upon a bond executed to a preliminary association, by the name of the individuals and their successors, as the governors of the Society of Musicians, for the faithful accounting of A. B., their collector, to them and their successors, governors, &c., the company being subsequently incorporated.4

3. But the company, by consenting to a decree against them, upon a bill to enforce a contract with the promoters, by which they stipulated to withdraw opposition in parliament, upon condition that the company, when it came into operation, should take the land of the opposers of the bill at a specified price, and pay all the costs and expenses of the opposition until the time of the compromise, were held to have adopted the agreement, whether it would have been otherwise binding upon them or not.5

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§ 4. 1. The project for a railway being set on foot by a visional committee of directors or managers, the subscribers may insist upon the terms of subscription. The subscribers are not bound by any special undertaking of the directors, or any portion of them, beyond or aside of the powers conferred by the terms of the deed or contract of association.1

2. And the association is not binding, until the provisions by

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Dance v. Girdler, 4 Bos. & P. 34. See Gittings v. Mayhew, 6 Md. 113.

• Williams v. St. George's Harbor Co., 2 De G. & J. 547; s. c. 4 Jur. N. S. 1066.

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1 Londesborough ex parte, 27 Eng. L. & Eq. 292; s. c. 4 De G. M. & G. 411; Ex parte Mowatt, 1 Drewry, 247.

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