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but every such shareholder shall, in respect of such monies, subject as after mentioned, be and continue liable, as he would have been if the said company had not been incorporated; and thereupon it shall be lawful for the said company, and they are hereby empowered, as follows: that is to say,
1. To use the registered name of the company, adding thereto " registered."
2. To have a common seal, with power to break, alter, and change the same from time to time, but on which must be inscribed the name of the company.
3. To sue and be sued by their registered name in respect of any claim by or upon the company upon or by any person, whether a member of the company or not, so long as any such claim may remain unsatisfied.
4. To enter into contracts for the execution of the works and for the supply of the stores, or for any other necessary purpose of the company.
5. To purchase and hold lands, tenements, and hereditaments in the name of the said company, or of the trustees or trustee thereof, for the purpose of occupying the same as a place or places of business of the said company; and also (but nevertheless with a license, general or special, for that purpose, to be granted by the Committee of the Privy Council for Trade, first had and obtained) such other lands, tenements, and hereditaments as the nature of the business of the company may require.
6. To issue certificates of shares.
7. To receive instalments from subscribers in respect of the amount of any shares not paid up.
8. To borrow or raise money within the limitations prescribed by any special authority.
9. To declare dividends out of the profits of the concern.
10. To hold general meetings periodically, and extraor
dinary meetings upon being duly summoned for that pur
11. To make from time to time, at some general meeting of shareholders specially summoned for the purpose, byelaws for the regulation of the shareholders, members, directors, and officers of the company, such bye-laws not being repugnant to, or inconsistent with, the provisions of this act, or of the deed of settlement of the company.
12. To perform all other acts necessary for carrying into effect the purposes of such company, and in all respects as other partnerships are entitled to do. And the said company are hereby empowered and required
13. To appoint from time to time, for the conduct and superintendence of the execution of the affairs of the company, a number of directors, not less than three, for a period not greater than five years, with or without eligibility to be re-elected at the expiration of the term, as may be prescribed by any deed of settlement or byelaw.
14. To appoint and remove one or more auditors, and such other officers as the deed of settlement under which the company shall be constituted may authorise. Subject, nevertheless, with respect to all such powers and privileges, to the provisions of this act, and subject also to the provisions of the deed of settlement of the company, or any other special authority. Provided always, with regard to any company for executing any bridge, road, cut, canal, reservoir, aqueduct, waterwork, navigation, tunnel, archway, railway, pier, port, harbour, ferry, or dock, which cannot be carried into execution without obtaining the authority of Parliament, that, on the complete registration of any such company, and before such company shall have obtained its act of incorporation, or other act whereby the authority of Parliament shall be granted for executing such
work, it shall not be lawful for any such company, or the directors or officers thereof, to exercise the herein beforementioned power to enter into contracts otherwise than conditionally upon obtaining such act; or to exercise the power to purchase and hold lands as aforesaid; or to exercise the power to receive instalments from shareholders beyond the sum or percentage necessary to be deposited, in compliance with the Standing Orders of either House of Parliament, or such other sum as may be requisite for obtaining the act of incorporation, or other act for granting the authority of Parliament to execute such work; or to exercise the power to borrow money, as aforesaid; or to exercise the power to declare dividends, as aforesaid: and, subject to these lastmentioned exceptions, all the powers by this enactment herein before given to any company completely registered, except the general power to perform all acts necessary for carrying on the business of the company, may be exercised as fully by any such company so completely registered, as by any other company so completely registered. Provided always, that it shall be lawful for any such company to perform all acts which may be necessary for obtaining an act of incorporation, or other act for obtaining the authority of Parliament to execute its works as aforesaid, anything herein contained to the contrary notwithstanding; and that, upon obtaining such act of incorporation, or other such act as aforesaid, or at the time of the coming into operation of such act as shall be thereby appointed, all the powers which any such company shall obtain by virtue of this act, and all the provisions and regulations of this act which shall apply to such company, shall cease and determine, except so far as shall be otherwise provided by such act of incorporation or other such act as aforesaid."
The portions of the foregoing section printed in italics are expressly declared by the proviso to be inapplicable to railway companies (d), and they may therefore be passed by without further comment; but, on the construction of the remaining portions of the section, the following observations seem to arise:- It is enacted, that, on the complete registration of any company, "such company, and the shareholders therein," are incorporated; and a company, when registered completely, is not only authorised, but required, to appoint directors and auditors: and by other sections the directors are required to manage the affairs of the company, and to appoint the officers (e); so they must not be interested in contracts (f); and they are also required to prepare certain periodical accounts (g).
It soon became a very much disputed question whether these and the numerous provisions, as to the registering of shareholders (), the making of bye-laws (i), the enforcing of judgments (k), the holding of public meetings (1), and other equally important subjects, were applicable to railway companies: and it is obvious, that, as the 2nd section of the act (m), provides, that, "except as thereinafter specially provided," the act shall not refer to railway companies which cannot be carried into execution without obtaining the authority of Parliament, great doubts were reasonably entertained as to the true construction of the statute. At length the Court of Exchequer decided (n), that the
(d) The powers 4 and 7 may be exercised to a limited extent, as is shewn by the proviso.
(e) Sect. 27, post, Appendix, 52. (f) Sect. 29, post, Appendix, 53. (g) Sect. 39, post, Appendix, 55. (h) Sect. 26, post, Appendix, 51; s. 49, post, Appendix, 57.
(i) Sect. 47, post, Appendix, 57.
(k) Sects. 66 and 67, post, Appendix, 63.
(1) Sect. 27, post, Appendix, 52. (m) Sect. 2, post, Appendix, 37.
(n) Young v. Smith, 15 M. & W. 121; which has been since recognised by the Court of Queen's Bench, in Lawton v. Hickman, 10 Jur. 543; 4 Railway Cases, 336.
26th section, which makes void all contracts for the sale of shares by unregistered shareholders (o), does not apply to railway companies requiring an act of Parliament.
This decision affords, to some extent, a key to the construction of the statute. Alderson, B., observes on this point, "I should conjecture from the statute that the intention of the Legislature was to make certain provisions for railway companies and others, until the 25th section, in which it is finally provided that railway companies, &c., having obtained the authority of an act of Parliament, shall be bound by that; and after that section the Legislature proceeds to make regulations for the transfer of shares of joint-stock companies of a different description; for in all the clauses in the statute subsequent to the 25th, there is no reference made to railway or other companies which are excepted out of the interpretation clause. I therefore think, that the object of the Legislature was to make certain general provisions down to the 25th section, and thenceforth further special provisions for the companies not specially provided for before. The 26th section, therefore, does not apply to a railway company which requires the authority of an act of Parliament and has not got one; and this plea is consequently bad, inasmuch as the contract between the parties was for the transfer of shares in a railway company which was excepted from the operation of
(0) See the opinion expressed as to the construction of the 26th section, post, 122, n. (h); also, post, Appendix, 52, n. (b). It will be easily per
ceived that these and the other notes appended to the statute, were all written before Young v. Smith was decided.