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Until the special act has been obtained, the company does not come into existence, and the partnership relation between the subcribers is not constituted. In the meantime they are not partners, but merely persons associated for the purpose of obtaining an act to create a corporation for the prosecution of a certain undertaking (a). When the act is obtained, the company is incorporated, and the subscribers and others applying for shares may become its members by registration. Companies incorporated by special act prior to the 8th of May 1845, are governed exclusively by their special acts; but all joint-stock companies in Scotland, incorporated, or to be incorporated, by Act of Parliament, for carrying on public undertakings since that date, are governed by their special acts, in combination with the provisions of the general Act which we are now considering (preamble) (b).

The capital of a company formed under this general Act is Distribution of capital. divided into shares of the number and amount prescribed in its special act, and they must be numbered in arithmetical progression (sec. 6).

As to who are to be deemed shareholders, or, in other words, Shareholders. what constitutes membership, the following are the statutory provisions: "The word shareholder shall mean shareholder, proprietor, or member of the company' (sec. 3). Every person who shall have subscribed the prescribed sum or upwards to the capital of the company, or shall otherwise have become entitled to a share in the company, and whose name shall have been entered in the register of shareholders, shall be deemed a shareholder of the company' (sec. 8). This register of shareholders is a book which the com- Register of pany is required to keep, and in which must be entered from time to time the names of the shareholders, together with the number of shares they are entitled to hold. The names must be in alphabetical order, and the shares must be distinguished by their numbers. The book must be authenticated by the company seal, adhibited at the first ordinary meeting, or at the next, and so forth from time to time (sec. 9). When so authenticated, it is declared to

(a) See chap. x. p. 76.

(b) When a part of a Scotch line of railway runs into England, the company is brought under the provisions

of the corresponding English general
Act 8 and 9 Vict. c. 16, quoad such
part of the line. See Wilson v. Cal.
Ra., 5 Ex. 822.

shareholders.

Shareholders' address book.

Certificate of proprietorship.

Evidence of membership

against shareholders.

Register prima facie evidence.

be prima facie evidence of membership against a person whose name stands registered therein (sec. 29). And creditors have a right to its inspection (sec. 38). The company must also keep a 'shareholders' address book,' which may be perused by any shareholder at convenient times (sec. 10).

Any shareholder is entitled on demand, and on payment of a small fee, to a certificate of proprietorship from the company, having the common seal affixed (sec. 11); and provisions are made for having it renewed when worn out or damaged (sec. 13). This certificate is declared to be prima facie evidence of the title of the shareholder, and of his executors, administrators, successors, and assigns, to the share therein specified; but the want of this document does not prevent a sale of shares by the holder (sec. 12).

These statutory provisions appear to have for their object, 1. The supplying of evidence of membership against persons sued as shareholders; and 2. The furnishing of evidence of proprietorship in favour of parties claiming the rights of members.

(1.) Evidence of membership as against persons sued as shareholders.

The register is prima facie evidence of membership against any person whose name it bears. But to entitle it to this statutory privilege, it must have been kept and authenticated in accordance with the statutory provisions contained in sec. 9. Hence it was rejected as prima facie evidence in favour of the company, where it did not contain the correct number of shares belonging to each person, and the amount of subscriptions paid upon such shares (a). A rough share-book is not entitled to the statutory privilege (b). And the register, however accurately kept, is not prima facie evidence that one whose name it bears was a shareholder at any time prior to the date when the seal was affixed (c). But it will be received as prima facie evidence if duly sealed, though it may not have been kept with perfect regularity, and may in some respects be inaccurate and imperfect (d). If the register is in several

(a) Cal. and Dumb. Ra. Co. v. Lockhart, 1855, 17 D. 917.

(b) Birkenhead, Lancashire, Ra. Co., 4 Ex. 426; Cheltenham and Grt. West. Mid. Rail. Co., 9 C. and P. 55.

(c) Ibid.

(d) Whitehaven Ra. Co. v. Bain, 1850, 12 D. 829, aff. 3 House of Lords Cases; 7 Bell's Ap. 79; London Gr. Jun. Ra. Co., 1 Q. B. 271, 2 M. and

volumes, the last of which contains a recapitulation, it is sufficiently authenticated by the seal being affixed to such recapitulation (a). And if the seal be de facto affixed, it is not necessary to prove the time or place at which, or the authority by which, it was appended (b).

conclusive

The register, though prima facie, is not conclusive evidence of Register not membership against a party whose name appears thereon. It is evidence. provided by sec. 8, that a person shall be deemed a shareholder, if by subscription or otherwise he has become entitled to a share in the undertaking, and has been entered in the register. Hence a party whose name has been registered, may rebut the prima facie evidence so created, by showing that his name was inserted on the register, while he had not acquired the right to be a shareholder (c). But if a person has dealt with the company as a shareholder, and has been registered as such, he cannot set aside the effect of such registration, on the ground that certain conditions or formalities strictly requisite to confer on him the right to become a shareholder had not been observed. Such objections are personal to the company, and will in any view be held as waived by the conduct of the party (d).

the only

The register is not the only evidence by which a party may be Register not proved a member at the instance of the company. The statute, evidence. though declaring the register to be prima facie evidence, nowhere excludes other evidence. Hence, when the register, from its irregular character and want of proper authentication, may not be prima facie evidence, it is still admissible as evidence pro tanto to be supplemented by evidence prout de jure (e). But it should seem that a party cannot be made liable as a shareholder to the company, when his name has not been registered at all (ƒ).

G. 606; Birmingham Ra. Co., 1 Q. B. 256; Southampton Dock Co., 1 Man. and Gr.448; Gr. Nor. Ra. Co. v. Inglis, 13 D. 1315, aff. 1852, 1 Macq. 112.

(a) Grt. Nor. Ra. Co. v. Inglis, 1851, 13 D. 1315; aff. 1852, 1 Macq. 112.

(b) North-West. Ra. Co., 5 Ex. 855; and see Cal. and Dumb. Ra. Co. v. Lockhart, 1855, 17 D. 917.

(c) Waterford Ra. Co., 8 Ex. 279;

Carmarthen Ra. Co., 1 Fos. and Fin.
282. See per
Lord President in
Cal. Ra. Co. v. Lockhart, 1854, 17
D. 30.

(d) Sheffield and Man. Ra. Co., 7
M. and W. 574; Thomson v. Fullar-
ton, 1842, 5 D. 379.

(e) Cal. and Dumb. Ra. Co., 1854, 17 D. 25 and 917.

(f) See as to this under the head 'Calls.'

Evidence of membership in

(2.) Evidence of membership in favour of parties claiming the favour of share rights of shareholders.

holders.

Certificate.

Register.

Compulsitors to register.

The certificate of proprietorship is prima facie evidence of the title of the person whose name it bears; but as the want of such certificate is not conclusive against one claiming to be a shareholder, if he can establish that character aliunde, so the mere possession of the certificate is not conclusive evidence in his favour, but may be rebutted by proof prout de jure.

The entry of a party's name on the register, as it affords prima facie evidence against him if sued for calls, would also seem to be good evidence in his favour when claiming dividends or other rights of a shareholder. But since it is not declared that those only are to be deemed shareholders whose names appear on the register, it should seem that persons whose names are not on the register may vindicate their rights of membership by evidence prout de jure (a).

A person entitled to shares may compel the company to register him as a shareholder. This is done in England by mandamus (b) ; in Scotland the remedy would seem to be by action of declarator, with conclusions ad factum præstandum. Refusal or unreasonable delay to register a party entitled to shares, will ground an action of damages against the company (c).

(a) See Great Nor. Ra. Co. v. Inglis, 1851, 13 D. 1315; aff. 1 Macq. 112.

(b) R. v. General Cemetery Co., 6 E. and B. 415; Copeland v. NorthEast. Ra. Co., 6 E. and B. 277.

(c) Catchpole v. Ambergate Ra. Co., 1 El. and Black. 111; Stewart v. Anglo-Cal. Gold Min. Co., 18 Q. B. 736.

BOOK II.

CONSTITUTION AND MANAGEMENT OF
PARTNERSHIPS AND COMPANIES.

CHAPTER I.

GENERAL RULES.

THE purposes for which a

for which a partnership or company is formed, the manner in which it is to be managed, and the machinery to be employed in the management, are generally laid down with tolerable clearness in the instrument of formation, whether this be partnership articles, deed of settlement, etc., or Act of Parliament, charter, or memorandum and articles of association. These must be rigidly adhered to while they remain in force; and every attempt to depart from them may be effectually resisted by any partner or shareholder who deems himself aggrieved (a).

Unless it be otherwise provided in the contract, the powers of Private firms. the members of an ordinary partnership are in all respects equal; and therefore any attempt on the part of some of the partners to exclude others from the management will be at once checked on application to the Court (b). Indeed, so jealously are the rights of

(a) See, as illustrative of this, Maxton v. Brown, 1839, 1 D. 367; Fleming v. Campbell, 1845, 7 D. 935; Williamson v. North Brit. Ra. Co., 1846, 9 D. 255; Brown v. Adam, 1848, 10 D.744; Balfour's Trust v. Edin. and Northern Ra. Co., 1848, 10 D. 1240; Wedderburn v. Scot. Cent. Ra. Co., 1848, 10 D. 1317; National Ex. Co. v. Glasgow and Ard. Ra. Co., 1819,

11 D. 571; Hill v. Edin. and Glasgow
Ra. Co., 1849, 21 Jur. 445; Graham
v. North Brit. Bank, 1849, 11 D. 1165;
Wilson v. Glasgow and S.-W. Ra. Co.,
1850, 13 D. 227; Pollock v. Ritchie,
1851, 13 D. 640; Blackburn v. Stewart,
1851, 13 D. 1243; Western Bank v.
Bairds, 1862, 24 D. 859.

(b) Dickson v. Dickson, 1323, 2 S.
413; Rowe v. Wood, 2 Jac. and W.

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