declaration in such action, and for the amount and nature of the evidence to be given at the trial.

The production and register of the shareholders is to be primâ facie evidence of the defendant being a shareholder, and of the number and amount of his shares.

By the 15th section it is enacted, that when a deed of transfer has been executed, it shall be delivered to the secretary and kept by him; and the secretary shall enter a memorial thereof in the register of transfers, and endorse such entry on the transfer deed, and, on demand, either deliver a new certificate to the purchaser, or make and sign an indorsement of the transfer on the back of the old certificate, which indorsement is to have the same effect as a new certificate, and until the deed of transfer has been so delivered to the secretary, the vendor of the share is to continue liable for calls made on the share. And no shareholder is to be entitled (s. 16) to transfer his share after any call has been made in respect thereof, until he shall have paid all calls for the time being, due on every share held by him.

The general scope of the railway acts is to treat the shareholder who takes by transfer, as identified with his share, and as having nothing to do with the company either with respect to rights or liabilities before he becomes or after he ceases to be a shareholder, the express provisions of the acts giving remedies by action, by forfeiture, and by withholding dividends against those who hold the shares at the time the call is payable, and the absence of express provisions continuing the liability of a shareholder, of whose transfer a memorial is entered, show that the acts do not consider the debt as arising till the day appointed for payment. "The duty of a shareholder who takes by transfer to pay a call, is the creature of the act the act requires the payment to be made at the time appointed by the directors; at that time, and not before, the duty arises, and it is a duty which by the terms of the act is cast on the owner for the time being."(1)

The shares are made subject to forfeiture in case of the non-payment of calls, and may be sold by the company. (ss. 29-35.)

Mandamus to make calls.-The Court of Queen's Bench will, under certain circumstances, issue a mandamus to an incorporated company, directing them to make calls on the shareholders. In the case of the Queen v. the Victoria Park Company, Lord Denman observed, in deliver

(4) Tindal, C. J., Aylesbury Rail. Co. v. Mount, 5 Sc. N. R. 147; 2 Rail. cas. 679; 8 Sc. N. R. 586, s. c. in error; 2 Dowl. N. s. 143;

4 M. & Gr. 651; 2 M. & Gr. 606; 2 Rail. cas. 504, 869, 872.

ing the judgment of the court, that if a corporation had a power of creating a future corporate property, from time to time, out of the private assets of its individual members, and contracts were made with the body corporate on the faith that an honest exercise would be made of such power when necessary, and it were clearly established that the members were evading the payment of their debts, and the due satisfaction of judgments recovered against them, on the ground that they had no corporate assets actually in possession, the Court of Queen's Bench would not perhaps go beyond the principle which regulates its extraordinary interposition by mandamus, if it compelled them to exercise the power of making calls with which the legislature had trusted them, and so put themselves in the possession of funds to answer the demands of their creditors. (m) As the latter have, however, by all the more recent acts of incorporation, power to proceed against shareholders who have not paid up their calls, in case the property of the company is insufficient to meet their demands, (post 551,) the proceeding by mandamus will generally be found to be unnecessary.

Of the power of the directors and committees of the directors to bind the Company.-The directors are authorized to appoint a select number of their body, as a committee, to do any acts relating to the affairs of the company, which the directors themselves could do; and the directors and committees have a general power of meeting and adjourning for the transaction of business. The prescribed quorum must be present at every meeting; a chairman must be appointed, and all questions determined by a majority of votes; and in case of an equal division of votes, the chairman is to have the casting vote. (ss. 92-96)

These committees and the directors are clothed with a general power of binding the company both by deed under the common seal, and by simple contract, without the use of the common seal. Any powers which may be granted to the committee to make contracts, and the power of the directors to make contracts on behalf of the company, may be lawfully exercised as follows:-With respect to any contract which if made between private persons would be by law required to be in writing and under seal, the committee or the directors may make such contract on behalf of the company, in writing and under the common seal of the company, and in the same manner may vary and discharge the same. With respect to any contract which, if made between private persons, would be by law required to be in writing, and signed by the parties to be charged therewith, the com

(m) The Queen v. Victoria Park Company, 1 Ad. & E. n. s. 292.

mittee, or the directors, may make such contract on behalf of the company, in writing, signed by such committee, or any two of them, or any two of the directors, and in the same manner may vary and discharge the same; and with respect to any contract, which, if made between private persons, would by law be valid, although made by parol only, and not reduced into writing, the committee or the directors may make such contract on behalf of the company, by parol only, without writing, and in the same manner may vary and discharge the same. (s. 97.) And all contracts made according to the provisions of the statute in that behalf are to be binding upon the company, and their successors, and all the parties thereto, their heirs, executors, &c., as the case may be, and on any default in the execution of any such contract, either by the compauy or any other party thereto, such actions and suits may be brought either by or against the company as might be brought had the same contracts been made between private persons only. (s 97.)

All acts also done by any meeting of the directors, or by any person acting as director, are to be valid, notwithstanding that it may afterwards be discovered that there was some defect in his or their appointment, or qualification.

Execution against the shareholders.-By the 36th section it is enacted, that if any execution either at law or in equity, shall have been issued against the property or effects of the company, and there cannot be found sufficient property of the company whereon to levy such execution, then such execution may be issued against any of the shareholders to the extent of their shares respectively in the capital of the company not paid up; but it is provided that no such execution shall be issued against any shareholder except upon an order of the court in which the action, suit, or other proceeding shall have been brought or instituted, made upon motion in open court, after sufficient notice in writing to the persons sought to be charged; and upon such motion the court may order execution to issue accordingly, and for the purpose of ascertaining the names of the shareholders, and the amount of capital remaining to be paid up upon their respective shares, any person entitled to any such execution is to be at liberty to inspect, at all reasonable times, the register of shareholders without fee. And it is provided (s. 37) that if by means of any such execution any shareholder shall have paid any sum of money beyond the amount then due from him in respect of calls, he shall forthwith be reimbursed such additional sum by the directors out of the funds of the company.

SECTION II.

CORPORATIONS AT COMMON LAW.

Incorporation at common law.―The sovereign, by virtue of his or her prerogative, exercises the power of creating that peculiar species of entity called a corporation, which may be either sole or aggregate, ecclesiastical or lay, and is called into existence through the medium of a charter of incorporation, which gives it a name, and sometimes prescribes the terms and conditions of its existence. "The name is, as it were, the very being of the constitution, for though it is the will of the king that erects them, yet the name is the knot of their combination, without which they cannot perform their corporate acts, for it is no body to plead and be impleaded, to take and give until it hath gotten a name." (a)

Corporations aggregate.-The effect of a general and unqualified incorporation of two or more persons, at common law, is to create an aggregate body politic, or legal entity, with rights and liabilities completely separate and distinct from the individual existence, rights, and liabilities of its members. (b) This legal entity is, as it has been sagely remarked, without soul or conscience, and without any visible or outward form, and cannot, therefore, be either excommunicated, or outlawed, or arrested. It could only in former times be compelled to answer in an action at law by a distringas against its goods and chattels, and could only appear by attorney, made under its common seal, and if it had neither lands nor goods there was no way of bringing the corporate body either into a court of law or a court of equity. Its debts are, at common law, its own debts, and not the debts of the individual members thereof, and the latter, consequently, are not answerable either in their persons or property for the corporate debts, and if there are no corporate effects whereon to levy judgments and executions obtained against the body corporate, the credi tors must go unpaid. (c) Amongst the powers and privileges possessed by the body corporate from the mere act of incorporation, and without any special provision or stipulation in the charter, is the power of making bye laws for the government of the body politic, subject to the laws of the realm and subordinate thereto, and the power (in the case of ancient

(a) Bac. Abr. (C RPORATIONS.) (C. .) b) Bro. Abr. Bac. Abr. (CORP RATIONS.) Cooch v. Goodman, 2 Ad. & E. N. s. 580.

(c) Bro. Abr. fol. 183-186, fol. 265, pl. 82. Edmunds v. Brown, 1 Lev. 237.

corporations) of electing its own members at corporate meetings,' and appointing its own officers; of suing and being sued in the corporate name; of holding and enjoying property in such name; of purchasing and parting with its possessions, and of acting and speaking through a common seal, which is said to be "its hand and mouth-piece."

Liability ex contractu of the BODY CORPORATE.-The general rule is that all contracts to be binding upon the body corporate at common law, must be made in writing in the corporate name, and authenticated under the common seal, If the contract is made in the name of the head of the corporation, or in the names of the individual members thereof, the corporate body will not be bound by the contract although the common seal has been affixed to it. "If an abbot and all his monks, by their proper names, and not by the name of their incorporation, make an obligation under their common seal, this shall not bind their successors, and the law is the same with respect to a mayor and commonalty." (d)

The affixing of the common seal to the resolutions and contracts of the corporation, must be the act of a majority of those who were present at a regular corporate meeting. Where no special provision is made by the charter concerning the performance of corporate acts, the whole are bound by the acts of such majority, whether the number present at the meeting was a majority of the whole body or not. "Wherever a certain number are incorporated, a major part of them may do any corporate act; so if all be summoned, and part-appear, a major part of them that appear may do a corporate act though nothing be mentioned in the charter of the major part. This is the common construction of charters." (e) The business of the corporation is generally transacted on "charter days," or at specific times, well known to all the members of the corporation, and when that is the case, no notice or summons of the intended meeting need be given to the particular members. But when corporate meetings are held out of the ordinary course, or if business of an unusual or extraordinary character is intended to be transacted at such meetings, notice should be given to the different members of the corporation, in order that they may have an opportunity of being present.

Infancy in the mayor, bailiff, or other head of a corporation, or any incapacity to contract on the part of individual members thereof, does not in any way affect the liability of the corporation in respect of corporate acts. (f)

(d) Bro. Abr. CORPORATIONS, pl. 31. 15 E. 4. 1.

(e) Ld. Hardwicke, Attorney General v. Day,

2 Atk. 213.

(f) Bro. Abr. Corpor. 63, 1 Kyd. 312. Rex v Carter, 1 Cowp. 225.