at such conduct in other members of the governing body, and do not make use of the powers vested in them by the act, to prevent the ill consequences arising from the confederacy, &c. (q). 334. (2dly.) Of the liability of the directors to the world in general, in regard of acts done by them on behalf of the company. The act usually provides that they shall not be personally responsible for acts legally done by them as directors. (r) This protection cannot of course be construed to extend to any wilfully tortious act of the directors, nor to cases where they voluntarily take upon themselves to act beyond the scope(s) of their statutory powers as directors, or where, though the matter lies within the general limits of their authority, yet the circumstances of the case show them to have acted in their individual characters, and not in their official capacity. (t) SUB-SECT. 4.-Of the Officers, (u) Servants, &c. of the Company. 335. Under the usual provisions of a railway act, (q) Charitable Corporation v. Sutton, 2 Atk. 400. (r) As to provisions of Companies Clauses Consolidation Act (8 Vict. c. 16) on this point, see act, s. 100. (s) A director however is not, it seems, personally liable in such a case, where the other side has the same knowledge of the laws and constitution of the company as the director himself; Tyrrell v. Woolley, 1 M. & Gr. 820, per Bosanquet, J. (t) See Tyrrell v. Woolley, 1 M. & Gr. 822; Bult v. Morrell, 12 A. & E. 748; Fox v. Frith, 10 M. & W. 131; Hancock v. Hodgson, 4 Bing. 269; Dewers v. Pike, Mur. & H. 131. (n) As to accountability of officers under Companies Clauses Consolidation Act, (8 Vict. c. 16,) and remedies to enforce same, &c., see act, ss. 109-114, post, App. the general power of appointing and dismissing all officers, servants, &c., and of determining the amount of their remuneration, is vested in the directors. Generally speaking, the officers, servants, &c. of a railway company, would seem to have the same rights and to be subject to the like liabilities as any ordinary person standing in the same position. In certain respects, however, the liabilities of the officers, &c., of railway companies are more extensive, inasmuch as for particular breaches of duty they are liable to be punished criminally. (x) And this extends generally to all persons employed on the railway. SUB-SECT. 5.-Of Bye Laws. 1. Extent of Power of making Bye Laws. 336. 1st. Extent of power of making bye laws. (y) In general a railway act empowers the company to make bye laws and regulations for the management of the undertaking, the government of its officers and servants, &c. This gift of an express power implies a negative, viz. that they shall not make bye laws in other cases. (z) Independently therefore of (3) See statute 3 & 4 Vict. c. 97, ss. 13, 14, and statute 5 & 6 Viet. c. 55, ss. 17, 18, Appendix, and post, Cap. 6. (y) As to power of making bye laws, &c. under Companies Clauses Consolidation Act, (8 Vict. c. 16,) see act, ss. 124-127, post, App.; under Railways Clauses Consolidation Act, (8 Vict. e. 20,) see act, ss. 108-111, post, App. (z) Child v. Hudson's Bay Company, 2 P. Will. 209. See also Calder and Hebble Navigation Company v. Pilling, 14 M. & W. 76; there it appeared that the company had a power any objection on the score of contravening their act of parliament, a railway company cannot, it should seem, under the usual provisions of a railway company on this head, make a bye law for altering what is a fundamental part of the constitution of the company, such as the amount of capital, the number or value of the shares, &c. (a) 337. 2nd. Of the requisites of bye laws. In the first place, they must be within the scope of the company's authority; 2dly, they must be under the common seal of the company, and duly published according to the provisions of the company's act; 3rdly, they must not be repugnant to the general law of the land, or the provisions of the (6) company's under an act of parliament to make bye laws, &c. for the good government of the company, and for the good and orderly using of the navigation, &c., and also for the well governing of the bargemen, &c. connected with it, &c.; it was held that the act did not authorize the company to make a bye law prohibiting navigation on the canal on Sundays, and that such bye law was illegal and void. (a) See Smith v. Goldsworthy, 4 A. & E. N. S. 430. See also judgment of Vice-Chancellor in Ward v. Society of Attornies, 1 Coll. 370. (b) For an instance of this, see Report of Officers of Railway Department for 1842, p. xviii. There it appeared that a company had made a regulation, by which, amongst other things, the quantity of luggage allowed to be taken free of charge by third class passengers was limited to fourteen pounds, being twenty-six pounds less than the minimum prescribed by the company's act. On the attention of the directors being called by the railway department of the Board of Trade to the illegality of this part of the regulation, an assurance was given that the regulation, which was stated to have been introduced through inadvertence, should be immediately corrected. act; and 4thly, they must be laid before (c) the Board of Trade in pursuance of the statute 3 & 4 Vict. c. 97, s. 8, who have power to disallow the same. SUB-SECT. 6.-Of Registration. (d) 1. Of the Formation of a Register of the Shareholders. 2. Of the Registering the Proceedings of the Company, &c. 338. 1st. The formation of a register of the proprietors is a (e) duty invariably imposed on a railway company by their act of incorporation; consequently for any refusal, express or implied, to register a bonâ fide (ƒ) holder of shares, an action, it is conceived, lies against the company at the suit of such holder. (g) To sustain such an action, however, a party ought, it seems, to be prepared to prove his title to the shares, in respect of which he claims to be registered. (h) If, at the time of the (c) See post, Cap. 6, and statute 3 & 4 Vict. c. 97, ss. 8, 9, 10, Appendix. (d) As to provision on this head in Companies Clauses Consolidation Act, (8 Vict. c. 16,) see act, ss. 9, 10, post, App. (e) Mandamus held to lie to canal company to enter probate of will of deceased shareholder; Rex v. Worcester Canal Company, 1 M. & Ry. 529; S. C. 7 B. & C. 632, nom. Ex parte Horne. (ƒ) As to what not sufficient proof of a party having taken shares in a company malâ fide, see Daly v. Thompson, 10 M. & W. 309. (g) It might however be safer to proceed against the registrar or other officer of the company, whose duty it was to register the complainant, and who was the immediate party refusing; Daly v. Thompson, 10 M. & W. 309. (h) Daly v. Thompson, 10 M. & W. 309. plaintiff tendering his shares for registration, the number of shares authorized by the act are already entered upon the register, and the register is consequently full, this is an answer to the action; provided, that is to say, that the register has been properly filled, as otherwise it would be allowing the company to take advantage of their own misconduct. (i) The party's proper remedy in such a case would seem to be to bring his action against the original managers of the undertaking prior to the passing of the act, for improperly issuing more than the contemplated number of shares. (k) 339. The company are in general required by their act not simply to form a register of the proprietors, in the first instance, but likewise to keep it up by inserting therein the names of all persons who from time to time become entitled to shares in the undertaking. () To obviate the difficulty of ascertaining who those parties are, certain forms are prescribed to compel them to come forward, and until they comply with those forms, they are not entitled to share the profits. (m) The provisions on this head being obviously intended for the convenience and security of the company, they do not affect the property in the shares, nor the liabilities; consequently there is nothing in them to hinder the com (i) Daly v. Thompson, 10 M. & W. 309. (k) Dict. arg., ibid. (See provisions of Companies Clauses Consolidation Act (8 Vict. c. 16,) on this head, s. 15, post, App., and sect. 18, ib. (m) Judgment of Lord Chancellor in Fyler v. Fyler, 2 Railw. Cas. 875. |