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tion of its individual members, a certain amount of capital, divided into a given number of transferable shares. As a corporate body, a railway company enjoys all the ordinary incidents of such a body, (subject, of course, to such express provisions on the subject as are contained in their act of incorporation, and to the limitations thereby engrafted on the general law of corporations); viz. 1st, to have perpetual succession; 2nd, to sue or be sued, grant or receive &c., by its corporate name; 3rd, to purchase lands, and hold them for the benefit of itself and its successors; 4th, to have a common seal, for a corporation being an invisible body, cannot manifest its intentions by any personal act or oral discourse, it therefore acts and speaks only by its common seal; 5th, to make bye laws or private statutes for the better government of the corporation, which are binding on itself, unless contrary to the laws of the land, and then they are void. (d)

In order however to develope fully the force of the above definition, let us proceed to consider its main branches somewhat more in detail. For this purpose, a railway company may be regarded in three principal points of view; in regard, 1st, of its external relations; 2ndly, of its internal relations; 3rdly, of its capital stock.

(d) Bl. Com. vol. i. 475, 476.

SECT. 2.-Of a Railway Company viewed in its
External Relations.

Sub-Sect. 1.-Of the Mode of Action prescribed by its Act to the Company.

2. Of the Powers, Capacities and Incapacities of the


3. Of the Rights of the Company, incidental to such

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SUB-SECT. 1.-Of the Mode of Action prescribed to a Railway Company.

1. Of the Organs through which it must act.


Of the Forms to be observed by the Company in acting, viz. in regard of Contracts, &c.

73. First, Of the proper organs through which a railway company may act as such. These in general are threefold: 1st, the general assembly of the company; 2ndly, the board of directors; 3dly, a duly constituted agent, &c.

74. 1st, The resolution of a public assembly of the company, in matters on which it is competent for the assembly to resolve, operates as the act of the company, and is accordingly binding on the entire corporate body.

This, however, supposes that in all substantial respects the resolution pursues the requisitions of the act by which the company is constituted, as, for instance, in respect of time, place, persons, &c. If, therefore, the meeting, at which such resolution

is passed, is improperly convened; or if such meeting consist not of a proper number of proprietors, or of members not properly qualified; or the votes at such meeting are not taken according to the method prescribed by the act; the resolution cannot be taken to operate as the public act of the company in its politic capacity. (a) Primâ facie, however, it must, it seems, be presumed, at any rate as against the company, that the forms required by the act have been complied with, and therefore it lies upon it, where it seeks to avail itself of any default in this respect, to give strict proof thereof. (b) Not only must the resolution itself be duly taken, but likewise where ulterior steps are necessary to give it effect, those steps must either appear to be prescribed by the resolution itself, or be shown to fall within the scope and purview of the authority of the parties to whom it is left to carry out the resolution. (c)

75. 2d. The acts of the directors within the scope of their authority are no less binding on the company than the acts of a general assembly. As a general rule, however, this supposes that a sufficient number of directors to constitute a quorum concur in the act, and that those so concurring are duly elected and qualified. If these requisites are satisfied, the fact of there being vacancies in the directory, which have not been filled up pursuant to the authority

(a) Hill v. The Manchester and Salford Water Works Company, 5 B. & Ad. 874; Clarke v. Imperial Gas Light and Coke Company, 4 B. & Ad. 324.

(b) Clarke v. Imperial Gas Light and Coke Company, ubi supra.

(c) See cases cited in note (a) supra.

given for that purpose to the directory, would seem to afford no ground for impugning (d) the validity of a transaction. And even supposing the directors not to be duly elected or qualified, it may be questioned whether, if the shareholders choose to allow parties to act in the capacity of directors, they have a right to turn round and say that such parties are not duly qualified, &c. (e).

76. 3rd, A railway company may act through the medium of its officers, agents, or servants; and the acts of these parties, where they fall within the scope of their authority, are as much the acts of the company as if done under the express authority of a general meeting. The authority for this purpose must, however, in general, be given by a deed, and under the common seal of the company. (f)

77. Secondly, Of the forms to be observed by the company in acting; and herein, 1st, of the name, 2ndly, of the common seal.

78. And 1st, Of the name of the company. In incorporating a railway company, the legislature invariably bestows on it a name, by which it may be known and distinguished. Such name is the very being of its politic capacity, the knot of its combination, without which it cannot perform its corporate

(d) See Thames Haven Dock and Railway Company v. Rose, 4 M. & Gr. 552; S. C. 21 Law Journ. C. P. 90.

(e) Thames Haven Dock and Railway Company v. Hall, 5 M. & Gr. 287, judgment of Tindal, C. J. As to provisions of Companies' Clauses Consolidation Act on this point, see Act, s. 99, post, App.

(f) See Yarborough v. The Bank of England, 16 East, 6; Smith v. The Birmingham Gas Company, 1 A. & E. 528, and cases there cited; Thames Haven Dock and Railway Company v• Hall, ubi supra.

functions. (g) It is in this name consequently that it must take and grant, sue and be sued, and generally do all corporate acts. (h)

79. 2dly, Of the common seal of the company. It is one of the incidents of a railway company as a corporate body to have a common seal, which constitutes as it were its mouthpiece and organ, and by which alone consequently the company as such can in general act or speak. This rule does not apply to a resolution of the company, which is not intended of itself to be operative, but only to serve as the groundwork of some ulterior act on the part of the company; but is enough in such a case if the latter only is under seal. (i)

The above rule must moreover be understood as subject not only to certain established exceptions which have gradually engrafted themselves on the general law of corporations, and which would seem to apply as well to the case of a railway company as of any other species of corporate body, but likewise to such as are usually made by the company's act of incorporation. To these exceptions, however, we shall have occasion hereafter more particularly to advert.

Although a railway company cannot in general perform any corporate function, except by the instrumentality of its common seal, still the concur

(g) Gilb. Hist. C. P. 225.

(h) See Reg. on the prosecution of the Mayor, &c. of Maidenhead v. Great Western Railway Company, 8 Jur. 107; S. C. 1 D. & L. P. C. 874; 5 A. & E. N. S. 597; Reg. v. West, 1 A. & E. N. S. 826; S. C. 2 R. Cas. 613.

(i) Clarke v. Imperial Gas Light and Coke Company, 4 B. & Ad. 315.


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