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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. (ƒ)
77. Secondly, Of the forms to be observed by the company in acting; and herein, Ist, 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.
rence of the company need not be shown in each particular act of sealing; but it is enough if the seal be proved to be applied by the parties having the legal custody of it, that is, under the general provisions of a railway act, the directors. (j)
SUB-SECT. 2. Of the Powers, Capacities, and
1. Of the general Nature and Extent of the Powers of the Company.
2. Of their Suspension, Cesser, or Determination. 3. Of their Revival.
80. I. Of the nature and extent of the powers of a railway company.-Considered in regard of their nature and extent, the powers of a railway company may be classed under two heads, 1st, principal powers, and 2ndly, accessory or incidental powers, which are only given for the sake of the former.
81. RULES OF CONSTRUCTION. Before descending to a more exact investigation of either class of powers, it may be proper to say a few words of the rules of construction, applicable to the interpretation of the powers of a railway company generally. Railway acts then, as we have already had occasion to remark, are to be regarded as parliamentary contracts, made by the legislature on behalf of all the persons interested in the performance of any thing to be done under them. (k) It follows, that the rail
(j) See Hill v. Manchester and Salford Water Works Company, 5 B. & Ad. 866.
(k) Blakemore v. Glamorganshire Canal Company, 1 My. & K. 154.
way companies constituted by those acts are to be kept strictly within the limit of the powers for which they have bargained with the legislature. Every owner of land or other property, whose interests are to be affected by the exercise of such powers, has a right to require that they shall be rigidly and strictly carried into effect as regards the subject-matter, the time, and the mode of their execution. He has a + right to insist that only that precise portion of his property shall be dealt with by the company that is specified in the act, and that too for the purposes and in the manner authorized by the act, and in case of a company going beyond their powers in any of these respects, he may apply to a Court of Equity to restrain them by injunction. (1)
82. PRINCIPAL POWERS. After this brief notice of the general rules of construction applicable to the class of powers in question, we may now proceed to advert more particularly to their nature and distinctive peculiarities.
First, then, of what we have above termed PRINCIPAL POWERS. The fundamental powers usually given by the legislature to a railway company, are those of making and maintaining a railway or railways, (as the case may be), with all proper works and conveniences in the course and over the lands prescribed by the act of parliament. The above line of railway in general is not to exceed a given breadth, unless where a greater breadth is required for cuttings or embankments. The company, however, are not to be precluded from carrying out the
(1) Lee v. Milner, 2 Y. & Coll. 618, judgment of Alderson, B.
railway in the parliamentary line by reason of any unintentional error or omission in the description of the property given in the schedule, but may apply to two justices to certify to such error or omission arising from mistake. (m) The effect of the certificate, when granted, is to rectify the mistake or omission in the schedule to the act itself, and to extend the operation of the statute to the several lands, &c. included in the certificate, so as to place them precisely in the same situation as if they had been inserted in the original schedule of the act. (n) Where the justices certify for a house, a yard and garden may pass under that description, where such yard and garden are in point of fact parcel of and included in the description of the house, and occupied therewith as such parcel. (n) Though the jurisdiction to certify is given to the justices in case of a dispute, as to any mistake or omission, &c., a certificate, granted in pursuance of the above power, is not bad for omitting to aver expressly the existence of such dispute, the certificate itself, and the fact of the application for it, showing a dispute, and being therefore in themselves evidence of the jurisdiction. (n)
83. As the above power is only to make, &c. a railway in a particular line, it cannot of course be taken to authorize any departure from that line. It would not therefore per se justify the attempting a deviation from the line prescribed by parliament.
(m) As to analogous provision of Railways Clauses Consolidation Act (8 Vict. c. 20), see act, s. 7, post, App.
(n) Taylor v. Clemson, 2 A. & E. N. S. 978; S. C. 3 Railway Cas. 65.