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whose stock or funds are divided into shares and transferable or made for the purpose of appointing, nominating or authorizing any person to vote as a proxy, commissioner, mandatory or otherwise, at any parish meeting of heritors or proprietors of real or heritable property in Scotland, the stamp duty of sixpence. 19 & 20 Vict. c. 81, s. 1. The 6th section of the act 7 Vict. c. 21, and other stamp acts, are applied to the duties granted by 19 & 20 Vict. c. 81, s. 2 of that act.
The commissioners of inland revenue are prohibited from stamping any instrument appointing a proxy, and a penalty of 501. is imposed on any person making or signing such instrument, or on any person voting as a proxy under such instrument not duly stamped, and every vote or other act done under any such instrument not duly stamped is absolutely void. 7 & 8 Vict. c. 21, s. 7.
The 7 & 8 Vict. c. 21, refers only to powers of attorney whereby proxies are appointed to vote at one particular meeting of a joint stock company, or any adjournment thereof, and not to mere general powers of attorney which remain subject to the stamp duty of 30s. imposed by the 55 Geo. 3, c. 184. Trinity House, Hull v. Beadle, 13 Q. B. 175; 13 Jur. 557; 18 L. J., Q. B. 78.
In lieu of the stamp duty of 17. 10s. payable in respect of Stamp duty any letter or power of attorney or commission, factory, man- on certain date or other instrument in the nature thereof, made for the reduced. sole purpose of appointing, nominating or authorizing any person to vote as a proxy, commissioner, mandatory or otherwise at any one meeting of the proprietors, members or contributors to the funds of any institution established for the purposes of education or charity, or of other persons having the direction or control of the affairs of the institution, the time of holding whereof shall be specified in such instrument, or at any adjournment of such meeting, the stamp duty of sixpence. 24 & 25 Vict. c. 91, s. 26.
The stamp duty of sixpence granted by this act and any Adhesive former act upon a letter or power of attorney, commission, stamps may factory, mandate or other instrument in the nature thereof, be used for proxies. may be denoted by an adhesive stamp to be provided by the commissioners of inland revenue and affixed to the instrument and cancelled by the person signing the instrument by writing his name or the initials thereof upon or across the stamp, together with the date of the day of the meeting for voting at which the instrument is made; but nothing herein contained shall relieve any person from the penalty incurred by making or signing any such instrument on paper not duly stamped, or by voting or attempting to vote under the authority thereof, unless there shall be affixed thereto and cancelled as aforesaid the proper adhesive stamp. Ib. s. 27.
(c) See Table A. post, pl. 42, 43.
The right to demand a poll is a necessary incident or con- Poll.
Provision where no regulations as to meetings (a).
Registry of special resolutions.
sequence to the mode of election by show of hands wherever it is not excluded by special custom. Campbell v. Maund, 5 Ad. & Ell. 879, per Tindal, C. J. All persons qualified to vote, whether present or not at the show of hands, have a right to be admitted to the meeting during such poll, although the members present at the time of the poll being granted resolve that it shall be confined to those present. The exclusion of a person qualified to vote appears to be sufficient ground for impeaching an election. Reg. v. Rector of Lambeth, 8 Ad. & Ell. 356; see Reg. v. D'Oyly, 12 Ad. & Ell. 139; Reg. v. St. Pancras, 11 Ad. & Ell. 15.
The result of a poll when claimed is the legal termination of a meeting. The right to a poll is a common-law right, which is not taken away by mere general words of a statute. White v. Steele, 8 Jur. N. S. 1177.
In order to prove that land was sold by a railway company, it is not sufficient to prove by an auctioneer that he received directions for the sale from one of the directors, and that he received the conditions of sale from the solicitor of the company, by whom he had been employed in former sales by the company, who attended the sale. Some evidence ought to be given to show that the director or the solicitor was authorized by the company to offer the particular land for sale; Moody v. London, Brighton and South Coast Railway Company, 31 L. J., Q. B. 54.
52. In default of any regulations as to voting every member shall have one vote, and in default of any regulations as to summoning general meetings a meeting shall be held to be duly summoned of which seven days' notice in writing has been served on every member in manner in which notices are required to be served by the table marked A. in the first schedule hereto, and in default of any regulations as to the persons to summon meetings five members shall be competent to summon the same, and in default of any regulations as to who is to be chairman of such meeting, it shall be competent for any person elected by the members present to preside.
(a) This is a new provision.
53. A copy of any special resolution(a) that is passed by any company under this act shall be printed and forwarded to the registrar of joint stock companies, and be recorded by him: if such copy is not so
forwarded within fifteen days from the date of the confirmation of the resolution, the company shall incur a penalty not exceeding two pounds for every day after the expiration of such fifteen days during which such copy is omitted to be forwarded, and every director and manager of the company who shall knowingly and wilfully authorize or permit such default shall incur the like penalty.
(a) The 35th section, 19 & 20 Vict. c. 47, did not require the copy to be printed.
54. Where articles of association have been Copies of registered, a copy of every special resolution for special resothe time being in force shall be annexed to or embodied in every copy of the articles of association that may be issued after the passing of such resolution: where no articles of association have been registered, a copy of any special resolution shall be forwarded in print to any member requesting the same on payment of one shilling, or such less sum as the company may direct: and if any company makes default in complying with the provisions of this section it shall incur a penalty not exceeding one pound for each copy in respect of which such default is made; and every director and manager of the company who shall knowingly and wilfully authorize or permit such default shall incur the like penalty.
(b) See 19 & 20 Vict. c. 47, s. 36.
55. Any company under this act may, by instru- Execution ment in writing under its common seal, empower abroad (c). any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place not situate in the United Kingdom; and every deed signed by such attorney, on behalf of the company and under his seal, shall be binding on the company, and have the same effect as if it were under the common seal of the company (d).
(c) This is nearly the same as the 42nd section, 19 & 20 Vict. c. 47.
Rule, that corporation cannot bind their pro
(d) The stat. 19 & 20 Vict. c. 47, s. 41, contained provisions regulating the mode of making contracts on behalf of companies, which are not contained in this act. See also 8 & 9 Vict. c. 16, s. 97. Experience has proved the necessity of drawing up and executing agreements with public companies in a legal, solemn and binding form, and of not relying upon good faith and common honesty. Leominster Canal Navigation Company v. Shrewsbury and Hereford Railway Company, 3 Kay & J. 654.
The general rule is, that a corporation can neither take nor grant but by its proper name of incorporation, though every minute variation in the name will not avoid a grant. Kyd on perty except Corp. 234, 237; Mayor of Carlisle v. Blamire, 8 East, 487, 492; Com. Dig. Capacity, B 5; Croydon Hospital v. Farley, 2 Marsh, 174; 6 Taunt. 467; Shelford on Mortmain and Charities, 516 n. (u), 676. In dealing with incorporated companies, it is important to bear in mind the general rule that a corporation can neither dispose of nor bind any corporate property, except by deed under their common seal. Bro. Corp. 34, 50, 51; 1 P. Wms. 656; 3 Atk. 475; Bac. Abr. Corporations (E); 3 Com. Dig. Franchise, F. 12, 13. An exception to this rule has arisen in modern times, since corporations have been established by acts of parliament for the purpose of carrying on trading speculations; and where the nature of their constitution has been such as to render the drawing of bills, or the constant making of any particular sort of contracts necessary for the purposes of the corporation, in such cases the courts have implied in those who are, according to the provisions of the act of parliament, carrying on the corporation concerns, an authority to do those acts without which the corporation could not subsist. See 6 Mee. & W. 821; 6 Ad. & E. 829, 846.
The general rule of law is, that a corporation contracts under its common seal: as a general rule, it is only in that way that a corporation can express its will or do any act. That general rule, however, has from the earliest traceable periods been subject to exceptions, the decisions as to which furnish the principle on which they have been established, and are instances illustrating its application, but are not to be taken as so prescribing in terms the exact limit that a mere circumstantial difference is to exclude from the exception. This principle appears to be a convenience, amounting almost to necessity. Wherever to hold the rule applicable would occasion very great inconvenience, or tend to defeat the very object for which the corporation was created, the exception has prevailed; hence the retainer by parol of an inferior servant, the doing of acts very frequently recurring, or too insignificant to be worth the trouble of affixing the common seal, are established exceptions; on the same principle stands the power of accepting bills of exchange and issuing
promissory notes, by companies incorporated for the purposes of trade, with the rights and liabilities consequent thereon. Church v. The Imperial Gas Light and Coke Co., 6 Ad. & E. 681; 3 Nev. & P. 35. To every word of the above the Court of Exchequer entirely subscribed, in the case of the Mayor of Ludlow v. Charlton, 6 Mee. & W. 822.
In the last case it was observed by Rolfe, B., that if the legislature in creating a body corporate invest any member of it, either expressly or impliedly, with authority to bind the whole body by his mere signature or otherwise, then undoubtedly the adding a seal would be matter purely of form, and not of substance. In other cases the seal is the only authentic evidence of what the corporation has done or agreed to do. The resolution of a meeting, however numerously attended, is, after all, not the act of the whole body. Mayor of Ludlow v. Charlton, 6 Mees. & W. 823.
If work be done for a corporation for purposes connected with the corporation, under a verbal order, and accepted and adopted by them, they cannot in an action to recover the price object that no order was given under seal. Sanders v. St. Neots Union, 8 Q. B. 816; Haigh v. Bierley Union Guardians, El., Bl. & El. 873; 5 Jur. N. S. 511; 28 L. J., Q. B. 62.
It was decided that neither the engine driver, the railway guard at the station of a railway, incorporated by act of parliament, where an accident through negligence had occurred to a passenger, nor the superintendent of the traffic department, had implied authority to make contracts obligatory on the company with medical men called in to assist the injured person. Cox v. Midland Counties Railway Company, 3 Exch. 268; 13 Jur. 65; 18 L. J., Exch. 65; 5 Rail. Č. 583.
But such an authority might be inferred from the conduct of the directors of the company on former occasions in re.. cognizing similar contracts made by their officers; or, perhaps, from evidence that such powers were usually exercised by similar agents of similar companies. Ib.
An objection to a bill by an incorporated railway company for specific performance of a contract for the purchase of land entered into by their agent, that it did not appear that the agent was authorized under the corporate seal, and therefore that there was no mutuality, was overruled, on the ground that the company had, before the bill was filed, not only acted on the contract by entering into possession of the land, but had actually made a railway over it. London and Birmingham Railway Company v. Winter, 1 Cr. & Ph. 57; see Earl of Lindsay v. Great Northern Railway Company, 10 Hare, 679; Laird v. Birkenhead Railway Company, 1 Johns. 500; Leominster Canal Company v. Shrewsbury and Hereford Railway Company, 3 K. & J. 654.
To enforce an executory contract against a corporation it may be necessary to show that it was by deed; but where they