gory, in asking the opinion of the experts, is scarcely equalled by the device of certain species of birds, who imagine themselves invisible to others because they are so to themselves. It is not unlike asking a witness in regard to the genuineness of handwriting, in dispute before a jury, and which is to be determined by them, and this is always allowed without question. And in all such questions, there is likely to be so much disagreement among the experts, as to leave the jury a sufficient duty to perform. But the more common practice is according to the rule in Sills v. Brown. In an action against a railway company for carrying their road through plaintiff's pasture, throwing down his fences, and scattering, frightening, and injuring his cattle, it was held that an experienced grazier is competent to testify as an expert in regard to the state of cattle and to causes affecting their weight and health on a supposed state of facts. But that such person could not express an opinion upon the facts proved in the particular case, on the point to be determined by the jury. Baltimore & Ohio Railw. v. Thompson, 10 Md. R. 76. In Webb v. Manchester & Leeds Railw., 1 Railw. C. 576, a point involving questions of practical science being in dispute, and the testimony conflicting, it was referred to an engineer for his opinion, and his conclusion, in regard to the facts, adopted and made the basis of the order of court. In the case of Seaver v. Boston & Maine Railw. Co., 14 Gray, 466, after several experts called by the plaintiff had testified, upon a statement of facts and circumstances of the accident, what in their opinion threw the cars from the tracks, the defendants were permitted to ask a machinist who had been connected for many years with railroads, and with the running of cars and engines upon them, and who was in the cars at the time of the accident, and saw the occurrence and all the attending circumstances, what in his opinion threw the cars from the track, and it was held no ground of exception. We had occasion, in our book on Wills, pt. 1, § 15, pp. 135 - 159, to examine the subject of the testimony of experts upon the question of mental soundness in all its bearings. Many of the principles there laid down, and especially the course of practice, will apply to the general bearing of this class of testimony in other cases. 8. Directors cannot bind company except in conformity with charter. 9. Company cannot retain money obtained by fraud of directors. 3. Constitutional requisites must be strictly 10. But it must appear the plaintiff was misfollowed. led without his own fault. 4. Directors, or shareholders, cannot alter the 11. Company, by adopting act of directors, fundamental business of the company. are liable to make recompense. 5. Inherent difficulty of defining the proper 12. A prospectus and report should contain limits of railway enterprise. the whole truth. n. 7. Opinion of Lord Langdale, and review 13. Directors cannot issue shares to procure of cases, on this subject. votes and control corporation. of the company. 6. An act ultra vires can only be confirmed 14. What will amount to fraud in the reports by actual and not by constructive assent. 7. The directors of a trading company may 15. give bills of sale in security for debts contracted by them. Directors responsible for fraudulent acts and representations. 16. Extent of power of directors. § 135. 1. WE have before stated, in general terms, the power of the directors of the company to bind them.1 The board of directors ordinarily may do any act, in the general range of its business, which the company can do, unless restrained by the charter and by-laws.2 Notice to one of a board of directors, in Ante, § 113; Post, § 164. 2 Whitwell, Bond & Co. v. Warner, 20 Vt. R. 425. But the general agent of such a company, who performs the daily routine of the business of the company, cannot bind them beyond the scope of his ordinary duties. Hence the law agent of a joint-stock insurance company cannot bind the company by his false representations as to the state of its finances. Burnes v. Pennell, 2 H. L. Cas., Clark & F. (N. s.) 497. But where the directors of the company make such false representations as to the state of the finances of the company to enhance the price of stocks, they are liable to an action at the suit of the person deceived, or to criminal prosecution; and transfers of stock, made upon the faith the same transaction, or express notice, is, in general, notice to the company. But the fact that one of a firm is a director in a banking company, but takes no active part in the business of the bank, is no notice * to such bank of the dissolution of such partnership, or the retiring of one of its partners.3 2. But it is said the directors of a corporation have no authority, without a vote of the shareholders, to apply to the legislature for an enlargement of the corporate powers. And it was held, that the managing directors of a joint-stock company, who had power to lease the works of the company, could not, in the lease, give an option to the lessee, to purchase, or not, at a price fixed, the entire works of the company, at any time within twenty years, and that such a contract must be ratified by every member of the company to become binding upon them.5 3. And where the deed of a joint-stock company enables the majority to bind the company, by a resolution passed in a certain manner, these formalities must be strictly complied with, or the minority will not be bound by the act." of such representations, will be set aside in equity. Id. Lord Campbell said, it was not necessary the representation should have been made personally to the plaintiff. See, also, Soper v. Buffalo & Roch. Railw., 19 Barb. 310. But where the charter of a railway company, or the general laws of the state, require the ratification of a particular contract, by a meeting of the shareholders, held in a prescribed manner, such contract, assumed by the directors only, does not bind the company, and a court of equity will not hesitate to enjoin its performance by the company at the suit of any dissenting shareholder. Zabriskie v. C. C. & C. Railw., 10 Am. Railw. Times, No. 15. Where a tariff of fares of freight and passengers upon a railway are established and posted up by the president of the company, and are acted upon in transacting the business of the company without objection, the consent of the corporation will be presumed. Hilliard v. Goold, 34 New H. R. 230. Powles v. Page, 3 C. B. 16. But the secretary of a railway company cannot bind the company by admissions. Bell v. London & N. W. Railw., 21 Eng. L. & Eq. 566. Nor can the directors bind the company by their declarations, unless connected with their acts, as part of the res gestæ. Soper v. Buffalo & Roch. Railw., 19 Barb. 310. Notice of process to two directors of a canal company is good notice to the company, and will bind it, although never communicated to the board. Boyd v. Chesapeake & Ohio Canal Co., 17 Md. R. 195. * Marlborough Manufacturing Co. v. Smith, 2 Conn. R. 579. • Ex parte Johnson, 31 Eng. L. & Eq. 430. One railway company cannot, 4. So, too, where the directors, or even a majority of the shareholders, assume to enter into a contract, beyond the legitimate scope of the objects and purpose of the incorporation, the contract is not binding upon the company, and any shareholder may restrain such parties, by injunction out of Chancery, from applying the funds of the company to such purpose, however beneficial it may promise to become to the interests of the company. This is a subject of vast concern to the public, considering the large amount of capital invested in railways, and the uncontrollable disposition which seems almost everywhere to exist, in the utmost good faith, no doubt, to improve the business of such companies, by extending the lines of communication, and even by the virtual purchase of other extensive works, more or less nearly connected, either in fact, or in apprehension, with the proper business of the company. In a late English case (1861), before the Master of the Rolls, it was held, that where a railway company were required by their charter to keep up a ferry accommodation between certain points, and for that purpose were obliged to have a much larger number of steamboats on certain days than upon ordinary occasions, they were not acting ultra vires in employing the steamboats for excursions to a point beyond the ferry and back, when not required for the purposes of the ferry. The learned judge thus defined the powers of railway companies. After saying that if every shareholder but one assented, the company could not carry on a trade perfectly distinct from that for without the permission of parliament, purchase stock in other railway companies. Salomons v. Laing, 6 Railway C. 289. In the case of Ernest v. Nichols, 30 Law Times, 45, decided in the House of Lords, in August, 1857, the subject of the power of the directors of a jointstock company to bind the company, is discussed very much at length, and the conclusion reached, as in some former cases (Ridley v. Plymouth, &c. Co., 2 Exch. 711, and some others), that the directors could execute no binding contract on behalf of the company, except in strict conformity to the deed of settlement by which the company was constituted; and that it was no excuse for the other contracting party to say he was ignorant of the provisions of that deed. It was his folly to contract with a director or directors, under such ignorance, and he must be content to look to those with whom he contracted. Forrest v. Manchester S. & L. Railw., 7 Jur. N. S. 749; s. c. affirmed in Court of Chancery Appeal, id. 887, but upon the ground that the suit was illusory, and not in fact the suit of the plaintiff, but of a rival company. which they were constituted; "it is impossible," said the Master of the Rolls, "for them to set up a brewery, they cannot carry on a trade such as managing a packet company.' "And if this were the case of a railway company embarking in the formation of a packet company, for the purpose of carrying passengers between two places, or even for the mere purpose of making excursions, I should be of opinion it was not justified. But I am of opinion, that no capital of the company is embarked expressly and solely for the purpose of making excursion trips." And in the Supreme Court of the United States it has been decided, that the separate railway corporations had no right to consolidate their roads into one, and put them under one management, which seems to us a very questionable proposition, tô say the least, since such a combination of management is obviously the only thing which will be adequate to produce the kind and degree of concentration of effort and management in the carrying forward of railway enterprises in this country, which will make them either remunerative or useful to the public. And as there is no national supervision of these vast interests, we must find it either in the discretion of railway directors and managers, or in some new constitutional provisions in the national government, adequate to the exigency. But the proposition that such companies cannot establish a steamboat line in connection with their business, and that their joint notes given for the purchase of boats cannot be enforced, is unquestionable.8 5. There can be no doubt the courts of equity hold some rightful control over these speculative schemes and enterprises. But * they lie so deeply entrenched, in the general spirit of the age, and receive so much countenance and sympathy from kindred enterprises, in almost all the departments of business, that it often becomes extremely difficult, if not impossible, to fix any well-defined and practicable limits to the operations of railway companies, that shall not allow them, on the one hand, the power of indefinite extension, and overwhelming absorption of kindred enterprises, or which will not be regarded, on the other, as a denial of fair liberty and free scope to carry out the just objects of 8 Pearce v. M. & I. & P. & I. Railw., 21 How. 441. But see Rut. & BurRailw. v. Proctor, 29 Vt. R. 93, 95. |