§ 2. 1. THE mode of instituting railway enterprises, in England, is more formal, and essentially different, from that adopted in most of the American States. There the promoters usually associate, under two provisional deeds, the one called a "Subscribers' Agreement," and the other a "Subscription, or Parliamentary Contract," which are expected only to serve as the basis of a temporary organization, till the charter is obtained. This is specifically and often in detail, to some extent, provided for, in the subscribers' agreement. A board of provisional directors is provided, to carry forward the enterprise, whose powers are defined in the subscribers' agreement, or deed of association, and whose acts will not bind the members, unless strictly within the powers conferred by the deed. 2. Under this form of association the subscribers are bound, by the act obtained, if within the powers conferred by the deed, · even where it involves the purchase of canal, and other property, by the company.1 And courts of equity often interfere to restrain the provisional directors from exceeding their * 1 Midland Great Western Railway v. Gordon, 16 M. & W. 804. * 631, 632 powers under the deed,2 or misapplying the funds, or delaying payment of the debts of the association.3 3. The provisional directors usually issue scrip certificates, which pass from hand to hand, by delivery merely, and after the charter is obtained, the scrip-holders are registered, as shareholders in the company, and thereby become entitled to all the rights, and subject to all the liabilities of the shareholders.4 4. And if the original subscriber sell the scrip to one who omits to have his name registered as a shareholder, by reason of which the original subscriber cause his name to be registered, and sell the shares again, he will be held to account for the avails of the second sale, as a trustee for the first purchaser.5 5. But the company are not obliged to accept of the holders of scrip, as shareholders, in discharge of the original subscribers, it has been said, but may insist upon registering the original subscribers to the deed of association, to whose aid it may be presumed the promoters looked in undertaking the enterprise, which by their act of incorporation they are morally, and in some cases legally, bound to carry forward. But the English decisions, upon the whole, hardly seem to justify this proposition. The subscriber cannot abandon the obligation at 2 Gilbert v. Cooper, 4 Railw. C. 396. All parties concerned must be made parties to the bill, even shareholders of whom it is alleged a rival company propose to purchase shares, to destroy the independence of one of the companies, connected with the common enterprise. Greathed v. S. W. & Dorchester Railway, 4 Railw. C. 213. 3 Lewis v. Billing, 4 Railw. C. 414; Bagshawe v. Eastern Union Railway, 6 Railw. C. 152; s. c. 7 Hare, 114; Bryson v. Warwick & Birmingham Canal Co. 23 Eng. L. & Eq. & R. 91. In this last case, the railway company being only provisionally registered, expended £10,000 in the purchase of the stock of the defendants. The railway finally failing to go into operation, in the process of winding up, one of the shareholders was allowed to institute proceedings in equity, on behalf of himself and others, being shareholders, to compel defendants to refund the money, and the court held the contract illegal, and compelled the defendants to refund the money received under it. * Post, § 47; Birmingham, B & Th. J. Railway. v. Locke, 1 Q. B. 256; London Grand J. Railway, v. Graham, id. 271; The Cheltenham & G. W. U. Railway v. Daniel, 2 Railw. C. 728; Sheffield & A. &. M. Railway v. Woodcock, 2 Railw. C. 522. 5 Beckitt v. Bilbrough, 19 Law J. 522; 8 Hare, 188. will. But if the scrip is *transferable, by delivery, it would be strange if the holder was not entitled to be registered, as shareholder, the same as the assignee of a fully registered share in the stock. And for the company, after having issued scrip certificates, in a form calculated to invite purchases, and when they were aware of the use constantly made of such scrip, to refuse to register the names of the holders, as shareholders, and members of the company, would amount to little less than express fraud. Hence we conclude they have no right to decline accepting such scrip-holder, as a shareholder.8 But where false scrip had been issued, beyond the amount allowed in the charter, and the full number of shares allowed by the charter already registered, it was held the company could not, upon that ground, refuse to register the shares of such as had purchased the genuine scrip. But we shall have occasion to say more upon this subject elsewhere.10 9 6. By the laws of some of the States a given number of persons associating, in a prescribed form, for particular purposes, as religious, manufacturing, and banking purposes, and often for any lawful purpose, are declared to be a corporation. In such cases no application to the legislature is required. But generally, railways in this country have obtained special acts of incorporation. There is, in most of the States, no provision for any preliminary association, and these enterprises are, for the most part, carried forward, by individuals, or partnerships, and questions arising, in regard to the binding force of the acts of the promoters, either upon, or towards the corporation, must depend upon the general principles of the law of contract.11 7. By the general law of some of the States the petitioners are required to furnish surveys of the proposed route, properly delineated upon charts, by competent engineers, with estimates, and other information requisite for the full understanding of the subject. And these profiles and plans are required, where the Kidwelly Canal Co. v. Raby, 2 Price 93; Great North of Eng. Railway v. Biddulph, 2 Railw. C. 401, where the question is raised, but not determined. 8 Midland G. W. Railway v. Gordon, 5 Railw. C. 76. 9 Daly v. Thompson, 10 M. & W. 309. 10 Post, § 39, 47. Angell & Ames on Corporations, § 86–94. petition is granted, to be deposited in some public office, for inspection and preservation.12 8. Since the publication of the former edition, the mode of procedure in obtaining parliamentary powers for railways, in England, has been considerably changed. The former laws have been repealed, and the whole consolidated into one statute,18 called "The Companies' Act, 1862," which applies to other companies as well as railways. 9. The usual course now is for the preliminary association to register itself as a preliminary company under the Act of 1862, for the purpose of obtaining a special Act of Parliament. This is effected by the promoters signing a memorandum of association, in which the powers of the company are specially limited to certain acts or purposes. 10. If the association be not registered under the statute so as to constitute it a corporation with limited powers, there may be danger that the individual members, who are active in promoting the enterprise, may incur the responsibility of general partners.14 But in England, it seems now settled that the promoters of railways are not, ordinarily, to be held responsible, as partners, for the acts of each other.15 12 Laws of Mass. 1833, ch. 176; 2 Railroad Laws & Ch. 616; Id. 657: Laws of Mass. 1848, ch. 140; Laws of Rhode Island, 1836; 2 Rail. Laws & Ch. 838; Laws of Conn. 1849, ch. 37; Id. 1153; Rev. Statutes of Maine, ch. 81, § 1; 1 Rail. Laws & Ch. 305. Similar provisions exist in many of the other States. But they are very general, and ordinarily the plans furnished are so imperfectly made, as not to afford much protection to land-owners. And a compliance with these requirements not being, in any sense indispensable to the validity of special acts, they are probably not very strenuously enforced by legislative committees, especially in cases where opposition is not made to the new incorporation, which is not very common, unless the project interferes with some rival work. 13 25 & 26 Vict. c. 89. 14 Hodges on Railways, (ed. 1865,) 2. 15 Hamilton v. Smith, 5 Jur. N. S. 32; Post, § 4, n. 11; Norris v. Cooper, 3 H. Lds. Cas. 161. Statutes 27 & 28 Vict. c. 121, facilitates, in certain cases, the obtaining of powers for the construction of railways. The act may be cited as "The Railways Construction Facilities Act, 1864." The recital to the preamble moderates the cases to which the act is to apply; it recites that it is expedient to facilitate the making of branch and other lines of railway, and deviations of existing railways, and of railways in course of construction, and also * SECTION II. Contracts of the Promoters not binding at law upon the company. 1. In this country promoters only bind them- | 3. But by consenting to a decree in equity selves and associates. setting up the contract, the company will be held to have adopted it. 2. Contracts of promoters not enforceable by company. § 3. 1. The promoters of railways, in this country, where the law makes no provision for the preliminary association becoming a corporation, can only bind themselves and their associates, at most, by their contracts. The promoters are in no sense 1 the execution of new works connected with, or for the purposes of, existing railways; and that the object aforesaid would be promoted, if, where all landowners and other parties beneficially interested are consenting to the making of a railway, or the execution of a work, the persons desirous of making or executing the same were enabled to obtain power to do so, on complying with the conditions of the general Act of Parliament, without being obliged to procure a special act. The promoters having contracted for the purchase of all the lands required for the railway, they are empowered to apply for a certificate from the Board of Trade, in the same manner, and subject to the same incidents, as obtaining a certificate under the Railways Companies' Powers Act. The lines and works of a railway are sufficiently shown on the plans deposited by a black line, with dotted lines on each side, to mark the limits of deviation. Weld v. London and South Western Railway Co., 9 Jur. N. S. 510, s. c. 11 W. R. 448. Where the deposited plans and sections specify the span and height of a bridge by which a railway is to be carried over a turnpike road, the company will not, in the construction of the bridge, be allowed to deviate from the plans and sections. Attorney-General v. Tewkesbury and Great Malvern Railway Company, 9 Jur. N. S. 951; s. c. 8 L. T. N. S. 682. 1 Moneypenny v. Hartland, 1 C. and P. 352. Abbott, Ch. J., said: "Before an act passes for such a work as this, the surveyor and other persons employed on it look to the committee, or body of adventurers, who first employ them." S. P. Kerridge v. Hesse, 9 C. & P. 200; Doubleday v. Muskett, 7 Bing. 110. And one who attends the meetings of such preliminary association, and takes part, will ordinarily be precluded from denying his liability as a partner. Harrison v. Heathorn, 6 Man. & Gr. 81; Sheffield, Ash. and M. Railway v. Woodcock, 7 M. and W. 574. If the defendants have suffered themselves to be held out as partners in the enterprise, and engaged in carrying it forward, and |