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be called upon to beat over that ground. The strict rule repeatedly laid down here on this head by Lord Cottenham and Lord Langdale, appears to have been fully adopted in most of the United States. Indeed, in some respects, it seems to have been carried further than we have yet advanced; but, however this may be, it is settled in their courts to be a good defence to an action for calls, that they are wanted for objects alien from those that are within the constitution of the Company."
The subject of bye-laws appears to be treated at once neatly, succinctly, and fully; and perhaps the more attention and care have been bestowed on it, because here the author touches on one of the sore places of the railway system of his country. Some acquaintance with the works of most of the late travellers in North America had well prepared us for the following admission. After setting out the regulations of our Board of Trade, he says: “The code of bye-laws framed by the Board of Trade in England for the regulation of travel by railway,
is certainly very judicious; and, if some similar one could be adopted and enforced here, it would accomplish very much towards security, sobriety, and comfort, in railway travelling, and tend to exempt the companies from much annoyance, and very often from loss.” ? In fact, among a number of points in which the comfort of travellers is less consulted in America than with us, nearly the only one in which they excel is this :-in hot weather the companies are generally in the habit, at each stopping-station, of supplying abundance of iced water for the gratification of the thirsty occupant of the sweltering car.
As we pass along, it may be well not to omit a specimen of the author's style, the more especially as it contains a sample of his mode of criticism on English authorities.
“In Humble v. Langston, 2 Railway Ca., 533, it is decided that upon the sale and transfer of the shares, where the purchaser's name is not substituted on the register of the company
1 On this see Redf., SS 56, 212.
for that of the seller, but the stock still standing in his name, he is thereby subjected to the payment of future calls; he cannot recover the money, of the purchaser, because there is no implied contract to that effect resulting from the transaction. This is certainly a most remarkable decision, and it is something of a task to be able to read the opinion of the court, by which this result is reached, with tolerable patience. The conclusion is certainly not fortified either by reason or analogy; and in Cheltenham and Great Western Union Railway Co. v. Daniel, 2 Railway Ca., 728, it is decided that the purchaser of shares may, by way of estoppel en pais, be made liable for calls before his name is actually substituted, for that of the seller, upon the register of shares. If so, both parties are liable for the calls; and the seller, while his name remains upon the register, is the mere surety of the purchaser as to future calls. And what is a more natural or necessary conclusion in the mind of any one having the common sense of justice, than to imply, that while the purchaser suffers the seller's name to remain upon the register, and liable to the payment of calls, through his neglect, he does impliedly promise to indemnify him against all loss on that account ? See Burnett v. Lynch, 5 B & C., 589. But the case of Humble v. Langston is re-affirmed in the subsequent case of Sayles v. Blane, 6 Railway Ca., 79. These cases can only be accounted for upon the principle of discouraging blank unregistered transfers, which have the effect to evade the stamp duties.-Shelford 108 ; and Report on Railways, 1839; No. 517, p. 4. Since writing the above, the late case of Walker v. Bartlett ? has come to hand, where a blank transfer seems to be regarded as perfectly valid, and that the transfer in this mode does impose upon the vendee the duty of paying calls upon the shares while they remain his property. We may be allowed to say, that this result of the
On the ground that all the machinery that the legislature bad rendered necessary to constitute a member was dispensed with by the conduct of the parties.-S. C.
? 2 Jur. N.S., 643, in Err. from C. B., where Crowder J. yielded a reluctant assent to Humble v. Langston.
English decisions upon this subject is not altogether without gratification, as the former decisions had so effectually mystified the subject, that it seemed not improbable that the difficulty of comprehending them might very likely be ultimately found with ourselves, rather than at the door of the eminent jurists who have so long clung to the now acknowledged inconsistencies of Humble v. Langston, which pertinacity in error, as a general thing, is far more uncommon in Westminster Hall than with courts of less experience. Men of the learning and experience of the English judges generally feel that they can afford to acknowledge their common share of human fallibility without serious prejudice.” It is impossible to avoid adding, that of the Barons of the Exchequer who decided Humble v. Langston, only one remained on the bench at the date of the decision of Walker v. Bartlett; and that learned judge, together with two of the three judges who decided Sayles v. Blane, were consenting parties to the decision of Walker v. Bartlett.
Then the learned Chief Justice of Vermont, in speaking of the pertinacity with which error has been clung to, appears to labour
misconception. The judges who decided Humble v. Langston, never had an opportunity of revising the opinion of their court in that case : no case having ever subsequently come before them, putting to the test whether they clung to, or resiled from, that decision. In Sayles v. Blaue the three judges who decided, did so in deference to the deliberate decision of a court of co-ordinate jurisdiction, as did the Court of Common Pleas with the case of Walker v. Bartlett.?
When a rule is once laid down by a court of competent jurisdiction, it is surely most desirable, for the sake of uniformity of adjudication, that the rule should be adhered to until reversed in a court of error: certainly that practice is the only one that can Le followed with the hope of maintaining, in due authority, the three co-ordinate common law judicatures of England.
1 Redf., pp. 47, 48,
It is unnecessary to mention that, in case of railway companies here, the shareholders are liable to the extent of unpaid up shares, &c., to judgment creditors of the Company; but in the United States there is, for the most part, no provision of that nature; hence this and the general question of liability of a trading company on its dissolution, have been much more fully discussed than with us. What is to be done with the liabilities and rights of an incorporated body on the dissolution of the corporation ? is always a difficult inquiry. The reader will, we think, find it handled in this work in a satisfactory manner, and more elaborately in the cited case decided by six judges, the three others dissenting, of the Supreme Court of the United States; or, as Chief Justice Redfield calls it, “the national tribunal of last resort." They decided that, “on the dissolution of a corporation, its effects are a trust fund for the payment of its creditors, who may follow them into the hands of any one, not a bona fide creditor or purchaser without notice.”
We must pass over the Chief Justice's elucidation on what is called in America, from the civil law, the doctrine of “eminent domain," and what we, in plainer English, should call the principle which attributes to the sovereign the prerogative or power of interfering with private property for great public objects, and on occasions when the necessity of the case admits of no alternative. Such is the prerogative or right of entering on the lands of the subject adjacent to the sea, to erect bulwarks, &c., on prospect of invasion, &c.; and the principle governs questions relating to compulsory taking of lands for the purpose of railway and other works.. We cannot do more than that, which it is worth while, however, to do, viz.-quote the language of the Chief Justice of the Supreme Court in reference to the construction to be put on powers of this kind given to companies :-“It would present a singular spectacle if, while the courts of England are restraining,
Redf., § 50. * Curran o. State of Arkansas, 15 Howard R., 304, 305--321.
3 He refers (Redf. § 63) to Tacit. Ann. I., $ 75; Plin. Hist., xxxvi., $ 2, the reference being an error, and states Clarence River Bridge o. Warren Bridge, 11 Peters, 420, in the Sup. Court of U. S., to be their leading case on the subject.
within the strictest limits, the spirit of monopoly and exclusive privilege in nature of monopoly, and confining corporations to the privileges plainly given to them in their charter, the courts of this country should be found enlarging those privileges by implication.” The principle of compensation, which is founded in justice, and recognised by the best jurists, is fully and frankly acted on in America, where, as a rule, no man is called upon to part with his property for state purposes, except upon an equivalent previously provided by the state ;' the rule being subject, it may be presunied, to the fact that it is, in general, impossible to ascertain, till the work is done, what shall be a just amount of compensation,
The principle in its fullest development has only been adopted, in our law, on some particular heads; ex. gra., in questions of the making of highways, as in 1 and 2 Will. IV., c. 43. In Scotland they are more liberal, at least to themselves. Some of the American decisions on this head of eminent domain, seem not a little wild and extravagant. It has been held, in one of their courts of error, to be a perfectly proper exercise of the rights of eminent domain by a legislature, to empower a railway company to run cars, worked by steam power, along the main street of a city," without any compensation for the privilege being payable to any one. In other states, it is true, the law is differently expounded. In Vermont the courts have held taking of land for a public highway, is not appropriating it to public use, within the meaning of the constitution of that state, which requires compensation in such cases to be made “in money;" but that this provision only applies where the fee of the land is taken; and that, where an easement only is taken, for the purpose of a high
12 Kent Com., 399, 8th Edit. So Grotius, De Jure B. and P., iii., cap. 19, § 7; cap. 20, § 7, and other authorities cited by Chancellor Kemt. So the Code Napoleon, art. 545. * Lister o. Lobley, 7 A. & E., 133.
Bell's Principles, &c., p. 173. 4 2 Kent Com., 403, 404 ; Redf. $ 76. This is matched by a decision that a bowling-alley kept for gain in a village is a uuisance at common law. Id. See Redf., $ 76.