be made before the end of twelve calendar months after the election, or the time when the person against whom such application may be directed has become disqualified. Notwithstanding the above enactment, it was doubted whether an application in the nature of a quo warranto might not still be successfully made against any person holding the office of mayor, on the ground that he was not duly qualified to be so elected, by reason of some informality in his previous election to the office of alderman or councillor, although more than twelve calendar months might have elapsed since such election to the office so alleged to have been informal or defective, and likewise whether a like application might not be made against any other corporate officer on similar grounds. This doubt led to the passing of the stat. 6 & 7 Vict. c. 89, which enacted that no election of a mayor in any borough should be liable to be questioned by reason of a defect in the title of such person to the office of alderman or councillor, to which he might have been previously elected, unless application should have been made to the court of queen's bench, calling upon such person to show cause by what warrant he claimed to exercise such office of alderman or * councillor, [ *592] within twelve calendar months after his election to the said office; and that every election to any corporate office within a borough which is not called in question by application to the court of queen's bench, shall be deemed valid to all intents and purposes. Though an application such as mentioned cannot now be made after the twelvemonth specified, the court is not bound to grant it if made within that time, but will in their discretion refuse it, if they think there has been undue delay(t). On an information for exercising the office of mayor, it was held no objection to the title that the party who was councillor when elected mayor, was not shown to have been on the burgess roll at that time, it being admitted that he was de facto councillor when elected mayor, and that he was on the burgess roll when elected councillor (u). To justify a quo warranto being issued, the person against whom it is applied for must have actually exercised the office, his title to which is called in question(x). And it is not sufficient that he has merely been elected (y), but the fact of his having been sworn in, though informally, has been held to be a sufficient user(z). The provisions of the statute of Anne are confined to proceedings taken against an individual for usurping an office by the party aggrieved. An information against a body of persons for claiming to be a corporation can only be taken by the attorney-general (a). Indeed the court have held that they will not even grant an information at the suit of a private person against an individual, when the object is to try the legality of the charter, and when it is clear that the information if successful must dissolve *the corporation (b), though it would not suffice merely to show that it might possibly have that effect (c). [*593] Further, the writ of mandamus is made by the statute 9 Ann. c. 20, an effectual remedy, in the first place, for refusal of admission where a person is (t) Reg v. Hodson, 11 L. J. Q. B. 219; S. C., 4 Q. B. 648 n. See Rawlinson's Municipal Corporation Acts, 5th ed. pp. 357-363 n. (u) Reg. v. Dixon, 15 Q. B. 33. (2) Re Armstrong, 25 L. J. Q. B. 239. (y) Reg. v. Slutter, 11 A. & E. 505. VOL. I.-53. (2) R. v. Tate, 4 East, 337. (a) R. v. Ogden, 10 B. & C. 230; R. v. Corporation of Carmarthen, 2 Burr. 869. (b) Reg. v. Taylor, 11 A. & E. 949. (c) Reg. v. White, 5 A. & E. 613; Reg. v. Parry 6 A. & E. 810, 820. entitled to an office or place in any corporation such as treated of(d); and, secondly, for wrongful removal, when a person is legally possessed (e). These Proceeding by are injuries, for which, as the franchise concerns the public, mandamus. and may affect the administration of justice, this prerogative writ issues from the court of queen's bench, upon good cause shown to the court, commanding the complainant to be admitted or restored to his office. And the statute requires, that a return be immediately made to the first writ of mandamus; which return may be pleaded to, traversed, or demurred to(f) by the prosecutor, and his antagonist may reply, take issue, or demur, and like proceedings may be had, as if an action on the case had been brought, for making a false return (g). After judgment obtained for the prosecutor, he may have a peremptory writ(h) of mandamus to compel his admission or restitution. So that now this writ of mandamus, in cases within the statute of Anne, is [ *594] *in the nature of an action: whereupon the party applying and succeeding may be entitled to costs, in case the franchise in question be that of a citizen, burgess, or freeman; and a writ of error may be had upon it(i). elect corporate officer. The writ of mandamus may also be issued, in pursuance of the statute 11 Geo. 1, c. 4, in case within the regular time no election be made of the mayor Mandamus to or other chief officer of any city, borough, or town corporate, or (being made) it afterwards become void; requiring the electors to proceed to election, and proper courts to be held for admitting and swearing in the magistrate who may be chosen. The provisions of this statute are extended by 7 Will. 4 & 1 Vict. c. 78, s. 26, to the case where an election has not taken place at the time provided by the Municipal Corporation Act, 1835; and it has been determined that a mere de facto election will not prevent the court from issuing a mandamus under the statute, but one will be issued if they see the election is merely colourable and void(k). III. Railway companies, gas, canal, and dock companies, waterworks, telegraph, and other companies requiring special parliamentary powers, constitute the third subdivision of our present subject. (198) The persons forming such (III.) Railway Companies, &c. associations require extraordinary powers to enable them to make their works, carry on their business, and perform the functions for which they were called into existence. It is often necessary for them to take possession of (d) That is, when the office is vacant; when it is full de facto, the remedy is by quo warranto. Reg. v. Phippen, 6 A. & E. 966. (e) When the mandamus is to restore a person to an office, the return must be very accurate in stating, first, the power of the corporation to remove; and, secondly, a just and reasonable cause of removal. Selw. N. P. 13th ed. 1037. Tapping on Mandamus, 195, 199. (f) By 6 & 7 Vict. c. 67, if the prosecutor wishes to object to the validity of the return, he must demur to it. (g) Before this statute the truth of the state ments in a return could not be inquired into in any proceedings on the mandamus, and the only remedy for the prosecutor was by action on the case for a false return. These provisions were extended by stat. 1 Will. 4, c. 21, to writs of mandamus in all other cases. (h) To which no return is admissible. Reg. v. Ledyard, 1 Q. B. 616. (i) By 6 & 7 Vict. c. 67. See also 17 & 18 Vict. c. 125, ss. 75-77. (k) See R. v. Mayor of Cambridge, 4 Burr. 2008. (198) In the United States almost every variety of business is carried on by incorporated companies. To enumerate them all would be difficult; and useless if done. The rules which are applicable to all corporations aggregate are applicable to them either as to their organization, their powers and duties, or their liabilities. See notes 174 to 196, inclusive. lands and houses (without consent of owners), to interfere with, obstruct, and divert highways, or to cross navigable rivers; and, as the prerogative of the crown does not extend to the granting of powers so extensive, these associations can only be efficiently formed by act of parliament. Prior to the year 1845, whenever it was desired to execute works such as specified, a company was [*595] formed and incorporated for the purpose by act of parliament, which act strictly defined the powers it conferred, beyond which the company so formed was unable to proceed. When railways began everywhere to intersect the kingdom, and other public companies were set a-going, special acts for constituting them became very numerous, and as of course there were many provisions common to all such acts, it was deemed expedient to pass certain general enactments, to wit, the Companies Clauses Consolidation Act, 1845 (7), the Lands Clauses Consolidation Act, 1845(m), and the Railways Clauses Consolidation Act, 1845(n), in reference to all associations which might come within their purview. These acts, amended by subsequent statutes(o), contain many useful provisions which are applicable to undertakings of this class, and apply to the companies in question, except in so far as they may be altered or affected by their special acts of incorporation. These acts regulate the respective rights of shareholders and directors of the companies, provide for the making of mortgages and the borrowing of money, and settle what notice is to be given to persons whose land may be taken, and how the amount of compensation due to such persons is to be assessed. There is one important particular in which corporations such as now treated of differ from those previously mentioned; the property of the company is divided into shares, of which each member holds one or more, and which he may transfer to any other person, who on the completion of the transfer becomes ipso facto a member of the corporation. These shares are, however, in very many *companies converted into stock(p), which is divided among the shareholders according to their respective interests(q), it may be [ *596] transferred in the same manner as shares(r), and the stockholders have the same privileges and advantages as shareholders, but, except as regards participation in dividends and profits, these privileges are not conferred by any aliquot part of such amount of consolidated stock as would not if existing in shares have conferred the same(s). IV. Joint Stock Companies for trading purposes are of comparatively recent origin.(199) With the increase of trade in modern times, it became usual to (IV.) Joint Stock form companies embracing a great number of individuals for the Companies. purpose of raising the requisite amount of capital for carrying on large operations. It is obvious that considerable inconveniences must attend (1) 8 & 9 Vict. c. 16. (m) 8 & 9 Vict. c. 18. (n) 8 & 9 Vict. c. 20. (0) See 23 & 24 Vict. c. 106; 26 & 27 Vict. c. 92; 29 & 30 Vict. c. 108; 31 & 32 Vict. c. 119; amended by 32 Vict. c. 6. (p) 8 & 9 Vict. c. 16; 26 & 27 Vict. c. 118; 32 & 33 Vict. c. 98. (g) 8 & 9 Vict. c. 16, s. 67. (r) Ib. s. 62. (8) Ib. s. 64. (199) What is called a joint-stock association in England is treated as a corporation by our courts, when the association has the usual faculties or powers of corporations. Liverpool Ins. Co. v. Massachusetts, 10 Wall. (U. S.) 566. ordinary copartnerships consisting of very many partners, ex. gr., in a legal proceeding it might be necessary to make every partner a party thereto, this would be difficult to accomplish when the company was plaintiff, and almost impossible when it was defendant in a suit; also in the course of time, as the different partners died, the difficulty of settling accounts with their executors and administrators would be well nigh insuperable. For these and other reasons it had long been thought desirable to incorporate companies such as treated of for certain purposes; this was at one time effected by charter, or special act of parliament: and afterwards, in the year 1837(t), the crown was empowered to incorporate such companies by means of letters patent. Then, as the number of these undertakings increased, various statutes were passed which allowed persons to incorporate themselves, or rather which *incorporated them on their complying with certain formalities pre[ *597] scribed in the acts themselves. The statutes now regulating such companies are the Companies Act, 1862 (25 & 26 Vict. c. 89), and the Companies Act, 1867 (30 & 31 Vict. c. 131), by the former of which statutes it is provided that any number of persons not less than seven (u) associated for any lawful purpose may by subscribing their names to a memorandum of association, and otherwise complying with the requisitions of the act in respect of registration, form an incorporated company with or without limited liability. All necessary formalities being complied with, the company becomes a corporation, and is capable of suing and being sued in its corporate name, and of having a common seal and perpetual succession. A company thus constituted differs from other corporations in many important respects, inter alia, the property of the company is, like that of railway companies, divided into shares, which may be transferred from one member to any other person, who thereby becomes a member of the company, and this may (usually) be done without the consent of its other members. Each and every member of the company is liable for its debts, unless the company be "limited," in which case he is liable only to the amount of capital (if any) not called up on the shares which he holds in it(x). There are statutory provisions for the dissolution of the company by winding it up, either voluntarily or compulsorily, in the court of chancery when it fails to meet its obligations, or has lost a certain portion of its property. *A consideration, how brief soever, of these associations, naturally [*598] suggests some reference to the law of partnership in general. (200) To constitute a partnership in respect of strangers as well as inter sese, it has usually been said, that a participation in the profits and loss of the concern(y) is necessary, and it is clear that wherever persons are engaged in any trade, business, or adventure on the terms of sharing in any proportion the profits and losses therefrom, they are at common law partners(z). The true test of part (t) By stat. 7 Will. 4 & 1 Vict. c. 73. (u) After August 7, 1862, no ordinary partnership for the purpose of carrying on trade can lawfully consist of more than twenty persons, or of more than ten persons if established for the purpose of banking. 25 & 26 Vict. c. 89, s. 4. (x) Under the stat. 30 & 31 Vict. c. 131, ss. 4 et seq., the directors of a limited company (200) The subject of partnerships is a most important one, and furnishes materials for a volume. See 1 Wait's Law and Practice, 277 to 306, and the various works on partnership. nership, however, is the fact of agency, or a participation in profits, evidencing that each partner worked for the benefit of the others, and was therefore agent for the firm(a). The liability of one partner for the acts of his copartner is in truth the liability of a principal for the acts of his agent. Where two or more persons are engaged as partners in an ordinary trade, each of them has an implied authority from the others to bind all by contracts entered into according to the usual course of business in that trade. Every partner in trade is, for the ordinary purposes of the trade, the agent of his copartners, and each is therefore liable for the ordinary trade contracts of the others. "Partners, indeed, may stipulate among themselves that some one of them only shall enter into particular contracts, or into any contracts, or that as to certain of their contracts none shall be liable except those by whom they are actually made; but with such private arrangements third persons, dealing with the firm without notice, have no concern. The public have a right to assume that every partner has authority from his copartners to bind the whole firm in contracts made according to the ordinary usages of trade. This principle applies not only to persons acting openly and avowedly as partners, but to others who, though not so acting, are by *secret or private agreement, partners with those who appear ostensibly to the world as the persons carrying on the business "(b). [*599] To exhibit in other words the reasoning above set forth, "a man who allows another to carry on trade, whether in his own name or not, to buy and sell, and to pay over all the profits to him, is undoubtedly the principal, and the person so employed is the agent, and the principal is liable for the agent's contracts in the course of his employment. So if two agree that they should carry on a trade, and share the profits of it, each is a principal, and each is an agent for the other, and each is bound by the other's contract in carrying on the trade, as much as a single principal would be by the act of an agent, who was to give the whole of the profits to his employer. Hence it becomes a test of the liability of one for the contract of another, that he is to receive the whole or a part of the profits arising from that contract by virtue of the agreement made at the time of the employment "(c). Such is the true principle of partnership liability, and perhaps the maxim, that he who partakes the advantage ought to bear the loss (d), often stated in the earlier cases on this subject, is only the consequence, not the cause why a man is made liable as partner(e). The doctrine of implied agency must be applied only in regard to contracts made in the usual course of trade, and a question sometimes arises whether a particular contract was made in the ordinary course of trade, so as to give one copartner an authority to bind the firm. Thus, although it is clear that merchants and partners in trade can bind each other by accepting bills of exchange, this being an act necessarily done in the regular course of *business, it has been held that attornies quà attornies have no such power(ƒ), nor, it would appear, have farmers(g). So a horse dealer would have the power to bind his partner by the warranty of a horse, though given contrary to a private agreement between themselves (h), though persons in another business could not. [*600] (e) Per Lord Wensleydale, ubi supra. (f) Hedley v. Bainbridge, 3 Q. B. 316. (g) Greenslade v. Dower, 7 B. & C. 635. (h) Per Abbott, C. J., Sandilands v. Marsh, 2 B. & Ad. 673, 679. |