to be paid to the former company. The Master of the Rolls, Lord Romilly, held the agreement ultra vires as giving up the sole and entire management of the line and delegating its use and working. This decision was reversed by the Court of Appeal in Chancery, where it was held that the agreement was not in effect a lease, transfer or delegation of powers, but a working agreement which was not illegal or beyond the powers of either company, or against public policy. The consideration that the agreement was not in terms exclusive — the Hereford Company retaining the local traffic, and other companies not being expressly excluded from similar agreements seems to have had weight in the judgment. The case was distinguished from London, B., & S. C. R. Co. v. London & S. W. R. Co., 4 De Gex & J. 362 (1859), where there was an agreement for an exclusive use.

34. Riche v. Ashbury Railway Carriage & Iron Co., L. R. 9 Exch. 224 (1874), L. R. 7 H. L. 653 (1875). The defendant company was incorporated by a "memorandum of association" under the Joint Stock Companies Act, 1862, the memorandum declaring one of its objects to be "to carry on the business of mechanical engineers and general contractors," and under this power the directors assumed to buy a concession of the government of Belgium for the construction of a railway' in that country, and to contract with parties to build it. It was contended that, even if the directors had exceeded their authority, their acts had been ratified by the shareholders. It was held in the House of Lords that the contract, being of a nature not included in the memorandum, which is the company's charter, was ultra vires not only of the directors but of the company, and, as it was in its inception void, could not be made valid by the subsequent assent of all the shareholders. Some of the Lords, particularly Lord Selborne, showed a strong leaning to the rigid doctrine of ultra vires as held in the East Anglian Railway case. The case of Riche v. Ashbury Railway Carriage and Iron Co. illustrates the conflicts of opinion and embarrassments to which the doctrine as applied to contracts leads, justifying Lord Cairns's remark, that the history and progress of the action, in which no fact was in dispute, with an active and continuing litigation of seven years, is not creditable to our [English] legal proceedings." In the Court of Exchequer two of the three judges were for the plaintiff; and the six judges in the Exchequer Chamber were equally divided, three for the plaintiff on the ground of ratification, and three for the defendant on the ground that the contract was both incapable of ratification and had not been ratified. The result shows that the wearisome discussions on ultra vires in the English courts, lasting for a generation, have failed to establish a conclusion which commands the general assent of the judges.

III. Suits by the Attorney-General to restrain the corporation.

35. Attorney-General v. Great Northern R. Co., 1 Drewry & S. 154 (1860). An injunction was granted upon an information filed by the Attorney-General on the relation of a stranger to restrain a railway company from carrying on the general business of buying and selling coal, it being held that the company was, by implication, prohibited from. carrying on any business other than that for which it was constituted. The public interests were considered to be endangered by the extraordinary means at the command of a railway company for preventing competition and obtaining a monopoly. See as to proceedings by the government in such cases, Attorney-General v. Great Eastern R. Co., L. R. 11 Ch. Div. 449, L. R. 5 App. Cas. 473; Attorney-General v. Tudor Ice Co., 104 Mass. 239; Attorney-General v. Boston, 123 Mass. 460; United States v. Union Pacific R. Co., 98 U. S. 569.

36. Attorney-General v. Great Eastern R. Co., L. R. 11 Ch. App. 449 (1879), L. R. 5 App. Cas. 473 (1880). This was an action of the Attorney-General on the relation of a private person to restrain the defendant company from performing a contract to let its rolling-stock to another company, and from manufacturing rolling-stock for the purpose of so letting it; and the contract was held to be authorized by a local and personal Act of Parliament. Different views were expressed as to the right of the Attorney-General to intervene when the company merely exceeded its powers, but this question was reserved. The right of the company to utilize property not needed for immediate use was also discussed, but the decision was finally made on the terms of the Act of Parliament. In the House of Lords, the Lord Chancellor (Selborne) said: "I assume that your Lordships will not recede from anything that was determined in The Ashbury Railway Company v. Riche. It appears to me to be important that the doctrine of ultra vires, as it was explained in that case, should be maintained. But I agree with Lord Justice James that this doctrine ought to be reasonably and not unreasonably understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the legislature has authorized ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires." Lord Blackburn said: "That case (The Ashbury Railway Carriage & Iron Company v. Riche) appears to me to decide at all events this, that where there is an Act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorize is to be taken to be prohibited; and, consequently, that the Great Eastern Company, created by Act of Parliament for the purpose of working a line of railway, is prohibited from doing anything that would not be within that purpose."

In the Court of Appeal, L. R. 11 Ch. Div. 449, 500, Bramwell, L. J., said: "The first question in this case is whether (setting aside the Statute 26 & 27 Vict. c. 69) the defendants have done, or are doing or threatening to do, something unlawful in the matters complained of. It is said that what they have done, are doing, and threatening to do, is unlawful, contrary to law. The reason given is that it is ultra vires, that they have no power to do it, and that, as they have - no power to do it, it is unlawful. To show that they have no power to do it, the Acts under which they are created and constituted are referred to, and, certainly, among the things expressed that they may do is not to be found the letting of locomotives on hire. There is no prohibition of doing it, but there is no permission. It is said that because they are not empowered or permitted, they are prohibited; and that they are, therefore, disobeying an Act of Parliament, and so breaking the law. This is, undoubtedly, contrary to one's general idea that, unlike some countries where it seems as though nothing is lawful save what is permitted, here, in England, everything is lawful save what is prohibited. It is opposed to those free-trade and laissez faire notions which are commonly supposed to have something in them, and under the influence of which some people think that England has thriven considerably. It is said by Mr. Brice that this doctrine or notion was first put in operation in the cases of Attorney-General v. Great Northern Railway Company (1 Dr. & Sm. 154), and East Anglian Railways Company e. Eastern Counties Railway Company (11 C. B. 775). I was counsel for the plaintiff in the latter case. I know

none at common law before it in which a trace of this doctrine is to be found, and certainly I was never more surprised than at that decision, - a decision that proceeded on grounds which, with all respect be it said, were erroneous, and led, as I believe they have in other cases, to an erroneous result. The mistake was in not distinguishing that many of the provisions of Acts of Parliament constituting companies are not provisions as between the companies and the public, but agreements among the shareholders inter se which constitute their agreement of partnership, their instrument of settlement."

liability of foreign corporations to, 14, 292.

form of, for torts, 272.

for torts of agents and servants, 291, 292.

when transitory, 292, 430.

joinder of corporation and servant, 292.

under statutes providing a remedy for relatives in case of fatal injuries,
limited to the State, 389.

against the company when interfering with private property without com-
plying with the Constitution and with statutes, 167, 266.

at common law, when excluded by a special remedy providing compensa-
tion, 177-180.

AGENTS,

(See REMEDIES.)

subscriptions to capital stock taken by, 47.

over-issues of capital stock by, 127.

torts committed by, 277.

(See SERVANTS.)

AGREEMENTS WITH LAND-OWNERS,

power to purchase real estate, 130, 506.

title or interest acquired, 130, 506.

when within the Statute of Frauds, 130.

rights acquired by license, 131.

easements created only by writing, 132.

State grants, 132.

construction of grants and deeds to the company, 132–134.

covenants and conditions, 135.

conditions precedent or subsequent, 136.

bonds to convey, 137.

specific performance, 137-140.

resulting trusts, 140.

remedy against the company for breach of its contract of purchase, 140.

damages for breach of contract to convey, 141.

to maintain fences, 424, 425.