4' M OlcrttpU Ham i'rliool Hibratg Cornell University Library KD 2079.C87 1870 Law of joint-stock companies and other a 3 1924 021 862 713 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924021862713 THE LAW OF JOINT -STOCK OOMPAlSriES AND OTHER ASSOCIATIONS, AS CONTAINED IN THE STATUTES RELATING TO JOINT-STOOK COMPANIES, THE GENERAL ORDERS AND RULES OP THE COURT OP CHANCERY, AND DECISIONS OP THE COURTS OP LAW AND EQUITY ; ' TOGETHER WITH THE INDUSTRIAL AND PKOVIDBNT SOCIETIES ACTS, AND COUNTY COURT ORDERS THEREON, THE STANNARIES ACT AND RULES, THE ACTS RELATING TO THE ABANDONMENT ,0P RAILWAYS AND WI^fDING-UP OP ".RAILWAY COM'SaNIES"; WITH ' -■ ; NOTES AS TO THE MODE OF PROCEDURE JJNDER THEM. EDWARD W. QGt., SerJeant-at-Law, Recorder gjf^rtsrmutk SEVENTH EDITIOW, BY CHARLES J. O'MALLBT, LL.B., OftJie Middle Temple, Barrister-at-Law. , . ' LONDON: HOKAOE COX, 10, WELLINGTON-STEEET, STRAND, W.C. 1870. LONDON : I'lIINTF.l) liy nOllACE COX, 10, WRLLINGTOS- STREET, STRAND. W C. PREFACE. Since the last edition of this work was published, there have been some changes in, and many additions to, the law of Joint-Stock Companies. The Companies Act of 1862 had then only just become law, and there were no judicial decisions to throw light upon its construction, or explain its difficulties. Now, however, the case is far different, and there is a mass of decisions on every leading section, which are absj^lutely essential to the right understanding of the Act. Nor has the Legislature in the meantime been id^vith regard to this subject. Another Companies Act, that of 1867, "has been passed, which, however, seems to have had less practical effect ^ on the law than was intended ; and recent legislation has also pro- duced ain Industrial and Provident Societies Act, a Companies Seals Act, and enactments for facilitating the liquidation of Companies, for enabling certain Companies to issue Mortgage Debentures, and for the application of the Winding-up provisions of the Companies Acts to Eailway Companies that have abandoned their undertakings. Such have been the additions made to the law of Joint-Stock Companies within the last few years ; and it necessarily follows, that the present work, attempting, as it does, to give a complete statement of that law, in its various applications, is more than a new edition — it is a new book. The provisions which regulate the abandonment of Eailways have been inserted, as proceedings must be taken under them before a Eailway Company can be wound-up under the Companies Acts ; and it has been thought right to add the Stannaries Act of 1869, which now regulates a most important class of associations — the mining partnerships of Devon and Cornwall. flp a 2 3 Trefar.e. The plan has been adopted of appending to each section of the Acts the decisions upon it, and also any dicta of the Judges throwing light upon its construction, and no efforts have been spared to make the arrangement of the notes as methodical and convenient for reference as possible. In the Introductory Treatise a variety of instructions suggested by the experience of the author have been ventured on for the formation and practical working of a Joint- Stock Company. These were accounted a useful feature of the former editions, and, having been revised and corrected by the author, are retained in the present work. For what is placed under the head of Winding-up, and for the notes under the sections of the various Acts, the Editor is responsible. It is hoped that the work will be found as concise as is compatible with a complete statement of the law on the subjects it embraces. CHAELES J. O'MALLET. 2, Bnck Court, Middle Temple, April, 1870. CONTENTS. List of Statutes, &c., inserted at full length ... Table of Cases ... THE LAW AND PRACTICE OP JOINT-STOCK COMPANIES. Definition of limited liability 1 Advantages of limited liability ii The Companies Act, 1862 iv Its operation on previously existing companies ... .,, ... ,,, v Classification of existing companies ... ' .,, ... ... ... ... v I. Companies registered but not formed under the Joint-Stock Companies Act, 1856 ... ... ... ... vi II. Companies formed and registered under the Acts of 1855 and 1856 ... ... ... ,,, ... ,,, ... ... ,.," vii III. Banking companies ... ... ... ... ... ... ... vii rV. Companies established by act of Parliament, letters patent, or royal charter ... ... ... ... ... ... ... ... viii V. Insurance companies ... ... ... ... ... ... ... ix What previously existing companies may register ... ... ... ... x What they must do for this purpose ... ... ... ... ... ... xi What new companies may be formed under the new law ... ... ... xiv How an individual trader may avail himself of limited liability ... ... xv How partnership may avail itself of limited liability ... ... ... xvi Application of the new law ... ... ... ... ... ... ... xvii The scheme of a company ... ... ... ... ... ... ...xviii How to get up a company ... ... ... ... ... ... ... xx Constitution of a company ... ... ... ... ... ... ... xx Formation of a company ... ... ... ... ... ... ... xxii Memorandum of association ... ... ... ... ... ... ... xxii Fees for registration ... ... ... ... ... xxxiii The prospectus ... ... ... ... ... ... xxxv Allotment of shares ... ... ... ... ... ... ... xxxvii Articles of association xxxviii Precedent for ... ... ... ... ... ... ... ... ... xl Shares xlii Transfer of shares ... ... ... ... ... xlii Transmission of shares ... ... ... ... ... ... ... xliii Calls xliii Forfeiture xliv Increase of stock ... ... ... ... ... ... ... ... xlv Increase of capital ... ... ... ... ... ... ... ... xlv Management of the company xlvi The directors... xlvi Powers of directors ... xlviii Disqualification of directors ... ... ... ... ... ... xlviii Proceedings of directors ... ... ... ... ... ... xlviii Accounts ... ... ... ... ... ... ... ... .■■ ] Auditors ... ... ... .. ... .•- ... ••• •.- li 6 Contents. Articles of Association (continued) : Audit ... Meetings ... ... ... ... ... ... ••• Votes Dividends Notices Practical hints for the formation and management of a company . The directors, their duties, powers, and liabilities Proceedings of the board Auditors and accounts ... ... ... ... ... ... ■ Members and shares ... ... ... ... ... Effect of incorporation ... ... ... Contracts by companies Actions by and against companies ... Power to hold land Conveyances by companies OflBcial examination of affairs ... Legal proceedings by and against companies Business of the company Returns to be made by companies Liabilities of members Protection of creditors Winding-up, Modes of winding-up Winding-up by the court The court When a company may be wound-up by the court Proceedings to obtain winding-up order ... Proceedings under winding-up order Liquidators Proof of debts... List of contributories Termination of winding-np ... Voluntary winding-up ... Winding-up subject to the supervision of the court PAGE ... lii ... m ... liv ... Iv ... Iv ... Ivi ... Iviii ... Ix ... Ixiv ... Ixv Ixviii ... Ivg Ixxiii Ixxiv Ixxiv Ixxiv ...Ixxv Ixxvii ...Ixxx Ixxxi Ixxxiii Ixxxv Ixxxvi Ixxxviii ... xci ... xoiv ...xcvii ci ... cii ... evil ... cvii ,,, cxii 1 1 1 2 2 THE COMPANIES ACT, 1862. AiUUlfGEMENT OF THE SECTIONS. ^(^- Preliminary. 1. Short title of act 2. Commencement of act "'. \[[ 3. Definition of insurance company 4 Prohibition of partnerships exceeding certain number (20 Vict. o. 47, 8. 4 ; 21 Vict. 0. 49, s. 13*) 5. Division of act Paet I. Constitution and Incorporation of Companies and Assooutions UNDER THIS Aot. Memorandum of Association. C. Mode of forming company (20 Vict. u. 47, 3. 3) 3 Prospectus of a company "..' \\ '" 5 Recovery of deposit, &o. on the project proving abortive "" .".'.' 5 Action to recover deposit ... ... ... ... ., ... g Subaoribors to tho momorandum competent to act as directors .".".' 6 These refer to corresponding sections in former acts. Gontentn. SECfr. PAOE 7. Mode of limiting liability of members ... ... ... ... ... 7 8. Memorandum of association of a company limited by shares (20 Vict. 0.47,8.5) ,. ... 7 The objects stated in the memorandum must be adhered to ... 8 Abandonment of objects ... ... ... ... ... ... 9. Memorandum of association of a company limited by guarantee ... 10 10. Memorandum of association of an imlimited company (20 Vict. c. 47, s. 10) ... 11 11. Stamp, signature, and effect of momorandum of association (20 Vict. c. 47, s. 7) 11 12. Power of certain companies to alter memorandum of association (20 Vict. li. 47, s. 37) 12 13. Power of companies to change name ... ... ... ... ... 12 Articles of Association. 14. Regulations to be prescribed by articles of association (20 Vict. c. 47, s. 9) 13 Shareholders bound to know contents of articles ... ... ... 14 The public bound to notice contents of articles ... ... ... 15 Contracts contained in articles ... ... ... ... ... 15 Directors ... ... ... ... ... ... ... ... 16 Powers of borrowing ... ... ... ... ... ... ... 19 Debentures ... ... ... ... ... ... ... ... 20 Mortgage of future calls ... ... ... ... ... ... 22 Bills of exchange ... ... ... ... ... ... ... 23 Power to issue prefei-enoe shares ... ... ... ... ... 23 Forfeiture and cancellation of shares ... ... ... ... 23 Lien of company on shares ... ... ... ... ... ... 28 Provision for bankruptcy of shareholder ... ... ... ... 29 Costs of business carried on wftj-a wVes ... ... 29 15. Application of Table A. (20 Vict. c. 47, s. 9) 29 16. Stamp, signature, and effect of articles of association (20 Vict. c. 47, B. 11) 30 General Provisions. 17. Kegistration of memorandum of association and articles of association, with fees, as in Table B. (20 Vict. c. 47, s. 12) 31 18. Effect of registration (20 Vict. c. 47, s. 13 ; 21 Vict. c. 14, s. 4) ... 32 Definition of body corporate ... ... ... ... ... 33 Contracts by companies ... ... ... ... ... ... 35 The directors of a company as agents ... ... ... ... 36 Directors as trustees ,.. ... ... ... ... ... ... 40 Companies suing at law ... ... ... ... ... ... 43 ■ — in equity ... ... ... ... ... ... 44 Being sued at law ... ... ... ... ... ... ... 45 in equity ... ... ... ... ... 47 19. Copies of memorandum and articles to be given to members (20 Vict. 0. 47, s. 27 ; 21 Vict. o. 14, s. 10) ... ... 50 20. Prohibition against identity of names in companies (20 Vict. o. 47, s. 6) 50 21. Prohibition against certain companies holding land (20 Vict. o. 47, s. 38) 51 PakT II. DiSTKIBDTION OF CapITAI. AND LlABIUTY OP MeMBBES OF COMPANIES AND Associations undee this Act. Distribution of Capital. 22. Nature of interest in company (20 Vict. o. 47, s. 15) 51 Transfers ... ... ... ... ... ... ..• ... 55 Transfer to an infant 55 Contents. SEcrr. Nature of interest in company (continued) : Sale of shares PAGE 56 59 63, 64 ,.. 63 80 89 Usage of the Stock Exchange ^^ Dealers or jobbers Informal transfers Transfers in blank at law inequity oi Actions on sales of shares ... ... ... ••• °' Action by seller against purchaser •■■ "^ purchaser against seller °° Specific performance and indemnity o9 Kegistration of transfers ... ... ... ... ... ••• ^° 23. Definition of "member" (20 Vict. c. 47, S3. 8, 19) 77 Contract of membership Qualified contracts for shares... BescisBon of contract on the ground of fraud on the ground of variance between prospectus and memo- randum or articles ... ... ... ... •-• ... °4 Power to rescind barred by laches or acquiescence ... ... 95 Effect of winding-up order on power of rescission ... ... ... 98 24. Transfer by personal representative ... ... ... ... •.• 100 25. Register of members (20 Vict. c. 47, ss. 16, 17) 100 26. Annual list of members (20 Vict. c. 47, s. 17) 102 27. Penalty on company not keeping a proper register (20 Vict. c. 47, s. 18) 103 28. Company to give notice of conversion of capital into stock (21 Vict. c. 14, B. 6) 103 29. Effect of conversion of shares into stock (21 Vict. c. 14, s. 7) 103 30. Entry of trusts on register (20 Vict. o. 47, s. 19 ; 21 Vict c. 49, s. 15) 104 31. Certificate of shares or stock (20 Vict. u. 47, 8. 21) 105 Form of certificate ... ... ... ... ... ... ••■ 105 32. Inspection of register (20 Vict. c. 47, s. 23) 106 83. Power to close register (20 Vict. c. 47, o 24) _ ...106 34. Notice of increase of capital and of members to be given to registrar (20 Vict. c. 47, s. 37) 107 35. Remedy for improper entry or omission of entrv in register (20 Vict. c. 47, B. 25 ; 21 Viet. c. 14, s. 9) ... .". 107 36. Notice to registrar of rectification of register ... ... ... 115 37. Register to be evidence (20 Vict. c. 47, 3. 2G) 116 Liability of Members. 38. Liability of present and past members of company (20 Vict. c. 47, s. 62) 110 Part III. Management and Administr^vtion of Companies and Associations UNDER THIS ACT. Provisions for Protection of Creditors. 39. Registered ofBce of company (20 A'iot. 0. 47, s. 28) 120 40. Notice of situation of registered offloo (20 Viet. o. 47, s. 29) 121 41. Publication of name by a limited company (20 Vict. o. 47, s. 30) ... 121 42. Penalties on non-publication of name (20 Vict. u. 47, s. 31) ... ... 122 43. Register of mortgages 123 Form of register of mortgages... ... ... ... ... ... 123 44. Certain companies to publish statement entered in schedule (22 Vict. 0. 91, s. i) 123 45. List of directors to bo sent to registr.ar ... ... ... ... ... 124 ■111. Pon;iUy on company not keeping register of directors ... ... 124 47. Promissory notes and bills of exeluinge (20 Vict. o. 47, o. 43) ,,. 125 Contents, SECT. .... . VA.01S 48. Prohibition against carrying on business -with less than seven members (20 Viot. c. 47, 3. 39) 129 Provisions for Protection of Members, 49. General meeting of company (20 Viot. 0. 47, s 32) 129 50. Po-vrer to alter regulations by special resolution (20 Vict. c. 47, s. 33) 130 61. Definition of special resolution (20 Vict. c. 47, s. 34) ... 131 52. Provision where no regulations as to meetings... ... ... ... 132 53. Registry of special resolutions (20 Vict. c. 47, s. 35) 132 54. Copies of special resolutions (20 Viet. c. 47, s, 36) 133 55. Execution of deeds abroad (20 Vict. c. 47, s. 49) 133 56. Examination of affairs of company by inspectors (20 Vict. o. 47, s. 48 ; 21 Vict. c. 49, s. 14) 133 57. Application for inspection to be supported by evidence ... ... 134 58. Inspection of books (20 Vict. 0. 47, 3. 49) 134 59. Result of examination, how dealt with (20 Vict. c. 47, a. 50) 134 60. Power of company to appoint inspectors (20 Vict. c. 47, s. 51) ... 135 61. Report of inspectors to be evidence (20 Vict. c. 47, b. 52) 135 Notices. 62. Service of notices on company (20 Vict. c. 47, s. 53) 136 63. Rules as to notices by letter (20 Vict. c. 47, s. 54) 136 64. Authentication of notices of company (20 Vict. o. 47, s. 55) 136 Legal Proceedings, 65. Recovery of penalties (20 Vict. c. 47, 8. 56) 136 66. Application of penalties (20 Vict. c. 47, s. 56) 137 ' 67. Evidence of proceedings at meetings (20 Viot. c. 47, s. 40 ; 8 Vict. 0.16,83.98,99) 137 68. Jurisdiction of vice- warden of Stannaries ... ... ... ... 139 69. Provision as to costs in actions brought by certain limited companies (21 Vict. c. 14, s. 24) 140 70. Declaration in action against member ... ... ... ... ... 141 Defence to action for calls ... ... ... ... ... ... 143 Form of declaration ,,, ... ... ... ... ... ... 145 Alteration of Forms. 71. Board of Trade may alter forms in schedule (20 Vict. c. 47, o, 58 ; 21 Viot. c. 14, s. 22) 146 Arbitrations. 72. Power for companies to refer matters to arbitration ... ... ... 146 73. Provisions of Railway Companies Arbitration Act to apply 146 Pabt IV. Winding-up of Companies and Associations under this Act. Preliminary. 74. Meaning of contributory (20 Vict. c. 47, s. 65) '. 147 75. Nature of liability of contributory (21 Vict. c. 14, 3. 13) 148 Liability of bankrupt shareholder ... ... ... ... ... 149 Deeds of arrangement ... ... ... ... ... ... ... 149 76. Contributories in case of death (20 Vict. o. 47, s. 65) 150 77. Contributories in case of bankruptcy (12 & 13 Viot. c. 108, s. 14) ... 151 78. Contributories in case of marriage (12 & 13 Vict. c. 108, s. 14) ... 151 Winding-up by Court. 79. Circumstances under which company may be wound-up by court (20 Vict. ,.. 47, s. (17) 15^ Contents. SECT. PAGE 80. Company when deemed unable to pay ita debts (20 Vict. c. 47, s. 68) 155 81. Definition of " the court " (20 Tiet. c. 47, a. 60 ; 20 & 21 Vict. c. 78, 8.12) V 157 82. Application for winding-up to be made by petition (20 Vict. c. 47, a. 69) 158 83. Power of court 161 84. Commencement of winding-up by court (20 Vict. c. 47, n. 64) ... 162 85. Court may grant injunction (20 Vict. 0. 47, a. 84) 162 86. Courae to be puraued by court on hearing petition (20 Vict. u. 47, aa. 70, 71, 72) 164 Orders on contributoriea' petitions ... ... ... ... ... 170 Reversal or diacharge of order... ... ... ... ... ... 172 Order notice of discharge to aervanta... ... ... ... ... 173 87. Actions and suits to be stayed after order for winding-up (20 Vict. c. 47, a. 84) 173 88. Copy of order to be forwarded to registrar (20 Vict. o. 47, o. 73) ... 175 89. Power of court to stay proceedinga (20 Vict. c. 47, s. 85) ... ... 175 90. Effect of order on share capital of company limited by guarantee ... 176 91. Court may have regard to wishes of creditors or contributoriea ... 176 Official Liquidators. 92. Appointment of officialliqnidator (20 Vict. c. 47, s. 88) 177 93. Resignations, removals, filling up vacancies, and compensation ... 179 94. Style and dutiea of official liquidator (20 Vict. c. 47, a. 89) 179 95. Powers of official liquidator (20 Vict. c. 47, s. 90 ; 22 Vict. c. 60, s. 18) 180 96. Discretion of official liquidator (22 Vict. c. 60, s. 9) 184 97. Appointment of solicitor to official liquidator (20 Vict. u. 47, s. 91) ... 184 Ordinary Powers of Court. 98. Collection and application of assets (20 Viot. c. 47, s. 75) 185 Settlement of list of contributories ... ... ... ... .,. 185 Application to remove name from list ... ... ... ... 186 Rehearing application ... ... ... ... ... ... ... 137 Application on the ground that company was improperly con- stituted ... ... ... ... ... ... ... ... igg Application on the ground of infancy 188 Trustees ... ... ... ... ... ... ... ... ... igg Companies ... ... ... ... ... ... .. ... 19Q Forfeited aharea... ... ... ... ... ... ... ... 190 Illegal subdivision of shares ... ... ... ... ... ... 190 Shares taken conditionally ... ... ... ... . ... ... 191 Holders of fully paid-up shares 192 Scripholders ... ... ... ... ... ... ... jg2 Invalid transfers ... ... ... ... ... ... .'_'. 193 Removal of transferor's name ... ... ... ... ... ... 194 99. Provision aa to representative contributories (11 & 12 Vict. 45' s. 76) ■ _' 197 100. Ppwer of court to require dehvery of property (11 & 12 A'iot. 0. 45, ?• 66) ■ _ '_ jgy 101. Power of court to order payment of debts by contributory (11 & 12 Viot. 0. 45, s. 66) __ j^gg 102. Power of court to make calls (20 Vict. 0. 47, a!'82) ..." .,". '.'.'. 200 103. Power of court to order payment into bank "', " 202 104. Regulation of account with court (12 & 13 Vio't.'c. 106,' a. 39)" ..." 203 105. Provision in case of representative contributory not payin"- moneys "" ordered °_ 203 106. Order conclusive ovidoneo (11 & 12 Vict. c. 45,'s. 89)!'.'. .'. " 203 Contents. SECT. p^gj, 107. Court may exclude creditors not proving witliin a certain time (20 Vict. 0. 47, t). 84) 204 108 Proceediuga in the court of the vice-warden of the Stannariea on proof of debts 204 109. Court to adjust rights of contribntories (20 Vict, o, 47, a. 86)' ... 205 110. Court to order coats (20 Vict. 0. 47, s. 87) 205 111. Dissolution of company (20 Vict. o. 47, a. 93) ... ... 205 112. Regiatrar to make minute of dissolution of company (20 Vict. c. 47, s- 94) 206 113. Penalty on not reportingdissolution of company (21 Vict. c. 14, s. 20) 206 114. Petition to be lis pendens (11 & 12 Vict. c. 45, s. 125) 206 Extraordinary Powers of Court. 115. Power of court to summon persons before it suspected of having pro- perty of company (20 Vict. c. 47, ». 77 ; 11 & 12 Vict. c. 45, s. 63) 206 116. Special provisions as to court of vice-warden of the Stannaries ... 209 117. Examination of parties by court (20 Vict. 0. 47, s. 78) 209 118. Power to arrest contributory about to abscond, or to remove or con- ceal any of his property (21 Vict. u. 14, o. 11) 210 119. Powers of court cumulative 210 Enforcement of and Appeal from Orders. 120. Power to enforce orders (20 Viot. o. 47, s. 60) 211 121. Power to order ooutributories in Scotland to pay calls (22 Vict. c. 60, a. 5) 211 122. Order made in England to be enforced in Ireland and Scotland (22 Vict. c. 60, 8. 12) 211 123. Mode of dealing with orders to be enforced by other courts (22 Vict. c. 60, o. 13) 212 124. Appeals from orders (U & 12 Vict. c. 45, as. 101, 102 ; 12 & 13 Vict. c. 108, o. 33) 212 125. Judicial notice to be taken of signature of officers (11 & 12 Viot. u. 45,». Ill) 214 126. Special commissioners for receiving evidence (20 Vict. c. 47, s. 101) 215 127. Court may order the examination of persons in Scotland (12 & 13 Vict. c. 108, ». 21) 215 128. Affidavits, &c., may be sworn in Ireland, Scotland, or the colonies before any competent court or person (12 & 13 Viot. c. 108, s. 24) 216 Voluntary Winding-up of Company. 129. Circumstances under which company may be wound-up voluntarily (20 Vict. u. 47, s. 102) 217 130. Commencement of voluntary winding-up (20 Viot. o. 47, s. 64) ... 218 131. Effect of voluntary winding-up on status of company (20 Viot. c. 47, s. 104) 219 132.' Notice of resolution to wind-up voluntarily (20 Vict. c. 47, s. 103)... 220 133. Consequences of voluntary winding-up (20 Vict. o. 47, s. 104) ... 220 134. Effect of winding-up on share capital of company limited by guarantee 225 135. Power of company to delegate authority to appoint liquidators ... 225 136. Arrangement when binding on creditors ... ... ... ... 225 137. Power of creditor or contributory to appeal 226 138. Power for liquidators or contribntories in voluntary winding-up to apply to court (22 Viot. 0. 60, a. 14) 226 139. Power of liquidators to caU general meeting (21 Vict. c. 14, s. 18) ... 228 140. Power to fill up vacancy in Uquidatora (22 Viot. c. 60, a. 15) ... 228 141. Power of court to appoint liquidatora ... ... ... ... ... 228 142. Liquidatora on conclusion of winding-up to make up an account (20 Vict. c. 47, a. 104) 229 GonteutH. BBOT. VASE 143. Liquidators to report meeting to registrar (20 Vict. c. 47, s. 104) ... 229 144. Costs of voluntary liquidation (20 Vict. c. 47, s. 104) 230 145. Saving of rights of creditors (20 Vict. c. 47, s. 105) ... 230 146. Power of court to adopt proceedings of voluntary winding-up (21 Vict. c. 14, s. 19) 230 Winding-up subject to the Supervision of the Court. 147. Power of court, on application, to direct winding-up, subject to super- vision (21 Vict. c. 14, s. 19) 231 148. Petition for winding-up, subject to supervision (22 Vict. n. 60, B. 2) 232 149. Court may have regard to wishes of creditors... ... ... ... 232 150. Power of court to appoint additional liquidators in winding-up subject to supervision (22 Vict. c. 60, B. 15) ...234 151. Effect of order of court for winding-up, subject to supervision (22 Vict. u. 60, s. 4) 234 152. Appointment in certain oases of voluntary liquidators to office of official Uquidators (22 Vict. c. 60, s. 8) 235 Supplemental Provisions. 153. Dispositions after the commencement of the winding-up avoided (20 Vict. c. 47, s. 73) 235 154. The books of the company to be evidence (20 Vict. o. 47, o. 81) ... 23H 155. As to disposal of books, accounts, and documents of the company ... 238 156. Inspection of books (22 Vict. c. 60, s. 7) 239 157. Power of assignee to sue ... ... ... ... ... ... ... 240 158. Debts of all descriptions to be proved (12 & 13 Vict. c. 106, s. 178) 240 159. General scheme of liquidation may be sanctioned (22 Vict. c. 60, s. 10) 244 160. Power to compromise (22 Vict. c. 60, s. 19) 245 161. Power for Uquidators to accept shares, cSrc, as a consideration for sale of property of company (21 Vict. u. i4, 3. 17) 246 162. Mode of determining price ... ... ... ... ... ... 250 Companies Clauses Consolidation Act, 1845, ss. 128 — 134 ... 250 163. Certain attachments, sequestrations, and executions to be void (20 Vict. 0. 47, 3. 80) 251 164. Fraudulent preference (20 Vict. c. 47, 3. 76) 253 165. Power of court to assess damages against deUnquent directors and ofScers ... ... ... ... ... ... ... ,., __. 254 166. Penalty on falsification of books (20 Vict. c. 47, a. 79) 255 167. Prosecution of delinquent directors in the case of windinc-up by court (22 Vict. c. 60, s. 20) ... 256 168. Prosecution of delinquent directors, &c., in case of voluntary winding- up (22 Vict. c. 60, s. 21) ... 256 169. Penalty of perjury (11 & 12 Vict. o. 45, s. 113) '". 257 Power of Courts to viqke Rules. 170. Power of Lord Ohanoellor of Groat Britain to make rules (20 Vict 0.47,3.99) ... .'257 171. Power of Court of Session in Scotland to make rules"(''0 vio't 4*7' s. t.7) "; • • ' 257 172. Power to make rules in Stannaries Coiut (20 Vict. u. 47, s. 98) .'..' 257 173. Power of Lord Chancellor of Ireland to make rules ... ' ... '"' 258 Paiit V. Registration Ofitoh. 174. ConstiUition of registration oiHco (2U Viol. c. 47, o. 106) 258 Contents. SECT. PAOE Part VI. Application op Act to Companies eeqisteeed under the Joint-Stock Companies Acts. 175. Definition of Joint-Stock Companies Acta 260 176. Application of act to companies formed under Joint-Stoclc Companies Acts 261 177. Application of act to companies registered under Joint-Stock Com- panies Acts 261 178. Mode of transferring shares ... ... ... ... ,,. ... 262 Part VII. Companies authorised to register under this Act. 179. Regnlationa as to registration of existing companies 262 180. Companies capable of being registered (21 Vict. a. 14, s. 29) ... 263 181. Definition of joint-stock company ... ... ... ... ... 264 182. Proviso as to banking company (22 Vict. 0. 91, s. 1) ... ... ... 264 183. Requisitions for registration by companies (20 Vict. c. 47, s. Ill) 264 184. Requisitions for registration by existing company not being a joint- stock company ... ... ... ... ... ... ... ... 265 185. Power for existing company to register amount of stock instead of shares (21 Vict. 0. 14, s. 30) 265 186. Authentication of statements of existing companies(20 Vict. c. 47,s. 112) 266 187. Registrar may require evidence as to nature of company 266 188. On registration with limited liability, notice to be given to customers (22 Vict. i>. 91, s. 3) 266 189. Exemption of certain companies from payment of fees (21 Vict. c. 14, s. 32) 266 190. Power to company to change name (20 Vict. c. 47, s. 114) 267 191. Certificate of registration of existing companies (20 Vict. o. 47, s. 113) 267 192. Certificate to be evidence of compliance with act (20 Vict. c. 47, s. 115) ■ ... 267 193. Transfer of property to company (21 Vict. c. 49, s. 16) 268 194. Registration under this act not to affect obligations Incurred previously to registration (21 Vict. c. 49, s. 8) .». ...268 195. Continuation of existing actions and suits (21 Vict. c. 49, s. 10) ... 268 196. Effect of registration under act (21 Vict. c. 14, s. 33; 11 & 12 Vict. 0.45,8.3) 269 197. Power of court to restrain further proceedings (20 Vict. o. 47, s. 84) 271 198. Effect of order for winding-up company (20 Vict. o. 47, s. 73) ... 271 Part VIII. Application op Act to unregistered Companies. 199. Winding-up of unregistered companies (11 & 12 Vict. u. 45, ss. 1, 2, 3) 271 Mutual insurance societies 274 Scrip companies ... ... ... ... ... ... ,,, 274 Cost book mining companies 274 200. Who to be deemed a contributory In the event of company being wound-up (11 & 12 Vict. c. 45, s. 3) 276 201. Power of court to restrain further' proceedings (20 Vict, c. 47, s. 84) 276 202. Effect of order for winding-up company (20 Vict. o. 47, s. 68) ... 277 203. Provision in case of unregistered company (11 & 12 Vict. c. 45, s. 29) 278 204. Provisions in tliis part of act cumulative ... ... ... ... 279 Part IX. Repeal of Acts, and Tempokaet Provisions. 205. Repeal of acts 279 206. Saving clause as to repeal ' 279 207. Saving of existing proceedings for winding-up 280 208. Savingof conveyance deeds 280 209. Compulsory registration of certain companies (21 Vict. o. 14, s. 27) 281 13 Gontent.t. PAGE 210.'Penaltyonoompany not registering (21 Vict. 0.14, s. 28) 282 211. Temporary power for company to change registered office ^»J 212. Kestriotions on issue of certificate ■^°" FmsT Schedule. Table A.— Eegulationa for management of a company limited by shares ... 284 QUnrnq ... ... ... .•• ■•■ ■•• ^84 snares ... ... ... ... . Calls on shares ^°_ Transfer of shares ^°2 Transmission of shares ^°^ Forfeiture of shares 286 Conversion of shares into stock ... ... ... ••. ••• •■• 287 Increase in capital 287 General meetings 288 Proceedings at general meetings 288 Votes of members 289 Directors ... ... ... ... ... ••• ••■ •■• ••• 290 Powers of directors ... ... ... ... ... ... ••• 290 Disqualification of directors 291 Rotation of directors 291 Proceedings of directors 292 Dividends 292 Accounts ... ... ... ... ... ... ... ... ... 293 Audit 294 Notices 294 Balance sheet ... ... ... ... ... ... ... ... ... 296 Table B. — Table of fees to be paid to the registrar of joint-stock companies by a company having a capital divided into shares ... ... Table C. — Table of fees to be paid to the registrar of joint-stock com- panies by a company not having a capital divided into shares ... — Form D. — Form of statement referred to in Part III. of the act ... ... 298 297 297 Second Schedule. Form A. — Memorandum of association of a company limited by shares ... 299 Form B. — Memorandum and articles of association of a company limited by guarantee, and not having a capital divided into shares ... ... 299 Memorandum of association 299 Articles of association to accompany preceding memorandum of association 300 Definition of members ... ... ... ... ... ... ... 300 General meetings 300 Proceedings at general meetings 301 Votes of members ... ... ... ... ... ... ... ... 302 Directors 302 Powers of directors ... ... ... ... ... ... ... ... 302 Election of directors... ... ... ... ... ... ... ... 302 Business of company 302 Accounts 302 Notices 303 Winding-up 303 Form 0. — Memorandum and articles of association of a company limited by guarantee, and having a capital divided into shares 304 Memorandum of association... ... ... ... ... ... ... 304, Articles of association to accompany preceding memorandum of asso- ciation 304. Form D. — Memorandum and articles of association of an unlimited com- pany, having a capital divided into shares ... ... ... ... 305 Memorandum of association... ... ... ... ... ... .__ 305 Contents. PAGE Form D. (continued) : Articles of association to accompany tl*o preceding memorandum o£ association ... ... ... ... ... ... ... ... ... 306 Capital of the company 306 Application of Table A 306 Form E. — Summaiy of capital and shares 307 Form F. — ^Licence to hold lands 308 Thied Schedtoe. First part 308 Second part 309 Note on banking companies 309 RAILWAY COMPANIES ARBITRATION ACT, 1859. (22 & 23 Vict. cap. 59.) SECT, Arrangement of the Sections. 1. Short title, " railway companies"... ... ... ... ... ... 311 2. Power for railway companies to refer matters to arbitration ... ... 311 3. Power to alter or revoke agreements for reference ... ... ... 312 4. Agreements to be carried into effect ... ... ... 312 6. Reference to a single arbitrator ... ... ... ... ... ... 312 6. Reference to two or more arbitrators ... ... ... ... ... 312 7. Appointment of arbitrators by companies ... ... ... ... 312 8. • Board of Trade 312 9. companies to supply vacancies ... 312 10. Board of Trade to supply vacancies ... 313 11. not revocable ... ... ... ... 313 12. umpire by arbitrators ... ... ... ... ... 313 13. . Board of Trade 313 14. -: arbitrators to supply vacancy ... ... 313 15. Board of Trade to supply vacancy ... 314 16. Succeeding arbitrators and umpires to have powers of predecessors ... 314 17. Reference to umpire ... ... ... ... ... ... ... 314 18. Power for arbitrators, &c., to call for books, &o., and administer oath 314 19. Procedure in the arbitration ... ... ... ... 314 20. Arbitration may proceed in absence of companies 314 21. Several awards may be made ... ... ... ... ... ■■■ 315 22. Awards made in due time to bind all parties 315 23. Power for umpire to extend period for making his award ... ... 315 24. Awards not to be set aside for informality ... ... ... ••• 315 25. Awards to be obeyed ... ... ... ... ••• ••• ■■• 315 26. -Agreements, arbitrations, and awards to have effect ... ... ... 316 27. Costs of arbitration and award 316 28. Payment of costs 31C 29. Submission to arbitration to be made a rule of court 316 Generai, Okdbk and Rules op the Court op Chancery to regulate the Mode op Proceeding under the Companies Act, 1862. Order of Court, 11th day of November, 1862. Petition to wind-up company ... ... ... ... ••■ ■•■ ••• 317. Order to wind-up company 320 Official liquidator 321 Order regulating remuneration of official liquidator 323 Contents. PAGE Proof ot debts 324 List o£ contributories 326 Sales of property 327 Calls ... 328 Payment in of moneys and deposit of securities ... ... ... ... 329 Delivery out of securities, and payment out and investment of moneys ... 331 Meetings of creditors or contributories 332 Direction or sanction of the judge' 332 Applications to the court or judge under sects. 137, 138, 141, 167, and 168, of the act -..333 Orders 333 Advertisements ... ... ... ... ... ... ... ... ... 333 Admission of documents 334 Affidavits 334 Certificate of chief clerk ... ... ... ... ... ... ... 334 Register and file of proceedings ... ... ... ... ... ... 334 Provisional ofiBoial liquidators ... ... ... ... ... ... ... 335 Attendance and appearance of parties ... ... ... ... ... 335 Service of summonses, notices, &o. ... ... ... ... ... ... 336 Termination of winding-up 337 Duties of solicitor of official liquidator 337 Forms ; 333 Pees „ 338 Taxation of costs ... ... ... ... ... ... ... ... 333 Power of judge 338 General directions ... ... ... ... ... ... .._ ... 333 Application of rules ... ... ... ... ... ... ... ... 333 Commencement of rules ... ... ... ... ... ... , ... 339 Interpretation ... ... ... ... ... ... ... ... ... 339 The PmST Schedule. Fees and charges to be allowed to solicitors 339 The Second Schedule. Pees to be collected by means of stamps ... ... ... .. ... 34Q In the judges' chambers ... ... ... ... ... ' "_' g^^Q registrar's office ... ... ... ... ... '\ " ^y\ examiner's office ... ... ... ... ... ..' '" ^^n record and writ clerks' office, and report office ..'. '". '", 340 taxing masters' office ... ... ... ... ..'. "" oaq office of the Lord Chancellor's principal secretary ... ",[ 340 office of the secretary at the roUa ... ... ... .'" .\" 340 The. Third Schedule. forms. 1. Advertisement of petition [Rule 2] 340 2. Affidavit verifying petition [Rule 4] ... [ 34V 3. Order for winding-up by the court (25 * 26 Vict. c. 89,' ss. 8i"'82') "'" 341 4. Order for winding-up subject to supervision (25 & 26 Vict c 89 S3. 147, 148) • "''' . 6. Advertisement of order to wind-up [Rule 6] '040 6. Advertisement of time and place fixed for the appointment of" officii liquidator [Rule 9] "luwai 7. Proposal for appointment of official liquidator' (and 'Sureties) where " Form No. 6 has been issued ^ ""oio 8. Order appointing an official liquidator [Rules 10 'ill 040 9. Order appointing a provisional official liquidator [Rnle's-lO li"l5 nqi q4q 10. Recognisance of the official liquidator and sureties [Rule 10] ' ' 343 Contents. FAQB 11. Affidavit.ot sureties [Rule 10] 344 12. Sanction of appointment of soKoitor to oflBoial liquidator and appoint- ment (25 & 26 Viot. 0. 89, s. 97) 344 13. Order for payment of money or delivery of books, &o., to official liquidator (25 & 26 Viot. c. 89, ss. 100, 101) 345 14. Direction to open account at the Bank of England [Rules 11, 32, 36-44] 345 16. Advertisement of appointment of official liquidator [Rule 14] ... 346 16. Advertisement for creditors [Rule 20] ... ... ... ... ... 346 17. Affidavit of official liquidator as to debts and claims [Rule 22] ... 346 18. Exliibit referred to in affidavit No. 17 347 19. Notice to creditors of allowance of debt [Rule 23] 348 20. Notice to creditors to come in and prove tiieir debts [Rule 24] ... 348 21. Affidavit of creditor in proof of debt [Rule 24] 348 22. Certificate of chief clerk as to debts and claims [Rule 28] ... ... 349 23. Notice to creditors to attend to receive debt [Rule 28] 350 24. Affidavit in support of list of contributoriea [Rule 29] ... ... ... 351 25. List of contributories referred to in Form No. 24 ... 351 26. Notice to contributories of appointment to settle list of contribu- tories ... ... ... ... ... ... ... ... ... 352 27. Affidavit of service of notice [Rule 30] 353 28. The schedule referred to in Form No. 27 354 29. Supplemental list of contributories and affidavit in support [Rule 29] 354 30. Supplemental list of contributories referred to in Form No. 29 ... 355 31. Certificate of chief clerk of settlement of the list of contributories [Rule 31] , 355 32. Order on application to vary list [Rule 29] 356 33. Affidavit of official liquidator in support of proposal for call [Rule 33] 357 34. Summons for intended call [Rule 33] 357 35. Advertisement of intended call [Rule 33J 358 36. General order for a call [Rule 34] 358 37. Notice to be served with the general order for a call [Rule 34] ... 358 38. Affidavit in support of application for order for payment of call due from contributories [Rule 35] ... ... ... ... ... ... 359 39. Order for payment of call due from a contributory [Rule 35] 359 40. Notice to be endorsed on, or served with every order directing pay^ ment of money into the Bank of England [Rule 39] 360 41. Certificate of payment of money into the Bank of England ... ... 360 42. Affidavit of service of order for payment of call [Rule 35] 361 43. Affidavit of non-payment of money by order directed to be paid into the Bank of England [Rule 40] 361 44. Bequest to invest cash in Government stock or Exchequer bills [Rule 43] 362 45 Notice (or advertisement) of meeting of creditors or contributories [Rules 45, 46] 363 46 Appointment of proxy to vote at meeting of creditors or contributories [Rule 46] .-363 47. Memorandum of appointment of person to act aa chairman at meeting of creditors or contributories [Rule 47] 363 48 Chairman's report of resvlt of meeting of creditors or contributories [Rules 45, 46, 47] 364 49 Memorandum of sanction of judge to accepting biU of exchange [Rule 48] - 365 50. Memorandum of agreement of compromise with a contributory [Rule 49] — ;■■ 365 61 Memorandum of sanction of judge to agreement of compromise [Rule 49] ...366 52. Order or memorandum of the sanction of the judge for certain acts to be done by -the official liquidator [Rule 50] 367 a* " Contents. PAGE 53. Appearance book [Rule 62] ... ,'",. g" 54. Summons for persons to attend at chambers to be examined (^o & ^b Vict. 0. 89, s. 115) ••• ••• , :r 55. Certificate of the company being completely wound-np, and ot tne official liquidator having passed his final account [Rule 66J ... rfbs 66. Order to dissolve the company [Rule 66] <*o° General Rules and Okdebs roK kegulating the Practice Pees and Costs ON Appeals to tiie Lord Warden of the Stannaries. Rules 369 Forms ^i* Schedule of fees °'l Appendix (18 Vict. c. 32, a. 26) 378 THE COMPANIES ACT, 1867. (30 & 31 Vict. cap. 131.) SECT. Pi-eliminary. 1. Short title 38Q 2. Act to he construed as one with 25 & 26 Vict. c. 89 380 3. Commencement of act ... ... ... ... .•■ ••• -•• 380 Unlimited LiahiKty of Directors. 4. Company may have directors with unlimited liability ... ... ... 380 5. Liability.of directors, past and present, where liability is unlimited ... 381 6. Director with unlimited liability may have set-off as under sect. 101 of 25 & 26 Vict. u. 89 ... ...383 7. Notice to be given to director on his election that his liability wQl be unlimited ... ... ... ... ••• ... ... ... 382 8. Existing limited company may, by special resolution, make liability of directors unlimited ... ... ... ... ... ... ... 383 Reduction of Capital and Shares. 9. Power to company to reduce capital ... ... ... ... ... 384 10. Company to add "and reduced" to its name for a limited period ... 384 11. Company to apply to the court for an order confirming reduction ... 384 12. Definition of the court ... ... ... ... ... ... ...385 13. Creditors may object to reduction, and list of objecting creditors to be settled by the court ... ... ... ... ... ... ... 385 14. Court may dispense with consent of creditor on security being given for his debt 386 15. Order and minute to be registered ... ... ... ... ... 38G 16. Minute to form part of memorandum of association ... ... ... 387 17. Saving of rights of creditors who are ignorant of proceedings 387 18. Copy of registered minute ... .,, ... ... ... ... 388 19. Penalty on concealment of name of creditor ... ... ... ... 388 20. Power to make rules extended to making rules concerning matters in this act 388 Subdivision of Shares. 21. Shares may be divided into shares of smaller amount 389 22. Special resolution to bo embodied in memorandum of association ... 389 Oontents, SECT. PACE Associations not for Profit. 23. Special provisions as to associations formed for purposes not of gain,,. 390 Calls upon Shares. 24. Company may have some shares fully paid and others not 390 25. Manner in which shares are to be issued and hold 391 Transfer of Shares. 26. Transfer may be registered at request of transferor 391 Share Warrants to Bearer. 27. Warrant of limited shares fully paid-up may be issued in name of bearer 391 28. Effect of share warrant 392 29. Ee-registratiou of bearer of a share warrant in the register 392 30. Regulations of the company may make the bearer of a share warrant a member ... ,,, ... ... ... ... ... 392 31. Entries in register where share warrant issued... , 393 32. Particulars to be contained in annual summary ... ... ... 393 33. Stamps on share warrants... ... ... ... ... .., ... 394 34. Penalties on persons committing forgery ... ... ... ... 394 35. Penalties on persons falsely personating owner of shares ... ... 394 36. Penalties on persons engraving plates, &c. ... ,., ... ... 394 Contracts. 37. Contracts how made ... ,,. ... ... ... ... ... 395 38. Prospectus, &o., to specify dates and names of parties to any contract made prior to issue of such prospectus, &c. ... ... ... ... 397 39. Company to hold meeting within four months after registration ... 397 Winding-up. 40. Contributory when not qualified to present winding-up petition ... 398 41. Winding-up may be referred to county court ... ... ... ... 398 42. As to transfer of suit from one conntycourt to another... ... ... 399 43. Parties aggrieved may appeal ... ... ... ... ... ... 399 44. Powers to frame rules and orders under sect. 32 of 19 & 20 Vict. u. 108 399 45. Scale of costs to be framed by the judges ... ... ... ... 400 46. Remuneration of registrars and high bailiffs in winding-up of com- panies 400 Saving. 47. Not to exempt companies from provisions of sect. 196 of 25 &26 Vict. c. 89 ... ... ... 400 Gbnerai, Obdee and Rules of the Court of Chanoert to keotoatb the Mode os Pboceedino undeb the Companies Act, 1867. — [Saturday, 2\st day of March, 1868.] Petition for winding up 401 Petition to reduce capital Fees ... ... ..• General directions , Commencement of order Interpretation ... The Schedule (Forma) a* 2 .. 401 .. 406 .. 407 .. 407 .. 407 .. 408 19 Gontents, THE INDUSTRIAL AND PROVIDENT SOCIETIES ACT, 1862. . (25 & 26 Vict. cap. 87.) Explanatory note *^ Arrangement of the Sections, SECT. 15 & 16 Vict. c. 31—17 & 18 Viot. u. 25—19 & 20 Vict. c. 40 414 1. Recited acts repealed *15 2. As to societies registered Tuider recited acts 415 3. Constitution of societies under this act « 415 4. Rules 416 5. Registration of society ... ... ... ... ... ... ••• 416 6. Certificate of registration to vest all property in society now held in trust for society ... ... ... ••• 416 7. Copy of rules to be delivered to persons, on demand 417 8. No society to be registered by same name as that of any existing society 417 9. Member's interests limited to 200i 417 10. Publication of name by society ... ... ... ... ... ... 417 11. Penalties on non-publication of name, &c. ... ... ... ... 417 12. Every society to have a registered office — Penalty on default 418 13. Notice of situation of registered office ... ... ... ... ... 418 14. Signature and effect of rules ... ... ... ... ... ... 418 15. Application of Friendly Societies Acts to this act ... ... ... 419 16. Power to member to nominate persons in whose name bis interest may be transferred at his death ... ... ... ... ... ... 419 17. As to the winding-up of societies... ... ... ... ... ... 419 18. Dissolution of society not to prevent winding-up of its affairs... ... 420 19. Provisions of Joint Stock Companies Acts to apply 421 20. Liability of present and past members of society ... ... ... 421 21. Society may be constituted under Companies Acts ... ... ... 422 22. Members may inspect books 422 23. Sheriff's jurisdiction in Scotland 422 24. Annual returns to be prepared as registrar may direct... ... ... 422 Form of annual return sent in to registrar ... ... ... ... 423 25. Recovery of penalties 426 26. Short title 426 Schedule of matters to be provided tor in the rules 427 THE INDUSTRIAL AND PROVIDENT SOCIETIES ACT, 1867. (30 & 31 Vict. cap. 117.) An Act to amend the Industrial and Provident Societies Acts. 1. Sect. 48 of 18 & 19 Vict. c. 63 and sects. 5, 9, 15, 16 and 25 of 25 & 26 Vict. c. 87 repealed ... .,. ... ... ... ... .. 428 2. Limitation of interest of members ... ... ... ... ]". 428 3. Provisions of the Friendly Societies Acts applied to "industrial and provident societies ... ... ... ... ... . ^29 4. Certificate of registration ... ... ... ... ... '" Ann 6. Power to nominate persons unto whose name the interests of members may be transferred at their death 432 6. Recovery of penalties '"' "" *" ^02 7. Alterations of or additions to rules to be registered '..'. 432 8. Form of certificate ""' ioo 9. Penalties on not sending returns, &o. aqo 20 01 ..._ Idd Contents, SECT. PAGE 10. Form of rulea provided aa moved 433 11. Societies deemed to be established from registration under either act 433 12. Exemption from income, tax ... , ... . , 434 13. List to be returned to commissioners for special purposes containing the names, &c. of persons entitled to profits ,. 434 14. Short title 434 Schedule referred to in the Act. Matters to be provided for by the rules of societies established under the act 435 Forms of certificate to be given under the act ... ... ... ... 435 Form of declaration to accompany alterations of or additions to roles ... 436 COUNTY COURT ORDERS, 1867. Common Law. Proceedings under the Literary and Scientific Institutions, the Friendly Societies, and the Industrial and Provident Societies Acts (17 & 18 Vict. c. 112 ; 18 & 19 Vict. 0. 63 ; 30 & 81 Vict. c. 117) ... 438 Equity. Okdebs under "The Companies Act, 1867," and "The Industrial and Provident Societies Act, 1862 " ... 438 A scam; of costs and charges to be paid to counsel and attorneys under " The Industrial and Provident Societies Act, 1862," and " The Com- panies Act, 1867 " 439 Schedule of fees of court (A.) 439 SCHEDUDB(B.) 439 THE LIQUIDATION ACT, 1868. (31 & 32 Vict. cap. 68.) Abkangement op the Sections. SECT. Preliminary. 1. Short title 440 2. Interpretation of terms 440 S. Extent of act 440 4. Application of act 440 Division of Assets in Specie. 5. Power to prepare and file scheme 441 6. Provision in scheme as to secured creditors 441 7. Notice of scheme 441 8. Application for confirmation 441 9. Confirmation of scheme by court 441 10. Effect of scheme 441 11. Regard by court to wishes of creditors 442 Foreclosure by Notice. 12. Power for creditors to foreclose by notice 442 Procedure. 13. General orders and forms in schedule 443 The Schedule, Forms 443 Contents. Genbbal Obdee of Cohet oj Chanceev.— [29. Kingdom, 319 D. Dale, ex parte, 319 Saly, Newton v, 275 Daly V. Thompson, 75 Dangerfield, Shackleford, Ford, and Com- pany ». 13, 49, 61, 142, 143, 144 Daniei, Blisset v. 27 Daniel's case, re Universal Provident Life Association, 80, 119 Darcy v. The Tamar, Eat Hill, and Col- lington Bailway Company, 15, 17, 37, 48 Davis, Accidental and Marine Insurance Corporation v. 143 Davis's case, re Accidental and Marine Insurance Corporation, 196 Davis V. Bank of England, 75 Davis V. Haycock, 62 Ad. Davis, Pitchford v. 3 Davys, McDowell v. 279 Dawes's case, re China Steamship Com- pany, 219, 220 Dayrell, ex parte, 205 Dean ». Mellard, 268, 417, 431 Dean of Ely, Carter v. 36 De Castro's case, re Court Grange Silver Lead Company, 194 Deering and M'Question v, Hibernian and Joint-Stock Banking Company, 29 Dee, ex parte, 171 Deffell V. White, 34, 49 Delmar's case, re Bamed'a Banking Com- pany, 65, 189 De Medina, Stephens v. 68 Denton v. East Anglian Railway Com- pany, 36 Denton v. Great Northern Bailway Com- pany, 40 Denton v. Macneil, 4, 93 De Pass's case, 76 Deposit and General Life Assurance Company, Biddick v. 279 Derby Canal Company v. Wilmot, 49 Derbyshire, &c., Railway Company, Serrell v. 396 De Bosaz v. Anglo-Italian Bank, 250, 261 Ad. De Vitre, Betts v. 39, 47 Dickinson v. Valpy, 126' Dickson, Clarke v. 40 Dickson v. Neath and Brecon Bailway Company, 45 Diggle V. London and Blackwall Bail- way Company, 396 Direct Exeter, Plymouth, &c., Railway Company, re, Woolmer's case, 173, 176 Direct London and Exeter Railway Com- pany, re, 172 Disderi and Company, re, 172 District Savings Bank Company, re, ex parte Coe, 2 Dixon's case, re Agriculturist Cattle Insurance Company, 27 Ad. Dixon's case, re Peninsular, West Indian and Southern Bank, 14 Dobson's case, re Leeds Banking Com- pany, 85, 151 Dodds V. Hills, 54 Donaldson v. Gillott, 54 Douglas, Touthill v. 431 Dover and Deal, &c., Company, re, ex parte CUfton, 176 Dover, Hastings, &c., Bailway Company, re, Oarew's case, 176 Dowling, The Brighton Arcade Com- pany V. 200, 222, 224 Downes v. Ship, 5, 8, 94, 100 Drew's case, re London, Bombay, and Mediterranean Bank, 18, 249 Droitwitch Patent Salt Company v. Cur- zon, 271 Drummond's case, re China Steamship and Labuan Coal Company, 79 Ad. Dublin and Wicklow Railway Company V. Black, 56 Duckworth, re, 150 Duckworth, re, ex parte Cooper, 160, 183, ■ 200 Duff, Powell V. 63 Dulwich College, Maxwell v. 36 Dulwich Hospital, Taylor v. 36 Duucuft V. Albricht, 69 Duranty's case, 94 Dyas, Stevens's Hospital v. 36, 138 E. Eagle Company, ex parte, 15, 36 Bales V. Cumberland Black Lead Mining Company, 290, 291 East Anglian Railway Company, Den- ton 17. 36 o 35 Table of Oases. Bast Botallaok Consolidated Mining Com- pany, re, 158, 275 East Cambrian Gold Mining Company, re, 320 East Gloucestershire Railway Company V. Bartholomew, 101, 102, 116 East India Company, Gibson v. 35 East India Company, Murray v. Via East Kent Shipping Company, re, 227 East Kongsberg Company, re, Bigg's case, 25 East of England Banking Company, re, 223, 241, 326 East of England Banking Company, re, ex parte Bugg, 104, 189 East of England Bank, re, Peltom's Exe- cutors' case, 255 East of England Bank, re Ball, 210 East Pant Du United Lead Mining Com- pany ?\ Merry weather, 132, 289 East Wheal Martha Mining Company, re, 74, 77, 112 East Wheal Eose, &c.. Mining Company, Langham v. 95 Eastern Counties Railway Company, Flaviell r. 43 Eastern Counties, &o.. Railway Company, re. Underwood's case, 176, 201, 246 Ebbw Vale Company, ex parte, re Con- " tract Corporation, 36 Ad. Ebury, Lord, Scott v. 3 Economic Omnibus Company, re, exparte Pope, 280 Edwards v. Martin, 54 Edwards, Robins v. 73, 219 Electric Telegraph Company of Ireland, re, 171 Electric Telegraph Company of Ireland, re, exparte Budd, 76 Electric Telegraph Company of Ireland, re, Reid's case, 189 Elkington's case, re Richmond Hill Hotel Company, 86, 88 Elliott's case, re Freen, 79 Ellis V. Colman, 37 Ellis V. Schmseck, 275 Ely, Dean of. Carter v. 36 Emmerson's case, re London, Hamburg, and Continental Exchange Banlc, 70, 162, 164, 195, 236 Empire Assurance Corporation, re, 161, 208 Empire Assurance Corporation, re, ear pan^te Bagshaw, 17 English and Irish Bank r. Gray, 16, 19 English and Irish Church and University Assurance Society, re, ex parte Hunt, 243 . i ", English Joint Stock Bank, re, Ifri, 208 English Joint Stock Bank, Barwiok r 39, 46 English Joint Stock Bank, re, Bradlaugh's case, 24 '^ «■ English Joint Stock Bank, re, ex parte Finney, 173, 241 English Joint Stock Bank, re, Harding's case, 173,241 30 English Joint Stock Bank, re, Marzetti's case, 112, 195 English Joint Stock Bank, re, Telland's cast', 242 Enthoven v. Hoyle, 392 Era Assurance Company, re, Williams's case, 244 Ernest, Balfonr v. 9, 15, 36 Ernest, Caldwell v. 181 Ernest v. Croysdill, 44 Ernest v. Nicholls, 15, 36 Estates Investment Company, ?*e, Ash- ley's case, 99 Ad. Estates Investment Company, re, Pawle's case, 99 Ad. Estates Investment Company, Eoss r. 47, 91 Estates Investment Company, re, exparte Turnley and Oliver, 214 Ad. Estates Investment Company, Wells v. 174 Eurnpean and American Finance Cor- poi-ation, ex parte, re Strand Music Hall Company, 20 European Banking Oompanv, re, exparte Baylis, 156, 160, 165, 167,'l68 European Central Railway Company, re, Gustard's case, 12, 77 Ad. European Central Railway Company, Heymann 77. 91 European Central Railway Company, re, Holden's case, 75, 187 Ad. European Central Railway Company, re. Parsons' case, 55, 188 Ad. European Life Assurance Societv, 7*e, 153, 156 Ad. Evans's case, re London, Hamburg, and Continental Exchange Bank, 10, 78 Evans's Charity Trustees, Bank of Ire- land r. 75 Evans r. Wood, 70, 71, 73, 220 Eve's case, re Imperial Land Credit Company. 78 Exhall Coal Mining Company, re, Bleck- ley's case, 2*7 Exball Coal Mining Company, re, Mile.s's case, 83 Exhall Coal Mining Company, Wyley i\ 174 F. Factage Parisieu Company, re, 155, 166, 177 Family Endowment Society, it, 274 Ad. Fareham Blue Briok and Tile Company, Totterdell r. 7, 17, 29, 37, 48, 138 Faris, ex jmrte, re British Sugar Refining Company, 288 Farmer r. Giles, 430 Fearnside's case, re Leeds Banking Com- pany, 85, 151 Peatherstonhaugh i\ Lee Moor Poi-celniu Clay Company, 9 Felling and Rimiugton's case, re Financial Corporation, 12, 62, 66, 191, 287, 389 Table of Gases. Felgate's case, re United Kingdom Ship Owning Company, 30, 78, 191 Feltom's Executoi-s' case, re East of England Bank, 255 Foun's case, re Pennant and Oraigwen Company, 275 Ferguson, Washoe Mining Company v. 140, 141 Ferguson v. Wilson, 38, 40, 42 Fermoy (Ijord), Land Credit Company of Ireland v. 18, 41 Ad. Fernie, Hallows v. 6, 39, 93 Fernie, Kees v. 58 Field V. Lelean, 56 Fielding, Booth v. 59 Financial Corporation, Clinch v. 18, 47, 48, 247, 248 Financial Corporation, re. Felling and Himington's case, 12, 52, 66, 191, 287, 389 Financial Corporation v. Lawrence, 149 Ad. Financial Corporation, Claim of, re Natal Investment Company, 21 Financial Insurance Company, re, 208 Finlay v. Bristol Banking Company, 35 Finney, ex parte, re English Joint Stock Bank, 173, 241 Fire Anuihilator Company, re, 171, 232, 280 Fisher, Shaw v. 69, 105 Fisher, expaii^e, re Wexford and Valencia Railway Company, 166 Fitzgerald, Agriculturists' Cattle in- surance Company v. 145, 267 Flanagan v. Great Western Railway Company, 41 Flather, Pott v. 68 Flaviell, v. Eastern Counties Railway Company, 43 Fleming, Australian Company v. 140 Fleming v. Self, 430 Fletcher v. Marshall, 58, 59 Fletcher, ex parte, re Saloon Steam Packet Company, 80, 81 Flight, Curling v. 68, 105 Forbes v. Marshall, 23, 126 Forwood's claim, re, Barned's Banking Company, 243 Ad. Fountain, ex parte, re Sheffield and Hallamshire Ancient Order of Fores- ters' Co-operative and Industrial Society, 268, 270, 271, 431 Fowler v. Churchill, 52 Fox's case, re Canadian Native Oil Com- pany, 24, 113, 194, 196 Frankland, Eeg. ■». 267 Franklyn v. Ijamond, 59 Freehold Land -and Brickmaking Com- pany, Kent V. 92, 99, 162, 197 Freehold Land and Brickmaking Com- pany V. Spargo, 141 Fneen, re, Elliott's case, 79 Fresh Provision Preserving Company, re, Worcester's case, 17, 38, 138 Pyfes case, re Joint-Stock Discount Company, 113, 195; 87 Ad. U. Gale v. Lewis, 54 Galloway's case, 125 Garnett and Moseley GoH Mining Co m- pany, Lowndes i). 41, 139 Garnett and Moseley Gold Mining Com- pany V. Sutton 200 Garatin, ex parte, re Home Counties, &c.j Company, 246 Gaskell !'. Chambers, 41 General Bauk for the Promotion of Agriculture, *c., re, 403 General Cemetery Company, Eeg. v. 55, 75 General Estates Company, re, 127 General Estates Company, re, ex parte Wright and Gamble, 326 Ad. General Estates Company, re, ex parte City Bank, 126, 127 General Estates Company, re, Hastie's case, 29, 31, 144^ 149, 151 ; General Exchange Bank, re, 15, 159, 160, 171, 182 General Exchange Bank, re, Preston's case, 16, 36 General Floating Dock Company, re, 195 General International Agency Company, re, 164^ 166, 167, 328 General luternational Agency Company, re. Chapman's case, 83 General Provident Assurance Company;, re, 178 -General Provident Assurance Company, Bridger's case, 87 Ad. General Provident Assurance Company, Greens. 93 General Rolling Stock Company, re, 153, 170, 218 General Rolling Stock Company, re, ex parte Alliance Bank, 127 Ad. General Rolling Stock Company, re. Chapman's case, 173, 241 Gerhard v. Bates, 40 German Mining Company, re, -S tone's case, 207 Gibbons, ex parte, re Clerk, 149 Gibbs, Wells v. 53 Gibson v. East India Company, 35 Giles, Farmer v. 430 Giles V. Hutt, 28 Gillespie, Shepherd v. 55, 73 Gillett, Donaldson v. 54 Glamorgan Iron and Coal Company, Marshall v. 28, 37, 47 Glamorganshire Iron and Coal Company V. Irvine, 89, 144 Glover, Morrison v. 430 Goldner, Hannuc v. 67 ■ Goldsmid, Ramsgate Victoria Hotel Com- pany V. 82 Goude V. Cork and Bandon Railway Com- pany, 31, 142 Gordon v. Sea, Fire, and Life Assurance Company, 23, 126 Gore and Durant's case, re Patent Car- riage Company, 88 37 Table of Cases. Uower's case, re London and Provincial Starch Oompany, 25, 187 Grady's case, re British Provident Life, &c.. Assurance Society, 64 Graham v. The Van Dieman's Land Com- pany, 23 Grand Collier Dock Company, Mangles «. 391 Grand Collier Dock Oompany, Preston v. 23, 27, 391 Grand Trunk Eailway Oompany v. Brodie, 181, 279 Grant, Seaton v. 47, 220 Gray, English and Irish Bank v. 16, 19 Gray v. Lewis, 41, 60 Ad. Gray v. Kaper, 278, 420 Great Cwmsymtoy Silver Lead Oompany, re, 319 Great Mnnster Eailway Company, re, ex parte Inderwick, 167 Great Northern Copper Mining Com- pany of Australia, 166, 171 Great Northern and Midland Coal Com- pany, re, ex parte Carrie, 80, 119 Great Northern Bailway Company, Den- ton V, 40 Great Northern Bailway Oompany v. Kennedy, 28 Great Northern Bailway Company, Lind- sey (Earl of) v. 36 Greatorex v. L ancashire Cotton Spinning Company, 239 Great Ship Oompany, re, ex parte Parry, 163, 252, 277 Great Western Bailway Company, Flan- agan V. 41 Great Western Eailway Company, Kings- ford V. 43 Great Western Eailway Company, Banger V, 397 Great Western Eailway Oompany, Walker V. 397 Green, ex parte, 214 Green v. General Provident Assurance Company, 93 Green v. London General Omnibus Com- pany, 46 Greenwood's case, 36 Gregory, Bordenave v. 67 Gregory v. Patchett, 42, 132 Grimes v. Harrison, 44 Grisewood's case, re Mexican and South American Mining Oompany, 274 Grissoll V. Bristowe, 59, 61, 63, 71 Grissell's case, re Overend, Guruey, and Company, 199, 200 Grizewood v. Blane, 68 Groux's Improved Soap Oompany, Cooper Guest, ex parte, re British Alkali Oom- pany, 167 Gunn, Hunt v. 68 Gunn V. London and Lancashire Fire Insurance Company, 16, 35 Guuu's case, re Universal Banking Cor- poration, 80 38 Gumey, Overend, Gurney, and Company V. 41 Ad. Gustard's case, re European Central Bailway Company, 12, 77 Ad. Habershon'a case, re Masons' Hall Tavern Company, 38, 145, 192, 247 Hafod Hotel Company, re, 247 Haf od Lead Mining Oompany, re. Slater's case, 76 Hagell V. Carrie, 41, 175 Halkett v. Merchants, Traders, &c., Oom- pany, 120 Hall, re East of England Bank, 210 Hallett, North Britiflh Insurance Com- pany V. 54 Hallowes v. Femie, 6, 39, 93 Hamilton, Earned v. 68 Hann, Clayton, and Company's case, re Boyal Hotel Company of Great Yar- mouth, 87 Hannuc v. Goldner, 67 Harding's case, re English Joint-Stock Bank, 173, 241 Harding, Williams ». 149 Hare v. Waring, 68, 105 Hare's case, re London and County General Agency Association, ^ Ad. Harmer, Steele v. 126 HaiTis V. Amery, 2 Harris v. North DevonBail way Oompany, Harrison, ex parte, 54 Harrison, Grimes v. 44 Harrison, Taft v. 76 Hart's case, re Alexandra Park Oompanv, 65, 187, 189 Hart, Clarke r. 23, 27 Hartlepool Bailway Company, Wilson v. 396 Harvey v. Beckwith, 274 Harvey r. dough, 275, 278 Harvey v. Oollett, 5 Harvey, Strong v. 274 Hasties case, re General Estates Com- pany, 29, 31, 144 149, 151 HatfieldPatent Cask Company, re, 202, 326 Hatton, ej^ parte, 76 ■Hawkins v. M;iltby, 72 ; 72 Ad. Hawkins, Meti-opolitau Saloon Omnibus Company r. 44 Hawkins, ex parte, re Metropolitan Saloon Omnibus Oompany, 164, 166 Hawkins, ej; parte, re United English and Scottish Assurance Oompany, 198, 253 Hawksford, Wolverhampton New Water- works Company t>. 116 Haycock, Davis v. 62 Ad. Hayes r. Stirling, 6 Haytor Qi-anite Oompany, i-e, 241, 24» Head's case and White's case, re Contract Corporation, 77, 113, 195 Heatou Steel and Iron Company, re Simpson's case, 108 Ad. ' Table of Gases. Hebb's caset re National Savings Bank Association, 81 Helbert's case, re Bamed's Banking Com- pany, 118, 336 Henderson v. Australian Boyal MaU Steam Navigation Company, 36 Henderson v. Bamber, 420 Henderson v. Lacon, S8, 39, 92, 96, 175 Henderson v. Peruvian Bailvray Com- pany, 174 Henry, London, Hamburg, and Con- tinental Exchange Bank v. 44 Ad. Hercules Insurance Company, re, Lowe's case, 77 Ad. Hereford Journal Company, re, 241 Herefordshire Banking Co., re, 202, 326 Herefordshire Banking Company, re, Bul- mer's case, 151 Heritage's case, 7'e Merchants' Company, 193, 195 Ad. Heseltine v. Siggers, 56 Hewett, Martin's Patent Anchor Com- pany V. 29, 31, 144, 149 Heyford Company, re. Pell's case, 79 Ad. Hejrman v. European Central Bailway Company, 91 Hibblewhite v. M'Morine, 68 Hibernian and Joint-Stock Banking Com- pany, Deering and M'Question v. 29 Hickman v. Cambrian and Universal In- surance Company, 120 Hickman, Lawton v. 54, 67, 69 Higgs, ex parte, re Bank of Hindustan, China, and Japan, 79, 109, 249 Higgs V. Northern Assam Tea Company, 21 Ad. Highgate Archway Company, Slark v. 23, 126 Hill V. Manchester and Salford Water- works Company, 15 Hill Pottery Company, re, 163, 182, 252 Hill's case, re Joint-Stock Discount Com- pany, 113, 195 Hills, Dodds v. 64 Himalaya Tea Company, Mair v. 18 Hirtzeli, ex parte, 168 HodgMnson v. Kelly, 73, 231 Holden's case, re European Central Eail- way Company, 75, 187 Ad. Holland, Shaw v. 69 HoUingsworth's case, 198 HoUoway, Sogers v. 53 HoUyford Copper Mining Company, re, 212 Ad. Holmes and others, exparte, re Financial Corporation, 12, 66, 191, 287, 389 Home and Colonial Assurance Company, Colonial Life Assurance Company v. 51 Home Counties, &c.. Company, re, exparte Garstin, 246 Homershara v. Wolverhampton Water- works Company, 396 Hop and Malt Exchange Company, re, 166, 167 Hop and Malt Exchange and Warehouse Company, re, exparte Briggs, 97, 98 iHopcroft V. Parker, 3 jHope Mutual Life Assurance Company, 1 , re, 165 Hope Mutual Life Insurance Company, Bowes V. 156, 168, 261, 275 Hopkins v. Worcester and Birmingham Canal Proprietors, 22 Hopkiason's case, 16 Hornby v. Close, 416 Hornby's case, re Ottoman Company, 77, 219, 220 Horsey's case, re London and Colonial Company, 9, 242 Howard's case, re Leeds Banking Com- pany, 17, 37, 84 Howard and Dolman's case, re Phoenix Life Assurance Company, 29 Howbeaoh Coal Company, Teague v. 33, 142, 143 Hoyle, Enthoven v. 392 Hubbersty v. The Manchester, Sheffield, and Lincolnshire Railway Company, 74 Hue, ex parte, re Eoyal British Bank, 194 Hughes's case, re Nister Dale Iron Com- pany, 246 Hughes, Taylor v. 65 Huletfs case, 36 Hull, Flax and Cotton Company v. Wel- lesly, 268 Hull Forge Company, re, ex parte Mit- chell, 214 Hull Glass Company, Smith v. 15, 37 Humber Ironworks Company, re, 167; 244: Ad. Humber Ironworks Company, re, ex parte Warrant Finance Company, 23 ; 241 Ad. Humber Ironworks, &o.. Company, re, ex' parte Warrant Finance Company (No. 2), 213, 241 Ad. Humble v. Langston, 68 Humble v. Mitchell, 56 Humby's case, re Wrysgan Company, 194 Hunt V. Qunn, 68 Hunt, ex parte, re English and Irish Church and University Assurance Society, 243 Hunt's case, re Brighton Brewery Com- pany, 255 Hutchinson, Paine v. 70, 220 Hutt, Giles V. 28 Hutton V. Scarborough Cliff Hotel Com- pany, 10, 12, 23, 130, 131 Hutton, Terrel ». 15, 35 Hyam, ex parte, re Mexican and South American Company, 76 Imperial Bank of China, India, and Japan, re, 169, 232, 248 Imperial Bank of China, India, and Japan V. Bank of Hindustan, China, and Japan, 18, 132, 141, 248 Imperial Gas Light Company, Church v. 36 39 Table of Gases. Imperial Gas Light utid Coke Company, Clarke v. 15 Imperial Land Credit Company, re, Eve'a case, 78 Imperial Mercantile Credit Association, re, 120, 208, 210, 218 Imperial Mercantile Credit Association, re. Chapman and Barker's case, 105, 189, 194 Imperial Mercantile Credit Association, re, exparte Clement, 208 Imperial Mercantile Credit Association, re, ex parte Coleman and others, 166, 167 Imperial Mercantile Credit Association, re, Curtia'e case, 55, 1 88 Imperial Mercantile Credit Association, re, exparte lonides 241 Imperial Mercantile Credit Association, re, Marino's case, 74, 77, 111, 195 Imperial Mercantile Credit Association v. Whitham, 44 Imperial Mercantile Credit Company, re, 210,218 Imperial Silver Quarries Company, re, 18, 156, 169 Imperial Steam and Household Coal Company, re, 252 Inohbald v. Western Neilgherry Tea, &o., Company, 45 Independent Assurance Company, re, Bird's case, 268 Inderwick, ex parte, re Great Munster Railway Company, 167 Inman v. Clare, 127 Inns of Court Hotel Company, re, 20. 21, 217, 223, 264 Inns of Court Hotel Company, Reg. v. 74 Inns of Court Hotel Company, Ru- dolph P. 101, 143 International Contract Langer'e case, 186 International Contract Levita's case, 85, 104, „_. International Contract Corporation's case, re Peruvian Railways Company, 34 International Contract Company, re, ex parte Spartali and Tabor, 172 International Life Assurance Society, re. 169 •" ^ Inventors' Association, re, 121, 168, 232, lonides, exparte, re Imperial Mercantile Credit Association, 241 Ipswich, &c.. Railway Company, re, ejc parte Barnett, 173 Irish Peat Company r. Phillips, 116 . Iron Ship Building Company, i-e, 115 Iron Ship Coating Company r. Blunt, 18, Irviuo, Glamorganshire Iron and Coal Company r. 89, 144 Isle of Wight and Southampton Steam- boat Company, Rawlins u. 14, 1 tO Islo of Wi^l It Ferry Company, ir, 170, 276 Ives, re, 55 40 Company, re. Company, re, 189 J. Jackson v. Cooker, 274 Jackson v. North Wales Railway Com- pany, 396 Jackson's case, re Russian (Vyksounsky) Ironworks Company, 95 Jacob, Sheares v. 34, 48, 49 James, ex parte, re Narborongh and Watlington Railway Company, 166 James, ex parie, re South Blackpool Hotel Company, 21 Ad. Jersey Imperial Hotel Company, McDougall V. 33 Jessop's case, 76 Johnson, Brodie v. 430 Johnson, Midland Great Western Bail- way Company of Ireland v. 396 Johnson, Smith v. 126 Joint-Stock Coal Company, i-e, 166, 177; 163, 155 Ad. Joint-Stock Companies Winding-up Act, re, 318 Joint-Stock Discount Company, re, 181, 239 Joint-Stock Discount Companys. Brown, 9, 34, 41, 44, 181 ; 18, 41 Ad. Joint Stock Discount Company, re, Pyfe's case, 109, 187, 195 Ad. Joint-Stock Discount Company, re. Hill's case, 113, 195 Joint-Stock Discount Company, j'e, Loder's case, 127 Joint-Stock Discount Company, re, Mann's- case, 55, 188 Joint-Stock Discount Company, i-e, Mar- zetti'a case, 112, 195 Joint-Stock Discount Company, re. Nation's case, 77, 113, 195 Joint-Stock Discount Company, re, Read's case (Parrish's shares), 77, 112, 195 Joint- Stock Discount Company, re. Read's case fSmallbone's shares), 77, 112, 195 Joint-Stock Discount Company, i-e. Shepherd's case, 73, 76, 112, 113, 195 Joint-Stock Discount Company, re, Shipmau's case, 77, 113, 195 Joint-Stock Discount Company, re, Sichell's case, 114, 193, 196 Joint-Stock Discount Company, iv. War- rant Finance Company's case, 241 Ad. Jones r. Littledale, 56 Jopp's C4ise, re Peninsular, West Indian, and Southern Bank, 201, 213 Joseph Maokrill Smith, ex parte, re Bank of Hindustan, China, and Japan, 253 Josephs r. Pebrer, 59 K. Keating, Wilson v. 69 Kelk and Pahlen's case, re Cobre Copper Mining Company, 23 .id. Kellock's case, re Barned'a Banking Company, 243 Table of Gases. Kelly, Hodgkinson v. 73, 231 Kelner v. Baxter, 3 Kelsall V. Tyler, 430 Kennard, Cheale v. 64 Kennedy v. Panama Eoyal Mail Com- pany, 89 Kent Benefit Building Society, re, 125 Kent V. Freehold Land and Brickmaking Company, 92, 99, 162, 197 Kentish Koyal Hotel Company, re, 320 Keynsham -Blue Lias Lime Company v. Baker, 121 Kevnsham Company, re, 'ill, 227 Kil'ner, Tempest v. 56, 69, 274 Kincaid's case, re Eussian (Vyksounsky) Iron Works Company, 97 King V. Marshall, 22, 222 King, er parte, re Biohmond-hUl Hotel Company, 150 Kingdom, Cutbill v. 430 KingstownEoyal Marine Hotel Company, re, 173 Kintrea, ex parte, re Bank of Hindustan, China, and Japan, 109, 193 Ad. Kirby, re, ex parte Leeds Banking Com- pany, 201 Kirby, Turquand v. 151, 181, 203 Kirk V. Bromley Union, 396, 397 Kisch, Central Railway Company of Venezuela v. 5, 8, 31, 47, 90 Knight V. Barber, 274 Knight's case. North Kallenbeagle Mining Company, 26, 118, 138 Knowles, Lawrence v. 68 Lacharme v. Quartz Eock Mariposa Gold Mining Company, 45 Lacon, Henderson v. 38, 39, 92, 96, 175 Laird V.Birkenhead Bail way Company,396 Lama Company, re. Miller's case, 226, 245 Lama Italian Coal Company, re, 214 Lamond, Pranklyn v. 59 Lamprell v. Billericay Union, 397 Lancashire Brick and Tile Company, re, 159, 171 Lancashire Cotton Spinning Company, B. Greatorex, 239 Lancaster Canal Company, ex parte^ 53 Land Credit Company of Ireland v. Lord • Fermoy, 18, 41 Ad. Land Credit Company of Ireland, re, ex parte Munster, 86 Land Credit Company of Ireland, re, ex parte Overend, Gurney, and Company, 126 Ad. Land Credit Society of Ireland, re, 207 Landed Estates Company, Acomb v. 48 Lane, ex parte, re British Provident Lire and Fire Assurance Society, 138 Langer's case, re International Contract Company, 186 Langham v. East Wheal Bose, iSc, Mining Company, 95 Langston, Humble v. 68 Lanyon v. Smith, 275, 278 Latham v. Barber, 56 Lawes, ex parte, 66 Lawrence, ex parte, 53 Lawrence's case, re Cachar Company, 8, 14, 33, 97 Lawrence, Financial Corporation v. 149 Ad. Lawrence v. Knowles, 68 Lawson v. Bank of London, 46 Lawton, ex parte, 171 Lawton v. Hickman, 54, 67, 69 Lee and Moor's case, ?'e Shields Marina Insurance Association, 274, 277 Lee Moor Porcelain Clay Company v. Featherstonhaugb, 9 Lee, Toll v. 275 Leeds Banking Company, re, 183, 202, 330 Leeds Banking Company, re, Addinell'a case, S3 Leeds Banking Company, re, Barrett's case, 84 Leeds Banking Company, re, ex parte Clarke, 246 Leeds Banking Company, re, Feamside's case and Dobson's case, 85, 151 Leeds Banking Company, re, Howard's case, 17, 37, 84 Leeds Banking Company, ex parte, re Kirby, 201 Leeds Banking Company, re, Mallorie's case, 85, 151 Leeds Banking Company, re, Matthew- man's case, 152 Leifchild's case, re British and Foreign Cork Company, 10, 35 Lelean, Field v. 56 Leominster Canal Company v. Shrews- bury and Hereford Railway Company, 396 Levi and Company's case, re New Zea- land Banking Corporation, 127 Ad. Levick and others, ex parte, re Bank of Hindustan, China, and Japan, 222, 224, 253 Levita's case, re International Contract Company, 85, 104, 189 Lewis, Anglo-Californian Gold Mining Company v. 223 Lewis, Gale v. 54 Lewie, Gray ». 41, 60 Ad. Libri's case, 76 Licensed Victuallers and General Plate Glass Insurance Company, re, exparte Wesson, 226 Life Association of England, re, 222, 227 Life Association of England, re, expaa-te Blake, 34, 47 Life Association of England, re, Thomp- son's case, 86 Lincoln Gas Company, Beverley v. 36 Lindsey, Earl of, v. Great Northern Rail- way Company, 36 Lindus v. Melrose, 128 Linton v. Blakeney Joint Co-operative Industrial Society, 268, 417, 431 41 Table of Gases. Lintott, ex parte, re Overend, Gurney, and Company, 148, 224 Lister, Stubbs v. 27 Littledale, exparte, 63 Littledale, Jones v. 56 Littlehampton, Havre, and Honfleur Steamship Company, re, 160, 170, 274 Littlehampton, Havre, and Honfleur Steamship Company, Ormerod's case, 193, 274 Liverpool Borough Bank v. Mellor, 145 Liverpool Railway Company, Preston v. 36 Llanharry Hematite Iron Company, re, ex jm'te Roney, 83 Llanharry Hematite Iron Company, re, ex parte Stock, 83, 138 Llanharry Hematite Iron Company, re, Tothill's case, 85 Lloyd, Erittain v. 57 Lloyd, Smith v. 430 Lloyd, Wilkinson v, 68 Loder's case, re Joint Stock Discount Company, 127 Londesborough, Beardshaw v. 182 London Armoury Company, re, 159 London Bank of Scotland, re, 224, 231 London Bank of Scotland, re, ex parte Collum, 226 London, Birmingham, and South Stafford- shire Banking Company, re, 28, 74, 101 London and Bii'mingham Flint Glass and Alkali Company,re, exparte Wright,157 London and Birmingham Railway Com- pany V. Winter, 36, 396 London and Blackwall Railway Company, Diggle V. 396 London, Bombay, and Mediterranean Bank, re, 178 London, Bombay, and Mediterranean Bank, re, Drew's case, 18, 249 London, Bombay, and Ilediterranean Bank, McBwen v. 174 London, Brighton, and South Coast Bail- way Company, re, 209 London and Colonial Company, re, ex parte Clarke, 145, 200 Ad. London and Colonial Company, re, Hor- sey's case, 9, 242 London Conveyance Company, re, ex pwte Wise, 167 London Cotton Company, re, 163, 173, 174,252 London and County Bank, ex parte, re Continental Bank Corporation, 240 London and County Coal Company, re, 164,160,171 London and County Coal Company, re Bennett's case, 10, 79 London and County Qeneral Agency Association, re, Hare's case, 99 ^o. London Dock Company v. Sinnott, 15, 36 London and Dublin, &o.. Railway Com- pany, re, 319 London and Exchange Bank, re, 109, 247 Loudon Flour Company, re, 1S6, 160, 231 12 London General Omnibus Company, Green v. 46 London, Hamburg, and Continental Ex- change Bank, re, Emmerson's case, 70, 162, 164, 195, 236 London, Hamburg, and Continental Ex- change Bank, Evans's case, 10, 78 London, Hamburg, and Continental Ex- change Bank v. Henry, 44 Ad. London, Hamburg, and Continental Ex- change Bank, re, exparte Preston, 192 London, Hamburg, and Continental Ex- change Bank, re. Ward and Henry's case, 77, 108, HI, 114, 115, 195 London, Hamburg, and Continental Ex- change Bank, re, ex parte Watkins, 77, 196 London India Rnbber Company, re, 205, 217, 222, 261, 264, 275 London Insurance Company v. London and Westminster Insurance Corpora- tion, 61 London and Lancashire Fire Insurance Company, Gnnn v. 16, 35 London and Limerick Steam Ship Com- pany, Towne ». 136 London and Manchester, &&, Railway Company, re, 172 London and Manchester, &c., Railway Company, re, exparte Barber, 176 London and Manchester, &c. Railway Company, re, exparte Pocock, 169 London Marine Insurance Association, re, 274, 277 ; 274, 277 Ad. London and Mediterranean Bank, re, 168, 169, 230, 232 London and Mediterranean Bank, re, ex parte Birmingham Banking Company, 224 London and Mediterranean Bank, 7^ Con- tinental Bank Corporation, 176 London and Mediterranean Bank, re, Wright's case, 24 London and Mercantile Discount Com- pany, re, 166, 218, 227, 231, 233 London Monetary Advance andLif e Assu- rance Company v. Smith, 1, 145, 281 London, Newbury, and Bath Direct Rail- way Company, re, expaHe Cookson,165 London and Northern Insurance Com- pany, re, 178 London and Northern Insurance Cor- poration, Stace and Worth's case, 17 Ad. London and North Western Railway Company, Brown ». 121 Loudon and North Western Railway Company, Lowe v. 396 London and North Western Railway Company, Minor v. 429 London and North Western Railway Company, Pauling v. 396 London and North-Western Railway Company, Watford and Rickmans- worth Railway Company v. 316 Ad. London Permanent Benefit Building Society, re, 167 Table of Oases. London and Provincial Provident Society V. Ashton, 145 London and Provincial Starch Company, re, ex parte Adams, 170 London and Provincial Starch Company, re, Grower's case, 25, 187 London Quays and Warehouses Com- pany, re, 223, 229, 234, 235, 321 London and South Essex Railway Com- pany, re, exparte Murrell, 167 London and Westminster Co-operative Store Company, 399 London and Westminster Insurance Com- pany, re, exparte Phillips, 274 London and Westminster Insurance Cor- poration, London Insurance Company ». 51 London and Westminster Wine Com- pany, re, 318, 319; 319 Ad. London Wharfing and Warehousing Company, re, 157, 165 Lonsdide Vale Ironstone Company, re, 171 Lord, re, 251 Lord Belhaven's case, 27 Los, ex parte, re Baiik of Hindustan, China, and Japan, 109, 249 Lotinga, Christopherson v. 43 Lowe V. London and North Western Bailway Company, 396 Lowe, Torrington v. 62 Lowe's case, re Hercules Insurance Company, 77 Ad. Lowndes, exparte, 205 Lowndes v. Garnett and Moseley Gold Mining Company, 41, 139 Lowton, Mayor of Colchester v. 48 Luard's case, Northumberland and Dur- ham District Banking Company, re, 152 Lucy's case, re Midland Union, &c., Bail- way Company, 246 Lumsden's case, re Blakely Ordnance Company, 189 Lundy Granite Company, re, 172 Lynch, Burnett v. 237 Lyster's case, Tavistock Iron Works Company, 17, 24, 37; 109, 138, 142, 190 M. M'Oreight v. Stevens, 144 M'Dougall V. The Jersey Imperial Hotel Company, re, 33 McDowell V. Davys, 279 McEwen v. London, Bombay, and Medi- terranean Bank, 174 M'Ewen v. Wood, 69 Mackenzie v. Sligo and Shannon Bailway Company, 174, 490 Mackenzie, ex parte, re China Steamship Company, 242 ; 21, 149 Ad. Maclae v. Sutherland, 126 Macneil, Denton v. 4, 93 M'Morme, Hibblewhite v. 68 Maddiok v. Marshall, 4 Madrid Bank v. Bayley, 162, 182, 224 Madrid Bank v. PeUy, 18, 41, 181 Ad. Madrid Bank, re, Wilkinson's case, 98 Madrid Bank, re, exparte Williams, 16, 242 Madrid and Valencia Bailway Company, re, exparte Chad wick, 238, 323 Magdalena Steam Navigation Company, 20 MaUlardet, Weeks v. 63 Mair v. Himalaya Tea Company, 18 Mallorie's case, re Leeds BanMng Com- pany, 85, 151 Maltby, Hawkins v. 72 Manchester Queensland Cotton Company, re, 169, 230 Manchester and Salford Waterworks Company, Hill v. \5 Manchester, Sheffield, and Lincolnshire Bailway Company, Hubbersty v. 74 Manchester Waterworks Company, Bronghton v. 35, 126 Mangles v. Grand Collier Dock Company, 391 Mangles v. Preston Collier Company, 64 Mann's case, re Joint Stock Discount Company, 65, 188 Marine Investment Company, re, 235 Marine Mansions Company, re, 20 Marino's case, re Imperial Mercantile Credit Association, 74, 77, 111, 195 Marlborough Club Oomoany, re, 119, 148, 165, 167, 192, 199, 318' Marlborough Club Company, re, ex parte Percival, 187 Marseilles Extension Bailway and Land Company, re, 164, 229, 235 Marshall v. Corporation of Queens- borough, 36 Marshall, Fletcher v. 58, 69 Marshall, Forbes v. 23, 126 Marshall v. Glamorgan Iron and Coal Company, 28, 37, 47 Marshall, King v. 22, 222 Marshall, Maddick v. 4 Marshall, Turquand v. 41, 44, 181, 246, 278 ; 41 Ad. Martin, Edwards v. 64 Martin's case, re Bank of Hindustan, China, and Japan, 102, 109 Martin's Patent Anohof Company v. Hewett, 29, 31, 144, 149 Martin's Patent Anchor Company v. Morton, 29, 31, 144, 149 Martyr, Penrose v. 122, 129 Maryleboue Joint-Stock Bank, re, 205 Marzetti's case, re English Joint-Stock Bank, 112, 195 Masons' Hall Tavern Company, re, Habershon's case, 38, 145, 192, 264 Masons' Hall Tavern Company, re, Nokes's case, 79, 110 Matthewman's case, re Leeds Banking Company, 152 Maude, Bpiller ». 421 Maund v. Monmouth Canal Company, 46 MaxoudofF, ex parte, re Oriental Com- mercial Bank, 243 Maxted v. Paine, 62 43 Table of Oases. Maxwell v. Dulwioh College, 36 Mayfaew's case, 275 Mayor of Colchester v. Lowton, 48 Mayor of Ludlow v. Charlton, 35, 126 Mayor, &(i, of Manchester, Stockport District waterworks Company, v. 47 Mayor of Poole, Arnold v. 43 Mayor of Sunderland, Cowley v. 46 Mellard, Dean v. 268, 417, 431 Mellor, Liverpool Borough Bank v. 145 Melrose, Lindus v. 128 Mercantile Credit Association, re, 208 Mercantile and Exchange Bank, ex parte, re Blakely Ordnance Company, 9, 23, 34, 126 Mercantile Trading Company, re, String- er's case, 34 Ad. Mercati, Accidental and Marine Insu- rance Company v. 141 Mercati's case, re Accidental and Marine Insurance Corporation, 208 Merchants' Company, re, Breechloading Armoury Company, re, 207 Merchants' Company, re. Heritage's case, 195 ^d Merchant Traders' Ship Loan and Assu- rance Company, re, 178 Mei-chants, Traders, &o.. Insurance Asso- ciation, Halkett v. 120 Meredith's claim, re State Fire Insurance Company, 129 Merritt, Womersley v. 282, 283 MeiTy weather, Atwool v. 47; 40 Ad. Merryweather, Bast Pant Du United Lead Mining Company, v. 132, 289 Metropolitan Cab Company, Bloxam v. 116, 143 Metropolitan Carriage Company, re, ex parte Clarke, 173, 176 Metropolitan and Provincial Bank, re, 226 Metropolitan and Provincial Bank's claim, re Blakely Ordnance Company, 21 Ad. Metropolitan Bailway WarehoasingCom- p»ny, re, 153, 171 Metropolitan Saloon Omnibus Company, Bryon v. 19, 131 Metropolitan Saloon Omnibus Company V. Hawkins, 44 Metropolitan Saloon Omnibus Company, re, exparte Hawkins, 164, 166 Metropolitan Warehousing Company, re, Mexican and South American Mining Company, re, Barclay's case, 274 Mexican and South American Company re, Qrisewood'e case, 274 Mexican and South American Company j-e, exparte Hyam, 76 ' Mexican and South American Com- pany, re, Shewell's case, 187 Middleton, Poole p. 69, 75 Midland Counties Benefit BuildiuK So- ciety, re, 416, 420 Midland Great Western Railway Com- pany of Ireland i<. Johusou, 396 Midland Uiiilway Company, Stevens c, 46 U Midland Union, Ac, Eailway Company, re, Lucy's case, 246 Mid-Wales Hotel Company, re, 318 Mid- Wales Eailway Company, Bateman V. 9, 125, 126 Miers, Wilson p. 39 Migotti's case, re South Blackpool Hotel Company, 10, 78 Mildenhall Savings Bank, Beg. v. 430 Miles's case, re Exhall Coal Mining Com- pany, 83 Miller's case, 7-e Lama Company, 226, 245 Minima Organ Company, re, 231 Minor v. London and North Western Railway Company, 429 Mitchell, exparte, re Hull Forge Com- pany, 214 Mitchell, Humble v. 56 Mitchell V. Newhall, 59 Mitchell's case, re Norwegian Charcoal Iron Company, 189 Ad. Monmouth Canal Company, Maund )'. 46 Monmouthshire and Glamorganshire Banking Company, re, 169 Montefiore, Bamsgate Victoria Hotel Com- pany V. 82 Moore v. Burke, 6 Moore v. Bawlins, 23 Morell, Bult ». 126 Morgan, exjmrie, 66 Morley, Child r. 56, 57 Morris, Burbidge v. 4 Morris v. Cannan, 54, 64 Morrison v. Glover, 430 Morton, Martin's Patent Anchor Com- pany r. 29, 31, 144, 149 Moseley v. Cre^ey's Compsny, 5, 48 Moseley Green Coal Company, re, ex parte Barrett, 191, 200 Moses, Eoss v. 59 Moss, exparte, 169 Moss r. Syers, 10, 23 Mostyn f. Calcott Hall Mining Comvanv, 49, 267 Mounsey, Australian Steam Companv, V. 9, 19 •" Mowatt, West Cornwall Railway Com- pany c. 22 Muggeridge, New Brunswick and Canada Eailway Company v. 92 Munday, ex parte, re National Assurance and Investment Association, 186 Munster, ex parte, re Land Credit Com- pany of Ireland, 86 Murphy, Sheppard v. 73, 219 Murray v. East India Company, 125 Murrell, ex parte, re London and South Essex Railway Company, 167 Musgrave and Hart's case, re Overeud, Gurney, and Company, 77, 111, 187, N. Narborough and Watlington Eailway l-'ompany, re, ex parte James, 166 Nash, Boormau v. 68 Table of Oases. Hash, ex parte, re National Financial Company, 118 Natal, &o., Company, re, 166 Natal Investment Company, re, ex parte FiDancial Corporation, 21 Natal Investment Company, re, Snell's case, 28, 78 Ad. Natal Investment Companv, Wilson v. 174, 186 National Credit and Exchange Company, re, 120 National Financial Corporation, )•«, 165 National Financial Company, re, ex jmrte Nash, 118 National Financial Company, re, ex parte Oriental Commercial Bank, 241 National Insurance and Investment Asso- ciation, re. ex parte Mnnday, 186 National and Provincial Live Stock In- surance Company, r.e, 166 National and Provincial Marine Insurance Company, re, ex parte Parker, 76, 77, 111 National Patent Steam Fuel Company, re, 23 National Savings Bank Association, re, 119, 148, 159, 168, 172, 217, 218, 234 National Savings Bank Association, re, Hebb's case, 81 Nation's case, re Joint-Stock Discount Company, 77, 113, 195 Neath and Brecon Eailway Company, Dickson v. 45 Needham's case, re Blakely Ordnance Company, 24, 118, 119 Neill's case, re Accidental and Marine Insurance Corporation, 118, 120 ; 23 Ad. Neill's case, re Russian (Vyksounsky) Iron Works Company, 95 Ness V. Angas, 65 Ness V. Armstrong, 65 New Brunswick and Canada Railway Company v. Muggeridge, 92 NewBrunswick Oompanyt). Conybeare, 39 New Brunswick Railway Company, Boore J7.-268 New Clydach Sheet and Bar Iron Com- pany, re, 20 Newhall, Mitchell v. 59 JNew Quebrada Company, re, Ponlifex's case, 115 New Theatre Company, re, ex parte Bloxam, 80, 81 Newton v. Daly, 275 New Zealand Banking Corporation, Limi- ted, re, exparte Bank of Hindustan, 128 New Zealand Banking Corporation, ex parte, re Blakely Ordnance Com- pany, 21 New Zealand Banking Corporation, re, Levi and Company's case, 127 Ad. New Zealand BanMug Corporation, re, Sewell's case, 29, 52, 66, 191, 287, 389 Nicholl's case, 94 Nicholls' case, re Cosmopolitan Life As- surance Company, 80, 119 Nicholls, Ernest v. 15, 36 Nicholson v. Aggs, 128 Nicholson v. Bradfield Union, 36 Nister Dale Iron Company, re, Hughes's case, 246 Nixon V. Taff Vale Railway Company, 397 Nokes's case, re Masons' Hall Tavern, 79, 110 Norfolk Railway Company, Tetts ». 391 Normandy, Armstrong v. 182 Norris, Bulmer v. 55 North British Australasian Company, Swan V. 75, 110 North British Insurance Company v. Hallett, 54 North Eastern Railway Company, Cope- land V. 55 Northfield Iron and Steel Company, re, 198 North Hallenbeagle Mining Company, re. Knight's case, 26, 118, 138 North Kent Railway Extension Railway Company, re, 499 ; 499 Ad. North of England Joint Stock Banking Company, re, ex parte Sanderson, 214 North Stafford Steel, Iron, and Coal Com- pany (Burslem) re, ex parte Ward, 116 North Stafford Steel, Iron, and Coal Com- pany (Burslem), Limited, Ward v. 144 Northern Assam Tea Company, Higgs v. 2\Ad. Northumberland and Durham District Banking Company, re, 268 Northumberland and Durham District Company, re, Luard's case, 152 Northumberland and Durham District Banking Company, re, ex parte Totty, 245 Norton V. Cardiff Preserved, &c.. Coal Company, 157, 173 North Wales Railway Company, Jackson V. 396 North Western Trunk Company, 169 Norwegian Charcoal Iron Company, Mitchell's case, 189 Ad. Norwegian Titanic Iron Company, re, 10 Norwich Tarn Company, re, 171 Nutting, ex parte, 63 O. Oakes and Peek, ex parte, re Overend, Qurney, and Company, 172, 188, 201, 213 Oakes and Peek v. 'Turquand, re Overend, Gurney, and Company, 7, 14, 32, 33, 47, 49, 92, 93, 98, 99, 100, 187, 188 197, 268 O'Donnell, ex parte, 429 Ogilvie V. Currie, 40 Olding V. Smith, 397 Old Wheal Neptune Mining Company, re, ex parte Pulbrook, 235 Oriental Commercial Bank, re, 167, 169 Oriental Commercial Bank, re, ex pnrle Alabaster, 17 Ad. Oriental Commercial Bank, re, Burgc'i case, 102, 238 45 Table of Cases. Oriental Commercial Bank, ex pai-te Maxoudoff, 243 Oriental Commercial Bank, ex parte, re National Financial Company, 241 Oriental Hotel Company (Limited) v. Pelly, 142 Ormerod's case, re Littlehampton, Havrei, and Honfleur Steamship Company, 193, 274 Ornamental Pyrographio Woodwork Company v. Brown, 33, 143 Orpen'B case, 75 Orr V. TTnion Bank of Scotland, 75 Orton V. Cleveland Firebrick and Pottery Company, 16, 19 Ottoman Company, re, 207 Ottoman Company, Bank of Turkey v. 41,44 Ottoman Company, re, Hornby's case, 77, 219, 220 Ottoman Financial Association, Philips V. 31, 43, 145, 175 Overend, Gurney, and Company, re, Barrow's case, 148, 224 Overend, Gurney, and Company, re, Grissell's case, 199, 200 Overend, Gurney, and Company v. Gur- ney, 41 Ad. Overend, Gurney, and Company, ex parte, re Land Credit Company of Irdand, 126, 129 Ad. Overend, Gurney, and Company, re, ex parte Lintott, 148, 224 Overend, Gurney, and Company, re, ex parte Musgrave, 208 Overend, Gurney, and Company, re, Musgrave and Hart'stcase, 77, 111, 187, 196,208 Overend, Gurney, and Company, re; Oakes and Peek v. Turquand, 7, 14, 32, 33, 47, 49, 92, 93, 98, 99, 100, 187, 188, 197, 268 Overend, Gurney, and Company, re, ex parte Oakes and Peek, 172, 188, 201, 213 Overend, Gurney, and Company, re. Walker's case, 77, 195, 238 Overend, Gurney, and Company, re, Ward and Garfit's case, 77, 114, 195 Owen, Shackleford, Ford, and Company, «. 13, 49, 51, 142, 143, 144 Oxford and Canterbury Hall Company, re, 243 Ad. Oxford and Worcester Railway Company, re. Potter's case, 209 P. Packington, Eiley ». 4 Paige's case, ?-e Eussian fVyksounsky) Iron Works Company, 97 Paine, Cruse v. 62, 71; 62 Ad. Paine v. Hutchinson, 70, 220 Paine, Masted v. 62 Painter's case, 391 Palmer, Booney v, 68 Panama, &c, Koyal Mail Oompanv, Ken- nedy i\ 89 Ad Panonia Leather Cloth Company, re, 232 Park Lane Company, re, 387 Parker, Hopcroft v. 3 Parker, ex parte, re National and Pro- vincial Marine Insurance Company, 76, 77, 111 Parkinson, Booth v. 59 Parry, ex parte, re Great Ship Company, 163, 252, 277 Parsons' case, re European Central Bail- way Company, 55, 188 Ad. Parsons r. Spooner, 15, 35 Patchett, Gregory v. 42, 132 Patent Artificial Stone Company, re, 159 Patent Bread Machinery Company, re, 160 Patent Carriage Company, re Gore and Durant's case, 88 Patent File Company, re, ex parte White, 194 Patent Floor Cloth Company, re, VIS Ad. Patent Screwed Boot and Shoe Company, re, 320 Pauling V. London and North Western Eailway Company, 396 Pawle's case, re Estates Investment Com- pany, 99 Ad. Payne and Layton, ex parte, re South Essex Estuary and Beclamation Com- pany, 209 Pearse's claim, re British and American Steam Navigation Company, 243 Ad. Pearson, ex parte, re Wntshire Iron Com- pany, 213, 236 Pebrer, Josephs v. 59 Peek's case, re Abeiaman Ironworks Company, 82 Ad. Peel's case, re, Bamed's Banking Com- pany, 5, 7, 14^ 30, 32, 49, 78, m, 98, 188 Peel p. Thomas, 275 PeU's case, re Heyford Company, 79 Ad. Pellatt's case, re Bichmond Hill Hotel Company, 38, 81, 87, 145, 199 PeUy, Madrid Bank v. 18, 41, 181 Ad. Pelly, Oriental Hotel Company v. 142 Fenhale and Lomax Consolidated Silver Lead Mining Company, re, 114, 140,158 Peninsular, &o^ Banking Company, 7-e 222 Peninsular, West Indian, and Southern Bank, re, Austin's case, 86 Peninsular, West Indian, and Southern Bank, tie, Dixon's case, 14 Peninsular, West Indian, and Southern Bank, re, Jopp's case, 201, 213 Pennant and Craigwen, &&, Mining Com- pany, re, 171 Pennant and Craigwen Company, re. Fenn's case, 276 r j. . Pennell, Burnes v. 40, 64, 397 Penrose v. Martyr, 122, 129 Pentelow's case, re Warren's Blackins Company, 82, 99 ^ Peplow, Boulter v. 4 Pepper, ex parte, re Treasury Life Assur- ance Company, 183 Percival, ea; parte, re Mariborough Club Company, 187 Tahle of Cases. Pernvian RaiWays Company, re, Craw- ley's case, 81 Ad. ■ Peruvian Eailways Company, Hender- son V. m Peruvian Bailways Company, re. Inter- national Contract Corporation's case, 34 Peruvian Railways Company, re, Robin- son's case, 81, 213 Ad. Peruvian Railways Company v. Thames and Mersey Marine Insurance Com- pany, re Peruvian Railways Company, ft, 34, 35, 38, 125 Peruvian Railways Company, re, Wallis's case, 80 ; 81 Ad. Petroleum Company, re, 319 Ad. Philips V. Ottoman Financial Association, re Ottoman Financial Association, 31, 43, 145, 175 Phillips, ex parte, 171 Phillips, ex paa'te, re Chester and Man- chester Direct Railway Company, 167 Phillips, ex parte, re London and West- minster Insurance Company, 274 Phillips, Irish Peat Company v. 116 Phoenix Life Assurance Company, re, Howard and Dolman's case, 29 Pickering, re, ex parte Pickering, 150 Pickles, Queeusbui'y Industrial Society v. 417 Pilbrow V. Pilbrow'a Atmospheric Rail- way Company, 15, 35, 268 Pilbrow's Atmospheric Railway Com- pany, Pilbrow V. 15, 35, 268 Pinkett v. Wright, 75 Pitchford v. Davis, 3 Plant, ex parte, 28 Plas-yn-Mhowys Coal Company, re, 163, 175, 252 Plumstead, &c. Water Company, re, 172 PoGock, ex parte, re London and Man- chester Direct Railway Company, 169 Pontifex's case, re New Quebrada Com- pany, 115 Poole V. Middleton, 69, 75 Pooley, Athenaeum LifeAssurance Society V. 22, 36 Pope, ex parte, re Economic Omnibus Company, 280 Pott V. Flather, 68 Pott V. Turner, 56 Potter's case, re Oxford and Worcester, &c. Railway Company, 209 Powell V. Duff, 63 Prendergast v. Turton, 27 Prescott, Gumming v. 54 Preston Collier Company, Mangles v. 64 Preston v. Grand Collier Dock Company, 23, 27, 391 Preston!!. Li verpooIRail way Company, 36 Preston, ex parte, re London and Ham- burg Bank, 192 Preston's case, re General Exchange Bank, 16, 35 Price, Wynne v, 68 Prince V. Prince, 280, 396 Prince of Wales Assurance Society v. Atheneeum Insurance Society, 15, 50 Public Life Assurance Society, re, 280 Pulbrook, ex parte, re Old Wheal Neptuno Mining Company, 235 Pulbrook, ex parte, re Union Cement and Brick Company, 185 Ad. Quartz Rock Mariposa Gold Mining Company, Lacharme v. 45 Queensborough, Corporation of, Marshall ». 36 Queensbury Industrial Society v. Pickles, 417 R Raglan Hall Collieries Company, re, 79 Ad. Railway Finance Company, re, 164, 179 Ramsgate Victoria Hotel Company v. Goldsmid, 82 Ramsgate Victoria Hotel Company v. Montefiore, 82 Ranger v. Great Western Railway Com- pany, 397 Raper, Gray v. 278, 420 Rasch, ex parte, re Accidental and Marine Insurance Company, 161 Rawbone, re, 54 Rawlins, Moore v. 23 Rawlins v. Isle of Wight and Southamp- ton Steam Boat Company, 44, 140 Read's case (Pamshs shares^ re Joint- Stock Discount Company, 77, 112, 195 Bead's case (Smallbone's shares), re Joint- Stock Discount Company, 77, 112, 195 Reece v. Wilkins, 53 Eees V. Femie, 58 Reese River Co., re, ex parte Atwell, 214 Reese River Silver Mimng Co., 41, 255 Reese River Silver Mining Company, Smith V. 146 Reese River Silver Mining Company, »•«, Smith's case, 92, 96 Reeves v. White, 430 Regent's Canal Iron Company, re, 17, 37 Reg. V. Frankland, 267 Reg. V. GeneralCemeteryCompany, 55, 75 Reg. V. Inns of Court Hotel Company, 74 Reg. V Mildenhall Savings Bank, 430 Reg. M. Trafford, 430 Reid's case, re Electric Telegraph Comr pany of Ireland, 189 Rhydydefed Colliery Company, re, 156, 168 Richardson, ex parte, 54 Richmond's case, 23, 391 Richmond's Executors' case, 66 Richmond Hill Hotel Company, re, El- kihgton's case, 86, 88 Richmond Hill Hotel Company, re, ex parte King, 150 Richmond HiU Hotel Company, re, Pel- latt's case, 38, 81, 87, 145, 199 Riddell's case, re Colonial and General Gas Company, %13 47 Table of Oases. Riddiok ». Deposit and General Life Assurance Company, 279 Eiley v. Paokington, 4 Kieca Coal and Iron Company, re, 245 Roberts, Brahmah v. 126 Eobins v. Edwards, 73, 219 Robinson v. Burbidge, 62 Robinson v. Chartered Bank of India, 76 Robinson's Executors' case, 31 Robinson's case, re, Peruvian Railways Company, 81, 213 Ad. Roebuck's case, Alexandra Hall Com- pany, ?'e, 115 Roebuck, WUkins v. 15 Rogers v. HoUoway, 53 Rogers's case, re Universal Banking Company, 88 Rogerson v. Anglo-Danubian Steam Navigation and Colliery Company, 44 Rolling Stock Company of Ireland, re, Shackleford'g case, 86 Roney, ex parte, re Llanbarry Hematite Iron Company, 83 Rooney v. Palmer, 68 Ross w. Estates Investment Company, 47,91 Boss V. Moses, 69 Ross's case, re Bank of Hindustan, China, and Japan, 241 Rosewarne v. Billing, 58 Rotberhithe Co-operative and Industrial Society, re, 420 Rowley, Sbaw v. 68 Royal Bank of Australia, re, ex parte Cockburn, 65 Royal Bank of India's case, re Asiatic Banking Corporation, 34, 190 ; 17, 34, S7 Ad. Royal British Bank, re, exparte Hue, 194 Royal British Bank v. Turquand, 16, 20, 36,37,125 Royal British Bank, re, ex parte Walton, 194 Royal Hotel Company of Great Tar- mouth, re, 265 Royal Hotel Company of Great Tar- mouth, re, Hann, Clayton, and Com- pany's case, 87 Rudge V. Bowman, 237 Rudolph V. Inns of Court Hotel Com- pany, 101, 143 Russell V. Croysdill, 182 Russell, Stray v. 57, 69, 68, 220 Russian (Vyksounsky) Iron Works Com- pany, re, Jackson's case, 95 Russian (Vyksounsky) Iron Works Com- pany, re, Kincaid's case, 8^97 Russian (Vyksounsky) Iron Works Com- pany, re, Neill's case, 96 Russian (Vyksounsky) Iron Works Com- pany, re, Paige's cose, 97 Russian (Vyksounsky) Iron Works Com- pany, re, Stewart's case, 8, 74, 94, 95 Russian (Vyksounsky) Iron Works Com- pany, re, Taite's case, 97 Russian (Vyksounsky) Iron Works Com- pany, re, Torrens's case, 110 48 Russian (Vyksounsky) Iron Works Com- pany, re, Webster's case, 95 Russian (Vyksounsky) Iron Works Com- pany, re, Whitehouse's case, 97 Rutter, Cuddee v. 69 S. Sablonifere Hotel Company, re, 222 Salomon, Westropp v. 57 Saloon Steam Packet Company, re, ex parte Pletoher, 80, 81 Samuel Bastow and Company, re, ex parte Bastow and Company, 214 Sanderson, ex parte, re North of England Joint Stock Banking Company, 214 Saunders, Courtauld v. 128 Saunders's case, re Waterloo Life, &c., Company, 190 Savage, Brown v. 54 Sayles v. Blane, 68, 69 Scarborough Cliff Hotel Company, Hut- ton V. 10, 12, 23, 130, 131 Schmseck, EUis v. 276 Scinde, Punjanb, and Delhi Bank Corpo- ration, 222, 227, 247, 249 Scottish Universal Bank, re, ex parte Ship, 100, 213, 243 Scottish Universal Finance Bank, re, Breckenridge's case, 114 Scott V. Lord Ebnry, 3 Sea, Fire, and Life Assurance Company, Gordon v. 23, 126 Sea and River Marine Insurance Com- pany, re, 166 Seaton v. Grant, 47, 220 Seidler, ex parte, 318 Self, Fleming r. 430 Sequelin v. Terrell, 32 Serrell v. Derbyshire, &c., Railway Com- pany, 396 SeweU's case, i-e New Zealand Banking Corporation, 29, 52, 66, 191, 287, 389 ShacMeford's case, >■« Rolling Stock Com- pany ol Ireland, 86 Shaokleford, Ford, and Co. t. Owen,*13 49, 51, 142, 143, 144 Shaokleford, Ford, and Co. v. Dangerfield 13, 49. 51, 142, 143, 144 Sharon's claim, re Alexandra Park Com- pany, 244 Sharp, Stewart and Co., re, 384, 386, 387 Shaw r. Fisher, 69, 105 Shaw c. Holland, 69 Shaw r. Rowley, 68 Shea i: United Assurance Sooietv of St Patrick, 429 Sheai-s r. Jacob, 34, 48, 49 Sheffield and Hallamshire Ancient Order of Foresters' Co-operative and Indus- trial Society, re, exparte Fountain, 268, 270, 271, 431 ' Shepherd, Chapman r. 67, 69, 162, 220, 238 Shepherd v. Gillespie, 66, 73 Shepherd's case, re Joint-Stock Discount Company, 73, 76, 112, 113, 196 Tiihle of Gas ex Sheppard v. Murphy, 73, 219 Sheridan, Bermingham v. 70, 73, 76 Sherwood Loan Company, re, 171, Shewell's case, re Mexican and South American Company, 187 Shields Marine Insurance Association, re, Lee and Moor's case, 274, 277 Ship, Downes v. 5, 8, 94, 100 Ship's case, re, Scottish and Universal Finance Bank, 100, 213, 243 Shipman's case, re Joint-Stock Discount Company, 77, 113, 195 Shortridge, Bargate ji. 64, 65, 76 Shortridge, Bosanquet v. 65 Shrewsbury and Hereford Railway Com- pany, Leominster Canal Company v. 396 SicheU's case, re Joint-Stock Discount Company, 114, 193 Siggers, Heseltine v. 196 Simpson's case, Aldborongh Hotel Com- pany, re, 87 Simpson's case, re Heaton Steel and Lron Company, 108 Ad. Simpson v. Westminster Palace Hotel Company, 9 Sinnott, London Dock Company v. 15, 36 Sizer, Alexander v. 128 Slark, Highgate Archway Company v. 23, 126 ^ Slater's case, re Hafod Lead Mining Com- pany, 76 Sligo and Shannon Railway Company, Mackenzie v. 174, 490 Smart v. West Ham Union, 35 Smith, ex parte, re Bank of Hindustan, China, and Japan, re, 222, 253 ; 182 Ad. Smith V. Birmingham and Staffordshire Gas Company, 46 Smith, Fleming, and Company's case, re Commercial Bank Corporation of India and the East, 183, 200 Smith V. Hull Glass Company, 15, 37 Smith V. Johnson, 126 Smith, Knight, and Company, re, 246; 207, 208 Ad. Smith, Knight, and Company, re, ex parte Ashbury, 222, 254 Smith, Knight, and Company, re, Wes- ton's case, 77, 219, 231 Smith, Lanyon v. 275, 278 Smith V. Lloyd, 430 Smith, London Monetary Advance and Life Assurance Company v. 1, 145, 281 Smith, Olding v. 397 Smith V. Reese River Silver Mining Com- pany, 145 Smith's case, re, Reese River Silver Mi- ning Company, 92, 96 Smith, Sweny ». 23, 27 Ad. SneU's case, re Natal Investment Com- pany, 28, 78 Ad. Solomon, Westropp ». 57 South Barrule Slate Quarry Company, re, 175 Ad. South Blackpool Hotel Company, re, ex parte James, 21 Ad. „«** South Blackpool Hotel Company, re, Migotti's case, 10, 78 South Eastern Railway Company, Ward V. 64 South Eastern Railway Company, Whit- field V. 46 South Essex Estuary and Reclamation Company, re, ex parte Payne and Layton, 209 South Essex Estuary and Reclamation Company, re, 319 South of France Company, re. Baron de Beville's case, 10, 80, 192 South of Ireland Colliery Company v. Waddle, 17, 36 South Kensington Hotel Company, )'e,184 South Kensington Hotel Company, re, Braginton's case, 109 Southampton, Isle of Wight, and Ports- mouth Company, re, Webb's case, 110 Spackraan, ex parte, re Agriculturists' Cattle Insurance Company, 166 Sparge, Freehold Laud and Brickmaking Company v. 141 Spartali and Tabor, ex parte, re Inter- national Contract Company, 172 Spenoe's Patent Company, re, 159 Ad. Spiller V. Maude, 421 Spooner, Parsons v. 15, 35 Spratley, Watson v. 56, 273 Staoe and Worth's case, re London and Northern Insurance Corporation, 17 Ad. Stanhope's case, 27 Stanley v. Bond, 53 Stanley, ex parte, re British Provident Life Assurance Society, 22 State Fire Insurance Company, re, ex parte Meredith's claim, 129 State Fire Insurance Company, re. Times Company's claim, 202 State Fire Insurance Company, re, Webster's case, 27 St. Cuthbert's Lead Smelting Company, re, 175 St. David's Gold Mining Company, re, 166, 218, 232, 319 Stearic Acid Company, re, 223 Steele v. Harmer, 126 Steinberger v. Carr, 68 Stephen's case, 7-e Barned's Banking Company, 127 Stephens v. De Medina, 68 Stevens's Hospital v, Dyas, 36, 138 Stevens, M'Creight v. 144 Stevens v. Midland Railway Company, 46 Stevenson, ex parte, re Cleveland Iron Company, 99 Stewart v. Austin, 6, 48 Stewart v. Oauty, 56, 68 Stewart's case, re Agriculturists' Cattle Insurance Company, 23 Stewart's case, re Russian (Vyksounsky) Iron Works Company, 8, 74, 94, 95 St. George's Harbour Company, Williams V. 36 Tahhi of Cases. stiles V. Cardiff Steam Navigation Com- pany, 46, Stirling, Hayes v. 6 Stock, ex 2>arte, re Llanharry Hematite Iron Company, 83, 138 Stooken's case, re Blakely Ordnance Com- pany, 24, 145 Stockport District Waterworks Company V. Mayor, &c., of Manchester, 47 Stone, Biederman v. 57, 69, 219, 220 S tone's case, re German Mining Company, 207 Straffon's Executors' case, 65 Strand Music Hall Company, re, 34 Strand Music Hall Company, re, ex parte European and American Finance Cor- poration, 20 Stray v. Enasell, 67, 59, 68, 220 Stray, Taylor v, 57, 220 Stringer's case, re Mercantile Trading Company, 34 Ad. Strong V. Harvey, 274 Stubbs V. Lister, 27 Suburban Hotel Company, re, 155, 166, 171, 177 Sutherland, Maclae v. 126 Sutton V. QarnetandMoseley Gold Mining Company, 200 Sutton V. I'atham, 57 Swan V. North British Australasian Com- pany, 75, 110 Swansea Harbour Trustees, Williams «. 40 Sweny ii. Smith, 23, 27 Ad. Syers v. Brighton Brewery Company, 10 Syers, Moss v. 10, 23 T. TafE Vale Railway Company, Nixon ». 397 Taft V. Harrison, 76 Taite's case, re Bussian (Vyksounsky) Iron Works Company, 97 Tamar, Kit Hill, and Collington Eailway Company, Darcy v. 15, 17, 37, 48 Tatham, Sutton v. 67 Tavistock Ironworks Company, re. Lis- ter's case, 17, 24, 37, 109, 138, 142, 190 Taylor, Cragg v. 63, 106 Taylor v. Dulwich Hospital, 36 Taylor v. Hughes, 65 Taylor v. Stray, 67, 220 Teague v. Howbeaoh Coal Company, 33, 142,143 '^ ■" ' Tempest v. Kilner, 56, 69, 274 Terrel v. Hutton, 15, 35 Terrell, Sequelin v. 32 Thames Ironworks Company, Cory v. Thames and Mersey Marino Insui-ance Company, Peruvian Kailways Com- pany V. 9, 34, 36, 38, 125 Thomas, Peel c. 275 Thomas v. Wells, 173 Thompson, Daly i\ 76 Thompsons case, it Life England, 8C 60 Association of Thompson, Universal Salvage Company V. 126 Thompson v. Wesleyan Newspaper Com pany, 23, 126 Thomson, Cnllen v. 40 Thornton, ex parte, re Bamed's BanMnf Company, 206 Thrupp, Barnes v. 174 Times Company's claim, re State Pin Insurance Company, 202 Timms v. Williams, 430 Toll V. Lee, 275 Tondeur and Lempriere's case, re Agn and Masterman's Bank, 128, 183, 242 Torquay Bath Company, re, 261, 264, 268 275 Torrens's case, re Russian (Vyksounsky' Iron Works Company, 110 Torrington v. Lowe, 62 Tothill's case, re Llanharry Hematiti Iron Company, 85 Totterdell v. Fareham Blue Brick anc Tile Company, 7, 17, 29, 37, 48, 138 Totty, ex pa}'te, re Northumberland anc Durham DistrictBanking Company, 24; Touthill V. Douglas, 431 Towne v. London and Limerick Stean Ship Company, 136 Trafford, Beg. r. 430 Treasury Life Assniance Company, re, ea parte Pepper, 183 Tredwen v. Bonme, 275 Trent and Humber Shipbuilding Com- pany, re, Bailey and Leetham's case 175, 182 Ad. Trent and Humber, &a, Company, re, ca parte Cambrian Steam Packet Com- pany, 244, 326 ; 244 Ad. Tring, Beading, &&, Railway, re, 319 Tring, Beading, and Basingstoke Bailwaj Company, re, Cox's case, 198 Tritten, ex parte, re Bahia and San Fran Cisco Eailway Company, 76, 101, 106, IIC Trowbridge Water Supply Company, re. Turner, Pott r. 56 Turrdey and Oliver, ex parte, re Estates Investment Company, 214 Ad. Turquand, re, 54 Turquand v. Kirby, 161, 181, 203 Turquand r. Marshall, 41, 44, 181, 246, 278 ; 41 -Id. Turquand, Oakes and Peek v. 7, 14, 32 33, 47, 49, 92, 93, 98, 99, 100, 187, 188 197, 268 Turquand, Eoyal British Bank v. 15, 20 36, 37, 125 Turton, Prendergast v. 27 Tyler, Kelsall v. 430 V. Underwood's case, re Eastern Counties &c. Eailway Company, 176, 201, 246 Union Bank of Calcutta, re, ex parti Watson, 1G7 Table of Gases. Union Bank of Scotland, Orr v. 75 Union Cement and Brick Company, re, ex parte Pulbrook, 186 Ad. United Assurance Society of St. Patrick, Shea V. 429 United English and Scottish Assurance Company, re, exparte Hawkins, 198, 253 United English and Scottish Life Insur- ance Company, re, 174, 253 United Kingdom Ship Owning Com- pany, Eelgate's case, 30, 78, 191 United Merthyr Collieries Company, re, 223, 232 United Service Company, re, 170, 230, 235; no Ad. Unity General Assurance Association, re, 120 Universal Bank, re, 172, 214 Universal Banking Corporation, exparte Challis and others, 18, 189 Universal Banking Corporation, re, Gunn's case, 80 Universal Banking Corporation, re, Bogers's case, Harrison's case, 88 Universal Provident Association, re, DanieU's case, 80, 119 Universal Salvage Company W.Thompson, 126 V. Vale of Neath Brewery, re, White's case, 66 Vale of Neath and South Wales Brew- ery Company, re, ex parte Walters, 65 Valpy, Dickinson v. 126 Van Dieman's Land Company, Cockerel! V. 23 Van Dieman's Land Company ». Cock- erell, 23 Vaughan, re, ex parte Canwell, 149 W. Waddle v. South of Ireland Colliery Company, 17, 36 Walker v. Bartlett, 64^ 69 Walker v. The Great Western Eailway Company, 397 Walker's case, re Anglo-Danubian Steam Navigation and CoUiery Company, 113, 194, 195, 196 Walker's case, re Overend, Gumey, and Company, 77, 195, 238 Wallis's case, re Peruvian Eailways Com- pany, 80, 81 Ad. Walters, ex parte, re Vale of Neath and South Wales Brewery Company, 65 Walton, exparte, re Royal British Bank, 194 Ward and Gariit's case, re Overeud, Gumey, and Company, 77, 114, 144, 195 Ward and Heni^-'s case, re London, Hamburg, and Continental Exchange Bank, 77, 108, 111, 114, 115, 196 Ward V. North Stafford Steel, Iron, and Coal Company (Burslem), 144 Ward, ex pwte, re North Stafford Steel, Iron, and Coal Company (Bm'slem), 115 Ward V. South Eastern Eailway Com- pany, 54 Waring, ex parte, re Agra and Mas- terman's Bank, 243 Waring v. Hare, 68, 105 Warrant Finance Company, ex parte, re Humber Iron Works, &c. Company, 23 ; 241 Ad. Warrant Finance Company, ex parte, re Humber Ironworks &c.. Company (No. 2), 213, 241 Ad. Warrant Finance Company's case, re Joint-Stock Discount Company, HXAd. Warren's Blacking Company, re, Pen- telow's case, 82, 99 Warwick and Birmingham Bail way Com- pany, Bryson v. 44 Washoe Mining Company v. Ferguson, 140, 141 Waterford and Passage Eailway Com- pany, re, 500 Ad. Waterloo Assurance Company, re, 174, 262, 277, 282, 283 Waterloo Life, &c., Company, re, Saun- ders's case, 190 Watford and Eickmansworth Eailway Company v. London and North- Western Eailway Company, 316 Ad. Watkins, ex parte, re London, Hamburg, and Continental Exchange Bank, 77, 196 Watson V. Spratley, 66, 275 Watson, ex parte, re Union Bank of Cal- cutta, 167 Webb's case, re Southampton, Isle of Wight, and Portsmouth Company, 110 Webster's case, re Bussian (Vyksounsky) Ironworks Company, 95 Webster's case,, re State Fire Insurance Company, 27 Weeks v. Maillardet, 63 Wellesly v. Hull Flax and Cotton Com- pany, 268 Wells V. Estates Investment Company,174 Wells V. Gibbs, 63 Welle, Thomas *. 173 Wesleyan Newspaper Association v. Thompson, 23, 126 Wesson, ex parte, re Licensed Victuallers and General Plate Glass Insurance Company, 226 West Cornwall Eailway Company v, Mowatt, 22 West Ham Union, Smart v. 35 West Hartlepool Eailway Company, Wil- son V. 36, 397 West India and Pacific Steamship Com- pany, re, 384, 403 West Silver Bank Mining Company, re, 280 West Surrey Tanning Company, 155, 170, 218 West Worthing Waterworks, Baths, and Assembly Booms Company, re, 164 Westby i>. Westby, 53 Table of Gases. Wostom Bank of Scotland v. Addie, 38, 47,89 Western Benefit Building Society, re, 320 Western Neilgherry Tea Company, Inch- bald 1). 45 Westland's case, re Barned's Banking Company, 213 Westminster Palace Hotel Company, Simpson v. 9 Weston's case, re Contract Corporation, 119 Weston's case, re Smith, Knight, and Co., 77, 219, 231 Westropp V. Solomon, 57 Wexford and Valencia Bailway Com- pany, re, ex parte Fisher, 166 Wey and Arun Junction Canal Company, re, 171, 276 Wheal Anne Mining Company, re, 169, 275 Wheal Emily Mining Company, re, Cox's case, 276 Wheal Lovell Mining Company, re, ex parte Wyld, 166, 275 white, The Birmingham, Bristol, and Thames Junction Eailway Company v. 143 White, DeffeU v. 34, 49 White, ex parte, re Patent File Company, White, Beeves v. 430 White's case, re Vale of Neath Brewery Company, 66 Whitehaven and Purness Railway Com- pany, Bain v. 116 Whitehouse's case, re Russian (Vytsoun- sky) Iron Works Company, 97 Whitfield V. South Eastern Bailway Com- pany, 46 Whitham, Imperial Mercantile Credit Association v. 44 Wilkins, Bayley v. 57, 58 Wilkins, Bristed v. 53 Wilkins, Beece v. 53 Wilkins v. Boebuok, 15 Wilkinson v. Anglo-Califomian Gold Company, 105 Wilkinson v. Lloyd, 68 Wilkinson's case, re Madrid Bank, 98 Williams, ex parte, 169 Williams, Bromley v. 274 Williams v. Chester and Holyhead Rail- way Company, 396 Williams, Crewer and Wheal Abraham United Mining Company v. 20 Williams's case, i-e Era Assurance Com- pany, 244 Williams v. Harding, 149 Williams, ex parte, re Madrid Bank 16 242 ' Williams ». St. George's Harbour Com- pany, 36 Williams v. Swansea Harbour Trustees, 40 Williams, Timms r. 430 Wilmot, Derby Canal Company v. 49 Wilson, Ferguson v. 38, 40, 42 Wilson i: Keating, 69 62 Wilson V. Miers, 39 Wilson V. Natal Investment Companj 174, 186 Wilson V. West Hartlepool Railway Com pany, 36, 396, 397 Wilson's case, re Commercial Bank Cor poration of India and the East, 5G 189 Ad. Wiltshire Iron Company, re, ex part Pearson, 213, 236 Winne v. Bampton, 36 Winter, London and Birmingham Bail way Company v. 36, 396 Wise, ex parte, re London Conveyanci Company, 167 Wolesey, expaiie, 319 WoUaston, Colt i: 5 Wolverhampton New Waterworks Com- pany V. Hawksford, 116 Wolverhampton Waterworks Company Homersham v. 396 Womersley ». Merritt, 282, 283 Wood, Evans v. 70, 71, 73, 220 Wood, McEwen v. 59 Wooldridge, ex parte, 430 WooUaston's case, 26, 27 Woolmer's case, re Direct Exeter, Ply- month, &c Bailway Company, 173, 17f Worcester, re, ex parte Agra, Bank, 54, lOJ Worcester's case, re Fresh Provision Preserving Company, 17, 38, 138 Worcester and Birmingham Canal Pro- prietors, Hopkins v. 22 Worcester Com Exchange Company, re, 46 Worcester, Tenbury, and Ludlow Bail- way Company, re, 175 Wragge's case, re Breech Loading Armoury Company, 244 Wright and Gamble, ex parte, re General Estates Company, 326 Ad. Wright, er parte, i-e London and Birming- ham Flint Glass and Alkali Company, 157 Wright's case, re London and Mediter- ranean Bank, 24 Wright, Pinkett i: 75 Wrysgan Company, re, Humby's case, 194 Wyld, ex parte, iv Wheal Lovell Mining Company, 166, 275 Wy]ey v. Exhall Coal Mining Company, Wynne r. Price, 68 Xeres Wine Shipping Company, re ex parte Alliance Bank, 243 Tarborough v. Bank of England, 46 Yelland's case, 64 Yelland's case, re English Joint-stock IJank, 242 Yetts V. Norfolk Bailway Company, 391 Young ,'. Cole, 58 f J. * THE la&j anlr Ptactto JOINT-STOCK COMPAJSTIES. The Law of Partnership prescribes that each partner shall be answerable for the debts and contracts of the other partners, made within the reasonable scope of the business of the partnership. This law was founded upon the principle that he who acts through an agent ought to be responsible for his agent^'s acts ; that it is pohtic as weU as just that he who shares the profit of an enterprise should be subject also to its losses ; that there is a moral obligation, which it is the duty of a civilised and Christian nation to enforce by law, to pay debts, perform contracts, and make reparation for wrongs. Limited Liability is founded on the opposite principle, and is designed to enable a ■ man to avail himself of the acts of his agent, if advantageous to him, and to avoid responsi- bility for them if they should be disadvantageous; to speculate for profits without being liable for losses ; to make contracts, incur debts, and commit wrongs, the law depriving the creditor, the contractor, and the injured, of his rightful remedy against the property or the person of the wrongdoer, beyond the limit, however small, at which it may please him to determine his own liability. Thus it practically enables a trader to speculate for the chances of indefinite gain, without being liable for more than a definite loss. Definition or Limited LiiBiLiTT. Limited liability, which has now been adopted into our commercial legislation, does not mean, as is commonly h ii Law and Fradice of supposed, the right to make with those with whom we deal a special contract that we shall not be liable beyond a named sum ; such a contract was always within the power of per- sons dealing together ; nor is it, as some imaginej a freedom, hitherto denied to partners, to make whatever conditions of partnership they please, as between themselves, for such power, also, has always existed. But limited liability, as now estabHshed, is a privilege given by the law to seven or more partners to make terms of partnership among themselves that shall be binding upon all other persons ; that is to say, it permits A., B., and five others, to agree together that they will not pay their debts, nor perform their contracts, nor repair any wrongs they may do, beyond a limit determined by themselves, and then, by public notice of that limitation, to make the agreement inter se binding on third persons. This result is effected by depriving the persons dealing with them of the right, which justice demands, and the laws of all civilised countries have hitherto recognised, to recover debts and enforce contracts, and by taking from the public the right to obtain redress for injuries done. The righteousness of such a law needs not now to be dis- cussed. Much difference of opinion upon it has prevailed ; but the Legislature having decided upon its expediency and prescribed the manner of its adoption, the duty of the lawyer and the citizen is to give his best assistance towards accom- plishing the object avowedly sought by the advocates of this law— the encouragement of speculation, by the offer of an unlimited chance of gain with only a Hmited risk of loss. That it has accomplished this design the commercial history of the period that has followed the passing of this act suf- ficiently proves. Whether it has been for the advantage of the country, moraUy or commerciaUy, is another question, which every reader will readily answer. Advantages op Limited Liability. The advantages thus offered to speculators by limited lia- bility are enormous Probably few, even of those who have given some thought to the subject, are aware of the full ex- tent of the boon conferred upon persons who speculate under its protection, as compared with persons not so privileged. ?«°J['? 'U 'r?n'^ *>'* '* ^' '^^^'^l* foi' individual traders, saddled with habihty to pay their debts, perform their con Joint-Stock Companies. iii tracts and make reparation for their wrongs, to compete with rivals who can trade to an unlimited extent without such liabilities. The advantages to be enjoyed by reason of limited liability may be thus enumerated. You are permitted to incur debts without . limit, but to prescribe your own limit for payment of them. You may invest 201., and trade to the amount of 250j000Z. ; if you succeed, your profits will be enormous ; if you fail, you can lose only your 201. ; the rest of the loss must fall upon your creditors. You are placed by this law in the advantageous position of a man who has everything to gain and nothing to lose. It is obvious wisdom, in any game of chance or skill, where the sum staked by you, is limited, but the sum for which you play is unlimited, to play for the highest stake upon the table. Limited liability places you precisely in this desirable position. You cannot lose more than your 201., while it is open to you to speculate for 1000/!., or for 1D0,000Z. The reason why prudent persons did not so speculate formerly was their consciousness that they must stake, not merely the 201. they laid down, but also an amount equal at least to the sum played for. Released by the law from that Hability, and your loss limited to your small stake, you have no longer need for caution, and not only may you safely speculate without limit, but, according to the well-known doctrine of chances, it will be the most prudent course for you to do so. Again, it seems not to be generally understood that by limited liability you enjoy another privilege, greater even than that of speculating for unlimited profits with liability only for limited loss. As you are not liable for debts beyond your 201., so you are equally exempt from performance of inconvenient contracts. Hitherto, if you had made a con- tract of any kiud, performance of it might have been en- forced, however inconvenient to you. I^ for instance, you had contracted to take a thousand quarters of wheat on a day named, at a price named; as the law was for partners, and is still for individuals, you were compelled to take the wheat on the day, even although it had then so fallen in price that you must lose 500L by your bargain. The same obligation to abide by his bargain was imposed upon the seller. If the wheat had risen in price, still he was bound to deliver to you, though at a loss to himself of 500Z. But, protected by limited liability, you are enabled to refuse to b2 iv Lmv and Practice of perform your contract, if the price has fallen, while the per- son with whom you deal, not being equally privileged with yourself, will be compelled to perform his contract, if it should be for your advantage to enforce it. This privilege to enforce advantageous contracts, without being liable to perform disadvantageous contracts, gives to limited liability partnerships an incomparable superiority over individual traders, and will continue to do so until all are put upon an equal footing by the extension of the same great privilege to individuals as partners now enjoy. It is the like with other liabilities to which individuals are now subject, but from which partnerships with limited liability are exempt. There is a large class of liabilities, known to the law as wrongs, which iu the course of business are often done accidentally, but for which the law, never- theless, makes the doer answerable hx damages ; such as a stage-coach kilHng a passenger, a ship running down another ship, undermiuing a house, and so forth. For none of these acts is a limited liability Company responsible beyond the amount of its shares subscribed, and if those shares are paid up, nothing, not even costs, can be recovered by the person wronged if an action be brought ; but, practically, no person will bring an action against a Company from which he can recover nothing. Many other special advantages and immunities flowing from the privilege of limited liability might be enumerated, but they will readily occur to every reader. These, how- ever, will suflace to convey to persons unacquainted with this modern commercial principle and its application some conception of the extent to which it is capable of beinff enjoyed. ° "The Companies Act, 1862." This act is designed to consolidate the entire law of Joint- stock Companies, and to regulate their constitution, govern- ment, and winding-up. No Company, association, or partnership consisting of more than ten persons, may be formed for the purposes of bankmg, or of more than twenty persons for the purpose of carrying on any other business that has for its object the Sri r incorporated under this act : Excepting only — 1. Companies formed under act of Parliament. Joint-Stock Gomjrianics. V 2. Companies constituted by letters patent. 3. Companies for working mines within the jurisdiction of the Stannaries. These three classes of Companies may continue under their existing constitution ; so that this act does not necessarily affect Railway Companies or partnerships on what is called the cost-book principle : (sect. 4.) This act governs — I. Companies previously existing. II. Companies thereafter to be formed. It wiU be more convenient to treat of each separately. Its OPEBiTioN on theisi existing Companies. Sect. 181 thus defines an existing Company required to register under its provisions : — 181. For the purposes of this part of this act, so far as the same relates to the description of Companies empowered to register as Com- panies limited by shares, a Joint-stock Company shall be deemed to be a Company having a permanent paid-up or nominal capital of fixed amount, divided into shares, also of fixed amount, or held and transferable as stock, or divided and held partly in one way and partly in the other, and formed on the principle of having for its members the holders of shares in such capital, or the holders of such stock, and no other persons ; and such Company when registered with limited liability under this act shall be deemed to be a Company hmited by shares. And an Insurance Company is thus defined by sect. 3 : — 3. For the purposes of this act a Company that carries on the business of insurance in common with any other business or businesses shall be deemed to be an insurance Company. All existing Companies may be thus classified : — I. Companies originally registered under the Joint- Stock Companies Registration Act (7 & 8 Vict. c. 110), and afterwards registered, but not formed, under "The Joint-Stock Companies Act of 1856." II. Companies formed and registered under "The Limited Liability Act of 1855," and " The Joint- Stock Companies Act, 1856." III. Banking Companies. IV. Companies established by act of ParHament, letters patent, or royal charter. V. Insurance Companies. vi Law and, Practice of I. Existing Oompwnies registered hut not formed under " The Joint- StocTc Oompardes Act, 1856.'^ The 177tli section thus enacts : — 177. This act shall apply to Companies registered but not formed under the said Joint-Stock Companies Acts or any of them in the same manner as it is hereinafter declared to apply to Companies registered but not formed under this act, with this qualification, that wherever reference is made expressly or impliedly to the date of registration, such date shall be deemed to refer to the date at which such Companies were respectively registered under the said Joint-Stock Companies Acts or any of them. The reference in the above section is to sect. 180, which describes the existing Companies capable of being registered under this act. 180. With the above exceptions, and subject to the foregoing regula- tions, every Company existing at the time of the commencement of this act, including any Company registered under the said Joiut-Stock Companies Acts, consisting of seven or more members, and any Company hereafter formed in pursuance of any act of Parliament other than this act, or of letters patent, or being a Company engaged in working mines within and subject to the jurisdiction of the Stannaries, or being otherwise duly constituted by law, and consisting of seven or more members, may at any time hereafter register itself under this act as an unlimited Company, or a Company limited by shares, or a Company limited by guarantee ; and no such registration shall be invalid by reason that it has taken place with a view to the Company being wound-up. It is expressly provided that no Company in which the liability of all the members is already limited by act of Parliament or letters patent, shall register under this act as an unlimited Company, or as a Company limited by guarantee, and no Company is to register in pursuance of this act unless vnth the assent of a majority of its members at a general meeting summoned for the purpose, and if it is designed to register as a limited Company, such majority must be of not less than thi'ee-fourtlis of the members present, or voting by proxy: (sect. 179.) If the Company purpose to register as a Company limited by guarantee, such assent mtist be accompanied by a reso- lution declaring that each member undertakes to contribute to the assets of the Company, in case it should be wound-up, such sum as may be agreed upon : (sect. 179.) The effect of this will be, that a Company in difficulties a,nd contemplating a winding-up and its consequences in un- limited calls, may resolve to limit the liability of its members to a fraction only of that which might be claimed from them Joint-Stock Companies. vii in their former characterj and so tlie members may evade their responsibility, notwithstanding the proviso that they shall remain liable for debts incurred before the change, and for the costs of a winding-up. The simple and ready mode of escape thus kindly provided for them will be to pay off the liabilities to which there is no limit with the moneys borrowed or goods obtained after the liability becomes limited. II. Compcmies formed amd registered under " The Linvited Liability Act of 1855" and "The Joitit-Stoclt Gom- pamies Act; 1856." By sect. 176 this act is made to apply to such Com- panies, and in the same manner, in the case of a limited Company, as if it had been formed and registered under this act as a Company limited by shares, and in case of a Company not hmited, as if it had been formed and registered as an unlimited Company under this act. 176. Subject as hereinafter mentioned, this act, with the exception of Table (A.) in the first schedule, shall apply to Companies formed and registered under the said Joint-Stock Companies Acts, or any of them, in the same manner in the case of a limited Company as if such Company had been formed and registered under this act as a Company limited by shares, and in the case of a Company other than a limited Company as if such Company had been formed and registered as an unlimited Company under this act, with this qualification, that wherever reference is made expressly or impliedly to the date of registration, such date shall be deemed to refer to the date at which such Companies were respectively registered under the said Joint-Stock Companies Acts or any of them, and the power of altering regulations by special resolution given by this act shall, ia the case of any Company formed and registered under the said Joint-Stock Companies Acts or any of them, extend to altering any provisions contained in the table marked B. annexed to " The Joint-Stock Companies Act, 1856," and shall also in the case of an unlimited Com- pany formed and registered as last aforesaid extend to altering any regulations relating to the amount of capital or its distribution into shares, notwithstanding such regulations are contained in the Memo- randum of Association. III. Banking Companies. Existing Banking Companies may register with or with- out limited liability. But if with limited liability, at least thirty days before obtaining the certificate of registration a notice of the intention so to register must be given to every person a;nd partnership firm having a banking account with the Corapany, either by delivery of the notice to such, person viii Law and Practice of or firm, or by leaving it at his or its place of address, or addressing it by the post' to Bucb place of address, ihe consequence of failure to give sucb notice to its customers will be that the protection of limited HabUity as respects such customer will have no effect : (sect. 188.) It is also enacted, by sect. 182, that no Bankmg Company claiming to issue notes in the United Kingdom shall te en- titled to limited liability in respect of such issue, but shall continue subject to unlimited liability in respect thereof, and if necessary, the assets shall be marshalled for the benefit of the general creditors, and the members shall be liable for the whole amount of the issue, in addition to the sum for which they would be liable as members of a limited Company. rV. OompoMies established by Act of Parliament, Letters Patent, or Royal Ghanier. Sect. 179 enacts — 1st. That no Company having the liability of its members limited by act of Parliament or letters patent, and not being a Joint-stock Company as thereinafter defined, shall register under the general provisions of the act, although it may do so merely for the purpose of being wound-up under the provisions of sect. 199 and following sections. And. the definition of a Joint-stock Company here re- ferred to is found in sect. 181, and runs thus : — " A Joint- stock Company shall be deemed to be a Company having a permanent paid-up or nominal capital of fixed amount, divided into shares, also of fixed amount, or held and trans- ferable as stock, or divided and held partly in one way and partly in the other, and formed on the principle of having for its members the holders of shares in such capital, or the holders of such stock, and no other persons." 2nd. No existing Company having the liability of its members limited by act of ParUament or by letters patent shall register under this act (except for the purpose of being wound-up), as an unlimiicd Company, or as a Company limited by guarantee : (sect. 197.) This applies to Companies ah-eady having their liability limited by private act of Parliament or by letters patent, by which that liability is defined. But it will be observed that the restriction is not general ; such a Company is prohibited only from registering under this act as an unlimited Com- pany, or as a Company hniited by guarantee. It is not Joint-Stock Companies. is forbidden to register as a limited Company, nor is there any provision that the Company shall adopt the same limit of liability as is given to it by its act of Parliament or letters patent. There appears to be no obstacle to registration under this act with any limitation of liability the Company pleases, and thus defeating the provisions of its own con- stitution in that respect. Probably it was not designed that such a power shovdd be given to Railway Companies, for instance ; but we can find nothing that can be construed to restrain it. 3rd. No Company not a Joint-stock Company (as above defined) may register under this act as a Company limited hy shares: (sect. 179.) But may not such a Company register as a Company limited hy guara/ntee, defined by sect. 9 to be "a Company formed on the principle of having the HabiUty of its members limited to such amount as the members respectively under- take to contribute to the assets of the Company in the event of the same being wound-up,''' a definition that does not necessarily imply that such a Company shall be formed by shares. On the contrary, it was probably designed for Companies not so formed, or rather for private partnerships, and it appears to us that any existing Company or partner- ship of seven or more partners may, notwithstanding the above prohibition to register as a Company limited by shares, register and obtain all the privileges and immunities of this act as a Company Umited by guarantee. V. Insurance Oom/panies, Hitherto Insurance Companies have been expressly ex- cepted from the privilege of limited liability. That great immunity from obligation to repay the premiums they may receive is now extended to them, and it wiU be competent, not only for all future Insurance Companies to be formed with hmited liability, but for aU existing Insurance Com- panies to register themselves under this act and take to themselves the privilege of hmitiag their own liability. But, unless it is intended to adopt limited liabihty or liability limited by guarantee, there is no need for an exist- ing Insurance Company to register under this act, if it be a Company already registered under the former Joint- Stock Companies Acts, for sect. 176 enacts that this act "shall apply to Companies formed and registered under the said X Law cmd Practice of Joint-Stock Companies ActSj or any of them, in the same manner in the case of a limited Company as if such Com- pany had been formed and registered under this act as a Company Hmited by shares, and in the case of a Company other than a limited Company as if such Company had been formed and registered as an unlimited Company under this act." What ExiSTnia Companies mat ebgistee. The practical result of these provisions appears to be — 1st. That no existing Company formed by act of Parlia- ment or letters patent, by which its habihty is limited, n-ot being a Joint-stock Gompa/ny, can register under this act. 2nd. That an existing Joint-stock Company, although so formed, and having its liability so limited, may register under this act, though not as an unlimited Company, or as a Com- pany Umited by guarantee ; but there appears to be no good reason why it should not register as a limited Company, setting its own limit of hability, without reference to the limit provided by its private act or letters patent. 3rd. An existing Company, not being a Joint-stock Com- pany, may register as a Company limited by shares. But it is not prohibited from registering as a Company Hmited by guarantee, so that the object can be obtained quite as effec- tually. 4th. Existing Banking Companies may register with limited HabiHty, or as a Company limited by guarantee. 5th. Existing Insurance Companies must register, and mcM/ do so with limited hability, or as a Company Hmited by guarantee. Lantly, all existing Joint-stock Companies, that is to say, all Companies "having a permanent paid-up or nominal capital of fixed amount, divided into shares, also of fixed amount, or held and transferable as stock, or divided and held partly in one way and partly in the other, and formed on the principle of having for its members the holders of shares in such capital, or the holders of such stock, and no other persons" (sect. 181) will henceforth come under the provisions of this act. Except — 1. Companies formed by act of Parliament. 2. Companies formed by letters patent. Joint-Stoolc Companies. XI 3. Companies engaged in mining witHin the jurisdiction of tlie Stannaries. And any of these may, subject to the foregoing exceptions, and on the conditions above stated, and on compliance with the provisions subsequently set forth, register under this act, either as an unlimited Company, or a Company limited by shares, or as a Company Hmited by guarantee. What is to be done by existing Companies foe the Purpose oe Registration. The existing Joint-stock Companies who register under this act must, in the first place, deliver to the registrar the following documents :-^ (1.) A list showing the names, addresses, and occupations of all per- sons who on a day named in such Ust, and not being more than six clear days before the day of registration, were members of such Company, with the addition of the shares held by such persons respectively, distinguishing, in cases where such shares are numbered, each share by its number : (2.) A copy of any act of Parliament, royal charter, letters patent, deed of settlement, contract of copartnery, cost-book regula- tions, or other instrument constituting or regulating the Com- pany: (3.) If any such Joint-stock Company is intended to be registered as a limited Company, the above list and copy shall be accompanied by a statement specifying the following particulars ; that is to say. The nominal capital of the Company and the number of shares into which it is divided: The number of shares taken and the amount paid on each share: The name of the Company, with the addition of the word "limited " as the last word thereof : With the addition, in the case of a Company intended to be registered as a Company limited by guarantee, of the reso- lution declaring the amount of the guarantee. And a Company not being a Joint-stock Company regis- tering under this act must deliver to the registrar a list, showing the names, addresses, and occupations of the directors, or other managers of the Company ; also a copy of any act of Parliament, letters patent, deed of settlement, contract of copartnery, cost-book regulations, or other in- strument constituting or regulating the Company, with the addition, in the case of a Company to be limited by gua- rantee, of the resolution declaring the amount of guarantee : (sect. 184.) xu Lcm and Practice of If the whole or any part of the capital of such a Company has been converted into stock, there must be given to the registrar, instead of a statement of shares, a statement ot the amount of stock, and the names of the persons who were holders of it, on some day to be then named, not bemg more than six clear days before the day of registration : (sect. 185.) . . ^ , -, 1 ^• And all these documents are to be yenfied by a declaration of the directors, or any two of them, or any two other prin- cipal officers of the Company : (sect. 186.) The registrar may require evidence to satisfy himself if the Company seeking registration is a Joint-stock Company : (sect. 187.) No fees are to be charged for such registration by an existing Company unless it changes its character, and, having been before unlimited, registers as a hmited Company oi otherwise : (sect. 189.) If it is desired to register with limited liability, the Com- pany is empowered to change its name for that purpose by the addition of the word "limited" to that name: (sect, 189.) On these conditions being complied with, the Company is to have a certificate of registration under this act, which is to be conclusive evidence that all has been rightly done, th€ requisitions for registration compKed with, and that the Company is authorised to be so registered as a limited oi unlimited Company, as the case may be, and the date oi incorporation mentioned in the certificate is to be deemed the date at which the Company was incorporated imder this act : (sects. 191, 192.) The property of the Company, real and personal, including obligations and things in action belonging to or vested ir the Company at the date of its registration under this act are to be thereby transferred to the new incorporation fo] all the estate and interest of the Company therein (sect. 192) But it is expressly provided, by sect. 94, that registratioi under this act is not to affect obligations, debts, or contracts previously incurred; all pending actions, suits and lega proceedings commenced against the Company, or the publi( officer, or any member thereof, may be continued as before and as if this registration had not taken place. But ther( is this important further provision, that, after registration execution is not tp issue against any individual member o the Company for judgment previously obtained against th( Joint-Stock Companies. xiii Company ; but if tHere is no property of the Company that can be taken sufficient to satisfy such, judgment, an order is to be had for winding it up : (sect. 195.) When a Company is so registered, all the provisions con- tained in any act of Parliament, deed of settlement, contract of copartnery, cost-book regulations, letters patent, or other instrument constituting or regulating the Company, are to be deemed to be its conditions and regulations, in the same manner and with the same iacidents as if they were contained in a registered Memorandum and Articles of Association, and all the provisions of this act are to apply to the Company, its members and contributories, and all dealing with it, in the same manner in all respects as if it had been formed under this act, subject to the following provisions : (sect. 196.) (1.) That Table (A.) in the first schedule to this act shall not, unless adopted by special resolution, apply to any Company registered under this act in pursuance of this part thereof : (2.) That the provisions of this act relating to the numbering of shares shall not apply to any Joint-stock Company whose shares are not nimibered : (3.) That no Company shall hare power to alter any provision con- tained in any act of Parliament relating to the Company : (4.) That no Company shall have power, without the sanction of the Board of Trade, to alter any provision contained in any letters patent relating to the Company : (5.) Tliat in the event of the Company being woimd-up, every person shall be a contributory, in respect of the debts and liabilities of the Company contracted prior to registration, who is hable, at law or in equity, to pay or contribute to the payment of any debt or liability of the Company contracted prior to registration, or to pay or contribute to the payment of any simi for the adjustment of the rights of the members amongst themselves in respect of any such debt or liability ; or to pay or contribute to the payment of the costs, charges, and expenses of winding-up the Company, so far as relates to such debts or liabilities as aforesaid ; and every such contributory shall be liable to con- tribute to the assets of the Company, in the course of the wind- ing-up, all sums due from him in respect of any such liabihty as aforesaid ; and in the event of the death, bankruptcy, or insol- vency of any such contributory as last aforesaid, or marriage of any such contributory being a female, the provisions hereinbefore contained with respect to the representatives, heirs, and devisees of deceased contributories, and with reference to the assignees of bankrupt or insolvent contributories, and to the husbands of married contributories, shall apply : (6.) That nothing herein contained shall authorise any Company to alter any such provisions contained in any deed of settlement, contract of copartnery, cost-book regulations, letters patent, or other instrument constituting or regulating the Company, as xiv Law and Practice of would, if such Company had originally been formed mider this a«t, havi been contained in the Memorandmn of Association, and are not autho rised to be altered by this act. But these provisions are not to derogate from any powei of altering its constitution or regulations whicli may b( vested in sucli Company by virtue of the act of Parliament deed of settlement, or other instrument constituting anc regulating it : (sect. 196.) But no existing Company, not required by the act tc register under this provision, is to do so without the assent o: a majority of such of its members as may be personallj or by proxy present at a general meeting called for th( purpose. And if a Company, not having the liability of its memben limited by acts of Parliament or letters patent, is about tc register as a Hmited Company, that majority must consist ol not less than three-fourths of the members present personallj or by proxy: (sect. 179.) And if it is intended to register as a Company limited bj guarantee, such assent is to be accompanied by a resolutioi declaring that each member undertakes to contribute to the assets of the Company, in the event of the same being wound-up during the time that he is a member, or withii one year afterwards, for payment of the debts and liabilities of the Company, contracted before the time at which h( ceased to be a member, and for the costs and expenses o: winding-up the Company, such amount as may be required not exceeding a specified amount: (sect. 179.) What new Companies mat be foemed under the NEW Law. The Act of 1856 introduced another novelty into the lav of Joint-stock Companies. Formerly the law was limited to associations for thi purposes of profit ; in fact to persons engaged in manufac tures or commerce. The Joint- Stock Companies Eegis tration Act and the Limited Liability Act were expressl; restricted to Companies formed for a commercial purpos' or a purpose of profit. By the Act of 1856, any seven persons, associated for aw lawful 'piiriiuae, were empowered to form themselves into ai incorporated Company, and obtain the privilege of limite liability. All associations of seven or more persons, whatever thei Joint-Stock Compames^ xv object, commercialj political, religious, or philanthropic, provided only it be a lawful object, can now become a cor- poration and secure the great privileges and immunities granted by the law. AU partnerships of more than twenty persons, carrying on any trade or business having gain for its object must be registered as a Company under this act, unless authorised by act of Parliament, by royal charter, or by letters patent, or imless engaged in working mines within the jurisdiction of the Stannaries. And all associations of seven or more persons for any lawful purpose whatever may be so registered. But although the law nominally apphes only to . partner- ships of seven or more persons, it is fortunately capable of being extended to a very much larger circle, thus prevent- ing the ruin it threatens to individual traders, if no means could be devised for making them participators in its privi- leges. Happily, an easy plan presents itself for accomplishing this. We wiU endeavour to show How AN Individual Teadee mat avail himself of Limited Liability. It is justly complained of the existing law of Hmited liability, that it gives to seven persons trading together a privilege which it denies to individual traders ; and that it will be difficult, if not impossible, for individuals hable to pay their debts and perform their contracts to compete on even terms with rivals released from the liability to pay the one or perform the other. This is so manifest that it is important to see if any plan can be devised by which mdividual traders might obtain for themselves the privilege of limited liability. The following has been found sufficient for the purpose. The plan is based upon the peculiar feature of the new law, which does not require any certain number or amount of shares,, nor the subscription of any number of the shares, nor of any portion of the capital, as a preliminary to in- corporation and the commencement of business. Bearing in mind this state of the law, let it be supposed that a trader, say, a draper or a grocer, desires to secure the privilege of hmited hability, and so to fight on even terms with his seven associated rivals having the privilege to trade without responsibility for their debts and contracts. He xvi Lami a/nd Practice of can do so, in effect, thus :— Let Wm convert his businesi into a limited liability Company, with so much capital as h( is willing to stake, say lOOOL, in 1000 shares of H. each As the Company must consist of seven persons at the least he has but to give one share of IZ. to each of his childrei (if of age), brothers or sisters, parents or serva,nts, anc keep the remaining 994 shares himself, and so he wiU obtaii the advantages of incorporation, and the privilege of noi being liable for any of his debts or contraxjts beyond th( 994Z., or whatever the sum might be at which he has fixec his own liabihty ; and if this is paid up, or registered as paid he has no liability at all. It is not even necessary that he should take up all the remaining shares. If he desires further to restrict hif liability, he has only to take a portion of them. In like manner, traders in difficulties wiU easily save themselves from the personal inconvenience of bankrnptcj or insolvency, by immediately converting their business intc limited liability Companies; for thus they escape persona responsibility, and their new creditors will have no remedj but against the assets of the business — the other propertj they possess will not be Mable. A man may be worth half a miUion, and commence i business with limited hability, and the creditors of thai business will have no remedy against him or his othei property, but only against tie assets of the particulai business, which may be nil. And if individual traders may thus easily avail themselves of the privilege of limited liability to avoid the payment ol their debts and performance of theu- contracts, so maj ordinary partnerships do the like in the like manner. If il is a great boon to a man trading alone, it is a stiU greatei boon to men trading together, because the law wiU thus protect them, not merely against the consequences of theii own acts, but against the consequences of the acts of one another. The process is equally simple, and performed precisely in the same manner. How A Partnership may avail itself of the Privilege OP Limited Liability. Convert the partnership into a Company. If there be fewer than seven partners, name a capital, according to con veiiioncc or fancy, for there is no need that it should be paid Joini-Stock Gonvpanies. xvii or even subscribed ; divide it into a number of small shares ; give one share to each of so many relatives or dependents as may be required to make the seven, on whom the act confers incorporation; let the existing partners divide among the members the rest of the shares, or any part of them, in the same proportion as their present interest in the concern. Then they will become an incorporated Company, of right, without any further liability whatever (for the amount of the shares they hold will be paid up), and whatever befalls the business, they are personally secured ; they can lose nothing ; their private property is safe ; they are exempt from bank- ruptcy. If the business prospers, they will pocket all its profits ; if it should fail, the loss will fall not upon them, but upon their creditors. With the advantages given by this law, there is no reason why any trader should become bankrupt, seeing that it is in his power so easily to protect himself against that contin- gency by converting his business into a limited liability Company, in the manner above described. Another feature of this law is the omission of any require- ment for the filing of the balance-sheet with the registrar, or for access to it, by the creditors or the pubHe. Formerly this was enforced. Now, the state of the afiairs of the Company may be effectually concealed, and the advantage of this to individuals constituting themselves a corporation is obvious. The following is a list of some of the applications of the new law : its immunities and privileges may be secured by Individual Traders. Trading Partnerships with any number of Partners. Banks. Insurance Companies. ReHgious Societies. Literary Societies. Benevolent Institutions. Freehold Land Societies. Political Societies. Clubs. Social Societies. So numerous and various being the Companies and asso- ciations which may be incorporated under the new law, it may be convenient to state generally what should be the scheme for getting up a trading Company before we proceed to describe how it should be formed. xviii liOAU mid Practice of The Scheme op a Company. There is now no necessity for any capital wliateve to be paid up. A Company may begin busines with 101. If it prospers and pays^ the speculators rea] the gain ; if it fails, the promoters, having nothing to lose and being subject to no inconvenience whatever, leave thi loss to their creditors. But, although it is not necessar; that any portion of the capital shall be actually paid, it wil be the most prudent course to require the full amount of thi share to be paid up as soon as possible after business hai begun. There is an obvious reason for this. Until thi whole share is paid up, a liability remains for the portioi unpaid, which will subject the shareholder to the claims o creditors to the extent of that balance, and probably to con siderable costs also; for the statute expressly enacts tha the shareholder is to be liable for the costs of proceeding: taken to recover any balance due on his shares. If, there fore, a shareholder has paid up only ten shillings in th( pound, and a creditor obtains judgment, and then comei upon the shareholder, as he could and would do, for th( unpaid balance of his share, he might recover, not only thi sum due on the shares, but also all the costs of the process Perfect immunity can, indeed, be obtained only by payins up the full amount of the share, and this wiU leave th( directors free to specvilate to any extent, with absolut( security to their shareholders, and thus to promote mos effectually the interest of the shareholders, which has beoi shown to consist in staking their limited risk of loss agains an unlimited chance of gain, without the caution requisite ii trading, where the risks both of gain and loss are equal. I is the peculiar advantage of limited HabiHty that it exempt; those who enjoy its privileges from the caution to whicl individual traders are compelled whose liability is withou limit. Bold speculation is the wiccsf course in such a case and therefore whatever permits the dii-ectors to speculate freely, with no consequences to fear, is the most pruden plan to be adopted in the formation of a limited Company Nothing can be more conducive to this than paid-up shares discharging the shareholders from all further liability. Eve: if the entire of the money be not required, it should be al paid ; and there are divers ways in which it may be sen back again, if not wanted for the business, as in dividends bonuses, purchases of property, and so forth. Joiiit-Stoch CompaTvies. xix Under this law, this plan of paid-up shares is rendered perfectly practicable in all cases by the removal of the restriction which gave limited liability only to shares of not less than lOL The shares in a limited Company may be of any amount, however small, and it would be prudent to make them very small, in order that they may be paid up without inconvenience. It is also important to bear in mind, when drawing up the scheme of a Company with limited liability, that it is no longer necessary for any fixed number of shares to be sub- scribed before it can be iacorporated. According to the old law, a considerable portion of the shares were required to be subscribed before a certificate of complete registration could be obtained. It is not so now. One share of five shillings, or less, taken by each of the seven promoters will be sufficient, whatever the nominal amount of the capital. Hence no caution is now needed, in drawing the scheme of a Company, for limitation of the capital to be announced. It may be as well appointed at 100,000L as at lOOOL; for even if no more than the seven shares should ever be taken, the Company will enjoy the credit of the 100,000Z., which is its intended capital. A large capital looks better in adver- tisements, and inspires greater confidence. The surplus shares can remain to be taken up at any time thereafter, if the speculation succeeds, and if it should fail, no harm can possibly come of it to those who are already shareholders. It is also necessary to premise that all the preliminary proceedings formerly required to be taken are now swept away. Provisional registration is abolished, and with it all the prohibitions against announcing the prospectus of a projected Company until it is registered. The present law takes no cognisance whatever of a Company until it is brought to the registrar to receive the certificate of incor- poration. You may do anything with it you o please as a preliminary process. The plan may be made public, and shareholders invited, in any manner and on any terms, and it is not until the Memorandum of Association is signed that anything is to be done in pursuance of the statute. Bearing in mind this great change in. the law, and its con- sequences as affecting the manner of getting up a Company, we will now offer such hints as experience has suggested for the most efficient performance of this important stage in the career of a Joint-stock Company ; for in this, as in many other affairs, the ultimate success often depends upon the c2 XX Law and Practice of prudence, witli which the first step is taken. Perhaps, ther fore, the reader may be not unwilling to receive son practical hints — How TO GET UP A CoMPANY. Formerly, the first step was to give a, title to your Con pany, define its object, register it provisionally, and the: and not before, to publish the prospectus of it. But now the better course will be to form your Compari first, and then to bring it before the public. For the fo: mation of a Company, nothing more is necessary than ft seven persons to subscribe a Memorandum of Associatioi stating the title, objects, locality, amount of proposed capita and the number of shares into which it is to be divided, an consenting each to take one share. Forthwith — ^withoi subscription of the capital, with no more than the seve shares subscribed, and without one farthing paid up- the scheme will be absolutely entitled to be incorporate! with all the privileges and personal immunities of a coj poration. Hence the most prudent course will be to form the Con pany before you pubUsh it. CONSTITtJTION OF A CoMPANT. Any seven or more persons may form an incorporate Company. This they may do on either of the followin plans : — I. With a capital divided into shares of a fixed amoun with liability limited to the amount, if any, unpai on the shares. II. Without a specified capital or shares, and the liabUit limited to such amount as the members may respec tively undertake to contribute to the assets of tt Company, in case of its being wound-up, caUe by the act, a Company limited by guarantee. III. With a capital divided into shares of a fixed amouB without limitation of liability. It will be necessary to determine at the outset which ( these plans shall be adopted, for the Memorandum of Assc ciation must be framed accordingly. The first consideration will be, whether the Compan Joint-Stock Ootrvpanies. xxi shall be constituted by way of shares or by way of gua- rantee. A Joint-stock Company by shares is too well known to need elaborate description. It is formed by a definite and declared capital, divided into shares of a definite and declared amount, wkLcli shares ai-e transferable by any holder without the consent of the other partners. This is the only form of a trading Company hitherto known to the law. But the present act has introduced a new one, of more than questionable propriety, as opening a wide field for fraud, to which it has given the name of " a Company limited by guarantee." Being a perfect novelty in our commercial legislation, it will be convenient to attempt a short explanation of its meaning. A Company formed of shares states, in the Memorandum of Association, the amount of the proposed capital and the number and value of the shares. But a Company formed by guarantee states nothing of its capital, actual or proposed, but only that the persons forming it agree to hold themselves liable to contribute to the assets of the Company, in the event of its being wound-up, a specified amount and no more. The practical efiect, and probably the design, of this gro- vision, is to enable wealthy persons to speculate in trade, pocketing the profits, if the business succeeds, and avoiding the losses, if it fails. It is an ingenious contrivance for the further encouragement of roguery, by indefinite exten- sion of the too large protection it enjoys already. Thus, if B. desires to speculate without risk of loss, he needs but to form a Company " limited by guarantee," composed of himself, children, clerks or servants, to the number of seven, each of whom subscribes the Memoran- dum of Association, declaring himself liable to the amount of 11. if the Company be wound-up. B. begins the business, which is thus, in fact, his own ; if it prospers, he pockets the gain ; if it fails, as soon as he has withdrawn as much of his capital as he can convert, he causes it to be wound-up, ■ and all that he is then liable to pay, even though thousands of pounds may be due to creditors, is the seven pounds he and his satellites have engaged by the Memorandum of Associa- tion to contribute towards the winding-up of his own business. Many other similar uses, or abuses, to which this novelty in English law is capable of being applied will present themselves at a glance to the experienced reader. XXll Law a/nd Practice of Nevertheless, it is tlie law, and, being saeli, it will be opei to any person to avail bimself of it without reproach. POEMATION OP A COMPANY. Having determined on which of the four classes the Com pany shall be constituted, the next proceeding is to draw uj the Memorandum of Association. The form of this document varies with each of the fou] varieties in the constitution of a Company ; as it is to b( limited by shares, or limited by guarantee, or unlimited They are as follow : — FORM A. Memorandum of Association of a Company limited by Shares. 1st. The name of the Company is "The Eastern Steam Packet Com pany Limited." 2nd. The registered office of the Company wiH be situate in Eng- land. 3rd. The objects for which the Company is established are, "tht conveyance of passengers and goods in ships or boats between sacl places as the Company may from time to time determine, and the doin| all such other things as are incidental or conducive to the attainment ol the above object." 4th. The liability of the members is limited. 5th. The capital of the Company is two hundred thousand pounds divided into one thousand shares of two hundred pounds each. We, the several persons whose names and addresses are subscribed, an desirous of being formed into a Company, in pursuance of this Memorandum of Association, and we respectively agree to take th( number of shares ia the capital of the Company set opposite oui respective names. Names, Addresses, and Descriptioiis of Subscribers. 1. John Jones, of 2. John Smith, of 3. Thomas Green, of 4. John Thompson, of 6. Caleb AVIiito, of 6. Andrew Brown, of 7. Csesar White, of in the county of , merchant, , in the county of , in the county of , in the coimty of , in the coimty of , in the coimty of , in the county of Total shares taken Number of Shares takei by each Subscriber. 200 25 30 40 15 5 10 325 Dated the 22nd day of November, 1861. Witness to tlio above si^natm-es, X.U. No. IS, Iluto-street, Clerkenwell, Middlesex. Joint-Stock Oom/panies. Xxiii FORM B. Memouandum of Association of a Company limited by Guarantee, and not having a Capital divided into Shaies. Memorandum of Association. 1st. The name of the Company is "The Mutual London Marine Association Limited." 2nd. The registered office of the Company will be situate in Eng- land. 3rd. The objects for which the Company is established are " the mutual insurance of ships belonging to members of the Company, and the doing all such other things as are incidental or conducive to the attainment of the above objects." 4:th. Every member of the Company undertakes to contribute to the assets of the Company in the event of the same being wound-up during the time that he is a member, or within one year afterwards, for payment of the debts and liabilities of the Company contracted before the time at which he ceases to be a member, and the costs, charges, and expenses of winding-up the same, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required not exceeding teii pounds. We, the several persons whose names and addresses are subscribed, are desirous of being formed into a Company, in pursuance of this Memorandum of Association. Names, Addresses, and Descriptions of Subscribers. 1. John Jones, of , in the county of , merchant. 2. John Smith, of , in the county of 3. Thomas Green, of , in the county of 4. John Thompson, of , in the county of 5. Caleb White, of , in the county of 6. Andrew Brown, of , in the coimty of 7. Csesar White, of , in the county of Dated the 22nd day of November, 1861. Witness to the above signatures, A.B., No. 13, Hute-street, ClerkenweU, Middlesex. FORM C. Memorandum of Association of a Company limited by Guarantee, and having a Capital divided into Shares. Memorandum of Association. lat. The name of the Company is "The Highland Hotel Company Limited." 2nd. The registered office of the Company will be situate in Scotland. 3rd. The objects for which the Company is established are "the facilitating traveUing in the Highlands of Scotland, by providing hotels and conveyances by sea and by land for the accommodation of travellers, xxiv Law and Practice of and the doing all such other things as are incidental or conducive to thi attainment of the above object." 4th. Every member of the Company undertakes to contribute to th assets of the Company in the event of the same being wound-up dunnj the time that he is a member, or within one year afterwards, for pay ment of the debts and Uabilities of the Company contracted before th time at which he ceases to be a member, and the costs, charges, an< expenses of winding-up the same, and for the adjustment of the rights o the contributories amongst themselves, such amount as may be requirec not exceeding twenty pounds. We, the several persons whose names and addresses are subscribed, ar desirous of being formed into a Company, in pursuance of tlu Memorandum of Association. Names, Addresses, and Descriptions of Snhecribers. (See above form.') FORM D. Memorandum of Assocution of an Unlimited Company, having a Capita divided into Shares. Memorandum o/ Association. 1st. The name of the Company is "The Patent Stereotype Com pany." 2nd. The registered office of the Company will be situate in England 3rd. The objects for which the Company is established are " th working of a patent method of founding and casting stereotype plates, c which method John Smith of London is the sole patentee." We, the several persons whose names are subscribed, are desirous c being formed into a Company, in pursuance of this Memorandum c Association. Names, Addresses, and Descriptions of Subscribers. (See above form.) This document must be signed by seven, at least, of th shareholders or partners, and the signature of each must b attested by a witness. Although the schedule sets forth a form to be adopted, i may be " as near thei-eto as circumstances admit." It is t contain the following particulars : — 1. The vaine of the proposed Company. [t was decided in Reg. v. Whit marsh (1 Q. B. 803), that Company cannot be registered by the title of " corporation, and that decision docs not appear to be affected by this ac Joint-Stock Companies. xxv But there is no objection to calling it " society " or associa- tion," or any similar term. If it is intended to enjoy the privilege of limited liability, the word " Limited " must be a part of the title. It should not be a mere addition, intro- duced parenthetically, but should form a portion of the name, written and printed in the same letters ; as thus, " The Grocery Com/pany Lim/ited." The act forbids the adoption by any Company of " a name identical with that by which a subsisting Company is already registered, or so nearly resembling the same as to be calcu- lated to deceive : except where such subsisting Company is in the course of being dissolved, and testifies its consent in such manner as the registrar may require." If, by inad- vertence, such a name should be registered, the Company, with the consent of the registrar, may change its name, and the new name may be registered in the place of the former name : (sect. 20.) 2. It must state "the part of the United Kingdom, whether England, Scotland, or Ireland, in which the regis- tered office of the Company is to be established." At this stage, therefore, it is not necessary to determine more as to the locality of the Company than in which of the three kingdoms it is to be established. The actual site of the chief office need not be appointed until the Company proceeds to business. 3. It must state "the objects for which the proposed Com- pany is to be estabhshed." This wiU require some deliberation, and much care in the definition ; for the Company will be incorporated for the purposes only that are stated in the Memorandum of Asso- ciation. To those objects it will be strictly limited. To pursue any other objects than these will be illegal, and the managers certainly, and probably the Company, would lose all the protection of the act in respect of any transactions not properly within the purposes for which the Company is incorporated. 4. It must state whether the liability is to be limited or unlimited. So great are the advantages of limited liability, that there can be no hesitation in preferring it. No Company is now formed upon any other principle. xxvi Law and Practice of 5. It must state tte amount of the nominal capital of the proposed Company. Observe^ that it is the nominal capital only that is to b« stated; that is to say, the capital which the promoters maj consider as Hkely to be most attractive. As the act does not require any portion of that capital to be paid, and only seven shares to be taken in it, there is no reasor for limiting its amount. It is as easy, and as lawful, to fts it at a million as at ten thousand pounds, and the larger the sum the more imposing the appearance of the Company in prospectuses and advertisements, and the more readily will it obtain credit and confidence. No possible evil or incon- venience can arise from appointing the nominal capital at a good round sum ; for the liability is not, as is couimonlj supposed, Hmited to the nominal capital, but to the shares held by each shareholder. For instance : if a Company is formed with a nominal capital of 100,000?., in 100,000 shares of 11. each, the liability does not extend to 100,OOOZ., bui only to so many \l. shares as maybe subscribed; and as only seven of these are necessary to the formation and incor- poration of the Company, it results that a Company may announce a nominal capital of 100,000Z. while having only 11. actually subscribed and paid, and its liability will be limited to 11. This peculiarity of the new law should be borne in mind when forming a limited liability Company, for it aflfords a facility for beginniag business without waiting for capital that was impracticable under the old law, which required a certain portion of the capital to be subscribed and paid before the Company could be formed. 6. It must state, also, " the number of shares into which such capital is to be divided, and the amount ofeach share." The new law does not prescribe any limit of division oi shares. Formerly the shares could not be less than lOZ. ; now, they may be of any amount the promoters please. There are obvious advantages in making them of small amount. Foremost of these is the complete exemption from future liability, which may be thus secured. If the full amount of the shares be paid up, the shareholder becomes absolutely freed from any further claim or liability of any kind. He neuds not to trouble himself again about the proceedings of the Company. He can allow the managers to speciilato to any extent, inasmuch as he will share the Joint-Stock Companies. xxvii profits of success without being liable for any of the loss attendant upon failure. If you are a trader desirous of availing yourself of the privilege of limited Habilityj in the manner already de- scribedj it will be important for you to appoint the shares at a small sum, for the purpose of keeping the business sub- stantially in your own hands. Shares of five or ten shillings would suffice in such case. But for a Joint-stock Company on a large scale it would not be prudent to appoint the shares at less than bl., because the cost of working the machine is so great. It is presumed that the seven persons who sign the Memorandum of Association must be of full age, and not under incapacity to contract ; they must not be children under twenty-one, nor married women, nor lunatics. Bach must take one share at least, and the number of shares taken by each must be set against his name in the Memorandum of Association. The Memorandum of Association may or may not have Articles of Association annexed thereto or endorsed thereon. When forming the Company, it will be necessary to deter- mine what shall be done as to this. A table appended to the act (B.) presents a series of regulations for the government of a Company. But these are not compulsory. It is enacted only, that if no other regulations are provided by the Articles of Association, and so far as the regulations in the table are not altered or repealed by the Articles of Association, they shall be taken to be the regulations of the Company: (sects. 9, 10.) Hence, either of the following courses may be adopted : — 1st. You may be content with the Memorandum of Asso- ciation alone, in which case the regulations in the table will be the regulations of the Company. Or, 2nd. You may annex to the Memorandum of Association such Articles of Association as you may desire, in which case the articles and such of the regulations in the table as are not repealed or altered by them, or are not inconsistent with them, will form together the regulations of the Com- pany. Or, 3rd. You may annex to the Memorandum of Association Articles of Association embodying all such of the regulations in Table (B.) as you do not desire to repeal or alter, adding such others as you may require, and thus the Company will xxviii Law and Practice of possess a code of regulations complete in itself, without having to refer from the Articles of Association to the table to determine how they are affected by the regulations of Table (B.) and vice versa. We would strongly recommend that this latter course be pursued in the formation of a Company. It will require some care, and the assistance of a lawyer should be engaged for the doing of it. But no deed of settlement will now be necessary. A lawyer, who is a man of experience in the business of the world, whether solicitor or counsel, will be the best adviser in the preparation of Articles of Association, for they are to form the code by which the Company is to be governed. It should be observed, also, that none of the restrictions of the old law with respect to the nature of the regulations are preserved in the present law. The promoters may make any regulations or any terms they please by the Articles of Association, and these will be absolutely binding upon the Company. They may put any price upon their own com- modities, secure for themselves any amount of salary, make themselves managers, or fill their owu pockets as fiill as they please without the slightest restraint. The professed principle of the present law is absolute liberty for speculators, debtors, and swindlers. Forms of Articles of Association to be used where the regulations of Table (B.) are intended to be adopted as the code of the Company are given in the schedule to the act ; but we repeat our recommendation to frame a complete series of regulations, adapted to the requirements of the particular Company, expressly to exclude the table. The following is the form given by the act : — Articles of Association to accoiiijiaiiy Memorandum of Association of a Company limited by Guarantee and not having a Capital divided into Shares. 1. The Company, for the purpose of registration, is declared to consist of five hundred members. 2. The directors hereinafter mentioned may, whenever the business of the association requires it, register an increase of members. Definition of Members. 3. Every person shall be deemed to have agreed to become a member of the Company who insiures any ship or share in a ship in pur- suance of the regulations hereinafter contained. Joint-Stock Oom/panies. xxix General Meetings. 4. The first general meeting shall be held at such time, not being more than three months after the incorporation of the Company, and at such place as the directors may determine. 5. Subsequent general meetings shall be held at such time and place as may be prescribed by the Company in general meeting ; and if ho other time or place is prescribed, a general meeting shall be held on the first Monday in February in every year, at such place as may be determined by the directors. 6. The above-mentioned general meetings shall be called ordinary meetings; and all other general meetings shall be called extra- ordinary. 7. The directors may, whenever they think fit, and they shall, upon a requisition made in writing by any five or more members, convene an eirtraordinary general meeting. 8. Any requisition made by the members shall express the object of the meeting proposed to be called, and shall be left at the registered office of the Company. 9. Upon the receipt of such requisition the directors shall forthwith proceed to convene a general meeting : If they do not proceed to convene the same within twenty-one days from the date of the requisition, the requisitionists, or any other five members, may themselves convene a meeting. Proceedings at General Meetings. 10. Seven days' notice at the least, specifying the place, the day, and the hour of meeting, and in case of special business the general nature of such business, shall be given to the members in manner herein- aiter mentioned, or in such other manner, if any, as may be pre- scribed by the Company in general meeting; but the non-receipt of such notice by any member shall not invalidate the proceedings at any general meeting. 11. All business shall be deemed special that is transacted at an extra- ordinary meeting, and all that is transacted at an ordinary meet- ing, with the exception of the consideration of the accoimts, balance sheets, and the ordinary report of the directors. 12. No business shall be transacted at any meeting except the declaration of a dividend, unless a, quorum of members is present at the com- mencement of such business ; and such quorum shall be ascertained as follows ; that is to say, if the members of the Company at the time of the meeting do not exceed ten in number, the quonmi shall be five ; if they exceed ten there shall be added to the above quonmi one for every five additional members up to fifty, and one for every ten additional members after fifty, with this limitation, that no quorum shall in any case exceed thirty. 13. If within one hour from the time appointed for the meeting a quorum of members is not present, the meeting, if convened- upon the requisition of the members, shall be dissolved : In any other case it shall stand adjourned to the same day in the following week at the same time and place ; and if at such adjourned meeting a quorum of members is not present, it shall be adjourned sine die. 14. The chairman (if any) of the directors shall preside as chairman at every general meeting of the Company. XXX Law and Practice of 15. If there is no such chairman, or if at any meeting he is not present at the time of holding the same, the members present shaU choose some one of their number to be chairman of such meeting. 16. The chairman may, with the consent of the meetmg, adjourn any meeting from time to time and from place to place, but no busmess shall be transacted at any adjourned meeting other than the busmess left unfinished at the meeting from which the adjournment took place. 17. At any general meeting, unless a poll is demanded by at least five members, a declaration by the chairman that a resolution has been carried, and an entry to that effect in the book of proceedings of the Company, shall be sufficient evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution. 18. If a poU is demanded in manner aforesaid, the same shall be taken in such manner as the chairman directs, and the result of such poU shall be deemed to be the resolution of the Company in general meetiag. Votes of Members. 19. Every member shall have one vote and no more. 20. If any member is a lunatic or idiot he may vote by his committee, curator bonis, or other legal curator. 21. No member shall be entitled to vote at any meeting unless all moneys due from him to the Company have been paid. 22. Votes may be given either personally or by proxies, A proxy shall be appointed in writing under the hand of the appointer, or if such appointer is a corporation, under its common seal. 23. No person shall be appointed a proxy who is not a member, and the instrument appointing him shall be deposited at the registered office of the Company not less than forty-eight hours before the time of holding the meeting at which he proposes to vote. 24. Any instrument appointing a proxy shall be in the following form : Company Limited. I , of , in the county of , being a member of the Company Limited, hereby appoint of , as my proxy, to vote for me and on my behalf at the [ordinary or extra- ordinary, as the case may be"] general meeting of the Company to be held on the day of , and at any adjournment thoroof to be held on the day of next [or, at any meeting of the Company that may bo held in the year ]. As witness my hand, this day of Signed by the said , in the presence of T>ircctors. 25. The number of the directors, and the names of the first directors, shall- bo. cletevmined by the subscribers of the Memorandum of Association, 2G. Until directors ai-o appomtdl, the subscribers of the Memorandum of Association shall for all the purposes of this act bo deemed to be directors. Joint- Stoclc Gompanicn. xxxi Powers of Directors. 27. The business of the Company shall be managed by the directors, who may exercise all such powers of the Company as are not hereby required to be exercised by the Company in general meeting; but no regulation made by the Company in general meeting shall invalidate any prior act of the directors which would have been valid if such regiilation had not been made. Election of Directors. 28. The directors shall be elected annually by the Company in general meeting. Business of Company. [Here insert Rules as to mode in loMcli business of Insurance is to be conducted.'] Accounts. 29. The accounts of the Company shall be audited by a committee of five members, to be called the audit committee. 30. The first audit committee shall be nominated by the directors out of the body of members. 31. Subsequent audit committees shall be nominated by the members at the ordinary general meeting in each year. 32. The audit committee shall be supplied with a copy of the balance sheet, and it shall be their duty to examine the same with the accounts and vouchers relating thereto. 33. The audit committee shall have a list delivered to them of all books kept by the Company, and they shall at all reasonable times have access to the books and accounts of the Company : they may, at the expense of the Company, employ accountants or other persons to assist them in iavestigating such accounts, and they may in relation to such accoimts examine the directors or any other officer of the Company. 34. The audit committee shall make a report to the members upon the balance sheet and accounts, and in every such report they shall state whether in their opinion the balance sheet is a full and fair balance sheet, containing the particulars required by these regula- tions of the Company, and properly drawn up, so as to exhibit a true and correct view of the state of the Company's affairs, and in case they have called for explanation or information from the directors, whether such explanations or information have been given by the directors, and whether they have been satisfactory, and such report shall be read together with the report of the directors at the ordinary meeting. Notices. 35. A notice may be served by the Company upon any member either personally, or by sending it through the post in a prepaid letter addressed to such member at his registered place of abode. 36. Any notice, if served by post, shall be deemed to have been served at the time when the letter containing the same would be delivered xxxii Law and Practice of in the ordinary conrse of the post ; and in proving such service it shall be sufficient to prove that the letter containing the notice wa^ properly addressed, and put into the post-office. Winding-up. 37. The Company shaU be wound-up voluntarily whenever an extraordi- nary resolution, defined by "The Companies Act, 1862,' is passed requiring the Company to be wound-up voluntarily. Names, Addresses, and Descriptions of Subscribers. 1. John Jones, of , in the county of , merchant. 2. John Smith, of , in the county of 3. Thomas Green, of , in the county of 4. John Thompson, of , in the county of 5. Caleb White, of , in the county of 6. Andrew Brown, of , in the county of 7. Caesar White, of , in the county of Dated the 22nd day of November, 1861. Witness to the above signatures, A.B., No. 13, Hute-street, Clerkenwell, Middlesex. Aeticles of Association to accompany Memorandum of Association of a Company limited by Guarantee, and having a Capital divided intc Shares. 1. The capital of the Compaay shall consist of five hundred thousand pounds, divided into five thousand shares, of one hundred pounds each. 2. The directors may, with the sanction of the Company in general meeting, reduce the amount of shares. 3. The directors may, with the sanction of the Company in general meeting, cancel any shares belonging to the Company. We, the several persons whose names and addresses are subscribed, agree to take the number of shares in the capital of the Company set opposite our respective names. Names, Addresses, and Descriptions of Subscribers. Number of tbares taken by each Subscriber. 1. 2. 3. 4. 5. 6. 7. John Jones, of , in the county of John Smith, of , in the county of Thomas Green, of , in the county of John Thompson, of , in the county of Caleb White, of , in the coimty of Andrew Brown, of , in the county of C«sar White, of , in the county of Total shares taken 200 26 30 40 15 5 10 325 Dated the 22nd day of November, 1861. Witness to the above signatures, A.B., No. 13, Huto-street, Clerkenwell, Middlesex. Joint-Stock Oompanies. xxxiii Articles of Association to accompany the preceding Memorandum q/ Association. Capital of the Company. The capital of the Company is two thousand pounds, divided into twenty shares of one hundred pounds each. [Names, Addresses, and Descriptions of Subscribers, with the number of Shares taken, &c., as in the above form.] The regidations by whicli the Company is to be governed^ if not repealed or altered by the Articles of Association^ will be given ia a subsequent part of this treatise^ when we come to treat of the management of a Company. The Memorandum of Association and the Articles of Asso- ciation (if any) are to be signed by seven shareholders at leastj and the execution of each subscriber attested by one witness. Both documents must be stamped " as if they were deeds," that is to say, each niust have a thirty-five shiOing stamp for the first thirty folios, and a follower for every additional fifteen folios : (sect. 11.) Being signed, the Memorandum of Association, with the Articles of Association annexed, must be taken to the regis- trar, who is then to certify, under his hand, that the Company is incorporated. The fees to be paid to the registrar for registration are thus prescribed by the act : Table B. Table o/Fees to le paid to the Registrar of Joint-Stock Companies iy a Company having a capital divided into shares. £ s. d. For registration of a Company whose nominal capital does not exceed 2000Z., a fee of 2 For registration of a Company whose nominal capital ex- ceeds 2000Z., the above fee of 2Z., with the following additional fees regulated according to the amount of nomi- nal capital ; (that is to say,) For every lOOOZ. of nominal capital, or part £ s. d. of WOOL, after the first 2000Z., up to bOOOl. 10 For every 1000/. of nominal capital, or part of lOOO;., after the first 5000Z., up to 100,000/ 6 For every 1000/. of nominal capital, or part of 1000/., after the first 100,000/. 10 For registration of any increase of capital made after the first registration of the Company, the same fees per 1000/., or part of 1000/., as would have been payable if d xxxiv Lcm cmd Practice of £ s. such increaBed capital had fonned part of the] original capital at the time of registration. Provided that no Company shall be Uable to pay in respect ol nominal cajjital on registration, or afterwards, any greater amount of fees than 50Z., taking into account in the case ot fees payable on an increase of capital after registration the fees paid on registration. For registration of any existing Company, except such Com- panies as are by this act exempted from payment of fees m respect of registration under this act, the same fee as is charged for registering a new Company. For registering any document hereby required or authorised to - be registered, other than the Memorandum of Association. 5 For making a record of any fact hereby authorised or required to be recorded by the Registrar of Companies, a fee of ... 5 Table C. Table of Fees to he paid to the Registrar of JoraT-STOCK Compan: by a Company not having a capital divided into shares. £ s. For registration of a Company whose number ot members as stated in the Articles of Association does not exceed 20 ... 2 For registration of a Company whose number of members, as stated in the Articles of Association, exceeds 20, but does not exceed 100 5 For registration of a Company whose number of members, as stated in the Articles of Association, exceeds 100, but is not stated to be unlimited, the above fee of 61., with an addi- tional 5s. for every 50 members or less number than 50 members after the first 100. For registration of a Company, in which the number of mem- bers is stated in the Articles of Association to be unlimited, a fee of 20 For registration of any increase on the number of members made after the registration of the Company in respect of every 50 members, or less than 50 members, of such in- crease ... ... 5 Provided that no one Company shall be liable to pay on the whole a greater fee than 201. in respect of its number of members, taking into account the fee paid on the first registration of the Company. For registrntiou of any existing Company, except such Com- panies as are by this act exempted from payment of fees in respect of registration imdcr this act, the same fee as is charged for registering a now Company. For registering any document hereby required or authorised to be registered, other than the Memorandum of Asso- ciation ... ... ... ... .. ... Q 5 For making a record of any fact hereby authorised or'required to be recorded by the Registrar of Companies, a fee of ... 5 Joint-Sfock Companies. xxxr The effect of registration is thus declared by the act : (sect. 13)— The Company becomes a body corporate by the name prescribed in the Memorandum of Association. It has a perpetual succession and a common seal. It has power to hold lands. The date of the certificate is to be deemed the date of incorporation. The Peospectus. Being now a Company, or corporation, vested with great powers, exempted from aU legsl liabilities, practically irre- sponsible for its acts and defaults, it will be the most con- venient course to issue the prospectus and canvas for sup- port. For this purpose the first care wiU be to prejtare the yrospedmiS. This is a very important matter, for success or foilure wiU often depend upon the judgment and tact with which the prospectus is drawn. A few practical hints as to this may be acceptable. In the first place, provide your oiEcers j make your ap- pearance before the world with good names, as a guarantee for respectability — an assurance to the pubHc that there is reality in the project, and that sensible men think well of it. Let directors and secretary be secured before you ask the support of shareholders. In the choice of directors, prefer men who are known to be prudent, and who have proved their capacity in the management of their own affairs, to merely great names. State the objects of the proposed Company shortly, simply, and clearly. Then set forth, with equal clearness, but not necessarily with equal brevity, the facts and figures upon which you base your calculations of profit. Mere assertion will not do. Eemember that you will have many competitors for the patronage of those who have money to invest. A thousand schemes invite them on every side, and the very numbers will make them more careful in investigating the claims of each. In your calculations, estimate every item as much against yourseff as possible. Conceal no difficulties nor objections, but staite them and answer them. XXXVl Lam) amd PraeUee of An important rule to be observed in framing a pi is, not to make it too long. Persons will not trouble to read very long papers, and, if tbey re; tbey do not understand tbem. Use as few wordi sible. Make your sentences as sbort as possible, the prospectus into many paragraphs, separatii by a marked space, so that the eye may read: them. Many a bad scheme has been made tc by a clever prospectus, and many a good one has reason of a bad prospectus. More depends upon upon almost any other particular ia the getting Company, and therefore it is that we say so much We therefore present a specimen of one, which, i1 understood, is entirely imagioary. PROSPECTUS OF THE CLOTHING COMPAl^ LIMITED. Capital, 20,000?., m 20,000 Shaees of 11. each. Provisional Directors. John Smith, Esq., Clapham. I Edwaed Jones, Esq., E William Robinson, Esq., Hart-st. | Samuel Brown, Esq.,"W Secretary — James Thomas. Bankers — The Holborn BasMng Company. 0/^e— 21, Charles-street. This Company is formed to carry on the business of clothii departments. The profits of this business are known to be at least 30 pei But it is certain that these may be largely increased by betti ment, more cautious credit, offering advantages to ready-money and concentration of management. According to the present system those who pay ready moi fact, for the long credits and bad debts of other customers. The plan of the Clothing Company wiU be to establish scales of charges — ^for long credit, short credit and ready moi it to thoLF customers to adopt which they please. Those wh{ money wiU have aU the advantage of low prices to whi< entitled. If a bill is delivered, it will be made out at the higl credit charge, but with notice to the customer upon the biU thi within so many montlis such a smn will be accepted in fu] arrangement justice wiU be done to every class of customers. Establishments wiU be opened by the Company in differe the metropolis, and in the largest provincial towns. Joint-Stock Oompcmies. xxxvii Systematic means mil be adopted to prevent credit being given to doubtful customers. Security will be required from all the servants of the Company. It is calculated that the shareholders may anticipate a return of from 20 to 30 per cent, upon the capital, the amount of their profits depending much upon their own exertions to increase the business of the Company. AppUcations for shares in the following form to be addressed to the Secretary at the Office of the Company, 21, Charles-street. To the Directors of the Clothing Company Limited. Be PLEASED to allot to me shares in the Clothing Company Limited Dated the day of , 1856. Signed AiB. of The above short form of a prospectus wiU serve for a sort of model, to be varied according to the subject-matter. We have written it without reference to any particular scheme^ but perhaps the suggestion there made of three scales of prices, giving to ready money the advantage to which it is entitled, would be very likely to succeed, and might be extensively adopted, not only by Companies, but by indi- vidual traders. The prospectus having been advertised and circulated, and applications for shares being received, you will proceed to allot them, according to your estimate of the applicant's worth. But there is not the same necessity now, as for- merly, to ascertain the solvency of the proposed shareholder, for he is liable only for the amount of his shares, and the creditors of the Company can obtain no more from the richest than from the poorest shareholder. Formerly it was desirable to have the most responsible and respectable shareholders you could obtain. That precaution is no longer necessary, and hence no inquiries need be made, and refer- ences may now be dispensed with. The form of allohnent of shares may be as follows -.-^ The Clothing Company Limited. Office, 21, Charles-street, 1st Aug. 1856. Sir, — The directors have allotted to you five shares of \l. each in this Company, and you wUl be pleased to pay the sum of 10s. per share to the Holborn Banking Company, to the account of the Company there xxxviii Lcm and Prcmticeof within fourteen days from the date hereof; otherwise this allotmei ■will be avoided. — I am, sir, your obedient servant, James Thomas, Secretary. To Mr. John Jones, 14, Milton-street. P.S. — Be pleased to present the note on the other side at the ban and you will receive a voucher for such payment. To the Holbom Banking Company. Gentlemen, — Please to receive from Mr. John Jones, of 14, Miltoi street, St. Pancras, the sum of 21. 10s., being the first instalment of fii shares allotted to him in this Company, and give him the voucher fi the same. Yours, &c., James Thomas, Secretary. The Clothing Company Limited, 21, Charles-street, 1st Aug. 1856. Allotment No. 1. — Shares, five of 11. each. Some Companies have adopted the plan of requiring deposit to be made with the application for shares. Thei are advantages in this practice. It pr'events a multitude ( merely speculative and inconsiderate applications, and is tl best pledge of bona fides. Should it be desired to adoj this course, the prospectus should state that " a deposit ( 5s. per share must be paid upon all applications for share to the account of the Company, at the Holbom Bank." And the form of application for shares should in such cas be thus : — To the J}irectors of the Clothing Company Limited. Gentlemen, — Be pleased to allot me ten shares in this Company, ( account of which I have paid a deposit of bs. per share to the account the Company at the Holborn Bank. While shareholders are thus being obtained, the promote: should employ themselves in settling The Articles of Association. This documout is described iu the 14th section, vrhic thus enacts — 14. The JMouiorandum of Association may, iu the case of a Compai limited by shares, and sliall, in the case of a Company limited 1 guarantee or milimited, be accompanied, when registered, by Articles Association signed by the subscribers to the Memorandum of Ass ciation, and prescribing such regulations for the Company as the su Boribers to the Memorandum of Association deem expedient: T articles shall bo expvossL'd in separate paragraphs, numbered arithui tically : They may adopt nil or any of the provisions contained in t table marked A. iu the first schedule hereto : They shall, in the ce of a (^ompnny, whether limited by guariintee or unlimited, that has Jomt-Stock Oompcunies. xxxix capital divided into shares, state the amount of capital with which the Company proposes to be registered ; and in the case of a Company, whether limited by guarantee or unlimited, that has not a capital divided into shares, state the number of members with which the Com- pany proposes to be registered, for the purpose of enabling the registrar to determine the fees payable on registration : In a Company hmited by guarantee or unlimited, and having a capital divided into shares, each subscriber shall take one share at the least, and shall write oppo- site to his name in the Memorandum of Association the number of shares he takes. Now, it is necessary for the reader to understand wliat all this means, for it is very difficult to be gleaned from a cursory perusal of the act. The following appears to be the construction of it. Appended to the act, in a schedule, is a Table (A.) of Regulations for the management of a Company limited by shares. These are to be taken to be the regulations of the Company and equivalent to the deed of settlement under the old law, unless the Company shall, by Articles of Association, modify the whole or any part of them. Practically, there- fore, the regulations would be merely recommendations, and not law, were it not enacted that aU the regulations appli- cable to the particular Company are to govern it, unless modified by the Articles of Association. The consequence of this infelicitous form of law-making is, that if a Company should frame Articles of Association which did not embody every one of the regulations, the question would continually arise whether the articles were modified by the regulations, or to what extent. Hence, it has appeared to us, after much consideration given to the poiut, to be the most prudent course to embody in the Articles of Association so much of the table of regu- lations as may be deemed convenient, that thus the entire code for the government of the Company might be found ia its Articles of Association, without having to refer from them to the regulations in the schedule. With this view a form of Articles of Association has been prepared, which will embody so many of the regulations as appear to be good, modifying others to meet some difficulties which the author has found, from long experience, to arise in the conduct of Companies. As unUmited power is given to the promoters of Companies to frame their own regulations, which will not even be subjected to the scrutiny of the registrar, it is very desirable that advantage should be taken of the privilege to introduce every kind of protection which can be suggested ; xl Laii) and I'raettee of these are therefore so prepared as to include whatever may be useful to any kind of Company, leaving to each Company to select such articles as may be best adapted to its peculiar circumstances. They are drawn with a view to the entire substitution of articles for the regulations, and the notes denote such modifications of the several articles as may seem to be required, in order to adapt them to different uses. It is the more necessary that the utmost care, caution, and foresight should be used in the preparation of the Articles of Association, because they will constitute the code of laws by which the Company wiU be governed, and every act done in violation of them will be an illegal act, for which the direc- tors or officers will incur a personal responsibility. It is enacted by sect. 16 that the Articles of Association shall, " when registered, bind the Company and the members thereof to the same extent as if each member had subscribed his name and affixed his seal thereto, and there were in such articles contained a covenant on the part of himself, his heirs, executors, and administrators, to conform to all the regula- tions contained in such articles, subject to the provisions of this act." Moreover, once registered, they cannot be changed with- out some difficulty. The Company is empowered by sect. 50 to alter and make new regulations at any time ; but this can only be done by special resolution of the Company passed by three-fourths in number and value of the shareholders present in person, or by proxy, at a meeting called for the purpose, and afterwards confirmed by a majority of the shareholders present at a second genei-al meeting, held at an interval of not less than fourteen days, nor more than one month, from the date of the meeting at which such special resolution was first passed : (sect. 51.) The Articles of Association are to be printed, they are to be stamped with the deed stamp, and signed by each sub- scriber in the presence of a witness, who must attest the subscription : (sect. 16.) The following may be the form of THE ARTICLES OF ASSOCIATION. They will be entitled thus : — "Articles ofAsgociatioii of the Company Limited." It is ao^veed as follows : — 1. That the regulations of Table ( A.) in fhe schedule to " The Joint Jomi-Stock Companies. ili Stock Companies Act, 1862," shall not apply, and that these Articles of Association shall be substituted for such regulations. 2. That A.B., CD., E.F., and G.H. shaU be the first directors of the Company. Note. — The subscribers of the Memorandum of Association will be the first directors, unless otherwise provided. 3. That L.M. shall be the managing director of the Company, with the salary of 700Z. per annum. Note. — This will be necessary where the promoter of a Company desires to secure to himself the reward of his own exertions in forming it. 4. That the Company purchase the business (or patent, as the case may be) of Mr. O.P., of , for the sum of 10,OOOZ. in cash, and ten thousand shares in the Company acknowledged to be fully paid up. Note. — This article wiU, of course, be omitted or varied according to circumstances ; but where a purchase is de- signed, it is prudent to make the bargain compulsory upon the Company, instead of leaving it to subsequent ratification. 5. That P.Q. be retained as the manager of the business of the Com- pany, at a salary of 600Z per annum, and a commission of 3 per cent, on all sales effected, and that he be not dismissed except by special resolution of the Company, passed in the manner prescribed by sect. 51 of the said act. Note. — It wiU be frequently necessary to introduce such an article as this, especially where the retainer of services is part of the consideration for the sale of the business of the Company. Where individual traders convert themselves into Limited Liability Companies, for the purpose of pro- curing the same privileges as the law has extended to their rivals, such a provision as above suggested is essential to the plan. 6. That R.S. shall be the solicitor to the Company, and that he shall not be dismissed except by special resolution of the Company, passed in like manner as iu the last article is prescribed. Note. — Experience has proved that it is necessary for all who undertake the labour and cost of getting up a Company to secure themselves in the offices which are the rewards of their exertions, by some such provision as those above suggested ; otherwise they incur the greatest hazard of being ousted by those who have borne none of the burden but who come in after the work is done and seize the lion's share of the spoil. The registrar was wont to object to the Xlll uaiw wiiAJi jrrwovoot: uj insertion of such provisions as tliese in the deeds of settle- ment of Companies. But now the law permits the insertioB of any terms the promoters may be pleased to introduce, and they would be unwise indeed not to include whatever may help to secure to themselves the fruits of their labours, Of course, similar articles might be inserted for the securing of offices, with certain fixed emoluments, to any other persons. 7. That T. U., Esq., shall be the staading coiinsel to the Company. 8. That the materials required for the manufactures of the Company (as the case may be) shall be purchased of A.B., at the market price thereof, and that if any dispute shall arise as to such price, it shaU be referred to arbitration, in the manner provided by sect. 72 of " The Joint-Stock Companies Act, 1862." STiares. 9. That a person be deemed to be a member of the Company on his signing an acceptance of shares, or making any payment on account of them. 10. Every member shall, on payment of one s hillin g \)q entitled to a certificate, imder the common seal of the Company, specifying the share or shares held by him, and the amount paid up thereon. 11. Where several persons are registered as joint holders of any share, the receipt of one of them for any dividend payable in respect of such share shall be sufiicient. Transfer u/Sharc-''. 12. That no share shall be transferred until all calls made upon it hv fully paid. 13. That the Company shaR have a lien upon the shares of a member for any debt due from him to Company, and that the Company may refuse to register aouy transfer of shares made by a member who is in- debted to them. Note. — This is a very necessary provision, for hitherto a Company has had no lien upon the shares for the debts of a shareholder. 14. The instrument of transfer of any sliare in the Company shall be executed both by the transferor and transferee, and the transferor shall be deemed to remain a holder of such shai-e imtil the name of the transferee is entered in the register book in respect thereof. 15. Shares in the Company shall be transferred hi the following form : — I, A.B., of in consideration of the sum of pounds paid to me by CD. of , do liereby transfer to the said CD. the share [or shares] mm.bercl standing in niv name in the books of the Company, to holaiu/, Law Rep. 1 Ch. App. 523 ; and Re London, Bomliai/, and Moditerranenn Bank, Law Rep. 1 Ch. App. 526, p. 178, iioxl. ((') See sect. 92, and Rules 10 and 12, p. ;)21, post. (/) Sfc Rule l;!, p. 322, jyost. {,,) See Rule U, ib. (h) Sect. 03, p. 170, post. {!) See sect. 93 and Rule 16, p. 322, po.it. (k) See sect. 93 and Rule 18, p. 323, ;««<. (/) See sect. 97, p. 18-1, post. Joint-Stock Companies. xcix such proceedings as are ordinarily conducted by solicitors of the court, (a) The official liquidator must of course keep accounts, and such accounts are to be passed andverified,. from time to time, in the same manner as receivers' accounts. (6) Upon the termination of the proceedings in chamber for the winding-up of the Company, the official liquidator is required to bring in a balance sheet of his receipts and pay- ments verified by his affidavit, and pass his final account ; the balance due thereon, if any, must then be paid as the court or judge shall direct, and upon this being done, the recognisance entered into by the official liquidator and his sureties may be vacated, (c) AH moneys received by the official liquidator are to be paid into the Bank of England immediately after the receipt thereof, and if this is not done within seven days, the official liquidator is subjected to a penalty, and may even have his remuneration disallowed. ((Z) This rule should be strictly observed, and official liquidators are not justified in employing the money of Companies in their hands for the purpose of making profit, even by way of short and well secured loans, (e) It is not necessary that the official liquidators should immediately terminate the business of the Company ; they may carry it ou as long as may be deemed necessary for the beneficial winding-up of the Company. (/) It is a part of their duty to take possession of the Company's books, papers, &c., (17) and they are required to make up, confirm, complete, and rectify the books of account of the Company, and to keep such books as may be necessary for showing the debts and credits of the Company, including a ledger con- taining the separate accounts of the contributories ; [h) these books of the Company and of the liquidators (as well as all their other accounts and documents) are made by the act prima fade evidence, as between the contributories of the Company, of the truth of all matters purporting to be re- corded in them.(i) Although it is the duty of the official liquidator to take (n) See Rule 68, p. 337, post. (ft) See Rule 19, p. 824, post. (c) See Rule 65, p. 337, post. (d) See Rules 11 and 36, pp. 321 and 329, post. (e) See the observations of the Master of the Rolls in W. N. 1866, p. 327. (/) Sect. 95, p. 180, post. Ig) See sects. 94 and 100, pp. 179 and 197, post, (h) See Rule 17, p. 323, post. (i) See sect. 154, p. 238, post. h2 c LcM} cmd Practice oj into his custody, or under his control, all the property, effects, and things in action belonging to the Company, (a.) yet technically the property of the Company is not vested in him, (6) and he brings or defends any action or suit on behalf of the Company, in the name of the Company, (c) The act, however, gives the liquidator ample power to do all acts necessary for the due winding-up of the Company; where more persons than one are appointed to the office of official liquidator, the court is to declare whether any act required or authorised to be done by the official liquidator is to be done by all, or any one or more, of such persons, (d) The things which the official liquidator may do are set forth in sect. 95 of the act;(e) these things may be done by him without the sanction or intervention of the court, if the court so provide by any order ; (/) but if no such order is made, the official liquidator must obtain the sanction of the court on each separate occasion before exercising the powers given by the act. This sanction is obtained by summons and order drawn up thereon, unless the judge otherwise directs, except in the case of bills, &c., and compromises, (jr) The act also enables (A) the official liquidators, with the sanc- tion of the court, to pay any class of creditors in full, or make such compromise, or other arrangement as they may deem expedient, with creditors, or persons claiming to be creditors. With regard to contributories, it is provided(i) that the liquidators may, with the sanction of the court, compromise all calls and liabiUties to calls, debts, and liabilities capable of resulting in debts, and all claims whether present or future, certain or contingent, ascertained or sounding only in damages, subsisting or supposed to subsist, between the Company and any contributory, or alleged contributory, or other debtor or person apprehending liabiHty to the Company. A further power is now given by " The Liquidation Act, 1868,"(/i;) to liquidators in the case of any winding-up, the proceedings in which wore pending on the 31st of July, 1868, to file a scheme disposing of the assets of the estate in liquidation, in any way that will be for its benefit. (a) See sects. 94 and 100. h) See, however, sect. 20;1, p. 278, post, as to unregistered Companies. (c) See sect. 95, p. 180, post. (,l) See sect. 92, p. 177, post. (e) See p. ISO, po^t. (/) See sect. 96, p. 184, post. ((/) See Jtules 48, 49, ,50, p. ;132, plsl. (hS See sect. 159, p. 244, i,o.-) See Rule 23, p. 325, p,w. (,-) See Rule 24, p. 325, post. (d) Sec p. 240, post, and Rules 25-28, p. 326, post. (e) As to expenses incurred and contracts entered into before the incorporation of a Company, see pp. 3 and 15, post. (Q Sect. 98, p. 1S5, post. (,,) See sect. 74, p. 147, po.-12, po.-t. (c) See sect. 100, p. 197, }wst. (/) See sect. 101, p. 198, po.-t, which section see also with regard to a contributory s right of set-off. ((/) See sect. 118, p. '210, post. Joiiit-Sioch Gompanies. cV deems necessary to satisfy the debts and liabilit'ies of the Company, and the costs of winding-upj and for the adjust- ment of the rights of the contributories amongst themselves, and in making a call it may take into consideration the pro- bability that some of the contributories may partly or wholly fail to pay. (a) The act gives the court full discretion as to the time of making a call, and the amount of it, and the Court of Appeal will be very slow to interfere with such discretion, as it is exercisedby the judge in the winding-up. (6) The statements made by the official liquidator will gene- rally be allowed to guide the judge in the making of calls, (c) An application to the judge to make a call is by summons, stating the proposed amount of the call, (d) Such summons must be served " four clear days at the least" before the day appointed for making the call, on. every contributory pro- posed to be included in it ; or if the judge so directs, notice of the intended call may be given by advertisement.(e) When an order for a call has been made, a copy of it must be served upon each of the contributories included in it, together with a notice from the official liquidator, specifying the amount due from him in respect of such call.(/) If the contributory fail to pay the call, by the day ap- pointed for payment, another order may be made, requiring payment, within four days after service of the order, of the sum required to be paid by the former order and noti(5e.(gr) If an order for payment by a contributory be not complied with, the ordinary jurisdiction of the Court of Chancery may be used to enforce it. {h) The liability of a person to contribute to the assets of a (b) See sect. 102, and the notes on it, p. 200, post. (6) See the judgments in Re Contract Corporation, Law Kep. 2 Ch. App. 95, p. 200, post. (c) lb. (d) See Rule 33, p. 328, post. (e) lb. (/) See Rule 34, p. 328, post. Rules 63 and 64 (p. 336, post) provide for the mode of service. As to service and affidavit of service under the repealed acts, see Ellis's case (3 De G. & Sm. 172), Ex parte Z)' Urban (18 Jur. 781), Re Nantle Vale Slate Company (27 Beav. 32 ; 7 W. R. 319), and Ex parte De Beanroir (32 L. J. Ch. 453). (g) See Rule 35, p. 329, post. (A) See sect. 120, p. .211, post, and Re United General Bread, Sfc., Company, HirtzeVs case (30 L. J. Ch. 38), as to committing for dis- obedience. See, also. Re North of England Banking Company, Maiwcr's case (4 De G. & Sm. 349), where it was held that a writ of ne exeat regno might be issued in proceedings under the Winding-up Acts. cvi Law and Practice of Company creates a specialty debtj payable when the calls are made in the winding-up. (a) Where a person made a contributory, as personal repre- sentative of a deceased contributory, makes default in paying the sum ordered to be paid by him, proceedings may be taken for administering the personal or real estate, or both, of such deceased contributory, and for compelling payment thereout of the money due.(&) The claims against contributories may be compromised by the official liquidator on such terms as may be agreed upon, but the sanction of the court is necessary in order to make such an arrangement binding, (c) Where a person settled on the list of contributories seeks to resist payment of a call on the ground that he is not a contributory, he may apply to the court to stay the proceed- ings for enforcing the call, while an application to have his name removed from the list is pending ; he must first, how- over, lodge in court the amount of the call.((^ One of the duties of the court on a winding-up is to adjust the rights of contributories amongst themselves, and distribute any surplus that may remain among the parties entitled thereto ; (e) and the coui't may make calls for the adjustments of such rights.(/) In the case of the winding-up of a limited Company, the holders of paid-up shares are entitled to have c.ills made on the holders of shares not fully paid up, in order to enforce their contributions to the assets of the Company. (;/) It may be observed here that, when all the creditors have been paid off, any moneys due on any account whatever to a contributory from the Company, may be allowed to him by way of set-off against any subsequent call or calls. (/() (a) See sect. 75, p. 1-ty, post. Qj) See sect. 105, p. 203, post. (c) See sect. 160, p "24:0, post. ((I) Sec lie Ortniiil, (rHnivji. and OmiyjaH//, E.t parte Dales and Peeke (W. N. 1866, p. 361), and 7i'c Pi iiiii-tnlai; We.^t Indian, and Soathem Bank, Jopps' ruse (\\ . N. 1867, p. 19:i), p. 201, post. (c) See sect. 109, p. 205, post. Sect. 92 of "The Winding-up Act, 1848" (11 & 12 Vict. c. 45), corresponded with this; under it was decided the case of Re Iri.-ih Consoh Mining Company, Ex parte Perrier (7 Ir. Ch. Rep. 256), where a contributory was made liable for the full amount of nominally paid-up shares obtained by him, and transferred to other parties in a fraudulent manner. (/) See sect. 102, p. 200, post. (.'/) R'' Amjksea Co/licrii Company (Law Rep. 1 Ch. App. 566), iind Re Cr.iiikhurcn MiniiKj Componij (l.:nv Kcp. 3 Eq 69) (/)) See sect. 101, p. 198, p:,'si. Joliit-Sfoclc Coi)ipan!c.9. cvii Termination of Winding-up. As soon as the affairs of the Company are fully wound-up, it is provided(a) that the court shall make an order, dissolving the Company as from the date of the order, and that the Company shall be from that time dissolved. The official liquidator is required to report the order to the registrar, who is to make a minute of it in his books. (6) When the Company is about to be dissolved, its books may be disposed of in such manner as the court may direct ;(c) the file of proceedings on the winding-up and the book containing the official liquidator's account are to be deposited in the Eecord and Writ Clerks' Office. ((2) Voluntary Winding-up. Companies registered under one of the former Joint-Stock Companies Acts may be wound-up voluntarily, as well as Companies registered under the Act of 1862 ; (e) and also all societies registered under " The Industrial and Provident Societies Act, 1867. "(f) No unregistered Company can, however, be wound-up voluntarily under the act. (g) A Company under the act may be wound-up volun- tarily (/i) — 1 . Whenever the period, if any fixed for the duration of the Company by the Articles of Association, expires, or whenever the event, if any, occurs'upon the occur- rence of which it is provided by the Articles of Asso- ciation that the Company is to be dissolved, arid the Company in general meeting has passed a resolution requiring the Company to be wound-up voluntarily ; 2. Whenever the Company has passed a special resolution requiring the Company to be wound-up voluntarily ; 3. Whenever the Company has passed an extraordinary resolution to the effect that it has been proved to their satisfaction that the Company cannot by reason of its liabilities continue its business, and that it is advisable to wind-up the same. (a) Sect. Ill, p. 205, /wst ; and see Rule 66, p. 337, post. A form of the order is given (No. .56), p. SGS, post. (b) See sect. 112, p. 206, post. (c) See sect. 155, p. 238, post. ((/) Kule 67, p. 3S7, post. (e) See note (a), p. 217, po-it. (/) See p. il9, ;)o.s(. (y) See sect. 199, cl. 2, p. 272. post. (7() Sect. 129, p. -217, post. cviii Law and Practice of The manner in whicli the resolution, whether special or extraordinary, should be passed, is pointed out by the act, (a) and if the directions contained in it are not com- plied with, the resolution will be invalid. It is provided by the act (6) that notice must be given by advertisement, of the passing of a special or extraordinary resolution to wind-up voluntarily. The winding-up com- mences at the time of the passing of the resolution ; (c) where there is a preliminary and a confirmatory resolution, the commencement of the winding-up dates from the pa,ssing of the second resolution, (d) Although the Company is not dissolved until the winding-up is completed, (e) yet after its commencement it must cease to carry on business, except so far as may be required for a beneficial winding-up. (/) It is also provided that after the resolution to wind-up is passed, no transfers of shares shall be valid, except such as are made to, or with the sanction of, the Hqnidators, and that no alteration shall take place in the status of the members, (gf) The Company, in general meeting, has the right to appoint one or more liquidators to conduct the winding-up, (^) and is empowered to fill up, in a similar manner, any vacancy in the office of the liquidator or liquidators so appointed, (i) A Company may also, by an extraordinary resolution, dele- gate the power of appointing liquidators, or any of them, to its creditors or any committee of them. (A:) If from any cause there is no liquidator acting in a voluntary winding- up, the court may appoint one or more on the application ol a contributory. {I) The court may also, on due cause showUj remove any liquidator and appoint another in his place.(')«-) Upon the appointment of liquidators, all the powers of the directors cease, except in so far as the Company in general meeting or the liquidators sanction the continuance of sucL powers. (») If one liquidator only is appointed, all the provisions ol (a) See p. 217, if seq. (b) See sect. 132, p. 220. (o) Sect. 130, p. 218, post. (d) See Re China Steam Ship Compami, Dawes' case, Law Rep. 6 Eq 232, p. 219, post. f r J i- -1 U) See sect. 143, p. 229, post. (/) See sect. 131, p. 219, post, (n) See ib. and the cases there referred to. (/i) Sect. 133, ol. 2 and 8. Sec the cases referred to in the note. (i) Sect. 140, p. 228, post. (i) Sect. 135, p. 225, post. (I) Sect. 141, p. 228, post. \m) lb. ^ (h) Sect. 133, cl. 5, p. 221, post. Joint-Stock Oompanies. cix the act in reference to several liquidators shall apply to him,{a) and when several liquidators are appointed, all powers may be exercised by such one or more of them as may be determined at the time of their appointment, or in default of such determination, by any number not less than two.(?)) It is the duty of the liquidators — 1. To apply the property of the Company in satisfaction of its liabilities pari passu, and subject thereto to distribute it amongst the members according to their rights and interests in the Company, unless it be other- wise provided by the regulations of the Company ;(c) 2. To pay the debts of the Company, and adjust the rights of the contributories amongst themselves ; {d) 3. As soon as the affairs of the Company are fully wound- up, to make up an account showing the manner in which such winding-up has been conducted, and the Company's property disposed of;(e) 4. To call a general meeting of the Company for the purpose of having the account laid before them, and hearing any explanation that may be given by the Hquidators ; (/) 5. To make a return to the Registrar of Joint Stock Companies of such a meeting having been held ; (g) 6. In the event of the winding-up continuing for more than one year, to summon a general meeting of the Company at the end of the first year, and of each succeeding year from the commencement of the winding-up, and to lay before such meeting an ac- count showing their acts and deaUngs, and the manner in which the winding-up has been conducted during the preceding year, {h) The act empowers the liquidators — 1. To exercise without the sanction of the court all powers given by the act to the official liquidator ; [i) 2. To exercise the powers given by the act to the court of settling the list of contributories ;(fc) (a) Sect. 133, cl. 4, p. 221, post. (h) Sect. 138, cl. 6. (c) Sect. 133, cl. 1, p. 220, post. (_d) Sect. 133, cl. 10, p. 222, pnnt. (e) Sect. U2, p. 229, pos^. (/) Sect. 142, p. 229, po.?^ (r/) Sect. 148, p. 229, post. Qi) Sect. 139, p. 228, post. (0 Sect. ISd, cl. 7. (jh) Sect. 133, cl. 8. c'x Law and Practice of 3. To make calls on all or any of the contributories for the time being settled on the list of contributories, to the extent of their liability ; {a) 4. To apply to the court to determine any question arising in the matter of the winding-up, or to exercise all or any of the powers which the court might exercise if the Company were being wound-up by the court ;(fc) 5. To summon general meetings of the Company for any purposes they may think tit ;(c) 6. With the sanction of an extraordinary resolution of the Company, to make such compromise or other arrange- ment as they may deem expedient with creditors or any person having any claim against the Company, (d) and also to compromise all debts owing to the Com- pany by, or claims made by the Company on, any contributory or other debtor or person apprehending liability to the Company j(e) 7. With the sanction of a special resolution, to transfer or sell to another Company the whole or a portion of the business of the Company in consideration of shares, policies, or other like interests for the purpose of dis- tribution among the members, or enter into any other nrrangements, whereby the members may participate in the profits of, or receive any other benefit from, the purchasing Company ; {/) 8. In cases of winding-up that come within " The Liqui- dation Act, 1868," to divide any part of the assets of the Company in specie, or otherwise dispose of them without sale;(<7) Lastly. With the previous sanction of the court, to pro- secute any director, manager, officer, or member of the Company, who has been guilty of any offence in relation to the Company for which he is criminally responsible. (/() It is of course within the powers of the liquidators to sell or contract for the sale of the assets of the Company, (i) and should objections be raised in any particular case, the court (a) Soct. i;!;l, cl. 9. (I,) Sect. 138, p. l>2fi, post. (e) Soct. 13!), p. 228, post. (,/) Sect. 159, p. 244, po.'t. 'hS Soo Goncnxl Order of November, 1862, p. 317, post. I re) Sect. U9, p. iT.L', poxt. ((!) See pp. 169, 231, jkisI. See, also, Re London and Mediterranean Banl; W. N. 1866, pp. L'()7, ;U7 ; and Re Inns of Court Hotel Conmami, W. N. 1866, p. iUS. (c) Soot. 1-18, p. 23i>, post. (/) Sect. 164, p. 253, post. ((/) Sect. 161, p. 234, post. Joint-Stocli Ooiwpanies. cxiii A winding-up under supervision is deemed to commence from tlie date of the resolution to wind-up voluntarily, and, where there are two resolutions, from the date of the second, or confirmatory one .(a) The liquidators (if any) appointed by the Company in the voluntary winding-up continue to act, and, unless restricted by the court, may exercise aU their powers without the sanction or intervention of the court, as if the Company were being wound-up altogether voluntarily.(6) If the contributories have not exercised their right of appointing liquidators before the supervision order is made, they cannot do so afterwards. (c) The court will then exer- cise its power (d) of appointing any liquidator or liquidators it thinks fit. Where a liquidator or liquidators have been already ap- pointed by the Company, the court may, in the supervision order,' or any subsequent order, appoint any additional liquidator or Hquidators j(e) such liquidators will in all re- spects stand in the same position as if they had been appointed by the Company ; (/) but the court may, from time to time, remove them, or fill up vacancies in their number, (g') In the case of liquidators appoiated by the Company, the court has the power of removing them only on due cause shown, which the court would probably hold to exist only in the case of misconduct on the part of the liquidators. (A,) Where a supervision order has been superseded by a compulsory order, the court may ia such last-mentioned order, or in any subsequent order, appoint the voluntary liquidators, or any of them, either provisionally or perma- nently, and either with or without the addition of any other persons, to be ofiicial liquidators, (i) (a) See Re Smith, Knight, and Company, Weston's case, Law Rep. 4 Ch. App. 20, p. 231, post. (6) Sect. 151, p. 234, post. (c) See Re London Quays and Warehoiuies Company, Law Rep. 3 Ch. App. 394, p. 233, post. (rf) Sect. 150, p. 234, post. («) lb. (/) lb. (g) lb. (A) Sect. 141, p. 228, post. See, also. Re London and Mediterranean Bank, W. N. 1866, p. 317 ; and Re United Merthyr Collieries Company, W. N. 1867, p. 99. (0 Sect. 152, p. 235, post. THE COMPAIS^IES ACTS. THE COMPANIES ACTS. THE COMPANIES ACT, 1862 (25 & 26 Vict. cap. 89). An Act for the Incorjporation, Regulation, and Winding-up of Trading Companies and other Associations. — [j/th August 1862.] Whereas it is expedient that the laws relating to the incorporation, regulation, and winding-up of trading Com- panies and other associations should be consolidated and amended : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Peeliminart. 1. Short title. — ^This act (a) may be cited for all purposes as "The Companies Act, 1862." (a) This act.'] — See sect. 2 of " The Companies Act, 1857 ," post. 2. Commencement of act. — This act, with the exception of such temporary enactment as is hereinafter declared to come into operation immediately, shall not come into operation until the second day of November one thousand eight hundred and sixty-two, and the time at which it so comes into operation is hereinafter referred to as the commence- m^ent of this act. 3. Definition of insurance Company. — For the purposes of this act a Company that carries on the business of in- surance (&) in common with any other business or businesses shall be deemed to be an insurance Company. (6) A Company that carries on the business of insurance, SfC.'J — See The London Monetary Advance and Life Assurance Company v. Smith, 3 H. & N. 543 ; 27 L. J. Ex. 479. 2 The Oompanies Act, 1862. 4. ProMhition of partnerships exceeding certain number. — No Company, association, or partnersliip consisting of more than ten persons shall be formed, after the commencement of this act, (a) for the purpose of carrying on the business of banking, (6) unless it is registered as a Company under this act, or is formed in pursuance of some other act of Parliament, or of letters patent; and no Company, asso- ciation, or partnership consisting of more than twenty persons (c) shall be formed, (cZ) after the commencement of this act, for the purpose of carrying on any other business that has for its object the acquisition of gain(e) by the Company, association, or partnership, or by the individual members thereof, unless it is registered as a Company under this act, or is formed in pursuance of some other act of Parliament, or of letters patent, or is a Company engaged in working mines within and subject to the jurisdiction of the Stannaries. (a) After the commencement of this act.'] — This act, therefore, extends to — 1. Banking Companies having more than ten partners. 2. Other Companies having more than twenty partners. And it excepts — 1. Companies formed in pursuance of some other act of Parliament. 2. Companies formed by letters patent. 3. Mining Companies within the jurisdiction of the Stannaries. (6) For the purpose of carrying on the husimss of banking.'] — See Be District Savings Bank, Ex parte Coe, 10 W. R. 138. (c) No Company, ^c, consisting of more than twenty persons.] — Where forty-five persons formed a partnership and hired land for the partnership purposes without registering under this act, it was held that this was an illegal association under this section, and consequently that the several members did not acquire the franchise as occupying tenants within sect. 27 of the Reform Act, 2 AVUl. -i, c. 45 : (Harris v. Amerij, Law Rep. 1 C. P. 148.) (d) Shall be formed, S^r.] — Until the Company is registered, persons incurring liabilities on its behalf will be personally answerable for them. As to its liabilities after registration, see sect. 18 of this act. (e) The acquisition of gain.] — See sect. 23 of "The Companies Act, 1867," post, for special provisions as to associations formed for purposes not of gain. 5. DivL'^ion of act. — This act is divided into nine parts, relating to the following subject matters : The First Part, — to the constitution and incorporation of Companies and associations under this act : The Second Part,— to the distribution of the capital and liability of members of Companies and associa- tions under this act ; Memorand/uTii of Association, 3 The Third Part, — ^to the management and administration of Companies and associations under this act : The Fourth Part, — to the winding-up of Companies and associations under this act^: The Fifth Part, — to the Registration Office : The Sixth Part, — to application of this act to Com- panies registered under the Joint-Stock Companies Acts: The Seventh Part, — to Companies authorised to register under this act : The Eighth Part, — to application of this act to unregis- tered Companies : The Ninth Part, — ^to repeal of acts, and temporary- provisions. PAE,T I. CONSTITUTION AND INCORPORATION OF COMPANIES AND ASSOCIATIONS UNDER THIS ACT. MEMORANDUM OP ASSOCIATION. 6. Mode of forming Company. — Any seven or more persons (a) associated for any lawful purpose (6) may, by subscribing their names(c) to a Memorandum of Associa- tion, (cZ) and otherwise complying with the requisitions of this act in respect of registration, form an incorporated Company, (e) with or without limited liability. (/) (a) Seven or mnre persons.1 — -See sect. 48, infra, as to" the liabilities incurred by carrying on business with less than seven persons. (6) Associated for any lawful purpose.'] — A Company, when registered, is not answerable for the liabilities or engagements of its promoters, unless they are recognised and embodied in the Articles of Associa- tion, or acquiesced in or adopted by the Company after registration. When this is not the case, the promoters are personally liable, and each is answerable for his own acts, and for the acts of the other promoters so far as he has authorised such acts to be done on his credit. As to the personal liability of promoters, see Kelner v. Baxter, Law Kep. 2 C. P. 174 ; Scott v. Lord Ehury, lb. 255. Where E. W. P., the secretary of a Company not yet registered, gave an order signed " E. W. P., secretary pro tem.," for advertising the prospectus of the Company in a newspaper, it was held, on the authority of Pitchford V. Davis (5 M. & W. 2), that, as the Company was non- existent till registered, the secretary was personally liable for the expenses of advertising: {Hopcroft v. Parker, 16 L. T. N. S. 123. Smith, J.) P., the defendant, was associated with one W. and others in the for- b2 4 The Companies Act, 1862. mation of a Company. At a meeting of the projectors, of whicli the defendant was chairman, a resolution was passed that the prospectus then read and marked with the initials of the defendant be approved a,nd printed for private circulation ; and at a subsequent meeting, of which also the defendant was chairman, a further resolution was passed '' that the prospectus as altered and marked with the chairman s initials, be approved as the prospectus of the Company, and that the same be printed for circulation and advertised at the discretion of W. as early as possible." W. employed the plaintiffs to print the prospectus, showing them the initialed copy, and telling them that he was authorised by the defendant to get it printed. The prospectus when printed was delivered at the office of the Company, and was adopted and circulated by the defendant. There was an arrangement, not communicated to the plain- tiffs, between the defendant and W. that all expenses of forming the Company, down to the allotment of shares, were to be borne by W. It was held that there was evidence from which the jury might infer that W. had authority to pledge the defendant's credit for the printing: (Riley v. PacUngton, Law Kep. 2 C. P. 536 ; 36 L. J. 204, C. P. ; 16 L. T. N. S. 382.) A prospectus of a projected Company for the conveyance of emigrants to British Columbia contained statements calculated to induce intending emigrants to believe that arrangements had been perfected for the object in view, and inviting them to take tickets for their passage, and the public to purchase shares. This prospectus was shown by the secretary to the defendants, and they were asked to allow their names to be inserted therein as directors ; to which they consented, on being quali- fied (that is, presented each with 200 paid-up shares of the nominal value of \0l. each) and indemnified. Their names were accordingly inserted, and the prospectus published and advertised in the Times. It was held, in an action for breach of contract, that from these facts the jury were waiTauted in inferring that one who contracted with the secretary for a passage, and paid his money, upon the faith of the representations contained in the prospectus, did so upon the credit of the defendants, and consequently that he was entitled to sue them for a breach of such contract : (ColMngwood v. Berkehy, 15 C. B. N. S. 145.) In another case, the defendant authorised his name to be inserted as a director in the prospectus of a Company. The prospectus was sent to the defendant, who suggested alterations in it. The secretary gave orders to the plaintiff to advertise the prospectus, which was done at an expense of 236Z. The Company was never registered. It was held, in an action by the plaintiff against the defendant, to recover the expenses of the advertisements, that the defendant, by consenting to act as a director, had not authorised the secretary of the Company to pledge his credit, and that he was not liable to the plaintiff : (Btirbidge v. Morris, 34 L. J. 131, Ex. ; 12 L. T. N. S. 426.) See also Maddick v. Marshall, 17 C. B. N. S. 829, in error; 10 Jur. N. S. 1201 ; 11 L. T. N. S. 611. For an action by one promoter of a Company against the others to make them contribute their share of the amount of a. judgment recovered against him for expenses relating to the formation of a Com- pany, see Boulter v. Peplow, 9 C. B. 493. One of the promoters of a Company cannot maintain a suit in equity against his fellow promoters for contribution towards expenses incurred by him m promotmg tlie Company, unless he is willing Qiat an account should bo taken of the expenses mcurred by all the promoters : (Denton v. Macnat, Law Rep. 2 Eq. 352.) Meni(»-andum of Association. 5 Prospectus of a Company. The first step in the formation of a Company is usually the publication of a prospectus by its promoters, inviting the public generally to join the proposed undertaking, and setting forth the objects of the Company, the number and value of the shares proposed to be issued, and the amount of capital it is intended to start with. Sect. 88 of " The Companies Act, 1867," now requires that a pro- spectus should specify the dates of, and the names of parties to, any contract made prior to the issue of the prospectus. If this prospectus contains false statements of fact, or conceals material facts ; or if the obligations that would be incurred under it are substantially different from those incurred under the Memorandum of Association (^Dowries v. Ship, Law Rep. 8 H. L. 343, per Lord Cran- worth), any one taking shares on the faith of the prospectus is entitled to avoid his contract on discovering the deception. On this subject. Lord Chelmsford has expressed himself as follows : " Although, in its intro- duction to the public, some high colouring, and even exaggeration in the description of the advantages which are likely to be enjoyed by the subscribers to an undertaking, may be expected, yet no mis- statement or concealment of any material fact or circumstances ought to be permitted. In my opinion, the public who are invited by a prospectus to join in any new adventure ought to have the same opportunity of judging of everything which has a material bearing on its true character as the promoters themselves possess : (^The Directors, 4"C., of the Central Railway Company of Venezuela v. Kisch, Law Rep. 2 H. L. 113.) For cases where shareholders sought to repudiate their contracts on the above grounds, see notes under sects. 23, 35, and 98, infra. It has been held, however, that a person who before the registration of a Company applies for shares on the faith of a prospectus should be treated as having become aware of any variances between the pro- spectus and the Memorandum at the earliest practicable period ; and if the Memorandum and Articles of Association are in existence when he applies for shares, that he ought to be held bound to look to them before he makes his application : (JJe BarnecPs Banking Company, Peel's case, Law Rep. 2 Ch. App. 674, post.) Recovery of Deposit, §-c., on the Project proving abortive. When the project of forming a Company proves abortive, the shares holders may, suljject to the terms of their contract, maintain a suit in equity for an account of the application of the money subscribed, and for repayment of the whole or part of the money they have paid ; the suit may be maintained not only when there has been fraud (see Colt v, Wollaston, 2 P. W. 154, and Blain v. Agar, 1 Sim. 37 and 2 lb. 289), but also where there has been no fraud : (see Harvey v. Collett, 15 Sim. 332.) The promoters of a Company issued a prospectus stating that deposits would be returned if no allotment of shares was made. Several deposits were made, but no allotment ever took place. It was held that this statement did not bind moneys, consisting mainly of these deposits, standing in a bank to the credit of the Company, with a trust or lien in favour of the depositors, as against creditors of the Company ; and demurrer was allowed' to abiU by depositors seeking to restrain creditors from attaching the moneys under a garnishee order, A bill may be filed 6 The Companies Act, 1862, by depositors upon applications for shares in an abortive Company, in which no aUotment of shares has been made, on behalf of themselves and aU the other depositors : {Moselei/ v. Cressey's Company, Law Kep. 1 Eq. 405 ; 12 Jur. N. S. 46 ; 14 L. T. N. S. 99.) Where a plaintiff, having been struck off the register of a Company by an order of the court on the ground of excess in the objects of the Company (as shown by the Memorandum registered after he became a member over those stated in a prospectus on the faith of which he took shares), filed a bill for the return of his deposit money against the directors who issued the prospectus, and the Company, not alleging fraudulent intention, a demurrer by the Company was allowed on the ground that the money in their hands was not impressed with a trust ; and a demurrer by the directors was allowed on the ground that mere excess of authority by an agent does not constitute equitable fraud, and that any relief in such case must be at law : {Steirart v. Austin, Law Kep. 3 Eq. 299 ; 36 L. J. 162, Ch. ; 15 L. T. N. S. 407.) Action to recover Deposit. To sustain an action for money had and received, against a person named as a director of a, projected Company by a proposed subscriber, for his deposit, two things must be shown ; first, that the money so paid came to the defendant's hand or power for the purpose of being applied to the objects of the projected Company ; and, secondly, that the project failed by reason of no Company, or no Company conformable to the prospectus, having been formed : {Hayes v. Stirling, 14 L:. Com. Law R. 277.) B. applied for shares in the C. Company on the faith of a prospectus which stated {inter alia) that a certain portion of the capital had been already subscribed, the greater portion of this being the paid-up shares given to the promoters. There were other alleged misrepresenta- tions. In an action to recover back the moneys paid for the shares, it was held that the questions for the jury were — first, whether the statements in 'the prospectus were false in fact? Secondly, whether defendants knew them to be false, or issued them in honest belief of their truth ? Thirdly, whether plaintiff was whoUy or in any material degree influenced by those statements : {Moore v. Burke, 15 L. T. N. S. 118, Q. B. Cockburn, C.J.) {c) By subscrihinc/ th^ir names.'] — By sect. 23 of this act, the sub- scribers to the Memorandum of Association shall be deemed to have agreed to become members of the Company, and of course incur all the liabilities of members. The Memorandum should be subscribed in presence of and attested by one witness at least. See Form A. in the second schedule to this act. The Subscrihe7-s to the Memorandum competent to act as Directors. The subscribers to the IMemorandum of Association are competent to act as first directors, and it seems that acts done by them unanimously are not vitiated by the fact of no meeting being held to sanction them : {Hallows V. Frriiic, Law Rep. 3 Eq. 520.) A Company was incorporated under this act ; the Memorandum of Association being signed by seven shareholders : no deed of association was filed, and no other shares were allotted ; A. entered into an agreement to act as foreman of the " Company's" works, which was signed by B. and Memorandum of Association. 7 C, two of the persona signing the Memorandum of Association, as " chairman," and " managing director," respectively. In an action by A. against the Company for work done under the agreement, it was held that, in the absence of evidence to the contrary, the jury were justified in presuming that B. and C. had authority to bind the Com- pany: (Totterdell y. TJie Fareham Blue Brick and Tile Company, Law Eep. 1 C. P. 674; 12 Jur. N. S. 901.) (rf) Memorandum of Association.] — A form is given in the second schedule to this act, Form A., post. (e) Form an incorporated Company.'] — The Company is not formed until after registration (under sect. 17) takes place. After registration, however, the registrar's certificate (under sect. 18) is conclusive evidence that all previous requisites in respect of registration have been complied with (Re Barned's Banking Company, Peel's case, Law Rep. 2 Ch. App. 674) ; and even the subscription of the Memorandum of Association by seven persons, as required by this section, cannot then be questioned : (Oakes v. Turquand and Harding, Re Overend, Gurney, and Co., Law Kep. 2 H. L. 325.) (/) With or without limited liahility.] — Unless the Company is ex- pressly stated to be " limited," the liability of its members wUl be unlimited. 7. Mode of limiting liahility of members.] — The liability of tlie members of a Company formed under this act (a) may, according to the Memorandum of Association, be limited either to the amount, if any, unpaid on the shares respectively held by them, (6) or to such amount as the members may respectively undertake by the Memorandum of Association to contribute to the assets of the Company in the event of its being wound-up. (a) Formed under this act.] — A limited Company may now be formed in which the liability of the directors, managers, or managing director may be unlimited : (see sect. 4 of " The Companies Act, 1867," post.) (V) The amount, if any, unpaid on the shares, Sj-c] — -Where the liability is thus limited, and the shares are fully paid up, all liability on the part of the holders ceases, and creditors have no remedy except against the effects or property, i£ any there be, of the Company. 8. Memorandwm of Association of a Company limited hy shares.] — Where a Company is formed on the principle of having the liability of its members limited to the amount unpaid on their shares, hereinafter referred to as a Company limited by shares, the Memorandum of Association shall contain the following things : (a) (that is to say,) (1.) The name of the proposed Company, with the addi- tion of the word "limited" as the last word in such name: (2.) The part of the United Kingdom, whether England, 8 The Companies Act, 1862. Scotland, or Ireland, in which the registered office of the Company is proposed to be situate : (3.) The objects for which the proposed Company is to be established : (fe) (4.) A declaration that the liability of the members is limited : (5.) The amount of capital(c) with which the Company pro- poses to be registered divided into shares of a certain fixed amount : Subject to the following regulations : (1.) That no subscriber shall take less than one share : (2.) That each subscriber of the Memorandum of Asso- ciation shall write opposite to his name the number of shares he takes. {(£) (a) The Memorandum of Association shall contain the following things.'] — " The Memorandum of Association is the charter and limit of the powers of the Company, just as the Articles of Association may be said to be its rules of internal government :" (per Lord Cairns, L.J., Re Cachar Company, Lawrence's case, Law Rep. 2 Ch. App. 424.) Where the Memorandum of Association empowered the directors, without further authority from the shareholders, to pay a specified sum for the costs and expenses of the promoters, it was held by the Court of Chancery on demurrer that a payment without taxation was not Improper : {Croskey v. The Bank of Wales, 4 GifF. 314 ; 8 L. T. N. S. 301 ; 9 Jur. N. S. 596.) (6) The objects for which the proposed Company is to be established.'] — These should be clearly and fuUy stated, as the powers of the Company entirely depend on them. Where a prospectus of a Company is issued before the Company is registered, anyone applying for shares in the Company, on the faith of the prospectus, may repudiate these shares on the registration of the Company, it he find the Memorandum of A.ssociation to differ materially from such prospectus (see Re Russian (Vyksounsky) Iron 'Works Company, Stewart's case. Law Rep. 1 Ch. App. 574, post. See also Re Cachar Company, Lawrence's case, Re Russian Sfc, Company, Kiiicaid's case, Law Rep. 2 Ch. App. 412, post; The Directors, ;\r., of Central Railway Company of Venezuela V. Kisch, Law Rep. 2 H. L. 99) ; but a mere difference in the lan- guage of the prospectus and the memorandum would not relieve him from his liability. The question would be whether the obMgations incurred under tho two documents were substantially different : (Downes V. Ship, Law Rep. 3 H. L. 343.) The Objects stated in the .^^emorandtl7n must be adhered to. The funds of a Company estabKslied for the purposes of one under- taking cannot be appUed to another, and the attempt so to apply them, though sanctioned by all the directors and by a large majority of the shareholders, is illegal. But where a Company was established "for the erection, furnishing, and maintenance of an hotel, the carrying on the usuiJ business of an hotel and tavern therein, and the doing all such things as are incidental or otherwise conducive to the attainment Memorcmdum of Association. , 9 of the above objects ; " and the directora, while the hotel was in the course of being built, agreed to let off, for a stipulated period of short duration, a large portion of it to the head of a Government department for the business of Ms office, and evidence was given that such a letting was calculated to be productive of advantage to the Company in its intended business, and that a majority of shareholders had sanctioned the act, it was held that the arrangement was vaUd within the words of the clause, " all such things as are incidental, or otherwise conducive to the attainment " of the objects for which the Company was esta- blished: (Simpson v. Westmhtster Palace Hotel Company, 8 Ho. Lords Cas. 712.) See The Australian Steam Company v. Mounsey, 4 Kay & J. See also Featherstonhaugh v. Lee Moor Porcelain Clay Company (Law Rep. 1 Eq. 318), where it was held that a majority of two-thirds of the shareholders in general meeting were empowered under certain clauses, in their deed of settlement, to authorise the directors to make a valid mining lease for twenty-one years of the whole of the works and build- ings of the Company. Compare with the last two cases the case of Ee London and Colonial Company, Horsey's claim (Law Rep. 5 Eq. 561), and see note under it for remarks of Wood, V.C., on Simpson v. Westminster Palace Hotel Company. See also his judgment in the Joint-Stock Discount Company V. Brown, Law Rep. 3 Eq. 151. The objects of the Company are to be taken into account when the question is whether the Company can issue a negotiable instrument imder sect. 47, injra : (see Bateman v. Mid- Wales Railway Company, Law Rep 1 C. P. 499 ; Balfour v. Ernest, 28 L. J. 170, C. P. ; 5 Jur. N. S. 439 ; 32 L. T. 295.) A Company was formed under this act for the purpose of purchasing a concession from a foreign Government for the construction of a railway and forming a societe anonyme to make the railway. The Memorandum stated that in order to attain their main object the Company might do, in England, or Peru, or elsewhere, whatever they thought incidental or con- ducive thereto. The Articles gave the directors power to do all things, and make all contracts which, in their judgment, were necessary and proper for the purpose of carrying into effect the object mentioned in the Memo- randum. It was decided in the court below that bills of exchange accepted iu manner prescribed by sect. 47 of this act were bindrug on the Company, for that every Company constituted under this act has power to issue bills of exchange : but it was held, on appeal, that this act does not confer on all Companies registered under it a power of issuing negotiable instruments ; but that such a power exists only where, upon a fair construction of the Memorandum and Articles of Association, it appears that it was intended to be conferred. It was held, however, that such a power existed in the present case ; for that although it could not be inferred from the nature of the business of the Company, it was conferred by the above general words in the Memorandum and Articles : (Peruvian Railways Company v. The Thames and Mersey Marine Insurance Company ; Re Peruvian Railways Company, Law Rep. 2 Ch. App. 617.) See also Re Blakely Ordnance Company, Ex parte Mercantile and Exchange Bank, W. N. 1867, p. 147. Abandonment of Objects. The Court of Chancery wO not restrain a Company from doing a thing within the scope of its objects, on the groimd that, if the Com- 10 . The Companies Act, 1862. pany does that thing, the doing of it may incapacitate the Company from performing something else, which is also within the scope of its objects: (Syers v. The Brighton Brewery Company, 11 L. T. N. S. 560, Ch.) And it is not an abandonment of the objects of a Company if, where, being established for three or four purposes, it abandofis one and carries on the others, provided such abandonment does not alter the fundamental principle of the Company : {Th^ Norwegian Titanic Iron Company, 35 Beav. 223.) And where a Company is formed for working a patented machine, it is not ultra vires to purchase the patent : {Re British and Foreign Cork Company, Leif child's case, Law Eep. 1 Eq. 231; 11 Jur. N. S. 941; 13 L. T. N. S. 267.) (c) The amount of capital.'] — ^Preference shares have been declared illegal where no power to issue them has been given by the Memo- randum or Articles of AsEOciation, and it seems that the issue of such shares when opposed to the Memorandum of Association, constituting the basis of the Company, cannot be rendered legal by any exercise of the power conferred by sect. 55 of this act to alter the regulations contained in the Articles of Association : (Hutton v. TTie Scarborough Cliff Hotel Company, Limited, 34 L. J. X. S. 643 ; 11 Jur. N. S. 551, Ch., on appeal.) See also Moss v. Syers, 32 L. J. 711, Ch., post. (d) The number of shares he takes.] —As to the consequences of so subscribing the Memorandum of Association, see sect. 23, infra, and the decisions upon it, especially Re South Blackpool Hotel Company, Migotfs case (Law Kep. 4 Eq. 238 ; 36 L. J. 531, Ch. ; 16 L. T. N. S. 271), Re London, Hamburg, and Continental Exchange Bank, Evans's case (Law Kep. 2 Ch. App. 427 ; 36 L. J. 601, Ch. ; 16 L. T. N. S. 252), and Re London and County Coal Company, Bennett's case (16 L. T. N. S. 475, Ch.) As to signing the Memorandum of Association for paid-up shares when it makes a distinction between shares generally and paid-up shares, and when no such distinction is made, see Re South of France Company, Baron de BeviUe's case, Law Rep. 7 Eq. 11, post. 9. Memorandum of Association of a Company limited by guarantee. — Where a Company is formed on the principle of having the liability of its members limited to such, amount as the members respectively undertake to contri- bute to the assets of the Company in the event of the same being wound-up, hereinafter referred to as a Company limited by guarantee, the ]\lemorandum of Association shall contain the following things ; (that is to say,) (1.) The name of the proposed Company, with the addi- tion of the word " limited " as the last word in such name : (2.) The part of the United Kingdom, whether England, Scotland, or Ireland, in which the registered office of the Company is proposed to be situate : Memorandum of Association. 11 (3.) Tlie objects for wliicli the proposed Company is to be establisbed : (4.) A -declaration that each, member undertakes to con- tribute to the assets of the Company, in the event of the same being wound-up during the time that he is a member, or within one year afterwards, for pay- ment of the debts and liabilities of the Company contracted before the time at which he ceases to be a member, and of the costs, charges, and expenses of winding-up the Company, and for the adjustment of the rights of the contributories amongst them- selves, such amount as may be required, not exceed- ing a specified amount. 10. MemoranduTn of Association of an unlimited Company. — ^Where a Company is formed on the principle of having no limit placed on the liability of its members, hereinafter referred to as an unlimited Company, the Memorandum of Association shall contain the following things ; (that is to say,) (1 .) The name of the proposed Company : (2.) The part of the United Kingdom, whether England, Scotland, or Ireland, in which the registered office of the Company is proposed to be situate : (3.) The objects for which the proposed Company is to be established. 11. Stayrvp, signature, and effect of Memorandum, of Asso- ciation. — The. Memorandum of Association shall bear the same stamp as if it were a deed, {a) and shall be signed by each subscriber in the presence of, and be attested by, one witness at the least, and that attestation shall be a sufficient attestation in Scotland as well as in England and Ireland ; it shall, when registered, bind the Company and the mem- bers thereof to the same extent as if each member had subscribed his name and affixed his seal thereto, and there were in the Memorandura contained, on the part of himself, his heirs, executors, and administrators, a covenant to observe all the conditions of such Memorandum, subject to the provisions of this act. (a) The same stamp as if it were a deed."] — The deed stamp is XI. 15s., where there are less than thirty folios ; where there are thirty folios or upwards, the duty is 11. 15«. for the first fifteen folios, and a further ■progressive duty of 10«. for every fifteen folios over and above that wamJaet. 12 The GoTrvpcmies Act, 1862. 12. Power of certain Companies to alter Memorandum of Association. — Any Company limited by shares may so far modify the conditions contained in its Memorandum of Association, if authorised to do so by its regulations as originally framed, or as altered by special resolution in manner hereinafter mentioned, (a) as to increase its capital(&) by the issue of new shares of such amount as it thinks ex- pedient, or to consolidate and divide its capital into shares of larger amount(c) than its existing shares, or to convert its paid-up shares into stock, but, save as aforesaid, and save as is hereinafter provided in the case of a change of name, no alteration shall be made by any Company iu the con- ditions (f^) contained in its Memorandum of Association (e). (a) As altered by special resolution in manner hereinafter mentioned^] — Sect. 50 of this act provides for altering the regulations contained in the Articles of Association. (6) To increase its capital, Sfc. — By sect. 9 of " The Companies Act, 1867," post, a Company has now power, under certain conditions, to reduce its capital also. (c) Shares of larger amount, ^c] — Before " The Companies Act, 1867," a Company had no power to subdivide its shares into others of smaller amount (see Re Financial Corporation, Ex parte Holmes and others. Law Rep. 2 Ch. App. 714), but the power to do so is now given by sect. 21 of that act : (see, post.^ (d) No alteration shall be made by any Company in the conditions, §-c.] — See sect. 8 of "The Companies Act, 1867," as to making the liability of directors unlimited. (e) Memorandum of Association. — As to power of altering or depart- ing from conditions contained in the ^Memorandum of Association, see Hutton V. The Scarborough Cliff Hotel Company, 11 Jur. N. S. 551, Ch., on appeal ; 12 L. T. N.'S. 228, 229 ; 34 L. J. N. S. 643, post. 13. Power of Gompanies to change naine.] — Any Com- pany under this act, with the sanction of a special resolution of the Company (a) passed in manner hereinafter mentioned, and with the approval of the Board of Trade, testified in writing, under the hand of one of its secretaries or assistant secretaries, may change its name, and upon such change being made the registrar shall enter the new name on the register (6) in the place of the former name, .and shall issue a certificate of incorporation altered to meet the circum- stances of the case ; but no such alteration of name shall affect any rights or obligations of the Company, or render defective any legal proceedings instituted or to be instituted by or against the Company, and any legal proceedings may be continued or commeuced against the Company by its new Articles of Association. 13 name tliat might have been continued or commenced against the Company by its former name. (a) A special resolution of the Company.'] — For the manner of passing a special resolution, see sects. 51 and 52, infi-a. (b) The registrar shall enter the new name on the register, §-c.] — The change of name is not complete until it has been made on the register, and a certificate of incorporation, altered to meet the circumstances of the case, has been issued by the registrar. Until that certificate has been obtained the corporation does not exist by its new name, but is considered as still existing under its original name. On the 18th of July, 1867, a Company duly passed a resolution to change its name, which resolution was confirmed on the 9th of August. On the 23rd of August the directors made a call in the old name of the Company. On the 7th of September the approval of the change of name by the Board of Trade was obtained, and on the 13th notice of the call in the new name was given to the shareholders. On the 81st of December, 1867, an action in the old name was brought against a share- holder, who knew of the proposed change of name, to recover the amount of the call. The certificate of incorporation in the new name was not issued until the 13th of February, 1868. It was held that the action was properly brought in the old name of the Company, and that the notice of call in the new name was sufiicient, as it, in fact, gave the defendant notice that the call had been made : (^Shackleford, Ford and Co. v. DangerfM, lb. v. Owen, Law Rep. 3 C. P. 407.) AETICLES or ASSOCIATEON. 14. Regulations to he prescribed hy Articles of Association. — The Memorandum of Association may, in the case of a Company, limited by shares, (a.) and shall, in the case of a Company limited by guarantee or unHmited, be accompanied, when registered, by Articles of Association signed by the subscribers to the Memorandum of Association, and pre- scribing such regulations for the Company as the subscribers to the Memorandum of Association deem expedient : [h] The articles shall be expressed iu separate paragraphs, numbered arithmetically : They may adopt all or any of the provisions contained in the table marked A. in the first schedule hereto : They shall, in the case of a Company, whether limited by guarantee or unHmited, that has a capital divided into shares, state the amount of capital with which the Company proposes to be registered ; and in the case of a Company, whether limited by guarantee or unlimited, that has not a capital divided into shares, state the number of members with which the Company proposes to be registered, for the purpose of enabling the registrar to detej-mjne the fees payable on registration : In a Company limited by guarantee or unHmited, and having a capital divided into shares, each subscriber shall take one share at the least. 14 The Companies Act, 1862. and shall write opposite to his name in the Memorandum of Association the number of shares he takes. (a) A Company limited by shares.'}— The promoters of a Company- limited by shares may proceed in any one of three ways : 1. By a simple Memorandum of Association, without any Articles of Association annexed, in which case the Company will be governed by the regulations in Table A. 2. By accompanying the Memorandum of Association with Articles of Association, adding to or altering the regiilations in Table A. 3. By accompanying the Memorandum of Association with Articles of Association expressly and in terms excluding the regulations in Table A., but embodying such of them as may be desired, altering some and adding others, so that the Compa,ny may be wholly governed by the Articles of Association, without any further reference to the regulations in Table A. (6) Such regulations for the Company, Sfc.'] — Power to alter the regulations contained in the Articles of Association or in Table A., where such table is applicable, is given by sect. 50, infra. The Articles of Association may be said to be the Companies' rules of internal government : (ije Cachar Company, Lawrence's case, Law Rep. 2 Ch. App. 424.) The shareholders are bound by what the Articles contain, and it is therefore their interest to make themselves acquainted with the Memo- randum and the Articles as speedily as possible. Shareholders bound to know Contents of Articles. In the case of Barned's Bank, Ex parte Peel (Law Rep. 2 Ch. App. 684), Cairns, L. J. expressed himself as follows : — " It is the bounden duty of a person to ascertain, at the earliest practicable moment, what is the charter or title deed under which the Company in which he has agreed to become a shareholder is carrying on business. I think he ought to be held bound to look to the Aleraorandum and Articles of Association before he applies for shares. But even when the Memo- randum and Articles of Association are not in existence at the time, I think, at the very latest, when he receives his allotment of shares, he ought to satisfy himself that there is nothing in the Memorandum or Articles of Association to which he desires to make any objection." See also Oakes v. Tiirquand, Re Ooerend, Giirney and Co. (Law Rep. 2 H. L. 3.52), where Chelmsford, L.C. expressed his approval of these views of Lord Cairns. As the Master of the Rolls said in a case where shareholders sought to impute misconduct to the directors and manager of a Company, " Every shareholder is bound to know the Articles of Association, and he cannot complain of anything disclosed by them, which, if he does not know, he might know, and ought to know ; " and, further added, alluding to large remuneration to the projector and directors provided for by the Articles of Association, "this is all fair and open, and if the public subscribe to Companies conducted by persons receiving this remuneration they cannot afterwards complain": (He Anglo-Greek Steam Naiignlinn Company, Law Rep. 2 Eq. 1 ; 85 Beav. 399.) See also /?,■ Peninsular, West Indian, and Southern Bank, Dixon's case, (W. N. 1867, p. 63), as to subscribers to a Company being afFected widi notice of what appears in the Artioles. Articles of Association. 15 The case Re General Exchange Bank (W. N. 1868, p. 193) exemplifies this phase of the responsibility of shareholders, as also the consequences of their ratifying or acquiescing in agreements that might be originally invalid. 77ie Public bound to notice Contents of Articles. Persons dealing with a Company whose regulations are registered, are bound to take notice of them as well as of the provisions of the act imder which the Company is constituted. Lord Wensleydale, speak- ing of a Company registered under 7 & 8 Vict. c. 110, said, "If they do not choose to acquaint themselves with the power of the directors it is their own fault; and if they give credit to amy unauthorised persons, they must be content to look to them only and not the Com- pany at large. The stipulations of the deed which restrict and regu- late their authority, are obhgatory on those who deal with the Com- pany ; and the directors can make no contract so as to bind the whole Company of shareholders, for whose protection the rules are made unless they are strictly complied with. The contract binds the person making it, but no one else:" C Ernest v. Nicholls, 6 Ho. Lords Cas. 419.) See also Agar v. Athenseum Life Insurance Society, 3 C. B. N. S. 725 ; London Dock Company v. Sinnoit, 8 E. & B. 347 ; and Balfour v. Ernest, 5 C. B. N. S. 601. But where in any transaction the powers of a Company as shown by its Articles are not exceeded, and the requirements of the Company's regulations have prima facie been compHed with, the cases go to show that parties dealing with the Company are not bound to see that these powers are exercised with strict regularity, or that all formalities and conditions are complied with, " into which, if it were necessary to make such inquiry, it would be impossible for the Company to carry on the business for which it was formed" : (see The Royal British Bank v. Tur- miand, 5 El. & Bl. 248, and 6 lb. 327 ; 25 L. J. Q. B. 317 ; 2 Jur. N. S. 663 ; Clarke v. Tlie Imperial Gas Light and Coke Company, 4 B. & Ad. 315 ; Hill v. The Manchester and Salford Waterworks Company, 5 B. & Ad. 866 ; Smith v. Hull Glass Company, 11 C. B. 897 ; The Prince of Wales Assurance Society v. The Athenaium Insurance Society, 3 C. B. IS. S. 756, note. But see Darcy v. The Tamar, Kit Hill, and Collington Railway Company, Law Eep. 2 Ex. 158. In equity, see Ex parte the Eagle Company, 4 Kay & J. 549 ; The Anglo-Australian Life Insurance Company v. The British Provident Fire and Life Assurance Society, 3 Giff. 521 ; varied on appeal, 8 Jur. N. S. 628.) Where, however, a person is aware that directors or agents are acting irregularly in a transaction with him, he cannot hold the Company bound: (Balfour v. Ernest, 5 C. B. N. S. 601.) Contracts contained in Articles. A Company is not bound by an agreement entered into before regis- tration unless such agreement is expressly made binding by the Articles ^ee Pilbrow v. Pilbrow's Atmospheric Railway Company, 6 C. B. 440 Parsons v. Spooner, 5 Ha. 102 ; Wilkins v. Roebuck, 4 Drew. 281 HopUnson's case, 7 De G. M. & G. 193; Terrel v. Hutton, 4 Ho. Lords Cas. 1091 ; Gunn v. London and Lancashire Fire Insurance Company, 12 C. B. N. S. 694.) When an agreement is contained in the Articles, all persons entering the Company are bound by it ; but when an agreement is so 16 The OoDijpanies Act, 1862. stated the whole of it should be substantially set forth, and there ought to be no reservation or sub-agreement which is concealed from the public. The Articles of Association of a banking Company, with a nominal capital of 1,200,000/., in 60,000 shares, of which the prospectus stated that the first issue would be 30,000, empowered the directors to com- mence business as soon as they thought fit, notwithstanding the -whole capital might not have been subscribed for ; and provided that upon the first allotment of shares 10,000Z. should be paid to the promoters. Six weeks after the formation of the Company, 5319 shares only having been subscribed for, of which 800 were subscribed for by four directors, the directors allotted the shares, and paid 5000Z. to the promoters, of which 2000Z. was, in pursuance of an agreement made before the formation of the Company, but not noticed in the Articles of Association, applied in paying the deposits on the 800 shares of the four directors : it was held, that the concealment of the agreement between the promoters and the four directors released the shareholders from their contract with the promoters contained in the Articles, and also that, in making the allot- ment of shares, the directors could not, under the circumstances, be considered to have exercised their discretion bona fide. ; and on these grounds a claim by the promoters in the winding-up of the Company for the balance of the 10,OOOZ. was disallowed : {Re Madrid Bank, Ex parte Williams, Law Rep. 2 Eq. 216 ; 35 L. J. 474, Ch. ; 14 L. T. N. S. 456.) See also Re General Exchange Bank, Preston's case (W. N. 1868, p. 193 ; 16 W. R. Ch. 1097), post, as to a partial concealment of an agreement from shareholders. The Articles of Association of a Company authorised the directors to confirm and adopt any contracts previously entered into on behalf of the Company, and also provided that the office of director should be vacated by a director being concerned in, or participating in, the profit of any contract with the Company. A projector of the Company, who was also one of the original directors, entered, as the attorney of his son, into an agreement to sell to the Company an estate in accordance vrith terms of agreement made previously to the incorporation of the Company. On the winding-up of the Company he claimed the balance of the purchase -money of the estate. It tiu-ned out that he was himself beneficial owner of it, a fact known, as he alleged, to aU the directors, but unknown to a large number of the shareholders vmtU the winding- up. It was held, that the judgment could not be enforced. If it was understood that the director was beneficially interested in the contract, it would have been vaUd ; but here many of the shareholders knew nothing of it ; and a contract between a Company and a director could not stand when questioned by those who had no notice of the true position of the director : {Re Central Darjcelinq Tea Company, Ex parte Cornish, W. N. 1867, p. 147.) f n^ f As to directors claiming, under Articles of Association, remuneration for their services, see Orton v. The CUveland Firebrick and Pottery Company njm: N. S. 531, Ex. ; and The English and Irish Bank v. Gray, 15 Ir. Com. Law R. 538. I>irectors. When the Articles of Association do not prescribe the number of directors required to constitute a quorum, the number who usually act in conducting the business of the Company will constitute a quorum : and a forfeiture of shares by two out of six directors has been held Articles of Association. 17 valid : (Re Tavistock Ironworks Company, Lyster^s case, Law Rep, 4 Eq. 233.) But, where the deed of settlement of a Company provided that the directors should allot shares not subscribed for in such manner as they should deem best, and three directors were to form a quorum, it was held that a delegation of the power to two of their number and the manager was invalid : (Re Leeds Banking Company, Howard's case, 36 L. J. N. S. 42, Ch. ; Law Rep. 1 Ch. App. 561.) But see Totterdell V. Fareham Brick Company (Law Rep. 1 C. P. 674), post. See also Re Regent's Canal Iron Company (W. N. 1867, p. 79) as to directors executing deeds of assignment on behaJf of the Company ; and Re Fresh Provision Preserving Company, Worcester's case (W. N. 1867, p. 62). See aisoDarcy v. The Tamar, Kit Hill, and Collington Railway Company (Law Rep. 2 Ex. 158), />os<, with regard to directors acting together and as a board. Where Articles of Association of a Company formed for the working of coUieries provided that the business of the Company should be carried on under the management of the board of directors, and that the board, in addition to the powers and authorities by the statutes, and by those presents expressly eonferred upon them, might execute all such agree- ments, and generally do all such acts and things as were by the statutes and those presents directed or authorised to be executed or done by the Company in meeting, &c., it was held that the directors were authorised to make a contract with an engineer for the erection of a pumping engine and machinery, and that this Act did not require it to be under seal : (The South of Ireland Colliery Company v. Waddle, Law Rep. 3 C. P.463.) Where a clause in the Articles of Association provided that the directors might, with the consent of am extraordinary general meeting, "transfer and sell the business of the Company, or purchase or amalga- mate with the business of any other Company of a like nature," it was held that the above clause, even if it authorised the directors, with the consent of an extraordinary general meeting, to dispose of all the assets of the Company, yet was not sulficient to empower them with such consent to compel a dissentient shareholder to become a member in a new Company with more extended objects, nor, it would seem, in any new Company at all : (Re Empire Assurance Corporation, Ex parte Bag- show, Law Rep. 4 Eq. 341 ; 36 L. J. Ch. 663 ; 16 L. T. N. S. 346.) Articles may authorise the absorption by a Company of other Com- panies without permitting the Company to be absorbed itself. The M. Bank, having for its objects (inter alia), as stated by its Memorandum of Association, " the subscribing for, or taking shares in, the entering into treaty, acting, or uniting with, the buying up or absorbing any other Company, whether British or foreign, carrying on any busiaess included among the objects of the Company, and the sale or transfer of the business of the Company or any part thereof, to any Company or individuals," agreed by its directors to be voluntarily wound-up and amalgamated with the B. Bank. This agreement was confirmed, in accordance with the Articles of Association, at a general meeting of the shareholders. Subsequently, on the B. Bank being wound-up, the liqui- dators applied to the court to have the name of D., a shareholder ia the M. Bank, placed on the list of contributories. D. had never assented to the amalgamation ; never applied for, or been allotted any shares in, and had never been entered on the register of, the B. Bank. It was held, that, inasmuch as the power given to the directors of absorbing other Companies did not extend to the abaomtion of the Company itself. 18 The Companies Act, 1862. the old business of the M. Bank had been extinguished by the amal- gamation, and D. was not a contributory : (Re Lowlon, Bombay, and Mediterranean Bank, Drew^s case, 16 L. T. N. S. 657, Ch.) See also Hie Imperial Bank of China, hulia, and Japan v. Bank of Hindustan, China, and Japan (Law Rep. 6 Eq. 91, post) ; and Chnch v. The Financial Corporation (Law Rep. 5 Eq. 450), confirmed on appeal (W. N. 1868, p. 246). Where Articles of Association provided that any director who should accept or hold any other office under the Company than that of manager, should thereupon be disqualified from being, and should cease to be, a director, it was held that A., who had been appointed secre- tary at a salary, and whilst secretary was elected director, and appointed upon a committee to exercise certain powers of a director, and who from the time of his election received salary as a committeeman, but ceased to receive salary as secretary, though he continued to perform aU the duties of the office, did not hold an " office " under the Company so as to disqualify him from being party as a director to the maMng of a call : {The Iron Ship Coating Company, Limited, v. Blunt, Law Rep. 3 C. P. 484.) The duties of the agent of a limited Company being in the nature of personal service, and as such incapable of being enforced in equity, the court refused to restrain the directors from acting upon or enforcing the resignation of A., whose management and agency were made prominent conditions in the prospectus on the formation of the Company, and expressly provided for by the Articles of Association. In refusing to grant the injunction, the court put the directors upon an undertaking not to take advantage, in proceedings at law to recover the amount due on A.'s shares, of his resignation, which was alleged by him to have been wholly conditional on his being relieved from aR liability in respect of his shares : (Mair v. Himalaya Tea Company, Law Rep. 1 Eq. 411 ; 11 Jur. N. S. 1013 ; 13 L. T. N. S. 586.) Where articles require directors to hold a certain number of shares, it seems that directors, voting to themselves gratuitously the number of shares required as a qualification, will, on the winding-up of the Company, be rendered Uable to the full amount of such shares : (Re Imperial Silver Quarries Company, 16 W. R. 1220.) Where articles empowered directors to purchase out of the funds of a Company, upon such terms as they should think fit, shares of the Company from persons willing to sell, it was held on a winding-up that directors who had so purchased shares should be placed on the list of contributories, although they were mere trustees for the Company, but that they were entitled to a declaration that they had a right to be indemnified out of the assets of the Company, in respect of all payments made or to be made by them on acco\mt of these shares : (Re Universal Banking Corporation, Ex parte Chaltis and others, 17 L. T. N. S. 637 : W. N. 1868, p. 63.) By the Articles of Association of a joint-stock bank it was provided that the directors should be entitled to set apart and receive for their remimeration in each and every year, commencing from the incorporation of the Company, a sum not exceeding 4000^., and to divide the same among them as follows : namely, three-fourths to be paid to and divided amongst the directors forming the board in London, as they should from time to time determine, and the remaining one-fourth thereout should be allowed to and divided amongst the directors forming the said board in Dublin, as they might from time to time determine. The Articles of Association. 19 defendant was appointed a Dublin director, and acted as Buch for two years, and at the time of his appointment a deed of covenant was entered iato between him and the Company, by which he coyenanted " to act and fill the position of one of the local board of directors in Dublin, at the scale of remuneration provided by the terms and Articles of Agreement of the said Company." There was one other director of the Dublin board. The board of directors never set apart any sum for the remuneration of directors. An action having been brought against defendant, for a debt alleged to be due by him to the Company, he set off his claim for remuneration of his services as a director : it was held that there having been no setting apart of a fund for this purpose, the said claim did not arise : {The English and Irish Bank v. Gray, 15 Ir. Com. Law R. 588.) Where the declaration in an action alleged that the defendants were a Company, incorporated under " The Joint-Stock Companies Act, 1856," and that by the Articles of Association it was agreed that each director should receive 501. per annum, without naming any fund out of which it waa to be paid, it was held, nevertheless, that the action was well brought against the Company by the plaintiff, and ex-director: (Orton V. The Cleveland Fireirick and Pottery Company, 11 Jur. N. S. 531, Ex.) See further as to directors whether regarded as agents or trustees, the note under sect. 18, infra. By sects. 45 and 46, infra. Companies imder this act not having a capital divided into shares, are bound to send a list of their directors to the Registrar of Joint-Stock Companies. Powers of Borrou-ing. By sect. 43, infra, every limited Company under this act is bound to keep a register of all mortgages and charges specifically affecting the property of the Company. Where a limited Company was registered under a Memorandum of Association, but had no special articles, a special resolution of the shareholders was held a sufficient authority to empower the directors to borrow money on debentures: (Bryon v. The Metropolitan Saloon Omnibus Company, 3 De G. & J. 123 ; 27 L. J. Ch. 685.) As to a claim against a Company by a director for money expended by liim on account of the Company, where the amount of such money was in excess of a sum named in the articles as the limit beyond which the directors were not empowered to borrow, see Re Cefn Cilcen Mining Company, W. K. 1868, p. 295. If the directors have power to do whatever the Company itself can do, this, as a general rule, includes the power of borrowing : (Australian Auxiliary Steam Company v. Mounsey, 4 Kay & J. 733.) Where the articles of a Company regulate the power to borrow, their requirements must substantially be complied with in order to bind the Company. One clause in Articles of Association provided that the Company, in extraordinary special general meeting, might authorise the borrowing of such sum or sums of money, and on such terms and conditions as they might tliink fit. Another clause provided that the directors might borrow such sums as they thought fit, but not above 10,000Z., unless borrowing a larger amount should have been previously authorised by a general meeting. It was held that the former clause did not restrict the latter, and that a borrowing to the extent of 30,000?., authorised by an ordinary general meeting, was vaUd. The directors of the same Company 20 The Gompanies Act, 1862. borrowed 5000;. from A. B. under a written agreement, one of the terms of which was, that 2000 mortgage bonds of 50Z. each, " forming part of 25,000/. of mortgage bonds constituting a first charge on the property of the Company," should be deposited with A. B. as collateral security for the sum, which was secured by two promissory notes of 25001. each : and it was held that as the directors had power to charge the property of the Company, and the intention to create the charge appeared from this agreement, a valid charge was created, though the mortgage bonds were invalid through incompleteness. The directors afterwards borrowed a further simi of 2700Z. from A. B., and deposited with him other incomplete mortgage bonds, with a letter stating that they were deposited " as collateral security for our promissory note for 2700'., the securities to be held on same terms and conditions as those under agree- ment with reference to the two previous notes of 2500Z. each." It was held, that there was a valid charge for this sum also : (ife The Strand Music Hall Company, Ex parte The European and American Finance Corporation, 3 De G. J. & S. 147, on appeal.) Debentures issued by a Company under a general power of borrowing in part discharge of existing debts are valid : (Ue Inns of Court Hotel Company, Law Eep. 6 Eq. 82.) Where bankers advanced money to the contractor for the works of a Company for the piupose of completing those works, and the contractor and the Company then mortgaged the plant, &c., and the property of the Company to the bankers to secure the moneys advanced and further advances, but the Company afterwards filed a bUl to set aside the mortgages as being ultra virex the Company, and as having been improperly obtained from them by the bankers, it was held that, having regard to the Ar+icles of Association of the Company, and the evidence in the case, the bUl must be dismissed, but without prejudice to another being filed to establish the mortgages as security for moneys actually due : (The Crewer and Wheal Abraham United Mining Company v. Williams, 14 L. T. N. S. 93, Ch.) Debentures. Debentures are either tovenants to pay or mortgages under the Com- pany's seal. When given to secure money borrowed, their validity depends on the power of the Company to borrow. The burden of showing the invalidity of such instruments rests on the party impugning them, and they are binding on the (^Jompany, although the directors have not compUed with the regidations of the Company relating to such securities : {Agar v. Athemeum Insurance Society, 3 C. B. N. S. 725 ; Magdalena Steam Navigation Compant/, 6 Jur. N. S. 976 ; Royal British Bank v. Tnn/unnd, 5 E. & B. 248 ; and 6 lb. 327.) A debenture purporting to be an assignment of " the imdertaking, and all the real and personal estate " of the Company by way of mortgage, to secure the repayment of a sum of money at a future date, has been held to create a valid charge on all the personal estate of the Company existmg at the date of the debenture, but not on subsequently acquired personal estate : (A.'u, Chjdach Sheet and Bar Iron Company, Law Eep. A ^'^' >.m"-' debentm-es of tlie Marine Mansions Compani/, Law Rep. 4 Jiq. 601, expressly extended to subsequently acquired property, and were therefore distinguisliable from those in question m the cases last cited. Certain debentures were issued by a Company, whose object was "to erect, purchase, take on lease, &c., and to sell, let, exchange, and obtain Artides of Association. 21 freehold and leasehold house property, hotel buildings, land, furniture," &c., and to furnish such hotels. One of the powers conferred on the directors by their registered deed of association was "to borrow on mortgage or debenture bonds any sums necessary for carrying on their business." The debentures so issued contained a declaration that the Company thereby pledged " the property belonging to them for the time being, during the subsistence of the debenture, with all the buildings and stock on and connected with their said property and all the receipts and revenues to arise therefrom." The amount of such debentures was held to be a first charge upon all the property and effects of the Company which belonged to them at the date . of the order to wind-up such Company : (Re Marine Mansions Company, lb. ; 17 L. T. N. S. 50, Ch.) B. and D. agreed in writing with the promoter of a Company to sell their business to the Company when formed, part of the purchase- money to be paid in debentures of the Company, payable ,to the bearer. The Articles of Association adopted this agreement, and directed it to be carried into effect. The directors, accordingly, gave to B. and D. deben- tures under the seal of the Company, by each of which the Company covenanted to pay the sum therein mentioned to "B. and D., their executors, administrators, and assigns, or to the bearer herseH." Some of these debentures were passed by delivery to Z., who was a bona-fde holder for value. It was held, by Eolt., L.J., that although the deben- tures could not at law be sued upon by the bearer in his own name, and it was questionable whether they were good at law as bonds or not, yet, that as they were conformable to the agreement between B. and D. and the promoter, which had been made binding on the Company by the articles, an effect must be given to them in equity accor(hng to their tenor. It was held, accordingly (affirming the decision of the Master of the EoUs), that in the winding-up of the Company, Z. could prove on these debentures in his own name, without being subject to any equities existing between the Company and B. and D. : (Re Blakely Ordnance Company, Ex parte New Zealand Banking Corporation, Law Rep. 3 Ch. App. 154.) A Company gave to C. debentures, by each of which the Company imdertook to pay to " C, or to his executors^ administrators, or trans- ferees, or to the holder for the time being of this debenture bond " the sum therein mentioned, with interest. These debentures were given in pursuance of an agreement which provided that part of the price of land sold by C. to the Company should be paid in debentures bearing interest, but did not say anything about the form of the debentures. It was held that there was nothing in the debentures to take them out of the ordinary rule that the assignee of a chose in action takes it subject to all the equities between the original parties to the contract; and that the holders of these debentures^ould only prove on them subject to all equities between the Company and C. Re Blakely Ordnance Company (Law Rep. 3 Ch. App. 154) was distinguished on the grovmd that it mainly turned on the terms of the Articles of Association : (Re Natal Investment Company, Claim of the Financial Corporation, Law Rep. 3 Ch. App. 355.) Debentures issued by a Company under a general power of borrowing in part discharge of existing debts are valid ; (Re Inns of Court Hotel Company, Law Rep. 6 Eq. 82.) In that case the directors, being em- powered to issue debentures and to borrow money " upon mortgage or otherwise," issued mortgage debentures. Some of these were issued in fulfilment of contracts with tradesmen, whereby they agreed to furnish 22 The Oompcmies Ad, 1862. goods to the Company on being paid partly in cash and partly in debei tures. Others were issued to the tradesmen as security for their cai balances. Giffard, V.C., held that the debentures were not invaJidati by reason of their having been issued in part satisfaction of existh debts. His Honour observed, " I do not see how a distinction can 1 drawn between the case of a creditor having simply given him a cheqi or received a debenture, and the case where a sum of money which actually due to the creditor has been turned into a loan to the Cor pany;" and his Honour distinguished the case before him from th of The West Cornwall Railway Company v. Mowatt (12 Jur. 407), < the ground that the latter case turned upon the fact of one of tl directors having some interest in the contract, which was consequent void. Debentures issued by directors in fraud of their shareholders to person having notice of the fraud are not only invalid in his hands, b also in those of subsequent hona-fide holders for value without noti of the fraud : (Athenasum Life Insurance Society v. Pooley, 1 Giff. 101 3 De G. & J. 294.) But if there is no limit set by statute an excessive exercise of tl power to borrow, it is probable, would be held valid in favour of a hotii fide lender without notice. And even where there is a statutory limi say to the amount of 10,OOOZ., and there is a simultaneous issue of d bentures to the amount of 15,000Z., it is also probable that all, ev< those ultra vires, would be held vaUd, in favour of hona-fide lenders wit] out notice of the invaHdity. By " The Mortgage Debenture Act, 1865" (28 & 29 Vict. c. 78), pot faoifities are given for the issue of transferable mortgage debenture upon certain terms and conditions, by Companies under this act th; are restricted by their Memorandam of Association to the objects - advancing money on real securities, and of borrowing money on tran ferable mortgage debentures, or on real secmties. In Hopkins v. Worcester and Birmingham Canal Proprietors (La Rep. 6 Eq. 437), the holder of a debenture of the form prescrib( by the Company's Act was held to be entitled, upon non-payme; by the Company, after six months' notice, of the principal mom secured by the debenture, to a receiver, although there was nc and never had been, any arrear of interest, and although none of tl debenture holders refused, and others might not be able, to consent i be paid off, " I have no hesitation in saying," says Giffard, V.C, in th case, "that where an appUcation of this kind is made by a credit whose principal is due, and who has given six months' notice, for hi to have a receiver appointed is ex debito Justitix. Mortgage of future Calls. Future calls, which, under the deed of settlement of a society, are be made when it shall appear to the directors necessary or expediei cannot be validly mortgaged under a provision in the deed of settlemei authorismg the directors to borrow on the security of the funds or pr perty of the society and to cause the funds or property on the security which any sum sliaJl be so borrowed, to be assigned, transferred, convey or surrendered by way of mortgage, to the person from whom su sums shall have been borrowed : (He The British Provident Life Assurar, Society Ex parte Stanley, 33 L. J. Ch. 535, on appeal.) Ji" .', n^ f »"Z j^^d by a Company including future calls, a King v. Marshall, 34 L. J. Ch. 163. Articles of Association . 23 See also Re Hnmber Iron Woj-ks Company, Ex parte Warrant Finance Company, 16 W. R. 667, on appeal. Billi of Exchange. The power of directors to issue bills of exchange or promissory notes is treated of fuUy under sect. 47, infra. See particularly Re Blakely Ordnance Company, Ex parte Mercantile and Exchange Bank (W. N. 1867, p. 147), Gordon v. Sea, Fire, and Life Assurance Company (1 H. & N. 599), Forhes v. Marshall (11 Exch. 166), Maclae v. Sutherland (3 E. & B. 1), Slark v. Highgate Archway Company (5 Taunt. 792), and -Thompson v. The Wesleyan Newspaper Company (8 C. B. 849). Power to issue Preference Shares. Preference shares cannot be issued unless specially authorised by the original constitution of the Company. Where the Articles of Associa- tion of a Company formed under " The Companies Act, 1856," contained no power to issue preference shares, and the Company in general meeting passed a resolution for the issue of some of the shares with a preferential dividend, the court, upon motion for injunction by three shareholders who had notice of, but did not attend, such general meeting, granted an injimction restraining the issue of such preference shares : (Hutton v. The Scarborough Cliff Hotel Company, 34 L. J. N. S. Ch. 643.) Where under the Articles of Association a Company was empowered at a special meeting to increase its capital by the issue of new shares, these to be of such nominal value and subject to such conditions as to payment of calls or proportion of profits, as might be determined, it was held that this did not authorise the issue of preference shares : (Moss v. Syers, 32 L. J. Ch. 711 ; 9 L. T. N. S. 252.) Forfeiture and Cancellation of Shares. A Company has no power to forfeit the shares of its members, unless such a power is expressly given by regulations of the Company ; and even a majority of shareholders in general meeting cannot confer it : (Re National Patent Steam Fuel Company, 4 Drew. 535 ; 28 L. J. Ch. 637 ; on appeal, 4 De G. & J. 46 ; Clarke v. Hart, 5 Jur. N. S. 447 ; 6 Ho. ' Lords Cas. 633 ; Ex parte Barton, 5 Jur. N. S. 420.) The prescribed mode of executing the power must be exactly com- plied with, and it must be exercised hona fide iai the purpose for which it was conferred. WTbiere a different course is pursued, the forfeiture may be impeached in a court of equity and invalidated : (Richmond's case and Painter's case, 4 Kay & J. 305 ; Harris v. North Devon Railway Company, 20 Beav. 384 ; Preston v. The Grand Collier Sock Company, 11 Sim. 827 ; and Re Agriculturists'' Cattle Insurance Company, Stewart's case, Law Kep. 1 Ch. App. 511.) With regard to the remedy at law, see Cockerell v. TTie Van Dieman's Land Company (18 C. B. 454 ; 2 Jur. N. S. 976), where an action for damages was brought against a Company for improperly withholding shares alleged to be forfeited. See also The Van Dieman's Land Com- pany V. Cockerell (1 C. B. N. S. 732) and Graham v. The Van Dieman's Land Company (1 H. & N. 541). A clause in articles that shares shall become absolutely forfeited on non-payment of calls does not enable shareholders to get rid of their shares by refusing to pay a call. In such a case the clause will be 24 The Oompardes Act, 1862. regarded as inserted for the benefit of the Company, and there is no forfeiture until a forfeiture is declared : (Moore v. Rawlins, 6 C. B. N. S. 289.) Where the Articles of Association of a Company provided that notice should be given to all members of the Company of every meeting, and that no other business except that specified in the notice should be transacted at such meeting, it was held that the forfeiture and cancel- lation of certain shares in pursuance of a resolution to that effect passed at a meeting convened by a notice containing no reference to the pro- posed cancellation of shares, was invalid, although the articles provided for the forfeiture and cancellation of shares : (iJe London and Mediter- ranean Bank, Wright's case, 17 L. T. N. S. 635.) By the articles of a Company, overdue calls were to carry interest at twenty-flve per cent., and by clause 50, it was provided that the for- feiture of a share should involve the extinction at the time of the forfei- tiu'e of all interest in, and all claims and demands against, the Company, in respect of the share, and all other rights incident to the share, but that the shareholder should, notwithstanding, be liable " to pay to the Company all calls owing on such share at the time of such forfeiture." It was held (aifirming the decision of the Master of the RoUs), upon the construction of the articles, that a member whose shares had been forfeited for non-payment of a call was liable to pay the call, but not any interest upon it. It was held, also, that interest was not payable under the stat. 3 & 4 Will. 4, c. 42, s. 28, there not having been given after the forfeiture any notice claiming interest on the sum made pay- able by the 50th clause of the articles : (Re BlaJcely Ordnance Company, Stocken's case. Law Rep. 3 Ch. App. 412.) It was also held by the Master of the Rolls in that case that the former owner of forfeited shares could not be placed on the list of con- tributories as a present member, in respect of the calls owing on his shares at the time of forfeiture : (Be Blakely Ordnance Company, NeedhanCs case, 'Law Rep. 4 Eq. 135). It follows from the same case that no person can be settled on the list of contributories as a past mem- ber until it has been actually ascertained that the present members axe unable to satisfy the contributions required to be made by them. Directors have, by Table A, clause 51, all the powers of the Com- pany, unless where there is a provision to the contrary in the Act or articles. But, as directors can have only the powers of the Company, it is clear that directors cannot, more than the Company, forfeit shares, unless that power is expressly conferred on them by the Articles of Association. Where shares have been forfeited by a valid resolution of directors, it IS immaterial that the name of the owner has not been removed from the register of members : (Re Tai-istock Ironn-orks Compam/, Lvster\<< case. Law Rep. 4 Eq. 233 ; 86 L. J. Ch. 616 ; 16 L. T. N. S. 824). In that case, however, Lyster's name was removed from the Company's " share 'eager, which the Company used as its "share register." A shareholder in a Company, being in a position to file a bill against tne Company to have his name removed from the register, wrote to the secretary dechmng to have anything further to do with the Company, and requesting that his deposit might be returned. The deposit wa^ returned, but his name remained on the register of shareholders. Th« m"<."°" ?\f ''r'if^*^'" Company was ordered to be wound-up. ^thnw .p°V*;''^^^°"l. ''"''' *-^^^ ^he shareholder was not a con- liiDutory : (He Jl,e Canadian Native Oil Company, Fox's case, Law Rep. Articles of Association. 25 6 Eq. 118.) This case is much stronger than Lyster^s case as to the immateriality of the name of the owner of a forfeited share continuing on the register once that the forfeiture is otherwise complete. Fifty shares in a Company were registered in the joint names of a father and son on their application, and they paid 1601. by way of deposit and allotment money. Shortly afterwards a call of 2Z. a share was made. The father became a director, and having, as he said, dis- covered that the Company was formed under circumstances of gross fraud, wrote to the chairman, warning the directors against involving the shareholders in any fresh liability. Shortly after he resigned his seat as director. Two months afterwards (the call being unpaid), the father wrote to the chairman, requesting the directors to declare the shares forfeited ; and said that he and his son must be satisfied that their names were taken off the register. A resolution was thereupon passed that the shares be forfeited ; but the names were not removed from the register of shareholders, and were on it when the winding-up order was made, more than a year afterwards. No steps were taken on one side to enforce the caU, or on the other to recover the deposit and allotment money. Upon summons by the official liquidator, that the names might be settled on the list of contributories, it was held that the so-called forfeiture of shares was void, and that the respondents' names must be placed on the list of contributories : {Re London and Provincial Starch Company, Gower's case, Law Rep. 6 Eq. 77.) Giffard, V.C., ruled thus in accordance with the decision in Barry's Representatives'' case (2 Drew. & Sm. 321). In fact, the forfeiture was a fictitious proceeding to enable the recalcitrant shareholders to separate from the Company; such as happened in Stanhope's case (Law Eep. 1 Ch. App. 161, 168), and in several other of the compromises entered into between the Agriculturist Cattle Insurance Company and some of its shareholders. But in the case of a regular forfeiture, it follows from Fox's case, ante, that it is not material that the name of the owner of the forfeited shares is not removed from the register prior to the winding-up of the Company. A shareholder in a Company received a notice that on non-payment by him of arrears of calls on a certain day, his shares " would be forfeited without further notice." He also knew that the question of winding-up the Company was imder consideration. Two days before the day appointed for the payment of the arrears, he went to the Com- pany's office, paid the arrears on a few of his shares, and took a receipt, saying that on the rest he would submit to a forfeiture. The directors, at a board meeting, five days afterwards, examined the hst of defaulters, and declared the shares of some of them, whom they considered as not solvent, to be forfeited ; but they did not declare the shares of this particular shareholder to be forfeited, and they continued to treat him as the holder of the whole nimiber of shares. The Articles of Associa- tion of the Company provided that " in the event of non-payment at the time and place appointed by the notice, any share might thereupon be forfeited without any further act to be done by the Company : it was held that the shares upon which the arrears were not paid-up were not absolutely forfeited by the non-payment, and that the Company's right of option remained ; and, as the Company had declared their intention of retaining the shareholder on the Ust, that he must, upon winding-up, be held to be a contributory in respect of his. fuU number of shares : (Re East Kongsberg Company, Bigg's case. Law Rep. 1 Eq. 309 ; 35 L. J. Ch. 216 : 12 Jur. N. S. 89 ; 18 L. T. N. S. 627.) 26 The Gompanies Act, 1862. The Articles of Association of a joint-stock Company provided that if a shareholder should fail in paying any call, the Company taight give him notice that in default of payment within a specified time his shares would be forfeited ; that if the requisitions of any such notice were not complied with, the shares might be forfeited by a resolution of the directors to that effect; that when any share had been so forfeited, notice of such forfeiture shoiild be given to such shareholder, and an entry should be forthwith made in the register of shareholders, stating the date of such forfeiture; and that any share so forfeited should become the property of the Company. K., a shareholder in the Com- pany, made default in payment of his calls, and notice was sent to him in due form that, unless he paid the calls by the 2nd of September, they would be forfeited. The time having elapsed without payment, the secretary made entries in the books on the 3rd of September that the shares were forfeited, and had been transferred to the Company. But there was no entry in the minutes of any resolution having been passed by the directors, nor any evidence of any notice of the forfeiture having been sent to K. : it was held (reversing the decision of the Vice- Warden of the Stannaries Court) that there was a valid forfeiture of the shares, and that K. could not be placed on the list of contributories as a member of the Company. As the entry of forfeiture on the books could not have been properly made without a resolution of the directors, the court was bound to assume that such a resolution had been passed. It was also held that the forfeiture was complete on the 3rd of September without sending a notice of it to the shareholders, the provision in the articles as to sending the notice being mandatory only, and not of the essence of the forfeiture: (Re North Halknheagle Mining Company, Knight's case, Law Kep. 2 Ch. App. 322 ; 15 L. T. N. S. 546.) Lord Justice Cairns, in this case, observed that WooUaston's case, infra, had decided " that a resolution of forfeiture woidd not be invalid in the eye of this court if made prospectively; that is to say, before the actual day arrived at which there was a default in payment of the calls." His Lordship then added with respect to the notice, " There is this very remarkable circumstance that the notice which is there to be given is spoken of as a notice of forfeiture which has actually taken place. Moreover, the forfeiture is clearly, on that clause, to date, not from the giving of any notice, but from a resolution of the directors declariag a forfeiture." These observations show the sound- ness of the principle on which the case was decided, viz., that the notice was a matter of form, and subsequent to the forfeiture. In Woollastpn's case (4 De G. & J. 437, on appeal ; 5 Jur. N. S. 617), W., in expectation of being appointed medical referee to an insurance Company, and being informed by the secretary that there would only be two referees, signed the deed of settlement for ten shares. A resolution was then passed by the directors that W. should be so appointed from the date of his signing the deed for 200 shares. W. signed the deed for the additional 190 shares. Afterwards discovering that there would be four referees instead of two, he resigned his oihce, and demanded back his deposit. The directors gave him notice that J he did not pay a call then made, his shares would be forfeited under a power to that effect given them by the deed. They never passed a resolution forfeiting the sh;ires. It was held by the Lords Justices (revering a decree of Kindersley, V.C), that the notice was a clear and direct forfeiture of W.'s shares, which forfeiture was submitted to by W. for two years, and that his name ought to be Articles of Association. 27 removed from the list of contributories. This case seems somewhat antagonistic to the general current of authorities with respect to forfeiture. The case is not unlike in principle to Bloxam's case, where notice of a particular fact was presumed on the part of a person in treating with directors. Forfeitures, however, are strictissimi juris ; and it would seem to be unsafe to rely upon the decision in Woollastori's case, except in precisely similar circumstances. Directors ■will be restrained by injunction for declaring shares to be forfeited for non-payment of caQs, until they have taken proper steps for enforcing payment of previous calls from other members (Preston V. Tlie Grand Collier Bock Company, 2 Rail. C. 335 ; S. C, 11 Sim. 327) ; and where they have wrongfully cancelled shares, a court of equity will, at suit of the holder, order the cancellation to be set aside : (Stubhs V. Lister, 1 Y. & C. C. C. 81.) So a wrongful forfeiture is void, and an account will be decreed as it it had not taken place : (Stubls v. Lister, 1 Y. & C. C. C. 81 ; Blisset V. Daniel, 10 Hare, 493 ; Hart v. Clarice, 24 L. J. Ch. 137.) It is a general rule of equity that any right (except in cases of fraud) may be barren by acquiescence. It is necessary, therefore, that a person injuriously affected by the forfeiture of shares should not acquiesce for a considerable period in such forfeiture, else he wiU be deemed to have submitted to the forfeiture. Omnis ratihabitio retrotraliitur et mandato priori sequiparatur : (Prendergast v. Turton, 1 Y. & C. C. C. 98; L. J. N. S. Ch. 22 ; 13 Ch. Cas. 268 ; Wbollaston's case, ante ; Re The Agriculturist Cattle Insurance Company, Brotherhood's case, 31 L.J. N. S. Ch. 861.) The directors of a Company had treated shares as forfeited for non- payment of calls, and credited the Company with the amount of the shares in a subsequent report. On a winding-up, Vice-Chancellor Wood held that the shareholder's name shoidd not be placed on the list of contributories on the apphcation of the official manager. Although a clause in the articles provided that the non-payment for three months of a call should involve, ipso facto, the f orfeitiu-e of the shares in question, yet, his Honour rested his judgment not so much on that clause as upon the ground that in fact the directors had exercised their right of for- feiture : (Be The State Fire Insurance Company, Webster's case, 32 L. J. N. S. Ch. 135.) The Agriculturist Cattle Insurance Company has been, unf ortimately for itself, a prolific source of decisions respecting forfeitures of shares. The chief cases of forfeiture under that Company were connected with compromises between the forfeiting shareholders and the directors. However, the law of forfeiture also has been amply illustrated by the cases decided with reference to that Company. Those cases are stUl strictly in point with cases under this act, where directors have the power to forfeit shares. The compromises entered into between the shareholders of the Agri- culturist Cattle Insurance Company and the directors 'were effected through the medium of a fictitious forfeiture. Such of these compro- mises as were communicated to the general body of the shareholders were held binding upon the Company ; whilst others, after the lapse of twelve years, were held to be void ab initio, on the ground that they were fictitious, and that not having been communicated to the Company the necessary foundation of notice to the Company was wanting to raise any case of acquiescence on their part : (see Stanhope's case, 14 W. R. 42 ; on appeal, lb. 266 ; Brotherhood's case, 31 L. J. N. S. 861 ; Lord Belhaven's case, 34 L. J. Ch. 503.) 28 The Companies Act, 1862. Forfeited shares may be disposed of afterwards by a general meeting, Regulations, Table A., cl. 20. The member stiU continues liable for aU calls then due by him, cl. 21 : (see Great Northern Railway Company V. Kennedy, 6 Rail. C. 5 ; 19 L. J. Ex. 11 ; Giks v. Hutt, 3 Exch. 18.) A power to forfeit does not imply a power to cancel the forfeited shares ; for that would diminish the capital of the Company : (Re Athenssum Life Assurance Society, 4 K. & J. 305.) See the next case, however, on that point. In December, 1866, the directors of a Company entered into a contract with M., one of the terms of which was that the Company would " forthwith " cancel all shares in the Company then standing in M.'s name which were not fuUy paid up. The contract was assented to by the Company in general meeting, and was in great part performed, but M.'s shares were not cancelled on the 13th of February following when resolutions were passed for a voluntary winding-up, which was afterwards continued under supervision. The articles of the Company provided that no contracts by the directors, to which the assent of the Company in general meeting should be given, should be afterwards impeached on any grounds whatever. M. filed a biU in equity for specific performance of the contract, and it was held that the agreement for the cancellation of the shares could not be impeached; and further, that M.'s name ought not to be on the list of contributories as a present member. An order was made to that effect, but without prejudice to any application that might be made to mate him a contributory as a past member : (Marshall v. Glamorgan Iron and Coal Company, Law Rep. 7 Eq. 129.) In his judgment Vice-Chancellor Giffard observed: "That part of the agreement (i.e., with regard to the cancellation) is fairly open to discus- sion ; but while it must be admitted on the one hand that the ordinary powers usually conferred on directors and meetings of shareholders do not authorise the cancellation of shares, it must be equally admitted on the other that provisions for the forfeiture of shares are usual, and, if duly and bond fide called into operation, perfectly legal. The same also must necessarily be the result and effect of provisions for tlie cancellation of shares, if provisions there be which authorise anything of the kind." His Honour added, in answer to one of the arguments used: "Can- cellation of shares is no more in reduction of capitel than is forfeiture of shares." Lien of Company on Shares. Where the articles of a Company provide that the Company shall have a lien on the shares of its members for all moneys which may be due from them to the Company, the lien so created will be available against all persons claiming shares under a member indebted to the Company; (Ex parte Pla7it, 4 D. & C. 160.) A banking Company, by its articles, had a first and paramount hen upon the shares of any shareholder " f or aH moneys due to the Com- pany from hun." The bank held bills of a shareholder for a debt due to it. It was held that the amount of the bills was, before they arrived at maturity, " moneys due to the Company," for which it had a hen on the shares, though the remedy for recovering the amount was postponed, and that, therefore, the lien of the bank had priority over a chartic created on the shai-es by the shareholder before the bUls m-nvedatiuaturity: (lie The London, Birmingham, and South StaffordsUre BniikiiHj Company, 34 Beav. 332.) Articles of Association. 29 Provision for Bankruptcy of Shareholder. See the suggestion by Blackburn, J., in Martin's Patent Anchor Com- pany V. Morton (Law Kep. 3 Q. B. 312) as to providing in the Articles of Association that, when a shareholder becomes bankrupt, and his assigns refuse to take the shares, the Company should have power to sell or take them; Where the Deed of Settlement of a banking Company contained a clause that the shares of any shareholder becoming bankrupt should be sold by the Company, and the proceeds of such sale paid over to the assignees of the bankrupt, after deducting aU moneys owed by the banki-upt to the Company for advances, it was held that this clause gave the Company a first charge on the shares in respect of such advances : (Deering and M^ Question v. The Hibernian and Joint-Stock Banking Company, 16 W. R. 578.) See on this subject, Re General Estates Company, Hastie's case, Law Kep. 7 Eq. 3. Costs of Business carried cm, ultra vires. Where the directors of a Company carried on a business not autho- rised by the Deed of Settlement, and costs were thereby incurred, the sohcitors of the Company were held to have no lien for their costs on the papers of the Company. Where, in such a case, moneys have been recovered in any of the actions, although the solicitors would have had a lien for their costs on such moneys while in their hands, yet, after they have paid over such moneys to the Company, and allowed them to be incorporated with the general assets, they have no hen on those assets in respect of such costs. Where, in such a case, moneys have been paid by the Company to the solicitors on account of costs generally, the sohcitors have no right, post litem motam, to appropriate such payments to the costs incurred in respect of the unauthorised business ; but, on the contrary, the court will appropriate the pay- ments to the costs which the Company was liable to pay : (ije Phcenix Life Assurance Company, Howard and Dolman's case, 1 H. & M. 433.) 15. Application of Table A. — In the case of a Oompany limited by shares, if tlie Memorandum of Association is not accompanied by Articles of Association, or in so far as the articles do not exclude or modify tbe regulations contained in the table marked A. in the first schedule hereto, (a) the last-mentioned regulations shall, so far as the same are applicable, be deemed to be the regulations of the Company in the same manner and to the same extent as if they had been inserted in Articles of Association, and the articles had been duly registered. (a) Table marked A. in the first schedule hereto.} — ^For Table A. see the first schedule to this act, post. As to the application of Table A. to a Company in the absence of Articles of Association, see Totterdell v. The Fareham Blue Brick and Tile Company, Law Kep. 1 C. P. 674. With regard to the illegal issue of shares by a Company regulated by Table A., see Re New Zealand Banking Corporation, SewelVs case. Law Kep. 3 Ch. App. 131. 30 The Gompcmies Act, 1862. 16. Stamp, signature, and effect of Articles of Associa- tion.] — The Articles of Association stall be printed, tliey shall bear the same stamp as if they were contained in a deed, (a) and shall be signed by each subscriber in the presence of, and be attested by, one witness at the least, and such attestation shall be a sufficient attestation in Scotland as well as in England and Ireland : when registered, they shall bind the Company and the members thereof (6) to the same extent as if each member had subscribed his name and affixed his seal thereto, and there were in such articles con- tained a covenant on the part of himself, his heirs, executors, and administrators, to conform to all the regulations con- tained in such articles, subject to the provisions of this act ; and all moneys payable by any member to the Company, in pursuance of the conditions and regulations of the Company, or any of such conditions or regulations, shall be deemed to be a debt due from such member to the Company, (c) and in England and Ireland to be in the nature of a specialty debt, {d) (a) The same stamp as if they were contained in a deed.'] — The deed stamp is 11. 15s. where there are less than thirty folios. Where there are thirty folios or upwards, the duty is 11. 15s. for the first fifteen folios, and a further progressive duty of 10s. for every fifteen folios over and above the first fifteen folios. (b) They shall hind the Company and the members thereof, ij-c.] — ^Where the articles are actually signed, they will, of course, strictly bind the person who signs, unless there be fraud, or material alteration in the articles after execution. F. signed the Memorandvun and Articles of Association of a Company. After signature, but before registration, a sheet of the articles was taken out and a new sheet substituted for it without his privity, but with the approbation of the persons then managiug the Company. There was a conflict of evidence as to whether the contents of the substituted sheet were identical witii those of the old one, and whether there was not a material alteration. It was held that the articles were not binding upon F., that the articles and Memorandum must be taken as together constituting one instrument, and that F. was not a contributory. And (per Tiurner, L.J.) if the substitution of a sheet in a deed after execution does not ipso facto, without reference to the question whether there is any variation" in the contents, make the deed void, as %p which qucerc, at all events it makes the deed void, unless it be most clearly proved that the contents of the old and the substituted sheets are identical, or, at least, that there is no material difference between them : {Re The United Kingdom Ship Owning Company, Fel- gat^s case, 2 De G. J. & S. 456, on appeal.) See, however. He Earned s Banking Company, Peel's case (Law Rep. 2 Ch. App 674) post. But where a person has not actually signed the articles, it is necessary, m order to make tiiem binding on him, to show that he has become a member of the Company. As to what constitutes a member, see sect. 23, infra. " The statute only meant to bind those General Provisions. 31 who had actually become members. Anyone who had, without fraud, taken shares could not allege ignorance of anything contained in the Memorandum of Association or in the Articles of Association merely because he had not signed or sealed them ; but if he never actually signed or sealed them, nor had notice of what they contained, the statute cannot be taken to impute to him knowledge of their contents, so as to protect those who by a fraud had induced him to do that which, in the absence of fraud, would have precluded him from saying he was ignorant of their contents. The statute does not authorise anyone to sign or seal the instruments in question tiU after he has become a member :" (per Lord Cranworth, The Directors, SfC, of the Central Railway Company of Venezuela v. Kisch, Law Kep. 2 H. L. 123.) (c) Shall he deemed to be a debt due from such member to the Company J] — See sect. 70, post, as to the recovery of calls or other moneys due from a member of a Company in his character of member. See Martin's Patent Anchor Company, Limited, v. Morton ; the Same v. Hewett (Law Rep. 3 Eq. 306), post, as to the meaning of this section in connection with sect. 154 of " The Bankruptcy Act, 1861." See also Re General Estates Company, Hastie's case. Law Eep. 7 Eq. 3, post. Where a shareholder had filed a biU in equity against the directors of a Company for applying the funds of the Company improperly, and for purposes unauthorised by its articles, the court refused to relieve him on that ground from payment of a call made by the directors previously to a winding-up order, although he offered to lodge the amount of the call in court to abide the result of his suit against the directors : (^Philips V. Ottoman Financial Association ; Re Ottoman Financial Association, W. N. 1867, p. 107.) (d) In the nature of a specialty debt.^ — See sect. 70, infra, as to actions against a member of a Company to recover moneys due from him in his character of member. Moneys payable as above mentioned being in the nature of a specialty debt, an action for their recovery is not barred by the lapse of less than twenty years : {Cork and Bandon Railway Company v. Goode, 13 C. B. 826, and Robinson's Executors' case, 6 De G.M. &G. 672.) GENBEAIi PEOVISIONS. 17. Registration of Memorandum of Association and Articles of Association, with fees as in Table B. — The Memo- randum of Association and tlie Articles of Association^ if any, shall" be delivered to the Registrar of Joint-Stock Companies (a) hereinafter mentioned, vsrho shall retain and register the same : (&) There shall be paid to the registrar by a Company hairing a capital divided into shares, in respect of the several matters mentioned in the table marked B. in the first schedule hereto, (c) the several fees therein specified, or such smaller fees as the Board of Trade may from time to time direct j and by a Company not having a capital divided into shares, in respect of the several matters mentioned in the table marked C. in the first schedule hereto, ((^) the several fees therein specified, or such smaller fees as the 32 The Oompcmies Act, 1862. Board of Trade may from time to time direct : AH fees paid to the said registrar in' pursuance of this act shall be paid into the receipt of Her Majesty's exchequer and be carrieji to the account of the Consolidated Fund of the United Kingdom of Great Britain and Ireland. (a) The Registrar of Joint-Stock Companies.]— Ab to the constitution of the registration office, see sect. 174, irifra. (6) Register the same.'] — See Re BarnecTs Sanldng Company, PeeVs case. Law Rep. 2 Ch.App. 674, where the registrar registered a Memorandum of Association altered in his presence after its execution, and was held censurable for so doing. (c) The table marked B. in the first schedule hereto.] — For Table B. of fees, see^o«<. (d) The table marked C. in the first schedule hereto.] — For Table C. of fees, see post. 18. Effect of registration. — Upon the registration (a) of the Memorandum of Association, and of the Articles of Asso- ciation in cases where Articles of Association are required by this act or by the desire of the parties to be registered, the registrar shall certify (&) under his hand that the Com- pany is incorporated, and in the case of a hmited Company that the Company is limited : The subscribers of the Memorandum of Association, together with such other persons as may from time to time become members of the Company, (c) shall thereupon be a body corporate ((i) by the name contained in the Memorandum of Association, (e) capable forthwith of exercising all the functions (/) of an incorporated Company, and having perpetual succession and a common seal,{g) with power to hold lands, but with such liability on the part of the members (/i) to contribute to the assets of the Company in the event of the same being wound-up as is hereinafter mentioned : A certificate of the incorporation of any Company (i) given by the registrar shall be conclusive evidence that all the requisitions of this act in respect of registration have been complied with, (fc) (a) Upon the registration, j^-c.]— Where the plaintiff in an action was engaged by the defendants, who afterwards formed themselves into a limited Company, and he continued in the service of the Company, after the expiration of his first enga,gement, it was held that the defendants could only be liable as a Company and not as individuals, though practically they were the Company : (Seqnelin v. Terrell, 16 L. T N S 537. Lush, J.) See also Oaias v. Turquand, Re Overend, Gumey, and Co., Law Rep. (V) The registrar shall certify.]— U the registrar refuses to grant a certificate of mcorporation, he may be compelled to do so by mandamm. General Provisions. 33 (c) Members of the Company. — For a definition of member, see sect. 23, infra. (d) Shall thereupon be a body corporate, ^c] — Among the many definitions that have been given of a body corporate the following is probably the clearest and most complete. A corporation or body incorporate is a collection of many individuals imited in one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations, and of suing and being sued, of enjoying privileges and immunities in common, and of exer- cising a variety of rights more or less extensive according to the design of its institution, or 3ie powers conferred upon it either at the time of its creation or at any subsequent period of its existence : (1 Kyd on Corp. 13.) It has been observed, however, by Lord Crauworth {Oakes v. Tur- quand, Re Overend Gurney and Co., Law Rep. 2 H. L. 358), " It must be borne in mind that a Company formed under the statute of 1862 is not a mere common-law corporation ; its rights and liabilities depend in great measure on statutable provisions, and in order fuUy to understand and interpret them we must consider not merely the enact- ments of 'The Companies Act, 1862,' but also the other acts previously passed in pari materia.''^ Lord Justice Cairns, speaking of a Company incorporated under this act, said, "The Memorandum of Association is the charter and limit of the powers of the Company, just as the Articles of Association may be said to be its rules of internal government " : (Re Cachar Company, Lawrence's case. Law Rep. 2 Ch. App. 424.) As to the Memorandum of Association, see sects. 6 and 8, supra. As to the Articles, see sect. 14, supra. By sect. 19, infra, a copy of the Memorandum and Articles of Association, if any, shall be forwarded to any member at his request, on payment of one shilling. A Company under this act may be dissolved by a compulsory winding- up under the Court of Chancery, or it may dissolve itself by a voluntary winding-up, which may be continued, if considered expedient, under the supervision of the court. As to the winding-up of a Company, see Part IV. of this act. A Company established with limited liability under this act, may law- fully commence business and exercise their borrowing powers before the whole of the nominal capital has been subscribed ; and a representation by prospectus issued on behalf of a Company, that the capital consists of a given sum, in shares of a certain amoimt, does not imply that the whole capital named is to be raised at once, and that the borrowing powers are to be suspended until the whole of such capital has been subscribed : (M'Bougall v. The Jersey Imperial Hotel Company, 2 Hem. & M. 528 ; 34 L. J. 28.) See also Ornamental Pyrographic Wood Works Company (2 H. & C. 63), and The Howbeach Coal Company v. Teague (6 H. & N. 151). A clause in the Articles of Association of a Company provided that in case the whole of the shares into which the nominal capital of the CTompany was divided should not be subscribed for or allotted, the registered members of the Company for the time being should, if the directors should by resolution so declare, be and continue associated for the objects thereof, and the regulations for the management of the 34 The Companies Ad, 1862. Company should be in force and binding on such members in like manner as if the whole of the shares into which the nominal capital was divided had been subscribed for and allotted, and that the business of the Com- pany might be commenced from that time. It was held, that until the whole of the capital was subscribed for or allotted, or the directors had passed a formal resolution for continuing the Company, the directors had no power to make a call, and a call so made could not be recovered against a shareholder: (^North Stafford Steel, Iron, and Coal Company (Burslem) Limited v. Ward, Law Rep. 3 Ex. 172.) The payment to shareholders before any profits have been made of interest on the amount of capital paid up is illegal, and will be restrained by injunction : {M'-Dougall v. The Jersey Imperial Hotel Company, 2 Hem. & M. 528 ; 34 L. J. Ch. 28 ; 10 Jur. N. S. 1043.) A limited Company may become a shareholder in another limited Company if authorised by its own Memorandum and Articles of Asso- ciation to do so : (Re Barned's Banking Company, Ex parte The Contract Corporation, Law Rep. 3 Ch. App. 105.) But see The Joint Stock Dis- count Company v. Brown (Law Rep. 3 Eq. 139, 150), and Be Peruvian Railways Company v. International Contract Corporation's case (W. N. 1869, p. 124). As to a banking Company being held liable as a contributory in the winding-up of a Company whose shares it had taken and dealt with, although it had no power by its Articles of Association or bye-laws to take shares in a Company, see Re Asiatic Banking Corporation, Ex parte Royal Bank of India, W. N. 1868, p. 304. It has been held that this act does not confer on all Companies regis- tered under it a power of issuing negotiable instruments ; but that such a power exists only where upon a fair construction of the Memorandum and Articles of Association it appears that it was intended to be conferred : (Peruvian Railways Company y. Thames and Mersey Maiine Insurance Company, Re Peruvian Railways Company, Law Rep. 2 Ch. App. 617. But where the Company has the power of accepting bills of exchange, a iona-fide holder of bills accepted by the Company is not boimd to inquire whether they have been so accepted in accordance with the pro- visions of the Articles of Association : (Re Blakdi/ Ordnance Company, Ex parte Mercantile and Exchange Baiik, W. X. 1867, p. 147.) _ It is competent to a Company, established for trading purposes, to give a bill of sale as a security for goods sold to, or work done for, them ; and an affidavit filed with a bill of sale so given describing the Company by its name, " The Glucose Sugar and Colouring Company," and stating the address of its principal office, is a sufficient compliance with sect. 1 of "The Bills of Sale Act" (17 & 18 Vict. c. 36): (Sheares v. Jacob, Law Rep. 1 C. P. 513.) See also Deffell and Another v. While, Law Rep. 2 C. P. 144. The principle of equity, that what is agreed to be done is considered as done, applies equally to Companies as to individuals. Therefore, where the directors of a Company had authority to create a charge upon the assets, and with the intention of creating such a charge entered into an agreement, but the bonds given did not carry out the intention, it was held, that the court would give effect to the intention : (Re Strand Music Hall Company, 14 \V. R. 6 ; 3 De G. J. & S. 147, on appeal.) A Company maybe treated as having qua Company been euUty of fraudulent misroprcsoutation : (Re The Life Association of Enqland, Ex parte Blake, 84 L. J. Ch. 27«.) See iufrd. If a case of fraud is alleged in respect of the formation of a Company, General Provisions. 35 it seems it must be set up by a bill in equity, and not by proceedings under a winding-up order : (Re British and Foreign Cork Company, Leifchild's case, Law Rep. 1 Eq. 281 ; 11 Jur. N. S. 941 ; 13 L. T. N. S. 267.) Contracts by Companies. As regards contracts to take shares, see sect. 23, infra. No contract or agreement entered into by the promoters of a Company will bind the Company after incorporation, unless it is embodied in the Articles of Association constituting the Company, or is adopted by it after its incorporation : (see Pitbrow v. Tilbrow's Atmospheric Railway Company, 5 C. B. 440 ; Parsons v. Spooner, 5 Ha. 102 ; Terrallv. Hutton, 4 Ho. Lords Cas. 1091 ; and Oun v. London and Lancashire Fire Insurance Company, 12 C. B. N. S. 694.) The Articles of Association of a Company provided for the payment of 5500Z. to A., who was described as the promoter of the Company, for his trouble and expense in getting up the Company. A. was, in fact, a mere nominee on behalf of P. and others, who were the real promoters, and who were to receive the money. Some of the money not having been paid, an action was brought against the Company in the name of A. to recover the unpaid balance. The directors iiled a bill in the name of the Company to restrain the action, and the allegations in this bill showed that the persons by whose directions it was prepared were fully aware of the fact that A. was only a nominee, and that P. and others were to receive the promotion money. The action and the suit were ultimately com- promised by the directors giving to P. deposit-notes or bills for a sum in satisfaction of his claim. . These not having been duly paid, P. presented a petition to wind-up the Company, and the matter was again com- promised by the payment of 500/. to P. The Company was soon after- wards ordered to be wound-up on another petition. The official liquidator having claimed repayment of the 500/. from P., it was held (reversing the decision of the Master of the Polls) that the compromise was bindmg on the Company, as the biU filed by the Company showed that they knew all the facts of the case and the compromises, and there had, therefore, been a ratification by the Company of the agreement with P. : (Re General Exchange Bank, Preston's case, W. N. 1868, p. 193 ; 16 W. R. Ch. 1097.) As to the making, accepting, or indorsing of promissory notes or bills of exchange on behalf of companies under this act, see sect. '47, infra, and the notes under it. Such Companies have the power of issuing negotiable instruments only, where, on a fair construction of the Memorandum and Articles of Association, it appears that it was intended to be conferred : (Peruvian Railways Company v. Thames and Mersey Marine Insurance Company, Re Peruvian Railways Company, Law Rep. 2 Ch. App. 617.) As to contracts on behalf of any Company under this act, made since the 1st of September, 1867, see " The Companies Act, 1867," s. 37, post. But owing to the absence of any provision on the subject in this act, except sect. 47, infra, contracts made under this Act, previously to that time are governed by the same rules that apply to those of a corporation aggregate at comh^on law. The general rule, subject to certain exceptions, is that a corporation can only contract by an instrument \mder its corporate seal : (Broughton v. The Manchester and Salford Waterworks Company, 3 B. & Aid. 1 ; Finlay v. The Bristol Railway Company, 7 Exch. 409 • Gihson v. The East India Company, 5 Bing. N". C. 262 ; Mayor of Ludlow v. Charlton, 6 M. & W. 815 ; Smart v. West Ham Union, 36 The Companies Act, 1862. 10 Exch. 867 ; and London Dock Company v. Sinnot, 8 E. &. B. 347.) With regard to the application of the rule in equity, see Taylor v. Dulwich Honpital (I P. W. 655), Winne v. Bampton (3 Atk. 473), Carter V. Deaii of Ely (1 Sim. 211), and Preston v. The Liverpool Eailway Company (17 Beav. 114; 5 Ho. Lords Cas. 605). _ " There are numerous exceptions, however, to the rule, and in a recent case (South of Ireland Colliery Company v. Waddle, Law Eep. 3 C. P. 463) in which the decisions on the subject were ftdly reviewed, the principle was clearly laid down that, where a corporation is established for the pur- pose of trading, it may make valid and binding contracts without the formality of a seal in aU cases relating to the objects and purposes for which the corporation was created, and that the magnitude or insigni- ficance of the subject matter is not an element in deciding on such cases. In that case a Company incorporated under this act for the working of collieries contracted with an engineer for the erection of a pumping- engine and machinery, and paid him part of the price. In an action by the Company against the engineer for a breach of contract in refusing to dehver the engine and machinery, it was held that the action was maintainable, though the contract was not under seal. See also Henderson v. The Australian Royal J fail Steam Navigation Company (5 E. & B. 409 ; 24 L. J. 322, Q. B.), Clarice v. Cnckfeld Union (1 B. C. C. 85 ; 21 L. J. 349, Q. B.), Church v. The Imperial Gas Liylit Company (6 A. & E. 846), Beverley v. The Lincoln Gas Company (6 A. & E. 829), Denton v. East Anglian Railway Compam/ (3 Car. & Kir. 16), Nicholson v. Bradfehl Union (Law Rep. 1 Q. B. 620) : but see The London Dock Company v. Sinnot (8 E. & B. 347), in which an unsealed agreement was held invalid. As to a court of equity enforcing unsealed contracts with a Company where there has been part performance, see The London and Binnimjham Ruilira;/ Company v. Winter (Cr. & Ph. 57), Earl of Lindsey v. Great Northern Raihvay Company (10 Ha. 675), Wils,_m V. We.-t Hartlepool Railway Company (34 Beav. 187 ; 2 De G. J. & S. 475), Marshall v. The Corporation of Qiieensborough (1 Sim. & Stu. 520), Ma.nccll v. Dulwich College (7 Sun. 222), and Sten iis\i Hospital v. Dyas (15 Ir. Ch. 405). As to the effect of a judgment obtained against a Company upon an unsealed agreement, see Williams v. St. George's Harbour Company (2 De G. & J. 547 ; 27 L. J. Ch. 691 ; 4 Jur. X. S. 1066), and Hulett's cose (2 J SH. 306). A Company contracts by means of its directors and other duly authorised agents. But, it cannot bv any means be bound where the contract is beyond the powers (ultra vires) of the Company, as set forth in its Memorandum and Articles of Association. As to persons dealing with the directoi-s or other agents of a Company being bound to make themselves acquainted with the actual limits set to their authorities by thie resxulations of the Company see note under sect 14 s»;«-a, and Enust v. Xiehols (6 Ho. Lords Casl 419), Royal British Bank v. Tiin;i,and (6 E. & B. 327 ; 25 L J Q B 317 • ^r*^o'^''^N"'^>,^" 663), -lrtcH.r«m Life Insurance Societi/ v. PooieiiCdDe G. & J. 294), Greaiicoods case (ijDe G M. & G. m^:Agar v. The Athen^.am Xr/e 7«s»r««c-<' .Socvf^y (o C. B. N. S. 72o\ Balfour y. Ernest (5 C. B. JN. b. bUl), and Ex parte the Eagle Company (4 Kay & J. 549). The Directors of a Company as Agents. The directors of a Company under this act^ where the concern IB a trading one, have all the powers that the Company itself has in Oeneral Provisions. 37 the way of contracting, borrowing, or otherwise, except so far as these powers are controlled or limited by the Memorandum or Articles of Association. As to the appointment and acts of directors and managers being deemed valid, notwithstanding any defect that may afterwards be discovered in their appointments or quaHiications, see sect. 67, infra. See sects.. 41 and 42, infra, as to the penalties incurred by directors, managers, and other officers of a Company, who carry on the business without duly pubHshing the name of the Company, or who sign docu- ments on its behalf without duly mentioning its name in them. As to the position of directors generally, see note under sect. 14, supra. Where the Articles of Association do not prescribe the number of directors required to form a quorum, the number who usually act in conducting the business of the Company will constitute a quorum : (i?e Tavistock Ironworks Company, Lyster^s case. Law Rep. 4 Eq. 233, ante.^ And in the case of a Company governed by Table A., in the first schedule to this act, the directors may delegate their powers to a few, and even to one. only of themselves, and such a delegation will be presumed if one or two directors act for the Corhpany in a matter ■within the scope of the Company's powers : (Totterdell v. Fareham Brick Company, Law Eep. 1 C. P. 674.) But see Re Leeds Banking Company, Hoioard's case. Law Kep. 1 Ch. App. 561 ; 36 L. J. Ch. 42. Where the Articles of Association lay down regulations, as to the meetings or otherwise of the directors, these regulations must be complied with. In the case of Darcy v. The Tamar, Kit Hill, and Collington liailway Company (Law Kep. 2 Ex. 158), it was held that directors exercising the powers given by "The Companies Clauses Consolidation Act, 1845" (8 Vict. c. 16), must act together and as a board. The quorum of directors in this Company, as prescribed by their special act, being three, the secretary aflBxed the seal of the Company to a bond after having obtained the written authority of two directors at a private interview, and at another private interview the verbal promise of a third to sign the document subscribed by the other two. On the Company being sued on this bond, it was held not liable on the ground that the seal was affixed without lawful authority, as it should have been affixed by the authority of the directors meeting together as a board. See also Re Regent's Canal Iron Company, W. N. 1867, p. 79. See as to directors irregularly exercising their powers as agents, Royal British Bank v. Turquand (5 E. & B. 248 ; 6 E. & B. 327 ; 24 L. J. Q. B. 327 ; 25 L. J. Q. B. 317), Agar v. Athenseum Life Assurance Society (3 C. B. N. S. 725 ; 27 L. J. C. P. 95), and Smith v. Hull Glass Company (11 CB. 897). As to the public in dealing with the agents of a Company being bound to take notice of the regulations of the Company, see note under sect. 14, svpra. In the case of Marshall v. The Glamorgan Iron and Coal Company (Law Rep. 7 Eq. 129) specific performance was decreed against a Company of an agreement by directors to cancel shares then standing in the name of the plaintiff. When directors enter into an agreement that a Company will do that which is ultra vires, a court of equity will not decree specific perfor- mance : (ElUs V. Colman, 25 Beav. 662.) An agreement that the call payable by a tradesman, who is a share-' 38 The Companies Act, 1862. holder in a Company, shall not be payable in cash, but only by set-off against goods supplied by him, is in general ultra vires : (Re Richmond Hill Hotel Company, Pellatt's case, Law Rep. 2 Ch. App. 527.) See also Re Masons'' Hall Tavern Company, Habershon's case (Law Rep. 6 Eq. 286), as to the set-off of a debt payable infuturo against a call. The knowledge of a director that bills indorsed for value to his Company were bills which had been accepted for the accommodation of the drawer, the director not having been concerned on behalf of his Company in the transaction, in which the biUs were indorsed to them, was held not to aifect the Company with notice of the fact of their beiag accommodation bUls : {Peruvian Railways Company v. Thames and Mersey Marine Insurance Company, Re Peruvian Railways Company, Law Rep. 2 Ch. App. 617.) See Re Fresh Provision Preserving Company, Worcester's case (W. N. 1867, p. 62), where a Company was held bound by minutes signed by the chairman of a meeting of directors, agreeing to give a charge on their property, on the ground that he was a duly-authorised agent within the Statute of Frauds. As regards the position of directors contracting on behalf of their company. Cairns, L. J., has expressed himself as follows : "They are merely agents of a Company. The Company itself cannot act in its own person, for it has no person ; it can only act through directors, and the case is, as regards those directors, merely the ordinary case of prin- cipal and agent. Wherever an agent is liable, those directors would be liable ; where the liability would attach to the principal, and the prin- cipal only, the liability is the liability of the Company ;" (Fergiison v. Wilson, Law Rep. 2 Ch. App. 89.) Any representations made by the agents of a Company which form the foundation of a contract between that Company and a third person those misrepresentations lying at the root of the contract — ^wiU entitle the other party to avoid the contract, and the Company must in that case take upon themselves the consequences of the misrepresentations of their agents. See the judgment of Vice-Chancellor Wood, Henderson V. Lacon, Law Rep. 5. Eq. 261. In regard to frauds and fraudulent representations by the agents of a Company, the following principles have been laid down by Lords Chelms- ford and Cranworth in the House of Lords : A Company cannot retain any benefit which they have obtained through the fraud of their agents but they may be made responsible at law for the frauds of those agents to the extent to which they have profited from them, and the fact that the complamant is himself a member of the Company whose agents had committed the fraud would not be a valid objection to his suit in equity for a rescmding of his contract to take shares. A person so detrauded, however, cannot bring an action for deceit against the Company, and if he wishes to pursue this remedy, he must brin<^ his ^tion agamst those who were guilty of the fraud personaQy. See TAe mstern Bank of Scotland v. Addie, Law Rep. 1 H. L., Scotch App., Their Lordships thus seem to have considered that a party defrauded by the misrepresentations of directors into taking shLs'^cr oS redress at law only to the extent to which the Company mmU.yT^. fited by the transaction and that, if it had not madeCLch profit tbepa^ty deceived would be without remedy against tteCom^p^y Their Lordships too, seem to have thought that the proper fX^of action would be for money had and received • (26 158 167 ) General Provisions. 39 See, however, Barwick v. The English Joint-Stock Bank (Law Rep. 2 Ex. 259), infra, where the Court of Exchequer Chamber held that a Company would be liable for the fraudulent misrepresentations of their agent, as in general a principal is liable for the torts of his agent acting in the course of his employment. The court also held that such misrepresentation, sup- posing it to have taken place, would be properly described in common- law pleading as the misrepresentation of the Company. Willes, J., when delivering the judgment of the court, seemed to think that an action for deceit would be still more appropriate than one for money had and received. The opinions of the common-law judges thus appear to be at right angles with the dicta of Lords Chelmsford and Cran- worth in Addie's case, and of Lord Westbury in the case of The Neiv Brunswick Company v. Conybeare (9 Ho. Lords Cas. 711). As no part of the decision in the House of Lords, however, necessarily involves a principle inconsistent with the ruling in BarwicKs case (which is distinctly in point with the question whether a Company is bound by the misrepresentations of its agents or directors), the latter decision may be fairly considered a safer guide to the law on this point than the dicta contaiaed in the judgment in Addie's case. The directors of a Company are responsible for the acts of workmen employed by the Company, as a master is responsible for the acts of his servant which are done in the execution of his duty. Where the workmen employed on the works of a Company, in the manufacture of certain foils and sheet metals, infiinged, ia the carrying out of the process upon which they were employed, the plaintiif's patent for a certain method of com- bining lead and tin, for a metal so produced, it was held that the directors and managers, as well as the Company, were personally liable for the acts of the workmen, even on the supposition that the workmen had been directed by them not to infringe the plaintiff's patent : (Betts v. De Vitre, Law Rep. 3 Ch. App. 429 ; 37 L. J. Ch. 325 ; 18 L. T. N. S. 165.) As to whether directors who exceed their powers in contracting can, like other agents, be made personally liable in damages for having arrogated to themselves an authority which they do not in fact possess, see Wilson v Miers, 10 C. B. N. S. 348. Directors and other agents may be made personally hable to those whom they have induced by false representations to contract with their Company, and that both in equity and at common law. In the case of Henderson v. Lacon (Law Rep. 5 Eq. 249), where the plaintiff, in a bill in equity, obtained a decree against the directors of a Company and against the Company, on the groxmd of misrepresentation in the prospectus, for repayment of the deposit and allotment money paid on his becoming a shareholder, with costs of the suit, Vice-Chan- cellor Wood thus spoke of the position of agents inducing people by false representations to contract with their Company: "If you are to make them personally liable for the consequences of their misrepresen- tations, not they but the party for whom they contracted pocketing the proceeds — as in this instance the Company, for whom the directors may be taken to be acting as agents — you must fix them also with a guilty knowledge of the misrepresentation which is communicated to the person who is to be led into the contract. If you do not fix them with what is technically called the scienter, upon an action of deceit, you cannot fix them personally with the consequences of the injury or damage that may result to the plaintiff who has been so deceived." See also Hallows v. Fernie, Law Rep. 3 Ch. App. 467 ; 18 L. T. N. S. 340. 40 The Gompanie!^ Act, 1862. A shareholder in a Company filed a bill in equity against it and the directors, for a decree cancelling an allotment of shares to him, on the ground of fraud and uiisrepresentation on the part of the directors, and for repayment of his deposit by the defendants generally, or, in the alternative, that if he was held to be a shareholder, the directors should indemnify him against all the consequences thereof. The directors demurred to the bill for want of equity ; and it was held that the de- murrer should be overruled : (Ogilvie v. Currie, 16 L. T. N. S. 309, Ch.) On the case afterwards coming to a hearing, it appeared that the plaintiff became a shareholder in June, 1865, upon the faith of certain statements in the prospectus. Towards the end of 1865, he began to suspect that all was not right. In April, 1866, a committee of inquiry was appointed, and on May 30, 1866, by his own account, he learned the untruth of the prospectus. He took no steps towards repudiation until July 21, 1866, when he served the directors with a notice of repudiation, and his bill was not filed until March 23, 1867. By that time the Company had commenced winding-up. It was held that, as between the plaintiff and the Company, the case was one of an affirmance by the plaintiff of a contract which, at most, was a voidable contract. And as between the plaintiff and the directors, that inasmuch as his own lacliet! had fixed him on the list of contributories, he could not maintain his suit against the directors to indemnify him against the consequences : (The Same v. The Same, 37 L. J. Ch. 511 ; 16 W. R. 769 ; 18 L. T. N. S. 593, Ch.) As to the criminal responsibOity of directors, managers, and other agents of a Company, see sects. 166, 167, and 168, injra. Where they have circulated false prospectuses and reports with a view to induce people to take shares, they may also be made answerable in damages to those who take shares on the faith of such reports (Bumes v. Pennetl, 2 Ho. Lords Cas. 497 ; Gerhard v. Bates, 2 E. & B. 476 ; Denton V. Great Northern Railwq,y Company, 5 E. & B. 860 ; and Williams v. Swansea Harbour Trustees, 14 C. B. N. S. 845) : and an action for deceit may be brought although there was no immediate communication between the plaintiff and the defendant : (Clarke v. Dickson, 6 C. B. N. S. 458 ; Bedford v. Bagshaw, 4 H. & N. 538 ; and Bale v. Cleland, 4 Fos. & Fin. 117^ See also Culkn v. Thomson (4 Macq. 424 ; 9 Jur. N. S. 85, In Dom. Proc), where it was laid down that even servants of a Company directly concerned in the commission of a fraud would be liable. Directors as Trustees. The directors of a Company are, in point of law, trustees as regards the shareholders, and a shareholder may sustain a bill in equity against directors personally, when he charges them as trustees and seeks redress against them for a breach of trust to the Company of which he is a member: (Ferguson v. Wilson, Law Rep. 2 Ch. App. 90. Cairns, L.J.) Where loss was occasioned, first, by continuing the business of a Company without calhng a meeting to consider the propriety of dissolv- mg it ; secondly, by advances to the directors— both of such acts being contrary to express provisions of the deed of settlement of the Company —It was held that the directors who so neglected the provisions of the deed of settlemont were liable, in a suit instituted by the official liqui- dator, to make good the loss. Directors who neglect the rules of a Company are liable to make good to the sharcliolders any loss occasioned thereby ; and their liability in this respect does not differ from that of ordinary trustees Where General Provision!'. 41 therefore, directors might have learned from the books of the Company the true state of its affairs, it was held that, although in fact they were ignorant of the state of affairs, their ignorance was no defence in a suit instituted for the purpose of compelling them to make good losses occasioned by their neglecting to take the steps which, by the provisions of the deed of settlement, they ought to have taken under the cir- cumstances : (Turquand v. Marshall, Law Rep. 6 Eq. 112.) See also, as regards breaches of trust by directors, The Bank of Turkey v. The Ottoman Company (Law Rep. 2 Eq. 366 ; li L. T. N. S. 545), and The Joint-Stock Discount Company v. Brown (Law Rep. 3 Eq. 139, infra). See lie Anglo-Greek Steam Navigation and Trading Compang (35 Beav. 899) for observations as to the impropriety of directors receiving gifts from the projector out of the promotion moneys received by him from the Company. A benefit received by a director from persons employed by the Company, or arising from the transactions of the Company, cannot be supported. It is not only the duty of directors of Companies to be' ready, at all times, to explain everything to shareholders, but also that they shall be engaged in no transactions connected with the Company from which they can derive a profit which is not openly known to, and acquiesced in, by all the shareholders. A contract between a director and his Company will not bind the Company in a court of equity, unless all the circumstances relating to it are f uUy and clearly explained to the members of the Company : ( The Aberdeen Railway Company v. Blaikie, 1 Macq. 461.) See also Re Central Darjeeling Tea Company, Ex parte Cornish (W.N. 1867, p. 147), and Flanagan v. Tlie Great Western Railway Company (Law Rep. 7 Eq. 116). As to a claim by a director of a Company established under the Joint- Stock Companies Act, 1844, for advances made to meet the necessary expenses of carrying on the concern, see Lowndes v. The Garnett and Moseley Gold Mining Company, 83 L. J. Ch. 418. See Hagell v. Gurrie (W. N". 1867, p. 84) as to a suit instituted by a shareholder on behalf of himself and the other shareholders against the directors and the Company, as defendants, to make the directors answerable for profits alleged to have been made by them on certain purchases on behalf of the Company. Where directors of a Company, when amalgamating with another Company, received from the latter a sum of money as compensation, and withheld knowledge of the transaction from their members, they were held to be trustees of the money for their members, and were ordered to pay it into court : {Gaskell v. Chambers, 26 Beav. 360.) Where an ultra vires and improper payment was made to a pro- moter of a Company all the directors who were present at a meeting of the directors, at which the cheques for the money in question were drawn and given to a solicitor to be handed to the promoter, were ordered to refund the money. At a second meeting the solicitor reported he had given the cheques ; and at a third meeting the minutes of the two former meetings were read : it was held that a director who was present at the second and third meetings could not be made liable for not having taken steps to rescind the act of his co-directors or to stop the payment of the cheques : {Re Reese River Silver Mining Company, W. N. 1867, p. 139.) Shareholders iu a Company cannot lie by, sanctioning, or by their silence at least acquiescing in, an arrangement which is ultra vires of the 42 The Gompcmies Act, 1862. Company, •watohing the results ; and if it be favourable and profitable to themselves, to abide by it and insist on its validity ; but if it prove unfavourable and disastrous, then to institute proceedings to set it aside. Therefore, where shareholders complained of acts ultra vires, which they had acquiesced in for six years, relief was refused. In matters strictly relating to the internal management of a Com- pany the court, though it should come to the conclusion that the course adopted is not warranted by the terms of the Company's deed, wiU not interfere, even though the minority should have summoned a meet- ing of all the shareholders, and the majority should have persisted in the course complained of. But if the measures adopted are plainly beyond the powers of the Company, and are inconsistent with the objects for which the Company was constituted, then the court wiU, at the instance of the minority, interpose to prevent the perform- ance of the act complained of, and it wiU do so whether an appeal has or has not been made by the minority to the shareholders generally. The court will interfere to prevent the directors of a railway Com- pany, not having powers so to do, from embarking the funds of the Company in carrying on a brewery or a steamboat Company, and from speculating in the purchase or sale of stock, and from transferring their business to another Company. But it will not interfere to prevent a call not required, or stop a dividend not justified by the pecuniary con- dition of the Company, though it will prevent the illegal apportionment of the dividends amongst the shareholders. Where the coiirt interferes by injunction to prevent the performance, by the directors of a Company, of an act ultra vires, it wiU also, to the extent of its power, redress the act performed and give relief to the persons injured thereby, although it is not called upon to dissolve the Company or wind-up its affairs. In the present case, the only available property of the Company was transferred to two shareholders in lieu of their shares, and the Company was thereby practically put an end to, and the debts were thrown on the remaining shareholders. This was sanctioned by a majority of the shareholders at a general meeting : it was held, that the majority could not bind the minority in such a transaction, and it was set aside. The Company was held, under the circumstances, not a necessary party to a suit to impeach acts of its directors : (Gregory v. Patchett, 33 Beav. 595 ; 10 Jur. N. S. 1119, Ch. ; 11 L. T. N. S. 357.) The plaintiff by his bUl prayed the specific performance of a resolu- tion passed by the board of directors of a Company, imder which he alleged that he was entitled to have a certain nvmiber of shares allotted to him ; and he also prayed that if it should appear that all the shares had been allotted to other shareholders, the directors might indemnify him out of their own shares, or might be charged with damages. All the shares had been allotted before the filing of the bill. It was held that as no relief by way of specific performance was possible, the plain- tiff's claim for damages under Sir H. Cairns's Act (21 & 22 Vict. c. 27) failed also. In such a case the plaintiff's claim against the directors to be indem- nified out of theb shares was only a claim for damage in another form • {Ferguson v. Wilson, Law 1-tep. 2 Ch. App. 77 ; 36 L. J. Ch. 67 : 12 Jur. N. S. 912 ; 15 L. T. N. S. 230.) ^^ ' ' " See sect. 166, infra, as to the power of the court, in a winding-up, to make directors or managers liable for any breach of trust committed by them in relation to the Company. General Provisions. 43 But notwithstanding that section, leave was given to a shareholder, after the making of a winding-up order, to proceed with a suit against the Company and certain directors, and make the directors personally liable for misapplying the moneys of the Company : (Philips v. Ottoman Financial Association, Re Ottoman Financial Association, W. N. 1867, p. 107.) (e) By the name contained in the Memorandum of Association.'] — See sect. 13, supra, as to the power of a Company imder this act to change its name. (/) Capable of exercising all the functions, §•<;.] — As soon as a Com- pany has been registered under this act, it may perform all acts neces- sary for carrying into effect the purposes of the Company, and it may then both sue and be sued by its registered name. Companies incorporated under this act, and incorporated Companies to which this act applies (see sects. 175 — 178), except as herein men- tioned, sue and are sued in the same way as corporations aggregate. By sect. 72, infra, any Company under this act may refer to arbitra- tion any differences, questions, or other matters whatsoever in dispute between itself and any other Company or person. By sect. 69 of this act, a plaintiff Company may be required to give security for costs. When the winding-up of a Company has once commenced, the official Uquidator, in the case of a compulsory winding-up, and the Uquidators in a voluntary winding-up have power to bring or defend any action, suit, or prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the Company. See respectively sects. 95 and 133, infra. And by sect. 160, infra, they have power to compromise debts, &c., and all questions in any way relating to or affecting the assets of the Company, or its winding-up. As to the effect of a winding-up, on actions or suits against a Company, see sects. 85, 87, and 163, infra. Suing at Law. A Company must sue in its registered name and by attorney, who should be appointed under the common seal of the Company (Arnold v. The Mayor, Sfc, of the Borough of Poole, 4 M. & Gr. 860) ; but as to the power of an attorney not appointed under seal to bind a corporation, see Flaviell v. The Eastern Counties Railway Company (2 Exch. 344). It was held that a railway Company might have discovery of docu- ments under the 50th section of " The Common Law Procedure Act, 1854," upon the affidavit of their attorney, it being impossible for them literally to comply with the terms of that provision, and it being the intention of the Legislature that its benefit should be extended to all suitors. And the case of Christopherson v. Lotinga (15 C. B. N. S. 809) was distinguished : (Kingsford v. The Great Western Railway Company, 16 C. B. N. S. 761 ; 33 L. J. C. P. 307.) As to actions by Companies against their shareholders for calls, see sect. 70, infra. A Company may, of course, sue on a contract it has made if the contract be a valid one at law. As to the law regulating the contracts of Companies, see supra. Where, however, a Company under this act has contracted since the 44 Tfw Gompames Act, 1862. iBt of Septemlser, 1867, the contract comes within the provisions of sect. 37 of " The Companies Act, 1867," post. It has been held that a Company might maintain an action for hbel against one of its shareholders: (The Metropolitan Saloon Omnibus Com- pany v. Hawkins, 4 H. & N. 87 ; 28 L. J. Ex. 201.) Suincf in Equity. A Company must sue in equity as well as at law by its corporate °3.me. en ■ J- \ The court will order security to be given for costs (see sect. 69, injra) on an affidavit being made showing reasonable grounds for supposing that the Company cannot pay the costs, in the absence of any evidence to the contrary : (Isle of Wight anil Southampton Steamboat Company v. Rawlins, 9 Jur. N. S. 887 ; 2 N. E.. 544.) Where a Company or corporation is plaintiff in a suit in equity, the defendant cannot, under sect. 19 of 15 & 16 Vict. c. 86, file interroga- tories for the examination of its officers when they are not parties to the suit: (Imperial Mercantile Credit Association v. Whitham, Law Rep. 3 Eq. 89 ; 12 Jur. N. S. 898 ; 15 L. T. N. S. 203.) An injunction will not be granted on the application of a limited Company without the undertaJdng of some responsible person to be answerable in damages: (The Anglo-Damibian Steam Navigation and Colliery Company v. Rogerson, 10 Jur. N. S. 87, M. R.) As to suits instituted by Companies against parties who have im- properly obtained possession of moneys belonging to them, see Bryson v. Warwick and Birmingham Railway Company (4 De G. M. & G. 711), Ernest v. Croysdill (2 De G. F. & J. 175), and Grimes v. Harrison (26 Beav. 435). In a suit on behalf of Company A., praying relief on the footing that a payment for promotion money made by their directors to Company B. was a breach of trust, the court refused to restrain Company B. (which was a limited Company being voluntarily wound-up) by interlocutory injunction from dealing with the money or dissolving the Compjiny ; the right to such money being the question to be decided at the hearing, and there being no admission of a trust so as to entitle the plaintiifs to an order for payment of the money into court : (Bank of Turkey v. Ottoman Company, Law Rep. 2 Eq. 366 ; 14 L. T. X. S. 545.) Where a bUl was filed by the official Hquidatpr of a Company against their late directors, stating a transaction whereby, in consideration of the payment of moneys belonging to the Company by means of cheques drawn by two of the directors, certain shares in a banking Company were transferred into the names of some of the du-ectors as nominees of the Company, and alleging that this transaction was ultra vires, and was con- cealed from the Company by false descriptions in the Company's books, it was held, on demurrer by one of the defendants, that whatever might be the force of the argmncnt as to the validity of the transaction under the Company's powers, the charges in the bill as to concealment must be answered, and the demm-rer was overruled: (Joint-Stock Discount Company v. Brown, Law Rep. 3 Eq. 139.) See also Turqnand v. Mar.tliall, Law Rep. 6 Eq. 112. A Company can maintain a petition for adjudication under sect. 87 of " The Bankruptcy Act, 1 SCI ," and the secretary may make the neces- sary oath. In such cases the practice is for the petition to be sealed with the corporate seal, and signed by two directors and the secretary : (Re Calthrop, Law Rep. 3 Ch. App. 252.) General Provisions ^ 45 Being sued at Law. A corporation should be sued in its corporate name. By the 2 Will. 4, c. 39, ss. 21, 22, 28, the process against corporations to enforce their appearance in a personal action is the same as in ordinary cases. As to the service on a corporation of the writ of summons, see " The Common Law Procedure Act, 1852," s. 16. By sect. 61 of " The Common Law Procedure Act, 1854," ia all causes in any of the Superior Courts, interrogatories in writing, upon any matter as to which discovery may be sought, may be deUvered to any of the officers of a body corporate. It has been held that the directors of a Company are officers within the meaning of the act : (Inchbald v. Weittem Neilyherry Tea Company, coram WUles, J., at Chambers, 26th Feb., 1864.) See the next case. In an action against a Company the court or a judge has power under the 14 & 15 Vict. c. 99, s. 6, and the 17 & 18 Vict. c. 125, s. 50, to order a director of the Company to allow inspection of their documents ia his possession. An affidavit of a director, in answer to an attachment for disobedience of such an order, stated that he had not on the day the order was made, or at any time since, the documents in his possession, custody, or power, and that ever since the order was made it had been out of his power to comply with it : it was held that the affidavit was insufficient ; and the court ordered the director to be examined viva voce before a master, under the provisions of the 46th section of "The Common Law Procedure Act, 1854:" (^Lacliarme v. The Quartz Rock Mariposa Gold Mininci Company, 1 H. & C. 134 ; 31 L. J. Ex. 508.) Where the plaintiff in a cause, who had obtained a judgment against an incorporated Company, applied imder sect. 60 of "The Common Law Procedure Act, 1854" (17 & 18 Vict. c. 125), for an order to examine certain of the directors as to what debts were owing to the Company, with the view of attaching such debts to meet the judgment-debt, it was held that where a corporation is the " judgment-debtor " the above- mentioned section does not apply : (Dickson v. The Neath and Brecon Railway Company, W. N. 1869, p. 20.) As to the service of notices on Companies, see sects. 62 and 63, infra. A Company may, of course, be sued on a contract, if the contract be a valid one at law. As to the law regulating the contracts of Companies, see supra. Where, however, a Company under this act has contracted since the 1st of September, 1867, the contract comes within the provisions of sect. 37 of " The Companies Act, 1867." The plaintiff was retained, by resolution of the directors of a public Company, as broker, to dispose of the shares therein, upon the terms that he was to receive 100/. down, and 4001. more when all the shares should have been allotted. By the act of the directors, without any default on the part of the plaintiff, the Company was wound-up before the whole of the shares had been disposed of ; and it was held, that the plaintiff was entitled to recover, as damages for the breach of contract such sum as a jury (or the court substituted for a jury) should thini reasonable : (Iiichhald v. The Western Neilgherry, Coffee, ^c, Company, 17 C. B. N. S. 733 ; 34 L. J. C. P. 15 ; 11 Jur. N. S. 1129 ; 11 L. T. N. S. 345.) 46 The Gonvpanies Act, 1862. With regard to torts, an action of trover is sustainable against a cor- poration, also an action for a false return (Yarborough. v. The Bank of England, 16 East, 6) ; or for a distress (Smith v. Birmingham and Staffordshire Gas Company, 1 Ad. & E. 526) ; and also for trespass (Maundy. Monmouth Canal Company, 2 Dowl. N. S. 11.S ; 4 Man. & G. 452^ ; and for negligence (Cowley v. Mayor of Sunderland, 6 H. & N. 565). Trespass for assault will lie : and a corporation is liable for a libel published by its order : ( Whitfield v. South Eastern Railway Company, E. B. & E. 115 ; 27 L. J. Q. B. 229.) A corporation may be liable for intentional acts of misfeasance by its servants, provided the acts are connected with the scope and object of its incorporation ; as (where the defendants were a Company established for conveying passengers in omnibuses) for wilfully molesting the plaintiff's carriages on the highways, by driving the defendants' carriages so as to obstruct the plaintifi in the use of his : (Green y. London General Omnibus Company, 7 C. B. N. S. 290 : 29 L. J. C. P 13.) As to whether an action for malicious prosecution will he, see Lawson V. Bank of London (25 L. J. C. P. 188 ; 18 C. B. 84), and Stevens v. Midland Railway Company (10 Exch. 352 ; 29 L. J. Ex. 328). And an action was maintained against a corporation for keeping a mischievous dog, accustomed to bite, with laiowledge of his pro- pensities : (Stiles y. Cardiff Steam Navigation Company, 33 L. J B 310; 4 N. R. 483, Q. B.) An action may be brought against a Company for the fraudulent misrepresentation of their agent acting in the course of his business. The plaintiff having for some time, on the guarantee of the defendants, a banking Company, supplied J. D., a customer of theirs, with oats on credit, for carrying out a government contract, refused to continue to do so unless he had a better guarantee. The defendants' manager thereupon gave him a written guarantee to the effect that the customer's cheque on the bank in plaintiff's favour, in payment for the oats supplied, should be paid, on receipt of the government money, in priority to any other payment, " except to this bank." J. D. was then indebted to the bank to the amount of 12,000?., but this fact was not known to the plaintiff, nor was it communicated to him by the manager. The plaintiff thereupon supplied the oats, to the value of 12-271. ; the government money, amounting to 2676Z., was received by J. D., and paid into the bank ; but J. D.'s cheque for the price of the oats, drawn on the bank m favour of the plaintiff, was dishonoured by the defendants, who claimed to retain the whole sum of 2676?. in payment of J. D.'s debt to them. The plaintiff having brought an action for false representation and for money had and received, it was held, first, that there wa^ evidence to go to the jury that the manager knew and intended that the guarantee should be unavailing, and fraudulently concealed from the plaintiff the fact which would make it so. Secondly, that the defendants would be hable for such fraud in their agent. And, thirdly, that the fraud was properly charged in the declaration as the fraud of the defendants : (Barwick v. English Joint-Stock Bank, Law Rep. 2 Ex. A Company is affected by notice to its servants as to matters to which 4 N.t'48trBr33'i STb'sW f^"'^"'" '""'''''""' ^'"»^««^' E^Ltco:pL7'ls-hfrM^U'\sT^ ^^ '^"-^•""- ^"^ General Provisions. 47 Being sued in Equity. Where a Company was restrained from infringing a patent, the directors of the Company were ordered to pay the costs of the suit : {Belts V. De Vitre, 5 N. R. 165 ; on appeal, Law Rep. 3 Ch. App. 429 ; 37 L. J. Ch. 325.) A shareholder is competent to sue in equity, on behalf of himself and aU the other shareholders (though some were assenting parties to the transaction) to have an ultra vires transaction of the Company set aside ; (Clinch V, Financial Corporation, Law Rep. 5 Eq. 450 ; confirmed on appeal, W. N. 1868, p. 246.) See also Atwool v. Merryweather, Law Rep. 5 Eq. 464. The plaintiff, having lost money by speculating Jn the shares of a Company, purchased five shares, for the purpose of qualifying himself as a shareholder, and then filed a bill, on behalf of himself and the other shareholders, against the Company and other persons, impeaching certain transactions between them, on the ground of fraud. The bill also impeached certain preliminary proceedings which had been taken for the purpose of winding-up and reconstituting the Company. After the bill was filed, the Company was wound-up and reconstituted. The defendants put in answers which were excepted to for insufficiency, and, while the exceptions were pending, they moved to take the bOl off the file, or to stay proceedings : it was held (affirming the order of Malins, V.C.), first, that at that stage of the cause, the defendants not having sufficiently denied the charges of fraud, the mala fdes of the plaintiff in filling the bill was no ground for taking the bOl off the flile : secondly, that the small interest of the plaintiff was no objection to the bill, as it was filed on behalf of himself and other shareholders : thirdly, that as the bill impeached the preliminary proceedings in the winding-up, the fact of the Company having been wound-up subsequently was no ground for staying the proceedings : (Seaton v. Grant, Law Rep. 2 Ch. App. 459 ; 36 L. J. Ch. 638 ; 16 L. T. N. S. 758.) A bill filed by one Company against a rival Company, alleging that they were acting ultra vires and contrary to the pubUc interest, but alleging no private injury, is demurrable : (2'Ae Stockport District Water- works Company v. The Mayor, IfC, of Manchester, 9 Jur. N. S. 266, Ch., on appeal ; 17 L. T. N. S. 545.) A Company may be treated as having as a Company been guilty of fraudulent misrepresentation : (Be Life Association of England, Ex parte Blake, 34 Beav. 639 ; 34 L. J. Ch. 278.) Where directors entered into an agreement to cancel shares in a Company then standing in the plaintiif's name, which under the special powers contained in the articles they were empowered to do, specific performance was granted of the agreement against the Company after a winding-up had commenced : (Marshall v. Glamorgan Iron and Coal Company, Law Rep. 7 Eq. 129.) See as to suits against Companies to rescind share taking contracts on the ground of fraud and misrepresentation, sect. 23, infra, especially the cases of The Western Bank of Scotland v. Addie, Law Rep. 1 H. L., Scotch App., 145 ; Tlie Directors, Sj-c, of The Central Railway Company of Venezuela v. Kisch, Law Rep. 2 H. L. 99 ; Re Overend, Gurney If Co., Oakes v. Turquand, Law Rep. 2 H. L. 325 ; and Ross v. Estates Invest- ment Company, Law Rep. 3 Ch. App. 682. Where a plaintiff — shaving been struck off the register of a Company by an order of the court, on the ground of excess in the objects of the 48 The Comjpcmies Act, 1862. Company as shown by the memorandum registered after he became a member over those stated in a prospectus on the faith of -which he took shares — filed a bill for the return of his deposit money against the directors who issued the prospectus and the Company, not alleging fraudulent intention, a demurrer by the Company was allowed on the ground that the money in their hands was not impressed with a trust : (Stewart v A ustin, Law Rep. 3 Eq. 299.) See also Moseley y. Cressey's Company, Law Kep. 1 Eq. 405 ; 12 Jur. N. S. 46. Books and documents which are in the possession of a Company are for purposes of discovery in the possession or power of the directors. In answer to an order against a Company, its directors, managing director, and secretary, for the production of documents, the directors filed affidavits stating that they had not in their possession or power any documents other than those which might be in the possession of the Company. They afterwards made further affidavits, in which they stated that they had no documents whatever in their possession or power : it was held that the aflBidavits were insufficient ; and that the defendants were boimd to give upon oath all the information La their power as to the documents in possession of their Company : (Clinch v. Financial Corporation, Law Rep. 2 Eq. 271 ; 12 Jur. ]Sr. S. 484.) See also Acomb v. The Landed Estates Company, W. N. 1866, p. 87. (g) And a common seal.l — By sect. 41 of this act, the name of the Company must be engraven in legible characters on its seal. Stat. 27 Vict. c. 19, post, now enables joint-stock Companies carrying on business in foreign countries to have official seals to be used in such countries. Although an instrument sealed with the common seal of a Company is prima facie vaUd, yet if it be proved that the seal was affixed by a person having no authority for that purpose, the instrument is void as an act of the Company, see Mayor of Colchester v. Lou-ton (1 V. & B. 243, 244) ; and, as appears from the next case, the formalities prescribed by the regulations that govern the Company must be strictly observed. The quorum of directors in a Company, as prescribed by their special act (which incorporated "The Companies Clauses Act, 1845"), being three, the secretary affixed the seal of the Company to a bond, after having obtained the written authority of two directors at a private iuterview, and at another private interview the verbal promise of a third to sign the docmnent signed by the other two. On the Company being sued on this bond, it was held not liable on the ground that the seal was affixed without lawful authority, as it should have been affixed by the authority of the directors meeting together as a board : (^Darcy v. The Tamar, Kit Hill, and CuUimjton Railway Compani/, Law Rep. 2 Ex. 158.) Where a Company prescribed no partjcular formalities either in its Memorandum of Association or in its Articles as to the mode in which, or the persons in whose presence, its seal should be affixed to any docu- ment, and the seal was affixed to a deed without any resolution of the board of directors, but by the direction of the three persons who had the chief management of the affau^ of the Company, it was held that it must be considered to have been affixed by due authority : (Re Barjied's Bankint/ Company, Ex parte the Contract Corporation, Law Ren 3 Ch App. 105.) r ■ See also Totterdell v. The Fareham Blue Brick and Tile Company Law Rep. 1 C. P. 674 ; and Shears v. Jacobs, Law Rep. 1 C. P. 513. Oeneral Provisions. 49 The seal nmgt be affixed -with intent to render the instrument effectual, and it has been held that the affixing the conunon seal to the deed of con- veyance of a corporation did not pass the estate when the order to affix the seal was accompanied with a direction to the Company's clerk to retain the conveyance in his hands until accounts were adjusted with the purchaser: (Derby Canal Company v. Wilmot, 9 East, 360.) A biU of sale was executed under the common seal of a trading Com- pany. Opposite the seal were the names of two of the directors, who purported to sign as directors. The secretary, who was called as a witness, stated that " it was usual to affix the seal in the presence of the board and for two directors to attest it." It was held that the directors signing as above were not " attesting witnesses" within the meaning of the Bills of Sale Act (17 & 18 Vict. c. 36) : (Sheares v. Jacob, Law Kep. 1 C. P. 513.) See also DeffeU v. White, Law Eep. 2 C. P. 144. Qi) With such liability on the part of the members, §•£.] — See sect. 38 of this act as to the liability of the present and past members of a Company. The direct remedy of a creditor of an incorporated Company is solely against the Company and not against its individual members, as upon a contract with them. But though as between the Company and the member, the member might have a good legal or equitable defence to a call upon himself, he may be liable to contribute to the assets of the Company required for the payment of the Company's creditors : (Oakes V. Turquand, Re Overend, Oumey, and Co., Law Eep. 2 H. L. 325.) (€) A certificate of the incorporation of any Company, ^■c.] — ^When a Company changes its name under sect. 13, supra, the registrar must issue a new certificate of iucorporation, altered to meet the circumstances of the case ; and the change of name is not complete uutU the issue of this certificate : (Shackleford, Ford, and Co. v. Dangerfield ; lb. v. Owen, Law Rep. 3 C. P. 407.) (f) All the requisitions of this act, Sj-c, have been complied wifA.] — A Memorandum of Association of a Company, when brought to the office of the Registrar of Joint-Stock Companies for registration, was objected to by Tiim as going beyond the prospectus, whereupon the bearer of it then and there, without any communication with the persons who had signed it, made alterations to remove the objections of the registrar, who at once registered it in the altered form. It was held that, although the conduct of the registrar, in knowingly registering a document which had been thus altered, was most censurable, the Company was duly constituted, the certificate of registration bekig, imder this section, con- clusive evidence that the requisitions of the act had been complied with : (Re Barned's Banking Company, Peel's case, Law Rep. 2 Ch. App. 674.) "I think the certificate prevents-all recurrence to prior matters essen- tial to registration, amongst which is the subscription of a Memorandum of Association by seven persons, and that it is conclusive in this case, that all previous requisites had been complied with": (Oakes v. Turquand and Harding, Re Overend, Gurney, and Co., Law Rep. 2 H. L. 354. Lord Chelmsford, L.C.) In an action against a Company, registered under 19 & 20 Vict. c. 47, for breach of contract to employ and pay for services, certificates for shares issued imder its seal were held to be sufficient evidence of registration as against the Company: (Mostyn v. Calcott, Sfc, Company, 1 F. & F. 334.) -50 The Companies Act, 1862. See Banwen Iron Company v. Barnett, 8 C. B. 406, and 19 L. J. C. P. 17. See, also. The Prince of Wales Assurance Society v. The Athenxum Insurance Uociety, 3 C. B. N. S. 756, note. 19. Oopies of Memorandv/m and articles to he given to Members. — A copy of the Memorandum of Association^ (a) haying annexed thereto the Articles of Association, if any, shall be forwarded to every member, at his request, on pay- ment of the sum of one shilling or such less sum as may be prescribed by the Company for each copy ; and if any Com- pany make default in forwarding a copy of the Memorandum of Association and Articles of Association, if any, to a mem- ber, in ptirsuance of this section, the Company so making default shall for each offence iacur a penalty not exceeding one pound. (a) A copy of the Memorandum of Association, ^c] — Sects. 8, 9, and 21 of " The Companies Act, 1867," post, confer on Companies under this act certain powers of modifying the conditions contained in their Memo- randums of Association ; and sects. 8, 18, and 22 of that act provide for corresponding alterations to be made in every copy of the Memorandum of Association issued after such modifications. 20. Prohibition against identity of names in Companies. — No Company shall be registered (a) under a name identical with that by which a subsisting Company is already regis- tered, or so nearly resembling the same as to be calculated to deceive, except in a case where such subsisting Company is in the course of being dissolved and testifies its consent in such manner as the registrar requires ; and if any Com- pany, through inadvertence or otherwise, is, without such consent as aforesaid, registered by a name identical with that by which a subsisting Company is registered, or so nearly resembling the same as to be calculated to deceive, such first-mentioned Company may, with the sanction of the registrar, (&) change its name,(c-) and upon such change being made the registrar shall enter the new name on the register ui the place of the former name, and shall issue a certificate of incorporation altered to meet the circumstances of the case ; but no such alteration of name shall affect any rights or obhgations of the Company, or render defective any legal proceedings instituted or to be instituted by or against the Company, and any legal proceedings may be contmued or commenced against the Company by its new name that might have been continued or commenced against the Company by its former name. Distribution of Capital. 51 (a) No Company shall be registered, ^-c] — A Company cannot, by- user, acquire an exclusive right to use, in its title of incorporation, a general term descriptive merely of the locality with which the business carried on by the Company is connected ; and the Court of Chancery will not restrain the use of such general term by a new Company, even though it be in evidence that the former Company may have been prejudiced by similarity of name : (^The Colonial Life Assurance Com- pany V. TTie Home and Colonial Assurance Company, 33 L. J. Ch. 741 ; 10 Jut. N. S. 967.) An injunction moved for by " The London Insurance" to restrain a recently-constituted Compsmy, registered under this act, from calling themselves "The London and Westminster Insurance Corporation," on the ground of similarity of title, was refused : (Ihe London Insurance V. The London and Westminster Insurance Corporation, 9 Jur. N. S. 843, Ch. ; 8 L. T. N. S. 497.) (V) With the sanction of the registrar.l — ^Under sect. 13, supra, the approval of the Board of Trade is necessary before a Company can change its name ; here the sanction Of the registrar only is required. (c) Change its name-l — As to a Company changing its name, see sect. 13, supra, and Shackleford, Ford, and Co. v. Dangerfield (Law Kep. 3 C. P. 407.) 21. Prohibition against certain Companies holding land. — No Company formed for the purpose of promoting art, science^ religion, charityj or any other like object, not in- volving the acquisition of gain (a) by the Company or by the individual members thereof, shall, without the sanction of the Board of Trade, hold more than tvfo acres of land ; but the Board of Trade may, by licence (&) under the hand of one of their principal secretaries or assistant secretaries, empower any such Company to hold lands in such quantity and subject to such conditions as they think fit. (a) Not involving the acquisition of gain.'] — ^As to associations formed for purposes not of gain, see now " The Companies Act, 1867," s. 23. (b) By licence.J—The form of the Uoence of the Board of Trade will be found in the second schedule to this act, Form F., post. PAET II. DISTRIBUTION OF CAPITAL AND LIABILITY OF MEMBERS OF COMPANIES AND ASSOCIATIONS UNDER THIS ACT. DISTRIBUTION OF CAPITAL. 22. Nature of interest in Gompamy. — The shares (a) or other interest (&) of any member in a Company under this act shall be personal estate, (c) capable of being transferred in manner 52 The Oompanies Act, 1862. provided by the regulations of the Company, (cZ) and sha,ll not be of the nature of real estate, and each share shall, in the case of a Company having a capital divided into shares, be distinguished by its appropriate number. (a) The shares, ^•c.]— By sect. 8, supra, the Memorandum of Association of a limited Company shall contain the amount of capital with which the Company proposes to be registered, divided into shares of a certain fixed amount. Shares may be fully paid up in money or in money's worth received by the Company, see post. By sect. 25, infra, the register of members of a Company shall con- tain a statement of the shares held by each member, and of the amount paid or agreed to be considered as paid on such shares. As to the effect of the conversion of shares into stock, see sects. 28 and 29, infra. As to certificates of shares or stock to be issued by a Company, see S6Cij 3 1 Itl JTOf By "'The Companies Act, 1867," ss. 27—36, a Company limited by shares, if authorised so to do by its regulations as originally framed, or as altered by special resolution, may issue in the name of the bearer warrants of fully paid-up shares or of stock. By sect. 12, supra, a limited Company may increase its capital by the issue of new shares of such amount as it thinks ejipedient ; or it may divide its capital into shares of larger amount than its existing shares, and by " The Companies Act, 1867," ss. 21 and 22, such a Company may divide its shares into shares of smaller amount. As to the effect of an unauthorised issue of shares by a Company, see Felling and Rimington's case, Re Financial Corporation (Law Kep. 2 Ch. App. 714), and Re New Zealand Banking Corporation, SewelPs case (Law Eep. 3 Ch. App. 181). As to the making and recovery of calls upon shares, see sect. 70, infra. As to calls upon shares, see also sect. 24 of " The Companies Act, IS67," post. As to the issue of preference shares, see ante. As to the forfeiture and cancellation of shares, see ante. As to a hen of a Company on the shares of its members, see ante. Where a judgment is recovered at law against the owner of shares in a Company the judgment-creditor may make the shares available for the payment of the debt by applying to a judge for an order charging the shares of the judgment-debtor with the payment of the amount for which judgment has been recovered, and costs and interest thereon pursuant to the stat. 1 & 2 Vict. c. 110 : (see Foivler v. Churchill, 11 M. & W. 57 ; and Robinson v. Burbidgc, 9 C. B. 289.) The mode of proceeding is to obtain a rule nisi in the first instance, ex parte, and without notice to the debtor. The form of the rule nisi is that unless cause be shown to the contrary by the judgment-debtor within a given time the shares in the Company standing in the name of , shall be, and shall in the meantime stand charged with the payment of the amount for which judgment has been recovered, and costs and interest thereon pursuant to the stat. 1 & 2 Vict. c. 110 : (see the cases last above cited.) The effect of this rule is to restrain the Company from permitting a transfer of the shares held by the debtor or by any person in trust for him until the rule is made absolute or discharged ; and, if the Company Distribution of Oapital. 53 permits a transfer of the debtor's shares during the continuance of the rule, the Company becomes liable to the creditor to the amount of the value of the shares transferred : (see 1 & 2 Vict. c. 110, ss. 14 to 16 ; and 3 & 4 Vict. c. 82.) The shares, however, are not actually charged until the charging order is made ; but, on its beiag made, such am order has the same effect as a charge made by the debtor himself in favour of the creditor, subject to this qualification, that no proceeding can be taken to have the benefit of the charge created by the order until after six months from its date : (see Bristed v. Wilkins, 3 Ha. 235 ; Reece v. Wilkins, 5 De G. & S._480.) If the creditor has his debtor arrested before the shares have been applied in satisfaction of the debt, he cannot avail himself of the benefit of the charging order : (1 & 2 Vict. c. 110, s. 116.) When a judgment-debtor held shares in trust, the court refused an application to rescind a charging order that had been made on shares so standiag in his name on the register of a Company : (Cragg v. Taylor, Law Rep. 1 Ex. 148.) See, also, Rogers v. Holloway, 5 Man. & G. 292. The interest of a cestuique trust may also be charged, and that even when it is only contingent, under 1 & 2 Vict. c. 110, s. 14, and 3 & 4 Vict. c. 82, s. 1 : {Cragg v. Taylor, W. K. 1867, p. 87.) As to obtaining a charging order under a decree or order of the Court of Chancery, see Wells v. Gihbs (22 Beav. 204), Westby v. Westby (5 De G. & S. 516), and Stanley v. Bond (7 Beav. 386). (V) Or other interest.'] — These words include the interest of a member of a mutual Company in which there are no shares. (c) Personal estate."] — It has been held that dealing in shares in a joint- stock Company is not trading under the bankrupt laws, on the ground that shares are not "goods and commodities" within the meaning of " The Bankruptcy Act, 1849," s. 65 : (Re Cleland, Law Rep. 2 Ch. App. 466 ; 16 L. T. K. S. 403.) It has been decided, however, that they are goods and chattels within the meaning of sect. 125 of "The Bankruptcy Act, 1849" (12 & 13 Vict. c. 106), by which it is enacted, " that if any bankrupt at the time he becomes bankrupt shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition any goods or chattels whereof he was reputed owner, or whereof he had taken upon bim the sale, alteration, or disposition as owner, the court shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy :" (Ex parte Lancaster Canal Company, Mont. 116 ; Mont. & B. 94 ; Ex parte Lawrence, De G. 269 ; Ex parte Vallence, 2 Deac. 354; and Ex parte Boulton, 1 De G. & J. 163.) A bankrupt will be deemed to have shares "in his possession, order, or disposition " if he has the power of giving a vaMd discharge for the money payable in respect of them, and the power of transferring them as if they were his own. A mere assignment of shares by way of mort- gage or otherwise, however biading as against the assignor, will not take them out of the order and disposition of the assignor, in case of his becoming bankrupt, unless notice of the assignment has been given to the Company whose shares they are : (Ex parte Nutting, 2 M. & D. 302 ; Ex parte LittUdale, 6 De G. M. & G. 714.) The fact of shares continuing registered in the name of the bankrupt will not leave them " in his possession, order, or disposition " if he has dealt with them so as to confer an interest in them on another, and the 54 The Companies Act, 1862. Company has notice of such dealing : (^Morris v. Cannan, 8 Jur. N. S, 663 ; 6 L. T. N. S. 17, 521.) It is not material by whom the notice is given, see Re Kawbone (3 K. & J. 300), and Re Targuand (20 Beav. 20) ; and it was recently held by the Court of Chancery Appeal (Re Agra Bank, Worcester's case, Law Rep. 3 Ch. App. 555) that where directors of a Company, in the course of transacting the business of a Company, received verbal information from the assignor of shares of the fact of his having assigned them, such information, though not recorded in the books of the Company, was sufficient notice to take them out " of the possession, order, and disposition " of the assignor on his afterwards becoming bankrupt. See, also, Ex parte Richardson (M. & Ch. 48), Gale v. Lewis (9 Q. B. 730), North British Insurance Company v. Hatlett (7 Jur. N. S. 1263 M. R.), and Re Shelley (5 N. R. 200, L. C). But see Edwards y. Martin (Law Rep. 1 Eq. 121), where knowledge casually acquired by a secre- tary was not considered sufficient notice. As to notice to one director or officer of a Company being notice to the Company, see Broum v. Savage (4 Drew. 635), Ex parte Nutting (2 M. D. & De G. 302), and Ex parte Boulton (1 De G. & J. 163 ; 26 L. J. Bank. 45). As to shares pledged with a director, without whose consent they cannot be transferred, being taken out of the order and disposition of the shareholder, see Ex parte Harrison (3 !M. & A. 506). A mere equitable interest in shares wUl not entitle the owner of it to impeach, either in equity or at law, the legal ownership, or even the legal right to be registered, acquired by a hona-fide purchaser for value without notice of such prior equitable interest. Tlus is iUiistrated by the case of Dodds v. HiUs (2 Hem. & Mil. 424), in which a sole trustee of shares executed a transfer, and dehvered it, with the certificates of five shares, to a mortgagee who had no notice of the trust. The mortgagee did not register his transfer until after notice of the trust. It was held that the transfer could not be impeached, and also that the fact of the certificates showing that the shares had formerly stood in the names of two persons, was not enough to put the mortgagee on inquiry or fix him with notice. See, also, Donaldson v. Gillot (Law Rep. 3 Eq. 274), in the case of Ward V. The South-Eastern Railway Company (2 E. & E. 812), in which it was held that a railway Company, having entered on its register a hond-Jide purchaser of stock from a registered holder, was not entitled to cancel the registration, although the transferor was a married woman, supposed by the Company to be single, and was a trustee for a person who was indebted to the Company. Where a share is equitably assigned, or mortgaged more than once, the assignee or mortgagee who has first given notice of his claim on the shares to the Company will be entitled to priority over an assignee or mortgagee whose notice has been subsequently given, and that even when the assignment or mortgage of the latter was created before that of the former : (Cummiiig v. Prescott, 2 Y. & C. Ex. 488.) The price of shares may be recovered in an action for " goods and chattels" sold and delivered: (Lawton v. Hickman, 9 Q. B. 563) ; and see Pierrqwint v. Brewer (10 Jur. 79) as to their being property in respect of whicli bail may justify. Shares in a Company incorporated under " The Companies Acts, 1856 and 1857," were held not to confer upon the holder a right to vote for Distribution of Capital. • 55 a member of Parliament in respect of lands held by the corporation : (Bulmer v. Norris, 9 C. B. N. S. 19.) (d) In manner provided by the regulations of the Company.'] — These ■words confer upon every shareholder ia a Company under this act the right of transferring his shares to another and placing him in the position of the transferor. The transferor of shares, however, is liable, by sect. 38, infra, for a period of one year after the date of the transfer to contribute, in case of a winding-up of the Company, in respect of any debt or liability of the Company contracted before the time of the transfer. Shares may be transferred according to the particular form prescribed by the regulations of the Company ; and the owner may, by contract, bind them in equity like any other description of property : (Shepherd v. Gillespie, Law Rep. 3 Ch. App. 764.) A form of transfer will be found in the first schedule to this act. Table A. It appears that, 'although shares may be transferred by instruments in other forms than those prescribed, the Company may refuse to register them if they are complicated and differ substantially from those prescribed by the regulations : (Copeland v. North Eastern Railway Company, 6 E. & B. 277 ; Beg. v. General Cemetery Company, lb. 415.) Shares are property within the meaning of the Stamp Act ; instru- ments of transfer therefore must state the true consideration for the transfer, and be stamped accordingly. Shares standing in the names of trustees or lunatics may be trans- ferred, as the case may require, under an order of the Court of Chancery or an order in lunacy : (Re Angela, 5 De G. & Sm. 278 ; Re Ives, 9 Jur. N. S. 611.) Transfer to an Infant. A transfer to an infant is not absolutely void, but only voidable, and the infant may, on coining of age, elect to take the shares (Re Blakely Ordnance Company, Lunsden's case, Law Rep. 4 Ch. App. 31, post) ; but, when a winding-up order is made before the infant comes of age, and whUe the shares are registered in the name of the infant, the infant cannot be placed on the list of contributories, and the trans- feror continues liable : (China Steam Ship and Ldbuan Coal Company, Capper's case. Law Kep. 3 Ch. App. 458.) The facts of this case were as foUows : — In June, 1865, S., having bought in the market shares belonging to C, gave the name of A. as the transferee, and C. accordingly transferred them to A., who was registered as owner. A. was a clerk of S., and was an infant. In November, 1865, C. received a letter from the solicitors to the Company, informing him that A. was an infant, and applying to hiTn for payment of a call. C. having found upon inquiry that his share certificates had been cancelled and new certificates issued to A., took no further notice of the matter, and no further step was taken on either side till January, 1867, when the appUcation for the call was renewed, after a resolution for winding-up the Company had been passed. It was held (affirming the decision of the Master of the RoUs) that C. must be on the list of contributories. See, also, Be Joint-Stock Discount Company, Mann's case. Law Rep. 3 Ch. App. 459 ; Re Imperial Mercantile Credit Association, Curtis's case. Law Rep. 6 Eq. 455 ; Re Alexandra Park Company, Hart's case. Law Rep. 6 Eq. 512; and Re Barned's Banking Company, Delmar's case, W. N. 1868, p. 247, post. 66 The Companies Act, 18G2. As to an infant shareholder being bound, unless he repudiates his con- tract, to take shares within a reasonable time after obtaining majority, see The Dublin and Wicklow Railway Company v. Black (8 Exch. 181). Sale of SJiares. A contract for the sale of shares is not within the 17th section of the Statute of Frauds. This was decided as to Joint-Stock Banking Companies in Humble v. Mitchell (11 Ad. & E. 205) ; as to shares in a Canal Company in Latham v. Barber (6 T. R. 67) ; as to railway shares in Bowlby v. Bell (3 C. B. 284) and Tempest v. Kilner (lb. 249) ; as to shares in a mining Company in Watson v. Spratley (10 Exch. 222) ; and as to sales or contract to deliver foreign stock consisting of bonds and certificates in Heseltine y. Siggers (1 Exch. 856). The court in the last case cited observed that a sale of such securities is not like a sale of speoLflc goods. It passes no property until delivery, and, in effect, it means only a contract to deliver some shares. So far then, as the Statute of Frauds is concerned, contracts for the sale of shares need not be in writing. Time bargains for the sale of stock in the British funds were rendered illegal by 7 Geo. 2, c. 8, known as " Sir John Barnard's Act." This enactment was repealed by 23 Vict. c. 28 : (see post.^ But with respect to sale and purchase of shares and stock in Joint-Stock Banking Companies, it is provided by 30 Vict. c. 29, post, that contracts for the sale of such shares are to be "null and void to all intents and purposes," unless the numbers by which such shares are distinguished are set forth in the contract, or, if there is no register of such shares, unless the contract sets forth the person in whose name such shares shall stand at the time of making the contract as the registered proprietor in the books of the banking Company. It is imphed in a contract for the sale of shares that the transfer is to be made within a reasonable time. If the sale is made through brokers, the rules of the Stock Exchange respecting the time within which shares sold are to be delivered to the purchaser are admissible in evidence upon the question of reasonable time : (^Steivart v. Cauty, 8 M. & W. 160 ; Field v. Lelean, 6 H. & N. 617.) Usage of the Stock Exchange. A broker is one who makes bargains for another and receives a com- mission for so doing : (Pott v. Turner, 6 Bing. 706.) A sharebroker, however, is dealt with usually as a principal, and is therefore boimd to the completion of his contract to buy or sell shares. The object of their thus acting as principals appears to be to secure the passing of the purchase-money through their hands, and to prevent its being paid to their principal : (Child v. Morleu, 8 T. R. 610 : Jones v Littkdale, 6 Ad. & E. 486.) In case a transfer is founded upon a previous agreement to transfer for value, this is usually carried into effect by the intervention of brokers. These buy and sell, in accordance with the rules and usages of the Stock Exchange ; and any person employing a broker to buy or sell scrip or shares will, in the absence of any express agreement to the contrary, be deemed to have authorised him to act conformably to the rules of the Stock Exchange. Therefore, a person employing a broker to buy or sell scrip or shares is deemed impUcitly to warrant to mdemmfy hmi for any breach of contract which may be caused by the default of the principal. The natm-e of this implied right to indemnity Distrihution of Capital. 57 on the part of the broker where the broker is employed to sell shares is exemplified in the cases of Sutton v. Tatham (10 Ad. & E. 27), Bayliffe V. Butterworth (1 Exch. 425). The principle, as applying where the broker is employed to buy, is illustrated by the cases of Stray v. Russell (1 E. & E. 888), Taylor v. Stray (2 C. B. N. S. 175), and Bayley v. Wilkins (7 C. B. 886). These oases -Brere decided on the ground that the usage of the Stock Exchange on the point in question was imphedly part of the contract. The principal is bound by the usage of the brokers of the particular place where the contract is entered into, whether he himself knows, or not, the usage in question. "I think," said Denman, C.J., "a person employing one who is notoriously a broker must be taken to authorise his acting in obedience to the nUes of the Stock Exchange." Little- dale, J., as to the same matter, observes : — " A person who employs a broker must be supposed to give liim authority to act as other brokers do. It does not matter whether he himself is acquainted with the rules by which brokers are governed " : (^Sutton v. Tatham, 10 Ad. & E. 27.) If the principal, therefore, cannot procure the shares he has con- tracted to sell or pay the difference (if amy) in price to the purchaser, the broker, on paying this sum, can recover it from the principal: (S. C. ; Child v. Morley, 8 T. R. 614.) The case of Chapman v. Shepherd (Law Rep. 2 C. P. 228) throws peculiar light upon this status of brokers. In that case it was held that a broker who had bought shares for a customer in a Company, and who had, in accordance with the rules and regulations of the Stock Exchange, been compelled to pay the price of them to the person from whom he bought, was entitled to recover back from his principal the money so paid. The principal sought to repudiate his UabOity on the ground that a petition to wind-up was presented before the contract was completed by transfer, and that, consequently, it was rendered void under sect. 153, infra. The court, however, held that the effect of that section was not to make the contract void inter partes, especially since it was in the discretion of the Court of Chancery to allow it to operate as a transfer to aU intents. In another case (Brederman v. Stcme, Law Kep. 2 C. P. 504) the plaintiff, a broker on the Stock Exchange, sold for the defendant thirty shares in a Company after it had commenced to wind-up voluntarily. The sanction of the liquidator, as required by sect. 131, infra, had not been obtained to the transfer. The defendant upon that ground refused to execute a transfer ; whereupon the plaintiff was compelled, by the rules of the Stock Exchange, to furnish to the buyer other shares in the same Company, for which he paid an advanced price. It was held that as the statute made in such a case a transfer of shares without the sanction of the liquidators only void, but not iUegaJ, the defendant was hable to an action for refusing to execute the transfer, and was so, whether.it was the duty of the buyer or of the seller to obtain the required sanction. A broker, in short, is entitled to recover from his principal aU money paid by him under the terms of his engagement, and can recover the same as so much money paid, even though the principal may not have been relieved from a liability by the payment: (Briitain v. Lloyd, 14 M. & W. 762 ; Westropp v. Solomon, 19 L. J. N. S. C. P. 1.) If the shares in which the broker has dealt have been forged, in con- sequence whereof he has been compelled to refund the price he had received, he can recover it from his principal: (Westropp v. Solomon, 19 L. J. N. S. C. P. 1.) 58 The Gomjpcmies Act, 1862. In like manner, if a broker employed to buy finds his principal unable or un-willing to pay the price, and pay it to the seller's broker, he can then sue his principal for so much money paid to his use, and he will be entitled to recover. If it be usual for brokers to make the contract in their own name, the principal will be affected with implied notice of such usage ; (Bayliffe v. Butterworih, 1 Exch. 425 ; 5 Kail. C. 238 ; 17 L. J. N. 8. Ex. 78.) In the case of Bayley v. Wilkins (7 C. B. 886 ; 18 L, J. N. S. C. P. 273) the defendant ordered the plaintiff, a stockbroker, to purchase for him twenty shares ia a certain railway at a certain price, which was done accordingly. The defendant paid the amount with commission, and the transfer was made. Before the sale a call had been made, but was not then due, and no mention was made of it. Immediately after the sale the vendor paid up the call though not then due, which it was necessary to do in order to make the transfer. The plaintiff, pursuant to a rule of the Stock Exchange, " that if a call has been made on registered shares, the seller is authorised to pay the same, though not due, and claim the amoimt of the purchaser," paid the vendor the amount of the call. The court held that the defendant, in employing a broker on the Stock Exchange, must be taken to have contemplated that which was the rule of the Stock Exchange, and that the plaintiff was entitled to recover the amount paid over from the defendant in an action for money paid to the defendant's use. Where a broker sold foreign bonds for his principal, and paid him the amount, and the bonds, after coming into the hands of the purchaser, were found to be imsaleable on the Stock Exchange, owing to their being unstamped, whereupon the broker took them back and reimbursed the purchaser, as he was boimd to do by the usage of the Stock Exchange, it was held that the broker was entitled to recover from his principal in an action for money had and received the amount he had paid him : (Younger. Cole, 3 Bing. N. C. 724.) Although a contract for the sale and purchase of shares where neither party intends to deliver or to accept them, but merely to pay " differences" according to the rise or fall of the market, is gaming within the 8 & 9 Vict. c. 109, s. 18 (see Grizewood v. Blane, 11 C. B. 638; Rees v. Fernie, 4 N. R. 539), yet a broker who has paid money for hia principal in respect of such " differences " can recover it from his principal : (Rosewarne v. Billing, 15 C. B. N. S. 316.) It is plain that the contracts entered into by brokers are controlled by the usage of the particular place, "\^^le^ever general or local rules of the trade do not apply, then, of course, the relations of the broker to the principal are governed by the general law of agency. If a broker, there- fore, receives money from his principal for a particular purpose, on the strength of which he enters into a contract, but it is not completed within a reasonable time, he is bound to return the money to the principal; and the principal may forbid the broker giving an exten- sion of time to his contractor : (Fktcher v. Marshall, 15 M. & W. 755 : 5 Bail. C. 340.) ' It was held, in Rooney v. Palmer (9 Ir. Law Rep. 327), that a stock- broker negotiating the sale of shares is not a promoter within the meaning of 7 & 8 Vict. c. 110, s. 24, which imposes a penalty on the "promoters" or persons employed by or under them taking before provisional registration moneys in consideration of the allotment, &c., or making any contract in the name or on behalf of the intended Company. Distribution of Gapiial. 59 The duty of a broker employed to purchase shares is only to use reasonable diligence in endeavouring to procure them, and not to get them at all events : {Fletcher v. Marshall, 15 M. & W. 762 ; 5 Rail. C. 340.) Their duty is to buy what is commonly known in the market as the shares they are desired to buy : {Mitchell v. Newhall, 15 M. & W. 808 ; 4 RaU. C. 300 ; 15 L. J. Ex. 292.) There the defendant gave the plaintiff, a broker on the Stock Exchange, an order to pur- chase for him fifty shares in a foreign railway Company ; the defendant bought a letter of allotment for fifty shares, such letters alone, and not shares, being in the market, and being usually dealt in as if shares ; it was held that a jury might find that the order was properly executed. It appears that a broker employed to sell shares cannot be compelled by a suit in equity to procure a due transfer of the shares sold to the purchaser and a registration in his name of the shares : (Booth v. Fielding and Parkinson, W. N. 1866, p. 245.) Where a broker is authorised to buy shares, the authority may be revoked, and the money paid to him be demanded back at any time before he has acted upon his authority to buy them : (Fletcher v. Mar- shall, 15 M. & W. 755.) See, also, upon this point, M'-Ewen v. Wood (11 Q. B. 13) and Ross v. Moses (1 C. B. 227). If a broker buy or sell shares in an illegal Company, or in one which is not in a position legally to issue shares, he cannot recover com- mission from his principal on account of such an illegal transaction. In Josephs V. Pebrer (3 B. & C. 639), in assumpsit for work and labour and money expended in the pm'chase of shares in a concern called "The Equi- table Loan Bank Company," it appeared that the Company professed to have a capital divided into shares which were to be transferable without any restriction. No evidence was given to explain the objects of the Company. It was held that the Company was to be considered illegal, and within the operation of 6 Geo. 1, c. 18 (the celebrated " Bubble Act"), in having transferable shares and professing to act as a body corporate without authority by charter or act of Parliament, and that the plaintiff consequently could not maintain his action, which arose out of an illegal transaction. Sects. 18 and 19 of the Bubble Act, under which this case was decided, were repealed by 6 Geo. 4, c. 91. The case, however, is important as illustrating the position of brokers with reference to illegal Companies. No condemnation by the Stock Exchange Committee of a Company, such as refusing to nominate for it a settling day, or the hke, will render it illegal, unless it be essentially so according to law. As regards the sale of shares by auction, if an auctioneer sells shares without disclosing the name of his principal, he will be personally ha.ble for the completion of the contract : (Franhlyn v. Lamond, 4 C. B. 637.) See the case of Stray v Russell (1 E. & E. 888), as to a person who buys shares through a broker being compelled to pay for them, although the Company decSne to accept him as a shareholder. Dealers or Jobbers. Besides brokers there is another class of members of the Stock Exchange who are termed dealers or jobbers, and who hardly at aU come in contact with the public. The jobber acts as intermediate party between the broker who buys and the broker who sells, as J. Byles described him in his judgment in Grissell v. Bristowe (Law Rep. 3 C. P. 137) : "He is or may become a sort of middleman 60 The Oonvpanies Act, 1862. or provisional purchaser and vendor for both parties respectively ; and the advantage of employing him is this, that he at the same time and place provides a ready or rather an instant market both for buyer and seller. In ordinary cases he does not become the ultimate purchaser, and the shares may and do change hands many times before the ultimate purchaser is reached ; and they may even pass through the hands of several jobbers in succession. It is true the jobber receives no brokerage from either side, but is, I beHeve, paid by an equivalent very hke it, viz., the turn of the market or difference of price to buyer and seller." The jobber, however, makes a profit only in those cases ■where the turn of the market is in his favour ; it may be against him, and then he incurs a loss. On this subject generally, see Keyser on the Stock Exchange, p. 23. It is the duty, of course, of the purchasing jobber to supply the names of unobjectionable persons who have agreed and are bound to take the shares. As to the rules of the Stock Exchange (in 1861) with regard to recognising a Company, and fixing a settling day for it, see Barry v. Croskey (2 John. & H. 1). With respect to dealings in Companies whose shares are quoted in the official Mst of the Stock Exchange, where a broker is employed to buy or sell any such shares, he appUes to a jobber, who, without knowing whether the object of the broker is to buy or sell shares, names a price at which he is wUliug to buy shares in the particular Company, and a somewhat higher price, at which he is willing to sell shares in the same Company. Before a settling day is fixed, as hereinafter explained, no dealings for cash can take place, nor can any dealings be enforced by the rules of the Stock Exchange until after such settling day is fixed. After the first settHng day has passed, the broker or his employer may either require the bargain to be completed immediately, for money, or on the next account or settling day. Two settling days are appointed in each month by the Stock Exchange, and for these days all bargains for time are made. If the dealer is the seller, but has not the shares, it becomes his duty to procure them at once, or on the next account or settling day as the agreement may be. If the seller makes a default, he thereupon ceases to be a member of the Stock Exchange. The pin-chaser may then buy the number of shares stipulated for from somebody else, and charge the seUing jobber the difference in price (if any). These rules only apply to Companies recognised by the committee of the Stock Exchange. It recognises no Company until first satisfied by the directors and officers thereof as to the bona fides of the imder- taking, the allotment and issue of shares, the payment of deposits, and generally as to the constitution and position of tlie Company. The slang terms of the Stock Exchange are somewhat numerous. A wager on the price of stock, for instance, is termed a "put and refusal." The price at which stock is sold, to be transferred on the next settling day, is called the " price on account." If the completion of the bargam is deferred, this is called a " continuation ;" the price is then higher for account than for ready money. " Backadation," on the contrary, is the consideration given to keep back the delivery of stock when the price is lower for time tiian for ready money. The names of defaulters on the Stock Exchange are proclaimed there by one of the waiters ; and finally, perhaps, placed by the committee on the Black Board of the Stock Exchange : (see Wilkinson on Public Funds, p 155 et seq.) ^ Distribution of Gapiial. 61 It has been held that a jobber or dealer on the Stock Exchange who in the ordinary course of business has purchased shares in a Company, and has duly procured a nominee who has taken and paid for the shares, and to whom the original seller has transferred them, but who has not registered himself as the holder, is not under any implied liability to indemnify the seller against the payment of subsequent calls upon such shares. The usage of the Stock Exchange is that, in transactions between members of it, there is an implied understanding that, on the purchase of stock or shares, the buying jobber shall be at liberty by a given day, called the "name day," to substitute another person as buyer, and so relieve himself from further liabiMty on the contract, provided such sub- stituted person be one to whom the original seller cannot reasonably except, and that such person accept a transfer of the stock or shares, and pay to the original seller the price. This was held by the Court of Exchequer Chamber (reversing the judgment of the Court of Common Pleas) to be a reasonable usage, inasmuch as a usage founded on the general convenience of aU persons engaged in a particular department of business, cannot, as regards such persons, be said to be unreasonable. The plaintiff, the holder of shares in a Company called Overend, Gumey, and Co., through a broker, sold them to the defendants, jobbers on the Stock Exchange. After various sub-sales, the names of four persons were given to the plaintiff's broker as the persons to whom the shares were to be transferred. The plaintiff's broker thereupon prepared four transfers to those persons, and the plaintiff executed them, and the broker delivered them with the shares to the brokers of the proposed transferees, who thereupon accepted the shares, and paid the price to the plaintiff's broker. The transferees not having executed the transfers, or caused them to be registered, the plaintiff remained the registered holder of the shares, and was compelled to pay calls thereon. In an action against the defendants, claiming an indemnity against calls, it was held (reversing the judgment of the Court of Common Pleas) that the contract as interpreted by the usage of the Stock Exchange was, that the defendants, the first buyers, were to be at liberty to transfer the contract, with aU its rights and obligations, to any sufficient buyers (i. e., "buyers to whom the seller has no reasonable ground to object") who would take it upon them with aU its incidents; and that as the plaintiff had transferred the shares to the defendants' nominees, and the nominees had accepted and paid for them, though they had not executed or registered the transfers, the defendants were released from all further liability on their contract to the plaintiff : (firissell v. Bristowe and Another, Law Eep. 4 C. P. 36.) Kelly, C. B., iu his judgment in this most important case, after showing that when the practical effect of this usage or mode of dealing on the Stock Exchange came to be considered, there is no hardship or injustice in it as regards the interests of the public, went on to say : " This practice affords to the public the very great advantage of being enabled by means of a stockbroker and a jobber, to buy or sell at any moment any quantity of stock, or any number of any description of shares at -the market price of the day, and concluding the transaction at the latest on the settling day ; whereas without such a practice, every one having any given amount of stock, English, foreign, or colonial, or of debentures or shares in railways or other joint-stock Companies to buy or to sell, must wait until a buyer or seller could be found to sell or to buy the exact quantity of stock or of shares which is to be parted 62 The Oompmiies Act, 1862. with or acquired, a state of things which in this country, where some hundreds of those purchasers and sales are effected every day, would be found intolerable, and would speedily demand a remedy, than which no better could be devised than this practice so long established, and which has never until now been called in question." But where the vendor of shares sells them to a jobber, who on the same day passes the name of a person as the ultimate purchaser who has not agreed, and is not bound to purchase the shares on that day, the vendor of the shares is entitled to be indemnified by the jobber against calls subsequently made on the shares : (Maxted v. Paine, Law Rep. 4 Ex. 81.) The facts of this case were as follows : the plaintiff on the 24:th of May, 1866, through his brokers, sold to the defendant, a jobber, for the account of the 30th, thirty shares in a Company that had previously stopped payment and closed its transfer books. On the 29th, the name day, the defendant gave to the plaintiff's brokers the name of M. (which he had received from another jobber), as the ulti- mate purchaser and nominee of the shares. M. had sanctioned the pass- ing of his name for the account of the 15th of May, provided a legal .transfer of the shares could be effected, but the shares had been carried over from the 15th to the 30th without his authority, and on the 29th he was in fact, though not to the knowledge of the defendant, no longer a person who had agreed or was bound to purchase shares in the Company. The plaintiff had bought the shares resold by him to the defendant from S., the registered holder, and was under a contract to indemnify S. against future calls although no formal transfer had been executed. On the 8th of June, a transfer of thirty shares duly executed by S. was tendered to M., but declined by him. Two calls were after- wards made on the shares sold, and the plaintiff, after unsuccessfully applying to M. to pay those, was compelled under his contract with S. to pay them himself. It was held, on a special case, that the defendant had not by passing M.'s name as ultimate purchaser and nominee, relieved himself from liability, and that he was bound to indemnify the plaintiff against the calls. As to the liability of a jobber or dealer in equity, to indemnify the vendor of shares where a sale note was made "with registration guaran- teed," see Cruse v. Paine, Law Rep. 6 Eq. 641, infra. In the case of Torrington v. Lowe (Law Rep. 4 C. P. 26) the plaintiff, on the 10th of May, 1866, through his broker, sold, on the Stock Exchange, twenty shares, registered in his name, to P., a jobber, for the settKng day, the 15th of May. The defendant, on the 2nd of May, through his broker, bought of P. twenty shares in the same Company for the same account; and, on the day before the settling day, his broker having learnt from P. that the plaintiff's broker was to supply the twenty shares so pm-chased by liim, instructed P. to give the name of Cotton as the transferee. A transfer into the name of Cotton was prepared according to the custom of the Stock Exchange, and duly executed by the plaintiff and by Cotton. Cotton neither paid nor agreed to pay the defendant any sum in respect of the same ; and, although there was no ngvecment as to the terms on which the defendant was to make use of the name of Cotton, the former had authority to have the shares transferred into the name of Cotton as his nominee. A petition for winding-up having been afterwards presented, the liquidators re- fused to register the transfer, and placed the plaintiff on the list of contributories, and he was consequentiy obliged to pay certain calls. It was held, in an action brought to recover the amount of the calls, that Distribution of Capital. 63 the plaintiff was not entitled to be indemnified by the defendant against Buch calls, as there was no privity of contract between them. In this case the plaintiff failed because there was no privity of contract between him and the defendant, while, if P. sued the defendant, he might plead in bar of his liabihty the usage of the Stock Exchange, which enabled him to procure a substitute, paying the price, and otherwise unobjection- able. The plaintiff and Cotton being the parties to the deed of transfer, it was not competent for the plaintiff to aver that Cotton executed the deed as agent for the defendant, the doctrine of undisclosed principal not being appGcable to deeds. In the absence of evidence of there being any express usage of the Stock Exchange on the point, the question in this case appears to have been rightly determined ; and in eqviity the plaintiff would appear to be equally remediless against the defendant for want of privity. So far as the iisages of the Stock Exchange tend to settle the point, they are altogether in favour of the defendant. A sale of shares on the Stock Exchange is thus not unlike the logical argument sorites, in which the middle terms, no matter how numerous, are important only in carrying on the vis consequentix. So the actual contract of sale is only between the vendor and the final purchaser when once accepted by the vendor, and this no matter how numerous maybe the intervening links. It will be observed that in the case of GHssell v. Bristowe (Law Rep. 4 C P. 36) there was a privity of contract between the plaintiff in that case and his defendant, but the usage of the Stock Exchange defined the extent of UabDity entailed by that privity of contract. In Tor- rington v. Loioe (Law Rep. 4 C. P. 26), however, there was no privity of contract between the plaintiff and defendant, and no factitious privity created by any usage of the Stock Exchange. For decisions in equity with regard to jobbers or dealers on the Stock Exchange, see section infra, on " Specific Performance and Indemnity." Informal Transfers. Transfers in Blank (at Law). — It is the common practice in the share market to sign a deed of transfer with the name of the trans- feree in blank, no matter what may be the requirements for transfer directed by the Articles of Association of the Company in which the shares in question are. The buyer then may sell to a third party, who may sell to a fotuth, and so on : the name of the final purchaser alone being inserted. Where a transfer should be executed by deed this mode of proceeding, considered as a transfer, is obviously imper- fect, and null and void both at law and in equity. For a document purporting to be a deed must have all blanks fiUed before execution, else it is not a deed : (Com. Dig. Fait A. 1 ; Shep. Touch. 54 ; Weeks V. Maiilardet, 14 East, 568 ; Powell v. Duff, 3 Camp. 181.) A deed cannot be made transferable or negotiable as a bill of exchange or exchequer bill ; and, consequently, thas Stock Exchange custom of trans- ferring in blank cannot operate at law to give a document the legal character and incidents of a deed. The instrument in blank, there- fore, does not at law, where there is a provision in the articles that transfers are to be by deed, transfer the ownership in the shares to which it relates, even as between the vendor and vendee. It is only, however, as a deed that a transfer in blank is worth- less. If a deed be required for the transfer, then a transfer in blank is good evidence of the contract ; and, if the transfer in the particular case does not require any formal document, as in the case of a cost- book mining Company, a transfer in blank doubtless completes the 64 The Companies Act, 1862. contract. In Walker v. Bartlett (18 C. B. 845), a transfer in blank of a share in a cost-book mining Company was held to entail upon the transferee the liability to inderamfy the transferor against calls, though not to subject him to the obligation of getting his name registered m lieu of that of the transferor. Transfers in Blank (in Equity).— A transfer in blank, if inoperative as a deed at law, is equally so in equity ; but its invalidity as a deed does not affect the contract for sale in equity. Ths Court of Chan- cery, therefore, wiU decree a specific performance of the contract, and, as incidental to such jurisdiction, it will also enforce the rights resulting from the transfer : (Morris v. Cannan, 8 Jur. N. S. 653 ; CheaU V. Kenward, 3 De G. & J. 27; Beckitt v. BillborougJi, 8 Ha. 188.) O&er Informal Transfers. — Regulations in articles for the transfer of shares are intended to protect the Company. Compliance with such forms, therefore, is a duty cast upon the purchaser for the benefit of the Company, whQe his non-compliance with such regu- lations does not enable him, as respects the Company, to retire from his contract. This was decided in Bumes v. Pennell (2 Ho. Lords Cas. 497). See also Mangles v. Preston Collier Company, 2 Rail. C. 335, and Ih. 339 ; Yelland's case, 5 De G. & Sm. 395. Even where the formality is material, yet, if its omission is known to and ac- quiesced in by the shareholders, the court will, as against the Com- pany, infer that the transfer is valid. G. brought an action against a Company in which he was a shareholder, whereupon, in settlement of the action, it was agreed that G. should, for a consideration, transfer his shares to S., who was the managing director. This arrangement was carried into effect, and the transfer registered. Two years after- wards the Company was wound-up, and the official manager placed his name on the list of contributories, on the ground that the transfer was invalid, S. being a trustee for the Company, and the assent of the shareholders not having been obtained. The Lord Chancellor, however, considered that, independently of the question of notice on the part of G. that S. was a trustee for the Company, they were bound by their acquiescence in the transfer for the two years, and that their consent to the transfer must consequently be presumed. G.'s name, accordingly, was ordered to be taken off the list : (Jlc British Provident Life, ^c. Assurance Society, Orady^s case, 32 L. J. N. S. Ch. 326.) The Company not being disqualified from purchasing shares, his Lordship considered that the case was similar to that of Bargate v. Shortridge (5 Ho. Lords Cas. 297 ; 24 L. J. N. S. Ch. 457). In that case, by the deed of settle- ment of a banking Company, it was provided that no transfer of a share in the Company should be permitted except upon notice to the directors, and with the consent, in wi-iting, of three directors, such con- sent being obtained at a board. If such consent was refused, the share- holder might require the directors to buy his shares at the market price of the day. No shareholder could compel an inspection of the books of the Company. S., a shareholder, sent the proper notices to the directors, and received consents signed by three directors, on which he completed his intended transfers. The transferees' names were duly entered in the share register book, and the returns made to the Stamp Office, under the 7 Geo. 4, c. 46, were so made up. The transferees afterwards received tlie regular notices of meetings, &c. The directors subsequently sought to impeach these transfers, on the ground that the IHst7-ibution of Ga^ital. 65 notices had never been submitted to a " board of directors,'' but that the consents had merely been signed by the managing director alone, then signed by him, and afterwards signed by two other directors. It appeared that this mode of transacting affairs had been usual with the directors from the very commencement. The House of Lords held that as between the transferor and the Company the consents given by the directors, although informal and irregular, were valid, and that they could not afterwards treat the transferor as a member of the Company. The directors. Lord St. Leonards observed, " were bound by the course of proceeding they had themselves adopted, and the more so as the shareholder had no power to know whether the forms had been properly complied with, or to compel comphance." His Lordship considered that the contract in this case was good even at law. This decision by the highest tribunal, doubtless overrules the case of Bosanquel v. Shortridge (4 Exch. 699), in which the circumstances were very similar to those in Bargate v. Shortridge. Indeed, the case of Bosanquet v. Shortridge is distinguished by Lord St. Leonards in Straffon's Executors' case (1 De G. M. & G-. 589), on the ground that the board of directors disclaimed the transfer within a reasonable time. However, it is no authority now upon the present point, neither is Ness V. Angas (3 Exch. 805), nor Ness v. Armstrong (4 Exch. 21), which depended upon the construction of a particular act of Parliament (7 Geo. 4, u. 46). See 1 De G. M. & G. ubi supra. In Taylor v. Hughes (2 Jo. & Lat. 24), it was in like manner held that the directors could not put the shareholder under disabilities and hold him bound as between themselves and him, whatever might be his liabilities as between himself and an adverse creditor of the court. The Master of the EoUs has distinctly held in Bagge's case (20 L. J. N S. Ch. 229) that a Company, after having dealt with a shareholder, could not treat the transaction as void for a want of form, though not immaterial, which their own irregularities had rendered it impossible to observe. In the case of Re the Vale of Neath and South Wales Brewery Company, Ex parte Walters (19 L. J. N. S. 501), shares were transferred into the name of W. in the share ledger of the Company, and were accepted and paid for by him, and he received dividends thereupon ; but no formal transfer was made to him in the mode prescribed by the deed of settle- ment : it was held that W. was a shareholder as between himself and the other shareholders in the Company. Another case in point is that of Re the Royal Bank of Australia, Ex parte Cockbuni (20 L. J. N. S. 137). In that case. A., a director in a Company, gave an undertaking to take 100 shares and a promissory note for 1000?. in respect of calls made on the shares. A., being desirous to retire from the directorship and to give up his shares, communicated these wishes to the directors. In June, 1842, he was discharged from the directorship, and in July it was agreed that his shares should be taken. This arrangement was carried out by the directors returning to A. his undertaking and note. No other formalities were gone through. The deed of settlement of thp Company contained ample powers for the directors to make contracts and to purchase shares. The Company was ordered to be wound-up. Knight Bruce, V.C., held that his name should be taken off the list of contributories altogether, as there was a clause in the Company's deed that a shareholder transferring should be, as between himself and the Company, exempt from aU demands up to that time. 66 The Companies Act, 1862. A. purchased shares in a banking Company. Ko transfer of them to him was executed, as required by the Company's deed of settlement, but the directors gave him certificates of the shares, and he received the dividends declared on them from time to time. It was held that A. was a contributory : {Bernar(VK case, 21 L. J. N. S. Ch. 468.) All the preceding cases proceed upon the footing that the transaction was not illegal or fraudulent in any way or ultra vires the Company, but merely defective in point of form. But if it be essentially wrong or ultra vires it wiU be governed by different principles. A shareholder in a brewery Company sold his share to one of the directors. The shareholder's solicitor, through whom the sale was effected, had notice that the purchase was made by the director with a view of vesting the shares in the Company, to whom the director transferred them on the same day on which they were transferred to him. The deed of settlement did not authorise the purchase on behaK of the Company. It was held that the shareholder was properly placed on the Hst, although seven years had elapsed since the transfer, and it had remained unquestioned during the whole interval : (Richmond's Executors' case, 3 De G. & Sm. 96.) In another case, arising under the same deed, a contrary decision was arrived at, -the transaction being authorised by the deed. The husband of a female proprietor sold her shares to the Company for certain debentures. There was a clause in the Company's deed authorising directors to purchase in such cases. It was held that the transaction was valid: (White's case, Re Vale of Xeath Breicery, 3 De G. & Sm. 157.) See BeresforcCs case, 3 De G. & Sm. 175, on appeal ; 2 Mac. & G. 197. In cases of informal transfers, therefore, it is necessary to consider whether the transaction, besides its informality, is also essentially wrong, or ultra vires. If it is, then the transfer, of course, is invalid, because in the particular case the defect is one of substance, or the transfer is on other grounds illegal, or ultra vires: (Ex parte Morgan, 1 Mac. & G. 225 ; Ex parte Lawes, 21 L. J. N. S. Ch. 688.) As directors have under the act (CI. 55, Table A., post) all the powers of a general meeting of the Company, if the articles do not provide to the contrary, acquiescence I)y the directors in any irregularity of a transfer is, of course, the acquiescence of the Company. If, however, it be ultra vires the Company it is nuU and void as against it. The Memorandum of Association of a Company provided that the capital should be 3,000,000/., divided into 30,000 shares of 100/. each, "subject to be increased or modified," and the articles gave the board of directors power to divide the shares into shares of smaller amount. The directors exercised tliis power, and converted each 100?. share into five 20Z. shares. It was held that such conversion was unauthorised and void, for that, under sect. 12 of this act, the memorandum can only be altered in certain particulars, of wliich tliis was not one; and, per Lord Cairns, L.J., an express power in the meniorandiun to reduce the nominal amounts of the shares would be ineffectual. After the attempted conversion, F. transferred to R. fifty of the new 20/. shares. These shares could be identified in the books of the Company as being the shares into which ton of the original 100/. shares had been converted, and it was held that the ti-ansfer was effectual to pass the ten 100/. shares, and that R., and not F., must be" on the list of contributories : (Re Financial Curporatioii, Ex parte Holmes and others. Law Rep. 2 Ch App 714.) ^^ See, also. He New Zealand Banhinc/ Comjwny, ScmvIVs case (Law Rep. Bistribution of Gwpital. 67 3 Ch. App. 131), as to shares at first illegally issued in excess of autho- rised capital, but afterwards rendered valid by special resolution. See now, however, "The Companies Aot,1867,"s. 21, post, as to power of dividing shares into shares of smaller amount. The principle of this decision appears to be that equity regards the substance, as distinguished from the form, of a transaction, and that as the intention was to transfer a certain interest in the. shares, a mistake in the description of the shares (for the attempted reduction of their nominal value was illegal and nuU) did not affect the contract in any material respect. Falsa denionstratio non nocet. A transfer was executed by P. to Company C. of shares in Com- pany B. The intention of both parties was, that P. should transfer, and Company C. accept all the shares which P. held. At the time when P. executed the deed and handed it to his agent it contained no description of the shares. Before it left his agent's hands it was filled up with the number of the shares, being all P.'s shares, and with the description of them as shares in Company B. ; but the denoting numbers of the shares were not inserted. The seal of the C. Company was then affixed to it. The denoting numbers of the shares and the date of the transfer were afterwards iUled in, it was handed iu for registration, and the C. Com- pany were registered as shareholders. It was held that the transaction was not invalidated by the fact of the deed of transfer having been executed in an incomplete form, and that the C. Company were liable as shareholders : (Re BamecCs Banking Company, Ex parte the Contract Corporation, Law Rep. 3 Ch. App. 105.) TTie principle of this decision appears to be that Company C. were bound by contract to take the shares in question, and that the deed, though probably inoperative as a deed, the blanks not having been entirely filled in before execution, was yet satisfactory evidence of the terms of the contract between P. and the authorised officers of the C. Company. It thus appears that a corporation, like an individual, may be bound in equity by a sufficient contract. la conclusion, it may be added that the tendencies of the courts obviously are to diminish, as much as possible, the category of material defects in transfers. Actions on Sales of Shares. Shares are goods and chattels within the meaning of a declaration by the seller for the price. The price of railway or other shares, therefore, can be recovered under a count for goods sold and delivered : (Lawton v. Hickman, 9 Q. B. 563.) The actions of most ordinary occurrence are — by the seller against the purchaser for not accepting stock or shares, or for non-payment for them when delivered; by the purchaser against the seller for not delivering them. Action by Seller against Purchaser. When a seller sues the buyer for not accepting shares, he must allege his tender of, or readiness to transfer, them ; and, in order to prove this averment, if denied, must show his attendance at the time or latest office hour of the day fixed for transfer, and the non-attendance of the defendant ; or an actual tender and refusal to accept by the defendant ; or that the defendant in some way dispensed with such tender or attendance of the plaintiff, the seller: (Bordenave v. Gregory, 5 East, 107 ; see also Hannuc v. Goldner, 11 M. & W. 849.) The facts proved f2 68 The Companies Act, 1862. may warrant a finding of readiness and willingness to transfer, though no transfer was actually tendered (Humhle v. Langston, 7 M. & W. 517) ; and in Shaw v. Rowley (16 M. & W. 810) it was 'held that the fact of a call being due upon shares agreed to be sold, and that they were not transferable so long as the call remained unpaid, did not disprove readiness and willingness on the part of the seller to transfer if he was in fact ready and able to pay the calls in question. But readiness and willingness is disproved by showing that the plaintiif (the seller) had no shares to transfer at the time fixed for completing his contract: (Hihblewhite v. IM'Morine, 6 M. & W. 200.) The seller must, of course, be prepared to prove his title to the shares, if it is put in issue. See as to the proof of title to shares in a cost- book mining Company, Curlhiq v. FLiijht (H Ha. 41) ; S. C. on appeal, cor. Lord Cottenham, C. (2 PhiUips, G13). See, also, Stcinberger v. Carr, 3 M. & G. 191. And as to the evidence of title to shares by entries in the books of a Company, see Hare v. Waring, 3 M. & W. 362. When the assent of directors is necessary for the transfer, the seller must procure and show such assent : ( Wilkinson v. Lloyd, 7 Q. B. 27.) It appears, however, from the later case of Stray v. Riissell (1 E. & E. 888), that, where the sale has been effected on the Stock Exchange, the seller cannot be compelled by an action to refund the price of the shares sold, to the purchaser in the event of the directors of the Company refusing to allow a transfer of the shares, inasmuch as, according to the rules of the Stock Exchange, it is not the duty of the seUer to procure the consent of the directors to the transfers. It woiild seem that, .in the absence of any agreement or usage to the contrary, it is the business of the purchaser to prepare and tender the written transfer, and to caiise it to be afterwards registered, where registration is necessary : (^Stephens v. De Medina. 4 Q. B. 422 ; Wynne V. Price, 3 De G. & Sm. 310 ; Sayle.^ v. Blane, 14 Q. B. 205, 206.) In an action by the seller of shares against the purchaser for not accepting them, the measure of damages to be recovered is the difference between the contract price and the market value on the day of the ptu-chaser's breach of contract, or on the earliest day afterwards on which they would be sold : (Pott v. Flathcr, 5 Rail. C. 85 ; 16 L. J. Q. B. 366 ; Stewart v. Cauty, 8 M. & W. 160.) See. also, Buorman v. Nash (9 B. & C. 145), and Earned x. Hamilton (2 Rail. C. 624). Action by Purchaser against SeUer. Where the purchaser proceeds against the seller for not transferring or delivering the shares bought, he must allege, and, if necessary, prove, that he was ready and willing and able to pay for the shares (Lawrence V. Knowhs, 5 Bing. N. C. o^Sd) ; but an actual tender of payment is not necessary : (StcpJien.i v. Dc Medina, 4 Q. B. 422). He must also allege, and, if necessary, prove (in the absence of usage or express agreement to the contrary) a tender to the seller of a written transfer for execu- tion by him in cases whore such formal instrument is necessary, as in railway shares (Stephen.-^ v. Dc Molina, 4 Q. B. 422), unless where the seller by his conduct has dispensed with such a tender : ( Wynne v Price, S De G. & Sm. 810 ; Sayles v. Blane, 14 Q. B. 205, 206 ; 6 Rail. A contract to deliver shares in a Company does not require the actual delivery of the scrip certificates, but it is sufficiently performed when the seller has put the purchaser in the position of legal owner of the shares : (Hunt v. Gumt, 13 C. B. N. S. 226.) Distribution of Capital. 69 Where the action is against the seller for non-delivery, and the plaintiff had not paid the price, the measure of damages is the difference between the contract price and the market value on or about the day of the breach of contract : (Shaw v. Holland, 15 M. & W. 136 ; Tempest v. Kiln£r, 3 C. B. 253.) Where shares in a Company are not legally saleable for want of registration of the Company under an Act of Par- liament, it seems this may be pleaded as a defence. See Hickman v. Laioton, 9 Q. B. N. S. 563. The actual purchaser of shares is bound to indemnify the seller against all calls made on the shares subsequently to the transfer. It has been held that when the transferee of shares in a railway Company omitted to register the transfer, and the transferor was in consequence obliged to pay calls made subsequently to the transfer, although he could not recover the amount of the calls from the transferee as money paid to his use, unless the transferee was his immediate vendee, yet a special action would lie for not registering the shares : (Sayles v. Blane, 14 Q. B. 205 ; 6 Rail. C. 79.) See, also, Walker v. Barttett (18 C. B. 845) as to shares in a cost-book Company. It has already been shown by the case of Chapman v. Shepherd (Law Rep. 2 C. P. 228), supra, that a contract to buy shares is not invalidated under sect. 153, infra, by the .fact of a winding-up having commenced before the contract was fuliilled ; and by Biederman v. Stone (Law Rep. 2 C. P. 504), supra, a similar decision was given as to sect. 131 in the case of a voluntary winding-up. Specijic Performance and Indemnity. Although a bill in equity will not generally lie for specific perform- ance of an agreement to transfer stock (Cuddee v. Rutter, 1 White & Tudor, 709), a court of equity wiU decree specific performance of an agreement for the purchase and sale of shares : (Duncuft v. Albncht, 12 Sim. 189 ; Shaw v. Fisher, 2 De G. & Sm. 11 ; WiUon v. Keating, 27 Beav. 121 ; 4 De G. & J. 588.) In this case, the purchaser was compelled to pay the price of the shares, where, in fact, he had not previously paid it, although the deed of transfer stated that it was paid. Specific performance has been decreed of a contract for the sale of shares in a Company, although there was a provision in the deed of settlement " that no shareholder should be at liberty to transfer his shares, except in such manner as a board of directors should approve" ■ (Poole V. Middkton, 29 Beav. 646.) In his judgment in this case, the Master of the RoUs remarked that he did not say whether the plaintiff would become a shareholder, tmless the board of directors approved of the manner in which the transfer was made. His Honour also con- sidered that the board coxild not exercise an arbitrary and unreasonable will on such an occasion, or reject a mode of transfer in one instance of which they approved in other cases. In the last case the contract was vahd without the consent of the directors ; but it has been held that every contract for the sale of shares in a Company, the directors of which have the right of approving or rejecting a proposed transferee, must be regarded as conditional on their approval being given, and, in default of that approval, the contract must be treated as rescinded. A shareholder agreed to sell shares in a Com- pany by the deed of settlement of which the right of transfer was subject to the approval of the board of directors ; the purchaser paid the money, but, before any transfer of the shares was made, the court 70 The Companies Ad, 1862. ordered the Company to be wmmd-up. Subsequently the vendor and purchaser executed a deed transferring the shares to the purchaser. The official liquidator, acting on behalf of the directors, declined to approve of the purchaser or recognise the transfer ; the vendor was put on the list of contributories, and a call was made ; and the purchaser brought an action to recover the purchase-money. Upon a bill by the vendor, against the purchaser, to compel specific performance, it was held that the court could not interfere with the discretion of the official liquidator, and that, as the Company did not choose to accept the purchaser as a shareholder, specific performance of the contract could not be decreed : (Bemiinrjham v. Sheridan, 33 Beav. 660 ; 33 L. J. Ch. 571 ; 10 Jur. N. S. 415 ; 10 L. T. N. S. 256.) See remarks on this case in Evans v. Wood (Law Rep. 5 Eq. 14), infra, and in Paine v. Hutchinson (Law Kep. 3 Ch. App. 392), infra. A contract to sell shares, in short, will be construed as conditional upon the fair fulfibnent of such conditions, and on such approval being given by directors to the transfer as may be required by the Company's Articles of Association. It appears that specific performance will not be granted of an agree- ment for the sale of shares entered into after a petition to wind-up the Company had been presented, although before it had been advertised, and while the parties were stiQ ignorant of the fact : (lie London, Ham- hurg, ami Continental Exchange Bank, Emmerson's case. Law Rep. 1 Ch. App. 433.) A jobber on the Stock Exchange, who in the course of business has contracted to sell shares, may enforce specific performance of the contract against the purchaser. The plaintiffs, dealers in shares, contracted to sell to the agents of the defendant shares which they had purchased from, and which remained registered in the name, of C. On the settling day the agents of the defendant gave his name, as principal, for insertion in tiie deeds of transfer. Transfers executed by C. to the defendant were deUvered to defendant's agents, who paid for the shares out of money given to them by the defendant. The defendant refused to execute the deeds and to procure their registration, on the groimds that he told his agents that he intended to resell without taking transfer, and that they had given his name without authority. Five months after the sale, the Company was ordered to be wound-up, and on bill for specific performance and indemnity (filed before the winding-up), to which C. was not a party, it was held that the plaintiffs wore entitled to a decree for specific perform- ance, and that the defendant should execute transfers and prociu-e his name to be registeroil : (I'aiiie v. Hutchinson. Law Rep. 3 Eq. 257.) On appeal, the decree of Stuart, A'.C, in this case w;\s aflirmed with a slight alteration, and with flic insertion of provisions as to indemnity similar to those in Kraiis v. Wood, infrti (S. C. Law Ecp. 8 Ch. App. 3SS). C. (the registcvrd ownir of the shares) subsequently proceeded against the jobber tlio plaintiff in the last case. It then appeared that C. on the 2ud of Novenilu'T, ISli.'i, through liis brokers, sold 100 shares to the defendant (the jobber). The sale-note expressed that the sale was by order of C. the pliuntiff ; that it was subject to the rules of the London Stock Lxrliani;v, i\nd "with rei^istration guaranteed;" also that pay- ment WHS to be on the Ifitli of November foDowing. Shortly before this date the defenditnt sent to the plaintiff's (C.'s) brokers, the name of H. as traiisfcvi^e, with the pm-ehuse-money ; and the transfers were executed by the plaintiff to II., and handed to his brokers. The transfers not Distrihution of Oapital. 71 having been registered, the defendant, in December, 1866 (see the last case), obtained a decree for specific performance by H. of the contract with him, and for indemnity. Meanwhile the Company had been wound-up, and the plaintiff's name, being still on the register, was settled on the list of contributories. He then filed a bill against the defendants for specific performance and indemnity. A decree for specific performance was granted. Before the suit came to a hearing, the plaintiff (C.) died, and his executor, having been placed on the list of contributories, revived the suit. The estate was insuflicient ; and the question was raised as to whether the defendant should be called upon to pay more than the dividend which C.'s estate could pay in respect of the claims for calls in the winding-up. It was held that the right to indenmify was not limited to the amount of dividend which C.'s estate would be able to pay, but that the executor was entitled to aU the rights which his testator, if living, could have enforced ; and it was ordered that the decree in Eoans v. Wood (Law Rep. 5 Eq. 9), infra, should be followed : (Cnise v. Paine, Law Rep. 6 Eq. 641.) The last case must rest on the ground that registration was guaran- teed in the sale note that passed from the jobber to the registered owner of the shares. This, at least, would appear to follow from the next case. Where the vendor of shares sold them through a jobber, imder cir- cumstances precisely similar to those 'm. Qrissell v. Bristowe, supra, and, having received the price, executed and handed over through his broker the transfer deeds to the nominees of the jobber, who received but never executed or registered the transfers. On the winding-up of the Com- pany, the vendor,- Ibeing compelled to pay calls upon the shares, filed a bill in equity against the jobber, claiming indemnity against the calls. It was held by the Court of Chancery Appeal that the contract between the vendor and the jobber must be interpreted according to the rules of the Stock Exchange, and that after the jobber had paid to the vendor his purchase-money, and given him the names of transferees to whom the vendor executed transfers, and after these transferees, through their brokers, had received the transfers and paid their purchase-money to the jobber, the liabihty of the jobber ceased, and that the bill should be dismissed : (Coles v. Bristowe, Law Rep. 4 Ch. App. 3.) But the vendor of shares may sustain a suit in equity for indemnity against calls against the ultimate purchaser to whom the shares have come after passing through the hands of intervening jobbers. The plaintiff, a holder of shares, agreed, through his broker, to sell them to a jobber for 202Z. 10s. By the usage of the Stock Exchange, the transfer of the shares would not be made until a future day, and in the interval the shares might be again sold untU a certain day, when the original buyer must name the person to whom the transfer was finally to be made. Accordingly, the shares were ultimately sold to the defendant for 145Z. (a call having been made in the meantime), and the plaintiff executed and gave to the defendant a deed transferring the shares to him, the consideration named in which was 145/., the difference being paid to the plaintiff by the jobber. The defendant never regis- tered.the transfer, and an order was made for winding-up the Company. The plaintiff was compelled to pay calls upon the shares, and filed a biU for specific performance and repayment, alleging that there had been a purchase by the defendant for 2021. 10s. The decision of Wood, V.C., appealed from, came before Lord Chelmsford, L.C., and it was held (overruling the decision of Wood, V.C.) that the fact of the call having 72 The Companies Ad, 1862. been made in the interval did not invalidate the contract supposing a valid contract to have been made. The Lord Chancellor seemed to be of opinion that there was a con- tract between the plaintiff and defendant, but held that the contract alleged by the plaintiffs' bill was not proved. In deUvenng judgment Lord OheUnsford observed, "It is clear that a plaintiff must proceed secundum allegata et probata. Now by this biQ the plamtaffs seek specific performance of an agreement with the defendant for the sale of these shares in consideration of a sum of 2021. 10*., and that particular contract the plaintiffs pray that the defendant may be decreed specifi- cally to perform. But is there proof of any such contract ? The only proof given is this transfer, which is expressed to be in consideration of 145Z. paid to the plaintiff Hawkins by the defendant ; and if I were to make a decree for specific performance of the contract alleged by the biQ, I should compel the performance of a contract into which the parties never entered." The appeal was accordingly dismissed: {Hawkins v. Maltby, Law Rep. 3 Ch. App. 188.) Subsequently to this another bUl was filed, alleging, among other things, that the plaintiff agreed to accept and did accept the defendant as the purchaser and transferee from the plaintiff Hawkins of the shares for the consideration money of 145^., and that the defendant agreed to accept and did accept the plaintiff Hawkins as the vendor and transferor to him of the same shares for the consideration money of 145Z. ; that the Messrs. C. (the plaintiffs' brokers), as the agents, and with the authority of the plaintiffs, fiUed up the blank in the transfer with the proper amount of the consideration money, viz., libl., and that they dehvered the transfer to Messrs. W. (the defendant's brokers) as the complete deed of the plaintiff Hawkins. The relief sought was the same in substance as that in the former biU. It was held by the Master of the RoUs that there was a contract between the plaintiff and the defendant entitling the former to be indemnified by the latter in respect of the calls, but that as the plaintiff knew that the defendant resisted his demand, he ought to have paid the calls at once, and could only recover interest on the calls at the rate of 4 per cent, from the day on which they became due, although the plaintiffs were compelled to pay interest on the calls at the rate of 11 per cent. : (S. C, Ijaw Rep. 6 Eq. 506.) A. sold to N., a stock-jobber, and B. purchased from N. five shares. According to the practice of the Stock Exchange, N. gave to A. the name of B. as the purchaser ; and a transfer of tie shares from A. to B. was executed by A. and B., and the purchase-money was paid by B. to A. ; but B. was prevented by accidental absence from home from sending the transfer for registration until after the Company had stopped payment. Tlie Company was woimd-up, and the liquidators registered all trausfore loft at the office before the Company stopped payment, but refused to register the transfer from A. to B., and A. was made a contributory, aiul paid a call on the shares. It was held by the Master of the Rolls that A. was entitled to a decree against B. for repayment of the call and indemnity against future liability in respect of the shares. He also hold that, whore the directors had a discretionary power of refusing to register transfoi-s, if thoy disapproved of the transferee, and a transfer exooutod \whn\\ was not left for registration until after the coiiimoiioomoia of the winding-up of the Company, in the absence of cvidoiico that the traiisi'oroo was objectionable, it would be presumed Distribution of Capital. 7'd that the directors would have registered the transfer : ( Evans v. Wood, Law Rep. 5 Eq. 9.) The Master of the Rolls observed in his judgment in this case, " this is a case in which specific performance may be had, and it is not necessary to refer it to a court of law merely to give damages." His Lordship distinguished the case from Bermingham v. Sheridan (33 Beav. 660), where his Lordship had held that the contract, under the circum- stances of that case, coiild not be carried into execution, because part of the contract was that the name of the purchaser should be put upon the register, and that part could not be performed. See also Sheppard v. Murphy (16 W. R. 948), a decision of the Irish Court of Chancery Appeal. As to the court, after a voluntary winding-up had commenced, ordering by its decree that a defendant who had agreed to accept shares shoiild procure so far as possible the shares to be transferred and registered in his name, notwithstanding sect. 131, infra, see RoUns V. Edwards, W. N. 1867, p. 197 ; 15 W. R. 1065, irfra. On the instructions of W., shares in a Company, subsequently wound- up, were purchased for him by a broker, who, on the settling-day, also, on the instructions of W., gave the name of G. as the purchaser, and the deeds of transfer were made out in G.'s name, and delivered to him for execution, and he, for some time, retained possession of and dealt with them. W. informed G. that he had passed his name as transferee, and had also passed a cheque on the Company's bankers for the purchase-money to the debit of his firm. G. took no step to inform the vendor that he did not assent to the contract, though he did express his dissent to W. It was held, by Stuart, V. C, that the vendor was entitled to a decree for specific performance against G. Some remarks were also made on Shepherd's case (Law Rep. 2 Ch. App. 16), and quasre as to whether the 35th section of this act does not apply to a case of delay on the part of a transferee in proctuing registration : (^Shepherd v. Gillespie, Law Rep. 5 Eq. 293 ; for a form of the decree, see Ih. 298 ; S. C. confirmed on appeal, Law Rep. 3 Ch. App. 764.) A. bought fifteen shares, B. sold fifteen shares in the same Company. Through the intervention of various members of the Stock Exchange, B. executed a transfer to A., but owing to the Company being womid- up the transfer could not be registered. It was held, in a suit in equity, that A. was bound to indemnify B. against calls made on these shares : (HodgUnson v. Kelly, Law Rep. 6 Eq. 496 ; 37 L. J. Ch. 837.) With regard to questions such as those just treated of, see now "The Companies Act, 1867," s. 26, which provides that transfers may be registered at the request of the transferor. Suits for specific performance are, of course, in the main, adjudicated upon by the court according to its usual equitable rules. Still, it is to be remembered that a plaintiff, seeking the active intervention of the court in a suit for specific performance, may sometimes fail to obtain ' redress, although the court might protect and enforce his equity in other respects. The plaintiff, in short, in a suit for specific performance should not only come into court with clean hands, but should also be armed with a very high equity. Registration of Transfers. As to the register of members to be kept by a Company, see sect. 25, infra. Provision is made for the rectification of the register by sect. 35, 74 The Comjianies Ad, 1862. infra ; and an application may be made under that section to determine the question whether the vendor or purchaser of shares ought to be deemed their registered owner (see the judgment of Turner, L.J., in Re Ritssian (Vyksounsky) Iromcorks Company, Stewarts case. Law Rep. 1 Ch. App. 585) ; but no person is entitled to have his name placed on the register until he has complied with all the conditions required by the regulations of the Company: {East Wheal Martha Mining Company, 33 Beav. 119.) See, also. Re Imperial Mercantile Credit Association, Marino's case (Law Rep. 2 Ch. App. 596), post. Where a Company has a Uen on shares that Uen must be discharged before the Company can be required to register a transfer of the shares : (lie London, Birmingham, and South Staffordshire Bank, 5 N. E. 351.) In like mamier, where the regulations of a Company provide that the Company may refuse to register a transfer of shares in case the trans- feror is indebted to the Company in respect of calls, the calls must be paid before the Company can be required to register a transfer, but the Company has not the right to refuse to do so unless the call has been made before the transfer is presented for registration : (Reg. v. Inns of Court Hotel Company, 2 N. R. 397 ; 11 ^V. R. 806.) In Huhbersty v. The Manchester, Sheffield, and Lincolnshire Railway Company (Law Rep. 2 Q. B. 59, 471), it was held, as to a Company governed by 8 Vict. c. 16, that sect. 16 of that act, which enacts that " no shareholder shall be entitled to transfer any share after any call has been made in respect thereof imtil he shall have paid such call, nor until he shall have paid all calls for the time being due on every share held by him," only applied to the transfer of shares on which a call could be and had been made, and had no application to the transfer of shares on which all the calls had been paid. The Company, therefore, was held bound to register a transfer of stock, although the transferor was the holder of shares on which there were calls unpaid. MeUor, J., considered that the section in question did not restrict the transfer of shares, the amount of which is paid up, and therefore that it did not restrict the transfer of consolidated stock. " The Com- pany," his Lordship observed, " have no power given them by any section to hold paid-up shares as a security for the amount of a call ; they may bring their action against the shareholder for non-payment of the call, or they may forfeit his shares." Lush, J., went fiu'ther, and did not deem it necessary to consider whether stock is or is not subject to the same restrictions as paid-up shares. His Lordship considered that sect. 16 is " pointed entirely to shares clogged with a pending liability to calls," and that the second part of the section applied only to cases within the first," "nor until he shall have paid all calls for the time being due on every share held by him." "lam, therefore, of opinion," his Lordship proceeded, " where a person holds shares of two classes, in one of which no call has been made, but a call has been made in respect of the other, ho may transfer any or all of the shares in the first class without paying the calls due upon the second; and it is immaterial whether the calls in the first class have been fully paid up or .not, becaiise that ease is not the subject of the enactment. But if a call is made, the sliariliolder cannot part with any share of that class without paying that call and all calls which are in arrear in respect of shares of that class. I think we ought to be very careful not to strain the wove Ik of tins enactment lost we restrict the negotiability of shares in Companies." Kvory word of this judgment is valuable, and similar Distribution of Oa^pital. 75 clauses in Articles of Association will doubtless be construed in this manner. As to impeaching a transfer of shares on the ground that calls are due on them after there has been a waiver of the right to prevent the trajisfer, see Orpen's case, 9 Jur. N. S. 615. It has been held, in the case of Reg. v. The General Cemetery Company (6 E. & B. 415), that a Company is not bound to register complicated instruments of transfer. If a Company wrongfully refuse to register a person who has a right to be registered, he may, of course, maintain an action against the Company : {Daly v. Thompson, 10 M. & W. 309.) The property in shares wiU not pass under forged transfers even to hond-fide purchasers for value whose names are placed on the Company's register. The plaintiff, the registered owner of 1 000 shares in a Com- pany, in which the shares could only be transferred by deed executed by both transferor and transferee, employed a broker to sell for him some shares in another Company, which were also transferable by deed only. The broker represented to the plaintiff that it was necessary for him to execute ten blank forms of transfer. The plaintiff accordingly signed, sealed, and delivered to the broker ten forms of transfer in blank to be filled up by him for the transfer, of the shares in the other Company. The broker only used eight of the blank forms for that purpose, and having stolen the certificates from a box deposited at a bank for safe custody, he feloniously filled up the two remaining forms as transfers respectively of 500 of the plaintiff's 1000 shares in the first-mentioned (Company, and having forged the attestations, he deHvered the transfers, together with the certificates, to 'bona-fid.e purchasers for value, and on their being presented to the Company they removed the plaintiff's name from the register of shareholders and placed thereon the names of the purchasers. It was held, in the Exchequer Chamber, that the trans- fers were void, and that there was no such negUgence on the part of the plaintiff as estopped him from insisting that the property in the shares did not pass imder the transfers : (per Cockburn, C.J., Crompton, J., WiUes, J., Byles, J., Blackburn, J., and MeUor, J. ; Keating, J., dis- senting.) Negligence, to operate as an estoppel, must be the proximate cause of the loss : {Swan v. The North British Australasian Company, 2 H. & C. 175, in error ; 82 L. J. Ex. 273 ; 10 Jur. N. S. 102.) A iond-fide purchaser for value, under the circmustances stated, has, however, his remedy against the Company ; and it was held hi the Matter of the Bahia and San Francisco Railway Company, Limited, and Amelia Trittin and others (Law Rep. 3 Q. B. 584), post, that where a Company registered forged transfers of shares and issued certificates of registration to the persons who presented them, a hond-fide purchaser for value of the shares from those persons was entitled to recover from the Company, as damages for the loss of the shares, the value of the shares at the tim^e when the Company first refused to recognise him as a shareholder, with interest at four per cent, from that time. See also, on the subject of the registration of wrongful transfers, Orr V. The Union Bank of Scotland, 1 JMacq. 513 ; The Bank of Ireland v. Evanses Charity Trustees, 5 Ho. Lords Cas. 389 ; Davis v. The Bank of England, 2 Bing. 393 ; and Ashby v. Blackwell, 2 Eden, 299. Where the directors of a Company have the power by its articles to withhold their assent to a transfer, they cannot exercise that power without good reason. See Poole v. Middleton, 29 Beav. 646, and Pinkeit V. Wright, 2 Ha. 120. 76 The Companies- Act, 1862. Where by the deed of settlement of a banking Company it was declared that no person should be entitled to become a transferee of a share unless he was approved by the court of directors, it was held that the court must exercise its power reasonably, and would be controlled by a, court of equity ; but, quxre, whether it would be a reasonable ground of objection that the proposed transferee is the nominee of a rival bank, with which the shares have been deposited as security : (Robinson v. Chartered Bank of India, Law Kep. 1 Eq. 82; 35 Beav. 79.) See, also, Taft v. Harrison, 10 Ha. 489, and BermingTiam v. Sheridan, 33 Beav. 660, supra. Where the directors have, by the articles of a Company, a right of veto as to transfers, they have the power, if the Company is in embar- rassed circumstances, to come to a resolution not to register any more transfers at all : (Re Joint-Stock Discount Company, Shepherd's case. Law Eep. 2 Eq. 564.) Directors were not allowed to invalidate a transfer on the ground that their consent had been given informally according to the regulations of the Company : (Bargate v. Shortridge, 5 Ho. Lords Cas. 297.) A transfer, made from a desire on the part of the transferor to escape from liability, is not bad where the directors have no veto, even though money should have been paid to the transferee for taking the shares, and the transfer falsely states money to have been paid to the transferor. And it appears there is a distinction between a transfer of shares which is fraudulent and void as against the transferee, and one which is so as regards the Company : (Re Hafod Lead Mining Company, Slater's case, 35 Beav. 391 ; 35 L. J. Ch. 304 ; 12 Jur. X. S. 242 ; 14 L. T. N. S. 95.) With respect to a transfer to a man of straw, see also Re Mexican and South American Company, Ex parte Hyam, 29 L. J. X. S. Ch. 243 ; Exparte Budd, Re Electric Telegraph Company, Ireland, 31 L. J. N. S. Ch. 4 ; Ex parte Costello, 30 L. J. N. S. Ch. 113 ; Ex parte Hatton, 31 L. J. N. S. Ch. 340 ; Lihrt's case, 30 L. T. 185 ; Jissopp's case, 2 De G. & J. 638 ; De Pass's case, 4 lb. 544 ; and Chinnock's case, Joh. 714. The articles of a Company provided that on proof of title and execu- tion of transfer the Company should register the transferee, but that no transfer of shares should be made or registered after a call on such shares had been made until payment thereof. At a meeting of the board of directors the propriety of making a call was discussed. A shareholder present induced the directors to postpone consideration of the matter, and then, without informing them of his intention, trans- ferred his shares to a pauper in order to escape all further liability. The directors having declined to register the tr.onsfer, it was held that the court would not, under sect. 35 of this act, rectify the register by removing the n.ome of the transferor, and substituting that of the transferee. Kolt, L.J., however, at the same time saying, " I am still inclined to tluuk that tlie transfer of shares expressly to escape the liabUity of a shareholder, so f;ir as it is right to express any opinion on it in tins case, does not necessarily vitiate the transfer, and I should not dispose of this case adversely to the appellant upon any such ground " : (Re National and Proviiicinl Marine Insurance Company, Ex parte Parker, Law Rep. 2 Ch. App. G85.) The directors of a Company have no discretionary power, inde- pendently of powers expressly given to them by the Articles of Associa- tion, to refuse to register a transfer which has been bona fide made. Therefore, where a transferee gave an address at which he was only an occasional visitor, it was held (reversing the decision of the Master of Distribution of Owpital. 77 the Rolls) that the directors were bound to register the transfer, although the Company was at the time in difficulties, and the shares were sold by the transferor in order to get rid of his responsibility : {Re Smith, Knight, and Co., Wenton's case. Law Rep. i Ch. App. 20.) Where the articles of a Company provided that no transfer of any share should be entered in the books of the Company until it had been executed by the transferor and transferee, and entered on the register, and that the directors might refuse to register the transfer of any share unless the transferee was approved by the board, it was held that, irrespectively of any question as to whether a certain transfer of shares occurred before or after the commencement of the winding-up of a Company, a transfer which had not thus been registered and approved by the board was invalid, even though the board might have been functus officio at the time of the transfer: {Re Overend, Gurney, and Co., Ex parte Walker, 16 L. T. N. S. 32, Ch.) Where it was shown to be the uniform practice of a Company to have shares transferred by deed executed both by transferor and transferee, .although the Articles of Association did not prescribe any particular form of transfer, and expressly excluded Table A. in the second schedule to this Act, it was held that the directors were justified in not register- ing a transfer where the transfer deed had not been executed by the transferee. See Re Imperial Mercantile Credit Association, Marino's case, Law Rep. 2 Ch. App. 596, post. The decision in Marino's case was followed by MaUns, V.C., who held that when the Articles of Association require transfers of shares to be executed by both parties, the court has no power imder sect. 35, infra, to rectify the register by removing the name of a transferor, unless the transfer has been executed by the transferee : {Re Overend, Gurney, and Co., Musgrave and Hart's case. Law Rep. 5 Eq. 198.) For decisions on applications made under sect. 35, infra, to rectify the register by the entry on it of transfers, see the note under sect. 35, infra, especially the cases of Re London, Hamburg, and Continental Exchange Bank, Ward and Henry's case (Law Rep. 2 Ch. App. 431 ; 36 L. J. Ch. 462 ; 16 L. T. N. S. 254), Watkin's case (14 L. T. N. S. 696, Ch.), Re National and Provincial Marine Insurance Company, Ex parte Parker (Law Rep. 2 Ch. App. 685), Re East Wheal Martha Mining Company (33 Beav. 119), Re Contract Corporation, Head's case and White's case (Law Rep. 3 Eq. 84), Re Joint-Stock Discount Company, Reads case (36 L. J. Ch. 472), Shepherds case (Law Rep. 2 Ch. App. 16), Nation's case (Law Rep. 3 Eq. 77), Shipman's case (Law Rep. 6 Eq. 219), and Re Overend, Gnrnetj, and Co., Ward and Garfit's case (Law Rep. 4 Eq. 189 ; 86 L. J. 416, Ch.) For decisions with regard to transfers of shares in a Company after the commencement of a winding-up, see sect. 98, infra. Where a transfer of shares is registered before the second and con- firmatory resolution to wind-up voluntarily has been passed by the Company, the transfer is complete in the absence of mala fides : {Re Ottoman Company, Hornby's case, 37 L. J. Ch. 929 ; W. N. 1868, p. 207 ; 16 W. R. 1164.) 23. Definition -of "member." — The subscribers of tbe Memorandum of Association (a) of any Company under this act shall be deemed to have agreed to become members of the Company whose memorandum they have subscribed 78 The OoTTvpanien Act, 1862. and upon the registration of the Company shall be entered as members on the register of members hereinafter men- tioned ; and every other person who has agreed to become a member (&) of a Company under this act, and whose name is entered on the register of members, shall be deemed to be a member of the Company. (a) The subscribers of the Memorandum of Association, ^c] — See The United Kingdom Ship Owning Company, Felgate's case (2 De G. J & S. 456) as to an alteration made in a Memorandum of Association after signature and before registration ; and, also, Re Bamed's Banking Company, Peel's case (Law Rep. 2 Ch. App. 674.), infra. E. signed a Memorandum of Association as the holder of ten shares, and acted for a short time aa a director of the Company. Other directors were then appointed, and he never afterwards had anything to do with the Company. No shares were ever allotted to him, and his name was never on the register. All the shares in the Company were allotted to other persons, but the allotment of some was not final, and they were not taken up. It was held (affirming the order of the Master of the RoUs) that E.'s name ought to have been on the register, and that he was a contributory in respect of ten shares : {Re London, Hamhurrj, and Continental Exchange Bank, Evans's case, Law Rep. 2 Ch. App. 427 '; 36 L. J. Ch. 501 ; 16 L. T. N. S. 252.) The subscribers of the Memorandum of Association of a Company under this act are by this section bound to take as many shares as they have subscribed for, whether or not the shares are actually allotted to them, and this obligation is not satisfied by the allotment at a subse- quent period of nominally f uUy paid-up shares. Therefore, where M. sub- scribed the memorandum of a Company for five shares, and eight months afterwards five fully paid-up shares, which the Company had agreed to allot to C. as part of the purchase-money for property sold to them by C, were by C.'s direction allotted to M., and the Company was wound-up. The Master of the KoUs held that M. was a contributory in respect of five shares upon which nothing had been paid : {Re South Blackpool Hotel Company, MigottVs case, Law Rep. 4 Eq. 238 ; 36 L. J. Ch. 581 ; 16 L. T. N. S. 271.). In Evans's case, supra, the Lords Justices seem to have thought that if all the shares had been finally allotted, a question might have arisen respecting Evans's liability. At all events, there is nothing to prevent a subscriber from immediately transferring his shares, and so be subject only to the liabilities of a past shareholder. But the shares he subscribes for he must accept, or else will be conclusively deemed to have accepted them, and so be liable as a contributory in tiie event of the Company being wound-up. In Miijolti's case, the Master of the Rolls seems to have rested his judgment somewhat upon the lapse of time (eight months) that intervened between the registration of the Company and the allotment to Migotti of tiiie paid-up shivrcs in discharge of his liability under the memorandum. Compare with Mignlti^s case, Re Imperiul Lv-ith a direotor that he should receive orders for goods to tlic o.Kteut of at least 1000/. ; that he should only pay 30s. per share m cash Md that tlie ealls for the rest should be set off against the giiods. He p!ud, on application, a deposit of 10s. per share. The agrecMnent was, with im additional term, ratified by the board of directors m November, 1863. In December, 1863, P. wrote to the Company Distribution of Cajjital. 87 declining to proceed further in the matter. In July, 1864, the secretary wrote to P., requiring him to pay 31. 10s. per share for calls. No letter of allotment had ever been sent to P., but he had been put on the register. In November, 1866, an order was made for winding-up the Company. It was held (affirming the decision of Wood, V. C), that P. was not a contributory, for that he had only agreed to take shares upon the conditions of the special agreement as to set-off, which, if ultra vires of the directors, was not binding on the Company, and, therefore, for want of mutuality, not binding on P. ; and, if intra vires, was still not enforceable against P., because the stipulations on behalf of the Com- pany had become incapable of being performed. Lord Cairns, remarking on Bloxani's case (33 Beav. 529 ; 33 L. J. Ch. 574), supra, said: '^Bloxani's case appears to have turned on special circumstances, creating a previous obligation to give him the shares if he applied for them. I cannot, therefore, consider an application for shares, followed by a registration not communicated to Mr. PeUatt, to constitute a completed transaction:" (Re Richmond Hill Hotel Company, PellatCs case. Law Rep. 2 Ch. App. 527.) See, also. Re Royal Hotel Company of Great Yarmouth,, Hann, Clayton, and Company's case (W. N. 1868, p. 85), in which the decision in Pellatfs case was followed. Such agreements as those contained in the preceding cases are now affected in a most important manner by sect. 25 of " The Companies Act, 1867," infra. Henceforward every share shall be deemed to have been issued, subject to the payment of the whole amount thereof in cash, unless the conditions contained in that section are complied with. S., a builder, wrote to the directors of an hotel company to the effect that if the contract for making alterations in the hotel were secured to him, he agreed to subscribe for 300 shares, and pay the deposit as soon as he was satisfied that 1500 shares, including his, had been subscribed, for. The calls on the shares were to be set off against the amount due on the contract. The directors passed a resolution accepting the terms of his letter. They then sent an unconditional notice of allotment of 300 shares to S., and entered his name for that amount on the register. S. did not return the notice of allotment ; but having ascertained that the resolution had been passed, and 1500 shares taken up, sent in a formal application, and paid the deposit. No further allotment was made to S. ; the certifi- cates were not delivered to him, nor was he called upon to pay any calls. Shortly after the allotment the architect was instructed by the directors to make drawings of the proposed alterations in the hotel for the purpose of preparing a contract, and S. prepared estimates, but no contract was ever drawn up. He attended two meetings of shareholders, at which it was expected the subject of the contract was to be considered. He did various works for the Company, for which he received sums amounting to 619Z. But he was not called upon to pay the remainder of the allot- ment money or any of the subsequent calls that were made. Shortly afterwards the Company was wound-up voluntarily. The Lords Justices held (affirming the decision of the Master of the Rolls), first, that the contract to take the shares was conditional on S. having the contract to make the alterations in the hotel ; secondly, that the condition was not performed by the mere passing of the resolution that S. should have the contract ; thirdly, that S. had not waived the condition by not return- ing the notice of allotment, or by attending the meetings of shareholders. S. was, therefore, held not to be a contributory : (Be Aldborough Hotel Company, Simpson's case. Law Rep. 4 Ch. App. 184.) 88 The Oompcmies Ad, 1862. Lord Justice Selwyn, when delivering judgment in this case, observed, "two questions are involved in this case; first, whether the contract to take the shares was conditional ; secondly, if so, whether the con- dition was complied with." His Lordship then, after referring to the distinction taken by Lord Caims, in Elkington's case (Law Rep. 2 Ch. App. 522), mpra, between a contract " to become a shareholder inprsssenti with a; collateral agreement as to what should be the effect of becoming " a shareholder, and a conditional contract for shares, decided both the points he first referred to in favour of S. Cases ojf this sort must be carefully considered according to their circumstances respectively. K., being desirous of being appointed local manager for a banking Company, was informed by the agent of the Company that it would be a condition of his appointment that he should take 100 shares. He accordingly filled up an application for 100 shares in the usual form, which the agent forwarded to the directors with a letter from himself stating that the application was made on condition of R.'s being appointed local manager. The shares were allotted to him, but in consequence of his not being able to pay the deposit, the directors refused to give him the appointment. It was held that B.'s application for shares was conditional, and that he did not become a shareholder in the Company. H., being desirous of a similar appointment, made an application in the usual form for fifty shares through the Company's agent, but no letter was sent to the directors stating that the application was con- ditional on H. obtaining the appointment. The shares were allotted unconditionally to H., who afterwards declined the appointment, but did not formally repudiate the shares. It was held that the apphcation for shares was xmconditional, and that he became a shareholder in the Company : (Be Universal Banking Company, Rogers's case, Harrison's case, Law Eep. 3 Ch. App. 633.) Two persons agreed to sell certain property to a Company for a price to be paid, part in fully paid-up shares, part in shares partly paid-up, and the remainder in cash, as and when the Company should receive any money in respect of shares subscribed for over and above the first lOOOi. ; and it was provided that if the shares and cash should not be paid within two years from the date of the agreement, the agreeement should be void, and that any moneys and shares paid there- under should be retained as Uquidated damages for breach of the agreement. The shares were issued to the vendors and their nominees, but the event on which the cash was to be paid never happened, and the Company was wound-up within two years from the date Of the agree- ment. It was held that the vendors must be placed on the l£t of eontributories in respect of their shares ; but that they were entitled to a hen on the property sold for the amount of cash wMch had not been paid : (Re Patent Carriage Company, Gore and Ditrant's case. Law Rep. 2 Eq. 349.) ' ' r Rtscumon of Contract. If a person has been induced to enter into a contract to take shares byjfraud or material misrepresentation, it cannot be enforced against him either at law or in equity, and he may rescind it, and repudiate the shares, if he do so within a reasonable time after notice of the fraud. A contract to tiike shares in a Company may also be rescinded if entered mto on the faith of a prospectus that represented the objects Dishibution of Oa^ital. 89 of a Company differently from the description contained in the Membrandmn of Association. Rescission on the Ground of Fraud. In order to entitle a party to rescind a contract, it is sufficient to show that there was a fraudident representation as to any part of that which induced him to enter into the contract. But when there has been only an innocent misrepresentation, it is not ground for a rescission, unless it was such as that there is a complete difference in substance between the thing bargained for and that obtained, so as to constitute a faUure of consideration. A Company, already carrying the intercolonial mails under contracts with the Government of New Zealand, issued a prospectus that they were " prepared to receive applications for new shares in order to enable the Company to perform the contract recently entered into with the Government of New Zealand, for a monthly mail service between Sydney, New Zealand, and Panama, in, correspondence with the West Indian Mail Company's steamers between Southampton and Panama." K., induced by this statement in the prospectus, apphed for and obtained some of the new shares. The contract alluded to in the pro- spectus had been made by the Company with the agent of the New Zealand Government, both parties bona Jide believing that he had authority to make it ; but it turned out that he had no such authority, . and the Government refused to ratify the contract : it was held that the prospectus by implication alleged that there was a blading contract, but being an innocent misrepresentation it did not entitle K. to rescind the contract under which he became a shareholder, as it did not affect the substance of the matter, K. having got shares in the very Company for which he had applied, and which shares were of considerable value : (Kennedy v. The Panama, §-c. Royal Mail, Law Rep. 2 Q. B. 580 ; 36 L. J. 260, Q. B.) Where, to an action at law by a Company against a shareholder for calls, the defendant pleaded that he was induced to become a share- holder by the fraud of the plaintiBEs, that he had never recognised, since notice of the fraud, any rights or liabilities in him as such share- holder, nor received any benefit from his shares, and that within a reasonable time after notice of the fraud he had repudiated the shares and given notice to the plaintiBfs of his repudiation, it was held, on demurrer, a good plea, and that although it did not aver that the defendant was an original allottee of shares : (Bwlch-y-Plwm Lead- Mining Company v. Baynes, Law Rep. 2 Ex. 324.) The case of The Glamorganshire Iron and Coal Company v. Irvine (4 F. & F. 947) was to the same effect as the last case, and was referred to in it. Where a person has been drawn into a contract to purchase shares by the fraudulent misrepresentations of directors (or their fraudulent con- cealment), and where the directors, in the name of the Company seek to enforce that contract, or where the person who has been deceived institutes a suit to rescind it, the misrepresentations are imputable to the Company and the purchaser cannot be held to his contract; and (by Chelmsford, L.C.), if an untrue statement is made founded on a belief destitute of aU reasonable grounds, or which the least inquiry would have immediately corrected, it may fairly and correctly be characterised as misrepresentation and deceit: (The Western Bank of Scotland v. Addie, Law Rep, 1 H. L., Scotch App., 145.) Where a person believes that he has been misled, by representations 90 The Gompwtdes Act, 1862. which are false or deceptive, into taJdng shares.in a proposed Company, it is his duty to raise the objection at an early period, and to be guilty of no needless delay. The same rules as to false or deceptive representa- tions which are applicable to contracts between individuals are also applicable to contracts between an individual and a Company. No misstatement or concealment of any material facts or circumstances ought to be permitted in a prospectus issued to invite persons to become shareholders in a projected Company. The public are, in such a case, entitled to have the same opportunity of judging of everything material to a knowledge of the true character of the imdertaldng as the promoters themselves possess. Where there has been fraudulent misrepresentation, or wilful concealment of facts, by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it, that he might have known the truth by proper inquiry. The phrase " available capital of the Company " is not a true, but is a deceptive, description of capital which may be raised under the borrow- ing powers conferred upon directors. Where a prospectus described a contract for the construction of a line of railway as entered into at " a price considerably within the available capital of the Company," and the facts were, that from the nominal capital of 500,000Z. were to be deducted 50,000Z. as the price of purchasing the concession to make the railway, and the contract price for making it was 420,000i., the repre- sentation was held to be untrue and deceptive. A prospectus of a railway Company stated that " the engineer's report, maps, plans, &c., may be inspected, and further information obtained at the offices of the Company." An applicant for shares signed the printed form of application, in which, as usual, it was stated that he agreed to be bound by the conditions and regulations contained in the Memoran- dum and Articles of Association. An examination of all these papers would have afforded him the information, the want of which he alleged as a ground for rescinding his contract. Trusting to the representations, he did not examine all ; and it was held, that his neglect to do so was no answer to his demand to be relieved from the contract. A bill was filed to rescind a contract on the ground of there having been misrepre- sentations of facts. Relief was given in the court below on only some of the alleged grounds. An appeal was brought against the decree ; and it was held that it was open to the respondent to sustain the decree on any or all the grounds stated in his bill : (The Central Railway Company of Venezttela, apps., v. Kisch, resp.. Law Rep. 2 H. L. 99 ; 16 L. T. N. S. 500.) A Company was formed for the purpose of making a railway in Switzerland imder a concession vested in H., a contractor, and trans- ferred by him to the Company under an agreement by which he obtained the contract for making the line, the terms of the contract being stated in the Articles of Association. Before the formation of the Company H. agreed to give S. , who afterwards became the chairman of the board of directors, 2000/. worth of paid-up shares, and after the Company was formed he paid the deposit and allotment moneys on the shares taken by S. and several other directors. H. also gave to C. and W., who afterwards became directors, bills for 10,000/., they undertaking to renew them at 5 per cent, interest vrntU H. should receive "the promotion money or other payments " from the Company. C. and W. for the bills were to procure a credit Association to bring out the Company. The directors issued a prospectus not containing any mis- representations, but not mentioning the transactions between H. and D^istribution of Capital. 91 the directors. The Master of the Rolls held that there was no such suppression of material facts in the prospectus as to entitle a person who had been induced by A. to take shares in the Company to be relieved from his shares : (Heymann v. European Central Railway Company, Law Rep. 7 Eq. 154.) The Master of the Rolls considered that the transactions in question in this case could not be considered as dealings between a trustee and his cestui que trust, and so avoidable, and that as the profits of the contract would aU belong to H., therefore, S., C, and W., derived no advantage from it. The plaintiff, too, had notice of the contract ; what he did not know was that the qualification of S. had been paid by another person. But at all events his Lordship thought that even if C. and W. received money improperly from the Company, the shareholders could not, upon that ground, leave the Company. The plaintiff did not take any steps to repudiate his contract for three months after becoming aware of the alleged suppressio veri. This last ground was perhaps not the least influential motive for the decision at which hfs Lordship arrived in this case. In a case of this kind the recalcitrant shareholder has no remedy against the directors, if he fails against the Company, because there is no privity between the directors and him. The prospectus, which was circulated after the incorporation of a limited Company, commenced by stating, in prominent type, that more than half the first issue of 5000 shares had already been subscribed for, applications being invited for the " remaining shares," and that the Company had contracted for the purchase of two properties, viz., B. and A., on which "upwards of 70,000/. has already been expended bythe vendor in buildings and improvements, in addition to the purchase-money paid by him for the land." It appeared that S., who was the person engaged in getting up the Company, had contracted to buy estate A. for the purpose of seDing it to the Company, but had not expended any money at all upon the estate, although it was alleged, but not proved, that 7O,O00Z., or some such sum, had been laid out by the persons from whom S. purchased. He had verbally agreed to purchase estate B. ; but had not signed any written contract. Before the prospectus was issued, and while the terms of it were under discussion, S. signed an agreement by which he " subscribed for 2510 shares " in the Company, and re- quested the directors to " allot that number to tiim or his nominees, in such manner as he might direct at the time of allotment." After the prospectus was issued, S., by his agents, procured applications for shares (including 200 for himself), to an amount exceeding the 2500, or half of the first issue of 6000. On a bin, filed before any proceedings for winding-up the Company, by one of these applicants (to whom ten shares were allotted), to set aside the allotment on the groimd of fraudulent misrepresentations con- tained in the prospectus, as to the subscription for more than half the first issue, as to 70,0002. having been expended by S. upon estate A., and as to there being any binding contract for the purchase of estate B., it was held that there had been such an amount of misrepresentation by the directors, and by their authorised agent S., for whose statements, having adopted and had the benefit of them, they were responsible, that any contract to take shares entered into on the faith of the prospectus, should beset aside: (Ross v. Estates Investment Company, Law Rep. 3 Eq. 122 ; 36 L. J. Ch. 54 ; 15 L. T. N. S. 272 ; affirmed on appeal, S. C, Law Rep. 3 Ch. App. 682.) 92 Tho Companies Act, 1862. The decree of Wood, V.C., in whose court the cause was tried, having ordered that S. should not only pay the costs of the suit, that is to say, be jointly and severally liable for the costs of the suit, but further that he should be jointly and severally hable for the repayment of the money which was paid as a deposit for the plaintiff's shares, the Court of Appeal held that the decree should be varied with regard to S.'s liability for the repayment of the deposit, although it was right as regards his liability for costs. In February, 1865, a Company was incorporated with a capital of 25,000Z. in 2600 shares. The articles provided that the first directors should be determined by the subscribers to the Memorandum of Asso- ciation, that the qualification of the directors so appointed should be ten shares, and of future directors, thirty shares, and that the promoter should receive 2500Z. as promotion money. In the same month, a pro- spectus was issued, giving the names of seven persons of position (not the subscribers to the memorandum), one of them of considerable local influence, as directors, and stating that "the directors and their friends have subscribed a large portion of the capital, and they now offer to the public the remaining shares." The facta were that the directors had subscribed for, nominally, only ten shares each, and actually nothing, for the shares agreed to be allotted to them were fuUy paid-up shares, for which they paid, but were by a private arrangement with the pro- moter, afterwards repaid out of the 2500Z. ; the number of shares taken by " friends" of the directors, treating that word as persons who became subscribers through their influence, consisted only of 140, which were taken by one firm. The whole number of shares taken was 762, and agreed to be taken besides 4.S0. Plaintiff applied, on the faith of the above prospectus, for fifty shares, which on the 15th of March were allotted to him, and on which he paid 25Z. deposit, and 75Z. allotment money. The directors admitted that the prospectus was issued by their authority. It was held that the statement in the prospectus was a clear misrepresentation, which overthrew the contract between the plaintiff and the Company, and that, as the statement related to the directors' own acts, they must be fixed with a guilty knowledge of the misrepre- sentation : (^Henderson v. Lacon, Law Rep. 5 Eq. 249.) See, as regards this decision, Oakes and Peeky. Turquand (Law Rep. 2 H. L. 325), infra; and Kent v. The Freehold Land and Brick-making Company (Law Rep. 3 Ch. App. 493), infra. Wood, V.C, in this case, considered that the decision in Oakes v. Turquand did not strictly apply, and that the observations of the law lords in that case, with respect to the point before him, were mere dicta. In the case of The Neii' Brunswick and Canada Railway Company v. Muggeridge (1 Drew. & Sm. 383), Kindersley, V.C, referring to misrepre- sentations in a prospectus, observed that " even assuming that these misrepresentations or want of accurate representations, were not inten- tionally fraudulent, those who make them cannot take advantage of want of caution and prudence on the part of tliose who are misled by them." As to the rescission of a contract to take shares, see, also, Re Reese Riivr Silrer Mining Companij, Smith's case (Law Rep. 2 Ch. App. 604 ; 36 L. J. 618, Ch. ; 16 L. T. N. S. 549), infra. A Company issued a prospectus, headed " Second issue of 10,000 shares," wid stating, among other things, that the first issue of 10,000 having boon fully subscribed for, the directors had resolved on a second issue, which they mitioipated would be quite sufficient for the require- Distribution of Oapital. 93 ments 'of the association. On the faith of this prospectus B. applied for and was allotted fifty shares in the Company. Subsequently it appeared that although 10,000 had been issued, 7500 only had been subscribed for, and B. filed a bill asking to be relieved from his shares on the ground of fraud and misrepresentation in the prospectus. He was held not entitled to the relief asked : (Green y. The General Provi- dent Assurance Company, 18 L. T. N. S. 500.) A contract to take rfiares in a Company cannot be set aside because it was founded on a prospectus which contains exaggerated views of the advantages of the Company, but does not contain any material misstatement of fact. Where, therefore, a prospectus stated that a certain invention which it was the object of the Company to work had been tested, and that according to the experiments the material could be produced at a specified cost, but that it was intended to test the invention further, and the invention turned out worthless, and it appearing that there had been some testing, it was held that this was not such a misrepresentation as would enable a purchaser of shares to set aside the contract : (Denton v. Macneil, Law Rep. 2 Eq. 362.) The directors of a Company, which was intended to own and trade with steamships, issued a prospectus stating, amongst other things, that the Company would commence operations with six screw steamships of a certain description, and referring to the Articles of Association. The plaintiff signed and addressed to the directors the printed form of application annexed to the prospectus, asking for fifty shares, which were allotted to him. The Company had no steamships at the time when the prospectus was issued, but afterwards obtained some, not of the description mentiofted in the prospectus ; and before the shares were allotted to the plaintiff one of the directors named in the prospectus had retired, and another was appointed in his place. The plaintiff filed a biU on behaK of himself and all the other share- holders, except the directors who were made defendants, seeking to be relieved from his shares on the ground of misrepresentation ia the prospectus. It was held that such a suit could not be maintained by the plaintiff on behalf of the other shareholders, but that his suit was not therefore to be dismissed, as he had merely made a misjoinder of plaintiffs ; that the change of directors before the allotment did not render the allotment invalid ; and that the statement as to the six ships was merely ambiguous, and that the plaintiff might have ascertained that it was not hterally true by reference to the Articles of Asso- ciation. The prospectus named three persons as directors, who had consented to act, but never took any shares. It was held that this was not a misrepresentation, and that, under all the circumstances, the plaintiff could not be relieved from his shares : (Hallows v. Fernie, Law Rep. 3 Eq. 520 ; on appeal, S. C, Law Rep. 3 Ch. App. 467.) Where a person has been, by the fraudulent misrepresentations of directors, or by their fraudulent concealment of facts, drawn into a contract to purchase shares, the directors cannot enforce the contract against Imn, but he may rescind it. However, he must do so withiu a reasonable time. A contract induced by fraud is not void but voidable, and, therefore, though the persons who by their fraud induced it cannot enforce it, other persons may, in consequence of it, acquire interests and rights which they may enforce against the party who has been so induced to enter into it : (Be Overend, Gumey, and Co. ; Oakes v. Turqnand and Harding, Law Rep. 2 H. L. 325.) 94 The Oom/pmiies Act, 1862. As to the efFect of the winding-up of the Company on a shareholder's right to rescind his contract to take shares, see infra. It appears that a transferee of shares wiU not be relieved from his liabilities imder circumstances that would entitle a shareholder taking shares directly from the Company to be relieved on the ground of mis- representation. See NichoVs case, 3 De G. & J. 387 ; and Duranty^s case, 26 Beav. 268. Rescission on the Ground of Variance between Prospectus and Memorandum or Articles. A distinction is to be made between the cases, on the one hand, of a shareholder who has taken shares on the faith of fraudulent representa- tions or concealment of facts, and, on the other, of a person who has taken shares on the faith of a statement of the objects of the Company, which is different from, and issued before, the statement of those objects as contained in the Memorandum of Association. In the former case there is an actual contract between the Company and the shareholder, though a contract which he can render void, by taking prompt measures for that purpose on discovering the fraud ; but, in the latter case, the application for, allotment and notice of allotment of, the shares make no contract between the Company and the allottee, inasmuch as he has applied for shares in the particular Company set forth in the prospectus, but has given no consent to a contract with the Company described in the Memorandum of Association, and upon whose register he is entered. He may therefore, as a matter of right, have his name removed from the register if he applies within a reasonable time after the registration of the Memorandum of Association and before the commencement of a winding-up. If he omits, however, to apply within a reasonable time (as to which see Peel's case, infra) after the registration of the memo- randum, or does acts as a shareholder after he might have become acquainted with its contents, he wiU be held to have bound himself to the Company by acquiescence, and to have forfeited the right (especially as against other shareholders or the creditors of the Company) of repudiating his shares : (Downes v. Ship, Law Rep. 3 H. L. 343.) A mere difference in the language of the prospectus and the memo- randum would not relieve him from his liability. The question would be whether the obligations incurred imder the two documents were substantially different : (S. C.) Before a Company had been registered, a person applied for shares on the faith of a prospectus stating the objects of the Company, and imme- diately after its registration shares were allotted to him. The objects of the Company, as defined by the Memorandum of Association, extended much further than the prospectus. He was held entitled to have his name removed from the register. The Company was registered on the 28th of April, 1865. In the autumn the Committee of the Stock Exchange refused to appoint a settling day, on the ground of a variance between the prospectus and memorandum in a point of minor importance. S , who had taken shares on the faith of the prospectus, attended a meeting in September, held for the purpose of correcting this variance. It was held that lus attending this meeting was not a sufficient ground for fixing him with notice of the more important variances between the prospectus and memorandum, so as to affect his rights by acquiescence, he positively swearing that he did not know of those variances, and had never seen the memorandum, or had any acquaintance with its con- tents, till May, 1866, when he at once repudiated his shares : {Re Russian Distribution of Oa/pital. ' 95 {Vyksouw&ky) Iron Works Company, Stewart's case, Law Rep. 1 Ch. App. 674 ; 35 L. J. Ch. 738.) See, also, Re Russian (Vyksounsky) Iron Works Company, NeilVs case and Jackson's case (W. N. 1867, p. 120), in both of which the applica- tions were similar to that in Stewarts case ; but the court granted the former but refused the latter. A. applied for shares in the same Company, on the faith of the state- ments contained in the prospectus in April, 1865, and in answer to his application received a letter of allotment. A. made a further payment required by the prospectus, and in June, 1865, received in exchange for the banker's receipt a certificate that he was the proprietor of fifteen shares in the Company, " subject to the provisions of the Memorandiun and Articles of Association, and to the rules and regulations of the said Company." The objects of the Company, as stated in the Memorandum and Articles of Association, were more extensive than those stated in the prospectus. A. never attended any meeting of shareholders, and did not see the Memorandum or Articles of Association until May, 1866. It was held that he was entitled to have his name removed from the register, as the terms of the certificate did not amount to notice that he had entered into a new contract, or that the objects of the memorandum and articles were more extensive than those of the prospectus on the faith of which he appUed for shares : (Re Russian ( Vyksotmsky) Iron- works Company, Webster's case. Law Rep. 2 Eq. 741.) Where a prospectus stated that the vendors of certain mines, proposed to be worked by a Company, had agreed to sell them for 3750/. and that the Articles of Association were ready for inspection ; the articles stated the true agreement, by which the vendors were to receive 5750Z. Nearly four months after an allotment to the plaintiff, he for the first time discovered the misstatement, and demanded repayment of the money paid on his shares. A correspondence ensued, and a bill was filed seven months after the allotment. It was held that the plaintiff had a right to be relieved from his shares : (Langham v. The East Wheal Rose Con- solidated Silver Lead Minirtg Company, 37 L. J. Ch. 253.) Power to rescind larred by Laches or Acquiescence. However strong the grounds may be on which a shareholder is en- titled to rescind his contract to take shares, he may lose the power of doing so by laches or acquiescence ; and this is the case whether the ground for rescinding his contract be misrepresentation and fraud, or variance-between the objects stated in the prospectus and memorandum respectively. S., on the day of registration of a Company for working mines in N., received a prospectus issued by the Company which stated that they had agreed to purchase a property in N., containing valuable mines, some of which were in full operation, and making large daily returns. S., on the faith of this, took shares, and was registered as shareholder on the 2nd of August, 1865. On the 30th of December, 1865, up to which time he had heard nothing to throw doubt on the prospectus, he received a report from the Company showing that the Company had found the property worthless, and had agreed to purchase another instead, and promising a detailed report in a short time. On the 19th of January, 1866, S. received the detailed report, showing that the property was worthless, and that the workings on it had been abandoned before the prospectus was issued. The d&ectors, as it appeared, had issued the prospectus on the faith of the representations of the vendor of the pro- 96 The Companies Act, 1862. perty, and without knowing of their untruth. On the 6th of February, 1866, S. filed a bUl to be reUeved from his shares. On the 28th of May, 1866, a winding-up order was made, and S., who had been refused leave to prosecute the suit, applied under the winding-up to have his name removed from the list of contributories : it was held (in accordance with the opinion of the Master of the RoUs), that S. had not been guilty of laches, for that the report received on the 19th of January did not show the representations in the prospectus to have been untrue at the time when it was issued, and that S. was therefore right in waiting for further information before he took proceedings to get rid of his shares : also (reversing the decision of the Master of the RoUs), that S. was entitled to have his name removed from the list of contributories : (Re Reese River Silver Mining Company, Smithes case, Law Rep. 2 Ch. App. 604 ; 36 L. J. Ch. 618 ; 16 L. T. N. S. 549.) The above decision was unfavourably remarked upon by Lord Chelmsford, L.C., and Lord Colonsay, in their judgments in Oakes v. Turquand, Re Overend, Gumey, Sf Co. (Law Rep. 2 H. L. 362, 378). The latter, however, distinguished it from the case before him on the ground that Smith had made an application to have his name removed from the register on the ground of fraud before there had been any proceedings for winding-up the concern. See effect of winding-up, infra. See, however, the remarks of Wood, V.C., on both these cases in his judgment in Henderson v. Lacon (Law Rep. 5 Eq. 263), supra, where he followed the decision in Smith's case. L., on the faith of a prospectus, applied, on the 4th of September, 1865, for shares in a Company not yet registered. It was registered on the 11th of September, 1866, under a memorandum differing materially from the prospectus. On the 7th of October, 1866, shares were allotted to L., ana on the 14th of October he paid upon them the sum payable on allotment. On the 14th of May, 1866, he was supplied with copies of the memorandum and articles, the contents of which he had not known imtil that time, and on the 16th he laid them before his sohcitor, who advised him as to his position. On the 27th of September, 1866, he, for the first time, gave the Company notice that he repudiated his shares. The Court of Chancery Appeal held (affirming the decision of Wood, V.C), that the delay which had taken place since the 16th of May, 1866, was sufficient to deprive L. of any right which he had on that day to repudiate his shares on the ground of the variance between the prospectus and the memorandum ; and also (per Lord Cairns, L.J.), that L. had not, on the 16th of Maj, 1866, any right of repudiation, for that, at the expiration of a reasonable time after the registration of the Company, he must be held either to have acquainted himself with the memorandiun and articles, or to have been content to waive any examination of them ; and it seems that such reasonable time had expired at the time when L. made the payment of the 14th of October, 1865. K. appHed for shares on the 18th of April, 1865, in a Company which was registered on the 28tli of April, imdor a memorandum differing from the prospectus. On the 29th of April shares were allotted to him, and on the Uth of May he paid the balance of the deposit. On the 25th of Apra, 1866, he also made a payment on account of a call in respect of the shai-es ; at which time he alleged that he as ignorant of the con- tents of the Memorandum of Association. On the 17th of July he apphed under sect. .S5, infra, to have his name removed from the register. It was held (reversing the decision of W^ood, V.C), that the delay which Distribution of Capital. 97 had taken place had deprived K. of his right to relief : (Re Cachar Company, Lawrence's cane; Re Russian {Vyksounsky) Iron Worlcs Com- pany, KincaitTs case. Law Rep. 2 Ch. App. 412 ; 36 L. J. Ch. 490 ; and KincaicCs case, 36 L. J. Ch. 499 ; 16 L. T. N. S. 222.) A shareholder having, in August, 1865, given notice of his resolution to retire from the Company, and to have his deposit money returned immediately, on the ground of a discrepancy between the Articles of Association and the prospectus (which discrepancy was corrected in the September following), took no further step till March, 1866, but paid a call iu the meantime, and then wrote demanding the return of his allot- ment money, on the ground of a new discrepancy, of a totally different character, which he had only just discovered. On a motion by. the share- holder to have his name removed from the register, it was held that, having put himself at arms' length with the Company in August, 1865, he must be taten then to have known all the grounds of objection on which he intended to rely, and the motion was refused : (Re Russian (Vyksounshy) Iron Worlcs Company, Wliitehouse^s case, Law E.ep. 3 Eq. 790.) It seems that an allottee of shares in a Company, who takes a transfer of other shares in the same Company, wiU not be relieved even from his allotted shares, on the ground of having discovered a variance between the prospectus and articles after the date of the transfer, but wUl be held as having had notice from that date for all purposes whatever, of the contents of the articles whether in fact he had such notice or not. See Ih., Paige's case, 15 W. R. 891. A., a shareholder, on the 2nd of July, 1866, gave notice to the Company that, unless within three days steps were taken to remove his name from the register, he should apply to the court. The directors on the next day (3rd of July, 1866) replied that they should oppose his application. A. left town without taking any further steps, and on his return, about the end of August, finding that his name was still upon the register, he stated that he should apply to the court as soon as the Long Vacation was over. It was held that the delay between the 3rd of July and the beginning of the Long Vacation was fatal to A.'s application ; although, having regard to a subsequent course of nego- tiations, between the 30th of October, 1866, and the 8th of March, 1867, from which he was led to suppose that the Company would themselves remove his name, A.'s application, though refused, should be refused without costs: {Re Russian (Vyksounshy) Iron Works Company, Taite's ease, Law Rep. 3 Eq. 795 ; 36 L. J. Ch. 475 ; 16 L. T. N. S. 843.) A person who would otherwise be entitled to set aside a contract on the ground of variance between the prospectus and the memorandum of a Company, cannot do so if, after discovering the variance, he has acted in a manner inconsistent with the repudiation of the contract. Where, therefore, a person was induced to take shares in a Company on the faith of representations of the objects of the Company contained in the prospectus, which he afterwards discovered to be false, and sub- sequently to the discovery instructed his broker to sell the shares, it was held that his name could not be removed from the register under sect 35, infra ; and it seems, if a prospectus of a Company states that the Articles of Association may be seen at a certain place, a person taking shares on the faith of the prospectus, and without inspecting the articles, must be held to do so with notice of the contents of such articles, provided they do not contain anything incompatible with the prospectus : (Re Hop and Malt Exchange and Warehouse Company, 98 The Companiefi Act, 1862. Exparit Bricjfjs, Law Rep. 1 Eq. 483; 35Beav. 278 ; and 14 L. T. N. S. 39-) , . t Where there is a material variance between the prospectus ot a Company issued before the registration of the Company, and the Memorandum of Association, a person who has applied for shares on the faith of the prospectus, will have a reasonable time allowed within which to examine the memorandum, and repudiate the shares; but it, was held (affirming the decision of the Master of the Rolls) that where a shareholder had not examined the memorandum for more than eighteen months, and had taken no steps to repudiate the shares for some time after that, his name should not be taken off the list of contributories on the windmg-up of the Company : (Ke Madrid Bank, Wilkinson's case, Law Rep. 2 Ch. App. 636 ; 36 L. J. Ch. 489.) Nothing was said in the judgment in this case as to the effect of a winding-up on a shareholder's right of resciuding his contract. The case was decided before the decision of Oakes v. Turquand (Law Rep. 2 H. L. 325), infra; and it remains to be seen whether the principles laid down iu that case with regard to the rescission of a sharetaking contract on the ground of fraud will be applied in cases of variance between the prospectus and the memorandum of a Company: (see infra.') To raise a case of acquiescence express or implied notice must be established against the person alleged to have acquiesced. Notice, how- ever, of articles is presumed after the lapse of a reasonable time after their registration. In a case decided about the same time as the last, it was held that a person who applies for shs^res in a Company formed under this act ought, if a Memorandum and Articles of Association are in existence, to look at them before he applies for shares ; and, if those documents are not in existence at the time of his application, he ought at the very latest, when he receives his allotment of shares, to satisfy himself that there is nothiag m the memorandum or articles to winch he desires to object. If he does not do this he wOl be held bound by the contents of the memorandum and articles, cveu although he were in fact ignorant of those contents. Therefore, where the prospectus of a Company stated that copies of the Memorandum and Articles of Association could be seen at the office of the solicitors of the Company, P., who applied for shares on the -llt\\ of June, 18C>5 (the day on which the Company was registered), received an allotment on the 18th of July, 1865, received a dividend on his shares in February, 1866, and took out a smnmons to have liis name removed from the register of shareholders of the Company iu January, 1867, upon the ground of a material variation between the Memorimdum of Association and the prospectus, on the faith of which he applied for his shares, was held to be too late in his application, altliough he swore tliat he was, until December, 1866 (more than six months :iftor an order had been made to wind-up the Company), ignorant of the variation of which he complained: {Re Barned's Banking Compani/, E.c parte Peel, Law Rep. 2 Ch. App. 674; 16 L. T. N. S. 780, Ch.) ^ ' i- ff Effect of Winding-up Order on Power of Rescission. Whatever right ii shareholder may have to rescind his contract to take shares on the ground of fraudulent representation or concealment of facts, that right is lost (at all events as against creditors) once a winding-up of the Company has commenced. It was held, in the case of Uukes and Peek v. Turquand, Re Overend, Distribution of Capital. 99 Gurney, and Co. (Law Rep. 2 H. L. 825 ; 16 L. T. N. S. 808), that a shareholder who had taken shares in a Company on the faith of a prospectus in which there were both suggestio falsi and suppressio vert, could not on the ground of fraud as against the creditors of the Company free himself from his liability to contribute in the winding-up, although (to use the words of Chelmsford, L.C.) " It is quite clear that Oakes might originally have disaflBrmed that contract and divested himself of his shares, and that he never did any act to affirm it, nor was aware of the true state of the firm of Overend, Gurney, and Company at the time of the formation of the new Company, nor until after the failure. No dividend was paid to the shareholders, and no general meeting was called, the Articles of Association prescribing that the first general meeting should be held not more than twelve nor less than ten months from the day of incorporation, and the Company having come to an end before the twelve or even the ten months had expired." See Re Warren's Blacking Company, Penteloiv^s case, Law Rep. 4 Ch. App. 178, supra. A shareholder who institutes proceedings against a Company to repudiate his shares, and is prosecuting them when a winding-up order is made, is entitled to be struck off the register if he make out his case of misrepresentation. But where a shareholder instituted no proceed- ings of his own against the Company, but pleaded misrepresentation to an action for calls, and obtained a verdict (a rule was subsequently made absolute to set the verdict aside), and shortly after the verdict a wind- ing-up order was made, it was held that this did not amoimt to such action on his part as brought his case within the above rule : (Re Cleve- land Iron Company, Ex parte Stevenson,' 16 W. R. 95.) But a shareholder will not be relieved from shares in a Company upon the ground of misrepresentation in the prospectus on a bill filed after the presentation of a petition for winding-up on which an order was subsequently made : (Kent v. Freehold Land and Brickmaking Com- pany, Law Rep. 3 Ch. App. 493.) In his judgment on tHs case. Cairns, L.C, observed: "As for the argument that the plaintiff had shown a clear intention to repudiate (i. e., by his solicitor writing to the Company) as early as the 24th of July, 1866 (i. e., before presentation of the petition to wind-up), the fact that he had then written intimating his repudiation of the shares when coupled with the fact of his delay to file his biU for two months from that time put his case really in a worse position than it would have been in otherwise." As to the effect of a winding-up with regard to a person seeking to repudiate his shares on the ground of variance between a prospectus issued before registration and the memorandum, see the judgment of Chelmsford, L.C, in Oakes and Peek v. Turquand, Law Rep. 2H. L. 351. The prospectus of a proposed Company described as a "finance bank," stated eight objects, some of which went beyond ordinary banking busi- ness. In May, S., on the footing of this prospectus, applied for fifty shares, and paid the deposit. On the 1st of June the Company was registered with a Memorandum of Association defining its objects, which went considerably further beyond the ordinary businesss of banking than the objects mentioned in the prospectus, and on the same day the directors sent S. a letter of allotment of fifty shares. In December of the same year the Company failed, and a petition to wind-up was filed. S. applied to have his name taken off the register on the ground that he 100 The Oompcmies Act, 1862. never had agreed to become a shareholder in a Company with these oxtpiidod objects. There being no evidence to rebut S.'s positive oath, that untU the Company had failed he never had any notice of the extension of the objects of the Company beyond those named in the prospectus. The Court of Chancery Appeal held (affirming the decision of Wood, V.C.) that his name ought to be removed from the register: (Ite the Scotliih ami Unicersul Finance Bank, Ship's case, 2 De G. J. & S. 544, on appeal.) The decision in this case, as well as those in Webster's case and Stewart's case, supra, were disapproved of in Oakes and Peek v. Tnrqiiunil (Law Rep. 2 H. L. 351). Chehnsford, L.C., in his judgment, remarked, "I confess that tliese decisions are not at all satisfactory to my mind. I think that persons who have taken shares in a Company are bound to make themselves acquainted with the Memorandum of Association, which is the basis upon wliich the Company is established. If they fail to do so, and the objects of the Company are extended be- yond those in the prospectus (a fact which may be easily ascertained) the persons who have so taken shares on the faith of the prospectus ought, in my opinion, to be held bound by acquiescence. In Ship's case the judges partly proceeded on the oath of the party that he never had notice of the extension of tlie objects of the Company. However true this may be, it depends entirely upon the party's own assertion ; and the answer to it is, ' You might have made yoiirself acquainted with the proceedings of the Company, and ought to have done so.' " Subsequently, Ship's case came before the House of Lords on the appeal of a contributory of the Company, named Downes, who had been permitted to intervene and appeal from the order of the Vice-ChanceUor, and afterwards from the decision of the Lords Justices, by which Ship's name was removed from the register of shareholders of the Com- pany. It appeared that Downes was one of the parties to the prospectus, on the faith of which Ship took his shares, and was also a party to the memorandum by which the business of the Company was extended greatly beyond the terms of the prospectus. It was held that Downes' application to rescind the order for the removal of Ship's name had been rightly refused by the court below, and that whatever might be Ship's liability as between himself and the official hquidator or another innocent shareholder, or a creditor of the Company (as to wliich no opinion was expressed), Downes was precluded from insisting upon retaining him in the Company either on the groimd of laches or acquiescence. The appeal accordingly was dismissed with costs : (Doinies v. Ship, Law Rep. 3 H. L. 343.) 24. Tritvsfcr by personal rejveseiLtative. — Any transfer of the share or otlior interest of a deceased member of a Company, (nr) under this act, made by his personal represen- tative, shall, notwithstanding such personal representative may not himself be a member, be of the same validity as if he had been a member at the time of the execution of the instrument of transfer. (a) A H(/io»(/.]_See clause 12 of Table A. as to the transmission of the shares of a deceased member. 25. Reylstrr of mrmhrrs.— Every Company under this act shall cause to be kept in one or more books a register of its DisUihution of Capital. 101 members, (a) and there shall be entered therein the follow- ing particulars : (1.) The names and addresses, and the occupations, if any, of the members of the Company, with the addition, in the case of a Company having a capital divided into shares, of a statement of the shares held by each member, distinguishing each share by its num- ber : (&) And of the amount paid or agreed to be considered as paid(c) on the shares of each member : (2.) The date at which the name of any person was entered in the register as a member : (3.) The date at which any person ceased to be a mem- ber : (cZ) And any Company acting in contravention of this section shall incur a penalty not exceeding five pounds for every day during which its default in complying with the pro- visions of this section continues, and every director or manager of the Company who shall knowingly and wilfuUy authorise or permit such contravention shall incur the like penalty. (a) A register of its memhers.'] — This and tlie following sections of the act up to sect. 37 contain provisions respecting the register of members, and by sect. 37 it is jn&de prima facie evidence of any matters directed or authorised by the act to be inserted in it. See sect. 35 as to cases where the court wall rectify the register. As to the duty imposed on a Company by this section to keep a correct register, and their liability to make good losses consequent on a breach of this duty, see Re Bahia and San Francisco Railway Company and Amelia Trittin and others (Law Eep. 3 Q. B. 584). Where a Company is required to register a transfer of shares on which it has a -hen, that lien must be discharged before the Company will be obhged to register the transfer. See Re London, Birmingham, and South Staffordshire Bank (34 Beav. 332 ; 5 N. R. 351), p. 28, ante. A shareholder is not indebted to a Company on account of a call until due notice of such call, and of the time and place for payment of it shall have been given, in accordance with the provisions of the Articles of Association. A shareholder may, therefore, claim to have a transfer of his shares registered after a call made, and before notice of it so given to him : (Rudolph V. The Inns of Court Hotel Company (8 L. T. N. S. 651, Q. B. ; 32 L. J. Q. B. 369.) (J) Distinguishing each share by its number. — Sect. 8 of 8 Vict. c. 16, enacts that a person shall be deemed a shareholder ' ' who shall Jiave subscribed, &c., and whose name shall have been entered on the register of shareholders hereinafter mentioned :" (words similar to those used in sect. 23, supra.) Sect. 9 prescribes the mode of making and keeping the register and (among other things) that it shall " distinguish each share by its niunber." It was held, in an action for calls, that sect. 8 was complied with, although the register did not show the distinguish- 1U2 The Compcmies Ad, 1862. ing numbers of the defendant's shares, it being proved otherwise that the shares were in fact numbered : and an opinion was expressed that the provisions in sect. 9 (corresponding to the above section of this act) as to the mode of keeping the register are directory only, except with reference to the use of the register as prima facie evidence of liability : (East GloucentersJtire Railway Cnmpamj v. Bartholomew and others, Law Rep. 3 Ex. 16.) (c) The amount paid or agreed to he considered as paid, §r.] — Where the directors of a bank, then in an insolvent condition, proposed to their shareholders that the holders of 10/. shares, on which 71. had been paid should advance 31. on this alternative, viz., if the bank should be able to go on, the advance was to be treated as a loan at :10/. per cent, in- terest, while, if the bank were wound-up, the advance was to be taken as paid upon shares in anticipation of calls. It wovdd seem that such an arrangement was invalid under this section, as the money advanced had not been entered on the register as " an amount paid or agreed to be considered as paid on the shares :" (7?e Oriental Commercial Bank, Barge's case. Law Rep. 5 Eq. 420.) On the subject of fuUy paid-up shares, see now sects. 24 and 25 of " The Companies Act, 1867,'' post. (d) The date at which any person ceased to be a member.'} — After the name of a person has been wrongfully placed upon the register of a Company it is not in the power of the directors, by simply removing his name from the register, effectually to indemnify him against hability arising from such wrongful insertion of his name ; if they desire to do so they must apply to the court for the purpose ; and if they neglect so to do, the shareholder may himseK apply, notwithstandiiig that his name has been in fact removed : (Re the Bank of Hindustan, China, and Japan, Martin's case, 2 H. & M. 669 : 11 Jiur. N. S. (io.j, Ch. : 12 L. T. N. S. 671.) 26. Annual list of member-'^. — Every Company under this act, and having a capital divided into shares, shall make, once at least ia every year, a list of all persons who, on the fourteenth day succeeding the day on which the ordinary general meeting, or if there is more than one ordinary meeting in each year, the .first of such ordinary general meetings is held, are members of the Company ; and such list shall state the names, addresses, and occupations of all the members therciu mentioned, and the number of shares held by each of them, and shall contain a summary specifying the following particulars : (1.) The amount of the capital of the Company, and the number of shares into which it is divided : (2.) The number of shares taken from the commence- ment of the Company up to the date of the summary : (.1.) The amount of calls uiiule on each share : {'1.) 'I'lio total aniouut of calls received : (5.) The total auiount. of calls unpaid : (6.) The total amount of shares forfeited : Dist7-ibution of Capital. 103 (7.) The nameSj addresses, and occupations of the persons who have ceased to be members since the last list was made, and the number of shares held by each of them. The above list and summary (a) shall be contained in a separate part of the register, and shall be completed within seven days after such fourteenth day as is mentioned in this section, and a copy shall forthwith be forwarded to the Registrar of Joint-Stock Companies. (a) The above list and summary. — For a form of this list aud sum- maiy, see Form E. ia the second schedule to this act. where a Company makes a return imder this section to the registrar, he compares it with the previous returns of the same Company, and if they do not agree, he sends it back for correction. See Report of the 28th of May, 1867, qu. 32 and 33. 27. Penalty on Company, 8fc., not keeping a proper register. — If any Company under this act, and having a capital divided into shares, makes default in complying with the provisions of this act with respect to forwarding such list of members or summary as is hereinbefore mentioned to the registrar, such Company shall incur a penalty (») not ex- ceeding five pounds for every day during which such default continues, and every director and manager of the Company who shaU knowingly and wilfully authorise or permit, such default shall incur the like penalty. (n) Shall incur a penalty. '\ — The manner of recovering penalties is prescribed by sects. 65 and 66, infra. 28. Company to give notice of consolidation or of conversion of capital into stock. — Every Company under this act, having a capital divided into shares, that has consolidated and divided its capital into shares of larger amount than its existing shares, (a) or converted any portion of its capital into stock, shall give notice to the Registrar of Joint-Stock Companies of such consolidation, division, or conversion, specifying the shares so consolidated, divided, or converted. (a) Of larger amount than its existing shares.] — By sects. 21 and 22 of " The Companies Act, 1867," a Company may now divide its shares into shares of smaller amount. 29. Effect of conversion of shares into stock. — Where any Company under this act, and having a capital divided into shares, has converted any portion of its capital into stock, (») and given notice of such conversion to the registrar, all the provisions of this act which are applicable to shares only 104 TJip. Companies Ad, 1862. shall cease as to so much of the capital as is converted into stock ; and the register of members hereby required to be kept by the Company, and the list of members to be for- warded to the registrar, shall show the amount of stock held by each member in the list instead of the amount of shares and the particulars relating to shares hereinbefore required. (a) Capital into stock.] — As to the conversion of shares into stock, see clauses 23 — 25 of the regulations contained in Table A., post. 30. Eiifnj of trusts on register. — No notice of any trust, (a) expressed, implied, or constructive, shall be entered on the register, or be receivable by the registrar, in the case of Companies under this act and registered iu England or Ireland. (a) No notice of any trust, §-c. — Where a person's name is placed upon the register by his own consent, he is liable as a member both to the Company and its creditors, notwithstanding that he is only a trustee for another. See Re International Contract Company, Lecita^s case. Law Rep. 3 Ch. App. 36. A shareholder in a Company made an assignment of certain paid-up shares by way of mortgage. The assignee gave no notice to the Company. The assignor had also unpaid shares in the same Company, and in the course of discussions at the board of directors respecting the unpaid shares, the assignor verbally informed the directors of the assignment of his paid-up shares ; but no entry was made on tlie minutes of this notice. The assignor afterwards became bankrupt. It was held that, inasmuch as the directors received the information in the course of the transaction of the business of the Company, the notice was sufficient to make the assignment complete in equity : and that the shares did not remain in the order and disposition of the bankrupt : (Ex parte Agra Bank, Re Worcester, Law Rep. " Ch. App. .5.55.) As to the circumstances under which sliares will bo lield to be in the order and disposition of a bankrupt within the terms of " The Bankruptcy Act, 1849," see p. 53, ante. A., desiring to take shares secretly in a banking Company (established under the repealed act), purchased sliares in the names of B. and C, into whose names the shares wore transferred. It was admitted that A. paid for the shares, and was to receive any profits from them ; but at the time of the purchase the Company were not informed of this. The deed of settlement provided that the Company should not notice any trusts, and that no sale of sluiros should take place without tlie consent of two directors. On the Company being wound-up, B. and C.'a names had been settled on the list as ooiitribulorios. Uiion an application by five contributories, to have .\.'s name imt on the Hst, it was held that it being a, hoiiCt file case of trustee and eesliii i/iie Inisl, ;uid not one of priuci]>al and agent, A.'s name covikl not be placed on tlie list : (East of EihiIiiihI fluiikiiii/ Company, Kr jiarle Jin,/,/, 2 I). & S. -t,')L' ; 11 ,Iur. N. S.'2UJ ; 35 1.. .1. Ch,4:l.) ■■ ' Where shares in a Coniiiaiiy were tr,in, As to the right to require this, where Table A. applies to the Com- pany, see Table A., clauses 2 and 3, post. See, also, Wilkinson v. Anglo-Californian Gold Company, 18 Q. B. 728. (b) Ei-idence of the title of the member, §•£.] — On this subject see Hare V. Wanng (3 M. & W. 362), Shaw v. Fisher (2 De G. & Sm. 11), and Curling r. Flight (6 Ha. 41). T., being the registered holder of five shares, left the share certificates in the hands of her broker. A transfer of the shares to S. and G., pur- porting to be executed by T., together with the certificates, was left with the secretary for registration. The secretary in the usual course wrote to T., notifying that the transfer had been so left, and receiving no answer after ten days, registered the transfer, and removed the name of T., and placed the names of S. and G. on the register as holders of the five shares, giving them certificates certifying that they were the registered holders of the five specific shares. A. bargained for five shares, through brokers in the usual way on the Stock Exchange, and 106 The Companies Act, 1862. paid the value of five shares, and the specific five shares were trans- ferred to him by S. and G., and the name of A. was registered as the holder of the shares, and share certificates were given to liim. It was afterwards discovered that the transfer to S. and G. was a forgery, and the Company was ordered to restore T.'s name to the register by rule of court under sect. 35, infra. On a case stated under that section, it was held that the giving of the certificate by the Company to S. and (x. amounted to a statement by the Company, intended by the Company to be acted upon by pur- chasers of shares in the market, and that A., having acted upon that statement, the Company were estopped from denying its truth. That A. was therefore entitled to recover from the Company as damages for the loss of the shares, the value of the shares at the time the Company first refused to recognise him as a shareholder, with interest at 4 per cent, from that time : (Bi Balda and Han Franci-'co Rrnlicay Company (iiul Amelia Trittin and others, Law Rep. 3 Q. B. oSi.) 32. luqitidwii of rcyider. — The register of members, commencing from ihe date of the registration of the Com- pany, shall be kept at the registered office of the Company hereinafter mentioned : {a) Except when closed as herein- after mentioned, it shall during business hours, but subject to such reasonable restrictiohs as the Company iu general meeting may impose, so that not less than two hours iu each day be appointed for inspection, be open to the iuspec- tion of any member gratis, and to the inspection of any other person on the payment of one shilling, or such less sum as the Company may prescribe, for each inspection ; and every such member or other person may require a copy of such register, or of any part thereof, or of such list or summary of members as is hereinbefore mentioned, on payment of six- pence for eyery hundred words required to be copied : if such inspection or copy is refused, the Company shall incur for each refusal a penalty not exceeding two pounds, and a further penalty not exceeding two pounds for every day during which such refusal continues, and every du'ector and manager of the Company who shall knowingly authorise or permit such refusal shall incur the hke penalty ; and in addition to the above penalty, as respects Companies regis- tered in Euglaml and Ireland, any judge sitting iu chambers, or the vice-\\-anleii of the Stannaries, in the case of Com- panies subject to his jurisdiction, may by order compel an imiuediato inspection of the register. (a) Hcrtiiiii/hr iiieiititvied.'] — Sec sect. 39 of tliis act as to the regis- tered ufHee. • V-\. I'iHrrr to riofc n'^i^tn: — Any Company under this act may, upon giving nulict- by advertisement in some news- papei' circnlating in the district in which the registered Distribution of Oapital. 107 office of the Company is situated^ close the register of members (a) for any time or times not exceeding in the whole thirty days in each year. (a) Close the register of members.'] — Clause 11 of Table A. (first schedule, infra) provides for tlie closing of« the transfer books during the fourteen days preceding the ordinary general meeting in each year. 34. Notice of increase of capital and of members to be given to registrar. — Where a Company has a capital divided into shares, whether such shares may or may not have been con- verted into stock, notice of any increase in such capital (a) beyond the registered capital, and where a Company has not a capital divided into shares, notice of any increase in the number of members beyond the registered number shall be given to the registrar, in the case of an increase of capital, within fifteen days from the date of the passing of the reso- lution by which such increase has been authorised, and in the case of an increase of members within fifteen days from the time at which such increase of members has been resolved on or has taken place, and the registrar shall forth- with record the amount of such increase of capital or members : If such notice is not given within the period aforesaid the Company iu default shall incur a penalty not exceeding five pounds for every day during which such neglect to give notice continues, and every director and manager of the Company who shall knowingly and wilfully authorise or permit such default shall incur the like penalty. (a) Increase in such capital, §-c.] — ^Where a Company reduces its capital, the fact of such reduction must also be registered. As to the course to be pursued in such a case, see "The Companies Act, 1867," s. lb, post. 35. Remedy for improper entry or omission of entry in register. — If the name of any person is, without sufficient cause, . entered in(«) or omitted from (6) the register of members of any Company under this act, or if default is made or unnecessary delay takes place in entering on the register the fact of any person having ceased to be a member(c) of the Company, the person or member aggrieved, or any member of the Company, or the Company itself, (li) may, as respects Companies registered in England or Ireland, by motion in any of Her Majesty's Superior Courts of law or equity, or by application to a judge sitting in chambers, or to the vice-warden of the Stannaries in the case of Companies subject to his jurisdiction, (e) and as respects Companies registered in Scotland by summary petition to 108 The Companie.'^ Act, 1862. the Court of Session, or in sucli other manner as the said courts may direct, apply for an order of the court (/) that the register may be rectified, and the court may either refuse such application, with or -without costs, to be paid by the applicant, or it may, if satisfied of the justice^ of the case, make an order for the rectification of the register, (g^) and may direct the Company to pay all the costs of such motion, application, or petition, and any damages the party (7i) aggrieved may have sustained : The court may in any proceeding under this section decide on any question relating to the title of any person who is a party to such proceeding to have his name entered iu or omitted from the register, whether such question arises between two or more members or alleged members, or between any members or alleged members and the Company, and generally the court may in any such proceeding decide any question that it may be necessary or expedient to decide for the rectification of the register ;(*) provided that the court, if a court of common law, may direct an issue to be tried, in which any question of law may be raised, and a writ of error or appeal, in the manner directed by " The Common Law Procedure Act, 1854," shall lie. Section 85.] — Cairns, L.J., expressed his opinion in Ward s,nd Henry'f: case, infra, tliat the scope and object of this section is to provide for the correction of errors in the register occasioned by the default of the Company, and dissented from the view that under it the court is to try a suit between the vendor and purchaser of shares, and to ascertain who in equity is really the owner of any particular share. The power given by this section may be exercised not only before a wmding-up of a Company, but also (under sect. 98, infra) for the purpose of settling a list of contributories upon a winding-up. Where an application for ii special examiner was made by a share- holder who had given notice of a motion under this section, the comt observed that there was ample jurisdiction under this section to deal with all matters of practice incidental to an application to rectify the register, but refused the application on the ground that sufficient evidence had not been adduced to support it: (Ri' Canhar Company, W. N. 1860, p. ;3G-i.) (n) If the name of niii/ per.-ioii /,<. tfitlwid siifliciciil cause, enteral in, "(-, r, supra. Kelly, C.B.) (/)) Made, accepted, or indorsed hi/ or on behaifor on account of the Com- pany, Ac.]— A promissory note signed by the defendants, who described tlienisolves on the note as directora of the Financial Insurance Company (Limited V and countei-signed by the man.i-er, was in these words: '■ 1 hroo months after date we promise to pay the English Joint-Stock Uank ( Linuted), or orectors, §r.] — The effect of this section is simply to enable parties to give evidence of the opinion of the inspectors by producing a sealed copy of their report, but it in no way afPects the weight to be attached to that opinion when proved. 136 T)i6 Companies Act, 1662. NOTICES. 62. Service of notices on Gompamj. — Any summons, (a) notice, order, or other document required to be served upon the Company, may be served by leaving the same, or sending it through the post in a prepaid letter addressed to the Company, at their registered office. (&) (a) Any summons, ^c] — The word " summons " here seems not to include a writ of summons; the service of such a writ on an incor- porated Company is provided for by sect. 16 of "The Common Law Procedure Act, 1852." See Towne v. London and Limerick Steam Ship Company, 5 C. B. N. S. 730 ; 28 L. J. C. P. 217. (b) At their registered office.'] — ^As to the registered office of a Company, see sect. 39 of this act. 63. Rules as to notices by letter.] — Any document to be served by post on the Company shall be posted in such time as to admit of its being delivered in the due course of delivery within the period (if any) prescribed for the service thereof; and in proving service of such document it shall be sufficient to prove (a) that -such document was properly directed, and that it was put as a prepaid letter into the post-office. (a) It shall be sufficient to prove, ^-c] — This section enacts nothing as to the description of documents that may be served by post, it only provides for the proof of the service of such documents. 64. Authentication of notices of Company. — Any summons, notice, order, or proceeding requiring authentication by the Company, may be signed by any director, secretary, or other authorised officer of the Company, and need not be under the common seal of the Company, (a) and the same may be in writing or in print, or partly in writing and partly in print. (a) Under the common seal of the Company.'] — ^As to cases where a Company must use their seal, see the note under sect. 18, supra. LEGAL PKOCEEDINGS. 65. Recovery of penalties. — All offences under this act made punishable by any penalty may be prosecuted sum- marily before two or more justices, as to England, in manner directed by an act passed in the session holden in the eleventh and twelfth years of the reign of Her Majesty Queeu Victoria, chapter forty-three, intituled An Act to faallihite^ thcrcrforiiudice of the Didie.i ofJii,slices of the Peace Old of Se.'i.iion.'i within England and Wales with respect to summary Conviction.^! and Orders, or any act amending the Lecjat Proceedings. 13^ same ; and as to Scotland^ before two or more justices or the sheriff of the county, in manner directed by the act passed in the session of Parliament holden in the seventeenth and eighteenth years of the reign of Her Majesty Queen Victoria, chapter one hundred and four, intituled An Act to amend and consolidate the Acta relating to Merchant Ship- ping, or any act amending the same, as regards offences in Scotland against that act, not being offences by that act described as felonies or misdemeanors ; and as to Ireland, in manner directed by the act passed in the session holden in the fourteenth and fifteenth years of the reign of Her Majesty Queen Victoria, chapter ninety-three, intituled An Act to consolidate and amend the Acts regidating the Pro- ceedings of Petty Sessions and the Duties of Justices of the Peace out of Quarter Sessions in Ireland, or any act amend- ing the same. 66. Application of penalties. — The justices or sheriff im- posing any penalty under this act may direct the whole or any part thereof to be applied in or towards payment of the costs of the proceedings, or in or towards the rewarding the person upon whose information or at whose suit such penalty has been recovered ; and, subject to such direction, all penalties shall be paid into the receipt of Her Majesty^s exchequer in such manner as the treasury may direct, and shall be carried to and form part of the consolidated fund of the United Kingdom. 67. Evidence of proceedings at meetings. — Every Company under this act shall cause minutes of all resolutions and proceedings of general meetings of the Company, and of the directors or managers of the Company (a) in cases where there are directors or managers, to be duly entered in books to be from time to time provided for the purpose ; (b) and any such minute as aforesaid, if purporting to be signed by the chairman (c) of the meeting at which such resolutions were passed or proceedings had, or by the chairman of the next . succeeding meeting, {d) shall be received as evidence in all legal proceedings ; and until the contrary is proved, every general meeting of the Company or meeting of directors or managers in respect of the proceedings of which minutes have been so made shall be deemed to have been duly held and convened, and all resolutions passed thereat or proceedings had, to have been duly passed and had, and all appointments of directors, managers, or liquidators, shall be deemed to be valid, and all acts done 138 The Companies Act, 1862. by such directors^ (e) managers^ or liquidators {f) shall be valid, notwithstanding any defect that may afterwards be discovered in their appointments or qualifications. (a) ■ Of the directors or managers of the Company ^ — ^Where the Articles of Association of a Company do not prescribe the number of directors required to constitute a quorum, the number who usually act in conducting the buBiness of the Company will constitute a quorum : {Re Tavistock Ironioorks Company, Lysters case, Law Eep. 4 Eq. 233.) See, also, Totterdell v. The Fareham Blue Brick and Tile Company, Law Rep. 1 C. P. 674. (J) To he duly entered in hooks to he from time to time provided for the purpose.^ — It is the duty of a Company to keep exact and accurate minutes of what takes place at their general meetings, and if these minutes are not forthcoming it will be assumed, as against the Com- pany, that whatever the directors ought to have brought forward at a certain general meeting has been brought forward. See Re British Provident Life and Fire Assurance Society, Ex parte Lane, 33 L. J. Ch. 84 ; 10 Jur. N. S. 25. Westbury, L.C. Where the Articles of Association of a Company provided for the forfeiture of shares by a resolution of the directors, and entries were made in the books of the Company that the shares were forfeited and had been transferred to the Company, but there was no entry in the minutes of any resolution having been passed by the directors, it was held that the court was bound to assume that such a resolution had been passed : {Re North Hallenheagle Mining Company, Kniqhfs case, Law Rep. 2 Ch. App. 322 ; 15 L. T. N. S. 546.) (c) If purporting to he signed hy the chairman, ^-c] — Where the entry of a resolution in the minute-book of a corporation, accepting a proposal for a lease of part of the corporate property, was partiaUy erased, it was held, in the absence of evidence to the contrary, that the erasure must be presumed to have been made before the book was signed by the chairman of the meeting at which the resolution was passed : (Tlie Governor of Steevens' Hospital v. Dyas, 15 Ir. Ch. R. 405.) See Re Fresh Provision Preserving Company, Worcester''s case (W. iST. 1867, p. 62), where a Company was held bound by minutes signed by the chairman of a meeting, agreeing to give a charge on their property, on the ground that he was a duly-authorised agent within the Statute of Frauds. (d) By the chairman of the next succeeding meetinq, ^-c . — These words were absent from the corresponding section to thjs of " The Joint-Stock Companies Act, 1856" (19 & 20 Vict. c. 47, s. 40), on which see The Cornwall Gnat Consolidated Mininf/ Company, Limited, v. Bennett C6 Jnr N. S. 539). ■ f .' V o . When the minute was signed, not at the nt'xt succeeding meeting, but after proceedings takoii to wijxd-up the Company, it was held prima facie evidence: (A'r the Lanharry Hematite Iron Ore Comiianii, Ex narte Stock, 33 L. J. Ch. 7;U ; 10 Jur. N. S. 790.) ((') All acts done hy such directors, cVc]— Assnming that a resolution of a board of din-ctors signed by the chairman would be sufficient to revive iigainst a Company a debt barn-d by the Statute of Limitations it would seem that the acknowledgment will be vitiated if the resolul tion was come to by a board meeting at which the creditor was himself Legal Proceedings. 139 present in his character of director : (Loicndes v. The Gamett and J\Ioscley Gold Mining Company, 33 L. J. Oh. 418.) (f) And all acts done by xiirh. liquidator shall be valid, ^~c. — These words of the section have been held to mean no more than that all pro- ceedings taken by the liquidator before the invalidity of his appoint- ment is shown, shall be held valid ; but when his appointment has been shown to be invalid, it is not intended by this section to give validity to his proceedings, and he can neither maie a good title on the sale of the assets in a winding-up, nor enforce payment of calls from the contributories : (Re Bridport Old Brewery Company, Law Rep. 2 Ch. App. 191.) 68. Jurisdiction of vice-warden of Stannaries. — In tlie case of Companies under this act, and engaged in working mines wittin and subject to the jurisdiction of the Stannaries, the court of the vice-warden of the Stannaries (a) shall have and exercise the like jurisdiction(?)) and powers, as well on the common law as on the equity side thereof, which it now possesses by custom, usage, or statute in the case of unin- corporated Companies, but only so far as such jurisdiction ' or powers are consistent with the provisions of this act and with the constitution of Companies, as prescribed or required by this act ; and for the purpose of giving fuller effect to such jurisdiction in all actions, suits, or legal proceedings instituted in the said court, in causes or matters whereof the court has cognisance, all process issuing out of the same, and all orders, rules, demands, notices, warrants, and summonses required or authorised by the practice of the court to be served on any Company, whether registered or not registered, or any member or contributory thereof, or any officer, agent, director, manager, or servant thereof, may be served in any part of England without any special order of the vice-warden for that purpose, or by such special order may be served in any part of the United Kingdom of Great Britain and Ireland, or in the adjacent islands, parcel of the dominions of the Crown, on such terms and conditions as the court shall think fit; and all decrees, orders, and judgments of the said court made or pronounced in such causes or matters may be enforced in the same manner in which decrees, orders, and judgments of the court may now by law -be enforced, whether within or beyond the local limits of the Stannaries ; and the seal of the said court, and the signature of the registrar thereof, shall be judicially noticed by all other courts and judges ini England, and shall require no other proof than the production thereof: the registrar of^the said court, or the assistant registrar, in making sales under any decree or 140 the Compcmies Act, 1862. order of the court shall be entitled to the same privilege of selling by auction or competition without a licence, and without being liable to duty, as a judge of the Court of Chancery is entitled to in pursuance of the acts in that behalf. (a) The court of the vice-warden of the Stannaries, ^c.J — As to the jurisdiction and powers of the vice-warden of the Stannaries, see sects. 35, 83, 108, 116, and 172, of this act. (b) Shall have and exercise the like jurisdiction, ^c] — Where a Com- pany has been established for working mines withm the district of the Stannaries, the fact that some of the objects of the Company are to be carried out beyond the district does not exempt the Company from the jurisdiction of the Stannaries Court : (Re Penhak and Lomax Consoli- dated Silver Lead Mining Company, Law Rep. 2 Ch. App. 898 ; 36 L. J. Ch. 515; 16L. T. N. S. 336.) 69. Provision as to costs in actions hrought by certain limited Oompanies. — Where a limited Company is plaintiff or pursuer in any action, suit, or other legal proceeding, any judge having jurisdiction in the matter may, if it appears by any credible testimony (a) that there is reason to beUeve that if the defendant be successful in his defence the assets of the Company will be insufficient to pay his costs, require sufficient security to be given for such costs, (fc) and may stay all proceedings until such security is given. (a) If it appears by any credible testimony.} — In a suit by the liquida- tors of a limited Company, which was being wound-up, an affidavit by the defendant's sohcitor that the plaintiffs would not, if the defendant succeeded, have any assets for the payment of the defendant's costs, was held to be sufficient ground, in the absence of any evidence to the contrary, for ordering the plaintiffs to give security for costs : {The Official Liquidators of the Isle of llViy/if anjl Southampton Steam-boat Company v. Rawlins, 9 Jur. N. S.'887, Ch.) See last case for observations on Caillaud's Patent Tanning Company, Limited, v. Caillaud, 26 Beav. 427 ; 28 L. ,T. Ch. 357. See, also, The Anstralian Company v. Fleming, 4 K. & J. 407. A defendant is not justified in applying imtil there is some reason for believing that the assets will be insufficient. He must wait until he is in possession of the necessary facts: (Washoe Mining Company v. Ferguson, Law Rep. 2 Eq. 371.) (b) Any judge baring jurisdiction in Ike matter may require sufficient seeiirity to be given for such costs.]— This section makes no alteration m the principle upon which the C6urt of Chancery refuses to allow a defendant in a cross suit to call upon the plaintiff in the cross suit to give security for costs ; the principle being— not that the defendant by suing the plaintiff originally has admitted the jurisdiction, and cannot afterwards question it, but that a person who, though nominally a plain- tiff, is actually a defendant, will be allowed freely to defend himself. Where a Company registered under this act, was plaintiff in a suit to set aside a policy on which the defendant in the suit had already sued the Legal Proceedinys. 141 Company in an action at law, which was still pending, the Court refused to order the Company to give security, although at the time of the application there was a petition to wind-up the Company, under which it was afterwards wound-up : (Accidental and Marine Insurance Company V. Mercati, Law Rep. 3 Eq. 200 ; 15 L. T. N. S. 347.) A defendant sued by a Company which had called up and expended all its capital, received notice in April, by a report of the directors, that they had no funds to meet a bill which had been drawn on the Company by their manager, and that they recommended an issue of new shares with a preferential dividend. On the 4th of May notice of an extraordi- nary general meeting for the 12th was given, at which meeting resolu- tions were passed enabling the directors to borrow a large sum of money on loan. Defendant's extended time for answering expired on the 7th of May, and on the 4th he toot out a summons, whereupon he obtained on the 8th a week's further time ; and on the 15th he filed his answer. On the same day (though at what hour of the day did not appear), he received notice from the directors that the attempt to raise the money had failed. Wood, V.C., held, that the defendant had not by putting in his answer, waived his right of calling upon the plaintiff Company to give security for costs under this section. A. filed a bill against B., the registered holder of 1000 shares in a Company, and against the Com- pany and their secretary, for specific performance of an alleged contract by B. to transfer the shares to A., and for an injunction to restrain the Company from transferring the shares to any one else than to A. The Company thereupon filed a biU against A. and B., praying for declara- tions that the alleged contract was fraudulent and void, and that A. and B. were trustees of the shares for the Company. It was held that the second suit was not so strictly in the nature of a cross suit to the first, that A. was deprived of the right of calling upon the Company to give security for costs : ( Washoe Mining Company v. Ferguson, Law Rep. 2 Eq. 371 ; 14 L. T. N. Sr 590.) It has also been held on an application under this section (varying the order of Wood, V.C.), that the security for costs given by a limited Company is not confined to lOOZ., but must be for an amount equal to the probable amount of costs payable : (Imperial Bank of China, India, and Japan v. Bank of Hindustan, China, and Japan, Law Rep. 1 Ch. App. 487 ; 35 L. J. Ch. 678 ; 12 Jur. N. S. 493 ; 14 L. T. N. S. 611.) This section applies to the case of a Company in course of hquida- tion, suing by its ofiicial Uqiddator, as well as to the case of a Company suing in the ordinary way : (Freehold Land and Brickmaking Company v. Spargo, W. N. 1868, p. 94.) 70. Declaration in action against members. — In any action or suit (a) brought by the Company against any member to recoyer any call or other moneys due from such member in his character of member, it shall not be necessary to set forth the special matter, but it shall be sufficient to allege (6) that the defendant is a member of the Company, and is indebted to the Company in respect of a call made or other moneys due whereby an action or suit hath accrued to the Company. (a) In any action or suit, ^c] — The power to make calls, and the con- ditions to be observed in enforcing them, depend upon the Articles of 142 The Gompanies Act, 1862. Association, if the Clonipany have any. (See scots. 14, 1.5, nupra.) If the Company have none, or if they do not exchide the regulations con- tained in Table A. (see Schedule 1, Table A., clauses 4 — 7, infra), these regulations apply to the Company. By sect. 16 of tliis act calls payable by a member are specialty debts ; and an action for their recovery is not, therefore, barred by the lapse of less than twenty years : {Cork and Bandon Railway Company v. Goode, 13 C. B. 826.) As to an action brought for a call after the Company had passed a resolution to change its name, but before the change of name had been registered, see Shackleford, Ford, and Co. v. Dangerjield, Ih. v. Owen (Law Rep. 3 C. P. 407), p. 13, ante. Where a Company brought an action for a call against a shareholder who was resident in India when he had applied for shares and received notice of their allotment, and who was still resident there when the action was brought, it was held that the case was within sects. 18 and 19 of "The Common Law Procedure Act, 1852," on the ground that the whole cause of action arose within the jurisdiction of the coiu't, except the breach which had no locality: {Oriental Hotel Company, Limited, v. Pelly, W. N. 1868, p. 256.) For a form of declaration in an action for calls, see infra. In an action for calls it is only necessary to show three things, viz. — first, that the calls sued for were made in point of fact ; secondly, that the defendant is or was a shareholder when the caU was made ; thirdly, that he has had proper notice of the making of the call. Evidence of the making of a call is given by proving the resolution by which it was made ; this may be done either by the testimony of the Company's secretary or some other person having actual knowledge of the fact, or by the Company's minute-books. See sect. 67, supra. As to the number of directors constituting a quorum, see Re Tavistock Ironworks Company, Lyster's case (Law Rep. 4 Eq. 233), and Tlie Iron Ship-Coating Company v. Blunt (Law Rep. 3 C. P. 484), infra. Where an action was brought on a call made by certain subscribers of the Memorandum of Association of a Company, and it appeared that the persons who made the call were not such a quorum of the subscribers of the memorandum as the Company's articles requiied, the defendant was held not liable : {The Howheach Conl Company v. Ttw/iie 5 H & N 151 ; 29 L. J. Ex. 137 ; 6 Jur. N. S. 275 ; 2 L. T. N. S. 187.) The appointment, &c., of directoi-s de facto who have made the calls cannot afterwards be questioned. See sect. 67, supra. The Articles of Association of a Company provided that any director who should accept or hold any other office under the Company than that of manager, should thereupon be disqualified from being and should cease to be a director. A. had been appointed secretary at a salary, and whilst secretary he was elected a director, and appointed upon a committee to exercise certain powers of the directors. From the time of his election he received salary as a committeeman, but ceased to receive salary as secretary, though he continued to perform all the duties of the office. It was held that A. did not hold an " office" under the Company so as to disqualify him from being party as a director to the making of a call: {The Iron Ship-Coating Company, Limited v Blant, Law Rep. 3 C. P. 484. Evidence that the defendant is or was a shareholder is usually given by the production of the Company's register, as to which see sects. 25 nnn R7. sunvn. Legal Proceedhc/s. 143 But a person who has never become a shareholder in the proper sense of the word, and who is not estopped by his own conduct from denying that he is a shareholder, is not hable to calls as a shareholder, although he may have been registered as one : (Bloxam v. Metropolitan Cah Com- pany, 4 N. R. 51.) Evidence that the defendant received due notice of the makmg ot the caJl must be given by showing that such notice as he was entitled to receive either actually reached him, or was so sent to him as to have probably reached him. This will be sufficient, in the absence of evidence, that what was so sent him did not reach him. But a shareholder is not indebted on account of a call until due notice of such call and of the time and place for payment of it shall have been given, in accordance with the provisions of the Articles of Association : {Rudolph V. The Inns of Court Hotel Company, 8 L. T. N. S. 551, Q.B.) It has been held that where the Articles of Association of a Company require a notice of call to be repeated within a certain time, a notice that the Company will require money at that time, but not a repetition of the former notice, is not sufficient : (The Chuhwa Tea Company of Assam v. Barry, 15 L. T. N. S. 449. Byles, J.) As to notice of call sent to a shareholder after the Company had passed a resolution to change its name, but before registration of the new name, see Shackkford, Ford, and Co. v. Dangerjkld, lb. v. Owen (Law Rep. 3 C. P. 407), p. 13, ante. Defence to Actions for Calls. In an action by a railway Company against a shareholder for calls, it was held that the defendant could not claim to inspect the minute books of the Company and of the directors' meetings, " particu- larly with respect to the calls " sued upon, for the purpose of framing his plea; and a rule nisi ioi such inspection was refused : (The Bir- mingham, Bristol, and Thames Junction Railway Company v. White, 1 Q. B. 282.) In an action for calls the defendant alleged that he was not a member of the Company, that the Company was not properly formed, and that he was exempted by the terms of the articles from any further claim. It was held that it was not necessary to have signed the Memorandum of Asso- ciation, nor to have paid calls, to make a registered applicant a member. , That where the prospectus proposed to incorporate a previously existing Company, and the articles made an arrangement for buying out of the funds of the new Company the shares in the old one at their full ,value, the variance was not sufficient to invalidate the Company. And that an equitable plea, to the effect that no further calls had been contem- plated, could not be considered to exempt the defendant from claim : (Accidental and Marine Insurance Corporation v. Davis, 15 L. T. N S 182, C. P.) To an action for calls on shares in a joint-stock Company incor- porated under the 19 & 20 Vict. c. 97, it was held to be no answer, that the defendant became a shareholder upon the faith that the capital of the Company would be of the amount stated in the Memorandum of Association, and that only a small, insignificant, and insufficient portion thereof was subscribed : (The Ornamental Pyrographic Woodwork Com- pany V. Brown, 2 H. & C. 63.) Compare with this the case of Tlie Howheach Coal Company v. Teaque, 5 H. & N. 151 ; 29 L. J. Ex. 137 ; 2 L. T. N. S. 187. Where Articles of Association provided that in case the whole of the 144 The Companies Ad, 1862. shares into which the nominal capital was rlivided should not be sub- scribed for or allotted, the registered members of the Company for the time being should, if the directors should by resolution so declare, be and continue associated for the objects thereof, and the regulations of the Company should be in force, &c, it was held that untO the whole of the capital was subscribed for or allotted, or the directors had passed a formal resolution for continuing the Company, the directors had no power to make a call, and a call so made could not be recovered against a shareholder : (North Staffbnl Steel, Iron, ami Coal Company (Bnrslem), Limited, v. Ward, Law Rep. 3 Ex. 172.) To an action by a Company against a shareholder for calls, the defen- dant pleaded that he was induced to become a shareholder by the fraud of the plaintiffs ; that he had never recognised, since notice of the fraud, any rights or liabilities in him, as such shareholder, nor received any benefit from his shares, and that within a reasonable time after notice of the fraud he had repudiated the shares, and given notice to the plaintiffs of his repudiation. On demurrer this was held a good plea : (The Bwlch-y-Phom Lead Mining Company v. Baynea, Law Rep. 2 Ex. 324 ; 36 L. J. 183, Ex. ; 16 L. T. N. S. 597.) See, also. The Glamorganshire Iron and Coal Compani/ v. Irvine, 4 F. & F. 947 ; 15 L. T. N. S. r>2. To an action commenced by a joint-stock Company, and continued by the official manager under the winding-up acts, for calls on shares held by the defendant, he pleaded that he was induced to become the holder of the shares by fraud, and within a reasonable time after he had notice of the fraud, and before he received any benefit from the contract, he repudiated it. It was held that the plaintiff was entitled to par- ticulars of the acts of fraud and repudiation: (M'CreiqhtY. Stevens, 1 H. & C. 454.) Where a Company passed a resolution authorising the directors, " if they should think fit," to accept transfers from such shareholders as should give notice of their willingness to surrender their shares, it was held that this was not binding on the Company as an agreement to accept such surrenders ; and it was not a good defence to an action against a shareholder for a call that he had, previous to the making of the call, given such notice of surrender of his shares, and that it had not been accepted : (Shacldeford, Ford, and Co. v. Danqerfield, Law Rep. 3 C. P. 407.) J J ^ v A shareholder in a Company under this act, who has become bankrupt and received his discharge, but retains his shares, cannot plead his bankruptcy as a defence in an action for subsequent calls, whether made while the Company is in operation, or when it is being wound- up, inasmuch as the covenant of the shareholder on becoming a member under sect. 16 of this act to pay the calls on his shares is not " a contract to pay sums of money yearly, or otherwise," within sect. 154, of the Bankruptcy Act, 1861, so as to make the present value of their liability provable imder that section; and sect. 75 of this act, which makes it "lawful in the case of the bankruptcy ■ of any contributory to prove against his estate the estimated value of his habihty to futiu-e calls," only apphes where the bankruptcy of tlie contributory is contemporaneous with the winding-up of the Company : (Martin's Patent Anchor Company, Limited, v. Morton, The Same v. Hewelt, Law Rep. 3 Q. B. 306.) See remarks on this case by the Master of the Rolls in Re General hstates Company, Uastie s case. Law Rep. 7 Ea. 3 Legal Proceedings. 145 For pleas that the Company was not duly registered, see Agricultural Cattle Insurance Company v. Fitzgerald (16 Q. B. 432), London Monetary Advance Company v. Smith (3 H. & N. 543 ; 27 L. J. Ex. 479), and London and Provincial Provident Society v. Ashton (12 C. B. N. S. 709, 728). See, also, Liverpool Borough Bank v. Mellor (3 H. & N. 551 ; 28 L. J. Ex. 78.) An agreement that the calls payable by a tradesman who is a share- holder in a Company shall not be payable in cash, but only by set-off for goods supplied by him, is in general ultra vires : (Re Richmond Hill Hotel Company, PellatVs case, Law Rep. 2 Ch. App. 527.) See Re Masons'' Hall Tavern Company, Habershon's case (Law Rep. 6 Eq. 286), as to a set-off of a debt payable infuturo against a call. See, also, the remarks of the Master of the Rolls in Calisher^s case (Re Breech-Loading Armoury Company, Law Rep. 5 Eq. 214), doubting that a Company has power to contract with one of its members to give him a right to set off debts due from the Company against calls. By " The Companies Act, 1867," s. 24, a Company may make special arrangements with their shareholders to have some of their shares fully paid up and others not. Sect. 25 of the same act provides that every share in a Company shall be deemed to have been issued and to be held subject, to the payment of the whole amount thereof in cash, unless the same shall have been other- wise determined by a contract in writing. As to interest payable on calls in arrear, under the Articles of Asso- ciation of a Company, see Re Blakely Ordnance Company, Stocken's case (Law Rep. 5 Eq. 6), p. 24, ante. A Company was formed for mining purposes ; the prospectus referred to the memorandum and articles, and described in favourable terms a m i ne for the purchase of which a contract had been entered into. This miae was afterwards found to be worthless, and the directors rescinded the contract, and agreed to purchase another. Wood, V.C., held that a shareholder who had subscribed on the faith of the prospectus was entitled to an injunction against an action for calls, although the directors had been themselves deceived, and had been guilty of no wilful fraud : (Smith v. Reese River Company, Law Rep. 2 Eq. 264 ; 12 Jur. N. S. 616 ; 14 L. T. N. S. 283.) See, also. Philips v. Ottoman Association, W. N. 1867, p. 107. (b) It shall be sufficient to allege.'] — The following form of declaration may be used in an action for calls, or other moneys due to a Company registered under this act : The Company, Limited, being a Company completely regis- tered according to "The Companies Act, 1862," by their attorney sue For that the defendant is a member of the said Company and a holder of shares in the said Company, and is as such member and share- holder indebted to the plaintiffs m£ in respect of a call [or calls] oi £ [each], made on each of the said shares [and also in respect of other moneys due and payable by the defendant to the plaintiffs for interest on the said call [or calls] so due from the defendant to the plaintiffs, and forborne at interest by the plaintiffs to the defendant at his request, or, and also in respect of other moneys due and payable by the defendant to the plaintiffs for shares in the said Company, allotted by them to the defendant at his request, or, as the case may be, stating the cause in respect of which the other moneys are duel. And the defendant has not paid the same, whereby an action has accrued to the said Company. L 146 The Companies Act, 1862. ALTERATION OF POEMS. 71. Board of Trade may alter forms in schedules. — The forms set forth in the second schedule hereto, or forms as near thereto as circumstances admit, shall be used in all matters to which such forms refer ; the Board of Trade may from time to time(a.) make such alterations in the tables and forms contained in the first schedule hereto so that it does not increase the amount of fees payable to the registrar in the said schedule mentioned, and in the forms in the second schedule, or make such additions to the last-mentioned forms, as it deems requisite : any such table or form, when altered, shall be published in the London Gazette, and upon such publication being made such table or form shall have the same force as if it were included in the schedule to this act, but no alteration made by the Board of Trade in the table marked A. contained in the first schedule shall afiect any Company registered prior to the date of such alteration, or repeal, as respects such Company, any portion of such table. (a) The Board of Trade may from time to time, §-c.] — The Board of Trade have not acted upon the powers given by this section. ARBITRATIONS. 72. Power for Companies to refer matters to arbitration. — ^Any Company under this act may from time to time, by writing under its common seal, agree to refer and may refer to arbitration, in accordance with " The Railway Com- panies Arbitration Act, 1859," (a) any existing or future difierence, question, or other matter whatsoever in dispute between itself and any other Company or person, and the Companies parties to the arbitration may delegate to the person or persons to whom the reference is made power to settle any terms or to determine any matter capable of being lawfully settled or determined by the Companies themselves, or by the directors or other managing body of such Companies. (a) "The Eaihoay Companies Arhitration Act, 1859."]— This act (22 & 23 Vict. c. 59) will be found in externa, pout. 73. Provisions of 22 f 23 Vict. c. 69 to apphj.—All the provisions of "The Railway Companies Arbitration Act, 1859," (a) shall be deemed to apply to arbitrations between Companies and persons in pursuance of this act ; and in Winding-'up — Preliminary. 147 tlie construction of sucli provisions " the Companies" shall be deemed to include Companies authorised by this act to refer disputes to arbitration. (a) " The Railway Compcudes Arhitratiox, Act, 1859." — ^For thia act see post. PAET IV. WINDING-UP OF COMPANIES AND ASSOCIATIONS UNDER THIS ACT. PEELIMINAET. 74. Meaning of contributory. — The term " contribu- tory" (a.) shall liiean every person liable to contribute to the assets of a Company(6) under this act, in the event of the same being wound-up : it shall, also, in all proceedings for determining the persons who are to be deemed con- tributories, and in all proceedings prior to the final deter- mination of such persons, include any person alleged to be a contributory. (a) The term "contributory.^'''] — This term seems to have been first introdttced by 11 & 12 Vict. c. 45, !i. 3. (6) Liable to contribute to the assets of a Company, ^c] — Contribution to the assets must be made to an amount sufficient to satisfy the debts and liabilities of the Company, the costs, charges, and expenses of ■winding it up, and to adjust the rights of the contributories amongst themselves : (sects. 38, 102.) The persons to make this contribution are termed contributories, and are to be distinguished (sect. 99) into — 1. Persons who are contributories in their own right : 2. Persons who are contributories as being representatives of, or as being liable to, the debts of others. Contributories in their own right may be divided into — (a) Present members, i. e., persons who at the commencement of the winding-up are members within the meaning of sect. 23, supra : (b) Past members who have not ceased to be members for one year previous to the commencement of the winding-up. As to the respective liabilities of present and past members, see sect. 38, supra ; and as to the grounds on which they may repuiate their UabUity, see sects. 22, 23, 35, supra, and sect. 98, infra. Representative contributories are — (a) The personal representatives, heirs, and devisees of deceased con- tributories, as to whom see sect. 76, infra : (b) The assignees of bankrupt contributories, as to whom see sect. 77, infra : (c) The husbands of female contributories, as to whom see sect. 78. See, also, as to representative contributories, sects. 99, 105, and 106, infra. l2 The Companies Act, 1862. bhough the holders of fully paid-up shares are not liable to contri- to the assets of a Company, yet they are contributories within the ling of the act, so as to be able to present a petition for winding-up r sect. 82, infra (Re National Savinc/s Bank Association, Law Kep. . App. 647) : or to require that calls should be made in a winding-up e partly paid-up shareholders, for the purpose of adjusting the rights een themselves and the latter (Re Anglesea Colliery Company, Law 1 Ch. App. 555) ; but the court will not permit a fully paid-up iholder to be put on the list of contributories on the ground that as indebted to the Company : (Re Marlborough Club Company, Law 5 Eq. 365.) 5. Nature of liability of contributory. — The liability of person to contribute to the assets of a Company under actj in the event of the same being wound-up^ shall be ned to create a debt (a) (in England and Ireland of the ire of a specialty) accruing due from such person at the 3 when his liability commenced^ (&) but payable at the 3 or respective times when calls are made as hereinafter itioned for enforcing such liability ; and it shall be lawful he case of the bankruptcy of any contributory to prove inst his estate the estimated value of his liabihty to future 3 as well as calls already made, (c) ) Sliallbe deemed to create a debt.'] — This section makes, a call in a ling-up a debt; and it is payable to the liqvudator, for, under 95, infra, he is the person to take proceedings to recover it. ;ct. 102, infra, provides for the making of caUs where the winding- 3 compulsory ; sect. 133, infra, where it is voluntary ; and sect. 151, J, where it is under the supervision of the court. notice of a call on a contributory under a voluntary winding-up 3r the supervision of the court stated, that if the call was not paid le time appointed, interest would be charged thereon at the rate of r cent. The articles provided for interest on calls. It was held that notice that interest would be charged came within the 28th section 6 4 Will. 4, c. 42 ; and the coui-t ordered the contributory to pay call with interest thereon up to the date of payment: (Re Overend, ney, and Co., Ex parte Lintott, Law Rep. 4Eq. 184 : 86 L. J. 510, Ch. : :.. T. N. S. 228.) his decision was confirmed by the Court of Appeal in another case, hich the payment of interest, up to the date of the actual payment of call, was held not to have been stopped by payment of the amount le call into court, to await the decision of a question raised as to the lity of the shareholders : (Re Oivrcnd, Giirncy, and Co., Barroio's , Law Rep. 3 Ch. App. 784.) i) Accruing due from such person at the time when his liability com- -ed, ^r.]— A Company, formed imder a deed of settlement, dated ■ember, 1851, and registered under the Act of the 7 & 8 Vict. c. 110, , in December, 1862, ordered to be wound-up under the provisions of act, unilor \Yhich the Company was registered in January, 1863. official liquidator apphed for an adjudication in bankruptcy against a non-trndcr and shareholder, who joined the Company at its com- Winding-lip — Preliminary. 1 mencement, and executed the deed of settlement, in respect of a i made upon him in August, 1863. It was held that the call was no debt contracted within the 90th section of " The Bankruptcy Act, 186 as under this section the commencement of the liability must be deen to relate back to the date of the deed of settlement, and not to the d of the call : (& parte Camoell, Re Vaughan, 10 Jur. N. 8. 480, Ch., appeal; 10 L. T. N. S. 316.) See, also, Williams v. Harding, Law Rep. 1 H. L. 9. (c) The estimated value of Ms liaHlity to future calls as well as a already made.'] — It has been held that this provision only applies wh the bankruptcy of the contributory is contemporaneous with the windi: up of the Company, and has no appUcatiou when the bankruptcy been wound-up, the bankrupt discharged, and the assets administe before the winding-up of the Company ; therefore the previous ba: ruptcy of a shareholder is not a good defence to an action for c in a winding-up : (Martinis Patent Anchor Company v. Morton, Law B 3 Q. B. 306.) Blackburn, J., in his judgment in this case, observed : "It would a monstrous injustice that where a man remaining a shareholder, assignees not taking his shares, he should yet be aUowed to get ric his liability to pay calls on the ground that he has been a bankri several years before." The Master of the Rolls, in his judgment in Hastie's case, Re Gem Estates Company (Law Rep. 7 Eq. 3), commented on the decision in last case, and held that where a member of a Company has becc bankrupt and obtained his discharge, and his estate has been fi administered by the assignee, he remains liable, in the event of Company being subsequently wound-up, to be made a contributorj respect of any of his shares not fuUy paid up, and is not exonera under this section or sect. 154 of " The Bankruptcy Act, 1861," un the assignee has been substituted for him under sect. 77, infra, wl cannot be done without the assignee's consent. After a bankrupt has been settled upon the list of contributories, Kquidators may, in pursuance of this section, prove against his estate the estimated value of future calls in respect of the shares held by 1 in the Company which is being wound-up, but the court will rese liberty to the assignees to institute an inquiry and call upon the lie dators to show in what way the estimate was arrived at : (^Ex pi Gibbons, Re Clarke, 11 L. T. N. S. 752, Bank.) Deeds of Arrangement. A short time before the winding-up of a Company one of the shi holders executed a deed of arrangement with his creditors under " ' Bankruptcy Act, 1861," sect. 192. It was not in the form givei Schedule D. of that act, and contained no cessio bonorum ; it was i therefore, one of those deeds as to which the act provides that the and. practice of bankruptcy shall apply, but a special bargain betw the debtor and his creditors with covenants by the creditors that t would not enforce payment of their debts within two years, and by debtor that he would pay in full at the expiration of that period. ' debtor was at that time liable for two calls made by the Company, bu did not include them in the schedule sent in to the registrar, and anpt call was subsequently made by the official liquidator. It was 1 (affirming the decision of Wood, V.C, Law Rep. 4 Eq. 566), that omission of the debts from the schedule was not a ground on which The Companies Act, 1862. of Chancery could hold the deed to be invalid ; that there being jquality as between creditors, and no fraud, the court would not of the reasonableness of the arrangement as between the debtor is creditors ; and that, so far as related to the calls that were due date of the deed, the oflBcial liquidator was bound by the deed. was held (reversing the decision of Wood, V.C), that, having 1 to the frame and provisions of the deed, which only applied to actually due, the official Uqnidator might proceed against the lolder for the subsequent calls : {Re Richmond Hill Hotel Company, Tie King, Law Rep. 3 Ch. App. 10.) ontributory of a Company in course of winding-up who executes i of arrangement must proceed as if the official liquidator had in and asked to have the liability estimated, and must enter him reditor for the estimated amount of all future caDs. Company in course of winding-up was entered as a creditor only call of bl. per share, which had been made. The contributory iable to be called on for S5i. per share more, and calls to that it were afterwards made. If the Company who were entered in !ed, as non-assenting, had been entered as creditors for this whole it, the non-assenting creditors would have been the majority in The debtor subsequently alleged a set-off against the calls, . he had not stated on the application for registration. It was that the Company ought to have been entered as a creditor ie estimated amount of the future calls, as well as the calls ly made, being the amount provable in bankruptcy under this n, that the deed therefore was not assented to by the majority •ed by "The Bankruptcy Act, 1861," s. 192 ; and was not binding dissentient creditor : (Ex parte Pickering, lie Pickering, Law Rep. App. 58.) Company in course of liqmdation was allowed to set-off against iccepted by them, and in the hands of a contributory, calls due by sntributory who had executed an inspectorship-deed, the effect of . was to import the mutual credit clause of " The Bankruptcy Act, ' s. 171 r (Re Anglo-Greek Steam Navigation and Trading Company, 'Mi and Haggard's Claim, Law Rep. 4 Ch. App. 174.) :, also. Re Duckworth, Law Rep. 2 Ch. App. 578. . Oontrihutories in case of death. — If any contributory eitter before or after he bas been placed on the list of nibutories hereinafter mentioned, his personal repre- itives,(a) heirs, and devisees shall be liable in a due se of administration to contribute to the assets of the pany(&) in discharge of the liability of such deceased ributory, and such personal representatives, heirs, and sees shall be deemed to be contributories accordingly. (*) His personal representatives, ^-c] — ^The directors of a joint-stock jany offered their reserved shares to shareholders and the executors tceased shareholders, in proportion to the amount of their original s, it was held (reversing tlie decision of Kindersley, V. C), that itors who had no power to invest their testator's money in such 8, and who accepted shares, must be put upon the list of contribu- in their own right, and not in their representative character. Winding-up — Prelimina/ry. 151 The fact that the new shares were oifered to, and accepted by, the executors in their representative character, and that the directors had no power to offer the shares to them in any other character, did not exempt the executors from being personally liable as between them and the other contributories : (Re Leeds Banking Company, Fearnside's case and Dobson^s case, Law liep. 1 Ch. App. 231 : 12 Jur. N. S. 60 ; 13 L. T. N. S. 694.) See, also. Re Leeds BanTdny Company, Mallorie^s case (Law Rep. 2 Ch. App; 181 ; 36 L. J. Ch. 141 ; 15 L. T. N. S. 468), p. 85, ante, and the observations of the Lords Justices distinguishing it from Dohson's case. See, ako, The Herefordshire Banking Company, Bulmer\i case, 33 Beav. 435. (6) Devisees shall he liable to contribute to the assets of the Company, §■0.] — Notwithstanding the lapse of several years since the death of a testator, the real estate in the hands of devisees was held liable for the payment of calls : (Turquand v. Kirby, Law Rep. 4 Eq. 123 : 36 L. J. Ch. 570.) (c) Shall be deemed to be contributories accordingly.'} — ^But only to the extent of the assets, in the case of personal representatives ; and in that of heirs and devisees, to the extent of the interest they taike from the deceased member. 77. Contributories in ease of hamltrwptcy . — If any con- tributory becomes bankrupt, either before or after he has been placed on the list of contributorieSj his assignees shall be deemed to represent such bankrupt (a) for all the purposes of the winding-up, and shall be deemed to be contributories accordingly, and may be called upon to admit to proof against the estate of such bankrupt, (&) -or otherwise to allow to be paid out of his assets in due course of law, any moneys due from such bankrupt in respect of his liabiUty to contribute to the assets of the Company being wound-up ; and for the purposes of this section any person who may have taken the benefit of any act for the relief of insolvent debtors before the eleventh day of October one thousand eight hundred and sixty-one shall be deemed to have become bankrupt. (a) His assignees shall be deemed to represent such bankrupt."] — It has been held that the assignees, if they do not elect to take the shares of the bankrupt, cannot be compelled to do so, or be made liable as contributories : (Re General Estates Company, Hastie's case, Law Rep. 7 Eq. 3.) (6) To admit to proof against the estate of such bankrupt, Sj-c.} — See sect. 75, supra, and the cases under it. 78. Contributories in case of mdrriage. — If any female contributory marries, (a) either before or after she has been placed on th-e list of contributories, her husband shall during The Gqmpanies Act, 1862. jontinuance of tlie marriage be liable to contribute to bssets of tbe Company the same sum as she would have liable to contribute if she had not married^ and he be deemed to be a contributory accordingly. (&) If any female contrihutonj marries.'} — Tliis section does not affect ghts or liabilities of a married woman wlio has separate estate, and is nothing in the nature of a Joint-Stock Company, in the ce of special provisions on the subject in their regulations, to nt a married woman being a shareholder in her own right, so as id her separate estate. lere, therefore, a married woman, possessed of separate estate, con- id on her own behalf, to take shares in her own name in a Company L was afterwards wound-up, the court, being of opinion that such let was entered into upon the credit of her separate estate, and the regulations of the Company did not exclude married women being shareholders, so as to bind their separate estate, placed her B Ust of contributories in her own right, so as to biad her separate : : (Be Leecte Banking Company, Mrs. Mattheioman's case. Law Rep. 781 ; 36 L. J. Ch. 90.) , also, Butler y. Cumpston (38 L. J. Ch. 35 ; W. N. 1868, p. 248), as rustee having a right to be indemnified against calls out of the ite estate of a married woman, for whom he had taken shares in vn name. He shall be deemed to he a contributory accordingly .^ — See Luard's Re Nortlmmberland and Durham District Banking Company (1 De & J. 538), where, on marriage, shares belonging to the wife were d to her separate use ; but no notice of the marriage was given to Company, and the shares remained in her former name. It was on appeal, that the husband was a contributory, and liable for the WINDING-UP BY COUET. . Owcumstances under which Company may be wound-up mrt. — ^A Company under this act(a) may be wound-up le court (&) as hereinafter defined^ (c) under the foUow- lircumstances ; (that is to say,) .) Whenever the Company has passed a special reso- lution (t?) requiring the Company to be wound-up by the court : .) Whenever the Company does not commence its busi- ness within a year(e) from its incorporation, or suspends its business for the space of a whole year : ,) Whenever the members are reduced in number to less than seven : (_/) .) Whenever the Company is unable to pay its debts -.{g) ) Whenever the court is of opinion that it is just and equitable (/(,) that the Company should be wound-up. A Company iinda- thu! act, s^c-.]— "The Industrial and Provident Winding-up by Court. 153 Societies Act, 1862," s. 17, enacts that every society registered under that act may be wound-up by the court or voluntarily, in the same manner as any Company may be wound-up under any act for ■winding- up Companies. Consequently, any such society may be wound-up under this act. And where a petition was presented to have a friendly and provident society which had done no business since 1844 wound-up under this act, it was held that the society came within the terms of the act : (Re Alfreton District Friendly and Provident Society, 7 L. T. N. S. 817, Ch.) See, also. Parts VI. and "VTII. of this act, the former referring to Companies registered under "The Repealed Joint-Stock Companies Acts," the latter to unregistered Companies. (5) May he wound-up by the court, Sfc] — It is the general right of a creditor to have a Company wound-up by the court, although other creditors to a much larger amount desire a voluntary winding-up, and a meeting of the shareholders has been called to pass a resolution in favour of a voluntary winding-up : (Re General Rolling Stock Company, 11 Jur. ISr. S. 231, Ch ; 12 L. T. N. S. 9.) But see the cases under the next section, and on the voluntary vfiuding-up of Companies, sect. 129, injra. (c) As hereinajter defined.'} — For a definition of " the court," see sect. 81, infra. (d) Whenever the Company has passed a special resolution, SfC.} — ^The manner of passing a special resolution is prescribed by sect 51, supra. (e) Whenever the Company does not commence its business within a year, Sj-c.'] — ^In the case of lie Metropolitan Railway Warehousing Company (W. N. 1867, p. 94), a Company was ordered to be wound-up on this ground, contrary to the wish of the great majority of the shareholders, and it was considered, that the mere depositing of a sum of money with bankers could not be treated as a commencement of business. (/) Le.is than seven.] — ^As to the liabilities incurred by those who carry on the business of a Company with less than seven members, see sect. 48, supra. (g) Whenever the Company is unable to pay its debis.] — When a Com- pany shaU be deemed unable to pay its debts, is explained by the next section. Where the creditors of a bank proved their debt, the refusal to pay, and the stoppage of the bank, as all the formalities prescribed by this act (see the next section) had been observed, an order to wind-up was granted as a matter of right: (Re Consolidated Bank, W. N. 1866, p. 232.) (h) Whenever the court is of opinion that it is just and equitable, §-c.] — The words " just and equitable that the Company should be wound-up," used here, are to be considered as referring to matters ejusdem generis with the subject matters stated in the four prior rules. If it be established that a Company never had any proper founda- tion, and that it was a mere fraud or "bubble Company," the court win order it to be wound-up. But, the misconduct of the directors and manager of a Company, though it may be such as to render them liable, if a suit were instituted against them by the shareholders, is not a ground on which the court The Companies Act, 1862. consider it " just and equitable " to wind-up the Company under section, where there is no evidence that their mismanagement has luced insolvency, or that the Company is a mere " bubble Company," where there is a reasonable prospect that, under proper manage- t, it may be successfully carried on : (Re Anglo-Greek Steam Naviga- and Trading Company, 35 Beav. 399 ; Law Kep. 2 Eq. 1 ; 12 Jur. >. 828.) v Re Agriculturist Cattle Insurance Company (1 Mac. & G. 170), where court refused to wind-up an insurance Company, which was carry- on a business of a profitable character, although a considerable ber of shareholders had retired from it, Cottenham, L. C. who ied the case, observed with respect to a clause in the Winding-up 1848 (similar to that above), " This clause was no doubt thus led in order to include all cases not before mentioned ; but of course mnot mean that it should be interpreted otherwise than in reference latters ejusdem generis, as those in the previous clauses. There must omething in the management and conduct of the Company which re the court that it should be no longer allowed to continue, and the concern ought to be wound-up." he articles of a Company adopted an agreement, whereby 240 paid- hares were to be delivered to the manager "for his own use, and rder to supply him with the means for commencing the duties of agement, and for discharging obligations incurred by him in pro- ing the formation of the Company." The petitioner, in reply to an irtisement for a secretary, announcing that he would be required to st 240?., applied for and obtained the appointment, and paid 240i. shares in the Company. He then discovered a second agreement, reby the manager had agreed, as soon as he should receive the 240 es, to give to each of the four promoters, who had signed the first lement on behalf of the Company, and who were named directors in articles, forty shares, that being the number of shares necessary for qualification of directors. Only one promoter and director, out of seven promoters (five of whom were named directors) who signed memorandum, six of them for forty shares, and one for ten, had . anything in respect of his shares, and there were only six other eholders. Upon petition for winding-up the Company, although ented within three months of the date of incorporation, the com^, n the above facts, made the order : (Be London and County Coal \pany. Law Rep. 3 Eq. 355.) tooi, V.C., in his judgment, observed : " I think it there had been a ! fide intention on the part of the directors to carry on business in a )er manner, this is a case in which I should not have made an order winding-up, on account of the smallness of the Company, there g only a few members, who, in the ordinary course of things, might 3 settled their affairs in a more convenient and less expensive ner." limited Company was established for the acquisition and carrying Df hotels, within twenty miles of the General Post Oflfice. Of the ) shares into which the capital Wiis divided, 3533 had been allotted, only part of the amount due upon them had been called up, the iue due on the allotted shares being sufficient to satisfy the debts of Company, up to the date of the present proceedings, and to leave irge balance available for the prosecution of the business. The ipany had never possessed more than one hotel ; and this having 1 worked at a loss since its acquisitioii by the Company, some of the Winding-up by Court. 155 shareholders desired to have the Company wound-up. A general meet- ing decided in favour of going on by a very large majority, made up to a considerable extent, but not wholly, of votes in respect of fully paid- up shares which had been allotted to the vendor of the site ; but, on the petition of one of the minority, a winding-up order was made by Vice- Chancellor Malins. The Vice- Chancellor's order was reversed, on appeal, by Lord Justice Cairns, who held that the power given to the court by this section to wind-up a limited Company, whenever it is of opinion that it is " just and equitable " so to do, is confined to cases ejusdem generis with those mentioned in the previous heads of the sec- tion ; that is, to what would amount to insolvency, or other incapability of continuing the business of the Company. Where, then, the capital of the Company is not exhausted, and no new state of things has arisen, as compared with what existed at the date of the formation of the Com- pany, the fact that a loss has been hitherto, or even is Ukely to be hereafter, sustained in the operations of the Company, is not an adequate reason for the exercise of the jurisdiction under this section, and the court has not in time past suffered, and will not suffer, its winding- up process to be used as a means of evoking a judicial decision that the business wiU, or wiU not, continue to be an unprofitable mode of employing the capital of the Company. But his Lordship expressed an opinion that if it were shown to the court that the whole substratum of the partnership, and the whole of the business which the Company was incorporated to carry on, had become impossible, the court might, either under the act or on general principles, order the Company to be wound- up : (Re Suburban Hotel Company, Law Rep. 2 Ch. App. 787 ; 36 L. J. Ch. 710 ; 17 L. T. N. S. 22.) See, also. Re Hop and Malt Exchange Company, W. N. 1866, p. 222. Where it appears just and equitable, the court under this section has power to order a Company to be wound-up, notwithstanding such winding-up is contrary to the wishes of a majority of the shareholders : (Re British Oil and Cannel Company, 15 L. T. N. S. 601, Ch.) See, also, Re Factage Parisien, 13 W. K. 214, 330 ; and Re West Surrey Tanning Company, Law Kep. 2 Eq. 737. But the court will not, in the absence of fraud, make an order under this clause for a compulsory winding-up on the petition of shareholders, against the wish of a large majority of the creditors and contributories, but will leave the Company to exercise their judgment in determining on a voluntary winding-up : {Re London Flour Company, W. N. 1868, p. 84 ; 16 W. R. 552.) See sects. 82 and 86, infra, for decisions of the court on winding-up petitions. 80. Company when deemed unable to pay its debts. — A Company under tMs act shall be deemed to be unable to pay its debts — (1.) Whenever a creditor, by assignment or otherwise, to whom the Company is indebted, at law or ia equity, in a sum exceediag fifty pounds then due, (a) has served on the Company, by leaving the same at their registered office, (6) a demand under his hand requiring the Company to pay the sum so due, and the Company has for the space of three weeks ; Thfi Omnpcmies Ad, 1862. succeeding the service of such demand neglected to pay such sum,(c) or to secure or compound for the same to the reasonable satisfaction of the creditor : '2.) Whenever, in England and Ireland, execjation or other process issued on a judgment, decree, or order obtained in any court in favour of any creditor, at law or in equity, in any proceeding instituted by such creditor against the Company, is returned unsatisfied in whole or in part : (d) 3.) Whenever, in Scotland, the inducice of a charge for payment on an extract decree, or an extract registered bond, or an extract registered protest have expired without payment being made : 4.) Whenever it is proved to the satisfaction of the court that the Company is unable to pay its debts. z) In a sum exceeding fifty pounds then due, ^c] — ^The provisions of and the last section for ■winding-up a Company, in default of its ing a debt three weeks after notice, do not apply where there is a i fide dispute as to the amount due, though there may be an litted debt exceeding 50Z. : (Re Brighton Club and Norfolk Hotel ipany, 35 Beav. 204.) ^hen there is clear proof that a debt upon which a winding-up order ought is valid at law and in equity, the court wiU ordinarily make order ; but where the debt is impeached the court wiU exercise its retion : (Bowes v. The Hope Mutual Life Insurance and Honesty irantee Society, 11 Jur. N. S. 643, H. L. ; 12 L. T. Kep. N. S. 680. d Crauworth.) See sect. 86 of this act. ee, also, Rhydydefed Colliery Company, Ex parte audife, 3 De G. & -T. 80.) L debt which had been attached in the Lord Mayor's Court was held sufficient to support a petition for winding-up : (Re the European <,lc. Ex parte Baylis, Law Kep. 2 Eq. 521 ; 35 L. J. Ch. 690 ; 12 Jur. 3. 615.) In a petition, to wind-up a Company, by a debenture-holder, where Company admitted the validity of the debenture, but contended D the interest was only payable out of profits, the court took n itself to decide the dispute at the hearing of the petition, and le the winding-up order without waiting until the debt had been .blished at law : (Re Imperial Silrer Quarrii:^ Company, 16 W. R. 1220.) b) By leaving the same at their registered office, cS-c] — A demand, er this section, may be made by a creditor for the payment of debt at a Company's unregistered office where the Company has no :stered office : (Re the British and Foreign Gas Gmeratinq Apparatus npany, 11 Jur. N. S. 559, Ch. ; 12 L. T. N. S. 368.) 5) Atid the Company has, for the space of three iceeks, neglected to such sum, iVc] — An order for winding-up a Company, on the licatiou of a creditor, on the gromid that the Company has not i the petitioner his debt, within twenty-one days after notice Hiring payment (under tJiis section), will not be made, unless the nty-one days have elapsed before the petition is presented. Per the d Justice Tiu-ner. — Attempts to enforce by means of a winding-up Winding-up hy Court. 157 petition, the payment of a debt, the liability to which is JonS fide disputed by the Company, are not to be encouraged, and it seems that in such a case, a petition ought to be ordered (under sect. 86 of this act) to stand over till the debt is established : {Re Catholic Publishing and Bookselling Company^ 2 De G. J. & S. 116, on appeal.) The fact of a Company having neglected to pay a debt three weeks after demand made, under this section, is not sufficient to entitle the creditor to a winding-up order, unless it be shown that the Company is also unable to pay its debts. Where a debt is disputed by a Company, a petition by the creditor to wind it up will not be allowed to stand over, tmless it is behoved that if the debt had been estabUshed by a judgment, such judgment could not be enforced against the Company : (Re London Wharfing and Ware- housing Company, 35 Beav. 37.) See, also, Cardiff Preserved Coal, §-c.. Company v. Norton, Law Rep. 2 Ch. App. 405. (d) Unsatisfijed in whole or in part."] — Under this clause, when judg- ment has been obtained, the amount of the debt is immaterial : (jRe London and Birmingham Flint Glass and Alkali Company, Ex parte Wright, 1 De G. F. & J. 257 ; 28 L. J. Bank. 17.) 81. Definition of "the court." — The expression '^the court," as used in this part of this actj(a) shall mean the following authorities ; (that is to say,) In the case of a Company engaged in working any mine (6) within and subject to the jurisdiction of the Stannaries, — the court of the vice-warden of the Stannaries, unless the vice-warden certifies that ia his opinion the Company would be more advantageously wound-up in the High Court of Chancery, in which case " the court " shall mean the High Court of Chancery : In the case of a Company registered in England that is not engaged in working any such mine as aforesaid, — the High Court of Chancery : In the case of a Company registered iu Ireland, the Court of Chancery in Ireland : In all cases of Companies registered in Scotland, the Court of Session in either division thereof : Provided that where the Court of Chancery in England or Ireland makes an order for winding-up a Company under this act, it may, if it thinks fit, direct all subsequent pro- ceedings for winding-up the same to be had in the Court of Bankruptcy having jurisdiction in the place in which the registered office of the Company is situate ; and thereupon such last-mentioned Court of Bankruptcy shall, for the purposes of winding-up the Company, be deemed to be " the court," within the meaning of the act, and shall have for the purposes of such winding-up all the powers (c) of the 8 The Oompanies Ad, 1862. Lgh Court of Chancery, or of the Court of Chancery in eland, as the case may require. [o) The expression " the court," as nsed in this part of this act, Sj-c/] — le Court of Chancery may now refer the proceedings for winding-up Company to a County Court, and thereupon such Comity Court shall, ' the purpose of winding-up the Company, be deemed to be " the irt" within the meaning of this act. See "The Companies Act, 57," s. 41, post. [b) In the case of a Company engaged in working any mine, ^-c] — ^The t of the stannary jurisdiction under this section is not " actual work- ;," but the object for which the Company is framed. A Company s formed for the purpose of purchasing and working a mine in rnwall, and was registered under this act in the registry office of i Staimaries Court, but its registered office was in London, and it rer commenced business. It was held to be a Company "engaged working " a mine within the meaning of this section, and that the isdiction to wind it up was in the Stannaries Court, and not in ! Court of Chancery : (Re the East Botallack Consolidated Mining mpany, 34 Beav. 82 ; 34 L. J. Ch. 81 ; 10 Jur. N. S. 1193; 11 L. T. S. 408.) WTien a Company has been established for working mines within the trict of the Stannaries, the fact that some of the objects of the mpany are to be carried out beyond the district, does not exempt the mpany from the jurisdiction of the Stannaries Court : (Re Penhale i Lomax Consolidated Silver Lead Mining Company, Law Rep. 2 Ch. ip. 398 ; 36 L. J. Ch. 515 ; 16 L. T. N. S. 336.) [c) All the powers, SfC.'] — Where the Court of Chancery had directed ther proceedings to be taken in a Court of Bankruptcy, that court s held to have jurisdiction to commit persons disobeying its orders : X parte Hirtzell, 30 L. J. Ch. 38.) 82. Application for winding-up to be made by petition. — ly application to the court (a) for the winding-up of a impany under this act shall be by petition; (6) it may presented by the Company, or by any one or more sditor or creditors, (c) contributory or contributories of e Company, ((?) or by all or any of the above parties, ^ether or separately ; (e) and every order which may be ide(/) on any such petition shall operate in favour of all 6 creditors and all the contributories of the Company in e same manner as if it had been made upon the joint tition of a creditor and a contributory. 'a)^ Any application to the court, ^-c] — ^The preceding section gives a inition of " the court." [b) By petition.] — A petition to wind-up a Company must be intituled the matter of "The Companies Acts, 1862 and 1867," and of the mpany to which such petition shall relate, describing the Company its most usual style or firm. As to tlie practice of the Court of ancery with regard to such petitions, see General Orders and Rules November, 1862, and of March, 1868, post. Winding-up by Court. 159 A petition for winding-up a Company should not also pray for the appointment of a particular person as official liquidator. The court has power to appoint one at the hearing of the petition if the parties consent ; otherwise the matter must be settled in chambers : (Re the Commercial Discount Company, 7 L. T. N. S. 816, Ch.) The petitioner's costs are the first charge upon the Company's property in a winding-up, and must be paid in full, in priority to the costs of the official hquidator: (Ke Audley Hall Spinning Company, Law Rep. 6 Eq. 245.) (c) By any one or more creditor or creditors.'] — ^A creditor who comes within the terms of this act (see sects. 79, 80) is entitled to a winding- up order as of right : (iie Consolidated Bank, W. N. 1866, p. 232.) Where creditors presented a petition for winding-up a Company, and before the petition came on to be heard the chairman of the Company inserted an advertisement in the daily papers, accusing the petitioners of corrupt motives, the court refused to commit, but required an under- taking not to repeat the advertisement : (Ke the General Exchange Bank, 12 Jut. N. S. 465, Ch. ; 14 L. T. N. S. 582.) (d) Contributory or contrihutories of the Company, Sfc] — ^For a defini- tion of contributory, see sect. 74, supra. The right of a contributory of a Company to present a petition for winding-up has now certain limitations placed upon it by "The Companies Act, 1867," s. 40, post. That section enacts that no con- tributory shall be qualified to present a winding-up petition unless the members of the Company are reduced in number to less than seven, or \mless the shares in respect of which he claims to be a contributory, either were originally allotted to, or have been held by him, and registered in his name, for a period of at least six months during the eighteen months previously to the commencement of the winding-up, or have devolved upon him through the death of a former holder. Provided that where a share has, during the whole or any part of the six months, been held by, or registered in the name of, the wife of a contributory, either before or after her marriage, or by or in the name of any trustee or trustees for such wife, or for the contributory, such share shall, for the pm^oses of that section, be deemed to have^ been held by and registered in the name of the contributory. The holder of fully paid-up shares is a contributory within the mean- ing of this act, and is entitled in that character to present a petition to wind-up the Company : (Re National Savings Bank Association, Law Rep. 1 Ch. App. 547 ; 12 .Tur. N. S. Ch. 697); but he must show special circumstances to entitle him to an order for winding-up : (Re the Patent Artificial Stone Company, 11 Jur. N. S. Ch. 4; 11 L. T. N. S. 561.) See, also, Re the London Armoury Company, 11 Jur. N. S. Ch. 963. In another case it was held that, to obtain a winding-up order, the holder of paid-up shares must satisfy the court, that the Company has ceased to carry on its business, and that the assets of the Company are sufficient, after payment of the debts of the Company, to produce a surplus for division among the shareholders : (Re the Lancashire Brick and Tile Company, 34 L. J. Ch. 331 ; 11 Jur. N. S. 405.) A petition for winding-up, presented by persons who had merely acquired an interest in the Company for the purpose of presenting it, was not held to be irregular : (Re Cheshire Patent Salt Company, 9 Jur. N. S. 1098.) But see, now, " The Companies Act, 1867," s. 40, post. Where the transferee of scrip certificates transferable by delivery. 60 Tlie Companies Ad, 1862. fhich entitled the holder to become a shareholder in respect of the hares therein mentioned, and in the mean time to receive dividends, letitioned for the winding-up of the Company, a winding-up order 7as made on his petition, the petitioner admitting himself to be a iontributory, and undertaking to do all acts necessary to make himself , shareholder: (Re the Littlehampton, Havre, and Honfleur Steam Ship 'Company, 2 De G. J. & S. 521, on appeal.) Where the original inventor and owner of a patent sold it to a Company for a certain number of fully paid-up shares in the Company, nd was moreover paid all other claims which he had against the ^mpany, it was held that a petition presented by him for a winding- ip order must be dismissed with costs : (Re the Patent Bread Machinery Company, 14 L. T. N. S. 582, Ch.) As to shareholders petitioning for a compulsory winding-up, after a esolution passed to wind-up voluntarily, see Re London Flour Company W. N. 1868, p. 84; 16 W. R. 552), where the Court of Appeal xpressed strong disapproval of the proceedings of the petitioners, who rere seeking an order for a comptdsory winding-up, in opposition to , large majority of shareholders and creditors, in place of having irought forward their arguments at a meeting of shareholders. The letition was dismissed with costs. A petition by a shareholder to wind-up a Company within a year of ts incorporation, on the ground of its being a bubble scheme of under- land dealings, and that " it ought not to be allowed to continue," ifas granted : (Re London and County Coal Company, Law. Kep. 3 Eq. 155.) Where a winding-up order has been made on the petition of a share- lolder, who is afterwards made a contributory, and is a debtor to the Company in respect of calls, he is entitled to the costs of the petition, he hearing in court and the order, without having the amount of the alls set off against such costs : (Re General Exchange Bank, Law Rep. : Eq. 138 ; 16 L. T. N. S. 338.) (e) By all or any of the ahove parties, together or separately.'] — ^WTiere everal petitions are presented for winding-up the same Company, and n order has been made upon one of them, each of the subsequent etitions will be treated individually upon its own merits, as if it were be only one presented, and to entitle the petitioner to costs, must dis- lose such facts as would induce the court to make a winding-up order, ' no other petition had been presented : (Re the European Banking lom.pany, Ex parte Baylis, Law Rep. 2 Eq. 621 ; 35 L. J. Ch. 690 ; 2 Jur. N. S. 615.) The petitioner in this case was a creditor of a banking Company for nly 65/., and it appeared that, before his petition was presented, an ction had been brought against him by one of his creditors in the Lord layer's Court, under which this debt, which was assumed to be due to lim from the bank, had been attached ; under these circumstances, the ourt held, that it would not have made an order upon the petition to find-up the Company, on the ground that the interest of the petitioner s a creditor was too micci-tain in its character. The petition was, herefore, dismissed with costs. Where a creditor prosouted a petition for winding-up a Company the lay after a similar potition by another creditor had been advertised in ho public papers, and five days after the same petition had been innouncod m the Gazette, it was held that, as the second petitioner Winding-up hy Court. 161 had presented his petition so soon after the advertisement of the prior petition, it must be assumed, in the absence of evidence to the contrary, that he had no notice of its presentation, and was, therefore, entitled to his costs. Where directors, after a resolution, presented a petition for winding- up a Company, with full notice of prior petitions having been presented by creditors and contributories for the same purpose, the court refused to allow them their costs. And it seems a creditor who presents a winding-up petition after due notice of a prior petition having been presented by another creditor for the same object will not be allowed his costs : (JS« Empire Assurance Corporation, 16 L. T. N. S. 341, Ch.) See, also, Se Accidental and Marine Insurance Company, Ex parte Rasch, 36 L. J. Ch. 75^ 15 L. T. N. S. 173. There being two concurrent petitions for winding-up a Company, and the one presented last coming on to be heard first, an application for the transfer of the latter to the same court as that in which the former was presented was refused ; but upon the hearing of the first presented petition, which had been transferred to the same court as the second petition, an order was made directing payment of the costs of the first petition out of the assets of the Company : (Re British and Foreign Gas Generating Apparatus Company, 11 Jur. N. S. 559, Ch. ; 12 L. T. N". S. 368.) With regard generally to the costs of a petitioner to wind-up a Company, see sect. 86, infra. (y) Every order which may he made."] — The court has a discretion as to the order to be made on any winding-up petition. See sects. 86 and 91, infra : {Re Brighton Hotel Company, W. N. 1868, p. 196.) 83. Power of court. — ^Any judge of the High Court of Chancery may do in chambers any act which the court is hereby authorised to do ; and the vice-warden of the Stannaries may direct that a petition for winding-up a Company be heard by him at such time and at such place within the jurisdiction of the Stannaries, or within or near to the place where the registered office of the Company is situated, as he may deem to be convenient to the parties concerned, or (with the consent of the parties concerned) at any place in England ; and all orders made thereupon shall have the same force and effect as if they had been made by the vice-warden sittiag at Truro or elsewhere within the jurisdiction of the court, and all parties and persons sum- moned to attend at the hearing of any such petition shall be compellable to give their attendance before the vice-warden by like process and in like manner as at the hearing of any cause or matter at the usual sitting of the said court ; and the registrar* of the court may, subject to exception or appeal to the vice-warden as heretofore used, do and exer- cise such and the like acts and powers in the matter of M 62 Tlie Gompanies Act, 1862. ifinding-tip as lie is now used to do and exercise in a suit n the equity side of the said court. 84. Oommencement of ivinding-up hy court. — A winding- p of a Company by the court shall be deemed to com- aence(a) at the time of the presentation of the petition for he winding-up. (a) Shall he deemed to commence, Sfc.} — By sect. 153 of this act all ispositions of the property, and every transfer of shares or alteration in le status of the members of a Company, made between the commence- lent of the winding-up and the order for winding-up, shall, unless the ourt otherwise orders, be void. An agreement for the sale of shares entered into after a petition for 'inding-up the Company has been presented, and in ignorance of the let, is- not enforcible or valid in equity, and the purchaser will not be lade a contributory (He London, Hamburg, and Continental Exchange tank, Emmerson's case. Law Rep. 1 Ch. App. 433). In this case the greement was entered into before the petition had been advertised (as iquired by clause 2 of the General Order of November, 1862), and of ourse before any order to wind-up the Company had been made. See Chapman v. Shepherd (LawEep. 2 C. P. 228), as to the usage of le Stock Exchange with regard to a contract for the sale of shares 3t completed before the presentation of a petition to wind-up the lompany. A shareholder cannot be relieved from shares in a Company, upon the round of misrepresentation in the prospectus, on a biH in equity filed iter the presentation of a petition for winding-up, on which an order as subsequently made : (^Kent v. Freehold Land and Brickmaking 'ompany, Law Rep. 3 Ch. App. 493.) Although the directors of a Company have no control over its affairs \ter the winding-up is commenced, yet it has been held that they D not then cease to be officers of the Company, and are therefore Dund to answer interrogatories under sect. 51 of "The Common Law rocedure Act, 1854" (17 & 18 A'ict. c. 125) : (Jlie Madrid Bank, Limited, Bayley, Law Rep. 2 Q. B. 37.) 85. Court may grant injunction. — The court may, at any ime after the presentation of a petition (a) for winding-up a iompany under this act, and before making an order for inding-up the Company upon the application of the Com- any, or of any creditor or contributory of the Company, ^strain further proceedings in any action, (?>) suit, or pro- seding against the Company, upon such terms as the court rinks fit; the court may also at any time after the pre- mtation of such petition, and before the first appointment r liquidators, appoint provisionally an official liquidator (c) f the estate and effects of the Company. (a) At anil lime after the prcsrntation of a petition, .^c] — In connection itli this section, see sects. 87 and 163, infra. (h) Ikslraiii further proceedings in any action, .j-c.]— After a petition Winding-up by Court. 163 has been presented for the winding-up of a Company, the court has jurisdiction under this section to restrain the sale by the sheriff of property of the Company, seized under a writ of Ji. fa. before the presentation of the petition : (Re lilU Pottery Company, Law Rep. 1 Eq. 649.) In this case, on the execution-creditor giving up the execution, the court declared him to be entitled to a first charge on the property seized for the amount of his debt and costs. As to the division of the moneys produced by the subsequent sale of the goods between the creditor and official liquidator, see Be Hill Pottery Company (W. N. 1866, p. 339). See, also. Re Plas-yn-Mhoioys Coal Company (L&-W Rep. 4 Eq. 689), posi, in which the case of Re Hill Pottery Company was followed. A form of the order will be found in the report (Law Rep. 4 Eq. 691). But see Re Bastow and Company, Law Rep. 4 Eq. 681. Although the court may have jurisdiction under this section to restram a sale under an execution, yet the Lords Justices have clearly dissented from the view that in using the discretion go given, the court is to be influenced by the supposition, that the object of the act is to protect the body of creditors from inequaUty iu the division of assets, arising from priority having been gained by a diligent creditor. In the case of Re Great Ship Company, Ex parte Parry (33 L. J. Ch. 245 ; 3 N. R. 181 ; 12 W. R. 139), where the Court of Appeal permitted a creditor, who obtained judgment against a Company and issued execution bona fide before the presentation of a petition, to reahse his judgment. Turner, L.J., observed : "In my opinion the court, in dealing with a question thus dependent on its discretion, is bound to look to the legal rights of the parties, and to the interests not of one class of creditors only, but of each particvdar class of creditors who may be affected by the decision at which it shall arrive. I think that there is nothing in this Act of Par- liament which gives to the general creditors of the Company any right to have their interests consulted in preference to the interests of the particular creditor whose case may come before the court. I think it is the duty of the court to hold an even hand between the interests of all the parties, and I take this section [sect. 201, infra, similar to this, but applicable to unregistered Companies] to have been introduced into the aee, also, Re West Wwthing Waterworks, Baths, and Assembly Rooms mpany, 18 L. T. N. S. 849. it would seem that a provisional official liquidator, being in the position a receiver appointed pendente lite, is not entitled to appear at the iring of a winding-up petition, and if he does appear will not be )wed his costs : (Re General Litemational Agency Company, 5 N. R. ) ; 34 L. J. Ch. 337.) 86. Course to he pursued by court on hearing petition. — ■ 5on hearing the petition (a) the court may dismiss the me(fc) with or without costs, (c) may adjourn the hearing aditionally or uuconditionally, (d) and may make any ;erim order, or any other order that it deems just.(e) a) Upon hearing the petition.'] — -The court has in all cases a wide bretion as to the course it wUl take on hearing a petition to wind-up company, and by sects. 91 and 149, infra, is empowered to take steps ascertain the wishes of creditors or contributories, and to have regard those wishes. The circumstances under which the court shall have wer to order a winding-up are sot forth in sects. 79 and 80, supra ; t it rests with the court to exorcise that discretion or not : (Re 'iropoUtan Saloon Omnibus Company, Ex parte Hawkins, 5 Jur. N. S. The court will not, upon the hearing of a petition to wind-up a iiipany, enter into a contest as to the person to be appomted official uidator, and it will not appomt one, on that occasion, unless with > concurrence of all p;u-ties : (Re the Commercial Discount Comnami Bcav. 198.) ^ "' When a winding-up petition has been advertised (as required by the ncral Order of 1862), the Company and shareholders interested are Winding-up by Court. 1G5 justified in taking steps to oppose the petition, although they have not been served with it : (Re Marlborough Club Company, Law Kep. 1 Eq. 216.) (V) The court may dismiss the same, §-c.] — By sect. 82, supra, a petition to wind-up may be presented by the Company, by a creditor or creditors, and by a contributory or contributories ; a petition, presented by a person not coming within one of these denominations, cannot obtain an order. Where, therefore, the original inventor and owner of a patent, sold it to a Company for a certain number of fully paid-up shares in the Com- pany, and was, moreover, paid all other claims which he had against the Company, it was held that a petition presented by him for a winding-up order must be dismissed with costs. It appeared, further, by the Articles of Association of the Company, and the agreement for the sale of- the patent to them, that if the Company was ordered to be wound-up, the patent was to revert to the petitioner. It appeared, also, that the Company was formed for two distinct purposes, one of which had failed ; but that the shareholders and execution-creditors were anxious to continue the other, which they believed would be successful. It was held that that was not a case in which the court would make a winding-up order : (jRe Patent Bread Machinery Company, 14 L. T. N. S. 682, Ch.) If the petition does not come within the terms of sects. 79 and 80, supra, it will be dismissed. In the following cases petitions presented by creditors were dis- missed : Re Catholic Publishing and Bookselling Company (2 De G. J. & S. 116), on the ground that the requisitions of sect. 80, supra, were not complied with : Re European Banking Company, Ex parte Baylis (Law Rep. 2 Eq. 521), where the petitioners' debt was small, and attached in the Lord Mayor's Coiirt for a debt of his own : Re Brighton Club and Norfolk Hotel Company (1 1 Jur. N. S. 436, Ch. ; 12 L. T. N. S. 484), where the court refused to make a winding-up order upon the petition of a creditor whose debt was bona, fde contested, although it was manifest that, upon taking the accounts, more than 50Z. would be found due to him. See, also. Re London Wharfing and Warehousing Company (35 Beav. 37), and Re Hope Mutual Life Assurance Company (1 N. R. 542 ; 11 Ho. Lords Cas. 389), both cases decided on the ground of the debt being disputed. ■The following were cases of petitions presented by shareholders. Where a Company, having power to buy up other concerns, agreed to amalgamate with another Company, and a shareholder in the former Company, who objected to the amalgamation, presented a. petition pray- ing for an order to wind it up, alleging that it had ceased to carry on business; but really d.esiring, by means of the winding-up order, to ascertain his exact position in the concern, it was held that the case was not one for a winding-up order within the act, and that the petitioner ought to file a bUl in equity to have his rights determined : {Re National Financial Corporation, 14 L. T. N. S. 749, Ch. ; W. N. 1866, p. 243.) See, also, as regards amalgamated Companies, Re Anglo-Australian Assurance Company (1 Drew. & Sm. 113), ajaA London, Newbury, and Bath Direct Railway Company, Exparte Cookson (15 Jur. 615). It was held that the provisions of the act as to winding-up orders are not intended to apply to cases where there is a very small body of share- >Q The Gohijjaii'ies Act, 1862. IJcrs, and no ditEcnltics exist in thu w;iy of voluntary winding-up : e Natal S,-c., Company, 1 H. & M. 639.) Acting on this principle with regard to a Company where there were ly seven shareholders, and no debts, the cotirt dismissed a winding-up tition with costs : (Re Sea and River Marine Insurance Company, Law ip- 2 Eq. 545 ; 35 L. J. 820, Ch. ; 12 Jur. N. S. 779.) In Re Bwleh-if-Phrm Company (17 L. T. N. S. 235), a shareholder's tition was dismissed (althoifgh withoot costs), which had been pre- ited on the ground, that moneys and paid-up shares bad been given to rsons, to induce them to become directors of the Company. Where a shareholder presented a petition to wind-up a Company, thin twelve months after its incorporation, on the ground that in the 3n state of the money market it was hopeless that any more of the impany's shares would be subscribed for, and that under the circum- mees the Compaiiy was without the power of carrying ovtt its objects, 3 petition was dismissed with costs : (lie Hop and Malt Exchange mpany, W. ISI. 1866, p. 222.) In the case of Re Suburban Hotel Company (Law Rep. 2 Ch. App. 737), ihareholder's petition alleging, that the Company's business had been spended for more than twelve months (which, however, was not 3ved), that it had been carried on at a loss, and could not be carried at a profit, was dismissed, with costs. It appeared that a large ijority of shareholders were in favour of carrying on the business, and ch being the case, the court would not, on opinion evidence, pronounce at the concern was likely to be an unprofitable speculation. A similar order was made in Re Joint-Stock Coal Company (W. N. 69, p. 82), in which the petitions were grounded on the fact of the Qcern having been carried on at a loss, although it was not alleged at the Company was insolvent. "Bvii, »e% Re Oreat Northern Copper Mining Company of Australia (17 . R. 462), where an order was made against the wishes of a majority shareholders. The petition was also dismissed in Re Fact age Pariiien Company (11 ir. N. S. 121), where the business had been carried on at a loss, but omised ultimately to become prosperous, and the majority of sharo- ilders were in favour of going on ; Re ^fetropolitali Salooa Omnibus nnpany (5 Jur. N. S. 922), where the circiunstanees were simihir' to ose in the case just mentioned, and the petitioner was the nominee of rival Company; Re Anglo-Greek Steam Company (Law Rep. 2 Eq. 1), 153, ante, in wliich the ground of the petition was the misconduct the directors and manager. See, also, Re Wexford and Valencia Raihvay Company, Exparte Fixher, De G. &. S. 116) ; Re Narborough and Watlington Railway Company, K parte Jamc>i, 1 Sim. N. S. 140; Re Natimal and Prorincial Lire Stock siirance Company, 26 Beav. 158 ; Re Wheal Lorell Mining Company, r parte Wyld, 1 Una. & G-. 1; Re AgHrnltiiri,-!ts' Cattle Inmrance Com- :ny, Exparte Spackman, 1 Mac. & G. 170, ante. Where a Company is being woimd-vtp voluntarily the court wUI smiss a contributory's petition for a compulsory winding-up, unless e resolution for wnulmg-up voluntarily can be successfully impeached, ■ other strong grounds be shown. On this point see Re Bank of ibraltarand Malta Law Rep. 1 Cli. App. GO; Re London and Mercantile isamd Company, Liuv Rep. 1 Eq. i'77 ; Re Imperial Mercantile Credit ssnciation. Ex parte Coleman and others, W.N. 1866, p 257- 5^ David\- old Mnmig Company, W . N. 18C6, p. 196; Re General international Winding-up by Gourt. 167 Af/ency Company, 5 N. R. 265 ; Re Union Bank of Calcutta, Ex parte Watson, 3 De G. & S. 253 ; Re British Alkali Company, Ex parte Guest, 5 De G. & S. 458 ; Re London Conveyance Company, Ex parte Wise, 1 Drew. 465. As to the court refusing to make a winding-up order wUch would be useless when made, see Re London and South Essex Railway Company, Ex parte Murrell, 3 De G. & S. 4 ; & Great Munster Railway Company, Ex parte Inderwick, 3 De G. & S. 231 ; Re Chester and Manchester Direct Railway Company, Ex parte Phillips, 1 Sim. N. S. 605. (c) With or u'ithout costs.^ — Th^ Master of the RoUs held, that where a petition to wind-up a Company is dismissed, the petitioner will, as a general rule, be ordered to pay the costs of the Company opposing the petition, and of every person against whom a personal charge is made by the petition, and who appeai-s and disproves such charge, and is otherwise free from blame; but no other person appearing, either to support or oppose the petition, wiU be allowed any costs. But where the winding-up order is made, the petitioner and the Company will have their costs out of the estate, and shareholders and creditors who appear to support the petition will have out of the estate one set of costs between them : (JRe Humher Ironworks Company, 35 Beav. 846 : Law Rep. 2 Eq. 15 ; 12 Jur. N. S. 265 ; 14 L. T. N. S. 216.) The view taken by the Master of the RoUs in the last case, as to the costs of shareholders and creditors who appear at the hearing of a petition which is dismissed, was dissented from by Kandersley, V.C., who held that the rule, that where a petition for winding-up succeeds, shareholders who oppose will have one set of costs, and creditors who oppose another set of costs, apphes equally to the case where the petition faOs and the shareholders or creditors oppose : (Re European Bank, Ex parte Baylis, Law Rep. 2 Eq. 521; 35 L. J. Ch. 690; 12 Jur. N. S. 615.) In Re London Permanent Benefit Building Society (17 W. R. 513), Malins, V.C., allowed the costs of creditors, who appeared and success- fully opposed a shareholder's petition. It was held by Kindersley, V.C., that the advertisement of a winding- up petition, under the orders of 1862, is of itself sufficient notice of such petition, to justify the Company and shareholders who are interested in such Company, in appearing on the petition, and if they are successful in opposing it, they are entitled to their costs, although they may not have been served with the petition. And in a case where a Company and shareholders, though not served, appeared on a petition, after notice that it was intended to be with- drawn, they were held entitled to costs incurred by them before they had notice of such intended withdrawal: (ije Marlborough Club Com- pany, Law Rep. 1 Eq. 216.) See, however. Re Oriental Commercial Bank (W. N. 1866, p. 283), where Wood, V.C., -having made a winding-up order, gave costs only to the parties who had been served with the petition. His Lordship adopted the same rule in Re Hop and Malt Exchange Company (W. N. 1866, p. 222), where the petition was dismissed. See, also, Re Imperial Mercan- tile Credit Association, Ex parte Coleman and others (W. N. 1866, p. 257.) See, also. Re Bwleh y Plwm Company, 17 L. T. N. S. 235. A petition for winding-up having been presented, on the ground of the misconduct of the directors and manager of a Company (see sect. 79, cl. 5, supra), the Master of the RoUs, in dismissing it, held that where shareholders appear to resist a petition for winding-up a Company, >8 The Companies Act, 1862. ey do so at their own costs ; but where the petition contains a rsonal charge against any director or any member of the Company, B director or member so assailed is entitled to appear separately, and the case against him fails, he is entitled to his costs : (Re Anglo- Greek 'Mm Company, Law Rep. 2 Eq. 1 ; 12 Jm-. N. S. 323.) See, also, Re AlUon Bank (15 L. T. N. S. 346 ; W. N. 1866, p. 388). Where a petition of appeal, presented by a Company to discharge a nding-up order, was dismissed, the form of tihe order was to direct e costs of the respondents to come out of the estate, and make no der as to the costs of the Company : (iJe National Savings Rank Asso- ition, Law Rep. 1 Ch. App. 547 ; 35 L. J. Ch. 808.) A person who appears to support a petition that is dismissed, or to pose one that succeeds, wiU not be entitled to costs, see Re London d Mediterranean Bank, W. N. 1866, p. 207. Where several petitions are presented for winding-up the same Com- ny, and an order has been made upon one of them, each of the sub- juent petitions will be treated individually as if it were the only one esented, and, to entitle the petitioner to costs, must disclose such facts would induce the court to make a winding-up order, if no other tition had been presented : {Re European Bank, Ex parte Baylis, iw Rep. 2 Eq. 521 ; 35 L. J. Ch. 690 ; 12 Jur. N. S. 615.) (cf) May adjourn the hearing conditionally or unconditionally.'] — Where Company was in course of voluntary winding-up, and a person claim- 5 to be a creditor, but whose debt was disputed by the Company, titioned for an order to wind-up the Company, and it was admitted at there were sufficient assets, it was held that the debt being bona 'e disputed, the proper course for the creditor was to establish his bt at law ; and then, if he could not get paid, to come to the court r a winding-up order. But the official liquidator having refused to cept service for the Company in an action which the creditor had mmenced, the court ordered the petition to stand over to await the iult of the action at law : (Re Inventors^ Association, 2 Drew. & S. 3.) See, also, Re Rhydydefed Colliery Company, 3 De G. & J. 80. The only creditor of a Company, which had ceased to carry on siness, recovered judgment against the Company, upon which execu- n was issued, and a return of nulla bona made. The judgment- ;ditor then presented a petition for a winding-up order against the impany, but the debt being doubtful, and it being alleged by the imp'any that the judgment was obtained by fraud, the court ordered 3 petition to stand over for a limited time, to give the Company an portunity of taking proceedings to impeach the judgment. Per Lord Cranworth. — Where there is clear proof that a debt upon lich a winding-up order is sought is valid at law and in equity, the art wiU ordinarily make tho order, but where the debt is impeached s court will exercise its discretion : (Bowes v. The Hope Mutual Life mrance and Honesty Guarantee Society, 11 Jur. N. S. 643, in Dom. Proc ; L. T. N. S. 680 ; 35 L. J. Ch. 574.) The court, however, is not bound, e.r debito justitix, to make an imme- ite order to wmd-up a Company even upon the petition of a creditor lose debt is admitted and not paid, but may under this and sect 91, ra, order the petition to stand over to enable the Company to make ■angemeuts for tho payment of its debts, and the successful carrying of Its busmess, and will make such order where there is a reasonable Winding-up by Court. 169 hope of such arrangements being made': (Re Brighton Hotel Company, Law Kep. 6 Eq. 339.) The hearing having been adjourned, in this case, an order was ultimately made for discharging the provisional liquidators, and staying aU further proceedings on the petitions, upon payment of the debts and costs of the petitioners, and the costs and remuneration of the liquidators. In Re Imperial Silver Quarries Company (W. N. 1868, p. 234), the court allowed the drawing up of the order on a creditor's petition to be postponed for ten days, as it was contended that the Company had assets, although the debt was sufficient to support a winding-up order. In the foUowing cases, also, petitions were ordered to stand over : Re Imperial Bank of China, India, and Japan, Law Rep. 1 Ch. App. 339 ; iJe London and Manchester Direct Railway Company, Ex parte Pocock, 1 De G. & S. 731 ; Re Bosworthon Mining Company, 26 L. J. Ch. 612 ; Ex parte Moss, 14 Jur. 754 ; Ex parte Collins, 8 W. R. 170 ; Re Monmouthshire and Glamorganshire Banking Company, 15 Beav. 74 ; Ex parte Williams, 1 Sim. N. S. 67 ; Wheal Anne Mining Company, 80 Beav. 601 ; -North- Western Trunk Company, 3 De G. & S. 266 ; Re British Provident Assurance Society, 1 Drew. & Sm. 113. A shareholder's petition, on the ground of an unjustifiable transfer of the Company's business, was ordered to stand over until the question as to the transfer should have been decided, in a suit properly instituted for the purpose : (Re International Life Assurance Society, W. N. 1868, p. 812.) See, also. Re Albert Insurance Company, W. N. 1868, p. 48. (e) Any other order that it deems just.'] — A Company passed a resolution for a voluntary winding-up under supervision. The liquidator called up all the remaining unpaid capital, but declared no dividend, the only excuse given by him being that the Company was prosecuting a claim against their manager. On a petition by creditors, whose debt amounted to three-fourths of the whole debts, and which had remained unpaid for a year and a half, it was held that they were entitled to an order for a compulsory winding- up : (Re Manchester Queensland Cotton Company, 16 L. T. N. S. 583, Ch. ; W. N. 1867, p. 192.) See, also. Re London and Mediterranean Bank, 15 L. T. N. S. 153, Ch. A Company duly passed a resolution at a general meeting for a voluntary winding-up under supervision, and a petition was presented accordingly. The liabilities of the concern were enormous ; and another petition being presented, before the hearing of the former one, by a creditor for upwards of 800,000?., praying an order to wind-up the Com- pany compulsorily, it was held that the Company must be wound-up compulsorily : (Re Barned's Banking Company, 14 L. T. N. S. 451, Ch.) A petition was presented in July, 1866, by the directors of the Oriental Commercial Bank, praying that the bank might be wound-up compulsorily, but at the hearing it was asked that it might be wound-up voluntarily under the supervision of the court. The Alliance Bank, a creditor for 9200Z., asked for a compulsory wioding-up, and a majority of the creditors not having opposed, the Vice-Chancellor made an order to that effect. Subsequently, a majority of the creditors were in favour of a voluntary winding-up, and the Lord Chancellor, on appeal, decreed accordingly : (Re Oriental Commercial Bank, 15 L. T. N. S. 8, on appeal ; W. N, 1866, p. 312.) ' The Oorwpanicn Act, 1862. 'liilo a Company was in course of voluntary winding-up, a petition presented by a creditor and a shareholder for a continuance of the ntary winding-up, under the supervision of the Court ; and before order was made on it, another petition was presented by creditors I compulsory winding-up. The Master of the Rolls, with a view to peculiar circumstances of the case, made an order dated the day of hearing for a continuance of the voluntary winding-up under the xvision of the court, and an order to be dated the following day I compulsory winding-up, which would supersede the former order : United Service Company, W. N. 1868, p. 267.) ^ ''here a creditor petitions for a compulsory winding-up, although the t may allow the petition to stand over if the Company undertake to the debt, the court wiU not do so simply to enable the Company to i-up vohmtarily, even though a voluntary winding-up is wished for 1 considerable body of other creditors : (Re General Rolling Stock pany, 34 Beav. 814.) !e, also. Re Beaujolais Wine Company, Law Rep. 3 Ch. App. 15. tie creditors of an insolvent Company were held entitled to a wind- up order, although there would be, by reason of prior claims, no fcs coming to them, on the principle that the concern was actually •s, and that they ought to have the control of the management : Me of Wifjlit Ferry Company, 2 Hem. & Mil. 597.) creditor had presented a petition for winding-up a Company, ;h was in the paper for hearing on the 11th of ilay, but at the est of the Company he allowed it to stand over. Pie was then vare, but afterwards discovered, that the Company on the 16th of il had executed, and on the 7th of ^lay had registered, a bill of sale le effects of the Company to one of the directors : it was held that, ;r the circumstances, he was entitled to an order for a compulsory ling-up : (Re London and Provincial Starch Company, E.r parte Adams, ,. T. N. S. 474, Ch.) ''here a petition was pending for winding-up a Company in one ch of the Court, and an official liquidator had been pro\Tsionally )inted, but the petitioner had failed to prosecute the petition within time limited, the court, in the interuu, granted to a second ;ioncT, in another of its branches, an order to wind-up the Company : Consolidated Banle,14, L. T. N. S. 656, Ch.) Orders on Contributories Petitions. lie transferee of scrip certificates transferable by delivery, which iled the holder to become a shni'eholder in respect of tlie shares ein mentioned, and in the mean time to receive dividends" petitioned he wmding-up of the Company. It was lield by Knight Bruce, L.J., ning the decision of the Master of the Rolls ('ruruer, L.J., dis- iug), that the petitioner admittmg himself to be a contributory and ■rtaldng to do all acts uocossary to make liimself a shareholder, uding-up order might be made on his petition : {Re Littleliam.pton , re, and Ilonfeur Steam Ship Company, 2 De G. J. & S. 521, on sal.) 'here a shareholder petitioned for a winding-up order, alleging that -welve months and upwards tlie Company had been unable to carry lusniess, and that a single shareholder possessed overwhelming ence in the concern, an order to wind-up was made, although a nil resolution had been passed (but not confirmed) for a voluntary ling-up : (Re West Survey Tanning Company, Law Rep. -^ Eq. 737.) W!iuUiig-up hij Court. 171 A mining Company in wluoh no profit had been made for the pre- ceding four years, and which was unable to di;chaxge its existing liabilities without a further call on its shareholders, was ordered to be wound-up in compliance with the wishes of a minority of shareholders, although the majority were opposed to such a course : (Re Great Northern Copper -Miniju/ Company of Australia, 17 W. K. 462.) But see Re Suburban Hotel Company, Law Rep. 2 Ch. App. 737, supra. An order to wind-up was made on the petition of a shareholder, presented within three months after the Company was incorporated, on the ground, of its being a bubble scheme, of underhand dealings, and that " it ought not to be allowed to continue" • {Re London and County Coal Company, Law Rep. 3 Eq. 355.) Orders were also made on contributories' petitions in Re Fire Anni- liilator Company (32 Beav. 561), where a voluntary winding-up had been going on for an unreasonably long time without coming to an end ; in fie Metropolitan Warehousing Company (W. N. 1867, p. 94), on the ground that the Company had not commenced business within a year; in Re Wey and Arun Junction Canal Company (W. N. 1867, p. 100). See, also, fie Electric Telegraph Company of Ireland (22 Beav. 471), fie Norwich Yam Company (12 Beav. 366), Re Bastenne Bitumen Company (3 De G. & S. 265), and Re Slierwood Loan Company (1 Sim. N. S. 165). Ex parte Phillips (3 De G. & S. 3), Ex parte Dee (lb. 112), Ex parte Lawton (1 K. & J. 204), and fie Pennant and Craigwen, (fc, Mining Company (15 Jur. 1192), were cases where the Company in question had amalgamated with another Company. Where a winding-up order had been made on the petition of a share- holder who is afterwards made a contributory, he is entitled to the costs of the petition and order, though a debtor to the Company in respect of calls, without having the amount of such calls set off against the costs : (Re General Exchange Bank, Law Rep. 4 Eq. 138 ; 16 L. T. JST. S. 338.) Where aU the shares of a Company have been fully paid-up and the assets of the Company are insuiEcient to discharge its debts, the court will pay regard to the wishes of creditors in preference to those of shareholders : (fie Lonsdale Vale Ironstone Company, 16 W. R. Ch. 601.) But see fie Trowbridge Water Sjipply Company, 18 L. T. N. S. 115. As to the power of a paid-up shareholder to present a petition, see sect. 82 of this act. The onus of proof lies on a holder of paid-up shares, who petitions for a winding-up order to show that he has an interest. He must do this by definite statements, not by mere general allegations. He has no interest if the Company be insolvent : (fie Lancashire Brick and Tile Company, 34 L. J. Ch. 331-; 11 Jur. N. S. 405.) Where two petitions to wind-up were presented, one by a paid-up shareholder, the other by a shareholder who had only paid the deposit on appUcation, it not appearing that the Company was insolvent, an order was made upon both petitions ; but it was held that the paid-up shareholder was entitled to the conduct of the winding-up : (Re Con- stantinople and Alexandria Hotels Company, 12 W. R. 851.) A Company made a call upon its shai-eholders, payable in two months' time ; but in the interim, being unable to pay its debts, two petitions, one by a shareholder and the other by a judgment and execution creditor, were presented for winding it up. The court, not- withstanding the opposition of a majority of the shareholders, 'and an allegation on the part of the Company that it woidd be in a position to meet all its engagements as soon as the call had been paid, made an 72 The Companies Ad, 1862. rder to wind-up the Company on both petitions : (Re International Contract Company, Ex parte Spartali and Tahor, 12 Jur. 591 ; 14 L. T. 26.) Two petitions were presented to wind-up a Company, the first by a reditor, the second and subsequent one by shareholders. The second ontested the debt upon which the first was founded, and alleged cir- umstances to show that the relations between the creditor (a banking ^mpany) and the Company required investigation. The Master of lie Rolls made an order on both petitions, on the groimd that he could ot dismiss the first without determining that the debt was bad, nor the Bcond without coming to the conclusion that the charges made by it rere frivolous and unsubstantial ; and that he could not arrive at ither conclusion upon the evidence. The carriage of the proceedings ras given to the shareholders who presented the second petition : (Re lUndy Granite Company, W. N. 1868, p. 260.) Where several petitions to wind-up have been presented, and the rder made, but subsequent attempts at an arrangement, by reason of rhich the order was not drawn up, have failed, the court will not deal dth the question of the carriage of the order, or of post dating it, except in tie presence of all parties : (Re Disderi and Company, 18 L. T. N. S. 870.) Reversal or Dlicharge of Order. Where a winding-up order has been made, no question can be raised ffecting the constitution of the Company, or the validity of the pro- eedings in the wiading-up, until the winding-up order is discharged : Re Overend, Gurney, and Co., Ex parte Oakes and Peek, 36 L. J. Ch. 13.) But where the order has been made by a court that has no jurisdiction ) make it, it is invalid, and must be treated as such, although it has ot been appealed against : (Re Plumstead, &-c., Watvr Company, 28 Beav. 45 ; 2 De G. F. & J. 20.) An order for the winding-up of a Company may be appealed from I the usual manner. It has been held (Re Unh-ersal Bank, Law Rep. Ch. App. 428), that sect. 124, infra, does not apply to orders made on Q original petition to wind-up, and therefore that such orders may be ppealed from, although more than three weeks have elapsed from the taking of the order complained of. With regard to the practice before this ct, see Re Anglo-Califomian Gold Mining Companxj (1 Drew. & Sm. 628), a.ARe Plumstead, &,-€., Water Company (28 Beav. 545; 2 De G. F. & J. 20). In Re National Savings Bank Axs-ociation (Law Rep. 1 Ch. App. 554), Company appealing against a winding-up order was allowed its costs ut of its own estate,-although the appeal was dismissed. As to a party, who has obtained an order, enrolling it so as to prevent a appeal except to the House of Lords, see Re Direct London and Exeter lailtvay Company, 1 Mac. & G. 534. Where it was sought to stay all proceedings under a winding-up order made under "The Winding-up Act, 1848"), imtil the hearing of an ppeal about to be presented to the House of Lords, the application was oiuf i\^°^<^'>^ "«'' ^laiiclicster Direct Railway Compam/, 1 Mac. G. 176.) By sect. 89, infra, however, the court has power to stay the roceedmgs imder a winding-up order on the application of any creditor r contributory. The court that has made a winding-up order will, on motion or Jtition, dischfu-ge the same, if it be shown that material circumstances ere concealed or misrepresented, and if these circumstances were Winding-up by Court. 173 within the knowledge of the original petitioner, he will be compelled to pay the costs of the application to do so : (JJe Ipswich, ^c. Railway Company, Ex parte Bamett, 1 De G. & S. 744 ; Re Cambrian Junction Railway Company, Ex parte Coleman, 3 lb. 139.) But the court will not discharge the order unless applied to promptly after the grounds for making the application are known. See Re Metropolitan Carriage Company, Ex parte Clarke, 1 K. & J. 22 ; Re Chepstow, Gloucester, Sfc, Railway Company, 2 Sim. N. S. 11 ; Re Direct Exeter, Plymouth, §-c., Railway Company, Ex parte Woolmer, 5 De G. & S. 117 ; on appeal, 2 De G. M. & G. 665. It has been held that a winding-up order made under " The Com- panies Act, 1856," was not invalidated by the fact that the creditor, in demanding payment of the debt on which his petition was founded (see sect. 80, supra), demanded a larger sum than was really due to him by the Company: (^Cardiff Preserved Coal, Sfc, Company v. Norton, Law Rep. 2 Ch. App. 405.) Order Notice of Discharge to Servants. An order for the winding-up of a Company is notice of discharge to the servants of the Company : (Re General Rolling Stock Company, Chapman's case. Law Rep. 1 Eq. 346 ; 12 Jur. N. S. 44.) But Wood, V.C, held, distinguishing the last case, that, although where the business of a Company is wholly at an end, a winding-up order may be notice of discharge to the servants of the Company from the date of the order, yet where the business is continued after the winding-up, and the former servants are actually employed, the old contract between the Company and its servants continues in force, and notice of discharge must be given pursuant thereto : (Re English Joint- Stock Bank, Ex parte Harding, Law Rep. 3 Eq. 341.) See, also. Re English Joint-Stock Bank, Ex parte Finney (W. N. 1867, p. 97), as to a claim by the manager of a bank for arrears of salary, up to the date of a winding-up order. As to such claims generally, see sect. 158, infra. 87. Actions and suits to he stayed after order for winding- up. — ^When an order lias been made(a) for winding-up a Company under tliis act no suit, action^ or other proceeding shall be proceeded vvitli(6) or commenced against the Com- pany except with the leave of the court, (c) and subject to such terms as the court may impose. (a) When an order has been made, ^c] — See sect. 163 of this act, by which attachments, sequestrations, and executions, put in force after the commencement of the winding-up shall be void; and sect. 198 with reference to Companies authorised to register under this act, and sect. 202, infra, with regard to unregistered Companies. Notwithstanding sect. 163, infra, the court has power, under this section, where a winding-up order has been made, to give leave to a creditor to proceed with an execution; and it was thrown out by Wood, V. C, that the 163rd section has reference to cases of fraudulent preference : (Re London Cotton Company, Law Rep. 2 Eq. 53^ See, also. Re Kingstown Royal Marine Hotel Company, 15 W. R. 978. (6) Shall be proceeded uiith, ^c] — As to the court in which an action is brought staying proceedings in such action, see Thomas v. Wells (33 L. J. 1, Tlie Gomimnies Ad, 1862. '.-211), and M'Kcnzlcv. Sliqo anil Shannon Railway Compamj (18 Q. B. S. 862 ; 21 L. J. Q. B. 380), decisions under the repealed acts m the irts of Common Law. See, also, Barnes v. Thriipp, 27 L. J. Ch. 183. !ut where an order for winding-up a Company has been made, a ge sitting at Nisi Prius wiU not under this section stop all ftlrther ceedings in an action brought against the Company after the cause been called on and the jury sworn ; and it seems that the proper rse to be piu-sued is, to apply on affidavit, setting out the fact of order having been made, to the judge before the cause has been ed on : {Henderson -f . Peruoian Railivaij Company^ 16 L. T. N. S. 297, L creditor of a Company, on the day on which a winduig-up order 1 made, obtained a judgment against the Company, and issued a fa., which he subsequently delivered to the sheriff for execution. J court, on the application of the official liquidator, restrained further ceedings : {Re Waterloo Life, 4'c., Insurance Company, 31 Beav. 589 ; ur. N. S. 292, Ch. ; 7 L. t. N. S. 459.) L private individual, who is defendant in the same suit with a joint- ;k Company against which a winding-up order has been made, is entitled to have further proceedings stayed, on the ground that appUoation has been made under this section for leave to proceed h the suit: {Wells v. Estates Investment Company, 15 W. R. 762.) lee, also, Re United Enijlvsh and Scottish Assurance Company (Law Rep. Iq. 300), post, and the same Company, Ex parte Hawkins (Law Rep. Ih. App. 787), post. c) Except with the leave of the court, lVc] — Any application under this ion, for leave to continue proceedings against a Company in process viuding-up, must be made in that branch of the court in which the ding-up order has been made, and not in that in which the pro- iings have been instituted: {Wilson y. Xatal Investment Company, L. J. Ch. 312.) n a suit against a Company to restrain trespass, liberty was given, [er this section, to the plaintiffs, after a winding-up order, to proceed h the suit : ( Wyley v. TheExliall Coal Mining Company, 33 Beav. 538.) Vhere the plaintiff commenced a suit against a Company and another 3on, subsequently to which an order for wmding-up the Company 1 made, and Stuart, V.C., refused to the plaintiff leave to proceed h the suit, the Court of Chancery Appeal discharged the order, being )pinion that this section was not intended to prevent the prosecution 3uoh a suit, to wliich a Company in liquidation was a necessary ty- ?he court wiU not order the plaintiff in such a case to give security costs unless special circumstances are shown to justify such an order : cEiLvn V. The London, Bombai/, and Mdilvrranean Bank, 15 L. T. S. 495, Ch.) Vhere a creditor in an action against a Company had, before a ition for winding-up the Company was presented, recovered judgment [ sued out a writ of execution, which was in the sheriff's hands, and lid have been executed but for resistance made to the sheriff's officer, court, after making the winding-up order, in the exercise of its iretion, dissolved an injunction, restraining the execution which had n obtained on motion c. r parte hy the petitiouiiiL;- creditor unmediately .'V the presentation of the petition, and gave leave to put in force the oution : {He London Cotton Compani/, Law l!ep. 2 Eq. 53.) Wincling-np hy Gourt. 175 See, also, Re Bastow and Company, Law Rep. 4 Eq. 681 ; 16 L. T. N. S. 788, post, and Re Plas-yn-Mhoivtjs Coal Company, Law Rep. 4 Eq. 689, post. Where an application was made by mortgagees of land belonging to a Company, which had been ordered to be wound-up, for leave to file a bill for foreclosure against the Company, the application was refused by the Master of the RoUs, on the ground that the applicants could obtain all the relief they required in chambers in the winding-up. On appeal, however, leave was given to file the biU : (Re St. CuthberVs Lead Smelting Company, W.N. 1866, pp. 84, 90.) An applicant under this section for leave to file a biU against a Company must file a short affidavit verifying such of the allegations of the bin as are within his own knowledge and stating his belief of the truth of the other allegations : (iJe St. Cuthherts Lead Smelting Company, W. N. 1866, p. 154.) Where a shareholder succeeded in a suit against a Company and its directors for misrepresentation, the costs of an application in the Hqui- dation (in another branch of the coujt), for leave to proceed in the suit, were ordered to be included in the costs of the suit : {Henderson v. Lacon, Law Rep. 5 Eq. 249.) Where an application was made for leave to proceed with a suit, by a shareholder on behalf of himself and other shareholders, against the directors and the Company as defendants, an order was made that the suit might be proceeded with, on an undertaking by the plaintiffs not to take any steps to enforce any decree against the Company, without the leave of the court, the Master of the Rolls saying that in future such applications should be made by summons in chambers : (Hagell v. Currie, Re Breech-Loading Armoury Company, W. N. 1867, p. 75.) See, also. Philips v. Ottoman Financial Association, Re Ottoman Finan- cial Association, W. N. 1867, p. 107. 88. Copy of order to be forwarded to registrar. — Wten an order has been made for winding-up a Company under this actj a copy of sucli order shall forthwith be forwarded by the Company to the Registrar of Joint-Stock Companies, who shall make a minute thereof in his books relating to the Company. 89. Power of court to stay proceedings. — The court may at any time after an order has been made for winding-up a Company, upon the application by motion {a) of any creditor or contributory (&) of the Company, and upon proof to the satisfaction of the court that all proceedings in relation to such wiading-up ought to be stayed, make an order staying the same, either altogether or for a limited time, on such terms and subject to such conditions as it deems fit. (a) Upon the application hy motion, ^c] — The application should be made to the court that made the winding-up order, and the court should be satisfied that it is not for the interest of the Company or of those interested in the winding-up that the proceedings should go on. See Re Worcester, Tenhury, and Ludlow Railway Company, 3 De G. & 8. 189. 176 The OompoMiea Act, 1862. The court refused to stay proceedings in a winding-up pendin] appeal from the winding-up order about to be presented to the H of Lords : (Re London and Manchester, Sfc, Railway Company, Ex] Barber, 1 Mac. & G. 183.) Where a person seeks to have the proceedings in a winding-up sta he is bound to give proper notice to all parties interested in the mi of his intention to move for an order to that effect ; the court ref to make such an order where the notice was, of a motion to charge a call (Re Dover, Hastings, ^c, Railioay Company, Carew's 5 De G. M. & G. 94), and of a motion to be struck off the list of tributories : (Re Eastern Counties, Sfc, Railway Company, Undertv case, lb. 677.) See, also, Re Dover and Deal, Sfc, Company, Ex parte Clifton, lb. Ex parte Coleman, 3 De G. & S. 139. As to the payment of previously incurred costs by those who see stay the proceedings in a winding-up, see Re Metropolitan Car Company, darkens case, 1 Kay & J. 22 ; Re Direct Exeter, Plymouth, Railway Com,pany, Woolmer's case, 2 De G. M. & G. 665. (6) Any, creditor or contributory, §-c.] — ^Where a motion was i on behalf of persons " alleged contributories of the Continental I Corporation," to stay the proceedings in relation to a winding-up, they dechned to admit that they were contributories, the applies was refused with costs. But upon the motion being afterwards renewed by way of ap] they were allowed to proceed with the motion on its merits, on i admitting themselves to be contributories in respect of one share e; (Re Continental Bank Corporation, Re London and Mediterranean h W. N. 1867, pp. 114, 178 ; 16 L. T. N. S. 112, Ch.) 90. Effect of order on share capital of Company limitec guarantee. — Wlien an order has been made for winding a Company limited by guarantee and having a cap divided into shares, any share capital that may not 1 been called up shall be deemed to be assets of the Comp and to be a debt (a) (in England and Ireland of the nal of a specialty) due to the Company from each member the extent of any sums that may be unpaid on any shi held by him, and payable at such time as may be appoii by the court. (a) And to he a debt, §r.]— See sect. 75, supra, as to all Comps under this act. See, also, sect. 134, In/rn. 91. Court may have rcfjard to wi.<:hcs of creditors or con biiforics.—The court may, as to all matters relating to wniduig-up, have regard to the wishes of the creditori contributories(«), ns proved to it by any sufficient evide: and may, if it thinks it expedient, direct meetings(6 of ci'oditors or contributories to be summoned, held and c Official Liquidators. ] 77 ducted in suck manner as tlie court directs, (c) for tte pur- pose of ascertaining their wishes, and may appoint a person to act as chairman of any such meeting, and to report the result of such meeting to the court : in the case of creditors, regard is to be had to the value of the debts due to each creditor, and in the case of contributories to the number of votes conferred on each contributory by the regulations of the'Oompany. (a) The court may have regard to the wishes of the creditors or contribu- tories.'] — On a petition for winding-up on the ground that the business of a Company was carried on at a loss, and that a change had been introduced in the system of working it, a meeting of shareholders, held by the direction of the court had decided that it was expedient that the Company should be carried on. The court being satisfied that the Company was solvent, and that the new system of which the share- holders approved was not inconsistent with the scheme of the Com- pany, declined to make an order for winding-up : (iJe Factaqe Parisien Company, 13 W. R. 380 ; 34 L. J. Ch. 140.) See, also, Re Brighton Hotel Comjjany (Law Rep. 6 Eq. 339), where a creditor's petition was ordered to stand over at the instance of the shareholders, there being reason to beheve that the Company would discharge their liabilities. The court will not make a winding-up order, at the wish of a minority of shareholders against the will of a majority, simply on the ground that the Company has carried on business at a loss : (Re Suburban Hotel Company, Law Rep. 2 Ch. App. 737.) In his judgment in this case. Lord Cairns, L. J., said, " What I am prepared to hold is this, that this court, and the winding-up process of the court, ca,nnot be used, and ought not to be used as the means of evoking a judicial decision as to the probable success or non-success of a Company, as a commercial speculation." (6) May, if it thinks it expedient, direct meetings, Sfc. — Where a share- holder petitioned for a winding-up order, and asked the court to direct a meeting of the shareholders to be held, the court, having dismissed the petition for want of sufficient grounds, held that it could not direct a meeting to be held except with the sanction of the shareholders, a, majority of whom it appeared were opposed to such a coiirse being adopted : (Re Joint-Stock Coal Company, W. N. 1869, p. 82.) (c) Conducted in such manner as the court directs.'] — See, also, sect 149, infra, and General Order of 1862, clauses 45 — 47, post. OFFICIAL LIQUIDATORS. 92. Appointmsnt of official liquidator. — For the purpose of conducting the proceedings in winding-up a Company, and assisting the court therein, there may be appointed a person or persons to be called an official liquidator (a) or official liquidators ; and the court having jurisdiction may appoint such person (&) or persons, either provisionally or otherwise, as it thinks fit, to the office of official liquidator 178 The Companies Ad, 1862. or official liquidators ; in all cases if more persons tlian one are appointed to tlie office of official liquidator, tlie court shall declare whether any act hereby required or authorised to be done by the official liquidator is to be done by all or any one or more of such persons. The court may also determine whether any and what security is to be given by any official liquidator on his appointment ; if no official liquidator is appointed, or during any vacancy in such appointment, all the property of the Company shall be deemed to be in the custody of the court. (a) To be called an official Uqmdator, ^c.J— Where the winding-up is voluntary, the title of this officer is "liquidator" simply, omitting the word " official." See sect. 133, cl. 2, infra. (6) The court having jurisdiction may appoint mich person, ^c] — As to the practice with regard to the appointment of official liquidators, see General Order of November, 1 862, clauses 8 — 19, post. Where a judge in the exercise of his discretion has appointed an official liquidator, the Coiu-t of Appeal will not disturb the appointment : (Re International Contract Company, Law Rep. 1 Ch. App. 523 ; 12 Jur. N. S. 591, Ch. ; 14 L. T. N. S. 843 ; Re London, Bombay, and Mediter- ranean Bank, Law Rep. 1 Ch. App. 526.) See, also. Re ]\ferchant Traders' Ship Loan and Assurance Company, (15 Jur. 981), and compare it with the case next cited. An order having been made for winding-up a Company, A. was pro- posed as official manager by one contributory, B. by another. The chief clerk decided to appoint B., and refused an application by A.'s proposer to adjourn the question to be considered by the judge personally. The judge, on being applied to, refused to disturb the appointment imless it was shown that B. was an unfit person. It was held, on appeal, that as the judge had not personally decided the question which of the two persons proposed was more ehgible, the appointment ought to be dis- charged without prejudice to the judge's re-appointing B., if in the exercise of his discretion he should think fit to do so, Turner, L. J., observing that in procee lings in chambers every party has the unqualified right to have his case he;ixd by the judge personally if he requires it ; and the chief clerk cannot refuse an application to have it so heard : (Re Agricidturist Cattle Insurance Company, 3 De G. F. & J. 194, on appeal.) Which case also see for observations as to the employment of accoun- tants. In the case of Re. General ProrlJent Assurance Company (W. N. 1868, p. 241), Maiins, V.C., laid down the rule that the chief clerk was to sanction the appointment, in all cases, of tlxe official liquidator proposed by the party having the CiU-riago of the order to wind-up, provided he was satisfied that such person was fit and proper to be appointed, without reference to the fitness or qualifications of any other person proposed by other parties. In the case of Re London and Xorthern Tnsiirniice Company (W. N. 1868, p. 182), (Uffard, V.C, observed that under no circumstances did he give the costs of a contest about the appointment of liquidators Whevo an order for the appointment of an official liquidator, was obtamed e.,- parte before an order to wind-up the Company had been Official Liquidators. 179 made, it was discharged : {Re Railway Finance Company, 36 Beav. 473.) 93. Resignations, removals, filling up vacancies, and com- pensation. — Any official liquidator may resign or be removed by tbe court on due cause shown : And any vacancy in tke office of an official liquidator appointed by the court stall be filled by the court : (a) There shall be paid to the official liquidator such salary (&) or remuneration by way of per- centage or otherwise, as the court may direct ; and if more liquidators than one are appointed, such remuneration shall be distributed amongst them in such proportions as the court directs. (a) Shall he filled by the court.'] — See clause 16 of the General Order, 1862, post. (6) There shall be paid to the official liquidator such salary, ^c.]— The remuneration payable to official liquidators is now regulated by the Chancery Order of May, 1868, which is given in extenso in connection with clause 18, General Order, 1862, post. Where an official liquidator appointed in the winding-up of a bank, commenced previously to the order of May, 1868, put in a claim for remuneration which was resisted by the Company, the court, in deter- mining the amoiuit payable to him, acted on the following principles. First. The court, having regard to the circumstance under which the bank stopped payment, and the nature and enormous amount of the assets and dividends, refused to allow payment upon the basis of per- centage. Secondly. It would not increase or diminish the amount of remune- ration by reason of profit or loss having resulted from the operations of the liquidator. Thirdly. Having regard to the order of May, 1868, it held that the amount of the remuneration was to be estimated by the time and labour employed by the liquidalor himself and his clerks ; but in such calcu- lation the services of clerks of the bank, who had been employed by the liquidator, and paid out of assets of the bank in liquidation, was not to be included : (Re Agra and Masterman's Bank, Carman's claim, Law Rep, 7 Eq. 102.) For the circumstances under which the court refused to remunerate an official liquidator, see note imder sect. 97, infra. 94. Style and duties of official liquidator. — The official liquidator or liquidators shall be described by the style of the official liquidator or official liquidators of the particular Company in respect of which he is or they are appointed^ and not by his or their individual name or names ; he or they shall take into his or their custody, or under his or their control, all the property, effects, and things in actions (a) to which the Company is or appears to be entitled, and shall ■perform such duties in reference to the winding-up of the Company as may be imposed by the court. 180 The Companies Ad, 1862. . (a) All tlie property, effects, and'tUngs in actions, Sfc.'] — ^Although all the property of a Company being wound-up, is thus vested in the official liquidator, its position as to suite and actions is kept unaltered, and it may be dealt with just as if no stoppage had occurred, and no liquidation were in progress save so far as this act excepts, see Be Agra and Mastermari's Bank, Anderson's case, Law Rep. 3 Eq. 337. See sect. 203, infra, as to unregistered Companies. 95. Powers of official liquidator. — The ofladal liquidator shall have power, with the sanction of the court, (a) to do the following things ; (&) To bring or defend any action, (c) suit, or prosecution, or other legal proceeding, civil or criminal, in the name and on behalf of the Company : To carry on the business of the Company, (cZ) so far as may be necessary for the beneficial winding-up of the same ; To sell the real(e) and personal and heritable and moveable property, effects, and things in action of the Company by public auction or private contract, with power to transfer the whole thereof to any person or Company, or to sell the same in parcels : To do all acts, and to execute, in the name and on behalf of the Company, all deeds, receipts, and other docu- ments, and for that purpose to use, when necessary, the Company's seal : To prove, rank, claim, and draw a dividend in the matter of the bankruptcy (/) or insolvency or sequestration of any contributory, for any balance against the estate of such contributory, and to take and receive dividends in respect of such balance, in the matter of bankruptcy or insolvency or sequestration, as a separate debt due from such bankrupt or insolvent, and i"ateably with the other separate creditors : To draw, accept, make, and endorse any bill of exchange(gf) or promissory note in the name and on behalf of the Company, also to raise upon the security of the assets of the Company from time to time any requisite sum or sums of money ; and the drawing, accepting, making, or endorsing of every such bill of exchange or pro- missory note as aforesaid on behalf of the Company shall have the same effect with respect to the liabilitj of such Company as if such bill or note had beer drawn, accepted, made, or endorsed by or on behalf o1 such Company in the course of carrying on the business thereof : Official Liq^uidators. 181 To take outj if necessary, in his official name, letters of administration to any deceased contributory, and to do in his official name any other act that may be necessary for obtaining payment of any moneys (A) due from a contributory or from his estate, and which act cannot be conveniently done in the name of the Company ; and in all cases where he takes out letters of adminis- tration, or otherwise, uses his official name for obtaining payment of any moneys due from a contributory, such moneys shall, for the purpose of enabling him to take out such letters or recover such moneys, be deemed to be due to the official liquidator himself : To do and execute all such other things as may be neces- sary for winding-up the affairs of the Company and distributing its assets. (a) With the sanction of the court. 1 — As to the court providing that an official liquidator may exercise any of the powers given by this section without its sanction, see the next section. As to the mode of obtaining the direction or sanction of the court, see clauses 48 — 50 of the General Order, 1862, post. (6) To do the following things.1 — If a liquidator acts without the sanction of the court where the act requires such sanction, he exposes himself to serious consequences. See The Grand Trunk, Sfc. Railway Company v. Brodie, 3 De G. Mac. & G. 146, and Caldwell v. Ernest, 2'7 Beav. 39, 42. See, now, " The Liquidation Act, 1868," post, (c) To bring or defend any action, ^c] — ^In speaking of this clause, the Master of the Rolls said : " The first clause is for getting in property belonging to the Company itself, before the winding-up order is made. In all such cases he must sue in the name of the Company, and where the Company is sued he must defend in the name of the Company ; but where in the course of winding-up he endeavours to get from a con- tributory the amount of his contribution, in those cases the official ■ liquidator may sue also with the sanction of the court, and the sanction of the court I have always given to the official liquidator for that pur- pose:" (Twquand v. Kirby, Law Rep. 4 Eq. 128.) See The Joint-Stock Discount Company v. Brown (Law Rep. 3Eq. 139), where the official liquidator filed a bill in equity in the name of the Company impeaching certain transactions in which the directors of the Company had engaged. Where an unregistered Company is being wound-up under this act, the official liquidator has power under this section, in his own name, and on behalf of the Company, to institute a suit in equity against its directors, for the purpose of compelUng them to make good losses occasioned by their mrsconduot in the management of its affairs : (Turquand v. Marshall, Law Rep. 6 Eq. 112.) Where a Company is in course of winding-up, an action brought in its name cannot be compromised without the sanction of the court : {Re Joint-Stock Discount Company, W. N. 1868, p. 240.) An action having been brought by an officiiil liquidator, in thf name 182 The Gompanies Act, 1862. of a Company that was being wound-up, to recover arrears of calls defendant obtained an order to administer interrogatories to ce: directors of the Company, and for a stay of proceedings. The direi not having answered the interrogatories, an application was mad the official liquidator for an attachment against them : and it was that the directors did not cease to be officers of the Company or commencement of the winding-up, and that they were therefore b( to answer the interrogatories ; and that although the official liquic was not the party who had obtained the order for the interrogate nor a party on the record, he was, under the circumstances, so inter( in the matter as to be entitled to apply for an attachment : (T?ie Mi Bank v. Bayley, Law Rep. 2 Q. B. 37; 36 L. J. 15, Q. B. ; 15 I N. S. 292.) A., being imder liability to a bank upon his acceptance, to fall di July, 1866, took, in the ordinary course of business, an acceptant the bank. This acceptance fell due and was dishonoured on the of June, and on the 23rd of June an order was made for windin; the bank. A.'s acceptance having matured in the hands of the of liquidator, it was held that A.'s right of set-off was not interfered by the winding-up order, and the official liquidator was restrained i enforcing payment, under the winding-up, of A.'s acceptance : Agra and Masterman's Bank, Anderson\t case. Law Rep. 3 Eq. ! 36 L. J. Ch. 73.) In a proceeding against a Company in a winding-up, the ofl liquidator is bound to answer questions and produce documents, ; he had been made a defendant in a suit for the purpose of discov (Re BarneW s Banking Company, Ex parte Contract Corporation, Law '. 2 Ch. App. 850.) See, also, Beardshaw v. Londeshoroiigh (21 L. J. C. P. 17), Russe Croysdill (11 Exch. 128), axiA Armstrong v. Kormandy (19 L.J. Ex. — cases decided under the repealed acts. (d) To carry on the hminess of the Company, Sw'] — As to the ofl liquidator getting a share of the profits of goods finished by hie carrying on the business of a Company, see lie Hill Pottei-y Comp W, N. 1866, p. 339. (c) To nell the real, ^-c] — As to sales, see clause 32 of the Gei Order, 1862. This clause of the section is not to be read in conne( with sect. 161, infra ; and where a Company is being wound-up c pulsorily, the court has no power under this clause to authorise a trai of the Company's business to a new Company, in consideration of new Company's paying the debts of the creditors by instalments ; it seems the only way of carrying out such an arrangement wonlc by converting the compulsory into a voluntary winding-up : (Re Ger Exchange Bank, 15 W. R. 477, M. R. ; "W. N. 1867, p. 68 ; 16 1 N. S. 340.) ' J' ' But it was held by "Wood. V.C, that the court had power under sootion to transfer the assets of a Company under liquidation, to a Company for doforrod payments seoiu-ed by the promissory notes ol new Company : (flc Agra and MaMnitian's Bank, W. N. 1866, p 40( See /;,■ Alexandra flail Company (AV. N. 1867, p. 67) as to a sal the hqiudator of tlio C ompany's property being opposed on the groun „ combmation lunong the purchasers at the auction to depreciate (,/■) Tn /ir<:rr. Ar., a diridend in Ihe mailer of Ihe Imnkniptcy, .Vc Official Liquidators. 183 The official liquidator can only prove for the balance he is entitled to prove for, after allowing a set-off as provided for in the 171st section of "The Bankruptcy Act, 1849," in cases where a right of set-off exists. Accordingly, where a shareholder in a Company has executed a deed of assignment, which has been registered under "The Bankruptcy Act, 1861," the trustees of that deed are entitled to set off a debt due to the shareholder from the Company, against a demand for calls made by the official liquidator of the Company : {Re Ductivorth, Ex parte Cooper, Law Eep. 2 Ch. App. 578 ; 16 L. T. N. S. 580.) See, also, Re Treasury Life Assurance, Ex parte Pepper, 8 L. T. N . S. 533, Ch., on appeal. As to a right of set-off where the shareholder is not bankrupt, see sect. 101, infra. (g) To draw, accept, make, and endorse any hill of exchange, &fc.~\ — The official liquidator is not authorised to do these things without the sanc- tion of the court ; and as to the principles by which the court is guided in granting or withholding this sanction, see the judgment of Turner, Ij. J., in Re Commercial Bank Corporation of India and the East, Smith, Fleming, and Company^s case ; Otedstanes and Company's case, Law Rep. 1 Ch. App. 538. On this part of the section, see Re Agra Bank, Ex parte Tondeur (La-w Rep. 5 Eq. 160), as to the stoppage of payment by a bank not being necessarily a breach of contract to accept bills. At the time when an order was made for winding-up a Company, the Company was the holder of bills accepted by S. & Co., which would become payable in six months. At the same time S. & Co. were holders of bills drawn by the Company, which the drawees, shortly before the winding-up order, had refused to accept. It was held (reversing the decision of the Master of the EoUs), that S. & Co. had no right to set off against each other the present liability of the Company under their dishonoured bills and the future liability of S. & Co. under their accept- ances, nor any right to have the bills retained by the official liquidator, until a right of set-off arose, but that the official liquidator ought to be allowed to negotiate the bills accepted by S. & Co. In his judgment, Turner, L. J., desired not to be understood as intimating any opinion in favoui" of the court having a jurisdiction, under this act (without bill), to entertain an appHcation by S. & Co. to restrain the official Uquidator from negotiating their bills : (Re Commercial Bank Corporation of India and the East, Smith, Fleming and Company's case, Oledstanes and Company's case, Law Rep. 1 Ch. App. 538 ; 12 Jur. N. S. 806 ; 15 L. T. IST. S. 148.) As to right of set-off where both acceptances had fallen due, see Re Agra and Masterman's Bank, Anderson's case. Law Rep. 3 Eq. 337, supra. (A) Any other act that may be necessary for ohtaining payment of any moneys, ^-c] — An order for the payment of money into the bank to an account, is not an order to pay money to any person which can be enforced by writ of fi. fa. under the 6th rule of the 29th Consohdated Order, which only speaks of payment to a person and not to an account. Where in the course of winding-up, an order has been made on a con-. tributory for payment of money into the bank to the account of the official Uquidator, and it is desired to enforce that order by issuing a writ of fi. fa., the course prescribed by the 38th Order of November, 1862, must be followed, and an order obtained for payment of the sum in question to the official liquidator himself: {Re Leeds Bankinj Company, Law Rep. 1 Ch. App. 150 ; 35 L. J. Ch. 311 ; 12 Jur. N. S. 304.) 18-i. The Cuinpaiiics Ad, 1862. 96. Biscretlou of official liquidator. — The court, may ] vide by any order (a) that the official liquidator may exer any of the above powers without the sanction or in vention of the court, and where an official liquidate) provisionally appointed may limit and restrict his pov by the order appointing him. (a) The court may provide hy any order, Src] — ^As to the com making a winding-up order directing that the liquidators should b liberty to do all such acts as are provided for by this section, wit the sanction or intervention of the court, see Re South Kensington 1 Company, W. N. 1868, p. 16. 97. Appointment of solicitor to official liquidator. — ' official liquidator may, with the sanction of the co appoint a solicitor (a) or law agent to assist him in the ] formance of his duties. (a) Appoint a solicitor, ^c.]— Where the official liquidator appi as his solicitor the solicitor of the petitioner who has obta the winding-up order, he will be held guilty of culpable n gence if any of the interests entrusted to his charge snffei consequence of such solicitor having given him improper advice having failed to give him such advice as an impartial solicitor sh give under the circimistances. In a recent case that came b( the Master of the RoUs (W. N. 1869, p. 25), the facts were as foUc A., a director and chief promoter of a Company, petitioned obtained an order for its winding-up. The Company had done business, and there were only a few debts in addition to a sum of mi owing for a tea estate purchased by the Company from B. In ord( pay off this sum of money, it was proposed to sell the estate, and the balance by a call on the shareholders, when a proposition was u that the claims of the vendor B. should be compromised for il This arrangement was approved of by the official liquidator, and at instance confirmed by the court, and 1500/. was paid in respect of 4.500/. The shareholders upon this intervened, and, bringing the ms before the court, contested the propriety of the compromise. It shown that the tea estate, nominally the property of B.. in re belonged to A. the petitioner in the winding-up, and the court came U conclusion that A. had got up the Company in order to sell it the es and petitioned to have it wound-up in order that he might obtair purchase-money, and also that the purchase-money, and even the 4{ to be taken as a compromise, were both greatly in excess of the value. The Mastor of the RoUs sot aside the whole transaction, ordered A. to refund the 1500/., but A. in the mejinwhile became bi rupt. The result was, that the tea estate tmned out to be w nothing, and n call li.ul to bo made on the shareholders in order- to the expenses of tlu- Company. A question then arose as to whether official liquidator should bo jiJlowed any remuneration, and in deci that question the ISlaster of tlio Rolls thus expressed himself : "1 1 iilioady (lotormmea that he must have all his costs and money on pocket ; Inil ought he to have any remuneration ? I think not nnquoationably true tliat he has acted with perfect good faith an has merely made an error of judgniont, and, in ordinary ciwes Ordinary Powers of Court. 185 would not deprive him of his reward. But in this case he has not taken sufficient care to be well advised, and in this he has been guilty of culpable negligence. This arises from the parties to the winding-up having followed what, I regret to say, is too usual a course, but one which the court cannot control, viz., the solicitor of A. presented the petition to wind-up the Company and obtained the order. He proposed Mr. C. as official hquidator. Mr. C. is accordingly appointed official liquidator, and, in return, Mr. C. appoints the same gentleman to be his sohcitor in the winding-up. The consequence is that there is no adverse examination of the affairs on both sides, and no due attention to the interests of the Company when they come in conflict with those of the promoters of the petition. " The same solicitor acted for all parties ; he proposed the compromise on behalf of A. ; he advised C. to approve the compromise ; he did not inform C. that if he pleased he might set aside the whole transaction relating to the sale of the property. If the official liquidator had employed another solicitor (as he has since done), his solicitor would have told him that the compromise was to be regarded, subject to this consideration — that if he pleased he might, on behalf of the Company, set the whole thing aside. " I think that the official liquidator must, in this state of circumstances, be answerable for the wrong advice he received, and on which he has acted ; and that I cannot give him remuneration for an error which was occasioned him, iu consequence of his not employing a solicitor whose single duty would be. to canvass strictly the transactions between the promoters of the petition and the Company itself. It is this that has caused the principal expense, and the only loss sustained by the Company." Where the official liquidator changes his solicitors, and the assets are not sufficient to pay the whole of his costs, the bills of costs of the successive solicitors wiU, as a general rule, be paid rateably so far as the assets will extend ; but where the first solicitor gave up documents to the second solicitor upon an undertaking that his costs should be paid out of the estate, it was held that his costs should be paid in full in priority to those of the second solicitor: (Re Audley Hall Cotton- Spinning Company, Law Rep. 6 Eq. 245.) ORDINARY POWERS OF COORT. 98. Collection and application of assets. — As soon as may be after making an order for vsinding-up the Company, the court shall settle a list of contributories, (a) with power to rectify the register of members in all cases where such rectification is requrred(&) in pursuance of this act, and shall cause the assets of the Company to be collected, and applied in discharge of its liabiUties. (a) The court shall settle a list of contrihutories.'] — The General Order of November, 1862, post, prescribes the mode of settling the list of con- tributories. The list is prepared in the first instance by the official liqui- dator from the register and other materials at his command, and left at the chambers of the judge in whose court the winding-up has commenced : (see Rule 29.) This list may be varied or added to, from time to time, by leave of the judge. Upon the list being left at the chambers the official liquidator obtains an appointment for the judge to settle the same, and 186 The Companies Ad, 1862. has to give notice in writing of Buch appointment to every person included in the list, stating in what character and for what number of shares or interest he is included, and similar notices are to be given when the list is varied or added to. Four clear days' notice must be given before the day of appointment : (see Rule 30.) By Kule 31 the result of the settlement is to be stated in a certificate by the chief clerk. Rules 60, 61, and 62 have reference to the attendance and appearance of persons for the time being on the list, at the proceedings relating to the winding-up. As to who are contributories, see sects. 74 — 78. It appears that every person whose name is found upon the register of the Company, at the time when the order for winding-up is made, is a shareholder and liable to contribute towards the payment of the debts of the Company, to the extent of the sums due upon Ms shares (see sect. 38, supra), unless he can prove that his name was put upon the register without his consent. As to what constitutes an agreement to become a shareholder in a Company, the grounds on which an agreement may be rescinded, and how the right of rescission is affected by a winding-up, see sect. 23, supra. Where a person has actually ceased to be a member of a Company, for a period of one year prior to the commencement of the winding-up, he cannot, under any circumstances, be made a contributory. If the winding-up commences, however, before the expiration of the year, he may be made liable to contribute to the payment of such debts and liabilities as were incurred before he ceased to be a member, but he cannot be made thus liable unless where it appears that the existing members are unable to satisfy the contributions required from them : (see sect. 38, supra.") When a person agrees to become a member of a Company, is placed upon the registry, and afterwards acts as a shareholder, he cannot resist being placed upon the list of contributories, whatever may have been the circumstances under which the shares were transferred or allotted to him. The transfer being bad as a deed would not affect the question of his liability, nor even dishonest conduct on the part of officers of the Company : ( Re Internatioiml Contract Company, Langer's case, 37 L. J. Ch. App. 292.) As to the mode of ascertaining the liability of past members, see sect. 38, supra. Application to remove Xame from List. Any application, to take a contributory off the list, must be made by motion midcr the winding-up, notwithstanding the pendency of sub- stantive proceedings for that purpose : (Wihon v. TTie Xatal Iniestmeni Company, 36 L. J. Ch. 312.) A. and others, who all stood in the same position, were placed by the Master of the Rolls on tlio list of contributories. A. appealed, and the order as to him having been reversed, it was held to be unnecessary tc rehe:ir the cases of the others, as they would, in chambers, be strucl off the list : {Rv National Assurance and Inrestment Association, Ex parU lilimday, 31 Boav. 20(i,) The general ride of the court, that costs follow the result, applies ir the abseueo of special circumstances, to cases of contributories under i winding-up, who have unsuccessfully opposed application to place then on tlio list : ( Re Birkhcck Li/,- Assurance Company, Ex parte Barry 2 l)n-w. & Sm,, ;!1'1 ; 11 Jur. N. S. 76, Ch. ; 11 1. t! N. S. 691.) Ordinary Powers of Court. 187 See, also, Re London and Provincial Starch Company, Gower's case (Law Rep. 6 Eq. 77), to the same effect. When the holders of fully paid-up shares, who had successfully re- sisted an apphcation that their names should be placed on the list of contributories, appHed to have the costs paid out of the assets, after the petitioners in the winding-up had been paid theirs, the Master of the RoUs refused the apphcation with costs, saying that the petitioners were the only persons to whom he gave any priority in respect of costs : (Be Marlborough Club Company, Ex parte Percival, Law Rep. 6 Eq. 519.) When an application is made to the court to substitute one person for another on the Ust of contributories, and both parties are equally solvent, So that it is a matter of indifference to the creditors and contributories which of them is made a contributory, it is the duty of the liquidator to appear by one counsel only, and to take no part in the argument, and it seems that, in such a case, the unsuccessful party wiU be ordered to pay the costs of the liquidator : (/fe Overend, Ourney, and Company, Musgrave and Hart's case, Law Rep. 5 Eq. 193.) Two persons, an original allottee of shares and a purchaser of shares, separately moved the court to discharge an order, declaring them con- tributories in the matter of a Company which was being wound-up. Their motions were refused with costs, and the Vice-Chancellor's order contained a direction requiring them (jointly in point of form) to pay costs to the hquidators ; on appeal to the House of Lords, this form was held to be erroneous, and it was held that each must be made an- swerable for the costs incurred in his own petition : (Oate v. Tarquand and Harding, Peek v. the Same, Re Overend, Gurney, and Company, Law Rep. 2 H. L. 325.) Although a person's allowing his name to remain for a length of time on the list of contributories of a Company without making any objection, may be used as evidence against him, that it was rightly placed there ; yet, where he is not, and never was, a shareholder, it does not raise any equity against his applying to have it removed, where no loss is sustained by the estate which would have been avoided if the appli- cation had been made earlier. And it is questionable whether, even in the case of such loss being sustained, any such equity would arise : (Re Mexican and South American Company, ShewelVs case, Law Rep. 2 Ch. App. 387 ; 36 L. J. Ch. 353 ; 16 L. T. N. S. 194.) See, also. Re Alexandra Park Company, Harts case. Law Rep. 6 Eq. 512. Rehearing Application. Certain alleged contributories moved, on the ground of fraud in the prospectus, to have their names taken off the hst. The motions were refused, with costs, and the order then made was enrolled for appeal to the House of Lords. Pending the appeal, the apphcation was renewed in the court below, on several grounds, impugning the constitution of the Company, the vaHdity of the winding-up order, and the appointment of hquidators, and on the ground of variance between the prospectus and Memorandum of Association, the applicants averring that the objections so raised had been discovered since the hearing of the previous motions. It was held that the motions could not be reheard on the alleged discovery of a variation between the prospectus and Memorandum of Association, and that until the winding-up order was discharged (which could not, after the enrolment, be done by the cotu-t below), no ques- tion could be raised affecting the constitution of the Company, or the 188 The Companies Ad, 1862. validity of proceedings in the winding-up. And the motions were missed, with costs : (Re Ooerend, Gumey, and Company, Ex parte and Peek, 36 L. J. 413, Ch. ; W. N. 1867, p. 101 ; 16 L. T. K S. 148, < Application on the Ground that Company wax improperly constitutec After the Memorandum of Association of a Company was exec by the seven original subscribers, it was taken to the office of Registrar of Joint-Stock Companies for registration. Some words ii memorandum, the effect of which was to make the objects for which Company was established very extensive, were objected to by the r« trar, who refused to register the memorandum unless those words ■ struck out. The solicitor's clerk who brought the memorandum registration thereupon struck out with a pen the words in question, the memorandum so altered was then and there registered, and registrar gave a certificate of its registration. It was held that the in which the alteration was made, and the receiving for registration memorandum so altered, was in the very highest degree censurable, that, so far as the original parties to the document were concerned alteration so made entirely neutralised and annihilated the orij execution of the document. But, inasmuch as the 18th section of act makes the registrar's certificate of the incorporation of a Com] conclusive evidence that all the requisitions of the act in respec registration have been complied with, a person, who appUed for obtained shares in the Company after its incorporation, could not es from liability as a contributory upon the ground that the Company not duly constituted (Re Barned's Banking Company, Ped's case, Rep. 2 Ch. App. 674 ; 16 L. T. N. S. 78, Ch.). For the same reason court refused an application to remove the names of contributorie the ground that the Company's ^lemorandum of Association had been signed by seven persons, as required by sect. 6, supra: (Oak Turquand, Law Rep. 2 H. L. 325.) Application on the Ground of Infancy. On the ground that an infant cannot be bound by a contract th not for his benefit, he will not, in the absence of fraud, be made a tributory on the winding-up of a Company, on whose register his r has been placed, but when he holds shares as a transferee, the pe who has transferred them to him will be made a contributory in place. Where ten shares were standing on the register of a Company ir name of an infant, upon tlie Company being wound-up, the court the application of the liquidators, removed the name of the infant i the register in respect of the shares, and substituted that of the tr feror, although the ton shares originally formed part of a batch of eij shares -wrhich had been purchased on behalf of the infant, all of w eighty shares had, prior to the winding-up, been sold by the infant purchase-money rocoivod, and the transfers executed by all the chasers, and the transferees of all (except the ten shares in quasi entered on the register of shareholders: (Re Impaial Mercantile C Association, Ciirti.i's case. Law Rep. G Eq. 455.) See, also, Re China Steamship and Lahuan Con! Company, Copper's (Law Rep. 8 Ch. App. 458), where the transferor of shares to an in was placed on the list of contributorics in the winding-up, although infant triinsforoo had been duly registered as the owner of the sha (Re .loint-Siiirk plxeoiint Companii. Mran's cnne. Law Rep, .S Ch. j Ordinary Poweva of Court. 189 459 ; 15 W. R. 112i), as to which see Re Blakely Ordnance Company, Lumsden^s case (Law. Rep. 4 Ch. App. 31, infra') : and Re Electric Telegraph Company of Ireland, Reid's case (24, Beav. 318). But a transfer to an infant is not a nullity so as to be void ab initio, it is only voidable, and if the infant on coming of age elect to take the shares, it is to be presumed he may do so. L. transferred fifty shares into the name of H., an infant, not known by him to be such, who was also the transferor of a large number of other shares in the same Company. H. was registered as the holder. H. attained twenty-one more than five months before the winding-up order, and in the interval transferred some of the other shares. He was settled on the list of contributories for the remaining shares, and did not at first raise the defence of his having been an infant ; but fom? months afterwards took out a summons to have his name taken off the list on that ground. The official liquidator then applied to have the name of L. placed on the list instead of that of H., in respect of the fifty shares. It was held (affirming the decision of the Master of the RoUs), that on the case before the court, H. must be deemed to have affirmed the transaction after he came of age, and that the application must be refused, without prejudice, however, to any application H. might make, if he thought fit to make one : {Re Blakely Ordnance Company, Lums- den's case. Law Rep. 4 Ch. App. 31.) An infant shareholder attained her majority six months after the commencement of the winding-up of the Company, and was after due notice settled on the list of contributories, more than a year after the filing of the certificate of the settlement of the list, and nearly three years after she came of age she applied to have her name removed from the list. It was held (following Shewell's case, supra), that she had not by delay waived her right to have her name removed from the list : Re Alexandra Park Company, Harfs case, Law Rep. 6 Eq. 512.) See, also. Re Bamed's Banking Company, Delmar's case (W. N. 1868, p. 247), to the same effect as the last case. l^rustees. When a person is placed upon the register by his own act as the holder of shares, and his name is on it when the Company is wound-up, he cannot escape liability as a contributory, on the ground that he is only a trustee of the shares for another, no notice of any trust being admissible on the register : (see sect. 30, supra.) A person, into whose name shares had been transferred as a trustee for the Company, was held liable as a contributory, although he might have a right to be indemnified by the Company for any payments made by him in respect of the shares: (fie Imperial Mercantile Credit Association, Chapman and Barker^s case. Law Rep. 3 Eq. 361.) See Re Universal Banking Corporation, Ex parte Challis and others (17 L. T. N. S. 637), to the same effect. See, also, Re International Contract Company, Levitds case, Law Rep. 3 Ch. App. 36 ; Re East of England Banking Company, Ex parte Btiqg, 2 Drew. & Sm. 452 ; 11 Jur. N. S. 616 ; 35 L. J. Ch. 43, and sect. 30, supra. If, however, the name of the trustee is not actually entered upon the register, he will not be liable, although he may have agreed to take the shares on behalf of the Company. The directors of a Company, in order to qualify S. to become a director, ordered W., secretary of the. Company, to transfer to S. certain 190 The Companies Ad, 1862. shares belonging to the Company, and then standing in the name oi S. executed the transfer, and attended as a director, but all the f( prescribed for a transfer were not complied with. It was held thai transfer was only colourable, and that S. was not liable to be ma contributory: {He Waterloo Life, Sfc, Company, Saunders's case, 10 N. S. 240, Ch., on appeal ; 10 L. T. N. S. 3.) When shares are held in trust, the cestui rjue trust is not liable t placed on the list of contributories, whatever may be his liabHitii his trustee. Companies. There is nothing to prevent a limited Company from becomii member of another limited Company, if its own Memorandum Articles of Association authorise it to do so, and being made a co: butory on the winding-up of the latter : (Re Bamed's Banking Comp Ex parte Contract Corporation, Law Kep. 3 Ch. App. 105.) Even though a Company's Memorandum and Articles of Associs do not directly authorise it to become a shareholder in another C pany, yet it may, under certain circumstances, be made liable i contributory, as may be seen by the following case. A banking Company I., the articles of which in general terms the directors very ample powers of management, and enabled the: do everything incidental to the business of banking, advanced mone the deposit of shares in Company A. The directors becoming alai by a judicial opinion that the shares remained within the order disposition of the depositors, passed a resolution to have the shares tr ferred into the name of Company I. or its manager. They were ace ingly transferred into the name of Company I., the transfers b executed on behalf of Company I. by an agent, and not under Company's seal. The Company was registered as a shareholder, some of the shares, and received the purchase-money, and received dividends on the rest. Upon Company A. being afterwards wound it was held, that although the acts of ownership exercised by Com] I. over the shares would not have prevented its repudiating them il transaction had been absolutely prohibited by their memorandum articles, and so ultra vires. Company I. was rightly placed on the li contributories, for that, although buying the shares of another C pany as a speculation, would have been ultra virus, it was within powers of the Company as bankers to advance money on the depos shares, and to do all such acts as were reasonable and proper for ma the security available. It was also held, that the fact of the trai not having been accepted by the Company under its seal was immate (Re Asiatic Banking Corporation, Royal Bank of India's case. Law ' 4 Ch. App. 252.) Forfeited Shares. Where the regulations of a Company provide for the forfeitui shares, and all the acts of forfeiture are complete, the mere fact the naaiie of the shweholdor has not been removed from the regi will not make him liable as a contributory in respect of the si forfeited: (He Taviflock Ironwork.^ Companu, Liisier's case. Law ' 4 Kq. 28:1 ; 86 L. J. Ch. 616.) ^ ." ./ On th^^ subject of forfeiture and cancellation of shares generallv p. 28, ante. ■' Illeyal Sidxiicision of Shares. Whn-e shares ^^■m■ illegally subdivided (before the Companies Ordinary Powers of Court. 191 1867) into shares of less nominal amount, it was held that where the original shares could be traced and identified, the shareholders were properly placed on the list of contributories : {Re Neiv Zealand Banking Corporation, SewelVs case, Law Rep. 3 Ch. App. 131.) Where shares were illegally subdivided (before the Companies Act, 1867) into shares of less nominal amount, and were thus transferred, it was held, in a winding-up of the Company, that, inasmuch as these shares could be identified on the books of the Company as being the shares into which the original shares had been divided, the transferee should be placed on the list of contributories : (iie Finance Corporation, Ex parte Feiling, Holmes, and others, Law Rep. 2 Ch. App. 714.) Shares taken conditionally. A Company, formed for the purpose of working a coal mine, of which C was the owner, entered into a contract with him for the purchase of the same. By the agreement it was stipulated that a part of the purchase-money should be paid by an allotment of shares. The Com- pany induced C. to take 250 additional shares, on the representation that a third person would, in that event, subscribe for 500 shares ; and it was also suggested by the Company, that it would give more solidity to the Company if these shares were taken in the name of B., a friend of C, which was acceded to by the former, on condition that he would incur no habHity in respect of them. No minute appeared in the Company's books of this understanding, but the shares were allotted to B., who was registered as the holder of the shares, and the deposit was paid by C. Subsequently C. took proceedings at law against the Company, on the ground that the agreement had not been carried out. The action was compromised, upon the terms that the 250 shares held by C. should be given up to the Company, which was accordingly done, and transfers were executed by C. in blank. The name of B. was struck out of the share ledger, but not from the register of shareholders. It did not appear that any of the transactions had been sanctioned by the general body of shareholders. On the Company being wound- up, the name of B. was put on the list of contributories. A motion, by way of appeal in Chancery and Bankruptcy, to remove his name from the list, was refused : (iie Moseley Green Coal Company, Ex parte Barrett, 10 Jur. N. S. 711, Ch., on appeal ; 10 L. T. N. S. 594.) If a person is induced to take shares on the faith of a promise by the promoters of a Company, which promise is not kept, he is nevertheless a contributory, his remedy being only against the persons who made the promise : {Re United Kingdom Ship Owning Company, Felgate''s case, 2 De G. J. & S. 456, on appeal.) Where a shareholder in a banking Company, under an arrangement for reconstituting the bank, exchanged his shares with the knowledge and consent of the directors for shares in the new concern upon the faith that he should be under no further liability in respect of the shares given up by him, and his name was removed from the register of shareholders, it was held, on the winding-up of the banking Com- pany, that he was not relieved from his liabihty in respect of its debts, and that his name must be placed on the list of contributories : (iJc Continental Bank Corporation, Austen^s case, W. N. 1867, p. 138, afiirmed on appeal, p. 244.) A. and B. held each 500 original shares in a Company. It was after- wards determined that new shares in the Company should be created. One thousand original shares were to be transferred to C . , who was thereupon to 192 The Gompanies Act, 1862. join the direction of the concern. That arrangement was effecte A. and B. transferring their original shares to C. ; and by each re ing an allotment of 600 of the new shares (which were duly create lieu of the old ones, and on being paid 10s. per share by the Com] C. afterwards sold his 1000 shares at a large profit, but never join© concern. The Company was ordered to be wound-up, when A. ai each repudiated their liability in respect of their 500 shares, oi ground that they only consented to take them if C. joined the direc It was held that the test of the liability of A. and B. to be placed o list of contributories was, whether specific performance of their a ment to take the shares could have been decreed against them ; that, as the court thought it could not, they were not contribute (Re London and Hamburg Bank, Ex parte Preston, 15 L. T. N. S. Ch. ; W. N. 1867, p. 10 ) With regard to qualified contracts for shares and the liabi incurred by persons entering into them, see further, p. 83, ante. By " The Companies Act, 1867," s. 25, post, every sbarehold liable for the full amount of his shares in cash vmless the same shs otherwise determined by a contract, duly made in writing, and filed the Registrar of Joint-Stock Companies. Holders of fully paid-up Shares. A holder of fully paid-up shares in a Company, although indebt the Company, cannot be put on the list of contributories for the pui of enforcing payment of the debt : (Re Marlborough Club Comj . Law Rep. 5 Eq. 365.) As to the liability of a subscriber of the Memorandum of Associ for paid-up shares to be made a contributory in respect of these sh see Re South of France Company, Baron de Beville's case (Law Rep. ' 11), p. 80, ante. The directors of a Company redeemed at a discount a debentu the Company held by H., a director, two years before it was pay and allowed H. to set off the redemption-money against a call ther on his shares. Two months afterwards the Company was ordered wound-up by the court, and H. sought to avoid liability on the gr that his shares were fully paid up. It was held that the set-off i not be allowed, and that the shares were not fully paid up, thi remained liable to pay the call, and shoxild be placed on the 1 contributories in respect of his shares "paid in part :" (Re Masons' Tavern Company, Habershon's case. Law Rep. 5 Eq. 286.) Scripholders. Where a Company's articles make a tlistinotion between men and scripholders, a scripholder will not be made liable as a contribi if his name is not entered on the register. The Articles of Association of a Company provided that the direi instead of entering allottees of shai-es on the register of members, i issue to them scrip certificates entitling the holders to the shares tl named, subject to the payment of the instalments at the time tl mentioned, and that the word " shareholder " should include scriphc that the shares for which sci-ip was issued should be transferab delivery of the scrip, and the holder of the scrip should be the person recognised as entitled to the shares, and that the scriphold surrendering his scrip should be entitled to be entered on the re of members in respect of the shares mentioned in the scrip cortil Ordinary Powers of Court. 193 The Company being wound-up, it was held that a scripholder was not a contributory ; (ile Litthhavipton, Havre, and Honflew Steamship Company, Ormerod's case. Law Rep. 5 Eq. 110.) Invalid Transfers. A petition, presented by shareholders to wind-up a Company, was dismissed, upon condition that the Company paid the costs of all parties to the petition ; and upon the suggestion of the court a committee was appointed to investigate the affairs of the Company. The committee reported that it would be for the benefit of the shareholders that the Company should go on, and that a voluntary loan should be obtained from the shareholders. B., a large shareholder, was dissatisfied with the report, and with the statement of accounts upon which it was founded, and he informed the directors that unless a bona fide purchaser was obtained for his shares, and his oiiier claims against the Company were satisfied, he would present another petition to wind-up the Com- pany. After some negotiations an officer of the Company took a transfer of the shares, representing, as B. alleged, that he purchased them on his own account. In fact, he purchased them at the instance of the directors, and by means of money belonging to the Company, and no hona fide purchaser could be obtained. It was held that B.'s name should be placed upon the list of contributories ; (J2e Consols Insurance Association, Benham's case, 11 Jur. N. S. 381, Ch. ; 12 L. T. N. S. 224) In Clack's case (W. N. 1866, p. 275), where a scheme was formed by one Company to purchase the business of another Company, and the scheme was altogether ulti-a vires, and the dissentient shareholders in the pm'chasing Company transferred their shares to its secretary, and received back the money they had paid on their shares, the transferors were held to be contributories on the winding-up of the purchasing Company. On the subject of transfers generally, see p. 55, et seq. (V) With power to rectify the register of memhers in all ca.ses where such rectification is required, §-c.] — In rectifying the register under this section it must be read in connection with sect. 35, supra. In his judgment in SicheWs case (Re Joint-Stock Discount Company, Law Hep. 3 Ch. App. 122), Cairns, L. J., in refusing an appHcation, by the official liquidator of a Company in course of liquidation, for the rectification of the register, observed, "In my opinion the reference in the 98th section to a rectification of the register cannot mean that the court in winding-up a Company is to rectify the register ex mero motu ; it must mean that the court may exercise the judicial power conferred by the 35th section, having regard to who is the appHcant, and to aU the circumstances of the case, otherwise how could the court, according to the language of the 35th section, be satisfied of the justice of the case ? " See the cases under sect. 35, supra, as to the circumstances under which the court will order the register to be rectified. The mere fact that a person's name is on the register is not enough to make him liable as a contributory. If he has not agreed to become a member of the Company (as to which see sect. 23, supra), he cannot be made a contributory, and is entitled to have his name removed from the register, however it may have been placed there. B., without authority, applied on behalf of C, and as his agent, for shares in a Company, and C. was thereupon registered as a shareholder. On the shares being allotted, C. wrote to B. repudiating the transaction, 194. The Gom/pamies 4c/, 1862. and asking him to "rectify the mistake." No steps were taken b; and afterwards, on a call being made, B. wrote to the secretary o\ Company informing him of the mistake, and requesting that his i might be taken off the register. This was not done, and subsequently the Company being wound-up, C. applied to the court to have his i removed from the list of contributories. It was held tha,t as C.'s i had been wrongfully placed on the register by no act of his own, an the Company were made aware of that fact, it devolved upon them, u sect. 35, supra, to have had it removed before the winding-up ; bt this had not been done, C. was now entitled to its removal from thi of contributories, and to costs from the liquidators: (Re Patent Company, Ex parte White, 16 L. T. N. S. 276.) See, also, Re Canadian Oil Company, Fox's case. Law Rep. 5 Eq. : But if a person's name is placed on the register of a Company, 1 ever wrongfully, and he allows it to remain, and does acts as a si holder, he would probably be held boimd by acquiescence ; V. C. W touching on this point in Chapman and Barker's case (Re Imp Mercantile Credit Association, Law Rep. 3 Eq. 361), observed : ' important question might arise as to how far a person, after lie ki that his name has been wrongly placed upon the register, may by of acquiescence — such as accepting a dividend or the like — ^be to be liable. It is like any other case, he cannot approbate and re bate. If for his own convenience he adopts the act, he must be li for the consequences of the act. The question whether he has, oi not adopted it, is wholly one of degree and of evidence for the court Removal of Transferor's Kame. If it were not for the above provision, and the powers conferre< the act (sects. 131 and 153, infra), upon the court and the liquids in the respective cases of a winding-up by the court, and a volun winding-up, of permitting transfers of shares after the commencei of a windmg-up, few questions could arise between the transferor transferee of shares, as to which was liable to be made a contribul The only persons liable would be those whose names were on register, and whatever claim for indemnity a registered sharehc might have against a purchaser or transferee of his shares, he w have no right to demand that the latter, if not registered when winding-up commenced, should be placed on the list of contributo] but as in the case of a trustee would be liable to contribute in res of the shares that stood in his name. The general principle is iUustr by the following cases decided with regard to Companies not under act: (Re Court Grange Sihrr Lead Con)pa7iy, De Castro's case, 2 N. S. 1203 ; Re Royal British Bank, Ex parte Walton, Ex parte . 3 Jut. N. S. 853 ; Re Wrysgan Company, Uumby's case, 5 Jur. N. S. i Chnrtres' case, 1 De G. & S. 581.) Under the above provision, however, the court has jurisdictio alter the register after the windiug-up has commenced, and ren names from, or enter them on it. The principles on wliich the coiu-t acts, in deciding on applicai by transferors for the rectification of the register after a windinj of the Company has commenced, were clearly laid down by the Ms of the Rolls in Walker's case (Re Anglo-Danuhian Steam Navigation Cdllicry Conipaiii/, Law Rep. 6 Eq. 30), as follows : " The very ol and purpose for which the act is framed, as shown by the clauses oi act, IS to enable you to guard against this particular emergency [i.e.. Ordinary Powers of Court. 195 transferor's name being left on the register by the default of the Company] , and to enable the transferor to take care that the Company shall make a proper entry in the register of the transfer of the shares. In cases where there has been no fault at all, on the part of the transferor, and the fault is merely that of the Company, the court directs the transfer to be made, or the register to be amended, thus doing what ought to have been done. When there has been no fault on either side the register remains as it was — when the fault is on both sides, the register also remains as -it was." In the following cases, which have already been referred to, the transferor of shares who was on the register at the time of winding-up was held liable as a contributory : (Re London, Hamburg, and Continental Bank, Ward and Henry's case (Law Eep. 2 Ch. App. 431, reversing S. C. Law Kep. 2 Eq. 226); Re Contract Corporation, Head's case and White's case (Law Rep. 3 Eq. 84, 86) ; Re Joint-Stock Discount Company, SliepTverd's case (Law Rep. 2 Ch. App. 16, afBrming S. C, 2 Ec[. 664); Re Imperial Mercantile Credit Association, Marino's case (Law Rep. 2 Ch. App. 596 ; 36 L. J. Ch. 468 ; 16 L. T. N. S. 368) ; Re Overend, Gurney and Company, Musgrave and Hart's case (Law Rep. 5 Eq. 193) ; Re English Joint-Stock Bank, MarzettCs case (W. N. 1866, 399) ; Re London, Hamburg, and Continental Exchange Bank, Emmerson's case (Law Rep. 1 Ch. App. 433, reversing S. C Law Rep. 2 Eq. 231) ; Re Overend, Gurney and Company, Walker's case (Law Rep. 2 Eq. 554) ; Re Joint- Stock Discount Company, Read's case (Parrish's shares), (36 L. J. Ch. 472 ; W. N. 1867, p. 114) ; Re Anglo-Danubian Steam Navigation and Colliery Company, Walker's case (Law Rep. 6 Eq. 30) ; Re Joint-Stock Discount Company, Shipman's case (Law Rep. 5 Eq. 219). In the following cases the transferor was held not a contributory, and the name of the transferee was substituted for his : Re Joint-Stock Dis- count Company, Nation's case (Law Rep. 3 Eq. 77) ; Re Overend, Gurney, and Company, Ward and Garfifs case (Law Rep. 4 Eq. 189) ; Re General Floating Dock Company (W. N. 1867, p. 27) ; Re Joint-Stock Diicount Company, Reed's case (Smallbone's shares), (W. N. 1867, p. 114 ; 36 L. J. Ch. 472) ; HilTs case (W. N. 1867, p. 137) ; Colonial and General Gas Company (W. N. 1867, p. 118). Where a transfer of shares in a Company has been made with perfect bona fides on both sides, and has been registered, but there has been some defect in the form of the transfer, the question arising upon that is- not one which the official liquidator of the Company has a right to bring forward, in order to rectify the register of shareholders by striking off a name that is upon it. The question being simply one between the transferor and transferee : (Re General Floating Dock Company, 15 L. T. N. S. 526, Ch. ; W. N. 1867, p. 27.) In his judgment in this case, the Master of the RoUs observed that the mere omission of the transferee to sign a transfer (this was the defect in the form of the transfer) which was bond Jide, and had been registered before the com- mencement of the winding-up, would not entitle either the liquidator or the parties themselves to have the register altered. On an application under this and sect. 35, supra, to rectify the register of shareholders, the court will have regard to who is the applicant ; and where, owing to the default of the Company, a transfer has not been registered before the winding-up, the court will not rectify the register on the appUoation of the official liquidator, whatever may be the right of the transferor to have it rectified, for the official liquidator in such a ease represents only the Company, to whose default the error is owing,- the body of contributories having no interest in the question except 196 The Gompomies Act, 1862. througlithe Company, and the creditors having no direct equity, ag a person whose name has never been held out to them : (Re Joint-, Discount Company, SichelVs case, Law Rep. 3 Ch. App. 119.) Although there may have been unnecessary delay on the part Company in registering a transfer of shares, no order for the rect tion of the register can be made under this or the 35th section, o: apphcation of a transferor who is also in default, after the Compan been ordered to be wound-up. A shareholder in a Company resisted an action for calls on the gr of alleged misrepresentations contained in the prospectus, and brought an action against the promoters and directors to recover mc previously paid in respect of shares. Both actions were, with the i tion of the Company, compromised, one term of the compromise 1 that the shares should be transferred to one of the directors. A tra was accordingly executed by the shareholder and the transferee, deposited with the attorney, who acted for the Company and the d tors in the actions, but no further steps were taken in the matter, two years after the Company was ordered to be wound-up. It was that the shareholder whose name remained on the register was a cc butory; Fox's case (see next case) being held distinguishable oi ground, that in it the court determined that Fox ought never to been registered as a shareholder: (Re Anglo-Danulnan Steam Naiiy and Colliery Compavy, Walker^s case, Law Rep. 6 Eq. 80.) A shareholder, being in a position to file a bill against a Com- to have his name removed from the register, wrote to the secr( declining to have anything further to do with the Company, and questing that his deposit might be returned. The deposit was retm but his name remained on the register of shareholders. Eigl months afterwards, on the Companybeing ordered to be wound-U] was held not to be a contributory : (Re Canadian Xative Oil Comj Fv.r''s case, Law Rep. 5 Eq. 118.) A shareholder in a Company executed a hond tide transfer of shai it to a broker, who did not then disclose the name of the real trausf A petition was afterwards presented to wind-up the Company, the \isual advertisements thereon duly issued ; after which a que arose between the parties as to who was the real transferee of the sh A motion was then made on behalf of the transferor of the shares, w name was on the list of contributories, to remove his name, an insert the name of the broker instead. It was held that the nait the transferor must remain on the list ; that the question betweei parties could only be decided on a suit regularly instituted ; and the broker was not entitled to his costs of the motion : (Re Lo anil HamhiirgBank, Ex parte Watkins, li L. T. N. S. 696 : W. N. p. 219.) AVhoro a shareholder applied to have his name removed from the of contributories on the ground of variance between the prospectus the Memoriuidum iind .Vrticlos of Association, and it appeared tha was acquainted witli tlie cii-cumstances which he said entitled hii have his name removed neai-ly twelve mouths before his applica and had submitted to have calls made on him, his application refused with costs: (/,',■ Accidental and Marine Insurance Corpora Jhiri.i's case, \\ . N. 18(16, pp. SG3 and 406, on appeal.) AMiero a n'gistercil Memorandum of Association diifers from prospectus on which it professes to be founded, and on whicl BettiiiD' forth the true obienta nt l.lio noonn,v+;.,« „ i > Ordinary Powers of Court. 197 shareholder, though, on discovering the difference, he may repudiate his shares, he cannot, after the failure of the Company, relieve himself from HabUity to contribute to the debts of the association on the ground that he has been ignorant of something which, with proper diligence, he might have known. It is the duty of a person taking shares in a Company to use reasonable diligence in making himself acquainted with the provisions of the Memorandum of Association. He must take the consequences of neglect. A. applied on the faith jof statements in a prospectus for shares in a Company. They were allotted. His name was put on the register of shareholders. At the end of nine months .the Company failed, and was ordered to be wound-up. A. then applied to have his name removed from the list of contributories ; and it was held, affirming the decision of MaUns, V. C. (Law Rep. 3 Eq. 576), that it could not be removed from the list : (bakes v. Turquand and Harding, Re Overend, Gm-ney, and Company, Law Rep. 2 H. L. 325.) See, also, Kent v. Freehold Land and Brickmaking. Company, Law Rep. 3 Ch. App. 493. As to the manner in which a winding-up affects the right to rescind a share-taking contract, either on the ground of fraud or a variance between the prospectus and memorandum, see sect. 23, supra, , 99. Provision as to representative contributories. — In settling tHe list of contributories (a.) the court shall dis- tiagaish between persons who are contributories in their own right and persons who are contributories as being representatives of (6) or being liable to the debts of others ; it shall not be necessary, where the personal representative of any deceased contributory is placed on the list, to add the heirs or devisees of such contributory,, nevertheless such heirs or devisees may be added as and when the court thiaks fit. (a) In settling the list of contributories.'] — ^For the practice as to settling the Ust of contributories, see clauses 29 — 31 of General Order, 1862, post. (ft) As being representatives of, ^-c] — As to representative contribu- tories, see sects. 76 — 78, supra. 100. Power of court to require delivery of property. — The court may, at any time after making an order for winding- up a Company, require any contributory for the time being settled on the list of contributories, trustees, receiver, banker, or- agent, or officer {a) of the Company, to pay, deliver, convey, surrender, or transfer forthwith, or within such time as the court directs, to or into the hands of the official liqui- dator, any sum or balance, books, papers, estate, or effects (&) which happen to be in his hands for the time being, and to which the Company is prima facie entitled. (a) The court may require any contributory, Sj-c, or officer, ^-c] — The court will not, under this section, make an order ex parte for the delivery 198 The Companies Act, 1862. over of documents by the manager of a Company to the official li dator : (Re Commercial Union Wine Company, 85 Beav. 35.) Where a judgment-creditor of a Company had obtained a garni order (under the 61st section of "The Common Law Procedure I 1854) attaching a sum of money belonging to the Company, in the hi of their bankers, and the sum attached was paid to him by the garni after the presentation of a petition for winding-up the Company, before the winding-up order, the court held that it had no jiirisdif to make an order under this section for repayment of the money tc Company, on the ground that the creditor was a trustee for the C pany, as the terms used in the section could not be intended to meel case of a person holding money on a merely constructive trust, anc creditor had possession of the money as payment of his debt, no any express trust for the Company : {Re United English and Scotch Assurance Company, Ex parte Hawkins, Law Rep. 3 Ch. App. 787.) The directors of a provisionally registered railway Company pai solicitors employed by the Company a sum of money in respect of i bill of costs, which was not then delivered, and which, when deliv< fell short of the sum paid. The balance was claimed by the assig of another solicitor, who had acted jointly with the former in respe certain extra costs not included in the bUl ; and the flrst-mentii solicitors also claimed a lien in respect of subsequent costs ; it was 1 irrespectively of those claims, that the balance was not in the hani the solicitors as " agents or trustees " for the Company, so as to jurisdiction to the master under the corresponding section (sect. 6( 11 & 12 Vict. c. 45 : {HollingswortJi's case, 3 De G. & S. 102.) So where the sharebrokers of a provisionally registered Company, were also holders of shares, had borrowed of the directors part of Company's moneys, to enable them to complete a purchase of shar the market, and had deposited as a security the purchased shares some of their original shares, it was held that the moneys borrowed not due from them as members and contributories of the Company, i to authorise the master simimarily to order them, in that characte pay the amount under that section : (Re Tring, Reading, and Ba stoke Railway Company, Cox's case, 3 De G. & S. 180 ; 19 L. J. Ch. ] (J) Effects, §^c.] — Where the official liquidator of a Company l wound-up, applied under this section for an order for the delivery u him by a railway Company of certain goods, which had been consij to them by the provisional liquidator, between the presentation oi winding-up petition and the winding-up order, upon payment foi carriage of the goods, the railway Company contended that, und special agreement between the two Companies, they were entitled general Hen on the goods in their hands for the balance from tin time due to them on their genei-al carriage account, and they cla; to enforce this lien against the goods in question for sums fallei on that account before tJie presentation of the winding-up petii it was held that the railway Company were entitled to the lien claimed, on the ground that the goods were consigned to them b provisional liquidator without notice of any intention to put an ei the previous agreement, and the application was refused : (Re Nort, Iron and Steel Company, W. N. 1866, p. 253 ; 14 L. T. N. S. 695.) 101. Poirrr of coitH to order payment of debts hij Irlbatori/.— The court may, at any time after making Ordinary Powers of Court. 199 order for winding-up the Company, make an order (a) on any contributory for the time being settled on the list of contributorieSj(6) directing payment to be made, in manner in the said order mentioned, of any moneys due from him or from the estate of the person whom he represents to the Company, exclusive of any moneys which he or the estate of the person whom he represents may be liable to con- tribute by virtue of any call made or to be made by the court in pursuance of this part of this act ; and it may, in making such order when the Company is not limited, (c) allow to such contributory by way of set-off any moneys due to him or the estate which he represents from the Company on any independent dealing or contract with the Company, but not any moneys due to him as a member (i) of the Company in respect of any dividend or profit : Provided that when all the creditors (e) of any Company whether limited or unlimited are paid in full, any moneys due on any account whatever to any contributory from the Company may be allowed to him by way of set-off against any subsequent call or calls. (a) Make an order, Sj-c.'] — For the form of the order, see General Order of November, 1862, 3rd schedule. Form 13, post. (b) Settled on the list of contributories.'] — ^A holder of fully paid-up shares cannot be put on the list of contributories for the purpose of obtaining an order against him under this section, for payment of money due by him to the Company : (Re Marlborough Club Company, Law Eep. 5 Eq. 365.) (c) When the Company is not limited.'] — ^The Master of the KoUs held that, in the absence of a special agreement, a contributory of a limited Company being wound-up by the court is debarred, by this section, from setting-off money due to him by the Company against money due by him on account of a call made before the winding-up ; and his Lordship was of opinion that a Company has no power to contract with one of its members to give him such a right of set-off as that claimed: (Re Breech Loading Armoury Company, Calisher's case. Law Hep. 5 Eq. 214.) See, also. Re Richmond Hill Hotel Company, PellatCs case, Law Eep. 2 Ch. App. 527. Although this section expressly excludes from its operation moneys due on account of calls made in the course of a winding-up, yet it has been held (Re Overend, Gurney, and Company, OrisselVs case, Law Rep. 1 Ch. App. 528 ; 35 L. J. Ch. 752), on the general construction of the act, that the same principle applies in their case, and that a shareholder in a limited Company, who is also a creditor of the Company under a con- tract, is not, in the event of the Company being wound-up, entitled to set-off the debt due to him against the calls, or to set-off against the calls a dividend which may thereafter come to him. But upon payment 200 The Gumpanles Ad, 1862. of all calls which have become due, he is entitled to receive dividenc the same time and at the same rate with the other creditors. See remarks on this case in Tlie Brighton Arcade Company v. Dot (Law Rep. 3 C. P. 175), where it was held that the rule laid dow CMsselVs case does not apply to the case of a voluntary winding-up. As to the right of set-off where a shareholder has executed a ( of assignment under " The Bankruptcy Act, 1861," see lie Btickw. Law Hep. 2 Ch. App. 578. See, also, with respect to a contributory's right of set-off, Tlie Gc and Moneley Gold Mininy Company v. Sutton (3 B. & S. 321), am Moseley Green Coal and Coke Company, Ex parte Barrett (12 L. T. J 193, Ch., on appeal). Both these cases were governed by stats. 19 i Vict. c. 47, and 21 & 22 Vict. c. 60, now repealed. It is to be obsei that this act contains no provision corresponding to sect, 17 of 21 i Vict. 0. 60. It may be remarked that this section only has reference to the i of set-off as between a, Company and its members. It has nothing t with dealings between a Company and persons not members of it, it seems the right of set-off in dealings of the latter kind is not affe by the Company being in progress of liquidation : (^Re Agra and Ma man^s Bank, Anderson's case. Law Kep. 3 Eq. 337.) See, also. Re Commercial Bank Corporation of India and the 1 Smith, Fleming, and Gledstanes' case. Law Rep. 1 Ch. App. 538 ; 15 I F, S, U8, p. 183, ante. {d) Moneys due to him as a member, ^-c] — ^Compare with this, sect clause 7, supra. («) Provided that when all the creditors, ^-c] — ^The Master of the I observed (Calisher's case, Law Rep. 5 Eq. 217), of this clause, that difficult to put an intelligible construction upon it consistently with decision of the Court of Appeal (see Griif.telVs case. Law Rep. 1 Ch. 1 535), that the word "credGltors" includes creditors who are also tributories. lO^. Power of court to malie calls. — The court may any time after making an ordei'(a.) for winding-up a Ci pany, and either before or after it has ascertained the si ciency of the assets of the Company, make calls on order payment thereof by all or any of the contributorie for the time being settled on the list of contributorieSj (c the extent of their liability, for payment of all or any si it deems necessary (rf) to satisfy the debts and liabilitiei the Company, ((?) and the costs, charges, and expense! winding it up, and for the adjustment of the rights of oontributories amongst themselves, and it may, in makir call, take into consideration the probability that som( the ■ contributox'ies upon whom the same is made may pa pr wholly fail to pay their respective portions of the sam (d) The court 11101/ at any lime after making an order, §«.] — The cov not obliged to put off ranking a cidl until the claims made agaii Compauy, which is in course of winding-up, have been cstablishe debts, even where those claims are likely to be contested. The Cou: Ordinanj Powers of Court. 2Ul Appeal will not, unless a strong case is made, interfere with the discre- tion of the judge to whose court the windiug-up is attached, by reduoiug the amount of a call ordered by him : (Be Contract Corporation, Law Kep. 2 Ch. App. 95 ; 36 L. J. Ch. 69 ; 12 Jur. N. S. 931 ; 15 L. T. N. S. 201.) As to the practice with regard to making calls on contributories in a winding-up, see General Order of November, 1862, clauses 38 — 85, post. (V) And order payment thereof hy all or any of the contributories, Sj-c.'] — Where the court postponed makmg a call, principally on the ground that a question was raised which affected the liabUity of a large number of contributories, and that the call should not be made pending the decision of the question, the Court of Appeal, although refusing to interfere with the discretion of the court below, strongly disapproved of the ground for postponing the call, and declared that it is the im- perative duty of the court, to exercise the powers which are given by the act for the benefit of the creditors at the earUest possible period, having regard to the position in which the Legislature has placed them. And that persons on the list of shareholders of a Company in process of being wound-up, having thereby incurred a. prima facie legal liabOity, are not entitled to resist the making of a call on the groimd that they assert a right to have their names removed from the list ; but then- remedy is to apply for the suspension of the operation of the call as against themselves : (Re Barned's Banking Company, 36 L. J. Ch. 215, on appeal ; 15 L. T. N. S. 597 ; W. N. 1867, p. 25.) A contributory was indebted to a Company for calls, and an order was made for the payment of them. A writ of elegit was afterwards duly sued out under the provisions of the 27 & 28 Vict. c. 112, and lands belonging to the contributory were dehvered in execution to the official liquidator of the Company. The official liquidator then presented a petition praying an order for the sale of the lands, and payment out of the proceeds of such sale of the calls due from the contributory, and for other relief. It was held that there must be an inquiry, what interest the contributory had in the lands when they were delivered in execution to the official liquidator of the Company, and what other parties (if any) were interested in the lands ; further consideration of the petition being reserved : (J?e Kiriy, Ex parte the Official Liquidator of the Leeds Banking Company, 14 L. T. N. S. 615.) Where an application is made to the court to stay proceedings to enforce a call, for the piupose of enabling a shareholder to bring forward evidence in opposition to the call, the general rule is, that the amount of the call m\ist be paid into court before the apphcatiou will be granted : (Re Overend, Gumey, and Company, Ex parte Oakes and'Peeke, W. N. 1866, p. 361.) See, also. Re Peninsular West Indian and Southern Bank, Jopp's case, W. N. 1867, p. 192. (c) Settled on the list of contributories.'] — As to the making of calls where the list was improperly settled, see Undenvood^s case (5 De G Mac. & G. 677). (d) For payment of all or any sums it deems necessary, ^c] — " I quite think that if any error has been committed as to the mode of making or ascertaining the amount of the call, the error ought,. if possible, to be corrected by the Court of Appeal ; but to a very great extent the 202 The Companies Act, 1862. quantum of call must be a matter that is to be left to the discre of the judge who has the conduct of the ■winding-up of the Comj from first to last :" (Re Contract Corporation, Law Rep. 2 Ch. App- Cairns, L.J.) (e) The dehts and liabilities of the Company.} — Turner, L. J., sidered that the section in speaking here of debts and liabilities, mus taken to mean estimated debts and liabilities : (Re Contract Corpora Law Rep. 2 Ch. App. 98.) Where a Company is wound-up imder this act, and calls have 1 made on the shareholders, interest after the date of the winding can be paid out of the calls, only on those debts which carry intercE law. The court refused to allow interest on the notes of a banking C pany where the notes were payable on demand, and no demand payment had been made before the Company was ordered to be woi up : (Re Herefordshire Banking Company, Law Rep. 4 Eq. 250.) See, also, Re State Fire Insvrance Company, The Times Compci claim (34 L. J. Ch. 58 ; 10 Jur. N. S. 1176), and Be HatfieU Patent ( Company (2 N. R. 502 ; 11 W. R. 971). 103. Power of court to order payment into hanlt. — ' court may order any contributory, (a) purchaser, or oi person from whom money is due to tte Company to pay same into tlie Bank of England or any brancli tliereoi the account of the official liquidator (6) instead of to official liquidator, and such order may be enforced in same manner as if it had directed payment to the offii liquidator. (a) The court may order any contributory, ^-c] — As to the enforcer of orders made by the Court of Chancery under tiis act, see sect. infra. (b) To the account of the official liquidator, ^x-.] — Where an order been made on a contributory for payment of money into the bank to account of the official liquidator, and it is desired to enforce that o by issuing a writ of f.fa., the course prescribed by the 38th Ord( November, 1862, must be followed, and an order obtained for payr of the sum in question to tlie official liquidator himself : (Re I Banking Company, Law Rep. 1 Ch. App. 150 ; 85 L. J. Ch. 311.) 104. Regulation of account with court. — All moii( bills, (a) notes, and other securities paid and delivered i the Bank of England or any branch thereof in the even a Company being wound-up by the court, shall be sub to such order and regulation for the keeping of the accc of such moneys and other effects, and for the payment delivery in, or investment and payment and delivery ou the same as the court may direct. ,^ ^A^ ^" '"'""'.'/■'. 6tto, ^•c.]-.On the subject of this section, see Ger Order of November, 1862, clauses 36 44. Ordinai-y Powers of Court. 203 105. Provision in case of representative contributory not paying moneys ordered. — If any person made a contributory as personal representative of a deceased contributory makes default in paying any sum ordered to be paid by him, pro- ceedings may be taken for administering (a) the personal and real estates of such deceased contributory, or either of such estates, and of compelling payment thereout of the moneys due. (a) Proceedings may he taken for administering, §^.] — The oflScial liquidator would take these proceedings under sect. 95 of this act. A testator, who died in 1855, was a shareholder in a banking Com- pany registered under 7 Greo. 4, c. 46, and had executed the deed of settlement, under which he had, for himself and his heirs, covenanted to perform the articles. The deed provided that the representative of a deceased proprietor might either sell the shares, or become a proprietor in respect of them, and have them transferred into his own name, in which case he should execute the deed, and on his neglecting to do so for three months after notice given to him, the directors might forfeit the shares. The testator, by his will, appointed K. his executor, and bequeathed to him his residuary personal estate, including his shares, and gave his real estate to him and to other devisees. K. did not sell the shares, which remained in the testator's name ; he took no steps to become proprietor, and the dividends were paid to him, as executor. In 1864, the Company was ordered to be wound-up under this act, and K. was made a contributory. The official liquidator filed a bin on behalf of himself, and all other creditors of the testator, gainst K. and the devisees, for the administration of the testator's estate, and to enforce the caJls against the real estate : it was held that the suit was properly instituted by the official liquidator under sect. 95, supra, by the general authority given by the court, without any special order: and also, that, notwithstanding the lapse of time since the testator's death, the real estate in the hands of the devisees was liable to the payment of the calls : (Turquand v. Kirby, Law Rep. 4 Eq. 123 : 36 L. J. Ch. 570 ; 16 L. T. N. S. 260.) 106. Order conclusive evidence. — Any order made by the court in pursuance of this act upon any contributory shall subject to the provisions herein contained(a) for appeaUng agaiust such order, be conclusive evidence that the moneys, if any, thereby appearing to be due or ordered to be paid are due, and all other pertinent matters stated in such order are to be taken to be truly stated as against all persons, and in aU proceedings whatsoever, with the ex- ception of proceedings taken against the real estate of any deceased contributory, in which case such order shall only be pHmd facie evidence for the purpose of charging his real estate, unless his heirs or devisees were on the list of contributories at the time of the order being made. 204 The Companies Act, 1862. (a) Subject to the provisions herein contained, Sj-c.} — These provis are contained in sect. 124, infra. 107. Cov/rt may exclude creditors not proving wii certain time. — The court may fix a certain day or cerl days on or within which creditors of the Companj are to prove their debts or claims, or to be excluded fi the benefit of any distribution made before such debts proved. (a) On or within which creditors of the Company, Sfc.'\ — Sect. iafra, authorises the proof of debts of every description. As to practice with reference to the proof of debts, see the 20th and follow clauses of the General Order and Rules of November, 1862, post. 108. Proceedings in the cowt of the vice-warden oftlie Si iiaries on proof of debts. — If in the course of proving debts and claims of creditors in the court of the v warden of the Stannaries any debt or claim is disputed the ofiicial liquidator, or by any creditor or contributory appears to the court to be open to question, the court s have power, subject to appeal as hereinafter provided to adjudicate upon it, and for that purpose the i court shall have and exercise aU needful powers of inqi touching the same by affidavit or by oral examinatior witnesses or. of parties, whether voluntarily ofiering th selves for examiuation, or summoned to attend by & pulsory process of the court, or to produce documents bei the court, and the court shall also have power, incidents to decide on the validity and extent of any lien or cha claimed by any creditor on any property of the Compan; respect of such debt, and to make declarations of rij binding on all persons interested; and for the more sa factory determination of any question of fact, or mi question of law and fact arising on such inquiry, the v warden shall have power, if he thinks fit, to direct and se any action or issue to be tried either on the common law i of his court, or by a common or special jury, before the tices of assize in and for the counties of Cornwall or De-J or at any sitting of one of the Superior Courts in Lon or Middlesex, which action or issue shall accordinglj tried in due course of law, and without other or fun consent of parties ; and the finding of the jury in s action or issue shall be conclusive of the facts found, un the judge who tried it makes known to the vice-wai that ho was not satisfied with the finding, or unlesi appears to the vice-warden that in consequence of mis Ordinary Poivers of Court. 205 riage, accident^ or the subsequent discovery of fresh material evidence, such finding ought not to be conclusive. (a) Sabjeci to appeal as hereinafter provided.'] — Sect. 124, i?i/ra, pro- vides for an appeal -from the court of the vice- warden of the Stannaries to the Court of Appeal in Chancery. 109. Gotirt to adjust rights of contributories. — The court shall adjust the rights of the contributories amongst them- selves, (a) and distribute any surplus that may remain (&) amongst the parties entitled thereto. (a) The rights of the contributories amongst themselves.] — As to calls being made in a winding-up on partly paid-up shareholders in order to adjust the rights between them and the shareholders who have paid up in full, see Re Anglesea Colliery Company (Law Rep. 1 Ch. App. 555). As to the duty of the court in. adjusting the rights of contributories, see Re Marylebone Joint-Stock Bank (25 L. J. Ch. 650), and Ex parte Dayrell and Ex parte Lowndes (1 Jur. N. S, 1129). (6) And distribute any surplus that may remain, §-c.] — A Company was formed in 1860 for worldng certain patents, the A. shareholders con- tributing all the capital, and the B. shareholders receiving paid-up shares as a consideration for the patents and the premises on which they were worked. The A. shareholders were to receive out of the profits the whole amount of their capital with interest at 11. 10s. per cent, before the B. shareholders could participate in the profits. It was held, upon the winding-up of the Company, no profits having been realised, that there being a provision only for preferential dividend, and no provision as to the . division of capital upon breaking up, that the surplus assets must be distributed between both classes of shareholders pro rata, without reference to their rights in respect of dividend : {Re London Indiambber Company, Law Kep. 5 Eq. 519.) 110. Court to order costs. — The court may, in the event of the assets being insufficient to satisfy the liabilities, make an order as to the payment out of the estate of the Company of the costs, charges, and expenses incurred in winding-up any Company in such order of priority(a) as the court thinks just. (a) In such order of priority, §-c.] — The petitioner's costs are the first charge upon the property of the Company, and must be paid in full in priority to the rest of the costs, all of which are treated as the costs of the official liquidator ; (Be Audley Hall Cotton-Spinninq Comoanv Law • Kep. 6 Eq. 245.) i' y> w 111. Dissolution of Company. — When the affairs of the Company have been completely vround-up, (a) the court shall make an order that the Company be dissolved from the date of such order, and the Company shall be dissolved accordingly. 206 The Companies Act, 1862. (a) T-Iave been completely wouvd-up.'] — As to the termination winding-up, see General Order of November, 1862, clauses 65—67 112. Registrar to make minute of dissolution of Comj — Any order so made shall be reported by -the official 1 dator to the registrar, (a) who shall make a minute ac( ingly in his books of the dissolution of such Company. (a) To the registrar.}— The Registrar of Joint-Stock Companies, constitution of his office is provided for by Part V. of this act. 113. Penalty on not reporting dissolution of Gompa'r If the official liquidator makes default in reporting tc registrar, in the case of a Company being wound-up b; court, the order that the Company be dissolved, he be liable to a penalty (a.) not exceeding five pounds for ( day during which he is so in default. (o) He shall he liable to a penalty, §-c.] — Sects. 65 and 66, supra vide for the recovery of penalties. 114. Petition to be Us pendens. — ^Any petition for wim up a Company by the court under this act shall const a lis pendens {a) within the terms of the act passed ii session holden in the second and third years of the reij Her present Majesty, chapter eleven, and intituled Ai for the better Protection of Purchasers against Judgn Grown Debts, Lis pendens, and Fiats in Banlcruptcy, vided the same is duly registered in manner require' such act concerning suits in equity. (a) Shall constitute a Us pendens, &c.] — ^It has been held that thi tion did not authorise the registration of a petition for winding-uj lis pendens, against the individual contributories : (Re Bamed's B( Company, Ex parte Thornton, Law Rep. 2 Ch. App. 171 ; 36 L. t 190 ; 15 L. T. N. S. 523.) This section of the act has been repealed by 30 & 31 Yict. c. 47, EXTEAOEDINAKT POWERS OF COUET. 115. Powei- of court to summon persons before it sus"^ of having property of Company. — The court may, after i made an order for winding-up the Company, summon b it (a) any officer of the Company or person known or pected to have in his possession any of the estate or e: of the Company, or supposed to be indebted to the Com] or any person whom the court may deem capable ( giving information concerning the trade, dealings, es or effects of the Company ; and the court may requirt sucli officer or person (c) to produce any books, pa deeds, writings, or other documents in his custody or p ExtraordinoA-y Poivers of Gourt. 20/ relating to the Company ; and if any person so summoned, after being tendered a reasonable sum for his expenses, refuses to come before the court at the time appointed, having no lawful impediment (made known to the court at the time of its sitting, and allowed by it), the court may cause such person to be apprehended, and brought before the court for examination j nevertheless, in cases where any person claims any lien on papers, deeds, or writings or docu- ments produced by him, such production shall be without prejudice to such lien,(d!) and the court shall have jurisdic- tion in the winding-up to determine all questions relating to such lien. (a) The court may summon before it.'] — Sect. 117, infra, gives the court power to examine on oath the persons thus summoned before it. The examination is usually made before one of the examiners of the court, or a special examiner. H the person summoned as a witness gives unsatisfactory answers, or refuses to produce documents reqiiired, he is liable to be committed. See Re German Mining Company, Stone's case, 3 De G. & S. 120. When a person is examined, at the instance of the official liquidator, under this section, his counsel and solicitor are entitled to be present at the examination to examine the deponent when the examination on behalf of the official Uquidator is concluded, and to take notes of the proceedings : (Re Breech- Loading Armoury Company, Me Merchants^ Company, Law Rep. i Eq. 453 ; 17 L. T. N. S. .5, Ch.) A witness summoned under this section must answer questions which refer to mere hearsay, since the object of the section is to enable the official liquidator to get full information as to all the Company's affairs, and hearsay may be valuable in putting him on the right inquiries ; {Re Ottoman Company, 16 W. E. 1069 ; W. N. 1867, p. 164.) The official Uquidator of a Company in liquidation was held to be obliged to answer the questions put by an alleged contributory for the purpose of making out his case to be reheved from liability to the Company : (Re Bamed's Banking Company, Ex parte Contract Corporation, W. N. 1867, p. 62, on appeal ; Law Eep. 2 Ch. App. 350.) B. was plaintiff in an action against a Company which was being wound-up. While the action was pending, certain contributories sub- poenaed him as a witness before a special examiner in the matter of the winding-up, and proposed to examine him as to matters connected with the action, and it was held that the pendency of the action offered no reason why his examination should not be proceeded with, and a motion on his behalf to stay the examination was refused : (Re Contract Cor- poration, Ex parte Bateman, 15 L. T. N. S. 495, Ch., on appeal ; W. N. Where a solicitor, who had been present when certain securities had been dehvered to his chent, objected to answer the question "from whom the cUent received them," on the ground of privilege, as it was information obtamed m the course of conducting his client's case the objection was overruled on the ground that the information was' not communicated by his client to the sohcitor, but was the result of his own observation: (Re Land Credit Society of Ireland, 15 W R 703 ) 208 The Companies Ad, 1862. An order was made, under this section, for the examinatioi nOBses before a special examiner as to the affairs of Compai course of liquidation. Before the winding-up, Company B. had amalgamated with Company C. (also in course of liquidation), validity of the amalgamation was in dispute between them, order in chambers, leave was given to the liquidator of the ( pany to attend all proceedings in the winding-up of Company on the examination of the manager of the latter Company, rep tives of the C. Company attended and insisted on their right 1 examine the witness. Upon an application to the court to pre course attempted to be pursued by the representatives of the ( pany, it was held that they had a right to attend and cross-exaj their undertaking to abide by any order as to the costs of thei examination, which the court might think fit to make, but tl cross-examination should be strictly confined to the matters ari of the examination in chief : (ifc Empire Assurance Corporation, N. S. 488.) (i) Any person whom the court may deem capable, §-c.] — ^ special examiner has been appointed, the proper mode of sun before the examiner " any person whom the court may deem ca giving information concerning the trade, dealings, estate, or effec Company, under this section," is, not by suhpcena, but by sum chambers, a form of which is given in the 3rd schedule to the Order of November, 1862, Form 54, post : {Re English Joint-Stoc Law Rep. 3 Eq. 203 ; 15 L. T. N. S. 206.) The managing clerk of a bank in which a contributory has an is a witness compellable to answer as to that account, under this {Re Financial Insurance Company, 36 L. J. Ch. 687.) And it has been held by the Court of Chancery Appeal that ii may be summoned under this section to be examined concern " dealings, estate, and effects '' of a Company, though no dire may have been raised, and that when a vice-chancellor has deei person capable of giving such information, within the meaning section, the Court of Appeal will be reluctant to intei-fere \ decision. A stockbroker, who had lodged a transfer of 823 shares in pany to an infant of limited means, was held to be a person " of giving information, &c.," and was ordered to attend and be e: accordingly : {lie Imperial Mercantile CreiiitAffoeiulion, Ex parte W. N. 1868, p. 102 ; 16 AV. R. 769, Ch.) See, also. Re Mercantile Credit Association, 37 L. J. Ch. 295. A mere creditor of a Company who is not shown to be ca giving iuformation concerning the trade, &c., of the Company, person to be examined under this section : {Re Accidental and Insurance Corporation, ]]lercati's case. Law Rep. 5 Eq. 22 • 37 L 86 ; 17 L. T. N. S. 308.) Where, on a siunmons in chambers to substitute the name of c tributory for another, the chief clerk refused to gxant a smnmoi this section to obtain further o\idonce, ho was held to be wrong refusal, and a summons was ordered to issue directed to such pe the apiilicunt should uanve as neccss:u-y witnesses: {Re Orerend, and Ciiinpaiiy, Ex parte J/«,vi/n(cc, 16 L. T. N". S. 378, Ch.) (r) The court may require any such officer or person, §'C.] — Wher tributory disputed liis liability to be "placed on the list and calle( Extraordinary Pow&rs of Court. 209 official liquidator of the Company in liquidation, to produce certain estimates and calculations respecting the assets of the Company which had been prepared with a view to making an application for a call, the court held that the documents should be produced, unless they were protected as confidential communications between solicitor and client : {Re Bamed's Banking Company, Ex parte Contract Corporation, Law Rep. 2 Ch. App. 860.) (d) Such production shall be without prejudice to such lienj] — There was no such provision as this in the corresponding section (sect. 63) of " The Joint-Stock Companies Act, 1848," upon which the case of Re Oxford and Worcester, Sj-c, Railway Company, Potter's case (1 De G. & S. 728 ; 13 Jut. 691), was decided, in which the court would not order the pro- duction of documents so as to destroy or injure the hen of solicitors on them. Now, however, the case is different, and a solicitor who had documents belonging to a Company in course of liquidation, on which he claimed a Hen, was ordered to produce them for inspection, though not to deliver them over to the official liquidator : (Jie South Essex Estuary and Reclamation Company, Ex parte Paine and Layton, Law Rep. 4 Ch. App. 215 ; 17 W. R. 275.) On the subject of hen, see, also, Re London, Brighton, and South Coast Railivay Company, Law Rep. 6 Eq. 325. 116. Special provisions as to court of vice-warden of the Stannaries. — If^ after an order for winding-up in the court of tte vice-warden of the Stannaries, it appears that any person claims property in or any lien, legal or equitable, upon any of "the machinery, materials, ores, or effects on the mine, or on premises occupied by the Company in connection with the mine, or to which the Company was at the time of the ovder prima facie entitled, it shall be lawful for the vice- warden or the registrar to adjudicate upon such claim on interpleader in the manner provided by section eleven of the act passed in the eighteenth year of the reign of her present Majesty, chapter thirty-two ; and any action or issue directed upon such interpleader may, if the vice-warden think fit, be tried ia his court or at the assizes or the sittings in London or Middlesex, before a judge of one of the Superior Courts, in the manner and on the terms and conditions hereinbefore provided (a.) in the case of disputed debts and claims of creditors. (a) On the terms and conditions hereinbefore provided, Sj-c.} — This refers to sect. 108, supra. 117. Examination of parties by court. — The court may examine (a) upon oath, either by word of mouth or upon written interrogatories, any person appearing or brought before them in manner aforesaid concerning the affairs, dealings, estate, or effects of the Company, and may reduce into writing the answers of every such person, and require him to subscribe the same. 210 The Oompomies Act, 1862. (a) The court may examine, Sj-c.'] — As to the course to be pursued such examination, see sect. 115, supra. 118. Power to mrest contributory about to abscond, or to r move or conceal cmy of Ms property. — The court may, at ai bime before or after it has made an order for winding-up Company, upon proof being given (a) that there is probab cause for beUeving that any contributory (6) to such Coe pany is about to quit the United Kingdom, or otherwii abscond, or to remove or conceal any of his goods or chattel for the purpose of evading payment of calls, or for avoidir examination in respect of the affairs of the Company, can 3uch contributory to be arrested, and his books, (c) papei moneys, securities for moneys, goods, and chattels to 1 seized, and him and them to be safely kept until such tin IS the court may order. (a) Upon proof being given, Sfc] — ^As to what is sufficient proof induce the court to exercise the power conferred by this section, s Re Imperial Mercantile Credit Company (Law Rep. 5 Eq. 264), infra. (h) Any contributory. 2 — ^This, of course, includes an alleged co tributory ; see sect. 74, supra. (c) Cause such contributory to be arrested, and his bool:s, ^r.] — Up evidence consisting of, an affidavit stating that it was commonly report that a contributory was about to sell off his goods and chattels for t purpose of evading payment of a call, and a handbill advertising th( immediate sale by auction, the court, reading the section as authorisi a seizure of goods without an arrest of the person, made an order i the seizure of his books, papers, moneys, &c., but refused to order 1 arrest upon a mere hearsay statement of his intention to leave t United Kingdom : (Re Imperial Mercantile Credit Company, Law R( 5 Eq. 264.) - See, also, Re Cotton Plantation Company of Xolal, W. N. 1868, p. 'i Where a contributory was in France, the comt oixiered that a writ sequestration might issue without a prior writ of attachment : (East England Bank, Re Hall, 2 Drew. & Sm. 284.) 119. Powers of court cumulative. — Any powers by this a conferred on the com-t shall be deemed to be in additi( to and not in restriction of any other powers subsistin either at law or in equity, of instituting proceedings ( against any contributory, or the estate of any contributor or against any debtor of the Company, for the recove of any call or other sums due from such contributory debtor, or his estate, and such proceedings may be institute accordingly. (a) Instituting proccallng.i, sVc]— Any such proceedings should instituted by tlie ollicial liquidator ; see sect. 95, supra. Enforcement of, and Appeal from, Orders. 211 ENFOECEMINT OF, AND APPEAL FEOM, OEDEES. 120. Power to enforce orders. — All orders made by the Court of Chancery in England or Ireland under this act may be enforced in the same manner in which orders of such Court of Chancery made in any suit (a) pending therein may be enforced, and for the purposes of this part of this act the court of the vice-warden of the Stannaries shall, in addition to its ordinary powers, have the same power of enforcing any orders made by it as the Court of Chancery in England has in relation to matters withiu the jurisdiction of such court, and for the last-mentioned purposes the juris- diction of the vice-warden of the Stannaries shall be deemed to be co-extensive in local limits with the jurisdiction of the Court of Chancery in England. (a) Orders of such Court of Chancery made in any suit, Sfc.'] — Such orders are enf orcible by attachment. 121. Power to order contributories in Scotland to pay calls. — ^Where an order, interlocutor, or decree has been made in Scotland for winding up a Company by the court, it shall be competent to the court in Scotland during session, and to the lord ordinary on the bills during vacation, on production by the liquidators of a list certified by them of the names of the contributories liable in payment of any calls which they may wish to enforce, and of the amount due by each contributory respec- tively, and of the date when the same became due, to pronounce forthwith a decree against such contributories for payment of the sums so certified to be due by each of them respectively, with interest from the said date till payment, at the rate of five pounds per centum per annum, in the same way and to the same effect as if they had severally consented to registration for execution, on a charge of six days, of a legal obUgation to pay such calls and interest; and such decree may be extracted immedi- ately, and no suspension thereof shall be competent, except on caution or consignation, unless with special leave of the court or lord ordinary. 122. Order made in England to be enforced in Ireland and; Scotland. — Any order made by the court in England for or in the course of the winding-up of a Company under this act shall be enforced(a) in Scotland and Ireland in the courts that would respectively have had jurisdiction in p2 212 The Companies Act, 1862. respect of such Company if the registered office of Company had been situate in Scotland or Ireland, anc the same manner in all respects as if such order had h made by the courts that are hereby required to enfe the same; and in like manner orders, interlocutors, decrees made by the court in Scotland, for or in course of the winding-up of a Company shall be enfor in England and Ireland, and orders made by the courl Ireland for or in the course of winding-up a Comp shall be enforced in England and Scotland by the coi which would respectively have had jurisdiction in matter of such Company if the registered office of Company were situate in the division of the United Ki dom where the order is required to be enforced, anc the same manner in all respects as if such order had t made by the court required to enforce the same in case of a Company within its own jurisdiction. (a) Shall be enforced, Sfc.l — ^The next section prescribes the i of doing this. 123. Mode of dealing with orders to he enforced hy o courts. — Where any order, interlocutor, or decree made one court is required to be enforced by another co as hereinbefore provided, an office copy of the order, in locutor, or decree so made shall be produced to the pre officer of the court required to enforce the same, and production of such office copy shall be sufficient evide of such order, interlocutor, or decree having been mj and thereupon such last-mentioned court shall take s steps in the matter as may be requisite for enforcing s order, interlocutor, or decree, in the same manner , a it were the order, interlocutor, or decree of the cc enforcing the same. 124. Appeals from orders. — Eehearings of and app from any order or decision (a) made or given in the ma of the winding-up of a Company by any court ha\ jurisdiction under this act may be had in the same mar and subject to the same conditions in and subject to wl appeals may be had from any order or decision of same court in cases within its ordinary jurisdiction; sub to this restriction, that no such rehearing or appeal s be heard unless notice of the same is given within tl weeks (fc) after any order complained of has been mi in manner in which notices of appeal are ordinarily gb Enforcement of, mid Appeal from, Orders. 213 according to the. practice of tlie court appealed from, unless such time is extended (c) by the Court of Appeal: Provided, that it shall be lawful for the lord warden of the Stannaries, by a special or general order, to remit at once any appeal((i) allowed and regularly lodged with him against any order or decision of the vice-warden made in the matter of a winding-up to the Court of Appeal in Chancery, which court shall thereupon hear and determine such appeal, and have power to require all such certificates of the vice -warden, records of proceedings below, documents, and papers as the lord warden would or might have required upon the hearing of such appeal, and to exercise all other the jurisdiction and powers of the lord warden specified in the act of Parliament (e) passed in the eighteenth year of the reign of her present Majesty, chapter thirty-two, and any order so made by the Court of Appeal in Chancery shall be final without any further appeal. (a) Appeals from any order or decision, ^c] — ^As to the renewal of a motion after it had been refused, and the order made enrolled for appeal to the House of Lords, see Re Overend, Gumey, and Company, Ex parte Oakes andPeeh, 36 L. J. Ch. 413. On an appeal by the official liquidator against an order striking off the name of a contributory, leave was given to a shareholder to move to discharge the order : {Re Scottish Universal Finance Bank, Ship's case, 11 Jut. N. S. 254, Ch., on appeal ; 12 L. T. N. S. 256.) Leave was given, in Re Wiltshire Iron Company, Ex parte Pearson (Law Eep. 3 Ch. App. 443), to have an appeal reheard and to adduce fresh documentary evidence at the hearing, although no explanation was given why the documents had not been produced earlier. The court remarked, however, that an application to admit fresh documents, the genuineness of which can be tested with certainty, stands on a very different footing from an application to admit fresh parol evidence, after the pinch and pressure of the case has been sustained. Where a contributory desired to appeal to the House of Lords, he was allowed to pay into court the money claimed by the official liquidator, to abide the result of his appeal, without being made to give security for costs : (Re Peninsular, West Indian, and Southern Bank, Jopp's case, W. N. 1867, p. 192.) Where an appeal, on first coming on to be heard in the Court of Chancery Appeal, stood over without argument to await the decision in another case, substantially similar, then being heard before the House of Lords, and the decision of the House of Lords proving adverse to the appellant's case, he sought to have his appeal dismissed without costs, on the ground that the law was unsettled when his appeal was set down, the court held that the appeal must be dismissed with costs: (Re Earned'' s Banking Company, Westland's case, 37 L. J. Ch. 86.) (6) Unless notice of the same is given within three weeks, ^-c] — This restriction of appeals to those in which notice has been given within three weeks after the making of the order appealed from, does not apply to appeals from any order made on the original petition for winding- 214 The Compa/nwn Act, 1862. up : (Re Universal Bank, Law Kep. 1 Ch. App. 428 ; 12 Jur. N. S. ' 14 L. T. N. S. 691.) When the time limited for appeal has expired, the Court of Ap ■will not enlarge it upon an ex parte application, but will require ni to be given to the intended respondent : (Re Lama Italian Coal Comp 16 L. T. N. S. 258, Ch. ; W. N. 1867, p. 119.) See, also. Re North of England Joint-Stock Banking Company, Ex} Sanderson (1 Hall & TweUs, 486 ; 3 De G. & S. 66). This part oi section is imperative: (Ex parte Green, 24 L. J. Ch. 331.) (c) Unless such time is extended.'] — Special or peculiar circumsta must be shown, to induce the Court of Appeal to exercise its p( under this section of extending the time for appeal : (Re Samuel Ba and Company, Ex parte Bastow and Company, 37 L. J. Ch. 51.) The Master of the Rolls refused an application by the liquidator Company, which was being wound-up voluntarily, for an injunctio restrain a creditor from selling goods of the Company which he taken in execution ; and more than three weeks elapsed without liquidator giving notice of his intention to appeal. An injun< having, in an analogous case, been granted by Vice-Chancellor Sti the liquidator applied for leave to appeal, notwithstanding the di and it was held by the Lords Justices, that the fact of a contrary dec in a different, though analogous, case having been pronounced 1 judge of co-ordinate jurisdiction, was not a ground on which the C of Appeal would exercise its discretion of extending the time for ap] ing: (Re Hull Forge Company, Ex parte Mitchell, 36 L. J. Ch. 337 appeal ; 15 W. K. 474.) See, also. Re Reese River Company, Ex parte AtweU, W. N. 1867, p. (d) To remit at once any appeal, Sfc.'] — The general rules and oi for regulating the practice, &c., on appeals to the lord warden, wi found, post. (e) The Act of Parliament, §-c.] — The section of this act which r lates appeals wUl be found, post. 125. Judicial notice to be taken of signature of officen In all proceedings under this part of this actj all cou judges, and persons judicially actingj and all other offic judicial or ministerial^ of any court, or employed in enforc the process of any court, shaU take judicial notice (a) of signature of any officer of the Coui-ts of Chancery or Ba ruptcy in England or in Ireland, or of the Court of Sess in Scotland, or of the registrar of the court of the v warden of the Stannaries, and also of the official sea] stamp of the several offices of the Courts of Chan( or bankruptcy in England or Ireland, or of the Couri Session in Scotland, or of the court of the vice-warde: the Stannaries, when such seal or stamp is appendec or impressed on any document made, issued, or sig under the provisions of this part of the act, or any offi copy tliovcof. (n) Shall take jwliciiil notice, ,Sc.]_The effect of this is that no p Enforcement of, and Appeal from, Orders. 215 shall be required where the documents purport to be signed by the proper oificers. 126. Special commissioners for receiving evidence, — The conunissioners of the Court of Bankruptcy and the judges of the County Courts in England who sit at places more than twenty miles from the General Post OflGlcej and the commis- sioners of bankrupt and the assistant barristers and re- corders in Ireland, and the sheriffs of counties in Scotland, shall be commissioners for the purpose of taking evidence under this act in cases where any Company is wound-up in any part of the United Kingdom, and it shall be lawful for the court to refer the whole or any part of the examination of any witnesses under this act to any person hereby ap- pointed commissioner, although such commissioner is out of the jurisdiction of the court that made the order or decree for winding-up the Company ; and every such commissioner shall, in addition to any power of summoning and examin- ing witnesses, and requiring the production or delivery of documents, and certifying or punishing defaults by wit- nesses, which he might lawfully exercise as a commissioner of the Court of Bankruptcy, judge of a County Court, com- missioner of bankrupt, assistant barrister, or recorder, or as ■ a sheriff of a county, have in the matter so referred to him all the same powers of summoning and examining wit- nesses, (a) and requiring the production or delivery of docu- ments, and punishing defaults by witnesses, and allowing costs and charges and expenses to witnesses, as the court which made the order for winding-up the Company has ; and the examination so taken shall be returned or reported to such last-mentioned court in such manner as it directs. (o) All the same powers of summoning and examining witnesses.'] — As to these powers, see sects. 115 and 117, supra. 127. Court may order the examination of persons in Scot- land. — The court may direct the examination in Scotland of any person for the time being in Scotland, whether a contributory of the Company or not, in regard to the estate, dealings, or affairs of any Company in the course of being wound-up, or in regard to the estate, dealings, or affairs of any person being a contributory of the Company, so far as the Company may be interested therein by reason of his being such contributory, and the order or commission to take such examination shall be directed to the sheriff of the county in which the person to be examined is residing or happens to be for the time, and the sheriff shall summon 216 The Compcmies Act, 1862. sucli person to appear before him at a time and place to be specified in the summons for examination upon oath as a witness or as a haver, and to produce any books, papers, deeds, or documents called for which may be in his posses- sion or power, and the sheriff may take such examination either orally or upon written interrogatories, and shall report the same in writing in the usual form to the court, and shall transmit with such report the books, papers, deeds, or documents produced, if the originals thereof are required and specified by the order, or otherwise such copies thereof or extracts therefrom, authenticated by the sheriff, as may be necessary ; and in case any person so summoned fails to appear at the time and place specified, or appearing refuses to be examined or to make the production required, the sheriff shall proceed against such person as a witness or haver duly cited, and failing to appear or refusing to give evidence or make production may be proceeded against by the law of Scotland ; and the sheriff shall be entitled to such and the like fees, and the witness shall be entitled to such and the like allowances, as sheriffs when acting as com- missioners under appointment from the Court of Session and as witnesses and havers are entitled to in the like cases according to the hiw and practice of Scotland : If any objec- tion is stated to the sheriff by the witness, either on the ground of his incompetency as a witness, or as to the production required to be made, or on any other ground whatever, the sheriff may, if he thinks fit, report such objection to the court, and suspend the examination of such witness until such objection has been disposed of by the court. 128. Affidavits, Sfc, may he sworn in Ireland, Scotland, or the colonies before any competent court or person. — Any affidavit, afiirmation, or declaration required to be sworn or made under the provisions or for the purposes of this part of this act may be lawfully sworn or made in Great Britain or Ireland, or in any colony, island, plantation, or place under the dominion of Her Majesty, in foreign parts, before any court, judge, or person lawfully authorised to take and receive affidavits, affirmations, or declarations, or before any of Her Majesty's consuls or vice-consuls, in any foreign parts out of Her Majesty's dominions, and all courts, judges, justices, commissioners, and persons acting judicially shall take judicial notice of the seal or stamp or signature (as the case may be) of any such court, judge, person, consul, or vice-consul attached, appended, or subscribed to any such Voluntary Windinci-up of Gompany. 217 aflSdavit, affirmation, or declaratioiij or to any otHer document to be used for the purposes of this part of this act. YOLUNTAET WINDING-tJP OP COMPANY. 129. Circumstances under which Company may he wound- up voluntarily. — ^A Company under this act(a) may be wound-up voluntarily, (&) (1.) Whenever the period, if any, fixed for the duration of the Company by the Articles of Association expires, or whenever the event, if any, occurs, upon the occur- rence of which it is provided by the Articles of Asso- ciation that the Company is to be dissolved, and the Company in general meeting has passed a resolution requiring the Company to be wound-up voluntarily : (2.) Whenever the Company has passed a special resolu- tion (c) requiring the Company to be wound-up voluntarily : (3.) Whenever the Company has passed an extraordinary resolution(d) to the effect that it has been proved to their satisfaction that the Company cannot by reason of its liabilities continue its business, and that it is advisable to wind-up the same : For the purposes of this act any resolution shall be deemed to be extraordinary (e) which is passed in such manner as would, if it had been confirmed by a subsequent meeting, have constituted a special resolution as hereinbefore defined. (a) A Company under this act.'] — A Company may be wound-up voluu- tanly, or under the supervision of the court, without being registered, under this act, if it has been formed and registered under one of the former Joint-Stock Companies Acts, as it is then, under sects. 175 and 176, infra, to be deemed to be registered under this act : (iJe London Indiarubber Company, Law B,ep. 1 Oh. App. 329.) (6) Wound-up voluntarily.] — As to the advantages and disadvantages of a voluntary winding-up, as compared with one by the court or under the supervision of the court, see the judgment of Wood, V.C., in Re Inns of Court Hotel Company (W. N. 1866, p. 348), and the judgment of Turner, L.J., in Be National Savings Bank Association (Law Eep 1 Ch. App. 553). (c) A special resolution.] — The manner of passing a special resolution is prescribed by sect. 51 of this act. The difference between this and an extraordinary resolution, referred to in the next clause, is, that a special resolution must be confirmed by a second general meeting, whereas an extraordinary resolution may be formally passed at the first meeting, but that meeting must be in strict accordance with aU the provisions of sect. 51, supra. After a special resolution had been passed (but not confirmed) for the volimtary winding-up of a Company, a shareholder petitioned for a compulsory winding-up order, alleging that the Company had been 218 The Companies Ad, 1862. got up for the purpose of improving the property bought by the Com- pany, in order that it might revert in its improved condition to the person from whom it was bought, who held five times as many shares in the Company as all the other shareholders together. The court, finding that there was a conflict between the parties, and that there were matters which required investigation, refused, on the ground of the preponderating influence of the single shareholder, to give effect to the resolution of the Company, and made the ordinary winding-up order: (Re West Surrey Tanning Company, Law Eep. 2Eq. 737.) But the court will not interfere, on the application of a shareholder or a minority of shareholders, unless the resolution was obtained by fraud, or by overbearing conduct, or by improper influence : (Re Imperial Mercantile Credit Company, 12 Jur. N. S. 739, Ch.) See, also. Re St. David's Gold Mining Company (14 L. T. N. S'. 539, Ch.), where the court would not allow the deliberate determination of a Company to wind-up voluntarily, to be upset by a few dissentient share- liolders ; Re Beaujolais Wine Company (Law Kep. 3 Ch. App. 15) ; Re London and Mercantile Diicount Company (Law Rep. 1 Eq. 277) ; and Re Bank of Oihraltar and Malta (Law Rep. 1 Ch. App. 69). It is, however, the general right of a creditor to have a Company ivound-up by the court, although other creditors to a much larger imount desire a voluntary winding-up, and a meeting of the shareholders las been called to pass a resolution in favour of a voluntary winding-up : 'Re General Rolling Stock Company, 34 Beav. 314 : 11 Jur. N. S. 231, Ch. ; L2L.T.]Sr.S.9.) (d) Whenever the Company has passed an extraordinary resolution, ^r.] —See the observations of Turner, L. J., as to a resolution voluntarily ;o wind-up a Company: (Be National Savings Bank Association, Law Rep. 1 Ch. App. 65.) (e) For the purposes of this act, any resolution shall he deemed to he extra- irdinary, 6fcj] — The notice of a meeting to pass such an extraordinary •esolution should state the substance of the resolutions to be proposed, IS nearly as possible in the terms used in the section, and a notice may be |uite sufficient for the purpose of passing a resolution requiring con- irmation, and yet be insulficient for the purpose of passing a resolution •equiring no confirmation. Notice was given of an extraordinary meeting of shareholders in a Company, " for the purpose of considering, and, it so determined on, )f passing, a resolution to wind-up the Company voluntarily." The neeting passed a resolution " that it had been proved to the satisfaction )f the Company that the Company could not, by reason of its liabilities, iontinue its business ; and that it was advisable to wind-up the same." ^o meeting was ever called to confirm the resolution. The Lords Fustices held (reversing the decision of the Master of the RoUs), that his_ resolution was invalid as an extraordinary resolution under this lection, the notice not showing that it was intended to propose a ■esolution that the Company was imable, by reason of its liabilities, to jontinue its business, nor containing anything to show that it was )roposed to pass such a resolution for winding-up the Company as vould not require confirmation by a subsequent meeting : (Re Bridport Old Brewery Company, Law Rep. 2 Ch. App. 191 ; 15 L. T. N. S. 643.) 130.^ Ooiinncuceineiit of voluntary winding-up. — A volun- ;ary winding-up sliall be deemed to commence at the time Voluntary Winding-up of Oonvpany. 219 of the passing of the resolution (a.) authorising such wind- ing-up. (a) At the time of the passing of the resolution, ^c] — Where a voluntary ■winding-up is resolved upon, under sect. 129, cl. 2, supra, by means of a preliminary and a confirmatory resolution, the coromencement of the winding-up dates from the passing of the second resolution : (ije China Steam Ship Company, Dawes' case, Law Eep. 6 Eq. 232.) See, also, Re Ottoman Company, Hornby's case (W. N. 1868, p. 207), and Re Smith, Knight, and Company, Weston's case (Law Rep. 4 Oh. App. 20). As to the effect of a voluntary winding-up on the status of a Com- pany, see the next section. 131. Eff'ect of voluntary winding-up on status of Company. — Whenever a Company is wound-up voluntarily (a) the Company shall, from the date of the commencement of such wiuding-up, cease to carry on its business, except in so far as may be required for the beneficial winding-up thereof, and all transfers of shares, (&) except transfers made to or with the sanction of the liquidators, (c) or alteration in the status of the members of the Company, taking place after the commencement of such winding-up, shall be void, but its corporate state and all its corporate powers shall, not- withstanding it is otherwise provided by its regulations, contuiue((^ until the affairs of the Company are wound-up. (a) Whenever a Company is wound-up voluntarily, lfc.'\ — Sect. 153, infra, corresponds to this section with regard to a winding-up by the court, or under the supervision of the court. (b) All transfers of shares, ^■c.] — This section only makes the transfer of shares, without the sanction of the hquidator, void, and not illegal ; consequently, where a shareholder contracts to execute a transfer of his shares, he will not be protected from liability on his contract by the fact that a voluntary winding-up has supervened before the contract is com- pleted. See Biederman v. Stone (ha,-w Kep. 2 C. P. 604 ; 36 L. J. C. P. 198 ; 16 L. T. N. S. 415), p. 57, ante. Where a stockbroker filed a bill in equity against his principal to compel the latter to accept a transfer of certain shares which had been ptirchased for him, and a voluntary winding-up commenced before a decree was made in the suit, it was held that the plaintiff was entitled to a decree, and that, notwithstanding this section, the decree could not be impeached on the ground of its ordering the defendant to procure, so far as possible, the shares to be transferred and registered in his name. Chelmsford, L.C., observing, " It may be that the liquidator may, under this section, have the power of refusing, and may refuse to sanction the transfer ; but that is no reason why the court may not order the thing to be done if it is possible" : (Robins v. Edwards, W. N. 1867, p. 197 ; 15 W. R. 1065.) Speaidng of this, and the 153rd section, infra, Christian, L. J. (Irish Chancery Appeal), in his judgment in Sheppard v. Murphy (16 W. R. 948), said: "Their aim was to- protect the creditors of an insolvent Company and the general body of the shareholders, by arresting the 220 The Companies Ad, 1862. share register in the condition in which it was found at the commence- ment of the winding-up, so as to prevent unfair tampering with the body of directors ; but the very circumstance, that the intervention of this act disables the vendor from divesting himself of the powers incident to the legal ownership of the shares, would entitle him to claim relief in equity. The cases of Taylor v. Stray, Stray v. Russell, Chapman v. Sheppard, Biederman v. Stone, Hutchinson's case and Wood's case, with others that might be mentioned, are authorities to show that in this case winding- up did not in the least prevent the respondent from being, the owner of the shares." (c) Tlie sanction of the liquidators.'] — This section gives no power to the liquidators beyond that of sanctioning a transfer of shares to themselves, or to another person, and where a forfeiture of shares has been validly made by the directors of a Company, before the commencement of a voluntary winding-up, the liquidators have no power under it to cancel such forfeiture. Accordingly, where the directors of a Company had forfeited the shares of D. for non-payment of calls after the passing of a preliminary resolution to wind-up, and before its confirmation (i. e. before the commencement of the winding-up), and the liquidators had subsequently agreed with D. to cancel the forfeiture, it was held that the forfeiture was valid ; that the hquidators had no power to cancel it, and that D. could not he made a contributory : (/fe China Steam Ship Company, Daioes' case. Law Eep. 6 Eq. 232.) In like manner, where a, transfer of shares was completed after the passing of a preliminary resolution to wind-up, but before its confirma- tion, the transfer was held to be valid : (Re Ottoman Company, Hornby's case, W. N. 1868, p. 207.) (rf) But its corporate state and all its corporate powers shall continue, §•0.] — Where a hill was filed in equity impeaching certain preliminary proceedings which had been taken for the purpose of winding-up and reconstituting a Company, it was held that the fact of the Company having been wound-up subsequently, was no ground for staying the proceedings : (Seaton v. Grant, Law Kep. 2 Ch. App. 459.) 132. Notice of resolution to icuid-up voluntarUij. — Notice of any special resolution or extraordinary resolution passed for winding-up (a) a Company voluntarily shall be given by advertisement as respects Companies registered in England in the London Gazdfo, as respects Companies registered in Scotland in the Edinburgh Gazette, and as respects Com- panies registered in Ireland in the JDubUn Gazette. (a) Resolution passed for tvinding-up.'] — The notice provided for here is to be given after the resolution has passed, and the winding-up has commenced. 133. Oonsequeni-cs of voluntarily irlnding-iq^ — The follow- ing consequences shall ensue upon the voluntary winding-up of a Company. (1.) The property of the Company shall be appHed(a) in satisfaction of its Habilitios pari passu, and subject thereto, shall, unless it be otherwise provided by the Voluntary Winding-up of Company. 221 regulations of the Company-j be distributed amongst tlie members according to their rights and interests in the Company : (&) (2.) Liquidators shall be appointed for the purpose of winding-up the affairs of the Company, (c) and distri- buting the property : (3.) The Company in general meeting shall appoint such persons or person as it thinks fit to be liquidators or a liquidator, (cZ) and may fix the remuneration to be paid to them or him : (4.) If one person only is appointed, all the provisions herein contained in reference to several liquidators shall apply to him : (5.) Upon the appointment of Hquidators all the power of the directors shall cease, (e) except in so far as the Company in general meeting or the liquidators may sanction the continuance of such powers : (6.) When several hquidators are appointed, every power hereby given may be exercised by such one or more of them(/) as may be determined at the time of their appointment, or in default of such determination by any number not less than two : (7.) The Hquidators may, without the sanction of the court, {g) exercise all powers by this act given to the official liquidator : (8.) The liquidators may exercise the powers hereinbefore given to the court of setthng the list of contributories of the Company, and any list so settled shall bepn«ia. facie evidence of the liability of the persons named therein to be contributories : (9.) The liquidators may at anytime after the passing of the resolution for winding-up the Company, and before they have ascertained the sufficiency of the assets of the Company, call on all or any of the contributories (/i.) for the time being settled on the list of contributories to the extent of their liability to pay all or any sums they deem necessary to satisfy the debts and liabilities of the Company, and the costs, charges, and expenses of winding it up, and for the adjustment of the rights of the contributories amongst themselves, (i) and the liqui- dators may in making a call take into consideration the probability that some of the contributories upon whom the same is made may partly or wholly fail to pay their respective portions of the same : 222 The Companies Act, 1862. (10.) The liquidators shall pay the debts of the C ■paiij,{j) and adjust the rights of the contribute amongst themselves. (a) The property of the Company shall be applied, ^c.]— This m that the assets of the Company m-ust be applied in satirfaction parip of the liabilities of the Company, as they exist at the commencei of the winding-up. Where, prior to the -winding-up of a Company, a dividend had paid under an inspectorship deed to some creditors of the Company, not to others, it was held that there being no question of fraudi preference, those who had not received any dividend were not ent to a dividend vuider the winding-up, in priority to those who 1 (Re Smith, Knight, and Company, Ex parte Ashbury, Law Rep. 5 Eq. 2 The Master of the RoUs, in his judgment, speaking of this clause, s " It does not mean that the coiut shall look into fresh transactions, equalise all the creditors by making good to those who have not rece anything, a sum of money equal to that which other creditors 1 received. It takes them exactly as it finds them, and divides the ai among the creditors, paying them their dividend on their debts as then exist. If anything has been paid beforehand, that musi deducted from the amount of the proof." After a Company has resolved to wind-up voluntarily, creditors be restrained from levying execution on it, as it would render the al provision quite nugatory if a creditor were allowed to seize the wl or an undue share of the assets of the Company for his own benefit, creditor, who commenced aji action, and signed judgment after a i lution (of which he had notice) passed and duly confirmed to wim voluntarily, was restrained from issuing execution : (Be Sabloniere 1 Company, Law Rep. 3 Eq. 74 ; 15 L. T. N. S. 238.) Compare with this case, however, that of Re Bank of Hindm China, and Japan, Ex parte Levick and others (Law Rep. 5 Eq. 69), the same Company, Ex parte Smith (Law Rep. 3 Ch. App. 125). See, also, Re Peninsular, Sfc, Banling Company (35 Beav. 280) Keynsham Company (33 Beav. 123 ; 9 Jur. N. S. 885), and Re Life A nation of England (10 Jur. N. S. 762). A Company established under the Limited Liability Act 1856 (19 < Vict. c. 47), borrowed money upon debentures, which charged the s upon " all the lauds, tenements, and estate " of the Company, all their "undertaking." Upon the Company being wound-up vo tarily, it was held, as between the simple contract creditors of Company and the debenture holders, that the debentures did not inc arrears of unpaid calls, or moneys to arise from future calls : (Kin Marshall, 34 L. J. Ch. 163.) See The Brighton Arcade Company v. Dowling (Law Rep. 3 C. P. ] 37 L. J. C. P. 125), as to the right of set-off in an action by a Comt against a contributory for calls, in a voluntary winding-up. (h) Amongst the memhrs acconliiiq to their rights and interests ii Company. \—eo\ tho principle on which the surplus assets shoulc distributed among sliiu-oholdovs of different classes, see Re Sci Pmyaub, and Delhi Bank Corporation, W. N. 1867, p. 76. See, also. Re London Indiarubber Company, Law Rep. 5 Eq. 519. (c) For the purpose of whiding-up the affairs of the Company.']— It Voluntary Winding-up of Company. 223 been held that the voluntary winding-up of a bank ought not to prevent the holders of its notes and drafts, current at the time of the stoppage, from making a demand for payment ;. and where a claim for interest on notes and drafts was sent by the holders in to the liquidators, that was held to be a sufficient presentation and demand for payment accord- ing to the law of merchants, and that interest at the rate of 5 per cent, should be allowed from the date when each claim was sent in : (iJe East of England Banking Company, Law Rep. 4 Ch. App. 14.) (d) The Company in general meeting shall appoint liquidators or a liqui- dator.'] — Where a meeting is held to appoint liquidators, due notice should be given that their appointment is to be proposed at such meeting. At an extraordinary general meeting of a Company, resolutions were passed for the voluntary winding-up of the Company, and for the appointment of a liquidator. The notice, which imder Table B., clause 28, of the Companies Act (19 & 20 Vict. c. 47), had been previously given of the meeting, stated that the object of the meeting was the voluntary winding-up of the Company, but it omitted to mention that a liquidator was at the same time to be appointed. It was held that the appointment of the official liquidator was bad in consequence of the notice, which convened the meeting, not stating that it was the purpose of the meeting to appoint a liquidator : {Be Stearic Acid Company, 9 Jur. N. S. 1066 ; 8 L. T. N. S. 759, Ch.) The deed of settlement of a joint-stock Company, registered under the acts of 1856, 1857, provided that every general meeting, whether ordinary or extraordinary, should be called by advertisement, and that such advertisement should express the object of such meeting, or the business proposed to be transacted thereat, and that no other business should be transacted at an extraordinary general meeting than the business for which it should have been expressly called. The deed did not contain any provisions for the winding-up of the Company. It was held that liquidators for the winding-up of the Company, under the acts of 1856, 1857, could not be appointed at a meeting convened for the purpose of proposing a resolution to wind-up the Company voluntarily; and that it was immaterial that the Company was esta- blished before the passing of those acts : (Anglo- Calif ornian Gold Mining Company v. Lewis, 6 H. & N. 174 ; 30 L. J. Ex. 50.) See, also. Re Inns of Court Hotel Company, W. N. 1866, p. 348. It has been held, that where the contributories did not at the proper time exercise their right of appointing a liquidator, it became the duty of the court to appoint one, and an appointment having been made, that the Court of Appeal ought not to interfere with the discretion of the judge who had made it : (Be London Quays and Warehouses Company, Law Rep. 3 Ch. App. 394, ;)os<.) As to the importance of requiring from the liquidators in a voluntary winding-up sufficient security, and as to the impropriety of liquidators employing the money they receive for the purpose of making profit, see observations of the Master of the Rolls (W. N. 1866, p. 327). The court has full power to remove a liquidator or hquidators under a voluntary resolution to wind-up : (Re United Merthyr Collieries Company, 16 L. T. N. S. 170, Ch.) - See sect. 141, infra. (e) Upon the appointment of liquidators all the power of the directors shall cease.'} — It has been held that the directors did not cease to be officers of 224 The Oompanien Act, 1862. the Company on the commencement of a winding-up by the court, and tht they were, therefore, bound to answer interrogatories administered unde " The Common Law Procedure Act, 1854 " (17 & 18 Vict. c. 125), s. 51 (The Madrid Bank, Limited, v. Bayley, Law Rep. 2 Q. B. 37.) (/) Every power hereby given may he exercised hy such one or more c them, Sfc.'\ — Where a Company is being wound-up, and several liquj dators are appointed, it is necessary, in accepting a bill on the part c the Company, that it should be signed by two or more of them, unles at the time of their appointment it be determined that the acceptanc by one should be sufficient. Where the four liquidators of a Company resolved that one of ther should have power to accept bills, it was held that this, as a genera authority, would not be sufficient under this section which require the signature of two liquidators, but that the four liquidators migh authorise any one to sign any particular bill. Bills accepted by one liquidator in pursuance of this resolution wer held to be invalid against the Company, but the holders of the bill were allowed to claim as creditors for money advanced : (Re London aru Mediterranean Bank, Ex parte Birmingham Banking Company, Law Rep 3 Ch. App. 651.) (g) The liquidators may, without the sanction of the court, §'C.J — Sect. 9. of this act prescribes the powers of the official liquidator. Where an action brought by liquidators in a voluntary winding-U] under supervision fails, execution by the defendant for costs will not bi restrained : (Be Bank of Hindustan, China, and Japan, Ex parte Levicl and others. Law Rep. 5 Eq. 69.) As to a contract made by a liquidator for the sale of property of ; Company in liquidation, see Be Colonial and General Gas Companu W. N. 1867, p. 42. (h) Call on all or any of the contributories, Sfc] — See sect. 75 of thi act, and the case of Re Overeud, Gurney, and Company, Ex parte Lintot (Law Rep. 4 Eq. 184 ; 36 L. J. Ch. 510 ; 16 L. T. X. S. 228) under it. See, also. Re Overend, Gurney, and Company, Barrou's case (Law Rec 3 Ch. App. 784). y y In an action for calls by the liquidator of a Company being volun tarily wound-up, the defendant may set-off a debt due to him from th( Company, and sect. 101 of this act has been held not to apply t( the case of a voluntary winding-up; but it is no defence to such ai action that the liquidator omitted to give notice to the defendant, tha he was to be put on the Ust of contributories, previous to his beinj placed thereon: (The Brighton Arcade Company v. Douiinq, Law Rep 8 C. P. 175 ; 37 L. J. C. P. 125.) See, also. Re London Bank of Scotland, AV. N. 1867, p. 114. (i) For the adjustment of the rights of the contributories amongst them- setoes.]— A holder of fully paid-up shares is a " contributory" within thi meaning of tlie act. Thei-efore, where, under a voluntary winding-up }^ A ^"^^Tl P™T!'1«'1 f«>'-' it ^vas held (affirming the decisioi of Wood, V.C ) that tho liquidators were justified in mating a call upoi the partly paid-up shareholders for the purpose of adjusting the ri/ht between them and the^fully p,ud-up shareholders : (Re Angksea Colliers Compa»?/, Law Rep. 1 Ch App. 555 ; 35 L. J. Ch. 809; 15 L.T. N S 127 ' Even after three months tiad expired from the date of the registratioi of the return of a meeting, held under sects. 142 and 143 of tUs act Voluntary Winding-up of Company. 225 call was ordered to be made, for the purpose of adjusting the rights of fully paid-up and partly paid-up shareholders : (Re Crookhaven Mining Company, Law Kep. 3 Eq. 69 ; 36 L. J. Ch. 226.) (j) The liquidators shaUpay the (Jiehts of the Company, ^"c] — As to claims against a Company being wound-up under this act, see sect. 158, infra. 134. Effect of winding-up on share capital of Company limited hy guarantee. — Where a Company limited by guaranteej (a) and having a capital divided into shares, is being wound-up voluntarily, any share capital that may not have been called up shall be deemed to be assets of the Company, and to be a specialty debt due from each member to the Company to the extent of any sums that may be unpaid on any shares held by him, and payable at such time as may be appointed by the liquidators. (a) A Company limited hy guarantee, ^c] — Sect. 9, supra, explains the meaning of the expression " limited by guarantee." See, also, sect. 90, supra. 135. Power of Company to delegate authority to appoint liquidators. — ^A Company about to be wound-up voluntarily, or in the course of being wound-up voluntarily, may, by an extraordinary resolution, (a) delegate to its creditors, or to any committee of its creditors, the power of appointing liquidators or any of them, and supplying any vacancies in the appointment of liquidators, or may, by a like resolution, enter into any ar];angement with respect to the powers to be exercised by the liquidators, and the manner in which they are to be exercised ; and any act done by the creditors in pursuance of such delegated power shall have the same effect as if it had been done by the Company. (a) By an extraordinary resolution.'] — As to the mode of passing an extraordinary resolution, see sect. 129, supra. 136. Arrangement when binding on creditors. — Any ar- rangement entered into between a Company about to be wound-up voluntarily, or in the course of being wound-up voluntarily, and its creditors, shall be binding on the Company if sanctioned by an extraordinary resolution, (a) and on the creditors if acceded to by three-fourths in number and value of the creditors, subject to such right of appeal (b) as is hereinafter mentioned. (a) An extraordinary resolution.] — ^As to the mode of passing an extraordinary resolution, see sect. 129, supra. (J) Subject to such right of appeal, ^c.]— The right of appeal is pro- vided for by the next section. 22(3 The Compomies Act, ]862. 137. Tower of creditor or contributory to ajjpeal. — j creditor or contributory of a Company that has manner aforesaid entered into any arrangement with creditors may, within three weeks from the date of completion of • such arrangement, appeal to the cour against such arrangement, and the court may thereuj as it thinks just, amend, vary, or confirm the same. (a) Appeal to the cowri.]— For a definition of "the coiu^," sect. 81, supra. The mode of applying under this section is prescribed by the Gei Order of November, 1862, clause 51, post. 188. Tower for liquidators or contrihutories m voluni winding-up to apply to court. — Where a Company is be wound-up voluntarily the liquidators («) or any contribul of the Company(&) may apply(c) to the court((5) in Engla Ireland, or Scotland, or to the lord ordinary on the 1 in Scotland in time of vacation, to determine any quesi arising in the matter of such winding-up, (e) or to exerc as respects the enforcing of calls, or in respect of any o1 matter, all or any of the powers (^f) which the court mi exercise if the Company were being wound-up by court ; and the court or lord ordinary, in the case af said, if satisfied that the determination of such quest or the required exercise of power, will be just and benefi( may accede, wholly or partially, to such appHcation, such terms and subject to such conditions as the ci thinks fit, or it may make such other order, interlocutoi decree on such application as the court thinks just. (a) The Hqnidators.'] — A single liquidator, if there be only one, apply under this section, soe Re Metroiwlitan and Provincial 1 (W. N. 1867, p. Ill',)), where a liquidator applied to have an ai stayed that was brought against him by his co-liquidator. A liquidator, who has allowed a claim against the Company unc voluntary winding-up, ought not, in consequence of objections on part of some of the shai-eholders, to bring the matter himself befor( court under this section, but should leave tlie dissentient shareholdei do so if they choose: {^Re JJcniseJ Mi'liiallfis ami (Hcneral Plate ( hixnvance Compiuui, hlr parte Wmsoti, l.'i W. 11. 917 ; W. N. 1867, p. 17L. T. N. S. 8.) (6) Any cnntrilwtory of the Compani/. Ac.]— AMuro a compromise boon effected by a hquidator and a'doptod (under sect. 159) by Company, it was considered by Kolt, L. J., that a contributory not entitled under Ihis section to have the whole question reopc and tlu' propriety of the compromise determined, as if the Company being wound-up by the court, and as if the Company had not in me( approval of the compromise : {Re Lama Company, Miller^- co,s-,>, 16 1 N. h. r2h, Ch., on appeal ; Law Kep. 2 Ch. App. 692 ) Voluntary Winding-up of Company. 227 Where a contributory, from whom calls were due, took out a summons under this section objecting to the mode in which the liquidator had settled the list of contributories, it was held that the contributory had a right to see that the list was rightly settled, and for that purpose to inspect, by his solicitor and an accountant, the books and documents of the Company, but before doing so he should pay the amount of his calls into court ; his summons to be dismissed if he failed to point out any errors in the list ; (Re Loudon Bank of Scotland, Ex parte Collum, W. N. 1867, p. 114.) (c) May apply.'] — As to the mode of making the application, see clause 51 of the General Order, 1862, post. (d) The court.] — Where any proceedings in a voluntary winding-up have once been taken before a particular branch of the court, all sub- sequent proceedings in the same matter must be before the same judge : (Be Alexandra Printing Ink Company, W. N. 1868, p. 66.) (e) To determine any question arising in the matter of such winding-up.'] — ^The jurisdiction given by this section is of a smmmary character, and where the questions to be determined involved charges of misapplication of moneys against directors, the court refused to exercise it, or to send the case into chambers with a view to the investigation of these questions : (B« Bank of Gibraltar and Malta, Law Eep. 1 Ch. App. 69.) See, also, the reference to this section in the judgment of Wood, V. C, in Re London and Mercantile Discount Company, Law Rep. 1 Eq. 277. On an application for the court's confirmation of au agreement, made between the liquidators of a Company in the course of being voluntarily wound-up and another Company, and which had been objected to under sect. 161 of this act, the court, on its appearing that such agreement was fit and proper, and for the benefit of the Company, granted, under this section, the order asked for : (Re Scinde, Pmijaub, and Delhi Bank Corporation, 15 L. T. N. S. 602, Ch. ; W. N. 1867, p. 41.) (/) All or any of the powers which the court might exercise, ^-c] — Under this section the court has jurisdiction to stay actions % creditors against the Company. Upon granting an injunction to stay an action by a, creditor against a Company, during a voluntary winding-up, the court required the liquidators to give the creditors access to the proceedings, and give to the creditor his costs down to the time he had notice of the winding-up : (Re Keynsham Company, 33 Beav. 123 ; 9 Jut. N. S. 885, Ch.) Where a creditor brought an action against a Company, which after- wards resolved voluntarily to wind-up, on an application by the Com- pany, it was held that aU further proceedings in the action must be stayed upon the creditor being allowed to prove for his debt and the costs of the action and of the application : (Re Life Association of England, 34 L. J. Ch. 64 ; 12 L. T. N. S. 43.) If the action had been commenced after notice of the resolution to wind-up, the costs would not have been allowed. As to which, see also Re East Kent Shipping Company, W. N. 1868, p. 206. Where the liquidator, in a voluntary winding-up, applied for a writ of ne exeat (see sect. 118) against a contributory who was indebted to the Company in respect of arrears of calls, and who was alleged to be about to abscond from the country, the court, although not doubting its juris- diction, refused the application on the ground that the liquidator must 228 The Gmnpanies Act, 1862. bring an action and recover judgment before the writ could be grar {lie Cotton Plantation Conijianij of Natal, W. N. 1868, p. 79.) 139. Power of lirpdiJators to call general meeting. — ^Wl a Company is being wound-iip voluntarily tte liquida may, from time to time, during the continuance of £ winding-up, summon general meetings of tlie Company the purpose of obtaining the sanction of the Comj by special resolution (o) or extraordinary resolution, (&' for any other purposes they think fit ; and in the e^ of the winding-up continuing for more than one year, liquidators shall summon a general meeting of the Comp at the end of the first year, and of each succeeding i from the commencement of the winding-up, or as s thereafter as may be convenient, and shall lay before s meeting an account showing their acts and dealings, and manner in which the winding-up has been conducted dui the preceding year. (a) Special resolution.'] — As to the manner of passing a sp resolution, see sect. 51, supra. (ft) Extraordinary resolution.] — As to the manner of passing an ej ordinary resolution, see sect. 129, supra. 140. Poiver to fill up vacancy in liquidators. — If vacancy occurs in the office of liquidators appointed by Company, by death, resignation, or otherwise, the Comp in general meeting may, subject to any arrangement t may have entered into {a) with their creditors, fill up s vacancy, and a general meeting for the purpose of filling such vacancy may be convened by the contintling liqu.idat if any, or by any contributory of the Company, and shall deemed to have been duly held if held in manner prescri by the regulations of the Company, or in such other man as may, on application by the continuing liquidator, if a or by any contributory of the Company, be determined the court. (a) Suhjcct to ani/ arrnn(], mint they may hare entered into, iSr.] — "\V: the case of a viicinu-y takiiij;- plnoc is provided for in such arrangem tlio office must bo tilled in aooordauoe therewith. M.l. Power, of court to apjioiiit liquidators. — If from i cause whatever there is no liquidator acting in the case ( voluntary wiuding-iip, the court may, on the applicatioi a contributory, (rt) appoint a liquidator, (&) or liquidate the court may also, on due cause shown C,.^ T*fim/-nri=i Voluiifari/ Wl>uUnij-ni> of Gompanij. 229 liquidator^ and appoint another liquidator to act in the matter of a voluntary winding-up. (o) On the application of a contributory.'] — -As to the mode of making an application under this section, see General Order of November, 1862, cl. 51, post. (6) Appoint a liquidator, §-c.j — As to the court appointing a liqui- dator in a voluntary winding-up under supervision, see Re London Qiiayx and Warehouses Company, Law Rep.- 3 Ch. App. 394. (c) On due cause shown.'] — The court thus has power to remove a liquidator appointed in a voluntary winding-up on due cause shown, but only for cause shown ; and, unless cause is shown, the liquidator appointed must continue to hold the office. See the judgment of Cairns, L.J., in Re London Quays and Warehouses Company, Law Rep. 3 Ch. App. 400. But see Re Marseilles Extension Railway and Land Company, Law Rep. 4 Eq. 692. 142. Liquidators on conclusion of winding-up to make up an account. — As soon as the affairs of the Company are fully ■wound-up, (a) the liquidators shall make up an account shovnng the manner in which such winding-up has been conducted, and the property of the Company disposed of; and thereupon they shall call a general meeting of the Com- pany for the purpose of having the account laid before them and hearing any explanation that may be given by the liqui- dators : the meeting shall be called by advertisement, speci- fying the time, place, and object of such meeting ; and such advertisement shall be published one month .at least pre- viously to the meeting, as respects Companies registered in England in the London Gazette, and as respects Companies re- gistered in Scotland in the Edinburgh Gazette, and as resptects Companies registered in Ireland in the Dublin Gazette. (a) The affairs of the Company are fully wound-up.] — As to the time when the affairs of a Company should be deemed to have been fully wound-up, see Re Crookhaven Mining Company, Law Rep. 3 Eq. 69 : 36 L. J. Ch. 226 ; 12 Jur. N. S. 872. 143. Liquidators to report meeting to registrar. — The liqui- dators shall make a return to the registrar of such meeting having been held, and of the date at which the same was held, and on the expiration of three months(a) from the date of the registration of such return the Company shall be deemed to be dissolved : if the liquidators make default in making such return to the registrar they shall incur a penalty not exceeding five pounds for every day during which such default continues. (a) And on the expiration of three months, ^c] — The court has juris- diction to make an order in the matter of the voluntary winding-up of 280 The Companies Act, 1862. a Company under this act, after the expiration of three months from the date of the registration of a return by the liquidators of a meetmg having been held in piu-suance of the last section, if the application for such order is made before the expiration of the three months : (Re Crook- haven Mining Company, Law Rep. 3 Eq. 69 ; 36 L. J. Ch. 226 ; 12 Jur. N. S. 872 ; 15 L. T. N. S. 169.) In his judgment in this case, the Master of the Rolls said, " It is un- necessary that I should go into the question whether the 143rd section of the statute deprives the court of its jurisdiction over a Company, which, under the provisions of that section, is deemed to be dissolved. I am inclined to think that it was not the intention of the Legislature by any provision of this statute, which was intended to provide a less expensive and more speedy and direct method of winding-up Companies, to fetter the jurisdiction of the court and compel purties to resort to more circuitous and expensive remedies." 144. Gosts of voluntary liquidation. — All costs^ charges, and expenses properly incurred in the voluntary winding- up of a Company, including the remuneration of the liqui- dators, shall be payable out of the assets of the Company in priority to all other claims. 145. Saving of rights of creditors. — The voluntary wind- ing-up of a Company shall not be a -bar to the right of any creditor of such Company to have the same wound-up by the court,(a) if the court is of opinion that the rights of such creditor will be prejudiced by a voluntary winding-up. (a) To have the same wound-up by the court.^ — See sect. 86, .tupra. See, also. Re Manchester Queensland Cotton Compani/ (16 L. T. N. S. 583, Ch. ; W. N. 1867, p. 192), and Re United Sen-ice Company (Law Rep. 7 Eq. 76). Where a resolution for the voluntary winding-up of a Company had been duly made, it was considered by Turner, L.J., very doubtful whether it was within the jurisdiction of the court to make an order for winding-up by the court on the application of contributories : (Be Bank ()/■ Gibraltar and Malta, Law Rep. 1 Ch. App. 73.) See Re London and Mediterranean Bank, 15 L. T. N. S. 153. 146. Power of court to adopt proceedings of voluntary winding-up. — Where a Company is in course of being wound-up voluntarily, and proceedings are taken for the purpose of having the same wound-up by the court, the court may, if it thinks fit, notwithstanding that it makes an order directing the Company to be wound-up by the court, provide in sucli order or in any other order for the adoption of all or any of the proceedings («) taken in the course of the voluntary winding-up. (a) Prori,!,- for the adoption of nil or any of the proceedings, ^-c.]— It is doubtful whether the court has jurisdiction to adopt the proceedings in a volimtary wmding-up, when the Company is not registered under this act, Mid tJie resolution for winding-up was passed after the act came into opei'ation. Winding-up subject to the Su^KTvisioii of the Oourt. 231 An opposing shareholder, who was not served with the petition, but who appeared by counsel and successfully opposed the adoption of the voluntary proceedings, was allowed his costs : (i^e Minima Organ Com- pany, 8 L. T. N. S. 109, Ch.) See, also, lie Cumberland Black Lead Mininr/ Company, Ex parte Bell (6 L. T. N. S. 197), and Re Anglo-Californian, SfC, Company, Ex parte Baldy (10 W. R. 309). WINDING-UP SUBJECT TO THE SUPERVISION OF THE COOET. 147. Power of court, on application, to direct winding-up, suhject to supervision. — ^When a resolution has been passed by a Company to wind-up voluntarily, the court may make an order (a) directing that the voluntary winding-up should continue, but subject to such supervision of the court, and with such liberty for creditors, contributories,(6) or others, to apply to the court, and generally upon such terms and subject to such conditions as the court thinks just. (a) Tlie court may make an order.J — Where the voluntary winding-up of a Company is ordered to be continued, subject to the supervision of the court, the winding-up must be deemed to commence from the date of the resolution to wind-up voluntarily, (i. e. where there were two resolutions from the date of the second or confirmatory one), and not from the presentation of the petition on which the order is founded : (Re Smith, Knight, and Company, Weston''s case, Law Rep. 4 Ch. App. 20.) See, also, Hodgkinson y. Kelly, Law Rep. 6 Eq. 496. The court has an absolute discretion as to making an order under this section. As to the circumstances by which the court is to be guided in exercising that discretion, Turner, L. J. , thus expressed himself in Re Bank of Gibraltar and Malta (Law Rep. 1 Ch. App. 73) : "I think that, in determining the question whether such an order should be made or not, we must look to the facts on which the application for the order is grounded, and consider whether those facts present a case rendering it proper that the order should be made with a view to putting in force some of the provisions of the act, which would be available if the order were made, but would not be available under a mere voluntary winding- up." The case then before the court was on a contributory's petition, alleging breaches of trust and misconduct on the part of the directors of the Company ; the grounds were deemed to be insufficient, and the petition was dismissed. See, also. Re London Bank of Scotland, 15 W. R. 1103. Inasmuch as a voluntary winding-up must be the result of a properly convened meeting of a Company, at which all the contributories may attend and state their views (see Re London Flour Company, W. N". 1868, p. 84), and which, in the absence of evidence to the contrary, may be presumed to have taken the best course open to it for the interests of the Company, the court will not at the instance of contributories interfere with a voluntary winding-up, by ordering a winding-up, by or under the supervision of the court, except where the resolution for winding-up voluntarily, has been obtained by fraud, or by an inequi- table overbearing of the rights of a dissentient minority by improper influence: (i?c London and Mercantile Discount Company, Law Rep. 1 Eq. 277 ; 35 L. J. Ch. 229 ; 13 L. T. N. S. 665.) 232 The Companies Act, 1862. See, also, Re St. David's Gold Mininfi Company (W. N. 1866, p. 196), to the same effect, and Re Beaujolais Wine Company (W. N. 1867, pp. 139, 281 ; Law Rep. 3 Ch. App. 15.) Where the proceedings in a voluntary winding-up, under the act of 1856, were dilatory and unsatisfactory, and had not come to a conclusion at the end of five years, the court, upon the petition of a shareholder, directed a winding-up under the court : (He Fire AnniMlator Company, 32 Beav. 561.) See, also, Re United Merthjr Collieries Company (16 L. T. N. S. 170, Ch.), and Re Imperial Bank of China, India, ami Japan (Law Rep. 1 Ch. App. 339.) Where a Company is being wound-up voluiTtarily, and a petition is presented for a winding-up imder the supervision of the court, it is necessary to serve not only the liquidator but the Company ; and when the Company had no office or place of business when the petition was presented, the court ordered that service on nine subscribers to the memorandum of association, who were the only persons that had acted as directors, should be deemed service on the Company : (Re Inventors' Association, 13 W. R. 1015.) See, also. Re Panonia Leather Cloth Com- pany 13 W. R. 1015, n.) See Re Alexandra Hall Company (W. X. ISr.T, p. 67), as to an in- formaHty in the winding-up order under this section. (6) With such liberty for creditors, contributorief:, ^-c] — Where parties are dissatisfied with the course of proceedings taken in chambers, in obedience to an order for the voluntary winding-up of a Company under the supervision of the court, the proper course for such parties to take is to proceed by way of summons in chambers, to regulate the proceedings there, and not to present a petition for a compulsory winding-up order : (Re London and Mediterranean Bank, 15 L. T. X. S. 153, Ch.) But see Re Aldborouyh Hotel Company, 15 W. R. 390. 148. Petition for winding-up, subject to sujK^vvision. — A petitioiij praying wholly or in part that a voluntary winding- up should continue, but subject to the supervision of the court, and which winding-up is hereinafter referred to as a winding-up subject to the supervision of the court, shall, for the purpose of giving jurisdiction to the court over suits and actions, (a) be deemed to be a petition for winding- up the Company by the court. (6) , , (°) ^'"' ''*^ purpose of (jiring jurisdiction orcr suits and actions.] — Therefore the courts may grant an injunction under sect. 85, svpra, restraining proceedings agivinst the Company. (b) Shall be deemed to he a pdifion for tciiidiiiii-up the Company by the courl.']—\',y scot. 151, infra, ajiy order made by the court for a winding- up subject to the siiporvision of the court shall for all purposes be dcoiuod to be an order for winding-up the Compajiy by the coiu^. As to petitions for winding-up by the com-t, and orders made on t noin, see sects. !SL' and St!, supra. 149. Court mai/ hare rn/urd to luishcs of crrditors.— The court Diny, in dotormining whether a Company is to bo woiind-iip altogoHicr by the court, or subject to the super- Winding-up Subject to the Supe^rvlsion of the Court. 233 vision of the courts in the appointment of liquidator or liquidators^ and in all other matters relating to the winding- up subject to supervision, have regard to the wishes of the creditors or contributories(a) as proved to it by any suffi- cient evidencej and may direct meetings of the creditors or contributories to be summoned, held, and regulated in such manner as the court directs for the purpose of ascertaining their wishes, and may appoint a person to act as chairman of any such meeting, and to report the result of such meeting to the court : in the case of creditors, regard shall be had to the value of the debts duff to each creditor, and in the case of contributories to the number of votes conferred on each contributory by the regulations of the Company. (a) The court may have regard to the wishes of the creditors or contribu- tories, Sfc.'] — See the remarks of Wood, V. C, in iJe London and Mercantile Discount Company (Law Rep. 1 Eq. 284), -with regard to this section. The Agra and Masterman's Bani having stopped payment, an order was made for a voluntary winding-up under supervision. On an applica- tion to the court for its approval of a scheme adopted by the majority of shareholders and creditors, for the resuscitation of the bank by the transfer of its assets to a new Company, the court being of opinion that everything had been fairly laid before the shareholders and creditors, and that the success of the new bank was entirely a matter of speculation, thought itseK bound to follow the view of the majority, and sanctioned the arrangement : (i?e Agra and Masterman's Bank, 15 L. T. N. S. 408, Ch.) A Company passed a resolution for a voluntary winding-up. Before the meeting to confirm it, a petition was presented by contributories praying for a compulsory winding-up, or, ia the alternative that, if the resolution should be confirmed, the winding-up might be continued under the supervision of the court. This petition was ordered by the Master of the Rolls to stand over tOl after the confirmatory meeting should have been held, and his Lordship expressed an opinion that the Company ought not to appoint any liquidator, and required an undertaking accordingly. At the meeting the previous resolution was confirmed, but no liquidator was appointed. The petition came on again, and a supervision order was made, and the Master of the RoUs subsequently selected, out of several persons nominated for the office of liquidator, the one who was supported by the smallest number of contributories. A motion was afterwards made by some contributories, and supported by a large majority of the contributories, that the liqui- dator should be removed, or additional liquidators appointed to act with him, but it was not alleged that the person appointed was in any respect an improper person. This motion having been refused by the Master of the Rolls, it was held, upon appeal, that as the contributories did not at the proper time exercise their right of appointing a liquidator, it became the duty of the court to appoint one, and, an appointment having been made, the Court of Appeal ought not to interfere with the discretion of the primary judge. The court refused to appoint an additional liquidator, upon the ground that, there being a very hostile feeling between the parties, such an appointment, if one liquidator were 234 The Companies Act, 1862. appointed would lead to litigation and expense, and if more than one were appointed, would lead to the person originally appointed being outvoted. An order was made that the liquidator should conduct the winding-up subject to such restrictions as an official liquidator would in a compulsory winding-up be subject to, except so far as the court might, on application for that purpose, modify or dispense with such restrictions in any case or class of cases : {Re London Quays and Ware- liouses Company, Law Rep. 3 Ch. App. 394.) The court would not allow itself to be influenced by the wishes of contributories where there was reason to believe that the meeting, which pretended to express those wishes, was not fairly constituted: (Re National Savings Baiik Association, Law Rep. 1 Ch. App. 547.) 150. Power to court to appoint additional liquidators in winding-up subject to supervision. — Where any order is made by the court for a winding-up subject to tbe supervision of the court, the court may, in such order or in any subsequent order appoint any additional liquidator or liquidators ; (a) and any liquidators so appointed by the court shall have the same powers, be subject to the same obligations, and in all respects 'stand in the same position as if they had been appointed by the Company : The court may from time to time remove any liquidators so appointed by the court, and fill up any vacancy occasioned by such removal, or by death or resignation. (a) Appoint any additional liquidator- or liquidators.^ — For observations on appointing an additional hquidator or liquidators, see the judgments in Re London Quays and Warehouses Coiiq>ani/ (Law Rep. 3 Ch. App. 394). 151. Effect of order of court for u-indin(j-vp suhject to super- vision. — Where an order is made for a winding-up subject to the supervision of the court, the liquidators appointed to conduct such winding-up may, subject to any restrictions im- posed by the court, (a) exercise all their powers, without the sanction or intervention of the court, in the same manner as if the Company were being wound-up altogether voluntarily ; but, save as aforesaid, any order made by the court for a winding-up subject to the supervision of the court shall for all purposes, including the staying of actions, suits, and other proceedings, (i) be deemed to be an order of the court for winding-up the Company by the court, and shall confer full authority on the court to make calls, or to enforce calls made by the liquiilators, and to exercise all other powers which it might have exercised(c) if an order had been made for winding-up the Company altogether by the court, and iu the construction of the provisions whereby the court is oinpowcred to direct any act or thing to be done to or in favour of the official liquidators, the expression official liqui- Supplemental Provisions. 235 dators shall be deemed to mean the liquidators conducting the winding-up subject to the supervision of the court. (a) Subject to any restrictions imposed by the court.'] — See Re London Quays and Warehouses Company (Law Rep. 3 Ch. App. 394), where an order was made that the liquidator should conduct the winding-up, subject to such restrictions as an official liquidator would in a compulsory winding-up be subject to, except so far as the court might, on applica- tion for that purpose, modify or dispense with such restrictions in any case or class of cases. (6) Including the staying of actions, suits, and other proceedings.} — ^Where a suit was instituted by a shareholder in a Company, to restrain that Company from amalgamating itself with another Company, which, after the resolution for amalgamation, was ordered to be wound-up under supervision, the court, on summons, gave the plaintiff leave to proceed with his suit, on his undertaking not to enforce any decree he might obtain without the leave of the court : {Re Marine Investment Company, 17 L. T. N. S. 535.) (c) To exercise all other powers which it might have exercised, Ifc] — The shareholders in a mining Company within the jurisdiction of the Stan- naries passed a resolution for a voluntary winding-up of the Company, and appointed two liquidators. A creditor presented a petition for a compxdsory winding-up, upon which the vice-warden made an order directing the voluntary winding-up to continue under the supervision of the court, and substituting a new liquidator for one of those appointed by the resolution. It was held by Knight Bruce, L. J. (TiuTier, L. J., doubting), that the vice- warden had jurisdiction to remove the liquidator appointed by the shareholders : (Re Old Wheal Neptune Mining Company, Ex parte Pulbrook, 2 De G. J. & S. 348, on appeal.) See, also. Re Marseilles Extension Railicay and Land Company, Law Rep. 4 Eq. 692. As to a contract made by a liquidator for the sale of property of a Company in liquidation, see Re Colonial and General Gas Company, W.N. 1867, p. 42. 152. Appointment in certain cases of volmitar\j liquidators to office of official liquidators. — ^Where an order has been made for the vyinding-up of a Company subject to the super- vision of the court, and such order is afterwards super- seded(a) by an order directing the Company to be wound- up compulsorily, the court may in such last-mentioned order, or in any subsequent order, appoint the voluntary liquidators, or any of them, either provisionally or per- manently, and either with or without the addition of any other persons, to be official liquidators. (a) Afterwards superseded, ^c.J — See Be United Service Company, Law Rep. 7 Eq. 76. SUPPLEMENTAL PROVISIONS. 153. Dispositions after the commencement of the winding- tip avoided. — Where any Company is being wound-up by the 236 Tho Gompan'uis Ad, 1862. court or subject to the supervision of the court all dispo- sitions of the propertyj(a) efFectSj and things in action of the Company, and every transfer of shareSj(6) or alteration in the status of the members (c) of the Company, made between the commencement of the winding-up and the order for winding-up, shall, unless the court otherwise orders, (cZ) be void. (a) All dispositions of the proiierti/, ^^-c] — The object of tliis enactment is to prevent the improper alienation and disposition of the property of a Company in extremis, during the period whicli must elapse, before a petition to wind-up can be heard. But hand Jide dispositions of pro- perty of a Company in the ordinary course of its trade, made after the presenting of a petition for -winding-up, and completed before the winding-up order, will, as of course, in the exercise of the discretion given to the court by this section, be confirmed. AVhere, however, such dispositions are incomplete and rest in contract at the time of the winding-up order, the court has no discretionary power to order the contract to be fulfilled, and the person with whom it was entered into, though he has paid his money, has only a general claim as a creditor for damages in respect of the breach of contract. Where a customer of a trading Company had 6ond fide ordered and paid for goods, and the Company had loaded the goods on a railway to his address and sent him the invoices, after the presenting of the petition, but before the winding-up order, it was held that the dispo- sition of the property was complete before the winding-up order, and the goods were ordered to be dehvered to the customer : {jRe Wiltshire Iron Company, Ex parte Pearson, Law Rep. 3 Ch. App. 443.) (6) Erenj transfer ofshares.1 — Although under this section, the court has a discretion to make valid any dealings with shares, between the presentation of a petition for winding-up and the order made upon it, it was held (reversing the order of the blaster of the Rolls), that an agreement for the sale of shares in a Company, entered into in ignorance that a petition for winding-up the Company had been presented, was not enforcible or valid, so as to make the purchaser a contributory: (Re London, Hamburi/, and Continental J'xchange Bank; Emnu rson's case, Law Rep. 1 Ch. App'. 433 ; 1:.' Jui-. X. S. 692 ; 14 L. T. X. S. 746.) But the decision in this case, that the purchaser under the circum- stances stated cannot be placed on tlie list of contributories, does not affect the question, whether the seller has a right to be indemnified by the purchaser from all liabDitios on tlie sliares contracted to be sold. AVith regard to this point, it has been held by the Court of tiueen's Bench that this scclicm does not invalidate a contract for the sale of shares made in the interval betwoon the presentation of a petition and the order for a winding-up, nor prevent a transfer being made after tlie order has been made. Tlie case was an action by a vendor of shiiros against the purchaser. The declaration alleged (first and fourth counts) that a C^ompany under tiiis act had been ordered, on the 17th of l\[arch, to bo wound-up under the supervision of the Court of Chancery on a petition presented on the 7Ui of March ■ that after the commence- ment of the wmdmg-up the plaintiff agreed to sell, and the defendant to buy, oertam shares ui the Com] .any, tho defendant to pay or indemnify the pltuntiff from all calls then'after to be made, whilst the defendant Supplemental Provisions. 237 should be entitled to the shares ; brecach, that the defendant had not paid nor indemniiied the plaintiff against a svibsequent call. Fifth count, that after the Company had been ordered to be wound-up, the plaintiff and defendant, on the 5th of April, upon the terms agreed on betM'een them that the defendant should indenmify the plaintiff in respect of the shares, executed a deed of transfer, by which the plaintiff sold and transferred, and the defendant agreed to accept the shares, subject to the conditions on which the plaintiff then held them ; breach, that a subsequent call had been made on the plaintiff which the defen- dant had not repaid the plaintiff. The defendant pleaded, to the first and fourth counts, that the plaintiff did not execute a transfer of the shares to the defendant. To all the counts, that at the time of the making of the agreement and deed the plaintiff knew of the petition and of the commencement of the winding-up, but the defendant was ignorant of them ; that no sanction of the official liquidator or order of the court as to the sale or transfer of the shares hadbeen obtained ; that at the time of the making of the agreement and deed the plaintiff was not a member of the Company, nor registered as such, of which the defendant was ignorant ; that the defendant had not been registered or made a member of the Company, and there had been no default on the part of the Company in omitting his name from the register ; and that the defendant never made any express agreement to pay or indemnify the plaintiff ' against any calls made upon the shares. On demurrer to the pleas, it was held that the pleas were bad, and the counts good : (Rudge v. Bowman, Law Eep. 3 Q. B. 689.) Blackburn, J., said, when delivering judgment in this case, "Unless there is some clause in the statute to the contrary, I can see no reason why the transfer of shares should not be registered after a winding-up order has been made." . ..." If a man choose to speculate in the shares of a Company, being wound-up, on the chance of making a profit, and the holder is willing to sell, what is there in point of law forbidding such a bargain, or what is there in the statute which says that a bargain shall not take place ? The seller would stUl remain a contributory, and there is no section in the statute which says a contributory may not bargain as to shares ; nor do I see why one of the terms of the bargain -should not be a contract of indemnity, not altering in any way the liability of the transfer or to the Company, but giving him a right of indemnity over against his vendee, if he be called upon by the Company to pay any call." .... "As to the allegation that the defendant has not been registered, there is no reason why he should not now be registered." Mr. Justice Lush, in like manner, after observing that section 153 was the section which apphed to the case, it being a winding-up under the supervision of the court, and that that section only makes a transfer void in the interval between the petition and the order, likened the case to Burnett v. Lynch (5 B. & C. 589), in which it was held that where an assignee of a lease accepted the assignment, subject to the terms of the original lease, there was an implied contract on his part to indemnify the lessee from all consequences of a breach of the covenants in the lease. So in the present case there was an express clause in the transfer that the defendant was to take the shares subject to the conditions on which the plaintiff held them. The decision in this case shows that the courts will uphold the negotia- bility of shares and the efficacy of every contract to transfer them, except where there is an express statutory provision to the contrary, and strictly applicable to the precise point in question. 238 The Oomj'anies Act, 1862. See, also, Chapman v. Shepherd (Law Rep. 2 C. P. 228 ; 36 L. J. C. P. 113; 15 L. T. N. S. 477), p. 57, ante, as to the position of a broker who has purchased for a customer shares which come under the operation of this section. ■Where a Company executed a deed of transfer as a transferor of shares, and the winding-up of the Company commenced after the deed of transfer had been sent in for registration, but before it had been registered, it was held that the validity of the registration of the Com- pany as shareholders was not affected by this section : (Re Barned's Banking Company, Ex parte the Contract Corporation, Law Rep. 3 Ch. App. 106.) (c) Or alteration in the statu!) of the members.']— The directors of a bank, then in an insolvent condition, proposed to their shareholders that the holders of 101. shares, on which 71. had been paid, should advance dl. on this alternative : viz., if the bank should be able to go on the advance was to be treated as a loan at 10 per cent, interest ; while, if the bank were wound-up, the advance was to be taken as paid upon shares in anticipation of calls. On the day this proposal was made a friendly petition was presented by one of the directors, on which (and also on two others) an order was ultimately made for winding-up the Com- pany. It was held that the presentation of this petition rendered the arrangement come to on the same day invalid under this section, as being an " alteration in the status of the members of the Company made between the commencement of the winding-up and the order for winding-up ;" and that shareholders who had made the advance, with full knowledge of the presentation of the petition, were not entitled to adopt the alternative of treating it as paid upon their shares in anti- cipation of calls : (Re Oriental Commercial Bank, Barge's case. Law Rep. 5 Eq. 420.) (d) Unless the court otherwise orders.] — Where a Company's articles required that transfers of shares should be executed by the transferor and the transferee, and that the transferee should be approved of by the directors before the registration of the transfer, the court refused to exercise its discretion under this section, where these conditions had not been complied with : (Re Oierend, Giir-ney, and Company, Walker^s case. Law Rep. 2 Eq. 554 ; 35 L. J. Ch. 826) 154. The boohf! of the Cornjmny to he evidence. — Wliere any Company is being wound-up, all books, accounts, and documents of tlie Company and of the liquidators shall, as between the contributories of the Company, be j>//wia facie evidence ((t) of the truth of all matters purporting to be therein recorded. (a) Prima facie evidence] — ^Vhere a liquidator charged persons in his books without giving them notice, the court ordered the entry to be removed, and threw upon the liquiilator the onus of showing that such entry ought to bo restoroil : (fl, Madrid and Valencia Railway Company, Ex jnirlc Chadirick, 15 Jur. 697.) 155. As to dl'iposal ofhooJcs, accounts, and documents of the Cotwpany. — Where any Company has been wound-up under Supplemental Frovisionn. 239 this act, and is about to be dissolved, tbe books, accounts, and documents of the Company and of the liquidators may be disposed of in the following way ; that is to say, where the Company has been wound-up by or subject to the supervision of the court, in such way as the court directs, and where the Company has been wound-up voluntarily, in such way as the Company by an extraordinary resolution directs ; but after the lapse of five years from the date of such dissolution, no responsibility shall rest on the Company or the liquidators, or any one to whom the custody of such books, accounts, and documents has been committed, by reason that the same or any of them cannot be made forth- coming to any party or parties claiming to be interested therein. 156. Inspection of hoohs. — Where an order has been made for winding-up a Company by the court or subject to the supervision of the court, the court may make such order for the inspection by the creditors and contributories of the Company of its books and papers as the court thinks just, and any books and papers in the possession of the Company may be inspected (») by creditors or contributories in con- formity with the order of the court, but not further or otherwise. (a) Any hooks and papers in the possession of the Company may he inspected.l — ^The books and papers of a Company are the property of its shareholders, who are entitled to inspect them, though there is a secrecy clause in the Articles of Association, and though in the course of inspec- tion they -will become acquainted with matters which should be kept secret. But it is their duty not to divulge such information so acquired ; and the court will restrain them by injunction from so doing, and will puni^ tRem should they offend: (Re Birmingham Banking Company, Ex parte Brinsley, 36 L. J. Ch. 150 ; 15 L. T. N. S. 203.) 'In an action by a Company against an alleged shareholder for calls under a winding-up order, the court upheld the order of a judge at chambers giving liberty to the defendant, after plea, to inspect the registry of shares, the allotment and aj/erar/a books Lu the possession of the Company. The granting such an order is purely in the discretion of the judge at chambers, and the court will not review his exercise of such discre- tion, unless they clearly see that the order was wrong : (The Lancashire Cotton-Spinning Company v. Greatorex, 14 L. T. N. S. 290, Ex.) Where shareholders applied to the court for leave to inspect and take extracts from the books and papers of the Company, and to employ an accountant for that purpose, leave was granted subject to the limitation that only one inspection would be allowed to go on at once, that the inspection should be made at reasonable times, and that the contents of the documents should not be improperly disclosed : (Re Joint-Stock Discount Company, W. N. 1866, p. 341.) 240 The Companies Ad, 1862. 157. Poiver of assignee to sue. — ^Any person to wliom any thing in action belonging to the Company is assigned, in pursuance of this act, may bring or defend any action or suit relating to such thing in action in his own name. 158. Debts of all descriptions to he iwoved. — In the event of any Company being wound-up under this act, all debts payable on a contingency, and aU claims against the Com- pany, present or future, certain or contingent, (a) ascertained or sounding only in damages, shall be admissible to proof against the Company, (&) a just estimate being made, so far as is possible, of the value of all such debts or claims (c) as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value. (a) All claimn against the Company, present -or future, certain or con- tingent, §■£■.] — A Company was formed to carry on the business of a previously existing bank with limited liability, and the assets of the bank were handed over to the Company, and the business was thence- forward carried on in the name of the Company, which name differed but slightly from that of the bank. J. was a creditor of the bank in respect of a deposit at interest. No notice of the transfer of the business was sent to J., but the interest on his deposit was, in two successive half years after the transfer, sent by the Company to J.'s agents, and this payment was accepted by them. The Company then stopped, and was ordered to be wound-up. The letters, in which the interest was sent to the agents, were headed with the name of the Company, and spoke of the deposit being with them. J. carried in a claim for his deposit against the Company, and his claim was admitted by the official liquidator, and included in the chief clerk's certificate of the debts, and a dividend of 10s. in the pound was paid upon it. H., a contributory, afterwards moved to have J.'s claim expunged. It was held that J. had never accepted the Company as his debtors, and that his claim must be expunged, and that H. was not estopped, by reason of his knowledge of the objects for which the Company was forftied; and of the fact that the assets of the bank were handed over to the Company from disputing the claim of J. : {Re Commercial Bank Corporation of India and the East, 17 W. R. 9.i8 ; 18 I.. T. N. S. 668.) In the case of Re Continental Bank Cor/ioration, Ex parte London and Coiintii Bank (AV. ]S1. 1867, p. 84), a debt transferred hj one Company to another was held provoable against tlic first, although the creditor knew of the transfer, and had accepted interest from the transferee. In the voluntary winding-up of a banking Company, the creditors on deposit claimed interest at IJ per cent., being an increase on the pre- vious rate, by \'irtue of a resolution passed" by the directors shortly before the stoppage of (ho bank, but not comnnmicated to the depo- sitors, and of a subsequent letter from the liquidators to the effect that the inoveascd rate would be allowed. It was held that the resolution of tlie directors, not liaving l>een communicated to the depositors, was inoperative, and that the liquidators had no power to make the bank liable for an increased rate of interest. Interest was also oliiiiiicd upon bank notes and drafts current at the Surpjpl&mental Provisions. 241 time of the stoppage, and it was held that the claim made to the liqui- dator -was a sufficient presentation and demand for payment, according to the law of merchants, and interest at 5 per cent, was allowed from the date of the claim : (ije East of England Banking Company, Law Rep. 4 Ch. App. 14.) As to a claim by bankers for the balance of an account with compound interest, ^ei Re Hereford Journal Company, 'W.'S. 1868, p. 135. A person who has incurred liabilities as trustee for a Company has a right to be indemnified, in the winding-up of the Company, against such liabilities. M. was registered as the owner of 100 shares in the T. Company, but he really held them as the nominee and trustee of the N. Company, and had executed a declaration of trust to that effect. Both the Companies being in liquidation, calls to a large amount were made upon M. in respect of the shares, which calls he did not pay. It was held, on his application (affirming an order of Stuart, V.C.), that M. was entitled to rank as a creditor of the N. Company for the amount of the calls which had been made upon him and interest thereon, and also for any future calls on the same shares and interest thereon, he undertaking that the liquidator of the N. Company should be at liberty to pay over to the liquidator of the T. Company the dividends payable from time to time in the liquidation of the ST. Company to M. in respect of the calls, and the liquidator of the T. Company consenting to accept what might he so paid, in fuU satisfaction of aU claims against M. or his estate in respect of the 100 shares : {Re National Financial Company, Ex parte Oriental Commercial Bank, Law Rep. 3 Ch. App. 791.) See, also, Re Cefn Cilcen Mining Company (Law Rep. 7 Eq. 88), as to the right of directors to prove against a Company for moneys paid on account of it. Where stockbrokers were employed by the manager and certain directors of a Company, who had associated themselves together in a body called a " syndicate," for dealing in shares of the Company, to borrow money for them on the security of shares of the Company, and expended certain moneys in doing so, it was held that the brokers could maintain a claim for the money expended against the Company on the ground that, as no question as to the bona fides of the transaction arose, it was simply a question of indemnity, and that the rule that it is the duty of principals to indemnify their agents must prevail: (Re Impe- rial Mercantile Credit Association, Ex parte lonides, W. N. 1867, p. 131.) Servants of a Company, ordered to be wound-up under this act, are not on a different footing from other creditors, and are not entitled to payment in fuU in priority to other creditors, of any part of the wages or salary due to them at the date of the winding-up. They are entitled to prove for their salary on the footing of having had notice of discharge the day the winding-up order was made : (Ee General Rollino Stock Company, Chapman^s case. Law Rep. 1 Eq. 346.) Where, however, the business is continued after the winding-up order and the former servants are actually employed, the old contract between the Company and its servants continues in force, and notice of discharge must be given them in accordance with it : (iJe English Joint-Stock Bank Harding's case, Law Rep. 3 Eq. 341.) ' See, also. Re English Joint-Stock Bank, Ex parte Finney (W. N.'1867 p. 97), as to a claim for salary by the manager of a bank ; and Re Bank of Hindustan, China, and Japan, Ross's case (W. N. 1868 pp. 36 102), as to a similar claim. ' ' ' 242 The Gompcmies Act, 1862. See Re English Joint-Stock Bank, YellancCs case (Law Rep. 4 Eq. 350), for the principle upon which the amounts payable for salary and compensation to the manager of a banking Company in respect of his engagement which has been suddenly terminated by the winding-up of the Company, will be calculated. A Company which had taken a lease of a quarry, and covenanted for payment of the rent, was ordered to be wound-up, and the leasehold interest was sold under the winding-up. On the application of the lessor for leave to enter a claim for future rent, it was ordered that a claim should h& entered for the whole value of the f utiu-e rent, with the qualification that the lessor should not receive more than the amoimt which the Company might become liable to pay under the covenant ; the order to be without prejudice to any application to dissolve the Company, but no order of dissolution to be made without notice to the lessor : CRe Haytor Granite Company, Law Rep. 1 Ch. App. 77 ; 35 L. J. Ch. 164 ; 12 Jur. N. S. 1 ; 13 L. f . N. S. 515.) In a case similar to the last, where the lessor of premises to a Company had obtained leave to enter a claim for the amount at which the future rent was estimated, in the terms of the order in the last case, a dividend was paid by the liquidators, and it was held that the lessor was not entitled to have a sum equal to the dividend upon the amount at which the future rent was estimated, impounded, to secure payment of the future rent ; and a summons for that purpose was dismissed : (Re London and Colonial Company, Horsey's case. Law Rep. 5 Eq. 661.) An English and French Company had their chief offices in the city of London ; but two distinct boards of directors — an English one in London, and a French one in Paris. A member of the French board took a lease (not under the seal of the Company) of a house in Paris, as managing director of the association, for its offices there. The Company was ordered to be wound-up by the court here ; and the lessor came in to prove for (inter alia") the whole that was due to him in respect of the rent for the premises, the term in which was to expire in 1871. It was objected that the French directors had no authority to accept the lease, and generally that it was not binding on the Company here. It was held that the Company was bound by the lease, and that there should be a reference to chambers to ascertain what was due to the lessor in respect of it : (Be General International Agency Company, 16 L. T. N. S. 274, Ch. ; W. N. 1867, p. 137.) As to a claim by the promoters of a Company for promotion money, see Re Madrid Bank, Ex parte Williams (Law Rep. 2 Eq. 216), p. 16, ante. As to whether the transferee of securities under seal, issued by a Company, is bound by equities between the original holder and the Company, see pp. 20, 126, ante. See, also, AV China Steamship Company, Ex parte Mackenzie, Law Rep. 7 Eq. 240. Where a bank has issued a letter of credit, on the terms that the bills which they agree to accept are to be covered by bills of lading to a like amount, suspension of payment by the bank before there has been time for the letter of credit to be used, is not a breach or repudiation of contract ; inasmuch as permission might have been given to the liqui- dators under the winding-up to negotiate the bills ; and a claim by the holder of the letter of credit, under this act, for damages for the alleged breach, was disallowed : (Re Agra Bank, Ex parte Tondeur, Law Rep. 6 Eq. 160.) \ j ^ r Where a claim was made for a certain sum by a financial agent Supplemental Provisions. 243 for negotiating the purehase of a business by a Company, and it appeared on the evidence that the money claimed was to be paid on the completion of the negotiation, but the negotiation had not been com- pleted before the winding-up of the Company, the claim was disallowed, without prejudice to the claimant applying for payment for his services upon a quantum meruit : (Re English Joint-Stack Bank, Bradlaugh^s case, W. N. 1867, p. 12.) Under a winding-up subsequent to " The Winding-up Amendment Act of 1857," and prior to this act, on the Company being found to be insolvent, an annuitant was held entitled to prove under the winding- up for the estimated value of the annuity, without taking any prelimi- nary proceedings to estabUsh the amount as a debt : (Re English and Irish Church and University Assurance Society, Ex parte Hunt, 1 H. & M. 79; 7 L. T. N. S. 669.) Where the taxed costs of a successful application against a Company, were directed to be paid by the Company which was being wound-up, the official liquidator was held justified in refusing payment of the costs in preference to the other debts of the Company : {Re Scottish and Uni- versal Bank, Ex parte Ship, 11 Jur. N. S. 619, Ch. ; 12 L. T. N. S. 728.) (6) Shall be admissible to proof against the Company.] — For the practice with regard to the proof of debts, see General Order of November, 1862, clauses 20 — 28, post. If a . creditor who makes a claim wiU not submit to produce all the documents in his possession relating to his claim, it will be disallowed : (ije Constantinople and Alexandria Hotel Company, 35 Beav. 349.) In a winding-up under this act, the court adopts the rule in chancery, under which a mortgagee is entitled to receive a dividend on the full amount of his debt, and then make the most of his security, provided he does not receive in the whole more than 20s. in the pound, and the creditor of a Company holding security is entitled to prove for the whole amount that is due to him, and not merely, as the rule is in bankruptcy, for the balance remaining due after realising or valuing his security. A secured creditor is entitled to prove for the amount of his debt, as it stands at the time when his claim is sent in, without regard to securities which have been realised by him, between the sending in of his claim and its being adjudicated upon : (Re Bamed's Banking Company, Kellock's case ; Re Xeres Wine Shipping Company, Ex parte Alliance Bajik, Law Rep. 8 Ch. App. 769.) Bills of Exchange having been accepted by a banking Company and indorsed to a holder for value, the Company passed a resolution to wind-up voluntarily, and the winding-up was ordered to be continued under supervision. After this date, the holder received froih the drawer a composition of 8s. 6d. in the pound on the amount of the biUs. After the payment the holder, lodged a claim with the liquidator for the whole amount of the bill : it was held, that he was entitled to prove only for the balance, after deducting the part payment : (Re Oriental Commercial Bank, Ex parte Maxoudoff, Law Rep. 6 Eq. 582.) Where a sum of money was paid into a branch bank, on the same day on which the intelligence arrived that the head office had stopped payment, and it appeared on the evidence that the money was paid in before the message had been received, the court refused to order the money to be paid in preference to other claims : (Re Agra and Master- man's Bank, Ex parte Waring, W. N. 1866, p. 399.) Where a contractor with a Company was by his contract bound, at 244 The Oompames Act, 1862. the option of the Company, to accept payment to a certain amount in shares, it was held that after the Company had been ordered to be •wound-up, the contractor could not be called upon to accept payment in shares, the option not having been exercised till after the winding-up : (Re Alexandra Park Company, Sharon's claim, 12 Jur. N. S. 482, Ch.) An assignee of a debt due from a Company in course of winding-up does aU that is necessary to complete his title and to take the debt out of the order and disposition of the assignor (in case of his bankruptcy) by giving notice to the ofi&cial Hquidator : (Re Breech-Loading Armoury Company, Wragge's case, Law Rep. 5 Eq. 284.) With regard to one Company taking upon it the liabilities of another Company, and the right of the creditors of the latter to prove their claims in the winding-up of the former, see Re Era Assurance Company, Williams's case (1 H. & M. 672), and ReBrilish Provident Assurance Society, Ex parte Anglo-Australian Association (10 L. T. N. S. 326). (c) A just estimate being made of the value of all such debts or claims, ^•c.] — By Ride 25 of the General Order and Roles of November, 1862, the estimate is to be made according to the value of the debts and claims at the date of the order to wind-up the Company. This rule, however, only relates to contingent and unliquidated demands, and does not apply to claims which are defined and require no valuation under this section. For an explanation of the rule, see the judgment of Wood, V. C. : (Re Trent and Humber Company, Ex parte Cambrian Steam-Packet Company, Law Rep. 6 Eq. 399, n.) In April, 1865, Company A. entered into a contract witli Company B. to repair a steam ship, within the period of sixteen weeks from the 1st of April, 1865, for 1950^. On the 7th of August, 1865, an order was made for winding-up Company A. At this time the repairs of the ship were not completed, and the period (which had been extended to twenty weeks in consequence of a lock-out in the iron trade) had not expired. After some delay, the repairs were completed by the official liquidator of Company A. imder orders obtained in the winding-up ; and in May, 1866, the ship was delivered to Company B. Damages having been claimed by Company B. for loss of charter-parties and depreciation in value of the ship, between the time fixed by the contract for her com- pletion and the time of her actual delivery, it was held, first, that the claim was not barred by this section, nor by the 25th rule of the General Order of November, 1862 ; and, secondly, following Cory v. Thames Iron Works Company (Law Rep. 3 Q. B. 181), that the damages recoverable would be the net profit which Company B. might have obtained by chartering the vessel, it she had been delivered at the time fixed by the contract instead of in May, 1866 : (S. C. Law Rep. 6 Eq. 397.) 159. Oeneral scheme of liquidation may be sanctioned. — The liquidators may, (a) with the sanction of the court, (6) where the Company is being wound-up by the court or sub- ject to the supervision of the court, and with the sanction of an extraordinary resolution (c) of the Company where the Company is being wound-up altogether voluntarily, pay any classes of creditors in full, or make such compromise or other arrangement as the liquidators may deem expedient with creditors or persons claiming to be creditors, or per- sons having or alleging themselves to have any claim, pre- Supplemental Provisions. 245 sent or future, certain or contingent, ascertained or sound- ing only in damages against the Company, or whereby the Company may be rendered liable. (a) The liquidators may, SfC.'] — See now " The Liquidation Act, 1868," post, as to a scheme of liquidation. (6) With the sanction of the court.'] — Sufficient information as to a proposed compromise must be laid before the court before it will sanc- tion it : (Be Northumberland and Durham Banking Company, Ex parte Totty, 1 Drew. & Sm. 273 ; on appeal, 6 Jur. N. S. 849.) See, also, as to a compromise in a winding-up, Re Risca Coal and Iron Company (30 Beav. 528) ; on appeal (which was dismissed as being brought too late), (8 Jur. N. S. 900) ; and Re Central Darjeeling Tea Company (W. N. 1866, p. 361). (c) With the sanction of an extraordinary resolution, §-c.] — ^In the voluntary winding-up of a Company a claim was made, which was opposed, and the Equidator took out a summons to have it adjudicated upon by the court, to which the claimant consented. Evidence having been gone into, the liquidator was advised to effect a compromise, and terms were agreed upon, subject to approval by extraordinary reso- lution under this section, on the part of the shareholders. A meeting was accordingly summoned, and though the compromise was objected to by some of the shareholders, it was adopted. Further proceedings being threatened by the dissentients, another summons was taken out by the liquidator to show cause why the agreement should not be carried out, and upon its being adjourned into court the Master of the KoUs dechned to make any order, thinking that the court was bound, before giving its sanction, to satisfy itself that the compromise was advantageous to the Company, and that he had not sufficient materials to enable him to decide 'whether it was. The claimant appealed, and it was held that, as by the original summons the question was before the court when the meeting was held, the compromise could not be carried into effect without its sanction ; and that being so, that the court should not. confine itself to the mere duty of seeing whether the approval of the Company had been duly obtained, but was bound to satisfy itself that the agreement was a proper one. But in the face of the resolution of approval, the onus of showing the impropriety of the compromise, was shifted tQ the dissentients. Per Kolt, L. J. : Under the 138th section, supra, a con- tributory was not entitled to have the whole question reopened, and the propriety of the compromise determined, as if the Company was being wound-up by the court, and as if the Company had not in meeting approved of the compromise : (Re Lama Coal Company, Miller^s claim, Law Rep. 2 Ch. App. 692 ; 16 L. T. N. S. 726.) 160. Power to compromise. — The liquidators may, with the sanction of the court where the Company is being wound-up by the court or subject to the supervision of the court, and with the sanction of an extraordiaary resolution of the Company where the Company is being wound-up altogether voluntarily, compromise (a) all calls and liabilities to calls, debts, and liabilities capable of resulting in debts, and all claims, whether present or future, certain or con- 24)6 The Companies Act, 1862. tingent, ascertained or sounding only in damages, subsisting or supposed to subsist between the Company and any con- tributory or alleged contributory, or other debtor or person apprehending liability to the Company, and all questions in any way relating to or affecting the assets of the Company or the wiading-up of the Company, upon the receipt of such sums, payable at such times, and generally upon such terms as may be agreed upon, with power for the liquidators to take any security for the discharge of such debts or liabi- lities, and to give complete discharges in respect of aU or any such calls, debts, or liabilities. (a) TJie liquidators may comproviise, ^-c] — A judge in chambers may set aside a contract or compromise entered into with the official liquidator, if it is such as to require his sanction, but unless it requires such approval, he has no jurisdiction : (fle Leeds Banking Company ; Exparte Clarke, 12 Jur. N. S. 780, Ch. ; 14 L. T. N. S. 789, Ch.) See, also, Re Home Counties, Sfc, Company, Ex parte Garstin, 10 W. E. 457. In the case of Smith, Knight, and Company (W. N. 1868, p. 240), the Master of the Rolls (although expressing some doubt as to his power to do so) sanctioned an arrangement with contributories generally, by which the official liquidator was to accept, for calls, 20/., it paid within two months, in satisfaction of 251. payable within two years, although all the creditors had not assented to the arrangement. A release from the official liquidator discharging a shareholder of a Company from all habUities, claimB, and demands, which the Company or the official liquidator might have against him as a shareholder or contributory oi the Company, was held not to release him from liability for misconduct as a director : (Turquand v. Marshall, Law Rep. 6 Eq. 112.) Where a compromise has been duly made, all parties will be bound by it unless proceedings are taken at once to upset it. See Re Eastern Counties, |-c.. Railway Company, Underwood's case, 6 De G. M. & G. 677 ; Re Midland Union, S/v., Railicay Company, Liicy''s case, 4 lb. 356 ; Re Nister Dale Iron Company, Hughes's case, 1 De G. & S. 606. 161. Power for liquidators to accept shares, ^c, as a con- sideration for sale of property of Company. — Where any Company is proposed to he or is in the course of being wound-up altogether voluntarily, and the whole or a portion of its business or property is proposed to be transferred or sold to another Company, the liquidators of the first-men- tioned Company may, with the sanction of a special reso- lution (a) of the Company by whom they were appointed, conferring either a general authority on the liquidators, or an authority in respect of any particular arrangement, receive in compensation or part compensation for such transfer or sale, shares, policies, or other like interests in suoh other Company, for the purpose of distributWP Supplemental Provisions. 247 amongst the members of the Company being wound-up, or may enter into any other arrangement whereby the members of the Company being wound-up may, in lieu of receiving cash, shares, poHcies, or other like interests, or in addition thereto, participate in the profits of or receive any other benefit from the purchasing Company j and any sale made or arrangement entered into by the liquidators in pursuance of this section shall be binding on the members of the Com- pany being wound-up ; subject to this proviso, that if any member (6) of the Company being wound-up who has not voted in favour of the special resolution passed by the Com- pany of which he is a member at either of the meetings held for passing the same expresses his dissent from any such special resolution in writing addressed to the liquidators or one of them, and left at the registered office of the Company not later than seven days after the date of the meeting at which such special resolution was passed, such dissentient member may require the liquidators to do one of the follow- ing things as the Hquidators may prefer ; that is to say, either to abstain from carrying such resolution into effect, or to purchase the interest held by such dissentient member at a price to be determined in manner hereinafter mentioned, (c) such purchase-money to be paid before the Company is dis- solved, and to be raised by the liquidators in such manner as may be determined by special resolution : No special resolution shall be deemed invalid for the purposes of this section by reason that it is passed antecedently to or con- currently with any resolution for winding-up the Company, or for appointing liquidators ; but if an order be made within a year for winding-up the Company by or subject to the supervision of the court, such resolution shall not be of any validity unless it is sanctioned by the court. (a) The liquidators may with the sanction of a special resolution, §*c.] — For observations on the general scope and objects of this section, see the judgment of Wood, V. C, m Clinch v. Financial Corporation, Law Rep. 5 Eq. 471. This section olily applies to cases where the Company is being -wound- up voluntarily. See lie London and Exchange Bank, 16 L. T. N. S. 340 ; W. N. 1867, p. 63. It does not apply to the case of a -winding-up under supervision : (Re Hafod Hotel Company, W. N. 1868, p. 86.) See, also, -with regard to this section, Re Agra and Masterman's Bank (W. N. 1866, p. 400), and Be Scinde, Punjaiib, and Delhi Bank Corpora- tion (W. N. 1867, p. 41). At. a general meeting of the shareholders of a banking Company, resolutions were passed for the voluntary winding-up of the Company, and appointment of liquidators, and for confirming an agreement for 248 The Gompames Act, 1862. the amalgamation of the Company with the Bani of H., upon certain terms therein specified. The liquidators proceeded to wind-up the Com- pany upon the footing of the amalgamation, and in conformity with this section. Two dissentient shareholders, who were abroad at the time of the meeting, presented a petition impeaching the amalgamation on the ground of the insufficiency of the notice convening the meeting, and for other reasons ; and praying — 1, that the Company might he wound-up by the court ; 2, that if not, the voluntary winding-up might be continued under the supervision of the court ; 3, that the rights of the petitioners as against their co-contributories and the liquidators might be declared ; or 4, that they might be at liberty to use the names of the Company and the liquidators, in any proceedings they might be advised to take in reference to the winding-up. The order of the Master of the Rolls dismissing the petition was discharged, and it was held, first, that in the absence of any distinct allegations in the petition of misconduct on the part of the liquidators, the court would make no order for continuing the voluntary winding-up under the supervision of the court. Secondly, that inasmuch as the voluntary winding-up and the amalgamation were all one transaction, and the amalgamaltion could not be impeached in that jurisdiction, and in the absence of the Bank of H., the petition must stand over to permit the petitioners to take pro- ceedings to set aside the amalgamation. Thirdly, that the petitioners might be at liberty to use the names of the Company and the liquidators in such proceedings, on giving an undertaking to abide by such order as to costs as the court might make : (Re Imperial Bank of China, India and Japan, Law Rep. 1 Ch. App. 339 ; 35 L. J. Ch. 445 ; 12 Jur. N. S. 422 ; 14 L. T. N. S. 211.) Subsequently a bill was filed by the Imperial Bank of China, India, and Japan, and the two dissentient shareholders, and the amalgamation • was set aside. It was held, that ia order to bring a transfer of the business of one Company to another Company within the provisions of this section, the circular convening the meeting, at which the transaction is to be submitted to the shareholders, must contain distinct notice that the arrangement is to be carried out by the liquidators under this sec- tion. That an arrangement for the transfer of the business of Company A. to Company B., by which in addition to having their liabilities per share raised from 50/. to IQQL, the shareholders of Company A. can only obtain shares in Company B. upon payment of 6/. premium per share, is not a valid sale or arrangement witlun the provisions of this section. And that acquiescence to bind all the members of a Company to a bar- gain which there is no power to confirm, must be acquiescence by every member of the Company : (Impeiial Bml: of China, India, and Japan v. Bank of Hindustan, China, and Japan, Law Rep. 6 Eq. 91.) This section, as was pointed out by Lord Cairns in the case of Clinch V. The Financial Corporation (Law Rep. 4 Ch. App. 117), contemplates a sale of the assets of the liquidating Company for such an equivalent in value as is pointed out in the section, and does not contemplate the subjecting of the shareholders in the liquidating Com'- pany, without their imanimous consent, to fresh and original liabi- lities. The facts of this case were as follows : Company A. was formed for undertaking financial operations, its articles stipulating that the limitation of the liability of shareholders should be unalterable ; and power was given to the directors "to amalgamate with, or purchase, or acquire " the business and property of any Company formed to carry on Supplemental Provisions. 249 any business included in the objects of Company A. ; Company B. was formed -with the object of carrying on banking and financial ope- rations, and " any other further objects which the Company might from time to time adopt." In March, 1865, an agreement was come to between the respective directors for the amalgamation of these two Companies, upon the terms that the shareholders of Company A. were to be bound to take 25,000 shares of Company B. at 61. per share (to be credited as 5Z.), such sum of 150,000Z. to be paid for out of the assets of Company A., and if they were insufficient, by a call on the shareholders of Company A. By resolutions passed at an ex- traordinary general meeting of Company A., held in April, 1865, it was resolved that the amalgamation should be effected, pursuant to the terms of the agreement, and that Company A, should be wound- up. It was held (affirming the judgment of Wood, V. C, Law Rep. 5 Eq. 450) that such an arrangement was void, as being ultra vires ; and could not be supported under this section ; and it was considered, although the point did not actually arise in the case, that such an arrangement would be void, even if only the shareholders who assented to it were bound by it. A shareholder in Company A., the plaintiff in the case, first complained of the proposed arrangement in June, 1865. In September, 1865, notice of the registration of certain shares in Company B., under the arrangement, was first sent to the Registrar of Joint-Stock Companies. The plaintiil filed his biU on the 10th of November, 1865 ; it was held that he was not too late in coming to have the arrangement set aside, and that he was competent to sue on behalf of himself and of all the other shareholders (though many were assenting, and the arrangement had actually been carried into effect), to have the arrangement set aside. (6) Subject to this proviso, that if any member, Sfc] — No shareholder of a Company, which is in course of voluntary liquidation, is bound,' in the absence of express assent on his part, to accept shares in any other Company, although the liquidators may have agreed that such shall be taken, and such agreement may have been duly confirmed by a meeting of the shareholders in manner prescribed by this section. But if he do not express his dissent from the agreement in the manner, or within the time, specified in this section, he loses his right to have his interest purchased under its provisions. General powers of amalga- mation given to the directors in the articles of association do not authorise them to bind non-assenting shareholders to accept the new shares. And it seems no power which could be given to directors, short of express words to that effect, would enable them to do so : (Re Bank of Hindustan, China, and Japan, Higgs's case (2 H. & M. 657.) See, also, the same Bank, Ex parte Los (11 Jur. N. S. 661, Ch. ; 12 L. T. N. S. 690) ; and Re London, Bombay, and Mediterranean Bank, Drew's case (16 L. T. N. S. 657, Ch.j, ante.' In Re Scinde, Punjaub, and Delhi Bank Corporation (W. N. 1866, p. 41 ; 15 L. T. N. S. 602, Ch.) the court made an order (under sect. 138 of this act), confirming an agreement between the liquidators of a Company being voluntarily wound-up, and another Company, although certain shareholders dissented, and had given the notice required by this section. (c) To Tie determined in manner hereinafter mentioned.']— Where a shareholder, in the notice given by him to the liquidators, put the alter- native to purchase his shares, at the price which he gave for them, and 250 The Oompcmies Act, 1862. not at a price to be determined, &c., he was held not to have precluded himself from taking the benefit of the provisions of this and the follow- ing section : (Re Anglo-Italian Bank and De Rosaz, Law Kep. 2 Q. B. 452; 16 L. T. N. S.'412.) 162. Mode of deterrmning price. — The price to be paid for tlie purchase of the interest of any dissentient member may- be determined by agreement, but if the parties dispute about the same such dispute shall be settled by arbitration, and for the purposes of such arbitration the provisions of " The Companies Clauses ConsoHdation Act, 1845," (a) with respect to the settlement of disputes by arbitration, shall be incor- porated with this act; and in the construction of such provisions [h] this act shall be deemed to be the special act, and " the Company" shall mean the Company that is being wound-up, and any appointment by the said incorporated provisions directed to be made under the hand of the secre- tary, or any two of the directors, may be made under the hand of the liquidator, if only one, or any two or more of the liquidators if more than one. (a) The provvdons of "The Companies Clauses Consolidation Act, 1845," ^c] — These provisions of that act (8 & 9 Vict. c. 16) are as follows : 128. Ajipointment of arbitrator when questions are to be determined by arbitration. — When any dispute, authorised or directed by this or the special act, or any act incorporated therewith, to be settled by arbitration, shall have arisen, then, unless both parties shall concur in the appointment of a single arbitrator, each party, on the request of the other party, shall, by writing under his hand, nominate and appoint an arbitrator, to whom such dispute shall be referred, and after any such appointment shall have been made, neither party shall have power to revoke the same without the con- sent of the other, nor shall the death of either party operate as such revocation ; and if for the space of fourteen days after any such dispute shall have arisen, and after a request in writing shall have been served by the one party on the other party to appoint an arbi- trator such last-mentioned party fail to appoint such arbitrator, then upon such failure the party making the request, and having himself appointed an arbitrator, may appoint such arbitrator to act on behalf of both parties, and such arbitrator may proceed to hear and determine the matters which shall be in dispute ; and in such case the award or determination of such single arbitrator shall be final. 1 29. 1 'ncaiic;/ of arbitrator to Ic supplied. — If before the matters so referred shall be determined any arbitrator appointed by either party die, or become incapable, or refuse or for seven days neglect to act as arbitrator, the party by whom such arbitrator "was appointed may nominate and appoint, in writing, some other person to act in his place ; and if for the space of seven days after notice in writing from the other party for that purpose he fail to do so, the remaining or other arbitrator may proceed ex parte ; and every arbitrator so to be substituted as aforesaid shall have the Supplemental Provisions. 251 same powers and authorities as were vested iii the former arbitrator at the time of such his death, refusal, or disability, as aforesaid. 130. Appointment of umpire. — Where more than one arbitrator shall have been appointed, such arbitrators shall, before they enter upon the matters referred to them, nominate and appoint, by writing under their hands, an umpire to decide on any such matters on which they shaU differ ; and if such umpire shall die, or refuse, or for seven days neglect to act, they shall forthwith, after such death, refusal, or neglect, appoint another umpire in his place ; and the decision of every such umpire on the matters so referred to him shall be final. 131. Board of Trade empowered to appoint an umpire, on neglect of the arbitrators, in case of railway Companies. — If, in either of the cases aforesaid, the said arbitrators shall refuse, or shall, for seven days after request of either party to such arbitration, neglect to appoint an umpire, it shall be lawful for the Board of Trade, if they think fit, in any case in which a railway Company shall be one party to the arbitration, on the application of either party to such arbitration, to appoint an umpire, and the decision of such umpire on the matters on which the arbitrators shall differ shall be final. 132. Power of arbitrators to call for books, ^c. — The said arbi- trators, or their umpire, may call for the production of any documents in the possession or power of either party, which they or he may think necessary, for determining the question in dispute, and may examine the parties, or their witnesses, on oath, and administer the oaths necessary for that purpose. 133. Costs to he in the discretion of the arbitrators. — Except where by this or the special act, or any act incorporated therewith, it shall be otherwise provided, the cost of and attending every such arbitration to be determined by the arbitrators shall be in the discretion of the arbitrators, or their umpires, as the case may be. 134. Submission to arbitration to be made rule of court. — The sub- mission to any such arbitration may be made a rule of any of the Superior Courts, on the appUoation of either of the parties. (V) In the construction of such provisions, §-c.] — The incorporated provisions, by sects. 128 — 130, provide for the appointment of two arbitrators, one by each party ; and the arbitrators are to appoint an umpire ; but in case of their default, sect. 131 only provides that, if one of the parties be a railway Company, the appointment of an umpire is to be by the Board of Trade. A dispute as to the price to be paid for his shares having arisen between a shareholder and a Company not a railway Company, and the arbitrators having neglected to appoint an umpire, it was held, on the authority of Re Lord (1 Kay & J. 90 ; 24'L. J. Ch. 145), that the case was within sect. 12 of "The Common Law Pro- cedure Act, 1854 " (17 & 18 Vict. c. 125), and a judge could therefore 9,ppoint an umpire under that section : (Re Anglo-Italian Bank and Be Rosaz, Law Rep. 2 Q. B. 452 ; 16 L. T. N. S. 412.) 163, Certain attachments, sequestrations, and executions to be void. — Wliere any Company is being wound-up by the court or subject to tne supervision of the court, any attach- mentj sequestration, distress, or executioTi(a) put in force against the estate or effects of the Company after the 252 The Companies Act, 1862. commencement of the winding-up (6) shall be void to aU intents. (a) Any altachment, sequestration, distress, or execution, ^c] — ^Wliere an execution has been perfected by seizure before the commencement of the winding-up, a sale after the commencement is not a " putting in force of the execution " within this section : {Re Great Ship Company, Ex parte Parry, 33 L. J. Ch. 246 ; 10 Jur. N. S. 3 ; 9 L. T. N. S. 432. Turner, L.J.) In this case the sheriff, who made the seizure, received notice of the original motion, but not of the appeal, and he was held to be entitled to the costs of his appearance on the original motion, but not to any costs on the appeal. Notwithstanding this section, the court has power under the 87th section of this act, where a winding-up order has been made, to give leave to a creditor to proceed with an execution ; and it seems this section is chiefly directed against cases of fraudulent preference. See Re London Cotton Company (Law Rep. 2 Eq. 53 ; 35 L. J. Ch. 425 ; 12 Jur. N. S. 313), p. 174, ante. See, also. Re Imperial Steam and Household Coal Company, W. N. 1668, p. 105. In the case of Re Plas-yn-Mkowys Coal Company (Law Hep. 4 Eq. 689), the sheriff had the Company's property in execution, when the winding-up petition was presented. The sheriff was restrained, upon the ex parte application of the petitioner, from selling the property seized until after the hearing of the petition. On making the order to wind- up, the court ordered the sheriff to deliver up the property to the official- liquidator to he sold in the winding-up, reserving to the execution creditors the same priority against the proceeds of the sale, as if it had been made by the sheriff. The order (for the form of which see the report of the case) also provided for the payment of the charges of the sheriff, including his poundage. See, also. Re Hill Pottery Company, Law Rep. 1 Eq. 649. Where the winding-up petition was presented after the writ in an action against the Company had been served, but before judgment had been signed, and the creditor having no notice of the petition had obtained judgment, and a writ of execution had been issued and poses- sion taken by the sheriff before the winding-up order was obtained, the court, in the exercise of its discretion, imder sect. 87, supra, refused a motion for injunction to restrain execution. But the creditor was put upon terms in regard to the description of property to be taken : (Re Bastow and Company, Law Rep. 4 Eq. 681 ; 16 L. T. N. S. Ch. 788.) The rent of a colliery, demised to certain persons who declared them- selves trustees for a Company, fell into arrear, and the landlord put in a distress upon the premises. At that time a petition had been presented, upon which an order to wind-up the Company was afterwards made. Upon a petition by the landlord for leave to remove and sell the goods distrained, it was held that, notwithstanding this section, he was entitled to proceed with the distress and sell the goods of the Company upon the premises, and leave was given accordingly. It seems the pro- hibition contained in this section against enforcing a distress against the effects of a Company which has been ordered to be wound-up, applies only where the Company is the tenant : (Re Exhall Coal Mining Company, 33 L. J. Ch. 595 ; 10 Jur. N. S. 576 ; 10 L. T. M. S. 286.) See Re Waterloo Life, ^c, Assurance Company, 31 Beav. 589. Sv/pplemental Provisions. 253 Where an action brought by liquidators appointed in a voluntary •winding-up under supervision failed, the court refused to restrain execu- tion by the defendant for costs : {Re Bank of Hindustan, China, and Japan, Ex parte Levick and others, Law Rep. 5 Eq. 69.) And see the case of the same Company {Ex parte Joseph Mackrill Smith (Law Rep. 3 Ch. App. 125, ante), in which the lien of the defendant's solicitors on the judgment (obtained against the Company with costs) for his costs, was held to prevail against a right of set-off claimed by the Company ; and it was held that, if this section appUed to such a case and made the execution on the judgment void (as to which the court did not decide), the court of equity would put the defendant and his solicitors in the same position, as if the execution were not so technically restrained. H. having, recovered judgment against a Company, obtained a gar- nishee order against S., an alleged debtor to the Company. S. denied that he was indebted to the Company, and H., by leave of a judge, brought an action against him, and pending the proceedings, the Com- pany was ordered to be wound-up, and a liquidator was appointed. A motion by the liquidator for an injunction to restrain the proceedings at law was refused, but it was ordered that in case H. should recover a verdict, he should not put in force any execution against the estate of the Company in the hands of S. : {Re United English and Scottish Life Insurance Company, Law Rep. 5 Eq. 300.) See the judgment of Wood, L. J., in Re United English and Scottish Assurance Company, Ex parte Hawkins (Law Rep. 3 Ch. App. 790), for a dictum to the effect that the Court of Chancery, after the presentation of a petition for winding-up a Company, would not restrain a judgment- creditor who had obtained a garnishee order attaching money belonging to a Company previous to the presentation of such petition, from pur- suing his legal remedy and obtaining payment of the money. (6) The commencement of the winding-up.] — A winding-up commences when the petition is presented. See sect. 84, supra. 164. Frcmdulent preference. — Any such conveyance, mort- gage, delivery of goods, payment, execution, or other act relating to property (a) as vsrould, if made or done by or against any individual trader, be deemed in the event of his bankruptcy to have been made or done by way of undue or fraudulent preference (6) of the creditors of such trader, shall, if made or done by or against any Company, be deemed, in the event of such Company being wound-up under this act, to have been made or done by way of undue or fraudulent preference of the creditors of siich Company, and shall be invalid accordingly; and for the purposes of this section the presentation of a petition for winding-up a Company shall in the case of a Company being wound-up by the court or subject to the supervision of the court, and a resolution for winding-up the Company shall in the case of a voluntary winding-up, be deemed to correspond with the act of bankruptcy in the case of an individual 254 TJie Oompcmies Ad, 1862* trader; and any conveyance or assignment made by any Company formed under this act of all its estate and effects to trustees for the benefit of all its creditors shall be void to all intents. (a) Any act relating to property. "] — ^These acta are too numerous to be gone into here ; they will be found in works on the law of bankruptcy. (6) To have ieen done hy way of undue or fraudulent preference.^ — Though a Company is insolvent, it is not every act of the Company which will amount to a fraudulent preference. There must be a con- templation of bankruptcy, that is to say, of a winding-up, and there must be absence of pressure. A Company whose directors were empowered to issue debentures, and to borrow money " upon mortgage or otherwise," issued mortgage* debentures. Some of these were issued in fulfilment of contracts with tradesmen, whereby they agreed to furnish goods to the Company on being paid partly in cash and partly in debentures. Others were issued to the tradesmen as security for their cash balances. Others were issued on the 18th of October, in pursuance of an arrangement come to on the 29th of the previous September, whereby the Company agreed to pay the creditors 5s. in the pound in one month, 5s. in the pound in the following January, and the remaining 10s. in debentures. The only dissentient creditors came into the arrangement on the 29th of October ; but on that day a winding-up petition was presented, and they did not receive any debentures. A voluntary winding-up, Tinder a resolution passed on the 10th of November, was afterwards continued under super- vision. It was sought to impeach the last class of debentures on the ground of fraudulent preference ; but it was held ttat they were not invalidated, either by reason of the failure of the arrangement of the 29th of September, or on the ground of fraudulent preference under this section, and that they were all valid mortgages : (Be Inns of Court Hotel Company, Law Rep. 6 Eq. 82.) See, also, with regard to this section, Re Masons' Hall Tavern Com- pany, Habershon's case (Law Rep. 5 Eq. 286), and Re Smith, Knight, and Company, Ex parte Ashbury (Law Rep. 5 Eq. 223.) 165. Power of court to assess damages against delinqusnt directors and, officers. — Where, in the course of the winding- up of any Company under this act, it appears that any past or present director, manager, official or other Uquidator, or any officer of such Company, has misapplied or retained in his own hands, or become liable or accountable for any moneys of the Company, or been guilty of any misfeasance or breach of trust in relation to the Company, the court may, on the application of any liquidator or of any creditor or contributory of the Company, notwithstanding that the offence is one for whicli the offender is criminally responsible, examine into the conduct of such director, manager, or other officer, and compel him to repay any moneys so misapplied (a) or retained^ or for which he has Sv^lemental Provisions^ 266 become liable or accountablej together with interest after such rate as the court thinks just, or to contribute such sums of money to the assets of the Company by way of compensation in respect of such misapplication, retainer, misfeasance, or breach of trust, as the court thinks just. (a) Compel him to repay any moneys so misapplied, Sj-c.'] — A Company being in course of voluntary winding-up, a petition was presented, under this section, by some of the contributories, charging the directors with misapplication of moneys of the Company, and praying a winding-up by the court. The evidence being insufficient to establish the case of mis- application, but sufficient to lay ground for inquiry, the court refused to direct an inquiry, but gave liberty to the petitioners to file a bill in the name of the Company against the directors, the petitioners to indemnify the Company against the costs. It was doubted by Turner, L. J., whether this section of the act applies under a voluntary winding-up. Where it does apply, the court has a discretion as to whether the remedies given by it should be resorted to : (Re Bank of Gibraltar and Malta, Law Rep. 1 Ch. App. 69 ; 11 Jur. N. S. 916; 13L. T. N. S. 386.) The jurisdiction to make directors or other officers of a Company, who have misapplied or retained moneys of the Company, repay the moneys so misapplied or retained, given by this section, is only applicable in cases of a simple character. Where the matter is complicated, the repayment must be enforced by bill. A summary order was made, under this section, that directors who had received from the promoter of a Company sums of money in consideration of their becoming directors, which sums he had paid out of the funds of the Company, should repay the moneys which they had so received. A similar order was made that the directors should repay moneys which they had paid themselves as fees, after a petition had been presented to wind-up the Company, and notice had been served on them not to part or deal with the moneys of the Company : (Re Brighton Brewery Company, Hunt's case, 37 L. J. Ch. 278 ; W. N. 1868, p. 56.) And it was held, in another case, that no order will be made under this section to compel a director or officer of a Company to refund any moneys he has misapplied or retained, unless the case against such director or officer be clearly and distinctly made out, and there is no question of law to be determined : (Re Royal Hotel Company of Great Yarmouth, Law Rep. 4 Eq. 244 ; 16 L. T. N. S. 655.) See, also. Re Reese River Silver Mining Company, W. N. 1867, p. 139. This section does not apply as against the representatives of a deceased director. Where acts of directors or other officers sought to be inquired into are the acts of a body of persons, some of whom are dead — qussre, whether the court can proceed against the survivors under the section, or whether a suit is not necessary: (Re East of England Bank, Feltom's Executors' case. Law Rep. 1 Eq. 219 ; 35 L. J. Ch. 196 ; 13 L. T. N. S. 741.) 166. Penalty on falsification of looks. — If any director, officer, or contributory of any Company wound-up under this act destroys, mutilates, alters, or falsifies any books, papers, writuigs, or securities, or makes or is privy to the making of any false or fraudulent entry in any register. 256 The Oom^cmies Ad, 1862. book of aooountj or other document belonging to the Company, with intent to defraud or deceive any person, every person so offending(a.) shall be deemed to be guilty of a misdemeanor, and upon being convicted shall be liable to imprisonment for any term not exceeding two years, with or without hard labour. (a) Every person so offending.^ — See, also, 24 & 25 Viet. c. 96, s. 82, et seq. 167. Prosecution of delinquent directors in the case of winding-wp by court. — Where any order is made for wiudiug- up a Company by the court or subject to the supervision of the court, if it appear ia the course of such winding-up that any past or present director, manager, oflBcer, or member of such Company has been guilty of any offence in relation to the Company for which he is criminally responsible, the court may, on the application of any person(«) interested in such winding-up, or of its own motion, direct the official liquidators, or the liquidators (as the case may be), to institute and conduct a prosecution or prosecutions for such offence, and may order the costs and expenses to be paid out of the assets of the Company. (a) On the application of any person, ^c] — As to the maBner of maJcing the application, see clause 51 of the General Order of November, 1862, post. 168. Prosecution of delinquent directors, ^c, in case of voluntary winding-up. — Where a Company is being wound- up altogether voluntarily, if it appear to the liquidators conducting such winding-up that any past or present director, manager, officer, or member of such Company has been guilty of any offence in relation to the Company for which he is criminally responsible, (a) it shall be lawful for the liquidators, with the previous sanction of the court, (?)) to prosecute such offender, and all expenses properly incurred by them in such prosecution shall be payable out of the assets of the Company in priority to all other liabilities. (a) For wliicli lie is criminally )r.v/)0))s!ft?e.]— Criminal responsibility is incurred where one takes or applies for his own use any property of the Company ; where he keeps fraudulent accounts ; where he wilfully destroys, or mutilates, or alters any books, &c., belonging to the Company; and where he makes, circulates, or publishes fraudulent Btatonionts (see 24 & 25 Vict. c. 96, ss. 81—87). Criminal proceed- ings under this act do not affect any remedy at law or equity (for •which see p. 40, ante) which the party aggrieved may have against the persons guilty of the above-mentioned offences. Power of Courts to make Rules. 267 (b) With the previous sanction of the court."] — See clause 51 of the General Order of November, 1862, post. 169. Penalty of perjury. — If any person, upon any exami- nation upon oath or affirmation authorised under this act, or in any affidavit, deposition, or solemn affirmation in or about the winding-up of any Company under this act, or otherwise in or about any matter arising under this act, wilfully and corruptly gives false evidence, he shall, upon conviction, be liable to the penalties of wilful perjury. POWEE OF COUETS TO MAKE EULIS. 170. Power of Lord Ghancellor of Great Britain to make rules. — In England the Lord Chancellor of Great Britain, with the advice and consent of the Master of the Rolls, and any one of the Vice-Chancellors for the time being, or with the advice and consent of any two of the Vice-Chancellors, may, as often as circumstances require, make such rules concerning the mode of proceeding {a) to be had for wind- ing-up a Company in the Court of Chancery as may from time to time seem necessary, but until such rules are made the general practice of the Court of Chancery, including the practice hitherto in use in winding-up Companies, shall, so far as the same is appHcable and not inconsistent with this act, apply to all proceedings for winding-up a Company. (a) Make such rules concerning the mode of proceeding, Sfc] — See the General Order and Rules of November, 1862, post. 171. Power of Court of Session in Scotland to make rules. — In Scotland the Court of Session may make such rules concerning the mode of winding-up as may be necessary by act of sederunt ; but, until such rules are made, the general practice of the Court of Session in suits pending in such court shall, so far as the same is applicable, and not incon- sistent with this act, apply to all proceedings for winding- up a Company, and official liquidators shall in all respects be considered as possessing the same powers as any trustee on a bankrupt estate. 172. Power to make rules in Stannaries Court. — The vice- warden of the Stannaries may from time to time, with the consent provided for by section twenty-three of the act of eighteenth of Victoria, chapter thirty-two, make rules for carrying into effect the powers conferred by this act upon the court of the vice-warden, but, subject to such rules, the 3 258 The Companies Act, 1862. general practice of the said court and of the registrar's oflBce in the said court, including the present practice of the said court in winding-up CompanieSj may be applied to all proceedings under this act ; the said vice-warden may like- wise, with the same consent, make from time to time rules for specifying the fees to be taken in his said court in pro- ceedings under this act ; and any rules so made shall be of the same force as if they had been enacted in the body of this act ; and the fees paid in respect of proceeding taken under this act, including fees taken under "The Joint- Stock Companies Act, 1856," in the matter of winding-up Com- panies, shall be apphed exclusively towards payment of such additional ofiS.cers, or such increase of the salaries of existing officers, or pensions to retired officers, or such other needful expenses of the court, as the Lord Warden of the Stannaries shall from time to time, on the appHcation of the vice- warden or otherwise, think fit to direct, sanction, or assign, and meanwhile shall be kept as a separate fund apart from the ordinary fees of the court arising from other business, to await such direction and order of the lord warden herein, and to accumulate by investment in Government securities until the whole shall have been so appropriated. 173. Power of Lord Ghancellor of Ireland to malce rules. — In Ireland the Lord Chancellor of Ireland may, as respects the winding-up of Companies in Ireland, with the advice and consent of the Master of the Rolls in Ireland, exercise the same power of making rules as is by this act herein- before given to the Lord Chancellor of Great Britain ; but until such rules are made the general practice of the Court of Chancery in Ireland, including the practice hitherto in use in Ireland in winding-up Companies, shall, so far as the same is applicable and not inconsistent with this act, apply to all proceedings for winding-up a Company. PART V. REGISTRATION OFFICE. 174. Constitution of reghfratioii office— The registration of Companies under this act shall be conducted as follows: (that is to say,) (1.) The Board of Trade may from time to time appoint such registrars, assistant registrars, clerks, and Registration Office, 259 servants as tliey may think necessary for the regis- tration of Companies under this act, and remove them at pleasure : (2.) The Board of Trade may make such regulations as thoy think fit with respect to the duties to be performed by any such registrars, assistant registrars, clerks, and servants as aforesaid : (3.) The Board of Trade may from time to time determine the places at which offices for the registration of Companies are to be established, so that there be at all times maintained in each of the three parts of the United Kingdom at least one such office, and that no Company shall be registered except at an office within that part of the United Kingdom in which by the Memorandum of Association the registered office ' of the Company is declared to be established; and the board may require that the registrar's office of the court of the vice-warden of the Stannaries shall be one of the offices for the registra^tion of Companies formed for working mines within the jurisdiction of the court : (4.) The Board of Trade may from time to time direct a seal or seals to be prepared for the authentication of any documents required for or connected with the registration of Companies : (5.) Every person may inspect .the documents kept by the Registrar of Joint- Stock Companies ; and there shall be paid for such inspection such fees as may be ap- pointed by the Board of Trade, not exceeding one shil- ling for each inspection ; and any person may require a certificate of the incorporation of any Company, or a copy or extract of any other document or any part of any other document, to be certified by the registrar ; and there shall be paid for such certificate of incorpora- tion, certified copy, or extract, such fees as the Board of Trade may appoint, not exceeding five shillings for the certificate of incorporation, and not exceeding sixpence for each folio of such copy or extract, or in Scotland for each sheet of two hundred words : (6.) The existing registrar, assistant registrars, clerks, and other officers and servants in the office for the registration of joint-stock Companies shall, during the pleasure of the Board of Trade, hold the offices and receive the salaries hitherto held and received by them, but they shall in the ex;ecution of 260 The Companies Act, 1862. their duties conform to any regulations tliat may be issued by the Board of Trade : (7,) There shall be paid to any registrar, assistant- registrar, clerk, or servant that may hereafter be employed in the registration of joiat-stock Companies such salary as the Board of Trade may, with the sanction of the Commissioners of the Treasury, direct : (8.) Whenever any act is herein directed to be done to or by the Eegistrar of Joint- Stock Companies, such act shall, until the Board of Trade otherwise directs, be done in England to or by the existing Registrar of Joint-stock Companies, or, in his absence, to or by such person as the Board of Trade may for the time being authorise ; in Scotland to or by the exist- ing Registrar of Joiat- Stock Companies in Scotland; and in Ireland to or by the existing Assistant Regis- trar of Joint-Stock Companies for Ireland, or by such person as the Board of Trade may for the time being authorise in Scotland or Ireland in the absence of the registrar; but in the event of the Board of Trade altering the constitution of the existiag registry office, such act shall be done to or by such officer or officers, and at such place or places with reference to the local situation of the registered offices of the Companies to be registered, as the Board of Trade may appoint. PART VI. APPLICATION OF ACT TO COMPANIES REGISTERED UNDER THE JOINT-STOCK COMPANIES ACTS. 175. Definition of Joint-Stoch Companies Acts. — The ex- pression " Joint-Stock Companies Acts " as used in this act shall mean " The Joint-Stock Companies Act, 1856," " The Joint-Stock Companies Acts, 1856, 1857," "The Joint- Stock Banking Companies Act, 1857," and "The Act to enable Joint-Stock Banking Companies to be formed on the Principle of Limited Liability," or any one or more of such acts, as the case may require ; but shall not include the act Sassed in the eighth year of the reign of Her present lajesty, chapter one hundred and ten, and intituled An Act for the Reijistrafimi, Incorporation, and Regulation of Joint- Stock Companies. Application of Act to Companies registered, Sfc. 261 176. Application of act to Companies formed under Joint- StocTc Companies Acts. — Subject as hereinafter mentioned, (a.) this act, with the exception of Table A. in the first schedule, shall apply to Companies formed(fe) and registered under the said. Joint- Stock Companies Acts, or any of them, in the same manner in the case of a limited Company as if such Company had been formed and registered under this act as a Company limited by shares, and in the case of a Company other than a limited Company as if such Company had been formed and registered as an unlimited Company under this act, with this qualification, that wherever refer- ence is made expressly or impliedly to the date of registra- tion, such date shall be deemed to refer to the date at which such Companies were respectively registered under the said Joint-Stock Companies Acts or any of them, and the power of altering regulations by special resolution given by this act shall, in the case of any Company formed and registered under the said Joint-Stock Companies Acts or any of them, extend to altering any provisions contained in the table marked B. annexed to " The Joint-Stock Companies Act, 1856," and shall also in the case of an unlimited Company formed and registered as last aforesaid extend to altering any regulations relating to the amount of capital or its dis- tribution into shares, notwithstanding such regulations are contained in the Memorandum of Association. (a) Subject as hereinafter mentioned.'] — See the observations of Lord Cranworth, L. C, on these words, in his judgment : (Ke London India- rubber Company, Law Rep. 1 Ch. App. 329.) See, also, Part "VJLU. of this act. (6) This act shall apply to Companies formed, ^-c] — The Court of Chancery Appeal decided that a Company registered imder the former Joint-Stock Companies Acts may be wound-up voluntarily under the supervision of the court, without being re-registered under this act : (Re London India rubb er Company, Law Rep. 1 Ch. App. 329 ; 35 L. J. Ch; 592 ; 12 Jur.NTg. 402 ; 14 L. T. N. S. 316.) See, also, B& Torquay Bath Company (32 Beav. 581 ; 9 Jur. N. S. 633), and Bowes v. Hope Life Insurance Company (11 Ho. Lords Cas. 389). 177. Application of act to Compamies registered under Joint- Stoch Companies Acts. — This act shall apply to Companies registered but not formed under the said Joint- Stock Com- panies Acts or any of them in the same manner as it is hereinafter declared to apply to Companies registered but not formed under this act, with this quaUfioation, that wherever reference is made expressly or impliedly to the 262 The Gompcmies Act, 1862. date of registration^ sucli date shall be deemed to refer to the date at which such Companies were respectively regis- tered under the said Joint-Stock Companies Acts or any of them, 178. Mods of tn-ansferring shares. — Any Company regis- tered under the said Joint-Stock Companies Acts or any of them may cause its shares to be transferred in manner hitherto in use, (a) or in such other manner as the Company may direct. (a) Transferred in manner hitherto in use, ifc.'] — This provision is inserted because the act does not re-enact the provisions of the act of 1856 with reference to the transfer of shares. PART VII. COMPANIES AUTHORISED TO REGISTER UNDER THIS ACT. 179. Regulations as to registration of existing Companies. — The following regulations shall be observed with respect to the registration of Companies under this part of this act ; (that is to say,) (1.) No Company having the liability of its members limited hj Act of Parliament or letters patent, and not being a joint-stock Company as hereinafter de- fined, (a) shall register under this act in pursuance of this part thereof : (2.) No Company having the liability of its members limited by act of l-*arliament or by letters patent shall register under this act in pursuance of this part thereof as an unlimited Company, or as a Company limited by guarantee : (3.) No Company that is not a joint-stock Company as hereinafter defined shall in pursuance of this part of this act register under this act as a Company limited by shares : (4.) No Company shall register under this act in pur- suance of this part thereof unless an assent to its so registering is given by a majority of such of its members as may be present, personally or by proxy, in cases Avhere proxies are allowed by the regulations of the Company, at some general meeting summoned for the purpose : (5.) Where a Company not having the liability of its Companies a/athorised to register under this Act, 263 members limited by act of Parliament or letters patent is about to register as a limited Company, tlie majority required to assent as aforesaid shall consist of not less than three-fourths of the members present, personally or by proxy, at such last-men- tioned general meeting : (6.) Where a Company is about to register as a Com- pany limited by guarantee the assent to its being so registered shall be accompanied by a resolution declaring that each member undertakes to contribute to the assets of the Company, in the event of the same being wound-up, during the time that he is a member, or withia one year afterwards, for pay- ment of the debts and liabilities of the Company contracted before the time at which he ceased to be a member, and of the costs, charges, and expenses of winding-up the Company, and for the adjustment of the rights of the conti-ibutories amongst them- selves, such amount as may be required, not exceed- ing a specified amount : In computing any majority under this section when a poll is demanded regard shall be had to the number of votes to which each member is entitled according to the regulations of the Company of which he is a member. (a) A joint-stock Company as hereinafter defned.J — For this defimtion see sect. 181, infra. 180. Companies capable of heing registered. — ^With the above exceptions, and subject to the foregoing regula- tions, (a) every Company existing at the time of the com- mencement of this act, including any Company registered(&) under the said Joint-Stock Companies Acts, consisting of seven or more members, and any Company hereafter formed in pursuance of any act of Parliament other than this act, or of letters patent, or being a Company engaged in work- ing mines within and subject to the jurisdiction of the Stannaries, or being otherwise duly constituted by law, and consisting of seven or more members, may at any time hereafter register itself under this act(c) as an unlimited Company, or a Company limited by shares, or a Company limited by guarantee ; and no such registration shall be invalid by reason that it has taken place with a view to the Company being wound-up. (a) Subject to the foregoing regutatiom.'] — See, also, sects. 182 — 184 and sect. 188, infra. 264 The Oompcmies Act, 1862. (b) Including any Company registered.'] — This act applies to them ■whether they register under it or not. See sects. 176 and 177, supra. (c) May at any time hereafter register itself under this act."] — See Re London Indiaruhher Company (Law Rep. 1 Ch. App. 329), and Re Torquay Bath Company (32 Beav. 581 ; 9 Jur. N. S. 633). 181. — Definition of joint-stock Company. — ^For the pur- poses of this part of ttis act, so far as the same relates to the description of Companies empowered to register as Companies limited by shares, a joint-stock Company shall be deemed to be a Company having a permanent paid-up or nominal capital of fixed amount, divided into shares, also of fixed amount, or held and transferable as stock, or divided and held partly in one way and partly in the other, and formed on the principle of having for its members the holders of shares in such capital, or the holders of such stock, and no other persons ; and such Company when re- gistered with limited liability under this act shall be deemed to be a Company limited by shares, (a) (a) Shall be deemed to be a Company limited by shares."] — See, however, the proviso in the next section with regard to bankiiig Companies. 182. Proviso as to hanking Company. — ^No banking Com- pany (a) claiming to issue notes in the United Kingdom shall be entitled to limited liability in respect of such issue, but shall continue subject to unlimited liability in respect thereof, and, if necessary, the assets shall be marshalled for the benefit of the general creditors, and the members shall be liable for the whole amount of the issue, in addition to the sum for which they would be liable as members of a limited Company. (a) No banking Company.] — See, also, sect. 188, infra. 183. Requisitions for registration by Companies. — Pre- viously to the registration in pursuance of this part of this act of any joint-stock Company(a) there shall be delivered to the registrar the following documents ; (that is to say,) (1.) A list showing the names, addresses, and occupations of all persons who on a day named in such list, and not being more than six clear days before the day of registration, were members of such Company, with the addition of the shares held by such persons re- spectively, distinguishing, in cases where such shares are numbered, each share by its number : (2.) A. copy of any act of Parliament, royal charter, letters patent, deed of settlement, contract ,of co- Com/panies authorised to register under this Act. 265 partnery, cost-book regulations, or other instrument constituting or regulating the Company : (6) (3.) If any such joint-stock Company is intended to be registered as a limited Company, the above list and copy shall be accompanied by a statement specifying the following particulars ; (that is to say,) The nominal capital of the Company and the number of shares into which it is divided : The number of shares taken and the amount paid on each share : The name of the Company, with the addition of the word " limited" (c) as the last word thereof: With the addition, in the case of a Company intended to be registered as a Company limited by guarantee, of the resolution declaring the amount of the guarantee. (a) Any joint-stock Company.] — See sect. 181, supra. (6) Instrument constituting or regulating the Company.'] — With regard to insurance Companies completely registered under 8 Vict. c. 110, see sect. 209, infra. (c) The addition of the word ^'■limited."] — See sect. 190, infra. 184. Requisitions for registration hy existing Company not being a joint-stock Company. — Previously to the registration in pursuance of this part of this act of any Company not being a joint-stock Company there shall be delivered to the registrar a list showing the names, addresses, and occu- pations of the directors or other managers (if any) of the Company, also a copy of any act of Parliament, letters patent, deed of settlement, contract of copartnery, cost book regulations, or other instrument constituting or re- gulating the Company, with the addition, in the case of a Company intended to be registered as a Company limited by guarantee, of the resolution declaring the amount of guarantee. 185. Power for existing Company to register amount of stoch instead of shares. — Where a joint-stock Company (a) autho- rised to register under this act has had the whole or any portion of its capital converted into stock, such Com- pany shall, as to the capital so converted, instead of deliver- ing to the registrar a statement of shares, deliver to the registrar a statement of the amount of stock belonging to the Company, and the names of the persons who were holders of such stock, on some day to be named in the 266 The Oompcmies Act, 1862. statement not more than six clear days before the day of repfistration. (a) Where a joint-stock Company.'] — See sect. 181, supra. 186. Authentication of statements of existing Gom/panies. — The lists of members and directors and any other particulars relating to the Company hereby required to be delivered to the registrar shall be verified by a declaration of the directors of the Company delivering the same, or any two of them, or of any two other principal officers of the Company, made in pursuance of the act passed in the sixth year of the reign of his late Majesty King WiUiam the Fourth, chapter sixty -two. 187. Registrar may require evidence as to nature of Com- pany. — The registrar may require such evidence as he thiuks necessary for the purpose of satisfying himself whether an existing Company is or not a joint-stock Company as hereinbefore defined, (a) (a) As hereinbefore defined.'] — For the definition, see sect. 181, supra. 188. On registration of banhin^ Company with limited liability notice to be given to customers. — Every banking Company [a) existing at the date of the passing of this act which registers itself as a limited Company shall, at least thirty days previous to obtaining a certificate of registration with limited liability, give notice that it is intended so to register the same to every person and partnership firm who have a banking account with the Company, and such notice shall be given either by delivering the same to such person or firm, or leaving the same or putting the same into the post addressed to him or them at such address as shall have been last communicated or otherwise become known as his or their address to or by the Company; and in case the Company omits to give any such notice as is hereinbefore required to be given, then as between the Company and the person or persons only who are for the time being interested in the account in respect of which such notice ought to have been given, and so far as respects such account and all variations thereof down to the time at which such notice shall be given, but not further or otherwise, the certificate of registration with limited liability shall have no operation. (a) Ercry banking Company.] — See, also, sect. 182, supra. 189. Exemption of certain Companies from, payment of fees. — No fees shall be charged in respect of the registration Oompanies authorised to register under this Act. 267 n pursuance of this part of this act of any Company in cases where such Company is not registered as a limited Company^ or where previously to its being registered as a limited Company the liability of the shareholders was limited by some other act of Parliament or by letters patent. 190. Power to Oom.'pcmy to change name. — Any Company authorised by this part of this act to register with limited liability shall, for the purpose of obtaining registration with limited liability, change its name, by adding thereto the word " limited." 191. Certificate of registration of existing Gowpanies. — Upon compliance with the requisitions in this part of this act contained with respect to registration, and on payment of such fees, if any, as are payable under the tables marked B. and C.(a) in the first schedule hereto, the registrar shall certify under his hand that the Company so applying for registration is incorporated as a Company under this act, and, in the case of a limited Company, that it is limited, and thereupon such Company shall be incorporated, (&) and shaU have perpetual succession and a common seal, with power to hold lands ; and any Banking Company in Scot- land so incorporated shall be deemed and taken to be a bank incorporated, constituted, or established by or under act of Parliament. (a) Fees payable under the' tables marked B. and C] — The tables marked B. and C. will be found posi. (fc) Sitch Company shall be incorporated, ^c] — As to the rights, liabi- lities, &c. of an incorporated Company, see sect. 18, supra. 192. Gertifieate to he evidence of compliance with act. — A certificate of incorporation giyen at any time to any Com- pany registered in pursuance of this part of this act shall be conclusive evidence (a) that all the requisitions herein contained in respect of registration under this act. have been complied with, (&) and that the Company is authorised to be registered under this act, as a limited or unlimited Company, as the case may be, and the date of incorporation mentioned in such certificate shall be deemed to be the date at which the Company is incorporated under this act. (a) ShaU be conclusive evidence.] — Other evidence may, however, be used to prove registration. See Mostyn v. Calcott Hall Mining Company (1 Fos. & Fin. 334), and also Agriculturists' Cattle Insurance Company v. Fitzgerald (16 Q. B. 432). But see Reg. y.Frankland, 9 Jur. N. S. 388. 268 The Companies Act, 1862. (J) That all the requisitions herein contained have been complied with.] — See Oakes v. Turquand and Harding, Re Overend, Gumey, and Company (Law Rep. 2 H. L. 326), regarding the effect of the certificate of the registrar under sect. 18, supra. See, also, New Brunswick Railway Company v. Boore, 3 H. & N. 249 ; Banwen Iron Company v. Barnett, 8 C. B. 406 ; Re Independent Assurance Company, Bird's case, 1 Sim. N. S. 47 ; Pilbrow v. Pilbrow's Atmospheric Railway Company, 5 C. B. 440. The certificate, however, seems not conclusive as to the provisions of the act being applicable to a Company : (Re Northumberland and Durham District Banking Company, 3 De G. & J. 357.) See Re Torquay Bath Company, 32 Beav. 581 ; 9 Jur. N. S. 633 ; 8 L. T. N. S. 527. 193. Transfer of property to Company. — All such property, real and personalj including aU interests and rights in, to, and out of property, real and personal, and including obli- gations and things in action, (a) as may belong to or be vested in the Company at the date of its registration under this act, shall on registration pass to and vest in the Company as incorporated under this act for all the estate and interest of the Company therein. (a) Obligations and things in action.] — See the next section. 194. Registration under this act not to affect obligations incurred previously to registration. — The registration in pur- suance of this part of this act of any Company shall not affect or prejudice(a) the liability of such Company to have enforced against it, or its right to enforce, any debt or obh- gation incurred, or any contract entered into, by, to, with, or on behalf of such Company previously to such registration. (a) SJiall not affect or prejudice.] — See Grou.r's Improved Soap Company V. Cooper (8 C. B. N. S. 800), where it was held that a surety to a Com- pany registered under 7 & 8 Vict. c. 110, and registered with limited liability under 18 & 19 Vict. c. 133, was not discharged by such regis- tration ; and Hull Flax and Cotton Company v. Wellesly, 6 H. & N. 38. But see Re Sheffield and Hallamshire Ancient Order of Foi-e.iters'' Co- operative and Industrial Society, Ex parte Fountain (1 1 Jur. N. S. 553, Ch., on appeal ; 12 L. T. N. S. 335), Dean v. Mellard (15 C. B. N. S. 19), and Linton v. Blakeney Inditstrial Society (3 H. & C. 853). 195. Continuation of existing actions and suits. — Al l such actions, suits, and other legal proceedings as may at the time of the registration of any Company registered in pur- suance of this pai-t of this act have been commenced by or against such Company, or the public officer or any member thereof, may be continued in the same manner as if such registration had not taken place; nevertheless, execution shall not issue against the effects of any individual member of such Company upon any judgment, decree, or order ob- Companies authorised to register under this Act, 269 tained in any action, suit, or proceeding so commenced as aforesaid; but in the event of the property and effects of the Company being insufficient to satisfy such judgment, decree, or order, an order may be obtained for winding-up the Company. 196. Effect of registration under act. — When a Company is registered under this act(a) in pursuance of this part thereof, all provisions contained in any act of Parliament, deed of settlement, contract of copartnery, cost book regu- lations, letters patent, or other instrument constituting or regulating the Company, including, in the case of a Com- pany registered as a Company Hmited by guarantee, the resolution declaring the amount of the guarantee, shall be deemed to be conditions and regulations of the Company, in the same manner and with the same incidents as if they were contained in a registered Memorandum of Association and Articles of Association ; and all the provisions of this act shall apply to such Company and the members, contribu- tories, and creditors thereof, in the same manner in all respects as if it had been formed under this act, subject to the provisions following ; (that is to say,) (1.) That Table A. in the first schedule to this act shall not, unless adopted by special resolution, apply to any Company registered under this act in pursuance of this part thereof : (2.) That the provisions of this act relating to the num- bering of shares shall not apply to any joint-stock Company whose shares are not numbered : (3.) That no Company shall have power to alter any pro- vision contained in any act of Parliament relating to the Company : (4.) That no Company sball have power, without the sanction of the Board of Trade, to alter any provi- sion contained in any letters patent relating to the Company : (5.) That in the event of the Company being wound-up, every person shall be a contributory, (&) in respect of the debts and liabilities of the Company contracted prior to registration, who is liable, at law or in equity, to pay or contribute to the payment of any debt or liability of the Company contracted prior to registration, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members amongst themselves in respect of any such 270 The OoTwpcmies Ad, 1862. debt or liability ; or to pay or contribute to the pay- ment of tbe costs, charges, and expenses of winding- tip the Company so far as relates to such debts or liabilities as aforesaid ; and every such contributory shall be liable to contribute to the assets of the Com- pany, in the course of the winding-up, all sums due from him in respect of any such liability as aforesaid ; and in the event of the death, bankruptcy, or insol- vency of any such contributory as last aforesaid, or marriage of any such contributory being a female, the provisions hereinbefore contained with respect to the representatives, heirs, and devisees of deceased contributories, and with reference to the assignees of bankrupt or insolvent contributories, and to the hus- bands of married contributories, shall apply : (6.) That nothing herein contained shall authorise any Company to alter any such provisions contained in any deed of settlement, contract of copartnery, cost book regulations, letters patent, or other instrument constituting or regulating the Company, as would, if such Company had originally been formed under this act, have been contained in the Memorandum of Association, and are not authorised to be altered by this act : But nothing herein contained(c) shall derogate from any power of altering its constitution or regulations which may be vested in any Company registering under this act in pursuance of this part thereof by virtue of any act of Par- liament, deed of settlement, contract of copartnery, letters patent, or other instrument constituting or regulating the Company. (a) When a Company is registered under this act, ^.J — As_to whether a Company, once registered under the act as an unlimited Company, can be converted by its shareholders into a limited Company, compare this section with sect. 12, supra. (6) Every person shall he a contributory, ^-c."] — There is no provision in this act (corresponding to the 116th section of "The Companies Act, 1856") directing that creditors of limited Companies, subject to a wind- ing-up order in respect of liabilities incurred under a contract of un- limited partnership, should lose none of their remedies. Hence, where an industrial society, imdor the Act of 1852, being in difficulties, had, iu order to be wound-up, become recistered under "The Industrial Societies Act, 1862," which incorporates this act, it was held that the members of the society were not liable to contribute beyond the full amount of tlieir shares, in respect of the rights of persons who were cn-ditors of the society when the winding-up order was made: {Re Sheffield and liallarnshire Ancient Order of Foresters' Co-operative and Application of Act to unregistered Companies , 271 Industrial Society, Ex parte Fountain, lljur. N. S. 553, Ch., on appeal; 12 L. T. N. S. 335.) (c) But nothing herein contained, §■«.] — A Company who had, under their original deed of settlement, a power to reduce their capital, were held to have lost that power by being registered as a " Company Limited" under this act: (2Ae Droitwich Patent Salt Company, Limited, V. Curzon, Law Rep. 3 Ex. 35.) See, now, howeyer, sect. 9 of "The Companies Act, 1867," ^osi. 197. Power of court to restrain further proceedings. — The court majj at any time after the presentation of a petition for winding-up a Company registered in pursuance of this part of this act, and before making an order for winding- up the Company^ upon the application by motion of any creditor of the Company, restrain further proceedings (a) in any action, suit, or legal proceeding against any con- tributory of the Company as well as against the Company as hereinbefore proyided, upon such terms as the court thinks fit. (a) Restrain further proceedings."] — See sects. 85, 195, and 196, supra, and also sect. 201, infra. 198. Order for winding-up Gompany. — Where an order has been made for winding-up a Company registered iu pursuance of this part of the act, in addition to the pro- visions hereinbefore contained, (a.) it is hereby further pro- vided that no suit, action, or other legal proceeding shall be commenced or proceeded with(6) against any contributory of the Company in respect of any debt of the Company, except with the leave of the court, and subject to such terms as the court may impose. (a) Provisions hereinbefore contained.'] — See sects. 87 and 196, supra. (J) Shall he commenced or proceeded with.] — See sects. 195, supra, and 202, infra. PAE,T VIII, APPLICATION OF ACT TO UNREGISTERED COMPANIES. 199. Winding-up of unregistered Companies. — Subject as hereinafter mentioned, any partnership, association, or Com- pany, (a) except railway Companies incorporated (&) by act of Parliament, consisting of more than seven members, and not registered under this act, and hereinafter included under the term unregistered Company, may be wound-up under this act, and all th§ provisions of this act with respect to 272 The Oompawies Act, 1862. winding-up shall apply to sucli Company, with the following exceptions and additions : (1.) An unregistered Company shall, for the purpose of determining the court having jurisdiction in the matter of the winding-up, be deemed to be regis- tered in that part of the United Kingdom where its principal place of business is situate j or, if it has a principal place of business situate in more than one part of the United Kingdom, then in each part of the United Kingdom where it has a principal place of business ; moreover the principal place of business of an unregistered Company, or (where it has a prin- cipal place of business situate in more than one part of the United Kingdom) such one of its principal places of business as is situate in that part of the United Kingdom in which proceedings are being instituted, shall for all the purposes of the winding- up of such Company be deemed to be the registered oflBce of the Company : (2.) No unregistered Company shall be wound-up (c) under this act voluntarily or subject to the super- vision of the court : (3.) The circumstances under which an unregistered Company may be wound-up iire as follows; (that is to say,) [a.) Whenever the Company is dissolved, or has ceased to carry on business, or is carrying on business only for the purpose of winding-up its affairs ; (6.) Whenever the Company is unable to pay its debts ; (c.) Whenever the court is of opinion that it is just and equitable (d) that the Company should be wound- up : (4.) An unregistered Company shall, for the purposes of this act, be deemed to be unable to p^its debts, (e) (a.) Whenever a creditor to whom t^ Company is indebted, at law or in equity, by assignment or otherwise, in a sum exceeding fifty pounds then due, has served on the Company, by leaving the same at the principal place of business of the Com- pany, or by delivering to the secretary or some director or principal officei' of the Company, or by otherwise serving the same in such manner as the court may approve or direct, a demand under his hand requiring the Company to pay the sum so due, and the Company has for the space of three AppUoation of Ad to unregistered Oompcmies. 273 weeks succeeding the service of sucli demand neg- lected to pay such, sum, or to secure or compound for the same to the satisfaction of the creditor ; (6.) Whenever any action, suit, or other proceeding has been instituted against any member of the Com- pany for any debt or demand due, or claimed to be due, from the Company, or from him in his character of member of the Company, and notice in writing of the institution of such action, suit, or other legal proceeding having been served upfon the Company by leaving the same at the principal place of business of the Company, or by delivering it to the secretary, or some director, manager, or principal officer of the Company, or by otherwise serving the same in such manner as the court may approve or direct, the Company has not within ten days after service of such notice paid, secured, or compounded for such debt or demand, or procured such action, suit, or other leg^l proceeding to be stayed, or indemnified the defendant to his reason- able satisfaction against such action, suit, or other legal proceeding, and against all costs, damages, and expenses to be incurred by him by reason of the same ; (c.) Whenever, in England or Ireland, execution or other process issued on a judgment, decree, or order obtained in any court in favour of any creditor in any proceeding at law or in equity instituted by such creditor against the Company, or any member thereof as such, or against any person authorised to be sued as nominal defendant on behalf of the Company, is returned unsatisfied ; (d.) Whenever, in the case of an unregistered Company engaged in working mines within and subject to the jurisdiction of the Stannaries, a customary decree or order absolute for the sale of the machinery, materials, and effects of such mine has been made in a creditor's suit in the court of the vice-warden ; (e.) Whenever, in Scotland, the inducise of a charge for payment on an extract decree, or an extract regis- tered bond, or an extract registered protest, have expired without payment being made ; (/.) Whenever it is otherwise proved to the satisfaction of the court that the Company is unable to pay ita debts^ 274 ths Oompanies Act, 1862. (a) Any partnership, asssociation, or Company.'] — These words were held to be wide enough to include a joint-stock Company formed in India and incorporated by registration under Indian law, and having its principal place of business in India, with an agent and a branch oifiee in England, and it was held that it might be wound-up under this act : (Ee Commercial Bank of India, Law Rep. 6 Eq. 517.) It appears that mutual insurance societies unincorporated and unre- gistered may be wound-up under this act. See tie Shields Marine Insiirance Association, Lee and Moor's case (Law Rep. 6 Eq. 368), Ee London Marine Insurance Association (W. N. 1869, p. 108), and Re London and Westminster Insurance Company, Ex parte Phillips (3 De G. & S. 3 ; 14 Jur. 929). These associations being pretty numerous, some information concerning them may be viseful. They are usually estabUshed by shipowners for marine insurance, with the object of indemnifying each other against loss, and without any view to profit. The members are associated together by virtue only of several mutual contracts, whereby each member, on effecting an insurance of his own ship, becomes bound to contribute to a loss sustained by any other member. Each society of this kind is of course governed by the rules it has laid down for its own regulation. With regard to the rules of such societies, and the rights and liabilities of the members of them as among themselves, see Bromley v. Wiliiams (32 Beav. 177), Re Shields Marine Insurance Association, Lee and Moor's case (Law Rep. 5 Eq. 368), Re London Marine Insurance Association (W. N. 1869, p. 108), and Harvey v. Beckwith (4 N. R. 90, 258). With regard to an action on a policy by a member of such an association, see Strong v. Harvey (3 Bing. 304), where it was held that an association, in which there was no joint profit and loss to be divided among the members, did not constitute a partnership. It appears that scrip Companies may also be wound-up under this act. See Re Mexican and South American Mining Company, Barclay's case, 26 Beav. 177. Some Companies, whUe still unincorporated, and having no registered memorandum and articles, issue what is. called a "scrip certificate." This is a document acknowledging the right of the person named in it (or, more commonly, the holder) to obtain certain specified shares in the imdertaking when it is estabUshed. The certificate, although giving a right to acquire the shares specified, does not obhge the holder to take them : (Re Littlehampton, Havre, and Honjleur Steam- ship Company, 34 Beav. 256 ; 2 De G. J. & S. 521 ; and Jackson v. Cocker, 4 Beav. 59.) If transferable to bearer it must have a penny stamp (17 & 18 Vict. c. 63, s. 8), the transfer of it operates merely as the assignment of a bargain : (Knight v. Barber, 16 M. & W. 66 : Tempest v. Kilner, 2 C. B. 300.) Those Companies in which nothing is required in order to make shareholders of such scripholders, and in which no distinction is made between the two classes ai-e termed "scrip Companies." See, also, on this subject. Re Mexican and South Atneiican Mining Company, Griseivood's case (4 De G. & J. 544), A.^ton's case (lb. 820), and Re Littlehampton, Havre, and Honjleur Steamship Company, Ormerod's case (Law Rep. 5 Eq. 110). Cost-book Mining Companies. A mining Company on the cost-book principle may also be wound-up under this act, and the coiu^t of the vice- warden of the Stannaries is the proper jurisdiction for winding it up, where it is engaged in working a Application of Ad to unregistered Oompanies. 275 mine in Cornwall or Devon (Re East Botallack Consolidated Mining Company, 34 Beav. 82). Such Companies are usually formed in these counties. A number of adventurers, who have obtained permission to work a lode, club together to form a capital. They meet and agree as to the number of shares the capital is to be divided into, and the number to be allotted to each. An agent is appointed, commonly called a purser, for the purpose of managing the affairs of the mine under the control of the shareholders. They enter in a book called the " cost- book " the mimites of their proceedings, comprising the agreement they have entered into, and the names of all the shareholders with the number of shares held by each entered opposite to his name, and the minutes are sigTied by all present. The purser, or one or two of the adventurers, then take from the owner of the lode a lease or a licence to dig, or both, (called a sett) for a term of years. In the cost-book are entered from time to time all the affairs of the partnership, the receipts and expendi- ture of the mine, the transfers of shares, and the minutes of meetings . at which the accounts are passed, calls made, dividends declared, or new resolutions come to as to the working of the mine, &c. The shares may be transferred or relinquished, if the cost-book regu- lations do not provide to the contrary, by any shareholder, so far as his brother shareholders are concerned, without their consent. With regard to the constitution of these Companies, see Collier on Mines, 2nd edit. p. HI, et seq. ; and Watson v. Spratley (24 L. J. Ex. 53). With regard to the power of shareholders to transfer or relinquish their shares, see Re Bodmin United Mines Company (23 Beav. 378), Re Pennant and Craigwen Company, Fenn's case (4 De G. M. & G. 285), Maijhew's case (5 lb. 837), Birch's case (2 De G. & J. 10), and Toll v. Lee (4 Exch. 230). As to the liabOity of shareholders to creditors for goods supplied, see Lanyon v. Smith (3 B. & S. 938), Harvey v. Clough (2 N. R. 204), Newton V. Daly (1 Fos. & Fin. 26), Tredwen v. Bourne (6 M. & W. 461), Ellis\. Schmceck (5 Bing. 521), and Peel v. Thomas (15 C. B. 714). As to the winding-np of these Companies, see Re Wheal Lovell Mining Company, Exparte Wyld (1 Mac. & G. 1), Re Bosworthon Mining Company (26 L. J. Ch. 612), and Re Wheal Anne Mining Company (10 W. B. 830). (6) Except railway Companies incorporated, SfC.~\ — Railway Companies coming under the operation of " The Abandonment of Railways Act, 1850 " (13 & 14 Vict. c. 83) may now be wound-up under this act. See "The RaUway Companies Act, 1867 " (30 & 31 Vict. c.l27), sect. i\,post. (c) No unregistered Company shall be wound-up, §-c.] — A Company registered under the act of 1856 (18 & 19 Vict. c. 47), but not under this act, may be wound-up voluntarily, imder a resolution passed after this act came into operation. The words " unregistered Company" in this section mean a Company not registered imder any act, and not a Company unregistered under this act : (Re Torquay Bath Company, 32 Beav. 581 ; 9 jur. N. S. 633.) See Boiaes v. The Hope Mutual Life Assurance Society, 35 L. J. Ch. 574, In Dom. Proc. See, also, the observations of Lord Cranworth, L. C, on the last case, in his judgment in Re London Indiarubber Company, Law Rep. 1 Ch. App. 329. As to industrial and provident societies Bee post. (d) Whenever the court is of opinion that itis just and equitable, ^c] — A winding-up order was made in the case of a canal Company incorpo- rated by special act of Parliament, on the gronnd nf Ha i^oing jugt and 276 The Oompcunies Act, 1862. equitable, under this section, the canal being worked at a loss : (iJe Wey and Arun Junction Canal Company, Law Rep. 4 Eq. 197 ; 36 L. J. Ch. 509.) See sect. 79, supra, as to when the court will think it just and equi- table to wind-up a Company. An order to wind-up was also made, under this section, in the case of He Company of Proprietors of Basingstoke Canal Navigation (W. N. 1866, p. 251). See, also, the case of Re Isle of Wight Ferry Company (34 L. J. Ch. 194). (e) Deemed to be unable to pay its debts.'] — As to when a registered Company shall be deemed unable to pay its debts, see sects. 79 and 80, supra. 200. Who to he deemed a contributory in the event of Company being wound-up. — In tlie event of an unregistered Company being wound-up every person shall be deemed lo be a contributory(a.) who is liable, at law or in equity, to pay or contribute to the payment of any debt or lia- bility of the Company, or to pay or contribute to the payment of any sum for the adjustment of the rights of the members amongst themselves, or to pay or contribute to the payment of the costs, charges, and expenses of windiag-up the Company, and every such contributory shall be liable to contribute to the assets of the Company in the course of the winding-up all sums due from him in respect of any such Hability as aforesaid ; but in the event of the death, bankruptcy, or insolvency of any contributory, or marriage of any female contributory, the provisions herein- before contained with respect to the personal representa- tives, heirs, and devisees of a deceased contributory, and to the assignees of a bankrupt or insolvent contributory, and to the husband of married contributories, shall apply. (a) Every person shall be deemed to be a contributory, ^c] — J. C. took 300 shares in a cost-book mining Company, and in order to increase the apparent number of shareholders, and thereby cause the mining scheme to be more favourably regarded in the share market, caused 100 of them to be transferred into the name of A., and 100 to be transferred into the name of B., who, notwithstanding the transfers, neither attended meet- ings nor paid calls, nor took aaiy part in the affairs of the Company. It was held, that, having regard to the absence of any bona fide trusteeship on the part of A. and B., and to the extended definition of the word " contributory " in this section, J. C. was properly inserted on the list of contributories in respect of the whole 300 shares : (^Wheal Emily Mining Company, Cox's case, 33 L. J. Ch. 145 ; 9 Jur. N. S. 1184 ; 9 L. T. N. S. 493.) Where the rules of an unregistered Mutual Marine Insurance Com- pany provided that, upon any ship insured with the Company being mortgaged, the mortgagee should give a guarantee for the payment of all averages and contributions due, or to become due, in respect of the ship, it was held, that a mortgagee who had given such ft Application of Act to unregistered Companies. 277 guarantee to the Company was not a contributory within the meaning of this section: (fie Shields Marine Insurance Association, Lee and Moor's case. Law Rep. 5 Eq. 368.) See, also, Re London Marine Insurance Association (W. N. 1869, p. 108) : and Be Exkall Mining Company, Blechlifs case (15 W. R. 1104; 16 L. T. N. S. 784). 201. Power of court to restrain further proceedings. — The court may-j at any time after the presentation of a petition for winding-up an unregistered Company, and before making an order for winding-up the Company, upon the application of any creditor of the Company, restrain fur- ther proceedings in any action, (a) suit, or proceeding against any contributory of the Company, or against the Company as hereinbefore provided, upon such terms as the court thinks fit. (a) Restrain further proceedings in any action, ^-c] — See sect. 85' supra, and Re Great Ship Company, Ex parte Parry (33 L. J. Ch. 245 i 10 Jut. N. S. 3), p. 163, ante, a case decided under this section. See, also, sects. 197 and 199, supra. 202. Effect of order for winding-up Company. — Where an order has been made (a.) for winding-up an unregistered Company in addition to the provisions hereinbefore con- tained (6) in the case of Companies formed under this act, it is hereby further provided that no suit, action, or other legal proceeding, (c) shall be commenced or proceeded with against any contributory of the Company in respect of any debt of the Company, except with the leave of the court, and subject to such terms as the court may impose. (a) Where an order has been made, ^c] — After an order has been made for winding-up, a judgment-creditor will be restrained by injunction from proceeding to execution under a Ji. fa. against the Company: {Re Waterloo Assurance Company, 31 Beav. 589 ; 32 L. J. Ch. 371.) But see sects. 87 and 163, supra. (b) The provisions hereinbefore contained.'] — These provisions are con- tained in Part IV. of this act. (c) No suit, action, or other legal proceeding, ^-c] — The defendants in an action who were members of an unregistered society, enrolled and certified under the Industrial and Provident Societies Act (15 & 16 Vict. c. 31) gave a promissory note in the following form for a debt of the society : — " Twelve months after date, we, the undersigned, being members of the executive committee, on behalf of the London and South- Western Railway Co-operative Society, do jointly promise to pay," &e. They were held to be personally liable. After the making of this note the society was registered under " The Industrial and Provident Societies Act, 1862 " (25 & 26 Vict. c. 87) ; and, after action brought, an order was obtained for winding it up under this act, and proceedings under that order were taken in the County Court. Tie plaintiff had not obtained leave to proceed imder this section, and it was held 278 The Oompcmies Ad, 1862. that the omission to obtain such leave could not be taken advantage of by plea to the further maintenance of the action; but only, if at all, by application to the court in which the proceedings under the wLndmg- up order were being pursued : (Gray v. Roper, Law Rep. 1 C. P. 694.) In an action against a shareholder in a Company, working a mine on the cost-book system, for goods supplied to the Company, it appeared that after the defendant had parted with his shares in it, the remaining members of the Company caused it to be registered under the Joint- Stock Companies Act (21 & 22 Vict. c. 60), and an order was made by the court of the vice-warden of the Stannaries to wind-up the Company, and stay all actions by creditors against it, and a list of contributories was drawn up, in which the name of the defendant was included. On an application to stay the action, it was held that the plaintiff had a right to proceed, and that the court of the vice- warden had no power to make that order, as the defendant was not a member of the registered Company, and the debt sued for was not a debt of that Company : (Lanyon v. Smith, 3 B. & S. 938.) See, also, Harvey y. Clough (8 L. T. N. S. 324, Ex.), following the last decision. 203. Provision m case of unregistered Gom/pany. — ^If any unregistered Company has no power to sue and be sued in a common name^ or if for any reason it appears expedient, the court may, by the order made for winding-up such Company, or by any subsequent order, direct that all such property, real and personal, including aU interest, claims, and rights into and out of property, real and personal, and including things in action as may belong to or be vested in the Company, or to or in any person or persons on trust for or on behalf of the Company, or any part of such property, is to vest in the official liquidator or official liquidators by his or their official name or names, and there- upon the same, or such part thereof as may be specified in the order, shall vest accordingly, and the official liqui- dator or official liquidators may, in his or their official name or names, or in such name or names, and after giving such indemnity as the court directs, bring or defend any actions, (a) suits, or other legal proceeding relating to any property vested in him or them, or any actions, suits, or other legal proceedings necessary to be brought or defended for the purposes of effectually winding-up the Company and recovering the property thereof. (o) Brinfi or dc/cml any action.^, .W.] — Under sect. 95 of this act, the official liquidator of an unregistered Company which is being wound-up under this act, has power in his own name, and on behalf of the Com- pany, without the vesting order mentioned in this section to institute a suit in equity against directors of the Company, for the purpose of com- pelling them to make good losses occasioned by their misconduct in the management of its affairs : {Turquand v. Marshall, Law Rep. 6 Eq. Repeal of Acts and Temporary Provisions. 279 See, also, on this subject, The Grand Trunk Railway Company v. Brodie, 3 De G. Mac. & G. 146 ; Riddick v. Deposit and General Life Assurance Company, 9 Ir. Com. Law. Kep. 84 ; McDowell v. Davys, 8/6.43. 204. Provisions in this part of act cumulative. — The pro- visions made by this part of the act with respect to unre- gistered Companies shall be deemed to be made in addition to and not in restriction of any provisions hereinbefore con- tained with respect to winding-up Companies by the courts and the court or official Hquidator may, in addition to any- thing contained in this part of the act, exercise any powers or do any act in the case of unregistered Companies which might be exercised or done by it or him in winding-up Companies formed under this act ; but an unregistered Company shall not, except in the event of its being wound- up, be deemed to be a Company under this act, and then only to the extent provided by this part of this act. PAUT IX. REPEAL OF ACTS AND TEMPORARY PROVISIONS. 205. Repeal of acts. — After the commencement of this act there shall be repealed(a.) the several acts specified in the first part of the third schedule hereto, (6) with this qualification, that so much of the said acts as is set forth in the second part of the said third schedule shall be hereby re-enacted and continue in force as if unrepealed. (a) There shall ie repealed, J'c] — As to this, see the next section. As to the acts repealed, see the note to the third schedule of this act. (V) The third schedule hereto, ^-c] — For the third schedule to this act, see post. 206. Saving clause as to repeal. — No repeal hereby enacted shall affect, (1.) Anything duly done(a) under any acts hereby re- pealed : (2.) The incorporation of any Company registered under any act hereby repealed : (3.) Any right or privilege acquired(&) or liability incurred under any act hereby repealed : (4.) Any penalty, forfeiture, or other punishment incurred in respect of any offence against any act hereby repealed : 280 The Companies Act, 1862. (5.) Table B. in tlie schedule annexed to " The Joint-Stock Companies Act, 1856/' or any part thereof, so far as the same applies to any Company existing at the time of the commencement of this act. (a) Anything duly done, ^c] — A petition was presented for the winding-up of a Company, after which a resolution of the Company waa passed for the voluntary winding of it up. This act then came into operation, after which the Company was registered under it. Upon the petition, which was entitled as above stated, coming on to be heard, it was objected that it ought to have been entitled in the Companies Act of 1862 ; it was held to be sufficiently entitled without the addition of this act : (Re Public Life Assurance Society, 7 L. T. N. S. 302, Ch.) (5) Any right or privilege acquired, Sfc.'] — The power given to a Com- pany, by the 41st section of " The Companies Act, 1856 " (19 & 20 Vict. c. 47), to contract for land by a person acting under its expressed or impbed authority, is not, as regards a Company formed under that act, taken away by this act, although it repeals the act of 1856 ; for it is a ' ' right or privilege " preserved by this section : (PriTice v. Prince, 35 Beav. 386 ; Law Rep. 1 Eq. 490 ; 35 L. J. Ch. 290 ; 14 L. T. N. S. 43.) 207. Saving of existing proceedings for winding-up. — Where previously to the commencement of this act an order has been made for winding-up a Company under any acts or act hereby repealed, or a resolution has been passed for winding-up a Company voluntarily, (a) such Company shall be wound-up in the same manner and with the same inci- dents as if this act were not passed, and for the purposes of such winding-up such repealed acts or act shall be deemed to remain in full force. (a) A resolution has been passed for winding-up a Company voluntarily.'] — Prior to this act a limited Company, which was liable to be wound-up in the Bankruptcy Court, passed a resolution for winding-up voluntarily ; but after this act had come into operation a petition was presented for winding it up compulsorily ; and it was held that, under this section, the jurisdiction was in Bankruptcy, and not in Chancery : (Re West Silver Bank Mining Company, 82 Beav. 226 ; 9 Jur. N. S. 632, Ch.) But all jurisdiction to order the winding-up of a Company after the 2nd of November, 1862, is taken away from the Court of Bankruptcy by this section, notwithstanding the petition was presented before that date : (Re Economic Omnibus Company, Ex parte Pope, 7 L. T. N. S. 399, Bank.) The 105th section of the 19 & 20 Vict. c. 47, empowers the court to make the usual order for winding-up an unlimited Conipany, registered under the act of 1856, and which is being wound-up voluntarily, at the instance of a contributory as well as of a creditor. The petition need not be entitled in the name of this act : (Re Fire Annihilator Company, 9 Jur. N. S. 633, Ch. ; 8 L. T. N. S. 412.) 208. Saving of convei/aiice deeds. — Where previously to the commencement of this act any conveyance, mortgage, or Repeal of Acts and Tem/porary Provisions. 281 other deed has been made in pursuance of any act hereby repealedj such deed shall be of the same force as if this act had not passed, and for the purposes of such deed such repealed act shall be deemed to remain in full force. 209. Compulsory registration of certain Companies. — Every insurance Company (a) completely registered under the act passed in the eighth year of the reign of Her present Majesty, chapter one hundred and ten, intituled An Act for the Registration, Incorporation, and Regulation of Jovnt- Stoch Companies, shall on or before the second day of November one thousand eight hundred and sixty-two, and every other Company (b) required by any act hereby repealed to register under the said " Joint-Stock Companies Acts," or one of such acts, and which has not so registered, shall, on or before the expiration of the thirty-first day from the commencement of this act, register itself as a Company under this act,(c) in manner and subject to the regulations hereinbefore contained, with this exception, that no Com- pany completely registered under the said act of the eighth year of the reign of Her present Majesty shall be required to deliver to the registrar a copy of its deed of settlement ; and for the purpose of enabling such insurance Companies as are mentioned in this section to register under this act, this act shall be deemed to come into operation immediately on the passiag thereof; nevertheless the registration of such Companies shall not have any effect until the time of the commencement of this act. No fees shall be charged in respect of the registration of any Company required to register by this section. (a) Every insurance Company, S^c.'] — See London Monetary, Sfc. Com- pany V. Smith, 3 H. &N. 543 ; 27 L. J. Ex. 479. As to the course of proceeding by Companies registering, see sect. 183, supra. (6) And every other Company, Sfc.'] — A Company does not come within the provisions of this section unless it was required by the earlier Joint-Stock Companies Acts (as to which see sect. 175, supra) to be registered. A Company, formed in 1825, carried on business until the passing of the 7 & 8 Vict. c. 110, when it was formally registered under the 85th section of that act, but was never registered under this act or otherwise. The Company filed a bill for an injunction to restrain the pollution of a stream, but were met by the objection that for want of complete re- gistration they could not sue in their corporate capacity. Tliis was admitted, and the Company asked and obtained leave to amend, which they did by making ten members parties suing on behalf of themselves and the others, exceeding fifty in all. The amended bill was demurred 282 The Oompames Act, 1862. to for want of equity, on the ground that inasmuch as the Company was not completely registered, it was Ulegal under this and the following sections, and could not sue either in its corporate capacity or as a trading partnership. It was held that, except for the short period during which the act of 1856 was in force, the Company, by its members, had not been, and was not now, disabled from suing, and the demurrer was overruled : {Womersley v. Merritt, Law Rep. 4 Eq. 695 ; 17 L. T. N. S. 43, Ch.) (c) Register itself as a Company under this act, ^c] — ^As to the con- sequences of omitting so to register, see the next section. 210. Penalty on Company not registering — 21 Vict. c. 14>, s. 28. — If any Company required by the last section to register under this act makes default in complying witli tlie provisions thereof, then, from and after the day upon which such Company is required to register under this act, untn the day on which such Cotupany is registered under this act (which it is empowered to do at any time), the following consequences shall ensue ; (that is to say,) (1.) The Company shall be incapable of suing (a) either at law or in equity, but shall not be incapable of being made a defendant to a suit either at law or in equity : (2.) No dividend shaU be payable to any shareholder in such Company : (3.) Bach director or manager of the Company shall for each day during which the Company so being in default carries on business incur a penalty not ex- ceeding five pounds, and such penalty may be re- covered by any person, whether a shareholder or not in the Company, and be applied by him to his own use : Nevertheless, such default shall not render the Company so being in default illegal, nor subject it to any penalty or disability, other than as specified in this section; and registration under this act shall cancel any penalty or forfeiture, and put an end to any disability which any Company may have incurred under any act hereby repealed by reason of its not having registered under the said Joint- Stock Companies Acts, 1856, 1857, or one of them. (a) The Company shall he incapable of suing, ^.] — A Company originally constituted under the 7 & 8 Vict. c. 110, neglected to register, as dii-ected by the last section. On a petition for winding-up being presented by the Company and the chairman jointly, it was held that -petiti< that no order could therefore be made upon the petition : (Be Waterloo Repeal of Acts and Temporary Provisions. 283 Life, &-C., Assurance Company, 31 Beav. 586; 82 L. J. Ch. 370; 9 Jur. N. S. Ch. 291.) See, also, Womersley v. Merritt, Law Rep. 4 Eq. 695 ; 17 L. T. N. S. 43. 211. Tem/porary power for Oompanies to change registered office. — ^TJpon tlie application of the directors of any Com- pany registered under the Joint- Stock Companies Acts as hereinbefore defined, or any of them, made within one year after the date of the commencement of this act, sanctioned by a resolution passed at an extraordinary general meeting, but subject to the restrictions hereinafter mentioned, the Board of Trade shall have authority by their certificate in writing to change the registered office of any such Company from any one part of the United Kingdom of Great Britain and Ireland to any other part thereof, and the Eegistrar of Joint-Stock Companies with whom the Memorandum of Registration of such Company has been registered shall, upon receipt of such certificate, note in writing upon the margin or at the foot of the said memorandum the name of the place to which such registered office is to be trans- ferred, and the day upon which such transfer is pursuant to such certificate to take place, and shall attach the certifi- cate to the memorandum ; and the said registrar shall there- upon transmit to the Eegistrar of Joint-Stock Companies for that part of the United Kingdom to which the regis- tered office is to be so transferred copies of the said cer- tificate and of the said Memorandum of Registration so noted certified by him ; and the said registrar for the said last-mentioned part of the United Kingdom shall, upon receipt of such copies of certificate and memorandum, re- tain and register the same in like manner, and on payment of the like fees to him as provided in the case of the regis- tration of an original Memorandum of Registration, and thereupon the place of the registered office shall, from the said lastTmentioned registration and the said day mentioned in the said certificate, be the place mentioned as such on the said certificate : Provided, however, that such change shall in nowise alter or affect anything theretofore done by the said Company, or any of their rights or liabilities in respect thereof. 212. Restrictions on issue of certificate. — The Board of Trade shall not issue their certificate in pursuance of the foregoing section until they are satisfied that an advertise- ment of the intention of the Company to apply to the Board of Trade for a certificate, with -a declaration that all parties 284 The Oompmies Act, 1862. objecting thereto are forthwitli to apply to the Board of Trade, has been published once at the least in each of four successive weeks in the newspapers following; that is to say, in some newspaper circulating in the district where the registered office of the Company is situate, and also if the Company is registered in England in the London Gazette, if in Ireland in the DuhUn Gazette, if in Scotland in the Edinhurgh Gazette, nor until the said board are satisfied that the objections, if any, that may be urged against the issue of such certificate are groundless. FIRST SCHEDULE. TABLE A. Kegulations for Management of a Compant limited by Shakes, (a) Shares.(b) (1.) If several ptrsons axe registered as joint holders of any share, any one of such persons may give effectual receipts for any dividend payable in respect of such share. (2.) Every member shall, on payment of one shilling, or such less sum as the Company in general meeting may prescribe, be entitled to a certificate, (c) under the common seal of the Company, specifying the share or shares held by him, and the amount paid up thereon. (3.) If such certificate is worn out or lost, it may be renewed, on pay- ment of one shilling, or such less sum as tie Company in general meeting may prescribe. Calls on Shares.((r) (4.) The directors may from time to time make such calls upon the members in respect of all moneys unpaid on their shaxes as they (a) These regulations apply to Corapauies formed under this aot and limited by enares, if they have no Articles of Association, or where they have, unless they are excluded, or modified by their articles. See sect. 15, supra. By sect. 196, ti^i'Q, however, they do not apply to Companies merely registered under the act unless they are specially adopted. Sie sect 176, supra, as to their application to Companies registered under the Joint-Stock Companies Acts. This table corresponds to TiAle B. in "The Companies Act, 1866," and is similar to it in most respects. Sect. 60, supra, enables any Company, to which these regulations apply, to alter them by special resolution. EAs regards shares, see p. 52, et seg., ante. See sect. 81, supra. With regard to the making and recovery of calls, see p. 141, ante. Regulations for Management of a OompoMy, 8fc. 285 think fit, provided that twenty-one days' notice(a) at least is given of each call, and each member shall be liable to pay the amount of calls so made to the persons, and at the times and places appointed by the directors. (5.) A call shall be deemed to have been made at the time when the resolution of the directors authorising such call was passed. (6.) If the call payable in respect of any share is not paid before or on the day appointed for payment thereof, the holder for the time being of such share shall be liable to pay interest(6) for the same at the rate of five pounds per cent, per annum from the day appointed for the payment thereof to the time of the actual payment. (7.) The directors may, if they think fit, receive from any member willing to advance the same all or any part of the moneys due upon the shares held by him beyond the sums actually called for ; and upon the moneys so paid in advance, or so much thereof as from time to time exceeds the amount of the calls then made upon the shares in respect of which such advance has been made, the Company may pay interest at such rate as the member paying such sum in advance and the directors agree upon. Transfers of Shares.fc) (8.) The instrument of transfer of any share in the Company shall be executed both by the transferor and transferee, and the trans- feror shall be deemed to remain a holder of such share until the name of the transferee is entered in the register book in respect thereof. (9.) Shares in the Company shall be transferred in the following form : — ^I A.B. of in consideration of the sum of pounds paid to me by CD. of do hereby transfer to the ssiid CD. the share [or shares] numbered standing in my name in the books of the Company, to hold unto -the said CD., his executors, administrators, and assigns, subject to the several conditions on which I held the same at the time of the execution hereof ; and I the said CD. do hereby agree to take the said share [or shares] subject to the same conditions. As witness our hands, the day of (10.) The Company may decline((r) to register any transfer of shares made by a member who is indebted to them. (11.) The transfer books shall be closed during the fourteen days immediately preceding the ordinary general meeting in each year. Transmission of Shares. (e) (12.) The executors or administrators of a deceased member shall be the only persons recognised by the Company as having any title to his share. (13.) Any person becoming entitled to a share in consequence of the death, bankruptcy, or insolvency of any member, or in conse- (o) With regard to notices, see clauses 95 — 97, infra. (6) See Re Blaleely Ordnance Company, Stockm's case (Law Eep. 5 Eq. 6), p. 24, ante. (c) With regard to the transfer of shares, see p. 55, ante. (d) Aato a, Company's right to decline to register a trausftr, see p 101, ank. (e) See sect, ii, su/prci. 286 TU Om^cmies Act, 1862. quence of the marriage of any female member, may be registered as a member upon such evidence being produced as may from time to time be required by the Company. (14.) Any person who has become entitled to a share in consequence of the death, bankruptcy, or insolvency of any member, or in con- sequence of the marriage of any female member, may, instead of being registered himself, elect to have some person to be named by him registered as a transferee of such share. (15.) The person so becoming entitled shall testify such election by executing to his nominee an instrument of transfer of such share. (16.) The instrument of transfer shall be presented to the Company, accompanied with such evidence as the directors may require to prove the title of the transferor, and thereupon the Company shall register the transferee as a member. Forfeiture of Sliares.ia) (17.) If any member fails to pay any caU on the day appointed for payment thereof, the directors may at any time thereafter during such time as the call remains unpaid, serve a notice on him, requiring him to pay such call, together with interest and any expenses that may have accrued by reason of such nonpayment. (18.) The notice shall name a further day on or before which such caU, and all interest and expenses that have accrued by reason of such nonpayment, are to be paid. It shall also name the place where payment is to be made (the place so named being either the registered office of the Company or some other place at which calls of the Company are usually made payable). The notice shall also state that in the event of nonpayment at or before the time and at the place appointed the shares in respect of which such call was made will be liable to be forfeited. (19.) If the requisitions of any such notice as aforesaid are not com- plied with, any share in respect of which such notice has been given may at any time thereafter, before payment of aU calls, interest, and expenses due in respect thereof has been made, be forfeited, by a resolution of the directors to that effect. (20.) Any share so forfeited shall be deemed to be the property of the Company, and may be disposed of in such manner as the Company in general meeting thinks fit. (21.) Any member whose shares have been forfeited shall notwithstand- ing be liable to pay to the Company all calls owing upon such shares at the time of the forfeiture. (22.) A statutory declaration in TVTiting, that the call in respect of a share was made and notice thereof given, and that default in payment of the call was made, and that the forfeiture of the share was made by a resolution of the directors to that effect, shall be sufficient evideiioo of the facts therein stated, as against all persons entitled to such share, and such declaration and the receipt of the Company for the price of such share, shall con- stitute a good title to such shai-e, and a certificate of proprietor- ship sliall be delivered to a purchaser, and thereupon he shall be doomed the holder of such • share discharged from all calls due prior to such purchase, and he shall not be bound to see to (u) With regaFd to the forfeiture of shares, see p.- 23, antt. Begulation^ for Management of a Company, Sj'C. 287 the application c& the purchase-money, nor shall his title to such share be affected by any irregularity in the proceedings in reference to such sale. Conversion of Shares into Stock.(fl) (23.) The directors may, with the sanction of the Company previously given in general meeting, convert any paid-up shares into stock. (24.) When any shares have been converted into stock, the several holders of such stock may thenceforth transfer their respective interests therein, or any part of such interest, in the same manner and subject to the same regulations as and subject to which any shares in the capital of the Company may be transferred, or as near thereto as circumstances admit. (25.) The several holders of stock shall be entitled to participate in the dividends and profits of the Company according to the amount of their respective interests in such stock ; and such interests shall, in proportion to the amount thereof, confer on the holders thereof respectively the same privileges and advantages for the purpose of voting at meetings of the Company, and for other purposes, as would have been conferred by shares of equal amount in the capital of the Company ; but so that none of such privileges or advantages, except the participation in the dividends and profits of the Com- pany, shall be conferred by any such aliquot part of consolidated stock as would not, if existing in shares, have conferred such privileges or advantages. Increase in Capital.(b') (26.) The directors may, with the sanction of a special resolution of the Company previously given in general meeting, increase its capital by the issue of new shares(c) such aggregate increase to be of such amount, and to be divided into shares of such respective amounts, as the Company in general meeting directs, or, if no direction is given, as the directors think expedient. (27.) Subject to any direction to the contrary that may be given by the meeting that sanctions the increase of capital, all new shares shall be offered to the members in proportion to the existing shares held by them, and such offer shall be made by notice specifying the number of shares to which the member is entitled, and limiting a time within which the offer, if not accepted, will be deemed to be declined, and after the expiration of such time, or on the receipt of an intimation from the member to whom such notice is given that he declines to accept the shares offered, the directors may dispose of the same in such manner as they think most beneficial to the Company. (28.) Any capital raised by the creation of new shares shall be considered as part of the original capital, and shall be subject to the same provisions with reference to the payment of calls, and the forfei- ture of shares on nonpayment of calls, or otherwise, as if it had been part of the original capital. (a) As to the conversion of shares into stqpk, see sects. 28 and 29, supra. (6) Sect. 12, supra, gives a Company power to increase its capital. (c) As to Oompanies illegally issuing shares, see Jie New Zealand Banking Corporation (Law Bep. 3 Oh. App. 131), and Se Finance Corporation, Ex parte Feilimg, Holmes, and others (Law Bep. 2 Oh. App. 714), ante. 288 The Companies Act, 1862. General Meetings. (29.) The first general meeting shall be held at such time, not being more than six months(a) after the registration of the Company and at such place, as the directors may determine. (30.) Subsequent general meetings shall be held at such time and place as may be prescribed by the Company in general meeting ; and if no other time or place is prescribed, a general meeting shall be held on the first Monday in February in every year, at such place as may be determined by the directors. (31.) The above-mentioned general meetings shall be called ordinary meetings ; aU other general meetings shall be called extraordinary. (32.) The directors may, whenever they think fit, and they shall upon a requisition made in writing by not less than one-fifth in number of the members of the Company, convene an extraordinary general meeting. (33.) Any requisition made by the members shall express the object of the meeting proposed to be called, and shall be left at the regis- tered office of the Company. (34.) Upon the receipt of such requisition the directors shall forthwith proceed to convene an extraordinary general meeting. If they do not proceed to convene the same within twenty-one days from the date of the requisition, the requisitionists, or any other members amounting to the required number, may themselves convene an extraordinary general meeting. Proceedings at General Meetings.Qi) (35.) Seven days' notice(c) at the least, specifying the place, the day, and the hour of meeting, and in case of special business the general natiu'e of such business, shall be given to the members in manner hereinafter mentioned, or in such other manner, it any, as may be prescribed by the Company in general meeting ; but the nonreceipt of such notice by any member shall not invalidate the proceedings at any general meeting. (36.) All business shall be deemed special that is transacted at an extraordinary meeting, and all that is transacted at an ordinary meeting, with the exception of sanctioning a dividend and the consideration of the accounts, balance sheets, and the ordinary report of the directors. (37.) No business shall be transacted at any general meeting, except the declaration of a dividend, unless a quorum of members is present at the time when the meeting proceeds to business ; and such quorum shall be ascertained as follows ; that is to say, if the persons who have taken shares in the Company at the time of the meeting do not exceed ten in number, the quorum shall be five ; if they exceed ten there shall be added to the above (o) By "The Oompanlea Act, 1867," s. 39 (jsosO. every Compaoy muet now hold a general meeting within four months after registration. (b) By sect 67, supra, minutes of the proceedings at general meetings are to be duly kept. (c) A shareholdei- who attends and votes at a meeting, cannot afterwards, it seems, object to an irregularity in the notice. The transaction of other business, foreign to the objects specified in the notice, will not make the whole meeting irregular: (Re Britiah Sugar Refining Comptmu, £x parte Faris, 3 Kay & J. 408: 26 L. J. Oh. 869.) Regulations for Management of a Company, 8fc. 289 quorum one for every five additional members up to fifty, and one for every ten additional members after fifty, with this limita- tion, that no quorum shall in any case exceed twenty. (38.) If within one hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the re- quisition of members, shall be dissolved: in any other case it shall stand adjourned to the same day in the next week, at the saine time and place ; and if at such adjourned meeting a quorum is not present it shall be adjourned sine die. (39.) The chairman (if any) of the board of directors shall preside as chairman at every general meeting of the Company. (40.) If there is no such chairman, or if at any meeting he is not present within fifteen minutes after the time appointed for holding the meeting, the members present shall choose some one of their number to be chairman. (41.) The chairman may, with the consent of the meeting, adjourn any meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left unfinished at the meeting from which the adjournment took place. (42.) At any general meeting, unless a poll is demanded by at least five members, a declaration by the chairman that a resolution has been carried, and an entry to that effect in the book of pro- ceedings of the Company, shall be sufficient evidence of the fact without proof of the number or proportion of the votes recorded in favour of or against such resolution. (43.) If a poU is demanded by five or more members it shall be taken in such manner as the chairman directs, and the result of such poU shall be deemed to be the resolution of the Company in general meeting. In the case of an equality of votes at any general meeting, the chairman shall be entitled to a second or casting vote. Votes of Members.(aj (44.) Every member shall have one vote for eveiy share up to ten : he shall harve an additional vote for every five shares beyond the first ten shares up to one hundred, and an additional vote for every ten shares beyond the first hundred shares. (45.) If any member is a lunatic or idiot he may vote by his committee, curator honis, or other legal curator. (46.) If one or more persons are jointly entitled to a share or shares, the member whose name stands first in the register of members as one of the holders of such share or shares, and no other, shall be entitled to vote in respect of the same. (47.) No member shall be entitled to vote at any general meeting unless all calls due from him have been paid, and no member shall be entitled to vote in respect of any share that he has acquired by transfer at any meeting held after the expiration of three months from the registration of the Company, unless he has been possessed of the share in respect of wMch he claims to vote for at least three months previously to the time of holding the meeting at which he proposes to vote. (a) See sects. 51 and 52, suirra, aud East Pant Du United Lead Uining Company v. Merryweather (2 H. & M. 254), p. 131, ante. U 290 The Companies Act, 1862. (48.) Votes may be given either personally or by proxy. (49.) The instrument appointing a proxy shall be in writing, under the hand of the appointor, or if such appointor is a corporation, under their common seal, and shall be attested by one or more witness or witnesses : no person shall be appointed a proxy who is not a member of the Company. (50.) The instrument appointing a proxy shall be deposited at the regis- tered office of the Company not less than seventy-two hours before the time for holding the meeting at which the person named in such instrument proposes to vote, but no instrument appointing a proxy shall be valid after the expiration of twelve months from the date of its execution. (51.) Any instrument appointing a proxy shall be in the following form : — Company Limited. I of in the county of being a member of the Company Limited, and entitled to vote or votes, hereby appoint of as my proxy, to vote for me and on my behalf at the [ordinary or extra- ordinary, as the case may Se] general meeting of the Company to be held on the day of , and at any adjoximment thereof [or, at any meeting of the Company that may be held in the year ]. As witness my hand, this day of Signed by the said in the presence of Directors. (52.) The number of the directors, and the names of the first directors, shall be determined by the subscribers of the Memorandum of Association. (53.) Until directors are appointed the subscribers of the Memorandum of Association shall be deemed to be directors, (a) (54.) The future remuneration of the directors, and their remuneration for services performed previously to the first general meeting, shall be determined by the Company in general meeting. Poivers of Directors.^b) (55.) The business of the Company shall be managed by the directors, who may pay all expenses incurred in getting up and registering the Company, and may exercise all sudi powers of the Company. as are not by the foregoing act, or by these articles, required to be exercised by the Company in general meeting, subject nevertheless to any regulations of these articles, to the provisions of the foregoing act, and to such regulations, being not incon- sistent with the aforesaid regulations or provisions, as may be prescribed by the Company in general meeting ; but no regulation made by the Company in general meeting shall invalidate any prior act of the directore which would have been valid if such regulation had not been made. (o) The powers of such du-eotora during their period of office are in all respects the same iw those of directoi-a appointed at a genaral meeting : (Eales v. Cimler- liiiid Black Laid Minimi Company (Limited), 6 H. cSt N. 481 ; 30 L. J. Ex. 141.) (b) With rogaril to directors generally, see p. 16, et seq. With regard to directors :vK agents, see p. 36, atUe ; as trustees, see p. 40, ante. Regulations for Management of a Company, ^-c. 291 (56.) The continuing directors may act notwithstanding any vacancy in their body. Disqualification of Directors. (57.) The office of director shall be vacated, — If he holds any other oifice(a) or place of profit under the Company ; If he becomes bankrupt or insolvent ; If he is concerned in or participates in the profits of any contract with the Company. But the above rules shall be subject to the following exceptions : That no director shall vacate his office by reason of his being a member of any Company which has entered into contracts with or done any work for the Company of which he is director ; never- theless he shall not vote in respect of such contract or work ; and if he does so vote his vote shall not be counted. Rotation of Directors. (58.) At the first ordinary meeting after the registration of the Com- pany the whole of the directors shall retire from office ; and at the first ordiuary meeting in every subsequent year one-third of the directors for the time bfeing, or if their number is not a multiple of three, then the number nearest to one-third shall retire from office. (59.) The one-third or other nearest number to retire during the first and second years ensuing the first ordinary meeting of the Company shall, unless the directors agxee among themselves, be determined by ballot : in every subsequent year the one-third or other nearest number who have been longest in office shall retire. (60.) A retiring director shall be re-ehgible. (61.) The Company at the general meeting at which any directors retire in manner aforesaid shall fill up the vacated offices by electing a Kke number of persons. (62.) If at any meeting at which an election of directors ought to take place the places of the vacating directors are not filled up, the meeting shall stand adjourned {Ul the same day in the next week, at the same time and place ; and if at such adjourned meeting the places of the vacating directors are not filled up, the vacating directors, or such of them as have not had their places filled up, shall continue in office until the ordinary meeting in the next year, and so on from time to time until their places are filled up. (63.) The Company may from time to time, in general meeting, increase or reduce the number of directors, and may also determine in what rotation such increased or reduced number is to go out of office. (64.) Any casual vacancy occurring in the board of directors may be filled up by the directors, but any person so chosen shall retain his office so long only as the vacating director would have retained the same if no vacancy had occurred. (a) The appointment by the directors of one of their own members to a salaried office under the Company seems valid under the statute, and not void or illegal at common law : (Eaks V. Ciimberlmd, ^c. CoTnpany, 6 H. & N. 481 ; 30 L. J. Ex. 141.) On this subject, see The Iron Ship Coating Company v. Blunt (Law Rep. 3 C. P. 484), ante, ' TT 9. 292 The Gompcmies Act, 1862. (65.) The Company, in general meeting, may, by a special resolution, remove any director before the expiration of his period of office, and may by an ordinary resolution appoint another person in his stead : the person so appointed shall hold office during such time only as the director in whose place he is appointed would have held the same if he had not been removed. Proceedings of Directors.(a) (66.) The directors may meet together for the despatch of business, adjourn, and otherwise regulate their meetings as they think fit, and determine the quorum (6) necessary for the transaction of business. Questions arising at any meeting shall be decided by a majority of votes. In case of an equality of votes the chair- man shall have a second or casting vote. A director may at any time summon a meeting of the directors. C67.) The directors may elect a chairman of their meetings, and deter- •mine the period for which he is to hold office ; but it no such chairman is elected, or if at any meeting the chairman is not present at the time appointed for holding the same, the directors present shall choose some one of their number to be chairman of such meeting. (68.) The directors may delegate any of their powers to committees con- sisting of such member or members of their body as they think fit. Any committee so formed shall, in the exercise of the powers so delegated, conform to any regulations that may be imposed on them by the directors. (69.) A committee may elect a chairman of their meetings. If no such chairman is elected, or if he is not present at the time appointed for holding the same, the members present shall choose one of their niraiber to be chairman of such meeting. (70.) A committee may meet and adjourn as they think proper. Ques- tions arising at any meeting shall be determined by a majority of votes of the members present ; and in case of an equality of votes the chairman shall have a second or casting vote. (71.) All acts done by any meeting of the directors, or of a committee of directors, or by any person acting as a director, shall, notwith- standing that it be afterwards discovered that there was some defect in the appointment of any such directors or persons acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a dii-ector. Diri(lends.(c} (72.) The directors may, with the sanction of the Company in general meeting, declare a dividend to be paid to the members in propor- tion to their shnros. (73.) No dividend shall bo payable except out of the profits arising from the business of the Company. (a) See p. 137, mile, ns to diveotois keeping minutes of their proceedings. (!)) With regard to the number of directors necessary to form a quorum, see p. IC, aiili: (r) TIkm-h is no provision in the body of the act with reference to the payment of dividends, nnlesa iu tlie ciise of a wmding-up, which is provided for by sect. 38, ol. 7, and sect 101, siijira. Regulations for Management of a Oompamj, Sfc. 293 (7i.) The directors may, before recommending any dividend, set aside out of tlie profits of the Company such sum as they think proper as a reserved fund to meet contingencies, or for equalising divi- dends, or for repairing or maintaining the works connected with the business of the Company, or any part thereof ; and the directors may invest the sum so set apart as a reserved fund upon such securities as they may select. (75.) The directors may deduct from the dividends payable to any member aJl such sums of money as may be due from him to the . Company on account of calls or otherwise. (76.) Notice of any dividend that may have been declared shall be . given to each member in manner hereinafter mentioned ; and all dividends unclaimed for three years, after having been declared, may be forfeited by the directors for the benefit of the Company. (77.) No dividend shall bear interest as against the Company. Accounts. (78.) The directors shall cause true accounts to be kept — Of the stock in trade of the Company ; Of the snms of money received and expended by the Company ; and the matter in respect of which such receipt and expenditure takes place ; and Of the credits and HabUities of the Company : The books of account shall be kept at the registered office of the Company, and subject to any reasonable restrictions as to the time and manner of inspectiug the same that may be imposed by the committee in general meeting, shall be open to the inspection of the members during the hours of business. (79.) Once at the least in every year the directors shall lay before the Company in general meeting a statement of the income and expenditure for the past year, made up to a date not more than three months before such meeting. (80.) The statement so iuade shall show, arranged under the most con- venient heads, the amoimt of gross income, distinguishing the several sources from which it has been derived, and the amount of gross expenditure, distinguishing the expense of the establish- ment, salaries, and other like matters. Every item of expendi- ture fairly chargeable against the year's income shall be brought into account, so that a just balance of profit and loss may be laid before the meeting ; and in cases where any item of expenditure which may in fairness be distributed over several years has been incurred in any one year the whole amount of such item shall be stated, with the addition of the reasons why only a portion of such expenditure is charged against the income of the year. (81.) A balance-sheet(fl;) shall be made out in every year, and laid before the Company in general meeting, and such balance-sheet shall contain a summary of the property and liabilities of the Company arranged under the heads appearing in the form annexed to this table, or as near thereto as circumstances admit. (82.) A printed copy of such balance sheet shall, seven days previously to such meeting, be served on every member in the manner in which notices are hereinafter directed to be served. (o) A form of balance-sheet is given at the end of this table. 294 The Oompanies Act, 1862. Aiidit. (83.) Once at the least in every year the accounts of the Company shall be examined, and the correctness of the balance sheet ascertained, by one or more auditor or auditors. (84.) The first auditors shall be appointed by the directors : subsequent auditors shall be appointed by the Company in general meeting. (86.) If one auditor only is appointed, all the provisions herein contained relating to auditors shall apply to him. (86.) The auditors may be members of the Company ; but no person is eligible as an auditor who is interested otherwise than as a member in any transaction of the Company ; and no director or other officer of the Company is eligible during his continuance in office. (87.) The election of auditors shall be made by the Company at their ordinary meeting in each year. (88.) The remuneration of the first auditors shall be fixed by the directors ; that of subsequent auditors shall be fixed by the Company in general meeting. (89.) Any auditor shaU be re-eligible on his quitting office. (90.) If any casual vacancy occurs in the office of any auditor appointed by the Company, the directors shall forthwith call an extra- ordinary general meeting for the purpose of supplying the same. (91.) If no election of auditors is made in manner aforesaid the Board of Trade may, on the application of not less than five members of the Company, appoint an auditor for the current year, and fix the remuneration to be paid to him by the Company for his services. (92.) Every auditor shall be supplied with a copy of the balance sheet, and it shall be his duty to examine the same, with the accounts and vouchers relating thereto. (93.) Every auditor shall have a list delivered to biin of all books kept by the Company, and shall at all reasonable times have access to the books and accounts of the Company : he may, at the expense of the Company, employ accountants or other persons to assist him in investigating such accounts, and he may in relation to such accounts examine the directors or any other officer of the Company. (94.) The auditors shall make a report to the members upon the balance sheet and accounts, and in every such report they shall state whether, in their opinion, the balance sheet is a full and fair balance sheet, containing the particulars required by these regu- lations, and properly drawn up so as to exhibit a true and correct view of the state of the Company's affairs, and, in case they have called for explanations or information from the directors, whether such expliinations or information have been given by the directors, and whether they haw been satisfactory ; and such report shall be read, together with the report of the directors, at the ordinary meeling. (95.) A notice may be served by the Company upon any member either (n) Tlio tlivoe (ollowiug clauses provide for the service of notices as between a Oompauy ami its merabera. The service of notices on Companies, and the Mitlimitioalioii of the notices of Companies is provided for by sects. 62 — 64 of the aot. Regulations for Management of a Company, Sj-c. 295 personally, or by sending it through the post in a prepaid letter addressed to such member at his registered place of abode. (96.) All notices directed to be given to the members shall, with respect to any share to which persons are jointly entitled, be given to whichever of such persons is named first in the register of members ; and notice so given shaU be sufficient notice to all the holders of such share. (97.) Any notice, if served by post, shall be deemed to have been served at the tune when the letter containing the same would be delivered in the ordinary course of the post ; and in proving such service it shall be sufficient to prove that the letter containing the notices was properly addressed and put into the post office. 296 The Oompcmies Act, 1862. 03 m m t\ ^ lz| H o * <° S5*g GO ^ " 'S ° .§ g = i i * »' S .9 S 00.2 p 2 o o S tiD.d d P Z a o g S '^ ■" - .fc a i£S| U-, P III So - DO .= .«*« O &"§ . ® S a p^s >a7§ g ?Q 5 - JS3 °3 J fi« tip ^ a CD >U] .a § p Coo CO EH ^ H tn.'U O.S*. ^ * >. a 2 » .E^ P p A» O 3 a bo !.S rH (N CO §3 SB M Table of Fees to be paid to the Registrar, Sfc. 297 TABLE B. Table of Fees to be paid to the Registrar of Joint-Stock Companies BY A Company having a Capital divided into Shares. £ s. d. For registration of a Company whose nominal capital does not exceed 2000?., a fee of 2 For registration of a Company whose nominal capital exceeds 20002., the above fee of 21., with the following additional fees, regulated according to the amount of nominal capital ; (that is to say,) £ s. d. For every lOOOZ. of nominal capital, or part of lOOOZ., after the first 2000Z., up to 5000Z. ... 10 For every lOOOZ. of nominal capital, or part of 10002. after the first 5000/., up to 100,0002. 5 For every 10002. of nominal capital, or part of 10002. after the first 100,0002 1 For registration of any increase of capital made after the first registration of the Company, the same fees per 10002., or part of 10002., as would have been payable if such in- creased capital had formed part of the original capital at the time of registration. Provided that no Company shall be liable to pay in respect of nominal capital, on registration or afterwarci, any greater amount of fees than 502., taking into account in the case of fees payable on an increase of capital after registration the fees paid on registration. For registration of any existing Company, except such Com- panies as are by this act exempted from payment of fees in respect of registration under this act, the same fee as is charged for registering a new Company. For registering any document hereby required or authorised to be registered, other than the Memorandum of Association 5 For making a record of any fact hereby authorised or required to be recorded by the Registrar of Companies, a fee of ... 5 TABLE C. Table of Fees to be paid to the Kegistrak of Joint-Stock Companies BY A Company not having a Capital divided into Shares. £ s. d. For registration of a Company whose number of members, as stated in the Articles of Association, does not exceed 20 ... 2 For registration of a Company whose number of members, as stated in the Articles of Association, exceeds 20, but does not exceed 100 5 For registration of a Company whose number of members, as stated in the Articles of Association, exceeds 100, but is not stated to be unlimited, the above fee of 62., with an addi- 298 The Oompmies Act, 1862. tional 5s. for every 50 members or less number than 50 members after the first 100. For registration of a Company in which the number of mem- bers is stated in the Articles of Association to be unlimited, a fee of 20 For registration of any increase on the number of members made after the registration of the Company in respect of every 50 members, or less than 50 members, of such increase 5 Provided that no one Company shall be liable to pay on the whole a greater fee than 201. in respect of its number of members, taking into account the fee paid on the first regis- tration of the Company. For registration of any existing Company, except such Com- panies as are by this act exempted from payment of fees in respect of registration under this act, the same fee as is charged for registering a new Company. For registering any document hereby required or authorised to be registered, other than the Memorandum of Association 6 For making a record of any fact hereby authorised or required to be recorded by the Registrar of Companies, a fee of ... 5 FORM D. Form of Statesient referred to in Part JU. of the Act. (a) The capital of the Company is , divided into shares of each. The number of shares issued is Calls to the amount of pounds per share have been made, under which the sum of pounds has been received. The liabilities of the Company on the first day of January (or July) were, — Debts owing to sundry persons by the Company : On judgment, £ On specialty, £ On notes or bills, £ On simple contracts, £ On estimated liabilities, £ The assets of the Company on that day were, — Government securities [stating them'], £ Bills of exchange and promissory notes, £ Cash at the bankere, £ Other securities, £ (a) If the Company has no capital divided into shares the portion of the state- ment relating to capital and shares must be omitted. Form B. — Memorandum and Articles, Sfc. 299 SECOND SCHEDULE. FORM A. Memorandum of Association of a Company limited by Shares. 1st. The name of the Company is "The Eastern Steam Packet Com- pany, Limited." 2nd. The registered office of the Company will be situate in England. 3rd. The objects for which the Company is established are, " the conveyance of passengers and goods in ships or boats between such places as the Company may from time to time determine, and the doing all such other things as axe incidental or conducive to the attainment of the above object." 4th. The liability of the members is limited. 5th. The capital of the Company is two hundred thousand pounds, divided into one thousand shares of two hundred pounds each. We the several persons whose names and addresses are subscribed, are desirous of being formed into a Company, in pursuance of this Memorandum of Association, and we respectively agree to take the number of shares in the capital of the Company set opposite our respective names. Names, Addresses, and Descriptions of Subscribers. Number of Shares taken by each Subscriber. 1. 2. 3. 4. 5. 6. 7. John Jones of John Smith of Thomas Green of John Thompson of Caleb White of Andrew Brown of Csesar White of in the county of merchant in the county of in the county of in the county of in the county of in the county of in the county of Total shares taken 200 25 30 40 16 6 10 325 Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 13, Hute-street, Clerkenwell, Middlesex. FORM B. Memorandum and Articles of Association of a Company limited by Gdaeantee and not having a Capital divided into Shares. Memorandum of Association. 1st. The name of the Company is " The Mutual London Marine Association, Limited." 300 The Companies Act, 1862. 2nd. The registered office of the Company will tie situate in England. 3rd. The objects for which the Company is established are, " the mutual insurance of ships belonging to members of the Company, and the doing all such other things as are incidental or conducive to the attainment of the above objects." 4th. Every member of the Company undertakes to contribute to the assets of the Company in the event of the same being wound-up during the time that he is a member, or within one year afterwards, for payment of the debts and liabilities of the Company contracted before the time at which he ceases to be a member, and the costs, charges, and expenses of winding-up the same, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required, not exceeding ten poimds. We, the several persons whose names aud addresses are subscribed, are desirous of being formed into a Company, in pursuance of this Memorandum of Association. Names, Addresses, and Descriptions of Subscribers. 1. John Jones of in the county of merchant. 2. John Smith of in the county of 3. Thomas Green of in the county of 4. John Thompson of in the county of 5. Caleb White of in the county of 6. Andrew Brown of in the county of 7. Cassar White of in the county of Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 13, Hute Street, ClerkenweU, Middlesex. Articles of Association to accompany preceding MEMOEAironM of Association. (1.) The Company, for the purpose of registration, is declared to consist of five hundred members. (2.) The directors hereinafter mentioned may, whenever the biisiness of the association requires it, register an increase of. members. Definition of Mcmht rs. (8.) Every person shall be deemed to have agreed to become a member of the Company who insures any ship or share in a ship in pur- suance of the regulations hereinafter contained. General ifeethu/f!. (4.) The first general meeting shall be held at such time, not being more than throe montlis after the incorporation of the Company, and at such place, as the directors may determine. (5.) Subsequent gonernl meetings shall be held at such time and place as may be prescribed by the Company in general meeting ; and it no other time or place is prescribed, a general meeting shall be held on the first INIonday in February in every year, at such place as may be detenuiued by the directors. (G.) The aboYe-iiH'utioned general meetings shall be called ordinary meeting's ; all other general meetings sliaU be called extraordinary. (7.) The directors may, whenever they think fit, and they shall, upon Form B. — Memorandum and Articles, 8fc. 301 a requisition made in writing by any five or more members, con- vene an extraordinary general meeting. (8.) Any requisition made by the members shall express the object of the meeting proposed to be called, and shall be left at the regis- tered office of the Company. (9.) Upon the receipt of snch requisition the directors shall forthwith proceed to convene a general meeting : if they do not proceed to convene the same within twenty-one days from the date of the requisition, the requisitiQnists, or any other five members, may themselves convene a meeting. Proceedings at General Meetings. (10.) Seven days' notice at the least, specifying the place, the day, and the hour of meeting, and in case of special business the general nature of such business, shall be given to the members in manner hereinafter mentioned, or in such other manner, if any, as may be prescribed by the Company in general meeting; but the nonreceipt of such notice by any member shall not invalidate the proceedings at any general meeting. (11.) All business shall be deemed special that is transacted at an extraordinary meeting, and all that is transacted at an ordinary meeting, with the exception of the consideration of the accounts, balance sheets, and the ordinary report of the directors. (12.) No business shall be transacted at any meeting, except the de- claration of a dividend, tmless a quorum of members is present at the commencement of such business, and such quorum shall be ascertained as follows ; that is to say, if the members of the Company at the time of the meeting do not exceed ten in number, the quorum shall be five ; if they exceed ten there shall be added to the above quorum one for every five additional members up to fifty, and one for every ten additional members after fifty, with this limitation, that no quorum shall in any case exceed thirty. (13.) If within one hour from the time appointed for the meeting a quorum of members is not present, the meeting, if convened upon the requisition of the members, shall be dissolved : in any other case it shall stand adjourned to the same day in the following week at the same time and place ; and if at such adjourned meeting a quorum of members is not present, it shall be adjoiu'ned sine die. (14.) The chairman (if any) of the directors shall preside as chairman at every general meeting of the Company. . (15.) If there is no such chairman, or if at any meeting he is not present at the time of holding the same, the members present shall choose some one of their number to be chairman of such meeting. (16.) The chairman may, with the consent of the meeting, adjourn any meeting from time to time and from place to place, but no business shall be transacted at any adjourned meeting other than the business left tmfinished at the meeting from which the adjournment took place. (17.) At any general meeting, unless a poll is demanded by at least five members, a declaration by the chairman that a resolution has been carried, and an entry to that effect in the book of proceedings of the Company, shall be sufficient evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution. 302 The Companies Act, 1862. (18.) If a poll is demanded in manner aforesaid, the same shall be taken in such manner as the chairman directs, and the result of such poll shall be deemed to be the resolution of the Company in general meeting. Votes of Members. (19.) Every member shall have one vote and no more. (20.) If any member is a lunatic or idiot he may vote by his committee, curator bonis, or other legal curator. (21.) No member shall be entitled to vote at any meeting unless all moneys due from him to the Company have been paid. (22.) Votes may be given either personally or by proxies : a proxy shall be appointed in writing \mder the hand of the appointor, or, if such appointor is a corporation, under its common seal. (23.) No person shall be appointed a proxy who is not a member, and the instrument appointing him shall be deposited at the registered oiflce of the Company not less than forty-eight hoxucs before the time of holding the meeting at which he proposes to vote. (24.) Any rastrument appointing a proxy shall be in the following form : — Company Limited. I of in the county of being a member of the Company Limited, hereby appoint of as my proxy, to vote for me and on my behalf at the [ordinary or extraordinary, as the case may bel general meeting of the Company to be held on the day of , and at any adjournment thereof to be held on the day of next [or at any meeting of the Company that may be held in the year ]. As witness my hand, this day of Signed by the said in the presence of Directors. (25.) The number of the directors, and the names of the first directors, shall be determined by the subscribers of the Memorandum of Association. (26.) Until directors are appointed, the subscribers of the Memorandum of Association shall for all the purposes of this act be deemed to be directors. Powers of Directors. (27.) The business of the Company shall be managed by the directors, who may exercise all such powers of the Company as are not hereby tequii-ed to be exercised by the Company in general meeting ; but no regulation made by the Company in general meeting shall invalidate any prior act of the directors which would have been valid if such regulation had not been made. Election of Directors. (28.) Tlie directors shall be elected annually by the Company in general meeting. Business of Company. [Hei'e insert Rules as to Mode in which Biunness of Insurance is to be condvctetl.'] Accomlts. (29.) The accounts of the Company shall be audited by a committee of five menibers, to be called the audit committee. Form B. — Memorandum and Articles, ^c. 303 (30.) The first audit committee shall be nominated by the directors out of the body of members. (31.) Subsequent audit oommittees shall be nominated by the members at the ordinary general meeting in each year. (32.) The audit committee shall be supplied with a copy of the balance sheet, and it shall be their duty to examine the same with the accounts and vouchers relating thereto. (33.) The audit committee shall have a list delivered to them of all books kept by the Company, and they shall at all reasonable times have access to the books and accounts of the Company; they may, at the expense of the Company, employ accountants or other persons to assist them in investigating such accounts, and they may in relation to such accounts examine the directors or any other officer of the Company. (34.) The audit committee shall make a report to the members upon the balance sheet and accounts, and in every such report they shall state whether in their opinion the balance sheet is a full and fan- balance sheet, containing the particulars required by these regu- lations of the Company, and properly drawn up, so as to exhibit a true and correct view of the state of the Company's affairs, and in case they have called for explanation or information from the directors, whether such explanations or information have been given by the directors, and whether they have been satisfactory, and such report shall be read together with the report of the directors at the ordinary meeting. Notices. (35.) A notice may be served by the Company upon any member either personally, or by sending it through the post in a prepaid letter addressed to such member at his registered place of abode. (36.) Any notice, if served by post, shall be deemed to have been served at the time when the letter containing the same would be delivered in the ordinary course of the post ; and in proving such service it shall be sufficient to prove that the letter contaioing the notice was properly addressed, and put into the post office. Winding-up. (37.) The Company shall be wound-up voluntarily whenever an extra- ordinary resolution, as defined by "The Companies Act, 1862," is passed, requiring the Company to be wound-up voluntarily. Names, Addresses, and Descriptions of Subscribers. 1. John Jones of in the county of merchant. 2. John Smith of in the county of 3. Thomas Green of in the county of 4. John Thompson of in the county of 5. Caleb White of in the county of 6. Andrew Brown of in the county of 7. Caesar White of in the county of Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 13, Hute-street, ClerkenweU, Middlesex. 304 The Oonvpames Ad, 1862. FORM C. Memorandum and Abticlf.s of Association of a Company limited BY Guarantee, and having a Capital divided into Shares. Memorandum of Afisociation. 1st. The name of tlie Company is " The Highland Hotel Company, Limited." 2nd. The registered office of the Company will be situate in Scotland. 3rd. The objects for which the Company is established are " the facilitating travelling in the Highlands of Scotland, by providing hotels and conveyances by sea and by land for the accommodation of travellei-s, and the doing all such other things as are incidental or conducive to the attainment of the above object." 4th. Every member of the Company imdertakes to contribute to the assets of the Company in the event of the same being wound-up diu'ing the time that he is a member, or within one year afterwards, for pay- ment of the debts and liabiUties of the Company contracted before the time at which he ceases to be a member, and the costs, charges, and expenses of winding-up the same, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required not exceeding twenty pounds. We, the several persons whose names and addresses are subscribed, are desirous of being formed into a Company, in pursuance of this Memorandum of Association. Names, Addresses, and Descriptions of Subscribers. 1. John Jones of in the county of merchant. 2. John Smith of in the county of 3. Thomas Green of in the county of 4. John Thompson of in the county of 5. Caleb White of in the county of 6. Andrew Brown of in the county of 7. Caesar White of in the county of Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 13, Hute-street, Clerkenwell, Middlesex. Articled! of Anxociaiion to accompaivi preceding Mriiwramlnm of Association. 1. The capital of the Company shall consist of five hundred thousand pounds, divided into live thousiind shares of one hundred pounds each. 2. The directors may, with the sanction of the Company in general meeting, reduce tlie iunount of shares. 3. The directors may, with tlio sanction of the Company in general meeting, cancel any shares belonging to the Company. Form D. — Memorandum and Articles, c^'c. 305 4. All the articles of Table A. shall be deemed to be incorporated with these articles, and to apply to the Company. We, the several persons whose names and addresses are subscribed, agree to take the number of shares in the capital of the Company set opposite our respective names. Names, AddresBee, and Descriptions of Subsoribers. Number of Shares takeu by eacli Subscriber. 1. 2. 3. 4. 5. 6. 7. John Jones of John Smith of Thomas Green of John Thompson of Caleb White of Andrew Brown of Csesar White of in the county of in the county of in the county of in the county of in the county of in the county of in the county of Total shares taken 200 25 30 40 15 5 10 325 Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 13, Hute-street, Clerkenwell, Middlesex. FORM D. Memouandum and Articles of Association op an Unlimited Companv, HAVING a Capital divided into Shares. Mniiorandiim of Association. 1st. The name of the Company is " The Pateut Stereotype Com- pany." 2nd. The registered office of the Company will be situate ia England. 3rd. The objects for which the Company is established are " the working of a patent method of founding and casting stereotype plates, of which method John Smith, of London, is the sole patentee." We, the several persons whose names are subscribed, are desirous of being formed into a Company, in pursuance of this Memorandum of Association. Names, Addresses, and Descriptions of Subscribers. in the county of in the county of in the county of in the county of in the county of in the county of in the county of Dated 22nd day of November, 1861. AVitness to the above signatures, A. B., No. 20, Bond-street, Middlesex. 1. John Jones of 2. John Smith of 3. Thomas Green of 4. John Thompson of 5. Caleb White of 6. Andrew Brown of 7. Abel Brown of merchant. 306 Ths Companies Act, 1862. Articles of Association to accompany the preceding Memorandum of Association. Capital of the Company. The capital of the Company is two thovisand pounds, divided into twenty shares of one hundred pounds each. Application of Table A. All the articles of Table A. shall be deemed to be incorporated with these articles, and to apply to the Company. We, the several persons whose names and addresses are subscribed, agree to take the number of shares in the capital of the Company set opposite our respective names. Names, Addresses, and Descriptions of SnbecriberB. Number of Shares taken by Snbscribers. 1. John Jones of 2. John Smith of 3. Thomas Green of 4. John Thompson of 5. Caleb White of 6. Andrew Brown of 7. Abel Brown of in the county of merchant in the county of in the county of in the county of in the county of in the county of in the county of Total shares taken 1 5 2 2 3 4 1 18 Dated the 22nd day of November, 1861. Witness to the above signatures, A. B., No. 20, Bond-street, Middlesex. Fm-m Jjj. — Summary of Capital and Shares. 307 m I Q S-S gT3 O 60 o 3 jd o i d =3 2 i U B pc; CO §2 ty jA 10 o3 o 3 e3 !zi !>)0 pffrQ -o a Jaj^ l^i^ rtU3 O J? f an official liquidator, and for the proof of debts, and for the list of oontributories to be brought in, and directions may bo given as to the advertise- General Order of Court, November, 1862. 321 ments to be issued for all or any of such purposes, and generally as to the proceedings and the parties to attend thereon. The proceedings under the order shall be con- tinued by adjournment, and, when necessary, by further summons, and any such direction as aforesaid may be given, added to, or varied, at any subsequent time, as may be found necessary. Official Liquidator. 8. The judge may appoint a person to the office of official liquidator, without previous advertisement, or notice to any party, or fix a time and place for the appointment of an official liquidator, (a) and may appoint or reject any person nominated (b) at such, time and place, and appoint any person not so nominated. (a) As to the appointment of an official liquidator, see p. 178, ante. As to the appointment of a liquidator in a voluntary winding-up under supervision, see Re London Quays and Warehouses Company (Law Rep. 3 Ch. App. 394), p. 233, ante. (b) A form of proposal for appointment of official liquidator is given in the third schedule (No. 7) hereto. 9. When a time and place are fixed for the appointment of an official liquidator, such time and place shall be adver- tised(a) in such manner as the judge shall direct, so that the first or only advertisement shall be published within fourteen days and not less than seven days before the day so fixed. (a) A form of advertisement is given in the third schedule (No. 6) hereto. 10. Every official liquidator shall give security by entering into a recognisance (a) witb two or more sufficient sureties, in such sum as the judge may approve ; and the judge may, if he shall think fit, accept the security of any guarantee society established by charter or act of Parliament in England, in lieu of the security of such sureties as afore- said, or of any of them. (a) A form of recognisance is given in the third schedule (No. 10) hereto ; as, also, a form of affidavit of sureties (No. 11). 11. The official liquidator shall be appointed by order ; (a) and unless he shall have given security, a time shall be fixed by such order within which he is to do so ; and. the order shall fix the times or periods at which the official liquidator is to leave his accounts of his receipts and payments at the judge's chambers, and shall direct that all moneys to be T 322 The Oompcrnks Act, 1862. received sliall be paid into the Bank of England, imme- diately after the receipt thereof, to the account of the official liquidator of the Company, and an account shall be opened there accordingly; and an office copy of the order shall be lodged at the Bank of England. (a) A form of order is given in the third schedule (No. 8) hereto. 12. When an official liquidator has given security pursuant to the directions in the order appointing him, the same shall be certified by the chief clerk, as in the case of a receiver appointed in a cause, subject to giving security. 13. The official liquidator shall, on each occasion of passing his account, and also whensoever the judge may so require, satisfy the judge that his sureties are living, and resident in Great Britain,, and have not been adjudged bankrupt or become insolvent, and in default thereof he may be required to enter into fresh security within such time as shall be directed. 14. Every appointment of an official liquidator shall be advertised, (a) in such manner as the judge shall direct, immediately after he has been appointed, and has given security. (a) For a form of advertisement, see the third schedule (No. 15) hereto. 15. Where it is desired to appoint provisionally (a) an official Uquidator, an application for that purpose may, at any time after the presentation of the petition for winding-up the Company, be made by summons, without advertisement or notice to any person, unless the judge shall otherwise direct; and such provisional official liqui- dator may, if the judge shall think fit, be appointed (fc) without security. (a) As to the appointment of a provisional official liquidator, see p. 164, ante. (b) A form of order appointing a provisional official liquidator is given in the third schedule (No. 9) hereto. 16. In case of the death, removal or resignation of an official liquidator, another shall be appointed in his room, in the same manner as directed in the case of a first appoint- ment, and the proceedings for that purpose may be taken by such party interested as may be authorised by the judge to take the same. General Ordler af Court, November, 1862. 323 17. The official liquidator shall, with all convenient speed after he is appointed, proceed to make up, continue, complete^ and rectify the books of account of the Company ; and sha^ provide and keep such books of account aa shall be'necessary, or as the judge may direct, for the purposes aforesaid, and for showing the debts and credits of the Conipany, including- a ledger which shall contain the sepa,rate a,ccoiints pf ^he contr^butories, and in which every contrilpiitory shall ^e debited (fij) from time to time with the amount payable by him in respect of any call tp be made as provided by the said act and these rules. (a) See sect. 154 of the act, and Re Madrid and Valencia RaihvoM Company, Uhadimck^s ease (15 Jur. 597), p. 238, ante. 18. The official hquidator shall be allowed in his accov^nts, or otherwise paid, such salary or remuneration (a) as the judge may from time to time direct, iacluding any necessary employment of assistants or clerks by the official liquidator, to which regard shall be had ; and such salary or remunera- tion may either be fixed at the time of his appointment^ or at any time thereafter, as the judge may think fit. Every allowance of such salary or remuneration, unless made at the time of his appointment, or upon passing an account, shall be made upon application for that purppse by thq official liquidator, on notice to such persons (if any), an^ supported by such evidence as the judge shall require; nevertheless, the judge may from time to time alloY{ any sum he may think fit to the official liquidator, on account of the salary or remuneration to be thereafter allowed. (a) In May, 1868, the following Order, regulating the remuneration of official liquidators, was adopted by the Master of the Rolls and Vice- Chancellors, after having been sanctioned by the Lord Chancellor : — " Every application by an official liquidator for remtmeration must be supported by. an affidavit showing the number of hours devoted by him and his clerks respectively to the business of the liquidation. In fixing the amount of the remuneration, the judge wiU, subject as hereinafter mentioned, be guided by the following scale : — Liquidators. Per day of eight hours. Class 1. Where the assets divisible among the un- £ £ secured creditors shall not amount to 500 1 ft/ Class 2. Where they shall amount to bOOl. and g] not to 2000 2 tS Class 3. Where they shall amount to 2000^. and \ not to 5000 3 324 The Gompcmies Act, 1862. Per day of eight hours. CO (Class 4. Where they shall amount to 5000Z. and £ £ Z] not to ... 10,000 4 g Class 5. Where they shall amovmt to 10,000?. and (Si not to 50,000 6 . ('Class 6. Where they shall amount to 50,000?. and U not to 100,000 8 &( Class 7. Where they shall amount to 100,000/. and g] not to 500,000 10 "^ Iciass 8. Where they shall amount to over ... 500,000 12 Clerks. 1st Class. 2nd Class. 3rd Class. t. d. s. d. s. Group A 2 1 6 1 per hour. „ B 3 2 6 1 „ „ C 3 6 2 6 1 „ "If in the special circumstances of any liquidation it shall at any time, or from time to time, appear to the judge that it is proper to place it on a higher or lower class, he will so place it accordingly. "If it shall appear to the judge that in the special circumstance of any liquidation it is proper to add to or deduct from the amount of the remuneration provided by the scale, he will make such addition or deduction accordingly. If during the progress of a liquidation it shall appear to the judge expedient so to do, he will sanction payments to the Uquidator on account of his remuneration. " For this purpose the judge will estimate the amount of such remu- neration as well as circumstances will admit, and wUl pay to the liquidator either the whole of such estimated remuneration, or such part thereof as to the judge shall seem reasonable." See Re Agra and MasUnnaris Bank, Cannan's claim (Law Rep. 7 Eq. 107), p. 179, ante. See, also, p. 184, ante, as to withholding remunera- tion from an official liquidator who had been guilty of culpable negligence. 19. The accounts of the official liquidator shall be left at the judge's chambers at the times directed by the order appointing him, and at such other times as may from time to time be required by the judge, and such accounts shall, upon notice to such parties (if any) as the judge shall direct, be passed and verified in the same manner as receivers' accounts. Proof of Debts. 20. For the purpose of ascertaining the debts and claims due from the Company, and of requiring the creditors to come in and prove their debts or claims, an advertisement (a) shall be issued at such time as the judge shall direct ; and siuli advertisiment shall fix a time(5) for the creditors to send their names and addresses, and the particulars of their debts or claims, and the names and addresses of their Oeneral Order of Court, November, 1862, 325 solicitors (if any) to the official liquidator, and appoint a day for adjudicating thereon. (a) For a form of advertisement, see the third schedule (No. 16) hereto, (ft) See sect. 107 of the act, p. 204, ante. 21. The creditors need not attend upon the adjudication, nor prove their debts or claims, unless they are required to do so by notice from the official liquidator ; but upon such notice being given, they are to come in and prove their debts or claims within a time to be therein specified. 22. The official liquidator shall investigate the debts and claims sent in to him, and ascertain, so far as he is able, which of such debts and claims are justly due from the Company ; and he shall make out and leave at the chambers of the judge, a list of all the debts and claims sent in to him, distinguishing which of the debts and claims, or parts of debts and claims so claimed, are, in. his opinion, justly due and proper to be allowed without further evidence, and which of them, in his opinion, ought to be proved by the creditors ; and he shall make and file, prior to the time appointed for adjudication, an affidavit, (») setting forth which of the debts and claims in his opinion are justly due and proper to be allowed without further evidence, and stating his belief that such debts and claims are justly due and proper to be allowed, and the reasons for such belief. (a) For a form of affidavit, see the third schedule (No. 17) hereto. 23. At the time appointed for adjudicating upon the debts and claims, or at any adjournment thereof, the judge may either allow the debts and claims upon the affidavit of the official liquidator, or may require the same, or any of them, to be proved by the claimants, and adjourn the adju- dication thereon to a time to be then fixed ; and the official liquidator shall give notice (a) to the creditors whose debts or claims have been so allowed, of such allowance. (a) For a form of the notice, see the third schedule (No. 19) hereto. 24. The official liquidator shall give notice (a) to the creditors whose debts or claims have not been allowed upon his affidavit, that they are required to come in and prove(6) the same by a day to be therein named, being not less than four days after such notice, and to attend at a time to be therein named, being the time appointed by the advertise- ment, or by adjournment (as the case may be) for adjudi- cating upon such debts and claims. 326 The Companies Act, 1862. (a) A form is given in the third schedule (No. 20) hereto. (b) For a form of affidavit by a creditor in proof of his debt, see the third schedule (No. 21) hereto. 25. The value of such debts and claims (a.) as are made admissible to proof by the 158th section of the said act, shall, so far as is possible, be estimated according to the value thereof at the date of the order to wind-up the Company. (a) See Re Trent and Humber Company, Ex parte Cambrian Steam Packet Company (Law Rep. 6 Eq. 399, n.), p. 244, ante. 26. Interest on such debts and claims as shall be allowed shall be computed, as to such of them as carry interest, after the rate they respectively carry j any creditor whose debt or claim so allowed does not carry interest, shall be entitled to interest, after the rate of 4L per centum per annum, from the date of the order to wind-up the Company, out of any assets which may remain after satisfying the costs of the winding-up, the debts and claims established, and the interest of such debts and claims as by law carry interest, (a) (a) This rule has been held to be unauthorised by the act, and there- fore invalid, Re East of England Banking Company (4 Ch. App. 19) ; Be Herefordshire Banking Company (Law Rep. 4 Eq. 250) ; and Re Hatfield Casic Company (9 Jur. N. S. 997 ; 11 W. R. 971). 27. Such creditors as come in and prove their debts or claims pursuant to notice from the oflB.cial Hquidator, shall be allowed their costs of proof, in the same manner as in the case of debts proved in a cause. 28. The result of the adjudication upon debts and claims shall be stated in a certificate (n) to be made by the chief clerk, and certificates as to any of such debts and claims mav be made from time to time. All such certificates shall state whether the debts or claims are allowed or disallowed, and whether allowed as against any particular assets, or in any other qualified or special manner. (a) For a form, see tlie third schedule (No. 22) hereto. List of Coiitnbutones. 29. The official liquidator shall, with all convenient speed after his appointment, or at such time as the judge shall direct, make out and leave at the chambers of the judge a list of the contributories of the Company; and such list shall bo voritiod by the affidavit (a) of the official liquidator, and shall, so far as is practicable, state the respective addresses of, and the number of shares or extent of interest Oeneral Order of Court, November, 1862. 327 to be attributed to each such contributory, and distinguish the several classes of contributories. And such list may from time to time, by leave (b) of the judge, be varied or added to, by the official liquidator. (a) For a fonn of affidavit, see the third schedule (No. 24) hereto. An additional aifidavit (No. 29) must be made in support of the sup- plemental list. (6) For a form of order on application to vary list, see the third schedule (No. 32) hereto. 30. Upon the list of contributories being left at the chambers of the judge, the official liquidator shall obtain an appointment for the judge to settle the same, (a) and shall give notice in writing (6) of such appointment to every person included in such list, and stating in what character, and for what number of shares, or interest such person is included in the list ; and, in case any variation or addition to such list shall at any time be made by the official liquidator, a similar notice in writing shall be given to every person to whom such variation or addition applies. All sr.ch notices shall be served (c) four clear days before the day appointed to settle such list, or such variation or addition. (a) As to the settlement of the list, appKcations to take names off it, &c., see p. 185, et seq. (J) For a form, see the third schedule (No. 26) hereto. (c) For a form of affidavit of service of notice, see the third schedule (No. 27) hereto. 31. The result of the settlement of the list of contribu- tories shall be stated in a certfficate (a) by the chief clerk ; and certfficates may be made from time to time for the purpose of stating the result of such settlement down to any particular time, or as to any particular person, or stating any variation of the Hst. (a) For a form, see the third schedule (No. 31) hereto. Sales of Property. 32. Any real or personal property belonging to the Com- pany may be sold with the approbation of the judge, in the same manner as in the case of a sale under a decree or order of the court in a suit, or, if the judge shall so direct, by the official liquidator ; (a) and upon any such sale by the official liquidator, the conditions or contracts of sale shall be settled and approved of by the judge, unless he shall otherwise 328 The Oompcmies Act, 1862. direct ; and the judge may, if hie thinks fit, direct such con- ditions and contracts, and the abstract of the title to the property, to be submitted to one of the conveyancing counsel of the court, under the second of the Consolidated General Orders, and may, on any sale by public auction, fix a reserved bidding ; and, unless on account of the small amount of the purchase moneys or other cause, it shall, having regard to the amount of the security given by the official Uquidator, be thought proper that the purchase moneys shall be paid to him, all conditions and contracts of sale shall provide that the purchase moneys shall be paid by the respective pur- chasers into the Bank of England, to the account of the official liquidator of the Company. (o) As to sales of a Company's property, see p. 182, ante. Galls. 33. Every application (a) to the judge to make any call(fe) on the contributories or any of them, for any purpose autho- rised by the said act, shall be made by summons, (c) stating the proposed amount of such call ; and such summons shall be served, (ci) four clear days at the least before the day appointed for making the call, on every contributory pro- posed to be included in such call ; or if the judge shall so direct, notice of such intended call may be given by adver- tisement, (e) (a) The official liquidator must make an affidavit in support of his application for a call. A form is given in the third schedule (No. 33) hereto. (fc) As to the making of calls on contributories, see p. 200, et scq. (c) For a form, see the third schedule (No. 34) hereto. (d) Where a Company fonned to carry on business in London and Paris, and having mmierous shareholders resident in France, was ordered to be wound-up, and a call became necessary, it was proposed to serve them with the summons for making the call by post. It was held that for the mere purpose of making the call such ser^-ice would be sufficient, it being open to the contributory so served to raise the question of the validity or the service when proceedings to enforce payment should be taken : (He' General Intcnialioiial Aqmcy Company, 16 L. T. N. S. 725, Ch., on appeal ; W. N. 1867, p. 178.") ((') For a form of advertisement, see the third schedule (No. 35) hereto. 34. When any order («.) for a call has been made, a copy thereof shall be forthwith sei'ved upon each of the contri- butories included in such call, together with a notice (6) from the official liquidator specifying the amount or balance due from such contributory (having regard to the provisions of General Order of Court, November, 1862. 320 the said act) in respect of such call; but such order need not be advertised unless, for any special reason, the judge shall so direct. (a) For a form of the order, see the third schedule (No. 36) hereto. (b) A form is giyen in the third schedule (No. 37) hereto. 35. At the time of making an order for a call, the further proceedings relating thereto shall be adjourned to a time subsequent to the day appointed for the payment thereof, and afterwards from time to time so long as may be necessary ; and at the time appointed by any such adjourn- ment, or upon a summons to enforce payment of the call, duly served, and upon proof of the service of the order and notice of the amount due, and non-payment, an order (a) may be made for such of the contributories who have made default, or of such of them against whom it shall be thought proper to make such order, to pay the sum which by such former order and notice they were respectively required to pay, or any less sum which may appear to be due from them respectively. (a) The application for the order must be supported by affidavit, for a form of which see the third schedule (No. 38) hereto. No. 39 is a form of the order itself. See, also, No. 42, a form of an affidavit of service of the order. Payment in of Money i^ and Deposit of Seawrities. 36. If any official liquidator shall not pay (a.) all the moneys received by him into the Bank of England, to the account of the official Hquidator {b) of the Company, within seven days next after the receipt th^eof, unless the judge shall have otherwise directed, such official liquidator shall be charged in his account with ten shillings for every lOOZ., and a proportionate sum for any larger amount, retained in his hands beyond such period, for every seven days during which the same shall have been so retained, and the judge may, for any such retention, disallow the salary or remune- ration of such official liquidator. (a) As to the impropriety of an official liquidator employing the money of the Company for the purpose of making profit, see the observations of the Master of the RoUs : (W. N. 1866, p. 327.) (V) See the third schedule (Form No. 14) hereto. 37. All bills, notes, and other securities payable to the Company or to the official liquidator thereof shall, as soon as they shall come to the hands of such official liquidator, be deposited by him in the Bank of England for the purpose 330 The Gompcmies Act, 1862. of being presented by tbe bank for acceptance and payment^ or for payment only, as the case may be. 38. All orders for payment of calls, balances, or other moneys due from any contributory or other person, shall direct the same to be paid into the Bank of England, to the account of the official liquidator of the Company, unless, on account of the smallness of the amount or other cause, it shall, having regard to the amount of the sectirity given by the official liquidator, be thought proper to direct payment thereof to the official liquidator. Provided that where any such order has been made directing payment of a specific sum into the Bank of England, in case it shall be thought proper for the pui-pose of enabUng the official Kquidator to issue execution or take other proceedings to enforce the payment thereof, or for any other reason, an order may, either before service of such former order, or after the time thereby fixed for payment, be made, without notice, for payment of the same sum to the official liquidator, (a) (a) When the official liquidator desires to issue a writ oifi.fa. against a contributory who has not paid a call, he must obtain an order for pay- ment to himself under this rule : {Re Leeds Banking Company, Law Kep. 1 Ch. App. l.W.) 39. At the time of the service of any order for payment into the Bank of England, the official liquidator shall give to the party served a notice, to the purport or effect set forth in Form No. 40 in the third schedule hereto, for the purpose of informing him how the payment is to be made ; and before the time fixed for such payment, the official liqui- dator shall furnish the cashier of the Bank of England with a certificate, to the purport or effect set forth in Form No. 41 in the third schedule hereto, to be signed by such cashier, and delivered to the party paying in the money therein mentioned. 40. For the purpose of enforcing any order for payment of money into the Bank of England an affidavit of the official liquidator, to the purport or effect set forth in Form No. 43 in the third schedule hereto, shall be sufficient evi- dence of the non-payment thereof. 41. All moneys, bills, notes, and other securities paid and delivered into the Bank of England, shall be placed to the credit of the account of the official liquidator of the Company; and orders for any such payment and delivery shall direct the same accordingly. General Order of Gomi, November, 1862. 331 Delivery out of Securities, and Payment out and Investment of Moneys. 42. All bills, notes, and other securities delivered into tlie Bank of England, shall be delivered out upon a request signed by the official liquidator, and countersigned by the chief clerk of the judge ; and moneys placed to the account of the official liquidator shall be paid out upon cheques or orders, signed by the official liquidator, and countersigned by the chief clerk of the judge. 43. All or any part of the money for the time being standing to the credit of the account of the official liquidator at the Bank of England, and not immediately required for the purposes of the winding-up, may be invested in the purchase of Bank 3L per Cent. Annuities, Reduced 3L per Cent. Annuities, New 3L per Cent. Annuities, or New 21. 10s. per Cent. Annuities, in the name of the official liquidator, or in the purchase of exchequer biUs. All such investments shall be made by the Bank of England, upon a request(a) signed by the official hquidator, and countersigned by the chief clerk of the judge, and which request shall be a sufficient authority for debiting the account with the purchase money ; and such exchequer bills, and in case of an exchange thereof any new exchequer bills, shall be re- tained by or deposited with the Bank of England, in the name and on behalf of the official liquidator ; and such annuities or exchequer bills shall not afterwards be sold or transferred or otherwise dealt with except upon a direction for that purpose, signed by the official liquidator, and coun- tersigned by the chief clerk of the judge, or under an order to be made by the judge. (a) For a form of the request, see the third schediUe (No. 44) hereto. 44. All dividends and interest to accrue due upon any such annuities, shall from time to time be received by the Bank of England, under a power of attorney to be executed by the official liquidator, and placed to the credit of the account of such official liquidator ; and such of the exche- quer biUs as shall from time to time be in course of payment^ shall be delivered by the Bank of England to one of their cashiers, who is to receive the interest due thereon, and exchange the same for new bills, in case such new bills are issued, or otherwise to receive the principal and interest due on such of the said bills, so in course of payment, as cannot be exchanged, and pay the said intereatj or principal and 332 The Compcmtes Act, 1862. interest, as the case may be, into the Bank of England to the credit of the account of the ofl&cial liquidator of the Company. Meetings of Gr editors or GontD-iiutories . 45. When the judge shall direct a meeting of the creditors or contributories of' the Company to be summoned under the 91st(a) or 149th(6) section of the said act, the official liquidator shall give notice in writing(c) seven clear days before the day appointed for such meeting, to every creditor or contributory, of the time and place appointed for such meeting, and of the matter upon which the judge desires to ascertain the wishes of the creditors or contributories ; or, if the judge shall so direct, such notice may be given by advertisement, in which case the object of the meeting need not be stated, and it shall not be necessary to insert such advertisement in the London Gazette. (a) See page 177, ante. (/)) See page 233, ante. (c) For a form of the notice, see the third schedule (Xo. 45) hereto. 46. The votes of the creditors or contributories of the Company at any meeting summoned by the direction of the judge, may be given either personally or by proxy ; but no creditor shall appoint a proxy (a) who is not a creditor of the Company whose debt or claim has been allowed, and no contributory shall appoint a proxy who is not a contributory of the Company. (a) For a form of appoiutment of proxy, see the third schedule (No. 46) hereto. 47. The direction of the judge for any meeting of creditors or contributories under the 91st or 149th section of the said act, and the appointment of a person to act as chairman of any such meeting, shall be testified by a memorandum(a) signed by the chief clerk of the judge. {a) For a form of the memorandum, see the third schedule (No. 47) hereto. See, also. No. 48, for a form of the chairman's report. Virodion or Siinction of tlw Judgi\ 48. The sanction of the judge((/) to the drawing, accept- ing, making, and indorsing of any bill of exchange or promissory uote by any official liquidator, shall be testified by a memorandum on sucli bill of exchange or promissory note, signed by the chief clerk of the judge. General Order of Court, November, 1862. 333 (o) See p. 183, ante. See, also, the third schedule hereto, Form No. 49. 49. Every application for the sanction of the judge to a compromise with any contributory (a) or other person in- debted to the Company, shall be supported by the affidavit of the official liquidator that he has investigated the affairs of such contributory or person, and stating his belief that the proposed compromise will be beneficial to the Company, and his reasons for such belief; and the sanction of the judge thereto shall be testified by a memorandum, signed by the chief clerk of the judge, on the agreement(6) of compromise, unless any party shall desire to appeal from the decision of the judge, in which case an order shall be drawn up for that purpose. (a) See sect. 160 of the act, p. 245, ante. (i) For a form of agreement of compromise, see the third schedule (No. 50) hereto ; for a form of memorandum of sanction, see No. 51. 50. The direction or sanction of the judge for any other proceeding or act to be taken or done by the official liqui- dator, shall be obtained upon summons, and an order(a) shall be drawn up thereon, unless the judge shall otherwise direct. (a) For a form, see the third schedule (No. 52) hereto. Applications to the Gowrt or Judge under sects. 137, 138, 141, 167, and 168, of the Act. 61. Every application under the 187th, 138th or 141st section of the said act shall be made by petition or motion, or, if the judge shall so direct, by summons at chambers ; and every application under the 167th or 168th section of the said act shall be made by petition. Orders. 52. AU orders made in chambers shall be drawn up in chambers, unless specially directed to be drawn up by the registrar, and shall be entered in the same manner, and in the same office, as other orders made in chambers. Advertisements. 53. When an advertisement is required for any purpose, except where otherwise directed by these rules, the adver- tisement shall be inserted once in the London Gazette, and in such other newspaper or newspapers, and for such number 334 The Gom/pawhea Act, 1862. of times as may be directed. The judge may, in sucli cases as he shall think fit, dispense with any advertisement required by these rules. Admission of Documents. 54. Any party to any proceeding in court or chambers relating to the winding-up of a Company may, by notice in writing in the Form No. 6, in Schedule N. to the Consolidated General Orders, or to the like effect, call on any other party thereto competent to admit the same, to admit any document saving all just exceptions ; and in case of refusal or neglect so to admit, the costs of proving such document shall be paid by the party so refusing or neglecting, unless the judge shall be of opinion that the refusal to admit was reasonable ; and no costs of proving any document shall be allowed unless such notice shall have been given, except in cases where the omission to give such notice has been, in the opinion of the taxing master, a saving of expense. Affidavits. 65. Where an order shall have been made for the wind- ing-up of any Company, any person intending to use any affidavit in any proceeding under such order, shall file the same in the Record and Writ Clerks' Ofiice, and give notice thereof to the ofiicial liquidator. The person, other than the official liquidator, filing the affidavit shall not be re- quired to take an office copy thereof, but an office copy thereof shall be taken by the official liquidator, and he shall produce the same at the hearing of any application or pro- ceeding upon which it is intended to be used, unless the judge shall otherwise direct. Certificate of Chief Clerl: 56. The 48th, 49th, 50th, 51st, 52nd and 55th rules of the 35th of the Consolidated General Orders, shall apply to all certificates of the chief clerk in the matter of the wind- ing-up of any Company ; nevortheless, certificates on passing the official liquidator's accounts may be approved and signed by the judge without delay, and upon being so signed, shall be filed and forthwith acted upon. BcijUti')- and File of Proceedings. 57. A register shall be kept of all proceedings in the judge's chambers in each matter, in the same manner as Oetieral Order of Court, November, 1862. 335 required by tte 57tli rule of the 35tli of tlie Consolidated General Orders, and no documents or proceedings are to ba filed in the judge^s chamberSj unless the judge shall other- wise direct. 58. All orders, exhibits, admissions, memorandums, and office copies of affidavits, examinations, depositions, aitd cer- tificates, and all other documents relating to the winding- up of any Company, shall be filed by the official liquidator, as far as may be, in one continuous file, and such file shall be kept by him or otherwise, as the judge may from time to time direct. Every contributory of the Company, and every creditor thereof whose debt or claim has been allowed, shall be entitled, at all reasonable times, to inspect such file frea of charge, and, at his own expense, to take copies or extracts from any of the documents comprised therein, or to be fur- nished with such copies or extracts at a rate not exceeding three half-pence per folio of seventy-two words; and such file shall be produced in court, or before the judge, and otherwise, as occasion may require. Provisional Official Liquidators. 59. All the above rules relating to official liquidators shall, so far as the same are applicable, and subject to the directions of the judge in each case, apply to provisional official liquidators. Attendaiwe and Appearance of Parties, 60. Every person, for the time being, on the list of con- tributories of the Company, left at the chambers of the judge by the official Hquidator, and every person having a debt or claim against the Company, allowed by the judge, shall be at liberty, at his own expense, to attend the pro- ceedings before the judge, and shall be entitled, upon pay- ment of the costs occasioned thereby, to have notice of all such proceedings as he shall by written request desire to have notice of; but if the judge shall be of opinion that the attend.ance of any such person upon any proceeding has occasioned any additional costs which ought not to be borne by the funds of the Company, he may direct such costs, or a gross sum in lieu thereof, to be paid by such person ; and such person shall not be entitled to attend any further proceedings until he has paid the same. 61. The judge may from time to time appoint any one or 336 The Companies Act, 1862. more of the contributories, or creditors, as lie thinks fit, to represent (a) before bim, at the expense of tbe Company, all or any class of the contributories or creditors, upon any question as to a compromise with any of the contributories or creditors, or in and about any other proceedings before him relating to the winding-up of the Company, and may remove the person or persons so appointed. In case more than one person shall be so appointed, they shall unite in employing the same solicitor to represent them. (a) la Re Beariz Tin Company (W.N. 1868, p. 207), the Master of the Rolls appointed a creditors' representative. See, also. Re Bamed's Banking Company, Helbert'.i case (W. N. 1868, p. 213), where the coiu^; refused to hear a creditors' representative because the order appointing him was not produced. 62. No contributory or creditor shall be entitled to attend any proceedings at the chambers of the judge, unless and until he has entered in a book(a) to be kept there for that purpose his name and address, and the name and address of his solicitor (if any), and upon any change of his address or of his solicitor, his new address, and the name and address of his new solicitor. !■ (b) For a form of the book to be kept, see the third schedule (No. 53) hereto. Serviees of Summonses, Notices, Sfc. 63. Services upon contributories and creditors shall be eflfected, except when personal service is required, by send- ing the notice, or a copy of the summons or order or other proceeding, through the post in a prepaid letter, addressed to the solicitor of the party to be served (if any), or otherwise to the party himself at the address entered or last entered pursuant to the preceding rule ; or if no such entry has been made, then, if a contributory, to his last known ad- dress or place of abode ; and if a creditor, to the address given by him, pursuant to the foregoing Eule 20; and such notice, or copy summons, order, or other proceed- ing, shall be considered as served at the time the same ought to be delivered in the due course of delivery by the post-office, and notwithstanding the same may be returned by the post-office. 64. No service under these rules shall be deemed invalid by reason that the Christian name, or any of the Christian names of the person on whom service is sought to be made. General Ordei' of Gourt, Novemher, 1862. 337 lias been omitted^ or designated by initial letters, in the list of contributorieSj or in the summons, order, notice, or other document wherein the name of such contributory or creditor is contained, provided the judge is satisfied that such service is in other respects sufficient. Termination of winding-up. 65. Upon the termination of the proceedings in chambers for the winding-up of any Company, a balance sheet shall be brought in by the official liquidator of his receipts and pay- ments, and verified by his affidavit ; and the official Hquidator shall pass his final account, and the balance (if any) due thereon shall be certified. And upon payment of such balance, in such manner as the court or judge shall direct, the recognisance entered into by the official liquidator and his sureties may be vacated. 66. When the official liquidator has passed his final account, and the balance (if any) certified to be due thereon has been paid ia such manner as the judge shall direct, a certificate (a) shall be made by the chief clerk, that the afiairs of the Company have been completely wound-up ; and in case the Company has not been already dissolved, the official liquidator shall, immediately after such certificate has become binding, apply to the judge for an order (&) that the Company be dissolved from the date of such order, (c) (a) For a form, see the third schedule (No. 55) hereto. (6) For a form of the order, see the third schedule (No. 56) hereto. (c) See sects. Ill, 112, and 113 of the act, p. 205, et seq. 67. When the proceedings for winding-up any Company have been completed, the file of proceedings, and the book containing the official liquidator's account, shall be deposited in the Eecord and Writ Clerks' Office. Duties of Solicitor of Official Liquidator. 68. The solicitor (a.) of the official liquidator shall conduct all such proceedings as are ordinai'ily conducted by solicitors of the court ; and where the attendance of his solicitor is required on any proceeding in court or chambers, the official liquidator need iiot attend in person, except in cases where his presence is necessary in addition to that of his solicitor, or the judge shall direct him to attend. (a) As to the appointment of a solicitor, see sect. 97 of the act, and the note under it, p. 184, ante. See, also, Form No. 12 in the third schedule hereto. 338 The Companies Act, 1862. Forms. 69. The forms set fortli or referred to in the third schedule to these orders, with such variations as the circumstances of each case may require, may be used for the respective purposes mentioned in such schedule. Fees. 70. Solicitors shall be entitled to charge, and be allowed the fees set forth and referred to in the first schedule hereto, unless the court or judge shall otherwise specially direct. 71. The fees of court set forth and referred to in the second schedule hereto, shall be paid in relation to proceed- ings in the Court of Chancery under " The Companies Act, 1862," and shall be collected by means of stamps, in the manner prescribed by the 39th of the Consolidated General Orders. Taxation of Costs. 72. Where an order is made in court or chambers for payment of any costs, the order shall direct the taxation thereof by the taxing-master j except in cases where a gross sum in lieu of taxed costs is fixed by the order, in accord- ance with the 87th rule of the 40th of the Consolidated General Orders. Power of Judge. 73. The power of the court, and of the judge sitting in chambers, to enlarge or abridge the time for doing any act, or taking any proceeding, to adjourn, or review any pro- ceeding and to give any direction as to the course of proceeding, is unaffected by these rules. Genei-al Directions. 74. The general practice of the court, including the course of proceeding and practice at the judges' chambers, as pro- vided by the statute 15th and 1 6th Victoria, chapter 80, and the general orders of the court relative thereto, shall, in cases not provided for by "The Companies Act, 1862," or these rules, and so far as the same are applicable, and not incon- sistent with the said act, or these rules, apply to all proceed- ings for winding-up a Company. A^tplication of Rules. 75. These rules apply only(a) to proceedings under " The Corapa,niea Act, 1862." («) Soo County Court Orders, 1867, post Fees and Oharges to be allowed to Solicitors. 339 Commencement of Rules. 76. These rules shall take eflFect and come into operation on and after the 25th day of November, 1862. Interpretation. 77. The 1st rule of the 23rd of the Consolidated General OrderSj and the general interpretation clause therein, shall be deemed to extend and apply to the rules of this order; and such rules shall have the effect of, and be deemed to be general orders of the court. Westbuky, C. John Eomilly, M. E. RiCHD. T. KiNDEESLEY, V. C. John Stuaet, V. C. W. P. Wood, V. C. THE FIRST SCHEDULE. Fees and Charges to be allowed to Solicitors. £ .s. d. For preparing and drawing up every order made at chambers, and attending for same, and at the registrars' office to get same entered 13 4 For iogrossing every order, in addition to the above fee, per folio 4 For other duties performed, such of the fees on the higher scale authorised by the 2nd rule of the 38th of the Consolidated General Orders, and the regulations as to solicitors' fees subjoined thereto, as are apphcable ; except that the special fee allowed on creditors' claims is not to apply. Where under such regulations a fee of 3 guineas may be allowed for attending any summons or other appointment at the judge's chambers, the same may be increased to any sum not exceeding 5 guineas. The fee of 2s. Qd. allowed by such regulations for notices and services, shall be reduced to Is. M., where the service may be effected as provided by the above Rule 63. The usual charges relating to printing, shall be allowed in lieu of copies for service where the fee for copies would exceed the charges for printing, and amount to more than Zl. ■L 2 340 The Companies Ad, 1862. THE SECOND SCHEDULE. £ s. d. 3 5 1 5 1 6 1 5 5 Fees to be collected by Means of Stamps. In the Judges^ Chambers. For every Bummons ... ... ... For every order drawn up by the chief clerk ... For every advertisement ... For every certificate ... ... For every oath, affirmation, declaration, or attestation upon honour ... ... ... ... In the Registrars' Office. For every order made in court For every order made in chambers For every office copy of an order In the Examiners' Office. The same fees as those directed to be paid and collected in such office by the 2nd rale of the 89th of the Consolidated General Orders, and the regulations subjoined thereto.. In the Record and Writ Clerks' Office, and Report Office. Such of the fees directed to be paid and collected in such office by the 2nd rule of the 39th of the ConsoUdated General Orders, and the regulations subjoined thereto, as are appli- cable. In the Taxing Masters' Office. The same fees as those directed to be paid and collected by the 2nd rule of the 39th of the Consohdated General Orders, and the regulations subjoined thereto. In the Office of the Lord Chancelloj-'s Principal Secretary. For every petition ... 10 In the Office of the Secretary at the Rolls. For every petition ... 10 THE THIRD SCHEDULE. FORMS. No. 1. Advertisement of Petition. [Rule 2.] In the matter of "The Companies Act, 1662"; and of the Company. Notice is hereby given that a petition for the winding-up of the above-named Company by the Court [or, subject to the supervision of the court] of Chancery was, on the day of , 186 , presented to the Lord Chancellor [oi-, the Master of the Rolls] by the snid Cora^iany, [or, by A. B., of , a creditor [or, contributory] of till' snid Compiiny [nr, os the ca.ie may be]. And that the said Third Schedule. — Forms. 341 petition is directed to be heard before the Vice-Chancellor, [or, Master of the Rolls] on the day of , 186 ; and any creditor or contributory of the said Company desirous to oppose the making of an order for the winding-up of the said Company under the above act, should appear at the time of hearing, by himself or his counsel for that purpose ; and a copy of the petition will be furnished to any creditor or contributory of the said Company requiring the same, by the undersigned, on payment of the regulated charge for the same. C. and D., of &c. [agents for E. and F., of &c.] Solicitors for the petitioner. No. 2. Affidavit verifying Petition. [Rule 4.] In Chancery. In the matter, &c. I, A. B., of &c:, make oath and say, that such of the statements in the petition now produced and shown to me, and marked with the letter A., as relate to my own acts and deeds, are true, and such of the said statements as relate to the acts and deeds of any other person or persons, I believe to be true. Sworn, &c., No. 3. Order for winding-up by the Court. [25 & 26 Vict. c. 89, ss. 81, 82.] The Master of the Rolls> day, the day of lor, Vice-Chancellor > 186 . ]. ) In the matter, &c. Upon the petition of the above-named Company [or, A. B., of &c., a creditor [or contributory] of the above-named Company on the day of 186 , preferred unto the Right Honourable the Lord High Chancellor of Great Britain [or. Master of the Rolls], and upon hearing counsel for the petitioner, and for , and upon reading the said petition, an affidavit of (the said petitioner) filed, &c., verifying the said petition, an affidavit of L. M., filed the day of 186 , the Londori Gazette, of the day of , the Times newspaper of the day of [enter any other papers] each containing an advertisement of the said petition [enter any other evi- dence'], his honour [or, this court] doth order, that the said Company be wound-up by this court under the provisions of "The Companies Act, 1862." No. 4. Order for winding-up, subject to Supervision. [25 & 26 Vict. c. 89, ss. 147, 148.] The Master of the Rolls') day, the day of [or, Vice-Chancellor S- 186 ]. ) In the matter, &c. Upon the petition, &c., his honoin: [or, this court] doth order, that the voluntary winding-up of the said Company be continued, but subject to the supervision of this court ; and any of the proceedings under the said voluntary winding-up may be adopted as the judge shall think fit. And the creditors, contributories, and liquidators of the said Company, and all other persons interested, are to be at liberty to apply to the judge at chambers as there may be occasion. 342 The Companies Act, 1862. No. 5. Advertisement of Order to wind-up. [Rule 6.] In the matter, &c. By an order made by the Master of the Rolls [or, the Vice-Chancellor ] in the above matter, dated the day of , 186 , on the petition of the above-named Company lor, A. B., of ], it was ordered that, &c. [as in order']. C. and D., of &c. Solicitors for the said petitioner. No. 6. Advertisement of Time and Place fixed for the Appointment of Official Liquidator, [^ule 9.] In the matter, &c. Notice is hereby given, that the Master of the Rolls [or, the Vice-Chancellor ] has fixed the day of 186 , at o'clock in the noon, at his chambers in the Rolls- yard, Chancery-lane [or, at No. Lincoln's-inn], in the coimty of Middlesex, as the time and place for the appointment of an oflBcial liquidator of the above-named Company. G. H., Chief Clerk. No. 7. Proposal for Appointment of Official Liquidator (and Sureties} where Form No. 6 has been issued. In the matter, &c. We, the nndersigned contributories of the above-named Company for the number of shares placed opposite our respective names, hereby propose Mr. W. T., of &c., public accountant, to be the official liqui- dator of the said Company [and H. N., of &c., and J. P., of &c., to be his sureties]. Name. Address. Number of Shares held. No. 8. Order appointing an Official Liquidator. [Rules 10, 11.] Master of the Rolls [oc,) , the day of , Vice-ChanceUor ]^ 186 . at chambers. ) In the matter, &c. Upon the application, &c., and upon reading, &c., the judge doth hereby appoint R. P. H., of &c., official liquidator of the above-named Company. [Tfucciiriti/ has not been ffiveii, add, and it is ordered that the said R. P. H. do, on or before the day of next, give security to be approved of by the judge.] And it is ordered that the said R. P. H. do, on the day of , and day (,f 186 , and the same days in each succeeding year, leave his accounts at the chambers of the said judge. And it is ordered that all Third Schedule. — Forms. 343 moneys to be received by the said R. P. H. be paid by Viim into the Bank of England to the credit of the account of the official liquidator of the said Company, within seven days after the receipt thereof, [/n case two or more official liquidators are appointed add, and the said judge doth declare that the following acts, required or authorised by the above statute to be done by the official liquidator, may be done by either [or, any one, or, two] of the official liquidators hereby appointed, that is to say [describe the acts'] ; and that all other acts so required or authorised to be done be done by both [or, all] the official liquidators hereby appointed.] No. 9. Order appointing a Provisional Official Liquidator. [Rules 10, 11, 15, 59.] Master of the RoUs [or,") , the day of ■ , Vice-Chancellor ]> 186 . at chambers. ) In the matter, &c. Upon the application, &c., and upon reading, &c., the judge doth hereby appoint R. P. H., of &c., provisionally, official liquidator of the above-named Company [If security dispensed with add, without security ; or, if security is to be given, add directions as to security, accounts, and payment into the bank, as in Fm-m No. 8]. And the said judge doth hereby limit and restrict the powers of the said R. P. H., as such provisional official liquidator, to the following acts, that is to say [describe the acts ichich the provisional official liquidator is to be authorised to do] ■ No. 10. lleeognisance of ike Official Liquidator and Sureties. [Rule 10.] I R. P. H., of &c., W. B., of &o., and T. P., of &c., before g our Sovereign Lady the Queen in Her High Court of Chancery a jj personally appearing, do acknowledge themselves, and every o. s of them doth acknowledge himself, to owe to the Right .a _». Honorable Sir John RomUly, Knight, the Master of the ■"HS Rolls, and the Honorable Sir Richard Torin Kindersley, d'^ Knight, the senior Vice- Chancellor of the said court, the S respective sums of lawful money of Great Britain set opposite g to their respective names in the schedule hereto, to be paid g to the said Sir John Romilly and Sir Richard Torin Kindersley, o or one of them, or the executors or administrators of them, . S . or one of them; and in default of payment of the said sums, «^_g the said R. P. H., W. B., and T. P., are willing and do agree, ^^ and every of them is willing and doth agree for' himself, his Sa M heirs, executors, and administrators, by these presents, that ^§1 the said sums shall be levied, recovered, and received of and 5«S from them and every of them, and of and from all and SZ'^ singular the manors, messuages, lands, tenements, and here- Sl ditaments, goods, and chattels, of them and every of them, ■S I wheresoever the same shall be found. ' Witness our Sovereign , a? Lady Victoria, by the grace of God, of the United Kingdom '5a of Great Britain and Ireland, Queen Defender of the Faith, ^•| and so forth, at Westminster, the day of , 186 . 344 The Companies Ad, 1862. Whereas, in the matter of &c. [take title from order to wind-up] the Master of the Rolls [or, Vice-Chancellor ] has by an order dated the day of , 186 , appointed the said K. P. H. official liquidator of the said Company, and has thereby directed him to give security, to be approved of by the said judge [nr, in case the security precedes the order appointing, has approved of the said R. P. H. as a proper person to be appointed official liquidator of the said Company, upon his giving security]. And whereas the said judge has approved of the said W. B. and T. P. to be sureties for the said R. P. H. in the amounts set opposite to their respective names in the schedule hereto, and has also approved of the above-written recognisance, with the under- written condition, as a proper security to be entered into by the said R. P. H., W. B., and T. P., pursuant to the said order and [or, pursuant to] the general order of the said court in that behalf ; and in testimony of such approbation the chief clerk of the said judge hath signed an allowance in the margin hereof. Now the condition of the above- written recognisance is such, that if the said R. P. H., his executors, or administrators, or any of them, do and shall duly account for what the said R. P. H. shall receive, or become liable to pay, as official liquidator of the said Company at such periods and in such manner as the said judge shall appoint, and pay the same as the said judge hath [by the said order] directed, or shall hereafter direct, then the above recogni- sance to be void, otherwise to remain in fuU force and virtue. The Schedule above kefebked to. R P. H ... Thousand pounds. W. B ... Thousand pounds. T. P. ... Thousand pounds. Taken and acknowledged by the above-named R. P. H., &c., &c. No. 11. Affidavit of Sureties. [Rule 10.] In Chancery. In the matter, &c. We, W. B., of &c., and T. P., of &c., severally make oath, and say as follows : — 1. I, the said W. B., for myself, say that I am worth the sum of £ of lawful money of Great Britain, over and above what is sufficient for the payment of all my just debts and liabilities. 2. And I, the said T. P., for myself, say that I am worth the sum of f , of &c. [as above]. Sworn, &c. No. 12. Sanction of Appointment of Solicitor to Official Liquidator, and Appointment. [26 & 26 Vict. c. 89, s. 97.] In the matter, &c. The Master of the Rolls [or, "\'ice-Chancellor ] sanctions the Third Schedule. — Forms. 345 official liqiiidator appointing a solicitor, to assist him in the performance of his duties. Chief Clerk. I hereby appoint Messrs. C. and D., of &c., to be my solicitors in this matter. Dated this day of , 186 . R. P. H., Official Liquidator. No. 13. Order for Payment of Money or Delivery of Books, Sfc, to Official Liquidator. [25 & 26 Vict. u. 89, ss. 100, 101.] The Master of the Rolls x \or, Vice-Chancellor f day, the day of ] r ,186 . at chambers. / In the matter, &c. Upon the application of, &c., and on reading, &c., it is ordered, that A. B., of &c., do, within four days after service hereof, pay to [or, deliver, convey, surrender, or transfer to or into the hands of] R. P. H., the official liquidator of the said Company, at the office of the said R. P. H., situate at &c., the sum of £ being the amount of debt appearing to be due from the said A. B., on his account with the said Company [or, any sum or balance, books, papers, estate, or effects], [or, specifically describe the property'] now being in the hands of the said A. B., and to which the said Company is prima facie entitled [or, other- wise, as the case may 6e]. No. 14. Direction to open Account at the Bank of England. [Rules, 11, 32, 36—44.] The Master of the Rolls -. [or, Vice-Chancellor ( day of , ] r 186 . at chambers. ' In the matter, &c. To the Governor and Company of the Bank of England. Gentlemen, An order, dated the day of 186 , having been made in the above matter by the Master of the RoUs [or, the Vice- Chancellor ] for winding-up the above-named Company by the Court of Chancery, under the provisions of the said act, and R. P. H., of , having by order dated the day of 186 , been appointed official liquidator of the said Company, you are requested to open an account, to be entitled "The Account of the Official Liqui- dator of the Company," in your books, pursuant to the said act. All cheques drawn upon such account must be signed by the official liquidator, whose signature is attached hereto, and countersigned by 346 The Companies Act, 1862. one of the chief clerks of the said judge, whose signatures are also attached hereto. I am, gentlemen. Your most obedient servant., P XT Chief Clerk. Signatures. R. P. H., Official liquidator. r W (Chief Clerks of the Master of p' XT ■ -N the KoUs [or, Vice-Chancellor No. 15. Advertisement of Appointment of Official Liquidator. [Rule 14.] In the matter, &c. The Master of the Rolls [or, the Vice-Chancellor ] has, by an order dated the day of , 186 , appointed R. P. H., of , to be official liquidator of the above-named Company. Dated this day of , 186 . P TT Chief Clerk. No. 16. Advertisement for Creditors. [Rule 20.] Id the matter of, &c. The creditors of the above-named Company are required, on or before the day of 186 , to send their names and addresses, and the particulars of their debts or claims, and the names and addresses of their solicitors, if any, to R. P. H., of , the official liquidator of the said Company, and, if so required by notice in writing from the said official liquidator, are by their solicitors to come in and prove their said debts or claims, at the chambers of the Master of the RoUs [or, the Vice-ChanceUor ], in the Rolls-yard, Chancery-lane [or, at No. , Ldncoln's-inn], in the county of Middlesex, at such time as shall be specified in such notice, or in default thereof they wUl be excluded from the benefit of any distribution made before such debts are proved. day, the day of 186 , at o'clock in the noon, at the said chambers, is appointed for hearing and adjudicating upon the debts and claims. Dated this day of 186 . G. H., Chief Clerk. No. 17. Affidavit of Official Liquidator as to Debts and Claims. [Rule 22.] In Chancery. In the matter, &c. I, R. P. H., of &o., the official liquidator of the above-named Com- pany, make oath, and say as follows : — 1. I have in the papei- writing now produced and shown to me, and marked with the Ictti-r A., set forth a list of all the debts and claims the Third Schedule. — Forms. 347 particulars of which have been sent in to me by persons making claims upon, or claiming to be creditors of the said Company, pursuant to the advertisement issued in that behalf, dated the 186 ; and the names and addresses of the persons by whom such claims are made. 2. I have investigated the said debts and claims, and examined the same with the books and documents of the said Company, in order to ascertain, so far as I am able, which of such debts and claims are justly due from the said Company ; and I have, in the first part of the said list, set forth such of the said debts and claims, or parts thereof, as, in my opinion, are justly due from the said Company, and proper to be allowed without further evidence : and I have, in the sixth column of the said first part of the said list, set forth the amounts proper to be allowed in respect of such debts and claims ; and I believe that such amounts respectively are justly due and proper to be allowed ; and I have, in the seventh column of the said first part of the said list, stated my reasons for such belief. 3. I have, in the second part of the said Ust, set forth such of the said debts and claims as in my opinion ought to be proved by the respective creditors. Sworn, &c. No. 18. Exhibit referred to in Affidavit No. 17. A. In the matter, &c. List of debts and claims of which the particulars have been sent in to the official liquidator. This paper writing, marked A., was produced and shown to K. P. H., and is the same as is referred to in his affidavit, sworn before me this day of , 186 W. B., &c. First Part. — ^Debts and Claims proper to be allowed without further evidence. Serial No. Names of Creditors. Addresses and De- scriptions. Particulars of Debt or Claim. Amount claimed. Amount allowed. Beasons for Belief that Amounts are proper to be allowed. £ s. d. £ .. d. 348 The Companies Act, 1862. Second Part. — Debts and Claims which oaght to be proved by the Creditors. Serial No. Names of Creditors. Addresses and Descriptions. Particulars of Debt or Claim. Amount Claimed. £ s. d. No. 19. Notice to Creditor of Allowance of Debt. [Kule 23.] In the matter, &c. [Place and date.] Sir, — The debt claimed by you in this matter has been allowed by the judge at the sum of £ . [If part only allowed add, If you claim to have a larger sum allowed, you are hereby required to come in and prove the further amount claimed, ^c, as in next form.'] I am, &c.. To Mr. P. R. R. P. H., Official Liquidator. No. 20. Notice to Creditors to come in and prove their Debts. [Rule 24.] In the matter, &c. You are hereby required to come in and prove the debt claimed by you against the above-named Company, by filing your affidavit, and giving notice thereof to me, on or before the day of next ; and you are to attend by your solicitor at the chambers of the Master of the Rolls, in the RoUs-yard, Chancery-lane {or, of the Vice- ChanceUor , at No. , lincoln's-inn], in the county of Middlesex, on the day of 186 , at o'clock in the noon, being the time appointed for hearing and adjudicating upon the claim. Dated this day of 186 . R. P. H., Official Liquidator. To Mr. S. T. No. 21. AffidoL-it of Creditor in Proof of Debt. [Rule 24.] In Chancery. In the matter, &c. I, S. T., of &c., make oath, and say as follows : — 1. The above-named Company was, on the day of 186 , the date of the order for winding-up the same, and still is justly and truly indebted to me in the sum of £ for, &c. [Describe shortly the natiiir of the debt, and exhibit any security for it ; andin the case of a trade debt exhibit a bill ofparccl.i, and verify the reason able7iess of the charges, as in proving a debt in a suit.'] 2. I have not, nor hath, nor have any person" or persons by my order, or to my knowledge or belief, for my use received the said sum of £ or any part thereof, or any security or satisfaction for the same or any Third Schedule. — Forms. 349 part thereof [if any security add], except the said [describe the security], hereinljefore mentioned or referred to. Sworn, &c. No. 22. Certificate of Chief Clerk, as to Debts and Claims. [Rule 28.] In the matter, &c. In pursuance of the directions given to me by the Master of the EoUs [or, Vice-ChanceUor ], I hereby certify that the result of the adjudication upon debts and claims against the above-named Company, brought in pursuant to the advertisement issued in that behalf, dated the day of 186 , so far as such adjudication has up to the date of this certificate been proceeded with, is as follows : — The debts and claims which have been allowed are set forth in the first schedule hereto, and, with the interest thereon and costs mentioned in the said schedule, are due to the persons therein named, and amount altogether to £ I have in the first part of the said schedule set forth such of the said debts and claims as carry interest, and the interest thereon has been computed after the rate they respectively carry down to the date of this certificate. I have in the second part of the said schedvde set forth such of the said debts and claims as do not carry interest, and the interest thereon has been computed at the rate of -il. per cent, per annum, from the day of 186 , being the date of the said order to wind- up the Company, down to the date of this certificate. The claims set forth in the second schedule hereto have been brought in by the persons therein named, and have been disallowed. The evidence produced, &c. The First Schedule above referred to. First Part. — ^Debts and Claims which carry interest. No. Names of Oreditors. Addresses and Descriptions. Particulars of Debt. Total due. 1. JL. 29 -street London, Stationer Principal Interest at £ per cent, per annum, (less Property Tax) from ' 186 to the date of this Certificate. Costs of Proof On Bill of Ex- change, dated, &c. £ £ £ £ s. d. Total first Part. £ 350 The Oom/panies Act, 1862. Second Part. — Debts and Claims which do not carry interest, No. Names of Oreditore. Addresses and Descriptions. Particulars of Debt. Interest on Principal (less Pro- perty Tax). Total due. 40 W. P. 16 -street, London. Coal Merchant Goods sold £ ». d. £ <,. d. Principal £50 2 S 54 Costs of Proof... 2 Total Totals £ Add total first and seco first Part. £ nd Parts. £ The Second Schedule above referred to. No. Names of Creditors. Addresses and Descriptions. Particulars of Claim. Amount Claimed. £ s. d. Approved the day of Bated this ,186 .} day of 186 . G. H., Chief Clerk. No. 23. Notice to Creditor to attend to receive Debt. [Rule 28.] In the matter, &c. Sir, Upon application at my office, No. -street, Middlesex, on or after the instant, between the hours of ten and four o'clock, you may receive a cheque for the amount of your debt, allowed in this matter as under : — Principal ... ... ... ... £ Interest £ Costs of proof £ Totiil £ Third Sahedule. — Forms. 351 If you cannot attend personally, the cheque will be delivered to your order, upon your filling up and signing the subjoined form. The bills or securities (if any) held by you must be produced at the time of such application. Dated this day of 186 . I am, &c., R. P. H., Official Liquidator. To Mr. S. T. [Form of Order. '\ Sir, Please to deliver to W. E. the cheque for £ referred to in the above letter as payable to me. S. T., Creditor. To Mr. E. P. H., Official Liquidator i Company. • of the \ No. 24. Affidavit in Support of List of Contributories. [Rule 29.] In Chancery. In the matter, &c. I, E. P. H., of &c., the official liqiddator of the above-named Com- pany, make oath, and say, as follovs : — 1. The paper writing now produced and shown to me, and marked with the letter A., contains a list of the contributories of the said Com- pany, made out by me from the books and papers of the said Company, together with their respective addresses, and the number of shares [or, extent of interest], to be attributed to each ; and such list is, to the best of my knowledge, information, and belief, a true and accurate list of the contributories of the said Company, so far as I have been able to make out and ascertain the same. 2. I have, in the first part of the said list marked A., distinguished the persons who are contributories in their own right. 3. I have, in the second part of the said list marked A., distinguished the persons who are contributories as being representatives of, or being liable to the debts of others. Sworn, &c. No. 25. List of Contributories referred to in, Form No. 24. A. In the matter, &c. This list of contributories marked A. was produced and shown to E. P. H., and is the same list of contributories as is referred to in his affidavit, sworn before me this day of 186 W. B., &c. 352 The Oompawies Act, 1862. First Part. — Contributories in their own right. Serial No. Name. Address. Description. In what Character included. Number of Shares [or, Extent of Interest]. Second Part.- -Contributories as being representatives of, or liable to the debts of others. Serial No. Name. Address. Description. In what Character included. Number of Shares [or, Extent of Interest]. No. 26. Notice to Contributories of Appointment to settle List of Contributories. [Rule 30.] In the matter, &c. The Master of the RoUs [or, Vice-Chancellor ] has appointed the day of 186 , at of the clock in the noon at his chambers, in the Rolls-yard, Chancery-lane [or, at No. , Lincoln's-uin], in the coimty of Middlesex, to settle the list of the contributories of the above-named Company, made out and left at the chambers of the said judge by the official liquidator of the said Company, and you are included in such list in the character, and for the number of shares {or, extent of interest] stated below; and if no sufficient cause is shown by you to the contrary at the time and place aforesaid, the list will be setued by the said judge, including you therein. Dated this day of 186 To Mr. A. B. [and to Mr. C. D.,\ his solicitor]. > R. V. II., Official Liquidator. Third Schedule. — Forms. 353 No. on List. Name. Address. Description. In what Character included. Number of Shares [oi\ Extent of Interest]. No. 27. Affidavit of Service of Notice. [Rule 30.] In Chancery. In the matter, &c. I, W. S., of &c., clerk to Messrs. C. and D., of &c., the solicitors of the official liquidator of the above-named Company, make oath, and say as follows : — 1. The first six columns of the schedule now produced and shown to me, and marked with the letter A., contain a true copy of the list of contributories of the said Company, made out and left at the chambers of the Master of the KoUs [or, Vice-ChanceUor ], by the said official liquidator, on the day of 186 , and now on the file of proceedings of the said Company, as I know from having, on the day of 186 , examined and compared the said schedule with the said list ; and I have, in the seventh column of the said schedule marked A., set forth the names and addresses of the solicitors who have entered appearances for any of the contributories named in the said list. 2. I did, on the day of 186 , in the manner herein- after mentioned, serve a true copy of the notice now produced and shown to me, and marked B., upon each of the respective persons whose names, addresses, and descriptions appear in the second, third, and fourth columns of the said schedule marked A., except that in the tabular form at the foot of such copies respectively I inserted the number on list, name, address, description, in what character included, and number of shares [^or, extent of interest] of the person on whom such copy of the said notice was served, in the same words and figures as the same particulars are set forth in the said schedule marked A. 3. I served the said respective copies of the said notice, by putting such copies respectively, duly addressed to such persons respectively or their solicitors, according to their respective names and addresses appearing in the said schedule marked A., and, with the proper postage stamps affixed thereto as prepaid letters, into the post-office receiving house, No. in -street, in the county of , between the hours of and of the clock in the noon of the said day of Sworn, &c. 354 The Oompcmies Act, 1862. No. 28. The Schedule referred to in Form No. 27; A. In the matter, &c. This schedule marked A. was produced and shown to W. S., and is the same schedule as is referred to in his affidavit, sworn before me, this day of , 186 . W. B., &c. 1. 2. 3. 4. 5. 6. 7. Names and Addresses ^ S £ M-t of Solicitors who have 1^ . a O ^Ti entered appearances, a o a to % gl and been served with a copy of the notice a> 1 "5 «1 feW^ referred to in the g <1 P ■a. 3 Affidavit of W. S., to a which this schedule is t2i IZi an exhibit No. 29. Supplemental Litt of Contributories, and Affidavit in Support. [Rule 29.] In Chancery. In the matter, &c. I, R. P. H., of &c., the official liquidator of the above-named Company, make oath, and say as follows : — 1. Since leaving at the chambers of the judge the list of the con- tributories in this matter, on the day of 186 , it has come to my knowledge that the several persons whose names are set forth iu the supplemental Ust of contributories now produced and shown to me, and marked with the letter B., ;u-o, or have been holders of shares in [or, members of] the said Company, and to the best of my judg- ment, information, and belief, sudi persons are contributories of the said Company. 2. The said supplemental Hst marked B. contains the names of such persons, together with' their rospoi-tive addresses, and the number of shares [or, extent of interest] to bo attributed to each ; and such list is, to the best of my knowledge, iiifox-mation, and belief, true and accurate. 3. I have, in the fust part of the said list marked B., distinguished such of the said persons as are contributories in their own right. 4. I have, in the second part of the said list marked B., distinguished such of the said persons as ivre contributories as being representatives of, or being liable to the debts of others. Sworn, &c. Third Schedule. — Forms. 355 No. 30. Supplemental List of .Contributories referred to in Form No. 29. B. In the matter, &c. This supplemental list of contributories, marked B., was produced and shown to R. P. H., and is the same supplemental list of contributories as is referred to in his affidavit, sworn before me this day of 186 . W. B., &c. Note. — The Supplemental List is to he made out in the sOme form as tlii Original List, Form No. 2.5. No. 31. Certificate of Chief Clerk of Settlement of the List of Contributories. [Rule 3l.] ' In the matter, &c. In pvu-suance of the directions giveu to me by the Master of the Rolls [or, Viee-GhanceUor ], I hereby certify that the result of the settlement of the list of contributories of the above-named Company, made out and left at the chambers of the said judge by the official liqui- dator of the said Company on the day of 186 , pur- suant to the above statute and the general order of this court in that behaU, so far as the said list has been settled up to the date of this certi- ficate, is as follows : — 1. The several persons whose names are set forth in the second columil of the first schedule hereto have been included in the said list of contributories as contributories of the said Company in respect of the number of shares [or, extent of interest] set opposite the names of such contributories respectively in the said schedule. I have, in the first part of the said schedule, distinguished such of the said several persons included in the said list, as are contributories in their own right. I have, in the second part of the said schedule, distinguished, such of the said several persons included in the said list as are contributories, as being representatives of, or being liable to the debts of others. 2. The several persons whose names are set forth in the second column of the second schedule hereto have been excluded from the said list of contributories. 3. I have, in the seventh column of the said first and second schedules, set forth opposite the name of each of the said several persons respec- tively, the date when such person was included in or excluded from the said hat of contributories. The evidence produced, &c. The First Schedule above eefeeeed to. First Part. — Contributories in their own right. Serial No. in List. Name. Address. Descrip- tion. In what Character included. Number of Shares [- 186 . chambers. ) In the matter, &c. Upon the application of the official liquidator of the above-named Company, and upon reading two orders, dated the day of , 186 , and the day of 186 , the chief clerk's certifi- cate, dated the day of , 186 , affidavit of the said official liquidator, filed 186 , and the exhibit marked A. therein referred to, and an affidavit of . filed 186 , it is ordered, that a call of pounds per share be made on all the contributories of the said Company [or, as the case may fte]. And it is ordered, that each such contributory do on or before the day of 186 , pay into the Bank of England, to the account of the official liquidator of the Company, the amount wliich will be due from him or her in respect of such call. No. 37. Notice to be nerotd irith the General Order for a Call. [Rule 34.1 In the matter. Sic. The aiuoujit due from you, A. B., in respect of the call made by the above [or, Avithin] order, is the sum of £ , which sum is to be paid by you into the Bank of England, to the account mentioned in the said order. You can pay tlu' same in person, or through a banker or other agent ; but this notice and copy order must be produced at the bank upon such payment, and the cashier of the bank will, upon receiving the same, deliver to you a certificate of the payment in, numbered , signed by the said cashier. In order to prevent proceedings being taken against you for non-payment, you must, unmediately upon such payment in, cause written notice of the payment and of the date thereof to be given Third Schedule. — Forms. 359 to me as the official liquidator of the said Compaliy, at my office, No. -street; in the county of Middlesex. Dated this day of 186 . R. P. H., Official Liquidator. To Mr. A. B. No. 38. Affidavit in Support of Application for Order for Payment of Call due from Contributor ten. [Rule 35.] In Chancery. In the matter, &o. I, R. P. H., of &o., the official hquidator of the above-named Com- pany, make oath, and say as follows : — 1. None of the contributories of the said Company whose names are set forth in the schedule hereunto annexed, marked A., have paid, or caused to be paid, the respective sums set opposite their respective names in the said schedule, and which sums axe the respective amounts now due from them respectively in respect of the call of £ per share, in pursuance of the order of the judge in that behalf, dated the day of , 186 . 2. The respective amounts or sums set opposite the names of such contributories respectively in such schedule, are the true amounts due and owing by such contributories respectively in respect of the said call. Sworn, &c. A. The Schedule above befeheed to. No. on List. Name. Address. Description. In what Character in- cluded. Amount due. £ s. d. Note. — In addition to the above affidavit, an affidavit of the service of the order and notice (Nos. 36 and 37) will be required. No. 39. Order for Payment of Call due from a Contnbutory. [Rule 35.] day, the 186 . In the matter, &o. day of The Master of the Rolls [or,'. Vice- Chancellor S at chambers. Upon the application of the official hquidator of the above-named Com- pany, and upon reading the order, dated the day of 186 , an affidavit of filed the day of 186 \ and an affidavit of the said official liquidator, filed the day of 186 , it is ordered, that C. D., of &c. [or E. F., of &c.. 360 The Gorrvpcmies Act, 1862. the legal personal representative of L. M., late of &c., deceased], one of the contributories of the said Company [or if against several cmtn- butories, the several persons named in the second column of the schedule to this order being respectively contributories of the said Company] do, on or before the day of 186 , or within four days after service of this order pay into the Bank of England, to the account of the official liquidator of the Company [or, to A. B., the official hquidator of the said Company at his oflBce No. -street, in the county of Middlesex], the sum of £ [if against a legal personal representative ad(f], out of the assets of the said L. M., deceased m his hands as such legal personal representative as aforesaid to be administered in a due course of administration, if the said E. F. has in his hands so much to be administered ; or, if against several contributories, the several sums of money set opposite to their respective names in the sixth column of the said schedule hereto], such sum [or, smns] being the amount [or, amounts] due from the said C. D. [or, L. M.] or, the said several persons respectively] in respect of the call of £ per share made by the said order dated the day of 186 . The Schedule referred to in the FOREGOING Order. No. on List. Name. Address. Description. In what Character in- cluded. Amount due £ s. d. N'ote. — The copy for service of the dboce order must be endorsed, as required by the 23»"d Consolidated Order, rule 10. No. 40. Notice to be endorsed on, or served u-ith, ecei-y Order directing Payment of Money into the Bank of England. [Rule 39.] You can make the payment directed by the within [or, above] order at the Bank of England in person, &c. [as in the Fonn No. 37]. R. P. H., OflBcial Liquidator. To Mr. No. 41. Ccrlifcate of Payment of Money into the Bank of England. . [Rule 89.] In the matter, &c. No. day of , 186 . I heri'by certify that C. D., of &c., has this day paid into the Bank of England the sum of , to be placed to the credit of the official llhird Schedule. — ^orms. 361 liqmdator of the Company, pursuant to an order dated the day of , 186 . For the Governor and Company of the Bank of England, H. M., Cashier. No. 42. Affidavit of Service of Order for Payment of Call. [Rule 35.] In Chancery. In the matter, &c. I, J. B., of &o., make oath, and say as follows : 1. I did, on the day of 186 , personally serve G. F., of , in the county of , &c., with an order made in this matter by his honour, the Master of the EoUs [or, Vice-Chancellor ], dated the . day of 186 , whereby it was ordered [set out the order in the past tense} by delivering to and leaving with the said G. F. at , in the county of , a true copy of the said order, and at the same time producing and showing unto him, the said G. F., the said original order duly entered. 2. There was endorsed on the said copy, when so served, the following words, that is to say, " If you, the within-named G. F., neglect to obey this order by the time therein hmited, you wUl be liable to be arrested under a writ of attachment issued out of the High Court of Chancery, or by the serjeant-at-arms attending the same court, ajad also be liable to have your estate sequestered for the purpose of compelling you to obey the same order." Sworn, &c. No. 43. Affidavit of Non-payment of Money by Order directed to be paid into the Bank of England. [Rule 40.] In Chancery. In the matter, &c. I, R. P. H., of &c., the official liquidator of the above-named Com- pany, make oath, and say as follows : 1. G. F., the person named in an order made in this matter by his honour the Master of the Rolls [or, Vice-Chancellor ], dated day of , 186 , has not paid into the Bank of England, to the account of the official Mquidator of the Company, the whole or any part of the sum of £ as by the said order directed. [Or, in case of several parties.'] 1. None of the several persons whose names and addresses are set forth in the schedule hereunder written, and who have respectively been duly served with orders made in this matter by his honour the Master of the RoUs [or, Vice-Chancellor ], of the respective dates set opposite to their respective names in the said schedule, have paid into the Bank of England to the account of the official liquidator of the Company, the whole or any part of the several sums of money set opposite to their respective names in the said schedule hereunder written, as by the said orders respectively directed. 2. I am enabled to depose to such non-payment, by reason of my 862 The Oompanies Act, 1862. having this day ascertained, by inquiry at the said bank, that such payrnent ^or, payments] has [or, have] not been made, and seen the certificate of payment in, numbered [or, several certificates of payment in, the numbers whereof respectively are set forth m the sixth column of the said schedule, opposite the names of the said respective persons, being certificates] furnished by me to the cashier of the said bank for deUvery to the said G. F. lor, several persons respectively] upon such payment [or, payments] being made, still in the hands of the cashier of the said bank. No notice [or, notices] of such payment [or, payments] having been made has [or, have] been given to me by the said G. F. \_or, several persons respectively]. Sworn, &c. The Schedule above referred to. Name. Address. Descrip- tion. Amonnt. Date of Balance Order. Number of Certificate. £ s. d. No. 44. Renui'st to invest Cash in Government Stock or Exchequer Bills. [Rule 43.] In the matter, &c. To the Governor and Company of the Bank of England. Gentlemen, It appearing that the sum of £ cash is standing to the credit of the account of the official liquidator of the above-named Company, you are hereby requested to invest the sum of £ , part thereof, m the pvirchase of Bank 3^. per Cent. Annuities [or Reduced 8Z. per Cent. Annuities, or, New 3/. per Cent. Annuities, or. New %l. 10s. per Cent. Annuities] in the name of R. P. H., of &c., the official Uquidator of the said Company, [or, in the purchase of exchequer bills, and to deposit such exchequer bills in the Bank of England, in the name and on behalf of the said official liquidator.] The said annuities [or, exchequer bills] are not to be sold, transferred, or otherwise dealt with, except upon a direction for that purpose signed by the official liquidator of the said Company, and countersigned by the chief clerk of the Master of the Rolls [or, \'ico-Chancellor ], or under an order to be made by the said judge. Dated this day of , 186 . I (tin, gentlemen, Your most obedient servant, R. P. H., Counteisignoil, Official Liquidator. G. I-I., t'hiof Clerk of the Master of the Rolls [or, Vice-Chancellor J. Third'^SchedMle. — Forms. 863 No. 45. Notice [or Advertisement] of Meeting of Creditors or Contribiitories. [Rules 45, 46.] In the matter, &c. Notice is hereby given that the Master of the Rolls [or, Vice- ChanoeUor ] has directed a meetiog of the creditors [or, con- tributories] of the above-named Company to be smnmoned pursuant to the above statute, for the purpose of ascertaining their wishes as to [state the ohject for tohich meetlncj called^ unless notice is by advertisement, in which case say, certain matters relating to the winding-up of the said Company,] and that such meeting will be held on day, the day of 186 , at o'clock in the noon, at in the county of , at which time and place all the creditors [or contri- butories] of the said Company are requested to attend. [The said judge has appointed H. T., of &c., to act as chairman of such meeting.] Dated this day 186 . R. P. H., Official Liquidator. No. 46. Appointment of Proxy to vote at Meeting of Creditors or Contributories. [Rule 46.] In the matter, &c. I, W. S., of in the county of being a creditor [or, contributory] of the above-named Company, hereby appoint of as my proxy to vote for me, and on my behalf, at the meeting of the creditors [or, contributories] of the said Company, summoned by direction of the Master of the Rolls [or, Vice-Chancellor ], to be held on the day of and at any adjournment thereof. As witness my hand this day of 186 . W. S. Signed by the said W. S.> in the presence of ) J. M., of &c. No. 47. Memorandum of Appointment of a Person to act as Chairman at Meeting of Creditors or Contributories. [Rule 47.] In the matter, &c. The Master of the RoUs [or, Vice-Chancellor ] has appointed Mr. H. T., of &c., one of the creditors [or, contributories] of the above-named Company, to act as chairman of a meeting of the creditors [or, contributories] of the said Company, summoned by direction of the said judge, pursuant to the above statute, to be held on day, the day of , 186 , at o'clock, in the noon, at , in the county of , and to report the result of such meeting to the said judge. The said meeting is summoned for the purpose of ascertaining the wishes of the creditors [or, contributories] of the said Company as to 364 The Oompcmies Act, 1862. \_Ktate the object for which meetimj called] ; and at such meeting the votes of the creditors [or, contributories] may be given either personally or by proxy. Dated this day of 186 . 'CMef Clerk. No. 48. Chairman's Report of Result of Meeting of Creditors or Contributories. [Rules 45, 46, 47.] In the matter, &c. I, H. T., the person appointed by the Master of the Rolls [or, Vice- chancellor ] to act as chairman of a meeting of the creditors, [or, contributories] of the above-named Company, summoned by advertisement [or, notice], dated the day of 186 , and held on the day of 186 , at in the county ofe„ , do hereby report to the said judge the result of such m ting as follows : — The said meeting was attended, either personally or by proxy, by creditors to whom debts against the said Company have been allowed, amounting in the whole to the value of £ [or, by contributories, holding in the whole shares in the said Company, and entitled respectively by the regulations of the Company, to the number of votes hereinafter mentioned]. The question submitted to the said meeting was, whether the creditors [or, contributories] of the said Company approved of the proposal of the official liquidator of the said Company, that, &c. [as the case may be], and wished that such proposal should be adopted and carried into effect. The said meeting was unanimously of opinion that the said proposal should [or, should not] be adopted and carried into effect, [or. The result of the voting upon such question was as follows : — The undermentioned creditors [or, contributories] voted in favour of the said proposal being adopted and carried into effect : — Name of Creditor [or Contributory]. Address. Value of Debt [or. Number of Shares]. Number of Votes con- ferred ott each Contributory by the Regu- lations of the Company. Third Schedule. — Forms. 365 The imdermentioned creditors lor, contributories] voted against the said proposal beiig adopted and carried into effect : — Name of Creditor [or, Contributory]. Address. Value of Debt [o?', Number of Shares]. Number of Votes con- ferred on each Contributory by the Eega- lations of the Company. Dated this day of 186 . (Signed) H. T., Chairman. No. 49. Memorandum, of Sanction of Judge to accepting Bill of Exchange. [Rule 48.] In the matter, &c. The Master of the Rolls [or, Vice-ChanceUor ], has sanctioned the acceptance of this bUl of exchange by the official liquidator on behalf of the said Company. P XT " Chief Clerk. No. 50. Memorandum of Agreement of Compromise with a Contributory. [Rule 49.] In the matter, &c. Memorandum of agreement entered into this day of 186 , between R. P. H., of &c., the official liquidator of the above- named Company of the one part, and S. B., of &c., one of the contribu- tories of the said Company, of the other part. Whereas the said S. B. has been settled on the list of contributories of the said Company as a contributory in respect of shares in the said Company, and -whereas, by an order made by the Master of the RoUs [or, Vice-Chanceller ], dated the day of , 186 , a call of £ per share was made on all the contributories of the said Company, and there is now due from the said S. B. to the said Company the sum of £ in respect of the said call. And whereas the said S. B. has proposed to pay to the said official liquidator the sum of £ by way of compromise, and in satisfaction and discharge of the said sum of £ , and of all liabihty whatsoever, as a contributory of the said Company. And whereas the said official liquidator, having investigated the affairs of the said S. B., and believing that such compromise -mil be beneficial to the said Company, hath, in exercise of the power for that purpose given to him by the above statute, 366 The Companies Act, 1862. agreed to accept the same, subject to the sanction of the said judge and to the conditions and agreements hereinafter contained. Now it is hereby agreed by and between the said parties hereto : 1st. That the said official Uquidator shall, before the day of next, apply to the said judge at chambers to sanction this agreement of compromise. 2nd. That upon this agreement being sanctioned by the said judge the said S. B. shall, within days next after such sanction, pay to the said official liquidator the said sum of £ , and when thereto required, shall do and execute all such acts and deeds as may be neces- sary for transferring, or surrendering and releasing to the said official liquidator on behalf of the said Company, or in such manner as the said judge may direct, the said shares held by the said S. B., in the said Company, and all claim and demand whatsoever which the said S. B. has, or may have, against the Company in respect of the said shares, or the distribution of the assets of the said Company, or otherwise howsoever. 3rd. That the said sum of £ , and the transfer or surrender and release of the said shares and interest of the said S. B., as aforesaid, shall be accepted by the said official hquidator as, and be deemed and taken to give to the said S. B. a full and complete discharge from all calls and liabilities, claims and demands whatsoever, which the said Company, or the official liquidator thereof now has or may hereafter have, or be entitled to against the said S. B., in respect of his being or having been the holder of the said shares, or otherwise, as a contributory of the said Company. 4th. That in case this agreement shall not be sanctioned by the said judge it shall cease and determine, and the said official Uquidator and the said S. B. shall be remitted to their original rights with respect to each other, as if this agreement had not been entered into. 5th. That in case this agreement shall be sanctioned by the said judge, and the said S. B. shall not in all respects perform the same on his part, the official liquidator shall be at liberty, with the sanction of the said judge, and without notice to the said S. B., to enforce the performance thereof, or, with the like sanction, to give notice to the said S. B. that he abandons this agreement, whereupon the same shall cease and deter- mine, and the said official Hquidator shall be entitled to proceed against the said S. B., to enforce payment of the said sum of £ or so much thereof as shall then remain due and unpaid, as if this agreement had not been entered into. R. P. H., Official Liquidator. S. B. Witness to the signatures of) the said B. P. H. and S. B. >- C. D., of &c. ) No. 51. Hfemoraiidum of Sanction of Judge to Agreement of Compromise. [Rule 49.] In the matter, &c. The Master of the Rolls [m-, A'ice-Chancellor ] has sanctioned this agreeiiiont of compromise. C TT Chief Clerk. Third Schedule. — Forms, 367 No. 52. Order or Memorandum of the Sanction of the Judge for certain Acts to be done by the Official Liquidator. [Rule 60.] The Master of the Rolls [or, ) Vice- Chancellor ] > day of 186 . at chambers. 3 In the matter, &c. The Master of the Rolls [or, Vice-Chancellor J doth hereby sanction [or, has sanctioned] the following proceedings being taken [or, acts being done] by the official liquidator of the above-named Company, namely [state the proceedings to be taken or acts to be done as], the bring- ing [or, instituting] and prosecuting an action at law [or, suit in equity], in the name and on behajf of the said Company, against [or, defending an action at law [or, suit in equity! brought [or, instituted] against the said Company by K. M., of &c., to recover a debt or sum of £ alleged to be due from [or, to] the said K. M. to [or, from] the said Company, &c. P TT ' Ciuef Clerk. No. 53. Appearance Book. [Rule 62.] In the matter, &c. Appearance Book. Date when Ap- pearance entered. Party's Name. Whether Creditor or Con- tributory. If he appears in Person, his Address for Service. If he appears by a Solicitor, his Solicitor's Name. Solicitor's Address. Amount of Debt [or. Number of Shares 3. No. 54. Summons for Persons to attend at Chambers to be examined. [25&26Vict.c. 89, s. 115.] In Chancery. In the matter, &c. A. B., of &c., and E. F., of &c., are hereby severally sunmioned to attend at the chainbers of the Master of the Rolls [or, Vice-Chan- ceUor ], in the Rolls-yard, Chancery-lane [or, No. Lincoln's-inn], in the county of Middlesex, on day of 186 , at of the clock in the noon to be examined on the part of the official liquidator [07-, of W. D.,of&c.], for the purpose of pro- ceedings directed by the Master of the Rolls [or, the said Vice-Chan- cellor] to be taken before me in the above matter. [And the said A. B. is hereby required to bring with him and produce, at the time and place aforesaid, a certain indenture [describe documents^ and all other books 368 The Oompcmiss Act, 1862. papers, deeds, writings, and other documents in his custody or power in anywise relating to the above-named Company]. Dated this day of 186 . Chief Clerk. This summons was taken out by Messrs. C. and D., of , in the county of , solicitors for the official liquidator [or, for the said W. D.] No. 55. Certificate of the Company being completely wound-up and of the Official Liquidator having passed las final Account. [Rule 66.] In the matter, &c. In pursuance of the directions given to me by the Master of the Rolls [or, Vice-Chancellor J, I hereby certify that R. P. H., the official liquidator of the above-named Company, has passed his final account as such official liquidator, and that the balance of £ thereby cer- tified to be due to [or, from] the said official liquidator has been paid in the manner directed by the order dated the day of , 186 . And that the affairs of the said Company have been completely wound-up. The evidence produced, &c. Dated this day of 186 . G. H., Approved the ■( Chief Clerk, day of , 186 .| No. 56. Order to dissolve the Company. [Rule 66.] The Master of the Rolls [or,) , the day Vice-chancellor ]>- of 186 at chambers. ) In the matter, &c. Upon the application of the official liquidator of the above-named Company, and upon reading an order dated the day of , and the chief clerk's certificate, dated the day of , whereby it appears that the affairs of the said Company have been com- pletely wound-up, and that the balance of £■ , due from [or, to] the official liquidator, h;»a been paid in manner directed by the said order, it is ordered that the said Company be dissolved, as from tills day of , 186 , and that the recognisance dated the day of , 186 , entered into by the said official liquidator, together with W. B. andT. P., his sureties, be vacated. Wkstbuey, C. John Romilly, M. R. KlCHD. T. KiNDKRSLEY, V. C. John Stuart, V. C. W. P. WooP, V. C. 369 GBNBEAL RULES AND ORDERS POE KEGULATING THE PEAOTIOE, EEES, AND COSTS ON APPEALS LORD WARDEN OP THE STANNARIES FBOM THE COTJET OF THE VICE-WAEDEN. The Most Noble Henry Pelham, Duke of Newcastle, Warden of the Stannaries of Cornwall and Devon, and Edward Smirke, Esquire, Vice-Warden of tlie same Stan- naries, witi. the consent and approval of the Right Honor- able Richard Baron Westburt, Lord High Chancellor of Great Britain ; of the Right Honorable Sir George James Turner, Ejiight, one of the Lords Justices of. the Court of Appeal in Chancery; and of the Right Honorable Sir William: Brle, Knight, Lord Chief Justice of the Court of Common Pleas, testified by their several signatures sub- scribed hereto, do hereby, in pursuance and execution of the powers and authorities in this behalf given to them by the Act of the 18th Victoria, chapter 32, and by " The Companies Act, 1862," and of all other powers and authorities enabling them in this behalf — order and direct that the several rules, orders and regulations hereinafter set forth (together with the schedule of forms and table of fees thereto annexed) shall henceforth be the Rules and Orders for regulating the practice, fees, and costs on all appeals to the Lord Warden of the said Stannaries, and also for regulating so much of the practice, fees, and costs as relates to proceedings inci- dental to such appeals, had or taken in the court of the vice-warden of the Stannaries — that is to say : — I. Any party desiring to appeal to the Lord Warden of the Stannaries from a decree, order, judgment or decision of the vice-warden, is to notify his intention to prosecute such £ippeal by a notice in writing to the registrar of the court 370 The Companies Act, 1862. of the vice-warden, witHn the times following— ;-that is to say :— In the case of an order or decision made or given in the matter of the winding-up of a Company under " The Com- panies Act, 1862," within three weeks after the order com- plained of has been made, unless the time be extended by the Court of Appeal ; and in all other cases, within thirty days after the day on which the vice-warden shall, in open court, have made the order or pronounced the judgment appealed from, or on which the registrar shall have notified such judgment to the parties, their solicitors, attorneys or agents, in the ordinary course of procedure of the court of the vice- warden. Such notices may be in the Forms A. or B. in the schedule, or to the same effect. II. The bond to the registrar entered into by the appellant, under the provisions of the act 18th Vict. c. 32, s. 26, is to be in the Form C. in the schedule annexed. The time pre- fixed therein is to be named by the vice-warden on the application of the registrar to him. III. The appeal is to be by petition signed by the appeUant, his attorney, solicitor, or agent, and addressed to the Lord Warden. In it only the decree, order, judgment, or deci- sion of the court below, complained of, is to be set forth, together with the particular causes or grounds of appeal rehed upon by the appellant without any other or further recitals, details, or allegations than are reasonably necessary to show the general nature of the cause or matter in the court below in which the decree, &c., was made. Forms of petition will be found in the schedule annexed — letters D. andE. IV. The petition is to be signed by some one counsel who was engaged in the cause or matter in the court below, or has advised on the appeal, who shall also state in writing that there is, in his opinion, reasonable ground of appeal. V. If the vice-warden shall think fit to indorse on the peti- tion that the decision of the Court of Appeal on the causes or grounds of appeal relied upon in it, or any of them, is Rules for regulating Appeals to the Lord Warden, Sfc. 371 desirable for the general guidance of the court below in like CaaeSj the signature of counsel may be dispensed with. VI. A notice of appeal and a copy of the petition of appeal shall, before it is lodged, be served on the party or parties in whose favour the decree, order, judgment, or decision appealed from, has been made or pronounced, or on his or their sohcitors, attorneys, or agents. The appeal is to be lodged with the secretary of the Lord Warden at the oflB.ce of the Duchy of Cornwall in London, during oflBce hours, on or before the dayjprefixed. VII. At the time of lodging the appeal, the appellant is to leave with the secretary an affidavit, that notice of appeal and a copy of the petition of appeal have been served on the party or parties in whose favour the decree, order, judg- ment or decision was made or pronounced, or on his or their solicitors, attorneys or agents ; and must also then produce a certificate of the registrar of the court below that all neces- sary conditions and provisions as to notice of appeal, secu- rity by bond, the appealable value or amount of the matter in question, or otherwise, have been satisfied and comphed with. And the registrar may, in and by such certificate, either certify such satisfaction and compliance generally, or in case of reasonable doubt, may certify specially such facts as may enable the Court of Appeal to judge on the hearing of the appeal, whether such conditions and provisions have, in point of law, been sufficiently satisfied and complied with. VIII. Upon the receipt and allowance of the petition of appeal by the Lord Warden, the secretary of the Lord Warden is to obtain his indorsement appointing a day for hearing it, or (in the cases within "The Companies Act, 1862") remit- ting the same to be heard and determined by the Court of Appeal in Chancery, or remitting it under the 18th Vict. c. 32, s. 26, to the Judicial Committee of the Privy Council, as the Lord Warden may think fit. IX. After such appointment or remittance, the secretary of the Lord Warden is to inform the registrar by notice in 372 The Companies Act, 1862. writing of tlie day so appointed, or of tlie remittance so piade, and tlie vice-warden is without delay to cause to be transmitted to the Court of Appeal such of the records, memoranda, and proceedings in his court in the cause or matter in question, and also such documents and papers therein in the custody of the court, as shall appear to the vice-warden pertinent and material for the determination of the appeal, iind also such other records, memoranda, pro- ceedings, documents, and papers (if any) as the Court of Appeal, or the parties appellant or respondent, shall or may require for production at the hearing of the appeal, subject always to the award and order of the Court of Appeal as to the payment of any costs occasioned by the transmission or production of any such records, &c., as may have been trans- mitted or produced at the special request of the said parties to the appeal or of either of them. The vice-warden shall also certify to the Court of Appeal all evidence pertinent to the matters of appeal, whether con- tained in written affidavits, depositions, or examinations used or referred to on the trial or hearing in the court below in the cause or matter there pending ; and also all oral evidence taken in due course of practice either before the registrar of the court below or before the vice-warden in the same cause or matter, and appearing on the notes of the vice-warden, who shall also send a copy of the written judgment (if any) which may have been pronounced upon the matters under appeal. XI. The parties to the appeal are to serve such notices and apply for such orders, either upon motion or petition to the Court of Appeal, as may be necessary for procuring the pro- duction at the hearing of such documents and papers as they may respectively desire to produce or give in evidence, and the attendance of any witnesses whom the Court of Appeal may, in its discretion, think fit to examine. XII. The order or judgment of the Lord Warden or other Court of Appeal is to be remitted or notified to the vice-warden, to be by him carried into effect and enforced, if need be, ac- cording to the course and practice of his court ; and the said order or judgment may, for that purpose, be made an order Rules far regulating Appeals to the Lord Warden, ^c. 373 or judgment of tlie court below, aud recorded, and, if need be, enforced accordingly. XIII. If neither party to the appeal shall appear on the appeal being called on for hearing, it will be dismissed without costs on either side. If the appellant alone makes default, the appeal will be dismissed with costs. If the appellant alone appears, the heai'ing is to proceed ex parte, and the court will make such order as shall, under the circumstances, appear to it to be just. And where, upon the hearing of any appeal, it appears that the same cannot conveniently proceed by reason of the solicitor for any party having neglected to attend personally, or by some proper person on his behalf, or having omitted to dehver any paper necessary for the use of the Court of Appeal, and which, according to its practice, ought to have been delivered, such sohcitor shall personally pay to all or any of the parties such costs as such court shall think fit to award. XIV. In all proceedings in any appeal from a decree, order, judgment, or decision of the vice-warden, matters of mere form may be disregarded or amended, if need be, by the Court of Appeal, and all questions of costs touching the appeal, including the costs of transmitting or producing documents in the custody of the court below, will be in the discretion of the Court of Appeal, and may be referred for taxation either to the registrar of the court of the vice- warden, or to a taxing officer of the Court of Appeal. XV. The petition and the decree, order, judgment and other process or proceedings in or of the Court of Appeal, so far as any are made, issued or taken by or before the Lord Warden, are to be recorded in books kept in the office of the Duchy of Cornwall, or some other proper place of deposit assigned by the Lord Warden. The following schedule of forms and annexed table of fees, are to be used and taken in proceedings on and incidental to appeals to the Lord Warden, and no other fees are to be taken thereon. 374 The Oompawies Act, 1862. A. Form of Notice of Appeal in a Cause. In the Court of the Vice- Warden of the Stannaries. Stannaries of Cornwall lor, Devon]. Between A. B. Plaintiff, and C. D. E. F., &c. Defendants. To W. M., Esq., registrar of the above-named cotirt. I, A. B. [plaintiff or defendant], in the above caiise, hereby give you notice that it is my intention to prosecute an appeal by petition to the Lord "Warden of the Stannaries from the decree [order, judgment or decision] of the court of the vice-warden in this cause made [or, pro- nounced] on the day of last past, and I hereby notify to you that I am ready and offer to give you such security as is required by the " Act to amend and extend the Jurisdiction of the Stannary Court, 18 Vict. c. S2. A. B., plaintiff in the above cause. X. Y., the soKcitor lor attorney] of the said A. B. [The above notice tHU sei-ve for a cause either on the equity or the common law side of the court.] B. Form of Notice of Appeal in the Matter of winding-up under " The Companies Act, 1862." In the court, &c. [as above. A.] Stannaries of Cornwall [or, Devon]. In the matter of " The Companies Act, 1862," and In the matter of the Mining Company. To W. M., Esq., registrar, &c. [as above.] I, A. B., being [or, claiming to be] a creditor of the above company, hereby give you notice that it is my intention to prosecute aa appeal by petition to the Lord Warden, &c., from the order [or, decision] of the court of the vice-warden, made [or, pronounced] in this matter on the day of last past, whereby my claim as such creditor was excluded from proof ; and I hereby notify that I am ready, &c. [as in Form A.] Signed, &c. [In like manner a person inserted on the list of contiibutories may notify his intention to appeal. So an official liquidator, or the contributory or creditor who presented the petition to wind-up, or other person having the conduct of the proceedings under the order to wind-up where no liquidator has been appointed, or any other person competent to appeal.] C. Form of Bond to the Registrar for Prosecution of an Appeal, §-c. [Heading in the cause or matter as the case may be as above, A. and B.] Know all men by these presents that I, A. B., of , am held and firmly bound to W. M., Esq., registrar of the court of the vice- warden of the Stannaries, in the sum of , of lawful money Rules for regulating Appeals to the Lord Warden, Sfc. 375 of Great Britain, to be paid to the said W. M., or his certain attorneys, executors, administrators, or assigns ; for which payment I bind myself, my heirs, executors, and administrators, by these presents. Sealed with my seal. Dated in the year Whereas the said A. B. did, on , give to the said registrar a notice in writing of his intention to prosecute an appeal to the Lord Warden of the Stannaries from a certain decree [order, judgment, or, decision] of the court of the vice-warden of the Stannaries, in a cause of [or, a matter of ], made [or, pronounced] on the day of , and did then offer to give such further security by bond as is required by the Act of Parliament in that behalf ; and whereas, by an order made on the day of , the said vice-warden has prefixed the day of , in, &c., as the day on or before which the said A. B. is to lodge his petition of appeal with the secretary of the Lord Warden, and proceed to prosecute the same in due course of law : Now the condition of the above bond is such that if the above A. B. shall lodge his petition of appeal with the secretary of the Lord Warden on or before the day of instant, and comply with all needful conditions incidental to such petition and appeal and the lodging thereof, and shall thereupon proceed to prosecute the same in due course of law, and according to the practice of the Court of Appeal, whether the same be heard and determined by the court of the Lord Warden, or by such other court of appeal to which the same may be lawfully remitted by the Lord Warden, with all reasonable expedition, and shall and will abide by and perform the final order and award of the Court of Appeal, made upon such petition and appeal, then the said bond is to be void ; otherwise to remain in full force and effect. Signed and delivered by the above-named A. B., in the presence of C. B. (his attorney or solicitor). D. Fvrm of Petition of Appeal, in ordinary causes, on the equity or common law side of the Court below. In the Court of Appeal of the Lord Warden of the Stannaries. Stannaries of Cornwall [or, Devon]. Between A. B. Plaintiff, and C. D. Defendant. To the Most Noble Henry Pelham, Duke of Newcastle, Lord Warden of the Stannaries. The humble petition and appeal of the above- named plaintiff [or, defendant]. Sheweth, — That A. B., the plaintiff in the above cause, being the purser of a certain mining Company called situate within the Stannaries of Cornwall [or, Devon], filed his customary petition on the equity side of the court of the vice- warden of the Stannaries on the day of , against the said C. D., for payment of the contribution of the said CD. towards the expenses of working the said mine in which the said CD. was then an adventurer or shareholder. 376 The Gompames Act, 1862. That such proceedings were, thereupon had and taken that the vice- warden on the day of made the order foUowing m the said cause [set out the order complained of 2- j • j ■ j That your petitioner is aggrieved by the said order, and is advised that the same is erroneous and contrary to law ; and he sets forth and shows the fonowing particular causes or grounds of appeal from the said order, that is to say — [Here specify the causes partieularly relied on.] Your petitioner prays that your grace will be pleased to appoint a day and place for hearing this petition, and direct that service of notice of such appointment on the soUcitor of [the respondenf] shaU be good service on \the respondent] and that your grace wiU be pleased on such hearing to reverse or vary the said order so complained of, and grant such other or further relief as to your grace shall seem fit. Signed (the appellant). [In like manner a party may appeal from the judgment of the covirt below in a cause on the common law Bide of the court, or from a refusal to grant a new trial, or for misdirection, or the reception or rejection of evidence, &c.] E. Petition in a Matter ofioinding-up tender " The Companies Act, 1862." [Heading of petition aa above, D.] In the court, &c. Stannaries of Cornwall [or, Devon]. In the matter of " The Companies Act, 1862," and In the matter of the Mining Company (Limited). To the Most Noble, &c. The humble petition and appeal of A. B. of Sheweth, — That on a petition presented to the vice- warden of the Stannaries by C. D., a eontiibutory and shareholder of and in the above Company, and by E. F., claimiag to be a creditor of the same Company, an order of the vice-warden was made on the day of to wind-up the said Company, being a Company duly registered under the act with limited Uability, withiu the jurisdiction of the court of the said vice-warden [or, being an unregistered Company, within the intent and meaning of " The Companies Act, 1862,'' Part VIII.] That upon making out and settling a Kst of the contributories of the said Company the petitioner was included iu the said Ust, and upon applying to the vice-warden to vary the said list by omitting your petitioner's name therefrom, tlie court decided that your petitioner's name had been rightly inserted in such list, and made the order follow- ing : [Insert the order ileclimng to vari/ the UkI.'] That yom- petitioner is aggrieved by the said order, and is advised that the retention of his name on the hst is contrary to law, and he seta forth and shows the following particular causes and grounds of appeal from the said order ; that is to say r — [Here set nut tlw causes ofappcnl relied upon, exempli gratia.'] That the petitioner had, before the order to wiad-up, bond fde trans- Rules jor regulating Appeals to the Lord Warden, Sfc, 377 ferred to a third person, or surrendered and relinquished to the Company, all his shares and interest therein ; and by reason thereof, and by the constitution of the Company, ceased to be contributory to the assets of the Company, or liable to creditors, &c. [Add other grounds, if amy, on which, in the opinion of the petitioner, his name ought not to have been included in the list of contributories.] SCHEDULE OP FEES PAYABLE ON APPEALS TO THE LORD WABDEN OP THE STAN- NAKIES TO BE PAID TO THE LORD WAEDEN'S SECRETABT. Fees payable on lodging the Petition of Appeal. £ s. d. For perusal, examination, and allowance of every petition of appeal and copy, and of the registrar's certificate and affi- davit of service of petition, and recording the appeal ... 2 2 For drawing order for appointment for hearing, or fiat remit- ting the appeal, and attendance on the Lord Warden there- with (to include thB fees for notices to the Registrar of the Stannaries Court and the parties appellant, and for trans- mission of papers in case of remittance of the appeal) ... 1 6 8 Fees payable in Case of the Appeal leing heard by the Lord Warden. Attending court on the' hearing, per diem Drawing minutes of order, per folio For each fair copy for parties, per f oho Attending settling (to include any adjourned appointment) ... Drawing and engrossing order, per foho Attending passing (to include any adjourned appointment) . . . Entering order, per folio Office copy for registrar of court below, or for the parties, per foUo 10 Note. — The above fees to be payable for attendances, &c., in respect of any interim order. 2 2 I 4 1 1 8 13 4 1 6 Fees for Searches, and for Inspection of and Attendances with Documents. Upon every application to inspect a record, and for inspecting same 2 Upon every application to inspect exhibits, or deposited docu- ments, if not more than one hour ...060 If more than one hour, per diem 10 Upon every application for the attendance of any officer other than the registrar of the court below, or his deputy in any court of law or equity, per diem, and for his attendance, besides reasonable and necessary expenses of the officer ... 1 378 The Companies Act, 1862. £ a. d. Attendance of the registrar of the court below, or his deputy, on the hearing, with or without original records or docu- ments in the custody of the court below when such attend- ance shall be required by the Court of Appeal, per diem (besides reasonable travelling and necessary expenses) ... 2 2 (Signed) Newcastle, Warden of the Stannaries. Edwaed Sjiieke, Vice-Warden. Signed, in testimony of consent and approval. Westburt, C. g. j. toenee, l. j. W. Eele, C. J. APPENDIX CONTAINING THE STATUTOET ENACTMENTS UNDEE WHICH THE FOEEGOING GENEEAL EULES AND OEDEES HAVE BEEN MADE. No. 1. " An Act to amend and extend the Jurisdiction of the Stannary Court," 18 Vict. c. 32.— [15th June 1855.] Sect. XXVI. Regulation of Appeals. The provisions contained in the act passed in the session of Parliament holden in the sixth and seventh years of the reign of King WiUiani the fourth, chapter one hundred and six, and in the act passed in the session of Parliament holden in the second and third years of the reign of Her present Majesty, chapter fifty-eight, touching appeals to the Lord Warden, shall be repealed, and henceforth from all decrees and orders of the vice-warden on the equity side of his court, and from all judg- ments of the vice- warden on the common law side thereof, there shall fie an appeal to the Lord Warden, who shall have power to affirm, vary, or reverse the decree, order, or judgment whoUy or in part, or to disrniss the appeal, or to direct a re-hearing or a new trial in the court below, and to make such order or orders touching the costs in the cause as to him shall seem fit ; and the decree, order, or judgment of the Lord Warden on such appeal shall be remitted to the vice-warden to be by him carried into effect and enforced, if need be, according to the co\irse and practice of the covu^; ; and upon hearing such appeal, it shall not be competent for the parties to produce fresh e^ddence in the cause, or to call upon the Lord Warden to hear any witnesses in the cause, unless he shall, in his discretion, think fit to do so ; but the decree, order, or judgment of the Lord Warden may proceed on the state of facts appear- ing on the notes of the trial below certified by the vice-warden, or agreed upon by the parties ; and the vice- warden shall certify such notes accordingly, and ti-ansmit to the Lord Warden a record of the proceed- ings in his coiu-t, and all documents and papera in the cause in the custody of the coittt; tuid the parties before the Lord Wai-den shall Rules for regulating Appeals to the Lord Warden, 8fc. 379 produce all the documents and papers produced on the trial below. On the hearing and decision of wie appeal, the Lord Warden shall be assisted by two or more assessors, who shall be members of the Judicial Committee of the Privy Council or judges of the High Court of Chan- cery or Courts of Common Law at Westminster ; and the decree, order, or judgment of the Lord Warden in the Court of Appeal so constituted, shall be subject to a final appeal to the Judicial Committee of the Privy Council, who shall have power to hear and determine the same. And it shall be lawful for the Lord Warden to remit a cause pending before Tiim on appeal at once for the determination of the said Judicial Committee, without pronouncing any previous judgment thereon. Provided that no appeal shall be allowed in any case where the debt or damages sought to be recovered shall not exceed twenty pounds, and where no question of jurisdiction or of the custom of mining or miners shall have arisen in the court below, nor shall any appeal operate to stay proceeding, orbe allowed, unless the party appellant shall notify in writing to the registrar, within thirty days after notice of the decree, order, or judgment appealed against his intention to prosecute an appeal, and shall then give or offer to give security by bond to the registrar, to prosecute the same within a time prefixed by the court, and to abide by and perform the final order and award of the Court of Appeal, which bond shall not require to be stamped. And it shall be lawful for the Lord Warden, with the approval of two or more members of the Judicial Committee of the Privy Council, or judges of the High Comrt of Chancery, or of the Superior Courts of common law, from time to time, to mate any general rules and orders for regulating the practice, fees, and costs on appeals pending before him, not inconsistent with the provisions of this act. No. 2. " An Act for the Incorporation, Regulation, and Winding-up of Trading Companies and other Associations (cited as ' The Companies Act, 1862')," 25 & 26 "Vict. cap. 89.— [7th August 1862]. Sect. CXXIV. (Page 212, ante.) 380 THE COMPANIES ACT, 1867 (30 & 31 Vict. cap. 131). An Act to amend " The Companies Act, 1862." — I20th August 1867.] Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assem- bled, and by the authority of the same, as follows : PEEUMnrAEY. 1 . Short title. — This act may be cited for all purposes as " The Companies Act, 1867." 2. Act to be construed as one with 25 Sr 26 Vict. c. 89. — The Companies Act, 1862, is hereinafter referred to as " the principal act ; " and the principal act and this act are herein- after distinguished as and may be cited for all purposes as " The Companies Acts, 1862 and 1867 ; " and this act shall, so far as is consistent with the tenor thereof, be construed as one with the principal act ; (a) and the expression " this act" in the principal act, and any expression referring to the principal act which occurs in any act or other document shall be construed to mean the priacipal act as amended by this act. (a) One with the. principal act.} — By this section the two acts are amalgamated and must be read together. 3. Gommencement of act. — This act shall come into force on the first day of September one thousand eight hundred and sixty-seven, which date is hereinafter referred to as the commencement of this act. UNLIMITED LIABILITY OP DIEECTORS. 4. Oompany may have directors with unlimited liability. — Where after the commencement of this act a Company is formed as a limited Company under the principal act, the liability of the directors or managers of such Company, (a) or the managing director, may, if so provided by' the Memorandum of Association, (6) be unlimited. Unlimited Liability of Directors. 381 (a) The liability of the directors or managers of such Company, ^•c.] — Tills and the four following sections introduce an entirely new principle into the law of limited Companies as existing in this country. The liability of the directors and managers may now be unlimited, while that of the members continues limited as heretofore. The principle is a most valuable one, and cannot fail to entitle those Companies that adopt it to the confidence of the public. However large may be the capital of a Company, however great its advantages, it is not likely to give profit to shareholders, or safety to creditors unless its affairs are directed with some of that care and prudence, that fore- sight and vigilant management which a man generally applies to his own business, but which is too often found wanting in the directors of Companies. If directors, however, were so bound up with a Company, that they must rise or fall with it, as a man in trade rises or falls by Ms own business, the public might pretty safely trust that such directors would find time to do a great deal more than merely pocket their fees. This principle, now for the first time adopted by our law, has long heen recognised by the law of France where associations constituted on this principle are known as Societe's en Commandite. In these associations the responsible members who undertake the management of the business, and whose liability is unlimited, are called " commandites," while the non-responsible members, liable only for the amount of their shares, are termed " commanditaires." The law with reference to these associations wiU be found in the " Code de Commerce," art. 23, et seq., art. 88, et seq. ; 4 Pardessus, Dr. Com. n. 1027 ; DaUoz, Diet. Societe Com- merciale, n. 166. Such associations also exist in the state of Louisiana, in America, where they are called partnerships in commendam. The law with refe- rence to them win be found in the civil code of Louisiana, art. 2810, et seq. (V) If so provided by the Memorandum of Association.l — Where a Company intends to make the liability of the directors or managers unlimited, its memorandum must contain an express statement to that effect. Companies already constituted are empowered by sect. 8, infra, to make the necessary alteration in the Memorandum of Association by special resolution. 5. Liability of director, past a/nd present, where liability is unlimited. — The following modifications shall be made in the thirty-eighth section of the principal act,{a) with respect to the contributions to be required in the event of the winding- up of a limited Company under the principal act^ from any director or manager whose liability is^ in pursuance of this actj unlimited : (1.) Subject to the provisions hereinafter contained, any such director or manager, whether past or present, shall, in addition to his liability (if any) to contribute as an ordinary member, be liable to contribute as if he were at the date of the commencement of such winding-up a member of an unlimited Company : (2.) No contribution required from any past director or 382 The GorrvpoMies Act, 1867. manager who has ceased to hold such office for a period of one year or upwards prior to the com- mencement of the winding-up shall exceed the amount (if any) which he is liable to contribute as an ordinary member of the Company : (3.) No contribution required from any past director or manager in respect of any debt or liability of the Company contracted after the time at which he ceased to hold such office shall exceed the amount (if any) which he is liable to contribute as an ordinary member of the Company : (4.) Subject to the provisions contained in the regulations of the Company no contribution required from any director or manager shall exceed the amount (if any) which he is liable to contribute as an ordinary mem- ber, unless the court deems it necessary (6) to require such contribution in order to satisfy the debts and liabilities of the Company, and the costs, charges, and expenses of the winding-up. (a) The thirty -eighth section of the principal actJ] — See p. 116, ante. (b) Unless the court deems it necessary."] — ^The unliimted liability here provided for will, of course, only come into operation in the event of a winding-up, and it may be presumed that, in the absence of any pro- visions to the contrary contained in the regulations of the Company, the court would not deem it necessary to enforce such unlimited liability, unless in the case of the contributions of the ordinary members proving insufficient. 6. Director with unlimited liability may have set-off as under— Sect. 101 of 25 Sf 26 Vict. c. 89.— In the event of the winding-up of any limited Company, the court, if it think fit, may make to any director or manager of such Company whose liability is unlimited the same allowance by way of set-off as under the one hundred and first section of the principal act, (a) it may make to a contributory where the Company is not limited. (a) The one hundred and frst section of the principal act.^ — See p. 199, ante. 7. Notice to he given to director on his election that his liability will he unl iinited . — In any limited Company in which, in pursuance of this act, the liability of a director or manager is unlimited, the directors or managers of the Company (if any), and the member who proposes any person for election or appointment to such office, shall add to such Unlimited Liability of Directors. 383 proposal a statement(a) that tlie liability of the person holding such office wiU be unlimited, and the promoters, directors, managers, and secretary (if any) of such Com- pany, or one of them, shall, before such person accepts such office or acts therein, give him notice in writing that his liability will be unlimited. If any director, manager, or proposer make default in adding such statement, (fe) or if any promoter, director, manager, or secretary make default in giving such notice, he shall be liable to a penalty not exceeding one hundred pounds, and shall also be liable for any damage which the person so elected or appointed may sustain from such default, but the liability of the person elected or appointed shall not be affected by such default. (a) Shall add to such proposal a statement, Sfc.l — The object of this section, no doubt, is to ensure as far as possible that no one shall be saddled with unlimited liability without his fuU knowledge and consent. (V) Make default in adding such statement.'] — If this provision means, as it appears to do, that each of the persons mentioned must repeat the statement, the sense or reason of the requirement is not very obvious. If the statement were once distinctly made as a matter of fact, one would think it ought to be sufficient. All useful purposes would be answered if the persons mentioned were to incur the penalties in case the required statement were not, as a matter of fact, once made. 8. Existing limited Company may, by special resolution, males liability of directors unlimited. — ^AJay limited Company under the principal act, whether formed before or after the commencement of this act, may, by a special resolution, if authorised so to do by its regulations, as originally framed or as altered by special resolution, (a) from time to time modify the conditions contained in its Memorandum of Association so far as to render unlimited the liability of its directors or managers, or of the managing director; and such special resolution shall be of the same validity as if it had been originally contained in the Memorandum of Association, and a copy thereof shall be embodied in or annexed to every copy of the Memorandum of Association which is issued after the passing of the resolution, (6) and any default in this respect shall be deemed to be a default in complying with the provisions of the fifty-fourth section of the principal act,(c) and shall be punished accordingly. (o) Altered by special resolution.'] — See p. 130, ante. (V) Issued after tJie passing of the resolution.] — See sect. 19 of the principal act. (c) Fifty-fourth section of the principal act.] — See p. 133, ante. 384 The Gompomies Act, 1867. EEDUCTION OF CAPITAL AND SHARES. 9. Power to Oompcmy to reduce capital. — Any Company limited by shares (a) may, by special resolution, so far modify tlie conditions contained in its Memorandum of Association if authorised so to do by its regulations as originally framed or as altered by special resolution, (&) as to reduce its capital ; but no such resolution for reducing the capital of any Com- pany shall come into operation until an order of the court is registered by the Eegistrar of Joint- Stock Companies, as is hereinafter mentioned. (a) Any Company limited by shares.'] — A limited Company, registered under the Companies Act of 1856, is within this enactment: (ife Crimble Spinning Company, W. N. 1868, p. 96.) (b) As altered by special resolution.'] — If a Company's regulations do not authorise it to modify the conditions contained in its Memorandtmi of Association, its regulations must be altered in order to give the court jurisdiction to make the order provided for by this section ; if such a course were not taken, the resolution, even if binding on the existing shareholders, would not bind future shareholders : {Re 'West India and Pacific Steamship Company, W. N. 1868, p. 112.) 10. Company to add " and reduced " to its name for a limited period. — The Company shall, after the date of the passing of any special resolution for reducing its capital, add to its name, until such date as the court may fix, (a.) the words " and reduced," as the last words in its name, and those words shall, until such date, be deemed to be part of the name of the Company within the meaning of the priacipal act. (a) Until such date as the court may fix.] — Three months from the date of the final order has been held to be a proper period, at the end of which the addition of the words " and reduced " to the name of a Company, that has petitioned for an order to confirm resolutions passed for the reduction of their capital under this act, may be discon- tinued : (iJe Sharp Stewart and Company, Law Rep. 5 Eq. 155.) 11. Company to apply to the court for an order confirming reduction. — A Company which has passed a special resolution for reducing its capital, may apply to the court by petition (a) for an order confirming the reduction, and on the hearing of the petition the court, if satisfied that with respect to every creditor of the Company who under the provisions of this act is entitled to object to the reduction, either his consent to the reduction has been obtained, or his debt or claim has boon discharged or has determined, or has been secured as hereinafter provided, may make an order con- Unlimited Liability of Directors. 385 firming the reduction(?)) on such terms and subject to such conditions as it deems fit. (a) By petition, Sfc.'] — For the practice with regard to petitions to reduce capital, see the General Order of March, 1868, Kules 2 et seq., post. (V) An order confirming the reduction, ^-c] — For a form of such an order, see Re Sharp, Stewart, and Company, Law Rep. 5 Eq. 155. See, also, Re Park-lane Company, W. N. 1868, p. 76. 12. Definition of the court. — The expression " the court" (a) shall in this act mean the court which has jurisdiction to make an order for winding-up the petitioning Oom- panjTj and the eighty-first and eighty-third sections of the principal act shall be construed as if the term " wind- ing-up" in those sections included proceedings under this act, and- the court may in any proceedings under this act make such order as to costs as it deems fit. (o) TTie expression " the court.'"'] — See p. 157, ante. 13. Greditors may object to reduction, and list of objecting creditors to be settled by the court. — Where a Company pro- poses to reduce its capital, every creditor of the Company who at the date fixed by the court (a) is entitled to any debt or claim which, if that date were the commencement of the winding-up of the Company, would be admissible in proof (?j) against the Company, shall be entitled to object to the pro- posed reduction, and to be entered in the list of creditors who are so entitled to object. The court shall settle a list of such creditors, (c) and for that purpose shall ascertain as far as possible without re- quiring an application from any creditor the nam.es of such creditors and the nature and amount of their debts or claims, and may publish notices (i) fixing a certain day or days within which creditors of the Company who are not entered on the Hst are to claim to be so entered or to be excluded from the right (e) of objecting to the proposed reduction. (a) At the date fixed by the court.]— See the General Order of Marcli, 1868, Rule 4, post. (b) Would be admissible in proof, §•<;.] — See p. 240, ante, as to debts or claims admissible to proof in a winding-up. (c) The court shall settle a list of such creditors.'] — For the mode of proceeding in settling a list, see Re Sharp, Stewart, and Company, Law Rep. 5 Eq. 155. (d) Publish notices, ^c] — See the General Order of March, 18G8, Rule 10, post. 386 The Companies Act, 1867. (e) To he excluded from the right, ^c] — See sect. 17, infra, as to creditors who are ignorant of the proceedings. 14. Oov/rt may cUspense with consent of creditor on security being given for his debt. — Where a creditor whose name is entered on the list of creditors^ and whose debt or claim is not discharged or determined, does not consent (a) to the proposed reduction, the court may (if it think fit) dispense with such consent on the Company securing the payment of the debt or claim of such creditor by setting apart, and ap- propriating in such manner as the court may direct, a sum of such amount as is hereinafter mentioned ; (that is to say,) (1 .) If the full amount of the debt or claim of the creditor is admitted by the Company, or, though not admitted, is such as the Company are willing to set apart and appropriate, then the fuU amount of the debt or claim shall be set apart and appropriated. (2.) If the full amount of the debt or claim of the creditor is not admitted by the Company, (6) and is not such as the Company are willing to set apart and appro- priate, or if the amount is contingent or not ascer- tained, then the court may, if it think fit, inquire into and adjudicate upon the validity of such debt or claim, and the amount for which the Company may be liable in respect thereof, in the same manner as if the Company were being wound-up by the court, and the amount fixed by the court on such inquiry and adjudication shall be set apart and appropriated. (a) Does not consent, ^-c.]— See the General Order of March, 1868, Rule 17, post. (h) Is not admitted h/ the Company.'] — As to the course to be pursued in that case, see the General Order of March, 1868, Rules 12 et seq., post. 15. Order and minute to be 7-egistcred. — The Eegistrar of Joint-Stock Companies upon the production to him of an order of the court confirming the reduction of the capital of a Company, and the delivery to him of a copy of the order and of a minute (a) (approved by the court), showing with respect to the capital of the Company, as altered by the order, the amount of such capital, the number of shares in which it is to be divided, and the amount of each share, shall register the order and minute, and on the registration the special resolution confirmed by the order so registered shall take effect. Unlimited Liahility of Directors. 387 Notice of such registration shall be published in such manner as the court may direct, {b) The registrar shall certify under his hand the registration of the order and minute, and his certificate shall be conclu- sive evidence that all the requisitions of this act with respect to the reduction of capital have been complied withj and that the capital of the Company is such as is stated in the minute. (a) A copy of the order and of a minute, ^c] — For a form of order and minute, see Re Sharp, Stewart, and Company (Law Rep. 5 Eq. 155) ; there the court held that the minute might be embodied in the order, and would so be sufficiently approved by the court. (V) In such manner as the court may direct. — In the case last men- tioned the court directed advertisements to be inserted in the London Gazette, Times, and a newspaper of the place where the Company carried on business. 1 6. Minute to form part of Memorandum of Association. — The minute when registered shall be deemed to be sub- stituted for the corresponding part of the Memorandum of Association (a) of the Company, and shall be of the same validity and subject to the same alterations as if it had been originally contained in the Memorandum of Association ; and . subject as in this act mentioned, no member of the Com- pany, whether past or present, shall be liable in respect of any share to any call or contribution exceeding in amount the difference (if any) between the amount which has been paid on such share and the amount of the share as fixed by the minute. (a) Corresponding part of the Memorandum of Association, ^c] — That is the part of the memorandum which states the amount of capital divided into shares of a certain iixed amount, see p. 8, ante. 1 7. Sa/ui/ng of rights of creditors who aire ignorant of pro- ceedings. — If any creditor who is entitled in respect of any debt or claim to object to the reduction of the capital of a Company under this act is, in consequence of his ignorance of the proceedings taken with a view to such reduction, or of their nature and effect with respect to his claim, not entered on the list of creditors, and after such reduction the Company is unable, within the meaning of the eightieth section of the principal act,(») to pay to the creditor the amount of such debt or claim, every person who was a member of the Company at the date of the registration of the order and minute relating to the reduction of the. capital of the Company, shall be liable to contribute for the 388 The Companies Act, 1867. payment of suet debt or claim an amount not exceeding tlie amount wliich he would liave been liable to contribute if tlie Company had commenced to be wound-up on the day prior to such registration, and on the Company being wound-up, the court on the application of such creditor, and on proof that he was ignorant of the proceedings taken with a view to the reduction, or of their nature and effect with respect to his claim, may, if it think fit, settle a list of such contribu- tories accordingly, and make and enforce calls and orders on the contributories settled on such list in the same manner in all respects as if they were ordinary contributories in a winding-up ; but the provisions of this section shall not affect the rights of the contributories of the Company among themselves. (a) l^he eightieth section of the principal act.'] — See p. 155, ante. 18. Copy of registered minute. — A minute when registered shall be embodied in every copy of the Memorandum of Association issued after its registration; and if any Com- pany makes default in complying with the provisions of this section it shall incur a penalty (a) not exceeding one pound for each copy in respect of which such default is made, and every director and manager of the Company who shall know- ingly and wilfully authorise or permit such default shall incur the like penalty. (ffi) It shall incur u penalty.'] — As to the recovery of penalties, see p. 136, ante. 19. Penalty on concealment of name of creditor. — If any director, manager, or officer of the Company wilfuUy con- ceals the name of any creditor of the Company who is entitled to object to the proposed reduction, or wilfully mis- represents the nature or amount of the debt or claim of any creditor of the Company, or if any director or manager of the Company aids or abets in or is privy to any such concealment or misrepresentation as aforesaid, every such director, manager, or officer shall be guilty of a misde- meanor. 20. Poiver to mahe rules c.vtend-od to making rules con- cerning matters in this act. — The powers of making rules concerning winding-up conferred by the one hundred and seventieth, one hundred and seventy-first, one hundred and seventy-second, and one hundred and seventy-third sections of the principal act shall respectively extend to making Subdivision of Shares. 389 rules {a) concerning matters in wliicli jurisdiction is by this act given to the court which has the power of making an order to wind-up a Company, and until such rules are made the practice of the court in matters of the same nature shall, so far as the same is applicable, be followed. (a) Extend to mating ruks, Sfc."] — The General Order and Rules of March, 1868, post, have been issued in pursuance of the power here given. SUBDIVISION OF SHARES. 21. Shares may he divided into shares of smaller amount. — Any Company limited by shares may by special resolution so far modify the conditions contained in its Memorandum of Association, if authorised so to do by its regulations as origiaally framed or as altered by special resolution, (a) as by subdivision of its existing shares or any of them, to divide its capital, or any part thereof, into shares of smaller amount(&) than is fixed by its Memorandum of Association. Provided, that in the subdivision of the existing shares the proportion between the amount which is paid and the amount (if any) which is unpaid on each share of reduced amount shall be the same as it was in the case of the existing share or shares from which the share of reduced amount is derived. (a) As altered by special resolution.'] — See p. 130, ante. (V) Into shares of smaller amount.'] — As to such subdivision of shares before this act, see Re New Zealand Banking Corporation, SewelVs case (Law Bep. 3 Ch. App. 131) ; and Re Finance Corporation, Ex parte Felling, Holmes, and others (Law Rep. 2 Ch. App. 714). 22. Special resolution to he embodied in Memorandum of Association. — The statement of the number and amount of the shares into which- the capital of the Company is divided contained in every copy of the Memorandum of Association issued (a) after the passing of any such special resolution, shall be in accordance with such resolution ; and any Com- pany which makes default in complying with the provisions of this section shall incur a penalty not exceeding one pound for each copy in respect of which such default is made ; and every director and manager of the Company who knowingly or wilfully authorises or permits such default shall incur the hke penalty. (a) Every copy of the Memorandum of Association issued, ^c] — Sect. 19 of the principal act provides for the forwarding of such a copy to every member of the Company at his request. 390 The Gow/pcmies Ad, 1867. ASSOCIATIONS NOT FOE PEOFIT. ^3. Special provisions as to associations formed for purposes not of gain. — ^Where any association (a) is about to be formed under the principal act as a limited Company^ if it proves to the Board of Trade that it is formed for the purpose of pro- moting' commerce, art, science, religion, charity, or any other useful object, and that it is the intention of such association to apply the profits, if any, or other income of the association, in promoting its objects, and to prohibit the payment of any dividend to the members of the association, the Board of Trade may by licence, under the hand of one of the secre- taries or assistant secretaries, direct such association to be registered with limited liability, without the addition of the word limited to its name, and such association may be regis- tered accordingly, and upon registration shall enjoy all the privileges and be subject to the obhgations by this act imposed on limited Companies, with the exceptions that none of the provisions of this act that require a limited Company to use the word limited as any part of its name, or to publish its name, or to send a list of its members, directors, or managers to the registrar, shall apply to an association so registered. The licence by the Board of Trade may be granted upon such conditions and subject to such regulations as the board think fit to impose, and such conditions and regulations shall be binding on the association, and may, at the option of the said board, be inserted in the Memorandum and Articles of Association, or in both or one of such documents. (a) Where any association, §-c.] — ^As to the power of associations not for profit to hold lands, see sect. 21 of the principal act, p. 51, ante. CALLS UPON SHAKES. 24. Cmnpany may have some shares fully paid and others not. — ^Nothing contained' in the principal act (a) shall be deemed to prevent any Company under that act, if autho- rised by its regulations as originally framed or as altered by special resolution, from doing any one or more of the follow- ing things ; namely, — (1.) Mating arrangements on the issue of shares for a diffe- rence between the holders of such shares in the amount of calls to be paid, and in the time of pay- ment of such calls : (2.) Accepting from any member of the Company who Sha/re Wan'ants to Bewrer. 391 assents thereto tte whole or a part of the amount remaining unpaid on any share or shares held by him, either in discharge of the amount of a call payable ia respect of any other share or shares held by him or without any call having been made : (3.) Paying dividend ia proportion to the amount paid up on each share in cases where a larger amount is paid up on some shares than on others. (a) Nothing confirmed in the principal act."] — As to the manner in which the power of making . calls should be exercised, and the circum- stances under which a court of equity will restrain the enforcement of a call improperly made, see Preston v. Grand Collier Dock Company (11 Sim. 327), Mangles v. Grand Collier Dock Company (10 Sim. 519), Bailey v. Birkenhead Railway Company (12 Beav. 433), Yetts v. Norfolk Eaihcay Company (3 De G. & S. 293), and Richmond's case and Painter's case (4 K. & J. 305). 25. Manner in ivMch sha/res are to be issued and held. — Every share in any Company (a) shall be deemed and taken to have been issued and to be held subject to the payment of the whole amount thereof in cash, unless the same shall have been otherwise determined by a contract duly made in writing, and filed with the Eegistrar of Joint-Stock Com- panies at or before the issue of such shares. (a) Every share in any Company.'] — This is a most important pro- vision, and should be carefully borne in mind by all persons entering into qualified contracts for shares, or accepting payment in paid-up shares for goods, laboiu:, &c. It is to be observed that* the section embraces the shares in all Companies. TEANSFEE 01" SHARES. 26. Transfer may be registered at request of transferor. — A Company shall, on the application of the transferor of any share or interest in the Company, enter in its register of members the name of the transferee of such share or interest, in the same manner and subject to the same con- ditions as if the appUcation for such entry were made by the transferee, (a.) (a) Made by the transferee."] — On the subject of transfers generally, see p. 55, et seq. This section is not likely to have much practical effect. SHARE WARRANTS TO BEARER. 27. WarroMt of Ivndted shares fully paid-up may he issued in name of bearer, {a) — In the case of a Company limited by shares the Company, if authorised so to do by its regulations 392 The Companies Act, 1867. as originally framed or as altered by special resolution, and subject to tbe provisions of sucb regulations, may, with respect to any share which is fully paid-up, or with respect to stock, issue under their common seal a warrant stating that the bearer of the warrant is entitled to the share or shares or stock therein specified, and may provide, by coupons (b) or otherwise, for the payment of the future divi- dends on the share or shares or stock included in such war- rant, hereinafter referred to as a share warrant. (a) By this and the nine following sections, Companies are enabled to give their fully paid-up shareholders greater facilities than they have hitherto had for dealing with their shares. The holder of one of the warrants here provided for, may make any one the owner of his share, and confer on hTm all his rights against the Company by simple delivery of the warrant withotrt any formal transfer. Thus share warrants may pass through as many hands, and with as much facOity as bank notes, the holder for the time being having the right to claim any dividends that become payable, and to require his name to be entered on the register of members. (6) May provide by coupons.} — A coupon (derived from the French couper, to cut) is that part of a commercial instrument which is to be cut, and which is evidence of something connected with the contract mentioned in the instrument. It was held, in the case of Enthoven v. Hmfle (21 L. J. C. P. 100), that coupons attached to debentures, and which should be presented in order to obtain payment of the interest as it fell due, did not require to be stamped. The form of coupon there used is given in the report of the case. 28. Effect of share ivarrant. — ^A share warrant shall entitle the bearer of such warrant to the shares or stock specified in it, and such shares or stock may be transferred by the delivery of the share warrant. 29. He-registration of hearer of a share warrant in the register. — The bearer of a share warrant shall, subject to the regulations of the Company, be entitled, on surrendering such warrant for cancellation, to have his name entered as a member in the register of members, (a) and the Company shall be responsible for any loss incurred by any person by reason of the Company entering in its register of members the name of any bearer of a share warrant in respect of the shares or stock specified therein without the share warrant being surrendered and cancelled. (o) /" the rcfjl.itci- ofmemhcrs.'] — The fact of a Company availing itself of these provisions with respect to issuing shaje warrants does not supersede the necessity for keeping a register. 80. liegulaiions of the Gompany may iiialie the hearer of a share irarranf a member. — 'I'lie bearer of a share warrant Sliare Wa/rrants to Bearer. 393 may, if tlie regulations of the Company so provide, be deemed to be a member of tlie Company witMn tlie meaning of the principal act, either to the full extent or for such purposes (a) as may be prescribed by the regulations : Provided that the bearer of a share warrant shall not be qualified in respect of the shares or stock specified in such warrant for being a director or manager of the Company in cases where such a qualification is prescribed by the regula- tions of the Company. (a) Either to the full extent or for such purposes, §•£.] — ^It thus rests entirely mth. the framers of the Company's Articles of Association to determine the extent to 'which they -will allow the bearers of share •warrants to have the rights of members. 31. Bntries in register where share wa/rrant issued. — On the issue of a share warrant iu respect of any share or stock the Company shall strike out of its register of members the name of the member then entered therein as holding such share or stock as if he had ceased to be a member, and shall enter in the register the following particulars : (1.) The fact of the issue of the warrant : (2.) A statement of the shares or stock included in the war- rant, distinguishing each share by its number : (3.) The date of the issue of the warrant : And until the warrant is surrendered the above particulars shall be deemed to be the particulars which are required by the twenty-fifth section of the principal act (a) to be entered in the register of members of a Company; and on the surrender of a warrant the date of such surrender shall be entered as if it were the date at which a person ceased to be a member. (6) (a) The twenty-fifth section of the principal act."] — See p. 100, ante. (6) A person ceased to he a member.'] — It is difficult to attach any precise meaning to this part of the section. See, however, sect. 29, supra. 32. Particulars to he contained in annual summary. — After the issue by the Company of a share warrant the annual summary (a) required by the twenty-sixth section of the principal act shall contain the following particulars : — the total amount of shares or stock for which share warrants are outstanding at the date of the summary, and the total amount of share warrants which have been issued and sur- rendered respectively since the last summary was made, and the number of shares or amount of stock comprised in each warrant. 394 The Gompanies Act, 1867. (a) The annual summary, Ij-c] — For a form of this annual sununaiy, Bee p. 307, ante. 33. Stamps on share warrants. — There shall be charged on every share warrant a stamp duty of an amount equal to three times the amount of the ad valorem stamp duty which would be chargeable on a deed transferring the share or shares or stock specified in the warrant, if the consideration for the transfer were the nominal value of such share or shares or stock. 34. Penalties on persons committing forgery. — ^Whosoever forges or alters, or offers, utters, disposes of, or puts off, knowing the same to be forged or altered, any share warrant or coupon, or any document purporting to be a share warrant or coupon, issued in pursuance of this act, or demands or endeavours to obtain or receive any share or interest of or in any Company under the principal act, or to receive any dividend or money payable in respect thereof, by virtue of any such forged or altered share warrant, coupon, or document, purporting as aforesaid, knowing the same to be forged or altered, with intent in any of the cases aforesaid to defraud, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for hfe or for any term not less than five years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. 35. Penalties on persons falsely personating owner of shares. — Whosoever falsely and deceitfully personates any owner of any share or interest of or in any Company, or of any share warrant or coupon issued in pursuance of this act, and thereby obtain or endeavours to obtain any such share or interest, or share warrant or coupon, or receives or endea- vours to receive any money due to any such owner, as if such offender were the true and lawful owner, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for life or for any term not less than five years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confine- ment. 36. Penalties onpvrsons en.gravin{/ plates, Sfc. — Whosoever, without lawful authority or excuse, the proof whereof shall be on the party accused, engraves or makes upon any plate, Gontracts. 395 wood, stone, or other material any share warrant or coupon purporting to be a share wacrant or coupon issued or made by any particular Company under and in pursuance of this act, or to be a blank share warrant or coupon issued or made as aforesaid, or to be a part of such a share warrant or coupon, or uses any such plate, wood, stone, or other material for the making or printing any such share warrant or coupon, or any such blank share warrant or coupon, or any part thereof respectively, or knowingly has in his custody or possession any such plate, wood, stone, or other material, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be kept in penal servitude for any term not exceeding fourteen years and not less than five years, or to be imprisoned for any term not exceeding two years, with or without hard labour, and with or without solitary confinement. CONTRACTS. 37. Gontracts- how made. — Contracts on behalf of any Company under the principal act may be made as foUows j (a) (that is to say,) (1.) Any contract which if made between private persons would be by law required to be in writing, and if made accordiug to English law to be under seal, may be made on behalf of the Company in writing under the common seal of the Company, (&) and such contract may be in the same manner varied or dis- charged : (2.) Any contract which if made between private persons would be by law required to be in writing, and signed by the parties to be charged therewith, may be made on behalf of the Company in writing signed by any person acting under the express or implied authority (c) of the Company, and such contract may in the same manner be varied or discharged : {d) (3.) Any contract which if made between private persons would by law be valid although made by parol only, and not reduced into writing, may be made by parol(e) on behalf of the Company by any person acting under the express or implied authority of the Company, and such contract may in the same way be varied or discharged : And all contracts made according to the provisions herein contained shall be effectual in law, and shall be binding upon the Company and their successors and all other parties 396 The Companies Act, 1867. thereto, their heirs, executors, or admiaistrators, as the case may be. (a) May he made as folloii's.] — Similar provisions to those of this sec- tion were contained in the "Joint-Stock Companies Act, 1856" (19 & 20 Vict. c. 47), s. 41 ; and are contained in " The Companies Clauses Consolidation Act, 1845 " (8 & 9 Vict. c. 16), s. 97. (6) In icriting under the common seal of the Company.] — ^This clause merely expresses the general law,of contracts as applicable to corpora- tions, apart from special enactments. As to this see p. 35, ante. (c) Acting under the express or implied authority, Sfc] — Under this clause a Company will be bound by a writing not under seal, in cases where such a writing woiild bind an individual, provided only that the writing be signed by a duly authorised agent. See Prince v. Prince, Law Eep. 1 Eq. 490. See, however, with regard to the question of agency, Williami v. Chester and Holyhead Railway Company (15 Jur. 828), especially the observations of Martin, B., with respect to the evidence against Companies in suits at law. As to whether an agent not appointed under seal can enter into a contract for the sale or purchase of land on behalf of a Company, see Wilson V. West Hartlepool Railway Company (34 Beav. 187 ; 5 N. R. 289 ; 2 De G. J. & S. 475), Laird v. Birkenhead Railway Company (Johns. 500 ; 29 L. J. Ch. 218), and London and Birmingham Railway Company v. Winter (Cr. & Ph. 57). A Company was held not to be bound (under the Companies Clauses &c.. Act) by a contract in writing entered into by its directors, who did not sign it as directors or purport to bind the Company : [Serrell v. Derby- shire, SfC. Railway Company, 9 C. B. 811 ; 19 L. J. C. P. 371.) See, also, Leominister Canal Company v. Tlie Shrewsbury and Hereford Railway Company (3 K. & J. 654 ; 26 L. J. Ch. 764), Midland Great Western Railway Company of Ireland v. Johnson (6 Ho. Lords Cas. 798), and Diggle v. London and Blachncall Railway Company (5 Exch. 442). (d) In the same manner be varied or discharged.] — Where additional terms or variations of a written agreement become necessary, the same formalities that are required for the validity ot the original contract should be observed: (^Kirk v. Bromley Union, 2 Ph. 640 ; Jackson v. The North Wales Railway Company, 6 RaU. Cas. 112 ; 13 Jur. 69 ; Willianis v. The Chester and Holyhead Railway Company, 15 Jur. 828.) (e) May be made by parol, j^r.] — Where the agent of a railway Company agreed by parol for the purchase of sleepers which were received and used by the Company, it w;is held that the Company were bound under an enactment similar to this {Pauling v. The Loudon and North Western Railway Company, 8 Exch. 867). A railway Company was also .held liable to pay for tlie use and occupation of land occupied by it for the purposes of its business : (Lowe v. The London and North Western Railway Company, 18 Q. B. 632 ; 7 RaU. Cas. 524.) Where there was au express contract under seal for the execution of certain works for a Compiuiy, it was held that the court could not, in the absence of any evidence, assume aa implied contract for the execu- tion of other extra works done by tlie orders and imder the super^ intcndonce of the officer appointed to see the specified works properly executed : (Ilonwrsham v. Wolverhampton Waterworks Company, 6 Exch. 137 ; 20 L. J. Ex. 193.) Meetings. 397 See, also, as to extra works, Lamprell v. TheBillericay Union (3 Exch. 283) ; Hanger v. Tlie Oreat Westet-n Railway Company (5 Ho. Lords Cas. 72) ; Nixon v. The Taff Vale Railway Company (7 Ha. 136) ; and Kirk V. The Bromley Union (2 Ph. 640). On the subject of agency to a Company, see, also, Btimes v. Pennell (2 Ho. Lords Cas. 497) ; Wilson v. West Hartlepool Railway Company (34 Beav. 187) ; Olding v. Smith (16 Jiir. 497). In the recent case of Walker v. The Great Western Railway Company (Law Eep. 2 Ex. 228), it was held that^the general manager of a railway Company had an implied authority, as incidental to his employment, to bind the Company to pay for surgical attendance bestowed at his request on a servant of the Company injured by an accident on their railway. 38. Prospectus, 8j-c., to specify dates and names of parties to any contract made prior to issue of such prospectus, Sfc. — Every prospectus (a) of a Companyj and every notice inviting persons to subscribe for stares in any joint-stock Oompanyj stall specify the dates and the names of the parties to any contract entered into by the Company, or the promoters, directors, or trustees thereof, before the issue of such prospectus or notice, whether subject to adoption by the directors or the Company, or otherwise ; and any prospectus or notice not specifying the same shall be deemed fraudulent on the part of the" promoters, directors, and officers of the Company knowingly issuing the same, as regards any person taking shares ia the Company on the faith of such prospectus, unless he shall have had notice of such contract. (o) Every prospectits, Sfc] — ^It is to be observed that this section is expressed in the most sweeping terms, and embraces all Companies. MEETINGS. 39. Company to hold meeting within four months after registration. — Every Company formed under the principal act after the commencement of this act shall hold a general meeting within four months (a) after its Memorandum of Association is registered; and if such meeting is not held the Company shall be liable to a penalty not exceeding five pounds a day for every day after the expiration of such four months until the meeting is held ; and every director or manager of the Company, and every subscriber of the Memorandum of Association, who knowingly authorises or permits such default, shall be liable to the same penalty. (a) A general meeting within four months, SfC.I — The Act of 1862, s. 52 (p. 132, ante), prescribes the manner of summoning and holding a general meeting where the Company has no regulations on the subject, and, by sect. 49 (p. 129, ante), enacts that every Company under the act shall hold a general meeting at least once in every year. A Com- 398 The Companies Act, 1867. pany may be wovmd-up if it does not commence its business ■within a year of incorporation, i. e., within a year from the date of the registrar's certificate, under sect. 18 of the Act of 1862. See p. 152, ante. WINDING-UP. 40. Contributory when not qualified to present winding-up petition. — No contributory (a) of a Company under the principal act shall be capable of presenting a petition for winding-up such. Company unless the members of the Com- pany are reduced in number to less than seven, or unless the shares in respect of which he is a contributory, or some of them, either were originally allotted to him or have been held by him, and registered in his name, for a period of at least six months during the eighteen months previously to the commencement of the winding-up, or have devolved upon him. through the death of a former holder : Provided that where a share has during the whole or any part of the six months been held by or registered in the name of the wife of a contributory either before or after her marriage, or by or in the name of any trustee or trustees for such wife or for the contributory, such share shall for the purposes of this section be deemed to have been held by and registered in the name of the contributory. (a) No contributory, Sfc] — For the meaning of the term contributory, see sect. 74 of the Act of 1862 (p. 147, ante) ; the right of a contributory, under sect. 82 of that act, to present a petition for winding-up was quite unqualified previously to the present enactment, and was fre- quently made use of to the prejudice of the bond fide shareholders. 41. Winding-up may he referred to County Court. — ^Where the High Court of Chancery in England makes an order for winding-up a Company under the principal act, it may, if it thinks fit, direct all subsequent proceedings (a) to be had in a County Court held under an act of the session of the nrath and tenth years of the reign of Her present Majesty, chapter ninety-five, and the acts amending the same ; and thereupon such County Court shall, for the purpose of winding-up the Company, be deemed to be " the court" within the meaning of the principal act, (6) and shall have, for the purposes of such winding-up, all the jurisdiction and powers of the High Court of Chancery. (a) Din'cl all siihscfjiwnt proceedings.] — Where, on a petition to wind- up a Company, the court was asked to refer the winding-up to the County Court under this section, the court made the winding-up order, leaving the petitioners to apply at ohaiiibers for a reference of the Winding-up. 399 winding-up to the County Court : (London and Westminster Co-operative Store Company, W. N". 1868, p. 28 ; 17 L. T. JST. S. 559.) (b) Within the meaning of the principal act.J—See p. 157, ante. 42. As to transfer of suit from one Gounty Gourt to another. — If during tile progress of a winding-up it is made to appear to the High Court of Chancery that the same could be more conveniently prosecuted in any other County Courts it shall be competent for the High Court of Chancery to transfer the same to such other County Court, and thereupon the winding-up shall proceed in such other County Court. 43. Parties aggrieved may appeal. — If any party in a winding-up under this act is dissatisfied with the determi- nation or direction of a judge of a County Court on any matter in such winding-up, such party may appeal from the same to the Vice-Chancellor named for that purpose by the Lord Chancellor by general order : provided that such party shall, within thirty days after such determination or direc- tion, give notice of such appeal to the other party or his attorney, and also deposit with the registrar, of the County Court the sum of ten pounds as security for the costs of the appeal ; and the said court of appeal may make such final or other decree or order as it thinks fit, and may also make such order with respect to the costs of the said appeal as such court may think proper, and such orders shall be final. 44. Powers to frame rules and orders under sect. 82 of 19 ^ 20 Vict. c. 108. — The County Court judges appointed or to be appointed by the Lord Chancellor from time to time to frame rules and orders for regulating the practice of the courts, and forms of proceedings therein, under the thirty-second section of an act passed in the nineteenth and twentieth years of the reign of Her present Majesty, chapter one hundred and eight, shall frame the rules and orders for regulating the practice (a) of the County Courts under this act, and forms of proceedings therein, and from time to time may amend such rules, orders, and forms ; and such rules, orders, and forms, or amended rules, orders, and forms, certified under the hands of such judges or of any three or more of them, shall be submitted to the Lord Chan- cellor, who may allow or disallow or alter the same, and so from time to timej and the rules, orders, and forms, or amended rules, orders, and forms, so allowed or altered, shall from a day to be named by the Lord Chancellor be in force in every County Court. 400 The Oom;pam,ies Ad, 1867. (a) For regulating the practice.'] — See County Court Orders, post. 45. Scale of costs to he framed by the judges. — The County Court judges mentioned in the last section shall be em- powered to frame a scale of costs and charges to be paid to counsel and attorneys with respect to all proceedings in a winding-up under this act, and from time to time to amend such scale ; and such scale or amended scale, certified under the hands of such judges or any three or more of them, shall be submitted to the Lord Chancellor, who from time to time may allow or disallow or alter the same ; and the scale or amended scale so allowed or altered shall, from a day to be named by the Lord Chancellor, be in force in every County Court. f 46. Remuneration of registrars and high bailiffs in wind- ing-up of Companies. — The registrars and high bailiffs of the County Courts shall be remunerated for the duties to be per- formed by them under this act, by receiving, for their own use, such fees as may be from time to time authorised to be taken by any orders to be made by the Commissioners of the Treasury, with the consent of the Lord Chancellor ; and the Commissioners of the Treasury are hereby authorised and empowered, with such consent as aforesaid, from time to time to make such orders ; provided that it shall be lawful for the said commissioners, with the Hke consent as afore- said, by an order to direct that after the date named in the order any registrar or high bailiff shall, in Heu of receiving such fees, be paid such fixed or fluctuating allowance as may in each case be thought just, and after such date the said fees shall be accounted for and paid over by such regis- trar or high bailiff in such manner as may be directed in the order. SAVIKG. 47. Not to exempt Gompanies from provisions of sect. 196 of 25 Sf 26 Vict. c. 89. — Nothing in this act contained shall exempt any Company from the second or third provisions (ft) of the one hundi-ed and ninety-sixth section of the principal act restraining the alteration of any provision in any act of Parliament or chai-ter. (a) Scronil or third provisions, >Vc.J — See p. 269, ante. 401 GENBEAL ORDER AND RULES or THE HIGH COUET OF CHANCERY, TO REGULATE THE MODE OF PROCEEDING UNDER THE COMPANIES ACT, 1867. ISSUED BY THE LOBD HIGH CHANCELLOB, Saturday, the 21st day of March, 1868. ORDER OF COURT. Saturday, the 21sJ day of March, 1868. The Right Honorable Hugh MacOalmont Baeon Caiens, Lord High. Chancellor of Great Britainj with the advice and consent' of the Right Honorable John Loed RomillTj Master of the Rolls; the Honorable the Vice-Chancelloe SiE John Stuaet, and the Honorable the Yice-Chancelloe SiE RiCHAED MalinSj doth hereby, in pursuance and execu- tion of the powers given to him by " The Companies Act, 1867," and of all other powers and authorities enabling him in that behalf, order and direct in manner following : — Petitions for winding-up. 1. Every petition (a) which shall after this order comes into operation be presented for the winding-up of any Com- pany by the court, or subject to the supervision of the court, and all notices, aifidavits, and other proceedings under such petition, shall be intituled in the matter of " The Com- panies Acts, 1862 and 1867," and of the Company to which such petition shall relate. (a) See p. 317, ante. Petition to reduce Capital. 2. Every petition for an order confirming a special resolu- tion for reducing the capital of a Company, and all notices, affidavits, and other proceedings under such petition, shall 402 The Compcmies Ad, 1867. be intituled in the matter of "The Companies Act, 1867," and of the Company in question. 3. No such petition as mentioned in the 2nd rule of this order shall be placed in the list of petitions by the secretary of the Lord Chancellor or the Master of the Rolls, as the case may be, until after the expiration of eight clear days from the filing of such certificate as is mentioned in the 14th rule of tlus order. 4. When any such petition as last aforesaid has been pre- sented, application may be made, ex parte by summons in chambers, to the judge to whose court the petition is attached, for directions as to the proceedings to be taken for settling the list of creditors entitled to object to the proposed reduction, and the judge may thereupon fix the date with reference to which the list of such creditors is to be made out, pursuant to the 13th section of " The Com- panies Act, 1867;" and may, either at the same time or afterwards, as he shall think fit, give such directions as are mentioned in the 5th and 6th rules of this order. The order upon such summons may be in the Form No. 1 in the schedule hereto, with such variations as the circumstances of the case may require. 5. Notice of the presentaiion of the petition shall be published at such times, and in such newspapers as the judge shall direct, so that the first insertion of such notice be made not less than one calendar month before the day of the date fixed as mentioned in the 4th rule of this order. Such notice may be in the Form No. 2 in the schedule hereto, with such variations as the circumstances of the case may require. 6. The Company shall, within such time as the judge shall direct, file in the Office of the Clerks of Records and Writs, an affidavit made by some officer or officers of the Company competent to make the same, verifying a hst(a) containing the nrtnics and addresses of the creditors of the Company at the date fixed as mentioned in the 4th rule of this order, and the amounts due to them respectively, and leave the said list mid au office copy of such affidavit, at the chambers of the judge. (a) As to the penalties on concealment of the name of any creditor, ace sect. 19 of the act. 7. The person making such affidavit shall state therein Genercd Order of Court, March, 1868. 403 his belief that such list is correctj and that there was not at the date so fixed as aforesaid any debt or claim, which, if that date were the commencement of the winding-up of the Company, would be admissible in proof(a) against the Company, except the debts set forth in such list, and shall state his means of knowledge of the matters deposed to in such affidavit. Such affidavit may be in the Form No. 3 in the schedule hereto, with such variations as the circumstances of the case may require. (a) See page 240, ante, as to debts or claims admissible to proof in a ■winding-up. 8. Copies of such list shall be kept at the registered office of the Company, and at the offices of their solicitors and London agents (if any), and any person desirous of inspect- ing the same may at any time, during the ordinary hours of business, inspect and take extracts from the same on payment of the sum of one shiUing. 9. The Company shall, within seven days after the filing of such affidavit, or such further time as the judge may allow, send to each creditor whose name is entered in the said list, a notice (a) stating the amount of the proposed reduction of capital, and the amount of the debt for which such creditor is entered in the said list, and the time (such time to be fixed by the judge) within which, if he claims to be a creditor for a larger amount, he must send in his name and address, and the particulars of his debt or claim, and the name and address of his solicitor (if any) to the solicitor of the Company; and such notice shall be sent through the post in a pre-paid letter addressed to each creditor at his last known address or place of abode, and may be in the form or to the efiect of the Form No. 4, set forth in the schedule hereto, with such variations as the circumstances of the case may require. (o) Where a Company had issued debentures payable to bearer, and the existing holders of such debentures were unknown, the court allowed the required notice to be given by advertisement in the public news- papers : {Re General Bank for the Promotion of Agriculture, Sj-c, W. N. 1869, p. 13.) See, also. Re West Indian and Pacific Steam Packet Company, 19 L. T. N. S. 310. 10. Notice of the list of creditors shall, after the filing of the affidavit mentioned in the 6fch of these rules, be pub- lished at such times, and in such newspapers, as the judge shall direct. Every such notice shall state the amount of ^■04 The Gomjmnies Act, 1867. tlio proposed reduction of capital, and the places where the aforesaid list of creditors may be inspected, and the time within which creditors of the Company who are not entered on the said list, and are desirous of being entered therein, must send in their names and addresses and the particulars of their debts or claims, and the names and addresses of their solicitors (if any) to the solicitor of the Company; and such notice may be in the Form No. 5, set forth in the said schedule hereto, with such variations as the circum- stances of the case may require. 11. The Company shall, within such time as the judge shall direct, file in the Office of the Clerks of Records and Writs an affidavit made by the person to whom the par- ticulars of debts or claims are by such notices as are men- tioned in the 9th and 10th rules of this order, required to be sent in, stating the result of such notices respectively, and verifying a list containing the names and addresses of the persons (if any), who shall have sent in the particulars of their debts or claims in pursuance of such notices respec- tively, and the amounts of such debts or claims, and some competent officer or officers of the Company shall join in such affidavit, and shall in such list distinguish which (if any) of such debts and claims are wholly, or as to any and what part thereof, admitted by the Company, and which (if any) of such debts and claims are wholly, or as to any and what part thereof, disputed by the Company. Such affidavit may be in the Form No. 6 in the schedule hereto, with such variations as the circumstances of the case may require ; and such list, and an office copy of such affidavit, shall, within such time as the judge shall direct, be left at the chambers of the judge. 12. If a,ny debt or claim, the particulars of which are so sent in, shall not be admitted by the Company at its full amount, then, and in every such case, unless the Company are willing to set apart and appropriate (a) in such manner as the judge shall direct the fuU amount of such debt or claim, the Company shall, if the judge think fit so to direct, send to the creditor a notice that he is required to come in and prove such debt or claim, or such part thereof as is not admitted by the Company, by a day to be therein named, being not loss than four clear days after such notice, and being the time appointed by the judge for adjudicating upon sui'h debts and claims, and such notice shall be sent in the General Order of Court, March, 1868. 405 manner mentioned in the 9th rule of this order, and may be in the Form No. 1 , in the schedule hereto, with such variations as the circumstances of the case may require, (a) As to this, see sect. 14 of the act. 13. Such creditors as come in to prove their debts or claims in pursuance of any such notice as is mentioned in the 12th of these rules, shall be allowed their costs of proof against the Company, and be answerable for costs, in •the same manner as in the case of persons coming in to prove debts under a decree in a cause. 14. The result of the settlement of the list of creditors shall be stated in a certificate by the chief clerk, and such certificate shall state what debts or claims if any have been disallowed, and shall distinguish the debts or claims the full amount of which the Company are willing to set apart and appropriate, and the debts or claims if any the amount of which has been fixed by inquiry and adjudication in manner provided by section 14 of the said act, and the debts or claims if any the full amount of which is not admitted by the Company, nor such as the Company are wilUng to set apart and appropriate, and the amount of which has not been fiied by inquiry and adjudication as last aforesaid; and shall show which of the creditors have consented in writing to the proposed reduction, and of what debts or claims the payment has been secured in manner provided by the said 14th section. 15. After the expiration of eight clear days from the filing of such last-mentioned certificate, the petition may be placed in the list of petitions upon a note from the chief clerk to the secretary of the Lord Chancellor or of the Master of the Rolls, as the case may be, stating that the certificate has been filed and become binding. 16. Before the heariug of the petition, notices stating the day on which the same is appointed to be heard shall be published at such times and in such newspapers as the judge shall direct. Such notices may be in the Form No. 8, in the schedule hereto, with such variations as the circumstances of the case may require. 17. Any creditor settled on the said list whose debt or claim has not, before the hearing of the petition, been dis- charged or determined, or been secured in manner provided by the 14th section of the said act, and who has not, before 406 The Companies Act, 1867. the hearing, sig^ned a consent to the proposed reduction of capital, may, if he think fit, upon giving two clear days' notice to the solicitor of the Company of his intention so to do, appear at the hearing of the petition and oppose the application. 18. Where a creditor who appears at the hearing under the last preceding rule, is a creditor the full amount of whose debt or claim is not admitted by the Company, and the validity of such debt or claim has not been inquired into and adjudicated upon under section 14 of the said act, the costs of and occasioned by his appearance shall be dealt with as to the court shall seem just, but in all other cases a creditor appearing under the last preceding rule shall be entitled to the costs of such appearance, unless the court shall be of opinion that in the circumstances of the particular case his costs ought not to be allowed. 19. When the petition comes on to be heard, the court may, if it shall so thiak fit, give such directions as may seem proper with reference to the securing in manner mentioned in section 14 of the said act the payment of the debts or claims of any creditors who do not consent to the proposed reduction; and the further hearing of the petition may, if the court shaU think fit, be adjourned for the purpose of allowing any steps to be taken with reference to the securing in manner aforesaid the payment of such debts or claims. 20. Where the court makes an order confirming a reduc- tion, such order shall give directions (a) in what manner, and in what newspapers, and at what times, notice of the registration of the order and of such minute as mentioned in the 16th section of " The Companies Act, 1867," is to be published ; and shall fix the date until which the words " and reduced " are to be deemed part of the name of the Company as mentioned in the 10th section of the same act. (a) See Re Sharp Stewart atid Company, Law Rep. 5 Eq. 155. Fees. 21. Solicitors shall be entitled to charge and be allowed for duties performed under " The Companies Act, 1867," the same fees (a) as they shall for the time being be entitled to charge and be allowed for the like duties performed under " The Companies Act, 1862," unless the court or judge shall otherwise specially direct. (n) See p. 339, ante. General Ord&r of Gouri, March, 1868. 407 22. The same fees of court(a) stall be paid in relation to proceedings in Chancery under " The Companies Act, 1867/' as shall for the time being be payable in relation to like proceedings in Chancery under "The Companies Act, 1862," and shall be collected by stamps in manner provided by the general orders of the court. (a) See p. 340, ante. General Directions. 23. The general orders and practice of the court, in- cluding the course of proceeding and practice in the judges' chambers, shall, in cases not provided for by " The Com- panies Act, 1867," or these rules, so far as such orders and practice are applicable and not inconsistent with the said act or with these rules, apply to all proceedings in the Court of Chancery under the said act. 24. The power of the court and of the judge sitting in chambers to enlarge or abridge the time for doing any act or taking any pro(fceeding, to adjourn or review any proceed- ing, and to give any direction as to the course of proceeding, shall be the same in proceedings under "The Companies Act, 1867," as in proceedings under the ordinary jurisdiction of the court. Commencement of Order. 25. This order shall take effect and come into operation on the 15th day of April, 1868, and shall apply to all pro- ceedings in Chancery under the said act, whether com- menced before or after that day, but every proceeding taken under the said act before that day shall have the same validity as it would have had if this order had not been made. Interpretation. 26. The general interpretation clause of the consolidated general orders shall be deemed to extend and apply to the rules of this order-, and this order shall be deemed a general order of this court. Caiens, C. romiily, m.e. John Stuaet, V.C. Richard Malins, V.C. 408 Tlui Gompcmies Act, 1867. THE SCHEDULE. No. 1. Form of Order. [Rule 4.] The Master of the RoUb ( In the matter of the for Vice-chancellor Sir 3 Company, Lmuted and Reduced; Lor, vice-l.nanceiior»ir J and in the matter of "lie at cliambers.n / r< • * _i. i oi-T » -■ V Compames Act, 1867. Upon the application of the petitioners by summons, dated , and upon hearing the solicitor for the petitioners, and on reading the petition on the day of , preferred unto the Right Honorable the Lord High Chancellor of Great Britain [or. Master of the RoUs], it is ordered that an inquiry be made what are the debts, claims, and liabilities of or affecting the said Company on the day of , 186 , and that notice of the presentation of the said petition be inserted in [the newspapers] on the day of and [other times of insertion], and that a list of the peisons who are creditors of the Company on the said day of , and an office copy of the affidavit verifying the same be left at the chambers of the judge on or before the day of No. 2. [See Rule 5.] In the matter of the Company, Limited and Reduced ; and in the matter of " The Compames Act, 1867." Notice is hereby given, that a petition for confirming a resolution reducing the capital of the above Company from £ to £ , was on the day presented to [the Lord Chancellor, or, the Master of the Rolls], and is now pending; and that the list of creditors of the Company is to be made out as for the day of , 186 . C. and D. of [agents for A. and B., of ], Solicitors to the Company. No. 3. Affidavit verifying List of Creditors. [Rule 7.] In Chancery. In the matter of the Company, Limited and Reduced ; and in the matter of " The Companies Act, 1867." I, A. B., of &o., malce oath and say as follows : — 1. The paper writing now produced and shown to me, and marked with the letter A., contjiius a list of the creditors of and persons having claims upon the said Company on the day of , 186 (the date fixed by the order in tliis matter, dated ), together with their respective addresses, imd the nature and amount of their respective debts or claims, and such list is, to the best of my knowledge, information, and belief, a tnie and accurate list of such creditors and persons having claims on the day aforesaid. 2. To the best of my knowledge and belief there was not, at the date General Order of Court. — The Schedule. 409 aforesaid, any debt or claim which, if such date were the commencement of the winding-up of the said Company, would be admissible in proof against the said Company other than and except the debts set forth in the said list. I am enabled to make this statement from facts within my knowledge as the of the said Company, and from information derived upon investigation of the affairs and the books, documents, and papers of the said Company. Sworn, Sec List of Creditors referred to in the last Form. A. In the matter, &c. This list of creditors marked A. was produced and shown to A. B., and is the same list of creditors as is referred to in his affidavit sworn before me this day of , 186 . X. Y., &c. Names, Addresses, and Description of the Creditors. Nature of Debt or Claim. Amount of Debt or Claim. No. 4. [See Rule 9.] In the matter of the Company, Limited and Reduced ; and in the matter of " The Companies Act, 1867." To Mr. You are requested to take notice that a petition has been pre- sented to the Court of Chancery to confirm a special resolution of the above Company, for reducing its capital to £ , and that in the list of persons admitted by the Company, to have been on the day of , creditors of the Company, your name is entered as a creditor [here state the amount of the debt or nature of the claim]. If you claim to have been on the last-mentioned day a creditor to a larger amount than is stated above, you must on or before the day of , send in the particulars of your claim, and the name and address of your solicitor (if any), to the undersigned at . In default of your so doing, the above entry in the list of creditors will in all the proceedings under the above application to reduce the capital of the Company be treated as correct. Dated this day of 18 . A. B., Solicitor for the said Company. 410 The Companies Act, 1867. No. 6. [See Rule 10.] In the matter of the Company, Limited and Reduced; and in the matter of "The Companies Act, 1867." Notice is hereby given, that a petition has been presented to the Court of Chancery for confirming a resolution of the above Company, for reducing its capital from £ to ^6 .A list of the persons admitted to have been creditors of the Company on the day of , 186 , may be inspected at the offices of the Company at , or at the office of , at any time during usual busi- ness hours, on payment of the charge of one shilling. Any person who claims to have been on the last-mentioned day and stUl to be a creditor of the Company, and who is not entered on the said list and claims to be so entered, must on or before the day of , send in his name and address and the particulars of his claim, and the name and address of his solicitor (if any), to the under- signed at , or in default thereof he will be precluded from objecting to the proposed reduction of capital. Dated this day of , 18 . A. B., Solicitor for the said Company. No. 6. [Rule 11.] In Chancery. In the matter of the Company, Limited and Reduced ; and in the matter of " The Companies Act, 1867." We, C. D., of &c. [the secretary of the said Company], E. F., of &c. [the solicitor of the said Company], and A. B., of &c. [the managing director of the said Company], severally make oath and say as follows; — 1, the said C. D., for myself, say as follows : — rUuIe 9.1 !• I '^•^i ^^ *^^ *^y o^ ) 186 , in the manner hereinafter mentioned, serve a true copy of the notice now produced and shown to me, and marked B., upon each of the respective persons whose names, addresses, and descriptions appear in the iirst column of the list of creditors marked A., referred to in the affidavit of , filed on the day of , 186 . 2. I served the said respective copies of the said notice by putting such copies respectively duly addressed to such persons respectively, according to their respective names and addresses appearing in the said list (being the last known addresses or places of abode of such persons respectively, and with the proper postage stamps affixed thereto as pre- paid letters, into the post office, receiving house. No. , in street, in the county of , between the hours of , and of the clock in the noon of the said day of And I, the said E. F., for myself, say as follows : If Notice 3. A true copy of the notice now produced and shown to issued under me^ and marked C, has appeared in tie of the Bule 10. day of , 186 , the of the day of 186 , &c. [Kule 11.] 4. I have, in the paper writing now produced and shown to me, and marked D., set forth a list of all claims, the particulars of which have been sent in to me pursuant to the said notice B. now General Order of Gowrt. — The Schedule. 411 produced and shown to me by persons claiming to be creditors of the said Company for larger amounts than are stated in the list of creditors marked A., referred to in the affidavit of , filed on the day of 186 . 6. I have, in the paper writing now produced and shown If Notice to me, marked E., set forth a list of all claims, the parti- ^aued under culars of which have been sent in to me pursuant to the notice referred to in the third paragraph of this affidavit by persons claiming to be creditors of the said Company on the day of , 186 , not appearing on the said list of creditors, marked A,, and who claimed to be entered thereon. And we, C. D. and A. B., for ourselves, say as follows : — 6. We have in the first part of the said paper writing, [Rule 11.] marked D (now produced and shown to us), and also in the first part of the said paper writing, marked E. (also produced and shown to us), respectively set forth such of the said debts and claims as axe admitted by the said Company to be due whoUy or in part, and how much is admitted to be due, in respect of such of the same debts and claims respectively as are not wholly admitted. 7. We have, in the second part of each of the said paper [Rule 11.] writings, marked D. and E., set forth such of the said debts and claims as are wholly disputed by the said Company: 8. In the said exhibits D. and E. are distinguished such of the debts, the full amounts whereof are proposed to be set apart and appropriated in such manner as the judge shall direct. Sworn, &c. Exhibit D. referred to in the last-mentioned Affidavit. D. In the matter, &c., List of debts and claims of which the particulars have been sent in to by persons claiming to be creditors of the said Company for larger amounts than are stated in list of creditors made out by the Company. This paper writing, marked D., was produced and shown to C. C, E. F., and A. B., respectively, and is the same as is referred to in their affidavit sworn before me this day of , 186 . X. Y., &c. First Paet. Debts and Claims wholly or partly admitted by the Company. Names, Addresses, and Descriptions of Creditors. Particulars of Debt or Claim. Amount claimed. Amount admitted by the Company to be owing to Creditor. Debts proposed to be set apart and appropriated in full although disputed. 412 The Companies Act, 1867. Second Part. Debts and Claims wholly disputed by the Company. Names, Addresses, and Descriptions of Claimants. Particulars of Claim. Amount claimed. Debts proposed to be set apart and appropriated in full although disputed. Exhibit E., referred to in the last Affidavit. E. In the matter, &c., List of debts and claims of which the particulars have been sent in to Mr. by persons claiming to be creditors of the Company, and to be entered on the list of the creditors made out by the Company. This paper writing, marked E., was produced and shown to C. D., E. F., and A. B., respectively, and is the same as is referred to in their affidavit, sworn before me, this day of 186 . X. Y., &c., First Pakt. [Same as in Exhibit D.] Second Part. [Same as in Exhibit D.] Note. — The names are to be inserted alphabetically. No. 7. [See Rule 12.] In the matter of the Company, Limited and Reduced ; and in the matter of " The Companies Act, 1867." To Mr. You ai-e hereby required to come in and prove the debt claimed by you against the above Company, by filing your affidavit and giving notice thereof to Mi. , the solicitor of the Company, on or before the day of next ; and you are to attend by your solicitor at the cliambers of [the Master of the RoUs, in the Rolls Yard, Chancery Lane, or the A'ice-Chancellor at No. , Lincoln's Inn], in the county of Middlesex, on the day of ,18 , at o'clock in the noon, being the time appointed for hearing and adjudicating upon the [claim, and produce any sccm-ities or docmnents relating to your claim. General Order of Court. — Tlw Schedule. 413 In default of your complying with the above directions, you will [be precluded from objecting to the proposed reduction of the capital of the Company], or [in all proceedings relative to the proposed reduction of the capital of the Company, be treated as a creditor for such amount only as is set against your name in the list of creditors]. Dated this day of , 18 . A. B., Solicitor for the said Company. No. 8. [See Rule 16.] In the matter of the Company, Limited and Reduced; and in the matter of "The Companies Act, 1867." Notice is hereby given, that a petition presented to the [Lord Chan- cellor] or [the Master of the Rolls], on the day of , for confirming a resolution reducing thQ capital of the above Company from £ to £ , is directed to be heard before [the Vice- Chancellor ] or [the Master of the Rolls], on the day of , 186 . C. and D., of [Agents for E. and F., of J, Solicitors tor the Company. Cairns, C. romilly, m.r. John Stuart, V.C. Richard Maltns, V.C. 414 THE INDUSTRIAL AND PROYIDENT SOCIETIES ACT, 1862 (25 & 26 Vict. cap. 87). An Act to consolidate and amend the Laws relating to Indus- trial and Provident Societies. — \7th August 1862.] [Note. — The associations regulated by this and the following statute, being a species of joint-stock Company, naturally fall within the same branch of law. In many respects an industrial and provident society is similar to a Company limited by shares formed under " The Com- panies Act, 1862," and when it comes to be wound-up all the winding- up provisions of that act become applicable to it. These associations differ from Companies under the Companies Acts in the following parti- culars : No member can hold or claim an interest exceeding 2001. ; their rules and other instruments are exempt from stamp duty ; the members enjoy certain exemptions from income-tax ; facilities are afforded for the settlement of disputes ; and, lastly, the Registrar of Friendly Societies exercises a supervision over them, and obliges them each year to make a detailed return as to their course of business, &c. The jurisdiction ex- ercised by the registrar is probably one of the most valuable features in these associations, and is a safeguard, to a considerable degree, against; evils that sometimes crop up in the ordinary joint-stoci Company. These acts have been largely taken advantage of by co-operative societies formed of working men and others, and there is little doubt that their general effect has been most beneficial.] 15 ^ 16 Vict c. 31—17 ^ 18 Viet. c. 25—19 ^ 20 Vict, c. 40. — ^Whereas by " Tlie Industrial and Provident Societies Act, 1852," it is enacted, that it stall be lawful for any number of persons to establish a society under the provisions thereof and of the therein-recited act, for the purpose of raising by voluntary subscriptions of the members thereof a fund for attaining any purpose or object for the time being authorised by the laws in force with respect to friendly societies or by the said recited act, by carrying on or exer- cising in common any labour, trade, or handicraft, or several labours, trades, or handicrafts, except the working of mines, minerals, or quarries beyond the limits of the united king- dom of Gi'eat Britain and Ireland, and also except the busi- ness of banking, whether in the said united kingdom or elsewhere; and that the said act shall apply to all societies already established for any of the purposes herein mentioned. The Industrial Src, Societies Act, 1862. 415 so soon as they shall conform to the provisions hereof: And whereas by an act passed in the seventeenth and eighteenth years of Her present Majesty, chapter twenty-five, various provisions were made for the better enabling legal proceed- ings to be carried on in any matter concerning the societies formed under the said act of 1852 : and whereas the last- mentioned act was amended by an act passed in the first session of the nineteenth and twentieth years' of Her present Majesty, chapter forty : and whereas various societies have been formed and are now carrying on business under the provisions of the said recited acts, and it is desirable to con- solidate and amend the laws relating to such societies : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assem- bled, and by the authority of the same, as follows : 1. Recited acts repealed. — ''The Industrial and Provident Societies Act, 1852," and the said recited acts for the amendment thereof, are hereby repealed (a) from the passing of this act. (a) Are Tiereby repealed.'] — The acts repealed are 15 & 16 Vict. c. 31 ; 17 & 18 Vict. c. 25 ; and 19 & 20 Vict. c. 40. 2. As to societies registered under recited acts. — ^AU societies registered under "The Industrial and Provident Societies Act, 1852," shall be entitled to obtain a certificate of regis- tration on application to the Registrar of Friendly Societies, and for which certificate no fee shall be payable to the registrar. 3. Constitution of societies under this act. — ^Any number of persons, not being less than seven, may establish a society under this act for the purpose of carrying on any labour, trade, or handicraft, whether wholesale or retail, [except the working of mines and quarries, and] (a) except the business of banking, and of applying the profits for any purposes allowed by the Friendly Societies Acts, or otherwise per- mitted by law. (6) (a) The part of the section within brackets has been repealed by the act of 1867, s. 1, iiost. The exception, therefore, of the working of mines and quarries no longer exists. (6) Otherwise permitted by law.] — ^A society established honafxle partly for benevolent purposes, but also substantially for a purpose not ana- logous to those of friendly societies (viz. the promotion of strikes and other trades-union objects), and including among its rules some in 416 The Industrial, 8fc., Societies Act, 1862. restraint of trade, is not a friendly society within 18 & 19 Vict. c. 63, ss. 9, 24, 44, inasmuch as it cannot be said to be established for a " purpose which is not illegal." The court in this case used the word " illegal " as meaning not enforcible at law, and did not say whether societies, the rules of which were intended to operate in restraint of trade, were criminally illegal or not : (Horvhii v. Close, 15 W. R. Q. B. 336 ; Law Rep. 2 Q. B. 153 ; 16 L. T. 563 ; 36 L. J. M. C. 43.) The element of conspiracy, where it existed, would seem, however, to render a society even criminally illegal. See the judgment of Turner, L. J. (Re Midland Counties Benefit Building Society, 33 L. J. Ch. 739), as to this act applying only to societies, the object of which is combination for labour or trade. 4. Rules. — The rules of every such, society shall contain provisions in respect of the several matters mentioned in the schedule annexed to this act. (a) (a) The schedule annexed to this act/} — The schedule annexed to the " Industrial and Provident Societies Act, 1867," post, has now been substituted for it. 5. Registration of society. {a) — Two copies of the rules shall be forwarded to the Registrar of Friendly Societies of England, Scotland, or Ireland, according to the place where the office of the society is situate, and shall be dealt with by him in the manner provided by " The Friendly Societies Act, 1855," and he shall thereupon give his certificate of regis- tration, and such certificate shall in all cases be conclusive evidence that the society has been duly registered, and thereupon the members of such society shall become a body corporate, by the name therein described, having a perpetual succession and a common seal, with power to hold lands and buildings, with limited liabilitj-. (a) This section has been repealed by the act of 1867, sect. 1, post. It is re-enacted, however, by sect. 4 of that act (which see), with the addition that a society when incorporated shall have "power to pur- chase, erect, and sell, and convey " lands and buUdings. 6. Certificate of registration to vest all property in society now lield in trust for socicti/. — The certificate of registration shall vest in the society all the property(rt) that may at the time be vested in any person in trust for the society ; and all legal proceedings then pending (?>) by or against any such trustee or other officer on account of the society may be prosecuted by or against the society in its registered name without abatement. (fl) All the mopcrhi, .Vr.J— The word "property" used here has been hold to incluili' a chose in action ; and where a bond had been given to trustees for an industrial society registered under 15 & 16 Vict. c. 31 The Industrial, Sfc, Societies Act, 1862. 417 (" The Industrial and Provident Societies Act, 1852 "), it was held that the certificate of registration under this act vested it in the society, and that the society could sue on it, in its corporate name, for breaches of the condition subsequent to the registration : (Queensbiiry InduMrial Society v. Pickles, Law Rep. 1 Ex. 1 ; 3 H. & C. 867 : 35 L. J. Ex. 1 : 13 L. T. N. S. 295.) (6) All legal proceedings then pending, ^c] — An industrial and provi- dent society re^tered under this act is not liable to be sued in its cor- porate capacity in an action commenced after its registration, for a debt incurred previously thereto : (Linton v. Blakeney Joint Co-operative Industrial Society, 3 H. & C. 853 ; 34 L. J. Ex. 211. See Dean v. Mellard, 32 L. J. C. P. 282.) 7. Copy of rules to he delivered to persons on demand. — A copy of the rules shall be delivered by the society to every person^ on demand, on payment of a sum not exceeding one shilling. 8. No society to he registered hy same name as that of any existing society. — No society shall be registered under a name identical(a) with that by which any other existing society has been registered, or so nearly resembHng such name as to be likely to deceive the members or the public, and the word " limited " shall be the last word in the name of every society registered under this act. (a) Under a name identical, ^c] — See p. 50, ante. 9. Memhers' interests limited to 2001. (a) (a) This section has been repealed by the act of 1867, s. 1, post. Sect. 2 of that act, however, re-enacts it. 10. Publication of name hy a society .-^-'SWery society registered under this act shall paint or affix, and shall keep painted or affixed, its name on the outside of every office or place in which the business of the society is carried on, in a conspicuous position, in letters easily legible, and shall have its name engraven in legible characters on its seal, and shall have its name mentioned in legible characters in all notices, advertisements, and other official publications of such society, and in aU bills of exchange, promissory notes, indorsements, cheques, and orders for money or goods pur- porting to be signed by or on behalf of such Company, and in all bills of parcels, invoices, receipts and letters of credit of the society. 11. Penalties on non-puhlication of name, 8fc. — If any society under this act (a.) does not paint or affix, and keep painted or affixed, its name in manner directed by this act^ E E 418 The Industrial, 8^c., Societies Act, 1862. it shall be liable to a penalty not exceeding five pounds for not so painting or affixing its name, and for every day during wliich sucli name is not so kept painted or affixed ; and if any officer of such society or any person on its behalf uses any seal purporting to be a seal of the society whereon its name is not so engraven as aforesaid, or issues or authorises the issue of any notice, advertisement, or other official pub- lication of such society, or signs or authorises to be signed on behalf of such society any bill of exchange, promissory note, indorsement, cheque, order for money or goods, or issues or authorises to be issued any bill of parcels, invoice, receipt, or letter of credit of the society wherein its name is not mentioned in manner aforesaid, he shall be liable to a penalty of fifty pounds, and shall further be personally liable to the holder of any such bill of exchange, promissory note, cheque, or order for money or goods, for the amount thereof, unless the same is duly paid by the society. (a) If any society under this act, Sfc] — This section is identical in its provisions with sect. 42 of " The Companies Act, 1862," p. 122, ante. 12. Every society to have a registered office — Penalty on default. — Every society under this act(a.) shaU have a re- gistered office to which all communications and notices may be addressed : If any society registered under this act carries on business without having such an office, it shall incur a penalty not exceeding five pounds for every day during which business is so carried on. (a) Every society under this act, ^-c] — See p. 120, ante. 13. Notice of situation of registered office. — iSTotice of the situation of such registered office, and of any change therein, shall be given to the registrar, and recorded by him : Until such notice is given the society shall not be deemed to have complied with the provisions of this act. 14. Signature, and effect of rules. — The rules of every society(a) registered under this act shall bind the society, and the members thereof, to the same extent as if each member had subscribed his name and affiLxed his seal thereto, and there wore in such rules contained a covenant on the part of himself, his heirs, executors, and administra- tors, to conform lo sucli rules subject to the provisions of this act ; and all moneys payable by any member to the society iu pursnanco of such rules shall be deemed to be a (l(^l)t (lu(> from such member to the society. The Industrial, Sfc, Societies Act, 1862. 419 (a) The rules of every society, Sj-c.'] — Sect. 16 of " The Companies Act, 1862 " (p. 30, ante) corresponds to this. 15. Application of Friendly Societies Acts to this act. [a) — The provisions of tlie Friendly Societies Acts shall apply to societies registered under this act in the following particulars : Exemption from stamp duties and income tax : Settlements of disputes by arbitration or justices : Compensation to members unjustly excluded : Power of justices or County Courts in case of fraud : Jurisdiction of the registrar. (a) This section has been repealed by the act of 1867, sect. 1, post. Its provisions, however, are substantially re-enacted by sects. 3, 12, and 13 of that act. 16. Power to member to nominate persons into whose name his interest may be transferred at his death.{a) — The pro- visions of "The Friendly Societies Act, 1854," whereby a member of any society registered thereunder is allowed to nominate any persons to whom his investment in such society shall be paid, shall extend, in the case of societies registered under this act, to allow any member thereof to nominate any persons into whose name his interest in such society at his decease shall be transferred : Provided, never- theless, that any such society may, in lieu of making such transfer, elect to pay to any persons so nominated the full value of such interest. (a)- This section has been repealed by "The Industrial and Provident Societies Act, 1867," s. 1, post. Sect. 5, however, of that act contains provisions substituted for those contained in it. 17. As to the winding-up of societies. — Any society regis- tered under this act(a) may be wound-up either by the court(&) or voluntarily (c) in the same manner and under the same circumstances under and in which any Company may be wound-up under any acts or act for the time being in force for winding-up Companies ; and all the provisions of such acts or act(cZ) with respect to winding-up shall apply to such society, with this exception, that the court having jurisdiction in the winding-up shall be the County Oourt(e) of the district in which the office of the society is situated. (/) (a) Any society registered under this act, Sfc.'\ — A society cannot be wound-up under this act unless it is registered imder it, but it appears that a society which may and ought to register under it cannot be wound- up without doing so. E E 2 4.20 The Industrial, Sfc, Societies Act, 1862. An industrial society was duly registered under " The Industrial and Provident Societies Act, 1852 " ; which act has been repealed by sect. 1, supra. In November, 1862, before the society had been re-registered, an order for winding-up the society was made by the Court of Chancery under "The Companies Act, 1862." In June, 1864, the society was registered under this act. On a motion to discharge the order for winding-up, it was held that the Court of Chancery had no jurisdiction to make the order, and that it must be set aside accordingly : (Re Chatham Co-operative Industrial Society, 33 L. J. Ch. 737, on appeal ; 10 Jur. N. S. 983 ; 10 L. T. N. S. 842.) See, also, Re Rotherhithe Co-opefative and Industrial Society, 32 Beav. 57 ; 7 L. T. N. S. 305. It has been held, however, that benefit building societies are quite distinct from friendly, and also from industrial or provident societies, and that this act does not include them. They may be wound-up by the Court of Chancery under " The Companies Act, 1862 :" {Re Midland Counties Benefit Building Society, 33 L. J. Ch. 520, 739.) In considering this section, sect. 199 of "The Companies Act, 1862," p. 271, ante, should not be lost sight of. (6) By the court-l — See p. 162, ante. (c) Voluntarily.'] — See p. 217, ante. (d) All the provisions of such acts or act, |-c.] — See Part IV. of "The Companies Act, 1862," beginning p. 147, ante. No appeal lies to a common-law court from the County Court, in respect of an order made in exercise of its powers in a winding-np pro- ceeding under this section : (Henderson v. Bamber, 19 C. B. N. S. 640 ; 35 L. J. C. P. 65. See this case, also, as to whether the County Court, under the authority conferred upon it by this statute, has power to make an order restraining proceedings in the Liverpool Passage Court against a member of an industrial society registered under this act, which is being wound-up in the County Court by virtue of the jurisdiction conferred upon it by this section. See, also. Gray v. Raper (Law Rep. 1 C. P. 694), p. 277, ante. (e) Shall be the County Court, ^-c] — The Court of Chancery has no jurisdiction to wind-up under " The Companies Act, 1862," any asso- ciation that comes within the scope of this act. See the cases in note (a), supra. (/) In which the office of the society is situated.'} — See p. 120, ante. 18. Dissolution of society not to 2^''f'i-'c»t winding-up of Us affairs. — In case of the dissolution of any such society^ such society shall nevertheless be considered as subsisting, and be in all respects subject to the provisions of this act, so long and so far as any matters relating to the same remain unsettled, (rt) to the intent that such society may do all things necessary to the wiuding-up of the concerns thereof, and that it may be sued and sue, under the provisions of this act, in respect of all iTiatters relating to such society. (h) MiUtcm rt'latiiiti to the same remain iin.^ettled.] — The rules of a pri- The Industrial, Sfc, Societies Act, 1862. 421 vate society in the nature of a friendly society, tlie funds of which were furnished partly by the members, and partly by non-members, provided that the interest of the funds should alone be applied towards its pur- poses. No provision was made for the ultimate distribution of the capital. A sole surviving member of the society filed a bill for payment to her of the capital of the fund. It was ordered that the income of the fund should be paid to her during her life, with liberty to apply at her death, and notice of the application to be given to the Attorney- General : (Spiller V. Maude, 11 L. T. N. S. 329.) 19. Provisions of Joint-Stoch Companies Acts to apply. — The provisions of tlie Joint- Stock Companies Acts as to bills of exchange (ft) and the admissibility of the register of shares (fe) in evidence shall apply to all societies registered under this act. (a) As to bills of exchange.'] — See "The Companies Act, 1862," s. 47, p. 125, ante. (6) The admissibility of the register of shares, §-c.] — " The Companies Act, 1862," s. 37 (p. 116, ante^, makes the register of members evi- dence. Such register should contain a statement of the shares held by each member (see sect. 25 of the act), but it is not termed in the act a register of shares. 20. Liability of present and past members of society. — In the event of a society registered under this act (a) being wound-up, every present and past member of such society shall be liable to contribute to the assets of the society to an amount sufficient for payment of the debts and liabilities of the society, and the costs, charges, and expenses of the winding-up, and for the payment of such sums as may be required for the adjustment of the rights of the contributories amougst themselves, with the qualifications following ; (that is to say,) (1.) No past member shall be liable to contribute to the assets of the society if he has ceased to be a member for a period of one year or upwards prior to the com- mencement of the winding-up : (2.) No past member shall be liable to contribute in respect of any debt or liability of the society contracted after the time at which he ceased to be a member : (3.) No past member shall be liable to contribute to the assets of the society unless it appears to the cour4 that the existing members are unable to satisfy the contributions required to be made by them in order to satisfy all just demands upon such society : (4.) No contribution shall be required from any member exceeding the amount (if any) unpaid on the shares 422 The Industrial, ^c, Societies Act, 1862. in respect of wticli lie is liable as a past or present member. (a) A Dociety reqistered under this act.'] — See " The Companies Act, 1862," s. 38, p. 116, ante. 21. Society may be- constituted under Go^npanies Acts. — Any society registered under this act may be constituted a Company under the Companies Acts, by conforming to the provisions set forth in such act, (a) and thereupon shall cease to retain its registration under this act. (a) The provisions set forth in such act.] — See p. 3, ante. 22. Members m,ay inspect boolis. — Every person or mem- ber having an interest in the funds of any society registered under this act may inspect the books and the names of the members at all reasonable hours at the office of the society. 23. Sheriff's jurisdiction in Scotland. — The sheriff in Scotland shall within his county have the Hke jurisdiction (a) as is hereby given to the judge of the County Court in any matter arising under this act. (a) The like jurisdiction, Sj-cJ — See Brodie v. Johnson, 30 Beav. 129. 24. Annual returns to be prepared as registrar may direct. — A general statement of the funds and effects of any society registered under this act shall be transmitted to the registrar once in every year, and shall exhibit folly the assets and liabilities of the society, and shall be prepared and made out within such period, (a) and in such form, and shall comprise such particulars (&) as the registrar shall from time to time require j and the registrar shall have authority to require such evidence as he may think expedient of all matters required to be done, and of all documents required to be transmitted to him under this act ; and every member of or any depositor in any such society shall be entitled to receive, on application to the treasurer or secretary of that society, a copy of such statement, without making any payment for the same. (a) Within such period.'] — See sect. 9 of the act of 1867, post, as to the time within which the returns under tliis section must be made. (ft) In such form, and shall comprise stick parHcidars, ffc] — ^In the beginning of ovory year the registrar sends to each registered society a form in duphcate containing a series of questions as to the particulars ho requires ; thoso questions have to be answered and one copy returned lo the registrar on or before the 1st of March, the other retained by tlu- Bocicly. The following is (he form that was sent in the present year : — The Industrial, Sfc, Societies Act, 1862. 423 General Statement of the Funds and Eifeots of the Society (Limited), held at , in the county of , from Jan,iiary 1, to December 31, 1868. Eeg. No. 1. In what year was your society esta- blished? 2. In what year did it first obtain a certificate of registration ? 3. State in full the address of 70ur re- gistered office or place of business. * i. What trade or trades are carried on by your society ? 5. Do you take credit on purchase of goods ? If so, what length of time do you in general take ? 6. Do you require ready money for goods sold to members? If not, what length of time do you in general allow for payment ? 7. If you give credit to members, what percentage does it in general bear to their unpaid shares ? And does it in general exceed them ? 8. Do you give credit on sale of goods to non-members ? If so, what amount and what length of time do you allow for payment ? 9. Is your society insured ? If so, to what amount on buildings, and what amount on stock-in-trade, and in what office or offices ? stating the amount insured in each. 10. How often, and when, do you take stock, balance your accounts, and declare your dividends? H. Are your accounts audited by mem- bers or non-members? And are they public accountants ? 12. What was the exact number of members in your society at the end of the year 1868? 13. What number of members were ad- mitted into your society during the year 1868 ? 14. What number of members withdrew from your society during the year 1868? 424 The Industrial, ^c, Societies Act, 1862. Eeg. No. 16. State the amount of each share. 16. What is the amount of your share capital at the end of the year 1868, including interest due thereon ?* 17. What amount (including cash in- vested, interest on share capital, and dividend declared due to members) has been credited or added to your share account during the year 1868 ?' 18. What amount (including cash, in- terest, and dividend, also forfeits, if deducted from share capital) has been debited to or withdrawn from your share account during the year 1868 ?" 19. What is the amount of your loan capital at the end of the year 1868, including interest due thereon ?* 20. What amount (including interest due thereon) has been credited to, or added to your loan capital during the year 1868?* 21. What amount (including cash and interest), has been debited to or withdrawn from your loan capital during the year 1868?* 22. What is the amount of cash paid for goods during the year 1867 ?(o) Ton must include raw material, inward carriage, cartage, wages paid for goods made or mapufao- tured by your society, together with the amount owing for those items at the end of the year 1867, and deduct therefrom the amount owing for those items at the end of the year 1868.* 23. What is the amount of cash received for goods sold during the year 1868 ? If your society allows credit on the sale of goods, include the amount owing for goods, at the end of 1868, and deduct from their sum total the amount owing for goods at the end of 1867."' 24. State the total amount owing by your society on December 31, 1868, for goods or expenses." (a) Sic, The Industrial, 8fc., Societies Act, 1862. 425 Eeg. No. 25. What was the average amount of your stock-in-trade during the year 1868 ? 26. State the total amount of your ex- penses for the year 1868, whether paid or owing. You must include all wages and salaries (but not wages paid for making and manufactur- ing goods), also gas, water, rents, rates, taxes, insurance, books, sta- tionery, and other miscellaneous expenses; also interest (Question 20), and depreciation of buildings, and using fixtures ; and deduct all interest due on, or received from, your investments in other societies or banks, together with the ex- penses owing by you at the end of 1867.* 27. What is the total amount of interest declared due on share and loan capital, including reserve or any other fund which may be credited with interest during the year 1868 ?• State the total amount allowed for depreciation of buildings, fixtures, utensils, land, and cottages, during the year 1868.* 29. What is the amount of your entire liabilities on the 31st of December, 1868? Tou must include share and loan capital, with interest due thereon, together with the total amount owing for goods and ex- penses.* 30. Have you a reserve fund of any kind? If so, state the amount thereof. 31. What is the amount of your entire assets at the end of 1868, after making due allowances for depre- ciation of buildings and using fix- tures ?* 2. What is the total value of your buildings, fixtures, or utensils, to- gether with land and cottages, ,if any?* Have you any share or loan capital invested in other co-operative societies which are registered under "The Industrial and Provident Societies Act " ? If so, state what amount.* 426 The Industrial, 8fc., Societies Act, 1862. Eeg. No. 84. Have you any share or loan capital invested in any other society or Oompany registered under the Joint Stock Companies Act ? If so, state what amount.* 35. What amount of disposable net pro- fit has your society realised from all sources during the year 1868, after making due allowance for interest on shares, loans, and reserve fund, together with depreciation of build- ings and using fixtures ?* 36. What amount of dividend has been declared due to members during the year 1868 ? 37. State the amount of dividend al- lowed to non-members during the year 1868. State the amount allowed for educa^ tional purposes during the year 1868. * In the answers made to the registrar, societies should give totals only, and not details. :} ^''"of'th"''^'"' > Treasurer. committee. ■* ^' 25. Recovery of penalties. {a) — ^AU penalties imposed by tMs act, or by the rules of any society registered under this act, may be recovered in a summary manner before two justices, as directed by an act passed in the eleventh and twelfth years of the reign of Her present Majesty Queen Victoria, chapter forty-three, intituled An Act to facilitate the Performance of the Duties of Justices of the Peace out of Sessions within England and Wales with respect to summary Oonvictions and Orders. (a) This section has been repealed by " The Industrial and Provident Societies Act, 1867," s. 1. See, however, sect. 6 of that act with regard to the recovery of penalties. 26. Shoft title. — This act may be cited(a) as " The In- dustrial and Provident Societies Act, 1862." (n) This act matj he cited, iW-.] — This act is now incorporated with " The Industrial aiid Provident Societies Act, 1867," post, and both may now be cited lunjor tlio name of the latter act. The IndMstrial, 8j-e., Societies Act, 1862. 427 Schedule of Matters to be provided for in the Eiiles.(a) 1. Object and name, and place of oflGice of the society, which must in all cases be registered as one of limited liability. 2. Terms of admission of members. 3. Mode of holding meetings and right of voting, and of making or altering rules. 4. Determiaation whether the shares shall be transferable, and in case it be determined that the shares shall be transferable, provision for the form of transfer and registration of shares and for the consent of the committee of management and coniirmation by the general meeting of the society ; and in case shares shall not be transferable, provision for paying to members balance due to them on withdrawing from the society. 5. Provision for the audit of account. 6. Power to invest part of capital in another society ; provided that no such investment be made in any other society, not registered under this act, or the Joint-Stock Companies Act, as a society or Company with limited liability. 7. Power and mode of withdrawing from the society, and provisions for the claims of executors, administrators, or assigns of members. 8. Mode of application of profits. 9. Appointment of managers and other ofiicers, and their respective powers and remuneration. (a) The schedule annexed to " The Industrial and Provident Societies Act, 1867," post, is now substituted for this. 428 THE INDUSTRIAL AND PROVIDENT SOCIETIES ACT, 1867 (30 & 31 Vict. cap. 117). An Act to amend the Industrial and Provident Societies Acts.— \2(ith August imi .'] Whereas by " The Industrial and Provident Societies Act, 1862," "The Industrial and Provident Societies Act, 1852," and certain therein-recited acts for the amendment thereof, were repealed, and provision was made for the constitution and regulation of such societies in future : And whereas doubts having arisen as to the effect of the said act in certain cases, it is expedient that the same should be removed, and that the provisions so made should be amended in other respects : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same, as foUows : 1. Sect. 48 of 18 Sf 19 Vict. c. 63, and sects. 5, 9, 15, 16, and 25 of 25 Sf 26 Vict. c. 87, repealed.'\ — There shall be repealed, from and after the passing of this act, the forty- eighth section of the eighteenth and nineteenth Victoria, chapter sixty-three, and the fifth, ninth, fifteenth, sixteenth, and twenty-fifth sections of the recited act, and so much of the third section as excepts the working of mines and quarries from the objects for which any society may be established under the act. 2. Limitation ofinteintt of mcmhers. — ^A society registered under this act may hold in its registered name any amount of interest in any other society so registered, but if any other person hold or claim in any society so registered any interest exceeding two hundred pounds sterling, such person shall incur a penalty equal to the excess of such interest over the said sum. The Industrial, Sfc, Societies Ad, 1867. 429 3. Provisions of the Friendly Societies Acts applied to in- dustrial and provident societies — 18 Sf 19 Vict. c. 63, s. 24 — 18 ^ 19 Vict. 0. 63, ss. 41, 42, 43, and 21 Sf 22 Vict. c. 101, s. 1—18 ^ 19 Vict. c. 63, s. 30—18 ^ 19 Vict. c. 63, s. 37— 21 Sf 22 Vict. c. 101, s. 4. — The provisions following con- tained in the acts undermentioned relating to friendly societies shall apply to all societies registered under this act, and no such provision shall be affected in its application to such societies by its repeal in regard to friendly societies, unless the contrary be expressly declared by the act repeal- ing the same ; and in applying such provisions words con- cerning the trustee of any society shall be taken to apply to the society, except the context precludes such construction ; (that is to say,) So much of "The Friendly Societies Acts, 1855 and 1858," as relates to — The punishment of fraud (a.) in withholding any money or other property belonging to any society : The determination of disputes by the County Courts in England, (6) the Sheriffs Court in Scotland, (c) and the assistant barrister in Ireland, and the orders and proceedings for this purpose : The reception of rules and other instruments in evi- dence : The exemption of rules and other instruments from stamp duty : The power to any society to change its name. (a) The punishment of fraud, ^c] — Where an oflSoer of a friendly society received as such officer moneys belonging to the society, and after- wards executes an assignment for the benefit of his creditors, but the specific moneys received by the officer in his official capacity are not traced to the assignees, they are not liable to the provisions of 18 & 19 Vict. c. 63," s. 24, if they refuse to pay to the society the .amount of such moneys : (Ex parte O'Donnell, 14 W. K. 83, Q. B.) (6) The County Courts in England.'] — By sect. 41 of " The Friendly Societies Act, 1855 (18 & 19 Vict. c. 63), jurisdiction is given in certain cases to the County Court of the district in which the usual or principal place of business of the society is situated ; and it was held that the County Court of any district in which any usual place of business of the society is situated, and not only that in which its principal place of business is situated, has jurisdiction under the act : \Shea v. United Assurance Society of St. Patrick, Law Kep. 3 C. P. 21.) See, also. Minor v. London and North- Western Railway Company 1 C. B. N. S. 325 ; 26 L. J. C. P. 39, and p. 121, ante. A rule of a friendly society provided that a dispute of any kind what- soever arising under the rules should be referred to a committee. By another rule any member in the receipt of the gifts of the society being 430 The Tndm,strial, Sfc, Societies Act, 1867. found imposing on" the society was to be expelled. A member of the society in the receipt of pay was charged with receiving full pay when he was only entitled to half -pay, and the matter being referred to a com- mittee he was expelled, but without being heard before the committee. Upon application for a mandamus to reinstate him as a member of the society, it was held that the County Court had jurisdiction, under 1^ & 19 Vict. c. 63, 8S. 41, 42, to order him to be reinstated, if he had been improperly expelled : (Ex parte Wooldridge, 1 B. & S. 844 : 5 L. T. N. Sl 609 ;'31 L. J. Q. B. 122.) (c) The Sheriff's Court in Scotland.'] — Some members of a Scotch society having sought relief before the sheriff, the defendants pleaded to the jurisdiction, whereupon the sheriff directed a case to the Court of Chancery, under 22 & 23 Vict. c. 63, to ascertain whether that court had jurisdiction in such a case in England. It was held, that the case did not come within the statute, and the court declined to express its opinion : (Brodie v. Johnson, 30 Beav. 129.) See, also, on the subject of the settlement of disputes, Hornby v. Close, Law Rep. 2 Q. B. 150 ; Farmer v. Giles, 5 H. & N. 753 ; Morrison V. Glover, 4 Exch. 430 ; CutUU v. Kingdom, 1 Exch. 494 ; Kelsallv. Tyler, 11 Exch. 513 ; Reg. v. Trafford, 4 E. & B. 122; Fleming v. Self, 3 De G. Mac. & G. 997 ; Smith v. Lloyd, 26 Beav. 507 ; Crisp v. Bunbury, 8 Bing. 394 ; Reeves v. White, 17 Q. B. 995 ; Reg. v. Mildenhall Savings Bank; 6 A. & E. 952 ; Timms v. Williams, 3 Q. B. 413. 4. Certificate of registration. — Two copies of the rules shall be forwarded to the Registrar of Friendly Societies (a) of Bnglandj Scotland, or Ireland, according to the place where the office of the society is situate, and shall be dealt with by him in the manner provided(&) by "The Friendly Societies Act, 1855," and he shall thereupon gjve his certificate of registration, and such certificate shall in aU cases be con- clusive evidence that the society has been duly registered, and thereupon the members of such society shall become a body corporate (c) by the name therein described, having a perpetual succession and a common seal,((i) with power to purchase, erect, and sell, and convey, (e) or to hold lands and buildings with limited liability. (o) The Registrar of Friendly Societies, §r.] — ^The office of Registrar of Friendly Societies is provided for by "The Friendly Societies Act, 1855 " (18 & 19 Vict. c. 63), ss. 6—8. (6) Shall be dealt with by him in the manner provided, §-c.] — " The Friendly Societies Act, 1855 " (18 & 19 Vict. c. 63), s. 26, provides as follows : — " Two printed or written copies of such rules, signed by three of tho intended members, and the secretary or other officer shall be trans- mitted to the registi-ar aforesaid, and the said registrar shall advise with the secretary or other officer, if required for the purpose of ascertaining whether tlie said rules ai'e calculated to carry into effect the intentions and object of the pei-sons who desire to form such society, and if the regis- trar shall find that such rules are in conformity with law and with the provisions of this act ho shall give a certificate in the form set forth in tlie.spcond schedule to tliis :ict, and shall return one of the said copies to The Industrial, Sfc, Societies Act, 1867. 431 the said society, and sliall keep the other in such manner as shall from time to time be directed by one of Her Majesty's Principal Secretaries of State, and for which certificate no fee shall be payable to the said regis- trar ; and all rules when so certified as aforesaid shall be binding on the several members of the said society : Provided always, that it shall not be lawful for the said registrar to grant any such certificate to a society assuring to any member thereof a certain annuity or certain super- annuation, deferred or immediate, unless the tables of contributions payable for such kind of assurance shall have been certified under the hand of the actuary to the commissioners for reduction of the national debt, or by an actuary of some life-assurance Company established in London, Edinburgh, or Dublin, who shall have exercised the profession of actuary for at least five years, and such certificate be transmitted to the registrar, together with the copies of the rules aforesaid." (c) The members of such society shall become a body corporate.J — As to a body corporate, see p. 33, ante. An industrial society, formed with unlimited liability under the act of 1852, becomes, upon registration under the act of 1862, or as it would now be termed "The Industrial and Provident Societies Act, 1867," a society with limited liability. F. was the holder of fully paid-up shares in an industrial society formed, with unlimited liability, under " The Industrial and Provident Societies Act, 1852 " (15 & 16 Vict. ,c. 31). After the passing of the act of 1862 which repeals the act of 1852, the society, being in difficulties, was regis- tered under that act for the purpose of being wound-up, it having been hfeld that a winding-up order could not be made under the repealed act. Upon motion to settle the list of contributories, it was held that F.'s name must be omitted, notwithstanding there were debts contracted before the registration of the Company under the later act : (Re Sheffield and Hallamshire Ancient Order of Foresters' Co-operative and Industrial Society, Fountain and Swift's case, 34 L. J. Ch. 693, on appeal.) Goods were supplied to a society before the passing of the act of 1862, and the society was afterwards registered under the act. In an action commenced in 1863 against the committee of management for the value of the goods, it was held that the action was rightly brought, the act having by the repeal of former acts (under which the officers of the society might be sued), restored the plaintiff's common-law right, and the proviso in the 6th section including only proceedings then pending, and not claims or rights of action : (Dean v. Mellard, 15 C. B. N. S. 10 ; 10 Jur. N. S. 346J. The trustees of a society formed under 15 & 16 Vict. c. 31, but not registered under the act of 1862, cannot be sued in an action commenced after the passing of this act, as the previous act is absolutely repealed by it without any saving clause: (Touthill v. Douglas, 33 L. J. Q. B. 66.) See, also, Linton v. Blakeney Joint Co-operative Industrial Society, 3 H. & C. 853; 34 L. J. Ex. 211. A society based upon irrational principles, and seeking to rea,lise a visionary and unattainable object under a newly-invented system of morality, was held not to be founded for the propagation of irreligious and immorjd doctrines, so as to prevent a creditor from recovering his debt : (^Pare v. Clegg, 29 Beav. 589.) It was decided in the same case that the rules, as certified by the registrar, must be treated as conclusive as to the character of the society. (d) A common seal.'] — See p. 48, ante, as to the common seal of a corporation. 432 The Industrial, Sfa., Societies Act, 1867. (c) To purchase, erect, and sell and convey, Sec.'] — ^These words were not in the corresponding section (sect. 5, repealed by this act) of the act of 1862. 5. Power to nominate persons unto whose name the interests of members may be transferred at their death. — ^A member of any society (a) registered under this act may, by any writ- ing under Ms band delivered at the registered office of the society, appoint any person being the husband, wife, father, mother, child, brother, sister, nephew, or niece of such member, to whom his shares in the society shall be trans- ferred at his decease, provided that the sum credited to the account of such member in the books of the society does not exceed fifty pounds sterling, and may from time to time revoke or vary any such nomination by a writing under his hand similarly delivered ; and the secretary of every such society shall keep a book wherein the names of all persons so nominated shall be regularly entered, and the shares comprised in any such nomination shall be transferable to the nominee, although the rules of the society declare its shares to be generally not transferable : Provided, never- theless, that the society may, in lieu of making such transfer, elect to pay to any nominee the full value of the shares comprised in the nomination to him, and shall pay him the full value of any such shares which, if transferred into his name, would increase his interest in the society to an amount exceeding two hundred pounds sterling. (a) A member of any society, ^-c. — T)iis section is substituted for sect. 16 of the act of 1862, which is repealed. 6. Recovery of penalties. [a) — All penalties imposed by "The Industrial and Provident Societies Act, 1862," or by this act, or by the rules of any society registered under the said act, shall be recoverable, with costs, and dealt with in a manner directed by the Friendly Societies Act, in regard to the penalty thereby imposed, on any default in trans- mitting the returns thereby required, and at the suit of the registrar in the case of penalties imposed by the recited act or by this act, or in the case of penalties imposed by the rules of any society so registered at the suit of the society. (a) This section has been substituted for sect. 26 of the act of 1862. 7. Alterations of or addifioiis to rules to be registered — Declarafiovs to nrrompany copien. — Two copies of every alteration of or addition to the rules(a) of every society registered under this act, signed by seven members of the The Industrial, Spa., Societies Act, 1867. 433 society and countersigned by the secretary, shall be sent to the registrar for his certificate of registration, and shall be accompanied by a declaration in the form contained in the . schedule hereto annexed ; and no alterations of or additions to the rules of any society registered under this act, made after the passing hereof, shall be valid until they are so certified. (a) Every alteration of or addition to the rules, ^c] — There was no pro- vision in the act of 1862 for altering the old rules or maldng new rules after the society was registered. 8. Form of certificate. — The registrar shall give his cer- tificates respectively in the forms contained in the said schedule in the cases thereto mentioned. 9. Penalties on not sending returns, Sfc. — ^AU returns re- quired (a) under the 24th section of the recited act to be made to the Registrar of Friendly Societies shall be sent to him by each society registered thereunder on or before the first day of March in every year ; and every such society which does not send any such return, or furnish copies thereof, or of its rules, as is required by the recited act or hereby, shall incur a penalty not less than forty shillings nor exceeding five pounds for each such ofience ; and every person who makes or orders to be made any false statement or any omission in any such return, with intent to deceive the registrar, shall incur a penalty not exceeding fifty pounds sterHng for each return so dealt with. (a) All returns required, Sfc.'] — See p. 422, ante, 10. Fo7-m of rules provided as moved.'] — The form of rules contained(a) in the schedule hereto may be adopted by any society desirous of being registered under this act^ either without any addition or with any additions or alterations agreeable to law. (a) The form of rules contained, ^-c] — Whatever may have been the good intentions of the Legislature with regard to supplying a form of rules, they have not, up to the present, been carried into effect. 11. Societies established previous to recited act to be deemed to be established from registration under either act. — Every society established previous to the passing of the recited act for any of the purposes in such act mentioned shall be deemed to be a society established under such act from the registration of such society under the provisionsof the recited act or of this act. 4134 The Industrial, Sfc, Societies Act, 1867. 12. Exemption from income tax. — A society registered under this act, and not allowing any member thereof to hold • or claim any interest therein or moneys therefrom exceeding in value the sum of two hundred pounds, shall not be chargeable with the duty under Schedule (C.) or Schedule (D.) of the income-tax acts : Provided that the above ex- emption shall not be construed to relieve any member of such society, or person employed by such society, to whom any portion of the profits of the society shall be paid, from assessment to the said duties in respect of such payment in any case in which the total income of such member or other person, inclusive of his portion of the said profits, shall amount to the sum of one hundred pounds or upwards. 13. Lists to he returned to commissioners for special purposes containing the names, 8j-c. of persons entitled to profits. — The secretary or other managing officer of any society registered under this act shall, within twenty-one days after the sixth day of April in every year, transmit to the commissioners for special purposes of the income-tax acts a list containing the name and residence of every member of such society or other person to whom profits made by the society have been paid or shall be payable within or for the year ended on the fifth day of April preceding, and the amounts paid or payable to each member or other person, and thereupon the special commissioners shall take the necessary steps for charging the said duties, under the regulations of the income- tax acts, on such of the said persons as may be liable thereto ; and any secretary or other officer of any such society who shall neglect to make out and deliver to the commissioners for special purposes, within the time specified by this act, a Hst containing the particulars hereby required, shall forfeit and pay the sum of fifty pounds, to be recovered ia like manner as penalties imposed for Uke default by the income- tax acts. 14. Short title — Construction of act. — The recited act, so far as it is not hereby repealed, shall be incorporated (a) with this act, and may be cited with it as " The Industrial and Provident Societies Act, 1867," and the schedule hereto annexed shall be substituted for the schedule thereto ; all societies registered under the recited act shall be taken to be registered under this act ; and in construing the recited act and this act provisions relating to the rules or name of any society shall apply to the registered rules and name The Industrial, Sfc, Societies Act, 1867. 435 thereof for the time being, and tte registrar shall mean the Registrar of Friendly Societies for England, Scotland, or Ireland, according to the place where the office of the society is situate. (a) Shall be incorporated, Sfc.'] — The two acts now come under one denomination and may be cited as a single act. Schedule referred to in this Act. Of Matters to te provided for hy the Rules of Societies established under this Act. 1. Object, name, and place of office of the society. 2. Terms of admission of members. 3. Mode of holding meetings and right of voting, and of making or altering rules. 4. Determination whether the shares, or any number thereof, shall be transferable, and in case it be determined that the shares, or any number thereof, shall be transferable ; provision for the form of transfer and registration of shares, and for the consent of the committee of manage- ment and confirmation by a general meeting of the society ; and in case it be determined that the shares shall not be transferable, provision for paying to members the balance due to them on withdrawing from the society. 5. Provision for the audit of accounts. 6. Determination whether and by what authority any part of capital may be invested in or on the security of another society, provided that no such investment be authorised in any society not registered under this act, or under the Companies Act as a Company with limited liability. 7. Determination whether and how members may withdraw from the society, and provisions for the claims of executors, administrators, or assigns of members and for paying nominees in the case herein mentioned. 8. Mode of application of profits. 9. Appointment of managers and other oflficers, and their respective powers and remuneration. 10. Provisions for the custody, use, and device of the seal of the society, which shall in aU cases bear the registered name thereof. FoEMS OF Certificate to be given under this Act. Certificate of Registration of a Society. I, Registrar of Friendly Societies in [England, Scotland, or Ireland] hereby certify that the Society, limited, established at in the county of is registered under " The Industrial and Provident Societies Act, 1867." Given under my hand this day of 18 . _Biegistear of Friendly Societies. IT 2 436 The Industrial, ^c, Societies Act, 1867. Certificate, to follow Rules upon the Registration of a Society established under this Act. I hereby certify that the foregoing rules of the Society, Limited, axe in conformity with law, and that the said society is duly established fjrom the present date, and is subject to the provisions and entitled to the privileges of the acts relating to Industrial and Provident Societies. Day of 18 . Registrar of Friendly Societies. Certificate of Alterations of Rules. I, Registrar of Friendly Societies in [England, Scotland, or Ireland,] do hereby certify that the foregoing alterations of [or addi- tions to], the rules of the Society, Limited, established at in the county of are in conformity with law, and are registered from the present date under the Industrial Societies Act. Given under my hand this day of 18 . Registrar of Friendly Societies. Certificate' of changed Name. I, Registrar of Friendly Societies in [England, Scotland, or Ireland,] hereby certify that the registered name of the Society, Limited, estabhshed at in the county of is changed from the date thereof to the name following, — Society, Limited, and is in accordance with the Industrial and Provident Societies Acts. Given under my hand this day of Registrar of Friendly Societies. Form of Declaration to accompany Alterations of or Additions TO Rules. Register No. . r _^ Society, (State Street, Parish, I Limited, established at and County of Place < of Business.) / I, of the derk* of the above-mentioned society, do solemnly and sincerely declare that in the altering, amending, or rescinding the i-ules of the said society, or making new rules {as the case may be), the rules of tlie said society have been duly complied with. And I make this solemn declaration, conscientiously believing the * Ssorstary, or on* of th« officers. The Industrial, Sfc, Societies Act, 1867. 437 same to be true, and by virtue of the provisions of an act made and passed in the fifth and sixth year of the reign of his late Majesty King WUham the Fourth, intituled " An Act to repeal an Act of the present Session of Parliament, intituled ' An Act for the more effectual Abolition of Oaths and Affirmations taken and made in various Departments of the State, and to Substitute Declarations in lieu thereof; and for the more entire Suppression of voluntary and extra-judicial Oaths and Affidavits;' and to make other Provisions for the Abolition of un- necessary Oaths." Taken and received before me, one of Her Majesty's justices of the peace for the said county of at in the said county, this day of 18 . 438 COUNTY COUHT ORDBRS> 186-7. Common Law. Proceedings under the Literary and Scientijic Institutions, the Friendly Societies, and the IndMstrial and Provident Societies Acts (17 Sj- 18 Vict. c. 112; 18 &■ 19 Vict. c. 63; 30 * 31 Vict. c. 117). 269. In proceedings in the County Courts under 17 & 18 Vict. c. 112, 18 & 19 Vict. c. 63, and 30 & 31 Vict. c. 117, a plaint shall be entered and a summons shall be issued thereon, and the rules and practice of such courts shall be adopted with respect to such proceedings so far as the same are applicable. 270. Where a defendant is a trustee, member of the general committee of management, treasurer, or other officer of an institution or society established under any act men- tioned in the last rule, the summons shall be served in the mode, if any, prescribed by the act under which any such institution or society is established or regulated, and if no mode of service be thereby prescribed, then at the usual place of business of the institution or society, and if there be no such place of business, then according to the ordinary practice of the court. Equity. Orders under "The Companies Ad, 1867," and "The In- dustrial and Provident Societies Act, 1862" (25 Sf 26 Viet. CO. 87, 89; 30 cj- 31 Yid.c. 131). The general order, rules, and forms of the High Court of Chancery regulating for the time being the mode of proceed- ing under " The Companies Act, 1862," shall be the Orders, Rules, and Forms in all proceedings in the County Courts for the winding-up of a society registered under " The Industrial and Provident Societies Act, 1862," or for the windiag-up of County Court Orders, 1867. 439 a Company under " The Companies Act, 1867," so far as the same are applicable : Provided that, where it shall appear to the court inconvenient that the Bank of England should be the bank used for the purposes mentioned in the order and rules, it shall be competent for the court to name some bank to be used in lieu of the Bank of England. A Scale of Costs and Charges to be paid to Counsel and Attorneys iTNDER " The Industrial and Provident Societies Act, 1862," and " The Companies Act, 1867." * Attorneys shall be entitled to charge and be allowed in proceedings under " The Industrial and Provident Societies Act, 1862," and in pro- ceedings transferred to a County Court under " The Companies Act, 1867," the same costs and charges as they -would be allowed in the Court of Chancery, except that where the amount of the subscribed capital of the society or Company shall not exceed 2000Z., they shall be allowed such costs and charges according to the lower scale authorised by the second rule of the 38th Consohdated General Orders of the Court of Chancery. Schedule of Fees op Court (A.) In proceedings under " The Friendly Societies Act, 1855," and " The Industrial and Provident Societies Act, 1867," the poundage shall be estimated upon the amount in dispute ; but if the application to the court is not for the payment of money, the poundage shall be estimated upon the amount of the sum of money stated by the applicant to be that which he will apply to the cotut to order the payment of. In the above cases where the poundage would, but for this direction, be estimated on an amount exceeding twenty pounds, it shall be estimated at twenty pounds only. Schedule (B.) Proceedings under " The Industrial and Provident Societies Act, 1862." £ s. d. For every petition presented to a court, under section 17 of the above act For every order for winding-up For every sitting or adjourned sitting of the court in the matter after the order for winding-up shall have been made For the taxation of every bill of costs * These tables of costs and fees are taken from the County Courts Orders 1867. ' 1 2 15 10 440 THE LIQUIDATION ACT, 1868 (31 & 32 Vict. cap. 68). An Act to facilitate Liquidation in certain Cases of Banlc- ru/ptcy Arrangement and Winding-up — \Z\st July 1868.] Be it enacted by tlie Queen's most excellent Majesty, by and with tbe advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assem- bled, and by the authority of the same, as follows : PEELIMlNAEY. 1. Short title. — This act may be cited as " The Liquidation Act, 1868." 2. Interpretation of terms. — In this act — The term "arrangement" means arrangement, convey- ance, or assignment by a debtor, with or for the benefit of his creditors, by deed registered under " The Bank- ruptcy Act, 1861 " : The term " deed " includes any instrument : The term "winding-up" means the winding-up of a Company in any manner under " The Companies Act, 1862," and any act amending the same : The term " liquidators " means assignees in a bankruptcy, trustees, or inspectors, or other persons acting on behalf of a debtor and his creditors, under an arrangement, or official or other liquidators in a winding-up. 3. Extent of act. — This act shall not extend to Scotland or Ireland. 4. Application- of act. — This act shall have effect in the following cases only : — (1.) In case of bankruptcy, where the adjudication has been made before the passing of this act, or a deed of arrangement has been registered before the pass- ing of this act and adjudication of bankruptcy super- venes before the completion of the liquidation under the deed. Bivuion of Assets in Specie, 441 (2.) In case of arrangementj where the deed has been registered before the passing of this act. (3.) In case of winding-up^ where proceedings are pending at the passing of this act. DIVISION OP ASSETS IN SPECIE. 5. Power loprepa/re and file scheme. — ^If in any case of bank- ruptcy, arrangement, or winding-up within, this act it appears to the liquidators that it will be for the benefit of the estate in liquidation that any part of the assets thereof should be divided in specie, or be otherwise disposed of without sale, they may prepare and file in the Court of Chancery a scheme in that behalf, (a.) (a) A scheme in that 'behalf.'] — As to the practice to be followed in pre- paring and filing a scheme, see the General Order of April, 1869, post. 6. Provision in scheme as to secured creditors. — A scheme may in any case provide that any class of secured creditors shall take in or towards discharge of their claims on the estate the securities held by them at a value to be deter- mined by the court or in such manner as the court shall direct. 7. Notice of scheme. — Notice of the filing of the scheme(a) shall be published and given as general orders under this act direct. (a) Notice of the filing of the scheme, ^c] — See Rule 10 of the General Order, post. 8. Application for confirmation. — At such time after the filing of the scheme as general orders under this act direct the liquidators may apply to the court (a) in a summary way for confirmation thereof. (a) The liquidators may apply to the court, Sfc."] — See Kule 11 of the General Order, post. 9. Confirmation of scheme by court. — After hearing the Hquidators, and any creditors or other parties whom the court thinks entitled io be heard on the apphcation, the court, if satisfied that no sufficient objection has been established to the scheme, may confirm the scheme, with or without alter- ation or addition. 10. Effect of scheme. — The scheme, as and when confirmed by the court, shall be binding and efiectual to all intents (any rule of law or equity or course of procedure in any court 442 The LiquidaUon Act, 1868. notwithstanding), and the liquidators and debtor and others affected by the scheme shall conform with the conditions thereof, and accordingly shall (subject to the directions of the court) execute and do all deeds and things necessary or proper for transferring or vesting any portion of the assets of the estate in accordance with the scheme. 11. Regard hy court to wishes oj creditors. — The court, in determining on the confirmation of a scheme, and in aU proceedings and matters under or relating to a scheme, may have regard to the wishes of the creditors or of separate classes of creditors, as proved to the court by any sufficient evidence ; and the court may, if it thinks it expedient for the purpose of ascertaining their wishes, direct meetings of creditors or of classes of creditors to be summoned and held, which meetings shall be regulated ia such manner as the court thinks fi.t (regard being always had to the value of the debts due to the several creditors and to the nature and amount of their respective securities, if any), and may appoint a person to act as chairman of any such meeting, and to report the result thereof to the court. POEECLOSUEE BY NOTICE. 12. Power for creditors to foreclose hy notice. — For facili- tating the settlement of claims of secured creditors the following provisions shall have effect : — (1.) In any case of bankruptcy, arrangement, or winding- up withm this act, any person being or claiming to be a creditor on the estate in liquidation, and hold- ing or claiming a security, charge, or Uen on the assets of the estate, may, without suit, give notice in writing to the liquidators and the debtor, stating his debt or demand, and the security, charge, or lien which he holds or claims, and reqmring payment of his debt or demand within a time thereru specified, not being less than six months from the dehvery of the notice: (2.) Unless the liquidators within the time specified either comply with the notice, or give to the creditor a counter-notice to the effect that they dispute his right to the security, charge, or lien held or claimed by him, then from and after the expiration of the time specified the creditor shall be entitled and bound to retain and accept, in full and final satis- faction of the debt or demand stated in his notice, Procedure. — The Scheikde. 443 that portion of the assets on which he holds or claims the security, charge, or lien, and all right and title of the liquidators and debtor therein shall thenceforth be foreclosed: (3.) The liquidators and debtor shall, at the cost of the estate, execute and do all deeds and things necessary or proper for vesting ia the creditor such portion of the assets as aforesaid, free from all right of redemp- tion by such liquidators or debtor. PROCEDUKE. 13. Oeneral orders and forms in schedule. — General orders for the better execution (a) of this act and for the regulation of procedure thereunder shall be from time to time made by the Lord Chancellor of Great Britain with the advice and assistance of the Lords Justices of the Court of Appeal in Chancery, the Master of the EoUs, and the vice-chancellors, or of any two of those judges ; and subject to the provisions of any such General Orders, and until any such are made, the forms given in the schedule to this act, or forms to the Hke effect, may be used for the purposes therein iudicated, with such variations as circumstances require, and when used shall be deemed sufficient. (a) General Orders for Hie, better execution, ^c] — See tlie General Orders of April, 1869, post. THE SCHEDULE. FORMS. I. Notice by Creditor. " The Liquidation Act, 1868." To A. B. and C. D., being the assignees in bankruptcy [or, as the case may 6e] of E. F., of , and to the said E. F. I [or, we], the undersigned, being a creditor [or, creditors] of the above- named E. F. to the amount of £ and holding the following 444 The Liquidation Act, 1868. securities, namely \]iere the nature of the securities claimed,- and whether kf/al or equitable, to be fully slaleil], do hereby require you (or some or one of you) to pay off my [or, our] said debt or demand within [not less than six calendar months] from the receipt by you of this notice. Dated this day of (Signed) G. H. n. CotJNTER-NOTICE BY LiQUIDATOES. " The Liquidation Act, 1868." To G. H. We, the undersigned, being the assignees in bankruptcy [or, as the case may be] of the estate of E. F., do hereby give you notice that we dispute your right to the security, charge, or lien held or claimed by you on a portion of the assets of the estate in respect of the debt or demand of £ claimed by you. Dated'this day of (Signed) A. B. CD. 445 GENERAL OEDBR OP THE HIGH COURT OP CHANCEEY. Thcebdat, the 29th day of April, 1869. ORDER OF COURT. Thursday, the 29th day of April, 1869. The Right Honorable William Page Baron HatheeleYj Lord High Chancellor of Great Britain, with the advice and assistance of the Right Honorable John Lord Romillt, Master of the Rolls, the Right Honorable the Lord Justice Sir Charles Jasper Selwtn, the Right Honorable the Lord Justice Sir George Maekhajvi Giepard, the Honorable the Vice-Chancelloe Sir John Stuart, the Honorable the Vioe- Chancelloe Sir Richard Malins, and the Honorable the Vice- Chancellor Sir William Milbouene James, doth hereby, in exercise and execntion of the powers given to him by "The Liquidation Act, 1868," and of aU other powers and authorities enabling him in that behalf, order and direct in manner following : — 1. Every scheme to be filed in the Court of Chancery pursuant to the statute 31 & 32 Vict. cap. 68, and every declaration, affidavit, petition, summons, notice, or other proceeding relative thereto, shall be intituled in the matter of " The Liquidation Act, 1868," and in the matter of the debtor, bankrupt, or Company, to whose assets the same relates, and, if the same relates to the assets of a Company which is being wound-up under " The Companies Act, 1862," and any act amending the same, then such scheme shall also be intituled in the matter of "The Companies Act, 1862." 2. Every such scheme shall be marked either with the words "Lord Chancellor," and the name of one of the Vice- Chancellors, or with the words " Master of the Rolls ;" and the matter of such scheme (unless removed by some special order of the Lord Chancellor or the Lords Justices) shall accordingly be attached to the court of such Vice- 446 Tfie lAqwicLaUon Act, 1868. Oliancellorj or to the court of the Master of the Eolls, as the case may be^ in like manner, and for the same purposes, as causes, are attached to a particular court. 3. Where such scheme relates to assets of a Company which is being wound-up, under " The Companies Act, 1862," and any act amending the same, by the Court of Chancery or under the supervision of the Court of Chancery, the scheme shall be marked so as to be attached to the court of the judge to whose court the matter of such winding-up is attached. 4. Every scheme to be filed as aforesaid, shall be printed on paper of the same size and description and in the same style and manner as bills in Chancery are required to be printed; and every fifth line of each page thereof shaU be numbered. 5. Every such scheme shall be filed in the Office of the Clerks of Records and Writs, and shall have indorsed thereon the name and address of the solicitor and London agent (if any) of the liquidators, and also the address for service of such solicitor in cases where an address for service is required by the general orders of the court. 6. At any time after the expiration of four days from the filing of any such scheme, any person claiming to be interested as a creditor or contributory in the afiairs of the debtor, bankrupt, or Company to whose assets the scheme relates, may, by a requisition iu writing, delivered at the office of the solicitor of the liquidators, or of his London agent (if any) , and stating the nature of the interest which such person claims, demand any number, not exceeding ten, of printed copies of the scheme; and the copies so required shall, within twenty-four hours after such demand, and on payment for each such copy at the rate of one half-penny per folio, be delivered to the person so requiring the same, with a certificate thereon by such soHcitor or his London agent, that they are true copies of the scheme filed. 7. Except in cases where an affidavit, verifying a list of creditors, shall already have been filed, or a list of creditors shall have been made out under the direction of the court, the liquidators, on the day on which the scheme is filed, or within such further time as the judge shall allow, shaU file, in the Office of the Clerks of Records and Writs, an affidavit made by some person competent to make the same, verifying General Order of Court, April, 1869. 447 a list containing the names and addresses of the creditors, and the amounts due to them respectively, so far as the same can be ascertained, and leave the said list, and an office copy of such affidavit, at the chambers of the judge. 8. Copies of the scheme, and copies of the list of creditors, containing the total amount due to them, but omitting the amounts due to them respectively, or (if the judge shall so direct), complete copies of such list, shall be kept at the offices of the solicitor of the liquidators and his London agent (if any) ; and any person claiming to be interested as creditor or contributory, may, at any time during the ordi- nary hours of business, inspect and take extracts from such scheme and copy list on payment of the sum of one shilling. 9. The liquidators shall, within seven days after the filing of the scheme, or within such further time as the judge may allow, send to each creditor whose name is entered in the said list, or to such of them as the judge shall think fit, and in cases of winding-up, to such of the contributories as the judge shall think fit, a notice of the filing of the scheme. Such notice shall state the time when the scheme was filed, and the place or places where the scheme may be inspected, and copies thereof obtained ; and shall be sent through the post in a prepaid letter addressed to each of the persons to whom the same is to be sent at his last known address or place of abode. 10. Notice of the filing of the scheme may also, if the judge shall think fit, after the filing thereof, be published at ,such times and in such newspapers as the judge shall direct. Every such notice shall contain such particulars as are men- tioned in the preceding rule. 11. After the expiration of one calendar month, from the filing of the scheme, or at such earlier time as the judge shall think fit, the liquidators may present a petition for con- firmation of the scheme. It shall not be necessary in such petition to set forth the scheme, but it shall be sufficient to refer thereto. 12. Wben any petition to confirm any such scheme is pre- sented, the liquidators shall apply to the judge in chambers to appoint the day on which the same is to come into the paper for hearing, such day not to be before the expiration of three weeks from the time of such application, and shall cause a notice of such presentation to be inserted in such 448 The Liquidation 'Act, 1868. two newspapers as the judge in chambers stall direct. Sucli notice stall state tte day on wtict tte scteme was filed, and tte day on wtict tte petition was presented, and tte day on wtict tte same is directed to come into tte paper for tearing, and tte name and address of tte solicitor and London agent (if any) of tte liquidators. 13. Tte petition stall not come on to be teard until at least fourteen clear days after tte first insertion of suet notice as aforesaid. Suet notice stall at least once in every entire week, reckoned from Sunday morning till Saturday evening, wtict stall tave elapsed between tte first insertion ttereof, and tte day on wtict suet petition is directed to come into tte paper for tearing, be again inserted in suet newspapers as aforesaid, on suet day or days as tte judge in ctambers stall direct. 14. Any creditor, contributory, or otter person wtose rigtts or interests are effected by suet seteme, and wto stall be desirous to be teard in opposition to tte confirma- tion ttereof, stall, at least two clear days before ttp day on wtict tte petition for confirmation is directed to come into tte paper for tearing, enter an appearance in the OflSce of tte Clerks of Eecords and Writs, and, in default of so doing, stall not be entitled to be heard, unless by the special leave of the court. 15. Any person so entering an appearance shall be deemed to have submitted himself to the jurisdiction of the court as to payment of costs, and otherwise. 16. No order for confirming a scheme, whether with or without alteration or addition, shall be enrolled until the expiration of thirty days from the day of the same having been pronounced, exclusive of vacations. 17. No caveat shall be entered to stay the enrolment of any order for confirming a scheme, with or without altera- tions or additions ; but every such order may be enrolled after the expiration of thirty days from the day of the same, being pronounced, unless in the meantime a petition for a rehearing shall have been presented, and an order for set- ting down such petition obtained and served upon the liquidators, such thirty days to be exclusive of vacations. 18. No petition for a rehearing, either before the same judge or before the Lord Chancellor or the Lords Justices, of the case on which any order confirming a scheme, with or General Order 'of G our f, April, 1869. 449 without alterations or additions, or order refusing to con- firm a sclieme has been made, shall, unless by special leave of the Lord Chancellor or the Lords Justices, be presented after the expiration of thirty days, exclusive of vacations, from the day on which such order was pronounced, notwith- standing that such order may not have been enrolled. 19. When an order has been made for confirming a scheme, with or without alterations or additions, no person who neither has entered an appearance as aforesaid, nor has by virtue of such special leave as aforesaid been heard in opposition to the confirmation of the scheme, nor is the legal personal representative of a person who has entered an appearance or been heard in opposition as aforesaid, shall be at liberty to present a petition for rehearing before the same judge, or before the Lord Chancellor or the Lords Justices, unless the Lord Chancellor or the Lords Justices shall, by special order, to be applied for by motion on notice to the liquidators, to be served on their sohcitor or London agent, give leave to such person to present a petition for a rehearing. 20. All orders made in chambers under " The Liquidation Act, 1868,^' shall be drawn up in chambers unless specially directed to be drawn up by the registrar, and shall be entered in the same manner and in the same ofiice as other orders drawn up in chambers. 21. In cases not expressly provided for by the said act, or by the rules of this order, the general orders and practice of the court (including the course of proceeding and practice in the judges' chambers, and the course of proceeding and practice as to rehearings before the same judge, or before the Lord Chancellor or Lords Justices), shall, as far as such general orders and practice are applicable and not incon- sistent with the said act or this order apply to all proceedings in the Court of Chancery under the said act. 2:. The power of the court and of the judge in chambers to enlarge or abridge the time for doing any act or taking any proceeding, to adjourn or review any proceeding, and to give any directions as to the course of proceeding, shall be the same in proceedings in Chancery under the said act as in proceedings under the ordinary jurisdiction of the court. 23. Solicitors shall be entitled to charge, and be allowed for all duties performed under "The Liquidation Act, 1868," such of the fees on the higher scale, authorised by the 2nd G a 450 The Liquidation Act, 1868. rule of the 38tli of the Consolidated Orders and the Regula- tions as to solicitors' fees subjoined thereto as are applicable, unless the court or judge shall otherwise specially direct. 24. The fees of court set forth or referred to in the sche- dule hereto, shall be paid in relation to proceedings ia Chancery under the said act, and shall be collected by means of stamps in m^anner provided by the general orders of the court. 25. This order shall come into operation on the 1st day of May, 1869. 26. The general interpretation clause in the Consolidated General Orders shall apply to the rules of this order ; and in this order the term " liquidators " has the same meaning as in "The Liquidation Act, 1868," and the word "contribu- tory" has the same meaning as in "The Companies Act, 1862." Hatheelet, C. romillt, m.r. C. Jaspee Selwtn, L.J. G. M. GiFPAED, L.J. John Stfaet, V.C. RicHD. Malins, V.C. W. M. James, V.C. THE SCHEDULE. Fees to be collected by means of Stamps. In the judges' chambers and in the respective offices of the registrars, the examiners, and the taxing masters, such of the fees by the 2nd Rule of the 39th of the Consolidated Orders, and the regulations subjoined thereto, directed to be collected and paid, as are applicable. In the Eecnrd and Writ Clerks^ Office. £ s. d. For filing every scheme under " The Liquidation Act, 1868" 10 For every certificate of iiling a scheme ... ... ... ... 5 And such other fees by the 2nd Eule of the S9th of the Con- solidated Orders, and the regulations subjoined thereto directed to be paid and collected, as are applicable. In the Office of the Lord Chancellor's Principal Secretary. For every petition ... 1 Tn the Office of the Secretary at the Rolls. For every petition 10 451 THE COMPANIES SEALS ACT, 1864 (27 & 28 Vict. cap. 19). An Act to enable Joint-Stock Companies carrying on Business in Foreign Countries to have Official Seals to be used in such Countries. — [)3th May 1864.] Wheeeas there have been and may be established in the United Kingdom Companies whose business is to be carried on in countries not situate in the United Kingdom^ and it is convenient and desirable that investments may be made, and mortgages, conveyances, and leases taken, and contracts and engagements entered into, on behalf of the Company, in such countries, in the name of the Company : Be it there- fore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords spiritual and tem- poral, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1 . Short title. — This act may be cited for all purposes as " The Companies Seals Act, 1864." 2. Power to Companies to have am, official seal. — Any Com- pany, under " The Companies Act, 1862," whose objects require or comprise the transaction of busin&ss, as herein- before mentioned, ia foreign countries, may cause to be prepared an official seal for and to be used in any place, district, or territory situate out of the United Kingdom in which the business of the Company shall be carried on, and every such official seal may and shall be a fac-simile of or as nearly as practicable a fac-simUe of the common seal of the Company, with the exception that on the face thereof shall be inscribed the name of each and every place, district, or territory in and for which it is to be used : Provided that it shall be lawful for any such Company as aforesaid from time to time to break up and renew any official seal or seals, and to vary the limits within which it is intended to be used. 3. Power to Companies to appoint agents abroad, to affix seals. — Every Company having or using any such official gg2 452 Tlie Companies Seals Act, 1864. seal as is authorised by this act, may from time to time, by any instrument or instruments in writing under the common seal of the Company, empower any agent or agents specially appointed for the purpose, or any local agent, board, com- mittee, manager, or commissioner appointed under the pro- visions of the Articles of Association of such Company, in any place, district, or territory situate out of the United Kingdom where the business of the Company shall for the time being be carried on, to affix such official seal to any deed, contract, or other instrument to which the Com- pany is or shall be made a party in such place, district, or territory, and no other order of the Company or the Jboard of directors thereof shall be necessary to authorise any such seal to be affixed to any deed, contract, or other instrument. 4. As to the duration of powers granted under sect. 3 of this act. — Every power granted under the last preceding section shall, as between the Company, their successors and assigns, on the one hand, and the person or persons dealing with the agent or agents, board, committee, manager, or commissioner named in the instrument conferring the power, and all parties claiming through or under such person or persons, on the other hand, continue in force during the period, if any, mentioned in the instrument conferring the power, or if no power be there mentioned then until notice of the revocation or determination of the power shall have been given to such person or persons as aforesaid. 5. Person affixing seal to document to certify the date when so affixed. — ^Whenever any such official seal as aforesaid shall be affixed to any document, the person affixing the same shall, by writing under his hand, and written on the docu- ment to which the seal may have been affixed, certify the date when and the place where the same was affixed ; and any document to which any such seal shall have been duly affixed within the district or territory or place, the name whereof is inscribed on such seal, shall bind the Company in the same way and to the same extent, and have the same force and effect, as if it had been duly sealed with the common seal of the company. 6. Oompaiiies not to exorcise powers of ad unless authorised. — The powers given by this act shall be exercised by such Companies only as are or shall be expressly authorised to exercise the same by their articles of association, or a special resolution passed(n') according to the provisions of "The The Gompanies Seals Act, 1864. 453 Companies Act, 1862/' and shall be exercised by such com- panies subject to any directions or restrictions in their articles of association or the special resolutions contained. (a) A special resolution passed, Sfc.'] — For a definition of a special reso- lution, seep. 131, ante. 7. Section 55 of 25 8f 26 Vict. a. 89, not repealed. — Nothing in this act contained shall operate to repeal the provisions (a) of the 55th section of " The Companies Act, 1862," but such section shall continue in force, and all acts done or to be done thereunder shall be as valid and effectual as if this act had not been passed. (a) The provisions, §"c.] — See p. 133, ante. 454 THE MORTGAGE DEBENTUEE ACT, 1865 (28 & 29 Vict. CAP. 78). An Ad to enable certain Companies to issue Mortgage Deben- tures founded on Securities upon or affecting Land, and to make Provision for the Registration of such Mortgage Debentures and Securities. — [29VlH'ro, on an appeal, the official liquidator supports unsuccessfully Addenda. 531 the decision of the court below, his costs of the appeal will be allowed out of the estate ; where he appeals against the decision of the court below and is unsuccessful, and is ordered to pay costs, it will be left to the court below to determine whether they shall come out of the estate : (Re Peruvian Railways Company, Robinson''s case, Law Rep. 4 Ch. App. 322.) Page 214, line 6, add : As to the jurisdiction of the court to discharge an order made in a winding-up, although more than three weeks have elapsed since the order was made, see He Estates Investment Company, Ex parte Turnley and Oliver (Law Rep. 8 Eq. 227). Page 219, Une 26, add : As to the effect of this section in avoiding a transfer made to an infant before the resolution to wind-up, see Re Continental Bank Corpo- ration, Castelld's case (Law Rep. 8 Eq. 504). Page 241, line 5, add : When a Company has been ordered to be wound-up, the interest upon debts which carry interest, ceases to run from the commencement of the winding-up, unless the estate is sufficient to pay all debts in full, in which case alone subsequent interest can be claimed (Re Humber Ironworks and Shipbuilding Company, Ex parte Warrant Finance Company, 38 L. J. Ch. 712 ; Law Rep. 4 Ch. App. 643) ; but this rule does not prevent a creditor who has a right to prove for the same debt against the estates of two Companies in hquidation, from receiving dividends from both estates, until the full amount of his debt and interest has been satisfied : (Re Joint-Stock Discount Company, Warrant Finance Company^s case. Law Rep. 5 Ch. App. 86.) Neither does it prevent a creditor who holds security from receiving dividends to the full amount of the principal, and at the same time realising his security, until the fuU amount of principal and interest has been satisfied : (Re Humber Ironworks and Shipbuilding Company, Ex parte Warrant Finance Company, No. 2, Law Rep. 5 Ch. App. 88.) Page 242, line 6, add : See, also. Re London and Colonial Company, Ex parte Clark (Law Rep. 7 Eq. 550), on the same subject. Page 243, line 17 from bottom, add : See, however, the case of Re Barned's Banking Company, Coupland's claim (Law Rep. 8 Eq. 472), where creditors were only allowed to prove for the balance remaining due to them, after realising a part of the debt. For observations on Kellock^s case, see Re Blakely Ordnance Company, Metropolitan and Provincial Bank's claim (Law Rep. 8 Eq. 244), where it was held that a creditor who, in addition to a Company's acceptances for the amount of his debt, also holds debentures issued to him by the Company as a collateral security for the same debt, has only a right to prove for the sum that is due to him, and cannot prove for the amount secured by the debentures. See, also. Re Barned's Banking Company, Forwood's claim (Law Rep. 5 Ch. App. 18), and Re Oxford and Canterbury Hall Company (Law Rep. 8 Eq. 691). M M 2 532 Addenda. Page 243, Une 19, add: But see Re Trent and Hujriber Sliiphuilding Company, Bailey and LeethanCs case (Law Rep. 8 Eq. 94), and Re Bank of Hindustan' China and Japan, Ex parte Smith (Law Rep. 3 Ch. App. 125). See, also, Madrid Bank v. Pelly (Law Rep. 7 Eq. 442), where the costs ordered to be paid by a Company in liquidation were held to be payable in full out of the assets of the Company, and not merely provable as a debt in the winding-up. Page 243, line 8 from bottom, add : See, also, Re British and American Steam Navigation Company, Pearse's claim (Law Rep. 8 Eq. 506), as to proof by biUholders in a winding-up. Page 244, line 5, add : Where a Company becomes incompetent to perform a contract for the purchase of goods, in consequence of its winding-up, the party contract- ing to siipply the goods is entitled to prove in the winding-up for the breach of contract, and is not obliged to accept the official liquidator's acceptances in payment for the goods, although it was originally agreed that the goods should be paid for by acceptances : (iJe Contract Corpora- tion, Ex parte Ebbw Vale Company, Law Kep. 8 Eq. 14.) Page 244, line 10, add : The assignee of a debt due from a Company, in course of Hquidation, may prove against the Company for the full amount of the debt, although lie is a contributory of the Company, and has bought up the debt for a less sum than is actually due on it : (Re Humber Ironworks Company, Law Rep. 8 Eq. 122.) Page 244, line 11 from bottom, add : The decisions in these cases were confirmed by the Court of Appeal : {Re Trent and Humber Company, Ex parte Cambrian Steam Packet Com- pany, Law Rep. 4 Ch. App. 112.) Page 246, line 16, add : The court has jurisdiction imder this section to sanction a compromise between the creditors and contributories of a Company in liquidation, and did so where the compromise was assented to by a large majority of both classes, and provided that the creditors should accept a composi- tion : {Re Commercial Bank Corporation of India and the East, Law Rep. 8 Eq. 241.) Page 250, line 4, add : See, also, De Rosaz v. Anglo-Italian Bank Limited (Law Rep. 4 Q. B. 462) where it was held that a shareholder who had obtained an award, on a reference under tliis and the following sections, coiild bring an action upon it. Page 251, line 6 from bottom, add: See, also, De Rusaz v. Anglo-Italian Bank Limited (Law Rep. 4 Q. B. 462) . Page 255, line 13 from bottom, add: The limited effect given to the section, in the last two cases (both decided by the Msxster of the Rolls), was strongly dissented from by the Addenda. 533 Court of Chancery Appeal in Re Mercantile Trading Company, Stringer's case (Law Kep. 4 Ch. App. 475), in which the court considered that, " wherever upon notice of motion and upon affidavit and due examination of witnesses," a conclusion might properly be arrived at by the court, there was no reason why a biU should be filed, instead of deciding the question under this section. Page 274, line 6, add : As to the winding-up imder this act of a Company formally dissolved before the passing of the act, see Re Family Endowment Society (W. N. 1870, p. 2). Page 274, line 10, after " W. N. 1869, p. 108," add: Law Eep. 8 Eq. 176. Page 274, line 24, after " W. N. 1869, p. 108," add : Law Rep. 8 Eq. 176. Page 277, Ime 5, " after p. 108," add : Law Rep. 8 Eq. 176 ; lb. 4 Ch. App. 611. Page 277, line 6, add : As to the parties liable to pay the costs of the winding-up, in the case of an unregistered company, see Re London Marine Insurance Association, (Law Rep. 8 Eq. 176). Page 292, note (c) add : As to what constitutes a payment of dividends out of profits, within the meaning of clause 73, see Re Mercantile Trading Company, Stringer's case (Law Rep. 4 Ch. App. 475). Page 316, line 12, add note : A court of equity is bound to give effect to an agreement to refer under this section, and wiU not entertain a suit in contravention of such agreement : ( Watford and Richnansworth Railway Company v. London and North Western Railway Company, Law Rep. 8 Eq. 231.) Page 319, line 23, add: Also, Re Petroleum Company (15 L. T. N. S. 169), Re Thames Mutual Club Insurance Company (lb. 263), and Re London and Westminster Wine Company (1 Hem. & M. 661 ; 9 L. T. N. S. 321). Page 326, line 9, after " 399, n." add : On appeal. Law Rep. 4 Ch. App. 112. Page 326, after " Rule 27," add note : When a claim against a Company in liquidation is adjourned into court, and allowed with costs out of the estate, only- the costs of the adjournment into court are meant to be given, and the costs incurred by the claimants in chambers must be added to the amount of the claim. If the court intends that the whole of the costs shall be paid out of the estate (as may be done if it appears that the opposition to the claim is not bon&Jide), this must be distinctly stated in the order : (Re General Estates Company, Ex parte Wright and Gamble, Law Kep. 8 Eq. 123.) Page 474, line 18, add : Another act on the subject (32 & 33 Vict. c. 114, post) has just been passed, which is to be construed as one with this act as amended by the Railway Companies Act, 1807. 634 Addenda. Page 499, line 19 from bottom, after "789 " put : Law Eep. 8 Eq. 356. Page 500, after " sect. 6," add note: For an order made under this section in the case of an Irish railway Company being wound-up by the Court of Chancery in England, see Re Waterford and Passage RaUioay Company (W. N. 1870, p. 32.J INDEX. L., Table : regulations contained in, p. 284 how far applicable to company, pp. 29, 284 Lbandonment (see " Bail way Company ") : Abandonment of Eailwaya Act, 1860 (13 & 14 Vict. c. 83), p. 474 amended, pp. 495, 498 company may apply to commissioners of railways to abandon the undertaking (a. 1), p. 474 form of application, p. 475 directors may call meeting to consider such application (b. 2), p. 476 shareholders may require directors to call such meeting (s. 3), p. 476 directors thereupon must suspend pay- ments and calls (s. 4), p. 477 mode of calling such meeting (s. 5), p. 477 mode of taking votes at such meeting (SB. 6, 8), p. 478 scrutiny thereupon, p. 479 chairman of du-ectors to be chairman of such meeting (s. 7), p. 478 his certificate evidence of the res gestx (s. 10), p. 479 adjournment of meeting (a, 9), p. 479 authority of meeting, p. 480 commissioners of railways to direct adver- tisements of application (s. 13), p. 480 and have power to inspect company's books (e. 14), p. 481 may by warrant authorise the aban- donment of whole or part of railway (s. 15), p. 482 proof of the necessary notices must be laid before the commissioners (note), p. 482 how to deal with objecting shareholders (s. 16), p. 482 abandonment of railway to be advertised, and demands for compensation to be sent in (s. 17), p. 483 commissioners to certify due publication of notice of warrant (s. 18), p. 484 warrant releases company from liability to make railway (s. 19), p. 484 compensation as to contracts or notice (s. 20), p. 485 compensation iu Uen of accommodation works (e. 21), p. 486 compensation iu lieu of repairing bridges (s. 22), p. 486 Abahdonment (continued) : compensation to trustees and overseers of public roads, how to be applied (s. 23), p. 486 application of moneys paid (s. 24), p. 48G arbitration for compensation under 8 & 9 Vict. c. 20 and 8 & 9 Vict. c. 33 (s. 25), p. 487 claim for compensation to be made within six months after publication of warrant for abandonment (s. 25), p. 487 company liable for damage caused by taking levels under 8 & 9 Vict. o. 18 or 8 & 9 Vict. c. 19 (s. 26), p. 487 company's lands to be sold (s. 27), p. 488 reduction of capital on abandonment of part of the undertaking (s. 28), p. 488 warrant terminates company's powers ex- cept for winding-up, p. 489 in a winding-up landowners are to be deemed creditors as regards compensa- tion under act (s. 34), p. 491 act not to affect private contracts for con- struction of railway (s. 36), p. 492 commissioners are to report abandonment to Parliament (s. 37), p. 493 interpretation of terms, p. 493 schedule to act, p. 494 Abahdokmeht of Eailwats Act, 1869 : short title, p. 498 construction of act, p. 498 petition for winding-up, &c., p. 499 application of deposit, p. 499 transfer of deposit, &c., p. 600 saving for rights to residue of deposit, p. 500 application for abandonment by judgment creditor, p. 501 notices, p. 501 repeal of sections, &c., p. 501 Abobtive Company : repayment of money subscribed for, p. 5 question of fraud, how far immaterial, p. 6 Acceptance of Shares (see " Contract," "Shares"): when, conditional, p. 81, et seq. Account : with court in winding-up, p. 202 Acquiescence : of shareholders, pp. 27, 41 in forfeiture of shares, p. 27 in informal transfers, pp. 64, 65 iu fraudulent representations, pp. 89, et seti., 05, 98, 100 ; 81, 82 Ad.. 536 Index. Acquiescence (continued) : of shareholders (contmued) : in variiinoe between prospectus and memorandum or articles, pp. 94, 95, 97, 98, 196 in invalid entry on repster, pp. 194, 196 by company in acts ultra vires^ pp. 35, 41 distinction between company and creditors, as to, p. 100 Act, see " Statutes " Action : by and against company (see " Company "), pp. 43, 45, 140 after commencement of winding-up, pp. 162, 173, 180, 181 182, 251 by purchaser of snares for refusal to register, p. 75 by company against member for calls, &c. (see " Calls "), p. 141, et aeq. declaration in, p. 145 evidence in, pp. 142, 143 defence to, p. 143 after bankruptcy of member, pp. 144, 149; 149 /Id after deed of arrangement, pp. 149, 150 ; 149 Ad. by purchaser of shares against seller for non-delivery (see " Shares "), pp. 68, 69 damages in, p. 69 defence to, when company not registered, p. 69 . evidence in, p. 68 by seller against purchaser for non-accept- ance (see " Shares "), p. 67 damages in, p. C8 evidence in, pp. 67, 68 by seller against transferee for subsequent calls, pp. 62, 63, 69, 236, 237 ; 62 Ad. for non-registration, p. 69 by seller against dealers on Stock Exchange for indemnity, pp. 61, 62, 63 ; 62 Ad. by one promoter against others for con- tribution, p. 4 to recover deposit, p. 6 to recover back price of shares— issues, p. 6 Admission : of documents in winding-up, p. 334 Advektisement : of application for abandonment of railway, p. 480 as to abandonment of railway, p. 483 of intention to apply to change registered office of company when necessary, p. 284 of petitiou to wind-up a company, p. 318 nature, form, and effect of, pp. 318, 340 consuquonce of omittiug, p. 318 of order to wiud up, pp. 320, 342 for appointing ofHoial liquidator, pp. 321, 322, 342, 316 for creditors on a windiug-up, pp. 324, 346 to be inserted in London Gaztite-^ p. 333 judge may di^peuse with, p. 334 Ai'i'iDAVlT (see " Forms ' ) ; Bwoiirin;; of, iu winding-up proceedings, p. 2 Hi veiifiiiiiJ petition lo wind-up, pp. 319, 341 Affidavit (contimted) : complying with statutory requirement as to statement of belief, p. 319 under a winding-up to be filed in the Record and Writ Clerks' OfBce, p. 3.34 office copies of, to be taken by official liquidator, p. 334 to be filed by official liquidator in con- tinuous file, p. 335 by official liquidator as to list of debts, &c., pp. 325, 346 as to list of contributories, pp. 326, 351, 354 in support of application for call, pp. 328, 357 on application for order for enforcing pay- ment of call, pp. 329, 330, 359, 361 verifying list of creditors on petition to re- duce capital, what to contain, pp. 402, 403 Agency : geueral law of, applicable to sbarebrokers, p. 58 evidence in cases of alleged, p. 109 Agents : directors as (see " Directors "), pp. 36, et seq., 48, i%\ 37 Ad of company under Companies Act, 1867, pp. 395, 396 what are a company's, under sect. 100 of 23 & 26 Vict c. 89, p. 198 when company liable for false representa- tion of its, pp. 38, 39 personal liability of company's, pp. 39, 40, 256 liability of, as to shares purchased for anotlier, pp. 104, 189 of compnny for sealing documents abroad, p. 461 Allotment (see " Contract," " Shares ") : of shares, nature and meaning of, pp. 16, 17, 42, 78, 79, 80, 81, 82, 83 ; 79, 81, 82 Ad. form of, p. XXX vii notice of, pp. 80, 84, 85 when necessary to constitute a share- holder, p. 80 when unnecessary, pp. 84, 85, 87 must be made within a reasonable time, p. 81 deposit conditional on, pp. 5, 6 suit iu equity to enforce, p. 42 Allottee (see "Contract," " Shai'es"): rights of, whether different from those of transferee— juas'e, pp. 89, 94, 97 Amalgamation : of oompsnies, pp. Ixxxiv, 17, 109, 246, 247, 248, 249, 250 effect of, pp. 169, 117, 118 power of, in articles, p. 249 does not bind dissentient shareholder, pp. 17, 18, 248, 249 ; 17 Ad may be confirmed by court, though some shareholders dissent, p. 249 winding-up for purpose of, pp. Ixxxiv, 165 winding- up consequent upon, p. 109 liability of shareholder notwithstanding, pp. 117, 118 under sect. 161 of Act of 1862, pp. 246, 248 bow to be impugned, pp. 248, 249 Index. 537 Anmual List : of members, p. 102 Annual Returns : by industrial, &a., societies, pp. 422, 423 Annual Summary: of capital and shares, pp. 102, 103 form of, p. 307 to contain particulars of share warrants, p. 393 Appeal : from orders in Trinding-np of company, pp. 212, 213 in voluntary winding-up, p. 226 from orders made in chambers, p. 213 Ad. from orders made in County Court, p. 399 by official liquidator, p. 213 costs of, p. 213 Ad. fresh documentary evidence on, when ad- missible, p. 213 to Honse of Lords, p. 213 notice of, p. 213 enlargement of time for, p. 214 application for enlargement of time for, bow made, p. 214 no, lies from County Court to common law court, under Industrial Societies Act, 1862, p. 420 from vice-warden of the Stannaries Court to the Lord Warden (see "Stannaries Court"), pp. 213, 369, 512 form of notice of, pp. 370, 374 procedure in, p. 370, et seq. bond for, under 18 Vict. o. 32, s. 26, pp. 370, 374 nature and form of, pp. 370, 374 to be signed by counsel, unless endorsed by vice-warden, p. 370 service of notice and copy of, p. 371 lodging of, p. 371 forms to be used in, p. 374, et seq. fees payable on, p. 377 Appearance : of companies in an action, p. 45 by creditors against petitioa under Liqui- dation Act 1868, pp. 442, 448 Application (see "Petition," "Winding-up"): for shares in a company (see " Contract," " Shares "), pp. 80, 81, 82 ; 81, 82 Ad. revocation of, p. 83 by letter, p. 82 form of, p. xxxvii for abandonment of railways under Act of 1850, pp. 474, 475 form of, p. 475 by whom to be made, pp. 474, 496, 499, 501 Arbitration : value of shares of dissentient member to be determined by, p. 260 provisions of Companies Clauses Consoli- dation Actj 1845 (8 & 9 Vict. c. 16), with regard to, incorporated with Act of 1862, p. 260 power of company to refer matters to, p. 146 to be regulated by Railway Companies Arbitration Act, 1859, pp. 146, 311 Arbitration (eoniimted) : procedure under Railway Companies Arbi- tration Act, 1859, p. 314 compensation under Railways Abandon- ment Act of 1850 (s. 25), to be settled by, p. 487 appointment of arbitrators in, by Board of Trade, p. 312 by railway company, p. 312 appointment of arbitrators in, how revo- cable by railway company under 22 & 23 Vict. 0. 59, p. 313 procedure respecting, p. 314 appointment of umpire in, p. 313 vacancy amongst arbitrators in, may bo supplied, p. 313 power in, to call for books and administer oath, &c., p. 314 Articles of Association (see " Forms ") : may prescribe regulations for company, pp. xxxviii, 13, et seq. form of, for limited company, pp. xl, 284 application of Table A. in absence of, p. 29 power to alter regulations in, p. 130 effect of, p. 30 stamp and signature to,- p. 30 registration of, p. 31 effect of registration of, p. 32, what companies must have, p. 13 by whom to be subscribed, p. 13 to be numbered in paragraphs, p. 13 should state capital, and may adopt all or part of Table A., p. 13 should statenumberof members, when, p. 13 when must a subscriber of, take a share, p. 13 altered after signature, p. 30 sheets of, purloined, p. 30 when binding on one who has not Ngned them, p. 30 who may sign, p. 31 fraud in, p. 31 variance between prospectus and, pp. 94, 97, 98, et seq. referred to in prospectus, pp. 97, 98 members when bound to know, pp. 14, 98, 100 aoquiesoenoe of members in, pp. 15, 94, 95, et seq., 98 persons dealing with company bound to notice, pp. 15, 36 ; 37 Ad. should state contracts made before regis- tration, p. 16 company not answerable for liabilities of promoters unless adopted by, pp. 3, 16 contracts contrary to, pp. 15, 36, et seq. ; 37 Ad. observance of formalities directed by, pp. 15, 36 power to make and enforce calls regulated by, p. 141, et seq. regulating powers of borrowing, p. 19 regulating power to issue negotiable iu- struments, pp. 23, 125, et tea. regulating remuneration of directors, pn. 16, 18, 19 '^^ ■ regulating quorum of directors, pp. 16, 17. 37 irr , t 538 Index. Articles of Association (cotUinued): regulating powers and duties of directors, pp. 16, 36, et acq., 40, el seq. f 41, Ad. regulating power to issue debentures, p. 20 regulating power to issue preference shares, p. 23 regulating power to forfeit and cancel shares, p. 23, et aeq. lien on shares of indebted member given by, pp. 28, 74, 76 provision for bankruptcy of shareholder in, p. 29 member entitled to copy of, p. 50 regulations of previously existing company to have the same effect as if contained in, p. 269 Assault: action for, against company, p. 46 Assets ; of company in winding-up, pp. 7, 116, 117 who liable to contribute to, pp. 116, et aeg., 147 nature of liability to contribute to, p. 148 collection of, in a winding-up, pp. Ixxxiii, 185, 220, et aeq. costfl of winding-up in case of insufficiency of, pp. 205, 230 distribution of surplus, pp. 205, 221, 222 Assignee : of choae in action of company may bring or defend action, p. 240. of a debt of company in liquidation, pp. 244 ; 2ii Ad. completion of title of, p. 244 Assignees : of bankrupt, as contributories, pp. 149, 151 Assignment : of shares by way of mortgage, p. 53 notice of, to company, pp. 53, 64 of debentures, pp. 21, 22 Association (see " Articles of Association," " Memorandum of Association ") : not for profit, exemptions enjoyed by, p. 390 must register, when, p. 2 winding-up of unregistered, p. 271, et seq. Assumpsit : actiou of, by broker for his commission on shares, p. 69 Attachment (aee " Execution ") : void after commencement of a winding-up, p. 252 when not restrained by injunction, pp. 252, 253 of debt due to company, imder garnishee order, pp. 45, 198, 253 Attorney (see " Solicitor ") : of company, how to be appointed, p. 48 on affidavit of, company may obtain dis- covery, p. 43 claim of, for costs of business carried on lUtm I'lri's, p. 29 examioiition of, in winding-up, p. 207 lien of, for costs, pp. 198, 253 ArrORNEY (continmed^: lien of, on company's documents, pp. 29, IS.-i, 207, 209 ; 1S& Ad. to execute company's deeds abroad, p. 133 taxation of costs of, p. 338 costs of, in County Court, p. 439 Auction: sale of shares by, p. 59 AuBiT : mode of, under Table A., p. 294 appointment of auditors, p. 294 Auditors : appointment and remuneration of, p. 294 to be supplied with copies of balance sheet. Sec., p. 294 to declare their opinion of the correctness of the balance sheet, p. 294. Authority : of broker, revocation of, p. 59 to affix seal of company, pp. 37, 48 of agents of company, pp. 16, 17, 35, 36, 37, 38, 39, 40, 42, 48, 49, 395, 396 ; 36, 37 Ad. Award (see " Arbitration ") : by arbitrator, under Bailway Companies Arbitration Act, 1859, p. 315 more than one may be made, p. 315 binding all parties, pp. 315, 316 umpire may extend time for making, p. 315 not to be set aside for informality, p. 315 costs of arbitration and, p. 316 to iiave full effect in law and equity, p. 316 B. Backadation (see " Stock Exchange ") : meaning of, p. 60 Balance Sheet: of company, form of, p. 296 to be laid before company once a year, p. 293 copy of, to be served on membei^ p. 293 Bank: liquidator's account with (see "Liquidator"), pp. 202, 329, 330, 345 power of court in winding-up to orderpay- ment into, pp. 202, 330, 360, 361 Banking Companies : partnership for, not to exceed ten unless registered, pp. vii, 2, 309, 310 cannot be formed under Industrial, &c.. Societies Acts, p. 416 to make half-yearly statement in Form D. pp. 123, 298 same to be kept at offices, p. 124 copy to be supplied, p. 124 when members of, may apply for examina- tion into affairs of company, p. 134 issuing notes not to have limited liability in respect of them, p. 264 registering with limited liability to give notice to all customers, p. 266 liable as contributories in a winding-up, p. 190 form of statement to be made by (schedule), p. 298 Index. 589 3ANKIHG Companies ifontinued) : coutracts as to sale of shares in, must describe specific shares, p. 472 shares in what, excepted, p. 473 proof in wiuding-up against, pp. 240, 241, 242 Bankrupt (see " Bankruptcy ") ! claims of company against shareholder becoming, pp. 29, 149 ; 149 Ad. shareholders, liability of, for calls, pp. 144, 149; \.i3 Ad. shares are goods and chattels within the " order and disposition" of, pp. 53, 54 contributories becoming, pp. 148, 149, 161 liability of assignees of contributory be- coming, pp. 147, 149, 150, 151 ; 149 Ad. Bankruptcy : proof for calls in case of, pp. 148, 151, 183 Uability for future calls may be proved in, p. 148 court may direct winding-up to be' con- tinued in court of, pp. 157, 158 official liquidator may prove against estate in, pp. 180, 183 presentation of petition to wind-up, equi- valent to act of, p. 253 a petition of, may be maintained by a company under the Bankruptcy Act of 1861, p. 44 of shareholder, to be provided for by articles, p. 29 enforcement in England of order of Irish Court of, p. 212 Ad. Bankkuptcy Act, 1849 : shares in one's "order and diijposition " under, pp. 53, 54 Barnard's (Sir Johk) Act : as to time bargains in public fnnds, p. 56 differs in scope from 30 Vict. c. 29 (bank- ing companies), p. 56 is noiv repealed, p. 56 Benefit Building Society : different from industrial society, p. 420 may be wound-up under Act of 1862, p. 420 Benefit Society: to publish half-yearly statement, pp. 123, 298 to keep and supply copies thereof, p. 124 penalty for neglect, p. 124 Bill (see " Equity," "Suit"): in equity against company, p. 47 for return of deposit, pp. 5, 6, 47 when demurrable, p. 48 , in equity for fraud by company, p. 34 in equity by company, p. 44 by one company against another alleging no private injury, demurrable, p. 47 in equity against directors as trustees, pp. 40, 41, 42, 255 ; 41 ^d Bill of Exchange (see " Negotiable Instru- ment ") : power of company to issue, pp. 23, 125, el Seij. Bill of Exchange (contiwued) : how made by company, p. r26 must state name of limited company, p. 122 penalties on non-publication of company's name in, p. 122 may be drawn, iSio., by official liquidator, pp. 180, 183, 224 informally accepted by company in hands of bond fide holder, p. 34 of industrial societies, p. 421 lien on shares by banking company ou account of, p. 28 set off by and against company with regard to, pp. 182, 183 proof for, in winding-up, pp. 243, 244 ; 243 Ad. Bill of Sale : may be given by company, when, p. 34 insufficient attestation of, under Bills of Sale Act, p. 49 Bills of Sale Act: attestation under, p. 49 Blank: transfers of shares in, pp. 63, 64 how affected by usage of Stock Ex- change, p. 63, et seq. Board of Directors (see "Directors," " Quorum ' ) : what is a, pp. xlvi, 16, 37, 48, 49, 65 acknowledgment of a debt by, p. 138 must exercise discretion reasonably, p. 69, et seq. minutes of meeting of, pp. 38, 137, 138 Board op Trade: may sanction company's change of name, p. 12 powers of, respecting registration office, registrars, &c., pp. 258, 259, 260 power of, as to changing registered office of company, p. 283 may appoint an umpire in arbitration under Act of 1862, s. 162, and Companies Glauses Act, 1845, when, pp. 213, 251 may appoint arbitrators for company, p. 312 may fUl vacancy in appointment of arbi- trators, p. 313 may appoint inspectors of companies. p. 133 how to deal with report of inspectors, pp. 134, 135 may alter forms, p. 146 effect of such alteration, p. 146 companies not for gain not to hold land without sanction of, p. 51 fonn of licence to hold land given by, p. 308 sanction of, as to alterations in letters patent must be obtained by companv. p. 269 ^ ■"• may license associations (not for gain) not to add the word "limited" to their names, pp. 88, 390 may authorise abandonment of railway (see "Railway Company "), pp. 475, 482, 496, 540 Index. Board of Trade (amtitmed) : form of application to, for warrant of abandonment, p. 476 protection for, in case of error in issuing warrant, p. 497 Bonds : equitable, by company, p. 34 to trustees of industrial society vest in society on registration, p. 416 for completing railway, cancellation of, pp. 496, 600 may be assigned to official liquidator, p. 600 Books : minutes of all resolutions and proceedings of company must be entered in, p. 137 presumption as to omissions in, p. 138 such entries receivable in evidence, p. 137 of company may be inspected by members under Table A., p. 293 of industrial society may be inspected by member, p. 422 of company in liquidation primd fade evi- dence, p. 238 disposal of, after a winding-up, pp. 238 239 inspection of, p. 239 extracts fiom, allowed to shareholder, p. 239 to be kept, &c., by official liquidator, p. 323 production of, pp. 206, 216 in Scotland, p. 216 falsification of, by directors, p. 265 penalty for, p. 256 Bokkowihg (see " Debentures," " Mort- gages ") : company's powers of, pp. 19, 22, 32, 33 special resolution for, p. 19 expenses in excess of powers of, p. 19 when directors have power of, p. 19 company's regulations to be complied with in, p. 19 validity of mortgage under power of, pp. 19, 20 debentures f/i-imA fade valid under power of, p. 20 debentures to pay debts under power of, pp. 20, 222, 254 under Mortgage Debenture Act, 1865, p. 464, et seq. Bbkach of Trust : directors liable in equity for, p. 40, et seq. when chargeable against directors, pp. 40, 41, 42 ; 40, 41 Ad. as to acquiescence by shareholders in, p. 41 court in winding-up may assess damages against delinquent directors for, pp. 264, 266; 255 -lit whether representatives of deceased direc- tors liable for, p. 255 Bbokbh, soc " Stockbroker." BusiNicas OF Company: how oouduotod, p. Ixxvii 0. Calls: mortgage of future, p. 22 whether payable by set-off, pp. 145, 199, 200 under Companies Act, 1867, ss. 24, 26, pp. 390, 391 regulations under Table A. as to, pp. xliii, 284, 286 annual list of company must state parti- culars of, pp. Ixvi, 102, 307 arrangements may be made for a difference between shares, as to amount and time of paying, p. 390 in default of written contract, every share liable for full amount of, p- 391 how to exercise power of making, pp. 141, 391 interest, when payable on, pp. 24, 148 who may make, pp. 31, 142 power of making, how far dependent on full subscription of capital, pp. 33, 143, 144 not relieved against, for misconduct of directors, p. 31 improper, whether restrained by court, pp. 42, 145 jobber not bound to indemnify against, pp. 61, 71 how affecting contract for sale of shares, pp. 68, 69,71; 62 Ad. purchaser bound to indemnify seller against, pp. 68, 63, 69, 71, 72, 73, 236, 237; 62 Ad. where shareholder became such through fraud on the part of the company, p. 144 on bankrupt who retains his shares, pp. 144, 149, 150; li9 Ad. right to transfer, how affected by, pp. 74, 7k 111 ; 76 Ad. evaded by transferor, pp. 76, 77, 111 forfeiture of shares for non-payment of (see " Forfeiture"), pp. xliv, 23, et seq. when illegal, p. 34 are specialty debts, pp. 30, 31, 142 not made by a proper quorum, p. 142 action for, pp. 141, 142, 143, 144, 145 special matter not necessary in, p. 141 form of declaration in, p. 145 evidence in, p. 142 against shareholder resident abroad, p. 142 how affected by company's change of name, pp. 142, 143 injunction granted against, though direc- tors themselves are deceived, p. 145 defence to action for, p. 143 pending company's change of name, p. 13 pleas of undue registration of company in, p. 145 defendant cannot claim to inspect minute books, p. 143 under 19 & 20 Vict. e. 97, p. 143 on ground of non-subscription of capi- tal, pp. 33, 143, 144 equitable plea for, p. 143 fraud of plaintiff company, », p. 144 Index, 541 Calls (continued) r defence to action for (cro. 29), p. 355 of certificate of chief clerk, p. 355 of settlement of list of contributories (Eule 31), p. 356 of order on application to vary list (Rule 29), p. 356 558 Index. Form (continueil) : to be used in winding-np (continued") : of affidavit of official liquidator in snp- port of proposal for call (Bule 33), p. 357 of summons for intended call (Rule 33), p. 357 of advertisement for intended call (Bule 33), p. 358. of affidavit of service of order for pay- ment of call (Eule 34), p. 361 of affidavit of non-payment of money, by order directed to be paid into Bank of England (Eule 40), p. 361 of request to invest cash in government stock or exchequer bills (Eule 43), p. 362 of general order for a call (Eule 34), p. 358 of notice to be served with the general order for a call (Rule 34), p. 358 of affidavit in support of application for order for payment of call due from contributories (Eule 35), p. 369 of order for payment of call due from a contributory (Eule 35), p. 359 of notice to be endorsed on, or served with order directingpayment of money into Bank of England (Eule 39), p. 360 of certificate of payment of money into Bank of England (Eule 39), p. 360 of notice (or advertisement) of meeting of creditors or contributories (Rules 45, 46), p. 363 of appointment of proxy to vote at such meeting (Eule 46), p. 363. of memorandum of appointment of a per- son to act as chairman at meeting of creditors or contribatories (Eule 47), p. 363- of chairman's report of result of meeting of creditors or contributories (Eulea 45, 46, 47), p. 364 of memorandum of sanction of judge to accepting bill of exchange (Eule 48), p. 365 to agreement of compromise (Eule 49), p. 366 of appearance book (Eule 62), p. 367 of memorandum of compromise with a contributory (Rule 49), p. 366 of order or memorandum of sanction of judge for certain acts to be done by official liquidator (Rule 50), p. 367 of summons for persons to attend at chambers to be examined (25 & 26 Vict. c. 89, s. 115), p. 367 of certificate of company being wound- up, and of official liquidator having passed his last account (Rule 66), p. 368 of order to dissolve company (Rule 66), p. 368 used in Stannaries Court, p. 374, et seq. of notice of appeal in Stannaries Court, p. 374 Form (contimied): used iir Stannaries Court (continued) : in the matter of winding-up under the Companies Act, 1862, p. 374 of bond to registrar for prosecution of appeal, p. 374 of petition of appeal in ordinary cases on the equity or common law side of court below, p. 375 of petition of appeal in a matter of winding up, p. 376 under Companies Act, 1867, p. 408, et sea, of order on petition under Act of 1867 (Rule 4), p. 408 of affidavit verifying list of creditors (Rules 7, 9 ), p. 408, et seq. of order and minute for reduction of capital, p. 387 under Industrial, &c., Societies Act, p. 435, et seq. of certificate of registration, pp. 430, 435 of rules, p. 433 of certificates, pp. 435, 436 of declaration to accompany alteration of rules, p. 436 under Liquidation Act, 1868, pp. 443, 445, et seq. of application for abandonment of railway under Act of 1850, p. 475 under Mortgage Debenture Act, 3868, p. 469, et seq. Board of Trade may alter, in schedule to Act of 1862, p. 146 FOKMALITT : in transfers when material, pp. 55, 63, 64, 66 Formation of Compant (see " Company") : instructions for, p. xx mode of, pp. 3, 7 expenses of, pp. 3, 4 Fkanchise : shareholders in company not entitled to, pp. 54, 55 members of an illegal company not entitled to, p. 2 Fraud (see "Articles," "Company," "Di- rector,'* " Promoter," "'Prospectus," " Re- gistration ") : how far attributable to company, pp. 34, 35, 38, et seq., 46 of agents of companyj pp. 38 et seq., 46 how far company liable for, p. 38, et seq. company not allowed to benefit by, p. 38 whether company liable in an action of deseit for, pp. 38, 39 liability of agents of company concerned In, pp. 33, 39, 40 liability of servants of company concerned in, p. 40 in prospectus, pp. 5, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 108, 109 when ground for rescinding contract for shares, p. 89, et seq. acquiescence in, pp. 93, 95, et seq. alleged, under a winding-up, pp. 34, 255 ; 2,M Ad. Index. 559 Fraud (continued) : of directors, &o., punishable as a misiJe- demeanor, p. 256 punishment of, in officers of friendly society, p. 429 " •" Frauds, Statute of : company's agent within, pp. 38, 396 Fraudulbnt Prbference : by a company, what is n, pp. 222, 253, Friendly Society (see "Company,"' "In- dustrial and Proyident Society ") : acts relating to, applicable to Industrial and Proyident Societies, p. 429 Funds: bargains as to stock in public, pp. 56, 69 G. Gaming : within 8 & 9 Vict. o. 109, s. 18, p. 58 Garnishee Order : where company is iudgment debtor, pp. 45, 198, 253 Gazette : advertisement in, of intention to apply to change registered office of company, p. 284 advertisements with regard to winding-up in, pp. 333, 334 notice of voluntary winding-up in, p. 220 General Directions : under Act of 1867, p. 407 General Meeting (see "Extraordinary Resolution," " Special Kesolution "): of company, to be held within four months after registration, p. 397 penalty for not holding, p. 397 to be held once yearly, p. 129 at what time to be held, pp. 130, 288 notice of, pp. 129, 131 how votes to be taken at, pp. 131, 132 proceedings at, p. 131 poll at, p. 131 director may, as a shareholder, vote at, though prohibited by articles, as direc- tor, p. 131 provisions where no regulations as to, p. 132 who may summon, p. 132 evidence of proceedings at, p. 137 power of, to increase capital, pp. 23, 287 to wind-up voluntarily, p. 217 power of, under certain articles, pp. 9, 19, 20, 23 cannot authorise excess of company's powers, p. 23 cannot authorise forfeiture of shares unless power expressly given, p. 23 on conclusion of voluntary winding-up, p. 229 under regulation of Table A., p. 288 when ordinary, p. 288 when extraordinary, p. 288 particulars of requisition for calling, p. 288 General Meeting (continued) : under regulation of Table A. (continued): proceedings at, p. 288 votes of members at, pp. 289, 290 notice of, p. 288 what is special business at, p. 288 for what purpose is the presence of a quorum essential at, p. 288 quorum at, pp. 288, 289 to be dissolved or adjourned if no quorum present, p. 289 may be adjourned by chairman from time to time with consent of meetiuer, p. 289 ' If adjourned, can only transact the busi- ness of the original meeting, p. 289 chairman of board of directors Is the chairman at, p. 289 In his absence meeting to choose chair- man, p. 289 chairman's declaration evidence (In the absence of a poll) of the passing of a resolution at, p. 289 poll to be demanded by five members, and to be taken as chairman may direct, p. 289 General Orders and Eules: power to make, for regulation of winding- up, pp. 2S7, 258 power to make under Companies Act, 1867, pp. 388, 389 regulating remuneration of official liquida- tor, pp. 179, 323, 324 under Liquidation Act, 1868, p. 445 of Court of Chancery, pp. 317, 401, 445 of County Court, p. 438 of Stannaries Court, p. 369 Goods and Chattels : shares are, within the meaning of Bank- ruptcy Act, 1849, p. 53 shares may be declared on as, in an action for their sale and purchase, pp. 54, 67 Government Annuities : dividends on, to be received by Bank of England for official liquidator, p. 331 Guarantee (see " Company ") : when a debt of company, p. 127 action on, against company, p. 46 company limited by, p. 7 memorandum of association of, p. 10 may change name, p. 12 signature of articles of association of, p. 13 limitation of liability In, to undertaking, pp. 116, 117 effect of an order to wind-up, p. 176 effect of winding-up on share capital, &c., of, p. 225 when existing company not to register as, p. 262 what companies may register as, p. 263 resolution declaring amount of guarantee to be conditions of, p. 269 memorandum and articles of association of, where capital not held in shares, pp. xxiil, xxylil, 299 660 Index. Guarantee (continved): company limited by (coTitinued) : where held in shares, pp. xxii, xxxiii, 304 not having its capital divided into shares, regulations of, p. 300 general meeting of, p. 301 proceedings at, p. 301 mode of commencing, p. 301 to be dissolved if no quorum is pre- sent, p. 301 chairman of, to be chairman of direc- tors, p. 301 chairman may adjourn, p. 301 declaration by chairman, evidence of the passing of a resolution, if no poll, p. 301 mode of taking poll at, p. 302 a member is to have but one vote at, p. 302 rights of proxies of, p. 302 notices of, p. 303 form of proxies at, p. 302 voluntary winding-up of, p. 303 election and powers of directors of, p. 302 business and accounts of, p. 3^'2 H. Heabino (see "Company," "Court," "Peti- tion," ""Winding-up"): of petition for winding-up, pp. 164, et seq. ; 159, 165 Ad. costs of parties appearing at, pp. 167, 168 ; 167 Ad. of petition to reduce capital, p. 406 proceedings at, p. 406 adjournment of, p. 407 Heirs : of deceased contributories, pp. 150, 197, 203 HoLDBP. (see "Shareholder"): of debentures (see " Debentures"), p. 20 rights of, p. 22 of negotiable instrument, p. 126 rights of, pp. 126, 127, 248 of company's securities iu winding-up, proof by, pp. 240, 242, 243 ; 241, 242, 243 Ad. Hotel : objects of company for keeping, pp. 8, 19 I. Illegal: company, shares in, p. 59 association, when, pp. 2, 282 society, when criminally, p. 416 Immoeal Purpose : society when founded for, p. 431 Inchoate Company : money subscribed for, pp. 3, 6 IncouPokation (see " Corporation ") : effect of, pp. Ixviii, 82, 33 of companies and associations, p. 3 new certificate of, on change of name of company, pp. 12, 50 Incorpokation (amtimied) : certificate of, to be evidence, pp. 32, 49 certificate of, to be granted by registi-ar, p. 259 fees for certificate of, p. 259 of previously existing company, certificate of, p. 267 of industrial and provident society, p. 430 certificate of, pp. 430, 435 Indemnity against Galls : of seller bv purchaser of shares, pp. 61, ei seq., 70, 71, 72, 236 action at law for, pp. 61, 236, et seq. ; 62 Ad. cannot be maintained against dealer on Stock Exchange, pp. 61, 62, 63 suit in equity for, p. 69 cannot be maintained against dealer on Stock Exchange, p. 71 may be against ultimate purchaser, p. 71, etseq. implied contract of, with broker, p. 56 Industrial and Provident Societies : Consolidation Act, pp. 414, 434 repeal of certain sections of, p. 428 winding-up of, pp. 414, 419 no appeal lies to a common law court from a county court winding up, p. 420 dissolution not to prevent winding-up of, p. 420 how far like and unlike companies, p. 414 limitation of interest in, to 200^., pp. 414, 428 not liable to stamp duty, pp. 414, 429 exempt from income tax, pp. 414, 434 subject to supervision of registrar, pp. 414, 422 general effect of acts relating to, p. 414 objects of, p. 415 may not carry on banking, p. 415 rules of, pp. 416, 417, 433, 435 alteration of, or addition to, pp. 432, 433 signature and effect of, p. 418 copies of, to be forwarded to registrar, p. 430 copies of alterations in, or additions to, p. 432 not to use name already in Tise, p. 417 penalties for non-publication of name of, pp. 417, 418 must have registered office, p. 418 registration of, pp. 416, 430, 431 evidence of, pp. 416, 430 effects of, pp. 430, 431 transfers property from trustees to society, pp. 416, 417 power of, to sell and convey lands, p. 430 trustees for, p. 416 liabilities of present and past members of, pp. 421, 422 acts relating to friendly societies applicable in what respects to societies registered as, p. 429 member may uumiuate successor on death, p. 432 to be distinguished from benefit-building socit^ties, p. 420 Index. 561 Industrial and Pkovident Societies (continued) : private society in nature of, p. 421 governed by Joint-Stook Acts as to bills of exchange, and admissibility of register in evidence, p. 421 may be constituted under Companies Acts, p. 422 membei-s may inspect books of, p. 422 determination of disputes of, p. 429 jurisdiction of sheriff in Scotland with regard to, pp. 422, 429, 430 annual returns of, to be prepared as registrar may direct, p. 422 form of, p. 423, et seq. recovery of penalties in case of, p. 432 matters provided for in the rules of (sche- dule), p. 435 • forms relating to, p. 435 certificate of registration to be given under act, p. 435 certificate to follow rules, p. 436 certificate of alterations, &c., of rules, p. 436 certificate of changed name, p. 436 declaration to accompany alteration, &c., of rules, p. 436 Infant {see " Contributory ") : transfer of shares to, pp. 55 188 ; 55, 188, 189 Ad. not void, but voidable, p. 189 when a contributorv, pp. 188, 189 ; 55, 188, 189 Ad. Infokmal Tbansfek: of shares, p. 63, et seq. at law, pp. 63, 64 in equity, p. 64, et seq. Injunction : against company, pp. 23, 47 when refused against company, p. 44 when granted against directors, pp. 27, 42 after commencement of winding up, in re- straint of other proceedings, pp. 162, 271 in restraint of execution, pp. 163, 164, 174, 214, 222, 226, 227, 252, 253 in the case of voluntary winding-up, pp. 214, 222, 226, 227 how obtainable, p. 227 to restrain proceedings pending winding- up of unregistered company, p. 277 Inspection : of company's books and documents in legal proceedings, pp. 43, 45, 143 after order for winding-up, p. 239 of company's books under Table A., p. 293 of company's books by inspector, p. 134 penalty for not allowing, p. 134 costs of, how to be defrayed, p. 135 of books of industrial society, p. 422 of documents kept by registrar, p. 259 of file of proceedings in winding-up allow able, p. 335 of register under Mortgage Debenture Act, 1865, p. 461 Inspectors : may be appointed to examine into affairs of company, p. 133 who may apply for, p. 134 application to be supported by evidence, p. 134 may inspect books and accounts, p. 134 to report results of examination, p. 134 company may appoint, by special resolu- tion, p. 135 to report to the company, p. 135 powers of, p. 135 report of, admissible in evidence, p. 135 Inspectokship Deed : effect of, when executed by a company, p. 222 Insurance Companies: definition of, pp. v, 1 existing ones, registration by, p. ix provisions in policy of, not to be invalidated, p. 117 to publish half-yearly statement, p 123 to have and supply copies, p. 124 form of, p. 298 must register within specified time, p. 281 penalty for neglect, p. 282 Interest (see " Company," *' Member," " Share," &c.) : when payable on overdue calls, pp. 24, 148 on calls under regulations of Table A., p. 285 on debts of company, how affected by winding-up, pp. 240, 241 ; 241 Ad. on deposits in banking company in liqui- dation, pp. 240, 241 claim for compound, p. 241 on calls made in a winding-up in Scotland, p. 211 on calls in winding-up, pp. 72, 148 on damages against company for register- ing forged transfers, p. 76 on notes of banking company, pp. 202, 223 26th rule allowing, on company's debts held invalid, p. 326 of member of company, is personal estate, p. 51 of members of industrial societies, limita - tion of, p. 428 Interpleader : in Stannaries Court, p. 209 Interpretation : clauses of the Consolidated General Orders, pp. 339, 407, 450 of terms in Railway Abandonment Act, 1850, p. 493 in Mortgage Debenture Act, 1864, p. 408 in Liquidation Act, 1868, p. 440 in Stannaries Act, 1869, p. 505 Interrogatories : may be delivered to officers of company, pp. 45, 181, 182, 223, 224 Invalid Tbansfbrs : do not release from liability to contribute, p. 193 Ireland : orders made in England, how enforced in, p. 211 662 Index. Irici.and (continued) : enforcement in England of orders of Court of Bankruptcy in, p. 212 Ad. judicial notice of signature of officers in, p. 214 who may take evidence in, p. 215 affidavits, how taken in, p. 216 Lord Chancellor of, may make new rules, p. 258 till made, present practice to continue, p. 258 Liquidation Act, 1868, does not extend to, p. 440 penalties under Mortgage Debenture Act, 1865, recoverable in, p. 468 J. Jobbers on Stock Bxohakge : rights of, pp. 59, 70, et seq. duties of, pp. 69, et seq, 71 when liability of, ceases, pp. 62, 63, 70, 71, 72, 73 ; 62 Ad. when bound to indemnify seller of shares, pp. 61, 62, 63, 70, 71, 72, 73 entitled to specific performance of contract for shares, p. 70 advantages of employing, pp. 69, 60, 61, 62 Joint-Stock Companies (see " Company ") : definition of term, p. 264 what to be done by existing, for the pur- pose of registering, p. 264 what provisions of acts of, to apply to in- dustrial and provident societies, p. 421 Judge (see " Court," "Winding-up"): may order inspection of register, p. 106 rectification of register, p. 107 inspection of register of mortgages, p. 123 security for costs by company, when, p. 140 principle of ordering, pp. 140, 141 powers of, in winding-up, p. 161 power of, to alter time for doing any act in a winding-up, p. 338 powers of, with respect to official liquida- tor, pp. 178, 321, et seq. direction of, as to meetings of creditors or oontributories, p. 332 to sanction, by memorandum, bill by official liquidator, p. 332 to sanction compromises by memorandum or order, p. 333 direction of, to liquidators to be obtained upon summons, p. 333 application to, under sects. 137, 138, 141, 167, or 168 of Act of 1862, p. 333 has discretion to gmut order for inspec- tion of company's books, p. 239 in chambers, power of, to set aside com- promise by liquidator, p. 246 power of County Court, as to framing rules and orders, p. 399 scale of costs to be framed by County Court, p. 400 Judge in Chambers : appeal from, pp. 212 ; 213 Ad. jurisdiction of, pp. 106, 107, 123, 161, 407 to appoint day for hearing of petition for a division of assets in specie, p. 447 Judgment ; against shareholder, p. 52 shares may be charged under, pp. 52, 53 against company, pp. 36, 46, 198, 263 remedies under, pp. 45, 49, 152, 166, 167, 198, 253, 273 Judgment-Ckeditok (see "Judgment"'): of company, p. 198 rights of, p. 198 of railway company may apply for warrant of abandonment, when, p. 501 JuBiSDiCTiON (see "Judge," "Judge in Chalnbers ") : court having, for winding-up, pp. Ixxxvi, 167, 158, 272, 398, 419 of Court of Bankruptcy, pp. 157, 158 petitioner for winding up resident out of, compelled to give security for costs, p. 31 8 of court under Railways Abandonment Acts, pp. 499, 500 ; 600 Ad of Stannaries Court, statutes relating to (see " Court '), pp. 378, 505 of Sheriffs Court in Scotland, with regard to industrial, &c., societies, pp. 422, 429, 430 of County Court, pp. 429, 430 Justices of the Peace: penalties may be recovered before, p. 136 penalties, application of, by, p. 137 Laches (sec "Contract," "Shares"): what is, pp. 96, 99, 100 in cases of fraud, or variance between prospectus and memorandum or articles, p. 96, et seq. Land; may be held by company, when, p. 51 form of licence to hold, p. 308 franchise from, in possession of company, pp. 2, 64 powers of Industrial and Provident Socie- ties with regard to. p. 430 Landownebs : lights of, under Bailways Abandonment Acts, p. 491 Legal, Interest; in shares, nature and incidents of, p. 54 Legal Proceedings (see "Action," Equity," " Winding-up ") : by and against companies, p. 43, et seq. to obtain inspection of register, p. 106 to obtain rectification of register, p. 107 to obtain inspection of register of mort- gages, p. 123 for recovery of penalties, p. 136 against member of company, p. 141, etMq. in court of vice-warden of Stannaries, pp. 505, 510 Index, J63 Legal Proceedings (confinued) : limited companies may be required to give security for costs in, pp. 140, 141 declaration in, against members, p. 145 against company to be stayed on order to wind-up, p. 173 to be void during winding-up, p. 251 to cqntinue after registration of previously existing company, p. 268 Letter of Credit : distinguished from a bill of exchange, p. 127 ^ how affected by suspension of bank, p. 242 Levels : railway company liable for damage caused by taking, p. 487 Liability (see "Company," "Member," "Shareholder"): when personal, of secretary, p. 3 of promoters, p. 3 of signer of document on behalf of com- pany, pp. 122, 125 of agents of company, p. 36, ei seq. of present and past members of a company, p. 116, et seq. of contributory, nature of, pp. 148, 149, 150 of present and past members of industrial society, p. 421 of devisees of land as contrlbutories, pp. 150, 203 Libel : action for, against company, p. 46 by company against shareholder, p. 44 Licence : by Board of Trade to company to hold land, form of, p. 298 Lien: of company on shares, pp. 28, 47, 74, 101 on property of company under conditional contract for shares, p. 88 on company's gooda after commencement of winding-up, p. 198 claimed on books and papers of company, p. 207 court may determine questions as to, p. 207 of solicitor, on documents of company, pp. 198, 209, 253 ; 185 Ad. Limitation : of interest of members of industrial socie- ties, pp. 414, 428 Limited Company (see " Company") : may, by special resolution, make liability of directors unlimited, p. 383 Limitkd Liability (see "Articles," "Com- pany," " Winding-up"): principle of, p. i definition of, p.. i advantages of, p. ii registration of existing companies with, p. X how obtained by individual traders, p. xv how obtained by a partnership, p. xvi mode of obtaining, for company, p. 7 of a company limited by shares, p. 7 of a company limited by guarantee, p. 10 Limited Liability (continued) : a company with, may issue new shares, alter amou n t of shares, and con vert shares into stock, pp. 12, 389 may have directors with unlimited lia- bility, p. 380, et seq. power of company with, to change name, pp. 12, 13, 50, 51 articles of association for company witli, p. 13, et seq, application of Table A. to company with, p. 29 liability of past and present members of company with, p. 116, et seq. name of company with, to be published, pp. 121, 122 bank and assurance companies, benefit societies, &c., with, to send half-yearly statement to registrar, pp. 123, 298 companies with, may be required to give security for costs, pp. 140, 318 only a joint-stock company to register with, p. 262 ■ existing company limited by act of Par- liament not to register with, p. 262 liability of members of existing companies, registering with, to continue, p. 262 what existing companies may register with, p. 263 joint-stock companies capable of register- ing with, p. 264 requisitions for registration by, p. 264 particulars to be sent to registrar by ex- isting company registering with, p. 264 banking company registering with, to give notice to customers, p. 266 not to be claimed with respect to issue of notes, p. 264 form of memorandum of association for company with, p. 299 industrial societies may have, p. 430 publication of name of industrial societies registered with, p. 417 under bill of exchange, p. 129 Liquidation Act, 1868 : application of, p. 440 assets may be divided in specie under, p. 441 foreclosure by notice under, p. 442 procedure under, p. 443 schedule of, p. 443 general order and rules under, p. 44.5 interpretation clause of, p. 450 petition for rehearing scheme under, p. 448 general practice of court, to apply under, p. 449 orders under, to be drawn up in cham- bers, p. 449 solicitors to be allowed higher scale of fees under, p. 450 schedule of fees under, p. 450 Liquidators (see "Official Liquidators," " Winding-up ") : powers and duties of, pp. xcvii, et seq., 180 et seq. 304 Index. JjIQuidatoks (continued) : court may appoint, provisionally, pp. 162, 164 appointment of, pp. xcviii, 177, 178 supplying vacancies in office of, p. 179 payment of, pp. 179, 323, 324 style and title of, p. 179 discretion vested in, p. 184 may appoint a solicitor, pp. 184, 337 to report to registrar order for dissolution, p. 206 penalty for default, p. 206 in voluntary winding-up, appointment of, p. 221 notice of appointment of, p. 223 if more than one, p. 221 each may exercise powers of all, when, p. 221 when not, p. 224 remuneration of, p. 221 powers of, pp. cix, 221 duties of, pp. cix, 221 may make calls, p. 221 appointment of, may be delegated, p. 225 to pay debts and adjust rights of contri- butories, p. 222 may apply to court, p. 226 may call meetings, p. 228 how vacan ciesinoffioeoftobefiUed, p. 228 court may appoint or remove, pp. 228, 229, 235 to make up and produce accounts to meeting, p. 229 to report meeting to registrar, p. 229 may be appointed official liquidators, p. 235 in winding-up under supervision, addi- tional may be appointed, p. 234 may be removed by court, pp. 234, 235 powers of, p. 234 may propose general scheme of liquidation, p. 244 power of, to compromise, p. 245 may accept shares, &o., as consideration for sale of property, p. 246 power to compromise generally, pp. 244, 245, 246 J 246 Ad. court may assess damages against, p. 254 may apply for examination into conduct of officers, p. 254 of an unregistered company may sue aud be sued, p. 278 effect of invalid appointment of, p. 139 powers of directors cease on appointment of, pp. 182, 221, 223, 224 costs against, in an aotion, liquidation being under supervision, p. 224 discretion of, as to sanctioning transfers after winding-up has oommeuced, pp. 69, 70, 219, 235, et seq. cannot cancel forfeiture of shares, p. 220 notice by, under Liquidation Act, 1868, p. 444 Li.s Pendkns : petition for a winding-up made a, p. 206 section making it so repealed, p. 206 List or Contributoeies, see "Gontribu- tories " List op Creditors : when company reduces capital, pp. 385, 402, 403 to be settled by court, pp. 385, 404, 405 saving of rights of creditors not entered in, pp. 387, 388 copy of, to be kept at company's office, p. 403 List op Members : annual, to be made by limited company, p. 102 to be sent to registrar, p. 103 should contain what particulars, p. 102 penalty for not sending to registrar, p. 103 to show amount of stock held by member in lieu of shares, p. 101 to contain particulars of share warrants, p. 393 particulars to be contained in, after issue of share warrants, p. 393 to be sent by previously existing company to registrar on registration, p. 264 Lunatics; shares of, to be transferred by order in lunacy, p. 55 M. Majokitt (see " General Meeting ") : registration of previously existing com- pany must be assented to by a, p. 262 computation of, at a poll, p. 263 what is a, at a general meeting, pp. 131, 132 constituted by member interested in passing of resolution, p. 132 Mala Fides : of plaintiff in equity, p. 47 Manager of Company : penalty on, for not keeping register of members, p. 101 for not sending annual list to registrar, p. 103 for refusing inspection of register, p. 106 for not using name of company, p. 122 for not keeping register of mortgages, p. 123 for refusing inspection of, p. 123 for not making half-yearly statement, p. 124 for not sending special resolution to regis- trar, p. 132 for omitting to supply copies of same, p. 133 evidence of proceedings of, pp. 137, 138 validity of appointment and acts of, pp. 36 et seq., 137, 138 personal liability of, pp. 38, 39, 40 prosecution of, may be ordered, p. 256 claims by, in winding-up, pp. 241, 242 that is limited may have unlimited lia- bility, p. 380, et seq. Index. 565 Managing Dibectok (see "Agents," "Di- rectors," " Manager") : acts of, when binding company, pp. 6, Marriage : coutributories in case of, pp. 151, 162 Meeting of Company (see " General Meet- ing," "Eeeolution"): when general, pp. 131, 288, 289 to be held four months after registration, p. 397 to be held once a year, p. 129 may alter regulations of articles of associa- tion, p. 130 special resolution of, definition of, p. 131 how to be passed, p. 131 notice of, to be given, p. 132 votes of members at, p. 132 live members may call, p. 132 who to be chairman of, p. 132 evidence of proceedings at, p. 137 acts of, to be valid, p. 137 proceedings of, to be duly entered, p. 137 for winding-up voluntarily, pp. 217, 218 to resolve that company cannot continue its business, p. 217 to appoint liquidators for voluntarily wind- ing-up, pp. 221, 223 liquidators may call, p. 228 to fill up vacancies in office of liquidator, p. 228 to receive account of liquidators, p. 229 to be reported to registrar, p. 229 to sanction general scheme of liquidation, p. 244 to sanction compromise, p. 245 to approve receipt of shares, &o., in pay- ment for property sold, p. 216 to consent to registration under act, p. 262 for abandonment of railway, p. 476, et seq. proceedings at, pp. 477, 478 ' authority of, pp. 479, 480 MioMBEKs OP Company (see "Shareholder," "Shares"): definition of term, pp. Ixv, 77, et seq. what constitutes conti'act of, pp. 77, 78, 80, et seq. rescission of contract of, p. 88, et seq. effect of winding-up order on power of rescinding contract of, p. 98, et seq. register of, to be kept, pp. Ixv, 100 rectification of register of, p. 108, et seq. annual list of, to be made, pp. Ixvi, 102 sent to registrar, p. 103 certificate of share or stock to be evidence of title of, p. 105 register of, to be open to inspection, p. 106 copies of to be supplied, p. 106 notice of increase in number of, to be given, p. 107 liability of present and past, pp. Ixxxi, 24, 116, 119, 147 when sums due to, to be set off against calls, pp. 117, 198, 199 entitled to copy of half-yearly statement, p. 124 Members of Company (caitt'mued) ; penalty for carrying on business with less than seven, p. 129 rights, powers, and duties of, p. Ixv payment of calls by, p. Ixvii action against, for non-payment of calls, pp. Ixvii, 141, et seq. forfeiture of shares of, p. 23, et seq. aa joint shareholders, p. Ixviii signature of, to memorandum of association, p. 11 signature of, fco articles of association, p. 30 moneys due from, to the company to be in the nature of a specialty debt, p. 30 to be bound by articles of association, p. 30 bound to know contents of articles, p. 14 iaterest of, to be personal estate, p. 51 shares capable of transfer by, pp. Ixvi, 51, 55, 100 regulations for meeting of, pp. 129, 130, 131 how special resolutions to be passed by, p. 131 poll of, at meetings, p. 131 votes of, p. 132 five may summon meeting, p. 132 may apply to Board of Trade to appoint inspectors, p. 134 status of, not to be altered after resolution to wind-up voluntarily, p. 219 after commencement of winding-up by the court, pp. 235, 238 consideration for sale of company's pro- perty to be divided amongst, pp, 246, 247 dissentient, rights of, pp. 17, 249 250 dissentient may be paid off, pp. 247, 248 how value of interest to be deter- mined, pp. 250 ; 250 Ad. prosecution of, may be ordered, p. 256 in case of existing companies, may consent to register under act, pp. 262, 263 execution not to issue against, for claims on company, p. 268 liabilities of, in case of industrial and pro- vident societies (see " Industrial, &c.. Societies"), p. 421 under Table A., p. 289 rights of, as to votes, p, 289 have one vote for every share up to ten, afterwards one vote for five and for ten shares, p. 289 lunatic or idiot, vote by committee, p. 289 first only of joint owners of a share votes, p. 289 voting, must have paid calls due, p. 289 and have had share three months pre- viously, p. 289 may vote by proxy, p. 290 must appoint proxy by writing, p. 290 form of proxy, p. 290 one of several holding jointly may give receipt for dividend, p. 284 entitled to certificate of shares, or renewal thereof, p. 284 suing in their own names on behalf .uf unregistered company, p. 281 566 Index. Membership of Company : how proved, pp. 143, 144 Memorandum of Association: is the charter of company's powers, p. 33 the objects of company must be stated in, pp. 8, 9 how to frame, p. xxii seven must subscribe, p. 3 may limit liability, p. 7 for a company limited by shares, pp. 7, 299 subject to what regulations, p. 8 for a company limited by guarantee, pp. 10, 299 for a company limited by guarantee, and having a share capital, p. 304 for an unlimited company, pp. 11, 305 stamp, signature and effect of, p. 11 power to alter, pp. 12, 383, 384, 389 what companies may alter, p. 12 power to change name in, pp. 12, 50 copies of, to be sent to members, pp. 50, 383. 388, 389 subscription of, constitutes membership, p. 77, et seq. subscribers to, as directors, p. 6 evidence of due subscription of, p. 49 subscribers of, to take one share, p. 8 to state number of shares taken, p. 8 subscribers to, must take shares opposite their names, p. 78 such shares should not be nominally paid- up, pp. 78, 79, 80 ; 79 Ad. immaterial that the shares have not been allotted, p. 78 may transfer shares at once, p. 78 what ai-e paid-up shares of, pp 79, 80 ; 79 Ad. distinction in, between shares generally and paid-up shares, pp. 79, 80 allotmpnt of a greater number of shares than those subscribed for in, p. 79 subscription of, by partner as for firm, p. 79 regi.'^lration of, p. 31 effnct of, p. 32, et seq. alteration in, after signature, and before registration, pp. 30, 49 contract to take shares may be rescinded on ground of variance between prospectus and, p. 94, et seq. when shareholder presumed to have notice of, pp. 5, 8, 94, 98, 100 Mining Companies (see " Cost Book," "Stannaries"): Act of 1862 not compulsory upon, pp. xv, ^ when to be deemed unable to pay debts, pp. 156, 273 who a contributory on the winding-up of, pp. 276, 510 cannot issue negotiable instrument, p. 126 application of Industrial and Provident Societies Acts to, pp, 415, 428 Mining PARTNEusuirs (see " Mining Com- pany," " Stannaries"), p. 505, et seq. MiNUTis : for riKlucing capital to form, when regis- tered, part of memorandum, p. 387 Minute (continued) : copy of, to be registered, p. 386 Minutes : of resolutions and proceedings of company to be kept, pp. xlix, 137 may be signed by chairman of meeting to which they relate, pp. 137, 138 by chairman of next succeeding meeting, pp. 137, 138 proceedings pi-imA fade valid of which there are, pp. 137, 138 presumption against company in absence of, p. 138 presumption as to signature of chairman in case of erasure in, p. 138 chairman signing, held agent withinStatute of Frauds, p, 138 Misdemeanor : persons falsifying books of company guilty of, p. 255 Misrepresentation : by company, pp. 5, 34, 35, 38, 39, 46, 89, et seq. liability of company to action for deceit for agents guilty of, pp. 38, 39 share-taking contract founded on (see " Company," " Member," " Shares," &c.), p. 89, et seq. may be rescinded within reasonable time, pp. 88, 90, et seq. not after commencement of winding-up, pp. 98, et seq. ; 99 Ad. may be pleaded to action for calls, p. 89 shareholder alleging, must raise objection without delay, pp. 90, 95, et seq. position of transferee of, pp. 89, 94 position of allottee alleging, who is also a transferee in same company, p. 97 what is a reasonable time within which to allege, pp. 94, 95, 96, 97, 98, 100 in prospectus of company, pp. 5, 94, 95, et seq. of objects of company, pp. 5, 8 as to capital having been subscribed, pp. 6, 33, 89, 90 Moneys: application of, under Railways Abandon- ment Acts, pp. 48S, 499 Mortgage : affecting property of company must be entered in register, p 123 assignment of shares by way of, pp. 53, 54 incomplete bonds for, pp. 19, 20 of future calls, p, 22 Mortgage Dkbentuke Act, 1865: title of, p. 45-1 extent of, p. 454 what company may avail itself of, p. 454 company may borrow money under, p. 456 securities on which debentures may be founded under, p. 456 production of, to registrar, p. 456 establishment of register of, p. 457 registrar may register deed creating security uniler, p. 457 but not without surveyor's declaration, p. 457 Index. 567 MoRTGAOB Debenture Act, 1865 (core- tinutd) : company may issue debentures to what amouat under, p. 458 company must file return before issuing debentures under, p. 458 containing what particulars, p. 458 company may issue new debentures in lieu of those paid off under, p. 459 provision with regard to registered securi- ties charged with payment of debentures under, p. 469 rights of holder of debentures under, p. 459 securities registered under redemption of, p. 459 remedy of owner of, when company is in default, p. 460 determination of fees under, p. 461 -collection of fees under, p. 461 inspection of register under, p. 461 quarterly returns to be made to registrar under, p. 461 quarter days for purposes of, p. 461 quarterly returns, how made under, p. 462 how estimated under, p. 462 total amount of registered securities, under, p. 462 form of debenture under, pp. 463, 471 company to keep register under, p. 463 terms on which debentures issued under, p. 463 debentures under, to be numbered, p. 463 to be endorsed, p. 463 to be entered in a book, p. 464 to be registered, p. 464 indorsement of registrar on debenture to be conclusive evidence under, p. 464 requires entry of discbarge of mortgage debenture, p. 464 transfer of debenture under, p. 465 to be entered in transfer book, p. 465 stamps under, p. 465 power to trustees to invest money in de- bentures under, p. 465 power to appoint receiver given to owner cf debenture under, p. 466 powers and duties of receiver, pp. 466, 467 application of act to companies ceasing to be entitled to issue debentures under, p. 467 penalties under, p. 467 recovery of, p. 468 registrar not personally liable under, p. 468 application of Joint-Stock Companies Acts, notwithstanding, p. 468 interpretation of terms of, p. 468 schedule to, p. 469, et seq. Mortgage Debentures : issued in discharge of contracts, when valid, p. 254 Mortgagee : of a ship, when not a contributory, pp. 27b, 277 of shares, rights of, pp. 53, 54 Mortgagee (continued): of shares (continued') : first giving notice to company, obtains priority, p. 54 without notice of trust of shai-es, p. 54 Mortgages by Limited Company : register of, to be kept, p. 123 penalty for omission, p. 123 to be open to inspection and copy given, p. 123 penalty for neglect, p. 123 giving a fraudnlent preference void, p. 253 Mortmain Laws : relation of, to companies, p. 32 Motion : to rectify register, pp. 107, 108 to remove name from list of contributories, pp. civ, 186 application in winding-up to be made by, p. 333 Mutual Insurance Society : nature of, pp. 274, 276 not a partnership, p. 274 may be wound-up under Act of 1862, p. 274 who contributories in, pp. 276, 277 N. Name: of company, pp. 7, 32, 121, 122 power of company to change, pp. 12, 50, 51 change of, not to affect rights or liabilities, &c., pp. 12, 13, 50 prohibition against use of subsisting com- pany, p. 50 of company to be affixed on office, and in all official publications, &c., pp. 121, 122 penalty for neglect, p. 122 persons neglecting incur personal lia- bility, p. 122 of official liquidator, p. 179 existing company registering with limited - liability must change its, p. 267 company reducing its cnpital to add " and reduced ' to its, p. 384 application by contributory for removal from list of his, p. 186 when error in, of contributory not material, pp. 336, 337 of Industrial and Provident Society, p. 430 publication of, p. 417 not to be that already used by another society, p. 417 penalties on non-publication of, p. 417 shares in bankrupt's, p. 53 Ne Exeat : writ of, when granted against a contri- butory, pp. 210, 227 Negligence : action for, against company, p. 46 when an estoppel, p. 75 Negotiable Instrument : when company authorised to issue, pp. 34, 125, 126 power to issue, how connected with bor- rowing power, p. 125 568 Index. Negotiable Instiiument (contimted) : what is a makiag of, by company, p. 125 must bear name of company, p. 122 what general words in memorandum and articles confer power to issue, p. 125 in the nature of accommodation bill, p. 125 notice to directors, that bill is, p. 125 power of banking company, as to, p, 125 power to issue, how affected by statutes relating to the Bank of England, jj. 126 question of power to issue, how to be raised, p, 126 may be transferred by company, though not baying power to issue, p. 126 effect of non compliance with articles of Association in issue of, pp. 15, 36, 126 ; 126 Ad. improperly issued by company, pp. 126 ; 126 Ad. in hands of bond fide holder, pp. 126; 126 Ad. when liability of maker of, personal, pp. 122, 128, 129 under 7 & 8 Vict. o. 110, p. 129 cla m for interest and damages under, p. 129 drawn by agent of company, p. 129 clause limiting liability under, p. 129 right of set-off of, how effected by winding- up of company, pp. 128, 182, 183 powers of official liquidator with regard to, pp; 180, 188 ; 243, 244 Ad. issued by official liquidators,- p. 183 what is a breach of contract to accept, p. 128 beariug interest warrants, nature of, p. 126 distinction between debenture and promis- sory note in the case of, p. 126 distinction between a note and a. bill of exchange in the case of, p. 128 effect of using " undertake " for "promise " in, p. 127 secretary signing, when liable on, pp. 122, 128 directors signing, when liable on, pp. 122, 128 distiogu'shed from a letter of credit, p. 127 company when restrained from negotia- ting, p. 128 guaranteed by other securities, pp. 127 : 127 Ad. when assets of company in a winding-up, pp. 128, 180, 182, 183 proof for, in a winding-up, pp. 126, 127, 128, 242, 243; 126, 127, 242, 243 Ad. of industi'ial and provident society, p. 421 Notice : of allotment of shares, pp. 81, 84, 85, 86 ; 81, 82 Ad what is a suiScient, p. 81, et seq. of conversion of shares into stock, p. 103 of increase of capital and members, p. 107 ol rectifloation of register, p. 115 of siKiiition of registered office, p. 121 of general and special meetings, p. 131 Notice (continued) : of meetings to pass an extraordinary reso- lution, p. 218 of resolution to wind-up voluntarily, p. 220 of meeting to produce liquidators' accounts, p. 229 by a banking company, of registration with limited liability to be given to its customers, p. 266 must be given by industrial society of situation of registered office, p. 418 of articles of company, pp. 14, et seq., 97, 98, 100 members of company how far affected with, pp. 14, 98, 100 tho public, how far bound to take, pp. 16, 36 of forfeiture of shares, pp. 24, 25, et seq. when essential to validity of, pp. 25, 26, 27 effect of, p. 26 must be given to directors elected with unlimited liability, p. 382 penalty for neglect, p. 383 to creditore of intended reduction of capital, pp. 384, 403 form of, pp. 403, 409, 410 publication of, p. 403 as to debentures payable to bearer, p. 403 to company of assignment of shares, p. 53 what is, p. 54 to directors, pp. 38, 54 when notice to company, pp. 38, 54 when not, p. 38 notice to directors of transfers, p. 64 company not bound to give notice of refusal to register transfer, p. 77 Ad. of call necessai-y before action, p. 142 call not due before, p. 143 pending change of name by company, pp. 13, 142 when necessary to repeat, p. 143 claiming interest on calls, pp. 24, 148 by creditor under Liquidation Act, p. 442 form of, p. 443 in newspaper of scheme for division of assets in specie, p. 448 of appeal from order of court, pp. 212, et seq. ; 214 Ad. time for giving, may be extended, p. 213 on what giound, p. 214 seven days', for meetings of creditors or contributories, p. 332 form of, p. 332 how served on company, p. 136 by letter, p. 136 authentication of company's, p. 136 how to be served on members, under Table A., pp. 294, 295 to be served on the first of joint mem- bers, p. 295 proof of service by post of, p. 295 service of, in a winding-up, p. 336 uuder Railways Abandonment Acts, pp. 482, 501 Index. 669 o. Oath: power of arbitrators to admioister, p. 314 persons may be esatuiued in wiuding-up on, p. 209 Objects : of company must be stated in memo- randum, p. 8 must be adhered to, pp. 8, 17 what is an abandonment of, pp. 9, 10 share-taking contract with company may be rescinded on ground of misrepresen- tation of, p. 94, et seq. company not compellable to abandon, p. 9 when it may do so, pp. 9, 10 company's power of contracting depen- dant on its, pp. 36, et seq. ; 36 Ad. company's power to issue negotiable in- struments dependant on its, p. 125, ei seq. of industrial and provident societies, pp. 414, 415, 428 the business of banking excepted from, p. 415 Obligations of Existing Compast: not to be affected by registration under Act of 1862, p. 268 Office : company to have registered, p. 120 when company dwells at, p. 121 penalty for not having, p. 120 service of documents, how to be effected if company has no, p. 120 demand for payment of debt where no registered, p. 121 to give notice of situation of, and change in registered, p. 121 name to be affixed on, p. 121 notices to be served at, p. 136 temporary power to change, p. 283 industrial and provident society to have registered, p. 418 to have name on, p. 417 -what is an, under a company, p. 142 Officer op Company : penalty on, for not using name of company, p. 122 may be examined on oath by inspectors, p. 134 must produce books and accounts, p. 134 penalty for omission, p. 134 may be summoned to produce books, ac- counts, &c., p. 206 court may assess damages against, pp. 254, 255 ; 255 Ad. penalty on, for falsification of accounts, p. 256 prosecution of, may be ordered, p. 256 director an, for what purposes, pp. 142, 162 does not ceade to be an, on commence- ment of winding-up, p. 162 Officeks of Coubt of Chancerv : judicial notice to be taken of signatures of, p. 214 Official Liquidator (see " Liquidator ") : should be termed simply liquidator, when, p. 178 provisional appointment of, pp. 162, 164, 322 form of, p. 343 appointment of, pp. xcviii, 177, 320 judge may appoint without notice, pp. 177, 178, 321 form of proposal for appointment of,' p. 342 practice as to appointment of, pp. xcvii, 321 advertisement for appointment of, p. 321 form of advertisement, pp. 321, 322 discretion of judge as to appointing, p. 178 appointment of, may be brought before judge from chief clerk, p. 178 sanction by chief clerk of appointment of, p. 178 costs of appointment of, p. 178 ex parte appointment of, p. 178 resignation or removal of, p. 178 vacancy on death to be filled up, as on a first appointment, pp. 179, 322 security by, pp. xcviii, 178, 321, 322 to give security with two sureties, p. 321 form of recognisance of, pp. 321, 343 of affidavit of sureties for, pp. 321, 344 , security of guarantee society may be ac- cepted by judge for, p. 321 chief clerk is to certify to security having been given by, p. 322 order of appointment of, particulars to be stated in, pp. 321, 322 form of, pp. 342, 343 office copy of, to be lodged in Bank of England, p. 322 duties of, pp. xcix, c, 179 powers and rights of, pp. xcvii, etseq., 180, et seq., 210, 244, 245 as to company's debts, pp. ci, cii, 243, 325 costs in legal proceedings by and against, pp. 253 ; 181, 182, 213 Ad. acting without sanction of court, p. 180 may apply for an attachment, when, p. 182 selling property of company, p. 182 may prove for debts under Bankruptcy Acts, 1849 and 1862, pp. 148, 149, 150, 151, 183 powers of, with regard to negotiable in- struments, pp. 128, 180, 183, 329, 330, 3S1, 332 on passing accounts, is to satisfy judge of solvency of sureties, p. 322 should make up and rectify company's books, and keep books of account, &c., p. 323 should have ledger containing separate accounts of contributories, p. 323 should leave accounts at judge's chambers, p. 324 remuneration of, pp. 179, 323 order regulating remuneration of, p. 323 should apply for remuneration by affidavit, p. 323 must produce accounts of coinpany, when, p. 209 570 Index. Opficiai, Liquidator (contiimed): power of, as to suing in bis own name, pp. 181, 278 discretion of, p. 184 appointment of solicitor to, pp. xcviii, 184 costs of solicitor of, pp. 186 ; 185 Ad. must pay moneys, bUls, notes, and other securities into Bank of England, p. 329 penalty for not so paying moneys, p. 329 should not employ company's moneys for his own profit, p. 329 must answer inteiTogatories, pp. 182, 207 payment to, by contributory, p. 202 OSDER (see " Winding-up ") : to wind-up company, operation of, p. 158 proceedings to obtain, pp. xoi, 158, 317, et seq., 401 making of, in discretion of court, pp. xc, xci, 164 proceedings under, pp. xoiv, 320, et seq. interim or other order may be made, p. 164 form of, p. 341 copy of, to be sent to registrar, p. 175 reversal or discharge of, pp. 172, 173 is notice of discharge to servants, p. 173 stays other proceedings, unless leave given, pp. 173, 174, 175, 176 application for leave to continue proceed- ings after, pp. 173, 174, 175 costs of such application, p. 176 may be made to stay proceedings in winding-up, pp. 176 ; 175 Ad. on contributory to be conclusive evidence, p. 203 for costs of winding-up, p. 205 for dissolution of company, p. 205 to be reported to registrar, p 206 power of court to enforce, p. 211 on contributories in Scotland, p. 211 made in England may be enforced in Scotland and Ireland, p. 211 of Court of Bankruptcy in Ireland enforced in England, p. 212 Ad. if made by other courts, how enforced, p. 212 appeals from, pp. 212, et seq. ; 213, 214 Ad. to wind-up unregistered company, effect of, p. 277 form of, p. 341 for voluntary winding-up under super- vision, pp. oxii, 321 form of, p. 341 reducing capital, pp. 384, 386, 406 registration of, p. 386 notice of registration of, p. 387 confirming scheme under Liquidation Act, 1868, pp. 441, 448 no caveat to„be entered against, p. 448 in chambers, how to be drawn up, p. 333 regulating remuneration of official liqui- dator, p. 323 of Court of Chancery (see " General Orders and Rules"), pp. 317, 401, 445 of County Court, under Friendly Societies Acts, p. 438, et seq. OuDEB AND Disposition : of bankrupt, shares when within, pp. 53, 64 P. Paid-dp Shaees (see " Shares ") : what are, pp. 78, 79, 119, 120 ; 78 Ad. may be converted into stock, p. 12 liability and rights of holder of, pp. 7, 78, 79, 80, 117, 119, 192 ; 79 Ad. holder of, indebted to company, p. 119 contract for, must be in writing, p. 391 must be filed with registrar, p. 391 holder of, when a contributory, pp. 148, 192,224 may petition for a winding-up, p. 159 may require calls to be made on partly paid-up shareholder, p. 224 as a qualification of directors, pp. 18, 83 liability of subscribers of memorandum taking, pp. 78, et se^. ; 79 Ad. when an express distinction between, and ordinary shares, pp. 10, 80 when a discharge of debt of company, pp. 243, 244 in industrial, &c., society, p. 431 power of company to issue, p. 390 Parol Contract : by company, pp. 35, et seq. ; 36 Ad. railway company bound by acquiescence in, p. 396 how made by company, pp. 395, 396 Paktsership (see " Company ") : principle of, p. i how to avail itself of limited liability, p. xvi prohibition of, exceeding certain number without registration, p. 2 may be wound-up under Companies Acts though unregistered, pp. Ixxxviii, 271 when and where, p. 271, et seq. when to be deemed unable to pay its debts, pp. Ixxxix, 272 who to be a contributory in, p. 276 effect of order to wind-up on, p. 277 suing as a company, demurrer to bill by, pp. 281, 282 mining (see "Stannaries"), pp. 274, 605 in C07nmendam^ p. 381 Past Member of Company : liabiUty of, pp. 116, 118 ; 118 Ad. Past Member of Industrial Society : liabilities of, p. 421 Patent : infringement of, by company, p. 47 PAyMENT(sec" Company," "Shares," "Wind- ing-up"): of full amount of all shares must be made in cash if no written contract, p. 391 by contributory of calls, may be ordered, p. 200 ' of debts by, pp. 198, 199 into bank by contributory oompulsorv. p. 202 J r J. Index. 571 Payment {continued) : of calls in voluntary winding-up, pp. 221, 224 how enforced, p. cxi Penalties : under Act of 1862, p. 136 application of, p. 137 under Mortgage Debenture Act, 1865, pp. 461, 467 nnder the Industrial and Provident Socie- ties Act, 1862, pp. 426, 432 Penalty : for omitting to supply copy of memoran- dum and articles of association, p. 50 for not keeping register of members, p. 101 for not sending annual list of members to registrar, p. 103 for refusing inspection of register, p. 106 for not giving to registrar notice of in- crease of capital and members, p. 107 for improper omission or entry in register, pp. 107, 108 for not having a registered office, p. 120 for non-publication of name of company, p. 122 f ornot keeping register of mortgages, p. 123 for not making half-yearly statement, p. 124 for not publishing and supplying copies, p. 124 for not sending list of directors, p. 124 for carrying on business with less than seven members, p. 124 for omitting to send copy of special reso- lution to registrar, p. 132 for omitting to annex it to articles of as- sociation and supplying copies, p. 133 on officer or agent refusing to produce books to inspectors, p. 134 how to be recovered, p. 136 how to be applied, p. 137 on liquidator not sending report of meeting to receive accounts, p. 229 for omitting to report order of dissolu- tion to registrar, p. 206 for falsification of books and accounts, p. 255 for perjury, p. 257 on insurance companies for not register- ing, p. 282 for not embodying in memorandum copy of resolution making liability of directors unlimited, p. 383 for not registering minute, reducing capital, p. 388 for concealing name of creditor entitled to object to reduction of capital, p. 388 for forging share warrant p. 394 for personating owner of share warrant or engraving plate for share warrant, p. 395 for nun-publication of name of industrial society, p. 417 for not sending returns to Registrar of Friendly Societies, p. 433 Perjury : in winding-up proceedings, penalty for, p. 257 Personal Estate : shares are, p. 51 Personal Liability (see " Liability ") Peksonal Representative : of deceased shareholder, transfer by, p. 100 of deceased contributory, liable, pp. 150, 197, 203 Personating :" owner of share or share warrant, p. 394 Petition (see " Order,'' " Winding-up ") : to wind-up, by whom may be presented, pp. xci, a seg., 158, 398 ; 173, 175 Ad. forms of, p. 317 presentation of, to be deemed commence- ment of winding-up, p. 162 hearing of, pp. 164, et seq. ; 159, 165 Ad. costs of parties appearing at, pp. 167, 168 ; 167 Ad. presentation of, to be equivalent to an act of bankruptcy, p. 253 nature, form, and title of, pp. 317, 401 security for costs by limited company, presenting, pp. 317, 318 petitioner resident out of jurisdiction compelled to give security for costs of, p. 318 filing of, by respondents, p. 318 advertising, seven days before hearing, pp. 164,318; 173 Ad. effect of advertisement of, p. 318 particulars of advertisement of, p 318 results of not advertising, p. 318 withdrawing, after advertising, p. 318 practice on, pp. 168, 318, 401, et seq. ought not to pray for a particular liqui- dator, p. 159 service of, pp. 120, 319 service of, at registered office, p. 319 affidavit verifying, p. 319 want of, p. 320 when to be sworn and filed, pp. 319 320 contributory and creditor entitled to copy of, p. 320 order to be made on, discretionary with court, pp. 161, 164, 169 costs of, pp. 159, 160, 161 where notice of previous petition, pp. 160, 161 dismissal of, p. 165 by creditors, pp. 152, el seq., 158, 159, 160. 166, 168; 153, 159 Ad. by contributory, pp. 159, 398 by paid-up shareholder, p 171 on the ground that objects of the com- pany are impracticable, p. 166 by one who took shares for purpose of presenting, p. 159 by a transferee of scrip certificates, p. 160 by inventor of patent who had sold it for paid-up shares, p. 160 by shareholders for a compulsory wind- ing-up, p. 160 672 Index. Petition (conttmted) : to wind-up (continued) : on ground of general fraud in company, p. 160 under supervision, p. 232 a company established before 1862, form of, p. 280 for reduction of capital, pp. 384, 385 how to be entitled, p. 402 not to be placed in list for eight days, after filing of certificate, pp. 402, 405 judge to direct proceedings under, p. 402 uotice of presentation of, p. 402 for a division of assets in specie, p. 447 hearing of, p. 448 under Liquidation Act, 1868, p. 447, et seq. practice under, p. 449, et seq. Plaint : in County Courts, under Friendly Societies Acts, p. 438 Pledgino: of shares with director, effect of, p. 54 Policy of Insurance: liability of shareholders may be limited under, p. 117 Poll (see " General Meeting") : howto be demanded and taken at a general meeting, p. 289 Powers (see "Memorandum of Association," "Objects"): of company, how limited, p. 8, et seq. depend on memorandum, p. 8, et seq. liabilities of directors exceeding their ,pp. 40, et seq. ; 18, 40, 41 Ad. persons dealing with company, how affected by excess of, pp. 15, 35, 36 ; 36, 37 Ad of borrowing, p. 19, et seq. of issuing negotiable instruments, p. 125, et seq. of Court of Bankruptcy to be same as those of Court of Chancery where winding- up referred to it, p. 157 of County Court in a winding-up, p. 398 Pkactice (see " Legal Proceedings," " Wind- ing-up," &c.): in winding-up of companies, of Court of Chancery to prevail until rules made, p. 257 of the court is to apply to a winding-up, p. 338 in County Court under Industrial Societies Act, p. 438 with regard to petitions to reduce capital, pp. 384, 401 under Liquidation Act, 1868, p. 415, et seq. Preference Shakes: power to issue, p. 23 injunction against issuing, p. 23 what authorises issue of, p. 23 when illegal, p. 10 created by special resolution, p. 130 rights of holders of, on breaking up of company, p. 205 Preliminary : expenses of company, wlio liable for, p. 4 Price : for purchase of interest of dissentient mem- bers, how determined, p. 250 of shares may be recovered in an action for " goods sold and delivered," p. 54 Price on Account (see " Stock Exchange ") : meaning of, p. 60 Principal : stockbroker acting as, p.. 56 Priority : when creditor who issues execution against company entitled to, p. 163 who entitled to, among mortgagees of shares, p. 54 Private Societt: in nature of Industrial Society, p. 421 Privity of Contract: between buyer and seller of shares, p. 63, usage of Stock Exchange determines extent and effect of, p. 63 Privy Council: form of licence by Lords of, to hold lauds, p. 308 Procedure (see " Court," " Liquidator," " Petition," " Winding-up ") : under Companies Act, 1862, p. 317, et seq. under Companies Act, 1867, p. 401, et seq. under Liquidation Act, 1868, p. 443, et seq. on petition to reduce capital, p. 401, et seq. in County Court, under Friendly Societies Act, p. 438, et seq. Proceedings : legal by, and against company, pp. Ixxv, 43, et seq. after commencementof winding-up, pp. 180, 181, 182 to compel inspection of register, p. 106 to compel rectification of register, p. 107 to obtain winding-up order, pp. xci, 158, 317, 401 under winding-up order, pp. xoiv, 320, et seq. for prosecution of delinquent directore, p. 256 for recovery of penalties, p. 136 against member of company, p. 141, et seq. security for costs by company, plaintiff in, p. 140 in judge's chambei-s, p. 334 register and file of, p. 334 may be attended by creditors and con- tributories, p. 334 at general meetings, pp. liii, 131 evidence of, p. 137, et seq. Production: of books, papers, &c., in Scotland, p. 216 of documents by company ordered, pp. 45, of documents in winding-up not to affect lien, pp. 207, 209 Promissory Note (see " Negotiable Instru- ment ") : of company, pp. 20, 23, 125, et seq. Index. 573 Promissory Note (continued) : of company (continued) : how to be made, indorsed, &o., pp. 125, et seq. ; 129 Ad. official liquidator may make, pp. 180, 183 when maker of, personally liable, pp. 122, 128, 129 made on behalf of indastrial society, pp. 277i 421 Promoters of Company: claims against company by, pp. cii, 3, 15, 16 evidence of authority of, to pledge credit of one another, p. 4 contracts by, when binding on company, pp. 3, 35 liabilities of, before registration of com- pany, pp. 3, 4 contribution amongst, p. 4 at law, p. 4 in equity, p. 4 effect of concealment of agreement between directors and, p. 16 when personally liable, p. 3 when hable for each other's acts, p. 3 Proof of Debts (see "Debts," "Winding- up," &c.) : in a winding-up, pp. ci, 240, 324, et seq. creditors not proving in time may be excluded from, p. 204 by creditors of company opposing reduc- tion of capital, p. 385 proceedings of Stannaries Court in, p. 204 Property : of company ordered to be wound-up to be in custody of court, p. 178 afterwards in official liquidator, p. 179 official liquidator may sell, pp. 180, 182, 328, 329 court may order delivery up of, p. 197 sale by liquidators of, p. 246 effect of registration of existing company on its, p. 268 of industrial society, becomes vested on registration, p. 416 includes a chose in action^ p. 416 Prospectus (see " Articles," " Company," "Contract," "Fraud," " Memorandum," " Misrepresentation," " Variance ") : preparation of, p. xxxv, 5 usual statements in, p. 5 effect of misrepresentation in, p. 5 what defect in, will avoid share-taking contract under, p. 5 fraud in, pp. 5, 89, et seq. dictum of Lord Chelmsford on, p. 5 should state particulars of previous con- tracts with company, p. 397 variance in, from articles or memorandum, pp. 94, 97, 98 reference in, to articles, p. 97 who liable for misrepresentations in, pp. 38, 39,40 Protectioit : of creditors, provisions for, pp. Ixxxii, 120 of members, provisions for, p. 129, et seq. Provident Society (see " Industrial, &6.', Societies ") : to publish half-yearly statement, p. 123 to keep and supply copies thereof, p. 124 penalty for neglect, p. 124 under Industrial and Provident Societies Act, p. 414, et seq. Provisional Liquidator (see " Liquidator") : may be appointed, pp. 162, 164 how appointed, p. 322 to be bound by rules relating to official liquidator, p. 335 Proxy : member's rights as to voting by, pp. 289, Publication : of name of company, pp. 121, 122 of name of industrial society, pp. 417, 418 of notice of list of creditors in case of in- tended reduction of capital, p. 403 of notice of registration of order reducing capital, p. 387 Public Funds : bargains, as to, p. 56 Purchaser of Shares (see " Contract," " Eegistration," " Shares," " Transfer ") : action against, pp. 67, 68 ; 62 Ad. action by, pp. 68, 69 action for indemnity against, pp. 61, 62, 63,236; 62 ^