(llnnifU ICauJ ^rlynnl SlibratH KD 2074?89l" """"""' """'^ ^*^' m!iullm,JII!&LX"'''' •''« Companies 3 1924 021 861 517 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/cu31924021861517 THE LAW AND PRACTICE THE COMPANIES ACTS, 1862 TO 1890, THE LIFE ASSUEANCE COMPANIES ACTS, 1870 TO 1872 : CONTAINING THE STATUTES AND THE RULES, ORDERS, AND FORMS TO REGULATE PROCEEDINGS. BY H. BURTON BUCKLEY, M.A., OF LINCOLN'S INN, ESQ., ONE OF HER MAJESTT's COUNSEL. SIXTH EDITION. LONDON. : STEVENS AND HAYNES, BELL YAED, TEMPLE BAR. 1891. l.ONDOif : I'RISTED BY WILLIAM CLOWES AND SOHS, LIMITEl*, iTAMFORD STREET AKD CHAItlKG CROSS. CORNELL UI1IV...0IT i JAN 7 1909 LAW ^ PREFACE TO THE SIXTH EDITION. This edition includes three new Acts of Parliament, distinctive in character, ,and each of importance. The first, commercial — to meet a recognized mercantile need, giving power, within limits and subject to control, to alter that which has been unalterable, to enlarge or restrict the objects speci- fied in the memorandum of association. The second, administrative — ^intended to answer the demand for greater economy and more efficient control in winding up, defining afresh the Court which shall have jurisdiction, and providing a new machinery for the appointment of the liquidator and the control of the funds. The third, deterrent — conceived as a terror to the prospectus- maker, and calculated to increase the income of the competent expert who has no scruples. The judicial decisions of the last three years spread themselves over the whole field of the subject of this book. The question of dividend is still involved in difiiculty, although Lee v. Neuchatel Asphalte Company (41 Ch. Div. 1) has given some principles which assist its determination. Upon a point to some extent similar, viz., whether a company may contract to issue paid-up shares against property for which it would not have agreed to give the same sum a 2 IV PREFACE. in cash, more decision is yet wanted. Questions of underwriting, of brokerage upon the issue of shares, and some similar commercial topics, have received some, but not much, elucidation by decision. The fifth edition of this book was exhausted early in 1890. The present edition has awaited, first, the legislation which resulted in the three Acts above referred to ; and, secondly, the issue of the new Rules of Procedure under the Winding-up Act, 1890. The new Rules and Forms are included in the book, but seeing that the former Rules remain in force as regards pending liquidations, it has been found necessary to retain them also. The preparation of the edition has been entirely the work of the Author. For the revision of the sheets in passing through the press and the correction of the Indices he is again indebted to his friend and former pupil, Mr. Robert Younger, of the Chancery Bar. Lincoln's Inn, December, 1890. CONTENTS. THE COMPANIES ACTS. THE COMPANIES ACT, 1862, 25 & 26 ViCT. c. 89. SECTS. 1-5. Preliminary rAC.ES 1-6 PART I. Constitution and Incoei>ok.4.tion op Comp.^nies and Associations ttndek this act. 6-13. Memorandum of Association , 14-16. Articles of Association 17-21. General Provisions 6-18 18,19 19-26 PART II. DiSTBIBUTICN OF CAPITAL AND LIABILITY OF MEMBERS OF COMPANIES AND ASSOCIATIONS UNDER THIS ACT. 22-37. Distribution of Capital 38. Liability of Members . . 26-141 141-158 PAET III. Management and Administration of Companies and Associations under this act. 39-48. ProTisions for Protection of Creditors . . , . . . . , . . 158-180 49-61. Provisions for Protection of Members . . . . . . . . . . 180-190 62-64. Notices 190 65-70. Legal Proceedings .. .' 191-196 71. Alteration of Forms . . . . . . . . . . . . . . . . 196 72, 73. Arbitrations 197 PAET IV. Winding up op Companies and Assooiatioss under this Act. 74-78. Preliminary . , 79-91. Winding-up by the Court . . 92-97. Official Liquidators 98-114. Ordinary Powers of Court . . 115-119. Extraordinary Powers of Court .. 120-128. Enforcement of and Appeal from Orders 197-207 207-264 264^280 280-299 299-308 308-317 VI CONTENTS. 129-146. Voluntary Winding-up of Comijany .. .• 147-152. Winding-up subject to the Supervision of the Court 153-169. Supplemental Provisions 170-173. Power of Courts to make Rules PART \. 174. Registration Office PAGES 317-336 336-342 342-413 413, 414 414-416 PART VI. 175-178. Application of Act to Companies eegisteeed under the Joint Stock Companies Acts 416-418 PART VII. 179-198. Companies authorized to register under this Act . . 418-427 PART VIII. 199-204. Application of Act to Unregistered Companies , . . 427-440 PART IX. 205-212. Repeal of Acts and Temporary Provisions 440-444 FIRST SCHEDULE. TABLE A. Regulations for Management of a Company limited by Shares. PARTS. 1-3. Shares 4-7. Calls on Shares 8-11. Transfers of Shares . . 12-16. Transmission of Shares 17-22. Forfeiture of Shares 23-25. Conversion of Shares into Stock 26-28. Increase in Capital . . 29-34. General Meetings . . 35-43. Proceedings ai General Meetings 44-bl. Votes of Members ,. 52-54. Directors 55, 56. Powers of Directors 57. Disqualification of Directors 58-65. Rotation of Directors 66-71. Proceedings of Directors 72-77. Dividends 78-82. Accounts 83-94. Audit 95-97. Notices Ji'orm of Annual Balance Sheet 445 445-453 453-461 461-463 463-478 478 478, 479 479-481 481-484 484-490 490, 491 492-503 503-506 506-508 508-511 511-519 519, 520 520-522 522 523 TABLE B. — Table of Fees to be paid to the Registrar op Joint Stock Companies by a Company having a Capital divided into Shares . . 524 CONTENTS. Vll TABLE C. — Table of Fees to be paid to the Kegisteae oe Joint Stock Companies by a Company[^not having a Capital divided into Shares FORM D. — Form op Statement referred to in Sect. H of tub Act . . PAGES 524 525 SECOND SCHEDULE. FORM A. — Memouandom of Association of a Company limited by Shares . . 525, 526 FORM B. — Memorandum and Articles of Association of jv Company limiteb BY Guarantee, and not having a Capital divided into Shares . . 526-529 FORM C. — Memorandum and Articles of Association of a Company limited BY Guarantee, and having a Capital divided into Shares . . . . 529, 530 FORM D. — Memorandum and Articles of Association of an unlimited Com- pany having a Capital divided into Shares 530,531 FORM E. — Summary of Capital and Shares as required by Sect. 26 . . 532 FORM F. — Licence to hold Lands (Sect. 21) . . 533 THIRD SCHEDULE. Part 1. — Acts repealed . , Part 2. — Existing companies to have power of suing and being sued Power to form banking partnerships of ten persons . . 533 534 534 SECTS. 1-3. 4^8. 9-20. 21, 22. 23. 24, 25. 26. 27-36. 37, 38. 39. 40-46. 47. THE COMPANIES ACT, 1807, 30 & 31 ViCT. 0. 131. Preliminary Unlimited Liability of Directors Reduction of Capital and Shares Subdivision of Shares . . Associations not for profit Calls upon Shares Transfer of Shares Share Warrants to Bearer Contracts Winding-up Saving . . 635 535-537 537-550 550-552 552 552-565 565, 566 566-569 569-579 579 579, 580 580 The Joint Stock Companies Aeeakgement Act, 1870, 33 &i 34 Vict. c. 104 The Companies Act, 1877, 40 & 41 Vict. c. 26 . . The Companies Act, 1879, 42 & 43 Vict. u. 76 . . The Companies Act, 1880, 43 Vict. c. 19 The Companies (Colonial Registers) Act, 1883, 46 & 47 Vict. c. 30 The Companies Act, 1886, 49 Vict. u. 23. The Preferential Payments in Bankruptcy Act, 1888, 51 & 52 Vict. c. 62 The Companies (Memorandum of Association) Act, 1890, 53 & 54 Vict. c. 62 The Companies (Winding-up) Act, 1890, 53 & 54 Vict. c. 63 The Directors Liability Act, 1890, 53 & 54 Vict. u. 64 The Sale and Purchase of Bank Shares Act, 30 Vict. c. 29 The Life Assurance Companies Act, 1870, 33 & 34 Vict. c. 61 The Life Assurance Companies Act, 1871, 34 & 35 Vict. u. 58 581-584 585-587 588-592 593-599 600-602 603-606 607-609 610-612 613-632 633-638 639-641 642-660 661 Vlll CONTENTS. PAGES The Life Assokanoe Companies Act, 1872, 35 & 36 Vict. c. 41 . . . . 662-667 The Friendly Societies Act, 1875, 38 & 39 Vict. u. 60 668 Board of Teade Rules made undek the Life Assurance Companies Ac r, 1872, s. 1, as to the Deposit to be made by Life Assurance Companies 669-671 GENERAL ORDER AND RULES OF THE HIGH COURT OF CHANCERY' (llTH November, 1862). To regulate the Mode of Pp.oceeding under the Companies Act, 1862. 672-7uO Schedule i. — Fees and Charges to be allowed to Solicitors . . . . . . 701 Schedule ii. — Fees to be collected by Means of Stamps . . . . . . . . 701 Schedule hi. — Forms 702-723 GENERAL ORDER AND RULES OF THE HIGH COURT OF CHANCERY (21ST March, 1868). to regulate the mode of proceeding under the companies act, 1867 724-731 Schedule — Forms 732-736 GENERAL RULES Made Pursuant to s. 26 of the Companies (Winding-up) Act, 1890 .. 737 Schedule — Forms 760 Conventions with Foreign Governments relating to Joint Stock Com- pakies, viz., France, Belgium, Italy, and Germany 801 ( ix ) TABLE OF CASES. A. rAGK Abbot, Ashton Vale Co. v. . . 514 Abercorn's (Marquis of) Case 52, 55 Aberco'rris Co., Levy v. . . 169, 170 Aberdeen Railway Co. v. Blaikie . 504 Abergavenny (Marquis of), Harrison v. 676 Aberystwith Pier Co. v. Cooper. . 159 Abrahams, Bank of South Australia v. 167, 168 Accident Insurance Co. o. Accident Disease and General Insurance Cor- poration ..... 24 Accidental Death Insurance Co. . 142, 298, 438 Accidental and Marine Insurance Cor- poration V. Davis V. Mercati , Mercati's Case , Easch, S. p. . Adam v. Newbigging Adam Eyton, Limited Adams' Case . Adams, Se, Ball, H. p. 1 Lethbridge v. V. Lindsell , London and Co., Se Adamson's Case 118, 148, 154, 157 . 109, 449 . 194 . 303 228, 254, 675 . 103 . 329, 330 58, 68, 80, 474, 475 200, 279, 440 142, 424, 437 61 Provincial Starch . 264, 339 , 399, 408, 450, 504, 555 Adansonia Fibre Co., Miles' Claim 248, 433 Addams v. Ferick . . 205, 452, 461 Addie, Western Bank of Scotland v. 104, 116, 124, 126, 495 Addinell's Case ... 67, 68 Addison's Case : — (5 Ch. 294) . . 39, 41, 73, 133 (20 Eq. 620) . . . .292 Addlestone Linoleum Co. 103, 123, 124, 140, 142, 560, 563 Adjustable Horse Shoe Syndidate . 227 Agra and Masterman's Bank, E, p. : — (6 Ch. 206) . . . .324 (15 W. R. 554) . . 278, 390 , Asiatic Banking Corp., J!/, p. . 360 , Cannan's Claim . . .271 Agra Bank, Barber & Co., Se . . 179 , Worcester, Se . . .74 Agriculturist Cattle Insurance Co. : — (3 D. F. & J. 194) . . .268 (10 Ch. 1) . . . 297, 438 , Hughes, JE.p. . . . 370 Agriculturist Cattle Insurance Co.'s Cases . . 14, 465, 466 et seq., 494 Aizlewood, Sheffield Building Society v. 167, 498 PAGE Alabaster's Case . 64, 65, 71, 72, 122 Albert Average Assurance Ass. 267, 268, 434 Albert Life Assurance Co. : — ■ (18 W. R. 91) ... 439 (6 Ch. 381) 249, 278, 386, 387, 581, 583 (16 Sol. J. 917) . . . 379 , Lancaster's Case 353, 354, 355, 370 379, 666, 667 , Partridge ». . . . 105, 495 Albion Bank .... 247, 249 , British and American Telegraph Co. V 494 V. Cooper .... 360 Albion Building Society . . . 176 Albion Co. v. Martin . . . 505 ■ Albion Life Assurance Society . . 143 •, Brown's Case " . . 39, 133 , Sanders' Case ... 39 Albion Steel Co. . . 242, 366, 367 Alexander v. Simpson . . . 186 V. Sizcr 178 Alexander's Case : — (9 W. R. 410) (15 Sol. J. 788) Alexandra Hall Co. Alexandra Hotel Co., Bourke v. Alexandra Palace Co. : — (16 Ch. D. 58) (21 Ch. D. 149) (23 Ch. D. 297) . Alexandra Printing Ink Co. Alexandria Water Co. e. Musgrave Alfreton District, &c., Society . 30 77, 80, 206 . 324 . 570 . 685 411, 516 292, 499 . 328 . 159 . 431 Alison's Case . . . ' . 103, 124 Alison, Bank of Hindustan v. . .16 Allen's Case. Se Medical, Invalid, &c.. Society 378 Allen V. Graves . . . 136, 139 , Massey ». . . 89, 258, 303 Alletson v. Chichester ... 74 Alliance Society . . 175, 176, 328 AUin's Case . . . .32, 37, 38 Alma Spinning Co., Bottomley's Case 446, 476, 509 Almada and Tirito Co. 8, 140, 553, 560, 562 Alsbury, Sugden v. . . . . 512 Alston, Mozley v. . . . . . 486 Ambergate Railway Co. v. Mitchell . 446 Ambrose Lake Co., & p. Taylor 401, 408, 577, 578 American Pastoral Co. . . . 544 Amery, Harris ». . . . .4 Anchor Assurance Co. . 371, 375, 376 , Knox's Case . . 378, 380 TABLE OF CASES. Anderson's Case : — (3 Eq. 337) . (8 Eq. 509) . (7 Ch. Div. 75) (17 Ch. D. 373) Anderson, Kead v. . J Smith «, . . . Anderson & Co., Masbach v. Andres.?' Case Andrew, He ; — , Kippon, E. p. (4 Ch. 639) (1 Ch. Div. 358) . Andrew's Case ; — ■ (3 Ch. 161) . (16 Sol. J. 609) Angas' Case . Angas, Kess r. Angerstein, E. p. Anglesea Colliery Co. . 272, 357 42, 460 15, 16, 48, 181, 408, 558, 559, 562 . 108, 140 . 640 . 2, 3, 4, 497 234, 246 555, 558 476 220 146, 147, 282 . 377 . 78 . 78 . 274 83, 143, 198, 225, 293, 325 Anglo-African Steamship Co. . 309 698 Anglo-American Leather Cloth Co. . 169 Anglo-American Telegraph Co., Simm v. 93, 94 Anglo- Australian Life Assurance Co. . 215 Anglo-Australian Co.'s Case . . 349 Anglo-Australian Co., Woodhams v. . 40 Anglo-Californiau Gold Mining Co. . 311 V. Lewis .... 185 , Williamson, E. p. . . . 505 Anglo-Danish Steam Navigation Co. . 679 Anglo-Danubian, &c., Co. v. Eogerson 196 Anglo-Danubian Steam Co. . . 171 Anglo-Egyptian Navigation Co. 217, 249 Anglo-French Society, E. p. Pelly 400, 401, 408, 411 Anglo-Greek Steam Co. 215, 216, 217, 248 Anglo-Indian Co., Grey's Case . 133, 281 Anglo-Italian Bank and De Kosaz, Be . 396 , De Eosaz v. . . . 395, 396 , Moor V. 168, 169, 224, 250, 366 Anglo-Maltese Dock Co. . . 296, 297 Anglo-Me.xican Mint Co. . .' . 215 Anglo-Moravian Co., E. p. Watkin 275, 280, 296, 332 Anglo-Eomano Water Co., Wright's Case . . . 326, 341, 387, 683 Anglo- Virginian Land Co. . . 226 Angus, Commissioners of ^Inland Re- venue 17. .... . 564 Anon, Se (15 L. T. 170) . . .276 Ansell, Boston Deep Sea Fishing Co. v. 504 Appletreewick Lead Mining Co. . 559 Appleyard, E.p. . . . 123, 563 Arduin, English and Foreign Credit Co. t! 68 Argus Life Assurance Co. . . 647 Arkwright r. Newbold 107, 108, 109, 125, 129, 573, 579 Armstrong v. Burnet Army and Navy Hotel Co, ' , Eos.') V, Arnal, E. p. . Arnaud, Eeg. v. Arnison r. Smitli Arnot's Case 461 . 674, 694 165, 170, 171 . 241 8 104, 124, 126, 127, 128, 129 130 . 70, 346, 553, 559*, 563 500 120 1 514 70 26 360 PAGE Art Engraving Company . . ■ 367 Arthur Average Association, E.p. Har- grove & Co. (10 Ch. 542) 2, 4, 5, 289, 434 (3 Ch. D. 522) . . 5, 289 Artistic Colour Printing Co. . 234, 23o , E. p. Kourdrinier . 240, 396, 460 Ashbury,JB.p. . . • 323,399 Ashbury Railway Carriage Co., Riche V. 13, 14, 15, 164, 165, 181, 466, 469, 472, 494, 541 Ashbury v. Watson . . 16, 182, 458, 472 Ashford, Landowners Co. v. 172, 192, 306 Ashhurst v. Mason . . • • Ashley's Case .... Ashton, London and Provincial Pro- vident Society v. ... Ashton Vale Co. V. Abbot Ashworth v. Bristol, &c., Railway Co. V. Munn .... Asiatic Banking Corporation : — , Agra and Masterman's Bank, Be , CoUum, E. p. . 69, 457, 475 Askew's Case 102, 103, 108, 112, 124, 573 Aslatt V. Farquharson . . . 360 Aspinall's Case . . ■ .409 Association of Land Financiers (10 Ch. D. 269) 267 (16 Ch. D. 373) . . 350, 367 Athenieum Life Assurance Society . 165 V. Pooley . . . 359, 362 Atkins and Co. v. Wardle . . 161 Attenborough's Case . . 171, 272 Attorney-General v. Great Eastern Railway ..... 13 I). Ray 110 V. Wilson . . . 128, 501 Attree v. Howe .... 172 Atw'ool V. Merryweather . . 480, 486 Audain, E. p.. Be Licensed Victuallers Association . . 76, 560, 562 Audley Hall Cotton Spinning Co. 251, 296 Auld V. Glasgow Society . Austin's Case (2 Eq. 435) (24 L. T. 932) . 44: Austin, Stewart v. . Australian Co. (20 Eq. 325) Australian Mortgage Land and Finance Co. V. Australian and New Zealand Mortgage Co. .... Australian Steamship Co. v. Fleming . Ayers, Levi ...... Aylesbury Railway Co. v. Mount 451, 459 V. Thompson . . . 451, 459 Aylmer, Morrice v. . . , . 478 Ayscough, Deposit Life Assurance Co. v. 116 177 55, 104 , 475, 476 124, 128 257 195 208 B. Bache's Case ..... 352 Baddeley v. Earl Granville . . 574 , Jennings V. , . . . 215 Badman's and Bosanquet's Cases . 57 Baglan Hall Colliery Co. 47, 48, 49, 525, 553 Bagnall v. Carlton 404, 409,- 563, 572, 575, 577, 578 Bagnall & Co., E. p. Dick . 106, 574 TABLE OP CASES. XI PAGE Bagshaw, E. p. . . . . 394 Bahia and San Francisco Railway Co. 93, 94- Bailey and Leetham's Case . 244, 686 Bailey's Case (W. N. 1869, 196) 60, 70, 456 Bailey v. Birkenhead Railway Co. . 447 Baily, E.p 76 Bainbridge, Reeves v. . . 56, 87 ■ V. Smith . . .06, 87, 510 Baird's Case 461 Baker's Case (7 Ch. 115) . . .44 , Carter, H. p 303 Baker, Keynsham Co. v. . .159 Balfour's Case .... 377 Balkis Co., Bishop v. . . 95, 454 Ball, B. p. (20 Ch. Div. 670) . . 485 , Se Adams . . 200, 279, 440 , Bateman v. . . . 278, 321 Bamber, Henderson v. . . . 314 Banagher Distillery Co., Walker v. 234, 246 Bangor Slate Co. . 183, 293, 294, 295 Bank of Australasia, Hendei-son ». (40 Ch. D. 170) . . . .493 (W. N. 1890, 98) . . 186 Bank of England, E. p., Se Barned's Banking Co 312 ■^ , Staple of England v. . 21, 483 , Vagliano Bros. v. . , . 21 Bank of Gibraltar and Malta 327, 333, 336 403 Bank of Hindustan, &c. : — , Higgs' Case . . . 393, 394 , Los' Case . . ,100, 102, 393 , Martin's Case . . 102, 393 ».. Alison , . . .16 V. Eastern Financial Association 386 V. Premchand . . . 255 ■ , Imperial Bank of China, &c., v. : — ■ (1 Ch. 437) . . .195 , Imperial Bank of China, &c., v. (6 Eq. 91) . . 185, 392, 395, 466 , Kintrea, E. p. 28, 33, 98, 100, 102, 103, 139, 279, 281, 700 , Levick, E.p 243 , Smith, E. p. . 243, 244, 297, 686 Bank of Ireland v. Trustees of Evans' Charities . . . . .21 Bank of London v. Tyrrell . 504, 577 Bank of London, &c., Association 4'J9, 430 . , Lancaster's Case . . 376, 379 Bank of Montreal v. Cameron . . 679 ». Sweeny . . , .86 Bank of South Australia v. Abrahams 167, 168 Bank of Wales, Croskey v. . 130, 450 Bannatyne v. Direct Spanish Telegraph Co . 538, 543, 544 Banner, Helbert v. 145, 146, 147, 148, 388 : , V. Johnson . . . 312, 364 Bansha Mills Co 165 Banting ». Pugh .... 512 Barangah Oil Co., Arnot's Case 70, 346, 553, 559, 563 Barber, Knight v. . . . . 458 , Willmott V 140 Barber & Co., Se, E. p. Agra Bank . 179 Barber's Case .... 63 Bardwell v. Sheffield Waterworks Co. 518 PAGE Bargnte ». Shortridge . . . 456 Barge's Case .... 83, 346 Baring v. Dix .... 215 . , Traill V 108 Barned's Banking Co. ; — (14 W. R. 722) . . 334, 339 (36 L. J. (Ch.) 215) 146, 289, 290 , Bank of England, ,B. p. . . 312 , Contract Corporation, E. p. : — (2 Ch. 350) . . .278 (3 Ch. 105) 7 80, 81, 345, 455, 456, 509 , Forwood's Claim . . 364, 684 , Joint Stock Discount Co., E. p. 364 ■ , Kellock's Case 272, 363, 364, 365, 369, 684 , Peel's Case . . 21, 49, 111, 113 , Thornton, E.p. . . 299, 343 Barnes' Case . . . 331, 372, 381 Barnett, E. p. (1 De G. & Sm. 744) . 252 Barnett's Case (18 Eq. 507) . 71, 80 (19 Eq. 449) . . . .287 Barnett, Hoares &_^Co. v. South London Tramways .... 105, 495 Barnett, Cadiz Waterworks Co. v. , 211 , Perry v 640 , Weir V. . . . 127, 501 Barrett's Case (3 D. J. & S. 30) 67, 68 (4 D. J. & S. 416) 61, 75, 79, 87, 91 (4 D. J. & S. 756) . . .357 Barrow Steel Co. . 487, 544, 545, 549 Barrow's Case (3 Ch. 784) . . 199 (14 Ch. Div. 432) . 557, 558, 563 Barrow-in-Furness Co. . . 554, 556 Barry's Representatives' Case . . 282 Barry, E.p. . . . . .74 , Chubwa Tea Co. v. . . . 448 Barry Railway Co. . . . 283, 575 Bartholomew, East Gloucestershire Railway Co. v. . . . 26, 70, 456 Bartiett's Case ... 55, 60 Barton, Gibson v. . 84, 85, 180, 193, 403 .^^ V. London & North Western Rail- way Co. . , ■ . 82, 86, 462, 463 V. North Staffs. Railway Co. 82, 94, 456, 463 Water Co 432 Barton's Case .... 464 Barwick v. English Joint Stock Bank . 93 105, 495 Basingstoke Canal, Se Proprietors of . 432 Bastow & Co., Se (4 Eq. 681) . . 236 Bastow, Se (37 L. J. (Ch.) 51) . . 312 Bateman, E.p. . . 257, 258, 303 V. Mid-Wales Railway Co. . 179 V. Service . . . 4, 8, 219 V. Ball . . . 278, 321 Bateman's Case (15 Sol. J. 491) . 306 Bate, E. p., Se Progress Assurance Co. 357 V. Eley 696 . (8 Ch.biv. 334) 45, 80, 143, 144, 145, 165, 386, 473 (11 Ch. D. 386 ; 13 Ch. Div. 693) 143, 144 Batten v. Wedgwood Coal Co. . . 296 Battle's Case . . . . 29, 31 Baxter, Kelner v. . . . . 525 xn TABLE OP CASES. PAGE Bayley, Madrid Bank v. . . 306, 324 BayVia, JE. p. . . 223,248,251,254 Beadon, Sjrkes v. . . • .3 Beall, Quartz Hill Co. v. . . . 676 Bear v. Bromley . . . . 2, 3 Beattie v. Lord Ebury . . 493, 501 Beatty.North WestTransportationCo.j!. 21, 484, 485 Beaujolais Wine Co. . 319, 327, 336 Beck's Case . 45, 68, 70, 72, 122, 135 Co. 504 130 570 . 78 . 196 468 et seg. 446, 509 . 226 105, 127, 501 . 80 4, 356, 666 39, 86 . 106 31 46,49 . 576 . 185 Beck V. Kantorwicz Beeching v, Lloyd Beer v. London and Paris Hotel Belcher's Case Belfast Railway Co. ii. Strange Belhaven's (Lord) Case Bell, Kirk v. . , Pa.\ton, V, , Weir V. Bell's Case (22 Beav. 35) (9 Eq. 706) . 353, 3, (4 App. Cas. 547) Bellairs t). Tucker . Benham's Case Bennet's Case Bennett v. Lord Bury , Dean v. Bennett's Case (5 D. M. & G. 284) 33, 37, 41, 469, 496 Benson v. Heathorn .... 504 , Sliaw V. . . . 2,. 4, 5 Bentham Mills Co. . . . 459, 460 Bentinck's Case . . 28, 38, 131, 451 (W. H.) Case . . 42, 132, 282 Bentinck v. Fenn . 107, 225, 400, 401, 577, 578 Bentley, North American Colonial As- sociation v. . . . 451, 459 Bentley's Case . . . 274, 556 Berlin Great Market and Abattoirs Co. 209 Bermingham v. Sheridan ... 38 Bernard's Case . . . .494 Bes\ey,Kp 311,313 Bessemer Steel Co. . . . 582, 584 Best's Case 77 Bettws Colliery Co., Boyle v. . . 266 Beville's (Baron de) Case ... 49 Bibby, Western and Brazilian Tele- graph Co. u. . . . . 258 Biederman v. Stone .... 321 Bigg's Case ..... 474 Bigham, Murton v. , . . 145, 147 Binney v. Ince Hall Coal Co. . 74, 87 Birch V. Cropper . . 294, 323, 512 Birch Torr Co., .B. p. Lawton . 216,224 Bird's Case .... 60, 75 Bird V. Bird's Sewage Co . . . 393 , Lydney Co. v. (23 Ch. D. 358) . 195 (31 Ch. D. 328 ; 33 Ch. Div. 85) 563, 575, 576, 578 Birkbeck Life Ass. Co., Barry's Case Birkenhead Railway Co., Bailey v. Birmingham Banking Co. , London and Mediterranean Bank, He ;_i24, , Patent File Co., Be Birmingham Brewery Co. Birmingham Concert Halls 282 447 347 349 165, 398 . 681 679 Birmingham and Lich6eld Junction Railway Co. (18 Ch. D. 55) . . 284 (28 Ch. D. 652) Biron's Case , Bishop V. Balkis Co. Bishop's Case Black & Co.'s Case 283, 284 53 95, 454 29, 79, 456 06, 116, 271, 286, 287, 323, 327, 449, 450, 564 Black, Brown v. . . 136, 137, 138 — ^, Coltness Iron Co. v. . • 514 , Homersham ». . . • 458 Blackburn Benefit Building Society . 175, 176, 177 V. Brooks (22 Ch. Div. 61 ; 9 App. Cas. 857) 164, 172, 173, 174, 175 (29 Ch. DiT. 902) . 166, 172, 173, 174, 405, 472 E. P. Graham . . 355, 357 Blackburn's Case Blackstone, E. p. . Blaikie, Aberdeen Railway Blaina Co., Edmonds v. Blake's Case 69, 80, Blakeley's Case Blakely v. Dent Blakely Ordinance Co. :- , Bailey's Case , Coates' Case . , Mercantile Bank, E. , Metropolitan and Bank's Claim 314 . 114 Co. r. . 504 . 169, 170 104, 108, 109, 121 461 257 . 60, 70, 456 88 p. . . 179 Provincial 364, 369 -, New Zealand Banking Corpora- 360, 361 168, 169 . 240. . 424 373, 375 . 167 58 . 302 . 451 96, 518 . 670 379, 381 . 504 . 437 tion, E. p. Blaker v. Herts Waterworks Co. Bleckley, Se (35 Beav. 449) . Bleckley's Case (16 L. T. 784) . Blood, E.p Bloomer v. Union Coal Co. Bloxam's Case , Financial Insurance Co., He Bloxam v. Metropolitan Cab Co. o. Metropolitan Railway Co. Blue Ribbon Co. . Blundell's Case . . 376, Blunt, Iron Ship Coating Co. t\ Blyth & Co.'s Case (13 Eq. 529) Blyth's Case (4 Ch. Div. 140) 553, 558, 564 Bodmin United Mines Co. 314, 353, 464, 466 Bogg, Mason ...... 365 Bolognesi's Case . . . 324, 345 Bolton Benefit Loan Society. Coop. v. Booth 435 Bolton Pnrtnere v. Lambert . . 57 Bonelli's Telegraph Co., Cook's Claim . 297 Booker, E.p., West of England Bank, £c 493 Boore, New Brunswick and Canada Co. B 50 Booth, Coop V. . . . . 435 Boro' of Hackney Newspaper Co. . 163 Bos, Princess of Reuss ti. 8, 22, 214, 219, 457 Bosanquet, Shortridge v. , , . 456 Boss, ^.p., i?e Whalley . . . 345 Boston Deep Sea Fishing Co. v. Ansell 504 Bottomley's Case, Alma Spinning Co. 446, 476, 509 Bouch, Sproule r. . . . . 512 Bouchard, E. p. . . . . 345 Bough, Miles v. . . 192, 449 TABLE OP CASES. XUl Boultoii, S. p. I'AGK . 74 Bourke v. Alexandra Hotel Co. . 570 Bourne's Case . 359 Bowden v. Russell . . 675 Bower, Cargill v. . 127, 501 ' V. Foreign Gas Co- . 167, 168 Bowes, Clements v. . 130, 431 : V. The Hope, &c., Soc. 209, 312,429,430 Bowman, Radge v. . . 344 Bowring's Case . 379 Bowring u. Shepherd 135, 136 Boyle V. Bettws Colliery Co. . 266 Hillw. . . 411 Boynton v. Boynton . 275 Boythorpe Colliery Co., James v . 172 Bradford Banking Co. v. Briggs 87, 461 Bradford Navigation Co. :- (5 Ch. 600) . 247, 248, 298, 432 (10 Eq. 331) . . 248, 298, 432 Bradford Tramways Co. . . 218, 284 Bradshaw, JS. p., Colonial Trusts Cor- poration . . . 167, 168, 319 Braginton's Case .... 61 Brampton and Longtown Railway Co. : — (10 Eq. 613) . . . .283 (11 Eq. 428) . . . .696 Brandley Mining Co., Jeukinson v. . 169, 170, 171 Branwhite, JS. p., West of England Bank, Ss . . . . 286, 287 Brasnett's Case .... 287 Breckenridge's Case . . , 281 Breech-loading Armoury Co. . . 304 Brentford Tramway Co. . . . 432 Brett's Case (6 Ch. 800 ; 8 Ch. 800) 149-157, 311 , Se Colombia Co. (25 Ch. Dir. 283) : See Hewitt's Case, Brick and Stone Co. Bridge, Seymour v. . , Wills V. Bridger's Case Bridger's and Neill's Cases .Bridges, Hill v. Bridgwater Engineering Co. 187, 480 . 640 . 458 01, 66 . 144 357, 367, 685 239, 241, 367 Bridport Old Brewerv Co. 185, 193, 318, 338 Briggs' Case (19 L. t. 758) . 109, 121 Briggs, E. p. (1 Eq. 483) . 59, 107, 114 , Bradford Banking Co. v. . 87, 461 , Oriental Inland Steam Co. v. . 68 Brighton Arcade Co. v. Dowling . 286 325, 687 Brighton Brewery Co., Hunt's Case . 403, 407, 498, 504 Brighton Club, &c., Co. . . 212, 219 Brighton Hotel Co. 209, 210, 247, 261, 263 Bristol Athengeum .... 435 Bristol Joint Stock Bank . . 216, 590 Bristol Marine Insurance Co., Williams v. 258 Bristol and North Somerset Railway Co. 584 Bristol, &c.. Railway Co., Ashworth v, 70 Bristol Victoria Pottery Co. . . 260 Bristowe, Coles v. 135, 136, 137, 138, 139 , Grissell v. Britannia Building Society Britannia Mills British Alliance Co. : — (W. N. 1877, 261) . 135, 137, 138 280, 439 . 549 211, 650 British Alliance Co.: — (9 Ch. D. 635) . 220, 229, 650 British and American Telegraph Co. : — V. Albion Bank . . . 494 V. Colson .... 62 British Envelope Co. . . 328, 694 British l^'armers Co., NicoUs' Case. Sue Burkinshaw v, NicoUs. British Flax Co 484 British and Foreign Bank, Oppenheimer v. 356 British and Foreign Gas, &c., Co. 158, 220,253 British Guardian Co. (14 Ch. D. 335) 400, 402, 403 (W. N. 1880, 63) . . . 403 British Imperial Co. (5 Ch. D. 749) . 309, 403, 698 (W. N. 1875, 184) . . .650 British India Co. v. Commissioners of Inland Revenue .... 169 British Land Co. of America . 545, 549 British Mutual Banking Co. v. Charn. wood Forest Railway Co. 93, 105, 494 British Mutual Life Assurance Society, Southall V. . . . 393, 420, 505 British Nation Ass. Soc. (14 Eq. 492) 248, 268, 329, 336 British Nation Association (8 Ch. Div. 679) 81, 89, 436 British Nation Indemnity Claims . 298 British Oil and Cannel Co. . 216, 261 British Provident Life, &c., Co., Anglo- Australian Co.'s Case . . . 349 British Provident, &c., Co., Teete's Case 373 British Seamless Paper Box Co. 408, 499, 577 British Sugar Refining Co. 102, 448, 481 British Wagon Co. v. Lea . . . 278 British Water Gas Syndicate v. Notts Water Ga,s Co 319 Bri' on Life Assurance . . . 647 Briton Medical Association (32 Ch. D. 503) 234 (39 Ch. D. 61) . . 85, 141 K p. Littleton . . .184 Broad Street Dwellings Co. . . 565 Brocklebank, New London and Bra- zilian Bank v. . . . 87, 461 Brocklehurst v. Railway Printing Co. . 170 Brodie, Grand Trunk Railway Co. v. 273, 275 Bromley, Bear v. . . . . 2, 3 Brook, E.p 242 Brooke and Co 228 Brookes, Ladywell Mining Co. v. 575, 578 Brooks, Blackburn Building Society v. (22 Ch. Div. 61; 9 App. Cas. 857) 164, 172, 173, 174, 175 ■ (2) (29 Ch. Div. 902) 166, 172, 173, 174, 405, 472 Brooks, Colquhoun ti. . . . 158 Brotherhood's Case . . 466, 468 et seq. Broughton, Jennings v. . 104, 108, 109 Brown's Case (9 Ch. 102). 51, 53, 54, 55 (18 Ch. D. 639) . . 39, 133 (Michael) Case (Eur. Arb). 155, 201, 203, 346, 463 (Thomas) Case (Eur. Arb.) 281, 282 Brown and Co. v. Brown . . . 515 V. Keeble . . . .211 XIV TABLE OF CASES. Brown and Tylden'a Case (Eur. Arb.) 345 Brown, E. p. (19 Beav. 97) 27, 456, 502 , Re West of England Bank 288, 367 V. Black . . 138, 137, 138 V. Dale 294 , Dixon ...... 272 , Jeavons, Ee (9 Ch. 304) . . 313 Joint Stock Discount Co. v. 81, 496 497, 500, 501, 525 Ornamental Pyrographic Co. v. . 447 Brown, Bayley and Dixon, E.p. Koberts 242, 256 Brown, Jnnson and Co., Ortigosa v. . 454 Browne v. La Trinidad 213, 508, 509 525, 559 . 312 . 127 . 176 . 25 . 305 Browne's Case (20 Eq. 639) Brownlie ». Campbell V. Russell Brownrigg, Day v. . Briinner, Re . , Brunswick Building Society, Chapleo v. 166, 172, 173, .501 Brunton's Case . , . .362 Brynmawr Coal Co. . . . 186 Bryon b. Metropolitan Saloon Omnibus Co 168, 182 Buchan's Case 77, 86, 204, 206, 462 Buchanan, E. p. . . . . 347 , Lumsden v. . . . .86 Buck, Fenwick v 136 V. Robson . . 19, 198, 446 Buckridge's Case . . . .281 Budd's Case 30 Budden's Case (Alb. Arb.) 374, 376, 378, 379, 382 Budden, E. p.. West of England Bank 202, 203, 321, 346 Buenos Ayres Railway Co. . . 564 Bugg, Isaac, ^. p. . . . 30,87,91 Building Societies Trusts 228, 229, 674, 675 Bulkeley u. Schutz . . . 4, 8, 219 Buller, Exeter and Crediton Railway Co. » 487 Bulmer's Case .... 77 Bunn's Case (2 D. F. & J. 275) . 71, 87, 449 Bunn, E. p. (3 Jur. (N.S.) 1013) . 304 Burgess' Case 115, 116, 118, 120, 123, 124, 143 Burkinshaw v. Nicolls 42, 70, 83 93, 311, 553, 557, 558, 561 Burlinson's Case . 78 Burn, Munns V. . . . . 312 Burnet, Armstrong v. . 461 Burns' Case .... . 381 Burton, E. p. . 66 Bury (Lord), Bennett v. , . 576 , Wilson V, . . . . 495 Bush's Case (6 Ch. 246) . 27, 29 37, 275, 314, 456, 566 (9 Ch. 554) . . 70, 93, 558, 564 Bush, Murray t). . 27,29,193, 314, 456 Bushell, Re . . 397 Butler's Case .... . 379 Butler I). Cumpston . 79,88 , Sheriff e. 79,80 Bwlch-y-I'lwm Co. . . 217 Bvrno v. Van Tienhoven . . 63 c. PAGE Cadiz Waterworks Co. v. Barnett . 2H Cady, Colonial Bank v. . . 363, 455 Caerphilly Colliery Co. . . 335, 337 Caillaud's Tanning Co. ». Caillaud . 195 Cakcmore Causeway Co. . . 679 Calcutta Jute Co. v. Nicholson . . 159 . 273 287, 288 . 304 389, 391 . 392 . 279 . 364 376). 304 . 390 Caldwell ti. Ernest . Calisher's Case (5 Eq. 214) Calisher, E. p. (15 W. R. 1007) Callao Bis Co. II. Ronaldson . Calthrop, Re . Cama, E. p. . Cambrian Mining Co. (20 Ch. D, ■■ (48 L. T. 114) , E.p. Fell (\V. N. 1881, 125) 224, 256 Cambrian Steam Packet Co. 274, 313, 356, 685 Peat Co., E. p. Mott and Turner. 482 Railway Co., E. p. Coleman . 247 Cameron, Bank of Montreal v. . 679 Cameron Coalbrook Co. . . . 305 , Hunt's Case .... 36 CammcU Co., Munster v. . . . 507 Campbell's Case : — (9 Ch. 1) . 14, 17, 73, 393, 465 (4 Ch. D. 470) 171, 274, 353, 367 Campbell, Brownlie r. , . . 127 V. Compagnie G^nerale . 256, 266 , Gordon v. . . . .86 V. Maund .... 484 Canada Land Co. .... 548 Cann u. Wilson . . . 126 Cannan's Claim .... 271 Cannan, Morris v. . . . . 453 Cannock and Rngeley Colliery Co., E. p. Harrison Cannon, E. p. V. Trask Canwell, E. p. Cape Breton Co. •- (19 Ch. D. 7 240, 396, 460 142, 491 481, 484, 487, 498 . 199 ■) 199, 203, 207, 314 (29 Ch. Dir. 795) . . .578 See Bentinck v. Fenn. V. Fenn . . . 244, 296, 487 Capel V. Sims Co. . . . 127, 573 Capital and Counties Bank, London and County Bank v. . . . .25 Capital Fire Insurance Association: — (21 Ch. D. 209) . 213, 214 (24 Ch. Div. 408) 96, 296, 297 Clipper's Case : — (19 L. J. (Ch.) 394) . . 68 (3 Ch. 458) . 42, 43 Capper, E.p. . 231 Capper, Niger Merchants Co. r 211 Cardiff Coal Co., Hill, E. p. . 505 , Norton, E p. . . 84 V. Norton . . 84, 219, 285, 289 Cardiff Savings Bank 436 Carew's Estate Act . . 502 Carey's Claim . 362 Cargill V. Bower . 127, 501 Carling's Case 51, 56, 70, 409,410, 558, 563 Carlisle, Hattersley t). ... 61 Carlton, Bagnall v. 404, 409, 563, 572, 575, 577, 578 TABLE OF CASES. XV PAGE Carmarthen Coal Co. . . 224, 250 Carmarthen Railway Co., Fountaine v. 165, 503 Carmichael's Case .... 76 Carnatic Railway Co., Reg. ». . .79 Carnelley, E. p. Carnforth Co., JE, p. Carpmael's Case Carr, E. p. , CaiT's Case . Carr v. Griffith 234, 239, 241, 396 . 218 248, 381, 383 . 21)0 . 331 3 Carralli and Haggard's Claim . . 203 Carnage Co-operative Association 407, 408, 409, 500 Carriok's Case . 1 17, 175, 176, 343 Carritt v. Real Advance Co. . . 94 Carta Para Co 226 Carter's Case 403 Carter, E. p. (1 D. M. & G. 212) . 313 (19 W. R. 55) ... 303 V. Dimmocfc .... 313 Cartmell's Case 23, 40, 42, 77, 502, 503, 510 Carver, E. p. . . . . 303 CasharCo 140 Castellan v. Hobson . . 136, 138 Castello's Case ... 43, 320 Castle Steel Co., Mowatt v. 172, 363, 564 Cathie's Case ..... 84 Catholic Publishing Co. . 211, 212, 220 Cawley & Co. . 27, 32, 452, 459, 510 Cefn Cilcen Mining Co. . . .172 Central Darjeeling Tea Co. 385, 388, 505 Central Railway Co. of Venezulea v, Kisch 12, 104, 106, 107, 108, 111, 113, 115 , Scholey v 114 Cercle Restaurant Co. v. Lavery . 211 Cesina Co. v. Nicholson . . . 159 Chadwick, Smith v. 108, 109, 110, 125, 126, 127 Chalk, Webb & Co. v. Tennent . . 689 Challis' Case (6 Ch. 266) . . 72, 79, 394 Challis, E. p. (16 W. R. 451) . 87 Chamberlain's Case .... 84 Chambers, Gaskell v. . . . 158 Chapel House Colliery Co. 209, 211, 261, 263 Chapleo v. Brunswick Building Society 166, 172, 173, 501 Chapman's Case ; — (1 Eq. 346) . . 349, 350, 680 (2 Eq. 567) .... 52 Chapman and Barker's Case . 86, 87, 88 Chapman, Imp. Mercantile Credit Ass. o. 497 V. Shepherd . . . .344 Chappell's Case . . .29, 32, 38 Charitable Corp. v. Sutton 492, 496, 501 Charlemont, Jones v. . . . 431 Charles, Okell v 178 Charlton V. Hay] . . . 571, 574 Charnwood Forest Railway Co., British Mutual Banking Co. v. . 93, 105, 494 Chartered Bank, Robinson v. . . 36 Chatham Co-operative Industr. Soc. . 433 Chatteris, E. p. . . . 522 Chatterton v. Watney . . .223 Cheetham's Case . . . .43 Cheltenham and Swansea Railway Car- riage Co 675, 679 Chepstow Bobbin Co. . . . 338 rAGE Cherry v. Colonial Bank of Australasia 501 Cheshire Patent Salt Co. . . . 225 Chesterfield and Midland Colliery Co. 77 Chevell, Wentworth v. . . . 205 Chichester, AUetson v. . . .74 Chick, King v 369 Childers v. Childers ... 56 Chilington Iron Co. . . . 484 China Steamship Co : — , Dawes' Case . 199, 451, 452, 459 , Mackenzie, E. p. . . . 199 Chinery, E. p 223 Chinnock's Case .... 30 Chippendale, E. p. . 168, 174, 496, 498 Chorley, E. p 362 Christie v. Northern Counties Society 177 City Rice Mills, Thorn «. 213 , . 213 Chubwa Tea Co. v. Barry . . 448 Chynoweth's Case ... 30, 438 Cifoden Benefit Building Society . 246 City Bank, Re Gen. Estates Co. . 179, 180, 360, 361 City and County Bank 208, 263, 264, 580, 673, 674, 694 , Stone !). 115, 116, 123, 185, 272, 318, 321, 325, 327, 446 City and County Investment Co. 275, 313, 390, 392, 393, 394 City Discount Co. v. Lloyd . . 201 City Glass Co 249 City of London and Colonial Financial Association . . 435, 677, 678 City of London Club . . .234 City of London Marine Corporation, Skinner v 140,'566 City Rice Mills, Thorn v. . . . 213 City Terminus Hotel Co., South Eastern Railway Co.'s Claim Clack's' Case . Clark, E. p. (7 Eq. 550) 74 41 83, 243, 286, 351, 449, 450 . 454, 455 388, 700 . 313 , France v. Clarke, E. p. (14 W. R. 856) (2 De G. & J. 245) . Clarke's Case :— (1 K. & J. 22) . . 252 (16 Sol. J. 554) . 155 (16 Sol. J. 752) . . 377, 378 (27 L. T. 843) . . 476 (8 Ch. Div. 635) . . 564 Clarke and Helden's Case . 407 Clarke v. Dickson . . . 116 V. Hart .... 464, 465 London Clarkson, Dewhurst ». Clayton Mills Co. . Clayton's Case Cleland's Case Clemence, E. p. Clement's Case Founders Association v. 39, 566 22 . 312 . 174 71, 282, 557 . 240 J. (Ch.) 295) 300, • 302 (37 L. (13 Eq. 179 n.) Clements v. Bowes . Clench, Peppercorne v. Clermont v. Tasburgh Cleve V. Financial Corp. Cleveland Iron Co. . 186, 318, . 302 130, 431 138, 139 . 103 321, 336 . 121 XVI TABLE OF CASES. I'AGK Clifton, Fox V. : . . . 447 Clinch V. Financial Corporation 318, 392, 393 Clongh, Harvey v. . . . 145, 425 Coal Consumers Association 239, 241, 367 Coates' Case :— (17 Eq. 169) . 48, 283, 554, 555 (35 L. T. 617) ... 88 Cobra Copper Mining Co., Weston's 43, 44 . 140 41, 384 . 293 Cockburn v. Edwards Cocker's Case Coed Madog Slate Co. Coghlan's Case 376, 378, .379, 381, 382, 677 Colborne and Strawbridge, E. p. 319, 320 360, 361, 362, 370 Cole's Executors' Case . . . 205 Coleman's Case (1 D. J. & S. 495) 63, 71, 80 Coleman, E.p. (3 De G. & Sra. 139) . 247 , Imperial Mercantile Credit Asso- ciation V. . . . 129, 504, 505 Coles V. Bristowe 135, 136, 137, 138, 139 CoUen V. Wright . . . .501 Collie, iJe 255 Collie's Claim . . .509 CoUison, E.p 65 CoUum, U.p. . . 69, 457, 475 Coleman, Reynolds v. . . ,39 Colombia Chemical Factory Manure and Phosphate Works. Hewitt's Case 51, 55 Colonial Bank o. Cady . , 363, 455 V. Hepworth . . . 363, 455 V. Whinney . . 74, 454, 455 , Williams v. . . . 363, 455 Colonial Bank of Australasia, Cherry v. 501 324 . Home 25 . 643, 670 E. p. 167, 168, 319 54 . 158 91 62 92 514 540 223 Colonial Gas Co. Colonial Life Assurance Co. v and Colonial Assurance Co. Colonial Mutual Society . Colonial Trusts Corporation, Bradshaw . Colquhoun's Case . Colquhouu V. Brooks V. Courtenay .... Colson, British and American Telegraph Co. i; Coltman v. Coltman (Jommissioners of Inland Rcvonno v. Angus 3(34 , British India Co. v. , . . 169 , Wright V 364 Compagnio Gcntirale : — Campbell's Case 171, 274, 353, 367 , Campbell v. . . . 256, 266 Compagnie G&^rale : — , Netichatel Co., E. p. Comptoir d'Escomte, Haggin v. 190, 211 218, 678 504 178 Congreve Hiohens v, Connell, PeukiTil v. Conquest's Case : — ■ (No. 1) (1 Ch. Div. 334) 353, 354, 378, 380, 381, 382, 384 (No. 2) (Eur. Arb., L. T. 121) 354, 665 Consolidated Bank .... 253 Consolidated Mineral Co. . . . 674 Consolidated Telephone Co. . . 549 Consols Insurance v. Wood . 273, 274 Const V. Harris . . 181, 448, 486 Constantinople and Alexandria Hotels Co. : — (13 W. R. 851) . . 225, 254 (35 BeaT. 349) . . 684 Continental Bank .... 259 ■ , London and County Bank, E. p. 314 , London and Mediterranean Bank, Be 198 Continental Union Gas Co., Gill r. . 88 Contract Corporation : — (2 Ch. 95) . . . 146, 289 (6 Ch. 145) . . . .303 (13Eq. 27) . . . .306 Barned's Banking Co., Me : — (2 Ch. 350) . . .273 (3 Ch. 105) 7, 80, 81, 345, 455, 456, 509 Ebbw Vale Co.'s Claim 279, 349, 502 Gooch's Case . . . 272, 273 Weston's Case . . . 147 Conway's Case Conybeare, 2\'ew Brunswick Co Cook's Claim . Policy . Cooke, Featherstone v. Cookos i\ Cookes Cockney's Case Coop V. Booth Cooper's Case^(32 Bear. 198) 105, 107, 486, Cooper, E. p. (15 L. T. 637) . (20 Eq. 762) , (10 Ch. 510) . , Aberystwith Pier Co. v. . , .\lbion Bank v. , London and Yorkshire Bank , Titterton v. . Co-operative Beer Co., Everinghamr. 234, 238 CorfielJ's Case .... 282 Cork and Youghal Railway Co. : — (W. N. 1866, 279) . . . 073 (1 Ch. 748) . . . 174, 282 Cornell v. Hay . 403, 571, 574, 576 77 106 109 297 353 510 . 266 59 . 435 228. 253, 265, 681 . 203 223 399 159 . 360 '. . 346 242 CostcUo's Case Cutter:-]], E. p. Cotton Plantation Co. of Natal . County Life Assurance Co. Coupland's Claim . Courtauld v. Sanders Courtenay, Colquhoun v. . Cousins, Indemnity Fire Office v. Coventry and Di.xon's Case 55, ,31 248 307 502 364 178 91 11 53, 85, 400, 401, 403 TABLE OF CASES. xvii Corentry, Evans v. . Cowan t). O'Connor . PAGE 405, 491, 499 . 63 Cox's Case (4 D. J. & S. 53) 75, 91, 486 (3 De G. & Sm. 180) Crabb v. Miller . 285 . 136 Cragg V. Taylor Craig 0. Phillips Crawley's Case Credit Co., In re ^ . 88 311, 312, 574 59, 114 . 161 Credit Foncier of England 537, 545, 546, 547, 549, 725 360, 361, 363 , Marseilles Extension Railway, Se 502, 541 Cree o. Somervail . . . 41, 87, 541 Crenver, &c., Co., E. p. Wilson 75, 408 Creylte's Case .... 144 Cricktner's Case . 557, 559, 560, 562 Criterion Gold Mining Co. . . 227 GTo\l,E.p 349 Crookhaven Mining Co. . . . 331 Groom's Case .... 73, 130 Cropper, Birch v. . . 294, 323, 512 Croskey v. Bank of Wales . 130, 450 Cross' Case ..... 41 Crosskill, Ship v. . . 107, 124, 128 Crouch V. Credit Foncier of England 360, 361, 363 Crowe, Eoberts v. . . . 145, 388 Crowley's Claim .... 90 Crown Bank .... 216, 253 , E.p., Se O'Malley . . .675 Crowther v. Thorley . . . 3, 4 Croydon Tramways Co., Hope v. . 169 Croysdill, E. p., Se Warwick Canal Co. 432 Crum, Oakbank Colliery Co. v, . . 511 Crumlin Viaduct Co. . . . 366 Cruse V. Paine . . 88, 89, 90, 139 Culley, E.p 223 Cumberland Black Lead Mine Co., EalesB 491 Cumming v. Prescott ... 56 Cummins, Wilkinson v. . . . 511 Cumpston, Butler v. . . 79, 88 Cunningham & Co., Simpson's Claim . 179 Cunninghame v. Glasgow Bank 88, 454 Currie's Case . Currie v. Goold , Hagell V. , Ogilyie v. , Somes V. Curtis' Case 51, 53, 56, 70 . 405 . 256, 258 111, 114, 125, 128 . 293 . 39, 43, 133, 282 Curzon, Droitwich Salt Co. v. . 15, 426 D. Dale's Case .... 372, 378 Dale, E. p., Se Trent Valley Rlwy. Co. 677 , Brown v 294 andMant . . . .142 and Plant . . . .491 D'Alte's (Count) Case . . .377 Dangerfield, Shaokleford, Ford & Co. v. 18,448 Daniell, E.p. , . . 54, 71, 409 e. Royal British Bank . .116 Daniell's Case. .... 41 D'Arcy v. Tamar, &o., Railway Co. Darlaston Steel Co., Slater v. Darlington Forge Co. Davidson's Case Davies' Case (Eur. Arb.) (33 L. T. 834) Davies, Lawford ti. . V. London Insurance , Phillips V. Davis' Case (12 Eq. 516) (26 L. T. 650) Davis, E. p. (16 W. R. 668) . , Accidental Insurance Co. v. V. Haycock . , Loring v. . . . , Pitchford t>. . Co. PAGE 509 582, 584 . 565 91 156, 202, 203 101, 139, 454 . 481 . 107 5 . 173 50, 61 348 109, 449 . 136 . 641 . 447 , Plumstead, &c., Water Co. v. . 290 Davison v. Gillies . . 514, 516, 517 Dawes* Case ; — (6 Eq. 232) . 319, 320, 476, 477 (38 L. J. (Ch.) 512) 199,451, 452, 459 . 479 5 . 25 . 352 . 185 . 223 . 454 . 383 . 272 689, 698 49 271, 359 42, 134 . 564 287 500, Dawes, Sharp v. Day, E. p. . V. Brownrigg . Dean and Gilbert's Claim V. Bennett Dearie, E. p. . e. Hall . Deas' Case . De Bay v. Griffin De Beauvoir's Case . De Beville's Case Delhi Bank's Case . Delmar's Case Delta Syndicate, E. p. Forde Dempsey, Government Security Co. ». Denham and Co. (25 Ch. D. 752) 128, 501, 502, 516, 520 (W. N. 1884, 122) . . .412 Dent's Case 8, 14, 16, 46, 48, 49, 71, 555 Dent, Blakely v 257 V. London Tramways Co. , 516, 517 V. Nickalls . . . 135, 138 Denton v. Macneil . . . 106, 109 Denton Colliery Co., E. p. Shaw 98, 565 De Pass' Case . . .27, 28, 31 D'Epineuil, Tadman v. . . . 366 Deposit Life Assurance Co. v. Ayscough 116 Derham's Case .... 49 De Rosaz' Case .... 61 De Rosaz and Anglo-Italian Bank, Se 396 V. Anglo-Italian Bank . 395, 396 Derry, Peek v. 104, 124, 126, 128, 129 V. Peek 110, 124, 125, 126, 127, 636 De Ruvigne's Case . . 50, 406, 409, 410 Devala Provident Co. . . .106 Devonshire Silkstone Colliery Co. . 329 Dewhurst v. Clarkson ... 22 Diamond Fuel Co. (W. N. 1878, 1 1) 226, 250 (18 Ch. Div. 400) 195, 216, 224, 225, 251, 252, 306, 314 Dick, E.p 106, 574 Dickinson «; Dodds .... 57 Dickson's Case, Elham Valley Co. 134, 283, 311, Dickson, Clarke u. V. Harrison , Holland v. 313 116 311 96 XVUl TABLE OP CASES. Dickson V.Swansea Yale, &c., Railway Co. 360 Digby's (Lord) Case ... 84 Dimmook, Carter v. . . • 313 Dimson's Fire Clay Co. . . 238, 244 Direct Spanish Telegraph Co. . . 544 , Bannatyne v. . . 538, 543, 544 Disderi and Co., Re (H Eq. 242) 54, 71 (18 L. T. 870) . . 248, 680 District Bank of London . . . 227 Savings Bank ... 5 Dix, Baring v. . , . . 215 Dixon's Case (15 L. T. 651) . . 109 (5 Ch. 79) . . . 468 et seq. Dixon V. Brown .... 272 V. Evans 61, 64, 114, 115, 468 et seq., 474 V. Wrench .... 88 Dobson's Case ... 77, 80 Dodds, Dickinson v. ... 57 . V. Hills 95 Dodgson's Case .... 494 Domau*s Case .... 41 Dominion of Canada Plumbago Co. . 276, 296, 332 Doncaster Permanent Building Society : — (3 Eq. 158) . . 229, 293, 434 (4 Eq. 579) . . 289, 293, 294 (11 W. R. 459) . . 248, 680 Doolan v. Midland Railway Co. . . 5 Dorning's Case .... 377 Dossett V. Harding . . . .116 Dougan's Case . . 64, 71, 72, 893 Douglas Forge Co., Ince Hall Co. v. . 358 D'Ouseley's Case .... 79 Dowling, Brighton Arcade Company v. 286, 325, 687 , Ward V. . . 134, 566 Downes v. Ship 12,104, 107, 108, 111, 112, 115, 314, 494 Dowse's Case 41, 384 Doyle, K p. . 77 D'Oyley, Reg. v. 483, 484 Dresser v. Gray . 420 Dressier, E. p. . 242 Drew's Case . . 321, 394 Drew V. Myers , 388 Driver's Executors' Case . 394 Droitwich Salt Co. . 565 V. Curzon 15, 426 Dronfield Silkstone Co. (17 Ch.Div. 76) 118, 538, 539, 540 (23 Ch. D. 511) . 276,296,332 Druitt's Case .... 302 Drummond's Case (2 Giif. 189) . 87 (4 Ch. 772) . . 46, 47, 48, 553 Dry Docks Corporation 243, 247, 319, 320 Dublin Exhibition Palace, &c., Co. . 236 Dublin Manure Co. . . . . 565 Dublin Trunk Railway Co., Eustace v. 69, 457 , Lawrenson v. ... 678 , Mcllwraith v. . . 61, 69 Duokett V. Gover , . . 486, 487 Duckworth, He . . . 118, 203 Dudley Banking Co., iJe Hopkins . 811 Duff's,Executors' Case . . 77, 78, 80 Duffin V. Mexican Co. . . . 98 Duke's Case . . 16, 47, 48, 64, 56 PAGE Dunaburg and Witepsk Railway Co. . 545 Duncan v. Topham .... 61 Dunlop ». Biggins . . . 61, 62 Dunston v. Imperial Gas Light Co. . 491 Duranty's Case . . . .130 Durham and Northumberland, &c.. As- sociation's Case .... 40 Durham County Society, E. p. Wilson 223 Dutton V. Marsh .... 178 Dyer, McGowan & Co. o. . . . 495 Dyke, E. p 268, 696 Dymock's Case .... 35 Dynevor Collieries Co. (W. N. 1878, 199) 674 (11 Ch. Div. 605) . 385, 582, 584 E. Eagle Insurance Co.'s Case Eales V. Cumberland Black Lead Mining 359 Co. , Watson 17. . . Earle, Webb v. . . . East Botallack Mining Co. East Cambrian Gold Mining Co. East of England Banking Co. 491 451, 476 . 514 . 222 248, 679, 680 . 277, 368, 369, 370, 686 , Pearson's Case . . . 387 East Gloucestershire Railway Co. v. Bartholomew . . .26, 70, 456 East Holyford Mining Co., Mahony c. 192, 502 East India Exploration Co., Klenck v. , 81, 539, 562 East Kent .Shipping Co. . . . 245 East Llangynog Lead Co. . 226 East Norfolk Tramway Co., Rooi'cr v. 23, 114 East Pant Du Mining Co. v. Merry- weather . . 484, 485, 487, 506 East and West India Dock Co. . . 431 1). Shaw . . . .431 East Wheal Martha Mining Co. 38, 93, 463 Eastern Counties Co., Hawkes v. . 15 Eastern Financial Association, Bank of Hindustan v. . . . . 386 Easternand Midlands Rail way, Mutterr. 96 Easton v. London Joint Stock Bank 363, 455 Eastwick's Case .... 409 Easuni's Case .... 87, 88 Eaton. Maynard ». . . , 136, 137 , Nickalls t). . . . . 138 Ebbetts' Case . . .44, 63, 76 Ebbw Vale Co.'s Claim (8 Eq. 14) 279, 349, 502 Ebbw Vale Co.'s Case (5 Ch. 112) 312, 369 (4 Ch. D. 827) . 537, 549, 585 Eberhardt Co., Nioholl v. . 394, 584 Eberle's Hotel Co. v. Jonas 272, 358J 367 Ebsworth and Tidy's Contract . 324, 439 Ebury (Lord), Beattie v. , Scott V. E. C. Powder Co. . Eclipse Gold Mining Co. Economic Omnibus Co. Eden v. Ridsdale's Lamp Co. 493, 501 . 525 . 549 293, 294 . 441 406, 410 TABLE OF CASES. XIX , Graham «. 241, 242, 254, 258, 439 , Walton t). . . 175,176,177 Edgington v. Fitzmaurioe 104, 124, 125 Edison Company, Gouvaud v. . . 519 Edmonds v. Blaina Co. . . 169, 170 1). Foster . . .84, 85, 180 , Prosser o. . . . . 411 Edmunds, Newry and Enniskillen Rail- way Co. V. . . , , . 448 Edwards' Case . . . 42, 44 Edwards, Cockburn u. . . . 140 Edwards v. Kilkenny Railway Co. . 63 , Eamskill ». 404, 411, 499, 500, 501, 502 Elder V. New Zealand Land Co. 23, 109 Electric Co 337 Electric Telegraph of Ireland 208, 262, 432 ■ , E.p. Bunn . . . .304 Eley, Bates v 696 V. Positive Assurance Company . 213, 525, 559 Elham Valley Co., Dickson's Case 134, 283, 311, 313 Elkington's Case Elliott V, Richardson Ellis, £.^. . Elphinstone (Lord), E. p. V. Moukland Iron Co. Emma Silver Mining Co. . V. Grant (11 Ch. D, 918) 65, 449, 553 448, 484 . 334 . 355 . 356 . 348 409, 575, 577, 578 (17Ch. D. 122) . .411 V. Lewis .... 575 Emmanuel, E. p. . . . 275, 278 Emmens, Portal 0. . . 45, 46, 54, 456 Emmerson's Case 246, 283, 343, 344, 675 Emperor Life Society . . . 319 Empire Assurance Corporation : — (16 L T. 341) 228, 229, 254, 344, 675 (17W. R. 431) . . .278 (17 L. T. 488) . . .304 , Bagshaw, E. p. . . . 394 Empire Mining Co. .... 582 Empress Engineering Co. 213, 409, 492, 525 Empson's Case . . . 61, 77 England's Case .... 39 Englefield Colliery Co. . . 406,407 English Assurance Corporation, Hol- dich's Case . 353, 354, 356, 666, 685 English Channel Steamship Co. v. Rolt 1 65, 166 English and Foreign Credit Co. v. Arduin 68 English, Irish, &c.. Rolling Stock Co., Lyon's Case . 23, 49, 109, 447, 509 English Joint Stock Bank : — (W. N. 1866, 199) . . .239 (3 Eq. 203) . . 300, 303, 700 , Barwick v. . . 93, 105, 495 , Harding, E. p. . . 350,397 English Spelter Co., Richardson v. . 515 Ennis and -West Clare Railway Co. 21, 423, 432 Enthoven, Kellock v. 145, 147, 157, 202 Erichsen v. Last .... 159 Erlanger, New Sombrero Co. ». . 404, 446, 509, 575, 577 Ernest, Caldwell » 273 V. Nicholls . . . 503, 505 PAGE Esdaile v. Payne . i . . 312 Esgair Mwyn Mining Co. . . 687 Esparto Trading Co. . 54, 469, 502 Estate Co. (5 Ch. 407) . . 545 Estates Investment Co. : — , Ross V. . . 107, 108, 120, 130 ' , Turnley and Oliver, E.p. . 313 , Wells V 258 Etna Co., E.p 281 Etna Insurance Co., E. p. National Pro- vincial Bank of England . . 314 Eupion Fuel and Gas Co. . . . 412 European Bank : — , Oriental Commercial Bank, E. p. : — (5 Ch. 358) . . .502 . (7 Ch. 99) . . 272, 364 , Paul, E.p 340 European Banking Co., E. p. Baylis . 223, 248, 251, 254 European Central Railwav Co. : — , Heymann v. 107,'l08, 109, 114, 125 European Co., E. p. Oriental Corpora- tion (4 Ch. D. 33) . . . 370 European Life Assurance Society : — (9Eq. 122) 208,215,216,217,218, 221, 649 (10 Eq. 403) . . . 224, 249 (W. N. 1872, 85) . . . 260 Eustace v. Dublin Trunk Rlwy. Co. 69, 457 Evans' Case . ... . .46 Evans v. Coventry . . 405, 491, 499 , Dixon V. 61, 64, 114, 115, 469 et seq., 474 , Houldsworth v. 461, 468 et seq., 494 , Marseilles Extension Rlwy. Co., Be 272 V. Smallcombe . 466, 468 et seq. , Spackman v. 39, 50, 116, 133, 468 et seq., 493, 522 e. Wood . . 37, 133, 136 Eve's Case 55 Eve, James v. . . . 504, 507 Evens' Claim 375 Everingham v. Co-operative Beer Co. . 234, 238 Exchange Drapery Co. . . 293, 453 Exeter and Crediton Rlwy. Co. v. BuUer 487 Exhall Mining Co. (4 D. J. & S. 377) 234, 240, 396 , Bleckley, Se (35 Beav. 449) . 240 , Bleckley's Case (16 L. T. 784) . 424 , Miles' Case .... 57 -^ , Wyley v 257 Exraouth Docks Co. 213, 362, 431, 433, 509 Explosives Co., Reid v. . . . 350 Eyre, Quartz Hill Co. v. . . . 212 Eyre's Case .... 27, 31 Eyton (Adam), Limited . . 329, 330 Factage Parisien . Pagan's Case . Family Endowment Society , Balfour's Case , Hawtrey's Case , Kennedy's Case . 217, 218 . 374, 377 371, 372, 430 . 377 . 372, 378 376, 379, 380 b 2 XX TABLE OF CASES. 27, 38, 484 . 360 21, 485 21, 485 497, 498, 562 . 504 . 234 77, 80 480, 510 181, 466 . 343 15, 551 49, 79 224, 256 . 403 244, 296, 487 . 136 V. 194, 195 . 492, 495 . 159 205, 452, 461 PAGE Fareham Blue Brick Co., Totterdell v. 502, 509, 510, 569 Farquhar, Moffatt t). Farquharson, Aslatt v. Farrar v. Farrar's, Limited Fai'i'ar's Limited, Farrar v. Faure Electric Co. . Fawcett v. Wliitehouse Fawcus, Garbutt v. Fearnside and Dean's Case Featliei'stone v. Cooke Featherstonhaugh v. Lee Moor Co. Feigan's Case Felling and Rimington's Case Fel gate's Case Fell, E. p., Cambrian Mining Co. Feltom's Executors' Case . Fenn, Bentinck v. 107, 225, 400, 401, 577, 578 Fenn, Cape Breton Co. ». . Fenwick ». Buck Ferguson, Washoe Mining Co. V. Wilson Fergusson, Gilbertson v. . Ferick, Addams v. . Fermoy (Lord), Land Credit Co. of Ire- land V. . . 496, 500, 501, 541 Fernie, Hallows v. 108, 109, 111, 130, 193, 476, 490, 500 Ferrao's Case . . 274, 553, 554, 565 Field V. Field 255 Finance Co., He (19 L. T. 273) . 49, 54, 71 Financial Corp. (W. N. 1866, 162) 318, 392 (2 Ch. 714) . . . .473 , Cleve V. . 186, 318, 321, 336 , Clinch V. . . 318, 392, 393 , Feiling and Rimington's Case 15, 551 , Goodson's Claim . . 81 , Holmes' Case . . . 15,551 V. Lawrence . . . 200, 201 , Williams v. . . . . 186 Financial Insurance Co., Bloxam's Case 302 Finucane's Case .... 62 Firbank v. Humphreys . . 166, 501 Fire Annihilator Co. . 333, 441 Firmstone's Case . . . 560, 562 Fisher's Case . . . . 64, 66 Fitzmaurice, Edgington v, 104, 124, 125 Flagstaff Mining Co. of Utah . 220,227 Flanagan v. Great Western Railway Co. 506 Fleming, Australian Steamship Co. v. . 195 , Peninsular Co. v. . 16, 19, 182, 196 Fleming's Case . . 373, 375, 379 Fletcher's Case 53, 56, 60, 80, 282, 464, 473, 475 Flitcroft's Case 400, 405, 411, 496, 499, 516, 518, 541, 577 Florence Land Co., E. p. Moor . 168, 169 , Norton v. . . . ,168 Nicol's Case— Tufnell's and Pon- sonby's Case : See Tufnell's Case. Fontaine's Case . . . 226 310 Forbes' Case (26 L. T. 680) . . ' 302 (8 Ch. 768) . . 51, 52, 490, 565 (19 Eq. 353) ... 46, 54 Forbes' Claim (19 Eq. 485) . . 251 Forbes and Juiid's Case . 46, 47, 48, 49 Ford, Painter w. . . . . 474 PAGE Ford, Rashdall •<;. . . . 501 Fordc, E.p 564 Fore Street Warehouse Co. . . 541 Foreign Gas Co., Bower v. . 167, 168 Forest, E.p 370 Forest of Dean Coal Co. 399, 400, 401, 408, 448, 492, 497 Forrest v. Manchester Railway . . 96 Fortune Copper Mining Co. 158, 677, 679 Forwood's Claim Forwood, Rhodes v. . Foss ». Harbottle Foster, Edmonds v. . Fothergill's Case Fountain's Case 364, 684 . 851, 515 . 486 . 84, 85, 180 48, 553, 554, 555 . 424 Fountaine v. Carmarthen Railway Co. 165, 503 Fourdrinier, E. p. . . 240, 396, 460 Fowler, Pure Spirit Co. v. . .195 Fowler's Case. . . . 54, 56 Fox's Case (5 Eq. 118) . 121, 122, 134 Fox, E. p. :— (11 W. R. 577) (6 Ch. 176) (17 Q. B. D. 4) Fox V. Clifton , Pender v. France v. Clark Frank Mills Mining Co. Fraser's Case (24 L. T. 746) (28 L. T. 158) Free Fishermen of Faversham Freehold Land, &c., Co. : — 45, 58 185, 217, 225, 249, 262, 318, 336, 391, 393, 395 608 . 447 . 136 . 454, 455 352, 353, 464 61 46, 48, 49, 557 210, 433 Kent V. V. Spargo Freen & Co., Se Frere's Case . Fricker's Case Frontino, &c., Co., Hart i-. Fryer, Ryhope Coal Co. v. Furdocnjee's Case . Furneaux, Nickalls ». Fyfe's Case 108, 114, 119, 121, 232 . 195 46 60, 456 . 303 94 20, 159 . 202 44, 136 , 122, 132, 134, 282, 283 G. Galland, Se . , . . . 296 Gammon's Case .... 40 Gaudy v. Gandy . . . .213 Garbutt v. Fawcus .... 234 Gai'dden Lodge Co., Rose v. 234, 245, 246 Garden Gully Co. c. M'Lister 193, 446, 465, 476, 481, 491, 503 Gardiner, Macdougall 0. 480, 483, 486, 487 Gardiner's Case . 248, 381, 383, 665 Gardner v. London, Chatham, and Dover Railway Co. ... . igs Garnctt Mining Co. v. Sutton . '. 424 Garriok v. Taylor .... 445 Garstin's Case ... 28 388 Gartness Iron Co., E. p. Lord Elphinstone 355 Gartside 0. Silkstone Co. . . . 172 Gaskell v. Chambers . . . 153 Gaslight Improvement Co. t>. Terrell '. 398, 399, 448 TABLE OP CASES. XXI PAGE Galling Gun Limited . . . 544 Gelley Deg Colliery Co. . . . 515 General Bank for Promotion of Agri- cultural and Public Works . . 547 General Co. for Promotion of Land Credit . . 7, 8, 209, 218, 457 General Discount Co. v. Stokes . . 200 General Estates Co., K p. City Bank . 179, 180, 360, 361 General Exchange Bank : — (14 W. R. 826) . 211, 248, «75 (4 Eq. 138) . . . .251 , Hartland v. . . 350, 351, 352 V. Horner . . 497, 501, 504 General Financial Bank 229, 254, 265, 681 General Floating Dock Co., Hughes' Case 102, 456 General International Agency Company : — (36 Beav. 1) . 250, 262, 334, 339 (15 W. R. 973) . . .697 General Light Co., Marzetti's Case 497, 498, 500 General Mutual Society, Walker v. 177, 434 General Property Investment v. Matheson 539, 540 General Provident Assurance Company : — (17 W. R. 42) ... 267 (17 W. R. 514) . . 152, 165 , Green v 109 . , National Bank, E. p. 162, 165, 403 General Rolling Stock Co. 210, 264, 334 , Chapman's Case . 349, 350, 680 , Joint Stock Discount Co.'s Claim 271, 370, 371 General Share Co. ». Wetley Brick Co. 239, 242 General South American Co. . . 163 General Works Co., Gill's Case 143, 288, 367 German Date Coffee Co. . . 214, 215 German Mining Co., E. p. Chippendale 168, 174, 496, 498 Gibb, Overend & Gurney Co. e. 128, 404, 498 Gibbs' and West's Case 165, 167, 168, 286, 287, 343, 344 Gibbs, Pacific Steam Navigation Co. v. 196 Gibson, H.p 372 V. Barton . 84, 85, 180, 193, 403 Gilbert's Case. . 27, 32, 281, 325, 448, 453, 496 Gilbertson ». Ferguson . . . 159 Gilchrist, Henderson v. . . . 205 Giles, Glover v, , . . . 6, 21 , Hamer v 238 V. Nuthall . . . .266 Gill's Case, General Works Co. 143, 288, 367 Gill V. Continental Union Gas Co. . 88 Gillespie v. Glasgow Bank . 88, 89 . -, Shepherd v. , . . . 135 Gillies, Davison v. . . 514, 516, 517 Gilman's Case .... 46 Gilpin, McCoUin v 179 Glamorgan Iron Co. v. Iivine . . 122 , Marshall v. 116, 121, 122, 133, 134, 144, 145, 256, 257, 464, 466, 475 Glamorganshire Banking Co., Morgan's Case . . . 347, 348, 396, 519 Glanfield's Case . . . .384 Glanville's Case . . . .343 Glasgow Bank , Buchan's Case , Cunninghame v. , Gillespie v. , Houldsworth v. PAGE . 309 77, 86, 204, 206, 462 88, 454 103, 104, 107, 123, 124, 563 V. Mackinnon .... 513 , Mitchell V. . . . 343, 641 , Muir ti. 7, 71, 80, 86, 87, 103, 115 , Tennent v. . . 117, 119, 343 Glasgow Society, Auld ». . . . 177 Glasgow & S. W. Railway Co., Macke- reth V. . . . . 678 Glasier v. Rolls . 127, 128 Glazebrook's Case . . 376, 378 Gledhill's Case 57 Gledstanes & Co.'s Case . . 272, 279 Gloag's Case . , 359 Globe Iron Co. 162, 163 Steel Co. . 220 Glover v. Giles . 6, 21 Gold Co. (11 Ch. Div. 701) 217, 225, 237, 262, 333, 334, 336, 339 (12 Ch. Div. 77) 300, 301, 302, 327 Gold Co. of Southern India . . 57 Gold Hill Mines . . . 211, 678 Goldschmidt v. Jones . . . 136 Goldsmid's Case .... 69 Goldsmid, Ramsgate Hotel Co. «/. . 76 Goldsworthy, Smith v. . . . 182 Gooch's Case : — '- (7 Ch. 207) . . . 272, 273 (8 Ch. 266) ... 43, 147 Gooch V. London Banking Association 356 Good, S. p. (14 Ch. Div. 82) . . 355 (13 Q. B. Div. 731) . . .241 Goodson's Claim, Financial Corporation 81 Goodwin v. Robarts . . . 363 Goold, Currie v. . . , . 405 Gordon v. Campbell ... 86 , Jones V. .... 353 Gore & Durant's Case ... 67 Gorringe v. Irwell India Rubber Works 366 Gorrissen's Case . . 61, 76, 122, 134 Gould, He 367 Goulton V. London Architectural Co. . 466 Gouraud v. Edison Co. . . . 519 Gouthwaite, E. p. . . . . 461 Gover, Duokett v. . . . 486, 487 Gover's Case 106, 571, 572, 573, 574, 575 Government Security Co. u. Dempsey . 286 Government Stock Investment Co., Reg. V 483 Gower's Case . 31, 80, 116, 134, 282, 469 Grady's Case ... ,41 Graham, E.p. . . . 355, 357 V. Edge . 241, 242, 254, 258, 439 Grain's Case ... 41, 382, 384 Gi'and Colliei' Dock Co., Preston v. . 448 Grand Trunk Railway Co. o. Brodie 273, 275 Grant, Emma Mining Co. «. (11 Ch. D. 918) . . . 409, 575, 577, 578 (17 Ch. D. 122) . . .411 , Household Fire Insurance Co. v. 62, 63 , Twycross v. (2 C. P. Div. 506) . 571, 572 574 575 (4 C. P. Div. 40) 129* 404* 574 XXll TABLE OP CASES. Grant v. United Kingdom Switchback Co 166, 492 Granville (Earl), Baddeley v. . . 574 Grave, Nant-y-Glo Co. v. . . 406, 410 Graves, Allen V. . . ■ 136, 139 Gray, Dresser ...... 420 V. Lewis . 486, 496, 497, 501 V. Raper . . 178, 254, 439 V. Seoliham . . . 272, 365 Gray's Case ..... 88 Great Berlin Steamboat Co. . . 349 Great Britain Association v. Wyllie . 527 Great Britain Mutual Society (16 Ch. Div. 246) 45, 142, 143, 212, 262, 434, 649 (19 Ch. D. 39 ; 20 Ch. Div. 351) 356, 650, 685 , Rudow V. . . 233, 237, 440 Great Cwmsymlog Mining Co. . . 677 Great Eastern Railway Co. v. Turner . 92 , Attorney-General v. . .13 Great Indian Peninsular Railway Co., Taylers 456 Great Luxemhourg Railway Co. v. Magnay . . . 504, 577, 578 Great Northern Copper Mining Co. : — (14 W. R. 705) . . 250, 263 (17 W. R. 462) . . 217, 261 Great Northern Railway Co., Henrv v. '514,518 , Mathews v. . . . . 518 V. Tahourdin .... 431 Great Northern Salt Co. . . 346, 490 Great Ship Co., Parry's Case 235, 236, 245 Cireat Western Coal Co. (21 Ch. D. 769) 209, 211, 224, 263, 2«4 Great Western Coal Co. (W.N. 1885,37)"305 Great Western Railway Co., Be Bashell 397 , Flanagan v, . . . . 506 , Hoole V. . . 486, 513, 518 -, Wiltshire Iran Co. ». . 350, 397 Great Western Steamship Co. . . 549 Great Wheal Polgooth Co., Be Tsmer 403 405, 676 Greatorei, Lancashire Cotton Spinning Co. V 347 Green's Case ..... 55 Green v. General Provident Assurance Co 109 , Phosphate of Lime Co. v. . 14, 466, 472, 540 , Whaley Bridge Co. „. 575, 576, 579 Greenside Co, Topham v. . 169, 170 Greenwood, JE. p., Be Liverpool Civil Service Association . . . 34S Gregg's Case . . .58, 76, 282, 457 Gregory v, Patchett . . . 129 Grey's Brewery Co. . 304, 305, 696 Grey's Case, Anglo-Indian Co. . 133, 281 Griffin, De Bay v. , , , . 272 Griffith, E.p 398 , Carr v. .... 3 ti. Paget . 294, 295, 32S, 394 Griffith's Case . . . 374, 375 Grimwade v. Mutual Society . 128, 498 Grisewood's Case .... 457 Grissell v. Bristowe . 135, 137, 138 Grissell's Case . 199, 203, 286, 287, 288, 357, 449, 564 Grissell, S.p. (3 Ch. Div. 411) 278, 297, 332 Grosvenor, Studdert v. . 489, 498, 525 Grosvenor Library Co., Hoby v. . 24, 25 Guardian Fire and Life Assurance Co. v. Guardian and General Insurance Co. 24 Guardian Society .... 22 , Hawkins' Case . . 173, 175 Guest V. Worcester Railway Co. . 70, 83, 93, 558 Guillemin, E. p., Be Oriental Bank 344, 675 Guinneis v. Land Corp. of Ireland 13, 15, 16, 518, 525, 541, 542 Gunn's Case (3 Ch. 40) . 56, 58, 59, 76 (Eur. Arb.) .... 77 (38 L. T. 139) . . .287 Gurney, Overend, Gui-ney & Co. v. . 404 , Peek V. . 104, 107, 125, 126, 129, 130, 404 Custard's Case . . 39, 71, 132 Gwyn, E. p., Be Sea Fire Ass. Co. .314 H. Habershon's Case Hafod Hotel Co. Hagell V. Currie Haggin o. Comptoir d'Escompte Hakim's Case . Hale, Kp. . Hall & Co. (W. N. 1885, 190) (37 Ch. D. 712) Hall, E.p.. , Dearie v. ». Old Talargoch Co. Hall's Case (3 De G. & Sm. 80, and 1 Mac. & G. 307) . . 77, 88 (5 Ch. 707) . 46, 47, 80, 464, 469, 475, 476 Hallows V. Fernie 106, 109, 111, 130, 193, 476, 490, 500 Hallmark's Case . . 27, 61, 500, 502 Hamer's Devisees' Case . 77, 204, 462 Hamer v. Giles .... 238 Hamilton's (Lord Claud) Case 16, 52, 180, 490, 506, 579 Hamilton, Melhado e. , . . 182 Hamilton's Windsor Ironworks, E. p. Pitman .... 165, 169 Hamley's Case ... 51, 53 Hammersmith Town Hall Co. . . 246 Hammond, Jennings v. ... 5 Hampshire Co-operative Milk Co. . 51 Hampson, Imperial Hydropathic Co. v. 487, 492, 508 t). Price's Candle Co. . 491, 493 Hankey's Case : — International Contract Co., Be 385, 584 New Zealand Banking Corp., Be 258, 388 Hanly, E.p 492 Hannah, New Westminster Brewery Co. t). . , , . . 4H Harben v. Phillips . 186, 193,480, 481, 482, 487, 489, 508, 510 Harbottle, Foss v. . . . . 436 Harding, Dossett v 116 , English Joint Stock Bank.iSe 350, 397 84, 398, 450 393 256, 258 190 ,218 678 29 239 338, 676 558 305 454 123, 256 TABLE OF CASES. XXIU „ PAGE Harding, Plumstead Water Co., Re . 252 , Powis, V 116 , Williams v. . . 199, 279, 690 Hardy v. Metropolitan Land Co. . 502 Hare's Case .... 72, 120 Hargrove & Co., K p. . 2, 4, 5, 289, 434 Harman's Case . . 382, 383, 384 Harper, E. p. , . . . 274 Harris' Case ... 62, 63, 68, 77 Harris v. Amery .... 4 , Const V. . . 181, 448, 486 , Mason v. . . 480, 485, 486 V. Nortli Devon By. Co. 469, 474, 496 V. Venables .... 226 , ^-P 279, 690 Harrison's Case : — (3 Ch. 633) .... 64 (6 Cli. 286) .... 29 Harrison, Kp. . . 240, 396, 460 , Dickson v. . . . . 311 V. Marquis of Abergavenny . 676 V. Mexican Railway Co. 8, 15, 181, 183 , Taft ». . . . . . 38 Hart's Case . , .42, 132, 134, 283 Hart, Clarke t>. . . . 464, 465 V. Frontino, &c., Co. . . 94 Hart Davies, Hill v. . . 212, 676 Hartland ». General Exchange Bank . 350, 351 352 Hartley's Case 71, 80, 659, 563, 564,' 565 Hartmont, Phosphate Sewage Co. o. 405, 577 Harvey v. Clough . . . 145, 425 V. Johnston .... 61 Harward's Case . . . 53, 55 Harwich Harbour Co. . . . 565 Harwood, K p. . . . 63, 77 Hastie's Case . . . 198, 200, 207 Hatcher, U. p. West of England Bank, -Se . . . . 143, 199, 207 Hatfield Cask Co. . . . 369, 686 Hattci-sley v. Carlisle ... 61 Hatton, E.p. . . . 31, 459 Haven Gold Mining Co. 215, 216, 262, 483 Hawes, International Marine Co. v. . 291, 689, 716 Hawkes ». Eastern Counties Co. . 15 Hawkins' Case (2 K. & J. 253) . . 23 (23 Ch. Div. 440) . . 173, 175 Hawkins, X p. : — (3 Ch. 787) . . . 235, 285 , -Se Metropolitan Saloon Omnibus Co. (28 L. J. (Ch.) 830) . 208, 247 V. Maltby . . . .136 Hawtrey's Case . . . 372, 378 Hay, Charlton v. . . . 571, 574 , Cornell v. . 403, 571, 574, 576 V. Swedish Railway Co. . . 584 Hay's Case . . . 405, 406, 407, 409, 504 Haycock, Davis v. . . . . 136 Haycock's Policy, Se . . . 289 Hayes, Lord Eanelaugh v. . . 89 Hayman v. Governing Body of Rugby School . . . . ' . 508 Haytor Granite Co. . . 299, 355, 356 Head's Case .... 99, 134 Healey v. Story .... 178 Heathorn, Benson u. . . , 504 Heatley v. Newton .... 311 PAGE Heaton's Steel Co., Simpson v. . 63, 102 Heavan, K p., Se Lundy Granite Co. 240, 241 Hebb's Case . . . . 57, 62 Heiron, Metropolitan Bank v. . . 41 1 Heiron's Case, Metropolitan Bank 301, 302, 304, 327 Helbert's Case .... 147 Helbert «. Banner . 145,146,147,148,388 Helby's and Others' Cases . . 520 Hemming v. Maddick . . 88, 89 Henderson, S. p. (19 Beav. 107) 27, 456 V. Bank of Australasia (40 Ch. D. 170) 493 (W. N. 1890, 98) . . . 186 , British Nation As^oc, Se. 248, 268, 329, 336 D. Bamber . . . .314 V- Gilchrist .... 205 V. Lacon . 104, 107, 108, 119, 127, 128, 495 V. Peruvian Railway Co. . . 254 V. Royal British Bank . 116, 118 Hendriks «. Montagu . . 24, 25 Henessey's Executors' Case . . 40 Henley & Co. (9 Ch. D. 469) 238, 239, 323 Henly's Case (W. N. 1878, 133) . 80 Henry v. Great Northern Railway Co. 514, 518 Hepworth, Colonial Bank v. . 363, 455 Hercules Insurance Co. . 22, 346, 419, 435 362 , 131, 283 226, 227 409, 492, 559 368, 369, 686 . 40, 45, 133 90, 138 , Brunton's Case , Lowe's Case . Hereford Waggon Co. :-^ (17 Eq. 423) . (2 Ch. Div. 621) . Herefordshire Banking Co Heritage's Case Heritage v. Paine . Hermann Loog & Co., Ramsay's Case 255, 309 Heme Bay Co. (10 Ch. D. 42) . 213, 433 Heme Bay Commissioners, Webb o. 93, 94 Hertfordshire Brewery Co. . 7, 335 Herts Waterworks Co., Blaker ». 168, 169 Hesketh's Case .... 144 Hester & Co 395 Howard v. Wheatley . . 461, 462 Hewitt's Case . . . .51,55 Heymann v. European Central Railway Co. . . . 107, 108, 109, 114, 125 Hibblewhite v. MoMorine . . . 453 Hichens o. Congreve . . . 504 Hiokie & Co.'s Case . . . .272 Hicks V. May . . . .291 Higgins, Dunlop «, . . . 61, 62 Higgs' Case .... 393, 394 Higgs V. Northern Assam Tea Co. 360, 361 Hill's Case (2 Eq. 605) . . .172 (4 Ch. 769, n.) . . 131, 132 (20 Eq. 585) . 206, 437, 445, 461 Hill Pottery Co 236 Hill, E. p. (32 L. J. (Ch.) 154) . . 505 V. Boyle .... 411 V. Bridges . . 357, 367, 685 V. Hart Davies . . 212, 676 , Lacey v., Crowley's Claim . 90 — V. Lane ..... 128 , United Ports Co. v.. . . 195 XXIV TABLE OF CASES. PAGK Hills, Dodds v 95 Himalaya Tea Co., Mair v. . . 183 Hindustan, &c., Bank ol-.^See Bank of Hindustan, &c. Hinton, E. p. . . . . . 311 Hire Purcliase Co. v. Richens . 278, 321 Heave's Case .... 80, 87 Hobbs V. Wayet .... 89 Hobson, Castellan «. . . 136, 138 Hoby V. Grosvenor Library Co. . 24, 25 Hodges' Distillery Co., E.p. Maude 198, 294 Hodgkinson v. Kelly . 136, 319, 337 ■ ». National Live Stock Insurance 541 Hodson V. Tea Co 168 Holden's (HenryJ Case Holdich's Case . 353, 354, 356, 666, 685 Holland v. Dickson . . HoUinsworth's Case Hollyford Mining Co. <5 Ch. 93) (L E. 3 Eq. 208 Holmes' Case (2 Ch. 714). (Alb. Arb.) . Holmes v. Newcastle Abattoirs Co. 42, 686 96 . 285 . 309 . 293 15, 551 . 378 486, 542, 543 137, 202 . 312 e. Symons Holroyd, E. p. Holyford ; Bee Hollyford. Home Assurance Association ; — (12 Eq. 59) . . 226, 227, 228 (12 Eq. 112) . 210, 226, 251, 263 . , Richards e. . . . .61 Home and Colonial Assurance Co., Colonial Life Asswrauce Co. >d. . 25 Home Investment Society. 275, 296, 332 Homer Mines, .B.^. Smith . . 609 Homersham fo. Black . . . 458 Homfrey, Phillips ». . . , 404 Hooke V. Piper . . . 296, 332 Hookey, E. p., Re Eisca Coal Co. . 311 Hoole i>. Great Western Railway Co. . 486, 513, 518 Hooper's Telegraph Works, Meniere. 485, 486 Hop and Malt Exchange Co. 214, 248, 249, , Eankin v. , . . .67 Hope, &c., Insurance Society, Bowes t>. 209, 212, 429, 430 Hope ». Croydon Tramways Co. . 169 — — V. International Financial Society 465, 486, 540, 543 Hopkins, Be, E.p. Dudley Banking Co. 311 , Williams v. . . 365, 367, 368 Hopkinson v. Rolt .... 87 Horbury Bridge Co. 184, 186, 263, 419, 483, 484 . 41 319, 321 169 497 501, 504 Horsey's Claim .... 355 Hort's Case . . 41, 354, 382, 383, 384 Horton, Wright v. . . 161, 162, 163 Hough, Merchant Banking Co. of Lon- don » 211 Houldsworth v. Evans 461, 468 ci seq., 494 V. Glasgow Bank . 103, 104, 107, 123, 124, 563 Household Fire Insurance Co. v. Grant 62, 63 Horn's Case . Hornby's Case Home e. Hellard, E. p. . Horner, General Exchange Bank v. PAGE Household Insurance Co. . 309, 403, 698 How's Case ..... 32 Howard v. Patent Ivory Co. . 165, 168, 172, 409, 525 Howard's Case . . 63, 77, 510 Howbeach Coal Co. v. Teague 193, 446, 447, 482, 490, 503 Howe, Attree v. . . . .172 Howe Machine Co., Fontaine's Case 226, 310 Howell's Case 377 Hoylake Railway Co., Littledale, E. p. 32, 274, 436, 460 , Welsby and Andersson's Case . 474 Hoyland Co., E.p 267 Hubbersty v. Manchester Railway Co. 459 Hudson's Case. . . . 145,388 Hughes' Case (15 W. E. 476) . 102, 456 Hughes' Claim (13 Eq. 623) 349, 370, 685 Hughes, E.p. . . . . 370 Hughes-Hallett v. Indian Mammoth Co. 88, 89 Hulett's Case 362 Hull and County Bank . . .250 Hull Central Drapery Co. . . 281 Hull Forge Co. . . . 312, 313 , Mitchell, E.p. . . .245 Humber Ironworks Co. : — (16 W. R. 474, 667) . . 167 (3 Eq. 15) . 228, 248, 249, 253, 675 (8 Eq. 122) . . . .353 , Warrant Finance Co.'s Case : — (No. 1) . . 368, 369, 370 (No, 2) . . . 364, 369 Humby's Case . . . 147, 157 Humphreys, Firbank v. . . 166, 501 Hunt's Annuity Case (1 H. & M. 79) . 354 Hunt's Case, Brighton Brewery Co., Se . . . 403, 407, 498, 504 , Cameron Coalbroofc Co., Se . 36 Hunt's Claim, Southampton Hotel Co., £e 349 Hunt V. Wimbledon Local Board . 570 Hurd, Lindsay Petroleum Co. v. . 576 , Redgrave c. . . 110, 111, 127 Hutchinson, Paine v. . 37, 133, 136, 343 Hutton 0. Scarboro' Cliff Hotel Co. . 182 V. West Cork Railway Co. . 491, 493 Hyam's Case . . . .28, 30, 31 Hydraulic Tube Drawing Co. . 232, 319 Ilfracombe Railway Co. o. Nash. . 55 , Pickering v. . . . . 167 Imperial Anglo-German Bank . 218, 433, Imperial Bank of China, &c. 186, 318, 333, 336, 392 Imperial Bank of China, &c., v. Bank of Hindustan, &c. : — (ICh. 437) . . .195 (6 Eq. 91) 185, 392, 395, 466 Imperial Continental Water Corporation 301, 302 Imperial Gas Light Co., Dunston v. . 491 Imperial Guardian, &c.. Society 211, 226, 251 Imperial Hydropathic Co. v. Hampson 487, 492, 508 TABLE OF CASES. XXV Imperial Land Co. of Marseilles : — (W. N. 1882, 173) . . .347 , Larking, E. p. . . . 353 , National Bank, Se. 285, 403, 497 . Vining's Case. . , 320, 394 Imperial Mercantile Credit Association : — (16 L. T. 314) . . .288 • (W. N. 1866, 257) 248, 249, 336, 339 (12 Eq. 504) . 279, 390, 391, 396 V. Ciiapman .... 497 • V. Coleman . . 129, 504, 505 Imperial Mercantile Credit Co. (5 Eq^. 264) 307 Imperial Silver Quarries . . 54, 71, 212 Imperial Steam Coal Co. . . 23, 236 Ince Hall Co., £e . . . . 560 , Binney v. . . . 74, 87 V. Douglas Forge Co. . . 358 Inclibald ». Seilgherry Coffee Co. . 351 Ind's Case 456 Indemnity Case (Alb. Arb.) . . 298 (Eur Arb.) . . . .298 Indemnity Fire Office v. Cousins . 11 Inderwick, .E. j3. . . . 209,215 V. Snell 508 Indian and London Life Assurance Co. 372 , E. p. Dyke . . . 268, 696 Indian Mammoth Co., Hughes-Hallett v. 88, 89 Indian Zoedene Co. 186, 323, 324, 329, 489 Ingham, Rogers v. , . . . 405 Inland Revenue, Commissioners of, British India Co. ». . . . 169 Inns of Court Hotel Co. : — . 96, 518 140 502 348 213, 525 168, 182 208, 247 . 106 98 87, 461 PAGE Metropolitan Railway Co., Salisbury ». 499 Metropolitan Railway Warehousing Co. 213, 247 , Touche ». . . . Metropolitan Saloon Omnibus Co. , Bryon v. . . . , Hawkins, E. p. Meux' Executors* Case Mexican Co., Dufiin v. Mexican Mining Co., Re Perkins Mexican Railway Co., Harrisons. 8, 15, 181, 183 Meyer's Case ..... 69 Middlesborough Assembly Rooms Co. 208, 213, 214, 217, 262, 336 Middlesborough Building Society . 176 Middlesborough Fire Brick Co. . 255, 309 Middleton v. Pollock, E. p. Nugee . 288 Middleton, Poole o. . . . 27, 36, 38 Midland Counties Ben«fit Building Society ..... Midland Land Corporation Midland Railway Co., Doolan v. Midland Wagon Co., Northampton Coal Co. V. .... Mid-Wales Hotel Co. Mid- Wales Railway Co., Bateman ». Migotti's Case . . .46, 47, 49 Milan Tramways Co., E. p. Thcys 358, 368 Miles' Case. Exhall Mining Co. . 57 Miles' Claim. Adansonia Fibre Co. 248, 433 Miles V. Bough . . .192, 449 ». New Zealand Co. . . 87, 461 Miles Platting Building Society, Wilson o. 177 Milford Docks Co. Lister's Case 220, 224, 337 Military Tailoring Co. . . . 250 Miller, E.p 385 , Crabb ». . . . 136 , Watson o. . . . . 138 Miller's Case (3 Ch. D. 661 : 5 Ch. Div. 70) . . 51, 53, 56, 70, 407, 560 Miller's Case (3 Ch. Div. 391) . . 384 Miller's Dale Co. . . . . 184 Mills I). Northern Railway of Buenos 434 265 5 195 226 179 Ayres Co. Milwood Colliery Co. Minima Organ Co. Minshall's Case Mitcalle, SulKvan r. Mitchell's Case (9 Eq. 363) (5 Ch. 400) 512, 513, 516, 518 . 236 265, 319, 336 . 282 571, 572, 573, 574 43, 44, 92 201, 689 Alex. (4 App. Cas. 548) 117, 131, 132, 343 , Nelson (4 App. Cas. 624) 117,131, 132, 541 — Claim (6 Ch. 822) . . .371 Mitchell Ambergate Railway Co. t). . 446 V. Glasgow Bank . . 343 641 , Hull Forge Co., Se . . . ' 245 Mixer's Case . . . , .116 Moffatt V. Farquhar . . 27, 38 484 Monkland Iron Co., Elphinstone u. . ' 356 Montagu, Hendricks ». . . 24 25 MonteKore, Ramsgate Hotel Co. v. 57' 76 Montrotier Asphalte Co. . . . 340 Moor, E.p., Florence Land Co. Re 168, 169 TABLE OF CASES. XXXI PAGE Moor V. Anglo-Italian Bank 168, 169, 224, 250, 366 Moore and De La Torre's Case . 76, 127, 436 Moore v. Rawlins . . . 2, 3, 474 Morgan's Case (1 De G. & Sm. 750) . 41 (28 Ch. D. 620) 347, 348, 396, 519 Morgan, Nanney v. . . 45, 95, 454, 457 , Smith V 366 , Street o. . . 136, 137, 139 Moi-\er,Kp 288 Morrice v. Aylmer .... 478 Morris' Case . . 147, 149-157, 323 Morris ». Cannan .... 453 , Maxted v. . . . 136, 138 V. Morris .... 487 , Oystermonth Co. ». . . 487 — — , Rennie v. . . . 138, 139 Morriston Fuel Co 234 Morton, E.p. (17 W. R. 606) . . 203 , Martin's Anchor Co. v. . . 200 Morton's Case (16 Ect- 104) . 70, 457 Moscow Gas Co. v. International Financial Society. . . . 195 Mosely Green Coal Co. (4 D. J. & S. 756) 357 Mosley's Case .... 331 Moss, E.p 74 V. Syers .... 182 Mott and Turner, E. p. . . . 482 Mount, Aylesbury Railway Co. v. 451, 459 Mowatt V. Castle _Stee] Co. 172, 363, 564 Moye V, Sparrow .... 172 Mozley v. Alston .... 486 Mudford's Claim . . . 123, 563 Mudge «. Rowan .... 200 Muggeridge, i?e, Muggeridge v. Sharp 199, 204, 205, 435, 440 , New Brunswick and Canada Rail- way Co. xj. . . . 107, 109, 110 Muir's Case ..... 86 Muir V. Glasgow Bank 7, 71, 80, 86, 87, 103, 115 Muirhead,^.^). . . • 279, 690 MmidB.j, E.p. .... 312 Municipal Society v. Richards . . 412 Munn, Ashworth v. ... 26 Munns v. Burn .... 312 Munster's Case . . .27,108,115 Munster v. Cammell Co. . . . 507 Munt'sCase .... 41 Muntz' Metal Co. . . . 537, 645 Murch. West of England Bank v. . 78 Murgatroyd's (John) Case . . 78 (Joshua) Case . 26,28, 34, 35,38^ 131 Murphy, Sheppard v, Murray v. Bush V. Scott . , Wills V. Murrough's Case Murton v. Bigham 282, 451 . 136 27, 29, 193, 314, 456 . 22, 169, 172, 173 . 481, 483 . 84 145, 147 Musgrave, Alexandria Water Co. v. . 159 , E. p., Be Orerend, Gumey, & Co. 301 Musgrave and Hart's Case 100, 132, 133, 136, 139, 282, 283 Mushet's Case . . • 35, 36 Mutter ». Eastern and Midlands Rail- Mutual Society (18 Ch.D. 530) . FAGB . 282 (22 Ch. Div. 714) . 272, 273 (24 Ch. D. 425, n.) . . 175 , Grim wade v. . 128, 498 Myers, Drew v. . . . . 388 V. Perigall . 26 Mysore Gold Co. (42 Ch. D. 535) . 396 Mysore Reefs Co. . . 270 N. NaCupai Co. . . , Znocani v. Nanney v. Morgan . Nant-y-Glo Co. v. Grave Nash, E. p. -. 227 392, 394 45, 95, 454, 457 406, 410 40 Ilfracombe Railway Co. Nassau Phosphate Co. Natal, &c., Co. Natal Investment Co. , Wilson V. , Wilson's Case ;. . 55 . 6,21 209, 215, 218 . 361 . 256. 258 . 57 way . Mutual Aid Society 96 173, 176 Nathan Newman & Co. " . 309, 687, 697 National Arms Co. (W. N. 1887, 31) . 545 (28 Ch. Div. 474) . . .243 National Bank's Case . 344, 345, 675 National Bank : — , General Provident Ass. Co., Ee. 162, 165, 403 , Imperial Land Co. of Marseilles, Be . . . . 285,403,497 National Credit and Exchange Co. . 677 National Financial Corp. (14 W. R. 907) 215 National Financial Co. (15 W. R. 499) 347 , E.p. Oriental Commercial Bank 89, 349 National Funds Co. (W. N. 1876, 239) . 650 (4 Ch. Div. 305) . . 311,313 (25W. R. 23). . . .255 (10 Ch. D. 118) 118, 143,400,405, 499, 513, 516, 542 National Live Stock Insurance Co. 216, 217 ■ , Hodgkinson u. . . . 541 National Provincial Bank of England, Be Etna Insurance Co. . . . 314 National Provincial Life Assurance Soc. 373 . , Fleming's Case . 373, 375, 879 , Kettle's Case . . . .372 National Savings Bank Ass. 143, 198, ?25, 252, 293 Nation's Case . . . 36,37,131,282 Native Iron Ore Co. . . 162, 163 Natnsch v. Irving . . 181, 448, 486 Naylor, Benzon, & Co., Mersey Steel Co. V. . 272, 306, 345, 367, 358, 367 Neath Building Society ». Luce . . 173 Neath Harbour Co 345 Needham's Case . . 144, 146, 477 Needham v. Rivers Protection Co. 233, 327 Neilgherry Coffee Co., Inchbald v. . 351 Neilson v. James .... 640 Nelson, E.p 238 Nelson's Case . . 72, 122, 134, 135, 283 Ness V. Angas . . . .78 Neuchatel Asphalte Co., ^.p. . . 211 , Lambert ». . . . 516,517 , Lee V. (41 Ch. Div. 1) 612, 513, 514, 517,542,561 XXXll TABLE OF CASES. Nevill, United Kingdom Association v. 527 Nevill's Case .... 145, 388 Newbigging, Adam v. . . ■ 103 New Brunswiolc and Canada Railway Co. :— V, Boore .... 50 1). Conybeare . .105, 106, 107, 109 V. Muggeridge . 107, 109, 110 , Wickham v. . . . . 168 New Callao (W. N. 1882, 60) . . 678 (22 Cii. D. 484) . . 252, 312 Newcastle Abattoirs Co., Holmes v. . 486, 542, 543 Newcastle-upon-Tyne Machinists Co. . 674 New Chile Gold Co. (38 Ch. D. 475) 543, 560 (W. N. 1890) . . . .476 New City Club Co. . . 240, 396, 461 New Clydach Co 168 New Eberhardt Co., S. p. Menzies . 563 New Flagstaff Co 391 New Gas Co. . 214, 226, 229, 250, 252, 675 New Gas Generator Co. . 214, 215, 261 New Guston Co., "Weston v. . . 394 Newhaven Local Board o. Newhaven School Board . . 193, 476, 503 New London and Brazilian Bank v. Brocklebank ... 87, 461 New Quebrada Co., Pontifex's Case . 140 New Sombrero Co. v. Erlanger 404, 446, 509, 575, 577 New Westminster Brewery Co. ». Hannah 411 Newitt, U.p 330 New North Staffordshire Coal Co. . 242 New York Exchange 209, 210, 332, 339 New Zealand Alford Estate Co., Miles v. 87, 461 New Zealand Banking Corp. : — , Blakely Ordnance Co., Se 360, 361 , Hankey, F. p. . . 258, 388 , Sewell'sCase. . . .551 New Zealand Kapanga Co., E. p. Thomas 565 New Zealand Land Co., Elder v. 23, 109 New Zealand Quartz Co. . . 216, 225 Newbold, Arkwright v. 107, 108, 109, 125, 129, 573, 579 Newby v. Van Oppen . , 218, 678 Newry and Enniskillen Railway Co. v. Edmunds 448 Newton, ^.p 171 , Heatley v 311 Newtownards Gas Co., Stephenson, E. p. 554 Nicholl V. Eberhardt Co. . . 394, 584 NichoUs, Ernest v. . . . 503, 505 Nichols' Case (W. N. 1867, 77) . . Ill (Alb. Arb.) .... 40 Nicholson, jB. p 301 , Calcutta Jute Co. v. . , 159 . , Ccsina Co. v. , . . . 159 Nickalls, Dent J). . . 135,138 V. Eaton . . . 138 1). Furneaux . . . 44, 136 , Merry v. . 136, 137, 138, 139 Nickoll's Case . . . 49, 71 Nicol's Case 37, 41, 104, 114, 130, 494, 522 , Se Florence Land Co : See Tufnell's Case. Nicolls, Burkinshaw v. 42, 70, 83, 93, 31], 553, 657, 558, 561 Nioll's Case 114 PAGE Niemann v. Niemann . . 78, 81 Niger Merchants Co. v. Capper . .211 Nokes' Case . . . . 47, 91 North American Colonial Ass. v, Bentley 461, 459 North Australian Territory Co. 302, 304 North Brazilian Sugar Factories (W. N. 1887) 227 (37 Ch. Div. 83 . . . 347 North British Australasian Co., Swan v, 453 North British Building Society, Carrick*s Case . . . 117, 175, 176, 343 , Tosh V 176 North Carolina Estate Co. . . 255 North Central Wagon Co. v. Manchester Railway Co l66 North Devon Railway Co., Harris v. . 469, 474, 496 North Kent Railway Extension . . 432 North Molton Mining Co. 222, 329, 330 North and South Wales Bank . . 162 North Staffordshire Railway Co., Barton v. . . . 82, 94, 456, 463 He Traders' Carrying Co. . 234, 239, 240, 396 North Stafford Steel Co. o. Ward 23, 447 North Wales Slate Supply Co. . . 252 North West Transportation Co. v. Beatty ... 21, 484, 485 North Wheal Exmouth Mining Co. . 302 North Woolwich Subway Co. v. Pym . 54 North Yorkshire Iron Co. . 239, 241 Northampton Coal Co. v. Midland Wagon Co 195 Northern Assam Tea Co. . . . 267 , Higgs V. . . . 360, 361 Northern Counties Society, Christie ». 177 Northern Railway of Buenos Ayres Co., Mills V. . . 612. 513, 516, 518 Northfield Iron Co. . . 285, 350, 397 Northumberland Avenue Hotel Co. . 525 Northumberland Building Society, Rosen- berg V 22, 177 Northumberland and Durham District Banking Co. : — (2 De G. & J. 367) . 22, 262, 332 (2 De G. & J. 508) . . .265 , Totty, £.p 388 Norton, B. p., Se Cardiff Coal Co. . 84 , Cardiff Coal Co. v. . 84, 219, 285, 289 V. Florence Land Co. . . 168 Norton Iron Co. (47 L. J. (Ch.) 9) . 228 (26W. R. 63) . . 350,367 Norwegian, &c.. Iron Co. . . . 214 Norwich Building Society . 175, 293 Norwich Equitable Co. . 304, 305* 696 Norwich Provident Society, Bath's Case ■— (8 Ch. Div. 334) . 45, 80, 143, 144, 145, 165, 386, 473 (11 Ch. D. 386 ; 13 Ch. Div. 693) Ti , 1*3, 144 , Hesketh's Case , . , 144 Norwich Yarn Co. (12 Beav. 366) 208, 225, 262 (13 Beav. 426) . . .314 Notts Water Gas Co., British Water Gas Syndicate u. . . , , 319 Nowgong Tea Co. . . ', 300 304 TABLE OF CASES. XXXUl Nugee, E. p. . PAGE . 288 Nanneley, E. p. . . 248 Nuthall, Giles v. . . 266 Nuttall's Case . 359 Nuttall, Lee v. . 366 0. Oakbank Oil Co. v. Crum . . .511 Oak Pits Colliery Co. . . 289, 241 Oakes and Peek, E. p. (3 Eq. 576) 282, 697 Oakes, E. p. (16 L. T. 148) . . 290 V. Turquand . 21, 104, 107, 111, 112, 115, 116, 117, 118, 122, 153, 323 Oakwell Collieries Co. , . . 285 Ocean Association v, Leslie , . 527 O'Connor, Cowan v. ... 63 Odessa Waterworks Co., Wood t). . 511 Official Keceiver, Tailby v. . . 169 Ogilvie 0. Curria . Ill, 114, 125, 128 Okell V. Charles . . . .178 Olathe Silver Mining Co. . . 210, 213 Old Talargooh Co., Hall v. . 123, 256 O'Malley Be, Crown Bank, E. p. . 675 Onslow's Case .... 52 OpSra Limited .... 235 Oporto Mining Co.'s Case . . . 368 Oppenheimer o. British and Foreign Bank 356 Orgill's Case . . . 274, 407, 504 Oriental Bank (28 Ch. D. 643) 239, 323, 367 , E.p. Guillemin (28 Ch. D. 634) 344, 675 , MacDowall's Case . . . 350 Oriental Commercial Bank 249, 263, 334, 335, 339 , Barge's Case ... 83, 346 , European Bank : — , ^.^. (5Ch. 358) . . 502 , Se (7 Ch. 99) . 272, 364 National Financial Co., Be 89, 349 Oriental Corporation, E. p. (4 Ch. D. 33) 370 Oriental Hotels Co., Perry «. . 256, 266, 268, 297 Oriental Inland Steam Co. v. Briggs 68 Scinde Railway Co., E. p. . . 255 Ormerod's Case: — . (5 Eq. 110) . . 69, 198, 231, 457 (37 L. T. 244) . . 407, 410 Ornamental Pyrographic Co. 0. Brown 447 Orpen's Case. ... 31, 459 Orrell Colliery . . . .342 Ortigosa v. Brown, Janson, & Co. . 453 Ottoman Co. ..... 305 Outlay Assurance Society . 187, 598 Overend, Gurney, & Co., Barrow's Case 199 ». Gibb . . . 128,404,498 V. Gurney .... 404 , Land Credit Co. of Ireland, Be . 179 , Lintott, E.p. . . 199, 452 , Musgrave, E.p. . . . 301 , Oakes, E.p 290 , Oakes and Peek, E. p. . 282, 697 Owen's Patent Wheel Co. 250, 253, 335, 336, 337, 339, 341, 344, 675 Oxford Building Co. . . 267,330 Oxford Building Society 405, 407, 496, 499, 500, 513, 516 Oxford and Canterbury Hall Co. . 364 Oystermouth Co. i); Morris . , 487 Pacific Steam Navigation Co. ii. Gj-ibbs 196 Padstow Association 2, 4, 5, 251, 289, 313, 434 37, Page, E.p. . Paget, Griffith, ». . Pagin and Gill's Case Pahlen's Case Paige's Case . Paine, Cruse v. , Heritage v. tj. Hutchinson \ and Layton, E. p, , Mdxted V. (1) , (2) . Painter's Case Painter v. Ford Palmer's Case Palmer, E, p. Panama Mail Co. . Panmure, E. p. Panonia Leather Cloth Co. Paraguassu Tramway Co., Wilson's Offer 387 Parbury's Case : — (19 W. R. 584) (3 D. F. & J. 80) Paris Skating Rink Co. , Spiller V. Park Gate Wagon Co. Parker, E. p. , ». Lewis . V. McKenna . Parlby's Case Parlby, Price v. Parry's Case, Be Great Ship Co, . 485 294, 295, 323, 394 408, 555, 558 . 465 . 115 8, 89, 90, 139 90, 138 133, 136, 343 . 272, 305 . 138 . 137, 139 . 469 . 474 45, 50 . 352, 464 167, 168 . 75 338, 677, 678 . 109 . 201 223, 480 525, 563 278, 412 28, 32, 98, 101, 102 128, 496, 497 . 128, 496 . 359 . 359 235, 236, 245 43, 102 40, 282 105, 495 . 129 . 225 . 260 214, 225 Parson's Case , Part's Case .... Partridge v. Albert Life Ass. Co. Patchett, Gregory v. Patent Artificial Stone Co. Patent Automatic Knitting Co. . Patent Bread Machinery Co. ' , Valpy & Chaplin, E.p. 161, 162, 163 Patent Cocoa Fibre Co. 186, 226, 227, 229 Patent Davit and Boat Building Co., Ranken's Case .... 50 Patent File Co., Birmingham Banking Co., E.p 165, 398 , White, E. p. . 45, 75, 122, 135 Patent Floor Cloth Co. . 252, 338, 674 i , Dean and Gilbert's Claim . 352 Patent Invert Sugar Co. . . 17, 544 Patent Ivory Co., Howard v. 165, 168, 172, 409, 525 Patent Lionite Co., Thomas v. . 233, 237, 239, 320, 335, 336, 367, 396 Patent Screwed Boot and Shoe Co. . 679 Patent Steam Engine Co. . . 224 Patent Ventilating Granary Co. 545, 546, 547 Paterson's Case .... 35 X\X1V TABLE OF CASES. PAGE . 340 . 397 . 120 226 . 312 33 244, 257 . 177 . 387 Peel's Case Pell's Case Pelly, E. p. Paul, E. p.. Re European Bauk Pavy's Felted Fabric Co. . Pawle's Case . Paxton V. Bell Payne, Esdaile v. Payne's Case . Peace (Joseph) & Co. Pearce, Sibun v. Peai-sou's Case (7 Ch. 309) -^- (4 Ch. D. 222 ; 5 Ch. Difr. 336) . 406, 407, 410, 567 Pearson, E. p. (3 Ch. 44-3) . 311, 344 Peckham Tramways Co. j . . 227 Peek's Case ..... 69 Peek, Derry V. 110, 124, 125; 126, 127, 636 . ■ V. Derry. .104, 124, 126, 128, l29 V. Gurney 104, 107, 125, 126, 129, 130, 404 . 21, 49, 111, 113 47, 48 Pellatt's Case 49, 56, 58, 59, 63, 65, 66, 71, 83, 449, 553 ,_.,.. . . 400,401,408,411 ■, Madrid Bdnt *. 243, 407, 496, 504 Pen-allt Silver Lead Mining Co. . 236 Pender v. Fox .... 136 V. Lushington 186, 480, 484, 485, 486, 487 Penhale and Lomax, &c., Co. 140, 141, 222 Peninsdlar Banking Co. . . . 245 Peninsular Co. o. Fleming 16, 19, 182, l96 PenkiTil v. Cionaell . . . .178 Penney, E. p. . . 36, 37, 101, 1»2 Penrose *. Martyr . . . .161 Pentelow's Case . . . 57, 69 Penysyflog Iron Co. . . . 301, 327 Pen-y-Van CoUieiry Co. . 224, 337 People's Caf^ Co 549 People's Garden Co 234 , Kingchurch v. . , , 233 Pepper, E. p., Se Life Ass. Treasury . 279 Peppercorn v. Clench . . 138, 139 Percival, E. p. . . 244, 251, 296 Percy Mining Co. . . . 226 Perigall, Myers i. . ^ . . .26 Perkins, JJe, Mexican iliriing Co. 87, 461 Perkins Beach do 235 Perrett's Case . . .65, 72, 114 Perry «. BSrnett .... 640 V. Oriental Hotels Co. 256, 266, 268, 297 Perry's Case .... 500, 501 Peruvian Railways Co. . . 218, 525 ■ , Henderson v. . . . . 254 1). Thames arid Mersey, &c., Co. . 180, 502 Petersburg Gas Co. : — — (W. N. 1874, 196) . . 213, 263 (33 L. T. 637) . 224, 229, 262, 324 Petroleum Co. . . 338, 676, 677 Pharmaceutical Society V. London Sup- ply Association Phillips' Case I'hillips, Se, E. p. Kiveton Coal Co , Craig J). t). Davios , Harben v. V. Homfrey 7 35 313 311, 312, 574 5 186, 193, 480, 481, 482, 487, 489, 508, 510 . 404 Phoenix Bessemer Steel Co. (32 L. T. 854) . . . . 8, 15, 167, 181 (33 L. T. 403) . . .365 Re, E. p. Carnforth Co. . . 218 Phosphate of Lime Co. : — , Austin's Case. . 447,475,476 V. Green . . 14, 466, 472, 540 Phosphate Sewage Co. «. Hartmont 405, 577 Photographic Artists Association . 195 Picker v. London and Comity Bank . 363 Pickering's Claim .... 496 Pickering, ^. p 201 V. Il&acombe Hallway Co. . 167 V. Stephenson . 448, 493, 497, 498 Pidcock, Waterford, &c.. Railway Co. v. 63, 68 Pierce v, Jersey Waterworks Co. 23, 447 Piercy ». Roberts .... 254 Pilsen Joel Co 549 , Taylor v. ... 17 Pinkett v. Wriglit . . 27, 37, 92, 456 Pinto Leite Co 332 Pinto Silver Mining Co. . . . 331 Piper, Hooke *. . . 296, 332 Pitchford r>. Davis ....'• 447 Pitman, E. p., Hamilton's Windsor Ironworks .... 165, 169 Pitts V. La Fontaine . . 274, 275 Planet Benefit Building Society 208, 211, 230, 261, 434 Plas Kynaston Tube Co. . . . 560 P)as-yn-Mhowys Coal Co. . . 236 Plimsoll's Case .... 60 Plumstead Water Co : — (2 D. F. & J. 20) . . 290, 313 *. Davis (28 Beav. 545) . 290 Harding, E. p. . . . 252 Pollock, Middleton v., E. p. Nugee . 288 Pontifex's Case .... 140 Pontypridd Tramways Co. . . 258 Pool's Case ..... 564 Poole's Case . . 399, 448, 450, 453, 497 Poole's Executors, E. p. . 259, 391, 395 Poole Firebrick Co. . . . 245, 327 Poole V. Middleton . . 27, 36, 38 Pooley, Athenaeum Life Assurance So- ciety V 359, 362 Pooley Hall Colliery Cfo. . . 165, 240 Poppleton, E. p., Thomas, Se . . 4, 5 Portal V. Emmens . . 45, 46, 54, 456 Porto Alegre Railway Co., Melhado v. 492, 525, 559 Port Philip Mining Co., Shaw v. 93, 105 Port Philip Co., Postlethwaite v. 392, 393, 394 Portsmouth Banking Co., Helby's and Others' Cases .... 520 Portuguese Copper Mines, Badman's and Bosanquet's Cases ... 57 Portuguese Copper Mines, Steele's Case 57, 509 Positive Assurance Co. . . 224, 580 , Eley v.. . . 213, 525, 559 Postlethwaite v. Port Philip Co. 392, 393, 394 Potter and Brown's Case . . . 558 Potter t>. Sanders . . .61 , Wigfield V. . . . .3 Pound, Sou, and Hutchins . 256, 266 TABLE OP OASES. XXXV PAGE 44 . 378 . 116 . 40 382, 383 437 Povah ». Walker Power's Case . Powis V. Harding Pownall's Case Pratt's Case . Preece and Evans' Case Premchand, Bank of Hindustan v, . 265 Prescott, Cnmming v. . . . 56 Preston's Claim . . . .407 Preston i). Grand Collier Dock Co. . 448 Preston and Henry, JE. p. . . 64 Price, London and N. W. Railway Co. u. 13 V. Parlby . . .359 , ^. p., Me Lankester . . 359 Price's Candle Co., Hampsbn v. . 491, 493 Prichard's Claim . . . .686 Prince v. Prince .... 441 Prince of Wales Slate Quarry Co. 337, 339 Princess of Eeuss v. Bos 8, 22, 214, 219, 457 Printing and Numerical Co. . 238, 242, 366, 367 Pritchard's Case . 525, 553, 559, 564 Professional Commercial, &c.. Building Society . 208, 230, 262, 263, 434 Professional Life Assurance Co. . 297, 437 Progress Assurance Co., B^tes; ^. p. , LiTei-pool Co., i!. p. Propert, Weeks *. . Proprietors of the Basingstoke Canal Prosper United Miniiig Cb., Ji. p. Palmer ... Prosser V. Edmonds . Provision Merchants' Co. . Public Life Assurance Society Pugh, Banting *. Pugh and Sharman's Case Pulbrook, H. p. : — (2 D. J. & S. 348) . (4 Ch. 627) . V. Eichmotid Mining Co. Purdey's Case Pure Spirit Co. V. Fowler Pyle Works, /ft re . 357 241 501 432 352, 464 . 411 . 293 . 441 . 512 75, 78, 305 . 329 . 696 53, 56, 87, 487, 510 70, 282 . 195 . 167 Pym, North Woolwich Subway Co. ». 54 Q. . 574 . 250 . 676 . 212 543, 544 Qnartermaine, Thomas v. Quartz Hill Co. ' . V. Beall . V. Eyre . Quebrada Company . Queen's Average Association, X p. Lynes ..... 5 Queen's Benefit Building Society 198, 229, 248, 434 Queensland Mercantile Co. . . 255 E. Eadley and Bramall, Be . . 278, 324 Railway Accident Mutual Assurance Co. 402 Railway Finance Co. ; — ■ (14 W. E. 754) . . .246 (14 W. E. 785) . . .250 . (14WvE. 956) . . .266 Railway Printing Co., Brocklehurst v. 170 Railway Sleepers Supply Co. . .184 Railway Steel Co., Se Taylor 236, 238, 366 , Be Williams . . . .238 Railway Time Tables Publishing Co., Hx parte Sandys . . 70, 7l, 135, 140, 557, 662 Ramsay's Case Ch. Div. 388) 142, 426, 442 Ramsey's Case . . . 255, 309 Eamsgate Hotel Co. *. Goldsmid . 76 *. Montefiore . ; . 57, 76 Eamskill *. Edwards 404, 411, 499, 500, 501, 502 Eamwell's Case . . . 399, 477 Eance's Case . 84, 327, 403, 405, 450j 498, 499, 513 Ranelaugh (Lord) *. Hayes . . 89 Eanken's Case .... 50 Rankin «. Hop and Malt Exchange Co. 67 Raper, Gray ». Easchj E. p. Eashdall 0. Ford Eawlings, £J. p. Eawlins, Moore, V. . ■ , Sotithainpton, &c. Co. ». V. Wickham . Eay, Attorney-General *. . Eead V. Joamson Eead, Whitehaven Banking Co, u. Read's Case (15 W. E. 631) 178, 254, 439 228, 254, 673 . 501 . 323 . 2, 3, 474 Steamboat . 193 103, 436, 472 . 110 170, 171 . 172 . 131 (Eur. Arb.) 26, 28, 34, 35, 282, 456 .Eead v. Anderson .... 640 Real Advance Co., Carritt v. . ,94 Reaveley's Case .... 73 Eedgrave 41. Htrd . . 110,111,127 Eeed, Laing v 172 Eeese Eiver Silver Milling Co. : — (W, N. 1867, 139) . , .497 , Smith's Case 104, 110, 113, 117, 16l - — ■ V. Sinith 45, lOO, 108, 110, 116, 119, 130, 281 Reeves *. Bainbridge . , 66, 87 Regent's Canal Iron Co. (W.N. 1 867, 79) 509 (3 Ch. Div. 43) . , . 171 Grissell, E.p. . 278, 297, 332 Regent United Service Stoi:es (8 Ch. Div. 75) 676 (8 Ch. Div. 616) . . .240 (38 L. T. 130) . . .239 , Bentley's Case . , 274, 556 Eeg. V. Arnaud , . , . 8 ». Carnatic Railway Co. . . 79 V. D'Oyley . . . , 483, 484 V. Groveriiment Stock liivestment Co 48i f). Inns of Court Hotel Co. . . 459 V. Liverpool, &c.. Railway Co. 37, 96 ». Mariquita Mining Co. . .619 V. Registrar of Friendly Societies 4, 25 V. Registrar of Joint Stock Com- panies ..... 365 V. St, Pancras . . 483, 484 V. Shropshire Union Co. , 92, 94 V. Whitmarsh . . . 2, 3 . V. Wilts and Berks Canal Navi- gation Co. ..... 96 V. Wimbledon Local Board 483, 484 C 2 XXXVl TABLE OP CASES. . 350 42 61,62 138, 139 . 74 93, 94, 456 Registrar of Friendly Societies, Reg. ti. 4, 25 Registi'ar of Joint Stock Companies, Reg. ...... . 365 Reid j>. Explosives Co. Reid's Case Reidpatli's Case Rennie v. Morris Rensburg, U. p. RentoD, Johnston v. Keuss (Princess of) v. Bos 8, 22, 214, 219, 457 Rex *. Wilts and Berks Calnal Naviga- tion Co 96 Reynolds v. Coleman ... 39 Rhodes, E. p 79 «. Foi-wood . . . 351, 515 Rhydydefcd Colliery Co. . . .211 Rica Gold Washing Co. . . 225, 229 Richards v. Home Assurance Association 61 Richards, Municipal Sotie'ty, ». . ; 412 , Southampton Dock Co. v. 192, 446, 449 tliohards & Co. . 236, 238, 366, 583 Richardson, Elliott v. . . 448, 484 V. English Spelter Co. . . 515 B.Williamson. . . 172,501 Richardson's Case . . . 43, 44, 75 Riche V. Ashbury Railway Carriage Co. 13, 14, 15, 164, 163, 181, 466, 469, 472, 494, 541 Eichens, Hire Purchase Co. -a. . 278, 321 Richmond's Cise ... 73, 469 Richmond Mining Co., Pnlbrook o. 53, 56, 87, 487, 510 fiidsdale's Lamp Co., Eden *. Rio Grande Steamship Co. Rippon, E. p.. Re Andrew Risca Coal and Iron Co. . , Hookey, E. p. Ritso's Case . . . _.,_.,. JRivaz' Case, Be Western Life Assurance Society . . . 376, 377, 381 River Dee Co., Wenlocke. (36 Ch. Div. 674, n.) 14, 15, 20, 164, 165, 166, 174, 483 (10 App. Cas. 354) 14, 164, 165, 166 (36 Ch. D. 674 ; 38 Ch. Div. 534) 22, 165 (19 Q. B. Div. 155). . 174, 175 406, 410 257 476 385 311 57, 60, 61, 76 River Plate Meat Co, Rivers Protection Co., Needham Rivington's Case Eobart*s Goodwin v. Roberts, E. p.. Brown, Bayley, and Dixon . . . . 242, 256 V. Crowe . . . 145, 388 , Piercy v 254 , West of England Bank . . 203 Robertson, X p. .... 310 , South Western Loan Co. «. , 88 Robinson's Executors* Case . . 19 Robinson's Case . . . 59, 275 Robinson v. Charteted Bank . , 36 , Todd o 503 , Whitaker v 255 Robson, Buck v. . . 19, 198, 446 Rochdale Property Cb. , , 280, 341 Rockall Fishery Co. ... 247 Rogers v. Ingham .... 405 Rogers' Case (3 Ch. 633) ... 64 (25L. T.406) ... 33 586 233, 327 41 363 Rogerson, Anglo-Danubian, &c., Co. v. 196 Rolls, Glasier v. . . . 127, 128 , Tate V 204 Rolfs (Lady) Case . . . .205 Rolt, English Channel Steamship Co. v. 165, 166 , Hopkinson v. ... 87 Romford Canal Co. 93, 94, 360, 361, 363, 502 Ronaldson, Callao Bis Co. v. . . 392 Eoney, Sir C. P., E.p. . . . 192 Rooper v. East Norfolk Tramway Co. 23, 114 Roots V. Williamson . . 95, 454 Rosaz : See De Rosaz. Rose V. Gardden Lodge Co. 234, 245, 246 , Thames Haven Dock Co. «. 446, 509 Rosenberg v. Northumberland Building Soc. Ross ». Army and Navy Hotel Co. V. Estates Investment Co, 22, 177 165, 170, 171 107, 108, 120, 130 Eotherham Alum Co. 213, 409, 492, 525, 559 Rotherhithc, &c.. Industrial Society . 433 Rowan, Mudge v. . . . . 200 Royal Bank of Australia, E.p. Forest 370 Royal Bank of India's Case 7, 73, 80, 81, 455, 503 Royal British B^nk, DanieU v. , . 116 , Henderson v. . . 116, 118 V. Turquand . . 23, 42, 166, 502 Royal Hotel Co. of Great Yarmouth . 403 Royal Insurance Co., Taunton v. . 525 Royal Naval Society's Indemnity Case 298 Royal Victoria Palace Theatre Syndicate 433 Royle, E.p. 296 Rudge V. Bowman .... 344 Rudow V. Great Britain Mutual Society 233 237, 440 Rugby (Governing Body of), Hayman v. 508 Rule *. Jewell . . . 465, 476 Russell, J7.p 485 , Bowden e. . . . . 675 , Brownlie o. . , . . 176 , Stray r. .... 39 V. Wakefield Waterworks Co. . 486 Russell's Executors' Case . . . 205 Rutherfurd's Case . 117, 131, 132, 343 Rye's Case . . , , , 104 Ryhope Coal Co. o. Fryer . , 20, 159 S. Sabloni^re Hotel Co. . , . 245 Sadler's Case (3 De G. & Sm. 36) . 78 (Alb. Arb.) . . . .142 Sahlgreen and Carrall's Case . 56, 59 St. Cuthbert Lead Smelting Co. : — (35Beav.384) . . 256,258 (W. N. 1866, 154) . . .258 St. David's Gold Mining Co. . 336, 679 St. George's Benefit Building Society . 434 St. George's Steam Packet Co., E. p. Doylo 77 St. James' Bank. Colville's Case . 540 St. James' Club ... 3, 435 St. NazaireCo. . . . 252,266 St. Pancras, Reg. v. . . . 483, 484 TABLE OF CASES. XXXVll St. Thomas' Dock Co. PASE . 209, 210, 247, 26i, 263 Salisbury v. Metropolitan Railway Co. 499 Salmon v. Isaac .... 676 Sanders' Case 39 Sanders, Courtanld ». . . . 178 , Potter 61 Sanderson's Case , . . .313 Sanderson's Patents Association 209, 215, 261 Sand's Case .... 83,135 Sandys, E. p. 70, 71, 135, 140, 557, 562 Sangster, Lee o. . . . . 254 Sanitary Carbon Co. . . . 479 Sankey Brook Coal Co. : — (9 Eq. 721) . . . .167 (10 Eq. 381) . . . .167 r. Marsh .... 288 , Radley and Bramall, Re . 278, 324 Sargent, E. p. 74, 100, 139, 453, 454, 456 Sargood's Claim .... 370 Sassoon's Case ... 42, 134 Saunders' Case ... 56, 88 Savin, Be 368 Scadding ». Lorant . 446, 483, 503 Scarborough Cliff Hotel Co., Button v. 182 Scarisbrick's Case .... 79 Schansohieff Electric Syndicate . . 260 Scholefield's Case . . . .402 Scholey v. Central Ry. Co. of Venezuela 114 Schooner Pond Coal Co. . . .331 Schroder's Case . . 47, 48, 70, 289 Schutz, Bulkeley v. . . 4, 8, 219 Scinde, &c., Bank Corporation ; — ■ (W- N. 1867, 41 ; 15 L. T. 602) 324, 388 (6 Ch. 53, n.) . . . . 293 Scinde Railway Co., E. p. , . 255 , Sheppard v. , . . . 295 Scotch Granite Co. ... 330 Scott V. Lord Ebury . . . 525 , Murray v. . . 22, 169, 172, 173 Scott, E. p., London Paper Mills . 302 Scott's Case .... 382, 383 Scottish ^Economic Society • • 643 Scottish Insurance Co., Jones r. .159 , Watkins v 190 Scottish Life Assurance . . 643, 670 Scottish Pacific Co. ... 309 Scottish Petroleum Co. 23, 108, 114, 116, 120, 121, 446, 447, 503, 509 Scottish and Universal, &c.. Association, Buckridge's Case , . . 281 Sculthorpe v. Tipper ... 80 Sea Fire Assurance Co., E. p. Gwyn . 314 Sea and River Marine Insurance Co. 209, 215 Seckham, Gray c. . 272, 365 Seidler, E.p. . 226 Self-acting Sewing Machine Co. . 55 Selkirk, Sherwin v. . . 365 Service, Bateman o. . 4, 8, 219 Sewell, E.p. (13 Ch. Div. 266) . 211 Sewell's Case (2 Ch. 131) . . 551 Seymour v. Bridge . . 640 Shackleford's Case . • . 64 Shackleford, Ford, & Co. v. Danj rerfield 18,448 Sharman's Case 75,78 Sharon's Claim . . 67 PAGE Sharp B. Dawes .... 479 , Mnggevidge ». /w re Muggeridge 199, 204, 205, 435, 440 , Waterlow v 172 Sharp, Stewart, & Co. . . 545, 549 Sharpe, Kittcat V 676 Sharpley v. Louth Railway Co. 23, 109, 114 Shaw's Case ..... 64 Shaw, E. p. (18 Eq. 16) . . 98, 565 (2 Q. B. Div. 463) . ■ 101, 103, 140 V. Benson . . , 2, 4, 5 , East and West India Dock Co. v. 431 fj. Port Philip Mining Co. . 93, 105 V. Simmons .... 4 Shayler's Case, Se Western Life Assur- ance Society . . . 375, 379 Sheard, E.p. . . . 275, 330 Sheffield Building Society . 177, 436 V. Aizlewood . . . 167, 498 Sheffield and Hallamshire, &c.. Society, Se 433 , Fountain's Case . . . 424 Sheffield (Lord) v. London Joint Stock Bank .... 363, 455 Sheffield Mortgage Co. . . . 338 Sheffield Nickel Co. ». Unwin . 183, 516 Sheffield Railway Co. ». Woodcock 61, 192, 449, 452 Sheffield Waterworks Co., Bardwell v. 518 Shelley, Re, E. p. Stewart . 74, 86 Shepherd's Case ... 36, 131 Shepherd, Bowring v. . . 135, 136 , Chapman v. . . . . 344 V. Gillespie .... 135 , Leeds Estate Co. i;. 405, 499, 500, 513, 516, 522 Sheppard v. Murphy . . . 136 V. Scinde Railway Co. . . 295 Sheridan, Birmingham v, . . .38 Sheriff?). Butler . . . 79,80 Sherwin v. Selkirk .... 365 Shewell's Case (2 Ch. 387) 132, 134, 283 Shields Marine Insurance Association : — (W. N. 1867, 296) . , Lee and Moor, E. p. : — (W. N. 1867, 265, 296) (5 Eq. 368) . Ship's Case (13 W. R. 450) (13 W. R. 599) (2 D. J. & S. 544) (13 W. R. 1016) Ship ». Crosskill 252, 674 104, . 253 434, 436 . 282 . 275 112, 314 244 107, 124, 128 J Downes o. . 12, 104, 107, 108, 111, 112, 115, 314, 494 Shipman's Case . . . 39, 132 Shirrers Case . . . 350, 352 Shortridge, Bargate v. . . . 456 V. Bosanquet .... 456 Shropshire Union Co., Reg. v. . 92, 94 Sibun V. Pearce . , . .177 Sichell's Case 74, 102, 134, 274, 275, 281, 282 Siddall, Re 3 Sidney's Case . . .46, 47, 55, 490 Silber Light Co. v. Silber. . . 487 Silkstone and Dodworth Co. (17 Ch. D. 158) 239, 242 (19 Ch. Div. 118), Whitworth's Case ... 301 302, 305, 328 xxxvm TABLE OF CASES. PAGE Silkstone Co., Gartside v. . . ■ 172 , Wheatley v Is9 Silkstone Fall Co. . 185,251,314,318 Silver Valley Mines, JRe (18 Ch. Div. 472) . . . . . 110. 222 _— (21 Ch. Div. 381) . 274, 275, 277 Sinim V. Anglo-American Telegraph Co. 93, 94 Simmonds, E. p. . Simmons, Shaw V. . Simon's Reef Co. Simpson's Case (4 Ch. 184) (9 Eq. 91) . (Eur. Arb.) . Simpson, Alexander v. 1). Heaton's Steel Co. V. Westminster Palace Hotel Co. 181, 486, 525 272, 405 4 . 337 63, 66 63, 98, 102 35 . 186 63, 102 . 179 127, 573 42 Simpson's Claim Sim's Co., Capel v. . Singer's Case , Sir John Moore Mining Co. : — (W. N. 1877, 183) . . 262, 339 (W. N. 1878, 87) . . . 305 ■ (37 L. T. 242) . 273, 301, 675 (12 Ch. Div. 325) . . 329, 330 Sittingbonrne, &c., Ry. Co., Ward v. 130, 431 Sizer, Alexander v. , . . • 178 Skegness Tramways Co., E. p. Hanley 492 Skinner e. City of Loudon Marine Cor- poration .... 140, 566 Skipton ^nd Wharfdale Railway Co. . 432 Slater's C»se 28 Slater v. Darlaston Steel Co. . 582, 584 Slator's Case 354 Slee V. International Bank . . 36 Small V. Smith . . 13, 167, 525 Smallcombe's Case . . . 467 et seq. Smallcombe, Evans v. . 466, 468 et seq. Smith, Fleming, & Co.'s Case 235, 237, 272, 279, 357 Smith, Knight, & Co. : — (4 Ch. 421) . (8 Eq. 23) . (16 W. R. 1104) , Ashbury, E. p. , Gibson, JS. p. . , Weston's Case Smith, E. p.. Me Collie , Arnison . 303 . 305 . 386 . 323 . 372 27,28,232,319 . 255 104, 124, 126, 127, 128, 129, 130 . 2, 3, 4, 497 . 56, 87, 510 108, 109, 110, 125, 126, 127 Duke of Manchester , . 252 V. Anderson , Bainbridge v, V. Chadwick - V. Goldsworthy -, Lanyon v. 182 145, 425 , Liverpool Household Stores v. 212, 676 , London Monetary Co. v. . . 1 . V. Morgan .... 366 , Reese River Silver Mining Co. v. 45, 100, 108, 110, 116, 119, 130, 281 •, Small V. . . 13, 167, 525 , Sweny ...... 476 . , E. p. (1 Sim. (N.S.) 165) . 434 ■ , K p. (3 Ch. 1 25) 243, 244, 397, 686 — , B. p., lie Homer Mines . . 509 Smith's Case (4 Ch. 611). (11 Ch. Div. 579) . (Eur. Arb.) . , Reese River Co., He. Smyth's Case . Smythe's Case Snell's Case . Snell, Inderwick v. Snow's Case PAGE . 437 . 163 . 384 104, 110, 113, 117, 151 50 . 370 27, 47, 464, 475, 476 . 508 . 33 Soci^te Gdn^rale v. Tramways Union 74, 87, 502 V. Walker . . 87, 95, 453, 454 Somervail, Cree e. . . . 41,87,541 Somerville's Case .... 72 Somes V. Currie .... 293 South Barrule Slate Quarry Co. . 259 South Blackpool Hotel Co., E. p. James . . . 199, 357, 359 South Durham Brewery Co. . 8, 15, 182 South Eastern of Portugal Railway Co. : — (17 W. R. 982) . . .255 (17 W. R. 760, 809) . . 280 South Eastern Railway Co.'s Claim . 74 South Eastern Railway Co., Tomkin- son V. ..... 493 South Essex Estuary Co. . . 677 , Chorley, E. p. . . 362 , Paine and Layton, E. p. 272, 305 South Essex Gas Light Co., E. p. Stears 362, 505 South of France Pottery (36 L. T. 651) 433 . • (37 L. T. 260) . . 234, 439 South of Ireland Colliery Co. v. Waddle 569 South Kensington Stores (17 Ch. D. 161) . . . . 239, 242, 685 (W. N. 1880, 199) . . .265 South Llanharran Colliery, E. p. Jegon 515 South London Fishmarket Co. 27, 28, 31, 399, 429, 433, 435, 448, 453, 480 South London Tramways, Bamett. Hoares, & Co. o. . . . 105, 495 South Wales Atlantic Steamship Co. . 5 South Western Loan Co. v. Robertson. 88 Southall o. British Mutual Life Assur- ance Society . . 393, 420, 505 Southampton Dock Co. v, Richards . 192, • 446, 449 Southampton Imperial Hotel Co., Hunt's Claim . . . .349 Southampton, &c.. Steamboat Co. ; — V. Rawlins .... 195 , Webb, E.p 141 Sovereign Life Assurance Co. . . 647 Sovereign Life Assurance Co.'s Case . 379 Spackman's Case . . . 468 et seq. Spackman, E. p. (1 Mac. & G. 170) . 215, 221, 467 V. Evans 39, 50, 116, 133, 468 et seq., 493 522 Spargo's Case 42, 70, 83, 93, 289, 553,'554, 558 Spargo, Freehold Land Co. ». . . 195 Sparrow, Moye v. . . . .172 Spartali, ^. p 114 Spartali and Tabor, E.p. . 210, 217, 261 Spence's Case . . . 77^ 80 Spence's Co. ..... 229 TABLE OF OASES. xxxix _ PAGE Spencer's Case . . . 371^ 375 Spiller V. Paris Skating Rink Co. 525, 563 Sproule V. Bench . . . .512 Staoe & Worth's Case . . 56, 65, 73 Stainton, Walsham v. . . , 129 Stamp's Claim . . . .351 Standard Cement Co. . . , 228 Stanhope Silkstone Co. . . . 238 Stanhope's Case . 465, 468 et seq., 494 Stanley, E, p. . . . . 167 Staple of England p. Bank of England 21, 483 Stapleford Colliery Co. . . . 234 Stapleton, E. p. . . . . 275 Star and Garter Hotel Co. 229, 249, 327, 337 State Fire Ins. Co. (34 L. J. (Ch.) 436) 297 (1 H. 4t M. 457 ; 1 D. J. & S. 634) 297 , Times Assurance Co.'s Case 368, 686 Steamship Titian Co. . . . 260 Steam Stoker Co. . . . 224, 229 Stears' Case .... 362, 505 Stearic Acid Co 185 Steel Co. of Canada . . .278 Steele's Case .... 57, 509 Stephens, Se . . . . .44 Stephenson, Pickerjng v. 448, 493, 497, 498 E.p 554 Stephenson's Case .... 53 Stevens' Case ..... 359 Stevenson, E. p., Se Liverpool Trades- men's Loan Co. .... 424 Stewart and Brother . . 676 Stewart's Case : — (1 Ch. 511) . . .468 et seq. (1 Ch. 574) . 98, 99, 101, 104, 112 Stewart e. Austin . . . 124, 128 , E. p., Shelley, Se . . 74, 86 (4 D. J. & S. 543) ... 74 Stirling ». Maitland . . . 351 Stock's Case .... 52, 490 Stocken's Case . . 144, 452, 477 Stockton Iron Co. (2 Ch. D. 101) . 460 •: (10 Ch. D. 335) . . 272, 314 Stokes, General Discount Co. v. . 200 Stone, Biederman v. . , . 321 ». City and County Bank 115, 116, 123, 185, 272, 318, 321, 325, 327, 446 Storforth Lane Co 675 Story, Healey v 178 StrafFon's Executors' Case . . 456 Strand Hotel Co. . . . 257, 258 Strand Music Hall Co. . . .165 Strang, E.p. .... 203 Strange, Belfast Railwav Co. e. . . 196 Stranton Iron Co. . 27, 37, 38, 101, 102, 484, 488, 566 Strathmore v. Vane, Norcliffe's Claim . 242 Strawbridge, E. p. . . . 485, 584 Stray v. Russell . . . .39 Street v. Morgan . . 136, 137, 139 V. Union Bank of Spain . . 25 Strick V. Swansea Co. . 5, 289, 466 Stringer, E. p. (9 Q. B. Div. 436) . 459 Stringer's Case (4 Ch. 475) 84, 275, 288, 403, 404, 405, 411, 498, 513 Stuart's Trusts . . . .515 Studdert v. Grosvenor . 487, 498, 525 Sturgis Syndicate, Limited . . 226 Suburban Hotel Co. . 215, 216, 217, 218 PAGE Suche & Co 363, 365 Sugden V. Alshury .... 512 Sullivan v. Mitcalfe 571, 572, 573, 574 Sullivan's Case .... 370 Sunderland Building Society(21 Q. B. D. 349) 230 (24 Q. B. D. 394) . 117, 176, 343 Sutton, Charitable Corporation ». 492, 496, 501 , Garnett Mining Co. v. . . 424 Sutton's Hospital Case ... 15 Swan's Case .... 302, 303 Swan 1). North British Australasian Co. 453 , E.p. . , . . .101 Swansea Bank v. Thomas . . 239 Swansea Co., Strick v. . .5, 289, 466 Swansea Friendly Society, E.p. West of England Bank . . 7, 365 Swansea Society, Jones v. 168, 230, 256 Swansea Vale, &c., Railway Co., Dick- son t>. 360 Swansea Zinc Co., Tottenham ». . 266 Swedish Railway Co., Hay jo. . . 384 STjreeny, Bank of Montreal v. . .86 Sweny v. Smith .... 476 Swift's Case . . 331, 380, 331, 382 Swift B. Jewsbury . 105, 106, 495, 496 =• V. Winterbotham . 106, 495, 496 Syers, Moss v. . . . .182 Sykes v. Beadon .... 3 Sykes' Case . . 84, 398, 450, 453, 496 Sylvester, Thomas V. . . . 357 Symons' Case ... 39, 43, 320 Symous, Holmes V. . . . 137, 202 T. Tadman v. D'Epinepil . . .366 Taft V. Harrison .... 38 Tahourdin, Great Northern Railway Co. » 431 , Isle of Wight Railway Co. v. 481, 492, 507, 508 Tailby v. Official Receiver . . 169 Tait'sCase 351 Taite'sCase 114 Talbot's Case 383 Tamar, &c., Railway Co., D'Arcy v. . 509 Tambracherry Estates Co. 548, 549, 587, 725 Tasburgh, Clermont V. , . . 103 Tate V. Rolls 204 Taunton ». Royal Insurance Co. . 525 Taurine Co. . 27, 117, 138, 134, 232, 320, 335, 342, 343, 454, 456, 479, 510 Tavistock Ironworks Co. . . . 269 Tayler v. Great Indian Peninsular Rail- way Co. ..... 456 Taylor's Case (8 Ch. Div. 643) . 312, 366 Taylor, Cragg o. . . . .88 , Garrick ...... 445 V. Pilsen Joel Co. . . . 17 V. Taylor . . . 204, 206 , E. p. (W. N. 1 877, 136) . . 470 , Ambrose Lake Co. (14 Ch. Div. 390) . . 401, 408, 577, 578 , Se (8 Ch. D. 183) . . 236, 238 Tea Co., Hodson v 168 xl TABLE OP CASES. PAGE Te»gue, Howbeach Coal Co. v. 193, 446, 447, 482, 490, 503 Teasdale's Case . . 183, 465, 551 Teste's Case 373 Telegraph Construction Co. . 355, 356, 545, 547 Tennent, Chalk, Webb, & Co. v. . 689 V. Glasgow Bank . 117, 119, 343 ferrell, Gaslight ImprOTement Co. v. 398, 399, 448 ,Kp 485 Thames Haven Dock Co. v. Rose 446, 509 Thames and Mersey, &c., Co., Peruvian Railways Co. v. . . . 180, 502 Thames Mutual Club Insurance Co. . 678 Thames Plate Glass Co. v. I,and and Sea Telegraph Co. . . . 257, 258 Th^rfese & Co. . . 237, 239, 367 Theys, E. p 358, 368 Thomas' Case (13 Eq. 437) . 67, 475 Thomas, K p. (18 Eq. 17, n.) . . 565 , £e (14 Q. B. D. 379) . . 4, 5 V, Patent Lionite Co. 233, 237, 239, 320, 335, 336, 867, 396 , Se Poppleton, Rp. . . 4, 5 ». Quartermaine . . . 574 , Swansea Bank v. . . . 239 V. Sylvester .... 357 Thompson's Case .... 66 Thompson, Aylesbury Railway Co. v. 451, 459 Thorley, Crowther v. . . . 3, 4 Thorley's Cattle Food Co., Massam v. . 25 Thorn v. City Rice Mills . . .213 Thorpton, S. p. (2 Ch. 171) . 299, 343 Thornton's Case (W. N. 1875, 109) . 65 Thurso New Gas Co. . 245, 255, 397 Tilleard, Se 213 Times Assurance Co.'s Case (2 H. & M. 722) 368, 686 Times Fire Assurance Co. . . 197, 225 Times Life Assurance Co. : — (9 Eq. 382) . 211, 226, 250, 251 (5 Ch. 381) . 331, 374, 375 , -S. p. Nunneley . 248 Tipper, Soulthorpe ji. . 80 Titterton u. Cooper . 242 Todd, Kipling v. . 46, 47, 54 ' V. Robinson . 503 Tomkinson v. South Eastern Railway Co. 493 Tooth's Case . . . . 46, 47 Topham, Duncan v. , . . .61 V. Greenside Co. . . 169, 170 Torquay Bath Co. . . 319, 429, 430 Torrington v. Lowe .... 136 Tosh !). North British Society . .176 Tothill's Case. . . .52, 56, 192 Tottenham v. Swansea Zinc Co. . . 266 Totterdell ». Fareham Blue Brick Co. 502, 509, 510, 569 Totty, E.p 388 Touche V. Metropolitan Railway Wnre- -housing Co. ... 213, 525 Towne v. London Steamship Co.. . 190 Townsend's Case .... 63 Trade Auxiliary Co. o. Vickers . . 510 Traders North Staffs. Co. 234, 239, 240, 396 Trades Bank Co. . . . . 675 Traill v. Baring .... 108 PAGB Tramway Wheel Co. . . 334, 339 Tramways Union, Socidt^ G^nerale v. 74, 87, 502 Trask, Cannon v. . 481, 484, 487, 498 Tredinniek, Maturin v. . . • 115 Trenchard, E. p. . . . ■ 140 Trent and Humber Co., E.p. Cambi-ian Steam Packet Co. 274, 313, 356, 685 Trent Valley Railway Co., E. p. Dale . 677 Trevor v. Whitworth 81,-82, 518, 539, 540, 541, 542, 562 Trimsaran Coal Co 240 Trory's Executors, E. p. . . . 313 Trowbridge Water Supply Co. . . 339 Trower and Lawson's Case . 302, 303 Trueman's Estate. Hooke v. Piper 296, 332 Trustees of Evan's Charities, Bank of Ireland ». . . . . .21 Tucker, E.p. ... 58, 68 , Bellairs v 106 , Lion Insurance Co. fl. 9, 10, 16, 19, 142 Tuffnell's Case . . .45, 46, 47 Tumacacori Mining Co. . 214, 215, 218, 261, 344 Tunis Railways Co. . . 391, 584 Tunnel Mining Co., Pool's Case . . 564 Turner, Great Eastern Railway Co. w. . 92 , E. p., Llanfy rnach Mining Co., JRe 329, 340 , Se . . . 403, 405, 576 Turnley and Oliver, .ff. ^. . .313 Turpin's Case . . . 557, 558 Turquand, Jackson v. . . 68, 77, 111 V. Kirby . . 204, 277, 462 V. Marshall . 128, 130, 277, 405, 498, 500 , Oakes V. 21, 104, 107, 111, 112, 115, 116, 117, 118, 122, 153, 323 , Royal British Bank v. 23, 42, 166, 502 Turton v. Turton .... 25 Tussaud, Madame Tussaud & Sons, Limited v 24, 25 Twycross v. Grant (2 C. P. Div. 506) 571, 572, 574, 575 (4 C. P. Div. 40) . 129, 404, 574 Tyddyn Sheffrey Slate Quarries Co. . 46 Tyneside Society .... 250 Tyrrell, Bank of London v. . 504, 577 U. Underbank Mills Co. . , . 163 Union Bank of Australia, Irvine v. 14, 166, 466, 502 Union Bank of Calcutta . . 8,218 Union Bank of Kingston-upon-HuU . 327, 328, 395 Union Bank of Manchester, E. p. . 74 Union Bank of Spain, Street v. . .25 Union Cement Co., E. p. Piilbrook . 696 Union Coal Co., Bloomer v. . . 167 Union Hill Silver Co. , . 187, 262 Union Plate Glass Co. . . 543' 544 Union Steamship Co. v. Melbourne ' Harbour Commissionei's . . 7 United Bacon Curing Co. . . . 337 United Club Co. .... 224 TABLE OP CASES. xli United English and Scottish Ins. Co. 257, 397 , E. p. Hawkins . . 235, 285 United Kingdom Association . . 280 B. Nevill . . , .527 United Kingdom Co., E.p. Croll . 349 United Kingdom Switchback Co., Grant o 166, 492 United Merthyr Collieries Co. . 329, 335 United Ports Go 674 Adams' Case . 58, 68, 80, 474, 475 Etna Co., E.p. . . . 281 V. Hill 195 . Tncker E. p. . . . 58, 68 United Service Co. 228, 232, 253, 332, 342, 344, 675 United Stock Exchange . . 212, 227 Unity General Assurance Association , 677' Uniyersal Bank : — (14 W. R. 906) . . .212 (1 Ch. 428) . . . .311 Universal Banking Corporation : — , Bartlett's Case . . 55, 60 , Challis, E.p. . . .87 Universal Disinfector Co. . . 234, 238 Universal Drug Supply Association 263, 334, 335 Universal Life Assurance Co., E. p. . 360 Universal Non-Tariff Co. . . . 251 Universal Private Telegraph Co. . 280 Unwin, Sheffield Nickel Co. ». . 183,516 Uruguay Central Kailway Co. 209, 211, 213, 261, 263 Uxbridge Railway Co. . . 283, 284 Vagliano Brothers v. Bank of England 21 Valpy and Chaplin, E. p. . 161, 162, 163 Van Oppen, Newby v. . . 218, 678 Van Tienhoven, Byrne ». . . .63 Vanderlinden, E.p. . . . 224 Vane, Strathmore v., Norcliffe's Claim 242 Velletri and Terracina Co. . . 677 Venables, Harris v. . . . . 226 Venezuela, Central Railway Co. of. ; — V. Kisch 12, 104, 106, 107, 108, 111, 113, 115 , Scholey ». ... . .114 Vickers, Trade Auxiliary Co. v. , 510 Victoria Graving Dock Co., Jones o. 192, 570 Vining's Case . . . 320, 394 Vivian and Co. . . 545, 648, 549 Vivian's Case . . . 378, 383 Vron Slate Co. (W. N. 1878, 70) . 677 (20 Ch. Div. 442) 229, 236, 237, 333 Vulcan Ironworks Co. . . . 557 w. Waddington, In re, E. p. Marshall . 201 Waddell, E. p., Be Lutscher . 304, 324 Waddle, South of Ireland Colliery Co. v. 569 Wainwright, E.p. . . . . 140 Wakefield Waterworks Co., Russell v. 486 Wala Wynaad Co 580 Walford's Case .... 52 Walker's Case : — (2 Eq. 554) . . 133, 282, 343 (6 Eq. 30) . . . 121, 134 Walker, E. p. (15 Jur. 853) . . 347 V. Banagher Distillery Co. 234, 246 V. General Mutual Society 177, 434 and Hacking ... 81, 82 and Lomax, Lim. . . . 545 V. London Tramways Co. . 181, 182 , Povah 0. , . . .44 , Soci(^t^ Ge'ne'rale v. . 87, 95, 453, 454 .Western of Canada Oil Co. D. . 195 Walkham United Mines . . . 250 Wall's Case . . . .61, 62, 63 Wallani, Wilson v. . , . . 242 Wallberg's Case 353, 354, 355, 666, 667, 685 Wallis' Case . . 59 Walmesley's Case, London and Sub- urban Bank 122, 250, 346 Walsham v. Stainton . 129 Walter, E.p. . 314, 485 Walton V. Edge 175, 176, 177 Wandsworth Gas Light Co. v Wright 502, 507 Ward, E. p. (3 Ex. 180) . . 100, 103 Ward's Case :— (2 Eq. 226) . . 99 (10 Eq. 659) . 56, 59, 60 Ward and Garfit's Case . 99, 343 Ward and Henry's Case 99, 100, 101, 139, 281, 566 Ward V. Dowling . . 134, 566 , North Stafford Steel Co . V. 23, 447 V. Sittingbourne, &c.. Railway Co. 130, 431 Wardle, Atkins & Co. v. . . 161 Waring, E.p. . 272, 364 Warland Commercial Co. . . 680 Warne's Case . . 377 Warner's Claim . 354 Warrant Finance Go's Case: — , Humber Ironworks Co., Se : — (No. 1) . . 368, 369, 370 . (No. 2) . . . 364, 369 , Joint Stock Discount Co., Se : — (No. 1) . . . .369 (No. 2) . . . .369 Warwick Canal Co., E. p. Croysdill . 432 Washoe Mining Co. v. Ferguson 194, 195 Waterford Railway Co. . . . 516 Waterford, &c.. Railway Co. v. Pidcock 63, 68 Waterhouse v. Jamieson 70, 83, 93, 118, 122, 558 Waterloo Life, &c.. Assurance Go. : — (31 Beav. 586) . . .443 (31 Beav. 589) . . 254 (4 N. R. 207) . . . .690 Waterlow v. Sharp . . . .172 Watkin, E. p. (1 Ch. Div. 130) . 275, 280, 296, 332 Watkins, E. p. (14 L. T. 696) . 101, 344 Watkins v. Scottish Insurance Go. . 190 Watney, Chatterton v. . 223 Watson, E. p. . 166 Watson, Ashbury v. . 16, 182, 458, 472 V. Eales . 451, 476 V. Miller .' 138 xlii TABLE OF CASES. Watson, Kipling, & Co. . . 243 Watt's Case . . 354 Wayet, Hobbs ». 89 Wear Engine Works Co. . . 229 Wearmouth Crown Glass Co. 234, 241, 243 Webb, £.J9 . 141 V. Earle . . 514 1). Heme Bay Commissioners 93, 94 V. Whiffin . 143, 148-157, 296, 323 Webber, Kp 305 Webster's Case (32 L. J. (Ch.) 135) 474, 475 ■ (11 W. E. 226) . 144 (2 Eq. 741) . . 104, 112 Wedgwood Coal Co. (6 Ch. D. 627) . 485, 582, 583 (W. N. 1882, 164) . . .408 , Batten v. . . 296 Weeks v. Propert .... 501 Weikersheim's Case . 73, 81, 83, 455 Weir V. Barnett . . . 127, 501 V. Bell , . . 105, 127, 501 Wells V. Estates Investment Co. . 258 Welsby and Andersson's Case . . 474 Welsh Flannel Co. . 185, 190, 323, 452 Welsh Potosi Co., E. p. Clarke . . 313 Wenlock v. River Dee Co. (10 App. Cas. 354) 14, 164, 1«5, 166 (19 Q. B. Div. 155) . . 174, 175 (36 Ch. D. 674 ; 38 Ch. Div. 534) 22, 165 (36 Ch. Div. 674, n.) 14, 15, 20, 164, 165, 166, 174, 483 Wentworth v. Chevell . . .205 Werner's Case, Kimberley Mining Co. 101 Werninck's Case . . 374, 377, 378 Wescomb's Case . . . .275 West African Telegraph Co. 545, 548, 586 West Cork Railway Co., Hutton v. 491, 493 West Cumberland Iron Co. . . 319 West Cumberland Steel Co. . . 549 West Devon Consols . . . 348 West of England Bank, K p. Booker . 493 , K p. Branwhite . . 286, 287 ,E. p. -Brown. . . 288,367 , E. p. Budden 202, 203, 321, 346 ■ , E. p. Hatcher . 143, 199, 207 V. Mnrch .... 78 , E. p. Roberts . . .203 , E. p. Swansea Friendly Society 7, 365 West Hartlepool Co. : — , Gunn's Case (38 L. T. 139) . 287 (10 Ch. 618) . 209, 229, 253, 263, 264, 339 (34 L. T. 568) . . .243 West India Pacific Steamship Co. : — ■ (19 L. T. 310) . . .546 ■ (9 Ch. 11, n.) . . 17, 544 West London Commercial Bank . 238 ti. Kitson . . . 180,501 West London Wharves Co., McEuen w. 69, 70, 457 West Riding of Yorkshire Society 176, 177 West Silver Bank Mining Co. . . 441 West Surrey Tanning Co. 209, 215, 216, 261, 334 West Worthing, &c., Co. . . . 246 West's Case 40 Westbourne Grove Drapery Co. : — (5 Ch. D. 248) . . 239, 355 (W. N. 1878, 195) . . .331 Western Bank of Scotland v. Addle 104, 116, 124, 126, 495 Western Benefit Building Society . 678 Western and Brazilian Telegraph Co. V. Bibby 258 Western of Canada Oil Co. ; — (17 Eq. 1) 209, 210, 247, 261, 263, 264 (6 Ch. D. 109) . . .304 (W. N. 1874, 148) . 259, 391, 584 D.Walker . . • .195 Western Insurance Co., Briggs' Case 109, 12 1 Western Life Assurance Society : — , Andrew's Case . . • 377 , Budden's Case 374, 376, 378, 379, 382 , Howell's Case . . .377 , Rivaz' Case . . 376, 377, 381 , Shayler's Case . . 375, 379 , Wood's Case . . . 331, 377 , WiUett, JE.p. . . ■ 268 Westminster Palace Hotel Co., Simp- son V. . . . 181, 486, 525 Weston o. New Guston Co. . . 394 Weston's Case. Cobre Copper Mining Co. (5 Ch. 614) ... 43, 44 Contract Corp. (6 Eq. 17) . . 147 ^ Smith, Knight, & Co. (4 Ch. 20) 27, 28, 232, 319 (10 Ch. Div. 579) . . 406, 410 Wetley Brick Co., General Share Co. t). 239, 242 Wey and Arun Junction Canal Co. . 432 Weymouth Packet Co. . . . 554 Whaley Bridge Co. v. Green 575, 576, 579 Whalley, Be, E. p. Boss . . . 345 Wharncliffe, Labouohere e. . . 582 Wheal Buller Consols . . 51, 53, 54 Wheal Lovell Mining Co., E. p. Wyld 208 Wheateroft's Case . . .61, 67, 80 Wheatley, Heward v. . . 461, 462 V. Silkstone Co. . . . 169 Whiffin, Webb V. 143, 148-157, 296, 323 Whinney, E. p. . . . 689, 690 , Colonial Bank e. . 74, 454, 455 Whitaker v. Robinson . . . 255 White, .B.i).,JJ« Patent File Co. 45,75, 122,135 White V. Land and Water Co. . . 190 White's Case (3 De G. & Sm. 157) . 78 (3 Eq. 86) . . . 99, 134 (12 Ch. Div. 511) . . 554, 555 Whitehaven Bank Case . . 376, 377 Whitehaven Banking Co. e. Bead . 172 Whitehead v. Izod . . . .344 Whitohouse and Co. 118, 143,286, 287, 400 Whitehouse's Case . . . .114 Whitehouse, Fawoett v. . . . 504 White Star Co. . . . 229, 248 Whitley Partners (28 W. R. 241) . 59 (32 Ch. Div. 337) . 6, 50 Whitmarsh, Reg. e. . . . 2, 3 Whittet's Case .... 45 Whitworth's Case, Silkstone and Dod- worth Co. . . 301, 302, 305, 328 Whitworth, Trevor v. 81, 82, 518, 539, 540, 541, 542, 562 Wickham v. New Brunswick Rail. Go. 168 TABLE OF CASES. xliii PAGE Wickham, Rawlins v. . 103, 436, 472 Wigfield V. Potter .... 3 Wilkinson v. Cummins . . . 511 Wilkinson, Wilmot v. . . . 365 Wilkinson's Case : — (2 Ch. 536) .... 113 (W. N. 1869, 211) ... 33 Willett, E.p 268 Williams' Case (9 Eq. 225, n.) . . 33 (Richard) Case . . 33, 35 ^"(Walton) Case . . 26, 34, 35 (1 Ch. D. 576) . . 34, 91, 92 Williams, S. p. (16 Ch. D. 590) . 291 (18 Ch. Div. 495) . . .485 Williams, Se (8 Ch. D. 183) . . 238 V. Bristol Marine Insurance Co. . 258 V. Colonial Bank . . 363, 455 ' ;. Ill 7 & 8 Vict. i>. 113 8 & 9 Vict. c. 16 .47 . 10 .14 . 16 22 s. 26, 27 ,85 .88 ,90 .91 .97 i. 128- . 135 , 136 5. 136, 8 & 9 Vict. t. 18, ». . , ». 8 & 9 Vict. c. 20, a. 8 & 9 Vict. 0. 98 . 9 & 10 Vict. c. 28 . 9 & 10 Vict. c. 75 9 & 10 Vict. c. 95, s 10 & 11 Vict. u. 78 134 138 134 . 128 FAOB . 286 . 286 . 533 349; 437 . 458 420, 534 495, 496 . 651 368, 651 199 368 422 88 299 87 159 421, 430, 533, 441; 442, 466 50, 490 362, 505 . 459 . 442 . 533 116, 533 . 534 462, 463, 678 . 645 . 453 196, 459 . 446 . 196 . 504 . 670 . 446 . 508 . 569 395, 396 . 190 . 646 . 190 . 670 . 190 . 190 . 533 . 533 . 533 . 159 . 533 137, 138 FAOB 11 & 12 Vict. 0. 43 ... 191 11 & 12 Vict. 0. 45 279, 285, 343, 434, 435, 533, 677, 689, 698 , s. 138 . . 697 12 & 13 Vict. c. 108 279, 434, 435, 533 ». 33 13 & 14 Vict. c. 35 13 & i4 Vict. u. 83 14 & 15 Vict. c. 93 15 & 16 Vict. .;. 31 15 & 16 Vict. .;. 80 15 & 16 Vict. u. 86, I 16 & 17 Vict. v;. 45 16 & 17 Vict. u. cliT., s. 53 17 & 18 Vict. u. 31 17 & 18 Vict. c. 104 17 & 18 Vict. c. 125, s. 12 18 Vict. 0. 32 .11. , 22 ,23 .63 311 . 205 283,430 . 191 433, 434 . 700 . 683 . 130 651 22 . 431 . 191 . 396 . 310 306, 307 . 348 . 413 642 18 & 19 Vict- 19 & 20 Vict. c. 47 184, 319, 414, 416, 417, 418, 419, 430, 441, 442, 443, 445, 457, 533 s. 13. , s. 19 . 25. s. 31 . s. 41. s. 90. s. 105 s. 115 s. 116 Table B 19 & 20 Vict. >;. 79 20 & 21 Vict. 0. 14 430, 441 20 & 21 Vict. u. 49 430, 441; 20 & 21 Vict, 0. 78 22 86 102 161 441 385 333 22 424 440, 533 Table B,, Art. 28 184 ss. 49-66 . . 605 ss. 112-117, 120 604 319,416,417,418,419, 442, 443, 445, 457, 533 s. 2 . . 416, 417 s. 24 . . 194, 195 B, 28 . . . 442 319,416,417,418,419, 442, 443, 445, 457, 533 B. 12 . . . 534 . 533 xl VI TABLE OF STATUTES. PAGE 20 & 21 Vict. c. 80 102, 285, 289, 533 21 Si 22 Vict. ^;. 60 ... 533 , 8. 19 . . 385, 388 21 & 22 Vict. c. 91 319, 416, 417, 418, 419, 430, 441, 442, 443, 445, 457, 533 21 & 22 Vict. c. 101 22 & 23 Vict. c. 35 22 & 23 Vict. . 23 & 24 Vict. < 23 & 24 Vict. . 24 & 25 Vict. . 59 58 145 29 25 & 2'6 Vict. u. 87 25 & 26, Vict. c. 89 26 & 27 Vict. v;. 87 , s. 11 , s. 14 27 & 28 Vict. c. 19 . 27 & 28 Vict. c. 43 . 28 & 29 Vict. c. 78, s. 3. 28 & 29 Vict. c. 86, s. 5 30 Vict. c. 29 ,..1 . 30 & 3l Vict. c. 47, s. 1 30 & 31 Vict. c. 126, ». 32 30 & 31 Vict. c. 127 , s. 3 , s. 31 (3) 30 & 31 Vict. c. 131 31 & 32 Vict. 0. 68, s. l2 32 & 33 Vict. c. 19, ss. 4-8 ,8.7 . , 88. 10-13 , 5. 12 ■, .. 13 . , s. 14 . , 88. 14, 15 , ss. 16-20 • , ss. 21-23 , s. 25 . , 8. 26 . , s. 33 . , s. 35 . , s. 38 . 32 & 33 Vict. c. 46 32 & 33 Vict. c. 62, s. 4 , n. 5 . 32 & 33 Vict. c. 71, s. 5 . . , 8. 6 . , ». 15 (5) , s. 16 (5) , o. 22 . . . , ». 23 . , >.. 81 . , e. 32 32 & 33 Vict. c. 33 & 34 Vict. c. 20 — , ». 34 . -, ». 49 . — , ». 87 . — , 8. 92 . 114, B. 4 s. 5. 642 205 205 197 642 78 81-84 128, 400, 412, 413, 519 314, 433, 434 ,7 230, 3i4, 433 . 331 1 . 435 . 436 . 365 . 188 . 651 17 . 608 . 639 . 456 299, 343 . 432 283, 432 . 431 . 283 . 535 . 368 180, 184 . 181 . 698 446,447 . 452 19, 196 196, 459 26 463, 466 . 464 . 438 . 350 . 268 28, 30 . 232 . 205 . 411 . 689 206, 431 . 224 75 . 367 . 463 202, 203, 463, 476, 477 356, 367, 463 242, 350, 366, 367 . 367 . 411 238, 366 . 398 284, 431 . 283 . 17 42, 33 & 34 Vict. u. 35 33 & 34 Vict. PAGB . 239, 243 ,8.5(3) . . 3 61 . 218, 234, 434, 642 — , 8. 2 . 223, 434, 669 — , s. 3 . . 661, 662 — , s. 4 . . 662, 663 — , 8. 10 . 663, 685 — , ss. 14, 15 . . 394 — , s. 21 221, 223, 226, 247 — , 6. 22 . . 262, 685 =. 25 33 & 34 Vict. c. 78 33 & 34 Vict. c. 93 33 & 34 Vict. c. 97 33 & 34 Vict. u. 33 & 34 Vict. c. 34 Vict. c. 4, s. 4 . 34 & 35 Vict. c. 31, 8. 5 34 & 35 Vict. c. 58 . , 8. 1 ,8.2 35 & 36 Vict. c. 41 . ,8.1 ,».2 , 5. 3 ,».4 , =. 5 = , =. 7 35 & 36 Vict. c. 76, =. 52 36 & 37 Vict. c. 66 . , s. 24 ,.25 37 & 38 Vict. c. 42 . , S.4 . , s. 15 . , s. 20 . , 8. 32 . -, 8. 43 . 661 . 258 . 79 59, 458 -,83.12,69,71,74(3) 458 — , ». 102 . . 489 — , s. 127 . . 568 98, s. 18 . 565 — , 8. 19 . 565 — , s. 70 . . 564 104 . . 485, 581 — , s. 2 278, 385, 386, 387, 388, 605 . 489 . 4,6 643, 651, 661 643, 662 . 434 354, 355, 643, 662 643, 661, 669 . 644 . 645 208, 223, 232, 253, 268, 649 . 355 371, 374, 380 . 574 . 614 . 237 223, 233, 348 21, 229, 436 43 230, 434 172, 173 22 230, 434 . 173 . 79 76, 92, 134 . 243 608, 668 7,365 37 & 38 Vict. c. 50 . 37 & 38 Vict. c. 62 . 38 & 39 Vict. c. 55, s. 211 38 & 39 Vict. c. 60 . , 8. 15 . , s. 24 . 38 & 39 Vict. c. 66 . 315, 441, 443, 444 38 & 39 Vict. c. 77, s. 10 . 169, 238, 239, 242, 2150, 288, 336, 350, 358, 363, 365, 366, 369, 685 -, s. 28 , . 384 4 331, 433 81 38 & 39 Vict. ch. clvii. 39 & 40 Vict. c. 22 . 39 & 40 Vict. c. 45 . , s. 12 , , s. 16 , 8. 17 222, 230, 298, 317, 434 546 40 & 41 Vict. 0. 26 . . . . ' 585 42 & 43 Vict. c. 76 . . . . 588 43 Vict. c. 19 .... 593 44 & 45 Vict. c. 59 . . 98, 413, 550 TABLE OF STATUTES. clvii 45 & 46 Vict. u. 43 . 45 & 46|Vict. u. 75 . 46 & 47 Vict. c. 28 . 46 & 47 Vict. c. 30 . 46 & 47 Vict. c. 39 . 46 & 47 Vict. c. 52 . , s. e (2) ,s. 7 . , s. 30 . , s. 37 . , =,. 37 (3) , s. 38 . , =. 40 . -, o. -jS. 40(1) 42(1) 44(3) 46(1) 48. 50(3) 55. 57(1) 123 125 148 150 162 47 & 48 Vict. c. 41 47 & 48 Vict. c. 51, s. 49 Vict. c. 23 31 . PAOE 272, 366 . 79 . 609 . 600 645, 661 . 137 . 224 . 679 . 411 202, 463 356, 367 . 358 242j 350, 366, 367, 608 . 609 . 367 74, 455 238, 366 . 398 . 463 463; 476, 477 277 197, 208, 431 . 608 190, 679 239, 367 . 623 . 412 . 164 . 603 (2) (2) 49 & 50 Vict. u. 28 . 50 & 51 Vict. i;. 43 . s. 2 ». 4 s. 9 s. 10 s. 19 s. 21 s. 22 B. 25 5.28 ». 31 50&S1 51 Vict. 51 &52 51 &52 52 Vict. Vict. u. 47 . >;. 8, s. 11 . , s. 12 Vict. c. 59 . Vict. c. 62 . c. 7, s. 16 . -, s. 18 52 & 53 Vict. c. 42, s. 15 -, s. 18 52 & 53 52 & 53 53 &54 53&54 53 &54 53 &54 53&54 Vict. c. 49, s. 5 Vict. c. 60, s. 4 Vict. c. 23, ss. 3, Vict. c. 39, B. 48 Vict. c. 62 . Vict. c. 63 . Vict, ci 64 . 222, 608 163, 222 163, 350 163, 350 . 350 . 163 . 353 231, 464 . 180 140, 222, 614 20, 85, 97, 158, 160, 416 435 . 524 . 164 411 499 242, 349, 350^ 607 . 524 . 602 . 564 . 602 . 396 608, 609 . 614 . 608 . 610 . 613 . 633 4,5 In references to the Law Eeports the following notation has been adopted : — Cases in a Court of ( are referred 1 „. -pj . /-) t> t-. first instance I to as ) Cases in the Appeal ( are referred 1 „, t^; ,-. -r> t^. ^ ^ ^^ i ^ f Ch. Div. ; Q. B. Div. Court I to as J THE COMPANIES ACTS. THE COMPANIES ACT, 1862. 25 & 26 YiOT. c. 89. An Act for the inoorporation, regulation, and winding up of Trading Companies and other Associations. [7th August, 1862.] Wheeeas it is expedient that the laws relating to the incorpora- tion, regulation, and winding up of trading companies 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 : Preliminary. 1. This Act may be cited for all purposes as "The Companies Short title. Act, 1862." 2. This Act, witli the exception of such temporary enactment Commence- as is hereinafter declared to come into operation immediately (a), ""'"' °f Act. 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 com- mencement of this Act. (a) s. 209. 3. For the purposes of this Act a company that carries on the Definition of business of insurance in common with any other business or p"™™*^^ '"'™' businesses shall be deemed to be an insurance company. This section disposes of the doubts raised by London Monetary Co. v. Smith (a) and London and Provincial Provident Society v. Ashton (b). 4. No company, association, or partnership consisting of more Prohibition of than ten persons shall be formed, after the commencement of this paitifships * exceeding cer- (a) 3 H. & N. 543. (6) 12 C. B. (N.S.) 709, 723 ; 11 W. R. 152 ; 8 L. T. 530. '""^ ""'"''"'• B THE COMPANIES ACT, 1862. Sect. 4. What com- panies must register. " Business." Meaning of ** gain." '* Associatio:; Act, for the purpose of carrying on the business of banking, 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, association, or partnership consisting of more than twenty persons shall be formed, after the commencement of this Act, for the purpose of carrying on any other business that has for its object the acquisition of gain by the company, associa- tion, or partnership, or by the individual members thereof (a), 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. L. J., Padstow Association, 20 Ch. BW. 149 ; per Brett, L.J., Shaw T. Benson, 11 Q. B. Div. 569. (a) These words were introduced to ex- clude Seg. V. Wiitmarsli, 15 Q. B. 600 ; Bear v. Bromley, 18 Q. B. 271 ; Moore v. SawUns, 6 C. B. (N.S.) 289 ; per Lindley, " The Act was intended ... to prevent the mischief arising from large trading undertakings being carried on by large fluctuating bodies, so that persons dealing with them did not know with whom they were contracting, and so might be put to great difiSculty and expense, which was a public mischief to be repressed " (c). The Act broadly means that all commercial undertakings as distinguished from literary or charitable associations shall be registered (d). Under the expression " commercial undertakings " as here used are to be included all such companies as are formed to acquire something, or in which the indi- vidual members are to acquire something, as distinguished from companies formed for spending something, and in which the individual members are simply to give something away or to spend something, and not to gain any- thing. An association, such as a mutual insurance society (e) or a loan society (/), which does not itself gain anything but whose individual members gain something, is within the section. " Business " has a more extensive signification than " trade.'' Farming and banking are both businesses, though neither of them is strictly a trade (,9). " Gain " means acquisition : it is not confined to pecuniary gain, still less to commercial profits : an association for securing indemnity against loss in carrying on a trade iS an association for gain (d). Having regard to s. 21 the true meaning of the word " gain " is to be found in contrasting with the company whose object is the acquisition of gain, the company whose objects are charitable (K). By the Companies Act, 1867, s. 23 (c infra), an association formed for purposes not of gain may, by licence of the Board of Trade, register with limited liability, without the addition of the word "limited" to its name. , " Company, association, or partnership." Company and association are, in (c) Per James, L.J., Smith v. A)uhTson, 15 Ch. Div. 273. (d) Ai-tlntr Jivrailo Association, E. p. Ilanirovo Sf Co., 10 Oh. 545 ; Padstow Asso- ciation, 20 Ch. I1lv. 137, 14.-., 148, 149. (c) Jl. p. JIanjrove .1' Co., 10 Ch. 545 ; Padstow Associalivii, 20 Ch. Div. 137. In the last-mentioned case Brett, L.J., with- drew the opinion he had expressed to the contrary in Smith v. Anderson, 15 Ch. Div 247,278, 280. (f) Shaw V. Benson, 11 Q. B. Div. 563. (17) 15 Ch. Div. 258, 259. (/i) Arthur Average Association, E. -p. Hargrove & Co. (Jessel, M.R.), 10 Ch. 545, approved by James, L.J., Ibid. 554. THE COMPANIES ACT, 1862. 3 the opinion of James, L.J., synonymous, and intend, as distinguished from Sect. 4. partnership, a combination in which the partners can change from time to time without the necessity either of consent as between the partners or of novation as regards the creditors («). But perhaps (per Brett, L.J.) (7c) an association (0 which is neither a company nor a partnership is a possibility, and Cotton, L.J., suggests that a combination of persons or of firms to carry out a particular adventure is what is intended (m). It will be observed that the title and preamble of the Act speak of " trading companies and other associations." The Apportionment Act, 1870, s. 5 (3), uses the expression " trading or public com- other public company." What a " public company " is has not been defined, pany. but one test is whether the members have a right to transfer their shares (n). But whatever the " company, association, or partnership " is, it is not Joint relation. within the section unless there is a joint relation for carrying on a business, Business, that is to say, for doing a succession of acts, having the acquisition of gain for their object (k). And if a substantial part of the objects of the associa- tion is not the carrying on of such a business, a mere subsidiary provision will not bring it within the section (o). It has therefore been ultimately held in Smith v. Anderson (p), overruling Investment SyJces v. Beadon (j), that a combination of persons for forming a common *'''^^* ''°™-' fund for investment by trustees in certain securities is not an association ^ within the section, and further, that neither the subscribers nor the trustees in such a case carry on a " business," and that even if they do, such business is carried on not by the association or its members but by the trustees, and if the trustees are less than twenty in number the section is not infringed. " Persons who have no mutual rights and obligations do not . . j constitute an association because they happen to have a common interest or several interests in something which is to be divided between them " (r). So a land society, being an association of persons formed to purchase an Land societies, estate, subdivide it into allotments, make roads, and divide the allotments among the members, does not carry on a business that has for its object the acquisition of gain, and does not require to be registered (s). And where the rules of a land society provided that on conveyance to a member of his allotment, the right to the minerals should remain vested in the trustees (in whom the land was vested), and that the trustees might work the minerals, and the profits should be divided amongst the members, it was held that the trustees no doubt were carrying on a mining business, but as principals not as agents, and that the association was not carrying on a business and did not require to be registered (0- But a loan society whose objects are to form a fund from which money Loan societies. may be advanced at interest to enable members to build or buy a house, or may be advanced to members on personal security, does carry on a business having for its object the acquisition of gain by the company " or by the individual members thereof," for the lending member at any rate (j) Smith T. Anderson, 15 Ch. Div. 247, 330 ; 50 L. T. 43 ; and see Bear v. Brom- 273 ley, 18 Q. B. 271 ; Moore v. Rawlins, 6 (fi) Smith T. Anderson, 15 Ch. Di\r. 247, C. B. (N.S.) 289. 277. (p) 15 Cli. Div. 247. (0 See also St. James' Club, 2 D. M. & (?) 11 Ch. D. 170. G. 383. (r) Per James, L.J., Smith r. Anderson, (m) 15 Ch. DiT. 282. 15 Ch. Div. 247, 275. (n) Carr v. Griffith, 12 Ch. D. 655. (s) Wigfield v. Fatter, 45 L. T. 612 ; (o) Smith T. Anderson, 15 Ch. Div. 247, JSe Siddall, 29 Ch. Div. 1. 279 (referring to Reg. r. Whitmarsh, 15 (t) Crowther v. Thorley, 32 W.K 330; 50 Q. B. 600); Crowther v. Thorley, 32 W. R. L.T.43; fol!owedinif«jS'('£?rfaZ?,29Ch.Div.l. b2 THE COMPANIES ACT, 1862. Sect. 4. "Shall be formed." Foreign cor- porations. Trade union. Farming com- pany. Consequences of non-regis- tration. Winding-up of illegal asso- ciations. gains (u), and the fact that the operations of the society are conducted by a ~ committee, less than twenty in number, does not bring the case within SmitJi V. Anderson (x) and Crowther v. Thorley (y), if the committee act in fact as agents and not as principals (z). An association consisting at first of less than twenty persons becomes illegal within the section so soon as it comes to consist of more than twenty persons (a). But an association consisting of more than twenty persons existing before 1862, whose members vary from year to year by some persons ceasing to be and others becoming members, is not " formed " on each change of membership, and such a society does not require to be registered (6). A foreign company cannot be registered as an existing company under the Companies Acts (c), and cannot (if it have no office in this country) have a winding-up order in this country (d). A limited company incorporated under the laws of another country may, it is conceived, trade in this country without being incorporated according to the laws of this country (e). Sap- pose, therefore, a company consisting of more than twenty persons were formed in (say) France according to the law of France, with a view to trading, and which did after its formation trade here, qticere would such a company be illegal? Does not " formed" in this section mean "formed in this country " ? A trade union cannot register under the Act (/). An association formed for the purpose of farming and grazing is within this section, and unless registered is illegal. Farming, although not a " trade," is a " business," and has for its object the acquisition of gain (g). An association formed after the Act which ought to be and is not regis- tered, is an illegal association, and it has been much discussed whether to an association whose very existence is thus a defiance to the Act, the wind- ing-up provisions of the Act can be applied. In E. p. Hargrove & Co. Qi), Jessel, M.E. (without in any way deciding the point), stated it to be his impression that the Court ought not to wind up an illegal association ; and in Re Padstow Association (i) a winding-up order was discharged on the ground that the association was, for want of registration, illegal. That was a case of a mutual marine insurance society, and the petitioner was an assignee of the claim of a member whose vessel had been lost. He stood, therefore, in the shoes of a person necessarily affected with notice of the illegality. Both Jessel, M.E., and Brett, L.J., however, treat the case generally and discharge the order, on the ground that by reason of the illegality there never existed in law any association at all, and consequently it could not be wound up. Lindley, L.J., however, treats it as possible that if A. has traded with an association consisting (so far as he knows) of less than twenty, he might have a winding-up order, notwithstanding that the respondents shewed that in fact thirty or forty more persons had been illegally associated with them. No doubt it is not competent to members participes criminis, or to creditors cognizant of the illegality, to pray the exercise of the jurisdiction in their (w) Shaw V. Baixon, 11 Q. B. Div. 563 ; So Thomas, 14 Q. B. D. 379. (») 15 Ch. Div. 247. (i/) 32 W. R. 330 ; 50 L. T. 43. Iz) Be Thomas, 14 Q. B. D. 379. (a) Ibid. (6) Shaw V. Simmons, 12 Q. B. D. 117. (o) Bidkelcji v. SchuU, L. R. 3 P. C. 764. (d) Lloyd Gcncmle Italiano, 29 Ch. D. 219. (e) See Bateman v. Service, 6 App. Cas. 386. (/) 34 & 35 Vict. u. 31, s. 5 (amended by 39 & 40 Vict. c. 22) ; see Reg. v. Registrar of Friendly Societies, L. E. 7 Q. B. 741, as to registration under that Act. ((/) Harris ^\ Amery, L. E. 1 C. P 148. (/i) 10 Ch. 542, 548. (0 20 Ch. Div. 137. THE COMPANIES ACT, 1862. 5 favour. But it cannot lie in the company's mouth to allege its own illegality Sect. 5. as a defence (k), and it has been said that the very fact of the illegality of its existence may supply a strong reason for winding it up, so that possibly such an association might be wound up upon the petition of a bond fide creditor, and even in some cases upon that of a contributory Q). If an order to wind up an illegal association has been made, it was said in South Wales Atlantic Steamship Co. (m) that the winding-up would deal only with existing assets and existing liabilities, and could not be used to enforce contribution from the members who had not paid for the re-imbursement of those who had : for that as between the members of an illegal association no right of contribution exists. Jessel, M.E., however, has dissented from this, and expressed an opinion that if a winding-up order can be made all the ordinary consequences of the order must follow («). There are several instances in which before the decision in Padstow Asso- De facto wind- ciation (o), unregistered mutual insurance companies were wound up under ^^^-^V "^ """ the Act (_p). Where an order has been made it cannot be questioned in pro- mfgai oom- ceedings consequent upon the order (9). If, therefore, debts have been proved panies. and not expunged within due time, a call will be made to pay them (r), and the contributories are liable to calls for the costs of the winding-up (s). An association which is illegal for want of registration cannot recover Action by debts due to it (<). But where an association illegal for want of registration illegal asso- has made an advance, and then having registered and become legal sues for °'^ '°°" the debt, it may sustain the claim if it can be shewn that the debtor has recognised and adopted the incorporated association as his creditor (m). Companies formed after the commencement of the Act, and required to Eflfect of non- register under this section, are, in default of registration, illegal ; companies I'^gistration in formed lefore the commencement of the Act, and required by sect. 209 to p^nie^s formed register under it, are not, in default of registration, illegal, but, until before the Act. registration, are subject to the penalties imposed by sect. 210. As to the application of the Act to companies existing at the time of its commencement, and as to the registration of such companies under it, see Parts VI. and VII. of the Act, and sect. 209. As to the liability of a banking company in respect of its issue of notes, see sect. 182. As to banking partnerships, see Sch. III. Pt. 2. A savings bank company is not necessarily a banking company within the statute (aj). 5. This Act is divided into Nine Parts, relating to the follow- Division of ing subject-matters : The First Part, — to the Constitution and Incorporation of Companies and Associations under this Act : (A) Cf. JDoolan v. Midland Railway Co., Swansea Tin Plate Co., 36 Ch. D. 558. 2 App. Cas. 792, 806. (i-) Arthur Average Association, 3 Ch. D. (I) South Wales Atlantic Steamship Co., 522. 2 Ch. Div. 763. No debt was here estab- (s) Arthur Average Association, 3 Ch. D. lished in the cnse of the outside creditor, 522 ; Queen's Average Association, E. p. and the point was therefore not decided. Lynes, 38 L. T. 90 ; 26 W. E. 432. (m) 2 Ch. DIt. 763. (i) Jennings v. Hammond, 9 Q. B. D. (») Padstow Association, 20 Ch. Div. 140. 225 ; E. p. Day, 1 Ch. D. 699 ; Shaw v. (o) 20 Ch. Div. 137. Benson, 11 Q. B. Div. 563; cf. Strick v. (p) See the cases cited I're/ra, s. 199. Swansea Co., 36 Ch. D. 558; Phillips v. (q) London Marine Association, 8 Eq. Daxdes, 5 Times L. E. 98. 176 ; Arthur Average Association, 10 Ch. («) Ee Thomas, 14 Q. B. D. 379. 542, 549 ; 3 Ch. D. 522 ; and see Padstow {x) District Savings Bank, 10 W. R. 138 ; Association, 20 Ch. Div. 145; Strick y. 31 L. J. (Ch.) 319 ; 5 L. T. 566. 6 THE COMPANIES ACT, 1862. Sect. 6. The Second Part,— to the Distribution of the Capital and Liability of Members of Companies and Associations under this Act : 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 Asso- ciations under this Act : The Fifth Part, — to the Kegistration OfiSce : The Sixth Part, — to Application of this Act to Companies registered under the Joint Stock Companies Acts : The Seventh Part, — to Companies authorized to register under this Act : The Eighth Part, — to Application of this Act to unregistered Companies : The Ninth Part, — to Eepeal of Acts, and temporary provisions. PART I. Constitution and Inooepoeation of Companies and Associations undee this Act. Mode of form- ing company. Signature by an agent. Not of gain. Infant sub- scriber. Memorandum of Association. 6. Any seven or more persons associated for any lawful purpose may, by subscribing their names to a memorandum of associa- tion (a), and otherwise complying with the requisitions of this Act in respect of registration (/3), form an incorporated company with or without limited liability. (a) See forms in Sch. II. (;8) ss. 17, 18. Signature by an agent verbally authorized is sufficient. The memorandum of association is not a deed, although by s. 11 it has for certain purposes the effect of a deed (y). A company formed for purposes not of gain may clearly register and obtain limited liability (z). But a trade union cannot register (a). If the memorandum be in fact signed by seven persons, and a certificate of incorporation (s. 18) be given, the certificate of the registrar is conclu- sive (J) that the parties have become an incorporated body. The incorpora- tion is not rendered invalid by the fact that one of the subscribers was an infant (c). Where, however, a company, after a short existence, had passed into voluntary liquidation, which was continued under supervision, and then (j/) Wliitley Partners, Limited, 32 Ch. Div. 337. (z) And under Companies Act, 1867, B. 23, without the addition of " limited " to its name. (a) 34 & 35 Vict. c. 31, s. 5. lb) Cf. Glover v. Giles, 18 Ch. D. 173. (c) Nassau Phosphate Co., 2 Ch. D. 610. THE COMPANIES ACT, 1862. 7 a subscriber of the memorandum was struck off the list of contributories on Sect. 6. the ground that he was an infant, a compulsory winding-up order was made (d). But this case did not necessarily decide that the registration was invalid. It is enough to say that inasmuch as the supervision order would have been bad if the registration was invalid, it was preferable to make a compulsory order which would be good in either event. The word " person " includes a body corporate. A limited company may Person, become a shareholder in another limited company, if authorized by its own memorandum and articles of association to do so (e). And if a limited company be by its memorandum and articles of association authorized to hold shares in an unlimited company and the memorandum and articles of the unlimited company do not forbid it, it is conceived that there is no legal impediment to its doing so. For while in Mioir v. Glasgow Bh. (/) it was established that trustees cannot become shareholders " as trustees," so as to limit their liability to the trust estate, the opinions of the Lords pro- ceeded upon the footing that if it could have been shewn that in Scotch law the trustees were a corporation, the result would have been different. The ground of Muir v. Glasgow Bk. (/) is that there is no power in law to limit the liability of a shareholder, except under the statute, so that a man cannot be shareholder except upon the terms that he is personally liable to the full extent of his means. But if a corporation be shareholder it is none the less liable to the full extent of its means by reason of its being a limited company, than an individual by reason of his means being limited to that which he possesses {g). Whether the word " person " in a statute can be treated as including a corporation, must depend on a consideration of the object of the statute and of the enactments passed with a view to carry that object into effect Qi). Under the Friendly Societies Act, 1875 (38 & 39 Vict. c. 60), s. 15 (7), it has been held that a corporation cannot be treasurer to a friendly society, and that consequently where an incorporated bank purported to have been appointed treasurer, the provisions of that Act as to priority of payment were not applicable in the winding-up (i). To be capable of being registered under the Act the company must be one Foreign share- which, at the outset, contemplates some description of management and of li oilers, carrying on business in this country. But if this be so, the fact that the ^"5^'^ '"^^'" scene of its operations is to be in other countries is no objection to its being constituted here under the Act (h). Neither will it constitute any objection that the subscribers of the memo- randum of association are foreigners and resident abroad. Any persons who contemplate a company which, according to the articles of association, may be managed and carried on here, and may have a directorship here, may law- fully sign the memorandum, and may lawfully go through those forms which are necessary for incorporation. The mere circumstance that the persons who sign do not live in this country does not, of itself, necessarily prevent (d) Hertfordshire Brewery Co., W. N. Supply Association, 5 App. Cas. 857 ; 4 1874, 38 ; 22 W. E. 359 ; 43 L. J. (Ch.) 358. Q. B. D. 313; 5 Q. B. Civ. 310; Union (e) Earned' s Banking Co., E. p. Contract Steamship Co. v. Melbourne Harbour Corn- Corporation, 3 Ch. 105 ; Eoyal Bank of missioners, 9 App. Cas. 365. India's Case, 7Eq. 91; Ibid. 4 Ch. 252; (t) West of England Bank, E. p. , and see s. 23. Cf. Re Jeffcock, W. N. 1882, Friendly Society, 11 Ch. D. 768. 49 ; 51 L. J. (Ch.) 507. (h) General Co. for the Promotion of if) i App. Cas. 337. Land Credit, 5 Ch. 363 ; L. R. 5 H. L. 176 ; (gr) Consider Muir v. Glasgow Bank, 4 and see Madrid and Valencia Railway Co., App. Cas. 337, 381. 3 De G. & Sm. 127 ; 2 Mac. & G. 169 ; and (K) JPharmaceutical Society v. London ». 79, sub tit. " Foreign Company." 8 THE COMPANIES ACT, 1862. Sect. 7. the operations of the company from being carried on in England ; and if in other respects foreigners comply with the requirements of the Act, they can have the benefit of the Act, just as they can benefit by the laws of this country by trading in this country (I). Whether or not a company can be registered in this country which conducts no business whatever, and never intends to conduct any business in this country, qucere ; see Union Banh of Calcutta (m) and the observations of Hatherley, L.O., in Princess ofBeuss v. Bos (n). If such a company have been registered it can be wound up under the Act (o). A foreign partnership or company complete and existing in a foreign country cannot be registered as an existing company under the Act (p), and it is conceived that such a partnership or company although consisting of more than twenty persons may trade here without being registered here (j). Foreign share- An English corporation may be the owner of a British ship notwithstand- holders. j^g ^jj^t some Or, semble, that even all the shareholders in the corporation British ship, ^^g foreigners {r). Friendly and Friendly Societies (s) and Industrial and Provident Societies (0 may by Industrial special resolution under the Acts referred to determine to convert themselves Societies. . , . j j_i ^ - * a into companies under the Compames Acts. Mode of limit- 7. The liability of the members of a company formed under memWs.'*^ "^ this Act may, according to the memorandum of association, be limited either to the amount, if any, unpaid (a) on the shares re- spectively held by them, or to such amount as the members may respectively undertake by the memorandum of association to con- tribute to the assets of the company in the event of its being, wound up. (a) Almada Co., 38 Ch. Dir. 415, 424, 425. s The provision of this section that the liability of the members is to be defined by the memorandum is one which is to be strictly adhered to. For the enactments by which limited liability has been permitted have been passed in favour of the shareholders, and the means prescribed must there- fore be strictly followed. This section expressly says that it must be done by the memorandum, and any provisions, therefore, in the articles by which the liability is sought to be limited to the prejudice of creditors in a way inconsistent with the memorandum are simply void («). But in matters which are not thus of the essence of the memorandum it is possible that the memorandum may be controlled by the contemporaneous articles (a;). Thus the articles may extend the liability of the shareholders beyond the limit fixed by the memorandum in order to provide for the pay- ment of a particular debt (y). (J) General Co. for the Promotion of (t) Industrinl and Provident Societies Land Credit, 5 Ch. 363 ; L. R. 5 H. L. 176. Act, 1876, 39 & 40 Vict. c. 45, ». 16 (4) (7). (m) 3 De G. & Sm. 253 ; 19 L. J. (Ch.) (u) Dent's Case, 15 Eq. 407; Ibid. 388. 8 Ch. 768, 775. From the cases collected, (it) L. R. 5 H. L. 176, 194. infra, s. 23, it will be seen that subscribers (o) Infra, s. 79. of the memorandum are most strictly (p) Bulkeleij V. Sehut:, L. R. 3 P. C. treated. 764. (.r) Phccnix Bessemer Steel Co., 32 L. T. ((/) Bateman v. .S'lt'/.r, 6 App. Cas. 386 ; 854 ; 44 L. J. (Ch.) 683 ; Harrison v. and sec note to s. 4, ante. ili-xican Sailu-ai/ Co., 19 Eq. 358 ; South (r) Eeij. V. Arnmid, 9 Q. B. 806. Durham Brewery Co., 31 Ch. Div. 261. (s) Friendly Societies Act, 1875, 38 & 39 (i/) Maxwell's Case, 20 Eq. 585 ; McKe- Vict. c. 60, a. 24 (4) (7). loan's Case, 6 Ch. Div. 447. THE COMPANIES ACT, 1862. 9 By the Companies Act, 1867, ss. 4-8 (v. infra), the liability of the directors Sect. 8. of a limited company may be unlimited. Directors. 8. Where a company is formed on the principle of having the Memorandum liability of its member.s limited to the amount unpaid on their ^f ^ company shares, hereinafter referred to as a company limited by shares, the ^!"".'*^'^ ^^ memorandum of association (a) shall contaiu the following things : (that is to say,) (1.) The name of the proposed company, with the addition of the word " Limited " as the last word in such name : (2.) The part of the United Kingdom, whether England, Scot- land, or Ireland, in which the registered ofSce of the company is proposed to be situate : (3.) The objects for which the proposed company is to be established : (4.) A declaration that the liability of the members is limited : (5.) The amount of capital with which the company proposes 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 association shall write opposite to his name the number of shares be takes. (o) Sch. II., Form A. A company formed for piirposes not of gain may under the Companies Act, " Limited." 1867, s. 23 (v. infra), register with limited liability without the addition of the word " Limited " to its name. The members of a limited company may by agreement among themselves extend their liability so as to make themselves responsible for the discharge of a particular debt by contributions in excess of the limit of liability (z), and may extend their liability beyond that which they are liable to pay for satisfaction of the debts and liabilities of the corporation to an amount which they are to pay (e.g. as mutual insurers) for satisfaction of claims of members to which they have contracted to contribute (a). 9. Where a company is formed on the principle of having the Memorandum liability of its members limited to such amount as the members of a company respectively undertake to contribute to the assets of the company !"'"'«<' by , . guarantee. in the event of the same being woimd up, hereinafter referred to as a company limited by guarantee, the memorandum of associa- tion (a) shall contain the following things : (that is to say,) (1.) The name of the proposed company, with the addition of the word " Limited " as the last word in such name : (z) MaxwelVs Case, 20 Eq. 585 ; McKe- (a) Lion Insurance Co. v. Tucker, 12 wan's Case, 6 Ch. Div. 447. Q. B. Diy. 176. 10 THE COMPANIES ACT, 1862. Sect. 9. (2.) The part of the United Kingdom, whether England, Scot- land, 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 : (4.) A declaration 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 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 of the costs, charges, and expenses of winding-up the company, and for the adjustment of the rights of the contributories amongst themselves, such amount as may be required, not exceed- ing a specified amount. (o) Sch. II., Forms B, C. It is remarkable that tlie memorandum of association of a company Kmited by guarantee has not to contain head (4) of s. 8, viz., " A declaration that the liability of the members is limited." A company limited by guarantee may or may not have a capital divided into shares (ss. 14, 90, 134). The regulations at the end of sect. 8 are there- fore omitted in this section as being inapplicable to one class of companies limited by guarantee, viz., those in which there is not a capital divided into shares. These regulations are subsequently enacted by sect. 14 in the case of a company limited by guarantee and having a capital divided into shares. The same remark applies to sect. 10 with respect to an unlimited company. It will be observed that sect. 14 enacts that each subscriber shall write opposite to his name in the jnemorandum of association the number of shares he takes. In the forms, however, in Sch. II. (6), this is put in the articles of association. It may be a question whether " memorandum " has not been inadvertently inserted in sect. 14 for " articles," a view which receives con- fitrmation from the fact that the provisions as to capital in the case of companies other than such as are limited by shares are placed in the articles of association, not in the memorandum, and the number of shares for which a member subscribes would naturally be placed in the same document. By sect. 176 in the case of an unlimited company registered under previous Acts the company may alter the regulations relating to its capital notwithstand- ing such regulations are contained in the memorandum of association. Limitation by guarantee may conveniently be used by mutual insurance societies, for the contract of contribution for mutual insurance may be enforced although it is nllra the contribution prescribed in the memorandum under clause (4) of this section (e). And limitation by guarantee with a capital divided into shares may conveniently be used by other commercial companies. But limitation by guarantee without a capital ultra the guarantee seems properly applicable only to companies which require no trading capital. For in respect of capital properly so called such companies can never receive a sixpence from their members until the company is in liquida- (6) See Forms C. and D. (c) Lion Insurance Co. v. Tucker, 12 Q. B. Div. 176. Companies limited by guarantee. THE COMPANIES ACT, 1862. 11 tion. And even in winding-up tlie liability is not of much value to the Sect. 10. creditor, for the guarantee is not so much per share but so much per member, and fluctuates therefore with the number of members. If therefore a year before winding-up commenced (see s. 38, (1) (6) ) the members reduce them- selves to seven in number, the creditors will find that seven times £1 or £5, or whatever may be the figure, is all they have to look to. An adroit use of limitation by guarantee would lend readily to fraud. It has been not uncommon to register a certain class of companies (prin- cipally insurance companies) with liability limited by guarantee and to include in the articles of association provisions for the formation of a " Guarantee Fund." The guarantee properly so called contained in the memorandum may be £1 per member ; the " Guarantee Fund," despite the similarity of name, is something quite distinct, and is, say, £250,000. The provisions as to the " Guarantee Fund " are to the effect that every member shall guarantee, say £100 or some multiple of £100, and that to the extent of his guarantee he shall be liable to be called upon to make advances from time to time to the company as the company may require, receiving, say, 10 per cent, on what he pays up in respect of his guarantee, and 2? per cent, on the difference between the amount he has guaranteed and the amount he has paid up. The result is to provide the company with working capital, and inasmuch as it has been held (d) that the agreement to advance is determined by the winding-up of the company, the effect upon the creditors in the event of liquidation is this — they find that the company had no. assets beyond the few pounds comprised in the guarantee in the memo- randum, and that the " Guarantee Fund," whose substantial figures were probably put -prominently forward in the company's prospectus and policies, not only is not a fund available to satisfy their claims, but that so much of it as has been called constitutes a debt of the company ranking pari passu with the creditors' claims against the assets (if any) of the company. 10. Where a company is formed on the principle of having no Memorandum limit placed on the liability of its members, hereinafter referred ofarunUm™ed to as an unlimited company, the memorandum of association (a) company. 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, Scot- land, 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. (o) Sch. II., Form D. See note to sect. 9. 11. The memorandum of association shall bear the same stamp stamp, signa- as if it were a deed, and shall be signed by each subscriber in the ^f '^'g^'lJ^.a^^"' presence of, and be attested by, one witness at the least, and that dum of asso- attestation shall be a sufficient attestation in Scotland as well as in England and Ireland : It shall, when registered, bind the com- pany and the members thereof to the same extent as if each (_d) Indemnity Fire Office r. Cousins, W. N. 1882, 16. 12 THE COMPANIES ACT, 1862. Effect of sec- tion. Sect. 12. member had subscribed his name and affixed his seal thereto, and there were in the memorandum 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. This section and the 16th section make the memorandum and articles of association, when registered, binding " on the company and the members thereof to the same extent as if each member had subscribed his name and affixed his seal thereto." A member is defined by sect. 23, and that section therefore explains and qualifies the 11th and 16th sections. If a person has actually subscribed and sealed the memorandum and articles he cannot allege want of notice of their contents, but the statute does not authorize any one to sign or seal those instruments till after he has become a member ; and therefore the cases (e) in which persons have on account of variation between the prospectus and memorandum been relieved of their shares are not at variance with this section, for the decisions in those cases rest upon the ground that the persons relieved never become members ; or, more strictly speaking, that the contract into which they had entered was ah initio voidable at their option. Any one who has without fraud taken shares cannot allege ignorance of anything contained in the memorandum or articles, merely because he has 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 impiite to him knowledge of their contents, so as to protect those who by fraud have induced him to that which, in the absence of fraud, -vfrould have precluded him from saying he was ignorant of their contents (/). 12. Any company limited by shares may so far modify the con- ditions contained in its memorandum of association, if authorized 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 (j3) by the issue of new shares of such amount as it thinks expedient, or to consolidate and divide its capital into shares of larger amount than its existing shares, or to con- vert its paid-up shares into stock (y), but, save as aforesaid, and save as is hereinafter provided in the case of a change of name (8), no alteration shall be made by any company in the conditions contained in its memorandum of association (e). (ct) ss. 50, 51. (/3) s. 34. Sch. I. Table A. (26)— (28). (7) ss. 28, 29. Soil, I. Table A. (23)— (25). This section is confined to the case of companies limited by. shares, as the provisions as to capital are, in the case of other companies, contained in the articles of association, and are therefore capable of alteration in the same manner as other regulations in those articles {g). That the word " regula- Power of cer- tain companies to alter memo- randum of association. (8) ss. 13, 20. (f) See ss. 50, 176, 196, as to alterations in the articles. Company limited by shares. (e) V. s. 35. (/) Directors, ijc, of Central liuilway Co. of Yenczuola v. Kisoh, L. R. 2 H. L. 99, 123 ; Downes v. Ship, L. R. 3 H. L. 343. (3) See s. 50. THE COMPANIES ACT, 1862. 13 tions " in sect. 50 is not confined to regulations in matters of detail but Sect. 12. extends to matters so important as regulations about capital may be inferred from the fact that sect. 176 provides that in case of unlimited companies formed under the Act of 1856, and whose regulations as to capital and shares are contained in the memorandum of association, the powers of sect. 50 shall extend to altering such regulations as to capital and shares, thus implying that in the case of unlimited companies formed under the Act of 1862 (whose regulations as to capital are therefore contained in the articles), such power of alteration already existed. It is to be observed that the opera- tion of this section (sect. 12) is limited to alterations in respect of capital, the object being, it is conceived, to put companies limited by shares on a level with other companies in this respect, so far as regards the particular matters specified in this section, and that with this exception any alteration by any company is forbidden. The further alterations allowed by Companies Act, 1862, s. 176, and Com- panies Act, 1867, ss. 8, 9, 21, will be found to be equally within the principle of this observation. The memorandum of association of the company is its charter, and defines Articles cannot the limitation of its powers Qi) and the destination of its capital («). A ^^*f"f objects statutory corporation created by Act of Parliament for a particular purpose 'memorandum. is limited as to all its powers by the purposes of its incorporation as defined by that Act. . . . The memorandum of association is under this Act, the fundamental and (except in certain specified particulars) the unalterable law of companies incorporated by virtue of it (h). But the doctrine that any act ultra vires the memorandum is incompetent to the company and void is to be applied reasonably, and anything which is fairly incidental to the company's objects as deflned is not (unless expressly prohibited) to be held as ultra vires (J). When you have a main purpose expressed, and ample authority given to effectuate that main purpose, things which are incidental to it, and which may reasonably and properly be done, and against which no express pro- hibition is found, may and ought prima facie to follow from the authority for effectuating the main purpose by proper and general means. You must ascertain first what the main purpose is, then what are the general powers, then what are the special powers, and then, supposing the act is not within the natural meaning either of the general or the special powers, whether it can be brought in as incidental to the main purpose and a thing reasonably to be done for effectuating it. This language, which was used by Earl Selborne (m) in considering whether an act done by the directors of a build- ing society was ultra vires or not, may be usefully applied to the case of incorporated companies. In Biche v. Ashbury Railway Carriage Go. (n) there was an article providing that " An extension of the company's business beyond or for other than the objects or purposes expressed or implied in the memorandum of association shall take place only in pursuance of a special resolution." Such a provision ia the articles is wholly nugatory, and void. It is an attempt to do the very thing which the Act prohibits— to arrogate to the company a power under the guise of internal regulation to go beyond the objects expressed or im- (h) Per Cairns, L.C., AsJibury Co. v. Q) A. G. v. Great Eastern Railway, 11 Eiche, L. R. 7 H. L. 668. Ch. Div. 449, 480 ; 5 App. Cas. 473 ; L. Sf (i) Guinness v. Land Corp. of Ireland, 22 N. W. BaUway Co. v. Price, 1 1 Q. B. D. 485. Ch Div 349 (»») Smalts. SmtiA,10App. Cas. 119,129. (k) Per Lo'rd Selborne, L. K. 7 H. L. 693. («) L. R. ? Ex. 224 ; 7 H. L. 653. 14 THE COMPANIES ACT, 1862. Sect. 12. plied in the memorandum (o). " The memorandum cannot be so qualified by the articles as to reserve powers to extend or change the business or objects of the company by means of a special resolution " {p). Contracts ultra The concurrence or assent of every individual member of the corporation vires the me- will not make valid as against the corporation a contract which is ultra vires morandum are ^j^g corporation {q). void ;— ^ contract made by the directors upon a matter not included in the memo- randum is ultra vires of the directors and of the company, and is not binding and cannot be on the company, and cannot be rendered binding even by the assent of every ratified. individual shareholder (r). The statute contemplates the protection not only of the shareholders for the time being in the company, but also of those who may hereafter become shareholders ; and further of the outside public, and in particular those who are or may be the company's creditors (s). And every Court, whether of law or equity, is bound to treat a contract which is ultra vires the memorandum as wholly null and void, and to hold that being wholly void it cannot be ratifled(0. Seous as to But it is otherwise with acts which are within the memorandum but ultra acts idtra vires vires the articles, or which, though being intra vires the articles, have not the articles. \,qqj^ done in the manner directed by the articles. To either of the latter oases the principle of the Agriculturist Co.'s Oases (a), of Phosphate of Lime Co. V. Green (x), and of Campbell's Case (y), may apply (z), for the acts are in such a case, either by alteration of the articles, or by following the directions of the articles, within the power of the company, if they take the proper steps to compass them (a). This is wholly different from an act ultra vires the memorandum which cannot, by any lawful course of action, or even by the assent of every individual member, be brought within the power of the company. Common Law The ground of the judgments of those learned judges who in Biche v. powers of cor- Ashlniry Co. (b) took the view which was not eventually taken by the House porations. gj Lords, seems to have been that the statute does not expressly take away that power of contracting which at common law would be incident to a body corporate ; that a company would, therefore, have power to enter into con- tracts ultra vires the memorandum, and that such a contract is therefore capable of ratification. The House of Lords, however, held (c), that the company was not by registration under the Act created a corporation with inherent common law rights, and the House has held the same as regards a company incorporated by special Act (d). In such a case, " the objects which the corporation may legitimately pursue must be ascertained from the Act itself," and " the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred, or derived by reasonable implication from its provisions " (d). The law as laid down in Ashbury Co. v. Eiche (e) apph'es to all companies created by any statute for a particular purpose (/). (o) Per Cairns, L.C., L. R. 7 H. L. 671. (.i-) L. R. 7 C. P. 43. Ip) -Per ArchibalJ, J., S. C, L. R. 9 Ex. (i/) 9 Ch. 1. 288. And of. Dent's Case, 15 Eq. 407 ; (;) See also Irvine v. Union Bank of Ibid. 8 Ch. 768. Australia, 2 App. Cas. 366. ((/) Wenlock V. River Dee Co., 36 Ch. (.i) Seo L. R. 7 H. L. 674. Div. 674, 681, n., 686, n. ; Asliburi/ Co. ^. (6) L. R. 9 E.\-. 224 niche, L. R. 7 H. L. 672. ' (e) L. R. 7 H. L. 653. (r) Ashbury Co. v. J/lche, h. R. 7 H. L, (rf) Wenlock v. Picer Dee Co., 10 App 663 ; Weiiloek v. h'iver Dec Co., 3G Ch. Cas. 354, 362. B'v- 675, n. (e) L. R. 7 H. L. 653. (s) Ashburi/ Co. v. Pivhe, L. R. 7 H.L. 667. (/) ^Yenlock v. Piver Dee Co., 10 Add (0 Ibid. 673. Cas. 354, 360. (k) See note to Table A., art, 19. THE COMPANIES ACT, 1862. 15 At common law a corporation created by charter can by its common seal Sect. 12. bind itself to anything to which a natural person could bind himself, and -— — ; can deal with its property as a natural person might deal with his own (g). between com- So that not only can the chartered company bind itself by acts as to which panics incor- no power is af&rmatively given by the charter, but even if the charter by povated by express negative words forbid any particular act, the corporation can <'|'*'''^^ *™ "y nevertheless at common law do the act, and if it does it, is bound thereby, and the result is only that ground is given for a proceeding by scire facias, in the name of the Crown repealing the charter ( Merchant Banking Co. of London v. Merchants' Joint Stock Bank (g), and Aus- tralian Mortgage Land and Finance Co. v. Australian and New Zealand Mort- gage Co. Qi), injunctions to restrain the defendants from using the name they had adopted on account of its similarity to that of the plaintiffs were refused. In Hendriks v. Montagu (i), at the instance of an unregistered company, Tlie Universal Life Assurance Society, an injunction was granted to restrain a proposed company from registering under the name of The Universe Life Assurance Association. In Madame Tussaud and Sons, Limited v. Tussaud (/c) a similar injunction was granted to restrain the registration of a company under the name of Louis Tussaud, Limited. In this case the defendant, Louis J. K. Tussaud, had never carried on a business such as the proposed company was to carry on, so that assuming that if he had assigned to the company an existing business theretofore carried on by him under the name of Louis Tussaud, the company might have styled themselves Louis Tussaud, Limited, this was not that case, and Louis Tussaud, although he might use his own name, could not give to the corporation the right to use his name where it did not repre- sent that they succeeded him in a business identified by that style. But if the name be not a fancy name (although in the case of a corporation its name may in most cases be a fancy name and not the statement of a fact (0), but bo the correct statement of a fact, the putting forth of such a state- ment does not become actionable by the fact that some persons may misappre- hend it. So when John Turton took his two sons into partnership and styled his firm " John Turton and Sons," a corporation whose name was " Thos. Turton and Sons, Limited," failed in holding on appeal (to) an injunction which had been granted according to Eendriks v. Montagu {i). In Eoby v. Orosvenor Lilrary Co., Limited (n), at the instance of an indi- vidual who had for ten years carried on business under the style of " The Grosvenor Library," an injunction was granted to restrain carrying on or advertising a similar business under that name. Before the Act, an injunction was [refused in London and Provincial Law Assurance Society \. London and Provincial Joint Stock Life Assurance Co. (o). Where each of two opposing sections of a trade union applied to register it under the Trade Union Act, 1871, by the name which the society had always used, the registrar was held entitled to refuse registration until the legal status of the applicants had been ascertained {p). 21. No company formed for the purpose of promoting art, Prohibition science, religion, charity, or any other like object, not involving companier'*'" holding land. (c) Street v. Union Bank of Spain, 30 (A) 44 Ch. D. 678 ; cf. Massam v, Ch. D. 156 ; Say v. Brownrigg, 10 Ch. Dir. Thorley's Cattle Food Co., 14 Ch. Div. 748. 294. (0 See Turton y. Turton, 42 Ch. Div. (d) 9 Jur. (N.S.) 843 ; 32 h. J. (Ch.) 128, 148. 664. (m) 42 Ch. Div. 128. (e) 33 Beav. 548 ; 83 L. J. (Ch.) 741. (n) 28 W. R. 386. (/) Before Jessel, M.R., 1878. (o) 17 L. J. (Ch.) 36. Ig') 9 Ch. D. 560. (p) Reg. v. Registrar of Friendly Socie- (A) W. N. 1880, 6. ties, L. R. 7 Q. B. 741. (0 17 Ch. Div. 638. 26 'J'HE COMPANIES ACT, 1862. Sect. 22. the acquisition of gain by the company or by the individual members thereof, shall, without the sanction of the Board of Trade, hold more than two acres of land ; but the Board of Trade may, by licence (a) 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) Sch. II., Form F. Companies other than those named in this section are unrestricted in the matter of holding lands (j). PAET II. disteibution of capital and liability of members of Companies and Associations undeb this Act. Nature of interest in company. Shareholder's right to transfer. Distribution of Capital. 22. The shares or other interest of any member in a company under this Act shall be personal estate (a) capable of being trans- ferred in manner provided by the regulations of the company (/3), and shall not be of the nature of real estate, and each share shall, in the case of a company liaving a capital divided into shares, be distinguished by its appropriate number (7). (a) Shares in a partnership owning land, Stannaries Act, 1869 (32 & 33 Vict. c. 19), as distinguished from a company corporate ss. 14, 15, as to mining companies in the or unincorporate (Myers v. Perigall, 2 D. M. Stannaries not registered under this Act. & G. 599), are an interest in land within the Infra, s. 178, as to certain other companies. Mortmain Act : Ashworth v. Munn, 15 Ch. (y) East Gloucestershire Sailway Co. v. Div. 363. Bartholomew, L. R. 3 Ex. 15 ; Table A., art. (/3) Sch. I. Table A. (8)— (16). See 8, note. As to the manner in which shares may be made transferable, whether by deed, instrument in writing, or delivery, see the note to Table A., art. 8, infra. By this section the ordinary incidents of partnership in respect of the introduction of new members are excluded, and the shares rendered freely transferable, subject only to any restrictions imposed by the articles. In the absence of any such restrictions the shareholders have the right of going into the ma,rket and disposing of and transferring their shares without the consent of directors, or shareholders, or anybody, provided only it is a hand fide transaction, as an out-and-out disposal of the property, without retaining any interest in them. If it is desired that such unlimited power of assignment shall not exist, then a clause must be inserted in the articles whereby the directors shall have the power of rejecting proposed members (r). (q) s. 18. (r) As to the effect and exercise of such a power, v. infra, p. 36. The strong ob- servations by Lord Westbury in Walton Williams' Cass (Kur. Arb.), L, T. 125; 18 Sol. J. 84 ; and /. Murgatroyd's Case (Eur. Arb.), L. T. 146 ; 18 Sol. J. 28 ; must, it is conceived, be read in connection witli the provisions of the deed of settlement of the company in which those cases arose. (». Head's Case (Eur. Arb.), L. T. 10.) THE COMPANIES ACT, 1862. 27 In the absence of any such provision the directors have no discretionary Sect. 22. power of refusing to register a transfer which has been bond fide made (s). Thus a shareholder may make transfers of his shares to nominees in such a way as to secure himself, under the regulations of the company, a maximum of voting power at a pending meeting, and the directors cannot refuse to register the transfers (t). The only obligation, in fact, on the transferor is to find a transferee legally competent to take the shares (u). Moreover, in the matter of dealing with his shares, a director is in general Where the as free as any other shareholder. He is not a trustee for the general body ?"*''^'"'W«i" of the shareholders, so as to be unable to deal with his shares in a manner director. prejudicial to the interests of his cestuis que trust, but in a vast variety of circumstances is just as free to deal with his shares — except, perhaps, his qualification (x), which he cannot deal with without giving up his director- ship — as any other person (y). So also a director may surrender his shares under a power in the articles authorizing surrenders by shareholders (2). But, since it is in his power and is also his duty to see that all formalities in respect of transfers are duly observed, any irregularities will be construed strictly against him (a). But notwithstanding wiat was said in JE.p. Brown (b), knowledge of all the entries in a company's books will not be imputed to a director (c). And if the formalities required for transfer have been substantially com- plied with, and the director's transferee have been accepted as a shareholder, not only by the directors, but practically also by the shareholders in having accepted the transferee as a director, then after a lapse of time the validity of the transfer cannot be impeached (d). On the question of the shareholder's right to transfer a large number of Cases conflict- cases have come before the Court, and the decisions having in some instances ing- turned on distinctions somewhat subtle and refined, are not at first sight easy to reconcile. There may, however, be drawn from the cases certain broad rules of con- siderable value for practical guidance, which may, perhaps, be shortly stated thus : — I. A shareholder may, although the company is in difficulty, or even in General rules extremis, effect a transfer of his shares, and such a transfer will be valid as to share- although made avowedly for the purpose of avoiding liability, although to^^^g^^/'.^''* made to a man of straw, although made for a nominal consideration, or although a valuable consideration be expressed but be not in fact paid, or even although the consideration be in fact paid to, not by, the transferee, provided the transaction be bond fide an absolute out-and-out disposal of the property, without any trust or reservation for the benefit of the trans- feror (e). (s) Smith, Knight, 4' Co., Weston's Case, Jessopp's Case, 2 De G. & J. 638 ; Ziiri's 6 Eq. 238, 4 Ch. 20 ; Gilberfs Case, 5 Ch. Case, 30 L. T. (1857) 185, cited infra. 559, 565 ; Cawley ^ Co., 42 Ch. Div. (z) Snell's Case, 5 Ch. 22. W9 ; Pinkett V. Wright, 2 Ruie, 120,130; (a) E. p. Brown, 19 Beav. 97; U. p. Poole V. Middleton, 29 Bear. 646, 650 ; Henderson, Ibid. 107 ; and see Syre's Case, and see the cases cited »n/m. 31 Beav. 177 ; of. E. p. Munster, 14 L. T. (<) Stranton Iron Co., 16 Eq. 559 ; Mof- 723 ; 14 W. E. 957. fatt T. Farquhar, 7 Ch. D. 591. (6) 19 Beav. 97. («) Lumsden's Case, 4 Ch. 31, 34. (o) Hallmark's Case, 9 Ch. Div. 329. . (a) Infra, note to s. 28. (d) Bush's Case, 6 Ch. 246 ; Murray v. (y) Gilbert's Case, 5 Ch. 559 ; South Bush, L. E. 6 H. 1-. 37 ; Taurine Co., 25 London Fishmarhet Co., 39 Ch. Div. 324; Ch. Div. 118. Cawley ^ Co., 42 Ch. Div. 209 ; and see (e) De Pass's Case, 4 De G. & J. 544, 28 THE COMPANIES ACT, 1862. Sect. 22. Tbansfee VALID. Consideration mis-stated. Incorrect address. II. But if the transaction be colourable and fictitious, and the transfer be merely nominal, and there be any trust or reservation of benefit in favour of the transferor, the transaction is then invalid and the transferor remains liable (/). III. If, further, the transfer be not open and bond fide, but be made with colour indicating an attempt to escape liability in a manner tainted with fraud, or be made upon an opportunity fraudulently obtained, it cannot be supported (g). And as a special head of this last rule in the case of companies to whose directors is, by the articles, given a discretion as to the acceptance of any proposed transferee, must be added the following, viz., that : — IV. If, in the case of such a company, the facts have been wilfully mis- stated to the directors, and if the facts were such that, in the opinion of the Court, the directors, if they had known them, would have, or ought to have, in the execution of their duty, refused to register the transfer ; or if — accord- ing to the decisions in the European Arbitration (h) — the transferor, without having made any misrepresentation, knew in fact that his proposed transferee was not a proper and solvent person («), then the transfer will be set aside, and the transferor rendered liable (k). I. As establishing the first rule the following cases may be cited : Be Pass's Case (I), where P., being aware that the company was in difficul- ties, handed over to his clerk for a nominal consideration shares, transferable by delivery. It was admitted that the transfer was made to escape liability, but the Court, being satisfied that it was an absolute and bond fide transfer out-and-out without any trust or reservation, held that P. was not a contri- butory. Slater's Case (m), in which the consideration was stated to be £25 paid for the shares, when in fact £30 was paid to the transferee as a consideration for his taking the transfer. The company was wound up about a year after- wards, and there being no evidence of fraud, the transfer was held valid. Weston's Case (m), in which a shareholder executed a transfer to a transferee who gave an address at which he was only an occasional visitor. The directors had not by the articles any discretion as to accepting a proposed transferee, but they refused to register the transfer on the ground that the transferee's and cases cited infra ; but as to mining companies in the Stannaries, see 32 & 33 Vict. c. 19, s. 35, cited post. Lord West- bury in tlie European Arbitration lield that a transferor who under such circumstances had not completed the transaction by a legal transfer before the commencement of the winding-up, had no right to relief, Bead's Case (Eur. Arb.), Eeil. 19; L. T. 10 ; Lloyd's Case (Eur. Arb.), Eeil. 35 ; L. T. 25 ; 17 Sol. J. 46 ; and see £. p. Parker, 2 Ch. 685. But this principle was not recognised in ^Yeston's Case, 6 Eq. 238 ; 4 Ch. 20. Such completion of course may be unimportant where there is no such objection to the transferee, Pentinck's Case (Eur. Arb.), L. T. 99 j 17 Sol. J. 807, et infra. (/) I/yam's Case, 1 D. F. & J. 75, and cases cited infra ; and sec s. 30. (g) Costello's Case, 2 D. F. and J. 302, which Turner, L.J., said lay between De Pass's Case and Thjam's Case ; E. p. Parker, 2 Ch. 685 ; South London Fishmarket Co., 39 Ch. D. 324, et infra. (/t) V. infra, p. 34. (i) Qucere, the requisition in Joshua Miirgatroyd's Case ( (Eur. Arb.), L. T. 146 ; 18 Sol. J. 28) that the transferor should swear affirmatively that he knew the trans- feree to be a man of substance cannot surely be maintained. (K) E. p. Eintrea, 5 Ch. 95, et infra. (0 4 De G. & J. 544. This case is said to have been compromised in the House of Lords. As other early cases, see Jessopp's Case, 2 De G. & J. 638 ; Libri's Case, 30 L. T. (1857) 185 ; in the former the trans- feror was a director, in the latter the chair- man of the company ; Garstin's Case, 10 W. E. 457 ; 6 L. T. 374. (m) 35 Beav. 391; 14 W. E. 446; 14 L. T. 95 ; 12 Jur. (N.S.) 242 ; 35 L. J. (Ch.) 304. (n) 6 Eq. 238 ; 4 Ch. 20. THE COMPANIES ACT, 1862. 29 address was incorrectly given. It was admitted, on the one hand, that the Sect. 22. transferor intended to part with the entire interest in his shares, and on the other, that he executed the transfer with the intention of escaping liability. It was held that the directors were bound to register the transfer, and the Court in the winding-up took the name of the transferor off the register. Bishop's Case (o), in which a number of minute circumstances were brought Description forward in order to attempt to shew a trust or reservation of benefit to the " gentleman. ' transferor. There was no evidence that the company was in a failing state at the time of the transfer, and in the opinion of the Court no trust for the transferor was established. A description of a man of small or no means, living in a house worth only £3 a year, as a " gentleman," is not, under such circumstances, material as a misdescription. The transfer was held valid. Hakim's Case (o), in which the transferee was a clerk of the transferor's firm. Transferee There was a stipulation that the transferee should not part with the shares for "lerk of trans- six months. After the transfer the certificates were given back to the custody '*"'■ of the transferor or of his firm, but this was held perfectly consistent with the restriction placed upon the transfer, and the transaction was held valid. Battle's Case (p), in which the transfer was to a man of straw, by a transfer Description, giving a false description and address of the transferee, and purporting to address, and be for valuable consideration, whereas no consideration was in fact paid. ^"'''"^'■'^ "™ But seeing that the directors had not by the articles any power to disallow transfers, and that the transferor and transferee deposed that no trust or benefit was reserved for the transferor, it was held that the transfer was valid. Harrison's Case (q), in which H., to escape liability, transferred his shares Transfer with for a nominal consideration to his clerk. The directors, having by the guarantee as articles power to refuse to register a transfer, declined to register the transfer *" unless H. would enter into a certain guarantee (the precise terms of which were disputed) as to payment of a call or calls. H. accordingly gave the guarantee, and the transfer was registered. It was held that the bargain with the directors was good, and the transfer valid; and that whatever might be H.'s liability on his guarantee, he was not liable as a contributory. Chappell's Case (r), where the directors had no power to reject a transfer Transfer with unless they found a substituted transferee, and they sanctioned a transfer of f.S.) 803 ;) where he was the solicitor of the com- Munt's Case, 22 Beav. 55. 42 THE COMPANIES ACT, 1862. Sect. 22. Transferor in- debted to the company. Transfer of shares as fully paid up. Infant transferee. However, in Singer's Case (Ji), in a company whose articles contained a clause in large terms empowering the directors to act as they should deem expedient, a shareholder who, being dissentient to a certain proceeding of the company, was allowed to transfer some of his shares to a nominee for the company, was held not to be a contributory in respect of the shares transferred. This was equivalent to a forfeiture. Where there was given to directors a power to purchase shares in the company, it was held (assuming the power to be legal) that it was a special power not within the scope of the duties of, nor capable of being delegated to, the general manager ; and the shares having been purchased and trans- ferred to the directors without a due exercise of the power, the principle of Boyal British Bank v. Turquand (i) did not apply in favour of the transferor (k). In a company, whose articles provided that a transfer might be refused in a case where the transferor was indebted to the company (I), a transfer by a holder who had not paid his calls was duly passed and registered; after thirty-four days the secretary, finding that the registration had been allowed by mistake, cancelled the transfer without the authority of the directors. The company being subsequently wound up, it was held that the transfer, having been passed under a mistake, was invalid, and the transferor was placed on the list of contributories (m). In another company, whose articles contained a similar provision, A. executed a transfer of his shares, and sent it to B. to be left with the secretary for registration, together with £320, being the amount due for calls. B. appropriated the £320, and tendered to the company in payment of A.'s calls certain overdue coupons, on some of which equities were attaching as between himself and the company. It was held that this was not a pay- ment, or anything equivalent to a payment, of the amount due from A. for calls, that consequently the company were not bound to register the transfer, and that A. remained liable for the shares (n). Many cases have arisen in which shares registered as fully paid up have, under the Companies Act, 1867, sect. 25, proved to leave their holders liable for calls. If the original holder of such shares transfer them as fully paid up, a suggestion was thrown out by Mellish, L.J., in Spargo's Case (o), whether in the hands of the transferee they are not to be treated as fully paid, and whether the liability on the shares does not remain in the transferor (o). It is now clearly settled that in such a case the shares must, in the hands of a transferee who has purchased without notice of the circumstances under which they were issued, be treated as paid (p). If the transfer be to an infant, who remains an infant at the time of the winding-up, the transferor remains liable, although he was not aware of the infancy of the transferee, and although the transfer has been accepted and registered by the company. And the infant will not lose his right to be taken off the list by some delay in making application for that purpose (j). (7j) W. N. 1869, 206. (0 r>E. &B. 248; 6 E. & B. 327. (k) CartiiwU's Ca.v, 9 Ch. 691. (0 32 & 33 Vict. 0. 19, =.. U, as to companies in the Stannaries. (m) Anikrson's Case, S Eq. 509. («) Jfcnri/ IIoMai's C'ax,; 8 Eq. 444. (o) 8 Ch. 407, 410. (p) British Farmers Co., Nicolls' Case, 7 Cli. Div. 533; Bur/;insluiw ,: Xicul/s, 3 App. Cas. 1004; and see note to Comp. Act, 1867, s. 25. (?) Litchfield's Case, 8 De G. & Sm. 141; Scid's Case, 24 Beav. 318; Mann's Case, 3 Ch. 459, n. ; Capper's Case, 3 Ch. 458 ; Delmar's Case, Hart's Case, 38 L. J. (Ch.) 85 ; 17 W. R. 21 ; 19 L. T. 304 ; Sassoon's Case, 20 L. T. 161, 424 ; Edwards' Case, W. N. 1869, p. 211, where the in- fant was a female, and had since married ; W. H. Bentinek's Case (Eur. Arb.), L. T. 143 ; 18 Sol. J. 224; where the infant was THE COMPANIES ACT, 1862. 43 So, where a father, being the holder of certificates of a company, the Sect. 22. shares in which passed by delivery of the certificates, gave them to his son, an infant, and on the company being registered under the Companies Act, 18G2, the son sent in the certificates and exchanged them for shares, and the father bought other shares in the name of his son, and they were so registered, the father was, in the winding-up, held liable as a contributory in respect of the shares (r). So, where a father purchased shares in tlie name of his infant son, and took the receipt for the purchase money and the transfer in his son's name, he was treated as acting under an alias and made personally liable as contributory (s). And although the infant have, since the transfer to him and before the winding-up, sold and transferred some of the shares, this will not relieve the shareholder who transferred to the infant from liability in respect of the shares standing in the infant's name at the time of the winding-up (f). A transfer to an infant is, however, not void, but voidable (u), and apart from the effect, whatever it may be, of the Infants Belief Act, 1874 (x), the infant may confirm the transaction on attaining his majority if no winding-up order has been made before that time. Thus confirmation may be made by acquiescence; as where an infant transferee, having become adult nearly two years before the commencement of the winding-up, and having during that time taken no steps to repudiate the shares, though proceedings had been taken to enforce calls, was held to be a contributory (y). And if a winding-up order has been made before he comes of age, he may still confirm the contract, provided the official liquidator accept him as a shareholder ; but some distinct act must be shewn to make him liable. The mere appearance of solicitors for him, together with others, at Chambers, in opposition to a call, does not amount to confirmation or acquiescence (z). Again, where the infant transferee paid, while still an infant, a call in the winding-up, and after attaining his majority entered into some negotiations for a compromise of his liability, the transferor was nevertheless, on the application of the liquidators, made contributory (a). And if the infant transferee be still an infant at the date of the winding-up, the official liquidator may refuse to accept him as a shareholder, although after coming of age the infant be willing to confirm the transfer (b). If, however, the company, having become aware of the infancy of the transferee, do not, as in Capperh Case (c), give the transferor notice that the transferee is an infant, and that they hold him liable, but conceal the fact from the transferor, and then after a length of time (as, e.g., three and a half years) come upon the transferor to make him liable, they will be pre- cluded by laches from so doing {d). If the infant transferee attain his majority before the winding-up order, and do not repudiate the shares, but do anything amounting to confirmation of the contract, the transfer cannot afterwards be objected to on the part of the official liquidator. made to repay diTidends received while the 454; 8 Ch. 266. company was a going concern. (x) 37 & 38 Vict. c. 62. (r) Weston's Case, 5 Ch. 614. {y) Mitchell's Case, 9 Eq. 863. (s) Bichardson's Case, 19 Eq. 588. Con- (z) Wilson's Case, 8 Eq. 240. trast London, Banihay, Sfc, Bank, 18 Ch. D. (a) Cheetham's Case, W. N. 1869, 201. 581. (6) Castello's Case, 8 Eq. 504 ; Symons' it) Curtis' Case, 6 Eq. 455. Case, 5 Ch. 298. («) Immsden's Case, 4 Ch. 31 ; see this (c) 3 Ch. 458. well illustrated in Gooch's Case, 14 Eq. (d) Parson's Case, 8 Eq. 656. 44 THE COMPANIES ACT, 1862. Sect. 23. Vendor's right to indemnity ; in case of transferee being an infant. Mode of transfer. Payment into Court. Definition of '* member." Register not conclusive. Thus, where L. transferred fifty shares to H., an infant, who was also the transferee of a largo number of other shares in the same company, and H., attaining his majority more than five months before the winding-up order, in the interval transferred some of the other shares, but neither repudiated nor disposed of the fifty shares, the application of the official liquidator to substitute L.'s name for that of H. on the list was refused (e). If an infant transferee have, on attaining his majority, repudiated the shares, and his repudiation have been accepted by the company, any sub- sequent act by which he appears to acknowledge his liability must be very strong indeed in order to act as a repudiation of that repudiation (/). As to the vendor's right to indemnity from a transferee who has neglected or been unable to complete and register the transfer, see sect. 35, infra. A person who purchases shares and has them transferred into the name of an infant may be made liable to indemnify the transferor. Thus, where A. sold shares to B., and B. had them transferred into the name of his son, who was a boy at school, upon bill filed by A., praying that it might be declared that the son was a trustee for his father, or that the father purchased the shares on his own account, and not as agent for the infant, and for indemnity, a decree was made as prayed (^). If in such a case it appear by the evidence that the father has placed the shares in his son's name, not as trustee for himself, but for the son as bene- ficial owner, on an application to rectify the register, the vendor's name, and not that of the father, must be put on the list ; but this cannot, of course, in any way prejudice the right of the vendor to an indemnity from the father in respect of the liability on the shares (70- See further sect. 35, infra, " Indemnity." As to the way in which transfers may be made, and the effect of a transfer invalid as a deed, or informal, or irregular, see infra, the notes to Table A., art. (8). When stock in a public company is paid into Court, the transfer should be expressed to be to the account of, and not to, the Paymaster-General. Stock or shares on which there is any liability cannot be transferred to or to the account of the Paymaster-General («'). 23. The subscribers of the memorandum of association of any company under this Act shall be deemed to have agreed to become members of the company whose memorandum they have sub- scribed, and upon the registration of the company shall be entered as members on the register of members hereinafter mentioned (a) ; 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 (|3), shall be deemed to be a member of the company. (a) s. 25. (/3) See Portal v. Emmcns, 1 C. P. D. 201, 1 C. P. Div. 664 ; Tufnell's Case, 29 Ch. Div. 421. Although it is, as a matter of policy, of very great importance to make the register as conclusive as possible, yet it certainly is not and cannot be (e) Luinfulcn's Case, 4 Ch. 31 ; and see ilitcheU's Ciiso, 9 Eq. 363; as to an infant utlotti'c, SCO JjJbbett's Case, 5 Ch. 302, and s. 23. (/) Baker's Cisc, 7 Ch. 115. Ig) Nio/ialls v. Furneau.r, W. N. 1869, p. 118 ; and see Weston's Case, 5 Ch. 614. (A) Maitland's Case, 38 L. J. (Ch.) 554 ; Edwards' Case, W. N. 1869, 211. See, however, Richardson's Case, 19 Eq. 588. (i) Jie Stephens, 8 Ch. 465 ; see Fovah V. Walker, 15 Eq. 316. THE COMPANIES ACT, 1862. 45 absolutely conclusive on the question of who are the parties responsible to Sect. 23. the creditors of the company (k). The subscribers of the memorandum of association are liable, whether they have been entered on the register of members or not Q). As regards other persons, the statute makes it a con- dition precedent to membership that their names shall have been entered on the register (I). But it does not follow that a person who has agreed to become a member can escape liability because his name has not been entered on the register. For the Act supplies as well before (s. 35) as after (s. 98) winding-up the means of rectifying the register, and if a person ought to be, but is not on the register, he cannot escape liability on that ground, for he may be put on by rectification (m.). Again, the register may, under sect. 35, be purged of a number of persons whose names appear upon it if it be shewn that their names have been placed there without any authority or agreement on their parts, or in case of default or delay on the part of the directors, and this notwithstanding a winding-up order has been made (n) ; and, on the other hand, the names of other persons may be sub- stituted for them (o). In Portal v. Emmens (p), the Court of Common Pleas, in a judgment delivered by Lindley, J., said of the Companies Clauses Act : — " The true view of the Act we take to be as follows : — 1. If a proper register is kept that register is prima facie evidence that a person whose name is on it is a shareholder, see sect. 28 (q). 2. If in addition it be proved that such person has become by subscribing to the prescribed sum or otherwise entitled to a share in the company, the evidence that he is a shareholder is conclusive. 3. If there be no register, or if the register is so defective as to be inadmis- sible in evidence, other evidence must be adduced to prove that a person is a shareholder (r)." It is conceived that this is equally true of this Act. There is nothing in the Act of Parliament to prevent there being different Different classes of members, e.g., in a mutual assurance society, members who are classes of shareholders and primarily liable for the debts, and participating policy- ii"=mbers. holders not holding shares and only secondarily liable (s), or not liable at all (t) ; or again in a life and fire insurance society, members who hold life shares and are liable only on life policies, and members who hold fire shares and are liable only on fire policies (u). Before the Act a partnership might have been formed upon any such terms, and inasmuch as sect. 4 now renders illegal partnerships of more than twenty members unless registered, then if the Act did not allow of such a company, it would have indirectly prohibited the future formation of a species of partnership which was perfectly legitimate before (x). The members of the company are defined by this section, and are either who are (1) subscribers of the memorandum of association ; or (2) persons who have members. agreed to become members. (A) See s. 37. section and under s. 35. (0 TufneB's Case, 29 Ch. Div. 421; (p) 1 C. P. D. 201, affirmed 1 C. P. Div. Nanney v. Morgan, 35 Ch. D. 598. 664. (m) See e.g. Winstme's Cass, 12 Ch. D. (?) Cf. Comp. Act, 1862, s. 37. 239, 249. (r) See 1 C. P. D. 212. (n) s. 98. (s) Winstone's Case, 12 Ch. D. 239. (o) Seese River Silver Mining Co. v. (t) Gt. Britain Mutual Soo., 16 Ch. Div. Smith, L. E. 4 H. L. 64, 77, 80; and see 246, where however there was only the e.g. Whittet's Case, 2 De G. & J. 577 ; E. one class of policy-holders not liable. See p. White, 16 L. T. 276 ; Lyster's Case, 4 s. 38, note. Eq. 233 ; Heritage's Case, 9 Eq. 5 ; Painter's («) Bath's Case, 8 Ch. Div. 334 ; and see Case, I. R. 2 Eq. 573 ; E. p. Fox, 11 W. E. ». 38, note. 577; 8L. T. 223; i'S.'R. 1; Beck's Case, (_x) Winstone's Case, 12 Ch. D. 239, 9 Ch. 392, 394; and cases cited under this 252. 46 THE COMPANIES ACT, 1862. Sect. 23. A person who signs a memorandum of association for any number of shares thereby contracts to become a shareholder in respect of that number S0BSCRIBER OF THE Memo- °^ shares, and becomes absolutely bound to take those shares from the com-- BANDUM. pany and pay a proper consideration for them ; and so long as there are shares that can be allotted to him (y) he must fulfil that obligation. If no allotment has been made to him, and all the shares have been allotted to other persons, the subscriber is no longer liable; and the fact that by subsequent forfeiture the company has afterwards become possessed of shares which might have been allotted to the subscriber makes no difference (z). The principle here is clear : the subscriber is liable only by virtue of the contract, which under this section arises immediately upon his signature. By allotting all the shares elsewhere the company has put it out of its power to perform the contract on its part, and can therefore no longer enforce it. Similarly where persons applied for a large number of shares and allot- ments were made to them, but their names were not put on the register and they never received any certificates nor made any payment, and subsequently under altered arrangements all the shares were allotted to other persons, the original allottees were not liable as contributories (a). If the subscriber omits to write opposite his name the number of shares he takes, semhle he will be a subscriber for one share (J). The fact that no shares have ever in fact been allotted to a subscriber of the memorandum, and that his name has never been put on the register, will not relieve him (c). Under Table A. (d), where applicable, the subscribers of the memorandum are to be deemed to be directors until directors are appointed, and special articles often adopt a similar provision. Where this is the case it is the subscriber's duty to enter his own name on the register (e) ; but whether he have acted as a director (/) or not (g), the fact that his name has not been entered does not relieve him from the liability to take shares. The subsequent allotment of a larger number of shares than that for which he subscribed the memorandum will cover the number for which he subscribed, and satisfy the contract (h) ; and where he subscribed the memo- randum for fifty and subsequently made written application for a hundred, and a hundred were allotted to him, he was not liable for a farther fifty (i). But the shares so allotted must not be nominally paid-up shares (k), but shares in respect of which the subscriber's contract, viz., to take and pay for the shares, is to be carried out by payment either " in meal or malt " (J). The contract is to take the shaves from the company, and the obligation is not satisfied by taking them from some one else (m). If the subscriber take (?/) Tyddyn Sheffrey Slate Quarries Co., L. T. 838 ; Sidney's Case, 13 Eq. 228. 20 L. T. 105 ; see Drummond's Case, 4 Ch. (A) Freen sJ- Co., 15 W. R. 166 : 15 1 T 772, 776, 780 ; Evans' Case, 2 Oh. 427. 406 ; Drummond's Case, 4 Ch. 772. (z) Mackley's Case, 1 Ch. D. 247; Kip- (i) Oilman's Case, 31 Ch. D. 420. ling V. Todd, 3 C. P. Div. 350. (A) Migotti's Case, 4 Eq. 238 ; and other (a) TufneU's Case, 29 Ch. Div. 421. cases, infra. (V) s. 8. Q) V. infra, " Payment in money's (c) Evans' Case, 2 Cli. -J 27 ; London worth." Coal Co., 5 Ch. D. 525. ('/. Foi-tal v. (m) Migotti's Case; 4 Eq. 238 ; Bennet's Emmons, 1 C. P. D. 201, 219. Case, 15 W. E. 1058 ; 16 L. T. 475 ■ Tooth's (d) See Tahle A. art. (53), infra. Case, 19 L. T. 599 ; W. N. 1868, 270 • (e) Hall's Case, 5 Ch. 707 ; Forbes' Case, Forbes and Judd's Case, 5 Ch. 270 : Dent's 19 Eq. 353. Case, 15 Eq. 407 ; 8 Ch. 768 : Eraser's Case (/) Evans' Case, 2 Ch. 427 ; Tooth's 28 L. T. 158 ; 21 W. R. 642 : 42 L J fCh 'i Case, W. N. 1868, 270 r 19 L. T. 599. 358. ^ -* (g) Loviok's Case, 40 L. J. (Ch.) 180 ; 23 THE COMPANIES ACT, 1862. 47 the shares in the names of other persons, the register may be rectified by Sect. 23. putting his name on for the whole number of shares (n). No lapse of time will relieve the subscriber from his liability (o); the only way of getting rid of it is to take the shares, and then make a valid transfer (p), unless indeed the contract has been put an end to by the allot- ment of all the shares to others (q). Where the subscriber signed, as he said, conditionally in the belief, founded on the statement of the solicitor of the company, that unless two-thirds of the capital were subscribed he would be entitled to withdraw, and two- thirds not having been subscribed, he did withdraw with the consent of the directors, and was never afterwards treated as a member, nor was his name ever placed on the register ; he was, nevertheless, four years after- wards, made a contributory in the winding up (p). If the directors have power to accept a surrender of shares, and do accept a surrender from a subscriber to the memorandum, this will be valid, and will relieve him from his liability, although his name has never in fact been entered on the register (>•) ; but if the transaction be not a surrender and forfeiture, but a dealing in shares which is ultra vires the directors, the subscriber will, of course, remain liable (s). Thus where before any allotment disputes having arisen between the subscribers, it was resolved that the shares subscribed for should not be allotted to certain of the subscribers, those subscribers were nevertheless liable. For the directors had no power to cancel the contract to take the shares (if). The articles contained no power to accept surrenders. The contract to which the subscriber is irrevocably bound by subscription is to contribute a certain amount of capital, but he is not irrevocably bound as to other matters which are not by the Act required to be stated in the memorandum. Thus if he sign the memorandum for a certain number of preference shares, and by subsequent agreement with the company he takes ordinary shares instead, his obligation is satisfied (u). The contract on the part of the subscriber is, to take the shares and pay a Payment in proper consideration for them, but (apart from Companies Act, 1867, s. 25) money'^ , it is not necessary that the payment should be in money, it is sufQcient that ^"^ ^^'' he gives money's worth (y). That is to say, the payment for shares may be made by the present transfer of property from the shareholder to the company, or the consideration may be a debt due from the company to the shareholder. If the consideration be a debt from the company to the subscriber, it will Consideration, make no difference at what time the debt was contracted; but the only » debt due question is, whether there is, at the time when the shares are to be paid for, (.),'Ji^,an! a valid debt due from the company to the subscriber and immediately pay- able, so that the demands can be set off against each other (z). (n) IlTokes' Case, 16 W. E. 413, 1135 ; 37 (t) London Coal Co., 5 Oh. D. 525. L. J. (Ch.) 470, 624. («) Duke's Case, 1 Ch. D. 620. (o) Leviok's Case, 40 L. J. (Ch.) 180 ; 23 (x) See also note to Table A. art. (4). L. T. 838 ; where twenty months had ((/) DrummoncCs Case, 4 Ch. 772 ; PelVs elapsed; Sidney's Case, 13 Eq. 228, fire Case, 5 Ch. 11, varying the decision of years ; Tooth's Case, W. N. 1868, 270 ; 19 Eomilly, M.R., 8 Eq. 222 ; Baglan Hall L. T; 599, seven and a half years. Colliery Co., 5 On. 346 ; Schroder's Case, 11 (i?) Sidrtey's Case, 13 Eq. 228, referring Eq. 131 ; Jone^ Case, 6 Ch. 48 ; Key's Case, to Levick's Case and Migotti's Case, v. 16 W. E. 1103, in which the decision was supra. similar to that in Pell's Case, supra, before (j) See notes (z), (a), p. 46. the Master of the Bolls. The agreement, (r) Snell's Case, 5 Ch. 22. however, in Key's Case was not binding. (s) Hall's Case, 5 Ch. 707, where a deed of (z) Forbes and Jndd's Case, 5Ch.270,272. release and indemnity was held ineffectual. See Baglan Hall Colliery Co., 5 Ch. 346, 356. 48 THE COMPANIES ACT, 1862. Sect. 23. If ttere be a contract of such a nature that on action brought by the '- ^ company it could not be set aside, a payment for shares in kind according to that contract is legal (a). On these principles a subscriber who was a shareholder in a former company which transferred property to the company (b) ; a subscriber who, according to an agreement in the articles, took paid-up shares as the purchase-money for a business which he had sold to the company (c) ; subscribers who being partners, formed themselves into a company and sold their property, in fact, to themselves (d); shareholders who paid in Confederate bonds, which at the time were valuable, but afterwards turned out worthless (e), have been held to have discharged the payments on their shares. The test in such cases is whether, if the company had been prosperous, the subscriber could have compelled the allotment to himself of the shares for which he had subscribed in addition to those which he had taken in payment for property transferred to the company. In all the above cases it must be taken to have been shewn that the shares subscribed for and the shares agreed to be taken in payment were the same (/), or at least that the matter had been so dealt with that neither the company nor the subscriber could deny that they were the same (g) ; for it is clear that payment can never be made by the set-off of another set of shares to which the subscriber is entitled. Such a set-off would be in effect a cancellation of capital (h). So in Maynard's Case (i), payment by the subscriber was deemed to have been made only because, on the construction of the documents, payment by the company was to have been in cash. Provisions in I^ being competent to a subscriber to make payment for his shares in any tlie articles as honest way by anything which is equivalent to actual payment (^), there is to payments, jjq inconsistency between a memorandum which is general in its terms and articles which state that payment for the shares subscribed for is to be made in a particular way according to a contract which is referred to in the articles (I) : but a clause in the articles providing that such shares shall not be paid for at all, but shall be allotted as fully paid up, is simply inoperative and void (m). Payment, What the subscriber has to shew is, that he has taken the shares from, whether made, and has made payment to, the company. It is idle to allege that there have been allotted to him, as the nominee of another person, shares upon which that other person has made payment («), and, of course, an alleged pay- (a) Fer Giffavd, L.J., In re Baglan Hall Colliery Co., 5 Ch. 346, 354. (6) Drummond' s Case, 4 Ch. 772. (o) Joms' Case, 6 Ch. 48 ; Fell's Case, 5 Ch. 11 ; but per James, L.J., quecre, whether the decision of Romilly, M.R., 8 Eq. 222, by which the subscriber in this case was made contributory, and credited with the value of the property handed over, was not right; see 6 Ch. 49 ; 15 Eq. 411 ; 8 Ch. 280. (d) Baglan Hall Colliery Co., 5 Ch. 346. (e) Schroder's Case, 11 Eq. 131. (/) See per Selborne, L.C., Fothcnp'/l's Case, 8 Ch. 270, 276 ; c/. Dulx's Case, 1 Ch. D. 620. (g) See jier L. JJ., S. C, 8 Ch. 280, 281. (A) Fothcrgill's Case, 8 Ch. 270 ; Den^s Case, 8 Ch. 768, 777. Qvwre, whether by n contract registered under Comp. Act, 1867, s. 25, this could be done. See note to that section. (»') 9 Ch. 60. Qucere, on this point Coatcs' Case, 17 Eq. 169, stands alone. The registered agreement was to sell for s/iares (the cash payments were otherwise accounted for), and it did not upon that agreement appear that these shares were the same as the shares subscribed for. See note to Comp. Act, 1867, s. 2.5. (k) Denfs Case, 8 Ch. 768, 776. (0 Per Giffard, L.J., Baglan Hall Col- liery Co., 5 Ch. 346, 354 ; and see Dent's Case, 8 Ch. 768, 776. Anderson's Case, 7 Ch. Div. 75. (m) Dent's Case, 8 Ch. 768. (n) Forbes and Judo's Case, 5 Ch. 270 ; Fraser's Case, 28 L. T. 158 ; 21 W. E. 642 • 42 L. J. (Ch.) 358, et supra. THE COMPANIES ACT, 1862. 49 ment, which was, in fact, a mere juggle and handing backwards and forwards Sect. 23. of cheques between the promoter, the subscriber, and the company, is not payment (o). But, semble, if A., being a subscriber of the memorandum, is a creditor of B., to whom the company is indebted, and A. accepts from B. payment in shares which are issued to B. as paid up in respect of the debt so due to B. from the company, such shares may be attributed to the subscription of the memorandum, and be held paid up, the effect being to discharge the company from an equiYalent amount of debt due from the company to B. (p). In all the foregoing cases that which has been under consideration has Agreement to been the present payment for shares in money's worth, for, semble, the ''^<=^'™ ^ th company cannot contract that the calls in respect of what remains to be paid up shall be set off against goods to be from time to time supplied by the shareholder, instead of being paid in money (q). The decisions above noticed must, in cases falling under the Companies Comp. Act, Act, 1867, be taken subject to the provision of the 25th section of that Act ^^^^' as to payment in cash. The effect of this section will be found discussed in the note appended to it. The subscriber's obligation to take shares is not satisfied by the allotment Allotment of to him at a subsequent period of fully paid-up shares to which some one P^"i-"P shares, else is entitled (r), or by anything short of his taking and paying to the company (s), either in money or money's worth, the amount payable on the shares. The same shares cannot be made to do double duty, and shares already allotted and paid for by one transaction cannot, by coming into the hands of a subscriber, discharge that which is the obligation incurred by subscription, viz., the finding a certain amount of capital for the company. It has been held that if a person subscribe the memorandum for ordinary shares and also for shares which are described on the face of the memoran- dum as "paid up," he will not be liable as a contributory in respect of the latter shares, although they have not in fact been paid up, because the memorandum itself gives notice that there is no liability on those shares (t). If the deed of assignment to the company of property, given as the con- Evidence of sideration for paid-up shares, states only a nominal consideration, this will ^f^^ considera- not prevent the admission of evidence aliunde,to shew the real consideration (u). nominal con- After F. had signed the memorandum and articles of association of a sideration company, an alteration was made in the articles. It was held that the stated, articles were consequently not binding on P., that the articles and memo- Alteration in- randum constitute one instrument, and that F. was therefore not liable as a „,^ articles contributory (x). scription. .. But an alteration made in the articles under sect. 50, after a person has applied for shares, but before allotment, being an alteration by which the objects of the company are not altered, does not invalidate the allotment (y).. (o) Leslie's Case, 11 Eq. 100 (where see Case, 24 Beav. 639; and cf. Finance Co.,.. some remarks by Stuart, V.C, on the 19 L. T. 273 ; Derham's Case, W. N. 1867, 8. earlier cases), 6 Ch. 469. (s) And not to some one else, Fraser's.- (p] Per Selborne, L.C., Dent's Case, 5 Case, W. N. 1873, 53; 28 L. T. 158 ; 21 Ch. 768, 777. But, qucere, is not this W. K.'642 ; 42 L. J. (Ch.) 358. making the same shares do double duty ? (i) Baron de Bemlle's Case, 7 Eq. II. (j) Pellatt's Case, 2 Ch. 527; and see See b.\so Baglanffall Colliery Co., 5 Ch.3i6, Comp. Act, 1867, ». 25, and Table A. art. 350, n. (4), note. («) Zeif child's Case, 1 Eq. 231. (r) Migotti's Case, 4 Eq. 238 ; Forhes («) Felgate's Case, 2 D. J. & S. 456 ; and and Judd's Case, 5 Ch. 270 ; Sennet's Case, see Peel's Case, 2 Ch. 674. 15 W. R. 1058 ; 16 L. T. 475 ; Nickoll's (y) Lyon's Case, 35 Beav. 646. 50 THE COMPANIES ACT, 1862. Sect. 23. Signature of duplicate of memoranctum. Signature by agent. Agreed to BECOME A Member. 1. Directors. Qualification. Semhle, the signature of a person attached to a duplicate of the memo- randum of association, and not being the copy which is actually registered, is sufScient to bind him (z). Where P., the owner of a mine, approved of and acquiesced in the publi- cation of a prospectus for the formation of a company to work the mine, in which he was represented as a director and holder of 1000 shares, and he signed copies of the memorandum and articles of association, in which he was also represented as a director and holder of 1000 shares, but the copies which were actually registered did not bear his signature, he was held to be a contributory, although no allotment of shares or register of shareholders had been made (a). In the same com{5any S. signed a copy of the memorandum of association, but was held, under all the circumstances, not to be liable (J). Signature of the memorandum by an agent verbally authorized is suflS- cient (c). But signature by an unauthorized agent is, of course, ineffectual (d). A " member " is by this section defined to be anyone who has " agreed to become a member and whose name is entered on the register." As regards subscribers of the memorandum the section at once sweeps them within the definition by enacting that they shall be deemed to have so agreed. As regards any other person, to fix him as a member it is necessary to shew that he has agreed to become one. " A man may become a contributory to a company by his acts, although he has not made himself legally a member of it " (e). First, as to directors acting under articles which contain a director's qualification clause. The articles of many companies contain a clause prescribing a certain minimum number of shares as the qualification of a director (/). The acceptance of an oflBce to which the condition of holding a certain number of shares is attached may manifestly be evidence of an. agreement to obtain the requisite number of shares. The same principle applies to the case of an agent for the company where it is part of the original arrangement between the agent and the company that the agent shall take shares (g). The basis of the cases on qualification shares is the existence according to the constitution of the company of a qualification affixed to the oflce of a director. An entry in the books that at a board meeting it was proposed -and seconded that the future qualification of the directors be so many shares is a very different thing : and qumre, even a resolution passed by the Board ■on the subject would be insufficient (h). There are to be found in the cases dicta which go far to support the proposition, that by agreeing to become a director a man ipso facto agrees to become a member for the qualification shares, and that, if he has not already got them, he is thenceforward bound to take them from the company. («) New Brunswick and Canada Co. v. Boore, 3 H. & N. 249, decided under the Act of 1856. (a) Palmer's Case, I. R. 2 Eq. 573 ; and see p. 600 (6) Hmyth's Case, I. R. 2 Eq. 573. (c) Wdtley Partners, Limited, 32 Ch. Div. 337. (d) Land Shipping Colliery Co., 18L.T.786. (e) Per Lord St. Leonards. Spackman y. Evans, L. R. 3 H. L. 171, 208. (/) The Act of 1844 (7 & 8 Vict. c. 110, s. 28) required a director to be the holder of one share. But neither the present Act nor Table A. (see art. (52), et seq.) con- tains any such provision. ((/) See Davis' Case, 26 L. T. 650 ; 41 L. J. (Ch.) 659, and infra. (A) De Buvigne's Case, 5 Ch. Div. 306 ; Banken's Case, W. N. 1879, 7, 157. THE COMPANIES ACT, 1862. 51 But this is going too far, and no case has decided that acting as a director Sect. 23. amounts to a contract to take shares within this section (i). Even if an agreement to become a director implies an agreement to take the shares, it does not follow that it is an agreement to take them from the company (k) ; neither is there to be extracted from a qualification clause in the articles any agreement with the company in the matter, the agreement if any is with the other members {€). Moreover the director ought to be allowed a reasonable time to get the shares, and before the authorities had gone so far in holding that the qualification clause imports no contract with the company at all it was said that if the director acquired the shares by puijchase in the market, or by transfer from a friend, or in any such way before acting as a director, this would be sufScient Q) : and that if the company, though formally con- stituted, had never in fact had any business existence the time would run even after he began to act as a director (jw). [If he acquire them in breach of trust from the promoter of or vendor to the company he must be attacked under s. 165 (now s. 10 of the Comp. (W. Up) Act, 1890), he cannot be made a contributory as for unpaid shares («).] It has been said that the true result of the authorities is only this : that the fact of a man accepting the office of director, " is most material in deter- mining whether he shall or shall not be permitted to repudiate, as unautho- rized by himself, the registration of shares which, in the ordinary course of the business of the company, have actually been placed in his name, and which were needful for his qualification " (o). The argument in these cases always is that, whether the shares have been registered or not, a person accepting the office of, and acting for any reason- able length of time as, a director, and not having within a reasonable time otherwise acquired the shares, ought to be deemed to have "agreed to become a member " in respect of the qualification shares, and to have .thus concluded a contract to take them from the company (p). But qumre this is to confound duty with contract. In Brown's Case (q) the Court, on the facts, held that the intention was to qualify by shares acquired in the manner in which the paid-up shares were there acquired. The rule as deduced from the previous authorities was stated by Jessel, M.E., in Miller's Case (r), thus : — " Where the qualification is not indispens- able to election the director has a reasonable time for acquiring the qualifica- tion either from the company or anybody else, but he must acquire it before he acts. Although he may abstain from acting for a reasonable time, still if he abstains from acting for a very long time he is liable ; he is equally liable if he acts — the time ceases to run when he acts (s). Again I take it to be also settled in Brown's Case (q) that if in the ordinary course of the business of the company he is registered in their books as a shareholder the agree- (i) Wheal JBuller Consols, 38 Ch.'DiT. 42. See, however, observations on this case in (A) See also Saruth's Case, 20 Eq. 506, Karuth's Case, 20 Eq. 506, 510. In Ramp- 509 ; Bamley's Case, 5 Ch. Div. 705, 707. shire Co-operative Milk Co., W. N. 1880, (f) Brown's Case, 9 Ch. 102 ; Forbes' 194 ; 29 W. E. 170, the name was not on Case, 8 Ch. 768, 774 ; Carling's Case, 1 Ch. the register, but the director was held Div. 115. liable : for the facts of this case see 25 (m) Hewitt's Case, 25 Ch. Div. 283. Ch. D. 291. (n) Carling's Case, 1 Ch. Div. 115 ; and (?) 9 Ch. 102. note to s. 165. (;•) 3 Ch. D. p. 665. (o) Brown's Case, 9 Ch. 102, 107. Quwre, (s) Since Hewitt's Case, 25 Ch. Div. Currie's Case, 3 D.J. & S. 367, and JTincaid's 283, this must be modified where the Case, 11 Eq. 192, go beyond this, v. infra. company has never in fact had any busi- (p") And qnare whether Currie's Case is ness existence, not an authority to this effect, v. infra. E 2 52 THE COMPANIES ACT, 1862. Sect. 23. ment which the man enters into by becoming a director to tate the qualiflca- tion is a sufficient authority for the registration, and therefore he is a duly registered shareholder whether he knew of the registration or not." In this case the company was registered on the 6th of November, the director attended a meeting on the 10th, resigned on the 12th, never afterwards took any part in the company's affairs, never applied for shares, and did not know of their registration in his name. But he was held liable (t). In this case the name had been entered on the register, but without MiUer's knowledge. The Marquis of Abercorn's Case (u) is the first case on the point, and is un- doubtedly a strong decision. The marquis, although he never acted as, was held to be clearly fixed with the character of, a director ; but the qualification stock having never been actually registered in his name, the Court refused to make him a contributory in respect of it. The ground of the decision" appears to be that there was no express agreement to take the stock, and no knowledge on the part of the marquis that a qualification was necessary ; that to imply an agreement therefore would be to create a constructive per- formance of a constructive obligation. It was also said that if acceptance of the office was acceptance of the stock, a transfer must be implied upon retiring. But qucere as to this ; for there is ample authority to shew that, while the acceptance of shares is a, facilis descensus, they cannot be parted with but in some strictly authorized manner. It should not be overlooked that a director in this case was allowed to qualify in either of two ways {x), and that one only of these was by holding stock, but the judgment did not turn upon this. Chapman's Case (y) followed the decision in Lord Abercorn's Case (u). Chapman applied for the shares, but retired from the direction before the first allotment, and the directors refused to allot him any shares. There was clearly no concluded agreement. In TothilVs Case (z) a director who, after signing a memorandum for twenty-five shares, applied for fifty shares, which was the qualification of a director, but to whom no allotment was made, was held to be a contributory for twenty-five shares only. On the question of directors' qualification this case is in the same company as, and is governed by, Stock's Case (a), the word used being " eligible." In Onslow's Case (b) the director applied for twenty-five shares, which were the qualification; the qualification was afterwards reduced to five: five shares were allotted to him; he was held not liable for twenty more. Elio-ible ■"■* the qualification clause provide that "no person shall be eligible as a ° ' director," &c., this cannot apply to directors appointed by the articles, for they do not require election (c). Such a qualification is applicable only to persons thereafter to be elected directors. So, directors named in the memorandum of association were not within a qualification clause introduced by alteration of the articles itnder sect. 50, providing that " the future qualification of a director shall be," &c. (d). But where the words were " no shareholder shall be entitled to be a director unless he hold," &c., the subscribers of the memorandum were, in the character of first directors under articles substantially identical 'in this (i) He escaped liability upon a rehearing (a) 4 D. J. & S. 426, see note (c) on a didereiit ground, 3 Ch. D. 657 ; 5 Ch. (6) W. N. 1887, 79. ' I*''- 70. (c) Stock's Case, 4 D. J. & S. 426- (»)4D F &J.78 Forbes' Case, 8 Ch. 768; cf. Watford's (x) See 4 r>. F. & J. 85. Case, 20 L. T. 74. (/) 2 l^q- 567. ((?) Zord Gaud ffamilton's Case, 8 Ch. (0 1 Ch. 85. 548. THE COMPANIES ACT, 1862. 63 respect with Table A. arts. (52), (53), held contributories for qualification Sect. 23. shares (e). There was in this case an independent agreement to take the ■ shares, contained in a resolution passed at a meeting held by the promoters before the company was incorporated, but the judgment does not turn upqn this. In this case there were shares registered in the directors' names, but none were, so far as appears, so registered in respect of qualification; so that this case would seem to be an authority that a director may be fixed with qualification shares, although not registered in his name (/). Where the possession of the qualification is by the articles made a condi- tion precedent to election, a man who has not the qualification does not by accepting the ofBce of, and acting as, a director come under any contact to take shares. For the result is, that his election is void, and he is not a director at all (' ""^y ^^ whom an offer is made has actual knowledge that the person who made the offer has done some act inconsistent with the continuance of the offer, as e.r/., in the case of an offer to sell a property, that the person making the offer has since sold to another person (^). Again, where M. applied for 200 shares of £10 each, and paid a deposit of £500, being £2 10s. per share, but before allotment he proposed to the directors to treat the £500 as paid in respect of fifty fully paid-up shares, and the directors agreed and sent him the certificates for fifty fully paid-up shares, he was held to be a contributory for the fifty paid-up shares only (i). It was held in Bolton Partners v. Lambert {h) that where the order of But even after events was (1) that an agent of the company, not authorized so to do, ac- ^^' ^u7\'\r cepted on behalf of the company an offer from the defendant for purchase of j-atify previous property, (2) that the defendant withdrew his offer, and (3) that the com- invalid allot- pany ratified the acceptance of the offer by the agent, that the ratification "''"*• related back to the acceptance by the agent and that the withdrawal was therefore inoperative. And following this decision it has also been held that where the order of events was (1) allotment of shares at that which was not a Board meeting, and at which allotment was therefore invalid Q), (2) withdrawal of the application, and (3) confirmation at a proper Board meeting of the previous void allotment, the allotment was binding (m). These are decisions of the Court of Appeal. Allotment, and entry of the applicant's name on the register, is not suflS- Communica- cient to bind him. It is not his duty to search the register to see whether ^™ °._ °'" the allotment has been made or not. The communication of the allotment (c) See Samsgate Hotel Co. v. Monte- (A) Dickinson v. Dodds, 2 Ch. Div. fiore, L. K. 1 Ex. 109 ; GledhilVs Case, 7 463. Jur. (N.S.) 981; 3 D. F. & J. 713. Cf. (i) Miles' Case, 4 D. J. & S. 471; 12 Bitso's Case, 4 Ch. D. 774; Gold Co. of W. E. 1129 ; 13 W. E. 218 ; 11 L. T. 581 ; Southern India, W. N. 1880, 198. 34 L. J. (Ch.) 123. (d) Pentelow's Case, 4 Cli. 178. (k) 41 Ch. Div. 295. (e) 4 Eq. 9. (I) Portuguese Copper Mines, Steele's If) 4 Ch. Div. 774. Case, 42 Ch. Div. 160. (g) Natal Investment Co., Wilson's Case, (m) Portuguese Copper Mines, Badman's 20 L. T. 962. ^ Bosanquet's Cases, W. N. 1890, 36, 111. 58 THE COMPANIES ACT, 1862. Sect. 23. in case of amalgamn- tion (o). Cases on com- munication of allotment. need not necessarily be in writing : but there must be in writing, or verbally, or by conduct, something to shew the applicant that there is a response by the company to his offer (?;). There may be cases in which, under special circumstances, notice of allot- ment is not required to complete the contract ; but these are not in any way inconsistent with the general rule as stated above. Thus where, upon the amalgamation of company A. with company B., it was part of the arrangement that the A. shareholders should be entitled to , receive in exchange for their A. shares an equal number of B. shares ; and there was accordiogly sent to them for signature a form of application, con- taining a request for an allotment of the B. shares to which they were entitled, with an agreement to accept them, and an authority to put their names on the register ; the contract was complete as soon as the application was sent» and acceded to (p), and notice of allotment was unnecessary. So that an A. shareholder who signed the application, and whoise name was put on the register of the B. company, but as to whom it was a question whether he received notice of allotment or not, was held to be a contributory of the B. company, Bacon, V.O., saying, " Gunn's Case (q) does not apply, because here the acceptance is clear from the form of application " ('/•). And a shareholder in and director of the A. company who, under similar circumstances, having received no notice of allotment wrote to withdraw his application after the allotment had in fact been made, was held to be a con- tributory, for that the shares had been validly allotted to him, although he had received no notice of it (s). These cases are clearly no exception to the rule above stated as laid down in Pellatts Case (t), for the apphcation was here made, not by a member of the general public, to whom the company were under no obligation to allot shares, but by an A. shareholder who was entitled, if he chose to take them, to a definite number of B. shares. The company were under a direct obliga- tion to grant him that number, and no less number, of shares, which he was entitled to according to the terms of the agreement for amalgamation. The transaction, therefore, amounted to this, that the company said, "I offer you fifty shares ; " and the shareholder, by signing the form of application, said, " I accept them," and by such acceptance a binding contract was con- cluded (m). Bloxam's Case (x) is a case often cited as an authority that an applicant may become bound without having received notice of allotment. B. there applied verbally for shares, and paid the deposit to the secretary of the company on his undertaking to return it if he did not get the shares in a few days. The shares were allotted two days afterwards, and an entry was made to that effect in one of the company's books, but no notice of allotment was sent to B., and there was no acceptance or further act on his part. B. (re) Gunn's Case, 3 Ch. 40 ; and see E.p. Fox, 11 W. E. 577 ; 2 N. R. 1; 8 L. T. 223 ; Land Shipping CoUienj Co., 18 L. T. 786. (o) As to acceptance of shares on amal- gamation, see further, infra. (p) See Adams' Case, 13 Eq. 474, 481 ; but qucere, was it necessary to shew accept- ance by the company ? If it was, was it not also necessary to shew notice of sucli acceptance ? (q) 3 Ch. 40. ()•) E. p. TiKkcr, 41 L. J. (Ch.) 157 ; 20 W. R. 88 ; 25 L. T. 654. (s) Adams' Case, 13 Eq. 474. As to shareholders in amalgamated companies, see further, s. 161, and infra. (0 2 Ch. 527. («) And see the Leeds Banking Co. Cases, cited infra. (x) 33 Beav. 529 ; 4 D. J. &' S. 447 ; 12 W. K. 995 ; 33 I. J. (Ch.) 574 ; 10 Jur. (N.S.) 833 ; and see Gregg's Case, 15 W. R. 82 ; quwre, whether the decision in this case could now be supported, both on the ground of want of communication, and of ilelay in allotment. THE COMPANIES ACT, 1862. 59 ■was held to be a contributory. Knight Bruce, L. J., however, though not Sect. 23. dissenting, expressed himself as not quite satisfied with the decision ; and the case has always been regarded as turning upon special circumstances and not determining the simple question (y). Again, in Oookney's Case (z) C. verbally requested a director to obtain him shares in a company which was in course of formation, and subsequently paid him the deposit. An allotment was made, but C. refused to execute the deed of settlement of the company. He was held to be a contributory. Of this case Kolt, L.J., says (a), " Cockney authorized a director of the com- pany to get him made a shareholder. The director who was thus constituted Cockney's agent did what was necessary to make him a shareholder. There was an agreement completed, not merely resting on the application for shares." In Sahlgreen and Oarrall's Case (b) S. and C. agreed to become agents for the company on certain terms, one of which was that they should subscribe for shares. They never appUed for shares, but about ten months afterwards the directors allotted them shares and put them on the register. No com- munication of the allotment having been made to them before a winding-up order was made, they were held not to be confributories, and their names were removed from the register. In WalUs's Case (c) W. applied for shares in company A.j at the instiga- tion and through the agency of J- P.^ brother of E. P., the managing director of company B., on J. P.'s assurance that he wished him to become a share- holder merely as a trustee for company B., and that he would be indemnified by that company from all liability. The notice of allotment was sent, not to "W. nor to J. P., but to E. P. ; and therefore W., having received no notice of allotment, either personally or by his agent, was held not to have become a shareholder. Bobinson's Case (d) was a case referring to the same company, and under circumstances almost identical with those in WalUs's Case, except that E. P. was constituted Robinson's agent to apply for the shares. But the Court holding that E. P. was not his agent for receiving notice of allotment, Kobinson was, on the ground of no notice of allotment, held not to be a shareholder. A letter of allotment requires a penny stamp (33 & 34= Vict. c. 97). But Unstamped an unstamped letter of allotment may be sufficient to complete the contract allotment. and bind the allottee, although between the date of receipt of the unstamped allotment and the subsequent receipt of a stamped allotment sent in correc- tion of the mistake, the allottee has repudiated the shares (e). But although a communication of the allotment is necessary to complete Communica- the contract, yet direct notice is not necessary ; and if notice has in fact been tion of allot- given, or if the applicant stands in such a position that he must have known ment otherwise of the allotment, or has acted in a manner inconsistent with ignorance of it, notice^ he cannot escape liability. Thus in Crawley's Case (/), which referred to the same company and the Execution of same circumstances as the two cases last mentioned, C. had received no transfer, notice of allotment, but had executed a transfer of the shares, and was there- (!/) See Pellait's Case, 2 Ch. 527, 535 ; (rf) 4 Ch. 330 ; cf. Ward's Case, 10 Eq. Gwm's Case, 3 Ch. 40. 659. (z) 26 Beav. 6; 3 De G. & J. 170. (e) Whttley Partners, 28 W. R. 241 ; (a) 3 Ch. 44. 42 L. T. 11. (5) 3 Ch, 323 ; and see cases as to agents (/) 4 Ch. 822 ; cf. E. p. Briggs, 1 Eq. for the company, cited infra. 483 ; 35 Beav. 273. (c) 4 Cb. 325, u. 60 THE COMPANIES ACT, 1862. Sect. 23. fore fixed as a contributory, for that he could not be heard to say that he was ignorant, that the shares were standing in his name when he had done an act which would be without meaning unless lie were a shareholder. In Ward's Case (g), however, W. having, at the instance of the promoters, signed an application for shares, and at the same time executed a blank transfer, but having never made any payments in respect of shares, or received any notice of allotment, was held not to be a contributory, although the shares had been in fact allotted to him, and the deposit and calls 'paid by some persons without his knowledge. The Vice-Chancellor there said that the application, in the events that had happened, and the deed of transfer, were a nullity. And where L.'s name had been signed to an application for shares without his knowledge, and the shares were allotted to him and his name put upon the register, he was held not to have adopted the allotment by signing a blank transfer of a portion of the shares allotted to him in the belief that he would thereby be relieved from all liability Qi). Director. Again, where the applicant received no notice of allotment, but his name was advertised as a director, and he attended a meeting of directors, he was held to be a contributory («). So in Fletcher's Case (k), F. applied for shares unconditionally, with a view to qualifying himself as a director, and paid the deposit. He was present at a board meeting, at which a resolution was passed to proceed to the allotment of shares, and he afterwards attended meetings of the board as a director. Subsequently the directors, on his request, cancelled the allotment and repaid the deposit. There was no evidence of direct notice of allotment, but he was held to be a contributory. Again, where a director applied for additional shares and he was entered upon the register in respect of them, but there was no evidence of any allot- ment to him, he was made contributory (?). Where, however, he withdrew his application concurrently with resolution to allot and before allotment, he escaped (m). In another case, however, B. was induced by S., the managing director of a company, to sign an application for 1000 shares, on the understanding that the application should not be sent in to the directors until S. had paid or given security for the payment of the application and allotment moneys. B. subsequently became a director, and advertisements were issued under his authority and with his knowledge, stating the number of shares sub- scribed for to be largely in excess of the fact, even if the 1000 shares were included. S. neither paid nor gave security for the moneys, and no formal allotment was ever made, but B.'s name was put on the register, although B. had no actual knowledge of it. It was held that B.'s name must be taken off the list (n). Again, in PlimsolVs Case (o), it was held that the fact of P. being a director and attending meetings did not give him implied notice of allotment so as to fix him as a contributory in respect of shares for which his name was entered on the register, but for which he had neither sent an application nor received notice of allotment. (a) 10 Eq. (ij9. a) 37 l. J. (Ch.") 49 ■ 17 L T llfi • 1R (A) E. p. Little, 17 W. R. 4G1 ; 20 L. T. W. R. 75. ^ ^ *« > i^ L. J . 136 , 16 W2 ; cf. Frcre's Case, li^ Sol. J. 674. See (0 Bird's Case, 4 D. J. & S 200 :ilso as to the eirect of signing a blank (m) Sitso's Case, 4 Ch. Biv 774* trunsfer,^a.-%sa«| W.N. 1860,196; («) Cwersal Banldng Co., Bartletfs Lystcrs Cas. 4 Eq. 233. Case, 17 W. R. 131 ; 19 £. T. 628 (i) A. Levttas Case, 3 Ch. 36. (o) 24 L. T, 653. THE COMPANIES ACT, 1862. 61 So in Hallmark's Case (p), the Court refused to impute to a director know- Sect. 23. ledge of entries in the company's books which shewed that shares had been allotted to him when he deposed that he was ignorant of them. And inas- much as he had neyer applied for shares he escaped. — "Where there was neither application nor allotment, but the shares were Auditor. de facto allotted, and the allottee was an auditor of the company, he was made contributory (q). But qucere, whether this can staad with Hallmark's Case {p). An auditor who swore he had never looked into the books or done any- thing more than help in making up the minute book has been allowed to escape (r). If it be part of the arrangement under which an agent of the company is Agent of com- appointed that the agent shall take shares in the company, the application V^'^Y- for shares and the appointment as agent will constitute together an agree- ment to become a member of the company, and the applicant will be bound without receiving notice of allotment (s). If, in fact, there be an agreement for valuable consideration to take shares and the consideration be paid, notice of allotment is not necessary (t). Where L. had constituted M. his agent to accept the shares, and M. had Notice to received notice of allotment, L. was bound (u). applicant's Where there was a direct conflict of testimony between the shareholder ^^^"^ ' and the alleged agent as to the authority of the agent, Eomilly, M.E., refused to act upon the evidence, and removed the name from the list. On appeal the order was discharged, the company having instituted an action for calls, and the Court being of opinion that the effect of the evidence would be best ascertained in the action (x). It is for the company to prove notice of allotment (y). The fact that an alleged shareholder has signed a proxy as a shareholder Signing a may, as between him and creditors, be decisive as to his having agreed to P''°^y- become a member (z) ; as between him and the company it may be otherwise (a). In an action for calls, a transferee has been held precluded from disputing the validity of the transfer to himself by having afterwards signed a proxy describing himself as the proprietor of the shares (&). If A. write and send to B. a letter containing an offer, and either directly Application or impliedly (d) tell him to send his answer by post, and B. accept the offer ^^ allotment by a letter, which is duly posted, a binding contract is completed between ^ ^ ^^ w- the parties from the time when the letter of acceptance is posted (e). And an (p) 9 Cli. Div. 329. 74 ; 5 Cli. 305 ; Dtxan v. Evans, 5 CIi. 79 ; (g) Wheatcroft's Case, 29 L. T. 324. L. R. 5 H. L. 606. (r) Zand Shipping Colliery Co., 18 L. T. (a) Mcllwraith y. DuUin Trunk Eailway 786 ; and see Empsan's Case, 9 Eq. 597. Co., 7 Ch. 134, 140. (s) Davis' Case, 26 L. T. 650; 41 L. J. (6) Sheffield Bailway Co. v. Woodoooh, (Ch.) 659 ; Richards v. Home Assurance 7 M. & W. 574. Association, L. E. 6 C. P. 591 ; of, Eitso's (c) The subject of contract by letter Case, 4 Ch. Div. 774. will be found very fully discussed in an (t) Gorrissen's Case, 8 Cb. 507. See article in the American Law Review the judgment of Malins, V.C, p. 512, n., (April, 1873), vol. vii. p. 433. reversed on appeal, but not on this point. (d) See Wall's Case, 15 Eq. 18, 21. (u) G. H. Lemta's Case, 5 Ch. 589 Fraser'sCase, 19 W. R. 844; 24 L. T. 746 De Sosaz' Case, 20 L. T. 348 ; 21 L. T. 10 (e) Adams v. Lindsell, 1 B. & A. 681 ; Dunlop T. Higgins, 1 H. L. C. 381 ; Duncan V. Topham, 8 C. B. 225 ; 18 L. J. (C.P.) cf. Barrett's Case, 4 D. J. & S. 416. 310 ; Harvey v. Johnston, 6 C. B. 295 ; 17 {x) Braginton's Case, 12 L. T. 67, 259. L. J. (C.P.) 298 ; Potter v. Sanders, 6 (y) Beidpath's Case, 11 Kc[^. SB; De Sosaz' Hare, 1; Hattersley v. Carlisle, W. N. Case, 20 L. T; 348 ; 21 L. T. 10. 1879, 112 ; MacLagan's Case, W. N. 1882, (a) Danger's Case, 18 L. T. 67 ; 37 L. J. 98, 46 L. T. 880. (Ch.) 292 ; and see Bridger's Case, 9 Eq. 62 THE COMPANIES ACT, 1862. Sect. 23. application for shares in the usual form does, having regard to the usage in such matters, impliedly authorize an acceptance by post (/). And, therefore, if a person apply for shares, and the application is accepted, and allotment made to him by letter duly posted, the contract is complete when the letter of allotment is put into the post (g). If the letter is posted, not to the applicant, but to some one else not being his agent, this of course is no notice at all (h). Against this current of authority there was the case of British and American Telegraph Co. v. Oolson («), in which the Court of Exchequer established this distinction from the case of Dunlop v. Higgins (h), that although the posting of the letter, if the letter arrives, is a complete contract, yet if from any cause, such as a failure of duty by the Post Office, the letter never arrives at all, then there is a difference ; and in that case the letter of allotment having never been received by the applicant, it was held that he was not a share- holder. British and American Telegraph Co. v. Colson was commented on in Harris' Case (I), and the decision not altogether approved by the Lords Justices ; but it will be observed that, although it may not be easy to reconcile that case with Dunlop v. Biggins, it does not come in collision with Harris' Case, for the last-mentioned case need not be put higher than this, that if the letter of acceptance is delivered in due course of post, the contract is complete from the time when the letter was posted. Upon the point which was decided in British and American Telegraph Co- V. Colson it was said by Mellish, L.J., in Harris' Case Q), that it was not necessary to give any decided opinion, because although the contract is complete at the time when the letter accepting the offer is posted, yet it may be subject to a condition subsequent that if the letter does not arrive in due course of post then the parties may act on the assumption that the offer has not been accepted. In Household Fire Insurance Co. v. Grant (to), however, the exact point of letter of allotment posted and not received arose again, and it was there held by Baggallay and Thesiger, L. JJ. (Bramwell, L. J., dissenting), that the Post OfSce is to be treated as the agent of both parties, and that where letter of allotment is posted the allottee is bound though the letter be never received ; and British and American Telegraph Co. v. Colson (;) was overruled. All the reasons to the contrary of this decision will be found succinctly stated in the judgment of Bramwell, L.J., who dissented, and adhered to British and American Telegraph Co. v. Colson (i). The following are cases in which it had been held that upon evidence of non-receipt by the applicant of the letter of allotment, or even in default of evidence of its receipt (n), the Court will not hold the applicant bound as a shareholder : — Finucane's Case (o), in which a reasonable cause was assigned for the letter not having been delivered, viz., that there was in the street a second house bearing the same number as that to which it was addressed; and Beidpath's Case (_p), where Eomilly, M.E., said it was for the company to prove notice of allotment; that evidence of the letter being posted was not (f) Household Fire Insiiranca Co. v, (k) 1 B. L. C. 3&1 ; v. supra. Grant, 4 Ex. Div. 216, 218, 228. (/) 7 Ch. 587 ; v. supra. (g) Harris' Case, 7 Ch. 587 ; ITebb's Case, (m) 4 Ex. Div. 216. 4 Eq. 9; Wall's Case, 15 Eq. 18. (n) See Seidpath's Case, 11 Eq. 86 (A) IMb's Case, i Eq. 9. (o) 17 W. E. 813 ; 20 L. T. 729 (0 L. R. 6 Ex. 108. (p) U Eq. 86. THE COMPANIES ACT, 1862. 63 sufficient ; and that he could not, in opposition to the oath of the applicant, Sect. 23. who said he never received the letter, fix him as a contributory (q). These cases are swept away by the decision of the Appeal Court in House- hold Fire Insurance Co. v. Grant (r). In Townsend's Case (s) the letter of allotment was delayed by the fact of the applicant himself having furnished an incorrect address. Before receipt of the allotment the applicant had written to revoke his application, but he was nevertheless held liable as a contributory. In Wall's Case (f) the applicant wrote withdrawing his application on the day on which he ought in due course of post to have received notice of allotment. He denied that he had ever received the notice, but his un- supported evidence was held insufBcient to discharge him. The Court further expressed an opinion in accordance with what was said in Harris' Case (u), that if the letter of allotment had not been received the contract would nevertheless have been binding as from the time of posting the letter. By way of contrast to the foregoing cases should be put the case where the course of events is (1) application by letter posted and received ; (2) revoca- tion of application by letter posted ; (3) allotment ; (4) revocation of applica- tion received. In such case, upon the authority of Byrne v. Van Tienhove7i (x), the allottee would be bound. For although he may withdraw his application at any time before allotment, yet the date to be attributed to the withdrawal is not the date of posting, but the date of receipt, for the other party has given him no authority to revoke by post, and the Post Office is, therefore, not the company's agent for that purpose. So if A. write to B. authorizing B. to act as his agent, B. has no authority until the letter reaches him (y). If A. initiates communication by telegraphing to B. he must be treated as speaking to B. at the place to which the telegram is directed, and if he desires a reply by telegram, the reply is to be treated as given to A. at the office from which the reply is despatched (y). If an application for shares be made upon a condition precedent which is Application not complied with, or if the application be conditional, and the allotment subject to a unconditional, no completed contract will have arisen, and the applicant will "'''°""'°"- not be bound. W. applied for shares subject to a condition that he should supply certain goods wanted by the company. Shares were allotted to him ; but no definite arrangement having been come to as to his supplying the goods, he did not pay the deposit (z) or do any act amounting to unqualified acceptance. The condition being held to be a condition precedent he was held not to be contributory (a). So where, on the 9th of April, S. applied for shares conditionally on his (g) See also Ebhett's Case, 5 Ch. 302 ; («) Payment of the deposit, and even Toumsend's Case, 13 Eq. 148. attending meetings of shareholders, will (r) 4 Ex. Div. 216. not necessarily make the contract binding; (s) 13 Eq. 148. Qimre, whether the Simpson's Case, 4 Ch. 184 ; Pellatfs Case, head-note of this case correctly repre- 2 Ch. 527, cited infra. And as to pay- sents the judgment in saying that the ment of deposit see WaUrford, ^o., Eail- contract was complete when, but for A.'s way Co. v. Pidcock, 8 Ex. 279 ; Edwards fault, the letter would have been delivered. v. Xilkenny Bailway Co., 14 C. B. (N.S.) 526. See the judgment of Malins, V.C., in (a) Wood's Case, 3 De G. & J. 85 ; and Harris' Case, 7 Ch. 589, ii. see Coleman's Case, 1 D. J. & S. 495 ; 8 (0 15 Eq. 18. L. T. 292 ; Boward's Case, 1 Ch. 561 ; (u) 7 Ch. 587 ; v. supra. E. p. Harwood and Others, 20 L. T. 736 ; (x) 5 C. P. D. 344. Simpson's Case, 9 Eq. 91 ; Simpson t. (j/) Cowan V. O'Cmnor, 20 Q. B, D. 640, Beaton's Steel Co., 19 W. R. 148, 614 ; 642. 23 L. T. 510 ; 25 L. T. 179. 64 THE COMPANIES ACT, 1862. Sect. 23 being appointed a director, and they were forthwith allotted to him, and he — paid the deposit, but on the 16th of April he withdrew his application, repudiated the shares, and claimed to have the deposit credited on other shares which he held, and this was done and he never was appointed a director, he escaped (b). The test whether an applicant is liable to be placed on the list of con- tributories may in some cases be whether specific performance of the agreement to take the shares could have been decreed against him (c). But where he has entered into a concluded agreement to take shares, and his name is on the register, semble, the case cannot be treated as if it were a contract resting in fieri (d). S., after an interview with the secretary of a carriage-building company as to taking shares and paying the calls in rolling stock, sent in an application for shares, all future calls to be paid " in rolling stock as arranged." The directors returned no answer, but put S. on the register for shares. He received no notice of allotment, and was never treated as a shareholder. He was held not to be a contributory (e). E. filled up an application for shares in the usual form, and the company's agent forwarded it to the directors, with a letter from himself (the agent) to the effect that the application was made on condition of E.'s being appointed local manager. The shares were allotted ; but E. being unable to pay the deposit, the directors refused to give him the appointment. H. made a similar application through the agent, but no letter was sent to the directors stating that the application was conditional. The shares were allotted unconditionally to H. He afterwards declined the appointment, but did not formally repudiate the shares. It was held that E.'s application being con- ditional, and H.'s unconditional, the latter had become a shareholder, but the former had not (/). W. signed an application for shares upon condition that he should be appointed to, and after inquiries into the stability of the company should accept, the office of secretary. Allotment was made to him the next day, but on the result of his inquiries he declined the secretaryship, and required that the allotment should be cancelled. In a voluntary winding-up his name was removed from the list of contributories. In this case the application did not contain the condition, but was signed under pressure, and for a conditional purpose (g). In Dixon V. Evans Qi) the application was made by an agent for D., and upon the assurance that an Act of incorporation would be obtained limiting the liability of the shareholders. This was not done, and by a compromise the directors cancelled the shares. There was no power to cancel shares, but the cancellation was held good under a power to compromise, for there was a bond fide question whether D. was a shareholder or not (i). So if, upon an amalgamation, the application for shares in the purchasing company be ascertained upon the course of dealing to have been conditional upon the amalgamation being carried out, and it is not carried out, the applicant will not be a shareholder in the purchasing company {k). , But application subject to a condition which the applicant ought to have (6) Shaio's Case, 34 L. T. Vlo. (iv, 120. nrte. (c) Shackleford's Cisc, 1 Ch. 567. (A-) Dougan's Case, 8 Ch. 540 ; Alabaster's if) Sogers' Case, Harrison's Case, 3 Cli. Case, 7 Eq. 273, ct vide infra sub tit. 633. " Amalgamation." THE COMPANIES ACT, 1862. 65 known was unmeaning and could not be complied with, followed by allotment Sect, 23. and acquiescence, is binding. Thus, where upon the amalgamation of a limited with an unlimited company, a shareholder in the limited company applied for shares in the unlimited company " if limited," he was bound Q). A large and important class of cases is that in which a person is induced to apply for shares by the promise of some advantage which will only be secured to him on condition that he takes shares ; e.g. where a tradesman is offered the sole privilege of supplying the company with a particular sort of goods, or a person is offered the post of agent on condition that he takes a certain number of shares. In such cases the promise of advantage not having been performed, or having become incapable of being performed, the question will arise whether the persons who have on the faith of such promise applied for shares have agreed to become members. To cases of this class the question put by Cairns, L. J., in -EZfe'ra^fioa's Oase(m), Condition pre- will in general apply. In ElkingtorCs Case Messrs. E. applied for shares on cedent oi- col- the faith of an agreement that they should pay only 30s. per share in cash, ^^'^'^^'• and that the further calls should be set off against goods, which they were to supply to the company (n). The shares were allotted, the amount payable upon allotment was paid. Messrs. E. received and retained the share certificates, and were entered on the register. No goods were ordered, and the company was subsequently wound up. Cairns, L.J., there said (o) : "The real point for determination in this case may be said to be this : did Messrs. E. intend and agree to become members and shareholders in prcesenti, with a collateral agreement as to what should be the effect of their so becoming shareholders ? or, on the other hand, did they agree that if and when a certain preliminary condition should be performed, and not other- wise, they would become members and shareholders ? " and under the cir- cumstances above stated, it being held that th^ had agreed to become shareholders in prcesenti, they were placed on the list of contributories, although the condition had not been performed. Whether or not as against the company, as distinguished from the creditors of the company, they could claim to be indemnified against the calls made upon the shares, was quite another question. PeUait's Case ( p), which had reference to a similar agreement in the same company as the case last mentioned, was exactly the converse of Elkington's Case, for P. was held to have agreed to take shares subject to a condition precedent which had not been complied with ; the special agreement being one which was either ultra vires the directors, and therefore, for want of mutuality, not binding upon P. ; or, if intra vires the directors, still not enforceable against P., because the stipulations on the part of the company had become incapable of being performed (g). In cases of this character the applicant if registered has not been registered with his consent, and in that state of things although a winding-up order have been made, creditors have no better right than the company to the specific performance of an unexecuted contract with a person whose name is not duly upon the register. What is a defence against the company is then (0 Perrett's Case, 15 Eq. 250. (o) 2 Ch. 522. (m) 2 Ch. 511; and see JisAer's Case, 31 (^) 2 Ch. 527; c/. Thornton's Case, Ch. Div. 120. W. N. 1875, 109. (n) See Comp. Act, 1867, s. 25, infra, as (g) And see Alabaster's Case, 7 Eq. 273 ; to what is now required to render such an Stace and Worth's Case, 4 Ch. 682 ; U. p. agreement valid, and note to s. 25 of this CoUison, 15 W. K. 778 ; 16 L. T. 340, as to Act. conditions impossible or ultra vires. F 66 THE COMPANIES ACT, 1862. Sect. 23. a defence against the creditors, because the alleged contributory is not a '- — member, and cannot be made so except upon the terms of the contract, if any, by which he has agreed to become one (r). In fSimpson's Case (s), S. in consideration of having the contract to perform certain works, agreed to subscribe for shares; and to pay the deposit, on being satisfied that a certain number of shares had been subscribed for, and that the directors had passed a resolution that he should have the contract. The directors accepted the application on those terms, and passed a resolution to the effect required. They then sent S. an unconditional allotment of shares, and entered his name on the register. S. retained the notice of allotment, and having ascertained that the resolution had been passed and the requisite number of shares taken up, he sent in a formal application and paid the deposit. No further allotment was made to him : the certificates were not delivered to him, and he was not called upon to pay calls. He subsequently attended two meetings of shareholders for the purpose of seeing that the contract was secured to him. The contract for the works was never prepared, and the company was shortly afterwards wound up. It was held that this was a conditional application, within PdlatCs Case ; that the condition was not performed by the mere passing of the resolution that S. should have the contract ; that S. had not waived the condition by not returning the allotment, or by attending the meetings of shareholders ; and that he was not liable as a contributory. In Bridger's Case (t), B., the local agent of a company, applied for shares to give the company credit in the neighbourhood in which he was agent, and to assist him in canvassing for business, on the understanding that he was to pay the calls out of his commission on shares sold by him. He sent in a letter of application in the usual form, accompanied by a letter referring to the conditions as to payment. An allotment was made and communicated to him, and his name was entered on the register ; but he made no payment on application or allotment, neither did he pay any calls. He attended two meetings as a shareholder, and signed a proxy as a shareholder. This was held to fall under the same head as Elkington's Case (v. supra), B. having entered into an absolute contract with a collateral agreement. Fishers Case (u) is another case in which the condition imposed was held to be a condition subsequent and the allottee was held liable. In Thompson's Case (x), T. upon his appointment as agent agreed to take shares upon the terms that the payment on the shares should be deducted from his commission, and the certificate was to be delivered to him as soon as his commission was suflScient to cover the deposit and allotment moneys. His name was entered on the register, but the certificate was not issued. The company shortly afterwards dismissed him. He was on appeal held liable as a contributory, for that the agreement to take shares was concluded, the company could not have refused to allot him shares, and the cancellation by the company of his appointment could not operate to cancel his agree- ment to become a shareholder. But where T., the paid secretary of a company, offered to take 1000 shares in order to raise money for the purposes of the company, and after he had taken and paid for 850 of the shares he resigned his secretaryship, and the directors, in consideration of his resignation, agreed to relieve him from (»•) Per Selborne, L.C., Black and Co.'s («) 31 Ch. Div. 120. Case, 8 Ch. 254-, 259. (a;) 4 D. J. & S. 749 ; 13 W. R. 852, (s) 4 Ch. 184; and see Wood's Case, 3 958; 34 L. J. (Cli.) 525; 12 L. T. 590, Do G. & J, 85, cited above. 717 ; and see E. p. Burton, 16 Jur. 967. (<) 9 Eq. 74 ; 5 Ch. 305. THE COMPANIES ACT, 1862. 67 further payments in respect of such shares as he had agreed to take; Sect. 23. and the directors were, by the articles of association, empowered " to enter into, alter, rescind, or abandon contracts, in such manner as they should think fit : " it was held that T. was not a contributory in respect of the re- maining 150 shares — for that he only agreed to take shares on the faith of his position as secretary, and before he had actually taken the 150 shares his occupation as secretary came to an end, and the directors, in exercise of "the power given them by the articles, relieved him from his obligation to take them (y). But, although the shares may have been accepted subject to a condition Condition pre- precedent, the condition may have been waived. cedent may be Thus, where the condition was the obtaining of a contract of which time '*^*''"'*''- was of the essence, and after the time had elapsed the shareholder delayed to set aside the transaction and to repudiate the shares, it was said that the contract to take the shares had become severed from the condition, and the shareholder was held fixed by laches (z). And so the auditor of a company has been held fixed in like manner, although the contract in consideration of which he agreed to take the shares was never given Mm (a). If a person sell goods to a company and receive shares in part payment. Payment by and be actually registered in respect of them, he will be a contributory, sharer for although the payment in shares be part of an agreement which becomes in ^°° supplied, other respects incapable of being carried out. Thus, where patentees agreed to sell their interest in letters patent to a company at a price to be paid partly in paid-up shares, partly in shares not paid up, and the remainder in cash, as and when the company should receive any money from payments on shares subscribed over and above the first £1000 ; and it was agreed that if the shares and cash should not be paid within two years the agreement should be void ; and the shares were issued, but the event on which the cash was to be paid never happened, and the company was wound up within the two years, the vendors were made con- tributories — for that the contract to take shares was complete (i). If the agreement be that the person selling goods to or doing work for the- company is to take payment in shares at the option of the company, and that option is not declared before the winding-up, he cannot afterwards be com- pelled to accept payment in shares of a company which is no longer a going concern (c). So far as shares are taken in payment of a debt due they are of course paid by set-off of the amount of the debt {d). If to an application for shares an answer be returned declaring an allot- Conditional ment of shares, but with a new term or condition introduced, there will be allotment. no contract. In the Leeds Banking Company Gases (e) the directors in issuing reserved shares addressed a circular to the shareholders offering them one new share for every five shares held by them, and asking whether, in the event of any shares remaining, they would wish to have any more allotted to them, the (j/) Tlvomas' Case, 13 Eq. 437. W. E. 41 ; and see Comp. Act, 1867, s. 25, (a) Sankin v. Sop and Malt Exchange n. ; and supra, pp. 47, 48. Co, aO t. T. 207. (e) Barrett's Case, 2 Dr. & Sm. 415 ; 3 (a) WTieatcroft's Case, 29 L. T. 324. D. J. & S. 30 ; 13 W. R. 541, 826 ; Ad- lb) Gore and Lurant's Case, 2 Eq. 349. dinelVs Case, 1 Eq. 225 ; Howard's Case, 1 (cy Sharon's Cfa'm.W. N. 1866, 231. Ch. 561; Jackson r. Turqmnd, L. K. 4 (d) Manchester Finance Corporation, Be H. L. 305. Matlock Old Bath Co., 29 L. T. 441 ; 22 F 2 68 THE COMPANIES ACT, 1862. Sect. 23. payment on any new shares taken up to be made by a day named. The shareholder's reply was in the form : " I agree to take shares, being my proportion of allotment, and shares in addition, if I can have them on the terms stated in your circular." This was held to constitute a contract as respects the shares, being the shareholder's proportion of allotment (/), and an application as respects the additional shares, to which an acceptance was required on the part of the company to constitute a contract. In their reply the directors stated that additional shares had been allotted, and that pay- ment must be made on a day specified or the shares would he forfeited. The condition as to forfeiture being a new term introduced, it was held in AddinelVs Case (g) and in Jackson v. Turquand (h) that as respected the additional shares there was no complete contract. In Barrett's Case (i) Barrett, after receiving the last letter, paid for the additional shares, and that constituted an acceptance. To an application for shares a company replied that shares had been allotted to the applicant, and that he must sign the memorandum and articles or the shares would be forfeited. He did not comply with the condition, but was nevertheless put upon the register. This being an absolute offer accepted with conditions, a bill to compel the appKcant to take the shares and pay the calls upon them was demurrable {K). So in Beck's Case (I), upon an amalgamation a shareholder of half paid-up shares in the selling company applied, according to the arrangement, for half paid-up shares in the purchasing company, but received an answer that shares had been allotted to him credited with the " proportionate amount of the net assets " of the selling company, which might be nothing at all. It was held that the answer contained fresh terms, and that there was no contract. In Harris' Case (to) H. applied for shares in a company on whose prospectus was printed in red ink : " Interest at the rate of 10 per cent, per annum will be paid for the first two years, for which interest warrants, payable half- yearly, will be attached to the share certificates." The notice of allotment contained in red ink the words : " As the interest warrants attached to the shares bear interest from the 21st of March, 1866, punctual payment of the above balance is requisite. The bankers are instructed not to receive pay- ments after that day without charging interest at 10 per cent, per annum.'' This was held to introduce no new term, but simply to work out the pro- vision in the prospectus, and the contract was therefore complete. Contract, In the Leeds Banking Company Cases (n) a circular relating to the issue of whether com- j-eserved shares contained this stipulation as to payment : " The amount must be paid to the bank on or before the 1st of October next (if paid before that time interest at £5 per cent, will be allowed) and the shares will then be entitled to one quarter's dividend at the end of the year." The shares were allotted in July. It was held that a person who on these terms agreed to take shares had an immediate right to the shares, although the time for payment was postponed ; that the purchase was not future, but was an out- (/) And see E. p. Tucker, 41 L. J. (Ch.) 2 J. & H. 625 ; 4 D. F. & J. 191. 157 ; 20 W. R. 88 ; 25 L. T. 654 ; Adams' (0 9 Ch. 392. ^aso, 13 Eq. 474, cited sup-a. (m) 7 Ch. 587 ; and see English and (g) 1 Eq. 225. Foreign Credit Co. v. Arduin, L. R. 5 H. L. (A) L. R. 4 H. L. 305 ; and see Capper's 64. ■Case, 19 L. J. (Ch.) 394; Waterford, fc, (n) Barrett's Case, 2 Dr. & Sm. 415- Co. V. Pidcock, 22 L. J. (Ex.) 146. 3 D. J. & S. 30 ; 13 W. R. 541, 826 ; Ad- (i) 2 Dr. & Sm. 415 ; 3 D. J. & S. 30 ; dinell's Case, 1 Eq. 225 : Jaclison v. Ttir- 13 W. R. 541, 826. qmtid, L. R. 4 H. L. 305. (i) Oriental Inland Steam Co, v. Briggs, THE COMPANIES ACT, 1862. 69 and-out purohase as from the time when the proposal was accepted ; and Sect. 23. that, therefore, although the company was wound up before the time for pay- ment arrived, the applicants were liable in respect of the shares. In Mallorie's Case (o), reserved shares being offered to shareholders and the executors of deceased shareholders, M. who was related to the surviving executrix of a deceased shareholder, but was not himself a shareholder or the executor of a deceased shareholder, filled up the form of application, and asked for shares to be allotted to himself. The directors allotted the shares to the executors, and sent the letter of allotment to M. It was held that there was between M. and the company no complete contract to take shares. P. applied for shares in a company, and received a reply that the directors " hereby allot you ten shares in the company on your paying on or before Friday the 11th instant " the sum payable on allotment. Before that day P. wrote to repudiate the shares on the ground of misrepresentations in the prospectus. It was held that the contract was in fieri until the 11th, and that P. had a right to repudiate up to that date {p). The case last mentioned went very near the line, and is remarked upon in Peek's Case (q). In this case P. applied for shares on which £1 was to be paid on application, and £4 more on allotment. The secretary in reply to his application wrote " the directors have allotted you eighty shares, on which shares £5 per share must be paid on or before the 15th inst." On the 10th P. wrote refusing to take the shares. The repudiation was held to be in- effectual, and P. was held to be a contributory. If a person take an allotment of shares in a company on the faith of a Alteration of prospectus detailing the scheme of its proposed operations, and subsequently scheme. the scheme is materially altered, his contract to be a shareholder in the first scheme will not necessarily bind him to the second (r), but in such a case laches and acquiescence for even a short time may conclude him (s). In scrip companies (t), where scrip certificates have been issued entitling Scrip com- the holders, on certain conditions complied with, e.g., payment of instalments P""^^- and registration, to shares, there will, if such conditions are conditions pre- cedent, be no completed contract until the conditions are complied with. The contract will be merely a contract entitling the scrip-holder at some future time to apply for or leceive an allotment of shares (u). And, at any rate, an allottee of scrip in such a case who sells his scrip before registration (a;), or whose scrip is forfeited for non-payment of instal- ments (y), is not liable for shares. But if an applicant have become and have been registered as a shareholder, and then the company, having no power to issue anything but shares trans- ferable by deed, issue to him scrip certificates transferable by delivery, and he deliver them to a purchaser, this does not discharge him from liability as a shareholder. For the transaction amounts at the most to an equitable contract that the company will accept the holder of the scrip certificates as a shareholder on the allottee doing all acts necessary to clothe him with that character ; but this cannot shift the legal liability (z). Where shares are taken in a company which is subject to a statutory pro- Suspended right to share: (o) 2 Ch. 181. illegal, see Table A. art. (8), note. (p) Pentelow's Case, 4 Ch. 178. (m) Ormerod's Case, 5 Eq. 110 ; Mcll- (j) 4 Ch. 532. wraith v. Dublin Trunk Railway Co., 7 Ch. (r) Goldsmid's Case, 16 Bear. 262 ; 134, 139. Meyer's Case, Ibid. 383. Cf. Make's Case, (x) Eustace v. DiMin Trunk Railway 34 Beav. 639. Co., 6 Eq. 182. (s) See infra, sect. 35, note. (y) K p. Collum, 9 Eq. 236. (t) Semble, scrip or shares not paid np (a) McEuen v. West London Wharves transferable to bearer are under this Act Co., 6 Ch. 655. 70 THE COMPANIES ACT, 1862. Sect. 23. vision that no share shall be issued to, or veSt in, the person accepting the ^ " same until a certain amount shall .have been paid up, such payment is not a condition precedent to liability upon the shares, but only to the rights of property in and transfer of them (a). However, if, in such a case, a transfer be made and registered, it may operate as a new contract between the company, the transferor, and the transferee. For, payment not having been made, the shares have not vested, and the company, by accepting the transfer, agrees to substitute the transferee for the transferor (b). Agreement to Where a person has become a shareholder in respect of shares purporting take paid-up ^Q ^jg^ \,t^j^ which are not in fact, paid up, it will often be a question whether shares. -^^ ^^ ^^ ^^ ^^^^ ^^ ^-^^ holder of shares of a different character from those which he intended to hold (c). If the matter rests in contract different considerations arise to those which apply to the case where the name has been placed on the register (c). A hand fide purchaser and transferee of shares which the company by the share certificates state to be paid who has no notice that the shares are not what they are certified to be, is not liable, although the shares have not in fact been paid (d). The liability of the shareholder is to be measured by his contract as based upon the statutory documents which are registered for the purpose of pro- tecting the shareholders on the one hand, and the creditors on the other. The Court cannot expand the contract, nor will it fix upon a party any en- gagement larger or other than that into which he has entered. The contract as it exists at the time of the winding-up is the sole measure of liability (e). And, therefore, where directors took a transfer of paid-up shares from the allottee, to whom they had been allotted in payment of purchase-money for property purchased from him by the company, and the validity of the purchase was impugned, it was held that the transaction could not be a£5rmed in part and repudiated in part, and that the allottee and his alienees, if shareholders at all, were holders of paid-up shares (/). So where the articles provided that the directors should receive certain paid-up shares, which were sufiBcient in number for their qualification, they could not be fixed with other unpaid shares for their qualification (g). Again, if an application for shares be made under a condition precedent which will ensure the shares being paid in full or in part, an allotment under which this condition is not satisfied is not binding (7i). In such a case the company have no authority to put the applicant on the register except as the holder of paid-up shares (i). And on a similar principle, where A. applied for shares on the faith of a memorandum of association, which stated the nominal value of each share (a) East Gloucestershire Railway Co. v. Comp. Act, 1867, s. 25. Bartholomew, L. E. 3 Ex. 15 ; Purdci/s (c) Wt^erhoiise y. Jamieson, L. E. 2 H. Case, 16 W. E. 660; McEnen v. West L., Sc. 29; Oiw-nVs (7as«, 3 D. J. & S. 367. London Mliarves Co., 6 Ch. 655. (/) Currie's Case,3 D. J. & S. 367 ; of. (6) Morton's Case, 16 Eq. 104. Curling's Cise, 1 Ch. Div. 115. (c) See Barangah Oil Co., Arnot's Case, (jr) Miller's Case, 3 Ch. D. 661 ; 5 Ch. 36 Ch. Div. 702 ; Railway Tables Co., E. p Div. 306. Sandys, 42 Ch. Div. 98 ; nud see Comp. (A) Beck's Case, 9 Ch. 392 ; Wynne's Act, 1867, s. 25, uote. Case, 8 Ch. 1002 ; Bailey's Case, W. N. (d) British Fanners Co., Xicolls' Case, 1869, 196 ; and see Schroder's Case, 11 Eq. 7 Ch. Div. 533 ; 3 App. Cas. 1004 ; Water- 131; Ifanchester Finance Co.'s Case, 29 fiouse V. Jamieson, L. R. 2 H. L., Sc. 29 ; L. T. 441 ; 22 W. E. 41. Spargo's Case, 8 Ch. 407, 410 ; cf. Bush's (i) Ashworth v. Bristol, ^c. Railway Case, 9 Ch. 554 ; and see Guest v. Worcester Co., 15 L. T. 561. Railway Co., L. E. 4 C. P. 9 ; see note to THE COMPANIES ACT, 1862. 71 to be £20, but before allotment a resolution was passed, which was not Sect, 23. registered, and of which A. had no notice until a year after he had trans- f erred his shares, increasing the nominal value of the shares to £40, A. was held liable on his contract for £20 shares only (k). But where a person by mistake of fact or law accepts shares which he believes to be, but which are not, paid up, he is liable in respect of them Q). And in the case of shares which for default of registration of a contract under s. 25 of the Companies Act, 1867, are unpaid, the company in enforcing calls by its liquidator is not taking advantage of its own wrong. For even assuming that it was a wrong of the company not to register the contract, the liability on the shares arises not from the failure to register the contract, but from the fact of taking shares and the provisions of the statute. No covenant not to sue, no accord and satisfaction, no agreement to register a contract, will satisfy the statute. There must be either payment or a registered contract (m). [And by way of illustration reference may be made to the case of trustees accepting shares "as trustees" and being thus registered as shareholders, but who nevertheless become personally liable (»i).] If, however, before the allotment is registered, while the matter rests in fieri, it be found that the shares are not, or cannot be treated as, paid up, and the invalid contract be repudiated on the part both of the shareholder and of the company, the applicant will not be a shareholder (o). And even if the entry have been made on the register, yet if, on sub- sequently finding that, by reason of the non-registration under Companies Act, 1867, s. 25, of the contract, the shares cannot be held as paid up, the shares be cancelled, and others issued after registration of a contract, the company has in fact only done what the Court would have done if applied to, and the allottee is, therefore, not liable on unpaid shares ( p). If the contract to take shares be founded upon a condition which is ultra Condition vires the directors, and which may, therefore, be repudiated by the share- «W™ vires. holder, semble, it may properly be abandoned by the directors, and treated as a nullity (j) : for there is no mutuality (r), and unless the alleged share- holder have done anything to preclude himself from rejecting the character of a member, he will not be a contributory (s). In cases where, upon an amalgamation, a shareholder in the selling Amalgama- company applies for shares in the purchasing company, and the amalgama- ti°°- tion is afterwards not completed, the question arises whether the application is or not subject to a condition precedent which has not been complied with. On this point the rule was, by Mellish, L.J., in Dougan's Case (t), stated to be as follows : — If the shareholder enters into no personal negotiation, and only acts through his own company, and does nothing but consent to and act on the amalgamation, then, unless the amalgamation is eventually completed, he is not bound (u). (A) Gustard's Case, 8 Eq. 438. 337. See s. 30, note. (0 See e.g. Dent's Case, 8 Ch. 768 ; (o) Bamett's Case, 18 Eq. 507. Railway Tables Co., E. p. Sandys, 42 Cii. (p) hartley's Case, 18 Eq. 542; 10 Ch. Div. 98; Cleland's Case, 14 Eq. 387; 157. Disderi ^ Co., 11 Eq. 242 ; E. p. Daniell, (q) Coleman's Case, 1 D. J. & S. 495. 23 Bear. 568 ; 1 De G. & J. 372 ; Nickoll's (/) Pellatfs Case, 2 Ch. 527. Case, 24 Beay. 639 ; Re Finance Co., 19 (s) Mnn's Case, 2 D. F. & J. 275, 295, L. T. 273; Imperial Silver Quarries Co., 299. 16 W. K. 1220. (0 8 Ch. 540, 546. (m) Zondon Celluloid Co., 39 Ch. Div. (m) Alabaster's Case, 7 Eq. 278 ; Dougan's 190. Cose, 8 Ch. 540, 546. (») Muir T. Glasgow Bank, 4 App. Cas. 72 THE COMPANIES ACT, 1862. Sect. 23. But if he have made a personal application to the purchasing company, and the shares are registered in his name, he is bound, although the amal- gamation goes off altogether (a;). Thus, where the application was made to, and all the negotiation con- ducted through, the liquidators of the selling company, and the applicant, although in fact registered, had never received notice of allotment or certificate of shares (y) ; and where a director of the selling company had sent in his share certificates to the secretary of his company to be exchanged, and certificates of the purchasing company had been forwarded to him in exchange, but he had not answered the letter or signed the receipt for the shares (z), the applicant was held not to be a contributory, the amalgamation having fallen through. But, on the contrary, where the application, although it referred to the amalgamation, was made to the directors of the purchasing company, and the shares were allotted and registered accordingly (a), and where there was no application, but the shareholders in the selling company were registered as having transferred their shares to the purchasing company, and the purchasing company sent them share certificates in the purchasing company in exchange, and a shareholder acknowledged the receipt of the certificates and retained them (b), an acceptance of shares in the purchasing company was held to have been made, independent of any question as to the validity of the amalgamation. But, of course, it does not follow that an application to the purchasing company is conclusive; it must be shewn that there was a concluded agreement. And, therefore, where the shares were allotted upon terms differing from those on which the application was made, the applicant was not bound (c) ; and the fact that the applicant, after allotment, wrote asking for the certi- ficates of his shares, did not, under the circumstances, bind him as an acceptance of the fresh terms (d). In another case (e) in the same company as the cases last cited, a contri- butory who had paid a call in the winding-up, and then, on the authority of those cases, applied to have his name removed from the list, was held entitled to relief and to repayment of the call. And so it may be that under an application referring distinctly to the transfer of the business, which it afterwards turns out cannot be effected, a conditional agreement only has been entered into, and the applicant may not be bound (/). But where, in sending in a printed form of application for shares in the purchasing company, which was an unlimited company, the applicant introduced after the name of the company the words "if limited," and shares were allotted to him, and he wrote for and received the certificates, he was bound : for the absence of the word " limited " after the company's name was notice to him of the nature of the company, and no effectual condition was therefore imposed by the words " if limited " ( Bird's Case, 4 D. J. & S. 200. D. 581. ik) Barrett's Case, 4 D. J. & S. 416. (e) Michardson's Case, 19 Eq. 589. - (0 Patent File Co., E. p. White, 1 6 (/) Seaveley's Case, 1 De G. & Sm. 530. L. T. 276. (g) Maxwell's Case, 24 Beav. 321 ; and (m) E. p. Panmure, 24 Ch. Dlv. 367. 76 THE COMPANIES ACT, 1862, Sect. 23. Underwritiug shares. Acquiescence by infant after attaining majority. Delay in allotment. Delay in completion. No allotment. winding-up order, which would for this purpose be a bar to a shareholder) that he had been induced to enter into the agreement by fraud. Again, his liability ought to be tried in an action, and not in the winding-up (m). A representation, however, by the promoters of an unregistered company that a certain amount of the capital has been subscribed, may be sufficient to render them liable in respect of that amount, or in respect of so much of it as they are unable to shew has been subscribed by other persons (o). An agreement to " underwrite " shares is an agreement that in the event of the public not taking up the whole or the number mentioned in the agree- ment, the underwriter will for an agreed commission take an allotment of so many of the shares as the public has not applied for. It is not a guarantee that the shares shall be taken or an agreement to "place" them, but is an agreement to take them if not taken by others ( p). An infant applied for shares, they were allotted to him, and his name was entered on the register. He attained his majority more than a year before a winding-up order was made, and having done nothing to repudiate the shares, was held bound by acquiescence (q). If after an application for shares an allotment is not made within a reason- able time, the applicant is not bound to accept the shares (r). Thus where M. and G. applied for shares on the 8th of June, and no allot- ment was made until the 23rd of November, before which date (viz. on the 8th of November) M. had withdrawn his application, but G. had not, it was held that neither M. nor G. was bound to accept the shares allotted to him (s). B. applied on the 6th Oct., 1865, for shares in a company which proposed to start at once, and to allot shares on the 14th Oct. The company was registered in Dec, and then issued a different prospectus. Notice of allot- ment was sent to B. on the 3rd Feb. 1866, and on the 7th Feb. he wrote to decline to take the shares. He made no application to take his name off the register until, a call having been made in Oct. 1867, he moved in Dec. 1867 to rectify the register by striking out his name. Held, that by reason of the delay before allotment B. was not bound by his application ; and that the company being a going concern, he was not prejudiced by the delay from Feb. 1866 to Dec. 1867 (0- If an agreement to take shares be not completed by the due performance of all acts necessary to make the applicant a shareholder, lapse of time will bar the right of either party to have it completed. The agreement will in such a case be insufScient to fix the applicant as a contributory, and the question is reduced to one of specific performance, to which the ordinary doctrines of equity apply (a). B. applied for shares, and paid the deposit. The company never com- menced operations, and after rather more than a year a winding-up order was made. The directors had retained and used B.'s deposit, and B. had (n) Gorrissen's Case, 8 Ch. 507. (o) Moore and Be La Torre's Case, 18 Eq. 661 ; and see infra, s. 200, n. (p) Licensed Victuallers Co., 42 Ch. Div. 1. (?) Ebbett's Case, 5 Ch. 302 ; and see s. 22, " Infant transferee ; " see, however, now the Infants Relief Act, 1874, 37 & 38 Vict. c. 62. (r) Oarmiohael's Case, 17 Sim. 163, 166 ; and sec Gunn's Case, 3 Ch. 40 ; Kitso's Case, 4 Ch. D. 774. (s) Samsgate Hotel Co. v. Montefiore, Same v. Goldsmid, L. K. 1 Ex. 109 ; and see Mathew's Case, 3 De G. & Sm. 234. In Gregg's Case, 15 W. R. 82, there was no allotment for thirteen months, but the applicant was nevertheless held liable. But, qucere, this decision cannot be sup- ported, V. supra, p. 58, note (x). (0 E. p. Baily, 5 Eq. 428 ; 3 Ch. 592 ; and see s. 35. («) Mackenzie's Case (Eur. Arb.), L. T. 141 ; 18 Sol. J. 223. THE COMPANIES ACT, 1862. 77 never applied for it to be returned ; but no allotment had ever been made to Sect. 23. him. He was held not to be a contributory (x). Where E., the surveyor of a benefit building society, purchased land of the society, and then mortgaged it to the trustees of the society by a deed which after reciting that he was a member, and had subscribed for a certain number of shares, and that the mortgage money had been advanced to him in respect of the shares, contained a covenant by him to mate payments on the shares, it was held that the deed, which E. believed to be an ordinary mortgage, did not represent the real transaction, and that E. was not a contributory {y). Where the power of allotting shares is vested in the directors, they cannot Delegation of delegate the power to a committee (z) unless authorized by the articles to * ^'^itteVof* do so (a). the directors. Executors may become personally liable in respect of their testator's Executors :— shares (6). Thus where the secretary of a company applied to] executors to have their accepting tes- testator's shares placed in the name of some responsible person, and the 1''''°'" ^ y"^^^^ executors in reply requested that the shares might be registered in their gp^j,] capacity • names, and all three of them signed a deed of acceptance, but the register ■was never altered, nor were fresh certificates given ; it was held that the deed was an acceptance personally of the shares, which up to that time they held as executors; and the regulations of the company allowing only one person to be registered as a proprietor in respect of the same shares, it was held that the three were received as a proprietor in their joint character, but for their individual benefit, and that, therefore, two of the executors being dead, the liability survived to the survivor (c). But it is not a personal acceptance of shares for executors to receive the dividends in their representative character (d). If, however, the company have dealt with the executor as a shareholder, the company cannot, after a lapse of time, insist on making him contributory in his representative instead of in his personal character (e). Again, if executors accept from a company after their testator's death new accepting new shares, they will as between themselves and the other contributories be ^"''"^^^• personally liable in respect of them, although they have been offered to and accepted by them in their representative character (/). " With respect to these shares they are personally liable, and can only look to their testator's estate for indemnity. If it were otherwise, the executor of an insolvent estate might purchase any number of shares, and keep them if they were profitable, but repudiate any liability if they turned out other- wise, and thus involve the company in an accoimt of the testator's estate. They have purchased these shares, whether with authority under the will or not is immaterial. They are therefore personally liable " {g). (x) Best's Case, 2 D. J. & S. 650 ; 34 J. 788. h. J. (Cli.) 523 ; and see Chesterfield and (d) St. George's Steam Packet Co., E. p. Midland Colliery Co., 14 W. R. 721; 14 Doyle, 2 H. &'t. 221; Hamer's Devisees' 1.^.50%; Land Shipping Colliery Co., E. p. Case, 2 D. M. & G. 366, 371; JBulmer's Harmoodand Others, 20 L. T. 736 ; Conway's Case, 33 Beav. 435 ; 12 W. E. 564 ; and see Case, 5 De G. & Sm. 150. Hall's Case, 3 De G. & Sm. 80 ; 1 Mac. & (!/) Empson's Case, 9 Eq. 597. G. 307. («) Howard's Case, 1 Ch. 561 ; and as to (e) Gunn's Case (Eur. Arb.), L. T. 118. delegation of powers, see Cartmett's Case, (/) Fearnside and Dean's Case, Dobson's 9 Ch. 691. Case, 1 Ch. 231 ; Jacksonr. Turquand, L. R. (a) Harris' Case, 7 Ch. 587. 4 H. L. 305 ; Duff's Executors' Case, 32 Ch. (6) Buchan's Case, 4 App. Cas. 549; see Div. 301. in Mallorie's Case, 2 Ch. 181, as to the liability of executors, !s. 76, u., M. was not executor, and Table A., (12), n. (?) Spence's Case, 17 Beav. 203. (c) Alexander's Case (Alb. Arb.), 15 Sol. 78 THE COMPANIES ACT, 1862. Sect. 23. Sale of testa- tor's business for shares. Trustees. Married woman. If once shares are put into the names of executors [with their consent] - individually, although they have a right of indemnity against the estate they are liable personally with that right of indemnity, and they cannot say that their liability is to be only a liability to the extent of the assets of the testator Qi). Where a will contains a power of sale of the testator's business, but not in so many words a sale for shares (which is in law not a sale but an exchange), endeavour has in more than one instance been made to carry through a sale for shares in the form of a compromise in an administration action. Such an order was made by Jessel, M.E., in chambers in one case relating to a very large estate, and in West of England Bank v. Murch (i). Fry, J., found his way to support such a sale by the executrix and the testator's partner on the footing of its being a compromise under s. 30 of 23 & 24 Vict. c. 145. But the Court has no general power to do what it thinks best in disposing of property, so that, e.g., in winding up a partnership it has no authority to sell for shares (k). A trustee of shares is personally liable in respect of the shares, and can only look to his cestui que trust for indemnity, and this though the company itself be the cestui que trust (J). The following authorities upon the law before the recent Married Women's Property Acts will still be valuable. A married woman may become a shareholder in her own right so as to bind her separate estate, if it appears that the contract was entered into upon the credit of her separate estate, and the deed of settlement do not exclude married women from being shareholders, and she may be put on the list of contributories in respect of the shares (m). But her husband may, it appears, in such a case be put upon the list too (m), unless the rules of the company exclude the husband from being a shareholder in respect of his wife's shares, and the company have with know- ledge accepted the wife as shareholder, without any participation on the part of the husband (o). If a female shareholder marries and the company is afterwards wound up, the husband, whether he have or not reduced the shares iato possession, and although he have not taken the steps necessary for entitling himself to become a member, is liable, and the right course is to settle both husband and wife on the list of contributories, so that if the wife survive, her liability may survive also (jp). Where, however, the husband, not having become a member in respect of his wife's shares, survived his wife, it was held that he was liable only in respect of losses incurred during the coverture (j). Where a female shareholder married, and six years afterwards the com- pany, never having had knowledge of the marriage, was wound up, both husband and wife were put upon the list (?•). So where a female trustee (7i) Dufs Exemtors' Gisc, 32 Ch. Div. 301, 309. (0 23 Cli. D. 138. (It) Niemann v. Niemann, 43 Ch. Div. 198. (0 See 6. 80, n. (m) Mrs. Mathewman's Case, 3 Eq. 781 ; London, Bombay, ■) London and Provincial Telegraph Co., 9 Eq. 653. (A) Barton v. L. ^ N. W. Railway Co., 24 Q. B. Div. 77. (J) Barton v. North Staffs. Railiuau Co., 38 Ch. D. 458. THE COMPANIES ACT, 1862. 83 And any company acting in contravention of this section shall Sect. 26. incur a penalty not exceeding five pounds for every day during which its default in complying with the provisions of this section continues, and every director or manager of the company who shall knowingly and wilfully authorize or permit such contraven- tion shall incur the like penalty. (a) Where share ■svarrant issued, v. Comp. Act, 1867, s. 31 ; where capital. conTerted into stock, s. 29 of this Act. The register may consist of different books which by reference from one to " One or more the other supply all the information required by this section (m). It was tooks." held (though not necessary for the decision) in Sand's Case (n) that a com- pany which has foreign as well as English shareholders may keep one register abroad and another at home (n). It is conceived that this is not so : the Companies (Colonial Eegisters)' Act, 1883, was passed to cover the diflcnlty of there being no legal provision for keeping local registers. A transferee of shares who has not notice to the contrary is entitled to " Amouut rely upon the company's statement in the register and certificate of the P^id." shares of the amount paid on the shares he purchases, and he cannot be made liablefor such amount, although it has not in fact been paid (o). An account is to be kept of the amount paid, or agreed to be considered as paid, on the shares of each member. Qucere, whether, having regard to this section, an agreement can be supported by which a member advances a sum of money to the company on the understanding that if the company goes on it is to be treated as a loan and repaid with interest ; but that if the com- pany is wound up it is to be treated as paid upon shares in anticipation of calls {p). If shares be paid in whole or in part, not in money, but in money's worth. Payment in the directors will properly state on the register that the shares are to the monej's worth. extent of such money's worth paid up, although no money has passed (g) ; but as to so much as is not paid the shareholder's obligation is to pay in cash ; and, semble, a contract on the part of the company that calls shall be set off against goods to be supplied by the shareholder instead of being paid in money is ultra vires (r). 26. Every company under this Act, and having a capital divided Annual list of into shares (a), shall make, once at least in every year (|3), a list of all persons who, on the fourteenth day succeeding the day on which the ordinary general meeting (y), 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 therein mentioned, and the number of shares held by (m) Weikersheim's Case, 8 Ch. 831, 836. (p) Barge's Case, 5 Eq. 420. (re) 32 h. T. 299. (g) Angksea Colliery Co., 2 Eq. 379 ; (o) Nicolls' Case, BurUnsMw v. Nicolls, 1 Ch. 555 ; and see cases under s. 23. 7 Ch. Div. 533 ; 3 App. Cas. 1004 ; WaUr- (r) Pellatt's Case, 2 Ch. 527 ; E. p. house V. Jamieson, L. E. 2 H. L. Sc. 29 ; Clark, 7 Eq. 550 ; and see mpra, p. 48 ; Spargo's Case, 8 Ch. 407, 410 ; and see and Table A. (4), note, and Comp. Act, Guest V. Worcester Railway Co., L. K. 4 C. P. 1867, s. 25, infra. 9 ; and Comp. Act, 1867, s. 25, n. G2 84 THE COMPANIES ACT, 1862. Sect. 26. each of them, and sball contain a summary specifying the follow- ing particulars (S) : (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 commencement of the company up to the date of the summary : (3.) The amount of calls made on each share : (4.) The total amount of calls received : (5.) The total amount of calls unpaid : (6.) The total amount of shares forfeited : (7.) The names, 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 (e) 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 Eegistrar of Joint Stock Companies. (o) As to other companies, s. 45. Comp. Act, 1867, s. 32 ; where capital (|8) Ze., a year from 1st Jan. to 31st conrerted into stock, s. 29 of this Act ; Dec. : Gibson v. Barton, L. E. 10 Q. B. where capital reduced under Comp. Act, 329 ; Edmonds v. Foster, 33 L. T. 690. 1880, v. s. 6 of that Act. (7) s. 49. (€) Sch. IL, Form E. (5) Where share warrant issued, v. It appears that this list will not necessarily shew what amount of capital is uncalled. Thus, on the one hand, if the regulations of the company provide that a certain proportion of profits shall not be paid to, but shall be credited in account to, the shareholders by way of addition to the amount paid on their shares, this will not appear in the accounts directed by (3) and (4) of this section, but the amount remaining uncalled will be pro tanto diminished (s). The list, therefore, will not shew this at all, for (5) is of course only an account of calls made and not paid. On the other hand, if bonuses have been improperly paid out of capital, a shareholder may be liable whose shares appear upon the list as paid up (<). It is not always easy to say what is a repayment of capital. Where company A. sold its business to company B., and the shareholders in company A. (who were fully paid up) took in payment shares in company B., it was held that this was not a return of capital so as to make the shares no longer fully paid («). Forfeiture. A forfeiture is not invalidated by the fact of its not having been noticed in the register of members or in this list (x). (s) Cattle's Case (Eur. Arb.), L. T. 18 ; H. & M. 528. Reil. 27; 17 Sol. J. 29. («) Cardiff Coal Co., K p. Norton, 9 L. (0 Murrough and Chanxbcrlmn' s Cases T. 186 ; 11 W. R. 1007 ; 2 N. R. 562 ; and (Alb. Arb.), 16 Sol. J. 483; Lord Digbifs see Cardiff Coal Co. v. Norton, 2 Eq. 558; Case (Kur. Arb.), L. T. 150 ; 18 Sol. J. 2 Ch. 405. See this case referred to by 184; and see Stringer's Case, 4 Oh. 475 ; Lord Cairns in Murrough and Chamher- Jiance's Case, 6 Ch. i04 ; Ilabershon's Case, Iain's Cases (Alb. Arb.), 16 Sol. J. 483. 5 Eq. 286 ; Syies' Case, 13 Eq. 255 ; {x) Lyster's Case, 4 Eq. 233. McDoiujall V. Jersey Imperial llutel Co., 2 THE COMPANIES ACT, 1862. 85 27. If any company under this Act, and having a capital divided Sect. 27. into shares, makes default in complying with the provisions of this penalty on Act with respect to forwarding such list of members or summary company, &c., r o •/ not keeping a as is hereinbefore mentioned to the registrar, such company shall proper incur a penalty not exceeding five pounds for every day during "^'^ "' which such default continues, and every director and manager (a) of the company who shall knowingly and wilfully authorize or permit such default shall incur the like penalty (j3). (a) Including a manager de son tori, O) As to companies engaged in or Gibson v. Barton, L. R. 10 Q. B. 329, and see formed for working mines in tlie Stan- Edmonds v. Foster, 33 L. T. 690 ; Coventry naries, see further Stannaries Act, 1887, and Dixon's Case, 14 Ch. Div. 660. s. 31. Upon a STimmons for penalties the justices or magistrate have jurisdiction to inquire into the truth of the statements contained in the list and summary, and are not precluded from hearing evidence by the fact that the list and summary are in accordance with the register. The jurisdiction to rectify the register no doubt resides under s. 35 in the High Court, but the register is only prima facie evidence, and upon evidence that the register contains ficti- tious entries^ the magistrate may treat the summary as false, although he cannot rectify the register (j/). ' 28. Every company under this Act, having a capital divided Company to into shares, that has consolidated and divided its capital into fonsoi'id'Jtioa^ shares of larger amount than its existing shares, or converted or of conver- any portion of its capital into stock (o), shall give notice to the in™ stock!' * Eegistrar of Joint Stock Companies of such consolidation, division, or conversion, specifying the shares so consolidated, divided, or converted. (o) s. 12 ; Sch. I., Table A. (23) -(25). 29. Where any company under this Act, and having a capital Effect of con- divided into shares, has converted any portion of its capital into J^^r °°info stock (a), and given notice of such conversion to the registrar (|3), stock. all the provisions of this Act which are applicable to shares only 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 (7), and the list of members to be forwarded to the registrar (S), 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. (o) B. 12 ; Sch. I., Table A. (23)-(25). (7) s. 25. 03) B. 28. (S) s. 26. 30. No notice of any trust, expressed, implied, or constructive, ^''J^ i°tc'r "**^ shall be entered on the register, or be receivable by the registrar, in the case of companies under this Act and registered in England or Ireland. (y) Briton Medical Association, 39 Ch. D. 61. 86 THE COMPANIES ACT, 1862. Sect. 30. This section, it will be observed, does not extend to Scotland, and the exception arose from the fact that it was the Scotch practice to notice Scotland. trusts in the transfer and registration of stocks. The practice, however, ■was " not for the purpose of altering the liability of the holders of such stock as compared with the other holders of stock in the same company, but only for the purpose of marking the stock as the property of the particular trust" (z). Even in Scotland, therefore, the result of the acceptance of stock "as trust disponees," the signature of the transfer "as trust disponees," and the registration in the company's books "as trust disponees," is to leave the trustees personally liable, and not to limit their liability to the trust estate (a). For in construing the words " as trust disponees," a construc- tion must if possible be adopted which will make the contract between the shareholders and the company a valid one having regard to their respective powers of contracting. If, therefore, the trustees were con- tracting with a person competent to make any contract he pleased, a contract by them "as trustees" would, no doubt, mean that they con- tracted not as individuals, but so as to bind only the trust estate (h). But an unlimited company [or qucere a limited company either] has no power by law to fix any limit of liability upon the shares except by virtue of the statute, and it cannot accept A. as a shareholder except upon the terms that A. shall be liable. The words " as trustees," therefore, must in such case be construed, not so as to import a contract which is not competent to the company, but as referring to an identification of the trust property for the protection of the cestuis que trust (c). Where the company certifies A. to be holder " in trust " a transferee may be bound to inquire whether the transfer is authorized by the nature of the trust (d). The case of an executor as distinguished from a trustee is in some respects different. For an executor has a representative character, and if he simply intimates to the company his title as executor in order to claim his rights as legal personal representative, and makes or gives no request or authority to register his name as shareholder, he need not become personally liable (e). Comp. Act, 1862, s. 76, distinctly recognises representative liability in the case of executors. Under the Companies Clauses Act the statutory provisions are, and therefore the result is different (/). Notice. This section does not provide, as did the Act of 1856 (g), that notice of a trust shall not be receivable by the company ; but, as respects liability to creditors, at any rate, such notice would be of no effect (A). The object of the section is to relieve the company from taking notice of equitable interests in shares, and to preclude persons claiming under equitable titles from converting the company into a trustee for them. As between (z) Per the I.oi-d President, Miiir's Case, vol. iii. p. 89 ; Bell's Case, 4 App. Cas. 547. Court Sess. Cas., 4th series, vol. vi. p. 400 ; (d) Bank of Montreal v. Sweeny, 12 App. Scottish Law Reporter, vol. xvi. p. 147 ; Cas. 617. and see Zumsden v. Buchanan, Court. Sess. (e) Glasgow Bank, BtKhan's Case, 4 Cas., 3rd series, vol. ii. p. 695 | and vol. iii. App. Cas. 549, 588, 594; and see Table A. (H. L.), p. 89 ; 4 Macq. 950. art. (12), note. (a) Muir V. Glasgow Bank, 4 App. Cas. (/) Barton v. L. ^ N. W. Eailwau Co 337. 24 Q. B. Div. 77. (6) Gordon v. Campbell, 1 Bell's App. ((/) 19 & 20 Vict. c. 47, s. 19. As to 428 ; Court of Sess. Cas., 2nd series, vol. ii. the effect of this section, see S. p. Stewart P- 639. Be Shelley, 13 W. E. 356 ; 11 Jur. (N.S.) (o) Muir v. Glasgow Bank, 4 App. Cas. 25 ; 34 L. J. (lik.) 6. 337 ; Zumsden v. Buchanan, 4 Macq. 950 ; (A) Chapman and Barker's Case, 3 Eq. Court Sess. Cas., 3rd series, vol. ii. p. 695, 361. THE COMPANIES ACT, 1862. 87 successive equitable mortgagees of shares, therefore, priority will be de- Sect. 30. termined by priority of charge, not by priority of notice (»). An equitable assignee or mortgagee can no doubt sue the company in a proper case (h)- And if he desires to assert his equitable title as against the company, he should apply under 5 Vict. c. 5, s. 4, and Order XL VI. for an order restrain- ing the company from allowing a transfer to be made (Q. No doubt, too, if the directors receive notice of an equitable claim they ought to allow time for a proper restraining order to be obtained (I). But the company is not bound to receive or record notices of equitable interests, and such a notice cannot affect the company with any trust (m). Again, the section does not render inapplicable to a company the principle Lieo, of Eophinson v. Eolt (n). So that where the articles of association give the company " a first and permanent lien and charge " for the debts of the holder, the company cannot claim priority in respect of moiley becoming due from the holder to the company after notice of security given upon the shares to another person (o). In such a case, the notice is not notice of a trust, but is a notice affecting the company in their capacity as traders (o). Where trustees of a marriage settlement invested part of the trust funds in the shares of a company under whose articles the company had a lien on shares for sums due to the company from the member, and one of the trustees was a member of a firm which, some years after the shares were purchased, failed and then owed the company money, it was held that the equitable lien of the company prevailed over the title of the cestuis que trust under the marriage settlement (jp). The company's lien attaches only for the debt of the registered holder. If in fact he is, and the company knows that he is, and even if it has been judicially determined that he is trustee for another, the company cannot assert a lien for the debt of the cestui que trust (q). As between himself and the company, the trustee whose name is on the Liability of register is the shareholder, and is the person holding " in his own right," trustee of e.g., for the purpose of qualification as a director (r) ; and he, and not the ^°^'^*^- cestui que trust, is the person liable to the company for all payments and obligations attaching to the shares (s) ; moreover, his liability is not, and cannot be (t), limited to the amount of the trust estate (u). The liability of the trustee, too, is the same even when the company itself is the cestui que trust (x). (i) Soc. Generale v. Tramways Union, 1887, 30. 14 Q. B. DiT.425 ; Soc. Generale y. Walker, (r) Pulbrook v. Eichmond Co., 9 Cli. D. 11 App. Cas. 20. 610. But see Bainbridge r. Smith, 41 Ch. (X) Binney r. Ince Hall Coal Co., 35 Div. 462 ; Beeves v. Bainbridge, W. N. L. J. (Ch.) 363. 1889, 228. (T) Soc. Generale v. Tramways Union, 14 (s) U. p. Isaac Bugg, 2 Dr. & Sm. 452 ; Q. B. Div. 453. 13 W. K. 911 ; 12 L. T. 696 ; Bunn's Case, (m) 11 App. Cas. 30. 2 D. F. & J. 275, 300 ; Drimmond's Case, (») 9 H. L. C. 514. 2 Giff. 189 ; Barrett's Case, 4 D. J. & S. (o) Bradford Banking Co. v. Briggs, 12 416 ; cf. the cases as to executors, supra, App. Cas. 29 ; S. C. 29 Ch. D. 149 ; 31 Ch. p. 77, and mortgages, p. 73. Div. 19. Miles v. New Zealand Co., 32 (*) Muir v. Glasgow Bank, 4 App. Cas. Ch. Div. 266, must be taken as over-ruled 337. by this case. " (m) Scare's Case, 2 J. & H. 229 ; Leif- (jj) New Lcmdon and Brazilian Bank v. child's Case, 1 Eq. 231. Brockebank, 21 Ch. Div. 302. Quwre this (») Chapman and Barker's Case, 3 Eq. case since Bradford Banking Co. v. Briggs, 361 ; Universal Banking Corporation, E. p. 12 App. Cas. 29, if the company had notice Ghallis, 16 W. R. 451; 17 L. T. 637,; that the trustees held as trustees. Easum's Case (Alb. Arb.), 15 Sol. J. 750 ; (g) Mexican Mining Co., Be Perkins, 24 Cree v. Somemail, 4 App. Cas. 648. Q. B. Div. 613 ; Tstalyfira Gas Co., W. N. 88 THE COMPANIES ACT, 1862. Sect. 30. One of the objects of the section is to free, not the company only, but creditors also, from the responsibility of inquiring after persons for whom shares are held in trust ; the trustee, therefore, cannot escape personal liability in respect of the shares standing in his name. If there are several trustees their liability is in solido, each for the total amount of which they are joint holders, and not pro raid parte each for his proportion (y). But if it have been part of the bargain between the company and its trustee that the trustee shall not be put on the register except by his own direction, and he accordingly has not been registered before the winding-up, the liquidator cannot afterwards register him and make him a contributory (z). If the shares have not become vested by transfer in the trustee, and he is therefore not in fact a member, he will of course not be liable (a). Charging jj. jjg^g jjggjj j^gj^ ^j^^^ shares of which the registered owner is trustee for another, may be made the subject of a charging order under 1 & 2 Vict. c. 110, s. 14, upon a judgment obtained against the registered holder (6). But it is difScult to understand how for this purpose such shares are standing in the name of the judgment debtor " in his own right " (see ante, p. 56) ; and a subsequent decision (c), and a case before Malins, V.C, where his Lordship discharged a charging order obtained against a son upon stock standing in his name in trust for his father (d), seem inconsistent with such a view of the statute. The words of the statute are, " standing in his name in his own right, or in the name of any person in trust for him : " the beneBcial interest of the cestui que trust in" the shares may therefore be charged (e), and none the less so if the trust be not for him simpliciter but for him and others in settle- ment (/) ; but an interest in the general residue of a testatrix' estate, in- cluding the produce of sale of shares subject to a prior trust for payment of the testatrix' debts, is not an interest in the shares capable of being charged (g). Trustee's right _^g between the trustee and the cestui que trust, the latter is the share- m emni y. j^^j^gj.^ j^^^ jg bound to indemnify the trustee against all liabilities attaching to the shares (A). This right to an indemnity, however, is a question between the trustee and the cestui que trust only. If the company itself be the cestui que trust, the right to an indemnity will be a question between the trustee and the company — i.e., the other shareholders — which the trustee may assert in a proper way, but it cannot be asserted against creditors and the external world— see sect. 38 (7) (i). Saunders' Case (k) is not an authority against the rule above stated; for in that case Saunders' name was not on the register ; and the Lord Justice held that the company could not insist on putting their own trustee on the list of contributories (l). (« is between the creditor and the company." The creditor's remedy is against ™'"P'"'y- (y) L. R. 2 H. L. 325. (6) Akx. Mitchell's Case, 4 App. Cas. (z) Tennent v. Glasgow Banlt, 4 App. 548 ; RutherfurcCs Case, Ibid. ; Nelson Cas. 615, 621; of. Sunderland Building Mitchell' s Case, Vaii. ^ii. Sac, 24 Q. B. D. 394; North British (c) Taurine Co., 25 Gh. Div. 118. Building Soc, Carrick's Case, 22 Sc. L. E. (d) London and Leeds Bank, W. N. 1887, 833. 31, 56 L. T. 115 ; 56 L. J. Ch. 321. (a) Tennent v. Glasgow Bank, 4 App. (e) Seese Biver Silver Mining Co., 2 Ch. Cas. 615, 621, 622. 604, 616. 118 THE COMPANIES ACT, 1862. Sect. 35. the company, not against the shareholder. " There is no doubt that the direct remedy of a creditor is solely against the incorporated body " (/). But although the liability of the shareholders is not under a contract with the creditors (so that except there be a winding-up order the creditor cannot touch the shareholder (g) ), yet it is a statutable liability, under which the creditors have a right which attaches upon the shareholders to compel them to contribute to the extent of their shares towards the payment of the debt of the company Qi) ; and the change from a right to levy execution to a right to wind up the affairs of the company does not affect the question who are liable to the creditors ; and, therefore, according to the principle acted on in Henderson v. Eoyal British Banh (i), the member who is a member at the commencement of the winding-up is liable as a contributory {k). And it is not competent for the shareholder to say that all the creditor can look to is the assets of the company, and that therefore the only question is of what those assets consist ; that this question is one between the company only and the persons who have to furnish the assets ; and that, therefore, whatever equities there may be between himself and the company, the liquidator can only take the rights of the company subject to such equities, and subject, therefore, to his right to be relieved from the contract induced by the fraud of the company. For though, as between himself and the company, he may have a good legal or equitable defence, he may still be statutably liable to contribute to the assets required for the payment of the company's debts (I). The official liquidator is bound to collect all the assets of the company and distribute them by the direction of the Court among the creditors, and is in a position in which he may assert rights as against the company, and may assume a position against the members of the company which the company itself might not be in a position to assert (m). The winding-up calls into existence new rights and imposes new liabilities which did not exist before the winding-up, and which can be enforced only in the winding-up (n). The following are Lord Westbury's words : — " I take it to be quite settled that the rights of creditors against the share- holders of a company when enforced by a liquidator must be enforced by him in right of the company. What is to be paid by the shareholders is to be recovered in that right. What is due to the company is that only which is in fact recoverable by the company. The liquidator, therefore, standing in the place of the company, the question is, has he a right to impeach the memorandum, set aside the articles, reduce the certificate, and recover in right of the company that which the company could not for one moment as against a land fide shareholder be entitled themselves to recover ? " (o). But these words are not in conflict with what precedes, for if the statute gives to the company, whether it be a going company or whether it be in (/) Per Lord Cranworth, Oakes v. Tur- Jamicson, L. E. 2 H. L., Sc. 29, 32 ; and qmnd, L. E. 2 H. L. 325, 357. lesse],M.R.,-mNationalFundsCo.,WCh.'D. ((/) Accidental and Marina Insurance 123. Corporation, 5 Ch. 428 ; see further, s. 38. (n) See National Funds Assurance Co., (/i) L. E. 2 H. L. 356. 10 Ch. D. 118, 125 ; Wiitehouse &■ Co., (0 7 E. & B. 350. 9 Ch. D. 595, 599 ; Burgess' Case, 15 (/i) Oakes V. Turquand, L. E. 2 H. L. Ch. D. 507, 511. 325, 364. (o) Waterhouse v. Jamieson, L. E. 2 (0 See per Lord Crauworth in Oakes v. H. L., Sc. 29, 37 ; and see He Duckworth, Turquand, L. E. 2 H. L. 325, 357 ; and 2 Ch. 578, 580, Cairns, L.J. ; Dronfield Co., further, s. 38. 17 Ch. Div. 76, 96 ; see also note to s. 94. (m) See Lord Hatherloy in Waterhouse v. THE COMPANIES ACT, 1862. 119 liquidation, particular rights, the enforcement of such rights is hut an en- Sect. 35. forcement in right of the company. Thus, e.g., assume a sale for fully paid shares, and an allotment of the shares and entry of the allottee on the register of memhers, but default in the registration of a contract under s. 25 of the Companies Act, 1867. It is true that after winding-up the allottee cannot have rectification, and that he is and must remain liable upon the shares. But this is not by reason of any alteration of the contractual rela- tions, but by reason of the statutory provisions of s. 25 of the Companies Act, 1867, which give the company a right to cash which can be excluded only by the registration of a contract (p). It is not in fact universally true that a liquidator is in no better position than the company. Where winding-up has put an end to the right to recti- fication, or where the statute gives him a new right, the liquidator is in a better position (p). If before the commencement of the winding-up [or the stoppage of 'S«) As to these, see L. K. 4 C. P. 53 ; 1002; Seck's Case, 9 Ch. 392; Nelson's and Grissell v. Bristowe, t.R. 3 C. P. 112; Case, W. N. 1874, 196. See also Railway Ibid. 4 C. P. 36 ; Bowring v. Shepherd, Tables Co., E. p. Sandys, 42 Ch. D. 98, 106. 6 Q. B. 809 ; and other cases cited infra. (d) Sand's Case, 32 L. T. 299. (A) Coles v. Bristowe, 4 Ch. 3 ; Grissell («) 5 Eq. 293, 298. v. Bristowe, L. E. 4 C. P. (Ex. Ch.) 36 ; (/) See cases cited below, and ShepJierd Niokalls v. Merry, L. R. 7 H. L., 530 ; and V. Gillespie, 3 Ch. 764. numerous other cases cited below. (a) As to the business of a jobber, see (0 Dent v. Niokalls, 29 L. T. 536 ; 30 L. R. 3 C. P. 137. L. T. 644 ; 22 W. R. 218. (h) See L. R. 7 H. L. 539. 136 THE COMPANIES ACT, 1862. Sect. 35. If S., through A., sell to X., and P., through B., purchase from Z. shares : in a company, and by virtue of intermediate dealings between X., Y., and from^ultimato ^^ the name of P. is on the « name-day " passed to A. as the name of the "^^ ' ultimate purchaser ; and S. accept P. as the purchaser, and execute and deliver to him a transfer of the shares, and the price of the shares is paid to S., a contract is thus by implication created between S. and P. (m), of which S. may enforce specific performance (n), or in respect of which he may call upon P. for an indemnity if, in consequence of the winding-up of the company, r.'s name cannot be substituted for his on the list of shareholders. In the latter case S. might under the old practice have proceeded either by suit in equity for repayment of calls and indemnity in respect of future calls (o), or by action at law (p). From the cases cited in the last two notes it will be seen that the price paid by P. and received by S. may be, and generally is, different, the balance being settled between the intermediate parties ; that S. may be called upon to transfer his shares to several purchasers, buyers of a smaller number of shares than S. sells, and that on the other hand (_q) if P. be the purchaser of a larger number of shares than S. sells, P.'s ticket may be " split " (r) and S. become his transferor in respect of a portion of the shares P. has bought. In Fenwick y. Buck (s) S. did not sell until fourteen days after the settling- day for which P. bought. S., however, sold not for the account but for cash, and it was held that, although a broker cannot carry over from one settling- day to another without his principal's consent, this was not such a carrying over, but was only a delay in completion. If the broker carry over without the principal's consent, the contract is at an end so far as the principal is concerned (t). from concealed If P. give the name of a person of no substance as transferee, and the principal ; shares are accordingly transferred to him as a mere nominee for P., S. can in equity pass over the nominee and enforce his right to indemnity against P., the real purchaser and equitable owner of the shares for whom S. has, in fact, become a trustee («). It was held in Torrington v. Lowe (x) that S. could not in such a case make P. liable at law ; but, queers, whether this case was rightly decided (y). The same principle applies where P. gives the name of a person under legal disability, as an infant, and the shares are in consequence thrown back upon S.'s hands. S. may in such a case enforce his right to indemnity against P. (z). (ni) Coles V. Bristowe, 4 Ch. 3, 11. Bmcring v. Shepherd, L. E. 6 Q. B. (Ex. (n) Sheppard v. Murphy, I. E. 1 Eq. Ch.) 309 ; Street v. Morgan, 21 L. T. 432, 490 ; Ibid. 2 Eq. 544 ; 16 W. E. 948 ; Paitie where the ultimate purchaser sued was a V. Hutchinson, 3 Eq. 257 ; 3 Ch. 388 ; Miis- country broker whose customer could not grave and Harfs Case, 5 Eq. 193. There take the shares. is an implied contract that the purchasing (i?) See Bowring v. Shepherd, L. R. 6 broker shall furnish the name of a respon- Q. B. 309. sible transferee, and if he do not do so, as, (;•) See L. R. 6 Q. B. 314. e.g., by giving the name of a foreigner (s) 19 W. R. 597 ; 24 L. T. 274 ; and domiciled abroad, a Court of Equity will see on the same point Sheppard v. Murphy, not enforce a transfer: Goldschmidt v. Jones, I. R. 1 Eq. 490; Ibid. 2 Eq. 544; 16 22 L. T. 220 ; and see Allen v. Graves, h. R. W. R. 948 ; Crabi v. Miller, 24 L. T. 219, 5 Q. B. 478. 892. (o) Jlvans V. Wood, 5 Eq. 9; Hawkins r. (t) Maxted v. Morris, 21 L. T. 535. Jfai%, 4 Eq. 572; 3 Ch. 188; 6 Eq. 505; (u) Castellan v. Bobson, 10 Eq. 47; 4 Ch. 200 ; Hodqldnson v. Kcllti, 6 Eq. 496 ; Nickalls v. Fumeaux, W. N. 1869, 118 Fenwick v. Buck, 19 W. R. 597 ; 24 L. T. {x) L. R. 4 C. P. 26. 274; Pender v. Fox, W. N. 1872, 151; (i/) See L. R. 6 Ex. 167. Crahh v. Miller, 24 L. T. 219, 892. («) Brown v. Black, 15 Eq. 363; 8 Ch. (p) Davis V. Haycock, L. R. 4 Ex. 373 ; 939 ; Maynard v. Faton, 9 Ch. 414. THE COMPANIES ACT, 1862. 137 In Brown v. Black (a) S. sold fifteen shares, and three persons, P.i, P.j, and Sect. 35. P.g, gave separate instructions to the same broker to purchase for them thirty shares each. The ninety shares purchased (S.'s fifteen shares being a part of them) were all transferred together into an infant's name, and never appropriated between P.,, P.^, and P.j. Upon S.'s bill for indemnity, the other sellers not being parties, it was held that the defendants P.i, P.j, P.j, must each indemnify in respect of five shares. Where the buyer has become bankrupt after the commencement of the from bankrupt winding-up, his liability to the seller is not, by virtue of sects. 75 and 76, ''"y"'! provable in the bankruptcy, and the bankruptcy is therefore no bar to the seller's claim for indemnity in respect of calls (S). If S. through A. sell to X., a jobber, shares in a company for the account, from jobber ; " the contract of the jobber is, that at the settling-day he will either take the shares himself, in which case he would, of course, be bound to accept and register a transfer and to indemnify, or he will give the name of one or more transferees, [being persons able and willing to contract (c),] names to which no reasonable objection can be made, who will accept and pay for the shares. The jobber may perform either alternative ; and if, electing to perform the latter alternative, he sends in names [of persons able and willing to con- tract (c)] which are accepted, and to which transfers are executed, and those transfers are taken and paid for by the transferees or their brokers, the jobber is then and at that stage relieved from further liability, and the liability to register and indemnify is shifted to the transferees " (d). This shifting of the liability from the jobber to the transferee does not arise from the voluntary act of S. in accepting the substituted liability of a third party in accord and satisfaction of the contract, but is a consequence and a part of the contract itsejf ; the contract being, that, where the price has been paid and the transfers executed by the transferor and delivered, the jobber passing the ticket with the transferee's name is free from further responsibility (e). ■ Accordingly it has been held, both in equity (/) and at law (g), that the jobber, having performed his contract in the manner above described, cannot be made liable to indemnify the seller, although the transferees have not executed or registered the transfers. So if the name given be such as the seller might perhaps have reasonably objected to, yet if objection is not taken within the ten days which by the custom of the Stock Exchange are allowed for inquiry, the jobber is dis- charged at the expiration of that time. Thus in Maxted v. Paine (second action) (7j) B., on the instructions of P- the ultimate buyer, passed as transferee the name of G., a person of no means, who had consented, in consideration of a sum of money paid to him by P., to allow his name to be given. Both A. and X. were ignorant of the arrangement, and no objection was taken to the name within the time limited (a) Brown v. Black, 15 Eq. 363 ; 8 Ch. rity to the London broker to give his name 939 ; Maynard v. Eaton, 9 Ch. 414. as purchaser, if he do not supply the name (6) Holmes v. Symons, 13 Eq. 66 ; but of his customer : Street r. Morgan, 21 see s. 75, infra, as to B. A. 1869 and 1883. L. T. 432, 436. (o) Mckalls V. Merry, 7 Ch. 733 ; L. R. (e) See Coles v. Bristowe, where Coles 7 H. L. 530. had given his broker instructions to com- (d) Coles V. Bristowe, 4 Ch. 3, 11 ; and plete with the jobber direct, 6 Eq. 151 ; see Grissell v. Bristowe, L. R. 4 C. P. (Ex. 4 Ch. 14 ; and Maxted v. Paine (2), L. R. Ch.) 36, 45. The principle it seems ex- 6 Ex. 132, 173. tends to the case of a country broker (/) Coles v. Bristowe, 4 Ch. 3. instructing a London broker to buy shares Qj) Grissell v. Bristowe, L. R. 4 C. P. 36. for him ; his instructions imply an autho- (A) L. R. 4 Ex. 203 ; Ibid. 6 Ex. 132. 138 THE COMPANIES ACT, 1862. Sect. 35. by the usage. Under these circumstances it was held that X. had fulfilled his contract and was relieved from liability. It is conceived that S.'s remedy in this case was by suit in equity against P., as real purchaser and equitable owner of the shares, as in Castellan v. Hobson (i). But if the jobber gives the name of a non-existent person, or of a person who is incompetent to contract, as an infant, lunatic or married woman, or of a person who has not authorized the use of his name, he is not discharged, although the name be accepted. For the jobber has contracted to purchase the shares, and all that the custom of the Stock Exchange allows him to do is to shift this contract to another, to find some one who will perform his contract for him. If he gives the name of a person who from disability can- not perform, or who being able has never agreed to perform the contract, or who does not exist at all, he has not substituted any one for himself, and therefore necessarily remains liable (k). It is immaterial whether the ten days have elapsed or not before objection is taken. That interval is given for inquiry into the responsibility and not into the capacity and willingness of the name given (J). In Maxted v. Paine (first action) (m), therefore, where X. on the name-day passed to A. the name of a person as purchaser who had not agreed, and was not bound, to purchase shares in the company, X. had not by passing such a name relieved himself from liability, although he was quite innocent in the matter, and did not know that any objection could be made to the purchaser, and although objection was not taken within the ten days allowed for that purpose by the rules of the Stock Exchange. And so where X. without fraud handed on to A. the broker of S. the name which X. had received and the transfer was executed and the consideration paid, X. remained liable to indemnify S. upon its subsequently turning out that the name given was that of an infant (n). While S. is thus entitled to indemnity from X., semhle that X. is in turn entitled to indemnity from P. who passed him the name which brought him into trouble (o). In the. case referred to the plaintiffs were P.'s brokers, who had been ordered by the Stock Exchange under their rules to indemnify S., and the defendant was P. This, however, will not be allowed to deprive S. of his right of establishing his claim against X. And, therefore, where S. had commenced an action against X., and X. then filed a bill against S. and P., an injunction to stay S.'s action was dissolved on appeal (p). from broker It is conceived that the broker acts throughout only as agent and does not of ultimate offer to make a contract on his own account (q) : from which it would follow purchaser ; ^j^g^j ^j^g ^jj-g^er can never be liable upon the contract as a purchaser, although he might be liable on the ground of misrepresentation if he have put forward a principal non-existent or under disability. It does not appear that a seller of shares has ever yet in such a case sought to render the broker of the ultimate buyer liable to indemnify him (r), (0 10 Eq. 47. And see Kickalls v. 536 ; 30 L. T. 644 ; 22 W. R. 218 ; Wat- Merry, L. R. 7 H. L. 530, 5+6. son v. Miller, W. N. 1876, 18 ; Heritage v. (/() Nichalls v. Mcrni, 7 Ch. 733 ; L. R. Paine, 2 Ch. D. 594. 7 H. L. 530. (o) Peppercoi-ne v. Clench, 26 L. T. 656. (0 mokalls V. MeiTij, L. R. 7 H. L. 530, (p) Nickalls y. Eaton, 23 L. T. 689. 542. (}) See Coles t. Bristowe, 4 Ch. 3 ; (m) L. R. 4 E.^. 81 ; Ma.vtid v. Morris, Orissell v. Bristowe, L. R. 4 C. P. 36; and 21 L. T. 535. judgment of Mellish, L.J,, in Merry v. (n) mokalls v. Merry, 7 Ch. 733 ; L. R. Mckalls, 7 Ch. 733, 755. 7 H. L. 530 (overruling liennie r. Morris, (r) In Brown v. Black, 15 Eq. 363 ; 13 Eq. 203); Dent v. Nickalls, 29 L. T. 8 Ch. 939; the bill as originally filed was THE COMPANIES ACT, 1862. 139 although it seems that the Stock Exchange will under their rales order a Sect. 36. broker who has passed an improper name to indemnify the vendor (s). It might, perhaps, be gathered from the judgment of Blackburn, J., in Maxted V. Paine (2), u. supra («), and from the judgment of Eomilly,M.E., in jBenme V. Morris («), that an action might in such a case be successful ; but quoere whether in any case in which Nichalls v. Merry (x) would apply any party to the transaction subsequent to X., the original jobber, would be liable to S. For the ground of the decision in Nichalls v. Merry is that the contract with X. remains undisturbed and that there is no contract between S. and any one standing behind X. It would seem to follow that neither on the ground of contract nor of fraud could S. have any claim against B. Allen V. Graves {y) was a case in which S., through A., contracted with X. for the sale to him of shares for the account, and X. contracted with T. that T. should "take in" shares for him for that account. A "taker-in" of shares becomes the purchaser for that account, with a concurrent obligation to deliver back a like number of shares on the ensuing account. Y. did not pass to X. on the name day, as he ought to have done, the name of a trans- feree, but passed an informal memorandum to X., which X. passed to A., and it was arranged between A. and Y. that the delivery of the name should stand over till required by A. On the settling-day S. executed a transfer of the shares, leaving the name of the transferee blank, the transfers were paid for, and A. handed Y. the certificates, but retained the transfer. Sub- sequently Y. handed to A. the name of a transferee, to whom objection was taken. It was held, that there was a contract between S. and Y. which Y. had not fulfilled, and that he was liable to S. ^ If a jobber enter into a contract for the purchase of shares " with registra- Registration tion guaranteed," his contract is not only to find a purchaser who will make guaranteed. payment and accept a transfer, but one who will also register the transfer : and until that has been done the jobber is not discharged (z). It will be observed that by the section the Court is authorized to visit the Costs. applicant with costs, and is further empowered, if it rectifies the register, to order costs and damages to be paid by the company, but that there is no authority to order payment of costs by any person other than the company against whom the motion may be directed. This has been held to be an indication that the section is not applicable to cases of specific performance of contracts for the purchase and sale of shares (a). If an application be brought within the section by shewing that the ap- plicant has a legal title, and it be shewn that the company were in the wrong in siding with the wrong party, then the Court, being unable to make that wrong party pay the costs, will give them against the company (J). But if the application to the Court be made as part of the proceedings in the winding-up, the Court has jurisdiction, under sect. 170 and the 74th rule of the Gen. Order of the 11th of November, 1862, to order the person against whom the application is made to pay costs (c). It does not appear upon what authority Malins, V.C, ordered the respondent shareholder to pay costs in Davies' Case (d). against brokers, but they were purchasing («) Cruse v. Paine, 6 Eq. 641 ; 4 Ch smble as principals through a London 441 ; and see Coles v. Bristowe, 4 Ch. at bvokeT. So in Street V.Morgan, 21 L.T:.i32. p. 13. (s) Fei>peroome v. Clench, 26 L. T. 656. (a) Ward and Henry's Case, 2 Ch. 431, y\ .n b ■ ^ ^"^ "^' ^®°- 442 ; Musgrave and Hart's Case, 5 Eq. 123, W 13 Eq. 203, 209 ; which was, how- 199; E.p. Sargent, 17 Eq. 273, 276: ??/' "7'="°'''^ ■" NicMls v. Merry, 7 Ch. (6) S. p. Sargent, 17 Eq. 273. M 7 ri' l?Q ^- ^^°- ("^ •^''"* "/ Hindustan, China, and Japan, >^^ T p" In T> ... ^- P- ^"*''^''' 5 <^''- 35 ; see further, s 98 (3/).L. E. 5 Q. B. 478. {d) 33 L. T. 834. 140 THE COMPANIES ACT, 1862. Sect. 35. Damages. Solicitor and client costs. Practice — Sei'- vice on official liquidator. Special examiner. Stannaries. In E. p. Shaw (e) the shareholder who was respondent to a summons at chambers, appealed first to the Court, and then to the Appeal Court. In both instances he failed and was ordered to pay the costs both of the applicant and of the company, the Court holding that the section did not apply to the costs of an appeal. Where an allottee of shares obtains as against the company rectification of the register in respect of shares upon which payments hare been made to the company, an order may be made for payment as " damages " of the amount paid upon the shares (/) and interest upon it {g). This is certainly a convenient view, for otherwise, after a motion for rectification has succeeded, it would be necessary to bring an action to recover the money paid. Where the transfer tendered for registration was in consideration of 5s., but there was a special agreement between transferor and transferee of which the company had not notice, the company was liable only for nominal damages (A). Where a person's name had been unjustifiably placed on the register, Malins, V.C., assuming that he had no power to give costs as between solicitor and client, allowed in more than one instance, by way of "damages," the additional costs as between solicitor and client (i). This is beyond the jurisdiction of the Court, and CocTAurn v. Edwards (k) in the Court of Appeal must be taken to have overruled the decisions referred to. The law gives a successful litigant his costs as between party and party, and he cannot be said to sustain damage by not getting them as between solicitor and client (Jc). A judge has no power to order any party to pay a sum by way of penalty beyond the costs Q). Where notice of motion under this section has been served on the company, and before the motion comes on for hearing, a winding-up order is made and an official liquidator appointed, the notice of motion must be served on the official liquidator (m). A special examiner may be appointed for the purpose of taking evidence to be used on a motion under this section (n). In the case of companies subject to the jurisdiction of the Vice-warden of the Stannaries there was an alternative right to apply for rectification 'of the register, either to the Vice-warden or to the High Court (o); a construc- tion of the section which, it is conceived, holds good also with regard to an inspection of the register of members under sect. 32, or of the register of mortgages under sect. 43, sections in which the wording is similar to that here employed. Jurisdiction in the winding-up was, by sect. 81 of this Act, and further by sect. 28 of the Stannaries Act, 1887, given primarily to the Stannaries Court ; but it is not difficult to find a reason for the difference in that case, for the rectification of the register is a matter requiring no local knowledge, and is a remedy for a wrong of a peculiar kind, and for whose redress the Legis- lature has wished to ojien as many doors as possible ; whereas in the winding- up questions may arise in which local knowledge may be of much value, and («) 2 Q. B. Div. 463. (/) Sailwai/ Time Tahks Co., E. p. Sandys, 42 Ch. n. 98, 108; citing Addle- stone Linoleum Co., 37 Ch. Div. 191, 205; Alnuida and Tirito Co., 38 Ch. Div. 415, 4'24. (<;) ih'tr. Coal Ass., E. p. Waimcright, W. N. 1890, 3. (A) Skinner i-. City of London Marine Corp., 14 Q. B. Div. 882. (i) Pontife.v's Case, New Quebrada Co., 15 W. R. 955 ; 36 L. J. (Ch.) 903 ; Wood's Case, 15 Eq. 236 ; Anderson's Case, 17 Ch. D. 373. (i) 18 Ch. Div. 449, 459. (?) Willmott V. Barber, 17 Ch. Div. 772. (m) E.p. Trenohard, 19 W. R. 96. (n) Cashar Co., 15 L. T. 274. (o) Penhale and Lomax Consolidated Silver Lead Mining Co., 2 Ch. 398. THE COMPANIES ACT, 1862. 141 whioli may render it very proper that the case should be placed under the Sect. 36. jurisdiction of the Stannaries Court (p). See now Comp. (W. Up.) Act, 1890. The register should be rectified in the case of the removal of a name by Form of iccti- striking through the name with pen and ink, adding, " By order of the Court ficatio"' of , dated, &o., this name has been erased " (j). Where the name of " William Webb " without any further description ap- peared on the register, and was put on the list of contributories, and a person of that name established that he was not a shareholder, the Court made a declaration that he was not a shareholder, and struck his name out of the list of contributories, but directed that the register should be left untouched (r). 36. Whenever any order has been made rectifying the register, Notice to in the case of a company hereby required to send a list of its rectification of members to the registrar, the Court shall, by its order, direct that register. due notice of such rectification be given to the registrar. 37. The register of members shall be prima^aeie evidence of any Register to matters by tbis Act directed or autborized to be inserted therein (a). (a) s. 25. The register is only prima fade evidence. Even in proceedings, therefore^ in which the register cannot be rectified, e.g., proceedings before a magistrate under sect. 27 for penalties, evidence may be received to prove entries in the register to be untrue (s). Liability of Members (a). 38. In tbe event of a company formed under this Act (/3) being Liability of wound up, every present and past member (y) of such company ^asrmomlfers shall be liable to contribute to the assets of the company to anof™mrany. amount sufficient for payment of the debts and liabilities of the company, and the costs, charges, and expenses of the winding-up, and for the payment of such sums as may be required for the ad- justment of the rigbts of the contributories amongst themselves (8), with the qualifications following; (that is to say,) (1.) No past member shall be liable to contribute to the assets of the company if he has ceased to be a member for a period of one year or upwards prior to the commencement of the winding-up (e) : (2.) No past member shall be liable to contribute in respect of any debt or liability of the company 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 company unless it appears to the Court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of this Act : (.P) Penhale and Zomax Consolidated (r) Southampton Steamboat Co., E p Silver Lead Mining Co., 2 Ch. 398. Webb, 8 L. T. 478. (g) Iran Ship Building Co., 34 Beav. (s) Briton Medical Association, 39 Cii. 597. D. 61. * 142 THE COMPANIES ACT, 1862. Sect. 38. (4.) In the case of a company limited by shares, no cgntribution shall be required from any member exceeding (Z) the amount, if any, unpaid (jj) on the shares in respect of which he is liable as a present or past member : (5.) In the case of a company limited by guarantee, no con- tribution shall be required from any member exceed- ing (?) the amount of the undertaking entered into on his behalf by the memorandum of association (6) : (6.) Nothing in this Act contained shall invalidate any pro- vision contained in any policy of insurance or other contract whereby the liability of individual members upon any such policy or contract is restricted, or whereby the funds^of the company are alone made liable in respect of such policy or contract (<) : (7.) No sum due to any member of a company, in his character of a member, by way of dividends, profits, or otherwise, shall be deemed to be a debt of the company, payable to such member in a case of competition between himself and any other creditor not being a member of the com- pany ; but any such sum may be taken into account, for the purposes of the final adjustment of the rights of the contributor! es amongst themselves (k). (a) As to directors with unlimited 16 Ch. Div. 247 ; and as to the limit of liability, v, Comp. Act, 1867, ». 5. liability being implied as against a person (j3) Or an existing company registered — e.g., a solicitor — standing in a fiduciary compulsorily or Toluntarily under this Act. relation to the company, Sadler's Case Hamsay's Case, 3 Ch. Div. 388. (Alb. Arb.), 16 Sol. J. 571. (7) s. 23. (k) See ante, p. 122 ; post, s. 101, n. and (5) s. 109. Table A. (73), n. Where the articles re- (e) ss. 84, 130. quired the directors to be members, it was (f ) Notwithstanding these words, a held that their unpaid fees as directors contract contained in the articles extend- were debts due to them in the character ing the member's liability beyond the of members and were to be postponed : liability under the memorandum for satis- E. p. Cannon, 30 Ch. D. 629. This decision faction of particular debts maybe enforced : has, it is believed, been generally followed Maxwell's Case, 20 Eq. 585 ; McKeican's in the Judges' Chambers, but quoere whether Case, 6 Ch. Div. 447 ; Lion Insurance Co. v. it was well decided. At any rate, payment Tucker, 12 Q. B. Div. 176. to a person for special skill and attention is (r;) See note to s. 26, supra, p. 84, as to none the less a provable debt because the returned capital, &c. person is a director, and under the articles (fl) ss. 9, 90, 134. a director must be a member (t). (i) This enables the liability of members If a member could prove for damages in of an unlimited company to be limited by respect of the issue to him of shares not special contract. As to such a limitation fully paid when he contracted to take fully see Lethbridge v. Adams, 13 Eq. 547 ; Acci- paid, such a proof would fall within the dental Death Insurance Co., 7 Ch. D. 568 ; words " or otherwise." Addlestone Lino- Great Britain Mutual Life Assurance Sac., leum Co., 37 Ch. D. 191, 198. New liabilities. This section imposes new liabilities on the members : the winding-up order entirely alters the position of the parties and makes the shareholders con- tributories, and contributories in a totally different way in some respects (0 Dale and Mant, 43 Ch. D. 255. THE COMPANIES ACT, 1862. 143 as regards the debts and liabilities of the concern from what they were Sect. 38. before («). By sect. 74, a " contributory " is a " person liable to contribute to the Who is a con- assets of a company under this Act, in the event of the same being wound ti'i''"*'"')'- up." The persons so liable are deiined by sect. 38, and it is to the descrip- tion in that section that the 74th section must be taken to refer (x). The " contributories " therefore are " every present and past member of such company " subject to the qualifications specified in this section. The question, therefore, whether or not a person is a " contributory " resolves itself to a great extent into the question whether or not he is a present or past member, and in this form will be found discussed under the several sections of the Act to which the particular circumstances of the case may be referred : as e.g., whether or not he has agreed to become a member under sect. 23 ; whether or not a transfer in which he is named as transferor or transferee is valid and effectual under sect. 22 ; whether or not he is entitled to the removal of his name by rectification of the register under sect. 35 ; how his liability is affected by his bankruptcy under sect. 75. There may be one or more than one class of contributories, according Classes of con- as under the constitution of the company the members are not, or are as tnbutones. between themselves, liable in a different degree or a different order to the payment of debts. Thus in an unlimited life insurance company founded upon the mutual principle and having a capital divided into shares, where the articles pro- vided for two classes of members, namely, shareholders, so long as there should be any shareholders, and assurance members, defined to mean policy- holders with participation in profits and registered as members of the company, and when the shareholders should be paid off under a scheme in the articles, then the company was to consist of assurance members only, it was held that assurance members were contributories (y), but that they could not be called upon to contribute until the shareholders had been exhausted (z). So, if in the articles of association and in the policies issued by a mutual society there be proper provisions excluding liability, the policy-holders, though members, may be under no liability at all (a), and if in such a company there were shareholders or other members who were liable there would be a class of members liable as contributories and another class not so liable. In the Norwich Provident Insurance Society (b) a life insurance company established fire insurance business as a separate department, and issued separate capital to provide for it. If this company had gone into liquidation "with a life capital and a fire capital devoted by the articles to separate objects, and restricted by the company's policies to liability in respect of losses in the several departments, it is conceived that there would have been two classes of contributories, viz. life contributories and fire contributories, and that not as between present members only but also in the matter of the liability of the B. contributories or past members those two classes must (u) Burgess' Case, 15 Ch. D. 507, 511, 1 Ch. 547, 551 ; see further as to con- referring to Webb V. Whiffin, L. E. 5 H. L. tributories, ss. 74-78. 711 ; and see WMtehouse ^ Co., 9 Ch. D. (»/) Winstom's Case, 12 Ch. D. 239. 595, 599 ; Natiotial Funds Assurance Co., («) Albion Life Assurance Soc, 15 Ch. D, 10 Ch. D. 118, 125 ; West of England Bk., 79 ; 16 Ch. Div. 83. E. p. Hatcher, 12 Ch. D. 284 ; Gill's Case, (a) Great Britain Life Assurance Soc, 12 Ch. D. 755. 16 Ch. Div. 247. («) Anglesea Colliery Co., 1 Ch. 555, (6) 8 Ch. Div. 334; 11 Ch. D. 386; 13 559 ;. National Savings Bank Association, Ch. Div. 693. 144 THE COMPANIES ACT, 1862. Forfeited shares. Sect. 38. have been worked out separately. What took place, however, was this ; the company were advised (erroneously as it turned out (c) ) that the creation of the fire capital was ultra vires, and a new company was formed which took over the fire business. The holders of the fire shares accepted in exchange for them shares in the new company, and their flre shares in the old company were cancelled. It was held in Bath's Case (d) that under these circumstances the holder of fire shares in the old company ceased, upon the cancellation, to be a member of the old company in respect of them, with the result (e) that as between the old company on the one hand and the flre shareholder on the other the company was liable to indemnify him in respect of his shares. The question then arose whether after present fire share- holders in the old company had been exhausted past fire shareholders were to be called upon before the life shareholders were called upon in respect of fire debts. Bacon, V.O., held that they ought (/). The Appeal Court reversed his decision on the ground that the liability to indemnify the past fire shareholder was a general liability of the old company not limited to any particular funds, and that, therefore, every existing shareholder must be called upon before any past fire shareholder could be made to con- tribute (g). It may be convenient to add here the result of the decisions in respect of forfeiture of shares, and of compromises made by the liquidators with individual contributories. The liability of a past member is entirely created by this Act, and is the same whether the shares have been parted with by transfer or have been extinguished by forfeiture. And therefore if A., being a member of a company, forfeit his shares within a year before the winding-up (h), or if A. transfer to B. within the year, and B. forfeit the shares (i), A. is liable as a contributory as a past member. A clause in the articles of the company that " the forfeiture of any share shall involve the extinction at the time of the forfeiture of all interest in, and all claims and demands against the company in respect of the share, and cell other rights incident to the share," is not inconsistent with, and certainly cannot bar the effect of the statute in respect of the past member's liability (k). The fourth placitum of this section does not relieve the former holder of forfeited shares from his liability. He is liable to pay " the amount, if any, unpaid," and forfeiture is not payment (I). The former owner of forfeited shares cannot be placed on the list of con- tributories as a present member (?») ; nor, even where the articles provide that, notwithstanding forfeiture, the member shall " be liable to pay to the company all calls owing on such shares at the time of such forfeiture," can he be placed on the list of present members as a contributory in respect of such calls (n). In the absence of such a provision, semble, he could not after forfeiture be sued at law for past calls (o). A compromise with a present member made by the liquidators under sect. 160, with the sanction of the Court, whether made with a reservation Calls due at time of for- feiture. compromises. (c) See 8 Ch. Div. 334, 341. Id) 8 Cli. Div. 334. («) See 13 Ch. Div. 695. (/) Bath's Case, 11 Ch. D. 386. Ig) IJcslicth's Case, 13 Ch. Div. 693. (A) Crcyke's Case, 5 Ch. 63 ; Marshall v. Qlamorgan Co., 7 Eq. 129. (i) Sridger's and Neill's Cases, 4 Ch. 266. (*) Creyke's Case, 5 Ch. 63. (0 Bridger's and Neill's Cases, 4 Ch. 266. (m) Knight's Case, 2 Ch. 321 ; Bath's Case, 8 Ch. Div. 334; and see 'Webster's Case, 11 W. E. 226 ; 7 L. T. 618 : 32 L. J. (Ch.) 135. (n) Needham's Case, 4 Eq. 135. (o) Stocken's Case, 3 Ch. 412, 415. THE COMPANIES ACT, 1862. 145 of rights as against any other contributories (p), or without any such reser- Sect. 38. vation (q), does not operate to discharge the past member from liability as a contributory in respect of the shares in regard to which the compromise is made. But neither does such a compromise operate to release the present member from liability to indemnify the past member for what the latter may be called upon to pay (r). And the same rule as to indemnity holds good as between a past member of earlier date and a past member of later date (s). Thus, if within the year X. transfer to T. and T. to Z. ; and Z. failing in his payment of calls as present member, X. and Y. are made contributories as past members, X. may obtain indemnity from Y. for anything which X. has been compelled to pay (s). Present and past members do not stand to each other in the relation of principal and surety (t); their relation is one of primary and secondary liability (u). If a person have become a shareholder by virtue of a contract, which was Cancellation of ah initio voidable by him, and which he has avoided before the winding-up, allotment. and the allotment of shares has been thereupon cancelled, he is not liable as a past member (x). For in such a case the voidable contract being avoided it is as if he had never been a member at all («/). But this does not apply to a cancellation or forfeiture of a member's shares under a power in the articles. In that case "no cancellation can affect a past liability " (z). For the person is one who has legally been a member and has ceased to be one. He is " a past member." And so where a question whether certain shares were legally created or not was compromised by cancellation of the shares, the compromise and cancellation were upheld, but inasmuch as the Court found the shares to have been legally created, the former holder was held liable as a past member (a). In these cases of forfeiture or cancellation there is or may be no person liable as a present member for the shares, but this makes no difference in the nature of the past member's liability. In Bath's Case (a) a curious attempt was made to make out that the member whose shares had been for- feited was liable as an A. contributory for debts incurred down to the date of the ferfeiture. This would appear to be wholly inconsistent with the section. A past member of an unregistered company, which, subsequent to his oeas- Unregistered ing to be a member, is registered, is not a contributory in the winding-up company. of the registered company, but remains liable in respect of the obligations attaching on the common law partnership (J). It is next proposed to consider in detail the questions which more properly a. and B. con- fall under this section, respecting, that is, the extent and nature of the tributoiies. liability of the contributories, and the manner and order in which their contributions are to be applied. The list of contributories will consist of two parts: — first, the list of (p) Nemll's Case, 6 Ch. 43. (x) Wright's Case, L. E. 7 Ch. 55 ; and (g) Helbert t. Banner, L. R. 5 H. L. 28 ; v. supra, s. 35. Hudson's Case, 12 Eq. 1. (y) Cf. the cases, supra, p. 122. (r) Roberts v. Crowe, L. R. 7 C. P. 629. («) Marshall v. Glamorgan Iron Co., (s) Kellook \. Snthoven, L. R. 8 Q. B. 7 Eq. 129, 138. 458 ; 9 Q. B. 241 ; Murton v. Bigham, (a) Bath's Case, 8 Ch. Div. 334. W. N. 1873, 226. (6) Lanyon v. Smith, 2 N. R. 118; 3 B. (0 Helbert v. Banner, L. R. 5 H. L. 28 ; & S. 938 ; Harvey v. Clough, 2 N. R, 204 ; Hudson's Case, 12 Eq. 1. and see ss. 194, 195. («) Soberts v. Crowe, L, R. 7 C. P. 629. 146 THE COMPANIES ACT, 1862. Sect. 38. present members, i.e., of those who are members of the company at the com- ■ mencement of the winding-up, commonly called the A. list; secondly, the list of past members who have ceased to be members within a year before the commencement of the winding-up (see sub-section (1) ), commonly called the B. list. Sect. 98. By sect. 98 "as soon as may be after making an order for winding-up the company, the Court shall settle a list of contributories." B. list, when The A. list will therefore be settled as soon as may be, but as respects the settled. -g ]jg^^ ^j^Q ^jjjj,^ placitum leaves the period at which the Court will enter into the inquiry whether the existing members are able to satisfy the debts of the company entirely in the discretion of the Court ; and it is the settled practice of the Court not to settle the B. list until it has become necessary to inquire and it has been shewn that the present members are unable to satisfy the debts (c). Thus, in Needliam's Case (d), Eomilly, M.E., refused to settle the B. list until it was ascertained that the contributions of past members would be required. What evidence Before a past member can be made liable two things are requisite. First, required. there must be debts due at the winding-up which were contracted anterior to the time of his ceasing to be a member (for in respect of debts contracted after he ceased to be a member he is not in any respect liable (e) ) ; secondly, it must appear to the Court that the existing members are unable to satisfy the contributions required to be made by them in pursuance of the Act (/). Sect. 102. The words "it appears" in sub-sect. 3 must be taken in connection with the language of the 102nd section, which distinctly refers to the Court acting when certain things are probable, and therefore the settlement of the B. Ust, and the making a call upon the B. contributories, is a matter which is left to some extent in the discretion of the Court, and all that the Court has to be satisfied of before calling upon the B. contributories is that there is an im- probability of assets being otherwise obtained in such a manner, and within such a reasonable time, as to be sufficient for the payment of the debts of the creditors of the company. It must appear satisfactorily to the Court that the existing members are not able to contribute sufficient for the purpose ; but the Court is not bound to allow delay for an indefinite time in .getting in the assets. The creditors are by the statute precluded from pro- secuting their ordinary remedies, and ought to be paid within a reasonable time after the winding-up. And if, after the B. list has been settled and a call made, it should ultimately appear that the contributions of the A. con- tributories are sufficient to satisfy the debts, the past members will be ex- onerated, and will be entitled to the return of any money they have paid (g). Again, if it be ascertained that the calls which can be enforced and realized against the members on the A. list will not satisfy the liabilities of the com- pany, and there be debts in respect of which the B. contributories are liable, the B. list will be settled, and the name of each past member placed thereon, without stopping to consider in every case whether the present holder of the shares in respect of which the past holder is put on the list will ultimately pay the amount, if any, unpaid, and so leave the past holder after all liable to contribute nothing. (c) See per Selwyn, L.J., in Wright's (/) sub-s. (3). Vase, 12 Eq. 335, n., 345, n. ; McEwen's \g) HeTbert v. Banner, L. R. 5 H. L. 28 ; Case, 6 Ch. 582, 586 ; although cmtra, see also Bamed's Banking Co., 86 L. J. (Ch.j Andrews' Case, 3 Ch. 161. 215 ; Contract Corporation, 2 Ch. 95. and (d) 4 Eq. 135. ». 102. (c) sub-s. (2). THE COMPANIES ACT, 1862. 147 For putting a man's name on the list does not conclusively determine that Sect. 38. he will ultimately have something to contribute (/;)• It is true that, in settling the list, stricter evidence was required by Eomilly, M.E., in Weston's Case (i). His Lordship there said : " Before I can place a past member on the list I must have evidence, in each individual case, that . . . the person to whom he transferred his shares has not paid up the full amount of the shares." But there is an obvious distinction between a past member whose shares are, and one whose shares may here- after be, paid up. And in any case the divergence between Andrews' Case and Weston's Case is not, perhaps, greater than this, that while Andrews' Case would throw upon the shareholder the onus of proving that his name ought not to be put on the list (A), Weston's Case throws upon the liquidator the onus of shewing that it ought to be put on. The evidence upon which the Court will be satisfied that the B. con- tributories ought to be resorted to need not enter into minute details to shew that such a course is necessary. The liquidators are the officers of the Court, and must be presumed to do their duty, and the Court will, therefore, be satisfied if they state reasonable grounds for their opinion Q). B. contributories, although not liable for debts contracted after they ceased Extent of to be members, are of course liable in respect of debts contracted before they liability. became members (m). If X. have transferred to T. and Y. to Z., both transfers having been made Successive within a year before the winding-up, on the settling of the B. list both X. and transferors of y. will be placed on it at the same time (m) : and although as between them- ^^""^ shares, selves X. cannot be called upon to contribute anything until Y. has been exhausted, yet it seems there is nothing to prevent the liquidator from calling upon both X. and Y. simultaneously, or calling upon X. and passing over Y. (o). In either case, however, X. has his remedy over against Y., and can call upon him for indemnity (p). Where W. transferred to X., an infant, on the Uth of January, 1865 ; X. Infant trans- transferred to Y., an infant, on the 16th of August, 1865; Y. transferred to ^"'^^■ Z., a person of full age, on the 5th of December, 1865 ; and the winding-up commenced on the 20th of March, 1866 ; W. was held not to be liable as a B. contributory, for after the company had once obtained an adult share- holder the intermediate transfers could not be avoided, and W. de facto ceased to be a shareholder when he made the transfer to X. (q). But although, as appears above, in the case of successive transferors of Successive the same shares, each transferor has a right to be indemnified by his trans- transferors of feree, and if called upon to contribute may in turn call upon his transferee '*^'''"'™* to indemnify him, yet no transferor has any equity against the holder of ^ "^^' other shares. If, therefore, W. and X. being holders of different shares have, within a year before the winding-up, transferred them to Y. and Z. respectively, W.'s transfer being earlier in date than X.'s, W. cannot require that X.'s liability shall be exhausted before he, W., is called upon. In other words, there is no rule that one class of B. contributories must be exhausted before going back to an earlier class of B. contributories (r). (A) Andrews' Case, i Eq. 458 ; 3 Ch. 161. Case, 26 L. T. 936 ; W. N. 1872 126 Q)Babertj. Banner, L. R. 5 H. L. 28. W. N. 1873, 226 ; et v. supra, pp. Ui, 145 (m) Selbert s Case, 6 Kq. 509. (q) Gooch's Case, 14 Eq. 454 ; 8 Ch! 266 v^^"^ f^^ S^"' ^® ^- ^- ^36; 20 As to infant transferees, see ™U, p. 42 ; ^- 1^^ '7,; ^; ^^'^^' 12^- W ^"^"^'^ ^«»^. 7 Ch. 200f S C 8 Ch. (o) See Kellock v. Enthmen, L. R. 9 800. Q. B. 241, 247. See, however, Burnby's l2 148 THE COMPANIES ACT, 1862. Sect. 38. Thus far two questions have been considered ; first, who are the persons _—- ~ liable to be called upon to contribute in the winding-up of a company; and contributions Secondly, at what time and under what circumstances will the B. list of con- of B. contri- tributories be settled, and the B. contributories be called upon to contribute. butorics. Assuming, then, that the company with which we have to deal is a company limited by shares (s), that the contributions of the existing members have proved insufBcient to satisfy the debts and liabilities and the costs of the winding-up, and that it has become necessary to resort to the B. con- tributories, the points which remain to be considered may conveniently be discussed under the following heads : Questions to J. What is the measure of the liability of the B. contributories, and what e iscusse . ^j^^ quantum of contribution that can be demanded from them. 2. At what time does this liability attach upon the ex-members, and can such liability, when once attached, be diminished or affected by any subsequent acts of the persons liable. 3. How are the contributions of the B. contributories to be applied. 4. What is the position and what the liability of the B. contributories in respect of the costs, charges, and expenses of the winding-up. Of the questions thus stated the third, and the third only, was definitively concluded by the decision in the House of Lords in the case of Webb v. Wkiffin in the matter of the Accidental and Marine Insurance Corporation (t). But the opinions there expressed by some of their Lordships bear materially upon other points here proposed to be considered. \ *f''i!r'^ °*f ^' ■^ ^ ^^^ measure of the liability of the B. contributories. B ^contribu- " -"■* ^^^^ ^® observed that the effect of this section is, as respects the B. tories. contributories, to create two measures of liability. As regards the A. contributories, the measure of liability to contribute to the payment of the debts is one only, viz., the full amount unpaid on their shares. But, as regards the B. contributories, the measure is twofold ; the first limit being the amount left unpaid on their shares by the corresponding A. contributories respectively ; the second being the amount of the debts or liabilities contracted before the time that each B. contributory ceased to be a member, and remaining unpaid or unsatisfied. This will be seen to be the effect of the 2nd and 4th sub-sections. Further, it is clear that no B. contributory can be called upon at all until every individual A. contributory has been exhausted (v). The A. con- tributories are primarily liable for everything, and it is only upon the failure of the A. contributories to fulfil their measure of liability, leaving the debts and costs unsatisfied, that the liability of the B. contributories arises at all. This will be seen to be the effect of the 3rd sub-section. If the above be accepted as a fair statement of the effect of these three sub- sections, the only point which under this head appears to present any difficulty is as to the meaning of the words " remaining unpaid." " Remaining unpaid " at what time ? The answer is twofold : — (i.) Remaining unpaid after the assets of the company, including the contributions of the A. contributories, have been applied pari passu towards the payment of all the debts of the company irrespective of the time at which such debts were contracted ; (s) It is in such companies only that the (t) L. E. 5 H. L. 711. following questions have been the subject («) This is subject of course to Helbert of decision. But it is conceived that the v. Banner, L. R. 5 H. L. 28, and the same principles are, mutatis mutandis, observations supra, p. 146. applicable to other companies. THE COMPANIES ACT, 1862. 149 (ii.) Kemaining unpaid at the time the contribution is called for, or is Sect. 38. payable. It will be seen that (i.) is established by Morris' Case (x), a case which was upon this point confirmed by the judgments delivered in Welb v. Whiffln (y) ; and, on rehearing after the decision in Webb t. Whiffin (y), was afSrmed by the full Court of Appeal (z). The decision in Morris' Case (a) was that in estimating the debts for which the B. contributories are liable the assets of the company, including the contributions of the A. contributories, are to be treated as having been applied in payment pari passu of all the debts. It is only in respect of so much of the debts, in respect of which he is liable having regard to sub-sect. 2, as remain unpaid after such application of the assets, that a B. contributory is liable to contribute. The following, bearing upon this point, may be quoted from the judgment of Lord Westbury in Webb v. Whiffin (b) : " The direction (of the section) is this : You will apply all that you can get from the existing members in payment of the existing debts, no matter of what date. If, after you have done that, there remain debts unsatisfied, so that you have to resort to the members who have passed away from the company within a year, then you will be compelled to classify the residuum of the debts so remaining, and ascertain what part of that residuum is to be attributed to past debts ; that is, to debts which pre-existed the transfer made by past members, and what portion is to be attributed to the new debts which have arisen subseqiiently to the date of the last transfer. When you have ascertained the proportion which is attributable to debts which existed when the transfers were made, then, if there have been several transfers within the year, you will be compelled of necessity to subdivide that portion of the residuum into several portions, according as you find that transfers have been made within the past year." The inference is obvious that his Lordship's meaning was that the residuum, so determined is in each case the measure of the past member's Liability. (ii.) The second head of the answer leads to the discussion of that which was given above as the second point for consideration, viz. : 2. At what time does the liability to contribute attach upon the past 2. Whether members, and can such liability, when once attached, be diminished or liability once affected by any subsequent acts of the parties liable. attached can In Brett's Case (c) a winding-up order having been made in July, 1866, ^y sXeiiuent and B.'s name placed on the B. list of contributories, he, in October, 1870, acts of the anticipating a call on the B. list, bought up and caused to be released to the P="^'y I'^^'l''- company all the debts which were due by the company when he ceased to be a shareholder, and which remained due at the winding-up. It was held that, the debts in respect of which alone he could have been called upon to contribute having been thus extinguished, no call could be made upon B., although the money raiseable from the A. list would be insufficient to pay the debts. That is to say, if the debts, or any of them, in respect of which a B. con- tributory might at the date of the winding-up be rendered liable, cease to exist before he is actually called upon to contribute in respect of them (d), W 7 ^''•200. (d) Marsh's Case, 13 Eq. 388, goes even W ^- K- 5 H. L. 711. further than this, for in that case the y< S, "'^^^ ^'^ *«^" ™'<^« before the debts were (a) 7 Ch. 200 ; 8 Ch. 200. bought up. See, however, Brett's Case, (6) L. R. 5 H. L. 728. 8 Ch, at p. 810. (0) 6 Ch. 800 ; S. C. 8 Ch. 800. 150 THE COMPANIES ACT, 1862. Sect. 38. his liability is to that extent proportionally reduced, or, in case of a total extinction of such debts, is released altogether. In the first edition of this work, written after the decision in Webb. v. Whiffin (e), but before the re-hearing of Breti^s Case and Moms' Case (/), the writer, thinking that the decision on the first hearing of those cases (jr) could not stand with Webb t. Whiffin (e), called attention to the fact that aU the three judges who decided those cases on the first hearing had disapproved of the principle which was in Webb v. Whiffin (e) decided to be the true one. For it will be seen that the judgment of Lord Hatherley, in which the Lords Justices concurred, proceeded Qi) upon a disapproval of that decision of Lord Justice Giffard (i), which was, in Webb v. Whiffin (e), aflBrmed. His Lordship prefaces his judgment with the statement that " the observa- tions made by the Lord Justice in his judgment, and the reasoning on which he relied, would be such as certainly to render [the decision which was then given in Brett's Case^ inconsistent with that of Lord Justice Giffard." And, again, from a remark which dropped from the Lords Justices during the first argument of Morris' Case {k), it will be seen that their Lordships thought that the Lord Justice Gififard's decision was opposed in principle to that which they had decided in Brett's Case (J). However, in Webb v. Whiffin (e) Lord Hatherley, while adhering to the opinion which he had expressed in Bretfs Case (J), concurred in the judgment of the House ; and upon the re-hearing of Bretts Case and Morris' Case (f) the Lords Justices found that there was nothing in Webb v. Whiffin (e) to affect their previous decision. The following may be quoted from Lord Hatherley's judgment in Webb v. Whiffin as being that which, notwithstanding the decision then arrived at by the House, was in his Lordship's opinion the true principle in the circum- stances of Brett's Case, and which was upon the re-hearing of that case (/), afBrmed as the true principle by the full Court of Appeal : — " Tou have only to consider the debts that existed at the time of their being members, and if those debts are paid then there is no liability upon them whatever, except as to any possible question that may arise as to the costs. And if they guarantee or secure the company against the debts owing when they ceased to be members by purchase or otherwise, then they remove out of the way the whole matter (subject to the question of costs) in respect of which they have at all to contribute " (m). The result of the foregoing decisions will be seen to be this, that in arriving at the amount of the debts by which the liability of a B. contributory is to be limited, there are to be taken into account not only payments made in respect of those debts by way of dividend in the winding-up, but also payments in whatever manner made by any one, whether a stranger to the liquidation or not, whereby those debts or any parts of them are dis- charged. It is with great diffidence, after the affirmance of Brett's Case on the re- hearing, that the writer ventures again to submit arguments addressed to the correctness of that decision. It is, however, submitted that there is in principle a distinction between the two classes of payments above mentioned, the one class internal, made in the course of the collection and distribution among the persons entitled of the assets in respect of which both creditors (e) L. R. 5 H. L. 711. (i) 5 Ch. 428. (/) 8 Ch. 800. (k) 7 Ch. 200, 203. (g) 6 Ch. 800 ; 7 Ch. 200. (0 6 Ch. 800. (A) 6 Ch. 800, 803. (m) L. R. 5 H. L. 720. THE COMPANIES ACT, 1862, 151 and contributories have certain rights and liabilities defined by statute : the Sect. 38. other external, wholly outside the common fund, which the statute forms and with which it deals. This distinction, it is submitted, is substantial, but it is one which Brett's Case fails to recognise (m). Is not the right of the creditor a right to the contribution of a certain amount, to be ascertained in a certain way defined by the statute, and to be paid into a common fund, which is then to be distributed among the persons entitled ; and are not the rights of all parties the same as if the whole state of the company and its members were known at the date of the winding-up, and every contributory were then and there called upon to pay that amount which in the course of the working out of the accounts in the winding-up it is ultimately found will fall to his share? The difiBculty which is felt in this respect will be best illustrated by placing in juxtaposition two passages from judgments delivered in the above-mentioned cases : — Lord Justice James, in delivering judgment in Morris' Case (o), said of Brett's Oase (p) : " It was there held that the liabilities of the ex-shareholders, and the rights of the creditors who were creditors at the time when they ceased to be shareholders, concerned only those two classes ; and that there was no right or equity whatever, either in the company, the existing share- holders, or the subsequent creditors, to interfere in any arrangement they might make between themselves for the satisfaction or release of those liabilities." The other passage referred to is found in the judgment of Lord Cairns in Wehh V. Whiffin (j). His Lordship there said : " The appellants proceed upon the assumption that they are entitled to establish a direct relation of creditor and debtor between themselves and certain members of the company. Now I understand the whole scheme of the Act of 1862 to be entirely at variance with any theory of that kind. As I understand that Act the relation of creditor and debtor which is established by the Act is established only with regard to that which is the common fund or capital of the company. It was always the habit in ordinary partnerships, and it was the habit in previous Acts, or in almost all previous Acts of Parliament, to constitute more or less of a direct relation between the creditor and the debtor, between the creditor and the particular individual shareholder in the company. . . . But by the Act of 1862 that state of things is entirely swept away. A capital is created, sometimes limited, sometimes without a limit ; but that capital is to be made good in the shape of a common fund, and that common fund it is which is to be the source of the payment of every creditor of the company. And although it is quite true that members and ex-members of the company are placed by the Act under liability, that liability is a liability, not to make payments to creditors, but it is a habihty to contribute to and make good what should be the proper amount of the common fund. Then having got into that common fund every sum which ought to be contributed to it by every person whomsoever, the Legislature takes possession of that common fund, and proceeds to distribute it amongst the creditors of the company " (r). If, then, the Uabihty to contribute is a liability not to the creditor, but to the company, a habihty with which the creditor has no concern whatever, (n) See 8 Ch. pp. 810, 811, whore Sel- {p) 6 Ch. 800. borne, L.C., seems to infer from the fact (g) L. E. 5 H. L. 711, 734. that account is to be taken of the first (r) See also the same judgment, passim, class, that account ought also to be taken and the judgment of Lord Cairns in Seese of the second. Siver Silver Mining Co., Smith's Case, 2 Ch. (o) 7 Ch. 200, 204. 604, 616. 152 THE COMPANIES ACT, 1862. Sect, 38. except through the medium of the company ; and assuming (s) that it is a liability which accrues at the date of the commencement of the winding- up, it is not easy to see how any subsequent arrangement between the con- tributory and the creditor can avail to effect a liability to contribute to the assets of the company which has previously attached upon the contributory- "When once upon the list of contributories upon the ground of the existence of unsatisfied debts and liabilities which were contracted while he was a member, I confess that I am unable to see how any dealing with those debts and liabilities, even to the extent of extinguishing them, can discharge a liability to contribute to the assets of the company which had already attached upon him " (t). Upon this point Lord Cairns added, in Wehb v. Whiffin, in commenting upon Brett's Case : " The other matter to which I think sufilcient attention was not paid (in Brett's Case) was the question whether the debts in respect of which contributions could be called for from ex-members are not what I have called 'old debts' subsisting at the date of the winding-up, and whether anything done with regard to those debts after the date of the winding-up could affect or diminish the liability which had once accrued upon the ex-members " (■«). Moreover, as regards that which was said in Brett's Case (k) that to swell the amount of indebtedness by fictitiously treating as unpaid debts, or any part of debts which had been previously released or extinguished would be a violation both of the letter and the spirit of the second sub-section, and that, in case of debts voluntarily released by a creditor or paid off by a stranger, a call in respect of such debts would be unjustifiable, it is sub- mitted that there is a hiatus in the reasoning. If the B. creditor have not come upon the common fund at all for dividends in the winding-up ; if he have been paid off before the payment of a dividend ; perhaps no one would be prejudiced by, or at any rate could complain of, his being paid off. But this is not the question {y). The B. creditor takes dividends on his debt, and in so doing diminishes the common fund, and then, making an arrange- ment with the B. contributory behind the backs of the other parties, removes from the sphere of the liquidation that balance of his debt which, if left un- discharged, would have benefited the rest of the creditors by bringing into the common fund a sum which would then have been divisible among others as well as himself. He first takes the benefit of the common fund, and then acts to its prejudice. This surely is not consistent with " reason, justice, and equity." Moreover the consequences of the decision appear to be serious. For although, as was pointed out by Lord Hatherley in Brett's Case (z), the B. contributories might in fact, by buying up the whole debt, have paid more than they were obliged to pay (for they could only have been called upon to contribute to the assets of the company to the extent of so much of that debt as remained unpaid by the A. contributories), yet it seems clear that the joint effect of Brett's Case, Morris' Case, and Wehb v. Whiffin is to enable the B. contributories to secure to the B. creditors the payment of their debts in full without increasing their own payments beyond those which they might have been called upon to make towards the assets of the company. For suppose that, when the A. contributories have been exhausted, divi- (s) See infra, p. 153. (x) 8 Ch. 800, 809, 811. (0 Fer Lord Chelmsford in Webb r. (i/) Dividends had been paid on the W/iiffin, h. E, 5 H. L. 711, 725. debts in Bretfs Case; see 8 Ch, 802 (m) L. R. 5 H. L. 739. (s) 6 Ch. 800, 806. THE COMPANIES ACT, 1862. 153 dends have been paid pari passu to all the creditors to the amount of 15s. in Sect. 38. the pound, the B. contributories are then liable to the extent of 5s. in the pound on the debts of the B. creditors. What is there, then, to prevent the B. contributories, before a call is made upon them (for according to Brett's Case it is not until the call is made, or even, as would appear from Marsh's Case (a), until the call is actually paid, that the position of the parties is fixed), from paying to the B. creditors the remaining 5s. in the pound on their debts, and thus standing released from all liability to contribute to the assets of the company ? And this is not all. The benefit would not in practice be left so one-sided. Apart from arrangement and collusion, the 5s. in the pound would go to the common fund, and the B. creditors might get perhaps Is. in the pound out of it. The B. contributories offer them, say, 2s. in the pound for an immediate release of their debt to the company. This, of course, is accepted. The B. contributories get off on payment of 2s. instead of 5s. in the pound, the B. creditors receive double what the statute would have given them, and the only sufferers are the A. creditors who have_been allowed no voice in the matter. The result, it is submitted, is to put a premium upon collusion between the B. contributories and B. creditors, to enable them to evade by a side-wind that which Webb v. Whiffin decides to be the right destination of the B. contributions, and to authorize in fact that which may be termed a fraudu- lent preference on the part of the B. contributories in favour of the B. creditors. Upon the question of the date at which the liability of the B. contributory ought to be considered to attach, one suggestion of an analogy most forcibly presents itself. The principle upon which Gales v. Tarquand (6) was determined may be said to be this : a man who is de facto a shareholder at the date of the wind- ing-up is liable as a contributory. The date of the winding-up is the date with respect to which his liability or non-liability must be determined. Why should not the same principle be applicable to a past as to a present member? Why should not the date of the winding-up be the date with respect to which the liability of the ex-member, and the debts in respect of which he is liable to be called upon for contribution, should be determined ? And the rule, that it is only in respect of the residuum of the debts after the A. contributions have been applied that the B. contributories are liable, does not seem on principle antagonistic to this, if it be considered that the case is as if the position of all the parties were ascertained immedi- ately upon the commencement of the winding-up. Suppose it could then be known what dividend the sums realized from the property of the company and the A. contributions would pay, then the liability of the B. contributory would be a liability to pay to the common fund an ascertained sum, which sum, assuming the foregoing reasoning to hold good, ought not to be diminished by any subsequent dealing on his part with a third party, viz., the B. creditor, to whom Lord Cairns' judgments seem to shew he does not stand in the relation of debtor at all. But, whatever weight may be thought to attach to these considerations, the rule in Bretfs Case (c) can no longer be disputed, and it must be taken to be the law, that if, before call made on a B. contributory, or (on the authority of Marsh's Case (d) ) after call made, before it is payable, the (a) 13 Eq. 388. (c) 6 Ch. 800 ; 8 Ch. 800. (6) L. R. 2 H. L. 325. {cT) 13 Eq. 388. 154 THE COMPANIES ACT, 1862-. Sect. 38. debts in respect of which he is liable, or any of them, are in any manner released or discharged in whole or in part, the common fund is to that extent a loser. 3. How are 3. ^jth regard to the third head, viz., the rule of distribution of the B. butions'^to be' Contributions, it is settled by In re Accidental and Marine Assurance Oorpora- appHed, ° ^ Hon (e), affirmed by the House of Lords under the name of Well v, Whiffin (J), that these contributions are not to be divided exclusively among the old creditors in respect of whose debts they are paid, but form part of the general assets of the company for the payment of all the creditors. This decision reversed one part of the decision in Morris' Case (g) on the first hearing, and that part was accordingly altered on the re-hearing (A). The whole of this section deals with the liability of members, not the rights of creditors, and the second sub-section is a rule of contribution, not a direction as to distribution (i). i. The position 4. Tjje provisions of the Act with respect to the payment of the costs, tributorieras" charges, and expenses of the winding-up are contained in sect. 110 as regards the regards a winding-up by the Court ; and in sect. 144 as regards a voluntary costs of wind- winding-Tip. It will be seen that, in the former case, the order of priority ing-up. Qf payment of the costs is, in case of a deficiency in the assets, in the discretion of the Court, while in the latter, the costs are to be paid in priority to all other claims. Upon this point, again quoting from the judgment of Lord Cairns in Well V. Whiffin, his Lordship said : " It has been thought important (in the Act) in the case of voluntary windings-up to make specific provisions and to give specific directions as to matters which were supposed to be so plain and so necessarily consequential upon the general scheme of the Act, that in a winding-up under the order of the Court it was not thought necesspry to give express directions upon these matters of detail," and then, after commenting upon the* provision as to costs in a voluntary winding-up, his Lordship continues : " In the case of a winding-up under the order of the Court there is no such provision, it being, I suppose, presumed that the Court would see that the justice of the case required that in the first instance the costs of winding-up ought to be paid " (k). It is conceived, therefore, that no difference of principle exists with regard to these costs in a voluntary and a compulsory winding-up. It will be observed that the provision of this section is that "every present and past member shall be liable to contribute to the assets of the company to an amount sufficient for payment of the debts and UabiUties of the company, 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 amongst themselves," with the qualification introduced by sub-sect. (2), that " no past member shall be liable to con- tribute in respect of any debt or liability of the company contracted after the time at which he ceased to be a member." Upon this Lord Hatherley said in Brett's Case (Z) : — " "With regard to the costs of the winding-up, a difficulty arises, because the Act speaks of con- tributions being made by past and present members. They are all put in one sentence, in which the Act speaks of the costs of the winding-up, and («) 5 Ch. 428. Whiffin, L. E. 5 H. L. at pp. 727, 729 ; pef (/) L. R. 5 H. 1. 711. Lord Cairns, at p. 736. (<7) 7 Ch. 200. (i) L. R. 5 H. L. 735. (A) 8 Ch. 800. (0 6 Ch. 800, 807. (i) See per Lord Westbury, WeB v. THE COMPANIES ACT, 1862. 155 also of adjusting the rights inter se of the contributories. I am inclined to Sect. 38. think that the proper construction would be, reddendo singula singulis, to take the contribution for costs as applicable to the present members, and not to the past members ; but 1 do not wish to give a clear and decisive opinion upon that, because one can conceive a case in which the whole costs ,of the winding-up may have been incurred in respect of past debts, the partners having all backed out, and no business having been done since that time." There seem to be two possible constructions of the section, according as the words " debt or liability of the company " in sub-sect. (2) are or are not held to include the costs of the winding-up. If they do not include these costs, the preliminary enactment of the section is, as respects the costs, unqualified by the sub-section, and the result is (subject to the foregoing observations) to make the past member liable to make payments until the costs are satisfied. If, on the other hand, they do include the costs, then there arises for deter- mination the question, what costs are to be considered a debt or liability of the company contracted before the past member ceased to be a member. The latter>ppears upon the authorities, so far as they go, to be the right construction: and the true principle, to be collected with difficulty from cases in which the point has never yet been clearly raised, is believed to be this : that the liability to the costs of its winding-up is a liability which attaches upon an incorporated company from the very time of its incorpo- ration ; that the costs, therefore, so far as they have been occasioned by, or are attributable to, the necessity of calling upon the B. contributories in respect of what may be called the " old debts," are of the character of old debts (m). This is a view which receives confirmation from a later section of the Act, from which it appears that the Legislature did contemplate a distribution of costs of winding-up between the debts in respect of which such costs were incurred. For the 196th section, which has reference to a company, existing previous to the Act, which is registered under the Act, provides by sub-sect. (5) that every person shall be a contributory in respect of the debts contracted prior to registration who is liable to contribute to the costs so far as relates to such debts. But it is only for costs as connected with debts that a past member can be rendered liable. Thus Sretfs Case (n) is a distinct authority for this : that if the B. debts have been extinguished, the B. contributory cannot be put upon the list with a view to making him liable for the costs. "If, indeed, there were any debts contracted before the past members left the company, in respect of which they ought to be called upon to contribute, it might possibly happen that this might involve some costs ... in respect of which it might be just and reasonable to call on them for further con- tributions. But this could be no ground for including in the measure of their total liability any costs to which they were not justly liable to con- tribute " (o). Again, it was said by Lord Cairns in Clarke's Case (p) that "in order to (m) The liability to the costs is not, (n) 6 Ch. 800 ; 8 Ch. 800. however, so attached to the shares before (o) Per Selbome,L.C., .Brett's Case, 8 Ch. the winding-up as to survive the forfeiture 800, 809. of the shares as a payment due on the (p) Alb. Arb., 16 Sol. J. 554, and see shares at the time of forfeiture : Michael Michael Brown's Case (Eur. Arb.), Reil. Broum's Case (Eur. Arb.), Reil. 32 ; L. T. 32 : L. T, 21 ; 17 Sol. J. 310, 21 ; 17 Sol. J. 310. 156 THE COMPANIES ACT, 1862. Sect. 38. create a liability for the costs of the winding-up, you must have good reason for putting the retiring shareholder on the list in order to make some pay- ment in respect of debt. It is only because he is found on the list as a person liable to pay some of the debts that a jurisdiction to make him con- tribute to the costs would arise." There is a case in the European Arbitration (2) in which a shareholder not liable for calls was kept upon the list as liable in respect of the costs, but the circumstances were very peculiar. .In the interval between the presentation of the petition and the winding-up order he presented a petition for liquidation, under which his creditors, including the company, accepted a composition. The company's proof was for calls and prospective calls, and it was held that the liability for the costs being a thing incapable of proof was not discharged, and that though it was not a liability for which he could be put on the list, yet that being there he would be left there, adding that he was a contributory in respect of the liability to costs. In Marsh's Case (?), the point came before the Court in this way : — M., being liable as a B. contributory, bought up the debts in respect of which he was liable, after the B. list had been settled and after a call had been made upon the past members. Bacon, V.C., there held that the B. contributories must pay the cost of settling the B. list unless the liquidator had money in his hands sufBcient to pay them. " The costs," his Lordship said, " so far as they have been occasioned by the B. contributories, I think the B. contributories are bound to pay, that is, they are bound to pay those costs if not already paid." This ruling, that the B. contributories are liable even for such costs as are above described, only if there are not otherwise forthcoming funds sufficient for their payment, is in some respects borne out by the provision of sect. 144. That section provides that the costs are to be paid out of the assets in priority to all other claims, whence it might be inferred that the A. con- tributories are to be solely responsible for their payment, except in what it is hoped would be the extremely rare event of the A. contributions proving insuflficient to defray even the costs without payment of any of the debts. This will be better explained in the words used by Lord Chelmsford in Webb V. Whiffin : " With respect to the costs, charges, and expenses of the winding-up of the company, there appears to me to be no difSculty. These costs, charges, and expenses are to be payable out of the assets of the com- pany in priority to all other claims. The official liquidator must make calls upon both classes of shareholders to an amount in his judgment sufficient for payment of all the liabilities. The calls upon the existing shareholders are to be first applied in payment of the costs, charges, and expenses of the winding-up. If the amount called for to the whole extent of the liability of this class of shareholders, or their ability to satisfy the calls, is insufficient for this purpose, then, and then only, the past members can be required to contribute, so that there can be no apportionment between these two classes of shareholders with respect to their liability upon this ground. In this case, and also with respect to the payment of the debts and liabilities, the past members of the company are liable only in the event of the existing members being unable to satisfy the contributions required to be^made by them in pursuance of the Act " (s). These words are not, however, as has been seen, borne out by the cases to such an extent as to relieve the B. contributories of costs altogether ; and as regards what was done in Marsh's Case (r), that decision scarcely seems ((?) Davies' Case (Eur. Arb,), L. T. 80 ; (c) 13 Eq. 388. 17 Sol. J. 670. (s) L. R. 5 H. L. 726. THE COMPANIES ACT, 1862. 157 satisfactory, if what was meant was, that the liability to the costs was to gect. 38. depend on the accident of whether the liquidator had or not distributed all — his funds in dividends and in payment of A. costs. If the B. contributory is liable to costs, it would seem that they ought to be paid by him, and not out of the fund available for dividends. The questions falling under this fourth head, however, are, as has been seen, by no means clearly determined, and must still await further elucida- tion by future decisions. The rules, then, which have been established with respect to the contribu- ^"'jfj^^^''^ tories of a company in liquidation and the application of their contributions ^^^ distiibu- may be briefly stated in some such form as the following : — tion. I. The A. contributories are primarily liable for everything, and must be first individually exhausted before any B. contributory can be called upon CO- IL The assets of the company, including the A. contributions, are first (subject to the question of costs) to be applied in payment pari passu of all the debts of the company, irrespective of the time at which such debts^where contracted (u). III. The liability of a B. contributory is limited^by (i.) The amount left unpaid on his shares by the corresponding A. con- tributory (x). (ii.) Such residuum of the debts contracted before he ceased to be a member as remans undischarged when Rule II. has been complied with (y). IV. The contributions of B. contributories form part of the general assets of the company for payment of all the debts of the company, irrespective of the time at whichr such debts were contracted (z). V. If, before a call is made upon the B. list (a), or before payment of such call (V), the debts in respect of which a B. contributory was, having regard to sub-section (2), liable to contribute, or any of them, are in any manner released or extinguished in whole or in part, his liability to contribute to the assets of the company is (subject to any question as to the costs of the winding-up) thereby pro tanto discharged. VI. The liability of a B. contributory to contribute to the costs of the winding-up is confined to such costs as have been occasioned by the necessity of calling upon him for contributions in respect of debts (c). VII. There is no rule that a later class of B. contributories must be ex- hausted before going back to an earlier class of B. contributories. Upon the failure of the A. contributories to satisfy their measure of liability, leaving B. debts unsatisfied, all the past members liable under sub.-sects. (1), (2), become simultaneously liable to contribute (d). Successive transferors of the same shares may also, it seems, be called upon simultaneously (e), but in this case each transferor will have a right to be indemnified by his trans- feree (/). A somewhat singular result of the operation of the rule as to the applica- Effect as regards B. (0 See^;. (3) ; Morris' Case, 7 Ch. 200. (c) Brett's Case, 6 Ch. 800 ; 8 Ch. 800 ; creditors. (u) Morris' Case, 7 Ch. 200 ; 8 Ch. 800 ; Marsh's Case, 13 Eq. 388. See, further, Webb y.Whiffin, L. R. 5 H. L. 711, s. 133. the observations supra, p. 154, et seq. (x) See pi. (4). (d) Morris' Case, 7 Ch. 200 ; S. C. 8 Ch. (y) Morris' Case, Webb v. Whiffin, ubi 800. supra. (e) Eellock v. Enthoven, L. R. 9 Q. B. («) Accidental and Marine Insurance ■ 241, 247. See, however, Humhy's Case, Co., 5 Ch. 428; affirmed sub. nam. Webb v. 26 L. T. 936 ; 20 W. E. 718 ; W. N. 1872, Whiffin, ubi supra. 126 ; and supra, p. 147. (a) Sretfs Case, 6 Ch. 800 ; 8 Ch. 800. (/) Sup-a, p. 147. (6) Marsh's Case, 13 Eq. 388. 158 THE COMPANIES ACT, 1862. Sect. 39. tion of B. contributions, coupled with the rule limiting the amount of those contributions by the twofold limit given above, may be noticed, and for simplicity of explanation may be given in figures. Suppose the B. contribu- tories to have all left the company at the same time ; suppose the B. debts unpaid at the date of the winding-up to be £4000, and the debts contracted since the B. contributories ceased to be members and unpaid at the date of the winding-up (which we will call for simplicity the A. debts) to be £16,000. Suppose the assets of the company, including the A. contributions, suflBce to pay 15s. in the pound. Then after Bule II. has been complied with the B. debts remaining unpaid will amount to £1000, and the A. debts to £4000. The liability then of the B. contributories will, by Eule III. (ii.), be limited to £1000. The amount, however, left unpaid on their shares (i.e., the limit given by Eule III. (i.) ) may be, and we will suppose it is, a larger sum, say £3000. No more, however, can be required than the contribution of the £1000, and this being applied according to Eule IV. will reduce the B. debts to £800 and the A. debts to £3200. No further contributions can then be required. We thus have this singular result, that although there are B. debts left unsatisfied, and B. contributories whose liability, as measured by the limit of their shares, is unexhausted, the creditors can obtain no further dividend. PAET III. Management and Administration of Companies and Associations under this Act. Registered office of compaD)'. Provisions for Protection of Creditors. 39. Every company under this Act shall have a registered office to which all communications and notices may be addressed (a). If any company 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 (j3). (o) s. 62. (;8) As to companies engaged in or formed for working mines in the Stan- naries, see further Staunai-ies Act, 1887, s. 31. Where a company has no registered office, a creditor may serve his demand under sect. 80 at the company's unregistered office (g). Where the registered office of a company had been demolished in the course of some alterations, and its business was being carried on at an office which had not been registered, service on directors at such unregistered office was held sufficient (h). Where a company, previous to this Act, though not formally dissolved had practically ceased to exist, and had no office or officers, it was ordered that service of the bill in a suit to which the company were defendants on the late deputy-chairman and late secretary should be good service («). (jr) Bfitish and Foreign Gas, ^c, Co., 13 W.R. 649 I 12 L. T, 368 ; 11 Jur. (N.S.) 559. (A) Fortune Copper Mining Co., 10 Eq. 390. 0) Gaskell T. Chambers, 26 Beav. 252. THE COMPANIES ACT, 1862. 159 See farther, eases cited under General Order, November, 1862, Rule 3, mfra. Sect. 39. A company incorporated for the manufacture and sale of goods " dwells " within the meaning of 9 & 10 Vict. c. 95, s. 128, at the place of manufacture and sale, and not at the registered office (Ji). The place of registration of a company is not conclusive as to its Income tax ; " residence " within the Income Tax Acts, any more than the birthplace of an individual necessarily determines his residence. But if a company registered here, has its registered office here, and is managed by a Board which meets here, it resides here and is liable to pay income tax on all its profits wherever earned, and even though only a small portion of them actually come to this country for payment to the English shareholders (J). In Golguhoun v. Brooks (m), however, it was held (diss. Pry, L.J.) that " arising or accruing to " does not mean " received by " in Sch. D. of the Income Tax Act, and that a partner resident in England in a firm carrying on business in Melbourne, of whose share of profits part only was remitted to England, was not chargeable with income tax on that part which did not reach him in England. Whether this case is reconcilable with the other authorities, and whether an answer can be given to the judgment of Ery, L. J., would seem worthy of consideration. It has been held that an English company carrying on business and earn- ing its profits abroad cannot deduct for purposes of income tax debenture interest payable to debenture holders resident abroad (ra). The fact that a company has agencies and a chief office here does not make it domiciled or ordinarily resident here (o), when its registered office and secretary are out of the jurisdiction (p). Where a mining partnership, after working'coal mines for more than five in case of corn- years, was incorporated as a limited company, and the question was whether "^^T buying the company in the first year of its existence was to pay income tax on partnership- the average of the five preceding years (j), or on the profits of the current year; it was held that the company (although the former partners were originally the only shareholders) was for no legal purpose the same as the old partnership, and, but for other considerations, would pay on the profits of the current year ; but that the trade it was carrying on was not a trade " set up and commenced " within three years (r), but was an old trade to which a new association had " succeeded " (s), and that consequently the five-year rule would have applied had not the case been shewn to be within the exception of the 4th rule, viz. where the profits have fallen short from specific cause, in which case the 6th case of Sch. D. is to be applied, and the assessment made "according to an average of such period greater or less than one year as the case require " (t). A foreign telegraph company which has cables starting from this country, in case of and offices in this country, and which receives and transmits messages from foi'eign com- this country, " exercises a trade " in the United Kingdom, and is chargeable ^^°^" • with income tax on the profits accruing from the trade (u). (k) Keynsham Co. v. Baher, 2 H. & C. (?) 5 & 6 Vict. c. 35, Sch. A. No. III. 729 ; but see Aierystmth Fkr Co. v. Cooper, parag. 2. 12 Jar. (N.S.) 995. (r) 5 & 6 Vict. c. 35, Sch. D. first case, (0 Cesena Co. v. Nicholson, Calcutta par. 1. Jute Co. T. Mcholson, 1 Exc. D. 428. (s) Sch. D. Kule 4, to first and second (ni) 19 Q. B. D. 400 ; 21 Q. B. Div. 52. cases." (n) Alexandria Water Co. v. Musgrave, (t) Byhope Coal Co. v. Fryer, 7 Q. B. D. 11 Q. B. Div. 174. , 485. (o) Order xi. r. 1. (») Erkhsen v. Last, 7 Q. B, D. 12 ; (p) Jones V. Scottish Insurance Co., 17 8 Q. B. Div. 414. Q. B. D. 421. 160 THE COMPANIES ACT, 1862. Sect. 40. Notice of situation of registered office. Publication of name by a limited company. Penalties on non-publica- tion of name. The London agency of a foreign company whicli earns profits abroad and profits in England is chargeable with income tax upon (1) the whole of the profits earned in England ; and (2) so much of the profits earned abroad as is paid to English shareholders, treating the dividends of the English share- holders for this purpose as composed rateably of so much of the English profits and so much of the foreign profits (x). 40. Notice of the situation of such registered ofiBce, and of any change therein, shall be given to the registrar, and recorded by him : Until such notice is given, the company shall not be deemed to have complied with the provisions of this Act with respect to having a registered ofiSce. As to companies engaged in or formed for working mines in the Stannaries, see further Stannaries Act, 1887, s. 31. 41. Every limited company under this Act, whether limited by shares or by guarantee, 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 company 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 publica- tions of such company, and in all bills of exchange, promissory notes, indorsements, cheques, and orders for money or goods purporting to be signed by or on behalf of such company, and in all bills of parcels, invoices, receipts, and letters of credit of the company. 42. If any limited company under this Act does not paint or affix, and keep painted or affixed, its name in manner directed by this Act (a) it shall be liable to a penalty not exceeding five pounds for not so painting or affixing its name, and for every day during which such name is not so kept painted or affixed, and every director and manager of the company who shall knowingly and wilfully authorize or permit such default shall be liable to the like penalty ; and if any director, manager, or officer of such com- pany, or any person on its behalf, uses or authorizes the use of any seal purporting to be a seal of the company whereon its name is not so engraven as aforesaid (a), or issues or authorizes the issue of any notice, advertisement, or other official publication of such com- pany, or signs or authorizes to be signed on behalf of such company, any bill of exchange, promissory note, indorsement, cheque, order for money or goods, or issues or authorizes to be issued any bill of parcels, invoice, receipt, or letter of credit of the company, wherein its name is not mentioned in manner aforesaid (a), he shall be liable to a penalty of fifty pounds, and shall further be personally (a) Gilberison v. Fergusson, 5 Exc. D. 57 ; 7 Q. B. Div. 562. THE COMPANIES ACT, 1862. 161 liable to the holder of any such bill of exchange, promissory note. Sect. 43. cheque, or order for money or goods, for the amount thereof, unless the same is duly paid by the company. (o) s. 41. The secretary of a limited company having accepted on behalf of the com- pany a bill directed to the company, in which the word " limited," as part of its name, was omitted, was held personally liable on the bill, the same not having been paid by the company (j/). 43. Every limited company under this Act shall keep a register Register of of all mortgages and charges specifically affecting property of the company, and shall enter in such register in respect of each mort- gage or charge a short description of the property mortgaged or charged, the amount of charge created, and the names of the mort- gagees or persons entitled to such charge : If any property of the company is mortgaged or charged without such entry as aforesaid being made, every director, manager, or other officer of the com- pany who knowingly and wilfully authorizes or permits the omis- . sion of such entry shall incur a penalty not exceeding fifty pounds : The register of mortgages required by this section shall be open to inspection by any creditor or member of the company (a) at all reasonable times ; and if such inspection is refused any officer of the company refusing the same, and every director and manager of the company authorizing or knowingly and wilfully permitting such refusal, shall incur a penalty not exceeding five pounds, and a further penalty not exceeding two pounds for every day during which such refusal continues ; and in addition to the above penalty, as respects companies registered in England and Ireland, any Judge sitting in Chambers, or the Vice- Warden of the Stannaries in the case of companies subject to his jurisdiction (j3), may by order compel an immediate inspection of the register. (o) Or his solicitor or agent : Credit Co., 11 Ch. D. 256. (;8) e. s. 35, sub tit. " Stannaries." This section is directory only, and a mortgage is not rendered void by want ^ff^^t "f "on- Of registration (z). registration ; And after a long series of cases to the effect that persons standing in a as regards fiduciary position towards the company and owing under the statute the °^'^^^'^ °f duty of seeing that the charge is registered cannot avail themselves as ^ ^°™'^^^y- against creditors of a charge which is not registered, it has at last been finally decided by the House of Lords that this is not so ; that the statute imposes a pecuniary penalty, and does not impose the further penalty of for- feiting the security ; and that there is no equitable principle or rule by which {y) Penrose v. Martyr, E. B. & E. 499, ^ Co. v. Wardle, 58 L. J. (Q. B.), 377. under 19 & 20 Vict. c. 47, ». 31, the {z) E. p. Valpy and Chaplin, 7 Ch. wording of which is identically the same 289 ; Wright v. Horton, 12 App. Cas. 371, as that of this section on this point ; Atkins M 162 THE COMPANIES ACT, 1862. Sect. 43. the mortgagee can be precluded from holding the security on the ground ■ that he has not complied with the statute (a). Whether an intending creditor who was induced by a director to become a creditor by the concealment through non-registration of the director's security might set up a personal disability in the director to avail himself of his security in competition with him is another matter (a). In such a case the director would be guilty of a fraud, and would no doubt not be allowed in equity to take advantage of his security as against him (b). But mere noD -registration cannot be a representation that there is no incumbrance, for ex concessis unregistered mortgages in favour of persons not directors are valid, and therefore the creditor cannot say that because there was no mort- gage on the register he was entitled to believe there was no incumbrance (J). Moreover he cannot search the register until he has become a creditor (c). Again (1) the registration cannot in the nature of things be made until after execution, and the security therefore cannot be void ab initio, but if void at all, must be avoided by relation. But a contract cannot be avoided by relation : if void it must be for illegality ; the section, however, does not render the unregistered charge illegal, and in the hands of persons other than officers of the company it is valid. And (2) the Acb imposes a certain penalty for non-registration. According to principle, this penalty should be the only penalty, but the decisions referred to imported another, viz., the total loss of the security (d). The reasons against the existence of any such equitable principle or rule as had been set up are elaborately discussed by Jessel, M.E., in Globe Iron Company (e), and his reasoning was adopted by the House of Lords in Wright v. Eorton (/). The earlier cases were as follows : — Directors. In the winding-up of a company directors were not allowed to set up against the general creditors an unregistered charge on the property of the company (g). And where the charge was registered, but insufficiently, inasmuch as there was no description of the property charged, directors were not allowed to avail themselves of it as against creditors (7i). Again, where a solicitor not usually employed by a company was employed by them to act in a particular matter, and, having required security for costs, they gave him a charge on certain debts due to them, but the charge was not registered, the solicitor was not' allowed to avail himself of the charge in the winding-up ; for it was his duty, so far as this particular transaction was concerned, to see that the register was properly kept (J). But gucere was this his duty ? (h). Baukers. Bankers were held, however, not to be in the position of officers of the company for this purpose Q). Shareholders. And SO with shareholders, since they have not the control of the books, a (a) Wright v. Sorton, 12 App. Cas. 371. (jr) Wynii Hall Coal Co., E. p. North (6) Globe Iron Co., 48 L. J. (Ch.) 295 ; and South Wales Bank, 10 Eq. 515. 27 W. R. 424 ; 40 L. T. 380. (A) Native Iron Ore Co., 2 Ch. Div. 345. (c) Wright v. Eorton, 12 App. Cas. 371 ; (t) Patent Bread Co., E. p. Valpy and Globe Iron Co., 48 L. J. (Ch.) 295 ; 27 Chaplin, 7 Ch. 289 ; see also General W. R. 424 i 40 L. T. 380. Provident Assurance Co., 17 W. R. 514 ■ (d) Knowks' Mortgage, 6 Ch. D. 556 ; 88 L. J. (Ch.) 320, noticed infra. ' Globe Iron Co., 48 L. J. (Ch.) 295; 27 (A) Per Jessel, M.R., Knowles' Mortgane W. R. 424; 40 L. T. 380. 6 Ch. D. 556 ; Globe Iron Co., 48 L. j! (c) 48 L. J. (Ch.) 295; 27 W. R. 424; (Ch.) 295; 27 W. R. 424; 40 L. T. 380. 40 L. T. 380. (0 General Provident Assurance Co., (/) 12 App. Cas. 371. E. p. National Bank, 14 Eq. 507, 515. Solicitor; THE COMPANIES ACT, 1862. 163 registration wMoh was defective fey omitting a description of tlie property Sect. 43. charged was held not to render their security invalid (m). Jessel, M.E., however always refused to extend the supposed principle to any case not actually covered by the then existing decisions in the Appeal Court. Thus his Lordship held that the sub-mortgagee of a charge in favour of a director did not lose his security by the fact that neither the mortgage nor the sub-mortgage was registered (n). For the supposed equity would not attach against a person claiming under the director. And so where a company issued debentures secured by a debenture trust deed, and some of the debentures were held by directors, and neither the trust deed nor the debentures were registered, his Lordship held that the directors were entitled to retain their security (o). Again, the omission to register must have been " knowingly and wilfully " authorized or permitted. Where, therefore, directors gave the secretary particulars of a charge executed in their favour, and told him to register it, but he omitted to do so, and they had before the commencement of the winding-up realized their security, his Lordship held that the liquidator could not make them refund the proceeds (p). The whole question was again discussed in the Court of Appeal in Smith's Gase (q), where Baggallay, L.J., adhered to JE. p. Valpy and OhapUn (r) and Native Iron Ore Co. (s), but Jessel, M.E., and Bramwell, L.J., while treating themselves as bound by those decisions, did not approve them, and succeeded in distinguishing them from the case before the Court. That was a case where one of three partners was a director, the loan was a partnership loan, the security was unregistered. The Court held that the firm could hold the security (t). The question so much debated in these cases has now been set at rest by Wright v. Eorton (u). The debentures there were issued to a director : they were not registered : their validity was contested by unsecured creditors and also by debenture holders : but it was not shewn that they had made any inquiry as to the charges or as to the existence of a register. The House of Lords held the debentures to be an effectual security as between the director and such creditors. The Act requires registration, not of the instrument creating the charge^ What is to be but of the property charged. It extends therefore to the case where there is registered. no instrument, e.g., where the security is created by deposit (x). Quaere, does it extend to vendor's lien ? By s. 19 of the Stannaries Act, 1887, mortgages and mortgage debentures Mining com- of companies engaged in or formed for working mines within the Stannaries P™'es in the (s. 2) must also be registered within twenty-eight days from their date at the office of the registrar of the Stannaries Court, and unless registered they confer no title as against claims for work and labour done, or services, or goods and materials. Moreover, certain wages are entitled to priority over even registered mortgages (ss. 4, 9). It is now a very common practice for limited companies to issue deben- Securities to tures to bearer. Where such debentures carry a security upon the property Clearer. (m) General South American Co., 2 Ch. (p) Boro' of Hackney Newspaper Co., 3 DiT. 337. Ch. D. 669. (m) International Pulp Co., Knowles' (jj) 11 Ch. Div. 579. Mortgage, 6 Ch. D. 556 ; and see Globe (r) 7 Ch. 289. Iron Co., 48 L. J. (Ch.) 295 ; 27 W. K. (s) 2 Ch. Div. 345. 424 ; 40 L. T. 380. («) Cf. Underbank Mills Co., 31 Ch. D. 226. (o) Globe Iron Co., 48 L. J. (Ch.) 295 ; («) 12 App. Cas. 371. 27 W. K. 424; 40 L. T. 380. (ic) Smith's Case, 11 Ch. Div. 579, 585. m2 164 THE COMPANIES ACT, 1862. Sect. 43. of the company, the security is sometimes given by the execution to trustees of a debenture trust deed, but more commonly by giving a charge by the debentures themselves. A debenture trust deed need not be executed unless there be special reason. Where a trust deed is executed, the trustees are commonly registered under this section as the persons entitled to the charge, and this is probably a compliance with the section, although the names of their cestuis que trust, viz., the bearers of the debentures, are not disclosed. But where there is no trust deed, how is the section to be complied with ? The bearers of the debentures of course are not known, and although for the purpose of the security this is of httle importance since any bearer who is not a director does not want to register, and any bearer who is can of course register himself, yet it may affect the direc- tors very much, for if they do not comply with the section they are exposed to penalties. But qucere can you " knowingly and wilfully " omit to register a name which you do not know ? andjucere further, does the penalty apply except in the case of the first entry to be made at the time when the property is mortgaged or charged ; and is it for this purpose therefore suffi- cient that the directors shall have registered the first person to whom the debenture to bearer is issued ? As to the stamp duties on securities to bearer, see 48 & 49 Vict. c. 51, s. 21, and 51 Vict. c. 8, s. 12. Power of The question whether a company incorporated under these Acts can companies to mortgage must, it is conceived, be answered by determining whether upon mortgage. y^g ^j.^g construction of the memorandum of association, including the " inci- dental and conducive" clause, mortgaging is within its objects as defined. The distinctions between companies incorporated by charter and companies incorporated by statute have already been pointed out, and the limits within which companies incorporated under this Act are confined have been dis- cussed (y). The principles applicable to a company incorporated by Special Act are, it is conceived, mutatis mutandis to be applied to companies incor- porated under this Act (z). As regards companies incorporated by Special Act, it has been held that in determining whether such a company has by implication power to borrow, you must look first whether it is to carry on an undertaking requiring the expenditure of money, and secondly, whether means are provided for putting the company in funds for the purpose. If there are no such means, then you may infer a power to obtain funds, and this may infer a power to borrow. But if means are provided, e.^'., by raising capital or by calling up more capital, or by a limited power of borrowing which may be within reason sufficient for the purpose, then the Court will not seek to measure whether in the event those means will be sufficient or not. Those means being pro- vided, you cannot infer at the same time a power to borrow (a). " There is no doubt that where [quaere, meaning "even where"] there is not an express prohibition against borrowing in a case of a company or a society ■constituted for special purposes, no borrowing can be permitted without express authority unless it be properly incident to the course and conduct of the business for its proper purposes " (i). If the company has property and is by the memorandum of association (ij) Suiva, p. 15. 354, 360. (t) As the principles of Ashbury Co. \. (a) Wenlock v. Eiecr Dee Co., 36 Ch. Jiiche, L. R. 7 H. L. 653, as to companies Div. 675, n., 677, n., 682, n. incorporated under this Act are applicable (6) Per Lord Selborne, Blackburn Soc. v. to companies incorporated by any statute, Brooks, 22 Ch. Div. 61, 70. Wenlock v. Bivor Dee Co., 10 App. Cas. THE COMPANIES ACT, 1862. 165 antliorized to dispose of it, it may well be that the company can mortgage Sect. 43. it unless expressly prohibited from doing so (c), but this decision goes not to power to borrow, but power to give security for debt. A company, as a body corporate, can in furtherance of its objects deal with its property as freely as an individual can (ti), subject to any regulations con- tained in its articles, and can therefore, in the absence of a prohibition express or implied (e), effect mortgages of its property. This power extends to a mortgage by deposit, and to the giving such a security as well for a past debt as for a future one (/). An authority to borrow to a limited amount on certain terms implies a veto to borrow to a larger amount or on different terms (g). But a power to borrow and mortgage, although readily implied in the case of a trading company, is not incident to every company's objects. Thus a building society in the absence of a borrowing power cannot borrow at all. In the case of a company whose deed of settlement required that mort- gages should be executed with certain prescribed formalities, a security given to the solicitors of the company, and not so executed, was held not binding on the company. In the case referred to, the deed required that mortgages should be sealed with the company's seal, be signed by two directors, and countersigned by the secretary or actuary ; a deposit of title deeds with the company's solicitors, accompanied by a memorandum signed by the general manager, but not under the seal of the company, was held not to create a valid security, although there was evidence that the manager had been authorized by the directors to effect the loan and sign the memorandum (h). The fiduciary relation between the company and the mortgagees does not seem to have been much dwelt upon in the decision of this case, but it is in this fiduciary relation (i) that the distinction must be found between this case and another case in the same company, and decided by the same learned judge, in which it was held that the formalities required by the company's deed for legal mortgages did not apply to equitable mortgages by deposit, and that such a security was therefore valid {k). The mortgage in this case was given to the bankers as a collateral security for bills under discount. If there be power to charge, and there be shewn an intention to create a charge, a valid charge may be created, although the legal security given may be incomplete (I). If the directors, having under the articles power to borrow to a limited Limited amount, borrowmoney on debentures at a time when the liabilities already borrowing exceed the limit, the debentures are void (m). In such a case the directors P"^^''' (c) Patent File Co., L. R. 6 Ch. 83. (A) General Provident Assurance Co., 38 (rf) Cf. Bath's Case, 8 Ch. Diy. 334, as L. J. (Ch.) 320 ; W. N. 1869, 58 ; 17 to power to compromise. W. E. 514. (e) Werdock v. River Dee Co., 36 Ch. (J) See 14 Eq. 513. Dir. 675, n. ; 10 App. Gas. 354. {k) General Provident Assurance Co., (/) Patent File Co., M. p. Birmingham B. p. National Bank, 14 Eq. 507. Banking Co., 6 Ch. 83 ; and see Riche v. (I) Strand Music Sail Co., 3 D. J. & S. Ashbury Railway Carriage Co , 9 Ex. at 147 ; Ross v. Army and Navy Hotel Co., pp. 264, 292 ; GSbs and West's Case, 10 34 Ch. Div. 43. Eq. 312 ; Hamilton's Windsor Iron Works, (m) Pooley Hall Colliery Co., 21 L. T. JB. p. Pitman, 12 Ch. D. 707 ; Athenaeum 690 ; 18 W. K. 201 ; English Channel Life Assurance Society, 4 K.& 3. 5i9, 562; Steamship Co. v. Rolt, 17 Ch. D. 715; F. p. National Bank, U Eq. 507. Fountaine v. Carmarthen Co., 5 Eq. 316; (jr) Wenlock v. River Dee Co., 36 Ch. Howard v. Patent Ivory Co., 38 Ch. D. 156, Dir. 675, n. ; 10 App. Cas. 354 ; 36 Ch. D. 170 ; Bansha Mills Co., 21 L. R. Irish, 181. 166 THE COMPANIES ACT, 1862. Sect. 43. may be personally liable in damages for their implied representation that they had authority to issue debentures (m). And if the borrowing power of the company itself as distinguished from that of the directors is limited, the lender cannot rely upon the principle of Boyal British Banle t. Turquand (o), and say that he was entitled to presume that the limit was not being exceeded. Thus in the case of a benefit build- ing society with a limited borrowing power, the person who deals with the society is bound to ascertain whether the limit has been exceeded or not (p), and if he advances when the limit has been exceeded, he is lending to a society which cannot borrow, and there is therefore no debt, and the society is not liable (p). Bramwell, LJ., indeed, even went farther, and said {q) that a person dealing with the agents of a society which has given a limited authority is bound to inquire whether that authority has been exceeded or not, and if it has been exceeded the principals are not bound. But it is to be observed that for the purposes of the decision in that case it was not necessary to determine whether a borrowing in excess of the powers of the directors as distinguished from those of the society, could be supported upon the principles of Boyal British Bank v. Turquand (r), upon the footing that the lender did not know that the limit had been exceeded, and was entitled to presume that it had not (s). If money be borrowed by a company which cannot borrow (as a building society without a borrowing power) there is no debt, and if subsequently the society acquires power to borrow and then issues deposit notes for the money previously borrowed, the notes are not binding on the society, for as before there is no debt (0- This decision and the decision in Blackburn 8oc. V. Brooks (No. 2) («) seem to involve that a society which has borrowed when it has no power to do so has no means of honestly repaying that which it has received. If the borrowing be not ultra vires of the company, but only of the directors' powers under the articles, the case is one of those in which the act done is ultra vires the articles only (x), and which may therefore be ratified by the company, and if ratified is valid (y). Again, suppose the borrowing power of the directors limited to £10,000, and sums of £5000 and £8000 borrowed successively from A. and B. without disclosing to B. the advance already made by A., qimre what would be the rights of B. In Irvine v. Union Bank of Australia (z) the point did not arise, as A. and B. were the same person. Where the power was to borrow to an amount " not exceeding two-thirds of the capital of the company for the time being not called up," it was held that this was not confined to capital uncalled upon issued shares, but included share capital remaining unissued (a). , i In Yorkshire Bailway Co. v. Madure (h), a railway company which had not power to borrow successfully raised money by selling part of its rolling stock (n) Firhanli v. Humphreys, 18 Q. B. («) E. p. Watson, 21 Q. B. D. 301 DiT- 54. (m) 29 Ch. Div. 902. (o) 5 E. & B. 248 ; 6 E. & B. 327. (a;) See ante, p. 14. • (p) Chapleo V. Bmnswick Buildimj Soc, (f/) Irvirw y. Union Bank of Australia 6 Q. B. DiT. 712, 713, 715; Wailock v. 2 App. Cas. 366 ; Grant v. United Kiwjdom , River Dee Co., 36 Ch. Div. 675, u. ; 10 Switchback Co., 40 Ch. Div. 135. App. Cas. 354. (») 2 App. Cas. 366, 880. ((/) Chapleo v. Brunsioick Building Soc, (a) English Channel Steamship Co v 6 Q. B. Div. 705. Solt, 17 Ch. D. 715. ■ M 5 E. & B. 248 ; 6 E. & B. 327. (6) 21 Ch. Diy. 309 ; of. North Central (s) See as to this Irvim v. Union Bank Wagon Co. v. Manchester Railway Co 35 of Australia, 2 App. Cas. 366. Ch. Div. 191 ; 13 App. Cas. 554. THE COMPANIES ACT, 1862. 167 to a wagon company, and at the same time contracting with the wagon Sect. 43. company for the hire of the rolling stock at a rent which would repay the money with interest in five years, and then for its repurchase at a nominal price. A power to borrow does not necessarily include a power to undertake further liability to protect the security given for the money lent. Thus where - directors of a building society advanced on second mortgage, a bond of cor- roboration guaranteeing the first mortgage debt was held ultra vires (c). But a redemption of the first mortgage may be legitimate (d). Under a power to mortgage, a mortgage of arrears of a call already made Mortgage of is valid (e), and so is a mortgage of the proceeds of a call not yet made, but ''*"®- already determined upon, although so determined upon with a view to giving a charge upon it (/). And where the deed of settlement gave no express power of borrowing, but gave the directors large general powers, a charge upon the proceeds of a call already made, but not immediately payable, given to the bankers of the company as a security for moneys advanced to meet pressing demands, was valid {g). But in the absence of express power to mortgage future calls, a mortgage of the proceeds of a future call is invalid, for such a charge would prevent the directors from freely exercising the discretion given them as to calling up capital Qi). But book-debts not yet accrued due do not stand on the same footing. Book-debts are property of the company, and they may be validly charged («)■ It has, however, been held that debentures charging all the lands, pro- perty, and effects of the company of what nature or kind soever, which the company should then hold or be possessed of, were, in the liquidation of the company, effectual to charge calls made in the winding-up (h). But this decision must be taken to be overruled (J).' But if under its memorandum and articles the company has power to Power to charge future calls such a charge is valid (m), and the power need not neces- mortgage i sarily be given by the memorandum : it will be sufficient if it is contained in ^^^\^^^ ' the contemporaneous articles (ra). A power to charge " property " or " property and funds " does not authorize a mortgage of uncalled capital (o), and a charge upon " real and personal estate " does not charge the uncalled capital {p). Capital uncalled is only sub modo the property of the company, and the right of the company to it is rather in the nature of power than property. A power may be charged, no (o) Small v. Smith, 10 App. Cas. 119. (k) lAshman's Claim, 19 W. R. 344; 23 (d) Sheffield Building Soc. v. Aizlewood, L. T. 759 ; cf. Panama Mail Co., 5 Ch. 318. 44 Ch. D. 412. (0 Bank of South Australia t. Ahrahams, (e) Humber Ironworks Co., 16 W. E. L. R. 6 P. C. 265. 474, 667. (m) Phcenix Bessemer Steel Co., 32 L. T. (/) Sankey Brook Goal Co., 9 Eq. 721 ; 854; 44 L. J. (Ch.)683 ; Howard v. Patent Pickering v. Hfracombe Railway Co., L. R. Ivory Co., 38 Ch. D. 156 ; and see Bank of 3 C. P. 235, 247. South Australia v. Abrahams, L. E. 6 P. C. (g) Gihis and West's Case, 10 Eq. 312. 265, 271. (A) K p. Stanley, 4 D. J. & S. 407 ; 33 (re) Phcenix Bessemer Steel Co., 32 L. T. L. J. (Ch.) 535 ; 10 L. T. 674 ; 4 N. E. 854 ; 44 L. J. (Ch.) 683 ; Pyle Works, 255; 12 W. R. 894; 10 Jur. (N.S.) 713; 44 Ch. Uv. 534. Sankey Brook Coal Co. (No. 2), 10 Eq. 381 ; (o) Bank of South Australia v. Abrahams, Bank of South Australia v. Abrahams, L. E. L. E. 6 P. C. 265, 271 ; Bower v. -Foreign 6 P. C. 265 ; and see King v. Marshall, Gas Co., W. N. 1877, 222. 33 Bear. 565 ; Marine Mansions Co., 4 Eq. (p) Colonial Trusts Corp., E. p. Brad- 601, 609. shaw, 15 Ch. D. 4S5. It does not appear (»■) Bloomer v. Union Coal Co., 16 Eq. from the report how this company had 383. power to charge uncalled capital. - 168 THE COMPANIES ACT, 1862. Sect. 43. doubt, but apt words or a sufScient context must be found to authorize - it {q). An authority to mortgage the company's "properties and rights" gives power to mortgage uncalled capital (r). Debentures ; Debentures issued by a company under a general power of borrowing in part discharge of existing debts, are valid (s). And if a company have not by virtue of its articles any power of borrowing, yet a special resolution is a sufficient authority for borrowing on deben- tures (t); and general powers given by the articles to directors may be sufficient to authorize their borrowing (u). cliaiging the A debenture purporting to give a charge on or to be an assignment of " ?" ''„ " the undertaking," may, according to the language employed, charge all the ' property of the company (a;), or the property in existence at the date of the debenture only, and not subsequently acquired property (i/). The cases relating to railway companies' debentures (z) are not generally in pari materia, for they relate to a peculiar subject-matter, viz., a permanent railway (a). An instrument headed " obligation," by which the company " bind them- selves, their successors, assigns, and all their estate property and effects," constitutes, at any rate when read with reference to articles of association which assist such a construction, a charge upon the property of the company (6). And an instrument headed "debenture," by which the company " bind themselves and their successors and their real and personal estate," and which provides for payment of the debenture holders pari passu, constitutes a charge (c). effect of; The effect of a debenture charging "the undertaking" {d), or the "under- taking and property " (e), or " all the estate property and effects " (/), of the company, is to create a charge of which the debenture holders may, no doubt, as against the going company, avail themselves by the appointment of a receiver (d) (g), and which upon the winding-up of the company attaches upon the property of the company as it exists at that date (d), (e), (/), (g) ; but which, until action brought to enforce the security or winding-up com- menced, leaves the company free to dispose of its property by sale or mortgage while carrying on its business in the ordinary course Qi) ; and a (5) See uotes (0) (p), p. 167. see Florence Land Co., E.p. Moor, 10 Ch. (r) Howard y. Patent Ivory Co., 38 Ch. Div. 530 ; Colonial Trusts Corp., E. p. D. 156. Bradshaw, 15 Ch. D. 465 ; King v. Marshall (s) Inns of Court Hotel Co., 6 Eq. 82 ; 33 Beav, 565. Howard v. Patent Ivory Co., 38 Ch. D. (z) Gardner v. London, Chatham, and 156. Dover RaUtoay Co., 2 Ch. 201 ; Blaker v. (i) Bryon v. Metropolitan Saloon Omni- Herts Waterworks Co., 41 Ch. D. 399. 6ms Co., 3 De G. & J. 123. (a) See per Giffard, L.J., 5 Ch. 321. (u) Gibbs and West's Case, 10 Eq. 312, (6) Florence Land Co., E. p. Moor, 10 V. supra. Directors borrowing without Ch. Div. 530, notwithstanding Norton r. authority for the discharge of expenses Florence Land Co., 7 Ch. D. 332. See also bond fide incurred will as trustees be en- Jones v. Swansea Soc, 29 VV. E. 382 ; 50 titled to indemnitj' from their cestuis que L. J. (Q. B.) 428 ; 44 L. T. 106. trv^t: German Mining Co., E. p. Chippen- (fi) Colonial Trusts Corp., E. p. Brad- dale, 4 D. M. & G. 19. The distiuction shaw, 15 Ch. D. 465. between moneys borrowed and debts con- (d) Panama Mail Co., 5 Ch. 318. tracted is established, and rests on sound (e) Marine Mansions Co., 4 Eq. 601. principles: Ibid. 40. See, however, fur- (/) Florence Land Co., E. p. Moor, 10 ther, infra, " Equitable debt." Ch. Div. 530 ; and see Hodson v. Tea Co., (a) Marine Mansions Co., 4 Eq. 601 ; 14 Ch. D. 859. Panama Mail Co., 5 Ch. 318 ; of. Lishnuxn's (g) Colonial Trust Corp., E. p. Brad- Claim, 23 L. T. 759. As to its charging shaw, 15 Ch. D. 465, 472. the company's lands, see Wickham v. New (A) Florence Land Co , E. p. Moor, 10 Brunswick Railway Co., L. R. 1 P. C. 64. Ch. Div. 530, 540, 547 ; Mooi- v. Anglo- {y) New Clydach Co., 6 Eq. 514; and Italian Bank, W Ch. Div. 6&1,6S7 ; Hamil- THE COMPANIES ACT, 1862. 169 mortgage so executed may have priority over the charge of the undertaking (i), Sect. 43 . even though the charge on the undertaking be expressed to be a first charge — — on the undertaking lands and effects (k). Debentures charging the undertaking of a waterworks company in- corporated under this Act as a limited company have been held not to confer upon the holders the statutory power of sale under s. 19 of the Conveyancing Act, 1881, and to be within the principle of Gardner v. London, Ghatham, and Dover Railway Go., 2 Oh. 201, so as to exclude any right in the debenture holders to a sale of the undertaking or the appointment of a manager Q). If the debenture be expressed to be a charge which until default in pay- ment of principal or interest shall be a floating security, a purchaser from the company of part of its lands is entitled to reasonable evidence that there has been no default (m). In an action brought by one debenture holder on behalf of himself and all others, the plaintiff cannot have a personal judgment for more than the amount due to himself, but he may have a declaration that he and the other debenture holders are entitled to stand in the position of judgment creditors for the whole amount, and may have a receiver of the property of the com- pany not included in the charge, so as to get protection against other possible judgment creditors (n). QucRre whether Judicature Act, 1875, s. 10, has affected the power of a chargiug company to charge after-acquired property as against its other creditors (o). f"'are An assignment by way of mortgage of business premises and plant, ^ P • J • machinery, and effects in and upon the premises, passes the stock-in-trade for the time being (p). An assignment of all book-debts due and owing, or which may during the continuance of the security become due and owing to the mortgagor, is valid (j). No one seems to know exactly what " debenture " means (r). Chitty, J., Meaning of has gone so far as to say that " a debenture means a document which either " debenture." creates a debt or acknowledges it, and any document which fulfils either of these conditions is a debenture " (s). North, J., would certainly not go so far (i). It has been held that for the purposes of the Stamp Act an instru- ment called on its face a " debenture " with coupons for interest attached and providing that the company will " pay the amount of this debenture to A. B. or order," is chargeable with a debenture stamp and not with a promissory note stamp («). Sect. 17 of the Bills of Sale Act, 1882, enacts that " nothing in this Act Registration shall apply to any debentures issued by any mortgage, loan, or other in- "^ ^^'^^^''J''^l corporated company, and secured upon the capital stock or goods, chattels, g^jg ^^^..^ ton's Windsor Ironworks, E. p. Pitman, 42 L. T. 504 ; 43 L. T. 43. 12 Ch. D. 707, 710, 712, 714. (?) Tailby v. Official Beceiver, 13 App. (0 Hamilton's Windsor Irmtcorks, E. p. Cas. 523 ; S. C. 17 Q. B. D. 88 ; 18 Q. B. Pitman, 12 Ch. D. 707 ; Moor v. Anglo- Div. 25. Italian Bank, 10 Ch. Div. 681. (f) See British India Co. v. Commis- (K) Wheatley v. Silkstone Co., 29 Ch. sioners of Inland Revenue, 7 Q. B. D. 165 ; D. 715. Contrast, however, Murray v. Scott, Florence Land Co., E. p. Moor, 10 Ch. Div. 9 App. Cas. 519. 530, 539 ; Edmonds v. Blaina Furnaces Co., (0 Blaker v. Herts Waterworks Co., 41 36 Ch. D. 215. Ch. D. 399. (s) Levy v. Abercorris Co., 37 Ch. D. (m) E.p. Home and Hellard,29 Ch.D.736. 260, 264. (n) Hope v. Croydon Tramways Co., 34 (f) Topham v. Greenside Co., 37 Ch. D. Ch. D. 730. 281, 291 ; and see Jenkinson v. Brandley (o) Florence Land Co., E. p. Moor, 10 Mining Co., 19 Q. B. D. 568. Ch. Div. 530, 535, 543, 547. («) British India Co v. Commissioners (p) Anglo-American Leather Cloth Co., of Inland Bevenue, 7 Q. B. D. 165. 170 THE COMPANIES ACT, 1862. Sect. 43. and effects of such company." Many questions arise upon this diflScult ■ section in a diflScult Act. " Mortgage, loan, or other incorporated company." Must the company be one ejusdem generis with a mortgage or loan company, or is the section applicable to every company, howsoeyer incorporated, whose objects include expressly or by implication a power to borrow money for the undertaking? Upon this question North, J., leans towards holding that the section must refer to companies ejusdem generis with a mortgage or loan company, but has difSoulty in saying what such a company ejusdem generis can be (x) ; while Chitty, J., is satisfied that the words " or other incorporated company " are not to be cut down by the context (y). Coleridge, C.J., also is of opinion that the section is not confined to companies incorporated for the purpose of mortgage or loan («). " Secured upon the capital stock or goods, chattels, and effects of such company." Must the security be one which is secured upon all the com- pany's property, to the exclusion of a charge on specific property? This question was left undecided in Boss v. Army and Navy Hotel Co. (a). North, J., would seem to be of opinion that a charge upon specific property is not within the section (x). The section speaks of "debentures issued . . . and secured upon ..." Is a security given to one person alone upon a single contract of loan brought within the section by calling it " a debenture " ? It is conceived that the section contemplates an " issue of debentures," a borrowing of money for the benefit of the undertaking from several lenders. But this has not been so decided, and Chitty, J., has held not only that where there are several lenders but only one security given for the benefit of all, this is within the section (6), but further that a single security to a single lender which did not purport to be a debenture was within the section (c). It is conceived that if a single lender advances money to the company upon a security given upon some part of the company's chattels — in other words, if the company executes to A. B. a bill of sale to secure money lent — this cannot be broiight within the section by calling the security a debenture. It is clear that if the company invites subscriptions to a debenture issue of £100,000, to be secured upon the company's undertaking and all its stock-in- trade, and issues a series of debentures accordingly, this is within the section. Where the line is to be drawn between the two remains to be decided. A common form of securing debentures is to execute a trust deed assuring to trustees the property to be charged and declaring trusts in favour of the debenture holders, and to issue to the debenture holders an instrument con- taining only a covenant for payment, but referring on its face to indorsed conditions, one of which is that all the debenture holders shall be entitled to the benefit of the trust deed. In such case the trust deed, even if registered, will not protect the security, for it is not in the form in the schedule to the Act (d), and the debentures in the form above described it has been said pass no property and without the trust deed give no security (d). But the latter point at any rate is not sound if the trust deed be sufficiently (a;) Topham v. Greensido Co., 37 Ch. D. (6) Edmonds v. Blaina Furnaces Co 281, 291 ; and see Jcnkinson v. Brandtoy 36 Ch. D. 215. MimngCo., 19 Q B. D. 5G8. (o) Levy v. Ahercorris Co., 37 Ch. D. (!/) Levy v. Ahercorris Co., 37 Ch. D. 260, 264. 260, 263. (ci) BrooMehurst v. Railway Pnntinq Co., (z) Heed v. Joannon, 25 Q. B. D. 300, W. N. 1884, 70 ; Jenkinson v. Brandley h^inuT^- .Q Mining Co., Id Q.-B.-D.^ea. (a) 34 Ch. Div. 43. TEE COMPANIES AOT, 1862. 171 referred to and identified in the debenture (e) : a debenture in such, a form Sect. 43. as above may manifest upon its face and by reference to the condition indorsed an intention to give a valid charge, and may amount to an equitable contract, to which effect will be given, to give a charge upon the property. In such case the debentures, although unregistered, will be valid as against the grantor under the Act of 1882 (/). Under the Bills of Sale Act, 1878, an unregistered bill of sale was not void except as against certain persons, viz. trustees in bankruptcy and execution creditors; and inasmuch as a winding-up is not a bankruptcy, and a liquidator is not a trustee in bankruptcy, an unregistered bill of sale given by an incorporated company was good as against the liquidator {g). But under the Act of 1882 an unregistered bill of sale is void generally, and the Act applies as much to a bill of sale given by an incorporated company as to one given by an individual (Ji). Except, therefore, where the case falls within sect. 17 the unregistered bill of sale of an incorporated company ■under the Act of 1882 is void. A Divisional Court (Coleridge, C.J., and WUls, J.) has, however, held (i) that the debenture of an incorporated company is not within the Bills of Sale Act, 1878, at all ; and further, that even if it was within it until 1882, yet that the words in sect. 17 of the Act of 1882, " Nothing in this Act," mean "Nothing in the Act of 1878 or the Act of 1882," with the result that the Acts of 1878 and 1882 do not apply to debentures. It is noticeable that according to the report, neither the Marine Mansions Oo. (k) nor Atten- horougKs Case (J) was cited. The decision provokes consideration: the argument of the counsel for the defendant is instructive reading. Debentures may lawfully be issued at a discount, and therefore if it be Debentures left to the directors to borrow on such terms as they think fit (m), or if power 'ssued at a is given them to borrow or raise money (m) or to borrow simply (n), they may '^°''™ ■ issue debentures at a discount. It is obvious that a discount is really exactly the same thing as an increase in the rate of interest : the discount is only the present value of the difference in the rate of interest calculated over the currency of the debenture. And there is no reason why a director should not take debentures at a discount on the same terms as other people, and if he does he cannot bo made to refund the discount (o). In the Begemlfs Canal Ironworks Co. (jp) out of 100 debentures of £250 each sixty were issued to the public at 95 per cent. The remaining forty, representing £10,000, were vested in trustees to secure the payment of a loan of £8000. The debenture bore interest at 6 per cent., the £8000 was advanced at 10 per cent. In the winding-up the lenders of the £8000 claimed to prove for the £10,000 and to rank pari passu with the holders of the sixty debentures until their advance with 10 per cent, was repaid, and they were held so entitled. The holders of the sixty debentures argued that the issue of the forty debentures had been made at a price of less than 95 per cent., and at a rate of interest in excess of 6 per cent. But clearly this was not so. They were issued as security only. And . 204. \V. N. 1889, 123. (A) Milters flale Co., 31 Ch. D. 211 ; THE COMPANIES ACT, 1862. 185 about the appointment of a liquidator. The appointment of a liquidator Sect. 51. at the meeting was held invalid (i). This case, however, has been doubted (k). So, tinder the Act of 1862, where notice was given of a meeting " for the Sect. 129. purpose of considering, and, if so determined on, of passing a resolution to wind up the company voluntarily," and at the meeting a resolution was passed " that it has been proved to the satisfaction of the company that the company cannot, by reason of its liabilities, continue its business, and it is advisable to wind up the same," and appointing a liquidator ; it was held that the resolution was invalid as an extraordinary resolution under sect. 129 (3), for that the notice, though sufiScient for the purpose of passing a resolution requiring confirmation, was insufBcient for the purpose of passing a resolution requiring no confirmation (I). So again where the notice was "To take into consideration the present position of the company's affairs, and the desirability of bringing its opera- tions to a close, and to pass a resolution for the voluntary winding-up of the company, should it be determined to do so," and to appoint liquidators : and at the meeting a resolution was passed in the words of sect. 129 (3), this was invalid, and a supervision order which had been made was discharged (m). To constitute a valid notice for the purpose of an extraordinary resolution under sect. 129 (3), though it may not be necessary to follow the precise terms of that clause, yet it is necessary to give the shareholders a notice which will give them to understand that it is proposed to proceed under that clause (I). If the notice follows the exact words of s. 129 (3) every shareholder will be taken to know that the resolution will not require confirmation (n). Again,^ where, in a company whose articles contained a power of amalgama- Sect. 161. tion, a notice was given of a meeting " when the agreement [for amalgamation] entered into with the JBank of Hindustan, Limited, will be submitted for approval, and resolutions to voluntarily wind up the bank and appoint liquidators will be proposed," it was held that, taking the notice in connec- tion with the fact of there being in the articles a power to amalgamate, the above was not a suflcient notice that this was to be a proceeding under sect. 161 (o). But Giffard, V.C., there intimated that any sufBciently plain notice would have been effectual, as if the notice had gone on to say, "This is to be carried out under the Act " — or, if it had given notice to the parties that it was intended to pass a resolution giving authority to the liquidators to carry out the arrangement. For notices are not to be construed with excessive strictness, or mere technicalities introduced into their consideration, provided they give the shareholders proper notice on the subject of that which is proposed to be done (p). And notwithstanding what was said by Turner, L.J., in Se Imperial (0 stearic Acid Co., 11 W. B. 980; 2 (m) Silkstone Fa'l Co., 1 Ch. Dir. 38. N. K. 544 ; see also Anglo-Californian Gold (n) Stone v. City and County Bank, 3 Mining Co. t. Lewis, 6 H. & N. 174 ; cf. as C. P. D. 282, 296. to the necessity of specifying the resolution (o) Imperial Bank of China, ^c, v. Bank which is to be submitted ; Dean v. Bennett, of Hindustan, ^c, 6 Eq. 91 ; see also Irriga- 9 Eq.'625; 6 Ch. 489. tion Co. of France, E. p. Fox, 6 Ch. 176, (k) Welsh Flannel Co., 20 Eq. 360 ; see 193. also note to s. 133 (2). (p) Wright's Case, 12 Eq. 335, n., 345, n. (I) Bridport Old Breu-ery Co., 2 Ch. 191. And see Table A., (35), note, infra. 186 THE COMPANIES ACT, 1862. Sect. 52. Conditional notice. " Conclusive evidence." Banlc of China, &c. {q), it does not follow that because the notice and the resolution include two things, as amalgamation and winding-up, and one of them, as the amalgamation, turns out to be tdtra vires, the notice and the resolution become as respects the other, viz., the winding-up, invalid (r). A resolution which, for want of sufficient notice, is invalid, cannot be ratified by a subsequent general meeting, for the powers of a general meeting are limited to acts within the articles (s). The notice of a meeting must be not contingent or conditional but abso- lute. A notice of a first meeting to pass certain special resolutions, stating further that should the resolutions be duly passed they will be submitted for confirmation on a day named, is an invalid notice so far as the second meeting is convened, for it is to be held only upon a contingency which at the date of the notice is undetermined (t). The declaration of the chairman is by this section made "conclusive evidence" that the resolution has been carried. Hall, V.C, in one case construed this in the largest sense. His Lordship made a supervision order subject to the production of an affidavit stating that the voluntary resolution had been passed by the statutory majority. On the following petition day it was stated that such an affidavit could not be made, as in point of fact it could not be proved that there had been a statutory majority, although if a poll had been demanded there would have been such majority. The chairman of the meeting had however declared the resolution duly passed. His Lordship held this declaration sufficient, and dispensed with the affidavit previously required («). Of course if the chairman's ruling is challenged by legal proceedings it is not conclusive (x). The chairman has prima facie authority to decide all questions which arise at the meeting and which necessarily require decision at the time, and the entry in the minute book of his decision is primd facie evidence of the correctness of the decision, and the onus of displacing that evidence is on those who impeach its correctness {y). If the chairman improperly refuse to put an amendment, the resolution if passed is not binding (z). Amendments. Sometimes a company's articles contain regulations as to giving notice of amendments to resolutions. In the absence of any such regulations it is conceived that it would be competent to a meeting to entertain and vote upon any amendment pertinent to the subject matter of the resolution of which notice has been given (a). Having regard to the words of this section " notice specifying the intention to propose such resolution," qucere whether a special resolution deriving as it does its efficacy from the statute must be passed in the very words of which notice has been given, or whether an amendment is not admissible. 52. In default of aay regulations as to voting (a) every member shall have one vote, and in default of any regulations as to Provision where no regulations . . • i i i as to meetings. Summoning general meetings a meeting shall be held to be duly (}) 1 Ch. 339, 347. (r) Cleve v. i\nanoial Corporation, Wil- liams V. Financial Corporation, 16 Eq. 363, and see s. 129, n. (s) Zawcs' Case, 1 D. M. & G. 421. (() Alexander v. Simpson, 43 Ch. Div. 139. (u) Brynnmwr Coal Co., W. N. 1877, 45. (x) florbury Bridge Co., 11 Ch. Div. 109 ; Pender v. Zushington, 6 Ch. D. 70 ; Barben V. Fhillips, 23 Ch. Div. 14. (y) Indian Zoedone Co., 26 Ch. Div. 70. (z) Henderson v. Bank of Australasia, 62 L. T. 869, and on App. 6 Times, L. R. 424. (a) The question arose in Patent Cocoa Fibre Co., W. N, 187G, 60, 132 ; 24 W. R. 483. THE COMPANIES ACT, 1862. 187 summoned of whicli seven days' notice (j3) in writing has been Sect. 53. served on every member in manner in which notices are required to be served by the table marked A. in the first schedule hereto (7), and in default of any regulations as to the persons to summon meetings five members shall be competent to summon the same, and in default of any regulations as to who is to be chairman of such meeting, it shall be competent for any person elected by the members present to preside (S). (o) Sch. I. Table A. (44)— (51). (y) Table A. (95)— (97). C0) Table A. (35). (S) Table A. (29)— 43). As to the services of notices of general meetings on members resident out Members of the jurisdiction : — " It seems to me that the Act has reference only to ™sident shareholders who can be reached by the ordinary English post " (J). But, * ^°^ ' quaere, on what ground can this be so ? As to the exercise of the power of voting see note to Table A., art. (44). Voting. " In default of any regulations " includes not only the case of there being " Regulations." no regulations at all, but also the case of there being regulations which have become inoperative. Thus where by the articles the power of calling meetings was given to the directors and to no one else, and there were no directors, this section became applicable (c). 53. A copy of any special resolution that is passed by any Registry of company under this Act shall be printed and forwarded to the sXtions!" Kegistrar of Joint Stock Companies, and be recorded by him : If such copy is not so forwarded within fifteen days from the date of the confirmation of the resolution, the company shall incur a penalty not exceeding two pounds for every day after the expira- tion of such fifteen days during which such copy is omitted to be forwarded, and every director and manager of the company who shall knowingly and wilfully authorize or permit such default shall incur the like penalty. Under s. 129 a company may go into voluntary liquidation either by a special or an extraordinary resolution. There is no provision in the Act for registering extraordinary resolutions. But the registrar does, it is believed, receive and register extraordinary resolutions, and they should be registered both because obviously the record at Somerset House of a company's exist- ence is otherwise incomplete, and also because the result is to relieve the company from subsequent demand by the oflSce for the yearly returns which the Act requires. A case has arisen in which the registrar, in ignorance of the voluntary winding-up, which was by extraordinary resolution, had struck the company off the register and dissolved it under sect. 7 of the Act of 1880, and appli- cation had to be made to restore it {d). 54. Where articles of association have been registered, a copy Copies of of every special resolution for the time being in force shall be so^'utions!' (6) Fer Malins, T.C., Union Hill Silver 140. Co., 22 L. T. 400. (d) Outlay Assurance Soc, 34 Ch. D. (c) Brick and Stone Co., W. N. 1878, 479. 188 THE COMPANIES ACT, 1862. Sect. 55. Execution of deeds abroaJ. Companies Seals Act. Examination of affairs of company by inspectors. annexed to or embodied in every copy of the articles of associa- tion that may be issued after the passing of such resolution : Where no articles of association have been registered, a copy of any special resolution shall be forwarded in print to any member requesting the same on payment of one shilling, or such less sum as the company may direct : And if any company makes default in complying with the provisions of this section it shall incur a penalty not exceeding one pound for each copy in respect of wliich such default is made ; and every director and manager of the company who shall knowingly and wilfully authorize or permit such default shall incur the like penalty. By the Companies Act, 1867, sect. 8, a copy of the special resolution there mentioned is to be annexed to every copy of the memorandum of association, and default is to be a default under this section. 55. Any company imder this Act may, by instrument in writing under its common seal, empower any person, either generally or in respect of any specified matters, as its attorney, to execute deeds on its behalf in any place not situate iu the United King- dom ; and every deed signed by such attorney, on behalf of the company, and under his seal, shall be binding on the company, and have the same effect as if it were under the common seal of the company. See also the Companies Seals Act, 1864, 27 & 28 Vict. c. 19, " An Act to enable Joint Stock Companies carrying on Business in Foreign Countries to have Official Seals to be used in such Countries." This section is not repealed or affected by that Act (see sect. 7 thereof). 56. The Board of Trade may appoint one or more competent inspectors to examine into the affairs of any company under this Act, and to report thereon, in such manner as the Board may direct, upon the applications following: (that is to say), (1.) In the case of a banking company that has a capital divided into shares, upon the application of members holding not less than one-third part of the whole shares of the company for the tiaie being issued : (2.) In the case of any other company that has a capital divided into shares, upon the application of members holding not less than one-fifth part of the whole shares of the com- pany for the time being issued : (3.) In the case of any company not having a capital divided into shares, upon the application of members being in number not less than one-fifth of the whole number of persons for the time being entered on the register of the company as members. THE COMPANIES ACT, 1862. 189 57. The application shall be supported by such evidence as the Sect. 57. Board of Trade may require for the purpose of shewing that the Application applicants have, good reason for requiring such investigation to ^?'' '"^Pf °' be made, and that they are not actuated by malicious motives in supporteii by instituting the same ; the Board of Trade may also require the ^^'' ^°°^' applicants to give security for payment of the costs of the inquiry before appointing any inspector or inspectors. 58. It shall be the duty of all officers and agents of the company Inspection of to produce for the examination of the inspectors all books and °° ^' documents in their custody or power : Any inspector may examine upon oath the officers and agents of the company in relation to its business, and may administer such oath accordingly : If any officer or agent refuses to produce any book or document hereby directed to be produced, or to answer any question relating to the affairs of the company, he shall incur a penalty not exceeding five pounds in respect of each offence. The inspection of the books of account by members is provided for by Table A. (78). 59. Upon the conclusion of the examination the inspectors shall Result of report their opinion to the Board of Trade : Such report shall be hoTdeait""' written or printed, as the Board of Trade directs : A copy shall ^^''''• be forwarded by the Board of Trade to the registered office of the company, and a further copy shall, at the request of the members upon whose application tlie inspection was made, be delivered to them or to any one or more of them : All expenses of and inci- dental to any such examination as aforesaid shall be defrayed by the members upon whose application the inspectors were appointed, unless the Board of Trade shall direct the same to be paid out of the assets of the company, which it is hereby authorized to do. 60. Any company under this Act may by special resolution (a) Power of appoint inspectors lor the purpose of examining into the affairs of appoin't^in-° the company. The inspectors so appointed shall have the same specters. powers and perform the same duties as inspectors appointed by the Board of Trade (j3), with this exception, that, instead of making their report to the Board of Trade, they shall make the same in such manner and to such persons as the company in general meeting directs ; and the officers and agents of the company shall incur the same penalties, in case of any refusal to produce any book or document hereby required to be produced to such inspectors, or to answer any question, as they would have incurred if sucli inspector had been appointed by the Board of Trade. (o) s. 51. (i8) S6. 56-59. ^ 190 THE COMPANIES ACT, 1862. Sect. 61. 61. A copy of tlie report of any inspectors appointed under this Act, authenticated by the seal of the company into whose affairs they have made inspection, shall be admissible in any legal proceeding as evidence of the opinion of the inspectors in relation to any matter contained in such report. Report of inspectors to be evidence. Service of notices on company. Rules as to notices by letter. Autlienti- cation of notices of company. Notices. 62. Any summons, 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 (o). (a) ». 39. A section corresponding to this is contained in sect. 135 of the Companies Clauses Act (8 & 9 Vict. c. 16), sect. 134 of the Land Clauses Act (8 & 9 Vict. c. 18), and sect. 138 of the Eailway Clauses Act (8 & 9 Vict. c. 20). Under Order IX. r. 8, a writ of summons may be served in manner here provided. The point discussed in White v. Zand and Water Co. (e) has thus become unimportant. A company whose registered office is in Scotland, but also carrying on business in England, cannot be served with a writ of summons in England (/). But a foreign corporation carrying on business in England is liable to be sued in an English court, and may be served in the same manner as an English corporation aggregate (g). This Act does not contain any sections similar to sects. 136, 137, 138, of the Companies Clauses Act as to service by the company on the shareholders, but regulations will be found in Table A. (95)-(97). As to the service of a winding-up petition, see Gen. Order, Nov. 1862, rule 3, infra ; as to service on contributories and creditors of the company. Ibid, rules 63, 64. 63. 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 that such document was properly directed, and that it was put as a prepaid letter into the post-office. 64. Any summons, notice, order, or proceeding requiring authentication by the company may be signed by any director, secretary, or other authorized officer of the company, aad need not be under the common seal of the company, and the same may be in writing or in print, or partly in writing and partly in print. In bankruptcy a corporation may prove a debt, vote, and otherwise act by an agent duly authorized under the seal of the corporation {h). (s) W. N. 1883, 174 ; and see To\me v. (cj) Haggin v. Comptoir d'Escompte, 23 Lmdon Steamship Co., 28 L. J. (C. P.) 217. Q. B. Div. 519. (/) Watkins V. Scottish Tnmmnce Co., (/i) Bankruptcy Act, 1883, s. 148. 23 Q. B. D. 285. THE COMPANIES ACT, 1862. 191 Sect. 65. Legal Proceedings. 65. All offences under this Act made punishable by any penalty Keooveiy of may be pTosecuted summarily 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 n & 12 Viot. 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 Convictions and Orders," or any Act amending the 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 17 & I8 Vict. reign of Her Majesty Queen Victoria, chapter one hundred and ''■ four, intituled "An Act to amend and consolidate the Acts relating to Merchant Shipping," or any Act amending the same, as regards offences in Scotland against that Act not being offences by that Act described as felonies or misdemeanours ; 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 14 & 15 Vict. Majesty Queen Victoria, chapter ninety-three, intituled " An Act "' ®^" to consolidate and amend the Acts regulating the Proceedings of Petty Sessions and the Duties of Justices of the Peace out of Quarter Sessions in Ireland," or any Act amending the same. 66. The justices or sheriff imposing any penalty under this Application 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. Every company under this Act shall cause minutes of all Evidence of resolutions and proceedings of general meetings (a) of the company, at meetings. and of the directors or managers of the company in cases where there are directors or managers, to be duly entered in books (j3) to be from time to time provided for the purpose : and any such minute as aforesaid, if purporting to be signed by the chairman of the meeting at which such resolutions were passed or pro- ceedings had, or by the chairman of the next succeeding meeting, shall be received as evidence in all legal proceedings ; and until the contrary is proved, every general meeting of the company 192 THE COMPANIES ACT, 1862. Sect. 67. Minute as evideuce. Statute of Frauds. Invalid ap- pointment of directors, &c. 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 by such directors, managers, or liquidators shall be valid, notwithstanding any defect that may afterwards be discovered in their appointments or qualifications (y). (o) Sch. I. Table A. (29)— (43). (/3) s. 154. (y) Table A. (55) -(71). Where the articles provided that a mitiute signed by any person purporting to be the chairman of any meeting of directors should be receivable in evidence without any further proof, and an entry in the minute book stated that a certain number of shares had been subscribed for, including 100 by the chairman-, who signed the minute, not at the next meeting, but after winding-up proceedings were commenced (i), it was held that the minute vias prima facie evidence against all who were present, and that, as it was not proved to be false, the chairman was liable as a contributory for 100 shares (/c). But a director who was not present at the meeting at which the reso- lution was passed, and who denied all knowledge of it, was held not bound by the insertion of his name for fifty shares (J). The signature of the minutes by the chairman of the following meeting may be sufficient, even when not so expressly provided (m). The signature of the chairman in the minute book to a resolution adopting an agreement may be sufficient to satisfy the Statute of Frauds (n). Endangering accuracy for the sake of brevity, it may perhaps be said that the effect of the last sentence of this section and of the similar provision frequently found in articles of association is that, as between the company and persons having no notice to the contrary, directors, &c., de facto are as good as directors, &c., de jure. Outsiders are bound to know what Lord Hatherley has called the " external position of the company " (o) : but they are not bound to know its " indoor management." If, therefore, persons are held out, so to speak, as directors, if they act as directors, and the shareholders do not take any steps to prevent them from doing so, outsiders are entitled to assume that they are directors, and, as between the company and such outsiders, the acts of such directors de facto will bind the company (p). Therefore bankers who received from the company's office a formal notice signed by the " secretary " that they were to pay cheques signed by " either two of the following three directors," and who paid cheques accordingly, were discharged, although no directors or secretary had ever been ap- pointed {p). In this case it was vainly argued that the clause applied only (i) Cf. Laivdowiiers Co. v. Ashford, IG Ch. r>. 411, 426, 429-4:12. (A) JS. p. Sir a P. lionet/, 4 D. J. & S. 226 ; 4 N. R. 83, 389 ; 12 W. R. 815, 994 ; 10 h. T. 394, 770. (0 TothiU's axse, 1 Ch. 85. (m) Southampton Dook Co. v. Rioha.ds, 1 Man. & Gr. 448; Sheffield Railway Co. V. Woodcock, 7 M, & W. 574; Bough, 3 Q. B. 845. (?») Jones V. Victoria Graving Dock Co., 2 Q. B. D. 314. (o) Mahomj v. East Holy ford Mining Co., L. R. 7 H. L. 869, 893. (p) Mahony v. East Holy ford Mining Co., h. K. 7 H. L. 869. THE COMPANIES ACT, 1862. 193 wtere ttere had been an appointment though invalid, and did not apply Sect. 68. where there was no appointment at all. And as against the director himself the section may render his acts as director valid (j). If the absence of notice to the contrary be rightly taken to be of the essence of the question, it follows, as has been held, that while the saving clause applies to acts done before the invalidity of the appointment is shewn (r), yet when a defect has been discovered in the appointment or qualification of a director, manager, or liquidator, it does not give validity to his subsequent proceedings (s). There is little difficulty in distinguishing from cases of this kind those authorities which shew that in making calls (0. in forfeiting shares (u), and in like matters of internal administration, acts done by persons purporting to act as directors but who are not such in fact are not binding on the share- holders. Those are cases in which a company is seeking to enforce against a member duties purporting to be imposed upon him by persons to whom he and his co-shareholders have never delegated the authority of imposing such duties. As to the meaning of " manager " see Qibson v. Barton (x). The minutes " Manager." were there used as evidence. 68. In the case of companies under this Act, and engaged in jurisdiction working mines within and subject to the jurisdiction of the J^XV'^' Stannaries, the Court of the Vice- Warden of the Stannaries shall Stannaries. 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 unincorporated com- panies, but only so far as such jurisdiction or powers are consistent with the provisions of this Act and with the constitution of com- panies 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 cognizance, all process issuing out of the same, and all orders, rules, demands, notices, warrants, and summonses required or authorized 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 (cj) York Tramways Co. v. Willows, 8 (f) Howbeach Goal Co. v. Teague, 5 H. Q. B. Div. 685. & N. 151. Doubted in York Tramways Co. (r) Eallows t. Femie, 3 Ch. 467, 473 ; t. Willows, 8 Q. B. Div. 685. But see and see Murray v. Bush, L. R. 6 H. L. at London and Southern Counties Land Co., pp. 53, 69, 80 ; Newhaven Local Board v. 31 Ch. D. 223. Newhaven School Board, W. N. 1885, 157. («) Garden Gully Co. v. McLister, 1 App. (s) Bridport Old Brewery Co., 2 Ch. Cas. 39. 191 ; ffarben ,. Phillips, 23 Ch. Div. 14, (x) L. R. 10 Q. B. 329. 27, 34. 194 THE COMPANIES ACT, 1862. Sect. 69. 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 in 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 order of the Court shall be entitled to the same privilege of selling by auction or competition without a license, 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. 69. Where a limited company is plaintiff or pursuer in any action, suit, or other legal proceeding, any judge having jurisdic- tion in the matter may, if it appears by any credible testimony (a) that there is reason to believe 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, and may stay all proceedings until such security is given. Provision as to costs in actions brought by certain limited companies. Security, when re- quired in a cross-suit. (a) 20 & 21 Vict, c. 14-, o. 24, stood, " if it be proved to his satisfaction," v. note, infra. Where a company is plaintiff in a cross-suit, or what is virtually a cross- suit, it is not a "plaintiff or pursuer" within the meaning of this section, and will not be required to give security for costs ; the principle upon which the Court acts in respect of security for costs (and which is not altered by this section), being that a party who is really a defendant, though nominally a plaintiff, is not to be hampered in his defence. And, therefore, where a company was plaintiff in a suit to set aside a policy on which the defendant in the suit had already brought against the company an action at law, which was still pending, the Court refused to order the company to give security (y). But where A. filed a bill against B., the registered holder of shares in a company, and against the company and their secretary, for specific per- formance of an alleged contract by B. to transfer the shares to A., and for an injunction to restrain the company from transferring them to any person other than A. ; and the company thereupon filed a bill against A. and B., praying for declarations that the alleged contract was fraudulent and void, and that A. and B. were trustees for the company ; the company were required to find security for costs, for their bill was not a mere cross-bill, but asked for the performance of an entirely different agreement (z). So where the I. Society filed a bill against the M. Company to foreclose a mortgage ; and, by the leave of the Court, in the winding-up of the M. Company a bill was filed in the name of the M. Company against the I. Society seeking (i/) Accidental and Marine Insurance Co. V. Mercati, 3 Eq. 200. (2) Washoe Mining Co. 2 Eq. 371. V. Fergiison, THE COMPANIES ACT, 1862. 195 to impeach the security, or, in the alternative, to redeem on a different footing Sect. 69. from that on which the I. Society sought to foreclose, it was held that the ' bill was not a mere cross-bill, and that the M. Company must give security for costs (a). Semble, where a bill is filed in the name of a [guvere limited] company Security, which is being wound up, security for costs must always be given whether ■"''*■' ''°°'' the bill be a purely cross-bill or not (J). Uq'Ja.ktion. Prima facie, the very fact of being in liquidation supplies "reason to believe," unless evidence is given to the contrary (c). The foregoing must, it is conceived, be taken to apply only to a limited Unlimited company, for an unlimited company is not within the section. It was held company. at law that an unlimited company, although in liquidation and sworn to be insolvent, could not be made to give security (d). Where an order to wind up a limited company has been made and the Company's order is appealed by the company itself without any one else being made *PP^^^ """^ responsible for costs, the Court of Appeal will entertain an application for order, security (e). Under the new practice the old rule as to waiver of right to security by Waiver of taking a step in the cause is gone (/), and under Order LXV.r. 6, the discretion "g'^' t° as to security may be unlimited. secun y. But under the old practice a defendant did not waive his right to security by filing his answer under compulsion from expiration of time, before he was in possession of the facts requisite to shew that " the assets of the company will be insufiBcient " {g). And even if the action had gone on for a considerable time, yet if the plaintiffs amended so as to raise a new case which would add substantially to the costs, the defendant might then obtain security (c). The security must be " sufilcient." The general rule of the Court which Amount o£ under the old practice QC) limited the amount to £100 did not apply; the iS8™"'y- security given was for an amount equal to the probable amount of costs payable (i). (It was held under the 20 & 21 Vict. c. 14, s. 24, the wording of which was, with the exception noted above, identically the same, that a bond for £100 was sufBcient security (h). This must be taken to be overruled.) The Court may direct security to be given for the costs up to a certain stage in the proceedings, and then allow the application to be renewed (T). Under the 20 and 21 Vict. c. 14, s. 24, which differed from this section only Evidence of as noted above, it was held that an aflldavit by the defendant's agent to the insufficiency effect stated in the section was, if unanswered, a sufBcient ground for requiring security for costs (m). (a) Moscow Gas Co. r. International (g) Washoe Mining Co. t. Ferguson, 2 Financial Society, 7 Ch. 225. Eq. 371. (&) Moscow Gas Co. y. International (A) Tlie amount is now in the discretion Financial Society, 7 Ch. 225 ; Freehold of the judge. Order LXV. r. 6. Land Co. v. Spargo, W. N. 1868, 94, is (i) Imperial Bank of China, India, and another case of company in liquidation. Japan y. Sank of Hindustan, China, and (c) Northampton Coal Co. y. Midland Japan, 1 Ch. 437 ; Freehold Zand Go. y. Wagon Co., 7 Ch. Div. 500 ; Pure Spirit Co. Spargo, W. N. 1868, 94. V. Fowler, 25 Q. B. D. 235. (k) Australian Steamship Co. v. Fleming, (d) United Ports Co. v. Sill, L. R. 5 4 K. & J. 407. Q. B. 395. ■ Western of Canada Oil Co. v. Walker, (e) Diamond Fuel Co., 13 Ch. Div. 400, 10 Ch. 628, 412 ; Photographic Artists Association, 23 (m) Official liquidators of Southampton, Ch. Div. 370. ^c, Steamboat Co. v. Rawlins, 2 N. E. 544 ; (/) Mariano y. Mann, 14 Ch. Div. 419 ; 11 W. R. 978; 9 Jur. (N.S.) 887, where Lydney Co. v. Bird, 23 Ch. D. 358. Caillaud's Tanning Co. y. Caillaud, 26 Beav. o2 196 THE COMPANIES ACT, 1862. Sect. 70. Undertaking on injunction. Decliiration in action against members. Board of Trade may alter forms in schedule. Where an injunction is granted on the application ex parte of a limited company, the Court will require the undertaking of some responsible person as to damages, the undertaking of the company is not sufficient (ra). 70. In any action or suit brought by the company against any member to recover any call or other moneys (a) 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 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 hatli accrued to the company. (a) See Peninsular Co. v. Fleming, 27 L. T. 93. Where a transfer has been made and registered after a call has been made, but before it is payable, it is not easy to say whether the transferor or the transferee is the person liable (o). It is evident that this section creates a difficulty in making the transferor liable, for he is no longer a member. The Companies Clauses Act (j9) provides that it shall be sufficient "to declare that the defendant is the holder," &c., and to prove " that the defen- dant at the time of making such call was a holder," &c., and the Stannaries Act, 1869 (q), that it shall be sufficient to state that the defendant " was at the time of such call being made the holder," &c. Upon the Companies Clauses Act (p) it has been held that by declaring that " the defendant is the holder," is meant that he was the holder at the time the call was made (r), and, quaere, whether this Act is not to receive a similar construction. Alteration of Forms. 71. 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 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 aiiect any company registered prior to the date of such alteration, or repeal, as respects such company, any portion of such table. 427, was commented on and doubted as reported, (n) Anqlo-Danuhian, ^c, Co. v. Sogerson, 10 Jur. (N.S.) 87; 3 N. R. 185. Quwre Pacific Steam Navigation Co, v. Oibbs, 14 W. K. 218; 13 L. T. 431. (o) Sec Table A. (4), note. (p) 8 & 9 Vict. c. 16, ss. 26, 27; see sect. 16. (?) 32 & 33 Vict. c. 19, s. 13. See sect. 14, " all calls made." (r) Belfast Bailway Co. v. Strange, 5 Rail. Cas. 548 : 1 Ex. 739. THE COMPANIES ACT, 1862. 197 Arbitrations. ^^°^- '^^- 72. Any company under this Act may from time to time, by Power for writing under its common seal, agree to refer and may refer to ar- to refer bitration, in accordance with " The Eailway Companies Arbitration ™a"ers to ■' -^ . arbitration. Act, 1859 ' (a), any existing or future difference, question, or other matter whatsoever in dispute between itself and any other company or person, and the companies parties to the arbitration may dele- gate 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. (o) 22 & 23 Vict. c. 59. 73. All the provisions of " The Railway Companies Arbitration Provisions of Act, 1859," shall be deemed to apply to arbitrations between ^ "59^ ^.g apply. companies and persons in pursuance of this Act ; and in the con- struction of such provisions " the companies " shall be deemed to include companies authorized by this Act to refer disputes to arbitration. PAET IV. Winding up of Companies and Associations under this Act (a). Preliminary. 74. The term " contributory " shall mean every person liable to Meaning of contribute to the assets of a company under this Act, in the event '"'° " " °^^' of the same being wound up (3). It shall also, in all proceedings for determining the persons who are ') There is the authority of a case in the European Arbitration for saying that the liability for costs is not provable even when the bankruptcy is subsequent to the winding-up, infra, note (I). THE COMPANIES ACT, 1862. 203 If the bankruptcy be subsequent to the winding-up, then (i.) semhle not- Sect. 75. withstanding sect. 153 of this Act the trustee can disclaim (k): but (ii.) on the authorities above noticed, the company may prove for calls and liabiUty to future calls. As respects costs of winding-up it would seem that if the bankruptcy and discharge have taken place in the interval between the pre- sentation of the winding-up petition and the order, the liability to the costs is incapable of valuation, and therefore in respect of these the bankrupt is not discharged (0- If under the Act of 1869, liability to future calls is provable by the company in a bankruptcy antecedent to the winding-up, then it would seem to follow that any right of indemnity on the part of a transferor is provable also against a transferee. Where the dates ran : — (1) bankruptcy of A., (2) winding-up, (3) liquida- tion of B., (4) disclaimer by trustee of A. and trustee of B., and no call was made between events (2) and (3), it was held that neither A. nor B. nor either trustee could be put on the A. list of contributories, but that the liquidator must prove in the bankruptcy and liquidation for the injury sustained. For as regards A. his shares were by the disclaimer forfeited as of the date of event (1), and there was therefore no liability as a present member on these shares; and as regards B. at the date of event (3) when the shares were by the disclaimer forfeited, there was no call due — if there had been such a call, then, semhle, B.'s trustee [or guxre rather B. himself (m)] would have been put on the list in respect of that (m). By sect. 101 and the decision in OrisseU's Oase (o), the rule in Chancery in Bankruptcy — the winding up of a limited company is, that no set-off is allowed as between Set-ofif. the liquidator and the persons who have to pay calls. But in the case of a bankrupt contributory, the ordinary jurisdiction of the Court of Chancery not extending into bankruptcy, the rules of the Court of Bankruptcy will apply. The 95th section of this Act, by providing that Sect. 95. the oflBcial liquidator may " prove . . . and draw a dividend in the matter of the bankruptcy ... of any contributory, for any balance against the estate of such contributory," is a very strong indication that this Act meant to adopt the Bankruptcy Acts, for it is in the Court of Bankruptcy that the balance must be ascertained. And, therefore, if a contributory, who is also a creditor of a company in liquidation, becomes bankrupt, or executes a deed which takes the place of a bankruptcy, after the commencement of the winding-up, the debt must be set off against the calls, whether the claim be made in the bankruptcy (p) or in the winding-up (q). And if the contributory have before his bankruptcy but after the com- mencement of the winding-up, assigned his debt to a third party (g), or if the assignment have been made after the bankruptcy, but be not for valu- able consideration (as where bills were indorsed after the bankruptcy to an agent for collection (r) ), the assignee will stand in the same position as the contributory would have done in respect of set-off. (A) West of England Sank, E.p. Roberts, (o) 1 Ch. 528 ; et v. s. 101. 12 Ch. D. 288; and see Zevi v. Ayers, 3 (p) In re Duckworth, 2 Ch. 578; E.p. App. Cas. 842. Cooper, 15 L. T. 637. (0 Davies' Case (Eur. Arb.), L. T. 80 ; (q) E. p. Strang, 5 Ch. 492 ; and see 17 Sol. J. 670 ; and see Brown's Case (Eur. E. p. Morton, 17 W. R. 606 ; 38 L. J. (Ch.) Arb.), Reil. 32 ; L. T. 21 ; 17 Sol. J. 310. 390. (m) See Cape Breton Co., 19 Ch. Dir. 77. (r) CarralU and Haggard's Claim, 4 Ch. (») West of England Bank, E.p. Bidden 174. and JRoherts, 12 Ch. D. 288. 204 THE COMPANIES ACT, 1862. Sect. 76. Contributories in case of death. Liability of deceased mem- ber's estate. Distribution of assets : — 76. If any contributory dies either before or after he has been placed on the list of contributories hereinafter mentioned (a), his personal representatives, heirs, and devisees shall be liable in a due course of administration to contribute to the assets of the company in discharge of the liability of such deceased contribu- tory, and such personal representatives, heirs, and devisees shall be deemed to be contributories accordingly (/3). (o) s. 98. ((3) ss. 99, 105. The liability of a contributory is by sect. 75 a specialty debt, debitum in prcesenti, solvendum in futuro (s), and may bo enforced, so long as the shares are left standing in the deceased member's name, or in that of his executors, as executors merely, both against his personal estate and against his real estate in the hands of devisees (t). If the personal representatives make default in payment of calls made upon them, the personal and real estates of the deceased member may be administered (u). The heirs and devisees need not necessarily be placed on the list of contributories as well as the personal representatives, but may be added when the Court thinks fit (a;). Upon the death of a member, and until his shares are personally accepted, transferred, or in some way disposed of by his executors, the deceased member, that is, his estate, remains a member, and his representatives are on the one hand entitled to the benefits accruing upon, and on the other are in their representative capacity, but not necessarily personally (y), liable for calls in respect of his shares (z). Whether, therefore, the shareholder die after the commencement of the winding-up, and either before or after he has been placed on the list of contributories (a), or whether he have died many years before the winding- up, but his shares have not been either personally accepted (6), or otherwise disposed of (c) by his executors, the liability of his estate is the same, and is that which would have been the liability of the shareholder if living. Executors then should be careful, before proceeding to distribute their testator's estate among the beneficiaries, to see that they have provided for the contingent liability in respect of such shares as they have not disposed of, for otherwise they may become personally liable. Thus executors who had paid a legacy without providing for the con- tingent liability on shares in a company which was a going concern at their testator's death (d), were ordered personally to pay the amount of the legacy in satisfaction of calls, the estate being insufficient (e). In such a case the rule that executors cannot recover from a legatee a payment made with notice of a debt does not apply to prevent them from obtaining such indemnity as they can from the testator's estate, and the executors will be entitled to call upon the residuary legatees to refund, for the purpose of indemnifying them, the capital sums paid to them, but not any intermediate income (/). (s) He Muggeridgc, 10 Eq. 443, 446. (J.) Turquand v. Kirby, 4 Eq. 123 ; ffa- mer's Devisee's Case, 2 D. M. & G, 366. (u) s. 105. Ix) s. 99. (y) Buohan's Case, 4 App. Cas. 549. (z) See note to Table A. art. (12). (a) s. 76. (b) V. supra, p. 77. (c) V. infra, Table A. art. (12). (d) In some cases it may be unnecessary to make any provision. Tate v. Soils, W. N. 1880, 159. (c) Taylor v. Taylor, 10 Eq. 477. ( / ) Jervis v. Wolferstan, 18 Eq. 18. THE COMPANIES ACT, 1862. 205 Executors, moreover, cannot protect themselves or their testator's estate Sect. 76. (except as regards assets already paid away) from the claim of the company or its liquidator merely by publishing advertisements and distributing the f "jI^L^ui,' "' assets under Sir G. Turner's Act (g) or Lord St. Leonards' Act (h). tection. Thus where the executrix of a testator, who had been settled on the list of contributories in his lifetime, advertised for claims against the estate, and the official liquidator sent in no claim, she was nevertheless more than a year afterwards placed as executrix on the list of contributories (i). So where the executors of a shareholder, who died many years before the winding-up, had distributed the assets of their testator under Sir G. Turner's Act, without making provision for the contingent liability on his shares, they were put on the list of contributories, with a view to proceedings being taken for the administration of the testator's estate ; but with a note to the effect that they alleged they had distributed the assets under the provisions of the Act 13 & M Vict. c. 35 (k). EusselVs Executors' Case (I) was a similar case, where the assets had been distributed under Lord St. Leonards' Act, and the executors never knew that their testator was possessed of the shares. Executors are not, however, entitled to any indemnity against liability in Shares spe- respect of shares specifically bequeathed, and which have been transferred cifically under the order of the Court in an administration suit; the order is a ^''"^^ '^ ' perfect indemnity to them (to). Under the earlier Winding-up Acts it was said that a call was not dehitum Payment of in prcesenii, solvendum in futuro, and it was therefore held that executors debts. were not liable for a devastavit in having paid even simple contract debts before a call was made {n), nor were they entitled as against simple contract creditors to set aside a part of the estate to provide for future calls (o). And as respects debts or liabilities not being of a lower nature than the call, it appears that the same rule holds good under this Act, and if the executor pays creditors entitled to claim before the call is made, his position is good (jp). The liability of the shareholder's estate is however under this Act a contingent liability in respect of which the liquidator of the company may claim to have a sum set apart to answer future calls ; and, therefore, where the estate of a deceased shareholder was the subject of an administration suit, the liquidator of the company was held entitled to prove against the estate for the estimated value of such liability, although no call had actually been made in the winding-up, and to have a proportionate share of the fund set apart to meet it (?). The cases last referred to were all previous to the Act (r), by which specialty debts are deprived of their right of priority of payment. In cases, therefore, falling within that Act it is conceived that, on the principle of Lady Salt's Case (s), executors will not be liable for a devastavit for paying debts, whether simple contract or by specialty, before a call is made, or before claim, as in In re Muggeridge (j), by the liquidator for the amount of the estimated liability. (g) 13 & 14 Vict. i;. 35. (o) Wentworth v. dieveU, 3 Jur. (N.S.) (A) 22 & 23 Vict. u. 35, s. 29. 805. (i) MarkweU's Case, W. N. 1872, 210. (p) Lady Salt's Case (Eur. Arb.), L. T. (i) Cole's Executors' Case (Alb. Arb.), 106. 15 Sol. J. 711. (}) In re Muggeridge, Muggeridge v. (0 (Alb. Arb.), 15 Sol. J. 790. Sharp, 10 Eq. 443. (m) Addams v. Ferick, 26 Bear. 384. (r) 32 & 33 Vict. c. 46. (n) Henderson r. Gilchrist, 17 Jur. 570. (s) (Eur. Arb.), L. T. 106. 206 THE COMPANIES ACT, 1862. Sect. 77. Executors, when made contributories in respect of their testator's shares, -; are liable of course only in their representative character, and not personally. Liability of re- ^Qiggg ^jjey have personally accepted the shares {t), or except so far as they have made themselves liable for a devastavit (m). Joint tenants When two or more persons are registered as joint holders of a share they of shares. are joint tenants so far as the legal interest is concerned, and the legal title survives. And in the absence of anything to the contrary in the articles, the covenant into which they are by sect. 16 to be taken to have entered will be taken to be a joint and not a joint and several covenant. Upon the death of one, therefore, his liability will cease (aj). The case referred to arose under the Act of 1856, and liability as a present member was the only question discussed. Shares in an unregistered company stood in the names of K. and J. K. died, but the names of his executors were not put on the register. In the winding-up it was held that K. and J. having been joint tenants, with benefit of survivorship as to the beneficial interest, and not tenants in common, K. was, under his several covenant for himself, his heirs, executors* and administrators, to perform all the obligations attaching to the shares, liable only in respect of such obligations as attached up to the time of his death, and his executors were therefore placed on the list in their repre- sentative capacity in respect of such obligations only (y). Contributories 77. If any contributory becomes bankrupt, either before or after bankruptcy ^® ^^^ ^^^"^ placed on the list of contributories, his assignees shall be deemed to represent such bankrupt 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 oi 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 liability to contribute to the assets of the company being wound up (a) ; 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. (o) See s. 75. QucBve, whether under the Banki-uptcy Act, 1861, and the Acts of 1869 and 1883, this section is, as respects calls made subsequent to the commencement of the bankruptcy, applicable only to the case of a contributory becoming bankrupt subsequent to the commencement of the winding-up. See notes to sect. 75. An argument has been drawn from the last clause of the section, which provides that, for the purposes of the section, a person who became insolvent before the 11th of October, 1861, shall be deemed to have become bankrupt, to shew that as this Act was not passed until 1862, the section must apply to previous bankruptcies, for otherwise this clause would be unmeaning. («) Supra, p. 77. Buchan's Case, 4 App. (y) Kirby's Executors' Case (Alb. Arb.), Cns. 549. 15 Sol. J. 922; Reil. 67; and see Alex- in) Taylor v. Taylor, 10 Eq. 477. ander's Case, 15 Sol. J. 788. (0!) Hill's Case, 20 Eq, 585. THE COMPANIES ACT, 1862. 207 With respect to this, Giffard, L.J., said in Eastie's Case (z), the section Sect. 78. " would be applicable if the assignees chose to take the shares ; it would be applicable to such calls as were made before the bankruptcy, as, for instance, if the directors called up the whole or part of the capital, and their calls were not met ; again, it would be applicable if, for any reasons or under any circumstances, the calls, or any of them, were capable of Taluation at the date of the bankruptcy;" but, qtccere, whether in some of the cases here put, the assignees could "be deemed to represent such bankrupt for all the purposes of the winding-up." The assignees are to be " deemed to be contributories," but, semhle, they should not be put on the list, the bankrupt's name should be left on the list (a). 78. If any female contributory marries, either before or after Contributories she has been placed on the list of contributories, her husband maniao^e. shall during the continuance of the marriage be liable to con- tribute to the assets of the company the same sum as she would have been liable to contribute if she had not married, and he shall be deemed to be a contributory accordingly. The result of this section and sect. 75 is, that where a female shareholder Husband's marries and the company is afterwards wound up, the husband is to be liability, treated as having become, at the date of the marriage, a debtor, and not merely the husband of a debtor, in respect of the liability on the shares. In the winding-up, therefore, he is himself a contributory without any limit, such as provided by the Married Women's Property Acts as to a husband's liability in respect of debts of the wife contracted before marriage (V). In the argument of this case, the point, so far as the report shews, seems to have been missed, that the section runs, "If any female contributory marries," and, therefore, ^rima/acie, and upon the analogous decisions under sect. 75, applies only to the case where the female is a contributory when she marries, that is to say, where the winding-up precedes the marriage. Where a married woman, having separate estate, contracted to take shares Separate in her own name in a banking company formed under the 7 Geo. 4, c. 46, estate of which was subsequently wound up, the Court, being of opinion that such ™^™ contract was entered into on the credit of her separate estate, placed her on the list of contributories in her own right (c). The authorities on the liability of the husband of a female shareholder who marries will be found collected, supra, p. 78. A married woman cannot be settled on the list in the absence of her husband (d). The above cases must be taken of course as referable to the law as to married women as existing at the date of their decision. Winding-v/p hy Court. 79. A company under this Act may be wound up by the Court Circumstances as hereinafter defined (a), under the following circumstances ; company may (that is to say,) ^« ^°»^^d up (») 4 Ch. 274, 278. 12 Ch. D. 284. (a) Cape Breton Co., 19 Ch. Dir. 77. (o) Mrs. Matthewman's Case, 3 Eq. 781. (6) West of England Bank, E. p. Hatcher, (d) Lang's Case, 4 App. Cas. 547. 208 THE COMPANIES ACT, 1862. Sect. 79. Bankruptcy Court. contribu- toet's Petition. Petitioner's interest very small. Petitioner's case not satisfactor\-. Carriage of order given to share- holder other than peti- tioner. ; (1.) Wlienever the company has passed a special resolution (j3) requiring the company to be wound up by the Court : (2.) Whenever the company does not commence its business within a year from its incorporation, or suspends its business for the space of a whole year : (3.) Whenever the members are reduced in number to less than seven (y) : (4.) Wheueyer the company is unable to pay its debts : (5.) Whenever the Court is of opinion that it is just and equit- able that the company should be wound up. Up) (o) s. 81. But now see Comp. (W, Act, 1890, s. 1. (;8) =. 51. (7) s. 48. An unregistered company- must consist of more than seven members to be wound up under the Act, s. 199. As to winding-up under the supervision of the Court, see sect. 147. As to the winding up of a subsidiary company in the case of amalgamated life assurance companies, see Life Assurance Companies Act, 1872, s. 4, infra. A registered company cannot (e) be made bankrupt (/), but after a winding-up order has been made, the subsequent proceedings might under this Act have been had in the Local Court of Bankruptcy (ff). As to who may petition, see sect. 82, infra. It is not imperative on the Court to issue a winding-up order (K) ; and at any rate, if the application is made by a shareholder the Court ought to exercise a judicial discretion («). It will not in the case of a limited company make a winding-up order on the petition of a shareholder whose interest and liability are very small against the wish of the bulk of the share- holders. The case of an unlimited company is open to other considerations (k). Where the Court was satisfied that the petition was presented in bad faith, it dismissed the petition (I). The Winding-up Acts are not to be used for the purpose of settling con- troverted points between individual shareholders and the company (m). By sect. 91 the Court may have regard to the wishes of the creditors and contributories — and when a shareholder comes for a winding-up order it is the duty of the Court to see whether the other shareholders and the creditors agree in thinking that the winding-up is the best course. And if there be a strong opposition on their part the Court will not grant a winding-up order unless it sees that some plain injustice is being done to the members who present the petition, which cannot be avoided otherwise than by giving them a winding-up order (m). Where a shareholder, having presented a petition for a winding-up order, (e) Although sembU an unincorporated company or its members can : Bankruptcy Act, 1883, s. 123. (/) Bankruptcy Act, 1883, ». 123. (<;) Infra, s. 81. (/i) European Life Assurance Society, 9 Eq. 122, 126 ; and see ss. 86, 91, 149 ; and -B. p. Wise, 1 Drew. 465, under the Act of 1848. («') Planet Benefit Society, 14 Eq. 441, 450 ; Middteshorough Assembly Booms Co.,14 Ch. Div. 104, and cases post. (k) London Suburban Bank, 6 Ch. 641 ; 19 W. R. 600, 763. As to an unlimited company, see Norwiah Tarn Co., 12 Beav. 366 ; Mectric Telegraph of Ireland Co., 22 Beav. 471 ; Professional, ^c. Building Society, 6 Ch. 856. (0 Metropolitan Saloon Omnibus Co., E. p. Hawkins, 28 L. J. (Ch.) 830 ; 5 Jur. (N.S.) 922. (m) Wheal Lovell Mining Co., E. p. Wyld, 1 Mac. & G. 1. (n) Professional, ^c. Building Society, 6 Ch. 856 ; City and County Bank, 10 Ch. 470 ; and see London Permanent Benefit Building Society, 17 W. R. 513, 717: 20 L. T. 388 : 21 L. T. 8. THE COMPANIES ACT, 1862. 209 asked at the hearing that the petition might stand OTsr to enable the company Sect. 79. to pass resolutions to wind up voluntarily, the Court, being of opinion that the case required investigation, made a compulsory order, giving the carriage of it to another shareholder who appeared to support the petition (o). Again, where the number of shareholders is very small, and there are no Number of diflculties in the way of a voluntary winding-up, the Court will in its shareholders discretion refuse to make an order on a shareholder's petition (p). But in a ^^'^ ^™^ proper case, as where the proceedings of the directors were very irregular, and there appeared to be an absence of land fide intention on their part to carry on business in a proper manner (q), and where there were matters to be investigated, and there was overwhelming influence on the part of one director (r), an order will be made although the number of shareholders be very small, and an order has been made to wind up a company where there were only seven shareholders and no debts (s). As to the rights of a fully paid-up shareholder as a petitioner, see sect. 82, Fully paid-up infra. shareholder. But where a creditor who cannot obtain payment of his debt comes for a Ceeditor's winding-up order, the Court must, ex debito JusHHcb, make it, if he brings his Petition. case within the Act (t) : unless the case be within exceptions which the Court has established to the general rule (u). " It is not a discretionary matter with the Court, when a debt is estab- lished and not satisfied, to say whether the company shall be wound up or not ; that is to say, if there be a valid debt established, valid both at law and in equity. One does not like to say positively that no case could occur in which it would be right to refuse it, but ordinarily speaking, it is the duty of the Court to direct a winding-up " (x). But ex dehito Justitice applies only as between the creditor and the company. If a majority of creditors are of a different opinion to the petitioning creditor, the Court is bound, under sects. 91, 149, to have regard to their wishes, and may accordingly make a supervision order instead of a compulsory order («/), or, if the company be already in voluntary liquidation (a), or even if it be not in liquidation at all (u), may refuse to make any order if a majority of creditors so desire. But if the company is not in voluntary liquidation, it is conceived that (subject to the discretion of the Court to direct the petition to stand over where there is a better prospect of payment if that course is taken (a), or where there is nothing to wind up (b), or to refuse an order in exceptional oases (m) ) the Court cannot refuse an order to a creditor who makes out his case, though all the world be against him. For the creditor -is entitled to payment, and a winding-up order is really a substitute for judgment in an action. (o) Berlin Great Market and Abattoirs Ch. D. 372, 383 ; Chapel Souse Collieri/ Co., ] 9 W. E. 793 ; 24 L. T. 773. Co., 24 Ch. Div. 249 ; New York Exchange, (p) Natal, #0., Co., 1 H. & M. 639 ; Sea 39 Ch. Div. 415. and Biver Marine Insurance Co., 2 Eq. 545 ; (a;) Per Lord Cranworth, Bowes v. The and see E.'p. Wise, 1 Drew. 465; E. p. Hope, 4-c., Society, 11 H. L. C. 389; Inderwick, 3 De G. & Sm. 231. General Co. for Promotion of Land Credit, (?) London and County Coal Co., 3 Eij. 5 Ch. 363, 380, affirmed 5 H. L. 176. 355. {y) West Hartlepool Co., 10 Ch. 618. (/•) West Surrey Tanninj Co., 2 Eq. \z) Langley Mill Co., 12 Eq. 26. 737. (a) Brighton Hotel Co., 6 Eq. 339; (s) Sanderson's Patents Association, 1 2 Western of Canada Oil Co., 17 Eq. 1 ; Eq. 188. Great Western Coal Co., 21 Ch. D. 769. (t) London Suburban Bank, 6 Ch. 641, (6) St. Thomas' Bock Co., 2 Ch. D. 643 ; Western of Canada Oil Co., 17 Eq. 1. 116. («) Uruguay Central Railway Co., 11 210 THE COMPANIES ACT, 1862. Sect. 79. In In re Borne Assurance Association (c), where the company only, and not other creditors, opposed, Wickens, V.C., said that an unsatisfied judg- ment creditor was entitled to the usual compulsory order, and refused to accede to an application that the drawing-up of the order might be post- poned for a fortnight, to give the association an opportunity of settling the debts upon the proceeds of a call which had been made upon the share- holders. And where a company was de facto unable to pay its debts at the time when two petitions, the one by a shareholder, and the other by an execution creditor, were presented for a winding-up order, an order was made on both petitions, although they were opposed by a majority of shareholders, and it was alleged on the part of the company that it would be able to meet its engagements so soon as a call which had been made on the shareholders, and which was payable in two months, had been paid up {d). It seems to have been held in In re Q-eneral Boiling Stock Co. (e) that where it is admitted that the company must be wound up, and the only question is whether a voluntary or a compulsory winding-up is the more desirable, a creditor is entitled on his petition to a compulsory order, although other creditors oppose it, and support a voluntary winding-up. From the report of the case, however, it does not appear that there were not many creditors supporting the compulsory order. But even as between a creditor and the company, ex debito justitioe does not apply to such an extent as to compel the Court to make an immediate order. The Court may, under sects. 86, 91, order the petition to stand over to give the company an opportunity of arranging for payment of its debts, and, when there is reasonable hope of an arrangement being made, will make such order (/), and may make a supervision instead of a compulsory order even if the voluntary winding-up was resolved upon after the petition was presented (^r). And again, it is only ex debito justitioe that the creditor should have his order if there is some chance of his getting paid by means of it. If there are no assets that a winding-up order can reach (as when all the assets are already charged in favour of debenture-holders in excess of their value), and other creditors oppose, an immediate order may be refused Qi). If there are no assets, an order may be refused (i), and generally the Court will not make a compulsory order if it is satisfied that such an order will do no good {g). In Olathe Silver Alining Co. (k) Pearson, J., made an order which may often be useful in these cases. His Lordship was not satisfied that the com- pany had not assets outside those included in the debenture-holder's security. Under these circumstances he directed an inquiry upon the point, and referred it to chambers to appoint a provisional liquidator with all the powers of an official liquidator, but directed him to take no steps beyond taking possession without the direction of the judge — the petition to stand over until the inquiry was answered. And where the creditor was a debenture-holder whose interest was in arrear, and who was entitled to payment only pari passu with the other (c) 12 Eq. 112. (7i) St. Thomas' Dock Co., 2 Ch. D. 116. (d) International Contract Co., E. p. The form of the undertaking required from Spartali and Tabor, 14- L. T. 726. the company in this case should be noted (a) 34 Beav. 3U ; 13 \V. R. 423. It is often useful. (/) Brighton Hotel Co., 6 Eq. 339; (»') Free Fishermen of Faversham, 36 Western of Canada Oil Co., 17 Eq. 1. Ch. Div. 329. ((/) Neio York Exchange, 39 Ch. Div. (4) 27 Ch. D. 278. 415. THE COMPANIES ACT, 1862. 211 debenture-holders, and was therefore entitled to sue only on behalf of him- Sect. 79. self and all other like creditors, and his holding of £600 was opposed by holders of £142,700, a winding-up order was refused altogether (I). Inas- much as unsecured creditors of course rank pari passu, the decision is, it is conceived, applicable generally (m). And where the petitioner was a secured creditor who alleged his security to be insufScient, and the majority of the creditors opposed and assigned good reason for their opposition, the Court refused to make an order, and directed the petition to stand over for six months, or until the petitioner should take steps to enforce his security (n). Again, where a resolution for voluntary liquidation had been passed and a majority of creditors desired a voluntary winding-up, and the Court was satisfied that that would be the better course, a creditor's petition for a compulsory order was dismissed — and, after the presentation of the petition, an offer having been made to the petitioner which, in the opinion of the Court, was reasonable and ought to have been accepted by him, but which he rejected, the order was to pay him his costs only up to the time when such offer was made (o). The above observations as to the right of a creditor to an order are addressed to the case of an outside creditor, and are not equally applicable to a creditor who is a creditor only in the capacity of a member, as for instance a member of a benefit building society who has given notice of withdrawal (p). If the liquidators in a voluntary winding-up offer to hold themselves personally liable for a disputed debt, and offer to set aside out of the assets Disputed debt. a sum sufficient to satisfy the claim, if established, with interest and costs, a petition for a compulsory order will be ordered to stand over till the claim has been estabhshed in an action, and the petitioner will be ordered to pay all costs incurred since the offer (q). A winding-up petition is not a legitimate method for a creditor to adopt in order to obtain payment of a debt which is bond fide disputed by the company ; and any attempts so to enforce payment will be discouraged by the Court (r). It is obvious that great damage might be done to a perfectly solvent com- pany by the presentation of a winding-up petition by an unreasonable creditor, whose debt the company are able and willing to pay if established but to whom they hand fide believe they are not indebted. In such a case, on writ issued by the company, an injunction will be granted to restrain the creditor from presenting a petition (s). If the petition has been presented the Court may on motion stay all proceedings under it or dismiss it (i). (!) Uruguay Central Bailway Co., 11 14L. T. 582; 12 Jur. (N.S.) 465 ; 5ri P^X- petition incurred since the offer was refused (h). The order made on a winding-up petition is of course subject to appeal in Appeal, the usual manner; but if the ground of appeal be that the order is bad because founded on a debt which does not bind the company, the application should be made by motion to discharge the order (i). Where, however, the* ground of appeal was that the association being illegal for want of registra- tion could not be wound up under the Act, the winding-up order was dis- charged on appeal from the order (k). The company by its directors may appeal from the order notwithstanding that a liquidator has been appointed (I) ; but in such a case if there be no one joined so as to be personally responsible for costs, an application for security for costs will be entertained (I). It is conceived that any creditor or contributory may appeal although he be not petitioner. Thus where the petitioner was satisfied with a supervision order which had been made, the order was discharged upon the appeal of shareholders other than the petitioner (m). The Appeal Court refuses to hear creditors or contributories appearing to support an appeal, although creditors are allowed to appear and oppose a (a) European BanUng Co., E. p. Baylis, (g) Imperial Guardian Society, 9 Eq. 4i7 ; 2 Eq. 521. and see Some Assurance Association, 12 (5) Universal Non-Tariff Co., W. N. Eq. 59. 1875, 54; and see Forbes' Claim, 19 Eq. (A) See also supra, p. 227. 485. (i) E. p. Williamson, 5 Ch. 309. (c) Audley Hall Cotton Spinning Co., (k) Padstow Association, 20 Ch. Div. 6 Eq. 245. 137. (d) General Exchange Banh, 4 Eq. 138. (t) Diamond Fitel Co., 13 Ch. Div. 400. (e) Marlborough Cliib Co., E. p. Perdval, (m) Silkstone Fall Colliery Co., 1 Ch. 6 Eq. 519. Div. 38. (/) Times Ufe, #c., Co., 9 Eq. 382. 252 THE COMPANIES ACT, 1862. Sect. 86. Costs. Application to vary or discharge order. petitioner's appeal and if successful will get their costs (n). And costs have been given to shareholders who appeared below but were not served with the. appeal (o). If upon appeal the petition be dismissed, any proceedings taken under the order will be discharged {p). Where the company nominally, but in fact the directors, appealed against a winding-up order, and the petition of appeal was dismissed, it was not merely dismissed with costs, for the effect would have been to give the directors their costs out of the assets, but the order was that the respondent should have his costs out of the assets, no order as to the costs of the appellants (?). Directors may be restrained by injunction from paying out of the company's assets costs which they have in fact incurred in opposition to the company (r). Under the old practice if an order had been irregularly or improperly obtained, an application to vary or discharge it might be made to the judge by whom it was made. Thus where an order had been obtained upon a petition which concealed material facts (s), and where a supervision order had been made upon a voluntary winding-up which turned out to be invalid (t), the order was discharged upon motion. If, however, by reason of delay in making the application, costs had been incurred under the order, the Court would not discharge it unless the applicant would undertake to pay those costs (m). The Court has no jurisdiction to order payment out of the assets of costs incurred under a winding-up order which is afterwards discharged as void (x). Qucere, whether a petitioner who has improperly obtained an order upon a petition concealing material facts can, upon its being discharged, be made to pay costs incurred by contributories under it (y). The application to vary or discharge must, if made on the merits, have been the subject of a regular re-hearing, even though all parties consented to a different course. Where the petition had been dismissed, and the company were afterwards ready to consent to an order, the Court refused to make it except upon a petition of re-hearing (z). The application might be made by motion with notice (m). And where an irregular order (viz., a supervision order upon an invalid voluntary winding-up) was discharged, and a fresh order (viz., a compulsory order) made, fresh advertisements of the petition were not required on service and consent of all parties entitled to be served (a). As to superseding a supervision order by a compulsory order, see infra, 8. 152, note. Under the procedure introduced by the Judicature Act a judge cannot re-hear an order made by himself or another judge : the power to re-hear is part of the appellate jurisdiction transferred to the Court of Appeal (i). (u) Clarie's Case, 1 K. & J. 22. (k) Plumstead Water Co., E. p. Harding, 11 W. R. 99; 8 Jur. (N.S.) 1140; 7 L. T. 550 ; 32 L. J. (Ch.) 145 ; 1 N. R. 40. (!/) E. p. Bamett, 1 De G. & Sm. 744. (z) North Wales Slate Supply Co., 18 W. R. 403; 21 L. T. 818. (a) Patent Floor Cloth Co., 8 Eq. 664. So in Shields Marine Insurance Co., W. N. 1867, 296. (6) St. Nazaire Co., 12 Ch. Div. 88. (n) New Gas Co., 5 Ch. Div. 703. (o) New Callao Co., 22 Ch. Div. 484, 494. Ip) E.p. Williamson, 5 Ch. 309. (q) National Savings Bank Association, 1 Ch. 547 ; Diamond Fuel Co., 13 Ch. Div. 400. (r) Smith v. Duke of Manchester, 24 Ch. I). 611. (s) E. p. Bamett, 1 De G. & Sm. 744 ; of. Clarke's Case, 1 K. & J. 22. (0 Patent Floor Cloth Co., 8 Kq. 664. THE COMPANIES ACT, 1862. 253 But if tte order has not been passed and entered, the judge may deal with Sect. 86. his own order (c). Two companies cannot, for convenience' sake, because their affairs are Two com- mucb mixed up together, be included in one winding-up order, though panies cannot separate lists of contributories be made out for each company (d). j^ ^^^ winding- But by the Life Assurance Companies Act, 1872 (35 & 36 Vict. c. 41), s. 4, up order. II. infra, in the case of amalgamated life assurance companies, where the Life Assurance "principal" company is being wound up, the Court shall order the "sub- Companies sidiary " company to be wound up in conjunction with the " principal " ^''^' ^^'''^' company, and make provision with a view to such companies being wound up as if they were one company, subject as therein mentioned. And where any subsidiary company and principal company are being wound up by different branches of the Court, the Court to which appeals from such branches lie shall make an order directing in which branch the winding-up shall be carried on. Where there were in different branches of the Court two concurrent Two petitions petitions for winding-up, and the one which had been presented last came !° ditoent on for hearing first, an application that it might be transferred to the other jjjg Coupt. branch of the Court to be heard with the petition first presented was refused, and an order made on the petition last presented. Subsequently the petition first presented was transferred to the Court in which the order was made, and at the hearing the petitioner was allowed his costs (e). If a first petition is improperly intercepted by a collusive second petition, it is conceived that the right course is for the first petitioner to procure his petition to be transferred to the judge who has made the order, and apply for the carriage of it (/). Where a petition was pending in one branch of the Court, and a pro- visional liquidator had been appointed, but the petitioner had failed to prosecute the petition, a winding-up order was granted in the interim on another petition in another branch of the Court (^r). When petitions are presented in different branches of the Court the regular Transfer, course is to transfer to that branch of the Court to which the first petition is attached (h). If an order is made in one branch of the Court, a petitioner whose petition is pending elsewhere may, by appearing when the order is made, succeed in procuring the order to be made on both petitions, upon his undertaking to transfer to that branch. But this could only be done by consent, for the judge has not the petition before him. If this is not done he must transfer his petition to that branch, and bring it on there for hearing (i). Where several petitions are presented under circumstances which justify Several their presentation, as where the later petitioners were in ignorance of the petitions. prior petitions (k), and where the first petition was or might be collusive (I), the practice is to make one order on all the petitions, and then the usual rules as to costs apply. Where there were two petitions, the one by a paid-up shareholder, the (c) Crmm Bank, 44 Ch. D. 634, 648. (A) West Hartlepool Co., 10 Cli. 629. Id) Shields Marine Association, E. p. Lee (»') See Marron Bank Co., 38 L. T. 140 : and Moore, 16 W. R. 69 ; 17 L. T. 308 ; W. N. 1878, 12. W. N. 1867, 265, 296. (k) Owen's Patent Wheel Co., 29 L. T. (e) British and Foreign Gas, ^c, Co., 672; 22 W. E. 151; London and Austra- 13 W. E. 649 ; 12 L. T. 368 ; 11 Jur. lian Agency Corporation, 29 L. T. 417 ; 22 (N.S.) 559. W. E. 45. (/) Cf. in bankruptcy, E. p. Mason, (T) United Service Co., 7 Eq. 76; and 14 Oil. Mv. 71. see Hurriber Ironworks Co., 2 Eq. 15 ; Com- (g) Consolidated Bank, 14 L. T. 656. meroial discount Co., 32 Beav. 198. 254 THE COMPANIES ACT, 1862. Sect. 87. other by shareholders who had paid only the deposit, one order was made — on both petitions, and the conduct of the winding-up given to the paid-up shareholder (m). Where a first petition after being advertised and coming on for hearing stood over sine die, and six months afterwards a creditor in ignorance of its existence presented another petition, he was allowed his costs (n). A second petitioner is entitled to his costs down to the time when he first becomes aware of the first petition (o). But a second petition, if unnecessary on account of an earlier petition having been presented, will be dismissed with costs (p) ; and further, each of several petitions will be looked at separately on its own merits ; and if an order would not have been made upon it, dealing with it as the only petition presented, it will equally be dismissed with costs, whether objectionable as a second petition or not (j). 87. When an order has been made for winding up a company under this Act no suit, action, or other proceeding shall be pro- ceeded with or commenced against the company except with the leave of the Court, and subject to such terms as the Court may impose (a). (o) ss. 163, 198, 202. This section has been already, in a great measure, discussed under sect. 85 ; and it will there be seen that, notwithstanding sect. 163, the Court may in its discretion allow a creditor to proceed to levy execution, notwithstanding that the company is being wound up. After a winding-up order has been made, however, any further proceedings are to be absolutely put a stop to, until leave has been obtained from the Court. And therefore, where a winding-up order was made and an ofScial liquidator appointed, and on the same day a writ of Ji. fia. was issued by a judgment creditor, on which execution was levied two days afterwards when the official liquidator was in possession, further proceedings were, on the application of the ofScial liquidator, restrained by the Court as a matter of course, for the Act gives no option. It was impossible for the judgment creditor to proceed except by leave obtained from the Court, on an application of which notice had been given (r). Before the Judicature Act it was held at law that the omission to obtain leave to proceed with an action could not be taken advantage of by plea to the further maintenance of the action : but must be the subject of an appli- cation to the Court in which the winding-up was proceeding (s). By Order XLIX. E. 5, " When an order has been made by any judge of the Chancery Division for the winding up of any company, or for the administration of the assets of any testator or intestate, the judge in whose Actions and suits to be stayed after order for winding-up. Effect of section. Leave not obtained. Transfer of actions. (m) Constantinople and Alexandria Hotel Co., 13 W. R. 851. (n) See Marron Bank Co., 38 L. T. 140 ; W. N. 1878, 12. (o) General Financial Banlt, 20 Ch. Div. 276. {p) Joint Stock Coal Co., 8 Eq. 146; Accidental and Marine Insurance Co., E. p. liasch, 36 L. J. (Ch.) 75 ; 15 L. T. 173 | Empire Assurance Corporation, 16 L. T. 341 ; and see supra, pp. 227, 228. (2) European Banking Co., E. p. Baylis, 2 Eq. 521. (r) Waterloo Life, ^c. Insurance Co., 81 Beav. 689 ; 11 W. K. 159. (s) Gray v. Baper, L. R. 1 C. P. 694 ; Graham v. Edge, 20 Q. B. D. 538, 683 ; and see Henderson v. Peruvian Railway Co., 16 L. T. 297 i Jones v. Yates, 3 Y. & J. 373 ; Piercy t. Hoberts, 1 M. & K. 4 ; Lee V. Sangster, 2 C. B. (N.S.) 1. THE COMPANIES ACT, 1862. 255 Court such winding-up or administration shall be pending shall have power Sect. 87. without any further consent to order the transfer to such judge of any cause or matter pending in any other Court or Division brought or continued by or against such company, or by or against the executors or administrators of the testator or intestate whose assets are being so administered as the case may be." The motion for transfer may be made ecc parte (t). This rule is an amendment of the former rule. Under the old rule (Order LI. E. 2a) a judge who had made an order on one petition could not transfer to his own branch of the Court another petition pending elsewhere, for a petition was not an " action " («) ; neither could he transfer an action from another judge of the Chancery Division (x). Under the present Rule he can do both. Sects. 87 and 163 apply only to the Courts in this country, for Parliament Suit in foreign never legislates respecting strictly foreign Courts, and is not to be considered '^''uutry. to be legislating respecting colonial or Indian Courts, unless they are expressly mentioned («/), and therefore a suit may be brought against a company in liquidation, in, for instance, an Indian Court, without leave first obtained, although, if cause were shewn to the Indian Court why the suit should be stayed, it would entertain the application, and do what was just and right to assist the English Court in winding up the company (z). But this is not so as regards Scotland and Ireland. The Act relates to the whole of the United Kingdom, and over proceedings taken anywhere within the United Kingdom the legislature has the power of giving the Court jurisdiction. The words " suit, action, or other ,'proceeding " are general, and are to be limited only of necessity in cases where the Court from want of power could not enforce its order if made. By sect. 122, an English order can be enforced in Scotland or Ireland. In the case, therefore, of a company being wound up in England, the English Court can and will restrain pro- ceedings in Ireland (a) or Scotland (V). And semble, a proceeding against the company in respect of property in a Property in foreign country is within the Act. The fact that the property is out of the ii foreign jurisdiction does not prevent the application of the Act (c). country. When a company has in this country been ordered to be wound up, judgment creditors who are in this country and have proved under the winding-up will not be allowed to attach property in India belonging to the company (d). The Court has jurisdiction to restrain a British subject from taking pro- ceedings in a foreign Court (e). Leave will be given to proceed with an action against third parties, to which Action -.— the company is a necessary party (/), the plaintiff undertaking not to enforce ^.gamst com- against the company any judgment he may obtain, without the leave of the l^°J^ p° j.j . Court : — e.g., where the biU was filed against a company and a third party for (<) Landore Siemens Steel Co., 10 Ch. Co., Ramsay's Case, 36 Ch. D. 502 ; Thurso D. 489 ; Field v. Field, W. N. 1877, 98 ; New Gas Co., 42 Ch. D. 486 ; Queensland Whitaher v. Sobinson, W. N. 1877, 201. Merc. Co., W. N. 1888, 62. (u) National Funds Co., 25 W. R. 23. (c) South Eastern of Portugal Railway , (») Madras Irrigation Co., 16 Ch. D. 702. Co., 17 W. E. 982. (i/) Per Mellish, L.J., E. p. Scinde Rail- (d) Oriental Inland Steam Co., E. p. way Co., 9 Ch. 557, 560. Scinde Railway Co., 9 Ch. 557 ; 30 L. T. («) Bank of Hindustan r. Premchand, 317 ; 31 L. T. 5 ; 22 W. E. 622, 810. 5 Bomb. H. C. Eep. 83. (e) North Carolina Estate Co., W. N. (a) International Pulp Co., 3 Ch. D. 594. 1889, 53. (6) Middlesborough Firebrick Co., W. N. (/) Cf. in bankruptcy, E. p. Smith, Se 1885, 7 ; 52 L. T. 98 ; Hermann Loog f Collie, 2 Ch. Div. 51. closure ; 256 THE COMPANIES ACT, 1862. Sect. 87. ^^ account of promotion money alleged to have been receiTed by him from '- '— the company ( .1 i-, .• expedient, direct meetings (p) oi the creditors or contributories to be summoned, held, and conducted in such manner as the Court directs for the purpose of ascertaining their wishes, and may (1/) Bristol Victoria Pottery Co., W. N. (b) Patent Autotmtic Knittina Co 1872, 85. W. N. 1882, 97. '' («) FAiropean Assuratice Society, W. N. (c) Steamship Titian Co., W. N. 1888 1872, 85, affirmed on appeal. 17; Schanschieff Electric Siind W n' (a) Cf. in bankruptcy, E. p. Carr, W. N. 1888, 166. j < ■ ■ 1886, 187. TEE COMPANIES ACT, 1862. 261 appoint a person to act as chairman of any such meeting, and to Sect. 91. 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 company (y). (o) See Comp. (W. Up) Act, 1890, s. 13. Comp. (W. Up) Act, 1890, ss. 6, 23. (;3) Gen. Order, Nov. 1862, Rules 45-47. (7) s. 149. This section is not confined to questions arising after the winding-up order has been made, nor to the manner in which, or the terms upon which an order shall be made, but it is equally applicable before making a winding-up order, when the petition is before the Court (d). It gives the Court complete discretion to refuse an order (e), or to direct the petition to stand over (/) upon terms (g), and to exercise its discretion with reference to all the surrounding circumstances. The effect which will be given to the wishes of creditors and contributories has already been considered in several places under the several sections to which the particular matters in question referred. It may be convenient to collect here some of the cases in respect of winding-up petitions which have been already discussed under sect. 79. Shaeeholdbrs' Petitions. Oedee made against wish of majority of shareholders ; matters requiring investigation; overwhelming influence on the part of one shareholder; resolution for voluntary winding-up passed but not confirmed Qi). „ company de facto unable to pay its debts — two petitions presented, one by shareholder the other by execution creditor (i). „ assets and management very unsatisfactory; in default of a resolution for voluntary winding-up, compulsory order to be made (k). „ no profit for the last four years; substratum of company gone (I). company had no assets and no debts, had not in four years commenced business, majority would not consent to volun- tary winding-up (m). It appears that the order in this case was never drawn up or acted upon, and in a similar case. Bacon, V.C, dismissed the petition (ra). „ at wish of majority of shareholders {in value) ; „ although opposed by a minority, and company very small (0). (d) Western of Canada Oil Co., 17 Eq. 1. (j) Ex parte Spartali and Tabor, 14 (e) LangUy Mill Co., 12 Eq. 26 ; Planet L. T. 726. Benejit Building Society, 14 Eq. 441, 450 ; (k) British Oil and Cannel Co., 15 Uruguay Central Railway Co., 11 Ch. D. L. T. 601. 372, 383 ; Chapel Mouse Colliery Co., 24 (I) Great Northern Copper Mining Co., Ch. DiT. 259 ; et v. supra, pp. 210, 211. 17 W. R. 462 ; 20 L. T. 264. {f) Brighton Hotel Co., 6 Eq. 339; (m) Twmacacori Mining Co.,\TS,a. h^i. Western of Canada Oil Co., 17 Eq. 1. (n) New Gas Generator Co., 4 Ch. D. (g) St. Thomas' Dock Co., 2 Ch. D. 116. 874. (A) West Surrey Tanning Co., 2 Eq. 737. (0) In re Sanderson's Patent, 12 Eq. 188. 262 THE COMPANIES ACT, 1862. Sect. 91. Petition to stand ovbe: A shareholder's petition may no doubt be ordered to* stand over, but, in an unlimited company at least (p), the considerations stated in Elecirio Telegraph Co. of Ireland (j) are not without weight, viz., that if the shareholder shew his sight to an order the Court will consider whether, by ordering the petition to stand over, his liabilities will not be increased. „ at wish of majority of policy-holders ; „ Mutual Life Assurance Society: majority desired reduction of contracts under Life Assurance Companies Act, 1870, s. 22; petition ordered to stand over till meeting of policy-holders held (r). Oedee ebfused at wish of majority of shareholders ; „ as between shareholders the Act creates by sect. 129 a domestic tribunal to whom is intrusted the power of determining on the liquidation of the company. The Court will not readily withdraw the decision of the question from them (s). „ company had suspended business for more than a year owing to the depression of trade and with the approval of the great majority of the shareholders : there was no inability to carry on the business and no intention to abandon the undertaking : one-eighth against four-fifths desired a wind- ing-up (0- " the Court will not in general interfere where a hond flde resolution has been passed for a voluntary winding- up (u) ; e.g. (i.) petition presented by shareholders who were also creditors (x). (ii.) petition presented by the only dissentient share- holder {y). (iii.) petition presented by a fully paid-up share- holder (z). (iv.) petition presented by the only dissentient share- holder suggesting irregularities but not plainly alleging fraud (a), (v.) Semhle : the fraud alleged must be fraud in obtaining the resolution for voluntary liquidation : fraudulent transactions in the promotion of the company are not sufficient (6). if in such a case an order is made, the Court will in- cline rather to a supervision than to a compulsory order (c). ip) See supra, p. 208 (*). (i/) Union Bill Silver Co., 22 L. T. 400. (j) 22 Beav. 471. («) Irrigation Co. of France, Ex parte (r) Great Britain Mutual Society, 16 Fox, 6 Ch. 176. Ch. Div. 246. i ; - (a) Petersburg Gas Co., 33 L. T. 637. (s) Zangham Skating Sink Co., 5 Ch. (6) Sir John Moore Mining Co., W. N. Div. 669; Gold Co., 11 Ch. Div. 701,710; 1877, 183; Gold Co., 11 Ch. Div. 701; Middlesborough Assembly Sooms, 14 Ch. Div. Haven Gold Mining Co., 20 Ch. Div. 151 ; 104. but see Northutnierlami Banking Co., 2 De («) Middlesborotigh Assembly Booms, 14 G. & J. 357, 378, Ch. Div. 104. (c) General International Agency Co., («) See ss. 147, 149. 36 Beav. 1 ; 13 W. K. 363 ; 34 L. J. (Ch.) (x) Madras Coffee Co., 17 W. E. 643.J 337. THE COMPANIES ACT, 1862. 263 Obdbb eefused at wish of majority of shareholders — continued. Sect. 91. „ the Court will even allow the petition to stand over, to consider the question of voluntary winding-up : — thus : where a majority of shareholders and almost all the creditors desired a voluntary winding-up, under which a firm would take over the company's assets and pay the debts, the Appeal Court discharged a compulsory order, and directed the petition to stand over with liberty to call a meeting (d). meeting directed to be held ; resolution passed to con- tinue business (e). „ petitioner's interest and liability very small (/). „ although business not actively commenced in two years and a half(sr). Cbeditoks' Petitions. The wishes of a majority of creditors will be first considered whether a company shall be wound up compulsorily or voluntarily (h), or in exceptional cases whether it shall be wound up at all (i). As between himself and other creditors, a creditor is not entitled ex debito justitice to a compulsory order (k). Obdeb eeecsbd at wish of majority of creditors ; „ resolution for voluntary winding-up having been passed (I). voluntary winding-up in progress, and nothing to shew that creditor was in any way prejudiced (to). „ no voluntary winding-up in progress : creditor a debenture- holder whose interest was in arrear entitled pari passu with others: held £600 against £142,700 who opposed: nothing to be gained by winding-up order («.). Petition to stand oveb at wish of large majority of shareholders ; „ there being a reasonable hope of an arrangement being made to carry on the company (o). the same indulgence refused (^). „ at wish of majority of debenture-holders ; „ there being reason to believe that the debts would be paid (2). „ the assets being already charged to their full value, so that there was nothing to be got under a winding-up order (r). „ at wish of majority of creditors ; petitioners were secured creditors who alleged that their security was insuflacient: the majority of the creditors (d) City and County Bank, 10 Ch. 470. 769 ; Chapel House Colliery Co., 24 Ch. (e) Great Northern Copper Mining Co., Div. 259. 14 W. E. 705. (0 Langley Mill, ^c., Co., 12 Eq. 26 ; (/) London Surburban Bank, 6 Ch. 641. of. Rorbury Bridge Co., W. N. 1879, 61. Professional, 4'C., Society, 6 Ch. 856. (m) Universal Drug Supply Association, (g) Petersburg Gas Co., W. N. 1874, W. N. 1874, 125. 196. (n) Uruguay Central Bailviay Co., 11 (A) Oriental Commercial Bank, 14 L. T. Ch. D. 372; cf. Chapel House Colliery Co., 755 ; 15 L. T. 8 ; Lonsdale Yale Ironstone 24 Ch. Div. 259. Co., 16 W. E. 60]. ' (0) Brightm'Hotel Co., 6 Eq. 339. (0 Uruguay Central Railway Co., 11 (p) Home Assurance Association, 12 .'S'<1. Ch. D. 372 ; and see ante, s. 79, note. 112. (k) West Hartlepool Co., 10 Ch. 618 ; (j) Western of Canada Oil Co., 17 Eq. 1. Uruguay Central Bailway Co., 11 Ch. D. (r) St. Thomas' Dock Co., 2 Ch. D. 116. 372; Great Western Coal Co., 21 Ch. D. 264 THE COMPANIES ACT, 1862. Sect. 92. Company clearly insolvent. Meeting. Petition to stand ovee at wish of large majority of shareholders — continued, opposed, and assigned good reason for their opposition: the petition was ordered to stand oyer instead of being dis- missed really for the protection of the other creditors, so that in case the petitioners took steps to enforce their security it could be brought on again (s). Oedbe made against the wish of the company and some creditors ; „ but there is nothing in the report to shew that there was not a majority of creditors in favour of the order (t). „ against wish of company ; voluntary winding-up had been going on for more than a year, but no dividend paid— petitioner was a single creditor but to the amount of three-fourths of the debts (u). „ suspicions of fraud : at request of company petitioner allowed petition to stand over, and afterwards discovered that com- pany had executed bill of sale of its effects to one of the directors (x). Oedee made against wish of majority of debenture-holders ; „ the petition had by order stood over for three months, and nothing had been done {y). See further sects. 145, 147, 149. If a company is clearly insolvent, the assets belong to the creditors rather than to the members, and the creditors are therefore entitled to have the control of the business ; and as it is only through the medium of a winding- up that they can have such control, an order will in such a case be made on their petition (z). Where the Court has no power to make a winding-up order, it has no power to direct a meeting to be held (a). It may direct a meeting to consider in what way the company shall be wound up (6), but if a case is not made for winding-up it cannot direct a meeting to consider whether the company would like to be wound up or not (c). Appointment of official liquidator. Official Liquidators, 92. 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 or official liquidators (a) ; and the Court having jurisdiction may appoint such person or persons, either provisionally (/3) or other- wise, as it thinks fit, to the office of official liquidator or official liquidators ; in all cases if more persons than one are appointed to the office of official liquidator, the Court shall declare whether any act hereby required or authorized to be done by the official (s) Great Western Coal Co., 21 Cli. D. 769. (0 General Rolling Stock Co., 34 Beav. 314; 13 W. R. 423. («) Mancliester Queensland Cotton Co., 15 W. R. 1070; 16 L, T. 583. (a) London and Provincial Starch Co., E. p. Adams, 16 L. T. 474. (!/) Western of Canada Oil Co., 17 Eq. 1. (z) Isle of Wight Ferry Co., 2 H. & M. 597 ; Lonsdale Vale Ironstone Co., 16 W. R. 601. (a) Joint Stock Coal Co., 8 Eq. 146. (6) City and County Sank, 10 Ch. 470 ; West Hartlepool Co., Ibid. 618. (c) Langham Skating Sink Co., 5 Ch. Div. 669. THE COMPANIES ACT, 1862. 265 liquidator is to be done by all or any one or more of such persons. Sect. 92. The Court may also determine whether any and what security (y) is to he given hy any official liquidator on his appointment (8) ; if no official liquidator is appointed, or during any yacancy in such appointment, all the property of the company shall be deemed to be in the custody of the Court. (o) Gen. Ord. Nov. 1862, Rules 8-19 ; (W. Up) Act, 1890, s. 4 (3). and, see ss. 133, 150-152. (8) The words in italics are repealed by iff) s. 85. Comp. (W. Up) Act, 1890, s. 4. Comp. (W. Up) Act, 1890. (7) Gen. Ord. Nov. 1862, Rule 10 ; Comp. The earlier part of this section is not repealed or altered by the Comp. Liquidator. (W. Up) Act, 1890 (except as to the title " official," s. 4 (31), but the whole scheme of appointment is in fact affected by that Act. On the ■winding-up order being made the official receiver (sect. 4) becomes ipso facto proYisional liquidator, and continues such until he or another person becomes liquidator. Any person other than the official receiver who is appointed liquidator is styled "liquidator," not "ofllcial liquidator." The official receiver is to call meetings (sect. 6), to determine whether or not application is to be made to the Court to appoint a liquidator in the place of the official receiver, and the Court may make any appointment or order required to give effect to such determination. It seems to be assumed that the Court will not use its power under sect. 92 of this Act except for the purpose of sect. 6 of that Act. The liquidator (other than the official receiver) cannot act as liquidator until he has notified his appointment to the registrar of joint-stock companies and given security to the satisfaction of the Board of Trade (Comp. (W. Up) Act, 1890, sect. 4 (3) ). Where there are several liquidators there is jurisdiction to give the conduct Conduct of of any particular matter to one of them id). maUers ^' TheofficialliquidatormightbeforetheComp.W. Up Act, 1890, be appointed at the hearing of the petition (e) ; but he was not so appointed except by at^the"hearine consent (/) ; and the settled practice was in aU cases to direct a reference to chambers (^). For if the appointment were ever made at the hearing, every creditor or contributory would have to appear to see that the matter was referred to chambers, or that a proper appointment was made. A provisional liquidator may be appointed at any time after petition pre- Provisional sented and before the first appointment of liquidators Qi). If a provisional appointment. liquidator had been appointed before the winding-up order he was before the Comp. W. Up Act, 1890, commonly continued until liquidators were appointed after advertisement, &c. (i). But a provisional liquidator might be ap- pointed after the order, and for a limited purpose, e.g., to receive and give a discharge for costs ordered to be paid to the company {h). It is desirable that liquidators should be disinterested persons. As a Who should be general rule the appointment of a shareholder would be improper Q). appointed. id) Midland Land Corporation, W. N. Rule 8. 1887, 58. ig) General Financial Bank, 20 Ch. Div. (e) London, BoTnbay, and Mediterranean 276. Bank, 1 Ch. 525 ; Sautli Kensington Stores, (A) s. 85, where see notes, p. 246. W. N. 1880, 199. (i) Gen. Order, Nov. 1862, E. 8, et seq. if) Commercial Discount Co., 32 Beav. ik) Langham Skating Rink Co., 6 Ch. 198; 11 W. R. 353; 1 N. R. 416; and D. 102. see Minima Organ Co., 11 W. R. 530; 8 (0 Northumberland and Bwham District L. T. 109; and Gen. Order, Nov. 1862, Banking Co., 2 De G. & J. 508. As to the 266 THE COMPANIES ACT, 1862. Sect. 92. Court of Appeal will not interfere in the ap- pointment ; except upon a question of principle. Receiver. Wishes of creditors, &o. The secretary of the company, being cognisant of its affairs, is a proper person to be appointed (m) : but where there are matters requiring investi- gation an independent liquidator will be taken. The Court of Appeal will not, except on a question of principle, interfere to disturb the appointment when a judge has, in the exercise of his discretion, appointed a liquidator. If since the appointment new facts had been dis- covered which shewed that the primary judge was deceived, and that he had made an improper appointment, application ought before the Judicature Act to have been made to Mm to reconsider the case (m). It may now in such a case be necessary to go to the Court of Appeal (o). But where in the appointment is involved a question of principle, an appeal from the appointment of the judge will be entertained. Thus, in the analogous case of appointment of receiver, where a liquidator had been appointed in a winding-up under supervision, and subsequently an equitable mortgagee of property of the company filed a bill to enforce his security, and obtained an order for a receiver, and the judge appointed a person, other than the liquidator, to be receiver, the appointment was, on appeal, discharged, and the liquidator appointed, there being no personal objection to the liquidator ( p). Where the winding-up is compulsory or under supervision, it is considered unreasonable that there should be two persons, each of them responsible to the Court, appointed, the one as liquidator and the other as receiver, and the practice seems to be to appoint the liquidator receiver, or allow him to act as receiver, even though a receiver has been appointed before the appointment of liquidator (y). This practice is adopted by the Comp. (W. Up) Act, 1890, for sect. 4 (6) provides that the ofScial receiver may be appointed receiver for debenture- holders or other creditors. But a mere voluntary liquidator will not necessarily be receiver, and special circumstances as to the preservation of the property would no doubt always be taken into consideration (r). Moreover, if the question is not whether a receiver appointed by the Court at the instance of mortgagees and a liquidator appointed by the Court shall be the same persons or different persons, but whether a receiver appointed by mortgagees for themselves under a power in their security shall or not have possession, the considerations are entirely different. If a mortgagee has power to appoint and does appoint his own receiver, he is entitled to possession by that receiver, and with the appointment of the person the Court has nothing to do. In such a case, therefore, the Court would under proper safeguards direct the liquidator to give possession to the mortgagees' receiver (s). By sect. 91, in a compulsory winding-up, and by sect. 149 in a winding-up appointment where a supervision order is superseded by a compulsory order, see s.l52, (m) London and Australian Agency Cor- poration, 29 L. T. 417 ; 22 W. R. 45. (n) International Contract Co., 1 Ch. 523, where a creditor, and London, Bombay, ij-c, Bank, 1 Ch. 525, where two directors had been appointed; and see Railway Finance Co., 14 W. R. 956 ; London Quays and Warehouses Co., 3 Ch. 394; Cookes v. Cookes, 2 D. J. & S. 526 ; Merchant Traders Co., 15 Jur. 981 ; and cases next cited. (o) St. Nazaire Co., 12 Ch. Div. 88, (p) Perry v. Oriental Hotels Co., 5 Ch. 420 (Giffard, L.J.) (q) Campbell v. Campagnie Generale, 2 Ch. D. 181 ; Tottenham v. Swansea Zinc Co., W. N. 1884, 54; 32 W. R. 716; 53 L. J. (Ch.) 776 ; 51 L. T. 61 ; Wtlmott r. London Celluloid Co., W. N. 1885, 29; Giles v. Nuthall, W. N. 1885, 51. (r) Boyle v. Bettws Colliery Co., 2 Ch. D. 726. (s) Pound, Son, and Hutchins, 42 Ch. Div. 402. THE COMPANIES ACT, 1862. 267 under supervision (in wMcli latter section the appointment of liquidators Sect. 92. is specifically mentioned), the Court may have regard to the wishes of the creditors and contributories in matters relating to the winding-up. At the wish therefore of a very large majority of the unsecured creditors, two creditors have been appointed liquidators in place of the petitioner's nominee (*). And at the wish of the creditors a liquidator appointed by the shareholders has been removed (m). And, as has already been pointed out, the Comp. (W. Up) Act, 1890, requires meetings of creditors and contributories to be called to determine whether application shall be made to the Court to appoint a liquidator in the place of the official receiver. To avoid the discreditable contests which sometimes arose in the matter of who will be the appointment of liquidators, it is understood that a rule was at one time appointed. laid down and acted upon very efficaciously by the late Lord Justice Griffard, when Vice-Ohancellor, that no one should have the costs of an application for the appointment of official liquidators but he who applies and succeeds, and then only the ordinary costs of an ordinary application (x). The general rule of the Court is that, coeteris paribus, the person who is nominated by the petitioner will be appointed (y). But some judges have since declined to adopt this rule (is). Some remarks upon this rule will be found in the case of In re Northern Assam Tea Co. (a) before Lord Hatherley, L.C., and Gi£fard, L.J., where the laying down of any hard-and-fast rule that the nominee of the petitioner shall have a preference is disapproved, as throwing out an additional bait for trafficking in winding-up petitions. But nevertheless the official liqui- dator, who had there been appointed by Eomilly, M.E., being personally qualified for the office, the Court of Appeal refused to interfere to disturb the appointment. This case was followed by In re Albert Average Assurance Association (V), in which Eomilly, M.E., remarking on the judgments of the Lord Chancellor and Lord Justice Giffard in the case last mentioned, said that he was unable to find in that case any rule at all upon the subject, and stated the rule on which he should act for the future as follows : " When the petitioner nominates a fit, proper, and respectable person, I shall adopt him cceteris paribus, that is to say, unless there is a very strong feeling against him, or unless there is something that may throw a doubt upon his fitness ; and if the chief clerk, after examining the case, acts upon that principle, then when it is referred to me I shall affirm his decision, after looking, of course, into the case for myself, as I am bound to do. I shall not feel myself bound to give the preponderance to the creditors if it is a creditors' winding-up, or to the shareholders, if it is a shareholders' winding-up, but I shall, cceteris paribus, appoint the petitioner's nominee, defining cceteris paribus in the manner I have explained " (c). This case was carried on appeal before James, L.J., who held that the rule (*) Association of Land Financiers, 10 where it was said that the choice of the Ch. D. 269. official liquidator by the person having the («) Oxford Building Co., 49 L. T. 495. carriage of the winding-up order would (x) See Lomion and Northern Insurance not be interfered with except on the ground Corporation, 16 W. K. 965 ; 19 L. T. 144, of personal disqualification, where Giffard, V.C, said that he would (js) E.g. Hoyland Colliery Co., W. N. under no circumstances allow the costs of 1884, 13. a contest in such a case. (a) 5 Ch. 644. (y) See General Provident Insurance Co., (6) Ibid. 597, n. 17 W. R. 42 ; 19 L. T. 45 (Malins, V.C), (c) Ibid. 698, n. 268 THE COMPANIES ACT, 1862. Sect. 92. tbiis stated was one which it was competent for a judge to lay down for his own guidance, and that it would be competent for another judge to lay down for his guidance a different rule ; and that in neither case would the Court of Appeal interfere if the rule were, in its opinion, such as a judge might lay down for that purpose (d). The rule thus stated is that which is now generally followed (e), but subject to this qualification that, according as the assets are or are not more than sufflcient to pay the debts and costs, the question will be treated as one in which the wishes of the shareholders in the former case and the creditors in the latter are to be first consulted. The judge cannot delegate to his chief clerk his judicial functions; and, therefore, if the matter of an appointment is brought before the judge he is bound to look into the matter for himself, and form his own opinion upon iH /) ; but, provided he do so, the Court of Appeal will not interfere with Ms discretion as to the degree of weight he thinks fit to give to the conclusion come to by his chief clerk (p). Amalgamated Where the W. Society had been amalgamated with the A. Company, and companies. i]^g_^ company having gone into liquidation, an order was subsequently obtained for winding up the W. Society, it was held that one of the liqui- dators of the A. Company was the most proper person to be appointed liqui- dator of the W. Society ; and that, where the interests of the two companies might be in conflict, directions might be given for appointing separate solicitors to represent them (h). In the European Arbitration Lord Westbury refused to appoint a separate liquidator for one of the absorbed companies («). But where, the B. Society having been amalgamated with the E. Society, a compulsory order was made on the 12th of January, 1872, to wind up the E. Society ; and on the 8th of February, 1872, oificial liquidators were appointed ; and in the interval, viz., on the 18th of January, the B. Society passed a resolution to wind up voluntarily and appointed liquidators ; a summons by the only dissentient shareholder of the B. Society to remove the voluntary liquidators appointed at the meeting of the 18th of January, and substitute for them the liquidators of the E. Society, was refused (k). Life Assurance By the Life Assurance Companies Act, 1872 (35 & 36 Vict. c. 41), s. 4, Companies y, infra, where, in the case of amalgamated life assurance companies, a ' ' " subsidiary " company is ordered to be wound up in conjunction with a " principal " company, the Court may by the same or any subsequent order appoint the same person to be liquidator for the two companies. Supervision As to the appointment of liquidators when a supervision order is super- "'d^^ f "P"''' seded by a compulsory order, see sect. 152, infra. pulsory^ordei! Where a company is already in voluntary liquidation it was at one time Voluntary ^^^^ ^^^^ ^ compulsory Order would in general continue the voluntary winding-up liquidator as official liquidator (V). But this was not the practice before the superseded by Comp. (W. Up) Act, 1890, and of course is not so after that Act. oXr''"'^ By the Stannaries Act, 1869 (32 & 33 Vict. c. 19), s. 33, it was enacted that— g " ,. Duties of liegistrar in liquidation of a Company.'] Where an order is Act, 1869. (lO 5 Ch. 597. Oriental Hotels Co., 5 Ch. 420. (c) See some observations upon this (i) E. p. Dyke (Eur. Arb.), Reil. 12 ; rule, ante, p. 228. L. T. 10. (/) Agriculturist Cattle Insurance Co., (A) British Nation Assurance Society, :l 1). V. & J. 194. B. p. Henderson, 14 Eq. 492. (jf) Albert, <^c., Association, 5 Ch. 597. (() London and Mediterranean Banking, (A) Wf.^torn Life Assurance Society, Co., 15 W. R. 33 ; 15 L. T. 153. L. p. Wilktt, 5 Ch, 396 ; cf. Perry v. THE COMPANIES ACT, 1862. 269 made for the •winding-up of a company in the Court (m), whether the same Sect. 93. be a registered or unregistered company (m), and no official liquidator is appointed, the registrar shall have authority, with the sanction of the Vice- Warden, to perform all the ordinary duties of an official liquidator, and to exercise all the powers assigned by the Companies Act, 1862, to such liquidator, so far as such duties or powers are not incompatible with his official duties as registrar. Provided always, that the registrar shall not in such case be called upon to give any such security as may be required of an official liquidator under sect. 92 of the last-mentioned Act, unless the Lord- Warden of the Stannaries or the Vice- Warden by some general rule of the Court shall otherwise order, nor shall he be entitled to any remuneration for the performance of the said duties other than the salary now received by, or that may hereafter be assigned to him in his official character of registrar ; nor shall it be necessary for him to use the name or style of official liquidator, nor any other style than that of registrar, unless it shall become necessary for him to take out letters of administration to any deceased contributory ; and in proving a debt due from any contributory who shall have become a bankrupt within the intent and meaning of sect. 87 (o) of the Companies Act, 1862, a certi- ficate of the debt signed by the registrar, with the seal of the Court attached, shall be accepted in the Court of Bankruptcy as sufficient proof of such debt as against the estate of the bankrupt without requiring the oath or affidavit of the registrar : Provided also, that the registrar, in the performance of such duties and exercise of such powers, shall not be liable to any penalty prescribed by the said Companies Act, 1862, and imposed on official liquidators as such, or become personally liable in respect of any act done or proceeding taken by him by the order or authority, or with the sanction of the Vice- Warden acting in his judicial character. 93. Any official liquidator may resign or be removed by the Resignations, Court on due cause shewn (a); and any vacancy in the office of £^v°^^^^' an official liquidator appointed by the Court shall be filled by the vacancies, Court O). There shall be paid to the official liquidator such pensatbn. salary or remuneration, by way of percentage 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 (y). (a) Conf. 3. 141. (•),) s. 133 (3); Gen. Order, Nov. 1862 iff) ss. 141, 150; Gen. Order, Nor. Eule 18: Comp. (W. Up) Act, 1890 » 27 1862, Rule 16; Comp.(W. Up) Act, 1890, (3). r/ > > • ' s. 4 (4). The creditors are entitled to regulate their own proceedings, and where Removal of there is a deficiency of assets, and the official liquidator insists on pro- ''I^Wator, secuting an action contrary to the wish of the majority of creditors, this will be a sufficient ground for removing him (p). (m) j.e., the Court of the Vice-Warden. {p) Tavistock Ironworks Co 19 W R (n) See s. 3 of the Act. 672 ; 24 L. T. 605. (o) This must mean s. 77. 270 THE COMPANIES ACT, 1862. Sect. 93. Remuneration of official liquidators ; " Ebsuiations as to the mode of remunerating Ofaoial Liquidators adopted by the Master of the Bolls and the Vice-Chancellors, and sanctioned and approved by the Lord Chancellor. "Every application by an oflScial liquidator for remuneration must be supported by an afSdavit shewing the number of hours devoted by him and his clerks respectively to the business of the liquidation. " In iixing the amount of the remuneration the judge will, subject as hereinafter mentioned, be guided by the following scale : — O I Class I. „ II. „ III. „ IV. „ V. „ VI. „ VII. „ VIII. " Liquidators. Wliere the assets divisible (g) among the unsecured creditors shall not amount to £500 Where they shall amount tU £500 and not to 2,000 2,000 „ 5,000 Per day of eight hours. £1 2 3 5,000 10,000 10,000 4 50,000 6 50,000 „ 100,000 8 100,000 „ 500,000 10 500,000 and over 12 Group A. „ B. „ C. 1st Class. s. d. 2 3 3 6 Clerks. 2nd Class, s. d. 1 6 2 6 2 6 3rd Class. s. d. 1 1 1 per hour. "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 circumstances of any liquidation it is proper to add to or deduct from the amount of 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 liquidator on account of his remuneration. " For this purpose the judge will estimate the amount of such remunera- tion as well as circumstances will admit, and will pay to the liquidator either the whole of such estimated remuneration or such part thereof as to the judge shall seem reasonable " (r). This regulation is not a General Order, binding on the judges, under any statute, but is a guide to the judges in the exercise of their discretion in iixing the remuneration of liquidators (s). Where in the liquidation a sale is made of the assets of the liquidating company to a new company in consideration of shares in the new company credited with so much paid up to be allotted to the shareholders of the old company, the amount so credited may properly be taken into account as " assets divisible " under the regulation (s). In a liquidation, the transactions in which took place before the date of the regulation above set out, it was held that : (5) j.o., assets free to be divided ; in other words, all the property of the company after discharging incumbrances, not assets actually divided ; Mysore Reefs Co., 34 Ch. Div. 14. (f) This regulationjis given in 3 Ch. Ixiv. (s) Mysore Reefs Co., 34 Ch. Div. 14. THE COMPANIES ACT, 1862. 271 1. Payment by percentage is not imperative on the Court, and where the Sgg^_ 94. assets are very large, is not admissibi" 2. The amount of remuneration will not be increased or diminished in consideration of the liquidator having realised the assets at a profit or a loss. 3. The basis of the estimate of the amount of remuneration will be the time and labour employed in the liquidation (<). The Court will not interfere to determine the proportion in which the of joint remuneration ascertauied to be due to joint liquidators shall be divided liquidators. between them (u). 94. The official liquidator or liquidators shall be described by Style and the style of the official liquidator or official liquidators (a) of the offidai" particular company in respect of which he is or they are appointed, liquidator. 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 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 (j3). (o) Comp. (W. Up) Act, 1890, s. 4 (3). (18) In the case of an unregistered company, a vesting order may be obtained ; s. 203, The effect of a winding-up order is to constitute the liquidator a trustee (x) Liquidator is of the property of the company for the creditors of the company who were a trustee for creditors at the time of the winding-up (see ss. 98, 133). The order, therefore, ^^^ creditors, prevents the Statute of Limitations from running against a creditor neglecting to prove his debt within the proper time (2/). " There is by this section (sect. 98) imposed upon the assets of the company, wherever they may be at the time of the winding-up, a trust to be applied in discharge of the liabilities of the company " (z). (See, however, sect. 107, as to a creditor who does not prove within the time limited for that purpose.) The duty, therefore, of the liquidator is to ascertain what were the liabili- ties of the company at the date of the winding-up, and time will be given him for this purpose. So that where more than twelve months had elapsed since the dehvery of Taxation of the company's solicitor's bill of costs, but the twelve months expired after the bill of costs. winding-up commenced, the liquidator was nevertheless entitled to have the bill taxed (a). In the case referred to the bill had been delivered three months before the winding-up, a further bill was delivered after the winding-up, and after twelve months from the second delivery both bills were taxed. Malins, V.C., there said : — " The winding-up makes a complete change in the relative position of all parties as regards a company, and I must treat the case as if the rights of all parties had remained just as they were at the time of the winding- up "(a). (<) Agra and Masterman's Bank, Can- L. T. 755 (M.R.). nan's Claim, 7 Eq. 102. («) Per Lord Cairns, Delhi Bank's Case (u) Zangham Motel Co., 17 W. R. 463; (Alb. Arb.), 15 Sol. J. 923, 924; and see 20 L. T. 163. and consider Se Medical Trust Ihmd, 15 (jx) See also Black # Co.'s Case, 8 Ch. Sol. J. 840, where it was said that on the 254, 262. winding-up all claims and demands mature (y) General Boiling Stock Co., Joint immediately. Stock Discount Co.'s Claim, 7 Ch. 646 ; 26 (a) Marseilles Extension SaUviay Co., 272 THE COMPANIES ACT, 1862. Sect. 94. Liquidator's representative character. Money paid by mistake of law. Bankruptcy and winding- up. Discovery from the liquidator. The liquidator represents at the same time both the creditors and the com- - pany, and a question of considerable nicety sometimes arises as to how far he can enforce the rights of the creditors as independent of, and paramount to, those of the company, and how far he can enforce them only in right of the company. The result of the decisions and dicta on this subject, which are noticed elsewhere (5), is perhaps this, that although the liquidator is substituted for, and enforces the rights of creditors in right of the company, yet that (1) the winding-up order calls into existence new rights and new liabilities which did not exist before, and (2) that equities which might have been set up against the company cannot prevail against the liquidator as representing the creditors (c). If money have been paid to a liquidator under mistake of law he, being an ofBcer of the Court, would no doubt, like trustee in bankruptcy, be ordered to refund (d). The resemblances and distinctions between bankruptcy and winding-up will be found noticed on the following points in the cases referred to : — Set-off (e) ; rights of secured creditors (/) ; application of rule in Ux parte Waring, 19 Ves. 345 (g) ; application of Bills of Sale Act, 1878 (h) ; no double proof in respect of same debt (i) ; right of surety to recover proportion of dividend (k). The liquidator is in the position of a receiver and manager of partner- ship assets (I), appointed by the Court ; and as an officer of the Court his duty is to hold an even and impartial hand between all the individuals whose interests are involved in the winding-uiD. But, except where he represents the company as a party litigant, he cannot be called ujion to make discovery at the instance of either creditors or contributories. By sect. 156 an order may be obtained for the inspection by the creditors and contributories of the books of the company, and it will be the duty of the liquidator to give to a person searching the books not only access, but every assistance and facility in finding out which are the relevant books and papers which he requires, but it is not his duty to search the books in order to make discovery at the instance of every person interested in every question arising (to). And he cannot be called upon to make an affidavit of documents (n). Thus where the question at issue is, whether the statutory requisites exist for placing a person on list B., and if so, what is the extent of his liability, this is a question with which the existing company has no concern, and the liquidator cannot be called upon to make discovery in the matter (m). But where the liquidator represents the company as a party litigant (since the company can only sue or be sued through his agency), as where there is in the winding-up an action or a proceeding which is in substance, though K p. Evans, 11 Eq. 151 ; of. De Bay v. Oriffin, 10 Ch. 291. Quaere, Liverpool Household Stores, W. N. 1889, 48. (6) Supra, pp. 118, 119, 142, and infrn, p. 273. (c) Consider also S.p. Paine and Layton, 4 Ch. 215. (d) E. p. Simmonds, 16 Q. B. Div. 308 ; Dixon V. Brown, 32 Ch. D. 597. («) Smith if Co.'s Case, Oledstanes i)'- Co.'s Case, 1 Ch. 538, 543 ; Anderson's Case, 3 Eq. 337, 339 ; Mersey Steel Co. v. Naylor, Benzon if Co., 9 Q. B. Div. 648 ; 9 App. Cas. 434 ; Loe and Chapman's Case, 26 Ch. D. 624; 30 Ch. Div. 216; Eberle's Hotel Co. v. Jonas, 18 Q. B. Div. 459. (/) Kellook's Case, 3 Ch. 769 ; of. Stone V. City and County Bank, 3 C. P. Div. 282, 303. ( g) HicJae ^ Co.'s Case, 4 Eq. 226. (A) Marine Mansions Co., 4 Eq. 601, 610 ; Stocliton Iron Co., 10 Ch. D. 335, 342. The Bills of Sale Act, 1882, applies to incor- porated companies: Attmborough's Case, 28 Ch. D. 682. (i) Oriental Commercial Bank, B. p. European Bank, 7 Ch. 99. (A) Gray v. Seckham, 7 Ch. 680. (0 See also Marine Mansions Co., 4 Eq. 601, 610. (m) Contract Corporation, Gooch's Case, 7 Ch. 207. (li) Mutual Society, 22 Ch. Div. 714. THE COMPANIES ACT, 1862. 273 not in form, an action by or against the company, then the adverse party Sect. 94. has a right to deal with the liquidator as the litigant, and obtain from him ' the same measure of discovery in the same manner as he would from any other litigant (o) — as, e.g., where the proceeding is one by an alleged con- tributory for relief on the ground that he has been induced to become a shareholder by fraudulent misrepresentations (jj). In contributory .cases, then, the rule is this, that an alleged A. contri- butory can (_p), while an alleged B. contributory cannot (q), require dis- covery from the liquidator. And this is the reason for the difference, that as against the A. contributory the liquidator, as representing the company, is a party litigant, while as against the B. contributory he is not. In shewing the liability of an A. contributory all the other A. contributories, i.e., the existing company, are interested ; in shewing the liability of a B. contributory the existing company, being primarily liable for everything, is not interested at all. It is a question with which creditors only are concerned, and in the contest the company, as represented by its liquidator, is not to be treated as a litigant. It will be observed that the distinction thus drawn is another authority for the proposition that the liquidator represents the creditors only in right of the company (r). Where the liquidator files one afSdavit against several respondents and some part only relates to some one of them, he cannot be compelled to point out to that respondent what part of the afSdavit is relevant to the case against him (s). Discovery can of course be obtained from the liquidator in his personal as distinguished from his representative character upon a proper case being shewn (t). The liquidator's personal liabiHty for costs of litigation must be regarded Liquidator's from two wholly different points of view ; viz. (A.) as between himself and liability for the adverse litigant, and (B.) as between himself and the estate. ''"^ ^ '~ (A.) As regards the former, and first as regards actions which the liquidator prosecutes or defends in the name of the company. Under the older Acts when the official manager sued or defended in his own name he was per- sonally liable for costs, and if an action in which he was plaintiff was dismissed, the order as to costs as between him and the adverse litigant was a personal order against him (u) : secus, where he was defendant (a;). So where the motion of the official manager was refused with costs, the order was against him personally (y). , The order was of course without prejudice to the official manager getting the costs out of the estate if the judge who had the control of the winding-up thought proper to give them. Under the present Acts when the liquidator does not sue or defend in his own name but in that of the company, qucere there is no jurisdiction to order the liqui- dator who is not a party litigant to pay costs, any more than directors of a going company could be ordered to pay costs. The remedy of the adverse litigant, if he be defendant, is to get security for costs under sect. 69 : and if he be plaintiff he litigates of course at his own risk. (o) Gooch's Case, 7 Ch. 207, 212. (u) Official Manager of Grand Trank (p) Bamed's Banking Co., 11. p. Contract Mailway t. Brodie, 9 Hare, 823; 3 D. M. Corporation, 2 Ch. 350. & G. 146 ; Official Managers of Consols In- (q) Contract Corporation, Gooch's Case, surance v. Wood, 2 Dr. & Sm. 353 ; 13 7 Ch. 207. W. K. 492. (r) See supra, pp. 118, 272. (») See 3 D. M. & G. 150, 151. (s) Mutual Society, 22 Ch. Div. 714. (y) Caldwell v. Ernest, 27 Beav. 39. (0 Sir John Moore Gold Co., 37 L. T. 242. 274 THE COMPANIES ACT, 1862. Sect. 94. But secondly, as regards the proceedings in the liquidation which the liqviidator takes in his own name the reasons given in the cases above referred to, and particularly in the judgment of Kindersley, V.O., in Official Managers of Consols Insurance v. Wood (z), seem as applicable under the present as under the former Acts to shew that where the liquidator is applicant, i.e., is in a position equivalent to that of plaintiff, and, fails, the proper order is, as between himself and the adverse litigant, that he do pay the costs, without prejudice to any application that as between him and the estate they be allowed out of the estate. This was the form of order adopted by Cairns, L.J., in SichelVs Case (a). It is true that in Bentley's Case (h) Fry, J., refused to make the order in that form, but the point was not argued. The fact is that in general the assets are sufficient, and an order for payment out of the estate is not objected to. The rule now adopted in the Appeal Court, as will be seen presently, is never to make an order for payment of costs out of the estate, but to make the liquidator personally liable, leaving the question whether he shall be recouped out of the estate or not to be decided by the judge who has control of the winding-up. This involves the principle that the liquidator is per- sonally liable (c), and this principle is, it is conceived, as applicable in a Court of first instance as on appeal. But in the Court of first instance the judge may determine at once as between liquidator and estate whether to allow the costs out of the estate or not, and if he think proper so to allow them and the adverse litigant (there being sufficient assets) does not object, then commonly the order is for payment, not by the liquidator personally, but out of the estate. (B.) Whether as between liquidator and estate liquidator should be allowed costs or not is of course quite another question. It involves not only costs which the liquidator is ordered to pay, but Ms own costs also. It is a question to be determined by the judge upon a consideration of whether the proceedings in which the costs have been inciirred were proper or not (d). In determining this question the Court will bear in mind that while the liquidator is to be treated as a person who as a general rule is entitled to his costs of the liquidation properly incurred, yet he is a paid agent bound to discharge his duties with reasonable care and skill, and that therefore he may be deprived of costs for a mistake which would not be sufficient to disentitle an ordinary gratuitous trustee to costs (e). An appeal will lie as to the liquidator's costs under Order LV. (e). Liqui- dators are not to be left to conduct litigation at their own risk as to costs in the event of failure (e). on appeal. On appeal there are again the same two questions as to costs, viz., (A.) as between liquidator and adverse litigant, and (B.) as between him and estate. (A.) As to the former, where a liquidator's appeal is dismissed with costs, the order will be that the liquidator do pay the costs (/), the intention being that he is to pay them, whether he do or do not get them out of the estate (^g). Where the liquidator is respondent in a successful appeal it is conceived that the proper order is still against him personally for costs (A), notwith- ) has rot been affected by s. 10 of the Judicature Act, 1875, in either part of that rule, i.e. in the decision, either that contributory who is also creditor cannot set off debt against call (c), or that contributory who is also creditor and who has paid all calls due from him is entitled to receive a dividend on his debt (d). In an action brought against a member by the liquidator of a limited company which is in liquidation under a voluntary winding-up continued under supervision, a debt due from the company to the defendant previous to the resolution to wind up voluntarily cannot be set off against a debt incurred by the defendant to the company after the resolution (e). Moreover, in any question of set-off in winding-up it is, of course, essential that, even if there is a right of set-off at all, the two demands should be of such a character as that the general principles of set-off apply. Therefore, where two persons as trustees had deposited trust funds with a banking company, and one of those persons was both entitled to a life interest in a portion of the funds and was also a contributory of the company, the contention of the of&cial liquidator that he was entitled to set off a dividend which had been declared on the debt against calls owing from the contributory was held untenable ; for the one was a joint demand of the two persons as trustees, the other a separate demand against one of the persons in her personal character (/). It has been said (g) that inasmuch as there is no distinction made in the Act between a creditor who is a member of the company, and one who is not, the proviso at the end of this section would appear to be inoperative — for when the creditors, including the contributories, have been paid, there is nothing left to set off. It is submitted, however, that the moneys here referred to are those due " in respect of any dividend or profit " which are excepted from the preceding clause, and which by sect. 38 (7) are not to be deemed a debt to the company payable to a member in a case of com- petition between himself and any other creditor not being a member of the company. See, as to set-off where a contributory becomes bankrupt, sect. 75, and as to set-off in the case of a person other than a contributory, sect. 158. A contributory, who was petitioner for the winding-up order, will receive the costs of the petition free from set-off of calls (/»)• The jurisdiction given by this section will not be confined to cases in which the debt is not disputed by the contributory, or in which the facts are very plain and straightforward, and there is no point of law to be determined. The object of this and like sections is to avoid a double process, and to do complete justice in the winding-up. And, therefore, it is only in rare instances (as where some of the parties concerned are not amenable to the jurisdiction in the winding-up) that an action should be brought. Thus, an order might be made in the winding-up, under this section and the 165th section, to compel repayment by a director or a contributory of a dividend paid under a delusive and fraudulent balance-sheet (i). (b) 1 Ch. 528. (o) General Works Co., Gill's Case, 12 Oh. D. 755; the debt was a judgment debt. (cQ West of England Bank, E. p. Bromi, 12 Ch. D. 823. (e) Sankey Brook Coal Co. v. Marsh, L. R. 6 Ex. 185. (/) Imperial Mercantile Credit Associa- tion, 16 L. T. 814 ; cf. Middleton v. Bol- lock, E. p. Nugee, 20 Eq. 29 ; E. p. Morier, 12 Ch. Div. 491. (s) Calisker's Case, 5 Eq. 214, 216, 217. (A) 0. s. 86, supra, p. 251. (i) Mercantile Trading Co., Stringer's Case, 4 Ch. 475 ; see s. 165. THE COMPANIES ACT, 1862. 289 And, under the Act of 1856, it was held that proceedings to recover from Sect. 102. contributories shares in another company to which the liquidating company had sold its business, and which shares had been given as part of the con- sideration, ought to be taken, if at all, in the winding-up, and not by a suit {k). If A., being the holder of shares not fully paid up, transfers to B., and the shares have been so dealt with that as between the company and B. the shares must be treated as paid up, quaere, whether under this section A. could be compelled to pay the calls on the shares (I). A holder of fully paid-up shares, who is indebted to the company, will Holders of not be put on the list of contributories in order to bring him within the ^"'^f paid-up summary jurisdiction of the section (m). 102. The Court (a) may, at any time after making an order for Power of winding up a company, and either before or after it has ascertained ^^^^ (,,,iij_ the sufficiency of the assets of the company, make calls (|3) on and order payment thereof by all or any of the contributories, for the time being settled on the list of contributories to the extent of their liability, for payment of all or any sums it deems 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, and it 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 (y). (o) Comp. (W. Up) Act, 1890, s. 13. supra, p. 199. (0) s. 120; Gen. Order, Nov. 1862, (7) C/. s. 133 (9). Eules 33-85. As to interest on calls, see With respect to this section, see the notes to sect. 38, to which, in sub- Effect of stance, this section is very similar. section. "Debts and liabilities" means estimated debts and liabilities. The intention of the section is to provide a fund for payment of the debts when established : and it is not, therefore, the duty of the Court to wait until claims have been established against the company before making a call (n). The Court of Appeal will not, without strong reason, interfere with the Appeal against discretion of the judge to whose Court the winding-up isattached, as to the 2'^"*"'" °' quantum of a call made in the winding-up (n). As to a call for adjustment of the rights of the contributories among Permanent themselves in the case of a permanent building society, see In re Doncaster buildmg Permanent Building Society (0). On a summons for a call {p) or other proceeding under the winding-up Winding-up order (a) the propriety or validity of the winding-up order cannot be called o^''^^'' cannot 1. , s be disputed m question (r). i^ subsequent For in any future proceedings in the winding-up the windmg-up order proceedings. (A) Cardiff Coal Co. v. Norton, 2 Eq. 558 ; Hon, 8 Eq. 176 ; Arthur Average Association, 2 Ch. 405. 3 Ch. D. 522. Q) Spargers Case, 8 Ch. 407, 410, 413. (q) Arthur Average Association, B. p. (m) Marlborough Olvb Co., 5 Eq. 865 ; Hargrove 4t Co., 10 CIi. 542 ; cf. Ee Hay- cf. Schroder's Case, 11 Eq. 131, 134, 188. cock's Policy, 1 Ch. D. 611, 616. (n) Contract Corporation, 2 Ch. 95 ; (r) And see Padstow Association, 20 Ch Barned's Banking Co., 86 L. J. (Ch.) 215. Div. 145 ; Strick v. Swansea Tin Plate Co., (0) 4 Eq. 579. 36 Ch. D. 558 ; Sunderland Building Soc., (p) London Marine Insurance Associa- Q. B. D. 349. U 290 THE COMPANIES ACT, 1862. Sect. 103. must be taken to be valid until discharged. And therefore the Court refused to entertain an application to remove a name from the list of contributories where the motion was made on the ground that there was no duly registered company, and no valid winding-up order (s). In Be Flumsiead, dec, Water Co. (t) it was said that a winding-up order made in the supposed exercise of a jurisdiction which did not exist was null and void, and the decision of the Master of the Eolls (u) dismissing a bill filed by the official manager on the ground that, having been appointed under a void order he had no title to sue, was affirmed ; but it is to be observed that, so far as the Court of Appeal is concerned, there was before the Court a motion to discharge the winding-up order, upon which an order was made. Persons who are on the register of shareholders at the commencement of the winding-up, having thereby incurred a, prima facie legal liability, are not entitled to resist the making of a call on the ground that they assert a right to have their names removed from the list ; but their remedy is to apply for the suspension of the operation of the call as against themselves (x). Meriiber I'esisting call. Power of Court to order pay- ment into Bank. 103. The Court may order any contributory, purchaser, or other person from whom money is due to the company to pay the same into the Bank of England or any branch thereof to the account of the official liquidator instead of to the official liquidator, and such order may be enforced (a) in the same manner as if it had directed payment to the official liquidator (j3). (ft) Gen. Order, Nov. 1862, Rule 38. (i8) s. 100; Gen. Order, Nov. 1862, Rules 11, 32, 36-41. When the official liquidator desires to issue a writ of fi. fa. against a contributory who has not paid a call, he must obtain an order for payment to himself under Gen. Order, Nov. 1862, Eule 38 (y). Regulation of account with Court. Provision in case of re- presentative contributory not paying moneys ordered. 104. All moneys, bills, notes, and other securities paid and delivered into the Bank of England or any branch thereof in the event of a company being wound up by the Court shall be subject to such order and regulation for the keeping of the account of such moneys and other effects, and for the payment and delivery in, or investment and payment aiid delivery out of the same as the Court may direct (a). (a) Gen. Order, Nov. 1862, Rules 36-44. 105. If any person made a contributory as personal representa- tive of a deceased contributory makes default in paying any sum ordered to be paid by him, proceedings may be taken for adminis- tering the personal and real estates of such deceased contributory, (s) OvereniJ, Gurruy, ^ Co., E. p. Oakes, 16 L. T. 148 ; and see infra, s. 124, n. (0 2 D. F. & J. 20, 32, 37. (m) Plumstead Water Co. v. Davis, 28 Benv. 545. (a) Bamed's Banking Co., 36 L. J. (Ch.) () was a very peculiar case arising not in winding up but upon a purchase by the Secretary of State for India of the whole undertaking of the company. The capital of the company consisted of £20 shares fully paid which had been converted into stock and £20 shares on which £5 had been paid. The purchase money considerably exceeded the total amount paid up. It was held that the money was to be divided in proportion to the amounts paid up. This decision neither equalized the capital by first repaying £15 in respect of each £20 to the stock-holder, nor divided the excess of the purchase money above all the capital paid up upon the footing of profit. It is difficult to say what principle can be extracted from the case. There is now the authority of the House of Lords which decided that case for saying that it was decided solely on the special cir- cumstances, and is not to be relied upon as an authority except where the circumstances are precisely similar (c). By the memorandum and original articles of association, the rights of the Eights to members inter se in respect of distribution of surplus assets in winding up, capital cannot like their rights in respect of dividend, may be regulated in any such manner ^^ ^^^ ' as may be agreed upon. The company may, for instance, take power by its original constitution to creatb shares with preference in repayment of capital (d), just as it may take power to create shares with preference in respect of dividend. But if it have not taken such power originally, it is conceived that it cannot subsequently acquire it, any more than it can subsequently acquire power to issue with preference shares in respect of dividend (e). And the powers contained in sect. 161 do not extend to allow the company to deter- mine in what manner the proceeds of sale shall be divided. For if they did, they would in fact allow a majority of the shareholders to alter a funda- mental part of the constitution of the company, viz., the proportionate interest of the members in the capital of the concern, and to vote away for their own benefit the property of the minority (/). It is useful to introduce into the memorandum and articles power to Distribution of divide surplus assets in specie, for otherwise (g) it is conceived they must be assets in sold and the proceeds divided. In the case of speculative or unsaleable =P^"«- assets this may involve great loss. 110. The Court may, in the event of the assets being insuf- Court to flcient 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 as the Court thinks just (a). (a) Of. s. 144. As to costs incurred in litigation by a company in liquidation, see supra, p. 243. As to the costs of the winding-up petition, supra, p. 251. As to the costs, charges, and expenses, incurred in the winding-up, it is not, it is conceived, from any difference of principle that the provision of (ft) 36 W. R. 1. (/) Griffith v. Paget, 5 Ch. D. 894; 6 (c) See 14 App. Cas. 531, 542. Ch. D. 511. (d) Bangor Slate Co., 20 Eq. 59. (gr) Notwithstanding March v. Martin, le) See ante, p. 182. W. N. 1880, 111. 296 THE COMPANIES ACT, 1862. Change of solicitor. Eemuneration of liquidator. Order of priority. Sect. 110. sect. 144 in the case of a voluntary winding-up that these costs shall be paid in priority to all other claims is not enacted here in the case of a winding up by the Court, but only because it is presumed that no direction is required to instruct the Court to do that which it would see that the justice of the case requires (A). Where in the course of the winding-up the liquidator changes his solicitor, and the assets are not sufiloient to pay the whole of his costs, they wiU in general, as between the solicitors, be applied in payment of their costs 'gro rata (i). As between the liquidator and his solicitor the liquidator is not personally liable for the costs of the winding-up (k), A liquidator is not entitled to receive anything out of the assets by way of remuneration until all the costs of the winding-up (including the bill of costs of the solicitor employed by him and the costs of any provisional liquidator properly appointed) have been paid in full. The rule of the Court is, that in the first place the costs of the petition for winding-up are to be paid out of the assets, next the costs of the winding-up, and then the remuneration of the liquidator (0- As between costs of the liquidator incurred in litigation with third parties (e.c/., persons alleged to be oontributories) and general costs of the liquidator on the one hand and costs ordered to be paid by the liquidator, or out of the assets to such third parties on the other, Chitty, J., held in Dronfield Silkstone Co. (m) that all these are payable rateably without regard to priority in the dates of the orders under which such costs have been directed to be paid, referring to Ca'pe Breton Co. v. Fenn (n), and that all such costs are to be postponed to costs of realisation. But this has been disapproved (o), and it has been held that under an order for payment of costs out of the assets, or by the liquidator with liberty to him to retain them out of the assets, the person to whom payment is to be made is entitled to immediate payment out of the assets, whatever they are, before costs of realisation or anything else (o), and if the liquidator pays them he is entitled to repay himself out of the assets in priority to all other creditors (o). Solicitor's Hon. The Solicitor to the liquidator is, semhle, entitled to a lien for his costs on a fund recovered in the winding-up through his instrumentality (ja). The solicitor to the company is entitled to a lien on documents of the company in his possession before the commencement of the winding-up, and being documents upon which it iS competent to the directors to give a lien (q) (r), but not for costs incurred before the incorporation of the com- pany (s). The register of members is a book in which, under sect. 32, other persons than the company have rights, and the directors cannot so deal with it as to create a lien upon it (q). The minute book falls within the same principle (?) ; and, semhle, this may extend to other books which, under the Companies Acts or the articles of association, are to be kept at the company's (A) See per Lord Cairns, Webb v. ^^'7liffin, L. K. 5 H. L. at p 735, cited supra, p. 151. (i) Audley Hall Cotton Spinning Co., 6 Eq. 245. (4) Anglo-Moravian Co., B. p. Watkiti, 1 Ch. Div. 130, ante, p. 276. (J) In re Masseij, 9 Eq. 367 ; Dronfield Silkstone Co., 23 Ch. D. 511 ; and see In ro Trueman's Estate, 14 Eq. 278; cf. in bank- niptcy, E. p. lioyle, 20 Eq. 780. (m) 23 Ch. D. 511. in) 17 Ch. D. 198, and E. p. Perciml, 6 Eq. 519. (o) Dominion of Canada Plumbago Co., 27 Ch. Div. 33 ; Home Investment 'Society, 14 Ch. D. 167 ; cf. Batten v. Wedgwood Coal Co., 28 Ch. D. 317. (p) £e Massey, 9 Eq. 867. (j) Capital Fire Association, 24 Ch. Div. 408. (r) Anglo-Maltese Dock Co., W. N. 1885, 84; 54 L. J. (Ch.) 730 ; 52 L. T. 841 ; 33 W. R. 652 ; see also note to s. 115. (s) He Galland, W. N. 1885, 224. THE COMPANIES ACT, 1862. 29Y registered oflSce (t). The solicitor to the company before winding-up cannot Sect, 110. acquire a lien on documents which come into his possession after winding-up commenced (u). Where there are incumbrancers, such as holders of debentures giving a Costs of charge upon the property of the company (x), or equitable mortgagees of realising property of the company (y), and the property is realised in the winding-up, ^^^'^ ^' the liquidator's costs, charges, and exp&ses of the realisation are first pay- able out of the fund, and then the principal and interest, and the costs of application, in the matter of the winding-up, of the incumbrancers. The foregoing have priority over the general costs of the liquidation. The liquidator's costs of preservation of the property are, as between the incum- brancers and the company, payable by the company, but the liquidator is entitled to be indemnified out of the fund against any costs of preservation which may not be paid out of the company's assets (z). Where, however, in the winding-up part of the assets had been severed from the rest and paid into Court to answer the claim of a creditor, upon which claim there were many incumbrances, and then a petition for payment out of Court was presented and served on the liquidators, it was held that out of the fund must be paid the liquidators' costs of appearing on the petition, but not their costs, charges, and expenses of investigating the claims, or of an abortive attempt at arrangement (a). In an unlimited insurance company whose policies provide that the assured shall have no claim against the shareholders beyond the amount unpaid on their shares, and that the funds, &c., of the company shall alone be liable, it is conceived that such costs of realisation as costs incurred in the sale of assets are to be deducted as against the policy-holders, and that the net sale moneys only will be assets applicable to the payment of their claims (J). If, however, the costs of realisation cannot be readily distinguished from the general costs of winding up, it seems that the Court will not be diligent to distinguish them, so as to relieve the shareholders at the expense of the policy-holders (c). And as to the general costs of winding up (6), including the costs of calling up the unpaid capital (d), these are to be borne wholly by the shareholders to the relief of the funds applicable for payment of the policy-holders ; although as between the assured and the general creditors the former are not entitled to any priority (e). For the contract between the parties is that the policy-holder shall get the Limited and benefit of the £20, or whatever is the liability qua the policies on the share, "^limited Where, therefore, the shares were £20 shares with £11 paid, and first a call was made of £9 and then another of £12, and the liquidator accepted from a contributory a lump sum of say £8 or £10 in compromise of both these calls and all future calls, the policy-holder was entitled to have as part of the limited assets the whole £8 in the former case and £9 out of the £10 in the (0 Anglo-Maltese Dock Co., W. N. 1885, 18 Eq. 656. 84; 54 L. J. (Ch.) 730; 52 L. T. 841 ; 33 (6) State Fire Insurance Co., 34 L. J. W. R. 652; see also note to s. 115. (Ch.) 436 ; Agriculturist Cattle Insurance («) Capital Fire Association, 24 Ch. Div. Co., E. p. Official Manager, 10 Ch. 1. 408. (c) Professional lAfe Ass. Soc, 3 Eq. (a;) Marine Mansions Co., 4 Eq. 601 ; 668 ; 3 Ch. 167. Regents Canal Ironworks Co., E. p. Grissell, (d) Agriculturist Cattle Insurance Co., 3 Ch. Div. 411. E. p. Official Manager, 10 Ch. 1 ; and (jf) Oriental Hotels Co., Perry t. Oriental see infra, s. 200, d. Motels Co., 12 Eq. 126. (e) State Fire Insurance Co., 1 H. & M. (2) See last two notes. 457 ; 1 D. J. & S. 634. (a) Bonelli's Telegraph Co., Cook's Claim, 298 THE COMPANIES ACT, 1862. Sect. 111. latter, leaving for the unlimited assets only sucli sum (if any) as remained after crediting the limited assets with the £9 or so much of it as the contri- butory had paid (/). And this decision seems borne out by a subsequent case {g) in which sums received under compromises were held not to be apportionable so as to appro- priate some portion to payment of costs of winding up to the detriment of the policy-holders. Jessel, M.K., there said, " The shareholders have as between themselves and the policy-holders no equity under the Act to deprive the policy-holders of all the money the Court can get from them, the shareholders, until they have paid their calls." But where a charge had been given upon calls, i.e., upon the limited as distinguished from the unlimited or general assets, and had been paid out of the limited assets, it was held that the policy-holders had no equity to have the assets marshalled, so as to throw part of the debt on the unlimited assets (li). Indemnitv Company A. having purchased the business of Company B., and covenanted claim for' costs, to indemnify it against all claims, &c., and both" companies being subse- quently wound up, semUe Company A. is either under no liability to indem- nify Company B. against the costs of winding up the latter («), or is liable to indemnify it only so far as those costs can be shewn to have been incurred by reason of the breach on the part of Company A. of their undertaking to indemnify Qc). Dissolution of company. Dissolution orders. Company incorporated by special Act. Contingent debt. 111. When the affairs of the company have been completely wound up, the Court shall make an order that the company be dissolved from the date of such order, and the company shall be dissolved accordingly (a). (a) Gen. Order, Nov. 1862, Rules 65-67, Form 56 ; s. 143, as to voluntary winding-up. When the liquidation of a company is completed it is commonly the practice to take a dissolution order in order to bring the company to an end and allow of the books being destroyed. Cases of dissolution after voluntary winding-up are also by no means uncommon, and some questions which have arisen under them are noticed under sect. 143. A comparison may be made between the provisions of this Act and those of the Industrial and Provident Societies Act, 1876 Q), as to dissolution. The 18th section of the repealed Act of 1862, which provided that, notwith- standing dissolution, a society should still be considered as subsisting so long as its affairs were unsettled, is not re-enacted. Where a company, as a canal company, has been incorporated by a special Act of Parliament, whose provisions shew that the company was intended to be maintained in perpetuity, nevertheless, semble, if such a company becomes subject to the winding-up jurisdiction, the Court may make an order dissolv- ing the company (m). AVhether the existence of a claim in respect of a debt payable on a con- (/) International Life Ass. Soc, 36 L. T. 914. ((/) Accidental Death Insurance Co., 7 Ch. D. 568. (/i) International life Ass. Soc, 2 Ch. Div. 476. («■) Indemnity Case (Alb. Arb.), Eeil. 17 ; 16 Sol. J. 141. (k) Indemnity Case, Re British Nation Indemnity Claims (Eur. Arb.), Reil. 3; L. T. 4; Royal Naval Society's Indemnity Case (Eur. Arb.), L. T. 165. (0 39 & 40 Vict. c. 45, s. 17. (m) Bradford Navigation Co., 10 Eq. 331, 341 ; S. C, 5 Ch. 600 ; and see s. 199. THE COMPANIES ACT, 1862. 299 tingenoy, which has been admitted to proof (v. sect. 158), ought to prevent Sect. 112. the making an order for dissolving the company : qucere (n). 112. Any order so made shall be reported by the official liqui- Registrar to dator to the registrar, who shall make a minute accordingly in of dissolution his books of the dissolution of such company. °^ company. 113. If the official liquidator makes default in reporting to the Penalty on . • J 1 <. 1 . 1 1 1 /^ J iiiot reporting registrar, in the case ot a company being wound up by the (Jourt, dissolution of the order that the company be dissolved, he shall be liable to a oo^panj'- penalty not exceeding five pounds for every day during which he. is so in default. 114. Any petition for winding up a company hy the Court Petition to be under this Act shall constitute a lis pendens within the terms '*^™ ""'' of the Act passed in the session holden in the second and third years of the reign of her present Majesty, chapter eleven, and entitled " An Act for the letter Protection of Purchasers against Judgments, Crown Debts, Lis Pendens, and Fiats in Bankruptcy," provided the same is duly registered in manner required ly such Act concerning suits in equity. This section is by 30 & 31 Vict. c. 47, s. 1, repealed from the passing of Section that Act. repealed. Sect. 153, which refers to all the property of the company, including, Its effect as to therefore, the real estate, seems to render this section superfluous, so far as company ; registering the petition as a lis pendens against the company is concerned ; although the object of the Legislature may have been to give protection to a purchaser of the real estate of the company, and to enable him to receive notice by the registration that a proceeding was pending, and not iind with- out notice that the aUenation to him was declared to be void and invalid. It was held in In re Barned's Banking Go., Ex parte Thornton (o), that as to contri- the section did not extend to authorize the registration of the petition ^i^t<"-''es. against individual contributories. The section may therefore be said to have been superfluous as regards the property of the company, and inapplicable to restrain the alienation of his property by a contributory. The improper removal or concealment of his goods by a contributory is dealt with by sect. 118; but with regard to the real property of a con- tributory any improper alienation is left to stand upon the general law of the kingdom. Extraordinary Powers of Court. 115. The Court may, after it has made an order for winding up Power of the company, summon (a) before it any officer (j3) of the company ^„^'^„'° or person known or suspected to have in his possession any of the persons estate or effects (j3) of the company, or supposed to be indebted to suspected the company or any person whom the Court may deem capable "^ ''^""S company. (n) Haytor Granite Co., 1 Ch. 77; and (o) 2 Ch. 171. see and consider note to s. 143. 300 THE COMPANIES ACT, 1862, Sect. 115. of giving information concerning the trade, dealings, estate, or effects (y) of the company ; and the Court may require any such officer or person to', produce any books, papers, deeds, writings, or other documents (j3) in his custody or power relating to the com- pany ; 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 (y) ; nevertheless, in cases where any person claims any lien on papers, deeds, or writings or documents produced by him, such production shall be without prejudice to such lien, and the Court shall have jurisdiction in the winding-up to determine all questions relating to such lien. (a) Gen. Order, Nov. 1862, Form 54. (7) Cf. ss. 117, 127. (/3) Cf. ss. 100, 165. By summons, not by subpccna. Order on application of liquidator : — of contribu- tory. This section is now supplemented by sect. 8 of the Comp. (W. Up) Act, 1890. Upon a special examiner being appointed for the purpose of any inquiries directed by the Court, any one in the position of an ordinary witness will, according to the ordinary practice, be summoned to attend before him by subpoena. But a witness summoned under this section is in a different position (p), and must be summoned by summons in the form given in Form 54 in the 3rd Schedule to the Eules of the 11th of November, 1862, and not by subpoena (q). The reason for this is, that the Court is to be satisfied that the person summoned is capable of giving the information ; and although the Court would probably be satisfied with even the suggestion of the official liquidator that he believes the person summoned to be within the section, yet the oflScial liquidator does not so represent the Court that he can issue a subpoena, but a special action by the Court is required through the medium of a summons at chambers. The summons may be issued by the Chief Clerk without a special authority from the judge (r). Where the liquidator applies for the order the application will be made ex parte, and not upon affidavit (as the object is to keep the proceedings secret from the person to be affected), but upon written statement. And it is not necessary to make out even a pj-imd facie case, a caSe of suspicion may be enough, the object may be to ascertain whether a suspicion is well founded or not, with a view to determining whether or not to bring an action (s). The application may equally be made by a contributory, but in such case he must give notice to the liquidator, for the liquidator is, so to speak, dominus litis, and in general if he is willing to take the proceedings the Court will let him have the conduct. But if he is not willing to proceed, the contributory may be allowed to do so (s). The contributory need not (p) Clement's Case, 13 Eq. 179, n. («/) English Joint Stock Bank, 3 Eq. 203; Gold Co., 12 Cli. DiT. 77, 82. (>■) Nowgong Tea Co., 16 L. T. 47. (s) Gold Co., 12 Ch. Div. 77. THE COMPANIES ACT, 1862. 301 adduce evidence in support of his application (f) ; but will generally be Sect. 115. required to do so (u), and quaere he ought always to make out a primd facie case (as). In a voluntary winding-up, where the majority of the shares were said ■to be held by the late manager and his nominees, and some of the manager's shares were registered as fully paid up, contributories, applying under this and the 138th section, were held entitled to an order to examine the manager as to these shares, when he had refused to give any information, and the liquidator had paid no attention to a request made to him that he would take out a summons. It was said in this case that a general order for examination should not be made, as the applicants, standing in no official position, were not under the control of the Court (y). Bat it is competent to the judge to commit the whole or some part of the examination to some creditor or contributory, and even where the liquidator takes the order to examine and does examine the witnesses, and there is no suggestion that he is not properly performing his duties, a contributory may be allowed to examine too (z). In a contest between two persons as to which is contributory in respect of certain shares, an order may be obtained under this section to procure evidence (a). Where the liquidator was one of the parties charged, a contributory, on making out a primd facie case and before instituting any proceedings, was allowed to summon the liquidator, who was the late secretary (b). The order is not a matter of right even on the liquidator's application (c). Order is not It is true that the application in this case was in a voluntary liquidation, "^J-'"'' °^ and that it was said that the order must be shewn to be "just and "^ beneficial " within sect. 138. But it is conceived that the case is of general application. The powers of the section are inquisitorial, and the Court will not allow them to be used for purposes of vexation and oppression. The section gives no right at all to liquidator, creditor, or contributory, but gives power to the Court if in its discretion it thinks right to exercise the power (u). Where, therefore, the party sought to be examined was defendant in an action brought by the company in liquidation, and he had already fully answered interrogatories in the action, and the liquidator made no special ease for further examination, the order was refused (c). And where the applicant was plaintiff in an action against the company, and the Court was satisfied that his object was to gain information, not for the more beneficial winding up of the company, but to assist him in his action, the examination for which the applicant had obtained an order was postponed till after the trial of the action (a). The matter is, however, essentially one for the discretion of the primary Discretion. judge, and the Appeal Court (knowing, as it must, much less of the affairs of the company than the judge who has the control of the winding-up) will be very slow, except in an extreme case, to interfere with his order (d). (i) Silkstone and Dodworth Co., Whit- worth's Case, 19 Ch. Div. 118. worth's Case, 19 Ch. Div. 118, 119. (a) Qverend, Chimey, and Co., E. p. (u) Imp. Cant. Water Corp., 33 Cii. Musgrave, 16 L. T. 378. Div. 314. (6) Sir John Moore Gold Mining Co., (ic) See in bankruptcy, E. p. Nicholson, 37 h. T. 242 ; 25 W. R. 900. 14 Ch. Div. 243. (c) Metropolitan Sank, Heiron's Case, (y) Penysyfiog Iron Mning Co., 30 L. T. 15 Ch. Div. 139. 861 ; W. N. 1874, 166. (d) Gold Co., 12 Ch. Div. 77. («) Silkstone and Dodworth Co., Whit- 302 THE COMPANIES ACT, 1862. Sect. 115. Notice to witness. Appeal by person summoned. Voluntary winding-up. Who may be summoned to give in- formation. But if the case be one of oppression, and particularly if the judge has decided on a wrong principle, as e.g. in holding that the order is matter of right, his decision may be reviewed (e) ; and so where the judge had refused the order, and the Appeal Court thought there was a case for investigation, they made an order (/). The witness is entitled to reasonable notice, but not necessarily to the forty-eight hours required by the 22nd rule of the Order of the 5th of February, 1861 (s). Some observations of the Court of Appeal in the Oold Co. Qi) go to shew that the person summoned to be examined has no locus standi to appeal against the order directing him to attend even where it has been obtained by a contributory, except in a case where the process of the Court has been abused Qi) ; although against an order which allows the section to be used oppressively and vexatiously an appeal will be entertained (i). But qucere whether the observations in the Qold Co. Qi) do not go too far {h). The Court will at the instance of the person summoned control the examina- tion Q). In a purely voluntary winding-up, motion having been made under sect. 138 for liberty to the liquidators to issue summonses, it was held to be the right course to give leave to take out a summons in chambers (m). The liquidator is not bound to do more than shew the Court that there is a prima facie probability that the person is capable of giving important information. He is not bound to shape his case, but may leave that to depend on the evidence («). A debt due to the company upon shares forms part of the effects of the company, and the circumstances under which shares have been entered on the register form part of the dealings of the company (o) ; and, therefore, any persons who possess any means of information on these subjects may be examined. And information which relates to the property of a contributory is information concerning the estate or effects of the company (p). The wording of the 127th section varies slightly from that of this section, and by the 127th power is expressly given to examine any person " 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." Orders have been made to compel information from : — the managing clerk of a bank with which a contributory had an account, and for the production of books and documents relating to the account (j) ; the broker, by whom a transfer was effected in a case in which the transferee was an infant, and a person of no substance (r) ; the sister and nephew of a contributory who («) Metropolitan Bank, Seiron's Case, 15 Ch. Div. 139. (/) Metropolitan Bank. Appeal Court, 28 Feb. 1882. (<;) North Wlieal Escmouth Mining Go., 11 W. R. 58; 31 Beav. 628. (A) Oold Co., 12 Ch. Div. 77 ; Silkstone and Dodworth Co., Wiiiworth's Case, 19 Ch. Div. 118. (0 Heiron's Case, 15 Oh. Div. 139; fmji. Cant. Water Corp., 33 Ch. Div. 314. (/() North Australian Territory Co., W, N. 1890, 124. (I) London Paper Mills, E. p. Scott, W. N. 1888, 63; North Australian Terri- tory Co., W. N. 1890, 124. (m) Mercantile Discount Co., W. N. 1866, 21. (»») Financial Insurance Co., Bloxam's Case, 36 L. J. (Ch.) 687 ; Mercantile Credit Association, Clement's Case, 13 Eq. 179, n. ; and see siipra. (o) Mercantile Credit Association, Cle- ment's Case, 37 L. J. (Ch.) 295; 13 Eq. 179, n. ; 18 L. T. 596 ; Swan's Case, 10 Eq. 675. (/)) Bloxam's Case, 36 L. J. (Ch.) 687 ; Trower and Lawson's Case, 14 Eq. 8. (S) Bloxam's Case, 36 L. J. (Ch.) 687 ; Druitt's Case, 14 Eq. 6 ; S. C, sub nom. Forbes' Case, 26 L. T. 680. (r) Clement's Case, 37 L. J. (Ch.) 295 ; THE COMPANIES ACT, 1862. 303 had been served with a balance order, but who could not be found, although Sect. 115. there was no evidence beyond the relationship to shew that the persons summoned could give any information (s) ; the mother-in-law of a con- tribiitory, under circumstances similar to those in the last case (<); a creditor of the" company who claimed for commission for service rendered and work done as agent for the company (u) ; brokers who entered into contracts for the company (x). But a mere creditor cannot be examined (y). A stockbroker, asserted to have acted improperly, wUl be examined as a matter of course as to the circumstances of a transfer (z). Any person indebted to a contributory is liable to be summoned to give information respecting the means of such contributory. Thus former partners of a contributory were compelled to attend to give evidence and to produce the ledger, cash-book, and cheque-book of the firm (a). The section is as applicable to matters occurring in the winding-up, as to matters before the winding-up (as). Witnesses summoned under this section, and refusing to attend, will be made to pay the costs of compelling their attendance (b). In In re Smith, Knight, & Go. (c), Gr. took an active part in the transfer without consideration of shares from C. to N., and supplied moneys for sub- sequent calls. The liquidators considering it material to trace these moneys, a summons was allowed to issue for the examination of the secretary of the bank with which G. had an account, and for the production of the books ; G-. being absent from England, and not expected to return. But it was left open to the witness, on attending the summons, to take any objection he thought proper to the inspection of the books. In In re Contract Corporation (d) the C. Company were judgment creditors of the T. Company, in which the G. and M. companies were large shareholders. The ofBoial liquidators of the C. Company, being unable to realise their judgment, were allowed to examine the shareholders in the T. Company with a view to shewing that the shareholders in the T. Company other than the G. and M. companies were mere nominees of the G. and M. companies, hoping, if they could establish this as the fact, to be able to carry a bill in Parliament to compel the G. and M. companies to take a transfer of the T. Company's line, and pay off its liabilities. The order in this case also was made without prejudice to any objection the witnesses might take on attending the summons. Where leave is given to continue an action (sect. 87) the plaintiff in the action cannot therefore escape examination in the winding-up, or refuse to answer questions relating to the matters in dispute in the action (e). A defendant (/) or a plaintiff {g) may be examined for the purpose of enabling the liquidator to form an opinion whether or not an action in which the company is plaintiff or defendant should be continued (/). But if the 13 Eq. 179, n. ; Baker's Case, E. p. Carter, (a) Trower and Zawson's Case, 14 Eq. 8. 19 W. E. 55 ; 40 L. J. (Ch.) 15 ; 23 L. T. (6) Trower and Zawson's Case, 14 Eq. 44.6. 8 ; Lisbon Steam Tramways Co., 2 Ch. (s) Swan's Case, 10 Eq. 675. D. 575. (0 Friaher's Case, 13 Eq. 178. (c) 4 Ch. 421. («) English Joint Stock Sank, 3 Eq. 203. (d) 6 Ch. 145. (») E. p. Carver, 47 L. J. (Ch.) 702, u. (e) E. p. Bateman, 15 W. R. 118, (y) Accidental and Marine Insurance 245; 15 L. T. 263, 495; W. N. 1866, Corporation, Mercati's Case, 5 Eq. 22. 378, 406. («) Baker's Case, E. p. Carter, 19 W. E. (/) Massey v. Allen, 9 Ch. D. 164. 55 ; 40 L. J. (Ch.) 15 ; 23 L. T. 446. ((/) E. p. Carver, 47 L. J. (Ch.) 702, u. 304 THE COMPANIES ACT, 1862. Sect. 115. Witness mny be attended by counsel. Ee-examina- tion. Public and others ex- cluded. What ques- tions must be answered. defendant lias already been interrogated in the action the liquidator will not be allowed to harass him with a further examination unless he makes out a strong case for it (h). A witness who attended several times under an order before a special examiner to whose appointment he had consented was not allowed to refuse to continue his evidence on the ground that his deposition might be used against him in a pending action commenced before the appointment of the special examiner (i). The witness is entitled to be attended at his examination by his counsel and solicitor (k). It is conceived that if he be a mere witness, and not a person between whom and the party summoning him any litigation is pending, he will not be entitled to the costs of employing a solicitor or counsel (I). Where an alleged contributory, summoned before the Chief Clerk as a witness, refused to be sworn, on the ground that it was important that he should have the assistance of counsel, it was held that he ought to submit to be sworn, and might then apply for the examination to be taken before the judge or an examiner where counsel could attend (m). The witness is entitled to be re-examined for the purpose of explaining the evidence given on his examination, and for the purpose of such re-examina- tion his counsel and solicitor are entitled'to take and carry away notes of his examination (n). The office of the examiner is a private office and not a public court. If the presence of the public is objected to, the examiner has no discretion to admit them (c/). And the object of the section is to enable the liquidator, or examining party, to acquire information. The proceeding is of a private character, and neither admitted creditors (who under Order 60 of the Gen. Order of Nov. 1862 are entitled at their own expense to attend proceedings) (p) nor creditors who have obtained an order giving them liberty to attend proceed- ings at their own expense (q) are entitled to be present. The Court may in its discretion no doubt allow persons to be present if it thinks proper (j>). Thus, on the examination of the manager of the B. Company in liquidation, the official liquidator of the C. Company (with which the B. Company had before it went into liquidation become amal- gamated), to whom leave had been given to attend all proceedings in the winding up of the B. Company, was, on an undertaking as to costs, allowed to attend and examine (f). The witness is summoned by the Court (s. 115) and examined by the Court (s. 117), and it is for the Court to say what questions may be put. No right is given to any one, although in general the person conducting the examination is trusted to put only such questions as are proper (s). The witness must answer questions which refer to mere hearsay, for the (/i) Metropolitan BunI:, Heiron's Case, 15 Ch. Di\'. 139. (i) Lisbon Steam Tramimys Co., 2 Ch. D. 576. (/j) In re Breech-loading Armoury Co., In re ]i!crc/iiints' Co.. 4 Eq. 453 ; E. p. Henry Calislicr, 17 L. T. 5; 15 W. R. 1007. (0 See in bankruptcy, E. p. Waddell, Be Lutsoher, 6 Ch. Dir. 328. (m) Electrio Telegraph Co. of Ireland, E. p. Bunn, 3 Juv. (N.S.) 1013; and see Nowgong Tea Co., 16 L. T. 47, noticed mpra. (n) Cambrian Mining Co., 20 Ch. D. 376. (o) Westm-n of Canada Oil Co., 6 Ch. D. 109. (p) Grey's Brewery Co., 25 Ch. D. 400. (q) Norwich Equitable Co., 27 Ch. Div. 515. 0') Empire Assurance Corporation, 17 L. T. (N.S.) 488. (s) Nm-th Australian Territory Co.,W. N. 1890, 124. THE COMPANIES ACT, 1862. 305 object of the section is to enable the liquidator to get at the facts, and Sect. 11 5. hearsay evidence may be valuable as tending to put him on the right inquiries (t). The only matters as to which the witness can refuse to answer are matters in which he may incriminate himself, and matters involving professional confidence. If the question involves disclosure of matters with which the litigant parties have nothing to do, he may appeal to the judge to release him from answering the question, but the decision of the judge ought to be final, and not subject to appeal (u). On these principles, where a contributory, who had executed a composition deed, was asked whether he had not promised some of his creditors to pay them more than the composition as an inducement to them to execute the deed, an objection to the question on the ground that it was obviously put with a view to obtain grounds for setting aside the deed, and that this was a matter in which the Court of Bankruptcy had exclusive jurisdiction, was held untenable (u). Depositions taken under this section may be read on a summons as evidence '^^^ deposition* against the deponent ; but, semble, notice should be given of the intention to j,„i„gt read them (x). They are not evidence, and cannot be read against any one deponent, else («/). The liquidator is not bound to file them (z). QucBre : The examination may be taken by a short-hand writer, and the Short-hand transcript read over to and signed by the witness (a). writer. Where the solicitors of the company have a lien for costs on documents re- Solicitors' lating to the company in their possession, the oficial liquidator may, never- li«°— P™- theless, by summons under this section, compel their production. Por the official liquidator represents not only the company, but also the creditors of the company, and does not therefore stand simply in the position of a client asking production against his solicitor without having paid his solicitor's bill. The production will be without prejudice to the lien, but will practically, of course, in many instances, render the lien valueless (6). A special examiner is now so seldom appointed that the following cases Special are not of much importance. examiner. The ordinary rule as to the appointment of a special examiner is that he is not appointed until all persons interested in the appointment have been beard thereon. Accordingly it has been held that a person who had given evidence by affidavit in opposition to a summons to place him on the list of contributories, and who had not consented to the appointment of the special examiner who had been appointed to take the examination of witnesses in the winding-up, could not be required to attend and be cross-examined before him on his affidavit (c). With respect to examination under this section, the two cases next cited leave the practice somewhat doubtful. (t) Ottormn Co., 15 W. R. 1069. 54 L. J. (Ch.) 506 ; 33 W; E. 444 ; ije («) K p. Webber, 26 L. T. 227 ; 41 L. J. Brunner, W. N. 1887, 144. (Ch.) 145 ; 20 W. K. 195, 394 ; Silkstone (a) Sir John Moore Mining Co., W. N. and Dodworth Co., Whitworth's Case, 19 1878, 87. Ch. Div. 118, 121. (6) South Essex Estvary Co., E. p. (x) Ptigh and Sharman's Case, 13 Eq. Paine and Layton, i Ch. 215 ; see further 566 ; E. p. Mil, 19 Ch. D. 580. note to s. 110 and Gen. Order, Nov. 1862, (y) Norwich Equitable Co., 27 Ch. Div, Rule 58 ; of. Cameron's Coalbrook Co., 25 515. Beav. 1. (z) Grey's Brewery Co., 25 Ch. D. 400 ; (c) In re Smith, Knight, ^ Co., 8 Eq. Great Western Coal Co., W. N. 1885, 37 ; 23. 306 THE COMPANIES ACT, 1862. Interroga- tories. Directors. Sect, 116. An ex-director of a company, who had not consented to the appointment of the special examiner, was summoned to give evidence respecting the affairs of the company. He objected that he had had no voice in the appointment of the examiner. Eomilly, M.E., there said that the statute does not say that persons who are deemed capable of giving information respecting the affairs of the company shall be examined before a special examiner to whose appoint- ment they have not consented, and directed an application to be made in chambers respecting the appointment of a special examiner to take the examination (d). But where H., on being summoned, while admitting that he had no objection to the examiner, refused to go before him on the ground that he was entitled to be heard with reference to his appointment, Eomilly, M.E., said that he would not allow a mere captious objection to an examiner to prevail, that H. was merely a witness (and not a person between whom and the liquidator proceedings were pending in respect of which his examination might give information), and was not entitled to be heard upon the subject, and that he must therefore go before the examiner (e). Directors do not cease to be ofiScers of the company at the commencement of the winding-up (/), so as to be able to refuse to answer interrogatories administered by the defendant in an action brought by the official liquidator to recover arrears of calls (g). And for the purpose of appealing from the winding-up order, semble, they must from the necessity of the case be still able to act notwithstanding that a liquidator has been appointed (A). Between petition presented and order made they can no doubt still receive and give a discharge for moneys payable to the company (i). 116. If, after an order for winding up in the Court of the 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 order 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 thinks fit, be tried in 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 (o) in the case of disputed debts and claims of creditors. (o) s. 108. This section is as follows : 0. 32, Interpleader in Equity.'] " When any claim is made to or in respect of any goods and chattels, or the proceeds or value thereof, sold or intended to be Special pro- visions as to Court of Vice-Warden of the Stan- naries. 18 Vict. c. 32, a. 11. 18 Vict, s. 11. (d) Satmum's Case, 15 Sol. J. 491. (e) Contract Corporation, 13 Eq. 27. (/) See also Landowners' Co. v. Ashford, 16 Cli. D. 411, 426, 429-432. (3) Madrid Bank v. Bayley, L. E. 2 Q. B. 37. (A) Diamond Fuel Co., 13 Ch. Div. 400. (>') Mersey Steel Co. v. Naylor, Benzon, 4f Co., 9 Q. B. Dir. 648; 9 App. Gas. 434, 440. ^^ THE COMPANIES ACT, 1862. 307 sold, under a customary decree of sale in a mining creditor's suit, by any Sect. 117. landlord for rent or other distrainable demand, or by any other person not - being a party to the suit, it shall be lawful for the Vice-Warden to call upon the claimant by rule or order of the Court to appear in person or by his attorney or agent in support of the same, either before the Vice- Warden himself or before the registrar, and to state the nature and particulars of his claim, -who shall thereupon hear the allegations and receive the proofs offered as well by the claimant as by the plaintiff in the suit, and if the claimant and plaintiff shall agree on the facts of the case, shall then adjudicate upon the claim ; and if the said parties shall not so agree, then the disputed facts shall be ascertained by an action or issue to be tried in the Vice- Warden's Court, in such form as the Vice- Warden shall direct, and the Vice- Warden shall then adjudicate upon the claim : or the Vice- Warden or registrar shall have power, with the consent of the parties so before him, their counsel, attorneys, or agents, to adjudicate upon and dispose of the claim in a summary manner : Provided that in all cases, except in a case of summary adjudication by consent, it shall be competent for the registrar, at the reqtuest of the said parties, or either of them, to refer the decision of the case to the Vice- Warden ; and the Vice- Warden shall in all cases of such interpleader make such other rules and orders in the matter of the said claim or adjudication as between the said parties in respect thereof, or of the costs of the proceedings, as to him shall seem fit and reasonable." 117. The Court may examine upon oath, either by word of Examination mouth or upon written interrogatories, any person appearing or u^^n"^^'!* brought before them in manner aforesaid (a) 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. (o) s. 115. 118. The Court may, at any time before or after it has made Power to an order for winding up a company, upon proof being given that ^'P^' '""^' there is probable cause for believing that any contributory (a) to about to'*' such company is about to quit the United Kingdom, or otherwise oJ^™"''' ■emove i. i a > or to remc abscond, or to remove or conceal any of his goods or chattels, for °>-' conceal the purpose of evading payment of calls, or for avoiding exami- property.' nation in respect of the affairs of the company, cause such contributory to be arrested, and his books, papers, moneys, securities for moneys, goods, and chattels to be seized, and him and them to be safely kept until such time as the Court may order. (a) s. 74. In In re Imperial Mercantile Credit Co. (k) the section was read in the alternative, and an order made for the seizure of goods, &c., while the Court declined to make an order for arrest on a mere hearsay statement of the intention of the contributory to leave the United Kingdom. This section affects only the goods and chattels of the contributory. (4) 5 Eq. 264 ; and see Cotton Plantation Co. of Natal, W. N. 1868, 79. x2 308 THE COMPANIES ACT, 1862. Powers of Court cu- mulative. Sect. 119. There is no section by wWcli his real estate is affected, but any claim upon it is left to be established according to the general law of the kingdom (I). 119. Any powers by this Act conferred on the Court shall be deemed to be in addition to and not in restriction of any other power subsisting, either at law or in equity, of instituting pro- ceedings against any contributory, or the estate of any contribu- tory, or against any debtor of the company, for the recovery of any call or other sums due from such contributory or debtor, or his estate, and such proceedings may be instituted accordingly. Power to enforce orders Power to order con- tributories in Scotland to pay calls. Enforcement of and Appeal from Orders. 120. 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 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 within the jurisdiction of such Court, and for the last-mentioned purposes the jurisdiction 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. 121. 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 con- tributories liable in payment of any calls which they may wish to enforce, and of the amount due by each contributory respectively, and of the date when the same became due, to pronounce forth- with 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 anmim, 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 obligation to pay such calls and interest; and such decree may be extracted immediately, and no suspension thereof shall be competent, except on caution or consignation, unless with special leave of the Court or Lord Ordinary. (0 See also s. 114. THE COMPANIES ACT, 1862. 309 122. Any order made by the Court in England for or in the Sect. 132. course of the winding up of a company under this Act shall be oider made enforced in Scotland and Ireland in the Courts that would re- '" England to be eu- spectively have had jurisdiction in respect of such company, if the forced in registered office of the company had been situate in Scotland or gjot*]"^^""'' Ireland, and in the same manner in all respects as if such order had been made by the Courts that are hereby required to enforce the same ; and in like manner orders, interlocutors, and decrees made by the Court in Scotland for or in the course of the winding up of a company sball be enforced in England and Ireland, and orders made by the Court in Ireland for or in the course of winding up a company shall be enforced in England and Scotland by the Courts which would respectively have had jurisdiction in the matter of such company if the registered office of the company were situate in the division of the United Kingdom where the order is required to be enforced, and in the same manner in all respects as if such order had been made by the Court required to enforce the same in the case of a company within its own j urisdiction. An order by the Court in Ireland, or in Scotland, when brought over here to be enforced, must be made an order of that Court which would have had jurisdiction to wind up the company if it had been registered here. And therefore, where winding-up proceedings in the Court of Chancery in Ireland had been remitted under sect. 81 to the Court of Bankruptcy in Ireland, the order of the last-mentioned Court when brought here to be enforced was made an order of the Court of Chancery, not of the Court of Bankruptcy (m). So in the Glasgow Bank (n) an order for a call made by the Court of Session in Scotland was made an order of the Chancery Division in England in order to enforce it against contributories in England. After a winding-up order has been made in England, an order to restrain actions in Ireland or Scotland may be granted in England. For the Act applies to the United Kingdom, and by virtue of this section the order may be enforced if made (o). The Court has no jurisdiction to give leave to serve notices of orders and other proceedings in the winding-up on persons out of the jurisdiction (p). But this applies only to orders and proceedings which it is desired to enforce. Notice of an appointment to settle the list of contributories may be served out of the jurisdiction in manner provided by E. 30 of the Gen. Order of Nov. 1862 (2). Leave was in an earlier case given to serve a summons in the winding-up paitie t f on officials of the company resident in Scotland, the object of the summons the jurisdic-" apparently being to render the respondents liable under sects. 100, 165 (r). tion. (m) Hollyford Copper Mining Co., 5 Ch. Co., Eamsay's Case, 36 Ch. D. 502. ^3. ( n) Anglo-African Steamship Co., 32 Ch. (n) 14 Ch. D. 628 ; Scottish Pacific Co., Div. 348. W. N. 1886, 63. (g) Nathan Nevman ^ Co., 35 Ch. Div. 1 ; (0) International Pulp Co., 3 Ch. D. Liebig's Cocoa Works, W. JS. 1888, 120. 594 ; Middlesborough Firebrick Co., W. N. (r) British Imperial Co., 5 Ch. D. 749 ; 1885, 7; 52 L. T. 98; Hermann Loog ^ Household Insurance Co., W. N. 1878, 26. 310 THE COMPANIES ACT, 1862. Sect. 123. Security for costs. Mode of dealing with orders to be enforced by other Courts. Appeals from orders. A person resident out of the jurisdiction who comes in and proves under " the winding-up is thereby probably brought within the authority of the Court (s), but of course if an order is made against him it may not be enforceable. Notwithstanding this section a claimant in a winding-up resident in Scot- land may be called on to give security for costs (0- 123. Where any order, interlocutor, or decree made by one Court is required to be enforced by another Court, as hereinbefore provided (a) an office copy of the order, interlocutor, or decree so made shall be produced to the proper officer of the Court required to enforce the same, and the production of such office copy shall be sufficient evidence of such order, interlocutor, or decree having been made, and thereupon such last-mentioned Court shall take such steps in the matter as may be requisite for enforcing such order, interlocutor, or decree in the same manner as if it were the order, interlocutor, or decree of the Court enforcing the same. (o) ». 122. 124. Eehearings of and appeals from any order or decision made or given in the matter of the winding up of a company by any Court having jurisdiction under this Act may be had in the same manner and subject to the same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction ; subject to this restriction, that no such rehearing or appeal shall be heard unless notice of the same is given within three weeks after any order complained of has been made, in manner in which notices of appeal are ordinarily given, according to the practice of the Court appealed from, unless such time is extended 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 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, documeuts, 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 passed in the eighteenth year of tiie reign of Her present Majesty, chapter thirty-two, (s) E. p. Sokrtson, 20 Eq. 733, in (i) Howe Machine Co., Fontaine's Case, bankruptcy. 41 ch. D. 118. THE COMPANIES ACT, 1862. 311 and any order so made by the Court of Appeal in Chancery shall Sect. 124. be final without any further appeal. This section refers to a re-hearing by way of appeal, and not to re- Ee-heaiing of hearings by the Court of Appeal of orders made by itself. The limit of appea'' time therefore did not apply to a re-hearing of the latter kind (u). Where an order has been made in chambers and application is made in Application Court to discharge it, the analogy of this section will be followed, and as *^^^^^^jf/^^ a general rule the application should be made within twenty-one days (x). gy^^^. In reckoning these twenty-one days in an action (and qucere in a winding-up also, see post), the analogy of Order LVIIL, E. 15, is to be applied, so that if the appeal be from a refusal, the time will run from the date of the refusal, while if it be from an order, the time will run from the date of the order being drawn up («/). Some indulgence in respect of re-hearing was allowed in winding-up Re-hearing proceedings, inasmuch as the issues are not so distinctly brought out in when allowed ; them as in cases brought before the Court by means of regular pleadings (z) : and the time limited for appeal is short (a). Where important documents were discoyered after the case had been argued, the Court granted a re-hearing upon terms as to costs (z). In He Universal Banh (V) Lord Cranworth, L.C., expressed an opinion of winding-up that this section does not apply to any order made on the original petition petition. for winding up, but only to orders made under an existing order to wind up. But in a subsequent case (c) the Court of Appeal refused to treat this as a binding authority, pointing out that the application was ex parte, and that nothing was done upon it beyond giving a direction to the secretary to receive the petition of appeal. It is now settled that under this section and Order liVIII., Eules 9, 15, an appeal from an order made on a winding-up petition must be brought within twenty-one days (c). Under the old practice the three weeks were to be computed from the Date of order, date at which the order was pronounced, not from that at which it was drawn up; and an appeal was held to be too late when brought beyond three weeks from the former, though not from the latter period (d). The words of this section being " within three weeks after the order complained of has leen made," quaere, whether, having regard to Order LVIII., Eules 9, 15, the three weeks are now, in the case of an order, to be computed from the date at which the order is pronounced. It is submitted that as between this section and the rules referred to, the latter, which are latest in date, must prevail. An application for an extension of the time within which an appeal may Extension of be presented need not necessarily be made within the period of three weeks time. limited by this section for giving notice of appeal ; but the Court of Appeal has power, notwithstanding the expiration of the three weeks, to extend the (m) Sretfs Case, 29 L. T. 255 ; S. C. (6) 1 Ch. 428, following Anglo-Gali- 8 Ch. 800 ; E. p. Besley, 3 Mac. & G. 287. fornian Gold Mining Co., 1 Dr. & Sm. 628 ; {x) JElham Valley Co., Dickson's Case, decided under s. 33 of the Winding-up Act, 12 Ch. D. 298 ; and see Dickson v. Har- 1849 (12 & 13 Vict. c. 108). risen, 9 Oh. Div. 243 ; cf. E. p. Learoyd, (c) National Funds Assurance Co., 4 Ch. 10 Ch. Div. a. Div. 305. (y) Eeatley y. Newton, 19 Ch. Div. 826. (d) Sisca Coal Co., E. p. Hookey, i D. F. {z) Wiltshire Iron Co., E. p. Pearson, & J. 456 ; and see E. p. Dudley 3 Ch. 443 ; see also Burkinshaw v. Nicolls, Co., Be Hopkins, 3 D. J. & S. 456 ; 9 Jur. 3 App. Cas. 1004. ' (N.S.) 702 ; E. p. Hinton, 19 Eq. 266, in (a) Craig v. Phillips, 7 Ch. Div. 249. bankruptcy. _ 312 THE COMPANIES ACT, 1862. Sect. 124. time and allow an appeal to be presented (e), and will exercise the power where necessary to secure justice, e.g., where three out of six persons who were held jointly and severally liable (being the three who as between the six were prima, facie primarily liable) appealed on the last day without the knowledge of their fellows (/). But the object of the Act is, that matters may be settled speedily, and, therefore, after the expiration of the time, leave to appeal will not be given except under special circumstances (jr). So under the old practice with applications io inrol orders with a view to appeal to the House of Lords (A). Where the intending appellants had from the first expressed their inten- tion of appealing, but from a slip, and by reason of a bond fide mistake, had allowed the time to expire, the Court gave leave (i), and a notice, which was in form not a notice of appeal but a notice of intention to appeal, has been held sufficient though informal {k). And so where a notice of appeal was given wrong in point of form Q). The person who applies for an extension of the time to appeal must show, not an equity properly so called, but something which entitles him to ask for the indulgence of the Court to relieve him from the legal bar that is imposed by the orders and Act of Parliament (m). It need not be an equity arising from the conduct of the respondent. Mistake by the appellant (n) or the necessity of the case in order to secure justice (/) may be a ground for extending the time without misconduct by the respondent. Where an order is, by a subsequent decision of a Court of higher autho- rity, shewn to be erroneous in point of law, but the error is not discovered till the time of appeal has elapsed, the Court may think it right to give an opportunity of appeal (o), but it is not a matter of course to do so : special circumstances must be shewn {p). In the absence of special circumstances a litigant who has obtained a judgment, which by expiration of the time limited for appeal has become absolute, ought not to be deprived of it (p). At any rate, it ought to be shewn tRat after the judgment from which it is desired to appeal there has been a decision of a Court of higher jurisdiction by which the law which has been previously unsettled, has been entirely settled. At the same time leave to appeal may be more readily given where, as in winding-up cases, the time limited for appeal is short, and also where there are accounts pending and assets undistributed (j). A different decision arrived at by a Court of co-ordinate jurisdiction is not a sufficient ground for extending the time (r). Where two persons were, upon similar facts, settled by the M.E. on the list of contributories, and one of them upon appeal obtained a reversal of the order, and then (the time having expired) the other applied to the M.E. for a re-hearing, the application was said to be unnecessary, for all orders similar to that reversed on the appeal would be reversed in chambers (s). (/) Banner v. Johnstmi, L. E. 5 H. L. (() Munns v. Bu^-n, 34 Ch. Div. 664. 157 ; Manchester Economic Society, 24 Ch. (m) 24 Ch. Div. 499. Uiv. 488. (n) Keio Callao, 22 Ch. Div. 484 ; Man- (/) Clayton Mills Co., 37 Ch. Div. 28, chesta- Economic Society, 24 Ch. Div. 488. (g) In re Bastow, 37 L. J. (Ch.) 51; (o) Ebbw Vale Co.'s Case, 5Ch. 112; and Madras Irrigation Co., 23 Ch. Div. 248; see E. p. Holroyd, 15 3m: 696; cf.Barned's Esdaile v. Payne, 40 Ch. Div. 620, 533, 534. Banking Co., E. p. Bank of England, 22 (A) Laffitte 4- Co., 10 Ch. 316 ; Browne's L. T. 895. Case, 20 Eq. 639. (p) Esdaile v. Payne, 40 Ch. Div. 520, (»■) International Life Assurance Society, 533, 534. L. C. and L. J. J. )7th Dec. 1874; Taylor's (5) Craig v. Phillips, 7 Ch. Div. 249 Case, 8 Ch. Div. 643. (r) Hull Forge Co., 15 W. R. 474; 36 (A) Little's Case, 8 Ch. Div. 806 ; but see L. J. (Ch.) 337. New Callao, 22 Ch. Div. 484. (s) E. p. Munday, 31 Beav. 206. THE COMPANIES ACT, 1862, 313 On the 28th May, 1880, an order was made to wind up an unregistered Sect. 124, mutual marine insurance society : the petition was served at the abandoned office of the company : no one appeared to oppose : the petition did not state, as the fact was, that the number of members exceeded twenty. In November, 1881, a member heard for the first time of the order, and within a week applied for leave to appeal against it. Leave was given (0- Where an appellant in bankruptcy had not given notice of appeal until the last day allowed for the purpose, the Court gave the respondent leave to present a cross-appeal, although the time limited for appealing had expired (m). The time will not be extended on an ex parte application (x) : if exception Ex parte is made in this respect the benefit of any objection will be reserved to the apiilication. respondent at the hearing of the appeal (y). This section does not, by reason of the three weeks having expired, inter- Order which fere with the power of the Court to discharge an order which was in fact a was a nullity. nullity, by reason of its having been obtained at the instance of an alleged contributory whose name has since been removed from the register of share- holders (z). And so, under the Act of 1848, it was held that the restriction as to the time of appealing did not apply to an appeal brought on the ground that there had been no jurisdiction to make the order appealed from (a). But it may be that the order of the Court below must be taken as determining that it had jurisdiction, and is therefore to be treated as an erroneous order open to appeal in the usual way (f). But, unless want of jurisdiction be shewn, it is conceived that an order. Order binding against which notice of appeal has not been given within the three weeks, "°l«ss must, unless the Court of Appeal grant an extension of time, be treated in "PP^'"*^™' all future proceedings as a valid order (5) ; and the intention of the Act being that all questions should be settled speedily, any proceedings whereby the limit of time might be evaded, as by a re-hearing in the Court of first instance (c), would not probably be favourably regarded. Where a person has been settled on the list of contributories in a winding- Delay for three up under supervision, after disputing with the liquidators his liability to weeks. be put upon it, it has been said that he ought by analogy to this section to -^"^'"Sy- apply to the Court within three weeks to alter the decision of the liquidators (d). Semble, the liquidator ought not to appeal against an order made in the Appeal by winding-up without first obtaining the leave of the judge to whose Court liquidator. the winding-up is attached (e); if he wishes to be safe as to costs he will do well to apply for leave (/). (t) Fadstow Association, 20 Gh. DW. 137. & J. 20, in bankruptcy; and with K p. (m) S. p. Kiveton Coal Co., In re Phillips, Brown, Be Jeavons, 9 Ch. 304, contrast K 7 Ch. 730. p. Keighley, 9 Ch. 667 ; E. p. London and (x) Lama Italian Coal Co., 16 L. T. County Banking Co., 16 Eq. 391, under the 258 ; but see E. p. Besley, 3 Mac. & G. 287. Bankruptcy Act, 1869. See also Sanderson's ((/) Evil Eorge Co., 15 W. K. 388, 474 ; Case, 1 Mac. & G. 306 ; 1 H. & Tw. 486 ; National Funds Assurance Co., 4 Ch. Div. and 3 De G. & Sm. 66 ; and E. p. Besley, 305, in both of which cases the preliminary 3 Mac. & G. 287. objection, that the time for appealing had (d) E. p. Trory^s Executors, 17 L. T. expired, prevailed at the hearing. 198. But this was a mere dictum ; there Qs) Estates^ Investment Co., E. p. Turn- had been acquiescence for two years j cf. ley and Oliver, 8 Eq. 227. Elham Valley Co., Dickson's Case, 12 Ch. (a) Blumstead Water Co., 2 D. F. & J. 20. D. 298. (6) See Welsh Potosi Co., E. p. Clarke, (e) Trent and Humber Ship Building Co., 2 De G. & J. 245 ; E. p. Carter, 1 D. M. E. p. Cambrian Steam Packet Co., 17 W. K. & G. 212 ; Carter v. Dimmock, 4 H. L. C. - 181 ; reported also 4 Ch. 112. 337 ; and see supra, p. 289. (/) City Investment Co., 13 Ch. Div. (') See Plumstead Water Co., 2 D. F. 475, 483. 314 THE COMPANIES ACT, 1862. Wlio may appeal. Sect. 124. Where leave to appeal was supposed to be necessary (^)— as where creditors desired to appeal against the order made on a summons by alleged contributories whereby their names were struck out of the list — ^it was held that the leave to appeal must be obtained from the judge of first instance, and then an extension of time (if the time had expired) from the Court of Appeal (7j). It would seem that creditors or contributories who appeared below may appeal— as where contributories appealed from a winding-up order with which the petitioner was satisfied (i) — and that besides the official liquidator and the parties to the application in the Court below, any creditor or contri- butory of the company may appeal without leave obtained for the purpose (k). The company by its directors may appeal from a winding-up order notwith- standing that a liquidator has been appointed (T). A contributory who has been settled on the list may make an original motion to settle other persons on the list as well (m), and a contributory may by leave appeal from an order excluding another contributory from the Kst (re)- Under the former Winding-up Acts, motions by contributories have been entertained seeking to discharge orders of the Master, e.g., an order allowing a claim against the company (o), and an order removing a name from the list of contributories (p) ; and in Ireland it has been said that a creditor can appeal without leave against an order excluding contributories from the list (?). If the official liquidator appeals, it may perhaps be gathered from Ship's Case (ti) that a contributory cannot appeal too without leave — for in general the Court will not in proceedings in the winding-up hear contributories as well as the official liquidator (?■)— but otherwise it would seem from the Irish case referred to (s) that it is competent to any creditor or contributory to appeal. By Order LVIII. E. 4, as it stood in 1879, fourteen days' notice was to be given of appeal from a "judgment whether final or interlocutory," and four days' notice of appeal from any "interlocutory order." A decision upon summons in winding-up which finally determined the rights of the parties required a fourteen days' notice (i). Qucere, it may be called an " interlocu- tory judgment." The language of the present rule (Order LYin. E. 15) is different. The appeal from an order made by the County Court in the winding up of a company under the Industrial and Provident Societies Act, 1862 (25 & 26 Vict. c. 87), under sect. 17 of that Act, was to the Court of Chancery, not to a superior Court of common law (u), (iv. 77; of. in bankruptcy, i'. p. Walter, 2 Ch. Div. 326. (0 Diamond Fuel Co., 13 Ch. Div. 400. (m) Bush's Case, 6 Ch. 246 ; Murray v. Jhis/i, L. E. 6 H. L. 37. (m) Ship's Case, 2 D. J. & S. 544; Duwnes v. Ship, L. R, 3 H. L. 343. (o) Sea Fire Assurance Co., E. p. Gwmi, 65. 1 Jiir. (N.S.)300. Length of notice of appeal. Appeal from County Coui t order made under 25 & 26 Vict. c. 87, s. 17. (p) Blackburn's Case, 3 Drew. 409; 8 D. M. & G. 177. (q) Etna Insurance Co., E. p. National Provincial Bank of England, 1. E. 7 Eq. 362. ()■) S'orwich Yam Co., 13 Beav. 426, 428 (a); Bodmin United Mines Co., 23 Beav. 373, 385; Continental Bank Cor- poration, E. p. Zondon and County Bank, W. N. 1867, 84; and see supra, p. 247. (s) Etna Insurance Co., E. p. National Provincial Bank of England, I. E. 7 Eq. 362. (0 Stockton Iron Co., 10 Ch. Div. 335, 348. (u) Henderson v. Bamber, 35 (L. J. (C.P.) THE COMPANIES ACT, 1862. 315 125. In all proceedings under this part of this Act, all Courts, Sect. 125. judges, and persons judicially acting, and all other officers, judicial judicial or ministerial, of any Court, or employed in enforcing ^"^^"^ *° ^^ the process of any Court, shall take judicial notice of the signa- signature ture of any officer of the Courts of Chancery or Bankruptcy in °^ °^<=*''^- England or in Ireland, or of the Court of Session in Scotland, or of the registrar of the Court of the Vice- Warden of the Stan- naries, and also of the official seal or stamp of the several offices of the Courts of Chancery or Bankruptcy in England or Ireland, or of the Court of Session in Scotland, or of the Court of the Vice- Warden of the Stannaries, when such seal or stamp is appended to or impressed on any document made, issued, or signed imder the provisions of this part of the Act, or any official copy thereof. 126. The Oommissioners of the Court of Bankruptcy and (a) Special com- the judges of the County Courts in England who sit at places ^IfreTeTvLg more than twenty miles from the General Post Office, and the e-fWence. commissioners 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 aay person hereby appointed 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 examining witnesses, and requiring the production or delivery of documents, and certifying or punishing defaults by witnesses, which he might lawfully exercise as a commissioner of the Gowrt of Banhruptcy (a), judge of a County Court, commissioner 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 witnesses, and requiring the pro- duction or delivery of documents, and punishing defaults by witnesses, and allowing costs and charges and expenses to witnesses, as the Court which made the order for winding xip the company has; and the examination so taken shall be re- turned or reported to such last-mentioned Court in such manner as it directs. (a) Struck out by Statute Law Revision Act, 1875. 127. The Court may direct the examination in Scotland of any Comt may 316 THE COMPANIES ACT, 1862. Sect. order the examination of persons in Scotland. 128. 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 (a), and the order or com- mission 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 such 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 possession or power, and the sheriff may take such examination either orally or upon written interrogaton'es, 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 commissioners under appointment from the Court of Session and as witnesses and havers are entitled to in the like cases according to the law and practice of Scotland; If any objection 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. Affidavits, &c.| may be sworn in Ireland, Scotland, or the colonies before any competent (a) Cf. s. 115. 128. Any affidavit, affirmation, 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, THE COMPANIES ACT, 1862. 317 judge, or person lawfully authorized to take and receive affidavits, Sect. 129. affirmations, or declarations, or before any of Her Majesty's consuls Couit or or vice-consuls, in any foreign parts out of Her Majesty's dominions, P"'s™' and all Courts, judges, justices, commissioners, and persons acting judicially, shall take judicial notice of the seal or stamp or signa- ture (as the case may be) of any such Court, judge, person, consul, or vice-consul attached, appended, or subscribed to any such affidavit, affirmation, or declaration, or to any other document to be used for the purposes of this part of this Act. Volimtary Winding-up of Company. 129. A company under this Act (a) may be wound up volun- Circumstances , .1 under which tai Hy, company may (1.) Whenever the period, if any, fixed for the duration of the ^^ wound up company by the articles of association expires, or when- ever the event, if any, occurs, upon the occurrence of which it is provided by the articles of association 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 resolution (/3) requiring the company to be wound up voluntarily : (3.) Whenever the company has passed an extraordinary reso- lution (y) 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 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 (j3). (a) But not an " unregistered company," (j8) s. 51 ; registration, s. 53 ; and ad- si. 119 (2); (and see note to s. 199); ex- vertisement, s. 132. cept it be a society registered under the (y) Registration, s. 53, note ; advertise- Industrial and Prov. Soo. Act, 1876 ; see ment, s. 132. 39 & 40 Vict, c. 45, s. 17. A special resolution (see sect. 51) is a resolution passed by the statutory Sub- sect. (2). majority at one meeting, and confirmed after a certain interval at a second. A company may, therefore, under clause (2), by a resolution so passed and confirmed, agree to wind up voluntarily. A voluntary winding-up may also be initiated, under clause (3), by a Sub-sect. (3). resolution passed at one meeting, and not requiring confirmation at a second ; but if it is under this clause that it is intended to proceed, the notice (see sect. 51) of the meeting must specify the intention of proposing Notice. a resolution to the effect in this clause mentioned, viz., that it has been proved to the satisfaction of the company that it cannot, by reason of its 318 THE COMPANIES ACT, 1862. Sect. Winding-up resolution associated with resolutions ultra vires. Injunction to restrain voluntary winding-up. 139. liabilities, continue its business, and that it is advisable to wind up the same; and unless a sufiScient notice has been given to draw the share- holders' attention to the intention of proposing such a resolution, a voluntary winding-up commenced by the passing of such resolution will be invalid. Tor the shareholders' attention ought to be distinctly drawn to the fact that it is, not a preliminary resolution, requiring confirmation, and which might, therefore, be opposed at the meeting called to confirm it, but a final resolu- tion that it is proposed to pass (a;). A notice in the words of sub-seotion (3) is sufficient (y). But a notice of a meeting " To take into consideration the present position of the company's affairs and the desirability of bringing its operations to a close, and to pass a resolution for the voluntary winding up of the company should it be determined to do so," and to appoint liquidators, is not sufficient for the purpose of an extraordinary resolution (z). A winding-up resolution, which is in itself valid, is not invalidated by the fact of there being associated with it resolutions which have not been regularly passed; and quaere, whether it would be invalidated if such resolutions were even ultra vires (a). The dictum of Turner, L. J., in In re Imperial Sank of China, &c. (6), that if the winding-up was part of a scheme which, was in itself ultra vires, then the winding-up resolution must fall with the scheme, is not borne out by the order in that case; for the order enabling a shareholder to file a bill in the name of the company was one which the Court had no jurisdiction to make except under sect. 138, upon the footing that there was a voluntary winding- up (c). And where a resolution was passed and confirmed, " That for enabling the said agreement and the amalgamation thereby agreed on to be carried into effect, the said Financial Corporation, Limited, shall be wound up volun- tarily," and the amalgamation was held invalid {d), the resolution for winding-up was nevertheless held to be valid (e). So where five resolutions were passed the first of which was in the words of sub-section (3), the second was for voluntary liquidation, the third for the appointment of a liquidator, and the fourth and fifth adopted a certain agreement which was said to be ultra vires and directed the liquidator to carry it out, the first three resolutions were effective whether the foiirth and fifth were binding or not (/). The validity of a transfer or amalgamation cannot be decided under the winding-up jurisdiction, but must be ascertained in a suit properly instituted for the purpose {g). An injunction to restrain the shareholders from exercising their statutory right of winding up the company is, it is submitted, except under very ex- ceptional circumstances, out of the question. The case in which the question arose was one in which the plaintiffs claimed to be entitled to an allotment of certain shares, and asked an injunction to restrain a voluntary winding-up (ic) Bridport Old Brewery Co., 2 Ch. 191 ; and see s. 51 as to "notice." (y) Stone v. City and County Bank, 3 0. P. D. 282. (x) Sil/istone Fall Colliery Co., 1 Ch. Div, 38. (a) Irrigation Co. of France, E. p. Fo.v, 6 Ch. 176. (b) 1 Ch. 339. (o) See E.p.Fo.v, 6 Ch. 184, 190; Cleve V. Financial Corporation, 16 Eq. 363, 377. (rf) Clinch V. Financial Corporation, 5 Eq. 450 ; 4 Ch. 117. (e) Cleve v. Financial Corporation, 16 Eq. 363. (/ ) Stone V. City and County Bank, 3 C. P. Div. 282, 307, 313. (g) Imperial Bank of China, ^c, 1 Ch. 339, 347 ; Mnandal Corporation, W. N. 1866, 162; International Life Ass. Soc, 20 L. T. 433. THE COMPANIES ACT, 1862. 319 by the existing shareliolders, alleging that if their shares were allotted their Sect. 130. Tote would defeat the resolutions Qi). ■ To companies formed and registered under the Joint Stock Companies Companies Acts, as defined in sect. 175, this Act is by sect. 176 (») to apply as if they registered had been formed and registered under this Act. Such companies are, there- Sf ij ^ ° fore, under no necessity of re-registering under the power given in the 180th panies Acts as section, and are not included under the designation of unregistered com- defined in panies in sect. 199 («')• Such companies are, therefore, free from the pro- '^^ ^'^^■ hibition contained in sect. 199 (2), and may be wound up voluntarily (k). Thus, companies formed and registered under the Act of 1856, and not re-registered under this Act, have been wound up voluntarily (I), and the voluntary winding-up of such a company has been continued under supervision (m). 130. A voluntary winding-up sliall be deemed to commence Commence- at the time of the passing of the resolution authorizing such terT^wLdhl"-' winding-up (a). up- (a) s. 84, as to winding-up by the Court. When the voluntary winding-up takes place under sub-section (2) of Commence- sect. 129 by means of a preliminary, followed by a confirmatory resolution, ™sn' dates the commencement of the winding-up dates . from the passing of the con- f" ™ <=°Y™^- flrmatory resolution (n). And gucere a judgment creditor who levies execu- tion between the preliminary and confirmatory resolution is entitled to hold the proceeds (o). Where a voluntary winding-up is continued under supervision, the Commence- winding-up is deemed to commence at the date of the resolution, and not at "^nt of wind- the date of the presentation of the petition (sect. 84), for the order is to con- 'ng-up,™, p. 301. 18; 16 W. R. 456; and see Gen. Order, (i/) iMavanlUe Discount Co., W. N. 1866, Nov. 1862, Rule 74. 21 ; BritisJi Iiinrlope Co., W. N. 1885, 84. (b) See e.g. Alliance Society, 28 Ch. Div. (z) Union Bank of Kingston-upon-IIull, 539. THE COMPANIES ACT, 1862. 329 application (a) of a contributory, appoint a liquidator or liqui- Sect. 141. dators ; the Court may also, on due cause shewn (j3), remove any liquidator, and appoint another liquidator to act in the matter of a voluntary winding-up (y). (o) Gen. Order, Nov. 1862, Rule 51. (5) Cf. s. 93. (y) Cf. ss. 150, 152. Where there was a question whether the sole voluntary liquidator had No liquidator. been properly appointed or not, the Court in order to quiet the question confirmed him in the office of liquidator (c). Where the sole liquidator had become of unsound mind the Court made an order for his removal and appointed another Kquidator (d). The Court has under this section power to remove any liquidator ap- Removal of pointed by the company or the Court in a voluntary winding-up, and, under liq^K^^'oi's ; the 150th section, to remove any liquidator appointed by the Court in a voluntary winding-up continued under supervision. Quoere, whether in a voluntary winding-up an additional liquidator may be appointed for the protection of a petitioner without making a supervision order (e). The Court has also, after making an order to continue a voluntary winding- after super- up under supervision, power under this section and sect. 150, or, at any rate, ^'*'°° °^'''^^' under sects. 151 and 93, to remove the liquidators appointed by the company before the order, and appoint others (/). The words "on due cause shewn" have not the effect of "if the Court "Due cause." shall think fit." It was said by Jessel, M.E., that "they point to some unfitness of the person — it may be from personal character or from his connection with other parties or from circumstances in which he is mixed up — some unfitness in a wide sense of the term " (g). But these words are not to be understood as laying down any exhaustive rule. If the Court is satisfied on the evidence that it is desirable in the interests of all those interested in the assets that a particular person shall not manage the assets the Court has power to remove him, without there being shown any personal misconduct or unfitness (h). Thus Malins, V.C., held, that to satisfy the words " due cause shewn " it was not necessary to prove against the liquidator anything amounting to misconduct or personal unfitness, that the Court might take all the circum- stances into consideration, and if it found that it was, on the whole, desirable that a liquidator should be removed, it might remove him (i), but that in a voluntary winding-up the leaning of the Court was to leave the share- holders as far as possible to the exercise of their own discretion, and there- fore it did not follow that, because the Court thought an appointment more for the benefit of the company might have been made, it would interfere and substitute other liquidators (k). In the following instances orders have been made for removal : — the liqui- (c) Indian Zoedone Co., 26 Ch. Div. 70. W. N. 1878, 71, 173. Id) North Molten Mining Co., W. N. (g) Sir John Moore Co., 12 Ch. Div. 1886, 78 ; 54 L. T. 602 ; 84 W. R. 527. 325, 831. (e) Llanfymach Silver Lead Mining Co., (A) Adam Eyton, Limited, 36 Ch. Div. E.p. Turner, 9 W. R. 500; 4 L. T. 154; 299. see infra, s. i50. (J) Marseilles Extension, ^c, Co., 4 Eq. (/) E. p. Pulbrooh, E. p. Rawlings, 2 692 ; British Nation Assurance Society, E. D. J. & S. 348 ; United Merthur Collieries p. Henderson, 14 Eq. 492. Co., W. N. 1867, 99 ; 16 L. T. 170 ;-and (k) British Nation Society, E.p. Hender- see s. 150 ; Devonshire Silhstone Coal Co., son, 14 Eq. 492. 330 THE COMPANIES ACT, 1862. Sect. 142. dator was unwilling to take proceedings (which the Court thought ought to be taken) against directors with whom he was intimate (I) ; the trustee (in bankruptcy) was acting in fact, although not as the Court thought dis- honestly, in the interest of the debtor rather than of the creditors (m) ; the debts more than absorbed all the assets, and the creditors desired the removal of the liquidator appointed by the shareholders (n); creditors to a very large amount offered to pay into Court enough to satisfy in full the claims of all other creditors and wished the assets to be administered by their nominee (o) ; the sole liquidator became of unsound mind (_p) ; in a winding-up under supervision two liquidators were appointed, one of them went to Canada, giving a power of attorney to three persons to act for him in his absence (q). The matter is one of judicial discretion, so that the Court of Appeal will not interfere with the decision of a judge if he has exercised his discretion according to law (r), for he has much better means of judging than the Court of Appeal (to), but inasmuch as due cause must be shewn for removal, the Court of Appeal must see whether cause is shewn or not (s) (m). A liquidator may appeal against the order removing him (o). Liquidators on 142. As soon as the affairs of the company are fully wound up, conclusion of ii-.i in i i-i winding-up to tuB liquidators suall maJie up an account shewing the manner accounT "" ^^ which such winding-up has been conducted, and the property of the company disposed of; and thereupou they shall 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 liquidators : the meeting shall be called by advertisement, specifying the time, place, and object of such meeting; and such advertisement shall be published one month at least previously to the meeting, as respects companies registered in England in the London Gazette, and as respects companies registered in Scotland in the Edinlurgh Gazette, and as respects companies registered in Ireland in the Bublin Gazette. Liquidators to 143. The liquidators shall make a return to the registrar of to registrar, such meeting having been held, and of the date at which the same was held, and on the expiration of three months from the date of the registration of such return the company shall be deemed to be dissolved (a) : 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) s. Ill, as to winding-up by the Court. Effect of If an application be made to the Court after the registration of the return, dissolution. jj^t before the expiration of the three months limited by this section, the (0 Sir John Moore Co., 12 Cli. Div. 325. 1886, 78 ; 34 W. R. 527. (m) JS. p. Ncwitt, 14 Q. B. Div. 177. (?) Scotcfi Granite Co., 17 L. T. 533. (n) (luford Building Soc, 49 L. T. 495. (/) See S. p. Sheard, 16 Cli. Dir. 107. (o) Adam Eyton, Limited, 36 Ch. Div. (s) Sir John Moore Co., 12 Ch. Div. 2 99. 325,331. (p) North Mblton Minimj Co., W. N. THE COMPANIES ACT, 1862. 331 Court has jurisdiction to make an order in the matter of the winding-up Sect. 144. notwithstanding that the three months have elapsed- before the order is made («). But after the three months have expired there is no longer a company. It is an intelligible proposition that if the dissolution has been obtained by fraud, the Court may have power in a proceeding properly instituted for that purpose to declare the dissolution void, and in that case there will be an existing company which may be wound up compulsorily, or in whose voluntary liquidation an application may be entertained. But unless and until the dissolution is so set aside there is no corporate body in existence. And therefore petitions for a compulsory order presented by a debenture- holder («) and by a creditor (a;) after a dissolution under this section have been dismissed : and even an application by creditors, of whose claim the company had notice before the dissolution, was dismissed as not having been preferred before the company ceased to exist {y). In these cases it was sought to be argued that the introductory words of sect. 142 form a condition precedent to the dissolution, and that if out- standing claims are shewn to remain, the affairs of the company have not been " fully wound up," and that therefore there has been no dissolution. This seems to be sufficiently answered by pointing to those provisions of the Act which give creditors ample opportunity of preferring their claims and stopping the dissolution from being brought about (u). " Fully wound up " means "as far as the liquidator can wind them up," that is when the liquidator has disposed of the assets as far as he can realise them, got in the calls as far as he can enforce them, paid the debts as far as he is aware of them, and done all that he can do in winding up the affairs (x). After dissolution had it is possible that if the liquidator had wilfully left unpaid a debt of which he had notice he might be personally liable to the creditor (a;), and quaere whether in some cases it might not bo possible, in a proper proceeding, to sue the individual corporators, notwithstanding the extinction of the corporate life. The Industrial and Provident Societies Act, 1862, provided by sect. 18, Industrial that the dissolution of those societies should not prevent the winding up of societies. their affairs, so far as they remain unsettled. By the Act of 1876, which repeals that of 1862, this is not re-enacted. As to the effect, as regards the liabilities of a company, of a so-called Powers of dissolution under a power contained in its deed of settlement, the cases dissolution. given in the note, which are not in all respects easy to reconcile, may be consulted (z). 144. All costs, charges, and expenses properly incui-red in the Costs of Toluntary winding up of a company, including the remuneration J-q^'^aHon of the liquidators, shall be payable out of the assets of the company in priority to all other claims (a). (a) Gf. s. no. (t) CrooAhaven Mining Co., 3 Eq. 69. («) Carr's Case, 33 Beav. 542 ; Times (u) Pinto Silver Mining Cb., 8 Ch. Div. Life . Assurance Co., 5 Ch. 381, 389, n. ; 273. Mosley's Case (Alb. Arb. Minutes, p. 953) ; (aj) London and Caledonian Insurance WoocCs Case (Alb. Arb.), Reil. 54 ; 15 Sol. Co., 11 Ch. Div. 140; Schooner Pond Coal J. 693; Barnes's Case (Eur. Arb.), L. T. Co., W. N. 1888. 70. 72 ; 17 Sol. J. 594; Swift's Case, Kelly's (y) Westboarne Grove Drapery Co., W. N. Case (Eur. Arb.), L. T. 89 ; and the cases 1878, 195. cited supra, p. 40 (s). 332 THE COMPANIES ACT, 1862. Sect. 145. " -'^ll other claims " must mean all other claims at the date of the winding- up. If the liquidator, i.e. the estate in liquidation, incurs obligations, these must come first ; and therefore costs which a liquidator had been ordered to pay out of the assets were entitled to priority over the costs of winding-up where there were not assetsenough for both (a). Liquidators Where the assets of the company are insufficient to pay the costs of the not responsible ■nrjnding-up, the liquidators cannot be made personally responsible to the solicitors for the deficiency (5). So also in a compulsory winding-up (c). If the company's property is mortgaged, if, that is, the company is entitled only to an equity of redemption, it is the equity of redemption only that is assets for payment of costs. The liquidators' costs must therefore, of course, stand behind those of the mortgagees, save in so far as the liquidators' costs are costs of preservation, or realisation, of which the mortgagees have had the benefit (d). See further, notes to sect. 110. Costs as between liqui dator and mortgagees. Saving of rights of credjtnrs. General prin- ciples. 145. The voluntary winding 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) i.e. before dissolution under s. 143, Pinto Leite Co., 8 Ch. Div. 273. This section is not confined to the case where the voluntary winding-up commenced before the petition was presented. If after petition presented the company goes into voluntary liquidation, the creditor may be called upon to shew that he will be prejudiced by the voluntary winding-up (e). As to the circumstances under which a company may be wound up by the Court, and the orders which will in different cases be made on a petition for having a company so wound up, see sects. 79, 80, and 91 ; and see also sects. 147, 149. Upon the question of the general principles to which the Court will have regard in choosing between a voluntary and a compulsory winding-up, it is conceived that (due regard being had to those sections of this Act (/) which provide that the Court may have regard to the wishes of creditors and contributories) the observations of Turner, L. J., in Be Northumberland and Durliam District Banking Co. (g) may be cited as equally applicable to cases arising under this Act. A compulsory order, his Lordship said, ought there to be made because " there have been preferences made by the directors, and there are transactions requiring investigation (h), and there are powers given in the case of a compulsory winding-up which are not given to liquidators under a voluntary winding-up. It appears, too, that there are very large calls which must necessarily be made, and I do not find any provisions in the Act by which the liquidators under a voluntary winding- up have any power to proceed for the recovery of those calls otherwise than (n) Home Investnumi Societi/, 14 Cii. D. 167 ; Dominion of Canada Plumbago Co., 27 Ch. Div. 83, not following Dronfeld Sillistone Co., 28 Ch. D. 511 ; and see ante, pp. 243, 297. (!)) Tmcman's Estate, Hoohe v. Piper, 14 ICq. 278 ; and see /« re Massetj, 9 Eq. 367. (c) Anglo-Mo7-avian Co., E. p. Watkin, 1 Ch. Div. 130. (d) Regent's Canal Ironworks Co., E. p. Grissell, 3 Ch. Div. 411. (c) New York Exchange, 39 Oh. Div. 415. (/) ss. 91, 149. (g) 2 De G. & J. 357, 378. (h) Cf. United Service Co., 7 Eq. 76. THE COMPANIES ACT, 1862. 333 by action (i), whereas better and more available powers exist for the purpose Sect. 145. of enforcing those calls under a compulsory winding-up. ... I think that in cases of this enormous magnitude, where such yast interests are at stake, where the most ample powers which the law has given must be required to be exercised ; where there have been transactions justifying, if not requiring investigation ; where it may be doubtful whether the property of the share- holders will answer the liabilities ; where there is danger to the creditors of the shareholders escaping from their liabilities — in all such cases my very clear and decided opinion is that, having regard to the powers which may be put in force under a winding-up by the Court, and which cannot be exercised in the case of a voluntary winding-up, a winding-up by the Court ought to be preferred to a voluntary winding-up." From the provision that a voluntary winding-up shall not be a bar to the Contributory's right of a creditor to have a compulsory order, arises the implication that it P^'''">n. is a bar to any such right in a contributory. And in Oold Co. (k) James and Baggallay, L.JJ., intimated that had the matter been res integra they would have been disposed so to hold. The decision in that case has now laid down the rule in tbis way, that after voluntary winding-up commenced a compulsory order cannot be made upon a contributory's petition unless either (1) a case of fraud in passing the voluntary resolution is made out, e.g. that it was carried by the vote of a majority implicated in transactions to be investigated, or (2) the petition is supported by creditors (I). In the latter case the petition might possibly be amended or treated as amended (I). As the decision in the Oold Co. (k) did not overrule any of the previous cases, but, on the contrary, proceeded upon the footing that a construction of the section had been established, it is still necessary to examine those cases in detail. The corresponding section of the Act of 1856 (19 & 20 Vict. c. 47, s. 105) is, " The voluntary vrinding up of a company shall not prejudice the right of any creditor of such company to institute proceedings for the purpose of having the same wound up by the Court." Upon which section it was held in Be Fire Annihilator Co. (m) that a compulsory order could be so made upon a contributory's petition ; and the proceedings in the voluntary winding-up having been dilatory and unsatisfactory, and not having come to a conclusion at the end of five years, a compulsory order was there made. An opinion was expressed by Turner, L.J., in In re Bank of Gibraltar and Malta (n) that this section (the 145th) did, by specifying creditors, exclude contributories : but there are cases in which on a contributory's petition a compulsory order has been made, although it is not without very sufficient reason that such an order will be made. Thus, in Be London Flour Co. (o) Stuart, V.C., held that the Court had jurisdiction to make such an order, and he there made a compulsory order ; which was, however, in the absence of fraud, discharged on appeal, as a majority of the shareholders and creditors were in favour of a voluntary winding-up. In Be Lonsdale Vale Ironstone Co. (p), the petition being supported by (i) This is provided for by this Act by of China, India, and Japan, 1 Ch. 339 ; o. 138. London and Mercantile Discount Co., 1 Eq. (A) 11 Ch. Div. 701. 277. (0 Gf. Yron Colliery Co., 20 Ch. Div. (o) 16 W. R. 474, 552 ; 17 L. T. 636 ; 442, 447. 19 L. T. 136. (m) 32 Beav. 561. {p) 16 W. K. 601. (n) I Ch. 69,74; and see Imperial Bank 334 THE COMPANIES ACT, 1862. Sect. 145. creditors, a compulsory order was made. The shares were in this case fully paid up, and the assets insufficient to pay the creditors in full, bo that the oontributories had really no interest in the estate. In Be Oriental Commercial Bank (q) on a petition presented by the directors of the company, a compulsory order was made at the request of Komo of the creditors ; which, on appeal, a majority of the creditors being in favour of a winding-up under supervision, was changed into a supervision order. In Be General International Agency Co. (r) no question was made that a compulsory order could have been made on a shareholder's petition, and the Court gave reasons for taking the course of making a supervision order. But the strongest case, perhaps, is Be Littlehampton, Havre, &c.. Steamship Co., Ex parte Ellis (s) (although this point does not seem to have been dis- cussed), where, notwithstanding that the company was in course of voluntary winding-up with the assent of a large majority of its creditors, an order for winding-up by the Court was made on the petition of a scripholder on his admitting himself to be a contributory, there being danger of want of efficient supervision under the voluntary winding-up. It appears, however (<), although it is not so stated in the report, that in this case the petition was presented before the voluntary resolutions were passed. Where in the interval between the passing and the confirmation of a special resolution for voluntary winding-up a contributory's petition was presented, a compulsory order was made upon it (u). A contributory may, after the commencement of a voluntary winding-up, obtain a supervision order under sect. 147 : but special circumstances must be proved for that {x). Creditor's As a general rule, the right of a creditor is absolute to have a compulsory petition. order (y), if he brings his case within the section (z). Thus, where the affairs of the company required a searching investigation, and the assets and interests concerned were very large, a compulsory order was made on a creditor's petition, without waiting for a petition by the company to continue the voluntary winding-up under supervision to be heard (a). ' And, where a voluntary winding-up had been going on for more than a year, and no dividend had been paid, and the only excuse was, that the liquidator was prosecuting a claim against the Inte manager of the company, a compulsory order was made on the petition of a single creditor whose debt amounted to three-fourths of the whole debts of the company Q>). So where the voluntary liquidator was proceeding at his own leisure to realise the property, and selling it piecemeal at a loss, and it was alleged that he was the nominee of, and acting in the interest of the shareholders, a compulsory order on a creditor's petition which was supported by the majority of the creditors was held to be ex debito justitice (c). But the creditor must shew the Court that his rights will be prejudiced by (o) 15 W. R. 7; 1-t L. T. 755; 15 15 W. E. 1070; 16 L. T. 583; General I,. T. 8. Rolling Stock Co., 34 Bear. 314; 13 W. K. ()■) ;iG Bonv. 1 ; 13 W. R. 363 ; 34 L. J. 423 ; but see ss. 79, 91, 149. (Cli.) 337. (2) See Universal Drug Supply Associa- (s) 34 L. .1. (Ch.) 237 ; 34 Benv. 256 ; Hon, 22 W. R. 675 ; W. N. 1874, 125. 2 D. J. & S. 521. (a) Barned's Banking Co., 14 W. R. (0 See 11 Ch. Div. 717. 722 ; 14 L. T. 451. West Surrey Tanning Co., 2 Eq. 737. (6) Manchester Queensland Cotton Co., See Qold Co., 11 Ch. Div. 701, 718. 15 W. R. 1070 ; 16 L. T. 583. (t/) Manchester Queensland Cotton Co., (c) Tramway Wheel Co., W. N. 1873, 60. THE COMPANIES ACT, 1862. 335 a voluntary ■wmding-up; and if he do not, he cannot claim his order ex Sect. 146. dehito justitice (d). Thus where the petitioner claimed to be a creditor for about £50, and having been formerly the manager of the company, had acted for some time under the voluntary liquidators, and then quarrelling with them, presented the petition ; and upon the facts it appeared that the debts were about £200, the assets already got in £350, and the principal creditors were opposed to an order being made, the order was refused (d). But where the liquidator paid some debts in full, and offered the petitioner a composition, he was entitled to an order (e). The Court will favour a voluntary winding-up where the creditors are willing to support it (/) ; and will lean rather to a winding-tip under super- vision than to a winding-up by the Court, except in case of fraud or undue influence (g). Where, however, there had been considerable delay, and the contributories had, nevertheless, not taken steps to express their wishes, a compulsory order was made, on a petition by the directors of the company, at the request of some of the creditors, so as to protect their interests, although the "contributories had at the last moment passed a resolution in favour of winding-up under supervision, and other creditors did not oppose it. On appeal, however, a supervision order was made, a majority of the creditors having expressed themselves in favour of it (h). The result of a compulsory order superseding a voluntary resolution is Result of not to invalidate what has been done under the voluntary winding-up "^ ^''• even when no order adopting the proceedings has been made under sect. 146. Where in the interval between voluntary resolutions and subsequent presentation of a petition on which a compulsory order was afterwards made a landlord distrained for rent, his distress was not allowed to proceed (*). 146. Where a company is in course of being wound up Po^'f °fCi<""' ,.1 j?i-*° adopt pro- voluntarily, and proceedings are taken lor the purpose oi having ceedings of the same wound up by the Court (a), the Court may, if it thinks ^f^™**"^^ jSt, notwithstanding that it makes an order directing the company to be wound up by the Court, provide in such 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 (/3). (o) ss. 145, 79. the liability of B. contributories who might (;8) Kg. the Court might adopt the list otherwise escape : Taurine Co., 25 Ch. Dir. of contributories, and thus might preserve 118, 129, 135, 139. As to the commencement of the winding-up in such a case, see sect. 152. In Be Hertfordshire Brewery Go. {k) liberty was given to adopt any of the proceedings under a previous order to wind up under supervision. It does not follow, because the Court does not under this section adopt (d) Universal Drug Supply Association, W. N. 1873, 226. 22 W. K. 675 ; W. N. 1874, 125. (A) Oriental Commerciat Bank, 15 W. R. (e) Caerphilly Colliery Co., 32 L. T. 15. 7 ; 14 L. T. 755 ; 15 L. T. 8. (/) Lonsdale Vale Ironstone Co., 16 (i) Thomas v. Patent Zionite Co., 17 W. R. 601. Ch. Div. 250. But see this case discussed (g) Inns of Court Eotel Co., W. N. 1866, in Taurine Co., 25 Ch. Diy. 118. 348 ; United Merthyr Collieries Co., 16 (k) 22 W. R. 359 ; 43 L. J. (Ch.) 358 ; L. T. 170; and see s. 147; Owen's Patent W. N. 1874, 38. Wheel Co., 29 L. T. 672; 22 W. R. 151 ; 336 THE COMPANIES ACT, 1862. Sect 147 ^^^ proceedings, that therefore everything done under the voluntary '- '- winding-up is nullified and abrogated Q). Where a company, formed and registered under the Act of 1856, but not registered under that of 1862, passed resolutions to wind up voluntarily after the latter Act came into operation, quxre, whether there was juris- diction, on applying to the Court for an order, to adopt the proceedings in the voluntary winding-up (m). Winding-up subject to the Supervision of the Court. Power of 147. When a resolution has been passed by a company to wind Court, on^ ^^ ^p voluntarily (a), the Court may make an order (j3), directing direct wind- that the voluntary winding-up should continue, but subject to such to^supeirision! supervision of the Court, and with such liberty for creditors, contributories, or others, to apply to the Court, and generally upon such terms and subject to such conditions as the Court thinks just. (o) s. 129. (j8) Gen. Order, Nov. 1862, Rules 6, 7, and Form 4. Order is in This section leaves it absolutely in the discretion of the Court whether discretion of an order shall be made or not, and the only clue which is given by the Act Court. jjg ^Q ^;jjg manner in which such discretion is to be exercised is given by the 149th section, from which it appears that the wishes of the creditors and contributories are to be regarded {n). Contributory's The policy of the Act is primarily to let the shareholders meet and petition. regulate the winding up of the company as they would regulate any other part of their business (o) ; and, therefore, unless it appears that in passing the resolution for a voluntary winding-up the minority have been overborne by fraud or by improper or corrupt influence, the Court will not in general on the petition of a contributory make an order to continue the voluntary winding-up under supervision (p); and this is no hardship on the con- tributories, for should any wrongful doing on the part of the liquidators arise, it is open to the contributories to come to the Court upon an originating summons under sect. 138 (q.v.). The Act by s. 129 creates as between the contributories a domestic tribunal with whose decision the Court will not lightly interfere (j). If there have been informality in the resolutions for voluntary winding- up, the contributories should procure another meeting to be called, and not at once present a petition (»•)• Misconduct of It was held in In re Imperial Bank of China (s) that, in the absence of liquidators. (I) Cleve V. Financial Corporation, 16 Eq. 1 Eq. 277 ; Imperial Mercantile Credit 363,372, 380; Thmnas v. Patent Lionite Association, "W. N. 1866, 257; St. David's Co., 17 Ch. Div. 250. Gold Mining Co., 14 W. E. 755 ; 14 L. T. (m) Minima Organ Co., U W. K. 530; 539; Beaujolais Wine Co., 3 Ch. 15; Irri- 8 L. T. 109 ; and see s. 199. It is pre- gation Co. of France, 6 Ch. 176 ; Madras sumed that this is now decided in the Coffee Co., 17 W. E. 643; Gold Co., 11 Ch. affirmative by the cases cited under s. 129. Div. 701, 718 ; and see s. 145. Cn) Bank of Gibraltar and Malta, 1 Ch. (5) Langham Skating Rink Co., 5 Ch. 69 ; Beaujolais IV'iiw Co., 3 Ch. 15 ; Div. 569 ; Gold Co., 11 Ch. Div. 701, 710 ; Owai's Patent ^Vhee^ Co., 29 L. T. 672 ; Middlesborough Assembly Rooms, 14 Ch. 22 W. R. 151 ; W. N. 1873, 226. Div. 104. (0) Cf. Britisli Nation Association, 14 (»•) London Flour Co., 17 L. T. 636 ; 19 Eq. 492. L T. 136 ; 16 W. E. 474, 552. (p) London and Mercantile Discount Co., (s) 1 Ch. 339. THE COMPANIES ACT, 1862. 337 any distinct allegation in a shareholder's petition of misconduct on the part Sect. 147. of voluntary liquidators, the Court would make no order for continuing the voluntary winding-up under the supervision of the Court. But the personal misconduct of voluntary liquidators is not in itself a ground for making a supervision order on a shareholder's petition (f). The proper course in such a case is to bring an action against the liqui- dators (tt). And a creditor's petition to supersede a winding-up under supervision by a compulsory order on account of the misconduct of the liquidators has been refused, as the right course was to apply in chambers to change the liquidators (a;). Where, however, the person complaining of the misconduct is not a contributory but a creditor, and his complaint is that the assets are being misapplied, he is entitled to an order under sect. 145, as he is being pre- judiced by the voluntary winding-up (y). If the Court finds that the company is hopelessly insolvent, it will, Company although a section of the shareholders oppose the petition and wish to put insolvent. an end to the voluntary winding-up and continue the business, refuse to direct a meeting to be held, and will make a supervision order (z). A creditor with an unliquidated claim for damages cannot petition for Creditor. a supervision order. The only persons who can petition are the company, a creditor, or a contributory. A claimant for unliquidated damages must make himself a creditor by obtaining a judgment before he can petition (a). There is a case before Komilly, M.E. (b), in which the company's lessor, who claimed in respect of past and future rent and for damages, and who had offered to refer his claim to arbitration, presented a petition for a super- vision order for the purpose of having his claim settled in chambers, the company having refused to arbitrate. His Lordship there inclined towards making a supervision order, on the ground that the proceeding in chambers was cheaper than either action or arbitration. A supervision order may in the discretion of the Court be made, and a compulsory order refused, notwithstanding that unpaid creditors ask for a compulsory order (c). See further, sect. 145. Upon a petition for a compulsory order an order to continue a voluntary Supervisiou winding-up under supervision may be and commonly is made without °'^^^"^ °° P«*'' amending the petition. The petition may, no doubt, be treated as amended .o°„°„u']s^J"° by stating the voluntary resolution and asking for a supervision order (d). order. But it appears that on a petition for a supervision order the Court will not make a compulsory order if the petitioners do not consent, but may direct the petition to stand over to allow of some one else presenting a petition for a compulsory order (e). Quoere whether the Court can compel a petitioner (J) Star and Garter Hotel Co., W. N. 477 ; cf. Milford Docks Co., Lister's Case, 1873, 74; 28 L. T. 258; Yorkshire Fibre 23 Ch. D. 292. Co., 9 Eq. 650. (6) Tniscedwyn Iron Co., 19 W. R. 194. («) London Bank of Scotland, 15 W. K. (c) Owen's Patent Wheel Co., 29 L. T. 1103; 16L. T. 783. 672; 22 W. E. 151; W. N. 1873, 226; (x) London and Mediterranean Banking Simon's Beef Co., W. N. 1882, 173 ; 31 Co., 15 W. R. 33; 15 L. T. 153; W. N. W. R. 238. 1866, 317. (d) Hodgkinson v. Kelly, 6 Eq. 496, 499 ; (I/) Caerphilly Colliery Co., 32 L. T. 15. United Bacon Curing Co., W. N. 1890, 74. • («) Prince of Wales Slate Quarry Co., (e) Electric Co., W. N. 1881, 98 ; 29 18 L. T. 77. W. R. 714; 50 L. J. (Ch.) 491; 44 L. T. (a) Pen-y-Van Colliery Co., 6 Ch, D. 604. Z 338 THE COMPANIES ACT, 1862. Sect. 148. Voluntary winding-up irregular. Commence- ment. Petition for winding-up subject to supervision. Court may have regard to wishes of creditors. to take an order which he does not ask for (/), or can do more than dismiss - his petition if he will not take what the Court thinks the right order. If by reason of informality, irregularity, or otherwise, the resolutions for voluntary winding-up were not properly passed, the Court of course cannot make a valid supervision order, for it would be an order to continue that which was in its inception invalid (g). A supervision order is an order to continue the voluntary winding-up. The winding-up under supervision is, therefore, deemed to commence at the commencement of the voluntary winding-up Qi). 148. A petition, 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, be deemed to be a petition for winding up the company by the Court (a). (o) ss. 85, 87. A petition for a supervision order must be served, not upon the liquidator only (i), but upon the company also (K). But if the liquidator is appointed before the petition is presented only one set of costs will be allowed (T). And if the liquidator joins in the petition, the company must be served (?n). 149. The Court may, in determining whether a company is to be wound up altogether by the Court or subject to the super- vision of the Court, 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 con- tributories as proved to it by any sufficient evidence, and may direct meetings (a) of the creditors or contributories to be summoned, held, and regulated in such a 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 due to each creditor, and in the case of contributories to the number of votes conferred on each contributory by the regulations of the company (j3). (o) Gen. Order, Nov. 1862, Rules 45-47 ; (|8) Cf. s. 91 ; and see s. 147. Comp. (W. Up) Act, 1890, ss. 6, 23. The following is a collection of cases, falling under this section, with (/) Oiepstow Bobbin Co., 36 Oh. D. 563. ((/) See Bridport Old Brewery Co., 2 Ch. 191; Patent Floorcloth Co., 8 Eq. 664; Sheffield Mortgage Co., W. N. 1887, 218. (A) See s. 130. («■) Gen. Oi-der, Nov. 1862, H. 3. (k) Inventors' Association, 13 W. R. 1015; 12 L. T. 840; 6 N. R. 349; Petro- leum Co., 15 L. T. 169 ; 15 W. R. 29 ; and see Gen. Order, Nov. 1862, Rule 3. (0 ffall and Co., W. N. 1885, 190 ; 53 L. T. 633 ; 34 W. R. 56. (m) Panmia Leather Cloth Co., 13 W. R. 1015. THE COMPANIES ACT, 1862. 339 respect to supervision orders, similar to that under sect. 91 with respect to Sect. 149. compnlsory orders : — shiebholdebs' petitions. Supervision Obdeb made, at wish of majority of creditors, and compulsory order discharged on appeal («). at wish of majority of creditors and shareholders, and compulsory order refused (o). although a section of the shareholders wished to continue the business, company insolvent (^). although it was not clear that a majority were not in favour of a • compulsory order (j). CoMPULSOET Order made, the petition being supported by creditors (r). although voluntary winding-up in progress with assent of large majority of creditors, there being danger of want of ef&oient super- vision (s). Obder refused, because no allegation of fraud in obtaining the voluntary resolu- tion (#) : and no creditors supported (m). Creditors' Petitioks. Supervision Order made, and compulsory order refused, at wish of majority of creditors (x) : by the Court applying sect. 145, although petition preceded voluntary winding-up (^). CoMPULSORT Order made, without waiting for the company's petition for a supervision order to be heard — affairs required investigation — assets and interests involved very large (z). and supervision order refused, where company had not dealt bond fide with the petitioner, and the transaction demanded investigation (a). on petition of single creditor, but for an amount which was three- fourths of the debt — voluntary winding-up had been going on for more than a year, but no dividend paid — company opposed the order (b). at wish of majority of creditors, older made ex debito justitice : volun- tary liquidator not proceeding actively and bona fide to realise the assets (c). and see further, sect. 91. (n) Oriental Commercial Bank, 15 W. R. 237 ; 2 D. J. & S. 521. 7 ; 14 L. T. 755 ; 15 L. T. 8 ; London (t) Sir John Moore Mining Co., W. N. Flour Co., 16 W. R. 474, 552 ; 17 L. T. 1877, 183 ; and see ante, p. 262. 636 ; 19 L. T. 136. («) Gold Co., 11 Ch. Div. 701. (o) Trowbridge Water Supply Co., 1 8 (x) Owen's Patent Wheel Co., 29 L. T. L. T. 115 ; Imperial Mercantile Credit Asso- 672 ; 22 W. R. 151 ; W. N. 1873, 226 ; West ciatimi W. N. 1866, 257. Hartlepool Ironworks Co., 10 Ch. 618. {p") Prince of Wales Slate Quarry Co., (!/) Mw York Exchange, 39 Ch. Div. 415. 18 L. T. 77. \z) Re Barned's Banking Co., 14 W. E. (g) General International Agency Co., 36 722 ; 14 L. T. 451. Bear. 1; 13 W. R. 363 ; 34 L. J. (Ch.) 337. (a) London and Provincial Starch Co., (r) Lonsdale. Yale Ironstone Co., 16 E. p. Adams, 16 L. T. 474. W. E. 601. (6) Manchester Queensland Cotton Co., (s) Be Mttlehampton, Havre, 4rc., Steam- 15 W. E. 1070 ; 16 L. T. 583. ship Co., 34 Beav. 256; 34 L. J. (Ch.) (c) 2"ramwayTOeeZ Co., W.N. 1873, 160. z2 340 THE COMPANIES ACT, 1862. Sect. 150. Sect. 149 is especially applicable where application for a winding-up order is made, not by creditors, but by shareholders, under the circumstances mentioned in the first four clauses of sect. 79 {d). Power to Court to appoint additioual liquidators in winding-up subject to supervision. 150. Where any order is made by the Court for a winding-up subject to the supervision of the Court (q), the Court may, in such order or any subsequent order, appoint any additional liquidator or liquidators; 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 (j3) : 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 resigna- tion (-y). 152; Gen. Order, (a) , 147. , 133. (7) Conf. ss. 141, Nov. 1862, Rule 16. ilemoval of liquidators. This section empowers the Court to remove liquidators appointed by the Court in a winding-up subject to supervision ; and sect. 141 {q^.v.) to remove the liquidators appointed by the company or the Court in a voluntary winding-up. As to the removal in a winding-up under supervision of the liqui- dators appointed by the company before the supervision order, v. supra, sect. 141. The Court has under sect. 141 power to remove and appoint liquidators in a voluntary winding-up, and qucere in Llanfyrnach Silver Lead Mining Co. (e) an additional liquidator was appointed for the protection of the petitioner without making a supervision order. Where in a voluntary winding-up the shareholders have not required security from a liquidator appointed by them, the Court will not require security from a substituted liquidator appointed by the Court after a supervision order has been made (/). Where the contributories, on passing a resolution for winding up volun- tarily, did not, at the proper time, exercise their right of appointing a liquidator, the Court, on making a supervision order, appointed one, and the Court of Appeal refused to interfere with the discretion of the primary judge {g). But it is competent for the shareholders, after a supervision order has been made, to meet and resolve on the appointment of a new liquidator in order to inform the Court of their wishes. Thus, where, there being dis- putes between the two liquidators, one of whom had been appointed by the shareholders before, and the other by the Court after supervision order made, the shareholders met and resolved on the appointment of an additional liquidator, the Court confirmed their appointment, and removed the liqui- dator previously appointed by the Court Qi). Effect of order 151. Where an order is made for a winding-up subject to the Security. Appointment by the Court. (d) Per Selwyn, L.J., London Flour Co., 10 W. R. 552 ; 19 L. T. 136. (c) E. p. Turner, 9 W. R. 500 ; 4 L. T. 354. (/) European Sank, E. p. Paul, 19 W. R. 268. (17) London Quays and Warehouses Co., 3 Ch. 394. (A) Montrotier Asphalte Co., W. N. 1874, 172. ' THE COMPANIES ACT, 1862. 341 supervision of the Court (o), the liquidators appointed to conduct Sect. 152. such winding-up may, subject to any restrictions (|3) imposed of Cduit fm by the Court, exercise all their powers, without the sanction or "J^'e "AT'' intervention of the Court, in the same manner as if the company supervision. were being wound up altogether voluntarily (y) ; 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 (8), 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 (e), or to enforce calls made by the liquidators, and to exercise all other powers which it might have exercised if an order had been made for winding up the company altogether by the Court ; and in the construction of the provisions whereby the Court is empowered to direct any act or thing to be done to or in favour of the official liquidators, the expression official liqui- dators shall be deemed to mean the liquidators conducting the winding-up subject to the supervision of the Court. (o) s. 147. (5) ss. 87, 16.3. (j8) Cf. s. 96. U) s. 102. (7) s. 133. " Subject to any restrictions imposed by the Court." In Be London Quays Restrictions. and Warehouses Co. (f) the liquidator was appointed " to conduct the winding- up of the company, subject to such restrictions as an official liquidator would in a compulsory winding-up be subject to, except so far as the Court may, upon an application for that purpose, modify or dispense with such restrictions in any case or class of cases." The converse case is to be found in liochdale Property Co. (k). Semble, restrictions will not be imposed unless there be a necessity for doing so (J). This section preserves to the liquidator, when a supervision order is Powers of made, the same powers as he had in the voluntary winding-up, but enables liquidators. the Court to restrict them if it thinks fit. Unless, therefore, the Court have given any directions restrictiug the exercise of his powers, the sanction of the Court wiU not be necessary to render valid any arrangement which, in a purely voluntary winding-up, might have been entered into with the sanction of a general meeting (sect. 139) ; and to this extent sect. 160 must be looked upon as cumulative upon, not as restrictive of, sect. 139 (m). 152. Where an order has been made for the winding up of a Appointment company subject to the supervision of the Court (a), and such q" voiunTaiT*'' order is afterwards superseded by an order directing the company liquidators to 1 1 1 .1 rn\ 1 /~i • 11 office of official to be wound up compulsorily (p), the Court may in such last- liquidator. mentioned order, or in any subsequent order, appoint the voluntary (0 3 Ch. 394. 151 ; 29 L. T. 672 ; W. K. 1873, 226. (S) 12 Ch. D. 775, ante, s. 96, note. (m) Anglo Romano Water Co., Wright's (0 Owen's Patent Wheel Co., 22 W. R. Case, 5 Ch. 437. 342 TBE COMPANIES ACT, 1862. Sect. 152. liquidators or any of them, either proTisionally (7) or permanently, ' and either with or without the addition of any other persons, to be official liquidators. (o) 8. 147. (i8) 5. 79. (y) ss. 85, 92. A compulsory order will, in general, continue the voluntary liquidators as ofacial liquidators (n). It is not necessary for the purpose of superseding a supervision order by a compulsory order, to proceed by way of re-hearing or appeal from that order. The Court can under the Act supersede, discharge, or modify its orders from time to time, as circumstances may require, and can, therefore, supersede a supervision by a compulsory order on an original petition for a compulsory order presented subsequent to the supervision order having been made (0). The cases are few in which the Court would make a compulsory order where there is already a supervision order. In the case of a petition of two small creditors the order was refused (p). Commence- Where a supervision order is superseded by a compulsory order, it has ment where j^ggjj g^j^ ^jjg^^ ^j^g Tvinding-up will date from the commencement of the ordS"made windiDg-up under supervision, i.e., from the resolution to wind up voluntarily, after super- not from the presentation of the petition. vision order :— Thus where five months after the commencement of a voluntary winding- up two petitions were presented, the one asking for a supervision order, and the other for a compulsory order, the Court, being of opinion that the winding-up ought to be compulsory, but not wishing to alter the date of its commencement, made a supervision order on the first petition, and an order dated the following day on the second petition for a compulsory winding-up (q). But this case is very difBcult to understand and has been said to be hardly an authority for anything (r). after volun- Where a purely voluntary winding-up is superseded by a compulsory tary wmding- Qj,|jgj, m^^g upon a petition presented after the commencement of the voluntary winding-up, the commencement is the date of the presentation of the petition (s). The contrary is not decided by Thomas v. Patent Lionite Go., 17 Oh. Div. 250 (s). Supplemental Provisions. Dispositions 153. Where any company is being wound up by the Court or mencement''of Subject to the supervision of the Court, all dispositions of the the winding-up property, effects, and things in action of the company, and everv avoided. i^ji i-.i <.,, transier ot snares, or alteration in the status 01 the members of the company, made between the commencement of the winding- up (a) and the order for winding-up, shall, imless the Court otherwise orders, be void (j3). (a) ss. 84, 130. ((3) Cf. ss. 114, 131, 168, 164. Effect of In the case of a voluntary winding-up sect. 131 avoids all transfers, except section. (n) London and UMitcrrancan Banking (p) Orrell Colliery Co., W. N. 1879,106 Co, 15 W. R. 33 ; 1 5 L. T. 153 ; W. N. {q) United Service Co., 7 Eq. 76 : and see 1866, 317. 5. 146. (0) London and Mediterranean Bank, (r) Taurine Co., 25 Ch. Div. 118 140 W. N. 1866, 317; 15 L. T. 153; 15 W. R. (s) Taurine Co., 25 Ch. Div. 118; diss. 33 ; see, however, supra, p. 252. Cotton, L.J. THE COMPANIES ACT, 1862. 343 as therein mentioned, or alteration in the status of the members of the com- Sect. 153. pany after the commencement of the winding-up. In the case of a company " ■wound up by or under the supervision of the Court, a discretion is, by this section, reserved to the Court in setting aside the avoidance in the cases here mentioned. In both cases the business of the company is to come to an end, except so far as may be necessary for the beneficial winding up of the same (t). Sect. 114 (now repealed by 30 & 31 Vict. c. 47, s. 1) by constituting a winding-up petition when registered a Us pendens, affected the real estate of the company, while this section affects all alienations both of its real and personal estate (u). The words of this section are very wide, and properly so, to prevent, in the interval which must necessarily elapse between the presentation and the hearing of a petition, the improper alienation and dissipation of the pro- perty of the company. But the words at the end of the section are necessarily introduced in order to give the Court a discretion to say that a transaction which is, in its opinion, perfectly fair and hand fide shall stand. Without such a discretion given to the Court it would be open to any one by the mere presentation of a petition, whether well-founded or merely groundless and maUgnant, to paralyse ipso facto the trade of the company, and effectually work its ruin. In the case of a voluntary winding-up no such considerations arise, as the winding-up takes its origin from the voluntary action of the shareholders. It is not necessary that the sanction of the Court should be obtained at the time of the transaction which it is sought to establish (cc). Thus the Court may establish land fide transfers of shares made and com- Transfers of pleted, in ignorance of the presentation of a petition, between the commence- shares, ment of the winding-up and the order for winding-up, although it will not enforce specific performance of an agreement for purchase of shares if it have not been completed (y). (Under the Act of 1848, the holder of the shares at the time the petition was presented was, upon the construction of the statute, necessarily the con- tributory (z); and execution, previous to the presentation of the petition, of a transfer which was not registered till after the presentation, did not relieve the transferor (a). And this, as has been seen (b), is the case under this Act, and for the purpose of determining the period of time at which shareholders will be debarred from transferring their shares and escaping liability a date earlier than that of the commencement of the winding-up, namely, the date of the stoppage of the company and the issue of a notice of a meeting to pass voluntary resolutions, was adopted in the Glasgow Bank cases (c). ) Where persons who had become shareholders by transfer, after the presen- (Q ss. 131, 95. question was only one of registration by (m) Earned? s Banking Co., E. p. Thorn- the company, as to which see further, s. 35. ion, 2 Ch. 171, 179. (/) Glanvitte's Case, 10 Eq. 479. (a;) Gibbs and West's Case, 10 Eq. 312, (a) Feigan's Case, W. N. 1873, 16. 324. (6) Supra, s. 35, note. (j/) Emmerson's Case, 2 Eq. 281 ; 1 Ch. (c) See Mitchell's Case, Rutherfurd^s 433; and see Walter's Case, 2 Eq. 554; Case, 4 App. Cas. 548. Cf. Tennent v. Taine v. Sutchinson, 3 Ch. 388, 391. To Glasgow Bank, 4 App. Cas. 615 ; Mitchell Ward and Garfit's Case, 4 Eq. 189, this v. Glasgow Bank, 4 App. Cas. 625; and section did not apply, for there the transfer see Sunderland Building Soc, 24 Q. B. D. was, so far as the transferor and transferee 394 ; North British Building Soc, Oarrick's were concerned, completed before the com- Case, 22 Sc, L. R. 833 ; and see ante, s. 35, mencement of the winding-up, and the note. Contrast EiMnMe Co., 25 Ch.Div. 118. 344 THE COMPANIES ACT, 1862. Notice of petition. Dispoiition of property. Sect. 153. tation of the petition, appeared on the hearing of the petition, an objection '- to their being heard, taken on the ground that the transfers were void, was overruled because the company was not then at the hearing being wound up {d). A vendor of shares cannot profess ignorance of the petition after it has been advertised, the advertisement is notice to all the world (e) : that is to say, semhle, if the parties have had such a reasonable time as that knowledge of the advertisement may be imputed to them (/). Lord Westbury in the European Arbitration refused to impute notice on the morning of the day following the publication of the Gazette (/). A contract for the purchase of shares entered into before the presentation of the petition is not rendered void by its presentation {g) ; neither is such a contract void if entered into in the interval between the presentation of and the order on the petition Qi) ; and in the case last referred to it was held that a transfer could be made after the winding-up order. In Oibhs and West's Gase (i) a charge upon certain caUs was given by the directors of a company between the commencement of the winding-up and the order, and was confirmed by the Court under this section, the Court being of opinion that it was bona fide given to prevent the ruin of the company. Transactions in the ordinary course of the trade of a company, bona fide entered into and completed before the winding-up order, will always, in the discretion given to the Court, be maintained ; but to transactions which at the date of the winding-up order rest only in contract, this section has no application (k) ; in such a case the person with whom the contract is entered into can claim only pari passu with the rest of the creditors of the company. Thus, where after the presentation of a petition, of which the company were aware, but P. was ignorant, P. contracted with an iron company to supply him with, and paid for, iron, he would, if the iron had not been delivered to him, have been entitled only to prove and not to have delivery of the iron (k), but it appearing that the iron had been delivered so that the disposition of the property was complete before the winding-up order, P. was allowed to retain the iron (k). In the OrientalBank Q) intelligence of the fact that a winding-up petition had been presented and a provisional liquidator appointed could not and did not reach the Mauritius for ten days. In the interval persons in the Mauritius paid money to the officers of the company's branch there for drafts of the company drawn by the Mauritius branch upon the head office in London. Chitty, J., held that the contract was not invalid, as having been entered into by agents whose authority had in fact, though they did not know it, come to an end, and that the creditors were not entitled to have their money refunded, but must prove and take a dividend. This section has nothing to do with payment to the company of money due Payment of debt to the company : — (d) Tumacacori Mining Co., 17 Eij. 534, 537. (e) Emmerson's Case, 2 Eq. 231 ; E. p. Watkins, 14 L. T. 696 ; 14 W. R. 817 ; but see United Service Co., 7 Eq. 76. Where, however, the petition was allowed to stand over for si.t months, a creditor who pre- sented a second petition was allowed his costs : Marron Bank Paper Co., 38 L. T. 140. (/) Oriental Bank, E. p. Guillemin, 28 Ch. 1). 6:!4, G40; National Bank's Case (Eur. Arb.), L. T. 92 ; Empire Assurance Corporation, 16 L. T. 341 ; Owen's Patent Wheel Co., 22 W. R. 151 ; 29 L. T. 672 ; W. N. 1873, 226. (g) Chapman r. Shepherd, Whitehead v. Izod, L. R. 2 C. P. 228 ; and see s. 131 as to a voluntary winding-up. (A) Budge v. Boimnan, L. R. 3 Q. B. 689. (i) 10 Eq. 312. (k) Wiltshire Iron Co., E. p. Pearson, 3 Ch. 443. (0 E. p. Guillemin, 28 Ch. D. 634. THE COMPANIES ACT, 1862. 345 to the company. After petition presented, and before order made, a debtor Sect. 153. may safely pay and take a receipt from the company as before (m). The Act contains no provision as to compulsory winding-np corresponding to sect. 133 (5). But payment by the company after the commencement, and after the by the creditor must be taken to have notice of the commencement of the winding- i^o^P^"?' up, of even a perfectly bona fide debt of the company, is not a transaction to which the Court will, in the exercise of its discretion, give validity. For to do so would be to sin against the cardinal principle of the Act, yiz., paripassu distribution amongst creditors. And therefore, although a creditor who, in ignorance of a petition having been presented, and no later than the morning after its advertisement in the Gazette, received payment, was allowed to retain the money, this was only expressly on the ruling that notice of the petition could not be imputed to him (n) ; and where payment of a policy-holder's claim, allowed in April, and due on the 16th of June, was made on the 8th of July, and the petition, on which an order was made on the 12th of January following, was presented on the 10th of June, the policy-holder was made to refund (o). And it can scarcely be doubted that the principle of these cases would be followed in Chancery, for the following proceeds on a similar footing. A creditor having presented a winding-up petition, the company paid him a part of the debt, and promised to pay the remainder on a certain day. This was not done, and the creditor proceeded with his petition, and an order was made on that and another petition presented by the company. It was held that the creditor must refund what had been paid him (g). If the creditor had received payment and dismissed his petition, this would have been a very different matter, for then the date of commencement of the winding-up would have been altered (q). If directors after the presentation of the petition make payments they Liability of make them at their peril, and if the payments are improper they are personally directors. liable for the amounts paid (r). The C. Company took a transfer of shares in the B. Company and sent Registration of in the transfer for registration. In the interval between sending in the transfer to transfer and the actual registration a petition was presented to wind up the (.'o^^L*,,?"" C. Company, upon which an order was afterwards made. The registration was held not to be affected by this section, as not being a disposition of the property of the C. Company within its meaning (s). The acceptance of a bill of exchange is not a disposition of the property of Acceptance the company within this section, so as to give the Court power to support °^ *""• under this section an acceptance by a director, which was not valid as made by him in the character of liquidator (f). After a petition had been presented for winding up a company, a share- Alteration of holder with knowledge of the' petition, on the proposal of the directors, status. advanced a sum of money on the arrangement that if the company should be able to go on, such sum should be treated as a loan ; but if it were wound up, should be taken as paid on account of capital unpaid on his shares. An (m) Mersey Steel Co. v. Naylor, Benzon, E. p. Greenwood, 9 Ch. 511 ; of. E. p. ^ - Co., 9 Q. B. Div. 648 ; 9 App. Cas. Boss, Re Whalley, 18 Eq. 375. 434,440. (fi) See note (p); and see E. p. Bou- (») National Bank's Case (Eur. Arb.), cliard, 12 Ch. Div. 26. h. T. 92. (f) Neath SarbourCo.,W.^.18S7,87,12l. (o) Brown ^ Tylden's Case (Eur. Ai-b.), (s) Barned's Banking Co., E. p. Con- L. T. 163 ; 18 Sol. J. 781. tract Corporation, 3 Ch. 105. (p) Liverpool Civil Service Association, (t) Bolojnesi's Case, 5 Ch. 567. 346 THE COMPANIES ACT, 1862. Sect. 154. order was afterwards made on the petition ; and it was held that such an arrangement was invalid as an alteration in the status of the member, and that he was not entitled to treat the amount as paid upon his shares (u). As to a shareholder who, being an infant at the commencement of the winding-up, subsequently attains his majority, see sects. 22, 131. As to questions of fraudulent preference, see infra, sect. 164. It seems that notwithstanding this section trustee in bankruptcy may dis- claim after winding-up (x). Registration of A petition was presented to wind up an unregistered company. The com- an unregistered pany -^yas then registered, the registrar not being informed of the pendency of the petition ; subsequently an order was made on the petition. It was held that the registration was a nullity, and that the company was being wound up as an unregistered company (y). 154. Where any company is being wound up, all books. The books of the company to i/>it-t be evidence, accounts, and documents 01 the company and oi the liquidators shall, as between the contributories of the company, be primd facie evidence of the truth of all matters purporting to be therein recorded. The books are primd facie evidence (z), but no more \h.a.Ti prima facie evi- dence (a). If the name of a director, an alleged contributory, be found upon the register, then even where registration or non-registration is the cardinal point, he may shew that his name was not there with his assent and know- ledge (a). As to disposal of books, accounts, and documents of the company. 155. Where any company has been wound up under this Act and is about to be dissolved (a), the books, accounts, and docu- ments 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 woimd up voluntarily, in such way as the company by an extraordinary resolution (/3) 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 forthcoming, to any party or parties claiming to be interested therein. (a) ss. in, 143. (;8) ». 129. Where the company had been dissolved after voluntary winding-up the liquidator was ordered to produce documents upon the footing that they were under his absolute control (i). (m) Oriental Commercial Bank, Barge's Case, 5 Eq. 420 ; and see note to s. 25 ; see also London Svlmrban Bank, Walmcsley' s disc, 15 Eq. 274. (.c) West of England Bank, I', p. Bud- dni, 12 Ch. D. 288; but the point was not argued : and see Ifichael Brown's Case (Eur. Arb.), Roil. 32 ; L. T. 21 ; 17 Sol. J. 310. (j/) Hercules Insurance Co., 11 Eq. 321. (x) Great Northern Salt Co., 44 Ch. D. 472. (a) Barangah Oil Co., Arnot's Case, 36 Ch. Div. 702, 712. (6) London and Yorkshire Bank v. Cooper, 15 Q. B. Div. 473. THE COMPANIES ACT, 1862. 347 156. Where an order has been made for winding up a company Sect. 156. by the Court or subject to the supervision of the Court, the Court inspection of 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 other- wise (a). (a) Soh. 1, Table A., Art. (78). As to see Gen. Order, Not. 1862, Rule 58. the doonments relating to tlie winding-up, The N. Company transferred its business to the 0. Company, and all the books of the former company were handed over to the latter, but no pro- vision was made for the liquidation of the debts of the N. Company. Both companies being subsequently wound up by orders made in different branches of the Court, upon motion by the official liquidator of the N. Company, that the books of that company should be delivered up to him by the official liquidator of the 0. Company, it was ordered that these books should be pro- duced to him at all reasonable times at the chambers of the judge by whom the order for winding-up the 0. Company was made (c). Special circumstances must generally be shewn in order to obtain an order 0r4er, when for inspection of the books; but where the debts are large, and the trans- ™^^^- actions of -the company have been complicated, the Court will make an order for inspection without any special reason being given for it (d). An order for inspection will be made, notwithstanding a secrecy clause in the articles of association (e). But if the winding-up is for purposes of re- construction the existence of a secrecy clause will be regarded ('/). The order is to be made prima facie only for the purposes of the winding- up and for the benefit of those interested in the winding-up. Where all the assets had been sold to a new company and the books handed over to the new company, and inspection was sought by members of the old company who had taken shares in the new company, the object being to establish claims against the directors or promoters of the old company, an order was refused both on the ground that the order was not asked for the purposes of the winding-up and that the books were not in the possession of the company (5')- Independently of this section, semhle, a creditor's right to inspection rests upon principles similar to those which would be applicable if he had brought an action to establish his claim (h). Where in an action for calls against a contributory the judge at chambers had given liberty to the defendant after plea to inspect the books, the Court refused to review the exercise of his discretion (i). An order for production before an examiner of the company's books and Pending documents, for the purpose of testing in cross-examination the evidence of Petition. an officer who has made an affidavit for the company, in opposition to a winding-up petition, may be made pending the petition ; but of course the (o) National Financial Co., 15 W. R. (/) Glamorganshire Banking Co., Mor- 499. gan's Case, 28 Ch. D. 620. (d) E. p. Buchanan, 15 W. R. 99; 15 (jf) North Brazilian Sugar Factories, 37 L. T. 261 ; Imp. Land Co. of Marseilles, Ch. Div. 83. W. N. 1882, 173. (h) E. p. Walker, 15 Jur. 853. (e) Birmingham Banking Co., 36 L. J. (i) Lancashire Cotton Spinning Co. v. (Ch.) 150. Greatorex, 14 L. T. 290. 348 THE COMPANIES ACT, 1862. Sect. 157. Court will in such a case take care not to lend its aid to the assistance of a - person who files a mere fishing petition, and then applies for inspection to see what case he can make. The power of inspection wiU be limited, and the papers allowed to be dealt with as at a trial at nisi prius (h). Thus where the company opposed the petition of a shareholder, and filed an afladavit by their secretary, upon which he was cross-examined before a special examiner, the Court ordered that the books be produced before the examiner upon the cross-examination {k). In cases in the Stannaries Court the right of inspection given by s. 22 of the Stannaries Act, 1855, is not taken away by the pendency of a winding-up - petition. The same practice apijlies as in the High Court, and if a proper case is shown an order for inspection may be made (V). As to discovery from the oflScial liquidator, v. sect. 94. Voluntary Where a company, in whose articles of association was contained a clause winding-up. providing that the books should, subject to reasonable restrictions, be open to the inspection of the shareholders during the hours of business, went into voluntary liquidation, it was held that the clause ceased then to be applicable (m). Where the articles of association provided that no shareholder should be at liberty to inspect the books, except such as should be produced at a general meeting, and the company went into voluntary liquidation with a view to reconstruction with reduced capital, a shareholder who had accepted shares in the new company was held bound by the original contract, and not entitled to inspect the books of the winding-up. company (»). Power of 1 57. Any person to whom anything in action belonging to tlie assignee to sue. 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. See now Judicature Act, 1873, s. 25 (6). Debts of all 158. In the event of any company being wound up under this brproveT^ *° Act, all debts payable on a contingency, and all claims against the company, present or future, certain or contingent, ascertained or sounding only in damages, shall be admissible to proof (a) against the company, a just estimate being made, so far as is possible, of the value (/3) of all such debts or claims as may be subject to any contingency or sound only in damages, or for some other reason do not bear a certain value. (a) Gen. Order, Nov. 1862, Rules 20-28. order, Gen. Order, Nov. 1862, Rule 25 ; and (|8) As at the date of the winding-up see infra, p. 356. What is A trustee for a company in liquidation of shares in another company is ADMISSIBLE entitled to prove for the amount of calls which have been made on him, 'i'rust™°fo'r the ^""^ interest thereon, and also for any future calls and interest, he under- compnnj'. (/i) Emma Silver Mining Co., 10 Ch. Table A. Art. (78), n. 194; Lisbon Steam Tramways Co., W. N. (n) Metropolitan and Provincial Bank, 1875, 54. Kp. Davis, 16 W. R. 668; and see Cla- (l) West Devon Consols, 27 Ch. Div. morganshire Banking Co., Morgan's Case, 106. 28 Ch. D. 620. (m) Torhshirc Fibre Co., 9 Eq. 650 ; see THE COMPANIES ACT, 1862. 349 taking to pay over the dividends, when received, in discharge of the liability Sect. 158. against which he is entitled to be indemnified (o). A trustee for a company of a lease is entitled to prove for the amount of rent actually paid by him since the commencement of the winding-up, and for the consideration, being a fit and proper sum, which he may have to pay for the purpose of assigning the lease and putting an end to his liability (p). By deed of amalgamation of the A. and B. Companies, the B. Company Indemnity. covenanted to indemnify the A. Company against its liabilities : held, that the A. Company was entitled to prove in the winding-up of the B. Company as creditor for the amount of judgments recovered against the A. Company by its creditors, and costs; but that a simple contract creditor of the A. Company was not entitled to prove for his debt (q). Where a ship, insured in a mutual insurance society upon an unstamped Mutual iusur- policy, was lost, and it appeared from entries in the company's books that ""''^ society— the money due upon the policy had been raised by order of the committee, p^^ct™''^ but a winding-up order was made before the money was paid, proof was allowed in respect of the amount secured by the policy ; for, although the policy, being unstamped, was, under 35 Geo. 3, c. 63, inadmissible in evidence, there was a suf&cient admission of liability in the books of the company (r). Where in the course of liquidation bills were accepted by one liquidator Invalid accept- in such manner as not to be Talid against the company, proof in respect ''"<>^- of the bills was disallowed, but without prejudice to a claim as for money advanced (s). Money placed with the company for a fraudulent purpose (e.jr. to give ficti- Kraudulent tious credit in case of inquiries at their bankers) cannot be recovered («)• '' "^'" A company having power to enter into a contract for the purchase of goods Damages. is bound by such contract, although the goods may not be intended to be used for the purposes of the company, and although that fact may be known to the person with whom the contract is entered into ; and if, through the winding-up of the company, the contract becomes incapable of being per- formed, the person with whom the contract was entered into may prove for damages for its non-performance («). Where a claim was brought which included matters which the claimant Claim stayed ' had already previously litigated in unsuccessful proceedings in which he had *'" '=°sts paid, been ordered to pay costs, all further proceedings on the claim were stayed until the costs were paid (x). Under the Companies Act, 1883 (repealed by the Act of 1888), certain Servants and wages and salaries were and, under the preferential payments in Bankruptcy officers of the Act, 1888, the same are payable in full in priority to all other debts. ' <=<"''ra'>y ; But except in cases falling under that Act, or under the Stannaries Act, servants of the company are not entitled to payment in full of any part of the wages or salary due to them at the date of winding-up in priority to other creditors (y). (o) National Financial Co., E.p. Oriental (s) London and Mediterranean Bank, E. Commercial Bank, 3 Cli. 791 ; see also note 'p. Birmingham Banking Co., 3 Ch. 651. to s. 30 ; but as to interest, see cases cited (<) Great Berlin Steamboat Co., 26 infra, p. 368, and in particular Hughes's Ch. Div. 616. Claim, 13 Eq. 623. (") Contract Corporation, Ebbw Yale (p) Southampton Imperial Hotel Co., Co.'s Claim, 8 Eq. 14. Hunt's Claim, W. N. 1872, 53. («) United Kingdom Co., E. p. Croll, 34 (j) British Provident Life, ^c, Co., L. T. 238 ; 24 W. B. 546, 593. Anglo- Australian Co.'s Case, 4 N. E. 48. (y) General Rolling Stock Co., Chapman's (r) Martin's Claim, 14 Eq. 148 ; and see Case, 1 Eq. 346. s. 200. 350 THE COMPANIES ACT, 1862. Sect. 158. Mining com- panies in the Stannaries. Company wound up compulsorily ; By the Stannaries Act, 1869 (32 & 33 Vict. c. 19), s. 26 : "On a company formed for, or engaged in, working a mine (including a company registered under any of the Joint Stock Companies Acts), being wound up in the Court of the Vice-Warden, or any other Court, or otherwise, the date of the wind- ing-up order having been not earlier than two months after the passing of this Act (z) ; then and in every such case the amount (if any) due at the date of the winding-up order to miners, artisans, and labourers employed, wholly or in part, in or about the mine, in respect of their wages or other earnings in relation to the mine, not exceeding three months' wages or earn- ings to each such person, shall be paid in priority to all other debts of the company." The Stannaries Act, 1887, contains (sect. 4) provisions that miners shall have a first charge for three months' wages in priority to all claims for rents, royalties, dues, or otherwise by lessors, mortgagees, or judgment execution or other creditors, or any other persons whatever, and (sect. 9) that wages which under sect. 4 would be a first charge are to be paid by an official liquidator or liquidator in priority to all other costs except certain costs of the winding-up order, and subject to the 10th sect, to aU claims and (sect. 10) provisions as to wages or salary of clerks and servants referring to the Companies Act, 1883, now repealed and replaced by the preferential pay- ments in Bankruptcy Act, 1888. It is conceived that the Judicature Act gave no preference to wages, and that notwithstanding Norton Iron Co. (a) and Association of Land Finan- ciers (h), sect. 32 of the Bankruptcy Act, 1869, did not apply, and wages were not entitled to priority of payment. These two cases, if taken to be deci- sions on the construction of sect. 10 of the Judicature Act, 1875, are in fact opposed to the principle of all the other cases on the section, and will be found commented upon later under the present section. The point has now become of no importance, for the whole matter is now covered by the preferential payments in Bankruptcy Act, 1888. The winding-up order is notice of discharge to the servants (c), or at any rate the appointment of a receiver and manager in a debenture-holder's action is such notice (d). If the business is continued after the winding-up, and the former servants are actually employed, the circumstances may be such that the notice of discharge has been waived or a new contract entered into on the same terms, and in such case notice of discharge must be given pursuant thereto (e). T. was, under articles of agreement, engaged as manager of a branch bank for a term of five years, at a stipend of not less than £500 a year ; and it was provided that he should have the right of occupying the bank premises as a dwelling-house free of rent and taxes. The company having been compul- sorily wound up during the term, it was held that T. was entitled to claim for the present value of an annuity of £500 for the remainder of the term, and a proper rent for the bank premises for the same time, a deduction to be made (/) in consideration of his being at liberty to obtain a fresh appoint- ment {g). (z) 24th of June, 1869. (a) 26 W. R. 53. ?6) 16 Ch. D. .373. (c) Chapman's Case, 1 Ecj. 346 ; Shirreff's Case, 14 Eq. 417 ; Oriental Bank, Mac- DowaU's Case, 32 Ch. D. 366. (d) Beid v. Explostves Co., 19 Q. B. Dir. 264. (e) English Joint Stock Bank, E. p. Harding, 3 Eq. 841 ; cf. Northfield Iran Co., 14 L. T. 695 ; W. N. 1866, 253 ; Beid V. Explosives Co., 19 Q. B. Dlv. 264 ; and, quaire, Wiltshire Iron Co. t. Great Western Bailway Co., L. R. 6 Q. B. 101, 776, as to contracts continuing after winding-up. (/) Cf. Hartland v. General Exchange Bank, 14 L. T. 863. {g) Yelland's Case, 4 Eq. 350. THE COMPANIES ACT, 1862. 351 The case last mentioned was followed in E. p. Clark (h). Sect. 158. By tlie aitioles of association of a company, L. was appointed manager, and it was provided that if he should at any time be deprived of or removed from his of&ce for any other cause than gross misconduct, the directors should pay to him as compensation for loss of ofSoe a sum equal to three years' salary within one month from the time of his removal. He was held entitled to prove in the compulsory winding-up for the sum specified in the articles, without any such deduction as was made in Telland's Case (v. supra), in con- sideration of his being at liberty to obtain a fresh appointment (i). But where one of the terms of the engagement of an officer of the company was, that " £5000 be paid him if the company discontinue to employ him," it was held that this must be a discontinuance when it was optional with the company either to continue or discontinue the employment ; and that, there- fore, his employment having been terminated by the compulsory winding-up of the company his claim against the company could not be sustained (k). A company covenanted that in case they should at any time thereafter dis- Company place an agent of the company from his appointment they would do certain ■"''°™'i "P acts. The voluntary dissolution of the company and transfer of its business to another company, and the consequent determination of the agent's employ- ment, was a displacement of him within the meaning of the covenant (I). Where the directors of a company in course of formation appointed a broker on the terms that he should have £100 down and £400 more on the allotment of all the shares, and subsequently they, by their own act, abandoning the company and winding it up, made it impossible that the rest of the shares should be allotted, it was held that the broker was entitled to recover either as damages or for work done, and that the sum to which he was entitled was the £400, less an allowance for the chance of his not having been able to dispose of all the shares if the company had gone on (m). Where a person entered into an agreement to act as agent for an insurance company for five years, and to transact no business except for the company, in consideration of a fixed salary and a commission of 10 per cent, on all business transacted (ra), and the company during the term passed into voluntary liquidation, afterwards continued under supervision, he was held not entitled to prove for the prospective value of the commission during the remainder of the term (o). So where L. agreed with an insurance company to act as their agent, for a fixed salary and a commission of 10 per cent, on the renewal premiums of all policies effected through him, and he was further, in case of his retire- ment from the agency, to receive a commission of 5 per cent, during his life on the renewal premiums of all policies effected through him and existing at the time of his retirement, it was held in the compulsory winding-up that the commission was dependent on the existence of premiums, and his claim against the company was therefore disallowed (p). The principle of the two last-mentioned cases is, it is conceived, the same as that of Rhodes v. Forwood (q), namely, that where two parties mutually (K) 7 Eq. 550. where the agreement is for a proportion (0 -B. P- Logan, 9 Eq. 149. of net profits, see Stamp's Claim, 25 L. T. (J) Tailfs Case (Alb. Arb.), 16 Sol, J. 653. 46. (o) E. p. Maclwe, 5 Ch. 737; and see (t) Stirling v. Maitland, 5 B. & S. 840 ; Hariland v. General Exchange Bank, 14 5 N. K. 46. L. T. 863. («i) Jndiiald v. Neilgherry Coffee Co., 5 (p) Lewine's Case (Alb. Arb.), 15 Sol. J. N. K. 52. 828. (n) As to the meaning of " net profits " (q) 1 App. Cas. 256. 352 THE COMPANIES ACT, 1862. Sect. 158. agree for a fixed period the one to employ the other as his sole agent in a certain business at a certain place, the other that he will act in that business for no other principal at that place, there is no implied condition that the business itself shall continue to be carried on during the period named. Where, however, the agreement was to act as commercial traveller and agent for three years at a commission on orders obtained (without any fixed salary), and the company passed into voluntary liquidation, afterwards continued under supervision, compensation was allowed in respect of the amount which might have been earned during the unexpired portion of the term (r). Of this case it is submitted that the distinction drawn by Bacon, V.C., between it and E. p. Maclure (s) is very thin. In both cases the liquidation was voluntary. There is, however, no doubt a difference between an agent of an insurance and of a floor-cloth company in respect of some matters to which James, L.J., in E. p. Maclure (t) called attention, for in the case of the latter company the extent of the business might be said to be in the discretion of the agent, for it was his duty in fact to get all the business he could. By the articles of association of a company S. was appointed general manager, and it was therein stated that he had agreed to take a large number of shares in the company, and it was stipulated that in the event of his being dismissed from the service of the company he should be repaid any sum he might have paid on the shares. He paid £2000 in respect of the shares, and, a resolution to wind up having been passed, he was appointed liquidator and received £400 as remuneration. It was held that the resolution to wind up was tantamount to a notice of dismissal, and that he was entitled to prove for £2000, with a set-off of the £400 paid to him as liquidator (u). In an unlimited company the articles of association provided that all contracts and obligations of the company should contain a limitation of the liability of the shareholders to the amount of their shares. B. acted as underwriter to a limited company, which became amalgamated with the unlimited company, and at an interview with the directors of the unlimited company he was told that he was to go on for them as he had been doing for the limited company. It was held that this agreement was not a con- tract or obligation within the articles, and that B.'s claim must be admitted against the general assets of the company (x). Share of plant According to the custom of Devon and Cornwall, an adventurer in a cost- !LT!f!i^''°°'' ^°°^ aiinc, upon relinquishing his shares and discharging his proportion of the liabilities of the company at that date, is entitled to be paid his share of the then value of the stock and plant— such share is due to him imme- diately and payable within two years, and if the company be wound up before payment is made, he may prove for the amoimt (y). If the mine is solvent he receives his proportion of the assets on the above footing, if it is insolvent then he pays his share of the deficiency. But in cither case he is entitled to have the concern valued as a going concern (z). There is no custom that for the purpose of ascertaining his share of assets or deficiency all arrears owing by other members are to be treated as good ()•) Patent Floor Cloth Co., Dean and («) SMrreff's Case, 14 Eq 417 (lilbert's Claim, 26 L. T. 4G7. (.r) Bache's Case, W. N. 1872 187 ir^'l 'J' ^™'«™' ^,,^\ 737; and see (j/) Prosper United Mining' Co.,' E. p. llartlaivi v. General Exc?iamje Banh, 14 Palmer, 7 Ch. 28fi. ^'l\^r]k , nAr. W Frank Mills Mininj Co., 23 Ch. (0 5 Ch. at p. 740. Div. 52, company. THE COMPANIES ACT, 1862. 353 ■debts, and all tlie members treated as solvent (a), and the fact that the Sect. 158. accounts of retiring members have always been made out on that footing does not establish such a custom (a). A custom may be proved to relinquish ■without discharging arrears (b). The Stannaries Act, 1887, s. 21, now provides that the valuation as between the relinquishing and continuing shareholders is to be made upon the basis that all the continuing shareholders have also at the same time relinquished their shares. A contributory of the company, having bought up a debt of the company Contributory for a less sum than is actually due thereon, may prove for the full amount buying up debt of the debt, and not merely for what he has paid for it (c). "^ company. But this is not so in the case of a person standing in a fiduciary relation towards the company, for to such an one the rule will apply which forbids a trustee to make a profit by buying up an incumbrance on the trust estate. Upon these principles, and also upon the ground that the debentures in question had been improperly issued to promoters, and that knowledge of that fact must be attributed to the director, Malins, V.C., held that a director who, after the commencement of the liquidation, bought up debentures at 25 per cent., could not prove for 100 per cent. On appeal James, L.J., and Amphlett, J. A., approved the principle upon which the V.O. had proceeded, implying, it is conceived, that that principle was applicable to a director ; but the case was compromised upon the terms of the director being paid in full the amount he had paid with interest at 5 per cent (d). The distinction between this case and that of a director taking an allot- ment of debentures at a discount upon the same terms as the public (e) is obvious. A claim under a winding-up in respect of a policy of life insurance is Policy-liolder. not affected by non-payment of the premiums after the commencement of the winding-up, i.e., after the presentation of the petition on which an order is afterwards made. The condition of the policy is that the holder shall pay the premium to the directors of the company within a limited time, and if, before the time for payment has arrived, or the days of grace have expired, the winding-up has destroyed the functions of the directorSj the policy- holder cannot be affected by the non-payment (/). The date, however, at which the policy is to be estimated is, not the date of presentation of the winding-up petition, but the date of the winding-up order (g). Premiums, therefore, which fall due in the interval between the presentation of the petition and the order must be paid before the policy is presented for valuation — for the policy must be valued as a current valid engagement. And the policy-holder will not be allowed to set off the amount of the valuation against the premiums (h). The result, therefore, is this, that non-payment of a premium, whose days of grace expired before the presentation of the petition, avoids the policy (i), but non-payment of a premium which fell due after the presentation, or whose days of grace expired after the presentation, does not do so. But if (a) Frank Mills Minimi Co., 23 Ch. (/) Cook's Policy, 9 Eq. 703. Div. 52. (j) Lancaster's Case (Alb. Arb.), Eeil. (6) Bodmin United Mines, 23 Beav. 370. 76 ; 16 Sol. J. 103 ; 14 Eq. 72, n. ; Wall- (c) Sumher Ironworks Co., 8 Eq. 122. Of berg's Case (Eur. Arb.), Reil. 65 ; L. T. 50 ; course fraud may exclude the right : Jones 17 Sol. J. 69 ; Soldich's Case, 14 Eq. 72, 1. Gordon, 2 App. Cas. 616. 80 ; but see Bell's Case, 9 Eq. 706, 720, and (d) Imperial Zand Co. of Marseilles, E.p. infra, p. 356. larking, 4 Ch. Div. 566. (A) Wallberg's Case, uU supra. (e) Compagnie Generale, Campbell's Case, (i) Subject to note (m), infra. 4 Ch. D. 470. 2a 354 THE COMPANIES ACT, 1862. Sect, 168. ^ policy-holder in the latter case wishes to prove on his policy he must first make payment of all premiums which fell due before the winding-up order, whether the days of grace expired after the order or not (A). If the premium be an annual premium payable by quarterly instalments, payment may have to be made of the premiums for the current year (l). If there was no hand competent to receive a premium whose days of grace expired before the presentation of the petition, as where the assuring com- pany had transferred its business to another company, and the latter, being in liquidation, could not receive the premium, and the former had no office or agent, the non-payment by a policy-holder who has not novated (m) will not avoid the policy (m). Valuation of In estimating the amount for which the holders of current Life policies policy ; are entitled to prove in the liquidation of a life assurance office, it was held by James, V.G., in Bell's Case (o), that the amount is the sum which would be required by a solvent assurance office, having the same rate of premiums and the same amount of proprietary capital as the company in liquidation, in order to grant to the policy-holder a policy of the same amount, under the same conditions, whether ordinary or special, at the same premium ; or, in other words, the proof will be for the capitalized difference between the increased premium required by such a company, having regard to the state of health of the life insured, and the premium formerly paid to the company in liquidation. The case was, however, disapproved by Lord Cairns in Lancaster's Case (p) ; and his Lordship there held that the amount for which the policy-holder is to be admitted to prove is the difference between the present value of the reversion in the sum assured at the decease of the life and the present value of a life annuity of an amount equal to the pure premium without the loading. The time as from which the valuation is to be made is the date of the order to wind up — the tables to be employed, the Seventeen Offices' Experience Tables — and the rate of interest 4 per cent. And this rule was followed where the life insured was in India, and not under the control of the policy-holder (j). Subsequently Bomilly, M.E., held that in these cases the rule in BeWs Case, and not that in Lancaster's Case, is to be followed (r). of annuity. An annuitant is entitled to prove for the estimated value of the annuity (s), but his claim is not an " immediate claim " for the purpose of immediate payment out of a fund set apart upon amalgamation for payment of immediate claims (t). The claim on an annuity contract will be for the present value of the annuity calculated according to the tables, where they can be ascertained, of the company originally granting the annuity, and where those tables cannot be ascertained, then the Government Annuitants' Experience Tables ; and the time as from which the valuation will be made is the date of the order to wind up («). Life Assurance In ^'liQ conflict of opinion which has thus arisen with respect to the Companies Act, ,,, _,. „, , „ 1872. W Wallberg's Case, vht supra. (q) Slator's Case (Alb. Arb.), Eeil. 71. (!) Hort's Case (Eur. Arb.), L. T. 112, (r) English Assurance Co., ffoldich's 114; 17 Sol. J.765; S.C, ICh. Div. 307. Case, 14 Eq. 72. (m) Conqiuist's Case (Eur. Arb.), L. T. (s) Bunt's Annuity Case, 1 H. & M. 79. G7 ; 17 Sol. J. 328 ; S. 0., 1 Ch. Div. 334. (i) Wyatt's Case (Alb. Arb.), Eeil. 42. {») Conquest's Case (Rm.Arb.^jL.T. 121. (u) Lancaster's Case, libi supra. See (o) 9 Eq. 706 ; and in ^yarna^'s Claim, further as to the tables on which the cal- 18 W. R. 1097. culation is to be taken, Watt's Case (Alb. (p) (Alb. Arb.), Reil. 76 ; 16 Sol. J. 103 ; Arb.), 16 Sol. J. 517. 14 Eq. 72, n. THE COMPANIES ACT, 1862. 355 ■valuation of current life policies, the Life Assurance Companies Act, 1872 Sect. 1 58. (35 & 36 Vict. c. 41), provides with, respect to companies the commencement ~- of whose winding-up is subsequent to the 6th of August, 1872, that the value of annuities and policies shall be estimated in manner provided by the first schedule to that Act (a;), being the method adopted in Lancaster's Case (v. supra). The section does not apply to any winding-up commenced before the date above given unless the Court having cognizance of the winding-up so order, which order that Court is empowered to make, if it think it expedient so to do, on the application of any person interested in the winding-up. Lord Westbury, in the European Life Assurance Society Arbitration {y), European adopted the method of valuation provided by this Act. "■ '*''*'">"■ " Where a creditor has a claim which is admissible as a contingent claim, CoNiiNaENT that ought to be admitted to the catalogue of claims admissible to proof in '^i"*-''*'^- the winding-up. Such a proof is not a proof for anything payable in proesenti, but it is admissible as a proof for something which may ripen into a right for present payment " (z). Thus, where a company are lessees, the lessor is entitled to enter a Lessor to claim (a) for future rent, whether the lease have been assigned by the com- "o'^P^'^y- pany to a purchaser (6) or not (c) ; and where, in Scotland, a company are feuars or assignees of the original feuars, the superior is entitled to enter a claim in respect of the capitalized value of future feu duties (d). But where a claim is made for payments accruing due after winding-up there . must be shown a liability or obligation existing at the commencement of the winding-up (e). The fact that the company were then legal owners of a property subject to a rent-charge does not of itself establish that subsequent instalments of the rent-charge are provable (e). And though such claim may be entered for the whole estimated value of the future rent, yet the lessor, having been paid all rent accrued due, is entitled to no present right at all as between himself and creditors who have a present claim — and on the payment of a dividend it has been held that he is not entitled to have a dividend on the estimated amount set apart to secure the future rent (c). In the same view the Court has refused, in a winding-up under supervision, to impound out of the assets a sum equal to the aggregate future rent, or any other sum, or if such sum could not be raised, to admit the creditor to- prove. It is true that the applicant was a second mortgagee of the company's lessor, and that the judgment proceeds on there being no privity between him and the company, but it rests also upon the ground that there was no present breach and no constat there ever would be one (/). But where the question is not between the lessor, to whom no rent is presently due, and the creditors, but between such a lessor and the share- holders, who after payment of all debts are about to divide the remaining- assets among them, other considerations arise. In such a case an injunction has been granted to restrain the company (which was in voluntary liquida- (in) See the Act, infra. (d) Gartness Iron Co., E. p. Lord Elphin- iy) Wallberg's Case (Eur. Arb.), Reil. 65 ; stone, 10 Eq. 412 ; but see Blackburn L. T. 50 ; 17 Sol. J. 69. Building Soc, E. p. Graham, 42 Ch. Div. (z) Per James, V.C., Telegraph Construe- 343. tion Co., 10 Eq. 384, 388. (e) See Blackburn Building Soc, E. p. (a) Cf. E. p. Good, 14 Ch. Div. 82, 96. Graham, 42 Ch. Div. 343, stated more (6) Saytor Granite Co., 1 Eq. 11 ; 1 Ch. fully infra, p. 357. 77. (/) Westbourne Grove Drapery Co.,h Ch. (c) Horsey's Claim, 5 Eq. 561. J). 248. 2a2 356 THE COMPANIES ACT, 1862. Sect. 168. tion) from distributing the assets without providing for the claim of the '■ — lessor in respect of the rent which might accrue due {g) ; and in another case, in which the amount to be set apart was the question, it was held that there ought to be set apart such a sum as, when invested in Consols, would with half-yearly rests produce the aggregate amount of all the future rent Qi). The case may be said to be analogous to that of a proceeding for the distribution of assets, not to creditors, but to shareholders in a proposed reduction of capital under sect. 9 of the Companies Act, 1867 («. infra) ; in such a case the Court will see that the contingent claim is secured before the assets are distributed {€). Whether the existence of a contingent claim ought ultimately to prevent making the order (sect. Ill) for the dissolution of the company, qu(zre (k). Continuing Where a company has entered into a contract, in respect of which some damage has been sustained by the party contracting with the company at the date of the winding-up, and after the date of the winding-up there is a continuing breach of the contract going on, the damages will continue to run after the winding-up, and the claim in respect of such damages will fall within this section, notwithstanding the 25th rule of the Gen. Order of the 11th Nov. 1862 (u. infra), which provides that such claims " shall, so far as is possible, be estimated according to the value thereof at the date of the order to wind up the company " Q). In the case last mentioned. Wood, V.C, said (m): "I am rather inclined to the view that all creditors having claims which they cannot at the time establish as debts certain, but which still remain uncertain, have the power of making claims and proving the debts, irrespective of the circumstance of the debts being contingent, and there being no means at present of ascertain- ing them. The 25th rule only follows that, and says that the value of the debt must be estimated, so far as is possible, according to the value at the date of the order to wind up the company. It would not prevent any creditor who prefers to wait and see if the event takes place upon which the contingency is determined, from doing so, unless the time for bringing in claims has expired." Claims con- By Bankruptcy Act, 1869, s. 31 (and Bankruptcy Act, 1883, s. 37 (3) ), con- tingent at tingent debts and liabilities to which the bankrupt may become subject which mature <3uring the continuance of the bankruptcy are provable. And by Judicature during Act, 1875, s. 10, the rules in bankruptcy as to debts and liabilities provable winding-up. are to be applied. A claim, therefore, contingent at the commencement of the winding-up, which during the winding-up becomes ascertained, is prov- able at the ascertained amount, but not disturbing of course any dividend previously paid (ra). Thus where at the winding-up A. held a fire policy of the company, and after winding-up petition presented and order made, a fire occurred, he was entitled to prove for the full amount insured (n). And where a testator, who died (jf) Gooch V. London Banking Associa- with respect to proof on a policy or annuity : (ion, ;i2 Oh. D. 41; Elphinstonc \. Monk- "Ko doubt the day of the winding-up order land Iron Co., 11 App. Cas. 332. is the time at which the value of the (A) Oppenhcimer v. British and Foreign policy or annuity is to be calculated; but /!ank, Ch. D. 744. subsequent facts may be given in evidence (0 Telegraph Constntction Co., 10 Eq. for the purpose of shewing what the real 384. value was at that time ; " and see Bell's (/j) Haytor Granite Co., 1 Ch. 77. Case, 9 Eq. 706, 721. (0 Trent and Humber Co., K p. Cambrian (») Macfarlane's Claim, 17 Ch. D. 337 ; Steam Paeket Co., R Eq. 396 ; 4 Ch. 112. and see Great Britain Mutual Society, 19 (m) Eq. 400 ; and see Holdich's Case, Ch. D. 39 ; 20 Ch. Div 851 U Eq. 72, 80, where Romilly, M.R., -said THE COMPANIES ACT, 1862. 357 insolvent, had covenanted for payment of £5000 within a month after the Sect. 168. death of his wife, and after his death and after judgment in an action for administration of his estate, but before certificate, his widow died, proof was admitted for £5000 less a rebate at 4 per cent, for the period between the judgment and the widow's death (o). But no claim can be admitted except in respect of a liability or obligation which existed at the commencement of the winding-up. Thus where the company were legal mortgagees in possession of property which was subject to a rent-charge created by deed, it was held that although an action of debt may be brought against the terre tenant for a rent-charge (_p), yet the rent- charge is not a debt — that the claim to recover it arises not out of contract but out of privity of estate, and that the liability is for breach of duty in not paying while in possession. And seeing that in the case before the Court the liquidators had given up possession or done their best to do so before the commencement of the period over which the arrears were claimed, no proof was admissible in the winding-up, although the liquidators did not convey the property to a grantee until two years later (q). When a company is being wound up, whether an action is brought by the SET-orF j company or a proof is carried in by a creditor of the company in the winding- up, a set-off of a liquidated sum was always admissible (r). Thus where A., being under liability upon his acceptance to a limited banking company, took an acceptance of the bank, which fell due and was dishonoured ; and subsequently an order was made for winding up the bank, and A.'s acceptance matured in the hands of the official liquidator, it was held that A.'s right of set-off was not interfered with by the winding-up order (s). And so where ascertained sums were due to and from A. and the company, there was a right of set-off, although the sum due to A. was not ascertained until after the winding-up commenced (t). Again, there may be a right of set-off against a debt due to the company of a debt due from the company, which the person desiring to make the set- off has acquired by assignment after the winding-up, if the assignment have been made in consequence of an arrangement made, or by reason of an equity arising, before the winding-up. Thus, where one, who was surety for a debt of the company before the winding-up, paid off the debt after the winding-up, and took an assignment of securities, among which was a promissory note of the company, set-off was allowed (m). But where, after a winding-up order, a company was under present liability in respect of dishonoured bills, and S. & Co. were under future liability in respect of bills not yet due, of which the company were holders, it was held that S. & Co. had no present right to set these off one against the other, and were not entitled to have their bills retained by the official liquidator until a right of set-off arose, but the official liquidator was under sect. 95 (q.v.) allowed to negotiate the bills accepted by S. & Co. (x). (o) Eitt T. Bridges, 17 Ch. D. 342. 1 Ch.538, next cited; and see Grissell's Case, ( p) Thomas r. Sylvester, L. R. 8 Q. B. 368. 1 Ch. 528, with respect to contributorics. (g) Blackburn Building Soc, E. p. (f) Progress Assurance Co., E. p. Bates, erotam, 42 Ch. Div. 343. 22 L. T. 430. M See 9 Q. B. Div. 667 ; E. p. James, («) Mosely Green Coal Co., Barrett's Case, 8 Eq. 225. (No. 2), 4 D. J. & S. 756. The set-off was (sj Anderson's Case, 3 Eq. 337 ; but upon against calls, so that except on the principle the point raised that a debtor to the com- stated in the text the case is no doubt, pany may thus, by buying up the accept- under this Act, overruled by Grissell's Case, ances of the company, set off his debt to 1 Ch. 528, ante, sect. 101. the prejudice of the other creditors, see the (a) Smith, Fleming, # Co.'s Case, 1 Ch. 538. remarks in Smith, Fleming, f Co.'s Case, 358 THE COMPANIES ACT, 1862. Sect 158 And where the liquidator after winding-up, in further performance of a '■ current contract of the company, supplied goods to one who was a creditor of the company in respect of a debt incurred before winding-up, the latter could not set off (y). since Judica- And sect. 10 of the Judicature Act, 1875, has imported into winding-up the ture Act ; rules as to mutual credits and set-off in bankruptcy (z). So that where the liquidator brought an action for a money demand, the defendant was entitled to set off unliquidated damages for breach of contract by the company (z). But where the liquidator's claim was in detinue the defendant could not set off, for the mutual credits clause (Bankruptcy Act, 1883, s. 38) is only applicable where the claims on each side are such as result in pecuniary liability (a). Moreover, even where the mutual credits clause is applicable, it applies only to the state of things at the date of the winding-up ; the rights of the parties are not to be altered byjjsubsequent transactions. Thus A. proved a debt against the company. So far as this proof was concerned it could be diminished by set-off only of amount due by A. to the company at the date of the winding-up, and established either at the time of proof or subsequently. After proof admitted A. assigned the debt to B. lonafide for value. B. sub- sequently assigned it to C. lona fide for value. Before the assignment to C. the oflScial liquidator took out a summons for misfeasance against B. After the assignment to C. an order was made against B. on the summons for payment of £2000. After this order had been made the official liquidator declared a dividend on the debt. Held : — (1.) If the debt had remained in B. he could not have set off the debt against the £2000, for at the winding-up he had no set-off, and he could not acquire a set-off by taking the assignment. Thus the company could have made B. pay the £2000, and have left bim to take a dividend on the debt, or possibly might as against him have said. You shall not take a dividend on the debt until you have paid the £2000. (2.) C. was enforcing the right of A., not that of B., and the fact that the debt had passed through B. to C. did not carry to C. equities that might have attached against B. The equities, if one may say so, do not run with the debt. If C. had been suing he would have sued in the name of A. (3.) There was probably no debt until the order for payment of the £2000 was made. The company had a right either to the property (which was shares) or to a money compensation. Before the order C. had become entitled to the debt. (4.) The dividend not being declared until after C. had become entitled to the debt there could be no set-off against the dividend. So that as against 0. there was no right to set off the £2000 either against the debt or the dividend on the debt (h). by policy- Where a policy-holder in the M. Company assigned his policy to the holder. trustees of tho M. Company to secure a loan, and the M. Company, on an amalgamation with the A. Company, assigned the mortgage debt and security to trustees upon trust to satisfy all claims then due from the M. Company, and subject thereto for the A. Company, the policy-holder (there being no novation) could not on being required to pay the mortgage debt claim in the winding-up of the M. Company to set off the estimated value of the policy— {\j) Inco Hall Co. v. Douglas Forge Co., 30 Ch. Div. 216. 8 Q. B. U. 179. (a) Eberle's Hotel Co. v. Jonas, 18 Q. B. (jr) Mersey Steel Co. v. Naylor, Benson, Div. 459. ij- Co., 9 CJ. B. Div. C48 ; 9 App. Cas. 434 ; (6) Milan Tramways Co., E. p. TImis, 22 Lee and Chapman's Case, 26 Ch. D. 624 ; Ch. D 122 ; 25 Ch. Div 587 THE COMPANIES ACT, 1862. 359 for his only right was, on payment of the debt, to haye from the trustees a Sect. 168. re-assignment of the mortgaged property, including the policy, on which the M. Company, and not the A. Company, were liable (c). There being no question of novation, the general question of set-off by a policy-holder did not arise in the case last cited. It will be seen, however, by the following cases that the claim of the holder of a current policy in a life assurance company in liquidation not being an ascertained and liquidated claim, could not be set off against a debt due from the policy-holder to the company. Thus, where a policy-holder has borrowed money from the company in which his life is insured, and has deposited his policy with the company as security for the loan, the liquidator in the winding-up is entitled to sue at once for the sum advanced, and a claim to set off against that sum the amount recoverable from the company in respect of the policy will not be allowed (d). The sum at which the current policy is estimated in the winding-up is not a sum due at all, but merely a sum arrived at in the winding-up for the purpose of regulating the proof of debts. If the company were still a going company, there could, of course, be no set-oflf between a sum due from policy- holder to company and a current policy. It made no difference that the company was wound up (c). Therefore, where the policy-holder was liquidating by arrangement, the trustee could not set off against the liquidators. Each party would have to prove, and there would no doubt be a set-off of dividends (e). Where it was a condition of the policy that the sum assured should not be payable until three months after the dropping of the life, and a winding- up order was made after the death of the person assured, but before the expiration of three months therefrom, no set-off was allowed, for the position of affairs must be determined at the date of the winding-up order (/). But if each of two life insurance companies hold a policy granted by the other, and both the lives fall in before the winding-up of one of the companies, but the sums assured are not payable till after the winding-up, then, both sums becoming payable after the winding-up, there is a right to set off the sums assured against each other (g). See further as to set-off, sects. 75, 101. The debentures of a company being choses in action not assignable at law Debentuebs. are prima facie, according to the ordinary rule, subject, in the hands of the Proof by bona assignee, to all the equities to which they were liable in the hands of the ■^ffyg"'''^' ^°''' assignor (h). Where, therefore, debentures, issued in the first instance in fraud of the company, found their way in the ordinary course of business into the hands of a bond fide purchaser for value without notice of the fraud, it was held that he must nevertheless hold them, subject to the equities attaching to them, and he was restrained from suing upon them at law (A). But the rule that a chose in action assignable only in equity must be assigned subject to the equities existing between the original parties to the (c) Bourne's Case (Alb. Arb.), Reil. 44 ; 648. 15 Sol. J. 653. (/) Delhi Bank Case (Alb. Arb.), 15 {d) Priee v. Parity (Alb. Arb.), Eeil. Sol. J. 923. 48 ; 15 Sol. J. 654 ; Parity's Case, 19 (g) Eagle Insurance Co.'s Case (Alb. W. R. 382 ; Gloag's Case (Eur. Arb.), L. T. Arb.), 16 Sol. J. 483. 82 ; 17 Sol. J. 534 ; Stevens' Case, NuttalVs (h) Athenaum Life Assurance Society v. Case (Eur. Arb.), h. T. 155 ; 18 Sol. J. Pooley, 1 Gifif. 102 ; 3 De G. & J. 294 ; 399. and see as to set-off, South Blackpool Hotel (e). E. p. Price, Se Zankesier, 10 Ch. Co., E. p. James, 8 Eq. 225. 360 THE COMPANIES ACT, 1862. Sect. 168. contract, is a rule which must yield, when it appears from the nature or — — terms of the contract that it must haye been intended to be assignable free fi'om and unaffected by such equities (i) ; or where the debtor has precluded himself from setting up such equities against the assignees (k). Thus, where a banking company gaye a letter of credit, containing a promise to accept bills to a certain amount drawn upon them, the particulars of which were to be indorsed, by persons negotiating bills under it, on the back of the letter of credit, it was held that, whateTcr might be the effect of the letter of credit at law, it constituted a contract to the benefit of which all parties taking and paying for bills on the faith of it, were entitled in equity, without regard to equities between the bank and the parties to whom the letter of credit was given («). So, where an antecedent contract had been entered into between the promoter of a company and certain persons, whereby the latter agreed to sell their business to the company when formed, part of the purchase-money to be paid in debentures of the company payable to bearer, and the agreement was carried into effect, and debentures given under the seal of the company covenanting for payment to " A., his executors, administrators, or assigns, or to the bearer hereof," it was held that although a bond or debenture could not covenant for payment to bearer so as to enable the bearer to sue upon it in his own name (I), yet that, the bonds having been issued upon a bargain which contemplated that the company should give debentures, which, so far as it was competent to them, should be payable to bearer, and which were therefore to be treated as money, the company had estopped themselves from setting up against the bearer equities to the benefit of which they would, under other circumstances, have been entitled (m). So, where the directors gave for value an instrument under the seal of the company, as to which there was some question whether it was not in fact a promissory note (n), although called on its face a "debenture," and which was in form an undertaking " to pay to the order of A. B.," it was held that the indorsee or transferee for value could prove free from equities (o). Lord Justice Wood there said (p) : " The authorities go to this, that where there is a distinct promise held out by a company, informing all the world that they will pay to the order of the person named, it is not competent for that company afterwards to set up equities of their own, and say that because the person who makes the order is indebted to them they will not pay." Higgs v. Northern Assam Tea Co. (j) is a similar case, in which the de- bentures were expressed to be payable " to A. B., his executors, administra- tors, or assigns"; and where the assignees, having been treated by the company as proprietors, and certificates issued to them describing them as " registered proprietors," were held entitled, iu actions brought against the (i) Agra and Mastorman's Bank, E. p. 458, commented on by Malins, V.C., in K Asiatic Banking Corporation, 2 Ch. 391, p. Colborne and Strawbridge, 11 Eq. 478, 397 ; and see Dickson v. Swansea Vah; ij-c, 494. Eailway Co., L. R. 4 Q. B. 44; and, as to (n) Whether an instinment under the a deposit note, Albion Bank y. Cooper, seal of a corporation can be a promissory W. N. 1874, 110. note, qucerc, see Crouch v. Credit Fonder of (i) E. p. Universal Life Assvrancc Co., England, L. R. 8 Q. B. 374. 10 Eq. 458 ; Romford Canal Co., 24 Ch. D. (o) General Estates Co., E. p. Citii Bank, 85. S Ch. 758. (0 See also Crovxh v. Credit Fonder of (jp) See 8 Ch. 762, and per Malins, V.C, England, L. R. 8 Q. B. 374. E. p. Colborne and Strawbridge, 11 Eq. 478, (m) Blakely Ordnance Co., E. p. New 495. ZaiUmd Banking Corporation, 3 Ch. 154 ; {q) L. R. 4 Ex. 387 ; and see E. p. Uni- »w\ see Aslatt v. Farqiiharson, 10 W. R. versal Life Assurance Co., 10 Eq. 458. THE COMPANIES ACT, 1862. 361 company in the name of the assignor, to recover free from a right to set off Sect. 158. a debt which could have been set off as against the assignor. There appears to be a difBculty — not upon principle, but upon the con- struction of the wording of the instrument — in reconciling with some of these cases the decision of Lord Cairns in lie Natal Investment Co. (r). There the debentures were in the form of undertakings " to pay to C, or to his executors, administrators, or transferees, or to the holder for the time being." His Lordship held that the word " transferees " was equivalent to " assigns," and that the further words, " to the holder for the time being," added nothing to the legal effect of the bond beyond this, that, to save the trouble and expense of assignment by deed, the company would recognise the holder as being in as good a position as if he had become assign by deed. The debentures were given in pursuance of an agreement for sale of land by C. to the company, which provided that part of the purchase-money should be paid in debentures, but did not specify any particular form. The holders of the debentures were held entitled to prove only subject to all equities between the company and C. ; his Lordship distinguishing Se Blahely Ordnance Co. (s) on the ground that there was not here an agreement for debentures in the particular form of being payable to bearer. Of this case it may be well to notice that it was not a case of set-off, but a case of failure of consideration for the debenture assigned, C. having wholly failed to make any title to the land he professed to sell. At any rate, the decision did not overrule the other cases {t), and must probably be taken to have been decided on its own particular facts (m). The foregoing cases establish this, that if the contractors, with a view to induce people to become assignees of instruments of this kind, represent that there are no equities, or that they will not. take advantage of any equities which there are, between them and the original contraotees, this affords a good defence to any subsequent attempt on their part to set up these equities. And as to Be National Investment Co. (a;). Lord Cairns did not there dispute that such a representation, if made out, would produce this effect, or say that such a provision was beyond the competency of the parties, but only thought that the mere fact of making an instrument payable to the holder did not amount to such a representation (?/). But it is quite another thing to say that the contractor has any power to alter the rights of the original contractee, so as to make the instrument negotiable in such a way as that the holder may sue upon it in his own name, and that a lona fide purchaser may acquire a good title, although claiming under a person taking by fraud upon the original contractee. Thus where the debenture was in form a promise to pay to bearer, and was held not to be a promissory note, it was held that a hona fide holder for value deriving title from a person who had stolen the debenture could not recover upon it (z). If bonds or debentures, invalid in the first instance, have been transferred, (r) 3 Ch. 355. See E. p. Colborne and Fancier of England, L. R. 8 Q. B. 374, 385. Strawhridge, 11 Eq. 478, 493, where Malins, («) See as to this case some observations V.C, professed himself unable to reconcile of Kay, J., in Romford Canal Co., 24 Ch. it with E. p. City Bank and E. p. New D. 85, 91. ^ Zealand Banking Corporation, vhi supra. (x) 3 Ch. 355. (s) 3 Ch. 154, V. supra. (y) See Crouch v. CrMt Fonder of Eng- (t) See per Wood, L.J., General Estates land, L. K. 8 Q. B. at p. 385 ; Romford Co., 3 Ch. 758, 762 ; per Bramwell, B., Canal Co., 24 Ch. D. p. 91. Higgs V. Northern Assam Tea Co., L. R. («) Crouch v. Crmt Fonder of England, 4 Ex. 387, 395 ; per cur. Crouch v. Credit L. R. 8 Q. B. 374. 362 THE COMPANIES ACT, 1862. Sect. 158. and there be circumstances sufficient to affect the company with notice of the transfer, and with that knowledge judgment has been allowed to pass in an action brought by the assignee in the name of the original holder for interest due or to recover the principal, the company cannot subsequently dispute their validity. Thus the assignee of debentures issued in payment for work done by a person who was styled an honorary director, but whose name was not inserted in the list of directors, was, under such circumstances, held entitled to prove on the debentures, he having no notice that the assignor had acted as a director (a). So where the transferee of Lloyd's bonds had been registered by the company, and had recovered from the company in an action an amount of interest due, it was held that, whether the bonds were valid or invalid in the hands of the original holder, the official liquidator was precluded from questioning their validity in the hands of the bond fide purchaser for value without notice (i). Carey's Claim (c), in the same company as the case last referred to, is a much stronger decision. There two of the bonds had been transferred ; the transfer of one was registered, but of the other was not. No action had been brought. But it was held that, one transfer having been registered, the other would have been registered if required, and the holder, who was the bond fide purchaser for value without notice, was allowed to prove in respect of both bonds. It is conceived that this decision and Aihenoium Life Assurance v. Pooley (d), in which there was both registration and payment of interest (e), cannot possibly stand together. Although that case has never been over- ruled, Malins, V.C., more than once expressed himself as of opinion that it could no longer be considered as good law (/). In another case (g) before the same learned judge, where assignment had been made of a debenture which was in form a bond, conditioned to be void on payment to A. B., " his executors, administrators, and assigns," it was held that, by accepting notice of the assignment, the company had — although the assignment was not registered — ^precluded themselves from setting up as against the assignee the equities which they might have set up against the original holder. So in an earlier case, where debentures payable to K., his executors, administrators, or "registered assigns," were transferred, and, no books being kept for registration of debentures, the secretary told K. and his transferee, on their applying for registration, that it was unnecessary, and made no mention of a claim by the company against K., the transferee was held entitled to prove free from equities (h). In E. p. Colborne and StrawhriJge (;), instruments issued in payment to vendors of land, described on their face as " debenture bonds," and stamped as bonds, but expressing that the company "bind themselves and their successors to pay to the bearer," were held to be promissory notes, or if (a) JIuleit's Caso, 2 J. & H. S06 ; as to (c) As to payment of interest, see also the original invalidity of the debentures in Exmmth Docks Co., 17 Eq. 181. such a case under the 7 & 8 A'ict. u. 110, (/) See E.p. Charley, 11 Eq. 157 ; Carey's a. 29, soe Stems' Case, .Tohn. 480. Claim, W. N. 1873, 17 ; Brunton's Claim, (b) Re South Essex Estmry Co., E. p. 19 Eq. 302. C/ior%,ll Eq. 157. (o) Hercules Insurance Co., Brunton's (c) W. N. 1873, 17. Caie, 19 Eq. 302. (d) 1 Giir. 102 ; 3 De G. & J. 294, v. (A) Zishman's Claim, 23 L. T. 40. '"i"'"- (O 11 Eq. 478. THE COMPANIES ACT, 1862. 363 not promissory notes, negotiable instruments, upon which holders for value Sect. 158. without notice were entitled to prove free from equities. ~" But, qwere, whether an instrument under the seal of a corporation can be a promissory note (h). In Romford Canal Co. (V) the power to borrow arose upon a proper resolution being passed under the Companies Clauses Act, 1845. The resolution was passed at a meeting at which there was not a quorum, and was consequently invalid. The debentures were issued to a contractor who knew of the invalidity. He transferred some to C. for value without notice, and the transfer was registered. P. and T. became equitable transferees of others without notice of the irregularity. It was held that the company was estopped as against C, and that as between the company on the one hand and P. and T. on the other the latter had an equity to prevent the former from setting up the invalidity. But although the company in such a case may be estopped it does not follow that other holders of securities of the company which rank pari passu with the invalid securities are estopped also (to). As to the issue of debentures at a discount, see ante, p. 171. Scrip issued in England by the agent of a foreign government on nego- Scrip, tiating a loan, whereby the bearer is promised, after all instalments have been duly paid, a bond for the amount with interest, is by the custom of all the stock markets of Europe a negotiable instrument, which passes by mere delivery to a bond fide holder for value, and confers a title independent of the title of the person from whom he took it (n). This decision rests upon two independent grounds, the one the negotia- bility of the instrument according to the custom of the British Stock Exchange, the other that of estoppel (o). The instrument, if not strictly negotiable, may have to be treated as such between the parties (o). Negotiability is to be determined not by the law of the country in which the instrument is issued, but by the law of England (p). Several cases upon shares in American or other railway companies dealing American with the question of negotiability and of the extent of authority given by railway execution in blank of the transfer form or transfer power endorsed upon the certificates of such shares, are here collected for convenience of reference (2). In windings-up which commenced before the 1st November, 1875, and Secured to which therefore the 10th section of the Judicature Act, 1875, does not Creditors. apply (r), the following authorities upon the rights of secured creditors are still applicable. Where a creditor of the company holds security for his debt he is entitled to prove in the winding-up for the whole amount that is due to him at the time of sending in his claim, and not merely, as in bankruptcy, for the balance remaining due after realising or valuing his security (/). (K) Cronch, Y. Credit Fonder of England, Ch. D. 659; Colonial Bank v. Cody, 15 L. R. 8 Q. B. 374. App. Cas. 267. (0 24 Ch. D. 85. (5) Easton v. London Joint Stock Sank, (m) Moviatt v. Castle Steel Co., 34 Ch. 34 Ch. Div. 95, on app. Sheffield v. Div: 58. London Joint Stock Bank, 13 App. Cas. 333 (») Goodwin V. Bobarts, L. R. 10 Ex. 76, Colonial Bank v. Eepworth, 36 Ch. D. 36 337 ; 1 App. Cas. 476. Williams v. Colonial Bank, 36 Ch. D. 659 , (0) Easton v. London Joint Stock Bank, 38 Ch. OW. 388 ; Colonial Bank v. Cady, 15 34 Ch. Div. 95, 117 ; siib nom. Sheffield v. App. Cas. 267 ; London and County Bank London Joint Stock Bank, 13 App. Cas. 333, t. London and River Plate Bank, 20 Q. B. 342. ; but see Colonial Bank v. Hepworth, D. 232 ; 21 Q. B. Div. 535. 36 Ch. D. 36. (r) Suche ^ Co., 1 Ch. D. 48. (p) Picker V. London and County Bank, (s) Kellock's Case, 3 Ch. 769 ; London, 18 Q. B. D. 315 ; Williams \. Colonial Bombay, ^c, Bank, E.p. Cama, 9 Ch. 686. Bank, 38 Ch. Div. 388, 403, 408 ; S. C. 36, 364 THE COMPANIES ACT, 1862. Sect 168 By sending in the claim is meant a putting in of the claim tinder the '- Gen. Order of the 11th Nov. 1862 (Rules 20-28) (t) ; and it has been held (u) that the mere presentment of a guarantee by a notary^ a mere demand, that is, for payment, with no record of it kept, was not such a sending in of the claim as was intended in KellocJc's Case (f). If, before sending in his claim, the creditor realise his security (u), or receive payments on account of it (x), or enter into a contract for the sale, which in equity is equivalent to the sale, of the property included in it (y), he can then only prove for so much of his debt as remains unsatisfied after deducting the amount realised on the security. But if, a previous claim having by mistake been made for too small a sum, a claim be carried in, after realising the security, for the proper amount, it may be that the claim will be considered as made when the previous claim was made (z). Kelhck's Case is applicable only in the case in which the company are in the position of mortgagors, and the same principles do not apply at all where the company are in fact in the position of mortgagees. Thus, where the B. Company, at D.'s request, gave to C, who had been instructed to purchase cotton for D., a letter of credit, authorizing him to draw upon them, the bills to be accompanied by bills of lading for cotton, to be handed to the company on their accepting the bills — and bills were accordingly drawn and accepted by the company ; but before they came to maturity the company went into liquidation, and C. sent in a claim for the whole amount in the winding-up, and subsequently received the proceeds of the sale of the cotton, he was allowed to stand as a creditor only for the balance (a). And in any case in which a bill-holder receives the proceeds of a security under the rule in E. p. Waring (b), he can stand as a creditor only for the balance, although the security be realised after proof made for the full amount. The proof will in such a case be reduced by the amount received by the bill-holder from the security, and any dividends received on the excess of the original over the reduced proof must be refunded (c). If a company give security for a debt in various ways by documents involving only the liability of the company itself, as, e.g., by acceptances for the amount of the debt, and debentures issued by the company as collateral security for the same debt, the creditor can prove only for the sum that is due to him, and cannot prove, in addition to the amount of his debt, for the amount secured by the collateral security (d). The rule in bankruptcy, that there cannot be a double proof against the same estate in respect of the same debt, is applicable to the case of a winding-up (e). If security be given for the debt of a company in pursuance of an ordinary contract of suretyship, — as where directors gave to the company's bankers (i) Kellock's Case, 3 Ch. 769 ; London, (6) 19 Ves. 345. Bombay, Jc., Asso- Reil. 11; 15 Sol. J. 886; Hawtrey's Case elation, 9 Eq. (.'43, 649. (Alb. Arb.), Reil. 138 ; 16 Sol. J. 713 (see (0) Family Endouitncnt Society, 5 Ch. Alb. Arb. cases, infra). 118, 132, 137. (S) India and London Life Assurance (/) Family Endouincnt Society, 5 Ch. Co., 7 Ch. 651. 118; and see National Frovinoial Life (A) 16 W. R. 958 ; 18 L. T. 668. Assurance Society, Kettle's Case, 9 Eq. (») 4 Ch. 662. 306 ; cf. Sanies' Case (Eur. Avb.), L. T. THE COMPANIES ACT, 1862. 373 the advances were made. Before any of the promissory notes were given Sect. 158. S. & K. had transferred their business to a company, anJ the company had the benefit of the advances. At the time when the notes were given, G. stated by letter that he looked to S. & K. and knew nothing of the company in the matter. More than a year afterwards G. applied to the company for, and. the company paid him, a year's interest. It was held that this did not rebut G.'s express repudiation of the company as his debtors, and that no novation had been effected. It is conceived that Teete's Case (k) cannot stand with the above decisions, of payments of In that case the A. and B. companies having become amalgamated under a "" annuity. deed of amalgamation, whereby the B. company covenanted to indemnify the A. company against its liabilities, the holder of an annuity, granted by company A., had received payments of the annuity from company B. It was held that, as the claim had been recognised by the B. company by paying the annuity, the effect was the same as if a new annuity had been granted, and proof for the value of the annuity was allowed in the winding-up of the B. company. With respect to policy-holders in amalgamated companies it has been Payment of argued in a great number of cases that the fact of continuing to pay the premiums to annual premiums to the new company after the amalgamation amounts to "'"^ Company, an acceptance of the liability of the new company in place of that of the old company. This point will be found particularly discussed in In re National Provincial Life Assurance Society (I), where Malins, V.C, shewed considerable inclination to accede to the argument that from payment of the premiums to the new company for a considerable time a novation must be inferred by acquiescence, although he would have felt a difficulty in holding that payment for a short time (as of one premium only (m) ) would have shewn an intention to release the original company, and accept the liability of the substituted company. It will be observed, however, that that case was not, as would appear from the head-note, an actual decision, but that, while expressing an opinion, his Lordship expressly abstained from deciding the point, and made no order upon the petition. Subsequently, upon that case coming before Bacon, V.C, in the form of a claim in the winding-up of the society, there being evidence that the person paying the premiums knew, though it did not appear that he had formal notice of, the successive transfers of the business of the society, and it being the fact that upon the dropping of the life assured he had sent in his claim upon the policy to the new company, it was held that the payment of the premiums and the claim were conclusive evidence of his having accepted the new company as his debtors ; and on appeal this decision was affirmed (n), but on additional evidence and on a completely different ground (v. infra, p. 375). It does not appear, however, from subsequent cases that the Court will be very ready to draw the inference that a novation was intended from the mere fact of the payment of premiums (o). Thus, in In re Manchester and London, &c., Association (p), James, V.C, said : "It appears to me monstrous that a person having a contract of this kind is to be told that he has lost his right under his original contract, and must take such remedy as he may get from some other office, because he pays his premiums and takes receipts at (k) Be British Provident, ^c, Co., i Society, Fleming's Case, 6 Ch. 393. N. R. 48. (o) See, however, the notes of cases iff (0 9 £q. 306. the Albert Arbitration, infra. (m) Kp. Blood, 9 Eq. 316, 321. (p) 9 Eq. 643, 649. («) National Provincial Life Assurance 374 THE COMPANIES ACT, 1862. Sect. 168. tlie place wliei^e he is told to do so ; '' and, again, in Griffith's Case {q), sitting '- as Lord Justice : " It seems to me beyond all question that, whatever may be said as to the effect of continuing to pay premiums for a great number of years, — although I am not myself disposed to attach very much importance to such payment in any case — the payment of premiums for any number of years, where there is a particular contract between the two companies [providing expressly for the policy-holders who shall not accept the liability of the new company], cannot have the slightest operation." A policy of insurance is not a new contract every year, but is a contract made once for all, with a condition to be performed de anno in annum, and if the condition is not performed in any year the contract is at an end (r). It is established by In re Manchester and London, &c., Association (s) that the payment of premiums at the office of the new company, and taking receipts in the name of the new company, will not of' itself, in the absence of any evidence of notice of the amalgamation and assent thereto by the creditor, whether given by the form of the receipts or otherwise, effect a novation. And there does not appear to be any case in Chancery in which the pay- ment of premiums, after notice of the amalgamation, has been held of itself sufficient to bind the creditor (0 ; but it is apprehended from the remarks of Hatherley, L.C., in Re Manchester, &c.. Association («), and from the case next mentioned below, that a novation may be thus effected. His Lordship there said : " Of course if he (the policy-holder) knew all that had been done, there would have been an acceptance on his part of the new company, and that company would become his debtor instead of the old one ; and, taking his receipt from them, he could only maintain his claim by shewing that he had taken a receipt from persons who were competent and proper to give him that receipt " (for otherwise the policy would have dropped from non- payment of the premiums). The case of In re Times Life Assurance, &c., Co. (x) is the case which approaches most nearly to the point in question, for it would appear from the judgment of the Lord Justice Giffard, that, apart from the acceptance of a bonus from the new company, which there was in that case, he would have been prepared to hold that the policy-holder, having been informed of the facts, and having received a request (founded on the statement that another and a different company was responsible for the future) that he would pay his premiums to the new company, and having assented to that request, had released the old company, and accepted the liability of the new company. Life Assurance In consequence of the decisions in the cases above cited, and of those in ^°™Pj'"'^' the similar cases noticed below, which were decided in the Albert Arbitration, " ' " the Life Assurance Companies Act, 1872 (35 & 36 Vict. c. 41), v. infra, pro- vides, by sect. 7, that in the case of a transfer or amalgamation either before or after the passing of that Act (6th of August, 1872) no policy-holder in the transferor company shall by reason of payment of premiums to the transferee company made after the passing of the Act, or by reason of any other act done after the passing of the Act, be deemed to have abandoned any claim which he would have had against the transferor company on due payment of premivims to such company, or to have accepted in lieu thereof (7) In ro jlfcdlcal Invalid, cjc,, Societi/, in Chancery only. In the Albert Arbiti'a- G Ch. 374, 379. tion— WmimcA's Case, Reil. Alb. 101 ; 15 (r) Per Iliitherloy, L.C., see 5 Ch. 638, Sol. J. 767 ; and Fagan's Case, 15 Sol. J. 642 ; contrast BtuMcn's Case (Alb. Arb.), 855 (_v. infra), appear to go quite the Roil. 120 ; 16 Sol. ,1. AG2. length of holding this. (s) 9 Eq. 643 ; 5 Ch. 640. (u) See 5 Ch. 642. (t) This is to be understood of the cases (.r) 5 Ch. 381. THE COMPANIES ACT, 1862. 375 the liability of the transferee company, unless such abandonment and ac- Sect. 158. ceptance have been signified by some writing signed by him or by his agent lawfully authorized. If a policy-holder in the old company be offered and accept a honus in the Bonus, new company with a fair understanding and knowledge that he is taking what he could not be entitled to except on the assumption that he has become a policy-holder in the new company, then he accepts the offer of a novation so made to him. And such an acceptance is evidence which will override strong evidence in the opposite direction; as where the policy- holder was asked to send in his policy to be endorsed, and he never did so (y) ; where, the policy being in the A. Company, the A. Company trans- ferred its business to the B. Association, under terms which appeared to keep those companies separate, and the B. Association was afterwards amalgamated with the Albert Company (z) ; where the agreement for amal- gamation expressly provided for the case of policy-holders who should not accept the liability of the new company, and the policy-holder had not applied for a siibstituted policy in the new company (a). Where, iipon the amalgamation, a policy-holder sent in his policy to have Indorsemeat an indorsement made on it, on the part of the new company, " guaranteeing °^ policy, its due fulfilment," and paid one premium to the new company, and on the dropping of the life sent in his claim to the new company, it was held that he had not merely accepted the liability of the new company as a guarantee but had effected a complete novation (i). Where a policy-holder sent in his policies for indorsement, and thereupon the secretary sent him a form for his signature, whereby he was to assent to the transfer of the liability upon the policies to the new company, and he refused to sign this document, and the policies were thereupon returned to him without indorsement, there was no novation (c). Where, upon the transfer of the business of company A. to company B. a policy-holder in A. paid one premium to A., by whom it was received as agents for B., and then the life dropped, and subsequently the policy was indorsed with a memorandum that the property of B. should alone be liable) and that the claim should be payable by instalments, company B.'s contention that there was no novation, and — ^under the circumstances under which com- pany A. was wound up — no consideration for the memorandum, failed (d). Where a policy-holder in the N. Life Co. was also a shareholder in the Policy-holder N. Fire Co., and, as such shareholder, executed, upon the amalgamation of also share- both those companies with the B. Company, the deed of settlement of the "°''^^'^- B. Company, and took shares in the B. Company in exchange for his shares in the N. Kre Co. ; and under the amalgamation the B. Company took all the assets of the N. companies, and undertook to indemnify those companies against all liabilities, it was held that under those circumstances the old debt no longer subsisted as between the policy-holder and the N. Life Co., for (semhle) a sort of merger or extinguishment of the debt had taken place. The policy-holder was, therefore, not allowed to prove as a creditor in the winding-up of the N. Life Co. (e). Where the guarantee fund of a mutual assurance society was, under the Mutual assur- ance society. (J/) Times Life Assurance Co., 5 Ch. 381. Case, 6 Ch. 374. (a) Anchor Assurance Co., 5 Ch. 632. (d) Evens' Claim, 16 Eq. 354-. (a) Medical Invalid, ^c. Society, Spen- (e) National Provincial Life Assurance eel's Case, 6 Ch. 362. Society, Fleming's Case, 6 Ch. 393, cited (6) International Life Assurance Society, also supra, p. 373. This case was remarked U. p. Shod, 9 Eq. 316. upon and disapproved by Lord Cairns in (c) Medical Invalid, ^c. Society, Griffith's Shayler's Case (Alb. Arb.), 16 Sol. J. 501. 376 THE COMPANIES ACT, 1862. Successive transfers. Albert Arbitration. Sect. 158. resolution of a general meeting, paid off and put an end to, and subsequently, by a deed by which all the shareholders were bound, all the assets of the society were handed over to another association, and it was agreed that all the liabilities of the society in respect of the policies should be paid and satisfied out of the funds of the association, a member of the society was held by tliat deed to have effected a complete novation in respect of his policy entered into with the society (/). If the A. Company transfer its business to the B. Company, and subse- quently the B. Company transfer its business to the C. Company ; then, if no novation be established as to the first transaction, the creditors of the A. Company remain unaffected by any subsequent transactions between the B. and C. Companies to which the A. Company was no party, even though notice of such transactions be brought home to them {y). Prom the following short notes of the cases on novation decided by Lord Cairns as arbitrator in the Albert Life Assurance Co. Arbitration it will be seen that the doctrine of novation was in that arbitration carried consider- ably beyond the point at which it had been left by the cases in Chancery ; while, on the other hand, the principles afterwards adopted by Lord Westbury in the European Arbitration were of a character to refuse to impute to the policy-holder an intention to accept a substitution of liability tipon evidence other than unequivocal of his understanding and acceptance of the offer of substitution made to him. The word " novation," although proper enough in the case of an annuity contract, is not, properly speaking, applicable to the case of a policy of assurance. The policy-holder's contract, as an absolute contract, is only for the year or half-year covered by the premium he has paid. "With respect to everything beyond that the contract is conditional, and the sole founda- tion of his right is his paying the premium, and paying it to the proper person. It is not a question of novation, it is a question of fact. Did he pay the premium to the right person ? (h). This, it is submitted, is the fundamental proposition which lies at the root of all Lord Cairns' decisions as respects policy-holders. Payment of The onus of explaining the apparent irregularity of paying premiums to, premiums to and taking receipts from, some company other than the contracting company new company ; jjgg qjj ^jjg policy-holder. In default of his being able to shew that such payments and receipts were made to, and given by, the new company as agents of the contracting company, his original contract with the latter will have terminated for want of payment of premiums to them (i). Payment of premiums by cheques drawn in favour of the old company or bearer will not be regarded as giving the assuring companies notice of the character in which the money is paid {k). But where the policy-holder went abroad leaving directions with his solicitors to pay the premiums, and during his absence the amalgamation took place, and neither his solicitors nor he had any notice of it ; and his Policy. Nature of contract. (/) Merchant's and Tradesman's Assur- ance Society, 9 Kq. 694. (g) Manchester and London, cfc, Associa- tion, 9 liq. 64.'} ; 5 Ch. 640 ; and soe judg- ment of James, V.C., in Anchor Assurance Co., 5 Ch. 632, 636, n. (A) Western Life Assurance Society, Sudden's Case, Reil. Alb. 120, 122 ; 16 Sol. .J. 462 ; Whitehaven Bank Case, Reil. Alb. 62, 64 ; and other cases cited below, passim. (i) Family Endomnent Society, Ken- nedy's Case, Reil. Alb. 5 ; 15 Sol. J. 729 ; and see Bank of London, ^c. Association, Lancaster's Case (No. 2), Reil. Alb. 95 ; 15 Sol. J. 748 ; Western Life Assurance So- ciety, Sudden's Case, Reil. Alb. 120 ; 16 Sol. J. 462 ; Olazebrook's Case, Reil. Alb. 135 ; contrast Coghlan's Case, BlundeU's Case (Eur. Arb.), infra, p. 379. (A) Sivaz' Case, Reil. Alb. 104; 16 Sol. J. 590. THE COMPANIES ACT, 1862. 377 Bolioitors and, after his return to England, he, paid the premiums to the new Sect. 158. company, and further he addressed a letter to the new company asking wiiat was the selling value of his policy, there was no novation, for under the circumstances the new company had been treated throughout as the agents of the old®. The receipt of a circular giving information as to the amalgamation and after notice the subsequent payment of premiums to the new company without protest S'^*" 5 will effect a substitution of liability (m). Subsequent payment of premiums subject to, and on the footing of a under protest ; solemn protest against the amalgamation in writing addressed to the company, will not effect such a substitution (n) ; but a payment of premiums without reservation after a mere verbal protest will do so (o). A distinct and continuing verbal protest, however, shewing clearly that the policy-holder had no intention of accepting a substitution of liability, and that subsequent payment of premiums was made (as in the case of this company it could under the provisions of the deed of amalgamation be made) to the new company only in order to keep on foot the existing policy and the liability of the old company thereon, will be effectual (p). Where, by the rules of the old company, thirty days' grace were allowed for the payment of premiums, but by those of the new company a calendar month only, and after the amalgamation a policy-holder in the old company insisted that he was still entitled to the thirty days (from Feb. 10), and his claim was allowed, this was not such a protest as to enable him to retain his claim against the old company (q). Where the policy-holder went to the ofBce of the company and protested against the amalgamation, but on being told that he had no alternative but either to pay the premiums to the new company, or to let the policy drop, he did pay the premiums to the new company and took receipts from them, the protest was not effectual to keep alive the liability of the old company ; for that although he had paid the premiums under the wrong impression that it was necessary to go over to the new company, yet he had actually paid under that impression, and had therefore accepted the liability of the new company (r). Where a policy of insurance on the life of a husband has been effected in in case of the names of the trustees of his marriage settlement (s), or has been assigned pol'^y 'n to such trustees (i), a substitution of liability may, having regard to the ' trusts of the settlement, be effected by such a payment of premiums by the life assured as would, according to the preceding cases, have effected such a substitution if made by the trustees themselves. A policy-holder borrowed money of the assuring company on the security by receiver in of her policies and of a jointure rent-charge payable to her by a receiver in Chancery ; Chancery, and by a consent-order it was provided that the receiver should pay to the trustees of the assuring company both the interest on the loan (i) Cmmi D'Alte's Case, 17 Sol. J. 365. wanted to support, the case. (m) Whitehaven Bank Case, Reil. Alb. (p) Medical Invalid, ^c. Society, Dom- 62; Medical Invalid, ^c, Society, Wer- ing'a Cas«, Reil. Alb. 144; 16 Sol. J. 673 ; nineh's Case, Reil. Alb. 101 ; 15 Sol. J. and see Clarke's Case, 16 Sol. J. 752. 767; Fagan's Case, 15 Sol. J. 855. (g) Warn^s Case, Reil. Alb. 113; 16 (») Western Life Assurance Society, Sol. J. 631. Wood's Case, Reil. Alb. 54; 15 Sol. J. (r) Western Life Assurance Society, 693. Howell's Case, Reil. Alb. 116 ; 16 Sol. J. (p) Western Life Assurance Society, 632. Bivaz' Case, Keil. Alb. 104 ; 16 Sol. J. (s) Family Endowment Society, Balfour's 590; cf. Kelly's Case (Eur. Arb.) L. T. Case, 16 Sol. J. 534. 89, 92; where Lord Westbury said the (<) Western Life Assurance Society, An- protest did not improve, but was not drew's Case, Reil. Alb. 107 ; 16 Sol. J. 609. 378 THE COMPANIES ACT, 1862. by mortgagor. Receipt refer- ring to the policy as one of the old company. Claim. Bonus Sect. 158. and the premiums on the policies. A payment of premiums under these circumstances by the receiver to the new company after an amalgamation, of ■which the policy-holder knew nothing (all notices relating thereto having been sent to the receiver), was no bar to her claim against the old company, for the receiver was the agent of the trustees of the assuring company ; and the only persons, therefore, who had paid premiums to the new company were the trustees of the old company (u). If the mortgagor receives the amalgamation circulars and pays the premiums, the mortgagee is bound (x). A reference by letters in the margin of a receipt for premium given by the new company, identifying the policy as a policy of the old company, does not derogate from the force of the receipt as a receipt given by the new company in a question of substitution of liability (y). The sending in a claim, upon the dropping of the life insured, to, and its admission by, the new company after premiums have been paid to, and receipts given by, that company effects a substitution of liability, although no notice of the amalgamation has been given to the policy-holder (z). The receipt by a policy-holder of a circular offering him four methods of receiving a bonus from the new company, and informing him that if no reply were received from him by a particular date the amount would be added to his policy, to which the policy-holder sent no reply, was held to place him in the same position as if he had accepted a bonus (a). Where the policy-holder chose present payment, and the bonus was paid to him accordingly, there was novation (b). Where the policy-holder made an inquiry as to bonus, under circum- stances which tended to shew he meant boniis in the transferee company, there was novation (c). But where the agent of the company told the policy-holder that he had a bonus circular for him, and the policy-holder thereupon replied that the paper need not be given him, as he did not recognise the new company, but continued to hold to the old company, his claim against the old company was unaffected (d). An annuitant who, after receiving a circular giving him notice of the amalgamation, allows an indorsement to be placed on his annuity deed, stating that the capital of the new company will be liable for payment of the annuity, and not stating that such liability is an additional, as dis- tinguished from a substituted, security, has thereby accepted the liability of the now company (e). AVhere all annual payments in respect of an endowment contract bad been made before the amalgamation, but after the amalgamation the holder took in the contract to be indorsed by the new company, with a voucher binding them to satisfy his claims, he had thereby accepted their liability (/). Indorsement on policy. («) Power's Case, 16 Sol. J. 732. (x) Weminck's Case, Eeil. Alb. 101 ; 15 Sol. J. 767 I of. Vivian's Case (Eur. Arb.), L. T. 169 ; 18 Sol. J. 758. (i/) The cases cited above, and in parti- cular Anchor Assuranco Co., A'nox's Case, Reil. Alb. 132 ; 16 Sol. J. 673. (z) Western Life Assurance Society, Snddm's Case, Eeil. Alb. 120 ; 16 Sol. J. 462. Contrast Wilson's Case (Eur. Arb.), L. T. 158 ; 18 Sol. J. 758. (n) Medical Invalid, ^c. Society, Allen's Case, Roil. Alb. 127; 16 Sol. J. 657; Olazeirook's Case, Bcil. Alb. 135 ; and see Weminck's Case, Eeil. Alb. 101 ; 15 Sol. J. 767, where the receipt of the circular was acknowledged; contrast Coghlan's Case (Eur. Arb.), Eeil. 46; L. T. 31, 38; 17 Sol. J. 127 ; Conquest's Case (Eur. Arb.), L. T. 67 ; 17 Sol. J. 328 ; 1 Ch. Div. 334. (5) Knox's Case, Eeil. Alb. 132; 16 Sol. J. 673. (c) Holmes' Case, Eeil. Alb. 110. (d) Clarke's Case, 16 Sol. J. 752. (e) Sale's Case, Eeil. Alb. 11 ; 15 Sol. J. 886. (/) Family Undourment Society, Haaa- trey's Case, Keil. Alb. 138 ; 16 Sol. J. 713. THE COMPANIES ACT, 1862. 379 Where upon the amalgamation a trust fund had been set apart by the Sect. 1S8. old company to satisfy any claim on a policy issued by the old company ^ which the new company should not satisfy, a policy-holder who had accepted jj^y substituted policies in the new company had no claim on the trust fund (g). accepted. Where upon the amalgamation of the W. Company with the A. Company Annuitant also the A. Company agreed, out of its assets, to indemnify the W. Company shareholder, against all claims and demands ; the holder of an annuity contract, who had not in any way accepted the substituted liability of the A. Company, but who, being a shareholder in, and director of, the W. Company, had exchanged his W. shares for A. shares, was not on that account precluded from claim- ing against the W. Company, for the joint effect of his being both share- holder in the A. Company and policy-holder in the W. Company was not to merge or extinguish his debt, but only to dedicate such portion of capital as might be called up from him to indemnify the old company (h). Where the A. Company has effected with the B. Company re-insurance Ke-insurance policies on lives insured by the A. Company, and the A. Company is sub- policies, sequently wound up, see as to the measure of the liability of the B. Com- pany, Be Albert Life Assurance Co. (i). The principles upon which Lord Westbury in the European Arlitration EnEOPEAi^ regarded questions of novation will be found conveniently and exhaustively Aebitration. laid down in the two cases on the subject which were first heard, viz., Goghlan's Case (k) and Blunddl's Case (I). These principles may be shortly stated as follows : — In any case of alleged novation, the transferee company must be required Onus is on to prove : — First, that that company had legal power to grant new policies company, to the policy-holders of the transferor company upon -the same terms as were contained in those poHcies, or to adopt and indorse the transferor company's policies, so as to make them equivalent to original policies of the transferee company ; secondly, that this power on the part of the transferee company was made known to the policy-holder, and that an offer was made to him to accept either a new policy or an indorsed policy from the transferee com- pany; thirdly, that the acceptance of such offer by the policy-holder is evidenced by acts which unequivocally denote his understanding and acceptance of that proposal (m). It is not for the policy-holder to prove that he did not intend to accept by way of substitution the liability of the transferee company. That is quite an inversion of the proper order. It is incumbent on the company which alleges the substitution of novation to prove an agreement by the policy- holder to make that novation, and to prove acts of the policy-holder in the absence of any written declaration, which unequivocally involve the evidence of that intention on the part of the policy-holder to accept the new company instead of the old (m). To raise the new contract there must be, on the part of the transferee company, a power to make it; there must be, on the part of the poKcy- holder, a knowledge of the company's right so to contract with him; and there must be conduct on the part of the policy-holder, when it is an in- (g) Sovereign Life Assurance Co.'s Case, (0 (Eur. Arh.), Reil. 84 ; L. T. 39 • 17 15 Sol. J. 816 ; Bownng's Case, 16 Sol. J. Sol. J. 87. 305 ; Butler's Case, 16 Sol. J. 399 ; and see (m) See (Eur. Arb.), Reil. 54, 99 ; L. T Mi's Case, 16 Sol, J. 341. 30, 46 ; 17 Sol. J. 91. (A) Shayler's Case, 16 Sol. J. 501, dis- (») See (Eur. Arb.), Reil. 61 ; L. T. 38 ■ approving Fleming's Case, 6 Ch. 393. 17 Sol. J. 129. Contrast in the Alb. Arb! ??N'^/l®'''".Vs^''n ., .. . S^ennedy's Case, Lancaster's Case, Btidden's (A) (Eur. Arb.), Reil. 46 ; L. T. 31 ; 17 Case, supra, p. 376. Sol. J. 127. 380 THE COMPANIES ACT, 1862. Sect. 158. Payment of premiums to new company, Receipt of payments of annuity. complete contract, or where there is no evidence in writing, that unmistak- ably shews his intention to accept the new contractor and to discharge the old one (o). The transfer of its business by company A. to company B. involves an authority to company B. to carry on that business, including the power to receive, in the case of policies granted by company A., the premiums payable on those policies. Company B. will receive those premiums by virtue of the authority impliedly given in the transfer, and the premiums thenceforth paid will prima facie be considered as received by company B. under that implied authority. The onus of proving the contrary is on the company (p). A covenant by company B. to indemnify company A. is evidence in the policy-holder's favour, for it necessarily involves the continued existence of the liability indemnified against (_p). The form of receipt given by B. for premiums is immaterial. If that company gives a receipt in its own name it is equivalent only to an attorney giving under a power of attorney a receipt in his own name without adding that he signs as attorney. Under such circumstances the receipt must be referred to the right that the attorney had to receive, and unless it can be shewn that he had some other right to receive than the delegated authority, the receipt must be referred to that authority. It follows that it is by no means clear from the mere fact that a policy-holder has paid his premium to, and accepted the receipt of, company B., that he therefore paid company B. in its own right, and not in the right of company A. The bare fact of such payment and acceptance is no evidence of intention by the policy-holder to accept a substitution of liabiKty (q). The intention to eifect a novation must be proved : it cannot be inferred from the heading of the receipt (r). " The obligation, the onns prdbandi, the duty of proving, lies on the company that alleges a novation. It is a question of intent, to be evidenced in the clearest manner, and unless that intent is evidenced, the simple payment of the premiums will be referred to the old contract, and the old rule, which will be considered as still kept up by the assignee of the business, who, by virtue of the transfer, has a right to receive the premiums on old policies as authorized by the company granting those policies " (s). The enactment of sect. 7 of the Life Assurance Companies Act, 1872 {v. infra), shews that the legislature thought more unequivocal evidence of intention should be required than has been sometimes accepted. " I cannot legislate to the extent of saying that I will -require a writing. But I will require evidence of an intention to make a new contract as plain as if it was expressed in writing " (<). The principles thus enunciated are illustrated by a number of cases which may now be conveniently collected in the same order as has been observed with the decisions in Chancery, and in the Albert Arbitration. A. was the grantee of an annuity contract in company I. Immediately after the grant I. transferred its business to the E. Society, and purported to (o) Sec (Eur. Arb.), Kcil. 64 ; L. T. 39 ; 17 Sol. J. 130. (p) See (Eur. Arb.), Reil. 93 ; L. T. 43 ; 17 Sol. J. 90 ; cf. Conquest's Case, 1 Ch. Div. 334, 340. (g) See (Eur. Arb.), Reil. 94 ; L. T. 44 ; 17 Sol. J. 90; cf. Swift's Case, Kelly's Case (Eur. Arb.), L. T. 89. (r) Contrast in the Alb. Arb. Knox's Case, Reil. 132 ; 16 Sol. J. 673. (s) See (Eur. Arb.), Reil. 97 ; L. T. 45 ; 17 Sol. J. 91. Contrast in the Alb. Arb. Kennedy's Case, and others, supra, p. 376. (0 See (Eur. Arb.), Reil. 94, 96 ; L. T. 44,45; 17 Sol. J. 90. THE COMPANIES ACT, 1862. 381 dissolve itself under a power in its deed of settlement. A. received payment Sect. 158. of the annuity from E. for seventeen years, gave receipts to E., and sent to E. certificates of her identity, in which the annuity was described as payable by E. At the end of the seventeen years A. obtained from the Court of Chancery an order to wind up I., and in the European Arbitration the order was held to have been properly made, for there was no novation (m), and the dissolution was not effectual as against creditors (x). B. was the grantee of an annuity contract in company X. For two years X. paid the annuity, and then, having transferred its business to company Y., an order was made to wind up X., and the usual advertisements were issued for creditors to come in and prove against X. B. made no proof. Y. paid the annuity for three years, and then transferred to the B. Society E. paid the annuity for six years. E. being then wound up, B. claimed to prove against X., and was held entitled so to do. For B. had never done anything but receive the ajmuity from the successive companies by whom, according to the arrangements made between the companies themselves, it was payable ; and as to the winding-up, until there was default in paying the annuity there was nothing to prove (_y). If a policy-holder in company A. receive notice of the transfer to company ^^„^g "[(, B. of the business of company A. his subsequent payment of premiums to, new company, and acceptance of receipts from, B. cannot possibly, if made under strong, although not continuing, protest, and with a refusal to have anything to do with any one but A., work a novation (z). If the policy-holder have received no notice of the amalgamation, and have continued to pay his premiums to the same local agent, the acceptance of receipts given in the name of the transferee company is utterly insufficient to shew an intention to effect a novation (a). If a policy-holder in A. receive a letter requesting and encouraging him to become a policy-holder in B., and then, without answering the letter, he immediately goes and pays his premium to B., this may be a practical answer to the letter and an acceptance (6). Payment of premiums to B. without protest, after receipt of a circular announcing the amalgamation arid stating that the terms and conditions of the policies "will remain unaltered," does not effect a novation (c). But where A. was a policy-holder in X., and X. transferred to Y., and Y. to Z., and ten years after an order had been made for winding up X. the executors of A. claimed to prove against X., it was held that by payment of premium to Y. and Z., A. had novated. For A. was a person to whom knowledge of the winding-up order could fairly be imputed, and thereafter he must be taken to have known that the implied authority to Y. and Z. to receive the premiums as agents of X. came to an end (d). («) Barnes' Case (Eur. Arb.), L. T. 72 ; Eeil. p. 90 ; I. T. p. 43 ; referring to Sivaz' 17 Sol. J. 594 ; of. Gardiner's Case (Eur. Case (Alb. Arb.), Keil. 104 ; 16 Sol. J. Arb.), L. T. 63 ; 17 Sol. J. 464 ; where 590. But there is no case in which Lord there were both payment of premiums to, Westbury held novation to have been and payment of the annuity by, the trans- actually so effected. feree company. The case was however (c) Conquest's Case (No. 1) (Eur. Arb.), argued on the effect of a statutory enact- L. T. 67 ; 17 Sol. J. 328 ; 1 Ch. Div. 334 ; ">™*- „ Swifes Case, Kelly's Case (Eur. Arb.), (x) See supra, pp. 40, 331. L. T. 89. (y) Bums' Case (Eur. Arb.), L. T. 127. (d) Carpmael's Case (Eur. Arb.), L. T. 95. (z) CogUan's Case (Eur. Arb.), Reil. 46 ; There was a further ground for the decision, L. T. 3-1 ; 17 Sol. J. 127. see infra, p. 383 ; c/. Lines' Case (No. 1) (a) Blmdell's Case (Eur. Arb.), Reil. 84 ; (Bur. Arb.), L. T. 151 ; 18 Sol. J. 418 (Lord L. T. 39 ; 17 Sol. J. 87. Romilly). Q>) See in Blundell's Case (Eur. Arb.), 382 THE COMPANIES ACT, 1862. Sect. 158. Claim. Bonus. Indorsement on policy. The sending in a claim, upon the dropping of the life insured, to and its - admission by the new company after premiums have been paid to that company, is not sufSoient eyidence to effect a novation (e). This decision follows from those noticed below, which shew that there is, unless the contrary is shewn, a double right of proof. To prove, therefore, an in- tention to hold B. liable is not equivalent to proving a release of the liability of A. If the policy-holder after notice of the amalgamation received from the transferee company notice that he is entitled to a reversionary bonus, and took no notice of the letter (/) ; and even, semble, if, after having been told in the notice of the amalgamation that the terms and conditions of his policy " will remain unaltered " and that union increases bonus, and that in all future bonuses he will "participate on an equality with the other policy- holders in the conjoint companies," he were to accept the bonus (g), this will not effect a novation; for the benefit will have been accepted as an addition, and not by way of substitution. If a policy-holder refuse to exchange, or to take an indorsement on, his policy, this, of course, is strong evidence against novation (/). If the notice of amalgamation state that the policy will remain unaltered and premiums are paid to the new company without any notice taken of an offer of exchange or endorsement, there is no novation (h) ; and even if the policy be sent in for indorsement and be indorsed to the effect that the B. Company shall be liable for the payment of the sum assured (with profits) (i) or (without profits) (k) this will not be a novation, if, upon the wording of the documents, the indorsement be a contract additional to, and not substi- tutional for, the original contract. The words " with profit " in such a case are descriptive only of the nature of the policy in the old company, viz., a participating policy. SemUe, if the indorsement goes beyond the original contract and confers an additional benefit, the original contract will not be superseded, but there will be two coherent and concurrent obligations, unless it be shewn that the second purports to effect an alteration in the terms of the first (J). Where A. and B. were respectively policy-holders in W., and W. trans- ferred to X., X. to Y., and Y. to Z., and A. accepted from X. an additional guarantee, and then X. being wound up, B. accepted an indorsement from Y., and premiums were of course in succession paid to each of the four companies. Lord Westbury held that there was no novation, but a right of proof against each of the four companies {m). An indorsement by the transferee company that, in consideration of an additional premium, the assured might go abroad "without prejudice to this assurance " was not evidence of novation {n). But where, the transferor company having been wound up in 1862, the (o) Wilson's Case (Eur. Arb.), L. T. 158 ; 18 Sol. J. 758 (Lord Romilly). Con- tr.ast Sudden's Case (Alb. Arb.), supra, p. 378. (/) Coghlan's Case (Eur. Arb.), Keil. 46; L.T. 31; 17 Sol. J. 127. (g) Conquest's Case (No. 1) (Eur. Arb.), L. T. 67 ; 17 Sol. J. 328 ; S. C. 1 Ch. Div. 334. (A) Conquest's Case (No. 1), vbi supra; Swift's Case, Kelly's Case (Eur. Arb.), L. T. 89. (.) Scott's Case (Eur, Arb.), L. T. 109. (A) ffoH's Case (Eur. Arb.), L. T. 109 ; S. C. 1 Ch. Div. 307. (0 Scott's Case, Sort's Case, vAi supra. It is extremely difficult to gather accurately the effect of these cases, for Lord Westbury seems to have changed his mind between the first and second hearings. (m) Harman's Case, Pratt's Case (Eur. Arb.), L. T. 129 ; 18 Sol. J. 25 ; but see infra, p. 384 («) (a). (n) Gram's Case (Eur. Arb.), L. T. 157 ; 18 Sol. J. 758 (Lord Romilly). But see S. C. 1 Ch. Div. 307. THE COMPANIES ACT, 1862. 383 poliey-liolder in 1868, discovering that the life was two years older than Sect. 158. was stated in the proposal for the policy, took from the transferee company an indorsement reducing the sum assured accordingly, novation was held to be proved (o). The effect of a statutory enactment, after the amalgamation of companies Statutory A. and B., that B. shall be liable on any policy whether issued by A. or B., l'"'^''''?- is, not to create a novation, but to define the nature of the right against B. (p). The result of the decisions in several of the foregoing cases being that the Concurrent policy-holder had a right of proof against more than one company, Lord P™"'- Westbury further held that, where this was the case, he might prove against all concurrently, subject of course to the limitation of not receiving more than 20s. in the pound (j). But Lord Eomilly, succeeding after Lord Westbury's death to the office Lord of arbitrator, refused to allow the policy-holder to exercise individually Komilly. his right of concurrent proof, and held that, at any rate as a matter of convenience, the liquidator of the transferor company must prove en Hoc against the transferee company the latter's liabilities under a covenant to indemnify (r). The tendency of the decision last noticed is obviously to merge that which Lord Westbury held to be the right of the individual policy-holder {q) in a liability, not to the policy-holder, but to the transferor company. It is, in fact, a sign of a divergence from the lines marked out by Lord Westbury, which afterwards increased to such an extent, as that on questions of novation Lord Eomilly must be said to have wholly parted company from his predecessor. Thus Lord Eomilly held that where A., after offer of either an exchange of policy " without altering any of the terms, &c.," or of an indorsement " in a manner which will fully secure the responsibility and guarantee" of the transferee company,— accepted an indorsement whereby " in consideration of A.'s agreeing to the transfer of this policy" to the transferee company, that company agreed to perform all the stipulations of the policy " on behalf of" the transferor company; and again in the case of B., who under similar circumstances accepted an indorsement nearly identical with that in Scott's Case and Hort's Case (s), and containing no such words as "agreeing to the transfer, &c.,"— there was a novation (t). And although upon the words " agreeing to the transfer, &c.," the decision in the former of these cases might perhaps be reconciled with those of Lord Westbury, and upon the language of the amalgamation circular a distinction might perhaps be found in the case of the latter, the difficulty cannot thus be evaded, for Lord Eomilly expressly stated that he could not distinguish Pratfs Case (u) before Lord Westbury, and refused to follow it. After stating that he found it impossible to reconcile the decisions his Lordship said : "Having arrived at the conclusion that it is necessary that I should follow either Lord Cairns or Lord Westbury, I have come to the conclusion that I must follow Lord Cairns." And again : " Lord Westbury seems to have held . . . that the three parties must concur and all join together to make a fresh contract in order to constitute novation. Now, (o) Carprmel's Case (Eur. Arb.), L. T. (r) Lines' Case (No. 2), Leah's Case ™; ^ „ Ideas' Case (Eur. Arb.), L. T. 167 ; 18 Sol' (p) Gardiner's Case (Eur. Arb.), L. T. J. 879. 63; 17 Sol. J. 464. ^ ^^ ^ ^ (s) (Eur. Art.), L. T. 109 ; see «.^nfra, p. 384 («) (a). („) (Eur. Arb.), L. T. 129 ; 18 Sol. J. 25. 384 THE COMPANIES ACT, 1862, Sect. 169. I shall not hold that doctrine ; it is not doctrine that I think is to be found in the cases." In this sentence appears to be involved a complete departure from that which was the very basis of Lord Westbury's decisions. Consistently with these statements Lord Eomilly held novation to be effested by payment of premiums after notice of successive amalgamations, although no notice had been taken of bonus circulars, and an offer of indorse- ment had not been accepted (a;) ; and also, under similar circumstances, where an indorsement had been taken (y) ; and, re-hearing Earmarks Case and Pratt's Case (z), reversed the decision of his predecessor in the arbitration (a). European The appeals brought in the European Arbitration under the special Act ^'''e^is*'"" (38 & 39 Vict. c. clvii.) did little or nothing to decide between the con- appea s. flfoting opinions thus expressed on the question of novation. Sort's Case (b) and Grain's Case (c) were carried on appeal (d), and, in- dependently altogether of the question of novation, were held to be governed by the particular provisions of the deed of settlement. The policy-holder had contracted for payment out of a fund which, by the constitution of the company, imported into the contract with the policy-holder, was liable to be transferred to another company. The fund having been transferred under the power, the policy-holder was by his contract bound to follow it, and independent of novation the original owners of the fund were discharged. Sarman's Case (z) was also appealed (e) and decided upon similar prin- ciples. The policy-holders there had votes, and it was held that the minority were bound by the transfer carried out under the deed by the vote of the majority. Cocker's Case (/) added to the foregoing a decision that the fund handed over became general assets of the transferee company, and that the transferor company were under no obligation to see it appropriated towards payment of the poKcies handed over : and in Bowse's Case (g), the Court refused to find a distinction from Sort's Case in the fact that the policy did not expressly refer to the deed of settlement. The only two cases decided on the footing of novation were Conquest's Case (h) and Miller's Case (i). The former of these proceeds upon the footing that where, in the absence of a special power in the deed, a transfer is made, and the policy-holder is told to pay his premiums to the new company, such a payment is no evidence of novation, a decision which to a great extent supports Lord Westbury's views on this subject. The latter was a case in which there was made on the policy an indorsement which was held from its form to constitute a complete novation. General scheme 159. The liquidators may, with the sanction of the Court (a), of liquidation ^j^gj-Q {jijg company is beinsr wound up by the Court or subject to may be sane- r J o tr j j tisned. the Supervision of the Court, and with the sanction of an extra- ordinary resolution (|3) of the company, where the company is being wound up altogether voluntarily, pay any classes of creditors iu full, or make such compromise or other arrangement {j) as (.c) Benjamin Smith's Case (Eur. Arb.), (c) (Eur. Arb.), L. T. 157 ; 18 Sol. J. L. T. 173. 758. (!/) aianfioliTs Case (Eur. Arb.), L. T. (rf) 1 Ch. Div. 307. 173. (e) 1 Ch. Div. 326. (z) (Eur. Arb.), L. T. 129; 18 Sol. J. 25. (/) 3 Ch. Div. 1. (a) 19 Sol. J. 08. ((/) 3 Ch. Div. 384. (4) (Eur. Arb.), I.. T. 109; 17 Sol. J. (A) 1 Ch. Div. 334. 765. (i) 3 Ch. Div. 391. THE COMPANIES ACT, 1862. 385 the liquidators may deem expedient with creditors or persons Sect. 160. claiming to be creditors, or persons having or alleging themselves to have any claim, present or future, certain or contingent, ascer- tained or sounding only in damages against the company, or whereby the company may be rendered liable (S). (o) Gen. Order, Nov. 1862, Eule 50 ; (7) Cf. s. 136. Comp. (W. Up) Act, 1890, s. 12 (1). (5) Joint Stock Companies Arrangement (;8) ss. 129, 139. Act, 1870, s. 2. As to the effect of this section, and in particular as to the application of sect. 136 to a winding-up under supervision, see the notes to sect. 160. A claim made against a company in voluntary liquidation was under sect. Voluntary 138 submitted to the Court for adjudication. After some proceedings a wmding-np. compromise was entered into by the liquidator and sanctioned by an extra- ordinary resolution of the company. It was held that although the winding- up was altogether voluntary, it was not competent for the liquidator to enter into such a compromise without the sanction of the Court, the Court having seisin of that particular claim for the purpose of adjudication ; but that the compromise having been sanctioned by a general meeting, the onus of im- peaching it was thrown upon the parties who objected to it (h). The Court has no jurisdiction to compel the liquidator to consent to a Consent of compromise with a creditor (V). liquidator. And where a petition for the sanction of the Court to a compromise with creditors under this section and sect. 2 of the Joint Stock Companies Arrange- ment Act, 1870, was presented by a person who was not a creditor, but had bought up the debts and petitioned, in fact, for his own personal benefit, the Court held that, even if there were jurisdiction, no order ought to be made on the petition (Z). Under 19 & 20 Yict. c. 47, s. 90, and 21 & 22 Vict. c. 60, s. 19, a compromise Compromise, was sanctioned whereby a creditor for unpaid purchase-money accepted half his demand, and certain contributories were taken off the list (m). A compromise which has been approved by the shareholders, but upon a suppression of material facts, may be set aside. Thus, where a company had contracted to purchase an estate, and the contract not having been com- pleted, the matter was compromised in the winding-up, but there was con- cealed from the meeting which approved the compromise the fact that the beneficial owner of the estate was one of the directors of the company, and that there was therefore a question whether the contract was valid at all, the compromise was set aside (n). If the necessary consents to a compromise have in fact been given the Technical Court will not be astute to find technical defects in the proceedings, e.g. that informalities, the proper order of the several proceedings has not been followed (0). 160. The liquidators may, with the sanction of the Court (a), Power to where the company is being wound up by the Court or subject '^o^P'^''™'^^- to the supervision of the Court, and with the sanction of an extraordinary resolution (j3) of the company where the company (k) Lama Coal Co., E. p. Miller, 2 Ch. 528. ®^2. (ffl) Central Darjeeling Tea Co., W. N. (I) International Contract Co., Hanhey'a 1866, 361. Case, 26 I. T. 858; W. N. 1872, 63; and (0) Dynevor Collieries Co., 11 Ch. Div see s. 160 as to a contributory. 605. See as to this case, infra, note to (m) Bisca Coal and Iron Co., 30 Beav. s. 2 of the Arrangement Act, 1870. 2c 386 THE COMPANIES ACT, 1862. (7) Joint Stock Companies Arrangement Act, 1870, s. 2. Sect. 160. is being wound np altogether voluntarily, compromise all calls and liabilities 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 liability to the company, and all questions in any way relating to or affecting the assets of the company, or the winding-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 debt or liabilities, and to give complete discharges in respect of all or any of such calls, debts, or liabilities (7). (o) Gen. Order, Not. 1862, Eule 49; Comp. (W. Up) Act, 1890, s. 12 (1). (/3) ss. 129, 139. A going company has, as an incident to its existence, the same power of compromising claims against it as an individual has (p). This section and the preceding section appear to provide that a company in liqtuidation by its ofllcial liquidators, with the sanction of the Court, shall have exactly the same power of compromising both with its creditors and its debtors as an individual would have (q). And the power of compromise is not confined to entering into a com- promise with individual creditors or contributories, but extends to making a general compromise with contributories or creditors as a class, as e.g. a general compromise with contributories, notwithstanding differences of position among them, and without inquiring closely into the means of each individual contributory. This was held upon the construction of sects. 173 and 174 of the Indian Companies Act, No. X. of 1866 (r), which are almost verbatim the same as sects, 159 and 160 of this Act (s), and was followed by Eomilly, M.E., with respect to this Act (0- A compromise with contributories is of course pro tanto in derogation of the rights of creditors, and to this extent, therefore, it is conceived that under the Companies Act, 1862, a compromise which will prejudicially affect the creditors of the company, may be entered into by the oflcial liquidators with the sa,nction of the Court, and become binding upon the creditors, notwithstanding that they dissent and oppose the confirmation of the compromise. As where a compromise was sanctioned under which a call of £25 per share was made payable in instalments, and discount allowed on payment of the instalments before they became due, although the assets would not be sufficient to pay tlie creditors in full (u). Again, where it was shewn that it was practically impossible to recover Effect of section. Compromise with a class. (j>) Norwidi Provident Society, Bath's Case, 8 Cli. Div. 334. (}) Albert Life Assurance Co., 6 Ch. 381,386. (r) See L. R. 2 P. C. 490, where the sections are given. (s) Bank of Hindustan, CIdna, and Japan T. Uastem Financial Association, L. E. 2 P, C, 489. (() Commercial Bank Corporation of India and the East, 8 Eq. 241. (h) Smith, Knight Sf Co., 16 W. R. 1104, THE COMPANIES ACT, 1862. 387 calls from the shareholders in a foreign country, the Court sanctioned an Sect. 160. agreement whereby the official liquidator in consideration of a lump sum agreed to sell all the company's assets in that country, and to release all the company's rights against the shareholders there (a;). In this case there was no opposition. But it is submitted that it is only in this way, indirectly, that under the Act of 1862 a minority of dissentient creditors can be compelled to accept a composition in respect of what is due to them ; and quoere whether, as in In re Commercial Banh Corporation of India and the East («/), a dissentient creditor can under the Act of 1862 be directly compelled to accept a composition of 17s. in the pound. This point is put very clearly by James, L. J., in In re Albert Life Assurance Co. (z). The compromise which the Act authorizes is, " a compromise, in the one case, between the company and its creditors who choose to accept it, and in the other between the company and its debtors who choose to accept it. There is nothing in the Act which enables one creditor to bind another creditor to accept a compromise, or which enables one debtor to bind another debtor with respect to paying a composition." This is a difficulty for which sect. 2 of the Joint Stock Companies Arrangement Act, 1870 (v. infra), was intended to provide — and that section adds a power to enable a statutory majority of creditors to bind a minority to accept a compromise as between a company and its creditors. The Court has no jurisdiction to compel the liquidator to consent to a Consent of compromise with a contributory. The compromise can only be made with liquidator, the consent both of the liquidator and of the Court (a). It is not easy to say how far liquidators in a winding-up under super- Winding-up vision may by virtue of sect. 151 act without the sanction of the Court. "?4^'' super- In a case where the directors, after winding-up under supervision com- ''''^"'°- menced, purported to compromise with a contributory, and the liquidators were said to have adopted the deed, the House of Lords held the deed invalid, and it was said that no such release could be made but with the sanction of the Court (6). Lord Justice Giffard, however, thought that in such a liquidation the liquidator has, by sect. 151, authority to exercise the powers he would have in a purely voluntary winding-up, subject to any restriction imposed by the Court, and that any arrangement therefore which he might, with the sanc- tion of a general meeting, have made in a voluntary winding-up (e), he might make in a winding-up under supervision, and that the sanction of the Court would not be necessary unless a restriction had been placed upon his- powers (d). It is conceivable that, in Wright's Case (d), last referred to, sect. 139 is referred to by mistake for sect. 136 ; and it will be observed that if sect. 136 is to be taken to be applicable to a winding-up under supervision, a very important additional power of compromise is thereby given which in a compulsory winding-up is not, under this Act, applicable. For sect. 136 gives power to a majority of creditors to bind a minority, and disposes of the difficulty in this respect above referred to in all cases to which it applies. A comparison of sects. 136 and 159 of this Act, and sect. 2 of the Joint (x) Paraguassu Tramway Co., Wilson's son's Case, 7 Ch. 309 ; and see s. 159 as to Offer, 28 L. T. 463 ; W. N. 1873, 73. a creditor. (!/) 8 Eq. 241. (6) Jam^s v. May, L. R. 6 H. L 328. («) 6 Ch. 381, 386. (c) See s. 136. (a) Hast of England Banking Co., Pear- (d) Wright's Case, 5 Ch. 437. 2c2 388 'J'HE COMPANIES ACT, 1862. Compromise with directors Composition deed. Rescission of compromise. Sect. 160. Stock Companies Arrangement Act of 1870, will shew (e) how perplexing, even in a voluntary winding-up, are the enactments relating to powers of compromise, and the hybrid nature of a winding-up under supervision renders it even more diflcult to say what are the powers of compromise exercisable in that case. A liquidator who is entering into a compromise may of course for his own protection apply for the sanction of the Court ; and in a purely voluntary winding-up he may make a like application under sect. 138 (/). Where a compromise of certain claims by the contributories against the late directors of the company had been effected, and had been assented to by forty-nine out of fifty-one contributories and sanctioned by the Court, it was held that there was no jurisdiction to stay actions against the late directors commenced by the two dissentients {g). If a debtor relies as against execution creditors on a composition deed which has been assented to by the official liquidator, semble it is for the debtor to prove that the official liquidator was duly appointed, and was duly authorized to assent to the deed (h). The Court or the Judge in Chambers has jurisdiction to rescind a com- promise made with its sanction if obtained by misrepresentation («). The form of agreement of compromise in the rules (k) provides that, if the contributory does not perform the same, the official liquidator may enforce or abandon it; upon which it was held that the official liquidator was not precluded from abandoning the agreement by reason of having obtained a four-day order to enforce it, nothing having been done under that order (I). In sanctioning a compromise the Court is exercising a judicial discretion. The Court will, therefore, not give its sanction without having the means of itself forming an opinion of the propriety of the compromise proposed (m). But the sanction need not be that of the judge himself ; the approval of the Chief Clerk is sufficient. The parties have a right, if they wish it, to bring every question before the judge personally, but it is not necessary to do so to make the compromise binding («). A compromise entered into with a contributory in class A. does not dis- charge his transferor from liability as a contributory in class B. They do not stand to each other in the relation of principal and surety (o). But if the B. contributory is called upon to pay, his transferee remains liable, notwithstanding the compromise, to indemnify him (p). As between the limited and unlimited assets of an unlimited company whose contracts stipulate for a limit of liability, difficult questions arise as to the application of sums received under compromises. Some of these will be found referred to ante, p. 297. Sanction of ■Court. Compromise with class A. does not dis- -charge B. Apportion- ment. (e) See note to s. 136, supra, and to s. 2 of the Arrangement Act, 1870. (/) Scinde, Punjaub, ^c. Corporation, 15 L. T. 602. ((/) New Zealand Banking Corporation, E. p. Eankey, 21 L. T. 481 ; W. N. 1869, '-'26. (A) Drew v. Myers, 19 L. T. 740. (i) E. p. Clarke, 14 W. R. 856 ; 14 I.. T. 789 ; and see Central Darjeeling Tea Co., W. N. 1866, 361 ; E. p. Garstin, 10 W. R. 457 ; 6 L. T. 374. (k) See Gen. Order, Nov. 1862, Form 50, infni. (0 Legal, ^c, Co-operative Society, W. N. 1873, 135. (m) Northuniherland and Durham Dis- trictjiankiiig Co., E. p. Totty, 1 Dr. & Sm. 273; 6 Jur. (N.S.) 849; decided under the 21 & 22 Vict. c. 60, s. 19. (n) E. p. Garstin, 10 W. E. 457; 6 L. T. 374; and see Drew v. Myers, 19 L. T. 740. (o) Novill's Case, 6 Ch. 43; Hudson's Case, 12 Eq. 1; Helbert v. Banner, L. R. 5 H. L. 28 ; and see supra, p. 145. (p) Soberts v. Crowe, L. R. 7 C. P. 629 ; see further supra, p. 145. THE COMPANIES ACT, 1862. 389 161. Where any company is proposed to be or is in the course Sect. 161. of being wound up altogether voluntarily, and the whole or a po„er for portion of its business or property is proposed to be transferred liquidators to ij 1 T ■ 1 !• 1 n • n accept shares, or sold to another company, the liquidators of the first-mentioned &., as a consi- company may, with the sanction of a special resolution (a) of the gairrfproperty company by whom they were appointed, conferring either a of company. general authority on the liquidators, or an authority in respect of any particular arrangement, receiye in compensation or part compensation for such transfer or sale shares, policies, or other like interests in such other company, for the purpose of distribu- tion 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, policies, or other like interests, or in addition thereto, participate in the profits of or receive any other benefits from the purchasing company ; and any sale made or arrangement entered into by the liquidators in pursuance of this section shall be bind- ing on the members of the company being wound up ; subject to this proviso, that if any member of the company being wound up who has not voted in favour of the special resolutioa passed by the company 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 ofSce 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 following things as the liquidators 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 (j3), such purchase-money to be paid before the company is dissolved, 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 concurrently 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 (y). (o) s. 51. subsequent order, Oallao Bh Co , 42 Ch. (j8) s. 162. Div. 169. (y) i.e. by the order so to wind up or a 390 THE COMPANIES ACT, 1862. Sect. 161. Sales for shares under com- pulsory or supervision order. Compulsory winding-up. Arrangement]! binds creditors. This section relates only to a purely voluntary winding-up, but where the matter is before the Court under either a supervision order (q) or a compulsory order a sale of the property of the company can be made under sect. 95, and all things necessary, &c., may be done under the last words of sect. 95, and to such a sale the principles embodied in the 161st section are applicable. For it cannot be intended that when the matter is before the Court, the Court shall have less power than the liquidators have in a volun- tary winding-up. On the contrary, the Court has more power, as not being bound down by the majorities and formalities which are required in pro- ceedings out of Court (r). In the cases above referred to the winding-up was under supervision, and the decisions as decisions must no doubt be strictly taken to be directed to the facts of the particular cases. This was the view taken by Lord Eomilly (s), where his Lordship held that notwithstanding Se Agra and Masterman's Banle (t) he could not apply this section to a company in liqui- dation under a compulsory order. It is submitted, however, that the distinction is not well drawn. The principle of the observations in Re Agra and Masterman's Banh (<) and the lan- guage of the judgment in Cambrian Mining Co. (g) are founded upon there being power to sell for shares under a compulsory order as the argument to show the existence of such a power under a supervision order, and the tendency of recent decisions is to refuse to draw distinctions between one and another sort of winding-up without substantial reason. And further, the wording of the section is strictly applicable only to the case where the order of events is (1) voluntary winding-up and special resolution under the section either before or contemporaneously with or after the winding-up resolutions, (2) supervision or compulsory order, and not to the case where the supervision order precedes the special resolution under the section. But in the cases above referred to (u), not only did the supervision order precede the resolution of the company, but the resolution itself was an ordinary and not a special resolution, so that in fact the Court cannot in strictness have been applying the section itself, but must have been exercising a power which it held that it had elsewhere, and not under this section : and, in fact, Wood, V.C., said he had the power under sect. 95. Where the winding-up is not purely voluntary a special resolution is not necessary, and the dissentient shareholder's rights under sects. 161, 162, do not attach. But the Court will in its discretion give similar rights to the dissentient (x). A sale under this section is binding on the creditors of the selling com- pany : their remedy if they are injured is to come within a year for a super- vision order or a compulsory order (?/). And on the other hand, for their protection, the true construction of the concluding words of the section is that the sanction of the Court must be given in and not before the winding-up by or subject to the supervision of the Court. Under sect. 138 no doubt application may be made to the Court in a voluntary winding-up as to a sale under sect. 161, but the effect of the last words of the section is that upon such an application no order can be made which binds the creditors. The sanction to render the resolution valid (jj) Imperial Mercantile Credit Assooia- tion, 12 Eq. 504 ; Cambrian Mining Co., 48 T-. T. 114. ()■) Aijra and Masterman's Sank, 15 W. R. 5,54 ; 12 Eq. 509, n. (s) Zondon and Exchange Bank, 16 L. T. 340. (0 12 Eq. 509, n. (m) See notes (q) (r). (») Cambiian Mining Co., 48 L. T. 114. (y) City and County Investment Co., 13 Ch. Div. 475. THE COMPANIES ACT, 1862. 391 if the company be wound np by or under the supervision of the Court must Sect. 161, be given by the order so to wind up or a subsequent and not by an ante- cedent order (z). This may in some cases render a supervision order expedient in order to give jurisdiction for the sanction (a). In sanctioning a scheme of reconstruction by sale and transfer of the Wishes of assets to a new company under this section, the Court will have regard to "najonty. the wishes of a majority of shareholders and creditors as against a dissentient minority; and although a dissentient shareholder cannot be compelled to accept shares in the new company (v. infra), or the valuation put upon his interest by the official liquidator, yet if he will accept neither of these alternatives, the value of his interest must be settled by arbitration under sect. 162 (i). And the Court will not be deterred from sanctioning an arrangement which is approved by the majority, and which is clearly advantageous, by suggestions of possible liabilities which may be brought on the dissentients, unless it is satisfied that such liabilities will in fact ensue. Thus where the M. Company had transferred its business to the M. Cor- poration, the latter undertaking to satisfy all the company's obligations, and then, by reason of the failure of the corporation, the company had to pay a debt of £7000, against which the corporation ought to have indemnified it, and as regards the two companies the position of affairs was this : — the company was being wound up under supervision and all its debts were paid ; the shares of the corporation were fully paid up, its debts considerable, its assets substantially nil, except some ship-building property of speculative value, which could not be sold immediately except at a loss — the Court, under the circumstances, sanctioned an arrangement whereby the company was to take over the corporation's assets, pay the creditors of the corporation a composition, indemnify the corporation against all its debts, whether proved in the winding-up or not, and out of the assets recover what it could of the £7000, dissentient shareholders to be paid the amount of a valuation of their interests, and release their interests to the liquidator (c). The principle of the cases last mentioned is equally applicable to a dissentient minority of creditors. Thus a dissentient minority of debenture-holders has been compelled to accept a scheme of reconstruction, under which they, as dissentients, were to receive the then value of their debentures (d). An elaborate scheme of reconstruction at the instance of debenture-holders providing for the continuance of the liquidation for some purposes only, and the immediate election of new directors, issue of new shares, and creation of new debentures, was sanctioned in i?e Western of Canada Oil Co. (e). Where company L. sold its business to company M., and it was part of Unallotted the arrangement that M. should allot 10,000 new M. shares " to the directors " shares. of L. " for distribution among their shareholders," it was held in the sub- sequent windiQg-up of both companies that the L. liquidators were not entitled to a return of surplus M. assets proportionate to the number of the 10,000 shares which had never been applied for and allotted to L. shareholders (/). («) Oattao Sis Co., 42 Ch. Div. 169. (d) Tunis Bailways Co., 10 Ch. D. 270, (a) New Flagstaff Co., W. N. 1889, 123. n. ; affirmed W. N. 1874, 165 ; 30 L. T. (6) Imperial Mercantile Credit Associa- 512 ; 31 L. T. 264. tion, 12 Eq. 504 ; Irrigation Co. of France, (e) W. N. 1874, 148. Kp. Fox, 6 Ch. 176. (/) Mercantile and Exchange Bank, E. (c) Marine Investment Co., E. p. Poole's p. London Bank of Scotland, 12 Eq. 268. Executors, 8 Ch. 702. 392 THE COMPANIES ACT, 1862. Sect. 161, In drawing agreements tinder this section it is necessary so to word the clause which provides for the issue of shares in the new company in exchange for shares in the old company, that the number of shares in the new com- pany and the persons to be entitled to them shall be ascertained within some reasonable time. It is not uncommon to find these agreements so expressed that the new company is bound in respect of a certain fixed number of shares, while the persons who have the option to take them are left at large as to the time within which their option is to be exercised. Both the number of shares to be issued and the persons entitled to take them should be limited by providing that application for or acceptance of such shares shall be made by defined persons within a defined time. A provision for this purpose is valid {g). In Callao Bis Co. v. Eonaldson Qi) the Court was able so to construe the agreement as to extricate the new company from the difficulty. What is meant That which is contemplated by this section is a handing over of the assets by a scale. ^^ ^^ company which is in liquidation to another company, as a result of the purchase of those assets by the new company in consideration of shares in the new company. But the section does not contemplate the subjecting of the shareholders of the selling company, without their unanimous consent, to any fresh liability. And, therefore, an agreement by which the selling company is to take a certain fixed number of shares in the new company, and if its assets shall prove insufficient for the purpose is then to raise the necessary amount by a call on its shareholders, is not within the section («)■ The assets to be sold are the assets at the time of the liquidation, not assets to be got by subsequent calls («). Semble, such an arrangement would not be within the section if even only those who accepted shares in the new company were to be liable to the call {h). No arrangement under this section can be valid if it contain a condition precedent on the individual shareholder to pay something, not towards the capital of the new company in respect of which he is to receive profit, but by way of premium for shares Q). But an agreement under which the holder of fully paid shares is to take shares only partly paid is valid (m). Tart of assets It is no objection to an agreement that it stipulates that the purchasing and debts may company shall or may at their option take over only part of the assets and be sold. liabilities, leaving the rest of the debts to be paid by the liquidator (m). Purchase The agreement may provide that the shares to be allotted by the pur- shares may be chasing company shall be given to the shareholders direct, and not to the direcfto"' liquidator (m). shareholders. A transfer or amalgamation under this section cannot be impeached Invalid trans- nnder the winding-up jurisdiction ; its validity can only be decided in an fev how im- action (?i)- peached. The action may be brought by a dissentient shareholder on behalf of himself and all the other shareholders, although a large number of shareholders have assented to the scheme, and although it has been even actually carried into effect (o). (<;) Zuccmii v. Nai-iipai Co., 61 L. T. Eq. 91 ; and see 1 Ch. 339. 176; 1 Megone, 230; Postlctliwaite v. (m) City and County Investment Co., 13 Port Phillip Co., 43 Ch. D. 452. Ch. Div. 475 ; Postlethwaite v. Port Phillip (/i) W. N. 1887, 17G. Co., 43 Ch. D. 452. (t) Clinch V. Financial Corporation, (n) Imperial Bank of China, #c., 1 Ch. ."■i Kq. 450 ; 4 Cli. 117. 339, 3-t7 ; Financial Corporation, W. N. (/j)4Ch. 122. 1866, 162; International life Assurance (l) Imperial Bank of China, <('C., v. Society, 20 L. T. 433. Bank of Hindustan, China, and Japan, 6 (o) Clinohr. Financial Corporation, h'i.(\. THE COMPANIES ACT, 1862. 393 But in a case where it seems to have been conceded before Fry, J., that the Sect. 161. validity of the agreement could not be determined in the winding-up proceedings, and that if it was to be rescinded it must be in a substantive proceeding, the question whether the agreement was ultra vires or not was argued and determined on appeal; bat whether by consent does not appear (p). The company to which the sale is effected heed not be an English company Sale to foreign or a company formed under this Act (j). company. A sale under this section must be, not to an individual who is to be a Sale to an speculator in the matter, and who is to form and make such profit as he can individual. in forming a new company, but must be a sale direct from one company to the other (r). A contract which is ultra vires the directors of the selling company, but Sale ultra vires within the terms of this section, may be supported under this section. This the directors, is assumed in Glinch v. Financial Corporation (s), and : An unregistered company which has under its deed of settlement no power to sell or transfer its business to another company, but which has the power of dissolving itself, may effect a sale by registering under this Act, passing a resolution to mnd up voluntarily, and proceeding under this section (t). And the power given by the section " to receive in compensation . . . policies ... in such other company " shews that this mode of dealing is expressly applicable to mutual insurance societies (0- The Court will not set aside an unauthorized sale by the official liquidator of the property of the company, if made hond fide, where there has been constructive acquiescence or long delay on the part of the parties applying to set it aside (a). The majority of shareholders cannot in a sale under this section bind the Dissentient minority in respect of taking shares in the company to which the assets are shareholder to be transferred, and a dissentient shareholder does not, by failing to -gji^ij {„ (.^j^g " express his dissent within the seven days limited by the section, become shares, thereby compelled to take shares. But if he do not so express his dissent he cannot take advantage of the provision for purchase of his interest, but must submit to lose his shares altogether if he refuse to accept the new shares. A shareholder can either (1) assent, or (2) dissent, and within seven days require his interest to be purchased, or (3) dissent and abandon all his interest in the company (a;). And where a company, being in difficulties, passed special resolutions altering the articles so as to give power to carry out an arrangement similar to that provided for by this section, without giving dissentient shareholders the option to receive the value of their shares in cash, this was held invalid, and a dissentient shareholder was held entitled to have the value of his shares ascertained and paid as here provided (y). 450; 4 Ch. 117 ; Bird v. Bird's Sewage Co., to what is acquiescence see the note to 9 Ch. 358. Table A. (17)— (19). And as to estoppel, (ji) City and County Investment Co., 13 Campbell's Case, 9-Ch. 1. Ch. Dir. 475 ; Fostlethwaite v. Fort Phillip (x) Bank of Hindustan, ^c, Los' Case, Co., 43 Ch. D. 452. 13 W. R. 883; 12 L. T. 690; 34 L. J. iq) Irrigation Co. of France, E. p. Fox, (Ch.) 609; 11 Jur. (N.S.) 661; Higgs' 5 Ch. 176, 192. Case, 2 H. & M. 657 ; Martin's Case, 2 H. & (r) Bird y. Bird's Sewage Co., 9 Ch. 358. M. 669. (s) 5 Eq. 450 ; 4 Ch. 117. {y) Irrigation Co. of France, E. p. Fox, (0 Southall V. British Mutual Life 6 Ch. 176 ; and see Dougan's Case, 8 Ch. at Assurance Society, 11 Eq. 65 ; 6 Ch. 614. p. 545. («) JIafod Hotel Co., 18 L. T. 144. As 394 THE COMPANIES ACT, 1862. Sect. 161. Again, where the articles of association of a company provided tliat the directors might, " with the consent of an extraordinary general meeting, transfer and sell the business of the company, or purchase or amalgamate with the business of any other company of a like nature," it was held that, on an amalgamation, a dissentient shareholder could not be compelled to become a member in a new company with more extended objects, or (semble) in any new company at all (z). So where ^the articles of association of the company provided that the objects of the company should include the subscribing for or taking shares in, the entering into treaty, acting or uniting with, the buying up or absorbing any other company having the like objects, and the sale or transfer of the business and property of the company to any other company or individuals, a shareholder who had not assented in any way to the amalgamation with another company or accepted the new shares could not be compelled to be a shareholder in the amalgamated company (a). As to what will constitute, in the case of an amalgamation, an acceptance of shares in the new company, see Ohallis' Case (h) and supra, p. 71. See, further, as to amalgamation or transfer, in the case of life assurance companies, the Life Assurance Companies Act, 1870 (33 & 34 Vict. c. 61), SS. 14, 15, infra. Distribution of The proceeds of sale, whether they be shares or anything else, must be proceeds of distributed according to the rights of the members in the surplus assets of the company. The section gives no authority to a majority to control a minority to the prejudice of the latter in the distribution of the proceeds (c). The proceeds may be shares, whether fully paid or partly paid, and may be given direct to the shareholders in the old company without being first allotted to the liquidator (d). And inasmuch as the shareholders cannot be compelled to take the shares (e), an agreement by which the shareholder is bound within a reasonable time (/), or a limited time being a reasonable time (g), to elect whether he will take the shares or not, and in default the liquidator is to be at liberty to dispose of them and make the most of them on the shareholder's behalf, is valid. Whether an agreement would be valid by which shares not applied for by the shareholders are to be at the disposal of the new company, quaere (h). Liability of A shareholder, whose interest has been purchased by the liquidators, is dissentient not thereby relieved from liability to the creditors of the company. The a contribntorT ®®°*^°^ *^°^^ ^°* contemplate any alteration of liability as between the ■ dissentient shareholder and the creditors, but provides only for the purchase of the dissentient shareholder's interest, that is, of his right to a share in whatever surplus there may be after all debts are paid. And the fact that the purchase of such interest had been made by the liquidators taking a transfer under sect. 131 of the dissentient member's shares, a method of purchase which under the resolutions passed by the company they had no right to adopt, was no further release to him from liability (i). («) Umpire Assurance Corporation, E. p. Phillip Co., 43 Ch. D. 452. BagsUvi, 4 Eq. 341 ; and see Drivers (e) Higgs' Case, 2 H. & M. 657, 665. Executors' Case (Alb. Arb.), Eeil. 36; 15 (/) Zuccani v. Nacupai Gold Mining Co., Sol. J. 637. 61 L. T. 176; 1 Megone, 230. (a) London, Bombay, and Mediterranean (3) Postlethwaite v. Fort Phillip Co., 43 Bank, Drew's Case, 16 L.T.e57; 15W.K. Cli. D. 452; Weston \ . New Guston Co., 1057 ; 36 L. J. (Ch.) 785. 1 Megone, 225, 352. m 6 Cli. 266. (A) Nicholl V. EberUrdt Co., 61 L. T. (c) Criffith V. Paget, 5 Ch. D. 894 ; 6 Ch. 489 ; 1 Megone, 402. D. 511 ; ante, pp. 295, 323. (i) Imperial Land Co. of Marseilles, (d) City and County Investment Co., 13 Vining's Case, 6 Ch. 96. Ch. Div. 475, 482 ; Postlethwaite v. Port THE COMPANIES ACT, 1862. 395 But a transfer to the liquidators does, semhle, so far as regards any costs of Sect. 162. winding-up, entirely relieve the transferring shareholder from any future liability, not only with respect to the costs of the winding-up, but any costs of any liabilities incurred by reason of the transaction which is the subject matter of the dissent (k). Upon non-payment of the purchase-money in respect of his interest the Recovery of shareholder has a right of action upon the agreement or the award as in P"™lias«- ordinary cases (0. rareholder's If the company is going to part with all its assets at once, leaving nothing interest. but the shares in the new company to answer the claim of the dissentients, it may be put upon terms to retain the assets until satisfaction of the dissentients' claims (m). The notices convening the meeting, at which the resolution in favour of Notice of proceeding under this section is to be submitted, must give the shareholders ™«^t'°S- distinctly to understand that it is under this section that it is proposed to proceed (n). The dissentient shareholder's notice ought to be not merely that he Notice of dissents, but that he dissents and requires the liquidators to do one of the '^'^^^''f- two things mentioned in the section (o). A notice served after the passing but before the confirmation of the reso- lution, and not objected to until a month after the confirmation, has been held valid (p). 162. The price to be paid for the purchase of the interest of Mode of any dissentieut member may be determined by agreement, but piice."""'"^ 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 Consolidation Act, 8 & 9 Vict. 1845," with respect to the settlement of disputes by arbitra- tion (a), shall be incorporated with this Act ; and in the con- struction of such provisions 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 secretary, or any two of the directors, may be made under the hand of the liquidator, if only one, ot any two or more of the liquidators if more than one. (a) 8 & 9 Vict. c. 16, provides for: trators in case of railway companies (s. Appointment of arbitrator when questions 131) ; power of arbitrators to call for are to be determined by arbitration (s. books, &c. (s. 132) ; costs in their discre- 128); vacancy of arbitrator to be supplied tion (s. 133); submission to arbitration a (s. 129) ; appointment of umpire (s. 130) ; rule of Court (s. 184). appointment of umpire on neglect of arbi- This section does not compel resort to the Companies Clauses Consolidation Arbitration. Act where the articles of association provide the means of arbitration. It (4) Marine Investment Co., E. p. Poole's (n) Imperial Bank of China, ^c, v. Hxecutors, 8 Ch. 702, 710. Bank of Hindustan, 4-c., 6 Eq. 91 ; S. p. (i) De Eosaz v. Anglo-Italian Bank, i^ba;, 6 Ch. 176, 193 ; andseenotestos. 51. L. E. 4 Q. B. 462. (o) Union Bank of Kingston-wpon-Eull, (rn) Hester Sf Co., W. N. 1875, 179 ; 44 13 Ch. D. 808. L. J. (Ch.) 757. (p) Lmdm Bread Co., W. N. 1890, 3. 396 THE COMPANIES ACT, 1862. Sect. 163. Costs, Inspection. Commission to talre evidence. Certain attacli- mentSj seques- trations, and executions, to be Toid. merely enacts that resort may be had to that Act, as if it were incorporated in the articles of association, where a special Act or the articles of association do not contain the necessary provisions (?). The Companies Clauses Consolidation Act (8 & 9 Vict. c. 16) provides by s. 130, that the arbitrators are to appoint an umpire, and by s. 131 that on default of the arbitrators to appoint an umpire the Board of Trade may, if a railway company is one party to the arbitration, appoint an umpire ; but contains no similar provision in case of any company other than a railway company. In such a case an umpire might be appointed by a judge under the Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), s. 12 (?•). Where no direct sum has been tendered by the official liquidator as the price of the dissentient shareholder's interest, the costs of the arbitration will not be at the risk of the shareholder, but will remain in the discretion of the Court (s). A dissentient who proceeds to arbitration is not entitled to inspection of the company's books to see whether he will go on with his arbitration or not (i). In the arbitration the Court has power upon application made under s. 138 to order, under Order XXXVII. Eule 5, a commission to issue for the examination of witnesses abroad (m). 163. Where any company is being wound up by the Court or subject to the supervision of the Court, any attachment, sequestra- tion, distress, or execution put in force (a) against the estate or effects of the company after the commencement of the winding-up shall be void to all intents (|3). (a) i.e. by the entry of the sheriif, Xon- div. 40. (/) Siiinskill V. Eihi'wds,^! Ch. D. 100. ((/■) Kew Sonibrero Co. v. Erlanger, 5 Ch. Div. 73 ; 3 App. Cas. 1218 ; Sagnall v. Carlton, 6 Ch. D. 371, 389. (A) 24 Ch. Div. 439, 453 ; and see 44 Ch. D. 694. (0 24 Ch. Div. 454, 455, 457. (/i) Str!n,jer's Case, 4 Ch. 475. THE COMPANIES ACT, 1862. 405 fere with its payment. But where no profit and loss account had teen made Sect. 165. out, and no allowance made for the risks to which the company was liable, a bonus declared under such circumstances was held to have been declared under a delusive and fraudulent balance-sheet within the meaning of Stringer's Case (I), and an order was made upon a director to repay the bonus paid to him (m). A bonus declared and credited to a director against payments due from him on calls is money paid to or retained by him within the section (n). If directors pay dividends out of capital they are responsible not only for that which they have themselves received, but for the whole amount so mis- applied (o). The order will be expressed to be without prejudice to any right they may have to recover from each shareholder the amount he has received (o), and such orders as these have, in fact, always been so ex- pressed (_p), but there is no instance of an application having been made to recover over from the shareholder, and it is not easy to see how such an application could be sustained. No one can recover money paid voluntarily under a mistake of law or money paid on an illegal contract (q). The authorities on payment of dividends out of capital are more fully discussed under Table A., art. (56). It is a familiar rule of equity that " commission received by an agent or Promotion trustee of a purchaser from a vendor without the knowledge of his principal money, is in a Court of Equity a bribe ; it is a profit which the principal has a right to extract from the agent whenever it comes to his knowledge " (r). That a director acting on behalf of the company in carrying out a contract for sale to the company, stands in a fiduciary relation towards the company on whose behalf he acts is a proposition which no one would seek to contra- vene (s), and (subject to the diflculty of defining what " promoter " means and includes) it is conceived (see Companies Act, 1867, s. 38) that there is no doubt that a promoter stands in a fiduciary relation towards the company which he creates. It follows therefore that director or promoter acquiring profit in the matter of a sale to the company in which he takes part is guilty of a misfeasance and can be made to refund. To bring the case within the summary jurisdiction of this section, it is OflBcer. necessary that the person summoned shall have been an officer of the company at the time when the wrongful act complained of was committed. But he need not have been an officer during the whole transaction. Thus where the agreement for sale was entered into before the company existed, and therefore before the misfeasant (who in that case was the secretary) had become an officer, and the transfer of the shares to him was made after he had ceased to be an officer, yet inasmuch as during the time he was an officer he had concealed and assisted to carry out the wrongful agreement, he was rendered liable under this section (f). Notwithstanding what was said by Bacon, V.C. (u), it is conceived that the Promoter. (J) 4 Ch. 475. (q) Per Cotton, L.J., Blackburn Soc. v. (m) Sance's Case, 6 Ch. 104. As to the Brooks, 29 Ch. Div. 910; of. JE. p. Sim- Uability of directors, see further. Turquand monds, 16 Q. B. Div. .S08 ; Sogers v. Ingham, V. Marshall, 6 Eq. 112 ; 4 Ch. 376. 3 Ch. Div. 351 ; Currie v. Goold, 2 Madd. 163. (n) Ranee's Case, 6 Ch. 104. (r) Phosphate Sewage Co. r. Hartmont, (o) National Funds-Co., 10 Ch. D. 118; 5 Ch. Div. 394, 457. Flitcroffs Case, 21 Ch. Div. 519 ; Oxford (s) See Hay's Case, 10 Ch. 593, 601. Building Soc, 35 Ch. D. 502 ; Leeds Estate (f) McKay's Case, 2 Ch. Div. 1. Co. 1-. Shepherd, 36 Ch. D. 787. (w) Great Wheal Polgooth, Be Turner. (p) See, e.g., Evans v. Coventry, 25 L. J. W. N. 1883, 114; 53 L. J. (Ch.) 42 ; 49 (Ch.) 489 ; 8 D. M. & G. 835. L. T. 20 ; 32 W. R. 107. 406 THE COMPANIES ACT, 1862. Sect. 165. promoter as such is not within the section, but can be reached under it only if he was an offlcer. DiBECTOKs. Arrangements under which promoters find directors and agree to provide them gratuitously with their qualification are unfortunately only too common. In cases of this sort the authorities seem clearly to bear out the two following propositions : — 1. If a maQ becomes a director at a time when a contract for sale to the company is not absolutely completed, so that it is his duty to act for the company in the matter of the purchase, he can be compelled to make good at any time the full possible value of any present which he has accepted from the vendor. It is immaterial that the contract to receive the bribe was made before the person to be bribed was an agent ; it is immaterial that the contract for sale and price were all fixed before the bribe was paid, or the agreement made to pay it. If the contract for sale be conditional, the case against the director is so much the stronger, for it might have been his duty to refuse to adopt it, and how is he to discharge this duty if he have accepted a bribe ? but if it be not conditional, or if being conditional it have been made absolute, there is little difference, for until the contract is adopted so as to bind the company (x), and further until the sale is complete («/), the director has still duties to perform, inasmuch as he might be bound to repudiate if he discovered fraud (z). Accordingly a director who assisted to carry out a contract which was conditional in form (a), a secretary who as trustee for the company entered into the preliminary agreement for purchase (h), a director who received from a promoter his qualification shares, and then took an active part in carrying out a conditional contract (c), a director appointed on the nomina- tion of H. on the understanding that 200 paid-up shares for his qualification were to be found for him by H., and the object of whose appointment was that he might carry out an agreement under which H. was to receive a large number of paid-up shares as consideration for placing new shares in the company {d), directors who, having a discretion as to payment of preliminary expenses, paid £3500 to a promoter for preliminary expenses, out of which sum the calls on their qualification shares were paid (e), a director who purchased from the vendor 500 shares, part of the fully paid vendor's shares, at 50 per cent, of their par value (x), a director who received from the pro- moter 200 fully paid shares (y), have been held liable ; and as regards the case last cited, notwithstanding that there was a contract binding as between the promoter and the company before the gift was suggested or agreed. The principles of the foregoing cases are equally applicable in a going company, although the liability must then be enforced by action (/). 2. And apart from any question of incomplete contract, and from any suggestion that the purchase-money has been fictitiously increased by amounts never intended really to remain in the vendor's pocket, it is quite suflScient to establish liability that it is shewn that the director has received in the matter of his agency a gift from the vendor. Thus, if a purely voluntary payment have been made by the vendor out of (x) 'Weston's Cnno, 10 Ch. Div. 579. (c) Pearson's Case, 4 Ch. D. 222 ; 5 Ch. (y) Eden v. Hidsdalc's Lamp Co., 23 Div. 336. Q. B. Div. 368. (rf) He Smtgne's Case, 5 Cli. Div. 306. («) Soe and consider Hay's Case, 10 Ch. (e) Bnglefield Colliery Co., 8 Ch. Div. 388. 593 ; McKay's Case, 2 Oh. Div. 1. (/) Nant-y-Glo Co. v. Grave, 12 Ch. D. (a) Hay's Case, 10 Ch. 593. 738 ; Eden v. Eidsdale's Lamp Co., 23 Q. B. (6) McKay's Case, 2 Ch. Div. 1. Div. 368. THE COMPANIES ACT, 1862. 407 a purchase price preyioiisly and independently determined (j) it must be Sect. 165 repaid. A director cannot retain a consideration given him by a person involved in the transactions of the company, given, in fact, by way of hire for his consenting to fill the ofBce of director (K). A director cannot bargain and sell to a promoter his services as an officer of the company (i), and quwre, ■whether if a sum of money were promised to A. if he could induce B. to become a director, and he went to B. suppressing the promise, the promise would not be one given for an immoral consideration so that A. could not recover (Jc). And if each of several directors has received something with the knowledge and approval of the others they are all jointly and severally liable for the whole (0- In Clarice and HelderCs Vase (m) the articles, after providing for the allot- ment to the vendor of paid-up shares in respect of the sale, continued : " and it shall be lawful for the vendor to give shares or pay any moneys either to the directors or any other person or persons for the purpose of promoting the company." This clause Malins, V.O., rejected as fraudulent, and held directors whose qualification shares had been provided by the vendor out of the purchase shares, liable for misfeasance. This decision does not neces- sarily conflict with Miller's Case (n) as the application there was to render liable as a contributory and not for misfeasance. If directors, having a discretionary power of paying preliminary expenses, disqualify themselves for duly exercising their discretion by an agreement with the promoter that he shall qualify them free of expense, they may be rendered jointly and severally liable for sums which they have voted by way of preliminary expenses without proper investigation, and that indepen- dently of the fact that the moneys so voted were in fact applied in paying their qualification shares (o). So in an earlier case where the promoter entered into a secret agreement with four directors, who signed the memorandum of association, to give each of them ten shares, or the money to pay for them, and the directors, being empowered under the articles to pay the promoter certain moneys in respect of the promotion of the company, drew a cheque for £400, which the promoter returned to them, to pay for the promised shares, they were held jointly and severally liable to repay the money {p). So where directors had received from the promoter moneys in consideration of their becoming directors, the payment being made out of the moneys of the company ; and had also paid themselves fees, after winding-up petition presented, and after notice served on them not to part with the moneys of the company, they were by summary order under this section made to repay both of these (j). Where each of five directors with the knowledge and approval of each other received from the promoter twenty fully paid shares (being a director's qualification) which the promoter had received under the (^) See Hay's Case, 10 Ch. 593, 603 ; had received ? McKay's Case, 2 Ch. Div. 1, 5 ; Carriage (m) 37 L. T. 222. Co-op. Ass., 27 Ch. D. 322. (») 3 Ch. D. 661 ; 5 Ch. Div. 70. (A) Ormerod's Case, 37 L. T. 244 ; 25 (o) Englefield Colliery Co., 8 Ch. Div. 388. W. E. 765. (^) London and Provincial Starch Co., (j) See Pearson's Case, 4 Ch. D. 222, 225. 20 L. iT. 390 ; and see Orgilfs Case, 21 (k) See JEnglefield Colliery Co., 8 Ch. L. T. 221 (doubted in Hay's Case, 10 Ch. Div. 388, 398. 593, 600) ; cf. Madrid Bank, E. p. Wii- (J) Carriage Co-op. Ass., 27 Ch. D. 322. liams, 2 Eq. 216 ; Madrid Bank v. Felly, Why was each director in Oxford Building 7 Eq. 442 ; Preston's Claim, 19 L. T. 138. Soc, 35 Ch. D. 502, charged only as re- (?) Brighton Brewery Co., Hunt's Case, spects remuneration with that which he 37 L. J. (Ch.) 278 ; 16 W. K. 472. 408 THE COMPANIES ACT, 1862. Sect. 165. Knowledge and acqui- escence. Non-feasance. Loss by allot- ments to infants. Bona fide payment. PeOMOTE£!S. purchase agreement from the company, all were jointly and severally liable for the nominal amount of one hundred shares (r). Where the directors passed a resolution to pay a promoter £3000 for services upon an unwritten understanding that he should expend £400 in advertising, and advance the residue to the company on debentures, and he did so, and divided the debentures between himself and certain of the directors; the directors were jointly and severally liable to repay the £2600 (s). But where the shareholders in a cost-book mining company sold the mine to a limited company at a price which was held to be about four times its value, and payment was made by the allotment amongst the vendors of the whole share capital of the limited Company as to some part as fully paid and as to the rest as partly paid, each shareholder in the cost-book company taking his proper proportionate amount in the limited company, there was no liability to the company, for each shareholder's holding simply represented the same proportion of the mine as before {t). If directors receive a bonus with the knowledge and assent of every share- holder, and at a time whgn no one contemplates that any one else will become a member, they are entitled to retain it («). The section applies to misfeasance, not to non-feasance (ck). On the forma- tion of a company in 1872-1873, £10,000 promotion money was paid, and B. was informed of the fact at the time. In December, 1875, he became a director. In 1877 the company went into liquidation. An application by the liquidator to render him liable for misfeasance for not having communi- cated to the shareholders what he knew was dismissed (t/). A director induced three of his children who were infants to apply for shares. Shares were allotted to them, and he gave them money to make the payments on allotment. In the winding-up, the children being still infants and therefore not liable for calls, the father was under this section held liable to pay the calls, as a loss occasioned to the company by his breach of duty. All the shares were allotted, and the argument that there was no sufficient proof that the company had sustained a loss was therefore rejected (z). A hond fide payment made to a director as part of an arrangement which the company considers for its benefit may be upheld, even if made at a time when the company is in diflaculties (a). If a promoter from whom it is sought to enforce repayment of promotion money is, or has been at the time of the misfeasance, an officer of the company within this section, the summary jurisdiction may be employed against him. The important recent cases upon the liability of promoters having arisen mainly under Companies Act, 1857, s. 38, are collected in the note to that section. The following upon the right of promoters to prove in respect of services rendered, may be added here. " If the promoter of a company procures a company to be formed by im- proper and fraudulent means, and for the purpose of securing a profit to himself, which if the company was successful it would be unjust and inequitable to allow him to retain, and the company proves abortive, and is ()•) Carriacic Co-op. Ass., 27 Ch. D. 322. (s) Anglo-French Soc., li. p. Pelhi, 21 Ch. Div. 492. (<) Arriln-ose Lahe Co., E. p. Taylor, 14 Ch. Div. 390. (t() Sritish Seamless Paper Box Co., 17 Ch. Uiv. 467. (x) Wedgv:ood Coal Co., W. N., 1882, 164. (y) Forest of Dean Coal Co., 10 Ch. D. 450. (z) Crenver Co., E. p. Wilson, 8 Ch. 45. (a) Adamsmi's Case, 18 Eq. 670, cited supra, p. 399. THE COMPANIES ACT, 1862. 409 ordered to be wound up without doicg any business, the promoter cannot Sect. 165. be allowed to prove against the company in the winding-up, either in respect of his services in forming the company, or in respect of his services as an ofBcer of the company, after the company was registered " (b). The ground of this decision would seem to be that the fraud lies" at the very root of the formation of the company, that but for the fraud there never would have been a company at all, and that the promoters cannot claim against the thing created by their own fraud for services which have conferred no benefit. The decision does not go so far as to hold that if the company had gone on, and had the benefit of the services, it could have escaped paying for them (c). If the company takes the benefit of the services, then it may become liable, not because it becomes bound by a contract entered into before it came into existence, for that is legally impossible, but because it becomes bound in equity by a new contract or a newly created equitable liability (cQ. But it is by no means universally true that the company becomes liable to pay for that of which it has had the benefit (e). Where a director or promoter has accepted improperly a present of paid- Contributory up shares, there is sometimes a diflSculty in ascertaining whether the right ™ debtor, application is to fix him as a contributory, treating his shares as unpaid, or to seek payment from him under this section of a sum of money, treating him as a debtor to the company for the full nominal amount of the shares, or some other sum, as measuring the damage which the company has sustained by his misfeasance. If there has been a contract between the company and the misfeasant to take the shares, and the payment on them is shewn to have been made by a fictitious proceeding under which the company has really never received the amount payable on the shares at all, the misfeasant may be rendered liable as a contributory (/), and where (there being no contract with a third person under which the director was to acquire from the third person shares which he was to transfer to the director as paid) the directors made each other presents of shares which they intended to take as paid, but which were not paid in fact (g), it may have been rightly decided {h), that the shares could be treated as unpaid, although the intention was to take paid-up shares. But you cannot alter the contract under which the misfeasant acquires the shares, and unless there is a contract with the company to take shares (which by necessary implication involves a contract to pay for them) you cannot make a man liable as a contributory (i). Where, therefore, the misfeasance consisted in accepting an allotment of shares forming part of shares to which the vendor was under a duly (i) Hereford Waggon Co., 2 Ch. Div. (i) Carting's Case, 1 Ch. Div. 115; 621, 626. reversing 20 Eq. 580 ; De Suvigne's Case, (c) Cf. Bagnall v. Carlton, 6 Ch. Div. 5 Ch. Div. 306; Anderson's Case, 7 Ch. 371 ; Emma Mining Co. v. Grant, 11 Ch. Div. 75, 95. It is easy to distinguish cases D. 918. of tliis sort from cases under Comp. Act, (d) Empress Engineering Co., 16 Ch. 1867, s. 25 {e.g. Pagin's Case, 6 Ch. D. Div. 125 ; Howard v. Patent Ivory Co., 38 681), where a person contracting to talce Ch. D. 156. shares which he intends shall be paid up, (e) Botherham Alum Co., 25 Ch. Div. obtains an allotment of shares which the 103. statute renders unpaid. In such a case (/) Hay's Case, 10 Ch. 593 ; and see the man meant to be a shareholder, and Carriage Co-op. Ass., 27 Ch. D. 322, 332 ; meant to pay for his shares, but he meant Aspinall's Case, 36 L. T. 362. Contrast to pay in a manner not allowed by law. Eastwich's Case, 84 L. T. 84. Thepayment therefore falling to the ground, {g) E. p. Daniell, 1 De G. & J. 372. he remains a holder of shares unpaid. See (A) See Carling's Case, 1 Ch. Div. 115, Comp. Act, 1867, s. 25, note. 125, 127. 410 THE COMPANIES ACT, 1862. Sect. 165. Amount of Action by going com- pany. registered contract entitled as fully paid up, the matter was treated as if - the shares had been allotted to the vendor and then transferred, and an order of Jessel, M.E., rendering the allottees Kable as contributories (&) was discharged without prejudice to any application under this section to render the allottees liable for misfeasance (J). Assuming then that a director or promoter has obtained by misfeasance shares which, if he hold them at all he must hold as paid up, the company's remedy is to make him account for that which he has acquired by breach of trust. This it may do in any one of three ways : first, if the misfeasant still holds the shares, and they are valuable, the company can recover them from him ; secondly, if he has sold the shares at a profit, they can recover the profit ; thirdly, if the shares are valueless, or have been sold at a loss, the company can recover as damages the sum which they have lost by being deprived of the right of allotting the shares to persons who would have paid them up (to). In the third case the Court will estimate the damages at the largest amount of damage which could at any time have been incurred, that is, at the full value of the shares at the time the misfeasant acquired them, or at any subsequent time. If shares in the company were taken by solvent persons it will be assumed against the misfeasant that these shares would have been so taken, and the damages will be the full nominal amount of the shares (n) ; or if the person attacked purchased them at less than their full nominal amount, then the difference between the fuU nominal amount and what he paid (o). And even where it was shewn that the misfeasant had in fact transferred some of the shares for a nominal consideration and had made no profit out of them, he was charged with the full nominal amount, for he had deprived the company of the power of allotting them to other persons who might have paid the full nominal amount {p). The principle is that if that which the agent has received is money he must hand over the money ; if something else, then the principal may insist on having it or, if he chooses, the value of it. The value is to be measured by the best price which the principal could have obtained if the agent had at once told him the facts, and the principal had then taken the property and subsequently sold it at the highest value reached. The value, therefore, is the highest value between the date of the wrongful act and the date when it came to the knowledge of the principal (g). A going company may of course enforce by action a remedy against a director who accepts a gift in the matter of his trust. And its remedy is the same as above described as enforceable under this section if the company is in liquidation. It is not enough for the director to give back the shares ; if they have fallen in value the company may enforce payment of damages to be calculated on the principles above stated. Thus where a director had accepted a gift of fifty shares of £100 each, and an action was brought by a going company, judgment was given for payment of £80 a share, being the price at which the shares were quoted soon after the allotment, although five years were allowed to elapse before the action was brought, and at that time the shares had fallen to £1 (r). (/i) 20 Eq. 580. (J) Carling's Case, 1 Ch. Div. 115. (m) See Carling's Case, 1 Ch. Div. 115, 126. (n) McKay's Case, 2 Ch. Div. 1; JOe Buvigne's Case, 5 Ch. Div. 306 ; Pearson's Case, 4 Ch. D. 222; 5 Ch. Div. 336; Ormerod's Case, 37 L. T. 244 ; 25 W. E. 765. (o) Weston's Case, 10 Ch. Div. 579. Ip) Metcalfe's Case, 13 Ch. Div. 169; cf. Nant-y-Glo Co. v. Grave, 12 Ch. D. 738. (q) Eden v. Ridsdale's Lamp Co., 23 Q. B. Div. 368. (r) Nant-y-Glo Co. v. Grave, 12 Ch. P. 738. THE COMPANIES ACT, 1862. 411 " Where a trustee has a fund in his possession, and wastes it either by Sect. 165. neglect of duty or by doing an act not justified, and the cestui que trust comes to recoTer his money, no time will bar Ms suit, for it is a claim by the cestui L*mititions que trust against the trustee for money or property which was in the posses- sion of the trustee, and must be considered as in the possession of the trustee for the benefit of the cestui que trust until the trustee duly discharges himself. To such a suit there is no bar by statute " (s). But where the claim of the cestui que trust is that the trustee has received a bribe, or has received money under such circumstances that the receipt was a fraud on the cestui que trust, then the claim is only for an equitable debt, and the Statute of Limitations runs from the date, or rather a Court of Equity by analogy applies the statute as from the date at which the cestui que trust knows the facts (0- Therefore where directors paid dividends out of capital, they could not set up the Statute of Limitations (u) ; but where the charge was that a debtor to the company paid a director a sum of money to induce him to use his influence to persuade the company to accept a small sum in settlement of the debt, the statute ran from the date at which the other directors knew the facts (as). In the Mammoth CopperopoUs of Utah (y) the dates were : — dividend paid, 1872; winding-up, Nov. 1876; official liquidator appointed Dec. 1876; summons against directors for repayment of dividend, July 1879. Hall, V.O., dismissed the summons on the ground of stale demand: but qucere this decision. In the Alexandra Palace Co. (z) the dates were : — dividends paid Jan. 1874 to June 1875; winding-up, Oct. 1876; summons, Feb. 1880. Fry, J., made an order. Stringer's Case (a), which was referred to in these cases, is really no authority at all on stale demand, for the Court decided that the dividend was not there paid out of capital. The debt incurred to a company by a promoter [and equally it is conceived Baukiuptoy by a director] who makes a secret profit out of the company is a debt ^?\ incurred by "fraud" and by "breach of trust" within Bankruptcy Act, '^^" 1869, s. 49 (Bankruptcy Act, 1883, s. 30), and if the party liable liquidate by arrangement he is not released from the debt by his discharge (b). And the same is true of a claim for misapplication of the company's funds (c). But default in payment of the amount is not " default by a trustee or Debtors' Act. person acting in a fiduciary capacity and ordered to pay by a Court of Equity any sum in his possession or under his control " within sect. 4 of the Debtors' Act, 1869, and the defaulter cannot, therefore, be committed for non-pay- ment (d). Secus, if he had received money belonging to the company and had misappropriated it (d). A claim by a director against the company cannot be set off against Set-off. liability of the director enforced under this section (e). A claim by the company against a director for misfeasance is assignable (/), Misfeasance and is within sect. 95 a " thing in action " of the company which the "^^l"^ '•~ , , assignment_ of ; (s) Cotton, L.J., Metropolitan Bank v. (a) 4 Ch. 475. Heiron, 5 Ex. Div. 319, 325. See, however, (6) Emma Mining Co. r. Grant, 17 Ch. now the Trustee Act, 1888, 51 & 52 Vict. D. 122 ; S. C. 11 Ch. D. 918, 933. c. 59. " (c) Eamskill t. Edwards, 31 Ch. D. 100. (i) Metropolitan Bank v. Heiron, 5 Ex. (d) Metcalf^s Case, 13 Ch. D. 815. Dir. 319. («) Anglo-French Soc, E. p. Felly, 21 Ch. («) Flitcroft's Case, 21 Ch. Div. 519. Div. 492 ; Flitcroft's Case, 21 Ch. Div. 519. (x) Metropolitan Bank v. Heiron, 5 Ex. (/) New Westminster Brewery Co. v. Div. 319. Hannah, W. N. 1876, 215; 1877, 35. (y) 59 L. J. (Ch.) 11. Contrast Prosser v. Edmonds, 1 Y. & C. («) 21 Ch. D. 149. (Exc.) 481 ; Hill v. Boyle, 4 Eq. 260. 412 THE COMPANIES ACT, 1862. Sect. 166. is not against director as member. Penalty on falsification of books. Prosecution of delinquent directors in the case of winding-up by Court. liquidators may sell and assign {g), and if the misfeasant be himself the purchaser ho can prevent proceedings being taken {g). A claim for misfeasance against a director is not a dispute with him " in his capacity of a member" to be referred to arbitration within the Building Societies Act, 1884 Qi). 166. If any director, officer, or contributory of any company wound up under this Act destroys, mutilates, alters, or falsifies any books, papers, writings, or securities, or makes or is privy to the making of any false or fraudulent entry in any register, book of account, or other document belonging to the company, with intent to defraud or deceive any person, every person so offending shall be deemed to be guilty of a misdemeanour, and upon being convicted shall be liable to imprisonment for any term not exceeding two years, with or without hard labour (a). (a) Cf. 24 & 25 Vict. c. 96, s. 83. 167. Where any order is made for winding-up a company by the Court or subject to the supervision of the Court, if it appear in the course of 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), the Court may on the application (|3) 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 prosecu- tions for such offence, and may order the costs and expenses to be paid out of the assets of the company. and (a) 24 & 25 Vict. c. 96, ss. 81-84; «. note to s. 165. (;S) By petition, Gen. Order, Nov. 1862, Rule 51. Prosecution nf delinquent directors, &c., in case of voluntary winding-up. An application under this section, on the part of the official liquidator, for leave to conduct a prosecution, and that the costs might be paid out of the assets, was refused in the Eupion Fuel and Oas Co. (i). But in Mercan- tile Marine Insurance Co. {h), North, J., made an order, and Chitty, J., did so in Denham and Co. (I). 168, Where a company is being wound up altogether volun- tarily, 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 lawl'ul for the liquidators, with the previous sanction of the Court (j3), to prosecute such offender, and all expenses properly ((/) Fark Gciio Wagon Co., 17 Ch. Div. 234. (A) itiiiiifipal Society v. Sichards, 39 Ch. Div. 37'-'. (0 W. N. 1875, 10. (*) May, 1882. (0 W. N. 1884, 122 ; 53 L. J. (Ch.) 1113 ; 51 L. T. 570 ; 32 VV. R. 920. THE COMPANIES ACT, 1862. 413 incurred by them in such prosecution shall be payable out of the Sect. 169. assets of the company in priority to all other liabilities. (o) 24 & 25 Vict. v;. 96, ss. 81-84; and (|8) Obtained on petition, Gen. Order, V. note to s. 165. Kot. 1862, Rale 51. 169. If any person, upon any examination upon oath or Penalty of affirmation authorized under this Act, or in any affidavit, depo- P^^J^'J'' sition, 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. Power of Courts to make Mules. 170. In England the Lord Chancellor of Great Britain, with Power of Lord the advice and consent of the Master of the Bolls, and any one of Gi.eat Britain the Vice-Chancellors for the time heing, or with the advice and ^° ™^'^'' ^"^^^• con-sent of any two of the Vice-Chancellors, may, as often as cir- cumstances require, make such Bules concerning the mode of proceeding to he had for winding-up a company (a) in the Court of Chancery as may from time to time seem necessary, hut until such Bules 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 applicable and not inconsistent with this Act, apply to all proceedings for winding-up a company (j3). (a) Tliis was extended to malting Rules (/3) See Gen. Ord. Not. 1862, and Rule under the Comp. Act, 1867, by Comp. Act, 74 of that Order. 1867, s. 20. This section is repealed by 44 & 45 Vict. o. 59, having been superseded by the provisions as to Rules in the Judicature Acts. 171. In Scotland the Court of Session may make sach Eules Power of Court ,^ Tp.n. ,. -. , of Session in concerning the mode ot winding up (a) as may be necessary by Scotland to Act of Sederunt ; but, until such Eules 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 inconsistent 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 (a). (a) This is extended to malting Rules under the Comp. Act, 1867 ; v. Cotnp. Act, 1867, s. 20. 172. The Vice-Warden of the Stannaries may from time to Power to make time, with the consent provided for by section twenty-three of ^aj.j'^^gCourl" the Act of eighteenth of Victoria, chapter thirty-two, make Eules for carrying into effect the powers conferred by this Act upon 414 THE COMPAKIES ACT, 1862. Sect. 173. the Court of the Vice- Warden (a), but, subject to such Kules, the general practice of the said Court and of the Eegistrar's Office in the said Court, including the present practice of the said Court in winding-up companies, may be applied to all proceedings under this Act; the said Vice- Warden may likewise, with the same consent, make from time to time Eules for specifying the fees to be taken in his said Court in proceedings under this Act ; and any Eules 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 proceedings taken under this Act, including fees taken under "The Joint Stock Campanies Act, 1856," in the matter of winding-up companies, shall be applied exclusively towards payment of such additional officers, 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 application 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. (o) This is extended to making Eules under the Comp. Act, 1867 ; v. Comp. Act, 1867, s. 20. Power of Lord 173. In Ireland the Lord Chancellor of Ireland may, as respects Ireland to the winding-up of companies in Ireland (a), with the advice and make Eules. conscnt of the Master of the EoUs in Ireland, exercise the same power of making Eules as is by this Act hereinbefore given to the Lord Chancellor of Great Britain ; but until such Eules 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 incon- sistent with this Act, apply to all proceedings for windiug-up a company. (o) This is extended to making Eules under the Comp. Act, 1867 ; v. Comp. Act, 1867, s. 20. PAET V. Eegistration Office. Constitution of 174. The registration of companies under this Act shall be omce. conducted as follows : (that is to say,) THE COMPANIES ACT, 1862. 415 (1.) The Board of Trade may from time to time appoint such Sect. 174. registrars, assistant registrars, clerks, and servants as they may think necessary for the registration of com- panies under this Act, and remove them at pleasure : (2.) The Board of Trade may make such regulations as they 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 main- tained 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 registration of companies formed for working mines within the jurisdiction of the Court (a) : (4.) The Board of Trade may from time to time direct a seal or seals to be prepared for the authentication of any docu- ments required for or connected with the registration of companies : (5.) Every person may inspect the documents kept by the Eegistrar of Joint Stock Companies ; and there shall be paid for such inspection such fees as may be appointed by the Board of Trade, not exceeding one shilling for each inspection ; and any person may require a certifi- cate 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 incorporation, 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 registra- tion of joint stock companies shall, during the pleasure of the Board of Trade, hold the offices and receive the 416 THE COMPANIES ACT, 1862. Sect. 175. salaries hitherto held and received by them, but they shall in the execution of their duties conform to any regulations that may be issued by the Boai'd of Trade : (7.) There shall be paid to any registrar, assistant registrar, clerk, or servant that may hereafter be employed in the registration of joint stock companies such salary as the Board of Trade may, with the sanction of the Commis- sioners of the Treasury, direct : (8.) Whenever any act is herein directed to be done to or by the Registrar 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 authorize ; in Scotland to or by the existing Registrar of Joint Stock Companies in Scotland ; and in Ireland to or by the existing Assistant Registrar of Joint Stock Com- panies for Ireland, or by such person as the Board of Trade may for the time being authorize in Scotland or Ireland in the absence of the registrar ; but in the event of the Board of Trade altering the constitution of the existing registry oifice, 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. (o) See Stannaries Act, 1887, s. 31, as to duplicate registration of companies engaged in or formed for working mines in the Stannaries. PART YI. Application of Act to Companies registered under the , . „ Joint Stock Companies Acts. Definition ot Companie" 175. The expression "Joint Stock Companies Acts" as used in f9&20Vict ^^^^ ^°^ ^^^^^ "^^^'^ "'^^^^ '^°'^^^ ^^°^^ Companies Act, 1856," ,;. 47. '° ' " The Joint Stock Companies Act, 1856, 1857 " (a), " The Joint 20^&2i Vict. g^Qj,j^ Banking Companies Act, 1857," and "The Act to enable 20 & 21 Vict. Joint Stock Banking Companies to be formed on the principle of 21 &'22 Vict. Limited Liability," or any one or more of such Acts, as the case 7^^ N'ict. ™"'y ™q"i''6. l^^^t shall not include the Act passed in the eighth c. 110. year of the reign of her present Majesty, chapter one hundred and THE COMPANIES ACT, 1862. 417 ten, and intituled "An Act for the Registration, Incorporation, Sect. 176. and Regulation of Joint Stock Companies." (o) See 20 & 21 Vict. c. 14, s. 2. 176. Subject as hereinafter mentioned (a), this Act, with the Application of exception of Table A. in the first schedule, shall apply to com- ponies formed panies formed and registered under the Joint Stoclc Companies ""'^^'' J°'°' J . _. n , • 1 • , ,. Stock corn- Acts (p), or any ot them, in the same manner in the case oi a panics Acts. 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 sliall 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 (y) 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 ualimited company 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 memorandum of association. (a) As to what these words refer to, see (/3) s. 175. London India Btibber Co., 1 Ch. 329. (7) ss. 50, 196 (3), (4). A company formed and registered under the Joint Stock Companies Acts (supra, sect. 175), is, by virtue of this section, a company under this Act. Such a company is, therefore, under no necessity of registering tinder the power given in the 180th section, and is not included under the term "unregistered company" in sect. 199 (m). As to companies registered, but not formed, under the Joint Stock Companies Acts, see next section. 177. This Act shall apply to companies registered but not Application of formed under the said Joint Stock Companies Acts (a) or anv of ^''^}'' '=°™' ■*■ \ y J panies regis- them, in the same manner as it is hereinafter declared (j3) to tered under apply to companies registered but not formed under this Act, compa^nVes'^ 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 (m) London India Subber Co., 1 Ch. 329 ; and see notes to ss. 129, 199. 2e 418 THE COMPANIES ACT, 1862. Sect. 178, registered under the said Joint Stock Companies Acts or any of them. (a) s. 175. (3) s. 196. By sect. 196 " all the provisions of this Act shall apply,'' &c. It is con- ceived, therefore, that the note to sect. 176, supra, is equally true in the case of a company registered, but not formed, under the Joint Stock Com- panies Acts. Mode of trans- 178. Any Company registered under the said Joint Stock Com- fenmg shares, p^uigg ^g^g qj. ^^j ^f them may cause its shares to be transferred in manner hitherto in use, or in such other manner as the company may direct. PART VII. Companies authorized to eegistee undee this Act. Regulations as 179. The following regulations shall be observed with respect to of e'^ktlng ""^ tJiG registration of companies under this part of this Act ; (that is companies. tO Say,) (1.) No company having the liability of its members limited by Act of Parliament or letters patent, and not being a joint stock company as hereinafter defined (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 Parliament 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 herein- after defined (a) 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 pursuance 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 where 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 members limited by Act of Parliament or letters patent is about to register as a limited company the majority required to assent as aforesaid shall consist of not less than THE COMPANIES ACT, 1862. 419 tliree-fourtlis of the members present, personally or by Sect. 180. proxy, at such last-mentioned general meeting : (6.) "Where a company is about to register as a company 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 within one year afterwards, for payment 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 contributories amongst themselves, such amount as may be required, not exceeding a specified amount (j3) : 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. (o) s. 181. (i8) s. 9. If a poll is not demanded the voting will be by show of hands, not counting shares (n). 180. With the above exceptions, and subject to the foregoing Companies regulations (a), every company existing (|3) at the time of the ^^P^*"^^ °^^^_ commencement of this Act, including any company registered tered. under the said Joint Stock Companies Acts (y) 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 regis- tration shall be invalid by reason that it has taken place with a view to the company being wound up. (a) See also ss. 182-188. Eq. 321 ; see s. 153, n. (j3) Registration subsequent to the pre- (y) These companies may register under sentation of a winding-up petition must be this Act, but the Act applies to them, a mere nullity: Hercules Insurance Co., 11 although not so registered, s. 176. By registration under the Act a company may acquire powers which it had not before. This section expressly provides that registration shall not be invalid by reason that it has taken place with a view to winding-up, and (n) Sorbury Bridge Co., 11 Ch. Div. 109. 2e2 420 THE COMPANIES ACT, 1862. Sect. 181. Definition of joint stock company. thus a company, -wliich has no power of selling and transferring its business, may by registration followed by voluntary liquidation acquire the power of sale given by sect. 161 (o). In Dresser v. Gray (p), the A. Company, unlimited and unincorporated, formed under 7 Geo. IV. c. 46, was first registered in 1874 as an unlimited company under the Act of 1862, and subsequently in 1883 as a limited company under the Act of 1879. The shares in the unlimited company were £100 shares. When the company was registered as limited the pro- visions of the Acts of 1867 and 1879 were utilized, and by subdivision and increase of nominal amount each £100 share was converted into two shares of £60. A testator who died in 1887 by his will made in 1882 bequeathed " 50 shares in the A. Company." In 1882 he held 70 shares of £100 ; at his death he held 140 shares of £60, being the shares converted as above described. Kay, J., held that the legacy was not specific but general : that it was in effect a gift of so much money as would buy 50 shares in the A. Company, an unlimited company : that no one could tell what this would be, and that the gift failed. 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 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 registered with limited liability under this Act shall be deemed to be a company limited by shares. 182. No hanhing company claiming to issue notes in the United Kingdom shall he entitled to limited liability in respect of such issue, hut shall continue subject to unlimited liability in respect thereof, and, if necessary, the assets shall he marshalled for the benefit of the general creditors, and tlie members shall be liable for the whole amount of the issue, in addition to the sum for which they would he liable as members of a limited company (a). (a) See further, s. 188. By Companies Act, 1879, s. 6 (see infra), this section is repealed and a substituted section enacted. Requisitions 183. Previously to the registration in pursuance of this part of by Sp'nt's™ *^i^ ^*^* °^ any joint stock company (a) there shall be delivered to the registrar the following documents ; (that is to say,) (1.) A list shewing 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, (o) Southall V. British Mutual Society, 6 Ch. 014. (p) 36 Ch. D. 205. Proviso as to banlting company. THE COMPANIES ACT, 1862. 421 were members of such company, with the addition of the Sect. 184. 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 (/3), contract of copartnery, cost book regulations, or other instrument constituting or regulating the company : (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 : (y) 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) s. 181. registered under 7 & 8 Vict. c. 110. [ (;8) s. 209 as to insurance companies (7) s. 190. 184. Previously to tlie registration in pursuance of this part of Requisitions this Act of any company not being a joint stock company (a) there by exfstfng''''° shall be delivered to the registrar (|3) a list shewing the names, company not addresses, and occupations of the directors or other managers (if stock company. any) of the company, also a copy of any Act of Parliament, letters patent, deed of settlement, contract of copartnery, cost book regu- lations, or other instrument constituting or regulating the company, with the addition, in the case of a company intended to be regis- tered as a company limited by guarantee, of the resolution de- claring the amount of guarantee. (o) s. 181. ($) Comp. Act, 1879, s. 9. 185. Where a joint stock company (a) authorized to register Power for under this Act has had the whole or any portion of its capital pan''tf re'"g. converted into stock, such company shall, as to the capital so *•" amount of converted, instead of delivering to the registrar a statement of of shares, shares, deliver to the registrar a statement of the amount of stock belonging to the company, and the names of the persons who 422 THE COMPANIES ACT, 1862. Sect. 186. were holders of such stock, on some day to be named in the state- ment, not more than six clear days before the day of registration. (o) s. 181. Authentication 186. The list of members and directors and any other par- of extstS™'' ticulars relating to the company hereby required to be delivered companies. ^Q 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 William the Fourth, chapter sixty-two. Registrar may 187. The registrar may require such evidence as he thinks dence'^as^to' uccessary for the purpose of satisfying himself whether an nature of existing Company is or not a joint stock company as hereinbefore defined (a). (o) s. 181. On registration 188. Every banking company (a) existing at the date of the ^ompany°with P^ssiug of this Act which registers itself as a limited company limited lia- shall at loast thirty days previous to obtaining a certificate of to be given to registration with limited liability, give notice that it is intended ^justomers, g^ ^o 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 (/3). (o) See further, Comp. Act, 1879, s. 6. O) ss. 18, 192. Exemption of 189. No fecs shall be charged in respect of the registration in ranreTfrom' pursuancc of this part of this Act of any company in cases where payment of sucli 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. Power to com- 190. Any company authorized by this part of this Act to ZZ^" °'"*"°° register with limited liability shall, for the purpose of obtaining THE COMPANIES ACT, 1862. 423 registration with limited liability, change its name by adding Sect. 191. thereto the word " limited " (a). (a) s. 133. The word " limited " is, it is conceived, added to the company's name by virtue of this section, and the course (not infrequently taken) of including in the resolution to register a resolution to add " limited " to the name is, it is conceived, erroneous. The company has no power to alter its name except under a special resolution and the approval of the Board of Trade (sect. 13). But the resolution under sect. 179 is not a special resolution, and even if a special resolution were passed, it is of course idle to suppose that the approval of the Board of Trade can be required in a case where the statute requires the alteration to be made. 191. Upon compliance with the requisitions in this part of this Certificate of Act contained with respect to registration, and on payment of ^^fg^ ™ J,°^° snch fees, if any, as are payable under the Tables marked B. and panies. C. in the first schedule hereto, the registrar shall certify under his hand that the company so applying for registration is in- corporated 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 shall have perpetual succession and a common seal, with power to hold lands (a) ; and any banking company in Scotland so incorporated shall be deemed and taken to be a bank incorporated, constituted, or established by or under Act of Parliament. (a) 5. 18. 192. A certificate of incorporation given at any time to any Certificate to company registered in pursuance of this part of this Act shall be ^o^^jf^^"^*^*^ "^ conclusive evidence that all the requisitions herein contained in with Act. respect of registration under this Act have been complied with (a), and that the company is authorized to be registered under this Act as a limited or unlimited company, as the case may be (/3), 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 (7). (a) But see s. 188, as to a banking com- (/8) See note to s. 18. pany. (y) Of. s. 18. Where a railway company had registered under the Act, the certificate was by virtue of this section conclusive that it was authorized so to register ((?). 193. All such property, real and personal, including all interests Transfer of and rights in, to, and out of property, real and personal, and company.*" including obligations and things in action, 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 (2) Ennis and West Glare Railway Co., 3 L. E. Irish, 9+. 424 THE COMPANIES ACT, 1862. Sect. 194. incorporated under this Act for all the estate and interest of the company therein. Registration 194. The registration in pursuance of this part of this Act of not't'otffect'^''any company shall not affect or prejudice the liability of such obligations company to have enforced against it, or its right to enforce, any vlousiy to'"^'^ debt or obligation incurred, or any contract entered into, by, to, registration, ^^.j^-j^^ ^j. ^^ behalf of such Company previously to such registration. Liability of contributory. Continuation of existing actions and suits. This section has no application to the case of a pure contributory. The right of contribution is founded on the contract of partnership; and if a previously unlimited company has been registered with limited liability, the contract is one which excludes all liability to contribute beyond the amount of the shares (r). The result of this has been said to be that if an unlimited company is registered with limited liability and is subsequently wound up, persons who were members of the unlimited company cannot, even in respect of debts contracted before the registration with limited liability, be called upon to contribute beyond the limit of their shares (r). Under the Act of 1856, this was not so, for the 116th section of that Act saved the rights of creditors as against the company and the members of the company after registration (s). This Act contains no similar provision : but qucere, is not sect. 196 (5) sufficient to preserve unlimited liability for debts contracted before registration ? And in any case qucere whether the rights of creditors as distinguished from the right of contribution as between the members inter se could not be enforced in some other proceeding than the winding-up. Where under the policies of an unregistered assurance society the assets of the company alone were liable, and the society being insolvent was registered as an unlimited company and immediately afterwards wound up, it was held that there was no liability beyond the amount of the shares for any breach of contract in ceasing to carry on business ; for the policy-holders were bound by their contract, and could not make the shareholders liable beyond the expressed contract of limited liability (t). 195. All such actions, suits, and other legal proceedings as may at the time of the registration of any company registered in pursuance of this part 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 obtained in any action, suit, or pro- ceeding so commenced as aforesaid ; but in the event of the property and effects of the compnny being insufficient to satisfy ()•) Slieffield and Hallatnshirc, ffc, Society, Fountain's Case, i D. J. & S. 699 ; 6 N. K. 75; 11 Juv. (N.S.)553; l:!W.R. 667; 34 L. J. (Ch.)593; 12 L. T. 335. (s) Liverpool Tradesmen's Loan Co., K. p. Stevenson, 32 L. J. (Ch.) 96 ; 11 W. It. 131 ; 7 L. T. 453; 1 N. R. 145; Garneit Mining Co. v. Sutton, 3 Best & Sm. 321 ; .14 I. J. (Q.B.) 118; 13 W. R. 412; JEx- hall ^fining Co., Bleckley's Case, 16 L. T. 478. (() Lethhridge v. Adams, 13 Eq. 547. THE COMPANIES ACT, 1862. 425 such judgment, decree, or order, an order may be obtained for Sect. 196. winding-up the company. A shareholder in an unregistered company which, after he has parted with Liability of all his shares, is registered, is not a contributory of the registered company, contributory. for he never was a member of it, but he remains liable for all debts incurred by the unregistered company while he was a shareholder in it («). 196. When a company is registered under this Act in pursu- Effect of ance of this part thereof, all provisions contained in any Act of ^^^jer Act." Parliament, deed of settlement, contract of copartnery, cost book regulations, letters patent, or other instrument, constituting or regulating the conipany, including in the case of a company registered as a company limited 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 associa- tion ; and all the provisions of this Act (a) shall apply to such company and the members, contributories, 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 (j3), 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 (y) shall not apply to any joint stock company whose shares are not numbered (S) : (3.) That no company shall have power to alter any provision contained in any Act of Parliament relating to the company (S) : (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 (8) : (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 regis- tration, who is liable, at law or in equity, to pay or con- tribute 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 adjust- ment of the rights of the members amongst themselves in respect of any such debt or liability ; or to pay or con- («) Zanyon v. Smith, 3 B. & Sm. 938 ; 2 N. R. 118 ; Harvey v. dough, 2 N. R. 204. 426 THE COMPANIES ACT, 1862. Sect. 196. tribute 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 contri- butory 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 liability as aforesaid (t) ; and in the event of the death, bankruptcy, or insolvency of any such contributory as last aforesaid, or marriage of any such contributory, being a female, the provisions hereinbefore contained (?) with respect to the representa- tives, heirs, and devisees of deceased contributories, and with reference to the assignees of bankrupt or insolvent contributories, and to the husbands of married contribu- tories, shall apply : (6.) That nothing herein contained shall authorize any com- pany to alter any such provisions contained in any deed of settlement, contract of copartnery, cost book regula- tions, letters patent, or other instrument constituting or regulating the company, as would, if such company had originally been formed under this Act, have been con- tained in the memorandum of association (rj), and are not authorized to be altered by this Act : But nothing herein contained 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 Parliament, deed of settle- ment, contract of copartnery, letters patent, or other instrument constituting or regulating the company. (a) A company registering compulsorily (7) s. 22. under s. 209, is also subject to all the pro- (5) Comp. Act, 1867, o. 47. visions of the Act, Ramsay's Case, 3 Ch. (t) ss. 38, 200. Div. 388. (0 ss. 76, 77, 78, 105, 106. (/3) s. 51. (,,) ss. 8, 9, 10. The Comp. (Mem. of Association) Act, 1890, now gives power to substitute a memorandum and articles of association for a deed of settlement. Contributories. It will be observed that, as respects debts contracted prior to registra- Past members, tion, sub-section (5) contains nothing similar to the provision of sect. 38 exonerating past members who have ceased to be members for more than a year from liability in respect of debts contracted before they left the company. (6 ) The proviso at the end of this clause must be read as continuing to the company " any lawful power of altering, &o.," i.e., any power which can be exercised consistently with justice and with the objects of the Act. And therefore (before the Comp. Act, 1867) a company, who have under their deed of settlement a power to reduce their capital, have, by reason of sects. 8 and 12, lost such power by registering under the Act (x). (x) Droitwich Salt Co. v. Curzon, L. R. 3 Ex. 35 ; and see s. 12. THE COMPA.NIBS ACT, 1862. 427 1 97. The Court may, at any time after the presentation of a Sect. 197. petition for winding-up a company registered in pursuance of this power of Court part of this Act, and before making an order for winding-up the f°/ther'" company, upon the application by motion of any creditor of the proceedings. company, restrain further proceedings in any action, suit, or legal proceeding against any contributory of the company, as well as against the company as hereinbefore provided, upon such terms as the Court thinks fit (a). (a) ss. 85, 195 ; ei cf. s. 201. See the notes to sect. 85, supra, p. 233, where will be found some observa- tions on the frame of this section which provides only for application by a creditor, and not for application by company or contributory. 198. Where an order has been made for winding-up a company Order for registered in pursuance of this part of the Act, in addition to ™p°n^y"'' the provisions hereinbefore contained (a), it is hereby further provided that no suit, action, or other legal proceeding 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) ss. 89, 195 ; et cf. s. 202. See the notes to sect. 87, supra, p. 254. PAET VIII. Application of Act to Uneegisteeed Companies. 199. Subject as hereinafter mentioned, any partnership, associa- Winding-up of .. i'l •• iTiAi unregistered tion, or company, except railway companies incorporated by Act companies. of Parliament (a), consisting of more than seven members (j3), and not registered under this Act (y), and hereinafter included under the term unregistered company, may be wound up under this Act, and all the provisions of this Act with respect to winding-up shall apply to such company, with the following exceptions and additions : — (1.) An unregistered company shall, for the purpose of deter- mining the Court having jurisdiction in the matter of the winding-up, be deemed to be registered in that part of the United Kingdom where its principal place of business is situate ; or, if it has a principal place of business situate in more than one part of the United 428 THE COMPANIES ACT, 1862. Sect. 199. 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 principal 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 office of the company (S) : (2.) No unregistered company shall be wound up under this Act voluntarily or subject to the supervision of the Court (t) : (3.) The circumstances under which an unregistered company may be wound up are as follows ; (that is to say,) (Z) (a.) Whenever the company has dissolved or has ceased to carry on business, or is carrying on business only for the purpose of winding-up its affairs ; (b.) Whenever the company is unable to pay its debts j (c.) Whenever the Court is of opinion that it is just and equitable that the company shall be wound up : (4.) An unregistered company shall, for the purposes of this Act, be deemed to be unable to pay its debts (tj). (a.) Whenever a creditor to whom the 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 company, or by delivering to the secretary or some director or principal officer 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 weeks succeeding the service of such demand neglected to pay such sum or to secure or compound for the same to the satisfaction of the creditor : (h.) Whenever any action, suit, or other proceeding has been instituted against any member of the company 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 institu- tion of such action, suit, or other legal proceeding THE COMPANIES ACT, 1862. 429 having been served upon the company by leaving Sect. 199. 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 legal proceeding to be stayed, or indemnified the defendant to his reasonable 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: (e.) 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 authorized 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 pay- ment on an extract decree, or an extract registered 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 its debts. (o) See note, pp. 431, 432, infra. (S) s. 39. (/8) Seven members, but not necessarily (e) See note to s. 129. seven shareholders. South London Fish- (0 Of. s. 79. market Co., 39 Ch. Div. 824 ; of. s. 79 (3). (n) Gf. s. 80. (o) Gf. ss. 176, 177. The meaning to be attached to the term " unregistered company " in this Meaning of section has been the subject of conflicting dicta in several cases {y). " unregistered The principal difficulty appears to have been raised by the words used by ^"'rany." (y) See Torquay Bath Co., 32 Beav. 581 ; 1 Ch. 329 ; Bank of London, ^c, Associa- Bowes V. Hope, ire. Insurance Society, 11 tion, 6 Ch. 421. H. L. C. 389; London India Rubber Co., 430 THE COMPANIES ACT, 1862. Sect. 199. Lord Westbury in Bowes v. The Hope, &c., Insurance Society (z) : " The term ' unregistered companies ' found in the 8th part of the Act I think plainly ^Sed'under iiidudes all companies that had been registered, other than companies regis- prevkras^Acts'; tered under that particular Act of 1862. The meaning of the phraseology of that Act appears to be this, that the words ' registered companies,' when used in the Acts (sic), mean companies registered under the Act itself ; and unregistered companies mean those companies which had been registered antecedently to the passing of the Act. This company had been registered under the original Act of 1844; it was, therefore, what the Act of 1862 called an unregistered company." It will be observed that the company in respect of which a winding-up order was here made, was a company registered under the Act of 1844— an Act which is expressly excepted from sect. 175 of this Act. The decision in this case, therefore, is not la conflict with the cases cited under sects. 129, 176 ; but the dicta above quoted seem clearly to be in conflict with them. It will, moreover, be observed, that the attention of the House had been called to sects. 175 and 176, and to the case of Be Torquay Bath Oo. (a), cited supra, sect. 129. The above cases were, however, commented upon in In re London India BuVber Co. (b), and that case is a direct authority that a company registered under the Joint Stock Companies Acts (sect. 175) is not an unregistered company within this section. In ire re Bank of London, &c., Association (c), Hatherley, L.C., is reported to have said, " Every company registered under any other Act than the Act of 1862 is considered unregistered for the purposes of that Act ; " but it is conceived that these words must not be pressed. Companies -^ company which ought to be but is not registered under the Act, is an illegal from Illegal association of individuals : and no member who was particeps criminis want of regis- i^ -tjje matter, could, it is conceived, avail himself of the provisions of the la ion , ^p^ ^ wind up a concern whose very existence is a deflance of the law. Whether such a company could be wound up upon the petition of a bond fide creditor, or even in some cases upon that of a contributory, see ante, p. 4. unincorporated Unincorporated companies which have never been registered under any companies not Act are included in the term " unregistered companies," and may be wound registered up under this Section. ei any , ipjj^g^ where an unregistered company had been dissolved by resolutions passed by the proprietors pursuant to their deed of settlement, its place of business abandoned, and its assets and liabilities transferred to another company, before the passing of 'this Act, the company was within the Act ; and so long as anything remained to be done with reference to the winding- up its affairs, either as regarded the parties inter se, or the creditors of the company, it was carrying on business for the purpose of winding-up its affairs within sect. 199 (3); and a winding-up order was accordingly made (d). So a company provisionally registered under the Act of 1844 (7 & 8 Vict, c. 110), but not otherwise registered, has been wound up (e). Insurance companies formed in the interval between the passing of the Act of 1856 (19 & 20 Vict. c. 47) and that of 1857 were not required to be registered; such companies may, therefore, be wound up as unregistered companies under this Act (e). («) 11 I-I. L. C. 389. (d) FamUij Undawment Society, 5 Ch. (a) 32 Beav. 581; 11 W. K. 653; 2 118. N. R. 98. (d) Bank of London, Sic, Association, 6 (6) 1 Ch. 329. Ch. 421 ; and see Womershij v. Merritt, 4 (c) 6 Ch. 421, 425. Eq. 695 (cited infra, s. 209). THE COMPANIES ACT, 1862, 431 A friendly and provident society, which had ceased to carry on business Sect. 199. for many years, was wound up (/). other com- A company iacorporated in another jurisdiction, but not in this country, panics, whose principal place of business is in another jurisdiction, but which has ^^,^,^5 ^g^_ an ofilce and has assets in this country, may be wound up here (g), and the panies. pendency of a foreign liquidation does not aflFect the jurisdiction of the Court to make a winding-up order (7i). But there is no jurisdiction to wind up a company established in a foreign jurisdiction which has no ofiBce or branch in this country, but which carries on business here by means of agents (i). It is to be observed that in this case the company had no assets here and that the petition was that of the company itself (i). AVhere there is a winding-up order in the foreign jurisdiction and a wind- ing-up order is made here, the latter may no doubt be conveniently conducted as ancillary to the former (h). The exception from this section of railway companies incorporated by Act Railway com- of Parliament applies only to companies whose principal object is the con- P^'^y- struction of a railway. A company whose principal object is the construction of docks is not brought within the exception by reason of having power also to make a branch railway for purposes connected with the docks (k). The Eailway Companies Act, 1867, s. 3, defines a railway company to be for the purposes of that Act " a company constituted by Act of Parliament, or by certificate under Act of Parliament, for the purpose of constructing, maintaining, or working a railway (either alone or in conjunction with any other purpose)." Within this statute a dock company authorized to con- struct short railways to connect the dock with other railways is a "railway company " (T). And a company formed by Act of Parliament for making a dock which was afterwards authorized by an Act obtained by another company a railway company, to make a short railway over the dock com- pany's land connected with the line of the railway company, and to work it for through trafflc, was held to be a railway company within the same section (m). It would seem, upon the authority of Jones v. Oharlemont (n) and Clements V. Bowes (0), that the jurisdiction of the Court to wind up an incorporated company upon action brought is not ousted by the Winding-up Acts (p) ; and such companies not being included in sect. 5 of the Bankruptcy Act, 1869, or sect. 123 of Act of 1883, it is conceived that they may be adjudged bankrupt. Where provision had been made by special Act of Parliament for the dissolution of a railway company, and the winding-up of its affairs, a demurrer for want of equity to a bill filed praying that the company might be wound up and the accounts taken was overruled (q). By the Abandonment of Eailways Act, 1869 (r) :— " Where a warrant has Abaadoaed been granted under the principal Acts for the abandonment of the whole railways. (/) -^freton District, ^c. Society, 11 (J) Great Northern Eailwau Co >- W. E. 301 ; 7 L. T. 817. Tahmrdin, 13 Q. B. Div. 320. ' ' ig) Comrrwrcia! Bank of India, 6 Eq. (m) East and West India Dock Co 38 517 ; Matheson Brothers, Limited, 27 Ch. D. Ch. Div. 576. But as to the Railway aad 225 ; Commercial Bank of South Australia, Canal Traffic Act, 1854, see East and West 33 Ch. D. 174. See further as to foreign India Dock Co. r. Shaw, 39 Ch. D 524 companies, s. 79, note. (n) 16 Sim. 271 ; 12 Jur. 532.' (h) Matheson Brothers, Limited, 27 Ch. (0) 17 Sim. 167, 174. D.iib; Commercial Bank of South Australia, \p) See these cases noticed in Wardy. 33 Ch. D. 174. Sittingbmrne Railway Co., 9 Ch. 488 492 ' (0 Lloyd G^nirale Italiano, 29 Ch. D. (?) Ward v. Sittingbourne Sailwav Co 219. 9 Ch. 488. " '' (k) Exmonth Docks Co., 17 Eq. 181. (r) 32 & 33 Vict. u. 114 s. 4. 432 THE COMPANIES ACT, 1862. Sect. 199. Railway com- pany can register and then wind up. Companies in- corporated by special Act of Parliament. railway of any railway company a petition for winding-up the affairs of such ■ company may be presented under the Companies Acts, 1862 and 1867, by the company, or by any person who under the last-mentioned Acts is authorized to present a petition for winding-up a company, or by any person upon whose application the Board of Trade may proceed in pursuance of sect. 32 of the Eailway Companies (Scotland) Act, 1867, and the Railway Companies Act, 1867, as the case may be, and for that purpose the railway company whose railway is so authorized to be abandoned shall be deemed to be an unregistered company, which may be wound up under the Companies Acts, 1862 and 1867, and the provisions of the principal Acts which remain in force relating to winding-up shall be construed as if the Companies Acts, 1862 and 1867, and the winding-up provided by this section, were therein referred to." By this Act the difiSculty which had arisen under the previous Acts (s), above called the principal Acts, under which it was held that a creditor could not petition for a winding-up order (t), has been removed. Under these Acts a compulsory order has been made upon the petition of the holder of only one share, three out of the four directors being in favour of the winding-up (m). Some recent cases as to the application of the Parliamentary Deposit ■where a railway company or other company incorporated by special Act is wound up are discussed, ante, pp. 283, 284. It has been decided in Ireland that a railway company may be registered under the Companies Act, and wound up under its provisions (x). A tramway company incorporated by special Act is not a " railway com- pany," and may be wound up (y). An order has been made to wind up a ferry company incorporated by special Act of Parliament, although it was urged that the company was in its nature similar to a railway company (z). So also a telegraph company (a) and a waterworks company (6) have been wound up. The Court has jurisdiction to wind up a canal company incorporated by special Act of Parliament (c), and will make an order when it considers it "just and equitable" that the company should be wound up, even although the special Act contemplated its existence in perpetuity, and the winding-up petition be opposed (d) ; and the Court will not be deterred from making an order by the fact that the company cannot be fully wound up and its property sold without an application to Parliament (b), for it is the constant course of the Court to sanction in chambers an application to Parliament (e). The order may be made on the petition of the company itself (e). Biit where, in an Act of Parliament incorporating a company, it is stated that the construction of the works authorized by the Act is of public advantage, the Court will be reluctant to make a winding-up order unless (s) viz., the Abandonment of Railways Act, 1850, 13 & 14 Vict. c. 83; the Rail- way Companies Act, 1867, 30 & 31 Vict. c. 127 ; and the Railway Companies (Scot- land) Act, 1867, 30 & HI Vict. c. 126. (i) North Kent Railway Extension, 8 Eq. 356. («) S/iipton and ^YharfdaJe Eailimy Co., 20L. T. 359; W.N. 1869,88. (») Ennis and West Clare Sailu-ay Co., 3 L. R. Irish, 94. (!/) Brentford Tramway Co., 26 Ch.D. 527. {z) Me of Wight Ferry Co., 2 H. & M. 597. (a) Electric Telegraph Co. of Ireland, 22 Beav. 471. (6) Barton Water Co., 42 Ch. D. 585. (o) Se The Proprietors of the Basingstoke Canal, 14 W. R. 956. As to a canal com- pany being a " commercial or trading com- pany," see Warwick Canal Co., E. p. Croys- dill, 7 D. M. & G. 199. (rf) Wey and Antn Junction Canal Co., 4 Eq. 197. (e) Bradfoi-d Navigation Co., 10 Eq. 831. An appeal was defeated by want of locus standi on the part of the appellants, 5 Ch. 600. THE COMPANIES ACT, 1862. 433 it be shewn that there is no other procesfs by which its difficulties can be Sect. 199. overcome (/). ■ A company which is to be formed on certain terms and under certain Abortive conditions, but which has in fact never been formed, cannot be wound up companies, as an "unregistered company," because preliminary expenses have been incurred; and, quaere, whether provisional directors can, by acting under the name of the company, be so associated as to form a body capable of being wound up {g). But whether an association or partnership has been formed or not is a Partnership. question of fact. Thus, where — in reply to a circular issued by M. and D. setting forth a project for acquiring and re-modelling a theatre at the cost of £12,000 with the intention of selling it to a company, to be formed for the purpose, for £40,000, which would enable a return to be made of £300 for every £100 subscribed, — persons exceeding seven in number subscribed to the project, they were held to be partners, and a winding-up order was made Qi). In such a case, if more than seven members admit the existence and insolvency of the association, there is ground for an order, although other alleged members deny its existence. The question whether the latter are members or not must be decided in subsequent proceedings (0- An order has been made to wind up an unregistered association consisting of four firms containing in all eight members (k). Previous to the Industrial and Provident Societies Act, 1876 Q), indus- Industrial and trial and provident societies were governed by the Industrial and Provident pro/idsit Societies Act, 1862 (25 & 26 Vict. c. 87), and by sect. 17 of that Act the juris- =""'="«'• diction to wind them up was in the County Court. The Court of Chancery had no jurisdiction to wind up such a company as an unregistered company under this Act where omission had been made in registering it under the Industrial and Provident Societies Act. Therefore, where an industrial society had been registered under the Industrial and Provident Societies Act, 1852 (15 & 16 Vict. c. 31), but not under the Act of 1862 (25 & 26 Vict. c. 87), the Court refused to make a winding-up order under this Act, and recommended that the company should be registered under the Act of 1862, and wound up in the County Court (m). Be Sheffield and Hallamshire, &c., Co-operative Society (ra) was a similar case, in which, on the matter being mentioned to the Lord Chancellor, he concurred in opinion with the judge below, and the society was accordingly registered under the 25 & 26 Vict. c. 87, and wound up in the County Court. In lie Chatham Co-operative Induxtrial Society (o), an industrial society, registered under the Act of 1852, but not under that of 1862, having obtained a winding-up order under this Act, and having subsequently been registered under the Industrial and Provident Societies Act, 1862, the winding-up order was upon motion discharged as irregular. (/) Exmmth, Docks Co., 17 Eq. 181 ; 36 L. T. 651. Free Fishermen of Faversham, 36 Ch. Div; (k) Adansonia Fibre Co., see 9 Ch. 635, 329 ; South London Fishmarket Co., 39 Ch. 637, n. Div. 324 ; of. Serne Bay Co., 10 Ch. D. (0 39 & 40 Vict. c. 45. 42, 47. (m) Rotherhithe, ^c, Industrial Society, (g) Imperial Anglo-German Bank, 25 32 Beav. 57. L. T. 895; 26L.T. 229; W. N. 1872, 340. (re) See 34 L. J. (Ch.) 593; 11 Jur. (K) Royal Victoria Palace Theatre Syn- (N.S.) 553. dicate, 29 L. T. 668 ; 30 L. T. 3 ; W. N. (o) 33 L. J. (Ch.) 737 ; 4 N. K. 481 ; 12 1873, 224; 1874, 8. W. R. 1053 ; 10 Jur. (N.S.) 983. (i) South of France Pottery Syndicate, 2f 434 THE COMPANIES ACT, 1862. Sect. 199. By sect. 17 of the Act of 1876 societies registered or deemed to be registered '- under that Act may be dissolved by an order to wind up, or by a resolution for winding-up made as directed by this Act, and the provisions of this Act are to apply, except that the Court having jurisdiction is to be the County Court. Bunefit buiia- Under the Building Societies Act, 1874 (p), a winding-up petition can be ing societies, presented only by a member authorized by three-fourths of the members present at a meeting, or by a judgment creditor for not less than £50 (?) ; and the Court having jurisdiction is the County Court (r). Previous to that Act, it was held that a benefit building society, not registered under the Industrial and Provident Societies Acts, 1852 and 1862, was subject to the provisions of this Act with respect to winding-up ; and (per Turner, L.J.) such a society was not within the provisions of the Industrial and Provident Societies Acts. The last-mentioned Acts seem to apply only to societies formed for carrying on or exercising any trade or labour (s). Where a petition to wind up a benefit building society was presented by a holder of fully paid-up investment shares, who had given notice of with- drawal, and had served a notice requiring immediate payment, which was not complied with, the Court, being of opinion that the society was solvent, although its assets were not capable of immediate realization, held that this was an answer to a member, though it would have been none to an outside creditor ; and being of opinion that the object of the petitioner was to obtain an unfair priority over other persons in a like position, dismissed the petition, which was supported by no person beside the petitioner (t). A withdrawal member is not equivalent to a creditor («). Loan society. A loan society was held to be within the Winding-up Act, 1849 (x). Mutual Mutual -insurance societies formed since the commencement of the Act societies. require to be registered, and if unregistered, are illegal. Such societies therefore, if unregistered, cannot properly be the subject of a winding-up order at all (y). Another difficulty in the way of a winding-up order is that in such societies it may be that no one is liable to contribute anything, and if so, and if the society is unregistered, it may be that a winding-up order cannot be made (z). Orders were, however, made in Shields Marine Insur- ance Association (a), London Marine Insurance Association (V), in both of which cases the society had been formed before November, 1862, and in Albert Average Association (c). But a mutual life insurance society formed before the Act and not required to be registered under the Act may be wound ujj, and there is jurisdiction under the Life Assurance Companies Act, 1870, to make an order, although there may be no liability in any one to contribute to the payment of debts. For sect. 2 of the Life Assurance Companies Act, 1870, contains a definition of " company " which includes it (d). (p) 37 & 38 Vict. I. 42, s. 32. (m) Wal/!cr v. General Mutual Building Iq) See this section commented on, supra, Society, 36 Ch. Div. 777. p. 230. (») E. p. James Smith, 1 Sim. (N.S.) 165. (f) 37 & 38 Vict. c. 42, s. 4. (i/) Fadstow Association, 20 Ch. Div. (s) Midlatid Counties Bciwfit Building 137 ; Hargrove arul Co., 10 Ch. 542 ; and Socirti/, 4 D. J. & Sm. 468 ; I'i W. R, 661 ; see ante, p. 4. 13 W.' K. 399 ; 33 L. J. (Ch.) 620, 739 ; (z) Merchant's and Tradesman's Society, and see St, George's Benefit Building Society, 9 Eq. 694 ; Great Britain Mutual Society, 4 Drew. 154; Doncastcr Permanent Build- 16 Ch. Div. 246, 251. ing Society, 3 Eq. 158 ; Queen's Benefit (a) Zee and Moor's Case, 5 Eq. 368. Building Society, 6 Ch. 815; Professional, (b) 8 Eq. 176, 185. ^c, Benefit Building Society, 6 Ch. 856. (c) 5 Ch. 597 ; 13 Eq. 529. (t) Planet Benefit Building Society, 14 (d) Great Britain Mutual Society, 16 Ch. Eq. 441. Div. 246. THE COMPANIES ACT, 1862. 435 By sect. 3 of the Trustee Savings Bank Act, 1887 (50 & 51 Vict. c. 47), a Sect. 200. trustee savings bank certified under the Trustee Savings Bank Act, 1863 seven members." (26 & 27 Vict. c. 87), may be wound up as an unregistered association upon ^''"^^'^^ the petition of any person competent under the Companies Acts to petition, or of the commissioners for the reduction of the national debt, or of -a commissioner appointed under the Trustee Savings Bank Act, 1887. The meaning of the word "association" has been discussed, ante, p. 3. Clubs. It was also discussed in the St. Jaines' Club Case (e), where it was held that a club was not an " association " within the then Winding-up Acts. Having regard to sub-sect. (1), which speaks of the " place of business " Literai-j- of the unregistered company, it must be a trading company to fall within society. the section. Accordingly an order has been refused in the case of a literary and scientific institution not established for the purpose of gain (/). If at the date of the petition the members are less than seven in number '■ More than there is no jurisdiction under the Act to wind up an unregistered company. An action must be brought {g). By an unregistered company is meant one which is unregistered at the " Unregis- date of the commencement of the winding-up. Eegistration subsequent to '^'■''^• the presentation of a winding-up petition is a nullity Qi). All the provisions of the Act with respect to winding-up are to apply. Liability of By sect. 75, therefore, the liability of a contributory of a company, not contributory, registered under the Act, but wound up under it, is of the nature of a specialty debt (i). Service of a winding-up petition can be effected on an unregistered Service of company under Rule 3 of the General Order, 11th of November, 1862, infra Qc). P«t'«™' 200. In the event of an unregistered company being wound Who to be up every person shall be deemed to be a contributory (a) who is tributory in liable, at law or in equity, to pay or contribute to the payment ^^^ event of ,.,.,.„, 1 company being of any debt or liability of the company, or to pay or contribute woimd up. 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 winding-up the company, and every such contributory shall be liable to con- tribute to the assets of the company ia the course of the winding- up all sums due from him in respect of any such liability as aforesaid ; but in the event of the death, bankruptcy, or insolvency of any contributory,, or marriage of any female contributory, the provisions hereinbefore contained with respect to the personal representatives, heirs, and devisees of a deceased contributory (/3), and to the assignees of a bankrupt or insolvent contributory (y), and to the husband of married contributories (S), shall apply. (a) ss. 38, 74, 105, 196 (5). (7) s. 77. (;8) s. 76. (5) s. 78. (e) 2 D. M. & G. 883. (i) In re (/) Bristol AthencBum, 43 Ch. D. 236. Sharp, 10 Eq. 443.' (jr) Bolton Benefit Loan Society, Coop v. Qi) City of London and Colonial Financial Booth, 12 Ch. D. 679 ; South London Fish- Association, 15 W. R. 1095 ; 36 L. J. (Ch.) market Co., 39 Ch. Div. 324. 832. (A) Hercules Insurance Co., 11 Eq. 321. 2f2 436 THE COMPANIES ACT, 1862. Sect. 200. "Liable ... to pay or contribute to the payment of any sum for the adjustment of the rights of the members amongst themselves "—these words A mere debtor JQ^end a legal or equitable liability to contribute in the character of a is not a°con-"^ Partner : they cannot be held to include a mere debtor to the company. tributory. Thus the mortgagee of a ship, which was insured in a mutual insurance society, and who, as such mortgagee, had, in accordance with the rules of the society, given a guarantee for the payment of all contributions and averages in respect of the ship, was held not to be a contributory (0- And so a shareholder who transferred his shares when calls were in arrear, and who might therefore be a debtor to the company for the calls, was held not to be on this account a contributory in the winding-up ; for he was not liable at law or in equity to contribute to any debt of the company, but was merely a debtor to the company. And although the money coming from him might be used for settling the debts of the company or adjusting liabilities between the shareholders, this did not constitute him a contributory (m). So in the case of an unregistered company which is a corporation (as a build- ing society under the Building Societies Act, 1874) the member is not either at law or in equity liable to contribute to pay the debts, except so far as the statute makes him a contributory to the common fund out of which the debts are to be paid. The corporation, not the member, is debtor (ra). And so a debtor to the company, or a cestui que trust of shares in the company, or an oflBoer of the company who has misappropriated its assets, may each be compelled to pay moneys which will be part of the assets of the company, but they are not contributories, and cannot be made liable as such (o). So a person who by virtue of sect. 11 of the Savings Bank Act, 1863 (26 & 27 Vict. c. 87), was liable for neglect or omission as in that section mentioned, was not a contributory by virtue of this section, although liable under sect. 165 {p). Misrepresen- But the liability of one of the partners to make good such a misrepre- tation by pro- gentation as that in EawUns v. Wickham (q) is a liability for which he may 1110 eis. ^g made answerable as a contributory. Thus where two promoters issued a circular containing a statement that the entire cost of the operations for which the company was to be formed would be £12,000 " and of this sum £5000 only remains for subscription," they were held to be contributories to the amount of £7000, or of so much of that sum as they failed to shew had been subscribed by other persons (r). Nominee bond " Liable at law, or in equity, to pay or contribute . . ."—these words do .''*■ not include persons who on purchasing shares have, for bond fide reasons, had them transferred to, and registered in the name of, a nominee (s). Nominee not But where 0. took shares in a company, and for the purpose of giving the bond fide. company a fictitious importance, caused the shares to be transferred into the names of nominees, an order was made, having regard to the absence of bond fide trusteeship on the part of the nominees, to put C.'s name on the list of contributories without prejudice to any application to add the names of any other person or persons in respect of the shares (t). (J) Lee and Moor's Case, 5 Eq. 368. (r) Moore and J)e La Torre's Case, 18 (m) E. p. Littledalc, 9 Ch. 257. Eq. 661. In) S/ieffieldBuilding Soc.,22q.'B.X).i70. (s) King's Case, 6 Ch. 19S; see note to (o) British Nation Association, 8 Ch. s. 30, supra. Div. 679, 708. (i) Cox's Case, 4 D. J. & S. 53 ; 33 L. J. (p) Cardiff Savings Bank, W. N. 1890, 74. (Ch.) 145 ; 12 W. R. 92 ; 3 N. R. 97 ; and (q) 3 De G. & J. 304. see note to s. 30, supra. THE COMPANIES ACT, 1862. 437 If two persons are joint tenants of shares in a company whose deed, of Sect. 200. settlement contains a covenant by each shareholder for himself, his heirs, ": " executors, and administrators to satisfy the obligations attaching to the ^f shares.' shares, and one of them dies, his executors will in the winding-up be put on the list with the surviving owner, but only in respect of liabilities incurred up to the death of their testator (m). But, in the absence of anything to the contrary in the articles, the covenant into which members are by sect. 16 to be taken to have entered, will be a joint and not a joint and several covenant. Upon the death of one joint tenant, therefore, his liability as a present member will cease (x). Where S. had agreed in writing to become a member of a marine mutual Mutual insui- insurance society, and had contributed to the losses of other members, and ^"''^ society. made a claim in respect of injury sustained by his own ship, but no stamped policy had ever been executed ; it was held that in the absence of a duly stamped agreement for insurance there was not, under 35 Geo. 3, c. 63, evidence of a binding mutual contract for insurance, and that S. was not a contributory (y). But where B. & Co. by letter authorized the managers of such a society to insure a ship with the society, and undertook to abide by the rules, and a duly stamped policy, containing,' however, no reference to the rules, was issued to them ; it was held that the letter, though unstamped, was ad- missible in evidence, that the letter and policy together constituted a binding agreement, and that B. & Co. were, therefore, contributories (z). In a society of this kind the winding-up order does not displace or alter the terms of the contract between the parties (a). Where no stamped policy had been issued, but, the ship insured having Proof on au been lost, the validity of the claim in respect of the policy had been admitted unstamped by the company, as was shewn by the fact of their having raised the P^'^y- money, and by entries in their books, before a winding-up order was made ; it was held that although the policy itself, being unstamped, could not be put in evidence, yet that there had been a sufBcient admission of liability by the company, and proof in respect of the amount insured was allowed in the winding-up (b). The principle upon which the liability in respect of the costs of the Costs of wind- winding-up is to be distributed is conceived to be, that the costs must be ing-up. borne in proportion to the interest of the members in the assets or their liability to the debts of the association (c). Thus in the case of a mutual insurance association where there were no shares, it was held that the costs must be borne by payers and receivers pro rata according to the amounts to be paid or received by them respectively, the Court treating the association as an agency established by both receivers and payers, and the winding-up as a proceeding for taking the accounts for the benefit of both parties (a). In an insurance company whose policies provide that the funds of the company shall alone be liable, and that no shareholder shall be liable to claims in respect of policies beyond the amount of his shares, the costs of the winding-up must be borne by the shareholders and not paid out of the funds of the company (d). («) Eirby's Executors' Case (Alb. Arb.), (b) Martin's Claim, 14 Eq. 148. Eeil. 67 ; 15 Sol. J. 922. (c) Freece and Evans' Case, 2 D. M. & G. (a) Sill's Case, 20 Eq. 585 ; see anfe,p. 206. 374 ; London Marine Insurance Association, iy) Smith's Case, 4 Ch. 611. 8 Eq. 176. (z) Blyth ^ Co.'s Case, 13 Eq. 529. (d) Professional Life Assurance Co., (a) London Marine Insurance Associa- 3 Eq. 668 ; 3 Ch. 167 ; Lethhridge v. Adams, tion, 8 Eq. 176. 13 Eq. 547 ; and see supra, p. 297. 438 THE COMPANIES ACT, 1862. Sect. 201. For the contract of the policy-holders is, that the funds of the company remaining undisposed of at the time of enforcing the agreement, that is, at the date of the winding-up, and inapplicable to prior claims, shall be liable to them. Any costs of realisation, such as costs of sale, must of course be deducted, and the net sale moneys only are the applicable assets; but costs of enforcing payment of calls and such like, that is, aU general costs of winding-up, must be borne by the shareholders (e). And where the liquidator compromises with a contributory for a lump sum, the limited assets available for the policy-holders have a first claim to have the amount due to the limited assets satisfied out of the sum received, and the unlimited assets available for general creditors or for costs can take only what is left (/). Past members. It will be observed that this section contains nothing similar to the pro- visions of sect. 38, exonerating past members who have ceased to be members for more than a year from liability in respect of debts contracted before they left the company. Stannaries By the Stannaries Act, 1869 (32 & 33 Vict. c. 19), s. 25 : Act, 1869, Limitation of Liability of past Shareholders.'] On a company being wound up in the Court of the Vice-Warden or any other Court, a former share- holder, notwithstanding the provisions contained in the Companies Act, 1862, part 8, s. 200, shall not be liable to contribute to the assets of the company if he has ceased to be a shareholder for a period of two years or tipwards before the mine has ceased to be worked or before the date of the winding-up order. Where transfer was made in Oct. 1876, the mine ceased to be worked in July, 1877, and the winding-up order was made in March, 1879, on a petition presented in Jan. 1879 the transferor was held not to be liable as a past member (g). The words "before the mine has ceased to be worked " might be left out altogether : if a man has ceased to be a share- holder two years before the winding-up order he is discharged (3). Power of Court 201. The Court may, at any time after the presentation of a further pro- Petition for winding-up an unregistered company, and before ceedings. making an order for winding-up the company, upon the applica- tion of any creditor of the company, restrain further proceedings in any action, suit, or proceeding against any contributory of the company, or against the company as hereinbefore provided (a), upon such terms as the Court thinks fit. (a) s. 85 ; et cf. ss. 197, 204. See the notes to sect. 85, supra, where will be found some observations on the frame of this section, which provides only for application by a creditor, and not for application by company or contributory. Effect of order 202. Where an order has been made for winding-up an un- for winding-up registered company, in addition to the provisions hereinbefore contained (a) in the case of companies formed under this Act, it is hereby further provided that no suit, action, or other legal (e) Agriculturist Cattle Itisurance Co., L. T. 914 ; Accidental Death Insurance Co., E. p. Official Manager, 10 Ch. 1. 7 Ch. D. 568 ; noticed ante, p. 298. (/) See International life Assurance (3) Chynoweth's Case, 15 Ch. DW. 13, Society, 2 Ch. Div. 476 | He same Co., 36 21. THE COMPANIES ACT, 1862. 439 proceeding shall be commenced or proceeded -with against any Sect. 203. 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) 5. 87 ; et of. ss. 198, 204. See the notes to sect. 87, and Oray v. Eaper (K). This section only applies to actions brought against contributories as such to enforce payment of a debt of the company (i). 203. If any unregistered company has no power to sue and be Provision in sued in a common name, or if for any reason it appears expedient, tered°com Iny 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 all 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 thereupon the same or such part thereof as may be specified in the order shall vest accordingly, and the official liquidator 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, suits, or other legal proceedings 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. The effect of a vesting order is that the property vests, in the offloial , liquidator, not in his personal but in his oflicial character. He does not become personally liable in respect of obligations attaching to the property {k). But where an order was made vesting the property in six liquidators, a conveyance by two of them operated (notwithstanding ss. 95 and 92, and an order under s. 92 that acts might be done by any two of the liquidators) to pass only two-sixths of the legal estate Q). A vesting order can be obtained on an ex parte motion (m). But the trustee in whom the property is vested may be served (»). 204. The provisions made by this part of the Act with respect Provisions in to unregistered companies shall be deemed to be made in addition *umJfative. '^^ to and not in restriction of any provisions hereinbefore con- (A) L. E. 1 C. P. 694 ; Graham v. Edge, (J) Ehsworth and Tidy's Contract, 42 20 Q. B. D. 638, 683. Ch. Div. 23. (i) South of France Pottery Syndicate, (m) Albert Life Assurance Co., 18 W. R. 37 L. T. 260 ; 25 W. K. 370. 91. (A) Graham t. Edge, 20 Q. B. D. 538, (n) Britannia Building Soc., W. N. 1890, 683 5 Ebsworth and Tidy's Contract, 42 Cii. 170. Div. 23, 44. 440 THE COMPANIES ACT, 1862. Sect. 205. tained (a) with respect to winding-up companies by the Court, and the Court or official liquidator may, in addition to anything 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 vmder this Act ; but an unregistered company shall not, except in the event of its being wound up (/3), be deemed to be a company under this Act, and then only to the extent provided by this part of this Act. (a) ss. 74-128, and 153-173. is pending, Sudow t. Great Britain Mutual (/3) Including the time when a petition Society, 17 Ch. Dir. 600. The Court will give to this section its due effect, and will refuse to hold any of the foregoing provisions inapplicable to the case of unregistered com- panies, on the ground that this section includes them per incuriam. Thus to an unregistered company, sect. 95, sub-sect. 5, is applicable ; and the ofBcial liquidator will be allowed to prove against a bankrupt contribu- tory, notwithstanding the general rule that joint creditors cannot prove against the separate estate of a partner in competition with separate creditors (o). The section renders applicable to unregistered companies the whole, except as expressly excepted, of Part IV. of the Act (p). as to repeal. PAET IX. Eepeal of Acts and Tempokaey Peovisions. Repeal of Acts. 205. After the Commencement of this Act there shall be re- pealed the several Acts specified in the first part of the third schedule hereto, 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. Saving clause 206. No repeal hereby enacted shall affect, (1.) Anything du'y done under any Acts hereby repealed : (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 jpenaltij, forfeiture, or other punishment incurred in respect of any offence against any Act hereby repealed : (a) (5.) Table B. in the Schedule annexed to the Joint Stock Com- panies Act, 1856, or any part thereof, so far as the same (i.) E. p. Ball, 10 Ch. 48 ; cf. Se Mug- (p) Sudow v. Great Britain Mutual geridge, Muggcridge r. Sharp, 10 Eq. 443. Society, 17 Ch. Div. 600. THE COMPANIES ACT, 1862. 441 applies to any company existing at the time of the com- Sect. 207. mencement of this Act. (a) Struck out by Statute Law Revision Act, 1875. The power of making contracts in writing, signed by their agents, conferred ' ^^ by sect. 41 of the Joint Stock Companies Act, 1856, is a " right or privilege incurred under " that Act within this section, and is, therefore, unaffected by the repeal of that Act (2). 207. Where previousli/ to the commencement of this Act an order Saving of exist- has been made for winding-up a company under any Acts or Act in^vinmng-up. herdn/ repealed, or a resolution has heen passed for winding-up a company voluntarily, such company shall he wound up in the same manner and with the same incidents as if this Act were not passed, and for the purposes of such winding-wp such repealed Acts or Act shall he deerfied to remain in full force. This section is repealed by Statute Law Eevision Act, 1875. The following are cases under this section : Ee Public Life Assurance Society (r). Be Economic Omnibus Go. (s). Ee West Silver Banh Mining Co. (f). Be Fire Annihilator Co. («). 208. Where previously to the commencement of this Act any Saving of con- conveyance, mortgage, or other deed has been made in pursuance '^^5'^'"^^ of any Act hereby repealed, 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. Every insurance company completely registered under Compulsory the Act passed in the eighth year of the reign of her present of M^-tain'"' Majesty, chapter one hundred and ten, intituled " An Act for the companies. Eegistration, Incorporation, and Eegulation of Joint Stock Com- panies," shall on or before the second day of November, one thousand eight hundred and sixty-two, and every other company 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, in manner and subject to the regulations hereinbefore contained (a), with this exception, that no company 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 enabliug such insurance companies as are mentioned in this fq) Prince v. Prince, 1 Eq. 490. (0 32 Beav. 226. (r) 7L. T. 302 (m) 32 Beav. 561; 2 N. E. 99; 11 (s) 7 L. T. 399] W. R. 652 ; 9 Jur. (N.S.) 633. 442 THE COMPANIES ACT, 1862. Sect. 210. section to register under this Act, this Act shall be deemed to come into operation immediately on the passing thereof (j3) ; 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) See Part VII., supra, p. 418. (;8) s. 2. A trade partnership of more than twenty-five persons, formed before the passing of the 7 & 8 Vict. c. 110, and formally registered under the 58th section of that Act, but not otherwise registered, was not required by any of the Acts of 1844, 1856, and 1857, to register before the passing of this Act. Such a company is, therefore, not included in this section, and not subject to the penal consequences imposed by the 210th section: and, although incapable of suing in a corporate capacity, an action may be maintained by some of the partners on behalf of themselves and all the others {x). A company registering oompulsorily under this section is in the same position as if the registration had been voluntary. By sect. 196, therefore, all the provisions of the Act, including those (such as sect. 38) which are expressed to apply only to companies formed under the Act, are applicable to a company which is compulsorily registered {y). Penalty on 210. If any Company required by the last section to register ieM^t'e°Ing!' Under this Act makes default in complying with the provisions 21 Vict. c. 14, thereof, then from and after the day upon which such company is required to register under this Act, until the day on which such company 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 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 shall be payable to any shareholder in such company : (3.) Each 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 exceeding five pounds, and such penalty may be recovered 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 dis- ability which any company may have incurred under any Act (j) Womersley v. Mm-itt, 4 Eq. 695. (i/) Ramsay's Case, 3 Ch. Div._388. THE COMPANIES ACT, 1862. 443 hereby repealed by reason of its not having registered under the Sect. 211. said Joint Stock Companies Acts, 1856, 1857, or one of them. An insurance company wMcli has neglected to register under sect. 209 is, by this section, incapable of presenting a petition for a winding-up order ; and it will not be permitted to evade the section by joining a shareholder as petitioner (z). 211. Upon the application of the directors of any company Temporary registered under the Joint Stock Companies Acts as hereinbefore companies to defined (a), or any of them, made within one year after the date change regis- 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 Registrar 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 transferred, and the day upon which such transfer is pursuant to such certificate to take place, and shall attach tlie certificate to the memorandum ; and the said registrar shall thereupon transmit to the Registrar of Joint Stock Companies for that part of the United Kingdom to which the registered office is to be so transferred copies of the said certificate 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 su£h copies of certificate and memorandum, ^retain and register the same in like manner, and on payment of the like fees to him as provided in the case of the registration of an original memorandum of registration, and thereupon the place of the registered office shall, from the said last-mentioned 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 afi'ect anything theretofore done by the said company, or any of their rights or liabilities in respect thereof. (o) ». 175. This section is repealed by Statute Law Eevision Act, 1875. 212. The Board of Trade shall not issue their certificate w Restrictions . • ji n 1 "^ issue of pwrsuance of the foregoing section until they are satisfied that an certificate. («) Waterloo Life, #c., Assurance Co., 31 Beav. 586 ■ 32 L. J. (Ch.) 870. 444 THE COMPANIES ACT, 1862. Sect. 212. advertisement of the intention of the company to apply to the Board of Trade for a certificate, with a declaration that all parties objecting thereto are forthwith 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 com- pany is situate, and also if the compa^iy is registered in England in the London Gazette, if in Ireland in the Dublin Gazette, if in Scotland in the ]']dinburgh Gazette, nor until the said Board are satisfied that the objections, if any, that inay he urged against the issue of such certificate are groundless. This section is repealed by Statute Law Eevision Act, 1875. FutsT Schedule. THE COMPANIES ACT, 1862, SOH. I. 445 FIEST SCHEDULE. Table A. Art. 1. TABLE A. Eegolations for Management of a Company limited by Shares. These regulations are by sects. 14, 15, to be deemed, so far as applicable, to be the regulations of every company limited by shares and formed under the Act, tinless excluded or except as modified by articles of association. They are not applicable to companies formed and registered under the Joint Stock Companies Acts (s. 176) ; nor are they applicable to companies existing before, but registered under, this Act, unless adopted by special resolution (s. 196). They may, by special resolution, be altered by any company to which they are applicable (s. 50), and general power of altering them is by sect. 71 given to the Board of Trade. Shares (a). (1.) If several persons are registered as joint holders (j3) of any Joint holders' share, any one of such persons may give effectual receipts for any ''•'"-'P''- dividend payable in respect of such share. (a) Supra, s. 22 ; infra, art. (46). (;8) Supi-a, pp. 206, 437. As to the right of survivorship between joint holders of shares, see Oarrich V. Taylor (a), EilVs Case (b). (2.) Every member shall, on payment of one shilling, or such Share certifi- less sum as the company in general meeting may prescribe, be entitled to a certificate (a), under the common seal of the company, specifying the share or shares held by him, and the amount paid up thereon. (o) s. 31. (3.) If such certificate is worn out or lost, it may be renewed, on payment of one shilling, or such less sum as the company in general meeting may prescribe. Calls on Shares (a). (4.) The directors may from time to time make such calls upon Calls. the members (/3) in respect of all moneys unpaid on their shares as they think fit, provided that twenty-one days' notice (y) at least is given of each call, and each member shall be liable to pay (a) 29 Beav. 79 ; 4 D. F. & J. 159. (6) 20 Eq. 585. 446 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 4. Authority to make calls. the amount of calls so made to the persons and at the times and places appointed by the directors. Quorum. (a)^32 & 33 Vict. c. 19, ss. 10-13, as to companies in the Stannaries. (/3) S.23. (7) Arts. (35) (97) infra- The Act (differing in this respect from the Companies Clauses Consolida- tion Act (c) ) contains no provision as to the authority by which calls in a going company are to be made, but leaves this to be determined by the articles, or by Table A. when applicable. By sect. 16 calls made under the articles in a going company, and by sect. 75 calls made in the winding-up {d), are specialty debts, in which the heirs of the contributory are bound. Sect. 70 gives a short form of declaration in an action by the company against a member. The liquidator in a voluntary winding-up may enforce payment of a call previously made by the directors (e). Under the Stannaries Act, 1869 (/), calls may be made at any meeting of the company with special notice. A call made by directors not duly appointed (^), or at a time when the number of directors has fallen below the minimum prescribed by the articles (/j), or by such a number of persons as does not constitute a quorum (i), is invalid. Where, however, the articles contain an article similar to Table A. art. (56), and there has been a board of the minimum number, but by casual vacancies it has fallen below the minimum, a quorum of the continuing directors may act (/.;). Secus, if the continuing directors are less than a quorum Q). Under articles which included Table A. arts. (52), (53), and contained an article, " 3. The number of directors of the company shall be not less than three nor more than ten unless otherwise determined by the company in general meeting, and two directors shall form a quorum," it was held that art. 3 did not apply to the subscribers of the memorandum, and that two of the subscribers could not allot shares and appoint directors (m). In Thames Haven Bock Co. v. Base (n) the statute governing the company provided that its concerns should " be carried on under the management of twelve directors to be chosen, &c.," and named nine persons as the first directors ; it further provided that the directors for the time being should meet, and that they should not be competent to determine on any business unless at least five directors should be present. As matter of construction the Court came to the conclusion that the provision as to twelve directors was directory only, and held that when the number of directors had dropped to seven a call made by five of the seven was good (0). enacts that company to (c) 8 & 9 Vict. c. 16, s. 22, it shall be lawful for the make calls ; and under this section the power is, by virtue of sect. 90, in the directors ; Amhergate Hailwai/ Co. v. Mit- chell, 4 Ex. 540. (rf) Buck V. Eobson, 10 Eq. 629. (e) Stone v. City and County Banh, 3 ^^ ^ discount, it was held that this could not be treated as a payment of the call, for it was a set-off of money not actually due ((f). "Where the directors, having power to receive payment of calls in advance, paid into the bank the amount remaining uncalled on their shares, and on the same day appropriated the money in payment of their fees, it was held that there had been no bond fide payment of calls in advance, and that the directors remained liable on their shares (e). In Bance's Case (/), where a bonus had been improperly declared and credited to a director against arrears of calls due from him, it was said {g) that the transaction might perhaps have been properly declared wholly void and the contributory, as in the case last cited, left liable to the unpaid calls. But owing to the form of the application, the same result was arrived at by directing repayment under sect. 165. But, even where a company is in difficulties, there may be payments properly made to a director which, even having regard to his fiduciary position, he is not disabled from receiving, and if any such are applied in payment by way of set-off of moneys payable on shares, this will be an effectual payment. Thus where a company (whose articles, allowed directors to participate in the profits of contracts with the company), wishing to rid themselves of an onerous contract with the director, agreed with him to cancel the contract and pay him compensation, and in compliance with a condition in the agreement he applied the compensation in paying up his shares in full, this was held a good payment, although the company was wound up on a petition presented less than two months afterwards (h). Allotment The payment required on an allotment of shares is not a call (i). moneys. Who is liable to pay calls: — !I'°"'^y^-,. ,, This article, by providing that calls are to be made upon the members, who IS liable j - i o r • {z) 8 Ch. 254. {d) Hahershm's Case, 5 Eq. 286. (a) /Supra, p. 47 ; i'/i/ra, Comp. Act, 1867, (e) Sykes' Case, 13 Eq. 255. Contrast s. 25. I'oole's Case, 9 Ch. Div. 322. (b) Re London and Colonial Co., 7 Eq. (/) 6 Ch. 104. 550. ((/) 6 Ch. 115. (c) As to payments on shares, see fur- (A) Adamson's Case, 18 Eq. 670. thor, supra, p. 47 ; and infra, Conip. Act, (i) Croskey v. Bank of Wales, 4 Gifl'. 1867, s. 25. 314 ; 9 Jur. (N.S.) 595. THE COMPANIES ACT, 1862, SCH. I. 451 obviates any such question as has arisen under other Acts as to whether Table A. mere subscribers or scrip-holders are liable to calls. The question of who Art. 5. are members is discussed under sect. 23. Where a company brought an action to enforce a call against a transferee of shares, upon bill filed charging that the transfer was fraudulent and void, and that the transferee was not a member, an injunction was granted to stay the action {k). If a transfer of shares has been made and registered after a call has been aft^r transfer made, but before it has become payable, it is conceived, although it is by no " ^°^''^*' means clear, that the transferor and not the transferee is the person liable in an action for the call. A call is owing from the day on which it is made, although it be "payable" on a subsequent day (0- But it will be observed that Art. (6) provides that upon non-payment of the call the holder for the time being of the share shall pay interest, a provision which seems inconsistent with the liability for the principal sum being in the transferor (m). If Art. (10) is properly enforced the difficulty here referred to could not perhaps arise unless it should be held that a member is not " indebted " in respect of a call not yet payable, and cannot therefore be refused registration under that article (n). The writer is not aware of any authority on these points in cases arising under this Act (o). In a company whose articles provided that no transfer should be made until all arrears of calls had been paid, it was held that a transferee by way of mortgage, who had been recognised by the company as a shareholder, could not be compelled to pay calls which were due at the time of the transfer, and that the shares could not in his hands be forfeited for their non-payment (p). Upon an application in the European Arbitration to substitute the name of the transferee for that of the transferor in a case where registration had not been made before the winding-up owing to default on the part of the company, Lord "Westbury made the order subject to the condition that pay- ment of a call, made after the transfer ought to have been registered, should be made within three weeks of the order, for the call bound the transferor as long as his name was on the register, and his right was only to indemnity from the transferee (q). As to shareholders whose shares have been forfeited for non-payment of calls, see Art. (21), and supra, p. 144. As to calls against the estates of deceased shareholders, see the notes to sect. 76, and infra, Art (12). As to bankrupt shareholders, see sect. 75, and notes thereto. (5.) A call shall be deemed to have been made at the time Date of call- when the resolution of the directors authorizing such call vas passed. This disposes of the doubt which was at one time felt, whether a call is to ' (K) Bloxam t. Metropolitan Cah Co., 4 427, is a case in which upon somewhat N..K. 51. similar provisions the transferor was held (J) China Steamship Co., Dawes' Case, liable; and see Aylesbury Railway Co. v. 38 L. J. (Ch.) 512 ; decided on a question Thompson, 2 Railw. Cas. 668 ; but see of liability to a call by a member whose Aylesbury Railway Co. v. Mount, 4 Man. & shares were forfeited before the call was Gr. 651 ; 7 Man. & Gr. 898. payable. (jp) Watson y. Males, 23 Beav. 294. (m) And see s. 70, and note thereto. (?) Bentinok's Case (Eur. Arb.), L. T. (ji) But see note to Art. (10), infra. 99 ; 17 Sol. J. 807 ; cf. Joshua Murgatroyd's (o) North American Colonial Exhibition Case (Eur. Arb.), L. T. 115, 146; 18 Sol V. Bentley, 15 Jur. 187 ; 19 I. J. (Q.B.) J. 28. 2g2 452 THE COMPANIES ACT, 1862, SCH. I. Table A. be taken as made at the date of the resolution, or at the date of the notice of Art. 6. c^'l- The point may sometimes be of importance when a certain interval is '- - — to elapse between two calls, or possibly where questions of liability arise as between transferor and transferee (r) or in questions respecting forfeited shares (s). If a call be made by a prospective resolution, e.g., if a resolution be passed on the 13th of March that a call be made on the 30th of March payable on the 1st of May, gucere, whether the resolution must be treated as of the 30th of March, and the liability to attach on that day (t). In the absence of a definite provision as to t he date at which a call is to be considered as made, the practice of the company will be regarded in ascer- taining the date (u). A resolution for a call must state not only the amount of the call, but also the time at which it is to be paid. If the date for payment be left in blank there is no valid call (a;). Interest on (6.) If the Call payable ia respect of any share is not paid calls m arrear. jjgfQj.g ^^ q^ ^j^g ^^y appointed for payment thereof, the holder for the time being (a) of such share shall be liable to pay interest 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. (a) Note to Art. (4), ad fin. ; and see Art. (8). In E. p. Liatott (y), Malins, V.C., intimated an opinion that the provisions of the articles are not abrogated by the winding-up, and that under a stipu- lation contained in the articles providing for payment of interest on calls in arrear, the amount of the liability of the shareholders and their obUgation to pay interest remains the same after a winding-up order. But in Be Welsh Flannel Co. (z), on reconsidering the point, his Lordship held that provisions in the articles as to interest on calls apply only to directors' calls and not to calls made by the liquidators. Where the articles, after providing for payment of interest, contained a forfeiture clause, providing that forfeiture should extinguish all rights in- cident to the share, but that the shareholder should remain liable to pay calls owing at the time of forfeiture, it was held that interest could not be recovered under the articles upon the arrears of calls due on shares forfeited for non-payment (a). A for.'eiture made consequent upon a notice which claims interest from the date of the call instead of from the day fixed for its payment, is invalid (5). The time fixed for payment of a call should be fixed by a formal resolution of the directors, not by a mere verbal direction to the secretary (5). The Stannaries Act, 1869 (c), provides that in companies falling under that Act discount at 5 per rent, may be allowed for prompt payment, and interest at 5 per cent, charged on arrears of calls. (r) Supra, note to Art. (4), ad fin. («) 20 Eq. 360 ; sec ante, p. 199. (s) Dawes' Case, 38 L. J. (Ch.) 512. (a) Stocken's Case, 5 Eq. 6 ; 3 Ch. 412 ; (t) Sheffield Snilway Co. v. Woodcoch, and see note to Art. (21), in/ra; and as to 7 M. & W. 574. calls in the winding-up, supra, p. 199. («) Addams y. Ferick, 26 Beav. 384, (6) Johnson v. Lyttle's Iron Agency, 5 393. Ch. Div. 687 ; Cawley and Co., 42 Ch. Div. (x) Cawley and Co., 42 Ch. Div. 209. 209. (y) 4 Eq. 184. (c) 32 & 33 Vict. c. 19, s. 12. THE COMPANIES ACT, 1862, SCH. I. 453 ' (7.) The directors may, if they think fit, receive from any Table A. 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 Power to re- fer ; and upon the moneys so paid in advance, or so much thereof advance. 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 pay- ing such sum in advance and the directors agree upon. A power to receive payment of calls in advance is, like the power to make calls (d), a fiduciary power, which the directors are bound to exercise bond fide for the benefit of the company, and if they exercise it for their own interests only, the transaction is liable to be set aside as a fraud upon the power (e). But the directors are not in any way trustees for the creditors, and the creditors cannot complain if this power has been exercised in such manner as in fact to diminish the fund available for payment of the company's debts (/). In the winding up of the company if after payment of debts there are surplus assets for division amongst the shareholders, the amount paid in advance with interest to payment (and not merely to commencement of winding-up) will be repayable before the balance is divided equally among all (ff). Transfers of Shares (a). (8.) The instrument of transfer of any share in the company Tiansfers of shall be executed both by the transferor and transferee, and the ^ "'" '~~ transferor 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 (j3). (o) s. 22, and notes thereto. (/3) Supra, pp. 39, 133. The Act does not, as does the Companies Clauses Act (h), require transfers by deed. to be made by deed, but enacts only (sect. 22) that shares shall be transfer- able " in manner provided by the regulations." This article provides that transfers shall be " executed " both by transferor and transferee, but it is conceived that this need not be by deed sealed and delivered (i). Where, as in companies subject to the Companies Clauses Act, transfers Transfers in are required to be made by deed, a transfer in blank, i.e., a transfer signed blank : — by the transferor leaving a blank for the name of the transferee, is void at law, and is in fact as a deed wholly inoperative (k). And in equity such an instnmient cannot be of any greater validity as a deed, although as an agree- ment constituting in equity a transfer of the ownership, it will give a right to call for a legal transfer (I). (d) Gilbert's Case, 5 Ch. 559. (0 See K p. Sargent, 17 Eq. 273. (e) Sykes' Case, 13 Eq. 255. (A) JSibblewhite v. MoMorine, 6 M. & W. (/) Poole's Case,'^ Ch. Div. 322; cf. 200; Swan v. North British Australasian South London Fishmarket Co., 39 Ch. DW. Co., 7 H. & N. 603 ; 2 H. & C. 175 ; Societe 324. Ginirale t. Walker, 14 Q. B. Dir. 424; 11 (jj) Exchange Drapery Co., 38 Ch. D. App. Cas. 20. 171. (J) Morris x. Carman, 4 P. F. & J. 581. (A) 8 & 9 Vict. c. 16, s. 14. 454 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 8. by way of security. But under the 23rd section of this Act agreement to become a member is the essential requisite for being deemed a member of the company, and, - therefore, where this consent is shewn, the invalidity of the transfer as a deed is of no importance. For the question is not the validity of the instru- ment as a deed, but whether the transferor has agreed to transfer and the transferee to accept the shares purporting to be transferred (m). Accordingly it has been held that where the articles of association do not require a deed, but permit transfers to be made by " instrument in writing," a transfer in blank carries to the person whose name is subsequently filled in as transferee, not only the equitable, but also the legal interest (w) — ^mean- ing, it is conceived, the legal right to call upon the company to register the transfer. For there is no legal title to the shares until registration (o) ; or at any rate until all necessary conditions have been fulfilled to give the trans- feree as between himself and the company a present absolute and uncondi- tional right to have the transfer registered {p). Where under the company's articles a transfer by instrument in writing, without seal, is sufficient, the addition of a seal does not render the instru- ment any the less effectual (j). But if the articles require the transfer to be executed by both transferor and transferee, aemble, a transfer executed by transferor alone does not pass the legal title (g). The transfer in this case bore an indorsement stating that the transferee's title would not be complete nor would the transfer be binding on the company until the transferee was registered, and that in order to procure registration the transferee must sign an acceptance of the shares ; but apart from this, Hall, V.C, held that the legal title did not pass. There is, however, no principle of law that a transferee cannot become a shareholder unless he has signed the transfer, and if he has been registered as a shareholder and has acted as a shareholder he may be liable (r). The common way of giving security upon shares is by depositing with the mortgagee a transfer executed by the mortgagor, and the certificates of the shares. The transfer is commonly in blank as regards the name of the trans- feree and the date of execution. A good equitable security may thus be given upon the shares whether the constitution of the company do (s) or do not {t) require transfers to be by deed, and notice to the company is not necessary to perfect the mortgagee's title for the purpose of preserving priority against subsequent equitable titles (s). The 30th section of the Act precludes the company from receiving notice, so that the principle of Dearie V. Hall (m) as to notice in determining priorities does not apply (s). Where the first equitable mortgagee holds the certificates containing (as is often the case) a note that no transfer will be registered until the certi- ficate is delivered, the notice of a subsequent transferee who has not got the certificates is a fortiori inoperative to give him priority over the earlier transferee who has (s). Sargent, 17 Eq. 273, was under seal. ((•) Cuninghame v. Glasgow Bank, 4 App. Cas. 607 ; cf. Taurine Co., 25 Ch. Div. 118. (s) Societe Generate v. Walker, 11 App. Cas. 20 ; Colonial Bank v. Whinney, 11 App. Cas. 426. As to ]" certification of transfer," i.e. certificate given by the com- pany to a purchaser that his vendor's cer- tificates have been lodged, soe Bishop v. Balkis Co., 25 Q. B. D. 77 ; W. N. 1890, 160. (0 France v. Clark, 22 Ch. D. 830 ; 26 Ch. Div. 257. («) 3 Russ. 1. (m) Langer's Case, 37 L. J. (Ch.) 292 ; 18 L. T. 67. (ra) JS. p. Sargent, 17 Eq. 273 ; Bavies' Case, 33 L. T. 834, affirmed on appeal ; see 38 L. T. 147. (o) Societd Gdneralc v. Walker, 11 App. Cas. 20, 28 ; Nanncy v. Morgan, 35 Ch. D. 598. (p) Nanney y. Morgan, 37 Ch. Div, 346 ; Roots V. Williamson, 38 Ch. D. 485. (q) Ortigosa v. Brown, Sanson, ^ Co., 38 L. T. 145, where Hall, V.C, said he had ascertained that tho instrument in E. p. THE COMPANIES ACT, 1862, SCH. I. 455 And upon the question of " order and disposition " under sect, ii (iii.) of the Table A. Bankruptcy Act, 1883, shares whose certificates bear such a note are not in Art. 8. the order or disposition of the registered holder so that he is reputed owner, when the certificates have been deposited with a mortgagee (x). The holder of a blank transfer as security may be, and probably is, entitled to fill in his own name and register the transfer, holding then of course the legal title to the shares as security, and he is entitled, no doubt, to transfer his security and to fill in the name of the purchaser of the security and register the shares in such purchaser's name, he holding similarly the legal title as security. But he is not entitled to sell the shares themselves, and procure their registration in the name of the purchaser as owner as distin- guished from mortgagee (y). And if he do purport to sell the shares, but the documents which he hands to the purchaser to complete the sale include the transfer, still in blank, and the purchaser fills it up, he can only take such interest as his vendor had, and cannot rely on the doctrine of purchaser for value without notice. For the fact that the instrument is in blank affects him with notice (z). But if the holder of the blank transfer, acting no doubt beyond his authority, fills up the blank transfer with the name of a transferee, and the transfer is registered, the transferor is estopped from objecting to the legal title thus acquired, and the land fide transferee can hold the shares pro- vided he be purchaser for value without notice (a) ; but not if, as the House of Lords held, he was put upon inquiry as to the holder's authority (J). Irregularities of various kinds in the instrument of transfer may be wholly other in-cgu- unimportant. larities. Thus, where a transfer was executed by P. to company 0. of shares in company B., and the intention of both parties was that P. should transfer and company C. accept all the shares which P. held ; and at the time when P. executed the transfer, and handed it to his agent, it contained no description of the shares ; and 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 in- serted ; and the seal of the C. company was then affixed to it, and subsequently the denoting numbers and the date of transfer were filled in ; this was held to be a good transfer (c). So, the fact of a transfer to a company not having been accepted by the company under its seal has been held to be immaterial (d). Again, where L. execated to W. a transfer of shares, and the transfer was registered as of the 23rd of August, and it appeared that L. was not at that time the registered holder of any shares, but held transfers to himself of a corresponding number of shares, which last-mentioned transfers appeared from the books to have been sent in to the company's oflSce on the 5th of September, but were registered as on the 30th of August, it was held that the errors and irregularities in the registration did not affect the validity of the transfer to W. (e). {x) Colonial Bank v. Whinney, 11 App. (&) S. C. sub nom. Sheffield v. London Cas. 426. Joint Stock Bank, 13 App. Cas. 333. See (j/) FraTicev. Clark, 22 Ch. D. 830; 26 also the cases collected, ante, p. 363, note (g). Ch. Div. 257. (o) E. p. Contract Corporation, 3 Ch. («) France v. Clark, 22 Ch. D. 830 ; 26 105. Ch. Div. 257. And see Williams t. Colonial (d) Eoyal Bank of India's Case, 7 Eq. Bank, 36 Ch. D. 659; 38 Ch. Div. 388; 91; 4 Ch. 252. Colonial Bank v. Cody, 15 App. Cas. 267. (e) Weikersheim's Case, 8 Ch. 831,[|837, (a) Eastcn T. London Joint Stock Bank, 839. 34 Ch. Div. 95. 456 THE COMPANIES ACT, 1862, SOH. I. Table A. Art. 8. Denoting numbers of shares. Shares in joint- stock banking companies. Moreover, although the articles or deed of Bettlement of a company may require certain formalities in respect of transfers, yet if the company have regularly adopted a course of dealing not in pursuance with those formalities, transfers executed and passed in accordance with such usage, although in- valid at law, may not afterwards be capable of being impeached in equity (/). And where a transfer through non-observance of formalities has been irregularly, though not invalidly, made, lapse of time, coupled with recogni- tion of the transferee as a shareholder, may render the transfer incapable of being impeached (g). Thus, where the articles require transfers to be executed by the transferees, a transfer which has not been so executed but has been received and acted upon cannot be impeached (h). But the contrary is not necessarily the case, viz., that where the usage has been to require formalities in excess of the stipulations of the articles, a transfer not executed with such formalities will be invalid. Thus, where it had been the practice of the company to require transfer by deed, a transfer in blank was nevertheless held to convey the legal interest (i) ; although in an earlier case, in a company whose articles excluded Table A., and did not define any formalities for transfer, the directors were held justified in refusing to register a transfer not executed by the transferee (A;). But, since the validity of a transfer depends upon the agreement to transfer and to accept the shares purporting to be transferred, it follows that if the transfer be filled up with shares which the transferor did not agree to transfer (l), or with shares which the transferee did not agree to accept (to), or is a forgery (n), such transfer is a nullity. But, where an agreement is shewn, an error in the distinguishing numbers of the shares is immaterial. Tor the numbers are simply directory for the purpose of enabling the title of particular persons to be traced. One share, being an incorporeal right to a certain portion of the profits of the company, is the same as another. If, therefore, a transferor has the number of shares which he professes to transfer, or a larger number, and by mistake the wrong distinguishing numbers are put in the transfer (o), or the numbers are not inserted till after execution (p), that will not prevent the number of shares purported to be transferred from passing to the transferee (j). A person may be a shareholder who does not hold any numbered shares at all (r). By 30 Vict. c. 29, s. 1 (v. infra), contracts for the sale and purchase of shares, stock, or other interest in any joint-stock banking company are void, unless the numbers by which such shares, &c., are distinguished are set forth in the contract. (/) Shortridge v. Bosanquet, 16 Beav. 84 ; Bargate v. Shortridge, 5 H. L. C. 297 (but see this case questioned by Lord Westbury in Bead's Case, L. T. (Eur. Arb.) 10, 13) ; Straff on' s Executors' Case, 1 D. M. & G. 576 ; Frere's Case (Alb. Arb.), 15 Sol. J. 674. But in respect of a due observance of formalities a director is more strictly treated ; E. p. Brown, 19 Beav. 97 ; E. p. Henderson, Ibid. 107 ; v. supra, p. 27. (3) Bush's Case, 6 Ch. 246 ; affirmed sub nam. Murray v.Bush, L. R. 6 H. L. 37, where, however, the Lords were equally divided ; Hughes' Case, 15 W. R. 476; 15 L. T. 526. (/i) Taurine Co., 25 Ch. Div. 118. (>) E. p. Sargent, 17 Eq. 273. (k) Marino's Case, 2 Ch. 596. (l) Taylor v. Great Indian Beninsula Bailway Co., 4 De G. & J. 559 ; and see Johnston v. Benton, 9 Eq. 181. (m) Blakely Ordnance Co., Bailey's Case, W. N. 1869, 196. (n) Barton v. North Staffs. Bailway Co., 38 Ch. D. 458. (o) Ind's Case, 7 Ch. 485 ;*c/. Binkett v. Wright, 2 Hare, 120, where the shares were not numbered. (p) Bishop's Case, 7 Ch. 296, n. ; and see E. p. Contract Corporation, 3 Ch. 105. (?) And see as to the number of shares, East Gloucestershire Bailway Co. v. Bartho- lomew, L. K. 3 Ex. 15. (r) Bortal v. Emmens, 1 C. P. D. 201, 211 ; 1 C. P. Div. 664. THE COMPANIES ACT, 1862, SCH. I. 457 ' The Act contains nothing which totidem verbis forbids shares to be made Table A. transferable by delivery, but such shares are clearly contrary to the spirit Art, 8. of the Act (s), and this is rendered still more clear by the Companies Act, ■ 1867 (<), which for the first time gives power to issue share warrants to ^^*°.s™'s^J' bearer, transferable by delivery, and that only in the case of fully paid-up shares. Except as issued under the provisions of that Act, there can be little doubt, although it has never been absolutely decided, that shares transferable by delivery are illegal (m). Companies whose articles have allowed the issue of such shares are, however, none the less liable to be wound up, at any rate if there be also shares not so transferable (x), and a winding-up order has even been made upon the petition of a scrip-holder («/). As respects the persons liable in respect of such shares, this must in each case depend upon the effect of the provisions of the articles. If these are such as to constitute the original allottee of the scrip or warrant a member of the company, then, as between himself and the company, such allottee would probably be held liable as a contributory ; and a transfer by delivery would merely create an equitable contract upon which, as between trans- feror and transferee, the former might claim an indemnity from the latter in respect of calls which the transferor had, as contributory, been called iipon to pay (z). But, on the other hand, the effect of the articles may be such as to give the allotted of scrip merely a right to become, in certain events, a shareholder ; and, if such events have not taken place, it may be that no person is liable in respect of shares which have not in fact ever been allotted (a). It is submitted (V) that the creation of such shares would not be illegal in such sense as to deprive the transferor by delivery of his remedy over against his transferee ; for the meaning of the articles may be merely this, that the company will accept the bearer of the scrip certificate as a shareholder, if the allottee comes in and duly executes a transfer ; but until that is done the allottee remains a member, and is liable (c). Transfers may in certain cases be executed by persons who are not by non- members of the company, but who have by devolution become entitled to members : — shares (d). Sect. 178 reserves to a company registered under the Joint Stock Companies in existing Acts (e) the power of transferring its shares in manner before in use. companies. The mere execution of a transfer does not pass the title to the shares. Successive After a transfer has been executed to A. but not registered, a subsequent transfers of transfer to B. may be effectual, and if registered may pass the shares to B., although if A. was a purchaser for value he no doubt could restrain the registration of the transfer to B. (/). (s) See ss. 22, 23, 25, 26. («) See the cases last cited, 5 Ch. p. 379 ; (0 s. 27, et seq. L. K. 5 H. L. 201 ; Gregg's Case, 15 W. R. (u) See General Co. for ProTrwtion of 82 ; McEuen v. West London Wharves Co., Zand Credit, 5 Ch. 863, affirmed s«4 nom. 6 Cli. 655, 662. Princess of Seuss v. Bos, L. E. 5 H. L. 176. (a) Ormerod's Case, 5 Eq. 110 ; Eustace In companies subject to the Companies v. Dublin Trunk Railway Co., 6 Eq. 182 ; Clauses Act, such shares are certainly E. p. Collum, 9 Eq. 236. illegal : McEuen, v. West London Wharves (b) See, however, 5 Ch. 377. Co., 6 Ch. 655. (c) McEuen v. West London Wharves (x) General Co. for Promotion of Land Co., 6 Ch. 655, 662 ; of. Morton's Case, 16 Credit, 5 Ch. 363 ; L. R. 5 H. L. 176 ; and Eq. 104 ; ante, p. 69. see Grisewood's Case, 4 De G. & J. 544. (d) s. 24, Arts. (13)— (16). (y) Littlehampton Steamship Co.,3i Beav. (e) s. 175. 256 ; 2 D. J. & S. 521 ; et v. supra, pp. 198, (/) Nanney y. Morgan, 37 Ch. Div. 346, 231. 354. 458 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 9. stamps on transfers. Dividend as between transferor and transferee. Form of transfer. Transfer by indebted member. Transfers must be stamped with an ad valorem stamp according to the table in the Stamp Act, 1870, 33 & 34 Vict. c. 97 (g), and in the case of sub- purchases the duty is to be paid upon the consideration for the sale by the original purchaser to the sub-purchaser (Ji). A joint transfer by several shareholders of shares to which they are separately entitled, may be stamped with an ad valorem stamp on the total amount of the consideration («'). A contract for the sale and purchase of shares was held under the statute 55 Geo. 3, c. 184, to require an agreement stamp, shares not being " goods, wares, or merchandise," within the exception of the Sch. pt. 1, " Agree- ment " (k). But by the Stamp Act, 1870 (I), a contract note requires only a penny stamp. Where a consideration consists of shares, the ad valorem duty is to be paid on the value of the shares (m), calculated at the average price on the day of the date of the instrument (n). A sale of shares made without any special condition as to dividend carries to the purchaser any dividend which is so to say m gremio the share at the date of the sale, although payable in respect of a period anterior to that date. Thus, where sale was made on the 1st of August and on the 28th of August a dividend was declared for the period ending the 30th of June, this dividend belonged to the purchaser (o). See further, as to transfers, the notes to sect. 22, supra. (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 C. D. of do hereby transfer to the said G. D. the share [or shares] numbered standing in my name in the books of the company, to hold unto the said C. D., 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 G. D. do hereby agree to take the said share [or shares] subject to the same conditions. As witness our hands the day of A question upon which there is at present little authority is how far the transferee steps into the shoes of his transferor so as to be bound by all acts {e.g. of acquiescence) of his transferor. The transferee gets upon registration a legal title and the question is not one of equities. The point was raised and not decided in Ashhury v. Watson {p). (10.) The company may decline to register any transfer of shares made by a member who is indebted to them. To escape a difficulty which will be found discussed under sect. 70 and Art. (4), there should be added to this article a clause providing that, for the piu-posos of this article, a member shall be deemed indebted in respect of a (,7) See the Soh., sub-tit. " Conveyance." (A) Stamp Act, 1870, s. 74 (3). (i) Wills V. Bridge, 4 Ex. 193. (/<) Knight V. Barber, 16 M. & W. 66 ; see Stamp Act, 1870, Sch. " Agreement (3)." (0 s. 69, and Sch. « Contract-note." (m) Stamp Act, 1870, s. 71. («) Ibid. s. 12. (o) Black V. Homersham, 4 Exc. D. 24. (p) 30 Ch. Div. 376. THE COMPANIES ACT, 1862, SOH. I. 459 call made but not yet payable : to meet the decision in Sentham Mills Co. (q), Table A. mentioned presently, there should be added proTisions to render the article j^, 10. applicable to persons claiming by transmission : and to give the company a right to enforce their lien against the shares themselves there should be added provisions giving an actual lien on the shares and a right to sell them. Except as curtailed by any provision in the articles, the shareholder's right is to transfer his shares when and to whom he pleases (r). The Act does not contain any section corresponding to sect. 16 of the Companies Clauses Act (8 & 9 Vict. c. 16), disentitling a shareholder to transfer shares on which calls are in arrear. In the absence, therefore, of such an article as this, a transfer could not be refused on the ground of calls unpaid But under this article the company is more amply protected than under the Companies Clauses Act, for under this provision a shareholder indebted to the company on any account whatever, whether for calls or otherwise, will be disentitled to transfer any of his shares (s). The Stannaries Act, 1869 (f), provides that a company subject to that Act shall not be bound to recognise a transfer of a share until all calls made have been paid, but limits it to the particular share in respect of which the holder is in default. This article and Art. (75) give the company a passive lien as regards the Company's shares themselves, and as regards the dividends an active lien to retain and m^^,"".^^'^ apply them towards satisfaction of the shareholder's debt. " Indebted " means " indebted on any account " and not " indebted in Meaning of respect of the share proposed to be transferred " («) ; it also means " indebted " indebted." whether solely or jointly and severally with others " (x). The lien extends to any amount in respect of which the shareholder is indebted to the com- pany and not merely to debts in respect of calls, still less of calls on the particular share on which the lien is asserted (u), and extends to debts in which the shareholder is jointly and severally indebted with others, and not merely to debts in which he is solely indebted (x). It is conceived that a member is " indebted" in respect of a call as soon as the resolution is passed, and before it becomes payable (y). This is a question which has arisen under former Acts, but upon clauses whose wording has been in each case different from the present. The Companies Clauses Act (8 & 9 Vict. c. 16, s. 16) disentitles a shareholder from trans- ferring until he have paid "all calls for the time being due," while the repealed statute 7 & 8 Vict. c. 110, s. 54, had the words " full amount due and payable," upon which Jast words it was held that a transfer made when a call was diie but not yet payable was valid (z). The " indebtedness " must be determined by the state of things existing at the time that the deed of transfer is presented for registration. Upon payment of the amount of such indebtedness the member is entitled to registration, although subsequently to the presentation of the transfer another call may have been made (a). If a bill be taken for a debt, the original debt, in the absence of special circumstances, remains, but the remedy is suspended till the instrument (g) 11 Ch. Div. 900. (y) Supra, Art. (5) ; Dawes' Case, 38 (r) V. supra, p. 26. L. J. (Ch.) 512. (s) K p. Strihger, 9 Q. B. Div. 436. («) Orpen's Case, 9 Jur. (N.S.) 615 ; and Contrast under the Companies Clauses see il. p. Hatton, 8 Jur. (N.S.) 380 ; 31 Act : Hvhhersly v. Manchester Eailway Co., L. J. (Ch.) 340 ; and the cases cited supra, L. R. 2 Q. B. 59, 471. p. 451, note (o) ; see also Art. 47, n. (0 32 & 33 Vict. c. 19, s. 14. (a) Gawley If Co., 42 Ch. Div. 209 ; («) E.p. Stringer, 9 Q. B. Div. 436. Reg. v. Inns of Court HoUl Co., 11 W. R. {x) Sentham Mills Co., 11 Ch. D. 900. 806 ; 2 N. R. 397 ; 8 L. T. 551. 460 THE COMPANIES ACT, 1862, SCH. I. Table A. has attained maturity. The obligation therefore on a bill not yet due is an Art. 10. indebtedness which will justify a company in refusing to register a transfer (b). Thus a banking company having under its articles a lien upon the shares of any shareholder " for all moneys due to the company from him " held bills of a shareholder for a debt due to the bank. 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 lien on the shares, though the remedy for recovering the amount was postponed, and that therefore the lien of the bank had priority over a charge created on the shares by the shareholder before the bills arrived at maturity (b). But upon articles which provided that the company should have a lien for money " due," and that the company might decline to register a transfer by a member who was "indebted," Jessel, M.E., held that "due" by virtue of the context meant "due and payable," and that "indebted" meant "indebted in money due," and that the company could not refuse to register a transfer on the ground that they were indorsees and holders of a current acceptance of the transferor (c). Article is not The power given by the article is permissive only, and, if the company do imperative. jjgt refuse registration, the transfer will of course not be invalid. This has been held even under the Companies Clauses Act, s. 16, which is much more stringent, and provides that a shareholder in arrear " shall not be entitled " to transfer (d). For such a provision is for the protection of the company, and is capable of being waived by the company. But if a transfer be passed by mistake, and the mistake be corrected within a reasonable time, this may invalidate the transfer (e). Transmission. A person entitled by transmission (e.g., a trustee in bankruptcy) may under Art. (13) be registered at his option as a member, and to such a registration Art. (10) does not apply. Transmission and transfer are distinct. Thus if A. being indebted to the company become bankrupt, his trustee B. may elect to be registered, and the company cannot refuse (/). The result may be that B., as a member not indebted to the company, wiU be able to sell the shares, and the company's lien will be defeated altogether. This is a result against which provision should be made by proper regulations in the articles. A. mortgaged his shares to B. and executed transfers of which B. on the 30th Oct. gave notice to the company, and which he on the 7th Nov. sent in for registration. On the 12th Nov. A. filed a liquidation petition, and on the 29th Nov. a trustee was appointed. A. was indebted to the company. The trustee moved for rectification by substituting his name for the name of A. on the register. B. consented to the motion, but did not waive his security. Bacon, V.O., made the order (g), the result of which might have been that the company's lien would have been defeated, and A.'s trustee and B. might have divided the shares. The Court of Appeal reversed this (A), holding (1) that if B. had opposed the motion the order could not have been made, for as between A.'s trustee and B. the shares (to the extent of the mortgage) be- longed to B. ; and (2) that B.'s consent made no difference, for that an article similar to Table A., Art. (14), relates only to such title as the trustee has under the Bankruptcy Act, and does not enable a prior transferee and such trustee to combine their titles so as to defeat the company's lien (i). (6) London, Birmingham, if c, Bank, 34 Bear. 332; 13 W. R. 446; 12 L. T. 45. (c) Stockton Iron Co., 2 Ch. D. 101. (d) Iloylahe Railway Co., E. p. Littledale, 9 Oh. 257. (e) Anderson's Case, 8 Eq. 509. (/) Bentham Mills Co., 11 Ch. Div. 900. (3) Cannock and Rugeley Colliery Co., E. p. Harrison, 26 Ch. D. 522. (A) 26 Ch. Div. 363. (i) Contrast Artistic Colour Co., E. p. Fourdrinier, 21 Ch. Div. 510. And cf. New THE COMPANIES ACT, 1862, SCH. I. 461 If the articles provide that the company shall have a lien and charge on Table A. the shares of a shareholder for all moneys owing from him to the company, Art. 11. the charge may he enforced against shares of which he is the registered ^ holder, notwithstanding that he is only trustee for others (k). In the case shares. referred to the deht was a trade debt of a firm of which one of two trustees ■was a member, and was incurred long after the investment ; the shares were registered in the names of trustees of a marriage settlement of whom the debtor was one, and were held by them upon the usual trusts of a marriage settlement. The equitable right of the company in respect of the charge ■was held to be paramount over the equity of the cestuis que trust under the settlement, because the investment of the trust funds was made upon a security on which there attached at the date of the investment the right of lien given by the articles. On the other hand the company has no lien on the shares for the debt of the cestui que trust (I). Where the articles expressly provide for a lien it is not a mere passive Lien enforce- right of retainer, but amounts to an equitable charge on the shares (m). ^ *^^- (11.) The transfer books shall be closed during the fourteen Closing trans- days immediately preceding the ordinary general meeting in each °' °° '" year (a). (o) s. 49. Transmission of Shares. (12.) The executors or administrators of a deceased member Shares devoiv- sball be the only persons recognised by the company as having ""^ ^ any title to his share. A member of a joint stock company is not in the legal sense of the word a partner with his co-members, and his death does not therefore, as in an ordinary partnership, operate as a dissolution of his connection with the company. Until something is done to transfer the interest, the dead share- holder — that is, his estate — remains a member, and his representatives are, on the one hand, entitled to receive dividends, and on the other are, in their representative capacity, liable for calls. As between the deceased shareholder and the company (n), the estate of the deceased shareholder is liable to the same extent as the shareholder himself would have been liable if living. Out of his estate must be paid, of course, calls made in his life- time, and also calls made after his death, so long as the shares are left in his name, and as respects the latter the liability is not confined to obligations incurred before his death (o). aty CM Co., 34 Ch. Div. 646 ; Willmott legatees of shares must pay calls made V. London Celluloid Co., 31 Ch. D. 425 ; after, while the residuary estate must pay 34 Ch. Div. 147. calls made before, the testator's death : (4) New London and Brazilian Bank v. Addams v. Ferici, 26 Beav. 384, 393 ; and Brocklebank, 21 Ch. Dir. 302. But qucere see Armstrong t. Burnet, 20 Bear. 424. this case if the company had notice of the (o) Baird's Case, 5 Ch. 725 ; Blakeley's trust : Bradford Co. v. Briggs, 12 App. Cas. Case, 13 Beav. 133 ; 3 Mac. & G. 726 ; E. 29, overruling, it is conceived. Miles v. p. Gouthwaite, 3 Mac. & G. 187 ; Seward New Zealand Co., 32 Ch. Div. 266. v. Wheatley, 3 D. M. & G. 628 ; Soulds- (l) Mexican Mining Co., Se Perkins, worth v. Evans, L R. 3 H. L. 263, 283. As 24 Q. B. Div. 612. to joint tenants of shares, see Kirby's Exe- (m) Se Lewis, 6 Ch. 818. cutors' Case (Alb. Arb.), 15 Sol. J. 922; (») As between the parties beneficially Hill's Case, 20 Eq. 585, cited supra, p. 206. interested in the shareholder's estate specific 462 THE COMPANIES ACT, 1862, SCH. I. Table A. To escape the disadTantage under which the company is thus placed Art. 13. in haying for holders of its shares merely representatire memhers, whose liability is limited by the amount of the assets of their testator, provisions have been commonly introduced into deeds of settlement putting upon executors a pressure either to transfer their testator's shares, or to become in their own persons proprietors in respect of them, by attaching the penalty of forfeiture to a neglect to do either one or the other within a limited time. But until the executors either personally accept or validly dispose of (p) the shares, or until the forfeiture is declared, the estate of the deceased shareholder remains liable (j), and upon a deficiency of the personal estate, the real estate may in the hands of devisees be rendered liable in equity to the payment of calls (r). In respect of their testator's estate executors may be placed on the list of contributories (s), and if they make default in payment of calls the personal and real estates may be administered (<). As respects the real estate, the heirs and devisees need not be placed on the Ust unless the Court thinks fit (u). If the executors personally accept the shares, then as between themselves and the company at any rate they become the persons liable (x), but under this Act they can execute a transfer without incurring any such liability (y) ; and the efiect of this and the three following articles appears to be that in the first instance the executors or administrators take the place of the deceased member, both as respects profits and as respects liability (so far as the estate is sufiicient), and so continue until they either, under Art. (13), elect to be registered, from which time they will become personally liable, or execute a transfer under Arts. (14) — (16), which may be either to a purchaser or to a legatee, or person otherwise beneficially entitled. Before shares can be transferred into the name of an executor so as to render him personally liable, there must be shewn a distinct and intelligent request by him that the shares should be dealt with in that way. The executor bears a representative character, and if he simply sends the probate in to be noted, as that his title may be recorded and recognised, this may be done without making him personally liable (z). Persons en- (13.) Any person becoming entitled to a share in consequence baihuptcyf OT of *e death (a), bankruptcy {(5), or insolvency of any member, or marriage. in consequence of the marriage of any female member (j), may be registered as a member upon such evidence being produced as may from time to time be required by the company. («) s. 76. (j8) s. 75, 77. (y) s. 78. (14.) Any person who has become entitled to a share in conse- quence of the death, bankruptcy, or insolvency of any member, or (p) Lancey's Case (Eur. Arb.), Reil. 12 ; (s) ». 76, and note thereto. L. T. 15 ; 17 Sol. J. 8 ; Suchan's Case, i (i) s. 105. App. Cas. 549 ; assent to a bequest of the («) s. 99. shares is not sufficient unless the company (a;) v. sup>-a, p. 77. liave nccopted the legatee as shareholder: (y) s. 24. But under the Comp. Clauses Keene's Executors' Case, 3 D. M. & G. 272. Act they cannot : Barton v. L. 4- N. W. (5) Heward v. Wieatley, 3 D. M. & G. Railway Co., 24 Q. B. Div. 77. •528. («) Buchan's Case, 4 App. Cas. 549, (r) Turquand v. KMy, 4 Eq. 123 ; ffa- 588, 589, 594. nier's Devisees' Case, 2 D. M. & G. 366. THE COMPANIES ACT, 1862, SCH. I. 463 in consequence of the marriage of any female member, may, Table A. 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. One of two executors cannot make a valid transfer of shares in a company Executors, subject to the provisions of the Comp. Clauses Act, 1845, which are registered in the names of both (a). The Bankruptcy Act, 1869, s. 22 (Bankruptcy Act, 1883, s. 50 (3) ), vests Bankruptcy, in the trustee in bankruptcy full power of transferring the bankrupt's shares. Upon the bankruptcy of a member the trustee may either sell and transfer the shares under that section and these articles, or if the shares are onerous may disclaim them (h). The effect of such disclaimer will, under the Bank- ruptcy Act, 1869, be that the shares will be deemed to be forfeited from that date. Calls made before the bankruptcy, the liability to future calls where the winding-up is in point of date prior to the bankruptcy, and quaere under the Bankruptcy Act, 1869, s. 31 (Bankruptcy Act, 1883, s. 37), the liability to future calls whether this be or not the case, are proveable under the bankruptcy (c). If this be so it would appear to follow that the bankrupt's order of discharge is a bar to any claim against him for calls (d) whether the trustee disclaims the shares or not (e). (16.) The instrument of transfer shall be presented to the com- Eridence of pany, accompanied with such evidence as the directors may re- ^ °' quire to prove the title of the transferor, and thereupon the company shall register the transferee as a member. Under this article a company is entitled, before registering a transfer of the shares or any of the shares included in a certificate, to demand that the certificate shall be left at the oflce for the inspection of the board, and is not bound to be satisfied with the bare production of it to a clerk (/). Forfeiture of Shares (a). (17.) If any member fails to pay any call on the day appointed Forfeiture of for payment thereof, the directors may at any time thereafter ^ *'*^' during such time as the call remains unpaid, serve a notice (j3) on him, requiring him to pay such call, together with interest (y) and any expenses that may have accrued by reason of such non- payment. (o) stannaries Act, 1869 (32 & 33 Vict. (j8) Arts. (95)-(97). c. 19), ss. 16-20, as to companies in the (7) Supra, Art. (6). Stannaries. (a) Barton r. North Staffs. Railway Co., (d) See Brown's Case (Eur. Arb.), Eeil. 38 Ch. D. 458 ; Barton t. L. #. N. W. 32 ; L. T. 21 ; 17 Sol. J. 310 ; and supra. Railway Co., 24 Q. B. Div. 77. p. 202, as to liability to costs of winding-up. (6) Bankruptcy Act, 1869, s. 23 ; Bank- (e) See further, supra, p. 199, et seq. ruptcy Act, 1883, s. 55. (/) Uast Wheal Martha Mining Co., 33 (c) Supra, s. 75, and see note thereto. Beav. 119 ; 2 N. E. 543. 464 THE COMPANIES ACT, 1862, SOH. I. Table A. (18.) The notice shall name a further day on or before which ^^- ^8- such call, 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 wliich 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 complied with, any share in respect of which such notice has been given may at any time thereafter, before payment of all calls, interest, and expenses due in respect thereof has been made, be forfeited, by a resolution of the directors to that eifect. Powers of Provisions in the articles conferring upon the directors under particular forfeiture, circumstances the power of forfeiting shares are usual, and, if duly and ' bond fide called into operation, perfectly legal. And although provisions for the cancellation of shares are not so usual, the same will hold good with respect to such provisions if they are contained in the articles (g). So also a power given to the directors by the articles to accept from any shareholder the surrender and forfeiture of his shares is a good power (h). The question of the validity of powers of surrender is discussed under Comp. Act, 1867, s. 9. But, semhle, such a power will be construed strictly, and its effect may be merely, when a forfeiture has been incurred, to allow it to be carried into effect where a member is willing, without going through all the formalities; not to give validity to forfeitures collusively arranged between the directors and a shareholder (i). In cost-book mining companies in the Stannaries, however, shareholders may relinquish their shares by giving notice in writing to the purser (Jc). The custom is that the shareholder may relinquish on payment of what is due from him to the company (J), but it is competent to prove in a particular company a right to relinquish without discharging arrears (m). Under the Stannaries Act, 1887, s. 22, a relinquishment has no effect if delivered within six weeks immediately preceding the day on which a resolution to wind up the company is legally passed, or on which a winding-up order is made. iDvalid, except A shareholder can only cease to be a shareholder in manner authorized by as authorized the Act, and by the regulations of the company ; and, if the articles do not articles :— authorize the forfeiture of shares, neither the directors, nor the company in general meeting, can make a valid declaration of forfeiture (n). The directors can only bind the shareholders by acts coming within the scope of the authority delegated to them by the regulations of the company, and except as authorized by the regulations, and strictly for the purposes (g) Marshall v. Qlamorgan Iron and Coal Palmer, 7 Ch. 286 ; Frank Mills Mining Co., 7 Eq. 129, 136 ; and see Wright's Case, Co., 23 Ch. Div. 52 ; see ante, p. 352. 12 Eq. 336, n. (m) Bodmin United Mines, 23 Beav. 370. (/i) Snell's Case, 5 Ch. 22. (n) Barton's Case, 4 Drew. 535 ; 4 De (0 Hall's Case, 5 Ch. 707. G. & J. 46 ; Clarke v. Bart, 6 H. L. C. (A) 32 & 33 Vict. c. 19, ss. 21-23. 633 ; Fletcher's Case, 37 L. J. (Ch.) 49 ; 16 (0 Prosper United Mining Co., E. p. W. R. 75 ; 17 L. T. 136. THE COMPANIES ACT, 1862, SCH. I. 465 contemplated by tte regulations, the releasing of shareholders from their Table A. liability is not within their power (o). Art. 19. Where a power of forfeiture exists, it is to be treated as strictissimi juris (p). A very little inaccuracy in complying with the conditions pre- cedent to a forfeiture, is as against the company as fatal as the greatest (q). For if the company rely upon the forfeiture as valid, they must shew that all conditions precedent have been complied with ; except that if the share- holder lie by for more than six years he may be precluded from asserting a claim (r). But if it is the shareholder who relies upon it as against the company, who seek to say that it is invalid, this is another matter (s). Where the articles do not contain a power of forfeiture or surrender, it is or by the competent to the company by special resolution to vary its articles so as to articles as acquire such power, provided the resolution be passed honestly and bond fide, -'fj.^,,. with a view to the benefit of the company, and not with a view to enabling lution. shareholders to escape liability, nor with any other fraudulent or improper intent (i). And, therefore, where there were in a company two classes of shares, viz. X. shares of £10 each fully paid up, and A. shares of £10 each with £2 10s. paid, and special resolutions were duly passed that both the X. and the A. shares should be cancelled, and in lieu of each X. share should be issued two new £10 shares with £5 each paid, and in lieu of every two A. shares, one new £10 share with £5 paid, it was held that a holder of A. shares who had accepted in lieu of them new shares, and subsequently transferred his new shares, could not in the winding-up be made a contributory in respect of his A. shares, for that they had been validly surrendered (0- A company cannot, by resolutions of this kind, compel dissentient share- holders to convert their shares, but if the resolution be adopted and acted on, then it does not lie in the mouth of either the company or the assenting shareholder to say that the transaction is invalid (u). So where, in a company of very irregular constitution, and whose shares were transferable by delivery of the certificates, resolutions were passed at a general meeting providing that the capital should be increased, and that within a limited time the shareholders should bring in their certificates to be registered, or that in default their shares should be forfeited (there being in the deed of settlement a power of altering the existing regulations), the shares of members who did not send in their certificates were, in the winding- up of the company two years afterwards, held to have been effectually for- feited. For the resolutions were within the scheme and constitution of the company, and the company could not subsequently seek to put on the list of contributories members whom they had agreed to drop, and who had con- sented to be dropped, out of the concern (a;). There is a common form article very generally used, which authorizes the Forfeiture for forfeiture of the shares of a member who sues the company or the directors ; si>°g tl>e com- it is invalid (y). pany:— Eules in restraint of trade are, under the Trade Union Act, 1871, not for breach of rules in (o) Stanhope's Case, ICh. 161, 169; and (0 Teasdale's Case, 9 Ch. 54; but it ™=t™"' °f the cases in the Agriculturists' Cattle In- should be observed that the effect of the *''*"^' surance Co., passim, t. infra; Manisty's resolutions was to increase the available Case (Eur. Arb.), L. T. 87. capital of the company. (js) Clarke v. Mart, 6 H. L. C. 633. («) Campbell's Case, 9 Ch. 1 ; Teasdale's (q) Johnson v. Zyttle's Iron Agency, 5 Case, Ibid. 54-. Ch. Div. 687; Garden Gully Co. v. McIAster, (x) Kelk's Case, Pahlen's Case, 9 Eq. 107. 1 App. Oas. 39, 55. (y) Hope v. International Financial Soc., (r) B\de v. Jewell, 18 Ch. D. 660. 4 Ch. Div. 327 (s) See infra, p. 475. 2h 466 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 19. Injunction against for- feiture. Stannaries Act, Forfeiture may be ren- dered valid by acquiescence. Agriculturists' Cattle Insur- ance Co. illegal. A forfeiture or expulsion for breach of such rules is therefore valid (z). A forfeiture which is invalid (a), or oppressive (6), may be restrained by injunction. Under the Stannaries Act, 1869, shares in mining companies subject to the jurisdiction of the Stannaries Court can be forfeited for non-payment of calls (c). Moreover, although an arrangement between a shareholder and directors, involving a forfeiture of shares, may have been ultra vires the directors, as being unauthorized by the articles, such an arrangement may nevertheless be made good if it be shewn that every individual shareholder had knowledge of and acquiesced in the transaction {d) ; and where the articles of associa- tion provided that " no agreement entered into by the directors ... to which the assent of the company in general meeting shall be given, shall be after- wards impeached ... by reason that the same is not within . . - "the business and objects of the company," but contained no power to cancel shares, a contract entered into by the directors with a shareholder, and assented to by the company in general meeting, that the directors would forthwith cancel his shares, was valid : — for by the terms of the articles it was unimpeachable, and was to be taken as acquiesced in by every member of the company (e). The leading cases on the subject of forfeiture of shares are those in the Agriculturists' Cattle Insurance Co. (/), and for their convenient and in- telligible collocation some short account of the history of the company will be necessary. The company, which was formed in the year 1845, was in 1848 in considerable difficulty, and there being a considerable division of opinion among the shareholders as to whether it would be the more prudent course to carry on or to wind up the business, a special general meeting was called on the 2nd of November, 1848. At that meeting it was proposed that a call to a certain amount should be made, and that those shareholders who were desirous of leaving the company should pay a part of that call, and for non-payment of the rest their shares should be declared forfeited. To allow of the consideration of this proposal by the shareholders, the meeting was adjourned to the 13th of November, to be held at the New Inn, Chippenham, and notice sent to every shareholder. At the adjourned meeting an agreement (in all the cases referred to as the " Chippenham compromise ") was concluded to the effect of the above proposal. Circulars had been sent to all the shareholders, stating those terms, and telling them that they might retire if they accepted those terms on or before the I3th of November, the day of the adjourned meeting. Several of the shareholders availed themselves («) Stricli V. Swansea Tin Plate Co., 36 Ch. D. 558. . (a) Johnson v. Lyttle's Iron Ai]oncy, o Ch. Div. 687. (6) Goulton V. London Architectural Co., W. N. 1877, 141. (c) 32 & 33 Vict. c. 19, ss. 16-20 ; see Bodmin United Mines Co., 23 Bear. 370. (rf) Brotherhood's Case, 31 L. J. (Ch.) 861; 31 Bcav. 365; 8 Jur. (N.S.) 926; Evans v. Smallconibo, 3 Eq. 769 ; L. K. 3 H. L. 249 ; and see, passim, the cases in the Agriculturists' Cattle insurance Co., cited and collected infra ; of, also Imperial Bank of China, ijc, v. Bank of Hindustan, cf-c, 6 Eq. 91 : and see as to what is sufficient to shew knowledge and acquies- cence, Phosphate of Lime Co. v. Qreert, L. R. 7 C. P. 43 ; Eiche v. AslAury Rail- way Carriage Co., L. R. 9 Ex. 224; 7 H. L. 653 ; Irvine v. Union Bank of Australia, 2 App. Cas. 366. (e) Marshall v. Glamorgan Iron and Coal Co., 7 Eq. 129 ; cf. the clause in Feather- stonhaugh v. Lee Moor Co., 1 Eq. 318. (/) Whether the authority of these cases, decided under 7 & 8 Vict. c. 110, is on the question of acquiescence and ratification equally applicable to cases falling under the Comp. Act, 1862, see Siche t. Ashbury Sailway Carriage Co., L. R. 9 Ex. 224, 266, 289 ; S. C. 7 H. L. 653. THE COMPANIES ACT, 1862, SCH. I. 467 of the " Chippenham compromise," made the payments accordingly, and Table A. were never afterwards treated as shareholders. Among these was a Mr. Art. 19. Brotherhood. Others, among whom was a Mr. Spackman, did not assent to the Chippenham compromise. Mr. Spackman presented a petition to the Court of Chancery to wind up the company, which was dismissed by Knight Bruce, V.C., and, on appeal, the Vice-Chancellor's order was afBrmed by Cottenham, L.C. (g). Subsequently, negotiations were entered into between Mr. Spackman and six other shareholders and the directors, and at the end of 1849 those seven persons were allowed to retire from the company on pay- ing a sum of money less than that which they would have had to pay under the Chippenham compromise. Lord Belhaven was an alleged shareholder, who had never executed the deed of settlement, and repudiated his liability altogether. In his case a compromise was effected in 1855, under which his shares were forfeited. Mr. Stanhope was another shareholder who elected to continue a shareholder at the time of the Chippenham compromise. Sub- sequently, however, he wished to retire, and under an arrangement with the directors his shares were in August, 1849, forfeited for non-payment of calls. Mr. Smallcombe was a shareholder who elected to retire under the Chippenham compromise ; but, instead of paying the sum due under that arrangement before the day fixed for its payment, he, after that day was passed, asked for an extension of time, and a bill accepted by him for the amount was taken by the directors. Mr. Stewart was a shareholder who did not accept the Chippenham compromise within the time limited, but after his death in 1849, his executors agreed with the directors to pay the sum payable under that arrangement, and the shares were thereupon forfeited. Mr. Houldsworth was a shareholder who did not attend the meeting of the 13th of November, but on the 12th of December application was made on his behalf to obtain a forfeiture under the Chippenham compromise, and ultimately an arrangement was made under which his shares were forfeited in April, 1849. Lastly, Mr. Dixon was a gentleman resident in Scotland, to whom application was made on behalf of the company to accept the ofBce of local director there. He consented upon conditions which were not complied with, and, although an application for, and allotment of, shares was made in his name, he did not consider himself a shareholder, and for that reason did not attend the Chippenham meeting. Subsequently he insisted that, the conditidns upon which he had consented to become a director not having been complied with, he was entitled to the cancellation of his shares, and in April, 1849, the directors cancelled them accordingly. The deed of settlement of the company contained a power of forfeiture for non-payment of calls (A), and a power of compromise of actions and suits brought to enforce any claims of the company (j). By means of the funds received from shareholders who retired under the Chippenham compromise, and other arrangements as above referred to, the company tided over its difiSculties in 1848, but 'a winding-up order was ultimately made in 1861. Upon settling the list of contributories the validity of the forfeitures was disputed, and the cases to which reference is here made were cases in which the liabilities of shareholders who had, under the several circumstances above referred to, suffered many years before a forfeiture of their shares, were to be determined. The short result of the cases is as follows : — Summary of the cases. (g) E. p. Spackman, 1 Mac. & G. 170 ; 1 (0 Clause 198, L. R. 3 H. L. 174 ; and Hall & Tw. 2-29 ; 18 L. J. (Ch.) 261. see Lord Cranworth's observations on this (A) See clauses 125, 126, 182, of the clause, Ibid. p. 188, where clause 164 is deed of settlement, L. R. 3 H. h. 172-174. also referred to. 2h2 468 THE COMPANIES ACT, 1862, SCH. I. Table A. Held not to be Contbibutoeies : Art. 19. 1. Brotherhood {k). For the forfeiture of his shares was made under the Chippenham compromise, and, although ultra vires, was rendered valid by communication to and acquiescence by all the shareholders. 2. Belhaven {T). For there was a hand fide dispute whether he was a share- holder at all or not, and this was properly the subject of a compromise under the 198th clause of the deed of settlement. 3. Smallcomle (m). For the forfeiture of his shares was made under the Chippenham compromise : and although he did not at once pay the sum for which he was liable, but gave a bill for the amount which was paid at maturity, the mere enlargement of the time of payment could not affect the validity of the transaction. 4. Dixon (n). For i^per Lord Westbury) he was a shareholder not under a complete but a conditional contract, and the question of his liability was therefore, as in Lord Belhaven\ Case, properly the subject of compromise ; (per Lord Cairns) although he was undoubtedly a shareholder, a hond fide compromise, including a forfeiture of his shares, could not after the lapse of time be disturbed. (But qucere whether Lord Cairns' judgment is not in conflict with the decision of the majority of the House of Lords in Spaclcman v. Evans (o).) Held to be Contbibutoeies: 1. Spachman {p). For the forfeiture of his shares was not by adverse sentence, but by collusive contract. It was a fraud on the power ; aliud simulatum, aliud actum. Not being within the protection of the Chippenham compromise, and rendered valid by communication and acquiescence, it was ab initio invalid, and no lapse of time could render it valid. The forfeiture was not good as a compromise under the 198th clause, for that clause could only authorize compromises upon terms within the competency of the directors, a forfeiture was only within their competency by virtue of the power of forfeiture in the deed, and under that power the transaction was invalid ut supra, because it was a fraud on the power. 2. Stanhope (j). For the forfeiture was not under the Chippenham com- promise, but under a subsequent arrangement. This case is governed by Spackman's Case (r). 3. Stewart (s). For the forfeiture, although made on the same terms as those of the Chippenham compromise, was arranged after the time limited for accepting those terms had expired. 4. Houldsworth (t). For, as in Stewart's Case, the arrangement was made after the time limited for accepting the Chippenham compromise had expired, which time was an essential part of the ti'ansaction. The table on pp. 470, 471, is intended to shew at a glance the conflict of opinion among the many learned judges who assisted at the hearing of one or more of these cases, and the several decisions arrived at. The general principles to be deduced from these and other decisions may now be conveniently detailed. (/i) 31 Boav. 365; 8 Jur. (N.S.) 926; 321; llJur. (N.S.) 207; L. R. 3 H. L. 171. 31 L. J. (Ch.) 861 ; 4 D. F. & J. 566. (5) 14 W. R. 42 ; 1 Ch. 161. (0 12 L. T. 324, 595; 11 Jur. (N.S.) (r) See L. R. 3 H. L. 210. 672 ; 3 D. J. & S. 41. ' (s) 1 Ch. 511 ; there was no appeal to (m) 3 Eq. 769 ; L. R. 3 H. I. 249. the House of Lords in this case ; but it (n) 5 Ch. 79 ; L. R. 5 H. L. 606. is practically affirmed by Houldsworth y. (0) L. R. 3 H. L. 171. JSvans, L. R. 3 H. L. 263. (p) 10 Jur. (N.S.) 911 ; 34 L. J. (Ch.) (t) L. R. 3 H. L. 263. THE COMPANIES ACT, 1862, SCH. I. 469 A power of forfeiture for non-payment of calls is a power intended to be Table A. exercised only when the circumstances of the shareholder render its exercise Art. 19. expedient for the interests of the company ; it is not a power to be exercised for the benefit of the shareholder. The duty of the directors, when a call is ^^g*^ be for made, is to compel every shareholder to pay to the company the amount due benefit of from him in respect of that call, and it is only when payment cannot be company :— obtained that the power of forfeiture is to be resorted to (it). The power must be exercised bond fide for the good of the company, not to relieve a shareholder from liability {x). Powers given to directors for one purpose cannot be used by them for another and a different purpose (y). And although the shareholder in whose favour the. forfeiture is declared has no knowledge that the power is being used improperly, yet when he comes to claim the benefit of it, the transaction becomes a collusive one and invalid (z). And therefore if, under any circumstances, a forfeiture is declared, not by and bom fide. way of adverse sentence against the shareholder, but by way of collusive contract with him — whether it be to enable him to avoid his liability, or be land fide, with a view to putting an end to disputes between him and the directors, and as part of a bond fide compromise— such forfeiture is a fraud on the power and invalid. Any forfeiture in which there is aliud simulatum, aliud actum, is invalid (a). Thus the forfeiture of the shares of a member, who alleged that he was entitled to repudiate his shares on the ground of fraud, was invalid (b). And where a director had subscribed the memorandum of association for 500 shares, but only 250 were allotted to him, an arrangement with his co-directors, under which a jMosi-surrender or forfeiture was made by a deed of release and indemnity, was ineffectual (c). Again, where a director took shares for the purpose of enabling the company to obtain registration, on the understanding that no calls should be made upon them, and they were subsequently forfeited to relieve him from liability, he was fixed as a contributory for those shares (d). So where upon certain persons ceasing to be directors, their shares were declared to be forfeited for non-payment of calls, in order to put an end to their liability, the forfeiture though bond fide was invalid (e). And if a forfeiture be ultra vires no lapse of time alone can render it valid : Forfeiture, if Qvad ab initio non valet, in traatu temporis non convalescit (/). " If a declara- f'" *!?!?*' '! tion of forfeiture proceeds upon and is the result of a collusive agreement, w \^„g^ ^f time : — («) Stanhope's Case, 1 Ch. 161, 169; however, properly a case of forfeiture. Spackman v. Evans, L. E. 3 H. L. 171, 186, (d) London and County Assurance, E. p. 230 ; ffarris v. North Devon Railway Co., Jones, 27 L. J. (Ch.) 666. 20 Beav. 384 ; Esparto Trading Co., 12 Ch. (e) Manisty's Case (Eur. Arb.), L. T. 87 ; D. 191. 17 Sol. J. 745. (x) Sichmond's Case, Painter's Case, 4 (/) Spackman v. Evans, L. E. 3 H. L. K. & J. 305, 325. 171 ; Lord Chelmsford, at p. 263, and (i/) Bennett's Case, 5 D. M. & G. 284, references, infra ; Evans v. Smallcombe, 298. L. E. 3 H. L. 249 ; Lord Cairns, at p. 253 ; (z) Manisty's Case (Eur. Arb.), L. T. 87 ; Lord Chelmsford, p. 260 ; Stanhopes Case, 17 Sol. J. 745. 1 Ch. 161 ; Lord Chelmsford, at p.1 169 ; (a) Spademan's Case, 34 L. J. (Ch.) 321 ; and see Biche v. Ashbury Railway Carriage 11 Jur. (N.S.) 207 ; Spackman v. Evans, Co., L. E. 9 Ex. 224, 240 ; 7 H. L. 653 ; L. E. 3 H. L. 171, 189; Stanhope's Case, 1 see, however, in Houldsworth v. Evans, Ch. 161, 169 ; Stewart's Case, 1 Ch. 511 ; L.,E. 3 H. L. 263, Lord Cranworth, p. 276 ; Houldsworth r. Evans, L. E. 3 H. L. 263 ; and contra, in Spackman v. Evans, Lord St. see, however, Lord Cairns in 7)ia;o» T. .ffjiaras, Leonards, L. E. 3 H. L. 208, 212, et seq. ; L. E. 5 H. L. 606, 623, et infra, p. 474. Lord Romilly, p. 239 ; and v. the table, post, (6) Sower's Case, 6 Eq. 77. pp. 470, 471. (e) Ball's Case, 5 Ch. 707 ; this was not, 470 THE COMPANIES ACT, 1862, SCH. I. Agrtcdltdribts' Cattle Insurance Company. Lord Romillt. Brotherhood's Case, 31 Beav. 365; 8 Jur. (N.S.) 926; 31 L. J .(Ch.) 861 ; 4 D. F.& J. 566. Affirmed in principle by the House of Lords in Evans v. Smallcomhe, L. K. 3 H. L. 249. Spademan's Case. Spack- man v. Evans, 10 Jur. (N.S.) 911; 11 Jur. (N.S.) 207; 34 L.J. (Ch.)321; L. R. 3H. L. 171. Lord Belhaven's Case, 12 L. T. 324, 595 ; 11 Jur. (N.S.) 572; 3D. J. &S. 41. Stanlwpe's Case, 14 W. E. 42; 1 Ch. 161, L.C. AfBrmed in principle by the House of Lords in SpoA^lcmwn y. Evans, L. R. 3 H. L. 171, 210. Stewart's Case, 1 Ch. 511, L.C. Affirmed in principle by the House of Lords In Boulds- worth V. Evans, L. R. 3 H. L. 263. Smallcomhe'sCase. EuansY. Smallcomhe, 3 Eq. 769 ; L. R. 3 H. L. 249, ITouldsworth v. .Buans, L.R. 3 H. L. 263. Lords Justices. Dixon's Case. Dizon v. Case, 5CIi. 79; L. R. 5 H. L. 606. [As to thiH Table, see ante, p. 468.] M.R.] held B. not contribu- tory. B. retired under Chip- penham compromise, which was communicated to all the shareholders. By lapse of time and acquiescence the invalid forfeiture was rendered valid. M.R.] held S. not contribu- tory. Bond fide compromise : no fraud : lapse of time was equitable bar to proceedings. H.of L., L.R.3H. L.239.] In absence of fraud, i.e., grave moral fraud, lapse of tin. e bars all proceedings. S. could not be prejudiced by the absence of information to the share- holders. M.R.] held B. contributory: feeling bound by Lord West- bury's decision in Spademan's Case. M.R.] held S. not contribu- tory. Thought -Spaceman's Case and Belhaven's Case irre- concilable ; and therefore fol- lowed the latter, which he approved. M.R.] held S. not contribu- tory, following Brotherhood's Case. M.R.] held S. not contribu- tory, following Brotherhood's Case ; the only difference being thatS.paidwhatwasduefrom him, not in cash, but by a bill. H. of L., see L. R. 3 H. L. 262] present at the first ar- gument, held S. not contribu- tory but did not vote. M.R.] held H. contributory. Order made without argu- ment after decision of L.C. in Stewart's Case. M.R.] held D. not contribu- tory, following Lord Belha- ven's Case. Knight Bruce and Turner, L.JJ.] affirmed order of the M.R. Knight Bruce and Turner, L.JJ.] held B. not contribu- tory. There was a bond jide dispute whether B. was a shareholder or not: this ques- tion was a proper subject for compromise. Lord "Westbuey. L.C] held S. contributory. The forfeiture was not by ad- verse sentence, but by collu- sive contract : aliud simula- tum, aliud actum: was not under Chippenham compro- mise, therefore not within the protection of Brotherhood's Case as rendered valid by acquiescence. Giffard, L.J.] held D. con- tributory : there was no con- troversy whether D. was a shareholder or not : the case was therefore governed by ^aackman v. Evans^ not by Lord Belhaven's Case. H. of L.,L. R.5H.L.612] held D. not contributory. D. was not a shareholder under a complete, but only under a conditional contract. Thecan- celUng the apparent contract was a proper subject of com- promise. THE COMPANIES ACT, 1862, SCH. I. 471 Lord Cranwobth. Lord Chelmsford. Lord Cairns. Lord St. Leonards. Lord Colonsat. SNoTE. — In all the subsequent cases this case was assumed to have been, and all the learned Judges with one exception appear to ham been of opinion that it was, rightly decided. Its principle was a;Sirmed by the House of Lords in Evans v. Smallcombe, L. B. 3 S. L. 249, Lord Chelmsford, however (v. 1 Cli. 513;,X. R. 3 H. L, 259), whiU allowing that the acquiescence with knowledge of every shareholder would have rendered the forfeiture valid, denied that there had been such acquiescence. H. ofL.,L. R. 3H. L. lYS] held S. contributory. Not bond fide exercise of power of forfeiture : not good as compromise of ac- tion for calls : might have been, but was not, ren- dered valid by communi- cation to and acquiescence by all the shareholders. L.C.] held S. contribu- tory : adopted judgment of Lord Westbury in SpacJcman's Case. H. ofL.,L.E. 3H. L. 25 V] held S. not contribu- tory : for he retired under the Chippenham compro- mise, V. supra in pack- man's Case. H. ofL.,L. E. 3H. L. 2Y6] held H. not contribu- tory. The only variation from the Chippenham compromise was in point of date, and of this fact the shareholders had in- formation, or means of information. In ^tank- man's Case there were no means of information of the variation in the money payment. H.ofL.,L. R. 3H.L. 224] held S. contributory. Arrangement invalid whether as forfeiture or compromise. Power of compromise ie good only within the competency of the directors. Mere lapse of time can never grow into acquiescence. L.C] held S. contribu- tory. Time was an essen- tial part of the Chippen- ham compromise, and S. having come in after the time limited was not within Brotherhood's Case. H. ofL.,L. E. 3H.L, 259] held S. contributory. The Chippenham com- promise was not good, for it had not the acquies- cence of every share- holder. H. ofL.,L. R.3H.L. 281] held H. contribu- tory: time being of the essence of the Qjippen- ham compromise. H. ofL.,L.R. 3H. L. 252] held S. not coDtribu- tory. The Chippenham compromise was by ac- quiescence valid, and S. was within it. H. of L.,L.R. 3H.L. 265] held H. contribu- tory. Time was of the essence of the Chippen- ham compromise, and H, was too late. H. of L., L. R. 5 H. L. 620] held D. not contribu- tory. He was a share- holder, but the bond fide compromise could not after the lapse of time be disturbed. [N.B. This judgment seems to con- flict with the decifiion of the majority of the House in Spaekman v. Evans. H. of L., L. R. 3 H. L. 197] held S. not contributory. Arrangement was a continuation of the Chippenham com- promise : after the lapse of time the question tm'ns not on the legal validity of the forfeiture, but on its bona fides. Lapse of time was equitable bar to pro- H. of L., L. E. 3 H. L. 245] held S. contributory. H. of L., see L. E. 3 H. L. 252, 262] present at the first argument : held S, contributory but did not vote. H. of L., L. E. 5 H. L. 620] held D. not contributory : concurring with Lord Westbury. 472 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 19. unless acqui- escence by every share- holder is shewn. but is entered by the directors in the books of the company as if it were a bond fide adverse proceeding, the entry is a false statement involving a fraudulent concealment of the truth, for the suppression of the truth is a form of falsehood, and falsehood is fraud, and it is impossible under such circumstances of imposition on the other shareholders that the shareholder who sets up the forfeiture can make a case of acquiescence, or derive any benefit from lapse of time whilst the truth remains unknown " (jg). Moreover the shareholders are not bound to search the company's books in order to detect irregular proceedings on the part of the directors (h) ; or at any rate, even if passive acquiescence for a great length of time by share- holders who have received balance sheets shewing that a large number of shares have been cancelled, may preclude them from subsequently question- ing the cancellations, they cannot be so precluded unless they were also aware that the acts of the directors were illegal and irregular (i). But if, upon a forfeiture which was ultra vires and invalid, the transaction was communicated to, and acquiesced in by every shareholder, or if the means of notice to all appear sufficient, so as to raise a clear presumption of knowledge and acquiescence, and the arrangement is left unimpeached for a great number of years ; then that which was in its inception invalid, will by acquiescence be rendered unimpeachable (^•)• As to what is a suificient notice or means of notice to all the shareholders, it is by no means easy to lay down any general rule. It is not necessary or possible to prove the acquiescence of every individual shareholder, and it is probably enough to shew circumstances which are reasonably calculated to satisfy the Court or a jury that the thing to be ratified came to the know- ledge of all who chose to inquire, all having full opportunity and means of inquiry (Q. But it is not enough to shew merely that there was sufficient to rouse attention (m). Where certain rights in respect of dividend having been defined by the memorandum of association, the company passed special resolutions altering those rights, and dividends upon the altered terms were paid for eleven years, it was held that the alteration was ultra vires, and that (assuming that every shareholder could have agreed to vary his rights) ratification was not proved because full knowledge was not shown (ra). By " acquiescence " is meant being content not to oppose (o). In the absence of full information mere lapse of time cannot grow into acquiescence. Length of time may, in many cases, materially assist in estab- (g) Per Westbury, L.C., in Spachnan's Case, 34 L. J. (Ch.) 321, 330, cited by Lord St. Leonards in Spackman v. Evans, L. E. 3 H. L. 171, 212. (A) Stanhope's Case, 1 Ch. 161, 169; cf. Rawlins v. Wickham, 1 GifF. 355 ; 3 De G. & J. 304. (t) Spackman v. Evans, L. K. 3 H. L. 171; Lord Cranworth, at pp. 193, 194; Lord Chelmsford, p. 235 ; although contra. Lord St. Leonards, p. 220. (/j) Brotherhood's Case, 31 Beav. 365 ; 8 Jur. (N.S.) 926 ; 81 L. J. (Ch.) 861 ; Smallcombe v. Evans, L. R. 3 H. L. 249. It will bo observed that the dissent of Lord Chelmsford in Smallcombe v. Evans does not touch this proposition, for he denied the acquiescence ; Spaclmian v. Evans, Lord Cranworth, L. K. 3 H. L. p. 190; Houlds- worth V. Evans, Lord Cranworth, Ibid. p. 276 ; Lord St. Leonards and Lord Eomilly held the lapse of time to validate the trans- action in all the cases. (/) Phosphate of Lime Co. v. Green, L. E. 7 C. P. 43; Eiche v. Ashhury Railway Carriage Co., L. E. 9 Ex. 224, 232. (m) Ashbury Co. v. Riche, L. E. 7 H. L. 653, 681 ; PlacMmm Society v. Brooks, 29 Ch. Div. 902, 910. (n) Ashbury v. Watson, 28 Ch. D. 56 ; 30 Ch. Div. 376. (o) Per Lord Cairns, L. E. 3 H. L. 256, 265 ; in Smallcombe v. Evans, affidavits filed (see 3 Eq. 770) by several shareholders to the effect that they had never acquiesced in the Chippenham arrangement did not rebut (he presumption of acquiescence ; see also Lord Cranworth in Spackman v. Evans, L. R. 3 H. L. 193. THE COMPANIES ACT, 1862, SCH. I. 473 lishing acquiescence ; but it is not the time, but the acquiescence, which Table A. changes what would otherwise be a void act into a valid one (p). Art. 19. Where it is sought to establish an invalid transaction as having been rendered valid by acquiescence, it must be shewn to come strictly within the terms of that arrangement which was communicated to and acquiesced in by the shareholders. Therefore, where it was an essential part of the pro- ceeding that advantage should be taken of the arrangement before a certain date, forfeiture in the case of shareholders who came in after that date was invalid (j). In King's Case (r) £100 shares having been subdivided and converted in a manner which was unauthorized and void each into five £20 shares, a forfeiture was declared for non-payment of calls on the £20 shares in a way which, if the conversion had been legal, would have been quite regular. The shareholder wrote, asking for a remission of the forfeiture, treating the shares as £20 shares and taking no objection to the regularity of the pro- ceedings. His letter was not answered, and he never afterwards claimed to be a member. In the winding-up, which commenced seventeen months after- wards, the forfeiture was treated as valid. A power of compromise, conferred upon the directors by the articles. Power to com- cannot be employed, in the case of a land fide shareholder, to enlarge the promise does power of forfeiture of shares given by the articles. A power of compromise forfeiture : does not extend further than to compromise within the competency of the directors. It is, therefore, not competent to directors, under a power to compromise, to effect with a shareholder a compromise, one term o£ which is that his shares shall be forfeited, in a case where no valid forfeiture could be made under the power of forfeiture (s). In Dixon v. Evans (f), however. Lord Cairns seems to have held that Dixon was a shareholder (u), but nevertheless that the compromise by which his shares were forfeited was good (x). In Spackman v. Evans the bond fides of the transaction was not allowed to support it. But where there was a bond fide dispute whether B. was a shareholder or except in com- not, a compromise by which the directors released him and forfeited his promise of dis- shares was good. For there was sufficient doubt as to B.'s liability to be s^areholda- or treated as a shareholder, for the dispute between himself and the directors not. on the question to be a proper subject of compromise (y). Quasre, whether in such a case, where the compromise was clearly for the benefit of the company, the directors would not have power, independent of authority given by the deed of settlement, to effect it (z). In confirmation of which it has since been held that a company has, as an incident to its existence, and independent of express power under its articles, the same power of compromising claims against it as an individual has, and that consequently a cancellation of shares by way of hond fide compromise of a dispute whether the shares had been legally issued or not was valid (a). It was held, however, in Fletcher's Case (h), that, independent of authority {p) L. R. 3 H. L. 233, 260. (u) Ibid. p. 621. (?) Hmldmorth r. Evans, L. E. 3 H. L. (a) Ibid. p. 623. 263 ; Stewart's Case, I Ch. 511 ; and see (y) Lord Belhaven's Case, 12 L. T. 324, ■ Stanhope's Case, 1 Ch. 161, where the 595; llJur. (N.S.) 572 ; 3 D. J. & S. 41 ; amount paid by the shareholder was also Dixon's Case, 5 Ch. 79 ; Dixon v. Evans, varied. L. R. 5 H. L. 606 ; and see Wright's Case, (r) Be Financial Corporation, 2 Ch. 714, 12 Eq. 331 ; 7 Ch. 55. 731. (z) Per Lord Westbury, Dixon v. Evans, (s) Spackman v. Evans, L. R. 3 H. L. L. R. 5 H. L. 606, 618. 171, 189, 231, 232. (a) Mth's Case, 8 Ch. DW. 334. (0 L. R. 5 H. L. 606. (6) 37 L. J. (Ch.) 49 ; 16 W. R. 75 ; 17 474 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 19. Specific per- formance of agreement to forfeit. Forfeiture when com- plete. Formal notice of forfeiture not given. given by the articles, the directors have no power to cancel an allotment of shares. Where a compromise is hona fide, that is, is not an instrument to carry into effect any ulterior or collateral purpose, but only seeks to do that which is within the very terms of the compromise, and where the claims on each side are bond fide and truly made, the Court, if satisfied that it is not manifestly ultra vires the parties, ought to respect it (c). Where directors, believing a shareholder to be of no means, have agreed with him to forfeit his shares upon terms, but afterwards, finding him to have means, have refused to carry out the forfeiture, the Court will not compel specific performance of the contract (d). If the articles provide that, upon non-payment of calls or upon default in doing any act, shares "shall become absolutely forfeited to the company," the effect is that a default operates as a forfeiture, not vpso facto, but only at the option of the directors (e). So where the articles provided that, on default, any share " may be there- upon forfeited," and a shareholder, having received a notice that on non- payment by a certain day his shares " would be forfeited without further notice," paid the arrears on some, saying that he would submit to a forfeiture on the rest ; it was held that the shares on which the arrears were not paid were not thereby absolutely forfeited, but that the company's right of option remained; and the company having declared their intention of retaining the shareholder, he was made a contributory in the winding-up in respect of the full number of shares (/). But a prospective resolution for forfeiture is not invalid: and therefore where the directors passed a resolution that a notice should be sent to W. requiring immediate payment, and that, in default of payment within twenty- one days, the shares would be irremediably forfeited, non-payment operated as a forfeiture — for the directors had by the resolution declared their decision (g). So, where the deed of settlement provided that if any call should not be paid within twenty-one days after it became due, the shareholder in default should cease to be a shareholder and his shares should be forfeited unless the directors within thirty days after the expiration of the twenty-one days decided to the contrary, it was held that in default of such decision within the time limited a forfeiture took place (Ji). And it is not in all cases necessary that the decision of the directors should be declared in a formal way ; so that, where there had been no declaration of forfeiture sent to the shareholder, but the directors had in their balance-sheet treated the shares as forfeited, the application of the official manager in the winding-up to make the shareholder a contributory failed (i). So, where no formal cancellation appeared to have been made, but the register of shareholders in 1868 contained a note to the effect that the shares had been cancelled, and the winding-up commenced in 1872, it was held that the company had acquiesced in the cancellation so long that it must be treated as valid (k). L. T. 136 ; Adams' Case, 13 Eq. 474 ; ei v. ante, p. 80, (c) Per Lord Westbury, Dixon v. Evans, h. R. 5 II. L. 606, 618. (rf) Uarris v. North Devon Saihcay Co., 20 Beav. 384. ►. ((•) Moore v. SawUns, 6 C. B. (N.S.) 289, 310 ; and see 1 Eq. 314. (/) Bigg's Case, 1 Kq. 309. ((/) Wollaston's Case, 4 De G. & J. 437 ; 28 L. J. (Ch.) 721 ; and see Knight's Case, 2 Ch. 321, 327. (A) Painter v. Ford, W. N. 1866, 77. (0 Webster's Case, 32 L. J. (Ch.) 135 ; 11 W. R. 226; 7 L. T. 618. (h) Hoylake Railway Co., Welsby and Andersson's Case, W. N 1873, 200. THE COMPANIES ACT, 1862, SCH. I. 475 Where, after allotment of shares in a banking company, proTisional certi- Table A. ficates only were issued, which upon certain acts done by the allottee were to Art. 19. be exchanged for shares, but in default the rights and privileges attaching to the certificates were to be forfeited, a shareholder who made default and did not exchange his certificates was under no obligation to take shares, and his interest was forfeited (I). If the articles provide that, upon forfeiture, notice of the forfeiture shall be sent to the shareholder, it will not necessarily invalidate the forfeiture if it be shewn that such notice was not given. For the provision as to sending notice may be mandatory or directory only, and at any rate it will not lie in the mouths of the directors to say that the forfeiture is not valid and complete (m). Eelh's Case (n) shews, further, that notice to the shareholder is not in all cases necessary. If the company act irregularly in respect of formalities which are intended Formalities not for the protection of the shareholder, and upon proceedings thus irregularly ol^served. conducted declare a forfeiture of shares, they cannot afterwards turn round and claim to hold the shareholder liable as a contributory (o). Thus where there was an irregularity, first in respect of the quorum of directors by whom a call was made ; and, secondly, in giving less than the requisite length of notice of the call, a forfeiture for non-payment of the call was nevertheless held valid (p). So, if the articles provide that forfeiture is to be made by resolution of the directors, the Court will assume that such resolution was duly passed, if the forfeiture is found properly entered in the books of the company, although there be in the minutes no entry of the resolution {q). If, upon a valid forfeiture or cancellation of shares, everything have been done on the part of the shareholder that is required to sever his connection with the company, he will not be prejudiced by the default of the company in not completing the cancellation and taking his name off the register before a winding-up order is made (r). The fact that the name of a subscriber of the memorandum of association has not been actually entered on the register, and that therefore no specified shares have ever been allotted to him, does not prevent the application to him of a power of forfeiture and surrender (s). But where a person has entered into an agreement to take shares, the directors have not, apart from the articles, any power to release him from his contract because he has not actually become the holder of specified shares (t). And if the transaction be not an exercise of the power of forfeiture and surrender, but something else — as where by deed the subscriber was released from all liability in respect of some of the shares for which he had subscribed, and indemnified against all past liability in respect of them — this was ineffectual, for it was in fact not a forfeiture, but a dealing in shares by the company (u). (I) He Asiatic Banking Corporation, E. (p) Phosphate of Lime Co., Austin's Case, p. Collum, 9 Eq. 236. 24 L. T. 932. (m) Knight's Case, 2 Ch. 321 ; Wollas- (g) Xnighfs Case, 2 Ch. 321. ton's Case, 4 De G. & J. 437 ; 28 L. J. (Ch.) (r) Marshall v. Glamorgan Iron and Coal 721, as to wliich see note in 1 Eq. 313. Co., 7 Eq. 129 ; Lyster's Case, 4 Eq. 233. (n) 9 Eq. 107, v. supra, p. 465 ; and see (s) Snell's Case, 5 Ch. 22 ; and see Webster's Case, 32 L. J. (Ch.) 135 ; 11 Thomas' Case, 13 Eq. 437. W. R. 226 ; 7 L. T. 618. (t) Adams' Case, 13 Eq. 474 ; Fletcher's (o) Although the shareholder might be Case, 37 L. J. (Ch.) 49 ; 16 W. E. 75 ; 17 entitled to insist that the forfeiture was L. T. 136. irregular, see ante, p. 465. (m) Mall's Case, 5 Ch. 707. 476 THE COMPANIES ACT, 1862, SOH. I. Table A. It will be a consideration, in determining the validity of an alleged Art. 19. forfeiture, whether the parties are bargaining at arm's length (x) or not (?/). '— A forfeiture made by two directors out of six, two being the number of directors who usually conducted the business of the company, was good {z). When share- A shareholder may bring an action on behalf of himself and all other share- holder may set holders to annul the forfeiture of his shares (a). If the company is in aside for- liquidation the question may be raised by summons (6), and if the shares cannot be restored to the shareholder he may in the winding-up be admitted as a creditor for damages (c). Mere laches will not disentitle him to equitable relief against an invalid declaration of forfeiture (d) : unless he have lain by for more than six years (e). Where a shareholder sent a cheque in payment of calls due, subject to a protest which was held to be of no effect, this was a good tender of payment, and the forfeiture of his shares was invalid (/). "Where tender of payment was made at the company's office on the last day limited for payment, and the manager, handing the messenger a blank form of receipt to be filled up by the bankers, told him to pay it into the bank to the company's account, but the messenger arrived at the bank a few minutes after banking hours, and, therefore, did not pay the cheque in until the next day, the payment was in time (jj). Forfeiture not Notice was on the 25th of November, 1867, sent to A. that in default of allowed to be payment of arrears on the 2nd of December his shares would be forfeited, bankruptcy!" ^n the 29th of November A. was adjudicated bankrupt, and on the 3rd of December the directors forfeited his shares. It was held that the validity of the forfeiture could not be questioned in bankruptcy, but must be tried in an independent proceeding (Ji). Notice. Where there was a right of forfeiture on giving ten clear days' notice, a notice posted on the 27th and received on the 28th of February to forfeit " on Monday the 9th of March," the 9th being a Friday, was insufficient (i). Winding-up. Where a forfeiture of shares has been validly made before the commence- ment of a voluntary winding-up, the liquidators have no power under sect. 131 to cancel the forfeiture (h). As to the liability, as a B. contributory, of a shareholder whose shares have been forfeited, see supra, p. 144. Bankruptcy. Under the Bankruptcy Act, 1869, s. 23 (c/. Bankruptcy Act, 1883, s. 55), shares disclaimed by the trustee in bankruptcy are to be deemed to be forfeited Q). Rectification of The cases above collected, and the rules stated, as to forfeiture of shares, r''^35~f' ^*^' turn, of course, on entirely different considerations from, and are in no way in conflict with, the cases collected under Companies Act, 1862, s. 35. The cases here collected are cases in which persons, who have under a binding contract become shareholders, have by virtue of powers given by the articles (x) Snell's Case, 5 Ch. 22. (d) Garden Gully Co. v. MoLister, 1 App. iy) Hall's Case, 5 Ch. 707. Cas. 39. («) Lyster's Case, 4 Eq. 233 ; and see (e) Itule v. Jewell, 18 Ch. D. 660. Austin's Case, 24 L. T. 932. (/) See note (a), supra. (a) Sweny V. Smitli, 7 Eq. 324; but not (g) Clarke's Case, 27 L. T. 843; 21 to be relieved of his shares on the ground W. R. 429 ; 42 L. J. (Oh.) 277. of misrepresentation ; Hallows v. Femie, 3 (A) E. p. Bippon, Be Andrew,4: Ch. 639. Ch. 467. (»■) Watson v. Sales, 23 Bear. 294. (6) Alma Spinnint/ Co., Bottomley's Case, (4) Dawes' Case, 6 Eq. 232 ; et v. supra, 16 Ch. D. 681. ji. 320. (c) New Chile Co., W. N. 1890, 174. (0 See note to Art. (15). THE COMPANIES ACT, 1862, SOH. I. 477 ceased to be shareholders ; while the cases under sec . 35 are cases in which Table A. contracts voidable at the instance of the shareholder have been avoided. Art. 20. (20.) Any share so forfeited shall be deemed to be the property Forfeited of the company, and may be disposed of in such manner as the propert? of company in general meeting (a) thinks fit. company. (o) Arts. (29)— (43). Forfeited shares may be issned again by the company at a discount [quxre, not exceeding the amount paid by the previous holder] without the registration of a contract under Companies Act, 1867, s. 25 (m). (21.) Any member whose shares have been forfeited shall not- Calls owing on withstanding be liable to pay to the company all calls owing shaMs^* upon such shares at the time of forfeiture. Semble that, in the absence of a provision in the articles that calls owing at the time of forfeiture shall notwithstanding forfeiture be payable, pro- ceedings at law to recover such calls will after forfeiture be incompetent, for such proceedings must stand on the footing that the person sued is a share- holder (n). And where the articles reserve a right to the calls due at the time of forfeiture, so that such calls can be recovered, yet the shareholder cannot be put upon the list of contributories in respect of them (o). Where there is under the articles a power to recover calls due at the time of forfeiture, a shareholder remains liable for a call made, but not payable before the date of the forfeiture ; for a call is owing on the day it is made, although it be payable on a subsequent day (^). As to the liability, as a B. contributory, of a member whose shares have been forfeited within a year before the commencement of the winding-up, see supra, p. 144. In Stockeri's Case (j) it was held upon the construction of the articles that Interest on a reservation of interest upon unpaid calls ceased to be applicable after such calls. forfeiture. As to calls on shares disclaimed by a trustee in bankruptcy, and therefore. Bankruptcy. under the Bankruptcy Act, 1869, deemed to be forfeited (r), see note to Art. (15). (22.) A statutory declaration in writing, that the call in respect Title to for- 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 evidence 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 constitute a good title to such share, and a certificate of proprietorship shall be delivered to a purchaser, and thereupon he shall be deemed (m) MamwelVs Case, 29 W. R. 882. (j)) Dawes' Case, 38 L. J. (Ch.) 512. ' (n) Stooken's Case, 5 Eq. 6 ; 3 Ch. 412, (?) 5 Eq. 6 ; 3 Ch. 412. See further 415. note to Art. (6), supra. (o) Needham's Case, 4 Eq. 135; and see (r) Bankruptcy Act, 1869 s. 23; cf. supra, p. 144. Bankruptcy Act, 1883, s. 55. stock 478 THE COMPANIES ACT, 1862, SCH. I. Table A. the holder of such share discharged from all calls due prior to Art. 23. such purchase, and he shall not be bound to see to the application of the purchase-money, nor shall his title to such share be affected by any irregularity in the proceedings in reference to such sale. The object of this article is, of course, to enable the company upon the re-issue of forfeited shares, which under Art. (20) become the property of the company, to give the purchaser a good title not capable of being impeached on the ground of any irregularity in the forfeiture. Conversion of Shares into StocJi. Conversion (23.) The directors may, with the sanction of the company pre- into stock. .... , j- / \ j. • j i viously given m general meeting (a), convert any paid-up snares into stock (/3). (o) Arts. (29)— (43). ()3) ss. 12, 28, 29. Transfer of (24.) When any shares have been converted into stock, the several holders of such stock may thenceforth transfer (a) their respective interests therein, or any part of such interests, 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 trans- ferred, or as near thereto as circumstances admit. (a) s. 22, Arts. (8)— (11) ; Comp. Act, 1867, s. 27, et seq. Stockholder's (25.) The several holders of stock shall be entitled to participate votes. ill til® 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 company, shall be conferred by any such aliquot part of consolidated stock as would not, if existing in shares, have conferred such privileges or advantages. As to the differences and resemblances between shares and stock, sco Morrice v. Aylmer (s). Increase of Capital (a). Issue of new (26.) The directors may, with the sanction of a special resolu- " "'"'■ tion (j3) of the company previously given in general meeting (y), increase its capital by the issue of new shares, such aggregate . (s) 10 Ch. 148; L. R. 7 IF. L. 717. THE COMPANIES ACT, 1862, SCH. I. 479 increase to be of such amount, and to be divided into shares Table A. of -such respective amounts, as the company in general meet- ^^''- "'• ing (y) directs, or, if no direction is given, as the directors think expediient. (a) ss. 12, 34. (|8) s. 51. (y) Arts. (29)— (43). (27.) Subject to any direction to the contrary that may be to be offered given by the meeting that sanctions the increase of capital, all " "**" eis.— 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 (a) 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. (a) Arts. (95)— (97). (28.) Any capital raised by the creation of new shares shall be to be con- considered as part of the original capital, and shall be subject to o/originai''*^' the same provisions with reference to the payment of calls, and capital. the forfeiture of shares on non-payment of calls, or otherwise, as if it had been part of the original capital. General Meetings (a). (29.) The first general meeting shall be held at such time, not First general being more than six months (j3) after the registration of the ™^^''°s- company, and at such place, as the directors may determine. (a) ss. 49, 52, 67. (;8) Comp. Act, 1867, s. 39. A general meeting of every company is to be held once at least in every year (sect. 49); and by the Companies Act, 1867, s. 39, the first general meeting must be held within four months after the registration of the memorandum of association. One shareholder does not make a meeting (0. But a committee of a board of directors may consist of only one person (m). (30.) Subsequent general meetings shall be held at such time Subsequent and place as may be prescribed by the company in general meetings. meeting ; and if no other time and 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. When the company is in voluntary liquidation, the liquidator is to («) Sharp V. Dawes, 2 Q. B. Div. 26 ; (m) Taurine Co., 25 Ch. Div. 118. Sanitary Carbon Co.,W. N. 1877, 223. 480 THE COMPANIES ACT, 1862, SCH. I. Extraordinary general meetings Table A. summon a general meeting at the end of the first and each succeeding year Art. 31. from the commencement of the winding-up (sect. 139). It is conceived that this will supersede the general meeting to be held under this article (x). (31.) The above-mentioned general meetings shall be called ordinary meetings; all other general meetings shall be called extraordinary. If no first ordinary meeting is held appointments {e.g., of directors) until the first ordinary meeting continue in force (y). (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. A meeting convened by a Board not properly constituted {e.g., by the exclusion of persons entitled to be present) may be so irregular that its resolutions will be ineffectual (z). (33.) 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. (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 them- selves convene an extraordinary general meeting. The 52nd section contains provisions which are to obtain in the absence of any regulations as to the matters above provided for. If there are regula- tions, but they have become inoperative, sect. 52 is applicable (a). Mandamus to Serrible, the Chancery Division has jurisdiction to grant a mandamus to call meeting, compel the summoning of a meeting pursuant to the provisions of the articles (J). But upon the principle which is always strictly adhered to, that the Court will not interfere with the internal management of a company, the Court will not control the discretion of the directors or shareholders by directing a meeting to be summoned for the general purposes of the company, where the directors or the requisite number of shareholders do not think proper to summon one (c). If a meeting cannot be otherwise summoned at all, or if the object is a special one, such as to ascertain whether legal proceedings instituted by a shareholder or shareholders in the name or on behalf of the company have the approval of the company (d), the Court might call a meeting (e) or give an opportunity for a meeting to be called. {x) Sec, however, s. 140. ((/) South London Fishmarket Co., 39 Ch. Div. 324. {z) Harhen v. Phillips, 23 Ch. Div. 14, 34. (a) JBrick and Stone Co., W. N. 1878, 140. lb) Paris Skating Rink Co., 6 Ch. D. 731. (c) Macdougall v. Gardiner, 10 Ch. 606. (d) Atwool V. Merryweather, 5 Eq. 464, n. ; Featherstone v. Cooke, 16 Eq. 298 ; Mac- dougall V. Gardiner, 10 Ch. 606, 608;. S. C. 1 Ch. Div. 13, 22 ; Pender v. Lushing- ton, 6 Ch. D. 70, 79. (e) Qucere, whether except in a wind- ing-up, the Court has any power to call a meeting : Mason v. Harris, 11 Ch. Div. 97, 109. THE COMPANIES ACT, 1862. SCH. I. 481 And so the Court may control the dJTectors as to the date at which a Table A. meeting shall be summoned if it be shewn that they are exercising their Art. 35. discretion improperly, e.g., that they are calling the meeting earlier than usual in order to exclude from voting the transferees of shareholders who have recently executed transfers with a view to increasing their voting power (/). If a requisition is made for a meeting and the objects stated in the requi- Requisition. sition are such that in no manner and by no machinery can they be legally carried into effect, the directors will be justified in refusing to act upon it, and an injunction might be granted to restrain the requi sitionists from themselves convening the meeting. But if the objects stated in the requisi- tion be such that by any form of resolution or by any machinery sanctioned by the Act they can be carried into effect, it is the bounden duty of the directors to call the meeting. It must be a very strong case indeed which will justify the Court in restraining a meeting of shareholders {g). Proceedings at General Meetings. (35.) Seven days' notice (a) at the least, specifying the place, the N°*'^« "^ day, and the hour of meeting, and in case of special business (/3) the general nature of such business, shall be given to the members in manner hereinafter mentioned (y) or in such other manner, if any, as may be prescribed 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. (o) s. 52. (3) Art. (36). (7) Arts. (95)— (97). The days must, it is conceived, be calculated from midnight to midnight Qi). Seven days. Neither the day of service nor the day of meeting will therefore form part of the seven days. When an extraordinary meeting is called for the transaction of business, of Notice of which notice is necessary, the notice must give substantial information as to tisiness to be that which is proposed to be done, for otherwise resolutions passed upon '^"^^"^ ^ • insufScient notice may be altogether invalid (i). And when a resolution passed at an extraordinary meeting is, for want of proper notice, invalid, a confirmation at the annual general meeting will not render it valid {h). Notice of a meeting summoned " on special business " is not sufiScient notice for an extraordinary meeting (/). When the shareholders have in effect and substance had notice of a meeting, the want of observance of all formalities in respect of the manner of giving notice will not necessarily render the proceedings at the meeting invalid. At any rate, a member who was present at the meeting cannot question its regularity (m). (36.) All business shall be deemed special that is transacted at Special an extraordinary meeting (a), and all that is transacted at an (/) Cannon v. Trash, 20 Eq. 669. (i) Supra, p. 184. Garden Gutty Co. v. (0) Isle of Wight Railway Co. v. Ta- McLister, 1 App. Cas. 39. hmrdin, 25 Ch. Div. 320; Harhen v. Phil- (k) Lawes' Case, 1 D. M. & G. 421. iips, 23 Ch. Div.l4. (0 WiUs v. Murray, iY,x. %i5. . (Ji) Cf. Lawford v. Dams, 4 Prob. Dir. (m) British Sugar Refining Co., 3 K. & J. 61. 408 ; and see supra, p. 448. 2i 482 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 37. Quorum necessai')'. Chairman of meeting. ordinary meeting, witb the exception of sanctioning a dividend and the consideration of the accounts, balance-sheets, and the ordinary i-eport of the directors. (o) Art. (31). (37.) No business shall be transacted at any general meeting, except the declaration of a dividend, unless a quorum of mem- bers (a) is present at the time when the meeting proceeds to business; and such quorum shall be ascertaiaed 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 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 twenty. (a) As to quorum of directors, ». Art. (66). Any provisions contained in the statute as to the number of members required for the doing of any act, such as the provision of sect. 51 as to a special resolution, must be read with relation to the contract between the members contained in the articles, as to the qualification for voting, and the quorum necessary for the transaction of business. Resolutions therefore for voluntary liquidation are invalid unless passed and confirmed at meetings at each of which there is present the necessary quorum of members properly entitled to vote (n). (38.) If within one hour from the time appointed for the meeting a quorum is not present, the meeting, if convened upon the requisition of members, shall be dissolved : in any other case it shall stand adjourned to the same day in the next week, at the same time and place ; and if at such adjourned meeting a quorum is not present it shall be adjourned sine die. A resolution passed at a meeting at which a proper number of persons is not present (o), or at a meeting improperly convened (p), is altogether invalid. (39.) The chairman (if any) of the board of directors shall pre- side as chairman (a) at every general meeting of the company. (o) s. 52. (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 (a). (a) ». 52. (n) Camlrian Peat Co., E. p. Mott ^ Turner, W. N. 1875, 6; 31 L. T. 773; 23 \V. R. 405. (o) Howbeach Coal Co. v. Teague, 5 H. & N. 151. ( p) Harhen v. Phillips, 23 Ch. Div. 14, 34. THE COMPANIES ACT, 1862, SCH. I. 483 (41.) The chairman may, with the consent of the meeting, Table A. adjourn any meeting from time to time, and from place to place, ^^- "■ but no business shall be transacted at any adjourned meeting Adjournment. other than the business left unfinished at the meeting from which the adjournment took place. It seems that it is unnecessary to send a distinct notice to every member for an adjourned meeting (j). And ■where notice of an adjourned meeting was necessary, it was held that when business had been begun and not completed at the meeting from which the adjournment took place, the notice of the adjourned meeting need not state the purpose for which it was summoned (r). Quaere, whether a poll can be demanded on the question of adjournment, and whether the votes ought to be taken according to the number of share- holders or of the shares which they represent (s). There is at common law a right of adjournment of a public meeting (f), and semlle it lies in the chairman («). (42.) At any general meeting, unless a poll is demanded by at Resolution, 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 (o) of the company, shall be sufiicient evidence of the fact, without proof of the number or proportion of the votes recorded in favour of or against such resolution. (o) s. 67. A resolution of the proper majority of the shareholders in general meeting is the proper mode of declaring the will of the corporation, but if all the shareholders, and not a majority only, expressly assent the absence of a resolution may be immaterial (x). As to what is an act of the corporation binding the corporation, and what constitutes a meeting of the corporation, some authorities will be found collected in Staple of England v. Bank of England (y).' As to the authority of the chairman and the effect of his decisions, see note to sect. 51. Where the power of demanding a poll was by the articles given to share- holders quaMed to vote and holding so many shares, it was held that the power was exercisable only by shareholders present in person, for that the holder of proxies is not the holder of the shares included in the proxy (z). A proxy authorizing a person to vote does not authorize him to demand a poll (a). It has been said that if a poll is demanded the chairman cannot direct it to be taken then and there, but that an opportunity ought to be given for the members who are not present to vote at the poll (J). There is, however, authority to the contrary in Beg. v. D'Oyly (c), and (g) Wills V. Murray, 4 Ex. 843. Dir. 675, n., 681, n. Ir) Scadding v. Lorant, 3 H. L. C. 418. (t/) Per Wills, J., 21 Q. B. D. 165. (s) Macdongall v. Gardiner, 20 Eq. 383 ; (z) Beg. v. Government Stock Investment 1 Ch. DiT. 13. Co:, 3 Q. B. D. 442. (f) Beg. V. D'Oyly, 4 Perry & Dayison, (a) Haven Gold Mining Co., 20 Ch. D. 52 ; Beg. v. St. Pancras, Ibid. 66 ; Beg. v. 151, 157. Wimbledon Local Board, 8 Q. B. Biv. 459. (5) Horhury Bridge Co., 11 Ch. Div. 109. (m) Beg. v. D'Oyly, I.e. (c) 12 Ad. & E. 139; 4 Perry and Davi- {x) Wenlock \. Biver Dee Co., 36 Ch. son, 52. 2i2 484 THE COMPANIES ACT, 1862, SCH. I. Table A. Kay, J., has held that under an article providing that the poll shall be taken Art. 43. " i^ s^°^ manner as the chairman shall direct," the poll may be taken then '- ^ and there (d). Secus, if the articles require that the poll be taken subse- quently (e). By common law, votes at all meetings are taken by show of hands, and it is only when a poll is taken that regard is to be had to voting power according to number of shares. There is nothing in the Act or Table A. to exclude, but, on the contrary, there are indications confirmatory of the common-law rule. Unless therefore a poll is demanded, the voting will go by numerical majority (/). It is not necessary that a motion put to the meeting should be seconded, and, semhle, a question might be put by the chairman without its being either proposed or seconded (/). It is an attribute at common law of all public meetings that any qualified person may demand a poll (g). Toll. (43.) If a poll is demanded by iive or more members it 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. In the case of an equality of votes at any general meeting, the chairman shall be entitled to a second or casting vote. See note to Art. (42). Votes of Mevibers. Votes :— (44.) Every member shall have one vote for every share up to ten ; he shall have 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 (a). (a) s. 52. A shareholder is entitled, if he be so minded, with a view to a particular meeting, to transfer his shares or some of them to nominees in such manner as to secure to himself the maximmn of voting power, and unless the directors have under the articles some power to refuse registration available against him they cannot decline to register his transfers (h). in respect of Although a director be disentitled under the articles to vote as a director personal jn respect of any contract in which he is interested, yet he is entitled so to vote as a shareholder at a general meeting («). A shareholder is entitled to vote as he pleases, and to consult his own interests (/c) ; and, in the absence of anything in the articles to the contrary, (rf) Ghillington Iron Co., 29 Ch. D. 159. v. Trask, 20 Eq. 669 ; Pender r. Zushing- (e) British Flax Co., W. N. 1889, 7. ton, 6 Uh. D. 70; Moffatt v. Farquhar, 7 (/). Horbiinj Bridije Co., 11 Ch.Div. 109. Ch. D. 591. (i/) Bt'ij. V. Wimbledon Local Board, 8 (i) Fast Pant Du Mining Co. v. Merry- Q. \i. Div.iod; Campbell Y.Mawul, 5 Ai.and. Keather, 2 H. & M. 254. Cf. North West Ellis, 870, 880 ; Itci^. v. St. Pancros, 4 Peny Transpm-tation Co. v. Beatty, 12 App. Cas. & Davison, 66 ; Beg. v. D'Oyly, Jbid. 52. 589. (/i) Stranton Iron Co., 16 Eq. 559 ; (A) Provided his vote be bond fide, and 'fable A. must have been excluded by the not contrary to public policy: Elliott v. articles of this company, for otherwise Richardson, L. R. 5 C. P. 744. Art. (47) would have interfered ; Cannon interest. THE COMPANIES ACT, 1862, SCH. I. 485 he is not debarred from voting upon a question in which he is personally Table A, interested (l) ; and his vote, if not impeachable for fraud, may in fact deter- Art. 44. mine the matter in his own favour by turning the scale (m). — " Unless some provision to the contrary is to be found in the charter or other instrument by which the company is incorporated, the resolution of a majority of the shareholders duly convened upon any question with which the company is legally competent to deal is binding upon the minority, and consequently upon the company, and every shareholder has a perfect right to vote upon any such question, although he may have a personal interest in the subject-matter opposed to or different from the general or particular interests of the company " (m). Where the question under vote was whether or not the company should adopt a bill which had been filed to impeach the title of some of the share- holders, the holders of those shares were held entitled to vote, for to have decided otherwise would have been to prejudice the whole question at issue (n). And where the question was whether the company should purchase a steamer belonging to one member, the resolution to do so was binding, although that member's own vote turned the scale (o). The shareholder's vote is a right of property, and he is entitled if he pleases to exercise it in a manner entirely adverse to, what others may think the interests of the company as a whole, and from motives or promptings of what he considers his own individual interest (p). There may no doubt be a difference between the vote of the shareholder which belongs to him as a right of property attached to his share, and the vote of a creditor or other member of a class on whom is conferred by the legislature the power of controlling the rights of a minority of the class. In the latter case there may be good ground for saying that the voter is entrusted with his vote in his character of member of a class, and that he is bound to exercise it bond fide for the beaefit of the class including himself, and not for that of himself as opposed to the class. Thus it has been held that debenture-holders voting on a re-construction scheme under the Joint Stock Companies Arrangement Act, 1870 (33 & 34 Vict. 0. 104), ought to vote hand fide in the interests of the debenture-holders as a class (q), and there have been similar decisions in bankruptcy (r). And even the shareholder's freedom of vote is limited by this, that he must use his power consistently with the constitution of the corporation whose affairs he is entitled to control. So that if a majority afflrm a proposition which is ultra vires, the minority are not bound. It is this, it is conceived, which lies at the root of Menier v. Eooper^s Telegraph Company (s), where a majority were seeking to divide assets among themselves to the exclusion of the rest. As between the shareholder and the company, the person entitled to Company exercise the right of voting is the person legally entitled to the shares, the cannot inquire o i o . juj.g beneficial (I) Cf. London and Mercantile Discount (q) Wedgwood Coal Co., 6 Ch. D. 627. ownership. Co., 1 Eq. 277. (r) Kg. E. p. Page, 2 Ch. Div. 323 ; (m) North West Transportation Co. v. K. p. Walter, Ibid. 326 ; E. p. Terrell, i Beatty, 12 App. Cas. 589, 593 ; cf. Farrar Ch. Div. 293 ; E. p. Williams, 18 Ch. Div. V. Farrars, Limited, 40 Ch. Div. 395. 495 ; E. p. Ball, 20 Ch. Div. 670 ; E. p. (n) East Pant L>u Mining Co. v. Merry- Bussell, 22 Ch. Div. 778 ; E. p. Straw- weather, 2 H. & M. 254 ; and see Mason v. bridge, 25 Ch. Div. 266. £ams, 11 Ch. Div. 97, 107. (s) 9 Ch. 350; and see NoHh West (o) North West Transportation Co. v. Transportation Co. v. Beattj, 12 App. Cas. Beatty, 12 App. Cas. 589. 589. (p) Pender v. Lushington, 6 Ch. D. 70. 486 THE COMPANIES ACT, 1862, SOH. I. Table A. Art. 44. Right of minority to sue. Use of company's name : — member whose name is on the register. The company have no right to inquire into the beneficial ownership, or to reject Totes on the ground that a member is by the articles restricted to so many votes altogether, and that other registered shareholders who vote are really nominees of his, and that he is thus exceeding the limited number (t). A shareholder is, as we have seen, entitled to increase his voting power by transfers to nominees. In cases where a minority are being overborne by the vote of a majority, or where some member or members are desirous of litigating some question connected with the company, and it is an open question whether they form a majority of the company or not, a question often arises as to the right to sue, and in case there be a right to sue, then as to the proper form of action. In such cases the following rules are to be found in the authorities : — 1. If an act, not ultra vires the corporation, and which therefore might be done with the approval of a majority, be done irregularly and without such approval, then the majority are the only persons who can complain (u), and the Court will not entertain the complaint except at the instance of the majority, and in a proceeding in which the corporation is plaintiff (cc). 2. In any proceeding brought to recover property of the corporation, or otherwise to enforce rights of the corporation, the corporation is the only proper plaintiff (y). Except that if (see rule 3, infra) an individual corporator sues the cor- poration to prevent it from doing something ultra vires, e.g., to restrain it from carrying put an agreement with a third party, and joins that third party as a defendant, then as a necessary incident to the first part of the relief claimed, the Court will go on to direct the repayment of money, or restoration of property paid or disposed of under the agreement (z). 3. A single shareholder suing on behalf of himself and others, or suing alone and not on behalf (a), may make the company a defendant, and may restrain the company and directors from doing an act which is illegal (h), or ultra vires the corporation, and which a majority are consequently unable to afiSrm (c). If, however, a majority are opposed to the illegal act, quwre whether the company should not be made or at any rate joined as plaintiff. 4. If the act complained of be not ultra vires, but be a wrong done to the corporation, of which therefore the corporation alone upon the principles already stated can complain, yet if the alleged wrongdoers be themselves the majority, or turn the scale of the majority, then the minority may sue by one shareholder on behalf of himself and others (d). 5. The above are general rules strictly adhered to, but not inflexible, and any case in which the claims of justice require that an action in which the company is not plaintiff should be entertained, may be made an excep- tion (e). But if the case is one in which the company ought to sue, then (Q Pender v. Lushington, 6 Ch. D. 70. («) Fobs v. Harbottlc, 2 Hare, 461 ; Macbougall v. Gardiner, 1 Ch. Div. 13. (a;) Mozley v. Alston, 1 Ph. 790; Mac- Dougall v. Qardiner, 1 Ch. Div. 13. («/) Gray v. Lewis, 8 Ch. ,1035, 1050 ; Sussell V. Wakefield Waterworks, 20 Eq. 474, 479 ; Suckott v. Gover, 6 Ch. D. 82. («) Mussell V. Wakefield Waierioorks Co., 20 Eq. 481, and cases there cited. (a) Simpson v. Wostminster Palace Hotel Co., 8 H. L.C. 712; Russell v. Wakefield Waterworks Co., 20 Eq. 481 ; Hoole v. Great Western Bailway Co., 3 Ch. 262. (6) See Natusch v. Irving, Ge time when the loss came to the knowledge of each director " is spoken of. (0 Hallmark's Case, 9 Ch. Div. 329 ; Denham ^ Co., 25 Ch. D. 752. (m) 20 Eq. 225. (n) Land Credit Co. of Ireland v. Lord Fermoy, 8 Eq. 7, 11 ; General Light Co., Marzetti's Case, W. N. 1880, 50 ; 28 W. R. 541 ; 42 L. T. 206. (o) Perry's Case, 34 L. T.'716. (p) Joint Stock Discount Co. v. Brown, 8 Eq. 381, 402; Samskill v. Edwards, 31 Ch. D. 100. THE COMPANIES ACT, 1862, SCH. I. 501 a misapplication of its funds by requiring that cheques shall be signed by Table A. certain persons, of course imply that each of those persons takes care to Art. 55. inform himself that the payment is a proper one, or if he does not so inform ■ himself is prepared to take the risk of not doing so (q). The signing of a cheque may he an adoption of the whole transaction (r). But a director cannot be held liable for being defrauded ; and, therefore, where the directors, under a power in the deed, appointed an executive committee, and the committee reported to a meeting of the directors certain cheques as having been drawn for loans, and the directors approved them, a director who was present, but denied all knowledge of the improper transaction in respect of which the cheques were in fact drawn, was held not to be liable to replace the money (s). And where dividends were paid out of capital upon accounts which had been fraudulently manipulated a director who had no knowledge and no grounds for suspecting misconduct was not liable (i). And a director cannot necessarily be fixed with hability in respect of acts of his co-directors of which he had no knowledge and in which he had taken no part (u). He is liable only for his own personal fraud, or for the fraud of his co-directors, or of any other agent of the company which he has either expressly authorized or connived at (a;). But if he be brought into Court upon proceedings against his co-directors he will probably be left to pay his own costs (y). Another considerable head as regards the liability of directors is that Misrepresenta- which concerns their responsibility to persons who have been induced to *"'"■ become shareholders by misrepresentations put forth in the prospectus of a new company. The cases dealing with this point, however, have already been noticed (z), and it will be unnecessary again to advert to them under this head. Where directors by a misrepresentation of fact induce dealings with their company, which do not bind the company, they are, as is always the case where an agent makes a misrepresentation in point of fact as to his power to bind his principal, liable personally to make good the representation they have made (a). But if the misrepresentation be not of fact, but be only a mistaken repre- sentation of the law, this is not such a representation as the directors, as agents, are personally liable to make good (b). If one director is rendered liable to the company for misapplication of the Contribution company's funds (e.ff., for advancing upon unauthorized securities) he can ^"""S maintain an action against his co-creditors for contribution (c), and the (q) Joint Stock Discount Co. v. Brown, Ch. D. 752. 8 Eq. p. 404-. («) v. supra, p. 124. (r) Bamshill v. Edwards, 31 Ch. D. 100. (a) Cherry v. Cohmial Sank of Aus- (s) Zand Credit Co. of Ireland v. Lord tralasia, L. R. 3 P. C. 24- ; Bichardson r. Fermoy, 5 Ch. 763. Williamson, L. E. 6 Q. B. 276; Weeks v. (t) Denham Sf Co., 25 Ch. D. 752. Propert, L. K. 8 C. P. 427 ; and see Collen («) Perry's Case, 34 L. T. 716. See, v. Wright, 7 E. & B. 301 ; 26 L. J. (Q.B.) however. Charitable Corporation v. Sutton, 147 ; 8 E. & B. 647 ; 27 L. J. (Q.B.) 215 ; 2 Atli. 400; followed in Att.-Gen. v. Chapleo v. Brunswick Building Society, 5 Wilson, Cr. & Ph. 1, 28. C. P. V). 331 ; 6 Q. B. Div. 696 ; Firhank (x) Weir V. Bamett, 3 Ex. D. 32; v. Humphreys, 18 Q. B. Div. 54; West Weir V. Bell, 3 Ex. Div. 238 ; Cargill v. London Commercial Bank v. JCitson, 12 Bower, 10 Ch. D. 502 ; and see ante, Q. B. D. 157 ; 13 Q. B. Div. 360. p. 127. (b) Beattie v. Lord Ebury, 7 Ch. 777 ; (y) Joint Stock Discount Co. v. Brown, L. R. 7 II. L. 102 ; Pashdall v. Ford, 2 Eq. 8 Eq. 381, 401, 406; Gray v. Lewis, 750. 8 Eq. 526, 545 ; General Exchange Bank (o) Bamskill v. Edwards, 31 Ch. D. 100. V. Horner, 9 Eq. 480 ; Denham ^- Co., 25 602 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 55. Knowledge of director. Notice, Directors do facto. liability to contribute survives in the case of death (d), and is a " liability- incurred by means of a breach of trust" so as not to be discharged by ■ liquidation proceedings (d). A director will be taken to know that which in the performance of the trust which he has undertaken to perform for the benefit of the company it was his duty to know (e). Complete knowledge of the provisions of the deed of settlement or articles of association will be ascribed to him (/). But he will not be taken to have notice of everything that may be discovered from entries in the company's books (g). Thus, where the manager of the company had, in excess of his powers, purchased the company's shares and registered transfers of them to those two of the directors who were trustees for the purchase of shares on the company's account, they were held not to be affected with knowledge of the transaction (/;). The knowledge of a director is not necessarily the knowledge of the company (i). A director is simply a person appointed to act as one of a board, with power to bind the company when acting as one of a board, but not otherwise. Because the same person is a common director of two companies, the one company has not therefore necessarily notice of everything that is within the knowledge of the common director, and which knowledge he has acquired as director of the other company, any more than it can be supposed to have knowledge of everything the director knows about his own private affairs (A). So it has been held that a company is not affected with notice through the knowledge of its sole director, when the imputation of notice would have necessarily involved that the director had disclosed to the company his own fraud (0- Casual notice brought home to the secretary, not as secretary, but as an individual, is not notice to the company (m). A stranger dealing with a company has a right to assume, as against the company, that all matters of internal management have been duly complied with (m). And, therefore, where a person effected at the office of an insurance company a policy, which was signed by three persons who were acting directors de facto, although not directors de jure, and sealed with what pur- ported to be the company's seal, it was held that the policy was binding on the company (o). And where the company's bankers received from the company's office a formal notice signed by the " secretary " that they were to pay cheques signed by " either two of the following three directors " they were entitled to pay on cheques so signed although no directors or secretary had really ever been appointed {p). (d) EamsUn t. Edwards, 81 Ch. D. 100. (e) E. p. Brown, 19 Beav. 97, 104; Esparto Trading Co., 12 Ch. D. 191, 204-. (/) Lane's Case, 1 D. J. & S. 504, 506. (fif) Hallmark's Case, 9 Ch. Div. 329; Denham ^ Co., 25 Ch. D. 752. (fi) Cartmell's Case, 9 Ch. 691. (i) Peruvian Railways Co. v. Thames, ^c. Insurance Co., 2 Ch. 617 ; Re Carew's Estate Act, 31 Beav. 39 ; Ebbw Vale Co.'s Claim, 8 Eq. 14. (A) He Marseilles Extension Hailway Co., E. p. CrSdit Fonder, 7 Ch. 161, 168, 170 ; 25 L. T. 619, 858 ; and see, as to a common manager, ffardy v. Metropolitan Zand Co., 12 Eq. 386 ; 7 Ch. 427. (0 -Re European Sank, E. p. Oriental Commercial Bank, 5 Ch. 358 ; and see Re Carew's Estate Act, 31 Beav. 39. (m) SociitS G4n4rale v. Tramways Union, 14 Q. B. Div. 424, 438. (n) Royal British Bank v. Tarqwind, 5 E. & B. 248 ; 6 E. & B. 327 ; Totterdell V. Fareham Blue Brick Co., L. R. 1 C. P. 674 ; Romford Canal Co., 24 Ch. D. 85. (o) Re County Life Assurance Co., 5 Ch. 288 ; but see Wandsworth Gas Light Co. V. Wright, 22 L. T. 404, where the third party was the solicitor to the com- pany and had notice. (p) Mahony v. East Holy ford Mining Co., L. E. 7 H. L. 869. Secus if there be constructive notice : Irvine v. Union Bank of Australia, 2 App. Gas. 366, 379. THE COMPANIES ACT, 1862, SOU. I. 503 But this principle does not apply to the case where an agent of the com- Table A. pany has done something beyond any authority which was given to him, or Art. 56. which he was held out as having (q). And, as against shareholders, acts done by directors who are not duly appointed are invalid ; and therefore a shareholder was held not liable in an action for a call, which had been made by directors appointed at a meeting at which only three of the seven subscribers of the memorandum of association were present (r). It has, however, been held by the House of Lords that a rate is not rendered invalid by the fact that it was made by vestrymen de facto but not de jure (s). And although, after much difference of opinion, it must be taken to be Bye-laws, settled, that persons dealing with a registered company are bound to acquaint themselves with the limits imposed by the deed of settlement or articles of association on the authority of the directors (t) ; yet strangers to the company dealing with directors cannot be affected by bye-laws, which may under the articles be from time to time made and varied by the directors, unless notice of such bye-laws is proved (u). (56.) The contimiing directors may act notwithstanding any vacancy in their body. Where the articles name a minimum number of directors and also contain an article in this form, a quorum of a Board consisting of continiiing directors of less than the minimum number may act (»). Secus, if the continuing directors are less than a quorum (y). Disqualification of Directors. (57.) The office of director shall be vacated, — Directors' If he holds any other office or place of profit under the tion"— °*' company ; If he becomes bankrupt or insolvent ; If he is concerned in or participates in the profits of (a) 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 a director ; nevertheless he shall not vote in respect of such contract or work ; and if he does so vote his vote shall not be counted. (o) See Todd y. Robinson, 14 Q. B. Div. 739. Jn a company whose articles provided that a director who should accept or by holding hold: any other ofiBce (omitting the words " or place of profit") under the another office : — (5.) OartmelVs Case, 9 Ch. 691. (s) Scadding v. Lorani, 3 H. L. C. 418. (r) Sowieach Coal Co. v. Teague, 5 H. (<) Ernest v. NiohoUs, 6 H. L. C. 401, & N. 151 ; doubted in Tork Tramways Co. 419 ; Fountaine v. Carmarthen Sailway ■V. WUlows, 8 Q. B. Div. 685 ; but see Co., 5 Eq. 316, 322. London .and Southern Counties Land Co., (u) Royal Bank of India's Case, 4 Cb. 252. 31 Bh. D. 223; cf. Garden GuUy Co. r. lx')SoottishPetroleumCo.,23Ch.'Div.il3. MoLister, 1 App. Cas. 39, arid see ante, p. (j/) Newhaven Local Board v. Nemhaven 192. School Board, W. N. 1885, 130, 157. 504 THE COMPANIES ACT, 1862, SOH. I. Table A. Art. 57. as to making profit in matters in which he acts for the com- pany. company should cease to be a director, the salaried secretary of the company was elected a director. After his election he ceased to receive his salary as secretary, but continued to perform the duties of that ofiSce. It was held that he was not thereby disqualified from acting as a director (z). The Companies Clauses Act, 1845, provides (sect. 85) that no director shall be capable of being interested in any contract with the company during the time he shall be a director. The Companies Acts contain no corresponding clause, and Table A. confines itself to making such interest a disqualification. Upon general rules of equity, however, the broad principle is firmly established that a person holding a fiduciary position as director with regard to a company cannot obtain for himself a benefit derived from the employ- ment of the funds of the company in any matter in which he may happen to be engaged, unless, of course, the company knows and assents. No director can, in the absence of a stipulation to the contrary, be allowed to be a partaker in any benefit whatever from any contract which requires the sanction of a board of which he is a member. He stands in a fiduciary position towards the company, and if he makes any profit on account of transactions of business when he is acting for the company, he must account for them to the company (a). It makes no difference that the profit is one which the company itself could not have obtained. The question is not whether the company could have acquired it, but whether the director acquired it while acting for the company (b). And the reason for this is, that the company have a right to the entire services of their paid directors, that they have a right to the advice of every director upon matters which are brought before the board for consideration; and that the general rule that no trustee can derive any benefit from dealing with the trust funds applies with still greater force to that state of things in which the interest of the trustee deprives the company of the benefit of his advice and assistance (c). The cases in which these principles have been acted on are numerous (d), and to these may be added all those cases in which directors have been held liable to refund moneys improperly, and without the consent of their cestuis que trust, the shareholders, paid to them by promoters out of moneys payable in respect of the promotion of the company (e), or in respect of an amalgamation (/). But it is perfectly competent to a company to stipulate that the right to these exclusive services on the part of their directors is a benefit of which they do not desire to avail themselves (g). It may be more advan- tageous to a company to have directors who can advance the interests of the («) Iron Ship Coating Co. v. Blunt, L. R. 3 C. P. 484. (a) Imperial Mercantile Credit Associa- tion V. Coleman, 6 Ch. 558, 566 (Malins, V.C, 18 W. R. 570 ; 22 L. T. 357) ; L. R. 6 H. L. 189, 198, 204 ; James t. Eve, L. R. 6 H, L. 328, 349 j Great Luxembourg Bail- way Co. T. Magnay, 25 Beav. 586. (6) Boston Co. v. Ansell, 39 Ch. Div. 339. (c) Benson v. Heathorn, 1 Y. & C. Ch. 326, 341. (rf) E. p. James, 8 Ves. 345 ; Famcett v. Whitelwuse, 1 Russ. & My. 132 ; Hichens V. Congrevo, 4 Russ. 562 ; 1 Russ. & My. 150, n. ; Benson v. Heathorn, 1 V. & C. Ch. 326 ; Beck v, Kantorwicz, 3 K. & J. 230 ; Aberdeen Railway Co. v. Blaikie, 1 Macq. 461 ; Bank of London v. Tyrrell, 27 Beav. 273; 10 H. L. C. 26; collected in 6 Ch. 563, n. ; Great Luxembourg Sail- way Co. V. Magnay, 25 Beav. 586. («) Brighton Brewery Co., Hunt's Case, 87 L. J. (Ch.) 278; 16 W. R. 472; Se London and Provincial Starch Co., 20 L. T. 390 ; Orgill's Case, 21 L. T. 221 (doubted in Hay's Case, 10 Ch. 593, 600) ; K p. Williams, 2 Eq. 216; Madrid Bank v. Belly, 7 Eq. 442 ; v. supra, p. 405. (/) General Exchange Bank v. Homer, 9 Eq. 480. (g) As in Adamson's Case, 18 Eq. 670. THE COMPANIES ACT, 1862, SCH. I. 505 company by their connection, and, by allowing them a commission, to make Table A. it worth their while to introduce business to the company, than to have the Art. 67. benefit of their advice in every proposed transaction. And, therefore, where the articles provided that a director should vacate his office if he participated in the profits of any work done for the company without declaring his interest at a meeting of the directors, it was held by Lord Hatherley, L.C., that the articles contemplated that a director might have an interest in business brought by him to the company, and Under the circumstances of that case his Lordship held that a director might retain a commission made by him on business so brought (h). This decision was on appeal reversed by the House of Lords («'), but upon the ground that the declaration of interest was not sufficiently explicit. A doubt was, how- ever, thrown out whether a provision in the articles that a director shall vacate his office if he is interested in a contract with the company without declaring his interest, is of itself sufficient to countervail the rule of equity, and impliedly to sanction the retaining of his interest by a director if he declare it. And so a clause in an agreement for the amalgamation of two companies, providing that part of the purchase-money should be paid to the directors of the selling company by way of bonus, was held not to invalidate the amalgamation (k). The reason of the rule of equity does not apply to contracts entered into before incorporation between a person then intending to be a director of the projected company, and the owners of the business which the company is formed to work. Of course such agreements might be entered into in fraud, and if so the Court would reach them. But in the absence of fraud there is wanting in such a case the first requisite which calls the rule into action, viz., the sustenance by one person of the double character of both seller and buyer (J). There is not in this Act any section corresponding to the 29th section 7 & g Vict. of the 7 & 8 Vict. c. 110. By that section a director was precluded from c. 110, s. 29. voting or acting as a director on the subject of any contract proposed to be made by or on behalf of the company in which he was interested ; and any contract (with certain exceptions) in which any director was interested was of no effect until confirmed by the shareholders at the next general or special meeting. Under this section it was held that there was no remedy against a com- pany on any such contract unless the provisions of the statute with respect to confirmation had been strictly complied with (m). But, except as allowed by the articles, no statutory enactment is required to invalidate as against the director a contract made by him with his com- pany for profit to himself. And, therefore, where a director made advances to his company on the terms that no interest should be payable, but that he should be allowed a commission or bonus on goods sold, such commission was disallowed, and repayment only of his advances with interest at 5 per cent, was ordered (ra). A director cannot come into a Court of Equity for specific performance of (A) Imperial Mercantile Credit Associa- iSouth Essex Gas Light Co., E. p. Stears, tion V. Coleman, 6 Ch. 558. Joh. 480. (0 L. E. 6 H. L. 189. (n) Cardiff Preserved Coal Co., E. p. (k) Smthall V. British Mutual, 4-c., Hill, 32 L. J. (Ch.) 154 ; 7 L. T. 656 ; and Society, 6 Ch. 614. see Central Darjeeling Tea Co., 15 L. T. (I) Albion Co. T. Martin, 1 Ch. D. 580. 234 ; Anglo-Califomian Gold Mining Co., (m) Ernest r. Nicholls, 6 H. L. C. 401 ; E. p. Williamson, 17 L. T. 164. 506 THE COMPANIES ACT, 1862, SOH. I. Table A. Alt. 68. Votes. Retirement of directors ; re-eligible. Election of directors. a contract with his company, out of which he is to make a profit, and his assignee stands in no better position (o). A prohibition in the articles against a director voting " as a director in respect of any matter in which he is personally interested," does not preclude him frota voting as a shareholder at a general meeting in respect of any such matter {p). Rotation of Directors. (58.) At the first ordinary meeting after the registration of the company the whole of the directors shall retire from office ; and at the first ordinary meeting in every subsequent year one third of the directors for the time being, or if their number is not a multiple of three, then the number nearest to one third, shall retire from office. The object of this provision is evidently to give the shareholders within a reasonable time after the formation of the company the right to elect their own directors, and not necessarily to leave them under the management of the temporary officers appointed under Arts. (52), (53), in whose selection none but the subscribers of the memorandum will have had a voice. It will be observed that the first directors are to retire at the first ordinary meeting, that under Art. (29) the first general meeting is to be held within six months after registration, and that by Art. (31) such meeting will be an ordinary meeting. By Companies Act, 1867, s. 39, a general meeting must be held within four months after registration, and if this be an ordinary meeting the first directors will then retire. It has, however, been held that an extraordinary meeting will equally be a compliance with the terms of that section ; and where, in a company governed by Table A., an extraordinary meeting was held within the four months, and special resolutions were then passed and afterwards confirmed (2) altering this article, and substituting words which postponed the first ordinary meeting for three years, it was held that this was valid (r). It is evident that the shareholders were not thereby deprived of any right of election of their directors, for, by passing the resolutions, they in fact accepted the original directors for a period of three years. (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 agree 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-eligible. (61.) The company at the general meeting at which any direc- tors retire in manner aforesaid shall fill up the vacated offices by electing a like number of persons. (0) Flanagan v. Great Western Sailway Co., 7 Eq. 116. (p) East Pant Da Mining Co. r. Merry- weather, 2 H. & M. 254; and see stipra, Art. (44), n. (3) Supra, s. 50. ()■) Lord Claud Hamilton's Case, 8 Ch. 54«. THE COMPANIES ACT, 1862, SOH. I. 507 The directors are to be chosen, as a matter of choice and selection, either Table A. by the shareholders, or, as Jegards a temporary interval, by the board of Art. 62. directors. Any agreement by -which the directors, or some of them, are to be imposed upon the shareholders by another company altogether at arm's length, and even in a position of antagonism to them, must be illegal (s). At an election of directors the return of the poll must be taken to be Poll. good until it is brought into question before a proper tribunal in a proper manner : and therefore where — at a board meeting of two directors and two persons who claimed to be directors on the ground that the declaration of the poll, which was against them, was false, — a resolution was passed (three being a quorum) to direct legal proceedings to be taken to restrain one of the persons, who had been declared elected, from acting, a bill filed there- under in the name of the company was ordered to be taken off the file (i). (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 till 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 hot 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, Number of increase or reduce the number of directors, and may also deter- ""^ *"^^' mine in what rotation such increased or reduced number is to go out of office. (64.) Any casual vacancy occurring in the board of directors Casual 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 casual vacancy occurred in February : the ordinary general meeting in March elected to the places of the directors who retired by rotation, but did not fill up the casual vacancy : held that the board had power to fill it up subsequently (m). Where the articles provide that the directors shall not be less than three ; that the board may fill up casual vacancies : and that the continuing board may act notwithstanding any vacancy in their body, quaere, when a casual vacancy occurs in a board of three can the remaining two fill it up ? (as). (65.) The company, in general meeting, may, by a special Eemoyal of resolution (a), 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 (s) James v. Eve, L. E. 6 H. L. 335. 183 ; Isle of Wight Railway Co. \. Tahmr- (<) WandswoHh, Gas Light Co. t. din, 25 Ch. Div. 320. Wright, 22 L. T. 404-. (x) York Tramways Co. v. Willows, 8 («) Munster v. Cammell Co., 21 Ch. D. Q. B. D. 690, 695. 508 THE COMPANIES ACT, 1862, SCH. I. Table A. ofSce during such time only as tlie director iu whose place he is Art. 66. appointed would have held the same if he had not been removed. (o) s. 51. Whether there is or not in a corijoration an inherent power to remove directors for whom no defined period of oflSce has been fixed, there is no such inherent power where by the contract between the members their appointment has been made for a definite period (jf). In companies governed by the Companies Clauses Act, 1845, there is, having regard to sect. 91 of that Act, power to remove (z). But there is no such power in the Companies Acts, and unless the articles of association contain a power of removal the articles must first be altered by inserting a power, and then the exercise of the power must follow (j/). Where the articles therefore (y) defined a period of office and the company passed and confirmed a special resolution, not altering the articles, but removing certain directors and appointing others, the removal was ineffectual, and the Court refused at the instance of the company to restrain the acting of the directors removed and the exclusion of those appointed in their place. But if the majority of the shareholders are in fact opposed to certain persons being directors, the Court may refuse to interfere by interlocutory injunction in favour of the persons whom the majority disapprove, notwith- standing that they have not been effectually removed (a). "It is a very different thing to say that the Court will not interfere to force a director on a company and to say that a company cannot ask the Court to restrain a particular man from acting as a director, if the resolution by which they have attempted to remove him has been ineffectual " (i). Where power is given by the articles to remove a director " for negligence, misconduct in ofBce, or any other reasonable cause," this means such a cause as shall be deemed reasonable, not by a Court of justice, but by the share- holders assembled at a meeting duly convened. In the absence of proof of direct fraud, therefore, the Court has no jurisdiction, and will refuse to in- terfere or to determine whether the decision of the meeting has or not been unduly influenced by unfounded statements (c). Quaere whether a stipulation that a director shall not be removable will be enforced by the Court (d). Directors' meetings — quorum — votes. Notice. Proceedings of Directors. (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 necessary for the transac- tion of business: questions arising at any meeting shall be decided by a majority of votes ; in ca^e of an equality of votes the chairman shall have a second or casting vote : a director may at any time summon a meeting of the directors. Every member of the board ought no doubt to have a sufficient notice of (i/) Imp. Hydropathic Co. v. ffampson, 23 Ch. Div. 1. («) Isle of Wiijlit Sitilway Co.\. Tahour- den, 25 Ch. Div.'320. (n) Ilarben y. Phillips, 23 Ch. Div. 14. (i) 23 Ch. Div. 41. (c) Inderwick v. Snell, 2 Mac. & G. 216 ; and see Hayman v. Governing Body of Hugby School, 18 Eq. 28, and cases there cited. (rf) Browne v. La Trinidad, 37 Ch. Div. 1. THE COMPANIES ACT, 1862, SOH. I. 509 each, meeting, and a director cannot waive his right to notice^ (e). And if Table A. such notice has not been given, and a few of the directors purport to over- ^rt. 66. rule the previous decision of all, without giving the rest an opportunity of attending, their act will be void (/). But if there has been an irregularity in giving notice, and the party complaining of it has not intervened at once, but has allowed action to be taken on the proceedings of the board as in fact convened, and the irregularity is one which could be cured at any moment, a Court of Equity will not interfere (g). Where the articles do not prescribe the number of directors required to Quorum ; constitute a quorum, the number who usually act in conducting the business of the company will be a quorum (h). And further, the directors having, under Art. (68), authority to delegate any of their powers to committees of their own body, delegated authority will be presumed where one or two directors act for the company in a matter properly within the scope of its ordinary business (i). And if the number of persons whose concurrence is necessary to give acting as a validity to an act did so concur with full knowledge, semhle, that it is not '^°'"''^'*- necessary that those persons shall, at the time of giving their sanction, have been all assembled together in one place under one roof {k). It was said in Collie's Claim (V), that the common law case of D'Arcy v. Tlie Tamar, cfcc, Sailway Co. (m) is not an authority, at any rate in equity, to shew that the quorum of directors must necessarily act together and at one place. For although it was there said that, to give validity to the bond, the authority for fixing the seal must have been given at a meeting when the directors were acting as a board, yet this was not necessary for the purpose of that decision ; for it was proved that, three being the requisite number of directors, the seal was afQxed when only two had given authority for it. But, quare, whether the authority of that case does not go further than this. Where the articles or deed of settlement provide that there shall be a Minimum certain number of directors, this may be either imperative («) or direc- number of tory (o). In the former case, acts done by the directors, when their number "^° *"^^' is reduced below that prescribed, will be invalid {p) [unless the articles allow a quorum of continuing directors to act (j)] at any rate as respects a matter not within the scope of the ordinary business (m) ; in the latter, a matter of ordinary business, such as the making of a call, will nevertheless be good (o). If there are such dissensions among the governing body of a company as Disputes that its affairs cannot be properly carried on, the Court will so far deviate ^™™g from the general rule of ref Qsing to interfere in matters of internal manage- ment as to grant an injunction and receiver to protect the property of the company ; but the interference of the Court will be continued only until a (e) Portuguese Copper Mines, Steele's (It) Collie's Claim, 12 Eq. 246, 258 ; of. Case, 42 Ch. Diy. 160. Exmouth Dooks Co., 17 Eci. 181. (/) Homer Mines, E. p. Smith, 39 Ch. D. Q) See 12 Eq. 259. 546. (m) L. R. 2 Ex. 158. (g) Browne Y. La Trinidad, 37 Ch. Div. 1. (n) Kirk v. Bell, 16 Q. B. 290 ; see New (h) Be Begent's Canal Iron Co., W. N. Sombrero Co. v. Erlanger, 5 Ch. Div. 73, 1867, 79; Lyster's Case, 4 Eq. 233 ; Eng- 100, 112. lish and Irish Boiling Stock Co., Lyon's (o) Thames Haven Sock Co. v. Base, 4 Case, 35 Beav. 646; 14 L. T. 507; 14 Man. & G. 552 ; see swpra, note to Art. (4). W. R. 720. (p) Alma Spinning Co., Bottomley's Case, (j) Totterdell v. Fareham Blue Brick Co., 16 Ch. D. 681. L. R. 1 C. P. 674 ; E. p. Contract Corpora- (q) Scottish Petroleum Co., 23 Ch. Div. turn, 3 Ch. 105, 116. 413, 431, 435. 510 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 67. Order of business. Chairman. Committees :- delegation of powers. Chairman of committee. Proceedings of committee. Acts of dis- qualified directors. governing body is duly appointed, and as soon as this is done the Court will leave the company again to manage its own concerns (r). If a director be excluded by his co-directors from the board, he has a personal right to compel them to admit him (s). The directors are entitled at their meetings to take their business in such order as they think proper (t). (67.) The directors may elect a chairman of their meetings, and determine the period for which he is to hold OiBSce ; but if 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 com- mittees consisting 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. A committee of the board need not consist of more than one person («). The directors themselves being agents, the rule delegatus nonpotest delegare is prima facie applicable to them (a;). But, there being under this article power to delegate, delegated authority will be presumed where one or two directors act in a matter properly within the ordinary business of the company (y). But, apart from some power to delegate, directors cannot delegate powers which they would not have possessed if they had not been expressly conferred upon them. And therefore in a company whose articles excluded Table A., and gave the directors power to purchase on behalf of the company shares in the company, this was a power which the general manager, unauthorized for that purpose, could not exercise ; and, semble, he could not have exercised it even if the directors had purported to give him authority to do so (z). (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 number to be chairman of such meeting. (70.) A committee may meet and adjourn as they think proper : Questions 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, (0 Cawley ^ Co., 42 Ch. D. 209. (w) Taurine Co., 25 Ch. Div. 118. (a;) Howard's Case, 1 Ch. 561 ; Cartmell's Case, 9 Ch. 691. (y) Totterdell t. Fareham Blue Brick Co., L. E. 1 C. V. 674 ; et v. supra, Art. (66). (») Cartmell's Case, 9 Ch. 691. (f) Fcatherstone v. Cooke, 16 Eq. 298; Trade Auxiliary Co. v. Yickers, Ibid. 303. Quai>'0 these cases, see Lindley on Comp. Law, 578 ; Harhcn v. Phillips, 23 Ch. Div. 14. (s) Pulhrook \', Eiohmond Co., 9 Ch. D. 610; Ilarbeii v. Phillips, 23 Ch. Div. 14; Bainbridge v. Smith, 41 Ch, Div. 462. THE COMPANIES ACT, 1862, SOH. I. 511 shall, notwithstanding that it be afterwards discovered that there Table A. 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 director. See the note to sect. 67, supra, p. 192. Dividends. (72.) The directors may, with the sanction of the company in Dividends :— general meeting, declare a dividend to be paid to the members in proportion to their shares. Under an article such, as this a dividend cannot be paid otherwise than in cash — as, for instance, by the issue of debentures bearing interest and redeemable by drawings (a). In a company whose shares are of equal nominal amount if a larger as between amount have been paid on some shares than on others, such payment being shares fully in respect of calls made and not in advance of calls under Art. (7), then under p";,!?^ ^ this form of article the share on which the less sum has been paid is entitled to the same and no less dividend than the share on which the larger sum has been paid. This has been so held in a case where the facts were these : The company, having a capital of £40,000, in shares of £1 each fully paid up, created and issued a further £20,000 in shares of £1 each, and called only 5s. per share on the new shares. The shares with 5s. paid was held entitled to the same dividend as the share with £1 paid (J). The expression " in proportion to their shares " cannot mean " in propor- tion to the number of their shares," taking " share " in its proper meaning. A "share," properly speaking, is that which bears a particular denoting number (sect. 22) : which may be transferred (sect. 22) : which carries a right of voting (Art. 44). These regulations contemplate (see Art. 26) that " shares " may be of different respective amounts : and if in the same company there are fully paid shares of £50 and of £1 respectively, it cannot be that the latter is to have the same dividend as the former. The words " in proportion to their shares" must therefore mean "in pro- portion to the number and amount of their shares," and the question was whether the amount to be considered is the proportionate amount of the subscribed capital, or the proportionate amount of the paid-up capital repre- sented by the share. If the member who has paid 5s. receives only one-fourth of the dividend received by the member who has paid £1, the former receives no return for his liability to pay the 15s. although the company trades in part upon the credit due to it. On the other hand, if the former receives the same dividend as the latter, he pockets dividend on his 15s. while he may be employing the money elsewhere in some other investment. The result of the decision is that under articles in this form dividends are payable in proportion to the amount of the subscribed capital, not of the paid-up capital. (a) Wood V. Odessa Waterworks Co., Kep. 174-; 9 Ct. Sess. Cas. 4th Series, 198 ; 42 Ch. D. 636. 8 App. Cas. 65. See also Wilkinson y. (6) Oakbank Oil Co. v. Crum, 19 Sc. L. Cwmmins, 11 Hare, 337. 512 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 73. as between tenant for life and remainder' payable out of profits. What arc profits. The same principle has been followed by the House of Lords as to surplus assets remaining after all debts haye been paid and all subscribed capital returned (c). Such assets are part of the capital divisible in proportion to the members' interests in capital, and this is in proportion to the amount of their shares, not to the amount paid upon them. When a settlor directs or permits the subject of his disposition to remain as shares or stock in a company which has the power either of distributing ' its profits as dividend or of converting them into capital, and the company validly exercises this power, such exercise of its power is binding on all persons interested under him in the shares, and consequently what is paid by the company as dividend goes to the tenant for life, and what is paid by the company to the shareholder as capital or appropriated as an increase of the capital stock in the concern enures to the benefit of all who are interested in the capital. In a word, what the company says is income shall be income, and what it says is capital shall be capital (d). Profits retain the character of income till they are converted into capital. Payments out of accumulated profits of past years are not necessarily capital : the inquiry whether they have been converted into capital or not is one of fact upon the circumstances of each case {d). The inquiry as to the time when the profits were earned by the company is immaterial as between tenant for life and remainderman. Their rights are determined by the time not at which the profits are earned by the com- pany, but at which they are by the action of the company made divisible among the members (d). In the case referred to {d) the Court of Appeal upon the facts held the bonus to be income and to belong to the tenant for life. The House of Lords approved the principles of law laid down by the Appeal Court, but on the facts held that the profits had been converted into capital. In this case a long series of previous authorities which for brevity are not cited here, as they will all be found cited in the report of Sproule v. Bouch (d), were digested, and from their somewhat conflicting results were extracted the true principles to be applied. Where a testator's estate becomes entitled to new shares issued in respect of the capitalization of accumulated profits, but the will does not authorize the trustees to hold such new shares, they may be in a position to secure the benefit of them for the estate by taking the shares and realising them as speedily as possible (e). (73.) No dividend shall be payable except out of the profits arising from the business of the company. The profits of an undertaking are not such sum as may remain after the payment of every debt (/), but are the excess of revenue receipts over expenses properly chargeable to revenue account. As to what expenses are properly chargeable to capital and what to revenue it is necessarily impossible to lay down any general rule. In many cases it may be for the shareholders to determine this for themselves provided the determination be honest and within legal limits (g). Where expenses, properly chargeable to capital, have been paid out of (c) Sirch V. Cropper, 14 App. Cas. 525. Id) Sproule v. Bo%u:h, 29 Ch. Div. 635, 653 ; 12 App. Cns. 385 ; Sugdcn v. Alsbury, W. N. 1890, 112. (e) Banting v. Pu^h, W. N. 1887, 143. (/) Mills V. Northern Railway of Buenos Ayres Co., 5 Ch. 621, 631. (S) Lee V. Neuchatel Asphalte Co., 41 Ch. Div. 1, 18, 21, 25. THE COMPANIES ACT, 1862, SOH. I. 513 revenue, the compaBy are justified in recouping the revenue account at a Table A. subsequent time out of capital (h). Art. 73. The proper and legitimate way of arriving at a statement of profits is, to take the facts as they actually stand, and, after forming an estimate of the assets as they actually exist, to draw a balance so as to ascertain the result in the shape of profit or loss. If this be done fairly and honestly, without any fraudulent intention or purpose of deceiving any one, it does not render the dividend fraudulent that there was not cash in hand to pay it, or that the company were even obliged to borrow money for that purpose. And the fact that an estimated value was put upon assets which were then in jeopardy and were subsequently lost does not render the balance-sheet delusive and fraudulent («). " EeaUsed profits," which was the expression in the articles of the Oxford Building Society {k), means " profits, tangible for the purpose of division." The way in which Table A. contemplates that the profits will be arrived at will be seen from Art. (80). But if a dividend be declared without proper investigation of the financial position of the company, and no profit and loss account be prepared, but only an account of receipts and payments, making no allowance for risks, the burden is on the directors to shew that the dividend was properly de- clared, and in default a director will be ordered to refund the dividend he has received (I). If directors pay dividends out of capital, they may be liable for the whole amount so misapplied (m). Capital may be lost in either one of two ways, which may be distinguished Dividends as loss on capital account, and loss on revenue account. If a shipowning '^^^t^ capital company's capital be represented by ten ships with which it trades, and one ^ ^ "^ ' is totally lost and is uninsured, such a loss would be what is here called a loss on capital account. But if the same company begins the year with the ten ships, value say £100,000, and ends the year with the same ten ships, and the result of the trading, after allowing for depreciation of the ships, is a loss of £1000, this would be what is here called a loss on revenue account. Where a loss on revenue account has been sustained, there is of course no profit until that loss has been made good either by set-off of previous undivided profits still in hand, or by profit subsequently earned. But until Lee V. Neuchatel Asphalte Co. (n) the question was open whether a company under the Companies Acts, which has lost part of its capital by loss on capital account, can continue to pay dividends until the lost capital has been made good. Lee V. Neuchaiel Asphalte Co. (n) has now shewn the true principle to be, that capital account and revenue account are distinct abcounts, and that for the purpose of determining profits you must disregard accretions to or diminutions of capital. Suppose I buy £100 Consols at 97, and at the expiration of a year they have fallen to 94, is my income £3 or nothing ? if nothing, then if at the expiration of the year they had risen to par, my income would by parity of reasoning have been £6, not £3. Is the result affected by the question whether at the end of the year I am or am not about (A) MUls T. Northern Sailway of Buenos (l) Sance's Case, 6 Ch. 104 ; v. supra, Ayres Co., 5 Ch. 621 ; and see Sbole v. p. 500. Great Western Railway Co., 3 Ch. 262, (m) National Funds Co., 10 Ch. D. 118; 269. Oxford Building Sac., 35 Ch. D. 502 ; Leeds (i) Stringer's Case, i Ch. 475 ; Glasgow Estate Co. t. Shepherd, 36 Ch. D. 787. Bank V. MacMnrmn, 19 So. L. R. 278 ; 9 As to the applioation of the Statute of Ct. of Sess. Cas. 4th Series, 535 ; quoted in Limitations, see ante, p. 411. 35 Ch. D. 506. (n) Lee v. Neuohatel Asphalte Co., 41 (A) 35 Ch. Div. 502. Oh. Div. 1. 2 L 514 THE COMPANIES ACT, 1862, SCH. I. Table A. Art. 73. Preferential dividends. Vendor's guarantee of dividends, to sell my Consols ? Suppose n tramway company lays its line -when materials and labour are both dear, both subsequently fall, and the same line could be laid for half the money, and as an asset (independent of deterioration from wear) would cost for construction only half what it did cost. Is the company to make this good to capital before it pays further dividend ? If so, then if the cost of materials and labour had risen after the line was laid might not the company have divided as dividend this accretion to capital ? Upon such a principle dividends would vary enormously, and sometimes inversely to the actual profit of the concern. If revenue account be treated as a distinct account, these difSculties dis- appear (o), and subject to the difficulty, which must be encountered, of dis- criminating between revenue charges and capital charges, a safe and intelli- gible principle is arrived at. The creditors of the company are entitled to have the capital account fairly and properly kept ; but they are not entitled to have losses of capital on capital .account made good out of revenue. It is no doubt true, that before arriving at revenue at all, there are payments which must be made good to capital, on account of capital wasted or lost in earning the revenue. For instance, in the common case of leaseholds, which are a wasting property, the whole of the rental will not properly be income ; in the case of colliery properties, the difference between the price at which the coal is sold, and the cost of working and raising it, will not all be income, for there must also be a deduction made in favour of capital representing the diminished value of the mine by reason of its containing so many less tons of coal (p); in the case of a tramway company you will not have arrived at net profit before you have set apart a sum to make good deterio- ration (q). But when all proper allowances have thus been made in favour of capital, the balance is revenue applicable for payment of dividend. And as regards wasting properties it will be seen presently that it is not of necessity that depreciation by waste shall be brought in as a debit to revenue account (r). In the absence of anything to the contrary in the company's regulations the members are entitled to the profits in proportion to their shares in the concern; and their rights in this respect cannot be varied by a majority adversely to a dissentient minority. In the absence therefore of power in its original memorandum and articles, or one of them, a company cannot issue preference shares, and if it have a limited power it cannot enlarge it (s). Where a company having power so to do, issued preference capital carrying a dividend at 10 per cent, per annum, payable half-yearly, and with no words to restrict the preference shareholder to the profits of the current year, it was held that if the profits of any one year were insufficient to pay the 10 per cent, in full, the deficiency was, as between the preference and ordinary shareholder, to be made good out of subsequent profits, (t) following Henry v. Great Northern Bailway Co. («). Upon a sale of a business to a company it is a common arrangement that the vendor as evidence of his confidence in the concern guarantees a minimum dividend for a certain number of years. If the company is wound up during the currency of the guarantee, two questions may arise : first, whether the winding-up puts an end to the guarantee ; and secondly, whether as between (i>) See also note to Comp. Act, 1880, s. 3. (p) Knowles v. McAdam, 3 Ex. D. 23. But seo Coltness Iron Co. v. Black, 6 App. Cas. 315. ( I e 35 8 if S: 8 rO « ^(=1 £^3^ r if-g |§ S'^Sag:! 8»s 8 a.O„ flil II ^ "1 « e :g Q « gg^" Qq 53 ^ "-^ ~^ • (d CO ru ' §11 -8 S E^ „ _ O g O •s. g ^g^g sO~- qj '+^ !S 2 0* s s a. I 2 g as •S i S §» Si o Rj4 j a y 2 S Ph S fa w a o Phi-^ id S 9 524 THE COMPANIES ACT, 1862, SOH. I. Tables. TABLE B. (z). Table op Pees to be paid to the Eegibtbab of Joint Stock Companies by a Company having a Capital divided into Shares. For registration of a company whose nominal capital does not exceed £ «. d. £2000, a feelof - - - - - - - - -200 Tor registration of a company whose nominal capital exceeds £2000, the above fee of £2, with the following additional fees regulated according to the amount of nominal capital ; (that is to say,) £ 8. d. For every £1000 of nominal capita], or part of £1000, after the first £2000, up to £5000 - - - - 1 For every £1000 of nominal capital, or part of £1000, after the first £5000, up to £100,000 - - - - 5 For every £1000 of nominal capital, or part of £1000, after the first £100,000 - - - - - -010 For registration of any increase of capital made after the first registration of the company, the same fees per £1000, or part of a £1000, as would have been payable if such increased 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 afterwards, any greater amount of fees than £50, 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 companies as are by this Act exempted from payment of fees in respect of registration under this Act (a), the same fee as is charged for registering a new company. For registering any document hereby required or authorized to be regis- tered, other than the memorandum of association - — - — 5 For making a record of any fact hereby authorized or required to be recorded by the registrar of companies, a fee of - - - 5 Under 51 Yict. c. 8, s. 11, and 52 Vict. c. 7, s. 16, an ad valorem stamp duty of two shillings for every hundred pounds and fraction of one hundred pounds is now payable upon the amount of the nominal share capital of a company registered under the Companies Acts with limited liability. And the like duty upon any increase of capital. TABLE 0. (z). Table of Fees to be paid to the Kegistrar ot Joint Stock Companies by a Company not having a Capital divided into Shares. For registration of a company whose number of members, as stated in the £ s. d. articles of association, does not exceed 20- - - - -200 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 £5, with an additional 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 members 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 - - - - - -050 Provided that no one company shall be liable to pay on the whole a greater fee than £20 in respect of its number of members, taking into account the fee paid on the first registration of the company. For registration ot any existing company, except such companies as are by this Act exempted from payment of fees in respect of registration under this Act (a), the same fee as is charged for registering a new company. For registering any document hereby required or authorized to be regis- tered, other than the memorandum of association - - - 5 For making a record of any fact hereby authorized or required to be recorded by the registrar of companies, a fee of - - 5 («) ss. 17, 71. (a) ss. 189, 209. THE COMPANIES ACT, 1862, SCH. II. 525 FOEM D. FomD. Form of Statement referred to in Part III. of the Act (V). * The capital of the company is , divided into shares of each. The number of the 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 bankers, £ Other securities, £ * If the company has no capital divided into shares, the portioa of the statement relating to capital and shares must be omitted. SECOND SCHEDULE (e). FOEM A. Memoeandum of Association of a Company limited by Shares (d). 1st. The name of the company is " The Eastern Steam Packet Company, Limited." 2nd. The registered office of the company will be situate in England. Srd. The objects (e) 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 are 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. [See next page. (fi) ss. 44, 71. tive Government Assurance Society, 1 Ex. (c) 5. 71. Div. 20, 88; Eotherham Alum Co., 25 Ch. (d) s. 8. Div. 103 ; neither even if A. B. be a (e) One object often introduced into member do the articles constitute a con- the memorandum is " To adopt and carry tract with the company, but only a con- jnto eflfect an agreement dated, &c., and tract between hira and the other members : made between A. B. of the one part, and Browne v. Za Trinidad, 37 Ch. Div. 1 ; and C. D., a trustee for the intended company, see Comp. Act, 1867, s. 25, n. of the other part." Qiuere, the effect of It does not follow that the company be- this in the absence of a substituted or new comes bound by the contract because it acts agreement after incorporation. The com- under the mistaken belief that it is bound: pany not being in existence at the date of Northumberland Avenue Co., 33 Ch. Div. 16. the agreement cannot ratify the contract : Care should be taken in the preparation Kelner v. Baxter, L. E. 2 C. P. 174 ; Scott of such an agreement to protect C. D. from V. Lord Ebury, Ibid. 255 ; Melhado v. Porto personal liability ; for, unless the contract Alegre Bailway Co., L. R. 9 C. P. 503 ; be so worded as to exclude this, C. D. sign- Empress Engineering Co., 16 Ch. Div. 125; ing on behalf of a non-existent principal is Northumberland Avenue Hotel Co., 33 Ch. personally liable, even though the company Div. 16 (although it may after incorpora- purport subsequently to ratify the con- tion enter into a new contract in the terms tract : Kelner v. Baxter, L. R. 2 C. P. 174 ; of the old one, or may upon equitable Scott v. Lord Ebury, Ibid. 255. grounds become equitably bound by the (/) As to what these words will include, terms of the contract, see Touche v. Metro- see Simpson v. Westminster Palace Hotel politan Railway Warehousing Co., 6 Ch. Co., 2 D. F. & J. 141, 146, 152 ; 8 H. L. 671 ; Spiller v. Paris Skating Sink Co., 7 C. 712 ; Joint Stock Discount Co. v. Brown, Ch. D. 368 ; Empress Engineering Co., 16 3 Eq. 139, 150 ; Peruvian Railways Co., Ch. Div. 125; Howard v. Patent Lvory Co., 2 Ch. 617; Baglan Hall Colliery Co., 38 Ch. D. 156); and A. B. not being a 5 Ch. 346, 356; Guinness v. Land Cor- party to the memorandnm and articles, poration of Ireland, 22 Ch. Div. 349 ; Stud- these do not constitute a contract between dert v. Grosvenor, 33 Ch. D. 528, 538 ; Small him and the company : Melhado v. Porto v. Smith, 10 App. Cas. 119, 129 ; and see Alegre Bailway Co., L. E. 9 C. P. 503 ; Lei/child's Case, 1 Eq. 231, 235 ; Taunton Pritchard's Case, 8 Ch. 956 ; Eley v. Posi- v. Royal Insurance Co., 2 H. & M. 135. 526 THE COMPANIES ACT, 1862, SCH. II. Form B. 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. John Jones of in the county of merchant 200 " 2. John Smith of in the county of _ 25 " 3. Thomas Green of in the county of _ 30 " 4. John Thompson of in the county of _ _ 40 "5. Caleb White of in the county of _ _ 15 " 6. Andrew Brown of in the county of _ - 5 "7. Csesar White of in the county of Total shares taken - 10 325 Dated the 22nd day of November, 18 . Witness to the above signatures, A. B., No. 13, Hute Street, Clerkenwell, Middlesex. FOEM B. Memobandum and Aetioles of Association of a Company limited by Guarantee, and not having a Capital divided into Shares (jg). 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 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 (ft) 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 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. 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 " 1. John Jones of in the county of merchant. " 2. John Smith of " 3. Thomas Green of " 4. John Thompson of "5. Caleb White of " 6. Andrew Brown of " 7. CcBsar White of Dated the 22nd day of November, 18 Witness to the above signatures, A. B., No. 13, Hute Street, Clerkenwell, Middlesex. ((7) 63. 9, 14. (A) See p. 525, note (/). THE COMPANIES ACT, 1862, SCH. II. 527 Articles of Association to accompany preceding Memobandum of Form B. Association (i). (1.) The company, for the purpose of registration, is declared to consist of five hundred members (ft). (2.) The directors hereinafter mentioned may, whenever the business of the associa- tion 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 insures any ship or sha^e in a ship in pursuance of the regulations here- inafter contained (I). 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 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. (6.) The above-mentioned general meetings shall be called ordinary meetings ; all other general meetings shall be called extraordinary. (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 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 registered ofioe 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 requisitiouists, 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 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 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 declaration of a dividend, unless 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 adjourned 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 (0 s. 14. Nevill, 19 Q. B. Div. 110; Ocean Associa- (K) As to notice of increase of number, tion v. Leslie, 22 Q. B. D. 722, n. ; Great see s. 34. Britain Association v. Wyllie, 22 Q. B. Div. (J) See United Kingdom Association v. 710. 528 THE COMPANIES ACT, 1862, SOH. II. Form B. any adjourned meeting other than the business left unfinished at the meeting - from which the adjournment tooli 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 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 under the hand of the appointor, if such appointor is a corpora- tion, 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 extraordinary, as the case may 5e] 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 ptirposes of this Act [sie] 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 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 regulation 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 which 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 he their duty to examine the same with the aooounts and vouchers relating thereto. (33.) The audit committee shall have a list delivered to them of all books kept by the oo,mpany, and they shall at all reasonable times have access to the books THE COMPANIES ACT, 1862, SCH. 11. 529 and accounts of the company : they may, at the expense of the company. Form C. employ aocouutants 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. (.84:.) 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 par- ticulars required by these regulations 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 explanation or information have been given by the directors, and whether they have been satisfactory, and such report sliall be read together with the report of the directors at the ordinary meeting. Notices. (35.) A notice maybe served by the company upon any member eitlier 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 containing the notice was properly addressed, and put into tlie post-office. Winding-up. (37.) The company shall be wound up voluntarily whenever an extraordinary resolu- tion, as defined by the Companies Act, 1862 (m), 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 couaty of " 7. Csesar White of in the county of Dated the 22nd day of November, 18 . Witness to the above signatures, A. B., No. 13, Hute Street, Clerkenwell, Middlesex. POEM C. Memobandum and Abticles of Association of a Company limited by Guarantee, and haviDg a Capital divided into Shares (?i). Memorandum of Association. 1st. 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 " travelling in the Highlands of Scotland, by providing hotels and conveyances by " sea and by land for the accommodation of travellers, and the doing all such other " things as are incidental or conducive (o) to the attainment of the above object. 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 twenty pounds. (m) s. 129. (») ss. 9, 14. (o) See p. 525, note (/). 2m 530 THE COMPANIES ACT, 1862, SCH. 11. Form D Wb, 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. 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 " 1. John Jones of in the county of merchant. " 2. John Smith of " 3. Thomas Green of " 4. John Thompson of " 5. Caleb White of " 6. Andrew Brown of " 7. OiESar White of Dated the 22nd day of November, 18 . Witness to the above signatures, A. B., No. 13, Hute Street, Clerkenwell, Middlesex. Articles of Association to accompany preceding Memorandum of Association (p). 1. The capital of the company 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. i. 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. Number of Names, Addresses, and Descriptions of Subscribers. Shares taken by each Subscriber. " 1. John Jones of in the county of - - 200 " 2. John Smith of in the county of - - 25 " 3. Thomas Green of in the county of - - 30 " 4. John Thompson of in the county of - - 40 "5. Caleb White of in the county of - - 15 " 6. Andrew Brown of in the county of - - 5 "7. Cffisar White of in the county of - - Total shares taken - - 10 325 Dated the 22nd day of November, 18 . Witness to the above signatures, A. B., No. 13, Hute Street, Clerkenwell, Middlesex. FORM D. Memorandum and Aetiolbs of Association of an unlimited Company having a Capital divided into Shares (g). Memorandum of Association. 1st. The name of the company is " The Patent Stereotype Company." 2nd. Tlie registered office of the company will be situate in England. 8rd. The objects for which the company is established are " ttie working of a patent method of founding and casting stereotype plates, of which method John Smith, of London, ia the sole patentee " (c). (fi) o. 14. ()•) As to what these words will include, (5) ss. 10, 14. see LeifchilcCs Case, 1 Eq. 231, 235. THE COMPANIES ACT, 1862, SCH. II. 531 We, the several persons whose names are subscribed, are desirous of being formed into_ Form D, a company, in pursuance of this memorandum of association. Names, Addresses, and Desci'iptions of Subscribers. " 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 Dated 22nd day of November, 18 Witness to the above signatures, A. B., No. 20, Bond Street. 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 Middlesex. merchant. Articles of Association to accompany the 'preceding Memorandum of Association (s). Capital of the Company. The capital of the company is two thousand pounds, divided into twenty shares of one hundred pounds each. Application of Table A. All the Articles of Table A. (i) shall be deemed to be incorporated with these articles, and to apply to the company. Wb, 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 Shares taken by 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. Abel Brown of in the county of - - 1 5 2 2 3 4 1 Total shares taken 18 Dated the 22nd day of November, 18 . Witness to the above signatures, A. B., No. 20, Bond Street, Middlesex. (s) s. 14. (t) Supra, pp. 445-523. 2m2 532 THE COMPANIES ACT, 1862, SCH. II. Form E. 50 H 2 I < n s;; VI -*3 as .s M ■ss a e4 a e 1 n a .a a ■a S" "I ai5 35 «5e -avow 111! "III " § s ^ PmE-i O eS 2 P IB S P °^ CO p CD OJ O la "5 a ^^^^ S «ja 3 s "^ a o o«h;h fc. ea 3 s ■S •ft'*' §5 OS O d^ .2 I g H "S . "d JgS^ . « 0) S B 2, ffi o .0 +3 S3 ^^ *s d IT ^ = " as ^. SS, 3^ Si.-. •^ ^ da "^ 3 S H C ^- 89. 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 ; 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 Principal Act as amended by this Act. 3. This Act shall come into force on the first day of September Commence- one thousand eight hundred and sixty-seven, which date is herein- "'^°' "^ "*■"*• after referred to as the commencement of this Act. Unlimited Liability of Directors. 4. Where after the commencement of this Act a company is Company may formed as a limited company under the Principal Act, the liability ^j^^ unlimited of the directors or managers of such company, or the managing liability. director, may, if so provided by the memorandum of association, be unlimited. 5. The following modifications shall be made in the thirty-eighth Liability of section of the Principal Act, with respect to the contributions to andpres'ent^ be required in the event of the winding-up of a limited company where liability under the Principal Act, from any director or manager whose liability is, in pursuance of this Act, unlimited. (1.) Subject to the provisions hereinafter contained, any such director or manager, whether past or present, shall, in 536 THE COMPANIES ACT, 1867. Sect. 6. 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 manager who has ceased to hold such office for a period of one year or upwards prior to the commencement of the wind- ing-up shall exceed the amount (if any) which he is liable to contribute as an ordinary member of the com- pany : (3.) No contribution required from any past director or manager in respect of any debt or liability of the company con- tracted after the time at whicli he ceased to hold such office shall exceed the amount (if any) which he is liable to contribute as an ordinary member of the com- pany : (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 member, unless the Court deems it necessary 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. Director with 6. In the event of the winding-up of any limited company, the bSity 'may '"' Court, if it think fit, may make to any director or manager of have set-off as gug]^ company whosc liability is unlimited the same allowance by of25&26Vict. way of set-off as under the one hnndred and first section of the "• ^^- Principal Act it may make to a contributory where the company is not limited. Notice to be 7. In any limited company in which, in pursuance of this Act, rector *on his ^^^ liability of a director or manager is unlimited, the directors or election that managers of the company (if any), and the member wlio proposes will be un- any person for election or appointment to such office, shall add to such proposal a statement that the liability of the person hold- ing such office will be unlimited, and the promoters, directors, managers, and secretary (if any) of such company, or one of them, shall before such person accepts such oflice 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, 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 limited. THE COMPANIES ACT, 1867. 537 such default, but the liability of the person elected or appointed Sect. 8. shall not be affected by such default. 8. Any limited company under the Principal Act, whether Existing J? 1 1 c o 1 /. 1 ■ » 1 limited oom- lormed betore or alter the commencement oi this Act, may, by a pany may, by special resolution (a), if authorized so to do by its regulations, as tfon'^^jke"^"" originally framed or as altered by special resolution (a), from time liability of to time modify the conditions contained in its memorandum of as- limited!' ""' sociation (j3) so far as to render unlimited the liability of its direc- tors 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, 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, and shall be punished accordingly. («) Comp. Act, 1862, ». 51. (^3) Comp. Act, 1862, s. 12. Reduction of Capital and Shares (a). 9. Any company limited by shares may, by special resolution (/3), Power to com- so far modify the conditions contained in its memorandum of capital. association, if authorized so to do by its regulations as originally framed or as altered by special resolution (j3), as to reduce its capital (-y) : but no such resolution for reduciug the capital of any company shall come into operation until an order of the Court is registered by the Registrar of Joint Stock Companies, as is hereinafter mentioned (S). (a) Gen. Order, March, 1868, Rules (7) Comp. Act, 1862, =,. 12. 2-20. (S) Infra, s. 15. (18) Comp. Act, 1862, s. 51. The Companies Act, 1862, did not allow reduction of capital at all by com- Reduction of panics governed by the Act. Under Part VII. s. 179, et seq., a company <>*?"*'• previously unlimited might register under the Act as limited, and thus reduce the liability on shares ; but this, subject to ss. 194 and 196 (5). The Companies Act, 1867, empowers a company limited by shares " to reduce its capital," an expression quite general, and which, until the year 1877, when Jessel, M.B., decided the Mhbw Vale Co.'s Case (b), was understood to include reduction by reducing paid-up capital, including the writing oflF lost capital. In Muntz Metal Co. (c) in 1870, and in Credit Fancier of England (d) in 1871, schemes for reduction of paid-up capital were sanctioned by the Court. In 1877, however, Jessel, M.E., held in the Mhw Vale Co.'s Case (5) that the Act of 1867 allowed only reduction of liability in respect of the amount unpaid on a share, and not reduction of the amount paid upon it. The Act of 1877 did not necessarily recognize this decision as law, and (b) 4 Ch. D. 827; and see Kirkstall (0) 18 W. R. 1064; 39 L. J. (Ch.) 704 ' Brewery Co., 5 Ch..D. 536. (d) 11 Eq. 356. 538 THE COMPANIES ACT, 1867. Sect. 9, Cotton, L.J., has since (e) expressed a doubt whether it was correct. The Act of 1877 recited that doubts were entertained, and then enacted that " capital " in the Act of 1867 should include paid-up capital. In reduction of capital (except where otherwise provided by sect. 4 of the Act of 1877) the creditor is amply protected by sections which proTide in substance that if he objects he must either be paid or his debt must be secured ; and the reduction is carried out under an order of the Court which must be obtained. The Companies Act, 1877, allows of reduction by : — (1) Cancelling lost capital ; (2) Paying off capital in excess of the wants of the company ; (and as to either (1) or (2), either with or without extinguishing or reducing the liability remaining on the shares) ; and (3) Cancelling shares which have never been issued. In case (1), if liability in respect of impaid capital is not diminished, and paid-up capital is not repaid, creditors are not entitled to object ; but the order of the Court is still necessary as under the Act of 18G7. In any other case under (1) and (2) the whole proceedings under the Act of 1867 are necessary. In case (3) no consent of creditors or order of the Court is necessary. The Companies Act, 1879, extends to companies registered as unlimited under the Act of 1862 the power which, as above mentioned, unlimited com- panies not registered under that Act previously enjoyed, viz., the poivec to register as limited. It also provides that companies already registered as limited under that Act may re-register. The effect of this last provision is not obvious. The Companies Act, 1880, gives a power of so-called reduction of paid-up capital by "returning" accumulated profits to the shareholders with the right to call it again. This remarkable statute is discussed in a note to the Act itself. It need not be further mentioned for the purposes of the present note. Meaning of Tj^e word " capital " may have any one of at least three meanings— viz. : — (1) Nominal capital : the amount named in the memorandum of association, say, £100,000 in 10,000 shares of £10 each. (2) Issued capital, say 5000 shares of £10 each, part of the above nominal capital. (3) Paid-up capital, say £25,000, being £5 per share on each of the above 5000 shares. In which one of these meanings it is used in the Acts, it is very difllcult to say : probably it is used sometimes in one and sometimes in another. In the Dronfield Go. (/), Jessel, M.E., pointed out that in sect. 12 of the Companies Act, 1862, and sect. 9 of the Companies Act, 1867, it must mean not merely " nominal capital," but " issued capital " or " trading capital." By sect. 8 of the Companies Act, 1877, the word as used in the Companies Act, 1867, is to " include " paid-up capital ; and looking at sect. 5 of the Companies Act, 1877, it must include nominal capital, for that is the only thing reduced when you reduce capital by cancelling unissued shares. The result, therefore, would seem to be that the Acts of 1867 and 1877 in fact cover all three meanings. Eeduction of capital then by : — (1) Diminishing the nominal amount of the shares so as to leave a less sum unpaid ; (e) Bannatym v. Direct Spanish Tele- (/) 17 Ch. D. 76, 86. See also Kirkstall graph Co., 34 Ch. Div. 287, 302. Bretoery Co., 5 Ch. D. 535. THE COMPANIES ACT, 1867. 539 (2) DiminisHng the nominal amount of the share by writing off or repay- Sect. 9. ing paid-up capital, leaving the same amount unpaid; (3) Diminishing the nominal amount of the share by combining (1) and (2) ; (4) Diminishing the number of shares by cancelling unissued shares ; are all within the Companies Acts, 1867 and 1877, and can be effected, but only by obserying the provisions of those Acts. The vexed question of the legality of the purchase by a company of its Purchase by own shares is at last set at rest by the decision of the House of Lords in l°^^^J^.°^ ''^ Trevor v. Whitworth (g), and the principle of the decision in Se JDronfield Silkstone Go. (h), which for some years created perpetual difllculty in advising upon operations with respect to capital by limited companies under these Acts, is gone. A power in the articles for a company to purchase its own shares is in contravention of the statute and is void (g), and Lord Macnaghten is of opinion (i), and the Scotch Court has decided ia the similar matter of issue of shares at a discount (Jc), that a power in the memorandum would be void also. The grounds of this decision and the principles which it afBrms may be summarized thus : (1) Purchase by a company of its own shares is not forfeiture or surrender or anything like it. Forfeiture is valid, the Act recognizes it Q) : the company parts with no money, but resumes dominion of a share upon which something has been paid, and this because a further payment cannot be obtained. Surrender may in many cases be valid, e.g., where the company could forfeit and the member dispenses with the for- malities. Each case of surrender must be determined upon its merits (m) : at any rate the company parts with no consideration. Where money is paid or consideration given by the company it is a purchase, and purchase is neither forfeiture nor surrender. (2) The company cannot be a member of itself (n). (3) The purchase of its own shares is a reduction of capital. The Acts of 1867 and 1877, in sanctioning reduction of capital under certain conditions and with certain restrictions, impliedly prohibit it unless the pre- scribed conditions and restrictions are observed. (4) The Acts impliedly prohibit the return of capital to members. The payment of capital to one shareholder is just as much a reduction of capital and just as detrimental to the interests of creditors as the payment of the same amount to all the shareholders rateably. (5) The transaction cannot be justified as "in- cidental " to the company's objects, e.g., in a private company where it is desired to keep the shares in the hands of a few. To the creditor whose interests the Act intends to protect it makes no difference what the object of the purchase is. The reduction of capital made when the company purchases its own shares is, (1) a reduction of paid-up capital, and (2) a reduction of issued capital, and (3), except where the shares are fully paid, a reduction of unpaid capital. For as to paid-up capital the company parts with money, and as to issued capital the shares cease to be in issue, since the company cannot be a member of itself, and as to unpaid capital there is no individual external to the company who is now liable for calls on the shares. The earlier cases are, after the decision in Trevor v. Whitworth, (g), of less importance, but for convenience of reference they are retained here. (g) Trevor v. Whitworth, 12 App. Cas. Co., Ct. of Sess. Gas., 4th series, vol. xvi. 409 ; 6en. Property Investment v. Mathe- p. 271. son, Ct. of Sess. Cas., 4th series, vol. xYi. (0 Comp. Act, 1862, s. 26., p. 282. (m) Dronfield. Co., 17 Ch. D. 85 ; Trevor (K) 17 Ch. Div. 76. v. Whitworth, 12 App. Cas. 409, 418. (0 12 App. Cas. 436. (n) 17 Ch. D. 83 ; 12 App. Cas. 424. (h) Klench t. East India Exploration 540 THE COMPANIES ACT, 1867. Sect. 9. The decision in Hope v. International Financial Society (o) went only to this, that a company which has not by its memorandum and articles of association power so to do, cannot traffic in its own shares by purchasing them with a view to selling them again, and that therefore the acquisition of its own shares by such a company must be improper, because either it is going to issue them again, in which case it is trafficking in its own shares, which, ex hypothesi, it has not power to do, or it is not going to issue them again, in which case it is reducing its capital. But it did not decide whether a company which has power to traffic in its own shares can do so, notwith- standing the question of reduction of capital. The decision in Ee Dronfield Co. (p) was really no decision on the general question, although the grounds of the judgment had a much wideu effect than the Court probably contemplated. It was conceded there on all hands that forfeiture of shares for non-payment of calls, i.e. forfeiture adversely to a shareholder and without paying anything for the shares, is legal, although no doubt it results pro tanto in a reduction of the capital of the company, since, ex hypothesi, the shares are not fully paid, and the company loses the liability (if worth anything) of the shareholder. The decision did not necessarily do more than carry the same principle further to this extent, that if there is sufficient power in the original articles, a shareholder with whom there is a dispute, or Of whom the other shareholders desire to get rid, may be allowed to surrender his shares to the company, and to receive out of the company's assets a sum of money for so doing. This extension, however, could only be made by adopting principles which the House of Lords has now disaffirmed. The order itself, as was pointed out in the House of Lords in Trevor v. Whitworth (q), may be supported without adopting the reasoning on which the Court of Appeal proceeded. For Ward's name had been removed from the register seven years before : in the interval the company had been very prosperous and had paid large dividends : there was no creditor whose debt had been incurred while Ward was a member, and the application was to render Ward liable by rectification of the register under the exercise of a judicial power given to the Court "if satisfied of the justice of the case." The liquidator was, therefore, invoking a statutory power of the Court under circumstances such as that he had no equity to set the Court in motion. But in the absence of special circumstances the member who has sold his shares to the company is liable to be restored to the register and rendered liable, seeing that he has never validly disposed of his shares (r). The decision of Fry, J., in Colville's Case (s), which was cited in Be Dron- field Co. (t), but not noticed in the judgments, certainly went a good deal further than Be Dronfield Co. (p). It was there held that under a power to accept surrenders of shares on such terms as the directors might think fit, which was not in the original articles but was added by special resolution, a surrender was valid which was proposed by the shareholder and accepted by the company and under which the company paid the shareholder £300 for shares on which £1600 had been paid. In Phosphate of Lime Co. v. Qi-een (u), the directors had advanced money to the promoters of the company to enable them to take up shares which the promoters had bought, and the directors subsequently agreed to abandon (o) 4 Ch. Div. 327. p. 282. (p) 17 Ch. Div. 76. (s) 48 L. J. (Ch.) 633; 41 L. T. 177. (S) 12 App. Cas. 409, 420, 429, 439, 440. (<) 17 Ch. Div. 76, 89. (i-) Qen. Froperttj Investment v. Mathe- (m) L. K. 7 C. P. 43. son, Ct. of Sess. Cas., 4th series, vol. xvi. THE COMPANIES ACT, 1867. 541 their claim to have the money returned, in consideration of the shares being Sect. 9. delivered up to be cancelled. This was held to bo a purchase of shares ; but although it was invalid, yet the shareholders having with knowledge or means of knowledge ratified and acquiesced in the transaction, this was held to sustain a plea of accord and satisfaction to an action brought to recover the money advanced. But this case can now, it is conceived, be accepted only with reservation. The question whether the transaction was within the memorandum or was consistent with the Companies Acts was not argued or considered, and it was not then so well settled as it has been since Ash- hwry Go. v. Piiche (x) that a transaction not within the memorandum cannot be ratified. In Zviueid's Claim (y) the memorandum of association specified as an object the making advances on and purchases, sales, and dealings in shares of joint stock companies, and some expressions of Giffard, L.J., were often cited to the effect that unless the memorandum [or semble the articles] con- tained a direct authority for the company to purchase its own shares such a purchase was ultra vires (z). The statute contains no provisions as to the making of calls, and leaves it Eetuvn of to the regulations, of which Table A. is but a specimen, to determine how ''^P''^' *° Q16tIlt)61'S and when they shall be made. In the going company therefore it rests subject to entirely with the company to determine by its regulations how and when re-call, the calls shall be made on the capital which has been issued. Suppose the capital has been called up too fast and the directors are desirous of returning some part to the shareholders on the terms that it may be called again when wanted, and the articles contain a regulation aptly worded to allow this, is a return on such terms legal ? The question has never yet been determined. In Guinness v. Land Corporation of Ireland (a), FKtcroffs Case (h), and Trevor v. Whitworth (c), there are expressions to the effect that whatever has been paid by a member cannot be returned to him, but the point there was not return subject to recall, but return upon the terms that the members should retain. The wording of sect. 3 of the Companies Act, 1877, must, in considering this question, be borne in mind. Tou may under that section pay off capital in excess of the wants of the company, and if return subject to recall is within those words, then it can be made only subject to the con- ditions imposed by the Act. The section however goes on to speak of the " liability (if any) remaining on the shares " — now return subject to recall obviously and necessarily leaves liability remaining, so that, arguendo, such a return is not one with which the section is dealing. Orders have been made sanctioning reduction of capital by the return of money subject to recall {d). And if these are right, then it would seem that return of capital subject to recall is without such an order wrong. See also the note to Companies Act, 1880, s. 3. In connection with the question of the legality of a power for a company Dividends out to purchase its own shares, should be borne in mind the cases on payment of of capital ;— dividend out of capital which have already been considered (e). In each is involved the question whether the statute does not by implication, if not (a;) L. E. 7 H. L. 653. Jtailway, E. p. Credit Fonder, 7 Ch. 161 ; of) 5 Ch. 444. Cree t. Somenail, 4 App. Cas. 648 ; Net- {z) See also Land Credit Co. of Ireland son Mitchell's Case, 4 App. Cas. 624. r. Lord Fermoy, 8 Eq. 7 ; 5 Ch. 763 ; (a) 22 Ch. Div. 349, 375. Hodgkinson v. National Live Stock In- (6) 21 Ch. Div. 519, 533. surance Co., 4 De G. & J. 422 ; Lamest (c) 12 App. Cas. 409. Case, 1 D. M. & G. 421, where authority (d) Fore Street Warelwuse Co., W. N. purported to have been given by an extra- 1888, 165. ordinary meeting ; Marseilles Extension (e) Ante, p. 516. randum. 542 THE COMPANIES ACT, 1867, Sect. 9. expressly, provide that the paid-up capital of the company shall (subject of course to loss of which the creditor takes the risk) be retained and kept up as the fund to which the creditors are entitled to look, and shall not, whether by return to the shareholders pro raid (which, unless carried out under the statute, is impliedly forbidden by Companies Act, 1862, s. 12, and Companies Act, 1877, s. 3), or by return to one or more shareholders in purchase of their shares otherwise than by way of something analogous to a forfeiture, or by payment thereout of dividend when no profit has been earned, be returned to the shareholders (/). under a power But Suppose the memorandum of association contains, as an object of the !.°„*j'.!^^™°" company, the application of some part of the capital in paying dividends, is this valid? Lee v. Neuchatel Asphalte Go. (g) has determined that if the memorandum of association (for that must be what is meant) allows of the sinking of the capital in a wasting property the depreciation by waste may be a capital and not a revenue charge, with the result that the credit balance of revenue account may be divided in dividend without deduction of the depreciation by waste. This does not, however, cover the point now under consideration for it is one thing to apply capital in paying dividend, and another to apply revenue in paying dividend without first recouping waste of capital. The case is nearer to Trevor v. Whitworih (h) than to Lee v. Neuchatel Asphalte Co. {g). In the scheme for the Land Corporation of Ireland, after the decision in Guinness v. Land Corporation of Ireland (i), the question presented itself practically in the following form. To carry out the original scheme two companies were there subsequently incorporated, the one the Land Company, to carry out operations in land, the other the Guarantee Company, whose memorandum of association defined its objects to include the application of its capital so far as necessary to supplement the earnings of the Land Com- pany, so as to make up a certain rate of return upon the Land Company's capital. In the form of two such companies the transaction was obvioasTy legal. Could not those two companies have been amalgamated ? or could not a single company have been formed whose objects should in its memo- randum have been described as being to operate in land, and so far as necessary to devote some part of its capital, say capital subscribed upon B. shares, to make good a dividend, at say 5 per cent, per annum, upon the A. shares ? It may be, as Lord Macnaghten said in Trevor v. Whitworth (k), in reference to a power in the memorandum to purchase the company's own shares, that such a provision in the memorandum would be repugnant and contradictory to the rest of the memorandum : or at any rate would have the effect of reducing one of the statutory conditions of the memorandum to an empty form. But it is difficult to see how the creditor could complain, or how any provision of the statute would be broken, if the memorandum iiself designated as one of the destinations of the capital subscribed the pay- ment of dividend upon the shares, and there are several expressions in the judgments in Ouinness v. Land Corporation of Ireland (i) which lead to the inference that the Court would have been of opinion that a memorandum in the form suggested would have been valid and effectual. The question is continually presenting itself in practice in the form of interest during con- struction in the case of companies whose objects are to construct large works which are necessarily for many years unremunerative. (/) See National Funds Co., 10 Ch. D. (A) 12 App. Cas. 409. 118, 127 ; Ilolmas v. Newcastle Abattoir (•) 22 Ch. Div. 349. Co., 1 Ch. D. 682. (A) 12 App. Cas. 409, 437. (<7) 41 Ch, Div, 1. THE COMPANIES ACT, 1867. 543 Any dealing with the capital of a company which is a reduction of capital Sect. 9. within the Acts and which is not carried out in pursuance of the provisions 77 7 of the Acts will be restrained (T). And if shares have been illegally issued against illegal at a discount the Court will not confirm a reduction based upon writing off reduction, the discount as " unrepresented by available assets " (m). The Act is silent as to the manner in which the sum to be written off is Reduction in to be apportioned as among the several shareholders. The inference is that "^^^ "f prefer- it is to be borne among them in such manner as under the constitution of n™ Shares '' the company loss in respect of capital is to be borne. If, therefore, no shares have preferential rights in respect of capital over other shares, the company cannot in reducing capital resolve that some only of the shares shall be reduced (thus making these bear all the loss) while others are not re- duced (n). And if the company does pass resolutions to that effect, it is conceived that the Court will not confirm them unless the assent of every single shareholder who is adversely affected by the resolutions assents. It is true that in the Qvebrada Co. (o) a reduction which threw the loss ex- clusively on the ordinary shareholders was ultimately confirmed, although there remained to the last three ordinary shareholders who dissented. But this must have been on the ground that their holding was only 126 shares of £10 each, and the amount by which they were affected was only one penny in the pound, and that they did not appear .to oppose. As a decision upon the general question the case would upon this point probably not be followed (ji). If there be two classes of shares, viz. ordinary shares, and shares with a preferential right to dividend but without preference as to capital, the Court will not sanction a reducjion which reduces the ordinary shares with- out reducing the preference shares (n). If, on the other hand, there are two classes of shares, viz. ordinary shares, and shares with a preference in respect of capital (either with or without also a preference as to dividend), it is conceived that in such a company the reduction not only may, but must be thrown upon the ordinary shares to the indemnity of the preference shares. The question is in every case one of construction of the contract under which the shares are taken. It is conceivable that a preferential right to dividend nught be expressed in such form as to imply a preference as to capital, e.g. if the dividend were expressed to be a perpetual yearly sum of fixed amount being so much per cent, on capital. In such a case it is a question of construction upon the contract under which the shares were taken whether the capital can or not be so reduced as to diminish dividend by giving the defined rate upon a reduced capital sum (p). Where the articles contained a power to reduce capital and the Court was of opinion that this contemplated (inter alia) a reduction by writing off lost capital, the preference shareholder was bound by a scheme of reduction by writing off from all shareholders alike one half of their capital as lost, although the result was to reduce the preferential dividend also by one half (p). And where the articles did not, at the date when the preference shares were created, contain power to reduce, and such power was introduced afterwards by special resolution, the Court sanctioned a reduction which (f) Eolmes v. Newcastle Abattoir Co., (») Union Plate Glass Co., 42 Ch. D. 1 Ch. D. 682; Hope v. International 513. Financial Society, 4 Ch. Div. 327 ; and see (o) 40 Ch. D. 363. Bannatyne v. Direct Spanish Telegraph Co., > (p) Bannatyne y. Direct Spanish Tele- Si Ch. DiT. 287. graph Co., 84 Ch, Div. 287. (m) New Chile Gold Co., 38 Ch. D. 475. 544 THE COMPANIES ACT, 1867. Sect. 10. Discretion. Necessary resolutions, Company to add " and re- duced " to its name for a limited period. reduced all shares alike. For the preference shares were shares in a com- - pany which by the Act were reducible if the company took the proper steps under the Act for the purpose (g). The reduction must in every case be such as to throw the loss upon the several shareholders according to their rights inter se in respect of capital (r). There is nothing to prevent each company creating such rights in this respect as it thinks proper (?). The Acts relating to reduction of capital give powers but do not impose duties on the company (s). At the same time the power given to the Court by sect. 11 is a discretionary power and allows the Court to impose terms and conditions. The Court may, therefore, either confirm the reduction with or without conditions or may decline to confirm it. It is not necessarily confined to seeing that creditors are properly protected, but may take into account whether the reduction would work injustice between the different classes of shareholders, and although it may not fall within its function to impose conditions which amount to an alteration of the scheme, yet if such an alteration appears requisite it may refuse to confirm the reduction, leaving the company to resolve on a reduction in altered form if they think fit (t). It is noticeable that while under sect. 12 of Companies Act, 1862, a company can increase or consolidate its capital or convert its paid-up shares into stock without a special resolution, it can under sects. 9 and 21 of Companies Act, 1867, and under the Companies Acts, 1877 and 1880, reduce its capital or subdivide its shares only by special resolution : assuming in each case other than as presently mentioned, that its articles authorize the act in question. But for the purposes of the Act of 1880, it is not necessary that the articles should authorize the act in question. In companies governed by Table A. a difference is again introduced as respects the acts authorized by Companies Act, 1862, s. 12 : for Art. (23) as to conversion of shares into stock does not, while Art. (26) as to increase of capital does, require a special resolution. The reduction of capital and shares can only be effected in the manner provided by the Acts. Where, therefore, the case is not one under the Act of 1880, but is a case where the act in question ought to be authorized by the articles, then if the articles do not contain the power, there must he, first, a special resolution altering the regulations of the company so as to authorize it to modify the conditions contained in the memorandum of association; secondly, a special resolution modifying the conditions contained in the memorandum ; and, thirdly, an order of the Court, duly registered, confirming the reduction. And therefore a single special resolution passed, under a power to vary the amount and number of the shares, &c., contained in the articles of association, by an extraordinary meeting was not within the Act, and the Court had no jurisdiction to confirm the reduction (u). 10. The company shall, after the date of tlie passing of anj special resolution for reducing its capital, add to its name, until such date as the Court may fix, the words " and reduced," as the (q) Barrow Stocl Co., 39 Ch. D. 582. ()•) Qmbrada Co., 40 Ch. D. 363 ; Union Plate Glass Co., 42 Ch. D. 513 ; Gatling (iun, Limited, 43 Ch. D. 028; American Pastoral Co., W. N. 1890, 02. (s) Bannatyno v. Direct Spanish Tele- graph Co., 34 Ch, Div. 287. (t) Direct Spanish Telegraph Co., 34 Ch. D. 307 ; and see 34 Ch. Div. 303, 305 ; Barrow Steel Co., 39 Ch. D. 582. («) West India and Pacific Steamship Co., 9 Ch. 11, n. ; and see 9 Ch. 23 ; Patent Invert Sugar Co., 31 Ch. Div. 166. As to a somewhat similar provision in Comp. Act, 1862, s. 12, see note to that section. THE COMPANIES ACT, 1867. 545 last words in its name, and those words shall, until such date, be Sect. 11. deemed to be part of the name of the company within the meaning of the Principal Act (a). (a) Gen. Order, March, 1868, Rule 20. The Court has in the following cases ordered the words " and reduced " to be continued during the undermentioned periods from the date of the final order (sect. 11) : — Three months : In re Sharp, Stewart, & Co. (x) ; In re Estate Co. (y) ; Re York Street Flax Spinning Go. (z). A month : Be Dunahurg and Witepsh Eailway Go. (a) ; Barrow Steel Co. (b) ; Walker and Lomax, Lim. (c). A fortnight : In re Telegraph Construction Co. (d) ; Be Muntz' Metal Co. (e) ; In re Credit Fancier of England (/) ; Be National Arms Co. (g); Patent Ventilating Granary Co. (K). Dispensed with under Comp. Act, 1877, s. 4 : London and City Land Co. (i) ; British Land Go. of America (k) ; West African Telegraph Co. Q) ; Vivian & Co. (l). 11. A company which has passed a special resolution (a) for Company to reducing its capital may apply to the Court by petition (|3) for an ^onJ^ foj. g^ order confirming the reduction,and on the hearing of the petition (y) pider confirm- 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 been discharged or has deter- mined, or has been secured as hereinafter provided (8), may make an order confirming the reduction on such terms and subject to such conditions as it deems fit. (o) Comp. Act, 1862, s. 51. 16—19. (/3) Gen. Order, March, 1868, Rule 2. (S) s. 14, infra. Of. Comp. (Mem. of (y) Gen. Order, March, 1868, Rules Ass.) Act, 1890, s. 1 (2) (6). The jurisdiction under this section is discretionary (to). See note to sect. 9. As to the proceedings in respect of a petition to reduce capital, see General Order, March, 1868, Eules 2-20, infra. For forms of orders, see In Be Sharp, Stewart, & Go. (n) ; Be York Street Flax Spinning Co. (o) ; In re Credit Fancier of England (p). : Service of the formal notices (q) on creditors residing abroad will, in a proper case, be dispensed with, on the company bringing into Court the amounts set opposite to the names of such creditors in the list required by (a) 5 Eq. 155. (A) 12 Ch. D. 2^4. (y) 5 Ch. 407. (0 W. N. 1885, 137. (z) M.R. (Ir.) 17 W. R. 816. (k) W. N. 1885, 205. (a) 20 L. T. 103. (l) W. N. 1886, 32. (b) 39 Ch. D. 582, 604. (m) Direct Spanish Telegraph Co., 34 (c) W. N. 1888, 26. Ch. D. 307 ; Barrow Steel Co., 39 Ch. D. 582. Cd) 10 Eq. 384. («) 5 Eq. 155. (e) 18 W. R. 1064; 39 L. J. (Cb.) 704. (o) M.R. (Ir.) 17 W. R. 816. (/) 11 Eq. 356. (p) 11 Eq. 356. (g) W. N. 1877, 31. (g) See Gen. Order, March, 1868, Rule 9. 2N 546 THE COMPANIES ACT, 1867. Sect. 12. Definition of " the Court." Creditors may object to re- duction, and list of object- ing creditors to be settled by the Court. the General Order (r), and on giving them notice that this has been done (s). 12. The expression " the Court " shall in this Act mean the Court which has jurisdiction to make an order for winding-up the petitioning company (a), and the eighty-first and eighty-third sections of the Principal Act shall be construed as if the term " winding-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) Comp. Act, 1862, s. 81 ; Industrial and Provident Societies Act, 1876, s. 17. 13. Where a company proposes 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 com- mencement of the winding-up of the company, would be admissible in proof against the company (/3), shall be entitled to object to the proposed 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, and for that purpose shall ascertain as far as possible, without requiring an application from any creditor, the names of such creditors and the nature and amount of their debts or claims, and may publish notices fixing a certain day or days within which creditors of the company who are not entered on the list are to claim to be so entered, or to be excluded from the right of objecting to the proposed reduction (y). (a) Gen. Order, March, 1868, Rule 4. (7) Gen. Order, March, 1868, Eules (18) Comp. Act, 1862, s. 158. 6-19. Debenture-holders, whose names are not known to the company, are creditors not entered on the list, who may, on receiving the notice by advertisement under the 16th Eule of the General Order, March, 1868 (v. infra), come forward and claim to be entered, and who, if they fail to do so, are to be excluded from the right of objecting (t). But, quaere, whether Ery, J., would have followed this (u), seeing that the amount due to such debenture-holders must be known, although the individuals cannot be found. It does not appear by 4;he report whether, in the case before him {u), the debentures were to bearer or not, or whether the names of the particular debenture-holders who did not appear were known. It may be inferred from the report that they were. In another case notice was allowed to be given to debenture-holders, whose names were not known to the company, by adding to the usual advertisement a notice to the following effect : " And, further, take notice that by an order dated his Lordship, the Master of the Eolls, gave leave that the notice required by Eule 9 of the General Orders of the High Court of Chancery to 11 Eq. 356. («) Patent Ventilating Granary Co., 12 Ch. D. 254. ()-) Sec Gen. Order, March, 1868, Rule 9. (s) West Indian and Pacific Steamship Co., 19 L. T. 310. (t) In re Credit Fonder of England, THE COMPANIES ACT, 1867. 547 be served on the creditors of the above-named company should be served on Sect, 14. the holders of the debentures of the said company by the insertion of this advertisement " (x). 14. Where a creditor whose name is entered on the list of <^o"^' ™*y ^'=- creditors, and whose debt or claim is not discharged or deter- sent of cieditor mined, does not consent to the proposed reduction, the Court may, teir^iven for if it think fit, dispense with such consent, on the company Ws debt. . securing the payment of the debt or claim of such creditor by setting apart and appropriating, 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 appro- priate, then the full 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, and is not such as the company are willing to set apart and appropriate, or if the amount is contingent or not ascertained, 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 creditor who " does not consent," does, it seems, include a creditor who Consent, remains perfectly passive, having the opportunity of opposing. Where creditors named in the list, whose debts were not yet due, and were secured, had neither assented to nor dissented from the proposed reduction, it was held that they were not to be considered creditors who did " not consent," but must be taken to have assented (y). But Fry, J., refused to follow this case, and held that debenture-holders who had not attended in Chambers and did not appear in Court could not be taken to have consented, and that unless a consent brief were produced the amount- due to them must be paid into Court to answer their debt (z). When a limited company reduces its capital a lessor to the company is Company's entitled to have a sum impounded to answer future rent (a). lessor. 15. The Eegistrar of Joint- Stock Companies, upon the pro- Order and duction to him of an order of the Court confirming the reduction ^gista-ed.""^ (a;) JSe General Bank for Promotion of («) Patent Ventilating Granary Co., 12 Agricultural and Publio Works, 17 W. R. Ch. D. 254. 304; 38 L. J. (Ch.) 168. (a) In re Telegraph Construction Co., (y) Jn re Credit Fonoier of England, 10 Eq. 384; and see note to Comp. Act, 11 Eq. 356. 1862, s. 158, supra, p. 355. 2n2 548 THE COMPANIES ACT, 1867. Sect. 15. of the capital of a company, and the delivery to him of a copy of the order and of a minute (approved by the Court) shewing with respect to the capital of the company, as altered by the order, the amount of such capital, the number of sbares in which it is to be divider], and the amount of each share, shall register the order and minute, and on the registration the special resolution con- firmed by the order so registered shall take effect. Notice of such registration shall be published in such manner as the Court may direct. The registrar shall certify under his hand the registration of the order and minute, and his certificate shall be conclusive evidence that all the requisitions of this Act with respect to the reduction of capital have been complied with, and that the capital of the company is such as is stated in the minute. Advertise- <]\^q General Order of March, 1868 (see post), made under this Act, requires ™^° ■ three advertisements, viz. : — (1.) Advertisement of the presentation of the petition (Eule 5, Form No. 2). (2.) Advertisement of the list of creditors (Eule 10, Form No. 5). (3.) Advertisement of the hearing of the petition (Eule 16, Form No. 8). The statute (sect. 15) requires one further notice, viz. : — (4.) Notice of the registration of the order and of the minute. This is again referred to in Gen. Order, March, 1868, E. 20. As regards No. (4) the Court has no power to dispense with the notice, and whether the case is under sect. 4 of the Comp. Act, 1877, as not affecting creditors or not the notice must be given, the Court has only a discretion as to how it shall be given (b) ; in the absence of special circumstances it should be given by advertisement (c). As regards Nos. (1), (2), and (3) — {A.) In cases not within sect. 4 of the Comp. Act, 1877, the Gen. Order must of course be followed, and (B.) In cases within sect. 4 of the Comp. Act, 1877, it must be borne in mind that the Act of 1877 is not an independent Act, but is to be read with and as part of the Act of 1867, and that a petition in these cases is a petition under the Act of 1867, although it can be presented only by virtue of the Act of 1877. Being under the Act of 1867, the Gen. Order of March, 1868, applies, except so far as that order requires something to be done which is incon- sistent with the later Act (d). If no list of creditors is settled No. (2) obviously does not apply ; and if there are no proceedings in chambers, or none of any length between presentation and hearing of petition, Nos. (1) and (3) may coalesce. The presentation and hearing of the petition, however, are to be advertised unless the Judge in the exercise of the discretion (which no doubt he has as to this) shall otherwise direct (d). And obviously these petitions ought in the large majority of cases to be advertised. It is question of fact whether the capital alleged to have been lost has been lost or not, and how is the Court to know (b) London Steamboat Co., W. N. 1883, Vivian ^ Co., W. N. 1886, 32 ; 54 L. T. 123; 31 W. R. 781; London and City 384. Land Co., W. N. 1885, 137 ; West African (o) Canada Land Co., W. N. 1885, 61. Telegraph Co., W. N. 1886, 32; 34 W. R. (d) Tambracherry Estates Co., 29 Ch. 411 ; 55 L. J. (Ch.) 486; 54 L. T. 384; Div. 683. TUE' COMPANIES ACT, 1867. 549 •whether creditors ought, tinder the Act of 1877, to be allowed to object. Sect. 16. unless an opportunity is given them of attending the hearing, and showing cause why they should be so allowed ? The Court was at one time very lax in requiring proper evidence that the capital had in fact been lost, so much so that a mere statutory affidavit in Form No. 2 to the Gen. Order, Nov. 1862, was held to be sufficient (e) ; but sufficient and satisfactory evidence is now always required (/). Advertisement of the petition will not be dispensed with except under special circumstances (g). Advertisement of the petition has been dispensed with in : — London and City Land Co. (h), British Land Co. of America (i), Vivian & Co. {Tc), Great Western Steamship Go. Q), E. 0. Powder Co. (m) ; and has been required in Tambracherry Estates Co. (n), People's Cafe Co. (o). For form of minute, see In re Sharp, Stewart, & Go. (p), In re Credit Fonder of England (q), lie Ehbw Vale Co. (f). The minute ought to shew not only what the amount of the capital as reduced will be, but also the amount from which it is reduced (s). By sect. 4 of the Companies Act, 1877, the minute is further to state the amount (if any) at the date of the registration of the minute proposed to be deemed to have been paid up on each share. 16. The minute when registered shall be deemed to be substi- Minute to form tuted for the corresponding part of the memorandum of association randum of of the company, and shall be of the same validity and subject to association. me same alterations as if it had been originally contained in the memorandum of association ; and, subject as in this Act men- tioned, no member of the company, 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 whicK has been paid on such share and the amount of the share as fixed by the minute. 17. If any creditor who is entitled in respect of any debt or Saving of yiEfuts of crfi- claim to object to the reduction of the capital of a company under ditors wiio are this Act is, in consequence of his ignorance of the proceedings '^""^Jj^"'^ 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 (e) Mains Manufacturing Co., W. N. (m) W. N. 1887, 93. 1884, 171. (») 29 Ch. Div. 683. (/) Kg. Pilsen Joel Co.,W. K. 1886, 203. (o) W. N. 1885, 226. (g) Cons. Telephone Co., W. N. 1885, (p) 5 Eq. 155. 42 ; 33 W. B. 408. (g) 11 Eq. 356. (h) W. N. 1885, 137. (r) 4 Cii. D. 827. (i) W. N. 1885, 205 ; 53 L. T. 753. (s) Sorrow Steel Co., 39 Ch. D. 582, (A) W. N. 1886, 32 ; 54 L. T. 384. 603 ; West Cumberland Steel Co., W. N. (l) W. N. 1886, 177. 1888, 54 ; Britannia Mills, W. N. 1888, 103. 550 THE COMPANIES ACT, 1867. Sect. 18. shall be liable to contribute for the payment of such debt or claim an amount not exceeding the amount which he would have been liable to contribute if the 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 contributories 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. Copy of 18. A minute when registered shall be embodied in every copy minute. of the memorandum of association issued after its registration ; and if any company makes default in complying with the provisions of this section, it 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 shall knowingly and wil- fully authorize or permit such default shall incur the like penalty. Penalty on 19. If anj"^ director, manager, or officer of the company wilfully ! of ore- conceals the name of any creditor of the company who is entitled name ( ditor. iq object to the proposed reduction, or wilfully misrepresents 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 misdemeanour. Power to make 20. The powers of making Eules concerning winding-up con- fo^makTn?"'^^'^ fcrrod by the one hundred and seventieth (a), one hundred and Rules concern-: seventy-first, one hundred and seventy-second, and one hundred thfs Act,' ^'iid seventy-third sections of the Principal Act shall respectively extend to making Rules concerning matters in which 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 Eules are made the practice of the Court in matters of the same nature shall, so far as the same is applicable, be followed. (o) struck out by 44 & 45 Vict. c. 59. See General Order, March, 1868, infra. Subdivision of Shares. Shares may be 21. Any Company limited by shares may by special resolu- ivi e mto ^Jqj^ ^^^ g^ £^^ modify the conditions contained in its memorandum THE COMPANIES ACT, 1867. 551 of association, if autkorized so to do by its regulations as originally Sect. 22. framed, or as altered by special resolution, as, by subdivision of shares of its existing shares or any of them, to divide its capital, or any smaller part thereof, into shares of smaller amount than is fixed by its memorandum of association (/3) : 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. (o) Comp. Act, 1862, o. 51. (;3) Comp. Act, 1862, ». 12. A power to divide the capital into shares of smaller amount was not included in sect. 12 of the Principal Act. And the reason why this could not have been allowed without the protection afforded by the special pro- visions of this Act may be given in the words of Lord Cairns : — " A consolidation and increase of the nominal value of shares preserves the same amount of capital, but may bring it into fewer hands, and may be more beneficial to creditors by making the capital more easy of collection. . . . A subdivision of shares, on the other hand, if valid at all, must be valid to whatever extent it may be carried, and thus creditors of the company may, upon a winding-up, be left, and left without any previous notice given to them by the Act of Parliament, with the unpaid capital of the company scattered through such a number of hands that the sum recoverable from each would not pay for the trouble and expense of collection " (t). But where, after an unauthorized reduction of shares, the reduced shares Transfer of which correspond to an original share can be ear-marked and traced to the improperly hands of a transferee, he will be held to be a ndember in respect of such share, '■"^'^'i''^'' shares. Thus where the memorandum of association provided for shares of £100 each, " subject to be increased or modiiied," and the articles gave the directors power to divide the shares into shares of smaller amount, and the directors, in exercise of this power, converted each £100 share into five £20 shares, the conversion was held, under the Act of 1862, to be void ; . but A. having transferred to B. fifty of the £20 shares which could be identified with ten of the £100 shares, the transfer was held effectual, and B. was placed on the list of contributories (u). Teasdale's Case (x) was a somewhat similar case, except that the shares were there not reduced, but their amount was re-distributed. 22. The statement of the number and amount of the shares Special reso- into which the capital of the company is. divided, contained iu e^'j,™;'"^^^ every copy of the memorandum of association issued after the memorandum r J, , . ^ li- Till- J of association. passing 01 any such special resolution, shall be in accordance with such resolution ; and any company 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 (i) Fer Cairns, L.J., In re Financial Cor- In re New Zealand Banking Corporation, poration, Holmes' Case, 2 Ch. 714, 733. Sewell's Case, 3 Ch. 131. (m) In re Financial Corporation, Felling (oc) 9 Ch. 54. and Jtimington's Case, 2 Ch. 714; and see 552 THE COMPANIES ACT, 1867. Sect. 23. default is made, and every director and manager of the company ~~^ who knowingly or wilfully authorizes or permits such default shall incur the like penalty. Associations not for Profit. Special pro- 23. Where any association is about to be forme! under the associations Principal Act as a limited company, if it proves to the Board *^os™'nc'rof"'' ^^ Trade that it is formed for the purpose of promoting commerce, gain. art, science, religion, charity, or any other useful object, (o) and tbat 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 secretaries, 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 registered accordingly, and upon registration shall enjoy all the privileges and be subject to the obligations 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 (/3). 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. (o) Quare, this means not necessarily Q. B. Div. 621. exclusively, but as its main and chief (j8) Comp. Act, 1862, ss. 8, 9, 26, 41, 42, object. Cf. Inst, of Civil Engineers, 20 45, 46. Galls upon Shares. Company may 24, Nothing contained in the Principal Act shall be deemed shares^liy to prevent any company under that Act, if authorized by its paid and others regulations as Originally framed or as altered by special reso- lution (a), from doing any one or more of the following things ; namely, — (1.) Making arrangements on the issue of shares for a difference between the holders of such shares in the amount of calls to be paid, and in the time of payment of such calls : (2.) Accepting from any member of the company who assents THE COMPANIES ACT, 1867. 553 thereto the whole or a part of the amount remaining Sect. 25. unpaid on any share or shares held hy him, either in discharge of the amount of a call payable in respect of any other share or shares held by him, or without any call having been made : (3.) Paying dividend in proportion to the amount paid up on each share in cases where a larger amount is paid up on some shares than on others (/3). (a) Comp. Act, 1862, s. 51. (/3) See note to Comp. Act, 1862, ». 109. 25. Every share in any company shall be deemed and taken Manner in to have been issued and to be held subject to the payment of the ^-e'to teLTued whole amount thereof in cash, unless the same (a) shall have been ^'^'i held. otherwise determined by a contract duly made in writing, and filed with the Eegistrar of Joint Stock Companies at or before the issue of such shares. (o) i.e. the terms of payment : Almada and Tirito Co., 38 Ch. Dir. 415, 425. The object of this section was probably to prevent such contracts as were object and before the Couit in Pellatt's Case (j/) and Elkington's Case (z), under which a effect of man was to take shares and to pay for them by supplying goods when section. wanted (a) ; and further to put a stop to the dangers and abuses incident to such arrangements as those in Brummond's Case (b), Be Baglan Hall Colliery Go. (c), and the similar cases (d) before considered (e). Under the Act of 1862 it is conceived that the contract of the subscriber of the memorandum, or other allottee of shares, was already to take the shares and pay for them in cash, but this was a contract which was capable of being altered by subsequent agreement and arrangement with the direc- tors. The effect of this section, therefore, appears to be, to declare the law to be what it was already, and to superimpose the restriction that by no arrangement; made subsequent to the issue of the shares, and by no previous arrangement unless registered, shall payment otherwise than in cash be allowed (/). It is a restrictive, not an enabling section. The meaning of the section is that you are prohibited from contracting that shares issued shall be paid for otherwise than in cash except by a regis- tered contract (g). The section applies to the company at all times and under all circum- Section applies stances, and not merely to proseedings in the liquidation of the company (A). *° SO'^g And a company which enforces calls upon shares agreed to be issued as ™"P*°y^- fully paid is not taking advantage of its own wrong. For assuming that the default to register a contract was a wrong of the company, the statute (y) 2 Ch. 627. (/) See judgment of Hellish, L.J., (z) 2 Ch. 511. Fothergill's Case, 8 Ch. 270, 282 ; and (a) Per James, L. J., Spargo's Case, 8 Ch. of Bacon, V.C., JPerrao's Case, 9 Ch. 355, 407,412. 356, n. (6) 4 Ch. 722. (jr) British Farmers' Co., 7 Ch. Dir. (c) 5 Ch. 346. 533, 535. (d) V. supra, p. 47. (A) BurUnshaw v. NicoUs, 3 App. Cas. (e) Per Selhorne, 'L.C, Fothergill's Case, 1004, 1015; Bjrangah Oil Co., Amot's 8 Ch. 270, 279 ; and see PritcharcCs Case, Case, 36 Ch. Div. 702, 710 ; qucere Blyth's 8 Ch. 956, 960. Case, 4 Ch. DIt. 140 ; see infra, p. 558. 554 THE COMPANIES ACT, 1867. Sect. 25. does not allow such a wrong to be set up as a defence. There are only two possible defences under the statute, viz., (1) payment, and (2) that a con- tract was registered. If the going company seeks to enforce calls, no doubt the proper remedy is rectification ; but if the company be in liquidation, and rectification is therefore precluded, then the statute must necessarily prevail (i). And it has been held in Ireland that even in the distribution of surplus assets amongst shareholders in voluntary winding-up the same principle is to be applied. In the case referred to (k) there were £1 shares on which 20s. had been paid, and £1 shares issued at a discount of 7s. 6d., upon which 12s. 6d. had been paid upon the terms that they should be then deemed fully paid : no contract had been registered : it was held that in the distribution of surplus assets the latter must be treated as shares, having only 12s. 6d. paid. And in England North, J., has adopted the same view (0- Payment in gy payment " in cash " is meant any such transaction as would in an action at Idw for calls on the shares support a plea of payment. But that is not a payment " in cash " which would support only a plea of accord and satisfaction (m) ; and, gucere, that which was said in Ooates' Case (n), that this section has not " made any alteration whatever with regard to what shall be good payment for shares which have been admittedly subscribed for," must be understood subject to this qualification. " There must be money due from the one to the other on both sides, and the parties must agree to set one demand of money against the other demand of money " (o). " The Act of Parliament is satisfied if at the time there was money due by the company to the shareholder which could be satisfied by the calls due on the shares, and if there was an agreement in effect that it should be so satisfied" (p). At the same time, what must be shewn is not a mere agreement to pay money, but a payment of money. It may, therefore, be very important to see whether the matter has been carried out, e.g., by proper entries in the company's books (q). In short, if set-off is relied upon, it must be shewn that the set-off was made. If the set-off is made, the omission by the company to make the entries in their books cannot prejudice the share- holder (r). A good payment in cash will have been made : — If, there being due and presently payable to a subscriber of the memo- randum in respect of property sold to the company a sum of cash, such sum, or any portion of it, be set off against sums presently payable on the shares (s). Or if, the company being indebted in a sum of cash to a third party, pay- ment of a portion thereof is at his request made by crediting a shareholder with a sum sufBcient to make his shares fuUy paid up (f). (0 London Celluloid Cu., 39 Ch. Div. (p) Cotton, L.J., Ibid. 519. 190. (?) Kent's Case, 87 Ch. D. 508; 39 (A) Neuitownards Gas Co., E. p. Stephen- Ch. Div. 259. son, 15 L. R. (Irish), 51; Gibson, Little, (r) Jon,es, Lloyd, and Co., il Ch.l). 159. and Co., 5 L. E. (Irish) 139. (s) Spargo's Case, 8 Ch. 407 ; of. May- (0 Weymouth Packet Co., W. N. 1890, nard's Case, 9 Ch. 60. As to Coates' Case, 149. 17 Eq. 169, see post. Compare, as to (m) Fothergill's Case, 8 Ch. 270, 282 ; payment by set-ofF of a sum due. Inns of Spargo's Case, 8 Ch. 507, 411, 414; Court jffoiei Co., 6 Eq. 82, 89. White's Case, 12 Ch. Div. 511, 517. (t) Ferrao's Case, 9 Ch. 355 ; Ban-ow (n) 17 Eq. 169, 176. in Furness Co., 14 Ch. Div. 400; Jones, (0) Brett, L.J., Wtite's Case, 12 Ch. Lloyd, and Co., 41 Ch. D. 159. Div. 517. THE COMPANIES ACT, 1867. 555 Or if, the company ha-ving londfide entered into an arrangement with a Sect. 25. shareholder under which a sura of cash becomes paya,ble to him, payment is - made by crediting the amount to the shareholder upon his shares, notwith- standing that the company be shortly afterwards wound up («). And by a credit so made payment may be made upon shares in advance of calls (x). But it will not be a good payment in cash : — If A. being a subscriber of the memorandum, and being also interested jointly with B. and 0. in a certain property, enter together with B. and 0. into an agreement with the company, which is registered with the memo- randum and articles, to sell that property to the company, and to accept payment partly in paid-up shares. In such a case the shares taken under the agreement will be no satisfaction of the liability incurred by the sub- scription of the memorandum, for two reasons :— (i.) that the joint contract under the agreement cannot be set off against the separate contract under the subscription ; and (ii.) that shares cannot be set off against a money demand (y). With regard to this second reason, it is to be obserTed that there was in FothergilVs Case (y) a registered contract, but so far as this section was concerned it was ineffectual, because it failed to shew that the shares to be taken for the purchase of the property were the same as the shares for which subscription was made to the memorandum. It is submitted, with great deference, that the same observation is applicable to Ooates' Case (z), and that the Court, having there found (a) that the registered document did not identify the two sets of shares as being the same, could not consistently with that which was said by Selbome, L.C., in FothergilVs Case (h), look at the subsequent or any other proceedings of the parties, or at any unregistered document, to ascertain that the intention was that they should be the same. Apart from the registered contract, the facts appear to bring that case within those decisions which shew that a set-off of shares against a money demand is not payment (c). So where newspaper proprietors agreed to advertise a company's pro- spectus, and to receive in payment fully paid-up shares, and shares were allotted to them without any contract having been registered, they were rendered liable as contributories (d). And where the shareholder was assignee of a debt payable by instalments, an arrangement come to with the directors that payment should be made in advance of calls by set-off of a future instalment was not a payment in cash (e). In this case the result (so far as this point is concerned) might have been different if (as was not the case) the proper entries had been made in the company's books. The company might have made themselves debtors in prcesenti for the instalment, which theretofore was payable infuturo. There may sometimes be a difSoulty in ascertaining upon the facts what (u) Adamson's Case, 18 Eq. 670; and (c) At 17 Eq. 179, Malins, V.C., said _ see E. p. Wilson, W. N. 1874, 139 ; 22 that the contract " would have justified ' W. E. 766, which was in a going company, their paying Mr. Coates £2500 in ',cash." but the attempt was to shew that no con- If so, the last observations in the text are sideration had in fact passed. misplaced. But, qucere, how does it (x) Jones, Lloyd, and Co., 41 Ch. D. 159. appear from the facts that this was so? (t/) FothergilVs Case, 8 Ch. 270 ; cf. (d) Pagin and Gill's Case, 6 Ch. D. 681 ; Senfs Case, 8 Ch. 768, 777. Andress' Case, 8 Ch. Div. 126 ; Whites Qi) 17 Eq. 169 ; an appeal in this case Case, 10 Ch. D. 720 ; 12 Ch. Div. 511. was defeated by inrolment, see 9 Ch. 266. («) Kent's Case, 37 Ch. D. 508 ; 39 Ch. (a) See 17 Eq. 175. Div. 249. (6) 8 Ch. 270, 279. 556 THE COMPANIES ACT, 1867. Sect. 26. the contract between the parties is, but the principle is abundantly clear, '- — that if the contract be for sale for cash presently payable, then no registered contract is necessary, for by set-off of the cash payable by the company against the cash payable upon the shares to the company, the shares are paid in cash : but that on the other hand if the contract be for sale for paid- up shares, then, inasmuch as there is no cash ever payable by th6 company, there is nothing to set off, and in the absence of a registered contract, the statute renders the shares unpaid. A case which looks at first a little perplexing was this : — There was origin- ally an agreement by A. to sell to B. for cash, and an agreement by B. to sell to the company for cash. Subsequently letters passed from the solicitor of the company to A., in which occurred the expressions " unless you take so much of the purchase-money in paid-up shares," and " unless you took up £2000 in fully paid-up shares in part payment of the purchase-money." The conveyance by A. to the company as ultimately executed expressed the consideration to be (in part) 400 fully paid shares allotted to A., and the allotment made was of 400 fully paid shares in part payment of purchase-money. There was no registered contract. It was held that the shares were paid for in cash. For the original contract was a cash con- tract : there had never been any novation, any substitution of a new con- tract, but the original contract was satisfied in this way, that A. accepted an allotment of 400 shares, and ia substance the company, by direction of B., paid £2000, part of the money which the company owed B., and which B. owed A. by crediting on the shares (/). In Bentley's Case (g) the facts were these. A. was the holder of 300 shares, and he agreed to take 50 more, and to give up certain rights, and accept a certain reduced commission upon the terms that there should be credited to him upon the 350 shares (1) forthwith, three-fourths of the amount already paid on the 300 shares ; (2) as he made further payments on the 350 shares, three-fourths of the amount he paid ; until the amounts so credited amounted in the aggregate to £750. In other words, every £1 paid or to be paid was to be credited as £1 15s. There was no registered contract. A. made further payments amounting to £481 5s.; and while the company was a going company he claimed, and was allowed, a credit of £360 18s. 9d. (being three-fourths of £481 5s.), and the credit was entered up in the books. It was held in the winding-up that the £360 18s. 2d. had been paid in cash. Now suppose in these two cases the company had sued A. for calls. In the former case (/) A.'s defence would have been, You the company owed money to B., B. owed money to me, by direction of B. part of your debt to him was applied in paying the amount due on my shares : you were thus relieved of a cash debt, in respect of which B. could have sued you and recovered money : that was payment in cash. In the latter case (g) A.'s defence must have been, You were bound by contract when I paid you 20s. to credit me with 35s. I cannot sue you for I5s. for you never contracted to pay me that amount, but I can sue you for damages for not making the credit you contracted to make. The former pleading would, it is conceived, have disclosed a payment, but would the latter have done so? Is not the latter case the same as that of the newspaper proprietor who agrees to insert advertisements and to receive payment in fully paid-up shares : his defence to an action for calls could only be. You agreed not to pay me money, and I cannot sue you for money, but to credit me with the full amount of the shares, aud 1 can sue you for damages for not doing so. (/) iJaiTOio «■» ivirncss Co., 14 Ch. Div. (g) Segent United Stores, 12 Ch. D. 400. 850. THE COMPANIES ACT, 1867. 557 If the contract is to pay in cash or shares at the option of either the Sect. 26. company or the -vendor, and the option is exercised in favour of shares, the r~~ ' ~ fact that there was an option to pay in cash does not assist the allottee. For ^^^^^ „. there never was money dne. Until the option was exercised, the considera- shares. tion remained undetermined, and when the option was exercised, shares, not cash, formed the consideration (h). It is, of course, no payment at all by a sabscriber to the memorandum. No payment. that he was the original vendor of property which was by his vendees sold to the company. In such a case the subscriber, having had no dealings with the company at all, has paid nothing to them, and it is idle to say that the conveyance by his vendees was any payment by him (i). If by direction of his vendees cash owing from the company to them were credited on the shares, this would be another matter. In Gleland's Case (k) shares allotted to B. at the request of A., and pur- porting to be paid up by the cancellation of a debt due from the company to A. for services rendered, were held not to have been paid in cash. This was the earliest case under the section, and dicta in the judgment will be found inconsistent with subsequent cases above referred to. Qumre, the decision itself must be taken to be overruled, unless it is considered to have been proved that the remuneration for services was not presently payable (J). The word " held " in the section means " originally held " : the section deals Evidence of simply with the original character of the shares issued. It does not in any payment. way affect the question of how the payment which the section requires is to be proved. If, therefore, a holder of the shares produces evidence that the shares as he acquired them purported to be and were represented by the company as being paid up, and that he had no notice to the contrary (m), he cannot be confronted with the statute, and told that, notwithstanding the evidence upon which he acted, and notwithstanding the representations of the company, the statute renders the shares unpaid (m). Thus, if an allottee of shares, which from want of a registered contract must be treated as unpaid, transfers them to a stranger who knows nothing of the circumstances, and who acts upon the faith of the certificates issued by the company to his transferor stating the shares to be fully paid, the shares in the hands of the transferee are paid-up shares (k). If, on the other hand, the transferee had notice, then in his hands (m), and in the hands of any subsequent transferee with notice {h), the shares are unpaid. If his transferor had no certificate, but the certificate that the shares are fully paid is issued for the first time to the transferee, the principle of Bwrkinshaw v. Nicolls (n) does not apply (o). The transferee without notice not only has himself a good title to the shares as paid up, but can give a good title to others, and it was held in Barrow's Case (h) that he can give such a title not only to people who had no notice, but to people who had. But this has since been doubted (p). It does not follow that because A. has acquired a good title by estoppel, he can transfer it to B. who knows the true facts. To sum up therefore : — the original allottee and (subject to what follows) (A) Barrow's Case, U Ch. Div. 432. 3 App. Cas. 1004, 1016 ; Turpin's Case, CO Fraser's Case, 28 L. T. 158; 21 W. N. 1877, 70. W. K. 642 ; 42 L. J. (Ch.) 358. (o) Vulcan Ironworks Co., W. N. 1885, (k) 14 Eq. 387. 120. (0 See 14 Eq. at p. 392. (p) London Celluloid Co., 39 Ch. Div. (m) Cricimer's Case, 10 Ch. 614. 190, 197; and see Railway Tables Co.,E.p. («) British Farmers' Co., 7 Ch. Div. 533. Sandys, 42 Ch. D. 98, 110. Affirmed sub nom., Burkinshaw v. Nicolls, 558 THE COMPANIES ACT, 1867. Sect. 25. every subsequent transferee with notice holds the shares as unpaid. A transferee without notice who takes the shares as paid upon the faith of the certificate issued by the company holds the shares as paid, and (if Barrow's Case (q) is right, but not otherwise) by passing through him the title to the shares is purged, so that a subsequent transferee whether with or without notice holds the shares as paid. If the transferee has taken the shares in the ordinary course of business for valuable consideration, the onus of proving that he had notice lies on the person who asserts it (r). But the onus of proving purchase in the ordinary course of business for valuable consideration is on the person who asserts that (s). By notice is meant either actual notice, or notice such that but for his own gross negligence in the matter in question he would have acquired know- ledge. In other words, you must show not that he might have but that he ought to have acquired notice (t). Blyth's Case (u) is diflSicult to understand as reported. It is canceived that it must have been decided either on the ground that no certificates having been issued, the company were not estopped, and the transferee having acted upon insufficient evidence must take the consequences (x); or that the transferee knew the facts. In cases where the transferee is entitled to hold the shares as paid, qucere whether the liability upon them does not remain in the transferor (y). If so, qucere whether the transferor is liable as a present or a past member, and whether he is discharged after a year from the transfer. If he is liable only as a past member, then, as between the A. contributories, the contributions on these shares will be lost : and if the liability ceases at the expiration of the year, the creditors may lose the amount of these shares altogether. Contract to jjj cases arising under this section between the company and an original shares"' '"'' allottee, it is not competent to the shareholder to avail himself of the argument which succeeded in Garling's Case (z) and Anderson's Case (a), and say that all he agreed was to take paid-up shares, and that a contract to take shares unpaid cannot be forced upon him (5). The man did not contract to take paid-up shares ; he contracted to take shares and pay for them, but he contracted to pay in an illegal manner. His contract to take shares is there- fore enforced against him, and haviug got the shares he holds them by virtue of the statute as unpaid (c). It is necessary, however, to distinguish the case where the name has been placed on the register with the assent of the allottee, from the case where the matter rests in contract. In the former case the requisites of sect. 23 of the Companies Act, 1862, have been complied with; the man is a member, and must perform his obligations as such. In the latter the company or the official liquidator is seeking specific performance of a contract, and if it is (j) 14 Ch. Div. 432. negatived in Burkinshaw v. Mcolls, 3 App. (r) Burkinshaw y. Nicolls, 3 App. Cas. Cas. 1004. 1004 ; ffall ^ Co., 37 Ch. D. 712. (a;) See note (n), p. 557. (s) London Celluloid Co., 39 Ch.DW. 190. (y) Per Mellish, L.J., Spargo's Case, 8 (0 JTatl (^ Co., 37 Ch. D. 712. Ch, 407, 410. See Waterhouse v. Jamieson, (m) 4 Ch. Div. 140. The head-note of L. R. 2 H. L., So. 29, and ante, p. 70, the report states that there is no fraud on note (d). the part of a company towards a purchaser («) 1 Ch. Div. 115, reversing 20 Eq. 580. of shares in not registering a contract, and (a) 7 Ch. Div. 75, 94. that this section is in favour of creditors, (6) Pagin and Gill's Case, 6 Ch. D. and does not npply as between the com- 681; Andress' Case, 8 Ch. Div. 126; pany and the shareholders. Qucere, whe- Potter and Brown's Case, 26 W. R. 839 ; ther the case decided either of those two 38 L. T. 757. propositions. The latter, at any rate, was (c) Cf. ante, p. 409. THE COMPANIES ACT, 1867. 559 a contract to take paid-up shares, that is the only contract which can be Sect. 25. enforced : a liability to take unpaid shares cannot then attach (d). The articles of association are a contract (e) only as between the members Contract in inter se in respect of their rights as shareholders. Supposing they contain ° ^^' some stipulation as to acts to be done between the company and a third party, the only result is that the members have covenanted with each other that those acts shall be done, but this gives no right to the third party to enforce performance of such acts. Thus, if the articles provide that the company shall pay preliminary expenses, this does not give promoters a right of action against the company for their payment (/) ; or if they provide that a certain person shall be employed in a particular ofBce, e.g. as solicitor to the company, there is no contract with such officer for breach of which he can sue (g). And even if such person be a member the authorities have established "that the contract which, by virtue of Comp. Act, 1862, s. 16, exists in such case is only a contract between him and his co^members, and not a contract between him and the company (A) (g). The contract contemplated by this section which is to be registered, must be a contract not merely between the shareholders inter se, but between the company (or some one representing the company, as e.g. a trustee for the company before incorporation (i) ) and some person external to the com- pany (k), i.e., some one acting in his individual character, and not merely as a person co-operating in the formation of the company (I). It follows, therefore, that the articles of association, although they may contain an agreement for purchase of a property and payment for it in shares, and although they of course are registered, will not necessarily constitute a contract in writing within the section (m). It was held in BeAppleireewickLead Mining Go. (n) that Pritchard's Case (m) does not go so far as to lay down that under no circumstances can such a contract as is required by this section be contained in the articles : and it is to be observed that the judgment in Pritchard's Gase (ni) went upon this, that the effect of the articles was simply to give the directors authority to make the purchase, and not to effect a completed contract for that purpose. In Be Appletreewick Lead Mining Go. (o) it was, therefore, held that under the circumstances of that case the contract contained in the articles was sufficient. That was a case in which a cost-book partnership was turned into a company ; the partners signed the memorandum for the total number of shares in the company, and the articles purported to transfer all the property of the partners to the company in consideration of £7 per share credited as paid (p). As regards the argument, that a contract in the articles is insufficient because the articles may be altered under Companies Act, 1862, s. 50, it is conceived that this was effectually answered by saying that an alteration would leave the matter untouched, because, unless registered before the issue of the shares, it is for the purposes of this section inoperative. (d) Barangah Oil Co., Amofs Case, 36 (j) Hartley's Case, 10 Ch. 157. Ch. Div. 702. (J) Per Mellish, L.J., CricAmer's Case, («) Comp. Act, 1862, s. 16. 10 Ch. 614. (/ ) Melhado v. Porto Alegre Railway (I) See Anderson's Case, 7 Ch. Diy. 104. Co., L. E. 9 C. P. 503 ; Hereford Waggon (m) Pritchard's Case, 8 Ch. 956. Co., 2 Ch. Div. 621 ; Rotherham Alum Co., (n) 18 Eq. 95, 111. 25 Ch. Div. 103. (o) 18 Eq. 95. (g) Eley v. Positive Assurance Co., 1 l^p) Qucere, apart from registered oon- Ex. Diy. 20, 88. tract, this was a good payment in cash, v. (A) Browne v. La Trinidad, 37 Ch. Div. supra, p. 555. 1, 13, 14. 560 THE COMPANIES ACT, 1867. Sect. 25. But it is clear, from subfequent authorities and those above referred to that a contract in the articles will not do. Thus where the articles provided for the issue of debentures, and that with each debenture the company should issue by way of bonus fully paid shares, this was no contract within the section ; there was no contract by anybody to take the shares at all {q). " Duly made in writing " means " made by the contracting party " {q). So articles which provided that all the original shares should be considered as fully paid-up shares did not protect the shares from being liable for calls (r). If the contract to talse the shares be founded upon the articles (as in the case of director's qualification), and the articles also provide for allotment of a like number of paid-up shares, then no doubt the company must either afSrm or disaflSrm the contract as a whole, and cannot make the director liable for unpaid shares (s). Issue of shares In a company limited by shares the benefit of limited liability, that is to at a discount. ^^^^ ^^ ^^^ being liable to pay more than the nominal amount of the share, is obtained upon the tetms (inter alia) that the member shall be liable to pay to the company that nominal amount. A stipulation or agreement, therefore, that a less cash sum shall be accepted as payment upon the share is repug- nant and void. In other words, shares in a company limited by shares cannot be issued at a discount, whether with (0 or without (tt) the protection of a registered contract. If there is an agreement that certain shares shall be paid for not in cash but in kind, and the agreement is duly registered, then no doubt the question to be regarded is not whether the property given was of value equal to the nominal amount of the shares, but whether the company hand fide agreed to give for the property the sum which is equal to that nominal amount. This, however, raises a difficulty which awaits resolution by future decision. A company may well land fide agree to give a certain sum in paid-up shares for a property when it would not lona fide agree to give the same sum in cash. If its shares are at fifty per cent, discount it might well lona fide agree to give twice as much in paid-up shares as it would give in cash. In such a case it is submitted that the issue of the shares as fully paid up under the protection of a registered contract would be an issue at a discount, and illegal. The difficulty of fact in every case is considerable, for the relevant fact is not what the value of the property is, but what cash sum the company bond fide agreed or would have agreed to give for it. The only dictum at present upon this point is a passage in the judcrment of Cotton, L. J., in Almada and Tirito Co. (x) : " If the contract defines the value, then, unless the contract is set aside as fraudulent, that will fix the shares as paid up, the contract being that a certain property or quantity of goods is to be taken in payment in full of the shares of the company. But suppose in such a case there was a contract that the person taking the shares should give the company goods or an acre of land fixed by the con- tract, and admitted by the parties as worth not the amount of the shares but only 10s. [in the pound], then, although it does not arise for decision here, I in no way intimate any opinion that if such a company were wound (q) Finnstone's Case, 20 Eq. 524. 545, n. See also Now Chile Gold Co., 38 (r) Criokmer's Case, 10 Ch. 614. . Cli. D. 475. (s) Miller's Case, 3 Ch. D. 668 ; 5 Ch. (u) Addkstone Linoleum Co., 37 Ch. Div. Div. 70. 191 ; London Celluloid Co., 39 Ch. D. 190. (4) Almada and Tirito Co., 88 Ch. Div. See also Licensed Victuallers Association, 415, overruling Plas/tynaston Tvhe Co., E. p. Audain, 42 Ch. Div. 1. 23 Ch. D. 542 ; Ince Hall Co., 23 Ch. D. (a;) 38 Ch. Div. 415, 423. THE COMPANIES ACT, 1867. 561 up a person who took shares on an admission that he was only giving half Sect. 25. their value would not be held liable for the remainder, as a sum which on his own admission and on the contract on which he took the shares must be considered as only payment of part of the amount of the shares, leaving the other half unpaid, and therefore to be called up if there was a winding-up." This sentence cannot mean that the question is to be determined merely upon investigating whether the contract upon its face admits that the pro- perty is worth only half the amount of the shares, or whether you find an admission under the hands of tbe parties that this is so ; neither, bearing in mind Burhinshaw v. Nicolls (y), can it mean that the rights of the company in the matter can be asserted only in winding-up. It must mean that if you show as a fact that the agreement was to give in paid-up shares a sum larger than would have been given in cash, you may either set aside the agreement as fraudulent, or may enforce liability upon the shares for the difference (z). At the same time, it is diflcult to reconcile with the plain and intelligible principle, that either cash to the full nominal amount or property which the company has agreed to buy at the full nominal amount of the shares must be paid upon the shares, indications of opinion to be traced here and there amongst the authorities. For instance, in Lee v. Neuchatel Asphalte Co. (a) the judgments (J) proceed upon the basis that the capital represented not money paid but certain assets acquired from previous companies, and it was said (c) that the case was very different from that of a company where money has been paid on all the shares, inferring that the assets acquired with the paid-up capital might be less in the one case than in the other. But first, in that case the question whether the shares had been properly paid up in full or not was not the question to be decided, and, for the purposes of the decision, was to be taken in the afflrmative ; and secondly, no one can dispute that if the company makes an improvident bargain, and hand fide agrees to give in cash twice what a property is really worth, the issue of shares as fully paid up to that amount will be good; in other words, the paid-up capital need not necessarily be represented by cash or property to the full nominal amount. The argument is specious and plausible that inasmuch as a company Rectification limited by shares cannot issue shares at a discount, a contract so to do is not where shares voidable but void, and that therefore any person who has been registered in '^.^^"^ ^*^ pursuance of such a contract is entitled to have the register rectified. But a little consideration shows the fallacy of such a view. The member neces- sarily under the statute, if he agrees to take shares agrees to pay for them, and if he makes it part of his bargain that he shall not pay anything, or shall incur a liability less than that which the statute imposes, this does not avoid his agreement to be a member, but goes for nothing, as the attempted imposition of a condition in respect of his membership which the law does not allow. If the contract remains in fieri, and has not been executed by entry of the name on the register, it is a contract which of course cannot be enforced, for it contains a term with which the company cannot comply. And if the name has been entered on the register, but the facts are that the allottee, imme- diately on finding that his name has been put upon the register, applies to be relieved from the contract, and the company does not oppose on the (y) 3 App. Cas. 1004, 1015, and Zonaon (a) 41 Ch. Div. 1. Oelluloid Co., 39 Ch. Div. 190. (b) See per Stirling, J., 41 Ch, D. 9 ; («) See also Zee v. Neuchatel Asphalte per Cotton, L.J., Ibid. 15. Co., 41 Ch. Div. 1, 16. (c) 41 Ch. Div. 15. 2o 562 THE COMPANIES ACT, 1867. Sect. 26. ground that common mistake of law is no ground for rescission, it is possible that he may be relieved (d). But otherwise the contract if executed is binding, and the liability follows not from any agreement on the part of the member (for ex concessis he never agreed to be liable), but from the statute operating upon the agreement to be a member. If, therefore, the name has been entered on the register, and the allottee has assented to membership, he cannot have rectification, but must remain a member, and as such be liable for calls (e) ; liable, that is, not merely in winding-up, but also in the going company. It would seem that in Klenck v. East India Exploration Co. (/) this point was overlooked in argument. Consideration. jf there is no consideration it may be that the contract is not a contract within the section at all (g). A subsequent failure of consideration is not a ground for treating shares as unpaid, e.g., where the consideration was the assignment of certain patents, and the vendors failed to assign (h). Brokerage on If the company agrees with A. that if he takes so many shares the company issue of shares, ^yj allow him a commission of so much per cent., this may be the same thing as issuing the shares at a discount. But if A. is a broker and is employed by the company as broker in the issue of its capital, it is difiScult to see how a payment made to him for his services as broker can be ultra vires, and if the payment be not of improper amount so as to lead to the conclusion that it is a device, it is difficult also to see how the payment becomes ultra vires by reason of its being measured by a commission of so much per share on the shares issued through him as broker. However, in the Faure Electric Co. (J), Kay, J., has held that payment of brokerage to a broker for placing shares is an improper application of capital ; and if so, it may well follow, upon the principle of Trevor v. Whit- worth (k), that even power in the memorandum of association to pay such brokerage would not render it legal. It is submitted that the grounds of this judgment as a decision on the general question are not satisfactory. If it be assumed, as the judgment does assume, that the payment is not really payment for work and labour, but is or may be made to induce the broker to commit a fraud upon his customers by puffing an unsound investment, grounds other than and in addition to ultra vires suggest themselves for saying that the transaction would be bad in law. But if the point arises again for decision, and there is evidence that the services of a broker are reasonably necessary, and are properly employed in the issue of capital, and that a payment of commission at so much per share is a fair payment for the work done, there seems no ground in principle why such a payment should be ultra vires. In the Licensed Victuallers' Association (I) the Court of Appeal, having to construe the word " discount " in an underwriter's letter, held that it meant commission, with the result that the obligation of the underwriter (which they held to be an obligation himself to take, and not to guarantee the taking by others, of shares) was enforceable. The decision, therefore,' proceeded (d) Almada and Tirito Co., 38 Ch. Div. 108, 112 ; Criokmer's Case, 10 Ch. 614 ; 415. Mrmstone's Case, 20 Eq. 524. (o) Railway Tables Co., E. p. Sandys, (A) Mege and Angier's Case, W. N. 1875, 42 Cl\. Div. 98 ; London Celluloid Co., 39 Ch. 208. Div. 190. (0 40 Ch. D. 141. (/) Ct. of Scss. Cas., 4th series, vol. xvi. (A) 12 App. Cas. 409, 436. p. 271. (0 -E. p. Audain, 42 Ch. Div. 1. ((/) Anderson's Case, 7 Ch. Div. 75, 104, THE COMPANIES ACT, 1867. 563 upon the fodting that payment of such a commission was legal. But neither Sect. 25. party finding it to be his interest to argue that the payment of the com- mission was illegal, the point passed sub silentio. The only other cases which bear upon the point, viz. Bagnall v. Carlton (m) and Lydney Co. v. Bird (n), are, it is submitted, for rather than against the legality of a proper commission for a broker's service. The contract, which is registered, must be (1) made, (2) made in writing Contract and (3) filed, before the issue of the shares. The filing of a document which executed by- discloses all the facts, but which is executed by the company only, and is not, ''''"'?*"? °^ J- until after the issue of the shares, assented to by the allottee, is not a com- pliance with the section (o). In the case referred to the allottee was a debenture-holder, who had voted in favour of resolutions for reconstruction under a _scheme which included the issue to the debenture-holders of fully paid shares in lieu of their debentures, and there was filed before the issue of the shares a document sealed by the new company, which was in form an agreement between the new company and the persons named in the schedule (being ten debenture-holders), but none of those persons executed it. On a motion by the allottee to rectify the register, it was held that the section had not been complied with. Semhle, the registration of the agreement between the old company and its liquidator and the -new company (executed by both companies) might have been sufBoient (o). A contract entered into before the formation of the company with a trustee Contract with for the company and subsequently adopted by the company, is within the trustee for section. The statute does not require it to be made with the company (p). '^°"P""y' Such a contract may be ratified by the company after it comes into exist- ence (q). But in practice it is usual and desirable to exclude any question by expressly adopting it by a short agreement under the company's seal. And semhle a contract with a trustee for the allottees may be sufficient (r). Contract with But qucere this requires more consideration. trustee for After winding-up it can make no difference that the allottee believed that Bg°ienl' j the contract had been registered, or that he sent it for registration, and that contract the non-re'gistration arose through some neglect (s). registered. The statute does not throw upon the allottee the obligation of registering Company must the contract : it is rather for those who seek to enforce it to do all that is see to registra- necessary for its completion (f). *'°"- In Mudford's Claim (u), and E. p. Appleyard {x), Hall, V.O., held that Damages iu where an intended allottee of fully paid shares has, by reason of default winding-up. in registering a contract, become in fact the holder of unpaid shares, he is entitled in the winding-up to prove for damages to the amount of the calls which have been or may be made upon him. It has already been pointed out (y) that these cases are not consistent with Houldsworth v. Glasgow Bank (z) : and must now be taken to be overruled (a). Apart from this section it is clear that a company cannot contract with a Set-off in shareholder that in the winding-up he shall set off debts against calls, or winding-up. (m) 6 Ch. Div. 371. 43 Ch. Div. 118, 126. (n) 38 Ch. Div. 85. (s) Barrow's Case, 14 Ch. Dit. 432. (o) New Eberhardt Co., E. p, Menzies, ■ (t) Barangah Oil Co., Arnofs 'Ca>e 43 Ch. Div. 118. 36 Ch. Div. 702, 708, 711. (p). Hartley's Case, 10 Ch. 157 ; Car- (u) 14 Ch. D. 634. ling's Case, 1 Ch. Div. 115, 128, reversing \x) 18 Ch. D. 587. 20 Eq. 580, 583. {y) Ante, p. 123. {q) Spiller V. Paris Skating Eink Co., 7 Qs) 5 App. Cas. 317. Ch. D. 363 ; see, however, ante, p. 525 (e). (a) Addlestone Linoleum Co., 37 Ch. Div. (r) New Eberhardt Co., E. p. Menzies, 191. 2o2 564 THE COMPANIES ACT, 1867. Sect. 25. that, in other words, the rule in Qrissell's Case (b), being a rule based on the construction of the Act of 1862, shall not apply to him ; and, qiioere, such a result could not be obtained by a contract registered under this section (c). What is It ^as supposed to have been decided in Bush's Case (d) that by the issue. „ jggyg " Qf shares was meant the issue of the certificates for the shares, so that where the directors passed a resolution that shares agreed to be paid for a purchase should at once be allotted, but, being advised that a contract under this section must first be registered, delayed the issue of the certifi- cates till it had been registered, the registration was made before the issue of the shares. But this is a misapprehension (e). It is not necessarily either the allot- ment of the share or the issue of the certificate that constitutes the issue of the share. The question is whether the shareholder has or not been put completely in possession of his share, and this may be so, although some formal act may not have been completed (/). Thus shares may have been issued which have been allotted, but for which no certificates have ever been issued (e), and on the other hand shares as to which a resolution to allot has been made may not have been issued (g). In the former case (e) the shareholder had been registered and the shares had been dealt with by transfer ; in the latter (g) all proceedings upon the allotment had been forthwith suspended in consequence of the discovery that the contract which had been sent down to Cornwall for registration had not been registered. In the interval before the registration of the contract, transfers of the shares had been executed, but the company neither issued certificates nor put the allottees on the register, nor recognized the transfers until after the contract was registered. " At " or before From the context " at or before " at cannot mean before, and must be com- the issue. plied with if the issue of the shares and the filing of the certificate are sub- stantially part of one and the same transaction. Where late in the day there were handed simultaneously to the allottee the contract duly executed for registration and a certificate of the shares as fully paid, and it was too late to file the contract that day, but it was filed on the following morning, it was held that the contract was filed " at " the issue (h). Identification It will be well that shares issued as paid up under a registered contract of shares by and the persons to whom they are allotted should be so described in the con- num ei . ^j.^^^. ^^ ^^ ^^ capable of identificatioH by persons inspecting the contract and the register of shareholders (i). But this is not essential (k). The statute does not require that the contract to be registered shall iden- tify the shares by number, and it is not necessary that it should do so (I). But in settling these contracts it is certainly desirable so to identify the Ad valorem When a contract under this section is taken to the registrar to be filed, stamji duty, the question arises whether the agreement is properly stamped. Before the recent Act (m) the question of ad valorem duty upon such a contract was governed by sect. 70 of the Stamp Act, 1870, and the schedule to that Act, and upon that Act it was held in Commissioners of Inland Revenue v. Angus (n) (b) I Ch. 528 ; o. supra, p. 286. Ch. D. 579. (o) Black ycross v. Grant, (o) James, L.J., Gover's Case, 1 Ch. Div. 2 C. P. Div. 497. 186. But see per Cotton, L.J., in Bagnall (y) Bramwell, L. J., Sullivan v. Mitcalfe, v. Carlton, 6 Ch. Div. 407. 5 C. P. Div. 455. ((f) Hellish, L.J., Gover's Case, I Ch. (z) Kelly, C.B., Twycross v. Grant, 2 Div. 191. See Brett, L.J., Ibid. 200. C. P. Div. 506. (e) Coleridge, C.J., Grove and Lindley, (a) Bramwell, B., Gover's Case, 1 Ch. JJ., I'wycross v. Grant, 2 0. P. D. 485. Div. 192; Bramwell, L.J., Twycross v. (/) It is singular that the words "or Grant, 2 C. P. Div. 499. notice" are omitted. THE COMPANIES ACT, 1867'.- 573 these ■words mean " on the faith that there was no such contract inasmuch Sect. 38. as the prospectus did not mention it "? and does not this at once let in the one raidonal test, viz., whether the concealed contract is such as if disclosed would have deterred a prudent man from joining the concern ? For, assume that the contract was immaterial, then all the shareholder has to say is, " I took my shares on the faith that there was not in existence a certain contract which, had I known of its existence, would not have influenced me in any way.'' Must not the shareholder who comes into Court with a grievance under the section in fact say, " I took my shares on the faith of this pro- spectus, that is, on the faith that it told me all that was material ; it did not tell me of this contract, it is a material contract, I had no notice of its existence, give me relief" (^). A contract need not be in writing to be within the section (h). If in Ark- Verbal Wright v. Newhold (») there had been proved a contract existing at the date ""^^'^^"^ • of the prospectus to remunerate the directors, it would, it is conceived, have been within the section. The particular cases which have been the subject of decision are these : — Cases decided. Where the prospectus failed to state that the company's property was purchased in the first instance by one of the directors, and by him sold to the company at a greatly increased price, Malins, V.C, held that it was fraudulent within the section (k). By agreement of 23rd of July, 1873, S. agreed to sell M. a patent for £65,000 in cash and shares in a company which M. agreed to form. If M. failed to form the company a deposit of £1000 was to be forfeited, and the agreement to become void. By agreement of 23rd of October, 1873, M. agreed with W. as trustee for the company to sell the patent for £125,000. The company was registered 4th of November, 1873, and M. was appointed a director. In January, 1874, G. applied for shares upon a prospectus which did not disclose the agreement of the 23rd of July, 1873. G.'s application for removal of her name from the register on the ground of non-disclosure of the agreement was refused. The Court (diss. Brett, J.) did not necessarily decide anything more than that G. was not entitled to that particular relief. But opinions were expressed in which the Court was equally divided as to whether the agreement of the 23rd of July was or not within the section — James, L.J., and Bramwell, B., holding that it was not; and MeUish, L.J., and Brett, J., that it was Q). On the 26th of March, 1873, P. wrote to C. and other persons who were interested with him in mines which required coal, mentioning a colliery property then for sale, recommending it as an investment, and offering it to C. and others in the terms of a prospectus about to be issued. The letter mentioned the capital and number of shares in a company proposed to be formed for working the property. By deed of 10th of May, 1873, P. contracted to purchase the property for £16,125 in cash by instalments. By agreement of 29th of May, 1873, P. agreed to sell the property to two trustees for the intended company. On the 2nd of June, 1873, a prospectus was issued na,ming P. as managing director, in which the agreement of 10th of May, 1873, was not disclosed. On the 9th of June C. took shares on the faith of the (g) This was a view in substance adopted (i) 17 Ch. Div. .301. in Sullivan t. Mitcalfe by Thesiger, L.J., 5 (k) Askew's Case, 22 W. R. 762 ; reversed, C. P. Div. 460, and by Baggallay, L.J., but only on the ground that the applicant Ibid. 464, but rejected by Bramwell, L.J., was a paid-up shareholder, 9 Ch. 664. Ibid. 477, as being an amendment, not ah (I) Gover's Case, 20 Eq. 114 ; 1 Ch. Div. interpretation of the statute. 182. (h) Capel V. Sim's Co., 58 L. T. 807. 574 THE COMPANIES ACT, 1867. Remedy where section applies. Sect. 38. prospectus. In a suit by C. against P., Bacon, V.O., held thait the agreement of the 10th of May, 1873, was not within this section (m). This decision was disapproved by Cockburn, C. J., in Twycross v. Q-rant (ra), and in consequence an attempt was made, but unsuccessfully, to obtain leave to appeal (o). A contract for the purchase by C. of certain foreign concessions for the construction of tramways which the company was afterwards incorporated to make and work, the consideration being cash and " shares in a company now in course of formation," and the agreement being voidable in ease the capital of the company should not be subscribed, or 0. should not obtain the contract for constructing the lines : and a contract as to payments to be made by C. to G. in consideration of his financing the company and obtain- ing the contract for C, were contracts which the prospectus ought to have disclosed {p). The owners of a patent agreed to sell it to a company for £56,000, but by a series of contracts it was arranged that only £2000 should be retained by them, and the balance of £54,000 should be divided among the promoters. It was held by Baggallay and Thesiger, L.JJ. (Bramwell, L.J., dissenting), that the contracts were within the section (g). Where the section is applicable it gives to shareholders a reihedy against the promoters, &c., personally (r), but does not entitle the shareholder to relief under Companies Act, 1862, s. 35, by the removal of his name from the list of shareholders (s). And the section gives no right of action to any person other than a share- holder, as, e.g., a bondholder (0, for it cannot be divided into two parts, the latter only of which is confined to shareholders, while the former creates a statutory duty for which a bondholder or — to carry the argument to its logical consequence — any member of the public may sue {t). The right of action against a promoter to recover the value of shares on the ground of prospectus fraudulent under this section, is capable of " trans- mission " on the plaintiff's death to his legal personal representative, and he may accordingly prosecute the action (m). The words " knowingly issuing " mean intentionally issuing a prospectus without inserting the contracts, which are by this section required to be specified, although they are omitted under the lona fide belief that it is unnecessary to specify them (a;). This section creates a particular statutory fraud on which arises a right of action in the person taking shares without notice of the contract. It is con- ceived that such a person may covenant not to sue in respect of this right of action. The case is different from a breach of such a statutory duty as was created by sect. 52 of the Coal Mines Regulation Act, 1872 (jr), by which default is made an offence against the Act, in which case the maxim Volenti non fit injuria does not apply (z). It is very usual, and in many cases indeed Death of plaintiif. Knowingly "Waiver of benefit of section. (m) Craig v. Phillips, 3 Ch. D. 722. (n) 2 C. P. DiT. 469, 539. (o) See 7 Ch. Div. 249. (p) Tu'ijcross V. Orant, 2 0. P. Div. 469. {7) Sullivan >. intcalfc, 5 C. P. Div. 4,55. (r) Charlton v. ffaij, 81 L. T. 437; 23 W. R. 129 ; Twycross v. Grant, 2 C. P. Div. 469. (s) Gover's Case, 20 Eq. 114; 1 Ch. Div. 182 (diss. Brett, L.J. QucEre, the assent which Cockburn, C.J., in Twycross V. Grant, 2 C. P. Div. 539, gave to the views of Brett, L.J., must bo taken to refer , only to the question then before the Court of Appeal, viz. : What contracts are within the section ? and not to the remedy by way of rectification of the register? See also Sullivan V. Mitcalfe, 5 C. P. Div. p. 465) ; Bagnall ^ Co., E. p. Dick, 32 L. T. 536. (0 Cornell r. Say, L. E. 8 C. P. 328. (m) Twycross v. Grant, 4 C. P. Div. 40. (») Twycross v. Grant, 2 C. P. Div. 469. (y) 35 & 36 Vict. c. 76. («) Baddeley y. Earl Granville, W. N, 1887, 151 ; and see Thomas y. Quarter- maine, 18 Q. B. Div. 685. THE COMPANIES ACT, 1867. 575 quite necessary to introduce into the prospectus conditions of waiver of this Sect. 38. section, and the application made " upon the conditions of the prospectus " is, it is submitted, in such case a valid abnegation of the right to sue in respect of this cause of action. To define a promoter, or to determine the moment at which a man becomes Promoter. or ceases to be a promoter, is no easy task. Cockburn, C.J., has defined a promoter to be " one who undertakes to form a company with reference to a given project, and to set it going, and who takes the necessary steps to accomplish that purpose " (a). Bowen, L. J., says that " the term promoter is a term not of law but of business, usefully summing up in a single word a number of business operations familiar to the commercial world, by which a company is generally brought into existence " (6). Lindley, L.J., says (c) : — " With respect, to the word ' promoter,' we are of opinion that it has no very definite meaning. As used in connection with companies the term ' promoter ' involves the idea of exertion for the purpose of getting up and starting a company, or what is called floating it, and also the idea of some duty towards the company imposed by or arising from the position which the so-called promoter assumed towards it." Some observations as to "promotion" will be found in Barry Railway Co. (d). The promoter cannot be considered an agent or trustee for the company which is not yet in existence, but the principles of the law of agency and trusteeship have been extended to meet his case. He stands in a fiduciary relation to the company which he promotes, and is accountable to it just as if the relationship of principal and agent or of trustee and cestui que trust had existed (e). The case of a promoter seems an exceptionally strong case of fiduciary relationship, inasmuch as the trustee or agent, so far from being selected by his cestui que trust or principal, here actually creates the principal in whose affairs he acts. So that if it could ever be said by a fraudulent agent to the person whom he has defrauded, " You have only yourself to blame, you should not have trusted me," such an argument would here be excluded, for the company had no choice in the matter as to who should call it into existence. It is often of the essence of cases against promoters to ascertain the date Date of at which they became promoters, and it is generally the most difficult ''«<=<"»>■'§ question to determine. It may be taken that intention to promote is not enough (/), and even agreement to promote is not enough (g) ; you must shew promotion in fact. An invitation to the public to join in acquiring the property no doubt is enough (A). To take an active part in suggesting the formation of the company, in preparing the prospectus and memorandum and articles, in appointing the directors, and in negotiating the purchase may be enough, and the more so if it be part of the arrangements that the promoter shall receive a benefit (»). But to lay down any general rule is impossible, and one may predict that the Court will never attempt it. Moreover some of the acts above suggested as tests, e.g., the preparation of Promotion as agent. (a) Tvjy cross v. Grant, 2 C. P. Div. 541. New Sombrero Co, t. Erlanger, 5 C. P. See also Bagnall t. Carlton, 6 Ch. D. 381 ; Div. 73, 112, 118, 123 ; 3 App. Gas. 1218 ; Emma Mining Co. y. Grant, 11 Ch. D. 918, Emma Mining Co. v. Grant, 11 Ch. D. 936. 918, 936. (6) Whaley Bridge Co. v. Green, 5 (/) Ladywell Co. v. Brookes, 34 Ch. D. Q. B. D. 111. 398 ; 35 Ch. Div. 400, 410. (c) Emma Mining Co. v. Lewis, 27 W. R. (jr) Gover's Case, 1 Ch. Diy. 182. 836; 40 L. T. 749 ; 48 L. J. (C. P.) 257. (A) See 35 Ch. Div. 411. ((f) 4 Ch. Div. 315. («) Lydney Co. v. Bird, 33 Ch. Div. 85. (e) Zydney Co. v. Bird, 33 Ch. Div. 85 ; 576 THE COMPANIES ACT, 1867. Sect. 38. Trustee for company. Several actions, Stay of pro- ceedings. Rescission or other remedy by company. documents, are such, as may or must often be performed by persons who are mere agents, and not promoters at all. The solicitor who prepares the con- tracts, for instance, is not by rendering professional service rendered a promoter (A), although in proving him to be a promoter his professional service may be a link in the chain of evidence. The vendors and promoters may employ an agent to act for them, who may be a mere agent and not a promoter at all, and in Lydney Go. v. Bird Q) Pearson, J., held that Bird & Co. held this position. With this view of the facts the Court of Appeal did not agree (m) ; they held that James Bird was a promoter, and that the fact that he was acting in the promotion as the agent of the vendors did not exonerate him from liability to account for the secret profit which he had made. On the other hand Wilham Bird, who in fact received £5000, but was not a promoter, escaped. It has been held that a trustee for the company does not come within the meaning of the word " officer," and that therefore a prospectus cannot be deemed fraudulent against a trustee (n). Where many actions have been brought by different plaintiffs against directors for misappropriation or for fraud, an order may be made staying proceedings in all but one until after the trial of that one as a test action, proper provision being made in case the test action does not satisfactorily dispose of the question in all (o). It would seem that this section gives no remedy to the shareholder against the company (see ante, p. 574), and also no remedy to the aggregate body of shareholders, i.e., to the corporation against the promoters. The particular statutory fraud by concealment of contract arises only as between the deceived shareholder and the 'person deceiving him. The following cases therefore of proceedings taken by the company against the promoters are cases not under this section, but on the general ground of misrepresentation, and are only added here as being germane to the general question of fraud by promoters. A man may properly purchase, or a body of persons may properly combine to purchase a property with the object and intention of selling it at a profit, whether to a company or to anyone else ; but if it be shewn that the vendors to the company were promoters of the company, that they in fact created their own purchaser, the transaction will at the instance of the company be set aside (i3),or if they were promoters at the date at which they bought, the profit will be ordered to be paid over (j). The fact is, that in these cases the so-called contract for sale to the com- pany is nothing more than an agreement between A. and B. in their own names, of the one part, with themselves under the aliases of C. and D., as trustees for the intended company, of the other part, carried into effect by themselves under the aliases of X. Y. and Z., as so-called directors of the company. The vendors find the person who is called the trustee for the intended company, they find and qualify the directors who are to act for the company in carrying out the contract ; and then the argument is that at the date of the transaction, everyone was of one mind on the subject, and that subsequent shareholders cannot complain. (/i) Qreat Wlieal Polgooth, Se Turner, W. N. 1883, 114; 53 L. J. (Ch.) 42 ; 49 L. T. 20 ; 32 W. K. 107. (0 31 Ch. D. 328. (m) 33 Ch. Div. 85. (n) Cornell r. Hay, L. R. 8 C. P. 328. (o) Sennettr. Lord Bur\j, 5 C. P. D. 339. {p) Lindsay Petroleum Co. v. Hwd, L. R. 5 P. C. 221. (?) See infra, " rescission or repay- ment." Seem if the company bought with knowledge of the profit : Whaley Bridge Co. V. Green, 5 Q. B. D. 109. THE COMPANIES ACT, 1867. 57Y It is now abundantly clear that this is not so : that the corporation, as Sect. 38. subsequently composed of shareholders who knew nothing of and never assented to the fraud, can complain of it (r), that the directors cannot be heard to say that all the shareholders at the time assented, inasmuch as they owed a duty to the future shareholders who were to form the real company, and that the company m&y sue and alone can sue (s) for rescission or repay- ment, although the relief given may enure for the benefit of some of the wrongdoers, if any are shareholders in the company, at the expense of others who are not (t). Where therefore a syndicate, suppressing the fact that they were charging the company double what they had given, sold a property to a company which they promoted and whose directors were in fact their nominees, the sale to the company was set aside, and the members of the syndicate, includ- ing the estate of a deceased member, were held jointly and severally liable for repayment of the purchase-money (<). And where persons who were owners of a concession which they knew was voidable combined to form a company to purchase it, they were held jointly and severally liable to repay the purchase-money, although the concession had become voidable and had been avoided : the trustees for the company who had received money in the nature of a bribe were ordered to repay it ; and all the defendants, including the solicitors, who had acted both for vendors and company, and had concealed the invalidity in the title, were held liable for the costs of the suit (u). In Bagnall v. Carlton (x) the company sued the vendors, E. a financial agent, C. and G. who were promoters, and D. and Co. the vendors' solicitors who became solicitors to the company, praying rescission or repayment. Before the suit came to a hearing, they compromised with the vendors in consideration of a payment of £31,000 to the company, and abandoned rescission. At the hearing, E. C. and G. were held liable to repay the secret profit they had made without any allowance in respect of the £31,000; but were held entitled to their expenses properly incurred in bringing out the company and (the plaintiffs having offered it by their bill) to a fair com- mission. As against D. and Co., the bill was dismissed without costs up to the time of the compromise with the vendors, and with subsequent costs. Where promoter or other person standing in a fiduciary relation towards Rescission or the company has sold to the company his own property without disclosing repayment, his interest the company is entitled to rescind, and for this purpose it is immaterial whether at the time when he acquired the property he stood in a fiduciary relation or not. If he stood in a fiduciary relation when he bought the company has the alternative either to rescind or to retain the property, paying for it no more than he gave (y). (r) Quare, secus, if ereiy shareholder Div. 73; affirmed, 3 App.Cas. 1218; Cairns, knew and assented at a time when no one L.C., doubting as to laches, contemplated the introduction of other (a) Phosphate Sewage Co. v. ffartmont, 5 members : British Seamless Paper Box Co., Ch. Div. 394. 17 Ch. Div. 467. But clearly where the (a;) 6 Ch. Div. 371. transaction is one which the shareholders (i/) Bank of London v. Tyrrell, 10 H. L. cannot ratify (e.g. payment of diyidends C. 26, 47 ; Lindley on Company Law, 5th out of capital which is ultra vires') the ed., p. 348; Emma Mining Co, v. Grant 11 corporation cannot by assent of the share- Ch. D. 918, 938 ; Ambrose Lake Co., M. p. holders lose its right of action : Flitcroft's Taylor, 14 Ch. Div. 390, 394 ; Great Luxem- Case, 21 Ch. Div. 519. honrg Co. v. Magnay, 25 Beav. 586, 595, (s) See 5 Ch. Div. 122. 596 ; Bentinck v. Fenn, 12 App. Cas. 652, (f) New Sombrero Co. v. Erlanger, 5 Ch. 658. 2p 578 THE COMPANIES ACT, 1867. Sect. 38. The test whether the company is entitled to the property at the lower — price which he gave is, whether at the date of its acquisition he stood in a fiduciary relation to the company, so that the company is in a position to say, I as your cestui que trust am entitled to the benefit of the bargain which you made (z). If he did not stand in a fiduciary relation when he bought, then if the company does not elect to rescind, or rescission has become impossible [qv^re, otherwise than by the act of the promoter himself (a)], the company may be without remedy (5). Eor although, where an agent employed to buy goods sells his own goods to his principal without disclosing that they are his, he may be compelled to pay the difference between the price he has charged and the market price, yet promoters' cases are not generally such as to fall within that principle, for the agency is generally not to buy any property, but to buy a specific property (6). The company is not entitled to buy at the price which the promoter gave at the date when he was not promoter, and to say that the company shall buy at the fair price is to make a new contract adversely to the vendor (J). But at the same time, when rescission has become impossible, it is possible that the promoter may be reached (c), and it is conceived that the claim might be put either as one for damages for misfeasance in inducing the company to buy without proper disclosure {d\ or as one for misapplication of the company's funds (if the promoter was a director) in completing a purchase in which the company was being defrauded. If the company (being entitled so to do) elect to retain the property and recover the profit, then in arriving at the amount of the profit the party charged is entitled to deduct all expenses " properly incurred " (e) or moneys land fide paid (/), whether for purposes which the Court approves or not, so as to ascertain how much more money he has got than he would have had if he had never entered into the transaction. On this principle deduction was allowed of payments made to an agent who procured directors, to directors for their qualification, to brokers for sustaining the market, to brokers for waiving an option to take certain shares, and to the press for puflSng the company (/). The allowance will include payments for report on the property, fees paid to solicitors and, brokers, payments for advertisements, printing, etc., but not a sum paid for a guarantee that the company's capital shall be taken (g). It is " wholly wrong to make the company pay for the issue of its own shares " (g). But these words were not, it is conceived, intended to exclude proper .broker's commission. Fees to brokers were expressly allowed. See, however, ante, p. 562. To make out a case of promotion money it is not sufficient to shew that all the purchase consideration did not reach the vendor's pocket, he naturally and necessarily adds something for expenses to the net price which he is willing to take. To make out promotion money you must shew that the price was swollen and exaggerated purposely and fraudulently for («) Ambrose Lake Co., K p. Taylor, 14 (d) Consider 29 Ch. Div. 808 ; and Ch. Div. 390, 398 ; Gape Breton Co., 29 contra, Ibid. 812 ; Ladtjwell Co. v. Brookes, Ch. D. 811. 34 Cli. D. 410 ; 35 Cli. Div. 400. (a) See 29 Ch. Div. 811 ; Great Ltixem- (e) Bagnall v. Carlton, 6 Ch. Div. 371, bourg Co. v. Magnay, 25 Bear. 686. 400, 408; and see as to these words, 11 (6) Cape Breton Co., 26 Ch. D. 221 ; 29 Ch. D. 939. Ch. Div. 795; Bentinok v. Fenn, 12 App. (/) Emma Mining Co. v. Grant, 11 Ch. Oas. 652, 659 ; Ladtjioell Co. v. Brookes, 34 D. 918, 938. Oh. D. 398 ; 35 Ch. Div. 400. (3) Lydney Co. v. Bird, 33 Ch. Div. 85, (0) Bentinok v. Fenn, 12 App. Cas. 652. 95. THE COMPANIES ACT, 1867. 579 the purpose of making the company pay promotion money in addition to Sect. 39. what was understood to be the real purchase-money (h). Where G., the vendor, had agreed out of the purchase-money to pay to S., a Company's promoter, £3000, the company were held entitled to recover from G. so much 5<^''°'i t° '5°- of the £3000 as he had not previously paid to S., on the footing that the ^^^^ ^= ^^^ company could treat the bargain between G. and S. as made by S. on behalf promotion of the company, and could therefore recover from G. by suing on the agree- money. ment («). Meetings (a). 39. Every compaay formed under the Principal Act after the Company to commencement of this Act, shall hold a general meeting within within four four months after its memorandum of association is registered : ^"^^^^ ■^f'«i" ,.„ . . 1111 iniTii registration. 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 authorizes or permits such default shall be liable to the same penalty. (o) Comp. Act, 1862, s. 49. The first meeting may be either an ordinary or an extraordinary meet- ing (k) ; the difference is, in companies governed by Table A., important for the purposes of Art. (58) (T). Winding-up. 40. No contributory of a company under the Principal Act Contributory shall be capable of presenting a petition for winding-up such quaMed to company (a) unless the members of the company are reduced in present wind number to less than seven (j3), or unless the shares in respect of petition. 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 (7), 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 bv 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 h& QC) Arkwright v. Nevibold, 17 Ch. Div. (K) Lord Claud Hamilton's Case, 8 Ch. 301, 319. 548. (0 Whaley Bridge Co. v. Green, 5 O) See the note to that article, suora. Q. B. D. 109. ^ 2 p2 580 THE COMPANIES ACT, 1867. Sect. 41. deemed to have been held by and registered in the name of the contributory. (o) Comp. Act, 1862, 6. 82. (jS) Comp. Act, 1862, ». 79 (3). (■y) Cf. Table A. (47), as to voting. It is well that a contributory's petition should contain allegations shewing that he has held his shares for the requisite six months, but the omission of such allegations does not render it demurrable (m). Semble : — The holder of a share warrant cannot petition (n). "Held" means that the name has been on the register for the requisite time. A transmission during the six months to a trustee in liquidation whose name has never been put on the register and whose title has dropped by a composition being accepted does not affect the " holding " (o). 41-46. [Sects. 41-46, which empowered the High Court to refer a winding-up to the County Court and contained necessary con- sequential enactments, are repealed by the Comp. (W. Up) Act, 1890, and are replaced by sects. 1 and 3 of that Act.] Saving. Not to exempt 47. Nothing in this Act contained shall exempt any company from inovi- from the second or third (a) provisions of the one hundred and ^'°"'L °f ^- 1^^ ninety-sixth section of the Principal Act, restraining the alteration Tict. c. 89. of any provision in any Act of Parliament or charter. (o) Qucere, " third or fourth " was meant. (m) City and Cmnty Bank, 10 Ch. 470. W. R. 915. (») Positive Assurance Co., W. N. 1877, (o) Wala Wynaad Co., 21 Ch. D. 849 ; 23 ; Wala Wynaad Co., 21 Ch. D. 849 ; 30 30 W. R. 915. ( 581 ) THE JOINT STOCK COMPANIES AEEANGEMENT ACT, 1870. 33 & 34 Vict. c. 104. An Act to facilitate Compromises and Arrangements between Creditors and Shareholders of Joint Stock and other Com- panies in liquidation. [10th August, 1870.] Whereas it is expedient to amend the law relating to the liqui- dation of joint stock and other companies : 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 assembled, and by the authority of the same, as follows : 1. This Act may be cited as " The Joint Stock Companies Short title. Arrangement Act, 1870." 2. Where any compromise or arrangement shall be proposed Where com- between a company which is, at the time of the passing of this pos™^Co''urt of Act or afterwards, in the course of being wound up, either volun- Chancery may tarily or by or under the supervision of the Court, under the ing of cvelt ' Companies Acts, 1862 and 1867, or either of them, and the *"^,*'=•' '" (16C1Q6 3.S to creditors of such company, or any class of such creditor?, it shall such com- be lawful for the Court, in addition to any other of its powers, on P™™'*'^- the application in a summary way of any creditor_or the liquidator, to order that a meeting of such creditors or class of creditors shall be summoned in such manner as the Court shall direct ; and if a majority in number representing three-fourths in value of such creditors or class of creditors present either in person or by proxy at such meeting shall agree to any arrangement or com- promise, such arrangement or compromise shall, if sanctioned by an order of the Court, be binding on all such creditors or class of creditors, as the case may be, and also on the liquidator and contributories of the said company. This section enables a majority of creditors of a company to bind a minority. Effect of sec- The 159th and 160th sections of the Companies Act, 1862, seem to provide tion. that a company by its official liquidator, with the sanction of the Court, is to have exactly the same power of compromising both with its creditors and its debtors as an individual would have ; but there is nothing in the Act of 1862 (p) which enables one creditor to bind another creditor to accept a com- promise, or which enables one debtor to bind another debtor with respect to paying a composition (j). The relation in which this section stands to sects. 136, 159, 160, of the Companies Act, 1862, has already been considered under those sections (f). (jp) Except in a voluntary winding-up ; 381, 386. Comp. Act, 1862, ss. 136, 137. (r) Supra, pp. 326, 385, 386. (}) See Albert Life Assurance Co., 6 Ch. 582 JOINT STOCK COMPANIES AEEANGEMENT ACT, 1870. Sect. 2. Meeting of conti'ibutories quare neces- sary under this Act. Debentures to bearer. Majority. Creditors who are also share- holders. " Class of creditors." As regards companies in purely voluntary liquidation, sect. 136 of that Act should be carefully compared with this section : there is between the two sections similarity sufacient to make the reason for the dissimilarity the more hard to find. It will be observed that while in a voluntary winding-up, sects. 136, 159, and 160 require the sanction of an extraordinary resolution of the company, this section requires only the sanction of the Court, and, without saying anything about a meeting of contributories, enacts that the compromise, if agreed to by the creditors and sanctioned by the Court, shall be binding upon (amongst others) the contributories. Again sects. 159 and 160 require only the sanction of the Court, and not of any meeting of the company, where the winding-up is compulsory or under supervision. These enactments are consistent in principle, if it be taken that where the matter is to go before the Court there is no need to hold a meeting of the company. But in Bynevor Collieries Co. (s), it seems to have been assumed that the sanction of an extraordinary reso- lution was necessary, and one part of the argument in fact was that the com- promise was invaUd, because the order of the Court was made before this extraordinary resolution was passed. But it was not necessary for the Court to decide, and it did not decide, that the extraordinary resolution was necessary. Holders of debentures which pass by delivery are not entitled to vote unless they produce their debentures at or before the meeting (f). The sanction of three-fourths in value of the creditors present in person or by proxy is sufBcient, although it may not be three-fourths of the total amount of debts («). The majority must be a majority of those present, not of those present and voting. The chairman has only to ascertain how many are present when the question is put, and how many of them vote for the resolution. Thus those who do not vote at all in fact increase the number of those who vote against the resolution (a;). Creditors who are also shareholders are nevertheless entitled to vote as creditors, and in the same class with creditors who are not shareholders. This was so determined by Chitty, J., in the Madras Irrigation Co. {y), where the nature of the scheme was that the concern should be sold free from incumbrances, and that out of the proceeds the shareholder should take (say) 106 per cent., and the mortgage debenture-holder (say) 75 per cent., so that the debenture-holder who was also a shareholder might, according to the relative amounts of his holdings, have an interest directly opposed to that of the debenture-holders. It is a strong proposition that under this section a majority of secured creditors of the company may vote away from a minority the security which they hold or make them take a substituted security. But in more than one case holders of debentures carrying a security upon the property of the company have been treated as being a class of creditors within the section capable of being bound by the vote of the statutory majority (z). Upon this point it may be observed that prima facie these Acts of ParKa- ment are not dealing with the secured creditor qua secured creditor at all. The object of the winding-up sections of the Acts is to provide for the administration of the property of the company (which, so far as mortgaged (s) 11 Ch. Div. 605. (0 Wedgwood Coal Co., 6 Ch. D. 627. (m) Bessemer Steel Co., 1 Ch. D. 251. (x) Cf. Labouchere v. WhamcUffe, 13 Ch. D. 346, 354. ()/) W. N. 1881, 172. (») Slater v. Darlaston Steel Co., W. N. 1877, 139 ; Dynevor Collieries Co., 11 Ch. Div. 605; Madras Irrigation Co., Chitty, J., March, 1882: Umpire Mining Co., Ai Ch. D. 402. JOINT STOCK COMPANIES AERANGEMENT ACT, 1870, 583 property is concerned, is only the equity of redemption), by applying it first Sect. 2. in payment of the debts, and then as to the surplus in distribution amongst the shareholders. The secured creditor stands 2««i his security outside the winding-up altogether, and (since the Judicature Act) he can, if the company is insolvent, rank against the assets to be administered in the winding-up for the balance only of his debt after deducting the value of the security. This section speaks, it is true, of " classes of creditors," and it may be said that unsecured creditors are only one class, and some other classes must therefore be intended. But Companies Act, 1862, s. 159, also speaks of classes of creditors contemplating the payment of " any classes of creditors in full." This points, it is conceived, to classes of such creditors as would otherwise be entitled only to a dividend, i.e. creditors who are to be satisfied in the winding-up, unsecured creditors. For instance, the servants of the company who are creditors for wages, or creditors whose debts are under £10. It would seem more probable that "class of creditors" in this Act should bear a similar meaning. But as the authorities stand, classes of secured creditors are within the Act. The difficulty is to say what is a class of secured creditors for this purpose. Suppose a company has borrowed largely on mortgage from many people, e.g. a land company which buys land, builds houses, raises money on mortgage, buys more land, and repeats the process as a builder does, do all the mortgagees of such a company form a class and can a statutory majority vote away the security of the minority ? Suppose a company which does business in many towns in England, keeps a banking account in each, and gives every banker a security for overdraft by deposit of deeds, do all the bankers form a class ? To multiply such questions seems much easier than to supply the answer. In Richards and Co. (a) Fry, J., said that as a general rule the Court should not sanction an arrangement under this Act if it would prejudice a creditor whose rights would have been preferential if the winding-up petition had been carried on. The question there was as to leave to judgment creditor to issue execution. For the purposes of the section there must be a majority of the creditors Debts must be of the company which is compromising ; and in order to enable the majority capable of to bind the minority the Court must be satisfied that there is a meeting of *^ '""^ ^' creditors the amount of whose debts can be estimated, and that three-fourths of the creditors have assented. But if it be impossible to estimate the amounts of the claims of individual creditors, the section cannot be applied. Therefore in In re Albert Life Assurance Co. (b), where the A. Life Assur- ance Company had purchased the business of several companies, and had indemnified them against their liabilities ; and some of the policy-holders of the amalgamated companies had accepted the liability of the A. Company, and some had not; and on the A. Company and the other companies being ordered to be wound up a scheme of reconstruction was proposed for the sanction of the Court, James, L.J., held, that considering the different value of policies of the same amount on different lives, and considering that it was uncertain in what cases there had been a novation by the policy-holders of the amalgamated companies, it was not possible to estimate the amounts of the claims of the individual creditors of the respective companies, and that therefore the Court could not act under this section. The Court will not sanction a scheme if it appear that the majority have Bona fides. not voted bond fide in favour of the creditors as a class (c), or if under all (a) 11 Ch. D. 676, 679. Act, 1862, s. 160. (6) 6 Ch. 381 ; and see note to Corap. (c) Wedgwood Coal Co., 6 Ch. D. 627. Sect. 3. Schemes ; — 584 JOINT STOCK COMPANIES AERANGBMENT ACT, 1870. the circumstances it does not approve it (d). It is no doubt in the character of creditor and as a member of a class that the creditor is entrusted with his vote, and the consequent power of controlling the minority. This power, therefore, must be used for the benefit of the class, and not for the individual interest of the voter as opposed to that of the class (e). Under this Act of Parliament it would seem that the unsecured creditor may be converted into a partner by mating him take fully paid shares in satisfaction of his debt (/), and the majority of secured creditors may bind the minority, e.g. as to the disposal of the property included in the security by granting a i!*^se_of Ji (g), or by compelling the minority to give up their security upon payment oTfeBHAaji the amount due to them (A). A scheme has been sanctioned by->^phich one creditor took over all the assets in consideration of paying the costs'iaf^e winding-up and a composi- tion of 5s. 3d. in the pound to the other creditoKP (»)• Other cases of reconstruction are Be Tunis Eaitt^ Co.Qc) and JJe Western of Canada Oil Co. Q), which have been already noii^^upra, pp. 391, 259. Where an order is made sanctioning the scheme, it B^°comes binding not only on the creditors but also on the liquidators and cont:^itories, so that whether the scheme be a valid one (e.g. within sect. 161 of the^Qompanies Act, 1862) or not, a shareholder cannot afterwards question it (m). N. It seems to have been held (») that, notwithstanding this section, the Court cannot compel the liquidator to accept a compromise of a cni^itor's disputed claims. It may indeed be a question what is the meaning olstliQ introductory words of the section, " Where any compromise or arrangemeifit shall be proposed," and it might be said that there could be no proposition i unless the liquidator were a party to it ; but it must not be overlooked that\ the application to the Court may be made by a creditor, and that, if , sanctioned, the arrangement is to be binding on the liquidator. It is conceived that the right practice is to obtain upon summons an order convening the requisite meeting to consider the scheme: if the necessary majority is obtained, the sanction of the Court may then be sought on petition (o). In Slater v. Darlaston Steel Co. (p), the petition (which was in an action) seems to have been presented in the first instance, and was directed to stand over until after the meeting had been held. A general condition in a debenture that the majority at a meeting shall bind all the debenture-holders as if they had consented, does not extend to enable the majority to bind the minority to something contradictory to the debenture deed (q). Interpretation. 3. The word " Company " in this Act shall mean any company liable to be wound up under " The Companies Act, 1862." 4. This Act shall be read and construed as part of " The Com- panies Act, 1862." cannot be questioned after order made. Compromise nolenfe liqui- dator. Practice. Power of majority by condition in debenture. Act and Companies Act to be read together. ((f) E. p. Stmwiridge, 25 Ch. Div. 266. (e) See ante, p. 485. (/) Slater V. Darlaston Steel Co., W. N. 1877, 165. Contrast Bristol arid North Somerset Railway Co., 6 Eq. 448, 452. ((/) Dynevor Collieries Co., 11 Ch. Div. 605. (7i) Madras Irrigation Co., Chitty, J., March, 1882. (0 Bessemer Steel Co., 1 Ch. D. 251. (A) 30 L. T. 512 ; 31 L. T. 264 ; W. N. 1874, 121, 165 ; 10 Ch. D. 270, u. (0 W. N. 1874, 148. (m) Nicholl v. Eberhardt Co., 61 L. T. 489 ; 1 Megone, 402. (n) International Contract Co., Hankey's^ Case, 26 L. T. 358 ; W. N. 1872, 63 ; ar'^6 Queen's most Excellent Majesty, by and with the advice anA consent of the Lords Spiritual and Temporal, and Commons, i"^ this present Parliament assembled, and by the authority of the same, as follows : 1. This '^ct may be cited for all purposes as " The Companies Short title. Act, 1877-" 2 ^his Act shall, so far as is consistent with the tenor thereof, Constructiou . . . of Act. be construed as one with the Companies Acts, 1862 and 1867, 25 & 26 Vict. and the said Acts and this Act may be referred to as "The soil's, y; ^ CJompanies Acts, 1862, 1867, and 1877." .;. i3i. , 3. The word " capital " as used in the Companies Act, 1867, Constniction _ ■ shall include paid-up capital ; and the power to reduce capital and powers conferred by that Act shall include a power to cancel any lost *° ';«d«ce ' capital, or any capital unrepresented by available assets, or to contained in pay off any capital which may be in excess of the wants of the ^ ^gj "^'' company; and paid-up capital may be reduced either with or without extinguishing or reducing the liability (if any) remaining on the shares of the company, and to the extent to which such liability is not extinguished or reduced it shall be deemed to be preserved, notwithstanding anything contained in the Companies Act, 1867. This Act was passed in consequence of its having been held (rightly or wrongly (r) ) in £e Ebhw Vale Co. (s), that the Act of 1867 allowed only reduction of liability in respect of the amount unpaid on a share, and not reduction of the amount paid upon it. The general effect of this and the other Acts on reduction of capital is ^y discussed in the note to sect. 9 of the Companies Act, 1867. 4. The provisions of the Companies Act, 1867, as amended by Application tli^ Act, shall apply to any company reducing its capital in pur- "f soTsi"^ suan6< of this Act and of the Companies Act, 1867, as amended "^'<='- '^^ i^i- by this SSil (r) See 34Ct. ^"- 302. (s) 4 Ch. D. 827. 586 THE COMPANIES ACT, 1877. Sect. 4. Provided that where the reduction of the capital of a company does not involve either the diminution of any liability m respect of unpaid capital or the payment to any shareholder of any paid- up capital, 1 n 4. (1.) The creditors of the company shall not, unless the Oourt otherwise direct, be entitled to object or required to ponsent to the reduction ; and '7iTlt~shafFn6u*' be necessary before the presenta,tion of the petition for^confir2ine^,th« ^^•i^'^tion to add, and the Court may, if it thinkt it^^?JP«^i«^t f *« ^!'' '^^P^^ IX i.u -i-i, ii, jj-j.- J -s'^he words " and reduced, 30 & 31 Vict. altogether with the addition of ^ n >;• 131. as mentioned in the Companies M,".^' '. In any case that the Court thinks fit so tSiJ,-. ' „ .•' ^ ^, ■' ^ vv I, • u ., ,,Xrks fit the reasons the company to publish m such manner as it thiiniS . . j J. ^1 J X- i'-x -J. 1 I, i.1- ■ t v^tion m regard for the reduction oi its capital or such other iniormw;^^ ^ ° to the reduction of its capital as the Court may thinP^ , it' with a view to give proper information to the public ix; . , „ , to the reduction of its capital by a company, and, if tne"^*^ thinks fit, the causes which led to such reduction. The minute required to be registered in the case of reducti^j^ of capital will show, in addition to the other particulars requirec^ by law, the amount (if any) at the date of the registration of the"^ minute proposed to be deemed to have been paid up on each ' share. "And re- In consequence of tlie words "before the presentation of tlie petition" in duced." sub-sect. (2), a question lias been raised whether on presentation of the petition the words " and reduced " ought not in these cases to be used, unless an order has been obtained dispensing with them. It is conceived that in strictness they ought, and that if it is desired not to use them, application should be made before or upon presentation of the petition. An order was made on such an application in Langdale Chemical Manure Co. (t). The view has been taken, however, that under sub-sect. (2) the Court may at any time dispense with the words, and that accordingly if the petition is presented and brought to a hearing without using them, the Court may then make an order dispensing with them. And certainly numbers of orders have been taken"on this footing. But inasmuch as under Gen. Order, March, 1868, E. 5, the presentation of the petition is to be advertised (as to which, see note to Comp. Act, 1867, s. 15), it is conceived that the words " before the presentation of the peti- tion " were used advisedly, and that the object was that " and reduced " should be used as from presentation, and should appear in the advertise- ments, ^g^ However, many petitions have been presented without using the wor and without applying before the hearing to dispense with them (m). --L,'. T. 384. (0 26 W. R. 434. And iu Sivcr riafc 411 ; 55 L. J. (Ch.) 436 ; r^ City Land Co., Meat Co., W. N. 1885, 14; West African (u) E.g., London anr Telegraph Co., W. N. 1886, 32 ; 34 "W. R. W. N. 1885, 187. THE COMPANIES ACT, 187Y. §87 An application to dispense with the words " and reduced " ."must be Sect. 5. supported by affidavit (x). The Gen. Order, March, 1868, so far as applicable, applies to proceedings Proceedings in under this Act (y). But in point of fact in cases to which the proviso of this Chambers, section applies, the greater part of the Gen. Order is inapplicable. For instance, under the Gen. Order the petition goes first to Chambers, and a certificate of creditors is obtained, and it is not until eight days after certifi- cate that the petition is to be put in the paper (Er. 3, 15). In practice, where the case is one in which creditors cannot object, the petition does not go to chambers except for formal directions, no certificate is made, and the petition is answered at once, and comes into the paper in the usual way. " Proposed to be deemed to be paid up on each share." The fact that Minute. the minute is to be approved by the Court (Companies Act, 1867, s. 15) relieves these words of the imputation of leaving it open to the company to " propose " to " deem " anything to be paid up on a share, quite irrespective of the true facts. 5. Any company limited by stares may so far modify the con- ^"""^^ '" 1.. .,.. , „ '' .. .„,., reduce capital ditions contained m its memorandum oi association, ii authorized by the can- so to do by its regulations as originally framed or as altered by ^^Jg^g'^ "^ special resolution, as to reduce its capital by cancelling any shares shares. which, at the date of the passing of such resolution, have not been taken or agreed to be taken by any person ; and the provisions of " The Companies Act, 1867," shall not apply to any reduction of capital made in pursuance of this section. 6. And whereas it is expedient to make provision for the Reception reception as legal evidence of certificates of incorporation other eopies of than the original certificates, and of certified copies of or extracts documents as -I fT 1 1 • 111/^ • legal evidence. from any documents filed and registered under the Companies 25 & 26 Vict. Acts, 1862 to 1877 : Be it enacted, that any certificate of the in- qq^I'^^ yict corporation of any company given by the registrar or by any c. i3i. assistant registrar for the time being shall be received in evidence c. 26. as if it were the original certificate; and any copy of or extract from any of the documents or part of the documents kept and registered at any of the offices for the registration of joint stock companies in England, Scotland, or Ireland, if duly certified to be a true copy under the hand of the registrar or one of the assistant registrars for the time being, and whom it shall not be necessary to prove to be the registrar or assistant registrar, shall, in all legal proceedings, civil or criminal, and in all cases whatso- ever, be received in evidence as of equal validity with the original document, (a;) J/aa;»m WesioM Co., W.N. 1888,211. Div. 683, See Comp. Act, 1867, s. 15 ()/) Tambraeherry Estates Co., 29 Ch. note. ( 588 ) Short title. Act not to apply to Bank of England. Act to be con- strued with 25 & 26 Vict. c. 89, 30 & 31 Vict. c. 131, and 40 & 41 Vict, c. 26. Kegistration anew of company. 25 & 26 Vict, c. 89. 30 & 31 Vict. 0. 131. 40 & 41 Vict, c. 26. 42 & 43 Vict, c. Y6. 25 & 26 Vict. V. 89. THE COMPANIES ACT, 1879. 42 & 43 ViOT. c. 76. An Act to amend the Law with respect to the Liability of Members of Banking and other Joint Stock Companies ; and for other purposes. [15th August, 1879.] 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 assembled, and by the authority of the same, as follows : 1. This Act may be cited as " The Companies Act, 1879. " 2. This Act shall not apply to the Bank of England. 3. This Act shall, so far as is consistent with the tenor thereof, be construed as one with the Companies Acts, 1862, 1867, and 1877, and those Acts together with this Act may be referred to as the Companies Acts, 1862 to 1879. 4. Subject as in this Act mentioned, any company registered before or after the passing of this Act as an unlimited company may register under the Companies Acts, 1862 to 1879, as a limited company, or any company already registered as a limited company may re-register under the provisions of this Act. The registration of an unlimited company as a limited company in pursuance of this Act shall not affect or prejudice any debts , liabilities, obligations, or contracts incurred or entered into by, to, with, or on behalf of such company prior to registration, and such debts, liabilities, contracts, and obligations may be enforced in manner provided by Part VII. of the Companies Act, 1862 (a), in the case of a company registering in pursuance of that Part. (o) Comp. Act, 1862, ss. 194, 195, 196 (8). The City of Glasgow Bank stopped payment on the 2nd October, 1878 : the liability was unlimited : the debts enormous. The prodigious calls which were made in the liquidation opened the eyes of investors to the dangers of unlimited liability, and this Act was the outcome. The title of the Act refers to "Banking and other Joint Stock Companies," and the companies which have availed themselves of it have been principally the leading joint-stock banks throughout the kingdom. The Act contains some sections (sects. 6, 7, 8) applicable only to banking companies, but the rest of the Act is general, and any unlimited company may avail itself of it. The section speaks simply of " registered " as an unlimited company : not " registered under the Companies Act, 1862 ; " but the latter must clearly be intended. Companies registered as unlimited under the previous Acts could already register as limited (Companies Act, 1862, s. 180). The word THE COMPANIES ACT, 1879. 589 " re-register " also points to a previous registration under these Acts; and Sect. 5. sect. 9 is intelligible only upon the footing that a previous registration under the Companies Acts is contemplated. " Any company already registered as a limited company may re-register." What these words are intended to effect it is difficult to say — possibly that a company limited by shares may register as limited by guarantee ; or vice versa. There seems to be nothing in the subsequent provisions of this Act, or elsewhere, that could enable a company limited by shares to alter its con- stitution in any way, or effect anything at all by re-registering as a company limited by shares. If by re-registration the limited company is to make any alteration in its constitution, it is not easy to understand why the latter half of the section does not extend to it. 5. An unlimited company may, by the resolution (a) passed by Reserve the members when assenting to registration as a limited company company, how under the Companies Acts, 1862 to 1879, and for the purpose of |g°^' g^g^Vict. such registration or otherwise, increase the nominal amount of its c 89. capital by increasing the nominal amount of each of its shares. <, ^31 Provided always, that no part of such increased capital shall ^o & 4i Vict. be capable of being called up, except in the event of and for the 42 & 43 Vict. purposes of the company being wound up. "• ^*'' And, in cases where no such increase of nominal capital may be resolved upon, an unlimited company may, by such resolution as aforesaid, provide that a portion of its uncalled capital shall not be capable of being called up, except in the event of and for the purposes of the company being wound up. A limited company may by a special" resolution (j3) declare that any portion of its capital which has not been already called up shall not be capable of being called up, except in the event of and for the purpose of the company being wound up ; and thereupoii such portion of capital shall not be capable of being called up, except in the event of and for the purposes of the company being wound up. (a) Comp. Act, 1862, s. 179 (4), (5). (/3) Comp. Act, 1862, s. 51. In the case of an unlimited company this section provides for : — (1.) Increase of nominal amount of share for purposes of reserve ; (2.) Eeserve of part of the existing nominal amount where no increase is made. But does not provide for a combination of (1) and (2). Thus, suppose £10 shares, £2 paid, you can : — (1.) Increase to £15 shares, and reserve the new £5 : or (2.) Eetain your shares at £10, and reserve £5, part of it. But you cannot : — (3.) Increase to £15 shares and reserve £10 ; viz., the new £5, and £5 part of the old nominal amount. There seem to be two ways of effecting (3), viz. : — (^ ) If the constitution of the company allows it (which would very rarely be the case) increase your shares as a first step, not under the Act, but under 590 THE COMPANIES ACT, 1879. Sect. 6. 25 & 26 Vict. 0. 89, B. 182, repealed, and liability of bank of issue unlimited in respect of notes. Audit of accounts of banking companioa. the deed of settlement, to £16. Then under the Act reserve £10, part of the £15. {B.) Under the Act increase your shares to £15, and reserve the new £5. Register as a limited company with £15 shares, subject to a reserve liability of £5. Then under the fourth paragraph of the section pass a special reso- lution as a limited company, reserving a further £5- The section clearly allows of the creation of new capital with reserve liability. Under the fourth paragraph of the section a limited company can from time to time by special resolution create reserve liability in respect of its capital for the time being existing. It may thus reserve liability on shares on which there was previously no reserve Kability, or increase the reserve liability on a share some portion of whose uncalled capital is already reserved. Reserve liability created cannot, it is conceived, be afterwards affected by subsequent special resolution. For its creation effects an alteration in the memorandum of association, and there is no authority in the statute to recall the alteration. Upon the question of commercial insolvency for the purposes of a winding- up order reserve capital will be set out of consideration (z). 6. Section one hundred and eighty-two of the Companies Act, 1862, is hereby repealed, and in place thereof it is enacted as follows : — A bank of issue registered as a limited company, either before or after the passing of this Act, shall not be entitled to limited liability in respect of its notes ; and the members thereof shall continue liable in respect of its notes in the same manner as if it had been registered as an unlimited company ; but in case the general assets of the company are, in the event of the company being wound up, insufficient to satisfy the claims of both the note- holders and the general creditors, then the members, after satis- fying the remaining demands of the note-holders, shall be liable to contribute towards payment of the debts of the general creditors a sum equal to the amount received by the note-holders out of the general assets of the company. For the purposes of this section the expression "the general assets of the company " means the funds available for payment of the general creditor as well as the note-holder. It shall be lawful for any bank of issue registered as a limited company to make a statement on its notes to the effect that the limited liability does not extend to its notes, and that the members of the company continue liable in respect of its notes in the same manner as if it had been registered as an unlimited company. 7. (1.) Once at the least in every year the accounts of every banking company registered after the passing of this Act as a limited company shall be examined by an («) Bristol Joint Stock Bank, 44 Ch. D. 703. THE COMPANIES ACT, 1879. 591 auditor or auditors, who shall be elected annually by Sect. 8. the company in general meeting. (2). A director or officer of the company shall not be capable of being elected auditor of such company. (3.) An auditor on quitting office shall be re-eligible. (4.) If any casual vacancy occurs in the office of any auditor the surviving auditor or auditors (if any) may act, but if there is no surviving auditor, the directors shall forthwith call an extraordinary general meeting for the purpose of supplying the vacancy or vacancies in the auditorsbip. (5.) Every auditor shall have a list delivered to him of all books kept by the company, and shall at all reasonable times have access to the books and accounts of the company ; and any auditor may, in relation to such books and accounts, examine the directors or any other officer of the company : Provided that if a banking company has branch banks beyond the limits of Europe, it shall be sufficient if the auditor is allowed access to such copies of and extracts from the books and accounts of any such branch as may have been transmitted to the head office of the banking company in the United Kingdom. (6.) The auditor or auditors shall make a report to the mem- bers on the accounts examined by him or them, and on every balance sheet laid before the company in general meeting during his or their tenure of office ; and in every such report shall state whether, in his or their opinion, the balance sheet referred to in the report is a full and fair balance sheet properly drawn up, so as to exhibit a true and correct view of the state of the com- pany's affairs, as shewn by the books of the company ; and such report shall be read before the company in general meeting : (7.) The remuneration of the auditor or auditors shall be fixed by the general meeting appointing such auditor or auditors, and shall be paid by the company. 8. Every balance sheet submitted to the annual or other meet- Signature ing of the members of every banking company registered after ghe^et'*"*^'' the passing of this Act as a limited company shall be signed by the auditor or auditors, and by the secretary or manager (if any), and by the directors of the company, or three of such directors at the least. 592 THE COMPANIES ACT, 1879. Sect. 9. Application of 25 & 26 Vict. c;. 89, 30 & 31 Vict, c. 131, and 40 & 41 Vict, c. 26. 25 & 26 Vict. c. 89. 30 & 31 Vict. c. 131. 40 & 41 Vict. K. 26, and 42 & 43 Vict. u. 76. Privileges of Act available notwith- standing ) If the company has failed, as to the causes of the failure; and (e) Whether in his opinion further inquiry is desirable as to any matter relating to the promotion, formation, or failure of the company, or the conduct of the business thereof. (2.) The official receiver may also, if he thinks fit, make a further report, or further reports, stating the manner in which the company was formed and whether in his opinion any fraud has been committed by any person in the promotion or formation of the company or by any director or other officer of the company in relation to the company since the formation thereof, and any other matters which in his opinion it is desirable to bring to the notice of the Court. (3.) The Court may, after consideration of any such report, direct that any person who has taken any part in the promotion or formation of the company, or has been a director or officer of the company, shall attend before the Court on a day appointed by the Court for that purpose, and be publicly examined as to the promotion or formation of the company, or as to the conduct of the business of the company, or as to his conduct and dealings as director or officer of the company (a). (4.) The official receiver shall take part in th« examination, and for that purpose may, if specially authorized by the Board of Trade in that behalf, employ a solicitor with or without counsel. (5.) The liquidator where the official receiver is not the liqui- dator and any creditor or contributory of the company may also take part in the examination either personally or by solicitor or counsel, (6.) The Court may put such questions to the person examined as to the Court may seem expedient. (7.) The person examined shall be examined on oath, and it shall be his duty to answer all such questions as the Court may put or allow to be put to him. The person examined shall at his own cost, prior to such examination, be furnished with a copy of the official receiver's report (/3), and shall also at his own cost be entitled to employ at such examination a solicitor with or without THE COMPANIES (WINDING-UP) ACT, 1890. 619 counsel, who shall be at liberty to put such questions to the Sect. 9. person examined as the Court may deem just for the purpose of enabling that person to explain or qualify any answers given by him. Provided always, that if such person is, in the opinion of the Court, exculpated from any charges made or suggested against him, the Court may allow him such costs as the Court in its discretion may think ijt. Notes of the examination shall be taken down in writing, and shall be read over to or by, and signed by, the person examined, and may thereafter be used in evidence against him. They shall also be open to the inspection of any creditor or contributory of the company at all reasonable times, (8.) The Court may, if it thinks fit, adjourn the examination from time to time. (9.) A public examination under this section may, if the Court so directs, and subject to general rules, be held before any judge of County Courts, or before any officer of the Supreme Court, being an official referee, master, registrar in bankruptcy, or chief clerk, or before any district registrar of the High Court named for the purpose by the Lord Chancellor, or in the case of companies being wound up by a Palatine Court, before a registrar of that Court, and the powers of the Court under sub-sections six, seven, and eight of this section may (e:5.cept ag to costs) be exorcised by the person before whom the examination is held. (a) Cf, Coipp. Act, 1862, ss. 115, 117. (j8) Ante, s. 8 (1). 9. (1.) A committee of inspection appointed in pursuance of Committee this Act shall consist of persons being creditors or contributories " '"^^^^ "'°' of the company or persons holding general powers of attorney from such persons in such proportions as may be agreed on by the meetings of creditors and contributories or as, in case of difference, may be determined by the Court. (2.) The committee of inspection shall meet at such times as they from time to time appoint, and, failing such appointment, at least once a month ; and the liquidator or q,ny member of the com- mittee may also call a meeting of the copimittee as and when he thinks necessary. (3.) The committee may act by a majority of their members present at a meeting, but shall not act unless a majority of the committee are present at the meeting. (4.) Any member of the committee may resign his office by notice in writing signed by him, and delivered to the liquidator. (5.) If a member of the committee becomes bankrupt, or com- 620 THE COMPANIES (WINDING-UP) ACT, 1890. Sect. 10. Power of Court to assess against delinquent directors, officers, and promoters. pounds or arranges with his creditors, or is absent from five con- secutive meetings of the committee without the leave of those members of the committee who together with himself represent the creditors or contributories as the case may be, his oiSce shall thereupon become vacant. (6.) Any member of the committee representing creditors may be removed by an ordinary resolution at any meeting of creditors of which seven days' notice has been given, stating the object of the meeting. Any member of the committee representing con- tributories may be removed by an ordinary resolution at any meeting of contributories, of which seven days' notice has been given stating the object of the meeting. (7.) On a vacancy occurring in the office of a member of the committee, the liquidator shall forthwith summon a meeting of creditors or of contributories, as the case may require, for the purpose of filling the vacancy, and the meeting may, by resolution, re-appoint the same or appoint another creditor or contributory to fill the vacancy. (8.) The continuing members of the committee, provided there be not less than two such continuing members, may act notwith- standing any vacancy in their body. (9.) If there be no committee of inspection, any act or thing or any direction or permission by this Act authorized or required to be done or given by the committee may be done or given by the Board of Trade on the application of the liquidator. 10. (1.) Where in the course of the winding up of [a company under the Companies Acts] it appears that [any person who has taken part in the formation or promotion of the company, or] any past or present director, manager, [ ] liquidator, or [other] officer of [the] company, has misapplied or retained [ ] or become liable or accountable for any moneys [or property] 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 [the official receiver, or of the] liquidator [of the company], or of any creditor or contributory of the company [ ], examine into the conduct of such [promoter], director, manager, [liquidator], or other officer [of the company], and compel him to repay any moneys [or restore any property] so misapplied or retaiued, or for which be has become liable or accountable, 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 compensa- tion in respect of such misapplication, retainer, misfeasance, or breach of trust as the Court thinks just. THE COMPANIES (WINDING-UP) ACT, 1890. 621 (2.) The pro-visions of this section shall apply in the winding Sect. 11. up of any company under the Companies Acts whether the same is being wound up by or subject to the supervision of the Court or is being wound up voluntarily, and whether the winding up com- menced before or after the passing of this Act, and notwithstand- ing that the offence is one for which the offender may be criminally responsible. This Act" repeals sect. 165 of the Comp. Act, 1862, and here re-enacts it in substantially the identical words with two additions : (1) that promoters are included, and (2) that the words " or property " are added after " moneys." Tor convenience the section is printed above with such words as are new enclosed in square brackets, and with a blank enclosed in square brackets where anything in sect. 165 has been dropped. The law under the section is to be found in the notes to sect. 165 of the Comp. Act, 1862. 11. (1.) An account, called the Companies Liquidation Payment of Account, shall be kept by the Board of Trade with the Bank of Bank^of" " England, and all moneys received by the Board of Trade in England. respect of proceedings under this Act shall be paid to that account. (2.) Every liquidator of a company which is being wound up by order of the Court shall, in such manner and at such times as the Board of Trade, with the concurrence of the Treasury, direct, pay the money received by him to the Companies Liquidation Account at the Bank of England, and the Board of Trade shall furnish him with a certificate of receipt of the money so paid. (3.) Provided that, if the committee of inspection satisfy the Board of Trade that for the purpose of carrying on the business of the company or of obtaining advances, or for any other reason, it is for the advantage of the creditors or contributories that the liquidator should have an account with any other bank, the Board of Trade shall, on the application of the committee of iuspection, authorize the liquidator to make his payments into and out of such other bank as the committee may select, and thereupon those payments shall be made in the prescribed manner. (4.) If any such liquidator at any time retains for more than ten days a sum exceeding fifty pounds, or such other amount as the Board of Trade in any particular case authorize him to retain, then, unless he explains the retention to the satisfaction of the Board of Trade, he shall pay interest on the amount so retained in excess at the rate of twenty pounds per centum per annum, and shall be liable to disallowance of all or such part of his remunera- tion as to the Board shall seem just, and to be removed from his 622 THE COMPANIES (WINDING-UP) ACT, 1890. Sect. X2. Powers of liquidator. 25 & 26 Vict. c. 89. Delegation to liquidator of certain powers of Court. Power for oiHcial receiver to ofSce by the Board, and shall be liable to pay any expenses occasioned by reason of his default. (5.) All payments out of money standing to the credit of the Board of Trade in the Companies Liquidation Account shall be made by the Bank of England in the prescribed manner. (6.) No liquidator of a company which is being wound lip by order of the Court shall pay any sums received by him as liquidator into his private banking account. 12. (1.) The liquidator of a company which is being wound up by the Court may, with the sanction either of the Court or of the committee of inspection, carry on the business of the company, or bring or defend any legal proceeding in the name and on behalf of the company, or exercise any of the powers conferred by section one hundred and fifty-nine or section one hundred and sixty of the Companies Act, 1862. (2.) The liquidator of any such company may, without the sanction of the Court or of the committee of inspection, exercise any of the other powers conferred on the liquidator by section ninety-five of the Companies Act, 1862. (3.) The exercise by the liquidator of the powers referred to in this section shall be subject to the control »f the Court, and any creditor or contributory may apply to the Court with respect to any exercise or proposed exercise of any of those powers. (4.) The liquidator of a company which is being wound up by order of the Court may, with the sanction either of the Court or of the committee of inspection, employ a solicitor or other agent to take any proceedings or do any business which the liquidator is unable to take or do himself. The sanction aforesaid must be a sanction obtained before the employment, except in cases of urgency, and in such cases it must be shewn that no undue delay took place in obtaining the sanction. 13. General rules may be made for requiring or enabling all or any of the powers and duties conferred and imposed on the Court by sections ninety-one, ninety-eight, ninety-nine, one hundred, one hundred and two, and one hundred and seven of the Companies Act, 1862, to be exercised or performed by the liquidator as an ofBicer of the Court, and subject to the control of the Court. Provided that the liquidator shall not, without the special leave of the Court, rectify the register of members, and shall not make any call without either the special leave of the Court or the sanction of the committee of inspection. 14. Where a company is being wound up voluntarily or subject to the supervision of the Court, the official receiver attached to THE COMPANIES (WINDING-UP) ACT, 1890. 623 the Court having jurisdiction to wind up the company may pre- Sect. 15. sent a petition that the company be wound up by the Court, and ^ppiy as to thereupon, if the Court is satisfied that the voluntary winding-up ^.".'"^'^'^y or winding'up subject to supervision cannot be continued with due regard to the interests of the creditors or contributories, it may make an order that the company be wound up by the Court. 15. (1.) If the winding-up of a company is not concluded Information within one year after its commencement, the liquidator of the ;„ uqu^aa- company shall, at such intervals as may be prescribed, until the ^'o^^- winding-up is concluded, send to the registrar of joint stock com- panies a statement in the prescribed form and containing the prescribed particulars with respect to the proceedings in and posi- tion of the liquidation. Any person stating himself in writing to be a creditor or contributory of the company shall be entitled, by himself or by his agent, at all reasonable times, on payment of the prescribed fee, to inspect the statement submitted in pursuance of this section, and to a copy thereof, or extract therefrom. But any person untruthfully so stating himself to be a creditor or contributory shall be guilty of a contempt of Court, and shall be punishable accordingly on the application of the liquidator or of the official receiver. (2.) If a liquidator makes default in complying with the require- ments of this section he shall be liable to a fine not exceeding fifty pounds for each day during which the default continues. (3.) If it appears from any such statement or otherwise that any liquidator of a company has in his hands or under his control any money representing unclaimed or undistributed assets of the com- pany which have remained unclaimed or undistributed for six months after the date of their receipt, the liquidator shall forth- with pay the same to the Companies Liquidation Account at the Bank of England, Every such liquidator shall be entitled to the prescribed certificate of receipt for the moneys so paid, and that certificate shall be an effectual discharge to him in respect thereof (4.) For the purpose of ascertaining and getting in any money payable into the Bank of England in pursuance of this section, the like powers may be exercised and by the like authority as are exerciseable under section one hundred and sixty-two of the Bankruptcy Act, 1883, for the purpose of ascertaining and getting in the sums, funds, and dividends referred to in that section. (5.) Any person claiming to be entitled to any money paid into the Bank of England in pursuance of this section may apply to the Board of Trade for payment of the same, and the Board of Trade may, on a certificate by the liquidator that the person 624 THE COMPANIES (WINDING-UP) ACT, 1890. Sect. 16. Investment of surplus funds on general account. Separate accounts of particular estates. claiming is entitled, make an order for the payment to that person of the sum due. Any person dissatisfied with the decision of the Board of Trade in respect of any claim made in pursuance of this section may appeal to the High Court. (6.) This section shall apply whether the winding up of the company has commenced before or after the commencement of this Act. 16. (1.) Whenever the cash balance standing to the credit of the Companies Liquidation Account is in excess of the amount which in the opinion of the Board of Trade is required for the time being to answer demands in respect of companies' estates, the Board of Trade shall notify the same to the Treasury, and shall pay over the same or any part thereof, as the Treasury may require, to the Treasury, to such account as the Treasury may direct, and the Treasury may invest the said sums, or any part thereof, in Government securities, to be placed to the credit of the said account. (2.) Whenever any part of the money so invested is, in the opinion of the Board of Trade, required to answer any demands in respect of companies' estates, the Board of Trade shall notify to the Treasury the amount so required, and the Treasury shall thereupon repay to the Board of Trade such sum as may be re- quired to the credit of the Companies Liquidation Account, and for that purpose may direct the sale of such part of the said securities as may be necessary. (3.) The dividends on the investments iinder this section shall be paid to such account as the Treasury may direct, and regard shall be had to the amount thus derived in fixing the fees payable in respect of proceedings in the winding up of companies. 17. (1.) An account shall be kept by the Board of Trade of the receipts and payments in the winding up of each company, and when the cash balance standing to the credit of the account of any company is in excess of the amount which, in the opinion of the committee of inspection, is required for the time being to answer demands in respect of that company's estate, the Board of Trade shall, on the request of the committee, invest the amount not so required in Government securities, to be placed to the credit of the said account for the benefit of the said company. (2.) Whenever any part of the nioney so invested is, in the opinion of the committee of inspection, required to answer any demands in respect of the estate of the company of the assets of which the money so invested formed part, the Board of Trade shall, on tlie request of the committee, raise such sum as may be THE COMPANIES (WINDING-UP) ACT, 1890. 625 required by the sale of such part of the said securities as may be Sect. 18. necessary. (3.) The dividends on the investments made under this section shall be paid to the credit of the company of the assets of which the money so invested formed part. If there is Ho commitf ee of inspection see b. 9 (9). 18. When the balance at the credit of any company's account in interests on tie hands of the Board of Trade exceeds two thousand pounds, and aboTe^two the liquidator gives notice to the Board of Trade that the excess thousand .!„, K 1 T ■ T • 1 pounds. IS not required for the purposes of the liquidation, then such company shall be entitled to interest upon such excess at the rate of two per centum per annum. 19. The Treasury may from time to time issue to the Board of Certain Trade in aid of the votes of Parliament, out of the receipts arising fees to be" from fees, fee stamps, and dividends on investments by the Trea- applied in sury under this Act, any sums which may be necessary to meet the penditure. charges estimated by the Board of Trade in respect of salaries and expenses under this Act. 20. (1.) Every liquidator of a company which is being wound Audit of up by order of the Court shall, at such times as may be prescribed, amounts'' but not less than twice in each year during his tenure of office, send to the Board of Trade, or as they direct, an account of his receipts and payments as such liquidator. (2.) The account shall be in a prescribed form, shall be made in duplicate, and shall be verified by a statutory declaration in the prescribed form, (3.) The Board of Trade shall cause the accounts so sent to be audited, and for the purpose of the audit the liquidator shall furnish the Board with such vouchers and information as the Board may require, and the Board may at any time require the produc- tion of and inspect any books or accounts kept by the liquidator. (4.) When any such account has been audited, one copy thereof shall be filed and kept by the Board, and the other copy shall be filed with the Court, and each copy shall be open to the inspec- tion of any creditor, or of any person interested. (5.) The Board of Trade shall cause the account or a summary thereof when audited to be printed, and shall send a printed copy thereof by post to every creditor and contributory. 21. Every liquidator of a company which is being wound up Books to be, by order of the Court shall keep, in manner prescribed, proper iiq^„ya^oj_ books in which he shall from time to time cause to be made entries or minutes of proceedings at meetings, and of such other 2S 626 THE COMPANIES (AVINDING-UP) ACT, 1890. Release of liquidators. Sect. 22. matters as may be prescribed, and any creditor or contributory of the company may, subject to the control of the Court, personally or by his agent inspect any such books. 22. (1.) When the liquidator of a company which is being wound up by order of the Court has realized all the property of the company, or so much thereof as can, ia his opinion, be realised without needlessly protracting the liquidation, and distributed a final dividend, if any, to the creditors, and adjusted the rights of the contributories between themselves, and made a final return, if any, to the contributories, or has resigned, or has been removed from his office, the Board of Trade shall, on his application, cause a report on his accounts to be prepared, and, on his complying with all the requirements of the Board, shall take into considera- tion the report, and any objection which may be urged by any creditor, or contributory, or person interested against the release of the liquidator, and shall either grant or withhold the release accordingly, subject nevertheless to an appeal to the High Court. (2.) Where the release of a liquidator is withheld the Court may, on the application of any creditor, or contributory, or person interested, make such order as it thinks just, charging the liquidator with the consequences of any act or default he may have done or made contrary to his duty. (3.) An order of the Board releasing the liquidator shall dis- charge him from all liability in respect of any act done or default made by him in tlie administration of the affairs of the company, or otherwise in relation to his conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact. (4.) Where the liquidator has not previously resigned or been removed, his release shall operate as a removal of him from his office. 28. (1.) Subject to the provisions of the Companies Acts, the liquidator of a company which is being wound up by order of the Court shall, in the administration of the property of the company and in the distribution thereof amongst its creditors, have regard to any directions that may be given by resolution of the creditors or contributories at any general meeting, or by the committee of inspection, and any directions so given by the creditors or contributories at any general meeting shall in case of conflict be deemed to override any directions given by the committee of inspection. (2.) The liquidator may from time to time summon general meetings of the creditors or contributories for the purpose of Discre- tionary powers of liquidator and control thereof. THE COMPANIES (WINDING-UP) ACT, 1890. 627 ascertaining their wishes, and it shall be his duty to summon Sect. 24. meetings at such times as the creditors or contributories, by resolution, either at the meeting appointing the liquidator or otherwise, may direct, or whenever requested in writing to do so by one-tenth in value of the creditors or contributories as the case may be. (3.) The liquidator may apply to the Court in manner pre- scribed for directions in relation to any particular matter arising under the winding-up (a). (4.) Subject to the provisions of the Companies Acts, the liquidator shall use his own discretion in the management of the estate and its distribution among the creditors. (a) Gf. Comp. Act, 1862, s. 138. 24. If any person is aggrieved by any act or decision of the Appeal to liquidator of a company which is being wound up by order of the ]iq"idatOT."''' Court, he may apply to the Court, and the Court may confirm, reverse, or modify the act or decision complained of, and make such order in the premises as it thinks just. 25. (1.) The Board of Trade shall take cognizance of the Control of conduct of liquidators of companies which are being wound up -r°*j^ "^^j. by order of the Court, and in the event of any such liquidator liquidators. not faithfully performing his duties and duly observing all the requirements imposed on him by statute, rules, or otherwise, with respect to the performance of his duties, or in the event of any complaint being made to the Board by any creditor or contributory in regard thereto, the Board shall inquire into the matter, and take such action thereon as may be deemed expedient. (2.) The Board may at any time require any liquidator of a company which is being wound up by order of the Court to answer any inquiry made by them in relation to any winding-up in which the liquidator is engaged, and may, if the Board think fit, apply to the Court to examine on oath the liquidator or any other person concerning the winding-up. (3.) The Board may also direct a local investigation to be made of the books and vouchers of the liquidator of any company which is being wound up by order of the Court. 26. (1.) The Lord Chancellor may, with the concurrence of General the President of the Board of Trade, make general rules for carry- \^^^^ *"'' ing into effect the objects of this Act. (2.) All general rules made under the foregoing provisions of this section shall be laid before Parliament within three weeks after they are made, if Parliament is then sitting, and if Parlia- 2s2 628 THE COMPANIES (WINDING-UP) ACT, 1890. Sect. 27. Officers atid remunera- tioDj Anhual accounts of receipts and expenditure in respect of winding-up proceedingSi ment is not sitting, within three weeks after the beginning of the next session of Parliament, and shall be judicially noticed, and shall have effect as if enacted by this Act. (3.) Any general rule made under this section shall not come into operation until the expiration of one month after the rule has been made and issued. (4.) There shall be paid in respect of the proceedings under this Act such fees as the Lord Chancellor may, with the sanction of the Treasury, direct, and the Treasury may direct by whom and in what manner the same are to be collected and accounted for^ and to what account they are to be paid. (5.) All rules made and directions given by the Lord Chancellor under the foregoing provisions of this section shall be adopted by the authority for the time being empowered to make rules for regulating the practice or procedure in the Chancery Court of the County Palatine of Lancaster, but as so adopted shall have effect with the substitution of the words " vice-chancellor " for the word "judge," and the word "registrar" for the words "chief clerk," and of the words " chambers of the registrar " for the words "chambers of the judge" and "judge's chambers/' and any directions as to the remuneration to be allowed to officers of that Court in respect of proceedings under this Act shall be subject to the sanction of the Chancellor of the Duchy and County Palatine of Lancaster. 27. (1.) The Board of Trade may, with the approval of the Treasury, appoint such additional officers as may be required by the Board for the execution of this Act, and may dismiss any person so appointed. (2.) The Board of Trade, with the concurrence of the Treasury, shall direct whether any and what remuneration is to be allowed to any officer of, or person attached to, the Board of Trade, per- forming any duties under this Act, and may vary, increase, or diminish such remuneration as they may think fit. (3.) The Lord Chancellor, with the concurrence of the Treasury, shall direct whether any and what remuneration is to be allowed to any person (other than an officer of the Board of Trade) performing any duties under this Act, and may vary, increase, or diminish such remuneration as he may think fit. 28. (1.) The Treasury shall annually cause to be prepared and laid before both Houses of Parliament an account for the year ending with the thirty-first day of March, showing the receipts and expenditure during that year in respect of proceedings under this Act, whether commenced under this or any previous Act, and THE COMPANIES (WINDING-UP) ACT, 1890. 629 the provisions of section twenty-eight of the Supreme Court of Sect. 29. Judicature Act, 1875, shall apply to the account as if the account 33 & 39 vict. had been required by that section. "■ '^'^■ (2.) The accounts of the Board of Trade under this Act shall be audited in such manner as the Treasury direct, and, for the purpose of the account to be laid before Parliament, the Board of Trade shall make such returns and give such information as the Treasury direct. 29. (1). The officers of the Courts acting in the winding up Returns by of companies shall make to the Board of Trade such returns of the business of their respective courts and ofBces, at such times and in such manner and form as may be prescribed, and from such returns'the Board of Trade shall cause books to be prepared which shall, under the regulations of the Board, be open for public information and searches. (2.) The Board of Trade shall also cause a general annual report of all matters, judicial and financial, within this Act to be pre- pared and laid before both Houses of Parliament. 30. (1.) All documents purporting to be orders or certificates Proceedings made or issued by the Board of Trade and to be sealed with the Trad°e!'^ " seal of the Board, or to be signed by a secretary or assistant secretary of the Board, or any person authorized in that behalf by the President of the Board, shall be received in evidence and deemed to be such orders or certificates without further proof imless the contrary is shown. (2.) A certificate signed by the President of the Board of Trade that any order made, certificate issued, or act done, is the order^ certificate, or act of the Board of Trade, shall be conclusive evidence of the fact so certified. 31. (1.) This Act shall not, except where it is expressed to Application have a more extended application, apply to any company which ° is being wound up in pursuance of an order made before the commencement of this Act. (2.) For the purposes of this Act a company shall not be deemed to be wound up by order of the Court if the order is to continue a winding-up under the supervision of the Court. (3.) This Act shall not apply to any company unless the regis- tered office of the company is situate in England or Wales. , 32. (1.) In this Act, uuless the context otherwise requires, — Interpreta- " The Companies Acts " means the Companies Act, 1862, and ' '"" ° *^'^""'' the Acts amending the same. " General rules " means general rules made under this Act, and includes forms. 630 THE COMPANIES (WINDING-UP) ACT, 1890. Sect. 33. 25 & 26 Vict, c. 89, Repeal, CommencQ- ment of Act. Short title. " Prescribed " means prescribed by general rules. " Stannaries Court " means the Court of the Vice- Warden of the Stannaries. (2.) In Part IV. of the Companies Act, 1862, and in this Act the expression " the Court," when used in relation to a company shall, unless the contrary intention appears, mean the Court having jurisdiction under this Act to wind up the company. (3.) For the purposes of this Act the expression " registered ofQce of a company " shall mean the place which has been the registered office of the company for the greater part of the six months immediately preceding the presentation of the petition for winding up the company, and shall include, in the case of an unregistered company, any place which in pursuance of section one hundred and ninety-nine of the Companies Act, 1862, is to be deemed the registered office of the company for the purpose of the winding up thereof. 33. The enactments mentioned in the Second Schedule to this Act are hereby repealed, as to England and Wales, to the extent appearing in the third column of that schedule. 34. This Act shall come into operation on the first day of January one thousand eight hundred and ninety-one. 35. (1,) This Act may be cited as the Companies (Winding- up) Act, 1890. (2.) This Act and the Companies Acts, 1862 to 1886, may be cited together as the Companies Acts, 1862 to 1890. SCHEDULES. Section 6. FIEST SCHEDULE. Meetings of Creditors and Contributories. (1.) The meetings of creditors and contributories shall be held within twenty-one days after the date of the winding-up order, or within such further time as the Court may approve, unless a special manager has been appointed, in which case such meetings shall be held within one month from the date of such order, or within such further time as aforesaid. (2.) The official receiver of the company shall summon the meeting by giving not less than seven days' notice of the time and place thereof in the London Gazette and in a local paper. Notice of such meeting shall also be sent by post to every person appearing by the company's books to be a creditor of the company and to every member of the company. (3.) The official receiver shall also, as soon as practicable, send to each creditor mentioned in the company's statement of affairs (/), and to each person appearing from the company's books, or otherwise, to be a contributory of the company, a sum- mary of the company's s(atement of affairs (/), including the causes of its failure, (/) Ante, ». 7. THE COMPANIES (WINDING-UP) ACT, 1890. 631 and any observations thereon wbioh the ofBoial receiver may think fit to make ; Sect, 6, but the proceedings at any such meeting shall not be invalidated by reason of any summary or notice required by these rules not having been sent or received before the meeting. (4.) The meeting shall be held at such place as is in the opinion of the official receiver most convenient for the majority of the creditors and contributoriea. (5.) The official receiver, or some person nominated by him, shall be the chairman at the meetings. (6.) A person shall not be entitled to vote as a creditor unless he has duly proved a debt to be due to him from the company, and the proof has betn duly lodged before the time appointed for the meeting. (7.) A creditor shall not vote in respect of any unUquidated or contingent debt, or any debt the value of which is not ascertained. (8.) For the purpose of voting, a secured creditor shall, unless he surrenders his security, state in his proof the particulars of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to vote only in respect of the balance (if any) due to him, after deducting the value of his security. If he votes in respect of his whole debt he shall be deemed to 1 ave surrendered hia security, unless the Court on application ia satisfied that the omission to value the security haa arisen from inadvertence. (9.) A creditor shall not vote in respect of any debt on or secured by a current bill of exchange or promissory note held by him, unless he is willing to treat the liability to him thereon of every person .who is liable thereon antecedently to the company, and against whom a receiving order in bankruptcy has not been made, as a security in hia hands, and to estimate the value thereof, and for the purposes of voting, but not for the purposes of dividend, to deduct it from his proof. (10.) It shall be competent to the official receiver, or to the liquidator, within twenty-eight days after a proof estimating the value of a security as aforesaid had been made use of in voting at any meeting, to require the creditor to give up the security for the benefit of the creditors generally on payment of the value so estimated, with an addition thereto of twenty per centum. Provided, that where a creditor haa put a value on such security, he may, at any time before he has been required to give up such security as aforesaid, correct such valuation by a new proof, and deduct such new value from his debt, but in that case such addition of twenty per centum shall not be made if the liquidator requires the security to be given up. (11.) The chairman of the meeting shall have power to admit or reject a proof for the purpose of voting, but his decision shall be subject to appeal to the Court, If he is in doubt whether the proof of a creditor should be admitted or rejected be shall mark the proof as objected to, and shall allow the creditor to vote, subject to the vote being declared invalid in the event of the objection being sustained. (12.) A creditor or a contributory may vote either in person or by proxy. (13.) Every instrument of proxy shall be iu the prescribed form, and shall be issued by an official receiver, or by the liquidator of the company, and every written part thereof shall be in the handwriting of the person giving the proxy, or of any manager or clerk or other person in his regular employment, or of a commissioner to administer oaths in the Supreme Court of Judicature in England. (14.) General and special forms of proxy shall be sent to the creditors and con- tributories with the notice summoning the meeting, and neither the name nor descrip- tion of the official receiver or of any other person shall be printed or inserted in the body of any instrument of proxy before it ia so sent. (15.) A creditor or a contributory may give a general proxy to his manager or clerk, or any other person in his regular employment. In such case the instrument of proxy shall state the relation in which the person to act thereunder stands to the creditor or contributory, (16.) A creditor or a contributory may give a special proxy to any person to vote at any specified meeting, or adjournment thereof — (a) for or against the appointment or continuance in office of any specified person as liquidator or member of the committee of inspection, and (6) on all questions relating to any matter other than those above referred to and arising at any specified meeting or adjournment thereof. (17.) A proxy shall not be used unless it is deposited with the official receiver before the meeting at which it is to be used. (18.) Where it appears to the satisfaction of the Court that any solicitation has been used by or on behalf of a liquidator in obtaining proxies or in procuring the appointment of liquidator, except by the direction of a meeting of creditors or oon- tributoriea, the Court shall have power, if it think fit, to order that no remuneration shall be allowed to the person by whom_or on whose_ behalf such solicitation may 632 THE COMPANIES (WINDING-UP) ACT, 3 890. Sect 6, liave been exercised, notwithatanding any resolution of the committee of inspection ' '- — or of the creditors or contributories to the contrary. (19.) A creditor or a contributory may appoint the ofBcial receiver to act in manner prescribed as bis general or special proxy. (20.) The chairman of the meeting may, with the consent of the meeting, adjourn the meeting from time to time and from place to place. (21.) A meeting aliall not be competent to act for any purpose except the election of a chairman, the proving of debts, and the adjournment of the meeting, unless there are presenter represented thereat, at least three creditors or contributories, or all the creditors or contributories if their number does not exceed three. (22.) If within half an hour from the time appointed for the meeting a quorum of creditors or contributories is not present or represented, the meeting shall be adjourned to the same day in the following week at the same time and place, or to such other day as the chairman may appoint, not being leas than seven or more than twenty-one days. (23.) The cl'iairman of the meeting shall cause minutes of the proceedings at the meeting to be drawn up, and fairly entered in a book kept for that purpose, and the minutes shall be signed by him or by the chairman of the next ensuing meeting. (24.) No person acting either under a general or a special proxy shall vote in favour of any resolution which would directly or indirectly place himself, his partner or employer, in a position to receive any remuneration out of the estate of the com- pany otherwise than as a creditor rateably with the other creditors of the company : Provided that where any person holds special proxies to vote for an application to the Court in favour of the appointment of himself as liquidator he may use the said proxies and vote accordingly. Action 31. SECOND SCHEDULE. Enactments Eepealbd (g) as to England AND Wales (A). Session and Chapter. Title or Short Title. Extent of Repeal. 23 & 26 Vict. c. 89- The Companies Act, 1862 - Section eighty-one. In section ninety-two the words " The Court shall determine whether any and what security is to be given by any official liquidator on his ap- pointment." Section ninety-seven. Section one hundred and sixty-five. 30 & 31 Viot. u. 131 The Companies Act, 1867- Sections forty-one to forty- six. (3) Ante, s. 33. (A) s, 31 (3). ( 633 ) THE DIRECTOES LIABILITY ACT, 1890. 53 & 5i YiCT. c. 64. An Act to amend the Law relating to the Liability of Directors and others for Statements in Prospectuses and other Documents soliciting applications for Shares or Debentures. [18th August, 1890.] 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 assembled, and by the authority of the same, as follows : 1. This Act may be cited as the Directors Liability Act, 1890. Short title. 2. This Act shall be construed as one with the Companies Acts, C"°s'''uo- 1862 to 1890. 3. (1.) Where after the passing of this Act a prospectus or Liability for ..... i 1 •! J- 1 ■ 1 1 J. statements in notice invites persons to subscribe lor shares m or debentures or prospectus. debenture stock of a company, every person who is a director of the company at the time of the issue of the prospectus or notice, and every person who having authorized such naming of him is named in the prospectus or notice as a director of the company or as having agreed to become a director of the company either immediately or after an interval of time, and every promoter of the company, and every person who has authorized the issue of the prospectus or notice, shall be liable to pay compensation to all persons who shall subscribe for any shares, debentures, or debenture stock on the faith of such prospectus or notice for the loss or damage they may have sustained by reason of any untrue statement in the prospectus or notice, or in any report or memorandum appearing on the face thereof, or by reference incorporated therein or issued therewith, unless it is proved — (a.) With respect to every such untrue statement not purporting to be made on the authority of an expert, or of a public official document or statement, that he had reasonable ground to believe, and did up to the time of the allot- ment of the shares, debentures, or debenture stock, as the case may be, believe, that the statement was true ; and (6.) With respect to every such untrue statement purporting to be a statement by or contained in what purports to be a copy of or extract from a report or valuation of an 634 THE DIBECTOHS LIABILITY ACT, 1890. Sect. 3. engineer, valuer, accountant, or other expert, that it fairly represented the statement made by such engineer, valuer, accountant, or other expert, or was a correct and fair copy of or extract from the report or valuation. Provided always, that notwithstanding that such untrue statement fairly represented the statement made by such engineer, valuer, accountant, or other expert, or was a correct and fair copy of an extract from the report or valuation, such director, person named, promoter, or other person, who authorized the issue of the prospectus or notice as aforesaid, shall be liable to pay compensation as aforesaid if it be proved that he had no reasonable ground to believe that the person making the statement, report, or valuation was competent to make it ; and (c.) With respect to every such untrue statement purporting to be a statement made by an ofScial person or contained ia what purports to be a copy of or extract from a public ofHcial document, that it was a correct and fair repre- sentation of such statement or copy of or extract from such document, or unless it is proved that having consented to become a director of the company he withdrew his consent before the issue of the prospectus or notice, and that the prospectus or notice was issued without his authority or consent, or that the prospectus or notice was issued without his knowledge or consent, and that on becom- ing aware of its issue he forthwith gave reasonable public notice that it was so issued without his knowledge or consent, or that after the issue of such prospectus or notice and before allotment thereunder, he, on becoming aware of any untrue statement therein, withdrew his consent thereto, and caused reasonable public notice of such withdrawal, and of the reason therefor, to be given. (2.) A promoter in this section means a promoter who was a party to the preparation of the prospectus or notice, or of the portion thereof containing such untrue statement, but shall not include any person by reason of his acting in a professional capacity for persons engaged in procuring the formation of the company. (3.) Where any company existing at the passing of this Act, which has issued shares or debentures, shall be desirous of obtain- ing further capital by subscriptions for shares or debentures, and for that purpose shall issue a prospectus or notice, no director of such company shall be liable in respect of any statement therein, unless he shall have authorized the issue of such prospectus or notice, or have adopted or ratified the same. THE mEECTOES LIABILITY ACT, 1890. 635 (4.) In this section the word " expert " includes any person Sect. 3. whose profession gives authority to a statement made by him. Upon liability for misrepresentation in prospectus it has Mtterto been Liability necessary to have regard to two separate beads of law, viz. : ^°^ ™ntat'ion (i.) The general law (ante, p. X24, et seq.) enforced by the action for deceit, fn p™spectus. in which the defendant is made liable for untrue statement, upon which the plaintiff has acted to his damage. (ii.) The statutory law contained in sect. 38 of the Comp. Act, 1867 (ante, p. 570), under which the particular persons described in that section, apart from fraud or misstatement, are guilty of a statutory fraud if they do not comply with certain statutory requirements. (iii.) This Act adds a third head. And the first observation upon the Act is that it appears to be wholly cumulative upon the existing law. It does not modify, repeal, or affect either (i.) or (ii.), unless there be a possible case in which a person attacked under (i.) should be able to defend himself by shewing that he brings himself within some one of the provisoes in the Act. Next consider that either one or two or all of these heads will apply according as the plaintiff has suffered damage by contracting with the company in one way or in another way. Thus : — If he is damaged by having taken shares he may sue under either (i.) (ii.) or (iii.). If he is damaged by having taken debentures or debenture stock he may sue under (i.) or (iii.) but not under (ii.). If he is damaged not by having taken shares, debentures, or debenture stock, but (if such a case should ever present itself) by having otherwise advanced money to or in any way contracted with the company, he can sue under (i.) but not under (ii.) or (iii.). Next consider who can be attacked under these several heads. Persons (I.) Under (i.) any one who has been guilty of deceit can be attacked. \v^^l ^'"'"^ CII.) Under (ii,) the person attacked must be shown to be promoter, director, or ofiBcer of the company knowingly issuing the prospectus or notice. (III.) Under (iii.) the persons open to attack are of four classes ; viz. : (A.) A person who is director at the time of the issue of the prospectus. (B.) A person who authorized the naming of himself in the prospectus as a director, or as having agreed to become a director either immediately or after an interval, (C.) A promoter. (D.) A person who authorized the issue of the prospectus. Each of these four classes is under the Act liable for untrue statement in the prospectus, or in any report or memorandum appearing on the face thereof, or by reference incorporated therein or issued therewith, subject to defences allowed by the Act, which relate to either (1) the person attacked Defences : or (2) the statement made. Defences which bei,ate to the Peeson attacked. which relate (A.) The director. to the person No. I.^ — In the case of a company existing at the passing of the Act, which ^t'^cljed ; has (qucere at the passing of the Act) issued shares or debentures, a special defence is by sect. 3 (3) open to the director, viz. that he did not authorize the issue of the prospectus, or adopt or ratify it. This is not a defence in any other case under sect. 3, except in conjunction with something further, as presently stated. 636 THE DIRECTORS LIABILITY ACT, 1890. Sect. 3. No. 2.— It is a defence that, having consented to become a director, he with- drew his consent before the issue of the prospectus, and that the prospectus was issued without his authority or consent. No. 3. — It is a defence that the prospectus was issued without his know- ledge or consent, and that on becoming aware of its issue he forthwith gave reasonable public notice that it was so issued without his knowledge or consent. No. 4. — It is a defence that after the issue of the prospectus and before allotment he, on becoming aware of an untrue statement, withdrew his con- sent thereto, and caused to be given {quaere same as "gave" in No. 3?) reasonable public notice of such withdrawal and of the reason therefor. (B.) The person who has authorized the naming of himself, &c. It is observable that the "authorized naming as a director" of the earlier part of sect. 3 is not found again in the later part of the section, but the ex- pression used is " consented to become a director." The latter expression must probably be taken as used with the intention of including the person described under (B.) as well as the person described under (A.). This being so, it would seem that the same four defences are open to person (B), subject as to No. 1 to a question whether " director " in sect. 3 (3) includes a person who at the date of issue was not but had authorized his being named as a director. (0.) Tlie promoter. Sect. 3. (2) cuts down this class to the promoter who was a party to the preparation of the prospectus or of the portion containing the untrue state- ment, excluding persons acting professionally. Defences Nos. I, 2 do not avail him if not a director. No. 3 may possibly but improbably be open to him. No. 4 is open to him. (D.) Tlie person who authorized the issue. The only defence under this head open to him is No. 4 ; assuming of course that he is not a director or promoter. which relate DEFENCES WHICH EBLATE TO THE STATEMENT MADE. to the state- Truth, as was pointed out in Berry v. Peek (i), is in the mouth of any man a thing not absolute but relative to the belief of the speaker. But an " untrue statement in the prospectus or notice " under this Act is, it is conceived, a statement untrue in fact. Now, that a statement should be absolutely true in fact is in the vast majority of cases beyond the reach of human capacity. In many, perhaps most, cases that which we are pleased to call true is only that to which human knowledge has for the time being attained. And even in matters which are capable of being stated more or less nearly with exacti- tude, the statement is inevitably to a large extent only approximate. Thus where a field is stated to contain fifteen acres or a town is said to be situate on a navigable river twenty miles from the sea, such a statement obviously is but approximate. Again, if as matter of expression the language of a prospectus is to be absolutely true, the most prolix language that conveyancers ever knew would not suflSce so to qualify any but the most simple statement as to make it absolutely true. One may anticipate, therefore, that " untrue statement " as here used must be and will be largely qualified so as to descend from the lofty pedestal flf absolute truth to something which approaches in material respects as nearly to truth as is reasonably possible. Next, statements are for the purposes of this Act divisible into statements which do and statements which do not purport to be made on the authority (0 14 App. Cas. 337; and see ante, pp. 124, 125. THE DIRBCTOES LIABILITY ACT, 1890. 637 of an expert or of a public ofacial document or statement. For convenience Sect. 4. the former may be called " derivative statements," and the latter " original statements." As to original statements, it is a defence, sect. 3 (1) (a), that the person attacked had reasonable ground to believe and did to allotment believe that the statement was true. As to derivative statements, it is a defence that the statement fairly repre- sented the statement of or was a fair copy of or extract from the report of an expert, unless it is shewn that the person attacked had no reasonable ground to believe that the expert was competent, sect. 3 (1) (6). [Note, however, that if the competent expert was fraudulent and his report false, and the person attacked knew it to be false, he will escape so far as this Act is concerned.] And it is a defence that the statement was a correct and fair representa- tion of the statement of an oflBcial person, or a correct and fair copy of or extract from a public ofllcial document, sect. 3 (I) (c). 4. Where any such, prospectus or notice as aforesaid contains indemnity where name the name of a person as a director of the company, or as having ^^ ^^ person agreed to become a director thereof, and such person has not con- has been sented to become a director, or has withdrawn his consent before Inserted as a the issue of such prospectus or notice, and has not authorized or eeem&er, one thousand eight hundred and seventy-two, and business. thereafter (a), within nine months after the date of each such investigation as aforesaid into its financial condition, prepare a statement of its life assurance and annuity business in the form contained in the sixth schedule to this Act, each of such statements to be made up as at the date of the last investigation, ivhether such investigation be made p-eviously or subsequently to the passing of this Act (a) : Provided as follows : — THE LIFE ASSURANCE COMPANIES ACT, 1870. 645 (1.) If the next financial investigation after the passing of this Sect. 9. Act of any company fall during the year one thousand eight hundred and seventy-three, the said statement of such company shall be prepared within nine months after the date of such investigation, instead of on or lefore the thirty-first day of December, one thousand eight hundred and seventy-ttvo (a) : (2.) If such inTestigation be made annually by any company, such company may prepare such statement at any time, so that it be made at least once in every three years. The expression " date " of each such investigation in this section shall mean the date to which the accounts of each company are made up for the purpose of each such investigation. (o) struck out by Statute Law Revision Act, 1883. 9. The Board of Trade, upon tlie applications of or with the Forms m;iy he consent of a company, may alter the forms contained in the ^ ^^'^ ' schedules of this Act, for the purpose of adapting them to the circumstances of such company, or of better carrying into eifect the objects of this Act. 10. Every statement or abstract hereinbefore required to be statements, made shall be signed by the chairman and two directors of the signed and company and by the principal officer managing the life assurance panted and business, and, if the company has a managing director, by such Board of Trade. managing director, and shall be printed ; and the original, so signed as aforesaid, together with three printed copies thereof, shall be deposited at the Board of Trade within nine months of the dates respectively hereinbefore prescribed as the dates at which the same are to be prepared. And every annual statement so deposited after the next investigation (a) shall be accompanied by a printed copy of the abstract required to be made by section seven. (a) i.e. the first after the passing of this Act; see Life Assurance Comp. Act, 1872, ». 3. infra, 11. A printed copy of the last deposited statement, abstract, or Copies of state- other document by this Act required to be printed shall be for- given to" share- warded by the company, by post or otherwise, on application, to holders, &c. every shareholder and policy-holder of the company. 12. Every company which is not registered under " The Com- List of share- panies Act, 1862," and which has not incorporated in its deed of ° ^'°' settlement section ten of " The Companies Clauses Consolidation Act, 1845," shall keep a "Shareholders' Address Book," in accordance with the provisions of that section, and shall furnish, 646 THE LIFE ASSURANCE COMPANIES ACT, 1870. Sect. 13. on application, to every shareholder and policy-holder of the company a copy of such book, on payment of a sum not exceeding sixpence for every hundred words required to be copied for such purpose. Deed of settle- 13. Every company which is not registered under "The Com- ™r1nted. panics Act, 1862," shall cause a sufficient number of copies of its deed of settlement to be printed, and shall furnish, on application, to every shareholder and policy-holder of the company a copy of such deed of settlement on payment of a sum not exceeding two shillings and sixpence. Amalgamation 14, Where it IS intended to amalgamate two or more com- panies, or to transfer the life assurance business of one company to another, the directors of any one or more of such companies may apply to the Court, by petition, to sanction the proposed arrangement, notice of such application being published in the Gazette, and the Court, after hearing the directors and other persons whom it considers entitled to be heard upon the petition, may confirm the same if it is satisfied that no sufficient objection to the arrangement has been established. Before any such application is made to the Court (a) a state- ment of the nature of the amalgamation or transfer, as the case may be, together with an abstract containing the material facts embodied in the agreement or deed under which such amalgama- tion or transfer is proposed to be effected, and copies of the actuarial or other reports upon which such agreement or deed is founded, shall be forwarded to each policy-holder of both com- panies in case of amalgamation, or to each policy-holder of the transferred company in case of transfer, by the same being trans- mitted in manner provided by section one hundred and thirty-six of the Companies Clauses Consolidation Act, 1845, for the transmission to shareholders of notices not requiring to be served personally ; and the agreement or deed under which such amal- gamation or transfer is efi'ected shall be open for the inspection of the policy-holders and shareholders at the office or offices of the company or companies for a period of fifteen days after the issuing of the abstract herein provided. The Court shall not sanction any amalgamation or transfer in any case in which it appears to the Court that policy-holders (j3) representing one-tenth or more of the total amount assured in any company which it is proposed to amalgamate or in any company the business of which it is proposed to transfer, dissent from such amalgamation or transfer. No company shall amalgamate with another, or transfer its THE LIFE ASSURANCE COMPANIES ACT, 1870. 647 business to anotlier, unless such amalgamation or transfer is con- Sect. 15. firmed by the Court in accordance with this section. Provided always that this section shall not apply in any case in which the business of any company which is sought to be amalgamated or transferred does not comprise the business of life assurance. (a) i.e. before the hearing (not the pre- sociation,^ . N. 1887, 122; 35 W. R. 803. sentation)L of the petition : Briton Life As- (/3) This includes an annuitant, t). s. 2. London and Southward Corporation {x) is a case of petition under this section, and the cases next mentioned are others. It will be noticed that this is not an enabling but a restrictive section. If a company has not by its constitution power to transfer its business, this Act does not give it power (y). But if, having under its constitution power to alter its regulations, it does alter them by taking power to transfer its business, then it has been held that a transfer will be intra vires (z). And assuming that the company has or acquires power, then the effect of the Act is to disable it from using the power except under the provisions of the Act. The transfer contemplated by the Act is a transfer of the whole of the assurance business as a going concern without any reduction in the policies or any fresh contracts with the policy-holders (y). 15. When an amalgamation takes place between any com- statements in T ji 1 • p • J J* 1 , case of amalga- panies, or when the business oi one company is transferred to mation or another company, the combined company or the purchasing transfer. company, as the case may be, shall, within ten days from the date of the completion of the amalgamation or transfer, deposit with the Board of Trade certified copies of statements of the assets and liabilities of the companies concerned in such amalga- mation or transfer, together with a statement of the nature and terms of the amalgamation or transfer, and a certified copy of the agreement or deed under which such amalgamation or transfer is effected, and certified copies of the actuarial or other reports upon which such agreement or deed is founded ; and the statement and agreement or deed of amalgamation or transfer shall be accompanied by a declaration under the hand of the chairman of each company and the principal managing officer of each company, that to the best of their belief every payment made or to be made to any person whatsoever on account of the said amalgamation or transfer is therein fully set forth, and that no other payments beyond those set forth have been made or are to be made either in money, policies, bonds, valuable securities, or other property by or with the knowledge of any parties to the said amalgamation or transfer. (x) W. N. 1880, 65; 28 W. E. 565; (y) Sovereign Co., i2 Ch. D. 5i0. 42 L. T. 247. (z) Argus Co., 39 Ch. D. 571. 648 THE LIFE ASSURANCE COMPANIES ACT, 1870. Sect. 16. 16. The Board of Trade may direct any printed or other docu- Documents ments required by this Act, or certified copies thereof, to be kept may be trans- fcy the Eegistrar of Joint Stock Companies, or other officer of Board of Trade the Board of Trade; and any person may, on payment of such to registry of fggg ^g ^]jq Board of Trade may direct, inspect the same at his Joint Stock _ j> Companies. office and procure copies thereof. Documents to 17, Evory statement, abstract, or other document deposited evidence. with the Board of Trade or with the Eegistrar of Joint Stock Companies under this Act shall be receivable in evidence ; and every document purporting to be certified by one of the secreta- ries or assistant secretaries of the Board of Trade, or by the said registrar, to be such deposited document, and every document purporting to be similarly certified to be a copy of such deposited document, shall, if produced out of the custody of the Board of Trade or of the said registrar, be deemed to be such deposited document as aforesaid, or a copy thereof, and shall be received in evidence as if it were the original document, unless some varia- tion between it and the original document shall be proved. Penalty for 18. Every company which makes default in complying with "ncrwith Act. *'^® requirements of this Act shall be liable to a penalty not ex- ceeding fifty pounds for every day during which the default con- tinues ; and if default continue for a period of three months after notice of default by the Board of Trade, which notice shall be published in one or more newspapers as the Board of Trade may direct, and after such publication the Court may order the wind- ing-up of the company in accordance with the Companies Act, 1862, upon the application of one or more policy-holders or share- holders. Penalty for 19. If any statement, abstract, or other document required by statements, &c. ^his Act is falsc in any particular to the knowledge of any person who signs the name, such person shall be liable, on conviction thereof on indictment, to fine and imprisonment, or on summary conviction thereof to a penalty not exceeding fifty pounds. Penalties how 20. Evcry penalty imposed by tliis Act shiill be recovered and and apniiecr'^ applied in the same manner ns penalties imposed by the Com- panies Act, 1862, are recoverable and applicable (a). (a) See Comp. Act, 1862, ss. 65, 6G. oDier circnm- 21. Thc Coiu't may order the winding-up of any company, in whidrcom-'' af-L^ordance with the Companies Act, 1862, on the application of pany may i,o QUO or niorc policv-holders (a) or shareholders, upon it being- wound np by t^ji-p. (.\ r^ t the Conrt of provecl to the satisiactiou oi the Court that the company is in- chanccry. solvcnt : and in detei raining whether or not the company is THE LIFE ASSURANCE COMPANIES ACT, 1870. 649 iasolvent the Court shall take into account its contingent or pro- Sect. 21. spective liability under policies and annuity and other existing contracts (j3) ; but the Court shall not give a hearing to the peti- tion until security for costs for such amount as the judge shall think' reasonable shall be given, and until a prima facie case shall also be established to the satisfaction of the judge ; and in the case of a proprietary company having an uncalled capital of an amount sufficient, with the future premiums receivable by the company, to make up the actual invested assets equal to the amount of the estimated liabilities, the Court shall suspend further proceedings on the petition for a reasonable time (in the discretion of the Court) to enable the uncalled capital, or a suffi- cient part thereof, to be called up ; and if at the end of the original or any extended time for which the proceedings shall have been suspended, such an amount shall not have been realized by means of calls as, with the already invested assets, to be equal to the liabilities, an order shall be made on the petition as if the com- pany had been proved insolvent. (a) Including the holder of a current Ass. Comp. Act, 1872, s. 4, infra. policy and an annuitant, v. s. 2. This is (/3) This is introduced in consequence of an extension of Comp. Act, 1862, s. 82, the decision in In re European Life Assur- which applies only to creditors and con- ance Society, 9 Eq. 122 ; and see supra, tributories. See further, as to the wind- pp. 218, 221. ing-up of amalgamated companies, Life Sect. 2 of this Act defines " company " in such way as to include some " Any com- companies which senible could not have been wound up under the Companies P^°y- ' Act, 1862. Thus a mutual insurance society in which there is no liability in any one to contribute to the payment of debts may be wound up under this Act (a). When a petition is presented under this section the practice is to mark Practice, the petition with a special fiat in the following form : — "The Court doth order that this petition be referred to the judge in chambers to enquire whether a, prima facie case within the meaning of s. 21 of the Life Assurance Companies Act, 1870, is established and to consider the security for costs to be given pursuant to the same section, and the result of such enquiry is to be certified to the Court." The matter then goes to chambers and is there heard ex parte. The reason why the company is not heard on the preliminary enquiry is con- ceived to be that the petitioner is only required to make out a prima facie case, and that if the company were heard, the result would in fact be that the real matter in issue on the petition would be fought out on the preliminary enquiry. Thus, either the solvency of the company would be tried in a private proceeding, or the company would lose the benefit of the privacy, which the Act desires to maintain until a, prima facie case is shewn. Upon the result of the proceedings in chambers, the petition will be answered for hearing in the usual way. It has been held that policy-holders who had deposited their policies with the company, and who under its rules were therefore entitled to the cash (a) Great Britain Mutual Society, 16 Ch. Div. 246. 650 THE LIFE ASSURANCE COMPANIES ACT, 1870. Sect. 22. Provisional liquidator. InsolTency. Power to Court to reduce contracts. Notices under this Act to policy-holders. value of their policies, were not entitled to petition as creditors, but only as ■ policy-holders. The petition having been answered for hearing in the usual way, the fiat was struck out, and a reference directed to chambers as in the special fiat above given (b). The petition must be entitled under this Act (c). The Court is not obliged to suspend proceedings on the petition simply because the uncalled capital is sufficient as in the section, mentioned, if it is satisfied that there is not capital realizable to a sufficient amount (d). If the company has passed resolutions for voluntary liquidation, semWe the Court need not require either a primd facie case to be shewn or security for costs to be given (e). The Court will not appoint a provisional liquidator ex parte, before the preliminary enquiry has been answered (/). In the case of a company with uncalled capital it is conceived that the test of insolvency is this. Estimate the present value of the future premiums without the loading : estimate the present value of the company's liabilities and contingent liabilities. If the assets plus the uncalled capital (or such amount of it as is shewn to be realizable (d) ) plus the present value of the premiums without the loading exceeds the present value of the Kabilities, the company is not insolvent within the meaning of this section. And qucere whether as in Be London and Manchester Association (/), the Court can decline to go into this. Of course if the company is unable to meet current demands, it is commercially insolvent and may be wound up apart from the special grounds of what may be called prospective insolvency, for which this section is intended to provide. 22. The Court, in the case of a company which has been proved to be insolvent, may, if it thinks fit, reduce the amount of the contracts of the company upon such terms and subject to such conditions as the Court thinks just, in place of making a winding-up order. As a general rule the date to be taken for ascertaining what contracts are to be reduced under the scheme is the date of the presentation of the peti- tion. The Court has a discretion imder this section, and might fix another date if there were special circumstances to take the case out of the general rule {g). Claims of policy-holders and annuitants which have matured before that date must be paid in full : all subsequent claims whether they have matured before the scheme is settled or not must be reduced {g). Holders of current policies, whether participating or non-participating, must be reduced pari passu (g). All payments in arrear in respect of premiums must be paid in full (g). 23. Any notice which is by this Act required to be sent to any policy-holder may be addressed and sent to the person to whom (h) British Imperial Assurance Co., W. N. 1875, 184. (o) British Alliance Corporation, W. N. 1877, 261. (d) National Funds Asstiranoe Co., W. N. 1876, 239. (e) British Alliance Corporation, 9 Ch. D. 635. (/) London and Manchester Association, 1 Ch. D. 466. ((/) Great Britain Mutual Society, 19 Ch. D. 39; 20 Ch. Div. 351. THE LIFE ASSURANCE COMPANIES ACT, 1870. 651 notices respecting sucli policy are usually sent, and any notice so Sect. 24. addressed and sent shall be deemed and taken to be notice to the holder of such policy. 24. The Board of Trade shall lay annually before Parliament statements, the statements and abstracts of reports deposited with them under before Pariia- this Act during the preceding year. "^°*- 25. This Act shall not affect the Commissioners for the Exceptions. Eeduction of the National Debt nor the Postmaster-General acting under the authorities vested in them respectiToly by the Acts tenth George the Fourth, chapter twenty-four (*) ; third *lAitered from and fourth William the Fourth, chapter fourteen ; sixteenth and smlt'tol'ifsb seventeenth Victoria, chapter forty-five ; and twenty-seventh and yiot. o. 58.] twenty-eighth Victoria, chapter forty-three. 652 THE LIFE ASSURANCE COMPANIES ACT, 1870. Sch. 1. so a lip w o H l-H s o -3 CO -S OS Id !3 i; o «[3 GO CO 3 A -a m 'S-S Tl — 5 " i 13 S o 1 i i ^ "S e4_, -S .2 § S 2 ^ g p 0) THE LIFE ASSURANCE COMPANIES ACT, 1870. 653 I I I I I I I la n3 o bD-p 1 n bo ■73 , 2 o I 9' I I I I I I I ■« E-- I I « &■ -^ i ° CO 1-3 fi W o EC n o u g-a a R. o 1 ^^ ^ I Pi o QJ tn CQ rt ® 3 g t> o m o O Ct>^ fH & i i ® M I e--a 1 1 d bp &0 o m a O 2 S o f-j S g fe -S d^ '^'-' dffli-HliiWRHOd-o . j^ Q .^j I— I o Md i-:i Q « ■« -^ ° a § |ia§ I'll o S S 53 Q> o 1 .3 o OS -S o S S I o gS'ggo. ^ mis 5»«3 ft ^ r=3 A a S)| ."tn '73 o'S H A faMM a (D -4-3 m g I- s.§B..a i 2 aJ5 g> ill" o M3 M ■a a .. aM -aO I ,' I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I I a i , ft ' a lla a I I I . m ' a a fT3 +^ 3 © rt ^ a . H S P-a ^3 * i;^ .ft, !l ^ a o o m O ".a '• s s « a Ota R Si-^ o to .a a ■ -s .2 o Sa A a -+J o O ^ QJ n CJ d H Tl Tl a 02 OJ A a-o t3 CI) ■n p> 5 a e. -*-> $. m a m CD rd oS m t/J ni crt 0) 0) ^ yj ^ ^ a c8 CD * Fn^ KJ rt 656 THE LIFE ASSURANCE COMPANIES ACT, 1870. Sch. 5. FIFTH SCHEDULE. (Sect. 7.) Statemekt respecting the Valuation of the Liabilities under Life Policies and Annuities of the , to be made by the Actuary. (The answers should be numbered to accord with the numbers of the corresponding questions.) 1 . The date up to which the valuation is made. 2. The principles upon which the valuation and distribution of profits among the policy-holders are made, and whether these principles were determined by the instrument constituting the company, or by its regulations or bye-laws, or otherwise. 3. The table or tables of mortality used in the valuation. 4. The rate or rates of i nterest assumed in the calculations. 5. The proportion of the annual premium income, if any, reserved as a -provision for future expenses and profits. (If none, state how this provision is made.) 6. The consolidated revenue account since the last valuation, or, in case of a company which has made no valuation, since the commencement of the busmess. (This return should be made in the form annexed.) 7. The liabilities of the company under life policies and annuities at the date of the valuation, shewing the number of policies, the amount assured, and the amount of premiums payable annually under each class of policies, both with and without participation in profits ; and also the net liabilities and assets of the company, with the amount of surplus or deficiency. (These returns should be made in the forms annexed.) 8. The time during which a policy must be in force in order to entitle it to share in the profits. 9. The results of the valuation, shewing — (1.) The total amount of profit made by the company. (2.) The amount of profit divided among the policy-holders, and the number and amount of the policies which participated. (3.) Specimens of bonuses allotted to policies for £100, effected at the respective ages of 20, 30, 40, and 50, and having been respectively in force for five years, ten years, and upwards, at intervals of five years respectively, together with the amounts apportioned under the various modes in which the bonus might be received. THE LIFE ASSURANCE COMPANIES ACT, 1870. 657 CD O s (D a 60 'X3 a iO a a a 2 3 y o <1 1=) fl Ph o O 13 «d <+l _ 1 o ^s 1 1 1 1 '7^ O r-i ? ti- m d 1 1 1 1 'Tj 1 2J CD a ^ 1 CD ^ 1 » 1 OQ ew /-> s, O "3 o 1 1 ^ 'o 00 rd 1 13 O O -3 (D I 1 ^ ,0. ^ ■a 3 'a iS -u o -2 "^ (d a d o F ^3- 1 2 d ^w- .s .2 'o 1 a a 1 -2 d o ^3 03 Pi -§ g §s. 1 2 M § =3 CO a ^ ^! 3 GO a 1 a a 1 a g S m a a 1 '? O (D a p. S < o H P o 1 d 1 1 1 ^ a CD CO .a •'-< X' 1 1 1 I CO 1 3 1 [ CO *-( 1 1 CO 2 ■3 g o s CD a 1 1 1 ■a o 1 § a a 1 > o s s-/ .2 ts .9* o QQ a 3" 03 i s ;3 3 ■a 1 y* 0) O Sch. 5. 2u 658 THE LIFE ASSURANCE COMPANIES ACT, 1870. Sch. 6. o o PI fe 8 t S s s a-g ]z; M o S|| B.S .i.e J I ! g :s s ■s ,© fl-^ «* £^ .a o» a.K ■s^ 3fl. »|.a |3 £ !=> g ^ a c S fl J3 > o o W tH OS 'C-S feel's OJ o sa §5 a" » a THE LIFE ASSURANCE COMPANIES ACT, 1870. 659 f3 Ph a o 02 m o M ■< Ui , 1 o c _« 'd ^ h IB P< 1 » 03 ^^ ID 1 13 a ^ ep; 1 >. 'B TtH a i^^ a o ta oq ■a o la "3 03 -73 >, '"' .s '^ t-. OQ t>> m m 1^ Q «+» 03 i a ^o *a /— \ 00 WJ V g "3 t3 £> o ■p 02 n _a o § S. 03 -4^ r-i § m > s 1 r ew 1 QD P4 1 ^ 3 o \-/ O H H ^H 1 ScL 5. 2 u 2 660 THE LIFE ASSURANCE COMPANIES ACT, 1870. Sch. 6. SIXTH SCHEDULE. (Sect. 8.) Statement of the Life AssnEANOE and Annditt Business op the on the 18 . (The answers should be numbered to accord witli the numbers of the corresponding questions. Statements of re-assurances corresponding to the statements in respect of assurances, under headings 2, 3, 4, 5, and 6, are to be given.) 1. The published table or tables of premiums for assurances for the whole term of life -which are in use at the date above mentioned. 2. The total amount assured on lives for the whole term of life, which are in existence at the date above mentioned, distinguishing the portions assured with and without profits, stating separately the total reversionary bonuses and specifying the sums assured for each year of life from the youngest to the oldest ages. 3. The amount of premiums receivable annually for each year of life, after deducting the abatements made by the application of bonuses, in respect of the respective assurances mentioned under heading No. 2, distinguishing ordinary from extra premiums. 4. The total amount assured under classes of assurance business other than for the whole term of life, distinguishing the sums assured under each class, and stating separately the amount assured with and without profits, and the total amount of reversionary bonuses. 5. The amount of premiums receivable annually in respect of each such special class of assurances mentioned under heading No. 4, distinguishing ordinary from extra premiums. 6. Tlie total amount of premiums which has been received from the commence- ment upon all policies under each special class mentioned under heading 4, which are in force at the date above mentioned. 7. The total amount of immediate annuities on lives, distinguishing the amounts for each year of life. 8. The amount of all annuities other than those specified under heading No. 7, distinguishing the amount of annuities payable under each class, the amount of premiums annually receivable, and the amount of consideration money received in respect of each such class, and the total amount of premiums received from the commencement upon all deferred annuities. 9. The average rate of interest at which the life assurance fund of the company was invested at the close of each year during the period since the last investigation. 10. A table of minimum values, if any, allowed for the surrender of policies for the whole term of life and for endowments and endowment assurances, or a state- ment of the method pursued in calculating such surrender values, with instances of its application to policies of different standing and taken out at various interval ages from the youngest to the oldest. Separate statements to be furnished for business at other than European rates, together with a statement of the manner in which policies on unhealthy lives are dealt with. ( G61 ) THE LIFE ASSURANCE COMPANIES ACT, 1871. 34 & 35 Vict. c. 58. An Act to amend the Life Assurance Companies Act, 1870. [24th July, 1871.J Whereas by section three of the Life Assurance Companies Act, 33 & 34 Vict. 1870, a sum of money is required in certain cases to be deposited "' with the Accountant-General of the Court of Chancery, to be invested and returned by him in manner therein directed, and it is expedient to make further provision in respect of the deposit, investment, and return of such sum : 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 : — 1. Every sum required hij the Life Assurance Companies Act, payment into 1870, to he deposited with the Accountant-General of the Court oi^^^rs as1;o of Chancery (a), shall he paid into the Court of Chancery, and sums deposited orders with respect to the payment of such money into and out o/vict. c. ei, s.s. Court, and the investment and return thereof, and the payment of the dividends and interest thereof, may he from time to time made, altered, and revoked hy the^ like authority (j3) and in the like manner as orders with respect to the payment into and out of Court, and the investment of other money, and the application of the dividends and interest thereof. (a) 33 & 34 Vict. c. 61, s. 3, supra. (3) The Life Ass. Comp. Act, 1872, s. 1, infra, seems to clash with this. This section is repealed by Statute Law Revision Act, 1883. 2. Section twenty-five of the Life Assurance Companies Act, Amendment of 1870, shall be construed as if the words "chapter twenty-four " 'g^^^.^J ^^^ ^^ were and had at and from the date of the passing of such last- mentioned Act been inserted therein in place of " chapter forty- one ; " and her Majesty's Printers shall in all copies of the Life Assurance Companies Act, 1870, which may be printed after the passing of this Act, insert the words " chapter twenty-four " in the place of the words " chapter forty-one " in section twenty-five of the said Life Assurance Companies Act, 1870. 3. This Act shall be construed as one with the Life Assurance Construction Companies Act, 1870, and that Act and this Act maybe cited ^'"' ''""■"'*'<^- together as the Life Assurance Companies Acts, 1870 and 1871, and this Act may be cited as the Life Assurance Companies Act, 1871. ( 662 ) THE LIFE ASSUEANCE COMPANIES ACT, 1872. 35 & 36 YiCT. c. 41. An Act to amend the Life Assurance Companies Act, 1870 and 1871. [6th August, 1872.] 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 assembled, and by the authority of the same, as follows : — - Deposit by 1. Whereas by the provisions of " The Life Assurance Com- Court'of '" panics Acts, 1870 and 1871," a life assurance company is required Chancery. to pay a sum of money into the Court of Chancery by way of deposit, and the certificate of incorporation of such company is not to be issued unless such deposit has been made, and such deposit is to be returned to the company as soon as its life assurance fund amounts to the sum therein mentioned; and doubts have arisen as to the construction of the said provisions, and it is expedient to remove such doubts ; be it therefore enacted as follows : — The said deposit may be made by the subscribers of the memo- randum of association of the company, or any of them, in the name of the proposed company, and such deposit upon the incor- poration of the company shall be deemed to have been made by and to be part of the assets of the company. The said deposit shall, until returned to the company, be deemed to form part of the life assurance fund of the company, and shall be subject to the provisions of section four of the_Life Assurance Companies Act, 1870, accordingly. The Board of Trade (a) may from time to time make, and when made revoke, alter, or add to, rules with respect to the payment and repayment of the said deposit, the investment of or dealing with the same, the deposit of stocks or securities in lieu of money, and the payment of the interest or dividends from time to time accruing due on any such investment, stocks, or securities in respect of such deposit. Any rules made in pursuance of this section shall have effect as if they were enacted in this Act, and shall be laid before Parliament within three weeks after they are made, if Parliament be then sitting, or if not, within three weeks after the beginning of the then next session of Parliament. (a) The Life Ass. Comp, Act, 1871, s. 1, supra, seems to clash -with this. THE LIFE ASSURANCE COMPANIES ACT, 1872. 663 The Board of Trade, in pursuance of the powers conferred upon them by Sect. 2. this section, made Rules dated the 28th of August, 1872, which will be found " printed immediately after this Act. 2. "Whereas, by section four of tlie Life Assurance Companies Separation of Act, 1870, it is enacted that, " In the case of a company established after the passing of this Act transacting other business besides that of life assurance, a separate account shall be kept of all receipts in respect of the life assurance and annuity contracts of the company, and the said receipts shall be carried to and form a separate fund, to be called the life assurance fund of the company, and sach fund shall be as absolutely the security of the life policy and annuity holders as though it belonged to a company carrying on no other business than that of life assur- ance, and shall not be liable for any contracts of the company for which it would not have been liable had the business of the company been only that of life assurance : " and further pro- visions were made by the same section, with respect to the application of the above-recited part of the said section to existing companies, and doubts have arisen with respect to the construction of the said provisions, and it is expedient to remove such doubts ; be it therefore enacted, That the portion of section four of the Life Assurance Com- panies Act, 1870, above recited, shall apply to every company established before the passing of that Act, provided that the Life Assurance Companies Act, 1870, and this Act shall not diminish the liability of the life assurance fund for any contracts of the company entered into before the passing of the Life Assurance Companies Act, 1870. 3. Whereas by section ten of the Life Assurance Companies Deposit of Act, 1870, it is provided that, " Every annual statement so de- f^^^^^^ '""^ posited after the next investigation shall be accompanied by required by 33 a printed copy of the abstract required to be made by section gi s. lo. ' ■ seven," be it therefore enacted that the words " next investiga- tion " shall be construed to mean the first investigation after the passing of the said Act. The Board of Trade shall lay before Parliament any statement or abstract of report which is deposited with them by any company, and purports to be in pursuance of Life Assurance Companies Act, 1870, although the Board are of opinion that it is not such a statement or abstract as is required to be prepared by that Act, 4. Where the business or any part of the business of a life Winding-up . J. 1 . of subsidiary- assurance company has, either before or after the passing of this company to be 664 THE LIFE ASSURANCE COMPANIES ACT, 1872. Sect. 4. Act, been transferred to another company under an arrangement ai^kiyT^ in pursuance of which such first-mentioned company (in this Act winding-up of called the subsidiary company) or the creditors thereof has or pany.' have claims against the company to which such transfer was ma.de (in this Act called the principal company), then, if such principal company is being wound up by or under the supervision of the Court, either at or after the passing of this Act, the Court shall (subject as hereinafter mentioned) order the subsidiary company to be wound up in conjunction with the principal com- pany, and may by the same or any subsequent order appoint the same person to be liquidator for the two companies, and make provision for such other matters as may seem to the Court neces- sary, with a view to such companies being wound up as if they were one company ; and the commencement of the winding-up of the principal company shall, save as otherwise ordered by the Court, be the commencement of the winding-up of the subsidiary company (a) ; the Court nevertheless shall have regard, in ad- justing the rights and liabilities of the members of the several companies between themselves, to the constitution of such com- panies, and to the arrangements entered into between the said companies, in the same manner as the Court has regard to the rights and liabilities of different classes of contributories in the case of the winding-up of a single company, or as near thereto as circumstances admit. Where any subsidiary company, or company alleged to be sub- sidiary, is not in process of being wound up at the same time as the principal company to which it is subsidiary, the Court shall not direct such subsidiary company to be wound up, unless, after hearing all objections (if any) that may be urged by or on behalf of such company against its being wound up, the Court is of opinion that such company is subsidiary to the principal com- pany, and that the winding-up of such company in conjunction with the principal company is just and equitable (j3). Where any subsidiary company and principal company are being wound up by different branches of the Court, the Court to which appeals from such branches lie shall make an order directing in which branch the winding-up of such companies is to be carried on, and the necessary proceedings shall be taken for carrying such order into effect. An application may be made in relation to the winding-up of any subsidiury company in conjunction with a principal company by any creditor of, or person interested in, such principal or subsidiary company (y). THE LIFE ASSURANCE COMPANIES ACT, 18 Y 2. 665 Where a company stands in the relation of a principal company Sect. 4. to one company, and in the relation of a subsidiary company to some other company, or where there are several companies stand- ing in the relation of subsidiary companies to one principal company, the Court may deal with any number of such compa- nies together or in separate groups, as it thinks most expedient, upon the principles laid down in this section. (a) Comp. Act, 1862, s. 84. (/3) Comp. Act, 1862, s. 79 (5). (7) Comp. Act, 1862, s. 82. It is not easy to foresee the effect of the enactments contained in the Sub-sects. 1, : first two paragraphs of this section. It may be prefaced that the section is so worded as, in all the usual forms of amalgamation in which a transfer of business and assets is effected by the one company, and a guarantee of indemnity against liabilities given by the other company, to render unnecessary, for the purpose of making the order, the determination of any questions of novation. The section is applicable where the subsidiary company or the creditors thereof has or have claims against the principal company. If novation has been effected by the creditors of the subsidiary company, they have claims against the principal company ; if no novation has been effected, the subsidiary company has, under the guarantee of indemnity, claims against the principal company. In either case, so long as any claims of creditors of the subsidiary company are in existence, the section will apply. This being premised, it will be observed that the first paragraph is man- datory except as controlled by the second paragraph. In the case, therefore, of a subsidiary company which is in process of being wound np at the same time as the principal company — i.e., which is in liquidation at the time that the application is made under this section — the section is absolutely manda- tory; but in the case of a subsidiary company not so in process of being wound up, the Court is not to make a winding-up order unless it is of opinion that the company is subsidiary, and that its winding-up in conjunc- tion with the principal company is just and equitable. In this latter case the matter appears to stand in much the same position as under the Com- panies Act, 1862, s. 79 (5), with this exception, that while the 79th section enacts only that the company may be wound up under the circumstances there specified, under this section the mandatory enactment of the first paragraph must have effect if the conditions specified in the second para- graph are satisfied. It may be observed further that the second paragraph appears to leave the Court no discretion to order the company to be wound up independently if it is of opinion that such a winding-up will be preferable ; for, assuming the company to be a subsidiary company, " the Court shall not direct such sub- sidiary company to be wound up " {i.e., no winding-up order whatever shall be made) unless the Court is of opinion that the winding-up in conjunction ivith the principal company is just and equitable. As to the commencement of the winding-up, Lord Westbury in the Commeuce- European Arbitration followed the ordinary course, and would not allow n>™t of the winding-up of a subsidiary company to date from that of the principal w'n Comp. Act, 1862, s. 39. (j8) See Form 1, in Sch. The seven days may be counted in the vacation (s). Advertisement on a Seven clear Friday for hearing on the following Friday is not sufficient ; but the Court ^^7^- may, under special circumstances, waive the irregularity under Rule 52 (f). It does not invalidate the petition that the advertisements have appeared Advertisement on the morning of the day on which the petition is presented, and have thus before presen- actually preceded by a few hours the presentation of the petition («). tation. Where the petition had been advertised in only one London newspaper Advertisement beside the London Gazette, the Court refused to dispense (under Rule 53, irregular. infra) with advertisement in a second newspaper, and directed that the petition should be duly advertised, and the order drawn up seven days after the advertisement (x). The Court has a discretion, however, by virtue of Eule 53, infra, and where the advertisement in the London Gazette had not been inserted seven clear days before the day for which the petition was answered, the Court oven'uled the objection (y). So where that in the London Gazette was in time, but those in the other newspapers were not (z). (r) Marezzo Marble Co., 29' L. T. 720 ; L. T. 750; W. N. 1866, 279. W. N. 1874, 9; 22 W. E. 248 ; 43 L. J. (») London India RiMer Co., 14 L. T. (Ch.) 544. 316 ; 14 W. R. 527, 594. (s) London India Bvbber Co., 14 W. R. (»/)■ Land and Sea Telegraph. Co., 18 S94 ; 14 L. T. 316. W. R. 1150. (*) City and County Bank, 10 Ch. 470. {z) MacLean # Co., W. N. 1881, 8. («) Cork and Yowghal Railway Co., 14 2x 674 GENERAL ORDER, NOVEMBER 3 862. Rule 2. Re-heai*ing without fresh advertisementi Slip. Death of petitioner. Priority by- date of adver- tisement. Where the advertisements had been duly published in the London Gazette, but, owing to the mode in which the local newspapers appeared in print, the advertisements inserted in them had not been published in accordance with the requirements of the Order, the advertisements were held sufficient (a). If the petition cannot be heard on the day appointed by advertisement, by reason of the advertisement not having been properly inserted, the practice is to let the petition stand over for a fortnight, with liberty to insert fresh advertisements (J). Where the petition had been advertised as to be heard on " Saturday, the 20th of December," the 20th being a Thursday, the Court refused, even by consent, to waive the irregularity, and directed fresh advertisements to be given (c). An error in the name of the company in the advertisement renders the advertisement a,bsolutely void, e.g., where City and Coimty Banking Co. was substituted for Glty and County Bank (i). On motion to discharge a supervision order (on the ground of irregularity in the passing of the resolution for voluntary winding-up) the order was dis- charged and the petition re-heard without fresh advertisement, on service and consent of all parties entitled to be served (e). An application to rectify a slip in former proceedings, as to substitute a valid for an invalid order to wind up, being properly an ex parte matter, does not require advertisement (/). In Army and Navy Hotel, Limited (g), the petition had been presented, advertised, and heard and an order made under the name Army and Navy Motel Company, Limited. On an ex parte application of the petitioners the Court gave leave to amend and re-advertise the petition and to draw up the order seven days after the advertisement. The company's motion to dis- charge the ex parte order was dismissed. So where in the name of the Newcastle-upon-Tyne Machinists Co. the words "upon Tyne" had been omitted, leave was given upon application made after winding-up order to amend the petition and order, but the winding-up order as amended was directed to be advertised (/;). If the petitioner dies before the hearing of the petition, his legal personal representative may obtain an order to carry it on (0- Where after winding- up order made, passed, and entered, it appeared that the petitioner had died the day before the order was pronounced, an order of revivor was made, which went on to discharge the winding-up order, and to make a fresh winding-up order at the instance of the legal personal representative {k). Until recently the advertisement, not the presentation of the petition, was taken to be the test of the priority of the proceedings, so that where two or more petitions were presented they took priority according to their dates of advertisement, not of presentation (?)• But Chitty, J. (m), holds this not to be the true rule, although he adds that possibly if he had two petitions before him each properly presented he might give the carriage of the order to that which was advertised first. (a) Worthing Royal Sea House Hotel Co., W. N. 1872, 74. (6) London and Westminster Wine Co., 1 H. & M. 561 ; 12 W. R. 44. (c) He Joint Stooi Co.'s Winding-up Act, 13 Beav. 434. (d) City and County Bank, 10 Ch. 470, SeoUs Consolidated Mineral Co. (V.-C. H.) W. N. 1876, 234. And see Army and Navy Hotel, Limited, 31 Ch. D. 644. («) Patent Floor Cloth Co., 8 Eq. 664. {/) Shields Marine Insurance Co., W. N. 1867, 296 ; see supra, p. 252. (g) 31 Ch. D. 644. (h) W.N. 1888, 246; 1889, 1. («') Dynevor Collieries Co.,W. N. 1878, 199. (k) Commercial Sank of London, W. N. 1888, 214, 234. (J) United Ports and General Insurance Co., 39 L. J. (Ch.) 146. (m) Building Societies Trust, 44 Ch. Div. 140. GENERAL OEDEE, NOVEMBEE 1862. 675 ■Where three petitions were presented and one order made on them allj Rule 2. JesSel, M.E., gave the carriage of the order to a petitioner whose petition had been presented before, but advertised after, one of the other two («.); Ahd Ee Trades Sank Co. (o), it appears (p)) was not an adoption by his Lordship of treating advertisement, not presentation, as the test of priority. Where, however; two petitions were advertised in the same Gazette, his Lordship gave the carriage of the order to the petitioner whose advertise- ment stood first on the page (q), and where of the two petitions advertised in the same Gazette one was presented two days before the other, the carriage was given to that first presented (r). The advertisement of the petition is notice to all the world of its presenta- Adtettisefflent tion (s), that is to say, semble, if the parties have had such a reasonable time '^ J!"*"^* as that knowledge of the advertisement may be imputed to them (t) — and is ''^ notice to parties interested, if not properly represented, to appear («). If a petition which has been presented and advertised is subsequently withdrawn (a;), the withdrawal should therefore also be advertised («/). A petitioner who presents a petition after another petition for the same purpose has been advertised, must, unless he can shew good grounds for the presentation of a second petition (y), pay the costs (a). Where the first petition had been ordered to stand over sine die, a creditor who six months afterwards, in ignorance of its existence, presented another petition, was allowed his costs (a). The publication in extenso in a newspaper, before the hearing, of a winding- Ptiblicition of up petition, containing charges of fraud against the directors, is a contempt P«t'*'™ ™ '^^- of Court (V). And of course an argumentative comment upon the case while paper- pending is a contempt (c). Contempt, But where, pending a shareholders* petition, a committee of shareholders issued to their brother shareholders, for the purpose of bringing to their attention the facts on which they relied, a printed letter, containing their accusations against the directors, and some extracts from the evidence, this did not amount to contempt (a). Where, pending a creditors' petition, an advertisement, signed by the chair- man on behalf of the directors, was inserted in the newspapers, reflecting upon the motives of the petitioners, and stating that they had no legal claim against the company, and that they knew it, the chairman was put upon an undertaking not to continue or repeat the advertisement, and the costs of the motion to commit were reserved imtil the petition was heard (e). (n) London and Australian Agency, 29 (oo) See sUpra, p. 226( as to fight ttf L. T. 417 ; 22 W. R. 45. . withdraw petition. (o) W. N. 1877, 268. (i/) Humber Ironworks Co., 2 Eq. 15; (p) See Building Societies Trust, 44 United Service Co., 7 Eq. 76. Ch. D. 140, 145, 146. {z') Accidental and Marine Insurance Co.) (}) Merrybent and Darlington Bailway E. p. Rasch, 36 L. J. (Ch.) 75 ; 15 L. T. Co., about June, 1878. 173 ; Joint Stock Coal Co., 8 Eq. 146 ; and (r) Storforth Lane Co., 10 Cii. D. 487. see mpra, p. 228. (s) Emmerson's Case, 2 Eq. 231. (a) Marron Bank Co., 38 L. T. 140 ; (i) Oriental Bank, E. p. Guillemin, 28 W. N. 1878, 12. Ch. D. 684, 640 ; National Bank's Case (b) Cheltenham aiid Swansea Bailway (Eur. Arb.), L. T. 92 ; Empire Assurance Carriage Co., 8 Eq. 580. Corporation, 16 L. T. 341 ; Owen's Patent (c) Crown Bank, Se O'Malley, 44 Ch. Di 'Wheel Co., 2,2 W. E.~151; 29 L. T. 672; 649. W. N. 1873, 226 ; see st^ro, p. 844 ; and (cC) London Flour Co., 17 L. T. 636 ; 16 see United Service Co., 7 Eq. 76. W. E. 474. Contrast Bowden v. Russell, («) Marlborough Club Co., 1 Eq. 216; 36 L. T. 177; 46 L. J. (Ch.) 414; Sir New Gas Co., 5 Ch. Div. 703 ; and see John Moore Co., 37 L. T. 242. supra, p. 249, as to the costs of parties (e) General Exchange Bank, 14 L. T. appearing. 582 ; 12 Jur. (N.S.) 466 ; 14 W. R. 826. 2x2 676 GENERAL OBDER, NOVEMBER 1862. Eule 3. Injunction. Libel. Service of petition. Kule is direc- tory. Service on liquidator. The Court has jurisdiction to restrain a person by injunction from com- - mitting acts which if permitted would be contempt of Court (/). In Quartz Hill Go. v. Beall (g) an application to restrain, on the ground of a libel, the further publication or issue of a circular which had been circu- lated by the solicitor of one shareholder among the other shareholders, was refused on motion. In Hill v. Hart Davies (A), upon a similar application, an injunction was granted. In Liverpool Stores v. Smith (i) an injunction against a newspaper was refused, and a doubt was expressed whether under any circumstances an injunction ought to be granted to restrain the publication of future articles reflecting unfavourably on a company on the ground^of the difficulty of grant- ing an injunction which would not include matters which might turn out not to be libellous. A very useful statement of the law shewing that the repeated'publication, on an occasion not privileged, of matter defamatory though true may be libellous, will be found in Salmon v. Isaac (k). 3. Every such petition shall, unless presented by the company, be served at the registered office (a), if any, of the company, and if no registered office, then at the principal, or last known prin- cipal place of business, of the company, if any such can be found, upon any member, officer, or servant of the company there, or in case no such member, officer, or servant can be found there, then by being left at such registered oflSce or principal place of , business, or by being served on such member or members of the company as the Court may direct; and every petition for the winding-up of a company subject to the supervision of the Court (/3), shall also be served upon the liquidator (if any) appointed for the purpose of winding up the affairs of the company. (a) Comp. Act, 1862, s. 39. (jS) Comp. Act, 1862, s. 148. This rule is directory, not imperative. Where service of the petition had been accepted on behalf of the company by a solicitor duly appointed for that purpose, service at the registered office was held not to be necessary (I). The order, probably by an oversight, fails to provide for the service of a petition for a compulsory order on the liquidator acting in a voluntary winding-up, or in a winding-up under supervision. Such service, no doubt, ought to be made. In the case for which the rule does provide the service must be, not on the liquidator only, but on the company also (m). But if the registered office is abandoned, service on the liquidator only may be sufficient (ra). If the liquidator is appointed before the petition is presented, only one set of costs will be allowed (o). (/) Kittcatv. Sharp, 31 W. R. 227 ; 52 L. J. (Cli.) 134; 48L. T. 64. (g) 20 Ch. Div. 501 ; Han-ison v. Marquis of Abergavenny, W. N. 1887, 21. (A) 21 Ch. D.'798. (0 37 Cli. Div. 170. (k) 20 L. T. 885. (l) Regent United Service Store!, 3 Ch. Div. 75. (m) Inventors' Association, 13 W. R. 1015; 12 L. T. 840; 6 N. R. 349; Petro- leum Co., 15 L. T. 169 ; 15 W. R. 29. (n) Stewart § Brother, W. N. 1880, 15. (o) Hall * Ob., W. N. 1885, 190 ; 53 L. T. 633 ; 34 W. R. 56. GENBEAL ORDER, NOVEMBER 1862. 677 If the liquidator joins in the petition, the company must he served (p). Rule 3. The registered ofBce of a company had heen demolished in the course of • alterations, and the business was being carried on at an unregistered ofBoe. ^f^^"^'**" Service on the secretary and two of the directors at the unregistered oflce was held sufficient (j). Where the company was in course of winding-up, service of a petition was directed to be made upon the late secretary, as well as upon the liquidator (f). The registered ofSce of a company was closed, and the company had never Office closed, commenced business. The Court, on an ex parte application, directed service to be made on the chairman and general manager (s). The office of a company, not registered under the Act, was closed, and a notice posted on the door that the business had been transferred to another company. The Court directed service on any five of the directors (f). In another case, service was directed upon the solicitor and any one of the directors of the company (u). Under the Act of 1848 service on the solicitor of the company alone was held insufficient (a). Again, where a company had long since become amalgamated with another company, leave was given to serve persons who, upon the affidavit of the solicitor, were members of the company at the time of the amalga- mation (y). Where an unregistered company had ceased to carry on business, service office demol- at the office which had been, but was no longer, the office of the company ished or in was held sufficient (z). other^°artie3°^ A company having transferred its business and been dissolved eight years jf,, office, before, service on a workman employed on the site where the office, now pulled down, had formerly stood, was held insufficient, although two of the directors appeared (a). Office pulled down, and notice that company had removed to No. 13 in the same street. On calling at No. 13 the solicitor found that the company's name was not written up, and was informed that the secretary attended at the office of the company's solicitors at that address. Jessel, M.E., directed service on the secretary at that address, and on one of the &cm of the company's solicitors (i). Where the company had no office, the Court directed service on the nine No office, surviving subscribers to the memorandum of association, and on three or four of the principal shareholders (c). In another case service was directed to be made upon the seven subscribers to the memorandum of association who appeared to be the only persons connected with the company (d). (p) Panonia Leather Cloth Co., 13 W. R. Dale, 3 De G. & Sm. 11. .1015. (2/) Coghlan's Case (Eur. Arb.), L. T. 31, (c[) FortuTie Copper Mining Co., 10 Eq. 37. 330; and see supra, p. 158. («) City of London and Colonial Financial (r) Petroleum Co., 15 W. R. 29 ; 15 Association, 36 L. J. (Ch.) 832; 15 W. K. L. T. 169. 1095. (s) National Credit and Exchange Co., (a) Manchester and London, ^c, Asso- 11 W. R. 161 ; 7 L. T. 817. ciatim, 9 Eq. 643. (i) Unity General Assurance Association, (6) Vron Slate Co., W. N. 1878, 70. 11 W. R. 355 ; 8 L. T. 160. (o) Inventors' Association, 13 W. E. (u) London and Westminster Wine Co., 1015 ; 6 N. E. 349 ; 12 L. T. 840. 12 W. R. 6; 3 N. R. 26; 9 Jur. (N.S.) (i) Great Cvmisymlog Silver Lead Mining 1102 ; South Essex Estuary Co., 18 L. T. Co., 16 W. R. 270 ; 17 L. T. 463 ; Velletri 178. and Terracino Co., IS L. T:. 360. (^x) Trent Valley Sailway Co., E. p. 678 GENERAL OBDEE, NOVBMBBB 1862. Rnle 4, Unregistered company. Foreign com- pany. No service made. Affidavit verir fying petition. Affidavit irrer gulai'ly sworn allowed to be rersworn. Enlargement of time to file. In the case of a mutual company which had no place of business and no - directors, service was directed to be made on the secretary and agents of the company, the latter refusing to say who were the members of the company (e). A company not registered under the Companies Act, 1862, can be served under the provisions of the Act and this Order, and a winding-up order made without serving the individual shareholders of the company (/ ). Having regard to Newhy v. Van Oppen (g), and Eaggin v. Comptoir d'Escompte (Ji), it is conceived that a foreign company capable of being wound up under the Act (i) may be served with the petition at their principal place of business in this country under this rule. Where an order had been obtained without any service having been made, and the registrar therefore refused to draw up the order, the Court directed that, upon production to the registrar of a consent brief for the persons who ought to have been served, the order should be passed (k). In the case of a company under the Companies Clauses Act which had no ofBce, judgment signed against the company in default of appearance upon a writ which had been served only on a director was set aside (I). 4, Every petition for the winding-up of any company by the Court, or subject to the supervision of the Court, shall be verified by an affidavit referring thereto, in the form or to the effect set forth in form 2 in the third schedule hereto ; such affidavit shall be made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by the company, by some director, secretary, or other principal officer thereof; and shall be sworn after and filed within four days after the petition is presented, and such affidavit shall be sufficient prima, facie evidence of the statements in the petition. This rule has been acted upon too long for the contention that it is ultra vires to succeed. The statutory afQdavit, as it is generally called, is by the rule prima fade evidence, and may be read, although as to nine-tenths of the matter sworn to, it is generally not evidence at all (m). In general the petitioner ought not to file any evidence beyond the statutory af&davit unless evidence is filed in opposition. Where the affidavit was inadvertently sworn and filed he/ore the petition was presented, the Court allowed it to be re-sworn and again filed, and the order which had been made on the petition to be dated subsequently (ti). Under Rule 73 the time for filing the affidavit may, in a proper case, be enlarged. In the following cases the time has been enlarged and a winding-up order made, notwithstanding that the affidavit was out of time : — (e) Thames Mutual Club Insurance Co., 15 L. T. 263. (/) '^''.V "/ London and Colonial Financial Association, 15 W. R. 1095; 36 L. J. (Ch.) 832 ; and see other cases of unregistered companies just cited. (g) h. R. 7 Q. B. 293; and see Mac- kircth V. Glasgow and South Western RaU- way Co., L. R. 8 Ex. U9. '(Ji) 23 Q. B. Div. 519. ()) See supra, p. 217. Ik) Panonia Leather Cloth Co., 18 W. H. 1015. (I) Lawrenson v. Dublin Railway Co., 37 L. T. 32. (m) New Callao (App. Ct."), W. N. 1882, 60 ; 30 W. R. 647 ; Gold Sill Mines, 23 Ch. Div. 210. (n) Western Benefit Building Society, 33 Beav. 368 ; 33 L. J. (Ch.) 179. GENEEAL OEDEB, NOVEMBEE 1862. 679 Affidavit sworn within the four days, and sent to be filed on the fourth ^ule S. day. The messenger on arriving at the ofBce at two o'clock found it had been- closed at one o'clock, it being the Easter vacation (o), AfSdavit not filed until nine days after petition presented (p), Afadavit not filed until the fifth day (g). The petition was presented on the 5th of January ; the petitioner being absent in the country, the affidavit was not sworn until the 10th of January. On the 12th of January, on application for leave to file, notwithstanding time expired, leave was given, a copy of the affidavit to be sent forthwith to the respondents (r). Where the petitioner was resident in Dantzig, the Court extended the Petitioner resi- time to ten days (s). "J^"* »''™'"1- The petition was presented under a power of attorney executed by peti- tioners resident in Australia to a solicitor in this country. It being there- fore impossible for the affidavit to be made by a petitioner according to this order, the Court made a winding-up order on verification of the petition by an affidavit of the solicitor, deposing of his own knowledge to the facts stated in the petition (t). The rule does not provide for the case of a corporation, other than the Corporation liquidating company, being a petitioner. In such case an affidavit of the petitioner, secretary of the petitioning company will be accepted (u), although it is conceived that an order ought properly to be obtained allowing the affidavit to be made by some officer of the petitioning company, for otherwise the affidavit is not within the rule (oc). In bankruptcy the point was provided for under the Act of 1869 (y), and does not arise under Act 1883, ss. 7 (1) and 148, and Er. 130, 131. Semhle, the meaning of the order is that an affidavit as in the order Affidavit not mentioned is always necessary, but not that it is in all cases necessarily necessarily „ . , , , sufficient, sufficient (z). In bankruptcy the allegations in the petition must be supported by further evidence than the common affidavit (a). 5. Every contributory or creditor of the company shall be Copies of peti- entitled to be furnished, by the solicitor to the petitioner, with a supplied.* copy of the petition, withia twenty-four hours after requiring the same, on paying at the rate of fourpence per folio of seventy-two words for such copy. It is not the duty of the solicitor to furnish copies to all persons, whether strangers to the company or not, who choose to apply and pay the fee ; on the contrary, it is his duty to ascertain that the applicants are either creditors or contributories (5). (o) East Cambrian Gold Mining Co., 12 (u) Birmingham Concert Sails, W. N. L. T. 587. ■ 1890, 91. (p) Kentish Eoyal Hotel Co., 13 W, R, (») See Bank of Montreal t. Cameron, 448 ; 5 N. R. 423. W. N. 1877, 85 ; Cahemore Causeway Co., (?) London and Westminster Co-opera- W. N. 1880, 15; 28 W. R. 299. tive Store Co., 17 L. T. 559. (y) Bankruptcy Rules, 1870, r. 15. (r) Patent Screwed Boot and Shoe Co,, (z) St. David's Gold Mining Co., 14 32 Bear. 142. W. R. 755 ; 14 L. T. 539. (s) Anglo-Danish Steam Navigation Co., (a) E. p. Lindsay, 19 Eq. 52. 15 L. T. 407 ; 15 W, R. 105. (6) Cheltenham and Swansea liailway (i) Fortune Copper Mining Co., 10 Eq, Carriage Co., 8 Eq. 580, 583, 390, 680 GENBEAL OEDEE, NOVBMBEE 1862. Rule 6. OEDEK TO WIND UP COMPANY. Advertisement 6. Every Order for the winding-up of a company by the Ordel*"'°* "^ Court (a), or Subject to its supervision (/3), shall, within twelve days after the date thereof, be advertised (y) by the petitioner once in the London Gazette, and shall be served upon such per- sons (if any) and in such manner as the Court may direct. (o) Comp. Act, 1862, ss. 82, 86. (fi) Comp. Act, 1862, s. 147. (7) Form 5 in Sch. AdTertisement Where the order was made on the 23rd of February, but not obtained too late. until the 5th of March, and the advertisement was consequently out of time, the Court gave leave to post-date the order as of the 5th of March (c). Re East Cambrian Oold Mining Co. {d) was a similar case. The application will only be entertained in the presence of all parties (e). Advertisement The advertisement of the winding-up order is notice to all the world, and IS notice of operates as a notice of discharge to the servants of the company (/). servants. 7_ ^ copy of every order for winding-up a company, certified to Order. be a true copy thereof as passed and entered, shall be left by the petitioner at the chambers of the judge, within ten days after the same shall have been passed and entered, and in default thereof any other person interested in the winding-up may leave the same, and the judge may, if he thinks fit, give the carriage and prose- cution of the order to such person. Upon such copy being left a summons shall be taken out to proceed with the winding-up of the company, and be served upon all parties who may have appeared upon the hearing of the petition. Upon the return of such summons, a time shall, if the judge think fit, be fixed for the appointment of an official liquidator (a), and for the proof of debts (j3), and for the list of contributories to be brought in (7), and directions may be given as to the advertisements 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 continued by adjournment, and, when necessary, by further summons, and any such direction as afore- said may be given, added to, or varied, at any subsequent time, as may be found necessary. (a) Rule 9. (fi) Kule 20. (7) Rule 29. OFFICIAL LIQUIDATOR (a). Appointment 8. The judge may appoint a person to the office of official of off. liq. :— liqui(Jator, without previous advertisement, or notice to any (c) Doncaster Permanent Benefit Building (e) Disderi ^ Co., 18 L. T. 870. Society, 11 W. R. 459; Warjand Com- (/) Chapman's Case, 1 Eq. 346; and mercial Co., W. N. 1876, 279. see supra, p. 350. (d) 12 L. T. 587. GENERAL OEDEB, KOVEMBER 1862. 681 party, or fix a time and place for the appointment of an official 'Rnle 9. liquidator, and may appoint or reject any person nominated at such time and place, and appoint any person not so nominated. (o) Comp. Act, 1862, ss. 85, 92, 93, 141, 150, 152. The object of this rule was, to enable the Court, in cases where all parties at hearing had agreed to the appointment of a well-known person, to make the •" ' "'"■ appointment immediately, and thus accelerate the proceedings. There was jurisdiction to entertain, at the hearing of the petition, the question of the appointment of the oflScial liquidator (g); but the settled! practice was to direct a reference to chambers (h). The reasons have been already stated (i). 9. When a time and place are fixed for the appointment of an Advertisement official liquidator, such time and place shall be advertised in such ment.*^'^'"'' manner as the judge shall direct, so that the first or only adver- tisement shall be published within fourteen days and not less than seven days before the date so fixed (a). (o) Forms 6, 7, in Sch. 10. Every official liquidator shall give security by entering Security of into a recognizance with 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 aforesaid, or of any of them (a). (a) Forms 8-11 in Sch. When the ofBcial liquidator's account is taken the surety will, if he applies, be allowed to attend at his own expense, but the Court will not, except under special circumstances and on special terms, re-open the account on the appli- cation of the surety (Jc). 11. The official liquidator shall be appointed by order (a) ; and Order appoint- 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 received shall be paid into the Bank of England, immediately after the receipt thereof, to the account of the official liquidator of the company, and an account shall be opened there accordingly (/3) ; and an office copy of the order shall be lodged at the Bank of England. (o) Forms 8, 9, in Sch. (0) Form 14 in Sch. ; Eules 36-44, infra. 12. When an official liquidator has given security pursuant to Certificate of the directions in the order appointing him, the same shall be ''"'"''*'? S'^s". (jr) Commercial Discount Co., Cooper's (i) See further ante, p. 265. Case, 1 N. E. 416 ; 32 Beav. 198. {k) Birmingham Brewery Co., W. N. (A) General Financial Bank, 20 Ch. Dir. 1883, 7; 52 L. J. (Ch.) 358; 31 W. B. 276. 415-; 48 L. T. 632. 682 GENEEAL OEDEE, NOVEMBEE 1862, Eule 13. certified by the chief clerk as in the case of a receiver appointed in a cause, subject to giving security. Fresh security 13. The official liquidator shall, on each occasion of passing his w en requij-e , g^gg^y^^ ^^^^ a^jj^ g^jgg 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 in- solvent, and in default thereof he may be required to enter into fresh security within such time as shall be directed, (a) Rule 19, infra. Advertisement J4. Dverv appointment of an official liquidator shall be adver- of appointment ,. -< / \ ■ , i.i ini- • ■,■ ■, made, tised (a), m suoh manner as the judge shall direct, immediately after he has been appointed, and has given security, ((s) Form 15 in Sch, Provisional 15. Where it is desired to appoint provisionally an official liquidator (a), 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 pro- visional official liquidator may, if the judge shall think fit, be appointed without security. (a) Comp. Act, 1862, ss. 85, 92 j Form 9 in Sch.; Rule 59, infra; Comp, (W. Up) Act, 1890, s. i (1), (5). Security. In Order to avoid delay the Ootirt in an urgent case appointed a pro- visional liquidator on Ms undertaking to give security, and on the under- taking of the petitioner to be responsible for moneys, &c., received by the liquidator (Z). A provisional liquidator has bpen appointed without security for a limited purpose (?jf), Vacancy in 16. In case of the death, removal, or resignation of an official oe . iq. ] jq^i(ja,tor (o), another shall be appointed in his room, in the same manner as directed in the case of a first appointment, and the proceedings for that purpose may be taken by such party interested as may be authorized by the judge to take the same. (a) Oomp. Act, 1862, ss. 141, 150, 152 ; Cpmp. (W. Up) Act, 1890, s. 4 (4). Accounts. 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 shall provide and keep such boolis of account as shg,ll be necessary, or as the judge may direct, for the purposes aforesaid, and for shewing the debts and credits of the company, including a ledger which shall contain the separate accounts of the contributories, ^nd in which (J) Marseilles Extension Railway Co., (m) Langham Skating Rink Co., 6 Oh. D. W. N. 1867, 68. 102, ante, p. 265. GENEBAL OBDEB, NOVEMBEB 1862. 683 every contributory shall be debited from time to time with the B^le 18. amount payable by him in respect of any c9.ll to be made as proTided by the said Act and these Eules. A liquidator is not justified in resisting a sumnions simply calling upon him to bring in an account. Any contributory, however small his interest, is entitled to have the account brought in (»). 18. The official liquidator shall be allowed in his accounts, or I}eIlI»unerl^tip^. otherwise paid, such salary or remuneration as the judge may from time to time direct (a), including any necessary employment of assistants or clerks by the official liquidator, to which regard shall be had ; apd such salary or remuneration may either be fixed at the time of his appointment, or at any time thereafter, as the judge may think fit. Every allowauce of such salary or remunera? tion, unless made at the time of his appointment, or upon passing an account, shall be made upon application for that purpose by the official liquidator, on notice to such persons (if any), and supported by such evidence as the judge shall require: neverthe? less, the judge may from time to time allow any sum he may think fit to the official liquidator, on account of the salary op remuneration to be thereafter allowed. (a) Comp, Act, 1862, s. 93, and note thereto. 19. The accounts of the official liquidator shall be left at the Passing ac- judge's chambers at the times directed by the order appointing him (a), and at such other times as may from time to time be required by the judge, and such accounts shall, upon notice to snoh parties (if any) as the judge shall direct, be passed and verified in the same manner as receivers' accounts. (jj) Forms 8, 9, in Sch. ; Rule 11, supr■ under Order. ceedings 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 adjournment, 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 (a), an order (j3) 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) Form 38 in Soh. (jS) Form 39 ; and affidavit of service, Form 42. An order may be made under the Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 5, for payment by instalments (w). An order for payment will not be made in the winding-up against a bankrupt contributory. Payment must be enforced in the Court of Bankruptcy (o). The balance order for payment is an enforcement of the former order, and requires no notice of it to be previously served. Service of the circular giving notice of a call by post is tantamount to personal service (p). Process under the balance order requires personal service, but where that is impossible substituted service may be made ( p). A balance order is not a judgment (j), and is not a good cause of action (r). A bankruptcy notice cannot be issued in respect of it (s). PAYMENT IN OF MONEYS AND DEPOSIT OP SECDEITIES (a). 36. If any official liquidator shall not pay all the moneys Default of received by him into the Bank of England, to the account of the ^^^"f eV"'° official liquidator of the company, within seven days next after the receipt thereof, unless the judge shall have otherwise directed, such official liquidator shall be charged in his account with ten shillings for every £100, and a proportionate sum for any larger amount, retained in his hands beyond such periods, for every seven days during which the same shall have been so retained, (J) See Rule 63, infra. See also Eule 63, infra. (m) Zand Credit Co. of Ireland, 39 L. J. (q) International Marine Co. v. Ilawes (Ch.)-389. 29 Ch. Div. 934. (n) Lewis' Case, 28 L. T. 396. (r) GlmlTi, WM, SfCo.^. Tennent, W N (o) Mitchell's Case, 5 Cli. 400. 1887, 159 ; 57 L. T. 598. (p) De Beamoir's Case, 11 W. R. 321 ; (s) E. p. Whinney, 13 Q. B. D 476 32 L. J. (Cli.) 453 ; under the Act of 1848. 2y 690 GENERAL ORDER, NOVEMBER 1862. Eule 37. and the judge may, for any such retention, disallow the salary or remuneration of such official liquidator. (o) Comp. Act, 1862, s. 104 ; and see Eule 11, supra, and Form 14 in Seh. Bills, &c., to 37. All bills, notes, and other securities payable to the company fn Bk'°of Eng ^"^ ^^ *'^® official liquidator thereof shall, as soon as they shall come to the hands of such ofScial liquidator, be deposited by him in the Bank of England for the purpose of being presented by the Bank for acceptance and payment, or for payment only, as the case may be. Call, &c., to 38. All orders for payment of calls, balances, or other moneys Bk?'of Eng° 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 security 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 purpose of enabling the official liquidator to issue execution or take other proceedings to enforce (a) the payment thereof, or for any other reason, an order may, either before service of such former order, or after the time thereby iixed for payment, be made, without notice, for payment of the same sum to the official liquidator. (a) Comp. Act, 1862, ss. 103, 120. When an order has been made on a contributory to pay money into the Bank to the account of the official liquidator, and it is desired to enforce the order by writ of fi. fa., the ofl&cial liquidator must follow the course here prescribed, and obtain an order for payment of the sum in question to himself, notwithstanding the 103rd section of the Comp. Act, 1862. There seems no reason why, if before any order has been made for payment into the Bank, the Court is satisfied that the issuing of a writ oifi. fa. must eventually be resorted to, the Court should not at once and in the first instance make an order for payment to the oflBcial liquidator (<). As to the right of the official liquidator to take proceedings in bankruptcy upon an order directing calls to be paid to him, see Williams v. Harding (u). Motice as to 39. At the time of the service of any order for payment into b7"Te '°''' *^^ 'S>&T^^ 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 (t) Leeds Banking Co., 1 Ch. 150; 2 Ch. Div. 22 ; .B. jj. 7/ams, 2 Ch. D. 423 ; Waterloo Life, .Jc, Co., 4 N. E. 207. E. p. Whinney, 13 Q. B. D. 476. («) L. R. 1 H. L. 9. Cf- E.p. Muirhead, GENERAL OEDEB, NOVEMBER 1862. 691 such payment, the official liquidator shall furnish the cashier of Rule 40. 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 Affidavit of I money into the Bank of England, an affidavit of the official """"P^^ liquidator, to the purport or effect set forth in Form No. 43 in the third schedule hereto, shall be sufficient evidence of the non- payment thereof. 41. All moneys, bills, notes, and other securities paid and Title of ac- delivered into the Bank of England, shall be placed to the credit of Eng!^ of the account of the official liquidator of the company ; and orders for any such payment and delivery shall direct the same accordingly. DELIVEET OUT OF SECURITIES, AND PAYMENT OUT AND INVESTMENT OF MONEYS (a). 42. All bills, notes, and other securities delivered into the Bank cheques and of England, shall be delivered out upon a request signed by the '^■«i"«^'^- 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. (a) Comp. Act, 1862, 5. 104 ; Form 14 ia Sch. to this Order. When the chambers of the judge are closed for any vsication the chief clerk of another judge may countersign any cheque or order, request or direction required by this or the following rule to be countersigned (a;). 43. All or any part of the money for the time being standing investment. 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 £3 per Gent. Annuities, Eeduced £3 per Cent. Annuities, New £3 per Cent. Annuities, or New £2 10s. per Cent. Annuities, in the name of the official liquidator, or in the purchase of Exchequer bills. All such investments shall be made by the Bank of England, upon a request (a) signed by the official liquidator, 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 retained by (a) See Order of 19 July, 1866, 1 Ch. xvii. 2y2 692 GENERAL OEDEB, NOVEMBER 1862. Rule 44. 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 ofScial liquidator, and countersigned by the chief clerk of the judge, or under an order to be made by the judge. (a) Form 44 in Sch. Receipt of dividends. As to Taoation, see note to Rule 42. 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 iiquidator, and placed to the credit of the account of such official liquidator ; and such of the exchequer bills 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 pay- ment, as cannot be exchanged, and pay the said interest, or principal and interest, as the case may be, into the Bank of England to the credit of the account of the oflScial liquidator of the company. MEETINGS OF CREDITOES OR CONTEIBUTOKIES. Kotice. 45. When the judge shall direct a meeting of the creditors or contributories of the company to be summoned under the 91st or 149 th section of the said Act, the official liquidator shall give notice (o) in writing 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 (a), 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) Form 45 in Sell. Votes. 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 (a) ; but no creditor shall appoint a proxy who is not a creditor of the company whose GENERAL ORDER, NOVEMBER 1862. 093 debt or claim has been allowed, and no contributory shall appoint Rule 47. a proxy who is not a contributory of the company. (a) Form 46 in Sch. Even in cases where this rule does not apply a proxy cannot be given to one who is not a member of the class of which a meeting is convened. Where, at a meeting convened under an order of the Court, proxies were given to the liquidator, the resolution arrived at was ignored and another meeting directed (y). 47. The direction of the judge for any meeting of creditors or Memorandum contributories under the 91st or 149th section of the said Act, ^' *» '^•''""g ' meeting. 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) Form 47 in Sch. ; Chairman's Report, Form 48. DIRECTION OE SANCTION OF THE JUDGB. 48. The sanction of the judge to the drawing, accepting, Bill of ex- making and indorsing of any bill of exchange or promissory note "'^^"S^ or by any official liquidator (a), shall be testified by a memo- note. randum (j3) on such bill of exchange or promissory note, signed by the chief clerk of the judge. (o) Comp. Act, 1862, s. 95. O) Form 49 in Sch. to this Order. 49. Every application for the sanction of the judge to a com- Compromise. promise with any contributory or other person indebted to the company (a), 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 (j3), signed by the chief clerk of the judge, on the agreement of compromise (y), 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. (o) Comp. Act, 1862, s. 160. (;8) Form 51 in Sch. to this Order. (7) Form 50. 50. The direction or sanction of the judge for any other pro- other cases. ceeding or act to be taken or done by the official liquidator (a) shall be obtained upon summons, and an order (/3) shall be drawn up thereon, unless the judge shall otherwise direct. (o) Comp. Act, 1862, ss. 95, 97, 159. (/3) Form 52 in Sch. to this Order. As to s. 168, see Rule 51. (i/) Madras Irrigation Co., W. N. 1881, 120. 694 GENERAL ORDEE, NOVEMBER 1862. Rule 51. ApplicatioE how made. Drawing up orders. APPLICATIONS TO THE COURT OK JUDGE UNDEE SS. 137, 138, 141, 167, AND 168, OF THE ACT. 51. 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 appli- cation under the 167th or 168th section of the said Act shall be made by petition. The judge may, when the summons comes on, direct that the application be heard upon summons (z). OEDEES. 52. All 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. Insertion of adyertise- ments. ADVEETISEMENTS. 58. When an advertisement is required for any purpose except where otherwise directed by these Eules, the advertisement shall be inserted once in the London Gazette, and in such other news- paper or newspapers, and for such number of times as may be directed. The judge may, in such cases as he shall think fit, dispense with any advertisement required by these Rules. Rule 2, supra, as to advertisement, may be relaxed by virtue of this rule (a). Special circumstances must be shewn (b). Notice to admit. 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 neglect- ing, 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 expense. (z) British Envelope Co., W. N. 1885, 84. (a) Zand and Sea Telegraph Co., 18 W. R. 1150; and see Rule 2, supra. (I) City and County Bank, 10 Ch. 470 ; Army and Navy Hotel, 31 Ch. D. 644. GENERAL OEDEE, NOVEMBBE 1862. 695 Eule 55, AFFIDAVITS. 55. Where an order shall have been made for the winding-up of Filing and any company, any person intending to use any affidavit in any pro- ofaffidaTitl Deeding under such order, shall file the same in the Eecord and Writ Clerk's OfSce, and give notice thereof to the official liqui- dator. The person, other than the official liquidator, filing the affidavit shall not be required 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 proceeding upon which it is intended to be used, unless the judge shall otherwise direct. CERTIFICATE OF CHIEF CLERK. 56. The 48th, 49th, 50th, 51st, 52nd, and 55th Eules of the Chief cieik's 35th of the Consolidated General Orders, shall apply to all cer- tificates of the chief clerk in the matter of the winding-up of any company ; nevertheless, certificates on passing the official liquida- tor's accounts may be approved and signed by the judge without delay, and upon being so signed, shall be filed and forthwith acted upon. REGISTER AND FILE OF PROCEEDINGS. 57. A register shall be kept of all proceedings in the judge's Register of chambers, in each matter, in the same manner as required by the Proceedings.- 57th Eule of the 35th of the Consolidated General Orders, and no documents or proceedings are to be filed in the judge's chambers, unless the judge shall otherwise direct. 58. All orders, exhibits, admissions, memorandums, and office File of pro- copies of affidavits, examinations, depositions, and certificates, 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 free of charge, and, at his own expense, to take copies or extracts from any of the documents comprised therein, or to be furnished with such copies or extracts at a rate not exceeding three-halfpence per folio of seventy-two words ; and such file shall be produced in Court, or before the judge, and otherwise, as occasion may require. 69G GENEEAL ORDER, NOVEMBER 1862. Eule 59. Solicitor's lien. Provisional off. liq. The solicitor to the official liquidator has no lien for his costs on the file of proceedings in the winding-up and the documents relating thereto (c). PROVISIONAL OFFICIAL LIQUIDATORS (a). 59. All the above Eules relating to official liquidators shall, as far as the same are applicable, and subject to the directions of the judge in each case, apply to provisional liquidators. (a) Comp. Act, 1862, ss. 85, 92 ; Form 9 in Sch. to this Order. Attendance i parties. Appointment of representa- tive jiarty. ATTENDANCE AND APPEARANCE OF PARTIES. 60. Every person for the time being, on the list of contributories of the company (a), left at the chambers of the judge by the official liquidator, 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 proceedings before the judge, and shall be entitled, upon payment 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 attendance 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. (a) Rule 29, supra. A contributory is entitled, under the liberty given by this rule, not only to attend the cross-examination by the official liquidator of a person claiming to be a creditor of the company, but also to cross-examine such claimant on his affidavit filed in support of the claim, such cross-examination to be limited to the matters referred to in such affidavit (d). But an examination under the Companies Act, 1862, s. 115, is of a private character, and not one which parties are entitled to attend under this Eule (e). In the European Arbitration Lord Westbury would not allow any absorbed company to appear separately (/). 61. The judge may from time to time appoint any one or more of the contributories, or creditors, as he thinks fit, to represent before him, at the expense of the 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 (e) Grey's Brewery Co., 25 Ch. D. 400 ; Korwich Equitable Co., 27 Ch. Div. 575 ; ante, p. 304. (/) India and London Co., E. p. Dyke (Eur. Arb.), L. T. 10. (c) Union Cement Co., E. p. Pulirook, 4 Ch. 627. See further, ante, p. 296. (d) JJr.iiiipton and Zoni/iuim Haihcay Co., 11 I'-ij. 428. See Bates v. Elcy, 1 Ch. D. 473. GENBEAL ORDER, NOVEMBER 1862. 697 company, and may remove the person or persons so appointed. Rule 63, In case more than one person shall be so appointed, they shall unite in employing the same solicitor to represent them. Unless appointed under this rule contributories or creditors who appear on proceedings in the winding-up will, even if heard {g), be treated as appearing at their own expense Qi). And the costs of the appearance of a creditor's representative will not be allowed except in special cases {i). 62. No contributory or creditor shall be entitled to attend any Pniticuiars proceedings at the chambers of the judge, unless and until he has teforettteV entered in a book (a) to be kept there for that purpose his name ance. 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. (a) Form 53 in Sch. SERVICES OF SUMMONSES, NOTICES, &C. (a). 63. Services upon contributories and creditors shall be effected Service how (except when personal service is required) by sending the notice, ^ ^'^^ ■ or a copy of the summons or order or other proceeding, through the post in a pre-paid 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 address 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 proceeding, 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 notwithstand- ing the same may be returned by the post-office. (o) As to service on the company, see Comp. Act, 1862, ss. 62, 63, The Winding-up Act, 1848 (11 & 12 Vict. c. 45), s. 138, provided that Contributory service by post should be sufficient upon a party, whether within or out of out of the the jurisdiction. The Companies Act, 1862, contains no similar provision : J'^i'sdiction. but it has been held that service of notice of intention to make a call (Rules 33, 34, supra) may be made through the post on a contributory out of the jurisdiction, so far as to warrant the mere making of the call, inasmuch as upon any proceedings in the foreign Court to enforce payment of the call, it would be open to the contributory to raise the question of the validity of that mode of service Qc). So notice of an appointment to settle the list of contributories may be served out of the jurisdiction Q). (g) See supra, p. 247. W. R. 973 ; 16 L. T. 725. (A) S. p. Oakes and PeeJi, 3 Eq. at (J) Nathan, Newman, ^ Co., f35 Ch. p. 634. Div. 1 ; LieUg's Cocoa Works, W. N. 1888, (i) Maclver's Claim, 5 Ch. 424. 120. (^) General International Arenoy Co., 15 698 GENERAL ORDER, NOVEMBER 1862. Eule 64. But there is no power to give leave to serve out of the jurisdiction orders " and proceedings which require to be enforced (m). A balance order to enforce payment of a call by a shareholder resident in Ireland, to whom notice (n) of the call had been given only by a letter sent by post to his registered address, was made subject to any objection which the shareholder might make (o). Leave was in an early case given to serve a summons taken out under Companies Act, 1862, s. 165, upon officers of the company resident in Scot- land (p). See further, as to service by post under the old Winding-up Acts, Be Beauvoir's Case (j). Companies in As to the service of notices on shareholders in mining companies in the the Stannaries. Stannaries, see 32 & 33 Vict. c. 19, s. 8. Name of person 64. No Service under these Eules shall be deemed invalid by mcomp e e. reason that the Christian name, or any of the Christian names of the person on whom service is sought to be made, has been omitted, or designated by initial letters, in the list of contribu- tories, 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. Proceedings on 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 payments, and verified by his affidavit ; and the official liquidator 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 recognizance entered into by the official liquidator and his sureties may be vacated. Dissolution of 66. When the official liquidator has passed his final account, and the balance (if any) certified to be due thereon has been paid in such manner as the judge shall direct, a certificate (a) shall be made by the chief clerk that the affairs 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 (j3) that the company be dissolved from the date of such order. (a) Form 55 in Soli, to this Order. (ff) Comp. Act, 1862, s. Ill ; Form 56 in Sch. to this Order. termination. company. (m) Anglo-African Steamship Co., 32 Ch. (p) British Imperial Corporation, 5 Ch. i)lv. 348 ; of. Be Jellard, 39 Ch. Div. 424. D. 749 ; Household Insurance Co., W. N. (n) See Rule 34, supra. 1878, 26, ante, p. 309. (o) land Credit Co. of Ireland, 39 L. J. (?) 32 L. J. (Ch.) 453 ; 11 W. R. 321 ; (Ch.) 389. supra, p. 689. aENEEAL ORDER, NOYEMBBR 1862. 699 67. When the proceedings for winding up any company have Rule 67. been completed, the file of proceedings (a) and the book contain- Deposit of ing the official liquidator's account, shall be deposited in the ^'' °^ P™" ° ^ ' '^ ceedings. Jttecord and Writ Clerk's office. (b) Rule 58, supra. DUTIES OF SOLICITOR OF OFFICIAL LIQUIDATOR (a). 68. The solicitor of the official liquidator shall conduct all such Duties of proceedings as are ordinarily conducted by solicitors of the Court ; ^° ^"^ "'' and where the attendance of his solicitor is required on any pro- ceeding in Court or chambers, the official liquidator need not 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. (o) Comp. Act, 1862, s. 97. FORMS. 69. The forms set forth or referred to in the third schedule to Forms, these Orders, with such variations as the circumstances of each case may require, may be used for the respective purposes men- tioned in such schedule. FEES. 70. Solicitors shall be entitled to charge, and be allowed the Solicitors' fees, 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 Court fees, schedule hereto, shall be paid in relation to proceedings 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 J^g^**'"" "^ of any costs, the order shall direct the taxation thereof by the taxing-master ; except in cases where a gross sum in lieu of taxed costs is fixed by the order, in accordance with the 37th Rule of the 40th of the Consolidated General Orders. POWER OF JUDGE. 73. The power of the Court, and of the judge sitting in ^/j'^'dgl"^"'""" chambers, to enlarge or abridge the time for doing any act, or taking any proceeding, to adjourn, or review any proceeding 700 GENERAL ORDEE, NOVEMBER 1862. Rule 74. and to give any direction as to the course of proceeding, is unaifected by these Eules. See Rule 4, supra, as to enlargement of time; E. p. Clarke (r) as to rescission of compromise obtained by misrepresentation. GENEEAL DIRECTIONS. General prao- 74. The general practice of the Court {a), including the course tice to apply. ^^ proceeding and practice of the judges' chambers, as provided by the statute 15th and 16th Victoria, chapter 80, and the G-eneral Orders of the Court relative thereto, shall, in cases not provided for by the Companies Act, 1862, or these Eules, and so far as the same are applicable, and not inconsistent with the said Act, or these Rules, apply to all proceedings for winding-up a company. (a) Comp. Act, 1862, s. 170. See In re English Joint Stock Bank (s) and E. p. Kintrea (t). APPLICATION OF RULES. Appiicatioii;of 75. These Rules apply only to proceedings under the Com- panies Act, 1862. COMMENCEMENT OF RULES. Commeace- 76. These Rules shall take effect and come into operation on ment of Rules. ^^^ ^f^^^. ^j^g 25th day of November, 1862. INTERPRETATION. intcrpieta- 77. The Ist Rule of the 23rd of the Consolidated General Orders (a), and the general interpretation clause therein, shall be deemed to extend and apply to the Rules of this Order; and such Eules shall have the effect of, and be deemed to be General Orders of the Court. (a) meaning of the words, "The Judge," Records and Writs," in a decree or order. "The Taxing-Master," "The Clerk of Westbury, C. John Romilly, M.R. EicHD. T. Kindersley, V.C. John Stuart, V.C. W. P. Wood, V.C. (!•) 14 W. R. 856; U L. T. 7S9 ; and (s) 3 Eq. 203. Comp. Act, 1862, o. 160. (i) 5 Ch. 95. tion GENERAL ORDER, NOVEMBER 1862, SCH. I. 701 THE FIRST SCHEDULE. Fees asd Charges to be allowed to Solioitoes. For preparing and drawing up every order made at chambers, and attend- ing for same, and at the registrars' office to get same entered For engrossing every order, in addition to the above fee, per folio For other duties perforraetl, such of the fees on the higher scale authorized by the 2nd Eule of the 38th of the Consolidated General Orders, and the regulations as to solicitors' fees subjoined thereto, as are applicable ; except that the special fee allowed on creditors' claims is not to apply. "Where under such regulations a fee of three 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 five guineas. The fee of 2s. Gd. allowed by such regulations for notices and services shall be reduced to Is. 6d., where the service may be effected as provided by the above Eule 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 print- ing, and amount to more than £3. 13 THE SECOND SCHEDULE. Fees to be collected by Means of Stamps. In the Judges' Chambers. For every summons .. .030 For every order drawn up by the chief clerk . . ..050 For every advertisement 100 JFor every certificate . . . . . . . . . . .050 For every oath, affirmation, declaration, or attestation upon honour .016 In the Begistrars' Office. For every order made in Coui-t 100 For every order made in Chambers . . 5 For every office copy of an order . . 5 In the Examiners' Office. The same fees as those directed to be paid and collected in such office by the 2ud Eule of the 39th of the Consolidated General Orders, and the Eegulations subjoined thereto. ' In the Record and Writ Clerks' Office, and Beport Office. Such of the fees directed to be paid and collected in such office by the 2nd Bule of the 39th of the Consolidated General Orders, and the Eegu- lations subjoined thereto, as are applicable. In the Taxing Masters' Office. The same fees as those directed to be paid and collected by the 2nd Eule of the 39th of the Consolidated General Orders, and tire Eegulations subjoined thereto. In the Office of the Lord Chancellor's Principal Secretary. For every petition 100 In the Office of the Secretary at the Boll?. For every petition ..100 702 GENERAL OEDBR, NOVEMBER 1862, SOH, III. Forml. THE THIRD SCHEDULE. FORMS. No. 1. Advertisement of Petition. [Rule 2.] In the Matter of the Companies Act, 1862 [and 1867 : See Geu. Order, March, 1868, R. 1] ; 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 superviaion of the Court] of Chancery wag, on the day of 18 , presented to the Lord Chancellor [or, the Master of the Rolls] by the said company [or, by A. B,, of , a creditor [or, contributory] of the said company [or, as the case may 6e]. And that the said petition is directed to be heard before the Vice-Chancellor [or. Master of the Rolls] on the day of 18 ; 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 [Acts] 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 contribu- tory of the said company requiring the same by the undersigned on payment of the regulated charge for the same. C. & D., of &o. [agents for B. & P., of, &c.] Solicitors for the petitioner. No. 2. Affidavit verifying Petition. [Rule 4.] In Chancery. In the Matter, &o. I, A. B., of, &c., make oath and say, that such of the statements in the petition now produced and shewn to me, and marked with the letter A., as relate to my own acts and deeds are true, and such of the said st atements as relate to the acts and deeds of any other person or persons, I believe to be true. Sworn, &o. No. 3. Order for Winding-up ly the Court. [25 & 26 Vict. c. 89, ss. 81, 82.] The Master of the Rolls j day, the day of 18 . [or, Vice-Chancellor [ ]. I In the Matter, &o. 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 18 , 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, &o., verifying the sail! petition, an affidavit of L. M. filed the day of 18 , the London, Gazette of the day of , the Times newspaper of the day of [enl^r any other papersl, each containing an advertisement of the said petition [enter any other evidence]. 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, suhjict to Supervision. 25 & 26 Vict. o. 89, ss. '147, 148.] The Master of the Rolls 1 day, the day of 18 . [iir, Vice-Chancellor > ]. I In the Matter, &c. Upon the petition, &c., His Honour [or, this Court] doth Order, that the voluntary winding-up of the said company be continued, but subject to the supervision of tills Court : and any of the proceedings under the said voluntary winding-up may be ailciplod as the judge shall think fit. And the creditors, contributories, and liqui- dators 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 oocasion. GENERAL ORDER, NOVEMBER 1862, SOH. III. 703 No. 5. Advertisement of Order to Wind up. [Rule 6.] In the Matter, &a. By an Order made by the Master of the Eolla [or, the Vioe-Ohanoellor ] in the above matter dated the day of 18, on the petition of the above-named company [or, A. B., of ], It wa3 Ordered that, &o. [as in Order']. 0. & D. of, &o., Solicitors for the said Petitioner. No. 6. Advertissment of Time and Place fixed for the Appointment of Official Liquidator. [Rule 9.] In the Matter, &o. Notice is hereby given, that the Master of the EoUs [or, the Vioe-Chancellor J has fixed the day of 18 , at o'clock in the noon, at his chambers in the Rolls Yard, Chancery Lane [or, at No. Lincoln's Inn], in the County of Middlesex, as the time and place for the appointment of an oiHoial liquidator of the above-named company. O TT Chief Clerk. Form 5. No. 7. Proposal for Appointment of Official Liquidator (and Sureties) where Form No. 6 has lieen issued. In the Matter, &c. We, the undersigned contributories of the above-named company for the number of shares placed opposite our respective names, hereby propose Mr. W. T., of &o., public accountant, to be the official liquidator of the said company and H. N., of &c., and J. P., of &o., to be his sureties]. Name. Address. Number of Shares held. No. 8. Order appointing an Official Liquidator. [Rules 10, 11.] , the day of 18 Master of the Rolls [or, I Vice-Ohanoellor I ] j In the Matter, &o. at chambers. J Upon the application, &c., and upon reading, &c., the judge doth hereby appoint E. P. H., of &c., official liquidator of the above-named company. [If security has not teen given, add. And .it is Ordered that the said E. 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 E. P. H. do, on the day of , and ps" day of 18 , and the same days in each succeeding year, leave his accounts at the chambers of the said judge. And it is Ordered that all moneys to be received by the said E. P. H. be paid by him 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. [In case two or more official liquidators are appointed, add. And the said judge doth declare that the following acts, required or authorized 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 authorized to be done be done by both [or, all] the'official liquidators hereby appointed.] 704 GBNEEAL ORDEB, NOVEMBEE 1862, SOH. III. Pnrm 9 No. 9. Order appointing a Provisional OMoial Liquidator. -lllril:= [Rules 10, 11, 15, 59.] Master of the Rolls [or, \ , the day of 18 . Vioe-Ohancellor I ] j In the Matter, &c. at chambers. ) Upon the application, &c., and upon reading, &c., the judge doth hereby appoint E. P. H., of &o., provisionally, official liquidator of the above-named company. [If security dispensed with, add, without security; or, if security is to he given, add directions as to security, accounts, and payment into the ianlc, as in Form 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 -which the provisional official liquidator is to be authorized to do.] No. 10. Eecognizance of the Official Liq;uidator and Sureties. [Rule 10.] R. P. H., of &o., W. B., of &c., and T. P., of &c., before our Sovereign ^ ^ . Lady the Queen in her High Court of Chancery personally appearing, ^a% do acknowledge themselves, and every of them doth acknowledge himself, 3 .a 3 to owe to the Eight Honourable Sir John Romilly, Knight, the Master of S &^ the Rolls, and the Honourable Sir Richard Torin Kindersley, Knight, ^ So the senior Vice-Chancellor for the said Court, the respective sums of 9 g „" lawful money of Great Britain set opposite to their respective names in _g Js • the schedule hereto, to be paid to the said Sir John Romilly and Sir t,- .u Richard Torin Kindersley, or one of them, or the executors or adminis- s£.J trators of tliem, or one of them ; and in default of payment of the said g »? sums, the said R. P. H., W. B., and T. P., are willing and do agree, and oj o ■g every of them is willing, and doth agree, for himself, his heirs, executors, ^ a,^ and administrators, by these presents, that the said sums shall be levied, " 3 ° recovered, and received of and from them and every of them, and of o g and from all and singular the manors, messuages, lands, tenements, and ^ g, hereditaments, goods, and chattels, of them and every of them, wheresoever . 3 §• the same shall be found. Witness our Sovereign Lady Victoria, by the 00 „ a grace of God of the XJnited Kingdom of Great Britain and Ireland H^ Queen, Defender of the Faith, and so forth, at Westminster, the day of , 18 . Whereas, in the matter of &o. [talte title from Order to wind up'], the Master of the Rolls [or, Vice-Chancellor ] has by an order dated the day of , 18 , appointed the said E. P. H. official liquidator of the said company, and has thereby directed him to give security to be approved of by the said judge [or, in case the security precedes the Order appointing, has approved of the said E. P. H. as a proper person to be appointed official liquidator of the said compauy, 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 recogni- zance, 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 appro- bation the chief clerk of the said judge hath signed an allowance in the margin hereof. Now the condition of the above- written recognizance 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 recoguizance to be void, otherwise to remain in flill force and virtue. The Schedule above kefekeed to. R. P. H. . . . Thousand pounds. W. B. . . . Thousand pounds. T. P. . . . . Thousand pounds. Taken and aokuowlodged by the above-named E. P. H., &e., &o. No. 11. Affidavit of Sureties. [Eulo 10.] In Chancery. In the Matter, &c. AVo, W. B., of &o., and T. P., of &o., severally make oath, and say as follows: — 1. I, tho said W. B., for myself, sny that I am worth the sum of £ , of lawful GENEEAL ORDER, NOVEMBER 1862, SOH. III. 705 money of Great Britain, over and above what is sufficient for the payment of all my Form 12. just debts and liabilities. 2. And I, the said T. P., for myself, say that I am worth the sum of £ , of &o. [as above]. Swoni, &o. No. 12. Sanction of Appointment of Solicitor to Official Liquidator, and Appointment. [25 & 26 Vict. c. 89, s. 97.] In the Matter, &e. The Master of the Rolls [or, Vioe-Chanoellor ] sanctions the official liqui- dator appointing a solicitor to assist him in the performance of his duties. P XT Chief Clerk. I hereby appoint Messrs. C. and D., of &c., to be my solicitors in this matter. Dated this day of , 18 . E. P. H., Official Liquidator. No. 13. Order for ■payment of Money or delivery of Boohs, &c,, to Official Liquidator. [25 & 26 Vict. c. 89, ss. 100, 101.] The Master of the Rolls \ day, tho day of , 18 . [or, Vice-Chaneellor I ] j In the Matter, &c. at chambers. j Upon the application of, &o., and on reading, &o., It is ordered, that A. B., of &o., 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 E. 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 desoribe the property] now being in the hands of the said A. B., and to which the said company is prima facie entitled, [or, otherwise, as the case may be.] No. 14. Direction to open Account at the Sank of England. [Rules 11, 32, 36-44.] The Master of the Rolls ) day of , 18 . [or, Vice-Chancellor I ] I In the Matter, &c. at chambers. j To the Governor and Company of the Bank of England. Gentlemen, An Order, dated the day of , 18 , having been made in the above matter by the Master of the Rolls [or, the Vice-Chancellor ] for winding up the above-named 'company by the Court of Chancery, under the provisions of the said Act, and E. P. H., of , having by order dated the day of 18 , been appointed the official liquidator of the said company, you are requested to open an account, to be entitled " The Account of the Official Liquidator 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 one of the chief clerks of the said judge, whose signatures are also attached hereto. I am, Gentlemen, Your most obedt. Servt., P XT Chief Clerk. E. P. H., Official Liquidator. p T^ I Chief Clerks of the Master of tlie g- ^- \ Rolls [or, Vice-chancellor 2z 706 GENERAL OEDEB, NOVEMBEE 1862, SCH. III. Form 15. No. 15. Advertisement of Appointment of Official Liquidator. [Eule 14.] In the Matter, &o. The Master of the KoUb [or, the Vice-Chancellor ], has, by an Order dated the day of , 18 , appointed B. P. H., of , to be official liquidator of the above-named company. Dated this day of , 18 . G. H., Chief Clerk. No. 16. Advertisement for Creditors. [Eule 20.] In the Matter of, &o. The creditors of the above-named company are'required, on or before the day of 18 , 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 E. P. H., of , the ofScial 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 EoUs, [or, the Vice-Ohancellor ], in the Eolls Yard, Chancery Lane] or, at No. Lincoln's Inn], in the county of Middlesex, at such time as shall be specified in such notice, or in default thereof they will be excluded from the benefit of any distribution made before such debts are proved. day, the day of 18 , 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 18 . " CMef Clerk. No. 17. Affidavit of Official Liquidator as to Debts and Claims. [Eule 22.] In Chancery. In the Matter, &c. I, E. P. H.,of &c., the official liquidator of the above-named company, make oath, and say as follows : — 1. I have in the paper writing now produced and shewn to me, and marked with the letter A., set forth a list of all the debts and claims the 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 18 ; 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 list, 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. Exhihit referred to in Affidavit No. 17. A. In the Jlatter, &o. 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 shewn to E. P. H., and is the same as is referred to in his affidavit, sworn before me this day of 18 . W. B., &c. GENERAL ORDER, NOVEMBER 1862, SCH. III. 707 First Part. — Debts and Claims proper to be allowed without further Evidence. Form 19. Serial Names of No. Creditors. Addresses and De- scriptions. Particulars of Debt or Claim. Amount claimed. Amount proper to be allowed. Reasons for belief that amounts are proper to be allowed. Second Part. — Debts and Claims which ought 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. In the Matter, &c. Sir, [Rule 23.] [Place and date.] The debt claimed by you in this matter has been allowed by the judge at the sum of £ ■ [Jf ?<"■* 0'"'^ allowed, add, If you claim to have a larger sum allowed, you are hereby required to come in and prove the further amount claimed, &e., as in next Form.'] I am, &o., E. P. H., Official Liquidator. To Mr. P. E. No. 20. Notice to Creditors to come and prove their debts. [Rule 24.] In the Matter, &o. 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 Eolls, in the Eolls Yard, Chancery Lane [or of the Vice-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. Dated this day of 18 . E. P. H., Official Liquidator. To Mr. S. T. No. 21. Affidavit of Creditor, in Proof of Debt. [Rule 24.] In Chancery. In the Matter, &c. I, S. T., of &o., make oath and say as follows : — 1. The above-named company was, on the day of 18 , the date of the order for winding up the same, and still is justly and truly indebted to me in the sum 2z2 708 GENEBAL ORDEB, NOVEMBER 1862, SCH. III. Vnrm 09 of £ , for, &c., [Describe shortly the nature of the debt, and exhibit any lecarity ZZ^—ZZI—for it; and in the case of a trade debt exhibit a bill of parcels, and verify the reasonableness 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 part thereof, [if any security add}, except the said [describe the security} hereinbefore mentioned or referred to. Sworn, &c. No. 22. Certificate of Chief Clerk, as to Debts and Claims. [Rule 28.J In the Matter, &c. In pursuance of the directions given to me by the Master of the Rolls [or, Vice- Chancellor ], I hereby certify that the result of the adjudication upon debts and claims against the above-named company, brought in pursuant to the advertise- ment issued in that behalf, dated the day of 18 , 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 schedule 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 £i per cent, per annum, from the day of 18 , being the date of the said order to wind up the company, down to the date of this certificate (u). 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 Creditors. Addresses and Descriptions. Particulars of Debt. Total due. 1 J. L. 29 Street, London, Stationer Principal .... Interest at £ per cent, per annum (less Property Tax) from 18 to the date of this certificate Costs of Proof . . On Bill of Ex- change, dated &c. £ £ £ £ s. d. Total first Part £ (ii) See Rule 26, and note tliereto. GENERAL ORDER, NOVEMBER 1862, SCH. Ill, 709 Second Part. — Debts and Claims wMoh do not carry Interest. Form 23. No. Names of Creditors. Addresses and Descriptions. Particulars of Debt. Interest on Principal (less Property Tax), , Total due. 40 W. P. 15 Street, London. Coal Merchant Principal . . . Costs of Proof . Total Goods sold £50 2 Totals £ Add total first and seco £ s. d. 2 £ s. d. 54 first Part £ nd Parts £ THE SECOND SCHEDULE ABOVE REFERRED TO. No. Names of Creditors. Addresses and Descriptions, Particulars of Claim. Amount Claimed. £ s. d. Dated this day of 18 G. H,, Chief Clerk. Approved the ) day of 18 - . i Sir, No. 23. Notice to Creditor to attend to receive Debt. [Rule 28.] In the Matter, &c. 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 tliis matter as under : — Principal £ Interest . .... £ Costs of Proof £ Total £ 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 18 . I am, &c., R. P. H., Official Liquidator. To Mr. S. T. 710 Form 24. Sir, GENERAL ORDEE, NOVEMBER 1862, SOH. III. [Form of Order.] referred to in the above letter Please to deliver to W. B. the cheque for £ as payable to me. To Mr. B. P. H., Official Liquidator of the Company. S. T., Creditor. No. 24. Affidavit in support of List of Contributories. In Chancery. [Eule 29.] In the Matter, &o. I, E. P. H., of &o., the official liquidator of the above-named company, make oath, and say as follows : — 1. The paper writing now produced and shewn to me, and marked with the letter A., contains a list of the contributories of the said company, 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, &o. This list of contributories, marked A, was produced and shewn to E. P. H., and is the same list of contributories as is referred to in his affidavit, sworn before me this day of 18 . "W. B., &o. First Fart. — Contributories in their own Eight. Serial No. Name. Address. Description. In what Character included. Number of Shares [or, extent of Interest]. Second Fart. — Contributories as being Representatives of, or liable to the Debts of Others. Serial No. Name. Address. Description. In what Character includeJ. Number of Shares [or, extent of Interest]. GENERAL ORDER, NOVEMBER 1862, SCH. III. YU No. 26. Notice to Contrihuiories of Appointment to settle List of •■ Contributories. [Rule 30.] In the Matter, &o. The Master of the Rolls [or, Vioe-Ohancellor ] has appointed the day of 18 , at of the clock in the noon, at his chambers in the Rolls Tard, Chancery Lane [or, at No. , Lincoln's Inn], in the county 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 iu such list in the character and for the number of shares [or, extent of interest] stated below ; and if no sufficient cause is shewn by you to the contrary at the time and place aforesaid, the list will be settled by the said judge, including you therein. Dated this day of 18 . E. P. H., Official Liquidator. To Mr. A. B. [and to Mr. > C. D., his solicitor]. J Form 26. No. on List. Name. Address. Description. In what Character included. Number of Shares [or, extent of Interest]. No. 27. Affidavit of Service of Notice. [Rule 30.] In Chancery. In the Matter, &a. I, W. S., of &c., clerk to Messrs. C. B., 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 shewn 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 Rolls [or, Vice- Chaucellor ], by the said official liquidator, on the day of . ^^ i and now on the file of proceedings of the said company, as I know from having, on the day of 18 , 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 18 , in the manner hereinafter mentioned, serve a true copy of the notice now produced and shewn 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. No. 28. The Schedule referred to in Form No. 27. A. In tli6 llt^s-ttsi* &c This schedule marked A was produced and shewn to W. S., and is the same 712 GENERAL OllDEK, NOVEMBER 1862, SCH. III. 3 day of W. B., &c. Form 29 schedule as is referred to in his affidavit, s-n'ora before me this day of 18 1. 2. 3. 4. 5. 5J 6. 7. Names and Addresses of Eeduced ; and in the Matter of " The Companies ] at Chambers. | 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 Honourable the Lord High Chancellor of Great Britian [or. Master of the Rolls], it is Ordered, that an enquiry be made what are the debts, claims, and liabilities of or affecting the said company on the day of 18 , 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 persons who are creditors of the company on the said ,day of , and an ofSoe 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 Companies 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 of 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 18 . 0, & D. of [agents for A. & B., of ], Solicitors to the company. No. 3, Affidavit verifying List of Creditors. [Rule 7.] In Chanceiy. In the Matter of The Company, Limited and Reduced ; and in the Matter of " The Companies Act, 1867." I, A. B., of c&c,, make oath and say as follows : — 1. The paper writing now produced and shewn to me, and marked with the letter A., contains a list of the creditors of and persons having claims upon the said company on the day of , 18 (the date fixed by the Order in this matter dated ), together with their respective addresses, and the nature and amount of their respective debts or claims, and such list is, to the best of my knowledge, information, and belief, a true 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 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 thnn 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 fiom informa- tion derived upon investigation of the affairs and the books, documents, and papers of tlio said company. Sworn, &c. List of Creditors referred to in the last Form. A. In the Matter, &o. This list of creditors marked A. was produced and shewn to A. B., and is the GENERAL ORDEB, MARCH 1868. 733 same list of creditors as is refeMed to in his affidavit sworn before me this da of 18 . X.Y., &o. Form 4. 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 presented 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 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. No. 5. [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 £ .A list of the persons admitted to have been creditors of the company on the day of 18 , may be inspected at the ofBoes of the company at , or at the ofBoe of , at any time during usual business hours, on payment of the charge of one shilling. Any person who claims to have been on the last-mentioned day and still 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 undersigned 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, 0. D., of &c. [the secretary of the said company], E. F., of &c. [the solicitor of the said company], and A. B., of &o. [the managing director of the said company], severally make oath and say as follows : — I, the said C. D., for myself, say as follows : — 1. I did, on the day of 18 , in the manner hereinafter mentioned, [Rule 9.] 734 GENBEAL OEDEE, MAECH 1868. Form 6. serve a true copy of the notice now produced and shewn to me, and marked B., upon " each of the respective persons whose names, addresses, and descriptions appear in the first column of the list of creditors marked A., referred to in the afSdavit of filed on the day of 18 . 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 re- spective 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 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 And I, the said B. F., for myself, say as foUows : — If notice issued 3. A true copy of the notice now produced and shewn to me, and marked 0., has under Rule 10. appeared in the of the day of 18 , the of the day of 18 , &c. [Rule 11.] 4. I have, in the paper writing now produced and shewn 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 produced and shewn 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 18 . If notice issued 5. I have, in the paper writing now produced and shewn to me, marked E., set under Rule 10. forth a list of all claims, the particulars 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 18 , 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 : — [Rule 11.] 6. We have, in the first part of the said paper writing, marked D. (now produced and shewn to us), and also in the first part of the said paper writing, marked E. (also produced and shewn to us), respectively set forth sucli of the said debts and claims as are 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. [Rule 11.] 7. We have, in the second palrt of each of the said paper 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 B., are distinguished such of the debts the full amounts whereof are prbposed to be set apart and appropriated in such manner as the judge shall direct. Sworn, &c. Exhibit S., referred to in the last-mentioned Affidavit. In the Matter, &o. List of debts and claims of which the particulars hate 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 shewn 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 18 . X. Y., &c. First Past. Dehts and Claims wholly or partly admitted hy the Company. Names, Addresses, and Descriptions of Creditors. Particulars of Debt or Claim. Amount claimed. Am6unt admitted by the Company to be owing to Creditor. Debts proposed to be set apart and appropriated in full, although disputed. GENEEAL ORDER, MARCH 1868. Second Pabt. Debts and Claims wholly disputed ly the Gompany. 735 Form 7. Names, Addresses, and Descriptions of Claimdnts. Particulars of Claim. Amount claimed. Debts proposed to be set apart and appropriated in full, although disputed. Exhibit Mi, referred to in the last Affidavit. E. In the Matter, &o. List of debts and claims of whioli the particulars have befen sent in to Mr. by persons clfiiming to be creditors of the dompsiny, and to be entered on the list of the creditors made out by the company. This paper writing marked E. was produced and shewn to '0. D., B. P., and A. B., respectively, and is the same as is referred to in their affidavit sworil before ifle this day of 18 . X, Y., &o. PiKST Part. [Same as in Exhibit D.] Second Pakt. [Same as in Exhibit D.] Note. — The names are to be inserted alphabetically. No. 7. [See Rule 12.] In the Matter of The Company, Litnited and Eeduoed; the Maltter of " The Coinpanies Act, 1867." and in To Mr. You are hereby required to come in and prove the debt claimed by you against the above company, by filing your afSdavit and giving notice thereof to Mr. the solicitor of the company, 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 Rolls Yard, Chancery Lane, or the Vioe-Ohancellor 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 £lny securities or documents relating to your claim. 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. 736 GENBEAL ORDEE, MAECH 1868. Form 8. 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 Chancellor] or [the Master of the Rolls], on the day of , for confirming a resolution reducing the capital of the above company from £ to £ , is directed to be heard before [the Vice-Chancellor J or [the Master of the Rolls], on the day of 18 . 0. & D. of [agents for E. & F. of J. Solicitors for the company. Oaibns, C. romillt, m.r. John Stuakt, V.C. RiOHAED MalINS, V.C. ( 737 ) GENERAL EULES MADE PURSUANT TO SECTION 26 OF THE COMPANIES (WINDINa-UP) ACT, 1890. Pebliminart. 1. These Eules may be cited as " The Companies Winding-up EuleS, Short title 1890." They shall come into operation on the first day of January one and com- thousand eight hundred and ninety-one. mencement. 2. In these Rules, unless the context or subject matter otherwise fe- Interpreta- qUires, — tion of terms. (a.) " The Acts " means the Companies Acts, 1862 to 1890. " The Company " means a company which is being wound up, or agaiiist which proceedings to have it wound up have been commenced. " The Court " includes a Judge of the Court, and a chief clerk of the Chancery Division of the High Court or other officer of the Court when exercising the powers of the Court pursuant to the Acts or these Eules, or the practice of the Court. " Creditor " includes a corporation, and a firm of creditoj^s in partnership. "Gazetted" means published in the London Gazette. " Judge " means in the High Court the Judge to whom the petition to wind up the company is assigned, and in any other Court the Judge thereof or of&cer who exercises the powers of the Judge thereof. " Proceedings '' means the proceedings in the winding up of a company under the Acts. " Official Receiver '* includes any officer appointed by the Board of Trade to discharge the duties of Official Receiver under the Acts. " Registrar," as Applied to a County Court, includes, where there are joint Registrars, either of such Registrars, or a Deputy Registrar, and ats applied to any Court other than the High Court, means and includes the officer of the Court whose duty it is to exercise in relation to a winding up the functions which in the High Court are exercisfed by a Eegistrar or Chief Clerk. " Sealed " rqeans sealed with the seal of the Court. " Taxing Officer" means the officer of the Cotirt whose duty it is to tax costs in the proceedings of the Court under its ordinary jurisdiction. " Liquidator" includes an Official Receiver when acting as Liquidator. (6.) In the application of these Rules to any Court other than the High Court, the Eegistrar may, under the general or special directions of the Judge, hear ahd determine any application or matter which under the Acts and these Rules may be determined in Chambers. 3. — (1.) The forms in the Appendix, where applicable, and where they are Use of forms not applicable forms of the like character, with such variations as circum- in Appendix, stances may require, shall be used. Where such forms are applicable any costs occasioned by the use of any other or more prolix forms shall be borne by or disallowed to the party using the same, unless the Court shall other- wise direct. (2.) Provided that the Board of Trade taay frOm time to time alter any forms which relate to matters of an administrative and not of a judicial character, or substitute new forms in lieu thereof. Where the Board of Trade alters any form, or substitutes any new form in lieu of a form pre- scribed by these Eules, such altered or substituted form shall be published in the London Gazette. 3b 738 COMPANIES (winding-up) bulbs, 1890. Eule 4. Proceedings in High Court. Proceedings iu Courts other than High Court. Adjourn- ment from Chambers to Court and vice versd. Proceedings) how intituled. Forms 1 and 2 Transfer by Judge of High Court, [s; 3 of Act of 1890.] ]form 3. Transfer by .Judge of Court other than High Court. Form 3. Notice to Official Receiver. 'I'ransmi.ssion of order of ti'au.sfer, Transfer of Official Receiver's duties. CoUBT AND Chambers. 4. In the High Court — (1.) All matters and applications to the Court or a Judge in the winding up of a company as to which the procedure and practice is not altered by the Companies (Winding-up) Act, 1890, and these Eules, and which according to the practice of the Court or the directions of the Judge have been heard in Court or in Chambers, shall continue to be so heard. (2.) Subject to the provisions of the Companies (Winding-up) Act, 1890, and these Eules, applications to the Court under the said Act and these Eules shall be heard in Court or in Chambers according as the Judge shall by any general or special directions order. Provided that appeals to the Court from the Official Eeceiver and Board of Trade and Liqui- dator shall be brought by notice of motion to the Court pursuant to the Eules of the Supreme Court with reference to motions. 5. In Courts other than the High Court the following matters and appli- cations to the CoTlrt shall be heard in open Court : — (a.) Petitions. (5.) Public examinations. (c.) ApplicatioDs under section 167 of the Companies Act, 1862. (d.) Applications to rectify the Eegister. (e.) Appeals from the Official Eeceiver and Board of Trade. (/.) Appeals from any decision or act of the Liquidator. (g.) Applications relating to the admission or rejection of proofs, (/j.) Proceedings under section 10 of the Companies (Winding-up) Act, 1890. 6. Subject to the provisions of the Acts and Eules, any matter or applica- tion in a Court other than the High Court may at any time, if the Judge thinks fit, be adjourned from Chambers to Court or fi'om Court to Chambers ; and if all the contending parties require any matter or application, to be adjourned from Chambers into Court it shall be so adjourned. Peocebdings. 7. — (1.) Every proceeding in Court or in Chambers under the Acts shall be dated, and shall be intituled " In the matter of the Companies Acts, 1862 to 1890," with the name of the Court in which it is taken, and of the Com- pany to which it relates. Numbers and dates may be denoted by figures. (2.) The first proceeding in -every winding-up matter shall have a dis- tinctive number assigned to it by the proper officer, and all subsequent proceedings in the same matter shall bear the same number. 8. A Judge of the High Court to whom the exercise of the jurisdiction to wind up companies is assigned may at any time, for good cause shewn, order the proceedings in any Court other than the High Court to be trans- ferred to the High Court, or any proceedings in the High Court to be trans- ferred from the High Court to any other Court. Where the transfer is to the High Court, the winding up shall be assigned to the Judge who made the order of transfer. 9. The Judge of any Court having jurisdiction to order the winding up of a company other than the High Court or a Palatine Court may at any time, for good cause shewn, order any proceedings which have been commenced or are pending in his Court to be transferred to any Court which has juris- diction to order the winding up of a company not being the High Court or a Palatine Court. 10. Notice of an application for a transfer of proceedings shall be served on the Official Eeceiver before the hearing thereof. 11. When an order of transfer has been made the person on whose appli- cation the order is made shall, if the transfer is to the High Court, lodge with the Chief Clerk of the Judge to whom the winding up becomes assigned, and if the transfer is to any other Court with the Eegistrar of that Court, a sealed copy of the order of transfer. 12. Where the proceedings in any winding up are transferred by any Court, the Official Eeceiver of the Court to which such proceedings are transferred shall become the Official Eeceiver in the winding-up in place of the Official Eeceiver of the Court from which the proceedings are transferred. COMPANIES (winding-up) RULES, 1890. Y39 13. Where any proceedings are transferred from a Court to any other Rule 13. Court, the records of proceedings shall, if the transfer is to the High Court, be transmitted to the Chief Clerk of the Judge to whom the winding up Transmission becomes assigned, and if the transfer is to any other Court to the Registrar "^ records. of that Court. 14. As soon as the Chief Clerk of the Judge (if the transfer is to a Judge Notice of of the High Court) or the Registrar of the Court (if the transfer is to any transfer to other Court) has received the records of proceedings from the Court from Official which the transfer is made he shall give notice of the transfer to the Oflcial Receiver Receiver of the Court to which the proceedings are transferred, who shall and Board give notice of the transfer to the Board of Trade. When a winding-up is °*"''''^*''- transferred from one Court to another, it shall receive a new distinctive ^'"'™ number. 15. Whenever the Lord Chancellor, by order under his hand, shall exclude Transfer of any County Court from having jurisdiction under the Acts, or shall attach jurisdiction the district or any part of the district of a County Court to the High Court, of County or any other County Court, or shall detach the district or any part of the Court and district of any County Court from the district and jurisdiction of the High pending Court, any winding-up business pending in the Court or district to which business, the order relates shall become transferred to such Court as shall be men- tioned for the purpose in the order ; and, thereupon, the Rules as to transfer of proceedings shall apply to the transfer of such pending proceedings in all respects as if the proceedings had been transferred by order of a Court having power to transfer proceedings. Witnesses and Depositions. 16. If the Court or the officer of the Court before whom any examination Shorthand is under the Acts and these Rules directed to be held shall in any case-, and notes, &o. at any stage in the proceedings, be of opinion that it would be desirable Forms 5, 6, 7. that a person (other than the person before whom an examination is taken) should be appointed to take down the evidence of any person examined under the Acts and Rules in shorthand or otherwise, it shall be competent for the Court or officer aforesaid to make such appointment; provided that where the application is made by the Official Receiver he shall nominate a person for the purpose, and the person so nominated shall be appointed, unless the Court or officer holding the examination shall otherwise order. Every person so appointed shall be paid a sum not exceeding one guinea a day, and where the Court appoints a shorthand writer a sum not exceeding 8d. per folio of 90 words for any transcript of the evidence that may be required, and such sums shall be paid by the party at whose instance the appointment was made, or out of the assets of the Company as may be directed by the Court. 17. — (1.) If a person examined before a Registrar or other officer of the Committal of Court who has no power to commit for contempt of Court, refuses to answer contumacious to the satisfaction of the Registrar or officer any question which he may witness, allow to be put, the Registrar or officer shall report such refusal to the '^'"'m 39. Judge, and upon such report being made the person in default shall be in the same position and be dealt with in the same manner as if he had made default in answering before the Judge. (2.) The report shall be in writing, but without affidavit, and shall set forth the question put, and the answer (if any) given by the person examined. (3.) The Registrar or officer shall, before the conclusion of the examination at which the default in answering is made, name the time when and the place where the default will be reported to the Judge ; and upon receiving the report the Judge may take such action thereon as he shall think fit. If. the Judge is sitting at the time when the default in answering is made, such default may be reported immediately. Sittings or Couets. 18. Subject to the orders of the Lord Chancellor, the place of sitting of Place of each County Court having jurisdiction under the Acts shall, for the purpose sitting of of such jurisdiction, be the town in which the Court holds its sittings for County Court. 3b2 Eule 19. Times for holding Courts otiier than tho High Court. Duties of bailiff, &c. Service. 740 COMPANIES (witolNG-UP) EDLES, 1890. tlio general business of the Court, under the provisions of the Cotrnty Courts - Act, 1888. 19. Subject to the provisions of the Acts, the times of the sitting of each Court other than the High Court in matters of the winding up of companies shall be those appointed for the transaction of the general business of the Court, unless the Judge of ahy such Court shall otherwise order. SEttTiCB AND Execution of Peocbss. 20. — (1.) It shall be the duty of the high bailiff of a County Court to serve such orders, summonses, petitions, and notices as the Court may require him to serve ; to execute warrants and other process ; to attend any sittings of the Court (but not sittings in Chambers) ; and to do and perform aU such things as may be required of him by the Court. (2.) But this Eule shall not be construed to require any order, summons, petition, or notice to be served by a bailiff or officer of such Court which is not specially by the Acts or Eules required to be so served, unless the Court in any particular proceeding by order specially so directs. 21. — (1() All notices and other documents for the service of which no special mode is directed may be sent by prepaid post letter to the last known address of the person to be served therewith ; and the notice or document shall be considered as served at the. time that the same ought to be delivered in the due course of post by the post-ofBce, and notwithstanding the same may be returned by the post-ofBce. Taxation of costs payable by or to Official Receiver or Liquidator or by company. Notice of appointment. Lodgment of bill. Copy of bill to be furnished. Applicsltions for costs. Certificate of taxation. Form 10. Taxation op Costs. 22. The previsions of the following Eules numbered 23 to 30 shall apply to the taxation and allowance of costs payable by or to the Official Eeceiver or Liquidator or which are to be paid out of the assets of the company. 23. Every person whose bill or charges is or are to be taxed shall in all oases give not less than four days' notice of the appointment to tax the same to the Official Eeceiver and to the Liquidator (if any). 24. The bill or charges, if incurred prior to the appointment of a Liqui- dator, shall be lodged with the Official Eeceiver, and if incurred after the appointment of a Liquidator, shall be lodged with the Liquidator, three clear days before the application for the appointment to tax the same is made. The Official Eeceiver or the Liquidator, as the case may be, shall forthwith, on receiving notice of taxation, lodge such bill or charges with the proper Taxing Officer. 25. Every person whose bill or charges is or are to be taxed shall, on application either of the Official Eeceiver or the Liquidator, furnish a copy of his bill of charges so to be taxed, on payment at the rate of 4d. per foKo, which payment shall be charged on the assets of the Company. The Official Eeceiver shall call the attention of the Liquidator to any items which, in his oJ)inion, ought to be disallowed or reduced, and may attend or be represented on the taxation. 26. Where any party to, or person affected by, any proceeding desires to make an application for an order that he be allowed his costs, or any part of them, incident to such proceedings, and such application is not made at the time of the proceeding — (1.) Such party or person shall serve notice of his intended application on the Official Eeceiver, and, if a Liquidator has been appointed, on the Liquidator. (2.) The Official Eeceiver and Liquidator may appear on such appKcation and object thereto. (3.) No costs of or incident to such application shall be allowed to the applicant, unless the Court is satisfied that the application could not have been made at the time of the proceeding. 27. Upon the taxation of any bill of costs, charges, or expenses being com- pleted, the Taxing Officer shall issue to the person presenting such bill for taxation his certificate of taxation. The bill of costs, charges, and expenses shall be filed. COJIPANIES (winding-up) RULES, 1890. 741 28. Every Taxing Officer shall keep a register of all bills taxed by bim Rule 28. in windings-up under these Eules, and shall, within fourteen days after the r ; ~ 31st day of October in each year, make a return to the Board of Trade of ?.|f' ^.'•'^" ? all bills taxed by him during the twelve months preceding such 31st day 5, a a i i of October. ' «■ i' s Forms9andll. 29. Before the bill or charges of any solicitor, manager, accountant, Certificate auctioneer, broker, or other person employed by an OfSoial Eeceiver or of employ- Liquidator, is or are taxed, a certificate in writing, signed by the Official ment. Eeceiver or Liquidator, as the case may be, shall be produced to the Taxing Officer, setting forth whether any, and if so what, special terms of re- muneration have been agreed to, and in the case of the bill of costs of a solicitor, a copy of the resolution or other authority sanctioning the employment. 30. — (1.) Where any bill of costs, charges, fees, or disbursements of any Review of solicitor, manager, accountant, auctioneer, broker, or other person has been taxation at taxed by a Eegistrar of a Court other than the High Court, the Board of instance of Trade may require the taxation to be reviewed by a Taxing Master of the ;?°*J^ "' Chancery Division of the High Court. * (2.) In any case in which the Board of Trade require such a review of taxation as is above mentioned they shall give notice to the person whose bill has been taxed, and shall apply to the Taxing Master of the Chancery Division of the High Court to appoint a time for the review of such taxation, and thereupon such Taxing Master shall appoint a time for the review of, and shall review, such taxation and certify the result thereof. The Board of Trade shall give to the person whose bill of costs is to be reviewed notice of the time appointed for the review. (3.) Where any such review of taxation as is above mentioned is required to be made by a Taxing Master of the Chancery Division of the High Court, the Eegistrar whose taxation is to be reviewed shall forward to the said Taxing Master the bill which is required to be reviewed. (4.) The Board of Trade may appear upon the review of the taxation ; and if, upon the review of the taxation, the bill is allowed at a lower sum than the sum allowed on the original taxation, the amount disallowed shall (if the bill has been paid) be repaid to the Official Eeceiver, or the Liquidator, or other person entitled thereto. The certificate of the Taxing Master shall in every case of a review by him under this Rule be a sufficient authority to entitle the person to whom the amount disallowed ought to be repaid to demand such amount from the person liable to repay the same, (5.) There shall be allowed to the person whose bill is reviewed such costs of and incidental to his appearance on the review as the Taxing Master of the High Court shall think proper, and such costs shall be paid to such person out of the assets of the company : Provided that the costs of the attendance of a principal shall not be allowed if in the opinion of the Taxing Master he could have been sufficiently represented by his London agent. Costs payable out of the Assets op the Company. 31. The assets of a company which is being wound up, r.emaining after Costs payable payment of the fees and actual expenses incurred in realising or getting in out of the the assets, shall, subject to any Order of the Court, and, if the winding-up assets. is in the Stannaries Court, subjieot to the provisions of the Stannaries Act, 1887, be Kable to the following payments, which shall be made in the follow- ing order of priority, namely :— First. The taxed costs of the petition, including the taxed costs of any person appearing on the petition whose costs are allowed by the Court : Next. The remuneration of the special manager (if any) : „ The costs and expenses of any person who makes, or concurs in making, the company's statement of affairs : „ The taxed charges of any shorthand writer appointed to take an examination: Provided that where the shorthand writer is appointed at the instance of the Official Eeceiver the cost of the 742 COMPANIES (winding-up) rules, 1890. Rule 32. shorthand notes shall he deemed to he an expense incurred by '-.- the Official Eeceiver in getting in and realising the assets of the Company : Next. TheLiquidator's necessary disbursementSjOther than actual expenses of realisation heretofore provided for : „ The costs of any person properly employed by the Liquidator with the sanction of the committee of inspection : „ Tlie remuneration of the Liquidator : The actual out-of-pocket expenses necessarily incurred by the committee of inspection, subject to the approval of the Board of Trade. Form of petition. Forms 12 and 13. Advertise- ment of petition. Form 16. Official Ebceivee as Provisional Liquidatob. Appoint-. 32. — (1.) After the presentation of a petition, upon the application of a ment of creditor, or of a contributory, or of the Company, and upon proof by affidavit Provisional of sufficient grounds for the appointment of the Official Receiver as Provisional Liquidatof. Liquidator, the Court may, if it thinks fit, and upon such terms as may be just, make such appointment. Form 21. (2.) An order appointing the Official Receiver to be Provisional Liquidator prior to the making of a winding-up order, shall bear the number of the petition in respect of which it is made, and shall state the nature and short description of the property of which the Official Eeceiver is ordered to take possession. Petition. 83. Every petition for the winding up of any company by the Court, or subject to the supervision of the Court, shall be in the Forms Nos. 12 and 13 in the Appendix, with such variations as circumstances may require. 34. Every petition shall be advertised seven clear days before the hearing, as follows : — (1,) In the case of a company whose registered office, or if there shall be no such office, then whose principal or last known principal place of business is or was situate within ten miles of the principal entrance of the Royal Courts of Justice, once in the London Gazette, and once at least in one London daily morning newspaper, or in such other news- paper as the Court directs. (2.) In the case of any other company, once in the London Gazette, and once at least in one local newspaper circulating in the district where such registered office, or principal or last known place of business, as the case may be, of such company is or was situate. The advertisement shall state the day on which the petition was pre- sented, and the name and address of the petitioner, and of his solicitor and London agent (if any). 35. Every petition shall , unless presented by the company, be served at the registered ofBce, if any, of the company, and if there is no registered office, then at the principal or last known principal place of business of the com- pany, if any'such can be found, upon any member, officer, or servant of the company there, or in case no such member, officer, or servant can be found there, then by being left at such registered office or principal place of business, or by being served on such member or members of the company as the Court may direct; and every petition for the winding up of a com- pany, subject to the supervision of the Court, shall also be served upon the Liquidator (if any) appointed for the purpose of winding up the affairs of the company. Vcuifirntion B6. Every petition for the winding-up of any company by the Court, or of i)etition. Subject to the supervision of the Court, shall be verified by an affidavit Form 17. rofiirring tlieroto. Such affidavit shall be made by the petitioner, or by one of the petitioners, if more than one, or, in case the petition is presented by a company, by some director, secretary, or other principal officer thereof, and shall bo sworn after and filed within four days after the petition is pre- Service of petition. Forms 14 and 15. COMPANIES (winding-up) eules, 1890. 743 sented, and such affidavit shall be sufficient prima facie evidence of the Rule 37, statements in the petition. 37. Every contributory or creditor of the company shall be entitled to be Copy of peti- furnished, by the solicitor of the petitioner, with a copy of the petition, tioa to be vfithin 24 hours after requiring the same, on paying the rate of 4c?. per folio furnished to of 72 words for such copy. creditor or coatributory. OfiDEK TO Wind up a Compant, 38. An order to wind up a company shall contain at the foot thereof a Form and notice stating that it will be the duty of the person who is at the time contents, secretary or chief officer of the company, and of such of the persons who are Forms 18 and liable to make out or concur in making out the company's statement of 19- affairs as the Official Eeceiver may require, to attend on the Official Receiver forthwith on the service thereof at the place mentioned therein. 39. Three copies of every order to wind up a company, and order for the Transmis- appointment of the Official Eeceiver as Provisional Liquidator of a company, sion of copy- sealed with the seal of the Court, shall forthwith be sent by post or other- to Official wise by the Eegistrar to the Official Eeceiver. Receiver. 40. The Official Eeceiver shall cause a copy of the order to wind up the Service of company sealed with the seal of the Court to be served upon the secretary order. or other chief officer of the company at the registered office of the company, or upon such other person or persons, or in such other manner as the Court may direct. 41. — (1.) When an order to wind up a company is made the Official Notice of Eeceiver shall forthwith give notice thereof to the Board of Trade, who shall order, forthwith cause such notice to be gazetted. (2 ) The Official Eeceiver shall forthwith send notice thereof to such local Form 20. paper as the Board of Trade may from time to time direct, or, in default of such direction, as he may select. Special Manager, 42. — (1.) An application by the OfiSoial Eeceiver for the appointment of Appointment a special manager shall be supported by a report of the Official Eeceiver, of special which shall be placed on the file of proceedings, and in which shall be stated ™^°^S"]; the amount of remuneration which, in the opinion of the Official Eeceiver, f -foqo'n" ought to be allowed to the special manager. No affidavit by the Official ° '■' Eeceiver in support of such an application shall be required. (2.) The remuneration of the special manager shall, unless the Judge . otherwise in any special case directs, be stated in the order appointing him. (3.) A copy of the order appointing a special manager shall be transmitted to the Board of Trade by the Official Eeceiver. First Meetings of Creditoes and Contkibliokies. 43. — (1.) The Official Eeceiver shall give to each of the directors and other Notice of officers of the company who in his opinion ought to attend the first meetings first meeting of creditors and contributories seven days' notice of the time and place to officers of appointed for each meeting. The notice may be either delivered personally company. or sent by prepaid post letter, as may be convenient. It shall be the duty [s- 6 of Act of every director or officer who receives notice of such meeting to attend if 2,' ■'^^^'^■J, so required by the Official Eeceiver. ^"''""^ ^^' ^^■ 44. The Official Eeceiver shall fix the days for the first meetings of creditors Notice of and contributories, and shall forthwith give notice thereof to the Board of first meetings Trade, who shall gazette the same. Jf Board of 45. Where practicable, and unless the Court specially directs to the con- Trade. trary, the first meetings of creditors and contributories shall not be held Times for until after the statement of affairs prescribed by section 7 of the Companies holding first (Winding-up) Act, 1890, has been submitted to the Official Eeceiver. If an meeting, extension of time for summoning the meetings or either of them is required, an application for extension of time may be made by the Official Eeceiver eas parte on a report without any affidavit. Rule 46. Notice to oontributoi'ies, Form 23. Meetings for ascertaining wislies of creditors and contributorjes, Form 31. [s. 13 of Act of 1890.1 Meetings subsequent to the first meetings. Form 30. Notices of general meetings. Form 26. Proof of notice. Forms 27 and 28. Costs of calling meeting. Chairman of general meetings. Form 25. Votes at meetincrs. Copy of resolution for Chief Clerk or Eegistrar. Form 32. Non-reception of notice by a creditor. Adjournment. Form 29. Quorum. 744 COMPANIES (winding-up) eules, 1890. 46. Notice of the first meeting of contributories shall be sent to every person who appears from the company's books or otherwise to be a contri- butory of the company. General Meetings of Ceeditoes aud Contbibutokibs. 47. Subject to the provisions of the Companies (Winding-up) Act, 1890, and to the control of the Court, the Liquidator may from time to time, when he thinks expedient, summon, hold, and conduct meetings of the creditors or contributories for the purpose of ascertaining their wishes in all matters relating to the winding up. 48. Meetings subsequent to the first meetings of creditors and contri- butories shall be summoned by sending notices to them. The notice to each creditor shall be sent to the address given in his proof, or if he has not proved, to the address given in the statement of affairs of the company, or to such other address as may be known to the person summoning the meet- ing. The notice to each contributory shall be sent to the address mentioned in the company's books as the address of such contributory, or to such other address as may be known to the person summoning the meeting. 49. The notices of general meetings to be issued to creditors and contribu- tories by the OflBcial Eeceiver or Liquidator shall, where no special time is prescribed, be sent off not less than seven days before the day appointed for the meeting. 50. A certificate by the Ofiicial Receiver or other ofScer of the Court, or by the clerk of any such person, or an afSdavit by the Liquidator, or his solicitor or the clerk of either of such persons, that the notice of any meeting has been duly posted, shall be suflScient evidence of such notice having been duly sent to the person to whom the same was addressed. 51. The costs of summoning a meeting of creditors at the instance'of any person other than the OfiBcial Eeceiver or Liquidator shall be paid by the person at whose instance it is summoned, who shall before the meeting is summoned deposit with the Official Eeceiver or Liquidator (as the case may be) such sum as may be required by the Official Eeceiver or Liquidator as security for the payment of such costs. The said costs shall be repaid out of the assets of the Company, if the creditors or contributories, as the case may be, shall by resolution so direct. 52. Where a meeting is summoned by the Oflcial Eeceiver he or some one nominated by him shall be chairman of the meeting. At every other meeting of creditors and contributories (other than meetings to which the schedule of the Companies (Winding-up) Act, 1890, applies) the chairman shall be such person as the meeting by resolution shall appoint. 53. The provisions of section 91 of the Companies Act, 1862, relating to votes of creditors and contributories at meetings summoned under that section shall apply to the voting of creditors and contributories at meetings held under the Companies (Winding-up) Act, 1890, and these Eules. 54. The Official Eeceiver, or, as the case may be, the Liquidator, shall send in the High Court to the Chief Clerk of the Judge to whom the winding up of the Company is assigned, and in any other Court to the Eegistrar, a copy, certified by him, of every resolution of a meeting of creditors or contributories. 55. Where a meeting of creditors or contributories is summoned by notice, the proceedings and resolutions at the meeting shall, unless the Court other- wise orders, be valid, notwithstanding that some creditors or contributories may not have received the notice sent to them. 56. Where a meeting of creditors is adjourned, the adjourned meeting shall be held at the same place as the original place of meeting, unless in tho resolution for adjournment another place is specified, or unless the Court otliorwiso orders. 57. In calculating a quorum at a creditors' meeting, those persons only who are entitled to vote shall be reckoned. COMPANIES (winding-up) eules, 1890. 745 Rule 58. Statement of ArrAiES. 58. — (1.) Every person who under section 7 of the Companies (Winding- Preparation up) Act, 1890, has Been required by the OfBoial Eeoeiver to submit and of statement verify a statement as to the affairs of the company, shall be furnished by of affairs, the OfBcial Eeceiver with forms and instructions for the preparation of the [s. 7 of Act statement. The statement shall be made out in duplicate, one copy of which of 1890.] shall be verified by afSdavit. The Ofiflcial Eeceiver shall place upon the file ^o'™ ^^■ of proceedings in the winding-up the verified statement of affairs. (2.) The Oflcial Eeceiver may from time to time hold personal interviews with such person or persons, for the purpose of investigating the Company's affairs ; and it shall be the duty of every such person to attend on the OfScial Eeceiver at such time and place as the OfScial Eeceiver may appoint, and give the Official Eeceiver all information that he may require. 59. Where any person requires any extension of time for submitting the Extension of statement of affairs, he shall apply to the Of&cial Eeceiver, who may, if he time for sub- thinks fit, give a written certificate extending the time, which certificate mitting state- shall be filed with the proceedings in the winding-up, and shall render an ™'°' °^ affairs, application to the Court unnecessary. 60. After the statement of affairs of a company has been submitted to the Information Official Eeceiver it shall be the duty of each person who has niade it, if and subsequent when required, to attend on the OfScial Eeceiver and answer all such ques- *» statement tions as may be put to him, and give all such further information as may "f affairs. be required of him by the Official Eeceiver in relation to the Statement of Affairs. 61. Any default in complying with the requirement of section 7 of the Default. Companies (Winding-up) Act, 1890, may be reported by the Official Eeceiver to the Court. 62. A person who ig required to make or concur in making any statement Expenses of of affairs of a company shall before incurring any costs or expenses in and statement of about the preparation and making of the statement apply to the Official affairs. Eeceiver for his sanction, and submit a statement of the estimated costs and expenses which it is intended to incur ; and no person shall be allowed out of the assets of the Company any costs or expenses which have not before being incurred been sanctioned by the Official Eeceiver. Appointment of Liquidatob. 63. — (1.) As soon as possible after the first meetings of creditors and Appointment contributories have been held the Official Eeceiver, or the chairman of the of Liquidator meeting, as the case may be, shall report the result of each meeting to the °'° "?<"■* <>/ Court. meetmgs of (2.) Upon the result of the meetings of creditors and contributories being ™«di ors and reported to the Court, the Court may, if the creditors and contributories j,^j.^ gg are unanimous in their determination, upon the application of the Official Eeceiver, forthwith make the appointments necessary for giving effect to such determination. In any other case the Court shall, on application by Form 34. the Official Eeceiver, fix a day for considering the determinations of the meetings, deciding differences (if any), and making such appointments and orders as shall be necessary. (3.) When a time and place have been fixed for the consideration of the determinations of the meetings such time and place shall be advertised by the Official Eeceiver in such manner as the Court shall direct, but so that the first or only advertisement shall be published not less than seven days before the day so fixed. (4.) Upon the consideration of the determinations of the meetings the Court shall hear the Official Eeceiver or any creditor or contributory. (5.) If a Liquidator is appointed copy of the order appointing him shall For™ 34, be transmitted to the Board of Trade by the Official Eeceiver, and the Board of Trade shall as soon as the Liquidator has given security, cause notice of the appointment to be gazetted. The expense of gazetting notice of the 746 COMPANIES (winding-up) eules, 1890. Bule 6L Advertisement of appoiut- luent. Form 36. Death, &c., of Liquidator. Style of Official Receiver when he is Liquidator. Standing security to Board of Trade. Form 35. Failure to give or keep up security. appointment shall be paid by the Liquidator, but may be charged by him on the assets of the Company. 64. Every appointment of a Liquidator or committee of inspection shall be advertised by the Liquidator in such manner as the Court directs imme- diately after the appointment has been made and the Liquidator has given the required security. 65. In case of the death, removal, or resignation of a Liquidator another may be appointed in his place in the same manner as directed in the case of a first appointment, and the Official Eeceiver shall on the request of not less than one-tenth in value of the creditors or contributories summon meetings for the purpose of determining whether or not the vacancy shall be filled. 66. When the Official Eeceiver is Liquidator of a Company he shall be styled " Official Eeceiver and Liquidator." Secdeity by Liquidatoe oe Special Managbe. 67. In the case of a Special Manager or Liquidator other than the Official Eeceiver the following Kules as to security shall be observed, namely : — (1.) The security shall be given to such officers or persons and in such manner as the Board of Trade may from time to time direct. (2.) It shall not be necessary that security shall be given in each separate winding-up ; but security may be given either specially in a particular winding-up or generally to be available for any winding-up in which the person giving security may be appointed either as Liquidator or Special Manager. (3.) The Board of Trade shall fix the amount and nature of such security, and may from time to time, as they think fit, either increase or diminish the amount of special or general security which any person has given. (4.) The certificate of the Board of Trade that a Liquidator or Special Manager has given security to their satisfaction shall be placed on the file of proceedings. (5.) The cost of furnishing the required security by a Liquidator or Special Manager shall be borne by him personally, and shall not be charged against the assets of the Company as an expense incurred in the winding-up. 68. — (I.) If a Liquidator or Special Manager fails to give the required seciirity within the time stated for that purpose in the order appointing him or any extension thereof, the Official Eeceiver shall report such failure to the Court, who shall thereupon rescind the order appointing the Liquidator or Special Manager. (2.) If a Liquidator or Special Manager fails to keep up his security, the OfBoial Receiver shall report such failure to the Court, who may thereupon remove the Liquidator or Special Manager and make such order as to costs as the Court shall think fit. Report of Official Receiver to be filed, [s. 8 of Act of 1S90.] Appointment of time for consideration of report. Consideration of report. Public Examination. 69. — (1.) A report made by the Official Eeceiver pursuant to section 8 of the Companies (Winding-up) Act, 1890, shall state in a narrative form the facts and matters which the Official Eeceiver desires to bring to the notice of the Court, and his opinion as required by section 8 of the Companies (Winding-up) Act, 1890. 70. The Official Eeceiver may apply to the Court to fix a day for the con- sideration of the report, and on such application the Court shall appoint a dav on which tho report shall be considered. 71. The considiiration of the report shall be before the Judge of the Court personally in Clinmbei-s, and the Official Eeceiver shall personally, or by counsel or solicitor, attend the consideration of the report, and give the C.ourt any further information or explanation with reference to the matters stati'd ill the report which the Court may require. 72. If the Court makes an order pursuant to sub-section 9 of section 8 of COMPANIES (winding-up) RULES, 1890. 747 the Companies (Winding-up) Act, 1890, directing any person to attend for Rule 73. public examination, the examination shall be held in open Court- (a.) If the winding up of the company is in the High Court before such Order for one of the officers of the Court mentioned in section 8 of the Companies public exami- (Winding-up) Act, 1890, as the Court may direct, and in the absence of nation, any such direction before a Registrar in Bankruptcy of the High Court. I'orm 37. (i.) If the ■winding up of the company is in a County Court before the Judge of the Court, or before a Registrar of the Court if such Registrar is also a District Registrar of the High Court named by the Lord Chan- cellor for the purpose of holding public examinations under the Acts, or before any such District Registrar. (c.) If the winding up of the company is in the Stannaries Court, before the Vice Warden. 73. Upon an order directing a person to attend for public examination Application being made, the Official Receiver shall apply for the appointment of a day for day for on which the public examination is to be held. holding 74. A day and place shall be appointed for holding the public examination, examination. and notice of the day and place so appointed shall be given by the Official Appointment Receiver to the person who is to be examined, by sending such notice in a of time and registered letter addressed to his usual or last known address. place for 75. The Official Receiver shall give notice of the order appointing the time public exami- and place for holding a public examination to the creditors and contribu- nation, tories by advertising the order in such newspapers as the Board of Trade V"™^ 38. from time to time direct, or in default of any such direction as the Official Notice of Receiver thinks fit, and shall also forward notice of the order to the Board public exami- of Trade to be gazetted. nation to 76. If any person who has been directed by the Court to attend for public creditors and examination fails to attend at the time and place appointed by the order for contnbutones. holding or proceeding with the same, and no good cause is shewn by him for Default in such failure, or if before the day appointed for the examination the Official attending. Receiver satisfies the Court that such person has absconded, or that there is ^oi™ 41- reason for believing that he is about to abscond with the view of avoiding examination, it shall be lawful for the Court, upon its being proved to the satisfaction of the Court that the order for attendance at the public examina- tion was duly served, without any further notice to issue a warrant for the arrest of the person required to attend, or to make such other order as the Court shall think just. 77. The notes of every public examination held pursuant to the Companies Notes of ex- (Winding-up) Act, 1890, shall, after being signed as required by the said amination to Act, be filed with the proceedings. ^^ fi^^"^- ^ ^ Form 40. Proceedings against Delinquent Dihectoes, Pbomotees, and Opficebs. 78. An application under section 10 of the Companies (Winding-up) Act, Application 1890, shall in any Court other than the High Court be made by motion to against delin- the Court. In the High Court the application shall be made in accordance quent direc- with the practice heretofore observed with reference to applications under *°''^' officers, section 165 of the Companies Act, 1862. Where the application is made by r^^rTf '"'''• the Official Receiver or Liquidator he may make a report to the Court L^"j^gg° '^' stating any facts and information on which he proceeds which are verified ^^^.^ 42. by affidavit, or derived from sworn evidence in the matter. Where the application is made by any other person it shall be supported by affidavit. 79. Where the application is made by motion, notice of the intended Notice of motion shall be served on every person against whom an order is sought, not application, less than eight days before the day named in the notice for hearing the motion. A copy of every report and affidavit intended to be used in support of the motion shall be served on every person to whom notice of motion is given not less than four days before the hearing of the motion. Payments out of Bank of Payments into and out of a Bank. England. 80. All payments out of the Companies Liquidation Account shall be of 1890.] made in such manner as the Board of Trade may from time to time direct. Special bank 81. Where the Liquidator is authorised to have a special banking account account. 748 COMPANIES (winding-up) eules, 1890, Rule 82, he shall forthwith pay all moneys received by him into that account to the credit of the Liquidator of the company. All payments out shall be made by cheque payable to order, and every cheque shall have marked or written on the face of it the name of the company, and shall be signed by the Liquidator, and shall be counter-signed by at least one member of the com- mittee of inspection, and by such other person, if any, as the committee of inspection may appoint. 82. Where application is made to the Board of Trade to authorise the Liquidator to make his payments into and out of a special bank account, the Board of Trade may grant such authorisation for such time and on such terms as they may think fit, and may at any time order the account to be closed if they are of opinion that the account is no longer required for the purposes mentioned in the application. Application by committee of inspection and authority for special banking account. Forms 43 and 44, Liquidator to settle list of contributorifis. [s. 13 of Act of 1890; ss. 98 and 99 of Act of 1862.] Form 45. Appointment of time and place for settlement of list. Form 46. Settlement of list of con- tributories. Form 47. Notice to contributories. Forms 48, 50, and 111. Application to the Court to vary the list, [s. i 3 and .s. 24 of Act of 1890.] Variation of or addition to list of con- tributories. Forms 49, 52. Collection and distribution of company's assets by Liquidator, [s. 13 of Act of 1890; s. 98 of Act of 1862.] Power of Liquidator, [s. 13 of Act of 1890.] List of Conthibutoeips. 83. The Liquidator shall with all convenient speed after his appointment settle a list of the contributories of the company,, and shall appoint a day for that purpose. The list of contributories shall contain a statement of the address of, and the number of shares or extent of interest to be attributed to each contributory, and shall distinguish the several classes of contributories. As regards representative contributories the Liquidator shall observe the requirements of section 99 of the Companies Act, 1862. 84. The Liquidator shall give notice in writing of the time and place ap- pointed for the settlement of the list of contributories to every person whom he proposes to include in the list, and shall state in the notice to each person in what character and for what number of shares or interest he proposes to include such person in the list. 85. On the day appointed for settlement of the list of contributories, the Liquidator shall hear any person who objects to being settled as a contri- butory, and after such hearing shall finally settle the list, which when so settled shall be the list of contributories of the company. 86. The Liquidator shall forthwith give notice to every person whom he has finally placed on the list of contributories, stating in what character and for what number of shares or interest he has been placed on the list, and in the notice inform such person that any application for the removal of his name from the list or for a variation of the list, must be made to the Court by summons within 21 days from the date of the service on the contributory or alleged contributory of notice of the fact that his name is settled in the list of contributories. 87. Subject to the power of the Court to extend the time or to allow an application to be made notwithstanding the expiration of the time limited for that purpose, no application to the Court by any person who objects to the list of contributories as finally settled by the Liquidator shall be enter- tained after the expiration of 21 days from the date of the service on such person of notice of the settlement of the list. 88. The Liquidator may from time to time vary or add to the list of con- tributories, but any such variation or addition shall be made in the same manner in all respects as- the settlement of the original list. Collection and Distkibution of Assets. 89. The duties imposed on the Court by section 98 of the Companies Act, 1862, with regard to the collection of the assets of the company and the application of the assets in discharge of the company's liabilities shall be discharged by the Liquidator as an oflScer of the Court subject to the control of the Court. 90. For the purpose of the discharge by the Liquidator of the duties impo.sod by section 98 of the Companies Act, 1862, as varied by section 13 of the Companies (Winding-up) Act, 1890, and the last preceding Eule, the Liquidator shall for the purpose of acquiring or retaining possession of the property of the company, be in the same position as if he were a Beceiver of COMPANIES (winding-up) eulbs, 1890. 749 the property appointed by the High Court, and the Court may, on his appli- Rule 91 cation, enforce such acquisition or retention accordingly, 91. The powers conferred on the Court by section 100 of the Companies Power of Act, 1862, shall be exercised by the Liquidator. Any contributory for the Liquidator time being on the list of cohtributories, trustee, receiver, banker, or agent to require or officer of a company which is being wound up under order of the Court .) In tlio case of companies wound up voluntarily or under the super- vision of the Court, at the date of the dissolution of the company, unless at such date any funds or assets of the company remain unclaimed or COMPANIES (wiNDINa-UP) RULES, 1890. 753 undistributed in the hands or under the control of the Liquidator, or Eule 127. any person who has acted as Liquidator, in which case the winding-up — shall not be deemed to be concluded until such funds or assets have either been distributed or paid into the Companies Liquidation Account at the Bank of England. 127. — (1.) "Where a winding up of a company is not concluded within the Information year after its commencement, the statements which the Liquidator is to send by Liquidator to the Registrar of Joint Stock Companies with respect to the proceedings as to pending in and position of the liquidation shall be sent in duplicate at such intervals liquidations. and in svich form as the Board of Trade may from time to time by general f-^°' °^ IS90, order direct. In the absence of any such direction a statement shall be sent ^' '^ twice in each year, the first statement being sent at the expiration of 30 days from the termination of the first year during which the liquidation proceedings have been pending, and the succeeding statements being sent at intervals of half a year until the winding up of the company is concluded ; and each statement shall consist of a Statement of Account dated from the last Statement of Account sent in under this Rule, together with a copy of the entries in the Record Book made since such date. (2.) Where the winding up of a company has been commenced on or before the 1st day of January, 1890, and has not been concluded before the 1st day of January, 1891, the first statement which the Liquidator shall send to the Registrar of Joint Stock Companies with respect to the proceedings and position of the liquidation shall be sent in duplicate within 30 days from the 1st January, 1891, or within such extended period as the Board of Trade or the Court may in any particular case for special reasons sanction. Unclaimed Funds and Undistbibuted Assets in the Hands of the LlQUIDATOE. 128. Every person who has acted as Liquidator of any company, whether Duty of the liquidation has been concluded or not, shall furnish to the Board of Liquidator Trade particulars of any money in his hands or under his control represent- to furnish ing unclaimed or undistributed assets of the company on the 1st January, information 1891, or subsequently, and such other particulars as the Board of Trade may *° ^"J^^'^ require for the purpose of ascertaining or getting in any money payable into ^ '''"-'<'• the Companies Liquidation Account at the Bank of England. The Board of Trade may require such particulars to be verified by affidavit. 129. — (1.) The Board of Trade may at any time order any such person to Power of submit to them an account verified by affidavit of the sums received and Board of paid by him as Liquidator of the company, and may direct and enforce an Trade to call audit of the account. fo»' verified (2.) For the purposes of section 15 of the Companies (Winding-up) Act, p°™""„'^' 1890, and these Rules, the Court (as hereinafter defined) shall have and, at *" the instance of the Board of Trade, may exercise all the powers conferred by the Bankruptcy Act, 1883, with respect to the discovery and realisation of the property of a debtor, and the provisions of Part I. of that Act with respect thereto shall, with any necessary modifications, apply to proceedings under section 15 of the Companies (Winding-up) Act, 1890. 130. Every apphcation by the Board of Trade to the Court for the purpose Applications of ascertaining and getting in money payable into the Bank of England to the Court pursuant to section 15 of the Companies (Winding-up) Act, 1890, and these for enforcing Rules shall, if the winding-up is in the High Court, or in the Stannaries Account. Court, be made to and dealt with by the Division of the High Court which for the time being exercises the bankruptcy jurisdiction of the High Court, .and if the winding-up is in the Palatine Court or a County Court to that Court, and the practice which is observed in reference to applications by the Board of Trade under section 162 of the Bankruptcy Act, 1883, shall govern and be observed in every application by the Board of Trade under the said section 15 of the Companies (Winding-up) Act, 1890, and these Rules. m i f 131. Any Liquidator whose duty it is under section 15 of the Companies ment i°nto'^^'" (Winding-up) Act, 1890, to pay into the Companies Liquidation Account at the Companies Bank of England, any money representing unclaimed or undistributed assets Liquidation of the company shall apply in such manner as the Board of Trade may Account. 3c 754 COMPANIES (winding-up) eules, 1890. Rule 132 direct to the Board of Trade for a paying-in order, which paying-in order '- shall be an authority to the Bank of England to receive the payment. [Act of 1890, 132. An application by a person claiming to be entitled to any money s. 15.] paid into the Bank of England in pursuance of section 15 of the Companies Application (Winding-up) Act, 1890, shall be made in such form and manner as the for payment Board of Trade may from time to time direct, and shall, unless the Board of out by person Trade otherwise directs, be accompanied by the certificate of the Liquidator entitled. that the person claiming is entitled, and such further evidence as the Board of Trade may direct. Transfer of 133. — (1.) For the purposes of subsection 3 of section 15 of the Companies funds to (Winding-up) Act, 1890, money at the credit of the account of the Official Companies Liquidator of any company with the Bank of England shall be deemed to be Liquidation money under the control of the Official Liquidator, and when such money Accoun . jj^g remained unclaimed or undistributed for six months after the date of receipt it shall be transferred to the Companies Liquidation Account, and the Official Liquidator and Chief Clerk of the Chancery Division of the High Court shall draw and sign such cheques or orders as may be necessary for the transfer of the money. (2.) Any application to the Board of Trade for payment out of moneys so transferred shall be signed by the Liquidator and countersigned by the Chief Clerk of the Judge of the Chancery Division to whom the winding-up is assigned. Investment of Funds. Investment 134.— (1.) Where the Committee of Inspection are of opinion that any of assets in part of the cash balance standing to the credit of the account of the Company securities, and should be invested, they shall sign a certificate and request, and the Liqui- realisation of dator shall transmit such certificate and request to the Board of Trade. (2.) Where the Committee of Inspection are of opinion that it is advisable to sell any of the securities in which the moneys of the Company's assets are invested they shall sign a certificate and request to that effect, and the Liquidator shall transmit such certificate and request to the Board of Trade. securities. Forms 83 and 84. Audit of Casli Boole. [Act of 1890, s. 20.] Form 76. Board of Trade audit Liquidators' accounts. Form 77. Liquidator riirrying on business. l''orm3 80 and ai. Accounts and Audit. 135. The Committee of Inspection shall not less than once every three months audit the Liquidator's Cash Book and certify therein under their hands the day on which the said book was audited. 186. — (1.) Every Liquidator shall, at the expiration of six months from the date of the winding-up order, and at the expiration of every succeeding six months thereafter until his release, transmit to the Board of Trade a copy of the Cash Book for such period in duplicate, together with the necessary vouchers and copies of the certificates of audit by the Com- mittee of Inspection. He shall also forward with the first accounts a sum- mary of the company's statement of affairs, in such form as the Board of Trade may direct, shewing thereon in red iuk the amounts realised, and explaining the cause of the non-realisation of such assets as may be un- realised. (2.) When the assets of the company have been fully realised and dis- tributed, the Liquidator shall forthwith send in his accounts to the Board of Trade, although the six mouths may not have expired. (3.) The accounts sent in by the Liquidator shall be certified and verified by him. 137. — (1.) Where the Liquidator carries on the business of the company, he shall keep a distinct account of the trading, and shall incorporate in the Casli Book the total weekly amount of the receipts and payments on such trading account. (2.) The trading account shall from time to time, and not less than once in every month, bo verified by affidavit, and the Liquidator shall thereupon submit such account to the Committee of Inspection (if any), or such member thereof as may be appointed by the committee for that purpose, who shall examine and certify the same. COMPANIES (winding-up) RULES, 1890. 755 138. When the Liquidator's account has been audited, the Board of Trade Rule 138. shall certify the fact upon the account, and thereupon the duplicate copy, bearing a like certificate, shall be filed with the proceedings in the winding-up. Copy "f 139.— (I.) The Liquidator shall transmit to the Board of Trade with his accounts to accounts a summary of such accounts in such form as the Board of Trade ^^ ^^'^'^■ from time to time direct, and, on the approval of such summary by the Board Summary of of Trade, shall forthwith obtain, prepare, and transmit to the Board of Trade accounts. so many printed copies thereof, duly stamped for transmission by post, and addressed to the creditors and contributories, as may be required for trans- mitting such summary to each creditor and contributory. (2.) The cost of printing and posting such copies shall be a charge upon the assets of the company. 140. Where a Liquidator has not since the date of his appointment or Affidavit of since the last audit of his accounts, as the case may be, received or paid any no receipts, sum of money on account of the assets of the company, he shall, at the time when he is required to transmit his accounts to the Board of Trade, forward to the Board an aflBdavit of no receipts or payments. 141. Upon a Liquidator resigning, or being released or removed from Proceedings on his of&ce, he shall deliver over to the OflBcial Eeceiver, or, as the case may resignation, be, to the new Liquidator, all books kept by him, and all other books, ^c., of documents, papers, and accounts in his possession relating to the oflce of liii»idator. Liquidator. The release of a Liquidator shall not take effect unless and until he has delivered over to the Official Eeceiver all the books, papers, documents, and accounts which he is by this Eule required to deliver on his release. 142. Where property forming part of a company's assets is sold by the Expenses of Liquidator through an auctioneer or other agent, the gross proceeds of the sales. sale shall be paid over by such auctioneer or agent, and the charges and expenses connected with the sale shall afterwards be paid to such auctioneer or agent, on the production of the necessary certificate of the taxing officer. Every Liquidator, by whom such auctioneer or agent is employed, shall, unless the Court otherwise orders, be accountable for the proceeds of every such sale. Books. 143. The Official Eeceiver, until a Liquidator is appointed by the Court, Record Book. and thereafter the Liquidator, shall keep a book to be called the "Eecord [^- 21 of Act Book," in which he shall record all minutes, all proceedings had and resolu- "f 1890.] tions passed at any meeting of creditors or contributories, or of the com- mittee of inspection, and all such matters as may be necessary to give a correct view of his administration of the company's affairs, but he shall not be bound to insert in the " Eecord Book " any document of a confidential nature (such as the opinion of counsel on any matter affecting the interest of the creditors or contributories), nor need he exhibit such document to any person other than a member of the committee of inspection. 144. — (I.) The Official Eeceiver, until a Liquidator is appointed by the Cash Book. Court, and thereafter the Liquidator, shall keep a book to be called the " Cash Book " (which shall be in such form as the Board of Trade may from time to time direct), in which he shall (subject to the provisions of these Eules as to trading accounts) enter from day to day the receipts and payments made by him. (2.) The Liquidator shall submit the Eecord Book and Cash Book, together with any other requisite books and vouchers, to the committee of inspection (if any) when required, and not less than once every three months. Register of EeGISTEK and File OI' PeoCBEDINGS. proceedings 145. A register shall be kept in the Chambers of the Judge of all proceed- J?^''"'i5^^' ings held there, in each matter with proper dates, so that all the proceedings y^ambers. in each cause or matter may appear consecutively and in chronological OrTers^of order, with a short statement of the questions on points decided or ruled at igg2 ,. 57 . every hearing, and no documents or proceedings are to be filed in the Chambers and 6. L V. ' of the Judge unless the Court, by any general or special order, otherwise r. 73 of directs. R. S. C, 1883.] 3 C 2 Rule 146. File of pro- ceedings. Memor.'\ndmu of advertise- ments. Form 87. Application I'ur release, [s. 22 of Act of 1890.] Forms 78 and 79. Gazetting release.. Books to be kept by officers of Courts, [s. 29 of Act of 1890.] Forms 88 and 89. Extracts to be sent to Board of Trade. Gazetting notices. Form 8G. Ke-gazetting. 756 COMPANIES (winding-up) bules, 1890. 146.— (I.) The file of proceedings shall be kept by the Official Receiver, and all orders, reports, exhibits, admissions, memorandums, and office copies of affidavits, examinations, depositions, and certificates, and all other docu- ments relating to the winding up of any company shall be placed on the file by the Official Eeceiver or the Liquidator, as far as may be in continuous order. Every contributory of the company, and every creditor thereof whose proof or claim has been admitted, and every person who has been a director or officer of the company, shall be entitled, at all reasonable times, to inspect the file free of charge, and, at his own expense, to take copies or extracts from any of the documents comprised therein, or to be furnished with such copies or extracts at a rate not exceeding threepence per folio of seventy-two words ; and the file shall be produced in Court, or before the Judge, and otherwise as occasion may require. 147. — (1.) Whenever the London Gazette contains any advertisement relating to any winding-up to which these Rules apply, the Liquidator shall file with the proceedings a memorandum referring to and giving the date of the advertisement. (2.) In the case of an advertisement in a local paper, the Official Receiver shall keep a copy of the paper, and a memorandum referring to and giving the date of the advertisement shall be placed on the file. (3.) For this purpose one copy of each local paper in which any advertise- ment relating to any winding-up proceeding in the Court is inserted, shall be left with the Official Eeceiver by the person who inserts the advertisement. (4.) A memorandum under this Rule shall be primd facie evidence that the advertisement to which it refers was duly inserted in the issue of the Gazette or newspaper mentioned in it. Release of Liquidator. 148. A Liquidator, before making application to the Board of Trade for his release, shall give notice of his intention so to do to all the creditors who have proved their debts and to all the contributories, and shall send with tlie notice a summary of his receipts and payments as Liquidator. 149. Where the Board of Trade have granted to a Liquidator his release, a notice of the order granting the release shall be gazetted. The Liquidator shall provide the requisite stamp fee for the Gazette, which he may charge against the company's assets. Books to be kept, and Eeturks made, by Officebs op Coukts. 150. In the High Court the Chief Clerks of the Chancery Division, and in the District Registries of the High Court at Liverpool and Manchester respectively the District Eegistrars of the High Court, and in a Court other than the High Court, the Registrar or other officer of the Court whose duty it is to perform under direction of t)ie Judge the duties which in a County Court are performed by the Eegistrar, shall keep books according to the Forms in the Appendix, and the particulars given under the different heads in such books shall be entered forthwith after each proceeding has been concluded. 151. The officers of the Courts whoso duty it is to keep the books pre- scribed by these Eules shall make aud transmit to the Board of Trade such extracts from their books, and shall furnish the Board of Trade with such information and returns as the Board of Trade may from time to time require. Gazetting. l.'JS. All notices subsequent to tho making by the Court of a winding-up order in pursuance of tho Act or these Eules requiring publication in the Loiulon U(i~cltc shall bo gazetted by the Board of Trade. 153. Where any winding-up order is amended, and also in any case in which any matter which has been gazetted has been amended or altered, or in which a matter has been wrongly or inaccurately gazetted, the Board of Triulo shall re-gazotto such order or matter with the necessary amendments and alterations in tho prescribed form, at the expense of the company's assets, or otherwise as the Board of Trade may direct. COMPANIES (winding-up) eulbs, 1890. 757 Rule 154. Liquidators and Committees of Inspection. 154-— (1-) The remuneration of a Liquidator shall, unless the Court shall Remuneration otherwise order, be fixed by the Committee of Inspection, and shall be in of Liquidator. the nature of a commission or percentage of which one part shall be pay- able on the amount realised after deducting the sums (if any) paid to secure creditors out of the proceeds of their securities and the other part on the amount distributed in dividend. (2.) If there is no Committee of Inspection the remuneration of the Liqui- dator shall be in accordance with the scale of percentage payable for realisations and distributions by the Ofl&cial Eeceiver as Liquidator. 155. Except as provided by the Acts or these Eules, no Liquidator shall Limit of re- be entitled to receive out of the estate any remuneration for services ran- muneration. dered to the company, except the remuneration to which under the Acts and Eules he is entitled as Liquidator. _ 156. Neither the Liquidator nor any member of the committee of inspec- Dealings with tion of a company shall, while acting as Liquidator or member of such assets. committee, except by leave of the Court, either directly or indirectly, by himself or any partner, clerk, agent, or servant, become purchaser of any part of the company's assets. Any such purchase made contrary to the provisions of this Eule may be set aside by the Court on the application of the Board of Trade or any creditor or contributory, and the Court may make such order as to cpsts as the Court shall think fit. 157. Where the Liquidator carries on the business of the company, he Liquidator not shall not, without the express sanction of the Court, purchase goods for the to purcliase carrying on of such business from any person whose connection with the from his Liquidator is of such a nature as would result in the Liquidator obtaining employer or any portion of the profit (if any) arising out of the transaction. partner with- 158. No member of a committee of inspection in a winding-up shall, except ""' Court's under and with the sanction of the Court, directly or indirectly, by himself *^"'='''°°- or any employer, partner, clerk, agent, or servant, be entitled to derive any Committee of profit from any transaction arising out of the winding-up, or to receive out inspection. of the assets any payment for services rendered by him in connection with the administration of the assets, or for any goods supplied by him to the Liquidator for or on account of the Company. If it appears to the Board of Trade that any profit or payment has been made contrary to the pro- visions of this Eule they may disallow such payment or recover such profit, as the case may be, on the audit of the Liquidator's accounts. 159. In any case in which the sanction of the Court is obtained under Costs of the two last preceding Eules, the cost of obtaining such sanction shall be obtaining borne by the person in whose interest such sanction is obtained, and shall 'auction. not be payable out of the company's assets. 160. Where the sanction of the Court to a payment to a member of a com- Sanction of mittee of inspection for services rendered by him in connection with the payments to administration of the company's assets is obtained, the order of the Court members of shall specify the nature of the services, and shall only be given where the committee of service performed is of a special nature. No payment shall, under any cir- inspection. cumstances, be allowed to a member of a committee for services rendered by him in the discharge of the duties attaching to his ofllce as a member of such committee. 161. — (1.) Where a Liquidator is appointed by the Court, the Official Discharge of Eeceiver shall forthwith put the Liquidator into possession of all property costs, &c., of the company of which the Official Eeceiver may have custody ; provided before assets that such Liquidator shall have, before the assets are handed over to him handed over by the Official Eeceiver, discharged any balance due to the Official Eeceiver *" Liquidator, on account of fees, costs, and charges properly incurred by him, and on account of all advances properly made by him in respect of the company, together with interest on such advances at the rate of four pounds per cent. per annum; and the Liquidator shall pay all fees, costs, and charges of the Official Eeceiver which may not have been discharged by the Liquidator before being put into possession of the property of the company, and whether incurred before or after he has been put into such possession. Rule 162. Appointment. Removal. Personal per- formance of duties. Assistant Official Receivers, Power of officers of Board of Trade and Official Receivers* clerks in certain cases to act for Official Receivers. Duties where no assets. Accounting by official Receiver. Official Re- ceiver to Act for Board of Trade where no committee of inspection. Appeals from Board of Trade and Official Receiver. Applications under s. 25 (2) of Act of 1890. 758 COMPANIES (winding-up) eules, 1890. (2.) The OEBcial Receiver shall be deemed to have a lien upon the com- pany's assets until such balance shall have been paid and the other liabilities shall have been discharged. (3.) It shall be the duty of the Official Receiver, if so requested by the Liquidator, to communicate to the Liquidator all such information respect- ing the estate and affairs of the company as may be necessary or conducive to the due discharge of the duties of the Liquidator. OFriciAL Eeceivehs, and Boaed of Teade. 162. — (1.) Judicial notice shall be taken of the appointment of the Official Receivers appointed by the Board of Trade. (2.) When the Board of Trade appoints any officer to act as deputy for or in the place of an Official Receiver, notice thereof shall be given by letter to the Court to which such Official Receiver is or was attached. The letter shall specify the duration of such acting appointment. (3.) Any person so appointed shall, during his tenure of office, have all the status, rights, and powers, and be subject to all the liabilities of an Official Receiver. 163. — (1.) Where an Official Receiver is removed from his office by the Board of Trade, notice of the order removing him shall be communicated by letter to the Court to which the Official Receiver was attached. 164. The Board of Trade may, by general or special directions, determine what acts or duties of the Official Receiver in relation to the winding-up of companies are to be performed by him in person, and in what cases he may discharge his functions through the agency of his clerks or other persons in his regular employ, or under his official control. 165. An assistant Official Receiver, appointed by the Board of Trade, shall be an officer of the Court, like the Official Receiver to whom he is assistant, and, subject to the directions of the Board of Trade, he may represent the Official Receiver in all proceedings in Court, or in any administrative or otlier matter. Judicial notice shall be taken of the appointment of an assistant Official Receiver, and he may be removed in the same manner as is provided in the case of an Official Receiver. 166. In the absence of the Official Receiver any officer of the Board of Trade duly authorised for the purpose by the Board of Trade, and any clerk of the Official Receiver duly authorised by him in writing, may by leave of the Court act on behalf of the Official Receiver, and take part for him in any public or other examination and in any unopposed application to the Court. 167. Where a company against whom a winding-up order has been made has no available assets, the Official Receiver shall not be required to incur any expense in relation to the winding-up without the express directions of the Board of Trade. 168.— (1.) Where a Liquidator is appointed by the Court, the Official Receiver shall account to the Liquidator. (2.) If the Liquidator is dissatisfied with the account or any part thereof, he may report the matter to the Board of Trade, who shall take such action (if any) thereon as it may deem expedient. (3.) The provisions of these Rules as to Liquidators and their accounts shall not apply to the Official Receiver when he is Liquidator, but he shall account in such manner as the Board of Trade may from time to time direct. 169. Where there is no committee of inspection any functions of the com- mittee of inspection which devolve on the Board of Trade may, subject to directions of the Board, be exercised by the Official Receiver. 170. An appeal in the High Court against a decision of the Board of Trade, or an appeal to the Court from an act or decision of the Official Receiver, shall be brought within 21 days from the time when the decision or act appealed against is done, pronounced, or made. 171. — (1.) An application by the Board of Trade to the Court to examine on oath the Liquidator or any other person piirsuant to section 25 of the Companies (Winding-up) Act, 1890, shall be made ex parte, and shall be supported by a report to the Court filed with the proceedings, stating the circumstances in which the application is made. COMPANIES (winding-up) RULES, 1890. 759 (2.) The report may be signed by any person duly authorised to sign Rule 172. •documents on behalf of the Board of Trade ; and shall for the purposes of ■ euch application be prima facie evidence of the statement therein contained. Special Managek. 172. Every Special Manager shall account to the Offlcial Receiver, and Accounts, such Special Manager's accounts shall be verified by affidavit, and, when ^°''™ ^^■ approved by the Official Receiver, the totals of the receipts and payments shall be added to the Official Beceiver's accounts. Attendance and Appearance op Parties, &c. 173. Every person for the time being on the list of contributories of the Attendance at company and every person whose proof has been admitted shall be at proceedings, liberty, at his own expense, to attend proceedings, and shall be entitled, upon payment 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 Court shall be of opinion that the attendance of any such person upon any proceedings 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. 174. Where the attendance of the Liquidator's solicitor is required on any Solicitor of proceeding in Court or Chambers, the Liquidator need not attend in person, Liquidator, except in cases where his presence is necessary in addition to that of his solicitor, or the Court directs him to attend. Miscellaneous Matters. 175. The Board of Trade may from time to time issue general orders or Board of Trade regulations for the purpose of regulating any matters under the Act or these orders, &c. Rules which are of an administrative and not of a judicial character. Judicial notice shall be taken of any general orders or regulations which are printed by the Queen's printers, and purport to be issued under the authority of the Board of Trade. 176. The Court may, in any case in which it shall see fit, extend or abridge Enlargement the time appointed by these Rules or fixed by any order of the Court for or abridgment doing any act or taking any proceeding. of t™«. 177. — (1.) No proceeding under the Acts shall be invalidated by any Formal formal defect or by any irregularity, unless the Court before which an defect not objection is made to the proceeding is of opinion that substantial injustice to invalidate has been caused by the defect or irregularity, and that the injustice cannot proceedings. be remedied by any order of that Court. (2.) No defect or irregularity in the appointment or election of a Receiver, Liquidator, or member of a committee of inspection shall vitiate any act done by him in good faith. 178. In all proceedings in or before the Court, or any Judge or officer Application thereof, or over which the Court has jurisdiction under the Acts and Rules, of existing where no other provision is made by the Acts or these Rules the practice, pi'ocedure. proceeding, and regulations shall, unless the Court otherwise in any special case directs, in the High Court and Stannaries Court be in accordance with the Rules of the Supreme Court and practice of the High Court, and in a County Court and Palatine Court in accordance, as far as practicable, £^etitions m with the existing Rules and practice of the Court in proceedings for the Manchester administration of assets by the Court. District 179. The provisions of Rule 2 of the Rules of the Supreme Court, 1887, Registries, relating to petitions in the District Registries of Liverpool and Manchester, ^^^ shall apply to petitions presented in the said Registries imder the Acts q"^" ™ ^' and these Rules. 1862 not 180. The Rules contained in the General Orders of the Court of Chancery to apply in of 1862, and the Forms prescribed by such Rules, shall from and after the compulsory commencement of these Rules cease to have effect or apply in the winding windings-up up of any company wound up under the order of the Court where the after December winding-up order is made after the 31st of December, 1890. 31, 1890. ( 760 ) COMPANIES WINDING-UP EULE8, 18C0. APPENDIX. FORMS. Co) Insert full natiio of Com- raiiy. Xo. 1. General Title {Eicjh Court}. Ill tho High Court of Justice , 189 numher.'] Chancery Division, Mr. Justice In the matter of the Comijanfes Acts, 18G2 to 1890, and In the matter of the (a) Company, Limitorl [Here state letter and (a) Insert full name of Com- pany. No. 2. General Title (^County Court"). Ill the County Court of , holden at In the matter of tlie Companies Acts, 1662 to 1S90, and In tho matler of the (o) Company, Limited. No. 3. Oeber op Teaxsfek. {Title.) to (he (c) day of and upon and upon reading it is ordered that Court Court. , ISO (»■) Name of Upon tho application of (a) Arplicant. liearing (d) Court from the Eaid proceedings be transferred from tlic {li) which the trans- fer Is to be made, -Daiod. this (c) Court to v)ilch the trans- __ ivi- is to be matle. No. 4. Notice of Tran.'-P FORMS, 1890. 761 TVT t; Form 5. No. 5. Appointment op Shobthakd Wkiteu to take Examination, (^Title.) Before Upon the application of the Official Receiver the Court hereby appoints of in the county of to take ttie examination of at his public examination this day pursuant to Rule of the Companiea Winding-up Rules, 1890. Dated this day of , 189 . No. 6. Declaration by Shorthand Wbitek. (ri«e.) Before I, , of , in the county of , the short- hand writer appointed by this Court to take down the examination of , do solemnly and sincerely declare that I will truly and faithfully take down tlio questions and answers put and given by the said in this matter, and will deliver true and faithful transcripts thereof as the Court may direct. Dated this day of , 189 . [Declared before me at the time and place above mentioned.] Kg. 7. Notes of Pdblic Examination where a Shorthand Writer is appointed. (Title.) Public examination of (o). (a) Mr. ■DP i. ii, ^ J. 1° officer [or an Before at the Coui-t , tu case may be] Ihis day of , 189 . of the above- The above-named , being sworn and examined at the time and place above n^™ea Company, mentioned, upon the several questions following being put and propounded to him, gave the several answers thereto respectively following each question, that is to say:— A. These are the notes of the public examination referred to in the memorandum of public examination of , taken before rae this day of , 189 . No. 8. Notes op Pdblio Examination where Shorthand Writer is not appointed. (Title.) Public examination of (a). (a) Mr. au officer [oi' as Before at the Court , the case may le] this day of ,189 . of the above- The above-named , being sworn and examined at the time and place named Company. above mentioned, upon his oath saith as follows : — A. These are the notes of the public examination referred to in the memorandum of public examination of , taken before me tliis day of , 189 . No. a Return by Taxing Oeeioer. In tlie (a) . ! (") ^'"^^ »' Return of Bills taxed during the year ending day of , ^™'''- 189 . 762 FOBMS, 1890. Form 10. The Companies Acts. Number of Bills taxed. Gross amount of Bills. Amount disallowed on Taxation. Net amount allowed. Solicitors' Bills - - _ _ Acooiratants' Bills - - - Auctioneers' Bills - High Bailiffs' Bills - - - _ Brokers' and other persons' Bills 1 Totals - _ _ _ Date ,189 (Signed) No. 10. Ceetifioate op Taxation. {Tifle.) I hereby certify that I have taxed the bill of costs [or charges] [or expenses] of Mr, 0. D. [here state capacity in which employed or engaged] [where necessary add " pursuant to an order of the Court dated the day of , 189 "1, and have allowed the same at the sum of pounds shillings and pence [where necessary add " -which sum is to be paid to the said C. D. by as directed by the said order "]. Dated this day of , 189 . Taxing Master [or Eegistrar]. No. 11. Kegister to be kbit by Taxing Officer. The Companies Acts, 1862 to 1890. Name of Company. Solicitors' Bills. Auclionecrs' High Bailiffs' Bills. Bills. Accountants' Bills. Brokers' or other Per- sons' Bills. 5 E » R id 1^ Net Amount Allowed. Gross Amount of Bill. C O II 1^ Gross Amount of Bill. Amount Taxed off. §■3 s » 5 1° §•5 II z; FORMS, 1890. 763 No. 12. Form 12. Petition. 189 . [Here state letter and number.'] In the (a) . W State name In the matter of the Companies Acts, 1862 to 1880, the High "coun and the Division and In the matter of the Company, Limited (b). Judge. To (c) . (6) [or as the The humble petition of (d) showeth as follows : — ««» may 6e.] 1. The Company, Limited (hereinafter called the company), was in (c) Insert title the month of incorporated under the Companies Acts. of Court. 2. The registered office of the company is at (e) (d) Insert full 3. The nominal capital of the company is £ , divided into name, title, &c., shares of £ each. The amount of the capital paid up or credited as paid up ° ''^ ' ""'''' is £ _ tr r c r f ^^^ gj^j^ , j^^ 4. The objects for which the company was established are as follows : — registered office To BO as sufficiently and other objects set forth in the memorandum of association thereof. trict'^iu' wWch'it [Here set out in paragraphs the facts on which the petitioner relies, and conclude as '' situate. Jollows'] ; — Your petitioner therefore humbly prays as follows ; — (1.) That the Company, Limited, may be wound up by the court under the provisions of the Companies Acts, 1862 to 1890 : {2.) Or that sucli other order may be made in the premises as shall be just. Note. — (/) It is intended to serve this petition on . ^yj This note will be unneces- sary if the com- TO pany is petl- JNO. lo. tioner. Petition by TJnpaid Creditob on Simple Contbaot. {Title as in No. 12.) Paragi'aphs 1, 2, .S, and 4 as in No. 12. 5. The company is indebted to your petitioner in tlie sum of £ for (a) .W State con- 6. Your petitioner has made application to the company for payment of his debt, deM''w^th parti- hut the company has failed and neglected to pay the same or any part thereof. culars so as to 7. The company is [insolvent and] unable to pay its debts. establish that the 8. In the circumstances it is just and equitable that the company should be 1°''' "^'Mmed is wound up. Your petitioner therefore, &c. [as in Ho. 12]. No. 14. Affidavit of Sektioe of Petition on Members, Offioees, oe Seevaxts. {Title.') In the matter of a petition dated I, , of , make oath and say : — 1. [In the case of service of petition on a member, officer, or servant at the registered office, or if no registered office at the principal or last known principal place of business ■o/ tlie company.'] That I did on day, the day of , 189 , serve [name and description] a member (or officer) (or servant) of the said company with a copy of the above-mentioned petition, duly sealed with the seal of the Court, by delivering the same personally to the said , at [office or place of business as aforesaid], before the hour of in the noon. 2. [In the case of no member, officer, or servant of the company being found at the registered offices or place of business.] That I did on day, the day of , 189 , having failed to find any member, officer, or servant of the above-named company at [here state registered office or place of business], leave there a copy of the above-named petition, duly sealed with the seal of the Court, before the hour of in the noon [add with whom such sealed copy toas left, or where, e.g. ; affixed to door of offices, or placed in letter box, or otherwise.] 3. [In the case of directions by the Court as to the member or members of the company fo be served.] 764 FORMS, 1890. Form 15 Thnt I did on day, tlie day of , 189 , serve [name ' - or names and descrijitiori] with a copy of the above-mentioned petition, duly sealed with tliG seal of the Court, by delivering the same personally to the said , at [place], before the hour of in the noon. 4. A sealed copy of the said petition is hereunto annexed. Sworn at, &c. No. 15. Affidavit of Service of Petition on Liquidatoe. {Title.) In the matter of a petition, dated , for winding up the above company under the supervision of the Court. I, , of , make oath and say : — That I did, tfii day, the day of , 189 , serve [name and, description] the liquidator of the above-named company with a copy of the above-mentioned petition, duly sealed with the seal of the Court, by delivering the same personally to the said , at [place'], before the hour of in the noon. A sealed copy of the said petition is hereunto annexed. Sworn at, &o. Kg. 16. Adveetisement of Petition. In the matter of the Companies Acts, 1862 to 1890, and (a) Insert name In the matter of the (a) Company, or Company. iNotioe is hereby given that a petition for the winding up of the above-named (liUf tbewind- co™P£'"y by (6) the High Court of Justice [or the county court of ] ing-np is to be holdeu at [or, as ilie case may he], was, on the day subject to super- of , 189 , presented to the said court by the said comjiany [or by vision, insert in- j ]g^ pf ^ ^ creditor [or contributory] of the said company [or, as words" " subject ''"^ ""^^ ""^"V ^^1- -^^^ tl'^' '1^8 said petition is directed to be heard before the court to tbe super- sitting at on the day of , 189 ; and vision of." 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 Acts, should appear (cj In the at the time of hearing by himself or (c) bis counsel for that purpose ; and a copy of county court the petition will be furnished to any creditor or contributory of the said company add '|bis solici- requiring the same by the undersigned on payment of the regulated charge for the "^ "''' same. C. and D., of &o. [Agents for E. and F., of &c.J Solicitors for the petitioner. Ko. 17. Affidavit veeifting Petition. I, A. B., of &o., make oath and sny, that such of the statements In the petition now produced and shewn 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 pei'soiis I believe to bo true. Swern, &c. No. IS. OHDEU FOK ■\VlSDlNG-Vr BY THE COUET. day of , 189 . (,Tith.) Upon the ;iolitiou of the above-named company [or A. B., of &c., a creditor [nr contributory] of llio above-named company], on the day of ,181) , prefuricd unto the court, and upon hearing for the petitioner, and for , and upon reading tlie said petition, an affidavit of FORMS, 1890. 765 ■(the said petitioner), filed, &c., verifying the said petition, an affidavit of L. M., filed Form 19. tlie day of ,189 , the ioiidoii Gazette of the day of , 189 , tiro newspaper of the day of {enter any other papers], each containing an advertisement of the said petition [enter any ■other evidence^, tliis court doth order that the said • Company he Tvonnd up by this court under the provisions of tlie Companies Acts, 1862 to 1890, ^md that (a) , the Official Eeoeiver attached to this court, be W /'jj™;^.,"^ constituted Provisional Liquidator of the affairs of the company. ° " Note. — A. S., being a of the company, is hereby required to attend at the office of the Official Receiver at (6) . m Insert the The Official Keceiver's offices are open every weekday from 10 a.m. to 4 p.m., ^Jfendance Ts re- •except days, wlien they close at p.m. quired. No. 19. Oeder eok WixDiNa-up, subject to Supeevision. day, the day of , 189 . (Title.) Upon tlio petition, &c., this court doth order that the voluntary winding up of tile 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, oontributories, and liquidators of the said J L J f J in my employ- Dated this day of , 189 . my official con- Official Eeceiver. trol," or "being an olficer of the Board of Trade." No. 26. Notice of Meeting [Genekal Fokm], iTith.) Take notice that a meeting of creditors [or contributoriee] in the above matter •will be held at on the day of , 189 , at o'clock ill the noon. Agenda (a). (a) Here insert Dated this day of , 189 . meeUng caUed'.'^ ' (Signed) (6) ^^ ..jLiquida- Forma of general and special proxies are enclosed herewith. Proxies to bo used Receiver." ^'^ at the meeting must be lodged not later than o'clock on tlie day of , 189 . No. 27. Affidavit of Postage op Notices of Meeting. (Title.} I , a (a) , make oath and say as follows : — («) state tlie 1. That I did on the day of ,189 , send to ^|^™Ptij°° "' ">^ each creditor mentioned in the Company's statement of affairs, [or to each con- tributory mentioned in the register of members of the Company] a notice of the time and the place of the (6) in the form hereunto annexed marked "A." (6) Insert here 2. That the notices for creditors were addressed to the said creditors respectively, '..'Sfperai" or according to their respective names and addresses appearing in the statement of ge^ral™ or afiairs of the Company. "first" meeting 3. That the notices for contributories were addressed to the contributories respec- of creditors Cor tive'ly according to their respective names and addresses appearing iu the register ?;°e caSoy'se]".' of the Company. i. That I sent the said notices by putting the same prepaid into the post-office at before the hour of o'clock in the noon on the said day. Sworn, &c. No. 28. (a) Each credi- ~ -.^ ' -fcT ^y-< \ tor mentioned in Cektihcate of Postage of Notices ((jenebal). the statement of aiiairs, or each (Title.) contributory I , a clerk in the office of the Official Eeceiver, hereby Registerof Mem- certify — ^^^^ °^ '^e Com- 1. That I did ou the day of , 189 , send to («) , P^°y £'■''/ "'' a notice of the time and the place of the first meeting, or (6) in the ""'^'^"y ""i- form hereunto annexed marked " A^'' me^eL;t"fr"™- Paragraphs 2, 3, and 4 as in No. n. journfd general Sicrnntm-p meeting " [or as oignaiui e . y,^ ^^^ ^^^^ ^^^^ Dated • 768 FOEJIS, 1890. Form 29. Xo. 29. jrn.MOIlANDU-lI OF AdJOURNJIKXT OF FiRST OR OTHEE MEETING. (al "First" or rr- i \ fts the case may Cattle.) be. (ii) Insert Lcfore at on the day of , 189 , at "creditors" or o'clock. ii's' thfcaBTmay Mcmoi'anclum.— The («) mepting of (b) in the ahove ije. mutter was held nt the time and place above mentioned ; but it appearing that (c) (e) Here state the meeting was adjourned until the day of ,189 ,, reason for ad- (^j o'clpck in the noon, then to be held at the same place, journment. ^i ■ Chairman. No. 30. MeMOHANDUM of PliOOEEDIXClS AT ADJOUKSED FlR.^T MeETINS. (No quorum.) (Tilh'.) Before at ou the day of , 189 , at o'clock. •' creditUrs '" or Memoiandum. — The adjourned meeting of (a) in the above matter " contributorles " w'as held at the time and place above mentioned ; but it appearing that there was as the case may not a quorum of (a) qualified to vote present or represented, no resolu- tion was passed, and the meeting was not further adjourned. Chairman. 1.0. (a) Or "con- Iributorles." contributories in- Hert " number of pliares," Ko. 31. List of Cheditoes (a) assembled to ee rsED at every Meetixg. {Title.) Meeting held at this day of , 1S9 Xumber. Names of creditors (fj) present or represented. Amount of ((>) Proof. 1 2 4 5 « 7 i 1 7 Total number of cre.litors (a) present or represented Ko. ;vj. liicroET OF Eesvlt of Meetixg of Ckeditoes oe Conteibutoeies. In the matter, &c.. I, A. B., the Oilioinl Eocoiver'of the Court [or as the case may be], chairman of a molting of the creditors [or contributories] of the above-named company, summoned by ndvertisoment [or notice] dated the day of , 189 , and Iield FORMS, 1890. 769 ou the ■ day of , 189 , at , in the county of , do hereby report to the Court the result of such meeting as follows : — The said meeting was attended, either personally or by proxy, by creditors ■whose proofs of debt against the said company were admitted for voting purposes, amounting in the whole to the value of £ [or by con- tributories, holding in the whole shares in the eaid companyj 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 for oon- tributories] of the said company wished that [here state proposal suimitted to the meeting]. The said meeting was of opinion that the said proposal should [or should not] be adopted arid carried into effect [or the result of the voting upon such question was aa follows : — ] The undermentioned creditors [or oontributories] voted in fatour of the said pro- posal being adopted and carried into effect : — Form 32. Name of Creditor (or Contributory]. Value of t)ebt [or Nunlber of Shares}. Number of Votes confeirred oil each Contributory by the RegulatiODS of the Ootnpaily. The undermentioned creditors [or oontributories] voted against the said proposal being adopted and carried into effect : — Name of Creditor lor Contributory]. Value of Debt [or iS" umber of Shares. Number of Votes conferred on each Contributory by the Regulations of the Company. Dated this day of 189 (Signed) Chairman. 3d 770 FORMS, 1890. Form 33. No. 33. Statement of AffaIbS. (KiZe.) Statement of Affaiks on the day of Winding-up Order. -As regards Creditors. , 1S9 , the date of the GroSB Liabilities. Liabilities. Expected to rank. Debts and liabilities, viz. :■ — (o.) Unsecured creditors, as per List "A" i (6.) Creditors fully secured [not in- cluding debenture holders] as per List " B " Estimated value of securities - Estimated surplus - £ Carried to List " C " Balance to contra - £ (d.) Creditors partly secured as per Lisf'C" - - £ Less estimated value of securities Estimated to rank for dividend (d!.) Liabilities on bills discounted other than the company's own accept- ances for value, as per List " D " Of which it is expested will rank for dividend (e.) Other liabilities, as per List " E " - Of which it is expected will rank against the assets for dividend (/.) Loans on debenture bonds, as per List " P " deducted contra - £ ((/,) Preferential creditors for rates, taxes, wages, &c., as per List " G " deducted contra - £ Estimated surplus (if any) after meeting liabilities of company, subject to cost of liquidation - II. — As regards Contnhutories. Capital issued and allotted, viz. : — Founders Shares of £ per share Amount called up at £ por share, as pef- Liaf'L" - - . . . Ordinary Shares of £ per share Amount called up at £ per share, as per Lisf'M" - - . . - Preference Shares of £ per share Amount called up at £ per share, as per List " N " - - - - - - (Add particulars of any other capital) Add deficiency to meet liabilities as above - FORMS, 1890. 771 No. 33. — continued. Statement op Atfaies — continued. (Title.) Statement of Afeaibs on the day of , "Windiiig-up Order. I. — As regards Creditors. Form 33. 189 , the date of the Assets. («.) Property as per List " H," viz. : — (a.) Cash at banker's ... (b.) Cash in hand (c.) Stock in Trade [estimated cost £ (d.) Machinery - - - (e.) Trade fixtures, fittings, utensils, &o. (/.) Investments in shares, &o. - (3.) Loans on mortgage (ft.) Other property, viz. (fc.) Book debts, as per List " I," viz. : — Good Doubtful Bad ]- Estimated to produce. i I £ s. d. Estimated to produce (c.) Bills of exchange, or other similar securities on hand, as per List " J " Estimated to produce ..... (d.) Surplus from securities in the hands of creditors fully secured (per contra) (b) ------- (e.) Unpaid calls, as pet List " K ": — Estimated to ptoduce Estimated total assets - - .... Deduct loans on debenture bonds secured on the assets of the company as per contra (/) - - Estimated net .assets Deduct preferential creditors as per contra (p) Estimated amount available to meet unsecured creditors, and subject to cost of liquidation .... Estimated deficiency of assets to meet liabilities of the Company, subject to cost of liquidation . . . . The nominal amount of Unpaid capital liable to Ijg called up to meet the above deficiency is £ II. — As regards Contributories. Estimated surplus as above (if any) subject to costs of liquidation Total deficiency as explained in Statement '' " I, of , make oath and say that the above statement and the several lists hereunto annexed marked are, to the best of my knovrledge and belief, a full, true, and complete statement Of the affairs of the above-named company on the day of , 189 , the date of the winding-up order. Sworn at this ) Sio-nature , 189 , before me J bignatme 3d2 day of 772 FORMS, 1890. Form 33. LIST '-A." UnSBOUEED CEEDlTORSi the Names to be arranged in Alphabetical Order and numbered consecutively, Creditors for £10 and upwards being pla(Jed first. Notes. — 1. When thefe Is a contra account against the cr^itor, leps than the amount of his claim against the comjifany, the amount of the creflitor's claim and the amount of the contra account should be shown ill the third column, and the balance only be inserted under the beading " Amount of Debt," thus:— £ s. d. l^otal amount of claim - : : Less: Contra account : : No such sSt-off sboluld be included in List "I." 2. The particulars of any bills of exchange and promissory notes held by a creditor should be inserted immediately below the name and address of such creditor. 3. The names of any creditors who are also contributories, or alleged to be contributories, of the company must be shewil separately and described as such at the eild of the list. No. Name. Address and Occupation, Amount of Date when contracted. Consideration. Debt. Month. Year. Signature Dated , 189 LIST "B." CltEmTORS FDLLY SEODEED (NOT INCLUDING DeBENTIEE HoLDEES). No. Name of Creditor. Address and Ocfcupation. •s s Date ■when con- tracted. c 1 i o "S It P t d 1 ■s >> 1 Is 1" t 1 •ll Signature Dated ,189 FOEMS, 1890. 773 LIST "0," Creditoks partly sbodked, (State whetlier also Coutributories of tlie Oompaijy.) Form 33. No. Name of Creditor. Address and Occupation. Date wben con- tracted. .2 1 i •s I'i i! 1^ 1 > ns ^ 1 13 E g 1 1- 1 i ! i 1 Signature P.ited ,189 LIST "D." Liabilities op Company on Bills Discodnted other than their own ApcEPTANOES roR value. No. Acceptor's Name, Address, and Occupation. Whether liable as Drawer or J ndorser. Date when due Amount. Holder's Name, Address, and Occupation (if known). Amount expected to rank for Dividend. Signature Dated , 189 LIST "E." Other Liabilities. Full Particulars of all Liabilities not otherwise Scheduled to be given here. No. Name of Creditor or Claimant. Address and Occupation. Amount (rf Liabi- lity or Date when Liability incurred. Nature of Liability. Consider- ation. Amount expected to rank against Assets for Dividend. Claim. Month. Year. 1 1 1 Signature Dated .189 774 FORMS, 1890. Form 33. LIST "F." List of Debentcke Holdebs. The Names to be arranged in Alphabetioal Order and numbered consecutively. Separate Lists must bo furnished of Holders of each Issue of Debentures should more tlian one Issue liavo been made. [State particu- lars.] rstato particu- lars.] No. Name of Holder. Address. Amount, Description of Assets over which Security extends. Signature - Dated 189 LIST "G." Pkepeeential Cbeditobs foe Eates, Taxes, Salaries, and "Wages. No. Name of Creditor. Address and Occupation. Nature of Claim. Period during which Claim accrued due. Date when due. Amount of Claim. Amount payable in fiill. Difference ranking for Dividend. ' j j Signature Dated , 189 LIST "H." Peopekty. Full particulars of every description of property not included in any other list, arc to be set forth in this list : — Full Statement and Nature of Property. Estimated Cobt. [estimated cost £ ] (a.) Cash at banker's - (6.) Cash in hand - (c.) Stock ill trade, at ((i.) IMachiuery at _ _ _ (e.) Trade iixturos, fittings, office furniture, utensils, &o. - ______ (/.) Investments in stocks or shai'es - (3.) Loans for which mortgage or othtr security held (It.) Other property, viz. : — Eiitlmated to produce. Signature Dated ,189 FORMS, 1890. 775 LIST "I." Debts due to the Company. The Names to be arranged in Alphabetical Order and numbered consecutively. Note.— If any debtor to the Company is also a creditor, but for a less amount tban his indebtedness, the gross amount due to the Company and the amount of the Contra account should be shown on the third column, and the balance only be inserted under the headmg " Amount of Debt," thus :— £ s, d. Due to Company - : ; Less : Contra account : ; No such claim should be included in sheet " A.'' Form 33. No. Name of Debtor. Residence and Occupation. Amount of Debt. Folio of Ledger or other Book where ParticularB; to be found. When con- tracted. £ ■3.Ss Good. Doubtful. Bad. i 11 Signature Dated 189 LIST "J." Bills of Exohansb, Prqmjssobt Notes, &o., on hand available as Assets. No. Name of Ac- ceptor of Bill or Note. Addrega, &c. Amount of Bill or Note. Date when due. Estimated to produce. Particulars of any Property held as Security for Payment of Bill or Note. Signature Dated , 189 776 FORMS, 1890. Form 33. LIST "K." Unpaid Calls. No. In Share JleglBtcr. Nftme of Sbart'holder. Address and Occupation. No. of Shares held. Amount of Call per Share unpaid. Total Amount due. Estimated to realise. Signature Dated 189 " L." LjST OF PODNPEHS' SHARES. Eeglster Name aijd Address of Shareholder. Nominal Amount of Share. No. of Shares held. Amonnt per Share called up. Total Amount called up. Signature Dated , 189 "M." List op OnuiNAETf Shares. Register No. Name and Address of Shareholder. Nominal Amount of Share. No. of 1 Amount Shares. | per Share held. called up. Total Amount called up. ' ! Signature Dated .189 "N." List op Pkeferenoe Shares. Register No. Name and Address of Shareholder. Nominal Amount of , Shares. No. of Shares held. Amount per Share palled up. Total Amount called up. Signature Dated , 189 FORMS, 1890. 777 0. Deficiency Account. (1) Deficiency Account where Winding-up Order made within Three Years OF Formation of Company. Form 33. Gross profit (if any) arising from carrying on business from date of formation of Company, to date of Wind- ing-up Order.. [. Deficiency as per Statement of Affairs s d.l £ Total amount to be accounted for (3)£ I. Expenses of carrying on business from date of formation of Com- pany to date of Winding-up Order, viz. ; — Salaries and Wages . . Kent, Rates, and Taxes Miscellaneous trade Expenses Depreciations written off in Company's Books . . Interest on Loans II. Bad Debts(ifany)asper Schedule I."(0 III. Directors" Fees from date of for- mation of Company to date of Winding-up Order IV. Dividends paid (if any) from date of formation of Company to date of Winding-up Order V. Losses on Investments realised, from date of formation of Com- pany to date of Winding-up Order, exclusive of depreciation written off as above, viz. : — (4) VI. Depreciation on property not written off in Company's Books, viz. :— (4) VII. Otber Losses and Expenses (if any) (2) from date of formation of Company, to date of \Vinding- up Order, viz. : — (4) VIII. Unpaid Calls as per List " K " Less Amount taken credit for in front sheet as estimated ) Do. to be realised therefrom Balance estinjated as irrecoverable ! Total umount accounted for (3)£ sJd. Notes. — (l) This List must shew when debts were contracted. (2) Here add particulars of other losses or expenses (if any) and liabilities (if any) for which (3) These figures should agree. [no consideration received, (4) Where particulars are numerous they should be inserted in a separate schedule. (2) Deficiency Account where "Winding-up Order made more than Three Years after Formation op Company. I. Excess of Assets over Capital and Liabilities on the (I) day of 18 (if any), as per Company's Balance Sheet II. Gross profit (if any) arising from carrying on business from the (1) day of 18 III. Deficiency as per Statemeijt of Affairs I Total amount to be accounted for (5)£ I. Excess of Capital and Liabilities over assets on the (l) day of 18 , (if any) as per Company's Balance Sheet II. Expenses of carrying on business from the (I) day of 18 , viz. : — Salaries and Wages . . Rent, Bates, and Taxes Miscellaneous trade Expenses Depreciations written off in Company's Books . . Interest on Loans IILBadDebt^(ifany)asperList"I"(2) IV. Directors' Fees from the (l) day of 18 V. Dividends paid (if any) since the (1) day of 18 VI. Losses on Investments realised since the (1) day of 18 , viz. :— (4) VII. Depreciation on property not written off in Company's Books, viz. ; — (4) VIII. Other Losses and Expenses (if any) (3) since the (I) day of 18 , viz. : — IX. UnpaidCaUs,fl.B per List "K".. Less Amount laken credit for in front sheet as estimated to be realised therefrom . . Balance estimated as irrecoverable Total amount accounted for .. (5)£ Notes.— (i) Three years before date of Winding-up Order. f2) This List must shew when debts were contracted. [no consideration received. (3) Here add particulars of other losses or expenses (if any) and liabilities (if any) for which (4) Where particulars are numerous they should he inserted in a separate schedule. (5) These figures should agree. Signature . Dated ,189 ■ 778 FOBMS, 1890. Form 34. No. 34. Oedbb appointing Liquidator. (Title.) Upon the application of , the Official- Receiver of the Court, and upon reading the report of the result of the meeting of creditors and con- tributories held respectively on the day of , 189 , and on the day of , 189 , and upon hearing, &o., it is hereby ordered that of be appointed liquidator of the above-named Company. \_If a committee of inspection is also appointed, add And it is further ordered that the following persons be appointed a committee of inspection to act with the liquidator.] Dated the day of , 189 . And it is ordered that the said liquidator do within days from the date of this Order give security to the satisfaction of the Board of Trade in the manner provided by the Companies (Winding-up) Rules, 1890. Dated the day of , 189 . No. 35. Certiwoate that Liquidator or Special Manager has given Sbouritt. (,Title.) This is to certify that A. B., of , who was on the day of , 189 , appointed liquidator [or special manager] of the above-named Company, has duly given security to the satisfaction of the Board of Trade. Dated this day of , 189 . By the Board of Trade, (Signed) J. S. No. 36. Advertisement of Appointment oe Liquidator. In the matter, &o. By order of the , dated the day of , 189 , Mr. of has been appointed liquidator of the above-named Company with [or without] a committee of inspection. Dated this day of , 189. No. 37. Order directing a Public Examujation. {Title.) Upon the application of the OflScial Receiver in the above matter, and upon reading the report of the OfiBcial Receiver made to the Court on the day of , 189 , and [as the case may 6e] and it appearing , (a) State the it is ordered that [state name of persoii] attend before the (a) on a day to be Judge or officer named for the purpose and be publicly examined as to the promotion or formation of examitmt°n'is to ^'^^ Company and as to the conduct of the business of the Company, and as to his be held conduct and dealings as director [or officer] of the Company [or as the case may he\. Dated the day of , 189 . No. 38. Order appointing a Time for Public Examination. (Title.) Upon the applicotion of the Official Receiver in the above matter, it is ordered that the public examination of , who by the order of was directed (a) Insert the to attend boforu to be publicly examined , be held at (o) pluceforthe ox- (,„ t]iQ d^y of ,189 , at o'clock in And it is ordered that the above-named do attend at the place and lime above mentioned. Dated this day of , 189 . Note — Notice is hereby given that if you, the above-named fail, witliout reasonable excuse, to attend at the time and place aforesaid, you will be liable to be committed to prison without further notice. POEMS, 1890. 779 No. 39. ^<»"°i 39. Repoet to the Court whebe Peeson examined REFnsEs to answer to Satisfaction oe Eegisteae or Oppioee. CTitle.) At the [public] examination of (a) held before me this (a) e.g., A.B., a. day of ,189 , the following question was allowed 5?,™? "'■'l^'^^**'' by me to be put to the said f 1 ''"™'' forexami- Q. (6) •'■ "'""'"• T^ ^"^ refused to answer the said question. question.™ 4 / ^"^ answered the said question as follows :— (0 Witness. T4U , ,, ((J) Here insert 1 thereupon named the day of , 189 , at answers (if any), as the time and place for such [refusal to] answer to be reported to the Hon. Mr. Justice [or His Honour Judge ]. Dated this day of , 189 . Registrar. [or as the case may 6e]. No. 40. Order of Coprt that Examination is concluded. (KHe.) Whereas the above-named J. B. has duly attended before the court, and has been publicly examined as to the promotion and formation of the company [or as the case may 6e]. And whereas is of opinion that the said A. B. has sufficiently answered the questions put to him, it is hereby ordered that the examination of the said A. B. is concluded. Dated this day of , 189 . No. 41. Warrant against Person who pails to attend Examination. (Title.) To X. Y., the ofllcer of this court [or where warrant issues from u, county court, to the high bailiff and others the bailiffs of the said court] and all peace ofiBcers within the jurisdiction of the said court, and to the governor or keeper of the [here insert the prison]- Whereas by evidence taken upon oath, it hath been made to appear to the satis- faction of the court that by order of the court, dated the day of ,189 , and directed to (a) , he was du-eoted to attend W Name of personally at the (6) , and be examined before (c) , ^^'Xad™''"''^'' which order was afterwards, as hath been duly proved on oath, duly served upon the said (a) [or, that there is probable reason to suspect and believe that the said (a) amination^ ° ^^' has absconded and gone abroad [or quitted his place of residence, f s fr ' or] is about to go abroad [or quit his place of residence] with a view of avoiding yfj"^ of^'^offlcer examination under the Companies (Winding-up) Act, 1890]. before wlioin And whereas the said (a) did without good cause fail to attend on examination ia the said day of , 189 , for the purpose of being *^™'™ *° '"' examined, according to the requirements of the said order of this court made on the day of , 189 , directing him so to attend. These are therefore to require you the said [or high bailiff, bailiffs, and others], to take the said (a) and to deliver liim to the governor or keeper of the above-named prison, and you the said governor or keeper to receive the said (a) , and him safely to keep in the said prison until such time as this court may order. Dated this day of , 189 . 780 FORMS, 1890. Form 42, No. 42. Summons fob Persons to attend at Chambers to be examined. (Title.) (a) State place A. B. of &0., and E. F. of &c., are hereby severally summoned to attend at (a), in of examination, the county of , on the day of ,18 , at of the clock in the noon, to be examined on the part of the OfScial Receiver [or the liquidator] for the purpose of proceedings directed by the court to be taken in the above matter. [And the said A. JB. is hereby required to bring with him and produce, at the time and place aforesaid, a certain indenture [describe documents], and all other books, papers, deeds, writings, and otiier documents in his custody or powui- in anywise relating to the above-named company]. Dated this day of , 189 . This summons was taken out by Messrs. 0. and D., of , in the county of , solicitors for No. 43. Application to Board op Trade to authorise a Special Bank Account. (Title.) We, the committee of inspection, being of opinion that Mr. , of , the liquidator in the above matter, should have a special bank account (a) Hereicsert for the purpose of (a) , hereby apply to the Board of Trade to grounds of appli- authorise liira to njake his payments into and out of the bank. '^'"'°"' All cheques to be countersigned by , a member of the committee of inspection, and by for Dated this day of , 189 . Committee of Inspection. No. 44. Order of Board of Trade fob Specjal Bank Account. (TitU.) You are hereby authorised to make your payments in the above matter into, and out of, the bank. [Here insert any special terms.'] All cheques to be coun tersigned by , a member of the committee of inspection, and by Dated this day of , 189 . By order of the Board of Trade. To Liquidator. No. 45. lilST OF CONTEIDUTORIES TO BE MADE OUT BY LIQUIDATOR. (Title.) The following is a list of the contributories of the said company, made out by me from tlio books and papers of the said company, together with their respective a(l(lro8so8 and the number of shares [or extent of interest] to be attributed to each, so far as I have boon able to make out or ascertain the same. In the first jnirt of the list, the persons who are contributories in their own right am distinguitilied. In th(' second part of the said list, the persons who are contributories as being roprr.s('HtativL's of, or being liable to the debts of others, are dislinguished. FORMS, 1890. First Part. — Oontbibdtokies in their own Rioht. Y81 Form 46. Serial No. Name. Description. In what Character included. Number of Shares [or extent of Interest]. Second Part. — Oontributories as being Representatiyes of, or liable to THE Debts op cfHERs. Serial No. Name. Address. Description. In what Character included. Number of Shares [or extent of Ijiterest]. No. 46. Notice to Contbibtjtobies op Appoistment to settle LtsT of OONTRIEUTOBiES. {Title.) , the liquidator of the above-named day of , 189 , at Take notice that I, company, have appointed the of the clock in the noon, at (a) , in the county (a) Insert place of , to settle the list of the oontributories of the above-named "' ''PP"™""^'"- company, made out by me, pursuant to the Companies Acts, 1862 to 1890, and the rules thereunder, and that 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 shewn by you to the contrary at the time and place aforesaid, the list will be settled, including you therein. Dated this day of , 189 . Liquidator. To Mr. A. B. [and to Mr. C. B., ) his sdlioitor. J No. on List. Name. Address. Description. In what Character included. Number of Shares [or extent of Interest]. 782 POEMS, 1890. Form 47. No. 47. Cektifioate of Liquidator op Final Settlement op the List of contmbutomes. (TitU.) Pursuant to the Companies Acts, 1862 to 1890, and to the rules made thereunder, I, the undersigned, being the liquidator of the above-named company, hereby certify that the result of the settlement of the list of contributories of the above-named company, so far as the said list has been settled, up to the date of this certificate, is as follows : — 1. The several persons whose names are set forth in the second column of the First Schedule hereto have been included in the said list of contributories as con- tributories 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 lists 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 several persons respectively the date when such person was included in or excluded from the said list of contributories. 4. Before settling the said list, I was satisfied by the aflidavit of W. S. , clerk to , duly filed with the proceedings herein, that notice was duly sent by post to each of the persons mentioned in the said list informing him that he was included in each list in the character and for the number of shares [or extent of interest] stated therein, and of the day appointed for finally settling the said list. The FIRST SCHEDULE above referred to. FlKST PaKT. — CONTRIBUTOEIES IN THEIR OWN ElGHT. Serial No. in List. Address. Destription In what Character includtd. Number of Shares for extent of Interest] . Date wlien included in the List. Second Part. — Contribdtoribs as being Ebpresentatives op or liable to the Debts op Others. Serial No. In List. Name. Address. Description. In what Character included. Number of Shares \iyr extent of Interest]. Date when included in the List. FORMS, 1890. The SECOND SCHEDULE above referred to. 783 Form 48. Serial No. in List. Description. In what Character proposed to be included. Number of Shares [or extent of Interest]. Date when excluded from the List. Dated this day of ,189 (Signed) Licjuidator. No. 48. Notice to Contkibutoet of Final Settlement op List op Conteibdtobies, AND that his Name is included. (TiHe.) Take notice that I, , the liquidator of the above-named company, have, by certificate, dated the day of , 189 , under my hand, finally settled the list of contributories of the said company, and that you are included in such list in the character and for the number of shares [or extent of interest] stated below. Any application by you to vary the said list of contributories, or that your name may be excluded therefrom, must be made by you to the court within 21 days from the service on you of this notice, or the same will not be entertained. The said list may be expected by you at my office at (a) W Stale ad- on any day between the hours of and . ''^^'' Dated this day of , 189 . (Signed) Liquidator. To Mr. ) [or to Mr. > his solicitor]. j No. in List. Description. In what Character included. Number of Shares [or extent of Interest]. No. 49. Supplemental List op Oontkibutokies. (Title.) 1. The following is a list of persons'who, since making out the list of contributories herein, dated the day of , 189 , I have ascertained are, or have been, holders of shares in [or members of] the above-named company, and to the best of my judgment are contributories of the said company. 2. The said supplemental list contains the names of such persons, together with 784 FORMS, 1890. Form 50. tl^^ir respective addresses and the number of shares [or extent of interest] to be attributed to each. 3. In the first part of the said list such of the said persons as are contributoiies in their own right are distinguished. 4. In tlio second pai't of the said list such of the said persons as are contributories as being representatives of, or being liable to the debts of others, are distinguished. [JTie supplemental list is to be made out in the same form: as the original list."] No. 50. AFFIDAVIT OF SeBVIOE OF NotTIOE TO CONTKIBUTOBy. (,Title.) I, W. S., of &c,, clerk to , make oath and say as follows : — 1. The first six columns of the schedule now produced and shewn to me, and marked with the letter A., contain a true copy of the list of contributories of the said company, made out by the liquidator of the company on the day of , 189 , and now on the file of proceedings of the said company, as I know fr..m having (in the day of , 189 , examined and compared the said schedule with the said list. 2. I did on the day of , 189 , in the manner hereinafter mentioned, serve a true copy of the notice now produced and shewn to me and marked B., upon each of the respective persons whose names, addresses, and descrip- tions 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, 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 , 189 . Sworn, &c. No. 51. The Soheddle refekbed to in Fobm No. 50. A. This schedule marked A., was produced and shewn to W. S., and is the same schedule as is referred to in his affidavit s*orn before me this day of , 189 . W. B., &c. Numlier on List. Description. In what Cliaracter included. 6. Number of {or extent of Interest]. FORMS, 1890. 785 No. 52. Form 52. Okd-ek on Application to vary List of Contbibutokies. (Title.) Upon the applicatioTi of W. N. to review or vary the list of onntributoriea of the said company in respect of the inclusion of the said W. N. therein, and that his name may be excluded therefrom, [or, as the case may 6e], and upon hearing, &o , and upon reading, &o.. It is Ordered, That the name of the said W. N. be excluded Irom the said list of coiitributories, or may be included in the said list of contribu- tones for shares, [or, as the case may be'] [or tbe court doth not think fit to make any order on the said application, except that the said W. N. do pay to the liquidator of the said company his costs of this application, to be taxed by in case the parties differ]. No. 53. Notice bt Liquidatob bequikins Payment oe Money ob Delivbby of Books, &o., to Liquidatob. (Title.) Take notice that I, the undersigned (a) , have been appointed liqui- (a) Name of dator of the above-named company, and that you, the undermentioned (fc) , liquidator, are required, witliin days after serrioe hereof, to pay to me [or deliver,' (h) Name of convey, surrender, or transfer to or into my hands] as liquidator of the said company person to whoTa at my oflBce, situate at (c) , &c., the sum of £ , being the 5°'% '" '"*" amount of debt appearing to be due from you on your account with the said company ^^^^' ' [or any sum or bnlance, books, papers, estate, or effects], [or specifically deecnbe the ni^dAortofflcf property'] now being in your hands, and to which the said company is entitled [or otherwise as tJie case may he]. Dated this day of , 189 . (Signed) Liquidator. To (6) (^Address) No. 64. Notice to each Member of Committee of Inspection of Meeting foe Sanction TO Proposed Call. {Title.) Take notice tliat a meeting of the committee of inspection of the above company will be held at on the (a) day of , 189 , at («) To be a o'clock in the noon, for the piupose of considering and obtaining the sanction ^^^^ not less than of the committee to a call of £ per share proposed to be made by the liqui- thr^datJ^ when dator on the contributoriee. the notice will in Annexed hereto is a statement shewing the necessity for the proposed call and ^o^"® of pos* the amount required. reacii the person T\ 1. 1 J.^ ■ -f P -.^n *0 whom it 13 Dated this day of , 189 . addressed. (Signed) Liquidator. STATEMENT. 1. The amount due in reppect of proofs admitted against the company, and the estimated amount of the costs, charges, and expenses of the winding-up, form in the aggregate the sum of £, or thereabouts. 2. The assets of the company amount in value to the sum of £ . There are no other assets, except the amounts due from certain of the contributories to the company, and in my opinion it will not be possible to realise in respect of the said amounts more than £ 3. The ]ist of contributories has been duly settled, and persons have been settled on the list in respect of the total number of shares. 4. For the purpose of satisfying the several debts and liabilities of the company, and of paying the costs, charges, and expenses of the winding-up, I estimate that a sum of £ will be required in addition to the amount of the company's assets hereinbefore mentioned. 5. In order to provide the said sum of £ it is necessary to make a call on the con- tributories, and having regard to the probability that some of them will partly or wholly fail to pay the amount of the call, I estimate that for the piirpose of realising the amount required it is necessary that a call of £ per share should be made. {Annex tabular statement shewing amounts of debts, costs, , 787. affidavit of liquidator in support of proposal for (1862), 714 ; (1890), 787. affidavit in support of application for order for payment, of (1862), 715 ; (1890), 788. affidavit of service of order for payment of (1862), 717 ; (1890),, 789. general order for (1862), 715 ; (1890),, 787, notice of (1862), 715; (1890), 786. order for payment of, when due from contributory (1862), 716 ; (1890), 788. summons for intended (1862), 714 ; (1890), 786. XXVI INDEX. FORMS: COMPANIES ACT, 1862, AND COMPANIES (WINDING-UP) ACT, \8W—cnnlmued. Certificate of Oliief Clerk ns to debts and claims (1862;, 708. of settlement of list of oontributories (1862), 712. of company being completely wound up, and of the official liquidator having passed his final account (1862), 722, 723. of payment of money into Bank of England (1862), 717. Chairman report of result of meeting of creditors or contributories (1862), 719, 720 ; (1890), 768. authority to deputy to act as (1890), 767. Committee of inspection, notice to members of, for meeting to sanction call (1890), 785. advertisement of meeting of (1890), 786. resolution of, sanctioning call (1890), 786. certificate of, of audit of liquidator's accounts (1890), 795. Compromise, memorandum of agreement of (1862), 720, 721. sanction of judge to (1862), 721. Contributories, affidavit in support of list of (1862), 710. affidavit in support of supplemental list of (1862), 712. certificate of chief clerk of settlement of list of (1862), 712, 713. certificate of liquidator of settlement of list of (1890), 782. notice to, of settlement of list of (1890), 783. list of (1862), 710 ; (1890), 780. meeting of : See Forms : meeting. notice to, of appointment to settle list of contributories (1862), 711 ; (1890), 781. notice to, of first meeting (1890), 766. order on application to vary list of (1862), 714. supplemental list of (1862), 712 ; (1890), 783. Creditors, advertisement for (1862), 706. affidavit of, in proof of debts (1862), 706 ; (1890), 789. meeting of: See Fokms : meeting. notice to, of first meeting (1890), 765. list of, to be used at every meeting (1890), 768. notice to, of allowance of debt (1862), 707. notice to attend to receive debt (1862), 709. notice to come in and prove debts (1862), 707. Direction to open account at Bank of Eugland (1862), 705. Dissolution of company, order for (1862), 723. Dividend notice of intention to declare (1890), 791. notice of intention to declare final dividend (1890), 791. notice of (1890), 792. Investment, request for (18G2), 718. Liquidator, in compulsory -winding-up, advertisement of appointment of (1S62), 706 ; (1890), 778. advertisement of time and place fixed for appointment of (1862), 703. affidavit of, as to debts and claims (1862), 706. in support of application for order for payment of call due from con- tiibutories (1862), 715 ; (1890), 788. in support of list of contributories (1862), 710. in support of proposal for call (1862), 714. in support of supplemental list of contributories (1862), 712. appointment of solicitor to (1862), 705. certificate of, having passed his final account (1862), 722 723 order appointing (1862), 703 ; (1890), 778. provisionally (1862), 704; (1890), 765. order for payment of money, delivery of books, &c. (1862), 705. proposal for appointment of (1862), 70,5. recognizance of (1862), 704. sanction of appuintmont of solicitor to (1862), 705. sanction of judge for certain acts to be doue by (1862), 722. IJSTDEX. XXVil FORMS : COMPANIES ACT, 1862, AND COMPANIES (WINDING-UP) ACT, IS^O— continued. List of coutributories (18fi2), 710 ; (1890), 780. supplemental (1890), 783. London Gazette, forms for notices in (1890), 798. Meeting of creditors cr contribntories, advertisement of (1862), 718, 719. appointment of proxy to vote at (1862), 719 ; (1890), 793. chairman's report of result of (1862), 719, 720 ; (1890), 768. memorandum of appointment of person to act as chairman at (1862), 719. notice of (1862), 718, 719 ; (1890), 767. first meeting, notice to creditors of (1890), 765. notice to contribntories of (1890), 766. notice to directors and officers to attend (1890), 766. adjournment of, memorandum (1890), 768. Memorandum of agreement of compromise with contributory (1862), 720, 721. of appointment of person to act as chairman at meeting of creditors, &o, (1862), 719. of sanction of judge to accept bill of exchange (1862), 720. for certain acts to be done by the official liquidator (1862), 722. to agreement of compromise (1862), 721. Kotice to contribntories of appointment to settle list of coutributories (1862), 711 ; (1890), 781. to contribntories of settlement of list of coutributories (1890), 782. to creditors of first meeting (1890), 765. of allowance of debt (1862), 707. to attend to receive debt (1862), 709. to come in and prove their debts (1862), 707. of meeting of creditors or contribntories (1862), 718 ; (1890), 767. with order directing payment of money into Banir of England (1862), 717. of call (1862), 715 ; (1890), 786, 788. by liquidator requiring payment of money, &o. (1890), 785. Order appointing a liquidator (1862), 703 ; (1890), 778. appointing a provisional official liquidator (1862), 701 ; (1890), 765. on application to vary list of contribntories (1862), 714 ; (1890), 785. to dissolve the company (1862), 723. general, for a call (1862), 715 ; (1890), 787. for payment of call due from contributory (1862), 716 ; (1890), 788. for payment of money, &o., to official liquidator (1862), 705. for winding-up by the Court (1862), 702 ; (1890), 764. subject to supervision (1862), 702; (1890), 765. advertisement of (1862), 703 ; (1890), 765. of transfer from one Court to another (1890), 760. directing a public examination (1890), 778. appointing a time for public examination (1890), 778. Petition to wind up, advertisement of (1862), 702 ; (1890), 764. affidavit verifying (1862), 702 ; (1890), 764. form of (1890), 763. Postage of notices of meeting, affidavit of (1890), 767. certificate of (1890), 767. Proof of debt (1890), 789. ofworkmen (1890), 790. notice of rejection of (1890), 791. Proposal.for appointment of official liquidator (1862), 703. Provisional liquidator, order appointing official receiver to be (1890), 765. Proxy, general (1890), 793. special (1890), 794. Public examination, notes of (1890), 761. XXviii INDEX. FOKMS : COMPANIES ACT, 1862, AND COMPANIES (WINDING-UP) ACT, l%^0— continued. Public examination— conWnuetZ. order directing (1890), 778. order appointing time for (1890), 778. report to Court of refusal to answer (1890), 770. order that examination concluded (1890), 779. warrant against person who fails to attend (1890), 779. Kecognizanoe of the official liquidator and sureties (1862), 701. Eelease of liquidator, application for (1890), 795. statement to accompany application for (1890), 792. notice of intention to apply for (1890), 795. Request to invest cash in government stock or exchequer bills (1862), 718. Sanction of appointment of solicitor to ofHcial liquidator (1862), 705. Sanction of judge to accepting bill of exchange (1862), 720. to agreement of compromise (1862), 720, 721. for certain acts to be done by the official liquidator (1862), 722, Security, certificate of security given (1890), 778. Short-band writer, appointment of, to take examination (1890), 761. declaration of (1890), 761. Solicitor to official liquidator, appointment and sanction of appointment of (1862), 705. Statement of affairs (1890), 770-777. Summons for intended call (1862), 714; (1890), 786. for persons to attend at chambers to be examined (1862), 722 ; (1890), 780. Supplemental list of contributories (1862), 712 ; (1890), 783. Sureties for official liquidator, affidavit of (1862), 704, 705. recognizance of (1862), 704. Taxing officer, return by (1890), 761. register to be kept by (1890), 762. Transfer, order for, from one Court to another (1890), 760. notice of, to Board of Trade and Official Receiver (1890), 760. Warrant against person who fails to attend public examination (1890), 779. FORMS: COMPANIES ACT, 1867. Petition to reduce capital. Advertisement of presentation of petition, 733. of list of creditors, 734. of day fixed for hearing petition, 736. Affidavit verifying list of creditors, 732. list of persons who have sent in claims, 732, 733. List of creditors, 732, 733. Notice to creditor on proceedings to reduce capital, 733. to come in and prove debt, 735. Order giving directions as to proceedings, 732. FORMS : LIFE ASSURANCE COMPANIES ACT, 1870. Abstract of report of actuary, 036. consolidated revenue account, 657. summary and valuation of policies, 658. valuation balance-sheet, 659. Balance-sheet, 653. of company doing other than life business, 655. Revenue account, 652. of company doing other than life business, 654. Statement of life assurance and annuity business, 660. AUeraiion of the above forms by Board of Trade, 645. FRANCE, convention with, as to joint stock companies, 801 INDEX. XXIX FRAUD, contract induced by, is not void, but voidable, 116. in promotion of company is not ground for winding-up order, 216. must be proved in action of deceit, 125. shareholder cannot have damages against company in liquidation, 122, 123. transfer tainted ivith, 28, 31, 32. where articles give directors discretion to reject proposed transferee 28, 33-37. in companies in the Stannaries, 29, 30. trust affected with, 90, 436. fraudulent preference of creditors, 397. of directors, 399. by directors, does not usually bind company, 494. how far company liable for, 495. liability of directors for, 124, 498. must be personal, 127, 502. by not specifying contracts in prospectus, 570. FEAUDS, STATUTE OF, signature of chairman to minute approving agreement, 192. FRAUDULENT PREFERENCE in winding-up, 397. FRIENDLY AND PROVIDENT SOCIETY, unauthorized investment, right to recover, 92. winding-up of, 433, 434. may register under Companies Acts, 8. FUTURE PROPERTY, power of companies to charge, 169. GAIN, company not formed for, 9, 552. meaning of, 2. GARNISHEE ORDBK, garnishee is not creditor, cannot present winding-up petition, 223. moneys in liquidator's hands may be attached under, 686, does not give security until served, 238. GENERAL MEETING : See Meeting. GERMANY, convention with, as to joint stock companies, GOODS, payment for, by shares, 67. payment for shares in, 47, 49, 83, 553, et seq. GRATUITY i to company's servants, when majority may vote, 491. GUARANTEE, companies limited by, 9, 10, 18. to what companies applicable, 10. effect of winding-up on share capital of, 260, 325. of registration, liability of stock-jobber giving, 139. of dividends, by vendor to company, 514, 515. fund of insurance company, what it is, 11. HEARSAY EVIDENCE may be taken under Comp. Act, 1862, s. 115 .. 304, 305. HIGH COURT, jurisdiction of, in winding-up, 613. HUSBAND, contributory in respect of his wife's shares, 78, 79. liability of, 207. IDENTITY OF NAMES, prohibition of, 23, 24. IGNORANCE, director cannot plead, of proceedings of board, 500. ILLEGAL act, single shareholder may sue to restrain, 487. company for want of registration, action by, 5. winding-up of, 4, 5, 430. 3 H XXX IN'DEX. J.LLEGAL — continued. unauthorized investment, company's light to proceeds of, 92. OIPEUDENCE, dii-cctovs not necessarily liable for, 498. "INCIDENTAL OR CONDUCIVE," meaning of, 525. INCOME, how ascertained for purposes of dividend, 513. INCOME TAX, in case of new company which has bought jjartnership business, 159. in case of foreign company, 159. residence of company lor i^urposes of, 159. INCOEPOEATION, by charter and by statute, difference between, 15. certificate of: See Cbbtificate. INCREASE of capital : See Capital. of number of members : See Numeek of Members. INDEBTED, where member is, for refusal of registration of transfer, 458, 459. INDEMNITY, right of trustee of shares to, 88, 89, 90. quia timet action, 89. when company is cestui que trust, 88. quantum of, 90. right of vendor of shares to, from purchaser, 44, 135. from ultimate buyer, 136. from concealed principal, 136. from stockbroker, 138. from stock-jobber, 137. when " registration guaranteed," 1 39. right of, under Directors Liability Act, 1890 . . 637. as between past and jiresent members, 145, 147. proof in respect of, in winding-up, 349. costs of windiug-up, ^^hether payable under, in amalgamation, 298. INDUSTRIAL AND PROVIDENT SOCIETY, may register under Companies Acts, 8. power of investment under Act of 1876 .. 81. is a " person " within the Companies Acts, 80. winding-up of, 222, 433. INFANT, signature of memorandum by, 6, 21. allotment of shares to, liability of director cognisant of the infancy, 408. allottee bound by acquiescence, after majority, 76. contributory, delay by, in applying to be removed from list, 134. liability of jobber passing name of, as transferee of shares, 138. shaves taken in name of, 75. transferee, 42. liability of transferor as B, contributory, 147. status of, at commencement of windiug-up cannot subsequently be altered,3"20. transferor, 43. trustee of shares, attaining majority before the winding-up, 92. INFORMALITIES in transfer of sliares, immaterial, 454, 455, 456. except as governed by the articles, 132, 133. in making a call, 448. in forfeiture of shares, 475, 476. in voluntary winding-up, not a reason for a contributory's petition, 836. renders supervision order impossible, 338. INFORMATION, summons of persons capable of giving, 299. INJUNCTIONS to restrain registration in same or similar name, 24, 25. to restrain voluntary winding-up, whether competent, 318. INDEX. :i:xM I^TJUNCTIONS— coniwiuecZ. after presentation of winding-up petition, 232, 254, 258, 427, 43S, ■where application is to be made, 234. after commencement of voluntary winding-up, 233, 245, 246. on application of limited company, undertaking upon, 196. to restrain presentation of winding-up petition, 211. to stay payment of dividends out of capital, 616-518. INSOLVENCY, as ground for winding-up order, 217, 218, 264, 428, 429. wlien it can be predicated of a company, 217, 218, 219, 428, 429. meaning of commercial insolvency, 217, 218. supervision order in consequence of, 337. INSPECTION of accounts of going company, 519. of books by inspectors, 189. by member arbitrating under Comp. Act, 1862, s. 162 .. 393. by petitioner after winding-up petition presented, 347, 348. of documents at ofSoe of registrar, 415. of register of members, 95, 96. member's right to, 96. of register of mortgages, 161. of books of company in liquidation, 347, 348. of file of proceedings in winding-up, 695. under Companies (Winding-up) Act, 1890, of liquidator's periodical statement of proceedings, 623. of statement of affairs, 617. INSPECTOES, examination of affairs of company by, 188. examination of books by, 189. power of company to appoint, 189. report of, to Board of Trade, 189. to be evidence, 190. INSTALMENTS, order on contributory to pay by, 689. INSURANCE, iwovislon aa to restriction of liability in policy of, 142. nature of contract for, 374, 376. INSURANCE COMPANY, definition of, 1. compulsory registration of, 441. statement to be published by, 177. winding-up of, 430. mutual, sale of property of, 393. INTEREST, on calls, in arrear in going company, 452. which were in arrear when winding-up order made, 452. after forfeiture of shares, 477. on capital, payment of, before profits earned, 518. on debentures, payment of, during construction, 518. where place of payment specified, 213. dividends not to carry, 519. in winding-up, on calls, 199. on company's credit balance with Board of Trade, 625. on debts and claims, 685, 686 ; (1890), 750. when creditor can obtain, 368 ; (1890), 750. after judgment only 4 per cent., 370. effect of winding-up order on company's contract to relieve third party from payment of, 369. supervision order stops, from commencement of voluntary winding-up, 370. voluntary winding-up does not stop, 370. INTERNAL ADMINISTRATION, when Court will interfere in, 509, 510. INVESTMENT of moneys standing to credit of ofiSoial liquidator, 691, 718. unauthorized, company's right to recover, 92. 3h2 xxxli INDEX. IRELAND, enforcing orders made in, 309. . , .. restraining proceedings in, where company is being wound up in England, 2o5, dOi>. ISSUE OP SHARES, meaning of, 564. ITALY, convention witli, as to joint-stock companies, 802. JOBBER : See Stook-Jobbeh. JOINT AND SEVERAL, liability of directors, 128, 407, 408, 501. JOINT HOLDERS OF SHARES, liability of, 206. receipt for dividends in case of, 445. service of notices in case of, 522. vote in case of, 488. JOINT STOCK COMPANIES ACTS, definition of, 416. application of Comp. Act, 1862, to companies formed under, 417. application of Comp. Act, 1862, to companies registered but not formed under, 417, 418. registration of companies registered under, 418-420. mode of transferring shares in companies registered under, 418. JOINT STOCK COMPANY, definition of, 420. JOINT TENANT of shares, 206, 437. JUDGE IN CHAMBERS, power of, 231, 699, 730 ; (1890), 738. JUDGMENT DEBT, cannot be impeached for fraud, on winding-up petition. 212, JUDICATURE ACT, 187.5, s. 10 . . 365. applies unless company shewn to be solvent, 367, 368. is not retrospective, 365. effect of, as to charge by company of all its future property, 169. execution against company in liquidation, 238. distress for year's arrears of rent, 239. rates, 242, 366. rights of secured creditors, 363, 365. set-off in winding-up, 287, 358. wages of servants, 367. secured creditor's right to costs of appearing on winding-up petition, 251. JUDICIAL NOTICE to be taken of signature of ofScers, &c., 315. JURISDICTION for rectification of register of members, 98. as between members and company, 98. as between members and alleged members, 98. whether discretionary as between member and company, 101. in what cases given, 102. in cases of specific performance, 99, 101. of County Court in winding-up, 222. 433, 434. of Stannaries Court in winding-up, 193, 221, 222. to order payment of debts by contributory is not to be restricted to uncontested oases only, 288 : ami sfc Powers of Coukt. service of summons out of, 309, 403, ti97, 698. service out of, may be made of notices {e.g. to settle list of contributories), but not of prooess, 309, 687, 697. " JUST AND EQUITABLE," 208, 428. winding-up order, when made under these words, 215, 216. " KNOWINGLY ISSUING," under Comp. Act, 1867, s. 38, meaning of, 574. KNOWLEDGE of director, whether knowledge of company, 502. not imputed to director of all entries in company's books, 27, 01. INDEX. XXXlli LACHES in applying to be removed from list of contributories, 130, 131, 132, 131. to put member on list of contributories, 135. to rectify the register, 130, 134. for relief against forfeiture, 476. in calling upon directors for indemnity, 129. in impeaching improper transfer, 36. no bar to proceeding against directors for misrepresentation, 129. LAND, power of companies to hold, 20, 423. prohibition against certain companies holding, 25, 26. licence to hold may be given by Board of Trade, 25, 26. form of, 583. LANDLOED, distress by, after winding-up, 234, 239, 240, 241, 396. by company's lessor, 239. by stranger to company, 239. is not secured creditor in respect of right of distress, 239, 367. re-entry by, after winding-up, 239, 242. LAND SOCIETIES are legal without registration, 3. LEASE, trustee of, for company, proof by, in winding-up, 348. how indemnified, 240. to company, claim in winding-up in respect of future rent, 355. security given to lessor on reduction of capital, 547. LEAVE to proceed with action after winding-up order, effect of not obtaining, 254. how obtained, 258. LEGAL TITLE to shares, when it passes, 95. LETTER, notice of allotment of shares by, 61, 62, 63. service of notices by, on company, 190. on members, 522. on contributories and creditors, 697. LIABILITY of B. contributories, how limited, 148. of banking company in respect of issue of notes, 420. of member of registered company, liow it may be limited, 8. may be extended by special agreement, 9, 16, 142. of member of unlimited company may be restricted in respect of a particular con- tract, 142. of contributories of registered company, 141. different classes of contributories, 143. under Comp. Act, 1862, s. 38, is a new liability, 142. is a specialty debt, 198, 260, 325. of existing company registered under the Comp. Act, 1862 . . 424, 425, 426. of unregistered company, 435, et seq. incurred iu winding-up must be paid in hill, 243. of shareholder whose interest has been purchased under Comp. Act, 1862, s. 161 .. 394. where number of members less than seven, 180. person who has agreed to become member cannot escape, 79. transfer to escape, when valid, 27, 28, 29. when fictitious and invalid, 28, 30, 31. in companies in the Stannaries, 29, 30. of directors, 495, et seq. may be unlimited, 535. under Directors' Liability Act, 1890 .. 124, 633. of estate of deceased director in an action, 404. XXXiv INDEX. LIBEL, jurisdiction to restrain, 212, 67G. TJCENCE of Board of Trade, to liold land, 2.'), 26. form of, 533. for certain companies to register without word " limited,' 552. LIEN, effect of winding-up upon, 397. production of documents subject to, in winding-up, 300, 305. on sbares, where bill taken for debt to company, 460. company cannot assert in priority to charge with notice, 87. for debt of cestui que trust, 87. under Table A., 458. not available against transmittee, 460. can be enforced against trust sliares, 87, 46L how enforceable, 461. of solicitor, on fund recovered in winding-up, 296. for costs incurred before winding-up, 296. none on file of proceedings in winding-up, 696 : and see Solicitors. of vendor, whether to be registered under Comp. Act, 1862, ». 43 .. 163. LIFE ASSURANCE COMPANIES, 642-667. actuarial report and abstract, 644. deposit to be made by, 643, 661, 662. Board of Trade Eules as to, 669. life assurance funds to be kept separate, 643, 663. statements to be made by, 644. to be signed, printed, and deposited with Board of Trade, 645. to he laid before Parliament, 651, 663. upon amalgamation or transfer, 647. petition to confirm amalgamation or transfer, C46. provisional liquidator of, 250. winding-up of, 648. for non-compliance with Life Assurance Companies Act, 1870 . . 648. of subsidiary company, 663, 664, 665. power of Court to reduce contracts of, instead of making winding-up order, 650. LIMITATIONS, statute of, winding-up order stops running of, against creditors, 271, 370, 371. when available under Comp. Act, 1862, s. 165 . . 411. no time short of, relieves director attacked for fraud, 129. "LIMITED," omission of, after name of limited company, 161. may be omitted in case of associations formed not for profit, 552. power for company to add to its name, when it registers as limited, 422, 423. IJMITED AND UNLIMITED ASSETS, apportionment between, of sum received on compromise, 207, 298, 388, 438. LIQUIDATORS IN VOIiUNTARY WINDING-UP, appointment of, 322, 323. by creditors, 325. by Court, 328, 329. at preliminary metting, 323. filling vacancy in office of, 328. usually appointed official liquidators when compulsory order made, 342. arrangement with respect to power's of, 325. may impose condition on traiisftr of shares, 320, 321. rxercise of powers by, 322. powers of, 322. to settle list of contributovios, 322, to make calls, 322. 1(1 enforce call ninde by directors, 325, 446. lo apply to Court to determine any question, 326, 327. to call general meetings, 32S. to accept shares, &e. , as consideration for sale of property of company, 389. to compromise with creditors and contributories, 384, 385. cannot delegate their powers to one of their number, 324. are to call meeting at end of voav, 328. INDEX. XXXV LIQUIDATORS IN VOLUNTARY "WINDING-UP— conWrnied. are on conclusion of winding-up to make up an account, 330. are to report to registrar meeting lield at conclusion of winding-up, 330 are not personally responsible for costs where assets iusufiicient, 275, 382- costs as between liquidator and mortgagees, 332. , removal of, by Court, 329. remuneration of, 322. service of petition for supervision order upon, 676. supervision order in consequence of misconduct of, 337. survivor of two liquidators cannot act, 324. LIQUIDATORS IN WINDING-UP BY COURT, 264-280. provisional : See Pkovisional Liqcidatok. meaning of, in winding-up under supervision, 341. accounts to be kept by, 682, 683, 689-692 ; (1890), 754. must be brought in on application of any contributory, 683. admissions by, inadmissible, 278. aflSdavit of, as to debts and claims, 684 : anH see Fokms. appeal by, 314. appeal to Court against (Act 1890), 627. application for rectification of register by, 102. applications by, in name of company, 279. appointment of, under Act of 1862 .. 264, 680, 681. at heariug of the petition, 264, 681. provisionally, 233, 265, 341, 342, 682. advertisement respecting, 681. advertisement of appointment made, 682. who should be appointed, 265, 266. whether will be varied by Court of Appeal, 266. rules adopted by the judges as to, 267, 268. in ease of amalgamated companies, 268. in case of subsidiary life assurance company, 663, 664, 665. where voluntary winding-up superseded by compulsory order, 268. where supervision order is superseded by a compulsory order, 342. appointment of, under Act of 1890 . . 745. books to be kept by (Act 1890), 625. conduct of particular matters may be given to one of several, 265. control of Board of Trade over (Act 1890), 627. filling vacancies in ofBce of, under Act of 1862 . . 269, 328, 340, 682. appointment of solicitor to, under Act of 1862 .. 280, 699. costs, is not liable to his own solicitor for, 275, 280, 296, 332. whether liable to adverse litigant for, 273, 274. costs of, on appeal, 274, 275. appeal will lie for, 274. discovery from, 272. discretion of (Act 1890), 627. endorsement of bills by, 276, 279. final report of Board of Trade on accounts (Act 1890), 626. loans by, of moneys in hand, are most improper, 276. under Act of 1890, may by leave have an account elsewhere than at Bank of England, 621, 747. may, with sanction, employ solicitor, 622. meetings, power to summon, 626. meetings to determine as to liquidator other than official receiver, 616. must before acting notify his appointment to registrar and give security, 615. no longer styled official liquidator, 615. official receiver to be, unless the Court appoints another, 617. periodical statements by (1 890), 753. power of Court to require delivery of property to, 284. powers of, 276, 622 : and see the Rules of 1890, passim. to accept shares, &c., as consideration for sale of property of company, 390. to compromise with creditors and contributories, 385, 386. exercise of powers by, without sanction of Court, 280. release of, under Act of 1890 .. 626. release of, rules as to (1890), 756. remuneration of, 269, 683 ; (1890), 757. where assets insufficient, 296. rent, liability of, for, 241, 242. representative character of, 272. XXXVl INDEX. LIQUIDATORS IN WINDING-UP BY COUET— co)*'«Mt'/. repreeentative character of — eontinued. how far entitled only as representing the company, 118. resignation and removal of, 269, 328, 340, 682. sale by, 278. security to be given by, 265, 269 ; (1890), 746. statement periodically as to proceedings under Act of 1890 .. 623, 752. style and duties of, 271, 680-683. action instituted by, 277. to account to Board of Trade under Act of 1890 . . 625. to give notice to policy-holders of value of policies, 667. to pay moneys to Companies Liquidation Account under Act of 1890 . . 621 validity of acts of, 192. and see Forms. LIQUIDATORS IN WINDING-UP UNDER SUPERVISION, appointment of, 340. powers of, 340, 385, 386. exercise of, 341. removal of, 340. security to be given by, 340. and see LiQuiDATOKS in Wikdisg-vf by Cotjkt. LIQUIDATORS, validity of acts of, 191, 192. enforce new rights in winding-up, 118, 119. LIS PENDENS, winding-up petition to be, 299. LIST OF MEMBERS, to be made annually, 83. penalty for not forwarding, 85 LITERARY SOCIETY, winding-up of, 435. LOAN SOCIETIES, are illegal unless registered, 3. winding-up of, 434. LONDON GAZETTE, rules as to insertions in (1890), 756. LOSS, company carried on at, jurisdiction to wind up, 21G. LOST CAPITAL, writing off, 538, 585. LUNATIC MEMBER, vote of, how given, 488. MAJORITY, power of, to alter constitution of company, ISO, 181. of creditors or contributories, regard to wishes of, 260, 338, 391, 692. must use their vote for the benefit of the class, 583. MANAGEMENT, of company's affairs by directors, 492. MANAGER, meaning of, 193. and see Special Manageh. MANDAMUS to call meeting, 480. MARITIME LIEN, when to be enforced in the winding-up, 257. MARRIAGE of female member, disposal of shares upon, 462. MARRIED WOMAN can bo a shareholder, 79. contracting in rospoct of separate estate, 207. contributory in respect of shares of, 79. cannot bo sottlcd in absence of husband, 207. MKANING of language, responsibility for popular sense of, 127. INDEX. XXXVll MEETINGS of company, 180. to be held witWn four months after registration, 579. general holding of, 479, 527. extraordinary, power of directors to summon, 480, 527. irregularly convened, cannot pass valid resolutions, 480. requisition for, directors must comply with, 480. mandamus to oaU, 480. when Court will call in going company, 480. notice of, 481, 527. need not be served on member abroad, 187. of business to be transacted at, 481. proceedings at, 481, 527. evidence of, 191, 192. provision where no regulations as to, 186, 187. definition of special business at, 481, 482, 527. quorum of members at, 482, 527. one shareholder does not make, 479. adjournment, common law right of, 483. poll, common law right to demand, 484. proxy paper does not authorize proxy to demand poll, 483. poll should not always be taken at once, 483, 484. voting goes by numerical majority unless poll demanded, 484. motion need not be proposed or accepted, 484. of creditors and contributories holding of, in winding-up, 260, 261, 338, 581. general order as to, 692 ; (1890), 743 : and see Fokms. under Winding-up Act, 1890, liquidator's power to summon, 626. to determine as to committee of inspection, 616. to determine as to liquidator other than official receiver, 616. regulations as to, 630. of creditors, power of Court to order, to decide as to compromise, 581. of company in voluntary liquidation, 479, 480. power of liquidators to call, 328. liquidators to call at end of year, 328. at conclusion of winding-up, 330. whether directors can only act in, 509. MEMBERS, definition of, 44. who are, 45. who have agreed to become, within Comp. Act, 1862, s. 23 . . SO. bearer of share warrant may be, if regulations so provide, 567. annual list of, 83. penalty for not forwarding to registrar, 85. assent of all to act which is ultra vires, 14. liability of present and past, 141 : See Liability; Contbibutoet. member de facto cannot escape, 79. list of, to be kept by life assurance companies, 645, 646. notice of increase of number of, where capital not divided into shares, 97. persons improperly registered as, are entitled to order of Court to remove name, 102. register of, 82 : See Eegistee. to be evidence, 141. is not conclusive, 44. requisition by, to hold extraordinary general meeting, 480, 527. service of notices on, 522, 529, 697. when abroad, 187. votes of, 484, 528. less than seven, ground for winding-up order, 208, 215. penalty on, carrying on business when, 180. See also Shakeholdek ; Conthibutobt. MEMOKANDXJM OF ASSOCIATION, 6. of company limited by shares, 9. XX.fvlii INDEX. MEMORANDUM OF ASSOCIATION— con«i)i«£(?. of company — continued. limited by guarantee, 9, 10. unlimited, 11. copies of, to be supplied to members, 23. how binding on the members, 11, 12. contract and liability of subscriber of, 46. may be subscribed by foreigners, 7. alteration of, by certain companies, 12. power of altering, how to be exercised, 16. by cancellation of unissued shares, 587. under Comp. (Mem. of Ass.) Act (1890;, 610. contemporaneous articles may explain, 8, 15. differing from prospectus, 107. cannot be extended by articles, 13. matters not properly within, whether capable of alteration, 16. majority cannot agree to depart from, 180, 181. not capable of enlargement even with assent of every member, 14. contracts ultra vires whether capable of ratification, 14. forms of, 525-530. liability defined by, to be strictly adhered to, 8. registration of, 19. effect of, 19, 20. signature of duplicate of, 50. signature of, by an agent, 6, 50. signature by infant, 6. stamp, signature and effect of, 11, 12. unalterable except in certain specified particulars, 12. MINIMUM, number of directors when .below, 509. MINORITY, right of, to sue as to matters relating to the company, 486. MINUTE to be approved by Court in case of reduction of capital, 547, 548. form of, 549, 587. registration of, 547, 548. to be embodied in memorandum of association, 549. MINUTES of resolutions and proceedings to be evidence, 191, 102. whether director bound by, 500. MISDESCRIPTION of transferee, whether material, 28, 29, 33-36. material where directors have discretion in accepting proposed transferee, 28, 33-36. MISFEASANCE, meaning of, in Comp. Act, 1862, s. 165 . . 400. liability of director or promoter for, 399-412, 620. who may apply to enforce, 400. to individuals, whether enforceable by liquidator, 400. for non-disclosure, 408. whether Statute of Limitations available, 411. whether discharge in bankruptcy releases from, 411. non-payment whether ground of committal, 411. no set-off in case of, 411. claim for may be assigned, 278, 411. damages, how ostimatcil in cases of, 410. rules as to application under Act 1890, s. 10 .. (1890), 747. MISREPRESENTATION of agent, when imputable to company, 93, 103, 104, 105, 124. of company, does not affect contract to purchase shares from a third party, 130. in prospectus, 103. what constitutes, 106. instances of, 108, 109. damages, measure of, 129. acquiescence after discovered, 114. INDEX. XXXXX MISjREPEESENTATION— coniwtted. in prospectus — continued. right to relief in oousequence of, although it was not sole inducement, 124. as against creditors, 115. as against the company, 110-115, 124, as against the directors, 124, 125. directors' liability for, 501: ■what is sufficient for the purpose of remedy, 124-129. laches is no bar to, 129. after winding-up commenced, 115. original allottee only can complain of, 130. action for relief on ground of, 130. wilful as to proposed transferee, 28, 33, ei seq. to individuals, whether liquidator can enforce claim in respect of, 400. MISTAKE, of law, money paid to liquidator under, 272. money paid by, when recoverable, 27i, 405. MONEY'S WORTH, payment for shares in, 47, 83, 449, 553. provisions in articles as to payment in, 48. MORTGAGE, power of companies to effect, 164. register of, 161 : See Register of Moktgages. affecting property of company, effect of non-registi'ation of, 161, 162. of calls whether valid, 167. of policies of insurance, novation in case of, 378. of shares, who are contributories in case of, 73, 74. by transfer in blank and deposit of certificates, 454, 455. of qualification shares, by directors, 56. MORTGAGE DEBENTURE ACT, 17. MORTGAGEE of shares, whether contributory, 73, 74. when mortgage by deposit, 74. priority not according to notice, 86, 87. of company's property, may sue for foreclosure notwithstanding winding-up, 256. distress by after winding-up' commenced, 242. priority of, in respect of costs, 332. MORTMAIN ACT, shares in incorporated or unincorporated company owning land are not within, 26. MOTION, may be put without being proposed or seconded, 484. MUTUAL CREDITS, bankruptcy rules as to, are applicable in winding-up, 358, 367. MUTUAL INSURANCE CLUBS, winding-up of, 5. MUTUAL INSURANCE SOCIETIES, are formed for acquisition of gain, 2, 434. sale of property of, 393. unstamped policy in, 349, 437. MUTUAL SOCIETY, form of memorandum and articles of association of, 526. winding-up of, 434. NAME OP COMPANY, power of companies to change, 17, 18. in case of identity, 23, 24. by adding " limited," 422, 423. call made during change of, 448. prohibition of identity of, 23, 24. publication of by limited company, 160. right to sue in, 486. to whom given in winding-up, 487. what actions must be brought in, 486, 487. Xl INDEX. NEGLIGENCE, on part of directors, liability for, 498. NEGOTIABLE INSTRUMENT, how far scrip or bonds to bearer may be, ,363. NOMINEE, bona fide purchase of shares in name of, 91. putting shares in name of, in unregistered company, 430. of company, transfer to, 41. NOTES, liability of banking company in respect of issue of, 420. of limited banking company in respect of, 590. promissory: See Peojiissoet Notes. NOTICE of allotment : See Allotment. .authentication of, by company, 190. forms of: See Forms. of assignment of debt due to creditor of company, 686. of business to be transacted at general meeting, 481. at adjourned meeting, 483. of call, 448. of consolidation, and re-division of capital, 85. of conversion of capital into stock, 85. to company, to be sent to registered office, 158, 190. casual notice to secretary insufficient, 74. to director -whose liability is to be unlimited, 536. director whether deemed to have, of proceedings of board, 502. of dividend declared, 519. of intended forfeiture of shares, 464, 476. of declaration of forfeiture of shares, 474, 475. of equitable title, eifect of giving to company, 454. how far company may disregard, 87. ; of general meetings need not be served on members abroad, 187. conditional notice invalid, 186. of increase of capital and of members. 97. to policy-holders under Life Assurance Companies Act, 1870 .. 650, 651. of rectification of register, 141. in reduction of capital and shares, to creditors abroad, 545, 546. of intention to propose a resolution should be clear, 184. of proposing resolution to wind up voluntarily, 317. of resolution passed to wind up voluntarily, 321. of situation of registered office, 160. of trust to company, 86, 87. to witness summoned under Comp. Act, 1862, s. 115 . . 302. what is sufficient to found case of acquiescence, 466, 468, 472. service of, on members by the company, 522, 529. on contributories and creditors, 697. on company, 158, 190. when sent by letter, 190. NOTICES need not be under seal, 190. NOVATION OF CONTRACT, 371-384. must be tripartite, 372. in amalgamation of joint stock companies, general considerations as to, 371, 372, 376, 378. by receipt uf payments of annuity, 372, 373, 380. of interest on a deposit or debt, 372. by payment of premiums and taking receipts, 373, 376, 380, 381, 666. by claim made on new company, 373, 378, 381. by aecoptanoo of bonus, 375, 378, 382. by talcing ondorsemont on policy, 375, 378, 382. by policy-luildor who is also shareholder, 375. in case of a policy in settlement, 377. by policy-holders, provision of Life Ass. Comp. Act, 1872, as to" 666. statutory onaotnicnt, eifect of, 383. INDEX. xU NUMBER OF MEMBERS, in company whose capital is not divided into shares, articles to state, 18. notice of increase of, to be given to registrar, 97. NUMBER OF SHARES, 26, 425. omitted in transfer, 4.56. person wlio does not hold any numbered shares may be a shareholder, 456. to be inserted in contracts for sale of bank shares, 639. contract registered nnder Comp. Act, 1867, s. 25, need not specify denoting numbers, 564. OBJECTS described in Mem. of Ass., alteration of, 610. OFFICE OF COMPANY, registered : See Eegisteked OrFiOE. OFFICER OF COMPANY, director continues to be, notwithstanding winding-up, 306, 324. salary due to, &t date of winding-up, 349, 350. deprived of his post by winding-up, proof by, 350, 351. misfeasant who was, at any time in the course of the misfeasance may be attacked under Comp. Act, 1862, s. 165 . . 405. power of Court to assess damages against, 399. public examination of, 618. trustee for the company is not, within Comp. Act, 1867, s. 38 .. 576, OFFICIAL LIQUIDATOR style of official liquidator confined to official receiver, 615, and see Liquidatobs in Winding-up by Coubt, OFFICIAL RECEIVER is alone to be styled official liquidator, 615, is to be liquidator during any vacancy unless Court appoints another, 616. is to be provisional liquidator after winding-up order made until liquidator appointed, 246, 615. is to summon meetings to determine as to liquidator and committee of inf spection, 616. may apply for appointment of special manager, 616. may be appointed debenture-holder's receiver, 616. may be appointed provisional liquidator at any time after petition presented, 246, 616; (1890), 742. may present petition for winding-up order in certain cases, 225, 226, 622. preliminary report to Court, 618. — right of, to information and access, 615. statement of affairs to be submitted to, 617. general rules as to (1890), 758.1 ORDER to wind up company : See Winding-up Obdee. made in winding-up, appeal from and rehearing of, 310, 311. is binding unless appealed within the time limited, 313. which is a nullity, may be discharged after time for appealing expired, 313. made upon contributory, to he conclusive evidence of moneys due, 291, drawing up of, 694. enforcement of, 308, 309. made by one Court, enforcement of, by another Court, 310. made in England to be enforced in Ireland and Scotland, 309. confirming reduction of capital, 545. registration of, 547, 548 : and see Foems. ORDER AND DISPOSITION, • shares, whether in bankrupt's, 74. where certificates deposited with a mortgagee, 455. OVER-DEAFT, is borrowing, 172. PAID-UP SHAREHOLDER, is a contributory, 198, 225, 292. can present winding-up petition, 225. will not be put on list of contributories against his will, 198. will not be put on list to be brought within Comp. Act, 1862, s. 101 . . 198, 289. adjustment of rights in favour of, 292, 293. may be refused order under Comp. Act, 1862, s. 35 . . 103. a^ii INDEX. PAID-UP SHAEES, iigreement to take, 70. certificates of, when compauy estopped by, 557. contract to take, -when allottee liable for unpaid shares 558 damages in winding-up where for default of registered contract the shares are unpaid, 123, 563. holder of, may sometimes be attacked for misfeasance, 409. transfer of shares as, 42. liability of transferee, 70, 83, 93, 557. PAT.ATINE COURT, jurisdiction of, in winding-up, 613. PAEI PASSU, distribution, favoured by the Court, 322, 323. PARLIAMENTARY DEPOSIT, how available for creditors after abandonment, 283. PARTIES, attendance and appearance of, in winding-up, 696. PARTNERSHIPS, exceeding certain number, prohibition of, 1, 2. banking, of not more than ten persons, 534. firm may be shareholder, 81. unregistered, winding-up of, 427, 433. PAST MEMBER, liability of, as contributory, 141, 148 : See Liability ; CoNTBiBrTORY. where no present member liable, 145. in companies governed by the Stannaries Act, 438. ill unregistered companies, 438. in companies not formed under Comp. Act, 1862 . . 426. PAUPER, liability of jobber passing name of, as transferee of shares, 137. transfer to : See Transfer to escape Liability. PAYMENT, for shares in money's worth, 47, S3, 449, 553. in cash, meaning of, 554. evidence of, 557. in shares for goods supplied, 67. for shares, company wound up before due, 68, 69. of call whether duly made, 450 : and see Call. of debt, when creditor can safely accept, 226, 345. of part of petitioner's debt, 345. into Court, of stock and shares, 44. PENALTY, on certain companies not registering, 442. for not holding meeting within four months after registration, 579. for not having registered office, 158. for not sending copy of articles, &o. , to member, 23. for non-registration of special resolution, 187. for not annexing copy of special resolution to articles, or forwarding copy to registrar or member, 187, 188. for not embodying in memorandum of association special resolution as to unlimited liability of directors, 536, 537. as to subdivision of shares, 551, 552. minute, shewing reduced capital, 550. for default in complying with Comp. (Mem. of Ass.) Act, 612. for issuing share warrant not duly stamped, 568. for concealment of name of creditor in reduction of capital, 550. for falsification of books, 412. for refusing to produce books to inspectors, 189. for refusing inspection or copy of register of members, 96. for not keeping, or refusing inspection of register of mortgages, 161. for not keeping proper register of members, 82, 83. for not making and forwarding proper list of members, 85. for not keeping register of directors, 178. for not giving notice to directors whose liability is to be unlimited, 536, 537. for not giving notice of increase of capital and members, 97. for perjury, 413. INDEX. xliii PENALTY— con(tii«e(?. on persons forging share warrants or coupons, 568. on persons falsely personating owner of shares, 568. on persons engraving plates for share -warrants or coupons, 568, 569. for non-publication of name by limited company, 160. for non-publication of statement by certain companies, 177. for default in making statement of affairs, 617. for not reporting dissolution of company, 299. on liquidators not making periodical statement of proceedings, 623. on voluntary liquidators not sending return to Kegistrar at conclusion of winding- up, 330. for non-compliance with Life Assurance Companies Act, 1870 . . 648. for falsifying statements required by Life Assurance Companies Act, 1870 . , 648. recovery of, 191. staying proceedings for, after petition presented, 234. under Life Assurance Oomp. Act, 1870 . . 648. application of, 191. PEEJUEY, penalty of, 413. PBBSON includes body corporate, 80. Industrial and Provident Society, 80. PEESONAL EEPEBSENTATIVE, liability of, as contributory, 204, 290. transfer by, 82, 461. PETITION, application for winding-up to be made by, 223. for order confirming alteration of objects, 610. for winding-up order, who may present, 223, 579, 580, 622. in case of " subsidiary " Life Assurance Company, 663, 664, 6 65. grounds for presenting, 208, 219. "just and equitable," 215, 216, 428. by creditor, 209, 223, 334. when debt disputed, 211, 220. for less than £50 . . 219, 224. claim for unliquidated damages will not support, 224. by debenture-holder, 210, 212, 213. by landlord for current rent, 224. by official receiver, 225, 622. by secured creditor, 224. by shareholder, 208, 224, 333, 579, 580. dejure though not de facto, 224. paid up, 225. in arrear in payment of calls, 224. after voluntary winding-up commenced, 833. by scrip-holder, 231. by holder of share- warrant, 224. where number of shareholders small, 209, 215. adjournment of, 247. advertisement of, 673 ; (1890), 742. is notice of its presentation, 344, 675. affidavit in support of, 678, 679 ; (1890), 743. amendment of, 229, 248. cannot be sold and assigned, 223. copies to be furnished to contributories and creditors, 679 ; (1890), 743. costs of: See Costs. usual order as to, 249. security for by petitioner, 226. demurrable, unless it alleges some ground for an order, 229. dismissal of, 226. formof(1890), 742, 763. hearing of, 247. who will be heard, 247. injunction to restrain presentation of, 211. orders made upon, in different cases, 261. must be secundum allegata et probata, 229. xliv INDEX. PETITION— eorefinwcd. for winding-up order — continued, petitioner is entitled to dismiss, 220. priority by date of advertisement, 674. provisional official liquidator should not appear upon, 246, 247, 250. publication of, in newspaper, contempt, 675. rehearing of, 252, 253. is not within Comp. Act, 1862, a. 124 .. 311. without fresh advertisement, 674. second, may be dismissed with costs, 227, 228. service of, upon the company, 676 ; (1890), 742. on unregistered company, 435, 678. title of, 672, 673, 724 ; (1890), 742, 763. transfer of, 229, 253, 254, 255 ; (1890), 738. wliere two petitions in different branches of the Court, 229, 253. where there is more than one petition, 253, 254. unopposed will be so heard, 247. withdrawal of, what costs petitioner should demand, 227. for supervision order by contributory, 336, 337, 338, 339. by creditor, 337, 339. gives jurisdiction over suits and actio 340, 341. service of, 338. upon liquidator, 338, 676. for order confirming reduction of capital, 545, 725. advertisement of presentation of, 725. of day fixed for hearing of, 729. of order upon, 729. appearance of creditor at hearing of, 729. minute to be approved by Court : See Minute. order upon, 545, 729, 730. securing claims of creditors who do not consent, 729. title of, 725 : See Reduction of Capital. to confirm amalgamation, &o., of life assurance companies, 646, 647. PETITIONER, death of, before hearing of petition, 674. statutory afBdavit, where corporation is, 679. "PLACE" agreement to place shares, effect of, 75. PLAINTIFF, who may join company as, 486. POLICY-HOLDER, nature of contract with, 373, 374, 370. novation of contract by : See Novation. proof by, in winding-up, 353, 666. concurrent against amalgamated companies, 383. POLICY OF INSURANCE, provision as to restriction of liability in, 142. unstamped, proof upon, 349, 437. POLL, at general meeting, how to be taken, 484. proxy cannot demand, 483. common law right to demand, 484. ought not always to be taken at once, 483, 484. at election of directors, 507. on question of adjournment, whether demandable, 483. POST : See Lettee, POWER OF COMPANIES, to alter nioraoraiulum, 12. how to bo exercised, 16. under Comp. (Mom. of Ass.) Act, 1890 .. 610, et seq. to alter articles of association, 180, 181, 182 : See Alteeation. to change name, 17, 18. by adding "limited," 422, 423. temporary, to change registered office, 443. INDEX. y:lv POWER OF COMPANIES -coJiMnued. to increase capital : See Capital. to reduce capital : See Reduction of Capital. to borrow : See Boehowing. to forfeit shares, 464. to issue preference shaves, 182, 514. to convert shares into stock : See Stock. to make or accept bills or notes, 179. to mortgage, 164. to refer matters to arbitration, 197. to appoint inspectors, 189. to close register of members, 96. for existing company to register stock instead of shares, 421, 422. POWEES OF COURT, ordinary, 280, 299. extraordinary, 299-308. cumulative on its ordinary jurisdiction, 308. may be exercised by judge in chambers, 231. exercise of, in winding-up under supervision, 341. to adopt proceedings of voluntary winding-up, 335, 336. to make supervision order, 336. to appoint and remove liquidators, in winding-up by Court, 264, 269, 680, 681. provisionally, 233, 265, 341, 352, 682. in winding-up under supervision, 340. where supervision order superseded by compulsory order, 342. in voluntary winding-up, 328, 329. to arrest contributory and to seize his goods, 307. to assess damages against delinquent directors and oificers, 399, 620. when to be exercised, 403. applicable to voluntary winding-up, 403. does not apply as against executor of deceased director or officer, 404. to make calls, 289. to make vesting order in case of unregistered company, 439. to order contributories in Scotland to pay calls, 308. to call meetings of creditors and contributories, 260, 261, 338, 581. to order payment into Bank of England, 290. to make rules, 413, 414. nnder Comp. Act, 1867 .. 550. to order examination of persons in Scotland, 315, 316. to order delivery of property to official liquidator, 284. to order payment of debts by contributory, 285, 286. to rectify register of members, 97, 98, 280, 281. to compel inspection of register of members, 95, 96. to compel inspection of register of mortgages, 161. to reduce contracts of life assurance company, instead of making winding-up order, 650. to restrain actions after presentation of winding-up petition, 232, 427, 438. to give leave to proceed with action after winding-up order, 254, 255, 256, 257, 427, 438. to sanction compromise, and bind minority of creditors, 681. to stay proceedings in winding-up, 259. to summon witnesses, persons suspected of having property of company, cSo., 299, 300, 307, 315. to enforce orders, 308, 309. POWEES OF DIEEOTOES, regulations as to, 492, 528 : See Dibectobs. directors are trustees of, 496. POWEES OF LIQUIDATORS : See Liquidatoes. PRACTICE, general practice applicable in winding-up, 700. PREFERENCE SHARES, increase of capital by issue of, may be authorized by original articles, 182. power to issue, 182, 514. with preference in repayment of capital, 295. in case of building society, 173. rights of in reduction of capital, 543, 544. 3 1 xloi INDEX. PRELIMINAKY EXPENSES, liability of company for, 492. liability of directors for sums improperly voted, 407. PREMIUMS, payment of, by policy-holder, aB affecting novation : See Novatiok. for purpose of proof on policy, 353. PRICE, of dissentient shareholder's interest, mode of determining, 395. "PRINCIPAL COMPANY," meaning of, after amalgamation of life assurance companies, 664. PRIORITY, where there are several winding-up petitions, 674. in payment of costs in winding-up, 251, 296, 331, 332. of charges on shares, not given by notice to company, 454. after notice Hopkinson v. Bolt applies to company, 87. PROCEEDINGS of directors, 508 : See Dibeotoes. at meetings, 481, 527. evidence of, 191, 192. in winding-up, register and file of, 69.J ; (1890), 755. right of creditors and contributories to attend, 696. staying, 259. in voluntary winding-up, adoption of, when compulsory order made, 33.5, 356. PRODUCTION, in winding-up, of books, &c., 299, 300. before commissioners receiving evidence, 315. of documents subject to lien by solicitor, 300, 305. to inspectors, 189. to auditors, 521, 528. PROFIT, company formed not for profit, special provisions as to, 552. what is, for payment of dividend, 513. reduction of capital by " returning," 593. director may not make, out of company, 504, 505, 506. and loss, to be shown in statement, 520. PROMISSORY NOTE, power of company to make, 179. form of making, on behalf of company, 160, 178. qusere, whether instrument under seal of corporation can be, :.63. power of liquidator to make or accept, 276, 279, 693. PROMOTER, definition of, 575. fiduciary character of, 405, 575. what contracts by, are to be specified in prospectus, 570. agreement by, with trustee for company, form of, 525. fraud of, right of company to reseissiou or repayment, 575, 576, 577, 578. liability of, 404, 405, 408, 409, 575-579. in case of deceased promoter, 403. under Comp. Act, 1S62, s. 165 . . 408, 409. to shareholders personally, 574. public examination of, 618. repayment by directors of payments made by, 406. summary remedy against, 620. PROMOTION MONEY, liability to refund, 405. PROOF OP DEBTS, in bankruptcy, against estate of bankrupt transferee, 201. against estate of bankrupt contributory, 198, et »eq., 276, 279. in roduotioa of capital, 545, 546, 726, 727, 728. costs of, 728, ill wiudiiig-up, what is admissible to, 848. time limited for, 291, 683, 684. INDEX. xhii PROOF OF DEBTS— continued. in winding-up — continued. general order as to, 683 ; (1890), 7S0. by annuitant, 354, 666. of contingent claims, 348, 355. which are ascertained during winding-up, 356. by contributory who has bought up a debt of the company, 353, by company's lessor in respect of future rent, 355. by officer of company deprived of Ms post, 349, 350. by policy-holder, 353, 666. concurrent iu case of amalgamated companies, 383. by secured creditor, 363. costs of, 686; (1890), 750. cannot be double in respect of same debt, 364. proceedings in Stannaries Court upon, 291, 292. Statute of Limitations does not ruu after winding-up order, 271, 370 371 . PROPERTY OF COMPANY, meaning of, 323. dispositions of, between presentation of petition and winding-up order. 312. fraudulent assignment of, 898. order for delivery of, to liquidator, 284. possession of, by liquidator or Court, 264, 271. sale of, 276, 278, 324, 389, 688. summons of persons suspected of having, 299, 300. transfer of, on registration, 423, 424. vesting order in case of unregistered company, 439. PROSECUTION of delinquent directors in winding-up, 412. PROSPECTUS, specification of contracts in, 570. what contracts ought to be specified, 570. non-disclosure does not give right to rectification of register, 106, 107, 574. statement of contents of documents in, responsibility for, 1 10. is addressed only to original allottees, 130. concealment of material facts in, 107. change of facts after issue of, 108. variance between prospectus and memorandum, 107. misrepresentation in, 103 : and see Miseepkesentation. what constitutes, 1 06. instances of, 108. original allottees only can complain of, 130. acquiescence after discovery of, 114. directors named in prospectus are prima facie responsible for, 128. measure of damages, 129. right to relief in consequence of although not sole inducement, 124. right to relief after winding-up commenced, 115. right to relief against promoters personally, 574. right to relief against directors, 124. right to relief under Directors' Liability Act, 1890 . . 124, 633. responsibility of director for issue of, by oo-directois, 128. PROVIDENT SOCIETY, statement to be published by, 177. winding-up of, 222, 433 : See Industeial Society. PROVISIONAL LIQUIDATOR, appointment of, 233, 246, 265, 341, 342, 615, 616, 682 ; (1890), 742. does not fix commencement of winding-up, 319. for a limited purpose, 265. in urgent case, without company's consent, 246. after winding-up order, 265. when appointed, 246. in case of Life Assurance company, 247. ofiicial receiver to be, after winding-up order made until liquidator appointed, 246, 615. may be appointed as soon as petition presented, 246, 616. costs of, 250. restriction of powers of, 280. 8i2 xlviii liN'DEX. PROVISIONAL ■LlQMWKTOn-conlinued. should not appear on hearing of petition, 247, 250. rules as to official liquidators apply to, 696 : See Liqoidator in winding-up by Court. PKOXY, voting by, 488, 528. form of, 488, 489, 528. directors issuing at company's expense, 489. in blank, whether valid, 489, 490. St meeting in winding-up, 692, 693; (1890), 752, 793. corporation may give, 489. can be given only to a member of the class, 693. does not authorize proxy to demand a poll, 483. signature to, as evidence of membership, 61. no common law right to vote by, 489. stamp on, 489. PUBLIC COMPANY, meaning of, 3. PUBLIC EXAMINATION, of promote]-, director, or officer, 618. rules as to (1890), 746. PUBLICATION of petition or evidence in newspaper, contempt, 675. PURCHASE by company of its own shares, 41, 81, 539, 540, 541. QUALIFICATION of director, meaning of the word, 50. meaning of holding " in his own right," 56. whether required of directors appointed by the articles, 52, 53, 54. result where qualification is condition precedent to election, 53. Companies Act, 1862,, does not provide for, 490. ■whether du'ector has agreed to take from the company, 51. if acquired by misfeasance remedy is under Comp. (^ Winding-up) Act, 18 90, s. 10 ..51,406. shares however acquired will qualify, 56. fraudulent transfer of qualification shares, 31. share warrant to bearer does not give, 567. mortgage of shares, which form, 56. of directors, liquidators, &c., defect in, 191, 192, 510. QUORUM of directors, 508. is necessary to make valid call, 446. when reduced below the minimum, may act, 446, 503. of members at general meeting, 482, 527. statute must be read subject to provisions in articles as to, 482. RAILWAY COMPANIES, Arbitration Act, 1859 ., 197. what companies are, within Comp. Act, 1862, a. 199 .. 431. can thpy register under the Comp. Acts, 432. winding-up of, after warrant of abandonment obtained, 431, 432. RATES, liability of company in winding-up for, 242, 366. RATIFICATION by company after withdrawal of applioation, 57. by company of acts ultra vina by directors, 493. REALIZATION OF ASSETS, costs of, how to be bome, 297. REASONABLE TIME, application based on ^nisrepresBntation must be made in. 111. where delay caused by negotiation with oompunv, 114. RECEIPT fur dividends in ease of joint holders of shares, 445. for premium, evidence of, as establishing novation of contract, 374, 378, 381 : See Novation. INDEX. xlix RECEIVER,: creditor who has special remedy by, may be refused winding-up order, 213. for debenture holders, official receiver may be appointed, 616. of property of company, liquidator is proper person to be, 266. mortgagee of undertaking may obtain, 168. of railway undertaking, under BO & ai Vict. c. 127, s. 4 . . 284. RE-CONSTRUCTION, when Court will sanction, 391. RECTIFICATION of register of members, 97, 98, 280, 281. "without sufficient cause " (Comp. Act, 1862, s. 35), 103. "default or unnecessary delay" (Comp. Act, 1862, s. 35), 130. transfer to be registered must be free froiji objection, 132. on application of liquidator, 102. costs of application, 139. form of, 141. laches in applying for, 129, 132. notice to registrar of, in certaiu companies, 141. order for, is not ex debito justitiai, 102. cannot he obtained for non-disclosure of contracts under Comp. Act, 1867, s. 38 . . 106, 574. in case of paid-up shareholder, 103. whose shares issued without registered contract, 565. in case of B. contributory, 133, 281. where shares issued at a discount, 561. service of notice of motion for, on liquidator, 140. in companies in the Stannaries, 140. after winding-up order made, 280, 281, 687. in winding-up under supervision, 281, 325. EEDTJCTION of shares, not allowed by Comp. Act, 1862 . . 15, 537. transfer after, 551. of capital and shares, under Comp. Act, 1867 . . 537. under Comp. Act, 1877 . . 548, 725. Gen. Order, March, 1868, applies to, 548. evidence necessary, 549. general effect of the Acts, 537, 538. meaning of " capital," 538. whether purchase by company of its own shares is, 539. whether payment of dividend out of capital is, 516, 541, 542. advertisement of list of creditors in, 727. creditors may object to, 546. creditors remaining passive whether taken to have assented, 547. objecting creditor's debt may be secured, 547, 727, 728. lessor to company must be secured, 356, 547. notice to creditors abroad, 545, 546. debenture-holders, how affected with notice, 546. petition for order confirming, 545, 725 : See Petition. settUng list of creditors in, 726. order confirming, 545. form of minute to be registered, 547, 548. saving of rights of creditors ignorant of proceedings, 519. " and reduced," how long continued, 545. where articles confer no power, how effected, 17. by writing off lost capital under Comp. Act, 1877 .. 537, 538, 585, where there are preference and ordinary shares, 543, 544. by "returning" profits under Comp. Act, 1880 .. 593. by returning money with power of recall whether legal, 541, 595, 596. of contracts under Life Assurance Comp. Acts, date to be4aken, 650. RE-ENTRY, exercise of power of, after winding-up commenced, 239, 242. REGISTER of directors in certain companies, 178. of members, 82, 83. in " one or more books," 83. to be evidence, 141. I INDEX. EEOISTER— conW»)!i«Z. of members — continued. is not conclusive, 44, 45. inspection of, 95, 9U. power to close, 96. trusts not to be entered on, 85. not recognizable as between company and member, 485, 486. entries in, where share warrant issued, 567. re-registration of hearer of share warrant in, 566. rectification of : See Eeotifioation. person improperly entered on, is entitled to order of Court to remove his name, 102. cannot be subject of solicitor's lien, 296. of mortgages affecting property of company, 161. inspection of, 161. effect of non-registration in, as regards officers of the company, 161, 162, Ibi. of proceedings in winding-up, 695 ; (1890), 755. EEGISTEEBD OFFICE, company to have, 158. definition of, in Gomp. (Winding-up) Act, 1890 . . 630. notice to registrar of situation, 160. in case of unregistered company, 427. service where company has no office, 158, 677 : See Sebviob. temporary power for companies to change, 443. EEGISTEAR OF JOINT STOCK COMPANIES, constitution of, 414. certificate of incorpor.ition, effect of, 20, 423. list of members to be sent to, 84. penalty for not sending, 85. notice to, of consolidation and conversion of shares, 85 notice of trusts not to be received by, 85. notice to, of increase of capital and members, 97. of order rectifying register, 141. of registered office and any change, 160. list of directors to be sent to where capital not divided into shares, 178. copy of special resolution to be sent to, 187. order for winding-up to be sent, 258, 259. order confirming alteration of objects to be registered with, 612. order for dissolution to be reported to, 299. return to be made to, of meeting approving accounts in voluntary winding-up before dissolution, 330. right to inspect documents kept by, 415. documents to be delivered to, on registration of existing companies, 420, 421. may require evidence as to nature of company before registering, 422. certificate from, of registration of existing company, 423. order confirming reduction of capital and minute to be registered with, 537, 547, 548. what the minute is to show, 586. contract in writing to be filed before issue of shares not to be paid for in cash, 553. certified copies of documents registered with, to be evidence, 587. re-registration by, of company under Comp. Act, 1879 . . 592. special resolution for " return " of accumulated profits to be registered, 596. names of defunct companies to be struck off register, 597-599. Board of Trade may transfer to, documents required by Life Assurance Companies Act, 1870 . . 648. EEGISTEATION of memorandum and articles, 19. effect of, 19, 20. of mortgage aifecting property of company, 161. eilect of neglect of, 161, in companies in the Stannaries, 163. of order and minute confirming reduction of capital, 547, 548. of transfer, company not bound to give notice of refusal of, 39. " guaranteed," liability of stock-jobber buying with, 139. transferee must see to, 566. of company, for what companies compulsory, 2, 441. INDEX. li EEGISTRATION— conii)i«ed. of company — continued. ' after winding-up petition presented, 346. certificate of : See Cektifioate. if invalid, leaves company an " unregistered company," 346. illegality for want of, consequence of, 2, 430. of unlimited company -with limited liability, 424. of existing companies under Oomp. Act, 1862 . . 418. in what cases compulsory, 2, 441. effect of, 424, 425, 426. where registration compulsory, 426, 441, 442. of debentures under Bills of Sale Acts, 169. requisition for, 421. authentication of statements required for, 422. not to effect obligations incurred previous to registration, 424. liability of contributory after, 424. continuation of existing actions and suits, 424. property of company to vest upon, 423. of companies already registered under Comp. Act, 1862 . . 588. of unlimited company with limited liability under Comp. Act, 1879 . . 588. of contract under Comp. Act, 1867, s. 25 . . 553, et seq. damages for default of, 123, 563. company's duty to see to, 563. of company's bill of sale, whether necessary, 169, 170, 171. fees, exemption of certain companies from, 422, 442. REGISTEATION OFFICE, constitution of, 414. REGULATIONS OF COMPANY: See Articles of Association. EE-HBAEING of winding-up petition, 252, 253. without fresh advertisement, 674. not necessary in order to supersede supervision by compulsory order, 342. of appeal is not within Comp. Act, 1862, s. 124 . . 311. of orders made in winding-up, 310. EELEASE of liquidator, 626 ; (1890), 756. EEMOVAL of directors, 507. of liquidators by Court, in winding-up by Court, 269. in winding-up under supervision, 340. in voluntary winding-up, 328, 329. of member of committee of inspection, 620. EEMUNEEATION of auditors, 520, 528. of directors, 491. may be postponed to outside creditors, 142, 491. of liquidators in voluntary winding-up, 322, 331. of liquidators in winding-up by Court, 269, 683 ; (1890), 757. where assets insufficient, 296. of special manager, 616. power to fix, 628. EENT claim in winding-up in respect of future, 355. securing company's lessor, when capital of company reduced, 356, 547. due from company in liquidation, distress for as against company, 239, 240, 241. on debenture-holders' goods left on company's premises, 240. liquidator's liability for, 241, 242. apportioned amount of current rent will not support winding-up petition, 224. apportionment of, before and after winding-up, 239. right to distrain for, is not " security," 239, 367. EENT-CHAEGE liability for, in winding-up, 357. EEPEAL OF ACTS, 440, 533. saving clause as to, 440, 441. Ui INDEX. EEPORT final, of Board of Trade ou liquidator's accounts, 626. of inspectors, 189. to be evidence, 190. preliminary of official receiver, 618. at conclusion of voluntary winding-up, 330. of actuary under Life Assurance Companies Act, 1870 . . 644, 645. KEPEBSENTATIVE case, where shareholder can avaU himself of, 119. costs as between solicitor and client ought not to be given in, 282. contributory, 204. administration of estate in case of non-payment by, 204, 290. provision as to, 284. of creditors or eontributories, appointment of, 696, 697. costs of, 697. EEPUTED OWNERSHIP, does not apply in winding-up, 366. REQUISITION for meeting, directors must comply with, 80. RESCISSION, right to, where insufiScient shares allotted, 22, 23. of contract by company for fraud, 575. alternative right to retain the property and recover the profit, 577. of contract to take shares, impossible after winding-up commenced or initiated, 115, 116. requisites for maintaining, 106, 110, 111. RESERVE FUND, power to set apart, 518. RESERVE LIABILITY, creation of, 589. amount of, not considered on question of insolvency, 216. RESIDENCE of company for purpose of Income Tax, 159. RESOLUTION, extraordinary, definition of, 317. special, definition of, 183. copy to be sent to registrar, and annexed to articles, 187. at general meeting how to be carried, 483. evidence of passing of, 184, 186. RESTRAINT OF TRADE forfeiture for breach of rules in, whether valid, 465. RESTRICTIONS on powers of provisional liquidator, 280. on powers of liquidators in winding-up under supervision, 341. RESUMING BUSINESS after winding-up commenced, 259, 391. REVENUE AND CAPITAL, adjustment of accounts between, 512, 513. whether revenue account wholly distinct from capital account, 513, 514. EIGHT, meaning of holding shares " in his own right," 56, 88. ROTATION and election of dirootors, 506, 507, 528. RULES, power of Courts to mnko, 413, 414. under Comp. Act, 1867 . . 550. power to make, under Corap. (Winding-up) Act, 1890 . . 627. ST. LEONARD'S (LORD) ACT, distribution of shareholder's assets under, 204. SALARY, puyiuont of arrears of, due at winding-up, 349 : and see Eemuneration. INDEX. liii SALE, power of, company may acquire by registration, 419, 420. of business and property of company, how impeached if invalid, 392. of property of company, 276, 278. liquidator's power of, 278. in voluntary winding-up, 324. liquidators may accept shares, &o., as consideration for, 389. whether applicable in compulsory winding-up, 390. under Comp. Act, 1862, s. 161, must be to a company, not to an individual, 393. distribution of proceeds of, 394. clause in agreement of, 392. to foreign company, 393. general order as to, 688. of shares, refusal to approve purchases, 38. SANCTION of the Court, to acts of the ofBoial liquidator, 276, 280. how obtained, 693. may be given by Chief Clerk, 388. power may be given to'ofBcial liquidator to act without, 280. under Trustee Savings Bank Act, contributory in case of, 436. winding-up of, 435. SCHEME, general, of liquidation may be sanctioned, 384, 385. SCOTLAND, effect of noting trusts on register in, 86. enforcing orders made in, 309. English Court will restrain actions in, after winding-up commenced, 255, 309. examination of persons in, 315, 316. contributories in, power to order payment of calls by, 308. afSdavits how to be sworn in, 316. security for costs by person resident in, 310. SCRIP, whether holder of, is contributory, 69, 198. winding-up petition by holder of, 231. of foreign loan is negotiable, 363. SEAL, company to have, 20, 160. forged use of, 21. possession of, is not indispensable for use of company's name, 487. notices need not be under, 190. certificate of shares under, 92. execution of deeds abroad under, 188. SECEETAEY, company not prima facie liable for his representations, 105. SECURED CREDITOR, effect of Judicature Act upon rights of, 363, 365. right of, to appear on winding-up petition, 250. to present winding-up petition, 224. proof by, in winding-up, 363-367. landlord is not, in respect of his right to distrain, 239, 367. are within Arrangement Act, 1870 . . 582. SECURITY, for costs, when to be given by limited company, 194. by company in liquidation, 195. when company appeals from winding-up order, 195, 251. amount of, 195. application may be renewed in the course of the action, 195. by claimant resident in Scotland, 310. by petitioner out of jurisdiction for winding-up order, 226. who has presented liquidation petition, 226, by shareholders opposing the petition, 226. liv INDEX. SECURITY— cont^ Allotment. is uot necessarily " issue," 564. cniiccllation of, 80. annual snniraary of, S3, 84, applioatidii for : See Application. calls on, 4-15, et seq. : See Calls, distribution of testator's assets without providing for, 204. INDEX. Iv SHAKES — continued. cancellation of, 183. by company purchasing its own, 41, 81, 539, 540, 541. under Comp. Act, 1877 .. 585, 587. cancelled, liability as contributory in respect of, 145. certificate of, 92, 445. renewal of, 445. classes of, with different rights and liabilities are legitimate, 45, 143. company purchasing its own, 41, 81, 539, 540, 541. consolidation of, 12, 85. conversion of, into stock, 12, 85, 478. Court, how to be brought into, 44. disclaimer of, by trustee in bankruptcy, 202, 321, 463. discount, whether shares can be issued at, 560, 561. equalization of payments on, in winding-up, 141, 292. equitable title to, how far company may disregard, 86, 87. estopped from denying validity of, 73. forfeiture of, 463-478 : See Forfeituee. issue of, what is meant by, 564. under provision restricting vesting till conditions satisfied, 69, 70. issue of new, under modified memorandum, 12. regulations as to, 478. joint holders of: See Joint Holders. joint tenancy in, 206, 437. legal title to, when it passes, 95. mortgagee of, contributory, 73, 74. priority not according to notice, 454. numbers of, 24, 456. person who does not hold any numbered shares may be a shareholder, 456. order and disposition in bankruptcy, 74. paid up, agreement to take, 70. allotment of, to subscriber of memorandum, 49. conversion of, into stock, 12, 85, 478. some may be, and others not, 562. transferee, without notice of shares certified to be, is not liable, 42, 70, 83, 93, 5,57. warrants for, to bearer, 566 : and see Paid-up Shareholder. payment for, in money's worth, 47, 83, 449, 553. in cash, unless otherwise determined by contract duly filed, 553, 554. i in advance, 453. payment for goods in, 67. purchase by company of its own, whether legal, 41, 81, 539, 540, 541. reduction of : See Eedbotion. relief from contract to take, 106, et seq. after winding-up commenced, 115, 116. on proceedings taken before winding-up commenced, 119. sale of property of company in consideiation of, 389. dissentient shareholder cannot be compelled to take, 393, 394. sale of, refusal to approve purchaser, 38. sale of testator's business for, 78. set-off of, against shares, invalid, 48. stock, conversion into : See Stock. subdivision of, 550, 551. transferee without notice, of shares certified to be fully paid is not liable, 42, 70, 83, 93, 557. transfers of, 453-461 : See Transfer. by one of several executors, 82. directors' power of making, 27. how transferable under the Comp. Acts, 26. after illegal subdivision, 551. transmission of, of deceased bankrupt or married member, 460, 461-463. in joint stock banking companies, contracts for sale to be void unless denoting numbers set forth in contract 639. hi INDEX. SHAREHOLDERS, corporate bodies and partnership firms can be, 7, 81. married women can be, 79. partnership firm may be, 81. persons who hold no numbered shares may be, 456. " in their own right," meaning of, ."Se, 88. may be of different classes with different rights, 45, 113. list of, 83. to be kept by life assurance companies, 645, 646. paid-up : See Paid-up Shakeholdek. petition by, for winding-up order : See Petition. action by, on behalf, &o. , 486. See also Member ; Contmbutoet. SHARE WARRANT TO BEARER, 534. effect of, 566. is transferable by delivery, 566. holder of, may be " a member," if regulations so provide, 567. ■whether he can present a winding-up petition, 224, 580. does not give qualification as director, 567. entries in register, and annual summary in respect of, 507. stamp on, 567, 568. penalty on forging, 568. SHERIFF, possession of, before winding-up petition presented, 235, 236. „ after winding-up petition presented, 236, 237. SHIP, English corporation may own British ship though all shareholders are foreigners, 8. SHORT-HAND, whether depositions may be taken by, 305. SHORT-HAND NOTES, of examination taken in winding-up (1890), 739. SIGNATURE of articles of association, 19. of memorandum of association, 11, 12. by agent, 6, 50. of officers, judicial notice to be taken of, 315, 316, 317 of manager, whether signature of company, 496. SOLICITOR of company, unregistered charge in favour of, 162. lien of, in winding-up, 305 :' See Likn. was not within Comp. Act, 1862, s. 165 .. 403. to liquidator, under Act of 1862, appointment of, 280. duties of, 699. under Act of 1890, appointment of, 622. lien of, on fund recovered in winding-up, 296. none on file of proceedings in winding-up, 696. liquidator is not personally responsible to, for costs, 275, 280, 296, 332. SOLICITOR AND CLIENT, costs as between, ought not to be given in representative case, 282. cannot be given under Comp. Act, s. 35 . . 140. SPECIAL CASE from County Court or Stannaries Court, 615. SPECIAL COMMISSIONERS for receiving evidence, 315. SPECIAL EXAMINER: 5ee Examinek. SPECIAL MANAGER, nffleial receiver may apply to Court to appoint, 616, 743. security by, and remuneration of, 616, 746. uooounls of, 759. INDEX. Ivii SPECIAL RESOLUTION, definition of, 183, 184. invalid if not fourteen days' interval, 184. notice to be given of intention to propose, 184. for voluntary winding-up advertisement of, 321. registration of, 187. copy of, to be annexed to articles, 187, 188. SPECIALTY DEBT, moneys payable by members under the articles are, 19. liability of contributory creates, 198, 260, 325. unpaid capital of company limited by guarantee, 260, 325. SPECIFIC PERFORMANCE of contract for purchase of shares, 38, 98, 99, 100, 101. where transferor resident abroad, 39. not enforced in winding-up, 343. of agreement to forfeit shares, 474. jurisdiction to rectify register in cases of, 98, 99, 100, 101. STAMP ad valorem on agreements to be filed under Comp. Act, 1867, s. 25 . . 564. on articles of association, 19. on memorandum of association, 11, 12. on letter of allotment, 59. on proxy paper, 489. on securities to bearer, 164. on share warrants, 567, 568. on transfer of shares, 458. STANNARIES, companies within jurisdiction of, 2, 221, 222. contributory of, when unregistered, 438. discount for prompt payment of calls in, 452. duties of registrar in liquidation of, 268, 269. inspection of register of mortgages of, 161, 177. limitation of liability of past shareholders of, 438. meetings and proceedings in, 180. rectification or inspection of the register in, to what Court application should be made, 97, 140. registration of debentures, 163. shares, forfeiture, of, 466. relinquishment of, 352, 353, 464. transfer by indebted member of, 459. transfer to avoid liability in, 30. wages of miners, &o., due at date of winding-up of, 350. Court, winding-up in, 193, 221, 222. jurisdiction of, in winding-up, 613. jurisdiction of vice-warden of, 193. power of vice-warden of, as to hearing winding-up petitions, 231. , to what companies jurisdiction extends, 222. power of, to enforce orders, 308. special case from, 615. special provisions as to question of lien, 306. past members, limitation of liability of, 438. proceedings upon proof of debts in winding-up, 291, 292. appeals from, 310. STATEMENT OP AFFAIRS, preparation of (1890), 745, 770. costs of preparing, 617. inspection of, 617. to be submitted to official receiver, 617. to be verified by directors, 617. STATEMENTS _ to be made by directors to general meeting, 519, .')2n. to be made annually by certain companies, 177, 525. by life assurance companies, what are to be made, 644. in case of amalgamation or transfer, 647. to be sigaed, printed, and deposited wit he Bi irl of Tra'le, ('An. Iviii INDEX. STATEMENTS— co»K»«ei. by life assurance companieB — continued. to be laid before Parliament, 651, 663. copies to be given to shareholders, 645. to bo received in evidence, 648. penalty for falsifying, 648. STATUS, alteration of, after commencement of winding-up by or under supervision of the Court, 342. of voluntary winding-up, 320. STATUTE OF LIMITATIONS: See Limitations. STAYING PROCEEDINGS in voluntary winding-up, 260. in winding-up, 259. STOCK, conversion of paid-up shares into, under modified memorandum, 12. notice to be given, 85. effect of, 85. regulations as to, 478. certificate of, effect of, 92, 93. power for existing company to register, instead of shares, 421, 422. dividends in respect of, 478. transfer of, 478. voting in respect of, 478. STOCK EXCHANGE, rules and usages of, as affecting contracts for purchase of shares, 135, 136. STOCKBROKER, liability of, to indemnify vendor of shareS) 138. STOCK-JOBBER, liability of, to indemnify vendor of shares, 137. SUBDIVISION OF SHAKES, 550, 551. SUBMISSION to judge, appeal against order not entertained, 223. SUBSCRIBE for shares, meaning of the word, 128. SUBSCRIBERS of memorandum of aBsocintion, 6. foreigners may be, 7, 8. contract and liability of, 46. discharged if all the shares are allotted to other persons, 46. /allotment of puid-up shares to, 16. articles as to directors do not necessarily apply to, 446. are directors until directors appointed, 490. SUBSIDIARY COMPANY, in life assurance companies, winding-up of, 663, 664, 665. SUIT, power of, in name of public officer, reserved to certniu compnnies, 534. when leave given to proceed with, after winding-up order, 254. leave to institute, given on ex parte motion, 2oS. by liquidator, 277. in foreign country, not stayed by windinp:-up, 255. whether company can be wound up in, -Vol. and see Action. SUMMARY, annual, of capital and shares, 83, 84, 532. particulars as to share warrants in, 567. SUMMONS, Bcrvico of: See Sekvioe ; Notice. in winding-up, of peisons suspected of having property of company, 299, 300. of perscjns deemed capable of giving iuibrmatiou, 300. who may apply for, 300. what notice witnoBs is entitled to, 302. how to be obtained in voluntary winding-up, 302. to examine alleged contributory in chambers, 687, INDEX. lix SUPERVISION OEDER, power of Court to make, 336. on contributory's petition, 336, 337, 338, 339. on creditor's petition, 337, 339. on petition praying compulsory order, 337. not on claim for unliquidated damages, 337. in consequence of liquidators' misconduct, 337. effect of, 340, 341. petition for : See Petition. rectification of the register of members after, 280, 281, 325. when superseded by compulsory order, appointment of liquidators, 342. date of commencement of winding-up, 232, 342. re-hearing not necessary, 342. SUPPLEMENTAL OEDER for winding-up, where previous order made, 248. SURETY FOE COMPANY, right of, to proportion of dividend from secured creditor, 364, 365. SURPLUS ASSETS, distribution of, in winding-up, 292, 293, 294, 295. distribution of, in specie, 295. SUEEENDEE, transfer which in fact operates^s, is invalid, 41. of inchoate right to shares, 54. of shares, 41, 47, 475. and see Shakes, purchase by company of its own. SUEVIVOE of two liquidators cannot act, 324. SUSPENSION of business for a year, ground for winding-up order, 208, 213, 428. TABLE A., 445-522. application of, 19, 445. not to apply to companies not formed under Comp. Ajii, 1862 .. 417, 425. power to alter, 196. TABLE B. OF JOINT STOCK COMPANIES ACT, 1856. saving clause as to repeal of, 440, 441. power to alter, 417. "TAKEE-IN" of shares, liability of, to indemnify vendor, 139. TAXATION of bill of costs delivered after winding-up commenced, 271. of costs in winding-up, 699 ; (1890), 740. rules as to (1890), 740. TELEGEAM contract made by, when complete, 63. TENANT FOE LIFE of shares, right of, to bonus, 512. TEEMINATION of winding-up, 298, 698 : and see Dissolution of Company. TEADE UNION, cannot register under Companies Acts, 4. registration of, 25. TEAMWAY COMPANY is not a railway company within Comp. Act, 1862, s. 199 . . 432. TRANSFER OF ACTIONS after winding-up order made, 234, 254, 255. TEANSPEE OF BUSINESS, how impeached if invalid, 392. TEANSFEE OF WINDING-UP PEOCEEDINGS •;?■- from one Court to another (1890), 738. TEANSFEE BOOKS, closing of, 461. Ix INDEX. TRANSFER OF PETITIONS where several winding-up petitiona in different branches of the Court, 229, 253, 254, 255. TRANSFER OF PROCEEDINGS in winding-up, 614, 738. TRANSFER OF SHARES, 26, 82, 453-461, 565, 566. IB to be effected in manner provided by the articles, 26. provisions as to, 453, 458. dividends as between transferor and transferee, 458. form of, 458. by deed, whether necessary, 453. in blank, effect of, 453. by delivery, whether valid, 457. in companies registered under Joint Stock Companies Acts, 418, 457. by one of two executors, 463. certification of, 75, 454. legal title when passed, 95. registration of second transfer of same shares, 457. right to make in case of shareholder, 26. when indebted to company, 458, 459. in case of director, 27, 32. in case of personal representative of deceased member, 82. by one of several executor.", 82. other persons who are not members, 457. after stoppage and contemplation of winding-up, 117, 131. general rules with respect to, 27, 28. to escape liability, by director transferring qualification shares, 31. out and out, is valid, 27, 28. when fictitious and invalid, 28, 30. when tainted with fraud, 28, 31, 32-34. cases in European Arbitration, as to, 34. in companies in the Stannaries, 30. laches in impeaching, 36. to nominee of company, 41. by an infant, 43. to an infant not void but voidable, 43. invalid as a deed, may be effectual, 453. informalities in, effect of, 1-82, 133, 453-456. denoting numbers of shares omitted, 456. if invalid, leaves transferor liable, 39. transferor should see to registration of, 134, 566. company not bound to give notice of refusal to register, 39. to be registered at request of transferor, 565, 566. after commencement of winding-up by or under supervision of Court, 342. between preliminary and confirmatory resolution for voluntary winding-up, 321. after commencement of voluntary winding-up, 320, 321. liquidator may allow conditionally, 321. action will lie for refusal to execute, 321. execution of, may be couclusive as to transferor being a member, 59, 60. whether bars relief on ground of misrepresentation, 115. on amalgamation, 41. liability for call after, 196, 451. of improperly reduced shares, 551. stamps on, 458. and see TBANSFEnoR ; Tbansferee. TRANSFER OF STOCK, 478. TRANSFEREE, delay of, to register transfer, 134. and transferor, dividends as between, 458. may call on transferor to comply with rules of company and complete the trans- fer, 38. discretionary power of approving, how to be exercised, 86. evidence of approval, 37. presumption that he is unobjectionable, 133. INDEX. Ixi TKANSFEEEE— conMnucd. discretionary power of approving — continued. qbjeotiou need not be stated, 37. how to be construed, 37. liability of, for call, 196, 451. of shares purporting to be paid up, liability of, 42, 70, 83, 93, 557. by way of mortgage, liability of, 73, 74. bankrupt, proof against estate of, 201. infant, 42 : See Infant. misdescription of, whether material, 28, 29, 33-36. wilful misrepresentation as to proposal, 28, 33, et seq. TRANSFEKOB and transferee, dividends as between, 458. liability of, for calls, 196, 451. where shares not in fact paid up have beeu transferred as paid, 558. liability of successive, as B. contributories, 147. may apply for transfers to be registered, 565, 566. ought to do so, 134. infant : See Infant. TEANSMISSION, is distinct from transfer, 460. of right of action under Comp. Act, 1867, o. 38 . . 574. TBEASUEBR of Friendly Society or Savings Bank, priority for debt of, 365. TRUST ASSOCIATIONS, need not be registered, 3. TRUSTEE for the company, is not an " officer " within Comp. Act, 1867, s. 38 . . 576. agreement by, with promoter, form of, 525. can claim interest at 5 per cent., 370. proof by, in winding-up, 348. power to require delivery of property by, 284. of shares, holds " in his own right " as between himself and the company, 56, 85, 87, 88. liability of, 85, 87, 88, 436. when described as trustee in the register, 86. when trustee for the company, 88. his right to indemnity, 88. how enforceable for benefit of company, 89. not Jo»^/de, 90, 436. infant, attaining his majority before the winding-up, 92. company's lien, enforcement of, for trustee's debt, 87, 461. not enforceable for debt of cestui que trust, 87. position of director as, 496. of unauthorized investment, 92, TRUSTEE SAVINGS BANK winding-up of, 435. contributory in case of, 436. TRUSTS, are not to be entered on register, 85. notice of, to company, effect of, 87. colourable and fraudulent, 90, 486. not recognizable as between company and member, 485, 486. TRUTH, what is, 126. TURNER'S (SIR GEORGE) ACT, distribution of shareholder's assets under, 204. ULTRA VIRES acts, directors cannot bind company by, 493. whether directors necessarily liable for, 493, 494. single shareholder may sue to restrain, 486. condition, agreement to take shares under, 71. contracts, whether capable of ratification, 14. proceedings are not ground for winding-up order, 217. resolutions associated with resolution to wind up voluntarily, 318. shares issued, whether valid, 72, 73. 3 K Ixii INDEX. UNDERTAKING, wliat is included in a charge of, 168. whether mortgagee of, may foreclose after winding-up, 256. whether mortgagee of, can sell, 163. UNDERWRITING shares, moaning of, 76. UNINCORPORATED COMPANY, winding-up of, 430. UNLIMITED COMPANY, whether limited company can be member of, 7. registration of, with limited liability, 424. UNLIQUIDATED CLAIM will not support winding-up petition, 224, 337. UNNECESSARY DELAY in registering transfer, 130. UNOPPOSED, hearing windiflg-up petitions as, 247. UNREGISTERED COMPANY, meaning of term, 427, 429, 430. contributory Of, 435. when company is registered after member has left it, 145, 424. liability of, is a specialty debt, 198. service uponf, 435, 678, special provisions in respect of, to be cumulative, 439, 440. vesting order, 439. winding-up of, 427. costs Of, how borne, 437. VACANCY among auditors, 521. among directors, 507. is not to suspend their powers, 503. among liquidators in winding-up by Court, 269, 682. in winding-up under supervision, 340. in toluntary winding-up, 328. undet act of 1890. ofiSoial receiver to be liquidator, 616. on committee of inspection, 620. VACATION^ one Chief Clerk may sign for another during, 691. VALIDITY of acts of directors, &c., invalidly appointed, 191, 192, 510. VALUATION of debts and claims, 348, et seq., 685. of annuities and policies, 353, 666. of dissentient shareholder's interest, 395. VARIATION between prospectus and memorandum, 107. VENDOR of shares, right of, to indemnity, 44, 135 : See Indemnity. to company, guarantee oi dividends by, 514, 515. VESTING ORDER in case of unregistered company, 439. VOLUNTARY WINDING-UP : See Winding-op, Voluntabv. VOTES, casting vote of chairman of directors, 508. of general meeting, 484. of committee of directors, 510, of creditors and contributories, in meetings held in winding-up, 692, 693. of members, regulations as to, 186, 187, 484, 528. some shares may be excluded from, 487. when calls in arrear, 488. INDEX. Ixiii VOTES— confenitei. of joint holders of shares, 488. of lunatic members, 488. of member who has recently aoqijired his shares by transfer, 488. of stockholders, 478. in respect of matter of personal interest, 484. by director, 506. by person whose vote is entrusted to him as a member of a class, 485, 583, 584. numerical majority prevails unless poll demanded, 483, 484. proxies for, 488, 489. right to, follows legal title to shares, 485. is a right of property attached to the share, 485. transfer to secure additional, 27. WAGES, payment of arrears of, due at winding-up, 349. whether entitled to priority in payment, 349, .SiO. WAIVES of couditien under which shares accepted, 67. of right to security for costs, 195. WAREANT : See Share Wabkakt. WINDING-UP BY COURT, 207-317. application to be made by petition, 223. of abortive companies, 438. of companies incorporated by special Act of Parliament, 432. of benefit building societies, 230, 434. of companies illegal for want of registration, 4, 430. of existing companies registered under the Comp. Act, 1862 .. 425. of life assurance companies, 648. for non-compliance with Life Assurance Companies Act, 1870 .. 648. of subsidiary life assurance companies, 663, 664, 665. of mutual societies, 434. of unincorporated companies, 430. . whether order for, can be made in an action, 431. of unregistered companies, 427. bankruptcy, winding-up is not equivalent to, 272. commencement of : See Commencement. compromise with contributories and creditors : See Compeouise. contributories in : See Contributories. costs of, who is to contribute to, 141. liability of B. contributories in respect of, 154. in unregistered company, 437. and see Costs. Court having jurisdiction in, 221, 222, 427, 428, 613. damages running after commencement of, 356. dispositions of property after commencement of, 342, 343. distribution of surplus assets after, 292, 293, 294, 295. interest on debts in : See Interest. interest on calls made in, 199. liquidator's periodical statement of proceedings, under Act of 1890 . . 623. mortgagee will have leave to pursue his remedies notwithstanding winding-up, 256. petition for : See Petition. priority. Crown is entitled to, in payment, 238, 323. what is admissible to proof in, 348 : and see Proof. regard to wishes of creditors and contributories in, 260, 338, 391, 692, 693. salary and wages due to ofBoers and servants at date of, 349, 350. saving of proceedings commenced under previous Acts, 441. set-off in : See Set-off. staying proceedings in, 259. transfer of proceedings, 614. summons to obtain information in, 300. termination of, 298, 698, appeal from County Court in, 314. See Winding-dp Order. Ixiv INDEX. WINDING-UP UNDER SUPBEVISION, 336-342. Court which has jurisdiction, 613. not applicable to unregistered company, 427. commencement of, 319, 338. power of compromise in, 326, 385, 387. interest in : See Interest. petition for : See Petition. powers of liquidator in, 387. rectification of register of members in, 281, 325. transfer of proceedings, 614. WINDING-UP, VOLUNTARY, 317-336. to what companies applicable, 317, 319. unregistered companies, 427. companies registered under Joint Stock Companies Acts, 319. circumstances under which commenced, 317. does not bar creditor's right to compulsory order, 332. gusere, whether bars oontributory's right to compulsory order, 333. Court will favour where creditors do not oppose, 335. resolution for, associated with resolutions ultra vires, 318. notice of resolution for, 318. adoption of proceedings in, when compulsory order made, 335. appointment of liquidators in, 322, 323. arrangement with creditors in, 326. appeal against, 326. arrangement with respect to powers of liquidators in, 326. commencement of, 319. conclusion of, 330. consequences of, 321, 322. costs of, to be paid in priority to all other claims, 331. creditor's remedies in, 246. damages against delinquent directors-in, 399. powers of directors to cease in, 322. dissolution of company after, 322. distribution of property in, 322, 323. eifect of, on status of company, 320. effect of, on share capital of company limited by guarantee, 325. informality in, is not a ground for a oontributory's petition, 336. renders supervision order impossible, 338. injunction to stay action after commencement of, 233, 245, 246. interest in : See Interest. notice to contributories of being settled on list, 324, 325. exercise of powers by liquidators in, 322. power of liquidators, to settle list of contributories, 322. to make calls, 322. to enforce call made by directors, 446. to pay debts of company and adjust rights of contributories, 323. power to apply to Court in, 326, 327. sale of company's property in, 324, 389. staying proceedings in, 260. transfer of shares between preliminary and confirmatory resolutions for, 320, 321. transfer of shares after commencement of, 320, 321. supervision order, effect of, 340, 841 : ^la Sdpervision Order. WINDING-UP ORDER, Cor.rt which has jurisdiction to make, 613. who may petition for, 223, 579, 580 : See Petition. practice when several petitions presented, 253, 254. circumstances under^whioh made, 207, 208, 427. fraud in promotion of company is not ground for, 216. whore number of shareholders small, 209, 215. when company insolvent, 217, 218, 2G4, 428, 429. "just and equitable," 215, 216. mismanagi'uu'ut alone docs not justify, 217. proceedings ultra vires do not furnish ground for, 217. in cnse of foreign company, 218. on petition of creditor, 209, 223, 263, 331. INDEX. hv WINDING-UP OHD^R— continued. on petition — continued. of creditor — continued. discretion as to making, 209. where there are no assets, 210. ■where debt disputed, 211, 220. of official receiver, 225, 622. of scrip-holder, 231. of shareholder, 208, 221, 260, 261, 333, 579, 580. paid-up, 225. in arrear in payment of calls, 224. of shareholder's executor, 225. of B. contributory, 225. advertisement and service of, 680, 703 ; (1890), 742. appeal from, 251. persons other than petitioner may present, 251. by company, security for costs, 195. application to vary or discharge, 252. application to vary, how made, 252. cannot be disputed in subsequent proceedings, 5, 289. carriage, of, to whom given, 208. collection and application of the assets after, 280, 281. copy to be left at chambers of judge, 680. copy to be forwarded to registrar, 258, 259. effect of, upon action or suit, 254, 438. effect of, on share capital of company limited by guarantee, 260, 325. form of (1890), 743, 764. operation of, 223. petitioner for, is dominus litis, 226. post-dating, 248. proceedings under, 680. rectification of the register after, 280, 281. service of (1890), 743. stops Statute of Limitations from running against creditors, 271, 370, 371. supplemental to former order, 248. transfer of actions after, 234, 254, 255. two companies cannot be included in one order, 253. under sijpervisiou : See Supervision Obder. WISHES of creditors and contributories. Court may have regard to, 260, 338, 391, 692, 693. WITHDEAWAL MEMBEKS of building society, rights of, 175, 176. WITHDRAWAL OF PETITION, what costs petitioner should demand, 227. WITNESS IN WINDING-UP summoned under Companies Act, 1862, s. 115 . . 299, 300. to what notice entitled, 302. what questions he must answer, 304, 305. may be attended by counsel, 304. examination of, 305, 306. committal for refusal to answer (1890), 739. examination of, by commissioner, 315. examination of, in Scotland, 315, 316. WORKMEN'S WAGES, one proof for several claims (1890), 750, 790. YEAR, meaning of, in Comp. Act, 1862, s. 26 . . 84. THE END. LONDON- PRINTED BT WILLIAM CLOWES AND SONS, LIMITED, STAMFORD STREET AND CHARING CROSS. A CATALOGUE LAW WORKS PUBLISHED AND SOLD BY Stevens & Haynes, i3, BELL YARD, TEMPLE BAR, LON DON. BOOKS BOUND IN THE BEST BINDINGS. Works in all Classes of Literature supplied to Order. FOREIGN BOOKS IMPORTED. 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PAGE ABSTRACT DRAWING — Scott 32 AUxMINISTRATION ACTIONS— Walker and Elgood 18 ADMINISTRATORS— Walker 6 ADMIRALTY LAW— Kay . , 17 Smith 23 ARBITRATION— Slater 7 ARTIZANS AND LABOURERS' DWELLINGS— Lloyd .... 13 BANKRUPTCY— Baldwin 15 Hazlitt 29 Indermaur (Question & Answer) 28 Ringwood iSi 29 BAR EXAMINATION JOURNAL 39 BIBLIOGRAPHY 40 BILLS OF LADING— Campbell 9 Kay 17 BILLS OF SALE— Baldwin 15 Indermaur 28 Ringwood 15 BUILDING LEASES AND CON- TRACTS— Emden 8 Hudson 12 CAPITAL PUNISHMENT— Copinger 42 CARRIERS— See RAILWAY LAW. „ SHIPMASTERS. CHANCERY DIVISION, Practice of— Brown's Edition of Snell ... 22 Indermaur 25 Williams 7 And see EQUITY. CHARITABLE TRUSTS— Cooke 10 Whiteford 20 CHURCH AND CLERGY— Brice o CIVIL LAW— i-« ROMAN LAW. CLUB LAW— Wertheimer . 32 CODES— Argles 32 COLLISIONS AT SEA— Kay . , 17 COLONIAL LAW— Cape Colony 38 Forsyth 14 Tarring 41 COMMERCIAL AGENCY— Campbell , , 9 PAGE COMMERCIAL LAW— Hurst and Cecil II COMMON LAW— Indermaur 24 COMPANIES LAW— Brice 16 Buckley 17 Reilly's Reports 29 Smith 39 Watts 47 COMPENSATION— Browne 19 Lloyd 13 COMPULSORY PURCHASE— Browne 19 CONSTABLES— .?« POLICE GUIDE. CONSTITUTIONAL LAW AND HISTORY— Eorsyth 14 Taswell-Langraead 21 Thomas 28 CONSULAR JURISDICTION— Tarring 42 CONVEYANCING— Copinger, Title Deeds .... 45 Copinger, Precedents in ... 40 Deane, Principles of . . . . . . 23 COPYRIGHT— Copinger 45 CORPORATIONS— Brice 16 Browne 19 COSTS, Crown Office- Short . 41 COVENANTS FOR TITLE— Copinger 45 CREW OF A SHIP— Kay 17 CRIMINAL LA^V— Copinger 42 Harris 27 CROWN LAW— Forsyth 14 Hall 30 Kelyng 35 Taswell-Langmead ..... 21 Thomas 28 CROWN OFFICE RULES- Short 10 CROWN PRACTICE— Corner 10 Short and Mellor 10 CUSTOM AND USAGE— Browne 19 Mayne 38 DAMAGES— Mayne 31 DICTIONARIES— Brown ...,,.... 26 STEVENS &' IIAYKES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS-'-''"'''""'"''- DIGESTS— PAGE Law Magazine Quarterly Digest . 37 Menzies' Digest of Cape Reports. 38 DISCOVERY— Peile 7 DIVORCE— Harrison 23 DOMESTIC RELATIONS— Eversley 9 DOMICIL— J-«« PRIVATE INTER- NATIONAL LAW. DUTCH LAW 38 ECCLESIASTICAL LAW— Brice 9 Smitli 23 EDUCATION ACTS— See MAGISTERIAL LAW. ELECTION LAW and PETITIONS— Hardeastle 33 O'Malley and Hardeastle ... 33 Seager 47 EQUITY— Blyth 22 Choyce Cases 35 Pemberton 32 Snell 22 Story 43 Williams 7 EVIDENCE— Phipson 20 EXAMINATION OF STUDENTS— Bar Examination Journal ... 39 Indermaur 24 and 25 Intermediate LL.B 21 EXECUTORS— Walker and Elgood 6 EXTRADITION— Clarke 45 See MAGISTERIAL LAW. FACTORIES— See MAGISTERIAL LAW. FISHERIES— See MAGISTERIAL LAW. FIXTURES— Brown 33 FOREIGN LAW— Argles -32 Dutch Law . 38 Foote 36 Pavitt 32 FORESHORE— Moore . 3"^ FORGERY— 5'«c MAGISTERIAL LAW. FRAUDULENT CONVEYANCES— May 29 GAIUS INSTITUTES— Harris 2° GAME LAWS— See MAGISTERIAL LAW. GUARDIAN AND WARD— Eversley 9 HACKNEY CARRIAGES— See MAGISTERIAL LAW. HINDU LAW— Coghlan 28 Cunningham 38 and 42 Mayne 38 HISTORY— Taswell-Langmead 21 HUSBAND AND WIFE— Eversley 9 INDEX TO PRECEDENTS— Copinger 40 INFANTS— Eversley 9 Simpson 43 INJUNCTIONS - Joyce -44 INSTITUTE OF THE LAW— Brown's Law Dictionary ... 26 INSURANCE— Porter 6 INTERNATIONAL LAW— Clarke 45 Cobbett 43 Foote 36 Law Magazine 37 INTERROGATORIES— Peile 7 INTOXICATING LIQUORS— See MAGISTERIAL LAW. JOINT STOCK COMPANIES— See COMPANIES. JUDGMENTS AND ORDERS— Pemberton 18 JUDICATURE ACTS— Cunningham and Mattinson . . 7 Indermaur 25 Kelke 6 JURISPRUDENCE— Forsyth M Salmond 13 JUSTINIAN'S INSTITUTES— Campbell 47 Harris 20 LANDLORD AND TENANT— Foa II LANDS CLAUSES CONSOLIDA- TION ACT— Lloyd 13 LAND, IMPROVEMENT OF, by Buildings— Emden 8 LATIN MAXIMS 28 LAW DICTIONARY— Brown 26 LAW MAGAZINE and REVIEW . 37 LEADING CASES— Common Law 25 Constitutional Law . ... 28 Equity and Conveyancing ... 25 Hindu Law 28 International Law 43 B Z STEVENS &■ HAYNES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS-'''«/»««.rf. PAGE LEADING STATUTES— Thomas 28 LEASES— Emden . , 8 Copinger , 45 LEGACY AND SUCCESSION— Hanson 10 LEGITIMACY AND MARRIAGE— See PRIVATE INTERNA- TIONAL LAW. LICENSES— .y^^MAGISTERIAL LAW. LIFE ASSURANCE— Buckley 17 Reilly 29 LIMITATION OF ACTIONS— Banning 42 LUNACY— Williams 7 MAGISTERIAL LAW— Greenwood and Martin .... 46 MAINTENANCE AND DESERTION. Martin 7 MARRIAGE and LEGITIMACY— Foote 36 MARRIED WOMEN'S PRO- PERTY ACTS— Brown's Edition of Griffith . . 40 MASTER AND SERVANT - Eversley q Set MAGISTERIAL LAW. „ SHIPMASTERS & SEAMEN. MERCANTILE LAW ..... 32 Campbell . p Duncan 33 Hurst and Cecil 1 1 Slater 7 See SHIPMASTERS. „ STOPPAGE IN TRANSITU. MERCHANDISE MARKS - Daniel , a2 MINES — Harris 47 See MAGISTERIAL LAW. MORTMAIN— See CHARITABLE TRUSTS NATIONALITY— j-« PRIVATE IN- TERNATIONAL LAW, NEGLIGENCE— Beven 14 Campbell ^q NEWSPAPER LIBEL— Elliott J. OBLIGATIONS— ' " Brown's Savigny .... 20 PARENT AND CHILD— ' ' Eversley ..... n PARLIAMENT— ■ . . y Taswell-Langmead 21 Thomas 28 PAGE PARTITION— Walker 43 PASSENGERS— See MAGISTERIAL LAW. „ RAILWAY LAW. PASSENGERS AT SEA— Kay 17 PATENTS— Daniel 42 Frost 12 PAWNBROKERS— See MAGISTERIAL LAW. PETITIONS IN CHANCERY AND LUNACY— Williams 7 PILOTS— Kay 17 POLICE GUIDE— Greenwood and Martin .... 46 POLLUTION OF RIVERS— Higgins 30 PRACTICE BOOKS— Bankruptcy 15 Companies Law .... 29 and 39 Compensation 13 Compulsory Purchase .... 19 Conveyancing 45 Damages 31 Ecclesiastical Law 9 Election Petitions 33 Equity 7, 22 and 32 Injunctions 44 Magisterial 46 Pleading, Precedents of . . . 7 Railways 14 Railway Commission .... 19 Rating ig Supreme Court of Judicature . . 25 PRACTICE STATUTES, ORDERS AND RULES— Emden u PRECEDENTS OF PLEADING— Cunningham .ind Mattinson . , 7 Mattinson and Macaskie ... 7 PRIMOGENITURE— Lloyd . 13 PRINCIPLES— Brice (Corporations) ..... 16 Browne (Rating) ig Deane (Conveyancing) .... 23 Harris (Criminal Law) .... 27 Houston (Mercantile) .... 32 Indermaur (Common Law) . . 24 Joyce (Injunctions) .... 44 Ringwood (Bankruptcy) . . . ic vSnell (Equity) 22 PRIVATE INTERNATIONAL LAW— Foote ...,,.,., 36 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. INDEX OF SUBJECTS-^"'*""''/. rAGE PROBATE— Hanson lo Harrison 23 I'ROMOTERS— Watts 47 PUBLIC WORSHIP— Brice 9 QUARTER SESSIONS— Smith (F. J.) 6 QUEEN'S BENCH DIVISION, Practice of— Indermaur 25 QUESTIONS FOR STUDENTS— Aldred 21 Bar Examination Journal ... 39 Indermaur 25 Waite 22 RAILWAYS— Browne 19 Godefroi and Shortt 47 See MAGISTERIAL LAW. RATING— Browne 19 REAL PROPERTY— Deane 23 Edwards 16 Tarring 26 REGISTRATION— Elliott (Newspaper) .... 14 Seager (Parliamentary) .... 47 REPORTS— Bellewe 34 Brooke 35 Choyce Cases 35 Cooke 35 Cunningham 34 Election Petitions 33 Finlason 3^ Gibbs, Seymour Will Case . . ro Kelyng, John 35 Kelynge, William 35 Reilly 29 Shower (Cases in ParUament) . 34 ROMAN DUTCH LAW— Van Leeuwen 3^ ROMAN LAW— Brown's Analysis of Savigny . . 20 Campbell 47 Harris 20 Salkowski 14 Whitfield 14 SALVAGE— Jones 47 Kay 17 SANITARY ACTS— See MAGISTERIAL LAW. SAVINGS BANKS— Forbes 1° SCINTILLAE JURIS- Darling (C. J.) 18 SEA SHORE— >•*<== Hall. 30 Moore 30 SHIPMASTERS AND SEAMEN— Kay 17 SOCIETIES— See CORPORATIONS. STAGE CARRIAGES— See MAGISTERIAL LAW. STAMP DUTIES— Copinger 4° ""d 45 STATUTE OF LIMITATIONS— Banning 42 STATUTES— Craies 9 Hardcastle ■ 9 Marcy 26 Thomas 28 STOPPAGE IN TRANSITU— Campbell 9 Houston 32 Kay .17 STUDENTS' BOOKS . 20—28, 39, 47 SUCCESSION DUTIES— Hanson , . 10 SUCCESSION LAWS- Lloyd 13 SUPREME COURT OF JUDICA- TURE, Practice of— Cunningham and Mattinson . . 7 Indermaur 25 TELEGRAPHS— See MAGISTERIAL LAW. TITLE DEEDS— Copinger 45 TORTS— Ringwood 13 TOWNS IMPROVEMENTS— See MAGISTERIAL LAW. TRADE MARKS— Daniel 42 TREASON— Kelyng 35 Taswell-Langmead ..... 21 TRIALS— Bartlett, A. (Murder) . . 32 Queen v. Gurney 32 ULTRA VIRES— Brice '^ USAGES AND CUSTOMS— Browne '9 Mayne 38 VOLUNTARY CONVEYANCES- May 29 WATER COURSES— Higgins , ... 30 WILLS. CONSTRUCTION OF— Gibbs, Report of Wallace v. Attorney-General . . , . 10 6 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 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With an Appendix of Forms, Orders, &c., and an Addenda giving the Alterations under the New Rules of Practice. By Clarence J. Peii.e, of the Inner Temple, 3arrister-at-l.aw. " Mr. Feile has done well in writing this book. The subject is carefully yet tersely treated." — Law Times. In one volume, 8vo, price lis., cloth, THE LAW AND PRACTICE RELATING TO PETITIONS IN CHANCERY AND LUNACY, Including THE SETTLED ESTATES ACT, LANDS CLAUSES ACT, TRUSTEE ACT, WINDING-UP PETITIONS, PETITIONS RELATING TO SOLICITORS, INFANTS, Etc., Etc. With an Appendix of Form.s and Precedents. By Sydney E. Williajis, of Lincoln's Inn, Barrister- at-Law. Second Edition, in 8vo, price 28^., cloth, A SELECTION OF PRECEDENTS OF PLEADING UNDER THE JUDICATURE ACTS IN THE COMMON LAW DIVISIONS. With Notes explanatory of the different Causes of Action and Grounds of Defence ; and an Introductory Treatise on the Present Rules and Principles of Pleading as illustrated by the various Decisions down to the Present Time. By J. CUNNINGHAM and M. W. MATTINSON. SECOND EDITION. By miles WALKER MATTINSON, of Gray's Inn, Barrister-at-Law, and STUARTCUNNINGHAMMACASKIE, of Gray's Inn, Barrister-at-Law. KEVIEWS. "The notes are very pertinent and satisfactory : the introductory chapters on the present system of pleading are excellent, and the precedents will be found very useful."— /ra/j Law Tillies. t. • ■ i "A work which, in the compass of a single portable volume, contains a brief Treatise on the Prniciples and Rules of Pleading, and a carefully annotated body of Forms which have to a great extent gone through the entirely separate sifting processes of Chambers, Court, and Judges' Chambers, cannot fail to be a most ui;eful companion in the Practitioner's daily routine."— Zaa/ Magazine and lieTiiew. Second Edition, in 8vo, price 25/., cloth, REMODELLED, MUCH ENLARGED, WITH SEVERAL NEW CHAPTERS ON "LIGHT," "SUPPORT," ETC. EMDEN'S LAW RELATING TO BUILDING, BUILDING LEASES, AND BUILDING CONTRACTS. WITH A FULL COLLECTION OF PRECEDENTS, TOGETHER WITH THE STATUTE LAW RELATING TO BUILDING, WITH NOTES AND THE LATEST CASES UNDER THE VARIOUS SECTIONS. By ALFRED EMDEN, OF THE INNER TEMPLE, ESQ., BARRISTER-AT-I.AW ; AUTHOR OF THE "PRACTICE IN WINDING-UP COMPANIES," "a complete COLLECTION OF PRACTICE STATUTES, ORDERS, AND RULES, FROM IZ75 TO 1885," "the shareholder's LEGAL GUIDE," ETC., ETC. " We were able to speak in terms of commendation of ih^ First Edition of this book, but we can say much more for the present edition. Mr. Emden has re-written and enlarged his work, and in its present form it constitutes a complete, and so far as our examination has gone, an accurate treatise on the branch of the law to which it relates." — Solicitors' yoni-nnl. " We had occasion to speak favourably of the First Edition of Mr. Emden's work, and we have nothing but commendation to award to the Second Edition, which has practically been re-written and very much enlarged."' — The Field. " With the revisions and additions, Mr. Emden's trtatise claims in a higher degree to be considered the most comprehensive text-book of the law relating to building, that has been published in a single volume." ■ — The Building News. " This work viewed as a whole, is in all ways a standard authority on all the subjects treated, and it is in reality a small Law Library on building subjects, ingeniously and most lucidly compressed in a single volume," — The Bitildijig World. " No more useful book for architect, contractor, or building owner, has been published than ' Emden's Law of Building, Building Leases, and Building Contracts,* and its re-issue as a revised and extended work will be generally appreciated." — The Architect. " A second edition of Mr. Alfred Emden's useful work on The Law rtlaiiiig io Buildivg Leases^ aitd Butldin^^ Cont7-acts, has just been issued by Messrs. Stevens & Haynes, Bell Yard, Temple Bar. The first edition soon became exhausted, and the learned author has entirely rewritten, remodelled, and considerably enlarged the_ previous edition. There is a good collection of precedents with respect to matters connected with building, together with the Statute Law relating to building, with notes, and the latest cases under the various sections. A new and comprehensive index has been compiled, and last, but not least, is an excellent glossary of architectural and building terms used in the Building Act, building lca.ses and contracts, &c." — Laiv Times. " We have been asked from time to time which is the text-book of the Law relating io Buildings Building Leases, and Building Contracts, and we have had to reply that, so far as we know, the com- prehensive work published by Messrs. Stevens & Haynes, of Bell Yard, Temple Bar, by Mr. Alfred Emden, is the best and most generally useful we know. We mention this fact because a second edition has just been published, ' rewritten, remodelled, and enlarged,' on the law relating to buildings, with new chapters on damage to property or person caused by building, gas and water, support, party walls, and light. Voluminous precedents are also given, with a comprehensive view of the Statute Law, which has materially changed since the first edition was published in 1882. It is well that those engaged in the building trade should bear this in mind, as much litigation would therefore be avoided, with its consequent expense and annoyance. The book is rendered more valuable from its glossary and well-arranged index." — Building Times. "The present treatise of Mr. Emden deals with the subject in an exhaustive manner, which leaves nothing to be desired The book contains a number of forms and precedents for building leases and agreements which are not to be found in the ordinary collection of precedents."— TA^ Times. *' Mr. Emden has obviously given time and labour to his task, and therefore will save time and laboui to those who happen to be occupied in the same field of enquiry." — Law Journal. "It may safely be recommended as a practical text-book and guide to all people whase fortune or misfortune it is to be interested in the construction of buildings and other works."— ^^a/r/rrfay Review. "To supply this want is the writer's object in publishing this work, and we have no hesitation in expressing our opinion that it will be found valuable by several distinct classes of persons .... it seems to us a good and useful book, and we recommend the purchase of it without hesitation."— y/^^ Builder. " from the point of view of practical utility the work cannot fail to be of the greatest use to all who require a little law in the course of their building operations. They will find both a sound arrangement and a clear sensible style, and by peiusing it with ordinar>' attention many matters of which they were before doubtful will become quite comprehensible."- C/"/y Frcss. STEVENS &> HAYNES, BELL YARD, TEMPLE BAR. In royal 8vo, i loo pages, price 52J. 6(/., doth, THE LAW OF THE DOMESTIC RELATIONS, INCLUDING HUSBAND AND WIFE: PARENT AND CHILD: GUARDIAN AND WARD : INFANTS : AND MASTER AND SERVANT. By WILLIAM PINDER EVERSLEY, B.C.L., M.A., OF THE INNER TEMPLE, BARRISTER-AT-LAW. " '' is essentially readable and interesting, and ought to take a high place among text books. . . . We say, without hesitation, that this is a learned book, written in a peculiarly fascinating style, having legard to the nature of the subject. ... It can only be said, therefore, that the book is deserving of success upon the merits ; and that the attempt to combine the treatment of three branches of the law which have hithert J been unnaturally divided shows, in itself, a comprehensive grasp of principle." — Laiu Times. " The author may be congratulated upon having produced an excellent treatise on this branch of the law, well arranged, cle.-irly written, and complete. A word of praise, too, must be accorded to the laborious c-ire with which he has accumulated references to the varipus Reports, and constructed his very lull mdex." — Solicitors' Joitriial. Second Edition, in one volume, royal 8vo, price 32J., cloth, THE LAW RELATING TO THE SALE OF GOODS AND COMMERCIAL AGENCY. SECOND EDITION. By ROBERT CAMPBELL, M.A., OF Lincoln's inn, barkister-at-law ; advocate of the scotch bar AUTHOR OF THE " LAW OF NEGLIGENCE, ETC." "An accurate, careful, and exhaustive handbook on the subject with which it deals. The excellent index deserves a special word of commendation." — Law Quarterly Review. _ " We can, therefore, repeat what we said when reviewing the first edition— that the book is a contribu- tion of value to the subject treated of, and that the writer deals with his subject carefully and fully." — Law jfoumal. Second Edition, in one volume, 8vo, price 28^., cloth, A TREATISE ON THE CONSTRUCTION AND EFFECT OF STATUTE LAW. with appendices containing words and expressions used in st.-vtutes which have been judicially or statutably construed, and the popular and short titles of certain statutes. By henry HARDCASTLE, barrister-atlaw. SECOND EDITION, REVISED AND -ENLARGED, by W. F. CRAIES, BARRISTER-AT-LAW. " The result of Mr. Craies' industry is a sound and good piece of work, the new light thrown on the subject since 1879 having been blended with the old in a thoroughly workmanlike manner. Though less a student's manual than a practitioner's tqxt book, it is the sort of volume an intelligent perusal Of which would educate a student better than the reading of much substantial law." — Saturday Review. In one volume, 8vo, price 2%s., cloth, THE LAW RELATING TO PUBLIC WORSHIP ; With special reference to Matters of Ritual and Ornamentation, and the Means of Securing the Due Observance thereof, and containing in extenso, with Notes and References, The Public Worship Regulation Act, 1874 ; The Church Discipline Act; the various Acts of Uniformity; the Liturgies of 1549, 1552, and 1559, compared with the Present Rubric ; the Canons ; the Articles ; and the Injunc- tions, Advertisements, and other Original Documents of Legal Authority. By Seward Brice, LL.D., of the Inner Temple, Barrister-at-Law. 10 STEVENS <£- HAYNES, BELL YARD, TEMPLE BAR. In 8vo, price 30J., doth, THE PRACTICE ON THE CROWN SIDE Of the Queen's Bench livision of Her Majesty's High Court of Justice (Founded on Corner's Crown Office Practice), including Appeals from Inferior Courts; with Appendices of Rules and Forms. By FREDERICK HUGH SHORT, Chief Clerk of ihc Crown Office, Author of "Taxation of Costs in the Crown Office," and Editor of " Crown Office Rules and Forms, 1886 ;" and FRANCIS HAMILTON MELLOR, M.A., Trin. Coll. Camb., Northern Circuit, Inner Temple, Barrister-at-Law. In 8vo, price \2s., cloth, THE CROWN OFFICE RULES AND FORMS, 1886. The Supreme Court of Judicature Acts and Rules of the Supreme Court 1883, relating to the Practice on the Crown side of the Queen's Bench Division ; including Appeals from Inferior Courts, Tables of Court Fees, Scales of Costs ; together with Notes, Cases, and a Full Index. By F. H. SHORT, Chief Clerk of the Crown Office. In 8vo, price ts. td., cloth, THE CUSTOMS AND INLAND REVENUE ACTS, I88O and 1881 (43 Vict. Cap. 14, and 44 Vict. Cap. 12), So far as they Relate to the Probate, Legacy, and Succession Duties, and the Duties on Accounts. With an Introduction and Notes. By ALFRED Hanson, Esq., Comp- troller of Legacy and Succession Duties. ",* This forms a Supplement to the Third Edition of the Probate, Legacy, and Succession Duty Acts by the same Author. Third Edition, in 8vo, 1876, price 25^., cloth, THE ACTS RELATING TO PROBATE, LEGACY, AND SUCCESSION DUTIES. Comprising the 36 Geo. III. c. 52 ; 45 Geo. III. c. 28 ; 55 Geo. III. c. 1S4 ; and 16 & 17 Vict. c. 51 ; with an Introduction, Copious Notes, and References to all the Decided Cases in England, Scotland, and Ireland. An Appendix of Statutes, Tables, and a full Index. By Alfred Hanson, of the Middle Temple, Esq., Barrister-at-Law, Comptroller of Legacy and Succession Duties. Incorporating the Cases to Michaelmas Sittings, 1876. " lt_ is the only complete book upon a subject of 1 "His book is in itself a most useful one; its great importance. author kno'A s every in and out of the subject, and "Mr. Hanson is peculiarly qualified to be the j has presented the whole in a form easily and adviser at such a time. Hence a volume without | readily handled, and with good arrangement and a rival." — Law Times. \ clear exposition." — Solicitors' Journal, In royal 8vo, 1877, price \Qs., cloth, LES HOSPICES DE PARIS ET DE LONDRES. THE CASE OF LORD HENRY SEYMOUR'S WILL (WALLACE V. THE ATTORNEY-GENERAL). Reported by FREDERICK WAYMOUTH GIBBS, C.B., Barrister at-Law, l.ATE FELLOW OF TRINITY COLLEGE, CAMBRIDGE. In 8vo, 1S67, price i6j-., cloth, CHARITABLE TRUSTS ACTS, 1853, 1855, 1860; THE CHARITY COMMISSIONERS' JURISDICTION ACT, 1862! THE ROMAN CATHOLIC CHARITIES ACTS: Together with a Collection of Statutes relating to or affecting Charities, including the Mortmain Acts, Notes of Cases from 1853 to the present time, Forms of Decla- rations of Trust, Conditions of Sale, and Conveyance of Charity Land, and a very copious Index. Second Edition. By HUGH COOKE and R. G. HARWOOD, of the Charity Commission. STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 11 In one Volume, 8vo, price 20s. , cloth, THE PRINCIPLES OF COMMERCIAL LAW; WITH AN APPENDIX OF STATUTES, ANNOTATED BY MEANS OF REFERENCES TO THE TEXT. By JOSEPH HURST and LORD ROBERT CECIL, OF THE INNER TEMPLE, BARRISTERS-AT-LAW. "Their compendhim, we believe, will be found a really useful volume, one for the lawyer and the business man to keep at his elbow, and which, if not giving them all that they require, v/ill place in their hands the key to the richer and more elaborate treasures of the Law which He in larger and more exhaus- tive works."— Znw Times. "The object of the authors of this work, they tell us in their preface, is to state, within a moderate compass, the principles of commercial law. Very considerable pains have obviously been expended on the task, and the book is in many respects a very serviceable one." — Lain younial. In one Volume, 8vo, price 20s. cloth, THE RELATIONSHIP OF LANDLORD AND TENANT. Bv EDGAR FOA, OF THE INNER TEMPLE, BARRISTER-AT-LAVV. "Will be found of much value to practitioners, and when a second edition has given the author the opportunity of reconsidering and carefully revising his statements in detail, we think it will take its place as a very good treatise on the modern law of landlord and tenant." — Solicitors' Journal. " Mr. Foa is a bold man to undertake the exposition of a branch of law so full of difficulties and encum- bered bysD many decisions as the Law of Landlord and Tenant. But his boldness is justified bythe excellent arrangement and by the lucid statements which characterise his book."— Zfiw Quarterly Review. "Mr. Foa's is a compact work, treating (i) of the creation of the relationship; (2) the incidents of creation (distress) and determination of the relationship : (3) modes and incidents of determination. We commend it to the attention of the Prol"ession, and predict for Foa on Landlord and Tenant a very useful and very permanent future." — Lanv Times. " We have nothing but praise for the work, and we shall be astonished if it does not take rank m course of time as one of the best— if not the best— work for every-day practice on the subject of Landlord and Tenant." — I^tt7u Notes. " Without making any invidious comparison with existing works on the subject, we may frankly say that Mr. Foa's work indisputably possesses merit. . . . Our verdict on the book must be a decidedly favourable one." — Law Stttdents' Jotimal. . " * The Relationship of Landlord and Tenant,' written by Mr. Edgar Foa, Barnster-at-Law, affords a striking instance of accuracy and lucidity of statement. The volume should be found useful not only by lawyers but by landlords and tenants themselves, the law in each particular being stated with a simplicity and clearness which bring it within the grasp of the lay mind." — Law Gazette. Second Edition, in one Volume, medium 8vo, price 35^., cloth, EMDEN'S COMPLETE COLLECTION OF PRACTICE STATUTES, ORDERS AND RULES. Being a Selection of such Practical Parts of all Statutes, Orders and Rules, as are now in force, and relate to the Practice and Procedure of the Supreme Court. From 1275 to 1886. With Tabulated Summaries of the Leading Cases and Analytical Cross-references. By ALFRED EMDEN OF THE INNHE TEMPLE, ESQ., BARRISTEE-AT-LAW ; AUTHOR OF "THE PRACTICE IH WINDING-UF companies;" "the law relating to building, building LEASES, AND contracts; " THE shareholder's LEGAL GUIDE," ETC. ASSISTED BY HERBERT THOJVIPSON, M.A., of THE INNER TEMPLE, BARRISTER-AT-LAW. 12. STEVENS 6- HAVNES, BELL YARD, TEMPLE BAR. Just published, in royal 8vo, cloth, 2%s., A TREATISE ON THE LAW AND PRACTICE RELATING TO LETTERS PATENT FOR INVENTIONS. WITH AN APPENDIX OF STATUTES, INTERNATIONAL CONVENTION, RULES, FORMS AND PRECEDENTS, ORDERS, &c. By ROBERT FROST, B.Sc. (Lond,), FELLOW OF THE CHEMICAL SOCIETY \ OF LINCOLN'S INK, ESQUIRE, BARRISTER*AT-LAW. " In our view a good piece of work may create a demand, and without disparaging existing literature upon the subject of patents, we think the care and skill with which the volume by Mr. Frost has been compiled, entitles it to recognition at the hands of the profession. . . . Judging Mr. Frost oirthis ground, we find him completely satisfactory. A careful examination of the entire volume satisfies us that great care and much labour have been devoted to the production of this treatise, and we think that patent agents, solicitors, the bar and the bench, may confidently turn for guidance and instruction to the pages of Mr. Frost." — Laiv Times, "Few practice books contain so much in so reasonable a space, and we repeat that it will be found generally useful by practitioners in this important branch of the law. ... A capital index concludes the book." — Law youmal. " The book is, as it professes to be, a treatise on patent law and practice, the several topics being con- veniently arranged and discussed in the thirteen chapters which form the body of the work, to which are appended statutes, rules, and forms. The statements of the law, so far as we have been able to test them, appear to be clear and accurate, and the author's style is pleasant and good. . . . The book is a good one, and will make its way. The index is better than usual. Both paper and type are alio ^^CfXi^Xit"-— Solicitors' youmal. In royal 8vo, price 36i-., in cloth, A PRACTICAL TREATISE ON THE LAW OF BUILDING AND ENGINEERING CONTRACTS, And of the DUTIES and LIABILITIES of ENGINEERS, ARCHITECTS, SURVEYORS AND VALUERS, WITH AN APPENDIX OF PRECEDENTS, ANNOTATED BY MEANS OF REFERENCE TO THE TEXT AND TO CONTRACTS IN USE. AND AN APPENDIX OF UNREPORTED CASES ON BUILDING AND ENGINEERING CONTRACTS. By ALFRED A. HUDSON, OF THE INNER TEMPLE, DARRISTER-AT-LAW. " A very full index completes the book. Mr. Hudson has struck out a new line for himself, and pro- duced a work of considerable merit, and one which will probably be found indispensable by practitioners, inasmuch as it contains a great deal that is not to be found elsewhere. The Table of Cases refers to all the reports." — Law ypurttal. "Mr. Hudson, liaving abandoned his profession of an architect to become a barrister, hit upon the idea of writing this work, and he has done it with a thoroughness which every houseowner would like to see bestowed upon modern houses The Index and Table of Cases reveal a vast amount of industry expended upon detail, and we shall be much surprised if Mr. Hudson does not reap the reward of his labours by obtaining a large and app'cciative public." — Lttiv Times. " The author of this somewhat bulky volume haSj ^^■ithin the compass of some goo pages, dealt in a practical and exhaustive manner with the Law of Building and Engineering Contracts. ... An Index of Precedents and a good General Index will be found at the end of the •xorV.—Solicitors' youmal. "... has enabled him to produce a work which, regarded both from the lawyei 's and from the architect's and builders point of view, must be pronounced excellent. It is good from the lawyer's standpoint as bemg logical in arrangement, clear in statement, and generally accurate in the law laid down. The archi- tect or engineer will also give it praise for answering the questions precisely which arise in his deaUngs with his employers. — Scotsman, STEVENS dr- HAYNES, B ELL YARD, TEMPLE BAR. 13 Second Edition. In 8vo, price \os. dd., cloth, OUTLINES OF THE LAW OF TORTS. By RICHARD RINGWOOD, M.A., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF "PRINCIPLES OF BANKRUPTCY," &C., AND LECTURER ON COMMON LAW TO THE INCORPORATED LAW SOCIETY. Ihisisawork by the well-known author of a student's book on Bankruptcy. Its groundwork is a series of lectures delivered in 1887 by Mr. Ringwood, as lecturer appointed by the Incorporated Law society. It IS dear, concise, well and intelligently written and one rises from its perusal with feeling! of pleasure. . . . After perusing the entire work, we can conscientiously recommend it to students."— /.aw Stnaenfs Jourrial. " V'' 'J?'"'' '^ °"t "' T" ''"commend to law students, and the able way in which it is written reflects much credit upon the author. — Law Times. " Mr. Ringwood's book is a plain and straightforward introduction to this branch of the \a.vr."—Law jFournaL Sixth Edition, in Svo, in preparation. THE LAW OF COMPENSATION FOR LANDS, HOUSES, &c. UNDER THE LANDS CLAUSES, RAILWAY CLAUSES CONSOLIDATION AND METROPOLITAN ACTS, THE ARTIZANS AND LABOURERS' DWELLINGS IMPROVEMENT ACT, 1875, WITH A FULL COLLECTION OF FORMS AND PRECEDENTS. By eyre LLOYD, OF THE INNER TEMPLE, BARRISTER-AT-LAW. SIXTH EDITION. By W. J. BROOKS, OF THE INNER TEMPLE, BARRISTER-AT-LAW. ' /« prmftding the le^al profession wiih a book ivhich contains the decisions of the Courts of Law and Equity upon tkf various statutes relating to the Law of Compemation, Mr. Eyre Lloyd has long since left all competitors in the distance, and his book may now be considered the standard work upon ike sub- ject. The plan of Mr. Lloyds book is generally known, and its lucidity is appreciated; the present guHe fulfils all the promises of the preceding editions, and contains in addition to other matter a complete set of forms wider the Artisans and Labourers Act, 1875, and specimens of Bills of Costs ^ whichwill be found a novel feature^ extremely useful to legal practitiotiers" — Justice of the Peace. In 8vo, price 1$.^ cloth, THE SUCCESSION LAWS OF CHRISTIAN COUNTRIES, WITH SPECIAL REFERENCE TO THE LAW OF PRIMOGENITURE AS IT EXISTS IN ENGLAND. By eyre LLOYD, B.A., Barrister-at-Law. In crown Svo, price (>s. , cloth, ESSAYS IN JURISPRUDENCE AND LEGAL HISTORY, By JOHN W. SALMOND, M.A., LL.B. (Lond.), A BARRISTER OF THE SUPREME COURT OF NEW ZEALAND. In crown Svo, price 6s., cloth. THE FIRST PRINCIPLES OF JURISPRUDENCE. By JOHN W. SALMOND, M.A., LL.B., BAKRISTER-AT-LAW; author of "essays in JURISPRUDENCE AND LEGAL HISTORY." 14 STEVEAS &- ffAYNES, BELL YARD, TEMPLE BAR, In one volume, royal 8vo, price 42^., cloth, PRINCIPLES OF THE LAW OF NEGLIGENCE. By THOMAS BEVEN, OF THE INNER TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF *' THE J,AW OF EMPLOVER's LIABILITY FOR THE NEGLIGENCE OF SERVANTS CAUSING INJURY TO FELLOW SERVANTS." " He has treated the well-ltnown subject of Negligence in a scientific way, and has not been content with merely collecting, in more or less relevant positions, a number of cases which anyone could find for himself in any Digest of Law Reports, but has endeavoured to reduce from the chaos of decided cases a systematic study of the subject, with clear enunciations of the principles he finds governing the various decisions. In the arrangement of the book the author has been very happy in his method, a by no means easy task in the treatment of a subject in which each branch of it in reality overlaps another. ... A good index and clear type increase the value of a book which will without doubt receive the hearty commendation of the profession as a successful completion of the author's ambitious task." — Laiv Times. " The reader who lakes these as samples of the work, will find how careful and exhaustive Mr. Eeven has been, and how valuable a contribution he has made to the important branch of the law with which he has undertaken to ^^2\" - Solicitor' s Jonrjiai. " In respect of the style of treatment of the subject, the book must be highly commended. It will be of service to every lawyer who wishes rather to get an intelligent understanding of the Law of Negligence, than merely to find correct and reliable legal propositions for practical use and that whether he be a student or a practitioner. To the student the work is valuable for the searching and well-sustained discussion of the cases ; and to the practitioner there are presented all the cases that b^r on most points for which he may be in search of authority. One of the chief merits of the work is, that all the available authority on each point is collected and so arranged that it can be easily found." — Juridical Rei'iciv. _ *' Contains evidence of much serious work, and ought to receive a fair trial at the hands of the profes- sion." — Law Quarterly Revieiv. "This is the most elaborate wurk on the Law of Negligence which has yet appeared in England. . . . His treatment is original, and has evidently not been adopted without great research, care, and revision." —Law Jourital. In one large vol., Svo, price 32J., doth, INSTITUTES AND HISTORY OF ROMAN PRIVATE LAW, WITH CATENA OF TEXTS. By Dr. CARL SALKOWSKI, Professor of Laws, Konigsberg. Translated and Edited by E. E. Whitfield, M.A. (Oxon.). In Svo, price 4J. dd. , cloth, THE NEWSPAPER LIBEL AND REGISTRATION ACT, 1881. Witli a statement of tlie Law of Libel as affecting Proprietors, Publishers, and Editors of Newspapers. By G. Elliott, Barrister-at-Law, of the Inner Temple. In one volume, royal Svo, price 30J., cloth, CASES AND OPINIONS ON CONSTITUTIONAL LAW, AND VARIOUS POINTS OF ENGLISH JURISPRUDENCE. Collected and Digested from Official Documents and other Sources; with Notes, By William Forsyth, M.A., M.P., Q.C., Standing Counsel to the Secretary of Slate in Council of India, Author of " Hortensius," "History of Trial by Jury," "Life of Cicero,'' etc., late Fellow of Trinity College, Cambridge. STEVE.\S &- IIAYNES, BELL YARD, TEMPLE BAR. 15 Fifth Edition, in 8vo, price loj. 61/., clolh, THE PRINCIPLES OF BANKRUPTCY. WITH AN APPENDIX, CONTAINING THE CONSOLIDATED RULES OF 1886 k 1890, SCALE OF COSTS. 1886, AND THE BILLS OF SALE ACTS, 1878, 1882 k 1890, Etc., Etc. By RICHARD RINGWOOD, M.A., OF THE MIDDLE TEMPLE, BAKRISTER-AT-LAW ; LATE SCHOLAR OF TRINITY COLLEGE, DUBLIN. "This edition is a considerable improvement on the first, and although chiefly written for the use of Students, the work will be found useful to the practitioner." — Laiv Times. " Those who have to deal with the subject in any of its practical legal aspscts will do well to consult Mr. , Ringwood's unpretending but useful volume." — Law Magazine. " His book does not profess to be an exhaustive treatise on bankruptcy law, j'et" in a neat and compact volume we have a vast amount of nell-digested matter. The reader is not distracted and puzzled by having a long list of cases flung at him at the end of each page, as the general effect of the law is stated in a few well-selected sentences, and a reference given to the leading decisions only on the subject. . . An excellent index, and a table of cases where references to four sets of contemporary reports may be seen at a glance, show the industry and care with which the work has been done.' — Daily Paper. Sixth Edition, 1890, in royal l2mo, pn::e 20J., doth, With Supple menl^ 1891, containing the Act and Rules, 1890, A TREATISE UPON THE LAW OF BANKRUPTCY AND BILLS OF SALE. WITH AN APPENDIX CONTAINING THE BANKRUPTCY ACT, 1883 ; GENERAL RULES AND FORMS OF 1886; SCALE OF COSTS AND FEES OF 1886; RULES UNJJER S. 122 OF 1888 ; BANKRUPTCY (COUNTY COURT APPEALS) ACT, 1884; BANKRUPTCY DISCHARGE ACT, 1887; RULES AND FORMS; BANKRUPTCY (PREFERENTIAL PAYMENTS) ACT, 1888; DEEDS OF ARRANGEMENT ACT, 1887; RULES AND FORMS; BOARD OF TRADE AND COURT ORDERS; DEBTORS ACTS, 1869, 1878, and RULES, 1889; BILLS OF SALE ACTS, 1878, 1882, and RULE.S, 1883. By EDWARD T. BALDWIN, M.A., OF THE INNER TEMPLE, BARRISTER-AT-LAW, *^* The Supplement may be had separately^ price y, cloth, " His new edition is in every respect satisfactory." — Law Times. ** It is a thoroughly good and reliable work. . . . We think— as practitioners— that we would rather have this book than any other on the same subject in our library." — Laiv Students' Jownial. " ftlr. Baldwin's book has a well-eained reputation fur conciseness, clearness, and accuracy As a terse and readable treatise on Bankruptcy law his work may be commended to our readers. , . . There is a enod \xidGK."—Soticttors' Jonr/iat. "The present edition appears to be quite equal in excellence to its predecessors, and for prnclilioner's purposes the hook is all that can be de-sired." — Law Notes, 16 STEVENS df HAYNES, BELL \ARD, TEMPLE BAR. Second Edition, in one vol., price 20^., cloth, A COMPENDIUM OF THE LAW OF PROPERTY IN LAND. FOR THE USE OF STUDENTS AND THE PROFESSION. SECOND EDITION. Rt WILLIAM DOUGLAS EDWARDS, LL.B., OF Lincoln's inn, barrister-at-law. " We consider it one of the best worlts published on Real Property Law.'' — Law Situients' younial. " Another excellent compendium wbich has entered a second edition is Mr. Edwards* 'Compendium of the Law of Property in Land.' No work on English law is written mere perspicuously. . . . Mr. Edwards has manifestly bestowed the utmost care in putting into the most modem are?s a treatise which we think will continue to grow in the estimation of the profession." — Laiv Times. " We formed a very favourable opinion of the first edition of this little book, and our opinion is con- firmed by the perusal of the second edition. The author has the merit of being a sound lawyer, a merit erhaps not always possessed by the authors of legal text books for students." — Law Quarterly Review. '*The book is certainly destined to take a high place as a standard work on the Law of Property in Land. The style is good, the conclusions of law are accurate, and the authorities are well selected. • • ; • The amount of detail is much greater than in Williams As a companion volume to it, we can with great confidence recommend it to the student ; and the practitioner will find it a very useful epitome of the modern law. Altogether it is a work for which we are indebted to the author, and is worthy of the improved notions of law wliich the study of jurisprudence is bringing to the ixoxiX." -Solicitor i* yournal. ** This book shows signs of thorough work throughout The book is a business-like and useful performance." — Laiv Jotitnal. Third Edition, royal 8vo, price 38J., cloth. THE LAW OF CORPORATIONS AND COMPANIES. A TREATISE ON THE DOCTRINE OF ULTRA VIRES: BEING An Investigation of the Principles which Limit the Capacities, Powers, and Liabilities of CORPORATIONS, AND MORE ESPECIALLY OF JOINT STOCK COMPANIES. By SEWARD BRICE, M.A., LL.D., London, OF THE INNER TEMPLE, ONE OF HER MAJESTY'S COUNSEL. THIRD EDITION. REVISED THROUGHOUT AND ENLARGED, AND CONTAINING THE UNITED STATES AND COLONIAL DECISIONS. REVIEWS. ". . . . On the whole, we consider Mr. Brice's exhaustive ivork a valuable addilioH to the literatureaf the fiv/eision. —Saturday Review. ' " It is Ihe Law of Corporations that Mr. Brice treats of (and treats of more fully, and at the came lime more scientifically, than any work with which we .ire acquainted), not the law of principal and agent ; and Mr. Bnce does not do his book justice by giving it so vague a title."— into yournal. "On thi? doctrine, first introduced in the Common Law Courts in East Anglian Railway Co. v. Eastern Counties Railway Co., Brice on Ultra Vires may be read with advantage."— 7k*ij«»/ ./ Lord Justice Bramwell, in the Cast of Evershed v. L. &> JV. IV. Ry. Co. (L. R., 3 Q. B Kv i/i ) STEVENS &' ffAYNES, BELL YARD, TEMPLE EAR. Sixth Edition, in royal 8vo, price 34^., cloth, BUCKLEY ON THE COMPANIES ACTS. SIXTH EDITION BY THE AUTHOR. THE LAW AND PRACTICE UNDER THE COMPANIES ACTS, 1862 TO 1890, AMD THE LIFE ASSURANCE COMPANIES ACTS, 1870 TO 1872, Including the Companies (Memorandum of Association) Act, The Companies (Winding-up) Act, and the Directors' Liability Act, ^ %unX\sit on the gJato of Joint jStotk Comiwui«», CONTAINING THE STATUTES, WITH THE RULES, ORDERS, AND FORMS, TO REGULATE PROCEEDINGS. By H. burton BUCKLEY, M.A., OF LINCOLN'S INN, ESQ., ONE OF HER MAJESTY'S COUNSEL. Second Edition, in royal 8vo., price 36^., cloth. THE LAW RELATING TO SHIPMASTERS AND SEAMEN. THEIR APPOINTMENT, DUTIES, POWERS, RIGHTS, LIABILITIES, AND REMEDIES. By THE LATE JOSEPH KAY, Esq., M.A., Q.C, SECOND EDITION. By the Hon. J. W, MANSFIELD, M.A., and G. W. DUNCAN, Esq., B.A., OF THE INNER TEMPLE, BARRISTERS-AT-LAW. REVIEWS OF THE SECOND EDITION: "It will, however, be a valuable book of refer- ence for any lawyer desiring to look up a point connected with the rights and duties of a ship- master or a seaman— the list of cases cited covers nearly seventy pages — while any shipmaster, ship- agent or consul who masters this edition will be well posted up We hope this new Edition will be quickly appreciated, for the Editors have carried out an arduous task carefully and vf^W—Leiw yourna-tt April, 1894. " It has had practical and expert knowledge brought to bear upon it, while the case law is brought down to a very late date. ^ Considerable improvement has been made in the index." — Law Times, April, 1894. " The present Editors have attempted a very large task. Their work seems to have been very thorough, and we feel sure that it will prove itself valuable to the large circle for whose aid they Jiave intended it It certainly fulfils the modern require- ment of being ' up to date,' for the addenda embrace cases decided down to the end of February, 1894.' — Liverpecl Journal of Com- merce, April, 1894. 18 STEVENS iSr' HAYNES, BELL YARD, TEMPLE BAR. Fourth Edition, in Royal 8vo, price 40^., cloth, THE JUDGMENTS, ORDERS, AND PRACTICE OF THE SUPREME COURT, CHIEFLY in RESPECT to ACTIONS ASSIGNED to the CHANCERY DIVISION. By LOFTUS LEIGH PEMBERTON, One of the registrars of the Supreme Court of Judicature ; and Author of " The Practice in Equity by way of Revivor and Supplement." "The work under notice ought to be of considerable service to the profession The forms throughout the work — and ihey arc the most important element in it — appear to us to be accurate, and of the most approved type. This fact alone will commend the new edition to practitioners in the Chancery Division. There is a useful table of the Lord Chancellors and Judges at the beginning of the book, and a very full index concludes it." — Laiv Times. In demy l2mo, price 5^., THE STATUTORY LAW RELATING TO TRUSTEE SAVINGS BANKS (1863-1891), together with the Treasury Regu- lations (1888— 1889), and the Scheme for the Appointment of the Inspection Committee of Trustee Savings Banks. By Urquhart A. Forbes, of Lincoln's Inn, Esq., Barrister-at-Law, Author of " The I^aw Relating to Savings Banks ; " the "Law of Savings Banks since 1878;" and joint Author of "The Law Relating to Water. " In demy l2mo, price ts,, cloth, THE LAW OF SAVINGS BANKS SINCE 1878; AVith a Digest of Decisions made by the Chief Registrar and Assistant Registrars of Friendly Societies from 1878 to 1882, being a Supplement to the Law relating to Trustee and Post Office Savings Banks. By U. A. FORBES, of Lincoln's Inn, Barrister-at-Law. *^* The complete work can be had^ pjice los. 6^., cioih. In 8vo, price 15^., cloth, THE LAW AND PRACTICE RELATING TO THE ADMINISTRATION OF DECEASED PERSONS BY THE CHANCERY DIVISION OF THE HIGH COURT OF JUSTICE; WITH AN ADDENDA giving the alterations effected by the NEW ETJLES of X883, And an APPENDIX OF ORDERS AND FORMS, Annotated by References to the Text. By W. GREGORY WALKER and EDGAR J. ELGOOD, OF Lincoln's inn, barristeks-at-law. " In this volume the most important branch of the administrative business of the Chancery l->ivi- sion is treated with conciseness and care. Judging from the admirable clearness of expression which characterises the entire work, and the labour which has evidently been bestowed on every detail, we do not think that a literary executorship could have devolved upon a more able and conscientious vepre- pcntatiye .... Useful chapters are introduced in their appropriate places, dealing with the ' Parties to administration actions,' ' The proofs of claims in Chambers,' and * The cost of adminis- tration actions.' To the last-mentioned chapter we gladly accord special praise, as a clear and succinct summary of ^the laWj from which so far as we have tested it, no proposition of any importance has been omitted .... An elaborately constructed table of cases, with references in separate columns to all the reports, and a fairly good index, much increase the utility of the ■WQrV,"—Solicitors' Journal. In Foolscap 8vo, superfine paper, bound in Vellum, price 3^-. 6(/. nett, *#* A limited munber of copies have bean printed upon large paper ^ price "js. 6d. 7iett, SCINTILLAE JURIS. By CHARLES J. DARLING, Q.C., M.P. With a Frontispiece and Colophon by Feank Lockwood, Q.C, M.P. Fourth Edition (Enlarged). " 'ScintiUae Juris' is thnt little bundle of humorous essays on law and cognate matters which, since the day of its first appearance, some years ago, hi>s been the delight of legal circles. . . . It has a quality of style which suggests much study of Bacon in his lighter vem. Its best essays would not be unworthy of the ICssays, and if read out, one by one, before a blindfolded connoisseur, might often be assigned to that wonderful book." — Daily Nnvs. STEVENS 6- IIAYNES, BELL YARD, TEMPLE BAR. 19 Second Edition, in 8vo, price 25s., cloth, THE PRINCIPLES OF THE LAW OF RATING OF HEREDITAMENTS IN THE OCCUPATION OF COMPANIES. By J. H. BALFOUR BROWNE, OF THE MIDDLE TEMPLE, Q,C., And D. N. McNAUGHTON, of the Middle Temple, Barrister-at-Law. "The tables and specimen valuations which are printed in an appendix to this volume will be of great service to the parish authorities, and to the legal practitioners who may have to deal with the rating of those properties which are in the occupa- tion of Companies, and we congratulate Mr. Browne on the production of a clear and concise book of the system of Company Rating. There is no doubt that such a work is much needed, and we are sure that all those who are interested in, or have to do with, public rating, will find it of great service. Much credit is therefore due to Mr. Browne for his able treatise — a work which his experience as Registrar of the -Railway Commission peculiarly qualified him to undertake " — Laxv Magazine. In 8vo, 1875, P"ce 7j. 6(/., cloth, THE LAW OF USAGES & CUSTOMS : % |rattical fata Sract. By J. H. BALFOUR BROWNE, OF THE MIDDLE TEMPLE, Q.C. "We look Upon this treatise as a valuable addition to works written on the Science of Law." — Canada Laio Journal. ■ "As a tract upon a very troublesome department of Law it is admirable — the principles laid down are sound, the illustrations are well chosen, and the decisions and dicta are harmonised so far as possible and distinguished when necessary." — Irish Laiv Times. "As a book of reference we know of none so comprehensive dealing with this particular branch of Common Law In this way the book is invaluable to the practitioner." — Law Magazine. In one volume, 8vo, 1875, price iSj., cloth, THE PRACTICE BEFORE THE RAILWAY COMMISSIONERS UNDER THE REGULATION OF RAILWAY ACTS, 1873 & 1874; With the Amended General Orders of the Commissioners, Schedule of Forms, and Table of Fees : together with the Law of Undue Preference, the Law of the Jurisdiction of the Railway Commissioners, Notes of their Decisions and Orders, Precedents of Forms oT Applications, Answers and Replies, and Appendices of Statutes and Cases. By J. H. BALFOUR BROWNE, OF THE MIDDLE TEMPLE, Q.C. " Mr. Browne's book is handy and convenient in form, and well arranged for the purpose of refer- ence : its treatment of the subject is fully and carefully worked out : it is, so far as we have been able to teat it, accurate and trustworthy. It is the work of a man of capable legal attainments, and by official position intimate with his subject ; and we therefore think that it cannot fail to meet a real want and to prove of service to the legal profession and the public." — Law Magazine. In 8vo, 1876, price 7j. td.^ cloth, ON THE COMPULSORY PURCHASE OF THE UNDERTAKINGS OF COMPANIES BY CORPORATIONS. And the Practice in Relation to the Passage of Bills for Compulsory Purchase through Parliament, By J. H. Balfour Browne, of the Middle Temple, Q.C. both by the promoters and opponents, and as this was the first time in which the principle of com- pulsory purchase was definitely recognised, there " This is a work of considerable importance to all Municipal Corporations, and it is hardly too much to say that every member of these bodies should have a copy by him for constant reference. Probably at no very distant date the property of all the existing gas and water companies will pass under municipal control, and therefore it is exceedingly desirable that the principles and conditions under which such transfers ought to be made should be clearly under- stood. This task is made easy by the present volume. The stimulus for the publication of such a work was given by the action of the Parliamentary Csmmittee which last session passed the preamble of the ' Stockton and Middlesborough Corporations Water Bill, 1876.' The volume accordingly con- tains a full report of the case as it was presented can be no doubt that it will long be regarded as a leading case. As a matter of course, many inci- dental points of interest arose during the progress of the case. Thus, besides the main question of compulsory purchase, and the question as to whether there was or was not any precedent for the Bill, the questions of water compensations, of appeals from one Committee to another, and other kindred sub- jects were discussed. These are all treated at length by the Author in the body of the work, which is thus a complete legal compendium on the large subject with which it so ably deals," P ? 2D STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. In crown 8vo, price loj. bd., cloth, THE LAW OF EVIDENCE, By S. L. PHIPSON, M.A., of the Inner Temple, Barrister-at-Law. "This book condenses a head of law into a " We are of opinion__that Mr. Phipson has pro comparatively small compass — a class of literary undertaking to which every encouragement should be given. . . . The volume is most portable, most compendious, and as far as we have been able to examine it, as accurate as any law book can be expected to be." — Law Times. duced a book which will be found very serviceable, not only for practitioners, but also for students. We have triea it in a good many places, and we find that it is well brought down to date."— Zaw Journal. In 8vo, 1878, price 6j., cloth, THE LAW RELATING TO CHARITIES, ESPECIALLY WITH REFERENCE TO THE VALIDITY AND CONSTRUCTION OF CHARITABLE BEQUESTS AND CONVEYANCES. By FERDINAND M. WHITEFORD, of Lincoln's Inn, Barrister-at-Law. In 8vo, 1872, price Is. dd., cloth, AN EPITOME AND ANALYSIS OF SAYIGNY'S TREATISE ON OBLIGATIONS IN ROMAN LAW. By ARCHIBALD BROWN, M.A. EDIN. AND OXON., AND B.C.L. OXON., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. " Mr. Archibald Brown deserves the thanks 1 the French translation consisting of two volumes, of all interested in the science of Law, whether with some five imndred pages apiece, as compared as a study or a practice, for his edition of 1 with Mr. Brown's thin volume of a hundred and Herr von Savigny's great work on * Obligations.' [ fifty pages. At the same time the pith of Von Mr. Brown has undertaken a double task — the ! Savigny's matter seems to be very successfully pre- translation of his author, and the analysis of his I served, nothing which might be useful to the author's matter. That he has succeeded in reducing | English reader being apparently omitted." — Law the bulk of the original will be seen at a glance ; . Journal. THE ELEMENTS OF ROMAN LAW. Second Edition, in ciown 8vo, price 6j., cloth, A CONCISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN. With copious References arranged in Parallel Columns, also Chronological and Analytical Tables, Lists of Laws, dr=f. iSr-i-. Primarily designed for the Use of Students preparing for Examination at Oxford, Cambridge, and the Inns of Court. By SEYMOUR F. HARRIS, B.C.L., M.A., WORCESTER COLLEGE, OXFORD, AND THE INNER TEMPLE, BARRISTER-AT-LAW ; AUTHOR OK "universities AND LEGAL EDUCATION." "Mr. Mams' s digest ought to have very great success among law sttulents both in the Inns of Court and the Universities. His book gives evidence of praiseivorthy accuracy and laborious condensation." — Law Journal. " This book contains a summary in English of the elements of Roman Law as contained in the works of Gaius and fustiniaii, and is so arranged that the reader can at once see what are the opinions of either of these two writers on ectch point. From the veiy exact and accurate references to titles and sections given he can at once refer to the original writers. 7he concise manner in tvhich Mr. Harris has arranged his digest will render it most useful, not only to the students for whom it was originally written, but also to those persons who, though they have not the time to wade through the larger ti eatises of Post!, Sanders, Ortolan, and others, yet desire to obtain some knowledge of Roman Law." — Oxford and Cambridge Undergraduates' Journal. "Mr. Harris deserves the credit of having produced an epitome which will be of service to those numerous students who have no time or sufficient ability to analyse the Institutes for themnlves." — Law Timks. WORKS FOR LA IV STUDENTS. 21 Fourth Edition, in 8vo, price 2is., cloth, ENGLISH CONSTITUTIONAL HISTORY: fROM THE TEUTONIC INVASION TO THE PRESENT TIME. Jiiststtci «s a lext-book fax J^tuicnts aivb other*, By T. p. TASWELL-LANGMEAD, B.C.L., OF Lincoln's inn, barrister-at-law, formerly vinerian scholar in the university, AND late professor OF CONSTITUTIONAL LAW AND HISTORY, UNIVERSITY COLLEGE, LONDON. Fourth Edition, Revised throughout, with Notes and Appendices. By C. H. E. Carmichael, M.A. Oxon, Mr. Carmichael has performed his allotted task with credit to himself, and the high standard of excellence attained by Taswell- Langmead's treatise is worthily maintained. This, the third edition, will b« found as useful as its predecessors to the large class of readers and students who seek in its pages accurate knowledge of the history of the constitution." — Law Times. "To the student of constitutional law this work will be invaluable The book is remarkable for the raciness and vigour of its style. The editorial contributions of Mr. Carm'chael are judicious, and add much to the value of the work." — Scottish Law Revieiv. I* The work will continue to hold the field as the best class-book on the AM\i\&zt"—Conte>nporaty Reviexv. " The book is well known as an admirable introduction to the study of constitutional law for students at law Mr. Carmichael appears to have done the work of editing, made necessary by the death of Mr. Taswell-Langmead, with care and judgment." — Law Journal. ** The work before us it would be hardly possible to praise too highly. In style, arrangement, clearness, and size, it would be difficult to find anything better on the real history of England, the history of its constitutional growth as a complete story, than this volume." — Boston {^U.S}) Literary World. "As it now stands, we should find it hard to name a better text-book on English Constitutional History." — Solicitors' yattnial. " Mr. Taswell- Langmead's compendium of the rise and development of the English Constitution has evidently supplied a want The present Edition is greatly improved. . . . We have no hesitation in saying that it is a thoroughly good and useful work." — Spectator. " It is a safe, careful, praisewortHy digest and manual of all constitutional history and \a.\v."—Giobg. "The volume on English Constitutional History, by Mr. Taswell-Langmead, is exactly what such a history should be." — Staiidard, " Mr. Taswell-Langmead has thoroughly grasped the bearings of his subject. It is, however, in dealing with that chief subject of constitutional history — parliamentary government — that the work exhibits its great superiority over its rivals." — Academy. Second Edition, in 8vo, price 6j., cloth, HANDBOOK TO THE INTERMEDIATE AND FINAL LLB. OF LONDON UNIVERSITY ; (PASS AND HONOURS), Including A COMPLETE SUMMARY OF "AUSTIN'S JURISPRUDENCE," AND THE EXAMINATION PAPERS OF LATE YEARS in ALL BRANCHES. By A B.A., LL.B. (Lond.). " Increased in size and usefulness. . . . The book will undoubtedly be of help to those students who prepare themselves for examination. . . . The Appendix contains a good selection of papers set at the different examinations. "^Zaw Times. "A very good handbook to the Intermediate and Final LL.B. by a B.A., LL.B." — La^u Notes. In Crown 8vo, price 3.f. ; or Interleaved for Notes, price 4^., CONTRACT LAW. QUESTIONS ON THE LAW OF CONTRACTS. With Notes to the Answers. Founded on "Anson" " Chiity," and "Pollock." By Philip Foster Aldred, D.C.L., Hertford College and Gray's Inn ; late Examiner for the University of Oxford. ' *' This appears to us a very admirable selection of questions, comparing favourably with the average run of tho.se set in examinations, and useful for the purpose of testing progress." — Law jfouritai. 2-2 WORKS FOR LAW STUDENTS. Tenth Edition, in 8vo, price 25^., cloth, THE PRINCIPLES OF EQUITY. INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. By EDMUND H. T. SNELL, OF ThE MIDDLE TEMPLE, BARRISTER-AT-LAW. TENTH EDITION. By ARCHIBALD BROWN, M.A. Edin, & Oxon., & B.C.L. Oxon., OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF "A NEW LAW DICTIONARY, "an ANALYSIS OF SAVIGNY ON OBLIGATIONS," AND THE "LAW OF FIXTURES." REVIEWS. " Mr. Brown's long experience (he has edited seven editions of this book) has enabled him so to treat the subject as to be invaluable to students." — Law Joujiial. "This work on the 'Principles of Equity' has, since the publication of the First Edition, been recognised as the best elementary treatise on the subject, and it would not be necessary to say more of this Ediiion, than to mention the fact of its publication, were it not for the fact that the author, Mr. Snelt, is dead, and the late Editions have been brought out under the care of Mr. Browp. It seldom happens that a new editor is able to improve on the work of hi^ predecessor in its plan or its details. But in the case of the present work we find that each edition is a manifest improvement on the former ones, and well as Mr. Snelf did his work we discover that Mr. Brown has done it better."— Irish La-w Times. "This is the Ninth Edition of certainly one of the best, and probably the most widely read, text-bock which deals with any part of the English law." — Oxford Magazine. " It is ample proof of the popularity of ' Snell's Principles of Equity,' that it has now reached its Ninth -Edition in the hands of Mr. Archibald Brown." — Law Times. " This is now unquestionably the standard book on Equity for students." — Saturday Review. " On the whole we are convinced that the Sixth Edition of Snell's Equity is destined to be as highly thought of as its predecessors, as it is, in our opinion, out and out the best work on the subject with which it deals." — Gihsoni> Law Notes. " We know of no better introduction to the Principles of Equity J^ — Canada Law Journal. "Within the ten years which have elapsed since the appearance of the first edition of this work, its reputation has steadily increased, and it has long since been recognised by students, tutors, and practitioners, as the best elementary treatise on the important and difficult branch of the law which forms its subject." — Law Magazine and Review, Fourth Edition, in 8vo, price 6j., cloth, AN ANALYSIS OF SNELL'S PRINCIPLES OF EQUITY. Founded on the Tenth Edition. With Notes thereon. By E. E. Blyth, LL.D., Solicitor. " Mr. Blyth's book will undoubtedly be very useful to readers of Snell." — Law Times. " This is an admirable analysis of a good treatise— read with Snell, this little book will be found very profitable to the student." —La7v /onrnal. In 8vo, price 2j., sewed, QUESTIONS ON EQUITY. J^OH STUDENTS PREPARING FOR EXAMINATION. FOUNDED ON THE NINTH EDITION OF SNELL'S "PRINCIPLES OF EQUITY." By W. T. WAITE, llARRISTER-AT-LAW, HOLT SCHOLAK Of THE HONOURABLE SOCIETY OF GRAY'.? INN. WORKS FOR LAW STUDENTS. 23 Second Edition, in one volume, 8vo, price iSj-., cloth, PRINCIPLES OF CONVEYANCING. AN ELEMENTARY WORK FOR THE USE OF STUDENTS. By henry C. DEANE, OF Lincoln's inn, barrister-at-law, sometime lecturer to the incorporated law society OF THE UNITED KINGDOM. ** We hope to see this book, like SneWs Equity^ a standard class-book in all Laiv Schools xvkere English law is taught." — Canada Law Journal, " We like the work, it is well written and is an excellent student's book, and being only just pub- lished, it has the great advantage of having in it all the recent important enactments relating to convey- ancing. It possesses also an excellent index." — L.aw Students' Jour-nal. " Will be found of great use to students entering upon the difficulties of Real Property Law. It has an unusually exhaustive index covering some fifty pages." — Laiu Times. " In the parts which have been re-writtcn, Mr. Deane has preserved the same pleasant style marked by simplicity and lucidity which distinguished his first edition. After 'Williams on Real Property,' there is no book which we should so strongly recommend to the student entering upon Real Pro- perty Law as Mr. Deane's ' Principles of Convey- ancing,' and the high character which the first edition attained has been fully kept up in this second." — Law yoiirual. Fourth Edition, in 8vo, price loj., cloth, A SUMMARY OF THE LAW & PRACTICE IN ADMIRALTY. FOR THE USE OF STUDENTS. By EUSTACE SMITH, OF THE INNER TEMPLE; AUTHOR OF "a SUMMARY OF COMPANY LAW.'' *' The book is well arranged, and forms a good introduction to the subject." — Solicitors' yourual. " It is however, in our opinion, a well and carefully written little work, and should be in the hands of every student who is taking up Admiralty Law ^t the Final." — Law Students' Journal. '•'• Mr. Smith has a happy knack of compressing a large amount of useful matter in a small compass. The present work will doubtless be received with satisfaction equal to that with which his previous ' Summary ' has been met." — Oxford af id Cambridge Undergraduates' Journal, Third Edition, in Svo, price 7j. (id., cloth, A SUMMARY OF THE LAW AND PRACTICE IN THE ECCLESIASTICAL COURTS. FOR THE USE OF STUDENTS. By EUSTACE SMITH, OF THE INNER TEMPLE; AUTHOR OF "A SUMMARY OF COMPANY LAW," AND "a SUMMARY OF THE LAW AND PRACTICE IN ADMIRALTY." *' His object has been, as he tells us in his preface, to give the student and general reader a fair outline af the scope and extent of ecclesiastical law, of the principles on which it is founded of the Courts by which it is enforced, and the procedure by which these Courts are regulated. We think the book well fulfils its object. Its value is much enhanced by a profuse citation of authorities for the propositions contained in it." — Bar Exainhiation JournaL Fourth Edition, in Svo, price 7j. (>d., cloth, AN EPITOME OF THE LAWS OF PROBATE AND DIVORCE, , FOR THE USE OF STUDENTS FOR HONOURS EXAMINATION. By J. CARTER HARRISON, Solicitor. " The work is considerably enlarged, and we think improved, and will be found cf great assistance to students."— AaTO Students' Journal. 24 WOUKS FOR LAW STUDENTS. Sixth Edition. In one volume, 8vo, price 20^., cloth, PRINCIPLES OF THE COMMON LAW. INTENDED FOR THE USE OF STUDENTS AND THE PROFESSION. SIXTH EDITION. By JOHN INDERMAUR, Solicitor, AUTHOR OF "A MANUAL OF THE PRACTICE OF THE SUPREME COURT," " EPITOMES OF LEADING CASES," AND OTHER WORKS. "The student will find in Mr. Indermaur's book a safe and clear guide to the Prin- ciples of Common Law." — Lmv yournal, 1892. "The present edition of this elementary treatise has been in general edited with praise- worthy care. The provisions of the statutes affecting the subjects discussed, which have been passed since the publication of the last edition, are clearly summarised, and the effect of the leading cases is generally very well given. In the difficult task of selecting and distinguishing principle from detail, Mr. Indermaur has been very successful ; the leading principles are clearly brought out, and very judiciously illustrated."— Solicitors' Journal. "The work is acknowledged to be one of the best written and most useful elementary works for Law Students that has been published." — Law Times. " The praise which we were en.ibled to bestow upon Mr. Indermaur's very useful com- pilation on its first appearance has been justified by a demand for a second edition." — Lam Magazine, "We were able, four years ago, to praise the first edition of Mr. Indermaur's book as likely to be of use to students in acquiring the elements of the law of torts and contracts. The second edition maintains the character of the book." — Law Journal. "Mr. Indermaur renders even law light reading. He not only possesses the faculty of judicious selection, but of lucid exposition and felicitous illustration. And while his works are all thus characterised, his ' Principles of the Common Law ' especially displays those features. That it has already reached a second edition, testifies that our estimate of the work on its first appearance was not unduly favourable, highly as we then signified approval ; nor needs it that we should add anything to that estimate in reference to the general scope and execution of the work. It only remains to say, that the present edition evinces that every care has been taken to insure thorough accuracy, while including all the modifications in the law that have taken place since the original publication ; and that the references to the Irish decisions which have been now introduced are calculated to render the work of greater utility to practitioners and students, both English and Irish." — Irish Law Times. " This work, the author tells tis in his Preface, is written mainly with a view to the examinations of the Incorporated Law Society ; but we think it is likely to attain a wider usefulness. It seems, so far as we can judge from the parts we have examined, to be a careful and clear outline of the principles of the common law. It is very readable ; aiui not only students, but many practitioners and the public, might benefit by a perusal of Us /)a^j."— Solicitors' Journal, IIVXA'S FOR LAW STUDENTS. 25 Sixth Edition, in 8vo, price l+r., cloth, A MANUAL OF THE PRACTICE OF THE SUPREME COURT OF JUDICATURE, IN THE QUEEN'S BENCH AND CHANCERY DIVISIONS. Sixth Edition, adapted to the new Rules of Court of November, 1893. Intended for the use of Students and the Profession. By John Indermaur, Solicitor. " Mr. Indermaur has brought out a sixth edition of his excellent ' Manual of Practice ' at a very opportune tune, for he has been able to incorporate the effect of the new Rules of Court which came into force last November, the Trustee Act, 1893, and Rules, and the Supreme Court Fund Rules, 1893, as well as that of other Acts of earlier date. A very complete revision of the work has, of course been necessary, and Mr. Indermaur, assisted by Mr. Thwaites, has effected this with his usual thoroughness and careful attention to details. The book is well known and valued by students, but practitioners also find It handy in many cases where reference to the bulkier ' White Book ' is unnecessary."— Zaiu Times rebruary, 1894. ' " This well-kjiown students' book may very well be consulted by practitioners, as it contains a considerable amount of reliable information on the practice of the Court. It is written so as to include the new Rules, and a supplemental note deals with the alterations made in Rule XI by the Judges in January last. The praise which we gave to previous ed itions is quite due to the present issue."— Zaiu Journal, February, 1894. Seventh Edition, in 8vo, price ts., cloth, AN EPITOME OF LEADING COMMON LAW CASES; WITH SOME SHORT NOTES THEREON. Chiefly intended as a Guide to " Smith's Leading Cases." By John Indermaur, Solicitor (Clifford's Inn Prizeman, Michaelmas Term, 1872). " We have received the third edition of the ' Epitome of Leading Common Law Cases,' by Mr. Inder- maur, Solicitor. The first edition of this work was published in February, 1873, the second in April, 1874: and now we have a third edition dated September, 1875. No better proof of the value of this book can be furnished than the fact that in less than three years it has reached a third edition." — Law Journal. Seventh Edition, in 8vo, price 6j., cloth, AN EPITOME OF LEADING CONYEYANCING AND EQUITY CASES; WITH SOME SHORT NOTES THEREON, FOR THE USE OF STUDENTS. By John Indermaur, Solicitor, Author of " An Epitome of Leading Common Law Cases." "We have received the second edition of Mr. Indermaur's very useful Epitome of Leading Convey- ancing and Equity Cases. The work is very well done." — Law Times. "The Epitome well deserves the continued patronage of the class — Students — for whom it is especially intended. Mr. Indermaur will soon be known as the ' Students' Friend.' " — Cajtada Law Jourtutt. Sixth Edition, 8vo, price 6^-. cloth, THE ARTICLED CLERK'S GUIDE TO AND SELF-PREPARATION FOR THE FINAL EXAMINATION. Containing a Complete Course of Study, with Books to Read, List of Statutes, Cases, Test Questions, &c. , and intended for the use of those Articled Clerks who read by themselves. By JOHN Indermaur, Solicitor. "In this edition Mr. Indermaur- extends his counsels to the whole period from the Intermediate examination to the Final. His advice is practical and sensible : and if the course of study he recommends is intelligently followed, the articled clerk will have laid in a store of legal knowledge more than sufficient to carry him through the Final Examination." — Solicitors' Journal. Now ready, Fifth Edition, in 8vo, price lOJ., cloth, THE ARTICLED CLERK'S GUIDE TO AND SELF- PREPARATION FOR THE INTERMEDIATE EXAMINATION, As it now exists on Stephen's Commentaries. Containing a complete course of Study, with Statutes, Questions, and Advice. Also a complete Selected Digest of the whole of the Questions and Answers set at the Examinations on those parts of " Stephen " now examined on, embracing a period of fourteen and a half years (58 Examinations), inclusive of the- Examination in April, 1894, &c., &c., and intended for the use of all Articled Clerks who have not yet passed the Inter- mediate Examination. By John Indermaur, Author of " Principles of Com- mon Law," and other works. In 8vo, 1875, price 6^., cloth, THE STUDENTS' GUIDE TO THE JUDICATURE ACTS, AND THE RULES THEREUNDER: Being a book of Questions and Answers intended for the use of Law Students. By John Indermaur, Solicitor. 26 WORKS FOR LAW STUDENTS. Fifth Edition, in Crown 8vo, price 12s. 6d., cloth, AN EPITOME OF CONVEYANCING STATUTES, Extending from 13 Edw. I, to the End of 55 & 56 VictorI/E. Fifth Edition, with Short Notes. By George Nichols Marcy, of Lincoln's Inn, Barrister-at-Law. Second Edition, In 8vo, price 26j., cloth, A NEW LAW DICTIONARY, AND INSTITUTE OF THE WHOLE LAW ; EMBRACING FRENCH AND LATIN TERMS AND REFERENCES TO THE AUTHORITIES, CASES, AND STATUTES. SECOND EDITION, revised throughout, and considerably enlarged. By ARCHIBALD BROWN, M,A. EDIN. AND OXON., AND B.C.L. OXON.; OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW ; AUTHOR OF THE "law of fixtures," "ANALYSIS OF SAVIGNY'S OBLIGATIONS IN ROMAN LAW," ETC. Reviews of the Second Edition. " JV; far as we have been able to examine the work, it seems to have been most carefully and accurately executed, the present Edition, besides containing much nexu matter, having been thoroughly revised in consequence of the recent changes in the law ; and we have no doubt whatever that it will be found extremely tiseful, not only to students and practitioners, but to public men, and meit of letters." — Irish Law Times. "Mr. Brown has revised his Dictionary, and adapted it to the changes effected by the Judicature Acts, and it now constitutes a very useful work to put into the hands of any student or articled clerk, and a work which the practitioner will fitui of value for reference." — Solicitors' Journal. " // %uill prove a reliable guide to law students, and a handy book of reference for practitioners. " — Law Times. In Royal 8vo., price 5^., cloth, ANALYTICAL TABLES OF THE LAW OF REAL PROPERTY; Drawn up chiefly from STEPHEN'S BLACKSTONE, with Notes. By C. J. TARRING, of the Inner Temple, Barrister-at-Law. Tabi.k I. Tenures. „ II. Estates, according to quantity of Tenants* Interest. ,, III. Estates, according to the time at which the Interest is to be enjoyed. ,, IV, Estates, according to the number and connection of the Tenants. CONTENTS. Table V. Uses. VI. Acquisition cf Estates in land of freehold tenure. VII, Incorporeal Hereditaments. VIII. Incorporeal Hereditaments. " Great care and considerable skill have been shown in the compilation of these tables, whioh will be found of much service to students of the Law of Real Property."— -taw Times, IVORKS FOU LA IV STUDENTS. 27 Sixth Edition, in 8vo, price 20s., cloth, PRINCIPLES OF THE CRIMINAL LAW. INTENDED AS A LUCID EXPOSITION OF THE SUBJECT FOR THE USE OF STUDENTS AND THE PROFESSION. By SEYMOUR F. HARRIS, B.C.L., M.A. (Oxon.), AUTHOR OF "a CONCISE DIGEST OF THE INSTITUTES OF GAIUS AND JUSTINIAN." SIXTH EDITION, Bv C. L. ATTENBOROUGH, of the Inner Temple, B^rrister-at-Law, REVIEWS. " The characteristic of the present Edition is the restoration to the book of the character of ' a concise exposition' proclaimed by the title-page. Mr. Attenborough has carefully pruned away the excrescences which had_ arisen in successive editions, and has improved the work both as regards terseness and clearness of exposition. In both respects it is now an excellent student's book. The text is very well broken up into headings and paragraphs, with short marginal notes — the importance of which, for the convenience of the student, is too often overlooked." — Solicitors' yournal. ' We think the book— always a favourite with students— has got a new lease of life, and will now prove the only text book which most men will care to study until they get beyond the examination stage of their existence. _. . . On the whole our verdict is that the new Edition is distinctly a success, and we have no hesitation in commending it to the student as the best text book that exists for his purposes."— Z.rt7t/ Students' Jonriial. *' The favourable opinion we expressed of the first edition of this work appears to have been justified by the reception it has met with. Looking through this new Edition^ we see no reason to modify the praise we bestowed on the former Edition. The recent cases have been added and the provisions of the Summary fttrisdiction Act are noticed in the chapter relating to Summary Convictions. The book is one of the best manuals of Criminal Law for the sttident.^^ — Solicitors' Journal. " There is no lack of IVorks on Criminal Law^ but there tuas room for such a tiseful handbook of Principles as Mr. Seymour Harris has supplied. Accustomed^ by his previous labours, to the task of analysing the law, Mr. Harris has brought to bear upon his present work qualifications well adapted to secure the successful accomplishment of the object which he had set before hhn. That object is not an ambitious one, for it does not pi'etend to soar above utility to the young practitioner and the student. For both these classes, and for the yet wider class who may require a book of reference on the subject, Mr. Harris has produced a clear and convenient Epitome of the Law. A noticeable feature oj Air. Harris'^s work, which is likely to prove of assistance both to the practitioner and the sttcdent, consists of a Table of Offences, with their legal character, their punishment, and the statute under which it is inflicted, together zuith a reference to the pages zvhere a Statement of the Law will be found.'*'' — Law Magazine and Review. "This work purpprts to contain 'a concise exposition of the nature of crime, the various offences punish- able by the English law, the law of criminal procedure, and the law of summary convictions,' with tables of offences, punishments, and statutes. The work is divided into four books. Book I. treats of crime, its divisions and essentials ; of persons capable of committing crimes ; and of principals and accessories. Book 11. deals with offences of a public nature ; offences agamst private persons ; and offences against the property of individuals. Each crime is discussed in its turn, with as much brevity as could well be used consistently with a proper explanation of the le^al characteristics of the several offences. Book III. explains criminal procedure, including the jurisdiction of Courts, and the various steps in the apprehension and trial of criminals from arrest to punishment. This part of the work is extremely well done, the description of the trial being excellent, a,nd thoroughly calculated to impress the mind of the uninitiated. Book IV. contains a short sketch of ' summary convictions before magistrates out of quarter sessions.' The table of offences at the end of the volume is most useful, and there is a very full index. Altogether we must congratulate Mr. Harris on his adventure." — Laiv JoumaL ^* Mr. Ha7'ris has undertaken a tvork, in our opinion, so much needed that he might diminish its bulk in the next edition by obliterating the apologetic preface. The appearance of his volume is as well timed as its execution is satisfactory. The author has shoiun an ability of omission which is a good test of skill, and from the overwhelming mass of the criminal law he has discreetly selected just so much only as a learner needs to knoiu, and has presented it in tej'jns which render it capable of being easily taken into the mind." — j Solicitors' Journal. 28 WORKS FOR LAW STUDENTS. Second Edition, in crown 8vo, price ^s. 6d., cloth, THE STUDENTS' GUIDE TO BANKRUPTCY; Being a Comiilete Digest of the Law of Bankruptcy in the shape of Questions and Answers, and comprising all Questions asked at the Solicitors' Final Examinations in Bankruptcy since the Bankruptcy Act, 1883, and all important Decisions since that Act. By John Indermaur, Solicitor, Author of " Principles of Common Law,"&c., &c. In i2mo, price ^s. 6d., cloth, A CONCISE TREATISE ON THE LAW OF BILLS OF SALE, FOR THE USE OF LAWYERS, LAW STUDENTS, & THE PUBLIC. Embracing the Acts of 1878 and 1882. Part I.— Of Bills of Sale generally. Part II.— Of the Execution, Attestation, and Registration of Bills of Sale and satisfaction thereof. Part III.— Of the Effects of Bills of Sale as against Creditors. Part IV. — Of Seizing under, and Enforcing Bills of Sale. Appendix, Forms, Acts, &c. By John Indermaur, Solicitor. "The object of the book is thoroughly practical. Those who want to be told exactly what to do and where to go when they are registering a bill of sale will find the necessary information in this little book." — Law Jonntal, In 8vo, price 2s. dd. , cloth, A COLLECTION OF LATIN MAXIMS, LITERALLY TRANSLATED. INTENDED FOR THE USE OF STUDENTS FOR ALL LEGAL EXAMINATIONS. *' The book seems admirably adapted as a book of reference for students who come across a Latin maxim in their reading." — Laui yournal. In one volume, 8vo, price gj-. , cloth, LEADING STATUTES SUMMARISED, FOR THE USE OF STUDENTS. By ERNEST C. THOMAS, BACON SCHOLAR OF THE HON. SOCIETY OF GRAV's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD ; AUTHOR OF " LEADING CASES IN CONSTITUTIONAL LAW BRIEFLY STATED." Second Edition, in 8vo, enlarged, price 6j., cloth, LEADING CASES IN CONSTITUTIONAL LAW Briefly Stated, with Introduction and Notes. By ERNEST C. THOMAS, BACON SCHOLAR OF THE HON. SOCIETY OF CRAV's INN, LATE SCHOLAR OF TRINITY COLLEGE, OXFORD. " Mr. E. C. Thomas has put together in a slim octavo a digest of the principal ca.<;es illustrating Con- stitutional Law, that is to say, all cjuestions as to the rights or authority of the Crown or persons under it, as regards not merely the constitution and structure given to the governing body, but also the mode in which the sovereign power is to be exercised. In an introductory' essay Mr. Thomas gives a very clear and intelligent survey of tne general functions of the Executive, and the principles by which they are regulated ; and then follows a summary of leading cases." — Saturday Reviciv. *' Mr. Thomas gives a sensible introduction and a brief epitome of the familiar leading cases," — Law Times. In 8vo, price 8j., cloth, AN EPITOME OF HINDU LAW CASES. With Short Notes thereon. And Introductory Chapters on Sources of Law, Marriage, Adoption, Partition, and Succession. By William M. P. Coghi.an, Bombay Civil Service, late Judge and Sessions Judge of Tanna. STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. 29 Second Edition, in crown 8vo, price I2s. 6d., cloth, THE BANKRUPTCY ACT, 1883, With Notes of all the Cases decided under the Act ; The consolidated RULES and FORMS, 1886 ; The Debtors Act, 1869, so FAR AS APPLICABLE TO BANKRUPTCY MATTERS, WITH RULES AND FORMS thereunder ; THE BiLLS OF SALE ACTS, 1878 AND 1882 ; Board of Trade Circulars and Forms, and List of Official Receivers ; Scale of Costs, Fees, and Percentages, 1886 ; Orders of the Bankruptcy Judge of the High Court ; and a Copious Index, By WILLIAM HAZLITT, Esq., and RICHARD RINGWOOD, M.A., SENIOR SEGISTRAR IN BANKRUITCV, OF THE MIDDLE TEMPLE, ESQ., BAKKISTER-AT-LAW. Second Edition, by R. RINGWOOD, M.A., Barrister-at-Law, " This is a very handy edition of the Act and Rules The cross references and marginal references tocorrespondingprovisionsof the ActofiSegareexceedingly useful There is a veiy full index, and the book is admirably printed." — Solicitors* JoumaL Part I., price ^s. 6a?., sewed, LORD WESTBURY'S DECISIONS IN THE EUROPEAN ARBITRATION. Reported by Francis S. Rkilly, of Lincoln's Inn, Barrister-at-Law. Parts I., II., and III., price 25^., sewed, LORD CAIRNS'S DECISIONS IN THE ALBERT ARBITRATION. Barrister-at-Law. Reported by Fkancis S. Reilly, of Lincoln's Inn, Second Edition, in royal 8vo, price 30^-., cloth, A TREATISE ON THE STATUTES OF ELIZABETH AGAINST FRAUDULENT CONVEYANCES. The Bills of Sale Acts 1878 and 1882 and the LAW OF VOLUNTARY DISPOSITIONS OF PROPERTY. By THE LATE H. W, MAY, B.A. (Ch. Ch. Oxford), Second Edition, thoroughly revised and enlarged, by S. Worthington Worthington, of the Inner Temple, Barrister-at-Law. Editor of the "Married Women's Property Acts," Sth edition, by the late J. R. Griffith. " Mr. Worthington 's work appears to have been conscientious and exhaustive." — Saturday Review. Examining Mr. May's book, we find it con- *' In conclusion, we can heartily recommend this book to our readers, not only to those who are in large practice, and who merely want a cla-isified list of cases, but to those who have both the desire and the leisure to enter upon a systematic study of our \siw.'*— Solicitors" yonmal. "As Mr. Worthington points out, since Mr. May wrote, the 'Bills of Sale Acts' of 1878 and 1882 have been passed ; the ' Married Women's Property Act, 1882 '(making settlements by married women void as against creditors in cases in which similar settlements by a man would be void), and the * Bankruptcy Act, 1883.' These Acts and the deci- sions upon them have been handled by Mr. Worth- ington in a manner which shows that he is master of his subject, and not a slavish copyist of sections and head-notes, which is a vicious propensity of many modern compilers of text-books. His Table of Cases (with reference to all the reports), is admirable, and his Index most exhaustive."— Z-rtw Times. "The results of the authorities appear to be given well and tersely, and the treatise will we think be found a convenient and trustworthy book of reference." — La-w youriiah structed with an intelligence and precision which render it entirely worthy of being accepted as a guide in this confessedly difficult subject. The subject isan involved one, but with clean and clear handling it is here presented as clearly as it could be. . , . On the whole, he has produced a very useful book of an exceptionally scientific character." — Solicitors' Joumal. *' The subject and the work are both very good. The former is well chosen, new, and interesting ; the latter has the quality which always distin- guishes original research from borrowed labours." — American Law Review, "We arc happy to welcome his(Mr. May's)work as an addition to the, we regret to say, brief cata- logue of law books conscientiously executed. We can corroborate his own description of his labours, ' that no pains have been spared to make the book as concise and practical as possible, without doing so at the expense (^perspicuity or by the omission cf any important points.'" — Law Times. so STEVENS &= HAYNES, BELL YARD, TEMPLE BAR. In one volunne, medium 8vo., price 38^., Cloth ; or in Half-Roxburgh, 42^., A HISTORY OF THE FORESHORE AND THE LAW RELATING THERETO. With a Hitherto Unpublished Treatise by Lord Hale, Lord Hale's "De Jure Maris," and the Third Edition of Hall's Essay on the RIGHTS OF THE CROWN IN THE SEA-SHORE. With Notes, and an Appendix relating to Fisheries. By STUART A. MOORE, F.S.A., OF THE INNER TEMPLE, BARRISTER-AT-LAW "This work is nominally a third edition of the late Mr. Hall's essay on the rights of the Crown in the Sea-shore, but in reality is an absolutely new production, for out of some goo odd pages Hall's essay takes up but 227. Mr. Moore has written a book of great importance, which should mark an epoch in the history of the rights of the Crown and the subject in the litus tnarisf or foreshore of the kingdom. Hall's treatise (with Loveland's notes) is set out with fresh notes by the present editor, who i^ anything but kindly disposed towards his author, for his notes are nothing but a series of exposures of what he deems to be Hall's errors and misrepre- sentations. Mr. Moore admits his book to be a brief for the opposite side of the contention sup- ported by Hall, and a more vigorous and argu- mentive treatise we have scarcely ever seen. Its arguments are clearly and broadly disclosed, and supported by a wealth of facts and cases which show the research of the learned author to have been most full and elaborate. . . . There is no doubt that this is an important work, which must have a considerable influence on that branch of the law with which it deals. That law is contained in ancient and most inaccessible records ; these have now been brought to light, and it may well be that important results to the subject may flow therefrom. The Profession, not to say the general public, owe the learned author a deep debt of gratitude for providing ready to hand such a wealth of materials for founding and building up arguments. Mr. Stuart Moore has written a work which must, unless his contentions are utterly un- founded, at once become the standard text-book on the law of the Sea-shore."— Z^to Times, Dec. ist. " Mr. Stuart Moore in his valuable work on the Foreshore." — T/ie Times. " Mr. Stuart Mooie's work on the title of the Crown to the land around the coast of England lying between the high and low water-mark is something more than an ordinary law book. It is a historj', and a very interesting one, of such land and the rights exercised over it from the earliest times to the present day ; and a careful study of the facts contained in the book and of the argu- ments brought forward can scarcely fail to convince the reader of the inaccuracy of the theory, now so constantly put forward by the Crown, that without the existence of special evidence to the contrary, the^ land which adjoins riparian property, and which is covered at high tide, belongs to the Crown and not to the owner of the adjoining manor. The list which Mr. Moore gives of places where the question of foreshore has been already raised, and of those as to which evidence on the subject exists amongst the public records, is valu- able, though by no means exhaustive ; and the book should certainly find a place in the library of the lord of every riparian manor." — Morning Post. In one volume, 8vo, price I2J., doth, A TREATISE ON THE LAW RELATING TO THE POLLUTION AND OBSTRUCTION OF WATER COURSES ; Together with a Brief Summary of the Various Sources of Rivers Pollution. By CLEMENT HIGGINS, M.A., F.C.S., OF THE INNER TEMl'LE, UARKISTER-AT-LAW. "As a compendium of the law upon a special and rather intricate subject, this treatise cannot but prove of great practical valuej and more especially to those who have to advise upon the institution of proceedings under the Rivers Pollu- tion Prevention Act, 1876, or to adjudicate upon tho?e proceedings when brought." — Irish Latu Times. "We can recommend Mr. Higgins' Manual as the best guide we possess." — Public Health. "County Court Judges, Sanitary Authorities, and Riparian Owners will find in Mr. Higgins' Treatise a valuable aid in obtaining a clear notion of the Law on the Subject. Mr. Higgins has accomplished a work for which he will readily be recognised as having special fitness on account of his practical acquaintance both with the scientific and the legal aspects of his subject."— Zavy Maga- zine and Rez'iciv. • "The volume is very carefully arranged through- out, and will prove of great utility both to miners and to owners of land on the banks of rivers.* — The Mining Jottrnal. "Mr. Higgins writes tersely and clearly, while his facts are so well aiTanged that it is a pleasure to refer to his book for information ; and altogether the work is one which will be found very useful by all interested in the subject to which it relates." Engineer, ' A compact and convenient manual of the law on the subject to which it xftX^Xft^" —Solicitors' yonrttal. STEVENS &' HAYNES, BELL YARD, TEMPLE liAR. 81 In Svo, Fifth Edition, price 28^., cloth. MAYNE'S TREATISE ON THE LAW OF DAMAGES. FIFTH EDITION. KEVISED AND PARTLY RE-WRITTEN. BY JOHN D. M A Y N E. OF THE INNER TEMPLE, BARKISTER-AT-LAW J AND His Honor Judge LUMLEY SMITH, Q.C. " ' Mayne on Damages ' has now become almost a classic, and it is one of the books which we cannot afford to have up to date. We are therefore pleased to have a new Edition, and one so well written as that before us. With the authors we regret the increasing size of the volume, but bulk in such a case is better than incompleteness. Every lawyer in practice should have this book, full as it is of practical learning on all branches of the Common Law. The work is unique, and this Edition, like its predecessors, is indispensable." — Law Journal, April, 1894. " Few books have been better kept up to the current law than this treatise. The earlier part of the book was remodelled in the last edition, and in the present edition the chapter on Penalties and Liquidated Damages has been re-written, no doubt in consequence of, or with regard to, the elaborate and exhaustive judgment of the late Master of the Rolls in WalHs v. StnUA (31 W. R. 214 ; L. R. 2i Ch. D. 243). The treatment of the subject by the authors is admirably clear and concise. Upon the point involved in Wallis v. Smith they say ' The result is that an agreement with various covenants of different importance is not to be governed by any inflexible rule peculiar to itself, but is to be dealt with as coming under the general rule, that the intention of the parties themselves is to be considered. If they have said that in the case of any breach a fixed sum is to be paid, then they will be kept to their agreement, unless it would lead to such an absurdity or injustice that it must be assumed that they did not mean what they said." This is a very fair summary of the judgments in Wallis v. Stnilh, especially of that of Lord Justice Cotton ; and it supplies the nearest approach which can be given at present to a rule for practical guidance. We can heartily commend this as a carefully edited edition of a thoroughly good book." — Solicitors' Journal, *' During the twenty-two years which have elapsed since the publication of this well-known work^ its 7'eputation has been steadily grozving, and it has long since become the recognised aitthonty on the important subject of which it treats."" — Law Magazine and Review. "This edition of what has become a standard work has the advantage of appearing under the supervision of the original author as well as of Mr. Lumley Smith, the editor of the secood edition. The result is most satisfactory. Mr. Lumley Smith's edition was ably and conscientiously pre- pared, and we are glad to find that the reader still enjoys the benefit of his accuracy and learning. At the same time the book has doubtless been improved by the reappearance of its author as co- editor. The earlier part, indeed, has been to a considerable extent entirely rewritten. _ " Mr. Mayne's remarks on damages in actions of tort are brief. We agree with him that in such actions the courts are governed by far looser princi- ples than in contracts ; indeed, sometimes it is impossible to say they are governed by any princi- ples at all. In actions for injuries to the person or reputation, for example, a judge cannot do more than give a general direction to the jury to give what the facts proved in their judgment required. And, according to the better opinion, they may give damages 'for example's sake,* and mulct a rich man more heavily than a poor one. In actions for injuries to property, however, * vindictive ' or 'exemplary' damages cannot, except in very rare cases, be awarded, but must be limited, as in con- tract, to the actual harm sustained, " It is needless to comment upon the arrangement of the subjects in this edition, in which no alteration has been made. I'he editors modestly express a hope that all the English as well as the principal Irish decisions up to the date have been included, and we believe from our own examination that the hope is well founded. We may regret that, warned by the growing bulk of the book, the editors have not included any fresh American cases, but we feel that the omission was unavoidable. We should add that the whole work has been thoroughly revised." Solicitors' youmai. " This text-book is so well known^ not only as the highest authority on the subject treated of but as one of the best text-books ever written^ that it would be idle for us to speak of it in the words of commendation that it deserves. It is a work that no practising lawyer can do without,"— C\:iiA.T»A. Law Journal. 32 STEVENS <&- HAYNES, BELL YARD, TEMPLE BAR. In Clown 8vo, price 4^. dd., cloth, ABSTRACT DRAWING. Containing Instructions on the Drawing of Abstracts of Title, and an Illustrative Appendix. By C. E. ScoTT, Solicitor, " This little book is intended' for the assistance of those who have the framing of abstracts of title cntniste to their care. It contains a number of useful rules, and an illustrative appendix." — Lam Times. " A handy book for all articled clerks." — Law Student^ Journal. '* Solicitors who have articled clerks would save themselves much trouble if they furnished their clerks with a copy of this little book before putting them on to draft an abstract of a heap of title deeds."— Xrtw Notes. " The book ought to be perused by all law students and articled clerks." — Red Tape, Second Edition, in crown 8vo, price 7j., cloth, THE LAW RELATING TO CLUBS. By the late JOHN WERTHEIMER, Barrister-at-Law. Second Edition, by A. W. CHASTER, Barrister-at-Law. "A convenient handbook, drawn up with great judgment and perspicuity." — Morning Post. " Both useful and interesting to those interested in club management." — Laiv Thnes, " Mr. Wertheimer's history of the cases is com- plete and well arranged." — Saturday Review. " This is a very neat little book on an interesting subject. The law is accurately and well expressed." —Laiv youmal. "This is a very handy and complete little work. This excellent little treatise should lie on the table of every club." — Pump Court. In 8vo, price 2j., sewed, TABLE of the FOEEIGN MERCANTILE LAWS and CODES in Force in the Principal States of EUROPE and AMERICA. By Charles Lyon-Caen, Professeur agrege a la Faculte de Droit de Paris ; Professeur a I'Ecole libre des Sciences politiques. Translated by Napoleon Argles, Solicitor, Paris. In 8vo, price \s., sewed, A GUIDE TO THE FRENCH LAWS OF 1889, ON NATION- ALITY and MILITARY SERVICE, as affecting British Subjects. By A. Pavitt, Solicitor, Paris. In one volume, demy 8vo, price xas, dd., cloth, PRINCIPLES OF THE LAW OF STOPPAGE IN TRANSITU, RETENTION, and DELIVERY. By John Houston, of the Middle Temple, Barrister-at-Law. In 8vo, price lOr. , cloth, THE TRIAL OF ADELAIDE BARTLETT FOR MURDER ; Complete and Revised Report. Edited by Edward Beal, B.A., of the Middle Temple, Barrister-at-Law. With a Preface by Edward Clarke, Q.C., M.P. In 8vo, price lor. dd., cloth, lEPORT OF THE CASE A REPORT OF THE CASE OF THE QUEEN ^. GURNEY AND OTHERS, In the Court of Queen's Bench before the Lord Chief Justice Cockburn. With Intro- duction, containing History of the Case, and Examination of the Cases at Law and Equity applicable to it. By W. F. Finlason, Barrister-at-Law. In royal 8vo, price loj. 6(/., cloth, THE PRACTICE OF EQUITY BY WAY OF REVIVOR AND SUPPLEMENT. With Forms of Orders and Appendix of Bills. By LOFTUS Leigh Pemberton, of the Chancery Registrar's Office, STEVENS &- HAYNES, BELL YARD, TEMPLE BAR, 33 In 8vo, price ts. 6cl., cloth, THE ANNUAL DIGEST OF MERCANTILE CASES FOR THE YEAR 1886. Being a Digest of the Decisions of the English, Scotch and Irish Courts ON Matters Relating to Commerce. By JAMES A. DUNCAN, M.A., LL.B., Trin. Coll., Camb., AND OF THE INNER TEMPI E, BARRISTER- AT-LAW. " We hope the present issue may be the first of a series which will naturally increase in value with the progress of time." — Saturday Revieiv. "There can only be one opinion, and that a very decided one indeed, in favour of the value of this book to men of business and to members of the legal profession." — Liverpool Mercury. " A work of such handy reference, well indexed, and containing the essence of a year's decisions, will be found a valuable addition to office libraries." — Liverpool Daily Post. *** The Annual Digest of Mercantile Cases, for 18S5, can also be had^ price 6^., clotK THE LAW AND PKAOTIOE OF ELECTION PETITIONS, With an Appendix containing the Parliamentary Elections Acts, the Corrupt and Illegal Practices Prevention Acts, the General Rules of Procedure made by the Election Judges in England, Scotland, and Ireland, Forms of Petitions, &c. Third Edition. By Henry Hardcastle, of the Inner Temple, Barrister-at-Law. ."Mr- Hardcaslle gives us an original treatise I guide. We can thoroughly recommend Mr. with foot-notes, and he has evidently taken very Hardcastle's book as a concise manual on the law considerable pains to make his work a reliable \ and practice of election petitions."— Zaw TiV/jM. Vols. I., II., III., and IV., price 4/. 17^, REPORTS OF THE DECISIONS OF THE JUDGES FOR THE TRIAL OF ELECTION PETITIONS IN ENGLAND AND IRELAND. PURSUANT TO THE PARLIAMENTARY ELECTIONS ACT, 1868. By EDWARD LOUGHLIN O'MALLEY AND HENRY HARDCASTLE. *,* Vol. IV. Parts III., IV. and V. Edited by}. S. Sandars, Banister-at-Law. In 8vo, price I2j., cloth, THE LAW OF FIXTURES, IN THE PRINCIPAL RELATION OF LANDLORD AND TENANT, AND IN ALL OTHER OR GENERAL RELATIONS. FOURTH EDITION. By ARCHIBALD BROWN, M.A. Edin. and Oxon., and B.C.L. Oxon. OF THE MIDDLE TEMPLE, BARRISTER-AT-LAW. "A new chapter has been added with reference [ achieved." — Law Times. to the Law of Ecclesiastical Fixtures and Dilapida- " The treatise is commendable as well for oiigi- tions. The book is worthy of the success it has | nality as for laboriousness."— Z^tt' Journal, 34 STEVENS &- HAYNES, BELL YARD, TEMPLE BAR. ,Stcbtn« anb gijaBttcs' jSfriea of Jjrprjnta of tlu €arig gliporUra. SIR BARTHOLOMEW SHOWER'S PARLIAMENTARY CASES. In 8vo, 1876, price 4/. 4J-., best calf binding, SHOWER'S CASES IN PARLIAMENT RESOLVED AND ADJUDGED UPON PETITIONS 6= WRITS OF ERROR. FOURTH EDITION. CONTAINING ADDITIONAL CASES NOT HITHERTO REPORTED. REVISED AND EDITED BY RICHARD LOVELAND LOVELAND, OF THE INNER TEMPLE, BARRISTER-AT-LAW ; EDITOR OF *' KELYNc'S CROWN CASES," AND "hall's essay on the rights of THE CROWN IN THE SEASHORE." " Messrs. Stevens & Haynes, the successful publishers of the Reprints of Bellewe, Cooke, Cunningham, Brookes's New Cases, Choyce Cases in Chancery, William Kelynge and Kelyng's Crown Cases, determined to issue a new or fourth Edition of Shower's Cases in Parliament. " The volume, although beautifully printed on old-fashioned Paper, in old-fashioned type, instead of being in the quarto, is in the more convenient octavo form, and contains several additional cases not to be found in any of the previous editions of the work. " These are all cases of importance, worthy of being ushered into the light of the world by enterprising publishers. " Shower's Cases are models for reporters, even in our day. The statements of the case, the argumentsofcounsel,andthe opinions of the Judges, are all clearly and ably given. " This new edition with an old face of these valuable reports, under the able editorship of R. L. Loveland, Esq., should, in the language of the advertisement, 'be welcomed by the profession, as well as enable the custodians of public libraries to complete or add to their series of English Law Reports.' " — Canada Law yournal. BELLEWE'S CASES, T. RICHARD II. In 8vo, 1869, price 3/. 3J., bound in calf antique, LES ANS DU ROY RICHARD LE SECOND. Collect' ensembl' hors les abridgments de Statham, Fitzherbert et Brooke. Per Richard Bellewe, de Lincolns Inne. 1585. Reprinted from the Original Edition. " No public library in the world, where English law finds a place, should be without a copy of this edition of Bellewe." — Canada Law Journal. "We have here ?i/ac-simiie edition of Eellewe, and it is really the most beautiful and admirable reprint that has appeared at any time. It is a perfect gem of antique printing, and forms a most interesting monument of our early legal history. It belongs to the same class of works as the Year Book of Edward I. and other similar works which have been printed in our own time under the auspices of the Master of the Rolls ; but is far superior to any of them, and is in this respect highly creditable to the -spirit and enterprise of private publishers. The work is an important link in our le^l history ; there are no year books of the reign of Richard II., and Bellewe supplied the only substitute by carefully extracting and collecting all the cases he could find, and he did it in the most convenient form — that of alphabetical arrangement in the order of subjects, so that the work is a digest as Well as a book of law reports. It is in fact a collection of cases of the reign of Richard II.. arranged according to their subjects in alphabetical order. It is therefore one of the most intelli^ble and interesting legal memorials of the Middle Ages." — Law Times, CUNNINGHAM'S REPORTS. In 8vo, 1 87 1, price 3/. 3j., calf antique, Cunningham's (T.) Reports in K. B., 7 to 10 Geo. II.; to which is prefixed a Proposal for rendering the Laws of England clear and certain, hmnbly offered to the Consideration of both Houses of Parliament. Third edition, with numerous Corrections. By Thomas Townsend Bucknill, Barrister-al-Law. peace and prosperity of every nation than good laws and the due execution of them.' The history " The instructive chapter which precedes the cases, entitled ' A proposal for rendering the Laws of England clear and certain,' gives the volume a degree of peculiar interest, independent of the value of many of the reported cases. That chapter begins with words which ought, for the information of every people, to be printed in letters of gold. They arc as follows: 'Nothing conduces more to the of the civil law is then rapidly traced. Next a history is given of English Reporters, beginning with the reporters of the Year Books from i Edw. III. to 12 Hen. VIII. — being near 200 years — and afterwards to the time of the author. - Canada Law jfountal^ STEVENS iV HAYNES, BELL YARD, TEMPLE BAR. 3r. ^ttbtns anb Sjaaius' ^tties rrf ileptinta of tlic earls S^cportcra. CHOYCE CASES IN CHANCERY. In 8vo, 1870, price 2/. 2s., calf antique, THE PMOTIOE OF THE HIGH OOUET OF GHANOEEY. With the Nature ot the several Offices belonging to that Court. And the Reports of many Cases wherein Relief hath been there had, and where denyed. "This volume, in paper, type, and binding (like ' Bellewe's Cases ') is a fac-simile of the antique edition. .\11 who buy the one should buy the other." — Canada Law Journal, In 8vo, 1872, price 3/. 3J., cilf antique, SIR G. COOKE'S COMMON PLEAS REPORTS IN THE REIGNS OF QUEEN ANNE, AND KINGS GEORGE I. and II. The Third Edition, with Additional Cases and References contained in the Notes taken from L. C. J. Eyre's MSS. by Mr. Justice Nares, edited by Thomas ToWNSEND BuCKNiLL, of the Inner Temple, Barrister-at-Law. " Law books never can die or remain long dead so long as Stevens and HajTies are willing to con- tinue them or revive them when dead. It is cer- tainly surprising to see with what facial accuracy an old volume of Reports may be produced by these modern publishers, whose good taste is only equalled by their enterprise." — Canada Law Journal. BROOKE'S NEW CASES WITH MARCH'S TRANSLATION. In 8vo, 1873, plaice 4/. 4^., calf antique, Brooke's (Sir Robert) New Cases in the time of Henry VIII., Edward VI., and Queen Mary, collected out of Brooke's Abridgement, and arranged under years, with a table, together with March's (John) Translation ^Brooke's New Cases in the time of Henry VIII., Edward VI., and Queen Mary, collected out of Brooke's Abridgement, and reduced alphabetically under their proper heads and titles, with a table of the principal matters. In one handsome volume. 8vo. 1873, "Both the original and the translation having long been very scarce, and the mispaging and other errors in March's translation making a new and corrected edition peculiarly desirable, Messrs. Stevens and Haynes have reprinted the two books in one volume, uniform with the preceding volumes of the series of Early Reports." — Canada Law youmal. KELYNGE'S (W.) REPORTS. In 8vo, 1873, price 4/. 4J., calf antique, Kelynge's (William) Reports of Cases in Chancery, the King's Bench, &c., from the 3rd to the 9th year of his late Majesty King George II., during which time Lord King was Chancellor, and the Lords Raymond and Hardwicke were Chief Justices of England. To which are added, seventy New Cases not in the First Edition. Third Edition. In one handsome volume. 8vo. 1873. KELYNG'S (SIR JOHN) CROWN CASES. In 8vo, 1873, price 4/. 4J., calf antique, Kelyng's (Sir J.) Reports of Divers Cases in Pleas of the Crown in the Reign of King Charles II., with Directions to Justices of the Peace, and others; to which are added, Three Modern Cases, viz._, Armstrong and Lisle, the King and Plummer, the Queen and Mawgridge. Third Edition, containing several additional Cases never before printed, together with a Treatise upon the Law and Proceed- ings IN Cases of High Treason, first published in 1793. The whole carefully revised and edited by Richard Loveland Loveland, of the Inner Temple, Barrister-at-Law. "We look upon this volume as one of the most important and valuable of the unique reprints of Messrs. Stevens and Haynes. Little do we know of the mines of legal wealth that He buried in the old law books. But a careful exaniination, either of the reports or of the treatise embodied in the volume now before us, will give the reader some idea of the goodservicerendered by Messrs. Stevens andHaynes to the profession. . . . Should occasion arise, the Crown prosecutor, as well as counsel for the prisoner, will find in this volume a complete vade mecum of the law of high treason and proceedings in relation thereto. "^-Cawd^tf Law Journal. 38 STEVENS &• HAYNES, BELL YARD, TEMPLE BAR, Second Edition, in 8vo, price ids., cloth, A CONCISE TREATISE ON PRIVATE INTERNATIONAL JURISPRUDENCE. BASED ON THE DECISIONS IN THE ENGLISH COURTS, By JOHN ALDERSON FOOTE, OF Lincoln's inn, barrister-at-law ; chancellor's legal medallist and senior whewell scholar OF international law, CAMBRIDGE UNIVERSITY, 1873 ; SENIOR STUDENT IN JURISPRUDENCE AND ROMAN LAW, INNS OF COURT EXAMINATION, HILARY TERM, 1874. This work seems to us likely to prove of considerable use to all English lawyers who have to deal with questions of private international law. Since the publication of Mr. Westlake's valuable treatise, twenty years ago, the judicial decisions of English courts bearing upon different parts of this subject have greatly increased in number, and it is full time that these decisions should be examined, and that the conclusions to be deduced from them should be systematically set forth in a treatise. Moreover, Mr. Foote has done this well." — Solicitors^ youmal. " Mr. Foote has done his work very well, and the book will be useful to all who have to deal with the class of cases in which English law alone is not sufficient to settle the o^tsixon"— Saturday Review^ March 8, 1879. " The author's object has been to reduce into order the mass of materials already accumulated in the shape of explanation and actual decision on the interesting matter of which he treats ; and to construct a framework of private international law, not from the dicta of jurists so much as from judicial d<:cisions in English Courts which have superseded them. And it is here, in compiling and arranging in a concise form this valuable material, that Mr. Foote's wide range of knowledge and legal acumen bear such good fruit. As a guide and assistant to the student of international law, the whole treatise will be invaluable ; while a table of cases and a general index will enable him to find what he wants without trouble." — Standard. " The recent decisions on points of international law (and there have been a large number since Westlake's publication) have been well stated. So far as we have observed, no case of any importance has been omitted, and the leading cases have been fully analysed. The author does not hesitate to criticise the grounds of a decision when these appear to him to conflict with the proper rule of law. Most of his criticisms seem to us very just. On the whole, we can recommend Mr. Foote's treatiw as a useful addition to our text-books, and we expect it will rapidly find its way into the hands of practising lawyers." — The yournal 0/ yiaispritdence and Scottish Law Magazine. "Mr. Foote has evidently borne closely in mind the needs of Students of Jurisprudence as well as those of the Practitioners. For both, the fact that his work is almost entirely one of Case-law will commend it as pne useful alike in Chambers and in Court." — Law Magazine and Rez-iciv. *' Mr. Foote's book will be useful to the student One of the best points of Mr. Foote's book is the * Continuous Summary,' which occupies about thirty pages, and is divided into four parts — Persons, Property, Acts, and Procedure. Mr. Foote remarks that these summaries are not in any way intended as an attempt at codification. However that may be, they are a digest which reflects high credit on the author's assiduity and capacity. They are ' meant merely to guide the student ; ' but they will do much more than guide him. They will enable him to get such a grasp of the subject as will render the reading of the text easy and fruitful." — Law journal. " This book is well adapted to be used both as a text-book for students and a book of reference for practising barristers," — Bar Exatnination Jouffuxl, " This is a book which supplies the >vant which has long been felt for a really good modem treatise on Private International Law adapted to the every-day requirements of the English Practitioner. The whole volume, although designed for the use of the practitioner, is so moderate in size — an octavo of 500 ppges only— and the arrangement and development of the subject so well conceived and executed, that it will amply repay perusal by those whose immediate object may be not the actual decisions of a knotty point but the satisfactory disposal of an examination paper." —Ojc/ord and Cambridge Undergraduates* youtttnl. "Since the publication, some twenty years ago, of Mr. Westlake's Treatise, Mr. Foote's book is, in our opinion, the best work on private international law which has appeared in the English language, . . The work is executed with much ability, and will doubtless be found of great value by all persons who have to consider questions on private international \9.yf"—Athenaum. STEVENS &> HAYNES, BELL YARD, TEMPLE BAK. 37 THE Eato JHagajine anb 3^ebieto, AND QUARTERLY DIGEST OF ALL REPORTED CASES. Price FIVE SHIIiItlNGS each Number. No. CCXVIII. (Vol. I, No. I. of the New Quarterly Series.) November, 1875. No. CCXIX. (Vol. I, 4th Series No. II.) February, 1876. N.B. — These two Numbers are out of print. No. CCXX. (Vol. I, 4th Series No. III.) For May, 1876, No. CCXXI. (Vol. I, 4th Series No. IV.) For August, 1876. Nos. CCXXII. to CCXLV. (Vol. 2, 4th Series, to Vol. 7, 4th Series, Nos. V. to XXVIII.), November, 1876, to August, 1882. Nos. CCXLVI. to CCXLIX. (Vol. 8, 4th Series Nos. XXIX. to XXXII.), November, 1882, to August, 1883. Nos. CCL. to CCLIII. (Vol. 9, 4th Series, Nos. XXXIII. to XXXVI.). November, 1883, to August, 1884. Nos. CCLIV. to CCLVII. (Vol. 9, 4th Series, Nos. XXXVII. to XL.), November, 1884, to August, 1885. Nos. CCLVIII. to CCLXI. (Vol. X., 4th Series, Nos. XLI. to XLIV.), November, 1885, to August, 1886. Nos. CCLXII. to CCLXV. (Vol. XI., 4th Series, Nos. XLV. to XLVIII.), November, 1886, to August, 1887. Nos. CCLXVI., to CCLXIX. (Vol. XII., 4th Series, Nos. XLIX. to LII.), November, 1887, to August, 1888. Nos. CCLXX. to CCLXXIII. (Vol. XIII., 4th Series, Nos. LIII. to LVI.), November, 1888, to August, 1889. No. CCLXXIV. to CCLXXVII. (Vol. XIV., 4th Series, Nos. LVII. to LX.), November, 1889, to August, 1890. No. CCLXXVIII. to CCLXXXI. (Vol. XV., 4th Series, Nos. LXI. to LXIV.), November, 1890, to August, 1891. No. CCLXXXII to CCLXXXV. (Vol. XVI., 4th Series, Nos. LXV to LXVIII.), November, 189 1, to August, 1892. No. CCLXXXVI. to CCLXXXIX. (Vol. XVII., 4th Series, Nos. LXIX. to LXXII.), November, 1892, to August, 1893. An Annual Subscription of 20s., paid in advance to tbe Publishers, will secure, the receipt of the LAW MAGAZINE, free by post, within the United Kingdom, or for 24s. to the Colonies and Abroad. 38 STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. Fifth Edition, revised and enlarged, 8vo., price yis. net. A TREATISE ON HINDU LAW AND USAGE. By John D. Mayne, of the Inner Temple, Barrister-at-Law, Author of "A Treatise on Damages," &c, "A new work from the pen of so established an authority as Mr. Mayne cannot fail to be welcome to the legal profession. In his present volume the late OfiSciating Advocate- General at Madras has drawn upon the stores of his long experience in Southern India, and has produced a work of value alike to the practitioner at the Indian Bar, or at home, in appeal cases, and to the scientific jurist. " To all who, whether as practitioners or administrators, or as students of the science of jurisprudence, desire a thoughtful and suggestive work of reference on Hindu Law and Usage, we heartily recommend the careful perusal of Mr. Mayne's valuable treatise." — Law Magazine and Review. In 8vo, 1877, price 15^., cloth, A DIGEST OF HINDU LAW, AS ADMINISTERED IN THE COURTS of the MADRAS PRESIDENCY. ARRANGED AND ANNOTATED By H. S. CUNNINGHAM, M.A., Advocate-General, Madras. DUT CH LAW . In I Vol., 8vo. , price 40J., cloth. THE OPINIONS OF GROTIUS, As contained in the Hollandsche Consultatien en Advijsen. Collated, translated, and annotated by D. P. de Bruyn, B.A., LL.B., Ebden Essayist of the University of the Cape of Good Hope ; Advocate of the Supreme Court of the Colony of the Cape of Good Hope, and of the High Court of the South African Republic. With Facsimile Portrait of Mr. Hugo de Groot. In 2 Vols., Royal 8vo, price 90J., cloth, VAN LEEUWEN'S COMMENTARIES ON THE ROMAN-DUTCH LAW. Revised and Edited with Notes in Two Volumes by C. W. Decker, Advocate. Translated from the original Dutch by J. G. KoTZ£, LL.B., of the Inner Temple, Barrister-at-Law, and Chief Justice of the Transvaal. With Fac- simile Portrait of Decker from the Edition of 1780. *»* Vol. II. can be had separately, price 50?. In 8vo, price 42J. , cloth. THE JUDICIAL PRACTICE OF THE COLONY OF THE CAPE OP GOOD HOPE AND OF SOUTH AFEICA GENERALLY. With suitable and copious Practical Forms, subjoined to, and illustrating the Practice of the several Subjects Treated of. By C. H. \'an Zvl, Attorney-at-Law, Notary Public, and Conveyancer, etc., etc. In 8vo, 1878, cloth, PRECEDENTS IN PLEADING: being Forms filed of Record in the Supreme Court of the Colony of the Cape of Good Hope. Collected and Arranged by James Buchanan. In Crown 8vo, price y.s. bd., boards, THE INTRODUCTION TO DUTCH JURISPRUDENCE OF HUGO GROTIUS, with Notes by Simon van Groenwegen van der Made, and References to Van der Keesel's Theses and Schorer's Notes. Translated by A. F. S. Maasdorp, B.A., of the Inner Temple, Barrister-at-Law. In l2mo, price 15^. net, boards, SELECT THESES ON THE LAWS OF HOLLAND & ZEELAND Bemg a Commentary of Hugo Grotius' Introduction to Dutch Jurisprudence, and mtended to supply certam defects therein, and to determine some of the more celebrated Controversies on th^ Law of Holland. By DioxYSius Godefridus VAN DER Kessei,, Advocate, and Professor of the Civil and Modern Laws in the Universities of Leyden. Translated from the original Latin by C. A Lorenz of Lincoln's Inn, Barrister-at-Law. Second Edition, With ji Biographical Notice of the Author by Professor J. De Wal, of Leyden. STKVENS Q^ HAYNES, BELL YARD, TEMPLE BAR. 39 THE Bar €icamination 9lnnual FOR 1894. (In Continuation of the Bar Examination Journal.) Price 3j. EXAMINATION PAPERS, 1893. FOR Pass, Honors, and Barstow Scholarship. RESULT OF EXAMINATIONS. NAMES OF SUCCESSFUL CANDIDATES. EXAMINATION REGULATIONS FOR 1894. A GUIDE TO THE BAR. LEADING DECISIONS AND STATUTES OF 1894. NEW BOOKS AND NEW EDITIONS. W. D. EDWARDS, LL.B., OF Lincoln's inn, darrister-at-law. Now published, in 8vo, price \%s. each, cloth, THE BAR EXAMINATION JOURNAL, VOLS. IV, v., yj_ YIL VIII., IX. & X. Containing the Examination Questions and Answers from Easter Term, 1878, to Hilary Term, 1892, with List of Successful Candidates at each examination, Notes on the Law of Property, and a Synopsis of Recent Legis- lation of importance to Students, and other information. By a. D. TYSSEN and W. D. EDWARDS, Barristers-at-Law. Fifth Edition. In 8vo, price ^a. cloth. A SUMMARY OF JOINT STOCK COMPANIES' LAW. By T. EUSTACE SMITH, OF THE INNER TEMPLE, BARRISTER-AT-LAW. " The author of this hand-book tells us that, when an articled student reading for the final examina- tion, he felt the want of such a work as that before us, wherein could be found the main principles of law relating to joint-stock companies . . . Law students may well read it ; for Mr. Smith has very wisely been at the pains of giving his authority for all his statements of the law or of practice, as applied to joint-stock company business usually transacted in solicitors' chambers. In fact, Mr. Smith has by his little book ofifered a fresh inducement to students to make themselves— at all events, to some extent— acquainted with company law as a separate branch of study."— /-aw Times. "These pages give, in the words of the Preface, * as briefly and concisely as possible, a general view both of the principles and practice of the law affecting companies.' The _ work is excellently printed, and authorities are cited ; but in no case IS the very language of the statutes copied. The plan is good, and shows both grasp and neatness, and, both amongst students and laymen, Mr. Smith's book ought to meet a ready sale." — Laiv jfoumai. " The book is one from which we have derived a large amount of v^.luable information, and we can heartily and conscientiously recommend it to our readers." — Oxford and Cambridge Undergrad- uates' JoufiiaL 40 STEVENS &^ HAYNES, BELL YARD, TEMPLE BAR. In 8vo, Sixth Edition, price 9^., cloth, THE MARRIED WOMEN'S PROPERTY ACTS ; ,* . 1870, 1874, 1882 and 1884, With Copious and Explanatory Notes, and an Appendix of the Acts Relating to Married Women. By Abchibald Brown, M.A., Edinburgh and Oxon., and the Middle Temple, Barrister-at-Law. Being the Sixth Edition of The Married Women's Property Acts. By the late J. R. Griffiths, ^.A. Oxon., of Lincoln's Inn, Barrister- at-Law. " Upon the whole, we are of opinion that this is the best work upon the subject which has been issued since the passing of the recent Act. Its position as a well-established manual of acknowledged worth gives it at starting a considerable advantage over new books ; and this advantage lias been well maintained by the intelligent treatment of the Editor." — Solicitors' Journal. " The notes are full, but anything rather than tedious reading, and the law contained in them is good, and verified by reported cases. ... A distinct feature of the work is its copious index, practically a summ.iry of the marginal headings of the various paragraphs in the body of the text. This book is worthy of all success." — Laiv Magazine. In 8vo, price 12s., cloth, THE LAW OF NEGLIGENCE. . SECOND EDITION, By HoBERT Campbell, of Lincoln's Inn, Barrister-at-Law, and Advocate of the Scotch Bar. " No less an authority than the late Mr. Justice Willes, in- his judgment In Oppenheitn v. White Lion Hotel Co.^ characterised Mr. Campbell's * Law of Negligence ' as a ' very good book ; ' and since very good books are by no means plentiful, when compared with the numbers of indifferent ones which annually issue from the press, we think the profession will be thankful to the author of this new edition brought down to date. It is indeed an able and scholarly treatise on a somewhat difficult branch of law, in the treatment of which the author's knowledge of Roman and Scotch Juris- prudence has stood him in good stead. We con- fidently recommend it alike to the student and the practitioner." — Law Magazine. In royal 8vo, AN INDEX TO TEN THOUSAND PRECEDENTS IN CONVEYANCING and to common and commercial FORMS. Arranged in Alphabetical order with Subdivisions of an Analytical Nature ; together with an Appendix containing an Abstract of the Stamp Act, 1870, with a Schedule of Duties ; the Regulations relative to, and the Stamp Duties pay- able on, Probates of Wills, Letters of Administration, Legacies, and Successions. By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law. BIBLIOTHECA LEGUM. In izmo (nearly 400 pages), price 2s., cloth, A CATALOGUE OF LAW BOOKS. I-luding aU the Reports in the various Courts of England, Scotland, and Ireland ; with a Supplement to December, 1884. By Henry G. Stevens and Robert W. Haynes, Law Pubhshers. In small 4to, price 2j., cloth, beautifully printed, with a large margin, for the special use of Librarians, CATALOGUE OF THE REPORTS IN THL VARIOUS COURTS OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND, arranged both in alpha- BETICAL (S^ CHRONOLOGICAL ORDER. By Stevens & Haynes, Law Publishers. STEVEXS &' HAYNES, BELL YARD, TEMPLE BAR. 41 Second Edition, much enlarged, in 8vo., price 20s., cloth. CHAPTERS ON THE LAW RELATING TO THE COCONIES. To which are appended Topical Indexes of Cases decided in the Privy Council on Appeal from the Colonies, Channel Islands and the Isle of Man, and ot Cases relating to the Colonies decided in the English Courts otherwise than on Appeal from the Colonies. By CHARLES JAMES TARRING, M.A., ASSISTANT JUDGE OF H.B.M. SUPREME CONSULAR COURT, CONSTANTINOPLE, AND H.M 's CONSUL; AUTHOR OF "BRITISH CONSULAR JURISDICTION IN THE EAST," "a TURKISH GRAMMAR," ETC. CONTENTS. Table of Cases Cited. Table of Statutes Cited. Introductory.— -DefinUion of a Colony. Chapter I. — The laws to which the Colonies are subject. Section i.- In newly-discovered countries. Section 2. — In conquered or ceded countries. Section 3. — Generally. , Chapter II. — The Executive. Section i. — The Governor. A. — Nature ofr^is office, power, and _ duties. B. — Liability to Snswer for his acts. I.- Civilly. I. a. — In the courts of his Govern- ment. b. — In the English courts. 2.— For what causes of action. II. — Criminally. Section 2. — The Executive Council. Chapter III. — ^The Legislative Power. Section i. — Classification of colonies. Section z. — Colonies with responsible govern- ment. Section 3. — Privileges and powers of colonial Legislative Assemblies. Chapter IV. — The Judiciary and.ihe Bar. Chapter V. — Appeals from the Colonies. Chapter VI. — Imperial Statutes relating to the Colonies. Section i. — Imperial Statutes relating to the Colonies in genei:al. Section 2. — Subjects of Imperial Legislation relating to the Colonies in general. Section 3. — Imperial Statutes relating to par- ticular Colonies. Topical Index of Cases decided in the Privy Council on appeal from the Clolonies, the Channel Islands, and the Isle of^an. Index of some Topics of English Law dealt with in the Cases. Topical Index of Cases relating to the Colonies decided in the English Courts otherwise than on appeal from the Colonies. Index of Names of Cases. Appendix I. — II. General Index. In 8vo, price loj., cloth, THE TAXATION OF COSTS IN THE CROWN OFFICE. » comprising a collection of BILLS OF COSTS IN THE VARIOUS MATTERS TAXABLE IN THAT OFFICE; including COSTS UPON THE PROSECUTION OF FRAUDULENT BANKRUPTS, AND ON APPEALS FROM INFERIOR COURTS ; TOGETHER WITH A TABLE OF COURT FEES, and a scale of costs usually allowed to solicitors, on the taxation of costs on the crown side of the queen's bench division of the high court of justice. By FREDK. H. short, CHIEF CLERK IN THE CROWN OFFICE. " This is decidedly a useful work on the subject of those costs which are liable to be taxed before the Queen's Coroner and Attorney (for which latter name that of ' Solicitor' might now well be substituted), or before the master of the Crown Office ; in fact, such a book is almost indispensable when preparing costs for taxation in the Crown Office, or when taxing an opponent's costs. Country solicitors will find the scale relating to bankruptcy prosecutions of especial use, as such costs are taxed in the Crown Office. The ' general observa:tions ' constitute a useful feature in this manual."— iaw Times. "The recent revision of the old scale of costs in the Crown Office renders the appearance of this work particularly opportune, and it cannot fail to be welcomed by practitioners. _ Mr. Short gives, in the first place, a scale of costs usually allowed to solicitors on the taxation of costs in the Crown Office, and then bills of costs in various matters. These are well arranged and clearly ^rvai^d,"— Solicitors' Jourtial. 42 STEVENS Sy IIAYNES, BELL YARD, TEMPLE BAR. Just Published, in 8vo, price Ts. 6d., cloth, BRITISH CONSULAR JURISDICTION IN THE EAST, WITH TOPICAL INDICES OF CASES ON APPEAL FROM, AND RELATING TO, CONSULAR COURTS AND CONSULS; Also a Collection of Statutes concerning Consuls. By C. J. TARRING, M.A., ASSISTANT-JL'DCE OF H.B.M. SUPREME CONSULAR COURT FOR THE LEVANT, In one volume, 8vo, price is. 6d., cloth, A COMPLETE TREATISE UPON THE NEW LAW OF PATENTS, DESIGNS, & TRADE MARKS, CONSISTING OF THE PATENTS, DESIGNS, AND TRADE MARKS ACT, 1883, WITH THE RULES AND FORMS, FULLY ANNOTATED WITH CASES, &c. And a Statement of the Principles of the Law upon those subjects, with a Time Table and Copious Index. By EDWARD MORTON DANIEL, OF LINCOLN S INN, BARRISTER-AT-LAW, ASSOCIATE OF THE INSTITUTE OF PATENT AGENTS. In 8vo, price 8j., cloth, The TRADE MARKS REGISTRATION ACT, 1875, And the Rules thereunder ; THE MERCHANDISE MARKS ACT, 1862, with an Introduction containing a SUMMARY OF THE LAW OF TRADE MARKS, together with practical Notes and Instructions, and a copious Index. By Edward Morton Daniel, of Lincoln's Inn, Barrister-at-Law. Second Edition, in one volume, 8vo, price 16s., cloth, A CONCISE TREATISE ON THE STATUTE LAW OF THE LIMITATIONS OF ACTIONS. With an Appendix of Statutes, Copious References to English, Irish, and American Cases, and to the French Code, and a Copious Index. By henry THOMAS BANNING, M.A., OF THE INNER TEMPLE, BARRISTER-AT-LAW. '*l'he work is decidedly valuable." — Law Times. " Mr. Banning has adhered to the plan of printing the Acts in an appendix, and making his book a running treatise on the case-law thereon. The cases have evidently been investigated with care and digested with clearness and intellectuality." — Law yournal. In 8vo, price U., sewed, AN ESSAY ON THE ABOLITION OF CAPITAL PUNISHMENT. Embiacing inon particularly ail Enunciation and Analysis of the Prituiphs of Law as applicable to Criminals of the Highest Degree of Guilt, By WALTER ARTHUR COPINGER, OF THE MIDDLE TEMI'I.K, ESQ., BARRISTER-AT-LAW. Sixth Edition, in 8vo, price 31J. 6(/., cloth, THE INDIAN CONTRACT ACT, No. IX., of 1872. TOGETHER ^VIIH AN INTRODUCTION AND EXPLANATORY NOTES, TABLE OF CONTENTS, APPENDIX, AND INDEX. By H. S. CUNNINGHAM and H. H. SHEPHERD BARRISTERS- AT-LAW. STEVENS 6- HAYNES, BELL YARD, TEMPLE BAR. 43 Second Edition, in Svo, price IJ^., cloth, LEADING CASES and OPINIONS on INTERNATIONAL LAW COLLECTED AND DIGESTED FROM ENGLISH AND FOREIGN REPORTS, OFFICIAL DOCUMENTS, PARLIAMENTARY PAPERS, and other Sources. With NOTES and EXCURSUS, Containing the Views of the Text Writers on the Topics referred to, together with Supplementary Cases, Treaties, and Statutes ; and Embodying an Account of some of the more important International Trans- actions and Controversies. By PITT COBBETT, M.A., D.C.L., OF gray's inn, BARRISTER-AT-LAW, professor of law, university of SYDNEY, N.S.W. "The book is well arranged, the materials well selected, and the comments to the point. Much will be found in small space in this book." — Law JourtiaU "The notes are concisely written and trust- worthy The reader will learn from them a great deal on the subject, and the book as a whole seems a convenient introduction to fuller and more systematic works." — Oxford Magazine, Second Edition, in royal Svo. iioo pages, price 45^., cloth, STORY'S COMMENTARIES ON EQUITY JURISPRUDENCE. Second English Editioii, from the Twelfth American Edition. By W. E. GRIGSBY, LL.D. (Lond.), D.C.L. (Oxon.), AND OF THE INNER TEMPLE, BARRISTER-AT-LAW. " It is high testimony to the reputation of Story, I has been rendered more perfect by additional andto the editorship of Dr. Grigsby, that another indices." — Law Times. edition should have been called for. . . . The work I Second Edition, in Svo, price 8j., cloth, THE PARTITION ACTS, 1868 & 1876 A Manual of the Law of Partition and of Sale, in Lieu of Partition. With the Decided Cases, and an Appendix containing Judgments and Orders. By W. Gregory Walker, B.A., of Lincoln's Inn, Barrister-at-Law. has carefully brought together the cases, and dis- cussed the difficulties arising upon the language of the different provisions." — Solicitors' Journal, "ITiis is a very good manual — practical, clearly written, and complete. The subject lends itself well to the mode of treatment adopted by Mr. Walker, and in his notes to the various sections he Second Edition, in Svo, price 2.2s. cloth, A TREATISE ON THE LAW AND PRACTICE RELATING TO INFANTS. By ARCHIBALD H. SIMPSON, M.A., OF Lincoln's inn, barrister- at-law, and fellow of Christ's college, Cambridge. SECOND EDITION. By E. J. Elgood, B.C.L., M.A., of Lincoln's Inn, Barrister-at-Law. "Mr. Simpson's book comprises the whole of the law relating to infants, both as regards their per- sons and their property, and we have not observed any very important omissions. The author has evidently expended much trouble and care upon his work, and has brought together, in a concise and convenient form, the law upon the subject down to the present time." — Solicitors' yournal. "Its law is unimpeachable. We have detected no errors, and whilst the work might have been done more scientifically, it is, beyond all question, a compendium of sound legal principles." — Law Times. * ' Mr. Simpson has arranged the whole of the Law relating to Infants with much fulness of detail, and yet in comparatively little space. The result is due mainly to the businesslike condensation of his style. Fulness, however, has by no means been sacrificed to brevity, and, so far as we have been able to test it, the work omits no point of any im- portance, from the earliest cases to the last. In the essential qualities of clearness, completeness, and orderly arrangement it leaves nothing to be desired. " Lawyers in doubt on any point of law or prac- tice will find the information they require, if it can be found at all, in Mr. Simpson's book, and a writer of whom this can be said may congratulate himself on having achieved a considerable success.'' — Law Magazine, February, 1876. In one volume, royal 8vo, 1877, price 30s., cloth, THE DOCTRINES & PRINCIPLES OF THE LAW OF INJUNCTIONS. By WILLIAM JOYCE, OF Lincoln's inn, barrister-at-law. "Mr. Joyce, whose learned and exhaustive work on 'The Law and Practice of Injunctions* has gained such a deservedly high reputation in the Profession, now brings out a valuable companion volume on the ' Doctrines and Principles ' of this important branch of the Law. In the present work the Law is enunciated in its abstract rather than its concrete form, as few cases as possible being cited ; while at the same time no statement of a principle is made unsupported by a decision, and for the most part the very language of the Courts has been adhered to. Written as it is by so acknowledged a master of his subject, and with the conscientious carefulness that might be expected from him, this work cannot fail to prove of the greatest assistance alike to the Student — who wants to grasp principles freed from their superincum- bent details— and to the practitioner, who wants to refresh his memory on points of doctrine amidst the oppressive details of professional work." — Laiv Jlfagazine and Reznezu. BY THE SAME AUTHOR. In two volumes, rcyal 8vo, 1872, price yoj'., cloth, THE LAW & PRACTICE OF INJDHCTMS. EMBRACING ALL THE SUBJECTS IN WHICH COURTS OF EQUITY AND COMMON LAW HAVE JURISDICTION. By WILLIAM JOYCE, OF Lincoln's inn, barrister-at-law. KE VIEWS. "A work which aims at being so absolutely complete, as that of Mr. Joyce upon a subject which is of almost perpetual recurrence in the Courts, cannot fail to be a welcome offering to the profession, and doubtless, it will be well received and largely used, for it is as absolutely complete as it aims at being This work is, therefore, eminently a work for the practitioner, being full of practical utility in every page, and every sentence, of it We have to congratulate the pro- fession on this new acquisition to a digest of the law, and the author on his production of a work of permanent utility and fame." — Layj Magazine and Review. " Mr. Joyce has produced, not a treatise, but a complete and compendious exposition of the Law and Practice of Injunctions both in equity and common law. 'Part in. is devoted to the practice of the Courts. Contains an amount of valuable and technical matter nowhere else collected. '* From these remarks it will be sufficiently per- ceived what elaborate and painstaking industry, as well as legal knowledge and ability, has been necessary in the compilation of Mr. Joyce's work. N o labour has been spared to save the practitioner labour, and no research has been omitted which could tend towards the elucidation and exemplifi- cation of the general principles of the Law and Practice of Injunctions." — Law youmaL " He does not attempt to go an inch beyond thai for which he has express wntten authority ; he al- lows the cases to speak, and does not speak for them. "The work is something more than a treatise on the Law of Injunctions. It gives us the general law on almost every subject to which the process of injunction is applicable. Not only English, but American decisions are cited, the aggregate number J>eing 3»50o, and the statutes cited i6o, whilst the index is, we think, the most elaborate we have ever seen — occupying nearly 2r» pages. The work is probably entirely exhaustive." — Law Times. "This work, considered either as to its matter or manner of execution, is no ordinary work. It is a complete and exhaustive treatise both as to the law and the practice of granting injunctions. It must sunersede all other works on the subject. The terse statement of the practice will be found of incalculable vaiue.^ We know of no book as suitable to supply a knowledge of the law of injunctions to our common law friends as Mr. Joyce's exhaustive work. It is alike indispensable to members of the Common Law and Equity Bars. Mr. Joyce's gi eat work would be a casket without a key unless accompanied by a good index. His index is very full and well arranged. We feel that this work is destined to take its place as a standard text-book, and /Ac texi-book on the particular subject of which it treats. The author deserves great credit for the very great labour bestowed upon it. The publishers, as usual, have acquitted themselves in a manner deserving of the high reputation they bear." — Canada Law youmaL STEVENS &■ HAYNES, BELL YARD, TEMPLE BAR. 45 Third Edition, in 8vo, price los., cloth, A TREATISE UPON THE LAW OF EXTRADITION, WITH THE CONVENTIONS UPON THE SUBJECT EXISTING BETWEEN ENGLAND AND FOREIGN NATIONS, AND THE CASES DECIDED THEREON. By Sir EDWARD CLARKE, OF LINCOLN'S INN, " Mr. Clarke's accurate and sensible book is the best authority to which the En|^lish reader can turn upon the subject of Extradition," — Saturday Review > "The opinion we expressed of the merits of this work when it first appeared has been fully justified by the reputation it has gained. It is seldom we come across a book possessing so much interest to the general reader and at the same time furnishing so useful a guide to the lawyer." — Solicitor^ Journal, "The appearance of a second edition of this treatise does not surprise us. It is a useful book, well arranged and well written. A student who Q.C., M.P. wants to learn the principles and practice of the law of extradition will be greatly helped by Mr, Clarke. Lawyers v/ho have extradition business will find this voJume an excellent book of reference. Magistrates who have to administer the extradition law will be greatly assisted by a careful perusal of 'Clarke upon Extradition.' This may be called a warm commendation, but those who have read the book will not say it is unmerited." — La'w Joitrjial. The Times of September 7, 1874, in a long article upon "Extradition Treaties," makes con- siderable use of this work and writes of it as " Afr. Clarke's useful Work on Extraditioji" In 8vo, price zs. 6d., cloth, TABLES OF STAMP DUTIES FROM 1815 TO 1878. By WALTER ARTHUR COPINGER, OF THE MIDDLE TEMPLE, ESQUIRE, BARRISTER-AT-LAW : AUTHOR OF " THE LAW OF COPYRIGHT IN WORKS OF LITERATURE AND ART," " INDEX TO PRECEDENTS IN CONVEYANCING," " TITLE DEEDS," &C ' We think this little book ought to find its way into a good many chambers and offices." — Soli- citors' youmal. "This book, or at least one containing the same amount of valuable and well-arranged information, should find a place in every Solicitor's office. It is of especial value when examining the abstract of a large number of old title-deeds." — Lain Titnes. His Tables 0/ Siajnp DntieSy/rorn 1815 to 1878, have already been tested in Chambers, and being now published, will materially lighten the labours of the profession in a tedious department, yet one re- quiring great care." — Lazu Magazine and Review. In one volume, 8vo, price 14J., cloth, TITLE DEEDS: THEIR CUSTODY, INSPECTION, AND PRODUCTION, AT LAW, IN EQUITY, AND IN MATTERS OF CONVEYANCING, Including Covenants for the Production of Deeds and Attested Copies ; with an Appendix of Precedents, the Vendor and Purchaser Act, 1874, &c., &c., &c. By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law ; Author of " The Law of Copyright " and " Index to Precedents in Conveyancing." " The literary execution of the work is good enough to invite quotation, but the volume is not large, and we content ourselves with recommending it to the profession." — Law Times. " A really good treatise on this subject must be essential to the lawyer : and this is what we have here. Mr. Copinger has supplied a much-felt want, by the compilation of this volume. We have not space to go into the details of the book ; it appears well arranged, clearly written, and fully elaborated. With these few remarks we recommend his volume to our readers." — Law Journal. Third Edition, in 8vo, considerably enlarged, price 36^., cloth, THE LAW OF COPYRIGHT In Works of Literature and Art ; including that of the Drama, Music, Engraving, Sculpture, Painting, Photography, and Ornamental and Useful Designs ; together with International and Foreign Copyright, with the Statutes Relating thereto, and References to the English and American Decisions. By Walter Arthur Copinger, of the Middle Temple, Barrister-at-Law. "Mr Copinger's book is very comprehensive, , merits which will, doubtless, lead to the placing of dealing with every branch of his subject, and even th.s edition on the shelves of the members of the extending to copyright in foreign countries. So far profession whose business is concerned with copy- " we hafe examined, we have found all the recent --ift ; and deservedly, for the book is one of con- withorities noted up with scrupulous care, and siderable value. — Wi«/.« y^umal. there is an unusually good index; These are i« STEVENS &' HAYNES, BELL YARD, TEMPLE BAR. Third Edition, in One large Volume, 8vo, price y,s., cloth, A MAGISTERIAL AND POLICE GDIDE: BEING THE LAW RELATING TO THE PROCEDURE, JURISDICTION, and DUTIES of MAGISTRATES AND POLICE AUTHORITIES, IN THE METROPOLIS AND IN THE COUNTRY. With an Introduction showing the General Procedure before Magistrates both in Indictable , and Summary Matters. By henry C. greenwood, STIPENDIARV MAGISTRATE FOR THE DISTRICT OF THE STAFFORDSHIRE liOTTERIES J AND TEMPLE CHEVALIER MARTIN, CHIEF CLERK TO THE MAGISTRATES AT LAMBETH POLICE COURT, LONDON ; AUTHOR OF "the LAW OF MAINTENANCE AND DESERTION," "THE NEW FORMULIST," ETC. Third Edition. Including the Session 52 & 53 Vict., and the Cases Decided in the Superior Courts to the End of the Year 1889, revised and enlarged. By temple chevalier MARTIN. "A second edition has appeared of Messrs. Greenwood and Martin's valuable and comprehensive magisterial and police Guide, a book which Justices of the peace should take care to include in their Libraries." — Saturday Review. " Hence it is that we rarely Hght upon a work which commands our confidence, not merely by its research, but also by its grasp of the subject of which it treats. The volume before us is one of the happy few of this latter class, and it is on this account that the public favour will certainly wait upon it. We are moreover convinced that no effort has been spared by its authors to render it a thoroughly efficient and trustworthy guide." — Law Journal. "Magistrates will find a valuable handbook in Messrs. Greenwood and Martin's 'Magisterial and Police Guide,' of which a fresh Edition has just been published." The Times. " A very valuable introduction, treating of proceedings before Magistrates. and largely of the Summary Jurisdiction Act, is in itself a treatise which will repay perusal. We expressed our high opinion of the Guide when it first appeared, .Tnd the favourable impression then produced is increased by our examination of this Second Edition." — Law Times. " For the form of the work we have nothing but commendation. We may say we have here our ideal law book. It maybe said to omit nothing which it ought to contain." Law Times. " This handsome volume aims at presenting a comprehensive magisterial handbook for the whole of England. The mode of arrangement seems to us excellent, and is well carried out." — Solicitors' Journal. " The Magisterial and Police Guide, by Mr. Henry Greenwood and Mr. Temple Martin, is a model work in its conciseness, and, so far as we have been able to test it in completeness and accuracy. It ought to be in the hands of all who, as magistrates or otherwise, have aiitiiority in matters 0/ police."' — Daily News. " This workis eminently practical, and stifplies a real want. It plainly and concisely states the law on all points upon which Magistrates are called upon to adjudicate, syste- matically arranged, so as to be easy of reference. It ought to find a place on every Justice's table, and we cannot but tliink that its usefulness will speedily ensure for it as large a sale as its merits deserve. " — Midland Counties Herald. •• The exceedingly arduous task of collecting together all the enactments on the subject has been ably and efficiently performed, and the arrangement is so methodical and precise that one is able to lay a finger on a Section of an Act almost in a moment. It is wonderful what a mass of information is comprised in so comparatively small a space. We have much pleasure in recommending the volume not only to our professional, but also to our general readers ; nothing can be more useful to the pubhc than an acquaintance with the outlines of magisterial jurisdiction and procedure." — Sheffield Post. STEVENS >Sr» ffAYNES, BELL YARD, TEMPLE BAR. 47 In one thick volume, 8vo, price 32^., cloth, THE LAW OF RAILWAY COMPANIES. Comprising the Companies Clauses, the' Lands Clauses, the Railways Clauses Consoli- tlation Acts, the Railway Companies Act, 1867, and the Regulation of Railways Act, 1868 ; with Notes of Cases on all the Sections, brought down to the end of the year 1868 ; together with an Appendix giving all the other material Acts relating to Railways, and the Standing Orders of the Houses of Lords and Commons ; and a copious Index. By Henry Godefroi, of Lincoln's Inn, and John Shortt, of the Middle Temple, Barristers-at-Law. In a handy volume, crown 8vo, 1870, price \Qs. 6d., cloth, THE LAW OF SALVAGE, As administered in the High Court of Admiralty and the County Courts ; with the Principal Authorities, English and American, brought down to the present time ; and an Appendix, containing Statutes, Forms, f»hle of Fees, etc. By Edwyn Jones, of Gray's Inn, Barrister-at-Law. In crown 8vo, price 4J. , cloth, A HANDBOOK OF THE LAW OF PARLIAMENTARY REGISTRATION. WITH AN APPENDIX OF STATUTES AND FULL INDEX. By J. R. SEAGER, Registration Agent. In 8vo, price S^-, cloth, THE LAW OF PROMOTERS OF PUBLIC COMPANIES. By NEWMAN WATTS, OF Lincoln's inn, barrister-at-law. " Some recent cases in our law courts, which at the time attracted much public notice, have demon- strated the want of some clear and concise exposi- tion of the powers and liabilities of promoters, and this task has been ably performed by Mr. Newman Watts." — Investor's Guardian. " Mr. Watts has brought together all the lead- ing decisions relating to promoters and directors, and has arranged the information in a very satisfac- tory manner, so as to readily show the rights of different parties and the steps which can be legally taken by promoters to further interests of new com- panies." — Daily Chronicle, Second Edition, in One Vol., 8vo, price I2J., cloth, A COMPENDIUM OF ROMAN LAW, FouNnED ON THE INSTITUTES OF JuSTINlAN ; together with Examination Questions Set in the University and Bar Examinations (with Solutions), and Definitions of Leading Terms in the Words of the Principal Authorities. Second Edition. By Gordon Campbell, of the Inner Temple, M.A., late Scholar of Exeter College, Oxford; M.A., LL.D., Trinity College, Cambridge; Author of "An Analysis of Austin's Jurisprudence, or the Philosophy of Positive Law." In 8vo, price Ts. 6d., cloth, TITLES TO MINES IN THE UNITED STATES, WITH THE STATUTES AND REFERENCES TO THE DECISIONS OF THE COURTS RELATING THERETO. By W. A. HARRIS, B.A. OxoN., OF Lincoln's inn, barrister-at-law ; and of the American bar. 43 STEVENS &* HA YNES, BELL YARD, TEMPLE BAR. I N DE X . _ , To the Names of Authors and Editors of Works enumerated m this Catalogue Aldred (P. F.), page 21. Argles (N.), 32. Attenborough (C. L.), 27. Baldwin (K. T.), iS- Banning (H. T.), 42 IBeal (E.), 32. bellewe (r.), 34- Beven (T.) 14. Blyth(E. E.), 22. Brice (Seward), 9, 16. Brooke (Sir R.). 35- Brooks (W. J.), i3' Brown (Archibald), 20, 22, 26, 33, 40. Browne (J. H. Balfour), 19. Buchanan {].), 38. Buckley (H. B.), i7- Bucknill(T. T.), 34, 35. Campbell (Gordon), 47. Campbell (Robert), 9, 40. Carmichael (C. H. E.), 21. Cecil (Lord R.), h. Chaster (A. W.), 32. Clarke (Edward), 45. CoBBETT (Pitt), 43. Coghlan (W. M.), 28. CooKE (Sir G.), 35- Cooke (Hugh), 10. CopiNGER (W. A.), ,40, 42, 45. Corner (R. J.), 10. Craies (W. F.), 6, 9. Cunningham (H. S.), 38, 42. Cunningham (John), 7. Cunningham (T.), 34. Daniel (E. M.), 42- Darling (C. J.), 18. Deane (H. C), 23. DeBruyn(D. P.), 38. De Wal (J.), 38. Duncan (J. A.), 33- Edwards (W. D.), 16, 39. Elgood (E. j.), 6, 18, 43. Elliott (G.), 14. Emden (A.), 8, II. Eversley (W. p.), 9. Finlason (W. F.), 32. FoA(E.), II. FooTE (J. Alderson), 36. Forbes (U. A.), 18. Forsyth (W.), 14. Frost (R.), 12. Gibbs (F. W.), 10. Godefroi (H.), 47. Greenwood (H. C), 46. Griffiths (J. R.), 40. Grigsby (W. E.), 43. Grotius (Hugo), 38. Hall (R. G.), 30. Hanson (A,), 10. Hardcastle (H.), 9, 33. Harris (Seymour F.), 20, 27. Harris (W. A.), 47. Harrison (J. C), 23. Harwood (R. G.), 10. Hazlitt (W.), 29. Higgixs (C), 3°- Houston (J. ), 32. Hudson (A. A.), 12. Hurst (J.), 11. Indermaur (John), 24, 25, 28. Jones (E.), 47. Joyce (W.), 44. Kay (Joseph), 17. Kelke(W. H.), 6. Kelyng(SirJ.), 3S- Kelynge (W.), 35. KoTzfe (J. G.), 38- Lloyd (Eyre), 13. L0RENz(C. A.), 38. Loveland (R. L.), 30, 34, 3S. Maasdorp (A. F. S.), 38. Macaskie (S. C), 7. Mansfield (Hoil j. W.), 17. March (John), 35. Marcy (G. N.), 26. Martin (Temple C), 7, 46. Mattinson (M. W.), 7. May (H. W.), 29. Mayne (John D.), 3'i 38. Mellor (F. H.), 10. Menzies(W.), 38. Moore (S.A.), 30. 0'MALLEy(E. L.), 33. Pavitt (A.), 32. Peile (C. j.), 7- Pemberton (L. L.), 18, 32. Phipson (S. L.), 20. Porter (T. B.), 6. Reilly (F. S.), 29. Ringwood (R.), 13, is, 29. Salkowski (C), 14. Salmond (J. W.), 13. Savigny (F. C. Von), 20. Scott (C. E.), 32. Seager (J. R.), 47. Short (F. H.), 10, 41. Shortt (John), 47. Shower (Sir B.), 34. Simpson (A. H.), 43. Slater (J.), 7. Smith (Eustace), 23, 39. Smith (F. J.), 6. Smith (Lumley), 31. Snell (E. H. T.), 22. Story, 43. Tarring (C. J.), 26, 41, 42. Taswell Langmead, 21. Thomas (Ernest C), 28. Tyssen (A. D.), 39. Van der Keesel (D. G.), 38. Van Leeuwen, 38. Van Zyl, 38. Waite (W. T.), 22. Walker (W. G.), 6, 18, 43. Watts (C. N.), 47. Wertheimer (J.), 32. Whiteford (F. M.), 20. . Whitfield (E. E.), 14. Williams (S. E.), 7. Worthington {s. W.), 29. tONnON: BRAnUUliV, ACNEW, d co. LD,, PRIXTPRS, WHITEFHIARS, E.c. ^\?;t%\