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Maps, plates, charts, etc., may be filmed at different reduction ratios. Those too large to be entirely included in one exposure ere filmed beginning in the upper left hend corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre filmis A des taux de reduction diffirents. Lorsque le dvtcument est trop grand pour Atre repk ')duit en un seul clichi, ii est fiimi A partir de ii ai.gle supirieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images nicessaire. Les diagrammes suivants iilustrent la mithode. 1 2 3 1 2 3 4 5 6 THE LAW OF COMPANIES, BDH J08TIOE8 OF BBB MAJESTY'S UOVRT OF APPBAL. ASSISTED BT WALTER B. LINDLEY, M.A., OF LINCOLN'S INN, ESQ., BARRISTER AT-LilW. WILLIAM C. GULL, M.A., or Lincoln's inn, esq., barribter-at-law, VINKRIAN scholar IN TBS UNIVEBSITT OF OXroRD, 1888. LONDON : SWEET AND MAXWELL, Limited, 3, CHANCERY LANE, AND 8, BELL YARD, Unit SooiuulItTs anil $ubIiBi)ra. MEREDITH, RAY, k LITTLER, MANCHESTER; HODOES, FIGGIS, Jc CO., AND E. FONSONBT, DUBLIN; THACKER, SPINK, ft CO., CALCUTTA ; 0. F. MAXWELL, MELBOURNE ft SYDNEY. 1889. v^ tOXDON: PREFACE. The present work is the result of an attempt to in- vestigate the Law of Companies considered as a branch of the Law of Partnership. The Statutory Law of Partnership was long in a state of transition ; but this state may be said to have termi- nated when the Companies act, 1862, was passed, con- solidating, repealing and amending most of the statutes then in force relating to Joint-Stock Companies. The Law of Companies has so developed since that time that it has become desirable to devote a separate volume to it instead of including it in a treatise on the Law of Partnership as in former editions. The Companies acts, 1862 to 1886, and the rules promulgated under their provisions are printed in an appendix; and, to facilitate reference to them, a separate index to their sections and clauses is inserted immediately before the general index, with which the work concludes. It must always be borne in mind, that in order to determine any legal question relating to companies, it is indispensable to attend closely to the language of the statutes by which they are governed ; and although for convenience, the sub;:itance of various statutory enact- ri PRXFAOE. mcnts has been shortly stated in the text, the reader is warned not to rely on these abridgments, but to consult the statutes themselves in every case which he may have to investigate. Great pains have been taken to render this Edition deserving of the favourable reception accorded to those which have preceded it. The separation of the matter in this treatise from that in the volume on Partnership already published has rendered it necessary to recast the whole work. The former arrangement has been followed in the main; but those portions which relate to Fraudulent Prospectuses, Borrowing Money, the Duties of Promoters, Transfers in blank. Forged Titinsfers, the amalgamation and reconstruction of Companies and Building Societies, have been so de- veloped as to be practically new. Other portions, especially that I'elating to Contributories, have been rearranged and rewritten. The whole treatise has, in shoi't, been carefully revised throughout, and adapted to the most recent decisions. Notwithstanding, however, the labour bestowed upon the work, and the &axiety of the author to render it worthy of the profession to which he has the honour to belong, the midtiplicity and difficulty of the questions with which he has had to deal are such, that he dare not venture to hope that he has always avoided error, or that his work is free from serious faults: and although it has engaged his unremitting attention fur more than thirty years, he is ppiiiiully aware that it is even now but an imperfect production. PRKPAOE. Vll It only romuins to add that thitt Edition has been prepared by the author and his son, Mr. W. B. Lindley, and Mr. W. C (i^ull. Thtjy havo not only revised the sheets, but have examined the decisions on all the most (lifti(!nlt subjects, rwjust somo of the portions whi«!li are new, mad(^ new indexes, and have thus greatly diminislKnl tlie author's labours and contributed to the utility of the work. KoVAl, r«(»;ilT(i ciK .lUNTICK, Jilitr, 18H9. BFACB lUTHOaiTIE BBIUSVIAT] DDITIONS < RTBOOUOTO BK I.-0 3K II.-( 3K IIL- JK IV.-< kl'FENDXZ SIDKZES Nature of Historical Different 8 lOP THE F [CHAP. 1.-I Shot. 1. ANALYSIS OF CONTENTS. PAUK Ittkct V IcTHOBiTiBs Cited , . . . xxi DBHKVIATIONS Ixxiv DDITIONS AND CoBRKOTIONB IxXV HTBODUOTORY 1 [)K I.— Of the Formation of Cohpanixs and of the Allotment of Shares 11 DK IL— Of tub Riohts and Obligations ur Companies as hboardb Nok-Mkmber;' 143 [)K IIL— Of the Rights and Obligations of Members of Com- panies BETWEEN themselves 29B OK IV.— Of the Dissolution and Windimo-cp of Companies . . 608 krPENOix 009 HOKXEs nil INTRODUCTORY. I. Nature of a company 1 S. Historical sketch of the kw relating to companies 2 Different sorts of companies 7 BOOK I. IGF THE FORMATION OF COMPANIES AND OF THE ALLOTMENT OF SHARES. Qeneral observations 11 [CHAP. I.— Aobeements to take Shares. Sect. 1. — Applications for and allotment of shares 13 ANALTBI8 OF CONTKNTS. \\f, Sect. 2. — Of the prospectus auu departuies from it ... . |)| [As to fraudulent prosiiectuses, see infra, Ch. III.] Sect. 3. — Of the return of subscriptions to companies on the ground of failure of consideration i [As to fraud, see infra, Ch. III.] CHAP. II.— Of Memuermhip. m Sect. 1. — Who can be members j j and herein of 1. Aliens 3 2. Convicts ;!>» 3. Infants ;& 4. Lunatics 4<>^ a. Married women 41 1 6. Corporations and conipanii>!< 43 1 Sect. 2. — What constitutes membership 43 1 and herein of membei'sliii> by estoppel 1 . As between the company and an alleged shareholder . 4:i I 2. As between an alleged shareholder and a creditor . . 54 1 Sect. 3. — Of registers of shareholder^ and certificates of title to shares, and herein of the correction of regiijters. , . . ti Sect. 4. — Of scrip (15 1 i'HAV. III.- Op Me.mbership induced by Falsk Statements. Sect. 1. — Effett of false statcmentH apart froni statute . . . . (i^ 1 1. Requisites for redress ()8 ' 2. Remedy against the company 74 3. Remedy against the individuals who made the state- ments ciiminal HT civil 88 Sect. 2.— Statutory enactments, 30 «& 31 Vict. c. 131, § 38 . . . 91 CHAP. IV.— Of Different Ci^asseh of Companies. Class I. Cost-book mining companies^ 93 Class II. Companies incorporated or privileged by tlw crown, viz. : - 1. Chartered companies . . . .9" •2. Companies formed under the Letters patent act, 7 Wm. 4 & 1 Vict. c. 73 . 9!) Class III. — Companies incorporated or privileged by some special act of Parliament : — 1. Companies not incorporated, but, em- powered to sue and be sued . . . 101 2. Incorporated companies . . .102 ANALYSIS OF CONTENTS. XI n-,! ] Tound of • *1 • 3r« • i»l 41 • . 43 • 43 )lder . 4I( r. 54 shares, • • fi5 6^ • 68 . . 74 state- , ^ h; • 88 . 91 93 f the tteivs 73 . i»l| Investments and loans Judicial proceedings 2811 Leases 20l| Mortgages and pledges 20i| Notice 2w| Purchases Representations Sales 20;| Transfer of business Sect. 2.— Torts 2*1 Sect. 3.- Frauds 211| CHAP. IV. — Of the proper Form op Contracts with Companies and ON the effect of Form on LiAmLiTY. Sect. 1. — Of the rule requiring contracts of corporations to be under seal 221| Sect. 2. — Statutory exceptions to the foregoing rule . . . . 225| Sect. 3. — Bills of exchange and promissory notes .... 23ii| CHAP. V. — LiABiLrry of Companies in respect of Contracts not Binding on them bdt of which they have had THE Benefit ANALYSIS OF CONTENTS. Xlll PAOK IaP. VI. Op the Liability op Individual Members of Companies TO Crbditobb. Sjct. 1. Of the liabilities of directors 1. For their own acts 239 2. For the acts of each other 244 SacT. 2. — Of the liabilities of shareholders 1. As to the extent of liability 245 a) of liability at common law and of attempts to restrict it 245 b) of limited liability by statute 251 2. As to the duration of liability a) commencement of liability 254 b) termination of liability 255 3. On the commencement and termination of liability in the case of amalgamating companies . . . . 258 lAP. VII. — Op Actions between Companies and Non-Members. Sect. 1. — Of actions by and against companies 1. Incorporated companies 262 2. Companies empowered to sue and be sued by public officers 265 3. Other unincorporated companies 270 Sect. 2. — Of set-oflf by and against companies 273 Sect. 3. — Of execution against companies and shareholders on judg- ments against their companies 276 1. Execution against the company 278 2. Proceedings against shareholders upon a judgment obtained against a company or its public officer generally 280 3. Proceedings against members of particular companies under a) 7 Geo. 4, c. 46 285 b) 7 Wm. 4 & 1 Vict c. 73. c) 8 & 9 Vict. c. 16 d) other companies Note on procedure by scire facias . 289 290 293 294 XIV ANALYSIS OF CONTENTS. BOOK III. i I 11 OF THE RIGHTS AND OBLIGATIONS OF MEMBERS OF COMPANltf BETWEEN THEMSELVES. CHAP. I. — Op thk Right to take Part in the Management of Companies' Affairs. Sect. 1, — Of directors and their powers iff Sect. 2. — Of shareholders and their powers ;Kt| Sect. 3. — Of the powers of majorities 31,1 Sect. 4. — Of the constitution and management of particular companies L Cost-book mining companies Z 2. Companies governed by 8 & 9 Vict. c. 16 . . . .Ijj 3. Companies governed by the Companies act, 1862 . . wl CHAP. II. — Op the Fiduciary Relation of Promoters and Directors to their respective Companies. Sect. 1. — Of promoters 345 1 Sect. 2. — Of directors and of their position as trustees Sect. 3. — Of the right of directors and others to indemnity . . . 3i9| CHAP. III. — Of the Capital of Companies ; of Calls ; of Dividends ; AND OF Accounts. Sect. 1. — General observations on the capital of companies . 1. Borrowed capital 391 1 2. Share capital 39J| varying the amount of capital ,392 1 the division ^of capital into shares nominal and paid-up capital 394 1 preferential capital 396 1 increasing capital 391 1 3. Statutory enactments relating to the capitals of particular kinds of companies the Companies clauses acts the Companies act, 1862 401 1 Reduction of capital 402 1 Sect. 2.— Of calls 40: 1. The persons by whom calls can be made . . . 408 1 2. The purposes for which they can be made . . . 409 for starting the company 409 for carrying on the business of the company . . . 411 1 ANALYSIS OF CONTENTS. XV VAOTt 3. The manner of making calls 414 the rebolution making a call 415 the notice that a call has been made . . . . 417 4. The persons liable to pay calls 411) subscribers 420 shareholders 420 representatives of subscriber's and shareholders . . 425 5. Actions for calls 427 Sect. 3.— Of dividends 429 payment of dividends out of capital . . .431 rights of preference shareholders 4;)5 actions for 4;J7 in particular companies 4.37 Sect. 4. — Of accounts 1. Of the duty to keep and the right to inspect them . 439 2. Of false and fraudulent accounts 446 ;!HAP. IV.— Of Shaues in Companies ; their Transfer and Sale. Sect. 1. — Of the nature of a share 449 Sect. 2. — Of the amount of a share 455 Sect. 3. — Of a company's lien on the shares of its members . . . 456 Sect. 4. — Of charging orders on shares 460 Sect. 5. — Of the transfer of shares 464 1. Of ordinary transfers 464 2. Of transfers in blank 471 3. Of forged transfers 483 and herein of estoppel by carelessness . . . . 486 [as to transfers on death and bankruptcy, see infra, Ch. VII. and VIII.] Sect, 6. — Of sales of shares, and questions arising thereon . . . 487 1. Sales not on Stock Exchange 491 vendor's obligations 491 purchaser's obligations 492 fraudulent sales 496 sales by auction 497 actions between buyer and seller . . . . 498 2. Sales on Stock Exchange 500 1. Of the vendor and of the broker or jobber who agrees to buy from him .... 503 2. Of the vendor and the ultimate purchaser . . 505 3. Of the vendor and undisclosed and inter- mediate purchasers 508 4. Of the vendor and purchaser as regards their respective brokers 511 XVI ANALYSIS OF CONTENTS. CHAP. V. — Of the Subrkndeb op Shares. Sect. 1. — Generally 51: 1 Sect. 2. — In particular companies Si' I CHAP. VI. — Of the Forfeiture op Shares. Right to forfeit bh\ Exercise of the right 532 Effect of forfeiture 533 Relief against forfeiture 534 1 CHAP. VII. — Of the Effect op the Death of a Shareholder. Sect. 1. — As between the executors and the company . . . . 536 1 Sect. 2. — As between the creditors of the company and the executors . 539 1 Sect. 3. — As regards tha separate creditors and legatees of the deceased 540 1 CHAP. VIII.— Of the Effect op the Bankruptcy of a Shareholder '■■49 1 Position of trustee and disclaimer by him . . .553 Proof by companies for calls, &c 554 CHAP. IX. — Of Actions between Companies and their Members AND BETWEEN THE MEMBERS THEMSELVES. General observations 559 Sect. 1. — Of the parties to sue and be sued 562 1. Actions by and against incorporated companies . . 562 2. Actions by and against public officers . . . . 504 3. Actions by one member on behalf of himself and others 565 i Sect. 2. — Of the rule that the court will not interfere in matters of internal regulation 574 j Sect. 3. — Of the rule that the court will not interfere at the instance of persons who have been guilty of laches . . . . 582 Sect. 4. — Of particular actions . . 585 1 1. Specific performance 585 2. Rescission of contract and return of deposits . .589 3. Account and discovery 594 1 4. Injunctions 596 5. Receivers 602 6. Mandamus - . ' . ,603 7. Other miscellaneous actions 606 ANAIiTSIB OF CONTENTS. XVU BOOK IV. — I — OF THE DISSOLUTION AND WINDING UP OF COMPANIES. PAOI Introductory 608 CHAP. I.— Winding up by the Court. Sect. 1. — The Court having jurisdiction over the winding up of the Company 615 Sect. 2. — Companies which can be wound up hj the Court, or subject to its supervision 616 Sect. 3. — Persons at whose instance a winding-up order will be made 624 Sect. 4. — Circumstances under which a compulsory Tsinding-up order will be made 628 1. Circumstances under which a winding-up order can be made 630 2. Circumstances influencing the discretion of the Court . 635 Creditors' petitions 635 Contributories' petitions 639 3. Summary of cases 644 Sect. 5. — Proceedings to obtain a winding-up order and to discharge it, and to stay proceedings under it . . . 654 Appeals from, and staying proceedings under, winding-up order 661 Sect. 6. — Effect of winding up as regards dealings with property, &c. . 664 1. Commencement of winding up 664 2. Effect of winding up on dealings with property . . 666 3. Effect of vvdnding up on legal proceedings against the company and its members 669 a) As regards companies formed and registered under the act of 1862 672 h) As regards companies not formed under that act . 682 Sect. 7. — Proceedings under compulsory mnding-up st (2 De G. F. & J. 650) Adley x Whitstable Co. 308, 322, 433*, 580», 597 Agar V. AthcniGum Life Insurance Society . , 165, 168', 174, 180, 199, 224 Aggs V. Nicholson 186, 226* Agra Bonk's claim and Mostermon's Rank parte (6 Ch. 206) 234, 240 726 (ex 175, 708, 712, 881 712, 894, 898 727 (12 Eq. 509) . . (2 Ch. 391) Anderson (S Eq. 837) Connan (7 Eq. 102) Tondenr (6 Eq. 160) Waring (W. N. 1866, 399) Agricultural Cattle Insurance Co. 519*, 838 (1 Mac. & G. 170) . 631 (3 De G. F. & J. 194) . 686, 702 (10 Ch. 1) . . . 737, 866 Baird (5 Ch. 725) Belhaven (3 De G. J. & S. 41) Brotherhood (31 Beav. 366) Bosh (6 Ch. 246) Dixon (5 Ch. 79) Official Manager (10 Ch. 1) Smallcorabe ^3 Eq. 769) Spackman (1 Du G. k Sm. 599) (1 M. & G. 170) Stanhope (1 Ch. 161) Stewart (1 Ch. 611) V. Fitzgerald 112, 422 A. O. V. Alexander . . .911 V. Birkbeck . , . . 137 '4 xxu AUTHOIUTIBS RBFSnRBD TO. VAOB G. t'. Ely, Haddenham, and Sutton Railway Co. . .581 — i>, Qieat Eastern Hailwny Co. 161, 163, 166, 816, 317, 818, 321, 681 — t>, Urcat Northorn nailway Co. . 264, 310, 321, 680' Gould , . . . Higgins , . ' . Muntolioro . , , . Norwii:h HlireWblmry Hridgu Co. . V. V, V. V. V. , 697 318 464 460 608 264, 681 AituluBoii V. Leo . . . 613 Alabaster's case . . . 774, 864 Albert Average Asijuciation 702 Hlyth and Co. (13 Eq. 620) Albert Life Asmuanco Co. (9 Eq. 70(j) . ... 240, 261 (6 Ch. 381) . . 710, 711*, 712 IJell (0 Eq. 706) lUeacklev (0 Eq. 706) Cook (9 Eq. 703) ( 'raig"» Executors (9 Eq. 706) Kerr and Stubbs (9 Eq. 706) Western Life Absurance So- ciety (11 Eq. 164) Wilson (0 Eq. 706) Albion Life Assurance Society 737, 863 Brown (18 Ch. D. 630) Sanders (20 Ch. D. 403) Winstone (12 Oh. D. 239) Albiou Steel Wire Co. . V, Martin 681, 721 349, 362*, 366, 368 37 261 246, 184 249 312 420 150 . 252, 010 747*, 826* Musgrave (16 451 247 911 708 Albi'ccht V. Sussnian Alchorne v. Saville Aldborough Hotel Co. Simpson (4 CIi. 184) Aldebort «>. Kearns V. Leaf Alderson v. Clay Aldhain v. Brown . . 32, 33* Aldred v. North Midland Railway Co Aldridge v. Cato Alexander's case Alexander v. Bearuc . V. Worman Alexander Water Co. r Alexandra Hall Co. Alexandra Palace Co, D. 58) . (21 Ch. D. 149) (23Ch. D. 297) . Alu.sandra Park Co. Hart (6 Eq. 612) Sharon (W. N. 1866, 231) Alison's civse . . . 736, 774, 849 Alivon V. Furnival . . . . 910 Allard v. Bourne . 160, 206 Allen V. Graves . . 504, 609, 610 — — V. London and South- Western Railway Co. . . . 209 V. Sea, Fire and Life Assur- ance Co. . . 185, 226, 234* Alliance Bank . . . .727 Alliance Society . . . . 872 Allin'scase 829 Ch. 266, 714 375, 432, 696 . 862 FAue 272 Allison V. Herring Alma Spinning Co. Bottomley (16 Ch. D. 681) Alniada v. Tirlto Co. 334, 396, 401, 783, 787 Amu/on Life Assurance and Loan Co. Blackburn (3 Dr. 409) (8 Do G. M. & 0. 177) Hutchinson (26 L. J.) Anilwrgato, kc, Railway Co. v. Coulthard . . . . 416 V. Mitchell . 303*, 300, 408, 418 V. Norclilfo .... 418 Ambrose Lake Tin Mining Co. 360*, 605 Clarke (8 Ch. D. 636) Moss (14 Ch. D. 390) Taylor (14 Ch. D. 390) Ambrose v. The Dunmow Union 222 Amsinck's case .... 767 Spottiswood (6 Do G. M. & G. 346) Anchor Assurance Co. (6 Ch. 632) 260*, 735 Anchor Insurance Co.'s case (2 J. & H. 408) . . . 261, 735 Anderson's case (17 Ch. Div. 373) 21*, 69, 123, 124 118, 783, 709 . 7:58 . . 829 784, 786, 789* 821, 856 . 861 . 248 8,53 922 (7 Ch. D. 75) (3 K(|. 337) . ,(8Eq. 500) . Andress's case . Andrew's case (3 Ch. 161) I'. Burnes . . . . V. Ellison .... Andrews and Alexander's case (8 Eq. 176) Andrews or Jones v. Swansea Cambrian B. B. Soc. Angas' case . 41, 663, 760, 807, 862 Angelo, re . . 461, 469 Angerstoin, ex i>arte , . . 861 Anglesea Colliery Co. 783, 786, 862, 869, 882 Anglo-African Steamship Co. 686, 688 Anglo-Australian Assurance Co. 641, 660* V. British Provident, &o,, Society . . 169, 184, 201, 686* Anglo -Australian and Universal Family Life Assurance Co. Smith (1 Dr. & Sm. 113) Anglo-Californian Gold MiningCo. 662 V. Lewis . . . 307, 870 Anglo-Danish and Baltic Steam Navigation Co. Sahlgreen and Carrall (3 Ch. 323) Anglo- Danubian, &c.. Colliery Co. Walker (6 Eq. 30) Anglo-Danubian Co. v. Rogersou Anglo-Egyptian Navigation Co. . Anglo-French Co-operative Society Pelley (21 Ch. D. 492) Anglo-French Porcelain Co. v. Harris 197, 401 264 669 62 AUTRORITIBB REFERRED TO. I'AOR AtiffloOrwik Steam, Ac, Co. 632, «60», " 66U Carralli antl Ha«g(iril (4 Ch, 174) Anglo- Italian Bank ami De Uosaz 883 Anulo-Moravian, kc, ItailwayCo. •* Dent ^8 Ch. 708) KorbcH (8 Ch. 708) Wntkin, ex uurle {\ Ch. U. 130) \iiiflo-Roiniino VVnter Co. Wright (6 Ch. 437) Aiinii. (2 Str. 696) . A|i|H:rley v. Page . . . 505 A|i|il«ton V. Uinks Applotrcowick Load Mining Co. . Apiiloyard, ex jntrle . Apps, ex parte Archer v. Harrison ArgUH Lite AHHiiranco Co, Arkwright i'. Nowbould Arniitugo v. Wiilkor Artnstrong'H case (3 140) . (1 Ue 0. k Hin. Amistrong v. Burnet V, Normandy 1104 61)3 240 . 784 736 . 767, 83U 920 184, 249, 201, 839, 899 70, 73, 90, 91, 92 916 Do O. & .S. . . 71f. 665) . 814, 816 . 426, 538, 544 706 Army and Navy Hotel Co. . . 065 Arnold V. Mayor of Poole . 221, 206 Aniot'H case 705, 752, 700, 762, 781, 784, 788», 795* Art Engraving Co. . . . 081 Arthur Average Association 621, 623, 662, 722, 849, 853, 869 Hargrove li Co. (10 Ch. 642) Arthur v. Midland Railway Co. . 69 Artistic Colour Printing Co. . 676 Fourdrinier (21 Ch. D. 610) Ashbury's case . . . 666, 672 Asiibury Railway Carriage Co. v. Richo 119, 163, 164*^, 176, 315, 334 Ashhury i'. Watson 322, 334, 344, 396, 405, 435, 470, 684 Ashby I'. Blackwell . . . 483 Ashley's case . . 85, 776, 777 Aihpitel V. Sercombe . 31, 32, 33 Ashton V. Lord Langdalu , 461, 462 Ashurst V. Fowler . . .378 V. Mason . . . 376, 377, 378 Ashworth's case . ... 275 Asiatic Banking Corporation . 741 Agra and Mastermau's Bank, (6 Ch. 206) Collum (9 Eq. 236) Royal Bank of India (7 Eq, (4 Ch. 252) Symons (5 Ch. 298) Askew's case (4 Burr. 2200) (9 Ch. 664) f. Aslatt V. Farquharson . Asphaltic Wood-pavement Co. Lee and Chapman (30 Ch. D. 216) Association of Laud Financiers (10 Ch. D. 269) (16 Ch. D. 373) . . 717, 721 Aston, re . . 66, 133, 136, 487, 488 91) 122, 123 . 276 703 xxm VAOK Atlieiiicum Life ANsurance Souiuty f. I'oolny 166, 100, 108, 171, 178, 180, 193, 224, 237*, 247, 249, 260, 275, 737, 740 Athonnum Lifo Aasuranco Society Chinnouk (Juhns. 714) Durham (4 K. & .1. 517) Eagle In. Hi 8. 43) Prince of Wales Life Assurance So. (Johns. 033) Prince of Wales Lile, &c.. Assurance Co. (3 De 0. k J. 000) Richmond (4 K. ft J. 306) .ShuHleld (Johns. 451) Atkins' estate .... 661 Atkins V. Cooke . . . . 661 Atkinson t'. Oroy 644 V. Pocock . . . . 33, 34 Attenborough's case . 20;i Attorneys, ex pnrlc the Society ol 98 Attree v. Ilawc .... 451 Attwood n. Small .... 72, 77 Atwool r. MerryweutiiiM . 309, 672, 673, 576, 678, 579, 681 Audloy Hull Cotton Hiiinning Co. 865 Augusta ( Bank of) t;. Earle . 910 Aulil r. Glasgow Working Men's Building Soc. 320, 524, 872, 918, 920 Austin's case (2 Eq. 435) . 778, 792, 793 795* (W. N. 1867, 138) . . ' 839 Austin V. Guardians of Bothnal Green .... 220, 223 Australasia, Bank of v. Harding . 101 V. Nias . . . .101 Australian Steam Clipper Co. i;. Mounsey . . 191, 199, 203, 315, 317, 398, 406 Direct Steam Navigation Co. (20 Eq. 325) . 674, 727 Miller (6 Ch. D. 70) Steam Ship Co. (4 K. k J. 407) 204 Ayors v. South Australian Banking Co 103 Aylesbury Railway Co. v. Mount 423* V. Thompson . . .69, 423 Ayre's case .... 80 Baoos, ex parte . 487, 622, 840 Baglan Hall Colliery Co. . 783, 798 Bagnall v. Carlton 347, 355*, 357, 359, 361, 302 Bagnalstown and Wexford Rail- way Co 198, 505 Bagshaw, ex parte . 184, 323, 891, 896 V. Eastern Union Railway Co. . 29, 163, 320, 321, 571, 572, 598 Bahia and San Francisco Railway Co. ... 64, 64, 123, 484 Baillie v. Goodwin & Co. . . 909 XXIV AUTHORITIES REFERRED TO. PAGE Baily, ex parte (3 Ch. 592, and 5 Eq. 428) 15, 27*, 122, 769, 772 (15 Jur. 29) . . 529, 843 V. Birkenhead, &c.. Railway Co. . . . 412, 577*, 600 i'. Macaulay . . .145 V. Universal Prov. Life Asso- ciation . . . 45, 54, 59 and Leethaiu's case ^8 En. 94) 865 Bain v. Whitehaven, &c.. Railway Co 68, 105, 106 Bainbridge c. Smith . . 599, 794 Baird's case 426, 812, 848 Baird v. Ross . . 29, 32, 33 Baker's case (1 Dr. & Sm. 55; 193, 226, :J28, 382*, 384, 388, 811 Baker, exj)artc{-i De U. & Sm. 243) 686 )•. Plaskitt . . . 18, 488 V. Sutton .... 452 Baldwin v. Lawrence . . 440, 569 Bale r. Cleland . .88,431,433 Balfour D. Ernest . . 165*, 171 Bnlgooley Distillery Co. . . . 402 Ball, ex parte .... 555 Banco de PortU{,Ml Hooper (11 Ch. D. 317) Waddell (5 App. 161) Bangor and Port Madoc Slate Co. 400, 435, 869 Bank of Augr.sta r. Earle . . 910 Bank of Australasia v. Breillat . 190 V. Harding . 101, 266, 910, 913 V. Nias . 101, 266, 294, 910, 913 Bank of England r. Anderson . 136 r. Booth . . .136 V. Johnson 60, 110, 227, 'ioi, ''«9 Bank of Gibraltar and Malta . 640, 651*, 693 Bank of Hindustan v. Alison 17, 53*, 184, 774, 892 Bank of Hindustan, China, &o. Alison (15 Eq. 394) (9 Ch. 1) Anderson (8 Eq. 509) Campbell (9 Ch. 1) (16 Eq. 417) Croom (16 Eq. 417) Fricker (13 E(i. 178) Harrison (6 Ch. 286) Higgs (2 H. & M. 657) Hippisley (9 Ch. 1) (16 Eq. 417) Kintrea (5 Ch. 95) Lenck and others (5 Eq. 69) Los (11 Jur. N. S. 661) Martin (2 H. M. C69) Mitchell (5 Ch. 400) Smith (3 Ch. 125) Swan (10 Eq. 675) Bank of Hindustan, &c, v. Eastern Financial Association . . 710 Bank of Ireland v. Evans's Charity Trustees . 198, 224, 483, 486 V. Perry . . . . 727 Bank of London, &c., Insurance Asaociation 114, 617 Part (10 Eq. 622) PAGE National, &c., Brnk of London and Association Muggeridge (10 Eq. 443) Bank of London v. Tyrell 348, 357, 361 i!iil V. Bathuno South Wales 910 Bank of Montr Bank of Now Owston 210 Bank of Scotland v. Fenwick . . 295 Hank of South Australia v. Abra- hams 192 Bank of Turkey v. Ottoman Co. . 372 Banks v. Parker . . . . 569 Bannatyne v. Direct Spanish Tel. Co. . . 397, 403, 406, 435, 602 Banner v. Johnston . . 698, 727 Banquo Jacques Cartier v. La Banquo, &c., de Montreal Ban wen Iron Co. v. Barnett 111, 205 129, 422 Barangah Oil Refining Co. Arnot (36 Ch. D. 702) Barber's case (1 De G. & S. 726) . 687 (5 Ch. D. 963) . . 793, 795 Barber, ex parte (1 Mac. & G. 176) 623, 646*, 662, 663, 684 re (15 Jur. 51; ... 16 Barber & Co 230,729 Agra Bank (9 Eq. 725) Barclay's case . 66, 133, 464, 468, 487, 619, 621, 622, 799 Barclay v. Wainwright . . 545 Bardwell v. Sheffield Waterworks Co 431, 432 Bargate v. Shjrtridge . 52, 56*, 299, 423, 466, 560 Barge's case . . . 744, 786 Baring v. Corrie . . . 500 Barker v. Allan . . 201, 243, 522 V. Buttress . . . 640 V. Lyndon . . . .145 V. Stead 145 Barnod's Banking Co. . . 692, 705 Andrew (3 Ch. 161) Andrews (4 Eq. 458) Contract Corporation (2 Ch. 350) (3 Ch. 105) Coupland (8 Eq. 472) (5 Ch. 167) Forwood (5 Ch. 18) Helbert v. Banner (L. R. 5 H. L. 28) (6 Eq. 509) Joint Stock Discount Co. (19 Eq. 1) (10 Ch. 198) Kellock (3 Ch. 769) Leech (6 Ch. 388) Peel (2 Ch. 674) Shrapnell (M.R. 24 April, 1867) Thornton (2 Ch. 171) Earned f. Hamilton . . .493 Barnes v. Addy . . . . 362 V. Thrupp .... 672 Barnet v. North Metropolitan Junction Railway Co. Nicholay's case (15 Jur. 420) Bamett's case (18 Eq. 507) . 521, 841 (19 Eq. 449) . . .742 Barnett, Hoares k Co. v. Smith . 483 i AUTHORITIES REFERRED TO. 3tXV PAGE V. South 154, Kil, 13S 206, 218* Barnctt v. Lambert . 143, 145, 606 Ikrnewall r. Sutherland . . 268, 260 IJamett, Hoarcs & Co. London Trams Co. Works, 798 688 386 Bajon de Bevillc's case Raron Liubig's Cocoa Limited Baroness AVenlock v. Rivvr Dee Co. . . . 11 "i, 238 Barrett's case (3 De G. J. & Sm. 30) . . 16, 80, 82*, 213, 214, 762 (4 De G. J. & S.n. 416) 40, 742, 801, 803, 839 Barrett r. Biunt .... 145 BaiTOw's case (14 Ci,. D. 432) 64, 369, 785, 787, 789 (3 Ch. 784) . . . . 847 Barrow-in-Furne.ss Investment Co. 785 Barrow Haematite Steel Co. . 403 Barry r. Croskey . . . 2KS*, 488 V. Navan and King's County Railway Co. . . . . Barry Railway Co. Barry's representatives, ex parte . Bartlett v. Pentland . Bartley, ex parte . . . . Barton's case . 322, 528, 629, 534, 761* tmst . . . 545, 546 Barton v. Hutchinson . . 149, 262 V. London and North-West- ern Railway Co. . . . 483 V. North Staffordshire Rail- way Co 4S3 Barwick v. English Juint Stock Bank .... 2U7, 214, 217* Bass's case .... 703, 708 Bastenne Bitumen Co. . . 652* Bastow & Co. . . 676, 677 Batard v. Hawes . . . 606 Bateman v. Mayor of A.shton-under- Lyne . . . 186,199,598 f. Mid Wales Railwiiv C... . 186 u Service *. 115, !»0y, 912, 914 Bates V. Mackinley . . . 647 Bath's case . 196, 319, 374, 5V1, 842, 845, 856 517 904 860 294 861 Batten •. Vredgewood Coal Co. , 865 Batty V JlcCundie , 284 B.ixter V. Earl of Portsmouth . 40 Bavley r. Manchester f.nd Sheffield Rail\ ay Co. 209 r. Wilkins . 513* Bayliffe V. Butterworth . . 513* Bear r. Bromley . , 117 Beardshaw, ex parte 766 , 861 V. Londesborough 670 , 706 Bcattie v. Lord Ebury 196, 242, 805, 806 Beaujolais Wine Co. . . . 887 Beaumont i'. Meredith . . . 575 Beavan v. McDonnell ... 40 Beck's case 17, 25, 26, 769, 773, 774 B( ck f. Dean 560 V. Kantorowicz . 346, 352*, 666 Beckitt V. Bilbrough . 473, 499 Bedfevd r. Bagshaw . . 88, 496 Bedford Railway Co. v. Stanley . 151 Beech v. Eyre . Beeching v. Lloyd Beer v. London and Paris Hote PAGE 266 568 228 192 424 Beldon r. Campbill Belfast, &c. Railway Co. v. Strangi Belhaven's (Lord) case . 521, 842, 845 Bell's case (4 App. Cas. 550) 42, 80*, 86, 733, 802, 808, 809, 810 (22 Beav. 35) . . 80*, 86 Bell V. Francis V. London and North- West em Railway Co. V. Mexborough . r. Reid . Bell and Lang's case (4 App. Ca 547) Bellairs v. Tucker Beman v. Rufford 145 183 589* 37 580* Bendy v. Harding . Bcnham's case Bennett's case . 297. Bennett v. Blain . Benson v. Paull .lent 1'. Young . Bcutham Mills Spinning Co Bentinck (Cavendish) v. Fenn Bentley, ex parte r. Bates . V. Craven . Bercsford's case Berkeley v. Standard Discount Co. 758 . 69, 89* 183, 322, 571, 598, 892, 893 . . 295 . 840 377, 519, 839 . 452 . 280, 603 . 913 459, 468, 538, 552 369 . 785 . 550 . 360 29, 843 265, 595 Bermingham v. Sheridan 466, 491, 4!t3, 499, 505, 511 UCi-nard's case . 82*, 84, 759, 860 Berne (Tho City of) v. Bank of England .... Lesley, ex parte . 623, 693, /oo, 766 Bessemer Steel and Ordnance Co. 711 Best's case (2 De G. J. & Sm. 650) 14, 16, 769 Best, ex parU (1 Sim. N. S. 193) 747 V. Pembroke . . .697 Betts V. De Vitre . . 209, 240, 265 Beulah Park Estate Sargood (15 r.4. 43) Bevan v. Waterhouse . . . 544 Beverley v. The Lincoln Gas Co. . 222 Beville's case (Baron de) . . 798 Biederman v. Stone . 494, 501, 514 Bigg's case (1 Eq. 309) . . 533, 844 Bigge's case (6 Jur. N. S. 7) 82, 84*, 215 Bignold, ex parte 174. 381, 382, 387*, 389, 594, 851 Bill V. Darenth, &c., Railway Co. 332 V.Richards. . . . 284* r. Sierra Nevada, &c., Co. 324, 601, 913 Bilton Hotel Co. . 792, 793 Birch's case . 59, 60, 94, 256, 524, 748, 840 Birch Torr & Vitifer Co. . . Lawton (1 K. k J. 204) if! XXVI AUTHORITIES REFERRED TO. PAOK Bird's case (4 De G. J. & Sm. 200) 16, 761, 769, 791, 796 (1 Sim. N. S. 47) 111, 129, 761, 862 Bird V. Bird's Patent Sewage Co. 894 Birkbeck Life Assurance Co. ]5arry (representatives of), (2 Dr. & Sm. 321) Birkenhead, Lancashire, &c. , Rail. Co. V. Brownrigg . 59, 10.'), 426 y. Coteswortli . 426, 427 i'. Pilcher . . .39, 422 c. Webster . . . . 416 Birmingham Banking Co. (3 Ch. 651) .... 156, 175, 881 (6 Ch. 83) . . . . 669 15iiininghnm, Bristol, &c.. Railway Co. V. Locke . 19, 51, 58, 106, 421, 533, 534 ■ V. White . . . . 440 Birmingham and Lichfield Rail- way Co. (18 Ch. D. 155) . . 279 (-28 Ch. D. 652) . . 102, 904 Bishop's case . . . 825, 828 lilack V. Homersham . . 490, 493 lilack & Co.'s case , 742, 744, 754, 858, 885 Blackburn's case . 20, 25, 84, 749, 772 lilackburn Benefit Building Society 872 r. Cunliffe, Brooks & Co. . 176, 178, 187, 189, 190*, 191, 237*, 386, 919 Blain v. Agar .... 593 Blake v. Mowatt . .592 Blake's case . . . 81*, 842 Blakelcy's executoi-s, ex parte . 537, 812,848 Blakely Ordnance Co. . . . 741* Brett (8 Ch. 800) (6 Ch. 800) Creyke (5 Ch. 63) Lumsden (4 Ch. 31) Metropolitan and Provincial Banks (8 Eq. 244) New Zealand Banking Co. (3 Ch. 154) Ncedham (4 Eq. 135) Stockcu (3 Ch. 412) (5 Eq. 6) Blanu u. Bell .... Bleaokley's case Blewitt V. Gordon Bligh V. Brent Blissct V. Daniel Blood, ex parte Bloomer y. Union, &c.. Coal Cn Blyth's oase Blyth & Co.'s case . Bodrain United Mines, PAOt . 783, 787 . . 761 94, 95, 624, 715, 749, 840 U. J. & 542 . 733 . 266 452, 453 318, 532 . 735 192 426, 544 S. 15, 770 691, 692 421 497, 592, 697 V. Metropolitan Railway Co. 430, 432, 442, 668, 571, 580, 697 Bluck V. Mallaluo . 328, 388, 572, 686, 697, 600 Blundell, re .... 361 V. Winsor . 2, 131, 132*, 133* Blount V. Hipkins Bloxam's case (4 De 447) (36 L. J. Ch. 687) Bloxam v. Metropolitan Cab Co, Bog Lead Mining Co. o. Montague 119 Bolckow, Vaughan & Co. v. Fisher Bolingbroke (Lord). v. Local Board of Swindon .... Bologiiesi'.s case . . . . Bolton Benefit Loan Society 628, 648* Coop V. Booth (12 Ch. U. 679) Bolton V. Madden . . . , Bonar v. Mitchell Bonelli's Telegraph Co. . . . Collie (12 Eq. 246) Booker, ex parte Booth V. Bank of England . . Borough of Hackney Newspaper Co. (3 Ch. D. 669) . Borough of St. Marylebone . . Buck (3 De G. & Sm. 267) Joint Stock Banking Co. Stanhope (3 De G. & Sm. 198) Bosauquet v. Graham . 283, 295 V. Ransford . . . V. Shortridge . 66*, 69, 110, 158, 288, 289, 423 V. Woodford . . . . 110 Boston Deep Sea Fishing Co. v. Ansell . . . 147, 149, 367 Boston, Newark, and Sheffield Railway Co. . . . . Williams (1 Sim. N. S. 67) Boswell V. Gurney . . .721 Bosworthon Mining Co. . 619, 646*, 664*, 659 Jones (6 Ch. 48) Bottomley's case. 157*, 409, 632, 843 Bottomley v. Fisher . . . 23S* Bouch V. Sevenoaks Railway Co. 43t) 45, 129 i>% 2(10 881 620, 309 109 200 136 m 297 286 V. Sproule . Boulter v. Peplow . Boulton, ex parte Boumo V. Freeth . Bousfield V. Wilson Boussmaker, ex parte Bowen v. Brecon, ic, Bowen & Martin's case Bowes V. Hope Mutual surance Co. Bowlby V. Bell . Bowring v. Shepherd 393, 546*, m . . 606 . 2116 . 21, 144, 393 140, 488, 516 . . 37* Rail. Co. IW . 767 Life As- . . 638 463, 498, 513 . 490,601,606, 610 Bowron, Baily k Co. Baily (5 Eq. 428) Box, re . . . . . 644 Boyce v. Green . . . .453 Boyle V. Bethos Llantwit Coll. Co. 676, 677, 706, 883 Brackenbury v. Brackenbury . 140 Bradford Banking Co. v. Briggs & Co. . . 129, 459*, 477, 478 Navigation Co. . 618, 647*, 6.58, 662 Tramways Co. . .102, 904 AUTHORITIES REFERRED TO. xxvn PAGE 783 787 , 761 5, 524, 715, 749 840 ague 45, 119 129 .sher r)95 oai'd . 209 . 881 , 620, 628, 648* 679) , 309 ■ 109 200 136 >9, 532, 843 233* r'Co. m , 545», M m , 2115 1,144 393 10, 488 516 , , 37* Co. 194 ^ 767 As- . 638 3, 498 ,S13 „ 501, 606, 610 644 . 453 Co, 676, ■, 706 883 140 iggs ►,477 ,478 647», 658, 662 . 102 ,904 |Bra(Uoy v. Eyre . — I!. Houldsworth . — V. Warburg . [Bradshaw, ex parte JBrahamp. Beachim j Bruinah v. Roberts h5rnmpton V. Longtown PAGE 283, 286, 295, 297 463 . . 295 192, 197, 665 . . 113 156, 185, 244 Rail. Co. 746, 904 Addison (20 Eq. 620) Shaw (10 Ch. 177) [Braiulcr i'. Brander . . . 545 iBrunlcv v. South-Eastern Railway 'co. 913 I Breckeiiridgo's case . 122, 125, 748 I Breceh Loading Armoury Co. (4 Ell. 453) 690 Calisher (5 Eq. 214) llercliants' Co. (4 Eq. 453) Wragge (5 Eq. 284) iBrenineri). Cliamberlayno . . 145 [Brentford and Islewortli Tram- ways Co. . . 278, 018, 905 i Bientwood Brick and Coal Co. . 727 Brereton v. Edwards . . . 461 [Brett's case (6 Ch. 800; 7 Cli. 200 ; and 8 Ch. 800) 8-Jl, 856, 857, 867* I (25 Ch. D. 283) . 792, 793, 795 Brettell v. Dawes . . 699, 670 Bridger's ease (4 Ch. 266) . 534, 845 — (5 Ch. 304) . . .782 [ Bridgwater Navigation Co. . 396, 405, 434, 455, 679, 681, 717, 721, 868*, 869, 870, 880, 960, 966 I Bridport Old Brewery Co. . . 306, 307, 877*, 879, 887 iBriggs, ex parte {I Eq. 483) . 26, 28, 85 1 (8W. R. 110) . . .722 • Briglit's case .... 765, 766 Bright V. Hutton 144, 623, 626, 764, 765*, 766, 901 Brighton Arcade Co. v. Dowling . 428, 744, 748, 884, 885 — Club and Norfolk Hotel Co. 638, 686 — Hotel Co. . . 636, 652* — Lewes, &c. , Railway Co. . 656 Conway (5 De G. & Sm. 150) Hirschel, ex jiarte (15 Jur. 942) Bristed v. Wilkins . . 460, 462 Bristol and North Somerset Rail- way Co 905, 906 Bristol and Taunton, &c. , Co. v. Amos ..... 57 Britannia Mills Co. ... 1029 British Alkali Co. Guest(5D9G. & Sm. 458) I British Alliance Assurance Corpo- ration .... 634, 635 British and American Steam Navi- gation Co. . . . . . Goldsmid (16 Beav. 262) Meyer (16 Beav. 383) Pearse (8 Eq. 606) Ward (10 Eq. 659) British and American Telegraph Co. V. Albion Bank . . 200, 206 'AOE 14 226 1022 693 196 209, 486 British and American Telegraph Co. V. Col son .... Fowler (14 Eq. 316) British Empire Co. v. Browne British Farmers' Pure Linseed Cake Co. ... 64, 395, British and Foreign Cork Co. Leifchild (1 Eq. 231) British Guardian Life Assurance Co. ... 694, 69.'., British Imperial Corporation . 749, BritLsh India Steam Navigation Co. V. Commissioners of Inland Revenue ..... British Mutual Banking Co. v. Charuwood Forest Railway Co. . 217*, 48t, British Nation, &o.. Association, ex parte the Liquidators of (8 Ch. D. 679) . 43, 183, 207, 806, 807 British Nation Life Assurance Association (14 Eq. 492) . 703, 878, 879, 890 British Provident Life and Fire Assurance Co. . . 641, 653* Coleman (1 De G. J. & S. 495) Collins(lDr. &Sm. 113) De Ruvignc (5 Ch. D. 306) Grady (1 De G. J. & S. 489) Lane (1 De G. J. & S. .504) Orpen (9 Jur. N. S. 615) Runiney (4 N. R. 48) Stanley (4 De G. J. & S. 407) Teete (4 N. R. 48) British Provident Assurance So- ciety V. Norton . 313, 328, :3S2 British Provident and Anglo- Aus- tralian Assurance Cos. . . 735 British Seamless Papir Box Co. 370, 695 British Sugar Co. . 61, 62, 122, 306, 415 British Waggon Co. v. Lea k Co. . 708, 729 Briton Life Association . 857, 898 Briton Medical Assurance Associa- tion 674, 676 Briton Medical and General Life Association Brittain. ex parte . Broadbent, ex parte Brockwell's case 79*, 80* Bromley v. Williams Bromsdon v. Winter . Brooke & Co. (G. F.) . Brotherhood's case, 179, 518, 519*, ,".22, 584, 822 126, 940, 955 . 765, 862 . 5.50 82, 86, 87, 861 566 541 . 660 Broughton v. Hutt . V. Manchester Waterworks Co. Brown's case (9 Ch. (19 Beav. 97) . . 813 and Salford 136, 18.5. 22(1 102) 788*, 792, 793, 794* 316, 758, 831, 841* Brown's claim (9 W. R. 366, & 10 ib. 662) . . 180, 237*, 735 Brown, Ex parte (3 De G. & Sm. 590) 555 / XXVIU AUTHORITIES REFERRED TO. PAGE Brown, ex parte (12 Ch. 823) . 736, 742 (8 De G. M. & G. 607) . 839 Bayley & Dixon (18 Ch. D. 649) 680 ■ V. Andrews . . • 156 V. Black . . .509% 511 V. Byers . . 135, 192, 244 V. Dale 867 V. Hall .... 513 V. Holt 132 V, London and North- We.stern Railway Co. . 38 V. Savage .... 205 Browie V. Collins . . 430, 544, 545 V. La Trinidad . 148, 157, 158, 176, 302, 305, 567, 602, 792 V. Monmouthshire, &c., Co. 430, 572, 600 Brcvnlie v. Campbell . . 70, 241 V. RusseU . . 524, 872, 918, 920 Browning v. Great Central Mining Co, . . 149*, 160* Brumfitt V. Bremner . . .173 Brunton's claim . . . 740, 741 Bryou v. Metropolitan Saloon Omnibus Co. 190, 191*, 317, 398, 406, 600 V. Warwick and Birming- ham Railway Co. . . 372, 571 Buchan's case 426, 549, 538, 806, 814 Buck c. Buck . 131, 140, 487, 616 r. Robson . . . 813, 848 Budd',s case . . . 826*, 864 Buddt-n, ex parte . . 553, 815, 816 Buenos Ayres Railway Co. r. North Railway Co. of Buenos Ayres 912 Bugg, ex parte 46, 746. 802*, 805, 860 Bulkcley v. Schutz . . 115, 912 Bullock V. Caird . .910 r. Chapman . . 60, 61, 596 Bulmer's case . . . 813, 814 Buhner v, Norris . . . 452 Bult V. Morell . . 185, 231, 232* Bunn, ex parte (3 Jur. N. S. 1013) 690 Bunn's case (2 De G. F. & J. 275) . . .17, 201, 759, 781* Burge, tx parte (1 De G. & S. 588) .... 617, 901 Surge's case (2 J. & H. 441) 178, 180, 199, 236, 864 Burgess's case (15 Ch. D, 507) 755*, 776, 777 Burke v. Dublin Trunk Railway Co. . 2'.)1, 292, 296 r. Lechmere . . 19, 106 Burkinshaw v. NicoUs 64, 396, 783, 785, 787 Burlinson's case . 42 808 Burinester v, Croftou . 296 V. Norris . . 192 V. \'oii Stentz 268 Bumos V. Pennell 2'J, 49*, 51, 84, 87, 88, 154*, 155, 161, 206, 215*, 217*, 298, 421, 433 Burns v, Poulsom . . . , 209 PAOIS Bumside v. Dayrell . . 35, 145 Burstall v. Beyfus . . . . Ui Burt V, British Nation Assurance Co 520, 568, m- Burton, exjiarte .... 17' v. Tannahill . . . 266, iv. Bush's case (6 Ch. 246 and L. R. 6 Ho. Lo. 37) 52, 316, 466, 7l!t, 758, 822, 824, 832, U\ (9 Ch. 554) .... ;>:] Busk's case . . . 518, Sli Butchart v. Dresser . . . 3i; Butler V. Cumpston . . 805, 80i- V. Manchester and Sheffield Railway Co. . . . 209 V. Withers . . . 45'} Butt V. Monteaux 135, 139, 565, 593. 912 Bwlchy Plwm Lead Mining Co. V. Baynes 422 Byrne v. Van Tienhoven . . 1) Cadiz Waterworks Co. v. Barnctt 63i Cadman v. Cadman . . .541 Caerphilly Colliery Co. Pearson (5 Ch. D. 336) Caillaud's, &c., Co. v. Caillaud . 2']! Calcutta Jute Mills Co. v. Nichol- son 38, 911 Caldecott, ex parte . 458, 550, 555 Calder, &c., Nav. Co. v. Pilling 308, 322 Caldicott V. Grifliths . . . dO'i Caldow V. Pixell .... VA Caldwell v. Ernest . . .712 Caledonian and Dumbartonshire Railway Co. v. Magistrat&s of Helensburgh . . .151 152 Calisher"s case .... 742, 744 Callao Bis Co m Calthrop, re 550 Cambrian Mining Co. . 690 Railway Co. . . 904, 905, 900 Coleman (3 De G. & S. 139) Steam Packet Co. . . . (Ifi Cambridge and Colchester Rail- way Co. Marsh (1 M. k G. 302) Cameron Coalbrook, &c., Co. 692 840 Bennett (5 De G. M. & G. 284) Hunt (32 Beav. 387) Walter (3 De G. & S. 2) CampbeU's case (9 Ch. 1) 53, 344, 'It: (4 Ch. D. 470) 197, 369, 401, 475, 861 Campbell v. Compagnie Generate de Bellegarde . 675, 677 r. London and Brighton Railway Co. . . . 399 V. Maund . . . .311 Canadian Land Reclaiming, &c., Co. CoTentry & Dixon (14 Ch. D. 660) nadian N| Fox (5 nadian Ol Hay (ir le V. Chal ann v. Will Itinnan's cla nuck o. Harrisoi tnnon, ex Tra 11, M pe Hretonl tv. 7 95) (19 C i\ Fenr kpe's Execil foci k Co ftiou Co. . kpital Fire [tion (21 CI \— (24 Ch. fcpper, C.C I i 17? ^ — (3 Do G Oipper's case &,r V. Griffit' ,;0^rd v. Carr •jt — !'. Hope fjjJarden v. Ge .rdiffandC Gledhill irdifl' Coal ( V. Norto arew's case 94) - (7 De ( arew's claim rew's Esta (31 Beav. 3 argill V. Bov Caribbean Co Crick mei Darlon r. Ih'v parting's case Earlislo Bank Carlisle r, So Co. tarmarthen E Darniichael's uarnelley, ex 3ariiL'ntcr's a Darr v. GrifEi V. Lnnd ern Railwa jarr's case Carnilli ami Ch. 174) Carriage C'o-( sociation Clemeno( Earriek's case AUTHORITIES REFERRED TO. XXIX 36,1411 . . 362 \ ii'anco !0, 568, 584* • 779 ■•1 . 266, 26i ^ L. R. 16, 466, 7J!), 124, 832, 841 . 7>3 518, 810 . . 3i; 805, m effieia . . 2u;i . 45'} 39, 565, 593. 912 g Co. . . 422 U 151, 15i 742, Hi . 89t . 55(' . 69(' [, 905, 90ij 89) . 71' !ail- 692, &ti G. 344, 736, 77i 401, 475, 861 ale 675, 677 itou . 399 . 311 kc, Ch. PAGE aadian Native Oil Co Fox (5 Eq. 118) aadian Oil Works Corporation. Hay (10 Ch. 593) ae V. Cliapmnn . . . . 280 Will V. Willson . . .70, 89 itnnan's claim . . • • 703 mock and Kngdey Colliery fCo. Harrison (28 Ch. D. 363). fcnnon, ex ,mie . 366, 389, 736, 742 V. Trask . . . 304, 309 kmvcll, ex2>nrt€ . . 550, 556, 848 kpe Breton Mining Co. (29 Ch. [D. 795) . . . 346, 350, 358* (19 Ch. D. 77) . . 695, 815 V. Fenn . . . . 708 Ipe's Executor's case . . 254, 823* Ipel & Co. V. Sim's Composi- ftionCo 92 Ipital Fire Insurance Associa- ftion (21 Ch. D. 209) . 628, 649* (24 Ch. D. 408) . . 668, 692 .'fiapper, c.c parte (1 Sim. N. S. ,1 178) . . 765,766,861 is — (3 De G. & S. 1) 626, 627, 653 6ipper's case (3 Ch. 458) 123. 810, 828 Car I'. Griffith .... 10 ;Oard v. Carr .... 156, 922 !'. Hope .... 309 jden V. General Cemetery Co. 146, 363 jCardiiF and Cata-philly Iron Co. Gledhill (3 De G. F. & J. 713) ardiff Coal Co. . . 414,787,864 V. Norton 278, 414, 694, 787, 854 arew's case (5 De G. M. & G. 94) 664 (7 De G. M. & G. 43) 818, 851 arew's claim (24 Ch. D. 85) 171, 193 SJarew's Estate Act (No. 2), re (31 Beav. 39) . . . .204 irgill V. Rower . . .74, 89, 244 tJaribbean Co. Crick iner (10 Ch. 614) ::ailon r. Drury . . 245, 575*, 600 Calling's case . 368, 781, 782, 788, 790, 795 Darlislo Banking Co. v. Thompson 920 Carlisle i\ South-Eastern Railway Co. . . 571, 574*, 580, 597 panuarthen Railway Co. D.Wright 45, 46, 50, 59, 107, 420, 421 Carmichaers case . 15, 163, 7C7, 770 Carnelley, «■ jiwWe . . . . 674 "Jariit'iitcr's and Weiss's case . 693 irr V. GrifBta . . 462, 546, 547 V. London and North- West- ern Railway Co. . . 48, 487 L/ari's case .' . . . . 734 Carralli ami Haggard's claim (4 Ch. 174) .... 557, 743 Carriage Co-operative Supply As- sociation . 367, 375, 376, 679, 696, 697, 744, 786, 790 Clenience (23 Ch. D. 154) (arrick's case .... 765, 766 PAOE Carroll v. Kennedy . . . 671 Carron Co. v. Maelaren . . 37, 912* Carshore v. North- Eastern Rail- way Co 483 Carta Para Mining Co. . . . 661 Carter's case .... 696 Carter v. Dean of Ely . . 220, 221 Cartmell's case . 156, 161, 178, 467, 518, 522, 829 Castellan v. Hobsou . . 509, 511 Castello's ca.se . . .811, 828 Catchpole v. Ainbergato, &c.. Railway Co. . . .63, 534 Cathcart, re .... 691 Catholic Publishing Co. 385, 637, 638, 648* Cavendish Benliuck v. Fenn . 358, 695 Cefn Cileeu Mining Co. Central Darjceling Tea Co. . . Cercle Restaurant Castiglione Co. V. Lavery Cesena Sulpliur Co. r 191 710 Nicholson Chadwick, ex parte . Chalk, Webl) & Co. r Challis's case Chambers v. Manchester, Railway Co. Chancey v. Jlay . Chaudelor v. Lopus Chandler i'. Howell 637 38, ,11 . 693, 705 Tennent . 848 53, 759, 775* &c., . 198, 235 566 . . 70 . 451 Chapman and Barker's case Chapman's case (1 Eq. 346) (2 Eq. 567) Chapman v. JMilvaiu V. Slu'plicid ChappoU's case Chappie's ca.se Cliapple J'. Cadell . Charitable Corporation i; Charleswdith, ex parte Chapel House Colliery Co. . 636, 648 Chapleo v. Brunswick Building Society . 88, 166*, 171, 176, 189, 196, 242, 919, 920 754, 782, 805*, 806 685, 717, 730 . 13, 14, 15, 567, 795 268, 427, 565 49;i, 514, 832 4ii5, 824, c'29 . 556 . 20', 208 Sutton . 372 . 698, 702, 703, 878, 890 Charlton v. Newcastle and Carlisle Railway Co. . 322, 571, Chatham Industrial Co-operative Society Chatteris, ex parte Chartres' case . . .831, Cheale r. Kenward . 47y, Cheltenham and .Swansea Railway Carriage, &c., Co. (8 Ecp 580)". Cheltenham, &c., Railway Co. v. Daniel . 49*, 51, 108, 421 V. Price . . . 59, 105, 106 Chepstow Bobbin Mills Co. . 600, 887 Cherry v. Colonial Bank of Ans- tralusia . . .89, 243 Cheshire Banking Co. Duff's Executors (32 Ch. D, 301) 598, 892 916 687 862 492 656 XXX AUTHORITIES REFERRED TO. 551 513 311 307 741 269 TAOE Clu'shire Patent Salt Co. . . 626 Chester and Manchester Direct Railway Co. Philiipps (1 Simons, N. S. 605) Child V. Hudson's Bay Co. . V. Morley . . . . Chillinfjton Iron Co. . China Steamship Co. Capi)er (3 Ch. 458) Dawes (6 Eq. 232) Dnimmond (4 Ch. 772) Mackenzie (7 Eq. 240) China (Imperial Bank oQ v. Bank of Hindustan . . . . Chinuoek's ease (Johns. 714) 803, 826* Chiiipendalc, ex park . 236, 881, 384, 385, 387*, 389, 622, 851, 858, 860 Chorlcy, ex parte . . 283, Christie v. I'enrt . . . . Church and Empire lire Insur- ance Co. Andrews (8 Ch. D. 126) Pasin and Gill (6 Ch. D. 631) Church r. The Imperial Gas Light Co 222 Churchill r. Bank of England . 460 Chynoweth's case . 95, 326, 465, 819, 825, 828 Cilfoden Benefit Building Society 700 City Bank, ea; parte 171, 185, 230, 740 City and County Bank . 626, 640, 641, 653*, 655 City and County Investment Co. 208, 864, 895, 896 City of Berne v. Bank of England 909 Cit" of Ola-sgow Bank . . .962 Bell, Lang and others (4 App. 547) Buchan (4 App. 549) Ker (4 A])p. 549) Mitchell (4 App. 548) Rutherford (4 Aiip. 548) Terminus Hotel Co. South-Kastern Railway Co. (14 Eq. 10) City of Moscow Gas Co. v. Inter- national Financial Society . 263 Clack's case .... 829, 840 Clark V. Newsam . . . . 66 e.r parte (7 Eq. 550) 715, 731, 743, 865 Clarke v. Cluiplin ... 30 — V. Dickson . . 72, 88, 496 Impprial Gas Li»ht and . 168* (W. ^. 1866, 254) . 710 .V > 'aj) . . 664, 860 ii,) . . 783, 784* i J. Ch. 14) . 766 . 901 ^ !60) . . . 547 . 177, 183, 272, 322, 323, 567, 892 . 271 . . 716 . 682 746, 784, 789 Citv 'lai'i ■ V. 'i Oh ' • ■ '■ PC: ;(■" Clay V. Rutlbrd V. Southern Clearo v. Harwas . Clegg V. Edmondson Cleland's case . l'Af;E ! Clenience, eo; ^)«r<(j (23 Ch. D. 154) 6"S Clement's case (13 Eq. 179) . 691, 692 | Clements v. Bowes . 565, 569, 593, 610 V. Hall . . . .582 V. Todd ,33' Clemonston v. Blessig ... 37 Cleve V. Financial Corporation . 306, 877, 894 Cleveland Ironworks Co. v. Ste- venson 72 j Clifton's case . . . 664, 863 Clinan v. Cooke . . . . 22S Clinch V. Financial Corporation . 208, 571, 580, 581, 595, 891, 892, 894, 895 Clivc V. Clive . 644, 545, 54" Clothworkers' Co., ex parte . 653, 554 Clough r. London and North A\'estern Railway Co. . . 584 C;lowes V. Brettell . 69, 288, 293, 294 Cluff V. Cluir 461 Coal Consumers' Association 679, 680, 717, 720, 721 Coal Economising Gas Co. Gover (20 Eq. 114, and 1 Ch. D. 182) Coates' case .... 783—785 Coates !'. Nottingham W. W. Co. 401 Cobham v. Holcombe . . .267 Cobre Copper Mining Co. Kelk (9 Eq. 107) Pahlen (9 Eq. 107) Weston (6 Eq. 17) Cockburn's case . . 518, 840, 862 Cocker's case . . ... 260' Cockerell v. Van Diemen's Land Co 499, 532 Coe V. Wise 209 Cohen v. Wilkinson . . 571, 598 Colbome and Strawbridge, exparte 171, 230, 665, 725, 740, 878, 889 Colchester (Mavor of) v. Lowten . 198, 207, 224 Cole V. North Western Bank . 47,'i Coleman's case (1 De G. J. & Sm. 495) . 53, 75P, 781*, 841, 844, 845 Coleman, ex parte (3 De J. & S. 139) .... 664, 701 Coles V. Bristowe . 495, 501, 504*, 510 V. Trecothick . . . . 226 Collcn V. Wright . . . .241 Collie's claim m Collingridge, ty/ja?/*- . . .613 Collingwood v. Berkeley . . H.'i Collins 1'. Collins . . 450, 541 ?'. South Staffordshire Rail- way Co 22s , ca!;;ar<« (De G. 381) . . 5f)0 (8 W. R. 170) . . . 653* Collum, ex parte . . 66, 800, 843 Colnian v. Eastern Counties Rail- way Co. . . . 200, 571, 597 Colombia Chemical Factory Ma- nure, &c.. Works Brett (25 Ch. D. 283) Hewitt ^25 Ch. D. 283) Colonial Bank v. Hepworth 474, 482* V. Whinney . . 464*, 651 PAGE 1 154) 679 . 691, 692 9, 593, 610 , 582 , , ,33' . 3? 11 306, 877, 894 Ste- , , 72 664 863 , 22S on . 208, 92, 894 895 44, 545 547 . 553 564 ^Torth . 584 88, 293 ,294 , , 451 679, 680, 17, 720 ,721 ICh. . 783- -78i r. Co. 401 , 267 18, 840, 862 . . 260' 1 Land 499, 532 209 ■ 571, 598 parte 40, 878, 889 ften . 198, 207, 224 47;i . Sill. H, 844, 845 & S. 664 701 , 504* 510 228 241 , 1,58 613 145 45(1 ,641 {ail- . 228 ] 550 . 653* 5, 800 , 843 lail- 0,571 ,597 Ma- 474, 482* 464*, 651 AUTHORITIES REFEBRED TO. XXXI I'AOE 882 113 911 . 453 . . 593 201 600, 586, 587 689 Icolonial and General Co. . . Icoloniftl Life Assurance Co. r. Home and Colonial A.ssurance , Co. . . • • . • IColonial Trusts Corporation I Bradshaw (15 Ch. D. 466) I Colquhoun V. Brooks . I Colt v. Ncttervill _ V. Woollaston . . ■ IColtman, re • • I Coluinbino v. Chichester I Colyear v. Mulgravc . . . I Commercial Bank Corporation of India and the East . 261, 622, 710, 734 Fernandes' Executors (5 Ch. 314) Gledstane & Co. (1 Ch. 638) Smith, Fleming & Co. (1 Ch. 538) Wilson (8 Eq. 240) t'oniinercial Bank of London Commercial Bank of South Aus- traUa . 622, 623, 636, 644*, 912 Commercial Discount Co. . 660, 701 I Commercial and General Life, &c., .lolmson (27 L. J. Ch. 803) [commercial, &c., Wine Co. . . 692 Compagnic Gen^rale de Bellegarde Campbell (4 Ch. D. 470) Connell, re . Connoi) V, Levy Conquest's case . . . I Consols Insurance Association Benham ^13 W. R. 483). GlanviUe (10 E(j. 479) — V. Newall — V, Wood I Const V. Harris 661 848 284 260* 472 713 . 317, 318, 319, 320*, 579* and Alexandra 714 450 626 Crook's claim (2) . policy Cook V. Gregsou . V. Jonos V. Ward Cooke V. Tonkin V. Oceanic Steam Co. ex parte (3 De G. & S, I Constantinople Hotel Co. Ebbett (5 Ch. 302) Eeidpath (11 Eq. 86) Consterdine v. Consterdinc Continental Bank . Castello (8 Eq. 504) Contract Corporation . 43, 167, 224, 225, 473, 660, 691, 692, 769, 807, 836, 846, 847, 860, 851 Baker (7 Ch. 115) Batoman (1 W. N. 378 and 406) Druitt (14 Eq. 6) Ebbw Vale Co. (5 Ch. 112) Gooch (14 Eq. 454) (8 Ch. 266) (7 Ch. 207) Head (3 Eq. 84) Hudson (12 Eq. 1) Weston (6 Eq. 17) White (3 Eq. 84) Conway's case . . . 15, 861 Convbeare v. New Brunswick and Canada Railway Co. . 84, 690* Cooch V. Goodman . ... 131 I'AtlH . 865 . . 732 . 541 297 166, 329 . . 145 . 595 148) . 626, 027, 646* Cookney's case . . . . 761 Cookson, ex parte . . 641, 660* Cooper r. Powis . . . .66!) V. Shropshire Union Railway and Canal Co. . 411, 600 V. Webb . . . 665, 593 , ex parU (2 M. D. & D. 1) . 551 (10 Ch. 610) ... 669 Cope V. Thames Haven Co. 221, 225 Cope's case .... 247, 248 Copeland v. North- Eastern Rail- way Co. . . 63, 109, 469 V. Stephens . . . 550 Copin V. Adamsoii . . . . 914 Copper Miners' Co. v. Fox . 199, 220, 222, 224, 225 Corbett r. The General Steam Navigation Co. . . .911 Corder v. The Universal Gas Light Co 296 Cork and Bandon Railway Co. v. Cazenove . . . .39, 422 V. Goode . . 425, 427, 537 Cork Constitution, Limited . 655 Cork Shipping and Mercantile Co. 630 Cork and Youghal Railway Co. (4 Ch. 748) . . 198, 235, 237*, 385, 650, 723 V. Pati-rson 23, 24, 107, 410, 420 Cornell v. May . . . . 91, 92 Corner v. JlaxwcU-Irwin . 270, 559 Cornwall Great Consolidati'd Mining Co 3];5 Cornwall, &c. , Mining Co. ■••. Bennett . . . . 125, 417* Corpe V. Glyn . 278, 279, ^80, 604 Corry v. Londonderry, &c., Co. . 401, 429, 430 Cosmopolitan Life Assurance Co. NickoU (24 Beav. 689) Costello's case (2 Do 0. F. A: J. 302) . . . 800, 825, 826 Cottam V. Eastern Counties Rail- way Co 483 Cotterell's case . . . 301, 790 Cottle, ex ])arte . . . 764, 766 Coulson, ex parte . . ■ ■ j 549 County Life Assurance Co. ] 55, 158, 167 County Marine Insurance Co. Ranee (6 Ch. 104) County Palatine Loan and Dis- count Co. CartmeU (9 Ch. 691) Teasdale (9 Ch. 54) Coupland v. Challis . . . 31, 901 Court Grange Silver Load Mining Co. Sedgwick (2 Jur. N. S. 949) ■ ( V xxxu AUTHORITIES REFBRREP TO. Coventry and Dixon's case PAfiE 694, 695, 794 . . 715 . 230 case 21, 85, 772« Cowan's Estate Cowio V. Sterling Cox's case anil Naylor's (4 K. & J. 308 and 314) . Cox's case (4 Do G. J. & Sm. 53) 46, 59, 96, 802, 803 (3 De G. and S. 180) . . 694 Cox V. Midland Counties Railway Co. . . ... .161 Cragg V. Taylor . . . . 461 Craig V. Pliillips .... 92 Craig's E.xecutor's case 716, 732, 733 Cramer v. Bird . . . 565, 673 Crampton v. Varna Railway Co. 221, 223 Crawford v. North- Eastern Rail. Co 401 Crawley's case . . . . 14 Credit Co 343, 658 Credit Foncier and Jklobilier of England, ex parte (7 Ch. 161) 156, 204, 205 (11 Eq. 356) . . 403, 404 Cree v. Souiervail . . 801, 805 Crellin v. Brook .... 271 V. Calvert 271 Cremetti v. Crom . . 697 Crenver r. Wheal Abraham United Mining Co. Wilson (8 Ch. 45) Creyke's case . 534, 845, 846 Cricknier's case . . . . 784 Cridland v. De Mauley . . 693 Crisp I'. Bunbury . . . . 916 Criterion Gold Mining Co. . . 660 Cromford and High Peak Co. v. Laeey ... 24, 49, 51*, 421 Crook t. Scaford . . . .223 Crooke's Mining and Smelting Co. Oilman (31 Ch. D. -121) Crookhaven Mining Co. (3 Eq. 69) 684, 852, 869, 870, 882, 885 Cropper, ex parte . 385*, 851, 860 Crosfield's case 747, 812, 813, 814, 862 Croskey r. Bank of Wales 407, 568, 593 Cross V. Law . ... 286, 287 Crouch V. Credit Foncier. &c. 230, 474 Crowe V. Crisford . . . 542 Crowley's claim . . 514, 574 Crown and Cushion Loan Fund Society ... .619 Croxton's case (1 De G. M. & G. 600) 824 (5 De G. & S. 432) . . 861 Croysdill, ex parte . . . 618 Crumlin Viaduct, &c. Co. 669, 706, 720 Cruse V. Paine . . 505, 510, 805 Cullen V. O'Meara . . . 1 49 V. Duke of Queensberry . 247, 272 V. Thompson ... 88 Cuming v. Boswell . . . . 545 Gumming «. Prescott . 301, 454, 546, 794 Cunliffe, Brooks & Co. v. Black- bui-n Building Society 190, 196, 386 PAOE Cunningham & Co., Limited Simpson (36 Ch. D. 532) Cnnninghame v. City of Glasgow Bank .... 758, 801 Curling v. Flight . . 64, 96, 492 Currie*3 case . 301, 395, 785, 7^9' 791, 794, 795, 790' Cutteis V. Anchor Insui'ance Co. . 226, 328 Curtis's case (6 Eq. 455) . 591, 749, 810, 828 Curzon, ex parte (3 Drew. 508) . 747 Cutbill V. Kingdom . . 308, 91ii Cutts y. Riddell . . . .560 Da Costa u. Russia Co. . . . fi04 Dails V. Lloyd .... Sic) Dale t'. Hamilton . . . 589 V. Martin . . 321, 989 ex parte (3 De G. & S. 11) . 656 Dale's case (1 Do G. M. & G. 613) 865 Dalton V. Alidland Railway Co. . 436, 437, 483 Daly V. Thompson . . . Gl, 63 Daly & Co 667 Dance v. Girdler . . . . 146 Daniell v. Royal British Bank . 58, 129, 284 M parte (1 De G. & .1. 372) 776, 782*, 789, 8fi5 Daniell's case (22 Beav. 43) . 518, 782, 839 D'Arey v. Tamar, &c. Railway Co. 158, 174, 224, 329 Darlington Banking Co. Riches (5 N. K. 287) Darlington Forge Co. . . 123 Davidson v. Bower . . . . 269 V. Cooper . . . 288, 269 V. Tullock . . 88, 91, 496 ex parte (1 Mon. D. & De Gex, 648) . . . 458, 550, 555 Davidson's case (4 K. & J. 688) . 320 (3 De G. A: Sm. 21) 780, 782, 801, 803, 805 Davies v. Hawkins . . 319, 320 V. London and Provincial Marine Insurance Co. . . . 70 Davies's case (4 De G. F. & J. 78) 769, 770 Davis' case (12 Eq. 516) . 189, 385, 516, 91 H 463) 554, 558 . . 487 . .564 . 506, 510 432, 597 , 843, 878, 639 303, 528, 577 . 715 . . 145 . 24S . . 544 135, 141 698, 849 852, 858 Davis, ex parte (3 Ch. D. V. Bank of England V. Fisk • . V. Haycock . Davison v. Gillies Dawes's case . . 664, Dawkins v. Antrobus Dawson v. Malley V. Morrison . V. Wrench . Day V. Day . ex parte (1 Cli. D. 699) (C Jur. N. S. 1016) . Dayrell, ex parte Dovereii.v )'. Ki Devon and Son AUTHORITIES REFERRED TO. XXXllI PAGE . 3115, 307 •2(53, 915 . . 236 377 831 620, tin, 647* . 203 . . 545 Dean r. nonnett . V. Mt'Uanl . Dcare V. Soiitteii . De IJusschc V. Alt I)e Castro's case I)i;(', ex parte DdlVll r. White . Di- Cifiidra I.'. Kent Pi'lta Syndicnte Koi'vle (30 Cli. D. 153) Dcnilro Valley Railway, ic, Co. Moss (3 De G. & S. 599) Dculmiu & Co. . 321, 371, 374, 375, 376, 518, 6116 Dent's case . . 119, 798, 799 Uciit !•. London Tramways Co. . 432, 436, 597 ULMitnii v. East Aiij,'liau Railway- Co 222 I.. Great Northern Rail. Co. 88 V, Maciieil . . . . 69 1)(. Pass's case 468, 800, 825, 826*. 827 Deposit and (Jcncral Life Assurance Co. Ayre (25 Ucav. 513) Deposit Lite Assurance Co. v. Ayscoiigh .... 422 De Kosaz c. Anf^lo-Italiau Uaiik . 896 Dc Kuvij,'ne's case 367, 696, 789*, 790 Desingo v. Bcaro . . . 541 Devala Piovident Gold Mining Co. 156, 183*, 206 Devenni.v v. Kilkenny Railway Co. 292, 294 Devon and Somerset Railway Co. 618, 692, 905, 906 De Waal r. Adler . . 490, 491 Diamond Fuel Co. (13 Ch. D. 400) 264, 626, 632, 633, 634, 645*, 662 Metcalfe (13 Ch. I). 815) Diokiiison v. Valpy . . 144, 185 DicksDii's case . . . 748, 749 DicksDU i: Evans . . . 739 — - c. Xeath and Brecon Railway Co 282 i: Swansea Vain Railway Co. 741 Difa,'le v. Higfe's .... 139 r. London and Blackwall Railway Co. . .221, 225, 227 Dillon V. Arkins . . . 400, 541 Dimes v. Scott . ... 543* Diinsun's Estate l''iro Clay Co. . 678 Direct Hirniingham, Oxfonl, Reading, and Brighton Railway Co. Ani.sinck (6 Dc G. M. & ((y7i . . .725 FIboks r. Houth-Western Railway Co 470, 584 Field 1'. Lelean . . . . 508 V. Mackenzie 58, 110, 287, 2>S8, 296 Ficldon v. Lancashire, &c. Rail- way Co 596 Financial Coqioration . . 740, 741 Adams (2 Ch. 714) Feiling and Rimington (2 Ch. 714) Holmes (2 Ch. 714) King(2Cii. 7141 Pritchnrd (2 Ch. 714) V. Lawrence . . . 666, SI,") Finlay v. Bristol Railway Co. 220, 227 Finlay & Co., ex parte . . 749, Sfil Finlay Hodgson's ca.se, 26 Beav. 182 799, 804* Firbank's Executors v. Humphreys 88, 241, 243 Fire Annihilator Co. . 640, 646, 986 Fishers case (31 Ch. D. 120) . 778* Fisher, e.,- parte (3 De (!. & S. 116) 62:!, 6.10' V. Keane . . 303, 528, 577 V. Taylor . . . 235, 397 Fislicrnien ol' Faversham . . 64S* Fishmongers' Co. v. Robertson 220, 224 Flagstair Silver Mining Co. . 629, 6 15" F'lauagan v. Great Western Rail- way Co. . Fleet V. Murtou . Fleming's case B'leming v. Self . Fletcher v. Crosbie . V. Marshall . Flitcroft's case 432, Florence Land and Public Works Co. Moor (10 Ch. D. 530) Nicol(29Ch. D. 421) Tufnell and Ponsonby (29 Ch. D. 421) Forbes' case (19 Eq. 353) . 301,327, 757, 791, 795 328, 357, 368, 587 . 500 . 260*, 73,5 916, 920, 921 , . . 2(19 . 512 321, 371, 374, 375, 695 696, 697, 714 AirrilOlUTIEM UEl'KRimU TO. xxxvn r\(iE rorlKs" ciiHci (8 Cli. 708) . 7ltO, 7H5 Fuilx'iiuiil JiuM's .iiso (5 CJIi. a70) 7U8 KorlicM I'. Maislmll . . . 18.1, 234 Korilc, ex jxirU .... 784 \\)Xt!il, ij: imrlc . . . . 724* Fni'L'st of Dciiii Cuiil Mining Co. :i77, 696 Fiiri'ust V. iMiuii^huNti^niiKhShiilliuUl Itailwiiy Co. 202, ai7, 318, Ctl7, 601 Foi-Mlcr fi Co 730 Fnrtli .Miirinu IiiHuranco Co. . 012 Fiirtuiii' Copin'r .Milling Co. . . t!.17 FiiiwooiI'h cliiiiii , . . . 713 Vm» V. Hnrbottio 173, 'MO, 304, 346, 670, 575, {)76», .178, 581, 6()0 l"o«tur c. Oxford Rail. ( 'o. . 328*, 368 — c. Wheclor .... .188 FotlK'iyill's ease . . 783—6, 7itU Fountain's cnHc . 127,683,855,910 Foiuitaino v. Cnrmnrthcii Hallway Co. . . . 174, 194, i!)7, 198 Fiiunlrinier, c.i; /;«/•<(! . . 673,674 I'liiirtli City Mutual Rcncfit Huild- in" Society v. Williams . . 920 Fowlor'g caao .... 793, 796* Fowler r. Churchill . . 460, 401 i: Kickorby . . 283, 2il(i, 297 Fox's casu (3 De G. J. & Sin. 465) 46 '-> Kq. 118) . 123, 521, 777, 842 Fo\, rjpirte (17 Q. B. U. 4) . 717 -- (6 Ch. 176) 8b'3, 894, 895, 8!t6, 897 K. Clifton . 19, 21, 144, 393, 410 ■ — c. Frith 60 Friincc c. Clark . 474, 477, 479*, 480*, 482 Frank .Mills Mining Co. . 94, 326, 525 Frankland, re. . . . . 097 FVanklyn i'. Lauiond . . 4i»7, 4!t8 Frascr v. Coopi'r, Hall & Co. . r73 c. Wluilley , . 581, 6'J7 Free Fi.shomien of Favershani 618, 020, l"36 Freeliold and General Investment Co. (ircen (18 Eq. 428) Freehold Lund and Brickmaking Co. .Massey (9 Eq. 367) FrcoiMiin V. Appleyard f. Gainsford . V. Wliitbread Frickor's case . Fiipp V. Chard Railway Co, Frowd's ca.se . Fry, ex jmrte I' Russell Furiloonjce's case Fyfe's case Fyfe V. Swabey . Fyler c. Fyler Galloway's case . . . . 190 Galvanized Iron Co. v, Westoby 45, 59, 409, 420, 421 Gandy v. Gandy . . . .148 Garden Gully Co. v. McLister 1 ■" "i, 300, 306, 409, 415, 532, 6J4, 843 Gardner v. London, Chatham and Dover Railway Co. . . 195», 197 I'AQP. 8, 601 Great Western Railway of Uengal Co. James (4 De G. & Sni. 183) Qiiilter (4 De G. & Sm. 183) Wolesey (3 De G. & Sni. 101) Great Western, Southern and Eastern Counties Railway Co. Holinsworth (3 De G. & Sm. 7) Great Wheal Busy Mining Co. King (6 Ch. 196) Green's case (18 En. 428) . . 793 Green, ex parte (1 Jur. N. S. 33) . 698 (12 Jur. 534) . . . 901 V. Barrett . . . .593 V. Britten . . . . 543 V. London General Omnibus Co 209 V. Murray . . . . 498 1;. Nixon . 282, 283, 295, 560 Greenlialgli v, Manchester and Birmingham Railway Co. . . 151 Greening & Co. Marsh (13 Eq. 288) Greenshield's case . . 556, 608 Greenwood's case (3 De G. M. & G. 459) . . . 165, 246, 847 Greenwood, ex parte (9 Ch. 511 , 667 (9 Jur. N. S. 997) . . 725 Gregg's case 800 Gregory V. Patchett . 317, 322, 4L'0, 679, 583, 584 V, Williams . Gresham Life Assurance Society Penney (8 Ch. 446) Grey's Brewery Co. (irey's case .... Grittin v. Beverley Griffith's case Grillith v. Paget . 589 377 . 691 . . 746 . 145 . 260, 734 321, 433, 868, 895 Grimes v. Harrison . . 371*, 372 Grimwade, ex parte . . . 848 V. Mutual Society . . 861 Grisewood v, Blaue . . . 488 Grisewood's case . 66, 133, 464, 468, 487, 619, 799 Grissell's case (1 Ch. 528) . 6C6, 672, 730. 742'' Grissell, ex parte (3 Ch. D. 411) . 716, 365 I'. Bristowe . . 501, 504*, 510 Groux's Soap Co. v. Cooper . 127 Groves v. Groves . . . . 140 Guardian Permanent Society . Guest, ex parte V. AVorceater Railway Co, XXXIX J'Af'.E Building 87, 189 639,651* . 292, 395, 787 667, 717" 92(1 Guillcmin, ex parte Guiness v. Ht rrison . . . Guinness v. Land Corporation of Ireland . 119, 321, 334, 396, 432, 671, 597 Gunn's case Gunn V. London and Fire Insurance Co. Gurney v. Rawlins 769 Custard's case Guthrie, ex parte V. Fisk . V. Walrond Gwyn, ex parte (1 Jui. 14. Lancashire . 148, 149 248 16, 470, 762, 770 267 . . 267 . 541 N. S. 300) 714, 715 Habekshon's case (5 En. 287) . 669, 743, 744 Hack V. London Building Society 921 Haddon v. Ayres . 201, 243, 522 Haford Lead Mining Co. Slater (35 Beav. 391) Hagell V. Currie . . 372, 675 Hague V. Dande.son . . 456, 458 Haigh V. North Bierly Union 221, 265 Hakim's case .... 825 Hallbrd v. Cameron's Coalbrookc, &c., Co. . . . 186, 225, 232 Halket v. The Merchant Traders' Loan A.ssociatiou 246, 248, 250, 285 Hall's case (5 Ch. 707) . 520, 532, 797, 839, 840, 845 (3DeG. &S. 80) . . 749 (3 De G. & S. 214) . 765, 766 Hall, ex parte (Mon. ii Ch. 365) . 650 (3 Deac. 405) . . .665 (1 Mac. &G. 315) . . . 750 (1 Mac. & G. 307, and 3 De G. & Sm. 80) . . . 802 (1 DoG. M. &G. 1) . .860 , re William (2 Dr. & Sm. 284) 697 V. Bainbridgo . . 240, 270 V. Connell . . . 440 — V, Mayor of Swansea . . 220 V. Old Talargoch, Ac, Co. . 674 Hull k Co., Limited (A. W. ) . 396, 787 Hallett V. Dowdall Hallmark's casv; Hallows V. Fernie 246, 247, 248, 251 59, 376, 518, 769, 791, 795* 21, 69, 71, 568, 669, 693 Haly 1'. Barry . . . . 461 Hambro' v. Hull, &c., Insur.ii;ce Co. . . . 162, 171, :i(^l, 226 Hanier'a Devisee's case . 812,313,814 Hamcr v. Giles .... 678 Hamilton v. Smith . . 144, 764 Hamilton's case, Lord Clau.l 300, 301, 790, 796» xl AUTHORITIES REFERRED TO. ' ' , it PAGE Hamilton's Windsor Ironworks Pitman & Edwards (12 Ch. D. 707) Hamley's case . . 791, 793, 796 Hammersmith Town Hall Co. . 700 Hampden v. Walsh . . . 139 Hampson v. Price's Patent Candle Co. Hancock v. Hodgson Haudley v. Farmer Han ken v. Bourne . Hankey, ex parte Hannuic v. Guldner Harben v. Phillips . 318, 599 240, 248* . 920 . . 192 710 . 498 157, 175, 310, 567, 573, 599, 600 Harding, ex parte (3 Eq. 341) 729*, 731 Haidinge, ex parte (1 N. R. 40) . 859 V. Webster . 251), 282, 456, 563. 735 Hardy v. Fothergill 554, 719, 732, 816 V. Metropolitan Land, &c., Co 372 Hare's case . 26, 27, 53, 773, 775* Hare v. London and North- West- ern Railway Co. . 54, 60, 63, 108, 567, 571, 601 V. Waring . . .64, 492 Harford v. Amicable, &c., Asso. Co 673 Hargrove, I'.v parte . 115, 135, 621, 622, 662, 722 Harman's case . . . . 260* Harmony and Montagu Tin and Copper ^Mining Co. Spargo (8 Ch. 407) Harris's case (7 Ch. 587) . 14, 16, 770 Harris, re (15 Ch. D. 561) . . 451 V. Amery . . 114, 135, 450 V. North Devon Railway Co. 377, 520, 532, 600 V. The Royal British Bank . 282 Harrison's case (6 Ch. 286) . 768, 824, 825 (3 Ch. 633) .... 779 Harrison, ex parte (28 Ch. U. 363) 468, 538, 552 r. Brown . . . . 564 — r. Heathorn . . 132, 133* V. Mexican Railway Co. . 322, 334, 344, 396, 405 V. Stewardson . . . 565 r. Timmins . 278, 279 V. Tysan . . . . 286 Hart's case . 121, 123, 810, 828 Hart V. Clarke 95, 528, 529, 534*, 582 V. Frontino and Bolivia Mining Co. . Hartas v. Ribbons Hartley's case Hartley v. Allen Hartridge, ex parte Harvey v. Beckwilh r. Clough . I'. Collett — V. Kay V. Scott Harward's caae 54, 60, 63, 64, 484 . 514 . 63,123, 125, 842 . . 547 . 601 . . 566 . 95, 97, 127, 683 . 139, 665 64 58, 60, 110, 283, 287, 288, 295 . 15, 761, 796* Hattersley v. Shelburne Hatton's rase (8 Jur. N. S. 380) (10 W. R. 313) . Haven Gold Mining Co. 253) Hawken v. Bourne . Hawkins' case (2 K. & J. (23 Ch. D. 452) . Hawkins, ex parte (3 Ch. 787) V. Maltby . . 493, VAciE Harwood v. Law . . . .235 Hassell c. Merchant Traders' Loan and Insurance Association . 248, 250 Hastie's case . . 656, 816, 848 Hatcher, ex parte . 42, 808, 809, 848 322, 5i»8, 600, 601, 892 825, 828 . 864 311,633,641, 645* 159, 205 95, 761 . 91£ 678, 694 502, 505, 606, 610, 511 Hawtayne v. Bourne . . . 192 Hawthorn's case (1 De G. & S. 571, and 1 Mac. & G. 49) 817, 818 (10 W. R. 572) ... 840 Hay's case . . 368, 786, 797, 798 Hay V. Willoughby . . .45, 47 Hayes i'. Stirling . . . . 35 Hay man v. Governor of Rugby School 303 Hayter v. Tucker . . 462, 453 Havtor Granite Co. . . 731, 886 Head's case . . . 833, 834 Healey v. Chichester and Mid- hurst Railway Co. 281, 292, 294 V. Story .... 226, 232 Heatlicote v. North Staffordshire Railway Co 324 Heaton'.s Steel and Iron Co. Blyth (4 Ch. D. 140) Simpson (9 Eq. 91) Hebb's case ... 13. 14, 841 Heirs Hiddingh (The) v. De Vil- liers Denysseu . . . .647 Heiron's case . 690, 691, 692, 881, 967 Helbert r. Banner (or Hell)ert's case) . 824, 846, 847, 850, 861, 856 Helby's case . . 816, 822, 830* Hemming v. Maddick . . . 806 Henderson's case . 759, 832, 841* Henderson v. The Australian Royal Mail Steam Navigation Co 222 r. Bank of Australasia 318, 599, 602 Gilchrist . . . 537, 812 Lacon .... 76* Royal British Bank 58, 129, 284 Sanderson . . . . 254 Hendriks r. Montagu . . 113 Henessy's case . . 521, 802, 829 Henley & Co . . . 673, 717 Hcnnell v. Strong . ... 543 Henry's case (2 Ch. 431) . . 121 Henry v. Great Northern Railway Co. . . . 401, 571, 580, 697 Heraud v. Leaf . . .143, 244 Hercules Insurance Co. (Ir. Rep. 6 Eq, 207) .... 697 — V. — V. V. — 1.'. Hickie & Co. AUTHORITIES REFERRED TO. xli 14, 841 I'AOE Hercules Insurauce Co. (11 Kq. 321) 707 Brmiton (19 E-i. 302) Lciwc (9 Eq. 589) Pugli and Sliarraan (18 Eq. 566) lleiefoid and Merthyr Tydvil, &c. , Kail. Co. Maitland (3 Giff. 28) Heiefoid and South Wales Wag- gon, &c., Co. (17 Eq. 423) . 659 __ (2 Cli. D. 621) . . . 722 Herefordsliiro Banking Co. . 725 Bulmcr (33 Beav. 435) Heritase's case (9 Eq. 5) . . 829 Heritage, re (Kay, App. 29) . . 706 r-. Paine . . . .'.10,821 Herman v. Jencliner . . . 139 Hermann lioog. Limited . 674 Heme Bay Pier Co. Burge (1 Ue G. & Urn. 588) Heme Bay Waterworks Co. 625*. 648* 842, 845, 856 . . 788 . 894 426, 587, 540 792, 793, 795* . . 488 Hesketli's case Hespeler's case Hester & Co. , Limited Hewanl v. Wheatley . Hewitt's case Hewitt r. Price Heyford Ironworks Co. Forbes and Judd (5 Ch. 270) Pell (5 Ch. 11) Heymann v. European Central Hallway Co 76 Hibolewhite r. McMorine . 472, 488 Hichens v. Congreve . 346, 351*, 365, 561, 564, 566 Hickie & Co. s case . . . 727 Higgs's case . 46, 62, 122, 184, 208, 891, 896, 897 Higgs V. Northern Asstii Ti?a Co. 741 Higgins, ex parte . . i'14, 723 V. Hopkins . . . 145, 247 Hight, ex parte .... 766 Hildyard v. The South Sea Co. . 483 Hill's case (9 Eq. 605) . 189, 235, 385, 919 Janot (4 App. Ca. 562) . 810, 835 — (20 Eq. 585 and 595) . 638, 812 Hill V. Bridges . . .721, 732 V. East and West India Docks Co 553 222 i;. London and Connty As- 8, 599, surance Society . 670, 671 602 r. Manchester and Salford 37, 812 Waterworks Co. . 168*.-''' 76* HQl Pottery Co 6. 29, 284 Hilton V. Eckersley . .917 254 1'. (iiraud . . 452 113 Hippisley's ca.se . 53, 736, 775 )2, 829 Hire Purchase Co. v. Richens . 708, ■3, 717 878 543 Hirsche), e,Bj)ar/\% 291, 292, 294 Hoare's case (2 J. & H. 229) (10 W. R. 381) Hobbs V. Wayet Hodge, re Hodge's Distillery Co. Maude (6 Ch. 51) Hodgkinson v. Kelly . 491, 493, 697 Hoaro's case (30 Beav. 225) 383* PAOE . 802 . 864 639, 589, 805 . . 262 505, 511 — -— V. National Life Stock Insur- ance Co. . 322, 328, 520, 573, 577, 596 Hodgson V. Fowls . . .571, 598 Hodsell, ex parte . . . 627 Hodson V. Tea Company 197, 675, 726 Holden's ca.se 836 Holdich's case .... 733 Holdsworth v. Davenport . . 451 Hole's case .... 765*, 862 Holgate V. Shutt . . . 694, 921 Holinsworth, ex parte (3 De G. & a 7) . . 623, 626, 627, 646* Holland v. Dickson . 314, 333, 440, 567, 599, 604 Hollinsworth's case (3 De G. & S. 102) 694 Hollwey's case . . . 522, 841 Hollylbrd Copper Mining Co (5 Ch. 93) 697 (Ir. L. R. 3 Eq. 208) . 853, 869 (Ir. K«p. 1 Eq. 39) . . . 783 Holmes' case (2 De G. M. & G. 113) . 594, 818, 823, 830*, 861 Holmes's, Pritchard's, and Adam's cases (2 Ch. 714) . . . 774 Holmes v. Uiuney . . . 268 I — — u. Higgins . . 143, 363,'606 ! • V. Newcastle, &c,. . Abattoir Co. . . . 321,432 V. Synions . 505, 511, 554, 556 Holro3'd. ea;;)artc . . . 698,849 Holt's case (22 Beav. 48) 82*, 156, 206 (1 Sim. N. S. 389) . 518, 838, 862 lloaie Assurance Association . 636, 645*, 659, 661 Richards 'case (L. R. 6 C. P. 591) Home Investment Society . 861, 865 Homer District Consolidated Gold Mines Smith (39 Ch. D. 646) Homersham ?». AVolverhampton "Waterworks Co.. . 221, 225, 227, 235 Hone V. O'Flahertie . . . 282 Hoole V. Great Western Railway Co. . 396, 431, 432, 436, 565, 571, 573, 574, 580, 597 Hop and Malt Exchange Co. 650*, 659 Hope V. Croydon, &c.. Trams Co. 279 V. International Financial Society . 322, 334, 402, 450, 526, 528, 530, 571, 599, 840 Hope Mutual Life Assurance Co. 6.')8. Hopkins' case (4 De G. J, k Sm. 342) .... 698. 747 Hopkins' trust (18 Eq. 606) . 546 Ilopkinson v. Marquis of E.Kcter 628 I xlii AUTHOUITIKS REFERRED TO. PACK HopkiiiKon's and Underwood's coses . . . . 148, 850 Uoilnuy lUidge Coal, &c., Co. 308, 311 Horn r. Kilkenny, kc, Railway Co. Hornbj' v. Close Home und Hellard, in re Horsey "s case (2 Eq. 167) Horscy's claim (6 Kq. 562) Horsley v. Bell Holt's case Honldsworth t>, Hank . V. Kvans 560 . 917 197 822, 830* 202, 732 247, 254 251, 260* City of Glasgow 74, 216, 217, 736. 754* 179, 312, 520, 522, 523, 838, 845 37 Houriet v. i[oriis Houseliold Firo Insurance Co. v. Grant 14 Howard's case (1 Cli. 561) . 17, 156, 771, 781* Howard and Dollnian's case (1 Hem. k M. 433) . . . 723 Howard v. Patent Ivory Mann- lacturing Co. . 147, 176, 177*, 192, 193,197 V. Shaw . . . . 284 Howbeach Coal Co. v. Teague . 157, 158, 300, 305, 309, 319, 336, 409, 411 Hoylake Railway Co. Littledale (9 Cli. 257) Hubbersty r. ^lanchestur, Sliel'- fteld, kc. Railway Co. . 458, 466 Huckle i\ Wilson . . .916 Hwddleston v. Gouldsbury . 450, 541 Hudson's case (2 De G. & J. 275) 83 ■ (12 Eq. 1) . . . . 821 Hudson V. Rcvett . . . 472 Hue, ea' juirtc .... 861 Hughes's case (1 Dc G. A: l-'ni. 606) 710 (16 W. K. 476) . .841 claim (13 Eq. 623) . 725, 728 Hughes, cxpar/c (4 Ch. D. 34, n.) 725 V. Thorpe . . 137, 561, 565 Hughes- Hallett r. Indian Mam- moth Gold Mining Co. . 589,805 Hulett's ease . .180, 224, 741 Hull, Banisloy, &c.. Railway Co. 195, 279 ■ Central Drajifiy Co. . 676, 859 and County Hank . . 659 Flax Co. V. Wellesley . 53, 263, 407, 421, 884 Forge Co 698 ■ and London Fire and Life Insurance Co. Gibson (2 De G. k J. 275) Hudson(2DeG.&J.2"6) Kemp (2 Dc G. & J. 275) Hmubor Iron Works, &c., Co. (2 F. Great Northern Railway Co. . . . 106, 313, 425, 530 Innian v. Clare .... 727 Inns ot Court Hotel Co. . 192, 669, 874, 877 Intci'iiatiouiil Contract Co. . . 702 Hughes (13 Eq. 623) Ind (7 Ch. 485) Levita (3 Ch. 36 & 5 Ch. 489) Pickering (6 Ch. 525) International Life Assurance Society (9 £q. 316) .... 260* — (2 Ch. D.) . . . 737 Blood (9 Eq. 316) Gibbs and West (10 Eq. 312) Mclver (5 Ch. 424) International Marine Hydropathic Co 470, 682 — V. Hawos .... 848 International Pulp and Paper Co. 674, 962 Knowles (6 Ch. D. 556) Inventors' Association . 638, 652, 667 Ipswich, Norwich and Yarmouth llailway Co. Barnet (1 De O. b Sm. 744) xHii PAGE Ireland (Bank of) v. Trustees of Evans' Charities . . . . 224 Irish Lands Improvement Society Fry (1 Dr. & Sm. 318) Irish Peat Co. v. Phillips . 45, 50, .59, 105, 108, 421 Irish West Coast Railway Co. Carmichael (17 Simons, 163) Iron Shipbuilding Co. . . . 62 Iron Ship Coating Co. v. Blunt . 300, 337 Irrigation Co. of France . 632, 642, 651 Fox (6 Ch. 176) Irvine v. Union Bank of Australia 165, 168, 171, 176, 177, 178, 179*. 191, 197, 312 Irving V. Houstoun . . . 545 Isle of Wight Ferry Co. . 618, 636, 645* Isle of Wight Railway Co. v. Tahourdin . 302, 304, 305, 306, 327, 332, 578, 599, 602 Ives, »•« . . 451,467,469 Jackson v. Cocker V. Munster Bank 66, 473, 499 304, 377, 578, 599 . V. North Wales Railway Co. 222 V. Petrie . . . . 848 — - V. Turquand . 16, 770, 824 Jacques V. Chambers . . 544 James, ex jxirte (8 Eq. 225j . . 738 (1 Sim. N. S. 140) . 623, 649* w. Eve . . . . 299, 432 V. May . 804, 805, 879 Jarrett v. Kennedy . . . 34 Je.iffreson, ex parte . . 786, 861 Jeflerys v. Gurr . 46, 220, 464 V. Smith .... 608 Jegon, ex parte . . . 436 Jenkins v. Hutchinson . . 241 Jcnkinson v. Braudley Mining Co. 198 Jenner v. Morris . . . . 236 Jenner's case . . . 793, 795 Jennings, re (1 Ir. Ch. 236 & 654) 418, 551 V. Baddeley . . . 397 V. Broughton . 19, 72, 77* V. Hammond . .115, 135, 141 Jervis v. Lawrence . , 451 Jessopp's case . . 522, 830, 841 Job, re 847 Johnson, exparte (27 L. J. Ch. 803) 388 (1 Jur.N.S.913) . . . 693 V. Goslett . . .30, 31 V. Lyttle's Iron Agency Co. 531, 532, 597 Johnston's claim . . 209, 716 Johnston v. Ronton . 483, 486, 487 Joint Stock Coal f'o. . 633, 634, 643, 650 Joint Stock Discount Co. Fyfe (4 Ch. 768) Hillv4Cii. 769 u.) Loder(6Eq. 491) Nation (3 Eq. 77) Reid (24 Beav. 318) xliv AUTHORITIES REFERRED TO. il i S 1' I'AtiE Joint Stock Discount Co. — cont. Shepherd (2 Eq. 664) (2 Ch. 16) Shipman (5 Eq. 219) Sichell (3 Ch. 119) Warrant Finance Co. (10 Eq. 113 & 5 Ch. 86) i'. Brown . 318, 371, 376, 376, 450 Joint Stock Discount Co.'s claim (7 Ch. 646) . . . 723, 724 Jones' case (6 Ch. 48) . . . 799 Jones, ex parte (27 L. J. Ch. 666) 801 610, 901 . 668 33* 10, 647 . Ct>9 713 849 V. Charleniont V. Garcia del Rio — — V. Harrison V, Ogle . V. Rose .... I'. Scottish Accident in au- Ruce Co. . . . S: 'j1 1'. Victoria Graving Dock . V. Williams V. Yates .... Jopp's case . . . . . Josephs V. Pebrer . . 131 , 13-", 140, 48V, 510 Joy V. Campbell . . . 551 Jury V. Stoker . . . . 88, 92 Kauuth's case . . 792, 793*, 794 Kay v. Johnson . . ,243 Keams v. Leaf . 166, 184, 249, 598, 892 Keasley v. Codd . . . . 245 Keene's executors' case . 315, 316, 542, 758, 812, 831, 862, 893 Kelk's case . 528, 530, 800, 819, 843 Kellock's case . . 685, 716, 720 Kellock V. Euthoven . 493, 506, 610, 710, 821 Kelly's executors, ex parte . . 748 Kelner v. Baxter . . .149, 243 Kekall v. Marshall 101, 266, 910, 913 V. Tyler 916 Kemp's case .... 83 Kenipsun v. Saunders , 131, 141, 494* 512 Kendall v. King .... 279 Kennedy, ex parte . . . . 831 V. Panama, &c. Mail Co. . 76, 590 Kensington Station Act 14?, -^47, 904 Kent's case . . 428, 668, 785 Kent V. Freehold Land, &c. , Co. . 73, 590, 776, 777 y. Jackson . 29, 317, 518, 577 579, 583, 694, 600 Kent Benefit Building Society . 189, 386*, 920 Kent Tramways Co. . . . 147 Kentish Royal Hotel Co. . . 657 Ker's case (4 App. Ca. 549, 598) . 758, 802, 806 Kcrnaghan v. Williams . 321, 598 Kevridge v. Hesso . . . 146 Kerr's case (9 Eq. 706) . . . 733 Keyusham Blue Lias Co. . 673, 674 I'. Barker ... 38, 911 Khlut's case . . .42, 808, Kidderminster (Mayor of) ». Hard- I'AGK wick Kidwelloy Canal Co. u &c., Raby . Railway Co. Kilkenny, Fielden . Kimber v. Barber . Kincaid's case (11 Eq. 192) 221, 22< 24, 107, 410 V. . 263 (2 Ch. 412) Kinder v. Taylor King's ca.se (6 Ch. 301, 327, 757, 791 . ^6, 28 . . 132 196) 802, 803, 827, 843 King, ex parte (3 Ch. 10) . . ,556 V. Accumulative Ass. Co. . 247, 248, 249 V. Marshall . .192 1>. Parental Endowment Co. 291 I mgchurch v. People's Garden Co 676 Kingsbridge Flour Mill v. Ply- mouth Grinding and Banking Co 154, 206 ring- -loss Industrial Dwellings Co. . . . 638, 645*, 652* Kingston's -case (Duchess of) . 283 Kintrea, ex parte 123, 124, 466, 685, 827 Kipling V. Allan . 517, 525 V. Todd . 54, 104, 293, 301, 517, 520, 525, 797 Kirk V. Bell . 166, 157*, 174, 200, 409 V. Bromley Union . 222, 227 Kirkstall Brewery Co. . . . 403 Kisch V. Central Railway Co. of Venezuela . . ,29, 72*, 74 Kit Hill Tunnel . , 713, 720, 723 Williams (16 Ch, D. 390) Kiveton Coal Co. , ex parte . .698 Phillips (7 Ch. 730) Knight's case . 313, 533, 822, 843 Knight V. Barber . 453, 469, 490 V. Knight .... 'AV Knowledge (The Society of Prac- tical) V. Abbott ... 98 Knox's and Nugent's case . . 791 KoUman's Railway Locomotive and Car- riage Improvement Co. Beresford (2 M & G. 197, and 3 De G. & Sm. 175) Ellis (3 De G. & Sm. 172) Kuper's Assignees (3 De G. & Sm. 118) La Banque Jacques Caiitieii v. La Banque de Montreal . 177, 180 Labouchere v. Earl of Wharnclifl'e 303, 528 577 Lacey v. Hill . . . 205, '514' Lacharme v. Quartz Rock Minuig Co 279,595 Ladywell Mining Co. v. Brooke . 358* Laing v. Reed . . .189, 919 Laird v. Birkenhead Railway Co. 223 Lake v. Argyll . . , 145, 149 AUTHORITIES REFKUREP TO. xlv l-AQE i Lima Italian Coal Co. . . 698 Miller (2 Cli. 692) Lu Mancha Irrigation and Land Co. Lord Claud Hamilton (8 Ch. 548) Lambert i'. Ueiidlo . . • ^J!^ Lambton, ex 2}art' parte . . . 627, 646 Liuv r. London Indisputable Life I'olicy Co. . . 249, 251, 412 Lawe's case . 307, 316, 518, 838, 860 Lawless V. Anglo Egyptian, &c., Co. .."... 209 Lawrence's case . . . 26, 28, 771 Lawrence v. Kuowles . 498, 661 V. Lawrence . . . 547 r. Wynn . . . 416, 427, 565 Lawson v. Bank of London . . 113 Lawton, ex parte 561, 627, 641, 647* V. Hickman . . 453, 488 Lee II. Bude, kc. Railway Co. . 292 Lee V. Haley .... y. Neufchatel Asphalto Co PAGK 113 431, 600 V. Nuttall . . . 720, 721 V. Sangster . . . . 713 Lee and Chapman's case (30 Ch. D. 216) 739 Lee and Moor's cijje (5 Eq. 368) . 768 Leeds Banking Co. . 418, 693, 697 Addinoll (1 Eq. 225) Barrett (2 Dr. & Sm. 415) Clarke (1 W. N. 254) Dobson (1 Ch. 231) Fearnside and Dean {ib. ) Howard (1 Ch. 561) Mallorie (2 Ch. 181) Matthewmnn (3 Eq. 781) Leeds Estate Building Society v. Shepherd . 321, 371, 374*, 375, 376, 388, 432, 433, 444 Leeds and Thirsk Railway Co. v. Fearnley .... 39, 422 Leeke's case . 15, 395, 786, 789, 796* Le Feuvre v. Miller . . . 173 Lefroyi). Gore . . . .145 Leggott V. Western . . . 462 Leicester Club and County Race Coursii Co. Cannon (30 Ch. D. 629) Leicestershire Banking Co. . . 861 Leifchild's case . . . 206, 783 Leishiiian v. Cochrane . 46, 759 Leominster Canal Co. v. Shrews- bury and Hereford Railway Co. 151, 223 227 Le Taillour v. The South Railway Co. . Lethbridge v. Adams Letterkenny Railway Co. Levi V. Ayers Levick, re . . . Levita'a case Levy V. Abercorri's Slate Co, Lewis V. Baldwin . V. Billing . V. Carr . V. Nicholson -^, re (6 Ch. 818) Lhoneux, Limon & Co. v. Kong Banking Co. Eastern . 911 249, 250, 251, 373, 854 . . 905 . 653 . . 678 14, 796 196, 198 . 37, 909 . 560 . . 329 . 241 . 457, 458 Hong 265, 909 Licensed Victuallers' Mutual Trad- ing Association . . . . Life Assurance Co. of England 67S Blake (34 Beav. 639) Thompson (4 Do G. J. & Sm. 749) Limehouse Works Co. Coate (17 Eq. 169) Limerick, &c.. Kail. Co. v. Fraser Linipus V. London General Omni- bus Co. ..... Lindsey v. Great Northern Rail- way Co. . . . 151, 223, 258 Lindus v. Melrose 186, 233, 234*, 240 Linford v. Provincinl Horse and Cattle In.surance Co. . . . 161 Linley v. Taylor .... 462 761 674 263 809 xlvi AUTHORITIES REFEUIlEl) TO. -\ Linton v Society Liiitott, ex parte Lion Insurance Tuckfci PAGE Blakeney Industrial . 263, 915 . . . 847 Association v. 853, 855 Lisbon Steam Tininways Co. . . 601 LitchlicM's cnso .... 828 Littlednle, cu- parte 467, 753, 756, 824 Littlcliiiinptou Steam Ship Co. 66, 627, 640, 800 Ellis (3 De G. & S. 172) Onueroil (5 Kq. 110) Liveipool Horough Bank Durnnty (26 Beav. 268) . I'. Mellor '. . . .617 V. Turner (2 De G. F. & J. 502) Liverpool Civil Service Association Greenwood (9 Ch. 511) Liverpool Loan Co. Bullen (7 Cli. 732) Liverpool and Manchester Saw-Mills and Timber Joint-Stock Co. Ashburner (13 Jur. 691) Holt (3 De G. & Sm. 99) Liverpool Marine Assurance Co. Green shield (5 De G. & Sm. 599) Llnnfynmch Silver Lead Mining Co. 889 Llangennoch Coal Co. . . 22, 668 Llaiiliarry Hematite Iron Ore Co. Roney's case (4 De G. J. & Sm. 426) Stock's case (4 De G. J. & Sm. 426) Tothill (1 Ch. 85) Lloyd, ex parte 1'. Crispe V. Dimmack . 01. Lloyd Lloyd Generale Italiano Llynir Coal and Iron Co. Hide (7 Ch. 28) 148, 722, 860 . 491 . . 589 . 675 622, 652, 912 Lock V. Venables Lofthouse's case Logan, ex parte — — V. Courtown Londesborough's case. Lord . 545 94, 256, 524, 840 . . 731 598, 599, 601 244, 849, 851, 860 626 113 763 London Armoury Co. . London Assurance Co. v. London and Westminster Insurance Cor- poration Loudon Bank of Scotland, exparte (12 Eq. 268) .... __ (W. N. 1867, 114) . . 849, 884 London and Birmingham Alkali Co 624, 638 London and Birmingham, &c. Bank 124, 458 Wright (12 Eq. 331) London and Birmingham Railway Co. r. Winter . . . . 223 London, Birmingham, and Bucks Railway Curzon (3 Dr. 509) TAGl: London and Birmingham Exten- sion and Northampton, &c. Railway Co. Carpenti'V's Executors (6 De G. k S.n. 402) Gay ( 5 De G. & Sm. 122) (1 Do G. M. & G. 347) Higgins (2 Jur. N. S. 178) Hopkinson luul Underwood (7 De G. M. & 0. 193) Prichard (5 De G. M. & G. 484) AVeiss (5 De G. & Sm. 402) London and Bombay Bank (18 Ch. D. 581) . 41, 803, 808*, 811 (1 Ch. 525) . . . 701, 702 Ciiuia (9 Ch. 686) London and Brighton Railway Co. V. Fairclough 59, 106, 313, 423, 530, 532, 533, 534 - — - V. London and South- West- ern Railway Co London, Brighton, and South Coast Railway Co. v. Goodwin . 202 258, 900 London, Bristol, and South Wales Railway Co. Capper (3 De G. & Sm. 1) London and Caledonian Marine Insurance . 684, 870, 882, 8S5 London Celluloid Co. . . 787, 789 London, Chatham and Dover Rail- way Co. V. South-Eastern Kail- way Co 184 I..ondon and Colonial Co. Clark (7 Eq. 550) Horaey (5 %. 561) London and Continental Assurance Society v. Redgrave . 23, 25, 411 London Conveyance Co. Wise (1 Dr. 465) London Cotton Co. ... 676 London and County Assurance Co. Jessopp (2 De G. & J. 638) Jones (27 L. J. Ch. 666) Wood and Brown (9 W. R. 366 and 10 ib. 662) London and County Bank Co. v. London and River Plate Bank 474, 476, 477, 483 London and County Coal Co. 632, 641, 646 London and County General Agency Association Hare (4 Ch. 503) London and Devon Biscuit Co. . 677 London Dock Co. v. Sinnott 165, 220, 223 London and Dublin, &c. Railway Co 655 London and Eastern Banking Cor- poration Longworth's Executors (Johns. 461) No. 2 (Johns. 465) London and Eastern Banking Cor- poration 613 AUTHOniTIES UEl-'EURKD TO. xlvii PAOE I,oiiil()ii iind E.xctui- Rail. Co. Holinswoith (;i De G. k Sm. 7) rnrbiiry (:! i''- 43) Limloii niui Financial Association ,. K«li< 103, 177, 179, 200, 364, 373 Ldiidon Founilers' Association v. Clarke . . . 467, 491, 607 Luiuloii and (ii-and Junction Rail- way Co. i: Freeman . 88, 106 . ,>. Oraliain 49, 51, 58, 106, 421 1, ,iidoii, Maiiiburg, &c. Excliange liaiik Kmnier.-ioii (2 Eij. 238) Kvaiis (2 (Jli. 427) I'r.'stou 12 W. N. 10) Ward and Henrv (2 Ch. 431) Zulueta (9 E.i- 270) (oCh. 444) London India Rubber Co. (5 Eq. 519) 868 (1 Cli. 329) . . . . 875 London and Manchester Indepen- dent Railway Co. r,arbor(l M. & G. 176) (1 De G. & Sm. 726) Ba.ss(l DeG. & Sm. 722) Focock {ib. 731) Loudon and Manchester Industrial Association . ... 700 London Marine Insurance Associ- ation . . 621, 662, 722, 849 ATidrews & Alexander (8 Eq. 176) Cliatt (8 Ell. 176) Cook (8 Eq. 176) Crew (8 Eq. 176) Sniitli(4Ch. 611) London and Mediterranean Bank Agra and Mastormau's Bank (6 Ch. 206) Bolognesi (5 Ch. 567) Wright (7 Ch. 55) (12 Eq. 331) London Mercantile Discount Co. 640, 651 Loudon Monetary Co. v. Smith . 114 London, Newbury, & Bath Direct Hail. Co. Cookson (15 Jur. 615) Lnndoa and Northern Insurance Corporation Staee k Worth (4 Ch. 682) Loudon and North- Western Rail- way Co. V. McMichuel . . . 39 V. Price . . . . 163, 165 Loudon and Paris Baiikiiig Corpo- ration .... 637,648* London .ind Provincial Consoli- dated Coal Co. . . 520, 797, 839 Loudon and Piovincial Law Assur- ance Society u. London and Pro- vincial Joiiit-Stock Lil'e . . 113 London and Provincial Provident Society V. Ashtori . . . 114 London and Provincial Starch Co. Cower (6 Kij. 77) London and Provincial Telegraph Co. .... 124, 551, 552 I'AdK London Quays, kc, Co. 702, 888, 889 Ijondou and Scottish Bank Logan (9 Eq. 149) London and Southern Countitis, &c., Land Co. . 157, 158, 223, 300, :!19, 409 London and South Essex Railway Co. Murrcll (3 De O. & Sm. 4) London and Stairordshiro Firo In- surance Co., /)i re . . 28,999 London Suburban Bank (6 Ch. 641) .... (i34, 650 (15E(i. 274) .... 8:52 (19 W. R. 950) . . . 676* London Tramway Co. . . . 483 London and Westminster Insurance Co. Phillips (3 De G. k Sm. 3) London and Westminster Wine Co 055, 657 London and Yorkshire Bank v. Cooper . . . 692, 870, 970 London Wharfing and Warehous- ing Co 637, 648 I/)ng V. Kent . . . . 541 Longdendale Cotton Spinning Co. 675 Longworth's case (7 W. R. 483) . 84 Long worth's executors' case (1 De G. F. & J. 17, 31) . 141, 142, 312, 612, 849 Looker v. Wrigley . 189, 191, 196, 919 Lord, re 883 V. Copper Miners' Co. . 208, 317, 579, 601 489, 493, 504, 505, 511 62, 122, 896 . . 573 . 213 834, 835 227 269 Loring v. Davis , Los' case Lovell V. Andrew V. Hicks Lowe's case . Lowe V. London and North West' em Railway Co. . . 220 Lowenthal, cc parte Lowestoft, Yarmouth, &c., Tram- ways Co 102, 904 Lowndes, ex parte . . 852, 858 V. The Garnett and Moseley Mining Co. . 383*, 886 Luard's case . 41, 42, 685, 752, 807, 808, 809 Lucas V. Beach Luckonibe v. Ashton . Lucy's case Ludlow (Mayor of) v. Charlton Lund's case .... Lund V. Blanshard Lumsdcn v. Buchanan Lumsden's case Lundy Granite Co. Heaven (6 Ch. 462) Lydc V. Eastern Bengal Railway Co. . . . 321, 571, 598 Lydney, &c., Co. v. Bird . 347, 349, 356*, 357, 661 Lyon's case . 29, 410, 411, 761, 771, 773 Lyon V. Haynes . . . 437, 610 Lyater's case . 167, 256, 532, 533, 843 1 43, 606 . 246 710, 860 185, 221 80,), 825 272, 568, 573 801 39, 810, 829 679, 680 xlviii AUTHORITIEH REFF.UBED TO. I'AllE ^[('AiiiiLKT V. Irish Iodine Co. . 220 Mnebiitie v. Lindsay . , 99, 593 Alnecnllum v. Tiirton , . 496 McCollin V. Gilpin 240 243, 247 McC'rciglit V. Stevens , 422, 500 M'Duvitt V. Connolly , 508, 511 lIiicdougHll %', Gardiner , 311, 570. 573*. 578 681, 600 V. Jersey Hotel Co. 321, 410, 411, 432 597, 599 AlacDowi'ir.s rn.sf . . . 730* McDowell V. Davis 706 • ('. Doyle , 267, 706 McKwaii I'. Cunipliell . . 145 McKwen'scase . 556, 816 McKwon 1). London and I^ombay and Mediterranean Bunk . 675 — - V. West London Wliurvps, &c., Co. . 44, 104, 801, 824 1'. Woods . . . 512, 513 Macfarlano's claim . 713, 716, 721, 732 McGowan & Co. v. Dyer . . 209 JlcGrogor «. Doverand Deal Hall- way Co. . . .186, 244 V. Keiley .... 670 Mclntyre v. Bolclier . . 247, 249 V. Connell . 2, 9, 109, 462», 463 V. Miller . . . . 269 Jlclvor's claim . 249, 717, 732, 738, 747, 864 MttcKay's case . 367, 694, 695, 696, 787, 790 Mackny r. Commercial Bank 216, 217* SIcKenna v. Kolt . . ,270 Mackenzie, ex parlr . 740, 742, 743. 848 V. Sligo and Shannon Rail- way Co. . 279, 670, 671, 901, 909 ilackereth r. Glasgow and S. W Railway Co. .... Mackley's ease McKewan's ease . Mackrell v. Glasgow 4 S. Co Maclae r. Sutherland Muclaren v. Stainton 909 . . 797 783, 855 W. Rail. . 909 185, 190, 234* 430, 546*, 909, 911, 912 . 228 . . 731 561, 564 . 123, 777 144, 145 Maclean v. Dunn JAaelme, ex parte . MacMahon v. Upton M cNeill's case Maddick i'. Marshall Madras Inigation and Canal Co, (16 Ch. D. 702) . . . 675 (23 Cli. D. 248) . 662, 698 Aladrid liank Wilkinson (2 Ch. 537) ■ — - V. Bavley . V. Pelly Madrid and Valencia Railway Co. Chad wick (15 Jur. 597) James (3 Be G. & Sm. 127) (2 M. & G. 169) . Quilter (5 De G. & Sm. 276) Turner (2 M. & G. 169) — (3 De G. & Sm. 127) Magdalcna Steam Navigation Co. 695, 708 367, 865 912 I'AOK Magdalena Steam Navigation Co. V. Martin . , . 36, ^!,^ Magnus, ex parte . . . . 713 Muguire's caHO . , 312, 758, 821 Mahuny v. East Holvford Mining Co. . . 157*, 158, 160, 167, IW Mainwaring's case . 16, 778, 881 Mair i'. Himalaya Tea f!o. . . 601 Maitland's case (4 De G, Mac. k 145 766 454 180, 237 ■M, G. 769) (3 Giff. 28) Malachy v. Soiu^r . Malaga Lead Co. Firmstonc (20 Kq. 524) Mallock V. Jenkins Mailorie's case Malone, ex parte Manchester Bank Mellor (12 Ch. D. 917) Manchester Economic Building Society . . . 662, 663, Manchester and Liverpool District Banking Co. Littler (18 Eq. 249) Manchester and London Life Ass. 260' 657, 734 Mancliester and Milford Railway Co 279 Mangles v. Grand Coll. Dock Co. 412 Manisty v. Churchill . . . 717 . 920 770, 814 . 815 698 Mann's case Mansfield's case Mant V. Smith March v. A. G. Mare v. Charles V. Malachy 76r 123, 810, 828 771, 851, 860 . 606 . . 452 . 232* . . 593 Maria Anna, &c.. Coal and Coke Co. Hill (20 Eq. 585) McKewnn (6 Ch. D. 447) Maxwell (20 Eq. 585) Marine Estates Co. . . . 263 Marine Investment Co. Poole's E.tecutors (8 Ch. 702) Marhie Mansions Co. . 197, 707, SM Marino's case . . . . 121, 836 Markham v. Markham . . 570 Markwell's case . . . 765*, 862 Marlborough Club Co. (1 Eq. 216) (5 Eq. 365) Marlow v. Pitfield Marnham, ex parte. . . . Manjuis of Abcrcoru's case . Marsden v. Kent . . . . Mar.seille.s, &c.. Land Co. 703, 878, 658, 6.'<9 694, 783 . 236 488 301 548 879, 890 Brandon (30 Ch. D. 598) Credit Foncier, &c. of England (7 Ch. 161) Evans ^11 Eq. 151) Smallpago (30 Ch. D. 598) Marsh's case (13 Eq. S88) . . 867 Marsh, ex parte (1 Mac. & G. 302) 863 V. Keating . . . . 483 Marshall, «;)art« . . 556,815 V. Corporation of Queen- boiough 223 AUTHORITIES nEFKRRED TO. xlix MarahiJl PAOE i>. Glamorgan Iron Co. 626, 818, 833 I Marson I'. Liind . . 291,295,670 I Miirtniio )'. Mann . . . . 661 I Miirtin r. Lacnn . . . 451 r. Sodf^wifik . ... 454 Martin's cisc! (2 Hoin. & M. 669) 62, 122, 896 Martin's rliiirn (14 Kq. 148) . 761 Martin's ratout Anchor Co. v. 556, 815, 848 96 M(irton Martyn c Gray . Marvli'bonu Joint-Stock Bank (18 ,Iiir. 281) 850, 851, 852, 863, 865, 866 — (25 L. J. Ch. 650) 852, 854, 858 liusk (3 Do G. & S. 267) Davidson {ib. 21) Stanhopo {ih. 198) Troutbcck (1 Do G. k S. 585) Walk.T (1 Do G. & S. 585) Masons' II ill! Tavern Co. Hnlier.shon (5 Kq. 286) Jl.isun ('. iJogfj . . . . 720 — V. Harris . . 571, 572, 579 Masonic and Gonernl Life Assur- ance Co 624 Miisscy, rr. . . 703, 704, 865 ('. Alien. . . . 691, 806 Master's case . . . 825, 828 Mather, c.f parte . , . . 141 — /'. National Assoc. Invest- ment .Society . . 293, 794 .Matlieson IJrothers, Limited 622, 623, 636, 644*, 912 Mathew's case . 15, 7(i7, 770, 861 Mathow V. ISlackinore Matloek Old Bath Hydro. Co. Maynard (9 Ch. 60) Mattcrson v. Elderfield ■ . . Matthc\vman'.s case . . 41 Matthews v. Great Northern Kail- way Co. . Matiirin v. Tredinnick . 496, 691* Maude, ex parte (6 Cli. 51) . 852, 247 920 ,809 401 ,592 869, 885 , 860 434* Maudslay and Field's case . 766 Manglian v. Leaininjiton Gas Co. Maund I'. Monmouthshire Canal Co 209 Maunder i-. Llovd . . . 913, 914* Miunsell v. Midland Great West- ern Railway Co. 184, 186. Mawer's case Maxtwl I'. Paine (No. 1, L. R. 571, 598, 601 . 848 4 Ex. 81) . 503, 510, 612 (No. 2, L. R. 6 Ex. 132, and 4 ib. 203) . 491, 495, 500, 501, 504*, 506, 508, 509, 510, 511 Maxwell's case (20 Eq. 585) 783, 855 — (24 Beav. 321) . . 811, 829 i ■ — trusts (1 Hem. & M. 610) . 547 - 1'. Dulwich College . . . 223 - V. Port Tennant, &c. 357, 585, 587 I Mayhew's case . 94, 254, 471, 823, 831 I Mapard's case . . . 785, 798 L.C. PAOR Maynard i'. Eaton . . . 609, 611 Mayor of (."olchestcr v. Lowten 198, 207 Mayor of Kidderniinater v. llurd- wick 221, 224 Mayor of FiUdlow v. Charlton 186, 221 Mayor of Stalford v. Till . . 220 Mayor of the Staple of England V. Bank of England 198, 221, 224, 483, 484, 486, 487 Meader v. Isle of Wight Ferry Co. 282, 292 Medical Invalid, &c., Life Assur- ance Society Griftith (6 Ch. 374) Spencer (6 Ch. 362) Meek v. Wendt & Co. . . 241 Mceus V. Thelusson , . . 914 Melbourne Banking Corporation Brougham (4 App. 156) V. Brougham . . . 223 Melhado v. Hamilton . . 405 J'. Porto Al(!grc, &c. liail- way Co 147 Meliorucchi v. Koyal E.xcliango Co 651 Melliss !'. Shirley Local Board . 222 Menier v. Hooper's Telegraph Works . . 309, 321, 572 Mercantile ond Exchange Bank London Bank of Scotland (12 E([. 268) Mercantile Mutual Marino Insur- ance Association . . 556, 815 Mercantile Trading Co. Schroder (11 Eq. 131) Stringer (4 Ch. 475) Mercer's case . . ... 690 Alerchants' Co. . . . 685, 690 Heritage (9 Eq. 5) Merchant Banking Co. of London V. Merchants' Joint-Stock Bank 113 Merchant Traders' Ship Loan and Assoc. Co. .... Chappie (5 De ft. & Sm. 400) Talbot (5 De ft. & Sm. 380) Yelland (5 De G. & Sm. 395) Merchants' and Tradesmen's As- surance Society . . 260 Meredith's case and Convor's case Merionethshire Slate and Siate Slab Co Day (3 Jur. N.S. 1016) liye {ib. 460) Merry v. Nickalls 501, 503, 504, 510 ilersey Docks Co. v. Gibbs . . 209 Mersey Railway Co. . . . 279 Mersey Steel and Iron Co. v. Nay- lor & Co. . . 273, 667, 719, 728*, 7£'<, 739 702 735 246 20* Metropolitan Bank v. Heiron V. Jones .... V. Pooley . . . . Metropolitan and Provincial Bank Metropolitan Public Carriage, &c. Co. Brown (9 Ch. 102) Cleland (14 Eq. 387) d 374 881 210 726 ! i AUTHOniTIES nKFERRBD TO. I'AOE Mctrnnolitaii Rnilway Junction Co. Markwoll (6 Dn (J. k Sm. 5'28) Mctrupolitiin Itiiilway Wiiriihouso Co. (15 W. H. ll'/l, L. J.) . 628 (W. N. 18fi7, i)t) . . 6M\* ML>ti'()|)cililaii Saloon Oninil)Us I'o. 635, tiliU, Oil, (i5(i* V. Ilawkint) 603 Meux's Kxccutors' case 183, '207, 813, 824 Mcuxr. Malthy . . 266, 267, '272» Mexican an■ parte . . . 1!(7 V. Anglo-Italian Bank . 197, 621 675, 720 Moore v. Garwood . , . 14, 31 — I). Haniinond . . . 307 y. Mi^tropolitan Railway Co. 209 V. Rawlins . . 117, 633, !)'22 Moore Gold Mining Co., Sir John 703, 878 Morgan's ca.se (1 Mac. & G. 235 & 1 Do G. & Sm. 750) . . 317, 320, 518*, 817, 838* (28 Ch. D. 620) . 440, 705, 896 Morgan v. Great Eastern Railway Co 569 Morissc V. Royal British Bank . 282, 295, 671 Morrice v. Aylmer . . . 400, 541 Morris' case (7 Ch. 200 & 8 Ch. 800) 394, 857 Morris v. Cannau . . 473, 488 V. Glynn V. Kcaisley , ■ V. Sadlier Morrison, ex parte (Da Gex, 539). (15 Jur. 346 & 20 L. J. Ch. 296) V. Glover .... Morton's case . . . . Morvflh Ci)nsols Tin Mining Co. McKay (2 Ch. D. 1) Moscow Gas Co. (City of) u Inter- national Financial Society . . Moseley v. Cressey's Co. 451 492 537 158, 319 765 916 824 \Um\''\ tlic l!;inett --(I Fox (."> .. (3 De < -(11 'ill' -- ,: Steil Mostyii r ( Mmilii'n '•. C \lo\vali t ons MeKay Mowatt '■. (' 263 32, 568 - I'r /Kii'fi' ,: Lor," Minviitt iiud \l. .^ (}. 2.-I Miiziey r. A Is Mmlfiivd's da Miyf,'eridge, » Miiir's .aso (4 Miiir i\ City i Miliki'i'ii r. Li Miilliiinr V. M Muiiiliiy, i\i- /ii Miiniiipal IN Society — c. Ricliai Minister Hank — I'. Camm M lint's ease Muiit !•. Shrev liiiilway Co. Murjiliy I'. O'i- Murray's excel Murray v. Bus '•. Fast I — - i\ Flavel y. Piiikei 11. Scott Muirell, ex pa Mus^'rave's ca Mutter V. Ea Railway Co. Mutual Societ (22 (Jh. : (24 Ch. (ii'imwadi .Mutual Aid I Ch. D. 182 i Myers v. Peri] V, Raws( Mysore Reofs Nacupai Gol Nauney i;. M( Nantco's Com Thomas I AUTHORrriES nEFBIlRED TO, I'Ar.F. 39, m. 8111 I, 816, «4K asos 46(i, 8llfi, m liiiik 100, . •I;'il . -li) t, r,\-> . tli:i 746, ,s;!i . 910 Me- 18; lton 8, 160 ifii 197 197 624 675, 720 . 14, 31 ;)07 Co! 20S1 , 533, 922 )lin 703 ,878 5& , 317, 817, 838* , 705 ,896 k'liy , 569 282, 295, 671 400, 5^ [)0) 394, 857 473, 488 451 492 ti'M )'■ 1,58, 319 h. 765 916 824 r- 263 32, 568 Moicli')' Oioon Coal and Cukn Co, Iliinott(4 l)o(}. .1. ZiA. 756) --(4 DoG. .r. iV S. 416) K(i\ t:> Kij. 118) Mo^s, '•'■/'"Wt(14C'' I). 398) . - (;t l)i'<}. &S. . , -(11 'ur. 7fi4) I'. .Slciiiii (jomloia Co. . Mostyii ' C.ili'ott llill .\liiiiii},'C(i. Mmilioii >•. CiiTiirimx . . , \|ow;ili ( iiiiMoI.s 'I'iii Mining Co, . .MiK.iy {-J Ch. D, 1) Mowiitt ■ . Custki St(M'l Co. , PAfin 359 551 622, 651" 4.5, 54*, 59 112 40 197, 198, 723, 784 ~,:t i>nrte (1 Drew, 217) . . 8,'il /•. Iioi'il fiondcslioroiif?]! . 31, 34 MiinMll "Mil Klliiitt'.s case (:l l)i'(!. M, ,^ (1. 2.".4) . 78(t, 851 861 Mi./li'v -•. Alston . 300, 570, 573, 575, 576*, 578, .^.8] *, 600 Miidfonl's claim . , . . 738 Mii;,'f,'oii(lge, re , . .813, 848 \|iiir'sraso(4 Ap ). On. 337) Miiir /'. City of asgow Itank 46 801 MiilliMrii ('. Lord 921 Mulliiifii' f. Midland Kailwiiy V,o. 202 Miimlay, I'r iiarte . ... 748 Miiiiiiipal i'ermaii Buildinj^ Society v. K , . 921 — 1'. lliohardH 921 .MuiistiT iJank, Liiniteu . , . 805 Caininell Co. 302, 337, 567, 699, 996 Muiifs case . 201, 519, 838, 839 Miiiit V. Shrewsbury and Chester HiiilwayCo. . 321,323,571,598 Murphy v. O'Slioa . . . 368 Miin:iy's executora" case , 193, 226, 328, 388 Mmiav 1'. Hush . 300, 336, 758, 822, 824, 832, 841 i; Kast India Co. I'. Flavell V. Piiikett . V. Scott , Miurell, ex parte Slus^fivo's case Mutter V. Eastern Railway Co. 185, 222 . . 589 456 . 189, 919 . 652*, 653 121, 500, 749, 835 and Midland 314, 333, 440, 567, 599, 604 Mutual Society , (22 Ch. b. 714) . 692, 695, 705 (24 Ch. D, 425) . . . 872 (■rimwade (18 Ch. D. 530) Mutual Aid Building Society (29 Ch. D. 182&;30Ch. D. 434) . 189, 872 Myers v. Perigall . . . . 452 — V. Raw-son .... 293 Mysore Keels Gold Mining Co, , 703 Nacupai Gold Mining Co. . . 659 Nauney v. Morgan . 108, 467, 469, 472, 477, 588 Nanteo's Consols Co, Thomas (13 Eq. 437) PAOK Nanlle Vale Slato Co. .lob (27 Hcnv. 32) Nant-y-(ilo r. Crave , . . 367" Narborough and Watliiigton Rail- way Co. .lames (1 Sim. N. S. 140 Natal InvintnuMit Co. . . 640, il.'il* financial I 'orporation (3 Ch. 355) Ncvill (6 Ch. 43) Siicll (5 Ch. 22) Nathan, Newman ,V Co. , 685, 688, 7 16 Nation's case .... 834, 83.''/ Nutiiiiial Alliaiii'c Assurance Co. AshworllulO W.lt. 771) Niitioual Arms Co. . . 682 Niiional .Assurance and Invest- ment As.soi'iatinu Munday (31 lieav. 20 ;) National Hank, rr (10 Ecp 298) . 694, 69(! — ,xp(,r/r{H E,|. 507) . 203, 726 of St. Charles ('. I'.ariiales . 909 National Bolivian Navigation Co. i: Wil.sou 30 National Building Land Co. . 865 National Collee I'alace Co. I'aumure(24 Cii. I). .'}i;7) " National Kijuitable Provident Society Wood (15 E(i. 236) National Kxehange Co. of Gla.sgow «. Drew .... 211*, 213* National Funds Assurance t!o. (10 Ch. 1). 118) . 321, 371, 373, 375, 378, 390, 695, 696 (4 Ch. 1). 305) . . 662, 098 National (Juarantoed Manure Co, i>. Donald . . .199 National Insurance and Invest- ment Co. Abercoru (4 De G. F, & J, 78) CotterelliCll \V. K. 13) Davi(! (4 De O. F. & J. 78) Munday (31 Beav. 206) National Live Stock Insurance Co. (26 Beav. 153) . . . 649* National Patent Steam Fuel Co. Baker (1 Dr. k Sm. 55) Barton (4 Dr. 535) (4 De G. & J. 46) Worth (4 Dr. 529) National Permanent Bunofit Build- in;,' Society .. . 237, 662 National Provincial Life Assurance Society . . 260*, 261, 645*, 734 Fleming (6 Ch. 393) National Provincial Marine Insur- ance Co. Gilbert (5 Ch. 559) Parker (2 Ch. 685) National Savings H.ink . 626, 662, 863, 875, 877, 887 Hebb's case (4 Eij. 9) Native Iron Ore Co. . . . 203 Natle Slate Co 847 Nash, ex parts . . .61, 605 Nassau Phosphat Co. . 39, 111 d 2 I lii AUTHORITIES REFERUED TO. I ^ PAOE Natusch V. Irving 319», 321, 579*, 597 Navaii and Kinjrscourt Railway Co. . . . . '. 906 Naylor's case . . . .85, 772 Naylor v. South Devon Bailway Co 535, 597 Neale v. Turtoii . • . . 185 Needham's case .... 821 Needham v. Law . . 268, 269, 286 V. Rivers Protection Co. . 676 Neill's case 845 Neilson, ex parte . . 488, ffl6 r. James . . . 489, 511 Nelson Mitchell v. City of Glas- gow Bank Liquidators . . 466 Ness, fix parte r. Angas — f. Armstrong V. Bertram . V. Fenwick Nevill'd case Nevins v. Henderson Ncwbigging v. Adam . New 13runswick Railway Co Boore V. Conybeare V. Muggeridge 282 41, 55, 109, 289 55, 110, 289, 540, 542 . 540 295 821 145 73 V. Ill, 119 . 213* 45, 119, 129, 421, 587 New Buxton Lime Co. Duke's case (1 Ch. D. 620) Newby v. Von Oppcn , . . 265 New Callno .... 662, 698 Newcastle, &c.. Bank, re . 684, 686 Spence's case (17 Beav. 203) Newcastle Machinists' Co. . . 655 Newcastle-upon-Tyne Marine In- surance Co. Brown's case (19 Bcav. 97) Henderson's case (19 Beav. 107) New Chili Gold Mining Co. . 334, 401, 403 New City Constitutional Club Co 679* Pin-ssel (34 Ch. D. 646) New Clydach Co. . . .197 Newfoundland (Government of) v. Newfoundland Railway Co. 276, 740 New Gas Co 659 New Gas Generator Co. . 640.641, 646, 649*, 651 Newhavcn Local Board v. New- haven School Board . 300, 302. 330, 3:i6 Newington Local Boaid i'. Eldridgo 603 New London Brazilian Bank v. Brocklebank . . . 450, 457 Newport, &c., Railway Co. v. Hnwcs 427 New Quebrada Co. . . . 124 Newry, kc. , Railway Co. t'. Coombo 39, 422 r. Edmunds . . 416,419 V. Moss . . .46, 421, 802 New Sombrero Phosphate Co. v. Erlangc-- . . 70, 88, 354* New South Wales Bank v. Owston 210 PAOl New Theatre Co. Bloxam (4 Do G. J. & S. 447) (33 Beav. 529) Newton v. Belcher . . .145 V. Daly . .95, 205, 293 1'. Liddiard . . . .145 Newtownards Gas Co. . . 852, 86fi New York Exchange, Limited . 636 New York Life Insurance Co. . 37 New Zealand Banking Corporation 741 Hickie ."c Co, (4 Eq. 226) Levi & Co. (7 Eq. 449) Sewell (3 Ch. 131) Nicholas, ex parte, . . . 556 Nicholay's case . . . . 76.1* Nicholls r. Diamond . . . 232* Nichols r. Rosewame . . . 463 Nichols' case (W. N. 1867, 77) 26.* 772 (29 Ch. D. 421) . 124, 763, 797 (3 De G. & J. 387 and 420) . 72, 80*, 82*, 87, 156, 206, 211, 214, 215, 522, 749, 751, 824, 841, 861 Nicholson v. Bradtield Union . 222 V. Gooch . . . . 140 NickoU's case (24 Beav. 639) . 782*, 789, 805 Niger Merchants' Co. v. Capper . 637 Nister Dale Iron Co. Hughes (1 De G. & Sm. 606) Nixon V. Brownlow . 23, 106, 291, 292, 296, im V. Green . ... 292 V. Kilkenny Riiilwav Co. . 291 V. Tair Vale Railway Co. . 227 Nockells V. Crosby 30*, 34*, 131, 132 Norbury's case . . . . 767 Norman v. Mitchell . 24, 393, 410, 411, 528, 534*, 597, 599 Norrington, re Norris v. Chambers V. Cooper V. Cottle . V. Iri.sh Land (.'n. North American Colonial 548 912 764, 76« 764, 766 61, 280, (i03 Asso- ciation of Ireland v. Bentloy . 424* North Brazilian Sugar Factories (56 L. T. (N. .S.)229) . . 660 (37 Ch. D. 83) . . . 705 North of England .Joint Stock Banking Co. . . 654, 684, 703 Angas (1 De G. & Sm. 560) Armstrong (1 De G. & Sm. 565) Bernard (5 Do G. & Sm. 283) Burlinson i3 De G. & Sm. 26) Chartres(l Do G. & Sm. 581) Crosfield (4 De G. & Sm. 338) (2 De G. M. & G. 128) Dodgson (3 De G. & Sm. 85) Fenwick (1 De G. & Sm. 557) Glaholme (1 De G. & Sm. 583) Gouthwaite (3 M. k (J. 187) (3 De G. & Sm. 258) Hall (1 M. & G. 306) (1 De G. M. & G. 1) (3 De G. & Sm. 80) Hawthorne (1 M. & G. 49) Hawthorn (1 De G. & Sm. 571) North of Banking Holm Stratlo G. AUTHORITIES REFERRED TO. liii PAUE North of England Joint Stock Banking Co. — continued. Holme (2 De G. M. k G. 113) (4 De G. & Sm. 312) Hutcliiiison (1 De G. & Sin. fi63) Mawer (4 De G. & Siii. 349) Reaveley (1 De G. & Sm. 550) Sadler (3 De G. k Sm. 26) Sanderson (3 De G. & Sm. 67) (1 M. & G. 306) Strallon's Executors (1 Do G. JI. & G. 57G) (4 De G. .t Sill. 256) Thomas (1 De G. & Sm. 579) North Hallenbeugle Mining Co. Knight (2 Ch. 321) Northampton Coal, &c., Co. v. Midland Waggon Co. . . 264 North Kent Railway, &c., Co. Kincaid(ll Eq. 192) North London Railway Co. v. (Jreat Nortliern Jln.ihvay (Jo. North Shields (}uay and Improve- ments Co. Davidson (4 K. & J. 688) North and South Wales Haii: North Stafford Steel Co. r. Ward 309 Co. V. 106, 416, 422 , 653* . . 680 702 (10 Co. North- West Transportation Co. r Beatty North-Westcrn Railway McMichael North-Western Trunk C-o. North Yorkshire Iron Co. Northern Assam Tea Co. Universal Life Assurance E.i. 459) Northern Coal Mining Co. ISagge(13 Beav. 162) Northern Counties of England Fire Insurance Co. Macl'arlaine (17 Ch. D. 337) N cithern and Southern Connect- ing Railway Co. Merecr (5 De G. M. k G. 26) Northey v. Johnson . 96, 256 Northfield Iron k Steel Co. . Northumberland Avenue Hotel Co 147 Northumberland District Banking Co 112, 617 Northumberland und Durham Banking Co. . . . Bigge (5 Jur. N.S. 7) Dixon's executors (1 Dr. k Sm. 225) Luard (1 De G. F. & J. 553) Rhodes (7 W. R. 510) Totty (1 Dr. & Sm. 273) Norwej,'iaii Charcoal Iron Co. ilitehell (9 Eq. 363) Norwegian Titanic Iron Co. Norwieli Equitable Fire Insurance Co Norwich and Lowestoft Naviga- tion Co. V. Theobald 524 694 176 708 628 691 596, 698, 602 203 410, 411 I'AOB Norwich and Norfolk Permanent Building Society . .921 Smith's case (1 Ch. D. 481) Norwich Provident Insurance Society Bath (8 Ch. D. 334) (11 Ch. D. 386) Hesketh (13 Ch. D. 693) Norwich Yarn Co. (22 Bcav. 165) 311, 381*, 382 (12 Beav. 366) . 628, 633, 647 (13 Beav. 428) . 715,749 Bignold (22 Beav. 143) East of England Banking Co. 's case Nunn f. Clayton . . 295 i\ Lomer . 29tt Oaku.vnk Oil Co. V. Cruia . 434, 455, 1022 Oakes and Peek, ex parte (3 Eq. 576) . . . . S4 See Oakes v. Tunjuand. (3 E.}. 634) . . 747, 862, 864 (W. N. 1886, 361 ^ . 849 Oakes v. Oakes . . . . 641 y. Tunpiand 26, 29, 60, 70, 73, 111, 214, 589*, 590, 753*, 776, 777, 797, 810 Oak Pits Colliery Co. . . 680, 681 O'Brien's case . . 104, 757, 791 O'Connor v. Brudshaw 135, 138 Odessa Tramways Co. v. !Mendel . 586, 587* O'Flaherty c. McDowell . . . 1014 Ogle V. Kiiipe . . 450, 541 Old Wheal Nejituiie Mining Co. Pulbrook ^2 De G. J. & S. 348) Kawliligs (2 De (!. J. & S. 348) Onion's case . . . 15,16,767 Onslow's trusts Oppenheimer v. British and Fo- reign Exchange, &e.. Bank Oriental Bank Corporation The Crown (28 Ch. D. 643) 460 732 673, 717 410 Guillemin (28 Ch. D. 634) MacDowall (32 Ch. D. 366) Oriental Commercial Bank (5 Ch. 358) 204 (W. N. 1866, 283) . 637, 643, 659 (7 Ch. 99) . . . . 728 Alabaster (7 Eq. 273) Barge (5 Eq. 420) European Bank (7 Ch. 99) Maxoudoff(6 Eij. 582) Morris (7 Ch. 200) (8 Ch. 800) w; /)«(•!!« (3 Ch. 791) . 728,804 Oriental Financial Coi'poration, (k parte (4 Ch. D. 33) . . 725 Oriental Hotels Co. ... 865 Oriental Inland Steam Co. i-. Briggs - . .16, 687 Scinde Railway Co. (9 Ch. 557) Ormerod's case . . . 65, 800 Ornamental Pyrographic Co. r. Brown 411 n/ liv AUTHORITIES REFERRED TO. I , I I * '< < i PAGE Orpen's case . . 467, 824, 826 Orr V, Glasgow Railwiiy Co. . 303, 411, 568, 577*, 596 V. Union Bank of Scotland . 483 Orrell Colliery and Fire Brick Co. 722 Osborne, ex parte . , . 766 Osgood V. Nelson . . . 303, 528 Ottley V. Browne . . .141 Oundle Union Brewery Co. Croxton (1 I)e G. M. k G. 600) i5DeG. &Sm. 432) Outlay Assurance Society . 871, 1034 Overend, Gurney k (4 Ch. 460) . Barrow (3 Ch. Gibb (L. R. u Grisseil (1 Ch, Lintott (4 Kq. Parbury'.s case (3 De G. & S. 43). PAOE 862 189) 372, 373, 374 . 373, 374 31, 901 . . 499 65, 205 >^ (; Co., <•,/■ ])ar/c 165, 170*, 185, 230 784) Ho. Lo. 480) 528) 184) Musgrave & Hart (5 Eq. 193) Oakes & Peek (3 Eq. 576) Walker (2 Eq. 554) Ward & Gariil (4 Eq. V. Gibb V. Gurney Owen V. Challis , V. Routh V. Van Ustcr O.xl'ord Benefit Uuilding .s,.iiety . 321, 371, 373, 374, 37.">, 376," 388, 432, 433, 696 Oxford and Worcester l-^.xtension and Chester Junction Railway Co. Barber (15 .lur. T.l) Morrison (15 Jur. 346) Potter (1 DeG. & Sm. 728) Sharp & James (1 De G. M. 565) Oxford, Worcester and Wolver- hampton Railway Co. Melward(26 Beav. 571) Padstow Total Loss /ssociation . 115, 135, 141, 621, ( 22, 623, 647*, 662 Page V. Cox ... . 589 Pagin and Gill's case 745, 784, 785, 789 Pahlen's case, and Kelk's case . 530, 843 Paine v. Hutchinson 493, 494, 505, 510 I'aine and Layton, w ^.artc . . 692 Paine v. Strand Union . . . 221 Painter's case . 79, 86, 412, 519, 532*, 534 See Richmond and Painter's case Painter v. Liverpool (las Co. . 417 Palm(!r, cr parte. . 524, 736, 860 V. The Justice Assurance Society .... 295, 671 Panama, &c., Mail Co, . . 197 Panmure, ex parte . 241, 494, 512, 515 Panonia Leather Cloth Co. . . 656 Paper Bottle Co. . . . . 659 Paraguassu Steam Tramroad Co. Black & Co. (8 Ch. 254) Ferrao (9 Ch. 356) (3 De G. F. & J. 80^ Pare v. Cleg:g . . . 272, 566 Paris r. Paris 545 Paris Skating Rink Co. (6 Ch. D. 731). . . . 61,603 (5 Ch. D. 959) . . 637, 048* Park Gate Waggon Co. . 708, 956 " ' 123,464,835 122, 123, 811, 828, 818, 819, 840, 374 376 363 676 829 148 861 541 626 & Parker, ex parte V. Lewis . . . 371, r. McKenua . . 366*, 375, Parkin v. Fry .... Parrj''s case . Parson's case Parson v. Spooner Part's ease Partridge r. Partridge Patent Artificial Stone Co. . . Patent Bread Machinery Co. Valpy & Chaplin (7 Ch. 289) Patent Carriage Co. Gore & Durant (2 Eq. 349) Patent Cocoa Fibre Co. Patent Elastic Pavement, &c., Co. Armstrong (3 De G. & Sni. 140) Price & Brown (3 De G. & Sm. 146) Patent File Co. . . . 203, 207 Birmingham Banking Co. (6 Ch. 83) Patent Floor Cloth Co. . 655, 8,'>7 Patent Invert Sugar Co. . . 344, 402 Patent Paper Slanufaeturing Co. Addison (5 Ch. 294) Patent Screwed Boot Co. . . 657 Patent Steam Engine Co. . 626, 627 Patent Ventilating Granary Co. . 404 Patersou v. Ironside . . . 268 Patrick v. Reynolds . . .145 Paul and iJeresford's case (33 Beav. 204) . . 328, 346 (10 Jur. N. S. 692) . . . 52" Pauling V. London and North- western Railway Co. . . . 227 Pawle's case . . 123, 777 Payne's case .... 466, 827 Payne v. Brecon . . . .173 v. New South Wales Co. . 148 Pearse's case . . . 697, 744 Pearson's case (3 Ch. 443) . 667, 699 (4 Ch. D. 222, aff. 5 Ch. D. 336) . . 367, 694, 696, 790 (7 Ch. 309) .... 709 Pearson's Executors' case (3 De G. M. &G. 241) .... Pearson v. London and Croydon Railway Co. . . Peart v. The Universal Salvage Co. Pease v. Jackson . . . , Peddell v. Gwyn 767 399 295 920 . 283 Peck's case (4 Ch. 532) . . 16,760 Oakes & Peck Peek V. Derry . 72. 73, 88, 89*, 90 V. Gurney . 70, 88, 89, 90*, 214, 215, 217, 470, 684 AUTHORITIES REFERRED TO. Iv PAGE '. 43). 86', 862 . . 5!;6 272, 56(; . . 545 Ui. D. 61, 6u:j . 637, 048* 708, Me 123, 464, 835 371, 374 56*, 375, liiti . 363 6(ii 11, 828, 829 62i) 6M 665 S,''? . 344 ■1(12 6.1? 62ti «27 0. . 404 . 268 145 (33 328 346 520 "ith- 22; 123, 777 466, 827 17:! , 148 697, 744 667, 699 D. , 696, 790 , 709 3G. , 767 don 399 Co.' 295 , 920 16, 780 PAGE Peel's case . 26, 29, 111, 771, 773*, 797 I'eel V. Thomas . . • 2.5, 95, 293 Pcircc !■ Jersey Waterworks Co. . 158, 165, 170*, 410 Pell's case (5 Ch. 11, 8 Eq. 222) . 395, 785 799 . ,3 De 0. & S. 170) . . 704' 861 PellutVscaso . 14,15,17,744,769, 778, 779, 780, 781* ivaiv, e.r parte . 372, 375, 696, 697, 744 I'elotns Coti'ee Co. Karuth (20 Eii. 506) Pcu'allt Silver Lead Mining Co. Fothorgill (8 Ch. 270) I'oiuk-r !'. Lusliington . 309, 465, 566, 573, 597 I'endlebury v. Walker . . 266 I'enhalc and Lomax, &c., Co. . 125, 615 IVninsula banking Co. (35 IJeav. 280) .... 673, 678 I'eidnsular, West Indian, &c.. Bank .\ustin (2 Eq. 435) Jo])l)'scase(W. N. 1867) r.nkivel v. Connell . . !232*, 670 Pennant and Craigwen Mining Co. (15 Jur. 1192) . 641, 646*, 647 Fenn (4 De G. M. & G. 285) JLiyhew (5 De G. M. & G. 837; Penney, >x parte . Penrose r. .Martyr . I'l'iitelow's case . i'.utland r. Gibson. I'en-y-vau Colliery Co. People's Garden Co. iV.'reival, ex parte . 465 . 231, 240, 253 13, 760 . . 266 624, «37, 648*, 886, 968 . . 676 . 865 I'ercy and Kelly Nickel, ice, Co. Hamlev (5 Ch. D. 705) Jenner (7 Ch. D. 132) I'crkins Peach Lead Mining Co. 676, 677 Perrett's case . . . .16, 773 I'orrier, ^'j/iftWr . . 352,852,8.53 Perring v. Dunston . . 138 i'. Hone 21 Perry v. Barnett . . 489 — V. Oriental Hotels Co. . 603, 675, 677, 706 I'ersee's case . . . . 773, 777 eruvian liailways Co. Crawley (4 Ch. 322) Robinson (4 Ch. 322) Peruvian Railway Co. v. Thames, &c.. Insurance Co. . .185, 204 I'etre V. The Eastern Counties Railway Co. . . . 150, 153 Pliiimiaceutical slociety v. London and Provincial Assoc. . . 138 J'holps V. Lyle . . 270, 302, 303 Plipuc V. Gillan . . . 499, 806 I'iiiiipson !'. Kgrcmont 255, 283, 290 Plulliii])s, rx parte (1 Sim. N. S. 605) . . ' 639, 646*, 652* Phillips, (X parte (2 De 0. ¥. & J. 634) .... (3 De G. & Urn. 3) . re (18 Beav. 629) . 488 620, 621, 64l, 647* 670, 671 PAOK Phillips V. Turner . . . . 541 Phillipson v. Tempest . 295 Phceni.x Life Assurance Co. . 176, 201, 236, 312, 319, 321 Burges & Stocks (2 J. & H. 441) Hatton (10 \\^ R. 313) Hoare (2 .1. & H. 229) Reeve (10 W. R. 817) Phosphate of Lime Co. v. Green . 179*, 311, 312, 520, 521, 523, 5.'!2 Phosphate Sewage Co. v. Hart- mont .... 355*, 361 Photographic Artists' Association 264, 662 Pickering's claim (0 Ch. 525) 149, 240, 722 . 556 453 598, 913 713 . 454 Pickering, ex parte (4 Ch. 58) V, Appleby V. Stephenson 321, 371 Piercy v. Roberts Pierpoint v. Brewer . . . Pilbrow r. Pilbrow's Atmospheric Co. . Ill, 129, 149, 247, 262, 264 Pirn's case . 521, 802, 813, 814, 829 Pinkett v. Wright . 456*, 465, 551 Pinto Silver Mining Co. . 684, 870, 882, 885 Pitchford v. Davis . 21, 393, 410 Pitman and Edwards, ex parte 190, 197 Pitts V. La Fontaine . . . 861 Planet Benefit Building Society . 633, 638, 639, 648*, 650 Plant, CI' parte Plaskynaston Tube Co. 456, 458 334, 396, 401, 787 . 677 . 423, 517 Bristol, 520, 596, 600 545 . 613, 662 Plas-yn-Jlhowys Coal Co. Plato Glass Co. v. Sunley Playfair r. Birmingham, &c.,Co. Plumbe V. Neild . I'lumstead Water Co. Hardinge (1 N. R. 40) v. Davis. . . . 661,706 Pocock, ex parte . . 642, 652*, 653* Pollock V. Pollock . . . . 547 y. Stables .... 514* Ponsonby's cnse . 124, 76:! Pool's case (35 Ch. D. 579) . . 783 Poole's executors, ex parte (8 Ch. 702) . . . 712, 894, 897 Poole Fire Brick and Blue Clay Co. (17 Eq. 268) . . . 673, 674 Hartley (18 Eq. 542) (10 Ch. 157) Poole r. Knott; . . . . ,540 r. Middletou . 465, 499, 500* v. National Provincial, ftc, Assurance Society . . 226, 328 Poole, Jackson and Whyte's case . 364, 377, 669, 787 Po])pleton, exparte , 114, 115, 135, 141 Port of London Assurance Co.'s ciuse ..... 258 Collingridgo (14 Jur. 1129) Portal V. Emmens . 44, 54, 59, 60, 104, 105, 107, 293, 301, 327, 422, 625, 791 Ivi AUTHORITIES REFKRRED TO. i'^' PAGE Portsmouth Banking Co. . . 694 Helby (2 Eq. 168) Horsey (2 Eq. 168) Stokes (2 Eq. 168) Pott V. Flather . . . . 498 Potteries, Shrewsbury and North Wales Railway Co. 904, 905, 907 V. Minor . . .906 Potter's case 692 Potts V. Bell . . . . y? Poulton V. London and Soutli- Western Railway Co. . . . 209 Powell V. Jessopp . . . 453 Powis V. Butler . 59, 129, 256, 295. 540, 812 V. Harding Powles V. Hargreaves . V. Page . Pratt V. Hutchinson . Preece and Evans's case Prescott, ex parte 68, 129, 284 . 727 . 109, 204 131, 132 852, 862, 866 60, 110, 288 V. Buffrey . 60, 110, 288, 289 V. Hadow .... 670 Preston v. Grand Collier Dock Co. 412, 532, 671, 580*, 596, 600 V. Liverpool, Ac, Railway Co. . 151, 152*, 153, 220, 258 I'. Melville .... 545 Price V. Anderson . . . . 545 V. Great Western Railway Co 194 V. Taylor . . . 233*, 234 Price and Brown's case . . 806 Prichard's case (5 De G. M. & G. 484, 495) . . 671, 714, 722, 850 Prichard's claim (2 De G. F. & J. 354) .... 715, 849 Prince v. Prince . . . . 228 Prince of Wales Life Assurance Society . . . 247, 854 V. Athenaium Insurance So- ^"ety .... 169* 1'. Harding . . . . 169 Princess of Reuss r. Bos . Ill, 112, 116, 135, 468, 619, 622, 636, 645*, 912 Printing and Numerical Register- ing Co. ... 678, 719, 720 Pritchard's case (8 Ch. 956) . 395, 784 (2 Ch. 714) . . . .774 Pritchard v. London and Birm- ingham, &c.. Railway Co., re Weis>4 706 Professional, &c., Building So- ciety . 619, 633, 639, 650*, 922 Professicnal Life Assurance Co. . 251, 737, 742, 860 Progress Assurance Co. . . 681 Prosper United Mining Co. . 94, 326 Palmer (7 Ch. 286) Pugh and Shurmau's case (13 Eq. 566) . . .59, 803, 808, 811 Pulbrook, ex parte (4 Ch. 627) . 704 (2 De G. J. & S. 349) . . 878 V. New Civil Service Co- operation . . .891 V. Richmond Consolidated Mining Co. . . 301, 567, 699, 704 Pulsford V. Richards Purcell's case PAi;e 1 19, 70, 71, li' QiTAUTZ Hill Gold ilining Co. r. Eyre 6U Quebrada, &c., Copper Co. . . 403 Queen's Benefit Building Society . tilSi, 655, 922 Queensbury Industrial Society v. Pickles .... 263, 915 Quilter, ex parte . . . .724 Radenhuiist v. Bates , . 2?0 Kadley v. Bramall . . . . 708 Rai' and Electric Appliance Co. 247, 249 Railway Finance Co. . . .700 Railway Sleepers Supply Co. 305, 417, 419 Railway Steel and Plant Co., ex imrte In re Taylor (8 Ch. D. 183) 677. tJ78 In re Williams (8 Ch. D. 192) ti77, 678, 71!' Railway Time Tables Publishing Co. . ■ \n Ralph V. Harvey .... 64 Ramsay's case . 127, 819, 820, 98') Ramsgate Victoria Hotel Co. v. Goldsmid . . .13, 15 — — e. iloutetioro . . . 13, 15 Ramskill v. Edwards 349, 374, :i76, ••!78* Ranee's case 371, 414, 430, 433, 694, 695, 696, 787, 854, 881, 885 Randell v. Trimen . . . 241 Ranelagh v. Haynes . . 588, 581) Ranger v. Cheat Western Railway Co 211, 227, 595 Ransford v. Bosanquet . . 286, 294 V. Copelund . . .137 Rapier v. Wright . . . . 84H Rasbotham v. Shropshire Union Canal Co 595 Ka.shdrtll V. Ford . . . . 242 Rastrick v. Derbyshire, &c.. Rail- way Co. . 60, 104, 291, 292, 293 4St), 489, 512 . . 544 . 828, 860 . . 565 72, 73 . 460 . . 488 125, 777 . . 841 . 916 197, 401 656, 679 Rawlins v. Wickliuni Read v. Anderson V. Blunt Reaveley's ca.se . Reddish v. Pinnock Redgrave v. Hurd Reece v. -Taylor . Rees V. Fernie Reese River Co. v. Smith Reeve's ca.se . Reeves v. White Regent's Canal Ironworks Co. Grissell (3 Ch. D. 411) Regent United Service Stores Bentley (12 Ch. D. 850) , 8S1, 885 . 241 588, 589 Iwiiy ^ 227, 595 '28tJ, m . 137 8411 tuon , 595 . 242 Kail- , 21*2, 293 72 JSO, 512 . 544 828, 860 . 565 72, 73 . 460 . 488 125, 777 841 . 916 197, 401 656, 679 AUTHORITIES REFERRED TO. Ivii ■ 301 H . V. H V. 1'. H V. 6U H V. ■ • 40:; ■ — - i'. ciety. (iiii, ^H V. 655, 92'J ■ -V. sty V. ^m V. . 263, 9Uj ^H V. ■ 721 ■ — f. • V. 270 H — — V. ' V. ■ ■ 708 ■ -V. Co. 247, ■ -V. 249 ■ V. ■ 700 ■ 305, 417, ^B — i;. 419 ■ V. ex ^m V. 183) 677. H ■ — V. D. 678 H i). . 192) 077, ^M 678, 7U> ■ — V. .shiiig ^B V. 123 ■ 64 ■ 0. 19, 820, »S>i ■ ^1 V. 13, 15 ■ — y. 13, 15 ■ V. !), 374, 376, ■ D. PAGE R. V. Arnaud .... 36 Aspinall .87, 488 Bank of Englnml 604, 605 Board . 268, 270 Bigg .... 220 Birmingham . 172, 173 Burgiss .... 268 Cambridge . . . . 605 Carnatic Railway Co. 42, 61 Caster . . 268, 270 Cawood . .130 Cemetery Co. 469 Chester .... 605 Clear 440 Cockermouth Inclosurc Commissioner.^ . . 605 Cooper . . . 311 Cumberland . 221, 265 De Berengcr . . . 488 The Derbyshire Railway Co. 282, 292, 296, 297, 604 Dodd . 131*, 245, 246 D'Oyly . . . 311 Eastern Archipelago Co. 99 Esdaile . . . 87, 433, 488 Frankland . . . 112 — i). TheFraternity of Hostmen iu Newcastle-upon-Tyiie 440 Gaskartli . . .300 General Cemetery Co. 63, 109, 604 Government Stock Invest- ment Co. . . . 311 Grand Canal Co. . 440 Grimshaw . o07 Gurney . . 87 Hammond 332 — u Harrald . 311 — V. Haythome ... 98 — I'. Hughes .... 98 — r. Ingall . . .173 — 11. Inns of Court Hotel Co. . 466 — c. James . . . 268, 270 — V. Kelk 310 — I', Lambouru Valley Railway Co. . 603, 604, 605 — u Langton .... 112 . . 98 Larwood Liverpool, Manchester, &c. Railway Co. . 61, 466, 60 604 — V. London Assurance Co. — c. Londonderry Railway Co. 416, 423, 425, 604 — I'. Mariquita Mining Co. 440, 604 — !■. Mayor of Stamford . 221 — 1'. Mildenhall Savings Bank 916 — i!. Miller .... 98 — V. Mott 394 — V. Osbourne ... 99 — - V. Pasmore . 98 — V. Pritchard . . . 268 — I'. Registrar of Friendly So- cieties . . 112, 917, 938 — r. Registrar of Joint- Stock Companies (10 Q. B. 839) . Ill, 113 (21 Q. B. D. 131) 61, S95, 606, 1022 R. PAGE Rochester . . 173 Saddlers' Co. . . . 604 St. Katherine Dock Co. 280, 604 Shropshire, &c. Canal Co. 604 Shropshire Union Rail- way Co. . . . .''>4, 61, 64 Stafford .... 605 Stainer 917 Stratton . . .131 Tewkesbury .300 Thomas . .311 Timothy .... 87 "" " . 916 280, 412, 604, 605 V. Watson .... 83 V. Webb . . i31», 132* i\ Whitmarsh . Ill, 117, 128, 131, 138 w. Whitstable Co. . . 604 V. The Wilts and Berks Canal Co. . . . 440, 604, 605 c. Wimbledon Local Board. 311 0. Windham . . . . 605 ■0. Wing . . 423, 425, 604 0. Worcester Canal Co. . 604 V. Tralford V. Victoria Park Co V. York . Beid's case Keid V. Allan V. Explosives Co, Beidpath's case Reml'ry v. Butler Rennie v. Clarke V. Morris . V. Wynn Reuss (I'rincess of) v. Bos . . 605 . 39. 810, 828 . . 248 . 730'", 731 . . 14 496 . . 145 501, 503, 510 . . 145 111,112,116, 135, 468, 619, 622, 636, 645*, 912 Renter v. Electric Telegraph Co. . 160 Reynell y. Lewis Reynolds v. Ba.s.sett Rlicam V. Smith Rhodes, ex parte V. Dawson . V. Forwood . Rliydydefed Colliery Co. liioa Gold W^ashing Co. 274 128, 144* 96 456*, 563 41, 807 . 661 . 247, 249 . 638, 652* 626, 649*, 654 Richard v. Home Assurance As.so- L'iatiou 762 Richards & Co. . 677, 678, 711, 719 Richards v. Home Assurance As- sociation . .14, 770 Richardson's case . . 803, 81 1 Richardson v. Hastings . . 565, 621 V. Larpent . . . 377, 573 V. Williamson . . 242, 920 Richmond's case (4 K. & J. 305) . 79, 86*, 412, 519, 532*, 534, 839, 845 Richmond's Executors' case (3 De G. & Sm. 96) . . 518, 838, 862 Richmond's Executors (13 Jur. 727) 814 Richmond Hill Hotel Co. Elkington (2 Ch, 511) King (3 Ch. 10) (4 Eq. 566) Pellatt (2 Ch. 527) lifiNB Iviii AUTHORITIES REFERRED TO. liickctts V, Bennett V. Bowliay Kiddell, ea; parte . Uiddick v. Deposit, ftc. Ass. Co. . Itidgway v. Philip V. The Security, he. Ass. Society . . . . . Ridley r. Plymouth Gviuiling and Baking Co. . 154, loO, 200, Rigby i\ Connol . . . . — - V. Dublin Trunk Railway Co. PAGE 192 295, 540 . 749 706 65 291 Rio Grande do Sul Steani.ship Co, Itisca Coal and Iron Co. Rit.so".s case .... Hivcr Steamer Co. Mitchell (6 Ch. 822) Kivington's case .... lloberts' case (3 De 0. & S. 205, 2 Mac. k (>. 192 and 14 Jur. 539) lioberts. 226 528 291, 296 674, 727 710 13, 770 824 766, 778, 861 ex parte (1 Drew. 204) 16, 16, 766, 861, 863 V. Crowe . . . 710, 821 r. Ebcrhardt . . .603 Robertson v. Sheward . . . 268 Robinson, &c. lirewery Co. Sidney (13 Eq. 228) Robin.son's case (4 Ch. 322) . 14, 863 Robinson's Executors' case (2 De G. M. & G. 517) . 759, 776, 782, 812 (6 De G. M. & G. 572) 245, 426, 428, 537, 848 . 461 . . 465 501 . . 269 . 317 . . 920 . 568 78, 590 251, 671, 672 Robinson v. Burbridge ('. Chartered Bank . V. Mollett . V. Sheward V. Thompson V. Trevor Robson V. Dodds c. The Earl of Devon V. McCreight Rochdale Property and General Finance Co. . . . 684, 708 Roe f. Fuller .... 269 Rotte V. Roscoo . . . . 475 Rogers' case (3 Ch. 633) . 17, 778* Rogers' trusts (1 Dr. & Sin. 338) 547 Rogers, exparle {\5C\\. D. 207 . 488 — - v. Oxford, &c. Railway Co. 321, 568, 601 Rolling Stock Co. of Ireland Shackleford (1 Ch. 567) Rolt V. Hopkinson . . . . 459 Rome V. Young .... 727 Romford Canal Co. . 168, 171*, 193, 194, 741 Roney's case . 301, 313, 791, 797 Roots r. Williamson . 476, <77, 479 Rose & Co. V. Gardden Lodge Coal Co 673 Rosewame v. Billing . . . Ross V. Army and Navy Hotel Co. ' V. Estates Investment Co. V. Moses 674 488 193, 198 75* 511 Rossmore v. Mowatt . . 321, 365 Rotheram Alum, &c. Co. . \\] Rotherhithe, &c. Society . . iiij Roiith v. Webster . . :,J5| Royal Bank of Australia Boyds (1 De G, & J. 223) Cockburn (4 De G. & Sm. 177) Connell (29 L. J. Ch. 649). Latta (3 De G. & Sm. 186) Meiix's Executors (2 De G. M. i i, 522) (4 Do G. & Sm. 331) Robinson's Executors (6 De G. II. i G. 572) (2 De G. M. & G. 517) Sutton (3 De G. & Sm. 262) Walker (15 .lur. 853) Royal Bank of India's case 43, 167, ";) 806, Si'i Cuth- W. I m\ m\ Mil ,83; Royal Bank of Scotland bert Royal British Bank (3 Jur. N. S 1114) 6;i| Brockwell (4 Dr. 205) Frowd (9 W. R.) Mixer (4 De G. & .1. 575) Nicol (3 De G. & J. 387) Walton & Hue (3 Jur. N. S. 853) r. Tuniiiand 165, 167*, 169*, Uj, 190, ISli Royal Exchange Assurance Co, v. M«ore . . . . . — ■ — V. Vaughan Royal Hotel Co. of Great Yar- mouth . .... Royal Liver Friendly Society Ruby Consolidated Mining Co. Askew (9 Ch. 664) Rudge V. Bowman . 488, 494 Rudow V. Great Britain Mutual Life Assurance Society . 621, 677, 682, 985 Rugby, Wanviek, &c. Railway Co. Preece & Evans (2 De G. M. .'i: G, 374) Rule V. Jewell . . 326, 535, 582 Rumball v. Metropolitan Bank 67, 472, 47J Runmey's case . . . .735 Russell V. Croysdill . . 2(i:J, 706 c. East Anglian Railway Co. 603 I'. Recce .... 240 V. Wakefield Waterworks Co. 563, 566, 570, 571, 572 Russian (Vyksoiinski) Iron Works Co 20*, 'iS Kincaid (2 Ch. 412) Stewart (1 Ch. 574) Taite (3 Eq. 795) Webster (3 Eip 740) Whitehouse (3 Eq. 790) Rutherford's case . . 806, 835 Ruthin & Cerrig-y-DniiHian Rail. Act . 901 Rutter V. Chapman . .98 Rye's case .... 20*, 772 Rylaud «. Delisle . .428 I .Sanderson's Paten .•^.irgood's claim . Saunders' case Savin V. Hoylake Saxon Life Assura PAi;[l S21, 36.; I • u; • I'll;! 4K . 693 f m Jo. 88, 494 S3; Utllill . t)21, 671, 682 985 [ly Co. G. M. V;G, >6, 535 m k 67,472, m , 735 . 2t;:i 706 'Co. 603 24(1 8 Co. 563, 0, 571, 572 orks 20 •,•26 806 835 liiil. . 904 98 20*, 772 428 AUTHOHITIES REFERRED TO. Ik IgADLONifeRE Hotel Co. . . Isadler's case . ISahlgreen's and Carrall's case jst. George's Building Society 1st (icoige Steam Packet Co. ■ CioppT (1 Do G. M. & G. 147) Hamer (2 Do G. M. & G. -366 aud 3 De G. & Sni. 279) Hennessey (2 M. & G. 201 antl 3 De G. & Sm. 191) Litchfield(3DeG. &Sm, 141) Maguire (3 De G. & Sni. 31) Pini(3 De G. & Sm. 11) ?t. Jamcs'.s C'lul> . . .617 I.St. Mary Icbone Joint Stock liank- ing Co. Hcc Marylebone. Walker (8 De G. M. & G. 607~ I'AGE . 673 42, 808 14, 841 619, 647* 620 I St, Nazaire Co. I,*;!, Thonia,s' Dock Co. . I !. Holland . . . 117, 498 V. Port Philip (iold Jliuing Co. . . . 64, 484* — - 1'. Rowley . . 416, 418, 498 V. Simmons . . . 114 Shears v. Jacob . . . . 203 Shedden v. Patrick . . 283 Sheehy v. Professional Life Assur- ance Co 914 Sheerness Waterworks Co. v. Poison 708 Sheffield's case (John.s. 451) 73, 84*, 85*, 86*, 166, 772 Sheffield, The Earl of v. London Joint Stock Bank . . . 481* Sheffield, &c., Gas Co. v. Harrison 499, 586 Sheffield and Hallamshire Ancient Order of Foresters Fountain (11 Jur. N. S. 553) Ix AUTHORITIES REFERRED TU. I'AOE Shoftiold, &e. Railway Co. v. Woodcock . 49*, 51, 108, 328,329, 416, 419, 421 Sljcfliold Nickel Co. v. riiwiu 16B, 334, 4-M ISliodicsld and H. York roi'inununt lUiildiiig Society . . . . 524 Sliupherd's cuHo '. 121, 4«6, 833, 8;).') Shei>heid v. (iillo.spir . 493, 505, .110 Sheppiird u. Muipliy 491, 506, 50(5, 510 — V. Uxciiford 133, 135, 139*, 565, 593, 594 i\ Scinde, I'unjiiub, and Delhi Hiiilway Co 870 Sherrington's ciuso . . . 779 Sherwood Loan Co. . t)27, 642, 647* Smith (1 Sim. N. S. 165) Slieweir.s case . . 747*, 799, 804 Shield V. tJrent Northern Railway Co 38, 911 Shields Marino Insurance Associ- ation 621, 665 Leo & Moor (5 Kq. 368) Ship's case . . 20*, 25, 122, 62.'), 749, 7.'i4, 772 Sliip r. Croskill . Shipniaii's case Sliii'reli"s case Sliorlridye v. Hosamjuct Shnipnuirs case Shrewsbury, Karl of v, Stall'ord Railway Co. 71*, 89 . . 836 . 730*, 731 56*, 61, 423, 500, 596 . 810, 828 North 147, 150, 161, :j3* Shrewsbury and Hinningliani Rail- way Co. V. North Western Railway Co. . . . 202 r. Stour Valley Railway Co. 323 Shrewsbury and Leicester Direct Riiilwiiy Co. Kiddell (1 Simons, N. S. 402) Shiimptou V. Sidmoutb Railway Co 292 Shropshire Union Railway and Canal Co. v, Anderson 59, 60, lOS, 414, 421 V. Regina . 54, 64, 104. 485 Sibley r. Minton . 95, 560 Sibson r. Kdgworth 33, 565, 567 Siehell's case (3 Ch. 119; . 124, 125, 806, 836 Siehell, cxparte (1 Sim. N. S. 187) 765*, 860*, 861, 862 Siddall, >r . . . . 115, 135 Sidney's case . 761, 763, 7K, 797, 839 Silber Light Co. c. Silber . . 573 Silkstone and Dodworth Iron Co. 680 Whitworth (19 Ch. D. 118) Silkstone Fall CoUiery Co. . . 877 Silver Valley Mines (18 Cli. . . 472) 615 (21 Ch. D. 381) . . . 863 Simm V, Anglo-American Tele- graph Co. . 54, 60, 64*, 484, 787 Simons v. Patchott . . 241 Simpson's case (9 Eq. 91) . . 122 (4 Ch. 184) . . .778 I'Ai.il Simpson's claim (36 Ch. D. 632) u; I m Simpson v. Deuison . 321, 323, 571 V. Lord Howdon . isjl i\ h'and V, Westminster I'alaco Hotel Co. . . !i02, 317, 666, 67(1, liiji Singleton v. Solwyn . . . 5;{ Sir John Moore (lold Mining Co. j'j Skegness Tramway Co. . • . It; Skinner r. City of London Marine Insurance Corporation 63, 124, 47(i 49il V. Lambert . 267, 427, 561 1 Slatter's Executors . . . 688, ! Slattery's case . • 1!| Slim V. Crouchor ■ . 213l Small ti. Attwood 271, fiStl ?>. Smith . 200, Il2j| Smallcombc's case . 19*, 522, .52:(, Sniallpago's ease Smart u. West Ham Union . . 221 1 Smith's ciuse (2 Ch. 604 & 4 L. R. H. L. 64) . 123, 771, iV, (1 Ch. D. 481^ . . 8!2 - (4 Ch. 611) ."13, 759, 761 (4 De G. & .). 544) . . 6i Smith, ex parte (\ Sim. N. S. 165) 61S (3Ch. 125) . . 715, 743, 86i ■ (39 Ch. D. 546) . 14, 156, 15?, 158, ;)0J Smith, Fleming & Co. 's case . 685, 7W, 1 731' Smith, Knight & Co., re . . 672, 691 [ Ashbury (5 Eq. 223) Gibson (4 Ch. 663) Weston (6 Eq. 238) (4 Ch. 20) Smith, Mackrill, re (3 Ch. 125) . 678 Smith V. Anderson . 114,135,141 r. Birminghniii OasCo. . 209 0. Cannan . . . . 519 V. Chadwick . 21, 71*, 89, 69(1 — — ('. Cork and Bandon Railway Co 401 V. Goldsworthy . 267, 299, 320, 322, 393*, 427, W V. Hull Glass Co. . 154, 159», 16(i, 161, 163,168*, 178*, 205 r. Lloyd . . . .916 I'. Manchester (Duke of) . . 321, 671, o;*9 I'. Morgan . v. rilkmeton . I'. Reese River Co, 7'il . . 920 . 73, 75*, 76, 1 213, 428, 59? .520, 526, m I . 550 40 Snell's case . Sneyds, ex part: . Snook V. Watts 8ociet« Generale de Paris Geen (8 App. 606) Walker (11 App. 20) V. Tramways union Co. . 205 V. Walker . 205, 454, 470, 472, 476, 477*. 479*, 490 Society of Practical Knowledge v Abbott . 163, 278, 315, 370* AUTHORITIES REFERRED TO. Ixi I'AqI B32) uij i23, 571, f*l ■ liji • ■ 51:1 Hotel 166, 57(1, Hijil • m K Co. 8;j ■ • it;l lai'iiMi 53, 124, m\ 491 1 !67, 427, Mil . «88, ! ISl ■ . 21il 271, 561 1 . 200, 92il |2'2, 52.-), m\ ■ ■ m\ ■ 221 L. R. 23, 771, nil . . 81! 53,759,761 61)1 5. 165) 6is| '15, 743,86; 14, 156, isr, 158, ;iOi| . 685, ;u!i, 73;' , 672, 691 25) . 678 4, 135 HI 209 519 1*, 89, 699 Iway ■ • 101 7, 299, 320, ;*, 427 M.I 159», 160, ■, 178* 205 916 321, 571 5;<9 721 920 3, 75* ,76, 3, 428 597 ), 52« 840 660 ■ ■ 40 205 470, 472, 479* ,490 3 1; 315, 370' I'AOR bmcrville'H case . 60,122,271,769 kiniM V. Currid . . 98, 454, 870 bulby V. Smith . ... 267 loiithall V. Hritiah Mutual Lift' rvsaiimtice Society . 367,598,601, 894, 895 biilliiiiii|>ti>'> Diii'k Co. V. Ariiott 409 . D, Uichaid.s . .W, 106, 313, 409*, 414 biithampton, Uh of Wi^ht, kc, r.St('iinil)i)iit C(i. Bird (4 DpU. J. & S. 201) Hopkins' Kxccutors (4 Uo O. ,1. & S. 342) WoM. (!».Iur. N. a. 856) - I'. Iliiwliiis .... 264 Lutli iiiirriilo Sluto Quarry Co. . 663, 882, 890 (jutli Blackpool Hotel Co. James (8 Eq. 225) Migotti (4 Kii. 238) oiitli Ciiroliiiii Batik 0. Case , 909 (lUtli I'luhaiu IJrc.wury Co. . . 118, 261, 322, 334, 344, 396, 405 loutii Durham Iron Co. Smith {11 Ch. D. 579) k)uth - Kastern ilailway Co.'s claim 806 feduth - Kastern Railway Co. v. llebbkwhiti! . 300, 409, 411, 414 poiitlicrii Ilailway Co. . . . 279 Bouth Essi'x K.stiiai'y Co. Chorloy (11 E(|. 157) Piiiiif& Layton(4 Ch. 215) ^(iiith E.saex Gas Light and Coke Co. liulctt (2 J. k U. 306) ."itcars (.Johiison, 480) Bouth of Kranco Co. Baron de Hoville (7 E.]. 11) ^outh of Ireland Coll. Cc. v. Waddh- . 220, 222, 223, 228 iBoiith Kt'iisington Co-o|U'rative Stores .... 680, 681 feoutliLady liortlia Mining Co. 619,646* Bouth L'aidiarran Colliery Co. 'I'gon (12 Ch. I). 503) IBouth LoikIoii Fisii Market Co. . 4f'i4, arir Stears i\ South Es.sex Gas Co. Steele v. Harnier . . . . V. North Metropolitan Rail- way Co. r. Sutton Gas Co. . . . 307, 879 226, 328 328 185 Steigeuherger v. Carr . Stent I'. Bailis . . . . Stephen, re (2 Ph. 562) Stephens, ex jyartc (3 Ch. 753) V. De Medina Stevens, re (Ir. Rep. 6 Eq. 604) . V. Guppy . . . . V. Mid Hants Railway Co. . V. Midland Counties Railway Co 210 V. South Devon Ilailway Co. 317 401, 429, 480, 572, 600 I Stevens' Hospital v. Dyas . . 22S 324 442 25 494 606 727 498 906 492 906 ? 1 Ixii AUTHORITIES REFERRED TO. I'AUE Stevenson, ex jmrle (32 L. J. Ch. 97) 855 V. McLean . . . . 14 Steworil V. Dunn . 110, 268, 269 I'. Greaves . . . 268, 604 Stewiirt'H cose (1 Ch. 574) . 21*, 20*, 122, 312, 772 (1 Ch. 511) . . 520, 532 Stewart «. An}{lo-Californian Gold Co. . . . 45, 59, 64, 629 r. Cauty . . . 498, 508 Stirling's case . . . 817, 818 8t.irlin-< i\ Maithuid . . . 729 Stock's case (2 J. & H. 441) . 178, (22L. .1. Ch. 218) (4 Do G. J. & 8m. 426) 180, 199 765, 7fi6 301, 790, 795 . 534 585*, 587 679, 721 124, 458 822, 830* 220, 690 Stocken's case Siooker v. Weddorburn Stockton Iron Furnace Co. Stockton Malleable Iron Co, Stoke's case Stone's case . Stone v. City and County Bank . 753 776, 877, 880 Storforth Lane Colliery Co. . . 686 Storm r. Sterliuf; . . . . 230 StraH'on's Executors' case . 52, 316, 751, 758*. 812, 824, 860 Straker v. Wilson . . . 545, 546 Strand Music Hall Co. . . 193 European and American Finance Co. (35 Ueav. 153) Strang, ex parte . . . 557, 743 Stranton Iron and Steel Co. . 309, 464, 465, 466 Barnett(19Eq. 449) Stratford and Moreton Railway Co. V. Stratton . . 416, 417 Stray v. Russell . 467, 491, 493, 496, 501, 506*, 514 Strick V. Swansea Tin Plate Co. . 528, 843 Stringer's case (4 Ch. 475 & 498) . 278, 414, 430, 433, 694, 695, 0'J6, 787, 854, 863 Stringer, ex parte (9 Q. B. D. 436) 459, 466 Stroud V. Gwyer . . . 543, 546 Stuart V. Lord Bute . . . 441 Stuart's Trusts, re . . . . 436 Stubb's case .... 733 Stubbs V. Lister . . . 532, 535* Studdert v. Grosvenor . 310, 321, 322, 571, 598, 599 Studley, ex parte . . . . 765* Stupart V. Arrowsmith . 317, 583*, 594 Sturge V. Eastern Union Railway Co 401, 569 Sturt & Co Pearcy (13 Eq. 309) Styles V. Cardiff Steamboat Co. . 205, 210 Suburban Hotel Co. . 632, 633. 634, 639, 641, 650* PAf,l;| Suche&Co. (Joseph) . 685, 719, ;j' Sudlow & Kingdom, re . • . 6;i ■ Sudlown, Dutch- Ithonish Railway Co. . . . 528, '/M Taunton v. Royal Insurance Co, wj 163, 318, 599, Taurine Co. . 156, 664, 665, 822, S2l| 825, 832, Siil Tavarone Jlining Co. Pritchard (8 Ch. 956) Tavistock Ironworks Co. Ly,ster (4 Eq. 233) Tayler v. Great India Peninsula Railway Co. . 62, 473*, 486, «;[ Taylor, Ex2)arte (14 Ch. D. 398) 3ol',| 3etl - — V. Blakelock . . 4;i| ■ V. Bowers . . . , 19| V. Chichester and Midhurst Railway Co. . . , ISfB V. Crowland Gas Co. 38, 148, 2S(| ■ V. Dulwich Hospital . 220, 2S1| v. Hughes 52, 56*, 61, 423, m 560, 596, 5?;[ — V. itiii m - — 11. Lendy .... 13i| V. Pilsen, &c., Light Co. 334, m 402, 60!l ti. Rundell . . . 441, 5«| AUTHORITIES BEFKRHED TO. Ixiii FACl] 685, 719, iiS Rnihvny 528, y09, BwildiriK 9, 627. 876, !i*J ranee Co, cry Co., 85) . ill fiijT .S. 400)(ir iistraliun , 472, m\ \^;\ ien . ; 1^ • ■CI • . .Ill . 532, fi.'M, ffl 207. jr' . 2i;j . 377, t!«9, ;i:| i, 135, 140, HI . IS . 123, 811 8?| 247, 466, m vlor t'. Salmon . V. Stniy . - V. Tayloi' . isilalc'.s cu,so et(!'.i ciwo I'AOK 566 . . 507, 613» . 813 402, 526, 530, 840 732, 735 I, 412 854 .S«i 4) W. ■« ancc Co. M!. 3, 318 599, W. ,665, 822 Ml 825 ,83' !,8i! ninsula 473*, 486, «;[ D. 398) m . . m lidliurst . M 38, 148, 2S(,[ 220, 2:ll , 61, 4'i3, 468,1 560, 596, 5?;l . . 2Jt| . 13i| Co. 334, 3«,l 402, 60!l 441, 5>il ftgiinioutli, &c.. Shipping Asso- fciatiou. I .Martin (14 M-^ ,„„ ..,., lU-Kmi)h Construction Co. . '103, 76i ilcgnii)h Ue.si)atch Co. v. McLean 24 1 , llforil V. Metropolitan Board of f\Vork.s 324 Inio Valley Railway Co. Forbes (19 K(i. 353) Upcstr. Kiiner . 453,498,499 Liint r. Elliott . . . ■ }iO Innaiit V. City of Glasgow IJank / u.i, [ 776 Lper i: NichoUs .452 Vrrell'scase . . ■ • 126, 148 feriell ('. Hutton 148, 149, 714, 722, 724 bversliam v. Cameron's Coalljrook fco ■ l"'5i '-^^^i 323, 388 bmcker v. Hardy . . . 488, 501 haiues Haven Dock Co. v. Hall 221, 265, 415, 428 - ,.. Rose 157, 174*, 299, 409, 415, 428, 604 ijanies I'late Glass Co. v. Land liind Sea Tel(!Kraph Co. 673, 675, 699 hiuwf Tuiniel Co. v. Sheldon 19, 420 hetl'oril School case . . . 312 heys, ex park 697, 719, 739, 740, 744 homas's case (13 E Ixiv AUTH0RITIB8 REFERRED TO. I'ADR 711, 883 Tunis Kiiilway Co, . Tunnel Mining Oo. Pool (36 Ch. D. 679) Turner, ex parte (3 Do O. k J. 46) 48S (3 U« O. & 8. 127) . . . COO k .FnnioH, ex parte (3 Do (J. k 8. 127, nnd 2 Mac. k G. \W) 622, C23, 64a», (i«() V. Hnrlnao .... fii)H V. Hill 61>3 V. Mvtropolitan Live Htock I'o 45 r. Tyiickc .... 593 Turncy v. Hiiyiuy 440 Turnloy k Oliver, ex parte . . 698 Tiirqunnd v. Kirby . . 707, 813 V. MiirHhall . 311, 371, 373, 374, 370, 377, 378, 389, 433, 441, 707 TwycronH v. Grant . 70, 90, 92, 496 Ui.sTKU Land Co., Liniitoil . 693 Ulverstoni' Railway Co. r. Com- niissioimi's of Inland Uuvonuo . 469 Uudorhill v. Dov«roux . 281 Underwood's cnsd . 664, 710, 846, 849, 852, 868 Union Hunk of Calcutta Wat.son (3 Do (!. & Srn. 253) Union Hank of Kingston-upon- Hull . 208, S81, 883, 896, 972 Union IJank of Manulir.stcr .lackson (12 Eq. 354) Union Hank of Scotland v. Na- tional Hank of Scotland . . 459 Union Cement and Hrick Co. Tulbrook (4 Ch. 627) Union Uiiblifr Co. v. Hibbard . 910 United Kingdom, &.o. Huilding Association . . . . 704 United Kingdom Mutual Steam A.ssurancc Assoc, v. Nevill 46, 428 United Kingdom Shipowning Co. Felgatc (2 Do (J. J. & S. 456) United Ports and General Insur- ance Co 660 Adams (13 Eq. 474) Beck (9 Ch. 392) Even (16 Eq. 354) Perrett (15 Eq. 250) Wynne (8 Ch. 1002) V. Hill . . . .264 United Service Co 666 Hall (5 Ch. 707) John.ston (6 Ch. 212) United Stock Exchange, Limited 659 Pliilp & Kidd (28 Ch. D. 183) Unity General Bread and Flour Co. Hirtzel (2 De G. F. & J. 653) Unity Joint-Stock Banking Aasoc. King (3 Dc G. & J. 63) Universal Bank, re ... 662 Universal Banking Corporation Gunn (3 Ch. 40) Harrison (3 Ch. 633) Rogers (3 Ch. 633) Stracy (6 Ch. 492) FAOI 7)1 Univorwil DiHinfttctor Co. Universal Life A-ssuranco Co. Universal Non-tnriff Fire Insur- ance Co. Hilso(»Cli. I). 774) Universal Piovidont Life Assoc. Hell (22 Heav. 35) Daiuell (22 Heav. 43) (2) (23 Heav. 568) Holt (22 Heav. 48) Muiit (22 Heav. 55) Universal Salvage (Jo. Mansfield (2 M. k G. 57) (3 De G. k Sm. 58) Murray (5 Do G. M. & G. 74(1) Sharpu8(3 1)»G. & Sm. 49) Smallbono (14 .Iiir. 103) Woodfall (3 Do G. & 8m. 63) Universal Tontine Life Insur. Co. Dee (3 Do G. & Sm. 112) Upfdl's caso(Hutton v. Uplill, 2 H. L. C. 674) 764', 705*, 76? - (1 Sim. N. S. 395) 851, Ml Upton V. Brown . . . ■ M Uruguay Central k Hygueritas Railway Co. of Monte Video . 625*. 636, 648* Vale of Neath and South Wales Brewery Co. Gordon (3 De G. & Sm. 249) Hitchcock (3 De G. it Sm. 92) Hollwoy(l De G. &Sm. 777) Koenc's Executors (3 De G. Al. id 272) KUiht (3 De G. k Sm. 210) Morgan (1 De G. k Sm. 750 and 1 M. & G. 225) Kichmond'a Executors (3 De G. A Sm. 96) Walters (3 De G. k Sm. 149) No. 2 (3 Do G. & Sm. 244) White (3 DoG. & Sm. 157) A'^ale of Neath, &c. Joint-Stock Co. Lawes (1 De G. M. & G. 421) Vallee v. Dumcrgue . . 914 Valpy & Chaplin, ex parte . 203 Vance v. Tne East Lancashire Railway Co. . .321, 32' Van Diemen's Land Co. v. Cock- erell Vane v. Cobbold . . . v Van Sandau v. Mooro 266, 56l, 6' . Varney v. Hickman . . . 1 ;;' Vcnablcs.v. Schweitzer . . (i!il Venezuela (Directors of Central Railway Co. of) v. Kisch . . U Vertue v. East Anglian Railway Co 191 Vice V. Anson 21, 65», 96*, 205, 453 Victoria Permanent Benefit Build- ing, &c. Society . Empson (9 Eq. 597) Hill (9 Eq. 605) Jones (9 £q. 606) AUTHOmriBS REFEllIUiU TOt IXT 57) i ■■ f)8) r :\ & (J. 7ir. ) ' , 1 III. 4U) )H) '1 Sin. OH) sur. Co. '^J 12) ' "w Jplill, 2 '>! 64*. 705' . '''^ J . 85 . ^''1 "1 Mi m doo 62V "'i 630, 6^' "1 1 WaloH j.4^ 11. 24t») Sill. ii2) ':y^^M 11. 777) Je G. M. ku ^B 210) m. 750 (3 De (1. A ■{ II. 149) • V Sill. 24 I ) A 157) ock Co. f| J. 421) i^ffl OH M| 'jii" ^H ;a.shiro 521, S-2 Cock- d, 561, : "^^1 60U' ^H , 13 ay Co. 64, 60, 61, 63, 108, 471 Fai-e V, Camberledge . . . 462 L.C. PAOB Water- 324, 601 264 Ware r. (tiand Junction works i». Reguiit'H Canal Co. Waring, cj-. parte (W, N. 1806, 890) .... (19 Vesoy, 346) . . . Wurkworth Dock Co. I'hillinH (18 Buav. 629) Warrant finance Co. 'sca.so (5 Ch. 88) (4 Ch. 643) .... (No. 2), (10 Eq. 11) . 726, WaiTon's Blacking Co. IVntclow (4 Ch. 178). Warwick and Worcester Uailwiiy Co. (13 Jur. 651). . . (27 L. J. Ch. 736) I'arbury(3DeO. F. &J.80) Poll (3 Do G. & Sm. 170) Prichard (5 De G. M. & G. 495) Wiishoe Mining Co. v. Fergu.soii . Waterford, Dungarvan and Lid- more Railway Co. (5 L. R. Ir. 103, 584) .... Waterford, Ac, Railway Co. (Ir. Rep. 4 Eq. 638) . V. Dalbiac .... V. Logan . . . V. Pidoock 45, 46, 50, 59, 60*, 107, 108, 420, 421 Waterhouse v. Jamieson. . 396, 787 Waterloo Life Assurance Co. (31 Beav. 686) . 127, 624, 678 (4N. R. 207). . . 697 Carr (33 Beav. 542) Paul & Beresford (33 Boav. 204) Saunders (2 De G. J. & S. 101) Watorlow v. Sharp . . . . 191 Waters v. Taylor. . . 576, 600 717 727* 09U 726 726 020 72:} 263 436 903 411 422 106, Watkin, ex parte Watkins v. Clark V. Huntley . . . . Watson, ex parte (re Calcutta Bank, 3 De G. & S. 263) 622, 6S9 (21 Q. B. D. 301) 704 276 494 661, 661 163, 177, 189, 190, 191, 919 462 . 669, 670 35*. 145 Watson V. Black . V. Cave . V. Charlemont . V. Bales 417, 418, 424*. 532, 634*, 697 V. Mid Wales Railway Co. . 275 V. Spratley . . . 449, 463 Watson, Kipling & Co. . . . 682 Watts V. Jetfryes . . .461 V. Porter . . . . 461 V. Salter . . . 33*, 34* Weald of Kent Canal Co. v. Robin- son 426, 637 Wear Engine Works Co. . . . 664 Wearmouth Crown Glass Co. . 681 Webb's case 62 Webb V. Commissioners of Heme Bay. . . 163, 171*, 193 V. Earle. . . . 400, 435 V. Taylor . . . .268 Ixvi AUTHORITIES REFERRED TO. PAGE Webb V. Whiffin . 394, 754, 821, 851, 856, 367 Webster's case (2 Eq. 741) 21, 25, 26*. 122 772 (32 L. J. Ch. 135) . . . ' 843 Wedgwood Coal and Iron Co. . 711, 881 Anderson (7 Ch. D. 75). Weekley v. Weekley . Weeks v. Propert Weikersheim's case Weir V. Barnett . V. Bell . Weiss, re . Welliind Railway Co. 452, 453 . 89, 242 5y, 758, 806, 807 . 244 . 88, 89* 263, 295, 671 . Berrie 417, 909, 910 414, 427, 637 c. Blake. Wellington Reversionary Annuity and Life Assurance Soc. Conquest (1 Ch. D. 334). Wells V. Alayor of Hull . . . 223 V. Williams. ... 37 Welsh Flannel and Tweed Co- 847, 879 Welsh Potosi Mining Co. . . 613 Birch (2 De G. & J. 10). Clarke (2 De G. & J. 245). Lofthouse (2 De G. & J. 69). Tobin (7 W. R. 4). Wenlock (Baroness) v. River Doe Co. 112, 162, 163, 164, 165, 176, 187, 189*, 191 Wentworth v. Chevell. . 537, 544 Werle & Co. v. Colquhoun . . 911 West's case] . , . 191,192 Wcstbourne Grove Drapery Co. (5 Ch. D. 248) . . 720, 732 (W. N. 1878, 195) . . 885 We.stcomb's case . . . . 863 West Cork Railway Co. . . 905 West Cornwall Railway Co. i». Mowatt . . . 105, 192, 396 West Cumberland Iron and Steel Co 665 1029 West Devon Great Consols Mine (27 Ch. D. 106) 325, 658, 705 (38 Ch. D. 51 ) . . . 699 AVest of England Bank . . . 720 Booker (14 Ch. D. 317) Bro^vn (12 Ch. D. 823) Budden and Roberts (12 Ch. D. 288) Hatcher (12 Ch. D. 284) West of England and South Wales District Bank. Swansea Friendly Society (11 Ch. D. 768) Dale & Co. (11 Ch. D. 772) West Ham Distillery Co. Whittel (2 De G. & J. 577) West Hartlepool Iron Works Co. (10 Ch. 618) . . . 637 (10 Ch. 62S) . .660 (84 L. T., N. S. 670) . . 682 Gray (1 Ch. D. 664) West India Steamship Co. . . 344 West Jewell Tin Mining Co. Weston (10 Ch. D. 679). West London Commercial Bank . 717 West London Commercial Bank V. Kitson .... 231, 2): West London Railway Co. v, Bcr- ^^^ nard 31)^"' West Riding Union Banking Ci. ^'• Turner (19 Ch. D. 105) 1 West Silver Bank Mining Co. . 'hi West Surrey Tanning Co. 640, Oi West V. West . . . 108, k Western Bank of Scotland v. Addic ; ill V. Bairds .... 373' Western Benefit Building Society 65i | Western of Canada Oil, &c. , Co. (17 Eq. 1) 630, 635, 636, 637, ( (6Cli. D. 109) . . .mi Carling i20 Eq. 580 and 1 Cli. D. 115) Hespeler (1 Ch. D. 115) Walsh (1 Ch. D. 115) V. Walker .... Western Life Assurance Society (11 Eq. 164) . . . . 73il (5 Ch. 396) . . 702, JOl Willett (5 Ch. 396) Western Suburban Build' ag Society V. Martin . . . . S2I Westmau v. Aktiebolaget, &c. Fabrik sO/ Westminster Silver Lead Ore Co. (Duchess of) . . . 749, ;>! Weston's case (10 Ch. D. 579) . 36;, 696, 69) (4 Ch. 20, and 6 Eq. 238) . 46). 465, 665, 821, 825, 827, 83). 835, 878, 88} (5 Ch. 614) 800, 803, 811, 82) Westropp V. Solomon . . 494, ill' Wexford and Valencia Railway Co. Fisher (3 DeG. & Sm. 116) . Wey and Arun Junction Canal Co. 618, 64;' Whaley Bridge Cc. •. Green 347, 3)9. 350*, 361' Wheal Anne Mining Co. (10 W. R. 380) 61j (30 Beav. 601) . . 653' Wheal Buller Consols 148, 301, Tfi 793, 795' Wheal Lovell Mining Co. Wyld (1 M. & G. 1) Wheal Unity Wood Mining Co. Chynoweth (15 Ch. D. 13) Wheal Virtue Mining Co. . . 68! Wheal Vyvyan Mining Co. We.scoinb (9 Ch. 553) Wheatley v. Silkstone Coal Co. . l?i I Wheeler r. Van Wart . . 6o9' Whinney, ex parte (13 Q. B. D. 476) ft" White's case (3 De G. & Sm. 157) H soil (12 Ch. D. 511) . . .785 v3 Eq. 84) . . 833,83)1 White V, Carmarthen Railway Co. M [ Whitehead v. Izod itehead hitehous hitelious .■^95) liil!^el(l wav Co liitley P( ATJTHORITIES REFERRED TO. Moil L Bank • 231,2)2, V. Bcr- . 31? '■ ig Ci . >) Co. . 'M I 640, 615' . 108, 46; j V. Adtlic 72,1 211 1 ■ 3(3' Society 63; | EC, Co. 636, 637, 652 1 id 1 CIi'. 5) . 2«:!| Society . . 73S| 702,701 ig Society it, &c. 921 j Ore Co. . 749, 78i 579) . 36;, 696, 69) 238) . 46). 825, 827 831. 835, 87i: ,88S 803, 811 ,82^ . 494, 515' way Co. 116) anal Co. 618, 647' 11 347 3)9. 356'*, 361' (10 W. , , CIS , 653' 48, 301 792, 793, 795' Co. 13) 68! Co. . 19; . 609' B. D. . . 8)8 . 157) 42, 80! . 785 . 833,83) ay Co. 198, 66! I'AOE . Jiitehead t'. Whiteliead . . 547 ^hitehouse's case (3 Eq. 790) . 28 [Thitehouse & Co., re (9 Ch. D. ,■-■95) . . • • '42, 744 niii*'eld V. Soutli-Ea.sti'ni Ilail- '2 ''• 19, lib, 797, 935 60, 748 690, 691 138 wav C litley Partners, Liiuiteil Hiittet's case . Hiitworth's i-use . C^igau I'. Fowler 7i2htwiek r. Lord . . • niby r. West Cornwall Hailway Co rilde V. Staimar . ... iHlkins V. Roebuck . ,'ilkinson'.s case . 26, 28, 771, / /3 iVilkinson i'. Anglo-Califoniian 542 200 295 148 Gold Co. . 1'. Lloyd . lilies V. Greenhill i'illey I-. Parratt Williams' case (1 Ch, 45, 59, 64 467, 491, 493 . . 205 D. 576) . 802, 803, 805, 827, 828 . . 735 828 illinnis, ex paiii: (2 £4. 216) 357, 722 - (1 Sim. N. S. 57) . 652*, 653' (2 J. k H. 400) (!» E(i. 225) Archer . Asiiinall Beaumont Colonial Bank Harding Hathaway Hayward . . . . Hopkins ilou" Pigott . . . . Prince of Wales' Life Co. 499 . . 286 . 267 474, 475, 481*. 913 560, 556, 708, 848' 247 . . 920 . 720 . . 139 145 440, 598 v. St. George's Harbour Co. 152*, 224 - V. Salmond . 565, 567, 568 r. Swansea Harbour Trustees .S8 c. Tryo .... 4.S8 WUliamson, cvjMiic 189, 235, 236, 238*, 385, 919 V. Barbour .... 205 Willison V. Pattesou . . . 37 Willinott V, London Celluloid Co. 197, 669 Wills V. Bridge .... 469 - - V. Murray . 58, 307, 308, 415, 426, 537 V. Sutherland . 267, 427, 565 Wilmot V. Corporation of Coventry 220, 221 Wilson's ease (8 Va[. 240) . . 123 - (9Eq. 706) . . . . 733 (12 E(j. 516) . . .694 Wilson, rajprt»'/c(8Ch. 4.^) . . 696 - - (7 Ch. 45) . . . .699 0. Bury (Lord) . . . 364 c. Birkenhead, &c,, Railway Co 425, 427 V. Caledonian Railway Co. . 103 Wilson V. Church V. Craven . V. Curzon I'. Keating . Ixvii l'A(ilC 30, 265, 570 . 268 . 363, 606 . 499, 802 207*, 241 . 675 565, 593 . 139 149, 176 . 653 V. Miors . . . v. Natal Investment Co. v. Stanhope V. Strugnell . V. Tuniman . V. Wallani . . . . V. West Hartlepool Rail. Co. 160, 2*23, 228 V. Wilson . . . 302, 303 Wiltshire Iron Co. Pearson (3 Ch. 443) V. Great Western Rail. Co, 668*, 672, 754 Winch V. Birkenhead Rail. Co. 202, 207, S9.% 572, 580, 598, 601, 892 Wincham Shipbuilding Boiler and Salt Co. Halluiai'k (9 Cli. D. 329) Poole, Jackson & White (9 Ch. D. 322) Wineliouse v. Wineliou' Wingfield r. Barton V. Peel . Wiiine v. Bampton Winstone's case . 120, Wiiiterbottoni, c.i; parte Wise, cr parte 561, AVithcrnsea Brickwork.s 720, 721 293, 294 293, 294 . 220 737, 752, 757 . 550, 708 631, 632, 639, 651* 676, 678, 719, 7-20 and 513) 622, 286 545 656 Wittenbury v. Law Witts V. Steere Wolesey., ex parte Wolverhampton, Chester Birkenhead .function Co. Cottle (2 M. & G. 185) Dale (1 De G. M. & G. Holroyd (15 Jur. 696) Roberts (1 Dr. 204) Stocks (22 L. J. Ch. 218) Wolverhampton New Waterworks Co. r. Hawkesford 59, 60, 104, 105*, 421, 427 Womersley v. Merritt . 135 Wontner y. Shairp . 16,34,145 Wood's case (15 Eq. 236) . . 124 (3 De G. & J. 85) . . 778* Wood's claim (9 W. R. 366, and 10 ib. 662) 180*, 237, 735 Woodr. Argyll . 144, 145 r. Maivston . . . 269 r. Wood . . . . 534 Woodfall's case . ... 780* Woodhams v. Anglo Australian Co. . 180, 275, 283, 560, .16:3, 741 Woolhiston'b case 83*, 533, S2'2, 843, 862 Woolman v. Toby . 32, 270, 607 Woolmer, ex parte 623, 646*, 664, 860, 865, 866 Worcester Com E.\. Co. (3 De G. M. k G. 180* 235 248, 384, 861, 862 (15 Jur. 960) . . . 684 ! Ixviii AUTHORITIES REFERRED TO. PAGE AVoreestor, Teubury and Ludlow Rail. Co 663* Wormwell v. Hailstone . 278, 279 Worth's case (5 Ch. 682) 63, 122, 184 Worth, ex parte, (4 Drew. 529) 83, 84, 216 Woithington v. Sudlow . . 247 Wreck Recovery Salvage Co. 353, 709 Wright's case (5 Ch. 437) 704, 889 (7 Ch. 55) . . . 521, 777 (12 Eq. 331) . . , . 818 (12 Eq. 336, note) . . 526 Wright V. Cami)bell . .224 V. Desley . . . .916 V. Horton . . 175, 203, 726 V, Monarch Investment Build- ing Rocietv . . 916, 921 r. Snowe . ' . . .810 r. Tuckett .... 545 — V. Warren .... 544 Wright & Gamble, ex parte (8 E(|. 123) 865 Wrighte's case (2 De G. M. & G. 636) . . . 722, 723, 850, 860 Wrights V. Lindsay Wnrsmn Co. Humby (5 Jur. N. S. 215) Wyall V. The Darenth Rail. Co. Wyatt V. Metropolitan Board of Works . . . . 146* Wye Valley Rail. Co. v. Hawes 848 291 147 390, 563 555 Wvlam's Steam Fuel Co. v. Street Wyld, ex parte 661, 619, 631, 639, 649* V. Hopkins . . 128, 144* I'.V.l Wyley v. ExhuU Coal Co. . . t;:i Wynn Hall Coal Co. North and South Wales Bank (10 Eq. 615) Wynne's case 17, 26, 769, 773, ';) ' Wynne v. Price . 473, 499, 505, 5l(i Yaeborough r. Bank of England 2W I Yates V. Nash . . . . 230 1 Yelland's case (5 De G. & Sni. 39!), and 16 Jur. 509) 47, 7.17, 761' (4Eq.360) . . • ■ 731, Yetts V. Norfolk Railway Co. 411, 412. 1 York Buildings Co., The . iii York and London Assurance Cn. Hodsell (19 L. J. Ch. 234) York and North Midland Railway r. Hudson 321, 364*, 365*, 588*. York Tramways Co. e. Willows 157, 158, 302, 337, 409, 99S Yorkshire Fibre Co. . . 440, 705 Yorkshire Raihvayj Wagon Co. v. Maclure IM | Young V. Brompton Waterworks Co m\ V. Cole . . . . 673 r. Smith . . . . 4SH Young & Co. V. Mayor of Leam- ington Spa Ystalifera Gas Co. ZuMET.v's claim 171, 20ti, ■•23 Ixix I'.V.ll STATUTES KEFERRED TO. 4h^H I'AOE 3.3 Hen. 8, c. 27 . . . • 315 7 Wm, 4 & 1 Vict. c. 73 PACE 1 88*. ■■ 2lJac. l,c. 16 . . . . 723 §20 . 100, 437 ^m 394 ^^1 29 Car. 2, c. 3, § 4 aud § 17 . 228, 463 21 . 100, 101 , 256, 290 H l^'il^l 6 Geo. 1, c. 18, § 18 . . 130, 320 22 . . • H^l Wi 99«^H 6 Geo. 1, c. 91 . . . • 130 23 . . . ■ 270 ,| 1 iOi^H 7 Geo. 2, c. 8 . . . .488 24 . 101, 255, 257, 270, : ^ 1 21 & 22 Geo. 3, c. 46 (Irish) . . 6, 8 ;'''0 H'l^H 39 & 40 Geo. 3, c. 28, § 15 . . 136 25 . . . . 270 i ' ^^H 4 Geo. 4, c. 76, § 16 . . • 172 26 . . . 100 ! / 265 ^H 5 Geo. 4, c. 114 ... 3 27 . . . . 100 i , • 5?3^H 6 Geo. 4, c. 42, § 10 . . • 137 29 . . 97, 252 48^ ^H 6 Geo. 4, c. 91, § 2 . . 3, 99, 252 32 . . . 99, 100 "•, 7 Geo. 4, c. 46 . . . • 4, 93 1 & 2 Vict. c. 9(5 . 268, 564 2']:; ^H See, in Index, Com- §4 . . . . 458 , ■■ 4f<;^H panies governed by 1 & 2 Vict. c. 106, §§ 29, 31 . 36 1 7 Geo. 4, c. 46 1 & 2 Vict. c. 110 . 460 463, 848 j ^^^1 § 4 . 109, 269, 282. 285, §14 . 6, 9, 461 ■ 'ii ^^m 286 15 461 6 . 109, 110 16 . . . . 4(i2 ^^^H 6 . . . 109 17 . 725 ^^H 11 . . . 252 18 . . . 725 ^^H 12 . . . 252 3 & 4 Vict. c. 11 . 268 ^^H 13 252, 257, 285, 286 3 & 4 Vict. c. 82, § i . . 461 ^^H 14 . . . 379, 380 4 Vict. c. 14 ^H ^^H IMieo. 4, c. 14, § 6 . 207,217,285 4 & 6 Vict. c. 45, § 17 . f^M ^^H 1 \Vm. 4, c. (56 . . 66 5 Vict. c. 5, § 4 . . .6 •k'-Q, 463 j^H ^^^B :i .t 4 Wm. 4, c. 42, § 28 and 7&8 Vict. c. 32, §§1, 8—11. ^M ^^H §29 . . 725 29 ^H ^^H 3 A: 4 Wm. 4, c. 83, § 2 . . 136 7 & 8 Vict. c. 85, § 19 ^H ^^H :5 k 4 Wm. 4, c. 98, § 2 . . 136 7 k 8 Vict. c. 110 ^HH ^^H 4 & 5 Wm. 4, c. 94 4, 99, 252 See, in the Index, Com- ^^H ^^H 6.<:7 Wm. 4, c. 32 . 918 panies governed by 7 ^8 ^H ^^^H 7 Will. 4 & 1 Vict. c. 73 Vict. c. 110 ^^^1 ^^H See, in the Index, Com- §3 . . . 44 ^H ^^H panies governed by 7 7 . . . . H ^^n Wm. 4 & 1 Vict. c. 73 23 . . . 148 ^H Hh §1 . . . .266 2r> .... 148, 253 ^H ^^^ft 2 . . . 101 2(5 .. . 487, 488 ^H ^^H 3 . 101, 270 29 . 328, 382 ^H ^^^1 4 . . . 101, 252 30 . . . 300, 336 ^H ^^H 6 . .100 44 ... . 225 ^H ^^H 6 43,93,100.282,290 45 . . . 225 ^H ^^H 7 . . . 100 46 ... . ^H ^^H 8 . . 100, 101 50 . . . ^M ^^H 9 . . . 100, 101 64 ... . 467 ^H ^^^B 10 . , . 43, 93, 100 66 ... ^■1 ^^H 13 . . . 100,270 67 ... . 380 ^H ^^H 17 . .100 7 & 8 Vict. e. yi 5, 611,612, 617, 620 ^H ^^H 18 . . . . 100 901 • I Ixx STATUTES nKFERRKD TO. rAQK 7 & 8 Vict. c. 113 , 8 & 9 Vict. c. 16 See, ill the Index, Com- §68 . . 330 puuics governed by 7 & 8 69 . . 331 Vict. c. 113 70 . 331, 601 §1 . 109, 138 71 . . 331 6 . . 410 72 . . 331 7 . 253 73 . . 331 10 257 74 . . 3:)1 14 . 380 76 . . 331 22 225 76 . . 332 23 . 467 77 . . 332 31 , , 412 78 . . 332 37 . ■ 529 79 8 & 9 Vict. c. 16 80 . , , See, in the Index, Com- 81-100 . . 3;: panies governed by 8 & 9 83 . . 332 Vict. c. 16 84 • . . §3 . 104, 538 85 . . 30!t 6 . . 103 86 . 309, 328 7 . . 451 87 . . 328 8 . 104, 293, 438 88 . t ( ■ 9 . 103, 282, 333 89 . . 332 10 . 103. 282, 333 90 . 329, 332, 408 11 . . 103 91 . 329, 332, 438 12 . . 103 92 . . 329 14 . 108, 467, 538 93 . . 329 16 . . 108 94 . . 329 16 and Sched. B. 108, 458, 95 . 226,329 466 96 . . 329 18 . 468, 488, 538 97 . 226, 228, 329 19 . . 538 98 . . 330 20 . 438, 478, 538 99 330 •21 . 399, 420, 426 100 . . 330 22 . 399, 418, 420 101 . . 332 23 . 414 101-114 . 441 24 . . 400 102-108 26 . 399, 414 104 . . ' . ' • 332 26 . 425, 427 108 . • 442 27 . 425, 427 109 . ■ 330 28 . 103, 427 no . • 330 29 293, 399, 408, 425, 529 111 . • 330 30 . . 529 112 . • 330 31 . 333, 529 113 . . 330 32 . 333, 629 114 33 . . 529 116 . . ' . ' . 441 34 . . 529 117 . :f:V2, 441 35 . . 529 118 . . 441 36 106, 252, 257, 282, 291, 119 . 333, 441 292, 294, 901 120 . . . 434,438 37 . . 380 121 . •414,432,438 38 H seq. 188, 194, 203, 122 . . 43S 332, 399 123 . . 438 45 . 194, 333 124 . . 332 46 . 194 128-134 . 883 47 . . 194 136 . . 418 48 . 194, 438 138 . . 331 60 . . 194 161 . . 333 61 . . 194 Sched. B. See § 16. 63 . . 195 9 & 10 Vict. 28 . 6, 901 64 . . 195 10 Vict. c. 75 . . . Ill 56-58 . . . 399 11 & 12 Vict. c. 45 . r,, 611 61 . . 399 §2 . . tilS 62-6.1 . . . 400 3 . . 746, 760 63 . . 333 9 662 66 . . 146 10 . 656 66 . . 330 12 . . 64J 67 . 331 16 . . 681 mi , & 12 Vi Fori 12 it 13 Vi STATUTES REPEREED TO. Ixxi . 331 331, 601 • 331 . 331 . 331 . 331 332 j 32; 332 309, 328 i . 328 . 332 329, 332, 4IJS ?29, 332, m . 32? . 329 . 329 226, 329 . 329 226, 228, 329 . 330 330 . 330 . 332 . -141 ■ 332 • 4-12 • 330 ■ 330 • 330 • 330 330 441 :<:V2, 441 . 441 333, 441 434, 43S 4, 432, 438 . 43S . 438 . 332 . 883 . 418 . 331 . 333 . 5, 901 . 114 . .1, 611 . 619 746, ?60 662 . 656 643 . 681 12 Vict. c. 45 §29 30 . 39 60 . 61 61 . 66 67 76 127 Form 2 in schedule 12 it 13 Vict. c. 108 §1 . • 16 . 26 32 40 . is & 14 Vict. c. 43 13 & 14 Vict. 0. 60 §2 . . 5 1.3 & 11 Vict. c. 83 . §§ 1, 2-29 §§31,35,36 . 16 k 17 Vict. c. 70 §§ 2, 116, 120, 123, 140-144 . Ml 142 . |17 & 18 Vict. 0. 25 117 & 18 Vict. c. 82 . 17 & 18 Vict. c. 104, § 18 [17 & 18 Vict. c. 125, §68 [18 & 19 Vict. c. 32 ■ §4 . . 22 . [18 & 19 Vict. c. 133 19 & 20 Vict, c 47 PAGE 706 705 809 263, 705 705 858 693 693 832 623 684 5, 611 619, 670 684 746 746 623 616 457 40 6, 618 901-903 . 903 40 . 467 . 467 268, 293 . 616 36 280, 603 24&25 . 114 . 325 . 5, 127 6,123,255,797 See, in the Index, Com- panies governed by the acts of 1856-8 § 19 . . .45, 129 20 . 25 41 62 Table B. i 20 & 21 Vict. c. 14 §3 . 26-27 . ■ 20 & 21 Vict. c. 49 §4 . 12 129 755 225, 228 . 257 45, 129 6 . 135 114 114, 138 114, 135, 138 . 138 20 k 21 Vict. e. 78 611, 612, 710, 747, 850 §1 . . J . 12 13 . 21 & 22 Vict. c. 60, § 17 21 St, 22 Vict. c. 78 . 22 * 23 Vict c. 59 23 & 24 Vict. c. 28 . 23 & 24 Vict. c. 38, § 10 23 k 24 Vict. c. 125, § 20 23 k 24 Vie* c. 126, § 33 . 671 . 672 619, 670 . 670 . 742 612 . 184 488 . 450 . 226 279 24&25 24 & 25 25&26 25 & 26 26 k 27 26 & 27 26 & 27 •AOK Vict. c. '''' . 88 § 7t . 446 81-84 . . . 9 84-87 . 82 . 446 83 . 446 84 . 440 85 . 447 Vict. c. 98, § 23 66 Vict. c. 134, § 150 cl. scij. 655 Vict. c. 87 . 6, 263, 293 619 §17 . . . . 614 Vict. c. 89 . 933 The Companies act, 1862. See the act in the Appendix, and see the Index, No. 1, and also "Companies go- verned by the act of 1862 " in the General Index. Vict. 0. 87, § 14 . 721 Vict. c. 92 §37 . 43 . Vict. c. 118 §4 . 6-8 9 10 . 11 14 . 21 22 . 23-35 . 28 Part' I II. Vict. 0. 19 Vict. c. 32 Vict. 0. 121, § 3 Vict. c. 78 §3 . 6-11 . 21 . 23 27 . 31-33 . 29 & 30 Vict. c. 108 . 30 Vict. c. 23 30 Vict. 0. 29 . 468, 491, 501, 505, 511 489, 784 . 363 . 712 . 6, 666 27 & 28 27&;28 27&28 28&29 . . 891 . 264 7, 103, 196, 198, 400 . . 630 . 530 . . 525 . 525, 530 . . 630 435 . 396, 399 188, 203 . . 188 . 333 . . 198 199, 229 . 266, 268 et aeq. 146, 400 . 204 334, 343 339 339 30 & 31 Vict. 0. 38 . 30 k 31 Vict. c. 68 30 & 31 Vict. c. 47 and 30 k 31 Vict. c. 127 §3 . 8-14 16 17-19 22 27 . 30 81 . 3? 339 339 339 188, 196, 196, 442 . . 761 131 196, 901, 904 . 905 . 195, 278 . 905 . . 905 905, 906 . . 905 906, 907 . . 907 396, 399, 400 . . 441 618, 902, 903 . 902, 903 Ixxii STATUTES REFERRED TO. PAGE ntii ■ 30 & 31 Vict. c. 131 33 > 34 Vict. 0. 97 ^M 43 Vict, c. The Companies act, 1867 §112 . . . . 920 ■ ■ See See the act in the Ap- Sch. Title Conveyance 31(i pendix, and the Index No. 1 33 & 34 /ict. c. 104 . . 6, 1021 §2 . . . . 711 ■ 44 & 45 Vic 31 & 32 Vict. c. 68 . . . 882 34 Vict. 0. 4 . . . .310 H 44 fi 45 Vic 32 & 33 Vict. c. 19 97, 616, 619, 654, 34 & 35 Vict. c. 31, § 5 . . 116, 917 ■ 45 & 46 Vic 689 34 & 35 Vict. c. 68 . . 184, 4^5 §3 . . . .325 35 & 36 Vict. c. 41 . . 184, in H 45 (Ie 46 Vic 4 . . . . 326 § 4 . 625, 643, 665, 702 5 . . . 326, 419 6 . . . 634,733 ■ 45 & 46 Vic 6 . . . . 326 7 . . . .26(1 ■ 7 . . . .325 Ist Sch. . . . 733 ■ 8 . 326, 419, 687 2nd . . . . 731 B 9 . .94, 95, 325, 446 36 & 37 Vict. c. 66 [Judicature 10 326, 408, 417, 419, 446 Act, 1873] 615 46 & 47 Vict 11 . .412 §18(3) . . . 699 (Co 12 . . . 396, 414 24, cl. 5 . . . 67j See A 13 95, 265, 419, 425, 426, 25 (8) . 596, 602, 603, 74i) 46 k 47 Vict 427, 559, 565 26, cl. 6 . (Coi 14 . . 96, 326, 466 34 . K 15 . . . 96, 326 49 . . . . 69? See Ai 46 & 47 Vict. 16 . . . 326, 529 37 & 38 Vict. c. 35 . . . 26« 16-23 . . . 94,326 37 & 38 Vict. c. 41 46 k 47 Vict. 21-23 . . .624 §7 . . . . 913 46 k 47 Vict. 24 . . . 278, 326 37 & 38 Vict. c. 42 46 k 47 Vict. 25 . . . 95, 819 Buildinj^ Societies act, 32 . . . . 699 1874. See Appendix § 33 . . . .701 918 e< seq., and also 35 . 96, 326, 465, 825 §4 . . . 614,615 36 . . . .278 32 . 614, 615, 619, 621, 32 & 33 Vict. c. 46 . . 426, 537 638, 88; 32 & 33 Vict. c. 48 . 7, 103, 198, 400 43 . . . 18y, 19S § 1 . . . 188, 203 37 & 38 Vict. c. 50 . . 42 6 . . . 396, 399 37 & 38 Vict. c. 62 . . .39 6 . . . 396, 399 37 & 38 Vict. c. 96 . . . 13ti 7 . . . 396, 399 38 Vict. c. 9 . . . .918 32 & 33 Vict. c. 62 38 Vict. c. 39 . . . . 189 § 4 . . . 462, 696 38 & 39 Vict. 0. 31 . . . 27S 23 . . . .556 38 & 39 Vict. c. 55 24 . . . . 556 §§ 173, 174 . . . 223 31 . . . .556 211 .. . 681 32 & 33 Vict. c. 71, § 87 . . 678 38 k 39 Vict. c. 60, § 10 . 201, 918 32 & 33 Vict. c. 96, § 14 . . 458 38 & 39 Vict. c. 66 . . 7, 103, 188 32 k 33 Vict. c. 114 . . . 901 38 & 39 Vict. c. 77 [Judicature § 4 . . 618, 630, 903 act, 1875] §§ 8-10 . . . 902, 903 § 10 . 678, 681, 685, 716, El 33 Vict c. 14 . . . . 36 719, 725, 726, 738, 739, 742, 858 33 & 34 Vict. c. 20 . 204, 334 39 Vict. c. 6, § 2 . . .761 § 3 e« scq. . . 339, 343 39 Vict. c. 29 . . . . 515 Order IX. r 8 33 & 34 Vict. c. 23 39 & 40 Vict. c. 45 Order XI §§ 6-10, 12, 21, 30 . 38 Appendix pp. 915»— 917. Order XVI. 33 & 34 Vict. c. 35 . 646, 547, 681 See also as to r. 9 §5 . . . . 9 § 4 . . . 293, 614 r. 11 33 & 34 Vict. c. 61 . . 184, 441, § 10 . . .221 r 14 445, 700 §11 . . . . 266 r. 15 §2 . . . .625 §12 . . .43 r. 48 14 . . 250, 261, 898 § 17 . . 614, 616, 619 Orfer XXII. r. ] 15 . . .898 40 & 41 Vict. c. 26 Order XXXI 21 . . 621, 625, 631, (Companies act, 1877) rr 1 A 634, 661 See the Appendix . . 1028 r. 12 22 . 621, 634, 635, 717 40 & 41 Vict. c. 63 . . 918, 918, 920 OrderXLlI 33 & 34 Vict. c. 97 . . . 469 42 k 43 Vict. c. 76 . . 6 r. 10 r. 23 . § 8 . 14, 66, 97, 310 42 & 43 Vict. c. 76 69 . . .469 (Companies act, 1879) 102, pi. 1 . . . 310 See the Appendix . . 1O30 pi. 8 . . 310 43 Vict. c. 14, § 8 . . . 915 L.C. UGI ance 314 6, 102! . . 711 . 31(1 1 . 115, 9Ii 184, 445 . 184, 44i ,3, 665, 702 . 634,733 . 260 . . 733 . 734 1 Etture 1873] 615 . . 699 . 265 . . 913 3 act, sndix L also 614, 615 15, 619, 627, 638, 88; , 189, 196 1 . . 42 1 39 . 136 . 913 . 185 . 278 . 223 . 681 201, 918 7, 103, 188 iture .875] I, 685, 716, 19, 742, 868 , 761 , 515 917. 293, 614 j . 221 . 266 ] 43 4, 616, 619 j |77) . 1028 k, 918, 920 . 61 1O30 915 STATUTES BEFKRHED TO. PAGE 43 Vict, c, 19 (Companies act, 1880) See Appendix . . . 1032 44 k 45 Vict. 0. 59 . 818 §4 . . . . 662 44 k 45 Vict. c. 59, § 4 and r. 74 685 45 k 46 Vict, c 43 § 17 . . . 198, 203 45 ntribute money or money's worth to a common stock and iploy it in some trade or busuiess, and who share the profit loss (as the case may be) arising therefrom. The common )ck so contributed is denoted in money and is the capital of company. The persons who contribute it or to whom it plongs are members. The proportion of capital to which lich member is entitled is his share. Shares are always traus- rable ; although the right to transfer them is often more or |ss restricted. A company which is neither incorporated nor privileged by Companies Crown or the Legislature is substantially a partnership | partnoiship^. jld although the ti*ansferability of its shares considerably jodifies the application to it of the ordinary law of partner- kip, still the company, like an ordinary firm, is not in a legal pit of view distinguishable from the members composing [A company which is incorporated, whether bj' charter, lecial act of Parliament, or registration, is in a legal point [ view distinct from the persons composing it, and is therefore jarded by lawyers somewhat as a firm is by non-lawyers. It es and is sued by a name of its own, and its continuous istence is not affected by changes amongst its members. (rt) Part. 110 et seq. ,.C. B I( ■ 2 TAW OV COMPANIES. Tntroductorv. a company which without being incorporated is privileuM to sue and be sued by the name of some public officer, is us it were lialf-way between an incorporated and an unincorporatel company. So far as its privileges do not make a differemv, the company is u partnership ; and so far as its privilof!i« extend, it may without any great inaccuracy be likened to a corporation ; for the main object of these privileges is t confer upon the company a sort of continuous existeim whatever changes may take place amongst the individuj; j^ shareholders. Sketch of com- pany law. Progress of joint- stock companies. 2. Historical sketch of the law relatincj to cumpanics. By the common law of this country every association c persons formed for the sake of sharing profits, is either ii partnership or a corporation ; and a company which is neitlifll a corporation nor a partnership, is a thing unknown to thJ common law of England (6). It has even been said thatil large partnership, the shares in which are transferable withoiii| the assent of all the members, is illegal at common law ; although the better opinion is that this is not so (c), still tkj courts treat as illegal any association for profit which attempt! to arrogate to itself the privileges of a body corporate I But within the last century associations unknown to till common law have struggled into existence, and after muci o^jposition have become legal. These are commonly calleij companies, or more accuratelj' joint-stock companies. When unincorporated companies, with a joint-stock diviiie* into numerous transferable shares, began to assume imporlj ance, and to force themselves upon the attention of the legiJ lative and judicial departments of the State, the reception tliJ met with was by no means encouraging. Owing to the tha established rules relating to parties to actions at law and suitj in equity, a joint-stock company could not practically sue i] (//) M'Litijre v. Connell, 1 Sim. N. S. 233. Coat-book mining com- panies are partner.-fhips governed by special local laws. (c) See IFalbiirn v. Itigilby, 1 M. & K. 76. (d) Blundell v. Wimoi; 8 ^ 601. This subject will be exaniiiej more fully hereafter. INTHODlfCTOIiy. 8 m debtors, nor could disputes between its members be iNtnonirToRr. ladilv, it' lit nil, adjusted. At the snme time, the doctrine int each member was answerable for the whole of the debts tlio company was studiously promulgated and rigorously piforced. i Under these circumstances, joint-stock companies were re- ReKftnlcd ns ,,,.,. , . niiiminccH. rded as nuisances, and tlie first legislative enactment relating them (6 Geo. 1, c. 18, commonly called the Bubble act) lis an attempt to put them down altogether. This attempt simply futile ; and notwithstanding the Bubble net, joint- Dcii companies increased both in number and importance. WHS not, however, until the end of the first quarter of the Bsent century, that the legislature began to retrace its steps. Iln the year 1825 the Bubble act was repealed (c), and from Rcactinn. |at time to the present the legislature has endepvoured by rious means so to am'^iiil tlic law as to give free scope to Icombination of capital, aud at the same time to prevent justice being done either to or by its subscribers. Hvcn wlien the opposition which joint-stock companies had Charteri. encounter was greatest, they could always apply to the 3wn for a charter of incorporation. Whether a charter luld be granted, depended mainly on the opinion which the leers of the Crown entertained of the ju'oposed objects and istitution of the company. If a charter was granted, the apany became, a corporation for all intents and purposes ; with this afiiongst other results, viz., that the members [the company were rendered personally irresponsible for its bts. At common law, the Crown hud no power to grant rters of incorporation, and also to declare that the persons prporated by them should be subject to the same liabilities ^lembers of unincorporated societies. Jut in 1825 an act was passed, empowering the Crown to 6 Geo. 4, c. 91. at cliarters of incorporation, and at the same time to [are that the persons incorporated should be personally U for the debts of the body corporate (/). This act was, 4 & 5 Wm. 4, llie year 1834, followed by another, enabling the Crown, "'' ^^' , I [6 Geo. 4, c. 91. The 2n5. bn of the Bubble act had been lously iL'pealed by 5 Geo. 4, c. 114. (/) 6 Geo. 4, c. 91, § 2. B 2 ,.< 7 Wni. 1 Vict, 1& Special acts of Parliament. I LAW OF COMPANIKS. Introbuctoht. without incorporating a company at all, to confer upon it by > means of letters patent, certain privileges, and especially the i privilege of suing and being sued in the name of a public officer (g). Both these acts have since been repealed, the powers conferred upon the Crown by the act of 183j,: are still exercisable under the provisions of the repealiiij| act (/<). If a charter could not be obtained from the Crown, a com* pi?.ny which desired to be legally recognised as such mi corappUed to apply to Parliament for a special act of its oiml The act usually sought to be obtained was either an act incoij porating the company, or an act which, without incorporatis;! it, authorised it to sue and be sued by its secretaiy, or soiiit| other officer. Acts incorporating companies were sometimes silent as the liabilities of their members, and in that case, the} w not to any extent responsible for the debts of the incorporate companj'. But other incorporating acts rendered the niembc" of the company liable for its debts to the extent of the respective shares of the nominal capital of the compam-, or i so much thei'eof as might not have been paid up. Acts which did not incorporate companies, but mereh (. powered them to sue and be sued, invariably, it is belitir contained clauses rendering the shareholders liable foi i debts of the company to the fullest extent. Until the year 1826, there was no method by which a cuCj pany could aijquire any of the privileges of a corporation,! the power of suin^ and being sued by a public officer, exctJ by means of a special application to the Crown or to Parli^ 7 Geo. 4, 46. ment. But in 1826 a general act was passed enabling joit stock banking companies to obtain the power '-f suing i being sued in the name of a public offici , by simply coniplj ing with certain specified conditions, and making certain i turns to the stamp office (i). And in the year 1844, nnotii general act was passed, enabling all corauanies (with soJ exceptions) to obtain from an office in Ijondon a certificate] 7 & 8 Vict, c. 110. ((/) 4 &"5 Win. 4, c. 94. (h) 7 Win. 4 & 1 Vict. c. 7.'5, and 47 & 48 Vict. c. 5G, § 1. (t) 7 Geo. 4, c. 46. • / INTRODUCTORY. O icorporation without applying either for a charter, or for an Imirodootout. ct of Parliaine'it (k). But, what is not a little remaikable 7 & 8 Vict, g in this very same year, 1841, the legislature retraced its ' Iteps as regards banking companies, and compelled banking jompanies formed after May, 1844, to apply to the Crown Dr incorporation. This the Crown was empowered to grant, rithout however lir i*:ng the liability of the shareholders (1). As regards liability to creditors, companies formed under these Limited cts were essentially partnerships. Their members were liable "^ ' ' ^' I their last farthing for the debts of the companies ; only before Bcourse for payment of such debts could be bad against an idividual member, it was necessary for the creditors to show iiiit they could not obtain payment from the company to lich that meraber belonged. Companies which desired iiited liability in any other sense than this, were still obliged procure a charter from the Crown, or a special act of Par- iment, and it was not until the year 1855 (m) that the law in is respect was altered. In that year, however, an act was is&io Vict. Iissed enabling companies registered under the general act of '^^ " ' J44 (other than insurance companies), to obtain a certificate ■incorporation with limited liability (/;). None of these acts provided for the dissolution and winding wiudi^ig up of companies. The first act upon this subject was passed 1814, and it declared what were to be deemed acts of bank- tptcy in the case ( f joint-stock companies, and how bankrupt bmpanies were to be wound up for the benefit of their credi- |rs(o). In the year 1846 an act was passed for winding up 9 & 10 Vict. I , ^ . c '^8 lilway companies projected before July, 1846, and not incor- rated by act of Parliament (jj). In 1848 and 1849, two ll & 12 Vict. c. itutes were passed enabling joint-stock companies generally vict'c. los'. l)e dissolved and wound up in e) 9 & 10 Viet. c. 28. (g) U & 12 Vict. c. 45, and 12 I), authorising the formation of & 13 Vict. c. 108. LAW OF COMrAN'.ES. iNTROpnc TORT. winding uj) railway companies incorporated by special acts their own (r). Ai;ts of 1S56-7. A rapid sketch has now been given of the progress of joiiitl stock company legislation down to the year iSSG. In ISoij and 1857 acts («) were passed, repealing more or less neaiiv all the acts which have been noticed, consolidating what wrtl supposed to be their most valuable provisions, and introducin.j Act of I8(i2. extensive alterations of an entirely new character. Tliestl acts, however, were themselves repealed by the Companies act, 18G2 {i), wliich is now the principal statute relating to joimj stock comi)anies, and will be found printed in the appendix ail the end of tins treatise. In the same year, 18G2, a very in;. portant statute was paF?ed relating to industrial and providcm societies (?()> find pltichjg them (Ui much the same footing aJ "mited joint-stock companies. In addition to the statutes which have been referred t;| already, there was an important act passed in the year 183s, enabling separate creditors of shareholders in public companiti to obtain an order charging their debtors' shares, whereljjl payment of their debts can be obtained without the inteiveii| tion of a sheriff and a seizure by him of the property of tlit company {x) ; and in the year 1841 another act was passoi enabling the Court of Chancery, on a summary application, t| restrain any public company from allowing any specified shar- holder to transfer his shares or to receive dividends in respe;! of them ill). 8 & 9 Vict. c. ic. The year 1845 produced three statutes incorporating clause usually inserted in special acts of Parliament relating to raiil way and other companies which interfere with private property nnd of these statutes, one, viz., the Companies clruts corJ solidation act (,^), forms an important jmrt of the law to wliidj this treatise relates. Other statutes, 1 & 2 Vict, c. 110. i Vict c .I. (r) 13^-14 Vict. c. 83. (s) 19 & 20 Vict. c. 47, and 20 & 21 Vict. c. 14. (0 25 & £6 Vict. r. 8!J, ainemlod liy 30 & 31 Vict. c. 47, and c. 131 ; 33 & 34 Vict. c. 104 ; 40 & 41 Vict, c. 26 ; 42 A 43 Vict. c. 76 ; 43 Vict, c. 19; 46 & 47 Vict. c. 28, and c 30; and 49 Vict. c. 23. (!/) 25 & 26 Vict. c. 87, repeat! liy 39 & 40 Vict. c. 45. A iiote \ these societies will be found in t'l ajipendi.x. (a:^ 1 & 2 Vict. c. llo, § I4ciw| (7) 5 Vict, c. 5, § 4. (s) 8 & 9 Vict. c. 16, anieiuled INTRODUCTORY. In 1865, after a long and arduous struggle, an act (Bovill's Introdu ctory. act) was passed extending the principle of limited liability to 28 & 29 Vict, k^aro^e classes of persons previously excluded from it, and ' Eiiablin'^ them to lend their money and render their services in pousiilerution of a share of profits, without thereby exposing Ihemselves to indefinite losses. This act is discussed in the vohune relating to Partnerships. The criminal law apidicable to partners and directors, with kspect to thefts, ei.. zzlements, fraudulent accounts, and ktateraents, wa.^ MiKiuled in 1861 and 18G8 ; and witliin the last, few years important acts have been passed relating to !!lost-book mining companies nnd Life insurance companies. Ill tlie appendix will be fouiid a chronological list of the [tatutes relating to companies so far as they fall M-ithin tlie [cope of tliis work, and also a table showing which of these tatutes are now in force. 3. Different sorts of companies. Associations of persons having gain for their object, will be Di'Terent .soru '■ ° ° .of partnershiiM puiid to belong to one or other of the following classes, and companiu.^. 1. Partnerships in the proper sense of the word. r.irtncrships. 2. Pavhierships with more members than usual, and with V"""" i""''i«''- ransferable shares. To this class belong all joint-stock com- anie!-' v/hich do not l)elong to one or other of the classes >liov,ing, 3. Partnerships governed by certain local customs which r.irtncr^lii]is ^clude those laws, applicable to partnerships generally, with looni oustofin. bich the customs are inconsistent. To this class belong lost-book mining companies. ■1. PiirtuersliiiJS privileged by tlie Crown or the h^g'slature ivvitm-ships sue and be sued by a public officer. These companies are .suo :iiiil Lu hucii ^metimes said to be quasi incorporated ; they include joint- Dck banking companies, governed by tiie act of 7 Gee-. 4, 46, joint-stock companies governed by the Letters Patent & :!7 Vict. c. 118; '.VI & 3b Vict. c. I & 48 Vict, c. 43. 48 ; 38 & 39 Vict, c. m ; and by 8 LAW OF COMPANIKS. Corpnrat",oi:s proper. Incorporate f! companies. Introductorv. act of 7 Will. 4 & 1 Vict. c. 73, and a number of insurance I and other companies governed by special acts of their own. 5. Corporations in the proper sense of the term, the mem- bers of which are to no extent liable to the debts of the bodv corporate. These must be created either by royal charter ori by act of Parliament, and to tJiem the law of ordinary partner- j ships has little, if any, application. 6. Partnerships incorporated by royal charter or act* of| Parliament, but so neveilheless, as to leave their members more or less liable to the debts of the whole body. Com- 1 panics governed by the Companies clauses consolidation act are, and banking companies governed by the repealed act of I 7 & 8 Vict. c. 113, were, types of this class. 7. Partnerships incorpoi'ated by registration. These con- stitute the great mass of joiut-stock companies, and are of two sorts, according as the liab'lity of the members for thej debts of the body corporaL^ is unlimited, or li .nited. The first sort includef' all joint-stock companies goveri)eiij by the repealed act of the 7 & 8 Vict. r. 110, and it includesl all unlimited companies registei'ed under the acts of 185G-8,or| under the Companies act, 1862. The second sort included those companies which t,vail( themselves of the shoi't-lived act of the 18 & 19 Vict c. 9 and now includes all companies registered as limited coni-l panics under the acts of 1856-8, or under the Companies acl.j 1862(a). Limited liabilit}' companies again are of two sorts, viz,,| 1, those in which the liability of the members is limited bytkl amount of their shares ; and 2, those in which the liability oil the members is limited by guarantee ; i.e., by the amount tlifl have I'cspectively undertaken to pay in the event of a con-l tribution becoming necessary in order to discharge the liabi] lities of the company (/;). Companies limited by guarantcJ may have thoir capitals divided into shares or not (c), and art supposed to admit of greater varieties of internal organisatioJ Ecsistered companies. UalimiteJ. Limited. (a) To this class also belonged Irish unonyriious partnerships, go- verned by 21 & 22 Geo. 3, c. 46 (Irish), repealed by the Companies act, 1862, (b) 25 & 26 Vict, c, 80, § (c) lb, § 14, INTRODUCTORY. iiwe ; lem- 3ody I sr or I tnei- ct' of I nbers Cora- in act act of 3 coil' are ofj 'or the I >venitii| ncludesl 5G-8,oi tlian compilings limited by shares. The latter, however, are Ihtrodcctobt. Jinucli the more numerous. The following table convenientlj' exhibits the above classes oi companies. ' Large Partnerships. Cost-Book Mining Companies. /Banking Companies go- f.vauei! cJ3, Id conv LOS act. / Unincor- porated, via. loint Stock C'ompanies Companie.^ empowered to sue and be sued by a public officer, includnig verned by 7 Geo. 4, c. 46. Companies governed by the Letters Patent Act (7 Wni. 4 & 1 Vict. c. ui). Companies having special Acts of tlieir own. Incorpor- \ ated oy Special Act of Parliament, e.g., Railway, Canal, Dock, and Waterworks Companies. i In which the members are not lia- ble to the debts of the company. Royal Charter ( In which the members are liable to the debts of the company. Registration < Without limited liability. limited by shares, limited by guarantee. AVith limited liability For some purposes, and particularly in orde:* properly to Pui)iic com- teipret certain statutes (d), it is necessary to distinguish P*°"^'^' 'uhlic companies from others. But in this, as in many other [istances, the word public is used with no definite significa- on; and it is extremely difficult to say exactly what tlie hy tlifHssential character of a public company really is. It has, ih*^y "'however, been decided that banking companies, governed by e 7 Goo. 4, c. 46, are public companies within the meaning the statute 1 & 2 Vict. c. 110, s. 14 (e) ; and that an in- ranee company governed by a special act of its own was a iiblic company within the meaning of the Ai)portionment act Is, VIZ. Int tliejl a COB' larautei Ind ai lusatioi |((f) '.'"he statutes here referred to 1 & 2 Vict. c. 1 10. § 14, relating executious against sliareholders ■ their separate debts ; 24 & 25 let, c, 96, §§ 81 to 81, relating to pds by directors, othcers, and members of companies ; 33 & 34 Vict. c. 35, § 5, relating to the ap- portionment of dividends. {e) M'lntyre v. Gonncll, 1 Sim. N. S. 225. ns9 10 LAW OF COMPANIES. Introductort. Comimnit's not for gain. if r- of 1870 (./'). It would however seem tliat those companies | only uru public which are either incorporated, or, if unincori porated, are endowed by the Crown or the legislature with soin^ | special privileges, and are bound to make some kind of retunj or list of their onicers or members which the public have a 3 right to see. A mere partnership, however large and however | transferable its shares, is apparently not a public company ((/, Companies formed for merely scientific, literary, artistic, oti charitable purposes, and not with any view to the ncquisi.j lion of gain or the avoidance of loss by themselves or tlieirl members do not fall within the scope of this treatise, wliiiL is confined to companies formed for the purpose of aequiriii; and dividing profit in some form or other, or, as in the case 0! mutual insurance companies, of avoiding loss. Owing to the course legislation has taken and to the classeil into which companies must be divided if confusion is to avoided, it is absolutely necessary to consider companies 11 only with reference to general principles more or less applicabtl to them all, but also particularl}' with reference to the statute.| applicable to their several sorts, viz. : — 1. The Banking act of 7 Geo. 4, c. 4G. 2. The Letters Patent act, 7 Wm. i Si 1 Vict. c. 73. 3. The Companies clauses consolidation n( t, 8 il- t) Vkj c. 1(J. ■1. Th(^ Companies act, 1862. (/) C'(()T V. ariffith, 12 Ch. l). 655. ((j) Set' tlio lust two cases, ai;.| Joneii V. Oiile, 8 Cli. 192. [") Mcluljtll'a ])V FORMATION OF COMPANIKS. 11 BOOK I. OF THE FORMATION OF COMPANIES AND OF THE ALLOTMENT OF SHARES. General observations. A co.Mi'ANi', so fur as it is only a partnership consisting of a Baok I. arf^e number of persons having a joint stock, and associated Compauie-i as ° „ , . ci • r J • • 1 ii tance by a company of the offer contained in an Aocoi.taiK'o ' ... . witlimit iillot- [)i)lication for shares may, it is conceived, be evidenced other- munt. liso than bv an actual allotment. Sometimes the offer by the iinipany precedes the application, so that the application is in ith an acceptance of a prior otter ; and where this is the case allotment is not necessary to complete the contract, although [niav be necessary to constitute the applicant an actual share- bl(ler(o). But allotment is the ordiiuiry evidence of accept- |ice ; and where there has been no allotment, acceptance will Dt be inferred from the mere facts that the applicant paid a Lposit on the shares at the time he applied for them ; that he btained a receipt for the amount of his deposit, and that the lonoy has not been returned to him (j)) ; nor from the fact kilt as a director he ought to have had shares {<]). aiwger. Conqiare Pellatt's case, |ch. ;)27, where a demand for calls i held not notice. |(i) As in Blomm's case, 33 Beav. l9, aft', on appeal, 4 De G. J. & Sni. This case is regarded as kviiig turned on its own special fcimistances, and has not teen [lowed. See the cases refei-red to bove. See, also, as to directors, |nriC(m/'s case, 13 Ei^. 30 ; Leeke's !'•, U Ch. 4G9. [(hi) Totnitniud's case, 13 Ei^. 148. ()i) llanmjate Hotel Co, v. Montc- j)K, aud i'Miic V. Goldsmui, L. 11. 1 . 109 ; Ex parte Bailey, 3 Ch. 592, nd E^. 428 ; (JarmicliaeVs case, 17 Sim. 163 ; Mathew's case, 3 De G. & Sm. 234. See, too, Onion's case, 1 Sim. N. S. 394 ; Conway's case, 5 De G. & S. ] 50 ; /SViar^j and James's case, 1 De G. Mac. & G. 565 ; Ex parte Roberts, 1 Drew. 204. (o) See Adams' case, 13 Eq. 474, where one company transferred its business to another ; Bird's case, 4 De G. J. & Sm. 200. (p) Best's case, 2 De G. J. & Sm. 650. See, also, liamsijate Victoria Hotel Co. v. Montefiore, and Same v. Uoldsmid, L. R. 1 Ex. 109. ((/) See Chapman's case, 2 E(]. 5U7. Abercom's case, 4 De G. F. & J. 78, IMAGE EVALUATION TEST TARGET (MT-S) ^'>^1^ /. 1.0 I.I 1.25 i $i£ 12.0 1.8 1.4 IIIIII.6 — 6" o / HiotDgraphic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 873-4503 /<^1^* f/ & 16 Hk, I. Cliap. 1. Sect. 1. UnconcludcU agreements. FORMATION OF COMPANIES. In order that an application for shares and an acceptance of it (by allotment or otherwise) may constitute a concluded agreement between the applicant and the company or its directors, it is essential that the acceptance shall be in strict conformity with the application, and not depart from it in any material respect. If it does, the acceptance, even if in the fonn of a letter of allotment; must be regarded as a new offer, which the applicant for shares is at liberty to accept or decline ; and there will be no concluded agreement until the new offer has been accepted (r^. This has been decided wher^ shares were applied for anu ^'.ose allotted were "not transferable" (s); so where the allotment wns made subject to forfeiture on non- compliance with certtti" ■ o ditions (0 ; so where 100 shares | were nppU»'d for niid r ^., 2.) were allotted (h); so where 20/. shares were applied for and 40/. shares were allotted (r). So I where the secretary of a company wrote to a provisional com- mittee-man to say that shares had been allotted to him, ninl asking whether he would accept Ihem ; and in answer, the allottee requested that the sliares in question might be "re- served for him," an issue was directed to try the question! whether tlie answer amounted to an acceptance of the offer or not iy). There are several other cases illustrating the same principle, to which however it is unnecessary more particularly to allude (i). and others of tliat class noticod here- after iiiuler the liead Coiitributories. (/•) Sec the next four notes, and compare with them Harris' case, 7 Ch. 587 ; I'tek's casf, 4 CIj. 532, where the term as to payment was Iteld no ((uulification. («) J>ulce V. Andreu-s, 2 Ex. 290. See, too, U'ontner v. Slinirp, 4 C. 15. 404 ; Vollans v. Fletcher, 1 Ex. 20, and compare Hntton v. UpfiU, 2 H. L. C. 674. (<) Jackson v. Turquand, L. R. 4 II. L. 305, atlinninK AddinelVs ease, 1 Eq. 225 ; Oriental Inland Steam Co. V. liriggs, 8 Jar. N. S. 801, and 4 De O. F. & J. 191. Compare these with Barrett's case, 2 Dr. & Sni. 415, and 3 De V>. J. & Sm. 30, where the new term was acceptcl by payment, and with Perrdl't (i\i',\ 15 Eq. 250, wliere repudiation cauKJ too late. (it) I'Jx parte Roberts, 1 Drew. 204; lie lla rftf r, 1 5 J u r. 5 1 . The coiiimM I form of application now in use, iil for a certain number of shares, or I 8uch smaller number as may Ik I allotted. (x) Sec Gnstard's case, 8 Eq. 438,1 where the bargain as to the 201.1 shares was held binding, but tlieR| was no bargain for 40^. shares. iy) Onion's case, I Sim. N. S.ml See, too, Mainwarin^B case, 2 Deft | M. & G. 66. {::) See infra, book iv., under i1k| head Contributories. APPi.rc.vriox von shares. 17 Moreover, in cases of this liiiul, the fiu-ts thiit shares hiivc Uk. I. clnv. i. Sec'. 1. heeii iillotted to the applicant, and that ho has bet'n rcj^iatt^red - - i I respect of them and has applied for certiiicates, do not I ouiliisively show an acceptance by him of the new terms (<()• Again, if an offer is made to take shares conditionally or Con.litional iijioii unusual terms, a clear acceptance of these conditions or tonus nmst be proved in order to constitute a binding agree- iiiLiit : and the mere fact that shares have been placed in the applicant's name is not sufticicnt to bind him. Thus, in Shichl '■ford's case{h), a person api)lied for shares npon the Shackk-for.rs t riiis that he should have the refusal of certain contracts and piy for the shares in goods and not in cash. There was no (listiuit evidence that this offer was accepted. The shares iipplieil for were, however, in fact allotted to him and placed in his name ; and although no notice of the allotment was sent lo liini, there was evidence tj show that he was aware that s'liiiVN had been given to him. It was nevertheless held that 11 1 couchulod agreement had been entered into, and that the iipplicant had not become a shareholder. The conditions, moreover, must be assented to by those who rae ionii)etcnt to bind the company (see 13ook II., c. 2). There- fjiv, where a person applied for shares upon certain terms [vliich were assented to by the manager and two directors, jvhou by the constitution of the company three directi.k's {■((,•', 9 Cli. 392. Sec, {(l) Sec BiikIc of HiiKhmtitn v. //>)«\c(6r, 8Ch. 1002. Alimt, L. 1{. (i C. P. 51 & 222; [('■) 1 Cli. mi. See, also, Hogn-.i' Since ami jy'ortli'^ r' Uliithij Partners Ld., 32, 1). 337. I lUtrke V. Lechmere, L. R. G Q. Pi; r/i(iHiM Tunnel Compitnu v, \). The prospectus of the Scottish and Universal Finance Bjh described the «)bjv}cts of the company to be general b iii purposes, and the purchase, importation, and exportiu.on spocio. The objects of the company as formed wont far bi vw this, and included, amongst other '.hings, obtaining conccssii for the construction of railway and other works, and the kiis or working such undertakings, and the transaction of business of a merchant, contractor, and capitalist, as priiici] or agent in any part of the world. It was held, first by V.-C. Wood, and afterwards by the Court of Appeal, thai person who applied for shares on the faith of the prospect; and to whom shares were allotted, had not agreed to becuiiit| member in the company ; he never having been aware that company was formed for purposes so materially different those stated in the prospectus (j)). The prospectus of the llussian Vyksounski IroU'icorks d pany stated that the objects of the projected company were acquire, work, and exteUvl certain specified iron-works in IJui The objects of the company as formed were to acquiii work iron mines and works in llussia generally, and to w« mines, build ships, forge, cast, and roll ii'on, to consi wrought and cast iron work, and to manufacture all kiuiiij engines and engineering work. It was held, in this case L. 356, 358, and Blackburn's case, ,3 Drew. 409, noticed vifni, (o) liije'x (•«<■, 3 Jur. N. H. 4G0, V.-f. S. {l') »S7ty/« case, 2 De G. J.ij 544, and Doictus v. Hhiji, L. l.^ L. 343. Itlint npi)Iicftnts Ito whom share; Inevor been dra^ jcoinpniiy as for |reim(hato their f Tlie i)rospecti IG. and J{. as tw( ■this stntoinont, ( Ifliiy sbftrcs were [be npi)oiiitcd di these circinustan nllotted to him (/■ Miuiy cases un kaiiic principle an Hght to repudiate Itho company (.v). Other illtistrati [those cases in wli jcompanies for del cussed. TliL'se ci become nioinbers [tcrins and for c-er Tacted by the di jcontemphitud ; unl liable to such debt? Shares. Thus ill I'\),r V. ulio liad applied ^Hotted, and had p J''- W(T'(f c(w, 2 K.J. 741 r) Aiiln:<.}ii'ii ,■.(., "•'i;an(l.-oi'/„,-(;,sV(;^//, I' -'3 Cli. J). 413. A h>tk V. CllilJirid; 20 [•"•!» Ap].. Ca. 187; ["•"'VH'I,. 4(J7, when f'fi roi-ned afti-r tlie «fii alliitti'd. Vox's c,m and X, ^- & J. 308 & 314 ; rnOSPRCTUS not AMIKItEI* TO. 21 Itliat npi'Hcftnts for shares on the faith of the prospectus, and '"'k. T- CIup. 1. Ito whom shari's had been allotted, hut whose attention had Inevcr been drawn to the variance between the objects of the Icomprtiiy lis formed and those advertised, wore at liberty to |repn(hato their shares on discovering the variation (7). The prospectus of the Scottitih Petroleum Coiiipmuj named Tlo Scotti.sh \('t. and Ii. as two ot the du-ectors. Anderson, on the faith of I'osnpany. Itliis statement, applied for si: i'es in the compan}', but befoi'e AnUrson'H casu, Inny sliarcs were allotted to him both G. and II. had refused to [be appointed directors. It was held that Anderson nnder Itliose circnmstancos was at liberty to repudiate the shares allotted to him (»•). Many cases under the older winding-up acts illustrate the i;iine principle and may still be usefully referred to where tlie sight to repudiate is not lost by reason of the winding up of the company (s). Other illustrations of the same principle are afforded by r.>iiii.atii..s those cases in which the liability of subscribers to proiccted s»",ii. '' companies for debts contracted by the directors has been dis- cusse ciifr, 1 Cli. 074 ; J['.V-f, ,■■.<*•. or, 2 E P)(?av. 2G2 ; .lA //«/.< rasi, il). (0 G IJinj,'. 77(1. Sei', also, ]!iiiirur v. Fircth, <) 15. & ('. i\:i-2 : I'ilrlifoii' v. J>(ivi^, .') .M. & \V. 2 ; I'ur v. Ans(W, 7 15. iS: C. 4(i!), I'lrriii;/ v. Ifinic, 4 Ding. '2S, so far as it ilfuiiled that persons beconio partners liy stib- siribing to an inohoate companj", must be rogarik'd as overruli.'J by Foj: v- Clifton, j~r. 22 FOIJMATION OF COMPAXIKS. ifk. I. chnp. 1. pnrtiipi's with tlie projcrtors of tlie company, iiinsmuch ns tliJ — -*-' — coiiipftiiy in whicli nlonc the dufendnnts hnd ngi'cod to hn\m partners wns never in fact f«)rmed. Tlic cai)ital was iicvc subscribed, only a few shares were ever taken tip, the deed wn. onl^' signed by a comparatively few persons, and by one dnln of the defendants. The time fixed for its execution lia,i elapsed, and it was" expressly declared in the prospectus >{ the company, and which prospectus was held to form the basiJ of the contract into which the defendants had entered, tli;i'. every person who should neglect to execute lli;; deed witliial the time fixed should forfeit all share and intercc;t in tlie cdiu- pany. In answer to the argument that the defendants \m\ become shareholders in a de facto existing company bv \va\. ment of the deposits, it was observed by the Court : — Kffccl of imying •' tlicpiiving of tlic deposits imisl uiulouliti'dly be taken to iiiiply an awi: ilt'|>osit to the terms of the atlvertiscnieiit ; that is, un as=seiit to liecoiue iiartiicM ill a coiiipaiiy laisinj,' a cai>ital of (500,000/. consisting of 12,000 shares, an:! to l>e i^ovi'ineil hy a deed which shouM contain tlie clauses and coiidiik | to liC imreed on in future ; but we think it implies nothing more, iuultli it cjinnot he coiistriind as an assent to the teniis of a partnership alrtaa. foniied. When, therefore, instead of an allotment of l:i,00ii shaicji, ll | utmost that were ever allotted scarcely exceeded 7")00 ; when, out of tliy numl>er, no more than 2300 ever paid tlie first instalment ; when nut L: the latter nnniher paid the second instalment, and only sixty-live -n fcribers signeil the deed; we think the subscrihers were at liherly to >;iv This was not the tradin:,' company upon which we paid our deiKw; neither tiie capital nor the iiuiiil)er of shares hearing any reasoiiai! projiorlion to the original plan and i)riiject. And this the nivu-c espeiiallj I Wcanse, by the terms of the advertisement, they were taught to exiv I that the utmost risk which they encountered was the loss of all share acT intfivst ' in the concern ' upon their refusal to execute the deed ; wlii J loss they apjii'ar to have submitted to." ciiaiiKBof The foregoing cases must be carefully distinguished fioul ilscd or r.uincd. those in wbich the applicant lias authorised or sanctioned il allotment of shares to him, Avitli notice of a difference betwed the tibjccts of the company as described in its prospectus aiii its objects as tiltimately fixed by the instrument creating titj company. Cliaiifieof "Where there is a sjiccial agreement to take shares, and tkl st'liciMO aiitlin- , •! I • ii T.«. • I I riscl bysiiecial company as described m tlic agreement dillers m character iil agreement. purpose from that described in the prospectus, the ngrceme!. CII.VNtiE OF SCIirCME. 88 must, in the absoncs of fraud, be regunlt'l ns exMressinj? the r.'c I. chii].. 1. i c()iitriict into which the parties have entered ; and to the extent to which tin; ftf,'recment and proapuctiis differ from each other the terms of the prospectus must he considered as jcxrhulril hy those of the agreement (/(). Persons wlio subscribe to projected companies which are toCliangeof lie incorporated by act of Parliament or by charter, frequently risol by form of [give the managers very extensive powers, and bind themselves "I'l'""*'^'""- Itt) take sliivres in almost any company which the managers linav he able to induce the legislature or the Crown to incor- ll) mite, and whic-h is not altogether of a different nature from Itlmt proposed. Wlioii this is the case, and a company is |f iriuod, the sub.icribors will be bound to take shares, and will li.' converted into shareholders, if the net or charter so UwliU'es, although the company actually fin-med differs both En ohjiHt and constitution from that to which they sub- ^(•i-lbi'(l (■'•)• lu the Midland (ircut Wi'Htcrn. Ildiliniif Compami v. Mi'llrxml, ka., \ii,000/. to be trebled if necessary, and the hiiIi- scribers signed an agroenient reciting that application Imd been made to the Crown for a charter and nominating certain persons with power to arrange the terms of the charter in sudi manner as they shonld think necessary in compliance ;Yitli the recptisitions of the Crown, and to narrow or extend tlii j objects of the company as might be necessary, it was lull that a clmrtor incorporating the subscribers with a capitMl 4 (511,000/. with power to increase it to 1,000,000/., with tli. consent of the I^ords of tlu! Treasury, was one which tlii directors had authority to accept, and that the subsciilxis were bound by it (z). Clmngp of Kven where the subscribers' agreement is less general in it> Hclifiiii- aiiltio- P 1 ,. riswl by act if language, the terms of the act of Parhament nicorporatuij,' tli' ar mmcn . company may be such as to convert the subscribers to a com- pany of a particular description into shareholders in aiiotlier company niaterially different from it. A construction of \h act leading to such a result is to be avoided if possible; but if its language is clear and i)rccisc no court can lawfully dicliiK to give effect to it, nor hold that a person expressly made a shareholder by the legislature is not a shareholder to iill intents and purposes (a). ^Vhen two companies are aiiinl;.';!' mated by an act of Parliament which enacts that the sliaio holders of the old companies shall be entitled to shares in tlh new company, nothing more is recpiircd to make them meiiibn: thereof (h). Change uf A jierson who has aiiplied for shares and has had tlw fluently at scntod allotted to hnu Under cu'cumstances which entitle lam to rej °' them, may nevertheless elect to retain them ; and this clfctiojl may be evidenced not only by an express agreement kl by conduct. It need hardly be added that if a peiw knowing the circumstances which entitle him to rcjeJ l< i Yovf/hal Hail. Co. v. Paterson, 18 C. B. 414, are .similar case-". (,v) h'ec A'oriiKtn v. Mitrhill, .'> I)e G. M. & G. G4S ; and 1!) Buav. 278. (rt) See KiiJivelley Cttnal dt. v. Rahii, 2 Price, !)3 ; Cromfnrd and llhjk Peak Co. v Lamj, 3Y..U| 80 ; Scfjif •;. JkiMcij, 3 t'. 13. !»i'. (li) SjMckman v. Lattimon. '.] &\ 1() ; and see Cork and Yomilud Hi Co. V. Patcrson, 18 C. B. 414. ASSKNT TO CHANUE OF SCHEME, 26 .sharps wliic'li linvo Leon nllottod to him ivtains them without •''<• '• cimr ibjcc-t toll, III ul nets as if he wore n shnroliohh-r, it will he too - StNl. 'J. I it( I'.ii- liiiii iiftorwnn (Is to rcpudiato tlioi 11 upon the j^roiii 11(1 that tiu'V were not wliat he applied for, or upon the ground tlii\t tlie terms of tho company's prospeetus have not hccn iiilliered to (<•)• liiit although a person may acquiesce in a change in the Alloimcnt with ftll»';;iil iHitico i-Iki iilijicts of a company, yet, where those ohjccts are chauf^ed i.f ciimiK. litter !in application for shares and hoforc tlu; allotujcnt of' thrill, nnd the attention of the applicant is not drawn to tho (■!iiiii''c, and he is really i<,'norant of it, tho more fact that. the shan d the di th 11 Ik; receives ihc slmrcs and pays me ileiiosit on them, wi not preclude him from denying that he ever agreed to take t!iom (>/). Tlie same principle applies to registered companies; and it has been decided that the mere circumstance that the appli- cant receive;, a letter of allotment or certificate stating that the shares are to he held suhject to the company's memorandum iiml articles of association is not enough to call his attention to ft material difference hetween the prospectus on the faith of which III' applied for shares, and the memorandum of associa- tion whieh fixes the ohjocts of the company (c). But the strong tendency of modern decisions is that ns Delay in repu. I iv;.'av(ls companies formed under the Companies Act, 18G2, an ' ' ' " iilhittee (if shares who does not inform himself of the contents I of tlie memorandum of association within a reasonahle time, ami who keeps the shares allotted to him without taking the trouble to ascertain whether there is any discrepancy hetween the prospectus and the memorandunx of association, cannot ':\ '■) See Tmhirn v. Ihiinie, G M. Iv; W. 4(11 ; I'd v. rhnmim, Ui C. V,. |T14; atdgoiherfjcr v, Cnvr, 3 Man. & jlir. 1!)1 ; l.iiuihn tnid Continaitnl l.!'>'iriiii(v Cii. V. ItciUjrarr, 4V. l>. In. S. i)i\. C'onipai-e tlic^e ca.^scs iMiili tliosi' nu p. 21, note; (/). {<') Uladlmni's ni.'o; 3 Drew. 409. lis case was reversed on appeal IC^Di'd. Mile. & (}. 177) ; but the I'liiuiple (III wliieli it was iloi'ided liy the Vicc-Cliaiicellor ivinains un- impeaclu'd. On the appeal addi- tional evidence was adduced and the Court was sat itched tliat when IMackburn jiaid liis depcsit he must have known what shares he was takiiifj. (- ) IFehstarK cane, 2 E.[. 741 ; Ship's f((w, 2 De G. J. (& Km. .544. See, also, Jjcck's case, Ch. 3.02, where the allottee was registered. T — ^ I'oiiMATioN or C()Mr.VNii:s. Itcptiiliiitinn ill time. 8 to wart's eitHC, Ilk. I. (Imp. 1. nftorwnnls ropudmtc llie slinros ( / ). In tlio nppliontion, i.ow- f^'''i' 'i- ■ 1 • .... "... . , ... — — — cviT, ol tins mil', it is imi)ortiuit to uistingiiisli cases in whirli the nll()tte(> rcptidiatcs his Ttlinn-s hcfort! the coniiMiny is litiir,' wound up IVoni tliosc in wliicli lie dofs not (.'/). 'J'lio follnwlnu cnsos, wliicli iirosi' brf'orc nn.v \vindiii}^-up Imd coinnicncfd, iiiuv bo usclhlly rcfcrix'd to on this head. Ill Striviirt's <•((«<■ (li) the application to bo removed from the list was succcssftil althonf,'h twelve months had elii|isi(l since the nllotment of shares, and the nllottee had in the interval tried to sell them, and had attei'deil a meetinf,' cnlltil for the express object «)f altering a clause in the aifiii< relating to the increase of capital beyond the amount stiitid in the prospectus: but both the V.-C Wood and the Cumt of Ajjpeal held that these circumstances did not prccluilc the shareholder from having his name removed, it lieiiii; clearly proved that he, in fact, knew nothing of the givat change which had been made in the objects of the com- pany (/). In il'clmtrr's cum' (/.), which was nnothor in the same com- pany, the allottee had exchanged the banker's receipt for a 1 certificate that he was the proprietor of fifteen shares " siil)jiMl to the pnjvisions of the mcmoraiidum antl articles of associa- tion : " but even this and the lapse of one year after the allot- ment, and ten months nfU'V the receipt, were held not U deprive him of his right to be removed. yicliols amr (/). A prospectus of a projected cun)|miiv stated (in efl'ect) that its objects were to rear poultry, iiiid t^ enable consumers to buy eggs and poultry at half the umwII price. The prospectus stated that the articles of association might be seen at tlu^ company's office ; but neither the pi- si)ectus nor the articles referred to the memorandum of iissn- Welwtcr's cn»e. Niclinls' CISC, (/) See the jiiilj,'iiu'iits in /V//".< W.l. rasr, 2 CIi. (i74 ; 7/((inc)ir<'^ case antl (/i) 1 ('li..'i74, iiiitc,\t. 21. Si'LiiI.-i| A7«r.(iVr.f n(.v,., ib. 412 ; irHkiimnn'H //';/»»'.•( aw, 8 Ch. 1002, niul M' C(tsr, ib. 53() ; also in IhwHci^ v. Hhip, cum', !) ib. .31)2. L. \\. ;5 II. L. .343, and Onkcs \. Tin- (i) Compare K.c parte Ih-iijijs, 1 E|.| 7«rt»(/, 2 ib. 32."). 483. (fl) Conipare witli llie cai^M re- (/.) 2E(|. 741. fcrred to in the next notes, rrrV.f (/) AV. N. 18(57, 77. disc, 2 C'li. (;74 ; llair's caiti; 4 Cli. IIKIM'DIATION IN TIMK. VI rirttiDH. On tin- fnith of this prospectus, npplicaticni was nmdt! Hit. I. <'h«i). 1 bv Niclmls fur hIiiU'oh, aiitl tlioy were allotted to liiiii. Shortly iil't( rwnnls the coinpauy was re'-istored, njxl by its uiemo- raiKhuu of nssaeiation its ohjects were stated, to l»o not only l.» niw i>oultry mid deal in poultry and e<,'j,'s, lut also '• the denhii},' in puiio and wild birds, the eultivatittn and ^'rowtli of vpnt'tnlik's, fruit, and agricultural produce, the accpiisition, iisP, iin'ss of the company, and the carrying,' on the busi- nesses of poulterers, e«^}^ merchants, dealers, market {gardeners, mid fiiniu'rs." Nichols took no part in the ju'ocecdings of the lonipiiiiy, and did nothing whatever excejit pay for the shares (III iillotiiieiit. A year after the alloV.ni.!ii he, for the first time, became acquainted with the objects of the company as |(iniii'(l, and he at once n^pudiated his shares. The V.-C. Wood removed his name from the register of share- lioldeis, being of opinion tiiat there was nothing to put Nichols on iiiipiiry, and that under those circumstances the I lime wliich hud elapsed since the allotiuent of shares was liinniiiti'rial. Ill lltiil/is CM'.' (ill), a pers«m applied for sliaii's, and paid the Biiil/s cose. |il('l)(isit on them; the company was afterwards registered, and jit ihsiicd another prospectus, nniteriiUly differing from the first ; the sliiires were then allotted, but this was some months after Itlu' aiiplication for them ; the allottee d«'(dined to accept them, Iftiid asked for his ni but us sliowing, that even although the memorandum of asso- ciation and the prospectus may not vary, still a material lltpartnre by the company from the prospectus on the faith of piiicli slmres are applied for, entitles the applicant to decline accept them. {m) Kr jun-k lUiilij, 3 Cli. 592, 503, \\lierc the company was being nil .) Eij. 428. wouiul lip. j [>i] t''fn]):irc Hare's catr, 4 Ch. al^■ lEl / I 28 rORMATION OF COMPANIES. Bk. I. Chap. 1. . Scot. 2. RcpuJiation too littc. Apji'iication f.T sliaroH iiftor a conipiiiiy ii foniic'l. On the othor hancl, where a person knowing the ch!Ui<2e (f the objects of the company dehiys to repudiate his shares, he will be tveated as electing to hold tliem, and any subsequent attempt to repudiate tliem will be unsuccessful ; and a delny (,{ four months has been held fatid, even although durinj,' tliiit time the shareholder had done nothing which wa:^ inconsistent with his repudiation {»). But the onus of proving such know- ledge is on the persons who made the misrepresentation, anil proof by them that a letter containing a notice of the misreim- sentation was sent to the registered address of the persmi seeking to repudiate his shares is not sufficient to fix him wiili notice of the misrepresentation, if in fact he had no knowledge of the lettor(7»). It need hardly be observed, that if al'tii | knowledge of the facts entitling a person to repudiate liis shares he acts as a shareholder, e.tj., by attending meetings, paj'ing calls, or attempting to sell his shares, his right to repu- diate them will be at an eml (7). Further, if a shareliolik:' knowing of one ground of variance, or having his suspicidi;; aroused, chooses to remain quiet, it will be too late for liiiu 1 afterwards to re^judiate his shares, and he will be a contiildi- 1 tory (;•). So will delay be fatal after the right of the share- holder to repudiate his Khares is denied (s). In all the foregoing cases it will have been observed that tin application for shares preceded the formation of the coiDpaiiy, AVhere a company is actually formed, and a i^erson afterwaiil- applies for shares in it, and they are allotted to him, an ngm- ment between him and the company is thereby concluded, mil in the absence of fraud is binding on both parties. In such :i| case a definite thing is applied for, vi::., a share in an existing companj', the ubjects of which are defined by the (.'onipamJ act of Parliament or memorandum of association, witli «huiil he can make himself acquainted ; the thing applied for ii| acquired ; the contract, therefore, is complete and can only impeached, if at all, iov fraud (/). (0) Laiirenci^n atse, 2 Ch. 412 ; Kiiicaid's case, ib. See, also, Wil- kinson's case, 2 Ch. 53G. (p) In re London and Staffordshire. Fire hisuranc. Co., 24 Ch. i). 149. (7) Sco Eji itarte Uriayn, 1 ■ ' 4^3. ()•) If'hili'house's cane, 3 Kip ":•"■ (»■) Taik'it cc(se, 3 Ec^. 7!)">. (0 See Lord Cairns' jiulgniMlii RETURN OF DErOSlxS. 29 The subject of fraudulent prospectuses will be referred to Ck. I.cimp. i. luroiifti'v (sec Book J., c. 8). S'-TION 3.— ;)? TIIK RRrt'RX OF SUl'.S JRIPTIO.VS TO COMPANIES, OX THE UROUXD OF FAILURE OP CONSIDERATION. Before leaving the subject discussed in the foregoing pages, it will 1)0 convenient to consider the circumstances under which an allottee of shares, who has paid a deposit upon thorn, has a ii,'lit to have this deposit returned, upon the ground that the consideration for its payment has failed. His right to be relieved on the ground of fraud will bo considered hereafter. It has boon decided by the House of Lords, that if a number Subicriipor to a .... 1 ■ 1 • • SclietlK! Mot ilt (if persons, meanuig to joui m a common undertaknig, raise a |ii,eny tj retire common fiuid, cventuall}- to be increased, but commencing by ^'''"" '*" a (li'iiosit, and thoy put th^se deposits for a common object into tlic hands of a committee, with directions to them to do certain acts, it is not competent for any one or more of the subscribers against the will of the others to withdraw and say, "I tliiiik, or we think, you ought not to go any further." Any one subscriber who is not of that opinion has a right to say, " I gave my money upon the faith that we all embarked in - one common undertaking, and till that has been done, M'hich we agreed should bo done, none have a right to withdraw and say you shall not go any further " («). It follows from this, that no subscriber to a projected company can recover back his money on the ground that the consideration for his subscrip- tion has failed, until the formation of the company upon the PitHscase, 2 Cli. G84, and the juilg- iiieiits ill Kifch v. Central liailmiij (>l Vmaueht, 3 De G. J. & S. 12i', anil L. R. 2 II. L. 99; Ouhcs v. Tnrfmiitl, ib. 325 ; and see as to the iiuiiiateriality of altering the articles of association, Lym's cast; 35 Buav. G4G. (ii) ]'>aird V. Ross, 2 Maciiuceii, CI, Sec, too, Lunus v. Pennell, 2 H. L. C 4!)7 ; coiupare Koit v. Jau'^son, 14 Bear. 3(i7, and 2 De O. Mac. & (!. 4i). As to tlie ri;;ht of sciip liolilurs to have the money subscribed by them applied to tlie purposes for which they subscribed it, see Bagnhaw v. 'The Eastern Union Hail. Co., 7 Hare, 114, and 2 Mac. & G. 389. J)0 lOlt.MATION or COMrANIKS. »k. I. Chap. 1. Sect. 3. UnlesM it has failed. 1. Siibscribert) tu abortive cuiii- panics not lialilo for expenses incurred in attempting tn form them. Nockells V. Crosby. terms assented to by him (r) has been abandoned or has become impracticable. But further, when a i)erson applies for shares and has them allotted to him, a contract is entered into between him and otl'.ers, and before any question as to failure of consideration can be discussed, the terms of this contract must be examined for the pui'pose of ascertaining precisely for what the deposit was paid (7, and 4 ih. 1. (h) Johnson v. Closktt, 18 C. R 728, and 3 C. IJ. N. S. 509. In this ease the company was actually at work, and its formation had never been abandoned. But its formation, on the terms originally agreed upon was abandoned, and the plaintiff had not assented to any others. 82 FOUMATION OF COMPANIES. Lk. I. Chap. 1. Sect. 3. No lien for ilupusit. Calls on sub- scribers to aboitive com- I'auies. 2. Deposits not returnable wlien piiiil to cover j)reliiuinary expenses. bound to exocute tlint, if it is inconsistent with the contiatt I into which he has nh'eady entered. Consequent!}', whfie a person applied for shares in a projected raihvay and paid liis I deposits, and undei'took to sign the parliamentary' contract ami subscribers* agreement, and a deed was afterwards propfireill authorising the promoters of the company to apply the deposits in defraying preliminaiy expenses, it was held, that this was not such a deed as it was obligatory upon the allottee to execute, and that, the company having proved abortive, he was entitled to recover his dei)osits althougli it would have hm\ otherwise had he executed the deed (r). Even where, upon the foregoing principles, a subscriber is l entitled to have his deposit returned he has no lien for it aiiiij cannot restrain other creditors from attaching it (d). It need hardly be observed that, if a person has agreed ti>| pay a deposit in respect of certain shares, and the considoratioal for his agreement has failed, he is not compellable to pay tliel deposit ((')• But if a person undertakes to pay deposits bval certain day, it is no defence to an action for not paying tliemj on or before that day, that since that day the projected (.•ompniijl has become abortive ; for, jierhaps, that would not have beetl its fate if the subscriptions had been paid as promised, ami (i\ hyputhcsi, the promise was broken before the circunistaiui< relied on as an excuse for its breach occurred (/). In the cases referred to above, the deposits were held retunij able upon the ground that they had been paid for one pmpii^l only, and that such purpose had become unattainabk'. those about to be referred to, the deposits were held not rctuixj able, although the ccmpany subscribe(] to had proved abortivt;! for the contract of the parties showed that the deposits win| properly applicable in discharge of the expenses incidental the attempt to form the company (), lic'h decided tluit a person who had paid de]ioslts and pcuted a deed authorising their application in jiayment of Dk. r. Clia;.. 1. Sect. 3. (iarwoo'l v. EJo. Clements v, Todd. fiuea Jones r. Harris .u. AlJliam V. Hrow.i. }) 1 Ex. 204 ; see, too, Wutt.i v. 10 C. B. 477 ; Vane v. Cob- Kx. 7!i8 ; Atkinson v. Pocod; I; XLaniiig tlie pieliiiiiuaiy ox- Ves. See U'Ulf,, v. Pa mitt, 3 11 ; UiiirJ V. Puss, 2 M'(^ue(Mi, 1 Kx. •2i'f- ; coiiipar« .{.■iltpUd f'l'umic, 5 V.\. 147; ^ibmi v. Edgirorth, 2 De O. & Sni. 73. (0 2 E.X. 52; see, too, U'illei! v. Pan-att, :', Ex, 211 ; Ihiird \. Itosi, 2 M'Queeii, Gl. (»i) 7 E. & B. 164, an.l 2 E. & E. 398 ; see, too, Duh: v. Uiir, 1 Ex. 3G ; Duke v. Forbes, ib. 35t>. (») 1 E.\. 264. (") 10 C. D. 477. Ciiscs ill wliicli deposits have been liild rctiiniablo, altlinu;^!) tlie coiiijiaiiy's dfed has bt-'cn signed. 34 l!k. I. CImp. 1. Sect. a. ! Eviilcnce in actions for tlio recovery back o^ deposits. Evidence of the receipt of tlie money by the defendants. I'onM.VnoN ol' COMTANIKS. lU'eliminary expenses, could not recover tlu; deposits so jifiii], are not to be regai'ded as authorities for the propositioii tliatj the execution of such a deed necessarily, and under all cirruni' stances, precludes the recovery back of the deposits. If execution of the deed has been induced by fraud, the right ti | recover the deposits is unaft'ected by such execution {}>) ; ai although it was said in Watts v. Sdltfr that in the absenrt oil fraud, the deed, and that alone, regulated the rights of the coiJ tracting parties, yet this doctrine has not altogether met witli approbation: and in u later case, where the pi'omotois of railway company had in their circulars and letters of allotnietij expressly undertaken to return the deposits in full, if M necessary act of Parliament could not be obtained, it was Iielil first by the Court of Queen's Bench, and afterwards by tk Exchequer Chamber, that the deposits paid were recoverd in full, even by persons who had executed a deed whereby i;| was expressly stipulated that the promoters sliould be indeiij nified out of the funds of the company and by the subseiib shareholders against all expenses («>'■ *"""* *" ^^'"^'^ tliey Jmve been fought an action against three tl7 T ^'^' '^'^ 1'^'""^^^ ^^■^'-'" '• ai j'mti feiits and Jialjiliti( night he eiifoived n It is to ho reinem eoiisidercd as ai hr betwfeii this (, flietlier there is wa fiich he is vohuitai bis counti'v and Jiol ^t tliorefure be afTe k» this counti-v ar ^^ithreferenee to t h ""S'lf, it is fon I'fre its ])nncipal ] pi'i'ice of busine..!. f^M,rht V. tiussmu, [""'•^'"; f-'- l"'rie /!o '/^-•:i; /'ott, y, Ji,,/,^ ■ . •""'■ ll.c note to Clew '.'MIKv. 141. '3 Ve,. 71. ['' ■^"'■jVrt to bein- h: [■^'•i'"ft.ofbinutation.s ,'V"'f"'' ••'-'"•o.si.eeti\ F".-'J(Amer.). AMKNS. 87 \lion t'licmii'S stiuul in a very dirtcreiit position from alien Hk. I. Chap. 'i. Ifiieiids. lor when two supreme powers are at war all persons, I . 1 i- 1 • XI 1 • i !■ -it 1 • Alien enemies. Ivlio for tlio tune being are the subjoets ot eitiier, become, in oiitiiuiiliitiou of the civil tribunals of botlj, hostile to the Biilijects of tiio other ; and so long as the war lasts, the subjects ,r the time being of the one country are incapable of entering Unto any valid contract with the subjects of the other; and all remedies available for the one against the other in respect of rnnsactioiis before the war are suspended ((/). Consequently livhile war lasts an iigreoment by an alien emy to become a puinlior of an Knglish company cannot be cnforce(' The ^likt (it !i person who is a member of a company becoming an t'iiii fueiiiy l>y a declaration of war has never been decided ; \\\\.Kx i>(titr Jiousanuilicr (c) tends to show that such a person juultl not ipao J'(ivt<» cease to be a member : but rather that his iglits and liabilities would be suspended during the war, and oiglit be enfoi'ced upon the restoration of peace (/). It is to be remembered that whether a person is or is not to considered as an enemy depends, not on whether there is Lir between tliis country and his native land, but upon ilietliur there is war between this country and the country in Ifliich he is voUnitarily resident (ry). A foreigner resident in his country and holding shares in an English companj' would lot therefore be affected as regai'ds his shares by a war be- neeii this country and his own (//). With reference to the legality of trade and commerce, a com- Resilience of tiiy ought, it is conceived, to be treated as resident not only *""" lliere its principal place of business is, but wherever it has by place of business (»"). It has, however, been determined, f!] AUirecht v. Smsinuii, 2 V. & ',\i'i ; )/'i7//*))( V. ]\tttet:iiii, 7 Jimt. 411); Kj- i>r Yoii- Lifi' Ins. Co. v. Stathmn, >UM,i4(Amer.). ((/) Albircht V. Sussman, 2 Ves. & r.. -Mli; nnilU;n v. I'ath'son, 7 Taunt. 440 ; Hourid v. Monin, .'} Camp. a03 ; BHl v. Had, 1 JI. & S. 726. (/i) See //'(.//a- v. U'illidfiis, 1 L. Kaym. 2fS2 ; 1 Salk. 46 ; and the cases in tlie last note. (i) See Carron Co. v. Maclai-en, .5 H. L. C. 416, and Lewis v. JhUdiciii, 11 licav. 153, from which it appears that for some purposes at all events 38 siUHi;iioM)i:its. I lik. I. Chap. 2. tliat for the purpose of docidiiif,' whether a company dwilK - — - — withhi a particuhir district, regard ought to be had ratlior t^ the ph\('i' where its husiness is principally carried on tlinn tn the situation of its subordinate oHices (A). A registered company does not necessarily dwell whore ii< | registered oflice is situate (/). A note on the subject of foreign companies will be foiuid ii: | the Appendix. 2. Convkta. The old law by which the property of felons was forfeited! the Crown was abolished by 83 i^ 34 Yict. c. 23 {m). T|J Crown, however, is empowered to conuuit the custody iinj management of the property of any convict {i.e. a person son- tenced to death or penal servitude)(§ 0) to an administrator (^ifi in whom all the convict's i)roperty then becomes vested (!) 1(1, j and who can dispose of the same as he may think fit (§ 12. A convict cannot alienate any of his property nor make niiji contracts, nor maintain any action for the recovery of ami l)roi)erty, debt, or damage (§ 8), except when lawfully at laij;, under a proper license (§ 30). Provision is also made for tlij appointment b}' a justice of the peace of an interim curator "ij a convict's property (§ 21). There have not as yet been any decisions on the apphcatioil of this act to convict shareholders. But several impoitaiJ questions are suggested by it : c.rf. Is the administrator, liml self a shareholder, liable to pay calls and to be a contributonl in the event of the company being wound up ? or is he entideij to sell and transfer the convict's shares without becoming i sliareholder himself ? Sect. 10 is so worded that it may iMi| sibly be held to make the administrator a shareholder siuipl by virtue of his office ; but when the section is applied to tii rosition (if tlio lulmiuistratoi'. companies may be considered as resi- 404 ; Taylor v. Crowland Gas C% dent in more places than one. Ex. 1. (/;) See Jon(.<: v. Scottish Accukid (/) Cesena Sulphicr Co, v. KA Insurance Co., 17 Q. B. D. 421 ; son, 1 Er. D. 428 ; Calcutta Ji Brown v. Land, and X. IV. Hail. Co., Mills Go. v. Nicholson, ib. ; Km 4 B. & Sm. 3iU ; Shirld v. Umit X. shaui Blue Lias Co. v. Barker, 2^ Hail. Co., 7 Jnr. X. S. n:)2 ; Adaws C. 72!). V. Cnat W. h'ail. Co., (i H. v^ N. (m) Paitn. 7:{. INt'AXrs. 89 simrt's of iiiiy i>iirti(ular i-ompany, tlio company's act, cliartor, I'-k. ^ ciinp. •-'. oi'iT^'iiliit ions may ciiablo the adininistrator to dispose of the shiiivs vi'sted in him without liimself ho('omiii<5 ii shareholder, ami inclining personal liability as such (see also § 12). t). liijaittn. All infant may he a member t>f a company, but he cau leimdiiito his shares whilst he is an infant or on coming of litre (»). All infant, Jiowcvcr. cunnot hold shares and decline to pay jtlio calls in respect of them. He nuiy, if lie chooses, repudiate iiis sliiu'os and si) get rid of his liabilities (o) ; but if he does liiDt ivpiiiliate the shares, he must pay calls like any other jiiliiirt'iiiiMor (j>). Qui scntit coiitiuodtnu Hfntiir ihhit et o)tu.s. If II company's memorandum of association is signed by an [infant, his signature is by no means inoperative. The incor- jliiinitioii of the company is not affected by it : and he becomes , member until he repudiates his share (7). All iiifiint who has had shares in a company transferred to iiiiii, may be rejected as a shareholder by the company on fiiceitaining the fact of his infancy (r) ; but the transfer is Voidable only and not void, and unless repudiated by the com- pany or the infant will be held good (s). The Infants' relief act, 1874 {t), which renders invalid pro- h) Cii. Lit. 3806 ; JJiihlin and t'kklow R'lil. Co. V. Black, 8 Ex. I ; ami soe Mitchell's case, 9 Eq. |B3; aiul Ebbett's case, 5 Cli. 302, luiliersof that cla.s3. If a coiu- fcnv is beiiij,' woiuul up and i.s iii- llvt-nt, (if cuiirsu it will be for the pielit (if an infant sliareholiler to jpuiliate his shares, nncl so avoid iiii;' made a contributory. See lirsWif, ii lieav. 318 ; and iafru, ic'k iv., uink-r the licad Contri- ItlJtiC.i, i-; /.o(i(/. and X. W. Rail Co. v. p/iV/i((f/, ,") Ex. 114 ; Newnj and fiiifk'dhii Ititil. (Jo. V. Coomhe, 3 ■''II'), ami tlic cases ivfcrred t-J. 40 SlIAnRIIOLDEns. Bk. I. Chip. 2. Sect. 1. misoH luade by ptTHons of n{H' to pny debts coiitractcd (luring ■ their minority, docs not apparently aflect the position of person* who become sharehoMcrs before they ant twenty-oiiO, and retain their shareH after they eonie of age. The position of infant sliareholders on the winding up ni I companies will be alluded to hereafter when treating of tun- f tributorics. 4. Tji ltd tics. Although eontnicts with lunatics are not necessarily VdR and lunatics not known so t(t be may become liable in (laniiisi> for goods supplied to tiiem («). yi't a lunatic cannot be vu'.w- pelled spocifically to perform a contract, nor can he ol)tiiiiiii| judgment for specific performance against other people (/.I But a lunatic may become a shareholdor without his insniiiijl being known ; and if he does he cannot repudiate his shares!// : whence it follows that ho is entitled to dividends, and is liablii| to calls in respect of them. A lunatic who is so found by in(iuisition, and whose proinitvl is under the care of a duly appointed connnittee, is not in J position to bind himself bj' contracts or to deal with his o«iil property. Shares belonging to him remain his, and he is liu to calls and to be a contributory in respect of them ; but liiil rights in respect of them can only be exercised by 1]!!| committee. By the JiUnacy regulation act (16 &. 17 Vict. c. 70)i;), llil committee can sell and transfer them without himself bccomiiij a member in respect of them ; and this power is usually ex«l cised if the holder of them is under any liability to have (aiij made upon him. By the Trustee act, 1850 (13 Sc 14 Vict. c. GO, § 5), sliam| standing in the name of a lunatic trustee may be transfeiTei by a person appointed by the Lord Chancellor for the puriinstj (h) See Drew v. JV(«ui,4 Q. B. D. 601 ; Baxter v. Earl of Portsmouth, 6 B. & C. 170. As to lunatics so found, see Srioyi V. IVatts, 11 Beiiv. 107. (u;) See Fry on Spec. Perf. (ij) See Muiilton v.Ctmnvui.il 487; and 4 ib. 17 ; Beanoi v..ll'| Donnell, 9 ib. 309 ; and 10 il>. h\ (•.) See §§2, IK!, 120 123, WjJ 144. As regards inai U> (listiiiguish tlifi limt' imiie. A married woni M few cases [n), po lulled to take .shai I she be coiui)eIled ji-' she liable to jii I may have been in 1 jimiiip(//). ^\hQ{\^^ \u culls ill respect c lcoiii|miiy. iJiit if; I li iiaiiiljcr of the c }vitli tlie statutes b} ill respect of them {< A married woman bstraiiud from anti( jliuii of a /cmc sole { lerself liable to pa' lilt' extent of such St Y the coiiipany slie lliares to the like ex fespect of such shares A married woman (") ''■■•. I, )\'],en ],er h i con\ictwl felon ; 2, wl Wicially scjiaratecl from flieiiclielia-) obtained a rtfened to below. ('' See as to his Hon-lia """!''' 'I contributorv '•'^e<'. &Sn,. m\' fh 7 ^V. ]{. 510. 1 MAlUtlKD WOMEN. 41 6. Married women. Hk. I. Chap. 2. Soct. 1. As ri'"iu'ils nmrriod women, it is nccossary in tho first pliioc* t,i (listin{,'nisl» those who Imve sepiirnte estate from those who llilVO IKMIf. A iimnied \vt)nmn without sepixnito cstiito cannot, except in Xoncparate II tow c'ftses (((), oontnict as a principal. She cannot be com- iiilled it) take shares wliich she may have applied for ; nor can kill' be comptllL'd to pay for them. Nor, apart from statute, |i^ she liable to pay any calls in respect of any shares wliich imiivimve been in fact allotted to h(>r ami are Htaii(linp[ in her nniiio i/'i. AVhether her husband is a shareholder or is liable jt) cills ill respect of such shares depends on the nature of the Iciimpiiy. Vtnt if, as often happens, he cannot he regarded as III member of the company consistently with its regulations or |uith tlie statutes by which it is governed, he will not be liable ^11 respect of them (r). A miuriod woman having separate estate which she is not Sciiarate estate. I'estrained from anticipating is, as to such estate, in the posi- lion of a /one hoIc {| wife's shares, whether before or after the marriage, if he lias in fact obtained by the marriage property of his wife to the value of such calls (/<). Further, in tlxe event of the conipauj being wound up and his wife becoming a contributory, he i? liable to be put on the list himself (o). His liability to call- is confined to the continuance of the marriage (2>), but not ; the amount of the property acquired from his Avife (7). The Married woni.i!''s proiierty act, 1882, § 17, enables tli husband or the wife or the companj- to obtain a decision as U his or her title to shares, by summons or otherwise, in ;; summary Avay, before a judge of the High Court (/»). Date of nmiriago. It is necessary to mention that the date of marriage is some| times material ; but on this point it is sutHcient to refer tli'i reader to the Married woman's property act, 1882 (45 i^ ifi\ Vict. c. 75). (h) lb., §§ (J, 7 ; A*, v. Carnatic Hail. Co., L. I{. 8 Q. K 290. (0 lb., § 7. (k) III., §§ G & 7. {I) 45 & i() Viet. c. 75, §§ G & i:i. (?«) See Luard's case, 1 De G. F. & .T. 533 ; Buiiiuson's case, 3 De G. & Sm. 18 ; Sadler's case, ib. 30; KhluCs case, ib. 210; IVhite's case, ib. 157 ; Expinie Hatcher, U Ch. 1). 284. (u) 45 & 4(j Viet. c. 75, § 14. (0) Companies act, 18(52, 5 ' K.r parte Hatcher, 12 Cli. D. ^JJ i) Sue tin; section. ('/) See Kc parte Hatcher, l-ii- D. 284 ; (lecideil on the Marrifil woman's property act, 1874. There is no | ration from lioh that a corporat I jioses not antho k the legislatu I imiiics, tliat co [ 1111(1 at conunoi iiiiother (.f). Ac iibove princi])Ie I ill another (t) ; a I'nictically, liowe |r('n',5 for one co jso to do must L (to it (.r). SI'X'Tlo.V Genenilly .s])oal K11111' formality to bmiiiie ii nienibei biitilled to retire a cuiidition.s or furmj Ascertained by cxa: ('■) «ce lur u.xanijd |)rtiii..s' art, 18G2, ^< itfi'invtatiuii put t,n it I'l'l in lldlc (t) ; til, PJ Vm: Sue. act, 3<) . f'n-'(4); 7 ^Ym. Kc.73,^^^;c&10; . ['•''H3&7,(.S),aml§ W Oiant oil Corporat] [W i:^ parte Co,, tract C P'' -'52, iinj 7 Krj. 91 •• A '■•■n.oration cam SIIAUKHOLDKKS. 43 6. CoypurutioDc and Cominmies. Bk. I. Chap. Sect. '2. There is no ''eiieral principle of liiw '.vludi prevents a corpo- » onwrations, ration fioni liolcling slmres in a conipanj- except the principle partners, that a corporation cannot lawfully emploj' its funds for pur- itoses not authorised hy its constitution. It has heen assumed l)V the legislature, in many of the statutes relating to com- panies, that corporations may lawfully he shareholders (/•), jaiul nt (Oinmon law one corporation may be a member of 1 another (s). Accordingly it has been held that where the tibovo principle does not apply one company may hold shares [in anotlior (0 ; although not in a benefit building society (h). I'ractically, however, it may be said to be prima facie ultra r/Vcs tor one company to hold shares in another : /.r., jjower |so to do must be shown to be eypressly or im^diedl}' given Iti) it (.(•). SI'XTIO.V II.— WHAT C'OX.STITl'TKS MEMUKUSIIIP. Geut'iallv si)oalving, some condition has to be i)crformed, )^'"' ''/^ ""'"'■ i- ^' ^ >■ ' luT.S of COIU- sonic lorninUty to be observed, before a i)erson entitled to iiimie.s. (inie a member actually becomes one, anci before a perso Entitled to retire actually ceases to be a member. WJiat these conditions or formalities are in any particular case can only be Ascertained by examining the act of Parliament, charter, deed r) ISeo I'ui' cxiunjili' the Coni- ^iiiiiis' act, 18G2, § ^3, and the nki'iiivtatiun jiut oil it in tlie cases litwl ill imti; {t) ; the Industrial Vid \\w. Sol', act, 3S) & 40 Vict. c. Is, § !:> (4) ; 7 Win. IV. aii.l 1 |ict, c. 73, ^S^ & 10 ; 7 & 8 Vict. c. |l', h^ 3 & 7, (M), and § OO. Uiant on Corporations, p. 5. \{f) Ej- imrte Ciintrnct Corp., 3 Cli. ) ; llo>jid Hank of India's raar, 4 .2.)2,an(l 7 Kq. 91. ") IhiliuiMiii V. Haivl,:", Ki Sim. A lurporation cannot l»e trea- surer uf a friendly sijioty, Ex parte Swansea FrietuUij SDcicfij, II C'li. D. 708. (..) See Great W. ]lail. Co. v. Mdrop. Rail. Co., I) Jur. N. S. noi ; K.C j)artc Contract Corp., 3 Ch. 10.') ; Ej- paiie llritish Xation, tt'C, Axs. , 8 Ch. 1). 679, where it was lul.l that a society to wliich sliares in another society liad heen transferred by an act ultra vires, could not lie )ilaced on the list of contributoiie-; of tliat society. u SHAREHOLUEKS. Bk. I. Chap. 2. Sect. 2. Necessity of observinj; formaliti;;.'!. " & 8 Vict, c. 110. or other instrument by which the company is governed ; and care therefore must be taken in applying decided cases to attend to the constitutions, of the companies to which tlicv relate (y). No ])erson can, properly speaking, bo said to be a member of or shareholder in a company so long as he has only a riglit to become such ; nor "can a person who has become a member or a shareholder be properly said to have ceased to be one so long as he has only a right to retire. If a person who is not a shareholder omitss to do wlmt is I necessary to render himself a shareholder, he remains a non- shareholder, although very little may be wanting to render I him a shareholder. On the other hand, if a person who is .i i shareholder already omits to do what is necessary to retire, he continues to be a shareholder whatever intention he may I have had of withdrawing from the company, and whatever pre- liminary steps he may have taken for that purpose. In these cases that which s necessary to change an existing state of I things has not happened : the right to enter or leave the com- pany has not been exercised ; and until such right has been exercised membership in the proper sense of the word has noil been created in the one case, and has not ceased in the other. Subject then to the qualifications to be mentioned presentkl before a person entitled to become a member actually beconiei one, all necessary conditions must be fulfilled. There are many cases in the books illustrating this principlf, and to which it may be convenient shortly to refer. The repealed act 7 & 8 Vict. c. 110, defined a shnreholdti to mean any person entitled to a share, ami who had cxecuteil the deed of settlement, or a deed referring to it (z) ; and it \va:| held that no person was a shareholder within the menninji (i/) As to the cousti'iiclioii of acts of Parliament, aiiparently inukiii'^ payment by an allottee (ur s-onie ciiialification) a condition precedent to his becoming a shareholder, see East Gloucestershire Rail. Co. v. Bartholomew, L. R. 3 Ex. 15 ; Mc- .Eiien V. JFcst Loud. Wharves, the, Co., 6 Ch. C55, and Portal v. >;„ 1 C. p. D. 201 & m and as to allotting slian-s IjifoRl any l)U.-~iness can be carried oii,i«| Eximrtii Ward, L. H. 3 Ex. 1»'. (;;;) See 7 & 8 Vict. c. 110, S3 this definition did not apply '' mutual insurance societies : seet!»| section. SHAREHOLDERS. 45 the act if lie had not signed the deed, although he might he i-k. I. Chap. 2. entitltd to shares and be registered and returned as a share- — holder ('()• Other cases, in which the non-execution of the company's Non-execution deed has been held to prevent a person entitled to shares in a " "^*'' ' company from being a shareholder therein, will be found in tlie note below (h). A^ain, by the repealed Joint-stock companies act, 185G, it 19 & 20 Vict. c 47 was declared that every person who had accepted shares in a " registered company, and whose name was entered in the rc'ister, and no other person (except a subscriber to the memoraiuUnn of association in respect of the shares thereby subscribed for by him), should for the purposes of the act in i question l)e deemed to be a shareholder (c) ; and in the articles [which, in the absence of other regulations applied to companies registered under the act, it was declared that no person should be deemed to have accepted any share unless he had testified his acceptance thereof, by writing under his hand in such form Ins the company from time to time should direct ((/). Under these ])ro visions it was held that a person who merely agreed [to take shares, but did not testify his acceptance of -Ihem in [the particular form required, did not become a shareholder, [idthough lie was registered as such (<•)• Upon i)rocisely the same principle a purchaser of shares in Puidiascrs of ja company is not a sliareholder in it until he has made himself jsuch by complying with its regulations as to the admission of Imenibers (/) ; and, on the other hand, a shareholder who has (d) Bailij V, Universal Pror. Life \Amc., 1 C. 15. X. S. 557 ; Moss v. ISf.-iw Gondola Co., 17 C. B. 180 ; l/'i'i7/.i')iso(i V. Amjlo-Californian Gold |(".,18Q. B. 728; Stevart v. iiamc, lb. T3G. Tlie registrar's certificate [that a pursoii h;ul been retained as sliaruliolikT was jicnucJ facia evi- iiuce of Ills being so. Turnur v, fldropolitan Live Utoclc Co., 2 Ex. CO Iriih Peat Co. V. Phillips, 1 B. B: Sin. ms ; Carmarthen Rail. Co. v. Wniihi, 1 Fos. & Fin. 282 ; Galvan- i-:ed Iron Co. v. jrvstohij, 8 Ex. 17 ; Watcr/orJ, d'c, Hail. Co, v. Pidcock, 8 Ex. 27!). (c) 1!) & 20 Vict. c. 47, § 19. (d) 1!) & 20 Vict. c. 47, table E. (f) Xcir rirunswiclc, dr., Pail. Co. V. Mwjgcridjc, 4 II. & N. IGO and 580. Compare this case with Pnr;i!s. i Lk. I. Clmp. 2. sold Ills slinros ronuuns a slnircholder until llic i)ui'fli:iS(i' ha, f^ect. 2. , , . , taken his plncc (l E.\. 27!); Carmarthen Rail. Co. v[ Wright, 1 Fos. & Fin. 282. (0 Midland Gt. West. Rail. Co. v.j Cordon, 16 U. & W. 804, unci othtil cases of that class, noticed antf \iS.\ and post. See, also, Ijfishimn v| Cochrane, 1 Moo. P. C. N. S. .-Jl.!. (m) See, for examples, /."i^irarAv I Kilkenng Rail. Co., 14 (.". K'S.ij r)26 ; Fo.v's case, 3 Dc G. J. & S. i^ Higgs'a case, 2 Hem. & M, fi-")7. SIlAlir.lloJ.DKIiS. 17 u nersoii who lifts iigroed to beconu' a momber, nnd with respect Uk- 1- iM'- '- t(i whom all conditions precedent to the. acquisition of the lights of a member have been dulj* observed. Where all these circunistances are combined, there is membership in the fullest 1111(1 most accurate sense. This, indeed, would be too obvious I to require express statement were it not useful to have present to the mind a standard b3' which to judge of other cases. In praftice difficulties are only presented where this standard is liiot reached ; and the important question really is to what [extent it can be departed from, and membership be neverthe- lless constituted. In the tirst iilace, a person bound bv agreement with a com- Men'''ersliip m i- ' ^ . o equity, though Ipany to take shares in it, can be compelled specifically to not at law. Ilieifoim his agreement, and on this principle he can often ue Itreated as a member in equity (//). There are endless cases in jthe hooks in which persons not shareholders in the strict and jiroper sense of the word, have nevertheless been held to be Iconti'ibutories on the winding up of the company (o). But the ■equitable maxim that what has been agreed to be done is to be Ircated as done, is only a consequence of the more general principles applicable to the specific performance of contracts ; find tlie maxim only applies as between the parties to an agree- |iient of which specific performance can be decreed and their repi'esentatives. If therefore a person has agreed, not with ilie company or its agents, but with some one else, to take shares [in the company, and such person does not perform Ihose conditions which are necessarj' to render him a niembe)* lliereof, then whatever his position and obligations may be p between himself and the other party to the agreement, he fill not be a member of the company in equity any more than [t law ( ^»). Secondly, the performance of conditions and observance of )^^'^^^"i("^g prmalities may be dispensed with; and irregular, as distin- (n) Tlie snliject of specific per- Jii'mance .so far as it relates to shares I lie discussed hereafter. ') Tiiese cases will be noticed ^ivaltcr. Yt'lhimVs case, 5 De G. & 395, illustrates the principle. (p) See Hay v. Willoughhy, 10 Ha. 242. See, also, Humby's case, 5 Jur. N. S. 215, and others of that class noticed hereafter under the heatl of Contributories. ( ; 48 SIIARKHOLDIonS. i-oiuluut. '"'• ^■gg^''t^'" ^' guislied from void, transactions may be confirmoil. Conse- - quentl}', a person may become a shareholder to most, if not tu all, intents and i)urposes,, without complying with all tlitj formalities prescribed in that behalf by the statute, chartei', it j deed of settlement constituting the company, and altliou;;!' there may have been irregularities in the issue of the shaves ti him ; for if, notwithstanding these circumstances, he has been treated as a shareholder by the company, and has acted a? « I shareholder, both he and the company will be estopped from denying that he is a shareholder. So, if a shareholder, liaviii'l a right to retire, has in fact retired and been treated by tlir company as if he were no longer a shareholder, both he aini] the company will be estopped from denying that he has ceasdl to be a shareholder, although he may not have retired regiiliirlv and properly. This doctrine of estoppel by conduct has beeBJ fiequently recognised (7), but its application is attended witll difficulty, and involves the important question to what extent prescribed formalities and conditions can be disregardeil lui companies, i.e., by the persons who conduct their affiiirs, a whose obvious duty it is to observe what is prescribed. Ipul this question oi)inions have differed, and the non-compliance oil prescribed fornmlities has frequently been held to be conclusivl upon the question of membership or no membership, iiotwitli- standing an apparent waiver of those formalities b}' all inirtkj Moreover there are decisions Avhich show that a person wlio,i: an action for calls, is estopped from denying that he isasliaitj holder, may nevertheless show that he is not one when .siiti| by a creditor of the company. It becomes necessary, therefore, to subdivide the casHl bearing upon the present subject-matter of inquiry, aiidll distinguish those in which the question of membersliip or coiij membership arises between the company on the one part, aii| ' alleged member on the otlier, from those in which »•). -'.'on arises between the alleged member on the one part| r, (1 'i.c creditors of the companj' on the other. (q) The leading authority on the subject of estoppel by conduct is Can- V. Loud, and N. IF. nail.C.i L. R. 10 C. P. 307. EFFECT OP NOT OUSEIIVING FOUMALITIES. 40 Fir.tl, as between the companii ami an allerjed Kharehohkr. Ilk. I. Cliap. 2. Sect. 2. It lias frequently been decided, even at law, that v/here a Effect of lorson has acquired a right to become a shareholder, and he ^^cenVl?o'c?mi. IS afteil and been treated by the company as a shareholder, I'^'i.v '""' '^''c . sliaruliolilur. is liable to calls at tlie suit of the company, although he may Bt have complied with all the formalities prescribed by the Igulations of the comiiany for the admission of members. Ihiis, in Barnes v. Penncll (/•), the deed of settlement of a names ?•. Impany required certain acts to be performed by every pur- Laser of shares, before he could become entitled to exercise le ri,i,'lits of a sharehohler. A purchaser of shares did not Imply with the terms of the deed, but he nevertheless paid me calls made on his shares, and he was registered as a larc'holder. It was held that he could not resist an action farther calls on the ground that he was not a shareholder. [Again, in a case where an act of Parliament required that Sheffield, &c , shares in a company should be transferred by deed stating \voodoock. consideration for the transfer ; and a person i)urchased ares without taking a proper transfer, the transfer being in |ink, with the consideration stated untruly, but he neverthe- signed a proxy paper describing himself as a shareholder, transmitted it to the company, and was thereupon regis- ed as a shareholder, it was held, that in an action for calls [the company he was estopped from denying the validity of )h'ausfer(s). ^0 in The Cheltenham and Great Western Union Railway Chc\icnh:un,Sic., npany v. Daniel (t), an original subscriber to a projected Di"iiei.'*' "' Iway company sold his scrip to the defendant. The com- ly after its formation had notice of this sale from the Biulant himself; he claimed to be registered in respect of scrip which he had purchased, and he sent the certificates Isuch scrip to the company. The company gave him a Jipt for the certificates and registered him as a shareholder. / 2 H. L. C, 4!)7. Sh'iMd, EFl'i'.CT OF NUT DIJSIOIIVINO FonMAMTlKS. 08 llielr existence and tlie holding of thorn hy him (/) ; hut if !"<• !• p''*!'- 2. tlit'V ciUinot logiill}' exist, the person taking them cannot hy- yoiipel or otherwise hecomo a momher in respect of them. A Hmk of llhulii- itiikiiif illustration of this is atfordcd hy The Uunlc of Hindustan L 1/,V);/ (j/), \vhere one company had, in excess of its powers. iwlTiuuiited with another, and had, as part of the anialga- aiitioii scheme, issued new shares in excess of the authorised apitiil : the issue heing hekl void, it was also held, that a [ei'sou who had taken some new shares and paid on them, and [ad retnineil thf m fov some time without objection was, never- jieless, not precluded from denying that he was a shai'eholder. fliis same principle has been recognised in equity as well as law, as will he seen hereafter when treating of contributories ml of the retirement of members (/(). hi equity, tlie mere execution of a company's deed does K'toppol by ot prechulc a person from denying that he became a share- il(lor((), and it is presumed that now the same doctrine wiU Bply at law. hi connection with the doctrine of estoppel by conduct, it is EiFuct of igno- • I -I cv L o • p 1 • ^ n raiico of mutcrial lipoitant to consider the ettect oi ignorance or material tacts, facts. ipoii generiil principles it is conceived that a person who [duces others to act upon the faith of an untrue repre" [iitiUion innocently made by lumself, cannot, as against them, pic advantage of his own want of information ; as between [eia luul him they ought not to be prejudiced by the circum- anco thai he would not have made the representation if he Id been better informed. But except where a person has rmced jthers to act on his own representn.tions, ignorance of Bterial facts on his part affords a sufhcient reason for not lldiiig him hound by what in such ignorance he may have |d or done. Accordingly, it has been held that if a company, ignorance of material facts, is induced to register an im- ■ M fanqMl's ca.ic and Hippidcifs , 1) L'h. 1 ; Vkallu's case, G Ch. I ; Hare's case, 4 Ch. 50.3. L. R. C C. P. 54 & 222. The |irt (if Clumcory took a (liU'erent ■ of the facts of this case ; (sec pi. 1) for the reasons given in 9 I IT, (h) Siace and IForth's case, 4 Ch. ()82 ; iiviith's cusc, ib. 611 ; »S/jat'A;- mmi v. Evans, L. R. 3 II. L. 171. (/) Coleman's case, 1 De G. J. & Sm. 495. It was otherwise at law. See Hull Flax Co. v. WcUesleij, C II. & N. 38. -\ 01 sii.\in',iit>i,i>i:its. Itk. I. Oliaii, 2. proper triinsfor of sshivrcH, it in not prt'clinlcd from doiivlni' m ngiiiiiKt tlio triiiisfcreo liis titlo iis a Hlinrcholdor (A) ; iiltlimijl it cannot deny liis h'<^n\ titU> lus against oilier persons wlm the faith of the company's rei^'ister, or a certifioate of his tilH luive Ixnid Jiilr honght his shares witliout notice of the iiiiprl pricty in the transfer to himself (/). ElToct of vaivcr M lictwi'CIl RhnrelioMcm iinil creditors. Mors r. Steam Gondola Co. SirnmUii, as hiiween nn alleged shanhohkr and a rniHtin: Wliether a person is liable, as a shareholder, tr- be prl cceded nj^ainst by the cnulitors of an incorporated or (jiia-.l incorporated company depends upon the construction of ilj statuteor charterwhich enables him to be proceeded ayainst; in cases of this kind which have generally arisen in courts oflaij those courts have adhered very strictl}' to the language of ti statute or charter (/»)• The doctrine of estoppel has not bJ applied in these cases, so as to enable a creditor to proctJ against a person who, though not a shareholder, has bnj ti'eated by the company as if he were one, or so as to preve creditor from proceeding against a person who has not ct*| to be a shareholder according to the company's regiilntioa but who has been treated by the company's officers as no \oi\ a shareholder in point of fact. In. Moss V. The Steam Gondola Compaui/ (ti), n person lij had acted as a director of a company was held not to be lialj to creditors as a shareholder as he had not executed the ( pany's deed, which was necessary to render him a sliarelioyJ Upon the same principle, where a married woman was a m holder in a company, and her husband was not entitled to i as a shareludder until he had complied with certain regulatioij (A-) Sivim V. Anglo-American Tel. Co., 5 Q. B. D. 188 ; Hare v. London and North-Westcrn Hail. Co., Johns. 722. (/) See Shropshire Union Rail. Co_ V. 11., L. R. 7 H. L. 49G, leveraiuf,' S. C. L. R. 8 Q. B. 420 ; Ward v. South-Eastern Rail. Co., 2 E. & E. 812 ; Bahiu and San Franci-ico Hail, Co., L. R. 3 Q. B. 584 ; Hart v. Frontino and IJolivia Mining Co., L. R. 5 Ex. Ill, and see al?oa V. Anglo-American Tel. Co.,H\ D. 188. (wi) See Portal v. Emmm,\^ D. 201 & 664, and the cases cited. Compare Kiplimj v. 11 3 C. P. D. 350, and infra, Bk. c. 6, § 7. (») 17 C. B. 180. See,too,j V. Universal Prov. Life Ass., 1 1 N. S. 557. r.MIH'T <>1' Nor UllSKUVlNCi FOnMAMlIKM. 55 lit was li''M tliitt ho was not liable to bo procoodod iif^iuiist as a ''''«• ^- f""JP- ''• |gliaiiliiil(lt'i' by creditors, as he had not complii'd with thoHe ' ' — jri'fiulMtioiis, nltbontjh ho had n^coived his wife's dividends, mid llmd viitcd at iiu'otin>,'s, and otherwise acted as a shart-holder (f)). Tiu'si' priuciplos were carried to their utmost extent in another crtst", wiipro a person who luid, in fact, retired from a company, KM sought to be proceeded ajjainst as if he were still a share- IkiKUt. Tiie case in question is instructive, as it was litigated both at law and in equity, and was carried to the ] louse of [.onls ; it moreover shows, better than any other, tlie different ic'iiili'iiiit's of the old Courts of law and equity to hold com- puiiit's bound by the conduct of their managers and directors in natters of mere form. The case in question was decided at law under the name of I3i>sa)iqii<:t v. Shorfiidtjr, in oquity under ilie iiaiiic of Sltortridi/i' v. Ih'Hdiiqttct, and in the House of Lords juulcr the name oilinrfinte v. Shovtiuhje. In BoHd liquet v. *S7. 25G ; Lond. and Grand June. Bail. Co. v. Graham, ib. 271. (-) lb. and East Gloucestershire Bail. Co. V. Bartholomew; L, l\ Ex. U). (a) Bain V. IFhitehaveH UailJ:\ 3 II. L. 0. 1 ; Jhsset v. Hanlwy 0. B. X. S. 524 ; Powis v. i/arJi^ ib. 533. ('<) Harvey v. Seott, 11 Q. B,5;'| Field v. Moieken::ie, 4 C. 13. 705. (r) Henderson v. Boijal Bn^ Bank; 7 E. & 13. 350 ; VAi/iWJ Boyal British Bank, 1 II, & N.C^i KKGISTKRS AS EVIDKNCK. 59 not prevent tlit; register or return from being evidence against ^^'^- 1: ^''"i'- -• others as to wliom there is no inaccuracy (d). But if what is called a register is only a rough memorandum, it cannot bo regarded, although it is sealed (e). A share ledger, however, has been held sufficient (/). 3. A person who assumes a fictitious name or whose name is inaccurately stated, but whose identity can be established, cannot escape liabilit}' as a shareholder on the ground of the inaccuracy (r/) ; and the use of a fictitious name only increases the difficulty of proving identity (//). 4. The register or return is no evidence of the membership i of a person except at and after the date at which the register [or return becomes official (i). 5. Unless the statute making the register or return evidence, lelemiy and indisputably makes it conclusive evidence, the register or return will be imind facie evidence only of the I truth of the statements in it ; so that not only may a person hvhose name is on the register or return show that his name lought not to have been there {k) ; but a person whose name is Inot on it may be shown to have been in fact a member when / (i\) Houtlmmpton Dock Co. v. [/(iWiii/i/s, 1 Man. & Gr. 448 ; London end Briijhton Mail. Co. \\ I'mrdough, i ilj. (i74. ((•) Wolnrhampton A^eio JFatcr- ^orbt'o.x. Haivkerfor(I,6 C. B. N. 33() ; 7 ib. 7i)5, and 11 ib. 45G, fcppiovi'd by the Excher[uer Chaui- BiT in /))W( Peat Co. v. rhilU2)s, 1 . & Sill. G38. See, too, Birkenhcntf, lanea^iire, dr., Hail. Co. v. Brovni- Vi'i'], 4 E.K. 426 ; Cheltenham and prfrtf IVcstcrn Rail. Co. v. Price, . & r, :m. (/) U'nkcriiluim's rase, 8 Ch. 831. (,'/) Thum^nn v. Harding, 1 C. B. . S. Siw ; Vlotrcsv. Brcttell, 11 M. i W. 4GI ; I'uijh and Sharnmn's case, h Eq. 5(i() ; Car's case, 4 De G. J. & Ini. 53. ][h) .Irthvr V. Midland Puiil Co., 3 i & J, 204. (i) Aylesbimj Hail. Co, v. Thonip- S071, 2 Ea. Ca. 668 ; Cheltenham Hail. Co, V. Price, 9 C. & P. 55. Compare Bosanqnet v. Shortrid(je, 4 Ex. 69!). (Z) See Portal v. Emmens, I V. P. D. 212 ; Hallmark's case, 9 Cb. D. 329 ; Powis v. Butler, 3 C. B. N. S. 645, and 4 ib. 469 ; Galvanized Iron Co. y. U'cstohy, 8 Ex. 17 ; IFatcrford, Wexford, tOc, Rail. Co, v. Pidcoch; 8 Ex. 279 ; Carmarthen Rail. Co. v. IFrvjht, 1 Fos. & Fin. 282 ; Shrop- shire Un. Canal Co. v. Anderson, 3 Ex. 401 ; BaiU'ii v. Universal Prnr. \^h Ass., 1 C. B. N. S. 557 ; Muss V. Steam Gondola Co., 17 C. B. 180 ; Willcinsou v. Anglo-Californian Gold Co., 13 Q. B. 728; Stewart v. Same, ib. 736 ; Edwards v. Kilkenny Rail. Co., 14 C. B. N. S. 526 ; Birch's case, 2 Dc G. & J. 10. i 60 BEGISTERS OF SHAREHOLDERS. •;!H Bk. I. Chap. 2. the register or return became official (l) .; so if no register has Sect, 3. . . been kept (?/i). 6. It follows that a company is not necessarily estopped liv its own register, 'fhis was assumed by the Court of Ex- chequer in llie Waferfonl and Wexford Bailway Comjxinij v, Pidcock («), where the defendant was held not to be liable tu | calls because, though on the register, he had been placed then j before he had become a shareholder ; and because, notwith- standing the register, he was not entitled to exercise the rights! of a shareholder («). So where a company has, in ignorance of material facts, registered a forged or improper ti*ansfer, it is | not estopped by its register from denying as against the regis. tered transferee that he is a shareholder ( jj). 7. A person improperly registered as a shareholder in a I company cannot be considered as holding himself out as shareholder merely because he takes no step's to have his I name removed (i)licable to the case, a mandamus or an injunction will be M'^n'I:™"^ •''il I ' .11 injunction. I'rnntcd to compel a company, required by statute to keep a Ires^ister, to insert a name improperly excluded (t), or to compel the company to remove a name improperly inserted (h). I A maudanuis will not, however, go to compel a company to remove its seal from a register which it has sealed, although it may be shown that the register is incorrect, and that it has [been sealed without authority (.r). A person asserting his right to be on the register must Iprove his title to the shares in respect of which he claims to be Iregistered (y), and his right to be on the register (^) ; but if he llias already been registered, and he complains of being struck loff, the onus is on the company to show its right to remove |liisname(((). It has been held that a mandamus will not be Igianted in favour of a person who seeks to become a registered JBhareholder for the purpose of being troublesome (h) ; nor in (0 E, v.Eey. of Jt. St. Companies, 121 Q. B. D. 131 ; Paris Skating Bink f.'"; 6 Ch. ]). 731 ; li. v. Carnatic ?'(i7. Co., L. R. 8 Q. B. 299, a case Jof a i.iari'ii'il woman ; li. v. Shroj)- k/iiiY Umnn Rail. Co., L. R. 8 Q. B. fiO, reversed but not on this point, R. 7 II. L. 49() ; Korris v. Irish Innd Co., 8 E. .t B. 512 ; IVanl v. f.-E. Rdl. Co., 2 E.&K 812. («) EaMiicc v. Dublin Trunk Rail. ')., « E(i. 182 ; Taylor v. Ilufjhes, 2 I". & L.it. 24 ; Shortridije v. PHisan- m, IG Ueav. 84. In Bitlloc:: v. Chapman, 2 De G. & S. 211, the Court declined to interfere, the case not Leing sufticiently clear. (.'•) Hx parte N'ash, 15 Q. B. 92. Ill) Daly V. Thompson, 10 M. & W. 309. (;;) Britixh Snyar Co., 3 K. & J. 408. (a) See IFard v. S.E. Rail. Co., 2 E. & E. 812 ; East Wheal Martha Mining Co., i3 Beav. 119, (b) See Reg. v. Liverpool, Man- rhester, <£•(-., Rail. Co., 21 L. J. Q. B. 284. 7 T^^ 62 HEOISTEltS or SHAUEIIOLDKnS. i Correction of register. «k. I. ciiap. 2. favour of a person whose own negligence 1ms occasioned the Sect. 3. . , . state of things which he seeks to have rectified (c). Moreover, where an iinjiortant question, e.g., liability to calls is actuallv ponding between a person and a companj', a summai'y applica- tion to rectify the register will not be entertained unless it can be shown that it is necessary to rectify the register in order that the real question in dispute may be fairly decided ((/), But the raei'e fact that the application to have the register rectified involves the decision of an important and difficult question is not sufficient io Induce the Court to refrain from ordering it to h°: re- "■). Nor will the Court decline to order the name of a f . ' be struck off the register simply because his shares are marked forfeited, and his name lias been already remove!. i (/^. Tho order to remove is a greet security. Where a register is rectified by order, it should so nppear on the register (;/). Where a person on the register applies to have his name struck off, and the name is alleged not to refer to him but to some other person, the Court will not expunge the name until satisfied upon the question of identity (h). The right of a married woman to be registered 1ms been noticed already (j). With respect to the registration of titles to shares, it has been held that a company is not bound to register complicated (c) See Ex parte Simn, 7 C. B. N. S. 400, and Swan v. North Brit. Aiixtralian Co., 7 H. & N. 603, and 2 H. & C. 175. The extreme diver- sity of opinion of tlie judges before whom this important case came renders it unsatisfactory as a guide for the future. Compare Tayler v. Great India Peninsular Rail. Co., 4 De G. & J. 55!) ; and see the ob- servations of V.-C. Malins in 11 Ei|, 319. {(l) Anglo-French Porcelain Go. v, Harris, 5 H. (& N. 809; British Suijar Refining Co., 3 K. & J. 408. These cases, however, turned on acts of Parliament ditferentl)- \\\A\ from the Companies act, 1862, as to I which see infra. (c) Higg's case, 2 Hem. & M, 65i;l Los' case, 6 N. R, 327. (/) Martin'' s case, 2 Hem. & M.| CC9 ; Lo^ case, 6 N. R. 327. (g) See Irmi Ship-Buildiwj tV,,}i| Beav. 597. (/(.) See Wehh's case, 9 Jur. N.il 85G, where a pei-son was removeJj from the list of contributories, In his name was left on the register A\ shareholders. (i) Ante, p. 41. CORRECTION OP REGISTER. 68 Jeeds of transfer, e.g., marriage settlements, by which shares "k. I. Chai). 2. Brc nssi^iied to trustees upon tlie usual trusts for the husband ■ iiiul wife, and their children (k). Companies are too frequently in the habit of altering their Right of r-om- Dwii registers by striking off the names of persons whom they 1^ register. ' lilo not wish to recognise as shareholders and by substituting Dtlier names in their places. Such proceedings cannot be too Btrongly reprobated {/). When once a i^erson is registered as shareholder, and his name has been since removed, the onus of justifying the removal is on the company ; and it has been held that even where his title is defective the company bus BO ri"ht to strike off his name unless his shares are claimed by person establishing a better title to them {m). A company jian however rectify its I'egister in order to correct its own aistakes («)• A person entitled to be registered as a shareholder by a Actions for im- ... .. • i ,1 ,1 proper exclusion ompany can manitam an action aganist the company, or those £i.om or insertion |)f its officers whose duty it is to register him as a shareholder, '" '■egistev. If they wrongfully refuse to register him. In such an action It is no defence that the register is full, if it is so impro- beily (o) ; and if the plaintiff complains that, in consequence of [lis name not being registered, his shares have been forfeited Ifithout notice to bun, it is no defence that the forfeiture is a aeie nullity, and tliat the plaintiff has therefore sustained no liimage (p). In like manner a person who has transferred his lluues is entitled to maintain an action for damages against a [ompany for improperly refusing to register the name of his rausferee (5). The principles on which these decisions are [ased are, it is conceived, sufficient to support an action for amages by a i)erson im^jroperly inserted in a company's [(k) Eeg. v. General Cemetery Co., 6 & B. 415 ; Copeland v. North-E, idl Co., ib. 277. (I) See the judgments in the cfises lelow, in) See Ward v. So^ith-E. Rail. 0, 2 E, & E. 812 i Hart v. Frontino iBulina Mining Co., L. R. 5 Ex, 1. Compare Hare v. Land, and 'rf'i-/l'. 7ii(i7. Cu., Johns. 722. ()i) Hartley's case, 18 Eq. 542, and 10 Ch. 157 ; Re Etna Ins. Co., Ir. Rep. 7 Eq. 264. (0) Daly V. Thompson, 10 M. & W. 309. {p) Catchpole v. Amhcrgate, dc., Rail. Co., 1 E. & B. 111. ((/) Skinner v. City of London Marine Insurance Coi-poration, 14 Q. J}. D. 882. 64 EEGISTERS OF SIIAREIIOLDERS. Right to register a person against Coi-tificatcs of title. Bk. I. Chap. 2. register ; but the writer is not aware of any case bearinn i Sect. 3. . , " c I ■ directly on this point. It has been already seen that if a person is bound by agree- nient with - a company to take shares in it, the comprtny is i entitled without more, to act on the agreement and to registtt | him as a shareholder (r). In addition to the evidence of membership obtainable fiom | registers of shareholders, many companies are required bv statute to give every share'.iolder, on demand, a sealed certi' | ficate of his ownership c' the shares, to which he is entitled The object of this is to enable a shareholder to prove tlmtlie| is such ; and particularly to enable him, upon a sale of hi; shares, to prove his title to them to the satisfaction of a pin- chaser, and to show how much has been paid up in respect i them (s). The company cannot dispute the truth of the ceili| ficate as against a person who has bought on the faith of it ( But the certificate applies only to the legal, not to the eqiiitl able title of the person named in it (ii). No person is entitleilj to demand a certificate of title to shares in a company uiitillii has done everything necessary to constitute himself a sliare-j holder in the full sense of the word (x). A person may be proved to be a member of a company kl his own admissions. Thus it has several times been lielil that a person who has admitted himself to be a shareholderl in a company constituted by deed, may be rendered liable asl a shareholder without any evidence being given as to tliJil deed Q/). Admissions. (r) Ant-;, p. 46. (s) See upon this subject, //are v. JVaring, 3 M. & W. 362 ; Curling v. Flight, 6 Ha. 41, and 2 Ph. 613 ; ,S7iaw v. Fisher, 2 De G. & S. 11, {t) Burkinshcnv v. Nicolls, 3 App. Cas. 1004, affirming British Farmers' Pure Linseed Cake Co., 7 Ch. D. 533 ; Simm v. Anglo-American Tel. Co., 5 Q. B. D. 188 ; Barrow's case, 14 Ch. D. 432 ; Sluno v. Port Philiii Gold Mining Co., 13 Q. B. D. 103 ; Bahia and San Francisco Hail. Co., L. K. 3 Q. B. 584 ; IlaH v. Frontino and Bolima, dr., Mining Co., L El 5 E.\. 111. Comp. ante, p. fc| note (/)). (u) Shropshire Union Hail.Co.^l R., L. R. 7 H. L. 496, reveKiii;| S. C. L. R. 8 Q. B. 420. (x) Wilkinson v. Anglo-GaUfomt Gold Co., 18 Q. B. 728 ; Slemii Ang.-Cal. Gold Co., ib. 736. ; (i/) Harvey v. Kay, 9 B. & C. U\ Paiph V. Harvey, 1 Q. B. 845 >| see Trcdwcn v. Bourne, 6 JI. i '^| 461. scnii'. Vdiiiissioiis, liowivrr, ni'o not nocossiuily (•(inclusive, and '•''• little \vei"lit ought to be attached to them if it is shown that lliey were iiiiule under erroneous suppositions {■:). This seems L have been the true ground of the decision in the much lebnted case of J'iee v. Anson (n). There the defendant sup- Vice nsed herself to be a shareholder in a mine ; she had in 2)rivate fetters and in private society written and si)oken of herself as shareholder ; she had received certificates stating that her [ame was registered in the act-book of the mine, and that she |as entitled to share the profits of it ; and lastl}-, she had paid eposits on her shares. But Lord Tenterden held that she id not in point of fact any interest in the mine, and that as |io never represented to the plaintitl' that she was a share- bldcr therein, she could not be made liable to him simply pciinse of her erroneous suppositions and admissions. (r. I. Cliai.. :;. Sect. 4. 1'. Aiisnn, SECTIOX IV.— OF SCRIP. |In order to enable persons who do not desire to become Scrip. Bieholders to aeciuire the right so to become and to transfer |it right to others, recourse is had to what are called scrip i'ljkates. scrip certificate is an acknowledgment by a company or |projectors that the person named in the certificate (or more Diiionly the holder) is entitled to a certain specified number [shares in the undertaking. The certificate represents a ht to acquire, but not necessarih' an obligation to take a !re(M. The certificate must have a penny stamp {<■). I See Uuhjmtti v. PhUip, 1 Cr. :E.415. ' B. & C. 409, and Moo. & M. |!Jee, on this case, Oii-e/t v. Vim ,10C. B. 318, and qu. if it is I fur though tlie defendant had pi interest in the mine, was she not entitled as a partner to share the profits obtained by work- ing the mine I and what more was necessary to make her liable to the supplier ? {b) Eustace v. Dublin Trunk Rail, Co., 6 Eq. 182 ; Ormcrod's case, o Eq. (r) See note (c) next page. (Hi scitir. lik. I. Clmp. ■>. Sect. 4. tSci'ip coiiipaniuM, SiTipholilei's couvci'teil into aliarelioUlLi's. Transfer of scrii) Tn some companies nothing is re(|iiiie(l to convtit .scii|i.| holders into slmrehoUlers. Companies constituted upon tliil principle are called scrip companies, and in them scrip m shares 'are synonymous, thei'e being in fact no ditVeieufil between scripholders and shareholders (, 256, and 2 De G. J. & Sm. 521 ; Jackson v. Cocker, 4 Beav. 59. Clark V. Neicsam. 1 Ex. 131, sliows that to forge scrip was only a mis- demeanour under 1 Wm. 4, c. 66. Compare 24 & 25 Vict. c. 98, § 23. (f) 33 & 34 Vict. c. 97, § 3." {(l) As to the legality of scrip companies, see ivfro, ch. v. (e) See the ca.se3 in uote({l Fox V. Frith, 1 Car. & M. 50i (/) As to which, see Part 20. ((/) See, on this subject, &' case, 26 Beav. 177 ; lie AM' 474, and 4 De G. & J. 320 ;'i wood and Smith's case, 4 dti J. 544, and the cases ciiei| note (6), scitir. (J7 Ivitlmiit nutlet' of any infirmity in tlic title of the iieison fi-oiu '^k. I. cin|., 'j diom he has tivkeu them (h). So';t. 4. (/i) Seo Gooihnn v. Rohnrts, 1 App. pnny, and the mercantile usage was LV. 476 ; a case of a foreign govern- proved. Qit., how often will it have hent loan. In Rumball v. Metro- to be proved before the usage is io/i(i(« Banl; 2 Q. B. D. 194, the juilicially recognised ? trip was tliat of a tianking oom- V 2 G8 Mr.Mnr.nflinr ixin'CF.n nv kai.hk statkmf.nts. ClIAPTER lir. t)K .MKMIJMIISIIII' IXDUt'KD l!Y V.\liolu8. A jris-statement must be of t'UPts. SECTION I.— EFFECT OF FALSE STATEMEXTS APART FRO.M STATIT| 1. Itcquisites for liedrcss. Nothing is, unfortunately, more common than the (icitl ivnce of serious mis-statements in a company's iJVospecltJ These mis-statements are sometimes the result of ignoianj and carelessness, but they are sometimes also the result deliberate fraud. Whatever may be their moral aspect, tlitj effect is to induce persons to take shares on the faith (if tlia accuracy ; and the question then arises whether the shares j taken can be repudiated, or what remedy, if any, is openj those who have been induced to take shares on the the truth of the statements. It will be convenient to consider first those requisites wti nmst be proved in order to entitle the complainimt b redress at all, and then to consider what further is iiecesi^ to entitle him — 1. To relief against the company bywl rescission of contract and indemnity ; 2. to relief in the siu of damages against the individuals who have misled him. In the first place it must be observed that statements wlj are not statements of fact, but which are cxprossiowj nK*t, and nn action broujj;ht to vocovor damages from [lioM' who issued the prospectus failed. It must not, however, ho assumed that an expression of an Fiilsc ^titnmvit . Ill" illtLlltinll. I»iiiiiiii. or ot an uitention, or oi a purpose, may not be a Itiitt'inciil 111' fact within this rule. If an opinion, intention, kr imrpiise is not in truth entertained, those who say the loiitnirv mis-state a fact. Therefore, in Eihiiunton v. Filz- |J '-i i-;'"" '". ' • . . ' . . . ritziiim-icv;. tPiitnci' ('/>, N.licre a prospectus was issued inviting subserip- loiis to debentures 'or a purpose, whieh was not the true Impose for whie! "ley was wanted, a person who took |ebeutures which j,. u worthless was held entitled to main- aiii an action against those who had fraudulently misled him. Secoiullv, a mis-statement of fact must, in order to entitle 'Statement must iliei'son to any reliet ni respect ot it, m untrue when made ; Ir, if then true, uuist be untrue when it is intended to be acted Ipon niul is acted upon. It has already been seen (c) that if pi iiii[)liciitii)ii for shares is made on the faith of a statement Hiicli is true wlicii made, but which is not true when shares ro allotted t» the applicant, he may refuse to take them, fui'ther, a statement that an existing condition of things is kely to last, is not true if circumstances have occurred which [ill soon put an end to it ; and a statement that a condition things exists may be so expressed as to be intended to lead, 111 so as in fact to lead, to the inference that the condition Dt only exists now but will exist for some reasonable time to biup. A statement to this eflect is fraudulent if the person 111) makes the statement knoAvs that pennanence in the sense pplieil cannot be relied upon, or that the state of things has / p] Halhv:i v. Firnii', ',i Oil. 107, Id 3 E^. :rli). |('|) Denton v. Macncil, 2 Eq. 3o2. 13 (}. B. D. -.62. ((/) 29 Oil. D. 459. (c) Anderson's case, 17 CIi. D. 373 ante, p. 21. Comiiare Hallows v. FentU; 3 Ch. 4(17, and 3 Eq. 520. 70 lALSJ'; STATEMENTS APAKT I'HuM STATl'TE. Bli. I. Chap. 3. Sect. ]. I Concealment of material facts. Intention with wiiicli fnlse stitomcnt is nmlc. False statement mirt be mate- rial. ceased when its continuance is still believed in by a pdsntl acting on the faith of the statement (/). . But in the iibsciiffj of sucli knowlMlgo the fact that what was true has ceased to IjJ BO, cannot entitle a person who is a shareholder to relief iinkil indeed there is some contract express or imiilied guarnntoeiii:| him against the consequences of change. By the law of this country the duty of a person barffainii;;! with another to disclose all material facts known to himself iJ confined to a very limited class of contracts (//). In all conJ tracts of buying and selling the maxim is caveat emptor ; ii!i;| contracts to take shares are apparently governed rather by tliiil principle than by any other (//). At the same time, if pei'sorJ issue prospectuses or make statements, and fraudulently \ press material facts which render the statements made uiitrol an action for damages may be sustained against themi A fortiori, will such a concealment supjiort an action fei rescission of contract. But such -mi action cannot apparoiitl'| be supported bj' a person induced to take shares by the w? cealment of a material fact unless there has been some iiiitniii statement (A). Thirdly, the mis-statement of fact must have 1)een iimij with a view to induce the person complaining of if or persui] in general to act upon it. A mis-statement made by A. to 111 but not intended to influence C, nor any class of personsJ whom (-'. is one, does not entitle C. to redress, althouglil may have heard of it and acted upon it and suffered loss (/), Fourthly, a mis-statement of fact in order to entitle ij person to any relief in respect of it, must be material to i (/) See Traill v. Buring, 4 De G. ,T. & S. 318 ; and JSroirnlu- v. Can^)- hcU, 5 A pp. Ciui. 9.50, per Lor,! BlaL'kljuin. {'j) See Daries v. Loud, lonl I'rov. Marine Ins. Co., 8 Cli. D. 4()9, a case of .suret3'sliip. (/i) See the next note. In Twy- rross V. Grant, 2 C. P. D. 4G9, reasons are given !igain.«t tliis view. (?) See Pcik v. (Umicn, L. 1?. (i H. L. ;377, and 1.3 E(i. 79 ; .4(7,- viiqht v. Xnrhnhl. 17 < 'll. D. :i01. (k) See the last note and tlicjiw; nients in N'ew Sumbrero Pho.ipkt'/.i v. Erlanrja; .3 App. Cas. 1218, ai| .'i Ch. D. 73, a promoter's m Oahes v. Turquaml, L. E. 2E!| 32") ; Puhfonl v. Richards, 17 B()i 87 ; but see 5 App. Cas. !)50, ^ Lord Bhackbura. {t) See Peck v. Gurney, nhit and the note to Chandelnr v, i«f^ 1 Sui. L. C. ; compare C<'r> Wilson, 39 Ch. D. 39. I , ■^^ HK(iriSITi;S I'OIl KKDRESS. 71 boiiti'ait into wliioli the statement induced liim to enter. It I'k- 1. Chap. 3. r /» 1 • T fecct. 1 . must be !i stiitenient but for which he would not have entered — — [iito it. ]\Iis-statcmonts relating to trifling matters of detail, br statements which though not true when made were true befi)i'e their untruth became important, are not sufilcient to lustiiiu either an action for damages or for rescission of con- lnShq)y- Crosslin (n) a prospectus stated that more than Sliip r. i Llf the capital had been subscribed for. 'L'hls was not true ; Lt it was true soon afterwards, and before the plaintift' inplieil for shares. He was held not entitled to maintain 111 ajtioii for dannigos against the directors for misrepre- leiitation. Fifthlv, the person complaining of the mis-statement must F-i'se statsmcnt 1 ,• • 1 p • , \ t^ • . 1 must have boeu ifart havo acted on the laith ot it (o). 1' urther, it the state- actad up-n. Bent on which he relies is fairly capable of two meanings, one rue ami the other false, he must show which meaning he Itticht'd to it, and that he understood it in the sense in which Ambiguous y^i 7 • I • IT statements.* wasfals?. Smitlt \. Chadn'ick (i>) is the loading case on _s,||^;^,j ,. bis point. Tiie statement there was — " The present value of C'la'wick. hetuniover or output of the entire works is over 1,000,000/. eiiimium." This was true in one sense but not in anotlier ; the plaiiititf would not say in which sense he understood [—ill truth he evaded that question. The action was for amages, and it failed. If the action had been for rescission (vUtniet the result would probably have been the same, for be ijlaiutiti' would have still failed to prove that Ik; had been lisledhy the statement ((/). It is not, however, necessary for the person who seeks i""'se statement I ' ' •' ^ not the sule liliess on the ground that he has been induced to take shares iiKlucemint to ' « false statement to prove that such statement was the sole Iducoment which led him to apply for chares ; it is sufficient Ir him to prove that the mis-statement materially tended to take .sliarus. A H«iJ See Puhfonl v. Richanh, 17 «v. 87, and cases of that chiss, jtifiil iii/((( ; Ilalloies v. Feniie, 3 407, and 3 Ei^. 520 ; Smith v. A:kk, 9 App. Ciis. 187, and 20 1'. 27, as to several of the Jniii'Is relied on. (n) 10 Ell. 73. (o) See infra. Ip) 9 App. Cas. 187, and 20 Oh. D. 27. (q) Lord Bramwell thought this was proved, but that there was no fraud on the purt of the defeiidaui. r w I5k. I. Cliap. Sect. 1. Opportunity of a.-i08rtaiiiiiig the truth not material. 72 FALSK STATEMENTS APART FROM STATITTE. intliice him to do so (/•)• In Edfiiiu/tcn v. Fitzmaitikc (s) A person relied on a mis-statement in the prospectus, but lie wasl Fitziuaurice. 4;^also innuenccd bj' a mistake of his own ; he was nevertlieki] held entitled to redress. A person who makes a statement to another in order tJ induce him to act upon it' cannot complain if tlie stateimK is believed without further inquiiy. The person inakbi'l the statement may guard himself by saying that it must nil be taken as true without inquiry ; he may refer to others, or t books or documents, and leave the person with whom he i dealing to act on his own judgment (t). But unless this i done, the person to whom the statement is made is entitled t believe it and act upon it ; and if it is false he is entitled i redress, although he miglit have found out the truth witlKjsj much trouble or expense (h). Unless all the above-mentioned requisites are esta])lishoil,:j person who complains that he has been induced to take sliai- in a company by misrepresentation is without redress of t:. kind. But if he can establish them he will be entitled li redress of some sort either against the company or against tl persons who made the misrepresentations, or against bo; them and the company, as the case may be, and as will 1 now explained. If he can show that the mis-statements have been madeuiiiiii such circumstances as to be imputable in point of law to iL company (,r), and he has obtained his shares directly fVom ti compan/, he can rescind his contract and repudiate his sliiiivj and obtain back from the company whatever money he iii»| have paid to the company in respect of them (ij), and fiii'*'jt {rt) Tn res'-iml the contract. ()•) Peek V. Demj, 37 Ch. D. 541 ; IVestern Hank of Scotland v. Adtlie, L. R. 1 H. L. (Sc), pp. 158 & 102 ; Nicol's rjm, 3 Do G. & J. 387 ; Glarkc v. Dickmi, G C. B. N. S. 453 ; Cleveland Iron Co. v. tstevenson, 4 Fos. & Fin. 437. (s) 2!) Cli. D. 459, an action for d.iinages. (t) As in Jeiniingn v. IlfoiKihlnn, 17 Beav. 234 ; and 5 De O. M. & (i. 12(; ; AUiniod V. SiiKill, CI. & F. 232 ; and see llcihimr: Itiml, 20 Ch. D. 1. ((') See Peek\. Deny, 37 Cli- 541 ; Itaidinsv. lFickhiim,SDt' & J. 304, and 1 Gitf. 355. (x) See as to this, infra, booki. Nicol's case, 3 De G, & J. '^''1 Mixer's case, 4 ib. 575, noticed if (ij) Kisch V. Central llnil. '.'■' Vnic-^uela, 3 De G. J. & Sni, 1 and L. 15. 2 II. L. !)!), and «t\ (if that class lel'crri'd to below, NATURE OF RELIEF. 73 Lmpol the company to indeiunifv him against loss (.?). ^Nloro- ^^^- ^ Chap. :'.. ^ver to entitle him to this relief, it is not necessary to prove Ihat the statements were false to the knowledge of those who U( lib'i't to 1 • • 1 ■ /I \ rill • 1 T voscinJ. joints must be borne in mnid, nz. : (1.) ihe right to repudiate rill be lost if not promptly asserted after the facts'are known, or iisi(m already ohtained hy others was referred to in the com- ;iuv's articles, but was not disclosed in them. The Court II that the misrepresentations in the prospectus were such to entitle a person taking shares on the faith of it to rescind s contract, although he was not entitled to rel}' upon his own iiioianco of the memorandum and articles of association, and what was there disclosed. III Smith V. llccsc River Coiinniuii Oi), the prosiiectus de- ^'?"*''' ''• ^®°''® ■* "^ "^^ '■ '■ River Companr, tiibed some silver mines abroad which the company had bnlnicted for, and proposed to work as extremeh' valuable, |liereas iu fact they were wholly worthless, and were after- ^vds <^Kvn up by the company' for others, which were more ^oiuising. The directors who issued the prospectus did not nw that the mines referred to in the prospectus were worth- ii. tlu'v having themselves been duped ; but the (Jourt held |atii [porsou who had taken shares on the faith of the pro- cctas wiis entitled to rescind his contract, and to have the mpaiiy restrained from suing him for calls (/i). w Him y. Estates Investment CompanuU), a. prosi)ectus R''«« '"• ^'***<» Investment i isjuud by the directors of a company after its formation, Company, idle prospectus stated, falsely, that half the first issue of lii'eshad been already subscribed for, and that the company tuutractcil for the purchase of two properties, on one of [ill the vendor had already spent 70,000/. A person who Ibeiii induced to take shares in the company on the faith of prospectus, was held entitled to rescind his contract, to U. 4 11. L. (i4, 2 Cli. 004, directors that their statements •.vere '!• :2fil, false, ante, p. 7.3. V, iw Iu the iiiiinulemlily (/) L. 1{, ,•} E(|. 122, aft'. ;; Cli. lii'-«ic(l.;c on llie pnit ul' the (i8;j. 76 F.\I,SE STATEMKNTS APAKT FROM STATUTE. II Ilciitlcrson (' Laeoii, Bk. I. CImii. 3. recover from the conipniiy the monej' ho liad paid to it for tk shares, to have liis name removed from tlie register of slinrej liohlcrs, and to have the company restrained from suing liiii for calls. In Henderson v. Lneoii (/■), the prospectus stated, falscK that the directors and their friends had subscrihod a lni; portion of the capital ; and a shareholder who had applied f and obtained shares on the faith of this prospectus was WJ entitled to repudiate his shares and to have his money Livij and to have his name removed from the register of nicinkil and to be indemnitied by the directors. Moreover, in such cases as these, the plaintiff is entitled relief, altliough a petitiim to wind up the company iimvii l)resented after action brought (/). These cases may be conveniently contrasted with the follwi ing, in which the misrepresentation relied upon was held not! be sufficientl}' material, or not to have been relied uponbvii] plaintiff so as to entitle him to relief. In Puhford v. lUcharilH (in), the projectors of a IJel; railway issued a prospectus for the formation of a coiiipac I stating that they transferred to the company the coiices4 obtained from the Belgian government, and all the \)mi\ arising from it, subject to certain specified reservations favour of the promoters for reimbursement of prcliiiiiiid expenses. 'I"he plaintiff, acting on the faith of this prosi)e™ applied for and accepted shares in the company, but iiftenvarl filed a bill against the projectors for a return of all iiioii:] paid by him in respect of such shares with interest, ofl'ciij to return the shares and all dividends received on account them. The grounds on which the plaintiff sought to resrij his contract were substantially — (1) that an arrangeiiirj liad been made by the promoters with an engineer, liiil beneficial to him and detrimental to the company, and tlj this arrangement was in no way alluded to in the prospeita and, (2) that the promoters had ai)propriated to tlieni.*] Fi'aml iKil material. Private arrange inonts liy pro- iiititcrs. I'lilsford i: KifhartlH. (k) 5 Eq. 249. maun v. Fj,ropeau Central Bml (I) Smith v. Eccse lliver Co., and 7 Er[. 154; Kennedy v. Paww- Henderson v. Lncnn, uhinupnt. Mail. <'n., L. R. 2 Q. 15. ."if*0. (w) 17 Bcav. 87. See, alsio, Hey- i{i:scis,si(»N'. 77 20 000 shaivs iu tin- company, in adilitioii to the Itoucfits '''^■' ji'J'"' j''" '^' pvnresslv ivseived to tliein iu tlio prospectus. The Court, - - liowc'ver hold that there wi\s no such fnuid ns was sufficient to KiciMia.s. piiiililc the phiiiitirt' to rescind the contract into which he had nti'ioil. Mild liis bill was dismissed with costs. As rejjards bic ^hiuvs, till' Court was of opinion that the directors took till' sliMi'is hiiiiii jidc, and that the number of shares allotted iv tliciii to thuinselves and the engineer, was not a fact so Hialeriiil, that the knowledge of it was u nuitter which the iirectors were bound to conuuunicate to the public, in order lo enable them to come to a sound conclusion as to the [n'obable success of the undertaking in which they were avited to take a part. As to the concealed arrangement with llie engineer, the Court came to the conclusion that the ser- lices perfurmcd and to be performed by him, must have been lerfornied by some one ; that he was pcculi.arh' well fitted perform tliem ; that supposing the remuneration agreed [pull to have been excessive, still that would only entitle the liareholders to iiave the amount of excess paid by the direc- \)vs themselves, and that the non-disclosure to the public of lie agreement made with the engineer, was not the suppres- ion of a fact which affected the intrinsic value of the under- ling, or consequently afforded a sufficient ground for a ^si'issiiin by tlie plaintift' of his contract to take shares in the Diiipany. In Ji'iiniiKin V. l>roiiiihton{n), the plaintiff, who had taken Statements not ■ . . ' relieil on liy Hires 111 a ninnng company formed by the defendants, sought plaintiff. I rescind tlie contract on the ground that he had been induced Jennings r. °_ , JJrouglitou. to ilo, by their representations. The misrej)resentations kiii)eiil \A him was also dismissed. In liohson v. The Earl of Devon (o), the plaintilf, a stiHt| broker, was induced by the secretary of a company, first I advance him 500/. on the security of 1000 1/. shares, on ea(l| of which 1/. was certified to have been paid up ; and hccoi to purchase 1200 other shares. On the failure of the cdnipiirj the plaintiff sought to have both transactions decLucd voi and to obtain back from the company his 500/., and the inuiitl paid for the purchased shares. The plaintift' rested his eaxj against the companj' upon the following, amongst grounds, t/>. ; I'irst, that the company's prospectus show«| that no shares ought to have been issued before a certaiil amount of capital had been subscribed ; and secondly, tliiJ nothing had ever been paid in respect of the shares on whii^ the 500/. had been advanced. But it was held that i plaintiff was entitled to no relief on either of these g;rouii(i| For, first, it was by no means clear that the capital lequir by the prospectus to be subscribed, had not in fact btfj subscribed ; secondly, the plaintifl' liad not parted wit money on the faith of the prospectus, so that it was iij material to consider what was there stated ; and thiiil the shares t)n the security of whicJi he lent his money wnj as between the holder and the compan}', to bo taken i paid-up shares, and therefore it was of no consequence i the plaintiff, whether anything had actually been paid npi them or not. Although the cases under the older winding up acts, in n persons induced by fraud to take shwresin a company were tflj not to be contributories, can no longer be relied upon where ti (o) 3 Jur. N. S. 567, and 4 ib. 245. IlliSCISSION'. 79 Duiut for detenninatioii is contributory or noii-contributory, ^^- I- Clmi>. 3. I* * Sect. 1. Itliose cases throw great light on the questions discussed in this icliapter, and the following notice of them may still prove useful. Versons held entitled to repudiate their shares, having, been induced to take them by the fraud of the company. Gtnya's c(ts>:{p) is an important Irish case, decided in winding up the <:J'.nger's case. ripperary Bank. In that case the nxana^'inj,' director of the bank, acting,' ifit'aout authority, and in violation of the hank's deed of settlement, issued I imiiibL'i' of shares, entered them in the share register book in the name of anil debited him with their price. Of this proceeding A. was ignorant. In order to induce persons to take these shares, the director issued a Icurisliing report, prospectus, and balance-sheet, in which there was not a Ironl of truth ; he placed these documents in the hands of a friend, who did |(it know them to be false, and induced him to endeavour to sell the shares. I friund in ([uestion employed agents eipially innocent with him.self, to kduce people to lake shares, and such agents were furnished \\ith the false nd fraudulent documents above alluded to. Ginger was induced by one of tese agent-, and by the false documents produced by him, to purchase ares ; and A. was induced by a trick on the part of the director to sign tiiisfers to Ginger, Avho accepted the shares, and was registered as a share- InLler in respect of them. Ginger was held not to be a contributory : first, icause the shares transferred to him ought never to have been issued or snsferred to him at all (q) ; and secondly, because he was induced to pur- liiju tliem by a gross fraud, imputaljle to the company. Upon the question ; fraud it was considered, that if shareholders choose to adopt, and seek to kforce, the contract of a director, and say that he was their authonsed agent inter into it, they cannot repudiate the fraxuls of the agent which led to (ontract, and which are immediately connected with, and the foundation [the very transaction which is sought to be enforced. lilrnkvell's case (c), which arose in the course of wintling up the Royal Bi-ockwell'a ptish Bank, was substantially as follows : The bank was formed in 1849 *'''^^* Ider" & 8 Vict. c. 11.3. Annual reports were made by the directors to the ireliolders, and such re^iorts were from the very first false, to the know- \'e of most, if not of all, of the directors. In December, 1854, the company i liopeltssly insolvent, and the directors knew it. They nevertheless kpared a report, and laid it before a general meeting of shareholders, held IFelimary, 1855, and in such report represented the company to be in a luiitliing condition. In this same month the directors, by false represen- jii'Us as to tlie state of the company, induced the Board of Trade to grant h J Ir. Ch. Rep. 174. J!) But aec, as to this, Richmond's itnd Painfa-'s case, 4 K. & J. , 'vkere a person who had taken shares issued without authority and fraudulently, was held a contri- butory. ((•) 4 Drew. 205. 80 lAr.bl': STATKMKNTs Al'Alii' KJKiM S'lATt'TK. Observations uii these cases. I'.k. I. Cliiiip. 3. till' lOiiiiiiiny a «ii)i]ik'mciitiil ilmiUi, ami tcp aiitliiprisi! \\w iiicnasi' (,| j; ''"'^' caiiitul by tliu issue ui now sliari's. Tlic rciiorl mack' to the shaielioldciii; rdinmry, IS")'), was ndvevtiscd in llie nt'wspapers, and was to lie si'eiiatil. company's oflke, and tlieie Mr. Bmckwell saw it. Uj)on- the liiitli of il n'poit lie took shares in the company from the comjiany itself; he paiili liis capital and received dividends. In Sei>tember, 18')r>, the coiajJaiiVMi ordered to he wound up. The frauds committed by the dircctois, ml \[ falsity of their reports and representations, were then discovered. Itml ' admitted that Urockwell would have been a contributory had tluiv l)dtii| fraud ; but it was contended on his behalf, and held, that he had licciiiLl duced to take shares in and from the company by the fraud of the coiDpar.rl and that he was therefore not a contributory, and his name was stnitk ;| the list, with costs to be paid by the company. These cases are frecjuently re^'arded as inconsistent with, and in i oveiiuled by A'lcol's C((.s(; (.f) ; indeed the V.-C. Kinder-ley, wlio iIm^I llnichnU'it ciinc, appears himself to have r(\i;arded it as overruled (/). all that A7ror.f ('(/.sY decided was, that a company could not be aH'cdnlil the use one of its directors nii^ht nuike of a report which laul liwiil before, and adopted by a meeting' of shareholdeis(»). In so far as '/im; iiise and Jlroiimirs (•((.-■c are oi>posed to this division, they may be cwbiilrJ as overruled by it ; but the V)road princi])k's on which they prnceeiloilnbir it is conceived, still lie relied n]ion,and have been reco,i^nised and ailnliii.j in other cases. JlelFn (((AT (.'). In this case the secretary of a company had, liy tlicaii rity of its directors, issued circulars in which the allairs of the coiii](iil were falsely and fraudulently represented to be in a flourishing state. !<3{ circulars were issued for the purpose of inducing the public to tiike sli Mr. Bell took shares on the faith of the statements contained in the circuLl He obtained .such shares directly from the company, which was sliiiitj afterwards ordered to be wound up. The fraud which had been cnniiiiiiii was then discovered, and Mr. Bell repudiated his sliares. He was litlJ to be a contributory, although he had executed the company's deed. Ayrcii ciiiic{ij). In this case T/ic Dcfodt and General Life .Iwiiwl Conqwui]) was desirous, in March, 1854, of issuing new shares. Tiied pany had a manager in London and an agent in Bristol. The Bristol aa ajiplied to Mr. Ayre to take shares, and produced to him the conipany'siii of settlement, also a list of the origii.al «liareholdeis, who were desciiltil Indding 10,r).")0 .share.s, and as being persons of considerable propeily, si also a report made by the directors of the company, and I'epreseiitiii;; li affairs of the company to be in a flourishing state. This report wa* fiij The list of shareholders also contained many material false statement;, documents shown to 5lr. Ayre had been sent from London for the B\i purpose of being laid before him ; and on the faith of those docuinentiii of the statements made to him both by the comjiany's London nianngera Bell's case. Ayre's case. (.s) 3 De G. & J. 387, infm. See, also. Mixer's case, 4 ib. 575. (0 Brnrrtrx /v/.^v, 2 Dr. & Sm. 415, ivfra. (it) Infra. (i) 22 Beuv. 35. (if) 25 Beav. 513. SlMMAltV Ol' CASKS UNDKH THE OLD ACTS. SI L- its Dii.flol iw«iit. ^li'- -^yi'c was inluci'd to tiiiic 200 of the new shares, Bk, I. Clinp. 0. Lil til >i"ii till' I Kiuiiiny's deed in rusiiuct thereof, lli' afturwards, however, ' "' ' ' ■nlioii cif fraud. The judgment on this (question deserves attentive perusal, |iil U iiii luitlioiity for the proijositiou that companies cannot bo heard to Iv llifv (lid not know that their own rejiorts were untrue. l/;/c(',t'.< (•«.*■ (.'.). There the secretary of the ci^mpany sent to its brokers Blil;t'"s ca.se. o^pectu.ses of tlie company for distribution. The prospectus represented at sL'Vtral persons were directors of the company. The brokers were in- iniu'il liy till' secretary that the shares taken by the directors and others Icceili'il tiie number set apart for persons in Ltndim and the neighbour- |>inl,im(l that tiie London share list was closed ; but tlmt shares might still ( linl liy persoii.-i residing in the country, and a]>plying through country ekii?. Advertisements to this effect were also published in the news- |pii«. This information was conveyed by the lirokers to Blake, to whom jey sent a prospectus. He bought some shares in the company ou tin; Itliiif the above statements ; but his suspicions being aroused liy the low imljcrs on the scrip certificates sent to him, he made inrpiiries and dis- Vieil tliat the London share-list was still open, and that there was no piculty in obtaining shares in London, and that three out of the eleven lectors named in the prospectus had no shares in the company. Blake mediately repudiated his shares, and demanded back the money he had Kd for his shares ; and it was returned to him, and a line was drawn ■oiigli his name on the register. Two calls were afterwards made, but he i iiut required to pay either of them. On the aubsequent winding up of I coinpany, he was held not a contributorj". The decision proceeded on ground— 1, that Blake had been induced by fraud to apply for shares, I that such fraud affected the company ; and 2ndly, that he had repudiated I shares as soon as he had discovered the fraud, and such repudiation had In ac(|uiesced in by the company. 2. Persons held not entitled to repudiate their shaven. ii) Fraud not imputahle to the com^mmj. Iveii where a person has taken shares in a company on the faith of a false Pramlnlent [fraudulent repor' of the directors of the company, he ivill nevertheless rcpoita. pnalde to repudiate his shares if such report was not issued or published (v) 34 Bea^•. 329. H2 MKMUKIISIIII' IN-DrCF.M MY FAI.SK S lATEMKNTS. nk. I. Chitp. ;i, liy thu iliroctors, or by their nutliority, in onlor to imliioe ptrsons to \A-\ °'^^' '• hli:iiv» ill tlio comimny. The uimutlKiriHcd lU'Diluclioii of Huch u up- to a jRTSon in onler to induce liim to take hIhh'cs iu tlie con-puiiy, isi/il such a use of the report by the company as to render tiie. company f.Mii!ty ij a fraud upon him, even althougli the roimrl may ha\t' been produc('(l to|| by a (liri'c'tor or some ollicer of the company. Thek'adint,' aiitlioiily on tliis In-ad i.s \irnl'n vuki; which maybe iiKiirilp;| as nil appeal fniin tlic (leci>ii(in iu Jlrorhriirn iiiki'{ii), Nicol'8 ciwc. I" •V"'"''''* '■<(«!(/(), Nicol had talxcn shaifs in tlie Itoyal IJritish Hank,; March, 185."), on tlie faith of the same reports ax had induced Uroukwdl' lake lii». Urockwi'U had seen the reports at liie I'ank. Nicul was sli„r| them by a director, \v\u) made atblitioiial statements as to Die lliniiislii:.! condition of the bank. TIio Vice-Chancellor held Nicol not to ItCiK-.j tributory, lie having,' been induced, by the fraud of the company, to iii:| the shares in (juestion. The Lord Chancellor dissented from this vit;H-,ir.[ expressed a strong opinion that companies are not responsible for the fMji| of their directors ; the Lord Justice Knight Bruce was not satisl'ied tliattl| Vice-Chancellor's view of the case was correct ; and the Lunl ,Iii-i Turner, although differing in many respects from the Lord Cliancill agreed with him in thinking that Nicol, having had no communiiii! with the directors as a body, but having dealt with one of them only,«ij not in a position to say that he had been defrauded by the company, TJ whole Court, however, agreed that Nicol'a name ought to be st riirk oil lil list of contributories, he having efTected a valid transfer of his .shaivs. Holt's case. Holt's case {d). The managing director of a company induced Mil become a director, to take shares, and to sign the company's ded, if misinforming him as to the position and prospects of the Poiiipai'I and producing a flourishing but Itvlse prospectus. Hnlt was luljf contributory. IkiTctt's case. Again, it was decided by the V.-C. Kindersley in BarretVs ciist[i)s\)\ where directors made a false report to a meeting of shareholders, and '« meeting adopted the reiwrt, and it was afterwards sent to each sliarehnlJ^ no shareholder could treat that report as n fraud bj- the company on 1 self. Consequently a shareholder who, on the faith of such report, for and obtained more shares in the company, waa held to be a contribiilJ in respect of them. In the following cases, persons who had been induced to take shares ill company by the fraud of some individual connected with the company, »i| held not to be entitled to repudiate their .shares. After what lias pweij they will be found to offer little difficulty. Bernard's case. Bernard's case{f). Benninl, being desirous of purchasing shares ill («) 4 Drew. 20"), i.i! Till; or, II aci's. 88 |i|)li('cl tci ilif liiaim^'cr tor iiifniniation m* tci iti» (•iriniii>tiinrf.9, IHn. I. Chqi. D.i iiiiiiniiiy, a I WHS tiiiil, aiiMiiij,'>t iillifi' tliin^,'s, tlmt (li\i(U'nils \\i>\v lu'in^' jiaitl. lie Soul. 1. „k liliv Auiw^, wiiirli wen; m liv.t, iiltliiiiwli In; iliil 111)1 kimw it, issiuul tlie (lirect"i-<. H" rprtiveil dixidcnds Inr three years, and was Ik Id .iiiitriliiitiiiy, altlioii;.'Ii tliu cfini|iany wan insolvent wlieii he took tlie lliiins. iliknn'» (aiie{g). In tliis case (IHimii Imd lici'ii indiicfd liy a iirmnoter of Uibsoii'n ciiso. Luiiiiiaiiy til take slinres in it, and to sij,'n its deed of settlenieiit in respect siicli slian'-', iiiiiin the assurance of tlie lU'onioter that two other jiersons tcuiildii llie same. These two jtersons, however, refused to Join the com- jiiv, ami ili'ix'in then io)iudiated his shares. He was afterwards infornied llii' |irniaolt'i', with whom he had dealt, that such shines had been trans- Irivil, wliich, however, was not true. (Jilison was held to lien coiitrihutory. ■isulis who We 1 tills l there was ill truth no fraud indueiiif,' him to take shares; for re stated to be willini' to 8i"U the deed and become Irectim were at tlie time believed to be willini,' to do so. Further, there iintliiiiu' to sliow that the promoter, with whom alone (iibson dealt, kradiil iitlierwise than in his individual capacity. lt'iiollMtnu'iiciisc{h}. Dr. Woidiaston was reiiue.it"(l by one of the direc- \\'oiilla.4oirs Mil' an insurance company to become one of it medical referees, and ''"'*^'' L told that there would lie only two. l)r, Woollaston aiijilied for the IjiuiiUiiieiit, and his aiiplicatioii was accepted. The appointment appears [liave l>ioii made without (pialitication, but to have been contirmed upon ; coiiilitidU that the aiipointee should si^'u the company's deed for 200 lies anil that the appointment should date from the day on which he it. The secretary of the company assured Dr. Woollaston that only ■o rclViri's would be aiijiointed ; that every otiicer of the company had I >!i,nis in it ; and that he mu.st .ake a like number. On the faith of su ivjiVLSintatioiis Dr. \\'(iolhiston signed the deed for 200 .shales. He Ell Inrllic colli paiiy for some little time, but having afterwards discovered 1 two ntlier referees hail been ajipointed, he tendered his resignation, and wink'd back the money ho had paid for his .shares. This demand, how- wMs iiiit complied with. The statement made by the secretary as to |iniiiil)eiof shares held liy the other oflicers of the coniiiany was false ; . was Jnld that there was no such frauil as to relieve Dr. AVocdlaston I llii liability to be a cnTi1'Mbnff,vy. h jW-k ll''rih(i) In thi.-5 ease th<- .shareholders of a company had Kx i):iilo Woitli. ►Ival on i- ference shares, which they had no right to do. A «in lu; taken by a il 'tor, and he sold some of them to a ,wlio I them, and siguii the company's deed in respect of them. •as la, be a cent . ibutory, for there had been no dealing whatever i De 0. & J. 275. Kemp's laiul HmhmCti case, reported in ame place, are not distingiiish- Ifroni Gihion'n. 5 Jur. N. S. 617, affirmed on oiiitoffraud, 4DeG.& J.437. !>rMl, Dr. Woollaston was held not a cont laitory, his shares having been forfeilial. (t) 4 Drew. 629, as to shares pur- chased from shareholders, and not obtained -liivctly from the company, see the ne . page. 2 84 MEMBERSHIP INDUCED BY FALSE STATEMENTS. Bk. I. Cliap. 3. Sect. 1. Frowd's cxse. PhefTieltl's cjisc. between her and the coniijany ; she was not imlucecl to take any sharts jl any representation made to her by the company, or made by the compatJ to the public, and whicli she had a right to take advantage of as one nf n, public. • Froivd's c(tse{k) is anotlier case of the same da'ss. Froml was inducei,; take shares by the representations of one of tlie company's clerks, anditil held a contributor}'. Site field's cast; (') may be referred to a* an authority, to tlie efl'ect tlia:J pi-'rson who takus shams in a company, and signs its deed, is a contriljutoj although the effect of that deed may have been misrepresented to liim ';| the oflicers of the company. Case of person buyiiig shares from a share- holder. b) Fraud by a person not a imriy to the contract. Inasmuch as a contract between two persons cannot be restimlid either on the ground thut lie was induced to enter into it by the fiaiiJil representations of a stranger, it follows that if a shareholder in a coiii]ii; sell his shares to a person who accepts them, and is accepted liy the i pany as a shareholder in respect of them, the purchaser will 'lu uiialleJ repudiate his shares, although he may have been induced to buy them i false and fraudulent reports issued by the directors of the company \ The fraud of the company is not imputable severally to each of tlie pir>;j composing it ; and the purchaier cannot, thereforf, repudiate his Amt-i the ground that he was induced to take them by the fraud uf the si!!^ This explains several cases in which purchasers of shares in couipanicifi ing large dividends when they weie in fact insolvent, ?iave, iicveitfe!^ been held to be contributories(»i). Case of person not induced to take shares by the fraud in question. Bigge's case. r) Fraud of the company )iot the cautic of the contract. Although fraudulent rujjtjrts may have been issued a>.' . oublislied Ivl directors of a company, no person can rely upon nivjm as a grounil repudiating shares taken by him in it, unless he was induced to tatt; shares by such reports. Biyge's case (o) may be usefully refernil to mi head. There a young man of the name of Biyge, having money and iiitil to do, was induced by his uncle and friends to become a director of aa (k) 9 W. R. 328. (/) Johns. 451, and '>nfra. See, too, Blackburn's case, 8 De G. M. & G. 177 ; Conybearey. Neio Brunswick, d-c, Co., 7 H. L. C. 711. (??i) Dvranty's case, 26 Beav. 182 ; E.t parte IVorth, 4 Drew. 529 ; Sanderson's a'se, 3 De G. & S. 66 ; i,'/ parte Oakes and Peck, 3 Ei^. 576 ; and see the next note. (n) Biygr's case, 5 Jur, X. S, 7 ; Burncs v. Pennell, 2 11. L C- Bernard'* case, 5 De (I. &. S. 'M partly but not wholly fxplialil this principle, for fifty of the m in respect of which UeniarJi contributory, were issued k| directors. (o) 5 Jur. N. S. 7. wi Lonyviorth's case, 7 W. 1!. ■)*'<'•' the shares were taki'ii hifwt| fraud was coinmittoil. ''"■ 0' ^'''^"•es as a sha «'^'Jo'li it was (,,n the eve SUMMARY OF CASES UNDER THE OLD ACTS. 85 niiiv. He WAS told that to do so ho must take a certain nuiuhei' of ebares Bk. I. Chap. 3. ill it His uncle was himself a directoi", and transferred to him the ncces- >-e3t. 1. •— arv '.■.;mber of sliaros. The company was paying dividends ; it had issued Hswiiiih contained untrue representa'ions of the state of its affairs ; Lj \i ^viiH, ill la.,% insolvent. Hut the sharer were not taken on the faith of tlaso reports, nor u]ion the faith of any representations attributable to the fcompiiny, and Bi^'ge was therefore held to be a contributory ( 2>). (/) Shares not reimdUikd ichen fraud was discovered. A person induced to take shares in a company by the fraud of the com- Effect, of not ro- >imy, will be unable to repudiate them if, knowing or having the means of Ji'n'|jfs„'"very'or lifcoveiiuf,' the fraud, he nevertheless continues to hold his shares. A fraud, iKidiii" ease on this head is Shcllield's case (7). Tlieie a person had been induced to take .shares in a company, on the fciinnice nf its manager and its cashier that no risk would l>e incurred if |e paiil up his shares in lull. He accordingly took shares, signed the coni- diiv's deed, and ]iaid up his shares in full. The deed, when he signed it, Imtaiued a (liUise limiting the liability of the sliareliulders to the amount ; tlifir unpaid-up capital. This clause had been fraudulently inserted in lie deed, so as ajiparently to form part of it, and was fraudulently withdrawn omtliedied Udore it v.'as registered. He, however, never rcLul the deed, the company carried on its business for several year.?, and the shareholder ([uostion, who had never had his attention called to the dillerence between ke deed as n';,'istcred and the deed as signed by him, received dividends kl attended nuclings as a .shareholder. After the lapse of more than four ear?, the company was ordered to be wound up, and it was then that the bud aliovc mentioned was discovered. The shareholder contended that he W never beconn' a shareholder in the registered company ; or that if be il, lie had been induced to become so by the fraud of the company. r>ut Iwaslield that it was not open to him to say he did not know the contents tbe rei^iatered deed ; that other people were entitled to say they bad edoii the fiith of it ; and that he cuuld not escape from being made a |iitnbiitory (/•). The sharehobler in this ease was held liable, mainly upon ^rouiul that ho might have known, and, in fact, was bound to knoiv, i contents of the registered deed. Treating him, therefore, as acquainted Itli tliibe contents, although ignorant of the fraud which had been perpe- peJ, his acts amounted to an adoption of shares in the registere:)iela, 9 E(p 26()n,, and Ashh"/^ case, ib. 2()3. (;•) Other j)ers ms who had signed the deed whilst the limited lialtility clause was part of it, were held not to be contributories ; but the cir- cumstances distinguishing their case:- from Shfjficld's do not appear. See Vox's case, and Naijlors case, men- tioned in 4 K. & .T, 314. ij; i 1; i 86 SIEMnERSHIP INDUCED UY I'ALSE STATEMENTS. LIABILITV 15k. I. Cliap. 3. Tlie only question which could then arise would be, wheMier hewaseiititlj ^°''*" ^- to be indemnified by the company against loss, he having been tulilki', SheffieM's case, manager and one of the directors, that ho would not be liable licyuiuli! extent of his paid-up capital. Such a statement as this, however, CdiiWa' affect the company ; for, so far as the statement was true, it added iiollii;.| to what might have been learnt from the deed itself ; and so far iw itt false, it was made by persons who certainly were not the agents of i'j 1 company to explain the legal effect of its deed of settlement. Effect of person tiiking shares on the faith tliat others are shareholders. Richmond's case. Painter's case, Parbury's case. e) Effect of iKrsons takiwj shares on faith of others bchuj shanhohhii If a shareholder has been induced to take shares in a company li}! fraud of tlie comiiany, and since he took such shares other persons ki i taken shares on the faith of his being a shareholder, there are tli>| alternatives, viz., 1, to hold that he, and consequently they, are entity : repudiate their respective shares; 2, to hold that they, and consequently I- must be treated as shareholders ; 3, to distinguish between his case aiJ theirs, and whilst holding him at liberty to repudiate, to hold tlicm IjoaJ Of these alternatives the last was adopted in liichmond's case andiViV' case(s). There persons had been induced to take shares in a cnnipanv,!: deed of settlement of which was materially altered after they had signel;! Other persons had taken shares in the :ame company, and had executed ij deed in the state in which it ultimately remained, and whilst the peKl first referred to were shareholders. The first set (jf shareholders wm: 1 not to be coutributories ; but the second set were held to be cnntriijuton-l although it was contended on their behalf, that they had only ajjreeii join a company in which the first set were shareholders in reality asweLJ in appearance. Upon this case it is to be observed that there was no evidence sliod that iH point of fact the second set of shareholders had been induced toK] shares in the belief that the first set were shareholders ; for it (lol•^ appear that the shareludders held to be coutributories, knew who, in ptj cular, had signed the company's deed before they signed it themselves. the facts had in this respect been different, Sheffield's case goes far to ii that all the persons defrauded would have been contributories (0. Such cases as those last adverted to must not be confounded witli fl bury's case{u), in which it was held that a person induced to take siiare: a company on the faith of its prospectus, which contained false and Iraiiij lent statements, was nevertheless a contributory, inasmuch as it wasravf able to suppose that there were other persons, equally innocent with \m\ and with wdiom, therefore, he was liable to contribute. Now it is coiicf '| that if these other persons had, like himself, been induced to take slia»i liie faith of the company's prospectu.s, the only consequence would bet they and he might all have repudiated their shares. If in such a ci^ihle. I'lirbury's cane, therefore, cannot be considered satisfactory. IBiit this conclusion does not render it more easy to deal with such cases as I'li'lD^tonil's ami Painter's case ; ior, ex lujpothcsi, in them, those persons who arc e(iiially innocent are not in the same position relatively to each other ; 601110 of tlieiii liiiving become shareholders in the belief that the others had bcionie >o tiist. It is the right of the former against the latter which it is Bu dilKcult to determine, and wliich cannot yet be considered as finally settled bv decision. 3. Ucmcdij (iiiaiiist the indifuhials ivlm made, the statements. Directors and others who publish false and fniucliilent reports vith ii view to induce people to take shares incur serious uriminnl as well as civil respousibilitj'. They are liable to be Criminal . . ■IP . 1 / s responsibility. buuctea ana convicted for conspiracy at common law {y) ; and they are also liable to punishment under 2i & 25 Vict. 96, § 84, which will be found in the chapter relating to jfraudiileut accounts (s). In the notorious case of the Royal British Bank, the diiectors were indicted and convicted of the common law bffenoe of a conspiracy to induce persons to become share- lioklers in and customers of the bank by issuing false and pudulent reports respecting its condition and solvency (a) ; ^iiil ill the eipially notorious case of the Eupion Fuel and Gas Jouiiiaiiy, the directors were indicted and convicted of a cou- Jpinicy to defraud by fraudulently obtaining a settling day from llic Stoclc Exchange Committee, with intent to induce persons deal ill shares of the company in the belief that it was duly [uniicd and constituted (/>). '■) Sa- 4 Drew 21 1, in IJivckwcU'i in Pninics v. Pciinrll, 2 11. L. ('. 497, . and 3 ].),■ ( !. & ,1. 425, in Xicol's p. 525. {h) 11 V. Asijinall, 1 Q. B. 1). 730, (;i) See btluw. and 2 Q. B. 1). 48. See, also, 7i'. \-. (•) hfm, book iii., c. 3, § 4. Timothy, I Fos. & Fin. 3!), and P. v. 'i) It. V, E.ithiik, 1 Fos. & Fin. (Iitrneii, Finlaison's Report, and for |13. !"'ee, also, j)(c Lord Campbell obtaining luonoy under false pre. 88 MEMUKRSIIIP INDUCED BY FALSE STATEMENTH. LIABILIXy OF Bk. I. Chap. 3. Sect. 1. ivil liability. f Directors and others who cu'culate fraudulent prospectusts and reports, with a view to induce people to take shares are I answerable in damages to those who take shares on the faitlioJ such reports (c) ; and an action for misrepresentation is siiH taiiiable, although the prospectus or report relied onwasiii.;| the sole inducement to the idaintiff to take shares ((/) ; aoii although there may have been no immediate communicafe between the plaintift' and the defendant (e), and although tk defendant may have been only a servant of the conipamlf Such an action, moreover, is sustainable in Scotland ani perhaps in England against executors for the fraud of tlici; testator (<•/). But a director is not liable for the frauds of lii; co-directors or of any other agent of the company, r.i]., fur i\ fraudulent prospectus issued by them, unless he has liini>e:| authorised what has been done (//). Actions of this class are often brought on insuffickl materials by shareholders Avhose expectations have been (li«l appointed, and who seek without justice to throw the losl they have sustained on persons who are as innocent of fraud jil themselves. But the law of this country is unquestionably veirj lenient to persons who act honestly, but who nevertheless} their names to statements on the faith of what they are tolilll others and the truth of which they too readily assume. Actkiiil for negligent as distinguished from fraudulent misrepresintil tions are not encouraged ; and the fiction of an implied wamii'vj which has been had recourse to in order to make agents liali for honest mistakes as to their own authority (i), has not be J tences, 7*. v. JFafson, 4 Jiir. N. S. 14 ; 24 & 25 Vict. c. 96. (c) Eikjimjton v. Fitzmaurice, 29 Ch. D. 459 ; Feelc v. Deny, 37 Cli. D. 541 ; Gerhard v. Bcdcs, 2 E. & B. 476 ; Burnes v. Pennell, 2 H. L. C. 497. See, also, Denton v. Great Northern Eail. Co., 5 E. & B. 860 ; Williams v. Swansea Harbour I'rns- tces, 14 C. B. N. S. 845 ; Jury v. Stobr, 9 L. R., Ir. 385. ((/) See a)ite, p. 71. (c) Clarke \. Dickson, ii C. B. X. S. 453 ; Bedford v. Baijshav, 4 II. & N. 538; llah'Y. Cl(hi,id,4 Fos. ^: Fin. 117. Compare Peek v. Giinwi,] 1\. 6 II. L. 377, anil 13 E,\. ' noticed infra. (/) CuUen v. Thowpsoi,, 1 Mf 424. (ij) Davidson v. Tulhid; 3 31*1 783; Peekv. Gurncy, L. R. fill. J 377, and 13 E(i. 79 ; Neio SorM Phosphate Co. v. Erlamjcr, 5 Cli.l 7.3, and 3 App. Ca. 1218. (/t) IVeir v. Bell, 3 Kx. P. noticed infra. ((') Firhank's r.iveutors v. //'* phreys, 18 Q. B. I), 'ti ; 1^' /irvil>^irirk BinliliiHi Sorietil, C I,'. » MABILITY OF rEIfSONS >rAKIN'« I'ALSE STATEMENTS. 89 Ipnlied to otlier honest mistakes, although they may liave ^"'^- ^- *^''*P- ^^ eriously misled and injured other people. Actions against [irectoi'S ami others have constantly failed by reason of the vidence of fraud not being suftioient (/i). The case which goes furthest in imposing liability for mis- reck v. Dciry. bpreseiitrttions is Peek v. Derry (l). There the prospectus of tiiiinway company stated that the company had a right by jieii' special act to use steam instead of horses. This was not rue. The compau}' were by their act authorised to use steam if he ISoard of Trade consented, but not otherwise ; and the Board [ould not consent to the use of steam except on a very small prtion of the comj^any's line. When the prospectus was sued, the directors believed that they would have no difficulty I procuring the necessary consent ; but they had not applied II it, and they had no reasonable grounds for their belief. It as held that notwithstanding their belief they were liable in [images to a person who had taken shares on the faith of the ateiiient iu^the prospectus. I By way of contrast with this decision, and as a strong illus- Weir i-. Bell Jition of the leniency above alluded to, reference may be made \Weir\. Bell{iu). There the directors of a company were ptliorised by a general meeting to raise money by debentures. he directors, including Bell, authorised the secretary to iiploy a firm of brokers to obtain subscriptions for the deben- bs. The brokers issued a prospectus which contained nous mistatements of fact which were false to the knowledefe I tliL' hrokers, and mentioning Bell and others as directors. Be plaintiff subscribed for debentures on the faith of this jn'o- jctus, and, they proving wortiiless, sued Ikdl for damages. there was no proof that Bell know of or authorised these |toiaeiits, and the jury found that he did not. It was there- held that he was not liable. Cotton, L.J., dissented on [C!)G; IVuh X. Piopert, L. R. 8 (/) ;57 Cli. D. 541. Sec, al^o, .427; Ch(rnj v. Col. Bank of Cann v. Jl'ilson, .'3!) Cli. D. 30. Mam, L. It. ;5 P. C. 24. I; Set- Ship V. Cw,i.tkUI, 10 E([. \a>'t'\ p. 71 ; ,S'/(i(7/i v. Chadvid; ■ itApp. Ca. 187, ami 20 Clt. U. |/>f/.-;,v V, Tnrl.;;; KJ {). B. 1). (m) 3 Ex. D. 32 & 2.38 ; Garaill v. noircr, 10 Cli. D. .')()2. Compare Peck V. Gurneij, 13 Eij. 70 & L. R. (i ]r. L. 377; P'v/.v. Dn-ni, 37 Cli. D. 541. 90 IJk. 1. Chap. 3. Sect. 1. Shares not pix- cured from company. Peak V. Gurncy. Fraudulent concealment. Lapse of time. Measure of damages. MEMliEKSHIP INDUCED HY I'ALSK STATEMENTS. the ground that it was Bell's duty a: a director to know- contents of a prospectus issued by persons authorised by Ijitl to invite subscriptions for the company's debentures. In an action against directors for a fraudulent statement imi prospectus, it is always mattrial to consider from wliomtJ plaintiff acquired his shares and from whom he obtained ttfl prospectus. The object of a prospectus is to induce persoil to apply to the company for shares, and not to enable peKoJ who have shares to sell the)n to other people. Accordinglv: was decided by the House of Lords in Peck v. Gurncy (n) th| a person who had bought shares on the stock exchange on i faith of a prospectus which was materially misleading, m not maintain an action for damages against the diret'tois vii out pi'oof of some direct communication between them andhia A fraudulent concealment of a material fact will not suppoij an action for damages unless its effect is to make what is stata untrue. This doctrine was distinctly laid down by liordCii in Peek v. Gurney (o), and has been often recognised since i There is no doubt, however, that the commission of frauds the formation of companies is greatly facilitated by this liiiiili tion of the circumstances necessary to sustain such actions, In an action for damages, lapse of time short of tli^ prescribed by the Statute of Limitations affords no defence (j The measure of damages iu these cases is the difl'ereinl between the price paid by the plaintiff for his shares and t real value at the time. Their market value may, however, and practically always is dependent on the ignorance on il part of the public of the frauds complained of. In orderll ascertain the real value of the shares subsequent events ma be looked at ; and if these show that the shares were i'f>l| worthless, the whole of the money paid for them will recoverable. The circumstance that the plaintiff might 1 sold his shares at a high price before the frauds were pxpiij does not diminish the damages to which he is entitled (/) (/^) L. R. 6 H. L. 377. (o) L. R. 6 H. L. 377 ; see ante, p. 70. (jd) Arlcwnijhi v. Neivhohl, 17 C'b. D. 301. (q) Peek V. Gurney, L. li. t)| L. 377 ; overrulini; on this ] S. C. 13 E(i. 79. (r) Fcekv. Derry,-il CIi. D.i Twyrross v. Grant, 2 C. P. P. ^ compa: SECTION Li order the mor ffom frauds on the pa prospectus of a conipt Jubb,"ribe fur sliares ii jpecify the dates anc Intered into by tlie < pstecti tliereqf before I'lie statute wliioh ren Jnd lias given rise to i If opinion. In the fir lauies, but only to tl] |862. In the next pla ! iiraclioally worthless be given; the nati Jeferred to need not be lliat is most material h \ Compliance with the \ectns from being trea lie object of the stai joctrines relating to frai sought to be attain* i deemed fraudulent ui [certain contracts are |e not clearly defined, 1; leant which can be rega [come shareholders. ' Itremely ill-expressed e jl. The enactment is : pied by the company, I rilm V. Tulloch, 3 McQu f' ^'^'''' ^^rherujht v. Xewht }D.30l,/„,rFry,J. V) Bijiullioldcrs are mii \ [fnactnieiit, nornell v. Han, l^m. ■" 3i>&31 Vict. c. 131, § 3J COMPANIES ACT 1807, SKCTIOX 88. 91 SECTION II.— STATUTORY ENACTMENTri. 30 tO 31 Vid. c. 131, § 38. l)k. I. Chap. 3. Sect. 2. Ill order the more effectually to protect shareholders (s) Fraii.lulont trom frauds on the part oi the promoters oi companies, every losnectiis of a company, and every notice inviting persons to 30 fr 31 Vict. lubb^ribe tor shares in any joint stock company, is required to inpcify the dates and names of the parties to any contract liitereu into by tlie company or the directors, lu'omoters, or rusteci, thereof before the issue of such prosjiectus or notice (t). 'Ii(! statute whicli renders this necessary is very badly worded ad lias given rise to much discussion and no little difference If opinion. In the first place it does not apply to all com- miies, but only to those formed under the Companies act, |86'2. In the next place the information required to be given 1 jnactically worthless : the act only requires dates and names be given : the nature and effect of the contracts to be lefened to need not be stated ; but it is obvious that this is lliiit is most material to be known. Coaipliance with the statute does not prevent a false pro- beotus from being treated as fraudulent if in truth it is so. [lie object of the statute is to enlarge, not to restrict, the [ictrines relating to fraudulent prosjiectuses ; and this object sought to be attained by declaring that prospectuses shall I deemed fraudulent unless the dates and names of the parties I certain contracts are disclosed. The contracts referred to le not clearly defined, but it is obvious that only those can be leant which can be regarded as material to persons who may fccome slnireholders. The result of the decisions on this pemely ill-expressed enactment seems to be as follows : — jl. The enactment is not confined to contracts to be per- pied by the company, but extends to all contracts («) whether |ii(tei( V. Titlluch, 3 McQii. 790. I also, Arhi-cujht v. Newhuld, 17 .D,301,/»rFiy,J. |»; Biiiullioldcrs are not within [inactment, Cornell v. Hay, L. E. . P. ;!28. I) 31) & 31 Vict. c. 131, § 38. It is printed in the Appendix. (i() An nnderstixnding between the persons mentioned not amount- ing to a contract in not within the section, Arkwright v. Newhol(l,-l7 Ch. D. .301. 92 COMPANIES ACT, 1867, SECTION 38. Bk. I. Chnp. 3. in writing or not (r), entered into Ly the persons mentioneil Sect. 2. , , , , I and directly or indirectly alfecting the formation, manngemetj capital, or other property of the company, or the position the directors or officers of the coini>nny. with respect to til company, its promoters or vendors, and which might leasii ably influence a person in determining whether to apply fl shares or not (.r), 2. The enactment does not extend to contracts by wliidi \l\ promoters themselves have become owners of the property wliiil they afterwards sell to the company if such contracts in ij way affect the compajiy itself (y). 8. The words promoter, director, or trustee include porso:! engaged in forming the company, or engaged in indiiciiif; itl public to take shares in it when formed (.:) : and perhaps evj persons who arc not so engaged when the contract with ikj is entered into, but who afterwards become promoters, (liieclcJ or trustees {a). 4. A person who takes shares on the faith of a prospcdcJ not complying with the enactment in question, is not entitlti simply on that ground, to rescind his contract to take tlJ shares (6) ; but is only entitled to maintain an action i damages against the promoters, directors, or trustees v.\ knowingly issued the prospectus ((')• It has become customary to insert in prospectuses a ckij to the effect that applicants for shares waive all claims ag" directors for infringements of § 38, but the validity of siii| clauses is very doubtful. (v) Arkuright v. Nev:hold, 17 Ch. D. 301 ; C'apel cfc Co. v. Sim's Com- position Co., W. N. 1888, p. 97. {x) Sullivan v. Mitcalfe, 5 C. P. D. 455 ; Twycross v. Cmnt, 2 C. P. I). 469 ; Jury v. Stoker, 9 L. E., Ir. 385; Cornell v. Hay, L. 11. 8 C. P. 328. (j/) Sullivan v. Mitcalfe, 5 C. P. D. 455 at p. 467 ; Craig v. rhillip.% 3 Ch. D. 722 ; Cover's case, 1 Ch. D. 182, and 20 Eq. 114. See the ob- porvations of L. J. Jaiiie last case, 5 Ch. D. 118. (,•-') Tvycross v. Grant, 2 4(59. 8ee infra, bk. iii., e. (a) Sullivan v. Mitcnifi 455 ; Covers case, 1 Ch. D, 20 Eq. 114. Sed iiuare : i D. 118. (6) lb. (r) Ibid., and Ticy cross ubi sup. ; an tm c.r.l 2,jl.[ 5C,r.i| w il V. hm DIFFEKKNT CLASSES OF COMPANIES. 08 coinx):inie!i. CHAPTER IV. OF DIFFERENT CLASSED? OF COMPAXIES. Having iniule the foregoing observations on companies in Bk. I. C liap. knernl, it is proposed to advert to the formation of different Formation of jinds of companies, and to the evidence by which a person [lav be proved to be a sliareholder in them. It will be convenient to take them in the following order : — Ci-Ass I. t'ost-book mining companies. Class II. Companies incorporated or privileged b}' the prown, vi/. : — 1. Chartered companies. 2. Companies formed under the Letters patent act, 7 Wni. 4 & 1 Vict. c. 73. Class III. Companies incorporated or privileged by some Ipoiial act of Parliament, viz. : — 1. Coinpiinies not incorporated, but empowered to sue and be sued. 2. Incorporated companies. Class TV, Companies incorporated or privileged by a general Jet of ParUament, viz. :— 1. Banking companies formed under 7 Geo. 4, c. 40. 2. Registered companies. Class I. — Cost-book mining comi anies. Cost-book mining companies are sometimt s represented as Cost-book I'rt' • •Hi.- companies. linenng essentiall}' from ordinary partnerships ; but there is lo authority for this statement ; and it may be said with more ruth that cost-book mining companies are mere partnerships loveined by the general law of partnership, except so far as bat hiw is excluded by local custom or by special agreement 94 COST-UOOK MINING rOMI'ANIKS. Jlk. I. riiap. OIllMH 1. i CoHt-book. Lia))ility to creditors. Ilii '• rcferriiifi to niul embodying such rnstom (a). A fnst-liii„i| - mining company is formed by ngreemeiit. A number of nilvttj turers who have obtained i)ermission to work a lode ngiot share the enterprise in certain proportions. It is sehlom tkl they agree on a fixed capital (h). They appoint an agcnt,coffi| raonly called a purser, for the purpose of managing the iifiairij of the mine, subject to the control of the shareholders, 'ivl write in a book called the " cost-book " the agreement im which they have entered ; and in this same book are insertfil from time to time the receipts and expenditure of the niiiiil the names of the shareholders, their respective accounts wiJ the mine, and transfers of shares (r). The shares are tranrl forable and may be relinquished ; they may also be sold by tk company for non-payment of calls ; and these circuinstniiof< rather than any other, distinguish cost-book mining conipaniH from C(mimon partnerships (d). Some persons imagine that the liability of shareholders J cost-book mining companies is limited ; that both their as well as their future liability is got rid of as soon as have transferred their shares, and that they are in no caf: liable for the debts of the mine if they have paid the nl\ which may have been made upon their shares. All tliisi mere delusion ; and although it is true that a shareholder mI as between himself and co-shareholders get rid of his liabiir| by transferring or relinquishing his shares (c), there is i authority whatever for saying that the liabilities of the sliafrj holders to creditors were until lately governed by principles iil any respect different from those which apply to ordinary pan] (a) See Frank Mills Mining Co., 2.3 Ch. D. 52 ; Frosj^er United Mining Co., 7 Cli. 28G ; and as to Co8t-book jnining companies, .32 & 33 Vict. c. 19, amended by 50 & 51 Vict. c. 43 ; the Eeadwin Prize Essay on the Cost-book, by Tapping; ; Collier on Mines, ed. 2, pp. 1 1 1 , e< scq. Batten's Stannaries Act, 18G9. (h) Mr. Batten in his useful little treatise, p. 31, says that a true Cost- book company never has a fixed capital. (c) See .32 & 33 Vict. e. 19, ill and 50 & 51 Vict. c. 43, §§ 23i:.| The rules and regulations must m'I be filed with the registrar of lil Stannaries Court, 32 & 33 Vict| 19, § 9. ((/) 32 & 33 Vict. c. 19, §§ M\ (e) Fenn's case, 4 De G. M. Ul 285. ; Mayhew's case, 5 ib. 837 ; !^im min United Mines, 23 Bear, Ut Birch's case, 2 De G. & J. 10; W| house's case, ib. 69. osT-nooK ^tI^■I^■fi companiks. 05 Hsl.ii.s (./•). By the Stannaries act, 18G9 (32 .t 33 ^'ict. •"<• i-^^';-'' "• 10 s. 2')), howeyor, a iinst shareholder is not liable to con- — • libiite to the assets of the company if he has ceased to be a inroholder two years or upwards before the date of the [iinliiig-up order ([i). ^Vll()ever alle^rs that a cost-book mining company is in any Minin- tiistaniH Lspict govornod by a local usage which excludes the applica- ,I!!,i;.^.,'i.' ' lou of tlie general law of partnership, must prove the existence such usage (h) ; for the courts do not take judicial notice of llint the cost-book principle is ; and they invariably apply the Bueinl law of partnership to companies formed on that priu- [plo, luiless it is proved that the application of such law is Kcludcd as alleged (i). The nuestion whether a person is or is not a shareholder in l'">"f "f '"cn'"'''* 1 cost-book mining company must be determined in precisely IkiiU couiiany. be same way as the question whether a person is or is not a keniber of an ordinary partnership (Ic). The usual mode of roving that a person is a shareholder in a cost-book mine is showing tlmt he has signed the cost-book or an authority ►r the insertion of his name in it : and it has been said to be rt of the cost-book principle that a register of shareholders liould be kept, and that every member should sign either the S'o''i'i>3 tlio 1 .... . cost-ljnuk, pok itself or an authority for the insertion of his name in it (I). the same time, a person clearly may, as between himself j(/) Shareholders in a cost-book ne were held liable to creditors ^ouds supjilied in Tredvy.n v. mne, 6 M. & W. 4G1 ; Neidon v. i\j, 1 Fos. & Fin. 26 ; Lanijon v. fet(/i, 3 B. & Sm. 938 ; Harveij v. \\:'jli, 2 N. II. 204. See, too, Jl's V. Shmu'clc, 5 Bing. 521 ; Peel \T!mm, 15 C. B. 714; Toll v. Lee, \. 230. '(j) In re Wheal Unity Wood mintj Co., Clujnoiveth's case, 15 . D. 13, at p. 21. t/i) See ante, note (a), and the les cited below. Jji) See Haidins' case, 2 K. & J. hiiiihiiiii United Mines, 23 Beav. 370 ; Fenn's case, 4 De G. M. & G. 285 ; Hart v. Clarke, 6 ib. 232, and 6 H. L. C. 633 ; Sibley v. Minton, 27 L. J. Ch. 53, V.-C. Kin- ilersley. The purser can now sue a shareholder for calls. See 32 & 33 Vict. c. 19, § 13. See before this act, Hijhart v. Parker, 4 C. B. N. S. 209. {k) See Peel v. Tliomas, 15 C. B. 714 ; Tredweu v. Bowne, 6 M. & W. 461 ; Thomas v. Clark, 18 C. B. 662. (1) See Tippett v. Johns, Tap- ping's Essay, p. 187 ; Toll v. Lee, 4 Ex. 230. Such a register is now required, .«ee 32 & 33 Vict. c. 19, 90 COST-BOOK MINING COMrANIES. Vico t'. Anson. I'.k. I. Clinp. 4. nnd thin! nnrlk's, incur the liabilities of a Kliarcholdcr witkn CIllHS 1. . . . I signing tlio lost-book or any such authority as that rofcrrMl to (h() ; nnd it is apiJrchcudcd that a person may bo a slmrJ holder ns between hinis((lf and "the other members nltliuui;!:! he may not have signed the cost-book or any authority lor m insertion of his name in it. Indeed there is reason for j/iir; further, nnd for denying that any such signature is esseiitijl for an attempt to prove it to bo so is reported to have fiiilri tlie evidence adduced amounting only to this, that it \vnsite| for every member to testify his acceptance of shares by wrilitj under liis hand (//). In Vice v. Anson (o), the Court seems to have thoiiglit ilJ a person could not be a shareholder in a cost-book iniiiij company unless he acfpiired some interest in the mine, tnatiJ it as land, and that some deed conveying him an estate in li] land was recjuisite. But this opinion cannot be siipportel and it seems clear that shares in a cost-book mining comiiaiJ are transferable by entries in the cost-book ; and tiiat a \mk\ who is entered therein as a shareholder in respect of slia accepted by him is a shareholder, although no deed or mitii at all has been executed {'p). Shares in cost-book : companies are ordinarily transferred by a document in wliiiij the transferor acknowledges that he has transferred, nud i transferee acknowledges that he has accepted tlie sk'ij mentioned. This document is signed by both parties, addressed to the purser, is sent to him by the transferee,! is the authority to the purser to register the transferee as j shareholder (q). Transfer of sliureH. pASS II.-— CoMPAXIl (■Hi.) See Martijn v. Gray, 14 C. B. X. S. 824, as to holding out ; and si'e Cox's case, 4 De G. .1. & Sin. 53, where a person entitled to shares tried to screen himself from liability by holding them in the names of other people. (?i) Northey v. Johnson, 19 Ii. T. 104, Q. B. 1852. That this is usual there can be no doubt ; it is ex- pressly required by the rules of most large mines. (o) 7 B. & C. 409. (p) See Tippii V. Jolmt, Ii ping's Essay, p. 187 ; l}qimlii\ Bii.isdt, Collier on Mines, UiM I'ivyan v. Mmvatt, 8 L. T. Ex.i-j Northey v. Johnson, 19 L. T. lil Toll v. Lcc, 4 Ex. 230. Comi/ Curling w Flight, 5 Ha. 2^2; 41 ; and 2 Ph. G43. {q) Toll V. Lee, 4 Ex. 230; «* v. Bartlclt, 18 C. B. 845. See,Ji| parol transfers, Northnj v. J'i» 19 L. T. 104, Q. B. Sue, also, Si 33 Vict. c. 19, §§ 14, i:., auilJil C'ltAUTEUKD CoMl'ANlt::4. 07 Itv 33 .V 31 Vict. c. 1)7, H. 8 ; mil schoclule, tillo TruiiA/ei; a ^'k- '• '-''"'i'. *- ' J ', Claws 2. ;/, stiiiiil) ilii*y is iini"^>*''*' "1*^" *^"y J'K'l'iest or authority to -— e imrscr or other olliccr of any niiiiiiii,' company conducted tlie cost-book system, to enter or register any transfer of y share or part of a share in any mine; or any notice to ch purser or ollicer of such transfer " (/•). I'ompanies engaged in working mines within and subject to lieywtriition, e iurisdiction of the Stannaries, need not be registered under ■ Companies act of 18G2 («) ; but if their capital is fixed, 1 if there are seven or more shareliohlers, they may be so cistei'L'd, with or without limited liability. If the capital is t fixed, the company cannot apparently be registered as an istiiig coiiipuny with limited liability (t). The effect of regis- tion under tlie CompaJiies act, 1862, will bo considered rciifter {n). If not registered under that act, cost-book jiuiii!,' companies working mines witliin the Staanaries are ibji'ct to tlie provisions of 32 ct 33 Vict. c. 19, and if working letalliferous mines or tin streaming works, to the provisions 51) I'i: 51 Vict. c. 43, which will bo noticed in their proper COS. , , Uss II.— Companies charteued or privilegep by the Crown. 1. Chartered conqmnies, iThe Crown has at common law the power of incorporating Chartered I chfti'tei" any number of persons who assent to be incorpo- " led, and a chartered comi)any is therefore formed as soon as ^liaiter is granted to, and accepted by, two or more indivi- s, euabhiig them, alone or witli others, to trade as a body [l)orftte (,)■). The Crown, however, has no power to incorpo- r) Tlie cost-ljook itself requires |a;;iVLment s^tamp. Bee Viryan f^, ..c. see Tjanyon v. Smith, 3 B. & Sm. !);38 ; and Harvcij v. Clowjh, 2 N. K. 204. (.c) See, as to cliiiiters, Craut on Corporations, pp. 9, et seq. As to charters for a limited time, see 7 Will. 4 & 1 Vict. c. 73, § 29, and 47 & 48 Vict. c. 50. SB wuBsm 98 CIIAllTEIlKl) COMPANIES. Bk. I. Chill). 4. rate persons against iheir will (y) ; nor can the Crown forcei Class 2. ... new charter upon a corporation after it is once established, .|| charter which has been confirmed by act of Parliament cantj be varied by the Crown (z) ; but a charter which has not b so confirmed may, without being formally surrendered (,(), varied by a subsequent and inconsistent charter {}>), in-ovit] the now charter is accepted by the body corporate (c), i.e., 1 majority of the members composing it (d). . A charto'od company is a corporation existing for die [H'l poses for which it is created and no others ; and those peiso: only are members of it who oie declared to be so by the cliaiiJ or who have been admitted in compliance with the cliartur J the bye-laws made in pursuance of it (e). The charter oij company is a law set to it and to the individuals couiposiiis and they have no power by any agreement amongst tliomselti to annul or legally do anything at variance with their cliaitei/j This subject will be adverted to hereafter. A chartered company, being a corporation, is not a p.iit;.^ ship, although the company may have gain for its obje the members of the company may share profits. A charter is not necessarily of any legal value ; for it i have been obtained froni the Crown by misreprcscntiithBj it may have been granted by the Crown in excess of its pij rogative, and in either case the charter will be vokl, chaiter which has been obtained from the Crown by flilsei fraudulent statements may be formally annulled by Chfirtereil com- pany not a l)artneriliii). Validity of ctiarturs. (y) Grant, pp. 13 and 18 ; Dr. Ashless crt.ftf, 4 Burr. 2200, per Yates, J. ; and see liidlcr v. Chap- man, 8 M. & \r. 1. (r.) R. V. Miller, 6 T. R. 2G8 ; but see Eoijal E.cch. >!.«.■). Co. v. Vanijlmn, 1 Burr. IJ.-). («) It. V. Larinml, 1 Salk. 1(58. (/)) lb. ; and It. v. xtatjthorHe, ij P. & C. 410 ; Royal E.rch. Ass. Co. v. Vaughan, I Burr. 155. (c) Bull. N. P. 212, f. ; 7i'. v. r(rmore,-3T. R. 2-10. (-/) R. V. Hiifjhe.^, 7 B. & C. 708. In JFanl v. I'lie Sucietii of Attorneys, 1 _ Coll. 370, an in jii action i granted to restrain tlie iiii;: from accepting a new cluirta : E.c part'i The Society of Alkrieit C'li. 163, for til' groumls oil' the grant of a supiileniviital lii can lie sui'cessrully o\>y -i ((■) Dr. Asken-'s ea ■ Carrie, 1 K. & J. ()05. CII.AUTKUKI) COMPANIES. 9§ Jams ig) ; hit altliougli a cliarter wl ' J ) ^ lannulled is to be treated as valid untH a "*"* ^^^" *'^"s Hk. i. ci.n,, 4 Ithore is apparently ho rule to tl.e eiY^T .'°"*''"-^' '' ''''''^^' --^^:i-_; ilo 1.. (lisputcl except in a formal , 7 '"^''''^■'' ''" "-^^ Impose of procuring its cancel JLTcr""' f/f ''^"' ^•^^^ *^- Itliosepersons who have ae..pte(I or ,\'i * "'^ ^"'"'-^ time bated it as valid cannot, unless in o °" "" '^'"'■^'^" «'»'l p!)ect that it was oLtuiued ;rom the rr''"'" '" '"^''"^ "' llie iuisrepresentation of tlie-nselv T '''''^''^''''^y' ''i' I>y h of their predecessors (0. Indeed ""V"" ^f^'^^^'-^^^^bors, Hiose who have accepted a charter ' ^ I'"* ^^^^^' ^^"^^ "either fispute its validity; but this is very' doul.lf T^;;'"''''''''' ''''' Charters are obtained bv ,..A "^ ^^^■^• he petition and draft of li^e^: ::;;^ ^t^"^^" ? ^^-^^^ — - touucil Office, and are then referredl T, .''' '^' '' '^^^ °''''"'' he Colonial Office, Foreign Oft \r" ^''''^ «^ '^'^''^^e- kd to, if the pr posed In! r' Tn '" '''^^'^ ^^'^ '^^- K. If it is detenni^ed th t ) ''"'" """" '^^l^-'^" fs..e,s under the great seal B iT f'^'" '^ ^-^^-'^ ^^ \l^yn granted to trading companies "'^" "^" ^^y A charter may be surrendered to the (',• y - effect unless accepted lal^^'- "' ' "'"•^"'^- irartment of the central office of 1 1 T ''^ "^ '''" ^'"'^^'^ent h 0"). After the surrender ha 1 "'""' "^^""^ °''"''^^- |e corporation ceases to exist 00- ''"'""' '"'^ ""'^"^^ '• ^""U'^'^^cs famed under the T.h 7 Will 4 /, \: ^'^^'''' P^i<^nt act, "' ■'» 8«t seal, „„,, „,,, j;:;™ ;»"' ''•"•'«.«««« .,,.„,,, e,„„„,„ ""» '= -1'0-vered ;,, „„ „et 7 \vZ Tl 7; ''"' "'" ^^t^^^t' [/■''repeal j,at,„t ^ ^y ^^i^t'i' Grant, 20—22. '"^'""'^""'""'-'» Joint Stock CWpanie-s, p. 401, 0,1. 10; ,,e,,,, to c. 73, § 32. ■* '■'^ i \ let. OO Grant, 4(!. (") I^'oalm^r (5 Oe„. 4 ,, ,,, ^^ '■""' -^ ^^ •'"' ^ViH. 4, c. !»4. ' ' -' II 2 100 {•irAi:ri,;;i:i) comi'Aniks, I'.k. I.Chiip. 4. t() <,'niiit by letters piitout to aiiy cd iipuny or body of ixtsou,;, '— (ilthoiKih not inrorpordtcil by such letters patent, any pi'ivilcfres Avbicb the Crown might at eonunou huv grant to any coinpiiin or body of i)ersons by any charter of incorporation. LcUcr, patent under tliis act are obtained on application to the Qn«ii in Council, and notice of the application must be iiiseitni three tinies in the " Fjoiulon (iazette," and in one or luoiv-i the newsi)a])ers, circulating in the county in which it is pivl posed that the principal place of business of the company s be established, at intervals of not less than one week(j)). Comixiny's ileeil. Kver}' company formed under this act, is required to Itl entered into by jreeniL'ut under si'al, in which arc to k\ ix'cified the number of shares in the company, the naraeofl ....t impany, the names of its members, the date of its coiiij mencement, the nature of its business, the place or primifij l>laee where such business is to be transacted, and also names of two or nuu-e oHicers to sue or be sued on belmli'il the company (f/). AVithin three months after the grant of lil letters patent, a return is to be nnvde to the enrohneiit di ment of the central oflici> (r) of all the above particulars, aiiil'i| the date of the letters patent (.s) ; and returns are re(pure(ltoli made of every change made in the company's principal pkeil business, and of every change amongst its shareholdors I'l and of the officers by which it is to be sued [ii). Thi returns are directed to be registered and to be open ti) t!i inspection of any person upon payment of a small fee [.d certitied copy of the return is made evidence both m civil in criminal proceedings (//). Puch companies Companies formed under this act are not corporniiniis, not oorimrations. q^,q ossentially partnerships. 'J'heir ]U'ivileges dc()c'n,l -'ii letters patent obtained by them. The possession oi'ii cvmi seal is taken for granted in the act itself (;); but tluTej nothing requiring ihe seal to be afllxed to a contract, iiionij ''^'"g companies ; ( p) 7 Will, i .'t 1 A'iet. c. 73, §32. {, 1{'I] As to conipaiiios empowered 16 Q. B. 717 ; Kdsall v, Mar-fhall, 1 coluuial legislature to sue and C. B. N. S. 241. 102 COMPANMKS INCOlU'OKATEn liY SPKCIAl, ACTS. ^'•^- j^ ^^^v- i- usefully consulted upon (Questions arising upon special nets of __ ^ similar description. ij Conipiiucs in- coriiorateil liy Fpccial act of I) irlLuncut. rromoters not liartncrs. I'arliamenfiiry contract aiiil subscribers' aj-reement. Tim .si)cciul act. 2. Incorporated companies. A company incorpoi'ated by a special act of Parliameiii exists as an incorporated company by virtue of that act, anil not otherwise. It is formed by the act, and by that; aloDtJ and those only are members of the company who are made sil by the act. Persons associated together for the jnirpose of obtaining aji act of Parliament to incorporate them into a company, are no! I partners, although the company, when formed, will have g; for its object, and although the sliaveholders will divi amongst themselves whatever profits may accrue to the to pany (c). It does not fall within the scope of the present woik 1 1 detail the method of obtaininf_; acts of Parliament, or to advis to the rules -wliieh have to be observed in compliance with iLi standing orders of the two houses (/). It may, however,! observed, that before an act can be obtained for the incorporil tion of a companj', a deposit must be made of a certain pr:! jiortion in some cases of the estimated expense of the unilri| taking, and in others of the capital it is proposed to raic Formerly a contract had to be entered into by the subsciibir\| whereby each covenanted to pay a sum set opposite his : This contract was commonl}' called the " parliamentaiv til tract," by way of distinction from the "subscribers' ap'tj ment," i.e., the agreement entered into by the allottets shares for the formation of the company'. The act which each company may succeed in obtainiii"! itself is called its " special act," and governs the conipaiivi to all matters specially provided for in it. But as to otl (') See i.'/;v(, Look ii., e. 1, aiitl way.'^, c. i. etl. 6 ; ami as to tin I'avtii. PI'. 23, i:t Hill. plication of the deposit in pavicil (/) The staiuling oi'ilers arc piiL- of dehts, 7jV(((//'o?-(? Trammiijs ('■- lislied aiumally, and leliaiife is not Ch. ]). 18; Loiccstoft, Y.yti-^Jni to he placed oil any e.xcept tiie hi.st mt>is Co., 6 Cii. D. 484; aniUl I'uv the time heiii.t,'. See on thi.s unnijliiiiii. and Ltchfidd him subject },'enerally, ]I(;dj,'ea on Kail- Rail. Co., 28 Ch. D. GJ2. Blatters the compa tl8J5) i.s governed fcct ('/), wliicli is a 2 Bs applicable to ever pf Parliament since jpnivisioiis may be t panys S2)ccial act. Botii'e such of the Uie constitution of t ilio evidence of mem A compaiy is supj ) have the amount r ppital thus fixed, di\ piount, and numberc lath .share may be ( \ C). The company [alltd the " register ; entered, (1), tlie n 110 company; (2), the re re.spectivuly entity peh shares ; and (4), Jem. This book is tmpany (which is to 1 mil fiirie evidence a litreholder that he is leditdi's of the compa llitioii to the " regij: liuired to keep a " shi Itoheopeu to the ins pout times (7). On, l'".^"ieiit of a small liver to Jiim under i 1(1 this certififate is fc'iS&aViot. c. IG.amcn l'^- -" Vict. c. 118; 32 &;^ 1''^ ; 3^ & ;J!) Vict. c. m y^'^- t. 43, and 51 & 5 If*- Tlio Lands clau.se.s a f^m-s clauses consoli.hitic ' »« coauection with the CUMPANIKS CLAUSES ACT. 103 iiiiiiui's the company (if incorporated since the 8th of May, ^'k. I. Chap. 4. lyi,')) is governed by the Companies clauses consohdation .'. ,,. ,, i-nr ir..i- 1 The Companiea fict ill), wluch IS a public general act passed in May, 18-15, and clauses act. Is iipplicable to every English (h) company incorporated hy act i)f PiU'liiWient since that time, save so far as its clauses and hrovisions may be expressly varied or exempted by the com- Lnv's special act. In the present place it is proposed to Ltice sucli of the clauses of the act in question as relate to hie constitution of the companies to which it ajiplies, and to [lie tvidence of membership therein. A company is supposed to be incorporated by a special act, [have the amount of its capital fixed thereby, and to have the apitiil thus fixed, divided into shares of a certain number and mount, and numbered progressively from one upwards, so that lath share may be distinguished by its appropriate number I G). The company is then (by § 9) required to Ireep a book H lui i\h\ the " register of shareholdei's, in which book are to Rcgistiv of shai'cliolder.s. 1 entered, (1), tlie names of the persons entitled to shares in be company; (2), the number of shares to which such persons fc respectively entitled ; (3), the distinf^uishing numbers of nch shares; and (4), the amount of the subscriptions paid on Bern. This book is to bo authenticated by the seal of the [)iuiy (which is to be affixed at ordinary meetings), and is imiifiicie evidence against a person registered therein as a biueliohkn- that he is so in point of fact (see § 28) ; and the jilitiirs of tlic company have a right to inspect it (§ 36). In iditiou to the " register of shareholders," the company is Uiired to keep a " shareholders' address book " (§ 10), which to lie open to the inspection of every shareholder at all con- ^lieut tunes (/). On demand of the holder of any share, and piivment of a small fee, the company is required (§ 11) to lliver to him under its seal a certificate of proprietorship ; Id tliis certificate is (§ 12) required to be admitted in all Share certificate. Ill) 8& Yii;t. c. IG, umciulecl hy l&'27Vu:t. c. 118; 32 & 33 Vict. 14^, 3s & :10 Vict. c. (i(j ; 47 & jVid c, 43, and 51 & 52 Vict. 14'*. The Lands clauses and the lilwavs elausi's consolidation acts 110 coMiectiou with thu topics (liscu.ssud iu this treatise. (/() See WUsnn\. Caledonian Bail. Co., 5 Ex. 822. (/) See as to inspection and taking copies, infra, book iii. c.l, § 3, & c. 3, § 4, ■ Hi,ni jH»miwwwiim 104 COJrPANIES INCORPOnATRD BY SPKCIAI, ACT«. l^t. Wlio are sliurC' holdurs. Bk. I. Chap. 4. coui'ts (iH ])nin(i facie evidence of the title of the person nniy Class 3 . ! • . . - '. — in it, and of his execiitors, administrators, or assigns to share therein specified (j). Provision is then made for transfer of shares, for the registry of- transfers, for the pav.l ment of calls, for the forfeiture of shares for the noii-paynieiit| of calls, and for executing against shareholders juclgmeuti which have hcen ohtained against the company ; all of wliidj matters will he noticed hereafter. The statute contains two definitions of the term sliart-| holder : — 1. It is declared in § 3, that the word shareholder mean shareholder, proprietor, or meniher of the coinpanvl and, 2. It is declared in § 8, that every person who shall ki| subscrihed the prescribed sum (A) or upwards to the ca))itals' the company, or shall otiierwise have become entitk'd toil share in the company, «/(^/ whose name shall have been eiiterfil on the register of shareholders, shall be deemed a sliareliulile| of the company. Upon this section it has been decided that a person iiiaviJ a shareholder although he has not paid for his shares, m although payment is a condition precedent to his exercisip| his full rights (/). Effect of icy isUr. As regards the entry on the register, it is to be served : — 1. The act nowhere snys that a povson not on the registaij not a shivreholder. A i)erson made a member by tlir specii act is ck'sj-]y ti sharvholder althoagh not ixgistercd (;//) ; :ii is conceived that other persons may be shareholders allln not registered as such (/()• ( /) The certificate craly slio^s the K'gal title. Shropshire Vaiun Uatl. Co. V. li., L. 2L 7 H. L. m\. (k) Lt^ the sum prt-soiibeil in the conipanT s special acl, see § -. (I) Eiifi liloiursti rshin- Hail. Cn. V. lliirtkoluinen; L. U. 3 Ex. 15, uiul see, also, McEuen v. tTest Lund. IVharves ('n.^Q Ch. 655. (m) Pomt v. Emmens, 1 C. P. U- 201 v^- 604, wIkt' no ^-lliiiv- evrv issued, and no reu'islei mj kept. Conipare ^'j'^ui'/i,'/ v. f 'J ('. r. 1), ;i.')0, and see C'llmtH Ir. K. 11 E(i. 4-22. (ii) See tlie last nut ;iiiiU.'<« v. iJerbyslufv,, «Cv., A'lii/. Cn..il 14'J, and IVitlrerhampton ffnAr*] \. Hnwke»for(K^C.B. \ S, : ib. T:>;" ".nd 11 iK 4.".i COMPANIES CLAUSES ACT. 105 2. The register in jyr'iiiul fmir evidence that a person whoso '>''• I- <"i>ap. *• name is on it is ii slinreliolcU'r. It follow IVoni this, that the company may put anybody's hame on tlio register, and throw upon liini the burden of ilioffiui,' tliut he is not a sharehohlor ((j). But the register is BO t'viiK'iico that a person whose name is not on it is a sharc- Llilcr; nml therefore where shares were aUotted to " Ih'own- |i(';f and Taylor," who were trustees for anotlier person, and ^ere described on tlie register as " Browiirigg and others," bis entry was hehl to be no evidence against Taj-lor {p). The leading case on the reqiiisites of a register of share- Form of register. lolilcrs in coiupanies governed by the Companies clauses con- bliiliitiou iiet, is WolrerJiainpton Nctr U'dtcrworliS Componij v. ^Volvc^lulmptoll f((;(te/"(/n/ (7). It was there held that a sheet of paper on (jo,„j,any r. bii'li were written the names of some shareholders, and the ll''"'i<^sf<"'d. [till number df shares held b}' them, and which paper was Jalfd with the seal of the company, was not a rerjistcr at all. 1 tliis ease the shares were not identified by numbers, and in lis respect tlic register was substantially infonmil ; and the jpiut relied much on this circumstance. But it would, per- Ips, be !,'oing too far to hold that if a company issues un- Imbered shares, and keejis a proper register of such shares, Is register is altogether useless and inadmissible in evi- C'U). And if the shares are numbered the register is lissible, although it does not contain the numbers of the I^VfSI.O. loiigh share book has been held inadmissible in evidence Hipster under the act now in question (t). tlie legistcr is in several volumes they ore all admissible ii;\idince, although the company's seal is to be found in the 11'' 1/01', W't.fj. nl, dr., ],\iil. J\-, l'nh;,d\ H Kx. 27i) ; Ihim '"' rii ;^*7. (V-., 3 H. L. 11', 7 <•■• ..u-all Hail. Co. V. ". I' Q. It. 528. i I'irktnhmd, Luuidahire, dc, '''. V. rifiivnriini, 4 Ex. 4:2(). ■ ' B. N, IS. .%(i. 7 ib. 79.">, »^(). Couipare Portal v. Enifien.'', 1 C. P. D. 201 Sc G64. ()•) See the last ease, ami Irish Vcat Co. V. rhillipK, 1 B. & Sni, '••J8. (,s) Jiiint Gloucestershire Bail. Co, V. IJurthokniutr, L. 11. 3 Ex. 15. (t) Ijirkcnhcad, <(i'., Hail. Co. ■■ . Browiirigg, 4 Ex. 426 ; GhcHenhiV'i, dr., Hail. Co. v. Price, 9 C. 6c P. 35. 106 COMIVVNIKS INCOlU'OIiATKl) 1!Y SillClAI, ACTS. Register not conclusive. Tik. I Ciiai). 1. last of them only («) ; and the rogister sealed with the seaK: the companj' is admissihle in evidence without proof of M time or place, or authority at or by which the seal itJ affixed (x). Moreover, tlie register is, if sealed and kei)tsi stantially as required, prhnd facie evidence against anv okI whose name is on it, although he may in-ove that it has bftJ kept irregularly, and is in many respects inaccurate and iinpt-.l feet (if) ; but the sealed register is no evidence that a peRuJ whose name is on it was a shareholder at any given M anterior to the da}' on which the seal was affixed (z). 3. The register is not conclusive evidence that a per;; whose name is on it is a shareholder. It is competent for !i;| to rebut the primd facie case made against him by the legist- by showing that the company inserted his name in it witli J any authority. An express authority from him is not, lioivei; requisite ; for if he has entered into a contract with the prJ moters of the company to take shares in it, and if that contoJ is binding upon both parties, he may without more be \mm registered as a shareholder, and the contract and the regisa will together be conclusive against him. But if ho can m that no such contract was ever entered into, or that suilij contract, if ever entered into, had terminated before his ii;iii was inserted in the register, then the imma facie case liJ against him by it will be at an end. The following m illustrate these propositions : 1. As to the right of the company to register the, are entitled to shares. That a person who is bound to actj shares may be properly registered as a shareholder was deciij in The Midland Great Western liailuaij Company v. GonloH Right of com- pany to register. ((() Inylis v. The Great Nwthcrn Bail. Co., 1 Macqueen, 112. (.(•) Norlh-Wcstcr Cli. and 37 ib. 346 ; Jl'eist v, L. R., Ir. 121. (o) 8 & 9 ^'ict. c. IG, § K Sched. B. liANKINT. COMI'ANIKS FOnMKD UNDKU 7 OKO. 4, C. 4G. 109 nust bo ill ii siiiiplo form, not ilitloriiig Hub:stiiuUally from tlic "•«• ^; ciiap. 4. brm iirescribud (^'). luSS IV.— CoMrANIES INOORrOIlATED Oil miVILEGKD liY A OENElUr, ACT Ol' PARLIAMENT. 1. Bnnh'uuj companies jhnned under 7 (Jeo. 4, c. 4G. IJiinkiiif* companies fjovorned by 7 Geo. 4, c. 4G, and formed lianking com. .,, . ■ imnifM, 7 Uco. 4, lore ]\Iny, 1844, still exist, but no company can now be c. 40. Ilinicd uiulor tliat act { m 1 1 110 llANKIXtJ COMPAMI'.S FOllMKH rSltKIl 7 •iKc I. . . 40. Rettimn t^ the Ktillllt> ufbiv. Hk, I. Ch*|.. 4. 'iho a«t roquircs tlml tin* rotunis t«> tlu' staniii "ft'Ko sbll l»o iiukIc i>»it an.l l)»' vi'iiliod h\ tin- <»nth of one of tlu' rtin- tovt'il jmltlif oflirois, aiul shall l>o sent in once u ycur, lu'twefj the iHtli of Ffhnmry ninl the 2r»th of Maroh (.r). Umithj,, het'ii luhl that ii cortifuMl copy «>f the roturn is aihiiissiliK iu ovi«h'iu'o, «lthoii<;h it may have heeJi math' out liv a |i,i»,ia ealling hiin>elf ** easliier," and tliere may he n.itliiiii,' (,i>li„ir that he was a piihlic i>nicer (//). It has also heeii htlii iiniitT-s. saiy to i>rove that the return was verified hy tlii- oath, .fa puhlif olVieer, as ret|uire(l hy the aet(:); or that tlio ivluni was maile at the proper time (d). On the other liuiiii, it luis been "'.'!'' that retiu'iis proved not to have hei n hukK. ^ compL.'.nce with the act are inatlniissihle ; (.-/., wlun it ^ pr»>ved t?i . they were not made until after the 2olli of Mareli (/. A per^ Ai ifHurned as a memher will, until tlu> contViinii hlmwn, he j-iosumed to have heen a memher at the time the retmii wa> made and suhsecpu-ntly (<) ; ami if twn siicowjivf returns eontain the name of the sanu- i)er8on, the pri'sumptiMi is KtronK that he was a meniher tluri/i;,' the whole lurioii k- tween the times at whielj sueh returns were made {d). There is nothing.' in the act which makes tlio rito- conclusive, »ither one way or tin- otlier ; ami a persuii iu< retunu-d as a memher nn»y he proved, not only to have becojue a nu'mher since the nn»king of the last return, k to have been a member at the time of the making of tki return {'). The act is silent a^ t<» the mode in wliicli shiU'es imtk transferred. Effect ..f ri-titrti. SCO, t'H>, l>ol ■». where it WiiH Ik 111 that llii'Jt(tI» iliit'ctory only in this n.-\KC\. (r) St.ir,inl V. I hum. Ill M. .Ul 655; Ex iMite h-ifvtt. Mou. i'i flU ; //unyy V. iV.^^ lig.lU(A (>/) Itnuamivet v. Shi'rtri'iij'Ali {>) Sw J'rmcult V. llufftriiA t.i lv\. :.'J.s. I'.y far the iTiva |to tins clfiss. 'I'l acts, l.'^''^, IHOT J arts, like those w |ti(;i! WDrkiiiu', a ] |Kiii,iiil"ii'> 1'''^ [ciiininiuit's) is ap| ltd tlu' r>i>ard of |d(M'iiiii('iits rci|uir, niii'li (lii'iiniiMils t Ithfia ci.j \ '1{\ \i( Tiieso duties Idimiiis (f). Ilejiistratiou in \Vyb ; luid the re<.' jrt'iiuireil to ^'ive, |rri|uisitioiis hiive lEvtii therefore it' t Ipiiny us a corpurat Ictrliticatc (//) ; um ■ill fnuiil iuvalidute lc.ir|)oriit(' eharacte Ciiiicelliii<4 the rej; piiiiy ; 11. ir is il ei BiKJi rejiistration { Ihit the re^iistra piiiiies not within i (") 4(i & 47 Vict. c. Xn'|.t in t.i Iri'lund ificl. r. iVl '.() /.'. V. mUimt ' ; »t'e, al»), R. V f i'l lit Shid ''..»///). Ml !».«, B. V. .S.II,.,, 21 (j. 15. 1 (;;) Ptfl't f,iv, i U ■ TiiniH.iwI, L H. 2 64 3tjl) ; /Vi/ifCM ,/ . l<, IHHO, IHHIJ (rr), and IHHW. 'Mifst' liids, likf thcsi' wliicli they supiTscdf, mpiiro fn- tlu-ir i)iac- ti.-.il woikiii'-'. a pnlilif onittr in oarli division of tlu' rniU'tl Kinml^iii. '1'1'i^ ollicir (<-alI<-(I tlir iv^istrar of ioint-stock c..iiii'aiiits) is app.iintod l»y, ami, to a cci-tain I'Xtcnt, is sulij.-ct to the IJoanl of Tradf. His tliity is to register the various ■doi'iunonts reipiind Ity the ads to he registereil, luul to allow isui'li (loi'Uiiioiits to 1)0 inspL>cti'd l»y any om- desirous of seeiiif^ tlR'Mirio \ '2C. Vict. c. HI), $5 171). Tluso (lutit!S will, if necessary, l)e enforced liy nian- dainus ( /), licoistnition incorporates the company (!}§ IH, 1<»1, and Iiio..ii.ni-:iii..u I'.tii : ami the re^'istrar s certificate ot re. There is, moreover, no provision for caiiiflliiig the nj^istratioii of an improperly registere*! com- litiiy : uor is ii dear that there are any means of cuncidling Brail rciistnitinii (A >. l>iil the ivj,'istrar has iKt power to extend the acts to com- iVrtifiiato ..f piiiiits not within their scope ; and in order that his certificate wh'.n',",'„t'ooM- ( •; IC. \ J7 Vi.t. r. -js is r.-iHiih.'.l 2«, ^ (>. iq.t if to Irvlaiul l.y :>! & 52 {h) .Svv the hist not., ami Hloirr l^'^l' '■'^. v. h'iUt, 18 ("li. I». I7;J; .\nHAini,», 10 g. IJ. s;j!) ; Jtird's m»; 1 .Sim. N. H. 47. • v.^im.,, 2ig. H. 1). i:n. (0 rUhrow v. I'ilhrow't Atrno- ■t M'f ..I*, 2 rii. (574; n,d;H itjihrru- di., r> V. ]\. 4 tO. Tur,iu„n.{, \.. \\. 2 H. L. ;t2.') .^t (/.) I'rinctsx of A',i<.m v. /;„>, F.. U. Jf't .Wl) ; frincm if Untu v. //oo, ."i T. 11. L. 17(i, \dA, 107, 202. IWit rt«e i:;. il Itk. I. ( ha|>. 4. Cl«iu 4. mnv 1)0 foiu iiisivf i •vitli'ii ICO of the iiicDrponitidii of a f, KvilloiU-C nf incur] '"■'atiun. formed mid iv^'isterod under tlitiii, it is essential that tl pnny shall he one whirh ntiu be duh- registered ; mitl trntion nor the registrar's eertitiente is of any avail in tl of a ennipany to wlui-h the nets do not apply (/). The registrar's eertilicate, although the best, i^ not tl 'lupam- IC Clllll. »'!• ivnv It' Mvi 10 milr adnussible evidence of registration. Hegisf ration niav br Miffi. ciently proved by other evitlence ; for example, as a^'uiiisi tli. eoujpany, by the production of cerlitiiates of slums si altd with its seal(m). liut this sort of evidence cannot he n liod •iit-n wlun it is necessary to prove the incorporation of the coiiinaiiv against persons not conni'cted with it [it). Name of Mm- Xo t^o couil>anies are to be registered by the same iMiac, ir I«ny. bv names so similar t») «'ach other to 1 IC ( aKi llatoil tl deceive (§ 20) (n). Hut if a registered company is btin;.' div s«ilvt'd, and it c«>nsents to the assumiition nt Ik naino Lv ant»ther company, the latter may be registered uiidi r tl jc iiaiiit name. Tower tl change bornt *.» the former (|j 2(1) (/<>. In the eviiit of tun luiiiiniito being madverteutly or otlu'r\vi>.e ngistered by the >aiiu' iiiinjt or by two names so similar as to be calculated to (Itcvivo, the nnn>e of the eomj>any last registered may be cliangcd i); '201 And any registered company may change its naiac, with t!ie sanction of a special restdution of its members, and the iiiiprovil of the Hoard uf Trade (§ 13^. Hut the change uf naiae isuot (/) Pec S'litihuiidKrhiuil hiflriit Jliinkiiiii Co., 2 l)c («. & J. Xtl. St-e, alw>, />(in;iir*i U'enlork V. lurtr Jhr ('.)., 3>« Cli. 1 >. .■):U, whii h turiK-f tln' art, see A'lOiW v. Wist Vlntr Itttil. r,..,3 L. 1{., Ir. U4, wliere the tcititi- rjitf wn;* luUl conolu:»ive. Si-e § 1{»2. (im) .U>/»/i/ii v. I'lilii,!! //«(// Miiiiini Co., I F.is. & Fin. 3.34. S.c .(,/n- cultiinil Ciitll: hmurunre Co. v. FiC- ijrrnld. Hi C». 1*. A'.Vl, as to ai lion" I'V tlie ciiini>i»uy. Tln' I'ait ol' rt^'i^tni- tion i» tluri- htatwl to havo U-in |>rove«l, liiit li"W lilts ii'it M]i|Har. Till- certificat.', liowivrr. \m r.o; jrodiUKl. (u) Si'f A'. V. Fividiiiiil, Lie, »'7<), UH to the I'iKof ivc|iiir"l ii •Tintinal im.-C', ainl n.iiii'iin '■'• '' Lowfton, '2 g. 15 1). ±m;. (o) StH' //. V. lUffiMMT "f /'nirfi S' nciiistrait « ri}^i.>teix-.I coniiuiiv. Tli.MLiniiaii,' «li.s.«..l\es and a n-w (.ini'aii.f » fi.iniiil witli a ntw k ii.-!iti:li* I'lit witli tlie winie nnnu- ;!« '•'"* riiniiMiny. See in/ni, bk. iv., c. i)» CDiniili'tr until issued ((/^. It is further ireflister with liii j their t'linucninm s]H'('ialIy provide name I'Miiiiot rv r>n\ Mil iniiiniite [('(iiii|miiy (see th( \ Were change [or nliligatioiis (!}!; Inltc!', llio eoiisei liiiiiler tlie acts aii (Miecoiiipainca ll'aiiyiiiideraiiani. Isii a iMiiipaiiy wli llianiccaii he ^.■^tI' I lie registrar el any eniiipain' With respect to ^1' l«\ their t'i>niicr name (>) spcciiilly i>n>viil led for, a ronipaiiy once ro<^i^tcnMl uikUt a give n iliMiiM' I'lmin it miuirc to be rcfiistercd umlcr n new naujc (rK V n)av be eoiivertod into a limited I!nt iiii imlimitcil conipan l('(mi|miiy (see the Companies net, 1H7\), l^ \- 4i3 Vict. i-. 7<»). A nil re iliiiiif^e of name does not atVoct a ronii>iiny's« rifibt-^ [or nli!if,',\ti()ns (§§ 13, 20, and 104). Hut as will be seen here- Inlttr, tlio coiisequeneos of registering,' an existing c.inipany |uiiiltr tlie jicts me extremely important. (Mieeoniiiiinyi !>iire>trainpers< nsfrom registering another com- Rival comp;tni(«i. jli;inynii(lt'ranaiiie so like its own as to be ( alculated to deceive'*^; isii ii t'oiiipmiy wliicii has been already registered under such >i miiiiiM'Mii he restrained fromcarr\ing on busine.s- under it (/)• he ngistrnr may remove fnun the register the name Dtfunrt foni- ,. I'll 1 . 1 • , I>:iiiie8. M :iiiy loiiipnny whieii lias ceased to carry ou business (hK \\ ith respect to tin' registration of couipanies under the act Simik- of act i>f [)! l^^ii'i, it will 111' fiiinid that it> pro\.sions apply, first to all Coin]»aiii(S foniu d under it (ct ; secondly, to sonic c(unpanies ^xi^tiiiu' wlien the act came into operation ii) ; and. thirdly, to pmiic '•oinpanies funned subsequently to that dale, but not B'lihr the provisions of the act itself 'loni4il Amtranr^ •"I'-J""- '".)., 3:J Hcav. r.-JH ; n,' London. ('I /' V. /,'.;//.,/,, i;- (i/ ./oi'ii/ >7..'. AMunince Cu. v. Th-- l.onihm and . l'H,l. IV MW. Il'mtiniititir Itmtranii> Corporntioii, I //oirW.s V, M:„!.i;i,i, IT CIi. •> Jur. N. S. S i:j, V.-C. S. : The '■'""• l.otulou mill I'ruvinriiil l.mc .•l.«i(r- j (0 .Vcrf/iioi/ /;.tnti;if/ f.'y. o//.«/H(/oit iince Sonetij v. Th^ I.umlon niul I'm- |.V. it/miiN' 7.,, „f ,sV,„-A- /;,(«/, !)('h. riiuml Jotiit >it. § 7. Willi u K.louralili' imitatiuii, (r) See th..'firstfuiirpurtsof tlieact. ■ V, y/ii/,!/. .". Cli. l,v, ; nnihani V. (/) Sc- the nixth ainl sevfiith jmrls *"'"'», 7 ('].. I). S.18; Liur»,„iy. of the act. '■•i>>l: '■/ Lnnilon, 18 C. JJ. 84 ; (./) Sot- § 180. ' '"'"'I'"' /.'> /tAM.nnir- (\ v, (■.) See uirt ei^ht of the not. I..C. mr 114 IU\: I'.tMI'AMKS ACT, lH(l2. Uk. 1. <'h«p. 4. itegistration is comimlsory CUm4 R«;;iMt ration ■ 1. In th U" caso of insurance coinimnu'S I'tunitlt'tcly ronsterfj initlftt hen ctu.i..il- under 7 iV H \ irt. v. 110 (see 5} 209 of tho net ,.| iHt'.'i) torj. Carrying on l>u»iitetu. For gain. (iM. '2. In tho case «>f oouipanifs which «»ujiht lo Imvc rcisUivJ under the repenhd acta ol' lHr)0 — 1H5H, hut whi
  • ankin}^ coinpaiiios k>mA under 10 Viet. c. 75 (r). ;). In the ease uf hankin<^ partnerships of ninrc tliim ten pei-sons, formed on or after the 2nd of Novemhcr, iHtri, unkss formed under some other act of Parlianu-nt, or mnlir ktkK patent ($ il. •1. In the case of companies, ass(>ciations, or partiuTsliipsi', more than twenty persons ^^) for iI,Aii\ l»y the conipuiiy, Ai., orthe niriMhers thereof, unle>s tliey are formed under soiiic uiinriut of Parliament, or under letters patent, or unlos thcv uiecHB- panics en^'aj;eusincss within tie meanin<{ of the act (h). What amounts to carryinj^ on business for },'iiiii hii^ km L' i>ii hi;< (4'.i, and LunJ. t.mi I'rovinrutl I'ntr. S-'r. V. A*)i("n, 12 (*. 15. N. .^. 7o!(. '1 hu lirst of lluBf casi'S was cleiiily {!,) Stv 2it juiti*, uiid /<«i>i/.- o/ Lumim, etc., Int. Attof., C fh. 421. ^r) .Sec 20 di 21 Vict. c. 4'J, §§ 4 fit*. (il) I.,. 20 will 11 furiiiol or !'« i*ul>st'. (f) As to ollvT i-omymt-. "ft Shiiir V. Siinmniio. IJ V 11. I'.ll' ( /) The jiirii«.li< ii"ii w*-!'!!*'* foI)tv..iir.hir.by l.S\ l'jVia>.3i (./) .Si-e llinri* v. Am>rii, L. P- ' V. V 14H, and th.- next note. (/.) Smith V. AnMrmn, 15 <'li D. 247, overndin,,' Syhn v. /"i''"! " Cli. L). 170. iiiiich (iisciiRsod (/ jiiisiiniiicf I'Diupi Iwitliiii the iK't ; h I!('},'istnili(in np loii.M's, viz. : 1. Ill the case (Eovt'ii iiioiiilM>rs (!} '1. Ill tlu- case lliiiliility of their llettt IS patent, !« d ^niiisferahie stock ponited .sdcieties, iSticiety. It. Ill tlic case o ■1. Ill the ease Cdiupaiiies wlii eiH'ah'd acts of If p'i'2, hut they ma fister they are sii ^epilations remain OSi l„l. 1-',,|. sioii,, listiiiction is nmfle, Diiil'iiiiies formed ,• p"'8 and those re^. Oiiiicr class are pL onipiiiiies foriued a |1'1 i'i,Mihitions Iviu Ft. r ,li|.,s J,,-,, pin^, |i'il"iiii« s whieh lia> I 'J'l"' other clauses (') See the last note an [(J) l''l42. [2--> ; SImc v. Hf,„„„^ |[')/.'->v,a,//,o,,ci, !• ur,(iisTUATio\ or r«»MPANir.s. 11.-. linU(li(Hsc.iisso(l(/); mid it is now sottlod that mutual nuuino "''• iiJ^^^' ' j iiisiininir .DUipaiiii's (./) and njutnal loan soi-ietios (/.» aro — hvitliin the ui't ; but livt-hold land societifH are not (/). I!("'istnUii)s.silili', leases, viz. : 1. Ill till' <'aso of companit's and nssociatiojis t)f loss than Ecvi'ii ini'iiilM>rs (§ r»). i. la tho cast' of conipnnios and nssoriations having' tin* lliiiliilitv of tlicir nn'inhci^. liuiitod by act of I'arlianiciit or IliUt IS piiti'iit, •■ il n.il iiaviu},' a cajtital divided into sliaics or a tiiiiistVnililc stock (!j 17'.>, cl. 1, and $5 IHl), e.tj. mutual incor- Ddiiittil sdcii'tics, and learned societies, such as the Iloyal ISlH'iftV. ;l. In tlic case of Trade Unions (in). •1. In the ciisi' iif foreif,'n incorporated companies (n). Ciimpiinies which had been already registere*! under the C.mipatii»>K «!• eiHiili'd acts nf 1,S.)(» — H need not refjister under the act o( „„,i,,r ti.^, ,^1., ^8iV2, but they may do so ; and whether they do or do not re- "^ '''■'''' ^^• pstir they arc subject to its i)rovisions, exceitt that their own jrepihitions rcniain unchanged (couipai., S§ 17<>, 177, '20(1, [)s>ioi. Vor sonic purposes (see §§ i7(1, 177) however, a listinciion is niailc, in the ease of non-rc-rcgistratiou, bftwerii uiiil'iinics funiu'd and rej,'istered untler the acts of 18r)s iiic jijiiccd substuiitiallv t note .iinl l\u- next (m) 'M vt .3.'i Vict. e. .31, § .''>. (n) iSnlhUy v. .SV/ii//:, 3 L. K. P. [(j) N'lyr TuUtl Lou /tM.)f., 20 C. 7«4 ; Bnteman v. N«rr»Vc-, (i App. !'• 137 ; AV inrit Hunrroiy, 10 Cii. 38(5. (()) St't' Torquay Ihtth I 'o., 3-2 Ik-iiv. ft,.'"".""^* ""■ ^^"""nonif, y t). B. 5rtl. Of course without rf-ivf^iHlia- ^•■<\ .S/m.r V. /(<„„,», 1 1 (^. H. 1). ,io„ s„,.h a coni|MUiy eamiot b,- coii- "; A//MW, /'„;,^/,^,„, 141^ |. ,, ^.^.pj^.^^ f,.,„,, ^„ unlmiHe.1 into u hii.iled c<>iu]»any. / I') ''•>V,U,//,.j,M'|, J, I I S llKdIsTIlATION iH' CtiMl'ANIl.S. 11.- iinmlMliscusso.Ui); ftiul it ia ncnv sottlod that mutual inarino ^^^' !;^2t '" ! iiisunmcc cDHipiuiios (./') un). i. In till' ciisc of (•(•mpanit's and associations liaviii, <'l. 1, and 5; IHl), e.tj. mutual incor- poiiildl societies, and learned societies, such as the Itoyal lijiicifty. ;l. Ill tlif case of Trade T'ni(»iis {in). ■1. Ill tlic case of foreijjn incorporated companies («). Companies wliich had been already registered under the »'.)nn)atiiPK al- epriilt'd nets of IH.iU — H need not register under the act ol ,i,ia.r tin- iku 18IV2, but tlicy may do so ; and whether they do or do not re- "^ '"" **• ster tliey arc subject to its provisions, <'xcept that their own pilations remain unchanged (i-ompau S§ 17<), 177, '20(1, W) i«i. For some purposes (see §§ iH\ 177) liowcver, a stiiiction is iiinije, in the case of non-re-rcgistration, l»etweeii iu|iaiiics foniud and registered under the acts iif 18r>(» — .8")8 luiil those registered but mtt formed under them. The niHT duss are iilnccd substantiallv on the same footintr as mpaiiies foruicil and registered under the act of iH&l, tiie ttdr.i^ulatioiis being preserved (5;§ 17(1 and 20()^ ; whilst the Mt'i(la>s are placed on the same footing as other existing Diiiiiaiii, s wliidi liave registered uiuler the act of 1H02 (!} 177). llif other clauses which aiitlDnse, but d<) not imperatively Repsiniti..n when u{itiuiial. \(h Sr tin. la>t note ami tlw next (m) 34 vt 3.") Vict. c. .11, § :>. (f.) nnlhUij v. Miut-., :j L. I?. V. (j) I'.Khum- Tul.d /,„« Aiu,y., 20 V. 7(34 ; linteman v. i sc m CImp 4. . ' I'lMitlv nntli«)ris(> ivnv seven or more ]ters»uis, nssocintcd t, !■■'• 'r imv IC l\- lawful purpose, to form h c«)mi>iiiiy by ropistriithni with tl reptions above montioiuMl ( ^)^. Tlie eireiniistaiico tliit tli. peraous nre foreigners anil inteml to eany on Iiiisiiicss alnonii cl>>es not ureeliide re;,'isl ration (7). Oj.tion I.. rrgU- With a few exceptions, evi'i y eoiiipuny ciipalilc of luinj trr Kith liiniU^I . i • i-' li;»i.ilit>-, or re^jistereu may, at the option of its members or prdiiidtpixW •""""• re};istcro(l either witli or witliont limited linbility (§^ fi ami IHO) ; nnd, in the fust ai>y limited by giiaraiiteoiU"!'. el. 'D. '1. No company that has not a capital divided into slmres, '^r :i transferable stock, can re, el. :i, nml «} iKl). This apidies to most eo»t- book minin*^' coiiipanies. l"iirthanies into 1. < ompanies formed and rej,':sterod niidor the net uf IStJ'J. 2. C«»mi>anies rejristeied iindi r that act, but not frnieJ under it. ^/.' The joint (•II.cl..fs< 1:0.. 1. 1, n-.t inti-iKlcl. Sv/'-.-v"'' and of §§ 180 & IHI, s^cimh tn l.,- r/,„r /;,i,7. / o., .3 L 1!., Ir.lU. lliat niilw.iy coiinninifK )tnoruteil (7) I'rinftMof IUus.<\'. I'l't.^'^ liy art uf Parliaiiitut, aii.l Imvin^; a :. H. L. ITfi.atliriiiinu Urnemlilji' lapiUil ilivided into Hhaiv* > stock, may W ri'j;i-ter»-; rdiniiaiiy, uhethei into shares, each oiiitnsite his mum nmst take 'Hie at I A statement of by shares must bo stamp duty i.f'i.i. ] The meniorand imliiiiited cumpan (»■) S,i':)o»v;{i Viol ^'" ilUcslioiis, th. ivf( ;"ii'lii- thi; act of ls( tlii.se wlii.li unj.^e Uii.l i '■•"»>• See its to lllc tlwt iiit to iirojicuM iT'lliu.*!, Ahhult V. lin. ; tocompinio.s n.. Ilk. I. Cli,.|>. 4. CIltXH I. UEGlsnUTloN UK ioMl'AXII.S. 117 1. I'liiiji'iiiie'^/oi'itied aitil r<. It is not even iincssiuy that ^'ain shall l»c the uhjfft of thf cninpany {x). V comimiiy i^^ fi'inictl mider the act of 18(>'J, hy the lej^islr.i- M.'mnMnn the winding,' up (if tlu> ((iiiipiiiiy i;; '.I, and sidied. 2, forms \\. and <'.). If the rdinininy, wlutlier limited or uidimited, has a eajjital divided into ^lllu•es, each suhscrilier to the menioraiidiim nuiNt write ouposite liis name, the ninnher of shares he takes, ami he imist take one at least (!:;!; H and 11). A statement of the anioinit of nominal capital to lie raised -"^t inn-, by shiiies must i)e st'Ut to the registrar and he stani[)ed with a stiiiiii) duty i^{-li. per 100/. of capital, see 51 Vict. e. 8. !; 11. Thr iiiomoraiidam of association must, in the casf of an ArtuK-s ..f iiiiliinited eoinpany, and of a company linuted hy j,'uaiantee, •^'•'*"'^'*'""'- •) S.r;i(K\. :U Vi,t. c. l;!l, S :>;{. lor their ol.j.M-t, A', v //VuVm.ns/., i:> X" 'lUcMlious, th.rff..iv, cm iiii>o g. I!. (KH); ll,,ir v. Unimhii, K^ il>. iiii'l'V the ad of lstii>, rtiiuiliir to 271 ; .Vo-.r- v. llmrHuK, 6 C. 15. N. tli.>e\vlii,h aro>e iiiiilff 7 iV H \'i,-t. S. 2H!> ; t.i c.mjuni.'H, tlic f.iriaa- ' ■ 1 10. Set' Its to tlif iipidicalion ot' ticak i>f whioli wii.s itiuuiu-iirr.l ln-for.i tlwt act to i.rojfcted railway ci.ni- l^t Nov. ISJI, Shmr v. If>lliiii!, !."> Piiiiw, Ahh,M V. ]l,„j,Ts, 10 ('. \\, M. \ W. i;Ki. "; t'> com pi nil's ii,,t Imvin;,' ^;aill I ; Tf 118 Mil: ioMI'AMIs At I, iMIiJ. Ilk. I. »'hn|.. 4. ,uitl llinv ill tllO CUSO of 11 OonipftHV lilllit«'.. I |)aiii«Ml, when rrj^istoivd, I»y artifU's of ussocititidii, H' ll.'Ciiui. prcsrril HI' t:;l ivfjulations for tlic company (^11. '>i»«l s•« si<^in'il l»y the HubsiTiln'is |.i tlif mim,,. raiiilum of ft^soriatioii, in tin- prcHoiic*' nf, and jitN >ti'4 1 v .n. itiit'ss at li>ast (t|^ It and Kit. In the caso i>t' a c : Dill [(any liavin^j a capital divided into slian's, and not hcin^ liiiiitd |,v bliai'i'^f, tiu> artill:iri- unless the contrary is expressed in their rej,'i>tcrcil ariirU (§115 1 I an I I'll. Thes" re<4ulations closely reseiiilili tlm^o cii- tained in table I'., in the repealed act of iH'di. Tiu'v iiiivi; b >.".! framed with trari', ind they shoiihl be adopt- 1, as taiih possible, in all casi's. i'he Hoard of Trade liii> powi r to ahr th"in, but not retrospectively (!} 71). K'^iMMtixn of 'I'll*' inem<»randu'-'. of assoeiatiou, and the articles, ifaiiy.nr'. Ii.''liinr:iliilil>li 111- 1^1 ■ . r • ■ . A I • 1 .....1 a:iKl«». '" be (iLlivered to the registrar of joint-stock cninpaiiits,\\li. is rc'piiied to retain and rej^ister them (!} IT). < crtaiii It > r.rtifKvitc nf are payable upon their registration (>} 17). Alter tiuir rci- tratioii, the registrar is required to certity that the coiuimny i- incorporated, and in th- case of a limited company, that it i> liinited ; and his certiliente is conclusive evidence tliiU all !'; r,-i|uisitions of the act, in respect of registration, h ,uvc iHt.;, complied with (§ IH) {!). iiii-riiiir.iii. . Tn-r.irw ll'liit |C.i. -t'l;!, til,, o.u^ie t.f I iHiwi liir.' a iiiminiiiy ■li.iii>. ■') "■' pDWcis of (liic.iors ami mnjoritics. niu\ the li)il>ililirs .-f the Milis.ribors „t the iiuiiioniiiilum (//). Mt)n'ovt'r, artich's of assMciution, wliich niv inronsistcnl with tho CoiniMinics arts, are invalid (:). Tlic artirlt'8 of association may hi; varied by special resolu- V^tryinK urti.!.-, li.in!) 501, ami tlif coinpany cannot deprive itsell ot its power 1,1 ii!ttance declares that the subscrihcrs of tin; Wli" are imin- nil iiienmdiun of association (^S 1^ and '2M) (A), and all persons who liiivc aiii• C(j«c (il), a person who had si<,'ncd the nieiiio- niiiliim ami articles of association was held not to he a eoiitri- Imt^rv, as the articles he had signed hud heeii tampered with bii'iic tlicy were rc<,'istercd. He was held not to he hound by tlif iir'.ii'lis, ami not hciiij^ bt)Uiid by tiiem he was held not Iniiiiil l>y the iiiciiioralidiiiii. Witli ivsjuct to other persons it is to be observed that no Othn ihcuiIk-it, iM'.tiiiila!' f.inii of ni^reenieiit is nccesMary (c) ; but a (piestioii (r Siv H J I f tli.'('iiiniiMiiir«iii t. (h) Sifinatiuv liy nil a;,'eiit i« siilli- br.J. ,!ii.U^5 s^ It ,\ :!1 ..r ilie ( '..in- .ient, WhUlnj I'-irtnni I.imiUd, 'di I'tiii s ail, h(i7, .iiiil § "ntf lliu Cniii- ell. Div. 337. 1,1 ) Siir Jiniii.'iiri,!. liidl. Cii. V. Ilooie, 3 H. & N. -21'.). {•I) 2 Do (J. r. ^ .1. I.-.C. Thi.s case tiinuil on tl;e .it of l^^.'ili, hut tlii-iv c.-i iii«t a|!])<-ar Id 1k! any (litlenncc hetwciii tliat act and the int of 18ti2, so far a< thi." siilijfct is I'lllCLTIIfd. (r) Tlli.S p-ts Il'l (if .V'(/' lliniis- 1' «. liu; a riimj.im\ to hiiy it-* iiwii ici.-A- Hail. ('». v. Mtiiiiirn. :ir»; .l-'.',»r,» /en'/. Cirriiny ''... [v./;: ,1.. 11. 7 II. I,. (;:,;j : "/i,.,,/\ I <•!*', ^lli. p. 77('i. . 7'iio/r V. H'ltitimrth, 12 .\\\K }<■.!. -III:!, ilic c,i.taiicf (U'daivs that tin; subscrihi-rs of tlii; Wli«> «rc lucm- iii(iii«>v;iiiiliiiii of association (§§ IH iind 'iSM (/<), and all pursoiis wild liii\c iijiii'til 111 hfcoine nu'iiihiTs mid whitso nutiu-s mo iiitticil ill tin- n'j,'isti r nl" incinhors, shall he dccint'd nuMubers (it till' (Miiiiiaiiv (!) *i:J). It is conct'ivt'd thnt persons who Snlwiiiiier-t of si'Mi (opics I'l" tlic nicnjonindiim hcloru it is repstcrcd arc mriiil>tT.s umliT this act, as they were held to bo under the act of lS.)(i (0). It is vcrv (liiViciilt to see liow any person wlio si<,'ns tlio iiiiui-'iiiiiiluiii lit" association can be hehl not to b»' a nieinber. I'liit ill /•'./'/((/. '.s' ctigf ('/), a person who had siynid the uieuio- iiiiiliiiu ami articles of association was held not to he a contri- Imt'H , as the articles he liad signed hud been tampered willi Ihiiic tiitv were re<,Mstere(l. lie was hehl not to be bound by tlir lUlicKs, ami not bciiij^ bound by them he was held not I'niiiiil liy the memorandum. With ii sped toother persona it is to be observed that no Othei luemixTr. lu!tit!!l;i;' I'.iriii I't ii|,'reeiuent is necessary («■) J but a (luestion (' Sit >< IJ 1 1' tli.'('niii|>,iiii(<:irt, (6) Si^^nutiuv liv All iij,'eiit i» siilli- bic', mill i^ «, '.I vV i!l lif till- ( '..111- . init, U'hiiUij I'mlii'iA l.imilol, 'M )..ini sart.lMlT, .iiul ^ "nil' the Cnin- ( 'li. Div. 337. I'.i.iio a.! Ill' 1^77, ami tlu- Cuiu- il'liii.- ..!, l^-.'X I) Sir iKirliniliirly UniiiiiiM \. I.'fi! I'tijuiriilimi iif Inlniiil, ii Cli. 1*. ol't; .l<'i'/i(ri( H'lil. ('■irriiine I'n. [v. /,■:.' ,1.. K. 7 11. !,. •;:•;{ : l>.„i\, iff*', M-li. p. 77<"'. JV(i-.;rv. ll'liittrorth, \i .\|.|i. |<.i, 4ii;i, till' o.tse i.f nil urtiolf riii- hi'W.riii; a miiipiiiiy to Imy its uwii |^hal1■^ .;iiirnil«n. Hk. I. rh»|.. i. „,ny HiiM. oil {\u> net, lis oil the ( 'oinimiiirH iIiium's nubuliili,. tioii net, wIicthtT II |H-rsi)ii iiiiiv lint lit> II iiUMiilx-i- altlhiimlilii, iiiiiiic is not oil tlif i'fi;istfi'. In ('onsi*li>t°iii<^ ilii<. <|ii>ii| iv^'iinl must III' lull] to tin* rif^lit of ('oiii|iiiiiii-s u> put |i*'rM>n, on the iv^MHti'i- (7 I, to till' jirovihioiiM for its rniiiicntiMiii, anil to tilt' fxtciit to wliicli a pri'son niuy liuvc urtid und j^,,, tirati'il as a nicinlirr i/'i. 'I'lii-ri' is notliiiiL; in the stiitiitr to prrvriit tin r\i>tiii(M two or inort- rlassrs <•(' iiii-iiilu-i's. Imt as will W oi, ji liiti aftiT (in Hook III.) tin* ii;,'lits ol' nirli cla^s nuisf !.«■ risDictcl, anil this coiisiilcMMtion intiy }iivvcnt tiir i r«'atiis. A ci'ititiniti' uiuKt till' s( 111 of tin* coniimnv, stiUiiij,' tlmt am sliarrs or htork arc lirlil hy a niriiihir, is jiriimi /i/nV (viiKiin of his title* to tlu> shares nihtock therein siieriluil lH 8I11/.1. Kverv company re^isteieil nnilcr the art is huiiiul ii 1,im|i;i; its vej«istere(l oflire (§ H'l) a n<^i>lei- of its niriiilitis. iiinl :i iliiplinite of any roloniiil register whii-li it may kri |i iiiins of tlie ('om|»anies (colonial !r;,'i>»trir^> mt, ls-s;l' . The ref^ister must 1 ontaiii the nanus iiinl lulthi ^^is, ii(iii|i;i- tions, anil the nuinl>ei- of the shares, if any, hclil liy lli. nieiiihtTs, ami the amounts paiil, or n<;i'eeil to he rmisiilrivil h paiil, in re>peet of siuh slians. ami thf iliitis at uliid, lli' members wire rej4ist. ^'!^ -■'■ 'nj See, iw to tli.' u-i-ltr »iini (/) A„u,\>. ir,. (./) §§ .3.-) & . 47 €( nfif. (i) li'iinitoHe'i ciine, 12 ("li. 1). 2.}!l, when- tla-if Wt-iv hluuvhol. It-is ainl fully lniiliaru» have Ikiii ^ iwsuiaiice im-iubori» not wlLireiioMt'i-. j'laceil by sliare warMiiLs trai«ly dtliviry, 'M k 31 \k!. tiliculL- lli ni>l pvi-ii by tin- art, Imt 131, j .'il. uiilybyTableA, Noa. iuii.i 3. Si-e (./) See on tlu- ccrmti"" ' a." to tiiene ct-rtiticateii, milf, p. 04. rtf,'i»turH gi-iitniUy, anif, i>i>.Cl-w (if luiy I'l-rsiiM i: I'.diii till' ri'Uisl' Miry ililiiy tiiKi liny pi'i'suii liavi <'| liny liirillbi' iilitiiiii an unit r iiiiit lie iilitiiiiii' llic ni^e iif a if r l"iiy wlifi'i' sii( \ (litl'ii'i'li.'e i> iiiti r|iri>tiitioii till' ii'i^'isti'i' iiiii_\ jMi'.Miii \vli(» is ol |MlMiU tiiiL;iit as whilst ullu'is CO wiilc iiii iiitcrpn t JN I'Miilliii'licclili'l 1. I'll I'MM'S wl i.niv ciitt lid ii; I. To CMm's wii ll'i.M'' 111 iiiti'iiii},' |( ;i>i'il t I lie a lilt' I ill' nil ire res |lMiilti>i the sectii IfaiU ill (iivhaivii |l)iiilnr I'fj^isti'i'. It must be bor l« 'iniilui» 't^ I'c^is till.' wiiiiliiijf lip jliiive to be I'oiisi jcuiiiiei'tioii with jwill 111- ioii>i(b'ri'ii Isiniw only will be Itlir rcjistcr (if a " (}' -it^"^ 1: Viit. I ('// ^t-t; /','/ jiari, ,S7, *i'i ; il'ttril antl liar; ll"'.! : Mii^'iniif and h li';!-. ami the ''"'" r. 1. •'., Ill If',,, (oKltKiriON OK ltK|' the if>,'istcr. 'l"h»' ordrr iiiih lio olituiiM'il Iroiii liny divisitni of thi< lli^'li Court; tir in tilt' i-H>e tit' a ('(>lt>iiial ic^iNtcr from any ('('iii|)t'tcnt cuiut in tiu> , l.iiiy wilt re Hiicli r.';;istrr is ki-ptty). A ilitl'tifih'o t»f opinixli has hern rxpl'i'ssnl us to the ctirrt'tt iiitri'|)ivtiili wiilo Mil iiili'rprct.it'.on, heiiij.' contineil tti the cases specilittj 'ii it> iMiiiiiuiieiiiiciit (/•), vj/.. ;-- 1. I'll cases wli . ■ tlie name of a pers >n is withttiit siillicieiit tniM' ciitt It i| ii; or omitted from the rej^ister. J. Ill ciiM's where (U-faiilt i^ iiiatU' or unnecessary dehiy takes |il,i" 111 fiitcriii;,' on the rej^ister the fact of any perstui liavinj^ ( ;i>iil t 1 1)1' a iiit'iiii)er t)f the ctmipany. 1 iif iiiDiX' restricted iiiter|iretation, it will h«> ohserved, V' ii'ltis the section iiiai)plit'iilile except where the company liiiK in (iisfliarj:iiii,' the tliity imposed upon it ol" keepin;4 a \iy<\\\i:v rcj^i^tcr, lliiiiist lit- bonif ill mind that before a company i^ beiii^' Vniiiuliii) its register is miicli more readily rectihed than after till.' wiinliiij; up has commenced ami the ri-^hts of creditors li;i\x' t.i 1)1- .oiisitlered. 'Ihe rectification of the ref,'ister in |coiiii(Tti,iii with the settlement of the list of ct)ntribntories Vill Im' i(.iiM,l,.r,.,l hereaftir ; in the present plucu those deci- SMis Diily will be leferretl t.. which iviaie to the re«'tification t)f itlir rt'j.'isti'i' nf a 1,'oiiii,' i'(iin|)aiiy. ' )' -ii: ^"v 17 Vi, I. . . :-,). ,< 3 (.T . ,.„,, _ o ( '1,. 4;ji. (■/; iii:i: Kx ,.„ri. Shun; '2 (,i. M. i *. (r) Kx jH,rU Ward, b. U. ;} K.x. !»''•! ; Jl tif(/ ..,.,/ llarllfi a,x,; -1 |-:.|. 1m(» ; .S'/i././.m/'-* cum; -2 Cli. 1(! ; uiid i-:i; .V».«|,„„, ami Jli,>i's ,„m, :. mu bonl Cuirus' jmlKiiu'iit in //'<«./ ■j;'! !:•:!; hh.I tlie ju.ljrimnt ,,1 .o«/ //en/V*r(Mr, 2 Ch. 431 ; .V((/i'/,o"« '"I" r, I, .1.. ,1, /f •„,,,/ ,„„; if,„r.j', f,j^^ 2 Cli. :>!)«. 122 1 111. ( iiMl'.VMI ^ A( 1 , lN«)2. 15k. I. ("hap. 4. The !l.")tlj so Itc invivstiL^atrd. the ( ny will rectify tlie re<,'istfr without (lircctin^' any uctidii t'> 1. hn)U,Liht (H) ; but the Court has a discretion as tn wlictlier.t will interfere suniuuirilv under the act or dii-ect an action, niiii will he f^iuiiled by the nature of the facts in dispute antibvtli' desirability of haviuj; theiu investij^ati'il by a jiryi/i, Tli' ciri'unistanee, however, that the coiri{>any has itself rtctilicii tlu' rejiister does not prechuh' tlie Court iVoiu or.hrinu' it toK rectified ; an order of the Court being often of great import- iinee to the ajudic ant (//). l\e inenioranduin of association does not correspond (/>' ; s' whrr' a person a])plied for share; on the faith of jtarticular ]"'!■>■:.• (i>) As til wliii.li, ■'^fi' Jlrilifh Siiijiir h'tniiiiKi <'n., '.i K. & .1. 4nH. (t) Hr jmrif S>irij'nt, 17 K'l. iIT;'. ; Kx jHirt. I'f fraud ; Simpm.n'n lam, '.) K"|. !M, whi-n.' a lull wa* .lire.t.-.l to l.e filed. Tilt; tiilli- lulty lnr«- iiiaiidy nuii'd hm tlic cuimtni' tint) >>1 iloiMUiU'iitri, ami '/'i. tilt' atlvantit^e ul (liructiiii; an aiti iti ID huch a catH-. (j/) Mitrliii';: rusr, •* Ibni. iV M. (:) /....,' ,-.ix<, c, N. I!. ;'.:;: : i/w ■ <'f^f, 2 II. \ M. i;.*.: ; Marttiism. ill. ('.."i;!, where tlif iiaiiif li*! 1^' i-iiumv. d iilnady ; r.'iilii' ^'i».'' K.j. -1:.'^ ; :) ell. .V.i:;; .'viwmilc r<(^, (iCii. 'JIM, 271. (d) Stao anil I'/orthi citif,i^<' (•''2. {!)) Stiinirt's nis., 1 Ch. i'i' ir,U,r'* <„Af, 2 K.i. 741; /"'""*' V. SI,,/,, \.. It. 3 II. I-. M. .'• N/u//s .-.wt, 2 Do (i. .1. >v MM. '^* r,r,rknin.lj,'i com; 2 Hiin. -^ ^ (;J2. Sve riilllillt^' iif M^'i ami the I'uiiipaii i'ii,'i-tcr ill such (■ .'>h;in'liiii(icr know l!li^l■rpl•c^clltati name struck oil ) Aud'U'tn'i (•'(.<,•, I |H. 1.. •;! ; /'((»•/, •.,■ ,„..v p-.V;,/u ,;,.<, ^ Id |.;,| jt", j K'l. ll,s. Sic '■:,■ ynrf. I'.irl ""i •'.'■'■■'. I'.k. 1 1!., ...J, I >li.ir('.i. (/; J^^i'i- Mniiii'i ,„j,f^ '"/7it'.< m.<.; il,. 4,-,s. , ,.'■'. f^ic Hnrl< ,„.s,^ i''! See Sijmoi,'.i ,■,(.,■., [i) I'imoii'i o,(*', « !•;, ('•) Sec Hr ,„rt, l^i„, ^^(').V,a.st..ii,i,s^ y;„ 'ilWW-; ii„il_ ,iy^ J^ '*, .iiiij utii,.,- ^.,.,^.^ , 1 (ii;l;i.i I liiN ni i;!.«ii> I i:ii. Vl.i ll.nilr 111 the iirii.six'ctus U'\u<^ din rtors, and sucli jicrsoiis l'-^- !■ «'li«i'' • ' 1 'I'lUU 1 ifii'^td til l)c'i'i>iiic directors ((•) ; so wlicn' a ncrsoii Ims l»<>cii 1 liv till' t'riiud of tlic I'oininuiy to bcooinc ii meinlxM' ('/i ; I'l.lSS t. lllllU'HM S,i wlirrc tllf CO mpiii IV rct'nsi's to rt'ijistor a traiisfrrcc, to wIkum till' I'liiiipiiiiy caiiiio t ol»jcft ('•). Airniii. ^vlit'iv slian-s arc traiisfcncd to an infant tli(» infant (111 liMvc tlic l•c^i^tcr rcctiticd wliilst he is an infant i / i, or on liisciiuiiiiu lit Mi^c, |irovidin;j;li(' lias not ai'ccptod the shares (//i ; 1111(1 till' iiunpaiiy itself can (d»tuin an order r.'ctil'yin'^' the ni.'1-tcr 111 sticli cases (7/1 if it has not acifi) ted tl le infant as a s!i;iri'liiililcv kiiowint; tlu' facts (/'), Ml when; a jierson lias liv i!ii>ri'pr('M iitati'iu or fraud indnci'il the eoinpany ti» rej^'ister liiiii as a s!i:ir,li ijilrr. the register will he rectilied at tlie iiistiiiii'O (if the ciuiiiiany, if it iijijilies promptly (A), and if third Ij ii'.us have II, it dealt with the person reui^tcred and have not ;ui|iiiri il rights mi the fiith of his hein;^ a sharelitdder (/). Si wIk le shares intended to be issued as fully paid up. have Ibe '11 iiiadviTl utly issued as not paid up, the rej^ister has heeii [nctilit'il mull r this sci-tioii (;/(K rill' iiiiotioa whether a vendor or a puri'haser of shares is |t'iitillril to he re^Mstev. d ill lopeet of them can also he deter- iimii.ii iii'.iii ail application to rectify the rej,'ister (ii). Oil the ether hand, a duly re<,'istered nu'Uilier cannot liave Ai.i.li.;vti"n t--* ihh naiiii' struck oil the register (-<) ; and no person is eiitith-d '^"' ' ' 1) .1,1'/ T,«. '/('.<,.(.<.■, 17 rii. I). ;j:;{. ii,.ti,-,ii ,i„f,-, ],. r>\. Cuiuparo Sm,7/i'4',m,sv, o cli. cnl. iin.l I A.^Lir's cti,; [) Cli. C'lJ, win re an |11. !.. Ill ; I'awlr's Cfi.«\ ■» ( n. .|'.i7 \ ll's CI.*,, Id Iv|. ,-,(»;[ ; /.•,,,-., r« , .1 E'l. lis. ■ S,i' 'ir i„irl. I'.ni'i-, -1 Cli. (ih:i, '' '■ l''k.!ll.... I, s^ ."., TiaiLslVr I/'; SlV.U,(„»',< ,„.v,;i( 1,. i.vj,,. ; ''V/»r".< (',(.«.■, il,. 4,-,s. Si'L- H,ul.< ,7i.v, (; Ki|. .M2 ; I'l' Sic Sijinoii'i{ ,-(((*.•, T) Cli. 2!)^. (i) /'iii-. ( 'li. ;),-,. (') Sv, iislotlii.^, y;„/,,.( aii,l Sin ""•:*, li,ul. Co., I, i; ;{ (^ |. j^y_ "' ii'il iitli.r c;i>.'. ,,1 il,,,t .sort action Wius iliri>i.te< t/wn ini.st.iki ; il.trtlftjt (•/(.<'■, l.S K'l. 'i\'2, ami 10 <'h. l.">7 ; Ur Etna Iiik. C)., Ir. I!. 7 K<|. 2t>|. Set' iw to shan's i.sHucil at II di* KUiit, iknil. Tim-' Tufih:* I'lif'. (' >., W. N. isss, 2:J",I. (;i) /■> parte Sh.nr, 2 l^. 1'.. I >. 124 riii: ((iMPAMis ACT, ISC, Ilk. I. Jli;i|. ». t^^ 1, CI»KH 4. invf his name i)iif on tlic rfj,MNt»'r until \\r 1 ms (• 'ni|ilii,i DauMgo. (Vt* SUnnarit^. witli itll conditions pnct'dcnt, c../., jn-ovi'd liis title to liissliar.v in tilt" initniuT n'(|uin'(l l»y tlic conipiiny's rc^'ulatiniis i where 11 conipiiny is rt(|niii".i t » rc^^'isti r u tiaii^t'.r «i ^ll;l on wh'uh it has a lira, tliat lien must he lirst (li^clmiM.il, Neither can a jieisMii wli.i was entitled to he on (1), j _, have it reetitied in lii> I'avour it' he has ailowtd sdna' nn, ,. to he re^isttTed ill liis piaee, and siieli ]>ersoii li;i> traiblVr; his >>\uirv to a hinni liilr jiurehaser tM ; and as will Ir ., ler-iirt'er. under the hea< ( ontrilaitoni Ui l:iy 111 ii|ijil\; to the Court is ol'liii fatal to the apidieatioin.si, N'nr mii eoiiipany whieh lias, when piosja roiis, persistently ivtiixii ; register a ]>erson. ohtain an oiihr to register liiiii \\\ ICll 1 eoinpany is i n diiruulties i/l. <.iniii:ii; s lv'i^l.: il a jxisiiji has sntVeie I damage hy reason ot a imi>roperly exeludinu him iVoni or retaining hmi nu it the company will he ord< red to pay it \iiK ]»ut the niiii)';i; will not he liahh' to pay any spei ial damage arisin<; livi. nnu^ual circiimstiiiioes id whith it had no -.lotici ( / 1. So long as the company is a going eoiieeni, tin' Ciurt i,.- apparently no jurisdirtion under th-' .'loth secti. n, to mi,';.: covts to he paid hy any one except hy tin- company ii/i, lir.; thi> ohservation does not apply to the costs of an npiHal ;. It the applieati 111 is made .rfter the liipiiijati.ii lue. tviii- nieiiccd, the Court has jnrisdiclion to onhr costs U) Ik j*. us it may think fit {ii\. The jurisdiction coiifenvd hy this section en [\u m • Wardt n ol" the Stannaries to reetilV the ngister ef toiiipaiDe (/») Hr.i Ulifttl Miirtlui Mining ('.,.. •X\ \Wa\. ll'.t. ,11) Sec l.'iiiiliiii, IliriinDiih'itii, «fr., /;.(((il-, :J J IWav. S.y2 -, Sim-Lh.n Mal- lmU( Iiou (V, 2 I'll. II. lol. (r) Lumhiii tind I'nniniinl T>'i- ijnijth I'll., '.> Ktj. (»53. («) iii-f Sr (lit tJi I'ltnilriitn ''-.., UIl Cli. I). 11:1. (t) Se»- Siih-ll'ii III*', :\ Cli. ll'.l. yiiuis rofc and TufntH nud I'un- (ii) .\,,i- ijiuliiwl.t I >'., 3"; L' Cli. iKia. (., >Uinifr V. I'iiij 4 /•<"•'' Millin- Inn. I or,,., 1 »(,). li. H '^'i (;/) A'j y. l;•^ Siii'fiit, !T Iv, :'•' h's piirte Kiiitrm, 5 I'ii. l''' (;) Kx iHirh Shun; iU- '>l'''" (d) Sff /•;./ jHtrtc Kintmy*" U."i. Ill A iiiffriiiit'ii <■"*'. 1'' '• ' a7:». iiii.l in U'ihhI'.hWi; I'' l^i •" the luiapany wx* enkivJ '.« F confn H8 Wtween noliritor and ta* witliiii llie distr jaiisil ctieii of tli \iitico ef an oi jh' L,'iveii (e tlic rt hy ij ilS of tl (niiipaiiy is heiijj iiiivc iKiWir to rcc is constantly actei tniK^, tlic actual iiiiport.inrc than t A ciiinpaiiy can (■(i;n|icl it to do S( i!vtry iici'son, inspect the coiilpa ;iiiy iiiirt nl' it, o iiu'iiiln'r is r;ititl( N.iiis limy he rcqui in;iy ill' tciiiiioraiil The act does nc v.ili! the company' !il:i\. it i^ CiiUCfix Milled if), III aililition to 1 iVi IT I .iliip;iiiy liji; uinlir penalties to iMeiiiliirs, and one, I ' liie rcL'istrar of ;i:iil late nil inlit-rs, ' 'ni|iaiiy\ capital, 'iivi.leci. ami the 1 ''111 allli'UIlt of cull: lil.iilSTKR. 125 ^^„,,i„ ,i„. ,listri(t of til.- SliumiU-irs. .l....s ii.-t cxrl-ide the '"« Z-^^^;'^^!'- '• jaiisddi.'ii "f tlio Ili^'li t'"nrt Wn- the suiim' purpoM' (/->. - N,,lia' i'l' !iM onl. r rt'clityin},' the register nui>;t in most rnsos li.' ^ivpn to till' rr;.'istnir(''^ llv ^ lis of tilt" net .'f lH(»'i it is provided tliiit wlim u c.rrr.-ti.m ..f • , • . 1 .... .1.. I' I ..•;...i:..,, ; 1...11 nt-ist.r mi ,„„H):uiy i> l.rii)^' \\«'nnd n\>, tli • Coiirl winding' it up >":'"«,„ ,i„. „,, „f shall ,.;i\v I'owt r to rectity the re^^'ister of ni.nihcrs ; mid this power '^'""l''»">- inconstantly a<-ted upoiU'/>- l" d< trn:iiiiiiij,' who are i-oiitrihu- toms, the iirtnid state of the rr;iis;er is therefore of much less iiii|u.rt;uict tliiiii thr stati" in which it oii^ht to he. \ cDinpaiiy lan eornu't its own re;,'ister where a Court would ,n;|l|Hl it to do SO O ). Vmyv person, whether a nieinher or not, has u ri;,dit to Insi).. ti.-n of 1 i,ir, t tilt' coiiiitanv's rejiister. and to have a eopy of it, or of ''" ;iiiv part of it, oil jiayinent of a small fee (!:) !V2). Mv«ry iiunilii'!' i^ entitled t>> inspect the reoister <,'ratis ; other per- MMis iiiav he reqiiirtMl to jiay one shilliiiLj ( |j H'il. 'I'he reoi^ter iiKiv lie tciiiporaiily closed 1!; ',V.\k Till' act does not ex|iressly mpiirf the rcoi>tcr to he scaled <'lw'rv.it,.'ii., .m 1 1111 • 1 1 • 1- •■''oi''t''"- v,;ti! the cHiiipany s seal : and a ItonU ucpt as riMpurrd by !:; 2.» ]\v.\\. it is conceived, he evidenci' nudtr S; ;{7. thoUj^h not si;i!i'il I f'i. lu adilition to the r''oi>ter of nieinlMis ahovc referred to, AiuukiI H-t urnl , . • 1 1- • 1 1 ■ » • 1 1 MllllIlUll). ivir\ (••iiiipaiiy liaviiiLj a capital (livitieii into sliaris is liouiid uiiilr pviiallics to keep in a separate part of its register of iihiiiIm r>, and once a year at lea>t to make out and transmit 1 1 till' n.'istrar of joiLl-stoek i'')nipaiiies, 11 list of its niemhers iiud late nieiiihers, and a summary showinj^ the amount of the I iiii|>aiiy's capital, and the numhor of shares into which it is 'iividfd. and tile nuiiilier of shares i^slled and fiul'eited, and the luuoiml of culls made, received and unpaid (»!§ 2t; und '21, ' Th, I'-it'iml ((«,/ I.omdj-, «fr., tli.m that coniViTed l.y ^^ X>. See '■'..it'll. .T.»,\ > § 3<;. '' N'l' siKci.d apjiliijatiiin t" r''tifv ihf io^;istiT i« la'ifSK.uy in llicM' c,t.«i • ; r.ml.inritlije'i c.i*-, iI 11 III ii M. t;4:J. The p.iwercun- N/.7i.7/\ (-.(.•-.•. .1 ( 'li. li:t; A'....v /.'icrr «'n. V. Smith, I., n. 4 II. L. CI. ;V) IliirH'i/'.t nisf, IM Ki|. ."»1-2, ami to Cli. Iii7. Set' iintf, pp. (53, \-2'.i. (/) Si-e ( '(TMt/vi//, itr,, Miiiiini Co. v. /;.ii;i»0. mmi 12G Tin; »oMi'A\n-.s A( i , \HC>'1. }»k. I thai. *■ nnd sclicd. -'. form K.) i litari r luivf lucn [^^■^,.;^ nntlcr the (Onipanios act. 1H()7, tln' annual irimii iuii>; ],, varird as iiiiuin'd liy that act(A>. Andwlitu iiii\ (•i»iiiiianv lias rcducid its capital under the Cmiitanirs art. Ism), ti,,, annual return must contain the i>ai ticuIar-> n(|iiir. ij l\ xi.t; of that act (/). Iii!.l>t.iioii. These documents when n';,'istered are ojien to tli. iiisii),!i„i! tif every t»n«' on payment of a suiall fi'e(j; 171, (1. ."> ; sir also as to tluir inspection, iij ;J:2i. 2. ('I'lnp'.iuits retjUltriii uuiltr tin ('omfHitiiix mt, I'^Viil. litt iiiilfmiii'! II lull r il. Little ntcd he ^aid with rispect to the formation .f C":n- ])anies which nniy he rerjistered under the act of isdi, In; which arc not fornu-d uniler its pr<'\isions. Siirh < inniiiiiiit-. if created already, must have \nvn formed eitln r miiierai!> now repealeil, or in one of the various methods whiili !ia liecn c.insiderod in preceding pa^'es ; and companies, il\iv;itiJ hereafter, hut not under the act, must, as tln' law at preserit stiinds, he formed in "Ue or nther of the same iiuthoils, that is to say, under some special act ot' I'arliauu'Ul. oi iuiIom royal charter or letters patent, or, if for workiii,' iiiiiio' iii (.'ornwall «>r 1 >ivonsliirc, ^n ulial is called tin (MNt-l"'..k )trineiple. it has heen already seen that le^'istratinn, under tlic u't. i companies not formed under it, is in some ca.ses coinimlMn, in some impossil-le, and in others optional (A t. With resist to existing companies which are retjuind to n^iistcr, amlwlmli omit s.i to do, the eonsetiuences of non-registration arc siiiiius (*tiiitt' iin. <'l : i-'ili«'U (k) Aiil>,\: 114 W (if./. i:,r, first, such ,1 nds cull lie lawti (M-'ii (if tlirir ilin (liiy (!) 'ildt (m), I'onipuiiics not n'gistcrcd uiuler (limlifu'alions (see o[- without liniit( liinitt'd, may be (;; lS(l)(r,). V.\vvy coni|i;ui\ tht^ act (!;;< 11)1 a I ihit deprive the c( (j li);i), iinr liisch (§l'.M'iy'». I hit liirlit Mu'ailist the e (;: !!»."»). 'I'iie cr. must, alter it> m^ it' l\iv\ caiiiiol oht a'jaiiist the iiropert| I [I'lii I'oiiipliauci (/) Acionliii;^ly it V tlhi'MMif tlu' U'ntnL 1 i'nav. .■)^'■|, tll.it ;i iiiiluiiy opidd in: |M I V"il!|.l llj. lcl',rr It \\,l- I'ti A i'iii,|i.iii\ 1 !rr,'i-tcr uiiil(_T ill,' ,1. t lau.l nvi'tiivd aciMr.l I til- Kllllf ])Ositin|l .I.-, it' •reji-ti'ivd Vi.liiiit,iiily, y ;i''ii. il. ;•>«. ["} i \s-2 u npiMli'i SStltUti-d vtliuli fU,i, tcl [jMiiii,'* ni't, h7:i, 1:; \ -1 ( ' A ci>iii[i,iny ri'j,'is' [linutiaiinyl..- .iliiTNNai \ii liiiiitnl liiuLi' th" L'l ! IbT'J. ' I) bfi; llnnu's Sviiji p'. I'.. N..S. 800, wlui I» ''•■iiipaiiy iv-isti-ifd ' llKOlSTUATlitN. 127 r,.r, first, such C)!!!!*!!!!!* 'S ( ■nntiot sue (/) ; sorondlv, ii<> divi- '"'• ' Chaj.. i (l-'iii e;u' Is Clin lie Inwl'iilly i»ni to ii i».'iialty of .>^ pur CArxxH i. ihrii '21 (It i"ii ('0lll])ilIlU'S iidt i'oniiril uiuhr the net hut ciipalih' of hi'inn of IV'M ,tciT(l iiiiiUr il, may, siihjcct to ((rtain rcstriftions and cxi.stiii){ Cum- Ii:iliii-s wi til (|iinlilu'iUn>lis (sec -J^ ^^ 171>— IHHM/*), he n},Msti-n'd .-ithcr witli ''"'"*-■*' ''*''''''y liiiiiti thoiit limited liahihty (5) ISIM; and such liahility, if luav he limitctl cither hv 'Miarantee oi- hv shares (^ 180M<'K rogistratiou. V.wvy ceiiiiuuiy when reu'lstercd boconies incorporated under Kir.vt ..f tlio act i;;;^ I'.'l ami l!>"ii. 'I'lu' incorporation, liowevor, (h)es iidl deprive the company nf its property or accpiired i-i^hta /;; I'.liM, iiiir (lischar^'e it tVoin its debts or other liabilities (!; rjlMj'i. l>iit after rej^istration no execution uixm a jud^'- lllrllt a''lU ust tl le company <'an be issued aiiainst its nieiubers c; ID.")). 'I'lif cri'ilitor>, therefore of an existing eouipauy iiiust, utter its rei,'istration, procei -1 to wind uj) the company, if tluy caiiiinl olitaiii payment i>( their debts iiy execution iiLaiii>t tilt jir<>|ierty of the company 17). I piiii nimpliaiic.' with certain reipiisitions nientioiud in the (/) Atvonliii^^ly it wu- liol.l in t!:. MM»i' of till- Wilti'rluii //i.<((r. ''■'.. [Ill i'iu\. "js ;. i!,,,i ;ia iii.-uniiii't' iiijMiiy loiilil 111; jiititiiMi to lie ^w.iiiinl ii|i It'f.'rc it w.i- rLvi-itered. '") A i'iiii|iaii\ IV laiifil til 'ri.,-i;iir iiudfi- liu' ait liy § :IU'.i, ainl re;^i>tiivil iicci>r«liiij,'ly, is in tilt.- iKime position a.i if it lnii(;/'.< cd... , [It) \J lyl u r.jie.ilnl, ami ,. siil.- ^Jtitiilrd Mtlioii oimctnl liy tlic ( '.1I11- 'l^'.iu-a>l, l^T'.i, \.i\ i.-j Vi.i.,.. Tii, J"- ( ' A ciiiiiji.iny ir;;i.>lciTil a- iiii- . limib-l urn I., altcrwanlrt iV'ji.stiT.il !■< liiiui,.,! i;ua.itli"(' i^i.iti'U'd wiili liniiti'd liaMlity undor is \ I'j V'iit. e. i;j;{, Nsa- liil.l imt tn be disthap^'fd liy suili iv;,'istniliiiii. (7) Till' olfi-i I iif rfL,'i>tiati'iu mi the lialdliliis of meiiititrs will l><- cijii>idiM«uturi>d I'll the winding' ui) of tin- riiiii|iaii\-, Fiiiiittitin'ti I'lv, 11 Jur. N. S. :>:..{ ; and that § l'.»5 docs noi I>iivi'iit a .-harchiddcr in a lost-book iiiiiiiiij^ ioin[>aiiy, who hinl ntirud l>efore tin; i\'j^isi;iition, fmni ln-iiii,' fUi'd in nspt'ct of a dtht lontiactod whilst he w.is a shaichuUkT ; Lanijon V. .s'wi>/t, a l\.&. Sia. !>;J.s ; 7/,/nvi/ v. (loii.jh, -1 X. H. 1'04. As tl. what companies cannot ri'^ister, etc {inU, p. ll.'i. w i28 Tin: COMrANIKS A(T, 18l)"2. Ilk. 1. niai<. 4. „et^ an,] wlncli need not bo Iieic snocifuMl (sco !{15 100 170 ani I'laMi 4. ..)!., mill 183 — 8), th»^ ropistmr is reciuirod (n oortify tlmt ilic romiinnv is iuoorporntod under the nrt, and in tlic case of u ii,„ji^|| rompany, that it is limited (§ liH) ; and his certifioiito is mii. elusive evidence that all reqtiisitions have boon complied witli and that the com puny is aulhoriscd to he lej^istci-.-d ik i limited or unlimited company, as the case may be (); V,)'lui'. Change of iwmc. An existinj^ company cannot, ap|>arently, clmn^'t' it* iinni. on refiistration, except by addinj^ the word " liiiiitcd " ti i!> former name. (Compare !^ IHIl, cl. 3, and |j I'.lO.i \fi,, rcfjistration, however, it has the jiower of rlnuf^in^,' lis iiam, as if it were formed under the act. (See ^ij ]'l, 1:1, ill, aiiil 19fi)(«). N:.'nilK'i->liip in The question who is a member in a couipuiiy rcfiistiwl, ' but not formed under tlie act of 1H(»1', depends upun tlitcuiiyti. tiition of the particjilar company, and must be dctcnnincd upon the ])rincip]es which have been already considered \sei> !; IHl'. ^Vith respect, however, to companies jtoverned Ity tin- reitenleil acts of 7 i^ H Vict. e. 110. 7 A 8 Viet. e. ll:l aii. C'onipanies formed under 7 \ H Viet. e. 1 1(1, wciT inoMr- jtorated ))y registration, but before bein;^ so incorpornted tlipv ])assed through a preliminary state, viz., that of jirovi>iiMi;il registration, t'le object of which was to enable tin' luiMn t' ascertain the nature and objects of the i)roposed coiiii);iin aiii the persons who projected it, I'rovisional registration did not incorporate the company or its promoters (/), nor did it i\\U' their liability for each other's acts (»)• A certitieatf ef (nm- plete registration was necessary to form and iiicoiiumit'' thr company ; and before this could be obtained a died of taudiiig the i iitiiiiicd in table ithnse companies w pfliiies net, IBG'i, \\ herefore, must be li(»t a member of si pnuius registered u I their rtgultttioui '-'■•■ ^* (j) J'linive'i Iron Ca. B. 40G ; llird'f ca»t, ; I'ilbmc v. Pilbroic .,•'■' C. ]}. 440. (;/; Sve ante, pp. 4',\ ( Ihmit V. Hurd • •'^- '>ii ; I'owis V. 1 ; Thompson v. Ifiti V;/ V. lUmll, 3 ib. ( L.c. KECJISTIUTION OF COMrANIES. 180 [the net had been duly coinplit'd with (.r). The ftct defined u ^^- 1]^*^' *' I slinrelioliler to mean any porson entitled to a share, and who liftd executed the deed of settlement or ii deed referrin{» to it; and it was held tlmt no person wns a shareholder who had not I executed such deed (.'/). Chiirtcred bankint,' coninanies were formed under the repealed Chartn/Ha /(( ihuir reguliitions, deeds of settlement, charter, A:c. (<»). -' J/^ {■') /"I'li'fi Iron Co. V. Jiarndt, 8 /'i76rf.i(' V. Pilbrou-'s Atmospheric fc..^''-'.B. 4-1(1. (;/; Sec ante, pp. 4.3 et seq. {:; Ihmn V. Hardiwj, 1 V. B. *■ S. :>-2i ; I'ou-is V. Harding, ib. BulUr, il). 045, an.l 4 il.. 4(il) ; IkinitU V. Koyal llrit. Hank, 1 II. & N. 081 ; Jfniiitrson v. i:o)f, not«J («•). L.C. 180 II.I.KUAI, CoMI'ANJLS. I-NINCOni'OnATE IJk. I. Chap. 5. Sect 1. CHAPTEll V. OV ILLKtJAL COMTANIR-J. SFXTION I. -WHAT COMPANIKS AHK ILLKUAl. It hns been said tlmt unincoiiu)riiU'il joint-stock cdiniiaDJej with trniislVrnblo shftiTs are illegal at connnoii law, lirst, because the privilege oi haviiiji; tiaiisferahlc sliarcs can only be nciiiiiml by charter fron> the Crown, or by an act of Parliament; lUiJ, secondly, because all such conijianies arc duii;,'er(ius, mis- chievous, and, in short, public nuisances. lUit tbis viiw can- not, the writer thinks, be supported. 'I'he tuicstiiiii has now only an liistorical interest, and the following note on the subject is reprinted for the convenience of those who mav desire information on the subject. Xolf "(I thf. lUdthle (!(•/. In oriii-r tu iiiveslij-ate this sutject prmwrly, it is lUfCiSj-ary to advert to the celelmitcd " liuLble act"' of 171S>, aiul the deiisioiis upon it, k although that act is rt-pealeil, the dihcussions to which it gavi-rL^w constantly ri-firrc«l to win ii the illi-t^ality at conunon law of joint^txi companies is alleged or denieil. The iiubble act (w for the sake of gaining space. Tin- act was repealed by <5 CJeo. -1, <•. S)l. The eailii-t ri-pnrted dicision on the liiiblde act is 11. v. L'awoud or Cay- wood, i Ld, Kaynioud, 1301, uud 1 Ktr. 472, l.ut that ca.-c lLro»s M light rin any queatimi I'f promt inijjortance, as it nu-nly rilatt* to the punishnu-nt tn be inlliitt^l "»' person found guilty uf an iiifrio?- nient of the act Sec as tu the iiii- tory of this act, Cullycr on ¥si» ship, p. 722, ed. 2. 1 The iisiii;,' uf eh I. The fiinnutinn ( the jjrievance of the ( 1. With resjK-ct to lii-lcl in Ii. V. U'M power to make bye-hi corporate ; hut in the diliVrent ((pillion. To been siiiil to amount ti s'li'h hollies corjxirate jiosse^s stock, till- Amr •2. U'itli ri'S|H'ct to I iiiiurporateil and »\^cn profi's^t'ilto liavf its st Itiiaiiothfr without res: not thus transferal lie, t be approval liy a Cinui lin.-ut(/), urto person: WIS not necessarily illc jinwliich were to be ti lilkval, tlic sclieiue hav Iraihvay Company, the s jaihl the projectors i^.sui Idunc without the autlu [not illegal [{). 3. To use charters fo Inot only by the act, Im jhowi-viT, appear to ha\ [now in question. •1, La-tiy, with respi Ichicvons, and tendiii;. V. /W(/(i) it was 1, ni'on a i^rosiMjctus wh «ynnil the amount of i'j) 14 East, 40G. ('•) 3 B. ,^ C. (initeil iind .xitecialiyemiKiwered to possesH Huch Btock was illegal, if it profussi'il to Ikuc its Htoik divisible into shares transferable fronj one person toaiiothiT wiiliout restriction (c). But it was held that, if the shares were [not thus trauafenible, their transfer l^eing restricted to such iR-rsou as should jkaiiprovecl by a committee, a..d as shoubl enter into some Hpecial agree- [iuuiil(/), or to persons alreaily members of the company {y), the conijiany [WHS not necessarily illegal. A scheme for establishing a tontine the shares 1 in which were to Ik; tnnisferable after a certain time, was held not to be lilkval, tlic sclieiiie iiaving failed before the time arrived (h). And where a [railway company, the siiares in which were to be transferable, was projected^ [aihl the projectors issued scrip, but resolved that nothing further should be iduiii' without the autliority of Parliament, it was held tluit the project was [not ille},Ml ;i'). 3. To use charters for purposes not authorised by them was clearly illegal, tnot only hy the act, but at common law. This ground of illegality dues not, ihnwivtr, appear to have Itcen made tlic subject of any decision on tlic act [now in iiuestioii, 4. Lastly, with respect to the general ground of illegality, for Ijeing mis- jchievous, and tending to the grievance of the subjects of this realm. In . V. /W(/(i) it was Ikld that a comi>any with transferable shares leased ftpon a prospectus which declared that no person could be accountable 'eynnd the amount of the shares for which he should submuiU', was illegal, l!k. I. Chan. 5. Sect. 1. Ansiiming to Kct lu A cor|>oratioo. Tninsferablo nbareii. Using charters iuntroporly. TeuJenej to iui»chipf. Hex V. DoUJ. {h) 14 East, 40G. ('•) 3 B. .V C. (;39. Adopting a laiiie which neces.-arily denotes a «rporatiou is assuming to act as a loipuration, R. v. Whitnunsti, 14 Q. ' ^0.3, So is the assumption aud ! i'f a common seal, Cooch v. i;<)n,l. «", 2 Q. B. 580. These cases were decided oi. the Hubble act, anulilic. In It. v. ll'M^I) it wa* \\v\A tlmt a < oniiianv, ths sliari's in wliirh wcro transfcraMo, Imt not without r<-tri(ti(Jii, wm w noiTiwarily niincliiovous ; and tlif jury liavinj{ fnuml iIihI tin.- cumiianvtai in fact ratlitT iK'ncficial than (ithtTwisp, fht- roniimny wa« held to lie l^.-aL Ac n'>;arilH tli«« inipnrtant (jUfMiiin, Iidw far tlie nurr mlHiii:' lr,iii«f.ralJe 't<>ck was, ;>.r *f, an oirtnci' apiini«t tin- act, tin- Court inclined td tiiinkihi: i,' vaM net, unless tlu- cianpany liatl in fact a niiscliii'vous Iriiiliiicv(Hi), In JoiK/i/iji V. /'tV)r«T(»i), a company, with slum's tranaferaldt' witlinut nsttictioii, was lii'ltl lo In- tK'arly niischifVini.s particularly Ixi .uisc the >lmre< were (.111 at a very conttitlcraMc ])rfmiuin. Ald«itl, ( '. .1., tlmuj^ht thai this tendwltu intPHlucc punin^ ami rash sju-culalion to a ruinous exleiit, to tlu'^tifvarK' of number* nf liix Majesty's nul'jectf*. Su< li are the leading lU'ci.tionn on this o»del»rateanie.s of the n.iturc di'siriUiin the act arc illepd at common law. This (jucstion is unc of ynna importiince, especially in the colonies, und reijuins tluivfure caitfiil consideration. Lord F3!don, who certainly hail a jn'wil aversion to coiiipaiiies, skcnii Id have been of opinion, in Kimln- v. 7'(ii//(>r((i), that companies with laijt cajtitals, ari8in^ from numerous small contributions, and with tnui>fcnb!r shares, were injurious to the puldic, ami were ille^;al, iiiiic]ieiiiiiiii!y(f ik Bubble act. The Kjime ojiinion wfti* e.\pre.sseM, 4 Taunt. 587. («) 3 B. & C. 639. (o) Coll. on Part. 917, ed. 2. ( yi) Dinenjicr V. Fellotc a, b King. 248 ; afhrmed 10 B. & C. 826, and 1 CI. & Fin. 31>. (7) Illuiuldl V. Jl'imvr, S » »;tii. (r) G Bing 24S. nnd 10 6. i f 826, and 1 CI. & Fin. .31». (/i) H Sim. (yn. Thy « ca- not lie supjiorfed. See IhmtTi^- Heathorn, 6 Man. & Gr. H. Ii lilundell V. JVimm there wa* nolii fact any such h..ldint.' out as sup- posed by the Vice-Clmnceilr. rviNTonronATF.t» compamrr with TnAN«Fi:nAni.K sharer. 133 .hiirescciwi'ltobc lialdf to tlicMleltt-t of the coiiii>aii,v ; ftii.l lie wIIpcI on Hk. I. Cli.ip. 6. thin as 11 Kroiiiitl of illfK'.ililv. AIiIk.m^jIi, tli(Tif..rr. in <'U
  • iiiion tliul llio oompany \v,i« illc^,'iil, innKum.h nn it IMiiht'l uiu'ii the |iivr(ij,'ativ.' ..f tli.' Crown K.v aHfUiiiin;,' to ilo tliat wlii. li camint I'f lawfully d'Hif without Hi^fial uutlmiity, th.rt' wcrt' mlilitional cin iimslaiUTK, nndcrinK' it nnnfccs!*«ry tutli'ciili' on tiiirt ^Tnunil alono. In ll'iilLiiriiV. Iiiilill'ii(l) l-'Til ItroUj^liiini ili'clirifil in ilcilarf an niiini'orporalcil W.ill.iirn r. jdinMock loniimny, witli transfi-nililo HlmroH, ilN-pil ; altlnni^li the lhy. mllK'incnt Matiil tliat Jiruvixion Wiw to I'p iMiulf, in all .n^^'aj^fnit nl.-t to !«• nittretl into liv the ij{ht thin chiiHr %.■«« nu>;fttory. ]n Homiril v. Ilnrikii(ii) it was hehl that an nnincori»oratMnnt'il the name of " Tln' Linn'rifk .\!, iMr ami llirliv. St iiii' ('any,"an'l lia>l ii 'apitil of ftO.OOo/.. ilivisihlc into r-un tiansfir- alilr slinres wns not ilh'jial at connnon law. It wa« in thi-« rase ileclarftl lliat till' raising' aiiij traii-fcrriiij,' of stock in a runi|>anv cuuM not lif hfhl to Ik' ill itM'lf an oll'i'iiii' at lonminn law. In l{iirriiii>n v. Uinthnrn (r), a Hirriscin r. similar ccmdibion was nrrivi'd at. In this tmuMf the comimiy's deed of Hc.iilmrii. nittlfiiirnt iifiividcd that a ]HTson ceanini,' to he a sharehoMiT >lionld he entitle"! to a ifiliticate derlarin;.; him di«<'har;,'ed fmni all liahilities on actdunt of the A\a\v< formerly lnld hy him. This was, in fact, the same coiiiiiany lu wik lieM to he ille^'al hy Viec-C'hancell )r Shadwell in llluiulil! V. iriii.oir, wliiili, thoiiL,'li not overnih'd on aj>i>eal, can scarcely Ik; siij)- pirtfil aftir till' ili'iisioii in Htirrioin v. Hnillmnt. .\tti'nij)t8 liavc also heeii made to iniliice the Courts to declare scrip Scriji coiin>auie'. compariit's (i.'., uiiimorporated Ciimi>anies with shares transferal de hy liilivery) to he illci,Ml at common law (;/). I'.iil these attempts ha\f ken uiisiu'cc-sl'iil. The ca^e of Uhnnhll v. irinsnr, always rdied upon as an authority hy those who conteml that r.nch a conijiany is ille^'al, lia? niwr unt vvitli approh.itioii fimu the hench ; nor has it ever Ik^ii fuliowccl. rp"!! ll:c wlmic, therefore, it appears that there is no ca.se deciding that CuiicliiHion from a iniut-siiick. ioiii|Miiy with tmn-feraMe >hares, and not incorporated by 'l** '^''*'-*' cliai tin .rait of I'arhaiiieiit, is ille^'al at common law ; that opiniona have nevirtheliss ditfcred upon this ijUestion ; that the tendency -al ; tliat thiii tenii.iicy pxi.->t.< noliin,'cr; ami that an unincorporated company with transferahle shares will not In' lulJ il!ti;al at lomiuon law, unless it can he .shown to he of a ida«<;iTuus and mischievous character, tending to the grievance of her .(lujisty's suhjects. The h'<,Mlity at common hiw of such companies may I tlidel'urc he ciiiisidt.'red as liimlly estahlished. I (' 1 M- ^ K. (il, and Coiiper, l(t"|i. l>ri)iij,'liani, -JTn. (") ■'' Mm. i\ Cr. 471. W 6 Man. & tir. '^l. See, too, [ffl/'jian/ V. (.hrnforil, 1 K. & J. 41)1. {'I) fJee I:/ parte r,ardmj,'2(\ ]]cav. 177; H-iptiitu At!toii, 21 Ueav. 474, and 4 De (5. & J. 320; Kx part-- (lri»etr*iiiri> with trttnifrrnl'lu ihAre*. II.I.FOAT. roMrwiFR. 1 1 in not mi^y U> nirivo at any t>thor conclusion if thr (|iieatiou i«e>iiiwi witliniit n-fcn-nce t<> thr ilpoiKioiH wlii>li luivo ix-on notiiHij. l.'„f I. It i* not illi^f.il !'i>r |ht«i>m«, howi'ver nunnTnun, to enter intu tiplinarv «*(-oint' one, kIiaII tnkt- liiii iil.n'c. 3. It iH not \\\vgt\\ for pftrtinrn, howi-vor nnmci-ouit, In a^^Toe ones fon tlmt any partner wlio i;* willing' to n-tin- nlmll be at lilnrty kk to cjn, an] ; intnulu'e in hi-< ]>laic any ]>erHnn s«lecl<'.l liy liiniwlf. 4. It i;* not ilKj{al fiT an out-^'oiu^- jmrtner of a lirm tKlaMi^lidl »n il la»t principle, to retire in favour of an in-roniin;; i>artiM'r, u|i5s' annnpr mori' or leaa than he himself juud wii,n i entered the firm. C. It in not ilh^ai for tlie iiienilHT.t of a partmrKhip to auMiiur a umt and to nj^ree »!:.".• the management of-itj< attair.t, 1'otii extern il and intfrti, shall l>e t ntrusteil to a »elect few. ami that tlnwe few shull lia\f the pcu : to make ■ulos whiih the otherx will oln y. If these ]oio!i.«il)le to ettablith the ille^ility at eominon law o| iiiiiiicuri>iirat. joint-Hl(M k comiNinieH with transferalih- Hharvs (n). To f»iy that xudi a p^rtnemhip in illegal, liecuuse it a.''.*uiiu'.s to nctiui corporLtion, ix untrue; for none of the alxive acta are cliara'tiri>tio ' cor]M)raiioii«. What >li«tin);uishert eorporations from other Uxiiis i* thu inde|>en»lent personality ; and !io society which ilocx not arro^'ate to ii*l this character can be fairly said to jissuine to act as a corporation. Loiii- tliifl, it is by no means clear that it in illegal at common law to auume: act a< a l)f»ily eurporate ('»). To assert that unincoriiomted companies w'th transferable -luire.- are iii> chicvouH and dan^'eroux, and therefore illeptl, ia to assert a jiropositinn li truth of which has not yet been esLablishetl, and which theref.'re ouinitl' admitted as the basis of a judicial inferemo. This ;,'i-ounil of ille^-alin would prol>ably not have In-eii nlied upon so much had it not Ikiu forttt technical rules of ])leadin;{ which required all the niemlH-rs of a tirai, li' ever numerous, to W made defetidanLs to actions and suits ajjain-t tlio finu This rule undoubtedly creatitl ditlitulties in dealinj; with laPn't) Ijohwi perBons unless they were incorporated ; but if the ijuestinn in reJuceJ v- this, viz., whether the rule, or a company to which it is iiiapplical'Ie, nn"-: deserves to be characterised as mischievotis, the (juestioii niiii't curtly l<^ answered in favour ol the company and against the rule. The rule,hi)»- (•) Ante, J). 133. See the ({ualiti- cation in p. 131, note (c). («) See If'alhurti v. Jngilhy, Cooj)er, tmip. Brougham, 270. (6) See 6 Man. & (Jr. 107, where Tindal, C. J., says, "I am not aware that presuminj; to act at a botlycfi- lH>mt4; viis an odVnce at commi- law." As to aBsuniin^' a coriicnit name and using a ci/riiorate5(iu,ic antf, p. 131, note (r). trsisTonroiiAi Lcr, Ihiir.' c>tablis lh<"i lin>lui,' il pi'ct, i'of llif (is^ociatioii, or p SovciulHr, isii'J jTollows that ciiiii |(i register uii le; til this respect tl Bf iM.-.liaiid IS.-,; Vict. c. 11(1, niiil ('oiii|ianii's fni bcnniroil by the Hot illf;'al, iiUlioi Dvero (see S; 210 The (juestioii w pf W>i iilV illeOM |>f [,'reat practica libt he paid im Jso to the (liU'e; U) .*tcl' ace. /■.'.• y,.| D.»:'.i'.t; S. IfiiU^ All »., :! Cii. 1). 7(13 ; IT"", biCli. .-iti; 11 i:. 1 <'. I'. IH. y;-,w„, 11 Q. It arl' I'^fidflmt, 11 I ViUh V. Anilir-iOii, 1, »eiTlllili^ S'il;,i V. ; l>. IT'I ; I'luUtnir Tu X'li. I».137; hrt , all noticed m\U (■' See-2iiv'v 21 V Id ' . 4;), ^ .-,. ■(•) As to wliiili ~, uxiNTonron.vrrn companiks with Ti»ANSFr,nAm.r, smaues. 13.-1 Lr, Ittiii^.T-UliliitluMl ft« liiw, tlio jmlKM ft-lt hound to mlln'n' to it, ninl I-k. I. fhftp. K. ||li,'i liiicliii>! it (lillii'iiU to (leal willi uiiiiicuri'oriito I i-iniiiiaiiirii, iliclur. y llit .Jiuiiaiturc iu;t« anil ru!'- mmlf umli r iluin. Assmninj,' an luiiiicdrpdrntol joiiit-stDck compuny not to ho Kir^-t of non- Ijlli i,'iil at fomnioii liiw, it rt'niiuns to l)0 coiiHideretl wht'tlior jt '■''K'»'f»i'»"- Is iviidcivil illc^'al, l>y stiituto, if not ngiHteretl. The ('o'.upanicH act, 1H(J2, is cxtrrnicly importnnt in this Componiuii art, l•o^lM'ct, for the Ith section says iuipcfativcly that no nmipany, '*'*'''• ks^iM'iutioii, or partni rship, shall he fornKMl aftrr th(> 'ind of (ivi nilu I', iHd'i, except as therein nn'ntioned. I"'roin this it illiiws tliat ciiiupanics, associations, and partncvsliips rcrjiiircd ^0 it;,'is(('r nil Icr that section, arc illc<,'al if not rc-^Mstercd (c). ill tills rcsiKi't the act of 1K(»'2 dillers from the Companies acts Bf l«"i(» and ls.')7 (r/i, and rescmhlcs the older acts of 7 i<; 8 [i'iit. <•. Ill), and c. ll:{ (.'). Cuinpanics ftmncil hcfore the 2nd of Noveniher, 1802, and kiiuiroil liy the (drnpanies act, 1802, to roj^ister nnder it, are it '\\l"j,'A, idtliou;^li the oonseqtienccs of non-re^^istration are Revere (see >; 210). The (HK'stion whether scrip companies formed since the act •''"•'■''P ■'"'n* |)f ISi'i'i are ille<;al, lias not yet hcen determined (./') ; hnt it is .'nut practical importance, and hefore dt>cidin^' it attention iibt Ito paiil not only to the precise lan<,'Maf^e of the act, hnt Isi) to the (litVercnce hitween aj^recments to form companies ('•) Sii' aiv. AV i>fiiir Ihii, 1 Ch. lUmUutu; .'> Kx. 8^2, as to iMinks ; .•;'.tll;S'. U'lil-.i AlldHlic Staimnltip and hr tu other (•oinj)anii';', lliitt v. '■•■J. Cli. I». 7tJ3; AV jmrti' Har- Mimkaux, 1 K. & J. «8 ; Sliei>i> ; Jfitniiuji v. Vict. c. 110, did ni.t ajiply to ccMn- 'liniii,i;iiil. '.I (^>. ]! l». 2-J."i ; Sli. I.'iT ; /(( n Sid.hll, 2!» Ch. Land Credit, b Cli. :Wu\, and /•/mky.^ l.allnotiml.o)^^, p. 114 li:,. of HniM \. lloi>,h. K. .") 11. L. 17(i. 0'; See 2i)^ 21 Vi.t. .•. I \, § .1, it is t(deral)ly iduin that .sli.w.-^ not IMUICS. I'l i'. 41), i; .J, ■{') As to which »ee O'Comor v. tninsferable to 1 paid np in full cannot he made )earer. I : 13G ILLKOAI, rOMPANIKS. Diink I l^^- j^h^v- ^- niid I'lirtiuTsliips ami coniiinnics and piutiiorsliiii^ wliit], ^j^, aitually fonnod (//~i. Scrip coinpanies arc not, in tln' writer'? opinion, ilUgnl at connnon law {h). The only other statntcs to \vhi«h it may hv useful to nllnii, in tho pivscnt conncition me tlioso ri'latin|i to liaiikcrsd'l, liy 7 S>i H ^'i(•t. r. Wl, s. '21 (/.), all bankers are nijuiroil ,,d the fir>t day of January, in every year, t>i make a ntiinitotli, stamp oflico i^f their mimes, residences, and occuimtinns, urin the case of- a company or partnership, of the naino, nsidence, and occupation of every member of the after (Intel,', ; v,,~ lawi'ull\ is> ^) See Part 11., p. 23, et *fc 2;i an,' iiinalrd I'V 37 & 3S Vict. 0. '.m;. Issue of m.ti-s. (0 '^'-^ ^ •!'• *'••"•■ ''\ •••• ^^ § ••'•; 7 It'.'i). 4, 0. 4r»'>n, a I'.in-. X. C. .^h9 . Iniuk I'f Hii'/hmd V. ]!<>',lh, 2 Kcin, 4Cti ; mill nil ajipi(iik<-r?( («'-\if]pl within Ijoiidiin or tliiTc niiifs tliiTcor, jiioviJiil tin y (ibtaiiu'd a lici nctr and ;.!avi' a hccti- rity, H- itMjuiriil liy tlu; act. My 3 & 4 Will. 4, c. H3, § 2, it wit- mo.!.- lawful fnr I'.inkiiij.' firniH nf more than six jH;rriiii.'li ;iii a.-'!.:, or to draw ImIIs or nolts i![".ii,.:v u^jfiit in London, I'ayaMi' on inand. or otlivrwi.-ii', in I.ciidvii, .a; for any h.-*-* amount tliau .V''. Then lln' Itvi-laturi' nt!ti'"l :: >tf]>«, conffiTiiiL; hy llie \v\ of 3 '. -. Will. 4, c. i)s, ifilain privili:'!- : the IJaiik of Knj,;laail, and t!;; ing (§ 2) that (lining; the ci'd;;:,: aiuv of tho-r ]iri\ iltj^'i's III! Vmx linn of more than si.v [tr*!.' (ihouhl i»8ue ill L011.I..11, or wiliuo «ixty-tiv<- niilts lIuTii'f, l>ill< : iioteH payalile on di'iuautl, «itk ' proviso, it-i to tirais carryin;.' ' liusiiu>s licyoiid tl'.at limit, fiNonr of hill-* and rmtts, j-uVi throiioji ail nj;i-nt .u l.Hinlun, j: • for not \vM than :-.'. Ti;.nly:iif 15jink Chart.T act of is4t : >^ * Vict. V. 32, s<$ 10 .*;: 11). it 1^'' actPil that no iictviai, otliii tk linker, who on thf CtlinfMav.l'if TANKKHS. 187 Upon tlnso stiitutos, it was held, lliiit a banking' coinpnny '*''• ^'^ '''!}'' if moro than six persons nssociatod lor tlu' purposo of issuiiif Sect. 1. notes riivalilo on domaiul, or within six months iiftcr (hitc, was not i!'''tiiil uiih'ss it was proved that the company issnccl such notes within ' ty-fivc mih\s of Lon(h)n (»/). I'pon a similar statute nliitin;.' to Irtdand in), if was ludd, that in order to Publish tilt' ill»^;idity of a haiikinj,' company npoii the ^'ronnd Ittnkr Ithiit its hi>n>cs i it husincss had hcon, lidm tlic tinn; of tlie ivniatiou if tlic company until llio conuncnccnK nt of the suit, itnd tlicn were, at phiccs in Inland witliin fiftv miU's of I'libliii, it was m cessary to prove tlie existence of a phice of l!i>in('s> witliin that limit for tlie wlude time alh <4ed (<>). Tho iblatiitt's ill (lucstion, moreover, have been held only to atVect w..- kwl'iillv i-suiii.t,' Ills own liaiik- iii'ti's, shall issue aip- i'aiik-iiotfs in laiiv ]>iiit wf till' I'liitfil Kiii;„'"Vim ; jnii'l that it .hall not ]><■ l.iwm! fc.r laiiy bankir to i>sut' in Kn^'Iaml ami [Wales liills or notos ]iaya1iK' to [VaM' on (Icnui'nl ; cxi'ept that it Itlmll Im> lawrul for anv liaiiktT who |v;is (111 till' (illi of May, is.y, oarry- !iii.' nil till' laisim ss of a banker in jlaid.iinl or Wales, and was iIilmi llawfuily i>-!iiim in En.ulaiid nr n\,il(> Lis M\vii li;'.;:k-iiotes lui'ier Itlir aulliority of a lieeuce, to d^n- itimiL' to i-siic such nnies fo tb.> liMiiit ami under the condiiioii^ llmiitiuneil ill the aet ; ami by ^ 2(i, |il is made lawful for bankin;; tirnis, llii'ii.:;li of nil. re than six nii'inlicrs, -irryiii^ on liu>ine-s in Loi, l,.n, <.r viihin s'xty-tive miles thi-rcof, tc. ili.iw. aMei'l, or eUil'.rse bills not J):iyalilf to Leaivr on ilemaml. Such |« till' -tate ,,r thr l.iu- ,,n tliis .-ul- lectattiiei.n-ini time. Th.- joint >ikit 1. 1 tlie ai„,v,. enaetuients ton. t., 1„. that ; (I.) Th.; P.ank of Eiii.;liuiil .an alone is>ui>, in Lou- Jwi, IT within tllive mile.S of it, ^tiUsii.iyihlr t,,l„,,rer .,n .bmaml. ^•'J beyond iliat limit Mich notes nay lie issued by baiiki-rs who wer.- lawfully issuing; fheiii before May, i,s.suc of notes. 1H}4, inxler a lieenee ; Imt l)y no other liaiikers ; ami not, therefore, by any baiikiii;^ lirm of noire than .-ix )persons earryin^' on the loisinoss iif bankets within Mi\t\-tive miles of London. In uthtr words there are thri>o lipul.s : (1,) London and three miles rouml, in which the I'.ank of Knj,'laml has an exclusive monopoly. (:!.) The district niorc than three, lait within sixty-five miles of London, in whiih the mo- no, ._.• is divided hot ween the Hank of Kn;Jand and banking' firms of le.ss than six nienihers, lawfully issuing' not.s bef.ire May, lSf4. (:J.) The district more than Bixty-tive miles friitii London in which the mono- ji'dy is di\iefore May, 1811. See further on this subject the note to the Cos. act, 18f)'2, sched. 3, part -2, in the Appendix ; .l.-'r'. v, /u/lWA, VI (,V If. 1>. GO.^. (ill) L'linsfiinl V. Cojir'litnd, (J A. & K. 1-2. (/•) (;(;eo. 4, c. 4-2, § 10. (o) Ilmihea v. Thoryi; 5 M. «l^: W. 138 iM.Kr.Ai, (OMrANirs. I Bk. I. Ch»p. 5. pftrtnorsliips f.irnifd tor tlio piirj^oso o{ rarrviiif; nn tlio Inisi. ncss (»f a lnnk»r, nnd in)t to intcrtorc witli tlu' issiio nf imtH by tinns not ortrn iiig on such Imsinoss. Bj* nn net wliicli prior to 1H57 rcgiilatod joiiit-st,,,)^ i,.,,,!.^ in Kuffland (7 \ X Vict, c. 113, § 1), it was imt l;i\vfiil for imv coniptuiy ot' inori' tlmn six persons to carry on the tniileor business of hankers in I'jigland nndcr any aj^Mccincnt orcovf- njint of co-partnership made or entered into i in nr after the Gtli (»f May, 1811 {]>), unless hy virtn(> of IcttiMs ]iattiit to lo granted hy her Majesty nccordijitj to the provisions of that a't, Any hanking company tlierefore formed since M:iv, 1S14, ami not under letters patent, was altoj^etlier illef,'al if its nunibtrs were more tlian six in numher {./). l>ut tln^ law en tiiisluM has been altered hy 20 \ *21 \'ict. <■. Il>, and hy the ( oiiipanits act, 18()2. The conihiiU'd etVect of tliose acts apiian'iitlv is that hankinfj companies of ten or mor( nieinltt'is fninieii between May, 1841, and N'ovomher, iHll'i, nui^t l>c ivpsterai unless formed under letters patent, htit are not illt u'lil by reason of non-registratiini (r), ami hnnkin;^ companies nf tdi dr iiiire mendters f<.»rmed since N'ovemher, lH(i'2, niiisl lie r('p>ttre(i, nnd are illegal if not registered {s), Chciuistd. An incorporated company nniy carry on husiucss :is oluiiiisis nnd druggists if tlie persons who actually sell ami dispoM drugs are duly licensed so to do (H. Tlic i)rin(ii>k' nf tlie decision which settled this is ni>idicahle to other licensed traife and businesses. (p) Sco irvf\\^. 114. Ex. R82. ('onii>;irt' tliis lif*' with (t) /7(.ir»/ii .tw,..i.\n'- (r) Si-e 20 & 21 Vict. c. 49, §v' 4, C.i. 8.-.7, an.l .'. •,'. !'■. I' "'■"■^ 5 & 12, and the Companies act, 1H(]2, vcisinf,' 4 il'. ;U.'i. '""['■irc (;,y.,t II, CONSEQUENCES OF ILT-r.C.AMTY. 139 Rk. I. Cliai). '.. Sect. 2. SECTION II.-CON."^RgnKNTIv^ OF IIJiEOALITY. Ifa (ompniiv, wlion it is fonnt'd, will be ilU'gal, iiiiy contnict Conf«v,iicnrofl ' of illc''iilitVi |to form it mast be illegal also. Upon tins f-rouud it wiis held lin /'/((vn/iVr v. Fdhncfs (h), that \\ bond for the pjiynioiit of liuoiu'V upon the fonniition by the obli<,'oo of an illegal company Iwas invalid. It (loi'S not, however, follow that because an agreement to Kir..t of ille . .,111 1 I •! • i' • ^''I'l'T on ttic fonii a coiupauy is illegal, those who subseril)C to its tonnation ri-htto romvpr caiiniit locover liack their subscriptions. If money is puid by ti'ljig'" *^'^''^' to 1). to lie applied by liim for sonic illegal purpose, it is Cdinpeteut for A. to require \\. to linnd back the money if lie B. lias not ali'>aily parted witli it (.;), and the illegal purpose bas not been carried out (//). Although, therefore, the snb- ^criliiis to an illegal company have not a right to an account pf tlie ilealings and transactions of that comiiany and of tlie piolits made tliereby (r), they have a right to have their sub- loiiptions retiinied ; and even though the moneys subscril»ed kavi' lioon laid mit in the jturchase of land and other things for kb purpose ot' the <'oinpany, the subscribers are entitle(l to pave that land and thor.e things reconverted into money, and i:\vc' it applied as far as it will go in payment of the debts id liabilities of the cuncern, and tlien in repayment of tlie ubMriptioiis. In such cases, no illegal contract is sought to ^c tiifoi: id ; on the contrary, the continuance of what is llfj^al is sought to be prevented. In .S/ii/i/inv/ v. O.rrnionl (it), a company was started for •^'"''""'' f"^*" p'.kniu' nnnes in Hra/.il. The imnnbers subscribed eacdi a si,ppi..ir.l v. I'xiiiiior I. (n .") Bin;,'. -24^ ; 10]}. & ('. R2(!; W 1 <'l. .*v Fill. .T.». See, also, ril'i'iM.s V. ,/..„,,«, .•) B. & C. lOH. \(.i) Sii' r,i,,/„r V. bwlfi, \i Kii.,t, I; Vannj v. Hidmiin, .'. ('. 1',. fl; I>i'j48 ; luid the cases in tlic la.st iKiti'. (:) See Hurviij v. CtdUtt, \'> Siiu. .'132. Compaie the Ciisos in the next nott'. (»i) Shfpihiril V. Oxfiifofd, 1 K. & 422; HuuiiHlm v. U'uhh, 1 Q. .1. 41)1. .See, t..,., Unit v. MixiUifi.r, ^' IhO; T„ylor V. Itowas, \\>. ih. <)8 ; Sharp V. Taylor, 2 Ph. HOl ; '1. Cniiipare (liy.il lUrlin Steam- Sijinrs v. Hwjhes, <) Ei, V. ,s7rH7»i'//, really illegal, they niii- n- i I 140 IM.ECi.VI, COMPANIKS. Rk. I. Cha].. 5. ccrtniii sum and rocoivod i\ sort »>f scrip ccrtificnto siioiifvin^ (1,^. mnubor «>f sluircs to which ciicli wns cntitlrd. Mini- buililiiij^s, i)h\iit, and slinrcs \vcrt> houi;ht, and at a moitin" f the suhscrihcrs the (U'fcndiiiit and another were apiiointod snl, dirt'ctors and trustees of lh»' property of the nssociatiDii. Ji.v putes havin}4 arisen, a bill was filed aj^ainst tlic iK Iciulaiit ihi> co-trustee being dead) by one i>t' the shareholders on behalf .f liiniself and the others for an aceonut of the monies receivvi and paid by the directors, and of the dt hts of tjie ussociathi:. and for i)iiyment of tln)so debts ont of the iiss<'ts, iiiul i"r a ilivision of the profits anion;^ the sharehidders, ami I'diM:, injunction to prevent the delendant from >elIiiiL' tlic prupiiT, fsalps of sharps of an ill< vhI cuiiii>aiiy. an d for a reeeiver. It was contended that tli (■(ini]>iu:y wfc illejial, and that no relief ctudd be {,Mvt>n ; but it was laid tk; the delendant as trustee could not dispute the trust uinvliiiji he had accepted the ju'operty ; and a denun-ni' to tlic billKa> overruled and a receiver and nnuuiger was app^iiutO(h/ii. If a company is illej^al, shares in it cannnt ho ivniiiiiiseil, and contracts for the sales of such shares are thcnisilvd illegal. Therefore, a broker employed to luiy shans in sd illegal company cannot recover the price he may liavi imiiifr them fn>nj the person for whom he bought tlieiu (. i ; iinr 112 the i)uyer, if lit has paid the broker, and the shares liavc Ufn bought, ri'tover back any part of the money so paiil, iiltlioU|;li the broker may have been guilty of a fraudrdtiif ovenlmriie; But if the purchaser of the shares has paid the lnvktr fit | them, the brokt r cannot retain the money agaiii>t the siilfr Again, as a contrait for the sale of shares in an \l\&\ company is itself illegal, it fidlows that a pineluisir ul >ucli| shares, who nuiy have paid for them, caiuiot recover bacK Agiiii, if a ( lin rcs|iect of jixaniiile, an ilb CL'L'dinfjfs for a lilb><^al l();in soi j,anletl as iiiotUryiii}^ the mnend infni, p. 141, n 'te e. ]irejK)»itioii, tlint a court nf cfniity (<) i/<'«.7'/i.< v. I'llinr, .'i 1. i'j will not ajv-i't a ]>e;s,.ii to -el l.ark C.:)!). The ill.-ality in tlii«.K««| ])ro]>"i/.', 1 <'i>!"r- '^" See llrncktnl'ury v. Uradnihuri), t {r) HowuM \\ n'iU>n,\'''^^-^\ J. & W. 3!)1 ; r.rovet v. Uruin, 3 V. W. 185. See, also, .Yi>A"V' \ &J. l(i;j. <.W;., 5 E. & B. 099; Tm''.^\ (h) Cunijian' >>/./.< v. llouhm, 11 KUinU, 1 Bos. ."L V. 3, :in'l I'i''*| Ch. I). 170 ; ainl ntlitr eaHCs uoticeil l(i7. CONSEQI'EXCICS 01' ILLEOAMTY, 141 Imonpy if it should ultimately turn out that the company is no '*''• I- Chap. r.. Icomimnv at all, hut a project whieh has iuiletl (/). I ' •' _ . . . Actions, Ac, A";iiii, if a otMnpany is illegal it cannot maintain any action i.y comiwinies. iiii rcsi'Cit of any transaction tainted with ilh'^'ality. For Mxiuniile, an illoj,'al company cannot prove in liquidatioti pro* If (viiliiigK for a deht due to it («/), nor can tiie trustee of an ^illti^nl l'i:m society recover on promissory notes given hy the |y^ li 11 owing memhers to secure the repayment of the money Ihiiiviuiocd to them hy the society (h). .\"iiiii, us no Court will lend its assistance towards carrvinrj iout an illegal transaction, a memher of an illegal association vlii(.'h is regulated hy a trust deed cannot maintain an action have the trusts administered hy the Court nor compel the rustecs to pay damages for any hreach of trust (»'). An illegal company cannot he wound up hy the Court (A), Winding up. fexcept perhaps at the instance of a creditor ignorant of its illegality (/). lUit if the company is legal, the mere fact that It may have engaged in some illegal transaction and sustained (oss dues not exclude contrihution amongst the memhers in Respect of such loss (m). Before (putting the suhjcct of the consequences (jf tlu' ille- Inlictment. tality of a eomi)any, the risk of criminal prosecution might to be ineutioued. I'ersons engaged in an illegal husiness are liiilile, whether incorporated or not, to he i)unislied crimi- nally (h) ; and even where the ohjeet of a company is not (/) Knnpsun v. l^uumUrn, 4 Bing. 5. i'j) Ej jHtrte Dny, 1 C'li. 1 ). (J9i>. Ooniiwrii Ax purte Poppldon, 14 B. D. 371), wlii-re ii conijiany ifti'i- ri'i,'istrali(iii Hiu'il in rfspcct of :i'.'ii-8 \vlii(h ii( riirioti lit lore. h) Shau-v. Ilntno),, 11 g. H. j). '>■'> : Jcnniuii^ v. Hnvimouil, S) i). . 1>. t2:i. (0 (MUy V. ]!rnmie, I TJall & Hca. m-, Kf purl,' Malher, H Vfs. 373 ; Pi/'.vsv. l!eaiU, 11 (.'h. 1). 170. In mitli V. AmUrson, 15 Cli. 1). 247, TiU liut (leoiiiion so far iis it declared tlie assofiutioii iu ,'al Wiw disapproved. Had it lietii .Ilt'gal tlie decision wmiM have been correct. {k) I'uihtou- Total Loss Assoc, '20 Cli. 1). 137. (0 See iii/ni, book iv., c. 1 , § 2. ini) I.Ditijirortli'g Kx. case, 1 l)e G. F. & .!. 17, atliniiiii;,' S. C Johns. 4(J.j. See I'artn. lo3, et sfq. and xn/ra, book iii., c. 2, § 3, and book iv., c. 1, § II. (ti) See the title Conspiracy in RuH.sell on Crimes, oiid Archbold's Criminal Law. 142 Uk. I. CLttj' Sect. -2. IJ.LKOAL COMPANIES. illogal, (liiTctois aiul others will do well to Idir in luiml, tlui if tboy wilfully violnto the provisions of an act of I'ailianient they are in strict law guilty of a misdenieaiiur and linblo to Ic indicted accordingly (o). (o) Soe Loixl CanipbcH's obsorvn- O. F. & J. 31. A» to issuing Irauiiii. tions iu Lomjnorih'' s Ex. ruse, 1 Do Knt prosptctiises, Ac, seeflii(f,p,j;. OF THE RlHir Pk:^hral puixcin IJ DOfTUlNKS Ol' AOKNCY. 143 BOOK II. )F THE KKillTS AND OHLIUATIOX.S OK COMPANIES AS RKC.ARDS NON-MKMHKUS. CHAPTER I. lENEIlAL I'llIXCirLKS OF A(iE.\cy AS APPLIKD TO COMPANIES IN THE COURSE OF FORMATION. ;SK0TION I.-or Till' LIAl'.ILITIES OF l-ROMOTER-S AND SURSCUIllEUS FOR THE ACTS OF EACH OTHER. It was formerly held tluit persons eiigiigtul in establishing Hk. II. Chap. 1. fcouipanics were partners ; but this doctrine is clearly not law - ' ' ' — It the present duy (it). Associations for forming partnerships, it beiiifj partnerships, it follows that persons who hohl them- ^tlvis out as uienibcrs of such associations do not thereby huU tluuiselves out as partners, either with each other or with ^luir co-memLiers. From this it resiUts further that, in order Jiat a porsuu en^^aged with otliers in forming a company may be* liable for their acts, he nuist have authorised them to do pilose acts as his agent, or have ratified such acts. The autho- ity conferred may be general or special ; but unless it is held -wlikh it is not [li), — tluit the pursuit of a common object by persons in concert gives each an authority to act as the agent |)f till' others in whatever he thinks tends to the attainment of hat object, it nui>t be held that uo one is liable for the acts of (i) I'urtn. 23, where Holmes v. are expluineil. I'l/inii.-'. 1 B, & C. "i ; Ltic(t:> V. (/>) Hue, in addition to the cases ^""k \ Man. & V,v. 117; and cited U-low, y/mtm/ v. Lm/, C. B. ti'iouff V. /.„m/y,f, I,-, M. ,<: \v, 4M», 1 j7. Ml «k. II. CliAi.. 1. Seel.1. SiilM«rril>rr< iii't liaMc for .•icts of jiniiuutere. Promofpr* of ces of liountr v. Frct'th (c), DicLitison \\ Valpjui] iind /•'(*.»• V. I'li/ton (ct, me distinct authorities fir tlic jjivposj, tion tl)at tlie aUottees of shares in an luifonned cuniiiiinv are not, as such, liahle for the !it distinctly hiid (hnvn hy tlic (\mitil I''.xehe(iuor in /uw/;/.// v. I.niiM and H///'/ v. //"/'//iH.f o;), wlikli were actions hroufjht hy advertising ajjents and iimp makers npiinst members of the provisional connnitteis of two niilwav eontpanies. In each of these eases prospectuses an 1 a(herti>e' menta had been issued hy the provisional conniiitito, and tin name of the defendant, as a member of the ctiininiUtc. w;i> therein announced t<> the i)ublic. In each case tlu' plaintiff had been directly employed by the solicitor tn tlic committie, and in neither case had the defendant authoiised lii'< dvditt' be pledged to any one, excejU so fur as his hciuji a imiiilitr ti the conunittee, and knt>\vin}^ what was f^oin^' on, was U k regarded as conferring an authority to that ethct. In both cases the jury found verdicts for the plaintitVs. In lioth, Imt- ever, the Court granted new trials, and (in a judpniut vA\ worthy of attentive jierusal) it was distinctly laid down, that the mendnrs of pn)visii>nal committees are not partners; tint they are not even primd farie each other's agents; andtliat, in order to render any member liable for the acts of the otlarNit is incumbent ujton those who assert that such liubility tjcistf. to prove, to the satisfactitjn of a jury, the e.xisttnn ci an authority enumating from the member in (piestion to tlieotkri to bind !nm. At the saiue time it was us distinctly laid ilow (0 B. & C. G32. (. (/) IVMHi v. Ar.iyll,V, Miiii.& Gr. 92*« ; Hamilton v. Smith, 5 Jur. N. S. 32 ; Hutton v. Thumjiaon, 3 II. L. (.". liU ; ]:rijht V. //««*iii 3G8. (;/) Hutli in ITi M. "Sl W. 51:. ('..nilKUe M'liUid v. .U.irs/wi.' 1« C. B. N. S. 387, and 17 il', ^^- MAniUTV 01 I'llOMOTEUS FOH ACTS OV KACH OTIIIilt. Hi timt a •'oiienil atitliority, cont'crrcd l»y a (Icfi'iidiiiit on Iiis co- isk. II. (;iiai.. l (1 sulHcuMit to muke - oiiuiiittoe iiifii or ftny oIIkt piTBon, an fthiirrtctsliis, ini^'litbo properly inferred from piililic imnonnre- Swt. 1. ■Ulrlll mill that a spec ial iiutlioritv for ciicli act was hv no liufaus cbst iitial to render Iiiin liable for it (/(). iJiit no sueh d from the nii'vc :in!!ou!icc- [gt'iicnil aiitliority is to be assunn [nitiit that several persons are actinj^ toj^etlier, and i iideavonrin{» to <,'et up a coinpany. riic priiuiiiles laid down above have been since constantly ^''"'"'""'^ "f ]iriPvi.MH)n,»i or e 111 iii;i;.'iiij; roin- iiiitt. biMvi'iiist'd and acted upon, as will be seen by reference to th [nniiiiiiius cases cited below, in many of which the defendant |wa< ii uiiiulicr, not only of a provisional committee, but of a |niiiiiiit.'inf,' ((inniiittee also (<)• The appointment, by a pro- viMitiinl comnnttee, of a nianaj^dng committee, docs not per hi; IniuKi' till, nicmbers of the former liable for the acts of the |lattcr(A). It follows from the same principle that the acts, statements, Acu of nnc nn RinUetters ot one member ot a connnittee formed tor gettinj^ the utliois. iiili a company, cannot i)rejtidice any other member, unless the fir^t (.an be shown to be tiie a^ent of the last bv some other ciivmustaiico than tluir connnon object ; nor is the receipt of liposits by one member ecjuivalent to a receipt of them by the Dtlursi/). ('') See, accordiiiL'ly, CdIUhijivdoi^ 2 McQu. 4S)9 ; Il'iiiiit' v. Cldrkr, 5 |v. Ikrkdoj, 1;> V. 1!. N. S. \4:> ; E.\. 2!»2 ; //.// v. Fnuiri.i, 1) ( '. & P. vt'hfk V. Manhall, Itj ih. ;i87, GU ; Kerri,hie v. H(.(!;>. ■ ^ \t g. r,. itJl, and Xeu-ton v. (k) Owke v. Tonkin, i) l,>. P.. [YM ; li'f'luifl, ih. ui'), iis to ini.staken U'illuintu v. I'iiftl, -2 K\.-2ol ; Ihtic immuu- „f liability. Sco as to son v. Morrison, 5 Ka. ("a. &2. oiitribiition ainony.^t iiroinotors, (I) See liumsiile v. IhujnU, 3 E.v. i)s.iwn, 1 .Jo. & l,at. 571. •J-24 ; Rennie v. l/'yiui, 4 K.\. GUI ; (') ^.'u/.;/ V. Maomlaij, 13 g. H. /raf.s-od v. Charlawmf, 1-2 g. B. 856; p;B'irh(i\:St,u>l,:\V.]\.'MG; Dronet v. 7'.(i//<)r, KJ ('. B. (571. ft'i'ii- V, U'.inn, 4 Kx. G91 ; Ne- Coiupr.re Ilennie v. Clarb, 5 Ex. ^Nsv. }Iuida:nsh,dl, IG C. B. 2^; /VnV/; V. i.Vj/Hi./,/s 1 C. i;. N. s. 387, tuul 17 ib. 829. ■^■'•21: McKu'iiu V. Ciimpbell, 11 r. itk. n. ci.«i.. Sect. 'J. l>OCTI!INi;S or AdENtY, - SKCTION II.— OP TIIK LIAIIIMTIKS (>K roMl'AMKS Toll THE Af.T^ i.p l.ii^)f CiMniuuiifn fur iwtu of llioir lirom«)ti'i!". Will Tiir.iii riioMorKKs. nsi)«'c-t t(» foinimiiu's, tlio ^'ciu nil |)nii(i[ilt' is il lial ii<» iiu'IuIm r of an uniiicorpomti'd comimiiy is liull, to iidH- iiu'iubers for nets tlono bi'fon' In- In cmiH' a !iuiiil)(r, uiiliss Le lias riMulintl liiiiisclf litililo lor tluni l»v soiiif cuntiact bi liim ami tlioiium). As ri'pmls iiicorporaUd ies, it is ohvious lliat llicy can »1() no act nor iiavc any ii^tut Ui^K tiioy oxist tluMusclvos : wlu-noi' it follows that an iiicoipornteil company is ni>t. lialde for tlio acts and <.'nt^a<,'i'iM(iits nt' its pro- motors, unless it is madf so hy its ehartt-r, act of Parlmnitiit, or (locd (if st'ttliuu'nt, or nnh's.s it Inis bii oiut.' so by wlutii luis ilon«' since its fonnatioii [n). When a comjiany is f.irnud liy net of I'lirlianitiit, the sub- scribers nn' usually bound by the terms of the act obtained ly the promoters of the company ((/) ; and if that act says tlia! the company is to be liable for debts and liabilities inciimd before its formation, of course it will be so liaMc, aiultlieonij question which can arise in such a case is as to tin' tiiic t>n- struction of the act, and the remedy upon it. Tiie Coiiii)aiiir Clauses Consolidation act renders companies govurntMl by it liable foi the expenses of obtaining their special uct(;'i. Suiuti.ry .Itlit^. The statutory tdili;.;at ion thus imposed is a leyal obli;,'iitwii enforceable (before tlu' Judicature acts) by an action ofiUUi/i; and such action C()uld be sustaiiu'd, althou''h the iijaiiitilf mj Where lialiility i» iiii|K>s('y coii)>titiiti(in uf comjuitiy. a nu nil )cr o ftl: e company (r). Tin. Ill t'l Mil'. 'J"he ci>mmon form of cnaotment which imposes the obk*' force ii. tion usually leaves in doubt the proper person to out This jtoint, however, was settled by ]i'ii(itt v. Mdi"} Board »J Works {h) ', it was there (in effect) dccidetl that only •M'n i.i.Miii.n V (m) Partn. 201, tl s< Viet. e. HI, § (>■> ; i' * As to the clTeet of incorpuratiou iu 26 Vict, c. 121, § 3, d *'V- dis'' vij-ional coiitraclfi lor the purchaw kemuj Jiuil. Co.,'.> (^■^^■■''■^*'' of hiinln liy the iirouiottTH of rail- (1) tWn/rn v. t'VH«i(/ ''fWf''^' woy compauicH, »mo :i7 & 28 Vict Ti i5iiiK. N. C. 2.')3. e. 121, § 3. («) 11 C. 15. N. ^ "^*- MAIIII.ITV <•! ((tMI'ANir.S FOIl Ar example, s«)li('ititr.s or parlia- [liiiiitiU'V nj^i'iits Nvlio have thus aeted, and who have not been Miiiployeil by other peopb' who are liiiide to them, can sut; the Cdiiipiiny on such cluuses (/) ; bnt solieilors or pai'liamentary i"iiits who have been employed by the promoters ol' the com- piiiiy's act, iind who are entitled to bo paid by tliem, cannot km the coniiiany on such ehmses (/<). It lias also been decided that a person who' has agreed with le luomoters of a company's bill in Parliament to work for (lotlmiL; and not to charge the company for his services, t sne the company for those services, although the ei»ni- t. 'J. kaiiiiK ■A itii (I such ih ■ferred to (.i lausc as is ner lj.'ain. iiot\vitlistan iiuiinsi>tt'iit with representations nnidc to Parliament ad iiuhicing it to pass the bill (c). Apiiii, a ('oiiipuny's artitdes of association or deed of settle- A.i(.|pti.in i.y tlio ^eiit ..lily allrrt the iiiciiibers inter ne or the jtarties t.. the ''"'"'""'■''• ecil, luid a clause adopting an agreement made by the pro- 1.1 ilucs not of itsilf amt>unt to n contract on which the puiliaiiv can be siinl by a person with whom the eoini)aiiy has Dt, ill l';itt, tiitirud int.) an agreement (il(, note ((y) ; fiV Tillfunl, li !<: J. &Sm.. •,!!». 11. A.h/ Tivmnaiis Co., 12 Cii. [3!:; ; H>» v. Metrop. Hmnl of »-i', UC. B. N. S. T-H; W, ;/»,•.<,• »"''-■"!/ '-'0., \\. X. Ih88, ^y.i. nf-'i'MSta(i,mAct, 20 Ec|. 1!)7, tot ooiisisti'iit witli thisc cases. f» i'.iri'ii V. UdMc Hail, i ',-,., h. [1 t.x. U. 01)stTVi' tliat the ttTins he a).'ncin.Mit w.ro a.lmilteil by I demurnr. >) '-"'' c/ ahrewAurij \, Nortli st.ijf. l;,til. Co. 1 Kii. f.i»;j, noiicc.l iufru, ]>. l.")H. (;) Sjiiu-kiiKtn v. Lnttimon; 3 Uiff. IG. («) Howard v. I't(t>-nt Jviirij Co., 38 Oil. 1). 1 :.(! ; Knipreg/i Kiujineef- iuii Co., KJ I'll. I). 125 ; North- uinlierlniid Areniie 7/«^7 ( 'o., 33 Ch. D. 1(5; Uotherltam Alum, tfr. , Co., '25 Ch. D. 103; M-lhado v. Porto, Atf 8. ^"'" Ul.f'*'"*'' ^" ''*' '** ^ nu'iiibtr iif thf coinniuiy makes no (liiT»nii(o(M. But such 11 claiiso iiiiiy civnto ii trust for tlu' pliiintitr wliich lu oan nifoiTo r) ; liiid if tho oluuse entitles tln' pi'tinuiterswith wliom the npeonirntwns made to be inihiiinifud n^'aiiist tin' dainiif the plaint itV he enn sue them nnd they can Inin^' in tlif uui. pnnv ns third parties [ih. The cironnistance thiit a company has had the Wiiefit of ar, Mf,'re«,'UU'nt entered into by its proiutttt IS is u,>\ of itsilf suffi- cient to render the company lialde to bt; sued iipdu itu', 'I'litre njny, however, be cases in which it may hv iiuijuitaHt to allow a comi>any to hold and enjoy pii.pcrty ilis(lian;tii ('.iiiiimny taking till' Im Ill-lit i.f tlic ik^rvi'Uu'iit. Onlinnry nile in other com-h. from those ohli^'alions whid. were contracted bv the iiruiiintir- who enaldid the company to aeipiire it (./'). Hut in the absence of Hpei'ial circumstances, such as tlk* above alliideil to, a company is not liable for w lint uiiu k biin done by its pronmters. Thus, it was IkM llmt a com- pany formed under the repealed act, 7 iV 8 N'ict. c 110, wiisKt liable to pay for the services of apents eiiiplnvnl li\it. 1 : Kl'ii V. I'ofilire Am. '",,., L. 1{. 1 Kx. 1). 2u & Hs, in wliich § 16 f»f the ConiiMinii's act, 1862, i.-i con-*iiliri'(l ; and see Jrhal BuUrr ContoU, 38 C'li. 1). -12. (c) See Tuitfhe v. Metropolitan Hail. Co., 6 CJi. «71 ; 7Vrr,// v. lluttoii, -1 H. T.. (', 10; Ha. 1(»2 ; ll'ilkini v. Jtuehiick, 4 Dn-w. 281 ; Ift/pkimon'» cajir,7 l)e (I. >I. & (}. 193; ^'.lu/i/ V. (Jaiidy, 30 ch, D. 67, jxir Cot- ton, L.J. (t throe notes ua to the riglits of the plaintitr against the company. (f) See the cas^ts in note (<(), and Ennit v. Wed t'Uirc Hail. Co., 15 L. H., Ir. ISO, where iiroiiiotersscnfli! ti) niakf the company iiayintiMm money Korrowiil in opler t" nw the UHmil PailianientarydcjO!.: (/) See infra, p. 1 4 H, an J c. 5. (y) HtUchi.. i7.) Payne v. -V. >'- "'"« •^; 10 Ex. 2s3; ('"»" "- /-«'"'• '^^ I Lancashirr F •' /.'-r. 'U, 12 (^^ N. S. m\. Thew (M.-u* tiirnt*! ;« 7& 8 Vict. c. 110, §^i3\i5,»iK which, see also, Taylor ^.Cri'^\ C.a* Co., 10 E.X. 28.Snote;r^'''| rcM., 2Sim. N. S. l;;(i;i-¥'* 1 ih. 248. TerrrlU f j III rftsos of t jliablo on the d Itlit' ronipiiiiy. ^ jcannot ratity a c Icxistcnoo (A). / [til (io what its lolivionsly ho eiit( iiiito, nnd if iint liis appears to i V iirrat ('('iitra ri',i;istt'red luider ipMV the waives of IcHiiipaMy to he Ic'iupany when fc [till IV were other illic ronipany had pas no evidcMce i inrticlcs of nssoci |lli(' manager, tlir Isunl for appear-i 1 to tho rogistratio lis sonio ohsciu'ity Tlu' (lilVu'ulty ( ;iiiir promoters h Ibiit wiure a conn |uiiiltr nn nfrreonie Btmug tendcn;-y I lAIUUTV Ol COMrASIKS lOU ACTB or mOMOTKHR, H9 III nises of this descriptittn llio promotors tlninHclvos nrc ^^ "• '^*">P' !• I • 1 « 1 • 1 Sect. "J. Iliald' I'll tilt' (•'■iitmctH cnttTotl mto by tlii'iiisclvj's (»), hut not I ,, Ml 1 1 r» Wliv cnmpftnioii Itlif coiiipiiiiy- MoiTovor, as will Itp seen luTfrtttcr. a cunipiinv im n-.t iM.un.i Cftiiiii't ratify ii cniitrart iiiiul.' l.y its proinot.TH hdoro it.H own [■,),|J"j,r*^n",'tor,. Icxi^ti'iu't' (/•)• -^^ ''"' >^"»i" tinu', an a^'rooincnt liy a company [til (!() wlmi its promoters have ; udortukon it sliull do, nmy lolivioiisly 1)0 (Miterod into, and Kn
  • iippfurs to liavp boon the truo ratio ilfcidemli in liroiniinij lir.iwninK i>. W' I .»■ • yi /!> • 1 • 1 liri'.it, ('i>ntri\l [v V (iwtt (cntrttl Mniiiiif ( oinixtui/ {D, in wliicli a <'"iiipiiny m,„j„^,;,„„. I^'i -isterod undor tlio Conipanios act of iHoCi was htld lialdc tol""'* hiav tilt' witt^is (if n person appointed hy the iirouioters of tho |c<'iii|miiy ttt 111' tlu! ujunaf^cr of tho company's works. TIic et'inimiiy when ftirnu'd retained the mftnaj,'er in its srrvicc, ainl tlidv wore titlur circinnstiinccs warnintin;,' the inftiviicf that ill' ((impiuiy luul ai'ptiiiitcd liim its mana<,'cr, althou;,'li tlicn' MIS no cviiitnco of any fttnnal aiii»ointmcnt, as rcipiirod hy the [artit'lt> of asstKiiitioii. 'I'he jury having fouml a vcnliit for Itlic miuingor, the Coiu't declined tti distinh it. Tin' salaiy JBUi il for apiii'iu's tti have hccn calciiliited frttm a pcrit.d aiitorinr ^0 the ro|,'istralioii of the company, hut uptm this point tiiorc some obscurity. riic (litl'iculty of holding' ctunpanies htunul by tho acts of F.ii'ility !a till ir proniottrs lias been felt as nnich in etpiity as at law (in); il)iit wluif a coiiipaiiy has actpiircd properly or exercised rij^hts iiuilernn ai/rct ineut entered into with its pronuiters, there is a stioiig tciulcn.'y to treat suih agreement as binding on the C'luity. "t iin]uacli;tlili'. Soc Tirrdl \. hnm.A \\. L. C. !o;»l. (0 K(l ]\. 477 ; liurton i/u(i/i 1/1*01, :! Car. »t K. 712 ; ('u//oi V. o'Motia, h: Hv\). :, Com. , (110. (/.) Sir ilic CiVits ill iKiti' 'ii),!mpra, I'l U'ih.111 V. Tuiuin.tu, (! Man. it jr. i,3tl ; Cum v. I.imhm anil .■timflurc Fire Insiir. Co., !:> (', N. S. GDI; K.-lner v. Ihtxter, '••I!. -' <'. 1'. 171; Scott v.Lord Khurii, i'l). i2.")5 ; SfnlUr v. I'ltrU SkiitiiKi liink Co., 7 Cli. I). 3(i8, !■* ovtM'iuli'il liy Littr tleiisioiis w- ft'rri'il til in noti' ("). (0 .'» H. I'v N. t^M. .Soc, also, I'illinnr v. I'illii-inr'i Atiii'Kliiintilf. {in) See tliu cjiscs in tlie ne.vt twn note-* ; nnd a.-» to cuntracts umltr seal, I'ickdriiii/ii rlaim, r> Cli. T):];"), ir)0 ixH-miNF.s or A(ir..s(V, i.r.vr'.ii.iTV 01 I ! • iniii'l Jiinriion U,»il«;«v ('■■;u- liuiiy. lik. n. *'i...i.. 1. ((jiiii'jiiiy, [irovitlrtl tilt' ii^^'nH'iiH'Ut is diic In wliich ilic cnmiiaii. Sect. 2< ' ' ^ ' '•' wtniltl Imvc licfii Ixnnid if llu> npH'cinoiit Imd Ixhii oiitml into (Ml its liilmlt' !Ut«>r its lormation (»">. 'I'lii' lt'i\(lin!i ca-. on this sul'jiM't is Ktlinirili^ v. Tlir (liduil .fuurtinn JliUif., Co. {(>), in wliioh an aprcomcnt betwoon the trusttts vi amn: l>iko roiid nnd tho proniolors of a rnilwa_v ('oni,iaiiy wasonterii into, to the (>tToc't that tho tnistoos should wiflnliMw tluiropp. sition to tho company's hill, and tliat tho coiiiitiniy slioulj, : its bill jiassod, oarry tho turnpiko road ovor a hriili,'(> of certiiii dinionsions. 'llio trustors \vith(how thfir opposition, the lii: passed, and tho conipany refused to perform tlio ngnomeni. .^n injunoti( i to restrain tho eompany iVoin violiitin;,' tb agrooinont was granted both by Vioo-Chanoollor Shadwollan' by Lord ("ottonhani, on ajipeal. Lord (,'ottenliani, in iL course of his jud|,Mnent, said : — L<>r<< idcntititMl, still it la clear that tlu' ci>m]>anyhave (iiicoeiJeilK.a;; are now in ptywii»n of, all that li'o projectors had IhI'chv; they aieeutiile to all tliiir ri^iht-', and suliji-'ct \n all their liahilitics. If .my uiieluiil is:- viUially j'rijti tiil i-nrh a scheme, and in ]'ri>>eriiti..ii nf it liiul ontcv- into arran^rt inents, and then had sold and a«si>,'nee otherwise. JSo hen", as the company stand in the p)a<'e of the projati they cannot repudiate airtingementM into which such projrclurshiuUDieM th/ij cuinio* (xercigt the ]xnt\rs givn Inj I'urliameut to fuch jirojtcton in * orp-iratf ciijutcitij, nud at thr' .o»ition to their obtainititf such jmveri usu iri(AA« (m) This condition is essential. ChtMrr and llirkciihatd i.'m/. ' Kee Shrn'\',hur,iv. S'orth yiiffordshire \h. r.s, and !» Sim. iGl, altimii^ Hail. Co., 1 K.j. nyy, noticed infra, M. \ Cr. TT.I. l'onii.an' .l.'W' I>. ir,:i. North Midland liail.t'c.,\ Ka.Cx (f,) 1 M. v^ Cr. Cr)0, allirmin^' jat, where the t.rius of the a^ift- S. C. 7 Sim. AM. See, al.M., I'dn meat were h.ld insiitlicicul lo P'' V. The EnMrrn I'ountit* litdl. Co., elude the conii>any iMia doiiii* 1 Ra. Ca. 4'>2, ainl Slanlfii v. The was complainol i^f. Tlu'cadC of The End . save in lertain except* sbiiul the CDrjHiration, i thertfori' follmv that i [croatcJ liy cinitrart ( isuci'ci''!, aiiil allVi tiiiL: (control. What lii^lit \Tli'j"m'':rf uudn' the a lit hnd ken tvjrccl thai \Ciin the comjmiiij fjrr Iclairl'j of ojiini'jH that t Tho passMfros in fexpl.iiiK'd ill II sul)5 lEdirard'i v. (iratu lliiay he suppoi'tod. lenses is lint l)asi'(j Ibctwceii liiiii and tl Itho fiuiipaiiy olitiiii Icfrtaiii tri'iiis, it on |toliis prejudice in ■ lie propriotv id" Bud denied nioiv ^'oiniil that pei'Miii- hwiiy's net ,,t' I'ai-l Pialiilitics iidt disc aftci' its t'trniatimi has not been eivci ^eP'Miin;,' would a] ptr^l M>,,s', Mild i> ^efrards euntraets ,. |r. 77(.' Criind .Inn, pe iViiarileil as m, (/I; i!-'>-i,!i,d,ih V. .\/ Simiiiiihidii /,'„,7_ (•„ ?9ti,:;M. *'; '''ihihmiaii mill '->'■ Hill. (•„. V. 77,. Ufl'ih'h>iriih, -2 M,,, omoKi.r r.,„al I „. y MAHII.ITY or rOMPANIFS FOR ACTS OF moMOTMRS. 151 ITla'caseuf 77i'? A''('' Aoik^/h Jraterunrks v. lUiiky vrnt cited to pruvo tliat, I'.k. TI. Chap. 1. [save in lertaiu txcepfeJ cases, the a,i,'.'pt cf a <'(.)ri)<)r:vtion u\'dM, in onler to __^*^'- -• Ibiml the ccii|Mir;itioii, lie autlidri.sed by a power (-1' attorney ; Liit it, Ai^c^ not IthiTefori' I'olliiw tli.it coriioiations are not to lie airuited liy ••rop(Tty over wliiili they claim to exercise Icontrol. Wliat liglit liavo the company to meiMIe with the roa.1 at all / |17i»' /'i'i('t'''i' I""'"' '^"' '"'' .'/"'<' """"^ '■'!/'''.■ ''"' fx'fore tluit rujht xvns so ccmfirn'tl, lit had been (igree:l (hiiUhe ri'iht shoulil only be xtgni ni a ikirticitlttr )niinni:r. iCiiii the coiiijMiiii e.i(irise thr riyht icith)iit rtiinrd to such (Kjrefiiient ? I \lii(h '^^^' liW/nin/s V. (intnd Junction Iinilir(ti/ Co, was decided, and Iniav be suppoited. Ill faet, tlie v'v^ht of the i>laintitV in tlicst; jcitses is not liasid upon the notion that tht'fe is any eonttaet Ibetweeii liiiii iiiul the conijiany, but upon tlie priiieiple that as tlio comiiMiiy obtained the power to intertt'i'i> with hiiu upon IcH'taiu terms, it oiijiht not to be alhtwed to exerrisc its powers Itoliis prejiiili<'c in viohition olMliose terms. he pi'opiietv of this decision has, liowever, been (piestioiifd noui.t-s as to ttinl ileiiied nioiv than once in the House of Lords on the uiiul that por>oiis who take shares on the faith of a eom- Iwiiv's act of I'arhaiuent cainiot be justly subjected to any pialilities not (hsclosed tliefidn or contracted b}' the conipaiiy afttr its formation 7\ At the >aine time, the decision itself has not been overruled; and althou^di Lord ( 'olteidiain's ter Miiinjiwould apply to all contracts, wlietlier iillni rin-'i or pr.iiir.x, and i> open to (dijectioii on that account, yet as epmls cnutraets of tlu' latter tdass, tln> de(i>iou in i'.ilintnU llh' (inniil .htncthtii huiliiaii ( 'o, may, it is conceived, still re,L'ari|e(i as iiiiiinpeached {v). 'I'iiis view is supported hy ((> ''.•.vii/i(i/.//i wMtnduM.r iiwl »;.■)!; Sltiy\i-shiini v. .V. )7/i Shifnnl- Bii /'Mi.i A'.o7. r,., :< M. \ c,-. ,;,,>c /;,„■/_ ,;„ i j.;... Mil, iii/m, v, /iSfio I'nstui, V. I.:-,;,.,.,! ,n,.l {r\ See /.V.//o;v/ A'.oV. r„. v. .SV.ni/.y. ia<"h-iH.iilMmr Uoiiii>iiiy. C.-j.^os to which y^l»!»riis r. (intmi .liiiii'tii'ii Itiiilw.-iy i'(iii- jkiiiy ilocs nut ai.i'iy. J-ool, \'\. Hiill- way Cuuii'.iiy, Ai.TP', iiicuU' wliirh arc ultm rirtt. the judflinent of the Lords Jn^ticos in Willi, huh v. 7'/;, ,(;. GeDrgc's Ilnrhour Co. {a). TIumv llic ]n*oiiio(crs of a laihm company hnd ontorod into an ai^n'ciiu ut with an "wiii r ,,1' Liuii tliroupli which tho proposed railway was to pnvs, |',,i- t),,, .,u, chasi' of lii.s land on certain terms. Tho himlowin r, wliom to tluit time had ojjposed tht> scheme, agreed to willidniw aiiii he accoulingly did with(h'aw liis o|>position. '1 lie (iimpam obtained its act, took the land in unL'stion, hut dtiliiad tn abide by the terms of the contract of sale ; it ha I, linwcver ?, far recognised that Contract, that it had allowed iiiii;,'iiiont it an action for its breach to l.c cntcnd np atiaihst itself. Thi> recognition of the contract was held sulVKlciit \o ivii'lirit binding on the conipniiy, whatever might have Ikch thr ,,>, lind there been no sueli recognition. It folli)Ws from the principle on which 7'.' J«(;r'/s v. TlKUmi Junctinu Jiailwiiy Co. was decided, that if the iiimiiotcrs ofi company enter into nn agreement with a ptrson, ami the cii> pany, after its fornnition, does not exercise its powers tula- prtjudice, he can no more enforce the agreement npiiiijt fa- company on eijnitable than on legal grounds. Tliis wns a:i that was really decided l)y the House of Lord.-^ iii/'ps'iv. Liverpool, Miiuchrsti'r, i(c., lliiiltidi/ Co. {IK 'I'lirif tin ct. pany did not take the pluintilV's land, and wa-> tin rtfoie lielJ not bound to pay for it, althoui:h the promoters luiil iiLToh pay him a large sum for his land if he witlniitw lii> i|i • sition to their bill, which he did. 'I'he plaiiititV liml li'tk. but the agreement to rely upon, and evt n accdiiliiii: i Kduitrdx V. 'J'hc (Iritml Junctinu llailutiii <'"., this alui; ■ nut suflicient {'/). Again, if the contract of the promoters is one ^\lml^v"''"" be ultra tires if entep'd into by the company aftir its Itrnii tion, such contract, even if attempted to lie ratititd by ttt company wlun formed, cannot hind the conipany. \ H. L. C". GO.'., atlinniii^^ 17 .MiKjislrah^ '/ //'/f/if/'H';',-^' IJeuv. 114. Se'" the saiiie ca-e on .iiueli, 3!ll. ilciiiurrer, I Sim. N. S. .'.^'(i. ],IAniMTY OK COMPAMKS I'OR ACTS oF rilOMoTI.lW. 153 i company, ^vluu fm-med, shall apply its funds to purposes for I'-k. H. Hup. i. Uiiicli tlityaro not subscribed, cloarly do jiot bind tbo company. '— — [Nor can the principle of Kdirnnh v. 'lln- Ci'nnnl ./inirtinii Hail- \kplit'«i to a<'re('nients of this description. In 'I'lic Shrowsi.nry r. I V 7 I • ») I Ninth SlatTord- ]'.'(;•/ ('/■ Shrewshtin/ v. .V'>/7/( StdJiDnishtrc iKulirui/ ( o. (.;■), an shire HaiUay [ n"R'cment was entered into tirst by the promoters of a railway ""'i'-'"^- I tmiipanv, and afterwards by tin; company its(df, to pay a ])eer i £0,1100/. lor his countenance and sii[)port in obtaining,' the [ f.Mupany's act, and also to conipensatt; him for such land as jtlic company should take or injuriously affect. It was btdd t'.iat this a;,'ri'cnient was (////vMi'/vs and r.iubl not be enforced |aaain>t the company, although under it-> statutory powers it i t.Mik land hcloniil. Co., ih. ftS, nnd I'J ^im. 20 i, ;iii.l :j M, ,f ,■ ., ,. . ,. ^, olillusiti'iii to hill r,n.<. In tho lirsl ol these ca.se8 i,;'^.^^,,^,,,^,,,^ 1-Jo,o0<)/., ami in the latter 20,(KX)/., Were a^'ieeil to he jiuiil for the with- drawal of oi)]Hi.sitii)n to a bill, ami for eonipensation for the land wliieh ini^dit l)e taken and injnriously alfeited. It dofs not, however, follow that such aj^reeintfuts are in any other respeots ille^'al ; and it seems that they are not, if t! ■ person withdrawiii;,' his opposition is personally inteivsted in opposing,' the bill. See Sintpfon v. /.on/ ll'iinlnt, t) CI. & Fin. CI ; 10 A. & E. 7'J3 & 807 ; 3 M. & t'r. 1)7. ! i i:.i DOCTRI\i:S OF AGKNCy. Wlu tlii'i- till' c cliiirtcR'd I'oiiipii (iiipoworcil to SI jialiv of Sdliie (itli ;!-. rcu'iU'd.S till' (■ npplii'S to tlit'iii II ClIAITEU II. r.k. 11 Cliai) GEXF.RAL rRINTin.KS oF A(JKNi"Y AS APri,II-I> T<) (OMrA.MES APTKK TIIKIU FoHMATION-. Tin: oircumstiiiuo that ii joint-stock coinpmiy consists of Agrntu of com. larp> ami tliictuatiiif^ body of iiionibors, is itsdl' siiiVuie l>anio>i which lit t ' arc C mniiany n"t Ihuhi.I I'V tho nets of lit menil'cn'. Hiinios r. >;irt!;' furiuod. prevont the aiij'licatioii to companies of tlic ordiniirv ] shij) vulo, that tach nu luhor of a firm is its iiL,Mit, f .r tl. purpose of carrying on its hiisinoss. All l><■!Silll•^ dealing with companies arc siipposctl lo know this, ami lo know that tk mana\, in the House of Lords, is a <<0i>(\ ill l!" (Iiiiarv tratioii of the iloctriu" ihat a ci'nipany is not, like an or l»artner!>hip, resi)onsihK' for the acts of its niend)ers. In tlat ease a slnirehohler in a comjiany, who was also its siliiii and law agoiit, indued a person, hy false representations as' the tlourishiuf^ state of the company, to buy shares in it. li. purchastr bt iiifj; afterwards sued lor calls, relii d npon tlu'lm:i'. ns ft del'ence, and he also souolit to liave the tiuii.sfir ot ti:t shares to him cancelled. Hut it was held, that it wasnip'*''^ of the business of the ("impany's scdicitor to niakc an\ r jiv Keutations (»n its behalf as to its condition ; and that. altluUi::- he was himself a shareholder, his statenuiits uiic ii"t ti. statements of the contpany, he not boinj,', in his clKiriit' of shareholder, an a^'t nt of the company foi' any [nip ■ w hate ver (a) See Hulh-ij V. TTi*- I'lymnuth Icydalt^ ; /Innirs v /v„MW;,iH. GriuiUuij iiii't Jlakiu(i (' n iid C. i:»7 'inifiihri ,lj,' Flu Mill V. Siimr, '2 I,) '1 II. L (". I'.'T Burnett, ll iii'iind, iiio\i(lc( 01- .ippiuviit antlie till 111 lias had im i f" 'lings ('/). >!, (•"liipany is imt fi]-!' 'iiitniciit it' tl \i': ^»- burl (' BiP*'it ill Hiinic.! V /' "''S3 bin- X. (■ .\c surd by a \n\\>Vu' oiVictT, or a coiu- p puny of some otlicr description, is of no consoqiuMicc whatever I lis rr.'iinls the (luestion hero alhided to; the same reason applit'^ to them all [<■). SKCTIoN [, WHO AKK AfiHX'l^. 1. / iMVl•^);■.■^. The director^ then of a eonii'anv, and sueli other persons, if I'lrrrt-n. tlio . . ,. . iifji'iits (if the ly, as miiy he iiitiusted uith the management of its allans, e,„„,,an_v. are its only agdils ; and hy the acts of its directors n company Is 1)01111(1, pr(i\ided those acts ai'i' within the limits of their real or niipnriiit iiuthorily ; and provided the person ilealiiio with lluiii has had no iioUce nf tlu- irrefjiilaritv (if any) of their pro- Co hues s ('/]. Mi>reo\(i' the jiowtr nf directors to hind the lUlllV IS HO li>reo t all'. d 1 IV any irreun larit V ill tl leir own r.p' iiitmciit if the person dealiiif^ with them acted bntd lith' f siudi irreifiihiritv (<•) ; althoii'di stuh R!l 11 h th: without imtice o nlaiity may pr.vciit the company from enforcing' what liavr purported to do as agents of the company (,/ lit it I'V iin means ftdlows that each director is tlie I'.uent of Aots .Idu.! l.y jiauy. Spcukiiig gtMitrally, it is (dear that if a person L til] 'iins six iithfis to 1r; his agents jointly, he is not hound hy thi lets .if any live, fiuir, three, t foil, if the aff tluiii the irnptr iiiimlicr 111 lU rectors. Wo, O r one of them. Thert; toi'. li tlie afiairs of u company ari' entrusted to the nninage- nni less than a fixed numher of directors, it is vriiiid ffidit fail' iiiit liduiid hy the acts of a fewer numher. It has heeii Ifl'l. fir examph', that two out (d" several directors had no ' ^'i- l.ur.l ('ami.I.rH'H judfr- (e) County Li/f Ass. Co., r> Cli. aot in /;»,■„,•,! V, I'iunrll, -2 U. L. -2^8. 7^' '-^*. 'f •«"/■, and llniuuih v. (/) Hurdni Gulhj I „. v. Mcf.i.', iioti's [ij) ami 1^:) litdow. 15G iMi(Ti!iNEs or AnrN( V, Bk. II. Cli!\p. 2. jKuvcr l.> wuivo ii forfeiture (//), or to .illot sliaii > yln ; tl Sect. 1 liat four M.'xjorif 1 bofttl. ' out of fivo hiid no ])ower to couiproniise a lari^'c d. ht .liu tutlip t'onijuiny nnd to iiuleinnifv the debtor npaiiist <■( rtain bilhrif oxchnngo (') ; that six i>ut of ri<,'lit liad im iiowcr to Lin,! tlio Cduipauy to jiav for scrviees roiidorod iMusiiaiit to tluir order (/.) ; that I'our out of tivo lind no power t^ liiii; that iMtiee to one direetor did not iirtVct t lie coin. pnny (n) ; that instrnetions to sill huiil ijiviu to ;iii umti l\v one director nnd by the solieitor of a coiupMiiy, (muM ,i'!i'.tr •♦bout further evidence, be eonsidei'ed as liavin'' I \)M\ '.'IVili •;■. "''e eon)i)any (o) ; that oiic liquidator (>nt v{ tuiir C'lulil m iiinii the company by a bill {ji). lint it must not be supposed that the majority ! :> referred to above do not iijtply to such n ca^c. Delegation of I)ireetors being themselves agents, nve ]>niui'i t'lh'h nmU : tlelegate tiieir autlionty to one or more ot tluir ouii nuiii- ber iq) ; but in many companies, and in all uliii li ar.' i.'oVinitJ by Table A. in the schedule to the Companit s lut, 1> directors are authorised to delegate theii' powt r to a li->v, and even to one oidv irt, of themselves, and siuli ii maybe presumed if one or two director.s act for the ciiiip a matter incidental to its legitinnite business (■•<). i':'alioii ;iiiv in (j) Curd v. ' „„•, 1 C. H. N. S. I {h) IliimmVt rnsi, \ Ch. r)<51 ; coin- pan- K.r jxirte Smiih, Xt Cli. D. :>M>. (0 h'irlcv. I If II, Hi y. K 2IX>. (k) lirown v. Aiidrt'is. lU Jtir. a38. (/) RiiUrij v. I'lijtnoitth (iriiitliiiij Co., 2 Ex. 711. (in) Holt'n oisf, 2-2 Ilea v. -js ; Nicor» caj\ tlif chairinaii tn a int-itiiin of Hliare- iioidt'T^. /''!■/('.» Miiiiiui '',)., a ell, ). 51)3. (h) Kx i"iit' I'r-i''' /■ 'm't •1*" M'lhilvr of Kmiliinil, 7 I'll. I'll. (d) Miiodij v, l.'iiiJ. tmi frif A' than five uo lii'iu Words We I oii. iiiWoiw, sg. 1!, D. tN,-j. l.iliiif,' to eall.s wluTu tho court was I) As to ^.'iviiig notices to hold a^kid to .xft u-idc a jud^'UK-nt. iv'tiiigSMf sharclijKk'rs, i/(i?/>tf)i V. (y) l(i g. H. :iyO. i «iy'S,23Cli. IJ. 14; ofdiitctow, («)1G Ch. D. 681; »ee, aUu, I firtc Smith, -M Cli. I). 54(1. Ilowhnich Coal Co. v. Tai.jne, 5 11. ' '"'I'are L'rouw V. lu 7VuuJu,/, ;17 vS; N. 151; London mil S..u'lum ' '' ' Counti>:'i,ih-., l.audCo.,'AHh.\).2-S^. l.-jH i>ocTi!iNi:s or Aisr.NcY. IJk. II. riini.. •.. wliitlior nn not wliicli onj^'lit t.> lie done li\ n llmnl ,,f,\ Scot. 1. . . IS viilid wlii'ii (lono l>v the rciiuisitc miiiilx r Imt not at si li AoU lioiic bv ., * . , . 1 • ^ .liro.i,>iN l.u"t im ctiiip:. 1 licrc tcrtaiiilv is luitlionty for niiswiiin.f dn u'l'cturs licit I'V a lli.'aiii. tinii ill tlio iic''iitivc (d) ; niid us Itctwtiii tli •oard »' <'tiin|iaiiyaii(lanv (^tioniiu iiiiist hv proMiit. lirrsoii Imviiif^ notice of tin- inTj^'iilarity, tlinl answer is inobalilv corroft. lUit as hi'twccn the coiiipaiiy mid iicrsDiis liavincno iiotic*' of the invf^iilarity, tin- piciMmdcrancL' of authnritvisii! favour of holdiiij^ tlio I'tiiiipaiiy bound (h). Moreover, in unit r that a majority of person^ latHntata nicftinj,' may t'Xt'rrisf llio powers of a iik ttin^', tlic nitciin^' itsiif must not hv too small {r), nor siinininurd at t. iort n.-are (f a ireolirs" IwwiT to liiiiil tl ic coiii|iniiy. it commences at the datt' uf its formation <«r < if tlieir appoint- nieiit ; hilt tlie commencement uf that pnwer nmy be postpoueJ to a hiter jieiind ; and if it is, their previous aits will not W tlie company to a person dealiii<^ with them witii notice exprfv or im]ditd uf theii- waul of authority ('/). Apiiii in iviii,iniiir, with the Mineral jirinciples of at^ency, tln' direi tuis nt a iiiiit- stock company continue tn have imwer to hind it. not .hh as long as their appointment lasts, hut also as lun^' as its trniii- nation is unknown to those with whom they have Wtii acni- toUK-d to deal. I>ut this projiositioii must ho taken inoii- neetiuii with the rule that persons deulinj,' with cuuii'imiv; are deemed to have notice of the contents of coni]ianit.>'a(i< of rarliamen'. . charters, and registered deeds of settKimnt: and consecpiently, if it is souj^ht to mak< a Cdnipan) liablt fur the acts (h>ne hv its directors after their i.tiivment Iron: ((«) IluMuipiet v. Slmrtriilii'', 4 K.x. 699; li'Arnj v. Tavmr, <£-f., Hail, t'n., L. H. 2 E.X. L^jSjaud lij pnrkSmtth, 3!) (Ml. 1). T'lC. (Ii) Sei' Miihiiini V. Kiisl Ifiilij- ford Mininij <'„., ].. \l. T H. i-. 8'Arry v. Tnmiir, dr., h'ail. I'd., turned on a tiiliiiical rule of plcailing. Sec, further, the casen a« to irn-f,' cited i'/t/(<». (y) Londm and .<"\dhfrn Cm- titi /.<(/../ Co., .31 CIi. I). 2L'3;//l• /»■(K/^ Codl Cii. V. 7'ii/i/ni, 5 H. 4.^- l.M ; AV;«ir/-'iVorrix..)i,I)e(ies,;3y: and conijiarc York Tranmiiji 0>. v. M'lUnu-i, H Q. P.. D. fl'^.x (cr) KxpU Smith, :)'.iC\\.l^.^ Itron-ne v. La Triniilid, .37 Cli. D.L I (s for a eon (niiipany withii iciiic'd hy the c^ Jtnirrtlier heyoin llie persons em |lhuse who dealt Ihto the puwi ^ex>ts, irrej,'ularit fle:ilii)g with til. ^1' iiiitirity ill li 'I'tant on this In Swill, V. 77„ oiiipaiiy register. Ill (') 'Sec as tonotii'c (/) lionk ii., 1-. G, i(v) ^^<: infra, f. [i A(ii;NTS i>V COMPANIKS. ir,[) olliic, it iiiiust 1)L' usi'orttiiueil wlioflic r, upon tlic priiieipl.' I'-i- 'J; ,J'''''i'' -• nlludod t.i, tlido was or was not nutict' of the cessation of tlairiuillioiity to act lor the ronipuny («■). The extent to wliieh directors are agents of each otlier and liable fur ciuli others acts will be noticeil hereafti'r (f). •J. Aijenis uho urr not dircdnrs. The liiivctors of a conii)any ari' not necessarily its only .v_s fi.r n coniiJuny the authority of those persons to bind (.iiapuny within tlie scope of their employment cannot be tnied by tlu' company, unless — 1, their employment was iltiii,'i'th(r beyond the power of the directors; or unless, 2, 11 persons emidoyed have been appointed irregularly, and til M' who dealt with them had notice of the irregularity (/()• "\Miue the powir to appoint an agi-nt for a given puiposo ex. 4s, irregularity in its exercise is inmmterial to a person Ui dmg with the agent bond fide and without notice of the ^arii.ailiirity in his api»ointment. The fidlowing cases are ^miMirtant on this point. - \ \v. Smith V. The Hull Glass Company (j), it was held tliat a Smith .•. Hull |;toiiipniiy rerristered under 7 \ 8 Vict. c. 110, was liable to pay (ilas.s C'oinjKiny. b See as to notice, infni, § :i. ' ) l'")nk ii., e. (i, § 1. ( ^o: infra, J). ItJl, note (/). ' Sn- llniiira V. B'jHrne, 8 M. (S: W. 7u;3, iUid the oasea cited in the next few noterf. (0 8 C. B. 608, aiul ll ib. 897. I 100 DOCXniNLS OF AGKNCY. Ilk. II. rii.ii-. S*vt. 1. Authority inferrMl. Oilct r. TiitT Haiiwity Cuiu- liaiiy. Rrowning r. (ireat Ctnlntl Milling Coiu- l«ny. for g(ls ..nlfi-cd l)y persons in its t-niploy, un,! tlmt it was not iifci'ssary for tlu« pliiintifV l.i iirovo Unit tliose pirsdiis were iiulliorisiil liy tin- din-itors to order tlu- ^'oods in ,|uostiun, Miiulo. .1.. went fiu-lhcr tlmn this, mid liis jii(l;r the hroud propo.silion that ii cniiiiiMuy i-; Imhu,! by the nets of ju'rson.s who take upon theiiisilvo>, with tlie knowledge of the directors, to art for tlio coiiipmiv, piMviiM suelj persons net within the limits of their ii|>partiit authuiitv and tliat strangers dealing hofi,} j'uh- with mk li ihtsoiis, Iwve a right to assume that they have been duly appdintti] i/,), This view is in aecordatice with later aullhuitiis. '[\\\k\ company has been ludd bound by a verbal i "iitiart with tlie ehairman of directors, although a sealed eontrai t > oimtirsitnieil by three directors was required by the coininiiiy's ikii oi settlement (/) ; so by orders for repairs givm liy n stcretan instead of by the directors (/«) J so by an agntiiiciit t'lr tlie sale of land made by a company's manager wlui was alloweJ by the directors to make such contracts (h) ; su hv cliei]Uti drawn by tic facto but improjierly api)oiiited directors (ol. .\<;:iiii in GiU'H V. Tlic Tti[)' Jliuliciiif Vompany (/)\ it was lalii tlia; a railway company was liable for a tort eoiiiiuittod by one of its servants in the course of his employment, ultliou;.'li there was no proof, except that afforded by tlu- fu't of oiiiiiloyiuen;, that he was the servant of the company. ICven as between the agent himself and tlie coiiiiiaiiy, if tie direct •rs api )oint him and allow him to act as a''ciit uf lie company, and he does sv» act bond tide and williuut notice of any irregularity in his appointment, the coiii|iaiiy will In' liable to him for his salary altliougI> he nuiy not have bitii appomttfil {k) See 11 ('. 15. 1>:;7. Th-' other (m) Mlnrdx. /;..i(ni'-, IH'.B.N. jiulgcB rtflie I'-l- '!• C'l'- -'• ioiiipiiiiy ('/K These cases iiuist not Ik; coiifoundi'il with otiiors in which Lim't-; t.i mitho- ciinimiiies luive hceii held not hound hv nets (hnir hy their"*" ''^ iH"oiits when acting beyond the limitH set by tlic nature of tlieir [eini'loviiioiit (/■). SECTION II.— ALTIIOKITY OV AdKNTS (»K CdMrAXIKS. IhiviiiL'seen who nre to he eoiisitU-n a^'riits of ii eoniimny, Mmiis „f ihe .,.,., (liniti.i-. It is iieccssiiry to exiuiiine tlie hniits witliin w'.- h a company autli.iiity. IS iiiiswerahle tor tlieir a<'ts. A<,'enls cannot have a more Bxtriisive authority, than their principals can IcpiUy confer lipiiii tht'iii ; and this principle at once limits the authority of lla^tiits (if iiicor[)orated companies. The capacity of such Companies is itsilf limited, and they cannot he iej^ally hound by any acts df their directors or otVicers in which the companies tliiiiisijves are le;,'ally incompetent to en;j;age. J Jut as re^'ards btlur mutters, business camiot he carried on uidess the directors bf oiinpauies may be dealt with, on the assumption that they lavi' piiwcr to bind tlieir companies hy all >uch acts as can jpiirlv be said to be necessary for the purpose of carrying on |thcii logitiinate businesses in the way in which such businesses ilrt usually carried on by other people. Such power is con- ^leqiiciitly implied (s) in lavour of all persons dealing bond Jide, [{i. Ihowninj v. dmxt Caitrnl finin^j t'y., T) II. ,^c N. 85'>. In i tiiif ;m appoiutiiifiit under the 't 'hf cbiupauy wm not necori- ■ >^ee, ills,), TjUrnkU v. Fare- Jirick Co., L, R. 1 ('. V. G74. ,•■) See as to I'lomissory note.'*, mon's claim, 3G Cli. D. r)32 ; iw r buying simies, VartiuAl's cusr, i) ■ Wl ; i\> to policies of iusurunce Ic'il liy Wd\ agents, Linford v. "■'..;U l!r,iv. :iiil ; ii.s to iinlers si'tti"ii masltis fur sur^'ital lauue, Car V. MuHaitd Conntus Hail. Co., 3 Ex. -ifiS ; Walker v. limit WcsUrn lUil. Co., L. U. -1 E.\. 228 ; Btatenuuts nuule liy secretary, Inirmtt, IIoiircK cfc Co. v. Soiitli L'nul. Tntmwdij.f Co., 18 t^ li. D. 81a ; Htatenieuts by stilicitors aa to the flourishing,' cunditiou ot the com- jnuiy, liunien v. l\itn. (!68 ; Taunton v. Hoijal l)i.1)( IIMNT.S (>!• .\(ii;S( V. '"^ ''•'''''*''• '-' i>'»tl wiflhtiil iiotu'f «»f its iion-cxistfiicc. rintlicr ii i, (.,|,. — Iilislu'd tlmt wliat tilt' (lii't'CturH nf ii coinpiuiy Inivr |ihu,.i|„,|,| and do in the iiiiino of tlu> (■onipiiny iiiid on its bt'linlfi/i liimi, tho conipniiy, iiltliouj.'h tlu-y may not Imvc iictnl in the iiiiinii,r !!!"l'r!'r,wrn. l"-^'^''>-il"'> >'V tl'^' >a'»lations of tli." ron.pany. A .li>tiii.tio„„ rirfi and .-uu tliiis tiikfn l)it\v»'»n wliiit diifctovs liuvc no itowcr tii il till iiiim virrt, Imt i i i i i • i i ' irrt-Kiiiar. iMiil \vhnt llicy Muvo in)\v«.'r to do, providrd ccrtiun cmiil coniplu'd with; in uthcr words, bet wi'cn nets wliicli, iis n jfanl, the eoniiuiny, are alto^fiher ultra r/'ns niul tlinx whidi ^,1 iiittii linn hnt irie^Mdar ; ami wliilst it is luM that roin|i:iiiit, are not hound hy acts of the former ehiss, it is lulil tkl they may he houml hy acts of tlie hitter clus^ in t';iv,.iiri.fall persons (h'ahnf whicli they may he |.'iiiltv(ii , Ai-U «lUi(;ethcr ultra rirt*. 1. OfartH uhirli ((/•(• idtni liirii. With respect to tlmso nets which director^ liiivc iin-nvert) (h) at all, it nnist he home in mind that tnidiiij,' : ilar corporations which arc created for certain d»tiiiil> _ .« have no [^'renter capacity than is conferred iipcui tlitin liy their constitution (./ U 'I'hey exist for certain purposes, inorf or Im Well defined in the instrument incorporatiii;,' tliciii, Imt tliev exist for no other purposes; and a eorporatinii cnutnl foruiie ))urpose cannot lawfully do anything wliicli is f.ii(i>,'ii to tk jir.rpose for which alone it was created, ll", tlitivt'ore, itim be ])retlicated of any contract ent«'re-ir,itio!i-^"f '!'■'''* of tlte euMuin^ ]iiij,'eH a tn-atisc on ttiiJniiuuciluilcuri>onilii'"?isl»'''' tlip doftriiji' of idti'i riies \>y yewanl nut. Urice. ACTH Willi II AlU; ri.TlJA VIIU.S. i(;a Itliciii mill ■'nliiDUT itiilividmils (//). 'I'liis i>nnci|ilr n|ipHcH (o I'-K. If. »'H«. 2. ijdiiit stock coini'iniics. Hut then! is an impDrtiiiit ilin'irciicc [brt^iH'ii inrtii|)nr)iti'tl iiud iniiiicnrporatctl cnnipauu'.s, lor whilst lit is ciiin|iitt'iit lor <(// tlu- Nhaivliolil* th of an iiiiiiworporattMl • Icoiiiimny Id tli'));irt lioin the H},'ni.'iiu'iit ciitiriMl into hy caoli Uiili tilt' otliirs(;), it is not coinitt'tfiit lor all tli»« slnui'lioidcrs [ot'ii ciuniiaiiy incorporated ii.v rlnntcr oi' statute to do anytliinj,' [coiitrnrv tiuitlo ('(I. Nor tan a eorpoiatc laxly l)e estopped Iby ilttd or otherwise t'roui sliowiii},' that it had no power to do |tliiit wliicli it innports to have done (/)). Tilt' tiiii^litution ot a tt)ini>any as .settled by its (diarter, act row.rs ..f .li- [)l riirliiniii ut. ineniorantluin ot asst)eiHtion, or (IihmI oI «i'ttle- |,^. ti„, ,.,iiHti- IRiitiit, liiints, to a certain extent, the powers of its directors; """">"'' tl>o Ifor wliiiti'vcr it may or may not he coinpetent for all the share- iiuMti's to <1m, it certninly is not eoinpeteiit lor the tlirectors of (niii|iiiiiy to hinil it by eiiterini,' on its behalf into trans- Rcliiiiis not warrantetl by its ctuistitutiiui as settled for the liiii> lieiii",' (c). The directors of a company have authority to Jo uli ih vtr is necessary for the transaction of the company's |ef;iliiiintc liiisiness in the way in whitdi such husiiuss is SUiilly ciirricd on iiy other pet>plt' {'/), but tin y have im power (f(] Si't upon tills SulijtCt, I'nlli'fk (')iitracts, ll(», ,t .i.(/. ; All.-(,'ni. '.'...i' K.h-trr,,. I!,i!l. ('„., ."■ App. *^A. ,::!, an.l |i Ci,. |). .\\<.) ■ /,. „„,/ Mil. ir. Ituil. I'u. V. I'rin, II i). M|B. 1'. lsr>; inndon t'iiKiniiul A.<.n(.^s Yenlod V. lliver I)ee Co., 10 App. ;iH :5« ch. 1), ot:, h., ii). (174, M :W rii, i). iVU ; and tlie cust-a ^erre.1 to infra, nott-s (/) and {(j). iv to dcMliii<,'s with land, ami Jvnctiai, Cuiiul I'u. v. J'ltl;/, |Q. 1'-. 1I.-J73, and cases there citi-d. I to tlif consiijucnccs t»f a corpora- I takiii- sociuitifH whicli it oiij^-lit to t.iko, see ,1 ,,,M V. S. AuMni- |(.') I'artn. 4os ; lUudlmni Iknejit ■ V. I'onlif:, Ih-ouka d- U<>., id 1>. 901 {(i) SfC AMninj Ii-rn Uini»i Ifnil. '',.., 7 Ha. ll-l, and 2 M. it G. IIM ; and lliin>,ii\i.i If'iiilnck V, liivtr Ike Co., uhi .^luprit. {!>) See JiaroncHs ireiilock v. A'iiYr /'('' l-'i>., \i\ti mijirn ; K.r pitrti- Jratsou, 21 (i. H. I). 301 ; h'tnrtUk y.diV.at, 2 T. U. 169. (V.ini>arc U'ehh v. Cnmmi^diiHcrs nf llrrnt Bay, h. R. 5 Q. V>. G42, wiiere tlie lompany had jiDWi'i' to issiu' dehi-ntwifs, althoii^'h they ilid not piopeily exeaise tlie JiOWlT, ((•) Aiifihunj Itiiiliiinj I'tiiriitije Co, V. Uuh^, L. li. 7 II. I,' c..-,:?. («/) Smith V. 11 till Ulag.i Co., 8 C. IJ. tiGs ; Tauntdit v. Roynl Ins. Co., 2 Hem. & M. Wo. M 2 I!! 101 iHxiuiNEs (ir A(a:\cv, Bk. II. Chap. •2. t,, ,>nfi[n;^'t' ill ii rln'--. of biisint'ss for llic transaction nf Set. 'J Wlliii Cipiu-ily of tjr|>oratiuns. Ashl.i fiC. Hi.lM till' lonipauy was not foi-iiud ( tlic i'Mnacitio>^ o f trad iiii 111(1 Sllllll:ir 0.' porate bodies to Idiul tluinselves by (■■tuinicts. tli.ic is aa ai>pari'nt ditVort'iUH' ol opinion upon the l'Wll nss( rt 11 a contrary It is agreed on all hands that a corporation caiiiKit hiwluliv do that which its constitution does not expressly or iiaplkJI. warrant, 'liic ditVcrcnce ot" opinion, if tlnre n ally lio iiiiv,i> not as to that, but sinii>ly as to whether the act of iii.vqvra- lion is to be rej^arded as conferring nnliniilcil p.iwds except wliere the contrary can be shown ; or wlutlur allcL'od eoqv- rate powers are not rallier to be dciiit d unless tliey ciw k sliown to liave beiii conferred either I'Xpn ssly or by iiece-jan ini]dieati()n. 'I'lu' lornier is apparently the I'orrect view ^o I'nr ;is Miini- eipal and other corporations not created for any ckiiiK limittJ mniose are concerned { /") ; but the latter is siilniiitteJ tu It pari th !«' correct vnw witii respect to tradnig ami siiaihir eMrpont tions which are created for certain definite nur pose s o: iilvl 'J'hat .•^uch corporations cannot do that \Unrh tluireoii: tion dues not warrant admits of no doubt, titi;' and is coiU'l'.isirelj established by the decision oi the House of I.onls in .Is/'iWi lidiltidii Ciiiriii;!-' <'■>. \. lliihf (li) In that case it w;is licii nipanv formed and registered niider tlir I'^iui'iiiik^ that a eoiiipa ilkui:' act, lh(J2, tor contracting to supply materials for iii railways and to carry on the business of general toiitraitor!. was not bound bv a contract to make a railway, iiltliough » (f) The cases on tlii'< lua'l are excP8!«ively nunuroun, aiul will lie iioticeil lienufli r. (/; See tlif auUiulitiw cited, L. U. i> Ex. 'J02, ft ^q. {<)) The leading taws en this i»ub- jei.t urc Uaruneufi H-'enlvck v. hirt-r Ikr, Co., lo Apji. <'a. 3.'»4,aiid 3.«i74,iiiiil Anhliuiii liitihray Citrriuye f.,. V. A'tc/..', b n. 7 H. b. <■„->:{. luid !t l-:\. L'l' >. See Lonl Ju.'ticeR*e!i! ju.igiiu'i.t, ;i<; ell. i'- •i^J"-:"' I.nivl .>^.|J,„rii.'- jiitl-'imn;- 1"^ 7 II. I. (i!i;i, i'"iii "t'i'1'^1'^'*"' favour of tlie \icw aitlif Mtite tia-jii.I^.'n.L-ntuf 1. rl Ruki'mJ Ex. 2»;-2, t(.^.'7., i-'tl"'*'"'"' (I, L. U. 7 11. L '••■■••'. •'•^'''' !t Kx. 221, iM:'. -iU ACTS WHICH AIU; ni/FRA VIHFS. ir.5 contract lirttl boon cutcml into by directors of the company, I'l^- I^-J'l'«p- '•i. and liml boon itfterwanls npimivod by tlic sliarcliobltrs (j). --" Such a (ontrartwas not autborisfMl by tlic coniiiany's momo- IraiKbun of assooiation and conM not bind tbe (•oiiii)any in its •orporato cliaractor, even tlion^'b every sbai'eliobler in it niif^ht inve nsseiitod to it. 'I'be rule lai\vn in tbis ease applies ;o all romiiaiiios created by statute for u 2)artieular i)uri)()se, [and is not confuietl to companies created by tbe (.'ompanies ict, lS()2(/r). At tlie same time, wbatever nniy fairly bo •ei'anlcil as iiicidontal to or conse- limned nuicly liy the puq^^se for whiih the companies are .'fdiiiipd: ami opinions iiave differed upon the question whether bo pnblir can safely deal with the directors of companies ifitliout ascertaining the real limits set to tlu'ir authority [iii). lit it is iidw settled that persons who 'leal with a company ifhoso rofjulatioiis are rcj,'istered, and are therefore accessible to he public, cannot hold the company liable if the directors exceed heirautlmiity as disch)sed by those re^'ulations. Accordingly ilk{'"iir\. Kniint (n), it WHS brld.thatan insurance companv l;ii''""r r. {:)Ct'm\>M\' Sh.jli,l,l Xidd ''"■ y. y.n>"t V. Xicholls, {! H. I.. ('. -lol ; I?)i!':ii. i' Iji. !'.. 1). :J1 4, wlicTf wliat l\'tiij,il Jliitinh Buitk v. Tnniiontil, H ira. iluiii- was wiihiu ttiu scopt- ot K. & 15. 327 ; Alli'innnn l.if<- .Is.v. ho miiiii'ian'iuiu 111' association. Hodehj v, /'("•/. //, 1 CiH', lo^'. ami M \).) MK-ii to Lunl ").. 5 A].|i. Cii. 473, and 11 L'li. D. W.n-l. ydalcH ul.Mivatioiis in (ill. 11); /;iP./(.« ir.nltiL- V. /.'(■(•»•)■ L. ('. 41'.); A. .347. (;i) 5 C. r.. N. .'-;. GOl, See, to,., Iiriiii' V. I'niiin Hank of AiiMntliii, •Z App. < 'a. .3ti(>, as to nsohitioiis whiili oii^lit to la- i(<,'i>tiri'il ; I'tirce V. Jtriteii Wutf'nroik.i Co., 0'/>- („>,, :! sm. vS: C. !),-> (rcvt'iscd L. H. Tt E.\. 200 ; /•;,-• i>' <; M. & (J. 4:iU) ; Uumey d Co., i Ch. 4(J0 ; AO' purlr ph. 1' liT'i II. ('; Atl.-iuii. V. (ii'iil Kii.'ilnii li'iiil. ^0., uhi siij-w; /.. .iii'l X.-ll'. Hail. ■ v. /Vi,v, 11 (^). ]-,. 1). IS.-,. (i"i Till.' (iillrn-iiic of (ipiiu.iii oil hisHilijtrt will |„. >,.,.„ .^l „,„.y \,y »nil''inii:jt]ie juiljjnitiits in Cnm- UH) POCI'RINKS OF A»iKN( V. I! Bk. II. ri)j»,. 2. •^vns not hound by n bill of exchunpo nocoptod \,y it S-ct, rhajilro r. itriin!>wi(-k I'Miil'lin;; Sih-U'tv. ili-clri uc. on its bt'luilf for ii debt ini-iirrt'd bv nnotlicr i ■■' tliivcturs iisunuieeo wbirb bad bcoii iun«)},'.iniiitrd witb tlio His! ; tor tl OUlliaiiy, H' lllllal;.';!- tniciit of tlif niatioii WHS not lUltboiiscd by tlic deed of scttl conipany on whoso bohalf tlu' bill had brcu atciiilcd, mid il,,. btddor of tin* bill was Hwjirc of the natuii' lif ilic dtlit toiwliidi the bill had l)ren •,'iven. Apiiii iu ('linpliii V. lininsuitk BuUiUiuj .Srx/i/i/ i^i. it ffh held that jutsohs who have dealin<,'s with a ImildiiifT socidv must be taken to know that such a socictv iiiis \\>\ iinwer borrowinji oxecpt .such us is conferred uiion it l.y it^ i if the directors exceed their authority iu iliis n sped who trust them and lend them money for tin compel the society to repay if. Limit* of thi.* This doctrin(» is based upon the necessity of ]iiot nil s ; iiiiii \\ iJc ■-ocirlv, Cillinot sharehohi. iiainst the unauthorised act< of i! ectii,; itir (lirfot'ir>, and ou^dit not to be extended to eases m wiiicli |K:soiiswki are really i^Miorant of the powers of directors, sock to male them personally responsible for the assumption of powers tliry 'riie liability itf directors in ri ; and it will then be seen that altliuud such contracts do not bind the company for wliiili tlir liiredir: luay have acted, it by no means follows that tiny aiv ii.'i personally liable in respect of them. 2. Of Ui(» u'huh iiif intnt riirti, }>iil iif'iinlir. _ Acu in/m riV..«, Notwithstftndinf Its directoi-s, winch as regards tlic ciiiniwiiyait tiltid lii'X, and notwithstanding the doctrine th;it inrsoii' dealing with companies are atVected with notice ol tlieurfjis- tered regulations, yet, as already stated, there is no m-mi] on the part of such perst)ns to see that i/c yi/do dirtctors ai' jiroporly nppou powers tlicy poi rcfjiilations of tl that persons d notice of an ii are not nnVctcd The leading Hdiili V. Tiiniiia tered under 7 A borrow on the ci'iiiial resolnti( tl irrowed. Tlie iMud for 1000/., s Lulled i)y two (Ii; lioin the eoMipan " is not iintliori^ " IS therefore co ^^ IS no (|uestion .iilthoiity of tliosi I iiipany was /;/•; I I 'kiiiL;' only at < 111'' to 11 dill', «iiether the \ku\V tun whether the til ' resolutinn iif * Hit of (,tneen' tl y Were not. n\ fe vliieli eonecrneil f-Airjlf Int. Co., 4 K. A J. 511); Athrnirum Lift At*. Soc. v. I'votry, 1 (]iir. lUi', and .3 Ue (1. & J. SUl ; Hhtffield'n ciut, .lolin-. 4.')1, and Kranif V. [.'■•if, 1 Hpin. .Sc M. (IHI, (r,; ti Q. 1'.. 1>. raCit l|.:iJJ 713. See, furthtr, m to I'Om'ir? j)owi'r», iii/ni, pp. 1^7, f( J'? (p) IkMik ii.,c. (i, « 1. ACTH INTUA VIItKS lUTT iuiir,(a;r,Au. 167 pn.peily npi'oiutod (7^ nor to see thiit directors exercise the »'«• I|^^C»'»P- -i- powers tluv possess in the precise inuimer prescribed by tlio lobulations of the company ; and it may be taken as now settled tliat persons dealing with directors hond Jidf, and without notiee of an irregular or ini))roper exercise of their powers, are not nrtectod by such irregularity or impropriety. The loailing authority on this bead is TItr lt<>!i). .Vnd tlio party lure 011 rc.i.linj,' tlic died jDi M'tdoiiifiit, wuiiM liiul not a '.iroliibition froni Imrrowin^^, liut a per- ('/) ''"|()l^/ J.iu ,1m. r,)., T) Ch. H. L. sm), where I liere were none. 88, wliun. llicre weiv sonie duly (»•) :, K. ,i \\. ^4H, nud (i ib. Wll. iri'"nit.-.l (liiTH'tors : Mahnnn v. («) See uec. n!« to I.ye-laws, A'.-i/ui 108 i>ooti{im;s or auiai v. r.k. II. C!iai>. 'J. mission fy a rosiilutinn, lie wmiltl liuvc u ri^lit to iiifci' the fact ,[ a n'Sdlution authorising' that whicli io h'j^ilimately done " (0. Omnia ]>r!> sii- miiiitiir rito I'xse acta. t'Inrko r. Im- Coiiijany. This wns lint the lirst oocusion dn wliidi the maxim iim;ii,| pnesitmiDitiir ritr I'usr nrtii lind been appliotl to surh cases. In Clarkr V. Tlir Iiiipiiiid imy fur tlio payiiuMit oi' iiii aiiiuiily tn ;i ritiffd sorviint, was jirosuiui'd to liave hcfn cxfcutt'd after due ciiiiipliaiKf with Ilill r. Man- all Ci'IlditioIlS ; and in //(// v. 'J'lir Mdlicln.'itrr mill S,ilh4 ilio.*U'r WaUr- , ,, i • • i work.s •', mpany. \i -iti rirorhA (.(>iii]uni!i [.r) , tiic same |inu(i|>le was nctol iipnii; iilthon^di fluit case rather turned (III the iiiiuhiii.-siliilitv uf tlif evidence hy whicli it was stiULlht t«> shuw that flu itM|ui, .1., whilst rt-cofjiiisni}^ the Mm( that all persons who contract with the directors of a itfristeiHl company must be taken ti> be co^Miisaiit of the oxftiit uf tlii; authority conferred upon them, added, " Hut it ly no iiii;iii> follows that they are to he tiiKi n to he cognisant nt' all ihr proceedings of tlie board of directi>rs ; " and that Icanud jute held, that the piildic were entitled to assiiiiie that a person acting' as the agent ot' a comimny had been duly api/oiiitnll} the directors; for by the company's deed of -m ttliiiirut.tlnv hud power to a|)point persons to carry on it^ busiui ss. .\'.';ii: Apar >. AtliL- jjj J,,,,,- y, y/,,. J thnufiiiii Lih' Asxti ntiice Soricti/ {:\{\w i\m<:Uii nrt'iiiu .'.RBur.iiicc ■ ■■ ■ .^■icty. had power to borrow, but only with the ooiiseiit ef an extra- ordinary general meeting of shareholders. Tlay ilitl l'<'nw by isstiing debentures sealed with the seal of t lie cMn)panv,!i:i.i signed by two of themselves ; and it was held. tliiittluso(kbcii- tures were binding on the company, although no smli atitiinntj to borrow had been conferred by a general meeting as was con- {t) Sv-e an to this 7;ri'/(C v. I'liion liiinh (/ AuMraliit, •! Apji. C'a. .3<)(), wln-re thf icMihition, if any, wnuld havL- liLHMi rt'^istered. Sie, also, Lnnilim-turn' I>,m/i>nl I'.inol <'<>., 24 Ch. 1). s.-,. (m) 4 B. & Ad. WVo. (jr) 5 15. & Ad. SGi;. (y) 1 1 (.'. r.. ^'^'■ (:;) 3 C. I!. N. S. 7:;.''. (''"'P tliis with AihnWHni l.'J' . I. •»•■''"'■■ '■ ;%,/<■./, :H)c(J. ^J.^JH-^'i^'- ioa. .\( T tcniplati'd hy ihi |i^W«('(' I if II (ill's . \SwicitJ{su( [pivvioiis rcsohuioi idfol. The same piiu bct'.'il upon ill cha , claim was iiia(h' Respect, Hot of a |ii p'aiit siirh a policy dii'oct(ir<. 'I lie ('( iooil, in (h'liverii aadc ill The Jlniin li'ictioii tiicre draw nnnifcstly iniperfci Peed ,d' sotth'iiieiit iJOthiiiL; to iiidicat piiplicd with. "Tlub, \\li,.'i-e ih,. ,i, ni' ' oiiiiiniii seal (if tl Uiy i;Ul M'l' at (illCc 0U1i.11(h1um,; I, lit litii'ii.'i rci|uircil I.y t oii'I'iny, I'ur in-taiic OllllMrtill-witll the ivilllill tllf S(i,|,r (if '■'■!8llfll Ci.Ililitiul "Sl-'Ulr i, II, ,1 |„, 1111,1 '^■'■''"Mli,. like. ,,il,, fqiinv\U,dli,rtl„. „, fit-;vi,i i.iii,.|- ,11,., I,, PT'i'-y, it w,,iii,| l„, '^^''''I'ilblnlll,,,!. [(«')•"' i'-. .v. S. 7 Vll'lill.: ,,/• (/•„/,. " 'K.\,l,,Vj|,^ ^s;, A( TS INtr.A VIKKS HIT lUlJKdUI.Al!. 1()0 tiMupbtca l>.v the oompnnv's deed of s.'ttloiiuMit. In The i-^- |]^;^[*''.]l'- 2- J'nmwo/" Hu/'.-i .|s',s/(rrtH«r Sorirlif V. 77(«' AtJictuniw IiiHiiniHa' - ^ • ' . Prin(*o of ^Vlll^'S ,S,.,ii7// ('(), tlu' Com-t of (,)n('('n's IUmk-Ii held, tlmt :i itolicy «>f Assumn™ ■ ,„.„„... wsiumI iiiulor tlic seal of nii iiistinuicp sociotv and ^"''"'^-V* '^""'" sii,nuilh.v tluvi' of its directors, was liindiii,!^' \\i)ou tlio society, •'^'"^i-'ty. lalthoimli the i^>Me of the policy liad not heeii authorised l.y a pivvioiis nsohitinii of directors as nMinired hy the eoinpany's \ Tlie siitiic principles linve fViMpieiitly Ikmmi approved and K.-ikIu Co'npuny's lact'il upeii ill chancery. In K.r }),iit.' 'I'ln- /•.'./'//.■ < 'oiiijhinii i/') Scliiim \v;is iiiaile n ■liii-t the AthenaMnii Assurance Society in •e>iurt, lint of a polii'y umh'r its seal, hut oi' an afjreenient to L'niiit such a policy entered into on helialf i>\' the society hy its llimtors. 'I lie Court allowed the claim. The ^'ieo-('llan(■ldlor "' ill, in dclivorinj4 judj^njcnt, approved (d' the nhservations „..>li' in Til' Uoijnl Jiritinh Jhntk v. Tiir ill the c;ise I Iiavo last rcrci'icil tn, the ceii- i '.1^ rei[uin'il l>y tlu- iull ii'iiditiuiis l;a\i' Ikm'II coiiijilii'il w iih. Ill til.' I asc last stip- «t"l, lie i- iidt liouiid til imiuiie wlii'tluT the icsiiliiliiin- have liet'n duly I'ltlie liki', .itlu-rwi.-i! he would In- lunwid In j,'" I'nrther back and to qniiv wlnilur tip- niwtiii^'S have h.cn duly suinniniicd and sn luscerl-iiu a IU'1\ ul i.ihcr iii;,tti'is into whiili, i!' it wrrc necessary tn make .'-ach iii'v, it wiiiilil 1„. iiii|M.>>ilile for the C"m|iatiy to cany cii the liusiiies.s Irwliiili it u fiirimd.' ^n) :U', li. X. s. 7")(i, note. See, AiiMr\ (Jo. v. /!riilsk p,/Vi,(.'. ,/ U;,!,.-, Asmr.iiirr N/»r. I'mvuhnt, <(•-•., Sori-lij, '\ (JitK 5:: I, \llnr.ln,.u K. j;, ^ K. is;t. varied uu appeal, 4 De U. V. .^ J. Rl) iK.\.i.'it!i. See, t,M I,. I „,,/„. an. ifl r 170 DOCTIUNKS OV AdKNCY. ''•'• ^IJ^^T ■• '^f^'"" ■" ^-^ ^""■'*^ 0/v»Y«(/, r;«;-H«7/ ,(■ Co. (,.), „ company was luld bound hy l.ills nccoptcd by its clminiiaii, ftltlion,-!, L Ex partf Over- i , , i i • i cmi. (inriuv .V had only bot'ii authorised to accept tlicni on ccrlaiii comliti, Co. m Pfiivc r. JetTcy Waterworks Coniiany. which had not been complied with. Tlu- bill liuldcr in tlr case had no notice of the conditions, but even if jio had had such notice it would have been no i)art of his biisiiRss to see that they had been complied with ; he woidd liavc been entitled to assume that tliey had (tl). Further illustrations of the same principle arc atinnlod bvtlie cases already noticed in which eompanivs have boon held bound by the acts of ajjents irre bo tlio tiigiuwr of the company ; and he sued the company for his saliirv, and althoU{.'li he \uh\ no notice that the 3,000 shares had not kei allotted, lie was held not entitled to recover. The Court con sidered that until 3,000 shares luid been allotted nosuchconi' pany existed as the pbiintilV could contract with, lint tlf company ununiiii? that persons whose agency has comuu;nced are |uirsiiiiii,' t» authority, and this difference is perhaps suflicieiit to remlortM decision in question consistent with those all mledto above t*i BiL'iiod bv tlirectt ((•) 4 Ch. 460. (rf) See/MT L. .1. Giffiirtl, ib. 474. («) AnU, pp. )j8, 160. (f) h. H. 5E.\. 209. ((f) Ante,\h 111. ("/») Sec tlio end "f Mr. Bits Brain well's judgment. ACTS INTllA VIRKS HUT lUnKOrr.AU. 171 Tlic princiiilt'S established by tlie foregoing cases apply, not J'-k- JJ^^f'W- 2. ionlv as between eDinpanics on the one hand and strangers on — -— — [tlie other, but also between companies and then' members ; and ^s aUctinK lit 1ms been held over and over again, as will be seen hereafti'i-, ",^;;'"I;;;''J,,';[y. jtlmt us between one sliarelu)lder and the others tln^ validity of itlie nets of tlitir directors depends in any particular ease much [niore on the power of the directors to do the acts in question, Ithnii on the re^idarity or irregularity of the manner in which those acts may have been done (i). \ ))L')son who knows or is to be treated as knowing that ••■'i'''* "f ""'■•"' I ••111- "f iiiilirdiiiicfy. [(linrtors or ii;,'iiifs arc acting irregularly and improperly cannot bold tlu! conijiiuiy bound by their acts (/.) ; and instruments Bigiioil by directors on behalf of ii company, in a name which ^8 not that of the company, are improper on the face of them, ind do not bind the company (/). In connection with the subject of notice, it must not be for- Transferees tf ,. . peoiiritips im>iio- gotten that Iranslerces of bonds and other ordinary ehoses in ,,eily i»s.icl. ^ctiou of that kind, not being negotiable instruments, nw primn ibciV in no better position than their transferors (hj). But a Bompany may be estopped from denying as against a transferee bf a sociuity what it might have denied as against the trans- feror. For example, in ]Vcbb v. Cinnmiyainners of Ihrnc Wti.l. r. ("om- wy (,//), a corporation was empowered by statute to issue \\^.ynK iiiiy. |[ebeutines but not to members of its governing body. Dcben- iires howevt;r were issued to oik; of such members, and were m'^\m\ to a hond fuh' holder for value without notice of the ipropriety in the issue, and it was held that the corporate ody was bound by the debentures, and was estopped from |envin<,' their vididity as against the plaintiti". Apiiii in the case of the liomford Canal Co. (o), some deben- Uomfonl Canal reswore issued to n contractor without the sanction of a meet- '""'''""^" [(») Sec in Iniiik iv. uiidrr tin- head blitriliutdries. [(i) 8ce ckipUo V. Unamrick ttilding Socutij, (J Q, 15. 1). C9« ; flfour v. Eruest, 5 C. B. N. S. GOl ; )llwta's dnim, r, Ch, 444 ; In-ine v. (ni) Athena i.un Life Ass. Soc. v. I'nol,>i, 1 (liir. 102, and 3 Do O. v'^: J. 2!M ; and other case.'* noticoil iiifiu, p. 180. (n) L. 11. 5 Q. B. (542. (o) t'urw'* claim, 21 Ch. D. 85, ^.0)1 nant „J Amtmlit, 2 App. Ca. Sec, also, Ex parte The City li^ink, 3 ^" ('h. 7i)8 ; Kx jpirte Colbornc and Jj) llnnW V. HuU, dr., Ins. Co., Strnwhridge, 11 Eq. 478. 172 lik Konnslitio* law. i>o«TniNi:K (»r .\(;i;n( y. ILf'a'' * i"^''>< wliic'li an insnfljrifnt luimlxr of slinrolinMciswnspresfiit tind he kiunv this. A Ixnu'i Juli' trnnsfcrtt' i\>v value witlioin iiotico of tlir iin'pilai-ity wns iipverthclcss litld cntitlod to iw. men! l»v tlu' ('(Unpniiv. The ohscrvntions niiido ftbovo rosppctin^ the validity uf con- tracts, Sec, ontci'pd into by directors in coiitravcntioii of a company's rofrulatioiis, liavc no api)lication t(. ciim^s in whifli contra<'ts arc rcrdcr to render contracts Imidiiifj upnnioni- jianies will be noticed hereafter (;»^, and it will tlun lie sm thnt \vh(>flier tlieso fonnalitics are required by stalnti' nilntlii comnjon law. contracts not in the form ])rescnltcd arc nltoKitlier invalid, unless they can be upheld on the ('([iiitallt' piiiidplcs relating,' to part performance. SECTION III.-I\trKKATIVK AND MIUKCTOUY ("I.AfSKS IN (' i)irAN!E< STATL'Ti:.S AND UHiil'LATIoNS, A statute may require nn act to be done iu a paitiiMilnnvay and yet not lendir the act null and void if not dniu' in tli«. w prescribetl. Whether invalidity of what is iKiUf is ii t""*- quence of a departiuv from the terms i>f the act nr not iltpenils on its true inter[»retation, and this again deiiciids mithi «irJ- inf,' of the statute and on the object sought h> I'f ultaiiicj i'} it. Statutes arc said to be (;«j>c;v//frc when tlirv lomk mil and void what i^ done contrary to their provisions; ami to K director!/ \\\wM the conseipumce of disregarding thorn is Mt the mdlity of what is done but something ditl'.n'it, Tlif following cases illustrate the distinction in ([instioii:- Kxan.i.lc« of ;m-ut to the laariia-^of >uch party, and if the falh.r w...s a...!, ti.wim', im citD^vnt. It was Iifld tliat \\n<. iiiiuriii^'c wiw Incwrllnli's- viiliil ; for the le^'islatm-e evidently did not intend to ImHtardise Itlic i->iif (if marriage solemn ised witlimit tlie con-^ent i'eui[)o.-c to jwliirh the horou^^h fund ifl ninde ni)i)Iienlde liy the Mnnieijtul eorpomtion [net and iihh(iiif,'h the ih'cd containing' llie eovi-nant has imt licen approved Iby the li(»i.ib of tile Treasury an required l>y the same iiet(;). So it wan i^. pvuvrc c. IIkM, that a rate made under the I'uMie health act of 1848 wan valid, Miller. alt'i:iiii^h that statute re(|uires all rates made or collected under it, to lio [pulilislicd in the same manner as poor-rates, and the rate in ([tiestion had iDothtin imhlislicd in tin; manner rcjuireil (x). Ill each of thoso cases, tlif stiitiito in qiirstioii was siiid to he lirectory only ; and to r-ach of tlicni tlie luaxiin Fieri imn chiiit 8((l fitctum rali't, was held applicable. In caeli case Isomctliiiij^Mvas to be done in a i)articnlar manner; but what- lever iimy liave been the consoipienees of doinj,' it in some [otlior nmimer, the invalidity of what was done was not one of |those consequences ; and this appears to be the test whereby (leciile whether a law is directory or imperative as those eniis are custonuirily employed (/). Stiitiites whidi are directory only are common en(ju<,di, but It is not cnsv to rcco'^nise them with certainty before they liave |)eiiijiulicially interpreted. There is, liowever, a nattiral ten- leiioy on the part of C'oiuts of justice to uphold an honest ransaotioii alllinugh s< 'uewhat irre^'ular, if to do so is con- ttiit with the true interpretation w v. I'ixdl, -2 C. P. D. 562. (a) 2 Ha. -101. \('l I''HJM v. Uro-o,,, ;{ 11. & N. ui. [(<; /.■-' Faim V. Milta; s E. vS: B. [('! l'"r other instances of direc- ft) ^'"iliitury eiiaclnieiits, see /.'. v. 171 ixM riMM.s ()|- A(ir,S(V. li- lt I itipotingH, (jtiortiiii of r.v. IF. ri,!»|.. 2. lumnirr. nnd ubservinfj cprtain forms, to iv(|iiii(. tlKMlimtor, ti) convene sncli nicctiiifrs tlK'niHelvcs. A (|ii.sti(iii liaviiu arisen lu»w far it was neeessary to adiiero strictly to the ter of the enactment, in order to jiivo vnlidity to the lutsofa nireting eoincned miiler it, the Viee-Chaiiccllor, Sir James ^Vigram, expressed a strong opinion that the nets of anutliiij convened in suhstantial conjpliance with the stiitiitiMViiiiliil,e viilid, althongh all tlie prescrihes uiicre a Again, it has more than once been held, tlmt wluiin cnir.' docunifnl has . . i i i /• i i- U.CI1 iiiform.-illy pnuy IS incorporated by charter, or act of I'liiliiinit lit, which '^^"'" ■ directs the observance of certain forms before the '.orponite seal is annexed t«t contracts pm^porting to bind the iMnlvcor' jxtrate, a contract under the corporate seal, ami if a kinl authorised by the charter or statute, is binding on tlit>oori»- ration, allhtugh the seal may have been annexed withuiit the observance of the prescribed formalities (:). So, in the case of any ordinary joint-stock conipam-, tk deed of settlement of which declared tlmt all elu'qtii"« on its bankers were to be signed by three directi)rs, and tin iliredr* drew che(iues signed by less than three of tlnni, it win held that this irregularity did not alTect the right of the ilindors to be aUowed as between themselves and the sbarelioliler? the Kums drawn out, such sums having been bund fuk applied k tl»e purposes of the company {a). (x) 4 Man. & llr. 552. 15. a:27, and .'. iv .^ H- •2i> ; •';'^^^ (i/) C.minire A'lVA v. /,V//, 1(5 Q. The Athr^utHVi LiffAmmo^ n. Vjo, and otlur cast--* cited ant,; 3 C. H. N. H. 7 A'-. C'm^ml'-i^ pp. lOr), 150. V. Tauuir, dr., lUil. 0'., I- It--" (;;) See Fotintuine v. '''irmarUKti 158. i^iW' /.'y^ti^W, 2-' ^^J * JiritiJi Hank V. Tunjwtu.l, E. & (\m\ydre Kx jxirtt Ai/num^^^ Rijjnsiun'* cf i-liC<|ueH. KATIIICATION IIY COMrAM»:S. nr> So, rlausi's nhiiuii to the mode of Hipuug minutes of iiipct- '- JJ;./^"'';^'!'- -• hl's, kcopiiif,' nj^isters, niid innkni}^ rctunis, so iis to reiidor bfiu iiiliiiissibb' ill evidence without j)rcliniinary proof, are 'ui^,',',','tl'.' " loiisidcrcd us (iinM-tory only ('>)• \s iT'mrds bonowinL' money, statutes limiting the amount i'-'rr..wii.){ fcliicli may be bitrrowed nre always regarded as imperative, i will bo scon hereafter ('•) ; h\it a statute autln»rising money I bo borrowed with the consent of a general meeting 'vns, as (this, bold dinotory only ('/). Soot. -13 of the C'onjpanies act, 1H(»"2, which directs limited N'">r';;'-t'"y ^f I . ,. ,1 Kcourilies. lonipiiiiios to koop I'cgisters of all mortgages and charges Inis been bold to be directory only ; and an unregistered mortgage, kveu to a director of the coujpany, is not invalid (<). On the other hand, a clause in a company's regulations >'r>'^> |.ai>t'r«. equiiing i>roxy papers to he attested has been held to he im- erativo, and proxy papers not so attested were rejected (/). Those cases nre nut to be confounded with those in which '"l'''"'^ '^"^^''P*' 1.1 tic lllHtlH- hnrolioldors and companies have been held estopped from fe'iii.siial. akiiig advantage of the non-observance of fornndities. Such asts do not turn upon whether the clauses prescribing the bniudilios arc directory or imperative ; hut upon the very pircient queslion, whether, supposing them to he imperative, he invalidity uf what has been done informally can be insisted In by those who have always treated it as valid, and induced Itlurs to do the bame. SECTION IV. OF RATIFICATION BY COMPANIES. ^^hen a contract has been entered into on behalf of a com- Ratitioation by . • ,• 11 I comi>anie8, «n\ nii(jrnialiy, but has been acted upon and is then disputed the cunipany, the (luestion naturally arises whether it has fl«'* r-ank, G Ch. 200 ; Ex parte (,/) Landoinum, dc, Indmire Co. hmwjhau Hank Vn., 3 Ch. 051. v. .-Uh/onl, 16 Ch. D. 411. [(|') Set ante, p. 57, 102, 110, as to ((,) U'riyht v. Hortm, 12 App. Ca. gi'^ters and rdurus, an.l ui/ni, book 37 1 . ■ , f. 1, iu to minutes of meetings. (/ ) Harhen V. Phillips, 23 Ch. I). p<; 'iifrii, c. U. 14 ,j iiispnti. between Hlmrcholders. \¥ 176 IXHTUINKS or AOi:\(V. bi'ooiiu- Mii.liii^ on it. In onl.r to aiiswtr this (pustioD, rt pud must \>v Imd first of all to tin* imtiire «( tlic ,„iitriut, If it is one by wliiili the coiuitiinv would not Imve b.tii Lcimd t'vcn if all i.ropii- foruuilitios had boiMi obsoncd, nitilinitioD by the diri'ctors lun bo of no avail as a^'aiiist the (iiiimiinv; nor will ratification or ailoption by tlu' sliarclidldcrs lie,.|'anv avail apiinsf tlio fonipany, if tlio contract in question is one into wliiih the company lias no p(»Wfr to cuter (//). ]{iitiftlif contract would liave bct-n biu A cttntract enteri'd into or an net done before a rdnnim is tin' f«riiiAtii>ii "i I, , , -i- 1 1 • • 1 the coiiiiMiiiV. formed cannot he ratitietl by it in tlie proper sense of tbt ei- pieshiiUi. Katiticatiou in a technical wonl and liiv-iippuses the existeiic* — 1, »>f a principal; 2, of an nu'int; niiiS.of some act done by the a^ent for and on beliall f tlii piiiuipal but without his authority (/'). \N here there is no iiriiiqijl there can be no aj^'ent and no act done by him for liis pfiii- cii)al, and conseipieiitly tln're can be no nititliution— u,'!' proval by him of sonicthini^ previously dune for liiiu, A company therefore cannot, properly speaking', nitity wlut its promoters have done before its formation (A). I5iit ii com- pany may after its formation become boimd ta, nut iced (tnte, p. 1(54. See, also, Chajilio v. Jlniiimnck Jiuildin1 ; I'liuuLr Life Afs. <'o., 2 J. & 11. 441 ; Tlu Km L'o.'i caix, 2 J. (k H. 40S ; I lA- » ;. J. &S. 2!), Ill 1 II \.M. (A) / ,1 /iiiii- '/.I //•«i/iiuiy(»). .Mdiiovii', although a company's arlich's camiot be alti'red [for tlio future without a special resolution duly passed and eoii- Briiuil, an lut done by the directors contrary to the articles as llu> stiuul iiuiy be ratilietl by the shareholders without altering \\\i' articles, .nd without any such special resolution as their Itmilioii rcnuires (o). A ratification, to be imjuitablc to a company, must be made livcrtly by its shareholders or indirectly tiirough their agents ctiii'^ within the limits of their real or npi»arent authority ; il ill order that ratitication by tlie shareholders or their lilts way be proved, it nuist he shown — 1. That the parties alleged to have ratified the contract lew uliut it was; or, having iheir attention drawn to it, did Dt ihuose to inquire into it (/»). i2. That they have in sonuf way recognised and adopted it. [ll' tlicM' two essential points are established, there will still knmiu for consideration the question whether tlu- recognition [(1) .l/i('', l'. l-Kl. („) (<,.fi,,t V. Unitnl KiiKjilom |ti, 38 L'h. 1). 15G. Sie A'.. y«o^ Siritchbuck Hail. Co., K) (li. D. ^..., //ri'i, v. r,n.-,i osit iiuk waK giviii in ai.-diiti-KL- y,',n.A- of Au^tndiu, -2 Ai-p. Ca. ;JG(). Julebt not dut; from tlie »ociety. CoiupaiL' Chy v. linffoni, 5 De U. & S. 7()0. ( i>) See La Bitmiue Jiuques CurtUr V. La liamiw:, ttc, de Montreal, 13 A pp. Cu. 111. ') ^>' \<. KK), ft ji,7. ; V.-C. on 111 Loiiilitii t'iiKtitcinl Am. v. *. 20 CI,. 1). i4(j ,(;; ini.smiw •^■vtn riirtluT if the niuMtiuu of „c. N 17S i>occl. i. 1. An to know- Knowlfxlj.'o by fliari'li'-Moni not alw.iyii essentia!. and rtdiiptiou have been in i)n>pcr fonn. Kadi of those niattir^ irqiiircs a few observations. First, as to knowK-.lge. Where the rontnict is oiuMvlildiit is o»)ni[H'ti'iit for the dir»'etors to nialco. it is iilsn nut viliidi it is eonipeteiit fi>r thesn to ratify ; and in siul' a case knowUie l)y them is for the jmrpose in (juestion equnplcnt to bow. ledge by the eoniimny (7^. 'rh<> case itf Siiiitli \. I lull Cluj Co. (r) is a heading authority «in tliis head, iind Ims kn foUowed by others which have been alnady nfciivd toui, Wliere. however, the contract is one whiili it is not competent for the din'ctors to nnikc, ratitication l)y thcin i- ot' no avail; and linowh'djre on their part of wliat i-^ bciiiLf dniu' uinltTtlie contract is not eijnivah'nt to knowled}.;e uti tlir imrt of tlie company, in such a case as this, ratificatioa (Hi the part of the shareliohlers nuist be i)roved, in order to ostal)li>li nil- fication by tlie conipar.y (/). Jint even in tiiis (.'nsc, it will k inferred as against the sliarehohiers, from coinparntivolysliclit circumstances, that they were cognisant of wlml it was tlit duty of the directors tt> bring before theiiiOd. As in ordinary cases of agency a piinc ipal amy latilv li;; agents' at ts witliout intjuiring into them, so shiirelidlilcrs^ have their attention fairly drawn to what iIm diro'torsliave done mav ratifv tlieir acts without knowing all tlic ciivuii!- stances attt'nding them. liati(ici\tion mi tin- |mit of all tie shareholders will be inferred if the acts aie -Uih ;i> nil oas ratify ; if the nttei *:ou of tliem all, •n- <>( such nf tlieiii a> choose to attend, has been fairly called to tlie ii(t> iiniUn' tion (./*. and if those acts have been periiiitteil to he doneir acted upon for any lenglli oi time without luiii^' cAMii (juestion. .Mtliough eases exist which are extrenitly JilWt (7) Inipliiil kiiowledi^e fniii lh>' riw, 2 .1. i^ II. lU. iMKiku of tilt' coiniiuMy, but wliicli (u) See /.H'lc'.* 'Ma, 1 De^"'''* til. V never »aw, U not enough. Set.' S. r)04. ,, C'..r/,m/r« -■..%!»( ■li.l" «mrs,' tlii* is .i^ntit (r) K V. \i. mn, 11 il). Hi)-:. ^«-'« /'•"■"<• '■■• '''"'"" '''""^' '-^^^ («) See anif, ji. ItiO, and firmh/^ InUiu, 2 Ai.}.. Ca. 3«C; W*'^ auf, I Df (i. J. \ Sin. -J8S. <(-f., /.'.(.7le itself will l)o l'^. IJ. Cliap. -'. fnuiul rorofiiiiscd even in those cases wliieli Imve been decided iiol tti l":ill within it (//). (Hlicrs luivo heon decided in accord- ftiicc with iti:^. A leading case on this subject i.s 77/ r /Va).?- phosphate of .,. ^. , • , \ • I'l'i ~iii' ii'i Lime (Company \ihitcof Limr Co. v. drrrti (d), ni wliidi it was hehl m cttcct : ,. ,^^.^,„ ' •' I. Thi'c 11 purchase of shares by the directors of a company Dut (if it-' fiiuils was beyond the powers of the directors. That tlie money paid for them might liave been recovered bytlio (duipany but for the subsequent nitificntion of the trans- ction. !5. I'liat the company ought to be treated as having atitied the transaction, ns it was ir^irly brought to the atten- [1011 1 the sliareholders (/^), and Imd been allowed to pass uu- juo>tiiiiie(l for five yefrs, and had bei-n treated ns valid in ^thir aiTaugcinciits since nnule by the company. A ratiticatioii of a past irregular act does not of itself ^•"'''"■•"■''^" ''■"' ]>ast not t'lpiiva- lutliovise a repetition of a similar act ; and it may happen that lout to authority 1 ., . ,• .. !• 1 1 1 1 rt' i for tho future. irhilst ail onuiiary meetmg oi shareholders may suihce to atify what lias l)i( n done, a different kind of meeting is re- luiiLii til confer an authority to do th^ like in futmv. This is irell ilhistrated \n Iniiic v. I'uioii Batik of Aimtralid {r\ in Irvino r. L'nioii I, .,,,,.. i- T>- « . " 11- l'>;ink of Aus- Iriiuh tlie director^ ol a luce Company were empowered by its nuiia. ticks of association to borrow money to an extent not sctidiiig one half of its paitl-up capitnl. The directors oiTuwed more tiiaii thi^ fr>.iii a bank whicli had notic" of tb.c- ^stiutiini.aiiil that the articles had not been altered by proper Btlmrityir/). 'I'lic company was held not liable for thi' sum luslMiTowinl ill (xc'-s (if the directors' powers, idtliough the ^vi htilileis li;i(l ratified a similar transaction two years before. [(!/ .>('7.)/i(i;i V. AVdH.s L. 1{. ;j (,■) ■> A pp. e'a. IHW. Grant v. '••171; }loHhlsir.,rth \. l-A.nii, I'liital Kiii^i^lniii Sxitrhtnu-fc Rail. Co., 40 eh. 1). 1:55. iia ii) l'-''ns y, S'n, on timi ; an aU( ration "t them could Hil; Mini the ,,(-(; mjxi cited. only be made liy a regi.stered Hpecial ''• l^' 7 ('. P, 43. Sie, al.-,,., resulutiun. The bank was tlieivforu x'"" Fuiandnl .!.«. v. Kdk, -Hi tifatcd a.-* having had notice as _"■ l"i, uihI tlie next case. staled in the text. The report doe.s "l'i"'""H nii^ht reasonably not >tate that the t)ank had notice f* 'I'tliaM uiK.i, thi.s jHiim, as Uial the limil wa-^ in fact exceeded, ■''^'9i"ii to the tiunsaotion in Liui the writer a*.smnes tliut it had. "' "" ^^''' »(Jincwhat iiiisieudiiiy. 180 DocrniNF.s or A(;i \< v. Bk. 11. ri.aii. '2. Sect. 4. Katificution o( «lir in i'.im- ♦ •f fl.liul I'll tlic kliAreliuliUrN. 2. Mo-le of reci>|jnition. A riilifii'ati.'ii liy tlu' (lirt'ct(»rs is imt a liitifitution Lv tk couii-any wlurr tin- ratifu'ation it'lulcs to an mt (loncbvtlie (liroctors in fraud ol tlic sharchoM'Ts, and tlic person relvinc on such ratitication was i»arty io luc fraud if\ Thmfore.if directors of a conipaiiy frauduUiitly issue debentures uiuktlit seal itf the eouijiany to a person privy to tlic fraud, nriil die issue of such dehentures is entered in the coiniiiiiiv'slMHli;, au'l intiiest tipon the dehentures is re^'ulmly prtiil, Imt ttf shareholders are kept in i^'noraiu-e of the entry and pavnieiitj, the eonjpany is no more bound hy ratilicatiuii tiianlivilie original issue of the debentures. .\nd inasnuuh as a tlek- tnre is ti cliose in action, and oidy confers iijiou its imiWK the title of its assignor, even a />«/»?. //(/c purchaser for valof, without notice of any fraud, is in no better pusitiuii ;ii,';ii!i5ttlie company than the origiinil payee; and the purdiaser's posite against the coujj>any is not imi)roved by the rccdgiiitiunof his title by its directors ( /"). Hut, as before observed, a cmnpaEy may be estopped from denying as against a tnuistVrte tk validity of an instrununt it might impeach if in tin li!tiiii-l his transfen)r (;/^. Secondly, with resiu ct to the mode of recognition aiui adop- tion. Assuming a contract to be one which tlio (hinturs u tompuny Inive power to enter into, and that it has been entered («) S<1 an cntr}' in tin- lMKik« of a bank, l>y iU nnuia),'ir, iiiakiiij,' it ajij-iar that II di lit .• (i. \ J. 2SM. Thi-< casi- wjw fciilowni in ll'ii'nCt cliiiiii niid }iri){rn'g claim, \) \\ . K. 3; 2 .]. & II. ;{(»<;, wlu'H' tilt? f-hart in i^noniiicc of uliat had Ixcn doll'-, Tlu Athnvium !,{'■ .'.* ,s'(i.-i''7j/ \-. I'"«kij aiii>ear- at i^ ."ijiht to l'«- oj)[Hi«eil t'l A'!' ' Allinnrum Lift' .!«. .ViA3l 1!. N. .*^. 72."); f.T in tht'laiwa*] ju'lj^nuMiI was rci-uvi'MJ iii uniM at law ujion mie of a «tuf il)* lures whil-t i» lli<^ former i«j (itlifi- lif til.' .'■.lint Ht wi« 1 invali.l. lu tlic a. lion atli',! li.AV.viT, the (.Illy I'l.a w;ii M << JiirlHiii, ami 110 4llr o Sect. I. khcn,upon the principles alreiicly explained, the company ought '— |o bo (leenied to have ratified the contract in (juestion, and to be bound bv it, uidoss some particular form of i-atiliciition i?< ^eqiiii'Cil by law, and that form has not been observed. It has been nh'Oiidy seen that the non-observaneo of i)artieular for- Uilities prescribed by companies' deeds of settlement and Uiriiliitious is inunaterial as regards persons dealing hnndjlde B'itli the directors without notice of the non-observaiice of the loriiis; and several instances have been already referred to in jfliiili informal contracts have been held binding on companies bn the ground tliatthey have been acted on with the knowledge bf the, directors (,/()• A greater dinieulty, however, arises where he formiditios in question are retpiired to be observed by law Is (listinguislied from agreement between the parties. If in- bniial ratifications (tf contracts informally entered into were sudi cases lield valid, the law retiuinng the oliservance the fcrnialities would be practically repealed. I'poii tiiis Tounil it is that the (dd rule of the common law that a liody lorporate can only be bound by instrunn'nts under its common leal has been so rigidly adiiered to, even where the corporation as had the benelit of the contract (/). Hut even liere, as will I scon hereafter, the equitable doctrines of part perfornumee nay eomo into oj)eration and render the contract binding. (M .1,1/., ].}). lW-172. (t) Infra, c, }. ^ >L^^nSMViB^ 182 LIABILITY OF COMrANIKS FOU ACTS 01" TlIEIIl AGENTS. CASKS xnr s CHAPTER III. OF THE LIABILITIES OF COMPANIES FOR THE ACTS (^F TIII-IK AGENTS IX PARTICULAR CASES. goiiiii r.k. II. Chap. 3. Recapitii-atixg the results arrived at in tlio fore Recapitulation, pages, it may be taken as settled that, — 1. Companies can only be bound by the acts of their real or ostensible agents. 2. The agents of a company cannot bind it by any act which the company as a body has no power to do. 3. The agents of a company can bind it by all acts wliicli can be shown to be within the limits of the authority really conferred upon them : 4. And also by acts, which, although not thcnisclvos autliu- riied, belong to a class which is ; and which acts, tlierofore, may be authorised for anything that can be IcariiLd to tin contrary by an examination of the authority conferred. 5. As regards acts of this last description, tlio neglect ot directors to obseiTe the provisions of their company's deed of settlement or regulations is a matter which docs not concern;! person dealing with them hoiiii fide without notice of the non- observance of those provisions. 6. The abovi' rules apply as well to ratifications of contracts previously entered into as to other nuitters. 7. But a company cannot ratify acts done before it cam into existence ; although it may bind itself by a new contract, or be bound by its act of incorporation, to perform them. 8. ^Vhere particular fornuilities are required to be obsemil by law in order that a contract may be binding, an infornm! ratitication of an infn'mal contract is of no avail, except in tlii limited class of cases to which the equitable doctrines of pai! performance sire iij)plicable. 0. 1)111 as regai'd of all the sliareh liave ratified what attention has been if to question it. It is necessary n wncral principles to SECTIO.V I.-C.\SI^ Aihnissms. — .Adin of a company in the matters which it is tvidence against the In r//c rkvdlii Prcr speech hy the chiiii-n- u company admitting inadmissible again.st m allotment of shar spoctus. So an adniii proiif of facts ndicd amalgamation (c). See further, (/(/)•„, i .lmhinmiitinii,~\)[: ainalganiate their rcs) cxproNsh- or impliedly General powers >,\' piirdiasc the bnsiucss lousiness of one's owr (") See Ml V. L. ,(• ,V. ''«■, 10 licav. 44H ; M,„,. '*' -!>>•(;. M. ^ c. 5 &™Wf, //„„„,,(■ C, V. ,S'o, iWN Tniinmij.i r,,,, ifj (1 ]{ '■)ii<'li.l», :,1,;5. (■•) A/«/„,v iun„m,i;„„ I m. CASES NOT INVOLVIXO ANY TOUT UU FRAUD. 188 0. But as rogiinls mattors wliich are not beyond the powers '••<■ ^^^^^^^J"- ^^ of all the slmreliolilpis, ihey or the company will be hold to have latiliod wlmt Ihey miglit have disputed, provided their attention has been fairly oa'-.d .0 it, and they have not chosen to question it. It is necessary iie\t to illustrate the application of these general principles to particular cases. f^ECTIOX I,-CASKS NOT INVOLVING ANY TOUT OK FRAUD. .l(/m/ssio/i.s.— Admissions niadv-^ by the servants and olliccrs AdmiMioM. of a company in the course of their business and rclatinfj to matters which it is llicir duty to transact are adniissible in eviilenee against the company (a). But not other admissions. In i'/'i' D'Tiilii Provident iiohl Minimj Compam/it case (/>), a n.v.iia, kf., speech bv the chairman of a meetinn- k Siu. 7(58 ; and see the next two . ''m Tnumuf, (',,, 18 g, i>. d hi 5, ,i„tes. l'') 22 011. I).r.!i3. (,,) Sr,. K,- jHtrtf Th>- l.upn.lnt,.,-^ ;' ^'"''""' '■'"•)"""'-", 1 7 ^\•. 1:. „ftke. liritUh X',(ivn,,lc A*WiMitio„, ' „ H Ch. I). ()7!). ^)l^m^l V. .ViV/,.,//.,., (i If, !„ c. 184 MAIHI.ITY OF COMPANIKS FOR A<'TS OV TIH'.IU .UiKNTS. I All it nil ion cuui|>a:iic:i. Bk. 11. Chap. 3. cjin bc oonfoiTod on dircctorH by a mocting of sbnrolmlders has been luucli discnssoil, and is scarcely yet settled. Such ., purchase gem "ally involves the assnmpticni by tlie pinvlmsiiit; company of the -^'bts and liabilities of tbe scUiiif;; compaiiv, and it is diflicult to bold tbat a transaction of this kind is one as to which a ninjority ought t<) be able to bind a minority (/), The anuilgamation of insiu'ance companies is now governed by 38 »*i- 'M "N'ict. c. (il, and 'M S: 35 Vict. c. 58, as amended by 35 it 36 Vict. c. 11. See further iuj'm Sah's, and Book IV. e. 2, § 1. Arliitraiiou. — The question whether tlio directors of a com- pany can bind it by agreeing to ref'. r a dispute to arldtrntidu has not been decided. ]5ut the powfu- to bring and defend actions involves a power to compromist' tlu'ni. See injhi, ( 'ompnnnixc. By the Railway companies arbitration act, ISo!) (2 (//), comi)anies governed by that net are also cmi)owered to refer disputes with other ci'inpauics or persons to arbitration, in accordance with the iiuihvay com- panies arbitration act, iHill). ^Vhere a Cdinpany has entered int(» an agreement wliieli i^ ultni ririK, any agreement to refer dls])utes arising out of it tu arbitration is equally iiltni rircs (/). (/) Coinpaif iiiMiu thin .-iiliject tlic juilgiiK'iits in till' cast's nl' tlie AVa A.i.'iiiranre Sor., 2 .1. k ]\. 400 ; and of tilt' Stixon Liff As.-nmnici Soc, ih. 408, and 1 Dc (J. J. «.r. Lift, <{•,•., .SV,r., ;t Uill'. :)2I, ami 4 De C. F. ^V .1. :m1, til.' i.uw.r I., purcliase was CDnlVrrcd liy tiie deed thr Coni't. ol' scitk-meiit, and ste Arijii.t Liji: {li) §§ 72 and 7;3. yl««. Co., 39 Ch. I). .171. r.nt even an (i) Maitiwll v. MidlvidOnol express jiower t.,' lliin. '"v M. 1'3". not ciiaMi' ilin-'tnis to («txv tliiir iiwn .-lian liiiMii's to take slums in aniitlu'i- ( oinpaiiy. JH'jij'^ f'^s - Hem. >Sc J[. (;:t7 ; Kx pari-' Bii'jsluw; 4 K<[. :U\, anil see, as to tlie con- stnietion of .sneli iniwcis, ^7(iv iI/m' Jl'orth'.i tvi.sv, 4 Ch. C'^^-Jl; ll'i"l: '■( Hiiiiln.[). ■Ij: ,(• l>. /i'<(<7. Co. V. >'. !■:. /'"('. ' , 40 Ch. D. 100, as to jurisdiction "\ :ASES not INVOI.VINfl ANY TOUT OR IRAUP. 185 Bilhofcirhtmirdud promissory nod'H'—^^'^^cihcr dirrctors, Hk. |J; J^'-j-'P- 3- sfcrctnrirs, or nuumgcrs <»f comimnics liavo implied power to >iv,ivv»«' J >- ImiIh of Colli- bind the comiianics to wliicli tliey boloiig liy bills of exchaii<,'e ^,^n^,^ ml promissory notes, depends partly on the statutes relating to tlie privilc^'t'S ni' the P.ank of Kii^daiid ilc). But wliere these stiitiitis do not apply the power depends on the nature of tlio (oiiipiiiiv. If its business is su(h that it eannot be carried on ill the ordinary wiiy without the use of bills, I'ce., its directors liiivo power to (haw, accept, and indorse them in the name and „ii litliiilf of the company (/), in the ordinary course of the compiiny's Imsincss (//(). Txit if its business is not of this 'kwription, tlirro is pfiiiiii tac'n' no sucli ]iower in). This has ken diridi'd in tlic cases of a salva>,'e company (o), u miniiif^ (vnipaiivi//), a t;as company u/t» iv wasliinj:; conjpany (r), u salt Slid idkidi iiiiiipnny (s'^ a waterworks company (/), a cenu'tery iiiiiipaiiy(»i, a railway company (.r). Wlioro the directors of a conii)any have power to bind it livliills mid notes, a liill ni' note issued l)y them improperly but I'.i the name of the company, is binding on it in favour of any hm fuk h(dder for value without notice of the impropriety (i/). ii) As M which see ((«'-', p. \'M\, linite(/). (() >"ev J.U- Parkf, P., aiul l;..ll.'. '..in.V'iwr ij' Lmllinr v. Vhitrltmi, IliM.iW, M'l, ami ptr liest, J., iu j £r(.«;;/i.V.ii V, Miuich''.'v A. 1. S,'i', lab, J/iiiTiiy V. A'((s( liidi'i Ci.., .') i*. M; Pmimn ]:„il. Co. v. jni'iiii.s if'-., Ins. Co., -2 Cli. (ilT ; \hf<,Tt({'it,ji;,ud;:\ i'h. 7.-,s. (ill'; i^n^ipmu rhii„i, Mi ( 'li, D. ;";Tl;e Bills of Kxiliaii-i- uoi, |15Ji!, ilo's nut cxti-iiil till- ]in\v(.r. ) Tlfi'ipm v. i'liimynl SilviKf [('., 1 h. m. ]lHd-mm V, V(d}iii, 10 ]!. it |l' 128 ; LVmn, y. /Vix I(! M & '".2o2, (>■) XaiU' V. Tmtun, 4 l^irig. 14!). {s) Hull V. MonlL 12 A.&K. 74-); 8('i' the jiitl),'iiieiit of ColiTidj,'!", J. (0 llrmitjhton v. Manrlifstfr, dr., iriil-nroiin Co., 3 11. & A. 1. (i/j Stnle V. Hurmer, 14 M. & W. ^'.W, ii'Vi'iNfd, Itiit not on thi.t point, 4 Kx. 1. (r) llnlruuin r. .Vi,/- //',(/<•.< Hail. I'n., L. 1!. 1 V. V. 4!)!>. Coinpiire I'^nniiin UnU, Co, v. Tlntmni, «(r., /((■.. '.'., 2 Cli. (317, wluTt' tlie ji'ivvfr wiis lu'lil to bo confVireil liv tin- f,'(.'iic!.tl wonls of tlie iirtic!e^< of assoiiutioii. (;/) E.r j^trt^ Or leii-l, liuine\j, d- Co., 4 ("li. 4(!0 ; (lordiin v. i>ea Fire (Oil/ Life AsKuntm-e Co., \ H. vt N. f.!t!»; nomjmn v. The n\'dfmn XncAjKiprr Association, 8 ('. J]. 849 ; .lllfii V. Sm Fiir and I. iff AH^^nrancf <■'>., i» ('. 15. f)74 ; Forh,:, \.M,ir.). And a contract by one railway coiui)uny with another, to the eilVct that the first shall take a lease of the line of the second and pay the expenses of an !ii)p]ication to Parliament for an act extending and improving such hnej has been held illegal and void (c). liut in ii move recentl case, it has been lield that a railway eompnny is liable tol pay for surveys, plans, ^c, made by order of its dircdursl for the i)urposc of an application to Parliament for an exten-| sion of powers (il). Bonds, see bijra, Borro'vinfj money, Debrutitrrs, MortfjiKja. Borroubvj moiu'if. — One of the most important questions respecting the powers of directors, and one wliidi is constantW E. & 15. 1. See, also, the Jiult^'nient of lIolMvil, J., in :{ 1!. v'v A. 10, and ci^miiare Sturh w Hiijhjad' Arrhcdij Co., Tj Tannt. 7!)2. In Aijg'i V. Xuhol.ion, 1 II. & N. 1(1.') ; and /-j/('?i;.s v. Milrosr, 2 ih. 2!)3, and 3 ih. 177, the imint decided wa.--, that the defendant.^ were nut per- ponally liahle on the notes thi-re in tpiestion. The.se ca.-;cs hy no means decided that tlic lunipunie.s would liave been liable wilhniit proof of authority in their directors to issue notes on their Lcludf. Tlie mar- ginal note.s of llie rfporters go too far, anil are apt to nii.-lead. In Jlalfonl v. l.'auiiron's C'dlhrotkr, dr., Co., IC Q. B. 442, and Edwardu v. Ciuniroii'.i ^'niiUiri'iihr, ifr., Co., G E.\. 2(>0, the action w.is ajjiiiiist tlia (onipany, hut the amlmrity of it^ directors to hind il ly l)ill< wi-nd in issue. (;) Hills of E.xcliangc act, 1% §23. (a) Tiifni, V. l, § li. {h) In/m,Bk. III., C.J, §2. (<•) Kii.'^tiiii AiKili'iH Hftil, I'll Kii!i>cni Ciiiintif.s Iliiil. Co., 11 ('. 775. See, also, M'Uregm v, I'M „,ul DmI llaii (\>., 18 Q. lU'lSj MaiinscU v. Midland (Imit U'cstft Hail. Co., 1 Heni.&M. 130; T-ii/fe V. CIt'thixUr (ind Midhir.•■■' sin the iieM note la Ilk' CASES NitT INVOLVING ANY TOUT Oil FIIAI'D. 187 fflsingiupnulin', is wl.cthor tliey cm borrow money for tlu-ir l»k- II- Ch«i'- ='■ company luiil render tlu-ir (■.)inpany HnMo to repay it. Whenover tliis riucstioii arises, tli«' first point to determi'.e is TV.rrowing «/<-<« fflutlier the company is one wliioli cannot lawfully borrow ""''' mom'}- at nil, for if nH borrowing is uUni rlirs, it follows tbat it liUiiiiit l)C liiible as debtor (<) to repay wliat its directors uiiiv Imvc nssunu'd to borrow for it (./'). Siipposiii},' llmt nil borrowinf,' is not ultra r<'/v,s, the next puiiit to (litcrmino is wbetlier there is any statutory or other limit to tlio aniotuit which may be borrowed ; and whetlier this imiinmt lias been already raised so as to render any further exercise of the power to borrow, not oidy irregular and inijiroper lis m I'Xiosjs o( antliority, but wholly iiltni liirn. If this be the case, it will ngain follow that, to the extent to which the Wvowing powers liiive been exceeibMl, the company will not be linblf to repay what may in fact have been borrowed in its name and units civdit (.'/*. Siipposiiiii, thirdly, that borrowing is not tdtrn vires as re- r.orrowin;' ganls the ronipauy, its liability for money borrowed in its name will (lepeiiil upon whether the dircetoi's bad authority, express oriiiipli('>l, tn bcirrow money for the company; for if not, the I'ompaiiy will not bi' liable to repay what its directors nniy in tii'tliiive burmwfd for it, uidess the comjjany has ratified the liiilTOwilliJl/;). Supposing, lastly, that borrowing is iiilnt rircH s'> far as the I company is (•oiic(riie(l,iind that the directors have implietl though noixpress authority to borrow, and they do borrow money for and on iK'lmll' of the <'oiiipiiny, then the company will be liable to repay it, unless there has been hojiic exees« of real authority [h.iwiito the lender ()' I. Cases in uhiih the direetois K>i u eompnny have power [to Ik.ituw, una do borrow for and in the name of tho W As t^, lialiililv tW 'iiiplicalin ii-iiig hum aiiil It App. (,';i. s:)7 ; Hdn/itca lt'> n- jtlie 'n'pHailinn Ml ih,. i,;oney, sec lock v. L'lrrr Dee Co., 3(5 C.'li. I>. r'^'''';''' •'• , ""•"'. ""I^S i"d 10 App. (.'a. 354 ; niul I (/, .'/j..!/,,!! Af.ir.uia: l'„. v. see fiwtlicr on other points, 3ft ( Ml. P""hM,V, l:i M,,.. p. C. ^7, n.^l ,). .,34^ .^„- ;„; ■,, ^.-^^ ^,,„, y,^ i>_ ,;^ BtlltCto'S in tlm „... 1 „...., .. ci-i'S iu llie iie\t note. (9) r>'iui)mrn Biuliluui So,: v. I), ins. (h) S.V ,ni^, Hirt, v'^ii-.. 17.'), ^.v (t) fcJte Und. 188 l.IAUir.lTY OV COMrANIKK I'Olt ACTH OV rnV\U AdKSTS. CASKS N'Dl A|>|ilii'iilic>n uf the iiioiicy. Bk. II. cimp. 3. conipaiiv, ^'ive rise to no (lifticulty, and need not be further Sect. 1. ,, , 1 ftUnuc'l to. Apiin cases in wliich the diroctors of a .\)iui)any borrow ns principals, and not for or in the nanio (k V. liiirr !>< V, ( 'iiiiMi; Hrooh In tlie lidnnirmi puny was lorint'd tn luiil was enipowcrcc ihi'i'Ctor-i hoi'rowcd previous mort|,'at;c Hj,OOW. and intercs entitled to recover appHed in payment properly incurred {m) The horrowing p( strictly defined by sti to borrow money up enable them so to (b rules there is no powt is borrowed by the ni! itseh' is not liable t maniigei's are pcrsoiii express enactment to liiiiitinj; the borrowing is borrowed beyond tin fj 10 App. (.'a. :Jo4, am 1). 675, note, and 1!) (, 155. See also, LmhnvnerS: dmm L\ v, Aihfonl, \i\ 411. (»') See as to thi.^, infra, • (N)3:&38Vi,.t,c. 4->,§; 3^ Vict, t. 31). ('^'Tbeniles need not tli( '""'"'"■•amount: Mnr.au ''•^l'l'.l^'^>.51'J,and 21] Ch. ™'j >m., (htardMn /V '^"<'''- '^'•■■: Mutual Ai,inu f ^'1'- D. 182, and :10 i '■'""J V. Rr,;J, r. Ch. 4. wtli-riliea overrule i/iV/'^ca '"■>, and /tanV rnsf lo j ^'' ■'* to tl,e (lilR.ren," 1 ^""'^«'i,.- nionev ana r, (•ASi:S NO I' |NV(iI,VlN(i ANY TOUr OH lUAUU. IHd reci' worn Y. ( '«" nt and instiiu'tivc ( ky.ltkerlhr ('<>., nn lilfi', lirookii .(■■ ( '<>' locisioiis on this point are /;(irr)Hf«« '"«. IJ. t:iiai). 3 il 77i(' lihtcldnini liuildinif Sncictif t. 1. Ill the Ihtroiiritii K m loi'k V. 77/. liinr Dcr ('<>, (/), u ann- it, w. iiiiiv WHS : toiiiit'd t.) iiiiprovo till' nver I'fo iiixl imu I)« (Is adj oiniiii; liM-k c. Uivcr :iliil was tMniw)\V(iV( I to l)()iro\v '25,000/. on n»(>rtf,'a|^'c 11. ^' l»oe L'onnMiiiy. ctois biin'i>\v<'< imis mortgage I Hr),()00/., whicli was applied in payinji otV a of (50,000/. In an action to ri'covor the s,j,000/. imd interest, it was lioiil that tlic phiintiff was only tiititliil t«' recover 25,000/., and so ninch niort' as had hecn lieil in paviuent «( debts and liahilities of the company appl pi'ope I'lV piiy incurred [m). Tiio borrowing powers of hcnefit hnildinj^ socii'tios are strictly dofiiu'd by statute («). Such societies are empowered Id km w money up to a certain limit if theiv certilied rnh's eiiiiUi' tluiii so to do (o). lint apart from the acts and the mles llii'ie is no power to borrow ( y»). Consecpiently if money is borrowed by the inauaj,'('rs of the society for it, the society itstlf is not liable to repay the amount (q), althou^'h the iiiaiiiigt-O's lire persoimlly liable to repay it by virtue of an express enactment to that effect (r). So stringent is the law limiting! the liorrowiug powers of tliese societies, that if money is burrowed hevoiul the authorised amount, and the amount so siicic'tif.H. '] I0.\i)p. Ca, :]:,i, iiiui 3(1 ell. 1). 675, note, iin.l 1!) Q. li. D. 155. See also, Luultiwufru, ((v., In- (hme (.'<. V. AihfonI, li; Cli. D. 411. (»') See lb to lliis, i;i/n(, r. '>. »3"&38Vut.c. 4:.', ,<§ !,•>, 1(5; 35 Vict. c. 3D. ("; The rules iieeil imt thuiuselvi'.s limit the aiiiouut : Mnr,\tii v. Srofi, '*Aiiia',i.r,ll»,iuul -JiiCh. I). 440, ««'' «"W., HimriUan ['enmtufnt ''"•'■^''- ^'■■■■, Mutual Aul lUiiU.Soc, ^ ''!'• D. 182, mA 30 ih. m ■ '•"'"1/ V. ifcv/, r. Ch. 4. These attlh'.ritiea overrule /fiVrs owe, !)K.i. I""', ;ni4 /MnV fw, 12 Etj. '.HI. ^^ :l^ to the (lilferenoe Lrtween '"'win^' iiKin.y uii.l iveiMviii" money lor share-i in advance, '»'i««r- iliiiii, lir., Jliiildiiiij Six-., 23 Vh. 1). ].. 4:>:j. (/») Hee, in luMition to the ca.ses ( iteil below, AVji? llttufit Uuilil. Sim:, 1 Dr. >.S: Sin. 417 ; Kx imrte irUliam- i^'iii, :> v\i. ao\). ('/) I'hiiplfo V. liriDittcick lluiUl. Snc., fi Q. B. I). 69« ; niackbum Ihiild. >'(,(-. V. L'iitilill'i;lJiuoh i(: l\>., cited below. See also, Ex parte ir„hon,2l g. 15. 1). .301, where the si)i iety tui|iiirt'(l borrowing' powers ami tlien ^iive a note for money l)reviously borrowed. (r) 37 & 38 Vict. c. 42, § 43 ; Chapiro v. Itrtinstrick Iluil'l. SV., ufii ■■m : Lookif V. lyriylfy, i) g. 15. 1). :{;tT. 100 MAIIIT.ITY OV COMVXSW.H I'Oll ACTS or Ii:.;il! AdKNTs. fASKH Nur llliu'kliiirn IliiiMiiij; Sivioty (•, I'unlilTe, HruokN iV Co. WaUoii. Ilk. 11. clinp. :i. iKirrowed isaotimllyrcpnid outof tlii- fundsdf tlicsdcictv, suiIhih : application of tlic funds \n iiltrarit'iH, nnd the nniniintso ivpnj,! (•nnl)on'Oovi'iTdl)ack Itvllic society from the lender nf Hiomyi,,,,. This vus decided in 'I'lir lihtcklnini, ,(i., liiiihlhuj Sov'wUi \. (' u III i (]'<■, linnihH ,(■ Co. [m). It hud heeii previously dccidod thiif the hankers coiild not recover the aniounl of die sociotv's overdraft nor hohl securities f^'iven for it except to tlio cxtnit to which the moneys advanced had been properly npiilitd in discharging liabilities of the company (hh). It has also heen decided that where meney was burnnved for a building society which had no power to borrow, a note mm\ by it for npuyment (tf the money was invalid, aUlioii"Ii the society had acquired power to borrow before it gave the note {t\ There was in this case no compromise and no consideration for i the note to render it intni viirH. Tlie note was clearlv not given for money borrowed when there was power to lionow ; | there was no fresh borrowing. Passing now to cases unatVected by the doctrines (4 iiltm\ vires, tlie directors of ordinary trading companies, whose n"<\i- lations are silent on the subject of borrowing, have an implied power to borrow for the pui-poses of tlie business of the com- pany (h), but the directors of (»ther companies have, it is cuii- ceived, no such implied power (x). A power to borrow is so necessary to a banking eomimiiy tliatj its directors can scarcely be deprived of it ; and there are several] cases in the books in which their power was held to liave been! exercised so as to bind the company (»/). Moreover, although the J directors of a company may have no power to borrow, power sol to do may be conferred upon them by the shareholders; fori this is a matter as to which a majority can bind a minority (^j Iniplifil jiuwor to boTrow. (s) 2S) ('h. L). !>02. ((/) Hunk of AuMndasia v. IhM (si>) Cunliffe, Bn>nks d: Co. v. llhu-k- lit, (5 Moore, P. C. 152, and 12 JurJ bum liuihi Soc, !) Apii. C'u. H.")7, 18!); Maclae v. Siitlt(rhinii 'i V^ii and 22 Ch. D. (il. 15. 1 ; liOijal Iliil. ll,ink\. Titnimiid^ (t) Ej-piirteJrutsuii,2[Q.B.p.^0l. 5 ib. 248, and G ik 327 ; Uallurn^ (u) Ex parte Pitman tb Edicanh, case, 18 Jur. 885. 12 Ch. D. 707, and tlic next four (z) Bryon v. MdropvUtan Sah», notes. Omnibus Co., 3 De (J. L J. U3. (x) See the judgment of L. J. to unincorporated ImilJing sooietia Bowen in 36 Ch. D. (js.j, note. aee 29 Ch. D. 902. \si;s NO r isvoi.viNo ANY Tunr ok rnAfi>. lit I ,S In irrow Fiirtlier, i conipany injy is ultni c/nw iis rcKanls the c.inpany itsolf. "!<• y^J"l'»l'- ^ f thi' (liivrtors liavo alniuly i)ow«>r to d wlmtover the itsi'lf ciiii tl", <'''^ iiicliiilrs 11 powj'i- to borrow (fi), rins. Moreover, a special power given to ifto borrow IS i»i/ni till ,, ,liivct(«rs fo Ihmtow to a certain extent does not preclude Imrrowin^ to a {greater extent with the the cMiiiimiiy from siiiii'tiiiii liorniwiiij,' inu f the sliiirc'lioMirs (li). w rtsthc creation of the relation of debtor and W)iiii is ».or. mditor, mill wluncvcr money is olttaiiicd upon ternjs whi<'h tills ri'liitioii, there is in substance a borrowinji ; «■.//., riiwing. proi ullU'O ovtnhwvini,' u banking account is borrowing,' (c). Hut niort- pajji', ami cliiir<,'es nniy be cn-ated on i)roperty, and the remedy ofilitlemlcr may be confined to realisiii}^ his security ; whether Slick securities luv valid as aj,'ainst any particular company, iiuist be (U'ciiled upon the principles already explained. But ulure direetors have no powir to borrow, they have no power to nusc money on such securities, unless such power can ho shown to exist ((/). It is not, however, every transaction by tlikli niuiuy is ebtiiinid that can bo considered borrowing, evtn idtliuui^h the transaction involvi'S the payment of money ^ klk' person who obtains tiic money, to the person from whom 1 it is procured ; the transaction may be a sale and rehiring, and I sucli a tnuisaction, if boiiii JhU- ami not a borrowing in disguise, I will be valid, iiltli(m;,'h there may be no power to borrow (<>iitnn Saloon the capital of a liniitedjoint-stock company had been expended, *"""""' imriy. {i]h^nilm sum CUpiHr Cn. and Crfn Cilmi Muiing Co., 7 E,mT/ V^Momiro.y.Ashfnrd, KiCli. "" "'iWo"'v. .S7ui,v', H E.|. .-,01, above. ((/) See liaroneM ff'eulock v. River Iki: (Jo., uhi supra. (lUi) Yorkghire Hail. Waggon Co. V. Miidure, 19 Ch. U. 478, and 21 i>'., 309. (e) Ex parte iratsoii, 21 Q. }i. 1). 301. (/) 3 I)e 0. & J. 123. ae 1112 Ilk. U. CIlMl ^oct. 1. Obtaining gomls on crt'ilit. Exercise of power to borii'V T.IAI'.IMTY OF COMrANIKS lol; ACTS (U^ 'rilEIl! AU1;ms • niul a iiiiijoiity ct slmrt'liolilers proposed to hoiTow iiionev m tlu' credit of the eonipniiy. A dissentient minoritv solicit to restrain tlie ninjoritv IVoin so doin;,', and reliunee was placed on the doctrine that the capital of the company cmil,! iu,t ],(. increased hy hoi'rowin^f money withont the consent of all t|„, shiirehohlers. IU\{ it was held competent for the innjdiitv to borrow nione_\ on the ci'edit of the c .mpauy, and that the doctrine rclie*! on had no application to the case ; the capital of the company being one thing, and that which was smi^jit to be increased by borrowing (viz., the cash in hand) beiiif a ditl'erent thing. The ditiVrence between borrowing nioiit'y and prociuini' goods or services on credit is nt)t only obvious (idied to the mine [lo, bnt not for money borrowed (i'l. An authority to borrow does not warrant the issue of debiii- tures except to secure noiiey lent or to discharge a liabili'/ |/,i; )ior does an authority to borrow on the security of the fumls and [)roperty of a company justify a mortgage of its unealliil- up capitaU/l ; but future debts may be charged by wav of security {iii). AVliere directors luvve power to borrow on mort- gage but Udt on bills of exchange, a nu)rtgage to secure nioiievj biirrowed and for which bills have been given, is nut invalid (;/) is(i ; llrotrii v. Jlijirs, 1(1 M. iS: W. 2."i2 ; Ili'liliiH V. I'liinpliiU. e, Kx, ('■•Mi. (/.) Inna ■>/ ' 'nurt Hutii ' '<)., ; aial see A'//(;/ v. Mirihnll, I] j lieav. ddf). Call.-; actually 'iiia:le, (libbs mid H'vat'i m.-, In E.|. lil:'; j Smihij JlrcK'l: I'oal t'/., No. I 381, ami calls actually (litd'miiiedj to lie nmdc, ait'idii;,'!! iMt ii.tiialln made, S'liil.iii Ihvok Ond ('"., ^>>.\ 1, '.» K([. 7:2!, may lif mort,'a.'o«r- I^^. IT^Chap. :i. rowed, a dobt is contnictod, although the security given for it may be iiif')nnal ((>)• Whore the directors of ft company have power to borrow, Loans l-y , * ^ ^, , directors. there is I'otbiiii: now to provinit ii loan to tlio eoini)aiiy by one ofthemseh-es{;>)- The validity oi securities improperly issued depends on tlie v.ili.lity ..f 1 • I T/- xi ti .1 seciiritien iiii- principles above explained. Tf they are ultra nrrx they nre properly ismk-.i. invalid iiikI -.vortldess even in tlu^ hands of bomi Jhlr liolders for value, except so far as the money they represent cMn be i-ecovered bv reason of its hixvini,' been applied for the bcntdit, of the eom- pany(fl). But where the doctrines of ttlfra rircs do not iipply, securities which arc improperly issued are invalid in the hands of persons having notice of the impropriety 0"), ftnd also in the hands of their transferees if the securities are mere chose.' in action oud are not negotiable, and if the company is not (Stopped as arrainst such h()lders from denying the validity of the securities (s). Rut if the securities are negotiable (M, or if they create a legal cliarL,'e (ii), or if, although they are not neootiable and are mere choses in action, the company is estopped, as against a 6omi ^/('r/t' transferee for valuo without notice of any impropriety, from disputing their validity (x) s\u-\\ a trans- feree can enforce them against tlie company. Borrowed or loan capital I//) may be properly referred to in '•'"rmwo.l ^ connection with this suhjeef. Tiie right to raise it depends I on the principles already alluded to. There are, h '•-ever, I several very important statutory enactments rehitiu' .o the capital. ()) Soe .Sfram/ Musu- ITall Cn., 3 Co., 38 C"li. D. 156. DeG.J.iJ'u. 147; /.'.wi V. .-Imi/ (s) Athen.rum Lip .!.«. Co. ▼ |«n.2%;/;..fer'« r„,,v, 1 1),. & the poin*. has btvu found.' in^5;,; Uum,y. i:,. ,.„,, 5 1). (i. u) As m Homjurd 1 \u,nl Co., Ca- ■a. oiii. ,41; .... ■ ' rews claim, 21 I'h. D. S. ; irefib )^_^>^'■m|(.,p.Ir,2,,^„,;^,„l;„y,„^ ^ Commim»Has „/ Jl-rnc Jiau, L. ■"JmJ.m.,,, ,1,-., /,„/,;vur« Ii. 5 Q B 64-> wS '";■''• "•'•"• (^>^^ to Ua. n.. „!■ ,1„. word "'' V. raUnt /cor., .f-c., " capital" Bee bk. lii.. c. :!, ,S I. o ^^^. 194 LIAUILITY OF COMPANIKS FOU ACTS OF THEIU AGENTS. CASKS NOT r.v. II. Chap. 3. borrowed or loan cnpltals of companies incorporated bv Sect 1 1 —- special acts of Parlianient and governed by the Companies' clauses CO isolidatiou act, 1815, and these enactments require attention. •s A & Vict. c. 16. ^y ^'^^ ^^^ '" question, railway and othor companies governed by it are empowered to ra;se money by mortgage or bond bv the order of a general meeting (:). But this order is not essential to the validity of the securities issued (a). Tlie bonds or mortgages nv.ik pari passu as between their respec- tive holders inter sr, without reference to their respective dates (b). A register of the bonds and mortgages is required to be ktpt, and the holders of them are entitled to in>i register [c). The bonds or mortgages are transferable bv deed (r/), and the transfer must be registered in order to com- plete the title cf the transferee as between himself and tiie conn)anv ic). 'I'he interest on the bonds and mortcfases is payable in pni)rity to dividends to shareholders (/). .\s regards repayment of the principal sum, a day for repayment may be fixed in the bond or mortgage, ov no time for repay- ment may be fixed. If a day for repayment is fixed the prin- cipal sum then becomes a debt for which an action may be brought (_(/). If no time be fixed the creditor may call in the money twelve months after the date of the bond or mortgage on giving the company six months' notice (/(). The compiiny may pay it off on giving a like notice (0- The most efiectual remedy for enforcing jiayment is to obtain a receiver (j) ; and if the special act authorises the moi-tgagees to apply for a receiver, they can obtain one fvom two justices of the peace (k). (z) 8 Si 9 Vid. c. ]C,, §§ 38, 39, (g) § W. Price v. Great IVMtn 40. " /iVZ Co., ir, M. ^tW. 244; I't/m (a) Fountains v. Cannarthe \ ({r., v. East Anglian Rail Co., 5 ts, Rail. Co.,r> FaiSIG; Romford Canal 280, bIiowb that a transfi .w can Co., 24 Oil. 1). 8.''>. Biie in hi.s own name, See infm, (b) §§ 42, 44. H.o Ilnwen v. Bre- con, dr.. Rail. Co., 3 Ecj. 541. (c) § 4:.. (d) § 4(5. (e) § 47. Sec Doe v. Jonfn, fi Ex. 16 ; Lane v. Umi'li, 14 Ucav. 49. {/) § 4«- c. 7. {h) §51. (t^ $ 51. (j) Infra, c. *'. A bond creditor i must lirst recover judgment. (it) §§ 63 & 64. CASKS Nl>T INVOLVINii ANY TDUT OI! I'ltAfP. 195 The Railway compaiiios seniritit's act, IHGO (/), also oi.n- '''^- l^^|'''j'''- •'• tiiins iiuportiint i>r(>visi(>iis relii'ng to tlic rcj^'istration of- - — prrsons authorlst'd to isstu' securities, to reiideriii',' aecoimts ofloim capital, ftutl to the eiKlorseiiiciit oii hoiids and inort- ffw? of certain particulars in order to prevent owr-issues. Tlio Railway c'Miipixnies act, 1 HOT (/»), protects tlie ndling ^tock of railway (■iiiu[)anies from soizurc (»), ui'd declares that iiidiiov berrowed on mortgage bond or delienture >t.Mk under any special act shall have priority over otlier (liiims arising' after Augu>t. ISO?, with some few (>xcop- tions (d). This act was passed after the decision of Ganhicr v. Lnnihm, 'i;«'.ln.r r. ' ; Loii.liMi, ('lia\- Chitkam ((■ Dovi'i' Rdiliraif Co. (]>), whicli settled that niort- li..in, mu\ 1>..v.t pi«e("= of a railway company's " uinh rtaking " are not entitled j,,','',v*''^ tu any specific clinrL'c upon the company's stock or ^^^urplus Liiids, but are only ciititleil, :- long as the company is a pojng coticeni, to a receiver of its earnings. The et!"ect of the !"-v j' ity clause just alluded to does not atVect tliis decision; Hi.! notwithstandinL; that claus( . a judgment creditor can obtain a sale of the sniplus lands and payment out of their proceeds in priority to uiortgagees of the company's under- taking t^K Tlie clause in fact only comes into operation \>hen tlOTti> a receiver of tile earnings, when there is u sdieme of ; .mangoment, and when the company is heing wound up under , ill' l!;iil\v;iy nbandoiniu'nt act (r). I'ckiit'ire stiM'k is nu'rely borrowed capital eonstdidated D.'i..-iitiir.! !'■' one mass f.r the sake of c..nvenienee. Imteiid of each Itiuler liavinr; a sepiU'atc bond or mortgage, he hm a certificate Iratitling liim to » certain sum, being a portion of one large jWii. Tho debenture stock of I'ailway companies iind of other jcuinpanies created by special act of Parlianu-nt an k. ('j29i30Yi,t. c. lOS. W30i31Vi(.t, ... 127. ("i M, au'lscciji/,a, c. 7. («)Ib, Tlie fxccptiuiiK are nia- »^'':-" crantcl „M,|,r tl,. \,,uAt '''"■-■8 'Vts, reus pHv,il,l, „„ ,,.,, '-^ claim, for luu.i, uk,„ ^, hijmioiisly utrt'CtiHl. v/0 2 I'll. 2ol. Tliis i. till- lead- iUp' cast' (111 tlii'sf securities. ('/) Ifidl, llnriislm, tlv., Hail. Co., •toCii. i> II".). [rj 11)., and see oi/ni, hk. iv., <•. 3. o 2 10() MAniLITY OF COM VAN IKS FOIt ACTS OV Til Kill A(ir.NTS. CASES X( V.k. II. <'I.!i Sett 1 (.'liorinc!-. Coiii|iniini- DcKontiuT'-. !'• ^- 1\v ft varioty of strttut»>s of which the principal arc the Com- ■ panics' chuises net, 18()3 (2(5 A: 27 Vict. c. 118), the llaihvav companies' socuritios act, 18G6 (29 it 30 Vict. c. 108), and the Railway companies act, 1867 (30 & 31 Vict. c. 127), to which th<' roa. IHl ; see ('nnli[f> Brooks <{• Co. V. Illnrhlnirn liuildiiui Soc, 2-2 ell. \) <;i, iinil Ajip. ('a. 857. (i/) /^.'^'(> V. Lord Ehurij, L. R. 7 H. b. 102. (j) See l.o'hr v. U'ri(jl<>y, !)(,). 1',. D. 31)7 ; I'h'ijilio V. Hnotsu-irk lUuUl. Soc.,Gi). 1$. I). (;!»(!. (y) Jkilh's ct»<; 8 Ch. I"). 3.3.1 ; Dixon'.t cnsf, L. R. T) 11. L 618, Lonl Wt'.stlmry. (s) Jiritifh Italia Steam .V.iv. v. Commimoncrs of Inhvul /i'«i''iM< 7 (.1 H. D. l(i.") ; KilwowU v. M Fnrwins Co., 30 Oil. D.-^''< V. Ahercoi-rii Slate. Co., 37 C'.i. 2()0 ; To] ham v. (^rmmt BHck('o.',-M C\\. !>. -M. (.1) See cases ia liwi .-ind -uoc« ill'' Il(it(:9. taking or tlie gcii given is wlint 1ms 1 charges (he proper (lof.s not prevent 1 ill the oriliiiary co tlir coiiijtaiiy, lifter iiinrtgiigcs a sjiccific (if its business, or t raiTV nil (hat Iiiisiiie no(iceof (he ])r(.v'ioi uer the debeiitiu'c receiver bv a debent vinding-uii, (he float luuidie chiirg'e (Iicm cciii])aiiy existiiii: at ivliifh has not been c The validity of deb debentures or in Ij. u vioibh- i»ii,,,!, dc^pei,,! '»«««('''. Where p„i Reissued at a discoiiii What are called /./ sealof aeoinpMn\', r,. its illilchtedliess t,, weiiiiiit to pav liin, ''"'^'"-lMiau Bad; h) Ch : ^^'^nwlflhuUaw I- I ^•■.34(:i].U]4- !^!^r r. An,jlo.It„,,., fj!^' '-'■''• I'. 707;// f"'^'""- -"•"., 21,, '1. ^'< ''' '•!•• b. 730 . ■ CASES NOT INVOLVING ANV TOUT Oil rilAT!l>. 107 ,,kin? or the gcnerMl ,.r.in''• pvciils whnt lias boHi callHl " a floating socurity," that is, it - - - - — cIiiiFc-tlic proporty of iW conipnny for iIm" tiin<> being, but does' not prevent the company from drilling witJi its i)r(.i)crty i„ the oviliiiiiry course of its business (h). Consequently, if tli, ooiiipny, lifter having issued debentures of this luiture, iii„rt(fii"(s a specitic part of its prop(;rty in the ordinary (\>urs«' „f its business, or to obtain an advance of money necessary ♦(» ,;iiTv.'n that business, the specific iiu>rtgagee, whether be Inul iinticcof the p'vvi-ms i.^-sue of debentures or not, luis jiriority Lir the ihlieiitinv-holdcrs (<•). ( »u the appointment df :i iviTivei' bv a (Iclientiin-hi'lder, or cii the comuiencenient of a v.imliii^up, the tloatiii^' nature of the security is at an end, iiiiil the I'hiir^'e then iKC'nies elVective on the proja-rty of the cmiipiuiv existing: at that time, but not as a rule on cupifal v.liidihas not been called up ('/). Tke validity Mf debentures given by way of renev.al of former ilibeiitui'C's or i;i li-u of bills or bonds of tlu' company pre- viously issued, depeuls on the validity of suidi former instru- lutnts {('I. Where power I xists to issue debiutures they may be issued at a discount {/' >. ^Viiat are ralltd /./. //i/'.s I'ninh arc instruments under the LLyW \,.,n,iu. iial of a Company, (.lUtaining an admission by the comitany of its iiiilebtediiess to a s])ecified amount to the obligee, and a '"veimiit to ]iay biiii Mich amount, with interest, v.v, a future (i) Sw hlH({mt, dr., Mail Co., ,"» lli,3!5 ; MuriiK Mamions Co., 4 E'l. *l;.Y.i'' K'hjdtidi Vu., (i Va[. 514 ; '■■'li-^diT \. I.oul Chiitloim mill h'lwRcii, 2 (1i. 201; Ex }.:rU J'«r, 10 Cli. IJ. 530 ; Mwr \-. ^Wfiid'aii Bank, In Ch. I). (\H\ ; H'xi*,iiY. T(a Company, 11 CI], |). 'J!);£xpur(riority of (li-liciitmc-liDliIci'K inirr Sf, see . H\-2 ; Mowott v. Cistle StnlCo., 3 J Ch. I). ^H. ((/) A'.i }>iirte Ihiuiiluiw, IT. t li. 1). 41;") ; Hwilish Chuntii'l Stfuin Co. v. lu'lt, 17 Ch. I). 715, t'Diiijiim' ll'Uini V. I'atmt Ivonj Co., 3,4 Vh. I). 188. (r) See /uioiNm/k v. C,iriiuirthtn Hail. Co., 5 E:ire hfiuf V. Union luiiik <,/ Aimtralia, 2 App. Vi\. 366. (/) Atnilo-Ihitiuhinn, tW., Colliriij I\k,20 K-i. 33!); Cumphtll't rant, 4 ( 'li. 1). 470. See, also, i;.,itnt't CitmU Ironworks Co., 3 Ch. I). 43. 108 I.IAniMTY OF COMPANIKS FOU ACTS OF TIIKIII AGENTS. IsMio I'f ilclion- r>c^'ivtr;itii.n of (U'iMMiliirfs nii'li T Hills of s:ilo ad, V.\. W. ('liai>. 3. (lay. Tlio v.ilidity of these instruments (Icjieiuls on the coii- . -.J — ' -~ — siderations for which they are fj;iven ; tht^ aro primd fmc hinding on the company as admissions of. inflLhtedness- but when issued by railway companies for money borrowed nftei' their statutory powers of borrowing have been exhausted, tliev are altogether illegal and void ('/). Debentures are issued when they are delivered (//). Section 17 of the liills of sale act, 1882, excepts from tlie operation of that act any debentures issued hv \n\\ moit- gage loan or other incor]iorated company aiii the authority l)y which the seal was aflixed to the instrument, and (2) on the nature of the instrnment. An instrument to which the seal has been aflixed ])y a person wIid | has no authority Xo atVix it, is invalid, and it" there isfniy; intent to defraud, is a f.^rged instrument (/K On the otlier DrC'il-^ i,f roii; |>tiiiie>. {g) ChuiiihtrA v. Mainlifster, ((r., Bail. C'>.. T) B. iV Sm. .')>« ; U'kitt V. CiinnniilttH li'iiil. i'« . I lliin. & M. 7SK ; I 'ink and Ynwjhal li'til. U':, 4 eh. T4R ; tountaine v. (Hr- vnrthfn Hail. I'n., ■'j Kcj. .'11(5 :3*2.'i. As ti> r di^ts I'ontntcteil l.eforo the power to 'lur- riiw loiuineiiccil, sec /t'c Ihiinah- ttorn and ]Vi j-fitrd UnU. I',,., Ir. U, 4 E^. 5(),'), wlnTP the i)ri vioUB tuith>i- rilies are reviewe!Cn.,34 ( h. I). ■ 8. (t) See on this seotinu, Ros.'i v. Arm^ and Nav)/ H"l-I ''«., .14 Ch. \\ 43 i Kdmon4ji v. IHniiui Furnttt^ Co., 3(1 Ch. 1). -Jl'); J.tnj v. Aha- airris Slali ( 'o., 37 Cli. D. M) ; Tf | Ikuii V. ilrniisiilc Fire lirick 0>., ib. p. 2^1 ; Jrtikinsoii v. Bm>ulkiiMini«ij\ <'»., 19 Q. B. D. 5fi8, ami as tothej I'.ills of Sale Act, 187S, sec :>"->]' y. I'nnnrll, 24 Ch. D. 210, and Pabur'sj Coinp. Proc. 4th cd. pi'. W)-'i>^. (/c) As to tlie inubility of "iwj partner to hind his liriu liy itdiil,] see I'tirtn. lit!. (/'i Sw Bank of Mmd\.Efi<\i^ (l,.,,Hu$, S ir. I.. ('. 389, m\ Lord Klitaple of ':miland v. Bank of! Kuylaud, Sl'v- B- '^- ^^' CASES NOT J> hfliiil, nil instrument s fdcie, binding on the 'i sence of tlie sfdl (toes n nition with respect to throw upon the corpora uf the instrument, and advantage ni the noii-o the person dealing with iion-ohservanoe (/nl. By ^' M of the Com tiie act may empower behalf in anyplace not ( Extension of bii,'ii)irss tigated ill the Inst chaj foiiipany may develo]) i transact, tluy Jiave no pi business, nor to enlarge necessary to carry on tlu lias beni already a) ' tided liereaftci when consideri minorities, and the ca$ grained against directors inconf.rmity with the i)i t'omied for the purposes bound by policies agains the sanction of two ^'V>and, 5 E. & j; -. ,s ^^■iir.A^ary. The Aika. "/« Jw") See also the Compau: ot CASES NOT INVOLVING ANY TOUT Oil FUAtU). VJ'J l,a,ul, an instrument soalo.l by tl.o proper officers is, primd Hk. n.^Cl,ap. :.. ,;,f,V, binding on the 'H)(ly corporate ; and altliouf-h the pro- ■^euceofthe ^^A rfoes not have the efTect of binding tlie corpo- nitionwith respect to matters which are ultra virrn, it (b>os tluOT uimii the corporation the onus of proving the invalidity the instrument, ami precludes the corporation from taking A i uf the non-observance of preliminary formalities, if Kxt( TIOIDD of iidvantiige the person (ioiiling with its nmnagers had not notice of such non-observance (»i). Bv Im of the Companies act, 18G2, any company under tiie act nwy empower any perscni to execute deeds on its behalfin any place not situate in the Tnited Kingdom (//). Extmm of hiisiucss.— U follows fi-om the i)rinciples inves- |';'^'j,"'^'° tigated in the last chapter that although tb directors of a company mny develop the business wliich it was formed to transact, tluy have no power to change the character of such business, nor to enlarge it by enjbarking in any business not necessaiy to carry on the tirst in the usual way. This subject lias been already alUided to (o), and will be more fully examined hereafter when considering the powers of majorities to bind minorities, and the cases in whicli injunctions have been granted against directors (p). It is sufhcient here to state that inconfiimity with the principles above alluded to, a company lormed fur the purposes of life insurance has been held noc biiund by policies against niaritiuie risks, though issued with the sanction of two general meetings (y) ; that it has been doubted whether a copper mining company could sue on a contract for the supply of iron by itself (/•) ; tliat a canal com- pany has been held unable tinr of act. 1864, 27 & 28 Vict. e. 19. -Ito, 3 H, k N. 323 ; The Au.,- (a) See miU, p. 1(;2 et ,s.r. Ww", . »>''JKeaH(«,p. I66ft«,. (,) Xational Guaranteed Manure l«) See also the Compauic.- Swi- Co. v. / hmuld, 4 H. & N. S. 200 MAIUMTY OF COMPANIKS FOR ACTS OF TIIKIR AGENTS. r.k. II. Clmi>. 3. ()ji the other linnd, it is now sottleil that railway companies --'— are bound hy coiitruots to earry or send goods bevond the limits of their own lines (t) ; and a railway company can sui' iijjon a contract between itself and others who undtitiike tn carry ]iassengers and goods from its terminus across the sea in steam vessels (u). See further in connection with this subject ttiitc, Bill in ParUdiiitiit, and infra, under the heads Lenses and Transfer of business. The power of a company formed for lending money, acquiring property and carrying on any monetary operations, to join other persons in buying an estate and building upon it and to form another company in order to carry out the specuhuioii was much discussed in London Finunciul Assurance \. Ki'lk{x); and it was held that such operations were within the power of the company ; that any iri'egularities in the way in which the directors had acted had arisen from mere errors of judpnent; and that what they had done had been approved and sanctioned by the bulk of tlie shareholders. In this case, however, the company's memorandum of association was so wide in its terms as to warrant almost any kind of business which the directors might choose to engage in. Luleinitity. — A company is not bound by an indemnity given by its directors, unless their power to give it can be shown (y) ; but a general power of nnmagenient is n sufficient authority, if givuig an indemnity is iVirly witliin the scope of : the company's business {:). Nor is a company hound by a guarantee given for a fraudulent purpose, and which purpose is known to the person to whom the guarantee is given (a). Buying sliai in unotlier lmsines>. London Finaiicia A-ifoeiation f. K.-lk, Indemnitic* I'V directoi's. (0 Jl'ilh V. If'td Cornwall liuil. Co., 2 11. & N. TH.'5, and the ca-ses there ciU'il ; Great IJ'cstern liuil. Co. V. JUakc, 7 II. & N. 987. (u) South Wales Rail. Co. v. Rcd- inoyul, 10 C. E. N. S. 67.'3. Cdinpare Colman v. Eastern Counties Rail. Co., 10 Beav. 1. (x) 26 Ch. D, 107. Hefurrod t'j infra, liouk ill., e. 2. (i/) Era Assurance Co., W. N., IS06, 309 ; Ridley v. I'lyinouth Grinding Co., 2 Ex. 711 ; Klrh v. M, 16 Q. IJ. 290 ; and see, as \o guarantteinj; jirofits to other ODiniKUiies, fo/fflflu V. Easturn Counties Eml. i ., 1'' lieav. I. (x) Ex parte Booker, 14 Ch. D. .317 ; Small v. Smith, 10 Aff. Cij 119. (a) British and Ameriavt Tel. Co.] V. Albion Bank, L. H. 7 Ex, 119 H rray V. Lewis, 8 E.]. 52G ; reverse' but uot on this point, 8 Ch. IWiJ. CASES NOT INVOLVING ANY TOUT OH FUAtJD. 201 \ii flfroeinent bv diroctors, that persons tiildii^' sliixros in a '•'■ "/''"I' compiiny shall W iiHk'iuiiified by tlio coiniiaiiy npiiiiist loss, does not bind tlie coiii])iiiiy (/'); ""i" ''"f'^ »" nf^'i't'ciiuMit, that tlieooinpiiiiv will iiuleiiinify outf,'oing shavflioliU-rs against their liabilities [c). But dirt'oturs wlio personally give such in- demnities, are bound by them ((/). Where two companies have power to anialganiato, an agree- ment by one of thoni to indenniify the other against its liabi- lities is valid, and capablu of being enforced (<•)■ See further as to this subject iiifru, under the head Purchases. hmirf a government oflice (A) ; hut in this rase the eircunistances were peculiar ; the hotel was of an immense size and just finished ; the letting was to ho teiuporiivv; iind the whole huilding eould not have been advantageously oiuned as an hotel at once. It is settled that in the absence of express power so to do, one railway company cannot lease its line to another and exclude itself from using it(/). Wlitre, however, the articles of association of a company iiutliorised two-thirds of the shareholders to require the directors to do any act which the company itself could do, and two-thirds of the sluirdudders authorised and re(piired the directors to Icaso the company's works for twent3'-one years, and such lease was made accordingly, it was held to be valid and biiuliii},' on the company and on dissentient members (in). It has been decided that a railway company cannot make a valid lease of any part of its land, so as to prevent the company from retaking the land if and when possession nf the land becomes necessary for the purposes of the com- pany (/()• 1^'it this doctrine is not to be extended to cases in which it is not clearly proved that the lease is inconsistent with the attainment by the company of the purposes for which it was created {<>). MorUjagcs ditd Pledges. — "With respect to mortgages and pledges by companies little remains to be added to what inis been said above under the head Borrowing moiiq/. It has been held that a trading company can give a valid bill of sale (i) See //or«ey'» c/ni'm, 5 Eq. 5G2. (J H, L. C. lin. See further, .u (k) Simpson v. Jl'estminsler Palace to this much litigated case, 2 M:io. Hotel Co., 2 Dc G. F. & J. 141, imd & G. 324 ; 3 ib. TO ; 16 B.w. 441 ; 8 H. L. C. 712. See. also, Forrest 4 Dc G. M. & G. 115 ; 17 Q. B.Cii V. Manchester and Sheffield Rail. Co., (m) Featheistonhaugk v. Lee Moor 30 Beav. 40, and 7 Jur. N. S. 887, Porcelain Clay Co., 1 Eij,31S. as to temporary use of property. (71) Mulliner v. Midland /'ail, 'I'l (0 See JVinch v. Birkenhead Rail. 11 Ch. D. Gil. Qu-, if this ca^e did Co., 5 Dc G. & Sm. 562 ; London not go too far. and Enyhton Rail. Co. v. London (0) See Grand Junction Canal Co. and S.-W. Rail. Co., 4 De G. & J. v. Petty, 21 Q. B. 1). 273, wiiere part 362 ; Shrewsbury and Birminyham of a towing path was dcdicateJ t» | Rail. Co. V. North-Wettem Rail. Co., the public as a highway. Jlort;.'ages ami til Mvinv a debt cf lli' steam sliip conipaiiy can niortpigo its ship directors of u nuuiiiri fan equitably iuorti,'nj,'( Lilt that a mortgage of iiivahd iiidess iiiidcr sf As to mortgages hy clatises consolidation a imiuij, and also 81^!)' tare stock, 26 \- '17 \ f. -18, § 1. .Vll limited rogistci'ei panics act, 18(>2, to 1 diargos specifically all'i register to be inspects not invalid, even althou to see that the statute ii By section If) of th^ c. W), all companies to iiildition to any other n iitthe office of the noi '>^«it\ -eight (hiys of t » given to any person t, "f "!• in their mine. wnfer no priority over, ip; ''hmrn V. Jucuh, I, \{ ■'13;A#<«v, JHoV., LR.' »^. A bill of sale given 1. V pany is within the Biil.s of "-s '*^2(45U6 Vict. ,■..1,3,,,,, ^5 a Jc'hentiirf within the „ »f»«iun 17 of that ad '*'*)AW«,, 28 I'll I) ,; '""', p. 196, (?) Australian .%,rm Clip V. .'/«.<,:;;,, K..U. 7.13. J'}F.t parte X^tional P. ^'^:'^'< Patent File Co., c., CASKS NOT INVOLVING ANY TOUT OK IKAUD. 203 to secure 11 debt o( ilir coinimiiy (/>) ; timl. tlui rs of iniuinf^tMncMit - — Clin mort"ii"o its ships for luoiu'y borrowed (7), niid tliiit tlu; directors i)f ti inamifiicturing coiiipuny with similiir powers can equitably mortfjngo its property by depositing its deeds (r); but tlmt ft mortgage of the unoftlled-up capital of 11 company is invalid uidess under special circumstances («). As to mortgages by companies governed by the Companies* clauses consolidiitiDn act, see (uite, under the liend lionouing wmj, iind also 8 i^ 9 Vict. c. 1(>, § 3H (7 srq., and ns to deben- ture stock, 20 \- 27 Vict. c. 118, § 22 ct srq., 32 .^- 33 Viet. c. ^8, § 1. AH limited registered companies are required by the Com- Rtvi'^torM ,^f paiiies act, 1802, to keep a register of all mortgages niul charges sproificully affecting their property and to allow the register to be inspected (0 ; but unregistered mortgages are iiotinvidid, even iiltlioiigh held by a director whose duty it is to see that the statute is complied with (11). By section 19 of the Stiiiniaries act, 1887 (50 Sc 61 Vict. c. 43), all companies to which that act applies are required (in iiiUition to any other registration required by law) to register at the office of the registrar of the vice-warden's court within twenty-eight days of their date, all documents whereby power IS given to any person to take possession of any mining elfects of nr ill their mine. Unless registered the documents shall confer no priority over, or title as against, the rlaims of iniirtgii>ri>ii. ir, !^h'Ars V. Jiu-oh, I,. R. I (_'. ]>_ 513;/Jf««v. JHaV.', I. R. 2 (). \\ 1-1-t. Abillof sale ^'ivvii Ivan im- Pfflv is within the Bills,, f'Sitle act, 18^2(45&46Vict. .-. 43), unles-i it 13 a debenture within the nicanin,; »f sfction 17 „f thut act. See X^ Imkmn.jh's ra,,, 28 Cli. 1). m, an.l 'in'?, p. 196, f'/J Australian Sham Clipper Co. v..l/(.Mse!,,4K.&J. 733. {'■)Ei paHe National Ihnk, 14 •'')Seea«(«,p. i92,(/)an(lp. 1^ '^ y Photographic Sciences Corporation 23 WIST MAIN SI REET WEBSTER, NY. 14580 (716) 872-4503 I ^pmm Wf ^04 m LIABILITY OF COMPANIES FOB ACTS OF THEIR AGKNTS. Bk. II. ciiap. 3. persons for work done in the mine or for goods supplied to the Sect. 1. 1 1 . 1 1 • • • 1 — company by which the mine is earned on. Mortgage Do- lienture Act. Notice to com- pauies, &c. By the Mortgage debentm-e act, 1866 (28 & 29 Vict. c. 78, amended by 83 & 34 Vict. c. 20) (x), facilities are given for the issue, by certain classes of companies, of transferable mortgage debentures, upon certain terms and conditions. But the act only applies to, 1, companies governed by the Companies act, 1862, and restricted by the memoranda of association to the objects of advancing money on real securities, and of borrowing monc n. , transferable mortgage debentures, or on real securities (y) ; 2, to companies incorporated by net of Parliament for siin' ..liv restricted purposes. Moreover the paid-up capitals o a; j*" companies must not be less than 100,000^., and eacii Jvue must be of the nominal value of not less than 501., of whicL not less than one-tenth nor more than one-half must have been paid up. Notice. — From the principle that the individual shareholders, and even the individual directors of a company are not its agents (z), it xoUows that notice to one of them is not notice to the company (a) ; and a company is not deemed to have notice t-Hrough a director of a fraud on the company com- mitted by that director (h) ; nor are two companies hflvin" some du'ectors in common necessarily affected through them with notice of each other's affairs (c). Thus where two com- panies, A. and B., had in common two directors and a solicitor, and company A., in order to buy up its own shares, bonowed money of company B., and this circumstance was known to one of the two directors and to the solicitor, it was neverthe- less held that company B. had no notice of the impropriety of {x) The act contains a great va- riety of important provisions, to which it is unnecessary to allude in the present place. (y) There is power to alter the memorandum so as to restrict it to these objects where the memorandum as originally framed includes them, but extends to others as well. See § 3. (z) Ante, p. 166 et seq. (a) See PowUi v. Pane, 3 C. B. 16 ; Re Carew's Estate Act (Xo,!), 31 Beav. 39 ; Peruvian Euil. ft. v. Thaviet, etc.. Insurance ('o., 2(1 617. (6) Oriental Commercial Banl 5 Ch. 358 ; Re Carew's Eslatt M (No. 2), 31 Beav. 39. (c) CrMit Fancier, etc., Co.," (1 161 ; Ebbw Vale Co.'s claim, 6 k 14. [CAS the transact! happens, one knowledge of tJje company ; affected by th( of their duty ( attend, but not Although ev a company is i officers when j pauy (g), nor w their jjowcrs (//) Purchases. — ( to them for th ordered by their of a cost-b'^ok ] to the mine by tl and that an or liability for goods its business, and works, simply be strict conformity {(I) Cri'dit Fonder, "il. See, al.-io, Grnij l''3j, ruvei'sin^'S. C. (0 Societe Genera Tmmways Union Co ■iii, and 1 1 App. Ca >i'>ciete Gin., die v. tlie kllo\vl(■(^^'e was '•isiial talk at a fu ""tico throui,'!) clerks in note (A). (/) British and A T. Albion Hank, L. ''''•'6, al:so, Sti/les V. ^i Co., 4 N. II. 483, M to m.tiee of ferocity (3) 'Sec the cases "wncrelnp, Ex parte . "■ & J- m ; JJrowM im 'cases not involving ant tort or fraud. 205 the tmnsaction (d). At the same time if, as sometimes ^^- "• f'''«P- ^• ... J. , . Sect. 1. happens, one director has authority to act for a company, his knowledge of matters within the scope of his authority affects the company ; and it may be said generally that a company is affected by the knowledge acquired by its agents in the course of their duty (e), and as to matters to which it is their duty to attend, but not to other matters (/). Although every person has notice of what he himself does, 11 company is not affected with notice of what is done by its officers when acting for themselves and not for the com- pany ig), nor when acting in fraud of the company or beyond their powers (//). Purchases. — Companies are clearly liable for goods supplied Purchase!", to them for the purpose of carrying on their business, if ordered by their agents. It has been held that the members of a cost-b'^ok mining company are liable for goods supplied to the mine by the order of its^directors or resident manager (»); and that an ordinary joint-stock company cannot escape habihty for goods bond fide supplied to it for the purposes of its business, and by the order of the superintendent of its works, simply because he may not have been appointed in strict conformity with the company's deed of settlement (A). ((/) Cndii Fonder, Jtc, Co., 7 Ch. liil. See, al.. 703. As to Vice V. Anson, 7 B. oc C. 409, see the above rases, !>.nd Owen v. Van Uster, 10 C. B. 318. {k) Smith V. H'dl Glass Co., 11 C. B. 897 ; Allard v. Bourne, 15 C. B. N. S. 46S. 20G J!k. II. Clmp. 3. Sect. 1. Mr m BcprcHcntations. ;iABtLITY OF COMPANIES FOR ACTS OF THEIK AGENTS. So a company is liable to pay for goods which it has power to buy, and which have been ordered in its name by its agents, although not for its use (l). But the mere circumstance that goods have been supplied to a company in the course of its trade and have been used by it, is not sufficient to render the company liable for them if they were supplied by the order of persons not authorised to obtain them for the company (mj. In such a case ratification by the company must be proved {n], A company has implied power to purchase a patent which is useful to it for the purpose of carrying on its business (o). Whether a company can buy shares in another companv depends on the objects with which it is formed (p). But a company has no implied power to buy its own shares, nor is such a jjower included in a general power to deal in shares (?yi, In fact, such a power is inconsistent with the whole principle of limited t n panics, and cannot be conferred on such a company even by its articles of association, nor is it conceiveil even by its memorandum of association (r). Representations. — A joint stock company is not bound hy the statements of one of its members, unless he is also the agent of the company, and his statements relate to matters within the scope of his agency (s), and are made by him wlien acting for the company in some business with a third party (')• Nor is a company bound by statements made by one of its directors, if he is not singly an agent of the company («). But a company is bound by the statements of its directors, if (0 Eblnv Vale Co.'a claim, 8 Eq. 14. (m) Kingshridge Flour Mill Co. v. Plymouth Grinding Co., 2 Ex. 718. (»i) As to which, see ante, p. 178 et teq. (o) Leif child's case, 1 Eq. 231. (p) Ante, pp. 43, 200. (g) Zulueta's claim, 5 Ch. 444. (r) See Trevor v. IVhitworth, 12 App. Ca. 409, where the earlier coses are collected and discussed. Lord Macnaghten (p. 436) was of opinion that the power even if contained in the memorandum of association would he void— anJ the writer is of the stmie oiiiuion. Tlii' point, however, did not actuallj arise, and has not been Jirectlj decided. (») Burnes v. Pennell, 2 H.L.t'. 497, ante, p. 154 ; Barndi HoariU- Co. v. South London Tramtoays (V, 18 Q. B. D. 815. (t) Devala Provident Cold MiniM Co., 22 Ch. D. 593. («) Holt's case, 22 Beav. 48 ; » son's case, 2 De O. & J. 275 ; tli«i' eau, 3 De 0. & J. 387. CASES made by them h the business whi As regards rej the.se to be actioi making them (9 not enough, and governed by 7 G misrepresentation altiiough signed I How far comp statements of thei in a subsequent S( See fuvtlier on i Sales.— With re to be borne in rair 1. Corporate bo their own corporal 2. Railwaj- and < Parliament coiiferi they would not ot those rights and pri 3. Although gen elude power to sel powers do not auth I sale of the business But there is a dij I company as a whole jof the company. l"''Wv. Mitrs(c). W See the cases cil Vhz'i Ex. case, 2 De {li)S>nft V. Jewsbur, i\ B. 301, overniliiig i V"'ni»K lianckk v. E, ^W-/,'«n^- 2Ex. 259. , ' •'^"i""-, dr., of C ,;"'"■ ' "•'■ k B. 226 tr>"rahon of Avon, 29 ^''M Patent. Pile Co. CASES NOT INVOLVINO ANY TORT OR FRAUD. 207 made by them honestlj' for the company and in the course of Bk. ir. cimp. 3. > • • 1 • 1 / Sect. 1. the business which it is their duty to transact (x). As regards representations respecting the credit of persons, these to be actionable must be in writing signed by the persons, making them (9 Geo. 4, c. 14, § 6). Signature by an agent is not enough, and it has been held that a banking company coverued by 7 Geo. 4, c. 46, is not liable to be sued for a iiiisrepresentation of the kind in question made by its manager altliougb signed by him {y). How far companies are liable for the false and fraudulent statements of their directors and other officers will be examined in a subsequent section of the present chapter. See fuvtlier on this subject ante, under the head Admissions. Sales.— With respect to sales by companies, the main points Sales by com- . , panies. to be borne in mind are : — 1. Corporate bodies have by common law full power to sell their own corporate property (z). 2. Railway and other companies governed by special acts of Parliament conferring upon them rights and privileges which they would not otherwise enjoy, cannot delegate or transfer those rights and privileges to other persons («). 3. Although general powers of management necessarily in- clude power to sell in the ordinary course of business, such powers do not authorise sales of an unusual description, e.g., a sale of the business of the company (6). But there is a distinction between selling the business o^ a I company as a whole and selling the specific goods and chattels of the company. This is well illustrated by tlie case of irilsoii V. il/u/'s (c). There a steamship company, being the Wilson r. Micrs. (x) See the caaes cited in § 3. U'>u'» Ex. case, 2 De G. M. & G. 1(22. (n) Sinft V. Jeiosbury, L. R. 9 jQ B. 301, overruling 8 Q. B. 244. ICuinjiiire Baru-ick v. English Joint ilock Iknk, i Ex. 259. Maijor, (fc, of Colchester v. if'"'ni, 1 V. k B. 226 ; Evan v. t'rpratiun of Avon, 29 Beav. 144. \ also, Patent File Co., 6 Ch. 83. (a) See fVinch v. Birkenhead Rail. Co., 5 De G. & Sni. 562, and other cases of that chiss, ante, p. 202, note (l). (b) See El-nest v. Nicholls, 6 H. L. C. 401 ; Ex parte Liquidators of the British Nation, Ac, Ass., 8 Ch. D. 679, and the cases cited ante, p. 184 note (/). See, also, Chappie v. Cadell, Jac. 637, infra, note («). (c) 10 C. B. N. S. 348. !■ ^ ' -f 208 LIABILIT7 OF COMPANIES FOR ACTS OF THEIR A0ENT9. ^^' ftL.*^''"^' ^' ^®^®''^® ^^ prosperous, its diroctors entered into a contract for — —the sale of its whole fleet. The purchaser declined to com- plete the contract, on the ground that, although the directors had general powers of management, including power to buv and sell ships, they coiild not, in the absence of a resolution to dissolve the company, sell oflf all its ships at once. The Court of Common Pleas, however, held that the contract was one which the directors could lawfully enter into and carry out without any special authority from the shareholders. 4. A power to sell the assets of a company as a whole when it is being wound up is conferred by the Companies act, 1862 id) ; and independently of that act, where there is power to wind up, there must necessarily be a power to sell and con- vert into money («). See further ante, Amalgamation. Twnsfcrof Transfer of business, see ante. Amalgamation, and Sales. l)U''iness. Negligence of servants. SECTION 2.— TORTS. Although companies are never created to do what is wrong, and can seldom be said to have in fact authorised the wrongful acts of their directors or servants, it is plain that the ordinary principles of agency apply to such cases ; and on these principles, companies are liable for the negligence of their servants, and for torts committed by them in the course of their employment ; and it never has been admitted, as a sufficient reason for non-liability on the part of the company, that it did not in fact authorise the very act complained of. All that is necessary to charge the company is that the act complained of (d) See § 161, and Higg's case, 2 Hem. & M. 657 ; Clinch v, Financial Corp., 6 E(i. 450, and 4 Ch. 117 ; Imperial Lank of China, d-e. v. Bank of Hindustan, 6 Eq. 91 ; City and County Investment Co., 13 Ch. D. 475 ; and Uniori Bank of Kings- ton-upon-HtUl, ib. p. 803. («) See Lord v. Copper Mimi j Co., 2 Ph. 740. Compare Chifft | v. Cadell, Jac. 537, where it wu h ' that the majority of the proprieisn I of a newppajier could only sell lis j own shares. LIABILITY FOR TORTS. 209 should bo intra virc8, and not ultra vires (/), and should be Bk. IJ- Chap. 3. committed by the agent or servant of the company in the course — — -- (if the business to which it is his duty to attend, or as it is sometinios expressed, in the course and as part of his emploj'- ment (//). Upon this principle it has been held that the Bank of Engliind is liable for a wrongful detention of bank notes by its servants (/() ; that a banking coinpany is liable for the loss of securities entrusted t' it and carelessly kept (?") ; that a com- piiny is liable for a wrongful seizure of goods made by its sei-vnnts for non-paj'ment of tolls (A) ; for wrongful assaults (I), and arrests if made by persons authorised to act for the com- piiny in removing persons or giving them into custody (m) ; for negligence in laying down gas-pipes (n) ; for reckless driving (o) ; for the infringement of a patent by its servants contrary to the orders of its directors (p) ; and for the publication of a libel by tmnsmitting it by telegi-aph {q). Moreover, in sr ch cases as (/) See unh; p. 161, et seq, and lUlon V. L d- S.-IF. PmU. Go., L. R. 2 Q. B. 534. (;/) See, on this subject generally, HmswPouhom, L. R.8C. P. 563, and tlio case^ cited infra ; with reference t'l arrests, Lord I'olingbroke v. Local I'mril of Sioindon, L. R. 9 C. P. 575 ; , ihmj Doch Co. v. Gihbs, L. R. 1 . H. L, 9.3 ; Coe v. Wise, ib. 1 Q. B. ill ; mi as to the non-liability of "lupanies for the acts of directors I and agents when not acting as their lagents, RritiKh Mutual Banking Co. h.Chmumd Fon-M Hail. Co., 18 Q. IB. D. 714 ; Mi-Gownn d- Co. v. Dyer, JLR.SQ. B. 141, .'i) Yurbormigli v. Baiik of Eng- i K) East, (). See, too, Giles v. \HVdeRail. Co., 2 E. & B. 822. (i) M?i«(o?i's ckim, 6 Ch. 212. K'ompare OiJdin v. McMullen, L. R. 1P.C.31-, (i) .Vfiimrfv. Monmouthshire Canal \ 4 Man. & (ir. 452 ; Smith v. p'liiiiijftuni Gas Co., 1 A. & E. 526. Bvtltr V. Manchester and Shef- f'WMC'o.,21Q. B. D. 207. L.C. (»») Moore v. Metropolitan Rail. Co., L. R. 8 Q. B. 36 ; Bayley v. Manchester and Sheff-^lii Rail. Co., L. R. 8 C. P. 148 ; Goff v. G. Northern Rail. Co., 3 E. & E. 672. Compare Edioards v. London and N.-JF. Rail. Co., L. R. 5 C. P. 445 ; Allen V. London and S.-JF. Rail. Co., L. R. 6 Q. B. 65 ; Poulton v. London and S.-Jy. Rail. Co., L. R. 2 Q. B. 534, and Eastern Counties Rail. Co. v. Broom, 6 Ex. 314, in all of which the company was held not liable. (n) Scott V. Mayor of Manchester, 1 H. & N. 59, and 2 ib. 204. (o) Green v. London General Om- nibus Co., 7 C. B. N. S. 290 ; Limpus v. Same, 1 Ilurlst. & C. 526. (p) See Belts v. De Vitre, 3 Ch. 441. (5) IVhitfieldy.South-EastemRail. Co., E. B. & E. 115. See, further, as to libels by companies, Lawless v. Anglo-Egyptian, dc, Co., L. R. 4 Q. B. 262, where the libel complained of was contained in a report made by the directors to the shareholders 210 I.IABU.ITr OF COMPANIES FOR ACTS OF THEIR AGENTS. Malirious injuriM. •*•'• "• ^•'*P' '• those now in question, it is not necessary, in order to fasten L_l — liability on the company to prove any formal appointment of the agent by the company (r). Whether an action will lie against a corporate body for a malicious injury has been much discussed and doubted, andean scarcely be said to be yet settled («). The weight of authorit} is however in favour of such an action being maintainable, and in the author's opinion this is most in accordance with principle (/). It is, however, essential in order that a company may be liable for the wrongful acts of its servants that those acts shoidj be such as the company could have authorised, and that they should have been authorised or ratified by the company, or have been done by the servants in the course of their employ. ment, and not when acting in matters to which it is not tlieir duty to attend («). Accordingly it was held that a comjianv was not liable for injuries committed by a dog kept in a yaid, there being no evidence to show that the savage nature of the dog was known to any one who had chai'ge of it, nor to the com- pany's manager, nor, in fact, to any one whose knowledge coulJ be considered as the knowledge of the company, although it was proved to be known to one or two of its servants (x). i! ii AHh aud which was held to be a privi- leged communication. (r) See Giles v. Tuff Vale Rail. Co., 2 E. & B. 822. («) An action fur malicious prose- cution was held to lie in Edwards v. Midland Rail. Co., 6 Q. B. D. 287 ; and the possibility of its being sustainable was recognised by the Privy Council in Baixk of New South Wales V. Owston, 4 App. Cu. 270. See, however, contra, Stevens v. Mid- land Counties Bail. Co., 10 Ex. 352, and Abrath v. N.-E. Rail. Co., 11 App. Ca. 247, where Lord Bramwell expressed a decided opinion against such an action. As to maintenaoce and champerty, see MetroplitM Bank v. Pooley, 10 App Ca. 210. (0 Pollock on Torts, 51 & 81. (it) See the cases in the k-t h notes, and the Judgment in Banl (j New South Wales v. Owsion, 4 App. Ca. 270. The cases cited in note m show that a company can ratify iinii adopt the torts of its agents, if i1h'« torts are such as can theoretically be imputed to the company. {x) Stylesv. Cardiff Steam BmtiX 4 N, R. 483, Q. B. Wb^e the ca.es cited W^ee in addition to |^*,L.R.iH.L. So r-'r T. ne Great W, r^H'I'.C.72 '') 2 McQueen, 103. mm LIABILITY FOR FRAUDS. 211 SECTION III.— FRAUDS. Bk. II. Chap. 3. Sect. 3. It is now proposed to examine the general question — Under Frau.iti of what circumstances is a fraud perpetrated by the directors of a ' "**' ""' ("ompany imputable to the company ? Directors of a company have no implied authority from the company to make false representations on its behalf; and, gonerully speaking, frauds committed by directors are quite as imuli frauds on the companies they represent as on other per- sons. But consistently with the established principles of agencj', it does not follow that, as between an innocent company on th^ one hand, and an innocent individual defrauded by its directors on the other, the company is not reponsible for the fraud com- mitted by the directors. It has been held that the general interests of society demand that the representations by the directors of a company shall bind the company, although the shareholders may be ignorant of the representations and of tlieir falsehood (t/). In practice this question never arises in an abstract form, but always with reference to some remedy sought either by the company or against it ; and if against it, then with reference to the rescission of some contract or with reference to an action for damages. This must always be borne in mind in reading the reported cases on the subject ; for observations true with reference to one class of remedies may be inapphcable to another class («). First it will be convenient to refer to cases in which com- 1. Rescission panies have sought redress, and to cases in which relief by way I of rescission of contract has been sought against them. In The National Exchange Company of Glasgow v. Drew (a), National Ex- tbe defendants had been induced, by the false statements con- of'("irs>'ow "(!.""'' tained ill the reports of the directors to the shareholders of a ^'■'*' Company, and by the false representations of its manager, to Ibonow money of the company, and to buy shares in it with in) See the cases cited below. (:) See in addition to the cases in [the tpxt, IVestern Bank of Scotland v. l'Mi<, L. R. 1 H. L. Sc. App. 145 ; H^r T. The Great JVestern Rail. ^'o.SH.L. C. 72. ") 2 McQueen, 103. The judg- ments in this case were reviewed by Lord Chelmsford in NicoVs eate, .3 Dc G. & J. 387, and were not alto- gether approved by him. See, how- ever, the judgment of Lord Justice Turner in the same case. ft 212 I'.k. 11. Cliai. Sect. 3. I.IAIUUTY Ol' COMl'ANIKS I'OR ACTS OF TIIKIIl AGESTS, ■■'• the money so borrowed, in order to keep the price of slmresu[i in the niiirket. The company sued for a return of the money lent, and tlie defendants relied upon fraud as an answer to tlu' suit. The fraud was clearly proved, and it was held iniputulilf to the company, and a sufficient ground of defence. The following passage from the judgment of the Lord Clmiu'ull r shows how the argument, that the fraud committed was uut tlie fraud of the company, was met. JutlKnient. of " The company, as an abstract thing, can represent or ilo nothiiif,'. It ;;iii Lord C'rai'wtath. ^^^^^y ^.j. jjy jj, managers. When, tlierefore, the directors, in the disdwrs' of their duly, fraiululently (for I assume this to be so), for the imrpoH' ol niisluiuling others as to the statu of the concerns of tlie company, npie*!:! the company to be in a diflVrent state from that which they know it to 1*, and the persons to whom the representation is addressed act upon it in thf belief that it is true, I cannot think that society can go on without truatiii;- that as a misrepresentation by the company. Otherwise companies uf tlii' sort woukl be in this extraordinary predicament — that they niij,'iit eiiijik, nay, must employ, agents to carry on their concerns, and tiiat tlio.^e a^'cut- might make representations, be they ever so false and ever so fraiidiiieii', and yet that tlie company might and must benefit by those niisruineseiiia- tions, without being at all liable to be told, that is your fraud. It wa- plausibly argued that these reports were not made by the company Init '■ the company. In form that is so. No doubt they are reports made to tlie company. But I assume, for the ])resent, that they were wade to tW comi)any under such circumstances that what they so report is known anil intended to be known, not only to the shareholders, but to all poi'soiii who may be minded to become shareholders, just the same as if they were pub- lished to the world. I repeat that I think the exigencies of society dtniflnl that the reports so made and so circulated should be deemed to lie the reports of the company." Lord St. Leonards expressed a similar view upon this question. He said, " If representations are made by a company Iramln- lently, for the purpos*! of enhancing the value of their stock, and thy induce a third person to purchase stock, those representations so made ly them for that purpose do bind the company. I consider reiiresentatioiis'r the directui-s of a company as representations by the company, altlioui they may be representations made to the company ; it is their omi repre- sentation. What is the first act which takes place at any such nieetir;|; ;« that at which the report was read i The first act which takes place atevrtr such meeting in Scotland and England is, that if there is not a lejeciin, there is an adoption of the report ; then I say the report is the act if ibe company, and not simply of the directors. It does not stand as the siinplt j statement of the directors. It becomes the act of the company by the • adoption of the report, and sending it for^h to the world as a true wpre- j sentation of their affair.^, and if tuat representation is made nse of i dealing with third persons for the benefit of the company, it subjects thea j to the loss which may accrue to the party who deals, trusting to thus* misrepresentations." Judgment of Loiil St. Llii MAiui.iTY Foil Fiurns. 213 \imiii in New Bntiiairick Co. v. Cunuhcarc (b), the facts ''•'<•"• cimi». "J. ... Sect. ;J. (if wliich will be referred to herenfter in considering the sub- i( ct of the rescission of contracts for fraud, Lord Westbnry, company r. said : — ' •' 1 1 niaiiily am not at all dispoaeil to mlvise your loitlships to throw any Jiuljjmcnt of ilu'.iljt upon this doctrini', that if reports are nuuli- to tin; shareholdci-s of u '""''"' ^^c't'niO'- ((iiiiliiiiiv liy the (lirectiirs, and the ri'i)ort8 are adopted by the sharchoMers at I'lic of tlie appointed meetings of the eonipany, and those reports are iiltriwards industriously circulated (c), undoubtedly rei)resentatii)ns eon- laiiied ill those rcpoitf* must be t^ikeu, after their udojition, to be ri'i>reseii- tatiiiiis iiiid statciiieiit.s made with the authority of the company, and there- Inre bimliiij,' tlic eonipany, Xeitlier do I think it would be at all expedient tO((UC':acity of agent, although the eonijiany weie 110 parties to those rei>resentations, and did not distinctly authorise them, it would still appear to be iiicijnsistent with natural justice to permit I'l'iliiity acipiiicd by the comjiany through the medium of those repre- H'ntatiinis to be retained by them. So far, therefore, as these reports are "lueined, tliey must be taken, I think, to be representations made by ilie company " (('). Loitl L'rainvorth expressed it as his opinion " That if an incorporated .Indgnuiii of "iiijiaiiy, acting by an agent, induces a person to enter into a contract fur bm'd Cianworth. till' liiMiefit of the company, that company can no more repudiate the ti-mduleiit agent than an individual could repudiate him, and that conse- '[Uumly the company are bound by the misrepresentations of their agent: ' iinl id'ttr alluding t(j the opinion he had exjiressed in the Xutloiuil Exdmwje '"iy«ii,|/ V. /'/•((/•, and which is given above, his lordship added — "To that opinion I entirely adhere, and I think it would have been 'fl9H. L. ('. 711. (:c nic^ir Co., 2 Eq. 264 ; 2 Ch. 604, and L. R. 4 H. L. 64. L| I VWW 214 LIADIUTV Ol- COMPANIES FOB ACTS OF THEIU AGKNT.s. Sect. 3 Ilk. n. Cliat>. U. applicable in thin casu if it liuil beun proved that there liatl bcun a fmuJu- lent representntion or concealment by the directorfi, in jnlei to imluc Mr. C'nnybeare to ])urcha8o, not sharefl in the market (that is a vitt ditt'erent thing), but shares belonging to the company ; namely, fdrlcitcl sharua. If the directors, or the secretary acting for them, had fruuilulemlv represented something to him which was untrue, I then udiiere to the opinion which I expressed in the fonner cases, that the company wouH have been bound by that fnuid. lint the piineiple cmncjt lie carried ij the wild length that I have heard suggested, namely, that you can brijg an action against the company upon the ground of deceit, liccnii»e the directors have done an act which might render them liable to smh an action. That I take not to be the law of the land, nor do I bt-lit^ve that it would be the law of the land if the directors were the agents jf some pernon, not a company. The fraud must be a fraud that is either peraniil on the part of the individual making it, or some fraud which nnutiur ]ierson has impliedly authorised him to be guilty of." riiiiclplcs applicable to tliexe coses. Distinction be* tween i-eports of directors and reiMrts of share* holders. The principles above laid down have indeed been ques- tioned {(') ; but so long ns it is law that a principal man lip bound by the unauthorised act of his agent, so long it will be impossible to deny that companies may be affected by the false and fraudulent representations of their directors, nlthotigh thev have no authorify to promulgate falsehoods. The fiilsehooii may be an excess of authority, but it does not therefore follow that it is imputable only to those who utter it : and it is now settled that'for all purposes of rescission of contract induced bv a false and fraudulent statement made by an agent of a com- pany, such'statement is, in point of law, the statement of the company, if the statement relates to a matter as to wliich he is its agent (/), and if it is made in the course, and ns part of the business which he is appointed to transact for the com- pany (g). Moreover in such cases there is no diflerence in piin- eiple between a fraudulent misstatement and a fraudulent con- cealment of a material fact (//). A distinction is sometimes drawn between false reports made by directors to the shareholders, and adopted by them and (e) See NicoVs case, 3 De O. & J, 387 ; Mixer's case, 4 ib. 575 ; Ex parte Barrett, 2 Dr. & Sm. 415. (/) See the ctiaes of rescission of contracts to take shares, ante, book i., c. 3, as well as the authorities re- ferred to in the present section. (y) As tothis ([uaIiHcation,seethe cases infra, p. 216. (h) See Peek v. Gurneij, 13 Eq. 79, and L. R. 6 H. L. 377 ; Uariwh English Jt. Stock Bank, L. R. 2 Ei. 259 ; and Oakes v. Timptand, L B- 2 H. L. 325. LIABILITY FOR FRAUDS. 216 tlien laid before the public, and false statements made by the Bk. II. chB|>. 3. directors alone to persons making enquiries of them with refer- eiice to the affairs of the company. But if such statements as the last cannot bind the company, it is difficult to see on what principle untrue reports adopted by shareholders can be re"iir(led is emanating from those shareholders who do not expressly adopt them. If the directors are not the agents of tlie body of shareholders, for the purjiose of stating what is fiilse, surely some of the shareholders are not the agunts of the rest for the same purpose. To say that u falsehood emanating from the directors is not imputable to the company, but that a falsehood emanating from a meeting of the shareholders is im- putable to the company, cannot be right. The same principles ought to be applied to both cases ; ard the distinction between representations made by shavelioiJers and similar representa- tions made by directors 's only sound when the representations relate to matters which the shareholders are competent to deal with, but the directors are not. It must not be concluded from the foregoing observations Rcpoits .imi cir- , . , , , • 1 1 .1 culars when not that circulars and reports issued by a company are to be imputable to regarded as representations by the company to any one who "°'"i'""y' sees them and is induced, even by an officer of the company, to act upon them. They will not amount to representations by the corapaiiy unless they were issued for the purpose for wliich they are afterwards used ; nor unless used by some person whose business it is to carry out that purpose ; nor unless used by him when acting on behalf of the company. This is well illustrated by Burnes v. Pennell (1)1 which is some- Bumos v. times, but erroneously, supposed to have decided that false reports made by the directors to their shareholders, and after- wards laid before the public, are not to be regarded as repre- sentations by the company. In this case a ^oiupany was paying dividends when it was not warranted in doing so ; its directors had issued and published false reports as to the flourishing state of its affairs ; some time after these reports had been / (0 2 H. L. C. 497, A'l'cori cote, 3 De G. See, too, & J. 387; %«"! eate, 5 Ji;r. N. S. 7 ; IForth'i ease, 4 Drew. 629 ; and see Peek v. Gumey, L. R. 6 H. L. 377, which, however, was an action for damages. 21G LIABILITY OF COMPANIES FOE ACTS OF THEIR AGENTS. Kk. II. Chap. 3. published, and ivhen in fact they were old, they were sliown Lv the law agent of tlie company to a person who was desirous df taking shares in it, and who ultimately did take shares in it i>\\ the faith of the representations made to him by the law agent, backed by the reports in question. It was held that tliese cir- cumstances afforded no answer to an action for calls. It was no part of the business of the law agent to induce people to take shares in the company ; no part of his business to inakf; any representations as to the affairs of the company. The cast' is an authority for the proposition that representations made by an unauthorised person, although an officer of the eompanv, do not bind the company, and that reports of the eompanv used by him to substantiate his statements are not to be re- garded as representations made by the couiijany to the person to whom he shows them. But the case is no authority fortli proposition that reports of directors are not reports of the foni- pany upon whose affairs it is part of their business to report. Whether an}' person who sees them is entitled to make use of them against the company is quite a different matter. He is only entitled to do so in one of two cases, viz., 1, if the reports are published for the purpose of being acted upon by the public, and he as one of the public deals with the comijany upon tLo faith of them ; or, 2, if, being used for the purposes for which they were i)ublished, they are so used by the agents of tlie company when acting within the limits of their real or apparent authority and on behalf of the company. Numerous other cases illustrating these principles will be found in the chapter relating to membership induced by false statements (Bk. I. c. 3, ((ntc, p. G8, ct seq). Passing now to actions for damages, the question whether a corporate body can commit a fraud and be liable in damages lor it, at once presents itself for consideration. Some eminent judges are of opinion that an action of deceit will not lie against a corpoj-ation {k) ; but the contrary has been decided more than 2. Actions for < lam ages. (k) See Lord BramweU's judgment in Abrath v. N.-E. Bail. Co., 11 App. Ca. 352 ; and ^)cr Lords Chelmsford and Cranworth in Addie v. Western Bank of Scotland, L. R. 1 Sc. & Div. App., j)p. 158, 1G6. See the comments on theiliiti i in this ca.se in Markaij v. VommrA Bank, L. R. 5 P. C. 413 ; and ffcii* | worth V. City of Glasgow Dank, I K- 5 App. Ca. 317. "ft. Ihinics V. I\ LIABILITY FOft FRAUDS. 217 once, both by tlie Privy Council and by the Excheqiui Chamber. Ill Borwirk v. Enfilish Joint Stock Bank (/), an incorporated banking company was held liable in damages for a false and frauchilent statement of its manager relating to the state of a customer's account with the bank. Ill Miichay V. Commercinl Bank of New Brunswick (m) the above case was followed, and a banking corporation was again beld liable in damages for a false and fraudulent statement of its manager, by which the plaintiff had been induced to iincpt a bill in which the bank was interested. In Sirire v. Francis (n) these cases were again approved, but this was not an action against a company. Swire v. Francin is, however, another clear authority to the effect that principals me liable for the frauds of their agents on iireciselj- the same (.'idunds on which they are liable for other acts which are not in fact authorised : and this the writer conceives to be the true doctrine (o). But assuming this to be the law it will be still true that a cumiiany (like any other principal) is not liable in damages for .1 false ami fraudulent rejn'esentation of its agent unless such representation has been made for and on behalf of the company ;u!d in the course of the business which it is his duty to trans- :nt, Bitriifs V. Pcnnell (ji), which has been already noticed, is all ilhistiation of the application of this principle to reports made by directors to shareholders and shown to other persons by agents of the comjianj', but by agents whose employment dill not extend to circulating the reports. So in British Mvtttal Bank Co. v. Cham wood Forest liailwun (''>■ iq), a company was held not liable for a false and frnudu- Kk, II. Chnp. 3. Sfict. 3. I'avwick II. I'lngliHli Joint Stock l!:ink. M.ickay (•. Oommei'i'ial liiiiik of New Hrunswick. S" ire V. Francis, Uritixli Mutual I'.auk Co. r. Cliariiwooil Forest Rail. Co. (0 L. li. 2 Ex. 259, a case of Irautlulent coiu'calnieiit. Compare HtwJevshinii, L. R. 9 Q. B. 301, hliich turned on the signature of I the manager not being the signature jof tlieLank, witiiiu 9 Geo. 4, c. 14, ('«' L. R. 5 P. C. 394. («] 3 ,\pj,. Crt. 10(i. t\ ^ee ]5igelow'.s Lead. Ca. on the Law of Torts, p. 25, e( saj. ; Pollock on Torts, 230, et seq. In Hoiilitg^trnrth v. City of Glasgow Bavl; 5 App. Ca. 317, ante, \>. 74, the liahility of the company, but for the winding up, was not denied by the House of Loixls. (p) Ante,]). 21!). See, also, /'"cA; v. Gurneii, L. R. 6 H. L. 377. (q) 18 Q. B. D. 714. Observe 218 LIABILITY OF COMPANIES FOR ACTS OF THEIR A3ENTS. Barnctt, HoarcH' & Co. V. Soutli liondon Trnm. Co. Frauds on Stock Exchange. Barry r. Croskoy. ^^' U' ?^^^^' ^' ^®^^* representation made by an agent for his o^vn purposes and not in fact for or on behalf of the company ; although the re- presentation related to matters as to which it was his business to answer inquiries. Again in Burnett, Hoares db Co. v. South London Tram. Co. {)•), a conii)any was held not liable in damages for a false and fraudulent representation made by its secretary, on the ground that it was not his duty to make representations on behalf of the company. In the two last cases the company derived no benefit from the misrepresentation. This circumstance was material on the question whether the agent was or was not acting for and on behalf of the company ; but if he had been so acting within tlie scope of his employment, ♦he fact that the company was not benefited would, it is apprehended, have been immaterial. In Barry v. Croskey (.s), it was attempted to make a com- pany liable for alleged frauds on the part of the directors in getting up the company and issuing its shares, and in procur- ing the recognition of the company by the Stock Exchange Committee, and the appointment of a settling day for it? shares. The bill charged that the company had adopted and ratified the acts of the directors, and that by the frauils in question the shares of the company had commanded in the market prices considerably higher than would otherwise have been possible. The bill then stated various dealings and trans- actions in shai'es of the company between the plaintiff and the broker of one of the directors, and that by these dealings auii transactions, which were in fact time bargains, the plaintiff haJ lost money in consequence of the frauds of which he com- plained. The plaintiff by his bill sought to have all the con- tracts into which he had entered with the directors cancelled, and to be repaid all the moneys paid by him under those con- tracts. To this bill the company demurred ; and the demurrer was allowed on the ground that the frauds complained of were, according to the jjlaintiff s own statements, such as could not that the person deceived did not know that the agent was not in fact acting for the company, and qu. whether sufficient weight was given to this circumstance. (r) IR Q. B. D. 815. {s) 2 J. & H. 1. LIABILITY FOR FRAUDS. 219 lie attributed to tlie company, but only to the individuals who Bk. n. Chap. 3. , Sect. 3. were concerned in their perpetration. The company had done nothing in order to induce the plaintiff or any one else to speculate in its shares; the company knew nothing of the iiliiintiff nor of his dealings, and had not in any way been liinefited thereby ; the damage moreover sustained by the pliiintif!' was too remote to be attributed to anything imputable to the company. The Vice- Chancellor observed that " if this were the case not of a company and its directors, but of an individual principal and of his agent, the principal could never lie held responsible in the maimer for which the plaintiff eiintends." For reasons which have been ah'eady explained (Bk. I. c. 3, § 1), a company is not liable in damages for false as distinguished finiu fraudulent statements of its directors or agents ; nor is a company responsible in damages for those acts which can only Companies a be regarded as fraudulent by reason of § 38 of the Companies act, 1867 (0. The personal liability of directors and others for frauds com- [ iiiitted by themselves has been already fully examined. See JBk.I.c. 3, §§ 1 and2. (0 Ante, pp. 91, 92. act. 220 MABIMTY OF CORPORATIONS. CHAPTER IV. OF THE PROPER FORM OF CONTRACTS WITH COMPAXIKS AND O' THE EFFECT OF FORM ON LIAKILITY, l!k. II. Cliiiii. i. Sect. 1. SECTION I.— OF THE RULE REQUIRING CONTRACT.S OF CORPitRATIi.V TO BE UNDER SEAL. It is a rule of the common law that, subject to one or two exceptio}is which will be noticed presently, a bodv loipoiate j 2nwatL'is ^^ "^* bound by any contract which is not under its corpninte seal ; and this rule has always been rigidl}- adhered to botlmt law and in equity (a). («) See generally, ou tliis subject, Com. Dig. Franchise, F. 13 ; Bac. Ab. Corporation ; Yin. Ab. Corpo- ration ; Grant on Corporations ; Pollock on Contracts, 4th ed., p. 14(i, ct seq.; li. v. niyg, 3 P. W. 419 ; Browjhton v. Thif Manchesfer and Salford JFatencorlcs Co., 3 B. 6 A. 1 ; anil on the ai)plication of the rule in eciuity as well as at law, see JFinnc v. I>ainptou, 3 Atk. 473 ; Taijlor v. Dulmch Hospital, I P. W. 655 ; Wihiwt v. Corporation of Covenf, .i, 1 Y. & C. Ex. 518 ; Carter v. hcan of Ely, 7 Sim. 211 ; Goodaij v. The Col- cJiester Itail. Co., 17 Beav. 1.32 ; Preston v. The Liverpool, ih:, Rail. Co., ib. 114, and 5 H. L. C. 605. An action will in some cases lie against a corporation for nionej had and received. Hall v. The Mayor of Swansea, 5 Q. B. 548 ; for money paid, Jefferya v. Giirr, 2 B. & Ad. 833; for nse ami occii)iatii'ii, /. d V. The London and Noith-W:'. h'nil. Co., 18 Q. B. (i32 ; ami Eccl. Coinrs. v. Mcrral, L, R, 4 Eil 162 ; but see Fiidaij v. Tk Et'-ii Hail. Co., 7 Ex. 40f>. As to ivti-aj by corporations on contracts li^ luider seal, pee iiouth of Irdmi '. Co. V. Jfaddli', L. R.":5 C. P. *:( and 4 ib. 617, overruling A''«' /■ don IFitterirorh Co. v. Iidihi.ih'i 283. See, also, MrArdk v, jVi Iodine Co., I.j Ir. (.'mu. Liw Ki| 146 ; Cqjper Miner/i' Co. v. /'«, Q. B. 229 ; Fishmomjiri Co. v.i^ hert.ion, 5 Man. & Gr. 131;.V(iwj Stafford V. Till, 4 King. 75 ; i»<| Taniere, 12 Q. B. 998 ; Ut I'M Dock Co. v.Sinnott,8 E.&lUtj 7>oev. ^oW,llQ. 15.127. S.Mij the engagement of a clerk to a won house, A ustin v. Guardiam i/fil (rVfifiN.L. R.9C. P.9J;aii>la'^'«'] appointment and retainer of a* ciior by an incorporatt JTlumis Hdvn, Doek C J Man. & Gr. 274 ; Ul E'Ktern Conntien j hi.-i44; If. V. Cmhe, h'i. 3;:3, which show the- jtmn the record will b jt-H.q,mi,i.Tly appointed Ititorsiiesa company for] J"- -f^'ice^ it U doubtl llifnmst not prove a reta jtfal. .See Arnold v. Tht jW,4.Man.& Or. rgo, mihi'jh v. North Uiei I^B.iE.873. Grant on Corp., f to the i)roper mode (. F *al an.l as to estopr P'tnts under si-al ii P«l, .\ra>jor, dr., „f the l*"'ly. Governor and C flEn,jhnd, 21 Q, D. D. IG .f) Oibmn v. J7i« Ea P"">'J, 5 Bing. N f "M V. Tlte Mayor 'of ON CONTRACTS NOT UNDKU SKAL. 221 At common liiw any senl affixed by the proper authority will Bk. y^^J|''JP- *• suffice (/') ; but any director or other agent of n limited com puiiv under the Companies act, 1862, who uses a seal without the conipiuiy's name engraved upon it makes himself liable to a penalty of 50/. (See sects. 41 and 42 of that act.) There is ;i similar provision in the Industrial and provident societies j„t, 1870 (39 .^- 40 Vict. c. 45, § 10, sub-s. 1, and § 19, sub-s. 2). Even a resolution of the members of the body corporate is not equivalent to an instrument under its seal (c) ; and a cor- iioration will not be compelled to execute a contract which it lias been resolved shall be entered into by it(d). A distinction was at one time supposed to exist between executed and txecutoiy contracts ; but except where the equitable doctrines of part performance are applicable, a corporation is no more Imuiul by a contract not under its seal, of which it has had the I lieiiefit, than it is by a similar contract which has not been j iictiil upon by either party (e). I citoi by an incorporated company, Irkiiirt Haven Dock Co. v. Hall, Man. v^ Gr. 274 ; Faviell v. I';'' F.n4eni l.'otnilies Ilail. Co., 2 E.\.;!44; 7?. V. Cinnhcrland, 5 Ra. 1 (.'i. 332, which show that the soliei- [t'li on the record will be presumed It'l/i' properly appointed. If a soli- ItiM sues a company for payment for v.! -eivices, it i.-s doubtful whether Ir must not prove a retainer under ■tal. See Antohl v. The Mayor of IM', 4 Man. & (Jr. 860, and eoni- Ipis Ihi'jh V. North Uierley Union, |EB,iE.873. ('); Grant on Corp., 5!). See [t to the proper mode of affixing *eal ami as to estoppels by in- jKranienta luuler seal improperly fisal, .V((i;or, c£r., of the Stajjle of Ijkfl V. Governor and Go. of Bank ^fjEvjkMl, 21 Q. B. D. 160. '(] Ghon V. Tlie East India feiiiii/, 5 Bin,L,'. N. C. 262 ; mi V. The Mayor of Poole, 4 Man. i Gr. 860 j Mayor of Ludloio a v. Charlton, 6 M. & W. 815 ; Smart v. JVest Ham Union, 10 Ex. 867 ; B. V. The Mayor of Hlamford, 6 Q. B. 433 ; Cope v. The Thames Haven Co., 3 Ex. 841 ; Dunstan v. The Imperial Han Co., 3 B. & Ad. 125. {d) Wilmot V. The Corporation of Coventry, 1 Y. & C. Ex. 518; Tayhr V. Dulwich Hospital, 1 P. W. 055 ; Carter v. Dean of Ely, 7 Sim. 211. (e) Mayor of Kidderminster v. Hardvnck,h. R. 9 Ex. 13; Mayor of LudJow V. Charlton, 6 M. & W. 815 ; R. V. Stamford, 6 Q. B. 433 ; Paine v. The Strand Union, 8 Q. B. 326 ; Lamprell v. Tlie Billcricay Union, 3 Ex. 283 ; IHyyle v. The London and Blachvall Hail. Co., 5 Ex. 442 ; Homersham v. The IVolver- hamptan Waterworks Co., G Ex. 137 ; Arnold v. The Mayor of Poole, 4 Man. & Gr. 860; Cope v. Tlie Tliavies Haven Co., 3 Ex. 841. Courts of equity did not interfere in these cases. See Crampton v. Varna Kail. 222 LIABILITY OF CORPORATIONS. Bk. 11. Chap. Sect. 1. Exceptions to t)ie genenil rule. But strict as is the rule in question, it is and always has been subject to qualification. There are, it is said, some matters of so trivial a nature that they can be done so as to bind a corporation in the absence of any instrument under its seal (/) ; and what is more to the present purpose, it is held that if a corporation is created for a particular purpose, it mil be bound by unsealed contracts entered into on its behalf in the ordinary course and bond fide for the purpose for which it is created (g). Upon this principle the East India Companv was held liable to be sued upon bills of exchange nceopted nn its behalf, although its seal was not upon them (//). So "as companies have been held bound by agreements, not under seal, for the supply of gas (i) and gas meters (k) ; a navigation company has been held bound by a contract, not under seal, for the navigation of its ships (i) ; a railway companv has been held bound to pay for rails, oil, and paint, &c., supplied to it on the order of its officers (»i) ; a colliery company for pump- ing machinery supplied for the pui'poses of its colliery (n); a poor law union for coals supplied on similar orders (o) ; and a municipal corporation owning a dock for refusing to admit a Co., 7 Ch. 562 ; Kirk v. Tlie Bromley Union, 2 Ph. G40 ; Ambrose v. TJie Dunmoto Union, 9 Beav. 508 ; Jack- son V. The North Wales Bail. Co., 13 Jur. 69 ; The Directors of the Mid- land Great West. Rail, of Irelaiul v. Johnson, 6 H. L. C. 798. As to the effect of affixing the company's seal after the contract has been partly performed, see Melliss v. Shirley Local Board, 14 Q. B. D. 911, re- versed on another point, 16 Q. B. D. 446. (/) See as to this, South of Ireland Coll. Co. V. Waddle, L. E. 3 C. P. 463, and 4 ib. (517 ; and Eaton v. Basher, 7 Q. B. D. at p. 532. {g) See as to the last condition, Ebhv Vale Co.'s claim, 8 Eq. 14, which, properly understood, is not inconsistent with the text. (h) Edie v. The East India Co., 2 Burr. 1216, and Murray v. Dk East India Co., 5 B. & A. 204. (t) Church V. The Imperiid '.« Liijht Co., 6 A. & E. 846, (k) Beverley v. The Lincoln (rii Co., 6 A. & E. 829. The judijiutnt in this case deserves more atteutkn | than it has received. {I) Henderson v. The Auslnilm \ Eoyal Mail Steam Naviij(dion LI, o i E. & B. 409. (m) Eblm Vale Co.'s claim, 8 E'l. 14 ; Deutonv. EastAnfiUunRA'y-, 3 Ciir. & Kir. 16. Compare t'liFl Miners' Co. v. For, 16 Q. B, 3, where the corporation was lieU not i liable for iron rails. (n) South of Ireland Coll. CcU Waddle, L. R. 3 C. P. 463, and 4 it. j 617. (o) Nicholson v, Bradjidd ftuHij L. R. 1 Q. B. 620. ship which the; other hand it w company was no its docks (q) ; ai are not bound b The exception with caution (s). Anotlier quali the equitable doc has entered into perforaied, and if cunistances are ,si performance of tb individuals, tlie C agreement, and wi of the corporation A corporation n I previously entered ip) Wells V. The M I LK. IOC. P. 402. ('/) London Dock Co. |E.iB.347, But see > U'tith of Ireland Coll. d I ii4i' my. ('■ Austin V. Guardiaj iGrmt, L, R, 9 C. P. 9] |fo" V. Clifton School 1 |B. D. 500. i These "jceptions d ■-''-■ ccrporatic '■•'■.if\\ lire n '■:tes to be i '•'' w'.iig cases •t'' «ct, 187.0 ^iet.c,5,'^,§§ 173 & 17 '•'.'M-.J/rt,,o, of Lnmi n B. D. 57!i, 8 App, F*" V. Baska; 6 Q I Ve^ed 7 Q. B. D. 52 '«'»'d that the, let did n f«Mitract in question tc ■',''^'"" V. JVimblec "''3C.P. D. 208, 4 .-••A- ox CONTBACTS NOT UNDER SEAL. Ship which they had agreed to admit in its turn . ^ ^ other hand it was held in a weU.oon»;^ ^ ^^^* ^" "^^ Hk II. Chap. 4. company was not bound by anllL t ''"' *'^* * ^^'^^ ""' ' itscioch(,); and still .'ore rec:;^;^^-; ^^ cleansing are not bound by an unsealed agreement. ' ^""'"^'"'^"^ The exception in question, therefore If ^'"^ " ''^'^•^^^)- with caution (.). ' '''^'^^'''^' "^"st still be applied Another qualification of the general rul • r the equitable doctrine of pai-t performan.P ' t'. ""'^^'^ "pon Pn,t perform. has entered into an unsealed alemenfT' k f ' ««''Poration '"''«■ Perfomed. and if the nature oTthT "" ""'' '^^" ^'^^^"^ o.-tances are such as would induce a CouhT T' '""^ ^"- performance of tJie contract if the narM.! . ' '^'''^^ i"'lonI)ockCo.v.Sinnott,8 •^ B.347 But see on this case, Yf^f Ireland Coll. Co. y.JVaddle ./'^\''^^'y-.Guanh-ansofnethnal :* These .j-ceptions do not apply ""■;';-. "^'-rporations, the con NortlKm Rail ,u ,„ ■., ^'*^'" -^i<'!i are required by ' ,,' ;, *-'** *'-• ^'e under seal. ;„" -''"'"g cases under the r "' «ct, 1875 (38 & 39 -.:^i:^t^i^-- ;:tfM>.ei;:ner;: John,. 600; mkony.jre jjl,'' & 17 SV:^ fr'--<-'^^ 1 Sin. college 7 Sim. 222, note ; »,,,„,. f ''*';« ^°»tract was not one whkh could be specifically enforced tJ and Hereford Hail. Co., 3 K. & / '» p« ;z,r,rrr"«- (w) See ««<,, book ii., c. 2, § 4. 224 MAIULITV OF CORPORATIONS. Ilk. Estoppel !)>• record. Ell'uct of it jiulgment. pL ^''?''' ^" ^"^' otlier rntificiition of a contract required to bo under schI - will bind the corporation is questionable (x). It has, indeed, been said, that a corpoi'ation which sues upon an unsinleil contract thereby irrevocably ratifies it by matter of record: and that the invalidity of the contract sued upon cannot avail as a defence to the action ; and further, that if the corporation is afterwards sued upon the same contract, it would lie a- toi)ped from denying its validity («/). These propositions liavc, however, been denied by high authority and cannot be relied upon {:). If, however, a corporation is sued upon an unseuled a"rei- ment and judgment is obtained against it, the corporation will not be allowed afterwards to repudiate the agi-ocnient, as against the person who has obtained the judgment, unless tho judgment can be shown to have been obtained by fraud ; or unless the agreement itself can be impeached for fraud and the question of fraud was not in issue in the action iu wliicli judgment was obtained (rt). Before leaving the present subject, it maj' be observed llmt although an instrument sealed with the corporate seal is pmi. facie valid, yet if the seal is essential to its validity, and if it be proved that the seal was improperly affixed, c//., was affixed by a person having no authority to use it, the instru- ment is void as a corporate act (b). But those persons who in practice conduct a company's business, have implied autlioritv Seal iiiipioperly atKxed. (v) See the observations of Lord Blackburn, L. R. 9 Ex. 261. (i/) Fishmongers' Co. v. Robertson, 5 Man. & Gr. 192. («) Mayor of Kidderminster v. Hardwicke, L. R. 9 Ex. 13 ; Go]ifer Miners' Co. v. Fox, 16 Q. B. 229. (a) See Williams v. St. George's Harbour Co., 2 De G. & J. 547 ; Huhtt's case, 2 J. & H. 306. In The Athtnmon Life Assur. Hoc. v. Poolcg, 1 Giff. 102, and 3 De G. & J. 294, debentures were set aside, although in Agar v. Athtnmvm, de., Co., 3 C. B. N. S. 725, judgment had been obtained on another of like nature. But in the latter case the only plea was non est fudn, and no (question of fraiul, even i( I there were any in that case, tc raised. As to what fraud itiD j avoid a deed at law, see Wright v, : Camphell, 2 Fos. & Fin. 393. {h) See Mayor, .Cr., %/« "/I England v. Governor and Co. ojhil of England, 21 Q. B. D. 160; &i| of Ireland v. Trustees of Eml\ CJiarities, 5 H. L. C. Colchester v. Lowten, 1 V, & r| 243, 244; D'Arcy v. Ta\mtj4 Bail. Co., L. R. 2 Ex. 158. ftm-l pare Ex parte The Contract Cof-i ration, 3 Ch. 105. ON CONTRACTS NOT UNDEU SKAL. or. to use its seal for the purposes of such busiuess (r) ; nnd n ^'•^- ^}- '^''■'i'' '• coipoi'fttion will be estopped from disputhif,' the nuthority to ■ — tix the seal if neglif^enoe imputable to the corporntion hfis oiiuluced to the misuse of the seal and to the misleading of tlio person relying on it {d). JKCTION II, -STATUTORY EXOEPTIOXS TO THE FOREaOINQ RULE. The general rule, that a corporation is lot bound by any Contr icts of 1 •. 1 !• . 11 • ..I CDiiili-'iiifa. fdiitract not under its common seal, applies to all nicorporated companies, save where it has been abrogated by statute ; ivheiice it follows, that in order that an incorporated company may he bounil by a contract entered into on its behalf, the I ontiact must fall within one of the exceptions already referred til, or be under the common seal of the company, or be entered into in the manner and form directed by the statute ■which em- powers the company to contract in some other mode(<'). It is important, therefore, to ascertain what statutory enact- nunts there arc bearing upon this subject. The Banking act, 7 iico. 4, c. 46, and the Letters Patent statutory I r 11-11 i.-.T- w, -^ 1 1 1 11 enaotmt'uts. hot, ( Will. 4 iV: 1 N let. c. 73, leave the common law untouched [ as vcgaids the question now under consideration. But com- [aiiies regulated by these acts are not incorporated by them. The Joint-stock companies registration act, 7 & 8 Vict. c. jllO, ^§ 4:1-40; the Joint-stock companies banking act, 7 & 8 IMit, c. 113, § 22 ; and the Joint-stock companies act of 1850, IHl, all contained provisions on this subject; but these acts p now repealed, and it is not necessary further to allude to '')Sec£.; parte Contract Corp., .'i 1.105. 1 1'^ See the first two cases in note I l(*) Jfom«rs/i«m v. Tlie JFolver- l¥'>n^VutmiwhCo.,(iY.\. 137; m'^: The London and niackmiH I ^''■. 5 Ex. 442 ; Cojje v. The Thames Haven Co., 3 Ex. 841 ; CopiKi' Miners' Co. v. Fox, K! Q. B. 229 ; and see. Ernest v. NichoUs, (J H. L. C. 401. (/) Upon 7 & 8 Vict. c. 110, § 45, relating to bills aiul notes, see Hal- ford V. Cameron's Conlbrook Co., 16 Q. B. 412; Edwards v. Canurons ii2G MAUILITY OF CORPOUATIONS i;k. ir Sfc<; Clmi). 4. t. '.'. (I) Mctifipolit.'in ),'IIM nut. (2) 8 & Vict, c. 1(!. Cases on this act. (1) r>y the Metropolis gas net, 1800 (//), the contrncts of gns coinpanies regulated by that act and entered into in accdiil- anco with it are binding without any seal, if signed l)y twd nr iu)ro directors, or by the company's secretary, or other oliicir, by the authority of two or more directors. (2) The Companies clauses oons(didation act, 8 i 9 Vict. ('. 10, renders it lawful for the directors of a company to wliicli that act apphes to appoint committees (§ 05), and enacts (I'fi) that the power of the committees as v/ell as the power of the directors to make contracts on behalf of the company iiiav lawfully be exercised as follows: — "With ivrtpcct to niiy contract, which if made between inivutu ])itm<, Wdiilil li(! liy l;nv ii'iiiiircd to lie in writing iiiul iiiuhT seol, siii liiniiiinitlie oi\llic (lii(cli)is limy iiiiiki' ^iicli contract on behalf ol' the ciiiii|ianvin wi'itiii;^ anil iindiT the coniinon seal of the company, ami in tliu >nmt manner may vary or ili.'-char;,'i; the same. " With respect to any contract, which if made between private ^■Tsunf, Wiiuhl be by law rcquireil to be in writing,', and sip,'ned by the parties to k charf,'ed therewith, then such committee or the directors may niaki' fU.li contract on behalf of the company in writin},', sijjned by sucli tommittee or any two of them, or any two of the directors, and in the same maimer may vary or discharge the same. "With respect to any contract which, if made between private partie-, would by law be valid though made by parol only, and not reduced into writing, such committee or the directors may make such contract on 1* of the company by parol only, without writing, and in the same nianw I may vary or discharge the same." This enactment does not render a company liable on a I contract entered into by its directors in writing, but not pur- Coalhrook Co., G Ex. 269; Ayys v. Nichokon, 1 IT. & N. 1G5 ; Hcaku V. Stury, 3 Ex. 3 ; Alk7i. v. The Sea, Fire, lunl Life Insurance Co., 9 C. B. 574 ; Gordon v. The Sea, Fire, and Life Insurance Co., 1 H. & N. 599. As to § 44, relating to other con- tracts, see lUdUij v. The Plymouth Grindintj Co., 2 Ex. 711 ; Fx jiarte Fayle Inmr. Co., 4 K. & J. 549; liiMhro'' V. Hull and London Fire Inmr. Co., 3 II. & N. 789 ; Fmtish Empire Co. v. Fr-jirne, 12 C B. 723. As to § 29, relating to contracts with directors, see /S'/wr'.* cm Johns. 480 ; Fnust v. KiMs «! H. L. C. 401 ; Cnrteis v. Anikl Insur. Co., 2 11. & X.5;]";W not bound to | ti'.i' (, nIthon-,dt t "iii'tr Ibu ,sn])ci 'lircctoi's to HOC tl tlie same time, wl ' contract wbicJi, i] j would be valid, alt in the absence of i nils duly iiiiulo by i Jf'ftllCUJ, oi'I,yau,l 'lio eonipaiiy. Uj I*on held liable t,, joccnpiedbyitfortl m .sIeoi)ers fan,isJ hpnm-{,i,); altho him that any expr Jciitemlinto on bel f "mmittee of them. Ordinary iutlividu; : W) See Serrcll v. 77,, *'■> *"■'■ Co., i) Q J> J'*'";" V. Giipi,,^ 5 Q. ,^'"«'«Q.lU).5i6, hm^m governed by F't^act, lH(i2. I (•) Lmu,,ter Canal C ON CONTIUCTS NOT tINDKU SKAT,. 227 iiortiiif; to Itiml tlio coinpanj' (//) ; nor on a contrnct nMinirod I'.k. II. cimi). 4. td 1)1! under soul or sij^nod by two directors, but wbicli is neither '■ • iiiidt'i' sciil iiiir so sij^iKMl, allliougli tlu; comitany may bavu hail tiiu buiiclit uf tlic contract (('). JMorcover, notwitlistanding the "encrul words of tiie last cbuiso of the enactment, it has hicn decided that wliere a company lias entered into a contra t. ill [ii'oper lonii for the execution of certain s[)ecilied works, it is not 1)01111(1 to psiy for extra works not done under the con- tnii t, ftltliuiij;h they may have been done by the orders and under tlio supcriiitcndenco of the oflicer appointed b}' tlic directors to see the specified works properly executed (A). At the same tiuic, where the company has had the benefit of a coutmct wliicli, if entered into between ordinary individuals wiiiild lie vidid, although not in writin*,', it will be presumed, in the absence of evidence to the contrary, that such contract was duly made by the directors of the company or a comniittec loftlicm, or liy an agent duly appointed, so as to be binding on the comiiaiiy. Upon this principle a railway company has ken held liable to pay for the use and occupation of land occupied by it for the purposes of its business {/) ; and to pay Ik' sleepers furnished to the company at the request of its [engineer (»(); although there was nothing in either case to Isliow that any express written or parol contract had been lenteivd into on behalf of the company by its directors or any Iciiimiuttee of them. Ordinary individuals can appoint agents verbally, and the The Siatnio of fraiiil.s and the (.'umiuinies Tr' , J /( ,. -n ■,.-,-, c. clauses act. JVidmcorlcs Co., G Ex. 137. See, il) See HemU v. The Ikrhjshin; U'lil Co., 9 C. B. 811 ; and Wlin V, Giliiiii, 5 Q. B. D. 390 niiwl (i Q, 15. 1), ,'jio, the case of j cfjinpany governed by the Coiu- ini« act, 1862. [[Htomhiskr Canal Co, v. The hvAnrij and Ilcrcfurd Hail Co., 3 • i J. Co4, See, too, Diifjle v. f«4ii and r.hickwaU Hail. Co., 5 F; Hi ; Midland Great ircskm H CV of Ireland v. Johnson, (> J L. C. 798. But see as to cases [lartiKTformance, f(»/e, p. 223. ('•) Uommkm v. Woherhamjyton further, aa to extra works. Hanger v. The Great Western Rail. Co., 5 H. L. C. 72 ; and Ni(on v. The Tuff Vale Hail. Co., 7 Ila. 13G ; Kirk v. The Bromleij Union, 2 Pli. G-IO ; Lamprell v. The Billcricaij Union, 3 Ex. 28.3. {I) LoiK V. 2Vm; London and Xorth- IVestern Rail. Co. 18 Q. B. G32. See Finlaij v. The Bristol and Exeter Bail. Co., 7 Ex. 40!). (»() raulimj V. The London and North- JFeMcrn Bail. Co., 8 Ex. 867. See further oil this sulyect, o.nte, p. 222, Q 2 '228 I.IAIIIMTY (»r COltrollATIONS Thu Liirds cliiu.'CH not, Ilk. ir. ciiftp. 4. .Jtli 1111(1 17tli sections of the Stntuto of fnuids, wliuh in per- ^,i,„ cases ri'qnirc contracts to bo eviileneed by some wriliii:- sii^nod by the party to 1)0 (diai'gcd, or liis aj^out, do not rcnlr it necessary that the U},'cnt tliere spoken of shouUl be iii)|)iiiiitni ill writing (h). Ileneo a written contract entered into ,1, behalf of a railway company for the purchase of land, and signed by its agent, is apparently binding on tlie coiiipiinv although the agent may not have been appointed under stal or by any writing signed by two directors or meiubcis of ,1 committee (<>), It is beyond tlie scope of tlie prt!sent work to treat ui \l method in wliich companies governed by special acts ol' I'mlii- nient and tlie liunds clauses act can obtain land tor tli(|ni!- pose of their undertakings ; but it is not altogether irreleviuii to observe that where parties have agreed to refer qucstiom of disputed compensation under that act to arbitration, tlie appointment of an arbitrator on the part of the coinpnny niav be made by the secretary (j>). (8) The Companies act of 185G contained a clause (lyUimiLir to that which occurs in the Companies clauses consolidntii ;i act {)') ; and although the act of 185(5 is repealed, it has been decided that companies formed and registered under it iii,iv Tlio Ooiniinnios stiU be bouud by unsealed contracts (s). The Ciinipaiiiisiirt, I 18G2, contained no similar clause : but this defect has lietii cured by the Companies act, 18(57 (t). Under it a mcinoraiKliiia j signed by a director is sufficient to bind the company so far the Statute of frauds is concerned (11). (3) The Compa uios act, l.sfiO. ails, lt>ti2 unil I5O7 (7) 1!) & 20 Vict. c. 47, ni' (/•) Ante, p. 22G. (.s) Prinre v. /Vt'/uv, I E4. «, (0 30 & in Vict. c. iai,}3:.j which is simihir to 8 & 9 Vict.c.lij § 97, above set (Uit. See, a- to tlul act of I8(i2, South nf LrhmUA'M (u) Cokx V. Trccothkk,9 Ves. 250 ; C'limui V. Cooke, 1 Sch. & Lef. :51. Madmn v. Dnnii, 4 ]5ing. 722, shows that u vei'hal rutitication of a previ- ously unauthoriscil agroement signed by an agent rumlurij the agreement binding on tiie principah (0) See the cases on the Companies v. Wadilb', L. R. 3 C. P. -103, n\ < act, 1867, in note {u). See, also, ib. 617, niul TotknHl v. />'*' Wilson V. IVest Hartlepool Rail. Co., Brick Co., L. R. 1 C. P. 074. 34 Beav. 187, and 2 De G. J. & Sm. («) Jones v. Victoria CmmM 475, where, however, this point was 2 Q. B. D. 314. See, also, /'■' '■ not alluded to. London and I'arii Ilotil CO'i-''^ (p) Cnllinn Y. South Staffordshire 412. Rail. Co., 7 Ex. 5. ON CONTllAirrS NOT irN'PKIt Hr.AI.. 22I> Tho net nlso provides for tlio niipoinliiicnt \>y n coiiipniiv ''''^- ','• ''''|i'- ' iiidcr its (iiimiioii seal, of a},'('iits ti» cxi'ditc dreds ul)n)iid, and Sirt. WW lers deeds I'Xeeiitfil l)y tlu'iii as valid ns if sealod by tho ni.rou.l IHm.'iI.s (•xnciituil lll|"ll IV ^c). This provision has hcfii oxtt mh'd hy n sub- ''"nipntiicHMul; •iiueiit lilt ol' I'arliameiit (//), uhirh aiithoiiscs conipaiiii's 1110(1 liv the Cimipaiiic'S act, IHO'i, and carryini^ on Imsi- ii.!t, 1801. [(IV( lll-S ill loiei^'ii coiuitrii's, to ko('[) duplicate common si'mIs there, !i:iviiii.' eii},'mvcd upon thoni tho luuno of the place in which tluv me to be used. Tho act, however, only applies to coui- jiiiiiiis expressly authorised hy their articdes of association, or :i >iHriid resolution to exercise the powers j^iven hy the net ; ;iiiil the lu'isdiis entrusted with tho seals nnist he specially (I t. them by ■ilri It iti ndi some the ciiiunioii seal of the company, instruments s'aled hy Midi persons in the place to which the seal entrusted to them iiplilies, nre ns binding on tho company ns if such instru- luiiits had been sealed in this country with the ordinary common seal. ( ■) 5 '''^- tliis act in the iijipemlix, and its (;/ 27 & 2H \'iii. V. 1!). It lias ^iiiuial elRet only is atlempletl to I ii"tbctn thought necessary to print lie j^ivon ulwve, 280 r.k. ir. Chap. 4. Sect. 3. TilABILITT 01' COMPANIES Bills of Excliangc act, 1S82. Instrnmcnfc umlor seal. CninianicB act, SECTION III.~OF BILLS OF EXCHANGE AND PROMISSORY KOTL^ By the Bills of exchange act, 1882(c), a bill of oxcWo may bo made payable to the holder of an office for tlic timt being. The older cases therefore to the eft'ect that a Liil payable to the secretary or treasurer for the time being of a company, is invalid (d), are no longer law. In general the persons liable to be sued on a bill of ex- change as drawer, indorscr, or acceptor, are tlie persons wlw have signed it as such and no others (e) ; but this rule (loesii„t affect the provisions of tin; Companies act, 18G2, nor any an relating to joint-stock banks or companies, or the Bank of England or Bank of Ireland (t'c). The power of a corporation to bind itself by drawiii:, accepting, or endorsing a bill is left by the act to depend iip.i:i the law for the time being in force relating to corporations ((;, This power, so far as regards companies, has been ahead}- alluded to (f/). It is doubtful whether an instrument under seal can by t!ie law merchant be a negotiable instrument (h) ; but uowbyllie Bills of Exchange act, 1882 {Itli), if tin incorporated compaiiv has power to draw, accept, or indorse a bill, and it docs S' under its corporate seal, the company is liable to be sued on the bill. The Companies act, 18G2, expressly enacts that promissoiy notes and bills of exchange shall be deemed to bo madi. accepted, or endorsed on behalf of a company registered umkr the act, if made, accepted, or endorsed in the name or by or (c) 45 & 4G Yict. c. Gl, § 7 (2), and ste as to promissoiy note?, (il) Yahs V. Xash, S C. ];. X. S. 581 ; Storm v. Slirlinn, 3 E. & 13. «32, mid CoK-ii: v. Sfcrliiuj, (I E. & ]J. 333. (fl) 45 & 4(i Vict. c. C.l, ^S 23, aiul .spc § 89, as to promissory notos. (ft) Ih., § !)7 (3). (/) lb., § 22. (f/) Pik. i., c. 2, § 2, nnd miti', p. 185. (/() See Crouch v. CreiUt Foml nJKnijhml, L. 11. 8 Q. B., at p. HI 111 E.C 2Mrte Citij ]l'inl:,'i C'li.'>.j the holder of a di'beiiture rayilltl" boiiror, and under the wal vl tliej company, was lield eiitilk'Jtoircwj I'or its amount, and jvr Silivyi.] L. J., it was a preiiiisjorj no.v.j See, also. Ex park Colhom «"' Strawhriihii; 11 Ecj. 478. (hh) See45it4fiViot.c,(ll,(''lj ' siipiioses thai ON BILLS OF EXCHANGE AND PROMISSORY NOTES. 281 on bc'lmlf or on ficcount cf the company, by any person acting i'^- IJ' ^''''^i' Sect. 3. under its authority (/). Moreover, if any director, manager, or ofBcer of a limited fompmiy signs on behalf of the conijiany any bill or note without adding the word " limited," ho is personally liable to ]);iy tlio same, unless it is duly paid by the company (/i). Directors and others constantly make promissory notes, and LiaMlity of i. 1 -11 • 1 ' i 1 -i directors, draw nui. accept i)ills in sucJi a manner as to malvc it very difficult to iiiy whether they personally, or only the companies for whom they act, are liable upon the instrument (/). The ijuestion is in every case one of construction ; is the bill or note the bill or note of the company or not? Does it really purport so to be ? for, although given fov the purposes of the com- jwny, tlie bill or note may not even purpm-L to bind it. If on tiio true construction of the instrument the bill or note is the bill or note of tlic 'ompanj-, the company will be liable upon it, and not the individuals whose names are on it (m), unless the bill or Dotf is the bill or note of both. On the other hand, if on the true construction of the bill or note it is not the bill or iioteoftlio company, the jiersons whose names are upon it will be liable upon it, whether the_v intended to be so or not. The following cases illustrfitc these principles. A bill dmwn on the directors of a company, and accepten for the company by its manager and three of its diioctors, binds the thive directors who accept the bill, but no one else (n). A Ikliiiri, a bill drawn on the agent of a company, and accepted [ by him simply in his own name, binds him and not the com- iy("). On the other hand, a bill dravii on a company and iaKeptcd by its directors, secretary, or other autlun-ised agent (•■nits behalf or as its agent, binds the company and not those [who accept the bill, except so far as they are members of the [i]^ 47. Sec Ex imrle Overcinl, ii;ive it will be liable, U't.t Limthm |''Vw;(tCo., 4('li. 4G0; lie Barber Commvrdal liimk v. K>l.<»n, V.i Q. |iii'.,!l Ei|. 72:). B. 1). 3(;o. See, also, as to not luld- (ij 1 42 ; I'umsc V. Martyr, E. U. ing " limited," ante, note {k). ^^^■■^!'••. (») null v. Afor^II, 12 A. & E. Ste as ivgiU'ils firms, Parlii. 745. h%'t^'h (a) Jliirirrrij v. dill, 1 :\I..(>. iJc 11. (w) This supiiu.-iea that the bill is 4.")0, ami 4 C. ^S: P. 121 ; '/'/i-'mc.s v. nstuftn n'av, for if it is tlio.se who JH^Iiop, 1 JIoil. ISsi. 232 LIAUIHTY or COMrASIES l.k. II. Chap. 4. conipniiy {]>). But to this last rule there is an cxcciition ns already noticed {q). ExamploR of tlio forufi'iiii'' nik'H. Tlioin IS i: Iii.fliOi). SerioU )'. The Di'rliVMhiio, Xe Jvailway Ouiu- luiiy. T3iilt )•, Morel!. In Thomas v. Bi.ihop (r), the bill wa.s drawn on Jnhn Bishop, rn.ihiir nj tl York ISaildiwjs OoinjHtnij, and was acceptt'd by Bislioj) in liiis dwii inline without ivleience to the company, and he was held by Lord ilarJwiokt to be personally liable on the bill. In Seirell v. 'I'lte Ikibij.ihiri', StaJfordsJiiir, dx., Bailmty Coiiip(nni{sl ;i ' clierpie was drawn on the bankers of a company, and was signed bv tluio director.'!, and c(junter.-iij,'ned by the .secretary, and on the cheiiue was ;i dale .■, with the name oi the company in a circle round Ihe date ; kit tlic company was hehl not liable upon the cheque, for it did not pmport in be a chec^ue of the company. The per:^ons who signed the clieciue iiail ii"t even signed it as directors. In liv.lt V. Mordl{t), the bill was drawn on The Directors of Ihc hi\]er proc. West Doivns Minimj Company." Diumoinhvaj held liable on this bill. Marc V. Charles. In Mait v. Charles {x),a, bill was drawn on Wm. Charles for gooils siipjilit'l to a mine, and was " accepted for the company, JFm. Charles," iXudWurnvjl- auce was held to render Charles solely liable. NiclioU-i )'. Diaiiiouil. Promissory mitcs. Penkivil c. ConncU. Similar i)nuciples arc applieahlo to promissory notes. In the folh)wing cases the makers were held personally linUt; upon them : — We, the directors of the Royal Bank of Australia, for ourselve? anJ other shareholders of this company, jointly and severally promise tu pay, &c., value received on account of the company. T. W. SUTHKRLAND, J. CONNELL, M. BCYD, A. Duff, Directors (;/). (j)) See Edwards v. Barnard, 32 C'h. I). 447 ; Edwards v. Cameron's Coalhrook Co., (3 Ex. 269 ; Hulford V. Cameron's CoaVwook Co., IG Q. 15. 442, and Eastwood v. Bain, 3 H. & N. 738. {([) See, ante, note (/,•). (»•) 7 Mod. 180. (s) i) C. B. 811. (0 12 A. & E. 745. \h) !) Ex. 154. (.y) ,^ E. & B. i)78. [y) iVjito-i7v. Co»»r//, 5 Ej.Wj See, also, llcaley v. Stuwu ^ ^■'^' ON BILLS OF EXCHANGE AND I'ROMISSORY NOTES. Midland Counties Building Society, AVe jiiiiilly and severally promise to pay, &c. S. B. Smith, } T).roctors. W. D. Fisher, Secretary (;.). 233 ]5k. II. Chap. 4. Sect. a. ]k)ttoii)lcy V. Fislicr. Midland Counties Building Society, Two months after ileniaiid in writing we promise to pay Mr. Thomas Trice ?•. Taylor. Price ilOO, for value received. \V. H. IIliATII, ) ^ John Taylor, i T™'"^^*^^- W. 1). FisHKR, Secretary (a). Even if the company's seal is afTixed and attested the Dutton v. ,, , -ii 1 1- 1 1 •<• 1 • Starsh. ilirectors si{:;nni<^ the note will be liable it they promise to pay, i,m Dutton v. Marsh (b), Avliere the note ran thus : — We, the director.s of the Isle of Man Slate Co., Limited, do iiromi.se tdimy J. D. £1,G00, with interest at (i per cent, till paid, for value received. Signed by four directors. The company's seal attested was in one corner. In Miller v. Thompson (c) the following instrument, drawn Miikr j-. iiu joint-stock bank, b}' the manager of one of its branches, '""'i'*'°"' im held to be the promissory note of the directors of the lliink, and to bo binding on them personally ; London Trades'' Joint Stock Banking Com}xiny, Dorking, Surrey, 2ith August, 1830. Six nioiitlis after date, pay, without acceptance, to the order of John I'pau Francis, Esquire, JlOO, value received. (Signed) For the Directors, Thomas Nkwham, Manager. (Addressed) The London Trades' Joint Stock Banking Company, 33, Gracechurch Street, London. ptlic other hand, companies have been held bound by notes Notes of com- 1 the following forms:— i"""'''- [(••; Mtomlaj v. Fisher, 1 H. & C. 234. (h) L. 11. G Q. B. 301. |!'; Prictv. Taylor, 5 IL & N. 540. (r) 3 Man. & Gr. 57G. "upate Limlns y, Melrose, infra, p. 284 LIABILITY OF COMPANIES lOK CO.VTRAC Bk. II. Chap. i. Sect. 3. Aggs ti. Nicholson. Moclao V, Sutherland. Lindiis V, Melrose, We, two of the directors of the Ark Life Assurance Sncietvlv and on behalf of the Society, do hereby promise to \y,\y, &c. valac received. (Signed by two directors, and sealed -with the seal of the Company) M\ Wb, directors of the Royal Bank of Australia, for oiirselvis an I other shareholders of the Company, jointly and severally proiiii-c to pay, &c., for value received, on account of the Company. J. W. Sutherland, Chairman, Adam Ddff, j John Mitchell, | directors (.;). Entered, Benjamin Wood, Secretary. We jointly promise to pay, &c., for value received in stocl;, on account of the Loudon and Birmingham Iron and llanlware G m- pany, Limited. James Melrose, -j G. N. AVooD, [Directors (/J. John Harris, ) Edwin Guess, Secretary. Allen I'. Sea, Fire, &c., Com- pany. The following instruments have also been hcltl to be pru- missory notes binding on companies : — Sea, Fire, and Lije Ammma Socidt To the Cashier, Credit A., or order, with the sura of, &c., on account yf tliii Corporation. A. Davis, ) AV. OoiLviE. JlJ"''^<=t«s(-/). Entered, F. F. A., Accountant. Forbes V. Marshall. UNION BANK POST BILL. At sixty days after sight of this our first bill of exdiaiige (secornl j and third of same tenor and date not paid), we promise to iwy, on account of the proprietors of the L'niou ]5ank of Calcutta, Ac, j value received. J. Bennie, j . W. P. Grant, J ^'^ IL W. Abpott, Secretary. Directors (/()■ (d) Aijfjs v. Nicholson, 1 H. & N. IG5. (e) Machtc v. Snthcrland, 3 E. & r. 1, held to be binding on the members of the com])any jointly. (/) Lindus v. Mdroxe, 2 11. & N. 2!)3, and 3 ib., 177, held to bind the company and not the directors sign- ing. Compare Price v. Taylor, 5 H. & N. 540, ante, ]>. l'3;3. ((/) Allen V. The Sea, Fire, and L^ Assurance Co., 9 C. B. 574. (/i) Forbes V. Mar,th(dI,U Ex.i The above instrument had luiiufepij ance written acids.'i it, ami wM-> seems, have been treated as a lilN exchange. '■''""■>^ n-illiamson lOK CONTRACTS OF WHICH TIIEY HAVE HAD THE HENEFIT. CHAPTER V. LIAKILITY OF COMPANIES IN RRSPECT OF CONTRACT.^! NOT BINDINa MX TlIl'.M I'.UT OF WIIIOII TIIEY HAVE HAD THE 15ENEFIT. It is obvious tlifit one person may be benefited by a ^''^- ^^- ^'"^i*- "^ oyiilract made by others without being himself in "-ny way liiiind by it. A loan to A. cannot be recovered from B. =i!iiplv because the money lent has come into his hands {a). Su if the directors of a company enter into a contract which is not biiuling on the company, either upon the ground that the contract is ultnt vires or upon any other ground, the company is not liable on the contract simply because it has had the bdiofit thereof (J)). It 1ms bccii already seen that a company is not, under uidiniiiy circumstances, liable on contracts entered into by its inomoturs before its formation, although it may have had the dutit of such contracts {e). Further, a comi)any which has I kncfitud by a contract, not binding on it, is not to be deemed [toliaYe thereby ratified that contract ; nor to have incurred an )li|;i\tioiu]»((S(' ex eoiitraetu, similar to that which wo. .Id have IbfHiiiicurred if the contract had been binding on the company [intk first iustimce ( iwte Jniliamsuu, .') Ch. 309 ; Cork and Yourjlml Rail. Co., 4 Ch. 748 ; Hiirs case, !) Eq. GOJ ; Chambers v. Manchester and Milford Hail. Co., 5 B. & S. .588. Sec, also, per Paike, B., in Homcrsham- v. JFohvrhanqiton IVatencorhs Co., G Ex. 142, ami tlie cases in the last few notes. 23G LIABILITY OF COMPANIKS FOK CONTfi/l Exception to general rule. Bk. II. C hap. 5. grant (c) ; and money received in respect of slinres the contract to take which afterwards fails or is rescinded (ec). Tliere is, however, a very important exception to tlie geiiciiil rule against liability by reason of benefits received. It 1ms been long settled in equity that although an infant is not liable at law for money borrowed although expended in necessaries, nevertheless a person who bond Jide advances money tu an infant is entitled, on the administration of the infant's cstati, to rank as a creditor in respect of so much of the moiuv advanced as has in fact been expended in necessaries (,/'). A similar rule has been applied to money lent to married woimii and expended in properly maintaining them (^7). Tliere is 11 further well settled rule that agents and trustees are eiitilkd to be indemnified by their principals and ccsiuis que trmkiit against all expenses properly incurred in the exercise of their authority or the execution of their trust. From these doctrines there has been developed a rule to the effect that a company is liable to refund money improperly borrowed by its directors but in fact bond fide applied in discharging debts or liabilities of the company which could have been enforced against it, or bond Jide applied for any other legitimate purpose for ivhieliit might have come under liability. These last words are added because with reference to the matter in hand there can, it is conceived, be no difference between paying a person for goods already supplied and paying cash for goods which might have been obtained from him on credit (h). This doctrine has grown out of the celebrated decision iu the German Mining Company's case (i), which will be hereafttr referred to when considering the rights of directors to in- demnity (Bk. III., c. 2, § 3). The following cases show tlie application of the doctrine to other i)ersons, and the limit of its application. (e) Phcenix As,^. Co. Burges' and Stock's case, 2 J. & H. 441. (ee) Ante, pp. 33 and 72, note ((/). (/) Marlow v. Fitficld, 1 P. AV. 558. (g) Jenner v. Morris, 1 Dr. & Sni. 218 ; Deare v. Souttcn, 9 Eq. 151. (/^) This, however, has not yet been actually decided. Some of the cases may have gone too far, l)Ut tlie tendency in this direction has Ijeen checked Ly more recent decisions, See Hx parte WilUavmn, 5 CIi. 30;i, and the decisions subseiiueut tu it noticed in the text. (t) Ex parte Chippendale, 4 De G. M. &G. 119. Again iu the sii FOn CONTRACTS OV WHICH THKY HAVE HAD THE BENEFIT. 287 In III' The, Cork and Yoiifihal Itnilwcnj Compmvi (k), the l^k- H. Clmp. n. lidldci's of some invalid Ijloyd's bonds (/) were held not Cork v. YourIiuI entitled to rank as creditors of the company for the amounts j',j','y)'*^ if the bonds, but were held entitled to be jiaid so nnich of those aiuoinits as they could prove had been properly applied for the legitimate purposes of the company ; and an inquiry on this head was directed. In the Blaclchitrn Biiildiufi Society v. CimUfJe Brooks d- Com- r.lackl.mn , ., ,. . ' . 1111 i i 1 1- 1 1 I'uililiiiK Sopiofy imij {m), a building society was not only held not to be liable ,.. Cmiliiio &. Co. to repay money improperly borrov/ed by its directors but was held entitled to recover from the lenders the sums repaid to them out of the funds of the society. But here again an exception was made in respect of those sums which could be proved to have been applied in discharging the debts and liabilities of the society. The same principle aftbrds an explanation of certain cases in which transferees of debentures, issued ^dtra vires but in the name of a company, have been held entitled to recover from ':he company the value of the consideration received by it for such debentures. Thus, in the grossly fraudulent case of the Athoucnm Life Atlien.oiun As- .Usiimncc Socictij v. Pooleij («), where debentures of a com- 1."' 'ivoiey"'^''^ ' p;mv given in exchange for Westminster improvement bonds, wure decided to be invalid in the hands of a hand Jidc pur- ihaser for value, the purchaser was held entitled to an inquiry uhether the company had received any beneiit from the bonds. Agiun in the similar and subsequent cases of Wood's Claim vruiul's Claim. iiiul Brotrus Claim (o), Westminster bonds were sold to an iiismance company for money debentures and shares. The transaction was held invalid ; and it appearing that the bonds were worth more than the company gave for them, and that the conipuny had had the benefit of the excess, the company ivas debited with such excess in an account directed between the company and the vendor; and he, on the other haml, was ('.) 4C'h. 74S. Hee, aim, Natioiml (w) 9 Apj). Ca. 857, and 22 Cli. hmancnt Benefit Buildiny Soc, 5 D. 61, and 29 ib. !)02, noticed untc, 'h. 309; Ma(i,lalcna Steam Nav. p. 190. '■■..Julms. oyo. (/() 3 De G. & J. 294. (0 As to which .see ante, p. 197. (o) 9 W. II. 3(iG, and 10 ib. GC2. 238 LIABILITY OF COMPANIES. Ex. parte Williamson, Baroness Wen- lock V. River Dec Company. Bk. II. Chap. 5. delated with the money paid to liim by the company, and with the sums realised by him by the sale of the debentures and shares. The mere fact that the company has had the use of the money is not enough to create an obligation to repay it ; so to hold would render nugatory all i)rohibition against borrowiii". Accordingly where the managers of a building society borrowed money for the society, but in excess of their powers, and the money so borrowed was advanced to members on the security of their shares, it was held that the lenders had no claim against the society either as creditors at law or by reason of the appli- cation of the money {p). The following case also shows that the doctrine in question, cannot be extended so as to defeat a company's special act. In Baroness Wenlock v. lliver Dec Comj^auy (q) a companv was created by act of Parliament for the purpose of embanking the river Dee and improving the lands near its mouth, Limited powers of borrowing and of mortgaging were conferred by the act. The directors borrowed money largely in excess of their powers ; but the money to a great extent at least was bond Jicle applied for the legitimate purposes of the company i.e., in doing the work which the company was formed to do, and in paying off pre-existing mortgages, some of which ivero valid and others invalid. The money thus borrowed was held not recoverable as a debt (r) ; but so much of the money as had been applied in paying off existing valid mortgages and in payment of any debts and liabilities properly incurred was held to be recoverable (s). But the money applied iu payins off one of the invalid mortgages was held to be no charge i the lands, although the money raised by such invalid rauitgago had been spent in embanking the river and reclaiming 1 land adjoining it. The ground of this decision (t) was that to j hold the money so applied to be a charge would be to con- travene the terms of the company's special act. (p) Ex 2)arte IFilliainson, 5 Cli. 309. ((/) 10 App. Ca. 354 ; 19 Q. B. D. 155 ; and 36 Cb. D, 674 ; 38 ib. 534. (?•) 10 App. Ca. 354, ante, p. 189. (.s) lb., and 36 Ch. D. G7o, imte. (t) 38 Ch. D. 534, and 3(j ib, (i:4. j Tbe mortgage above referred tn. is j invalid was the mortgage for i'OJi'oj to the Lands Improvemeut Co, OF THE LIAniLi: TTABIIilTY OP DIRECTOnS. 289 CHAPTER VI. OF THE LIADILITY OF INDIVIDUAL MEMBERS OF COMPANIES TO CREDITORS. The liabilities of directors of companies to their members, Rk. ii. Chap. 6. llic liabilities of members to calls, and their liabilities as con- ^— triktoiies in winding-up proceedings will bo discussed here- after in Books III. and IV. In the present chapter it is proposed to examine the sepai'ate liability of members of companies to creditors and others apart from all questions as to their liabilities inter sc, whether before or after a winding- up order. For this purpose it is necessary to distinguish directors from other members ; for although what is true of members is also true of directors as members, it frequently happens tliat directors incur liabilities by their own acts in addition to those to which they are subject simply in their characters as members. SECTION L— OF THE LIABILITIES OF DIRECTORS. 1. For their own acts. It has been alrea-^ly seen that the directors of a company are Torts and jtlie agents of the company, but not of each other, unless jdearly so constituted (a). It has also been seen that directors lute responsible for the frauds which they may themselves com- |niit or authorise (b). On similar principles it is conceived (') ^)i(e, c. 2, § 2. (6) Bk. i. c. 3, § 1 (3) and § 2. 240 LIABILITY OF DinECTORS. Bk. II. Chap. 6. that tliey are personally responsible for any torts whip)) tl:ev -^ may themselves commit or direct others to oommit, nltlidU"!, it may be for the bcnetit of their company (c). It Avas held in a case in which a company infrinf'i'd a patent, that the directors were personally liable to the costs of n suit to restrain the infringement {d). But it would be contrarvto principle to hold directors personally responsible for tlie negligent or other acts of other servants of the company unless the directors are themselves personally implicated in such acts. Coiitiaits. AVith respect to contracts directors may bind tlicmsclw? pevsonall}', although acting for the company, r,//. by puttinj; their names to bills of exchange or prMmi.ssoiy notes si worded as to be their bills or notes and not those of the cm- pany (e), or by entering into covenants (/), or other contract'; BO worded as to bind them individually (//). Such cases timi on the true interpretation of the documents which may be in question. But if a contract is so worded as to bind the company, tlie directors who sign it are not liable upon it ; unless indeed the terms of the contract are such as to bind both them peisounlly and the company, which is sometimes the casS (li). This is in accordance with the ordinary rules applicable to contracts with agents (i). The only exception to this rule is, that a director contracting for a limited company and suppressing the woiJ " limited," is liable personally on the contract (A). Position of agent Formerly it was thought that if an agent entered into a con- aiithorir^'^ *'" ^^'^^^ *^" behalf of a principal, and such contract did not biml ^^fl (c) See Mill v. Eaiokcr, L. R. 9 Ex. 309, and 10 ib. 92. ((/) See Letts v. De Vitre, 5 N. 1?. 1G5, and 3 Cli. 441 : and see an article in 10 Jur. N. S. (part 2), p. 475. (e) Ante, c. 4, § 3. (/) See, as to covenants by agents, Airpleton v. Binhs, 5 East, 148 ; Hancock v. Hodgson, 4 Bing. 269 ; Hall V. BainhrUgp, 1 Man. & Gr. 42; Pickering's claim, L"li. 52."). (g) As in McCoUiii v. Gilpin, C Q. B. D. 516, and 5 ib. 390, wkre three directors proiuisfd to [lav money advanced to tlie company on the security of pLint, &c. belongini; to it, and see infra, p. 243. {h) Lindus v. iV/e/rose, 2 H. & X. 293, and 3 ib. 177 ; Aggs v. Md- son, 1 H. & N. 165 ; Russell y.Ktai, 2 Car. & Kir. 669. (i) See Partn. 177, &c. {k) 25 & 26 Vict, c. 89, >S^ 41 and 42 ; Penrose v. Martijr, E. B. i E. 499. FOR TIIKIR OWN ACTS. 241 tlio Diiiicipal, he not liavinc authorised it, tlie nL'eiit wns him- J'k. II. Clmp, ii. ..llldiincl l»y the contrnct. Aocoruinf' to tins (loiitnnc, n con- — tiact ostensihly entered into by A. through 15. wns treated as a lontrac't by 15., altliou{,'h it was nut the intention of either I'liity to the contract that B. shouhl be in any way bound by It. Tlie propriety of thus making contracts for persons lia ., however, been very properly (piestioned and denied ; and it is iiiiw lieltl tliiit an agent contracting as stich without authority, i-; not boinul hii the contract at all, but that he is liable in (lamni^es for the consequences ensuing from his having nssunieil to act with an authority which in fact ho did not possess. It is also held that he is thus liable although ho noted hoiui fide and in the belief that he had the authority he iissumed il). This vcbult has been arrived at by the fiction of an implied Warranty of warranty of authority; but it really is an excejition to the'*" '"" '^^ general rule that an action will not lie for a misrepresen- tation unless fraudulent (»(). • The rule in question is as applicable to directors as to other Porson.'xl li.ibility khuls of agents («)• But with respect to directors, it niust pxcce.uiiei'r* '" not be forgotten that in most cases the limits of their authority 10"<^'S. can be readily ascertained, and are supposed to be known (o) ; and a person who deals with directors whom he knows, or is •supposed tij know, to be exceeding their autliorit}', cannot ^ complain of them if he finds that their acts are repudiated. See on this .subject the cases 1 letoTed to in the next ten uotea, [ and Jtiih'ds V. Jhikhinson, 13 Q. B. 'U; Lmis V. Nichohon, 18 Q. B. I 'm;Ramkll v. Trimen, 18 C. B. 786 ; ly/eiiv. JFriyht, 7 E. & B. 301, and U ib, 647 ; Himons v. Patchctt, 7 ib. pS; fiis/icoo,/ V. Bain, 3 H. & N. 8,wiiere the plaintiff had not sus- jtiineil diimage. As to the measure li'l damages, see Ex jiartc Panmure, hi Ch. D. 367 ; Meek v. IFendt tt- p,21Q.B.D. 126. ("0 See ante Bk. I. c. 3, § 1, and ■'"'mk's mrs. v. llumphreijs, 18 Q. ' D. 54, See, also, Lord Black- guru's observations in Brownlie v. L.C. Campbell, 5 App. Ca. p. 952, where the difficulty of drawing the line between warrant}', fraud, and es- toppel is pointed out. See, also. Pollock on Contracts, Appendix, note L. ; Holmes on the Com. Law, 130. ((i) Godwin v. Francis, L. 11. 5 C. P. 295 ; Ferguson v. Wilson, 2 Ch. 77. (o) See as to this, ante, p. 165. WiUon V. Miers, 10 C. B. N. S. 348, was an action against directors for exceeding their authority, but the Court was of opinion that there was no excels, and decided against the pluiutilt' on that ground. B 212 MAniMTY OF DIIlKCTOIia Liability for nets tillra lilt. II. C'lmp. (1. ifo runs tlio risk of such ropudiiition. In tlio nbscnop, tlicro. Mcrl. 1. , fore, of fraud on tlicii' pfti't, such ii person will be mniblc ti obtain nny redress against them. Aforeovcr, liny arc ii„t liable for honest mihtakcs as to the legal extent of tlair authority (p). Thus, where a person advanced nion(?y to a oonipnny on tlie security of an invalid filoyd's bond of the coniimny, the directors who issued it wei'e held not to be personally liaUo to repay the money advanced (7). So where a person bniiL'Lt new preference stock of a railway company which botii lie ninl the directors bond fide believed they had power to issue, but which in truth they liad not, it was held that ho had no remedy against them, for there was nothing more timii a common mistake of law (/'). But directors, like other agents, impliedly warrant all fuels necessary to confer the authority which they profess to exor- cise. And if the company is governed by a private net of Pai'liament the contents and effect of that act are loganled as matters of fact («). Therefore directors who liad (icctpteJ bills on behalf of a company, which had no power under its private acts of Parliament to accept bills, were held liable to the lujlders who had no notice in fact that the company was : not empowered to accept bills (s). So where a company liail j power to borrow, but the power liad been already cxliaiisttil, and the directors nevertheless raised more money, they were j held personally liable to repay it {t). So where the directors ofa j benefit building society had power to borrow if a rule enabling! them to do so had been passed, and they borrowed money fori the society in the absence of any rule enabling them so to k\ it was held that they were personally liable to repay it (//). Sol where directors of a company authorised the manager to ovpr-j draw the company's account, they were held liable lor tliej (j)) Deatlie v. Lord Ehurij, L. K. 7 Ch. 777, and 7 H. L. 102. Com- pare tlie cases in the next four notes. {q) liashiMl V. FurJ, 2 Eq. 750. See on this case, 13 Q. B. D. 363. ()•) Eitrjlfs>fieUl V. Marquis of Lou- doHihrry, 4 Ch. U. G93. (s) JFest London Commercial Bank V. Kitson, 12 (I 1). U. lo"/, aiiJ 1 Q. B. D. 360. (0 JVeels V. Prfffft, L. R. ? < P. 427 ; CJuq)kov.]lriiimndB " imj Soc, 6 Q. B. D. (i'M. (u) Richardson v. U'illiam« E. 6 Q. B. 276, exidaiiRil ^M lish, L. J., in 7 Ch. 801. "vcr-dnift, for without tlic c poniT to do so |iiiHer to issiK ilirietors, ii/'tcr tMre stock, they ii'iiiutliorised st which tlie stock Further, wliei iiiid he iias in t Imliuit oil the havhiffcontriictei airurdinrrly, j'l I'aiiy not yet forii M rel'wml from "le eontrnet by tj] tract is so woi'ded •\g"iii, if direci consistent witJi t]i( "ill lie bound im '1 actually ilkg,^l "ot Wild the coiiij »^ "gaiiLst the di ''''•^'■toi'^ofaconip "'"1 "lie ])arty ret indenniify tlmn, tl '«« who entered ii 'Ik; whole Iruusactic, '« filter into on the ;™^'i'^ illegal none; I •'"■'' «-liere the diret WC'W,/v. Col. Ba Is iQn «. Gilpin IJ^ 390, mvmod c Q. 1 I'OK TIlKIIl OWN ACTH. 248 ,ivoi'-ilnit't, lor iiltlion},'h the I'tunpany liiul no power to borrow '"<• H. cimp. 0. without tilt' niiiHt'iit of a iiiectiug of shiiroholders, tlu'y liftil iMWirto do so with such coiisriit (,»•). So where a company hud iiDwer to issuo dehonturo stock to n liniitid extent, and the iliii'ctors, lifter the power was exlinustcd, issncd more debcn- tiiiu stuck, thry were hehl personally liable to the holders of the iiimutiiiiriscd stock. The damages were hekl to he the value dikli till' stoi'k would have had if it had bt'cn authorised (//). I'urtlicr. where a person purports to contract as an agent, CdntmctH with ' ' _ . " lifoinotcM of luul he has in truth no principal, so that the contract, unless comiiwiicH. liiiulinf! on the party to it, is wholly void, he is treated as Imviiig contracted on his own behalf, and is personally liable niciii'diiigly. Thus, if a person contracts on behalf of a com- pany not yet formed, he is liable on that contract ; and he is not relieved from such liability by the subsequent adoption of the contract by the company when formed (c) ; unless the con- tract is so worded as to exclude personal liability. Again, if directors contract as principals, which is quite Express personal consistent with their acting on behalf of the company (a), they will be bound personally by their contract provided it is not actuiilly illegal. The fact that the contract is one which would not bind the company is not j>f;' sc sufficient to render it void lis against the directors personally. Therefoi'e, where the directors of a company disagreed and divided into two parties, luiil one party retired, and the other party covenanted to indemnify them, this covenant was held binding on the direc- tors who entered into it, irrespectively of the question how far tlie whole transaction was one which the directors had power to enter into on the part of the company (/>). But if the con- tract is illegal no action can be maintained upon it ; and there- fore where the directors of a railway company agreed that it liability. W tlmij V. Cul. Bank of Aits- |tr(il(i«w,L. R. 3P. C. 24. (l/) t'irbank's cxors. v. Humphrrys, llSQ.B.D.f,4. (;) Kdner v. naxkr, L. R. 2 C. P. [114; .S'co« V. Lord Eburtj, ib. 255. (") McCvllin V. Gilpin, 5 Q. B. V>- 390, aiRrmcd G Q. B. P. 516, tktm V. Marsh, ''.. E. G Q. B, 3G1, and the cases on promissory notes, ante, p. 232 et seq. See, also, Kay v. Johnson, 2 Hem. & M. 118, in which a decree for the specific performance of an agreement for a lease was made against directors personally. (b) HaddoH v. Ayers, 1 E. & E. 118 ; Barker v. Allan, 5 H. & N. 61. 11 2 211 MAHii^rry oi- siiARinioLDi'.iis. r.k. II. Clmp. 6. should pay the cxponsos which might be inetirrcd by nnotlKr Sect. 2. * , ^ ' oompiiny HI ntteiuptiu!:; to obtiim iin act ol Parliaiupiit fortln- fonnutioii of a line which, wlioti made, was to be liaiuled ovn to the iirst com2>aiiy, it was hehl tliat this was an agieoment to the etlc(!t that the Ih'st company shouhl do tliat wliioh was altogetlicr illegal, and that an action against the directors I'lir a breach of the agroemcnt could not be sustained (<•). Directors not tlio at;oiiUs i)f tach utiicr. 2. For the acts of each other. Although the directors if a company are the agents of tli(- company, and although, as a nu'mber of the company, tacli of the directors is liable for the acts of its agents on the smiie ground as other members, still, unless a director has (Imie something to make his co-directors his agents in some otlier sense than this, he is no more liable for their acts thim anv other shareholder. In this respect directors are like pro- ^ moters, each being answerable for his own acts and for the | acts of the others so far as he has made them his agents, bii! no further ((/). It must however be borne in mind that tlit liabilit}' here referred to is liability to persons dealing; ivitli j directors as representing their company. The dutie? niiil liabilities of directors to shareholders will be referred to lure- after in Book III. SECTION II.— OF THE LIARILITIES OF SHAREHOLDERS. Passing now to the consideration of the personal liabilitie^ of shareholders of companies in respect of transactions wliiel impose liabilities on the companies of which they are niciiibers it is necessary to distinguish one company from another, iUH especially unincorporated from incorporated companies. (c) Macffregor v. Dover ami Deal case, 4 De G. M. & (J. 411 ; "fl'^" Hail. Co., 18 Q. B. 618. case, 8 De G. M. & G. 60' ((/) See Ilrovn v. i>«, 10 M. & also, JFeir v. llaniett, 3 Ex. D.l ■\V. ■2iy2 ; H,:raml v. Leaf, 5 C. B. and 238; Canjill v. i'wftr, 10 CJ l-")7 ; l>i;tiiiiili V. Jtoliirl.-i, :i Binj,'. D. 502. K, (.'. yi;;5 ; J.onl LondcsboroiKjh'i J0( ]Jk. 11. Cbai). a. Sect. 2. KXTKNT Ol' MAHIMTY. 245 1. Ah to the extent (if lidhilil!/. (,/,) 11/ liuhililij at Common Law and of attemiiln to realrict it, l!v tliu lomiiioii law of this country every member of an iiiiiiicoriioratod partnership, wli(;th(!r it be an ordinary firm or ;i joint-stock company with tninsf(!rable share's, is personally liiiUi! for all the debts and engagements of the partnership iiintiiicted whilst he is a member of it [■•]. As maybe sup- AUcmpts to poseil, many attempts have been made froni time to time '"'' '"^'"■y- to ivstiict the application of this rule and to form com- pmiies on such terms as to prevent their members from being niiiied in the event of the companies suffering serious loss. These various attempts have ceased to be of much practical iiiipoitaiicc owing to the facilities of forming incorporated lompaiiii's by means of registration ; but they have still great i liistoiical interest and di'serve notice on that account : more- I over, tiiere are still insurance companies which issue policies [ on the terms that they are to be paid solely out of the funds I of the companies. The attempts referred to may be ranged under two heads, [accuiding as there has or has not been some special agreement I with the crcilitors. So intlexiblo is the doctrine of unlimited liability, and ' so Witliont s] cc'al liiiipuitiuit is it that no doubts shall be cast upon it, that judges '^',.'"iitor.^."' bvc frequently denounced in the strongest terms the conduct [those who have endeavoured to inveigle the public into |takhig sliai'os in companies by asserting tlu.t "no one shall be )le beyond the amount of his subscription." Nothing can lilt' more delusive or worthless than such statements as applied llo unincorporated bodies, o)" to bodies not governed by special p of Parliament ; for although the s'.bscribers themselves my stipulate with each other for such a restricted liability, ling is more clear than that, as to le rest of the world, 1 shiireholdcr is liable for the whole amount of the debts of ;) Partii., bk. ii. c. 2, ami sec, as V. & 13. 157 ; R. v. Ihdil, 9 East, 'Wiipaiiies, Kcuslcij v. Cudd, 2 Car. 51G ; liohin-^on'd E.mutor's casi',G De p.W!', note ; dxrkn v. iJrury, 1 0. M. & 0. 572, 246 EXTENT OP SIIAnEHOLPERS LIABII.TTY. By special con- tract with credi- tors. Bk. 11. Chap. 6. the company (/). Nor will notice that a stipulation of tliis kind has been entered into between the shareholders prevent a creditor from holding each of them liable to the full extent if his demand {(/). Notwithstanding, however, this general rule, if a person chooses to deal with a company upon the terms that its funds, and they only, shall be available to make good his demands, he cannot afterwards depart from those terms and liold the members individually liable as if no such restriction had bciii agreed to (li). It is, however, to be borne in mind, that members of unin- corporated companies, like other partners who contend for restricted liability, have the onus inohamU on themselves, and if, owing to anj'' circumstance, they fail in establishing their contention, the general rule of unlimited liability applies tu them as a matter of course (?"). The ordinary mode of restricting liability, is to contract that the funds of the company shall alone be liable to the demands against ^it. Upon contracts in this form, it is to be observed that — 1. A contract by a person to pay out of his own property without limitation, is in fact an absolute contract to pay ; fur c.rpress'u) corum quce tacitc insunt nihil oiieratnr. 2. Upon the same principle, a contract by a corporation to pay out of its funds generally is, as regards the corporation, neither more nor less than a contract to pay absolutely; fur a corporation as such has nothing except its funds to pay out of (/i). 3. An express contract to pay out of certain specifieJ Limiting liability to funds of com- pany. (/) See n. y. Bodd, 9 East, 516, and the cases in the la.-•) ; but that if there are no such funds, then tlie event on which alone payment has to be made not hnvinir arisen, no one is liable to pay (s). The latter proposition, however, supposes that the contract is not so framed as (notwithstanding what is said about tln' funds of the company) to amount to an undertaking to pav at all events. The importance of attending to this point appears from Hancock v. Hothjson (t). In that case, the projectors of a mining company purchased a copper and tin mine, and covenanted to pay the purchase money by quarterly instal- ments out of the funds of the company ; but it was provideil that in case there should not have been received by the bankers of the company or by the directors for the time bciiif. the deposits or instalments due from the several shareholders, so as to enable the directors to pay the i^urchase money at tlic times therein before mentioned, then and in such case the said directors shall be allowed a further time to pay such balaiuo, until six months after the time or times when the said quar- terly instalments became due. Upon this covenant and proviso it was held, that the covenantors were personally liablo to pay the whole purchase moneys, although the company had no funds ; for that whatever might have been the case without the proviso, that clearly showed that after the expiration of the further period therein mentioned, the payment was to be made by the covenantors at all events, whether the company liaJ funds or not. Having made the above general observations, it is necessary to examine with greater particularity the effect of contracts bv companies to pay out of particular funds, on 1. The rights of creditors against the funds themselves; (r) See Amlrcws v. Ellison, (5 B, Moore, 19!) ; Gurncij v, Uaidins, 2 M. & W. 87 ; Jhticsnn v. Wrench, .3 Ex. 359 ; Iliid v. Allmi, 4 Ex. 32() ; Hdllctt v. Dowdall, 18 Q. B. 2, the judgment (ju demurrer. (.s) See, in addition to the above casea, Durham's case, 4 K. & J. 517 ; Halket v. The Merchant Traders' Loan and Insurance Amciatm, 13 Q. B, 9G0 ; Hasscll v. Difio, 4 Es, 525 ; The Worcester Com Ej:ckif Co., 3 m G, M. & G. 180; A'i»:/v. The Accumulative Assumnce (''., 3 C, B. N. S. 151 ; and compare C't' case, 1 Sni. N. S. 51, (0 4 Binj,'. 2()9. ATTEMPTS TO I,IM1T LIABILITY. 249 and 2. Their rights against the members imUvidually where ^^- ^f; .^ \"i'- ''• those funds have been exhausted. — 1 With respect to the rights of creditors against the funds, R'slii against it raav now be considered as settled, that a contract by a com- iianv to pay a person out of its funds does not give the creditor ,uiv specific charge or lien on those funds, nor any preference over other creditors (it) ; but it nevertheless entitles him, oven before the time for payment arrives, to prevent the funds from luin" misapplied (r). Where therefore an insurance company had issued policies and made them payable out of its funds, a pulicy lioldcr whose policy had not become payable was held entitled to an injunction to restrain the company from anial- "atiiif with and transferriig its funds to another company, siuh aumlgiimation and transfer not being warranted by the deed of settlement of the first company (y). It has, however, been held {:) that a contract to pay a policy out of particular i'lmds does not amount to a contract to carry on business, nor to a contract not to hand over the funds to other persons (a) ; and that a policy holder whose policy is not due cannot sup- port an action for damages which he fears he will sustain, but ich possibly he will not. The last ground is perhaps the most satisfactory, and has the advantage of rendering the de- dsion in equity consistent with that at law. It is, however, by no means uncommon for an unlimited ^'""■f *''" '=""• ' '' paiiy lias power i insurance company to limit its liability to policy holders and to transfer its / annuitants to its funds, and to have in its deed of settlement funds. I Alkrt Life Ass. Co., 9 E(i. 706 ; t.lI/iii'sf/ifi/H, 5 Ch. 424, and the |C.W5 in tlie next note. I See Kearns v. Leaf, 1 Hem. & IM, (iSl ; i7((/c Fire Tnsiu: Co., liK457,amllDeG. J. & Sm. 634; Mifciini/i Life LnsHraiice Societij, |J4s.80&G33, iuiil 3 De C4. & J. m); Lnr V. London Indi,-, 13 Eq. 547. («) Kee, also, Rhodes v. Foricood, 1 App. Ca. 256, where an a^cnt of a colliery cuutomlecl in vain that his employer was bound to carry it on. So in Jle liaihcaij and Electric Ap- pliances Co., 38 Ch. D. 5!)7, there was no implie'l covenant to cany on business in order to work a ])atent. Compare Telegraph Despatch Co. v. KcLean, 8 Ch. 658, and Mclntyrc v. IJdcher, 14 C. B. N. S. 654, noticed ante, p. 247, note (o). ,;i fit . 250 EXTKNT OF SHAnEIIOLDEIlS LIABILITr, Bk. II. Chap. c. or articles of association as originally framed, or as alteiv Sect. 2, (I 111 Extent of mem- bers' liability. {a) Where tho company is incorporated. accordance with a power therein contained, jiowcr to transfer its funds and its business to another company. "Where tliis occurs, a transfer of the funds cannot be prevented ; and upun a proper transfer being made and in the case of life iiisuniini; companies con-'irmed by the Court, the policy liolders ami annuitants cease to have any claims against tlie transl'eniii" company (/>). 2. With respect to the extent cf the liability of tlie members of a company upon contracts in which it is specially stipulated that the fi'^-ls of the company alone shall be answerablo, nnl that T'o • I ••' shall be liable beyond the amount of liis share, the lim: - i ,. \.\ contract is the limit of liability : — Whero the company is an incorporated company, there never was any diffi- nlty r^ .'"ing efi'ect even at law to all the terms of the contract ; and iu the case of companies registered under the act 7 & 8 Vict. c. 110, it was held that the iiienibcrs were not liable to have execution issued against them upon jiid;;- ments obtained against the company on a contract of tlio description in question ; but that the property of tho conipniiv was alone liable to make good the demands of the judgment creditor ; and this was held at law even in cases where tlie subscribed capital had been exhausted but the wliole capital had not been paid up {c). The same principle was acted on in equity, except tliiita Court of equity compelled the shareholders to pay up rateabh sn much of the capital as had not already been subscribitl i ''■ This can now be done by a properly constituted action. In all these cases, however, it must be borne in mind that the liabilities which are limited to the funds of the company, are those only which are expressly so limited by the contracts (ft) See infra, § 3, p. 258, &c., ami as to lil'c assurance companies, see Tlie Lite As( III '.'mi«'s ,■,(«.,](_ ["*■//'.//-.« V. ;;,„,/„/;, '■' ^^ in the earlier LIABIMTY MMITED BY STATUTE. 251 with the creditors ; tlie liabilities to other persons are un- ^^^- If Chap. 6. beet. 2. limited ('■). Compunies governed by the Companies act, 1862, ma}', Companies go- ,. . , ,. •■ .1 • !• 1 .1. -i .1 .V vcriied liv tho althouj^h uiihmitod, hmit their habihty by special contract (J), act uf 1802. aiul wliRi'e tliey do so the principles above adverted to will be applicable. But as under the Companies act, 18G2, judgments rainst a company cannot be enforced against its members, (iiu'stions as to their individual liability can scarcely arise ixct'pt when a company is being wound up. As ii'"iu'ils unincorporated companies, it was extremely dif- (*) Wlicre tlm ^ ■ •111/' ii • !• 1 T T coiiipiny is not jiiiilt, if not impossible, betore the passing oi the Judicature incorporated. Alts, to enforce by action at law a contract limiting their liiil)ility to their funds (.) Of Hmitedliahilidj hij Statute. Passing now to the subject of limited liability by statute, L"'"'"'' Habih y " "^ ... I'y statute. the iiist point which has to be borne in mind is that the iKomont a society of any kind is incorporated, its members Msu by common law to be in anj' way liable for the debts and eiigfi;;ements of the body corporate. Moreover, although by common law it has always been lawful for the Crown to create , ciqioiations, the Crown has no power by common law to create a (orporation and at the same time to render its members indi- !')Setj iVa Albert Life Ass. Co.,d E'l, TOii; /Vo/(wtoH'(i Life Ass. Co., h&i. Wis, anil ;JCh. 1(J7 ; Lcthhriihje |v..l((((„i.<, KJEii. 547. ill &e § 38, d. 6, Accidental \i)'.nth Im. Co., •; Ch. I). 568. (;/) See IMUtt v. Ihwdull, 18 Q. |B. 2, ami the oliscrvations of :Mc'llish, |L J, in Urain's case, 1 Cli. D. 322 ; Ukkmr V, !>adllc, 6 E. Jloore, 202, In*. lUlhtl V. Ihu'dall was noticed I'll length in the eailier editions of tlii.s treatise, but it lias not been thought necessary to reproduce tlie former observations on it.- (/() See Law v. The London In' disputable lAfe Policy Co., 1 K. & J. 223 ; Talbot's case, 5 I)e G. & Sni. 386 ; Durham's case, 4 K. & J. 517 ; liobson v. McCreiyht, 25 Beav. 272 ; Evans v. Covcntrij, 8 De G. il. & G. 835. See, as to the etiect of a transfer by the company of its Inisi- nes.s, Hort's case, I Ch. D. 307, 252 Bk. II. CLap. 6. Sect. 2. Chartered com- panics. Companies go- verned l>.v 8 & 9 Vict. c. 1 (3. Companies cm- powcrcd to siio and be sued. IS.inking com- panies governed by 7 (ieo. 4, 0. 46. Companies act, 1862. KXTI'.NT OF SIIAltEIIOI,r)Kns' MAniMTV. vidmilly liable fur its debts (/), the whole of that brandi of tiie law which relates to the liability, as (Ustinguished finin the non-liability, of thg members of incoriiorated comnnniis for the debts and engagements of such companies, is of niodein growth and is based ujjon statntory enactments. These enact- ments will bo examined hereafter in connection with tla subjects of execution and winding up, but it may be useful tj state generally in the present place that — 1. The liability of the members of a company governed Iv the Letters Patent act depends on the terms of its cliaiter .i letters patent, the Crown being empowered by the net in quo- tion to limit their liability or not. (See 7 Will. 4 and 1 Viit, c. 73, §§ 4 it 29.) 2. The liability of the members of a company govenied bv the Companies clauses consolidation act is limited to tlie extent of their unpaid-up shares in the capital of the coniiuiiiv (8 Sc 9 Vict. c. 16, § 3G). 3. The liability of the members of a company empowered k a special act of Parliament to sue and be sued by a piblk officer depends on the terms of such act, but will almost inva- riably be found to be inilimited (A;). 4. The liability of the members of a banking conipany governed by 7 Geo. 4, c. 46, is unlimited. (See 7 Geo, J, 0. 46, §§ 11, 12, 18.) 5. Subject to the exceptions presently to be noticed, the j extent of the liability of the members of a company formcJ and registered under the Companies act, 1862, depends upon j whether the company is registered with limited liability or nut. j If the company is registered with limited liability, its menibus are not liable beyond the amount for which they have under- taken to be responsible ; but if the company is not so regis- 1 tered, its members are liable to tlie full amount of the com- (t) This power was conibrred ujion llie Crown by G Geo. 4, c. 91, § 2, wliich was ibllowed l>y 4 & .5 AVill. 4, c. 94, and was with it rejietiled and replaced by 7 AVill. 4 & 1 Vict. c. 73. (k) See Aldridgc v. Cato, L. R. 4 P. C. 313, as to the liability of a menilier of a company onipwirplj to sue and be sued, Ijiit not incr-: porated. The Colonial onliiiaiirtinj that case was held not to Imvi' in-f corporated the coinpany, m\ iliej case may be usefully refcried to mj the construction of such docuiiientif MABIMTV LIMITED BY STATUTE. 268 niiiv's (k'bts niul cngagenionts, wlmtcver tliiit may be (/). The I'k. II. Chap. o. ' ' ' . 1 ' 1 • • 1 • Sect. 2. lialiililv, liiiwovcr, of oafli nieiuber is inoivly a Inibiht}' to ciiiitribiite with others ; and such liubihty can only be en- Imwil by winding up the comi)any. No execution can issue iv.'iiinst a member upon a juilgnient obtained against the imiipany. Exceptional liul)ilitie8. The exceptions above referred to are as follows : — il.) Even if the company is registered with limited liability, tlio liability of the directors will be unlimited if the memo- I'lindmn of association so provides {in). (i) If a company carries on business for six months with less than seven members, all the members cognisant of the fact are severally liable for the debts contracted by the company (luring that time, and may be sued accordingly {n). (3.) The act contains stringent provisions to compel limited companies and theii" officers to use the word ** limited " as part of the name of the company in matters relating to its busi- ness (o); and persons signing or authorising the signature on Uhalf of such a company of any bill of exchange, promissory note, eheque, or order for money or goods, in which the word limited is not used as directed, are themselves liable for the ainouiit, unless the same is duly paid by the company {}))■. ll.) The liability of limited banking companies issuing j notes is imlimited in respect of such notes (. 6. Sect. 2. F.fTci'lof contimi- iiig on rugiHtcr. StatiitcH muNt be luuked to. 2. Termination of shareholders' lial>ility in re- spect of past auts. TKUMINATION Ol' SIIAlti:H()I,I-)KUS MAIilMTY. ftiid its nf,'('ntH to bind him. If he is n Hlmreholdcr in a cnm- puny wliifh lias no rcj^istcr of it:, nitMnbors iiffcssjljlo to the l)nl)lic, lie is in the position of a dornmnt pnrtiur, mid ciinsi. fjiicntly he oiuinot be made liable for what uecuis iiltir his if. tiremcnt ; and no notice of retircinent is necessary except tn those who knew him to be a shareholder (J). But ii peismi who is a shareholder in a company which has a ro^iistor of its members accessible to the public, is })riiitd /arte in a ditiuiciu position; and reasoning from analogy, a retiring slmrelK^lilir ought in such a case to take care to have his iiaiiiL' ivumvhI from the register, for so long as it is there he ]uAh iiimsilt' out as a slmrchcdder {<■). lUit here, as in otlii r cases, the liability of sharuholders turns on the statutes applicable to the companies in which they are sharelu)lders, niid reliance must not be placed upon the general principles api»lirable to partnerships. The Letters Patent act expressly enacts that a ptrson am- ing to be a shareholder in a company to which that net applies, shall for all pur))oses of liability be considered as a c(iutimiiii;( shareholder until the fact that he is not so has been regis- teied (/). But as regards companies governed by other statutes, it will be found that their liability for future dehts depends not so much on what appears from the company's register, as on the fact of membership, of which the register i» only j^rimd facie evidence {(/). Again, with respect to the liability of a late sliaivholder in a company for those debts and engagements of the company to which he was liable when he was a shareholder, it is necessary to consult the statute or charter by which the company in question is governed. "Without referring to particular enact- ments at length, it may be stated generally that the ord (d) See, Ace. Noriheij v. Johnson, 19 L. T., 104 Q. 15. 1852, the case of a shareholder in a co.st-ljook inine. (f) This is cousistunt witli the cases which show that a iiersoii whose name is put on a register of ishareholdcrs withtmt his authority ilous not iicilil himsfll' dut a.s a .shaic- liolder. See LysUr's case, 4 Eq. 233 ; lurch's case, 2 De G. & J. 10; ///I- house's case, ib. G!) ; I'oms \. IMtr, 4 C. 13. N. S. 4(J9, allirming S.t'.,3 ih. G45. See, also, rartn,, \\ 40i/4 (/) 7 Will. 4 & 1 Vict c. 73, 1 21. (ij) See the section in the mh cluipter on E.xccutinu against I'liii- panics and their SharehoiJers. TEliMINATIoN ol' SHAItKlIOI.DKUS LIAHIMTY. 257 rniK'i [lies (if jxirtnoi'shi)) anri)oviitlon Inw Imvr not l>eeii '"'• "• ^^'''H'- "^ iiiteiiallv (l(']mrtc(l from in the case of companies, except as Sect. 2. i-ai'Ms time (/(). Till' Joint-stock bankinj^ act, 7 Geo. 4, c. 40, § 13, contains Summary of li nctM, Visions conunuinr; mo iianiiity of slmreholders in respect oi [inst debts until tlie lapse of three years after thoy Imd ceased tiilio slmrelioldors (/). Tho Letti-iH Patent act, 7 Wni. 4 Si 1 Vict. c. 73, ^' 24, con- liiiiKs the liabilities of late sliandiolders, but it does not con- tiiiii nnv provision limiting the duration of siudi liabilities. The Companies clauses constdidation act contains no pro- \i>ioii continuing the liability of a shareholder, after he has reused to be such (8 A: 9 Vict. c. IG, § 30). The liability of shareholders in a company formed under the Compunies act, ISiVl, is continued, as to debts contracted be- fore their retirement, for one year after they have ceased to hold shares (25 .V 20 Vict. c. 89, § 38). Tlie liability of a retired shareholder to contribute to the Liability to con- tsof a company must not be confounded with his liability confo'-led with creditors. For notwithstanding the continuance of his ''"V ' '" " crec' .jr». bihty to creditors, he may be entitled to a complete in- I Jemnity from the other shareholders, and may not therefore [be n contributory with them, and this is a common case. On the other hand, a shareholder may be freed from liability to (inlitors, but not be freed from liability to the other share- Iboldeis, to contribute with them to the payment of debts for hhich they only are directly liable. This, although not so Icummon a case as the other, is still a possible case, and aifords la striking illustration of the difference (constantly lost sight jof by non-lawyers) between direct and indirect liability to the pbtsof a company (A:). This subject will be examined here- Wter. Ci) See, as to paitnera, Part., bk. >f2,§3,pp. 223f(s65. (i) The repealed acts, 7 & 8 Vict. ^11^66; c. 113, § 10; and 19 2^ Vict. c. 47, § 62, as to un- ited companies, contained similar wisions. But the 7 Geo. 4, c. 40, '^'^SVict. c, 110, and c. 113, ")■ render a late sliareholder liable I..C. for debts contracted whilst he was a shareliolder. The act of 1856 rendered him liable for debts con- tracted before he became a share- holder, and whilst he continued to be so. (/f) See Ex imvte Oouthwaite, 3 Mac. & G. 187. S fef i 268 COMMENCEMENT OF SHAREHOLDEKS LIABILITY lik. II. Chap. 6. Sect. 2. Commencement of liability. 3. On the commencement and termination of liahiUty in thr case of amalrjamathui comimnics. The position of a company which amalgamates with anotlici by agreement is analogous to that of a man who outers into partnership with another. As the two partners c'.j not beconu' jointly liable to their respective separate creditors, unci neitlier partner becomes Hable to the debts of his co-partnor, so the two companies do not become jointly liable for each otliei's engagements, nor do the shareholders in the one corapauv become debtors to the creditors of the other company. l{ the agreement to amalgamate is valid, it will bind the two com- panies as between themselves ; but such an agreement will do: 2)er se give the creditors of either any locus standi against the other : and if the agreement to amalgamate is ultra rim and invalid as between the two companies, securities given by one company in respect of the debts of the other will be iiivaliJ also (I). , , Where companies are amalgamated bj' statute, special provi- sion is always made with respect to these matters. The princijile of Edwards v. The Grand Junction Ikihiiii Co. (m) applies to the case of two companies amalganating. The amalgamating company will not be allowed to exercise powers acquired by means of agreements with its component companies or their projectors, except upon the terms of com- plying with those agreements, provided they are such as the j amalgamated company would itself have been bound by if it j had entered into them (n). (l) See Partn. pp. 239 et seq., the Era Ass. Co., 2 J. & H. 400, and the Saxon Assurance Society, 2 J. & H. 408, and Ernest v. Nicholls, 6 H. L. C. 401. As to the effect of amalga- mation in discharging sureties, see The Eastern Union Bail, Co. v. Cochrane, 9 Ex. 197, and Tlie London, Brighton, and South Coad Hail. Co. v. Goodwin, 3 Ex. 320. In these cases the surety was not discharged ; but the statute amalgamating the two companies contained an eiproi j provision on the subject, (;;t) Ante, p. 150. (n) See The Earl of Imlm v.j (heat Northern Huil. Co., 10 Hij 664 ; Preston v. Linrpoulml H'l'- Chester Rail. Co., I Sim. X. S. 5^«. j on demurrer ; Stanleij v. Chola Birkenhead Hail. Co., 9 Sim. Ml and 3 M. & Cr. 773. See, Mi Port of London Assvr. Co.'s «'«, J De G. M. & 0. 4C5, reversed in r .,;'»• 101, m which r"'^^""emberoftlu IX CASES OF AMALGAMATING COMPANIES. 259 Piutuers cannot get rid of their liabilities to creditors by Kk. II. Chap. 6. ,..,,,. -Ill Sect. 2. iitiiinf from the firm (o) ; and it is wholly immaterial whether ;ill retire, so as to put an end to the firm altogether, or whether liability. ■.ome only retire ; the princiijle in each case being that a ('.editor is not affected by agreements come to between his ilebtors. Precisely tlie same principle renders it impossible fill t!ie members of a conipanj' to get rid of their liabilities as between themselves and tlieir creditors, by simply agreeing to dissolve, or by transferring their rights and (so far as they can) tlitir liabilities to some other company. Although, therefore, Amalgamating a company nay have transferred all its assets and liabilities to iiiiotber company, the transferring company will still remain liable to those of its creditors who have not expressly or im- Jiedk released it from their claims (p). "What amounts to an implied release is often very difficult to determine ; nor are all I the cases on the subject easy to reconcile (q). In the first place, holders of policies of insurance must not Position of jjolicy- holders, be confuiuuled with ordinary creditors. The holder of a sub- Isistiiif,' poUcy is not a creditor at all ; and in order that he may [become a creditor of the company which issued the policy, he liiiust keep up his policy with the companj', and the event in- Isured against must happen whilst the policy is so kept up. ^Consequently it was held in many cases that if an insurance office had transferred its business to another company, a derof a policy who had notice of the transfer and who paid Ustuture premium to the new office, ought to be treated as paving agreed to accept the new office in lieu of tue old ; and uiless this inference could be rebutted he was held to have ischarged the old office. The following cases illustrate •LC, 401, suh noin. Ernest v. ffUh on tlie gromul that the palgamation was iilt(i>;ether iu- lliil, !('', Part. 223 et acq. ij'/ !>ee, iu addition to the cases Y '*1'"S Hmlliij,' V. JVehster, 1 • ^ ^m, 101, in whicli the cre- l'' *•»■' a member of the trans- F'c'oiiii,my,anathe deitndant was a member of both couipanies. ((/) As pftinteil out by Lord Hatherley,jin Re The Family Endow- ment Soc, 5 Ch. 118, see p. 133, clear proof is required to show that a person having a claim agninst one company on a written contract has abandoned it for a claim against another company which it may be dirticult to prove. .'4 2 2G0 Bk. II. Chap. 6. Sect. 2. TEnaiiNATioN or shareholders liability A. Original company held to be discharged. (a) The original having had, by its deed of settlement, express power to transfer its business, and the policies having been issued subject to this power. Hort's case, 1 Ch. D. 307. Grain's case, ib. Harnum's case, ib. 32G. Cocker's case, 3 Ch. D. I. Dowse's case, ib. 384. A case of an annuity. (6) The policy-holder having accepted the new office after notict of the transfer. National Provincial Life Ass. Soc, 9 Etj. 30G, International, dr., Life Ass. Soc, 9 Eq. 316. Merchants and Tradesmen's Ass. Soc, 9 Eq. 691 Times JAfe Ass. Soc, 5 Ch. 381. Anchor Ass. Co., 5 Ch. 632. Spencer's case, 6 Ch. 362. Fleming's case, 6 Ch. 393. Evens' claim, 16 Eq. 354. Miller's case, 3 Ch. D. 391. 35 & 3 . Vict, c. 41, § 7. B. Original company held not to be discharged. (a) The policy-holder having had no sufficient notice of lie transfer. Manchester and London Life Ass., 9 Eq. 643, anJJ 5 Ch. 640. Conquest's case, 1 Ch. U. 334. (6) The policy-holder having refused to accept the new conipaiir.J Griffith's case, 6 Ch. 374. In order, however, to remove the difficulty of determining inj these cases whether a policy-hokler has or has not released tliej old office, it has heen enacted by 35 & 36 Yict. c. 41, >^ ", follows : — § 7. Where a company, either before or after the passing of tliis act, !i transferred its business to or been amalgamated witli auotlier compel no policy-holder in the first-mentioned company, who sliall payi^'"( other company the jiremiums accruing due in respect of hi^ pci:i.y,-"' by reason of any such payment made after the passing of this aii. "rl reason of any other act done after the passing of tliis act, '« dieiiiw j have abandoned any claim which he would have had against tlie lit mentioned company on due payment of premiums to such company. ^ J have accepted in lieu thereof the liability of the other conipan.''. ""'* such abandonment and acceptance have been signified by some »" signed by him or by his agent lawfully authorised. W See lie Sa.wii Li, I'^'^'r, The Anchor's a M'S, and on aj)poal l WWw and Loudo, ''■'C'Ii.C5l,aca.seofa,i \\ tk East, 16 W. K. 958, where I ilwe was no sufficient notice of the I transfer of the business : and see Kx parte Gibson, 4 Ch. 662, where there was notice, but a refu.sal to accept the new conipany. {t) Familij Endowment Society, 5 Ch. 1 18 ; Nat. I'rov. Life Ass. Sac, 9 E(i. 306. ((/) Dowses case, 3 Ch. D. 384. (r) See Re Argus Life Ins. Co., 39 Ch. I). 571. :'i,'"T5'" 262 ACTIONS BY AND AGAINST COMPANIES. CHAPTER VII. Bk. 11. Chap. Sect. 4. General obser- vations. OF ACTIONS BETWEEN COMPANIES AND NON-MEMBERS. In order to complete the subjects discussed in the i)i'cce(liii:.' chapters it is necessary to examine the remedies by which {h obligations and liabilities already alluded to can be enforced. The remedies which alone are of sufficient imiiortaiice t) require consideration in a treatise like the present are actions, defences by way of set-off, proceedings to enforce judgment>, and proceedings to wind up companies. The subject of wiml- ing up will be discussed hereafter, and the present chapter will be confined to actions, set-off, and execution. Actions by and against incorporated companies. SECTION I.— ACTIONS BY AND AGAINST COXir.AMES. 1. Incorporated companies. An incorporated company, whether it is incorporated bj charter, special act of Parliament, or registration, must sue and be sued by its corporate name {a) ; and as a general rule an incorporated companj' cannot sue or bo sued in respect ol any contract entered into or act done prior to its incorpora- j tion(/>). But to this rule there are statutory cxceptiors. and by the Companies act, 18G2, a company /ovnied before (ft) See 7?e Hodges, 8 Cb. £04 ; Fell V. Burchelt, 7 E. & B. 537, wliere a shareholder in a registered company was unsuccessfully sued. Compare Barton v. Hutchinson, 2 Car. & K. 712. The company should be sued in its corporate name simply. Pil- brow V. Pilbroiv'a Atmospheric I!'"- Co., 3 C. B. 730. As to servicf <: writs, &c., see R.S.C.18S3, Orel a,| r. 8, and Companies act, 1862, ^K. (b) See ante, IX 146, and the nesi j note. IN'CORPORATED C0MPANIEf5. 263 N'ovember, 1862, but registered under the act, may apparently Dk. II, chap. 7. Sect. 1. sue and l>e sued in its corporate name ni respect of such matters as it might have sued or have been sued for if no registration liiul taken place (r). Tlie law relating to actions by and against companies which Actions by and •111 • 1 • 1 • PI as^inst cora- nio being wound up, will be examuied m that portion of the panies being treatise wliich relates to the winding up of companies ; but it ^''"" "'^' iiiav be ubsoived here generally, that when a company regis- tered under the Companies act, 1862, is being wound up, actions, whether by or against it, must be brought in its iiL'istered name {(1), and not as under the "Winding-up acts 111' 1848-9, ill the name of the official manager or liqui- (latur (c). A i'orei'iii company (/), and also a limited company if there Security for coatu , , ., 1 -11 1 • /r- • when company is reason to suppose that its assets will be insufficient to pay sues. tlifi defendant's costs, can be compelled to give security for the costs of actions instituted by it (f/). An affidavit, showing reasonable ground for supposing that the company cannot pay the costs, will, if unanswered, induce the Court to order secu- (^■1 This it is eonceived is the jeneml ettect of 25 & 2C A'ict. c. 80, §s\ 193-1!)5. In Hull Fla.c Co. v. 'Wdkde>j, 6 IT. & X. 38, ealls made before reyistialioii were .sued for aftenvanls in tlie company's re- ;;istire(.l name, ami were recovered. Si.i in Queenshurij Industrial Hociettj v.Mte, L. 1{. 1 Ex. 1, where a swiety registered under 25 & 26 Vii.t, c. 87, reeovered in its regis- trtcil name a del it owing to it be- fore rc^istratiun ; and compare that (.be with /fcaii V. Mvllanl, 15 C. B, N. .S. 1!), and Linton v. Blakcnen hMrid Smchj, 3 H. & C. 853, ritro societies registered under the *iinie act were held not liable to l< siitd in tlieir registered names in ri^iiett of debts contracted before ; rtgiftnuion. The only general con- Insion to be drawn from these cases I !-• that the exact language of each »t imi Bk. II. Cliap. 7. rity to be given (/<). And in the absence of nny evidence i, Sect. 1. ..,..' the contrary, tlie fact that the company is in hqmdation afl'oril> a sufficient reason for ordering security (?"). The amount and kind of security are in the discretion of the Court, and depeivl '^n the nature of the case (A"). In injunction actions a limited company's undertaking to abide by such order as the Court mav ' make as to damages is not sufficient (l). An unlimited company, although it is insolvent and beiiii; Avound ui>, cannot be ordered to give security for costs of an action {m). Actions by the Attorney- General to restrain companies froii! exceeding their statutory powers may be brouglit in cascs where, owing to the absence of any special injury to a par- ticular individual, an action by a stranger will not lie (n). Where companies are amalgamated by act of Parliament, it is generally enacted that actions pending against either com- pany may be continued against the amalgamated company, and in such cases it is only necessary to state the araalgamatiou on the proceedings (o). At common law incorporated companies act in legal pro- ceedings by their agents, appointed under seal ( 2)). Actions by tho Attorney- General. Actions after amalgamation. (h) Southampton Steamboat Co. v. Rawlins, 9 Jur. N. S. 887, mid 2 N. R. 544, ill wliioli Caillaud's, dc, Co. v. Caillaml, 26 Beav. 427, contra, wasi not followed. (i) NorthamiitoH Coal, d-c, Co. v. Midland Wayyon Co., 7 Ch. D. 500 ; and as to appeal?, f-ee Diamond Fuel Co., 13 Ch. D. 400 ; Photographic Artists' Ass., 23 Ch. D. 370. {k) R. S. C. Ord. Ixv. r. 6, a.s to tho old practice, see Imperial Bank of China v. Bank of Hindustan, 1 Cli. 437, niO(lit'yiii}:f Australian Steam Ship Co., 4 K. & J. 407. (/) Amjlo-Danuhian Co. v. Roger- son, 3 N. R. 185, and 10 Jur. N. S. 87. (rti) United Ports Co. v. Hill, L, R. 5 Q. B. 395. This does not apply to appeals. (»() See Att,-Uen. v. Shrevslmrg Bridge Co., 21 Ch. D. 752 ; MUh. V. Great Northern Rail. Co., 1 Dv. i Sin. 154, and Ware v.ReijenCsi.m. Co., 3 De G. & J. 212. Itraaylo inferred from the jiulgment iutl:' latter cape that a deliiiite injury t > the public need not be proved in order to support such an action. (o) See 2« & 27 Vict. c. 92, § 43. ( p) See, as to bankruptcy, 4i) i 47 Vict. c. 52, § 118. As to regi- tered companies, .see 25 & 2G Vict.t. 89, § C4. See, as to the service of writs on companies, R. S. C. Ord. i.v r. 8, Pilhrow v. PiWrotr's AtiM.fh.ik dc, Co., 3 C. B. 730 ; and as to com- panies registered under tlic Coin- panies act, 1862, see 25 & 26 Vii^'' c. 89, § 62, and Tuicne v. Lomlm and Limerick Steam Ship Co., 5 *■'• !*■ N. S. 730; and as to fnreigii com- panies, see Ingnli' v. /./n;,"' .'\mlrM'-". COMrAMES EMPOWKRKD TO SITE AND BE SUED. 265 As between the parties to an action instituted by an incor- ^^^- If- Chap. 7. iiorated company, a retanier unoex* seal ot the sohcitor acting — ,,,..' , 1 / \ r i • i- 1 Retainer under for it Will, if necessary, be presumed (q) ; but m an action by ^cai when that solicitor against the company for his costs, it is question- Presumed. iible whether a proper retainer under seal must not bo proved ()■), if such retainer is essential, which depends on the nature of the company (s). The directors of a company have, it is conceived, power to institute and defend actions in the name of the company, and to do for it whatever may be necessary, having regard to the unlinaiy course of legal pi'oceedings. It has been held that a l)ond given by an incorporated company as a security for costs in an action to which it is party, and in the ordinary course, is not nltra vires {t). In a case where a company was restrained from infringing a patent the directors were ordered to pay the costs (»). In an action by or against an incorporated company, any Directors may be member or officer may be examined on interrogatories (x) ; and interrogated, lio need not be made a party to the action for purposes of (liscoveiy only (»/). 2. Companies empowered to sue. and he sued hy public officers. Cost-book raining companies are empowered to sue for calls Statutory cnact- ments cnablint; by their purser (z). Banking companies governed by the companies to sue and be sued. 4 C. E. N. S. 704 ; Xen-hy v. Von "i7»''H, h E. 7 Q. B. 293 ; Lhonciu l.uwm (0 Co. v. Hong Kong Banking ' iji., 33 Ch. D. 446. ('/) TImmts Haven Dock Co. v. ll'dl, 5 Man. & (!r. 274. ('■) Compare Arnold v. Mayor of ''"'•, 4 Man. & Gr. 8(J0, w \i\i Haigh V. Xorth Bh-ley Union, E. B. & E. 873. (-) a. V. Cumberland, 5 Ra. Ca. ■'■'-■ See as to ennipanies registered iiuiltT the act of 18G2, § 37. (0 Younij V. llrumpton IVateno. ' ■ 'i 1 Best & Sm. 675. See as to M'trences to ai'lntration, Faviell v. ^■mkm Counties Hail. Co., 2Ex. 344. (!() See Ihtts v. De Vitre, 5 N. R. 165, V.-C. Wood, and 3 Ch. 429 and 441. (.>■) R. S. C. Ord. xxxi. rr. 1 and 5. As to the person to examiiio, see Berkeley \. Standard Dincount Co., J) Ch. D. 643 ; 12 Ch. D. 295, and 13 Ch. D. 97 ; He Alexandra Palace Co., 16 Ch. D. 58. (i/) JFilson v. Church, 9 Ch. D. 552. (■•:) See 32 & 33 Vict. c. 19, § 13 ; but tills enactment only applies to calls and to companies subject to the jurisdiction of the Stannary Courts. 266 ACTIONS BY AND AGAINST COMPANIES. I' Who are repre- sented by public officers. ^^' SecfT ^" "^ ^^°' ^' **• ^^ (extended by 27 & 28 Vict. c. 82), and cum. -— panics formed under the Letters Patent act, 7 AVm. 1 \ i Vict. e. 78 (n), arc empowered by statute to sue and be sued in the name of an individual ai^pointed to sue and l)e sued mi their behalf; and there is a large niunber of privato lutsi/. enabling particular companies to sue and be sued in lik, manner. It is customary to designate such companies ft^ compauics empowered to sue and he sued (c), and anionjfst tlicm will be found most existing unincorporated companies foniitil, for other than mining purposes, before the passing of th' Joint-stock companies registration act of 1844. A company which, without being incorporated, is (■nipowcivil to sue and be sued by a public ofticer, is sufficiently lepit- sented by that ofiicer in all actions between the company as ii body on the one side, and a stranger on the other (*/). But, as will be seen hereafter (c), a j)ublic officer does not represent one set of shareholders as against another set ; for lie is (dv the representative of the shareholders as a body. It does not follow that, because a company is empowered liv some private statute to sue and be sued by a public officer, tlierefbi'e a creditor may not sue any one or more of the sliarc- holders. Creditors are not deprived of their connnon law rights by an act of Parliament which is consistent with tlieir retention of those rights ; and there are several instances of special statutes under which it has been held, that, although a creditor might sue the public officer, it was not incumbent on him to do so (/). (a) § 1, repealed by 37 & 38 Vict, Whether pulilic offlccre must bo BUCd, c. 35. Industiial and Provident Societies were formerly empowered to sue and be sued by a public officer, Burton v. Tannnhill, 5 E. & B. 797. By 39 & 40 Vict. c. 45, § 11, such societies are incorporated by being registered under that act. (/)) Thure are also sonie colonial statutes to the same effect. The validity of one of them was unsuc- cessfully disputed in Bank of Aus- tralasia v.Nias, 16 Q. B. 717. See, too, Bunk of Australasia v. Harding, 9 C. B. 661 ; aud Kelsall v. Marshall, 1 C. B. N. S. 241. (r) A good account nf the JH"- gress of legislation relating' to tlii'>i' companies will be t'ounJ in V"< Saudau v. Moore, 1 Hush. 441. {d) See I'cndletitmj v. WnlUr,^ Y. & C. E.X. 424 ; Mau w.ilM'jA Swanst. 277. (e) See book iii., c. !), ^ 3. (/) Blncitt V. 6'or(/o», 6 Jiir, ffi. im- Coleridge, J. ; S. C, 1 Doffl. N. S. 815 ; Pentland v. tfita, 1 Ale. & Nap. 310; BoA v,/>.J Man. & Gr. 415. rOMPANIES EMPOWEIIED TO SUE AXD BE SUED. 267 Aiiotlior ol)servation to be mnde with respect to those private '"''*• 'J- <''''!'• '• r'Oct, 1, acts is, tlint the public officers created by them liave no powers — cxcoitt those expressly conferred upon them. Where, there- j,„i,ii,,'oiiiixi.s. fore, !i company was empowered to sue and he sued in the iiiinio of its secretary, and to institute actions and suits in his name, it was licld that ho had no power to i^etition on behalf of the company for a commission of bankruptcy against one of its debtors (//). Ouestions sometimes arise as to whether a public officer can <^" "'n't <""" ' ti:ii;ts public sue or 1)0 sued in respect of a contract not expressly entered oiricore nmy .sue into with the company. These questions will all be found to ""' turn on the hnigungc! of the act applicable to the company to which the questions relate ; but speaking generally, it may be said that n public officer may sue or be sued upon contracts which are contracts of the company in point of substance, nUliough not in point of form (h). ■ A promissory note payable to the order of a person who is Tiills and notes, in fact a trustee for a company empowei'ed to sue by a public officer ought, if unindorsed, to be sued upon by the payee and not by tlie public officer (i). A public officer may sue for a libel on the company repre- Li'jcls. sented by him (/i). By far the j^reater number of decisions to be met with in the ruMic oirncra liooks relating to public officers, have turned upon the Banking cominniics. not of 7 Geo. 4, and to these decisions, so far as they relate to actions between companies governed by the act on the one hand, and strangers on the other, it is now proposed to direct tlie reader's attention. (;;) ilufhrk v. Fish; 3 B. & C. 178; and see Ex parte Guthrie, 1 I'l \ ,laui, 245. Some of tlie older rtits only I'Mipower companies to ^iie liy tlioir public olKccr.«, and are altogLtliL'i' silent about their beinj; >ueil. See the act which was in 'I'lestiou in Mnu v. Malthn, 2 Swanst. 277. Jlore modem acts •wo nuich more coniprehen.sive in their terms, Sec now Bankruptcy Rules 1886, r. 2o8. %>i;n[hij V. Smith, :i B. & Ad. 929 ; Smith v. Goldsworthy, 4 Q. B. 430; IFilh v. Sutherland, 4 Ex. 211, and on appeal, 5 Ex. 715; SIdnner v. Lambert, 4 Man. & Gr. 477. See, also, Cohham v. Holcombe, 8 C. B. N. S. 815. (i) See M'Dowell v. Doyle, 7 Ir. Com. Law Rep. 598. Sue as to bills payable to officers for the time beinj,', 45 & 46 Vict. c. 61, § 7, cl. 2, ante, p. 230. {k) Williams v. Beaumont, 10 Bing. 260. 268 ACTION'S HY A\n AOAINST COMPAMKS. nk. y. Chfti.. 7. The Banking net of 7 Geo. 4, c. 46 (/), has been docidrd t, require imperatively, that all actions by or against conipanit. Decisions on , , .,,'1,1 , 1.1 • , , . 7 (ieo. 4, c. 46. govorneu by it sliall be brought by or against their public officers, and not otherwise (m). Wliat is to be done if tlioio h no public oflicer is not clear (//) ; perhnps now, in sudi a mso, a creditor could sue the company in its mercantile nniiu; m sue some of the members on behalf of the whole company {0). The fact that the company has stopped payment does nut prevent it from suing and being sued by its public oflicer, j-i; and if a banking company changes its name, the public otluci of the now company represents the old company {7). ^Vlmtovei number of public officers a company may have, one only sliouM sue or be sued (/•). The bankruptcy of a public oflicer does not prevent his being sued as such (s). The change of a public officer pendente lite does not affect the action {t). If an action is brought by a public oflicer, and he dies or is removed, and no steps are taken by his successur to prosecute the action, it may, after the Inpse of the iisiial time, be dismissed with costs for want of prosecution («). Action by a per- It is to be observed, that if a person who is not a public son who assumes .„ , , 1 • 1 , to lie a public oihcer, sues as II he were, the company wJuch he assumes ° '■'^'' to represent is not a party to the action, and consequent!}- Efloct of I han;^ in^ piililic officer. (0 Amendea l.y 1 & 2 Vict. c. 9G, 3 & 4 Vict. c. 11, and 27 & 28 Vict. c. 32. (m) Steward v. Greaves, 10 M. & W. 711; Cluqiman v. Milvaiii, 5 Ex. 61. Conipari; Robertson v. Sheward, 1 Man. & Or. 511. See us to laying intent to defraud in indictments for forgery, A", v. Carter, 1 Car. & K. 741 ; 7.'. v. IJearil, 8 Car. & P. 143 ; 7/. v. James, 7 Car. & P. 653 ; and //. v. Ihmjiss, ih. 490 ; and as to an affidavit to hold to bail, Spencer v. Newton, G A. & E. 630. The Industrial Provident Societies act, 17 & 18 Vict. c. 25, was also imperative, Burton v. Tan- nahill, 5 E. & B. 797. (n) See Steward v. Greaves, 10 M. &W. 711. An indictment will lie for stealing the property of tbe com- pany altlioutrli there is 110 imblic officer, E. v. Pritchard, 7 Jur. .N'. H. 557. (0) SeeRS. C. Onl.xvi. rr.Uaiil 14. ( p) Da vidson v. Cooper, 1 1 .M. i AV. 778 ; Needham v. Imu; ib. 400. {q) Wilson v. Cnmn, 8 M. & W. 584. ()•) Holmes v. Bmmj, 4 Bin;;. >'■ C. 454. (.<) Steward v. Dinni, 11 M.^UV, 63. (0 See lVebhv.Taijlor,Shr.i^; Todd v. Wright, 11 Jur, 471 ; Barn- wall v. Sutherland, 9 C. B. 380, nul Patersonv.Tronside, 14 Jur. 722, i'"''' (h) Bnrmestcr v. Von Sknl:, -3 Beav. 32. COMl'AXIES KMl'OWEUED TO Sl'E AND HE SUED. 209 will not bo nflecU'd by the judgment in it ; hence the fact, '"«• "• Cliap. 7. tiiiit the pliiintirt' is what lie pretends to be, is material and travci'siibli' (.'•) ; and declarations and aflidavits bj' public oiliccrs have been held bad for not stating with suflicient precision the character in whicn the plaintiff on the record WHS suin'^ and the existence of the company he assumed to ivpi'fsent (,v). Mtliouf'h, as has been seen, n public ofticer may sue on ^'<""pany muit Itplmlf of a company Avlnch has stopped jjayment, there can be businesH. no public officer under the 7 Geo. 4, c. 46, of a company which 1ms not begun to carry on the business of bankers under that act(:). In an action against a public officer as a nominal defendant, rie;i tlmt inison he may deny that he fills the office he is assumed to fill («). j,",biicVm'oor. But this defence will be of no avail, if the only evidence to support it is that the company has ceased to carry on business (/*). A plea of the bankruptcy of a person sued as a public officer will not be allowed to stand, if the plaintiff will give an undertaking not to issue execution against the person or property of the defendant himself (c). Under the 7 Geo. 4, c. 46, public officers are appointed by Aiipointmont of imlilic orticers their respective companies ; and returns are requu-ed to be under 7 Oeo. 4, made to the Stamp Office, in the foi-m given in the schedule ''' ' to the act, stating the names and places of abode of the persons so appointed {d). The most formal evidence of the appoint- ment of a particular individual to be a public officer of a com- (.f) See Barncwall v. Sutlierland, i) ('. B. 380; Stemml v. Dunn, 11 M. & W. 63. (;;) See Es(hnk v. Maclean, 15 M. & W, 277 ; Mclntijre v. Miller, 13 ill. 725 ; Fletcher v. Crosbie, 9 ib. 252; Christie v. Peart, 7 ib. 491 ; Sliilkr V. Johnson, G ib. 570 ; David- Mi V, Bower, 4 Man. & Gr. 626. See as to atlidavit.s Ex parte Tor- hiiigton, n Ch. 298 ; Ex parte Lowen- thai, ib, 324. Compare Robinson v. i^hvard, I Man. & Gr. 511, where the character in which the plaintiff Wis suing did not appear on the record, and was not in issue. (;:) Hoc V. Fuller, 7 Ex. 220; Stexcard v. Dunn, 11 M. & W. 63 ; Fletcher v. Crosbie, 9 M. & W. 252 ; and compare Davidson v. Bou-er, 4 Man. & Gr. 62G. (a) Qii. whether the denial must not be supported by afiidavit, IVoud V. Marston, 7 Dowl. 8(55. (b) See Necdham v. Law, 11 M. & W. 400; Davidson v. Cooper, ib. 778. (c) Steward v. Dunn, 11 M. & W. 6."' ; Wood V. Marston, 7 Dowl. 865. (d) 7 Geo. 4, c. 46, § 4. 270 ACTtON'S HY WD AGAINST COMl'AVTKS. roMiM Iiiti'rniK.itiiiK Public oflicors of coiniianios Kovoriifil by 7 Win. l k 1 Vict. c. 7;3. Ilk. II. Cbftp. 7. panv, IS the return made 1)V the compaiiy to the Stump Ollii'i> m pursiuinco ot the statute. But it ha.s hcen frcquonllv decided tluit the appointment may be proved otherwise than by such returns, r.;!., by parol testimony, and that an inioniinhtv in « return is of no importance, if satisfactory evidence (ditinde of the alU'ged appointment is forthcoming (c). It lias been decided that if u public otticer brinj^s uii action, he may be interrogated by the defendant (/). The law relating to public ofttcers of companies formed under the lictters ruteiit act, 7 Wni. 4 i!^- 1 Vict. c. 73, will be found in §§ 3, 13, 22, 23, 24 and 25 of that act. Theiv have been no decisions upon it bearing upon the present subject, but it seems clear that a company governed by it must sue nnd be sued by its public officer, if there is one; but if there is not, then any member of the company inny be sued. - . • • 8. Other unincorporated companies. Diiliculty o£ Unincorporated companies not empowered by statute to sue Judicature ActH. ^^^*^ ^*^ sued by a public officer, must sue and be sued like ordinary partnerships (g). This observation applies to unin- corporated cost-book companies (//). Consequently, before the passing of the Judicature acts, it was extremely difficult for unincorporated and unprivileged companies to sue at law at all, and various unsuccessful attempts were made to avoid the necessity of joining all the proper persons as co-i)laiiititfs(il. ((,') Edwards v. Buchanan, 3 B. & Ad. 788 ; li. V. Carter, 1 Car. & K. 741 ; R. V. Beard, 8 C. & P. 143; Ji. V. James, 7 C. & P. nss. (/) M'Kenna v. Eolf, 3 Jur. N. S. 714, Ex. {g) As to which, see Purtn. book ii., c. 3, pp. 264, et seq. (h) Such conipaiiies can sue lor calls by tlieir purser, ante, p. 205, but there is no statutory enactment enabling them to sue and be sued generally by that officer. {{) See as to all such attempts, Hadenhurst v. Bates, 3 Bing. 470 ; and as to agreements to enable actions to be broujjtht by tlie chair- man for the time being uf tlie dire tors of a company, 11"' ' bridge, 1 Man. & Ci M directors for the tii ..j; of a company, Pheljis v. L;> " A. & E. 113 ; Woolmer v. Tohj, 4 Ha. Ca 713 ; by the purser for the timt being of a cost-book coiniiany, Hijhart v. Parker, 4 C. B. N. S. M; by the managers of a mutual marine insurance society, Gray v. Ptarm, L. R. 5 C. P. 568 ; Corner v. .V«- ivell-Inoin, Ir. R. 10 C. L, 354, Oa Hut even as ti diiliculty in tli iif II debt owiii sue all the slia >iic(l, ho migli iniisiniu'h as si iiiunes of all tl (hints, nnd uul was strictly pi'i cilly iiiipossili lo (ibstnii't or ( in abatuniout, li ]Kildei'.s (,;'). The alterntio hy the Judicatu diiliculty in the an action may shmvliolders on eunnuou iiiteres necurred nmouti^ iuthenninc oft Actions in tlii when renting ol I'li's; but it nit •'ndicature acts, themselves and i •jiiently institute( the right.s of the t" rescind a con ilie -her hand a coni '"' i ufaciiinpan; wi \>) the agent, unit' «-as on the iuce of it '"■"Iiany tliruugh it '•■''(!/ V. Hoiakirn, 7 I '< may now. 0) (^•■dlin v. Cake "■■ iVoo/., 14 M. o;; \\ ''•lined tu as illustrat COMrANIES KMPOWKUKD TO SUK AND UK Sli:i>. 271 lint won as tln' liiw stood before tliosc acts, there was no grout '"*• "j^j^''*''' ^' ililliciiltv ill tlir way of a creditor wlio sought to obtain imynient ufadobt owing by tlie company. For although if he did not sue nil the shiu-oholders who in strictness ought to liave been sued, lie might have been met by a plea in abatement, yet iiiiismiu'li us such a plea was of no avail unless it disclosed the iiiiiiies of ((// the persons who ought to have been made defen- (Iiiiits, ftiul unless it was verified by aflidiivit, and unless it WHS strietly proved if issue was taken upon it, it was practi- (iillv impossible for a member of a largo company seriously to obstruet or embarrass a creditor by having recourse to a plea ill iibiitement, founded on the non-joinder of the other share- Iiolders (,/). The altorntions made in the law respecting parties to actions Altorutiniis niailo ly tiic .liulicature acts and rules, have, however, removed the tmo Acts, ilillieulty in the way of unincorporated companies suing ; for nil action may now oe maintained by or against some of the sliaivholders on behalf of themselves and others having a cuiuuioii interest in the action (/r) ; or, where no change has iictuiTod amongst the shareholders, an action may be brought in the name of the company (/). Actions in this form will have to be adverted to heieafter ^'^','°»^''y ^°""' on liehalt of when reating of actions between companies and their mem- tiiemseUcs and Urs; liut it may be observed here that even before the •Iiulicatm'e acts, suits in equity by some persons on behalf of iliciiiselvos and others having a common interest, were fre- 'inintly instituted to enforce equitable rights, e.g., to enforce the riglits of the mortgagees of a company's undertaking (m) ; t" rescind a contract for fraud (/t) ; to enforce specific per- ihe Vr hand u contract made with '"■ t of a Cdiiipany might be sued "11 i'N tilt ageut, ulllc^'ij \. Houtluni, 7 y 717, and so it may now. (j) Ci-dUn V. Calvert, and UrelHn v.i'/TO/,, 14 M. ^; W. 11, may be :ftkiea tu as illustratinj,' the above observation. (/.) B. S. C. Ord. xvi. r, 9. (I) lb. rr. 14 & 15. See Partu. book ii., c. 3, § 1, p. 2C5 et seq. (w) Tripp V. Chanl Mil. Co., 11 Ha. 241. (n) Small v. Attwood, Yoiinge, 457 et seq.; Feun v. Craig, 3 Y. & C. Ex. 213. I .»! 272 ACTION'S BY AND AGAINST COMFAXIES. Bk. II. Chap Sect. 1. Some on bebalf when firm is sueiJ. formance of an agreement (o) ; to obtain an account (p), ^,y „], injunction (q). So a suit against some of the members of a nuineroi'..s paii- nership or unincorporated company, might be maintained to enforce an equitable right if it was a right against the whole body, and one which all the members thereof had a conimoii interest in opposing (?•)• But suits in this form could not be maintained to enforce purely legal rights, on the ground that it was inconvenient to sue at law {s). Now actions in this form are maintainable in all the divisions of the High Court. Such actions, however, are occasionaHv attended with inconvenience, for although judgment may U obtained, h may be found practically useless. Meux V. Maltby. The case of Meux v. Malthy (t) illustrates this. A suit was there instituted against the treasurer and the directors of a company, to obtain the benefit of an agreement made with the plaintiff by the former owner of property whieli Iiad become vested in the company. The agreement was an agiee- ment for a lease, and the Court made a decree in tlie plaintitT's favour, but found itself unable to decree the execution of any lease to him. The defendants had no power to convey the legal estate in the land, and all the Court could do was to declare the plaintiff entitled to a lease, and to restrain the officer from bringing any action to disturb the plaintiffs possession. (o) Clay v. liufford, 8 Ha. 281 ; and see Douglas v. Horsfall, 2 Sim. & Stu. 184. (p) Gordon v. Pym, 3 Ha. 223. (q) Lund V. Blanshard, 4 ilj. 290. (?•) See Pare v. C'ler/g, 29 Beav. 589, where a suit was instituted liy the creditor of a benefit society against its trustees, and one of each class of its members. See, also, Adair v. The New River Co., 11 Ves. 429 : Meux v. Malthy, 2 Swanst. 277 ; Fenn v. Craig, 3 Y. & C. Ex, 216 ; Cullen v. Unle of Quecmhm, 1 Bro. C. C. 101, and 1 Bro. P. C. 396 ; The City nf London v. EA- mond, 2 Vern. 421. (.•,') Allison V. Herring, 9 Sim. 583. (0 2 Swanst. 277. See,ton,Z,iisJ V. Blanshard, 4 Ha. 290, wlicro an injunction restraining,' a del'emlant from suing the plaintiffs, wii3 hell not to preclude the defendant from suing other persons on behali d whom the plaintiffs filed their bill. SET orr, 273 IJk. II. Chap. 7. Sect. -2. SECTION' II.-OF SKT-OFF liY AN'D AGAINST COMPANIES. In actions between companies on the one hand and non- iiiembers on the othui, there is little to be said upon the •ibject of set-off, except that the ordinary rules are ai)plicable ; tke most important rule being that joint debts cannot be set- ii;l' against separate debts (»). and that the debts of a body Lorpomte cannot be set-off against the separate debts of its iiiembeis. UnUquidated damages may be ^set-off in an action iivthe company although it is being wound up (x). It is only when a company sues or is 3ued by one of its own Set oirwliere a ' . . . coinpvny sues ft members, or by some person claiming under hnn, or when one meiuber. member of a company, having obtained judgment against it, seeks to enforce such judgment against a co-member, or when ;i compmiy is being wound up, that questions of set-off present peculiai difficulties. These are matters, however, which will III' more conveniently discussed hereafter, and the only obser- vation which requires to be made here is, that in actions between a company on the one hand and one of its own members on the other, the member is so far treated as a stranger to the company, that cross debts existing between liim and the company may be set off against each other {y), but that cross demands between himself and other members iiiilividually cannot be gone into. As regards incorporated lompanies, this follows from the circumstance that they are liistiiict from the members composing them ; and as regards mncoii)orated companies, it follows from the doctrine that a tUtilue from or to several persons jointly', cannot be set off a-'ainst a debt due to or from some or one of them onlj'. Mureover, if a member of an unincorporated joint-stock Set-off where I „,,„ ■ ,., « ,, 1 • • • • one iiictuber sues lompmv IS a creditor oi the company, and is in a position to another tor a sue the other members or any of them, it is no defence that ifthecomS>y5 Itlie company were wound up, and its accounts taken, the iiititl would be found indebted to the coinpaiiy as a sliare- jliolder thereof. ^ In such a case as that now supposed, the («) Pattn. book ii., c. 3, § 2, p. {') ilmeij ^ted and Iron Co. v. App. Ca. 434. (;/) Garnet Mining Co. v. Sutton, 3 li. & Sm. 321. 274 ACTIONS I!Y AND AGAINST COMPANIKS. Bk. ir. Cliap. 7. pljiintiff sues as a non-membev ; and if his denir'-l is Olli.' capable of being enforced, be will not bo prevented from enforcing it, siinidy because in bis character of member, he is indebted to his co-shareholders. This is well illustrated Iv a case before Lord Cottenham, which may be couvenieutlv noticed here, although it will have to be referred to again in connection with another subject. In the case iu question, Rheam v. Smith. Rheam V. Smith [z), the plaintift" and one of the defencknts were members of an unincorporated joint-stock conipanv; tlie defendants were the bankers of the company, and had sued the plaintiti" for a debt due by the company to the defoiidants iis bankers. The plaintiff thereupon fded a bill ngainst tlif bankers and the company, upon the grouiul that lie ou|^'Iit nut, as between himself and the bankers (one of whom was a sliuio- holder), to pay more than what, on taking the accounts of the companj', would be found to be due from the plaintiti' in respect of the debt in question. The bill accordingly prayed that the accounts of the company might be taken, and its affairs wound up, and that provision might be niiule for diio payment of the debts of the company, and that in tlie mean- time the action, and all proceedings therein, might be stayed. A demurrer to the bill was overruled by the Vice-Chancelhir, who, it is said, treated the case as one in which a partnership of A. and B. was suing a partnership of A,, C, and D., in which case it would be contrary to equity to allow the debt to be recovered without first ascertaining for what i)rop()rtion of it A. was himself liable {a). But on appeal to the Lord Chan- cellor, the decision below was reversed, and the dcmiurer was allowed : the Lord Chancellor observing, — " It really seems to me that, if the ^jriuciple apou which tin's demumri! said to have been overruled liy the Viee-ChaiiceUor wore adiiiitteil, itmiglit lead to the most frightful cousu([Ueiices ; for it coun•^■ to tills, that if :i railway company, or any company carrying on groat works, ami who may have become iudebved to some contractor in half-a-million of nimieyfor Work done, upon that contractor applying for payment of lils debt, can lir.il (,v) 2 Ph. T2G. clear that althoa-li mic iMiti.'f {a) The fact that such an action might under certain ciiciinisMiiw riuild not be maintained at law, is sue another at law, A. and 11. C'Ui not noticed in the report. But it is not possibly have sued A, amlC SET OFF. 275 (",it tlmt ho, nr any one connected with liim in Inislucsf?, holds a sinj^dc shave Hk. II. Cliap. 7. in ilii' coiiipaiiy, tliey may say, No, we cannot pay our deht : you must 'J^h3^' tir-t liicak up tlio com]iany, and ascertain wlielher its assets are suliicient Kheam r. Sinitb. I r iiavmcut of its debts, fVir if not, yuu or tin' persons connected with you will Iiu iiaUe to contribute to the verj' sum which you seek to recover. It is iiniiossilile to stop sliort of that it' the ]irincii)le be once admitted. After sumc ililHculty a rule has been establislied at law, enaldini^ creditors of tlie.-e great cdnipanies la enforce their claims aj;ainst individual ."hare- linlders, leavin;i them, of course, to their right to contribution against their di-iiarliiers. The rule, no do".bt, leads sometimes to hardship ujion the iiaily sumI, but the liahmce of convenience is in its favour, and for that nasuii it Las been adopted : because it wouhl be a still greater hardship inon parties dealing with such comjianies, if the enforcement of their ilaimswcrc to be endwrrassed by the necessity of treating all the members i4 till- company as jointly responsible. This suit, however, is an attem])t tHiiiiliice a ciiurt of equity to interfere with that rule, for the plaintilf, by hi- liill, asserts in eil'ect nothing short of this proposition : — If I can lind nut that you, who are suing luc at law, have a single .share in the co..ipany ;>.'iiiii«t wIkjiu the claim is made, then there is an end to your legal right ; ii|ui!y will interfere, and though your money may have contributed to the is'.ahlisluuent of the company, you shall not be permitted to recover a Mn.'lf I'artliiug against any member of the conipany until the concern is alti i^'L'tllL'l' Wound up."' It must not, liowever, be inferred from this case, that if a moiuber of a C(iinp;iiiy has a doniaiid against it, and seelcs to enforce tliat demand against some member of it, he may not be met by some defence based on tlie rights of the members inhr sc. This subject will be examined in the third book, wlienthe rights of members inter se are discussed (h). file general ride that an assignee of a debt is in no better Sct-otr against ,,-■.•.,,. . . 1,1 1 1 l'ol< -1, made perpetual by 38 >.'(: 3!) Viii. c. 31. KXKCtlTION AGAINST THK COMPANY. 270 lit' such ii comiiany can obt'iin a receiver of the earnings of '"^- If ciiap- 7. the coiuimiiy ()()) i'li'l t-an issue execution against its uiipro- tooted property, and ol)tain a sale of its surplus lands (o). A corporation cannot be attached for contenii)t or for dis- Attacliments. obodieiiec to an (>r(ler made upon it (ji). But if an order is made upon a cor[)(.iration, and its directors or officers set the Older at dofiancc, an attachment against them personally will, if necessary, bo granted {q). By the llules of the Supreme Court, 1883, Ord. XLII. r. 31, it is provided that: — '•Anv jiul^'iiu'iit or order nj,'ainst ii corporutiun wilfully disobeyed, may, Executions Kv kiivo of the Court or a ,jiidj,'e, Ijc inforoed by se(piustrati()n a^'uiust the '''nainst com- mi'pDrate pmiHrty, or iy iin altacliuieiit against the direotors or other ollicers tlieiuof, or ly writ of secpiestration ogaiust their property " (r). ^ '"^ ""°° **' Acts of Parliament arc sometimes met with which empower Under Acts a company to sue and be sued by a public officer, but which, co"l,"nyVfumls instead of giving any remedy against him or the other share- "'""" hablo. holiiers individually, render the funds of the company alone liable to its creditors. In such a case no execution against till' public oificer of the company, or against any of its share- lioldors, can be issued (s) ; but an action against the public ottioa' will nevertheless lie, even although there ma}' be no faiids, and the plaintiff may consequently have no means of Hifoioin^' Ills judgment after he has obtained it (t). If there lire funds they can be got at ; but before the Judicature act it WHS said that the only mode in which a creditor could get at tliom was by )ii treasurer and directors, after establishing his doljt in an ac- tion (.(/). If there are no funds, and the company is not umlti an obligation to provide any, no mandamus can be grniitedci; but if the company is under an obligation to provide fund?, and it will take no measures to raise them, it seems that ii viandamus will go (a). It has, however, been held tliat a writ of mandamus will not be granted if the only reason why pnv- ment cannot be obtained by execution in the ordinary wnv, is, that there is nothing to seize (h). The effect of winding up a company upon executions against it will be examined hereafter in the Fourth Book. 2. Proceedings against shareholders vpon a judgment dhtimul against a eonqntni/ or its jnddic oJ)ieer,generalhi. PtiarelioKlcr can If a company is incorporated, or if it must be sued Lv ;i only be ]in)- i t «• ce.>(lo(i ai,'iiinst public ofhcer, a creditor cannot proceed by action against a a'ahiit'thc"'"'^ shareholder; but must obtain judgment against the compaiiv cuniiiany, and then proceed upon that judgment (r). It seems U 1 doubtful, whether a county court judgment against a coniininy can be executed against its shareholders ; hence the pnideni • of suing companies in one of the superior courts ('/). in sucli cases, as in Cane v. Chcifinan, 5 A. & E. 647 ; but see Addison v. The Mayor of Preston, 12 C. B. 108. (x-) See Norris v. The Irifh Land Co., 8 E. & B. 512, correcting llenson v. Pa^dl, G E. & B. 273. The section was repealed by 46 & 47 Vict. c. 49. The Supreme Court Rules of 1883, Ord. liii. rr. 1 to 4, have taken its place. {y) See Corpe v. Glyn, 3 B. & Ad. 801 ; R. v. St. Kntherinr Docl; Co., 4 ib. 360. (s) E. V. The Vktm-ia Park Co., 1 Q. B. 288. (fl) lb.; and see I!. S.C. Old. liii. r. 1. (b) See li. v. The Victoria I'd Co., I Q. B. 288. (c) Fcll\.]hirchdt,7 E.&B.53:; and see as to public ollieers, ontc, !'■ 265, ct seq. {d) See Taylor v. y/c CnuW C:l^ Co., 11 Ex. 1. , . KXF.CtlTIOy AOAINST SHAnEIIOLPEnS. 281 Bv the common law, a judpiient ngniiist A. cannot be oxo- '''^- 'J- P*P- "^^ ii<'iiiiist B. without n scire J'((cie had not had that oppm'tunity before (/). Proceedings by sci.fa. have not been abolislied; but a much Order XLIT. himpler mode of proceeding has been introduced by the Rules of llio Supreme Court, 1883, Ord. XLII. r. 23, which pro- vides that— " Where a pavty is entitled to execution against any of the shareholders oi a jdiiit stock company upon a judgment recorded against such company, orugainst a public ollicer or other person representing such company, the party alleging bimself to be entitled to execution may apply to the Court era judge for leave to issue execution accordingly, and such Court or judge may, if satisfied that the party so applying is entitled to issue exerutioii» make an order to that effect, or may order that any issue or question nece?-ary to determine the rights of the parties shall be tried in any of the ways in which any question in an action may be tried. And in either case ^uoh Court or judge may impose such terms as to costs or otherwise as shuli IrjUSt," Tiiis improvement in procedure renders it unnecessary to I'tfev at length to the old rules of practice relating to sci.fd.; kit as they may be still useful in some cases, a short account I vi iheiii is given in a note at the end of the present chapter. A judgment or writ of execution against a company or its Registry of jmlj,. huiblii.' olRcer may be registered like any otlier judgment or "oiu^,aukiij! I wit of execution ; and in vhoir-e cases in which a judgment :s equivalent to a judgment ngi.inst all the members of the j company individually, and is enforceable against them, it has l)een supposed to afl'oct them an if it had been in form a judgment '<) Vi,m V. Pike, 8 CI. & Fiu. Com. Dig. Pleader, 3 L. ; Bac. Ab. |6o2i Heu/e!/ v. Chichester and Mid- ;SV). fa., and the note to Underhill v. yintMl. Co,, !) E(i. 148. Deverev.r, 2 Wms. Saund. 71. (!) See, generally, as to sc(. fn. 282 EXKCTTTION AOAINST Sir.UlKHOLDKRS. Bk. II. c'lrip. 7. agiiiiist tliem iiidividimlly and roptistorod nccordi' ^'1\ ((/). ];„[ Sect, lit ^ ' ^ ' ' -- as a jiid<,Mii('iit iigniiist a conipiiiiy or its public ollicor innll not bo c'XC'cutod nj^'iiiiist an iudividiml sharehuldoi' ot' the c-iii. pany without a Hci.fd., it could not bo reasonable to iimketht judgment a elmrj^'c on bis property before executiuii nirniii.t him could linvfully be sued out (/<)• A judf^nient registerei! against a company governed by the act of 18G2 obviously duos not affect the property of its members. Diacnvory of In order to enable a creditor who has obtiiiiicil jii(lj,'iiiti,! sliareliuKlcrs. . . t i • , aganist a company to discover tlie persons ngiuu^t whom muIi judgment may be executed, i)rovision has been made bv tl; various statutes relating to companies compelling tlicii: tu make periodical returns, or to keep registers, of the iimucs nini residences of their sharehohlers, and directing such retiuiis ur registers to be open for inspection (/). Bight of creilitor A creditor who has obtained judgment against a comiKiiiv. to proceed iigiiinst i • ■ -i- i r ii i. . ^ ■ ^ ^ • individual .sliiuo- iwd IS HI a position huviully to execute such juilgiiiGiit aguiiisi holders, ^j^^ individual members of that company, cannot be restraiiieJ from proceeding to execute it against any member or imiiiki- he may choose to select, provided he acts bond jidc for tli; purpose of obtaining paj'ment of what is due to liini(/,). But. {y) See /v' imrte i\ ;si^, o C. B. 155. (h) See JFioris v. The Uoijnl Brithh Hank, 2 II. & X. 5.35. It lia.s bueii liulil in Irolaiul that a jiidguient obtained a;,'ainst a com- pany ouyht not to lie regi.stered against a loiniei' shai'ehol(h'r. See Hone v. O'Flahcrtic, <) Ir. Ch. 11!), where relief against sucli registra- tion wa.s given. See, also, Ex imrle Thornton, "-l Ch. 171, as to register- ing winding-up orders. See now 51 6 52 Vict. e. 51. [i) See 7 Geo. 4, c. 4(), § 4, et mi.; 7 Wni. 4 & 1 Vict. c. 73, § (J, d scq. ; 8 & !) Vict. c. 10, §§ i), 10, 36 ; and as to the mode of obtaining in- spection, see Mcadir v. I. of Wifjht Ferry Co., 9 W. R. 750, E.\., where a niandainiis was held not ncces- .sary ; li. v. The Jli-rhijaliinlvnl.i.. 3 K & 15. 7H4, wliere a iiiainl.im'- was obtained. As Id iXiiiiiiimi.''l'-' directors, see lJii:kMn v. .Vi'if/i '(-' Brecon Hail. Co., L. I!. 4 Ex. ^:. See, also, II. S. (.'. Oi'd. xlii. r. K ct scq., as to di.scuvcry in aiJ '' execution. (/,•) See Morinsc v. TItr l^y'l Briti.'ih Pntnl;, 1 ('. V>. X. S. O:; Grcni V. Nixon, 23 I'eaw 530. ^^k. , also, Hcmlivye v. ll'iliMi-r, 1 I'r. ;> Sin. 101, where it was ln'M tlut .i member (jf a coinpauy wliu Iw.I "i- tained judgment against it coiiH ^ not be restrained from eiiforinjl that judgment a.^aiiist aiiotlurl member of the same compam-. The company was govcniol 'y ' & 8 Vict. c. 110, and lui'l lw« amalgamated with auotlier m-^ r.XIX'UTION AOAIN'ST SIIAIlKllor.DKllS. 283 „ »ill be seen lioreiifter, neither ii iiKl'Miient creditor, nor a ''''^' "■ ''l''M'- 7. .i> will .in ^^,g^ g_ iiurdinscr fi'om liim, will be allowed to use the judgment for tliu (lisliouoHt purpose of aiding sonu' members of the company iinaiiist the others (/). riioii a proceeding against a shareholder to enforce a judg- ment iilremly (ilitiiined against a company or public oflicer, the >li:iR'lii)liU'i' 1*5 bound by the jtulgment, and cannot impeach it, ixcc'pt on the ground that the judgment itself was obtained by tiiiml (///). A judgment obtiiined by default is, in the absence nf fiiuu!, us conclusive against thi' shareholders as any other j jn(l};mciit(/0. A jiulf-niciit obtained by fraud and collusion is however Kx ■(].iinn in , . 1111" i i." n'iii'i 1 <'HM's (if Iriiiiil nil iilwiiys aiipt'iicliabU! by innocent parties allected by it ; and ,1,,, |,,„^ „,■ ,1,^, howwer high the tribunal in whic'i the judgment has been '"'^'''••'J'- ! piiiuuuucetl may be, its invalidity ou the ground of fraud may W exiuuincd by any inferior court which may hai)pen to be died upon to give eii'ect to it {<>). If, therefore, a shareholder j is pi'oceedf d ngniiist upon a judgment obtained by fraud on the pan of the creditor, the judgment maybe impeached; and it sems thiit tlie shareholder may at his option either apply to tlieCuui't ill wliich the judgment was obtained to have it set l;i>i(k', or rely on the fraud ns a defence to a scL fa,, or to an I uiililinitioii fi)r leave to issue execution as the case may be {p). It is to be observed that the fraud here referred to as VrA\\<\ \>y mu- il 'iiliug ii defence to the set. fa., is fraud ou the part of the liui.iui'iino.s iK.t |jii.lj,'miiit creditor in obtaining the judgment. Fraud on -i i":"t<'.'t l.ini iWu I ' P> J O KL-1 la. Wliuklor by the directors of the company, and to which ll'iiiviii wliii'li the (luft'iuluiil was a iMiaiiWldi'i', Ijiit till' pluiiitiir ^vll^i Ii'jt. !') Sa' U'wiilhiin.-i V. A)iijlo-Aus- ^"''mi\,i[)v(;.J. &. Sm. l()2. i« Sa- /■,,/,/.// V. !;a;jn, 1 II. & p. .V.iO ;/;,•„,% y.Kiirc, 11 M. & |1V,4:!2; J.;,,-/,!)- V. Rn-hrhij, 2 Man. ";ijr. ;oo. («) Grmt V. Niwn, 23 Buav. 530. piilsii, i'.c ji;((c(t Cliorleii, 11 Eii. '■See Klmhli.n v. J'atiic':, 1 N'l. .-jDo; Th'i !)nc!i,s.i of Kiuj- HtciHA C((fi'.i!s. Bk. II. Cliap. 7. 2. Against anv person wlio was ii member of the cumiiniiv at the tune tlie contract sued upon was entered nito ; or 3. Against any person who became a member at anv tin;,. after such contract was entered into, but before [■ was exe- cuted ; or 4. Against any person who was a member at the time when the judgment was obtained. But persons who are not members for the time being, m\ so do not fall within the first class, are only liable for iIiivl' years after they have ceased to be members (//). Moiiil)''is fdi- ilic It appeal's, therefore, that a creditor must go first of nil against the members for the time being, and that until liolnb done so he cannot go against late members (//) ; and by nieniljcis for the time being are meant, not members at the timejudgmeiit was obtained against the public officer, but members attlietiiiU' a ficLfa. or summons on the judgment is issued {<•). Members for the time being in this sense can be proceeded against at once, and the statute expressly allows proceedings to bo taken against any one or more of them. Their li.ability, it will k observed, is much more extensive than the liability of ordiiiaiy partners ; not being confined to debts incurred aftei' tiny become partners. A sci. fit. (or now a sammons under R. k. C. Orel. XLII. r. 23) is the proper mode ot' proceeding against sliarelioldeia under this act ((/) . The names of the shareholders can be ascertained from tli? returns made to the Stamp Office (c). ' A creditor is not bound to proceed against all the niemb'^ for the time being before having recourse to foruier members; Former mcm- liors. (ft) 7 Geo. 4, c. 4(i, § 13. (6) Hence a late member was a competent witness for the jiublie ollicer. A'tedhuiio v. Lav:, 12 M. & W. 56J. (f) See Ihdjaon v. Bvott, 2 E.\. 457. See, too, llnulUij v. Kijrc, 11 ^1. & W. 432, which turned on a private act in which similar words occurre. 110. IN COMPANIES GOVERNED BY 7 GKO. 4, C. 4(). 287 ],nt lir must make cvovy reasonable effort to obtain payment ^>^- ^^- *-'li*I'- '• jiMiii tlio tii'st before he acquires a riglit to proceed against the l;i4. Acting upon this principle, the Court allowed a sci. fa. to issue an^ainst a late member, although proceedings against a rneinbev for the time being were pending, evidence being given M show t' 'it nothing was to begot from him, and that evi- ili'ice being uncontradicted (/). So in another case, a late •juiuber wa'' allowed to be proceeded against, although sonie „Rlvof the meml)ers for the time being had becin sued ineffec- tntillv, uncontradicted evidence being given that inquiry had been made as to the solvencj' of the others, and that there was reason for believing that payment could not be obtained from aiiv of them ([/). So it was unnecessary for the creditor to i«5iie writs of ai. sa. against the existing shareliolders before fiMceeding against former members (//). jNIoreover, a mort- fiiiif wlio has obtained judgment for his debt, and has done liisbest to obtain payment by executing that judgment against tie members for the time being, is, it seems, entitled to [TOceed against former members, even without realising his [raortgiige(/). On the other hand, the Court will refuse a cieilitor leave to proceed against a late member where there is reajnn to believe that satisfaction can be got with diligence Iran existhig members (/l) ; and a return of nulhi bond to a [wiitof /('./((. issued against the public officer, together with a 1 se iididavit as to the insolvency of the members for the time Iniii'i. will nut of itself be sufficient to satisfy the Court that fayiiieiit from them canrot be obtained (0- With respect to late members, the act, as has been seen, Classes of former [iKikts three classes of them liable, and renders it lawful for ""''"''"■'• jtlie creditor to proceed against any or all of them, not con- .p him to one class before having recourse to another (m). i) D'iljm. V. Scott, 2 Ex. 457. \l Hmaj V. Unit, 1 1 Q. T5. !)2 ; p'Mv..l/affe„;iV, 4(.'. ]•). 70.'). i'')fi'.W V, Martnuc, 4 (.'. B. pi i'- 4 C, I!. 725. Tlie luort- ? ill t'liat ciLsc! cnuM not lie *^;»1 at once without great lof-.-;. ;'lfiir% V. Law, 12 A. & E. 802. See, too. Cross v. Laic, G M. & W. 217. (/) ]j(tnk of England v. Johnson, 3 Ex. 508. {ill) A rule for a sci. fu. against a latu nicniher must bo served per- fioiially, (ir be shown to liavc rcaeiicd him, Esdailc v. Smith, 18 L. J. Ex. 120. I 28§ KXKCUTIOX ACrAINST h;iIAliKll()LI>KliS Bk. 11. Chap. 7. The liability of late membeis is, in some respects, iiidie e\- Sect. 3. . ■ . , , ■ tensive than the liability of retiretl partners at con; .'on Ian- inasmuch as these last are not liable to Ije sued iu respect of debts contracted before they became members. Ihit, on tlie other hand, the statute limits tl:e duration of a luto nieiiil/er\ r ability to creditors to three .years after retirement (»). Mtiv- over, there is one class of late members who cannot be pro- ceeded against by one class of their former creditors at nil, viz., those members who did not become such until after the creditors' debts had arisen, and who had ceased to benienilii-ij before judgment obtained against the public oiRcer. AVliL'thtv the omission of all members of this class to creditors of this class was designed or accidental is not known ; but beiii!; omitted, their freedom from liability towards sucli creditors is complete (o). A creditor, being entitled to issue execution only ngniiL-i members for the time being, or, if necessary, against ccrtiiin classes of late members, must, before he can obtain leuve l> proceed against any particular person, adduce some cxnhm to show either that such person is a member for tlie time being, or that he was a member at the time when tlie eontnitt with the creditor was entered into, or before the saiue wns executed, or at the time judgment was recovered (p). Fortius l)urpose recourse is usually had to the memorial of sliiiit- holders, directed to be returned to the Stamp Offii'c, wLicli is held to be sufficient if uncontradicted, even althc ugh it nay be in some respects informal (q) or inaccurate as icgaras the name of the shareholder proceeded against (r). The memorial Evidence of meiiibership. (/i) This limitation applies only to cvfditors, and doe.s not prevent a late, .sluuvholder from being a contribu- tory, althongli throe year.-; may havu L'lap.sed. since Im retired from the ii'mjiany. Goutlni-aites case, 3 Me. & G. 187. (o) See Ihdfjson v. Scott, 2 E.\. 457, and Ilarveij v. Scott, 11 Q. B. i}2. (p) In The IJcvnk of Kwjiand v. Johnson, 3 E.x. riDR, tlie .'ourt let a sci, fit. issue ayiiin.st a person altliOUp^ii liere was stroii;.,' cviJiiiH j a^aii'St his having Ijuea a iiK'inlni'i; the time r.'.leged, ((/) See Ex parte Pnseotl, iUi i Ch. Gil; Harvey v. Scott.lKi.l 92 ; Firbl v. Mackcnde, 4 C. B. :03 j and 717 ; BoMmjiict v. Shrlrik, 4 Ex. 099. Compare Frmtt v rinfeni, 1 C. B. A\, antiW-UO. ()•) ClinnSV. Bntlrll. ll.M.^^^^' 461, decided on a private act. Srfj tiio, Thompson v. lldnlimj, 1 C. I^.j N. S. 555. f.vuKn Tin: IjEttkes rAxiiXT act. i>H!) U not, however, conclusive, nor is it tho onlv evidence of ^'^- li- t!iinp. 7. . ' Sect. 3. i:iembt'i'slii]) ; ami it lias been decided that a person whose immc is omitted from the last return may nevertheless be proved, aUandc, to have been a shareholder when the return was made, and that, if there is a dispute as to the fact of meni- k'lsliip, proper steps must be taken in o)der to have that i|iiestiou tried (s). Asbetwi' ,1 creditor and an alleged shareliolder, tlie ques- Effect of non- . coiii]i'iaiioo with lauiberslup or no membership depends entirely upon luciui-ite for- wliether the requisites, which, by the company's deed, have "'^ '"'^^''' to be complied with before a person becomes a member, have bi'on complied witli or not ; and it may happen that one and tlie sume per:5on is not a member for tlir purpose of beiiij^' lU'ocMled against by a sri. Ja., although he may be a member tor tile purpo-r ■>" being made a contributory on the winding upoftlie cor. i'ur'; ••;. 1 / I') EjiCnUoii wjaind memhers of fO)i\ panics governed hij fhc LdUrs Patott act. The Letters Patent act (7 Wm. 4 e^' 1 Yict. c. 73) does not Exeoution ,,,.„, „ 11-1 agiiiiiist imblic I rerjuire the pubuc onicers or a company governed b- it to be officer umler i members of tlie company ; and even if they are meml ers their ^ y|"[' ^ '^-g iiliilities lire restricted to the extent spccilied in the letters pattiit of their respective companies. These circuinstancos ftluiie, it is conceived, render it improper for a creditor to issue I execution against a public officer of a compan}' governed by jtlie Letters Patent act without an order of a court or judge (/() jorasci./d. ; for it is clear from the act that he cannot be made Ipersoually liable unless he is or has been a member, and in Incither case is he liable to the extent to which he would be lliable at common law. Tlie act iu question appears to empower a creditor who has Liiihility of lobtained judgment against the public officer of a eomi)any Muh^rT Wui 4 loveniedby it, to execute that jiulgnient against all or any of '^ ' ^'''*- "• '■^• i^"itl; uf E„ijlnnd V. Johnsuu, l^- 'JJ^ ; I'imutt V. niitllnj, 1 C. 1.41 i" !^^' (iiilc, p. 5 J, nii.l A■t^•.,■ V, ';'", 3 Eit, 8U5; A'tis v. Anii- L.C, stronj, 4 ib. :'l ; Pximnnud v. Short- ridge, ib. 099, there cited. See, loo, Ihdgson V. IMI, 5 Ex. 907. (n) Under U.S.C. Ord. xiii., r. 23, ante, p. 281. U 290 EXECUTION AGAINST SlIAItKIIOI.DKltS r.VDEPv TI III <^ ]5k. II. Cliap. 7. the sliareliolders, or late shareholders whom he nii<4lit \m;_. sued for i)aymeiit at common law ; the only qualifi(.iUi(ins heing : 1, that a shareholder who transfers his shares m\- tinues a shareholder for all purposes of liability until the transfer has been registered; and 2, that the extent of a shareholder's liability is limited or unlimited, aceordinf tn the letters patent granted to the company (./). This act lia> not received any judicial interpretation throwing light upon the liabilities imposed by it, and it is by no means clear, that the liability of an incoming shareholder is not moiv extensive than the ordinary liability of an incoming paitnor. The names of the shareholders can be ascertained IVom tlif returns made under the act(//). Umler 8 & 9 Viet. c. l(i, creditor imi.st first go againtt the comiiany ; Ni^^' c) Execution uijaiast n mlurs of companicK governed lnj 8 .itisfy the Court 111' lias made reas ooiiipany, and to -iitisfaction, and ■\- mere general r ,«'• /'(. have been '"'//« Ijonu, is not i assertion that no i ■ill' company has j lifm made to disc fhiitless, and a wrii "'"I l^een reiurned is slioH-n affirmativ f^euif theconipanj ' tw«itioii, still, if t] '■'"f to satisfy tlie ''Si'e execution wil I r. 23(c). %t!ie Compani Covered against a ["'fltfessary, be ex( p"' "0 sharelioldcr p'"«'"'t unpaid up of h«f from the con,pa,n, r • '"t if it does, the r'MOC B. i,io, a '' S11EX.JJ3. 'km V. n,. , P'Wmi.i V, n,, A- n '(( / 7. UXDKR THE COMPANIES CLAUSES CON'SOLIPATION ACT. 291 of the company ever paying him : all that the Court Kk- H. Chap. 7 Sect. 3. iviiiiires is to be satisfied that the creditor applying for leave -- to proceed agninst the shareholder has no means of obtaining m'aeui pftymcnt except from them individual!}'. In order to fiitisfv the Court upon this head, the creditor must prove that he has made reasonable attempts to obtain payment from the ojiiipany, and to discover assets itrcsently available for his -atisfaction, and tliat siicli attempts have been unsuccessful. A mere general assertion by a solicitor's clerk that writs of i in. luive been issued against the companj"^ and returned iiii/((( homi, is not sufficient ; for it is consistent with such an assertion that no attempt has been nuidc to ascertain whether tlio company has any assets or not (a). But if attempts have lieeii made to discover assets, and those attempts have been fniilless, and a writ of ft. /a. has issued against the company and been velarned nulla bona, that will be sufficient until it is shown affninatively that the company has assets (6) ; and even if the company has assets which liave not been taken in execution, still, if the Court is satisfied that they are insuffi- cient to satisfy the plaintifi', the sci. fa. will go, or leave to issue execution will be given under 11. S. C. Urd. XLIl., r,23(.'). By the Companies' clauses consolidation act, a judgment Liaijility of ' Wuvcrecl against a company to which sacli act applies, may, If^aev 8 & 9 if necessary, be executed against any of the sl'.aruholders- ^'°*- "^^ ^'^• But uo shareholder is liable to a greater extent than the jamount unpaid up of his shares in the company (d). lUjot fnim the company, Hitchins Y'^i-: nhnnii i'('>l- <-'0; 15 C. B. 1*9 ; lint if it iloes, the averment payW traversed, Marmi v. Lum), l^'.B.3W. i^iiG NiMH V. BrowH- p.llI,iX.405. ;'. Set: llitduKs v. The Kilkenny p«!.'-o, lOC B. KiO, and 15 (7/. f'-r.Kin.jv. The Vannlal Endoir- ' '■■>; 11 Ex. 443. 'kdd(k V. The IkrbyMrc '^'«-,«Ex, 149; Niron v. Tlie H'ni»jMl.V<,., I II. >& N. 47; pm V. Th. Kilb:iinii A'((i7. L'n., FB.459; mjailv. Thelhtnnth Hail. Co., 2 C. B. N. S. UO ; RiJg- ivmj V. The Sieurily, ctr., Ai. B. 47 ; Cued v. H\iree. ill i'tjuity without a sei./n. 7f t*/f_i/ v. Chichester and Midhni-Kt L'liil, Co., 9 Eq. 148. (/i) See as to the (liscntion of tlif Court, Shrimpton v. Sidmoidh i'm'' Co., L. E. 3 C. P. 80 ; Lee v. Bd. d:c., Rail. Co., L. R. 6 C. P. b'S; Burke v. Dublin Trunk Ruil 0).. L. R. 3 Q. B. 47. However, i.i liv^ v. JForcester Rail, n,., L. E. 4 C P !), tlie t'ourt alldweii a sci. /((. to ,'" ultlii«tl>tU tlie citne was clear. (i) fhirke v. Ihihlin Tnnu.. .Iv., i''(i7. Co., L. R. .'Ul 11.47. (k) Ante, \\ 104. {I) 8&9 Vict. c. It, ^ 36. A'.v.j The Derhyshire, <£r., Ml. 0' • -^ U & B. 784 ; Mtnda- v. hk ■ ■'¥] Fei-r^ tV, ■* W. U. 750. wItKii -In*'] llkM a luofribuius is not iieciSNiry. WSee8&9Viot. c, EXECUTION AGAINST SlIAREnoLl>ERS. 293 donee to the eontmiy, btifilcieut proof that a person whoso ^'k. II. cimp. 7. name is on it is a sharoliolder {/»)• I^^t the register is not conclusive evidence, and leave to issue a sci. fa. (or, it is ijiesumod, execution, under 11. S. C. Ord. XLlI.r. 23) against a iieison who is on it will not ho given if he can show that he is not a shareholder (?)). Neither is the register the only CA'idence that II peisoii is a shareholder ; and a person made a member of the wnipany by its special act, may be proceeded against accord- iiiijlv, although no shares have been issued (o), unless he is to be rcnmled as having' ceased to be a member (jO- In a case where a creditor was prevented from seeing the register, a sci. td, was allowed to issue against a person sworn to be a share- hiililer to the belief of the deponent, and which belief was founded on information from officials conriected with the company {q). (1) K.cecHtioii (Kjninst members of other companies. Companies empowered b}' special acts to sue and be sued, Li.ibility of !•! Tiii> Ti CI sliareliol lers and tlie shareholders ui which are liable lor the debts oi the in oth. r com- companies, will generally be found to resemble companies P-'""^'- governed by 7 Geo. 4, c. 4fi (/•). Execution against partners or shareholders under judgments obtained against them in the name of their tirm or company, is governeil by E. S. C. Ord. XLII., r. 10, as to which see Part., Bk, IL, 0. 3, § 3, p. 298 ct seq. Unregistered cost-book mining companies are partnerships. Cost-book and shareholders in them may be proceeded against ac- cordingly (s). But by the Stannaries act, 1887 (50 & 51 Yict. companies. '«)Soe8&9Vi.t. c. 10, §§ Sand In) Edimhls v. Kilkenny Kail. Co., Ul'.B.N. S. 5'i(i; Matlur V. ^\ll. .\m!.hmiitn>n>t Sue, ib. 67(). {") Portal V. Emmens, 1 C. P. D. 2"! ,intl«R4,((ii /(•,!). 104. I Ki})U\(j V. TdJ, 3 C. P. D. ;3r)0. ",) Mrid: v. The Derbyshire, dc., Kml. Co.,9 Ex. 14S). See a7ite, p. jl04((sei^. ;) See Clowes v. Brettcll, 10 JI. k "W. .■)0(5 ; JriiKiJleld V. Barton, 7 Jur. 2.")H ; U'iiujIiM V. Peel, 13 L. J. N. S. (I J3. 102 ; and as to friendly sccielies, Myers v. Hanson, 5 II. & N. !)il. The 17 v't 18 Vict. c. 2.j, on wliich the last case turned, was re- ]ie;ded by 25 & 2G Vict. c. 87 (since lepcided by 39 >& 40 \'ict. c. 45, § 4). (.s') Lanyoii v. Umith, 3 Best & Sill. 935) Tri'iiwcn v. Bourne, (i M. & \\ . 4»ii . Xeu-ton v. Daly, 1 Fu.s. & Fin itt ; Fed v, Thomas, 1.' C 294 EXECUTION AGAINST MIAUKHOLDEIIS. Bk. II. ciiap. 7. c. 48), § G, in tlie case of execution ngainst any comiianv to fecct, 3. , t • • 1 rt ^ whicli the act applies, the .shentF is to levy sufficient to piiv all wages due at the date of the levy in addition to the jiulgment debt, and such wages are payable in priority to the judgmciii debt. Shareholders in companies governed by the Companies net, 1862, are not liable to execution on judgments against \\w company, but must be proceeded against under the winding-up clauses, which will be examined hereafter (/). The law respecting execution against members of conipanios governed by the repealed acts of 7 Sc 8 Vict. cc. 110 and 113, is now obsolete, and is therefore omitted («)• Companifis governed l)y act of 13G2. m Necessity of set. fa. Sci. fa. under 7 Geo. 4, c. 46, and 8 & 9 Vict. 0. 16. Under 7 Wm. 4 & 1 Vict. c. 73. Under 7 & 8 Vict. cc. 110 and 113. Note 0)1 procedure by Scire facias. In those cases in which a judgnieiit a|j;ainst a company or a public offitcr was sought to he enforced again.it a shareholder, a scire facin.f was a nccis- .«iiry preliminary, unless there was some statutory enactment to tlic contrary (r), and a provision that execution should not issue without Itavo obtained by motion in open court, was not sufficient to t, couiil not lie jdeadcd in aliatement ; and if one m-i, fit. IssikiI again.st several nliareliolderH, u declaration njion it against some (iftlRiiiuniv was not Lad on demurrer, even if it were irregulav(i). Neither is it any olijection to a Hci. fa. hy a creditor against a shareliolder that otlicr crcililors are suing him or are in a position to issue e.xccution against ]iitn(Hi); although when he has paid the full amount to which he is liahlc, no oiliur creditor can extract more from him(/(). Aiiplications for A rule for a nci. fa., or an apijlication for leave to is.sue execution (in tiio* rule for si-i, fy the same creditor against the same sharelinMcr fur tli.' same delit, if the same ride or application has been allowed to Jrop iurai.y satisfactory reason, or has been refused upon some technical ground wiiid has been removed. At the same time the maxim, vemo (hint liU cmiri im caiUm rauna, is aiiplicable, unless some good reason to the contrary can bt shown (o). Sci. fa. after A judgment against a company, the sliareliolders of which are lialiio td elegit. execution on the judgment, may be executed against them, altlioiigh tlie creditor has issued an cleyit against the company, and has obtained partial satisfaction by an extent under the writ (p). The extent does not, in tlie-r cases, satisfy the debt. If ihe cieditor has received nothing from the exttiit, he is entitled to execution for his whole demand ; and if he has obtained any fruits from the extent, he is still entitled to execution for so much as remains due (5). If the land extended is of small value compared with what is due to the creditor, he is entitled to executiou against the shareholders witiioui delay ; liut il' the land is of such a value that the creditor will in a short time be able to obtain payment witliout having recourse to the shareholders. (i) See liiijhij v. Dahlin Trunk Eail. Co., L. E.'2 C. P. 586 ; Nixon V. Brownlow, 1 H. & N. 405 ; Nunn V. Lovicr, 3 Ex. 471. Compare Esdaile v. Trustwell, 2 Ex. 312, and Esdailc v. Lund, 12 M. & W. 607. (k) Eurmester v. Grofton, 3 Ex. 397. {I) Fowler V. Richerhy, 2 Man. & Gr. 760, decided on 7 Geo. 4, c. 46. See the argument in Esdaile v. Lund, 12 M. & W. 607. (1?)) Riyhy v. Dublin Trunk Rail. Co., L. R. 2 C. P. 586. (h) Burke v. Dublin Trunk Bail. Co.. L n. .3 O. B. 47. (0) See upon tliis, Conhr v. M'. Universal Ga, Light Co.,6 C. U. 19ii and 554 j Field v. MadoKie, ib. 384 ; Dodgson v. Scott, 2 Ex. 457. Edwards v. Cameron's, dc, Bail Co., 15 Jur. 470, Ex., is a stroni: authority for not allowing two a})plications. (p) Addison V. Tate,U Ex. 250, R. V. TJie Derbyshire Eail. Co., 3 E. & B. 784, (q) See Addison v. Tate, 11 Ex. 250, from which it appears that the sci. fa. should state what lias been done under the elegit, and tlif amount if anv obtained by it. ntorEDi'RK nv scinr, facias. 297 the Court will iint, ns a matter of courise, let imnicJiato execution againut Ilk. It. Cli.ip. 7. them 1.0 issue! (r). „.Jl!!!li__ Kxccpt wilt IV judgment lins Loini olitained liy fraud, the validity of a v,iii,ijty of judg. iul'mcnt which has lieen recovered against a eoiiiiiany or its jmMic ollicer, tiient cannot lo cannot be inipeaulied by a sliarehidder wlio is ]iroceedfd agaiuHt by sct./u. ^^J^^^y'"""' "^ I'lr, ixccjitiiig ill cases of fraud, notliiug is adiuissible as a defence to a sci./n. which might have been relied on as a di'fence to llie aetion on the judgment ill wliicli the fci. /". issue.s(.s). The judgment is eonelusive, and nothing mil he set up as a defence to a wi. fii. upon it, except .some matter which is nin>istiiit with the validity of the judgment itself (/). L'lion the same principle it .seems that if judgnu'nt i.s (d)tained against a Uradlcy v. Eyre. ]ii.ii)ii .-iiU'il as n jaiblic ollicer, a .shundudder cannot plead a.s a defence to a ,1. /■.(., that the |iersiiii against whom the judgment has been cditained was lint the representative of the company (»)• J'» »"(^h a case application -hoiikl be made to set aside the judgment (.'). (i) See Aihlimi V. Tate, 11 E.x. (») See r,mdlcy v. Eyre, 11 M. & 2,Vi. \V. 432 ; Fowler v. liickerhy, 2 JIan. (.<) See per Lord Mansfield in & Gr. 7G0. Omk V. Jones, Cowp. 727. (,'•) Ibid., and Dosanquet v. Gra- (t) See the cases noticed, ante, Judh, 7 Jur. 832, and 6 Q. B. 601, 1^ -283. note. IMAGE EVALUATION TEST TARGET (MT-S) ^ 1.0 !.l '1.25 2.2 *^ 1^ III 2.0 1.8 U ill 1.6 III A" V] VW > ■7 V] 7 .<^ Photographic Sciences Corporation 23 WEST MAIN STRECT WEBSTER, N.Y. 14580 (716) 872-4S03 :/- ^ ^ mii -,•1 • ■ 298 Bk. III. Chap. 1 Sect. 1. lO : MANAGKMKNT OF COMPANIES. BOOK III. OF THE RIGHTS AND OBLIGATIONS OF MEMBERS OF COMPANIES BETWEEN THEMSELVES. CHAPTEE I. OF THE RIGHT TO TAKE TART AFFAIRS OF . I'HE MANAGEMENT OF THE Cf^nPANY. One of the peculiai'ities of companies, ns distinguished from • pailnerships, is that the management of a company's busiii('>s is entinisted to a few chosen individuals, and that tlie sliaiv- holders are deprived of tnat right of personal interfcreiuc which is enjoyed by the members of ordinary firms {a). The members of companies form two bodies, whose i'.iterests mo or should be the same, but whose powers and functions are different ; the one body consists of the directors, in wliom tlif general powers of management are vested ; and the other botlv consists of the shareholders, to whom the directors are ac- countable, and by whom they are generally appointed. Encli of these bodies has its own sphere of action, Riid its own rights and duties, as will be seen more particularly hereafter. SECTION I.— OF DIRECTORS AND THEIR POWERS. Mmafing body. Where there is no statutory or other provision regulating the constitution and pow ers of the managing body, the majority of the shareholders of the company must determine I'ow its (a) See Burnesv. Pennell, 2 H. L. C. 520 and 521. DIRECTORS. 299 nfl'airs ftie to be conducted, and to whom, and under what ^•^- "J- Cha].. i. restrictions, the management of those affairs shall be en- trusted CO- This is the rule which prevails in cost-book mining companies (<•), and it is not easy to conceive what, except the will of the majority, can determine a matter of this description under the circumstances now supposed. The number of persons composing the managing body of a Numher of company is generally fixed by the company's special act, darter, deed of settlement, or regulations, and the number making a quorum is also usually thereby fixed. As a general rule, a power entrusted to a given number of individuals cannot be properly exercised by any less number ; and there are several eases in which this rule has been applied to companies, and in which the acts of directors have been held invalid on the ground that they were not done by the requisite number of directors (d). But it does not therefore follow that Vaoing the the number of directors, as originally fixed, cannot be altered by tlie majority of a meeting of the shareholders ; and where the number is not fixed by the legislature or the Crown, it seems that the shareholders may alter it {<•), Even where the number is fixed by an act of Parliament or a charter, the act or charter may be so worded as to be in this respect directory only (;■). It is to be observed that the directors of a company are all Who are . " ilirectore. those persons who are constituted directors bj* a company s act, charter, or deed of settlement, and not only such of them as choose to act. Sometimes provision is made for the transaction of business Persons deemed by persons who are to be deemed to be directors until directors are appointed. Such a provision does not necessarily make juch persons directors for all purposes ; and a clause to the [h) Agreements by directors de- priving the shareholders of this power are invalid, James v. Eve, L. R. 6 U. L. 335. The powers of majorities will be examined here- after. (f) See Tapping on the Cost- Rwk, p. 64. A See iDitf, p. 155 ; and as to the power of directors to delegate their authority, see p. 15G. (e) Smith v. Gokhnorthj, 4 Q. B. 430. (/) Thames Haven, Dock, oiutiiiuiit.4< Bk. III. Cli«i). 1. effect that two tli.'ectors s]iall be a quorum lias beou liuld wa to apply to persons who were to be deemed to be directors (f/i. So tt cdause as to llie qualification of directors has bten held not to apply tt> similar persons (A). Generally speakin*:, the members of the managing body niv rctjiiired to p(»ssess certain qualifications, and to be aiipointtil in some prescribed maimer (/). But it by no means follows that persons who are in fact acting as duly qualified directors will be prevented from doing so, simply because tht-y haw been irregularly appointed (A.). Still less does it follow that the irregularity of their appointment will render all tlu'ir acts null and void. Persons dealing with them as directors him fide, and without notice of the irregularity, are entitled to treat them as the agents of the company, and to hold tlte company bound by their acts, as if they were its duly aiipoiiited directors (/). But, as between themselves and the shai-e- holders, the irregularity s jf greater importance ; and it has been held that pereons dc facto, but not de jun, directors cannot allot shares, make valid calls or forfeit shares, even Avhere there is a provision rendering valid what may be done by persons acting as directors, notwithstanding the subsequent discovery of a defect in their appointment {in). (). It has not yet been decided whetlier when there is no such express power there is an implied power in the shareholders of a company to remove a director from his office b}' a resolution duly passed at a meeting properly convened for the pmi>ose, but the better opinion seems to be thaf there is (c). If, however, a director is appointed for a definite period, he cannot be removed before that period has expired unless there is some special provision to that eftect(rf}. Where the shareholders have power to remove a director for "any reasonable cause," the shareholders are themselves the judges as to what is and what is not a reasonable cause fur removal ; and their decision will not be interfered with if they act fairly and in good faith (e). (rt) Phelps V. Lyie, 10 A. & E. 113. (j-) lb., and see tnUon v. Wilson^ 6 Scott, 540. (i/) Alunster v. Cammell Co., 21 Ch. D. 183. (z) See Xeirhactii Local Board v. Xewhaven lichool Board, 30 Ch. D. 360. (fir) As iu York Tramways Co. v, jnUoirs, 8 Q. B. D. «85. (b) There is ])o\ver to remove under the Conipunies' clauses act, 1845. See Isle uf U 'ujht IMl. Co. v. Tuhounliu, 25 Ch. I). 320. (c) See Browne v. La Trinukd, 37 Ch, D. 1, and the last ca.se. (rf) Imperial Hytlroj)athic Ihttl Co. V. Hampson, 23 Ch. D. 1. Compare the lost note. («) Inderwkk v. tinell, 2 Mc, & 0. 210. Sec as to becoming,' bankrupt, POWr.US 01' SIIARi:iIOIiDE,lS. 80» Remuneration o( (iirectora. Directors have no power to vote themselves fees for salaries Bk. III. Chap. l. Sect. 2. for their services heyond what the constitution of the company may provide (/). The powers of directors as agents of the company have been already examined (Bk. II. c. 2 & 8) : their powers to call meetings, allot shares, make calls, forfeit shares, will be noticed hereafter when treating of those subjects. SECTION II. -OF SHAREHOLDERS AND THEIR POWERS. The shareholders of a company cannot usually exercise any control over tho management of its ailairs, except at meetings duly convened ; for the directors of a company are the servf nts, not of tlie individual shareholders, but of the company ; and where the nianngement of the directors is complained of, an aggi'ieved shareholder should seek redress through the company, and induce it to call the directors to account (jf). As will, however, be seen hereafter, if the directors are doing that which the shareholders cannot sanction, or that which they liave by a proper resolution forbidden, the dissentients may obtain redress by legal proceedings (/<). It may, however, happen that the constitution of a company is such that the shareholders are deprived of all control over the managing body in matters not foreign to the objects of the company. Where this is the case, the managers have it in tlieu- power to disregard the wishes of the shareholders as to all such matters (?'). I'hdps V. Liilr, 10 A. & E. 113; iibscunding from creditors, Wilson V, Wihnn, 6 Scott, 540. See the (usi's as to expelling; members of ^lulis, Hawkins v. Antrohns, 17 Cli. 1). 61-) ; FuHier v. Keaue, 11 ib. 353; Lilmu-hfre v. iniarndiffe, 13 ib. 34G ; iind as to removing persons frniu (iflices, Osgood v. Nelson, L. 11. ■> 11. L. (i3(; ; Jkwi V. Iknnett, (! Ch. 489 ; Haijman v. Gov. of Rugby School, 18 Eq. 28. (/) See Evans v. Coventry, 8 De G. Mc. & G. 835, decree, clause 3. See infra, ch. 2, § 3. (g) See Orr v. Glasgow Sail. Co., 3 McQu. 709. (/i) See infra, ch. 9, § 2. (i) Spttrgin v. indk; 2 Gifl". 473, is an instunce. I :i 804 MANAGEMENT OF COMPANIES. Bk. III. Ohnp. 1, Sect 2. Ueetings of ■hAreholdera. ■i Interference of court witli meetings. Individual shareholders, being comparatively poworkss, pro- vision is generally mad a for bringing them together at meet- ings, and it is not a little important that the right to convene them should to some extent, at all events, be exercisable l)y the shareholders themselves. If matters are in such a state tlint nothing can be done without a meeting, and there is no express power to call one, it would seem necessary to imply u power in any shareholder to convene one. This, however, is a c«se which can seldom happen. It more commonly happens that there is a power to convene a meeting, but that those who have the power will not exercise it. In cases of this kind it hns been held that, where those who have the riglit to cnll a. meeting of the shareholders refuse to exercise that right, for the express purpose of preventing the shareholders from (hilv assembling, the Court will, if necessary, interfere to protect the shareholders against an abuse of power on the part of those entrusted with tlie management of the affairs of the company (k). So where directors give notice that a meeting will bo lield on a day when they know that a large number of shareholders will not be in a position to vote, the Court will interfere and restrain such an abuse of power (/). Again, if directors con- vene a meeting to pass resolutions favourable to themselves on questions in which the interests of the directors are opposed to those of the shareholders, by a circular which is misleading, and which contains statements calculated to obtain proxies in their favour without giving the shareholders the information necessary to enable them to form a just judgment as to who are the proper persons to whom to entrust their votes, the Court will grant an injunction to restrain the holding of the meeting or to restrain the directors from laying such resolutions before the meeting (»»)• The Court, however, is very reluctant to interfere with the holding of meetings of shareholders, especially when they are called for the purpose of investigating and controlling the con- duct of the managing body ; and the Court will not interfere to restrain such a meeting simply because the notice convening it (*) Fo8g v. Harbottle, 2 Ha. 461 ; Isle of ff^ight Hail. Co. v. Tahourdin, 26 Cij. D. 321). (0 Cannon v. Trask, 20 Eq. 669, (»rt) Jackson v. Muii-itiir I>ank,\i L. R. Ir. 118. MUETIX), and there must iihvftvsbe two at least (p) ; that the resolution should relate to II iniitter upon which the meeting is competent to pass a reso- Intiim ; and that the resolution should be duly passed. In order that a meeting may be duly convened, it is necessary that it be convened (1) by those who have a right to convene it, (2) at a proper time, (3) at a proper place, and (4) by a proper notice. The persons entitled to convene a meeting have been Persons to 1 • • 1 111 conveno. alluded to already ; and it is only necessary to add that a meeting convened by the proper persons will not be incom- petent to transact business simply because they may themselves have been irregularly convened to consider whether a meeting shall be called or not (q). As regards time : where there is no express provision, a Time. reasonable time must be given (r) ; and perhaps if the time were unreasonably short and were made so purposely, the Court might restrain the holding of the meeting. But if a meeting is held, and no objection is taken to the shortness of the notice convening it, the Court will not interfere (a). Where tiie time for holding a meetiiijj is prescribed, such time must be observed; and there are instances in which resolutions of meetings have been held invalid on the ground that the meetings were not held at the proper times (t). In calculating the time for holding a meeting, where an W hie of mght Rail. Co. v. Ta- i'OmU'i, 25 Ch. D. 320. ('■') See IlowbcHch Coal Co. v. ^"W«c, 5 II. & N. 151, and other 'i*^ ante, pp. 157, 158. '/') 'iharp V. liHwes, 2 Q. B. D. 26. '1) Bmne v. La Trinidad, 37 Ch. 1). 1, L.C. (r) Browne v. La Trinidad, 37 Ch. D. 1. As to a meeting of directors, see Ex parte Smith, 39 Ch. D. 546. (it) Brotaie v. La Trinidad, 37 Ch. D. 1. (0 Railway Sleepers Supply Co., 29 Ch. D. 204. Compare Miller's Dale, d-c., Lime Co., 31 Ch. D. 211. 806 MANAOKMKXT OK COMPANIKS. riiice Notice of object of meeting. Ilk. in. clmi.. 1. iiitt'rvnl of not less than a certnin number of diiys i.s requimi to olupse between one meeting nnd anotJier, the rule is that the prescribed number of diiys must be clear days, i.e., ex- clusive of the days of the meetings («). As regards place : where no place is prescribed, it is con- ceived that any reasonably convenient place of nioetin<; may lie lixed. Hut the Court would probably interfere if a place wew purposely lixed at which it was known shareholders could not attend. A meeting is not duly convened unless every person entitled to attend has notice not only of the time and place at wliid). but also of the purposes for which it is to be held, so that hi' moy exercise his own judgment whether he will attciul or not ; and there are ninnerous cases in which resolutions liavp been held invalid on the ground that insufficient notice wiis given of an intention to submit the matters to which thcv relatp to the meeting at which they were passed (.r). But n notice may be good in part and bad in part, and is not wholk invalid because it extends to something which cannot he done (,(/). A person who attends a meeting cannot dispute the validity of what is done on the ground that he had not due notice of the time and place at which the meeting was about to be lield ; and if all entitled to notice have it in fact, but not in the precise form in which it ought to have been given them, the proceedings of the meeting will not necessarily be invalid (J). But still it is absolutely requisite for the protection of those lieuni roust have ^yho are to be affected by the resolutions of other.s, that sucli of k'iiig hcanl. resolutions shall have no effect unless all entitled to ii voice in making them had an opportunity of expressing tiieir views. In a case where directors were empowered to meet once a week at their office, without notice or summons, but on such clay ami at such hour as they should from time to time agree upon, it was held that u resolution come to by a quorum assemhled Every one entitled to lio (a) lb. {x) A k-adini; cas^e on tliis lioail is BiiilpDrl Old Tlreviry Co., i Cli. 191. Sci- also Hiinien Gully Co, v. McLister, 1 Api.. Ca. 39. (i/) Clei'V.Fina-'rui Coiyom/.V.'i, 10 Eq. 363 i Ide of UVy/i/ R«''l^"- V. Tahourdin, 25 Ch. D. 320. (;) See British Suijur MniniiO.': 3 K. & J. 408. MEKTINGS OF SirAHr.IIOI.DEnS. 807 without notioi' wiis iiivnlid, innsimicli as iu» day or hour for the Bk. III. Chap. l. Sect. 2. mt'ftiiif; of thi' directors had ever been lixed (((). -- The niodf in which notice is to be given varies with ahnost Mo. MM, and see Xorth-U'eal Traniiportd- tm Vo. V. lie,ill,j, 12 Ai.p. Ca. 08'.), iiotici'il i:tifiii, il'] Ilniihritch CimI Co. V. Tcaijue, '<\\.k N. Ic')! ; Sliiii'ii V. /'((irci, 2 t>. 11. 1). 2(i. ('/) See Kllinll v. liiihanlmn, L. 1!. C. P. 714, wlmre tlie a^reeiiieiit «a,s lifld ille^'al iia opiiosed to the '■'ini|iaiiii's act, 1862. See, further, ^'iffittl V. Fiiiijiiharson, 2 Bro. V. C 338; Car.f \. Hope, 2 B. & Cr. 661. •ompare liollon v. Madden, L. It. 9 ^- B. 55, where an agreement be- tween two subscribers to a charity to vote for each other's nominees, was heUl not to be illegal. (»•) Kiiit Punt l)u Mininij Co. v. Merryweather, 2 Hem. & M. 254. See, also, Meiiier v. Hooper's Tele- ijiaph Jrorh, 9 Ch. ;150. Compare Atu'ool V. Merrijn-eathei; 5 E4. 46-1, note, nn.l .see 8 & !) Vict. c. 16, §§ 85 ami 86, and the Companies ct, 1862, Talde A, No. .')", un to votes by directors on matters in which they are interestjd. {m) Xorth-U'i,it Transportation t'o. V. Jkutty, 12 App. Cii. 589, where the director liad bought up shares to secure a majority. (0 See Grant on Corporations, 256, note (q) ; Com. Dig. Franchise, F. 11. i 810 MAN'AGKMENT Ol' » "MI'ANIKS. Bk III. ciiap. 1. the c). If the appcfintment autliorises tla- proxy to vote at more than one meeting, the proxy paper will require a ten shilling instead of a penny stamp (c). The ex- pense of stamping proxy papers ought to he home by those who want them and not by the company, unless there is some provision to that effect ((/). Every person who makes ui executes, or votes or attempts to vote by means of a votiuf: paper not duly stamped incurs a penalty of 50/., and his vot( is absolutely void {c). The right of a married woman or of her husband to vote i Husband iiml wife voting. Ill respect of shares held by her has not been judicially con- sidered. Speaking generally, however, and without refereiic( (m) Harhen v. riiillips, 23 Ch. D. 14 ; Indian Zocdone. Co., 26 Ch. D. 70. (.i) Indian Zoedone Co., 20 Ch. D. 70. (i/) Ej- parte Ducr, 13 Ch. D. 429, E.v parte Lancaster, 5 Cli. D. 911. (x) Ex parte Evans, 13 Ch. 1).'124. (i) 33 & 34 Vict. c. 97, § 3, and Schedule ; 34 Vict. c. 4. (ft) .33 & 34 Vict. c. 97, § 102, pi. 1. See, as to filling; up a jmper isi.nncd in blank, ^.i* parte Lanms^tvr, 5Ch. D. 911. ((■) 33 & 34 Vict. c. 97, § 3, anJ Schedule. As to stamps on proxii- under the older stamp 1 -vs, see /'. V. Ki'lk, 12 A. &E. 5r)9 ; Monmovih- shire Canal Co. v. Kendall, 4 1'. >^ Al. 453 ; Trinitij Hmise of Hull \. Beadle, 13 Q. B. 175. (d) Stnddert v. Grosvenor, 33 t'li. D. 528. («,') 33 & 34 Vict. c. 97, § lOf. pi. 3. MEia'INCiS OF sriAREKOr.DF.ns. 311 tc the recfulations of any particular company, it would seem i''^- HI. Chav. i. that it' tlio shares belong t(j her as part of her separate estate, her hushand has no right to vote in respect of them, and her vote is valid notwithstanding his disapproval thereof. But if the sliares do not form part of hei" separate estate, she alone cannot in point of law be a member in respect of them, and cannot therefore vote (./") ; nor is her husband entitled to vote in respect of such shares until he has become a member of the company in respect of them. Nor does it follow from the fact that he is subject to liabilities in respect of his wife's shares, that he is entitled to the privilege of voting in respect (if them. The right of a shareholder to demand a poll has not been Poll, decided : but the right would probably be held to exist unless the contrary could be shown (g). A person holding a proxy has no right to demand a poll on behalf of his principal (/<). The demand should be made immediately after the declaration of the .show of hands (i), and the poll may be taken at once without adjourning the meeting (k). Absentees cannot effectually urge their ignorance of what Alsentecs. took place at nkeetings which they might have attended had they thought proper so to do : and they are bound by the resolutions come to at a duly convened meeting, px'ovided such resolutions relate to matters upon which the meeting was competent to decide (/). Moreover, shareholders who receive reports of what takes place at meetings, and who do not object to what is being done, will be considered as acquiescing therein (/) See U. V. lliorulil, L. R. 7 Q. B.301. (;;) Sw ( iraiit on Corp. 203 ; 11. V. JriiiihlnJon Local Board, 8 Q. B. U. 450 ; Campbell v. Maund, 5 A. 1.^ K. 8(!5. If 110 j)oll is taken wlitn rifjlitfully demauded the elec- tion is void ; It. V. Cooper, L. R. 5 Q. B. 457. As to demanding a poll n a ijiieiitioii of adjournment, see ilmhwjall V. Gardiner, 1 Ch. D. 13. (/i) 11 V. UoveriDiient Stuck Inrcst- "'"i( Co., 3 Q. B. D. 442; Hnvcu IjoM Minimj Co., 20 Ch. D. 151, at p. 157. (0 li. v. Thomas, 11 Q. B. D. 282. {k) Chillinyton Iron Co., 23 Ch. D. 159 ; B. V. D'Oijbi, 12 Ad. & E. 139. Some dicta to the contrary iii Horbnry liridye Coal, ur., Co., 11 Ch. 1). 109, luu.st be considered as overruled. See also Jlritish Fla.r I'roduccrs Co., W. N. 1>S,S9, 7. (I) Phosphate of Lime f.'o. v. Cni n, L. R. 7 C. P. 43 ; Evans v. Small- combe, L. R. 3 H. L. 249 ; 'Tin- ([uand V. Marshall, 4 Ch. 376 ; Xor- virh Yarn Co., 22 Beav. 1C5. 312 MANAGEMENT OF COMPANIES. Minutes of meetings. ^^' Isl'f 2*''" ^" ^^ ''^^^^^ *^ ^^^^ might have been validly sanctioned \riiih(on Rail. Co. v. twdonril,, 2 Miui. & Gr. (575 ; hi'jUs V. Great Nnrthern Rail. Co., 1 MoQueen, 11-2. Si-o, also, Ronaj's "<',4 De (i. .T. & Sni. 420, wliich ^ i"Wj tliat those who sign minuter ave treated as admitting tlieir truth. And compare Tuthill's case, 1 Ch. 85. (q) Connmll Great Comolidated Mining Co. v. Bennett, 5 H. & N. 423. (r) See Lane's case, 1 De G. J. & Sra. 504 ; Grady's case, ib. 488 ; Stanhope's ccuse, 1 Ch. 161 ; Knight's case, 2 Ch. 321. (.<) Sec British Prorident Assur. Sor. V. Xorton, 3 N. R. 147, V.-C. K. (t) Mills v. British Provident As- siiruitee Society, 1 Fos. & Fin. 607.5 ] Mil 314 MANAGEMENT OK COMPANIES. lik. III. Chap. 1. them examined ami reported upon by competent persons Sect. 3. , . , , 1 ' ■ • - — This subject will be alluded to more in detail hereafter (»). It may, however, be observed generally, tliat a rij,'lit to in- spect includes a right to copy if the first is practicnlly useless without the second (x) ; and a shareholder who has a right to inspect need assign no reason for exercising such riglit, anil cannot be refused inspection on the ground tliat he desires it in order to oppose the directors or other shareholders (//). At the same time, the Court will not assist a sliaroholder in obtaining inspection for an improper purpose ; and the ri"lit must be exercised at reasonable times and in a rensonabli' manner (z). Disputes between shareholders. ■■I Acts which arc ultra rircs. PECTIOX III.— OF THE POWERS OF MAJORITIES. In the event of a difierence arising between shareholders, it becomes necessary to consider whetlier there is any method ot determining which of them is to give way to the (ttlior. It i^ not uncommonly supposed by the public, that the niinority of the shareholders, if they are unequally divided, must submit to the majority. But this is by no means the case ; for, ii» will be seen presentl}', the majority cannot oblige the niiuority excei)t within certain limits. As regards incoi'poi*ated companies, one limit is set by tlio doctrines of ultra rircs which have been already explained (u). That which the company cannot do, even with the consent of all the shareholders, it obviously cannot do at the biddiug of any majority, however large ; and any shardiolder can obtain the aid of the Court to prevent an act which is iiltni )i;(f, even although resolved upon by all the other shareholders [h). Ever}' company incorporated by act of Parliament, by charter, or b}' letters i>atent, or by registration, is govenuil by a law defining its objects and limiting its powers, and suoli (i() Infra, c. 3, § 4. (a;) Mutter v. East, d- Midlanl Hail. Co., as Cli. D. 92. (i/) II)., and .*ee HulUmd v. Dick- son, 37 Ch. D. 06!). (z) See the cases lust cited. («) Ante, p. 1C2. (fr) See infra, p. 31!) t( S((i. POWERS OF MAJOKITIKS. 816 law cannot be abroj^ated by any agreement between the niem- '"«-lp- Chai-. l. hers of the company however unanimous they may be (c). A lei'istin'ed company cannot alter the nature of its business as (Ittined in its memorandum of association (d) ; nor can even all the members of a chartered company do what they Uke with its property, c.f/., divide it amongst themselves without iKCounting for its value to the company (<') ; nor can even all the inenibfrs of a railway company apph' the funds of a com- » [laiiy to a purpose which is not authorised by the act of I'liilianiciit by which the company is governed (./'). On tlie other hand, it is to be observed, that a corporation l'"^yers of _ '■ majorities in nets by a majoiity : the will of the majority is the will of the the cases of corporation ; and whatever it is competent for the corporation to do can bo done by a majority of its members against the will of the minority, unless there is some expi'ess provision to the contrary (//). It follows fi'om this, that the power of a majority of the shareholders of a company incorporated by iliarter or act of Parliament, is limited only by that charter or act, unless the powers of the majority are specially i-estrieted ill some other way (/(). But the doctrines of iiltnt vires have no application to acts rnanimous resolved upon by all the members of an unincorporated iind uniuivileged company. Such a company, although .formed for one purpose, may, if all the members consent, depart from that purpose to any extent they all may please (i). There may be great difficulty in obtaining the assent of all ; and in practice it is often impossible to do so. It is seldom, if ever, inactically possible to apply to companies the recognised rule applicable to partnerships, viz., the rule that partners who (f) See Anhhunj Rail. Co. v. Riche, I. R. 7 H. L. (i33 ; Aft.-Gni. v. 'rVc((( /■;,(*?. A',(,7. Co., 5 App. Ca. (il) Ibid, and see iufni, [() Swivtij of I'mcdml Knowledge, V. Ahh>n. 2 Hear. 550. (/) See Att.-ilen, V. (ireiit East. /'mV. '')., )(?)i supra; and the cases ■ited iiifru, p. 317 <■< seq. (;/ See Ur.iiit on Corporal ions, !'• 68 ct ifq.; Australian Aujc. St. Clipper Co. V. Mouiifeij, 4 K. & J. 733; Exeter Rail. Co. v. Bnlhr, 5 Ka. Ca. 211. See also \\w, statute 33 Hen. 8, c. 27. (A) Even a special aj^reemont re- stricting powers expressly conferred by statute may be invalid, see Walker v. London Tramvnys Co., 12 Ch. D. 70.5. (i) See Keene's Exeai'or'.i ruse, 3 De G. M. & (}. 272. 310 MANAGEMKXT OF COMPANIES. Bk. III. Chap. 1. tleliberatelj do not ndliere to their partnership articles, are U ^ — ' be treated as liaving agreed to vary the articles in thos. respects in which the partners have not observed llipm (k). At the same time, if any members of a company, be tliry sliareholders or directors, choose to ignore the company's regulations, and not to observe the provisions contained in them, those individuals cannot afterwards object to the validity of a course of conduct adopted or acquiesced in by them on the ground that it is not warranted by the regulations ; but their adoption or acquiescence in no way affects the rights and obligations of the other shareholders, either inter se or as between them and the acquiescing parties. On this ground, the non-obsei"vance of pi'escribed formalities has over and over again been held to be of no consequence as between acquiescing shareholders, and yet to be fatal as between them and other non-assenting shareholders (0- Passing now to the consideration of what is to be done wlieiv questions arise as to which all the shareholders are not agreed, the first point to determine is, whether the act, charter, i»i deed of settlement, or regulations by which the company is governed, do or do not contain any express provision appli- cable to the matter in question ; for if they do, such provision ought to be obeyed (m). If they do not, then the nature of the ([uestion at issue must be examined ; for there is an important distinction between differences which relate to matters inci- dental to carrying on the legitimate business of a company, and differences which relate to matters with which it was never intended that the company should concern itself. With respect to the first class of differences, regard must be had to the state of things actually existing ; for, as a rule, il the shareholders are equally divided, those who forbid a How flispnte-i mil I liu stillt 1. Disputes nn matters arising in ordinary cour.-c of business. (Jt) rartii., 1). 408, and us to the dilliculty of applying this rule to coiu]>auies, see Ex jntrte Sargent, 17 Eij. 273 ; Keene's Executors' case, 'i De O. M. & a. 272. (/) Compare, for e-xample, Keeue's Executors' case, 3 De G. M. & G. 272, and Strajrou's Executors' case, 1 De G. M. & G. 576. See also lluMs case, G Ch. 24(i, and L. R. '■ H. L. 37. (m) The general oliii-ati'ia to ohserve the provisions nf coiniiaiii" deeds of settlement will be loun! well put in Ex jmrte Brovn, lH Beav. 97, and Laices's (We, 1 D"-' ^'' M. & G. 421. POWEnS OF MAJORITIES. 817 rliiinffe must Imve their wjiv : in re cnmmiini volior est CDiuUtlo '•''• If- <^'"»p- '• "" o ^ Sect. o. prohiheniin (n). If, hmvcvor, in a case of tliis description, - unitrovided for by previous ngreenicnt, the slinrelioldcrs are umjority io ,,,..11.1 • -i i • 1 ii • such uascii. luiequMllv divided, tiie mniont}' must give way to the majo- litv (ii). This doctrine lias been lieUl to apply where the iniijority wished to make a division of profits, without first imiii},' an outstanding debt (jj) ; where the majority wished to liiinow money (i a sliip, Abbott on Shipping, p. oS,e(], 12 ; and ns to cnipleciii)^ con- tracts alreu'iy ■'')'■ •',! i-'lo, But chart V. Dresser, i '•■■ •.-,'' 'k Q. 545. [o) See am'', («. Vj. and Gregory V. hikhiii, ,3.1 Br y^Z\ ; Const v. //'ir/iV T. & R. .,,u^ ; Robinson v. Tlwinpmi, 1 Vorn. 465. (p) i^tn-ens v. Tlie South Devon /'.III. Co., 9 Ha. 326, .and see Gre(jnry V. Pakhett, 33 Boav. 595. 7) Sol' Dnjon v. The Metro^wlitan >ilM Omnibus Co., 3 De G. & J. 123, atlirming S. C. 4 Jur. N. S. '!-'»; Australian Anxilianj Steam ''•')*"" '-'>■ V. Mounsey, 4 K. & J. (/•) Lord v. Governor and Co, of Ciypper Miners, 2 Ph. 740. (s) Simpson v. Westminster Palace Hotel Co., 2 De O. F. & J. 141. See, also, Forrest v. Manchester and Sheffield Hail. Co., 30 Beav. 40, and on appeal, 4 De G. F. & J. 126. (t) Kent v. Jackson, 14 Beav. 367, and 2 De G. M. & G. 49. (h) Kent v. Jackson, 2 De G. M. & G. 49, and 14 Beav. 367 ; Stupart v. Arroicsmith, 3 Sm. & G. 176. See aa to opening accounts ah'cady settled, Morgan's case, 1 Mac. & G. 235. (.>;) Att.-Gen. v. Great East. Rail. Co., 5 App. Cii. 47.3, and the ca. H. i X. 151 ; Ex jMrte Morrison, iJi; 0, 539. See, too, the cases cited ante, p. 305, et seq. («) Att.-Gen. v. Great Northern ^'■"i'. ''o., 1 Ur. &Sni. 154. ■f) See, too, Davies v. Havkinn, '■' M. ^^ S, 488 ; Fennim/s v. Cren- rille, 1 Taunt. 241 ; (Vassington v. Thwaifcs, 1 Sim. & Stu. 131. (g) Crow ^>n Partnersliip, App. 398, ed. 3. The ease is referred to at k'lijjth in Partn. 31G. See, also The Phoenix Life Instir. Co., 2 J. & IT. 441. C'oiiij)are Bath's case, 8 Cb. D. 334, where the original deed of .settlement authorised the addition of other business'^s. iVlO MANAGEMTAT OF COMI'ANIKS. I!k. III. Chiip. 1 Sect. 3. into a Miiriiiu Iiitiuraneo Company. NatiiHcli r. Irving. Const V. Ilaiiis. cijile on uIjIcIi ]>l'Utltfl siioulil be dealt with, Modern cases illustrative of tLese i>riiicii)les. Tlie itliiiiitifV was one of llie originjil subsciibcrs. In th.. summer of 18*21, tlie net of (5 (li'o. 1, proliibitin*,' ciiinpunii^ from cftiTying ci the business of marine insunincc, wm repealed, and short),; afterwards advertisements aiipcmed in the newspapers, stating that the eompany wouhl eonuiifiici' the business of marine insuranee. The phiintitl' olijcctcil lo this extension of the business of the company and \u> iiistitiit. d a suit to restrain it and obtained an injunetion. In Const V. Ihirris (h), the proprietors of Coveut (iiinKn Theatre agreed tliat the profits should be exclusiveh- appro- priated to eertnin definite i)urposes. Afterwards, Ihe pr,,. prietors of seven out of eight sliares, entered into an ii^'rcdiuni to apply the profits in a diflercnt manner, but tiny jiml nut eonsulted the owner of the other eighth share, and he distip- proved of the alteration. It was held by Lord J'lldoii, tlmt tin' majority had no pt)wer to depart from the terms of the orifiiiml agreement; and upon a bill filed by the one disseiitioit member for a specific performance of that agreement, a roccivcr of the profits was appointed. In a long and elaborate jiul^'- ment, Lord Eldon distinctly recognised the principle, that articles which had been agreed on to regulate the rights of the members c^f a company, cannot be altered without the consent of all the members (/). In modern cases the same principle has been constantly recognised and followed (A). Indeed it may be said never now to be disputed ; the contest always turning on the question, w hether the acts of the majority do or do not belong to the (lass under consideration, rather than to the question whether, if they do, the minority is or is not bound by them. With reference to the former question, it has been held not com- petent for a majority of shareholders in a company formed for the purpose of nniking a railway between two places, to n^ake a railway between two other places (/) ; nor for the (h) Turn. & R. 496. & G. 225; DavUson's ca.se, 4 K.&J. (i) See Turn. & R. 517, 523. The 688 ; Smith v. Gohtswortluj, 4 Q. B, judgments in thin and the preceding 430 ; JJuvies v. Hawkins, 3 M, &.S. cases are well worthy of attentive 488; A uld". Glasgow Jf'orliinijiltns 2>erusal. Buililimj Six:, 12 A])p. Ca. liJ"- (/,:) See Vw' y y tlie pro- pi'ilv ov fluids of the company otherwise than as contcniphited liv tlieinselvcs and the other members; (■.(/., hy dividing the capital amongst themselves {<>), or even amongst all the share- li(ililors whether they approve or not (p) ; by making presents to the directors (q) ', by paying the costs of actions, \c., insti- tuted by or against the directors as individuals, and not as trustees or agents of the company (r) ; by paying dividends or interest on shares or share warrants out of capital («) ; bj' npplying the funds of the company in defraying the expenses of an iipi)lication to Parliament to alter the constitution or (ilijeets of the company (0 ; or in the purchase of shares of M.Co.,7 Ha. 114, and 2 Mac. & (1. 38!) ; Himpmn v. Deimon, 10 Ha. 51. (m) Xuhifch V. Irving, ank, p. 31!); Phtmir Life Insur. Co., 2 J. & H, 441. In Uo(jers v. O.rfonl, dr., IMl Co., 2 Ue (}. & J. 662, the niiiway coiiiiPimy luul cxjiress power t" biciiuie a canal company also. \ii) Alt.-iH-n. V. Great Xortheni M. Co., 1 Dr. & Sn>. l.')4. Com- pare .t((.-(iV». V. (Irent Eai^tern Hail. I ' ., .■) App. Ca. 473. (•■) Meuier v. Huoju'r^i Telegraph '•., II Ch. 350 ; Griffith v. I'aijet, 5 eb. D. 894. [l') Holmes V. Keuxantlc, tCr., Aktioir Co., 1 Oil. D. 682. (y) York and North Mid. Rail. v. ilvilm, 16 Beav. 485. See, too, f^more v. Muv:att, 15 Jur. 238, V.-C. K. B. (r) See Htmhkrt v. Gronvenor, 33 Ch. D. m ; Hinith v. Duke of Man- c'^fer, 24 Ch. D. 611 ; Pickerimj v. %'/ieiiMii, 14 E(i. 322 ; Kernaghan !■■ "'((/iaiiis, 6 Eq. 228. (-•) Ltd) Estate, dx. , Co. v. Sliepherd, L.C. 36 Ch. 1). 787 ; O.rford Benefit Build- ing lioeiety, 35 Ch. D. 502 ; JJenham d- Co., 25 Ch. I). 752 ; Flitrmft's i'«.f(',21 Ch. 1). 51!) ; National Funds Aftsuranee Co., 10 Ch. D. 118; Guinnegsv. Land Corporation of Ire- land, 22 Ch. D. 349 ; MwDowjhallv. Jerxeij Hotel Co., 2 I Icni. & M. .')28. If iliivctor.s have received I'loni a .share- holder ajiy jiart of the money due upon his shares beyond the amount actually called up, and have agreed to i)ay interest on the money so advanced, interest must he paid out of cajiital if there aie no profit.s out of which to pay it. This is not a reduction of capital hut spending capital in payment of a lawful debt. Dale V. Martin, 11 L. R. Ir. 371 ; affirming 9 L. R. Ir. 498. (t) Jjydc V. Eadern Bengal Bail. Co., 3(5 Beav, 10; Munt v. The Shreusbury and (.'kcstir Bail. Co., 13 Beav. 1 ; Simpson v. Venison, 10 Ha. 51 ; Vance v. Tlie East iMueas. Rail. Co., 3 K. & J. 50, and the cases there cited. '■^f,?f f^ 822 MANAGEMENT OF COMPANIES. Invalid byo- luwH. Bk. III. Clmi>.l. retiring shftreholders (h) J or in gubscribinf* to a nultlic insti- ■ tution as the Imperial Institute (r) ; or in stuuipui^,', an' piij'in{4 for, the rutiirii of proxy piipi rs of any kind, or in piint- ing and sending out proxy papers in n form calculiitcd tv S. 502 ; P>eman v. Uuifurd, 1 Siin. N S. TmO ; Salomons v. Luiitij, 12 Deiv. 377. Compare Clay v. Ihfil J De O. & S. 708. ((/) See Ernest v. Nlcholh, C H. L. C. 401; Era Assiir. Co., 2 J. (<•) See note (e) next page. rOWERH UI' MAJOUITIES. 321] mnjority of nno citinimny to puvchiiso tlio uhhcIs niul linl>ilitl<>s ut iiiiiitlirr witlioiit Hiiiiilai' iiowers (/). NVlience it follows tliat two coiiipuiiics oaiuiot aiiialgiuiiatu with each other, uiih'Hs Mich It tniiisaction is authoi'istMl hy the constitutions of both ,01111)1111 ics, "*' ^i"^^'^*'^ oil i'"^ shareholdors in both ronsont to ilif iimulj,'aiuation (//). And where there is power to ninnltja- iiiiUc, that power must bo strictly pursued, or at least there must be no substantial departure from it (/<). Tilt' right of a nmjority of shareholders to npply to the Li'ijisliiture or the Crown for an act of Parliament or charter tor till' purpose of chauf^ing the constitution of the company, 1ms (Kcasioned much discussion and no little dilVerenco of oiiiiiion. The right of every person to apply to Parliament or to the crown on any subject he pleases is ft)unded upon principles (if coiistitutionnl law, which ni'c paramount to nil others ; and nlthough there is an instance in which a minority of a chartered sodcty obtained an injtmction, restraining the majority from surreiuleriug the existing charter with a view to procure a new one raiiteriftUy differing from it (/), the authority of this case is questionable. The Court will, however, even at the instance (if one dissentient shareholder, grant an injunction restraining the application of the funds of an incorporated company in ildVaviiii,' the expenses of obtaining an act of I'arliament ftltLring the constitution of that company (k) ; but iijion con- stitutional principles the Court declines to go further, and will not restrain shareholders in a company from applying at their own expense for an act which, if passed, will affect the whole Pk. III. Clmi.. 1. Set. :t. Aiii.il){:tiimtiuu. Mitihi of mil- jority to i>ii|>!y for power to altor iiiitiiro of coiii|iniiy, Wiinl r. S(Hi('fy of Atluriiiuii. Riicli npplii'ii- tions iiiHv lio niailo, liiit not at tilt* ex|H'iiKO of tliu cumimiiy. &H.400,amllH. & M. 672. See 'mit, pp. 250, 258, and, further, as to a!nal|,'aiuatin^', Ex parte Bagshaw, 4 H 341 ; Stacc and JForth's case, i Ch. 682 ; Crilbert v. Cooper, 10 Jm, 580, V.-G. E., and Shrewsbury m BiminijlMm Rail. Co. v. Slour Maj Ml. Co., 2 De G, M. & O. *W; European Society Arbitration •H8Ch.D.679. (') By §27 of the Stannaries act, 13»( (51) (S: 51 Vict. c. 43), cost-book oiiK' companies govevnod l>y lh.it act have power to amalgamate with companies working adjoining mines. (/) See last note but one. (f/) See note.s (c) and ( lisle Kail. Co. v. The Korth- JFestern Kail. Co., 2 K. & J. 293; Heathcote v. The North ^taffonUire Kail. Co., 2 Mae. & G. lOD. See, also, Bill V. Sierra Nevada, dc, Co., 1 De G. F. & J. 177, in which an injunction to restrain an applicatinn to a foreign government was ako refused. COST-BOOK MINING COMPANIKS. 325 Bk. III. Chap. 1. 1. Cost-book mining companies governed by the Stannaries U — acts, 1869 and 1887 (m). Tlie atfiiirs of a cost-book mining company are conducted l)y Duties of ill! agent called a purser, and by the acts above mentioned the I'ullowing duties are imposed upon him : — 1. To enter proper accounts in the cost-book of the company every four months (h). 2. To call a meetin;^ of the shareholders every sixteen weeks tor the transaction of ordinary business, and to submit to the meeting liis accounts (a). 3. To make out and send to the registration office at Truro the penodical returns required to be sent by him (p). A copy of the company's rules and regulations is to be filed Comp,-iny's rules at the otlice of the registrar of the vi^e-warden's court, and to be open to the inspection of all applicants at reasonable times (f/). These rules and regulations may within certain hmits bo altered or added to by the company by special resolu- tiuns passed in accordance with the terms of the act. The company has no power to make rules or regulations incon- sistent with the act, nor to abrogate any special rules or iv|iuliitioiis for the management of the cor ipany existing at the time when the act was passed (24 June, 18Gi>) ; nor to make iiiiy special rule enabling a company' then existing to borrow money (/•)• and regulations, (/«) The act of 18C9, 32 & 33 Vict. c. Ill, does not oxtund to conipiinie.s ri;;istcre(l iiiulor the C'onipaiUL's acts uiik'ss smli eoniitiuiius are expressly luiiuitiiK'il or necessarily implied, § :i, wliili; the act of 1887, 50 & 51 Vict, c, 43, does ajiply to such coni- I'iiiiies (§ 2, interpretation of the wurl "conipiiny"). Moreover, while tlie act of I8(i!) applies to all mines in the Stannaries, § 3, the act of I'^'^T applies only to metalliferouii mines and tin streaming works in tliat district, § 3. («; 32 & 33 Vict. c. 19, § 9, and M&dl Vict, c, 43, § 23. Compare the two section.s, and notice that by the hitter act a penalty is imposed for any omission or f Jse entry, §§ 23 & 24, See, as to mine club funds, § 13. (o) 50 & 51 Vict, c. 43, § 25. A ])enalty is imposed for any breach of duty. The accounts are to be printed and a copy sent to each shareholder, ib,, § 26. [p) lb. § 32. {q) 32 & 33 Vict. c. 19, § 9, and 18 & 19 Vict. c. 32, § 22. JFest Bcvo)i Great Cunsols Mine, 27 Ch. D. lOG. (r) 32 & 33 Vict. c. 19, § 7. 326 MAN'AUKMKNT OF OOJIPANIES. Bk. III. Chai-. 1, Sect. 4. Meetings and votes. Shares. Forfeiture of shares. Relinquishment of shares. Transfer of f hares. Sale anil amal- gaiuation. There must be an ordinary meeting of the company once every sixteen weeks (s). Resolutions at a meeting are passed by the votes of a majority in value of the share- holders present in person or represented by proxy (<). A meeting with special notice has power, to make calls and audit the accounts («)• The company has power by a resolution passed at a meeting witli special notice (x), to forfeit (y) shares for the non-payment of calls, after notice requiring payment has been given by tlie company {z). Shares when forfeited become the property of the company and may be disposed of as it thinks fit. Shareholders may relinquish their shares by notice in writing delivei'ed to the purser, and the shares thereupon become the property of the company (a). But by the Stannaries act, 1887 (h), the relinquishment to be valid must be made at least six weeks before a I'esolution is passed, or an order made, for winding up the company. Forfeited and relinquished shares may be sold by the com- inui)', and may be bought by the shareholders (c). A statutory declaration by the purser, that the requirements of the act, necessary to constitute a valid forfeiture or relinquishment, have been complied with, and his receipt for the purchase money, confer a good title on the purchaser (d). The company need not recognize the transfer of a share until all calls are paid (e). Nor need it recognize a fraudulent transfer (/), nor the transfer ('''• y'- ^^^v- !• Sect, 4. gamate with a company working au adjoining mine (A). c. 16. 2. Companies governed by 8 tC 9 Vict. c. 16. First, as to the managing bodij. The Companies' clauses consolidation act contains several i. Directors important provisions relating to the appointment, rotation, °m!'°r"e',\ 'by powers, and proceedings of directors of the companies to _^ '^ ** ^ "''^' ^Yllich the act applies {I). The special act of such a company is supposed to fix the number of its directors, and this number cannot be vaiied except within such limits as may be thereby allowed {m). A certain number of the directors are required to retire from office in rotation ever}' year, so that all the directors may be changed every three years ; the persons to retire are to be determined by the directors by ballot if they do not otherwise agree ; but the persons to take their place are to be elected by the shareholders {»). The directors may be removed by the shareholders at a general meeting (o). Occasional vacancies are to be supplied by the directors them- selves (j))- In order that a j)erson may be eligible as a director he nuist be a shareholder, and hold as many shares as may be required by the company's special act (q). Moreover, it is expressly declared that no jierson holding an office or jiluce of trust or profit under the company, or interested in any coutvuct with the company, is capable of being a director (;•) ; ii'.hI tluit it' any director accepts or holds anj* other office or place of trust or profit under the company, or is directly or indirectly concerned in any contract with the company, or (0 Ilj. § 24. {k) 50 & 51 Vict. c. 43, § 27. Nutke tliat tlie niajoiity neces.sary t" iiass the siiecial re.sohitiuii in these two casi's is (lill'oient. {') Sue 8 & 9 Vict. c. IC, §§ 81 to UK). [m] lb. §§ 81 & 82. See on the C'lnstruction of such acts, Portal v. Enmme, 1 C. P. D. 201 and 664, and cases there cited. (n) 8 & 9 Vict. c. 16, §§ 88, 83, 84. (o) § 91. hie of mgJit liuil. Co. V. TuhoariHn, 25 Ch. D. 320. (;)) lb. §89. ((/) lb. § 85. See Portal v. Emiiiens, 1 C. P. D. 221 and 664 ; KlncaiiVs case, 1 1 E(|. 192 ; Forbes' s case, 19 Eq. 353. (r) lb. § 85. 828 Bk.III. Cbap. 1. Sect. 4. MANAGEMENT OF COMPANIES. Contracts be- tween directors and company. Foster v. Oxford Railway Com- pany. Nature of disqualifying contract. participates in the iiiofits of any work to be done for it, or • ceases to be the holder of the prescribed number of shares tlien his office sliall become vacant, and he shall cease from voting or acting as a director («). But an exception is inmle as regards a director whose only interest in a contract witli the company arises from his having shares in another coiupanv with which such contract is made {t). These provisions do not, like the similar clauses of the re- pealed act of 7 & 8 Yict. c. 110 (ii), render void a contract made between a director and the company, unless such con- tract is confirmed by the shareholders ; and it was held in Foster V. 'Jlie Oxford Unilwaij Comjuini/ (.r), tliat under the act 8 i^ 9 Vict. c. 16, such a contract was not void. But it nnist not be forgotten that, although the act does not ex- pressly invalidate contracts of this description, theie is a well- established ecpiitable principle which precludes any person whose duty it is to take care of others, from binding them by any bargain entered into on their behalf with himself, unless all the circuu) stances relating to such bargain are fully and clearly explained to them (y). AVitli respect to the nature of the contracts which disqualify a person interested in them from being a director, it has been held, that they must be contracts made with the company in the prosecution of its undertaking ; and that there is nothing to prevent a banker of a company from being one of its directors (z). (s) 8 & n ViL-t. c. l(i, § 80. (0 lb. § ^7. (it) See 7 & 8 Vict. c. 110, § 29. Tlie follow iiij,' (ItiLisioiis upon that section may be usefully referred to. Erned v. Xich. 687 ; Ej' parte Stcars, Johns. 480 ; Sfvars v. South Essex Gns Co., t) C. 15. N. S. 18(». See as to the purchase of shares by directors, Hudykimon v. Nut. Lire Stock Insio: Co., 26 Beav. 473, and 4 De G. & J. 422 ; Lane's case, 1 De G. J. & S. 504 ; and as to loans, Tcnrsham v. Cameroii'.i, dr.. Uuil. Co., 3 De G. & S. 29(i ; Murmip Executors' case, 5 De G. M. & (1. 746 ; Baker's case, 1 Dr. & Sin. 55 ; Bluek v. Mallalue, 27 Beav. 3:)8; British Brov. Ass. Socictij v. Xortcm, 3 N. R. 147; I'iul and llcn-^fordi case, 33 Beav. 204. (.-•) 13 C. B. 200. But (iuery tins case, see Aberdeen Rail. Co. v. Blaihi', 1 McQu. 4G1 ; Flanagan v. G. //'. Bail. Co., 7 Etj. IKi, in wliicii such contracts were held invalid. (y) bee infra, Ch. 2, § 2, duties of directors. (,v) SJicfficld and Manchester M. UNDER THE COMPANIES CLAUSES CONSOLIDATION ACT. 829 The directors have the management ^k. III. Chap. i. " Sect. 4. To return to the act. of the nffains of the companj', with the exception of sucli as are required to be transacted by a general meeting (a), aiiectors. They are subject to the control of a general meeting specially' convened for the purpose, but no resolution of any such meeting renders invalid what may have been done before the ivsohition passed (h). The directors are required to hold meetings at such times as they shall appoint, and thoy are empowered to adjourn such meetings as they may think proper (c). Any two directors may require a meeting of direc- tors to be called (r). One-third of the whole number of directors constitutes a quorum, unless some other quorum is prescribed by the company's special act (c). All questio:::. at any meeting are determined by a majority of votes of the directors present, and, in case of an equality of votes, the cliairuian has a casting vote (c). A chairman is required to be elected, and the elected chairman continues in office for a year(rf). A deputj'-chairman may be elected, if the directors think fit, and vacancies in the office of chairman and deput}-- diairman are to be filled up (<>)• In case of the absence at any meeting of the chairman and deputy-chairman, the directors present are to choose one of their number to be a chairman for that meeting (/). The directors are authorised to delegate their powers to one Delegation of or more committees {(j). Members of committees must act in ^°'^'' concert and not delegate their powers to one of their number (/<)• The mode in which contracts are to be made on behalf ot Oontracts by tlie company has been already explained (/}. The directors are required to cause to bf; entered in proper Duty to keep books, notes or minutes of all appointments and cuulracts made °° "' by them, and of the orders aid proceedings of all meetings of l\ V. iromknd; 7 M. & AV. 574. The casus Ml'iTied to aliove, in udtc (ii)i niay be usefully coiiMulted on tlii^liead. Sl'c alfo Lewis v. Cm; 1 Kx, 1). 4«4. (") 8 & !) Vict. c. IG, § 90. See, as to this, § !»i, ami itifni, p. 332. CO lb. § !J0. H lb. § S)2. Sec infra, note (g). 00 II). § 93. («) II. id. (/) lb. § 94. (r/) II). §§ 05 & 9(5. See D'Arcy v. Tamiir Rail. Co., L. R. 2 Ex. 158, where a bond was sealed witliout authority. (/i) Cook v. IVard, 2 C. P. D. 255. (t) lb. § 97 ; see ante, p. 226. 880 Bk. III. Chap. 1. Sect. 4. Acts of (le facto dircctora valid. Indemnity of directors. Duty to take Ecciirity from subordinate officers. MANAGEMENT OF COMPANIES. the company, and of the directors and then' coumittees ( j). All entries are to he signed hy the chairman of the meeting at which they are made, and entries so signed arc receivable iu evidence without any preliminary proof (k). The i)roceedings of de facto directors are not invalid, althou"h it may afterwards he discovered that there was some defect in their appointment, or that they were disqualified {I). The directors are not personally liahle for what they may lawfidly do on hehalf of the company, and they arc entitled to be indemnified hy the company against all costs, charges, and expenses properly incurred by them in the exercise of the powers entrusted to them (m). The directors are required to take security from every person entrusted with the custody or control of the monies of the companj- (h) ; and they are empowered to demiuid from eveiy officer employed by the company an account of all monies received by him on behalf of the company and the delivery up of all receipts and vouchers, and paj'meut of the balance which may appear to be owing from him ou such account (o). A summary remedy is provided in case such a demand is not complied with(j;), and also against any officer believed to be about to abscond without accounting (q). 2. Shareholders in companies governed by 8 & 9 Vict. 0. 16. Secoiidly, as to the shareholders. Ordinaiy general meetings of the shareholders are to be held twice a year, viz., in February and August, unless the company's act otherwise directs (r). Extraordinary general meetings may at any time be convened by the directors (s) ; but provision is also made for convening such meetings at the instance of the :• n V'.jt. c. 16, § 98. • /':) r\ '^ >ft ae to this, Miles v. .ini'i'i., ■' .,-. ii 845, and other cases :,,)H; - . ■ 312. {if I... v; j! . For a tUscussion as to the effect of such a clause, see Newkaien Local Board v. Ncwhaven School Board, 30 Ch. D. 350. (m) lb. § 100. (n) lb. § 109. See Evans v. Coventry, 8 De G. M. & G. 835. Decree ou appeal, clause 6, as to tlie effect of not observing such clauses. (o) lb. § 110. (p) lb. §§ 111 & 112. (q) lb. § 113. (r) lb. § 66. (s) lb. § 68. UNDER THE COMPANIES CLAUSES CONSOLIDATION' ACT. 831 sliareholdcrs (0- In order to constitute a meeting, there must ^^^- ""• Chap. l. Sect. 4. be present, eitlier personally or by proxy, the quorum prescribed bv the special act ; and whei'e no quorum is prescribed, then slmrcholders, holding in the aggregate not less than one- twentieth of the capital of the company, and being in number not less than one for every 600/. of such required proportion of capital, unless such number would be more than twenty, in which case twenty shareholders, holding not less than one- twentieth of the capital of the company, shall be the quorum (»). Every meeting is to be presided over by a chairman, viz., by the chairman of directors, or in his absence, by the dcputy- chaimian, or in the absence of both, by a director chosen by liie meeting, or in the absence of all the directors, by a share- holder similarly chosen (.r). Fomteen days' public notice, at least, of all meetings are to Notices of bo giveu by advertisement (y) ; and every notice of an extra- ordinary meeting is to specify the purpose for which the mooting is called (2) ; and if any matters, except such as are authorised by the legislature to be done at an ordinary meeting, iiio to be transacted at such a meeting, the notice convening Unit meeting must state what those matters arc (a). The sluu-eholders present at any meeting are to proceed with the business to transact which the meeting shall have been con- vened, and with no other business ; and no business is to be transacted at an adjourned meeting except that left unfiviisiied at tlie first meeting (h). No shareholder is entitled to vote, unless all the calls upon Votes of .sharc- his shares have been paid (c) ; but with this qualification, and '°'^'^' except wliere the company's special act otherwise provides, every shareholder is entitled to one vote for every share he hdlds up to ten, and to one additional vote for every additional live shales up to one hundred, and to an additional vote for every ten shares beyond the first hundred (d). Voting by (0 8 & 9 Yict. c. IG, § 70. (ii) lb. § 72. For some purposes 1 less (quorum is sutHcient, see the rl (x) lb. § 73. ■ " ■• (1/) lb. § 71, and see § 138. (;:;) Ibid. (rt) lb. §§ 67, 71, 138. (6) lb. § "74, and see §§ 67 & 69. (c) lb. § 75. id) Ibid. 882 MANAGEMENT OF COMPANIES. Bk. III. Chap. 2. proxy is allowed, subject to certain regulations, easily com- Sect. 4. ^ plied with (e) ; and every proposition is determinerl by a niajorit}' of votes, the chairman having the casting vote in case of an equality (/). Where a share is registered in the names of more persons than one, he Avhose name stands first on the register is to be treated as the shareholder for all purposes of voting (r/). Lunatic shareholders are entitled to vote by their connuittees, and infant shareholders by their guardians (//). In case of a dispute as to whether any reso- lution has been passed by the required majority, a poll niav be demanded ; but if no poll is demanded the decision of the chairman is final (i). The shareholders elect the directors (k) ; but oecasional vacancies occurring among them may be filled up by the con- tinuing directors (/). The shareholders also appoint the aiuli- tors, and determine the remuneration of the directors, auditors, treasurer, and secretary, the amount of money to be borrowed on mortgage, and the extent to which the company's capital may be augmented (in). Dividends, moreover, can oidy be de- Other powers of clared at a general meeting of the shareholders («)• The share- holders can also, at a meeting specially convened for the pur- pose, make regulations for the conduct of the directors (o) ; or remove them (j)). The power of making bye-laws may be exercised by the directors, subject to the control of the share- holders (q). Sealing register. The company's register of shareholders is to be authenticated Election of officers. (e) 8 & 9 Vict. c. 16, §§ 76 & 77, and 51 & 52 Vict. c. 48. See ante, p. 309. (/) 8 & 9 Vict. c. 16, § 76. ifl) lb. § 78. (k) lb. § 79. (i) lb. § 80. (k) lb. §§ 83 & 91. As to removal, see ante, p. 327. (l) lb. § 89. (m) lb. § 91. See, too, as to auditors, §§ 101 & 104, and as to borrowing money, § 38, et seq. A company must pay its secretary for liis service.*, although hi,'- reninno- ration may not have been li.\eJ ;it a g.U'-'-al meeting, BUI v. Dmnth, d-c, Rail Co., 1 H. & N. 305. 00 8 & 9 Vict. c. 16, § 91. (o) lb. § 90. (2)) § 91. Mc of iright Hail Co. V. Tahourdin, 25 Ch. D. 320. (q) lb. §§ 90 & 124. The bvi- laws must be under .seal. A justice of the peace who is a shareholder cannot convict for a breach of a bye-law, R. v. Hammond, 3 N. H. 140. UNDER THE COMPANIES ACT, 1862. 888 bv the senl cf the company at the ordinary general meetings of Bk. III. Chap. i. •' Sect. 4. slmreholdcrs (/•). Sliares cannot he forfeited for non-jiayment of calls without Forfeiture of the sanction of a general meeting of shareholders (s). Tlie shareholders have a right to inspect and take copies R'S^t to inspect books, &c. of(0- 1. The shai'eholders' address-book («). 2. The register of mortgages and bonds (.r). 3. The register of consolidated stock (y). 4. The register of debenture stock (z). 5. The company's books of account («)• G. The company's special act (h). They have also a right to have copies of, or of any part of the shareholders' address-book, and the company's books of account, and special act (c). Copies of the company's special act may always be seen by any person interested (d). 3. Companies governed hy the Companies act, 1862. The constitution of a company formed under the act of Constitution of 18G2 is determined by its memorandum of association and its undcr'aut."""" articles, to copies of which the members are entitled (e). Both the memorandum and the articles bind the members as if they had signed and sealed them, and had covenanted to observe their conditions, subject to the provisions of the act (/). The memorandum of association defines the nature and objects of the company, and cannot be altered in these respects, although ((•) 8 & 9 Vict. c. 16, § 9. (»■) lb. §§ :n & 32. See infra, liook iii. c. C, as to forfeiture of sliaros. (t) See as to this, Mutter v. Eastern ilidhmds Hail. Co., 38 Ch. D. 92, noticed ante, p. 314. (it) lb. § 10. .; (j;) lb. § 45. (n) lb. § 63. Holland v. Dickson, 37 Ch. D. 669. (,v) 26 & 27 Vict. c. 118, § 28. Mutter v. Eastern Midlands Hail. Co., 38 Ch. D. 92. (a) 8 & 9 Vict. c. 16, §§ 117 & 119. (i) lb. § 161. (c) lb. §§ 10, 119, 161. {d) lb. § 161. Printed copies can be bought of the Quecu'a printers. (e) 25 & 26 Vict. c. 89, § 19. (/) lb. §§ 11 & 16. 884 MANAGEMENT OF COMPANIES. '"'■ "cct'^4*''' ^' ^^ '""^ "^ ^"^^ others ({/). Tlie articles contain rpgulntions f„j. ^]^^ niaimfjement of the conipixny's affairs, and may U altered from time to time by a special resolution of the mem- bers (/<), notwithstandiii{j[ any article to the contrary (i). ]]^i neither the articles themselves nor the power of alterin" them authorises any alteration of the constitution of the company, ns defined by the memorandum of association (A) ; e.y., the issue of preference shares (0, the payment of dividends out of capital(«0 ; the purchase of its own shares («) ; the issue of shares at a discount (o) ; or the reduction of capital otlierwise than as allowed by the Companies acts, 1867, 1877, and 1880, which will be referred to hereafter (j)). Constitution of The constitution of an existing company, registered but not existing com- ■, i ^ n i r^nr^ -I . panies refe'istereil lormed Under the act of 1862, IS determined by the act of I'm'- un er t e act. liim^ent, letters patent, deed of settlement, or other instrument creating or regulating the company. This constitution, so far as it is fixed by act of Parliament or letters patent, is only alter- able by the legislature or the Crown, as the case may be (q) ; (g) lb. § 12. See, also, as to tlie liability of the directors, 30 & 31 Vict, c. 131, § 8 ; as to reducing capital, ilj. § 9, ct scq., amended hy 40 & 41 Vict. c. 20; as to sub- dividing shares, ib. § 21 ; as to declaring that a portion of the capital shall not be called up except in the event of a winding- up, 42 & 43 Vict. c. 76, § 5 ; as to returning iirofits in reduction of paid-up capital, 43 Vict. c. 19, §§ 3-6. See, also, 28 & 29 Vict. c. 78, § 3, amended by 33 & 34 Vict. c. 20, which enables certain companies to restrict their objects in order to avail themselves of the privileges of issuing transferable mortgage debentures under that act. (h) § 50. liheffidd Nickel Co. v. Unwin, 2 Q. B. D. 214. (i) Walhcr v. London Tramways Co., 12 Ch. D. 705. {k) Ashbnry Rail. Carriage Co. v. Biche, L. R. 7 H. L. 653 ; Ashhury V. ll'atmi, 30 Ch. D. 376, 28 Ch. D. 56, and ante, p. 164. (I) Ilntton v. ScarhoroiKjh Hohl Co., 2 Dr. & Sm. 521 ; AMuriiv. Watson, 30 Ch. D. 37(! ; and (li>- tinguish Harrison v. Mi.rkun lluil. Co., 19 E(i. 358 ; South Durhm Brewery Co., 31 Ch. D. 201, i/h/c, p. 322, note (6). See infra, c. 3, § 1. (rn) Guinness v. Land Cor])omtm of Ireland, 23 Ch. D. 349. {n) Trevor v. Whitworth, 12 App. Ca. 409, disapproving of the reason- ing of the Court of Appeal in Dronfield Silkstone Coal Co., 17 Cli. D. 76 ; Taylor v. Pilsen, d-c, LvjU Co., 27 Ch. D. 270, nuist be con- sidered as overruled on this point. (o) Almada v. Tirito Co., 38 Ch. D. 415 ; New Chile Gold Mining Co., ib. 475 ; Addlestone Linoleum Co, 37 Ch. D. 191. riashjnasfon Tube Co., 23 Ch. D. 543, and Ince Hall Ilollin:! Mills Co., ib. 545 note, are overruleil. ( })) Hope V. Liternational Finan- cial Soc, 4 Ch. D. 327. (f/) 25 & 26 Vict. c. 89, § 196, cl. undeh tiie companies act, 18C2. 885 nor cftn the members change the constitution of the company '"'• ^^^- C*"*?- 1- ill niiv of those matters which, had it been formed under the act (it" IHC'2, \vould have been unalterable by its members (»•)• But those regulations which are not contained in any act of rarliament or letters patent, and which, if the company had been formed under the act of 18G2, miglit have been altered by its members, may be altered by a special resolution of the raeiubers of an existing company, after its registration luider the act (s). A company registered under the act as an unlimited com- Power to clmnso , i. 1 ■ i T -i. 1 1 xi from unlimited puny can now be converted into a hmited company under the to umited. provisions of the Companies act, 1879 (<)• Yciy Httlc is to be found in the act relating to the powers of Management directors, or to the internal management of a company's affairs, affaire?'"'^" These matters are for the most part left to be provided for by each company as it may deem proper, and are accordingly dealt with in Table A. . . The act of 18G2, however, requires that a general meeting Provisions of of members shall be held once a year at least (h), and the amendment act requires that every company formed under the act of 186'2, after the 1st of September, 18G7, shall hold a general meeting within four months after its memorandum of association is registered (c). Moreover, the act of 1862 enables the members, by a special resolution, the meaning of which is defined (a), 1. to alter the constitution and regulations of the company to the extent already pointed out; 2. to appoint inspoctors to examine into the aft'airs of the company (?/) ; and 3. to have the company wound up (z). The act, further, renders the keeping of proper minutes compulsorj', and enacts that, until the contrary is proved, meetings and proceedings, of which minutes shall be properl3' made, shall be considei*ed act. 3 & 4. See, also, 30 & 31 Vict. c. 131, § 47. (r) § 196, cl. 6. («) § 196, and see § 176, as to companies governed by Table B. of the act of 1856. (() 42 & 43 Vict. c. 76, §§ 4 & 5. (ii) 25 & 20 Vict. c. 80, § 49. Gibson v. Barton, L. R. 10 Q. B. 329. (v) 30&31 Vict. c. 131, § 39. (a;) 25 & 26 Vict. c. 89, § 51. (2/) § 60. (2) §§ 79 & 129. The members of unnt<,'isterL'd companies have not this power, see § 199. 88G MAXAOKMENT OF CUMI'ANIKS. iJk. III. Chap. 1. as duly conveiu'd and tmnsiicted, and that all nppoiutinonts of Sect. 4, directors, niaiingcrH or liquidators, Huall be dotMUfd valid, imd that all their acts shall be valid, notwithstanding any (klert that may afterwards be discovered in their appointiiieuts or (jualifications {a). Examination of For the greater protection of the members of comptiniog the by insi>cctors. ^^^ contains soiue very important provisions, enabliii},' not only the members (/>), but also, on their application, the Bonrd of Trade to appoint inspectors to examine into and n^,)rt upon the affairs of all companies registered under the not (c). A copy of the report of the inspectors, sealed with the scnl of the company, is also made admissible in any legal procet'diiif; as evidence of their opinion on any matter contained in their report (d). Provisions of Passing now to the regulations in Table A., the following rules will be found respecting the managing bodies and the members of companies to which that Table applies. Directors. Table A. First, as regards the manaying body. The business of the company is to be mnnnged by the directors, and, in case of any vacancy in their body, by tiiose ■who continue in office (Table A., Nos. 55 and 501. Tlic powers of the directors are, however, subject not only to the provisions of the act, but also to the company's regula- tions (ih.), which, as before observed, may be altered by special resolution. What is done by de facto directors is valid, notwithstanding the subsequent discovery of a defect in their appointment or of their disqualification (No. 71, and § 67 of the act) (c). The directors are the proper persons to make calls (No. 4), forfeit shares (Nos. 17 and 22), and ajipoint the first auditors (a) 2.5 & 26 Vict. c. 89, § 67. See ante, p. 312. (ft) § 60. (c) §§ 56-59. (rf) § 61. (e) See ante, p. 300. Newlmven Local Board v. Newhaven School Board, 30 Ch. D. 350 ; and Howbeach Coal Co. V. Teague, 5 H. & N. 151, where the defect in the appointment of directors was held not to be ciircJ by a clause of this nature. Compare Murray v. Biush, L. R. 6 H. L. 37, which turned on a similar clause in 7 & 8 Vict. c. 110, § 30. UNDEll TllK COMl'AMKS ACT, 18G2. nay (No. HI). But the (lireotors ciimint, without the sanction of '*•'• !"• '-'li'^P' !• , , . , Sect. 4. the members, convert shares into stock (No. 23), incrcnse the capital by issuing now sluvres (No. 20), or declare divicleuda (\o. 72). Until directors are appointed the subscribers of the memo- Appointment nmdmn of association are the directors (Table A., No. 53), 1111(1 lire the persons to determine the number and names of tin; fust directors (No. 52). This number may afterwards be viiried by the members (No. G3). At the first ordinary meet- in;,' (if the members, after the registration of the company, the whole, and in every subsequent j'ear one-third, of the directors, must retire (No. 58). In case of any dispute as to who sliidl retire in the first two years after the first, the i)er- siiis to retire must be determined by ballot (No. 59) ; but iitterwurds those who have been longest in office must retire (Xo. /jO). a retiring director may be re-elected (No. 60). Viicftiicies occurring by retirement under these provisions must lie filled up by the members at the meeting at which the (Ihectors retire (No. Gl) ; otherwise the meeting stands ad- jHiuiicil for a week (No. G2) ; and if the vacancies are not tilled up at such adjourned meeting, those directors whose l)liices are not filled up continue in office for another year (Xo. G2). Casual vacancies may be filled up by the other directors (No. 64) (/). \ director vacates his office — 1. if he holds any other office Distiualifications. or pliice of profit under the company {(/) ; 2. if he becomes' bankrupt or insolvent; 3. if he (otherwise than as a member (if some other company) is concerned in or participates in the piutits of any contract with the company (No. 57) (//). Irrespectively of these provisions, any director may be re- Removal of moved by a special resolution of the members (No. 65). The members fix the remuneration of the directors (No. 54). Their pay. The directors may regulate their own meetings as they Meetings of directors. (/) York Ti-diiuriuj.i Co. v. JFillovs, S y. B, U. 085 ; Mumter v. Cammell, -1 Cli. D, 183. in) The directors may appoint on' ijf themselves to be a manager at a ■alary, but the person so appointed ui-es liy the appointment to be a I..C director, Eales v. Cumherlavd Black Lend Co., 6 H. & N. 481. Compare Iron Ship Coating Co. v. Blunt, L. R. 3 C. P. 484. {h) See us to this, ante, pp. 327 and 328. Z^ W : ■■•? 838 MANAGKMKNT OV COMPANIES Delegation of powers. Duties of direccors. Bk. III. Chap. 1. think fit (No. 66), but thej- are bound to keep minutes of tlieir proceedings (see § 67 of the act). The directors may deter- mine what number is to be a quorum (Table A., No. fiG), and may elect a chairman and determine the period for which he shall hold office (No. 67). If no chairman is present when a meeting assembles, the dii'ectors iwesent must choose one df themselves to be chairman j»'o tern. (No. 67). Questions arising at any meeting of directors are to be determined by a majority of votes, the cliairman havinr; m second or casting vote in case of equality (N). 66). Any director may at anytime summon a mc eting of directors (No. 66). The directors may delegate any of their powers to com- mittees of themselves (Nos, 68 — 70) (i). The directors may at any time convene an extraordinary general meeting of the members (No. 82). The directors are bound to keep accounts of the company's stock in trade, receipts and expenditure, assets and liabilities ; and the members are entitled to inspect these accounts, subject to such I'estrictions as the members may themselves impose (No. 78). The directors are further bound, once a year at least, to lay before the members a statement of the conipanj's income and expenditure for the past year (Nos. 79 and bu;, and also a balance sheet containing a summary of the assets and liabilities of the company in the form given at the end of Table A. (No. 81). A printed copy of this balance sheet is moreover to be sent to each member seven days before tlie meeting (No. 8^*^ In addition tc these provisions the directors are bound bj the act itself, and mostly under penalties, to do various things which it may be useful here to recapitulate, viz. : — 1. To keep a proper register of members (/.), and to allow it to be inspected (l). 2. To make out and send to the registrar of joint-stock companies the annual lists required to be sent to him (/«)• (t) See Totterdell v. Furcham Brick Co., L. R. 1 C. P. (i74, iiii.l ,nit<; \t. 15«. (/.) 25 & 20 Vict. c. 89, § 25. (/) § :V2. (»i) §§ L'(!, 27, 4.-., 4(1. UNDER THE COMPANIES ACT, 1862. 839 3. To notify to the- registrar all inci'eases or re -distributions ^'^- IJI- Chap. i. Sect. 4. of capital and conversions of capital into stock (n), and all increases of members where there is no share capital (o). 4. To keep, if there be no share capital, a register of directors, and send a cop}' of it to the registrar, and notify to him all changes amongst the directors {p). 0. To take care, in the case of limited companies, that the word "limited" appears, and is used as prescribpd by the statute (q). 6. To keep, in the case of a limited company, a register of all mortgages or charges affecting its property, and allow such register to be inspected (?•). 7. To keep, in the officij of a limited banking company, an insurance company and deposit provident or benefit society, the statement required by the act, and to permit such state- ment to be inspected (s). 8. To take care that the company' does not carry on business with less than seven members (t). 9. To send copies of all special resolutions to the registrar, and to the members if required («). 10. To submit to examination by the inspectors appointed by the Board of Trade (.r), or by a special resolution of the members (//). Tlie powers of directors, as regards calls, dividends, and the forfeiture of shares, and their duties and liabilities on the winding up of a company, will be pointed out hereafter. Secondly, as regartU the members, Tiie question who are members has been already exa- Members. mined (c). The original number of members may be in- creased (((). (") §§ 28-34. (") § 34. (/')§§ 45 & 46. {) ; and all companies formed after 1st September, 1867, must hold a meeting within four months after its memorandum of association is registered (c). By the regulations contained in Table A., the first ordinaiv general meeting is to be held at such time within six months after registration of the companj', and at sucli place us the directors may determine (Nos. 29 and 31). Subsequent ordi- naiy general meetings are to be held, at such time and place as the members may determine ; and if they do not fix a time and place, a general meeting shall be held on the first Monday in February in every year, at such place as the directors may determine (Nos. 30 and 31). An extraordinary genei'al meeting may be convened by the directors whenever they think proper (Nos. 31 and 82) ; and the directors are bound to call such a meeting whenever re- quired so to do in writing by one-fifth of the members (Nos, 82 — 34). If the directors fail to comi)ly with such requisition, the requisitioners, or any other members, being one-fifth of the whole, may themselves convene an extraordinary general meeting (No. 34) (J). Notice convening Seven days' notice at least, specifying the day, place, and meetings. hour of meeting is to be given to the members, by post or personal service (Nos. 95 — 97, and § 52 of the act), or in such other way as the members in general meeting may direct (No. 35), but the non-receipt of such notice by any memher does not invalidate the proceedings of the meeting (No. 35). Whenever an extraordinary meeting is called, or whenever it is intended at an ordinary meeting to do more tliiui saiution a dividend, or consider the accounts, balance-sheets, and onliiiarv reports of the directors, the notice convening the meeting must state the general nature of the business to bo transacted (Nos. 35 and 30) {e). Kcsolutiona. j^^^ business, except the declaration of a dividend, can be {b) § 49. Gibson v. Barton, L. R. 10 Q. B. 329. (c) 30 & 31 Vict. c. 131, § 39. (rf) Where there are no ref,'ula- tious upon this subject, any live members may suinmou meetings see § 52 of the act. (e) See ante, p. 307, and tlie m> there cited in note (d). UNDER THE COMPANIES ACT, 1862. 841 transacted at any general meeting, unless a quorum of members '"<. in. chap. i. is pi'i'sent wlien the meeting proceeds to business (No. 37). '- Tli*^ quorum is ascertained as follows : — If the members of the company do not exceed 10, the quorum is 5 ; if they exceed 10, one must be added for every 6 additional members up to 50 ; and one for every 10 additional members after 50, until the quorum amounts to 20, which is in all cases a sufficient number (Table A.. No. 37) (/)• If within an hotir from the time appointed for the meeting, Tabic A. a nuorum is not present, the meeting, if convened upon the Dissolution of incctiii". requisition of the 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 (Table A., No. 38). Tbe chairman (if any) of the board of directors, shall pre- chairman, side as chairman at every general meeting of the members (Xo. 3!)) {(j). If there be no such chairman, or if at an}' nieet- iiK' he is not present within a quarter of an hour after the time iijipointed for holding the meeting, the members present shall choose one of tlieir number to be chairman (No. 40) (//). The cliairman may, with the consent of the meeting, adjourn Adjourned I r 1 1 1 J 1 • meetings. it trom tune to time, aiid n-om place to place, but no busniess can be transacted at any adjourned meeting, except the busi- ness left unfinished at the meeting from which the adjourn- ment took place (No. 41) (i). At any general meeting a poll may be demanded by five or Votes. more members ; but if no poll is so demanded, a declaration by the chairman that a resolution has been carried, and an entry til that effect in the book of the proceedings of the company is sufficient evidence of the fact, <' ithout proof of the number or proportion of votes recorded r or against the resolution iXos. 42 and 43). (/) See, as to the quorums, ante, p. 155. ((j) Fur the power and duties of a chairman, see Indian Zoedoiie Co., •2t) L'h. D. 7(». Ci) Where there are no regula- tions to the contraiy, the members may always elect their own chair- man, see § 52 of the act. (i) As to adjourned meetings, see ante, p. 307. 312 Bk. HI. Chap. 1 Sect. 4. Table A. Proxies. Minutes. Powers of members. MAN.VaKMENT OF COMPANIKS Where the regulations do not otherwise prescribe, each - member is entitled to one vote (k), but bj' the regulations in Table A., everj' member is entitled to one vote for every shaie up to ten, and to one additional vote for every 5 additional shares up to 100, and to an additional vote for every 10 shares beyond the first 100 (No. 44). A lunatic may vote by his committee (No. 45). If several persons are jointly entitled to a share or shares, the person whose name stands first on the register in respect of those shares, and no other person, is entitled to vote in respect of them (Table A., No. 46). No member can vote unless he has paid all his calls (No. 47); and except for the first three months after the registration of the company, no member can vote in respect of any share acquired by transfer, unless he has held it for three months (No. 47). Votes may be given personally or by proxy (No. 48) (J), The proxy must be a member of the company, appointed in writing, signed, and attested by one witness at least (No. 49). An instrument appointing a proxy is only good for a year (No. 50), and it must be left at the company's offife not less than 72 hours before it can be acted upon (No. 50). A form of proxy is given in Table A. (No. 51) ; it must be duly stamped (in). Minutes of all resolutions and proceedings of general meet- ings are required to be kept by the act, which moreover makes the minutes of any meeting admissible in evidence, if purport- ing to be signed by the chairman of that or of the next suc- ceeding meeting («). The members have, as has been already mentioned, power to elect (No. 52) and to increase or reduce the number of the directors (No. 63), and to fix their remuneration (No. 54), and by special resolution to remove them (No. 65). The members are also entitled to see the accounts of the company (No. 78), and to appoint all auditors, except the first (No. 84). . . (k) 25 & 26 Vict. c. 89, § 52. as to voting, ante, p. 309. (/) See ante, p. 309. Sec (m) Ante, p. 310. (?i) 25 & 26 Vict. c. 89, § 67. r.NUER THK COMPANIES ACT, 1862. 343 The members, moreover, are entitled by the act, ^^- ^^- Chap- 1- Sect. 4. 1. To have copies of the company s memorandum of associa tion and articles (o). 2. To inspect and have copies of the register of members (j>). 3. To inspect the register of mortgages required to be kept by limited companies (q). 4. To have copies of all special resolutions ()•)• 5. To apply to the Board of Trade to appoint inspectors to examine the aifairs of the company (s), and by special resolu- tion to appoint such inspectors themselves (0- (j. To insist on the company being wound up («). 7. In addition to these powers, the members are empowered Special resolu- by a special resolution, i.e., a resolution passed by tliree- t'ouvtlis, and afterwards confirmed by a majority of meiuberf. present in person or by proxy, and entitled to vote (x), — to niter the regulations of the company (,(/). But, except by increasing {z) or reducing (a) the original capital, or by sub- dividing the shares (6), or in certain cases by limiting the objects of the company so as to avail itself of the Mortgage debenture act, 1865 (c), or by changing the name of the com- pany ((/), no departure can be made from the memorandum of iissoiialiou (c), nor can the regulations of the compau}' be so altered as to change the respective status of the members, and to give one class a preference over others (/), except as iiuthoriscd by § 21 of the Companies act, 1867. (") § !:•■ p] ) wi. (7) § 43; CraUl Co., 11 Ch. D. (r) §§ 54 & 10. (>■) '(m. (0 § (io. (i<) §§ 7!) & 12!). See, also, 30 & 31 Vict. c. 1.31, § 40. {A 25 & i2(i Vict. c. 89, § .51. The risolutiou must be rogi.stered, § 53. (!/)§50. ':) § 12. Ai* to an unlimited "nipany iniTeasin;:; the nominal iiuount of its capital when rejjis- Kiing ibclf as limited under the t'ompiinies act, 1879, .-ee 42 & 43 Vict. c. 76, § 5. The same section gives a company the power ol' de- claring that a portion of its Ciipital shall not be called up e.xcept in tlie event of a winding up. (a) 30 & 31 Vict. c. 131, § 9, d seq., and 40 & 41 Vict. c. 26, § 3, et SL'(j, (6) 30 & 31 Vict. c. 131, § 21, which only applies to limited com- panies. (r) 28 & 20 Vict. c. 78, § 3, amended by 33 & 34 Vict. c. 20. {d) 25 & i,C Vict. c. 89, § 13. (c) § 12, ante, p. 334. (/) See Hiiiton v. Scarbro' Hotel Co., 2 Dr. & Sm. 521. See ib. 514, mmr m 844 MANAGEMENT OP COMPANIES. Bk. III. Chiip. 1. Questions sometimes arise i-especting the power at one and " — " — the same meeting hoth to alter the articles and to pass resolu- Alteration of articles and acting on them as altered. tions which are only valid after the articles have been altered. Unless care be taken this cannot be done. The articles iiiust be altered first, and then a resolution must be passed to do that which they authorise as altered ((j). But if proper notices are given, there is no reason why a special resolution should not be passed altering the articles, and another resolution (not special) be passed immediately afterwards at the same meet- ing (/j). But two sprcisl r^' Nations cannot be passed in this way, if the second di^p'^r • ^^s validity on the passing of the first (j). and the judgment of Lord West bury in 11 Jur. N. S. 551. Ashbury V. irutson, 30 Ch, D. 37C, and dis- tinguish Harrinoii v. Mexican Rail. Co., 19 Ell. 358 ; South Durham nreicerii Co., 31 Ch. D. 261, where an increase of capital by the issue of preference shares was authorised by contemporaneous articles. (. ■_'. tintions for a partnership commence (/.;). The goiicrnl prin. — — ciples applicable to partners and to persons about to becomo partners are applicable to promoters of coni])anic's in their dealings with the companies which they practically create, ami with the persons whom they induce to join such companies. rrojectom of Nothing is more common than for persons to acquire pio- liTrofit mirofTt! l^^^'^y "^ o^"'^^^" ^^ re-sell it, to fornx a company on pui'pose to buy it, to make arrangements by which the company do buy it, and to conceal their own true position from the com- pany they so form, and induce to buy. Such a transaction can never stand. There is nothing to prevent u person from buying property for himself at one price, and afterwards selhii;,' the same property to a company or any one else at a higlif r price ; nor in a case of this simple description is tlio vendor bound to disclose the fact that lie is selling at a prolit (/). ^loreover, there may be a valid sale to a company by a person engaged in getting it up (/;/), and there often is great difficulty in determining the true nature of any given transaction («) ; but once let it be shown that the alleged vendor was engaged in obtaining property for a company which he was engaged in forming, or that he formed a company to buy property of his own, and it immediately follows that he cannot, without full disclosure on his part, hold the company to its bargain, or in the first case at all events (o) charge the company more than he actually gave. There has been considerable discussion with reference to the meaning of the word promoter, and also with reference to his relation to the comi)any he is endeavouring to form. The word itself has never been defmed ; but it is used in common parlance and also in § 88 of the Companies act, 1867, to denote those persons who bring the company into existence, by taking an active part in forming it and in procuring persons Meaning of tlio term promoter. (k) See Hichens v. Congreve, 4 Riiss. 562, and 1 R. & M. 150 ; Faur.ett v. JVhitehozise, 1 R. & M. 132. (0 See Uuvcrs case, 1 Cii. 1). 182, and 7)cr James, L. J., in 5 Ch. D. 118. (m) As in Paul and Bercafoi-d's case, .33 Beav. 204. See, too, the observations of V.-C. Wigrani, in Foss v. Harbottle, 2 Ha. 489. (?i) As in Beck v. Kantomch, 3 K. & J. 323, noticed infra, p. 352. (o) See, as to this, the Cape Breton Mining Co., 29 Ch. D. 795, noticed infra. I'UO.MOTKllS. 847 nice to lonoe to The )mnion 167, to Istence, liersoiis to ioin it as soon as it is tecliiiicully formed (p). This IJk. III. Chap. 2. . ' . , Sect. 1. description is sufficii'ntl}- accurate lor practical purposes, iiltli()U"li as a (lefuiition it is too wide, for it includes persons, e.q. mere printers and advertising agents, who are employed hy the promoters, but who have nothing to do with the company or its formation in such a sense as to create any relation between it and them. Tlie relation of a promoter to a company which he has taken Roluiion to tho \m% in forming, has been compared to that whi( i subsists between an agent and his principal, and to that which sub- sists between a trustee and his cestui que trust. Of tliese iiiialdgies the last is tlie closest, although neither is peifect. Ihe relation of principal and agent cannot exist between a cDHipany not yet created and those engaged in forming it (q) ; and what is done by them befoi-e the company is formed cannot be ratified by tho company after its formation, unless the word rutified is used in a loose and inaccurate sense (r). On the otlier hand trusts for unborn persons are familiar in English law, and such trusts can be enforced by their objects when they come into existence. The real relation of promoters to companies is difficult to A fiduciary define ; the relation is in truth sui [jeneris, and is the result of dealings and transactions of a kind not known until recent times. The term by which accurately to define such relation has not yet been discovered. Familiarity with trusts and the language emploj'ed in connection with them has led to the description of the relation as a fiduciary relation (s) ; and although this is not a very liapp}' expression, it is not eas}' to Miggest a better. What is meant is that although there is no acUial relation of trustee and cestui que trust between a promoter : nd an unformed companj', yet that when he has succeeded in I'liniing it, he is liable to it in respect of frauds practised by Irani, m \rowir., 3 352. Ic Breton I notked (]') Anle., book i. e. 3, § 2 ; Emma >''7ii'r Mining Co. v. Leivis, 4 C. P. D. '■'M ; U'halnj Bridye Co. v. Green, 5 ',>. 11 1). 109 ; Cover's case, 1 Ch. D. hi ('/) .1 nte, book ii. e. 1 , § 2. r) Ante, book ii. c. 2, § 3. s) Erlanger v. Ncv- Sombrero Phosphate Co., 3 App. Ca. 1218 ; Jlagnall v. Carlton, G Ch. D. 371 ; Emma Silver Minimj Co. v. Lewin, 4 C. P. D. 396 ; Ludiiey, d-c, Co. v. IlinI, 33 Ch. 1). R.'i ; JVhalnj Bridge Printiny Co. v. Creen, 5 Q. B. D. 109. 848 Dri'Y TO OIISKIIVK OOOI) lAITH. Bk. III. ciin)). 2. liiiu upon it, j)liuiiie(l by means of ii<,'reeinents entered into before its fonnntion, and the real nature of which is ciuefullv concealed from every one except those who profit by tlicni. The frauds thus perpetrated are obvious when discovered; and the doctrine of fiduciary relation has been invented ur extended in order to defeat them. The following extract from the judf^nicnt of liord Cairns in Krlnuijer v. New Siniihrero Phoajthdie Co. (t) explains the posi- tion of a promoter very clearly :-- Lord Cairns in Krlanpcr v. Kcw Sniiibrcro Coinr^'O- " It is now iica'ssiivy that I sliouM stiit(> to your honlsliijis in uliiit position I understiuul tlin jironioti'rs to lie i)lact'tl with rclurfnci' in ihr I'onipiiny wliicli tlicy jiroposcd to form. Tlicy .stand, in my opininn, \in- donhtcdly ill a iidiiciary position. They have in tht'ir iiands tliu I'.naliiii and monidinj; of the comjiany ; llii-y have the power ol' dcliniiij,' iiow, ami when, and in what shtipe, and nnder what sujiervision, it KJiidl slait iiUn existence, and l)e<,'in to act as a trading' corjioration. It' they are dding all this in order that the company may, as soon as it starts into life, beconn, thronp;Ii its mana^'in<,' directors, tlie purcha.ser of the ]iroperty ol tln'iiisclvi-, the promoters, it is, in my opinion, incnmhent upon the i>roniotcrs tu tak'' care that in formin<,' the conijiany they provide it with an e.xecutive, that is to .say, with a hoard of directors, wlio sliall botli bo aware tliat tlie ]iri>- l)erty wliicli they are asked to Imy is the property of tlie promoters, ami who .sliall he competent and impartial judges as to whether tlie purcliasi' ought or ought not to be made. 1 do not say that tlie owner of |in)iu riy may not promote and form u Joint stock company, and then .sell hin pru- jierty to it, but I do say that if he does he is bound to take care that liu sells it to the C(,mpany through the medium of a board of directors who can and do exercise an independent and intelligent judgment on tlie traib- action, and who are not left under the belief that the property lieloiigs, int to the promoter, but to some other person." Commcnecment of tlie tiduciary relation. One of the greatest difficulties in connection with this sub- ject is to deteraiine when a promoter of a projected company begins to be in such a position as to be unable to make ii secret profit by a sale to it, or to persons acting on its behalf. On the oiie hand, it is quite plain that the so called fiduciaiy relation between a promoter and a company may exist long before the actual formation of a company by registnitiou er otherwise {u). On the other hand, it is obvious that soinetliing must be done beyond a purchase and resale to constitute such (*) 3 App. Ca. 1236. but one, and Bank of London v, (j() See the cases in the last note Tyrrell, 10 H. L. Ca. 2G. I'llDMoTKllS. 319 II rt'liition : something,' iniist bo done by tlii; promnti'i* to impose lik. III. Clmi). 2. upon Iiiiu till! (hit}- ol" protecting the interosts of those who iilliiiiiilt'ly compose the company. He assumes this duty if he iissiiines to net for them, or if he induces them to trust him, or to trust persons wlio nre under his control, nnd who are prac- ticiillv hims^df in disguise ; lie also assinnes such duty if he culls tiio company into existence in order that it may buy what lio litis to sell ; but he docs not assume such duty by lugo- tiatiu" with persons who have themselves assumed that duty uiid who are in no way under his influence (./•). A fraud by iiiia on them will of course vitiate any agreement based on the iViuiil, whether there is any liduciary relation between him and tlieiu or not ; but the principles now being investigated pre- suppose the existence of that relation, and a breach of the ol)ligrttions incidental to it, and no fraiul other than that involved in their breach. Ill dealing with any particular case care must be taken not Gonenl caution, to be misled by words. Owing to the ambiguity in the meaning of the word promoter, and the ditliculty of defining his exact relation to the company he procures to be formed, it is unsafe to say that any particular person was a promoter of a particular conipany, and to infer from thence, that he is liable to account to it us if he had been its trustee. The question in each case must be, what has the so-called promoter done to make him- self liable to the demand made against him ? What fraud or breach of trust has he committed or been party or privy to (,y whatever name he may be called or b}' whatever terms his illation to the company may be expressed. His liability, moreover, in such cases, is incurred by " fraud or breach of trust " within the meaning of the Bankruptcy act, and is not therefore terminated by his bankruptcy and subsequent discharge (,'). The position of a promoter tcj the company he promotes (x) Compare Albion Steel Wire Green, 5 Q. B. D. 10.0. '.'v. V. Martin, 1 Ch. D. 580, with (s) Emvia Silver Mining Co. v. the other cases noticed in the text. Gra«<, 17 Ch. D. 122 ; Kamskill v. (ij) See Lyduey, tfcf., Co. v. Bird, Edwards, 31 ib. 100. 33L'li.D.p.i)3; IVlMleij Bridge Co. v. ' .ii. auo 1>UTY 'I'O OlISKliVK (i0(il> FAITH. lik. III. c'lmp. 2. will be best uiulerstDod if llie followiiij,' propositions are Ioihh Ill 111111(1 : — 1. A sellor of propovtj' is nndor no obligation to infoiin the bincr how or when, or from whom, or nt what price or under what circunistanccs lie, the Hidlor hiiUHclf, acquired if. 2. An agent to buy cannot charge his principal a "ivntcr price than the agent pays, and if he does so his principid ciin either repudiati! the purchase and compel the agent in repiiy hini the price he, the principal, has paid ; or the principal can keep the property and recover from the agent the profit lii; has nnxde by the transaction. 3. An agent to buy cannot sell his own property to his prin- cipal without informing him of the fact, and if he does so, the principal can repudiate the transaction. Whether, in this case, the principal can keep the property and recover from the agent the profit he has made by the transaction cannot be regarded as settled (a). 4. An agent cannot in any other way obtain secret benefits for himself at the expense of his principal in any transaction withhi the scope of the agency. 5. A person engaged in forming a company is treated as under the same disabilities in these respects as if he were its agent. The cases illustrating these propositions, and their applica- tion to promoters of companies, are numerous and important ; but their details are complicated and infinitely various. Tlicy group themselves into four classes, viz. : — 1. Cases in which promoters have been acquiring property and forming a company to take it at an enhanced price. 2. Cases in which persons have sold their own property to a company formed by them to buy it. 8. Cases in which the promoters of a company have in other ways obtained secret benefits at its expense. 4. Cases in which the position of promoter has not been proved to exist, and in which, therefore, the doctrines applic- able to promoters have not come into operation. (a) See Cape Breton Co., 29 CIi. 1). TOf), noticed infra. i I'llOMOTElW. })51 lik. III. Cliap, '.'. S.'ct. 1. 1. Ct^m 1)1 irliich jtnDiKilfru lidif hccn dcqnirinti pyoperty and lormiini '^niuDiji Id tnkc it at an enliaiuril j^i'icc. Til this class oi ciises ii compimy is forincd in order to buy iiidiKriy for a given price. The price really consists of two nuitious ; one is what the property is fairly worth ; the other is wlint is called promotion money, and is enouj^h to cover the locitiiiiatc expenses of forming the company, and to put large ^mlls (if uinney into the pockets of the promoters. The owner iit'tlio property may or may not be himself a promoter; but he ''('ts tin money until the company is formed and money is raisi'd by the issue of shares or debentures. The fact that tin; lomiiany is being made to pay far more than an equivalent for what it gets is of course concealed, and the iu'st directors are in'onioters or perons procured by them, and the shares they tiiivc are in fact for out of the promotion money. The contrivances ti .i recourse is had in order to rob com- piuiies in this way without being found out, are innumerable. Tlu' following are the leading cases of this class, and they are iiii])ovtant enough to be noticed separately. In ///(7((,')(.s' V. Coiiiircrc (Ii), a company was formed to work Company cn- a mine, and was principally got up by three of the defendants ; leseivud i y it was proposed that a lease of the mine should be purchased ''"■"''^'"''*- liv the conipaiiy, and a lease to the company was executed by Conjircvc. the owner of the property for 25,000Z. This sum was accord- ingly charged to the company, but it afterwards turned out that lO.OOOL only had been in fact paid to the owner for the lease, and that the remaining 15,000L had been distributed amongst the directors. The three principal promoters of the company alleged that the property had been sold to them, on their private account, before the company had come into existence, that 25,000L was a fair price for the company to pay for the lease, and that the 15,000/. was only a fair profit on a re-sale, the original purchase being entirely at the per- sonal risk of the three. They said that the lease was taken directly to the company, and that the amount of the considera- _(M 4 lUiss. 5C2, and 1 R. & M. house, 1 ]l Sc .^f. 132, a somewhat ^'>^- Sw, also, FavcHI v. White- similar ciise. 352 bUlV To OBSKIIVE GOOD I'AITlt. 11 Alleged open sale by pro- icotors to company. r.eck I'. Kan- toruwicz. Bk. III. Chap. 2. tion money was stated to be 25,000/., with the kiiowledtie of Sect. 1. ' , tlie lessor, uii'l merely lV)r the purpose of simplifyiiiff tlie title. But it was adiijitted that only 10,000/. reached the lessor's hands, and that the 15,000/. had been divided amongst the defendants. A motion wa^ made that the three principal , defendants might be ordered to pay into Court such sums, part of the 15,000/., as appeared by their answers to be then in their hands, and an order to that effect was made. Another and very instructive case is Beck v. Kaiuoi-nincz(c), in which one projector sought to obtain a benefit at the ex- pense of the others, and they all sought to make a profit out of the company. In this case five persons proposed to pu''chase a mine, and to get up a company to work it. One of them, Kantorowicz, negotiated on behalf of himself ami co-adventurers with the owners of the mine, and agreed with the owners for a purchase from them, at a sum of 85,000/., and he represented to his co-adventurers that this sum was the least which the owners would take for the mine. In point of fact, however, there was an agreement between Kantorowicz and the owners, that if the mine was purchased at that price ho was to have 20,000/. for his trouble ; but this was unknown to the other adventurers and to the company which was afterwards formed. Upon the sup})ositiou that 85,000/. was the price of the mine, a contract for the sale of it at that price was entered into between the owners of the one part, and Kantorowicz and his four co-adventurers of the other, Part of the i)urchase money was to be paid in shares in the company proposed to be formed. Shortly afterwards a pro- spectus was issued, with a view to the formation of the com- pany ; and in the prospectus it was stated that a contract had been entered into for the purchase b}' the companv of the entire property for 125,000/., including all prehniiiiary expenses, and a premium to the parties who had incurred the risk and the responsibility of the original iiurchaso. The company was formed. The agreement between Kantorowicz and the owners was afterwards discovered, and a bill was filed by three of the committee of managem,ent of the company, on (c) 3 K. & J. 230. See, too, Ex parte Penier, 7 Ir. Cli. Kep. 256, I'lloMOTKllb. 353 lii'lialf of themselves and other shareholders, for the purpose Uk. III. Chap. 2. Sect 1 of compelling Kantorowicz to account to the company for the ~ •20,OOOL premium which he had received in shares from the torowkz. *"' vendors of the mine. On the part of Kantorowicz it was insisted, first, that he had an interest in the mine, and was a selling party, and that, therefore, he practised no fraud on the tiiur original adventui'ers ; and secondly, that even if the transaction could not be upheld as between him and them, the I omiiany could not complain, as he and the other promoters avowedly sold the property to the company for 125,000?., and the company had got all Ihey ever expected, or had contracted to have. But it was held upon the evidence, that Kantorowicz hud no interest in the mine, and that, as between him and the niher promoters, the transaction could not for one moment stand. With respect to the more difficult question which arose lutweeu Kantorowicz on the one side, and the company on the uthi'i', it appeared in the first place, that two of the original promoters were members of the committee of management. In this latter capacity they became, as it were, agents for the company, and were, as such, bound to buy for the company at as reasonable a price as possible, although in their cliaracter nf fjrantees they were entitled to sell at any price they liked. It also appeared that the 125,000?, at which the company was to buy was fixed by the committee of management, upon the ibsumption that 85,000?. was, in fact, to be paid to the vendors lA the mine, and that the difference between 85,000?. and 125,000?. would cover the preliminary expenses, and what was loiisidered to be a fair premium for the promoters. This prduium was alluded to in the prospectus, and was a premium of 30,000/., to be paid out of the difference between the 85,000?. and the 125,000?. Another premium, payable out of the ^0,000?. to one of the promoters alone, was never contemplated m drawing up the prospectus. Upon these grounds it was liild not to be competent to Kantorowicz to get a bonus of 20,000/., ill addition to his share of the 30,000?., and that living kept back the transaction as to the 20,000?., he ought to be considered as having joined the other four promoters in stiiiulating for payment by the company of a premium of w,000/., and no more. He in fact allowed them, in the exer- '■•^'- A A 854 DUTY TO OUSEUVE OOOD FAITH. New Sombrero, &c., Co. r. Krlanger. Bk. Ill, Chap. 2. cise of their judgment as to what was a right premium tn '— - demand of the company, to contract with the company for the 30,000?., and that was the contract which the Court lield ought to he performed as between the company and the promoters {d). Again, in The New Sombrero Pliosphate Co. v. Erhmjer (c), a lease of some property was sohl to an agent for a syndicate, i.e., a group of speculators. One of these speculator.s, on behalf of himself and the others, got up a company to Iniy tin- property from them. An agent of theirs entered into a pro- visional contract with a nominee of their own for the sale of the property to him, as trustee for the intended company, at the advanced price, to be paid for in cash and sliares. The company's memorandum and articles of association were pre- pared under the direction of the chief promoter. Then; were live directors. Of these two were abroad, and the others were all in fact nominees, and more or less under the control of the chief promoter; one of them was the person who originnllv purchased as agent for him and the other speculators. The agreement between this agent and the trustee for the uouipauv was alluded to in the articles of association, and al'^o in a prospectus published by the directors. This prospectus was in fact prepared under the instructions of the chief promoter. The solicitor of the companj'^ was the solicitor of tlie pm- meters. The prospectus stated that the provisional contract with the trustee for the company had been approved by the directors, .nd in fact the directors in this country had adopted it ; but they had in truth no discretion in the matter ; they had no independent advice, and one of them was the trustee for the promoters. Their approval was therefove a mere sham. Upon the true facts becoming known, the company repudiated the contract, and filed a bill to set it aside. The V.-C. Malius dismissed the bill, being of opinion that the promoters of the {d) The result, it is apprehended, would not have been different if the four promoters had insisted on keeping the company to the bargain for 125,000/., anil liad claimed to have the 20,000/. stipulated f(jr by Kantornwicz divided between him and tliLinselves. As it \v:is, tli y abandoned any iuterest thev niignt have in the 20,000/. to the cunipany, (e) 5 Ch. D. 73, and 3 Api'. t-'i 1218. See the extract from Loi.l Cairns' judgment in this case, n»'( p. 348. PROMOTERS. 355 company were not in such a fiduciary position towards it as Bk. III. Clmp. 2. to render it obligatory upon them to disclose that they were — themselves selling their own property to the company. But on nppeal, this decision was reversed upon the ground that the proraott s stood in a fiduciary relation to the company, which was their creature ; and were bound to disclose the fact that they were selling their own property to the company. Carlton. In The Phosphate Sewage Co. v. Hartmont (/), the promoters Phosplmto liad no title to the property they sold. The trustees of the Hartmont. company to whom they sold it were their own financial agents, and were paid a large commission by them out of the purchase money obtained from the company. The solicitors to the company were the solicitors to the promoters, and neglected their duty. The contract was set aside ; the so-called trustees had to repay the commission they I'eceived ; and all the de- fendants, uicluding the solicitors, were ordered to pay the costs of the suit. Bagnall v. Carlton {(j), a company was formed to buy some Bagnaii v. property at a given price, which was much larger than the price paid to the owner. The difference went into the pockets of persons employed by him to get up the company, which was formed for the purpose of buying the property. This differ- ence, however, less just allowances for expenses properly incurred in forming the company, was recovered by the com- pany in an action brought against those who had divided the plunder (/<). In this case the company brought an action to rescind the contract of purchase, which having regard to the fraud perpetrated on the company, would clearly have been set aside if that action had not been compromised. Such com- promise, however, did not affect the company's right to recover from the promoters the secret i)rofit which they had made at the expense of the company. One of the promoters was dead, but his estate was held liable for what he had received. Emma Silver Mining Co. v (/)5Ch. D. 395. (y) 6 Ch. D. 371. (A) The 1,500^. paid to the solici- tors, and soujjiit to lie recovered fmni them, was not [inid nut of the Grant {i), \isi% another case in Kmma Silver Mining (Company 1'. (inint. promotion money, see 6 Ch. D, 410. (t) 11 Ch. D. 918. See further as to the effect of bankruptcy, S. C. 17 Ch. D. 122, a?l^, p. 349, note (.:). A A -2 w 856 DUTY TO OUSKRVK GOOD I'AITH. Bk. Ill Sect, Lydney, &c., Company v. Bird. Chap. 2. which part of the purchase money paid by the company for a. mine was divided amongst the persons who took part in its formation, but who concealed from the company the fact that they were to have part of the purchase money. In substance they created the company and blinded it, and took advantage of its blindness to enrich themselves at its expense. In this case, as in others of the same sort, the promoters urged in vain that they were sellers ; they were also creating the buyers, and came under obligations to them which had been disregarded. The promoters were compelled to repay to the company the sums they had obtained by their secret arrangements, hut they were allowed all expenses fairly and properly incurred in forming the company. In this case the company did not seek any rescission of contract. Lydney <£• Wigpool Iron Ore Co. v. Bird (k), is another case of the same class. The company was formed to buy a business. One of the defendants took an active part in forming the company, and was one of its first directors. The purchase money was fixed by him, and it included a large sum which he was to retain for his own benefit. This fact was concealed from the company, but was afterwards discovered. He was compelled to refund it, but was allowed all expenses fairly incurred by him in forming the company. No rescission of the Contract of purchase was sought by the company. The other defendant was a jiartner of the first, but took no part in the formation of the company, except that he guaranteed the taking of a certain number of shares, nnd was paid for this guarantee, He was paid in fact out of money got from the company, but he did not know this, and he wns held not liable to refund the payment. The Whaley Bridge Printinfj Co. v. Green (1), noticed infra (class 3), is based on the same principles as tlie foregoing, and belongs to the same class of cases. Allowances made The allowances made to promoters in cases of this descrip- in theee .Ases. ^-^j^ ^i^ ^^^^ ^^^^^ ^^ ^^^ expenses they have in fact incurred; the allowances are confined to legitimate expenses ; and do not (k) 33 Ch. D. 85, revcrsin-i2. Sect 1. shares to be taken (j/i). Nothing can be allowed which would -• involve a inisiipplication of the compan3''s funds («). Sucli being the principles which the Court enforces, it No specific pcr- need hardly be added, that contracts of the kind alluded to in tracts tainted the foregoing pages will not be decreed to be performed by the J^'^J ^^"|* °^ company, even although the company's articles of association pruvide that they shall (o) . Any concealed acreement, more- ovtr, between a vendor to a company and its directors, to the effect tlmt they shall profit by the purchase by the company will entitle the company to repudiate its agreement with the vendor (^O- The right of the company in these cases is to rescind the Optimi of com- ,* , 1 , . , T'lny in sucii contract, or at its option to hold the property it has purchased, cases. i',ii(i to pay no more for it than its agent or trustee himself imid iq). But the right to rescission cannot be excrcistul if the property bought cannot be restored ; nor can the jiropiu-ty be retained unless the company is j^repared to pay, or has paid what tlie promoters paid the owner for it (/■). 2. Cases in ivhkh persons have sold their own property to a company formed by them to buy it. This class of cases is very similar to the last, but is distin- ;;iiislied from it by the fact that the promoters of the company buy and pay lor the jn'operty which they afterwards form a KUiipany to buy, and which they ultimately sell to it. The fact that the comi)any is buying from its promoters is Hut disclosed to the company or to such of its directors as do (m) Lfhaj Co. v. Bird, 33 Ch. D. ''■'i, >ee \\ !)5. The commissiou A\')\w[ in Vnvjmll V. Carlton, 6 Ch. l'.:!Tl,wouliiuot have been allowed if tlie company had not ottered to allow it. (") lb. (■') Miimrll V. Port Ttnnant, dc, '\ 24 Beav. 495. See, too, Ellis V. <-'olnm, 25 Beav. 662 ; Flanagan v. Gt. Western Rail. Co., 7 E(i. 116, a case of an agreement with a director. {p) Ex parte IVillia^ns, 2 Eq. 216. {q) See Tyrrellv. Bank of London, 10 H, L. C. 26. (?•) See Great Luxembourg Rail. Co. v. Magnay, 25 Beav. 586, and the cases in the next class. ^mw 858 DUTY TO OBSEIIVK GOOU I'AIXir. OoiniMiny v, lirookcs. I5k. III. cimi.. -J. not profit by the transaction, and on this ground the comnariv Sect, 1 . , ... i ^ can rescind the contract of purchase ; but if the decisions about to be referred to are correct, the company has no other remtdv. Consequently, if it cannot rescind, it is v/ithout redress. Tlic leading cases on this subject are the following : — Ladjwell Miuing Litdijwell Mining Co. V. Brookes (s). In this case the defen- dants bought a leasehold mine in order to resell it at a profit to a company which was to be formed in order to buy the mine. At the time of the purchase nothing had been done to form a company. After the defendants had bought the mine and paid for it, they agreed to sell it at a profit to a trustee for the in- tended company, and a company was formed to buy the pro- perty at the enhanced price, and four of the original buyers became directors. The company bought the mine and paid the enhanced pi'ice out of capital raised by shares placed by the original buyers, who in fact found the money paid in respect of the shares. The company was ejected from the mine by the lessor, and it then sought to recover the profit made by tliose who had bought the mine and resold it to the company. The Court, however, decided that the company were not entitled to this relief, because those who sold to the company were under no fiduciary relation to the company when they themselves bought it. The Court held that the only relief which the company could have been entitled to would have been to rescind the contract for purchase, and that as this was impossible, the eom- panj' could obtain no redress. The company was not in (i position to say, " when you bought this mine you wore acting for us; this purchase, although made by you, is one which must be considered as having been made by you for the company, wliich was afterwards formed at your invitation " {t). This case was decided in conformity with a previous decision of the Court of Appeal in the case of the Cape Breton Co. Cape Breton Co. (u). In this case certain persons bought a coal mine. A company was afterwards formed to purchase it from them at an enhanced price. One of the original pur- chasers was a director of the company. The company was Cape Breton Coiiii>!iny. opinion on the (s) 35 Ch. D. 400. (0 35 Ch. D. 413. (it) 26 Ch. D. 221 ; 29 ib. 795, affirmed on appeal under the name of Cavendith Bentinck v. Fmn, M App. Ca. 652. PROMOTEKS. 351) wound up ; the facts became known ; and at a meeting of share- ^k. III. chap. 2. Sect 1 holders specially convened in order to deteimine what should ~ be done, they resolved not to repudiate the purchase, but to keep the mine and to resell it, which they did at a heavy loss. After this, a contributory of the company endeavoured to make the director who was one of the original purchasers liable for the loss sustained by the company, and it was decided that he was under no such liability. The House of Lords decided the case upon the ground that there was no proof that the director's interest in the property was not disclosed, and no proof that it had been sold to the company for more than it was worth. But Pearson, J., and the Court of Appeal (r), decided the case upon the ground that although the company might have rescinded the contract, yet, that having adopted it, the director could not be made liable for any loss sustained by the company; because when the mine was originally bought, the purchasers bought for themselves and not for any company then in course of formation, and because it was impossible to ascertain the sum for which the director could be properly held responsible. The Court distinguished the case from Bagnall v. Carlton and others of that class, on the ground that in each of them the property sold to the company had been acquired by persons acting for a company then in process of formation, so that the company uhimately formed could say that the i^roperty was in truth lumght on its behalf. The distinction here drawn between a ("inpany contemi^lated by the buyers but not yet in process of fiiination, and a company, the formation of which has just mmmeuced, is very fine (y), the more so, as it was conceded tliiit the companj' ultimately formed may have been very liili'eient from that which the promoters were endeavouiing to trm when they became purchasers themselves. It is much to be regretted that the House of Lords did not express an opinion on the broad point on which the members of the Court / [i) it. Lords Justices Cotton and Fry ; Boweii, L. J., dissented. The majority thoui,'ht the value of the I'tiiperty could not lie ascertained, M'l fi. if tlie decision would have Ittn the same if they had thu'.i£[ht otherwise ; apparently not, see the judgment of Cotton, L. J., in Ex parte Taylor and Ex jiarte Moss, 14 Ch. D. 398. (y) See, however, 3 App. Ca. 1235, per Cairns, L. C. 1 , ■f -^fl^^il^B 860 DUTY TO OBSEnVE GOOD FAITH. Observations on thcHe ciiscs. ■ \ '■■>. 1 . Al, UH C: IH *' Bk. Ill, Chap. 2. of Appeal differed. The decision as it stands is difficult to Sect. 1. — . reconcile with others in the books {z), and seriously litnits tlie redress that can be obtained against fraudulent promoters. Notwithstanding the present state of the authorities, the writer ventures to submit that it i,s the breach of duty on the part of the seller to the company, and the resulting application of the company's money which gives rise to the right to relief in these cases ; and he submits that when a promoter («) sells his own property to a company at a profit, without disclosing the fact that what he is selling is his property, the company can at its option either rescind the sale or keep the property, paying only its fair value, and such further allowances, if anv, as may be just, and recovering back from the promoter the difference between such value and allowances, if any, and the sum he has managed to extract from the company. But of course the company must pay him the fair value of his pro- perty, and all just allowances ; and if it is impossible to ascertain this value, the transaction can only be rescinded in Mo, ami if it is also imj^ossiible to rescind then the company will h without redress (h). In Jiis view there is no difference in tht result between this class of cases and the last. 3. Cases in which the promoters of a company have in other ways obtained secret benefits at its expense. Promoters of companies are exceedingly ingenious in thi devices to which they have recourse in order to obtain money without being found out, from the companies they call int i existence. The principles, however, before expounded, are generally sufficient to defeat them. {r) Kimher v. Barber, 8 Ch. 50 ; Betttleij v. Craven, 18 Beav. 75 ; Great Lujcembounj Rail. Go. v. Mag- nay, 25 Beav. 580, see pp. 595, 0. See the uext class of cases, (a) The principle contended i'or is submitted to apply to all cases in which an agent sells his own pro- perty to Ilia pi-incipal wilhmit dis- clcsing the fact. (h) Ex parte Taylor, 14 Ch. H. 390. See Great Luxembourg Rv'- Co. v. Magnay, 25 Beav. 586, iiii4 observe that the hill was fniimil upon the assumption that the wholi' thing was to he set asiile, see ]'. 594. PROMOTERS. 861 other in tin ■ money I ill into I ed, ail' 1 Ch. 11. ■)86, aii'l lie wliol*^ L see 1'. In Emma Silver Mining Co. v. Lewis {c), a promoter who Bk. IIL Chap. ?. procured himself to be appointed metnl broker to the company e,;;;;;^^!,";,.^ ~" on certain terms which were disclosed, also managed to obtain Mining Co. r. „ , , , . , • 1 / Lewis. a large sura in addition out of the promotion money, which (as is usual), was added to and hidden in the price paid by the company for the property it bought. But he was compelled to refund what he so surreptitiously obtained. Whtkif Briihje Printing Co. v. Creen (il) goes a stej) further. Whaley Bii.lge In that case tlie company agreed to buy property for 20,000/., panV".*Gixcn. of which (by an agreement concealed from the company) 3,000/. was to be paid by the vendor to its pi'oraoter. The company had paid the 20,000/., but the vendor had not paid over the 3,000/. The company recovered it from the vendor upon the gi'ound that the company was entitled to the benefit of the agreement made by the promoter. There was no rescission of contract here, nor Avas it considered necessary. The principles illustrated by the foregoing decisions apply, Solicitors to if possible, more strongly to the solicitors of projected com- ^'^"^*"' ^ panics than to other persons. The relation of solicitor and client in cases of this sort is considered as commencing from the time when the solicitor first acts in any matter relating to the company ; and if he afterwards acquires property for himself imd sells it at a profit to the company, without the fullest dis- closure, the company can retain the property an .. compel him to refund the profit (e). Moreover, if the solicitor to the company is, as he frequently is, the solicitor to the promoters, and he neglects his duty to the company when he knows that the promoters are acting improperly towards it, he runs the serious risk of being held liable to the costs of jiroceedings against them (/) : but he ought not to be made a party if panius. (f) 4 C. P. D. 396, an action for damages. (lOoQ. B. D. 109. if) Tiji-rdl V. Bank of London, 10 H. L. C. 20, atlirmiii}^ mainly, but in some respects; varying the decree below, in 27 Beav. 273. The company bought only part of what it< solicitor had purchased, and the House of Lords lield that tlie com- pany had nothing to do with the profit made by reselling the rest of the property. (.'oini>are Baijnall v. Vnrlton, (i cii. 1). 371. (/) riiosphnte tiewaije Go. v. Havt- inont, 5 Ch. D. 394. See generally, re BlnnMl, 40 Ch. D. 370. 862 DUTV To OUSliltVK GOOD I'AlTir. m. Albion Stoel and Wire Co. V. Martin. (f^'v^ lit ^^' ai' ^^'i"^' ^' ^^^^ ^"^^ relief sought against liim is the payment of costs ig). 4. C08C8 in which the position of promoter has nut hcvn proved to exist. The most instructive case of this kind is the Albion Steel (ind Wire Co. v. Martin ; and its vahie consists in the contrast it affords with those ah-eady noticed. In the Albion Steel and Wire Co. v. Martin (//), two iwsoiis carried on a husiness which was afterwards sold to a coinpnnv formed in order to buy it. The defendant had long supplied the vendors with goods for their business, and at their rcMiiust he agreed to become a director of the company. After he luul so agreed, and before the company was formed, he contracted to supply goods to the vendors, and these contracts were not completed when the company took over the business. The business was taken over with all contracts pending at tlio time of its transfer, and the defendant completed the contracts into which he had entered, and was paid by the company of whicli he had become a director. An attempt was made by the com- pany to compel him to account for the profit made by him, at the expense of the company, from these contracts. But it was held that he was not bound to do so. There was no fraud whatever in the transaction ; the defendant had dealt with the vendors ; they had dealt with the company ; the company had trusted them, and he was not concerned directly or indirectljin the purchase by the company of their business, and was not Midland Rail. Co. v. Hiidmi,W Beav. 485 ; Great Luxembourg Hail. Co. v. Magnay, 25 Beav. 586. As to how (r) See generally as to the dutie.s of far they can be treated as triiftee- l)iiil:(;ToUs. 805 111 tlie )orty (if but it )IUU1 t'l tllClll. eeting.s, si'en'inj; osed ill iseil lui' rcise ut will be 1,16 Btav. \il. Co. V. is to how UUftecs It follows as ii nocossiiry consorjiiciico lluit directovs (»f a "•<• HI. Clmp. 2. ciiiiiiiii'V arc bound to accoiiiit to tbo conipaiiy ioi' all profits 11 1 ipi' ii"! I'ii'octors iiiiiHt iiiiiilc liy tlu'inselvea, by the employmont ol tlie assets ot tlu; accomit f..r profit ,,„«i.iuiy, and for all proHts made by thorn at the oxpenso of ;;';;,|« J'/ 1,^'"^- t!i(> CDiupaiiy, unloss they can show that the company, with a ';'"»r"ny '«»««*«• lull knowledge of all the facts, have agreed to allow them to ivliiiu such profits for their own benefit. The duties of directors begin from the moment they become Cnninicncrmcnt , . , 1-1 I 1 "f iliitios of ilirectors ; but persons who are lUrectors may have come under ,iiroct to tlie rule against not interfering in matters of internal management, Miii/ro,bookiii. r.. 9, § 2. (4 They had, for example, in Itii' ns V. Comjreve, 1 K. & M. 150 ; Ftti^rttv. Tniitchouse, ib. 132; but not in Albion Steel Wire Co. v. Martin, 1 Ch. D. 580. (0 16 Bear. 485. The judgment in 'Irs case is particularly valuable wit reference to the position of directors. 366 VVTY TO OBSKRVE GOOD FAITH. Profits made on issuing shares, Parker v. McKenna. Ilk. III. cimp. 2. to account for the monies derived by him from thtir sale Sect. 2. . • . The Court also hekl, tliat the defendant was not entitled to be allowed anj' part of such monies by way of remuneration fur his services, or on account of money disbursed by liim for tlu' company in a manner which he either could not or would not exi>lain («). In Parker v. McKcnna {.v), a banking company resolved to issue 20,000 new shares, and those not taken up by the old shareholders were to be disposed of by the directors at a certain price. The old shareholders only took up about one half of the shares ; and the directors made an arrangement witli one Stock that he should take all the rest at the price fixed, and pav for thena as he found i)urchr.,sers for them. He was unable to pay for them all, and he applied to the directors to take a large part of them off his hands. Some of them agreed to do so ; and each of the defendants took a certain number, sold what lie took at a price considerably higher than that at which tin? directors had been authorised to sell them, but only accounted to the company for that price. When, however, the share- holders discovered what had been done, they claimed to be en- titled to share all the profits thus made b}' the defendants, and their claim was upheld by the Court. It was conceded in this case, that if the directors had actually sold the shares to Stoek, and he had bond fide paid for them and completed his title to them, the directors (or any one else) might have bou A'^^ them from him and resold them at a profit ; but the arrangenient witli him was such that the shares had never become his ; the dutv of the directors to the shareholders Avith respect tc- the disposal of the shares had not been performed when they were taken otf his hands, and the shares were in effect under the control ot the directors as unissued shares when the defendants themselves sold them at a profit. ((() 111 D-nidoii v. hapiriid Gas Co., 3 B. t& Ad. 125, it was held that directors are not impliedly en- titled to any pay for their services ; and see, as to making iireseiits to dii'ectors, llossmorc v. Mnwatt^ 15 .lur. 238, V.-C. K. B. ; Hnfton v. mst Cork Bail. Co., 23 Ch. D. fi51, in wliich case the company li:iil ceased to carry on business. As t'l their uniiaid fees, see Ex ]Mrk Ck/c mn, 30 Ch. 1). 62!). (..) lOCh. S6. DIRECTORS. 867 Ai^aiii, the directors of a comjian)' are not entitled to retain jor tlieir own benefit any advantages they may receive by way of boiiu.'. commission, or otherwise on the sale of the company's Imshiess, oi on the amalgamation of the company with some other ifj), unless there is an agreement to the contrary between the company and the directors {z). In Gaskell v. Chambers (a), the directors of a company, which amalgamated with another onipany, received from the latter a considerable sum, the liarticulars of which they kept secret. In a suit instituted on belialf of the shareholders in the first company, this money was held prima fade to belong to them, and it was ovdered to be j,ai(l into Court (a). So, if on the formation of a company, its directors receive bonuses or other advantages from the promoters on a sale to the company, or on the adoption or ratification of a contract by the company, they can be compelled to account for what they so receive {b). Again, directors are not entitled to retain any shares or other binetit which may have been given them by the promoters of a (onipany in order to induce them to become directors or to quahfy tlieni for that office. In Nant-y-Glo v. Grave (c). Grave lonseuted to become a director of the plaintiff company, on receiving from one of the promoters five hundred fully paid up shares, and subsequently acted in that capacit}-. Some years after he Inid ceased to be a director, an action was instituted ufiainst him by the company to recover these shares or their ^ahie. The shares being at that time very much diminished in vahie, Grave was ordered to pay to the company a sum equivalent P.k. III. Clinp. 2. Sect. 2. Bonuses, &c. , on sales, &c. Ga.'ikel! i'. Chaiiilii'i's. Persons receiving shares, kc, fiJiii promoters as consideration for becoming directors. Nanty-Glo ■•. Grave. (j) Boston Deep Sea Fi.thiwj Co. v. A,L). The same rule will apply to taking shares at a discount in those cases in which an issue of shares at a discount is allowed by law (l). The position of promoters and others selling their own pro- *^'>lcs by dircc- . . » . ^ . tors to tho perty without disclosing the fact has been already investi- company, gated (/«)• The company can always repudiate such a transac- tion unless it is too late so to do ; but it is doubtful if the company can retain the property sold and compel the vendors to account for the profit they have made by the transaction (n). If rescission is not sought and no profit is shown to have been made there will be nothing to account for (o). An instructive illustration of this principle is furnished by In re Ambrose Ijake Ambrose Lake, Tk Copper Mininfi Co., Ex parte Tajilor and Ex parte Mass {})). *<=■' ^""'i-any. There a cost book mining company was converted into a regis- tered company. The mine was bought by the new company from the old company for more than it was worth, but was paid for in shares of the new company all of which wei'e allotted to the members of the old company. In effect what was pjiid by (f/) 1 Ch, D. ESO, ante, p. 362. CO L. R. G II. L. 189, reversing S. 0. 6 Ch. 558. (i) i^ec, ako, Dintne v. English, Is Eij, 524. (k) famphell's case, 4 Ch. D. 470. (') As to whidi, see infra, c. 3, L.c. §1- (hi) Ante, p. 357 ct seq. (n) lb. (o) Cave)idish Bentinck v. Fenn, 12 App. Ca. ()52, ani(, p. 358, was decided on this principle. (p) 14 Ch. D. 390. 15 B 870 I)k. IIT. Cliri],. Sect. 2. Ca'•■ itiid witli the s;iiictiun of a ma- j'TitvufsliarehiildTs. (') 8 E.[. 7, and 5 Cli. 703. See, ^^«, Joint Stod Discount Co. v. l'"''m, 8 E4. 381. Compare Tur- '("•""' V. J/((cs/i((//, 4 Ch. .37(5. (;/) 20 Beav. 435. (:.) See Padrr v. Lewis, 8 Ch. 103."), where tlie cnurt liehl there was no hiss causeil liy the iVmululeiit transaction. (ft) Xationnl Famls Assurance Co., 10 Ch. ]}. 118; Flitrroft's casn, 21 Ch. D. 519 ; Dmhtui d: Co., 23 Ch. D. 752 ; Ctford Ucnefil Ihdldinij Hoc, 35 Ch. D. 502 ; Lmh K.') Ex imrte Pclhj, 21 Cli. D. 492. See, also, Emilcfu-hl Colliery Co., 8 Ch. 1). :J^8. {hh) Faun: Electric Accnmitlator Co., 40 Oil. 1). 141 ; compare! infni, note ('*). (f) Ex part,' Pdly, 21 Cli. D. 492 ; liriison V. Wdncick and BirniiiKjliam, Hail. Co., 4 Ue G. M. & G. 711, and Ernest v. Crotisdill, 2 De G. F. & J. 175, which require to be studied together. See the cases as to Build- ing Societies repaying money 1)or- rowed, ante, p. 189. See, also, Hanlij V. Metropolitan Land, Ac. Co., 7 Ch. 427, reversing 12 Eq. 386. Gray v. Lewis, 8 Eq. 526, was de- cided on tliisprinciple, and, although I'evcTsed, 8 Ch. 1035 may be usefully referred to as iUustrating the prin- ciple. The niiinoy llicrc s(ni,L;litto he recovered never, in I'iict, beloiij;rtl to the conqiany. lis title was baseJ on a sham and fraudulent transac- tion. In (,'riiiii's V. Hiirrimit, 20 lieav. 435, the purclias^a' nl' the com- pany's jiroperty was lielil to iiavc had no notice of the directors' waut of autliority to sell it. As to onkr- ing defendants in such cases not tn pai't with the pr;)pcrty pemliii;,' liti- gation, se" Batih of Turhij v. "tto- man Co., 2 Eq. 3G6 ; ILnjdl v. Cum:, 2 Ch. 449. (rf) See Charitable Corp. v. Sutton, 2 Atk. 400, and Occrcml, Gurnaj, i Go. v. Gibb, L. R. 5 H. L. 480. _ (c) Evans v. Coventry, 2 Jur. N. ^. 557. ERKORS OF JUDGMENT. 373 adverse to them (/). Altliough the dh-ectors had a discretion J''k. HI- Chap. 2. 1 111 -1 111 ^*'<'*'- 2- as to wlint secuntj' they shouki require, they were culpably — negligent in taking none at all. A"nin, in Western Bunk of Scotland v. Bainhiq), directors Not stopping " ' company. were held liable for losses sustained by reason of their neglect, in ^ygj^te^n r.„,i. ^f not causing the business of the comiiany to be stopped, pursuant Scotland v, to a provision to that effect in its articles ; and, although in a iiiusequent English case of a similar nature the decision was (lirtVvent, that case was decided on the ground that the share- holders had sanctioned the continuance of the business (//). It is clearly established that directors who keep within the ^° liability for errors of limits of their authoritj', and act honcl fide to the best of their judgment. judgment (/), are not liable to make good to the company the losses which may result from their acts. Honest mistakes and errors of judgment made b}' directors when acting witliin their powers do not render them liable for losses thereb.y occasioned to the company. This was the real ratio decidendi in the great case of London Financial Association v. Kelk (k), in which all London Financial ^ " Association r. the previous authorities on this subject will bo found collected. Kelk. Ill that case a company sought to make its directors responsible lor large sums of money spent and lost in building the Alexandra Palace, and in obtaining shares in companies formed for carrying it on and for building on land about it. Such transactions were within the scope of the plaintili' company's memorandum of association ; they were known to and approved li} its shareholders; and the directors had acted honestly in the exercise of their powers ; and although the consequences ivere disastrous they were held not responsible to make good the losses occasioned by them. So it has been held, that directors acting bond fide and ivithin their powers, are not liable for a loss arising from a loan :/) S. C, 3 De G. M. & G. 835. setliuiaee of the decree on appeal. t'oinpiire Oremid, Guniey, it- Co. v. ''"Mil/, 4 (,'li. 701, anil Orerend, fknmj, d' Co. v. Gibb, L. R. 5 II. L. ^0, ,ihere there was no obligation t'liike any security. (;;) Cited in 4 Ch. 381. 'i) Turquand v. Marshall, 4 Ch. 3"6, reversing (i Ef^. 112. See, ako, Lcthbridge v. Adams, 13 E([. 547. (i) See as to what aniounl.s to acting bond fide, Xat. Funds Ass. Co., 10 Ch. D. 118; O.rford Benefit Build. Soc, 35 Ch. D. 5G2 ; Faure Electric Accumulator Co., 40 Cli. D. 141. (k) 26 Cii. D. 107, see p. 144, noticeil ante, p. 200. 874 i;i!l!UKS Ul' JL'DtiMKNT. In comproiiiisiiij claims. IJk. III. Cliap, '_'. to a I'o-ilirector who had died insolvent (/) ; nor for losses Sect. '2. . 1 , 1 • 1 • 1 • 1 1 1 occasioned by purchasni},' a biisuie.ss whicli they knciw to bo in- solvent at the time of purchase (m) ; nor for omitting to luko mortgage securities to cover the amount of insolvency (»). X,)). are directors acting hand fule and within their powers liaMij to refund to the company sums paid by way of connnissidn iiiid promotion money, to persons other than themselves, altlioui,'li such payments may have been made for very iiiadc(iimt(' considerations ((')• ^Moreover, if judgment has been obtained against a com- pany for a large sum of money, and the directors, instciul of appealing, hand Jidc compromise the matter by paying less than the sum recovered, they cannot be compelled to refund to tho company what they so pay, although the judgment agahist tlie company may have been erroneous {p). At the same time directors must attend to their duties and not place undue reliance on the other servants of the coniiiiiny. I c-iis Kstatc Co. Thus in Leeds Estate Co. v. Shepherd {q), directors who had paid dividends out of capital, relying on the halancc-sht'ots prepared by the manager and certified by the auditor, wore held liable to make good the money so paid away. The liability of a director for the misapplication by liim of the money of the company closely resembles tlie liability of ii trustee for a breach of trust, and is indeed often designated as such. The lial)ility is not barred by the statute of limitations (;•); it is not terminated by death (s) ; nijr by bankruptcy {t). Trusting to (illiors. Li.iMlity as for brcacli of trust. (v) 3(i Cli. 1). 7S7. It sliould lie notit'od tliat llir IjiiLiiict-slieft in this cii.sL' WAS not i)rcpaiv(l iiiaocuiil- ance willi tiic aiticic.-i uf assuciatimi. Tlie case Ls also valualik- as sliuwiiiL,' the duties of an aiulitur. CoiiiinUf (/) Taniuand v. ihtrshnll, 4 C'li. 3T(i, see p. 380. (»,') Orcn )kJ, (lUrncij, <.[• Co. v. Gihh, L. R. 5 H. L. 480, allinuing Urerend, Gavnrii, <£• Co. v. Gunifij, 4 C'h. 701. (») lb. Compare Erans v. €o- vcntrij, 8 De G. M. & G. 835, cl. (5 of Iknham <£• Co., 25 Ch. 1). 752. the deeree on appeal. (/•) U.rfunl IJcmJit Buihliiuj^oCi'yj (()) Uiitrnd ExchaiKje Bunk v. Ch. D. 502 ; Flitcmft's ivsc, 21 ik Iloriur, ',) Va[. 480. Cuni])are (iiite, 510, see j). 537 ; MttroiiuUtun Bml notes (//), {hh). V. lldron, 5 Ex. 1). 319. See now [jt) See I'urlxr v. Lewis, 8 Ch. 51 & 52 Vict. c. 59, § 8. 1035, and the remarks of Jessel, (.s) Hamsldll v. Kdiranh, 31 Cli. M. R. in Fond of Dean Cual Minituj 1). loO. Co., 10 Ch. ]). 450 ; and IkitWs case, (t) lb., and see Em.ua Silnr 8 Ch. D. 334. Mininn Co. v. Grant, 17 Ch. D. 12-'. MAUILlXy OV CtJ-DlllKCl'UUS. 375 In KniiiH V. ('nrciitr!/ (it), d'nvciovH were cliargt'd with in- I'-i^. Hi. (Jliap. 2. terest at 4L porcent. on tlu) inoiicy of tlio company improperly , . . ,11 , . ' . . ' IiitcrcNt clmrKoil applied liy them in paying tiiomsclvos siihiries, in piiynif? „j,Min.stiliioctura. (livideiuls out of capital, and in haying up shares: and in Kvans »•. other cases when they have been cliarged with assets of the ""''" '^^' company which they have misapplied, or with prohts made by tlieniHclves, to which the company is entitled, they liave usually Ijcen charged with interest at 4 per cent. (./). Litlbilitics of cu-dircrturii. A iliffioult question which arises with reference to the Liaiiility of liability of directors is the extent to whicli each is liable for the acts of each nets of the other. The folldwing appear to be the principles "'''"^''' iipplicahle to this subject : — 1, All those directors who arc actually implicated in mis- applying the company's money ((!ven although they only sign chequos prepared by others), are jointly and severally liable for the losses arising therefrom (//) : c.r/., where they have im- properly piiid money to promoters (-?), preliminary expenses (a), dividends out of capital {!>). So where they have paid up shares iiftlitir own out of the monies of the company (c) ; and where they have allotted to each other, as fully paid up, shares which are not paid up {(J). '2. Directors Avho really know of and sanction such misappli- cation are implicated in it within the meaning of this rule, although they do not actively take part in it {c). 00 8l)eG. M. &C!. 83"). (/) See Jiiint Stock Dixcount Co. V, Bmrn, 8 £([. 407 ; Parker v. .M'fiiiid, 10 Ch. 123 ; National Fvwb Ai^simmci' Co., 10 Ch. D. 118 ; Flikroff8 o(,sf, 21 Cli. I). 519 ; U.r- kd Benefit Huilil. Son., 3,-) Cii. 1). 502; Lmh Estate, dr. Co. v. Slup- /'in/, 36Cli. 1). 787; Faurc, d:c.,('o., 411 Ch. D. 141. Even T) p. c. lias I'ceii alluwi'd, Akxandra I'aluen ('j.,21 (Jh. D. 149 ; Denham .(• Co., 25Ch.D.752 ; Oxford Benefit Build. &c,, nhi siqmt. (i/) Joint Utock Discount Go. v. Brovrn, 8 2c[. 381 ; Land Credit Co. V. Lord J'h <ar*c I'dly, 21 Cli. D. 492. AikI .seeiM?ov , ,Cr. t'o.,4()Ch.D. 141. («) Kniji'Jield Collierij Co., 8 Ch. I). 3^8. (//) Lcixh, dr. Co. V. Shei)hcrd, 36 Cli. n. 1^7 ; Oxford Ben. Build. Soc, 35 ib. 50^ ; Flitcroft's cane, 21 ib. 510 ; Nat. Funds Ass. Co., 10 ib. 118. ((•) Joint Stock Discount Co. v. Brown, 8 E(|. 381. (d) Carriaeje Co-operative Supply Assoc, 27 Ch. D. 322. (c) La)id Credit Go. v. Lord Fcr- 876 LIABILITY OF CO-DIRKCTORS. Bk. III. Cliap. 2. 3. So lire directors wlio know of the misrtpplicfttion, but Sect. 2. . , , . . take no steps to prevent it beyond writing a letter of dis. approval (./'). 4, ^Vllere their liability is to nocount for moneys of the company improperly received by them, they are only Keveruliv liable for their own receipts, and are not jointly and seveiiiHv liable for each otlier's receipts (//;. Bnt even in this case their liability is joint and several if there has been a joint receipt by them all, and then a division amongst themselves of wliat they have all received ; or if they have all been implicated in .some joint breach of trust resulting in profit to them all (li). 5. It has been decided that a director who is not cotjnisant of a breach of trust committed b}' his co-directors, iiiul who takes no part in it, is not liable for it (/). This point, liow- ever, involves the question, whether a director is not bound to make himself acquainted with what his co-directors are doing, and to take such steps as may be in his power to pre- vent them from doing wrong. On this question opinions differ, and it can scarcely be considered as settled (/.). Mere con- structive notice, however, is not enough to hnpose liability (/). Moreover, if (as often happens) the con'titution of tlie com- pany is such as to justify a director in leaving certain matters to his co-directors, or some of them, he is justified in trusting them with such matters, and is not responsible for breaches of trust committed by them and concealed from him («()• lUitin other cases his irresponsibility is by no means so clear (//). (5. Nor is a director liable for breaches of trust connnitted moy, 8 E(i. 7, and 5 Cli. 7G3, where the snb-ioiuinittee were the pei'80u.s more innuediately to blame. (/) Joint Stork ]>i.icoitnt Co. v. Broun, 8 E([. 381, and see Eamslcill V. Edwanh, 31 Cli. D. 100. ((/) Parker v. McKenna, 10 Cli. 9(5 ; General Exchange Bank v. Hor- ner, 9 Ell. 480. (/i) oJford Benefit Buikl Soc, 35 Oh. D. r)02 ; Carriage Co operative Supply Angoc, 27 Ch. D. 322. (i) Joint Stock Discount Co. v. Brown, 8 Eq. 381 ; Athurd v. Mam\, 20 Eij. 22o. {k) Compaie tlic jndijnient of the M. E. in the Land CreJit Co. v, Lord Fennoij, 8 E{[. 7, with tiie Li-t cases, and see Turquand v. Marshall, 4 Ch. 385. (/) Hallmark's case, 9 Ch. D. 329, and see the next note. {m) Denham A Co., 25 Ch. D. 752 ; Land Credit Co. v. Lord Ferrmj, 5 Ch. 763, reversing on thi:j point, S. C. 8 Eq. 7. (h) See Leeds Estate, ). Tliat powers reposed in directors are regarded as being in Puwcrs of dircc- . , , , 1 I'll 1 / tills trt'iited fts the imture oi trusts, is clearl}- shown by Onhfii s C(i>ii' {}>), trmiH. ill which it was held that a director could not exercise his ^'I'^ert's case. power of making calls for his own benefit and without regard t(i the interests of the company : in that case a call was postponed in order to enable a director to transfer his shares, and a transfer by him in the interval was held invalid. There are other eases which show that directors have no right to favour one set of shareholders more than another ((/) ; and (hat powers of accepting surrenders of shares and of forfeiting shares (r), as also powers of ai)proving transfers of shares (s), and of paying preliminary ex[)enses (t), mnst be exercised hond lide for the purposes for whidi they are confei'red. Ikfore leaving the subject of the liability of directors to KiTect of acqui- niake good assets of the company improperly lost or parted <=>*'^'="'="^' with, or to account for profits made by them at the expense vi the company, it is material to consider whether the share- holders have acquiesced in what has been done or not («)• Cases indeed may occur where their acquiescence is imma- {") Furent of Lean Coal Mining t\, 10 Cli. L). 450. See A^'Ji urd v. .V.(*.», 20 Eij. 225 ; Timjuanil v. MarAttU, 4 C'li. 385 ; Ju-ans v. Co- i-'ntnj, 8 De (i. M. & V,. 835, .lecree tl. 2 ; but observe the Seoteli cases cmtm there cited. And see Jackson V. Mmnter Unnh, 15 Ir. L. R. 35(i. (/') 5 Cli. 5n<) :,ce, also, %/,m' oiov, 13 Eij. 2.')5, as to paying calls ill lulvaiiLi', lunl then taking tlieiii I'iick liii'I'ce's. And compare I'lmli; M;m and U'lnitc's case, 9 Ch. 1). 322. (?) rdchanhon v. Larpcnt, 2 Y. & C. C. C. 507 ; Harris v. Tlic North Ikvon Hail. Co., 20 Beav. 384. ((•) Infra, cc. 5 & (i. (.s) Bennett's case, 5 ]). M. & G. 284, p. 2!)7 ; Gresham Life Assurance Soviet 11, 8 Cli. 441) ; Mojfatt v. Fanpi- har, 7 C'li. 1). 5!>1 ; Fanre, ;ntly in- {d) 31 Ch. D. 100 formed of the fact?. (/)) National Fand.-< .!.«. (>., 10 Ch. D. 118. ((■) See Aslnird v. Mamii, 20 lv|. 225, and Ashurst v. Foidn; ib. A •lirci'tor who was only present wlun the transfer was formally a\i\m\\i llICillT OI DIIUX'TOUS TO INDKMNITV. 879 ilirector wlio hud l)0('n coiiipcUcil to niiikc j,'oo(l money of a Hk. in, cimii. 2. coiiiimiiy which had hcoii udviviicod on iin niipropor sccnrity siu'il Ills co-dii'L'clorH for contiibntion ; he was held entitled to relief nf,'ninst those directors who hud joined in the n»is-ai)pli- ciition and against the estates of such of them as were dead ; but not as a{,'ainst one of them who had merel}' eonfirnicd what liiul previously h(>en done (c). The maxim that there is no (•oiitriliulion amongst wrongdoers is seldom npplicalilo to this I'luss of case ; but if all parties have heen guilty of actmil fraud (irof a wilful breach of the law, no relief will be obtainable by siiuie against the others in respect of their fraudulent or illegal triuisactions (/)• , tllClll- I' the uised or the as not tlnl to 10 llllll 11 liiiii 20 Ivi. ik A ■lit wlll'll coiniiaio SUCTION HI. -OF THE lUailT OF DIRKCTORS AND OTHERS TO IXDK.MNITY. The right of partners to contribution in respect of their liabilities and losses will be found investigated in the volume oil I'artnership (;/). Wherever there is conniuinity of profit and loss there must be a right to contribution in respect of tliose transactions the profits or losses of which have to be slian.d. Consequently, if a member of a company is compelled to pay more than his share of a debt of the company, he is entitled to contribution from the other members. In some eases this riglit is expressly conferred by statute ; in others it I'ests on express agreement ; but the right exists independently 'f express enactment or agreement, although it of course may l.'C modified or even be excluded in particular cases by special emietment or agreement. Ihc right of a puldic officer of a banking company to be Right of sliarc- iiiileiiniilicd by the members of the company against judgments |3emnifiVr "btaiiied agiiiust himself is recognised by statute (//) ; and the '■*"-'*'"^' J"''g- ■ 1 ... . ' iiieiits, light ot each individual shareholder, against whom execution may hiive issued for a debt of the company, to indemnity from ■'he eouipuuy, or to contribution from his co-shareholders, is (') tsee the. lasjt note but one. if) See Tartn., 377 ct scq. (ij) Partii., .3(57 ct seq. (/i) 7 Geo. 4, c. 40, § 14. 380 CONTRIBUTION AND INDEMNITY. Bk. in. Chpp. 2. also placed beyond a doubt by legislative enactment ((), excei)t in the case of companies governed bj' the Letters Patent act, 7 Wni. 4 & 1 Vict. c. 73, which is silent upon this poim. This act provides for limited liability, but does not enact tliat if one member of a company governed by it pays more tliun his share of a debt of the company, he is to be reimLnrsed by the company or the other shareholders ; but his right ti sucli indemnity or contribution is nowhere taken away, and may therefore b>i assumed to exist by virtue of general principles not toiiched hy the stntuto. In registered companies this particular question cannot arise, as execution cannot issue against individual sharelioldeis on judgments obtained itgainst such companies. The rights of members of companies to contribution seldom arise until the companies are being wound up : and for fiutlicr information on this head the reader is referred to Book IV. The rights of directors, however, require special notice, mul may be conveniently examined in the present chapter. Directors of a company are both members and also agents and trustees. As members, they are entitled to contribution in respect of such deb^ and liabilities of t^ie company as tlioy may be compellable or have been compelled to pay in that character ; and as agents and trustees they are entitled to be indemnified by the company against all losses and expenses bona fide sustained and incurred by them in the exercise of the trust reposed in them. But if directors exceed their authohtv, and thereby incur loss, such loss must be borne by tlioni ami not by the company, unless the company ratifies what they have done. But even in this case one director may be entitled to contribution fro'u his co-directors as has been already seer. ^«). The cases illustrating these general statements will be ex- amined presently, but before proceeding to notice them it is requisite to allude to certain decisions whir'- tend to show tinit where directors of a conq)any acting hoiidjidc and t( the be>t of their judgment, advance money in order to carry on the business of the company, and spend the money for that pm- (r) 7 Geo. 4, c. 40, § 14 ; 8 & !) ami 7 & 8 Vict. c. 113, § 14. Vict. c. 16, § 37. See, also, the re- {k) See ante, pp. 378, 379. Right of direc- tors to contriVpii- tion anil iu- deiunily. Directors ^u'ting lioiiil litlc, but boyoiul tlieir aiitliority. pe alod arts, 7 & 8 Yit-t. 10, vS (57, X -^ GERMAN MINING COMI'ANy's CASE. 881 pose, tliev are cntilled to be reiniburscd by the company ; ^^- ^l^- Cliap. 2. ' ' . Sect. 3. altliongli tliey had no authority to borrow money, and could lot have rendered the company liable to third jiersons for iiioiiey lent on the credit of the company. ' Upon this subject the case of the German ]\Iiniiifj Com- German Mininn paiiu (/) is the leading authority. It was there decided that ^'""P*"!'^ <='*8«- directors who had no power to borrow money on the credit of the company, but >vho nevertheless did borrow money, and themselves advance money, and Ikiiu'i fide apply the whole for the benefit of the company, were entitled, having themselves ivpiiid the money borrowed, to be reimbursed by the shure- htiiders the whole amount borrowed and advanced. The circumstances of this case were somewhat peculiar. The part- nership was a mining partnership ; it was absolutely necessarj' to work the mines ui order to preserve them from rapid de- ttrioration and destruction ; the directors had ostensible power not only to carry on the mines, but also to carry them on or. credit ; the money borrowed and advanced was wholly applied in pining miners' wages, and other expenses necessarily in- cnrred in carrying on the works, and so preserving the mines ; ;nid the sliareholders were kept informed of what was being iloiic. 'I'hc money borrowed and advanced was in fact applied in dischiu'ging debts for which the com])any was or would have 111 en legally responsible ; and although it by no means neces- sarily followed that those debts were not incurred improperly as between the directors and the shareholders, yet the iuU information which the shareholders had of what was being dune, precluded them fnnn saying that the debts were impro- perly incurred. Althougli, therefore, the company was not liable at law to repay the money borrowed, the mode in which that money was applied, coupled with the acquiescence of the shareholders in the course pursued by the directors, entitled tlicm to bo reini\)ursed the money they had advanced. This case paved the way for others which have gone far beyond it. In The Xoncich Yarn C()mp(nn/''s case {m), the company's Ex parte Bijj- 1 , , , ' . . ,. ' . >iol. finiouiit of their shares in the capitiil of the coinpnuv ; aiKi there were certain provisions for increasing tliat Ciipitiil, iiuil for borrowing money on mortgage of the eompany's landc! pro- pert^'. The capital being all expended, the directors, instead of raising money by increasing the capital, or liy nKn'tgnffo, from time to time borrowed money of a bank, and applied tlie money in carrying on the business of the company. It was hehl that they were entitled to charge this money against tlie company, although the consequence was to render each sliare- holder liable to a considerable extent beyond the amount of his share (//). Baker's case. In '^aJrr's case (o), the V.-C, Kindersley held that a dirtetor of a cox,i[ .. y gc rned by 7 I'v 8 Vict. c. 110, was iidt ontitlnl to stand as a creditor against the comi)any by virtue ut' ;i debenture issued to him by the company, fm* the loan liad not been confirmed as required by that statute (j>). Ihit His Honour said : — "But altliou.i;li, for want nF conrirmaticn, tlu; conlmct is not liiiiliii, upon the company as a contract, still Mr. IlaLrr may Tic cnlitlcl to ivcnvci the money, it ho can show that it was duly ajiplii'd iu rarryiiij,' on tln' business (if the cunqiany. Tor, if a iliiector, linilin<,' that it is iuci.ss;uy tm the carrying on of the business of the Cduipany that goods should be jnu- chased, or that wurknien should lie employed and wages paiil, or that otluH' disliursenients shduld be made, and that there are no available i'unds of tln' comjiany at their bankers, should, out of his own pocket, advance the money necessary to carry on the business, and it was applied accordin;,'ly, he would have a right to recover that money; and, in my npiniim, siuli a transaction would not be a contract within the meaning of tiio 29tli section. " Upon the .idiolc, I am of opininn that the claim of Mr. Iktln; by virUii' (n) Is is very dillicult to rccnucile the company's deed in Tlir Xonrich Yarn ConqMtnfs cast' witli tlie no- tion that the directors had, as be- tween themselves and the share- holders, power to liorrow in any other »vay than that pciinted out iu the deed ; and yet if tiiis were not so, the decision ought to have been against the dii'cctors, as iu the case of Tlic IFarcustcr Corn KjcImixji', ."B Dc U. M. & (i. ISO, and i!v s Vict. c. 110, rcu('crcd contracts wiili director.s iuva'id, unless confiriin'l by the company. Tliere were soiiir exieptions. ADVANCES BY DIRECTORS. 383 „f till' contract, must be disallowed ; liut he must be at liberty to establish Ilk. III. Cliap. 2. ,1 I'lim I'of so much of the sum iu (juestiou as he can slio'Y to have been ' "° ' ' miipcrlv in)[iUi'd Tor the imrposes of the company." This case was followed by Tmup's case{<]), and JJoa/'c's Troup's case. citsc (/•), in both of which the shareholders of a company were Hoare'a case. held liable to reimburse the directors a sum of money borrowed liv theui without authority, but applied in the construction of the works of the COD 11 'luv IwLunidcs V. Tlic (iarnctt and Mosdcy Mlnini/ Company (s), Lnwmles c Qar- ' '. uett iiiul Moseley mlvances were made by a du-ector, and were applied ni paymg Company. debts of the company; the sliiircbolders were held liable to repay the advances, although they had not been sanctioned in tlio nmnuor required by the regulations of the company re- specting the borrowing of money. Those decisions are apptr.mtiv uased upon the ground that ^Wrvations on directors do not exceed the I:mii:i of then- trust by borrowing cases. mid udviUK'ing money bond fide for the purposes of the com- piiiiy, altliough the borrowing may have been an excess of iiutiiority. But it is difficult to see how that which, as between the directors and the shareholders, is a clear excess of authority, ciiu us between the same persons be deemed warranted by an}' trust. Nor is it easy to assent to the doctrine that where i-liuroholders have anxiously limited the powers of directors w'Ai respect to raising capital and borrowing money, there is no liroudi of t'.'ust on the part of directors who persist in carrying on the bu Miiess of the company on credit, when the capital of ihe coui[Mmy has been expended, and its borrowing powers liiive been exhausted. It may be urged, that as, if gain had resulted from the out- lays made by tlie dire otors, the shareholders would have had the benefit of it, so it is only fair that it' h)ss has unfortunately eiisiu'd tli'y' should sustain that hjss. ]>ut in answer to this, tlie sliiireholders are entitled to sa}', " As you chose to act ^'illi.iut authority, it rests with us to adopt or repudiate what vuii have done ; a\id we are not to be deprived of our riglit of repudiation, on the ground that if we elect not to repudiate your rtcts, we shall be bound to indemnify you." Neither has {■[] 21) bcav. 353. (/■) ,30 Ik-av. 22i). (.s) o N. U. GOl. 884 CONTKIBUTION AND IXDEMXITY. Bk. III. Chap. 2, Sect. 3. Observation on judgment in Baker's case. Comparison <)f tlie foregoii.g cases with others. Re the Worcester Corn Exchange Company. the maxim, qui scntit commodiim sentirc debet ct tmua, auv application ; unless the shaveholilers had some oppurtuiiitv either of ohjectiiig to the outlays before they were made, (ir ,if rejecting the benefit and the burden at some subsequent peniid, If the shareholders, having had an opportunity of objectiu" Id the proposed outlay, did not object ; or if, having had an oppor- tunity of rejecting the benefit derived from the outlay, tliev have declined to do so, then, indeed, the maxim may apph ; but in the absence of any such opportunity it is impossible io hold them liable to indemnify the directors on the ground of having had the benefit of the ex]>enditure. No hability can Ito established on this ground, unless it is to be held that a bfnetit is to be paid for, because it cannot be got rid of. ^Vitll reference to the extract from the judgment in B(dci''s case, given above, the writer ventures to observe, that althouj^l; the doctrine there laid down is apparently warranted by what fell from the Court in the case oi'.l'hc German Miiiiii'i Coiiqmnji, yet, as already pointed out, the actual decision in that case by no means involves the necessity of holding that as between directors and shareholders the liability' of the latter is to be determined by the benefits they have received rather tluui bv the powers which thej' have conferred. When directors who have no jiower to borrow money find that the business of the company cannot go on without borrowing, they ought to dis- close the truth to the shareholders. It cannot be successfully maintained that directors may, if they honestly believe it to be for the benefit of the company, advance and borrow money to an unlimited extent, and expend it in attempting to keep the company on foot, and then, having failed, make the share- holders, at least in unlimited con; panics, pay for the experi- ment. The decisions noticed above must be contrasted with other cases. In the Worcester Corn Exchange Comj^auy's ease (t), a com- pany was formed for the purpose of building a corn exchange. The deed of settlement of the company limited the amount oi each shareholder's subscription, and authorised the directors to (/) 3 De G. M. & O. 180. ADVANCES By DIUECTORS. 385 create new shares and to raise money by borrowing, under l^!'- HI. Chap. 2. Sect. 3. certain restrictions. The capital of the company being ex- pended, and more money being required, the directors advanced money tlieraselves, and expended it in payment of debts of the company. They also, but in excess of their powers, borrowed money of a bank which had notice of the company's deed, and tluU money was similarly expended. It was held that the directors were not entitled to charge the shareholders, either in respect of the advances or in respect of the bank debt, bi'vond the amount of the capital which each shareholder had agreed to subscribe. Again, in Ex parte Cropper (u), a committee of directors Ex parte charged with the winding-up of a company, was held not entitled to be repaid by the company, expenses incurred in endeavouring to obtain the passing of a public bill pending in Parliament, for facilitating the winding-up of the affairs of insolvent companies generally ; for to support bills in Parliament was not within tlie scope of the committee's authority. Tliese decisions are strictly in conformity with the sensible rule that agents are not entitled to any indemnity from their prhicipals in respect of unauthorised expenditure ; and in the first edition of this work the writer ventured to express a hope, that this rule, so essential to the protection of shareholders against directors, would not be frittered away ; and that the principle of The German Mining Company's case would not hv extended. That hope has been partially realised, for all attempts to extend that principle have failed, and its practical application is now confined to cases where the money has been applied in discharging debts for which the company was liable, or for carrying on the legitimate business of the comjiany (j:). Even when thus restricted, however, it must be borne in mind that debts for which a company is liable may as between the (lirectorj and the shareholders have been improperly contracted 1}' the directors ; and in such a case the dii-ectors ought to («) 1 De G. M. &. G. 147. U) i'^w the cases in the next note, ■'ii'l iV parte IVillutmsoii, 5 Ch. 309 ; L'ijrk ami Youglial Kail. Co., 4 L.C. Ch. 748 ; Hill's case, 9 Eq. 605 ; Davis'' case, 12 E<|. 516 ; TJie Catholic Pahlishincj Co., 10 Jur. N. S. 193 ; and ante, p. 235 et seq. C C 886 CONTRIBUTION AND INDEMNITY. Bk. Til. Chap. 2. Sect. 3. Limits of the principle above discusseil. 1. Wiiero iiiiiiioy is raiseil fur iin unaiitluiritieil purpo.so. Kent licnefit BuiKliiij,' Society. 2. Wliore the right to indem- nity is expressly restrictcil. (JilLan v. Morrisou. indemnify the shai'eliolders, and not the slmroholders llio directors. Notwithstanding the length to which tlie courts have gouo in the cases observed upon above, directors Avho borrow nioiipv without authority, and apply it to purposes not fiilling witliiii tlie scope of the company s business, are not entitled to W reimbursed by the shareholders. This is well shown by tlie case of The Kent Bencjit Buildliuj Socidy (//). There the managing committee of a benefit building society exceeded their powers by purchasing land, and by borrowing the moiuy to paj' for it. The repayment of the money was secured In- a mortgage of the land i)urchased. The society was ordered to be wound up. The mortgage securities were realised for less than the amount due upon them, and the members of the committee had to make good the difference. Thoy sought t.i prove the amount paid by them as a debt against the society; but it was held that the society was not liable. The fact of the borrowing appears to have been brought to tlie notice of the society at a general meeting, but there Avas nothing to show that the acts of the committee had been sanctioned hy all the members of the society' ; and to buy land was not within the scope of the objects of the society, and was iiltogether nltra vires. Again, the right of directors to indemnity, if expressly con- fined aiul limited, cannot be extended beyond the limit thus expiwsly set. The two following oii>es illustrate this. In GilluH v. M<>rri»)n (c), a eoiiipain' was foniied for pur- chasing lau>J in Segovia, and establishing h colony there. It was agreexi at a meeting of the directors and proposed sliiuv- holders, that an expedition sin uld proceed to Segovia, to examine and report upon the land which it was proposed the company should punliasc ; that the expense of tin' expeditiui. should not exceed 1200/. ; that the expense to that (;/) 1 Dr. & Sm. 417. See also Ciutiiffe, Brooks d: Co. v. Ulnckhurn Builduui Soc.fQ App. ("a. 857, atliriu- iag 22 Ch. D. 61 ; Blackhnrn Ihnlil- ivg iSoc. V. Cuhl{fi>t Brooks cC- Co., 29 Ch. D. 9Ct2 i ]lKivnesH Wenloch v. Rlvir Dee Co., 19 Q. RD. 135;3t! ell. 1). (574; ntliniie.l |(t App. i'- 3o4 ; ullnotie«.Hl.iM/r, pp. I8«ct*i.. and 23") W .«t<^ (.) 1 De li. & S. 421. ADVANCES BY DIRECTOUS. m ftmount should be clefraj'cd out of the sharehoklers' deposits, ^^k. III. Cimp. 2. ,.„, Sect. ;!. ami that if the expense shouUl exceed 1200t., the dinerence should be raised by a new issue of shaves. Certain persons were appointed trustees to direct the fitting out of the expedi- tion, to nominate the persons who were to conduct it, and to manage the fund supplied for defraying the expenses. The persons composing the expedition jiroceeded to Segovia, and arrived at the place where the lands in question were situate ; and were then arrested and imprisoned. The object of the expedition was thus frustrated ; the expenses incurred by its members greatly exceeded the fixed sum of 12001. ; and an attempt was made on behalf of the trustees to compel the shareholders to make good the excess. But it was held that, as between the trustees and the shareholders, the liability of the latter was limited to 1200Z., and that they were not bound to contribute more. Again, in the case of Seltcyn v. Harrison (a), the creditors of ^el^y" ''• Harrison. a firm executed a deed by which the business of the firm was placed in the hands of inspectors, and the creditor > severally covenanted to indemnify the inspectors to a limited extent against the liabilities which tliey might incur in carrying on the business. It was held that the creditors were not bound, other ivisc than by their covenants, to contribute to the pay- ment of debts contracted by the inspectors in carrying on the business. The express covenant to indemnify the trustees to iulefinite amount, excluded any more extensive obligation to iiulenmify them which might otherwise have arisen. The reader, however, will not fail to observe that both in The 'icnnan M'mvuj Ciwipamfs casr and in The Noricich Yarn Conipanifs cane, the shareholders had taken care to stipulate tluit their liability should not be unlimited. It is scarcely necessary to remark that the shareholders in a hmited hability company cannot be compelled to contribute '""ic tlmutlic amount of their shares, either for the purpose of mdpiMwfying directorn or for any other purpose. ^^ith resv '■L to advances by directors, it lias hew. hold that Lpans by u a loaa u> oond fuU made by them to the company auu iiio dirertoi-s. (a) 2 J. & H. 334. c c 2 888 COXTRIBUTIOX AND INDEMNITY. Allowances to directors, Bk. III. Chap. 2. money advanced has been bond fide applied to the logitinintc purposes of the companj', the company must repay it {h). But the attention of the sliarelioklers shouhl be specially cnlled to the fact of a loan being made by the directors. The duties of directors and the interest of creditors may very possibly con- flict with each other ; and it is always suspicious wlieii a director claims to be a creditor of the company entrusted to his care, in respect of a matter of which the shareholders know nothing (c). Directors of companies are generally allowed compensation for their trouble by express agreement { services on that footing. He might possibly have coiisideri'd that the {h) See ante, p. 380, See, also, Murray's Executors' case, 5 De O. M. & G, 7.')0 ; Ex parte Sedgwkli, 2 Jur. N. S. 949. (c) As to loans by directors of couipiini(.'S governed by 7 & 8 Vict, c. 110, see Baler's case, 1 Dr. & Sm. 5.') ; Murrays Executors' case, f) De <;. M. & O. 750; Teversham v. The Cameron's Coalhrook, dx. Co., 3 De G. & S. 29(), and Black v. Mallulue, 27 licav. 398, in which last case there was an exi)ress authority to borrow from the directors. ((/) Where there is s-jch an agree- ment till'}! are entitled to their fees, although the comjiany proves a failure, Ej parte Johnson, 27 h. J. C'h. 803. See infra, notes {h) and {i). (e) JJunston v. Imperial llus l.'u., 1) B. & Ad. 125, where there was a resolution to pay tlicni. (/) ICBeav. 485. See, too, £wn.< V. Coventry, 8 De G. 51. & G. 83o, Uj-ford Benefit BvihL Soe., 35 C!i. D. 502, and Leeds Estate Co. v. l^htp- herd, 36 Ch. D. 787, wliere directors were made to refund, with intenst, the difference between what they were entitled to by the eoniixiDy's deed, and ^\hat tliey had n'»l themselves, .and retained lor tbiir remuneration. station ami iiifluenci Xnrth Jlidlaiid Rn lif'towed liy jiini, e\ Imt whct])cr this we aiu'sitiin(i(Jii, to jier rei|nire his wliole tin and attention to the tenance a ]ierson wh own benefit sums of ai'ijuired liy liim in ) is due to his own cxi more than wliat was asieitain and deterini were allowed, I know retainin;,' the projiert; adeijiiately rewarded i ^Vhen a corapan; to its directors for 01' othernisc than presents (/(). More due to its directors pany have been sati If losses not pre •liareliolders, withoi ■veounts and report tliem to see and un^ ii'i'l reports are no approved and adopte ;'ieni afterwards to liiive sa;ictioned (k). iliooseto attend nu fi'iiiplaiii of tlu'ir ig '""! they attended (/) ^^'here directors 1 (f/)See, also, Impn- ^■'■'ht Assoc. V. Coleman. 1 189. CO See HuttoH V. West ''.23Ch.I}, 054. (') ^x paHe Cannon, .' ''■: Ex parte Cli ippendx ALLOWANCES TO DIRECTORS. 389 station and influence ac(|uire(l in the position of chairiiian of the York and Rk. III. Chap. 2. Xiirlh Miillaiul Railway was a remuneration fur tlie time and labour ^"''*- ^- lio-tinved liy liini, even if his services were not paid by any salary at all ; Imt wliftl'i'r this were no or not, it is the duty of every man who accepts aiiv situntion, to perfoim the duties of it thorou},'hly and entirely. If they niiuire his wliule time and attention, it is his duty to <,'ive that whole time ami attention to tiie dus discliar^e of them. This Court can never coun- tiiiance a person who is jdaced in a fiduciary situation in retaininj^ for his (,«n benefit sums of money which have come to his hands, or have been admired by him in that character, althouf,'h the ac(piisition of those sum.s U line to his own exertions, on the su<,'gestion that his services were worth nKire than what was i)aid for them, and that he was himself entitled to asoeitiiin and determine the just measure of their value. If this principle Wire allowed, I know not what there would be to prevent any clerk from Mainins the property of his master, on the plea that his master had not mle'iiiati'ly rewarded his great and meritorious services " (g). When a company is being wound up, it cannot make presents to its directors for past services at the expense of its creditors or otherwise than at the expense of those who make the presents (/(). Moreover if a company is being wound up, fees due to its directors cannot be paid until the debts of the com- pany liave been satisfied (/). If losses not properly chargeable to the company or the Ratification by -liiu'eholders, without their consent, are charged to them in the recounts and reports in such an open and fair way as to enable them to see and understand what is done, and these accounts ;iii(l reports aie not objected to, but are, on the contrary, approved and adopted by the shareholders, it will be too late for ;'ieni afterwards to dispute the propriety of what they may thus liiive sanctioned (k). Moreover, those shareholders who do not ilioose to attend meetings of which they have notice, cannot iiimpliiiu of their ignorance of what they might have known had they attended (/). Wliere directors have misapplied moneys of a company by KLfiniiiinj,' i > sliarelioldors. (;/) See, also, Iviperinl Merc, >-'■ ill it Assoc. V. Coleman, L. R. (5 H. L. 189. CO See HuttoH v. IVest Cork Rail. ",23Ch. D. 054. {'■) Ex parte Cannnn, ,30 Ch. D. (J; Ex parte Cliippendale, 4 De G. M. & G. 19, might perhaps have been properly decided on this ground alone. (I) SeertHfe, p. 311, and Turqiuind v. Marshall, 4 Ch. 376 ; Lane's case, 1 De G. J. & Sm. 504. See, also, Ex parte Big7iold, 22 Bcav, p. 165. 890 CONTRinUTION AND INDEMNITY. Bk. III. Chap. 2. improperly distributing tlicm among the sliarelioldcrs, and Imvo Sect, 3. -" — ~~ been afterward^ compelled to repay such moneys, Ihc quostidu arises whether the directors can compel the sharoholdtrs to refund the amounts they have respectively received. Tlio cir- cumstance that the directors made a mistake in point of law would not entitle them to relief, but perliaps a mistake of fact might. This question has not yet beeu settled by jiulicinl decision (m). (m) Soc National Funds Assurance Co., 10 Ch. D. 118, where the di- rectDrs' riglits, if any, aj^ainst the shareholders were reserved j irye Valley Bail Co. v. }fajm, 10 Ch, f), 489, where the Court rel'uaiMl ic, add the shareholders a.s tliird iiaiticito an action against the directors. CVriTAL OF 0OJirANU;S. 891 CHAPTER III. OF THE CAPITAL OF COMPANIES ; OP CALLS ; OF DIVIDENDS ; AND OF ACCOUNTS. SEUT:oX I.— (iENEllAL OltSRRVATlONS ON THE CAPITAL OF ('OMPANIES, Tin: word capital is usod in many senses : we speak of Bk. III. Chap. 3. Sect. 1. boiTowed or loan capital; of share capital; of nominal capital ; '-— — • of paid-up capital; of un paid-up capital; of issued and un- "^"'''" issued capital ; of fixed capital ; of floivting capital. Again, caiiitiil is used by way of distinction from income, interest, (livideiuls, and profits ; and accounts are divided into capital lucoimts and income accounts. The idea underlying the various meanings of the word capital in connection with a company is that of money obtained or to be obtained for the purpose of commencing or extending a companj''s business as distinguished from monej" earned in carrying on its business. Money earned in carrying on the business may be treated as capital, or, in other words, may be capitalised, i.e., it may be applied in paying off capital jireviously borrowed, or in re- placinf:; capital which has been lost or exhausted, or in some extension of business instead of being applied in defraying current expenses, or in being divided as profit. In speaking of capital, it is of the first importance not to confound borrowed capital with share capital. 1. Of borrowed or loan capital. A company's so-called borrowed capital or loan capital is Borrowed , . Cfttiit'il neither more nor less than a debt ; it is money borrowed by a IMAGE EVALUATION TEST TARGET (MT-3) v. ^ /, O ■^.% 1.0 I.I 'f^ilM ilM 2.0 ^ m It |4o 1.8 1.25 1.4 J4 .< 6" - ► Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 •), and the observations there made are equally applicable to money borrowed as capital and to money .'O .owed for other purposes. The powers of com- panies to fssue debentures, and the rights of debenture-holders have also V ■.■■,} already noticed (c). Capital of companies. Varying the ainiiiiiit ui uupiiul. 2. Of share capital. The capital of a company — i.e., the money intended to bo raised for carrying out its objects — is one of the mutters deter- mined upon as soon as its formation is serioiisly nndortakeii. The sum fixed upon ought to be so large as to be sufiicient to enable the conipanj' to carry on its business with success; but it ought not to be larger than is necessary for this purpose ; for the greater the capital sunk in any undertaking, the less will be each subscriber's share of profit, unless, indeed, the profits increase with the capital sunk, a result not so often ob- tained as anticii)ated. The probable success of any company depends very much upon the capital intended to be embarked in its projected busineijs ; if that capital is inadequate, it will probably be wholly lost ; whilst if it is more than is required, the profits per share will be unnecessarily diminished. Hence the anjount of a company's capital is one of those things wlMi, when fixed, cannot be varied without the consent of all \yl)o join the company', unless there is some special provision to the c(jntrary in the statute by which a company is governed, or in its charter or deed of settlement (any as to convert its capital from 2,000,000/. divided into 20,000 shares of 100/. each, into a capital of 1,000,000/. divided into 20,000 shares of 50/. each. Upon tlie same principle a person who agrees to take shares in a coinpany with a given capital, is jmmd fade not bound to take shares in a company with a different capital (/) ; but persons not unfrequently agree to take shares in companies the capital of which is not defined ; and in such cases they are bound by their agreement, although the capital ultimately fixed upon may differ materially from that originally proposed {(j). The capital of a company is usually divided into a definite Division of number of equal parts or shares ; and the value and amount of gi'^reg, '" such parts are by no means matters of small importance to the subscribers or shareholders ; for not only is a small share more marketable than a large one, but the extent to which a subscriber or shareholder is liable to contribute to the capital or debts of a company depends on the number and amount oi his shares. ^Vhen, therefore, the number and amount of the Varying tho shares into which the capital of a company is to be considered si,'^res. Hs divided are once fixed, no change in these respects ought to be valid unless made under some statutory or other special power, or unless assented to by all the shareholders ; and there are cases to this effect (A). However, in the Amheryatc, dr., Ambcrgate Rail- r, 1 n ^ti 1 11 r\ • i , way Company V. Uiuliray Company v. MiUhdl (?), a compitny was incorporated Mitchell. by a special act, which enacted that the capital was to be BramwtU in Bouch v. Sproule, 12 A]ij). Ca. 405, as to leaving money in the lusiness. (r) 4 Q. 1'.. 4.30. Compare Am- knjnte, Ic, Hail. Co. v. Mitchell, 4 Ex. .')40, noticed infra. (/) See nourne v. Fmth, 9 13. & C. 632 ; Fiix V. Clifton, 6 Bing. 770 ; ntchford V. Davu, 6 M. & W. 2. {g) See, for example, Norman v. Mitchell, 5 De O. M. & Q, 648 ; Nixon V. Erotcnloic, 2 H & N. 456, and 3 ib. 086. (/() See ace. Feilinij'.i ease and others In re the Financial Corpora- tion, 2 Ch. 714 ; Scicell's case, 3 ib. 131 ; Smith v. Golihworthy, 4 Q. B. 430 ; and In re European Society Arbitration Actg, 8 CL D. 679, at p. 705. (i) 4 Ex. 540. 894 CAl'ITAI. 01" OOMI'ANIKS. Unimaed shares. I Bk. III. Chai). 3. divided into shares, and thnt for tlio purpose of voliiif pnrli Sect. 1. ... . hi » '" u sum of 25i. of the capital should be considered as reproHontini; one share. The shares were at first 25/. shares, but the com- pany {i.e., apparently the directors) afterwards reduced tliem to 20!. shares, and it was contended in an action for calls on a 20/. share, that the alteration in the number and valuo of the shares was invalid, and that the call was not recoverable. But it was held that there was nothing in the company's special act which prevented the directors from nmkiiig shares of less than 251. each ; that they were not bound to fix the amount of the shares once for nil ; and that, as to the votiii", the alteration could not deprive any one of his ri<,'hts, inas- much as the only effect of it was, to give every liohlcr of a 25/. share, one share and a quarter, ijistead of one sharo as before. Unissued shares in a company belong to the company, and although they may be placed at the disposal of the directors, the d'»'«>ctorf must account to the company for wliatevcr tliey may lo^eivu m respect of such shares (A). On the other liand, the shares held by a director are his separate property, and he is in no sense a trustee of them for the company (/). Persons who conspire to issue, as good, more shares than the authorised number, may be criminally prosecuted (w). It is not usual for the whole of the sum fixed upon as the capital of a company, t'^ '^e paid up at once by the subscribers or shareholders. The capital, and the number and amount of the shares into which it is to be divided, having been deter- mined upon, and such shares having been subscribed for, an instalment only of the money they rei^resent is ])aitl, and tlic rest of that money is left to be paid as occasion may require. Hence the distinction between paid-up and nominal capital. The former is the money which the company actually has or has had ; the latter consists of the sum to which it is entitled by virtue of the contract entered into by its subscribers and Issuing too many shares. Nominal and paid-up capital. (k) York and Midhind Bitil. Co. v. Hudso ., 16 Beav. 48.'). So all un- paid calls, 8i;e JFebb v. U'hiffm, L. R. 6 H. L. 711 ; Morrit? case, 7 Ch. 200 ; and 8 Ch. 800. (/) aUhert'g case, 5 Cii. .')5!). (m) See li, v, Mott, 2 Car. & P. 621. I'AID-Ur SIIAUHS. 896 slmrcholders, including tlio nominal value of any unissued Bk- HI- Chap. 3. Sect. 1. sliures (h). A shiiro, the wliole nominal amount of which has hcen paid Paid-up shares, to the company is called a jxiid-itji share. ^Vlletller a shai'c can bo effectually paid up otherwise than in money has heen much discussed. The result of the decisions seems to be, thftt unless the contrary can be shown by reference to some stfttutoiy enactment, payment in money's worth, cr/., in services leiuk'ied or goods supplied to the company, is equivalent to payiuont in money (o) : whence it follows that paid-uii shares ciui be issued in consideration of such services, &c. The nbuse, however, of this rule led to the insertion in the Com- Itauies act, 18G7, of a provision to the effect that shares in companies registered under the Companies act, 18G2, must be paid up in cash unless some agreement in writing for payment iiUierwise is entered into and registered at or before the issue (if the shares ( j)). The articles of association are not such an agreement (q). The issue of paid-up shares otherwise than for vahie (r) is a breach of trust on the part of the directors ; and the company 1111(1 its creditors are entitled to have su'''! shai'es treated as not paid up (x) ; luiless they are in the hands of bond Jidc holders for value without notice of the facts (<). (ii) See EixjUsh Channel Steamship ('). V. liult, 17 Cli. D. 715 ; and lie lironfifhl ('mil Co., ib. p. SO, ]Kr Jissfl, M.R. (») See Ciirrirs rnsf, 3 T)e G. J. & Sm. 367; I'cWs case, 5 Cli. 11 ; Schroder's case, 11 Eq. 131. Rut nee the observations nf V.-C. Stuart in 1.0 he's case, U Iji 100. (ji) See30vl/ler, 2 Ha. 218. ';■'' 'WW^. fl 898 CAPITAL OF COMPANIES. Bk. III. Chap. 3. Sect. 1. Increntiing cnpital of coat- book miniu); companies. '^IHii i Statutory enact- ments relating to capital, &c. m R the consent of nil the memhers of tlio company. The dis- tinction, however, hetween borrowiii}^ money and iiiurcasiri" capital, which was adverted to on n former occasion, must not be overlooked ; for it does not follow that because a nuijinitv of the shareholders of n company cannot increase tlic capital of the company, they cannot lawfully, and against tlio will uf the minority, borrow money on the credit of the couipaiiv (ci. To the rule that, in the absence of special i)owers, the capital of a company cannot be increased against the will of a single dissentient shareholder, there is, apparently, an excep- tion in the case of cost-book mining companies. It is stated by Mr. Tapping, in his useful essay on the cost-book, that the capital of a cost-book mining company may be increased in pursuance of a x'esolution of a special general meeting (/'). Xn authority is cited for this statement, but it certainly is the constant practice of cost-book companies, which liavc spout all their cnpital, to make further calls on their shareholders, ami to proceed against them in the Stanna'y court in case of non- payment. But it must not be overlooked that the cnpital of a true cost-book company is seldom if ever fixed beforehand (//), and that shareholders in cost-book mining companies have the power of relinquishing their shares if all calls upon them have been paid up ; and that if they do not choose to avail them- selves of this power, they may with propriety be treated as agreeing to go on, and to furnish more capital, should it be found necessary, for the purposes of the mine. Passing now to the various statutory enactments bearing upon the capital of companies, it may be observed, that there is no statutory provision relating to the capital of banking companies governed by 7 Geo. 4, c. 46, nor to that of com- panies governed by the Letters Patent act of 7 Wm. 4 & 1 Vict. c. 73. (f) Se,e llrtjon v. Mctropnlitan Saloo)i OmnHius Co., 3 I)e C!. & J. 123; and Australian Auxiliury Steam Clipper Co. v. Mounsey, 4 K.& J. 733, noticed ante, p. 191 el seq. (/) Tapping on the Cost- Book, p. 22. (g) See ante, p. 93 d seq. OOVEnNEI) BY 8 AND 9 VICT. C. IG. 899 Ci>m}Mnies governed by the Piimpni! !v»' cliinni:! eonsolulntinii net. Uk. III. Chap. 3. Sect 1. The capital of coiiipanios iiicorporalofl by spi-cial act of '-'P'ta' "f com- • II I i'-i--ti. pmiicH govcrnod rniliumcnt is dotenniiied by sucli act, and is diviaed into by 8 ft 9 Vict. . 1 A shares of the number and amount tbcreby proscribed (//). " ' And by tbe Companies' cbuises consolidation act it is enacted, that the subscribers sliall pay tbe sums subscribed by tbcm I'l'sjX'ctively, or sucli portions thereof as shall frtnn time to time be called for by the company (/) ; and the company is (iiiliowcred to nuike calls on the shareholders (k), and to iiif'urce payment by action (/), and to forfeit the shares of (lel'aulters (m). Subject to certain restrictions, new shares in these companies may be issued at a discount («)• The act ill question does not itself confer any power to borrov, but it contains important provisions relating to the borrowing of money by companies emi)owered to borrow by their special acts (t»), and enacts that money authorised to be borrowed may, unless it be otherwise provided by the special act, be raised by the creation of new shares (;>), which, with reference to the |iayinent of calls, are to be on the same footing as original shares (7), and are to be offered to the existing shareholders if th" (ihl shari's are at a premium (/). It is also declared, that it shall be lawful for the company to convert or consolidate shares wholly paid up into capital stock, to be divided amongst the shareholders according to their respective in- terusts therein (s) ; and provision is made for registering the owners fur the time being of such stock and for the transfer tliereof, and for securing to the holders such rights as they would have enjoyed if their shares had not been converted (h) >iQe A mhirgnte, ttr., Rail, Co. V. ilMdl, 4 Ex. 540, noticed ante, p. m. (i) 8&9Vict. c. IG, § 21. (/.) l!j. § -22. Soe infra, § 2. (0 lb. ^ 05. (»i) Ilj. § 2!). Sue infra, c. G. («) See 2U & 27 Vict. e. 118, § 21, as ameniled by 30 & 31 Vict. c. 127, § 27, and by 32 & 33 Vict. c. 48, §§ 5-7. {„) 8 & 9 Vict. c. 16, § 38 et seq, (/Oib. §r,e. ('/) lb- § 57. (r) 8 & !) Vict. c. IG, § 58, See Pvarmn v. London and Croijdon Hail. Co., 14 Sim. 541 ; anil Campbell v. London and lirujhton Rail. Co., 6 Ha. 519, as to the time within which a shareholder must accept the offer. (s) 8 & 9 Vict. c. 16, § 61. 400 CAPITAL OF COMPANIES. 26 & 27 Vict, c. 118. Preference , Bk, III. Chap. 3. into cnpital stock of tlie companj' (/). The net ftiithoiiscs t'l.^ Sect. !• ,. ciiroctors to receive payment from any sliareliolder of the whole amount of his shares, and to pay him interest on the difference hetwoen such amount and the amount of calls actually made in respect of the same shares («). The company's monies are to he applied first in payment of the costs and expenses ini^urrcd in ohtaining the spociiil ik t and secondly in carrying out the ohjects of the company (.c). The Companies' clauses act, 1803 (//), contains soine fiiitlRr important provisions relative to additional capital and dcbeii- tare stock of companies governed hy special acts of rarliuiueiit. The act in question does not confer any power to iiuTease capital, or to issue preference shares, or to create debentures, hut only regulates the mode of exercising such powers where they are conferred hy the company's special act. Tliere is one provision, however, relating to the rights of preference shareholders which requires special notice. The provision in question (§ 14) is to the effect that preference shares or stock shall be entitled to the preferential dividend or interest assigned thereto out of the profits of each year in i)riority to the ordinary shares and stock of the company ; but if in nnv year there are not profits available for the payment of tlie full amount of preferential dividend or interest for tiiat year, no part of the deficiency shall be made good out of the profits of any subseciuent year, or out of any other funds of the com- pany. Prior to the passing of this act, it had been held that preference shareholders were entitled to have any deficiency of profit in one year made good out of the profits of a subse- quent year, even although nothing might be left for the ordinary shareholders (z). The enactment altering this rule only extends, it is conceived, to preference shares issutil under some special act passed after July, IvSGB. (<) lb. §§ G2-()4. Stock will pass under a bec^uest of sliares. See Morrice v. Aylmer, 10 Ch. 148; Dillon v. Arkins, 17 L. R. Ir. 636. But not debentures. See last case. (m) lb. § 24. (a:) lb. § 65, See, also, 27 & 2P Viet. c. 121, §§ 3 et teq., anl<; book ii., c. 1, § 2. (y) 26 & 27 Vict. c. 118 ; amenikJ by 30 & 31 Vict. c. 127, and 32& 33 Vict. c. 48. (z) See as to preference shai'cs lyebb v. Earle, 20 % 55C ; Banyi- OOVtUXtD UV TIIK COMrAXms ACT, 1802. •101 ComjHinus (juvtnml hij llw ('i)Vi}Mnie» act, 1802. Itk. III. CUp 3. Sect. 1. The cnpital of n ooinpimy foniu'd undtr the net of 1802, and Cai>ital of .•om- limited by sliturs, iiiust be; sperihotl iii Un' inoinoranuiiui ol i,y -.»:, .t m iis>o(iatioii (I; 8), and tbi; rapital of other coinpaiiifs fonni'd "^'' *■'• '*■ iiiiiU'i' tlic act, and liaving a capital divided into shares, must lit' specified in tlie registered articles (§ 14). By the Customs and Inhmd Ilevenue net, 1888 (a), the Stumi). iioiiiiiial capital of any company to be registered witii Hmited Huiiility is to be liable to an ad valorem stamp di'ty of two shillings per cent., and a statement of the amount of iio'). Slimes in limited companies formed under this act cannot If 'e at a lie issued at a discount (c). The migiiial capital may be increased by the issue of new IncrcaHc of shares (^S 12 and 50) ( Ha. 313; Mnttheirs v. drent :<-rlli(rn Itnil. I 'o.,-).]xir. N. S. 284 ; '■"'•f y.Xottinijham IV. ]V. Co., 30 lieav. 86 ; Cnrrij v. Lonilmulerrij and l-^mtUlIni l!„;i. Co., 29 P.eav. 263 ; > ii>/i V. (',„■!; nnd llamlon Kail. Co., If L. 1!. 3 K.i. 356, iind u ib. 65, wiieiv till' liiuleifiice shareholilera t-tiibli-lied tiieir right to many years' arrears. L.C. (a) 51 Vict. c. 8, § 11. Ih) See Ind's case, 7 Cli. 485. See ante, \>. 50, as to muiiberinj^ share;-, ((•) Almada and Tirito Co., 38 C'h. D. 415 ; New Chile Gold Mining Co., 38 Cli. D. 475 ; Addk^tone I.imdenm Co., 37 C'h. I). 1!)1 ; overniliii},' Ince Hall liolling Milh Co., 23 Ch. D. 545 n. ; and I'lankijnaslon Tube Co., 23 Ch. D. 542. And see 30 & 31 Vict. c. 131, § 35. Debentures may be issued at a discount, Reijent'a Canal Ironvorks Co., 3 Ch. D. 43 ; Anglo-Damihian Steam, dr., Co., 20 Kq. 339 ; Campbell's '■a.ie,4 Ch. D. 470. (d) See CamjiheU'scane, 9 Ch. I,a8 to the necessary meetings. D D 402 CAPITAI, OF rOMrANIKh'. Ilk. III. riift),. :!. S<«'t. 1. Ruiliirtiuii uf ca|>itul. All unlimited compnny wlicii r<'<,'istoriiij,' ns ii limitod n,u^. puny nuiy iiicroaHc its ciipiliil Ity iiicrtnsiii^' tin' iioinind uniuunt of its sliiuvs (r). 'riic capital of a company not limited l»y shun s, .nav apparently he reduced (set; i5§ 14 and HO) (c) ; Imf to ndu,,. the capital of a company limited l>y shares was impoNsilili' n^ the net originally stood (./'), This, hdwever, may itow li.' done under the provisions of the Companies nets, ]'.M','i jiinl 1H77 (.'/), and with the sanction of the ('oiut(/(); hut ii,.t otherwise, «'.//., by buying up and cancelling shuns (/'). l!nf, as will be seen hereafter, inability to reduce capital dues unt prevent shares from being forfeited or surrendered in tli. usual way (/.). These acts and the orders of Court relating to the ndu. . tion of capital will be found in the appendix to the |M'''^tiii treatise. liy reference to them and to the decisions ref'i in il to below it will be seen that — 1. The reduction of capital must be authorised by tlio c.iiii- pany's regulations as originally framed or as altered by s|uii;il res(dution. Where the articles require alteration thiy hum be first altered by special resolution and then anntlur n di- lution must be passed reducing the capital (/). 2. Where there are several (dassos of slinrcluildti's witii difi'erent rights, c.fi. holders of preference shares iiud hcldciN of ordinary shares, the reduction nnist be so made as imt [o infringe the rights of either class (»<) ; but it is not ueccssaiv ((■) Sec the Coaipanie.s act, 187!) (i) Hojie v.IiitiriiKlimialFinanniil (42 & 43 Vict. c. 70). .SW., 4 CJli. D. 3-27 ; Tnm- v. ni,:j- (/) Sci- § 12, and the cases of ?/•<))•//(, 1 2 Ajip. C'a.4(i!) ; (lisapproviii;' Fcilinij (titdi)tli(rn,2(Jh.'i]4; SewelTK J>roiiJiil(l SilL-itiiiif ('mil C'l.. 17 Hi. eatie, 3 Ch. 131. Even a coaiiiuny i). 7(! ; Tuylor v. I'llsm, dr , Lfi'' which hud power to reduce it.s Co., 27 C'li. I). 2(iS, niu-l also Ic cajiital lost it by hcinfi rej,'isteri'd as cnnsidend as uVfUuK'il on tli;- u \uu\tG<\ c()\u]niny, Droilwich I'otciil i>i)iiil. Sir J! llitUjwihij Uiit'dhnj Suit Co. v. Ciinou, L. 11. 3 E.\. 3"). Co., 17 Ir. L. H. 2;3:i. («/) 30 & 31 Vict, c. 131, § 1) d (/.) 7V.(x(/,(/<'.s' tws !) Cli. .VI. (Vm- ««/.; 40 & 41 Vict. c. 20. pare tlie ciiBcs in tlie last imte. {h) § 11. For the practice of the (/) I'dtail Innrt Smi (infi; book iii., c. 1, § 4. E(i. 213. (/(() llaiinatijne v. Ihnd >^imm IlKDrCTION OF CAIMTAI. ion liiiit llu' reiluctioii hIiduIiI l)i' ininlc ((lUiilly (tr ratnltly on alltlii' '-k. >lmivs (mm). Tlif rij^'lits nl' tin- ililVcrfiit classes uf hLarchoiilers will tli'iMiitl oil i)n-r\istiii}4 arniiij,'('iii('iits. ;l. Sliaiis iK'Vor taken up or aj^ncd to he taken up Ity any iiirsoii mny be eaneelled by a special nsulution of the share- liiihli'is, and without any application to the Court (»)• I. Ill all other eases an ohUt of lln; Court liaviii;,' jurisdic- tiiiii ti) wind up the eoiiipany (/.»•., in Kngland the Chancery |iivi>i()ii of the llif,'l» Court of dustiee) is necessary in order to itlcct a reduction of capital (o). '). With Mich sanction and the approval of a special resolii- tidii of the sharehohlers, the cnidtal may be reduced whether tiillv paid up or not, and whether lost or not (/*)• J^nt the Ciiiut will not sanction a reducti(»ii to correct an issue of shares ;it II (liM'oUllt (7). (i. Wlicre the reduction of the capital involves either the (liniinutiiiii of a sharehohlir's liability or the i)aynient to any sliiii'tli(ilder of i!:y puid-up capital (r), notice of an intended iipplication to the Court must as a rule be given to the ere- liitors (h) ; and security must be given to those creditors who will iiiit nsseiit (/). 7. The words " and reduced" nnist be temporarily added to tlk' luiiiic iif the company in all cases where the sanction of the Cimit U) a reduction of capital is required, unless the Court ilispeiiscs with such addition (»); and the Court has only |n.rti ;• to dispense with it where the reduction docs not involve T'l <'■>., '.U CIi. D. 2S7, an instnic- (7) Nciu Chile Gold Miniitij Co., iivr lasi', liiit too sjiueiul to liL- use- IJH (,'li. 1). 4~h. III. ('Ii;i|>. S. S..t. 1. I'lii} iii)iiii_m'(i. (mm) llarruwlltiiniililr Skd Co., 3!) I'll. I). ,"i82 ; (Jiiilirndii, (Ic, t'lijijiir '■.,41 1 ell. I). ;!(;;5. (") 40& 41 Vict. c. lit:, § 5. (i" ;io&:{i Vkt. r. i:ji, § 11. Ah li till' ili>ciilioii of tlu; Couit, .si'i! (»■) Sec 40.^:41 Vict. .■. ^C, § -I. (.v) .-50 ^: :U Vi.t. V. 1:51, §§ 11 and 17. Ui'iicral Oi-.icr March, IHfis, r. ."). Tlie iiilvortisoiiu'iitHdiiocli'il in this rule ruiiy ln' di.'<]>eii.-< !», iiud 40 & vl Vict. (0 11). §§ II, 1:5, and 14. 'i'i, §3. I'rior to Ihi.s act the law (ii) lb. § 10. Tlie (Joint u.sually «M-iilli. nvi.se. ii^^^^ l-:i,hirl',ilr Slid, directs tlii.s addition to be xi.sed for 'i .1 *'»., 4 Cli. 1). 827 ; KirhMall three nioiith.s Shari) v. Stivurf mid Hrem-nj Co., 5 ib. 53.'), and compare Co., 5 E(i. 1.")") ; but in Teh/rdjih 'ridilFoHclrnfKii'jhnid,!! Ei[.3j(i. floiustmrtun, f,,., 10 £((. 384 ; Credit |) n 2 "P^ 104 (AriTAI- OF COMrANIES. r.k. III. r:hap. 3. either the (liiuimitiou of any liability in respect of mipuiil capital or the payment to any sliareholder of any paid-up capital (.i). 8, The special resolution confirnied by the order must bf registered (y). All copies of the nienioranduui oi association issued utter the reduction nuist be in accordance with it (i), "NVhere the liability to calls is to be diminished or a division of paid-up capital is to be made (a), a time is fixed for citili- tors to come in and object, and if they do not come in within the time fixed iov the pinposc, they cannot afterwards ctlfr- tually dissent (h). But unless a consent on their hehiilf [> produced the Court will order a sum equal in amount to tiu' money owing to the non-consenting creditors to be paid into Court {(■). Creditors who receive no notice of the iiiteiKluil reduction are entitled to be paid their debts not only by the company, but, if necessary, by compelling the tlien membirs of it to contribute to their payment (d). By the Companies act, 1880, power is given to a company to reduce its paid-up capital by a return of accumulatiil profits to the shareholders, or to such of them as are wiJIiiig to accept such a return. In exercising this power the following,' matters must be attended to : — 1. The profits in question must be capable of beiiifr dis- tributed amongst the shareholders, with their consent, in the shape of a dividend or bonus (e) ; 2. A special resolution for the return of these prufits ov a part of them must be passed (_/'); 8. A memorandum containing the necessary paitieiilais must be produced to and registered by the llegistrar-deneial before the resolution can take effect (;/) ; Reduction of paiil-up capital. Funcii-r of Knyhuul, 11 Eq. IJoO, ami I'atcnt rmtilittiiKj (Iramtrii Co., 12 Ch. D. '2'>-i, lourteeii duys were tixud. See iil.'^o eases in note {nun) and B\iekley, fith eil., p. 5 Hi. (,/■) See 40 & 41 Vict. e. 2(i, § 4. (//) 30 & 31 Viet. c. 131, §§ lo. Hi, nud see 40 & 41 Viet. c. 2(\, § 4. As to tlie form of the minute to be regis- tered, seeW. N. 1888, 14.. fi 1, 103. (,.) 30 & 31 Vict. c. 131, § 18. ((() 40 & 41 Vict. e. iO, § 4. (/() Credit Fuiuii'i- of Eiiijhimh 11 E(j. 35(i, Ibut-iiotL', ((•) Patent J'cntilatiiKj llmt). By the act of 1867, special reso- liuic)ns may be passed authorising arrangements on the issue iif shares for a difterence between their hohlers in the amount pI Calls to bo paid, and the time of payment of such calls (q). The capital of companies governed by the Com2)anies act, Cmivers'Mn li^G2, may be consolidated and divided into shares of larger amount, and may be converted into stock (§§ 12 and 50) ; but notice of any such change must be given to the registrar (^28). [h) II.. § 5. 11) II.. § 6. /.) 30&31 Vict. c. 131, § 21. (') II). [m) !i 22. As to the illi'j,'ality of •iiljiliviiling otherwise tlian wndiT tlie act, Sfu thi! cases of FeUimj and (4ts, 2C'h. 714. (") 2.5 it 20 Vict. c. Pi), § 50. W ilutUm V. Smrharo' Cliff Hold Co., 2 Dr. & Sm. .'il-laud 521, niol !) lur. N. S. 551 ; Asliliitnj v. Wal.ioti, 30 Ch. 1). 370. See as to the con- struction of articles on tlii.s puint, Mtlhwh) V. Hitmiltim, 21 W. R. 87 1. (/i) llurviifon v. Mtxicun Unil. Co., 1!) E(i. 3.")8 ; South Dn '(t»i Bixvery Co., 31 Oil. D. 2(51 ; "ruhjfwat-u- Nav. Co., 31) Cli. 0. 1. ('/) 30&31 Vi-^t. c. 131, § 24. •10(5 CAl'ITAI- OK C"0:M1'ANIES. Companies ;ict, 1862. Table A. Provisions as to laiiitul. Lk. III. Chap. ;}. The amount of a company's capital or stock, the kIhucs into — which the former is divided, and in which the latter is lield, tlir Return, showing . , .11 ^ 1 1 1 xi 1 capiul &c. persons to whom the shares or stock belong, tlie dates dl tiiiii>- fers, and the amounts of calls paid and unpaid, must appear with other matters in the returns required to be nuidc aiimiiillv to the registrar (§§ 20 and 20). Hy the regulations in Tabhi A., the directors may, witli tlii sanction of a special resolution of the members, iucretisc tin capital of the company by issuing new shares (Xo. 20). Tin' amount of the increase and the amounts of the sliarts int.i which the increased capital is to be divided, restwitli thu ninii. l)ers ; but if they give no directions upon the subject, tlien witli the directors (ih.). Unless the meeting, authorising the iucrcasc, gives directions to the contrary, all new shares are to be oll'eiiMl to the members in proportion to the existing shares held bv them (No. 27). Shares not accepted by the members, mav be disposed of by the directors as they thiidc most beneiicinl to the company (ih.). Any capital raised by the creation of luw shares is to be considered as part of the original ciipitiil, and is subject to the same provisions as regards calls and foifeituii' of shares (No. 28) (/•). By the same regulations, the directors may, with tlio saiKtiuii of the members, convert any paid-up shares into stock (Xo, '2:3, §§12, 28, and 31 of the act). The transfer of stock is, as t'iir as practicable, subject to the same regulations as the tmii>tir of shares (No. 2-1), and tlie rights of stock-holders are assimi- lated, as nearly as circumstances will permit, to tlic riglits uf sliureholders (Nos. 21 and 2o ; and see § 2!) of the act). ^Vith respect to existing companies registered inidci' tlie lut but not formed under it, the amount of their cai)ital iiml the number of their shares, and the persons to whom tliey btlniiL.', and the amounts paid on them, must all be stated in the docu- ments sent to the Piegistrar (§ 183); and if the capita! 1i;h Capital of oxist ing companies. ()•) Cl.niscs siTiiiliir to tlief?e were cdiilaiued iu Tal)lu B. to the act of 185(j. They were clisciissi'd with refeieiice to honowiiij,' money, in lUijiin V. Mitrojujlitan Sulomi Um- iiihm Co., i Jur. N. S. 680, and 3 De G. & .T. 123 ; Aiisirtdlir- 3. iiersons entitled to it, must be similarly stated (§ 185). Shai'es in those companies need not be numbered if thoy were not numbered l)ofore registration (§ 190, el. 2). Subject, however, to tlie provisions of any special act of Parliament, or letters patent, the foregoing remarks concerning the capital and shares of new companies appear to be applicable to existing companies iil'tor their registration (see § 190 ; and as to companies ivistered under the acts of 1850—1858, see §§ 170—178). SFXTIOX II.— OF CALLS. Capitals of companies are usually raised by instalments or Different kinds ,, of calls. callH. "A call," is an expression used to denote both a demand tor nidnoy, and also the sum demanded ; and in this last sense it sijjnilies either the whole sum required to be raised at one time from the members of a company by a contribution amongst themselves, or that proportion of this entire sum which is pay- ai)le in respect of each share. There are two kinds of calls. First, there are those calls ivliich are nothing more than the unpaid-up portions of the nominal capital of a company (s) ; and, secondly, there are those calls which are contributions required after that capital bus been raised and exhausted. Calls of the first kind are liiiyabk^ by virtue of the agreement entered into l)y the sub- scribers and shareholders to contribute the sums fixed upon as the capital; but calls of the last kind aie payable in jonse- i|nence of the liability of shareholders to discharge their debts (/). If this liability is uidimited, the amount of calls (of the second kind) which a shareholder may be compelled to pay, (■<) Payments on albjtiiient aie lint calls. Sre Crudcij v. Hank of '(',(/,>■, 4 CilT. 314. I') The (liU'crence here nlludid to i- illustrati'cl hv IhiU Fla.n Co. v. U'elkdey, fi H. & N. 38, in which it was belli that calls niad(! Ly licpii- (bitors might be lecovered, althiiuj,'h thi! notice.s required for other calls had nfit been ''iven. ■ , * ; -■-■■>.. ^-■- : 408 CALLS. Bk. III. Cliap. 3. depends entirely on the amount of the debts to be liquidated, '— — and upon the number of the solvent co-shareholders. But no shareholder can be required to paj' calls of the first kind bevond his unpaid proportion i>f the capital of the company. In the ensuing pages it is proposed to examine the law respecting culls of the first kind, so far as it relates to the persons empowered to make them, the purposes for, and tlie mannei in which they may be made, the persons liable to pay them, and the law relating to actions for their recovery. The right to forfeit shares for the non-payment of calls will be noticed in a sub- sequent part of the work {infra, ch. G). lit ■ 7« .tt By whom calls may be made. In co?np.anies governed by 7 Geo. 4, c. 4(i, 7 \Vm. 4 & 1 Vict. c. 73. In companies govpineil liy « & it Vict, c. 1(5. Companies go- verned by the Companies act, 1862, 1. Of the persons h\j whom calls mmj he vuiilc. The terms of the instrument which regulates the internal affairs of each comjiany must be ascertained before the persons empowered to make calls on its shareholders can be known. Generally speaking, this power is naturally vested in the dii'ectors of the company. There is no statutalde iirovision upon Ibis subject applicable to banking companies governed by 7 Geo. 4, c. 46 ; nor to companies governed by the Letters Patent act of 7 Wm. 4 it 1 Vict. c. 73, In ordinary cost-book companies calls are made by the shareholders (h). By the Comjianies clauses consolidation act the power to make calls is given to the company where its special act is silent on the subject (.<) ; and it has been held, that tliis power is one which may be e.xercised by the directors, and that con- sequently u general meeting of the shareholders need not be held for the purpose of making a call (»/). By the schedule to the Companies act, 1862, the power of nmking calls is exerciseaMe by the directors (r) ; and this rule applies to all companies limited by shares and formcHl under that act, and having no articles of association of their own. The act itself, however, is silent upon the subject, and leaves the authority to make calls to be settled by the regulations of eacli company. (i() See 32 & 33 Vict, c. 19, § 10, Ac, Rail. Co. v, Mitchell, 4 Ex. (.c) 8 & 9 Vict. c. 16, § 22. C40. ((/) lb, § 90. See Amhmjatc, (z) Table A., No. 4. BEFORE WHOLE CAPITAL SUBSCRIBED. 409 Where the power to make calls resides in the directors, a call made by those directors who are so de Jure is valid, although an attempt ma}' have been made to remove them, and other liirectors may have been (improperly) elected to take their place (a). It need hardly be observed, that a call made by persons who Ijave not the right to make it, is altogether invalid (/>). Where the power to make a call is exerciscable by a certain number of persons collectively, a valid call cannot be niadc at a meeting at which less than the requisite number is present. The authorities on this point are numerous and conclusive (<•). However, in The Southampton Dock Companij v. Richards {d), power to make calls was given by a special act of Parliament to the directors of a company, and it was held that a call made by a court of directors {i.e., by three of them) wns valid, inas- much as in the act the expressions "the directors" and "a ( ouvt of directors " were used indiscriminatelv. Bk. III. Chill). 3. Scot. •-'. ("nils tii.itU" liy tlircetors(/cy«re. Ciill.s miiile liy iiiiproiier jicr- sons. Calk must lie liiiule liy tlin rc- ijiiisitu iiuiulivr of imrsons. Southampton Doi'k Comiiaiiy v. Uichards. 2. The purposes for ichivh calls may he made. Fird, ns to startivg the cowimny. It has been seen already that a person who agrees to take Calls madn to , . p J r ^' 1 -ii start a coiiiii;iiiy. shares ni a company formed tor a given purpose, and with a givtu capital, is not bound to accept shares in a company formed for another purpose, or with a different capital ; and it fiillows from this that a variation in the original scheme, if unassented to by a subscriber to it, affords an answer to any application for calls which maybe made ui)on him (r). And <-'iii'< ;in '^""tteos of scrip, &o. (a) Htmnsea Dock Co. v. Levein, ill L, J. Ex. 447. (/)) See ikmkn Gulbj Co. v. Mc- Lifkr, 1 App. Ca. 39 ; Howbeiich Cml Cn. V. 7'rt(.r/itP, 5 H. & N. 151, aiul the renuirks on this case in York Tmmway.'< Co. v. WiUous, 8 Q. B. D. 6H5, ami Lomlon A South- 'Hi Vovntks Land Co., 31 Cli. 1). 223. Tlie general issue raised the 'luestinn of validity. South-Eastern M. Co. V. Hehhlen-hitc, 12 A. & E. 497. ((?) See Bottomlcifs citsc, 16 Ch. D. 681 ; Kirk v. Bell, 16 Q. B. 290, and similar cases cited ante, p. 1.55, and p. 299, and compare Thames Haven Dock Co. v. Rose, 4 Man. & Gr. 552. ('0 1 Man. & Gr. 448. South- ampton Dork Cn. V. Arnctt, ib. (e) See Galvanized Iron Go, v. Wtstohj, 8 Ex. 17. 410 CALLS. '■' i Bk. III. Chaii. 3. jf no concluded agreement lins been entered into, biiuliii't n,. Sect. 2. ' n "" allottee of shares to accej^t them, and to become a shareliiildci' he cannot be liable to calls ( /'). lUit if a snbscrihor to a rom. pany binds himself to take shares in a company whidi mav differ, more or less, from that originally proposed to be foniud, he cannot set up a variation in the original scheme as mi ans\v(!r to a demand for pajniont of the capital he has umlei- Before the whole taken to contribute (//). Again, although the whole of a (.oiii- capital has been . '■ i i i i • Bubsciibeil. pany s mtended capital has not been subscribed, it does not follow that those who have subscribed are not bound to fuinisli funds to enable it to commence operations. If by a compnnv's special act or charter the subscription of the whole, or a dr- finite part of the jn'oposed capital, is made a condition prece- dent to the right to require payment of anything from tliosn who have subscribed, effect must be given to such a condi- tion (/() ; but there is nothing in any general act now in foicr having any such effect (?) ; and consequently, where thei'f .s no special act or charter affecting the question, the hability of a subscriber to a company to contribute to its capital before thf whole has been subscribed for deiiends entirely upon the con- tract into which he may have entered ; and there are several instances in which persons have been held bound so to contii- bute, although the whole ca})ital of the company which tliey had joined had not been subscribed for (A). Priind fme, however, they are not so bound (/) ; and in all the cases in which they were held bound, the defendants had entered into a contract which precluded them from maintaining that the (/) Didc v. Audrcrr.i, 2 Ex. 200. ((/) Ante, p. 22 ct scij., aii II. & N. 151, lioWL'Vci', cuiitiiiii.s 'iii-'ta to tlu- contrary ; and sci; S\th Stiiffnrd Steel Co. v. IVard, I.. H. 3 K.\. 172, which, however tunK'd on the article.'^. (o) III an action for call.H tlii.s (lel'c'uce was ojien on a ph'a of never iiKh'liteii. Soiitli-h'aM. Uail. Co. v. llehhkivhitc, 12 A. & E. 4!)7. ill) Yetts v. Norfolk Hail. Co., 3 De G. & S. 203 ; Cooper v. Shrop- nhire Union Hail, and Can. Co., (i Rail. Ga. 13(!, ami 13 Jnr. 443. See, alsio, Orr v. (ilasyow Rail. Co., 3 AIc,(Jii. TOO, where the money already ohtained was aiijilied to a jiiu'iiose which was inipr(i]ier, un- h'ss sanctioned l>y a majority of sharehoMcrs. = 1^^- 412 CALLS. Improper calls. Bk. ITI. Chap. 3. dissentient shareholder, to prevent the making of sucli a call. Sect. 2. „,, ..... 1 • 1 • llie authorities bearing upon this subject will bo adverted to hereafter, when the principles which guide the Court in interfering in matters connected with the internal atl'iiirs df companies come to be discussed (13k. III. c. 9, § 2). Tinrt. appears to be no objection in principle to making calls to meet prospective and estimated expenses ; but it seems that in ordinary cost-book companies such calls were formerly cdii. sidered improper (7). The i)o\ver of making a call must he exercised as a trust (/) so as not to oppress or favour one shareholder, or set of share- holders, more than another ; and if a call, which ought to bo made on all the shareholders ratably, is made on some of them exclusively of the others, redress may bo had (.s). So, if a call is made on one shareholder only, with a view to enable him to make default and have his shares forfeited, ami thus get out of the company, the call, and all the proceedings founded upon it, will be nugatory as against the other share- holders (0- A creditor who has obtained judgment against a company and cannot obtain satisfaction by execution in the ordinary way, has been hel.'i not entitled to a mandamus to compel the Action to compel company to pay him by means of a call («)• But as before the the making of a , i- , / 1 /• • ^ ^ ^ •, • 1 • 1 call. Judicature acts a court ot equity would, so now it is suhmittiil any Division of the High Court will, if necessary, assist 11 person entitled to payment out of the funds of a coiniiany by making a call on tlio shareholders, and compelling them to furnish so much of the uiipaid-up capital as may be required to liquidate the demand upon them (c). "Whether they can be Mandamus to make a call. ('/) Such calls can, however, now be made tor the estimated expenses ul' three months. Sie '.i-2 & ."iij Vict, c. in, § 11. (r) See (HlhcrVs roue, 5 {'h. 5,")!). (.s) Prenfon v. Lfraitd Coll. Dod- Co., 11 Sim. 327. Compare il/^((ii;//(s v. Grand Coll. Jhrk Co., 10 ib. 519 ; Bailey v. Birkenhead, iCr. Rail. Co., 12 ]5eav. 433 ; Yetts v. Norfolk U)■ a debt of tlie company. No act now in Ibrcu contains any sneli inovision ; but his right to indem- nity in such a case is clear. Whether lii* remedy would be by action or by a petition to wind-up would depend on circumstances. ((/) Ante, p. 407. (i) 42 & 43 Vict. c. 76, § 5. 414 CALLS. nk. III. Clinp. 3. struction of tlu- net, clmrtor, or ntlior instnimoiit, confiniii" Sect. '2. tlie power to iiuike calls. ]}ut unless tlieri' ari' words showing the coiitrarv, the power to make ealls in siieh a ease would ]„■ considered as exhunsted. It would not, however, follow tlmt the returned capital could not he recovered hack {). Calls not paid on the day fixed hear interest at rates vmiv- ing in different companies ; in the cases of companies ^'nvcriK d by 8 & 9 Vict. c. IG, the rate is 4 per cent., see §§ 23 ninl 25 (c) ; and in comi)anies governed hy 25 it 20 Vict. c. 89, nml Table A, the rate is 5 per cent., see Table A, No. G. Culls made by cost-book companies may be made to bear interest lU 5 per cent. (i- shire Union Hail. Co. v. Andmoii, 3 Ex. 401 ; IVdland Hail. Co. v. Blake, G H. & N. 410. MANNFii OF MAKivn Tiir:si. nr> 8eul, 2. I'\((i)t Si) fur US irn'''uliinti('S iimv Imvc boon wiiivod ( /"), it I'.k. III. Clmp. .'J siiiiis that nil inv<,'ularity in iiiiikiii},' ii cull itikUts it iiiviilid ; ;iii(i nil iiTf'iilarity in giving notice nt' it piocliulcs tlu' com- IiTcjjiiliiritioH ill iiiiikintJ tliciu. piiiiv tVinii (.nrnniii},' its iiaymont n^'iiinst ii person who has not leceived a i)roi)ei' notice (;/). But after judgment has been rtciivercd in an iiction for a call, such jud},Mneiit will not be set nsidc on the ground that the cull was improperly niadi; ; •iltli()ii"h the defendant may only have become! ac(iuuiiited with its invalidity Kince the judgment was obtainec against him (/()• The irregularities which are generally relied upon as ex- iiiunitiii" a shareholder from the payment of a call may be reduced to two kinds, viz. (1,) those which atl'ect the resolution for the call, and (2,) those which atlect the notice reiiuiring niiymeut of a call winch has been made. It nniy be useful to refer to each of these in turn. 1. As to the rcHoUttion iiKildn;/ the call. It has been already inejinlar rcso- seen that the resolution to be valid must be made by those lHh'."" '' "^ persons with whom the power to make the call lies, and also bv a competent number of such persons (/). It has also been seen, in an earlier part of the treatise, that what takes place at a meeting improperly convened is not legally valid, and is not binding upon those who have not, by their own acts, pre- chuk'd themselves from objecting thereto (/i). If, therefore, a call can only be made at an extraordinar}' meeting, specially summoned for the purpose, a call made at a meeting not duly sununoned for that purpose will be invalid. ]]ut if a cull lau be made at an ordinary meeting not specially convened, it may also be made at an adjourned ordinary meeting, although such meeting may have been convened specially b^' a notice not stating the purposes for which it was to be held, and although the notice was not sent to everybody entitled to be (/) British Sugar Ri^fininrj Co., 3 mme Co. v. 7iVwc, 4 ib. h'rl. K.'.V J.4(i8. (i) Ante, p. 40!). {'j) See Miles v. Bomjh, 3 Q. B. {k) Ante, p. 305 et siq. ; and sue 845, where the defendant had ac- Garden Gully Co. v. McListcr, 1 App. tually proiniseil to pay the call. Ca. 39. (h) Tliuiius Haven Duck Co, v. (i!) See Wills v. Murray, 4 Ex. Ikll, 5 Man. & Gr. 274 ; and The 843 ; see ib. p. 8G2. •# 41G Itk. III. Chap. 3. Sect, 2. lloKoliition nucil not Htnte when, where, or to whom a call in tu lie pitid. ProHi>octivo cull.s. Intervals be- tween MueccBHivo culls. CALLS. Altlioii{,'li tlio persons inaking ii cull mny iilso ho rcquinMl t„ (Ictcnniiic wlicii, wlicrc, iind to whom tlic ciill is to lie i,.,i,| j, in not m'ccssury tliat tlmy should do tliis hy the rcsdhitimi making the call. It is sunicicnt if these paiticulars iiiv stiiti il in the notices issued in pursuance of si;cli resolution (m). A call nmy be nnide prospectively, i.e., it nniy lie resolved to-day that a call be nnule n month hence, and Ijc piivalilc a month after that (h). So, a call may be made pavaliK- Irv instalments {<>). Hut (unless it is necessary to raise the wlmle capital at once) a power to make calls, as from time to time may be thought necessary, does not authorise! those entnistcil with the power, in calliiif,' up the whole capital at oiuc, uiid make the same payable by instalments, so as to save them- selves the trouble of determining at future periods wht'tlicr aiiv call shall be nuide or not(j'). It is frequently provided that no call shall he made at less than a certain interval of time since the making of tlie last call ; and considerable difficulty has been felt in deteniiiiiiii" the exact time at which a call can be said to be made Afttr some hesitation, the courts have determined that a cull must be considered as made when a resolution that it be iiiade is duly passed (7) : and this view has been adoi)ted by tlie legis- lature so far as regards companies registered under tlie Com- panies act, 18()2, and having no special regulations of their own (/•). ^Vherc, therefore, a certain time is required to ellipse between the making of two successive calls, that time must be {m) Newry, dr., Rail. Co. v. Ed- mmids, 2 Ex. 118 ; Sheffield, dr., Jtail. Co. V. Woodcock, 7M. & AV. iilA ; (ireat Northern Rail. Co. v. Jiiddidph, ill. 24.3. (a) See Sheffield, dr.. Rail Co. v. Woodcock, 7 M. & W. 574. ('() Amherriate, dr., Itail. Co. v. Xorcliffe, (i lilx. (i2!) ; Latrreiice v. irynn, Tj il. & W. .355 ; North- It'e.ttern Rnil. Co. v. McMichael, G Ex. 273 ; llirkenhead, dr., Hail. Co. V. Welder, il). 277 ; Amhenjate, dr., Rail. Co. V. Coulthard, 6 Ex. 459. As to an action of debt for the re- covery of instalments before all are due, see the last tliree cas's. (p) Strat/iinl and Mnirton Eail. Co. v. Strattou, 2 15. & Ad. 0I8. (7) See R. V. Londonihrnj llail Co., la Q. 15. !)!)8, mill C Hail. Ca. 1, sub nomine Ex parte Tooke ; Shav V. Rowley, l(i M. & AV. 810 ; Cmit North of KtKjhind Rnil. I'o. v. Bid- dulph, 7 M. & \V. 24.3. See, as h> cills made prospect ively, ,s7/-//iV/(/, dr., Rail. Co. v. Woodcock,! M.&W. 574. (r) 25 & 20 Vict. c. 8!», Table A. No. 5. .MANNKU Ul' MAKINU i'llK.M. 417 If^is- )re all are 'ton RaU. 518. ((■(■;/ /iKi'. ail. Ca. I. t deed of settlement, but also where there is no express pro- visiiiii upon the subject, and the shareholder has entered into nil alisidute covenant to pay such calls as may be made (a). Indeed, in one case it was said, that the notice nmde the (s) Scft generally a,s to the compu- tation of time, liailwaij Slee2>eTS Si^/i/ Co., 21) Ch. 1). 204. (') See the ca,ses in note (q), anil Stivtford and Moreton Hail. Co. v. i^tfuUon, 2 IS. & A.l. 518. (ii) See U'utsijii v. A'u^es, 23 Beav. m. U) JVellaud Rail. Co. v. Berrie, 6 H. & N. 41G. L.C. (ij) Miles V. Ihwjh, 3 Q. B. 84."), nnd see aiiti; p. .313. (z) 5 H. & N. 423. («) Miles V. nns, and at the times and places, from time to time ap- pointed by the comjiany. Under this act, therefore, there must first of all be a call nmde, and then at least twenty-one days' notice of it must be given (/c), and the notice must state the person to whom, and the place and time at which, the call is to be i^aid. The twenty-one days are reckoned from and exclusively of the day on which the notice is given (/). If the {Ij) Slum V. liou-h'ii, IG M. & W. (;/) See Jl'iilsoit v. A'u/r.,, :i;) Rur 810. iiii (c) Ante, \). 41G, note (i«"'es ' „ . . , govcnieil by tlio that the duvctors ma}', irom tune to tune, make sucli calls act of iso-j, upon the members, in respect of all monies unpaid on their ' shares, as they think fit (No. 4) ; but twentj'-one days' notice, at least, must be given of each cull (No. 4) (»). The notice iiiav be sent by post (No. 95). A call is made at the time w!':ii tlie resolution of the directors authorising it is passed (N'o. 5). The act makes calls specialty debts (§ 16), and gives a short fdi'iu of pleading in an action for their recovery (§ 70). Bv the Stannaries act, 1869 (o), it is provided that calls t" companies . „ . {lovonieil by tlie may be made at any ''aeeting oi the company with special stunnarios act, notice (§ 10) ip). which may be olther given personally or sent ' '" liy post (§ 8). The act does not make calls specialty debts (§ 13), but gives a bhort form of pleading for their recovery. 4. Of the persons Uahle to pay calls. In order that a person may be liable to pay a call, meaning Peisons to pay tlieivby a portiiju of the unpaid-ui) capita' f a coinpanv, he '^'' "'" must either have agreed to subscribe to such capital, or he must have become a shareholder in the company, or, thirdly, his hiibihty must have devcdved upon him as the representative "f a subscriber or a sharelu)lder. It will be convenient to itlhuie— 1, to subscribers ; 2, t'> 'shareholders ; 3, to the repre- >tntatives of subscribers and shareholders. Hi'geikrally on the couipututiuii of bus ihauged its uauie since llic call tiuit;, Kailwutj SLepem Siqjpli/ Co., -I I'll, D. 204. (m) Xewrij, dv., Rail. Co. v. Ed- "mh, 2 Ex. 118 ; Shi'jHi'ld, d-c, M. Co.v, iroodcock, 1 M. & W. S'-i; Gnat Xurthcrn Rail. Co. v. Ufnliil, ib. 243. (i) Auoticeby ii cumiiany, wliieli WiKs iiiiule, may be givoii in tbu new name, ShuclJifurd, Ford ,'ister of shareholders ; but he was held not liable for calls on shares not nuni- 422 CALLS. PcrsonB who are sliarelioldcrs Jiiil'lc to calls. ]!k. III. C'iiai.. 3. A person who is a slmrelioldei' within the mennirif' of iin sirt Sect. 2. ^ . . . "= '' of Parliament which authorises calls to be made on slinre- holders, is liable to calls made in pursuance of the act, altlioiiiy the demurrer. ('.) See Banjdte v. Shnrtntlijc, and Tiujkir V. IbiijJm, ante, pp. 55, 50. (0 The subject of tlie transfer of shares will be alluded to hereafter. (//)) It. v. LiiiuUmdirnj, y the Companies act, 1802, Table A. (/()• The right to forfc.'it shai'es for non-payment of calls, or for other reasons, will be examined hereafter {infra, c. C), but it limy be observed here, that both the Companies clauses con- solidation act and the Companies act, 18G2, Table A., provide tlmt an action for calls may be maintained, although the shares ill respect of which they became due, have been forfeited for their non-payment (r). AVhere this double remedy is not expressly given, it will not be presumed ; and in such a case forfeiture will be an answer to an action (//), provided the for- feiture was in all respects legal, but not otherwise (s). 3. -Is /() till' rcpresentatiri's of sithscribcrs and shareholders. — 111 adverting to the liabilit}' of the executors of a deceased liei'soii to pay calls, it is necessary to distinguish calls made before, from those made after the testator's death. Calls made before his death are payable out of his estate (a) ; and as to cmupiuiies governed by the Companies clauses consolidation act, or the Companies act, 1862, rank like ordinary specialty debts {h). Calls made after his death, are also payable out of r.k. III. Chap. 3. Sect. 2. Stfttutory enact, mcnts on thiH subject. Fiirfciture of sliarcs for non- payment of calls. 3. Calls on llie representatives of subscribers andsbarchoidci's. (.«) 8 & 9 Vict. c. IG, §§ 26, 27. H'ljunt, dr., ]\((il. Co. v. Stmnnc, 1 E.\. "39 ; BirJcenhtad, dr., R(nl. Co. \. Ikommijij, 4 Ex. 426 ; ll'ilmn v. Inrkiihnul, (£■(■., /i'ia7. Co., 6 Ex. li-fi ; ii'. V. Londonderry, dr., Ilnil. i-\ 1.3 Q. 15. !)!)8 ; E. v. /Fnif/, 17 ill. ()45. A.s t(i wlio is a sliareliolJer, see ante, p. 104. (')32&;3;3 Viet. c. 19, § 1.3. {") See 25 & 26 Vict. e. 8!J, § 70, iiiiil Table A., No. 4; but .^eo, also, No. 6, which throws some doubt on the piiint us to wlm is a uiouibor. See anlr, pp. 119, 128. (.(•) 8 & !) Vict. c. 16, § 29 ; 2.5 & 26 Vict. c. 89, Table A., No. 21, Sec Great N^ortlwrn Rail. Co. v. Ki'iinidji, 4 E.\. 417 ; Injli.'S v. (,'reat A^ortkern Rail. Co., 1 Maciiiicen, 112. (;/) See Ciles v. Hutt, 3 Ex. 18. (■.) See Edinhurgh, dr., Rail. Co. V. Hibbkwhite, 6 M. & W. 707. ((() Fyler v. Fijler, 2 Ra. Ca. 813. (//) As to 8 & 9 Vict. c. 16, see Cork and Bandon Rail. Co. v. Gocde, 13 C. B. 826 ; and as to 25 & 26 Vict. c. 89, .see § 16. As to com- 426 Bk. III. Clmii. n. Sect. 2. Calls not paynMe liy executors personally. Unless llicy arc themselves sharelioklers. Trustees in bankrujitcy. CALLS. his estate, if tlioy arc made whilst the shares are hift in his nmnp and if lie entered into any contract wherohy he undertook td m\ such calls as nii<:;ht he made upon his shares {<■). In order tlmt this liahility may attach to the estate of a deceased sliarclioJdHr it is not necessary that his executors should become slinn- holders in respect of his shares, or that they should have lieon named in the contract sought to be enforced against them (//). By the Companies clauses consolidation act it is expressly declared, that the executors of subscribers and sbnrelioldeis shall pny the calls payable in respect of their testators' shares (n) ; but this only means that the executors arc to pav out of their testators' assets ; and unless they have actuallv l)i - come shareholders themselves, they must he sued as executois, and not as shareholders, for such calls as may be songlit to hv. recovered from them(/). As a general rule it may bo taken, that executors are never liable otherwise than in their rei)i'c- sentative capacity, unless they actually become shar(h()l(lers('/), But if they do become shareholders they become subject to the same obligations as other shareholders, and as between them- selves and the company they are personally liable to calls, what- ever the state of their testators' assets may be (/(). If a shareholder becomes bankrupt, calls made before his bankrui)tcy are provable against his estate ; and under the Bankruptcy act, 1883 (/), his liability to future calls is also provable. Therefore, his order of discharge is a bar to all ealls; even although the trustee in bankruptcy may neither sell the shai'es nor disclaim them (A). panics Ljoverned l>y the Staimanus act, 1S()9, (-ee § 1:5 of that act ; and as to other companies, see lioliimiini'K case, G l)e G. M. & (J. 572. Spe- cialty (lehts now rank with simple contract dehts, ?- iV ."'J A'ict. c. 40. (f) Ileu-ard v. IVIimtleti, 3 De (J. M. & G. (528 ; Fyhi- v. Fiihr, 2 Ka. Ca. 813; J/'i7/»' v. Murniij, 4 Ex. 843 ; }',loinit v. Hiplcins, 7 Sim. 51. ((/) lliid., and see liainVi; (■««', 5 Ch. 725. (c) 8 & 9 Vict. c. 16, § 21. (/) Jliii-nihciil, dr. Rail. V". v, ('utr^irorth, 5 Ex. -I'M. (;/) lUnhHu'x case, 4 kyy. ( 'ii. '^V.K 583 ; Weald of Ki„t Cimil i'<>. v, JinhinsoH, 5 Taunt. 8(i0. (/() See Anthitro)t case, 6 De G. M. & G. 572. 428 CALLS. Bk. in. Chnj). 3. Sect. Vf. Defences. H 1 Evidence. Tlie usuiil grounds of ilofeiice to tin action for calls Imve nil been considered. They may be reduced to : — 1. A denial that the defojidant is a person liable to pnv tlic call (/). The cestui que trust or i)rincii)al of a sluuvlioldtr is not liable to such an action (»/). But a married woninn nniv be sued for calls on shares standing in her own name (./). 2. A denial of the making of the call in point of fact. 3. A denial that the call, admitted to have Ljcu hukIo in point of fact, was authorised (y), was made by conipttcnt persons («), or in the proper manner {a), or for pmiur purposes (/>). 4. A denial of any notice of the call. 6. A denial of such notice as the defendant was eiititltd to receive (r). 6. Set off (J). 7. Infancy (';)• 8. Fraud (/). It must be borne in mind, that if a shareholder dues nut avail himself of such defence as he may have at the piopir time, he will be precluded from afterwards disputing either tliu validity of the call, or his liability to pay it (//). Evidence of the making of a call is usually given by pnjving the resolution by which it was made ; and this may be done either bj' the testimony of the company's secretary, or some other person having actual knowledge of the fact, or liy tlie company's minute books, which, as was seen in a I'o.iiRr (0 Bee ante, p. 41!) d «y/., and us to estoppel l)y conduct, autc, p. 421. (») United Kiiifiilom Mutual ylsA yl.s-.wc. V. NcviU, 1!) Q. 13. 1). 110. (..) See 4.5 & 4(5 Viet. v. 7'), §§ 1, C, 9, and nnti', jip. 41, 42. (;/) Ante, p. 414. (.v) Ante,\\ 408. (a) Ante,^. 414. (/() Ante,\>. 409. (c) Ante, p. 417. In an action for culls uguinst a contributory of a limited company being wound up voluntarily, it is no defence that tlie defendant bad no notice that bis name was placed upon tlie li4 it contributories, see Ilriijhtnn Airuih' Co. V. Ihu-ling, L. K. 3 C. P. 175. {(1) Ante, J). 27.3, and iufru, uiuli-r Winding-Ill). As to setting' off n\h not yet due wliere a .'iliarehol'lir Kue-s a comiiany, L'liland v. I'did, L. K. 3 P. C. 17. L'unijiiire Kmf-i cusr, 39 Ch. D. 259. (c) Ante, pp. 39, 422. (/) Ante, p. 422, and Smilh v. Iteexe River Co., 2 V.i\. 2(!4. ((/) See Thames Haven, dr., ''«■ V. Hull, 5 Man. & tlr. 274 ; Thamu Haven, cC-c, Co. v. AW, 4 ib. 552. MVIDENDS. 429 (•Ii;i|itt'r, fti'e in miniy cases made ndniissihle us eviilonce of the ^^- HI. chap. 3. liicts staU'il ui tlu'in (/(). ■ Ilvideiice tliixt the dcfeiuliint was a shareholder is usually KviikHoo, >li\v\\ by the productiou of the company's register, the effect of wliicli has been considered already (j). Kvidcnce that the defendant received due notice of the iiiiikiiii,' of the call must he given by showing that the requisite iiilvoitisements (if any) were published, and that such notice MS he was entitled to receive either actually reached him, or WHS so sent to him as to have probably reached hiin. 'J'his will l»e sulhcient, in default of evidence that what was so sent Iiim did not reach him (J). SECTION IIL— OF DIVrDKXDS. r)V a dividend is ordinarily meant that share of a company's jji'dtits which is payable to its members in respect of their shares. The proper fund for the payment of dividends is tlie excess of a company's earnings over the expenses incurred in (ibtaiiiing them. But it is ohvious that opinions may differ as til tlu' items which ought to he taken into consideration in settling the two sides of the account, the balance of which may l)e properly divided as profit. The power of settling questions of this kind is generally en- trusted to the directors, with or without the sanction of the shareholders ; and (subject to any special jorovision to the CDiitrarv, and to the limits placed on all jiowers of directors and shareliolders hy the doctrines of ttltra v'tres) if there be a ihtference of opinion the voice of the majority nnist prevail, 'fhe majority can decide whether a dividend shall be paid before some particular debt is discharged (/c) ; or before certain (h) See ante, p. 312. (k) Stevens v. South Devon Hail. (i) See ante, p. 57. Co., 9 Ha. 326 ; Corry v. Lomlan- ij) Eastern Union Bail. Co. v. dernj, dr., Co., 29 Bcav. 263. i%wo?i(/s, 5 Ex. 237. i m DivinKxns. Bk. III. Clmp. 3. works are nui.sliod (/) ; and wliat losses ami expenses ouf,'lit to ■ be treated ns ordinary and pnvahle out of current receipts, niid what as extraordinary and i)ayal)le out of cai)itid i>v mmu-v borrowed (///). Hut the power of decidinj^ such questions cnu- not be biwfuUy exei'cised for the dishonest pnr[»ose of lunkiiiir it appear that profits liave been nnuh', when in Initli the euirent receipts liave been h'ss than the current exp(;nHts, miil, in fact, there 1ms been a loss (//). Chkch \s Ikto Under ordinary circumstances, and in the aljsencc of miv (liviilciiiis liavo been hold not agreement to the contrary, monies earned ought to he tri nt( il " "i"^'"- ^(^ profits of the year in which they are paid, iind not ms piniits of the year in which they are earned {o) ; and in asccitiiiiiini,' the iH'ofits of a company for the purpose of making a (liviilcnd, debts iucnrred in the ordinary course of business ought to lie deducted, but not debts incurred by exercising special powers of borrowing (p). Assets, moreover, nniy be estimated at a value which the}' may never realise (7). It has also lieeu liild that dividends nuiy be paid by a company before its wniks aii' finished (r), and although its debts may be luipaid. The creditors of a company may be willing to allow their priiuiiml monies to continue unpaid, provided the}' arc punctually paiil the interest upon them ; and if a company, after defraying iill current expenses and the interest of its debts, has a surplus arising from its current receipts, there is no principle either nf law or morality which requires that such surplus shall le accumulated, or forbids its division as i)rofit amongst tlic shareholders. Whether dividends shall be paid whilst debts remain unpaid, or whether the whole or any part of the surplus of receipts over expenditure shall be accumulated or divided. are questions which it is competent for the majority of slian.- holders to decide (s). (I) Ilmirtic v. Miinmonth^hire, <{■(:., (p) Cornj v. LoiuJotidi'mj Cn„ 211 Co., 13 Beav. 32. Bear. 2(i:3. ((/() See (Irajiirij v. J'atclutt, 33 (7) StrliKji'r'H (•«*■, 4 L'li. 47') ; Beav. 595. Hance's case, G Ch. 104. (II) Bloxam v. Met. Jiail. Co., 3 (r) Broinie v. Monriionthdiin; if'.. Ch. 337. liitil. Co., 13 Buav, 32. (0) See per Turner, L. J., in (s) Steven.^ v. South Devon Hail- Maclaren v. Stainton, 3 De O. F. & Co., !) Ha. 313 ; Cornj v. London- J. 214. Compare Browne v. Collins, derrij Co., 29 Buav. 2(i3. 12 Eq. 586. inVIDKNDS UI;T Ol' CArilAI.. 481 Kxpcnses incidi'utiil to tho fonnntioii of a coinpiiily iin tiviiiiciitly piiitl oil" by iiist;iliiu'ut.i spiviul over a luimbi'r of nk. III. (JImi). 3 Suet. 3. ,111 liviik'U'ls bciiifi paid in the iiu'iiiiwhik' (/) ; iiiul if this is tldiie opt^iily, tlu'ie seeius to lie iiothiii},' illc}.fiil in it. And it liiis liieii dt'cidc'd tliiit if the articli s nllow it, dividends miiy be imiil I'Vt'U liy a limited {•ompiiny, it its inconio exceeds its cxiti'iiditun.', ulthough its whole rapitul may have been sunk 111 II btuiiiiiiK wastnif,' property, c '/., a U'asehold mine, and iilliiiiiiM'' "" provision has been made for replaeinj,' the capital wliicli is wastiiif,' away year by year (/(). llxpeiises properly ehaij^'eable to capital, but paid out of Payment of iiicDiiie, may afterwards be charj^ed to capital so as to increase ]ii'otit out of cai): tul. a iliviileiid. In other words, the income account nuiy in such 11 else be recouped by the capital account, and the two accounts ill' set right by paying a dividend out of capital (.r). 15iit exce}tt in a case of this sort payments out of capital Diviilcnds imi.l , , , . II 1 n^ !• • 1 1 out uf o:il)it!il. ciuiiiot be prolit ; and to pay wliat are caili'd prohts or divulends (lilt of capital is, under whatever disguise, tantamount to re- tiiniiiij,' so much capital t(j the shareholders to whom such imynii'iits are made. In ordinary partnerships there is nothing to prevent the partners from withdrawing and diminishing their liipitiils wholly or in i)art if they all think proper to do so ; ii(ir is tliere any legal reason why partners should not, if they lilnise, bciiTow money on the credit of the linn, and divide it wlidlly or in i)art among themselves. liut neither course coulil be pursued without the consent of all the partners. With ivspect to companies, however, there are reasons why niiiitiil luul money borrowed should not be applied in making iwymoiits to shareholders, even although they may all consent. Ill tlie fust place, such an application of the money is calcu- latcil to deceive the public, and can hardly be made for any I Sue yid- Martin, B., in Ilalc v. iMmtl, 4 Fos. I.K: Fin. 144. Sue, ;il!u, iJiicu'icc// V. Slii\[jicld W'atvricurlti CV, 14 Eq. 517. Ill) Lte \. Nciifchatel Anphalte Co., W. X. 1889, 31. Another «i.se may W suggtstwl. A newspaper nia^' o>t 100,(H)O/. to start, that sum luiii^ s[ii'ut it.s receipts may exceed itii expenses ; the excess may be diviik'd us inofit, ultiiough the rualisalik' assets, iiuliuliii^' the gnod- will, may not sell for 10,00()/. See Buckley, 48G e( sty., oth eJ. (.(■) Mills V. Xorth Jiuil. of lliunos Ay res Co., 5 Cli. C21. Compare Jlooh; V. dreitt IJ'esti nt Iitdl. Co., 3 Ch. 2&2. 432 DIVIDENDS. Bk. III. Chap. 3. honest purpose ; and in the next place, capital raised or Sect. 3. , . , 11. ' money borrowed, in order to cari'y on the busiiiess of tlic cuin- panj', cannot be properly applied for such a wholly (litlVnnt purpose as that of paying dividends to the shiuelKildcirs; (//). Even if all the shareholders can render such a course lt"u], a majority cannot; and the more difficult theoretical question whether all can is of little practical consequence (z). With respect, indeed, to companies governed by the Coni|)aiii(s clauses consolidation act (a), or by the Table A, to tlie Com- panies act, 1862 (b), payment of dividends othei'wise tlian out of profits is expressly prohibited, and will be restrained bv injunction (c). Nay, more, articles of issociation providiiH' i'or the payment of dividends out of capital are invalid, and the directors will be restrained from acting under them {d). Such a payment could not, it is conceived, be authorised, even by the memorandum of association () Table A., art. 73. (f) See ante, note (,;), and Detd v. London Tramways Co., 16 Ch. D. 344 ; Davison v. Gillies, il). 347 n. ; Ulnxam v. Metropolitan L'ail. Co., ,3 Ch. 337 ; Hoole v. Great Jl'esterit Rail. Co., ib. 262 ; Holmes v. Xeiv- castle, de.. Abattoir Co., 1 Ch. D. 682. Compare Bard well v. Sheffield Watenoorks Co., 14 Kii 517, a.s to payment of dividi-uils UTore cajiital is i)roJuctive. (d) Guinne.^s v. Land Corporuliaii of Ireland, 22 Ch. D. 349. Coininre Jknt V. London Traiiuritijs ('o., Ki Ch. D. 344, and see Buckley, p. 4!I0, 5th ed. (i;) See Trevor v. U'ltitioorlh, \i Ai)p. Ca. 40!). (/) (hford Benefit BnHdiio) S.«:, 35 Ch. D. 502 ; Leeds Kitale Lidll in. 149 ; Fliteroft's ease, ib. oVJ ; A'imns V. Corcntry. 8 De G. M. & G, 835, See the decree, clause 4. Tlie decree was made without prejudice to the KXCLUSlON FIIOM SHARE OF I'Uol'lTS. 438 are liable to refuiicl dividends declared and paid on a honii fide ^^- III- ^'l;:*!'- 3- which leir o":ii •h they iind also jliolders •re '.aiiital ,'or])0('atli)n Cuiiiparc i/,s ''il., It) ey, 1). 41(0, twoflh, \i lilinil Si«'., (lit' L'liiW- h. D. 787 ; 11 Cli. 1'. Ili) ; Kwis \k G, 835. (ice to the valuation of assets, althouf^h hucIi assets may ultimately prove valueless (o). Moreover, directors who for fraudulent purposes and in order to induce shareholders and the public to believe that the iifTiiirs of a company are in a favoiu'able position, declare ilivideiids out of profits when thei'e are no i)rofits wherewith to ]iay them, and pay the dividends declared, either out of the capital of the company or out of money borrowed for the pur- jiose, are guilty of a criminal offence, punishable both at common law (/() and by statute (i), and are liable to an action for damages at the instance c^ persons induced to take shares on the faith of such misrepresentation (k). A resolution by the directors or shareholders of a company. Exclusion of ,, 1 iiir !•! j»ii n^ 1 slmreiiiilder from to tixdude a shat ouolder from his share oi the prohts, can only gij^re of profits, lie defended where the right to make such a resolution has been clearly conferred by the act, charter, or deed of settlement by which it is governed. A resolution to exclude a shareholder from his share of profits is verj' like a resolution to forfeit his share, and is illegal unless specially authorised (1). In Adleij v. The Whitstahle Comjjany {m), an incoi-porated A.lley r. r> 1 111 111 Whitstahle company of oyster fishers and dredgers made a bye-law to the Company, effect, that if any member should sell oysters, except those taken from the company's grounds, he should forfeit 10/., and be excluded from all share in the profits which the company might make after the penalty was incurred and before it was paid. A member infringed the bye-law and refused to pay the penalty, and was thereupon excluded from all share of the profits of the company. But on a bill filed by him against right of the directors to recover the Jiviilends back from those who had received them. Compare Turquand wMmhall, 4 Ch. 376. (;;) Set Stringer s case, 4 Ch. 47'! ; A'rtiice'ii case, 6 ib. 104 ; and com'-a'-e OM Bniffil Building Soc, 31, Ch. D,502,ati; •'■'12 ; and Leeds Estate Building Soe. v. Shepherd, 36 Ch. D. 787. {h) See ptr Lord Campbell, in r..c. finrncs v. Pemcll, 2 H. L. C. 497 ; R. v. Esdaile, 1 Fos. & Fin. 213. (i) See t)(/m, p. 44G, on fraudulent accounts. (k) Bale v. Cleland, 4 Fos. & Fin. 117, and other cases, anti; p. 88. (l) See infra, c. 6 ; and Griffith V. Paget, 5 Ch. D. 894. (m) 17 Ves. 315 ; 19 ib. 304 ; and 1 Mer. 107. F F raw^^^' 434 DIVIDENDS. Bk. Ill, Cli.ip. 3. Sect. 3. Divuleiuls pay- able rateably according to the miiuber of shares. Mauglian r, Leamington tias Company. the coinpanj', it was held that the bye-law was invalid (n) ; that the company had no right to exclude any of its luenibers from their share of profits on any such ground as that in question ; and that it was no defence that the profits of wliid) the plaintiff sought a share were actually gone, havin" been divided amongst the other members. An objection that the parties, if any, accountable to the plaintiff, were the officers of the company, who paid those profits, and not the companv itself, was also overruled, and a decree was made in tlie plaintiff's favour. AVhere all shares are on the same footing, the sliareliolikrs v,iU. 2^rimd facie be entitled to have dividends declarcil iindpiiid to them in i>roporti(m to the number of shares they respectividv hold, although the amounts paid up in respect of them may be unequal {<>). The same rule holds even where there are two issues of shares, if, by the regulations of the company, dividends are to be paid to all shareholders in proportion to their shares (j)). But the application of this or any otiier geiiend rule, may be excluded as regards any particular company by its act, charter or regulations. In Mdughan v. Lcdmington Gas Compaiii/ (q), certain share- holders in a gas company were entitled to dividends up ti) 10 per cent., and certain other shareholders were only entitled to dividends up to 7 per cent. The surplus profits, it' any, weru to be applied first, in making up the dividends of past years to these amounts, and secondly, in reducing the charges for gas. The profits not being sufficient to pay a dividend of 10 per cent, on the one set of shares, and also a dividend of 7 per cent. on the other set, it was resolved to pay a dividend of 8 per cent, on the first, and 7 per cent, on the second. It was con- tended that this resolution was illegal, and that the dividend ought to be declared in the proportion of 10 to 7 ; and a suit was instituted to enforce this view. But the Court declined to interfere ; considering that, according to the true construction (n) An action vas directed to be brought to try thi.s question. (o) Oahbank Oil Co, v. CVi(»!, 8 Api). Ca. 65. Of Cdursf, unpaid rails can be set oti' against dividend.*. See, al.so, 8 & 9 Vict. c. K!, § h'O; 25 >.t 2G Vict. c. «9, Tablo A., art. rl. (p) Ibid. ; and hco llridijcml"' Kav. Co., ;i!) Cii. D. 1. (V) 15 W. ]^;33,-5. ON PREFERENCE SHARES. 431: un shave- up to 10 ititU'd to my, weiv years to for gas. of 10 per percent, of 8 per was eon- (livule'.ul ,1(1 a suit oliuetl to struction lid, § i--!t->; A., art. rl. lllrklijnMt'' of the statutes relating to the company, the above proportions r>k. III. Chap. 3. Sect. 3. mi"ht he departed from when the i^rofits were insufficient to • pay both classes of shareholders their maximum amounts of dividend. It is by no means unusual for companies who have expended Preference . . shares. their original capital, to raise (under some power specially conferred upon them for the purpose) further capital by the :ssiie of " preference shares," i.e., of shares the holders of which are to be entitled to share profits, up to a given amount, in preference to the other shareholders. The right to do this has heen already examined (/•). Where preference shares have been issued by competent iiuthority, the terms upon which they have been issued must, of course, be adhered to (s) ; and it has been decided in several cases:', that unless there is some agreement or enactment to the contrary, preference shareholders are entitled to be paid out of tlie proiits of the company their dividends to the umounv guaranteed, before the other shareholders receive any- thing : so that if the profits divisible at a given time are not sufficient to pay the guaranteed dividends in full, the deficiency must be made good out of the next divisible profits ; the ordinary shareholders taking no profits until all arrears of jiuaranteed dividends have been paid to the preference sliare- hiddcrs (0. This rule, however, has been altered by statute, so far as concerns companies governed by the Companies' • liiuses consolidation act(»)> No restdiition of a (Company can vary the rights of the J^'S^'ts "f , lirefcreiioo iioldcrs ot ditferoiit classes of duly created shares (.r). No sliareboKlera. resolution can deprive preference shareholders of their right to be paid the sums guaranteed out of the comi)any's profits as soon as there are any. So long as there are no profits, the prifereiu o shareholders get nothing, for they are not creditors ('■) ^1*. '1. 396. (s) Ilannatiine v. Direct Spanish T'lh Co., 34 Ch. D. i^87. (() See irM V. Earle, 20 Eii. 556, Mil Dtlier cases cited ante, p. 400, iioti; {z). In Banrinr v. Port Mivloc «). SECTION IV.— OP THE ACCOUNTS OF COMPANIES. 1. Of the duty to keep and the right to inspect them. The duty of keeping the accounts of companies necessarily Accounts of " , T coini)anio8. devolves upon the managers and directors, or persons super- intended by them. The right of the shareholders to inspect such accounts is also necessarily limited ; for if every share- holder were at liberty to examine the accounts whenever he desired to do so, it would be impracticable for the accounts ever to be kept or made up in a proper manner. The right of Sliareholders' shareholders to inspect accounts is usually qualified by express them, agi'eement ; but it requires no express agreement to confer the right, for that is a consequence of their right to share profits : and where there is no agreement to the contrary, the writer apprehends that the shareholders of a company are entitled to have its accounts produced at their meetings and to appoint persons to inspect and examine them. Moreover, a right to (o) 30 & 31 Vict. c. 131, § 24 (3). {pZ'^S Vict. c. 19, §§ 3-5. 440 ACCOUNTS Mandamus to permit inspcc tioD. Bk. III. Chap. 3. inspect includes a right to take a co2\v, if inspection is useless Sect. 4. ^ witliout a copy (q). If a company's regulations provide for the inspei'tion of its accounts by the shai'eholders at certain times and subject to certain restrictions, t)ien, it seems, the shai'eholders are not entitled to inspect the accounts, otherwise than subject to the restrictions mentioned (r). Nor does a right to inspect the books of a company necessarily extend to the minutes of the meetings of the directors (s). It has been decided that a shareholder who, by the terms of a company's special act, is entitled at all seasonable times to inspect the books of the company, and who has applied for mi inspection and has been refused, is not entitled to a niiuiilfimus against the company to allow insjiection, unless, before inspec- tion was refused him, he stated for what purpose he desired to see the books, and unless such purpose was, in the opinion of the Court, a reasonable purpose, and unless the refusal pro- ceeded from the managing body (t). When a person obtains from a court of justice an order to inspect for some purpose connected with a pendhig litigation, he is bound to conduct himself in a peaceable, decorous, and gentlemanly manner, and not to make public, or communicate to strangers to the litigation the contents of the documents he may have had produced to him (u). Inspection in an action. ((/) See Mutter v. Eastern and Midland Rail. Co., 38 Cli. D. 92. ()•) See Baldwin, v. Lawrence, 2 Sim. & Stu. 18. In Hall v. Connell, 3 Y. & C. Ex. 707, the Court dis- regarded the restrictive clauses ; hut see Morgan's case, 28 Ch. D. 620 ; Turney v. Bajilcy, 4 De G. J. & S. 332 ; Williams v. The Prince of Wales' Life Co., 23 Beav. 338 ; and as to the aitplication of special rules after a winding-up order, see York- shire Fibre Co., 9 Eq. 650. (ft) E. V. Maiiqidta Mining Co., I E. & E. 289. (t) R. V. The Wilts and Berks Ca7ial Co., 3 A. & E. 477 ; R. v. Tlie Grand Canal Co., 1 Ir. Law Rep. 337. See, too, R. v. Clear, 4 15. & C. 899 ; and generally as to the ri^ht (jf a member of a corporation to iiispi;i.t the corporation's book.s, &c., see Ra V. Tlie Fraternity of Hodmen in Newcastle-upon-Tyne, 2 Str. 1223, and notes to that case ; Holland v. Dickson, 37 Oh. D. 669 ; Midtcr v. Eastern and Midland Rail. Co., 3H Ch. D. 92. In an action for calls tlie Court will not order the com- pany to produce its books in order to enable the .shareholders to fish out a defence, Birm., Bristol, dr., Co. V. IFliite, 1 Q. B. 282. (tt) Williams v. Prince of IVaM Life Ass. Co., 23 Beav. 338. OF COMPANIES GOVERNED BY 8 & 9 VICT. C. 16. 441 The directors of a coinpam' have no power, bj' any resolu- 1''*- m^ Chaji. J. tion of then- own, to exclude one or more of their number from access to the company's books. This has been decided in suits airector to sec against directors who, in answers to interrogatories as to the »'='=''""'*> *"• (Diitents of the books, have sworn ignorance of those contents, and inability to ascertain them, in consequence of orders given bv the other directors to the officers having charge of the books not to allow them to be seen. This answer is insuffi- cient, for the directors interrogated must, if necessary, enforce tlieir right to examine the books, and time will be afforded them for that purpose {x). Some acts of Parliament relating to companies, contain ex- Statutory emict- , , , J. , . incntH relatiii;^ press enactments upon the subject oi accounts, and especially to companies' as to their audit and the right of the shareholders to examine "**="•"***• them. These enactments, so far as they are contained in public general statutes now in force, are confined to companies governed by the Companies' clauses consolidation act, 8 it 9 Vict. c. 16, the Companies acts, 1862 and 1879, the Life Assurance Companies act, 1870, and the Stannaries act, 1887. As to companies governed by the Companies' cla^ises consolidation act. The 8 it 9 Vict. c. 16, contains several provisions relating Accounts of to the appointment and duties of auditors, and to the keeping go™croed by 8 & 9 c. IG. and inspection of accounts, the general effect of which is as ^ * '^ ^"^''" follows ((/). Two auditors (or such other number, if any, as the company's special act may require) are to be elected by the shareholders, and one auditor is to go out of office every year, but may be re-elected. The directors are to deliver to the auditors, accounts and balance sheets before every ordinary meeting of shareholders, and the auditors are to examine the same, and either report upon them or simply confirm them, (x) See Taylor v. Rundell, 1 Y. & C, C. C. 128, ami 1 Ph. 222. Suu, too, Htmu-t V. Lord Bute, 12 Sim. 460 ; Turquand v. Marshall, C Ef£. 112, which, however, was reversed, 4 Ch. 376. (!/) §§ 101-108, and 116-119, ami as to takinc; security from officers entrusted with money belonging to the company, and to the summary method of making them account, sec §§ 109-114. See, also, 30 & 31 Vict. c. 127, § 30. 412 ACCOUNTS I lil Uk. III. (Jimp. ;t. ,i„j ti,(, auditors' report or conrirniation is to bo rend at the Sect. 4. , meeting (c^). Tiio auditors, or any oikm)!" tliuni, iniiy iipiioint an accountant to assist iu the audit {(i). The dirocturs me reqiiired to liave projjcr accounts kept of all monies received or expended on account of the company, and to appoint a bdnk- keeper to keep the accounts. TIk! books of the coinpiuiv mv to be balanced at the periods prescribed in the conipiiny's special act ; and if no j)eri()d is prescribed, fourteen davs nt least before each ordinary meeting. On tlie books beiiij^ so balanced, a balance sheet is to be made up aiul signed by the chairnuvn or deputy chairman of the directors, ami such balaiirc sheet is to exhibit a true statement of the cni)ital, stock, credits, and property of every description belonging to the company, and the debts due by the company, and a distiuci view of the profits or b)ss which may have arisen on th(! trniis- actions of the company in the course of the preceding half- year. The books so balanced, and the balance slu'ct, me required to bo open f(»r the inspection of the shareholders at the principal office or place of business of the company for fourteen days before, and one month after every ordinary meeting, if no other periods are prescribed by the company's special act, and during those periods the shareholders have a right to see the books, and to take copies and extracts there- from ; but they are not entitled to demand inspection of such books at any other time, unless iu virtue of an order sigued by three directors (b). m •• As regards companies governed by the Companies act, 18()2. Accounts of com- The Companies act, 18G2, contains, as will be seen here- panies governed . , . i i • !• i i i by the act of alter, some enactments relating to tlie production oi books aiul accounts to inspectors specially appointed ; but, with some exceptions, to be noticed presently, the act leaves each com- pany to make what regulations it pleases respecting the keep- ing, inspection, and auditing of accounts on ordinary occasions. (s) The audit does not bind the 12 Q. B. D. 68. shareholders, Bloxam v. Metropolitan (b) See, also, as to loan capital Bail. Co., 3 Ch. 337. accounts of railway companies, 21) (a) § 108. Steele v. Sutton Gas Co., & 30 Vict. c. 108. OF COMPANIKS (JOVi;nNKI) IIV 'IIIK COMI'ANIKS ACT, 1802. 113 Rv the roaulfttions, however, in Table A., (ipnonded to tlie "I'- !'!• t;'"n'3- •' ^ Huct. 4. (,ct(c\tlie directors iiro to cause true a(T.ounts to be kept of . ■ T !• 1 !• 1 •!• • Talilo A. tli9 stock m triido, receipts, expenditure, credits, and liubiIiti(;H of llif company. These books are to be kept at the re{,'istered (lilice of the company, and are to be open to the inspection of tlio shiirchohlcrs duriiiff th(! liours of business, subj(!ct to any niis()iiid)lc restrictions, as to the time and niann(!r of inspec- tion, tliiit may bit imposed by th(i company in general meet- iiii'((/). Tiie directoi's are required to lay before the share- holders, once a year at least, a statcnnent of the income and oxpoiuliture of the company (c), and also a '' lance sliec^t con- ti\iiiin{» a sununary of the property and liiibilities of the com- |iany, nnd a printiid copy of such balance siieet is to be sent to I very shareholder (/). Tiie accounts of the comi)any and the balance sheets are to Amlit, 1)0 examined by one or more auditors, the first of whom arc ti) bo appointed by the directors, but the others by the com- l)any at a general meeting (//). If no election is made, the Board of Trade is empowered, upon the application of one- tii'lh in number of the shareholders, to ajipoint an auditor, to be paid by the company (/<). The auditors are at all reason- able times to have access to the books and accounts of the company, and are empowered to employ accountants at the expense of the company to assist in the investigation of the accounts ; they are also empowered to examine the directors and other officers of the company, with reference to its ac- counts (i). The auditors are required to report upon the accounts and balance sheets, and their reports are to be read to the shareholders at the general meetings (k). And it is their duty to enquire into the substantial, and not merely the aiitlimetical, accuracy of the balance sheet, and to ascertain that it contains the particulars, if any, required by the articles (r) By 25 & 2G Vict. c. 89, § 15, ilie refjulutious in Table A. apply to all loiiipanies limited by shares, .mil lurmed under that act, witli the ixception of sucli of those com- panies as bave mconsistent with them. (d) 25 & 26 Vict. c. 89, Table A., 'ther regulations No. 78. (e) lb. Nos. 79 and 80. (/) lb. Nos. 81 and 82. C'/) lb. Nos. 83 and 84. (}<) lb. No. 91. (i) Id. No. 93. (/c) lb. No. 94. 444 ACCdUNTH Bk. Ill, Chap. 3. Sect. 4. iDBpcctinn liy Board of Trtido ; or by insjioctors specially ap- pointed liy the company. Statements to be made by banking, in- surance ami other com- panies Accounts of banking companies. of association, and correctly repi-csents the state uf the com- pany's affairs (/). No director, ond no person interested otlw i- wise than as a member of tiie company in any of its tnuisac- tions, can be an auditor (m). In addition to these regulations, the Companies act, ISlil enacts (m) tliat, ujwn the application of a certain number of the shareholders of any company registered under it, the Board df Trade may appoint inspectors to examine and report on tln^ affairs of the company; and such inspectors are cinpowoied 1 1 call for and examine all the company's documents and books, and to examine the officers and agents of the coini)iiny upon oath. The expenses of the inspectcn's are to be defVaycMl by the shareholders upon whose application they were nppointuil. Instead of applying to the Board of Trade, the sliarelidldcis themselves may, by special resolution, appoint inspectors lor the purpose of examining into the affiiirs of the company, with the same powers as are conferred upon inspectors appointed by the Board of Trade (o). A copy of the repoit of tin' inspectors, authenticated by the seal of the company, is ad- missible in evidence in any legal proceeding (/)). Every limited banking company, and every insurance com- pany, and every deposit, provident, and benefit society governed by the Companies act, 1862, is bound, before it begins business, and twice a year whilst it carries on business, to make a stiiti- ment in a ju'escribed form, showing the state of its assets uiiil liabilities ; and a copy of such statement is to be kept in some conspicuous place in the I'egistered office of the conipiuiy, ami in every branch office where its business is carried on, and every member and creditor of the company is entitled to a coin- of such statement on payment of sixpence (7). The accounts of every banking company registered as limited after the passing of the Companies act, 1879 (r), are to be examined once at least in every year by an auditor or auditors who are to be elected annually by the company at a general (I) Leeds Estate Go. v. Shepherd, 36 Cli. ]). 787. (m) 25 & 26 Vict. c. 89, Table A. No. 86. (ji) 11). §§ 56-59. (0) lb. § 60. (p) lb. § 61. (5) lb. § 44, and Schedule 1, Form D. (r) 42&43 Vict. c. 7(1, §i( 7 an.!". Ol- OTIIKU COMPAXIKS. 445 meetiiig. No officer of the comnaiiv ciin hv elected ixs auditor, Bk lll.oiiap. 3. '^ ' Strt. 4. liiit an iimlitor on quittin;^ oflicc is rc-clij,nble. If lui}' casual viiciiiicv occurs in the oflico of auditor, the survivinf^ auditor lIlllV Cil iitinue to act, but if there is no surviving; auditor, the lirectDrs are to call an extrnordinary ^'cncral meeting to fdl the viK'iiiicy. The auditors are to he supplied with a list of all the liDoks kept by the company, and to have access to all the bouks iiml iK'counts of the company in England, with power to ixamiiie the directtu's or otlim- oflicers of the company in rela- tion to them. It is their duty to uiake a report Ut tho mend)ers (111 tiiu accounts examined by them, and on every ''idance sheet laid before the company in general meeting, stating whether the balance sheet refei'red to in the report is full and fair, and inopeily drawn up, so as to exhibit a correct view of the state (it the company's afl'airs as shown by the books of the company. Tiie report is to be read to the company in general meeting. The balance sheets are to be signed by the auditors, the secretary or manager, and by at least three of the directors. The renmncration of the auditors is to be fixed by the general meeting at which they are appointed. i limited re to l)t; auditors rtenerai n hcdule 1, ;§7 aii'l^. As regards cniiipanics gorenml Inj the Life As.tHninci: Companies Act, 1870, By 33 & 34 Vict. c. 61 (s), all life assurance companies, other Life assunmce than those registered under the acts relating to friendly ''""'?*"'**• societies, are required to make out annually statements of their revenue accounts and balance sheets, and to lay the same liefore tlie Board of Trade, and to furnish printed copies to tlieir shareholders and policy-holders. As regards companies governed by the Stannaries act, 1887. Tlie purser of evexy cost-book mine is bound once at least Cost-lwok ;„ • / 1 . . ■ ., .11 , minin'' coin- in every sixteen weeks to enter m the cost-book accounts panies. showing the actual financial position of the company at the end either of the financial month last preceding the entry, or of the last preceding calendar month, and to convene an ordinary (s) Amended by 34 &, 35 Vict. c. 58 ; 33 & 36 Vict. c. 41. 446 FRAUDULENT ACCOUNTS. Bk. III. Chap. 3. meeting of the shareholders, and to lay the accounts before tin Sect. 4. ^ meeting, and to submit them to the full inspection of all sliuif- holders present. For any neglect of these duties he is liable to a penalty. The accounts, after they have been laid before the meeting of shareholders, are to be printed, and a copy sent to every shareholder, and to the lessors of the mine (/). If Fraudulent accouuUi. 24 & 25 Vict, c. 96. Directors keep- ing fraudulent accouiitij. Directors, &c., destroying book.s, &L'. Publishing fraudulent stateiiient.s. 2. Of false and fraudulent accounts. Before quitting the subject of accounts it is necessary to draw attention to certain important statutory enactments re- lating to false and fraudulent accounts. The act 24 & 25 Vict. c. 96, consolidating the statutes relating to larceny and other similar offences, declares amongst other things that — § 82. Whosoever, being a director, public ollicer, or managiT of anyli.nly corporate or public company, shall as such receive or possess himself of any of the property of such body corporate or public conii)any otherwise lliaii in paynu'nt of a, just uebt or denmnd, and shall with intent to delratid, (Hiiit to make, or to cause or direct to be made, a full and true entry tlureef in the books and accounts of such body corjiorate or public company, shall It; guilty of a misdemeanor, and being onnvicted thereof shall be liable, at tlie discretiou of the court, to any of the punishments which the court may award as liereinbefore last mentioned («). § 83. "Whosoever, being a director, manager, public oiflcer, or iiiemlernf anybody corporate or public company, shall, with intent to del'raiid,desti'uy, alter, mutilate, or falsify any book, paper, writing, or valuable security belonging to the body corporate or public company, or make or concur in the making of any false entry, or omit or concur in omitting aiiy material particuhu', in any book of account or other document, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the (liscretion of the court, to any of the punishments which the court may awuvil, ; - hereinbefore last mentioned. § 84. Whosoever, being a director, manager, or public ollicer of anylinily corporate or public company shall make, circulate, or publish, or concur in making, circulating, or publishing, any written statement or account wliiili he shall know to be false in any material inirticular, with intent to deceive or defratid any member, shareh'dder, or creditor of such body corporate or (0 50 & 51 Vict. c. 43, §§ 23, 25, and 2G, and compare §§ 9 and 10 of the Stannaries act, 18()9 (32 & 33 Vict. c. 19). (i() i.e., by § 75, penal servitude for not more than seven nor less than three (now five) years ; or im- prisonment for not more than two years, with or without liard lidiour, and with or without solitary confine- ment. FRAUDULENT ACCOUNTS. 447 public company, or with intent to induce any person to become a share- Bk. III. Chap. 8. linl.li-r 1)1' inu'lntT theivin, or to intiust or advance any property to such body "^°*' ^- corponite or public coinj)any, or to enter into any security for the benefit tiiireof, shall bi' guilty of a misdemeanor, and being convicted thereof shall 1)0 lialile, at the discretion of the court, to any of the punishments which the CDiu't may award, as hereinbefore last mentioned. 5 85. Nothing in any of the last ten precedhig sections of this act con- Discovery in taiueil shall enable or entitle any person to refuse to make a full and com- such cases, iiltte discovery by answer to any bill in equity, or to answer any question or interrogatory in any civil proceeding in any court, or upon the hearing of any matter in bankruptcy or insolvency ; and no pereon shall be liable to be convicted of any of the misdemeanors in any of the said sections mentioned by any evidence whatever in respect of any act done by him, if lie >hrtll, at any time previously to ids being charged with such offence, have first disclosed .such act on oath, in co'nsecpience of any compulsory jiiDcess of any court of law or equity, in any action, suit, or proceeding whiih .shall have been liondjlde instituted by any party aggrieved, or if he ^llall have first disclosed the same in any compulsory exainination or diiiositinn before any court upon the hearing of any matter in bankrujjtcy or insolvency. The Companies act, 1862, also declares, " that if any Companies act, director, officer, or contributoiy of any company wound up miller this act, destroys, mutilates, alters, or falsities any books, ])apers, writings or securities, or makoo or is privy to tlie 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 pers(ni so otfemling shall be deemed to be guilty of a misdemeanor, and uiiDii being convicted .shall be liable to imprisonment for any term not exceeding two years, with or without hard labour " (.<•). Tlie same act also contains provisicnis by which directors and others may be ordered to be criminally prosecuted for offences relating to a company being wound up (//). The Stannaries act, 1887, enacts that if any false statement Stannaries act, or entry be made, or any material particular be omitted in the acioinits of the cost-book mine with the knowledge of the purser, the purser shall be liable in respect of every such false stnteiuent, entry or omission, to a penalty not exceeding 50^, to be recovered in a summary way before any two or more justices of the peace, wlio have power to award any portion of tbe penalty not exceeding one half to the prosecutor, provided 1887. (.'■) 25 & 2(1 Vict. c. 8!), § UIG. (tur. iiig subjects : — • § 1. 'Die nature of a share in a company. § 2. Tlie amount of a share. ^ 3. The lien which the company has on its memhers' shares. § 4. Of charging orders on shares. i; 5. 'Ihe transfer of shares. § 6. I'hc sales of shares and questions arising thereon. SKCTIi'N I.-OF THE NATURE OF A SHARE AND OF THE DOCTRINE THAT SHARES ARE PERSONAL EST.VTE. S[)eaking generally, a share in a company signifies a definite Nature of a p.. ... ., . ,., , . sliiire in a, poraon ot its ca[)ital. A share in a company, like a share in company. - II I'artnoi'ship, is a definite proportion of the joint estate, after it has been turned into money and applied as far as may he luoessary in payment of the joint debts (u). Brt it includes a li^lit to receive dividends, and, ordinarily, it confers a riglit to v.ite. ^^ hat are called preferential or guaranteed shares, are Preference Untiling more than shares the owners of Avhicli arc entitled to '^^^^°'^' cirtain rights or privileges in addition to those enjoyed by other shareholders {h). (al See iralson v. t^imdlen, 10 Ex, 122 ; !) See ante, p. 435. G O 450 Bk. III. Cliap. 4. Sect. 1. Investing in shares. SHARES. Shares not securities. Shares in companies are unfortunatel,y too often regarded by the public in the ligbt of securities. To " invest inonoy in shares " is ii couinion expression not a little calcuhited Id per- petuate this error. iUit it ouglit never to be overlooked tluit i shareholder is a partner in and not a creditor of the compmiv to -whieli he belongs ; that if the company becomes insolvent, he cannot recover any part of his money invested until tlir company's debts are paid in full ; that whether he is persoiialJv liable for the payment of those debts, and whether the extent of his liability is unlimited or limited, depends upon tlic nature of the company. Shares, in short, are property (r), but tliey are not securi- ties ; thty have been held not to pass imder a btMpicst (if bonds, moneys, and securities ((0 j J^nd no lawyer need be toll that trustees who invest trust moneys in shares do that which is extremely improper, unless such an investment is clearly authorised by the trust or by statute (c). Directors who invest the money of their company in shares of other coin[)iUiies aiv 2)rimd facie guilty of a breach of trust (,/'). A power to invest upon the security of the funds of any comi)any incorporated by act of Parliament, does not authoriM an investment in preference railway shares {[/). A power to invest in the stocks, shares, or securities of an incorporated company paying a dividend, authorises an invest- ment in the stock or shares of an incorporated C(ini[)any paying a fixed rate of interest to its stock or shareholders. But such a power does not justify a piu-chase or even the retention of stock or shares in the name of one trustee oidy, even altlioui.'h the regulations of the company do not allow shares to be helil in the names of more than one person (/;). (c) e.g., for purpo.'ies of aucccssioii duty, A. G. v. Munh-fiorc, 21 (,). 15. 1). 4U1. ((0 Vrjlc V. Kuipr, 8 Eq. 434 ; Collins v. Coliiiit;, 12 Eq. 4.").") ; Hudloilon v. (tOiddshunj, 10 Ueav. C47. (c) Sec :2;3 & 24 \kt. e. 38, § 10, and It. S. C, Old. xxii., r. 17. As to investing in sliares on which the company ha.'i ;i lien, see Ki'in Loiuloii Bradlian llunk^ v, Brodlihanl:, i\ Cli. 1). .302. (/) ILipc v. InUnudiiinal Ftiin.f did ,Vyc., 4 Ch. D. 327 ; -hint i>Uid. Disnmnl Co. v. JJrinni, 3 Eq. 131). (;/) Harm v. Harris, 29 Bcav. 107. (/() Consterdine v. Vtinsti.rdini; ;il J'.eav. 330. Sec, iilso, Bnlhr v. n'itIui:-<, 1 J. & II. 332, where tiio Court ordered siiiircs t" ln' ^"1'' TIU; NAXLIUi; Of A SHARE. 451 3gai'(lo(l .oney in . to per- il tluit :l lompiUiy isolvL'iit, mtil tliL' .'I'siinully ic L'Xlrlit, ipoli till' )t sccniri- oquest I if (I be tola hilt wliicli is cleurly ft'lio invost [tanii's ave ids (if iiny autliori^;e litios of an iiu iiivfst- |iiiiy|myiiig But such tcntiiiu of I altlioudi to bu lifhi dlhaiil:, -21 [onal fi/i'i"- Joint i>tod ; Bi. 139. 29 Be.iv. I)i.s(u'((irt''i •)! 1,, /;(!(l.''' V. L, whdv till' 1„ W ^"I'l Altliouffli shares are not securities on which trustees can ^^- m- *^'|'>1'- 4. '^ . . Sect. 1. invest without an express power so to do, shares in incorpo- . . . 1 rn Shares are stock rated companies are stock witlim the meaning oi the Irustee within the mcan- iict, 1850, and orders for their transfer under that act "lay "ceautsi.'" accoi'diiif:!ly he made (/). Shares in companies are expressly declared by statute to be Sharea in com. , , . • .1 /• 11 • panics usmillv pursonal estate in tiie toUowing (-ases : — personal csuite. 1. Shares in companies governed by the Companies' clauses consolidation act (8 & 9 Vict. c. IG, § 7). 2. Shares in companies governed by the Companies act, 1862 (25 & 20 Vict. c. 89, § 22). Shares in other companies are also, as a rule, personal and not real estate (/i). But it cannot be atlirmed that shares in companies are universally personal estate, inasmuch as there are undoubtedly exceptional cases which render it necessary to examine the constitution of every company before the character of its shares can be determined. The point to ascertain is whether the shareholders have individually any interest iii land as laud, or whether their interest is represented by mere money [1). In conformity, however, with the general rule, it has been latlicr tliiiu k'uve tin-la in tlic luiuie lit' one trustee, (0 See 13 & 14 Vict. e. (iO, § 2 ; J.V Aiiijrh), 5 ]Jc (1. & Sill. 278. See, also, 11,: In-.-i, !) Jar. X. S. Oil, iisto oixlers uiiiK-r tlio Lunacy ivlju- l.itiuu act. (/,) See Partii., iip. 343 i-t wi/. {I) See Morria v. Hbjnn, 27 Ikav, 21S, where shares in an uiiiueoriHj- wted iron company, woikiiiL,' iroii 1,'iit from its own estates, and having ijlutes fur other ]inrposes than those <|f iii'U inaiuit'acture, were held to ''!■ within the Mortmain act, al- llioii!,'li hy the (loed ul' settlement of till' loiiipauy the shares wen; de- d,iiV(l tu he personal estate. This uw was, however, disapproved in EniirUil,' V. iJavU, 4 E([. 272. l!y litt of Parliament New Itivrr shares «o real estate. Set- TincnuLnd v. .1.;,, Atk, 331). Duhentnivs are not an interest in hind, Mikhdl v. Miihcrlii, (') Cli. D. (i.'io ; llukUwurlk V. Iha-tiifort, 3 Ch. I). 185 ; Chaml- hi- v. IbiiirU, 4 Ch. D. (551 ; and A^Jd'iii V. Lord Laiujihde, 4 De G. & Sin. 402 ; Ah.aiiulcr v. Ikantr, 30 JJeav. ir)3 ; and other case.s to the contrary must be eonsidered as over- ruled. See Altiec v. Hain,'.) Ch. 1). 337. Nor is debenture stock created under the Companies' clauses act, 18()3, Ath'K' V. llitire, ahi mii). See as to mortgages of rates, Jcrri-t v. L(tirrciin;2-2V\i. I). 202; Tlwrntoiiv. Ki:iiif::on, l\ay, r);)2 ; lie l[itiri<, l.'i Ch. D. OOl ; as to bonds of ifarliour Commissioners, Martin wLacmi, 33 Ch. 1). 332; Stock of the Metr0.* "Watorwork companies, Ashton v. Lord Laiujdtile, nlii snp.* Banking companies, Aslitoii, v. Lard lAtiujdale, ubi .sup.; (^i) Mwri v Pcrifjall, 1 1 C. B. 90, and 2 De G. M. & G. 599.* Cost-book ^lining cimipanies, ILujter v. Tucker, 4 K. iS: J. 24:j. Foreign Mining cdrnpanies, llaLer v. Sutton, 1 Keen, 234. Insurance companies, see March v. A.-d., 5 Beav. 433, wliero l\w c^uestion arose on tlie liequest of a policy payalde out of the ruml- of the company. * In all tlie cases thus marked, act, (jr deetl of settleniout. In tlie the .shares were declared to he ]ier- other cases nothing was decLirnl a^ sonal estate by the company's charter, to tliis point, (m) niiijh V. Jhcnt, 2 Y. & C. K.v. 2(38, and U'ecklen v. ll'celdeii, ilj. 281, note. (n) Watson v. niacl; 1(5 Q. B. D. 270 ; llulmer v. Norris, 9 C. B. N. S. 19; Acland v. IjCicis, ib. 32; Te2)jier v. Niclwls, 18 11). 121. See, also, Bennett v. Llaia, 15 ib. 518, and Freeman v. Gainsfurd, IS il'. hS.J. (ii) Tomllnson v. Tvi.dinsun, !) Beav. 459, contra, caunul be relivl n])on. ( 2> ) ii^are \\ Cmiherkd^je, iO Be.i\'. 503, contra, was overruled in iV- icards V. IMl, G Dc G. M. & G. 74. TIIF, NATURE OF A SHARE. 453 2 Sharca not inf crests in hind within the meaning of the 4^/^ lik. III. Chap. 4. ■ ' hCCt. 1. scrtidH ofilir Stdtiitr of Fmmh. \V;itt>r\vork CDinpimii-s, DVujh v. Brcat, 2 Y. & ('. Ex. 2C8 ; IVceJdey v. JfVJ,/,;/, il). 2«l,iiote. Co.'t-tMiok Mining conipiiiiies, Povell v. Jessnpp, 18 C. B. 330 ; Walker V. D.nilM, 18 C. 13. S4.-) ; Watmi v. Xpraflnj, 10 Ex. 222 ('/). ilankin;,' ciunpanius, Hnmlih; v. Mitchell, 11 A. & E. 205. liiiihvav companies, Duitctift v. Albrccht, 12 .Sim. 18!) ; llradky v, Holdsuvrth, 3 M. & W. 422.* Statute of frauds, § 1. Altlu)U''h, liowcvcr, sliarcs in companies holding land are Shares, how far 1 T • 1 IP p 1 1 goods and chat- iiiit interests in land, it does not thoreiore lollow that they ttls. imvc all the attributes of goods and chattels. 1'hey are not Cdods, wares, or merchandise within the exception in the Sliunp acts, exempting agreements relating to the sale of ifoods, shares, and merchandise from stamp duty(/-). Nor are they goods and chattels within the meaning of the Factors acts (.s) ; nor within the seventeenth section of the Statute of Frauds, which requires an agreement for the sale of goods and cliattels for the price of 10/. and upwards, to be in writing (t) ; liiit tlu'ir price may be recovered in an action for " goods and cliattels" sold and delivered («) ; they were bona notahilia in the diocese where tlie chief office of the company was (v) Vm\. .l,i.-'-,„, 7 B. >!t ('. 40!), in wliicli it was ludil tliat a .sliari; in ii mint' was ival estate, and could ii"l be traiisfeiTi'd except by deed i' si';irct'ly I'ousisteut with the nio- ileni decisions. In lioyce v. Green, liatty, COS, cited in Sngd. Y. & P. p. KJl, eil. 13, a sliare in a mining loniiwny was lieUl to he an interest ill 1:111(1 wiiliiii tlie meaning of the 4ili scftiun iif ilie Statute of Frauds, ilif shave having been regarded as ■A share of the land as land, rather lluui as a share of a money capital. if this really had been so, tlie case «"ul(l liave been rightly decided (Mf Wnimu V. Spratley, 10 Ex. i-2i;Ha!itn- v. Tncbr, 4 K. & J. 243); Imt having regard to the terms of the Company's act, it is dilheult to arrive at the roncdusiou that the shareholders had more than a money interest. (/•) Kuiyht V. Barber, 10 j\[. & W. m. (.s) Freeman v. Appleyard,ii2 L.J. Ex. 175, ami see 38 Ch. D. 408. (0 See Humble v. Mitchell, 11 A. & E. 205, as to banking companies ; Temped v. Kilner, 3 C. B. 24!), as to projected railway comiKinies ; IFalsuit V. Sprutle)!, 10 Ex. 222, as to cost-book mining companies ; JloH-tby \-. Hell, 3 C. B. 284, and Dunciift V. Alhrecht, 12 Sim. 18!), as to railway companies. See, too, Ci)lt v. NetterciU, 2 P. W. 304 ; I'ickerincjv. Appleby, (.'cm. 351. (») Lawton v. Hickman, !) Q. B. 563, railway shares. p — -^ 451 siiAiirs. Uk. III. c'lmp. i. situate (r) ; and they have been decided Sect. 1. Chose in action. C'olnnial l'.ank V, Whinnoy. f^landcr of title. bo propovty in respect of whicli bail may justify (.r). "Whether shaics in u cost-book mine are goods and effects attachable in the l.,.i-.l Mayor's court has been discussed, but not decided (//). In Colonial Bank v. Wliinnrii (~) the question whotlier shares are choses in action ■was much discussed, and it was ultimately held by the House of Lords that shares in a com- pany incorporated by a special act are things in actiou within the meaning of the proviso to the reputed ownership clause in the Bankruptcy act, 1883 (a). Shares in companies governed by modern statutes ditler, however, in some important respects from ordinary ( hoses in action; the legal, as -well as the equitable, interest in them is capable of transfer ; and where the legal ownership in tlum, or even only the legal right to be registered, is acquired hy n honiijidii purchaser for value without noti(;c of a pi-ior equit- able intei'est, the title of such i)urchas(>r cannot ho im- peached (/>). If a share in a company governed by the Companies sut, 18G2, or the Companies' clauses consolidation act, or by imy statute containing a provision similar to § 30 of the Compiuiit ^ act, 18G2, is equitably assigned or mortgaged more than ((uce, the priority of the assignees or mortgagees will bo determined ccctcris parlhiis, by the priority of the ^assignments or mort- gages, and not by the priority of the notices thereof, given tn the company (c). An action may, it is apprehended, be sustained by a sliaii- holder whose title is slandered, and who can prove spceiid damage (d). ()•) See A.-G. v. Jliijuiii-", 2 TI. & !N. 33!), railway sliavos. (/■) I'ifrpiiiiit V. Jlnii-cr, 15 ^[. & "\V. 201, 10 Jur. 7!). (//) Trcdinuirk v. Olinr, .5 II. & N. 780. (z) ]] A]!]), (,'a. 42(i, reversing; 8. C. 30 Ch. 1). 201, where all tlie earlier authorities will lie fouml. (rt) 40 & 47 Vict. c. ')2, § 44. Tiic cH'uct is that shares do not now jiass to trustees in hanla'nptcy ni:dev the rei)Uted ownership clauric. Sec infr'. Ch. VIII. (/)) Sec infra, pp. 471 '' -'c/, uiidiv Iraiisl'er.s in blank, and tlie ucxtiiotr. (i') Societi' Gi-nenik df I'um y. ll'nlkcr, 14 Q. 15. 1). 424; II Ap].. Ca. 20 ; overruling Mnrtin v, Si:d. 434, As tn (listvibutiun of snrjilus a-^-ets, see hifra, 1). iv., >■. 1, § i:!. (') Sir ,S'o/ii(.s' V. Currir, 1 !\. i^ ,T. 'ifi'i ; li'diiiinii: hniprrtf Co., 3S Cli. 1'. 171 ; llrUhjanit^y Xae. Co., 3!) Cli. 1). I. (,/■) Src OolIiiDil: Oil Cii.y. Crum, «S App. Ca. (!.j, wlu'i'i! tliu (lividi-iids were piiyubh' ia pioportioii to tlu; shares held. ^m 45C SlUUKS. Bk. III. Chap. 4. Sect. :). Lien of company on Hhiire of iiiL'nil>cr. Lien of one Hliait'liolilur iis a^'aiiihit auotiier. RlicaiiL V, l^'uiilii. Lion of ciini)iiiny lor (leljts iliiu to it. riiikett i: Wikiit. SECTION III.— OF TIIK LIEN WHICH A COMPANY HAS ox Till- SIIARE.S OF TIlEIll MEMIiEUS. Each member of an ordinary partnorship lias a lien dii tin share.s of his co-partners for what is duo from tlicni as purtncis to the Ih'm (//) ; and by analoj:,'y to this rule evvry cimiiijuiiv shouhl have a lien on the shares of its memberK for \vlmt mnv be due from them to the company in respect of such slians. The writer is not aware of any case expressly cstablishiiif^'sucli a lien in favour of companies generally; but he (oiicc; cs that its existence cannot be successfully disputed, oxcoi)t whew It is inconsistent with an express rif;ht of transfer ; and lie lins iiut met with any decision or dictum opposed to this view. It must, however, be observed that the lien wliich cudi partner has on the assets of the partnership, and on the sliiiiv> of his co-partners, cannot be held to reside in every inciiilicr of an incori)orated comi)any, without considerable modificiitimi ; for its existence is to a gvoat extent inconsistent with tlic principle that a company is distinct from the individuals coin- l)osin<5 it, and would destroy many of the advantages resultiii;.,' from that principle. Upon these gx'ounds Lord Cottenhani, in lihrtiin V. Smith (h), declined to restrain a creditor of a ((iminiiiy from proceeding at law against one of its mendjers ; althouf^h the creditor was himself a member of the company, and it was insisted that each member had a right to have the accounts of the comi)any taken, and to have its assets a))i)lit'(l in ])iiv- ment of its debts. Again, the ordinary partnership lien is inconsistent v.ith mi unrestricted right of transfer. Hence it was held, in I'iiihn v. WrifjJtt (i), that an Irish banking company had no lien en the shares of one of its shareholders for advances made to him by the bank. The Court was of opinion that with rcspccf 1 1 the advances, the shareholder was in the position of an ordi- nary customer to whom the bank had advanced money. avA (;/) See Partn. 3."j1 (7 wry. Sol- also Dunluj) v. l)Hiih>p. I'l ''li. (It) 2 Ph. 72G. See, too, Hanliiuje D. r)8;3, infra. Coiiii)arf llvjuf v. V. Webster, 1 Dr. & Siii. 101. iJandcson, 2 E.\. 7-11 ; 7:' y«"' (i) 2 Ila. 120, and 12 CI. .«• Fin. Plant, 4 Deac. & Ch. WK wiica 764, sub nomine Munvn v. Piuhcti. there was an a^reenieut lor litii. T.Il'.N ON SHARES. 487 that what was due from him as a customer did not givo any ^^^ IJI- ciiap. i. . Sect. u. liirht oi' lien upon his sliaios. J he question arose between tlie bank and a transforet' of the shares of the customer; and t,i Iiiivc allowed the lien would have gone far to destroy the Uiiust'enibility of the shares. The inconsistency of the lien nmtendcd for with the general objects of the compiuiy is well i»ut by the Vice-Chancellor "NVigrani iu the ease in i|iU'stioii. A"ain, in Dnuhij) v. Dimlop (/.•), a banking company hud, by Dunlop v. its deed of settlement, power to forfeit shares if the holder did "" "''' ii()t on demand pay all monies due from him to tlu; company ; and shareholders indebted to the company could not transfer tluir shares. But it was held that these provisions gave the company no lien in the sense of an e(iuitablc charge on the sliares of a person indebted to it enforceable by an action for their sale. It need scarcely be observed, that if it is expressly enacted ARiccmcnfs „ , ■ for lien. (IV ai,'i'eed by the members ot a company that tlie company >li;dl have a lien on their shares for all monies whi(di may be duo troiu them to the company on any account whatever, a lien will lie created in cases where it would not otherwise have existed ; iiiid the lieu so created is not a mere passive right of retainer, l)iit is au equitable charge actively enforceable (/). In the case I if companies whi(di are exempted from the duty of taking notice iif trusts, the lien is available against a shareholder who is merely a trustee for others for debts due from him personally ; :iii(l it is ctmceived that this is so even if the purchase of the >liiires was a breach of trust {in). On the other hand, the 'oiiipany has no lien on shares held by a trustee for the debts (it tlie cestui que trust, and has no right to transfer the shares trom the trustee to the crHtui que trust iu order to assert such a lien (/(). So far as the lii'u gives a right to prevent a transfer, it is available against all persons claiming under a member (i) il Ch. 1). 583. The question aidjL' Letweeu the devisee oi land iiiortgaged to thu company and a l>!;ati'e of the shares. The latter was held not bound to contribute witli the furnier to the payment of the mortgage debt. (/) lie Lewis, (J Ch. 818. ()h) Ncv London and Brazilian Link V. Brockkhanh, 21 Ch. D. 302. ()() Ystahjfera Gas Co., W. N. 1887, p. 30. 4l|i ifii •15H SIIAUKS. Kxtcnt of lien. Lien of cnni- l>imie» ({ovcrncd liy |)!irticiilar Htatutcs. lik. ni. Chap. 1. i,^(l,,|)tj.(l to the C(>m]i!iny (o). NVIirtlur it provonts u tmn^r, r if the incmhci' hns j^ivcii lh(> conipniiy ii hill, for the niiiomit duo, mid such hill is still vnnniiif,', dcpoiids iiiinu tlic tnic cin- stnictioii of the fimctnicnt or ii^rt'cnu'iit. 'I'lic ( uitcikv ..f the hill will usually he found to suspend the licuiji); Init a case iiuiy arise where it does not jji-oducc lliis cllcct ((/). J'rimd facie ii cliiuse conferring' a lien on slnncs will ( xtciul not only to the slinres, hut lo dividends mid ntln r inuncvs payidde in respect of them (/•)• As refifards l)iinln account of any other niiittei- or tjiinn whatsoever {.s'). Unpaid-up shares in a <'omi)any governed hy the ('o^lp^lli(•^' clauses consolidation act, are not transferahle so hmi,' iis niiv- thing is due to the company from their luddei' lur (•;i!ls citln )■ upon them or u])ou any other shares (/). Cost-hook mining companies are not Ixmiid to recognise transfers, unless all calls on the shares transferred, with interest and exi^enses, have heen paid (/(). The Companies act, 1H02, contains nothing on this subject. neither does the Letters Patent ai i, 7 "NVm. i .V 1 Vict, c ?■'. But hy Tahle A. to the C'om])anies act, 1K()2, it i> piovidi il that the company may decline to register any tiansfer of slinvc^ made by a meiuher who is indehted to it (./), This urticK' applies to all debts owing hy a member ti> tlie couipaiiy limv- (o) Ex parte Plant, 4 1). &(.'. l(i:5. {))) Slnrl:tn)i jValhalilr. Tnni Co., 2 Ch. 1). 101, wliicli .see as to tlie words " due " and " indebted." {q) LoikL Birm. awl H. Staff. Jhnil, 34 Beav. .332 ; but see tlu; case in tbf T"'eceding note. ()•) iiV> Levin, G ("li. SIS ; Hainir V. JJandcsoii, 2 Ex. 741. (.s) 1 & 2 Vict. c. , § 4. Sec /sx jiartr, Daridson, 1 Mon. M. ]). & DeC. (i48; Kx parte, (Jabkrolt, H ib. ;}(!8. (/) S ^- !) Vict. c. H!. ^ T! .7V- hir.-'tij V. .l/io)(7(''.-;''r ' it'. Jiait. Co., \j. [\. . 'M Mvi 471. (ii) :5:i&.33 Vi. . lit, §»• (x) 2.") & 2() \'ict. e. .'•9, Tit' ■ A.. lb 10. Tlii.s liardly ci'ui'ers,. i:.'i: to have tlic shares sold i'or payiuen: of the debt. As to tbc right to ile- (hict debts fr(jni dividends, sio A. 7.">. I,li;\ >)S SIlAKlls. •i5!) rvor rd ntnu'tcd (//), nnd wliotlitr llic dclit is Dwiii^; Iiv liim i''*' ''I- ^h»l'- ■' Sect. 3. mil tiiliOil irguH. solely or jointly with others (.:). Assiiiiiiiicj n company to havo ii lion on tln' shiu'cs of a I'rinriiy nf liin lucinlu'r lor nil niouoy which he nniy owe it, Id us sui)i)osc j,), limt li'' plcd^CH his shares. 'I'lic i)lc(l;^'cr must ho trcatod as li:iviiii,' notice of the lien; and as regards nioin.'ys then duo to till' coiiipimv the Hen will prevail. With respect to moneys 110* ViO t then due to the company, there is nn)re difliculty. ft uM 1)0 ol)viously unjust to the comi)any to cnahlo the uu'inhi r to (lcpriv(i the company of its lien for money which al'torwiu'ds heconies due from him \>y virtue of his contract of inonibcrship, and it is ap2)rchcnded that for sncli a deht the lion takes priority over the pledge (. v. Bringn r.nuifoni r,aiik- ,(■('().{(•). 7i/'/////-s' (('• ( 'o. was a collieiy comi)any governed l»y nHggs'&^oom!' tlic Companies act, 1S()'2. One of its articles of association !'*">'• I iititled it to a " first and permanent lien and charge avallahle ;it kw and in equity upon every share for all dehts due from till' holder thereof." A shareholder deposited his share certi- licates with his bankers as a security for tlu' balance due and to become due on his current accoiuit with them. Notice of this pledge was given to Bruiffs (('■ Co, Afterwards, the share- ( ) 7::/ iHirl''. Striiifiri; !) Q. V,. U. (■.) See jicr Hall, \.-C., in BcntJiam Milk Sinniiiiirj Co., 11 Ch. D. !)00. (rt) An assi^'nue of a share in u ]«rtnirslii]) takes only what tlu; iKirliii'i' is entitled to when ]iaiil onl. Sii- rartii., I' (Vl. ('i) Drtiilford Jlankinrj Co. v. BrvjrjH .[■ Co., 12 App. Ca. 2!), leversin- ^.0. 31 Ch. 1). 11), aii.l afHrmini; S. ('. 2!) Cli. I). 14!). MiW>i V. NcK Zi'idiuul, (£•('., (.'(/., 32 Ch. D. i:()6, is overruleil hy tliis decision. ((■) See llir last note. The case was (leciilt'ij in eonfoi'niity with Holt v. llnphiii.'son, U II. Ii. ('. .Ml, the prin('i|il(' of which was also followed in tlie Scoteh case of Ihiion UuhI: nf ,"fSr-jtla)i date (,/'). "Where shares are charged by a judge's order under 1 ^^ 2 Vict. c. 110, the dividL'uds must nevertheless be paid to the judgment debtor; for he is the person entitled to thciii iit law ((j), and his receipt discharges tlie company even in equity {h). The payment of dividends to a particular shun- holder may, however, be restrained under ij \'ict. c. H, !^ 1, ir und"r R. S. C, Order XLVI. (/), and an interim order l(»r tlli^ ((/) See Pavtu., . 350 (7 .-.•«!/. ((/) See i''-^W(:/- v. ('hrirhiU, 11 ('■) See diislow'.i Trust X, 20 Kij. M. & W. 57; t'huirhill v. Ihnh ■■/ ()77. Kiuilatid, il). WZl. (/) Sci- as to tills, 7;nW.r/ v. (/i) See L'nV^-/ v. /FiViw, 3 lU n'ilkiiu,S Ha. 235 ; h'cccc v. raylcr, 235. 5 De G. it S. 480. (/) Sop i)ifra. CHARGING onPEU ON SHAIIES. 461 purpose can be obtained, although the six months above men- Bk. III. Chap. 4. tioned have not expired {k). As a charging order only affects the interest of the judgment debtor in the shares charged, if he is a trustee of those shares the ordo'^ is useless to the judgment creditor {I). The interest of a cestui que trust of shares may, however, be charged by an Older in the proper form (/«) ; but not, it seems, if Iiis only interest in them is in the produce of their sale («)• An order nisi may be obtained ex parte, and without notice Order uisi. to tlie debtor ; and it restrains the company from permitting a transfer of the shares held by the debtor, or by any person in trust for him, until the order is made absolute or discharged ; luid if the company penuits a transfer of the debtor's shares (li ring the continuance of the order, the company becomes liable to the creditor to the extent of the value of the shares tnnisfcrred ('»). An ordei- n'm is to the effect that unless cause be shown to the contrary by the judgment debtor within a given time, the shares in the company, standing in the name of , shall be, and shall in the meantime stand, charged with the payment of the amount for which judgment has been recovered {p). The order nUi prevents the shares from being transferred or dealt with, and when made absolute the order takes effect from the date of the order nisi (ij). The order is not " an execution against the goods of a debtor " within § -15 of the Bankruptcy act, 188'3 ((•). For the purpose of obtaining the full benefit of ■r 1 \ -1 (1 to thi' tlanu at even in ar share- •, S h '■' r lor tlii^ nrhlll, 11 V. lii'd "1 iilHi', J 111, (/.■) Sec mitu V. ■L:tl'nr-<, 3 Jfe. & li. '.'>''2; linrdoa v. Edivards, £1 1,1. li, 1). 488. ((] dill V. C'lidiiu'ntal Iftiion '.'<(.-.' ''■".,L. li. 7 Ex. 332 ; conipuie t'nujij \.TiVjlor, L. U. 1 Ek. 148. [ill) See '-'(•((;/(/ V. Tmjlm- (Xo. :i\ L R. 2 Ex. 131 ; Soidh-}r,xli'nt L-Kii L'ii. V. Itubirtson, 8 Q. 15. D. 17. •It) l-lio.'U V. U'l-iHrh, L. U. l E\. l.)4, [v) 1 & 2 Vict. c. HO, §§ 14 and l';3&4Viet, c. 82, § 1. R. S. 0. (Jrd, xlvi. 1'. 1. (p) Fin- the form .^cott V. /,())•(/ I[aKtiHg>i, 4 K. & J. G33; //'<(«.? V. Purter, 3 K. .t Ij. 743. See those cane.s as to the priorities of creditors. See, also, ante, notes {I), (m), (n). ((•) He Eidchinwi, IC Q. 13. D. ol5. 1G2 SIIAUKS. \r, 15k. III. Chai). 4, Sent. 4. Effect of arrest- ing debtor. What .ire public comiianies. MacintjTC r. Coniiell. WJiiit sii.ircs may be charged under 1 k 2 Viot. c. 110. tlie order, application must be made to tlic court in separate in'ocecdiu^s for a foreclosure or sale {s). If tlie creditor causes th:; debtor to be .'rested befure tln' sliares liave been applied in satisfaction of the debt, the biiiclit of the charging order is lost {t). The statute which enables sliares to be charged in the niiniiirr above explained, applies only to " public conipauios ; " {}i\ but there is no statutory or other authoritative definition of this i)hrase ; and questions of considerable difficulty may cmi- se(piently arise with reference to many companies, as tn wlietlier they are " public " or not. In ]\I(icintt/rc v. Council {v), the Court came to the conclu- sion, 1, that transferability of shares was not the test df publicity ; 2, that the attribute of publicity could nut be denied in the case of a company empowered to sue and be sued by a public officer, and required to keep a register of its shareholders and to make official returns of their names and addresses. Taking this decision as a guide, and having regard to tin law relating to companies at the time of the passing of tlif 1 I'c 2 Vict. c. 110, the following companies must be eonsidereil as public companies within the meaning of that act : — 1. Joint-stock banking companies governed by the 7 (ieo. 1. c. 4G (.r). 2. Joint-stock companies governed by the Letters Patent act, 7 Wm. 4: k \ Vict. c. 73 (/y). 3. Incorporated joint-stock companies generally. Incni- poration itself makes a company a public company ; for its existence is authorised by public authority, viz., the Crown (,■.) See Lcyijott v. U'cat.rn, U (). P.. 1). 287; Bribed v. WUIdas, ;] Ilii. 235, and Mucin tyre v. Cutinrll, 1 Sim. N. S. 22."), 252. (0 1 &2 Vict. c. 110, § 10. I'.iit arrest for dclit i.s now only possiMe in (.tLSus excepted by 32 & 34 Vict, e. G2, ^< 4. • ((') Sec loo R. S. C, Ord. .\lvi.. r. ((■) 1 Sim. X. S. 225. St-i' a!-( Carr v. (ln[lith, 12 Ch- I\ 055. (r) Marintijrr. v. I'oiuirU, 1 Sim. N. S. 225, relatwl to a joiut-slock banking company yovenied I'V . (ifo. 4, c. 4(1, anil 7 & 8 Vitt. c. U:!, and removes the iluubts fornuilv I'nttTtaiued respectiiij,' such com- panies. See Graham v. Cotindl, ii' L. .). Ex. 3til. (;/) See Macinl>ji-e v. CimHiU, i Sim. N. S. 225. CHAIIGINU OliDKK ()\ SlIAltKS, 4G!?. or the legislature, and is required by the sume authority to he i!k. HI. tilinp- -l- imblicly recoj-'iiised. lliiiiicorpornted coiiipaiiics, :i(it hoiiig hanking curnpanies, (.'ovenied by the 7 (ieo. 1, e. KI, or companies governed hy the Lt'ttors Patent act, are prinu't facie not public coni- piinii's (.-). This last conclusion, if correct, is of great importance to As to cost-ljook • r 1 .1 ^^^ • ■ \ e oomi.unies. iiuiuiig companies lormed on tlie cost-book prniciple ; lor il tlksi' coiupanics are not public companies within the meaning nil \ 2 Vict. c. 110, it follows that their mines and plant may Lf sei/.cd under writs issued against individual shareholders for their separate debts. And this appears to be the case ; for iiltliougli the writer is not aware that the propriety of such a seizure has been actually decided {n), ho is enabled to state of liis own knowledge that if judgment is I'ecovei'ed against a sliiuehokler iii a C'ornish cost-book mining company I'or a private debt owing by him, and a y/.,/!^ ujjon such judgment is delivered for execution to the sheritf of Cornwall, he treats tlie company as a mere partnership, and seizes its i)roperty iiiiil sells the share and interest of the judgment debtor therein ill the ordinary wa}'. This is not so well known as it deserves tobe(//). Whether shares can be attached in the Loi'd Ma3-or's court Attacliment of appears doubtful (r')- 111 eonncction with this subject it should be observed that llestiviiu'mg iiny party interested in any stock or shares can, by fding a " *" "' piv>iier uliulavit and notice, and serving it, i. 'strain any public cuiiipaiiy from permitting the transfer of any stock or shares slaiuliiig in the name of any pei'son in the books of such cora- paiiy, or from paying any dividend thereon {d). The mode of (•.) St'i/ tile Judgiiuiiilol' Mac.iidijn: '■'."ititdl,} Sim. N. S. 22r,. :') h\ Xichdll.i V. liusriranii', (! C 1!. N. S. 4hO, the ([ue.-tiou wh(.'lh!T ■li^ire" in eo.st-bouk minus e;iii lie clitoil under 1 & 2 Virl. e. 110, VM>lllnotud hut lUit (IfCiikMJ. ;'') The writer is enabled to make tlie uVive stateniunt as to tlie prue- ti^e i,f the shei-ill' of Cornwall, by having himself (as trustee) issued exeeutiou ai^ainst ii person who was a shar(dioldei' in several fN)i'ni>h eost-book mines. (^)u. it' the nets 18(19 and 1887 have rendered unin- (■nr]iiirat(Ml enst-book comjjanies pub- lic eom|ianics I (-■) See Trxliiuiirl: v. dliur, ;J 11. & N. 780. ('0 f) Viet. c. 5, j; 4. i^ I 464 THAXSFER or SIIARES. nk. III. Chap. 4. procedure is now regulated bv R, S. C, Ord. XLVI., to win,.], Sect. 5. the render is referred (e). Tlie restraint i.s temporary nnlv until the Court itself makes an order. Right to transfer. Consent to transfer. No consent requisite. SECTION v.- OF THE TRANSFER OF SHARES. 1. Of ordiruiri/ trauafcvs. One of the most important distinctions between purtiiersliips and companies is the comparativel\' unlimited right of members of the latter to transfer their shares (/). In what are ciilled scrip companies this right is wliolly unlimited ; the rie I'asn'.'i case, 4 De G. & J. 544. (h) Moffatt V. Farqnhar, 7 Ch. D. 591 ; litmntoit Iron, dr., Co., IG Eq. 55!) ; /r«'.-i?o/C.s ra.ir, 4 Cli. 20, re- versing 6 E([. 238. Compare /. jnrte Parker, 2 Ch. 685. ((') lb., and see J'ff'-nj-^ v. Finith, ■') Russ. 158, and itifra, hnoiv iv., under the head Contrilnitorii*. Compare South London Fifh ilarkd Co., 39 Ch. D. 324. CONSK.NT TO TKAXSI'-ER. 405 ling cum- dfclariiii;' ■h. 20, v.- )IlipiUV /■■' s V. ^milii. lidok iv., tiiliutorif.i i,h Marhd rciiuisite. such transfers fraudulent and void (/.). But the company may Bk. ill. chap. 4. be precluded from disputing the validity of a transfer by its '■ — — ^ — dealings with the transferee ■.). But notwithstanding the length to which the courts have FraiKlnlont gone in holding the right to transfer to he free from all implied restriction, a transfer which is fraudulent in the sense of not being a real transfer out and nut, or a transfer made for a fraudulent purpose, can be lawfully objected to by the direc- tors (»/). But a transfer to avoid future liability or to multiply votes is held not to be fraudulent (/()• Wliere, by the constitution of a companj', certain definite Consent rostrictidiis are placed on the riglit to transfer its shares, the directors have no implied authority to impose an)'' other restrictions on the exercise of that right (o), e.ij., if the only I'l >lriction is that no calls shall be in arrear, the directors can- imt refuse to permit a transfer, if all calls made Iiave been imid. So, again, a right to object to a transferee does not entitle them to object to a transfer to an unobjectionable pei'son, idtliough made fur a purpose the directors may disapi)i'ove, r.f/., to multiply votes (;0. ^loreovcr, wlicre, as frequently Imppens, the restriction is that the directors shall consent to tlie transfer, their consent is regarded so nmch as a mere matter of form, that the necessity for it does not priS'-tically iiti'ei't the marketable value of the sliares. Xor cun davctors w/th.hold their consent to a transfer without got)d reason; lor till' power of assenting or dissenting to a transfer is reposed in them as trustees, and they must exercise that power iicooi'dingly, and not capriciously (7). At the same time, if tlieir (/,) 32 ."c 33 Vi,t. <;. l!), § :]:<. (7) In E.r partr 1\ nmij, 8 C'li. 44f), (/; Chjinoin-th's (Yi.sr, 1.") (/li. 1). 1:3. it was liuld tlmt tlirv iiecil ,L,nvL' no (m) This is aihnittcd in IVcstnn's n-asons for tlieir rrfusiil ; Imt that (■'IS'', 4 Ch, 20. See furtlicr uiuUt whether they ^'ivu reasons or not, tlie head C'oiitributories hi book iv. the Court will interfere if it i.s (n) See the last five notes, and proved that tlu y are not acting' I'n/ra. honestly in the disrliarfje of tluir (n) Tlii.s f(dIo\vs from Jf'edon's duty. See ih. and I'milr. v. Miildlc- C'lse, uhi supra. See who, ChapihU's ton, 2t) lleav. G4(i ; HnliinaiMi v. M^CCii. !)02; ','(•«« r<'A' ra.ir, 5 Ch. Chartered Hank, 1 Eij. :32 ; I'inhdt !Ji)9, and the next note. v. irriijlit, 2 Ha. 120. See also Ffture {})) Moffatt V. Faniuhav, 7 Ch. D. Elctric Acctumdator Co., 40 Ch. U. Ml ; Pender v. Lushiiujtoii, (5 Ch. L). 141. "''; Stranton Iron Co., 10 Ei[. .')")!). L.c, n n 466 TRANSFEU OF SHAKES. Informal con- sent. Piiyinent of calls. 1 Bk. III. Cliai). 4. consent to ii tmnsfcris ncccssiuy, iind in giving (r/r/) or rofusini^ their consent to a transfer, tluiy act hDiid Jldc, witli a view to the protection ( T the interests of the company, tlio exurcisi,' of their discretion wJI not be interfered with {r) ; and, in siuh a case, it is competent for them, if the company is in ciiibai'- rassed circumstances, to resolve not to aUow any traiislers at all («). A director may consent to a transfer of liis own shares (0. As to consenting to transfers to executors, \c., see below. X consent to a transfer given and acted upou is not invalid on the ground that it has been given informally (//) ; but a consent fraudulently obtained can be treated by tlie company as havalid((0- In most companies payment of calls is a condition procedtnt to tlie exercise of a right of transferring shares (h). A call nuist be actually made before its non-payment can justify a refusal to permit a transfer (c). If calls are due on some only of the shares held by a shareholder he caiuiot be prevciitiJ from transferring other sharers on which no arrears are dik. unless the statutory or other regulations of the company ckailv go to that extent ((i), as is the case with respect to cnnipauius governed by the Companies' clauses consolidation act, 181,3, and companies governed by Table A, to the Companies ait, 1862. Such, however, is not the case in companies goviTiitd by the Stannaries act, 1860 (c). The right, however, to pre- vent a transfer of shares on which calls are due nniy be waived, ((/'/) Fidirc Eh'ctiic A'-camulator {u) Jliirfinti: v. Sliitrlrii^rj'',^) W. I. Co., 40 Ch. 1). 141. C. 207 ; Tmjlor v. //(.■;//(-■.<, -2 .ink (r) Tajl V. irarri.-iiri,, 10 Ha. 48'.) ; Lai. 24. Hl-u /(/(/., pp. '>'>, .Mi. 11, y. LivcriJMil (iiul Mdiichist' )• Jt'idl. («) Sue I'uijnc's (((■•v, '.) K'|. 2-.'); Co., 21 L. J. Q. J5. 284; ami aee Ex parte Kintim J) V\i.'.)'>, and othir- InriiiiiiijlKun, V. Sheridan, oo Deav. of that clas.s. G()0. But compare Struntij,), Irua Co., 16 Eip Go!), aide, note (p). (.s) X(Im)i Mitclidi V. Citij iif (ll'is- (jow Bitnk Liquiilatorit, 4 Ajip. C'a. ()24 ; ami sea Mitvhell'a Mid liiitlur- ford's ca^cs, ib. 548 ; hiviihcrd's ctin':, 2 Ecp 004, ami 2 Cli. 1(5. (() Bush's case, 6 Ch. 240, and L. E. (J H. L. 37 ; and see Gilbert's case, 5 Ch. 05!). (A) Sec (Oili^, ]). 42:?. (r) J,'. V. l,ni.-< i'f C'lnd Hot'! >'.. 2 N. U. .•i!)7, ami 32 L. J. (}. B. ijju. Compare (lillicrl's ci(^v, .^j Cli. 5')!). ('/) 8 & !) Vict. c. 10, § Ki. /f ''■■ hcr.ilii V. .^fat'chester Hail. Co,, L K. 2Q. 13. 51) ami 471. See alnce of evidence to the contrary (A). Shares in companies governed by the Companies' clauses I" comiianics consolidation act, are transferable by deed, which must be S .S: ii Vkt. delivered to the secretary properly executed by the transfer(jr *"'' ^' and the transferee, and be properly stamped (i). A form of transfer is given by the act (»;). The Companies act, 18G2, declares that shares in companies In comianios formed and registered under that act shall bo capable of being r^.^ „f ^yij^. transfci'red in manner provided by the regulations of tlie (■(inipany ( ^j 22) (//). Table A. contains a form of transfer, and rei|uires it to be executed both by the tr.iusferor and the transferee (see Xos. 8 and '.!). Whether executed nu';'.ns sealed and delivered is, liowever, leil in obscurity ("). Shares (/) lirpiid'' lAilhdah,'.) CIi. i,-)7, aiiil till' casi' in the lu'xt mite. ',';) Ibid., uiiil Ih-pin'.-i case, H .fur. N. S. (115. {h) Sec Lundon FoiuulerK' As.-taciii- tvtu V. auir, -20 Q. J], 1). r)7(i ; .S//v(// V, /('h.«7/, 1 E. & E, 8«S ; ami coiii- iwre inikinnon v. Llo;id, 7 C^). 15. -Il, iiifi".. l<\\ 4(\:), -170, ami 4!)1. (0 In /■.'./• iiiirti: ^((nii'iif, 17 Ei(. a ili^eil wus held not necessary, iiltl'oau'ii tlie pvactiee was to bave one, The uitieb's (inly rei|nire(l an iiKiuiiii-ut in writing. (,/■; See i.'nrlindis nm, i) Cli. ODl. (/.) HiamUiifj V. Boicviiuj, 31 Ch. D. 2S2. •17-) (/) Xtiiiniij V. Miiyijitii, ',]~ C'b. i). ;M(i, ami enniiiare W'lut v. //'(. .S. (ill. (ii) Tbo repealed arts 7 iS: S Vict, c. 110, § 54, and c. 113, § 23, Ixitb required transfers to be by deed. See as to seriii, &.C., transl'erablo to bearer, infra, p. 474. (o) Ex jiartu Sanjuil, 17 Ei[. 273, tends to show that a deed is not necessary. ■■ n n 2 4G8 TRANSFKU OF SIIAUES. TransmiHsion to executors. &c. Ilk. iir. Chap. 4. ill those companies cftnnot, however, be made transferaltle l\ Suet. 5. , . . . iiiiTu (Idivcry {p), except uiuler the provisions of tlie Ccmi- paiiios act, 18G7, which only applies to fully paid-up shares ii' limited companies (q). The Companies' clauses consolidation act, 1845, requires executors to he registered (see § 18). Executors or admini- strators of members of companies governed by the Conipnuies act, 18G2, and Table A. may, at their option, either register themselves as members (Table A., No. 13), or transfer the shares which have devolved upon them, without becoming members themselves (Nos. 14 to 16, and see § 24 of the act). The same observation applies to trustees of bankrupt mem- bers, and to persons marrying female members (sec Tabh^ A., Nos. 13 — 16). It is to be observed that the power given to directors of declining to register a transfer of shares does not entitle them to decline to register shares in the name of a pei'son claiming them by transmission (r) ; but if the person so claiming endeavours to combine his title by transmission with some other person's title by transfer, in order to deprive the company of its right of lien, the directors may refuse to register the shares in his name (.s). The transfer of shares in other companies is not regulated by any general act of Parliament now in force (/). Shares in cost-book mining companies, although usually transferred by some written document, api)car to be transferable by i)arol only (h). Shares in what are called scrip companies are appa- rently transferable by the delivery of the scrip certificate (x). Companies formed under the repealed acts of 1850 — 8, may cause their shares to be transferred in manner in use before November, 1862, or in such other manner as such companies may direct (y). Til other com- luuiics. (2)) See Gencrnl Co, for the Promo- tion nj Land Credit, 5 Cli. 303 ; lieuss v. Bos, L. J?. 5 H. L. 176. (q) See 30 & 31 Vict. c. 131, § 27 d scq, (r) Bentham Mills Spinning Co., 11 Ch. D. 900. {s) Ex ;parte Harrison, 28 Ch. D. 3C3. (<) As to agveemeuts for the transfer of shares in Ijaiiking com- panies, see 30 Vict. c. 2'.), noticeil infra, p. 489. ((() IFalker v. Bartldt, 18 C, li 845. {x) Barclay s case, 20 Beav. 177 ; Grisexoood's case, 4 De G. & J. 541 ; De Pass's case, ib. (y) 25 & 20 Vict. c. 89, § 178. STAMP ON THANSFEUS. 469 The forms of transfer given by the various nets nro s'.ort, ^•^- ^^^- Chap. 4. Sect. 5. and arc friinicd with a view to convenient registration ; and . , , , . - Forms of ulthougli shares may be transferred by instruments in other transfer, forms, still, if they are complicated, and difler substantially from those prescribed, the company need not register them (,'■). Shares standing in the names of trustees or lunatics may bo Shares of transferred in proper cases under an order of the Chancery i,',natics.*"' Division, or an order in lunacy as the case may be (a). Shares are not held to be goods, wares, or merchandise Stamp, within the clause in the Stamp act, exempting contracts for the srJe of goods from stamp duty (/>) ; and written agreemonts for their sale must therefore be stamped (c). Shares, mure- over, are property within the meaning of the Stamp acts ; and instruments of transfer must therefore have the true considera- tion for the transfer expressed upon them, and be stamped accordingly ((?)• Several shareholders, however, may join in one transfer, and if the stamp covers the total consideration money it is sufficient (r). "Where shares are themselves the ( onsideration for a purchase, the stamp is regulated by tlieir market value at the time of st\le (/). A transferee of a share does not become a shareliolder, nor Wlicn hansfor does a transferor of a share cease to bo a shareholder, until tliose forms and ceremonies which by the constitution of each company are necessary to be observed, have bcfii either duly complied with or waived by comi)etent authority. The deci- sions on this subject having been already examined need not be again adverted to (r/). It is the duty of the transferee to is ■iiiiploto. (;) Cnpelnnd v. North-Eastern Ihiil. Co., G E. & B. 277 ; R v. (Icnerd Cemetery (' >., ib. 415. («) See lie An;i>'o, L De G. & Sm. 278 ; Re Ives, 9 Jur. N. H. Gil ; ante, \\ 467, nnti' (hi). (h) Kniijht V. Barber, If M. iJc W. 06. (c) It), See also 51 Vi<-t. c. 8, \\^ l(j iiud 17, iiiijiosin^ a duty of lUl. uii contract noter. for the sale of shiircs of the value of £100 or up- wards. (d) See 33 & 34 Vict. c. 07, uikI.t the head Conveyance, and as to foruii,'u shares, &c., 51 Vict. c. 8, §§ 12 and 13, and mortgages of sliarcs, ib. § 14. (e) Wills V. r.riihi,, 4 Ex. 193. (/) See 33 iJc 34 Vict. c. 97, tit. Conveyance ; and 51 Vict. c. 8, §§ 12 & 13 ; and Ulverstone Mail. Co. V. The Commissioners of Inland Revenue, 2 H. & G. 855. (r/) Ante, bk. i., c. 2, § 2, and see infra, bk. iv., c. 1, § 10, Contribii- if '170 'n!AN'si''i:K oi' siiAi:i;s. ('iiiniiiinirM act, l.k. IH. (Jliap. 1. (il,t;im rii'Opfiiition of hnnsi'lf us slmrclioldci' (//). I'lic (mn^. loror must iiHtHn'titiii hy iii([iury wliutlu!!* ins ti.iislci' Ims ]iwi\ uccc'IiUmI l)y tlie compiuiy or not; it is not the dutv n\' tlj fouipiiny to give liini tliis inlbrmation if In; ilixs nut ask for it (/). 'i'lio Companii's act, 1807, § 20, obligos companies vv"h- ti'VLcl iindor llio (Companies act, IKO'J, to register a innislVr nn llic application nf llici transferor in the same maimer Mini siil). ject to tho same conditions as on the application of thi' transferee. A transferee lias a rij^lit to be registered subject alwnys to the conditions of tho Com])aiiy's act, charter, or re<,'ul;iti()iis; and this ri;^ht cau ho enforced hy action of inii)uhmHH(l;)\ or in companies ffovcrncd hy llii; Companies act, iHiVl, hy an application under 5; 35 to rectify tlie register (/). lint tlii' company is entitled to a reasonable time to ascertain (li;it all is right bi'fore it registers a transle}' (m) ; ""d in practice notice is usually sent to the transferor that a Iransfer of liis shares has been lodged fur n-gistratiou {ii), Tho transferee of a share in a company acquires, as a rule, no greater rights than the transferor (o) ; and this doctrine lias been carried so far that it has been held that a tniiisfcrcc is precluded from objecting to conduct which has been saiiciimuil or actpiiesced in by his transferor {p) ; but this may well In doubted {q). The extent to which a traiisl'er(;e of shiires tak(^ upon himself the liabilities of the transferor, is exauiiiied in other parts of the treatise (/■) ; it may, however, he obsencl generally, that the transferee, as between himself and Iii^ transferor, takes tho place of the latter, not only as regards H'; liti of the liMi.sl'crce. tories. See also, Nannmj v. MoT(jun, {n) II)., pj), 34 it srij. ;J7 Cli. 1). ;M(). (o) See i'urtliur on tliis ]Hjiiil, (/() See Skinner v. CItij of Lomhn infnt, pji. -J75. Marim Corporation, 14 q. li. D. 882 ; Ward and Henry's case, 2 Cli. 431, 438. (i) See GuKtard's case, 8 Eq. 438. (/i) See infra, c. 9, § 4. (/) See ante, l)k. i., c. 2, § 3. (]i) Ffooks V. Soutli-lFesla-n iiaiV. Co., I Sill. & C}. 168. See, alsn, IWk V. Gurncy, 13 Eq. 79, ami L. li. ()][. L. 377. ('/) See 2'C'' Ery, L.J., in A.ihlur:i V. //'<(/,s- 30 (Jli. ]). 37!) i\: 3SI). (m) See j)c;' Lord Blaekburii, in (r) See as to ereditors, «/(?(;, mk. iSoci'jte Generale dc Paris v. JFalkcr, 11 App. Ca. 41. c. 7, §3 ; as to calls, an •itt\ bk. iii., § xlpost, Ilk. iv., c. 1,?§10^ 'ri;ANsri;ns in iii.ank. 471 wimt is past, but also lis rcf^'iirds wliiit is to c()mo(.t). With i'''v. HI. t'liMi'- '♦• ic-iicct, liowi'Vor, to tli(( titlc3 ol' a trniisrort'C, it will 1)0 seen prc'Si'iitly tliiit 11 hand Me ])urcliiis('r of shares for viiliu! witlioiit notice dl' liny invalidity in tlic title df his ti'iiusferor, ncfiuires n title which cannot he inipeaehed hy persniis (diiiininf^ a ])riov t(|iiital)le interest (0 ; moreover, if tlio eompany lias iietiially ri'fistci'ed such a purchaser, in it^iKiniiice of niiitei'ial facts, the (■(iiiipanv cannot lawfully afterwards remove his name from the rc,i,'istor{'/). Where anv company is being wound nj) by the Court, or Transfois when suhject to the supervision ol tiie Court, all transfers oi sliarcs wouiid \\\>. in it subsequent to the pi'escntatioii of the petition, and jjrior to llie wiiidiiif^-up order, are invalid unless otherwise ordered I'V llic Court (.f). Transfers after the ■winding-up order are :!ot expressly prohibited, but such a transfer does not dis- clmrcie the transferor from liability to be put on the list of ooiitrihutorics as a pi'esent member (//). After a restdution to \\'\w\ up voluntarily transfers of shares, unless to, or with the sanction of, the liquidators, are also invalid (:). The effect of those provisions upon the question whether a buyer or seller iiuj,'lit to be put on the list of contributories will be examined lieroafter {a). lliivinf,' made the above (d)S('rvations on ordinary transfers, it is iiocossary to consider the important and difliciilt ques- tions which arise when transfers are executed in blank, and when transfers are forged. The title acquired to sliares by estoppel will be examined in the cours(^ of this inquiry. 2. Of tmnnfers hi hldttk. Whatever may be the legal method of transferring shares, Trnnsfcrs in and whether a formal deed is or is not recjuisite, it is a common practice for a seller of sliares to sign a deed or iii- stramont uf transfer with the name of the transferee in l)laiik. (.<) Sue Minj]icw\'s case, 5 De. G. il.&(;. s;57. (0 Sff iIr' iiL'xt lieading. ('() Wiml V. l.^ 84. (.-.) lb., § 131. (a) See infra, bk. iv., c. 1, §§ G I'c 10. ^it 472 TiUNsri;u or sharks. Itk. III. (Imp. 1. TIio bnyor tlion insorts his own iiaino, or witliout doiiu' so ro. sells, 1111(1 Imiuls tlKj hliiiik tniiisftT to the new iiiircliascr, wlio ngniii citlicr inserts his own nnmo as the transferee, or resells nnd delivers the transfer, still in blitiik, to the pinclmstr I'nmi him, and so on. 'i'he elVcet of executinp; transfers in bluMk, nnd handiii},' them from one person to another, is verj' dillercnt with respeet to different elasses of shares. In the first })lace there are shares (c//., shares in snip nn,] cost-l)0(dc mining companies) whieh are traiisreiable witlidiit the intervention of any forimil doenment ; and a letter siiiiiiil Lv a shareholder, and trnnsferring his shares to , anioimts, if delivered to a i)urehasei', to a transfer to liiiii, and autlKiris-, him to fill up the blank with any name he likes (//). niank ilco.lsof ]',ut let US suppos(( a deed to be re(|uired. A deed executed transfer. by A., and purporting to transfer jiropcrty to , i.e., tn nobody, is altogether inoperative as a deed; and conseciueiitly, if a shareholder in a company, the shares in which are trims- ferable by deed only, executes a transfer of his slinrcs in blank, he still remains legal owner of the shares, mid the holder of tli(> deed ac(iuires no other title to the shares llinii a right to have them properly transferred, or to have the tnuis- feror deelared ii truste(! of them (c). But although a Muiik deed is invalid as a deed, it by no means fidlows tliiit iill transfers in blank arc worthless. In the fust place, circumstances may be proved v Lii h justify the inference that the instrument has been re-exeiutnl since the blanks were filled up (. 345 ; Ihnnhidl v. Metropolitan Bank, 2 Q. B. J). 194. (c) Society Geiiemle dc Puri^ v. H'((//.rr, 11 Ap].. Ca. 20; 14 Q. 15. D. 424 ; M'aniity v. Monjmi, 37 Ch. D. 34G ; Hihblewhitc v. McMorine, G M. & W. 200 ; Humhlc v. Langston, 7 M. & W. 517 ; Saula v. lUane, 14 Q. B. 205, and Ea. Ca. 70. .'^.o, too, Comoh hhvir. A.-^isor. v. XeintH, 3 Fos. & Fin. 130, and Suv.n's lU*, 7 C. B. N. S. 400, and Simn v. North I'.ritUh Australian Co., 1 U.k X. Culi, noticed infra, p. 48G. ((/) See IhuhoH V. licvett,^ r.inj:.3()H. (f) Societe Gcnh-ak de Pnm v. Walker, uhi siq^ra. Tn.WSFr.RS IN III.AN'K. m Sci't. 5. (if transfer ; and as thoro is uo law rcMiuiriiif; a contract for I'k. HI. Chap, J till' sail! of sliaros to be liy dcod or even in writ in;,', there is - iiutliiii^' l<> prevent u purdiastir of shares iVoni bcinj^ held to Ills bar;,;aiii, nor IVoni beiii^' ordered to iiceept tlie sliares ho hits ajjruod to buy, and with them nil the liabilities ineidiMit tluTcto. ('ouse(inently, where then,' is a biiidin;^ ni^'reenient t',11' tlic sale and transfer of shares, it is conipanitively Innna- tei'iid as between the buyei' and the seller whether a transfer in blank has been exeeuted or not. 'i'iie i)ur(diaser can be Cdiiiiiolled at the instance of the seller to take his place as fiMin the time of the nudiin*; of the contract; in other words, ill be died to d"( )f 111' purchaser will be conipelleil to accept a prop;T tnuisler ot the shares, to procure himself to bo re},'istered as a shareholdei" ill respect of them, and to indemnify the seller from n\\ liabili- ties accruing in respect of the same shares since the time when tliey wore agreed to be sold {/). So the purchaser can compel the seller to execute a proper transfer and to account for all ilivideiuls received by him suico he ceased to be the ecpiitable owner of the shares. Similar observations apply to transfers in blank by way of pledge. ^\■llere, however, there is no valid contract, a transfer in bhmk of sliares not passing by delivery is as invalid in equity as at law, unless the transferor has st) acted as to estop himself from disputing its validity. This is well illustrated by the case of Tdi/lcr v. 6' (vy(^ Taylor r. Orcut Indian Pnunsula Uailiniii Company {7 ; L(inih)i> miil ('nmitii J'liiiik v. l.oiiiloH inid JUrr)- I'lii.i: JUuil; :!!) (>. P.. I). 2:52. and 21 il.. .5;jr) ; Ciili'idul I'lntk y. If/jm-ofUi, '.W Ch. 1). ;)(i. (/) ('oiniiari' tlir rasr.-< in tlic last iiiilc wilii (!oii(hv;ii\. Ixohaii;:, 1 A]i]i. C'ii. 470, and L. K. in t'x. ;377, ml Jiinnhull \. Mitr'ipolitan Ikid; : t,i. V: 1). V.n ; Crniuh v. Vwlit Foiri. V: :Mi. (/,) See irilliam.iv.('vl(iniiilBii4; iihi .'.iijirii. (1) I'ltiiihuU V. MitriKoliUni I'lHih, 2 (I ].. ]). I!i4, a ease of a limited cninpany. TlUNSFEns IN ULANK. -175 cftkt with ivspcct to shares; and in the present stntc of the '''<• llI-*''''Mi- 4. , , Sect. fi. iiutliiiritieK it is doubirul whether proof of a siniihir usage as ti) them wonhl make them negotiable (;/(). T'nder existing acts dt'l'iu'lianient, shares transferable to bearer can hardly exist ; kn- tlicv are not consistent with the statutory enactments relat- iiii; to registers. But regulations might be made to the efl'ect that share certificates should be transferable to bearer; and that the bearer sluiuld be entitled to be registered; but that the persons on the register should alone be members of the conipiiny. Sueli certificates might then become negotiable by usai:e. A person, who signs a transfer in blank and gives it with the EfTcct of trans- "^ T . ^.. fui's in bliuik as ecvtitieate ol shitres to another person, does m fact enabh} that rc^'anls thiid IK'i'soii to insert his own name in the transfer as transf(!U;e ^''"''■"'"■'^" iiiul to tiike the transfer so filled up with the certificate to the cuinpaiiy and procure himself to be registered as owner. Xay more, the person, to whom the transfer is handed, may, without fining it up witli his own name, pass it and the certificate on to i; tliird person, and he may do the like, and ultimately some Iidhlcr of the transfer may fill in liis own name and procure himself to be registered. Siudi transactions are of daih' occur- leiice, and give rise to no dilliculty where each step in the trans- !ii tiou is honest and in accordance with the real intention of tlr: parties to it {ii}. Ihii wliere this is not the case, questions of great (lifliculiy arise. Tlu' principles to be borne if mind i'lr the piii'iiose of solving them may be gathered u..iu the following consideratid lis and authorities. Kxeept where n shareholder is estopped frou' denying the Titli^ acquired title ()f some particular transferee, tlie general rule of English mxlcr l.iaiili I;nv is tliat a pui'chaser of a share acquires no better title tlian '''""'**'-"''•'*' *"-'• hi.', veiidiir liimself has (o) ; shares being in this respect like 'iher goods and cliattels (y*). iVs regards ordinary goods there lie iliree exceptions, viz., 1, wheie they are bonght in mai'ket evert, '2, wlu.'re they are bought from agents entrusted witii Im) SiH' the casi'S In the la.~t Iwd ri^i^■ll w Iiat llic transferee did, li'iles. {u) ll'iUiiiiiiHW V'lhnii-il I'.iiiil;?,^ («) See tlm eases cited lielow and (.'li. ."JSS, and oilier eases eited Ixdow. i: <''■ V. /,Wo,, nd'e'ved to in ilii ( 'li. (/O As to wliicdi ,). As to notice. '^- ^^ person who knowingly accei)ts the share certificates of a transferor from the holder of a blank transfer, has notice that (7) Sec .*3S Ch. 1). 408. ()•) 111. 40."). QuiiTV, if there i.s a market overt for shares. (.s) See the cases infra, and Tay- lor V. Iltakdod; 112 Ch. J). 5()G, a case of stock ; London and Countji lliinldiiij Co. V. Lundi'ii and li'irir J'lat,- r.anh, :20 Q. B. D. S.^^, ami -IX il). .")3.'). (0 Hoota V. Willinmson, 3S Ch. 1). 485 ; Snd<'t(i (Iciieralr d,- J''. B. 1). 424 ; RooU v. IVilliamson, h Cli. D. 4s5. (a) Ibid. ('0 Lomloii and County Jianhimj Co. V. //i.ir I'lalc Co., :il q. U. 1). :>X), m iO ib. 232, where suuie of th(! ■•jocuritiefi wore ncgotialile ami were nut till! SlUllr as lllli-U Slcli'll. 1> 424. yoo i,ij'ra, p. 471). ((,') Sue 11 App. (\i. pp. :iOk 41. Ill j'V't' llrcdjoni lianhliKj Co. v. IliiijijH d- Co., 12 App. Ca. 2'J, soiur menibir.s uf the llnuse of Ijunls seemed indisposed to accept this view of the acts. (c) Sec 14 Q. B. D. 424. 478 ■I'UANSl'KI! OF SHARKS. Bk. lll.ci>ap. 1. 8 i^- 1) Vict. c. 10 (see § 20). But as already seen, coniimni. s cannot lake advantage of this doctrine to acquire priority in their own fav(jur over equitahle riglits against the conipaiiv of whicli tlieir directors or agents liave actual knowledge (,/'). Lot us now attempt to apply the principles above nientioncil to sales and pledges, and to other cases whore sharelioldcrs have left tlieir transfers and certificates witli persons whj have improperly used them. Sales. 1. In the first place the shareholder signing tlie transfer iu blank may give it with the certificate to a buyer. In siicli case the 1/uyer is impliedly authorised by the seller to dealwitii the documents as his own. Jle can consequently insert liis own name and procure himself to be registered as owner ; < r he can pass the documents on to some one else to deal witli in a similar way. In the case supposed, the origii'.al sliiin- holder has transferred his right to the documents, and although he remains the legal owner of the shares, lie is a trustee df them for the bi ^) er or for the persons claiming under liiia a.< the case .nay be (;/). rieilgcs. 2. Sec' ndly, the shareholder signing the transfer in Ijlank may deposit it and his share certificates as a security ti'j money. The real autiiority given to the pledgee may siiuply be to hold the documents as a security. But if he fills in hi, own name as transferee and procures lumself to be rcgistiinl as owner, his title as owner is apparently ])erfect; iunl although so long as he holds the shares they are subject t^i redeniption, yet if he then transfers them to a hoin} ;/'/' purchaser for value without notice of his real title, liis r.Knt- giigor will, it is conceived, be without redress against smii a jiurchascr (//). If, however, the mortgagee disposes of the transfer and certificate whilst tlu'y are in the state in which ho received them from his mortgagor, the documents thcniselus show that the mortgagee is disposing of what is not his dwii, and the purchaser from Jiim acquires no better title than tho mortgagee himself had. (/') llrailford Biailiiig di. v. Ih-iijija d: Co., 12 Ap)). C'a. 2!), lOi^t', p. 4.')f). (;/) The cases eitcil lielnw are reallv aathdrities for this state- ment, although none arc ilir..!' in ]ioint. (/t) ISee the judgiueuts iutlieckd next cited. TJiAXSI'EKS IN BLANK. 479 Tliis WIS decided \n Fnniri' v. Cbnl.- (i). Tii tliat rase Fi'nnre ''■l<. IIJ- ''\n<' '■ Sort. ,>. Wd^ the rcgisU'i'rd owiiei' oT some shares iii a coiii[)any reyis- Uivil uiuier the Companies aet, IHb'I. lie signed a traiiskr ot tlkia v.itli the name <>{ the transferee ar.d the date, and the con- siilei'iitiou all hi blank ; and he gave this document and his sliiiro certificates to Clark as a security for ,1'lyO. Clark depDsitod the same documents unaltered with Quihampton as a security for £250. Clark died insolvent. Quihamptou then iiiJSL'iled his own name in the transfer, hlleil in the date, and Sfut it to the company for registration. The comi)any sent Fiv.iKc the usual notice that the transfer had been received, and he stopped the registration of the transfer (A). France dt'iiiiuided the shares from Quihampton on payment of the I'lyO ami hiterest. Quihampton required i;250 and interest, and insisted that lie was a bond fide purchaser for vahu' of the shares witiiout notice of France's title. It was, however, decided that although this might have been true if Clark Iiad procuied himself to be registered as owner before pledging the s-.hares, yet that tlie blank transfer ami certificate showed tliat France was the owner and not Clark, and consequently (^luihainptoii's title was no better than Clark's, and that on liayiiiif lil5() and interest, France was entitled to the shares. hiiid Sclhorue in i-iviu';' ihi^ iudinnent of the Court of Appeal f^'"*"'" .-'^■''" ''>' ° ' . . . tlio Ijlauks. said, " The defence of purchaser for value without notice, by iiiiyoiie who takes from another without in(j[uiry an instrument signed iu blank by a third party, and then himself fills up the Hanks, appears to us altogether untenable." This decision has been followed by others which afford further illustration of the important principle above enunciated. In 'Hie Saricir. (ir K-'nih; (If I'drix v. D'alkcr (/), A. was the re- I'l^mk ti-ansi'or 1 1-1 A 1 • -111 without ceili- gistereu owner ot 100 sliares m a company registered under the licatu. Companies aet, 18G2. 'I'lii; shares were transferable by deed. A. executed a tran>l'cr of them in blank and deposited the tiausier and his share certilicatcs with 15. as u security for a '■) -l''! Cli. I). 257, and -l-I il>. S:!0. seems tn have lueii elleetoil in fact, I'.: jiiirir Sdiyiit, 17 lv|. 273, if .see riC Cli. 1). 2<11. h\i\«'hA to ihiri cannot lie relied (/) 11 Apj). ( 'a. 20, alhnniiii,' S. (,'., "l"iii. 14 (^». li. 1). 424. See, also, Ilouts v. (/.) The royistnition, however, U'illiamson^ 38 Ch. D. 485. ^^mm 480 TllAXSl'KU OV SlIAUES. ^V:vlkcr. l!k. III. Chap. 4. debt. A. then executed anotlier transfer in blank as regards '; " — the name of t lie transferee and the nnmbers of the shares, imd Sopii'td Guiniralc , -^ i •. -n i ■ i i • • ^i lie r.iii.s c. deposited it witli Ins liankers, i^iviii*,' tliem a momorandum us to the shares and an excuse for not handing over his sliiire certificates ; afterwards the name of an officer of the bank ami the numbers of the shares were inserted in this last transfer, and it was sent to the company for registration. iJcfn-c, Low- ever, it was registered B.'s executors gave the couipanj' notice (>f iheir title, and thereupon the company declined to register the bank's nominee. The bankers then sued the coiapanv and B.'s executors, and chained a declaration that they win- entitled to the shares and for delivery of the certificates to them. But it was decided that the bankers had not acquired either the legal title to the shares nor the equitable title to tliein. Not the legal title, because the transfer was void as a deed ; not the equitable title, because that title was subsequiiit in point of time to B.'s equitable title which there was noiliiiir; to displace. The House of Lords held that as the bankers never had the share certificates they would not have Ijeen in a position to compel the company to register them as owners of the ohareS; even if the transfer itself had been by deed duly executed, for the company was entitled to reasonable time for inquiry and to an indemnity even before they received notice from B.'s executors not to register the transfer to the bank (m). 8. A registered owiu>r of shares may send a blank transfer with his share certificates to a broker for sale or mortgage, and the broker iinn exceed his authority, or may sell or mortgage pursuant to it, and misapply the money he receives. Accord- ing to France v. Clark the i)erson dealing with the broker and taking the blank transfer from him obtains no better title to till' shares ijian the broker is authorised to confer. If lie has no authority to sell without furtlu'r orders In- can confer iie good title ; if he has authoritN to sell lie can S(dl but n t pledgt ; if he has authority to pKdge on behalf of nis prin- cipal ho cannot pledge for his vwn debt. Other iinpro|ier (loalin},'<5 with ■^liiire traubfcr.s, (m) See, pej- Lonl Selbomo, 11 App. Ca. 29, and jici Loiil V,IacLbarii. ib. p. 41. TKANSl'KUS IN ULANK. 481 rcgiii'ils res, iiud idum us is sluu'e iink iiiul transfer, re, liinv- ly notice register company hey ^Yere icates to acquired le title to S'oid as a ibsequi'nl s noiliinj,' 3 bankers been in a owners of deed duly aiile time received ;er to the k transfer l^age, and I mortgage Accord- mker and |cr title to If lie lias router lie but let liiis pnu- ll'.lackbuni, In The Earl 'of ShcfJJrhl v. The Lnmhm Joint .S'/oc/j I''k. "I- Ci.ai,.4. ,.'.,, , . Sect. 5. Bank M, the plaintin gave KnHton. authority to borrow - — — „ , . ^, •. /. • , 1 IT Earl (if ShoHioM ,i"20,000 for hnn on tJic security or certain stocks and shares, v. Lnndon Joint and gave him {Easton) transfers executed in blank and share '''°'^''""'^' certificates. Easton raised .£26,000 on them by depositing tlieni with Mozlcij, a money dealer. Mozlvij deposited them with other securities belonging to other customers ■with various banks as security for loans to himself to a hirge amount. The transfers were filled in with the names of officials of the banks, luid were registered in their names. MuzUy failed, and the hanks claimed to retain the shares, i^c, as security for what was due to them respectively from Modcij. The plaintiff sought to redeem his shares on payment o^ the £26,000 which Modeii had advanced upon them, with interest on that sum. The Court of vVppeal decided in favour oi the banks on the ground that they were purchasers for value without notice ; hut the fiuiis'^ of Lords reversed this decision (.)n the ground that the banks had notice that Mozh'ij was pledging shares, &c., which were not his own ; and that there was no proof of any authority, by custom or otherwise, enabling Mozlcy to pledge liis customers' shares for more than ho himself advanced upon them. It is said that if a shareholder in an American company Shares in foreign signs transfers m blank, and gives them with his share certifi- cates to another, the traiisferci imiJiodly authorises that other to deal with them as he chooses ("). But whether this is so or not by the law of America, the title of a person who acquires such documents in this country is governed by the law of this country, and he can acquire no better title than his transferor himself has, unless indeed the owner of the shares has so con- ilucted himself as to be estopped by the law of this countiy h'oiii diining the title of the transferee. The leading case on this head is Williams v. Colonial Bank (p). Williams »'.. Colonial Ijimk, (/I) 1:] Ajip. (.'.1 3.13, levursing f'i-'o(( V. l,o)iilon Jt. .S7. Jliiii!:, M '-'h. 1). !)."). Sonu' of ihf docu- !i■ p. 477. eeedings lor damages sustained by {") See tlie eases in the lU'Xt notes, the transfo". ;iikLI.s/(% V. Z;facA-('v//, 2 Eden, 2'.)!), (ir) llarton x. Lond. and N.-W. uuil 1 Ami). 003. Hildijard v. The Rail. Co., 38 C\\. 13. 144 ; Vanhore. i^'Mh Sat Co., 2 P. W. 70, cannot be v. North-Eadaii Rail. Co., 21) Cli. 1). iilieil upon ; !>ee the ease, last cited, 344. See, a.s to interpleader, Dalton ■Mi\ rnink of Ireland v. Eraniis '■'Imihi Tnwtew, .'} II. L. C. 389; "'■'■ V. Uniun Hank of Srutland, 1 Mcyueen, .^IG. (>-) See the cases in the ne.xt notes, md Hanutt, Honres (D Co. v. Honlh ImiIoii Trammuj Co., 18 Q. 15. 1). M.'i; .rohnHton v.Renton, !) Eip 181 ; ''"'"" V. Kostfrn Couhtirs Rail. C,., V. Midland Rail. Co., 12 C. 13. 4.')8, and 13 ih. 474. (.1-) Barton, v. Xorth Stafford.ihire Rail. Co., 38 t'h. D. 4.'58. (;/) I'), where the registered holders were executors. (:.) Mayor, dr., of tin !>ht}di: of Knijland \. 1,'overnor and (Jo. if Rank nf l-Uajland, 21 (,). B. D. 100. 1 I -1 r 1 i « i 18-1 Tli.VNSII'.U 01' .SHAIir.S. r,k. III. ciuip. 1. Agiiiii, 11 company is liable to an action I'ur (laniagvs iit tl Fiilso ccrtili- Sliiiw r. Pdit l'liilip(i('li(jlo-Aincn&(n Tel. Co., 5 Q. B. D. 188, where tfie plaiu- tilf had advanced money on the shares, but had been jiaid oil'. (/;) Uuhla and San Fmnciico Hail. Co., L. R. 3 Q. B. 584 ; Hart v. Fronlino, ttx'., Co., L. E. 5 Ex. 111. (Junipaie Shropshire Union Rail. Co. V. The Queen, L. E. 7 H. L. 490, reversing S. C, L. E. 8 Q, 15. 420, wlucli tiuiied ou the I'aet that the tertitieate was true, but only pur- ported to slidW tlie legal title. (-•) 13 g. E. D. 103, see vnh, p. (54. C(nn])are Maifir, tlr,, vj the Staple of Enijhind v. Cwu-ii'.'i' of Hank of Enylnnd, 21 Q. B. D. KiO, and Jiritish Mutual Bankin'j Cv. V. Charnwood Forest liait. Co., Irt (,'■ B. D. 714. (-/) r) Q. B 1). 188. The jiul- nieut of the Court ol" apjieal in tlii- ease is particularly instructive. liil!(.l'I> Ti; ANSI'TRS. 480 Piiinir sont tliis trnnsfcr to tlio company, who vo^istcrod it iil'tor Uk- uiiikiiit; till' nsiml enquiries, lliinic then Ininsf't'ri'ed tlir stoek - to Simiii. The company rofjistcred this tmnst'er, nnd issued a ccrtirn'atc to .S'//«/h, stating that he was tlie hohh'r oi' the stoek. S'liinn, will) was secretary to the National iJiiiik, held the stoek ns trustee for Bitrge, subject to any lieu the bank might liave on it tor advances to /?H/y/t'. Tlie baidc made advances to Biinir nil tlie stock, but these advances liad been repaid before the iictioii was l)rought. The company liaving discovered that ContrHti signature was a forger}-, refused to acknowledge Simm IIS ii stockholder, or to i)ay him any dividends. Under these rii'cumstnnces, Simiii and Diirnc brought an action against the roinpany for the recovery of the purchase-money of the stock, and the dividends thereon. It was contended on their behalf, *ii'st, that the XatiojKil Bank having advanced money to Burcje (111 the faith of the transfer to Simm, and of the ccrtiticate issued to him, Simm as trustee for the bank had as against the company acquired a title to the stock by estoppel, and that this title could not be defeated by any fluctuations of the account liotwecn the bank and Bnrrjr ,- ami secondly, that it was the duty of a c(nnpany to keep a correct register, and that the ilil'cuiliint company having ent(>red Si)iim on the regist(>r, could lint afterwards refuse to aclcnowledgo his right to the stock. These views prevailed in the Court of first instance, but the Cmu't of Appeal reversed this decision and gave judgment for the company, on the ground as regards Simm, that although he iis trustee for the National Bank would have had a right to re- cover damages against the company, if the bank had suflercd loss from having advanced money to Burfic on the faith of tlm certificate issued to Simm, yet that these advances had been repaid, and no loss had been incurred ; and as regards Bavijr, that the loss sustained by him had arisen from his having accepted as genuine a forged transfer, and not from any repre- ^■utation made to him by the company. In connection with this subject, it should be remembered that ii company cannot be estopped from denying that it has done Something which it had no power to do ; so that if a person !i;is bought shares or advanced his money on the faith of a ccitificatc, which the company had no power to issue, he can- Ill. Chap. i. Sect. 5. '' ^ >• '^^z -p. y >^ Photographic Sciences Corporation 23 WEST MAIN STR6ET WEBSTER, N.Y. M580 (716) 872-4503 y^s V ^.^ C> » 486 TUANSFEn OF SHAKES. ^^' ^sLf's''' *' "°* I'ecover tlaiuaj^es from the company for the loss he Ims sustained (e). CareleunesB when an estoppel. i-f "' Swan's case. Estoppel by carelessness. The most difficult cases which aiise in practice are thoso in which the shareholder, whose shares liave heen inipropeily transferred from his name into the name of someone else, Ims heen guilty of some carelessness which has facilitated tlic improper dealing with his shares. The mere fact that lie has signed transfers in blank, and entrusted them with his sIimio certifi 'p- to a broker or banker, does not without more estop the transferor from claiming his shares as against a purchaser • ic knew that the transfer was in blank (/). Again, carelessni . v leaving share certificates or transfers about, although \z facilitates fraud and even forgery, does not cause it, and does not of itseF estop the owner of the shares from recovering them (_r/). So, carelessness on the part of a corpora- tion as to the custody of its common seal, does not prevent the corporation from recovering shares transferred from its name by an unauthorised and fraudulent use of its seal (/t). The leading case on t! o hind of carelessness which will pi'event the person guilty of H from recovering shares wroni,'- fully transferred from \\lz name, is Swan's case. The facts there were somewhat like those in Taylcr v. Grcnt Indian Peninsula ItaUway Co. (noticed ante, p. 473). But in Sivani case the transfers had been actually registered, and the vendur sought to have the registration cancelled. The case came first before the Common Pl'ias (»'), and then before the P]xcliequer(/i), and lastly before the Exchequer Chamber {I). All the judges («•) See iinte, book ii. e. 2, § 2, fuul Uritish Mutual liankhxj Co. v. Clutrn- wood Forest Hail. Co., 18 Q. B. D. 714. (/) See the cases ante p. 476, e< set/. and Taijler v. Great Indian Peninsula Hail. Co., 4 De 0. & J. 559 ; Swan V. North British Australian Co., 2 IT. & ( '. 175, noticed infra. {(j) Johiston v. Rcnton, !) Eij. 181. (/i) Bank of Ireland v. Hrans's Charity Trustees, 5 H. L. C. 389 ; Mayor, t£v., of the Staple of Kngldinl v. Governor and Co. of Bank uf A'ly- land, 21 Q. B. D. 1(50. ()■) Ex parte Smtn, 7 C. B. X. S. 400. (k) Swan v. North British Amtm- lian Co., 7 IT. & N. C()3. (/) 2 IT. & C. 175. SALES 01' SHAKES. 487 )i(/ree(l that tho transfers were whoUv void, and conferred no l^^. III. cimp. 4. "h'^ * Sect. 6. title on the transferee, although lie was a hondfule purchaser; - and it was also held by the Exchequer Chamber that the vendor was not estopped, by his own negligence in signing the blank triinsfers, from asserting his title to the shares. On this point the judges in the courts below had been equally divided (»/). In order that carelessness may estop one person from denying his title as against another, it is necessary that the cnrelessness shall be in the transaction in which that other has been engaged, and shall be the proximate cause of his being misled, and must be the neglect of some duty owing to him or to the public, of whom lie is one. But the neglect of what is prudent, having regard to one's own interests or neglect of duty to ♦hinl persons through whom the person relying on the (■stoi)pel does not claim, is not sufficient for the pui'pose (h). Similar observations apply to acts done, not by carelessness, but under the influence of fraud or misrepresentation, or of misphiced confidence (o). SECTION VI. -OF SALES OF SHARES AND QUESTIONS ARISING THEREON. There is nothing illegal at common law in tho sale of shares or illegal sales, scrip (y»). At the same time, if a company or projected company is itself illegal, the sale of its shares or scrip is illegal also(<^). {ri') See some oliscrviitioiif! on this -aseinU E^. 319. (h) See Lord Blackburn's cele- Irated jud^'meiit in Svan v. North I'ritiah Aiiat ralanian Co., 2 H. i'^ V. 17.') ; Mdijoi; <(■(■., of Staple of Kmi- kiid V. Gonrnor and Co. of Hank of Knghml, 21 Q. B. I). KiO ; Can- v. I.nnl ami A'.-JF. Hail. Co., L. R. 10 t'. 1'. ;)07. See, on estoppel ;m'iic- iilly, Ciibalie on Hstoppcl, 18HS ; /''K'1.1 V. Hank of Kmilaml, '2 ]5iiig. "■It:!, where the cureless dniwinj; of a •:liei|iii' istdiipud the drawer IVoiu complaininj:,' of a forfjery, is com- nienteil on in the abovt; eases. (o) John.ttnn V. Jitnton, 9 Eq. 181, and see JhinaUson v. (lillot, 3 E([. 274. ( ji) See Harrhiy'.'! caiii, 2(5 Bcav. 177 ; A.iton\i ca.se, 4 De (J. & .J. 320, and 27 Beav, 474 ; liriimrooiVs fane, 4 Di' G. & J. 544 ; E.e parte Ijagtje, 13 r.eav. 102. (./) Jo.'icphs V. Pehrcr, 3 B. & C. (I3!t ; Iha-k v. Hack, 1 Camp. 547. Thf statute of 7 & 8 Vict. c. 110, jiriibiMted the .-iik' of shares in a T^r^ i & 488 Bk. III. Chap. 4. Qaraing and watering in shares. Conspiracy. Settling day. BALES OF SHARES. Tliere is nothing illegal in the sale of shares in companies which are heing wound up (r). A bond fide contract by a person to deliver shares wliidi he has not got, is legal («). But a contract for their puicliasi- and sale, where neither party intends to acceptor deliver them, and they only intend to pay " diflfercnces," according to tlio rise or fall of the market, is void as a gaining or wagering con- tract within 8 & 9 Vict. c. 109, § 18(0- But such contracts can seldom be proved ; for in the ordinary course of business there is a valid contract to buy and another to sell («) ; and it is now settled that a broker who pays differences for liis principal can recover them from him (r). A conspiracy to obtain a settling day by fraudulent means in order to defraud buyers of shares, or a conspiracy by fniiulu- lent means to raise or lower the price of shares with intent h> defraud buyers or sellers, is an indictable offence (x). By the rules of the London Stock Exchange, bargains iu the shnr^s of a new company are contingent on the appointment of company fjovcrncd liy it, tmtil aftfi- the company had obtained a certili- cate of complete registration, and even then by any snbscriber not registered as u shareholder, § 26 ; Ex jmrte Neilsnn, 3 De G. M. & G. f).'}6 ; Morris v, Cannan, 4 De Q. F. & J. {J81. But the statnte is now repealed ; and the prohibitions in question never extended to com- panies, the formation of which was commenced before the Ist Nov. 1844 (as to which see Baker v. Pliislitt, 5 C. B. 262 ; Asian's case, 27 Beav. 474, and 4 De G. & J. 320), nor to railwaj' or other companies requiring the authority of Parlia- ment : Young v. Smith, 15 M. & W. 121 ; llomjield v. Wilson, 16 ib. 185 ; Luwton v. Hickman, 9 Q. B. 563. (r) See Emhje v. Bowman, L. R. 3 Q. h. 689, and infra, p. 494. («) Hihhlewhik v. McMnrim; 5 M. «& W. 462 ; ]larr>i v. Vrusknj, 2 J.& H. 1 ; E.r part,: 'Pli ill lis, and /•;..■ parli- Muniharn, 2 Dc (I. F. >^ ,[. 634. (<) Grisewood v. Blanr, 11 (', 1',. 539 ; PiCes v. Fcrnie, 4 X. K. .W!), and the cases in the la.st note. Thr old Stock-jobbing act (Sir Joliii Barnanl's act), 7 Geo. 2, c. 8, was repealed by 23 &. 24 \'iet. c. -2^ It did not apply to siiare.s iu toiii- panies. See Hewitt v. Pritc, 4 JLiu. & Gr. 355 ; Williams v. Tryf., 1> Beav. 366. See, too, Ex. park Turner, 3 De G. & J. 46, and the cases there cited. (m) See Thackcr v. Hardfj, 4 Q. W D. 685, the leading case on tliis siili- ject, and injra, jip. 500 et sc/. ((•) Eosewurne v. Billinij, \'> ('. i'. N. S. 316; Thackcr y.hin-ihj, -HI. B. D. 685 ; Ex parte Bogeiv, 15 t'li. D. 207. See, also, Bead v. A mkrm, 13 g. B. 1). 779. (..) See /.'. v. Asjiiindl, 1 Q. U. 1». 730, and 2 ib. 48 ; U. v. He Uimnyr, 3 M. & S. 67 ; B. v. Kdnih. I Tp-. & Fin. 213. Sfc -M %% BAN* KING COMPANIES. 489 jompanies rrs whicli : pui'flinsu ivertheiii, ng to tlif jt'i'ing fdii- contracts \i business '«) ; and it es for Lis lent means ■ by fmiulu- Ji intent U> gains in tlu' ointnicnt ut' I)f(l. F. >' I. ne, 11 ('. 1'. X. K. M'.i. bt note. Th.' ;t (Sir JcillM 2, c. 8, Av,i- Vict. c. ^. |iaR'.< in coiii- ^Frice, 4 Man. V. Triji', ^ 46, and the 1,07/;/, 4 Q. !'. on this siih- I et sc'i. [ill;/, 1') ('• !'• I. i/• y/c Wrrciiil"-. |-/.n7.. 1 l'"-- ft settling (lay ; but the validity of contracts in relation to such ^^^- y^5"'5'' shares is not affected by reason of the appointment having been obtained by n fraud to which the conti'acting persons were no jiarties (/y). \]\ 30 Vict. c. 29, § 1, it is enacted that all contracts made Banking after the 1st of July, 1867, for the sale or transfer of any shares, i-tock, or interest in any Joint-stock Banking Company in Kngland or Ireland, constituted under or I'cgulated b}' any act of Parliament, royal chaiier, or letters patent, issuing shares or stock transferable by any written instrument, shall be void unless such contract sets forth in writing the distinguishing numbers of such shares, stock, or interest on the register, or if there is no register, the person in whose name such shares, stock, or interest shall at the time of making such contract stand in the books of the company. The object of this enact- ment is to prevent runs on banks which may be occasioned by ii fall in the price of their shares resulting from gambling transactions (s). It is the custom on the Stock Exchanges of London and Bristol to disregard the provisions of this act : hut such custom is illegal. Contracts in vioLition of the >tiitnte are, however, simply void, m illegal. Consequently, a stockbroker employed to sell shares in a joint stock bank, is liable in damages to his employer if the sale goes off owing to his having disregarded the jn'ovisions of the act (a). Again, a stockbroker employed to purchase such shares has no claim ii^'rtinst his principal who refuses to take them, although the hroker may have been himself obliged by the rules to pay for the shares (li). But it is otherwise if the principal knew of the lustom, and authorised the contract (<•) ; and a person who has, hv accepting a transfer in pui'suance of the contract, become iiwner of the shares, may be compelled to indemnify the vendor Dgainst all hability in respect of them ((/). (;/) /••.'• iHirte ll'im), 20 Ch. D. (•) See, as to iiumljerinj; .•iliare.'*, ■'I'l', p. 50 ; and see on this act in iiUition to the cases below, Mitdidl V I'ilij nf (ll.tscjoti; Bank, 4 App. Ca. '124. ;') Xdhoii V. Jumc$, 9 Q, B. D. 546. (/)) I'ernj v. IJarndt, 15 Q. B. D. 388, ami 14 ib. 467. (r) Seymour v. Bridije, 14 Q. B. D. 460. See, also, Read v. AndcrsoHy 1.3 ib. 779, and 10 ib. 100. {d) Loring v. Davis, 32 Ch. D. 625. Ill ' 490 ])k. III. Chat., 4. Sect. 6. ARTcomcntii for sole of ahai'CH. SAM'S <»!• SHARKS. Stamr, Diviilcnds on sales. Delivery of tlie shares. Neitlior scrip nor slmres arc goods or chatti-ls or interests in land within tlu; Statiito of Frauds ; and (subject to tli(> ([unlili. cation introduced by the act just noticed) a eontniet for tin. sah' of them is therefore valid, although not rt'dmod intd writing and signed by either buyer or seller, or by any n-'ent of either of them (e). At the same time, if a contract for flic sale of shares is reduced into writing, that writing is the propir evidence of the contract, and must therefore be produced properly stamped (/). Moreover, by the Customs and Inland JJeveime act, 1888 (51 Vict. c. 8), any person wlio otrects anv sale or purchase of any stock or marketable security as broker or agent, is bound under penalty to make and execute a con- tract note (§ 17), and such note must be properly stamped witli a duty of Gd. if the shares are of the value of 100/. or iiitwards (§ 16, and 33 Sc M Vict. c. 97, § 69 et srq). Under a contract for the sale of shares ■ hich is silent as to dividends, the price covers all future di. -lends, and the pin- chaser becomes entitled to all dividends declared after the ron- tract is made, though they may be declared in respect of a period antecedent to the contract, and before the time fixed by the contract for completion has airived (//). As regards delivery, it is to be obsei-ved that sliarcs and certificates are different things ; and an agreement to ilclircr shares is performed by the execution and delivery of a jnoper transfer. Actual delivery of the share certificates is not essential to the performance of such a contract (/;). The transferee can generally procure himself to be registered, or to be otherwise recognised by the company as a sbareliolder without them, although he cannot do so without trouble and delay (?). In practice the vendor's share certificates are usuidly handed to the purchaser with the transfer ; and if the vciidoi' does not send his certificates to the purchaser within a reason- able time, the purchaser may decline to accept the shares (^K (f) Ante, p. 4r).3. (/) Knvjht v.Barher, ](i M. & \V. 66, and ante, pp. 453 aiid4(;!) ; X] & M Vict. r. <)7, § 69 d srq. ; 51 Vict, c. 8. (i/) Black v. ILnncmliain, 4 Ex. D. 24. {])) Hunt V. riunn, 13 C. B. N. S. 22(1, and 3 Fos. .S: f'in. 223. (/) See HucU-tf Ghiemk ih l'iiii.lmres or not (n) ; it is sufficient if he procures them in time. Neither is it necessary that the shares should b<; actually VI sted in him, or that he should be the actual transferor ; it litiii!,' immaterial to the purchaser by whom the transfer to liini is made, provided only the transferor's title is good (o). It hiis been said that it is the vendor's duty to procure the Duty to procure registrati(m of the shares in the navie of the purchaser (j)). But this is going too far ; and it appears more correct to say iliiit in the absence of express agreement (q), the purchaser takes the risk of any objection being nmde by the company to lihuself as the transferee ; and also the risk of all other objec- tions not based on the right of the transferor to transfer his >lmres (/•). The vendor, however, must do whatever is neces- i- ' 1. 141. Thb foiistitution of the iiiipany doc? not jijipeixr, and ■hares and ciTtiticatos were a)i- li:iRntly trwiteil as tlie same ') /V U'md y. Aillvr, 12 Apji. Ca. ;ii. (ill) Ant,:,]). 48!). Ill) Ante, p. 488, note (s). (") See tlie ju(l',nucnt of Lord LLiiklnim iu Muxtcd v. Paiitr, No. :;. L. U. (i Ex. U-2. ill) U'Uhlnsnn v. Llmiil, 7 Q. V>. -1 ; Llmjd V. Cruijie, 5 TiUiut. 24! ►. ^«', also, Uirmiiiiihiiiii v. .S/tenWioi, 33 Beav. mO. ('/) See per Lord ('anipb(dl iu Straij V. 7i'/(.s'.',r//, 1 E. & E. 900. (c) See Ijimdon Fnuiidcr.i' A.^sncin- tinn V. Cladr, 20 g. B. D. 576; Skiinur v. ('itij uf Jjomlon Mnrini- .TnKur(imr Ciiriionilii))!, 14 Q. B. 1). 882 ; Slniij v. h'n.sdl, 1 E. & E. 888, and Lord ]Jla(;kbuni'.s jud foment in Maxted v. Paine, No. 2, L. R. 6 Ex. 132 ; and the eases Evnnn v. IVond, .5 Eij. !) ; If nihil: in.''n)i v. Kdli/, (i E(|. 4BG ; l^hcjiiMinl v. Murphy, Ir. R. 2 E(i. 544, which, however, ar" all Stock Exchange ciises. ■\ /■!»? i m^ i 492 SALES NOT ON STOCK EXCHANGE. k I m Vendor's title. Bk. III. Chai). 4. gary to perfect his right to transfer, r.(f., pay all calls wIi'k h Sect. 0* become due before the purchaser becomes in equity the owner of the shares («). With respect to the title which a vendor of sliaros ciin Ic required to siiow, the distinction between ineorponitod and unincorporated companies is of great impoiiance. A vciulor of a share in an incorporated company has only to show n lltli to the shares he proposes to transfer ; and he cannot be re- quired to show any title in the company to its landed proiicrty or other assets (t). But the title of a vendor of a share in an unincorporated company is not so clearly separable from the title of the company ; and a vendor who sells a share in sncji a company without special conditions runs the serious risk of finding himself embarrassed by requisitions respecting the titlf of the company to its landed property (»)• The cases referred to below are quite sufficient to render it prudent for a vendor of shares in an unincorporated companv to stipulate that he shall not be required to adduce any evi- dence of the title of the company to any property whatevei'; and for a vendor of shares in any company to stipulate tliiit he shall not be required to adduce any evidence of liis own title, except the registry of himself as a shareholder in resjud of the shares offered for sale (x). The obligation of the purchaser is to pay the price apecd upon, and to accept a transfer of the shares, and to indemnity the vendor from all liability in respect of them accruing aftir the purchaser has become their equitable owner (ij). It has long been established that a contract for the sale and purcliase of shares is one of which specific performance will be en- forced iy) ; whence it follows that from the time when lli^ Purchaser's obligations. (s) As to his rij,'ht to iirocnre rot,M!\ W. 302, as to evidence of title 1} entries in a coniijany's books. (ij) t'hcale v. Keuu-anl, 3 De G. ^ J. 27 ; Duncvft v, Albrechl, 12 Sim. 189 ; Shaw V. Fighcr, 2 De G. & S. ll.andnDeG. M. & G. 596. Fn on Sp, Per., pp. 26 & 620 el .*■/., 2nd cd. m PUnciIASKU S OULIGATIOXS. 493 alls wliicli the owner OS C'lin le )i'ute{l (iml L voiulor of how ii title not 1)0 re- ■d property haro in an ,(' from the vrc in such ous risk of ing the title to render it ed compiUiy lice any evi- ty whatever ; ipulatc tlint of his own •r in resiuet [price agreed :o indemnify tcruiuf; ftftei' l(^). Itlm> Ind purchiise will be en- L' when hi- ce of title ly I book?. id-J, 3UeG.v-. Imht, 12 Sim. I2 De G. & *^. 1 G. 596. Fn lie C20 d scf, contract ought to have buen performed, the ptirolmscr Leoomes ^^- ''I- Clmp. 4. Soct. 6. in equity tlie owner of the shares ; and all the rights and ohli- (,'ations incidental to such ownership attach to him {z). More- iiver, this relation of trustee and ccHtiii qui' tni>it \\\ny ho ( reated, not only by a direct contract between the parties, but in other ways — e.g., if there is n series of assignments by e(iuitrtble owners, the ultimate assignee will be the rofliii quo trust of the legal owner, and be bound to indenniify him accordingly. Numerous authorities illustrate these principles ; biit as tliey relate to purchases and sales through brokers, they will be noticed hereafter ('()• The obligation of a purchaser to pay the price, accept the sliares, and indenniify the vendor against liability in respect of them, was recognised at law even before the Judicature acts ; iind for a breach of such an obligation an action will lie {h). Moreover, this obligation exists and will be enforced, notwith- standing the shares may have become valueless since the date of the contract by reason of the stoppage of the company or otherwise (c), and notwithstanding they cannot be registered ill the name of the purchaser (c). The risk is on the pur- ehaser, and as he benefits by a rise in the value of the shares, >o he auflfers' if they become worthless or worse. But the terms of the agreement nuiy throw the risk on the vendor ('/), f.) I.oriiij v. Ihtvi'i, 32 Ch. U. (!2."i. As to diviiluads declared liifore til is time, see Black v. Homer.-:lutiii,-l Ex. D. 24, ante,^. 490. («) See inter alia, l^hepherd v. irdk.-:i,i,; 3 Ch. 7U4, and 5 Eii. 2!)3 ; Kruits V. IVuud, 5 Eij. 9 ; Paine v. Hut(hi)ison, 3 Eq. 257, aflirmed 3 rli. 388, wlitTe forms of decree are :4iven. (h) See Kcllock v. Enthoreu, L. 1!. 9 Q. B. 241 ; allirinint; S. (.'. ^ Q. B. 458, where the vendor was made a contributory as a pivst member ; n'alker v. IJarHeU, 18 C. IJ. 845, and Humble v. Langston, 7 M. & W. 517. (c) See, at law, inter alia, Chapnan \.^hqikcr'l, L. R. 2 C. 1\ 29.8; Z/oic rinij v. Shciihcrd, L. 11. G (^ JJ. 30!) ; and in equity, inter alia, Paine v. Hutchinnon, 3 Eq. 257, and 3 Ch. 388 ; Evans v. JVood, 5 Eq. 9 ; Hodrjkinsvn v. Kelly, (i Ec^. 490 ; Hawkins v. Maltluj, 6 Eq. 505, and 4 Ch. 200 ; Lorinfj v. Davis, 32 (Jh. J). C25, whieh, liowover, were idl cases in which the defendant had accepted the transfers, (,'onipare P'lrmimjhani v. Shcriilan, 33 Beav. (i()(\ which, however, cannot now be relieil on, as was admitted by the M. R. in Fcnwick v. Wood, G .June, 1870, and see 3 Ch. 393. {d) See iMir Lord Campbell in Stray v. Russell, 1 E. & E. p. 900 ; and Wilkinson v. Lloyd, 7 Q. B. 27. Fry, tip. Per., p. 032, 2ud ed. m %-■ m 1U4 Uk. III. Cbap. t. Sect. 6. Sales of sharcH in compnnieii being wound up. Position of par- ticM wlicre tliu tilmrcs liougiit and sold are not identical. Kenipson r. 8uunders. Ex parte Pan- mure, SAI-ES NOT ().\ STOCK KXCJIANGK. Further, a contract for the sale of shares in a company loin.; W(»un(l up under the act of 18G2 is perfectly valid, altliouuli nuulo during the liquidation of the company. The provisions of the Companies net, 1802, §§ 131 — 153, declaring certain transfers made after the conuneiu-enient of the winding up to be void, operate only to prevent the register of slmreholdois or the list of contributories from being altered by reason of such transfer (e) ; and such a contract is binding upon u ^m. chaser, although he can show that he was ignorant of the tm t of the company having gone into liquidation (./' i. On the other hand, a contract for the sale and purchase ol' shares docs not bind the purchaser to accept what does not answer the description of the shares which he agreed to bn\ . If, therefore, such shares do not exist, he is not compelliiblf to pay the price agreed upon ; and if he has paid it in if,'no- ranee of the facts, he can recover it back as money ])aid for a consideration which has failed (//). In Kei)i2)8oii v. Saunders (h) it was held that a pui'chascr of shares in a projected company which was never formed, was entitled to recover back his money from the vendoi', altliuii},'Ii the vendor was not an original subscriber, and had himself purchased the shares from other persons. Again, an authority to obtain shares from company A. is not pursued by obtaining shares from company B., and if tlicv are obtained by mistake or otherwise the principal is not bound to take them, and can repudiate them if they are registered in his name (i). In such a case the agent is liable to company ]'>. for the damages that company may have sustained by losinj,' the allottee as a shareholder (/i). Again, ".vhere shares are apparently bought, and tiie eerti- («) Biedemiaii v. Stone, L. K. 2 (.'. P. 504 ; Rudge v. Bo^vmaii, L. H. 3 Q. B. (589. See ante, p. 471. (/) Rudge v. Jiomnan, L. R. 3 Q. B. G8i), G97. See, a.i to en- forcing such a contract in eiiuity, Emmerson's case, 1 Cli. 433, ex- plained by Wood, L. J., in J'avie V. llulchiuson, 3 Cli. 38S, ,?91 r ry, Sp. Per., (i34. ((j) TVatkms v. Huntliy, 2 Car. i\: P. 410, note ; JVidropp v. i>olomvii, 8 V. B. 345. (7i) 4 Bing. 5. Compare .S7<7(( v, JSailis, 2 P. W. 217 ; Mitckll v, Newhall, 15 M. & W. 308. (t) Ex parte Panmure, i-l L'li. P. 3G7. (/,) lb., where tlie damair^s wei ■ tin- whole amount of the sharus. |!¥. m I'lUd'AnATION i»l rUANSl'i;it. 4!)5 licutes for tliciii prove to bi' Ibrgecl, tlio purchaser can recover Hk. III. cimi). 4. Sect, 0, tlit'ii' price frt)in the vendor (/). Strictly speaking, it is the purchaser's duty to prepare the Prcparfttion of transfer, and to tender it to the trunsfernr for execution (/«) ; but the form of transfer is so simple that in practice the vendor iills it up and sends it to the purchaser to execute. The eilect of a transfer in blank (//), and also the questioii whose duty it is to procure it to be registered (o) have been alreiKly considered. An important (luestion connected with tlie transfer is, whether Ti-ansfor u> tlio vcnilor is bound to transfer to any person nominated by nominee, tilt' purchaser, or can insist on transferring to the purchaser himself. As will be seen hereafter, a purchaser of shares sold (in the Stock Exchange is entitled to require a transfer to himself or his nominee (y>). Lord Blackburn has stated his (ipinion to be that any other purchaser has the same right (q). lint it must be borne in mind that a transfer does not always lelievo a transferor from all liability (/•), imd that it is often a matter of great importance to a transferor that his transferee slmll bi' a person of substance. Whatever, therefore, the rule iiiiiv be in cases where the transferor is under no liability, or wlicre by his transfer he frees himself from all liability, it is very questionable whether a vi-ndor of shares who has not ii;,'reed expressly or impliedly (by selling on the Stock Ex- thange) to transfer to the nominee of the person with whom he has contracted, is under any obligation to transfer to such iiuminee (jf) . A vendor of a leasehold estate who bas him- self entered into onerous covenants, is surely not under any obligation to assign to a pauper at the request of the laucliuser, unlcas indeed the; purchaser enters into a covenant (/) Roijal Exrhtiuje Asanr. Co. v. .U»i,r,' -1 N. R. U3, Q. 15., ii case of l"r.;'i'(l (lelieutun'S. (m) Huiiiblc V. LamjMim, 7 J[. & W. 517, and ptr Lord Blackburn, in }>kdn\ V. y'di/if, Mo. 2, L. K. E.x. 13i (ii) Anii\ J). 471 it neti, (") .l-idM.. 491. (ri M,i.Hnl\. /'.a»,-, No. 2, 1-. H. E.\. 132. (7) See hi^ judfjment in tlie case last cited. (r) E.g., in companies I'ormed and registered under the Companies act, 18(J2, from liability a.-< u past member. (.s) Coles V. Brutmr.', 4 Cli. 3, is an authority to tlie etl'ect that he is not. WK: ^ m 406 SALES NOT ON SrotIK LXCIIANUE. ?i t I' Lien of vendor for unpaid pur' uhaw-mohoy. Fniud by tlio vuller. Bk. III. Chap. 4. for iiidt'iuiiity whifli would obviously reui«»vo tin- vimkIoi's oltjectioiiH. It is conceived tliiit nn unpaid vcMidor of a hIiiU'o in u cuiii- \)m\y has the same right of stopping the delivery to an in- solvent purchaser that a seller of ordinary goods has in similar cases. Fraudulent sale. A person wlio fraudulently sells shares in a company wlilth he knows has no existence, is criminally responsildo (0. IJiit the rule carcat rniptur renders it lawful for a person liuMinir shares in an insolvent company to sell them to any one uillimr to buy them ; and in the absence of misrcprcscntiition liv the seller, the buyer is apparently without renu-dy iifiuinst him (k). A person who has been induced to purchase shares by frmul on the part of the seller, can, at his option, either kt't'|) tin' shares and sue for the damngo he has sustained hy llic I'niiul, or repudiate the contract, and recover the money paid undtr it. But he cannot adopt the latter alternative uidess he fiiii, when the action is brought, restore the shares in the same state in which he took them, and place the seller in the saiiu' position in which he stood before the sale (.<). The puiihastr can also n»aintain an action to rescind the contract, and to compel the vendor to indemnify him. And the fact that tlie plaintitl' sold some of the shares before he knew of the fiaiul, will not disentith; him to relief, if the contract is sevciabh', and this it Inis been held to bo, where all the shares Ii(iu},'lit are shares in the same compaiiy (y). Nor will the forfeiture of the shares after the commencement of the action affect his rights (;). Unless, however, the company is implicated in the fraud, the purchaser, if he has become a share- (0 See Maccallum v. Turton, 2 V. & .J. 183. {u) Sec nemfry v. Butler, E. B. & E. 887 ; .SVrai/ v. Rimell, I E. & E. 888, and ante, p. 493. (x) Clarke v. JHfksou, E. B. & E. 148; and -ee ilutnrin v. Tredinnirl:, citi'd ill llie next note. As to octions i'or dama;;;es sustained liy taking shares on the faitli of frau- dulent statenients, see Cltirki: v, JJick8on, C C. B. N. S. 45:3 ; iW/ci' v. Bayshaw, 4 H. & N. .')38 ; Dmi'- snn v. Tulloch, 3 Macqueen, 78;J; Tmjcross V. Grant, 2 C. P. D. 469. (;/) Matnriii v. Tralinnid, 2 N. 11. ."lU, and 4 ib. 15. (•.) Ibid. BALES BY AUCTION. 497 lu vendor s Imlder, cnnnot, it is conceived, prevent culls being made J'''- "'• c''M>. ■*• upon li i m (rt ) . If a person is induced to sell shixros by the fraud of the Fraud on seller, purchnser, the vendor has sinilhir rights to those which a pur- chaser hns in tlie converse case already considered. But '"'^^!'.\"'f''""' *-""'''^' _ •' on title of luir- wliere the purchaser is innocent of the fraud, and a i»orson's chaser, sliiirt's have been fraudulently sold and transferred by others, liiij rights against the purehasior will depend upon whether the latter has a( cpiired the legal ownership or the right to call for the legal ownership, hondfuh', for value, and without notice of till' i'nuul. W he has, his title cannot be impeached (/>) ; but it' lie has not, the shares nuiy be recovered from him, unless the eluimant has lost his right to relief by his own negligence, lapse of time, or some other special circumstance (c). Shares are not uniivquently sold by auction. If an a j- S*'!**' "f »'""■''* . l)y uii' tion. tioueer sells shares, without disclosmg the persons on whose hthalf he sells, he wiii be personally responsible for the duo cuiapletion ■ f the sale, and will be liable to the purchaser in damages for the non-transfer of the shares to him {d). More- uver, if in such a case the atictioneer, when called upon to transfer the shares refers the purchaser to the owners, it becomes unnecessary for the purchaser to tender a deed of iiaiisfer to the auctioneer before suing liim, for by such a let'erence the auctioneer discharges the purchaser from ten- dering any deed of transfer to him {e). If shares are sold subject to a condition that if they are not paid for by a certain time, the seller shall be at liberty to resell them, and shall be entitled to recover from the purchaser any loss sustained by the resale, and the shares are sold and resold under this con- dition, the first purchaser can be sued on the special contract entered into by him {f). (a) Sec nn(«, book i. c. 3, and tn/m, (c) See Tivjhr v. Great Indian' I'ook Iv. c. 1, § 10, uiuler the head Unil. Co., 4 Du G. & J. 550, ante,. • uiitiibutoriL'Si. lUoxamx. Metropn- j). 473, and otlier cases of forged- litim (kil, V,,., 4 N. U. 51, \.-(J. W., transfers cited ante, p. 483 et seq. wliiTe an injunction was granted is, {d) FianUyn v. Lamond, 4 C. B.. it is conceived, not opposed to this, 637. as the plaintiti' was not a share- (r) lb. ''°lder. (/) Lamond v. Damll, 9 Q. B.- ('') See ante, pp, 476 d seq. 1030. L.C. K K -198 Dk. III. Clmi.. 4. Sect. ti. Actions by piir- chaser aguinist seller. Actions Ijy seller ilKiiinst pur- cbaser. Transfers in blank. Dani.igt's re- coverable wlien contract for sale is broken. SALES XOT ON STOCK KXClIAN(ii;. In ail acti'^ii by a purcliuser of sliares against a seller, I'ui- not transferring the siiares bought, the purchaser must prove — 1, that ho was ready and willing to pay for the shares (<;», and "2, that ho tendered to the seller for his execution u proper instrument of transfer (//). The necessity for such tender, however, only exists upon the supposition that some formal document is re(|Uired to render the transfer of the sliuros complete, and upon the further supposition that the seller lia> not discharged the purchaser from malnng the tender ((). Again, a seller suing a purchaser for not accepting sluuos must prove readiness and willingness on his, the seller's part, to transfer those shares to the purchaser (A). The circum- stances that a call is due upon shares agreed to be sold, and that they are not transferable so long as the call remuins unpaid, do not disprove readiness and willingness on the part of the seller to transfer, if he was in fact ready and able to pay the call in question (/). The effect of transfers in blank has been already con- sidered (»/). The decisions at Liw on this subject nuist now be taken with the qualifications rendered necessary by tln' decisions in equity. In an action by tlie seller of shares against the pinvluiser for not accei)ling them, the damages are measured liy tlic ditfereiice between the cc^ntract price and the market price at the time of the purchaser's breach of contract (;<) ; '""^ it is for the jury to determine when this time was (o). So, in an action by the purchaser of shares against the seller for not delivering them, the damages are measured by the (lill'eroncc ((/) Lanrmce v. Knowlai, 5 Hinj;. X. C. 309, In Tewp'sf v. Kllnrr, 2 C. 1;. 300, tlie Jivernieut el' reuil'iu'ss and willingness was traver.seil too liiri^'ely. (/() Stqiheim v. De Maliiia, 4 Q. B. 422 ; Bowlbij v. B,U, 3 V. 13. 284 ; drecii v. MHrnin, (I Jur. 72S, g. B. (i) Fianldim v. LamnxiJ, 4 ('. B. (!37. (/.) Il(()iiuiic V. (tdlilnn; 11 y\. & AV. 84!). As to the duty to i,r(H'ur, a transfer, .sec aiitt;li. l!tl, ar.d infiu. p. r)0(). (/) Shdir V. Rotrlrij, K; M. >^ W, 810. (//() Atiti; p. 471 d si-tj. (/() Sluiic V. Holhmf, 15 lAI. i W. 130; Steivurf v. Gnif;/, 8 M. & W. 160 ; Pott V. Flathcr, 5 Ra. Ca. >V"i. ((») Il)iil., and see BurmI v. Hamilton, 2 l!a. Ca. G:i-i. si'iuirrc I'KiiroiniANCF.. •li>[) bt'tweeu tliu coiitmct price and the luiirket i)rice iit the time Bk. III. ciiiip. 4. Sect. 6. when they ought to have heen delivered (/)). Where, however, :in action is brought for not re-delivering- shares lent and ;i(rreetl to be returned on a given day, the damages are mea- sured by the market price of the shares at the time of the trifil ((/) ; and the same rule is adopted in estimating damages in actions against companies for not delivering shares at the time they ought (r). An action will lie for specific i)erforniance of a contract f'pocifie wrform- for the purchase and sale of shares (s) if it is capable of being of sale, performed (0 : and the purchaser will be compelled to pay the price, although it may have been expressed to be paid in the ileed of transfer, if, in fact, it was not thus paid (ii) ; and will l)e compelled to accept a transfer of the shares he has bought, ;iih1 to indemnify the seller from all liabilities accruing subse- (|uently to the sale (.»;) ; and the seller will be compelled to account for any monies he nniy have received from an inii)ropcr subsequent sale to another pi-rson (//). The Court has, how- ever, refused to compel a purchaser of scrip to accept shares, ■ml indemnify tlie seller from calls upon them (:) ; and to compel iin allottee of shares lo accept them, and to execute the company's dc^d in respect of them (") ; and to compel the (]/) TniiprKl Kihli' '■'•, (', 11. (7) Owen V. J!oHtli, 14 C, 1'.. ;i27. If tliu sliares have liccn retui'iied, till' (lanwigi's must be limited to thu loss causwl liy their (lutentiim. Williams v. Archet; ') ('. B. ;}1S. ■r) CorkenI! v. Vnn Diemen's Laud i\ 18 C. B. 454, ami 1 C. B. N. S. (n) Ante,]). 40.3. (') See, as to thii?, IjirwiniilnDii v. l^kmhn, 33 Beav. 600, and cmu- I'lire Pnolc r. Middkton, 2!) Beav. I'iKi; and see ante, p. 4!)3, from whiili it appears, tliat altliou.^h re- ;'i>tratiiin in the purchaser's nauiu may lie impossible, he can be com- pelled in equity to indeninil'y tlui veiulor. (") JyUson v. KcatiiKj, '21 Bea\'. 121, and 4 Di'C. 1*^.1.588. Tliecasc si'enis, at lirst si^'ht, to have been a hard one \\\»m the defendant ; but the deed stated that /(/ had paiil tlie money, and this lie knew was not the fact, lie could not, therefuri', be treated as havin;» been misled by the plaintitr or by the eontents of the deed. (.'•) U'ljunr V. Price, li De C. & S. 'MO, and other eases eited, (tide, pp. 4!)2, 40:3. As to the ri^ht of a nnirt^M<:;ee of .shares to an indemnity from his mortj^agor, see J'heiie v, dillan, 5 Ha. 1. {11) Jhekitt v. nHlmiiKjIi, ,H Ha. 188. (;) Jiirhmin v. Cocker, 4 Beav. .')!». ( 'ompare this with th last case. ((») ShfJIield, dr., (ian Jo, v. //«)•- rlmi, 17 Beav. -M-l. K K 2 m. .fm m 600 Lk. III. Chap. 4 Sect. 6. Relief where directors refuse to allow u transfer. Jurisdiction under § 3.") of tlie Coinijanius act, 1862. SALES ON STOCK EXCHANGE. promoters of a company to tleliver shares to a subscriber to the company (h). Neither will the Court interfere to coniiitl the completion of a gratuitous and intended transfer (c). In Poule V. MiddUtton {d), a purchaser of shares ubtaiiit'd a decree against the seller for the specific performaiico of the contract of sale, although the directors refused to allow the defendant to transfer his shares. The contract was valid without their consent ; and they could not prevent the defen- dant from completing it, nor object to that mode of transfer which they were in the habit of allowing in other cases. How far disputes between the vendor and purchaser of shares may be determined by means of the summaiy jurisdiction con- ferred by § 35 of the Companies act, 1862, has been often dis- cussed, but is not yet satisfactorily settled. The jurisdiction apparently exists, but it is discretionary only, and the decisions seem to show that the Court will be slow to exercise the juris- diction except where the legal title of the applicant is clear (c). Pales of shares on the Stock Exeliangc. 2. Sales on the Stock Exchancjc. Having now alluded to contracts for the sale of shares otlier- wise than on the Stock Exchange, it is proposed to notice the effect of entering into such contracts throtigh members of thiit body. In practice scrip and shares are usually bought and sold through jobbers and broker.-j (/) ; and a person employing llrolters and jobbers. {h) Co'umhinc v. Chichester, 2 PIi. 27. In this case, however, the pro- moters did not appear to have any shares wliieli tlicj' could allot. (f) 8ee Milnnj v. LunJ, 4 Dc G. F. & J. z(i4. ((/) 29 JJeav. ehes. Both the rules and unwritten practices are altered fiom time to time, but a contract must be interpreted according to the custom as it existed at the date of the contract (h). The rules and practices of the Stock Exchange respecting Course of a the sale and purchase of shares will be found stated in Maxtcd Exchange. \. Paine (1), Borvv'unj v. Slirphcrd (m), Gritisrll v. liristoirc (n), Cnlcs V. lirifiowc {n), liontic v. Morri>i (p), Merry v. Xickalh (q), ■ml Tharkrr v. Hardy (/■) ; and from those cases it appears that in the ordinary course of events a sale of shares on the Stock Exeliange is essentially a transaction of the following descrip- tion :— (j) See Fket v. Murfon, L. R. 7 II. B. 12(i ; llol,i,i.mi. v. Mollett, L. R. : II. L. 802, ivvL'isiiig L. R. 5 C. V. «G, and L. 1!. 7 ( '. P. 84, and the ^.■a,^es tliere rcfiTred to. (//) Stray v. liiifisdl, 1 E. & E. ^SS ; Btedirman v. Stone, L. R. 2 ('. P. 504 ; Grusdl v. Bmtov;; L. !i. 4 C. P. ;j() ; Culcs V. Briitonr, 4 III. 3 ; Bowriiuj v. Shepherd, L. R. (5 II. B. .309; Dinirnn \. IIUI, L. R. (i E.^. 255, reversed in part, L. R. 8 h. 242. ('■) Ante, p. 489. (L) Per Lord Blackburn, Maxted V. J'ainc, 2nd action, L. R. G E.\. i:}2, KJO. (0 L. R. 4 Ex. 203, and 6 E... 132. (hi) L. R. (i Q. B. .309. (») L. R. 4 0. v. 3(i, and 3 (J. P. 112. («)) 4 Ch. 3, and « Eq. 149. {p) 13 E([. -203, overruled by Mcvrij v. Nickalls. (7) 7 Ch. 733, and L. R. 7 H. L. .')30. Seii, also, K.c puitc Grant, 13 Ch. D. 667. (»•) 4 Q. B. D. 685. 602 KALKS ON STOCK EXCIIANGK. IJk. III. Cbap. 4. Sect. (5. ^ 1. There is a contiact between the seUinjj; ami lunint broker or jobber, to the efl'ect that on a given day, called tlw account day, the shares sliall bo deHvernble and the price jiayable. 2. That on the day before the account day (called the name day) the buying broker or jt)l)ber gives or passes to the sclliii" broker a ticket containing the name of the person to whom the shares are to be transferred, and the price wliich that person has agreed to pay for them. 3. That the name so passed can be objected to witliiii n limited time (10 days) ; and if objected to on rcasoiialijc grounds, nuist be replaced by another name ; the coinniitti c of the Stock Exchange deciding, in case of dispute, wlutlur another name is to be given or not. •1. That the above-mentioned ticket is prepared bv the broker of the ultimate purchaser, and is passed (betwoiii VI and 2 o'clock on the name day) by such broker to his imiiK - diate vendor, and by him to his vendor, and so on, until it reaches the broker of the original seller. The ticket is in- dorsed by each member of the Stock Exchange, with his own name, as it passes through his hands. 5. That the original seller executes a transfer (prepared liy his broker) to the ultimate purchaser ; the considi'ration for such transfer being usually stated to be the price agreed to be paid by such purchaser (s). 6. That the selling broker looks for pa5'ment of the price iit which he sold to the broker or jobber who bought of him ; but usually takes from the broker of the ultimate purchaser the money be has agi'ced to pay, and then settles for the differenct , if an\', with the broker or jobber with whom he, the sellin,:.' broker, originally cont'.'acted. l-'rom this statement it is apparent that important and dilli- cult questioi:s of law are likely to arise, and, in order to solve them, it is proposed to consider the jjosition — (.s) The confusion introduced by 188, which, however, was put ri;lu thi;5 circumstance led to a variance iu tiie 2ud suit, 6 Eq. 505, ami 4 between the plead in;,'s and the evi- Cli. 200. dence in i/flic/a/is v. Mnltbt/, IJ Ch. VKNJXtK AM> IMTtCIIASlNG I'.l'iUKl'.l!. r.i)3 1. Of the vondor and of the broker or jobber who agrees to ^•^- ^'J- ^'''M'' •*• buy from him. '2. Of the vendor and the ultimate purcdiaser. ;i. (){ the vendor and the undisclosed and intermediate purchasers. }. Of the vendor and purchaser as regards their respective brokers. 1, .1,^ lo tlir posiiicDi n/ Ihr vcndnr and of tin; broker or jobber who nrjrrci to btnj from him. Tliere is a clear e given as the ultimate purchaser, and he paid fur the hlmn ^ and kept the transfers, but did not execute them, and did imt procure them to be registered in his name. The seller conse- quently remained liable to the companj' for calls, iind 1]( sought to compel the jobber who first bought the sliiuos to indenniify him. But it was held both by the Court )f Ex- chequer Chamber and by the Court of Api)eal in Ciiancory that the jobber had duly discharged his obligations, iind liud ceased to be liable. In these cases it did not appenr that the transferee could have been reasonably objected to; but the decisions showed the true position of purchasing jobbers, luid paved the way to those which follow. In Muxted v. Paine, No. 2 {b), the name passed was one which could have been reasonably objected to, and was tla name of a nominee of the true purchaser, who was paid ly him for accepting the transfer. It was, nevertheless, held, that there being no fraud on the part of the defendant (the first imrchasing jobber), he had disch^uaed his obligation, in- procuring the acceptance of a transfer b^ a person wlir, 'Oii'' not himself repudiate it, and to whom the vendor liP'' objected in due time. This case shows conclusively th / '■ between the vendor and purchasing jobber, and wlieic ih Maxtcd r. Paine, Ko. 2. ;^1 (;/) Allen v. Graves, L. R. 5 Q. B. 478. (,-) L. R. 4 C. P. 36, reversing S. C. 3 C. P. 112. (rt) 4 Ch. 3, reversing S. C. 6 Eq. 14!); Loring v. DavU, 32 Cli. 1). (/') L. R. Ex. 132, and 4 Ex. 203. See as to tlie jud^'URiit nt Lord Blackburn, in this case, Mcrni V. Nidalls, 7 Ch. 733. VENDOR AND ULTIMATE rUHCIIASEn. 505 both act hnmfide, it is tlie duty of the vciulor to make inquiry Bk- ^^^^^^^^^' ■*• respectiiif,' liis proposed trausforee. — If, us sonietiinos happens, the purchasing hrokor or johber Registration has expressly guaranteed the registration of the shares, he is tJ"*™" ^^ • liable to indemnify tlie seller against the eonsecpiences of their iion-rcnstration in the name of the transferee (r) ; but he is not liable for tlic solvency of the transferee. m 2. .Is to thi: iwsition of the vendor and the ultimate pitrehnser. When the ticket containing the name of the ultimate pur- Contract between chaser issued by his brokers is delivered to the vendor, and [ranScrccf '"* h^ has ^^xecnted a transfer of his shares, and that transfer lias hi'iii accepted by the purchaser, and he has paid the price, it is plain that the vendor has become a trustee for the pur- chaser, and that the purchaser is bound to indemnify the vendor against all liability in respect of the shares {(I). This has been decided even where the purcliaser has not executed tlie transfer {d) ; and where the registration of the transfer can- not take place by reason of the stoppage of the company (<■). The most recent decision on this point is Loring v. Davis (/), where the original contract was void under Leeman's act, 30 Vict. c. 29, and the transfer had not been executed by the purchaser ; but he had authorised his agents to accept the shares, and they had done so. Even before the Judicature acts, where the vendor and ulti- mate purchaser had been thus brought into direct communica- tion with each other, the vendor could sue the purchaser at Loring i'. Davis. ((•) Cii'^e V. Paine, G Eq. 641. and 4 Ch. 441. ((/) Paine v. Hutchin.ion, 3 E(|. 2r)7, and 3 Vh. 388 ; ILxlijHii.wu V. KAly, () Ell. 4!)C ; Haivkins v, Mnlthii, (i El). 50r), and 4 Ch. 200 ; >h>iilur(l V. (Ulleiqne, 5 Ef^. 293, and :iCli. 764 ; HhepiMrd v. Murphy, Ir. Rep. 2 Eij. 544, and 1(1 W. R. 948 ; n'linne v. Price, 3 De G. & Sni. 310. (') Evans v. IVood, 5 Eq. 9 ; Hodgkinsou v. KtUn, 6 Eq. 496 ; Holmcn V. Sijmons, 13 Eq. 6(). Com- pare Bermimjhum v. t>heridan, 33 Beav. (160, which cannot now be relied npon. See, on it, 3 Cb. 393. (/) 32 Cli. D. 025. The autho- rity to accept the sliarcs was revoked by one letter but conferred by an- other sent with it. 50G SALKS ON hXDlUv KXClI.VXUi:. Privity of contract. Kk. III. Chap. 4. ln^y foi' such indemnit}' ((/) : for tlion, at all events, tlioic wns Sect. 6. , ' -- clearly a contract between them (//). The precise moment when the contract in these cases is first created, has given rise to some difference of upiiiioii, but the better opinion seems to be that a contiact bctwuin the vendor and the ultimate purchaser exists, iis soon as the ticket containing the purchaser's name has been handed, bv his authority, to the vendor, and he has ac( epted the name, and indicated that acceptance to the purchaser (/). Tlii?, opinion is based upon the ground tliat tlie ticket is dmwii up and issued by the agent of the purchaser, who is autlimiscd h> use the machinery of the Stock Exchange, and to tiaiisniit the ticket to any person to whom the operation of that macliiiiciv may bring it. AVhen that person is ascertained, and the ticl<(t is handed to him, an offer is made by the jmrdiaser to Imv of the vendor, upon the terms specified - '• ' Sect. 6. who buys sliiii'tis tlirough a lu'oker may bo foinpellecl to pay for tlieni, althougli the company may decliue to accept him as a slmrehokler ; and he has endeavoured to repudiate the shares. The facts of this case were as follows : — Some shares ill the Royal British Bank were sold by the defendant to the ]ihiintifl" through brokers, who were members of the Stock Kxchnnge. Soon after tlie sale the bank stopped i)ayment, 1111(1 tlie directors refused to allow any transfers of shares. The phiintilT, the piu-chaser, repudiated the purchase, ami directed his broker not to pay the purchase-money. The broker, however, did pay it, as he was bound to do by the riiks of the Stock J'^xchange. By the same rules it was in- cunibont on the purchaser, and lot (m the seller, to obtain the consent of the directors to the transfer. The plaintiff took 110 steps to procure such consent, and refused to repay his broker the money he had paid for the sliares. This, how- ever, the plaintiff was ultimately compelled to do by an action lit law (0, and he then brought an action to recover their price from the seller. It was held that the action could not be sus- tained : 1. Because there had not been a total failure of con- sideration, inasmuch as the plahitiff had got the transfers and the certificates ; 2. Because, by the rules of the Stock Ex- ihiiiif^e, it was not the duty of the seller to procure the con- sent of the directors to the transfers ; and 3. Because the phiintiff was not himself ready and willing to perform the contract on his part. It follows that if the buyer has paid the seller or his broker London Founders" , • . /. , i' / 1 • 1 • 1 1 Association i'. "U tlie r.!ceipt ot a proper transfer (winch is tlie usual prac- ciarkc. tiicl, and the company declines to accept the buyer, he cannot iccover from the seller the amount paid for the shares, the vtiiilor himself being in no default (/»)• A reasonable time for the transfer of shares bought and sold Time for com- ■ • r T • ,1 ■ . i> 1 ,1 1 1 . 1 plotiiig transfers. IS implied 111 tlie contract lor sale ; and where the sale is made through brokers, the rules of the Stock Exchange fixing the time within which shares sold are to be delivered are admis- (') See Tojilor v. Htrmj, -2 V. J5. N. (m) Lonilon FomnUrs' Amjcintioii 1""', IHT. V. ninrh; 20 (,). V,. D. .57(i. V 508 HALI08 ON STOCK EXCHANGE. Same broker iictiiif; fur Inth parties. Bk. III. Chap. 4. ^[\)\q j^ evidence upon the question wlmt is reasonnhlo timo • Hltliough the bu3in{:( and scllinfj brokers nre not proved to be members of the Exchange (;/). As to tin- delivery of cdti- fieates, see ante, p. 490. A curious and instructive case arose in Irehmd in wliich the same broker acted for both buyer and seller without tin ir knowing it. He was instructed to sel! shares in a company bv some of his customers, and he was instructed to buy shares in the same company for others of liis customers. He sent bought and sold notes to them respectively, and in his books he debited the bu3ers with the price and credited the sellers with the same amount. Some of the buyers sent him cheques for the nu)ney they had to jiay. Others of the buyers had money in his hands. No money reached the sellers, and thev knew nothing of what was being done about the payment of the purcliase-money. The broker became bankrujit. Tlic buyers sued the sellers for the shares : a decree was made in their favour, by the Court of first instance, but this was reversed on appeal, on the ground that the parties did not know that the same broker was acting for them, and that the vendors had not been paid, and that until they were, the purchasers were not entitled to the shares (o). Undisclosed principals. Intermediate purchasers. 3. As to the position of the vendor and tlir iDidistlosfd and intn-midiaif. jmrchascrs. If the first purchaser is a broker buying for a principal, tlic liabilities of such principal are the same as the liabilities of a purchasing broker or jobber ( j)). These have been already examined. But in the course of a sale on the Stock Exchange, the only persons who are brought into contact with the vendor are the first and ultimate purchasers. ^Vith the intermediate pur- (ji) Stewart v. Cmitij, 8 M. & W. 160. See, also, Field v. Lelean, (j H. & N. G17, where evidence of a custom among mining sharebrokers to pay on delivery was held admis- sible upon the question of leusion- able time. In this case both the plaintiff and the defendant wuiv mining sharebrokers. { Q. B. 478, where there was a special arrangement oetween the plaiutitr's iToker and the defcndaut, an iuter- iiiediate johlier. (0 CtLitdlan v. Hohson, 10 Eq. 47 ; iiud see ante, p. 506. ((() 8 Ch. »;3!), an ITUCIIASKU A\I> rilKIl! IIIIOKKUS. 0U Loriinj V. llariH, M Cli. I). i)-2o. »!<• '"•,^^'''*»'' '• In none of thi-sc cases wa» the transfer exocutwl r' *'_J l)y tlu- transferee. EvavH V. Wixiil, r> ]']((. 0. lloihjkinmm v. Kiilij, G ICii. -iSMi. In liotli (if wliicli till' iDrnpuny lind stopped. 2, L'ni'UCceHHful nuitw. UawkutH V. Malthy, 3 Cli. IHH, rcvei-ainK H. C. 4 K.|. 372. Tlie I'ttMw on apijcivl turned on the pleiidini;?*. llermiiKjkam v. Shtridun, 3!J Heiiv. (iOd. Not now to 1)1' relied upon. Sec ante, p. fjO.'i, note {<■). III. Vendor unainst rudui que trust of transferee. ((() Huccessfiil suitH. Cantellan v. Hobmn, 10 E([. 47. Urown V. niuck, Ut E"*> ■^^ sellin;,' •^ . broker. his instructions if he can do so, and if he cannot, not to sell at ;ill. His duty is jjerfornicd when ho has entered into a binding contract for sale, and has oivcii the luuue of the buyer to his employer (//). If the selling broker receives the price, it is his duty to hand it over to his principal ; but it is no part of a selling broker's legal duty to his employer to procure payment of the price, nor to procure the execution by the purchaser of the transfer, nor to procure the registration thereof (*). Nor has it yet been decided that it is part of his duty to inquire into the solvency of the transferee (a). As between the vendor iind his own broker, the sale is eft'ected by the contract to sell, iilthougli the vendor may refuse to carrj' it out (b). [y) A broker who bydisrcfjarding tk- refjuirements of 30 Vict. c. 2d, kih to effect a binding contract, is liable to liis employer for negligence, >ee Kdlson v. James, 9 Q. K. D. ■AG, mie, p. 489. (f.) See Clark's Law of Joint Stock Companies (Scotch), 145. (u) See, on this subject, Lord Blackburn's judgment in Mnxted v. I'ninr, No. 2, L. R. C Ex. 132. (6) i.'o.s.s V. Mose.s 1 C. B. 227. jmt 111, « 512 Bk. III. Chap. 4. Sect. 6. Duty of buying broker. I'roker buying wluit lie was not directed to buj. Revocation of broker's autlio- rity. Right of broker to inJeranity. SALES OX STOCK EXCHANGE. Again, the duty of a broker employed to buy is to bm- according to his instructions if he can ; and if he cannot, not to buy at all. He has no implied authority to enlarge tlu' time for completing the purchase when that time has once been fixed ; in other words, he lias no implied authority to contiiuK' the account (r). If he exceeds his authorit}' he exposes liini- self to liability to persons who rely on his having authuritv to buy, and arc damnified by its absence (>impm V. Rand, 1 Ex. 688. As to iiiilemnifyinj,' one's broker against Ae costs of an action In-oiiglit igaiust him, see Brown v. Hall, 7 C B. X. S. 503. i,.e. (k) 10 A. & E. 27. (0 1 Ex. 425. Compare this with Boidby V. Bell, 3 C". B. 284. («() 7 C. B. 881). Sec, us to the evidence to be adduced by a broker who seeks to recover a call paid by liiin, McEwen v. IFoods, 2 Car. & K. 330, and U Q. B. 13. (/() 2 C. B. N. S. 175. See, too, L I, 514 SALES ON STUCK EXCIIANCIK. Pollock r. Stables. Bk. III. Chap. 4. ^ broker, to buy some Royal British Bank shares for him Sect. <>. -The defendant accordingly bought the shares, which were to be paid for on a future day. Before that day arrived, the bank stopped payment, and the defendant refused to take or pay for the shares. The plaintiff thereupon paid for them in com- pliance with the rules of the Stock Exchange; and lie was helil entitled to recover the money so paid from the defendant. In Pollock V. Stables (o), the plaintiff, in pursuance of tho defendant's instructions, bought shares for him which tlio defendant neglected to take up. The broker who sold them, consequently re-sold them, and thereby a loss was sustained. The plaintiff, who was also a broker, made good this loss, as he was compellable to do by the rules of the Stock Exchange, and he was held entitled to recover the amount he had paid from the defendant. In Laccy v. Hill ( p), brokers bought stock for a customer, who suddenly died insolvent ; they having paid for the stock were held entitled to re-sell it and to prove against his estate for the loss they sustained. But a broker is not entitled to indemnity from his employer in respect of loss arising from his own default. Thus in his own default. /)„„<,«« V. Hill (q), the plaintiffs, who were brokers on tlie Stock Exchange, were instructed by the defendant to buy shares for a certain account, and afterwards to continue it. This was done ; but before the final settling-day arrived the brokers were declared defaulters, and according to the rules of the Stock Exchange all their transactions were peremptorily closed. The brokers were held entitled to be repaid moneys paid by them in order to keep open the account at the de- fendant's request, but not those furtiier sums which had become payable by reason of their own insolvency (;). Lacey v. Hill. Broker not entitled to indeninitv for Stray v. Russell, 1 E. & E. 888 ; Chapmmi v. Shepherd, L. R. 2 C. P. 228 ; Biederman v. Stone, ib. 504. The last two cases .show that the broker's ri(,'ht is not affected by § 153 of the Com])anies act, 18C2. See, further, as to the right of pur- chasing brokers to indemnity from their employers, Molktt v. RoHnnon, L. R. 7 H. L. 802; 7 C.P.84,aiiJ 5 C. P. 646. (()) 12 Q. B. 765. {p) Lacey v. Hill, Scriiiujmn claim, 8 Ch. 921. See ib., Cmiey's claim, 18 Eq. 182. (q) L. R. 8 Ex. 242, reversing S. C. 6 Ex. 255. (?•) Compare Hartas \. liihhns,i' VKNPOll AMI I'lJUCIIASKU AND TIIEIU DROKEItS. 515 Aeain, a broker who contracts to buy unnumbered shares in Uk. III. thai). 4. a joint-stock bank, contrary to 39 Vict. c. 29, has no claim iirtainst his employer if he refuses to accept the shares, unless iiuleed he authorised a purcliase contrary to the act (s). The cases above referred to estabUsh as a general doctrine Rules of Stock that wliiit a broker, employed in buying and selling shares for tingiUsheil "from imother person, is compelled by the rules of the Stock Ex- "^"B^ "^ '"■°'''•■'^• change to pay, in consequence of the non-performance by his employer of the contract entered into on his behalf, is recover- able from him by the broker. The principle of the decisions in question does not however extend further than this, viz., that brokers are impliedly authorised by those who employ them, to do what is usual and customary amongst brokers in matters such as those they are emjdoyed about. The cases whicli have been noticed do not show that persons who employ members of the Stock Exchange are affected by the rules of the Exchange without reference to the question of what is cus- tomary amongst its members ; and in truth, to non-members, such rules are only important so iar as they evidence usage. This is shown by the case of Westnqyp v. Solomon (t). There, After-made the defendant emplo^'ed the plaintift", a broker, to sell ten scrip ,„ ""^^ cei'tiiicates, which the phiintift" did. It afterwards appeared Solomon, that these certificates were forgeries, although neither the plaintitl" nor the defendant had any suspicion that such was the case. The committee of the Stock Exchange made a rule to the effect that the purchasers of the spurious scrip should have a right to demand from the sellers not only repayment of the purchase-money, but also payment of an additional fixed sum. In compliance with this rule, the plaintiff repaid to the pur- chaser the money received from him, and also the additional sum fixed by the rule ; but it was held, that the plaintiff was only entitled to recover from the defendant the money which the purchaser himself could have recovered at law ; namely the rmount paid by him with interest ; and it was held, that Q- B, D. 254, where the principal ratified the closing of the uccount ; and iacfi/v. //■{«, Crindey'.f cloim, 18 E'l. 182, where the brokers became 'iilaulter.s solely by reason of the pre- vious diifiiult of their principal ; ,sec Exjjartc I'anmure, 24 Ch. D. 367. (.•.•) Ante, p. 489. (0 8 C. B. 345. See, also, Simt- inij v. I'earce, 7 C. B. N, S. 449, and !) ib. 534. I. I. -J 516 SALES ON STOCK EXCHANGE. Bk. III. Chnp. 4. the nile, Imving been made after the sale, fonned no part of Sect. ♦». , that ixsage of brokers bj' which the defendant was bound. Brokers' charges. Accounts sent in by sharebrokers to their employers may be shown not to have included charges which ought to have been included ; and this is true even where the persons to whom such accounts are sent have dealt with other people upon the faith of the accounts being full and correct (it). Illegal punliascs A broker employed to buy or sell shares in an illegal com- broker.s!^ ^ P^i"}', or in a company which by law is not in a position to issue shares, cannot recover from his employer either any commission on the purchase or sale, or any money expended for him on accoimt of such shares (.r). (k) Daik V. LloTjd, 12 Q. B. 531. (x) Josephs V. Pebrer, 3 B.'& C. 639 ; Ex parte Neilson, 3 De G. M. & G. 556. See, further, as to illegal sales through brokers, Buck v. Buck, 1 Camp. 547 ; and Bousjkld v, Wil- son, 16 M. & AV. 185, both of whidi have been noticed already. See a7tte, p. 140. m SUIIKENDEU OF SHAKES. 517 Retirement by surrender. CHAPTER V. OF THE SURKENDER OF SHARES. 1. General Ohsenations. The right of a sliareholder to retire from a company of which Bk. III. Chap. 5 he is a member, by surrendering his shares to the company, depends upon the acts of ParHament, chai'ter, or regulations or customs which govern the company in question. AVhcre there is nothing enabling a shareholder to ret: _ by surrendering his shares, the ordinary partnership rule applies, and no surrender can be made except with the consent of all the shareholders (^0- II suoli a method of withdrawing from the company is autho- rised by its constitution, a surrender by a shareholder of his shares will of course be valid, if all the formaliti(,'S which may be necessary are duly complied with ; and where the power to surrender exists, the due observance of all necessary formalities will be presumed in favour of a shareholder who has in fact hiimi jide retired from the company, and whose shares have been cancelled or otherwise disposed of by the company {b). The right of a shareholder to retire by surrendering his shares, is not one of those matters as to which a majority of members binds a minority, or as to which directors have any implied authority to represent the company. Both principle and authority are clearly opposed to any such doctrine (c). Power of 111.1- jority to bind minority with reference to the relinquishment of sh.ircs. (a) Soo voliune on Partnership, rp. 573 et sej. Retirement by trans- fir is quite another matter, anil has been already referred to. CO See Lane's case^ 1 De G. J. & t>m, 504; Kiplimj v. Todd, and KipUnfj V. Alkui, 3 C. P. D. .330. The retirement nuist be complete, see Barry v. Navan and KiiKj'i (bounty Rail. Co., 4 L. R. Ir. 68. (f) The Plate Ghus, tt-c, Co. v. Sunley, 8 E. & B. 47, is not incon- sistent with this nor with the cases referred to in the text ; in that case tlie demurrer admitted that the com- pany had accepted the surrender of the shares then in (question. See as to special resohitions under the Companies act, 18G2, infra, p. 52(). 518 Sri5I!i:NI)l-.U oi'" SIIAUKS. l?k. Ill, Ch;ip. r>. Xor if directors have power to nccoi)t a surrender of sliarcs can they delegate tliis power to a manager (d). At tlio siuiie time if shares have been smrendered with the knowlodf'o of all the shareholders under circumstances full}- disclosed to tliciu all, and such surrender has not been questioned for a consider- able period, the company will be precluded from afterwards disputing the validity of the surrender (c). The following are leading authorities upon this subject : — Morgan's case. Morffoti's case (/). The company's deed authorised the directors to buy up, out of certain specified funds of tlic com- pany, anj' shares which might be oHered for sale. An extra- ordinary general meeting resolved that if any shareholdta- should be desirous of withdrawing from the company, tlio directors slunild be at liberty to purchase his shares upon certain speci- fied terms. A shareholder acted upon this resolution, coni- l)lied with the terms, and sold his shares to the company. But it was held that the resolution was not binding on the conipanv; and that the shareholder in question was properly made a contributory, although nearly five years had elapsed since Iii.s withdrawal. SunLope's case. Stanhope's casc {(j). The directors had power generally to act as might appear to them best for the interest of the com- pany. A dispute arose amongst them, and one of them re- tired, and his shares were surrendered and canctdled. It was held that his retirement was unauthorised, and he was put on ((/) CartmcU's case, 9 Ch. (J'Jl. ((') As in Jltotherhnod'ii aixi; 31 Beav. 365, and 4 De G. F. & J. r)()6 ; noticed infra, pp. 519 and r)22, anil Hunt's case, 32 Beav. 387. Implied notice to the director-s of the company tlnough the books of the company is not cnougli, Hidlmnrlcs case, 9 Vh. D. ;529 ; Ikniiaiii cO Co., 2,-) Ch. D, 752 ; CartmcWs case, 9 Ch. ()91, where the directors hiid jiower to accejit sur- renders. See, as to estojipel by con- duct, ante, ]). 47 c( seq. if) 1 De G. & S. 750, and 1 Mac. iS: G. 225. Richmond's Executors' c„.. the list of contributories ten years after his shares had been l'>k- HI. t'li ap. 5. cancelled. Munt's case {h). The directors of a company, disagreeing as Munt's case. to the mode of managing its affairs, and being divided into two parties, it was resolved that one of the two parties should retire, and that the other should take the management of the company and relieve the first from their liabilities. The directors composing one of the two parties did accordingly retire, and relinquish theii* shares in favour of the company ; but it was held that their retirement was altogether unautho- rised and invalid, and that they were contributories on the winding up of the company. The principles laid down in these cases were very much con- Agnonlturist '^ _ _ _ ■ Oattlo Insurance sidered in the course of winding up the Anncultnriiif Cattle Company. Iiisurancc Company. The company was formed in 18-4,5. In 1848 it had got into difhculties, and several shareholders wished to retire. This they could not do consistently with the company's deed of settlement. An arrangement, however, was made in November, 1848, under resolutions passed at a meeting of shareholders specially convened for the purpose, to the effect that a call of 4Z. per share should be made, and that those shareholders who wished to retire should, on a particular day, pay part only of the call, and that their shares should bo forfeited for non-payment of the rest. Under this arrangement many persons retired at once ; many, however, remained, and of those some retired afterwards under various arrangements made between themselves and the directors. In 1801 the company was ordered to be wound up, and in the course of such winding up it was held— 1. That having regard to the liiothcrhood's publicity and hona Jides of the arrangement come to in fj,„^||,,o,nbc's Xovember, 1848, and to the time which had since elapsed, the ^'^^'^• validity of the retirement of those shareholders who withdrew in pursuance of that arrangement could not be disputed, and that those persons therefore were not liable to be placed on the list of contributories (i). 2. That those persons who retired ^'^P^'-kmau's case. (/i) 22 Beav. 55. See, too, Bin- (i) Emm v. Smallcomhp, L. E. 3 Mtt's cm, 18 Beav. 339, and 5 l)e II. L. 24!) ; Brotherhood's case, 31 G. JI. & G. 284 ; Itichmond's case, Beav. 365, atfiriued 4 De G. F. & .T. mi Pimtn-'s rase, 4 K. & .1. 305. 5(iti. IJPl ipfff 520 Bk. III. Chap. 6. Houldsworth's COB*. Directors have no power to buy out shareholders. RclirLiutiit of shiirclioldcrs compared with refusal to accept shares. SURRENDER OF SHARES. afterwards by arrangement with the du'ectors, but without the knowledge of the other shareholders, were to be treated as shareholders still, and were liable to be placed on the list, although twelve years had elapsed since their retirement and the winding-up order (A). Moreover, where persons have only agreed to take sliaics, and have not become actual shareholders, the directors have im implied power to release them from their agreement (/). Nevir- theless, an express power to accept a surrender of sliares, or to rescind and abandon contracts, has been held to apply to con- tracts to take shares and to authorise a release of a person tidiii his agreement to become a member (in). The foregoing decisions sufficiently establish the doctrine that in the absence of a special authority enabling them so In do, directors have no power to bind the company by bming each other out ; nor by buying out shareholders ; nor liy accepting the surrender or relinquishment of shares to the company («)• Moreover, if the directors of a company mis- apply its funds by buying up shares in the company, they arc compellable to make good to the company the money su expended, with interest (r^- It is necessary, however, to distinguish the retirement of a shareholder from the refusal of a person to be a shareholder in (/.;) Sparkmun v. Emns, L. R. 3 H. L. 171 ; llmtldsicorth v. Evans, ib. 203 ; Stanhoj^es case, I Ch. 161 ; Stewart's case, ib. 511. Seu, on these cases, tlie note infra, pp. 522 and 523. (0 Hall's case, 5 Ch. 707 ; Adams' case, 13 Eq. 474. (m) Snell's case, 5 Ch. 22 ; Thomas' case, 13 Eq, 437 : and compare Kip- ling v. Toihl, 3 C. ?. D. 350, infra, 525, where tlie Court prusunied a surrender of shares which directors liad under a special act. (j() See, further, Trevor v. Whit- worth, 12 App. Ca. 409, and tlie criticisms therein on iJronfield Silk- stone Coal Co., 17 Ch. I). 76 ; London and Provincial Coal Co., 5 CIi. D, 525 ; Phosphate of Lime Co.y.Onm, L. R. 7 C. P. 43 ; Harris v. North Devon Rail. Co., 20 Beav. 384; IValker's case, 2 Jur. N. S. 121(i, L. J. ; Playfair v. BirminijhaM, Bristol, (L-c, Co., 1 lia. Ca, 640; Hodykinson v. National Lire SPu-l: Insur. Co., 26 Beav. 473, and 4 ])'■ G. & J. 422 ; Burt v. British Nation Life Assur. Assoc, 4 De G. & J. 158 ; Paul and Beresford's auc, lU Jur. N. S. 692, M. R. {o) Krans v. Coventry, 8 Uu (!. M. & U. 835. See decree, pur. 4, varying pars. 5 and 6 of the decrw in the court below. See anh, y- 371. SUKltENDEU OV SlIAKKS. 521 a concern wliicli he never agi'eed to join (]") > *^"^^ i* ^^^^ ^^^y properlv Ijcen held tliat tlie principle of the above decisions does not apply to tlio case of a person who, having taken shares in a cdinpany formed for given objects, relinquishes such shares iuid retires from the company, upon a change being made in those objects without his consent (5). So, if it is doubtful whetlicr a person ever was a shareholder or not, an agreement itk'iising him from all liability, if any, may be validly made, so as to bind the company (r) ; and an allotment of shares made jmrsuant to an invalid resolution may be properly cancelled at all events before the shares are registered in the name of tlic allottee (s). But a general power to compromise does not authorise an agreement to allow a shareholder to retire when there is no dispute as to his membershii), and where there is no power to buy or accept a surrender of shares {t). It is further necessary to distinguish the retirement of a sliareholder by relinquishing his shares to the company, from liis retirement by transferring his shares to some or one of tlie directors of the company upon their own individual account. I'or whilst, in the absence of special authority, it is not com- [iiteiit for directors to accept on behalf of a company the surreiuler of shares held in the company, it is as competent for tlie directors of a company, as for anybody else, to accept shares in the comi)any from such shareholders as nuiy be willing to transfer them in the ordinary way. Consequently, an agree- ment between the directors and some of the shareholders of a company to the effect that the latter shall relinquish their shares and transfer them to the directors, is not ultra vires, or I5k. III. Chap. 5. Comproraise with doubtful shareholder. Surrender of shares to com- pany compared with a transfer of thenj to thu directors. (p) See Pirn's case, 3 De U. & S. 11, and I Mac. & O. 291 ; Hencssy's Mse, 2 Mac. & G. 201, and 3 De G. & S. 191, as to placing shares in a jitraon's name without autliority. Si'e (intf, p. 1!) d scq. (7) Mciin-'a case, IG Beav. 383. >•) ]latli'.'< nts,', S Ch. 1). 334 ; lord Belhavtn's case,^ De G. J. & Sm. 41 ; Dixon's case, L. R. 5 H. L. 606, leversing 5 Ch. 79. See JVright's 'w, 7 Ch. 55, reversing S. C. 12 H'l. :i;il; /'-u'.s- mse, 5 Eq. 118. (s) Barnett's case, 18 Eq. 507. (0 See L. R. 3 H. L. 188, 231 ; Adams' case, 13 Eq. 474 ; PJios-phate of Lime Co. v. Green, L. R. 7 C. P. 43 ; Dixon's case, 5 Ch. 79, was decided on the principle that there can be no compromise where there is no di.spute ; and although the House of Lords reversed the de- cision, see L. R. 5 H. L. 606, the principle is unquestionable. Conip. Wright's case, 7 Ch. 55. r 522 SrUIlKMtKU OK SlIAHKS. ]tk. III. C h ap. 6. in any way illegal, if tlie agreement is with tlu; directors as in- dividuals, and not with them as representing the company (i/). Ui)on the same principle, if a shareholder transfers his slmies to a director or to an ordinary individual, without iintice that the director is acting on hehalf of the company, the trans- feror does etl'ectually retire from the company ; althouj;h had he known that he was in fact surrendering his shares to tlie company, the surrender would have been inv .■id(j). Moreover, directors who individually agree to accept a sur- render of shares and to indemnify the surrenderor against calls, arc personally bound by their agreement, whether it is, as regards the company, tdtra vires or not (//). NOTE ON SMALLCOMRE'S CASE, SPACKMaN'S CASE, AND UOULDS- WORTHS CASE, REFERRED TO ABOVE, P. .11'J. Smallcombe retired in strict accordance with tlie arrangement come to in 1848. Houldsworth retired pursuant to the same arrangement, with this excep- tion, that he did not retire within the time fixed thereby, but sliortly afterwards ; the time having been extended by the directors. Upackman retired pursuant to another agreement altogetlier, come to between him and the directors for compromising litigation between him and the company. The House of Lords held, — 1. That the arrangement of 1848 was one by which a majority of rU'iitly Ifoulilswurth or, hv. liuiuj,' lU'iul, liis cxecutcirH were Ilk. III. Chap, ."i, (■(iiitril lilt lines'- S. Tliiit tliu iigrcciufnt with Spachmmi was out! which the direRtors hud no power t(i imikc. 1). Timl (ill t\u', 8hiirclii)lilcr.>< coukl not be troatcJ us having hail Hullicieiit nulice III' it tn jirechulu Iheiii rioiu disputiii;,' it, even after tlic laiwe of MiHiiy yciiiu 10. Tliiit lie tliiTcforo was alHo a contrilmloiy (<(), Tilt' liiinlH well! hy no means unaiiinioits in tlieir decision, and Lord St. I.t'oiiiircis, in a judi,'nient wiiicii tlie writer ventures to tiiinli >iu;,dit to have Tiiivaileil witii tlie House, >,'avi! Ids opinion, that in all tliree eases the coni- iiiiiiv iiM^,'lit to he held ])recliided from disputinj,' transuctions so lonj,' jiassed iistiiose ill (luu.stioii, and all of which were jierfeetly lioiidjiih: The same view was taken by Lord Romilly when the cases were before him (.fee 1 I'll. 1(J3). As tlic decisions Rtiind, however, they are extremely difficult to muneiie on iatisfactory grounds ; for the notici' which the shareholdera hill! ill J{oiildiiwiirth\i and S}mrkinnn\i cases was little if at all le.ss full than ilii' notice they had in Siuullcovihe'ti aise. Some },'eneral [)rinciples of value, liiiwuvor, can he extracted from these three cases. They show — 1. That a comiiany will be ])ri!cluded from disputin;; the validity of liaii.-actioiis sanctioneil by a general meeting,', but not bindin<^ on absentees, if .-iicli tran.sactions are Imwl Jidc, and such as all the shareholders, if trni jiiri.'i, could .sanction, and if it can be inferred that all the shareholders wtK iufoiiiied of them, and if no steps have been taken for a considerable tiiiic to inijieach them. i. That inforiiuition on the part of all the shareholder.s, sufficient for the ]iUii>o.se iu ([ucstion, must be inferred from notices sent to them all, in the ii-nal way, lelliii;,' them what has been done ; but not from reports, &c., not di.itiiictly K'viiif,' them this information. ;!. That powers of compromise and powers of i'orfeilure must Ik^ liond Jidc (Xeiviscd lor the piirjioses for which they are conferred, and that attempts to iiiaKc them availalde for other purposes will not succeed. This view of their joint eli'ect is sujiported by Vhonphatc of Lime Co. v. 'j'rirn, L. K. 7 C. P. 43, where the Court of Common Pleas held that a comiiany had ratified a purchaEe of shares which the directors had no power to make. 2. Surrender in particular cnmi)anies. It is necessary now to advert to the right to retire by suirender of shares in the various classes of companies which t.'xist in this country. Tlie rules of building societies invariably provide for the Building withdrawal of their unadvanced members, and the terras ou ^°'^'*''®^- (a) Stanhope's case, 1 Ch. 161, was like Spackman's. 521 BunriENDKn of suahf.s. Aiild r. (iliiHgow his consent lluilil. 8uo. Cost-book com- panies. Ilk. III. ciiiii.. r.. wliicli they can retire depend entirely on the rule.s {h) ; tlicM: rules cannot he altered to the prejudice of any inemher without Thus, where the rules enabled uiiadvaiiod inembi'rs to withdraw the sum at their credit in the sutiutv's books, it was held that no long as the society was not in liiiui- dation, any unadvanced member was entitled to witluhuw tlio amount at his credit in the books, although the assets cif the company had become depreciated, and a majority of the members had passed a resolution to the effect that Ts. G(/. per l)ound should be deducted from the amounts at tlie credit of the members, and be carried to a suspense account (c). The right of a shareholder i: a cost-book mining company to retire from the company upon the relinquishment of his shares, and payment of what may be due from him to the company, is established by custom, ami is therefore iniportid into the contract by which the members of such companies im mutually l)ound (//) ; and where it was proved to be the piacticc of a cost-book comj^any to allow shareholders to retire n\Hn[ any terms agreed upon at general meetings, it was held thtit ii shareholder who had been allowed at a general meeting to surrender his shares without paying the arrears of calls upon them, had ceased to be a shareholder (c). The siu'render must be by notice in writing to the purser (/), and must be dcdiveied at least six weeks before a resolution is passed or an ordir made to wind uj) the company (g). The usual terms on which a member is entitled to retire from a cost-book company are, that if the company is insolvent, the retiring member pays his share of the deficiency, as if the company were being wound up, but if the company is solvent he is entitled to receive his share of the surplus left, on dedueting the liabilities from the value of the assets. In ascertaining; Usual terms o£ retirement. 'i (h) Sec Tush v. North Ilritinh Build. Soc.,U Ajjp. Ca. 489 ; IFfdton V. Edge, 10 ill. 33 ; Brownlie v. 7i'((.s-- scU, 8 ib. 235 ; Sheffield and S. York, rerm. Build. Soc, 22 Q. B. D. 470. (c) Auld V. Glasgon; dr., Build. Soc, 12 App. Ca. 197. (rf) See, as to this, infra, and Ex parte Palmer, 7 Ch. 286 ; Fcnn's case, 4 De G. M. & G. 285, and 1 Sm.&C 26 ; Bodmin United Minai, 23 Beav. 370 ; Birch's rxise, 2 De G. & J. 10; Lofthouse's case, ib. 69 ; Nonky v. Johnson, 19 L. T. 104. (e) Bodmin United Mines, 23 Bcav. 370. (/) 32 & 33 Vict. c. 19, §§21-23, (g) 50 & 51 Viet. c. 43, § 22. IN TAUTICUIiAn roMrANir.s. 525 these fimounts, the solvency or insolvency of the remaining Uk. HI- cimp. 5. slmrelmltlers hud formerly to be taken into account, and the assets valued on the footing of the company being a going fonoiTii (/')• Now, the valuation of the assets is to be made upon the basis that the continuing shareholders had also riliiKluislied their shares (/). I'ln' terms of retirement may be varied by agreement, which may be im|)lied from the; course of priu'tice in the comi)any, but such an agreement is not nearly so readily implied in the case of large companies as in the case of ordinary partnerships (/i). The Cimipanies clauses consolidation act, ISl/J, contains no Compftuies ]irovision authorising the surrender of shares. But by the (.'onipnnies clauses act, 1863 (/) (which applies to all com- jiiuiies which have a special act of Parliament incorporating tlmt act), it is enacted (§ 9) that " the company may from time to time accept, on such terms as they think fit, surrenders of liny shares which have not been fully paid up;" and (§ 10) that " the company shall not pay or refund to any shareholder any sum of money for or in rrspect of the cancellation or sur- render of any share." In KipHini v. Todd and KipUmj v. All, note ; SncU's case, 5 Ch. 22. (p) Dronjield Silkstone Goal Co., 1" Ch. D. 76, wliich, however, was disapproved, and practically over- ruled by the House of Lords in Trevor v. IVliitworth, infra. {(j) See the next two notea. (r) Trevor v. Whitworth, 12 App. Ca. 409. Dronjield iSilhtone Coal Co., 17 Ch. D. 76, contra, must k considered iis overruled. (s) Hope v. International Ftmiu- cial Society, 4 Ch. D. 327, which compare with Teasdak's can; ante, note (n). IN PAUTICIILAU COMPANIES. 527 Macnaghten is clear upon the point (t). The consequences of Bk. ill. chap. 5. this are very serious to persons selling their shares in such companies to the companies themselves, or surrendering their shares to the companies for value paid by the companies. The transaction being ultra vires, it will follow that any money paid by the company for tne shares can be recovered back ; that the directors paying it and the shareholders receiving it, will be liable for it, and that the surrender itself will be invalid unless indeed the transaction can be upheld in part, and set aside in part, which may be possible in some cases, but practically in very few. (0 See Trevor v. Whitworth, 12 App, Ca. 409, pp. 432 et seq. 528 POnFEITUBE OP SHAtlES. CHAPTER VI. OP THE FORFEITURE OF SHARES. ]'. k. ul. C lap. ■ CoMPAXiES have no power to forfeit the shares of tlieir members, or of subscribers who have not j-et become members, Right of com- p\ny to forfeit shares. unless such power is specially conferred upon them («). A clause in a company's articles enabling the directors to forfeit the shares of any member who shall take any legal proceedings against the company is invalid (h). The right to forfeit shares is frequently arrogated in cuses where a shareholder will not pay to the company what is due to it from him in respect of his shares : and it is not uucom- monly assumed that a right to forfeit in such a case is pos- sessed as a matter of course by directors. But this opinion is erroneous ; for, as already stated, a right to forfeit exists only when specially conferred ; and even a majority of shareholders cannot confer it unless empowered so to do by the company's act, charter, deed of settlement, or regulations (f). But if there is power to forfeit for non-payment of calls, that power may be extended to non-payment of additional capital whiiii may be authorised to be raised (d). (a) Hart v. Clarke, 6 De G. M. & G. 232, and « H. L. C. «33 ; Nor- vuin V. Mitchell, 5 Ue G. M. & G. C48 ; Barton's casi; 4 Drew. 535, and 4 De G. & J. 46. As to com- panies partly English and piartly foreign, see Stidloio v. Dutch lihenish Rail. Co., 21 Beav. 43. As to the right of corporations to disenfran- chise and expel members for reason- able cause, see Osgood v. Nelson, L. R. 5 H. L. 636 ; Grant on Gor- porations, •H)2-2Gd. As to exjjul- siou from a club, see }{o]il;in.wn v. Marquit of Exeter, 5 £([. 63 ; Fisher v. Keane, 11 Ch. D. 353 ; Labmckn v. Earl of miarndiffe, 13 Ch. D. 346 ; Daickins v. Antrolms, 17 Ch. D. 615 ; and from a trade arnxk- tion, Strickv. Swansea Tin Plate Co., 36 Ch. D. 558 ; Eigby v. Connol, 14 Ch. D. 482. (ft) Ho^K V. International Finan- cial Society, 4 Ch. D. 327. (c) Barton's case, 4 Drew. 53'), aftirmed on appeal, 4 De G. & .1. 40. As to the Companies act, 18fi2, see infra. "(-/) SiicKelk'scase,9 Ivi- 107. IN COMr.VXIES GOVEUXED UY 8 liic 9 VICT. C. IG. 529 By the Stannaries act, 18GJ), shares in cost-book mining Bk. III. Cliap. 6. uompanies can be forfeited for non-payment of calls («)• Forfeiture of ,,.,.' • i> /i\ shares in cost- The only other general legisuitive enactment now nx lorce {0), book companies, which exi)ressly confers on companies the power of forfeiting Statutes autlio- . • , 1 rising forfeiture llie shares of their members, is the Companies clauses con- of sliares. M)Hilation act. The Companies act of 1862 does not itself loatain any provisions on this subject, but the Table A. to that act does, as will be seen presently (c). As h) coiupdnies (jDVcnwd hi; the ('Dinpnu'wH chmscfi co^iaoJida- F.nfoitiire of (m tict, it is provided by 8 & 9 Vict. c. IG, §§ 29-35, tluit if junioH governed imv shareliolder fail to pay any call payable by him, the directors, ^' jY "^ "^'' at any time after the expiration of two months from the day iippointed for the payment of a call, may declare the share in wi\)i'd of whicli such call was payable forfeited, whether the rail has been sued for or not. But before declaring any share fnifeitcd, tlie directors must give notice of their intention to do so, twenty-one days at least before making a declaration of loi'feiture. After a share has been declared forfeited, it may be sohl for payment of the calls in arrear ; but before it is so ^illll, the declaration of its forfeiture must be confirmed, and its sale must be ordered at a general meeting held not sooner than two months after the day on which notice of intention to forfeit was given. If the money arising from the sale of a i iifeited share is more than suflicient to pay the arrears of > :"s with interest, and the expenses of sale, the surplus is to be i)aid to the defaulting shareholder ; and if before a share i> sold he pays what is due upon it and also the expenses, if iinv, incurred for the purpose of selling it, then he is entitled -i) 32 & 33 Vict. c. li), § IG. See, Wlnre tliis act, Hurt v. Clarice, 5 De ';. M. & (;. 232, and G II. L. C. {''l The 7 & 8 Vict. c. 113, § 37, riovidf,: " forfeiture, but the 7 & >\ict. c. 1. 'lid not. Companies pivemetl liy thw last act usually i"w>e(l the rij^'ht of forfeiting,' sliares umler their deed of .settle- •ueiit, A clarise in tlie deed tliat Lit; sii.ui's of ^subscribers who would '■' fXn-ute it Miight be forfeited, I..C, was valid ; Stewart v. Amjlo-Cali- fornian Co., 18 Q. ji. 730 ; Beres- ford's case, 2 Mac. & O. 197, and 3 l)e G. & S. 175 ; Iniib/n case, 15 Jiu. 29 ; but if there was no such clause, no forfeiture could be etl'eeted ; Barton's cns(', 4 Drew. 535, and on appeal, 4 De G. v*t .1. 4G. (-•) The acts of 185G-58 also left the subject of forfeiture to be dealt with by the regulations of each company. M M -3=P~'"^P<^ 53U I''OlirKITUI!K OK SlIAliKS. Forfeiting and suing for calls. Cancellation of foifcitcil siiares, Bk. III. Chap.j!. ^q Imve the share restored to liiiu. The act in question expressly declares that shares nia}- be forfeited for lum-pav- ment of calls, whether those calls have been sued for or not. The right to forfeit and the right to sue may conse([iuutlv both be exercised together : the remedies are cumulative, iiut alternative {d). If the company has a special act also incorporatiiig tin Companies' clauses act, 1863, the shares when forfeited iimy be cancelled if they cannot be sold (e). But this can only be done by a general meeting, held at least two months aftd' notice of the forfeiture (/), and the shares may be recletmol by payment of what is due in respect of them before tlicy liiivi' been cancelled (&. 27 Vict. c. 118, § 4. (/) Ibid. (,'/) lb. § 7. (/i) lb. § G. (i) lb. § 7. {k) lb. § 8. (0 111- § 10. (m) lb. § 11. ()i) See Teasdak'f fflsf, 9 Ch. Jl and Kdk's case. and 7V(/i/i')i'.< ('«*,; E(|. 107. ((/) See ][op) V. Iiiliriittliiirad F: iiuucial Socidy, 4 Ch. 1). 'i-n- •mum. '3 »? I'llOVlSlONS OF TABLE A. i31 the regulations of this tabic, it is necessaiy, first to serve the Bk^lll. Cha].. (;. dfiiiultiug member, personally or by post (see Nos. 95 — 97), with u notice (So. 17) ; antl secondly, to pass a rcsolntion of the tlirectors forfeiting his shares (No. 19). The notice must 1. Require the defaulting niember to pay the call in arrear, with interest and any expenses that may have accrued by reason of its non-payment (No, 17) (_;)) ; 2. Name a further day on or before which the unpaid calls with the interest and expenses are to be paid (No. IH) ; 3. State the place where the payment is to be made, such [ilace being either the company's registered office or some iitlier place at which the calls are usually made payable, c.//., at the company's bankers (No. 18) ; i. State that, in the event of non-payment at or before the time and at the place appointed, the shares in respect of which the call was made will be liable to be forfeited (No. 18). If the requisitions of this notice are not complied with, the shares in respect of which it was given, may be forfeited, by a resolution of the directors, at any time before payment of what is due in respect of such shares (No. 19). Any meniljcr whose shares have been forfeited is liable to pay all culls due upon them at the time of their forfeitui'e (Xo. 21). Forfeited shares are the property of the company, and may Fnfoited sliares. lio disposed of as the members at a general meeting think ht iXo. 20). In order to enable such shares to be reissued, and to protect a purchaser from the risk of hsiving his title defeated by some i!Tei •, ' f ihe other shareholders. A court will not sanction or recognise as valid a forfeiture made mala Jide i'or any siuli purpose. The invRiMirv o*" a forfeiture made for the purpose of enahling a shareholder to retire when he is not entitled so to do, is well shown hy the decision in Ilichmond's msr, and Painlcr's case (ii). There a director of a company jiroposeil that he and his co-directors should take a muubiT of shaiv< its trustees for the compaii}', and he signed the deed i'ov "2000 shares, and he was registered as the owner thereof. Xone ul the other directors, however, folhnved his e\ain]de. .Miimt Forfeiture to < ii:il)lo a .■'liare- l.olil'-'r t(i retire. jdLfiu f ■ ^^^M^-^ ra^F '''^ wHI ^ I^HB' "^ HB':.'!' H^F '-'^'" (■/) See, as to the insulliiifiK y ol' nolicos, &c., Julinxdit v. Lijlllt.'i Irun Aijenri), 5 Cli. 1). G87 ; ll''al^on v. Y:,'-/ /,'.■,■, 23 Beav. 294 ; Vau Diaaen'.'^ Land Co. v. CockercU, 1 C. 15. N. S. 732, aflirniinj^ Voclerdl v. Van Die- '/,(.»'..■ Land Co., 18 C. B. 4.-)4 ; Ldin- hnnjh, Liith, dr., L'ail. Co. v. Hi'hhh- vMtc, 6 M. & W. 7o7 ; London and Lriijhton Rail. Co. v. Falirloiiijli, 2 Jlau. & (Jr. ()74. Conij)are Crahain x. Van Dicmen's Land Co.,1 H.& N.541. (r) Gardni aulIij.dr.fio.v.M'Listcr, 1 App. Ca. 39, wliiire the appoint- iiieut of the directoi-a was invalid. (.x) notto,nlni'.i cas<; IG CMi. I). G81, wla-it} the minilier of directors wa.s hisiiffieient. Compare LystLr" caii\ ■I Ei(. 2;53, infi-a, notr (k). (0 j;ii.-", K-^parto Tradiiiii Co., 12 Cli. 1). M: JlaWa (■■/sc, 5 C'li. 707 ; Cuinr's I'd.-'-, 6 luj. 77 ; Sparbnan v. LraiK, I.. 11. 3 H. L. 171 ; Stanhop,'\i cw, 1 Cli. Kil ; I'lioiiphatf of Lime Co. v. iirun, L. 1!. 7 C. P. 43 ; Harm v, Sodl Jlevon Hail. Co., 20 lliviv. ^>i\ rimton V. Grand < 'oilier Duel: Co., 11 Sim. 327. ['C, sllllll Coll- )C etVoctuully {q) ; it must tors properly ini (s), iuid in iglit must \n: 'as coiiffrroil. wliifh will be for oxiimpk', f expelling' a 36 of assistiiifi e coiiipiiny, in jt sanction or for any sudi e purpose of entitled so to ((T.s case, and puny iiroposeil WHAT AMOUNTS To A I'OUFElTTJRi;. 5;}3 vv of share- ed for 2000 •iH)f. None of ini)lo. About ■ {„). liares had not been /w/(<(y?(/(! forfeited for the benefit of the company, and that the forfeiture was therefore invalid. Clauses in deeds of settlement, &c., which declare that ou '^Viiat ammmis non-payment of calls, &c., shares shall become absolutely for- feited, do not enable .shareholders to get rid of their shares liy refusing to i)ay their calls. Such clauses are inserted for the benefit of the company, and there is no f(U'feiture until a forfeiture is declared (.c). Moreover, a declared intention to forfeit not carried into etfeet (//), or not duly confirmed, is no forfeiture at all (-r). Still, if there is power to forfeit, and a declared intention to forfeit, and the shares intended to be forfeited are treated by ihe eonipany and the shareholder as forfeited, the company will bo precluded from afterward.s insisting that no forfeiture iver took place {i fovk'itnvc oi shares ■\vaa set aside on the ground that the directors who were bound to credit the shai'eholder with the utmost value of tlie shares, had credited liiin with a value set uiion them by themselves, and which value was less ilmii the current market price of shares in the company at the time the forfeiture was declared. In this case the shares were ;i security for money owing by their owner to the company, and won! forfeited for non-payment of that money. It may further be observed, that although a court will not relieve a person Avliose shares have been duly forfeited (n), it will interfere to prevent a forfeiture pending a dispute between 11 company and a shareholder upon payment by him into court of what may be due from him in respect of the shares intended to be forfeited {<>), and will take care that the shareholder has credit for whatever the shares may or, if properly sold, might have fetched (^)). The effect of acquiescence in a forfeiture, and of delaj' in seeking rehef, will be examined hereafter. See Chap. IX., IH'I)- (i,i) 1 Y. & C. C. C. 81. {2)) See Sluhhs v. Lister, 1 Y. & (ii) i whilst they form part of his estate. 2. The assets of the deceased are liable to make good wluit- ever is at the time of his decease payable by liiiii to tin company; and also whatever afterwards becomes payable bv his representatives by virtue of the contract into which ho entered. Consequently, if a person becomes a shareholder in a conipanv and then dies, and afterwards, and whilst his shares are part ul his estate, a call is made by the company on its shareholders, LDER AS DF.TWF.EN THE rOMPANY ANP TIIF, SIIAUF.nOLPFU S EXFCHTOHS. 587 OLDKU. if a compiiiiy •ouvse of nil il of the uxo- 1(1 'atces of till ^IPANY AND his nssots will bo liable to tlio paynionf of such call ((()• ^forc- ^^- IJI- cimp- "• nCCli 1 * over ti iiiU, madi' by a company in inu'snanco of its act, clini'ti'i', or (Iced of settlement, constitutes a specialty debt (h) ; iiiul idl (mUs made under the winding-up provisions of the Coiiiiniiiies act, 1H()2, are also si)ecialty debts {<■). But specialty debts are no lon. Ca. .549, .'JS.3, wliore llie executors were on the vcgi.-^ter. (0 2.5 & 26 Vict, i: SO, § 21, aii.l see Table A., Nu.-. 12 i(i. Tlic Talde B. to the ( 'oniiianie.'^ ail, 1856, contained .similar jirovi.sii>ii>. (m) 8 & i) Vict. c. 10, §§ 18, 19, 20. (;/) Compare §§ 3, 14, 18. (o) See ace. Tliirs rase, 20 Ei|. 595, where the survivor aloiic w.i- put on the list of coiitributinii''!- (I'u. whetbei- tlie executors can lie put oil us ]iast meud)er.-. AS UKUAiius 'nil; ctti.nn'oiisf oi iiii: ((impaw. 539 vhiii iiroi'i'i'ty. tlio 0(|iiital)l(! interest of the deceased will not '•'■• ",';* ''.;'• >ui'vivt; l)iit if the holders iin^ not i)urtners, the question of Suet. m'\ vivoi'sliip oi" non-survivni'shii) will depend upon tiiose [nm th es ciiilt'S which wouhl he jipplicidde under siniihir eireunistiuu toother property'; and the fact that the ref,'ulations of tho (diiipMnv eontain a clause to the etfect tliftt no benefit of sur- vivorship shall take place amongst the shareholders will he of litlle, if any, consociucnec. For example : shares puiehnsed liv A., in the names of himself and H., j'riiiK'i J'nric heloni,' in ■iiuiti to A. ; hut if A. dies before B., t) ' I, 'gal interest in them (li volves v\\ 1). ; and if the evidence rebuts tho presumption \\\\u:\i ]>riiii('( fncic exists in A.'s favour, B. will be entitled to the shares both at law and in ecjuity, although the company's (1('((1 limy contain such a clause as that just mentioned (j)). If, however, 1>. is only a trustee for A., and A. dies, and then I), (lies, and the company is wound up, B.'s executor will be liiililc to be put uptm the list of coiitrihutories, and he will be ( ntitlcd lo indemnity out of A.'s estate, and to sue ior such iiitlciuiiity before being actually settled on the list (7). SECTION II.-CONSEQUEXCKS OF DEATH AS llEGAKDS THE CREDITORS OF THE COMPANY. With respect to the right of a creditor of a company to Liability of proceed against the executors of a deceased shareholder, si |;y!i'!^t?l'ishvrc' distinction must be taken between unincorporated and incor- l"5ltlc"'- lioruted companies ; for whilst the assets of a deceased share- holder in an unincorporated ccmipany are prima facie liable in ii,uity (although not at law) to the debts of the company con- nected before his decease (/')> the assets of a deceased member iiti; body corporate are, primd facie, not liable to the payment "i'tlio debts thereof either at law or in equity. But as regards botli classes of companies, the position of executors in fact (;)) Qanick v. Taylor, 4 De G. F. (7) Hobhs v. Wcujct, 30 Cli. D. .V J, 159, ullirmiii.i^ S. C. 2!) I'.wiv. 250. " '• (r) See Partn., UQA ct seq. 540 TUB EFFECT OP THE ])EATII OF A SIIAUHIIOI.DEU i^ i Ml Bk. III. Chap. 7. depends less on general principles than on particular statutes, Sect. 3. the provisions of which must therefore not be overlooked. Thus, although banking companies governed by 7 Geo. 4, c. 4f), are not corporate bodies, and although creditors of such com- panies are, it seems, entitled to obtain paj'ment of their debts out of the assets of a deceased shareholder, still the creditors' riglits are so far modified by the acts in question, that, wlietlior they ai'e creditors by specialty or by simple curt-act, the lapse of three years after the death of a shareholder bars their claims against his executors (.s) ; and even within that period the executors are only liable to pay such debts as the surviving' shareholders are unable to discliarge (0' Several cases are also to be found in which executors, not being themselves shareholders, have been held not liable to creditors (//). Similur observations apply to actions for calls. The liability of executors to be proceeded against by nci.fn. or its modern substitute has been already noticed (Book 11., c. 7, § 3) : their liabilities as contributories will be referred to hereafter in Book IV., c. 1, § 10. Legacies nt sliarcs in com- panics. SECTION III.— AS RE(fAUDS THE l^^EPARATl-; CREDITOKS AND LKUATKES OF THE DECEASED. Shares in companies are pi'operty for all purposes of ad- ministration. They are assets for the paymenc of did)ts ; they can be disposed of by will ; and if not disposed of they must be dealt with like other personal estate, and be distril)uted amongst the statutory next-of-kin of their deceased owner. (.s) Sec Barker v. ButtrcM, 7 Beav. 134. (') Ilcward V. Whmtk]!, Ex pm-te JViho)}, 5 Do G. & S. .052. Com- pare AV IFulton'.t Hstah', 23 T.cav. 480. ((() Xi'Sis V. ArniHtronri, 4 Ex. 21, wlieve the cxccutdr.s had ren'iveil dividends ; Pavis v. Jlittlcr, 3 C. B. N. S. 645, and 4 ib. 4G9, wliere the decease(l'.s name w.v; kept mi the ref;ister of sliarchulders ; /V«.;. V. Kiioft, 7 W. i{. 527, where the- deceased had died before tliecreilitm' had obtained jud^'ment iXi^a'mA the company. Tin' doubt exprc-st'd in liid-dts V. lliurlwy, 3 V. I!. 88'.), is removed l)y tlie decision in -Vi« v. Armstrowj, 4 Ex. 21 ; ami tlie ca.se of Ness v. Bertram, 4 Ex. 101, EU V statutes, vcrlooked. !0. 4, c. dfi, such com- ,heir debts 3 creditors' at, wlietlior ;, the lapse bars theh that period le surviving il cases are themselves //). Similar :it by at'i.f'i- 1 (Book II.. 2 referred to AS KEGAKDS HIS SEl'AKATE CREDITORS AND LEGATEES. 541 tNO li;';atf.f.s lioses of ad- debts; they )f they mu'^t distributoil lased owner. llidia.'rs; /'->"'' ]2T, wlioiv til'! ■,,ri'tln'ivcilit"i' lilt ly.iin^t tlio |)t cxprc'seJ in :j V. V,. 8S:i, lecisioii in -^<" 21 ; 'lU'^ ''"^ Ian, 4 Ex. 191, They are legal and not equitable assets (.r) ; they pass under a ^^- 1'^- ^'''.f*!'- "• bequest of personal estate (;/) ; and if the certificates are kept — ftt a bank the shares will pass under a bequest of property at tliJit bank (.r). Sliares, however, will not ordinarily pass under a bequest of moneys, l)onds, or securities (n). But under special circuni- stiuices they will pass even under a bequest of money, as in Kni), where share certificates were in an en- velope in(U)rsed "to be considered as nionej' and given to A.B." A bequest of shares will ordinarily pass stock (c), but not ilcbentures {d). Where a person entitled to various kinds of shares in a coni- piniy beipieaths some of them without saying which in par- tiiular, the legatee can select which he pleases (c). A legacy of shares in a company is not necessarily adeemed AJemiition. by the conversion of such shares into stock (/), or into ainuiities (g) ; nor by the amalgamation of that conijiany with another (//). But a bequest of sliares in an unincorporated hanking conqiany governed by 7 Geo. 4, c. 4G, was lield to fail by reason of the subsequent registration of the company witli limited liability, and with an altered csiiutal differently divided (/). A legatee of shares may, of course, decline to accejit them, and lie may do so although he accei)ts other property under the same will (/.) ; unless there is only one gift, in which case he unist accept or decline the whole (/). tiiriu'd i-iilircly im a jioiiit (jf plead- ini;. (') Ctiiik V. GrajsoH, 3 Ihvw: 547. (;/) Cadimtn v. Cmhiiaii, lU E([. 4"n, canal sbaros. ('.) Iksiiitjc V. lli-arr, 37 L'li. D. M. ('() HiiiUenIti}! V. (Iiinhlnhiu-ij, In iVav. ,')47 ; Oijk v. Vuii'y/i, 8 1-:<|. i:)4 ; Co//i»ix V. Vullin^, \-l TS.i[. Ahb. (>)) 2 Giir. GKi. ('•) Mnrrive v. Aijlma; 10 Cli. 148, :ai(l L. «. 7 II. L. 717 ; Tiimkr v. Triudcr, 1 ]v(. «<)5. ((') irdhn v. A dins, 17 L. IJ. Ir. (■) M:ih,,;ly. l;.,:h;i. 1 iv|. ;)7S. (/) 0.(/.« v. Oahs, 9 Ha. fifJG. See oil tliis case the eahcs in note ('■) ; and t'oinpare /'c Gih.nm, 2 Ecj. (J!i9 ; Re Lanr, 14 L'li. ]). 8JG, a ca^e of debentures. (;/) HiDiisiloii V. IVinhr, 1 Aiiili. 57 ; l'tiiti-i(lii>: v. Pcutriihji , ',) Mud. 2(1!) : L'as. t. Tab 22G. (A) See rinllij,s v. Tiinnr, 17 lUiiv. 1!)4. ((■) Dresner v. Gra!i,:](> C'li. I). 205. N.l). Tilt' bead-note niisdescribes tlie eolupany (/.) Long V. Kent, U X. U. .'554. (/) See Guthrie v. Walroml, 22 Cli. D. 573, and tlie eases there cited. 542 Bk. III. Chap. 7. Sect. 3. Absolute legacies. Legacies for life. THE EFFECT OF THE DEATH OF A SHAItElIoLltFJ; AVhcro a sliavo in a compaii}- is bequeathed to a person iib- solutely, the executors shoukl transfer it to the legatee as soon as possible, in order that the liability of the testator's estate iu respect of it may be put an end to (/»). If the legatee is riot sui Juris, and the share camiot be transferred into his iianu', the position of the executors becomes embarrassing. If, ho^v- ever, ihey do nothing with the share, but simply akc the dividends as executors, they Avill not render themselves pt r- sonally liable to creditors (n) ; nor will they be liable to h: made contributories, otherwise than in their representativi' capacity (o). But it may happen that, unless the executors transfer the shares into the names of themselves or s(jnie oilur persons, the shares will become forfeitable ; and in that casu (the legatee of the share being still supposed to be not sui jum) the executors should, for their own protection, apply for the direction of the Court. "Where shares are bequeathed to one person for life uiili remainder to another, they ought nevertheless to be sold unless it is clearly the testator's intention that they shall Ik retained in S2)ccic (_/>). If they ai'e intended to be enjoyed in specie, the position of the executors again becomes embarrass- ing : for if they transfer the shares into the name of the tenant for life, there is nothing to prevent him from selling them fur his own use ; and in case of a sale of the shares by him, the remainderman would naturally seek to make the executoiN responsible for their loss. If, on the other hand, the exeeutois procure the shares to be ti'ansferred into their own names a> trustees for the legatees, a personal liability in respect of tlir shares will be incurred by the executors, and that liability will not be limited by the amount of tlie assets of the testator. Unless, therefore, the executors can retain the shares without transferring them, they should, for their own safety, apply fi the direction of the Court. {in) Sue Ki'cnu's Extcnlorii' case, 3 De G. M. & G. 272. (n) iW.s's V. Armstrotui, 4 Ex. 21. (o) This auhject will be tidvericd to hereafter when tivatiiig of Con- tributories, Ilk. iv., c. 1, § 10. (p) See nianii v. 11,11, 2 W (I M. & G. 775 ; Tliomton v. /■;/,• ■, 15 IJoav. 1!):5 ; Vnmv v. 'V/.n'w , 17 ib. 507 ; ll'ijhlwich v. Lod, d H. L. C. 217. AS nEGARPS HIS SK.l'AIlATE CREDITOIIS AND IwEGATEES. 648 Whero slmres tivo. bi'quoatlicd to one person for life, with ''''^- 1"^- Cliap. 7. Sect. 3. Probate duty. loniaiiulcr to nnotlier, nnd are transfeiTecl into the name of the toniuit i'ur life, tlioy will, on his death, be transferable into the name of the remainderman without further payment of probate dutv(7). Such shares, in fact, form no part of the tenant for life's estate, and are covered by the dut}' payable in respect of the estate of the original testator. Wliere sliares are bequeathed, not specifically, to one person Income licfore lor life, and after his death to another, the money yielded by "'' tlieni before sale will not necessarily belon;^; to the tenant for life ; for, according to the case of Dimes v. ScoH (r), the tenant Dimes v. Scou. for life is only entitled to the income which would have beeii obtained if the shares had been sold and the produce invested in consols, at the end of a year from the testator's death : the income thus ascertained being, however, paid from the date of tlie death. This rule applies where the testator's residuary estate consists of shares when he dies. But it has been held that the rule does not apply where the executors themselves malie an unauthorised invcistment ; and that in such a case the tenant for life is entitled ti) the income actually yielded b}' the investment, and the remainderman is not entitled to more than II restoration of the original capital {s). When the legacy is specific, the rule in I>inu'fi v. Scott does not apply, the legatee taking whatever the shares may yield (/). So wliero the shares, although not specifically bequeathed, are directed by the will not to be sold for a certain time, what they yield during that time will belong to the tenant for hfe(/(). It appears to be now settled, that when shares are specifi- Payment of (■ally becpieathed, and the will contains no special directions to '^'^ '^' the contrary, all calls made upon the shares in the testator's hfetinie must be borne by his general personal estate ; whilst all those made after his death must be borne by the legatee iq) Henndl v. Strong, 25 L. J. Cli. •107. ((■) 4 Russ. litu, iinil .si'u Fiunin v. yoimj, 9 Ves. 549. W SeeN//',;»,/ V. Iliriin; 28 P.eav. 13U. it) Infra. («) See Grcm v. Ihitkn, 1 Dc O. J. & Siu. G49. Where tlie side is jiostpoued liy the Court i', see Lambert v. i ■'J i ■ •i (I n 54-1 THF. UlTliCT 01' THE DEATH 01' A ailAIlEHOLDl.U Imleninitv fiiiul tj meet culls. ^^- ^J'- ^'ifP- 7- taking the shares (a). There are, indeed, cases which shuw tliut Sect. 3. • — calls made after the testator's death are payahle out of Ins general estate, and not by the specific legatee (y) ; but tliestj cases are not to be relied upon, except where the payment of the calls wotdd have been a ccjndition precedent to the comple- tion of the testator's own title to the shares if he himself had lived {.z), and the calls are made before the specific legatee is, by the terms of the will, to have the shares {ay v. Dai/, 1 Dr. & Sm. 2G1, where all the previous cases iire reviewed. See also, Ilevuu \. IFuterhonse, 3 Cli. D. 752, us to a direction to pay calls out of income ami not out of capital. (;/) Jllninit v. ]fi)ikins, 7 Sim. 51 ; L'livc V. Ciive, Kay, 600 ; Jcwiitfn v. Chambers, 4 Ea. Ca. 499, correcting S. C, 2 Coll. 4.35 ; IFrlgJit v. Jl'ar- ren, 4 De G. & S. 307. (;.) As to this qualification, .see Ariiistnmij v. Ilnrmt, 20 Beav. 424 ; Aililains V. Ferid; 2(5 ib. 384 : and Jkiij V. iJitij, uhl supra. (,() /.V hoy, 1 lleni. & M. 522, wluro the lest:itor"s residuary estate, inLduilin;^ tlie sluires, was bequeathed to A. fur life, and al'ler his death the shares were siiecifioally lio- (jueathed to B., and the calls were made in A.'s lifetime. (/') Jacipii'ti V. Cliamlnrs, I Ka. (.'a, 499. (r) Wentu-orfh v. Chivrll, .3 Jui', N. S. 805. See, too, 7iV(((/ v. Bhmf, 5 Sim. 567, and compare Atkiiifmt V. Oreij, 1 Sm. & G. 577. See antr, p. 537. (./) See Jhuilop V. Diniln,!, 21 Cli. D. 583, noticed ante, p. 457. (c) Jacques v. C%amberti, 2 Coll. 435 ; Wriijht v. Warren, 4 De (!. & S. 367 ; Brumie v. Coll'uu, 12 l'li|. 586 ; IbbotsoH v. Flam, 1 Eq. 188. (/) liron-ne v. Collins, 12 Va^ 5si;. J!ut see Hibottion v. Klitm, 1 Ko. iss. r.K AS RKGAHDS HIS SEl'AUATL CltEDITORS AND LEGATKKS. 54; show tliiit )Ut (if Ills l)Ul tUesu ayinenl of le comple- >mself had legatee is, culls upon ate, a fiiiul ecific h'^'ii- iiisufhrifut 'utuvt! calls lie contract [general lit'ii, I mortgaged lit off of the tith'il to all ath [c) ; un- tamed and ividends de- in'cifioidly lie- ihu c;\lls were \hu:-<, 4 lla. (.'i. p/inW/, 3 .Tur, \inul V. Blunt, Ipave Atkiniiiiit [11. See ni'ir, ),inlop, :il <-'!'■ 457. Lt.'i>s 2 C(.ii. ]r,i, 4 Ue ('.. & 1 Eq. 18S. I, V, A'l'iOH, 1 dared before a testator's death (, in wiiicli the ])iiymeiit8 wuiv Wl to l>o iiiconio, with 11. Slnibr l.v. V. Wilson, 6 Cli. 50;5 ; llarton's truM, 5 Kcp 2:58 ; JFanl V. Combe, 7 Sim. 634 ; l^itts v. Steere, 13 Vos. 303 ; Paris v. I'aris, 10 Ves. 185 ; and Ilrander v. Brandcr, 4 Ves. 800, in which the payniuuts were ludd to be capital. See, also, Cuming v. Bostrrll, 2 Jur. N. S. 1005, where the House of Lords liehl, that upon the true construction oi' a Scotch deed, bonu.ses bt'longc(l to aninlanl's estate, and not to the iiersmi who, on bis (luatli under 21, beiaiiie en- titled to the stocks wbich yiehled them. (ill) \-2 App. ('a. ;]<), ri-vi-isiiig S. ( '. -lU L'h. ]J. t);!5. {n) [rriinj v. Honsluun, 4 Patou 640 TlIK KFFKCT OF THE DKATJI OF A .SlIAREIIOLUKl!. Bk. III. Chap. 7. Sect, !i. Araclaron v. Staiuton. Loss of inpomc by tenant foi' life. Api)ortionmcnt of interest and iliviilcnds. 2. If a company can lawfully increase its capital, and it dons so by capitalising and distributing its accumulated profits, tluii wliat is distributed in respect of sliares lield for life must be treated as capital, whether what is distributed is cash or now shares (o). 3. If a company having power to treat accumulated profits as an increase of capital, or otherwise, divides accumulated profits amongst its shareholders as i^rofits (or without capital- ising them or treating them as capital) what is distributed in respect of shai'os held for life will belong to the tenant fur life as income ( j)). It had been previously decided that if a company having power to increase its capital chooses not to divide its profits as income, but to capitalise them, the sum pnyal)le to a legatee of shares for life must be treated by liini as capital (q). On the other hand, if, as in Mudaren v. Staiuton (;■) a bonus arising from money paid to a company under a comproniise with one of its own shareholders is divided as income, the sum payable will belong to a specific legatee of shares and not to the residuary legatee, and to a legatee of shares for life and not to the remainderman. Where part of the profits accruing during the life of the tenant for life are capitalised by the company, he lias no lislit to have the loss of income, which he thereby sustains, made good by the remainderman (s). Interest on a debt accrues de die in diem, and is apportion- able at common law ; and profits and dividends, iiieluding bonuses {t), are now apportionable under the act 33 & 81 Vict. c. 35, which applies to all cases arising between a tenant ior life and remainderman after the act came into openition, Sc. App. f)21, a former decision of the House of Lords, and one wliicli lias often been felt to create a dilli- culty. (o) This was the point decided in Bonch y. Sproule. (jj) This point did not arise in Bouch V. Uproule, but is warranted by it. (7) Barton's fmxt, 5 E(i. 238, Sec, also, Strnhr v. IVilson, C Ch. 503. ()•) 3 Do a. F. & J. 202, revoioing 27 Beav. 4Gl). (s) See Stroud v. Gwyer, 28 Bca\'. 130. (0 Carr v. Griffith, 12 Cli. D, C55. I'.U. AS KEGAIIDS HIS SKPAUATE CKKDITOUS AND LEGATEES. n-iT n(\ it, docs ofits, tlicii 'e must be isli or now ted profits 2cumnlatcd out capitiil- distributed ) tonaiit fur )tiny having divide its lum payable l)y liiiu as It (/•) a bonus comproinisi' rnie, the sum IS and not tu for hfe anil life of the las no right istains, made is apportion- s, including }3 .V B 1 Vict, a tenant tov operation, r)E.i. 238. See, n, C. Ch. 503. |l. -202, reversing hwyer, 28 Beav. \th, 12 Ch. 1^- althouTh the will under which the parties ohilni came into I'-l^- I'J' <'ii''i'- "• operation hefore that time («). If, therefore, a testator he- queaths debentures to one person ^for life, and afterwards to another, and dies shortly before the current interest on the debentures is payable, so much only of that mterest as accrued after the death of the testator will belong to the tenant for life (x). And it is apprehended that now if there is a specific bequest of shares in a company, and the testator dies a few (lays before a dividend upon them is declared, there will bo a similar apportionment of the dividend (y). Other circumstances being the same, the price of shares in dividend-paying companies naturally rises as a dividend day approaches ; in fact, the price includes a proportionate part of the accruing dividend ; nevertheless, as between a tenant for life and a remainderman the price realised by a sale of shares is all treated as corpus, v.ithout reference to the time when a sale is made {z) ; and it is conceived that the statute 33 & 31 Vict. c. 35, has not altered the law in this respect. Where shares are bequeathed to executors upon trust for Liaiiility of . , 1 , oxociitnis fur sale as soon as conveniently may be alter the testator s death, n.ii sfiiin^' they should sell them within a year after his death : and in a ^ '"''"'• case where they were kept unsold for many years and the company was ultimately wound up, the estate of a deceased executor who survived the testator only thirteen months was held hable for the loss sustained by not having sold them widiin the year {a). Where, however, the executors honestly (h) Lawrence v. Lawrence, 26 Ch. D. 795. (,t) Sue Rogers Trusts, 1 Dr. & Sin. 338. (y) Can- v. Griffiths, uhi sup. ; Pol- lock V. Pollod; 18 E(i. 329, correcting IVhitchml v. Whitchmd, l(i Ec^. 52rt. \xi Jones V. Uglc, 14 E(i. 419,aiHrnicd on appeal, 8 Ch. 192, tliere wu.s no apportioiiiiifnt, but there not only tile .sliMv.s but tlie dividends on them Were specilically benucalliud. t'omparc Re Clarke, 18 Cli. 1). Kit). ^I'e, befure the act, Mcutcdl's Trusts, 1 Hem. & il. CIO ; Bates v. Mac- l^'nhj, 31 Beav. 280 ; Clke v. Clin; Kay, 600 ; Hartley v. Alloi, 4 Jur. N. S. 500. (;:) Seholejield v. Redferii, 2 Dr. & Sni. 182. See, also, Frcman v. indtbrcad, 1 E(i. 266. ((() (Iraiihurn v. Clarkson, 3 Ch. 605 ; Sculthorjjc v. Tipper, 13 E([. 232. See, also, The Heirs Hiddhujh V. Da Villiers Dcnyssen, 12 A]ii). Ca. 624, an appeal t'roin the Cape, wliere uxeeutors who had delayed the eon- version of shares were held luible for Lheir value ascertained at a rea- sonable time after the death of the testator, which in that case was (i.xed at six months. N N 2 m 'm ^2 548 THE EFI"KCT OF THK DKATH OF A SIIAREHOLDKn. Hk. III. Chap. 7. in the exercise of their own judgment postpone the sale for n Sect. 3- , . , , 1 Ml short time longer than ii year, they will not he conipelkil to make good h)ss arising from the postponement (/>) ; and if n testator gives his executors an ahsolute din'ri'tion to jiostpoiic' the sal(! and conversion they will not, in the ahsenec of mahi Jidcs, he held liahle for any loss sustained by iion-couvf rsimi even of shares in an unlimited company (c). (h) Marsden v. Kent, 5 Ch. D. 598. (c) Re Norrhujton, 1.3 Cli. D. 054. liANKUUl'TCy Ol' A SUAKElloLOEl;. 549 CHAPTER VIII. 0? THE KFFECT OF THE BANKRUPTCY OF A SHAREHOLDER. Tin: law of bankruptcy so far as it relates to partners will P>k. III. Chap. 8. be found in the volume on partnership. So much of it as relates to shareholders and is peculiar to them is alone referred to in the present treatise. Every shareholder who is siii jxris, whether a trader or not, Married ' , ' . 1 1 T women. IS liable to become bankrupt {(i). A married woman Jioldnig sliares for her separate use can lunvever only become bankrupt if she carries on a trade separately from her husband, and she is only subject to the bankrupt laws in respect of her separate estate (//). ^Vhcther holding shares in a trading company is cumiiig on trade within the meaning of the ^Married Woman's Property act, 1882 (r), has not yet been decided. But merely holding shares in an incorporated company can hardly be cur'-ying on a trade (). The doctrine that on the bankruptcy of one member of a fh'm the whole firm is dissolved is not applicable to couipanits with transferable shares (ji). Upon the bankruptcy of a shareholder all his property, including his shares, vests first in the official receiver, and afterwards when a trustee is appointed in the trustee ((/) ; but subject to disclaimer, as will be seen presently. Shares held by the bankrupt as trustee do not pass to his trustee in baiik- (/) Bank, rules 1886, r. 258. As to the luoile of dcscribiiii,' him, see Kr parte TortiiKjfoii, !) Ch. 298. (fj) 4G & 47 Vict. c. 52, § 168, " Person." Kr parte Coliins, T>c Gex, o8l ; Ex parte Siieijd.i, I Moll. 2(!1. {h) lie L'althrop, 3 Ch. 2,')2. (0 See 2.'i >^ 26 Vict. c. 8!), §§ 75, no; Kc parte U'iuterbottoin, 18 Q. B. 1). 44G ; AV parte Hall, Mon. & (,'h. ;JG5 ; /;.(: parte Calthroii, 3 C'li. 252. L'lidertlie fdvmeracta the ollicial iaaiiaj,'er couhl not be a petitioner ; jrUliams v. Hardimj, L. R. 1 H. L. !). (/■•) II'., § 14S. {I) See il). and Bank, rule^ 188G, r. 258. The .section u.^e.s tlie word firm, and the statement in the te.xt is snppo.sL'd to l)e tlie meaning. (?r) See § 148 and rule 258 ; i,V Calikrolt, 2 M. D. & D. 308, allirm- ing J'jX parte Davidson, 1 M. ]). & D. 648. («) 46 & 47 Vict. c. 52, § G. {()) See Comp. Act, 1862, § T.'i ; Kj- parte Canwell, 4 Be (i. .1. & S. 539. See as to calls inadi' undertlie AV^nding-up acts, 1848-411, Willianis v. Hardimj, L. R. 1 H. L. !). {p) See Ex parte Broadknt, 1 .Mont. & A. 638 ; Bentleij v. Dati/, 4 V. & C. E.\. 190, as to ininiii,' partnershi2)s. (v) 46 & 47 Xkt. c. 52, §§ 43,44, 54. See as to the uhl L.w and the vesting of onerous proi)erty, Cun- land v. i-Me2)hent, 1 B. & A. 593. El'TKCT 01' llAN'KRVrTCY. 551 niptcy (/■) ; and shaves which arc in tho order and disposition I'-i^. HJ^t'|Kip.ji. of the hiinkrupt, hut in wliich other ptirsons have an interest bv way of mortgage or otherwise do not now pass to his trustee uiulci' the reputed ownership chiuso («) ; the trustee, in short, is uiily entitled to tlie interest of the bankrupt in tlie shares, and if they arc subject to a lien either in favour of tho com- pany (/), or of any third party (//), the trustee's right to the shares is subject to tlie same lien. It nuist not, however, be supposed that the effect of vesting Tr»»too not a a biinkinpt s property, includnig his shares, m his trustee, is to nitiko tlie trustee a shareholder, i.e. a member of tho comi)any ill which the shares are held (x). In order to become a sliare- liohlor tlio trustee must do whatever may be necessary by the ivL;iiIatioiis of the company to render himself a member thereof. The vesting of the bankrupt's property in the trustee entitles thu trustee, but does not oblige him, to become a member. His right to become a member can be exercised even after thu lapse of a considerable time, if nothing has been done lithcr by him or tho company depriving liim of such right (//). Speaking generally a trustee of a bankrupt shareholder may tiike one or other of the following courses, viz. : — 1. Ho may cause the shares to be transferred into his own Hcsistration in name (or do whatever else is necessary) and thereby become himself a member of the company in respect of them. The re- gulations of the company may possibly not entitle him to take this course ; but this is rarely if ever the case. A clause iinpowering directors to decline to register a transfer to a name \ht, 2 Ilii. 120, where, liowever, it was held that ii biinking coiupiiiiy Imd no lien on the shares of a 'Ustoiiier wlio liad overdrawn his acconnt. See, too, Mvliurucchi v. lional K.r. Co., 1 E(i. Ca. Ah. 1). (») Sec Ex park Ihlmm, 2 M. 1). & J). C8.j ; Ex parte Mi)s.i, 3 Dc G. & y. o'J!). (.'■) .See South Stajf'ordshin- Rail. Co. V. Jlurnsidi-, 5 Ex. 12!), and the next note. ((/) Graham v. Fnoi Dicnun'sLand Co., II Ex. 10], where five years had elap.sed. Compare Lon. and I'rivincial Td. Co., 9 E(i. (Jo3; Law- rence V. Knmvlcs, 5 Bing. N. C. 3!)!), wliere the riylit was lost. As to disclaimer, see infra. ■" m 552 DANKUUPTCY OF A SHAUEIIOLDF.n. Uk. II I. Cl"vp- 8. person disnpprovod by tliom or int luis executed a transfer to iiiiotlK i person who has such right (a) ; and even the consent of sm li person will not entitle the trustee to be registered so loii" us the transfer already executed renaains in force {b). If the trustee elects to take the shares and to be rcgistcicd in respect of them he becomes himself a shiireholder to nil intents and purposes ; and it is very seldom tiiercfon; tlint lie takes this course. Pale by tlio ^* ' '^'^ trustee may, without liimself becoming a slinrcluildt r. trustee. g^,]i ^J^. Jispose of the bankrupt's shares. A provision l> this effect is usually inserted in a company's regulations (c) ; Imt whether there is or is not such a clause in them, the Jjiiiik- ruptcy act, 1H83, authorises the trustee to take this course (r/ , Slijiros left by yo long as the shares are retained in the baidirui)t's imiin imme of bank- . i ,• , .,. riift. unsold the trustee incurs no personal liability to th(^ coiuiniuv in resi)ect of them. On the other hand, not being hiiiisclf n shareh(jlder, notices of meetings, of calls, and of forfeiture of shares, will not be sent to him but to the bankrujit. Const- (piently, if a call is made and not paid, and the company Ims power to forfeit shares for the non-payment of calls, the trustee's title may be defeated by a forfeiture of which ho Iiii> not received notice {c). So he may lose his right to tlioiu liy ;i transfer to a baud Jiih purchaser for value without notice. This was decided in a case where the assignee did nothing U^- live years. In the meantime the bankrupt died ; his widow and executrix became registered in respect of his shares, and she afterwards sold them and the purchaser was registcivil. The assignee then claimed them, but the V.-C. James If that the purchaser had acquired a good legal titi to • em (/j. (v) Bcntham Mills Spinning Co., 1] Ch. D. 900. (■() I'Jx iiartc IL.rrison, 28 C'h. Div. (/») Ibid. (d) 4G & 47 . 0-2, § no 01. :;;. (c) Graham \ '// Dicw '■ Lni'< Co., I H. &N. 5J1. (/) See London and .'.orinckl Tel. Co., 9 E(i. 653. Tliu puirliasi r ((■) The Companies act, 1862, TuLle liad at any rate the Letter titk' in A., contains such a provision ; see equity to be registered, ami btiii. art. 1-1, re.ijistered, tlie assii^nee i.'iiiild n'! DIsiC'I.AI.MRU HT TllUSTKi:. 3. 'I'lic trustee may (liscilaiiu the slmnis. 'I'he' provision in '"<• I"- ^'">i'- J*- the HiiuKi'iiptcy net, IHH!), relating to tlic diselainicr of onerous Disclairaor, propirty (litlers in many important respcets from tlioso con- ''"jl'^j'- '*''*' ^®^'^' tiiiiied ill t'liniicr acts of baiiiirnptey, and (lec'i.si. <-'a. 351. {t) Hiiliius V. Sijiiiiiii-^, 13 E'[. (id. sliow.s that this Ibrniei'lv was imt r'. PKOOF FOR CALLS. 0& estate of ono of its members, except under special circimi- ^j^- HI. Clmii. ; stances ; for to allow such a proof would be inconsistent with the general principle that a person cannot prove against his own estate in competition with his own creditors («)• "i'he application of this principle to unincorporated companies scek- ini' to prove against a bankrupt shareholder in competition witii Ills other creditors has given rise to some difficulty. The question, however, now seldom arises. It is now settled that the rule does not apjily to proofs by banking companies em- powered to sue by public ofhcers by the act 7 Geo. 4, c. 46 (.r) ; nor to proofs by liquidators of unincori)orated companies being wound up (//). The difhculty cannot arise in the case of incorporated companies ; but it may arise where the proving company is merely a large partnership not empowered to sue by a pubhc officer, and not being wound up. No case has been met with in which proof by a cost-book mining company has been discussed; but the purser can sue a member for calls, and as to them would probably be considered a public officer {:). Calls on shares made before adjudication are, and always Troof for calls. have been, provable like other debts ; and it is immaterial whether such calls are made by directors whilst a company is carrying on bushiess, or by liquidators v.'hen a company is being wound up (a). But with res2)ect to calls made afier adjudica- Old law. tion, the authorities were not a little embarrassing. Calls maile by directors after adjudication were not provable under the Bankruptcy act of 1849, it being wholly uncertain at the lime of adjudication whether they would ever be made or not ; they were consequently neither debts payable presently or at a iiiture time, nor were they debts payable on a contingency within the meaning of that act (h). Neither did the Bankruptcy :;tt of 18G1 make such calls provable {<■). The same reasons (") See Partn. 73" d seq. '^j Re Cnhhaitt, 2 M. D. & D. 'X'\ allirming i',V jwrte JJavidson, 1 ;'■. (US. (;/) Es parte Hall, 10 Cli. 48. {■■) As to the jiurser, see anti; ii'.-2(i5,427. ['i) As in Kj-parteBmni,3 Ue G. ■^ Sill. m. (h) Sotith Stitjfcmhhirc Rail. Co, v. IhiDtsidc, i}E\. 129; JFijlam's Stmm Fuel Co. v. Street, 10 ib. 84!) ; lie J. H., Ir. Eep. ;5 Eq. 245. Sue, nho, (ii'neral Dm'ount Co. v. titoJ;cs, 17 C B. N. S. 7()o. (c) See 24 &, 25 Vict. c. 1.'34, §§ 150 et sen. 55G UANKIIUI'TCY OF A S11A1{EH(.)M)KU. Comiianios act, 1802, § 7fi. ^*f 1 I I n Uk. III. Cliiti). 8. ;vcro as applicable to calls made undtT tlio Wiiuling-up acts as to other calls ; but the decisions respecting such calls wore iiDt uniform (d). The difliculties arising from the conflicu of those de(;isioiis were intended to be removed by § 75 of the Companies act 1862. But this section itself gave rise to further dillleultics ; and it was ultimately decided, 1, that the liability of a contri- butory to calls made in a winding-up under that act commoiicpil when he became a member (c) ; 2, that if the winding-up pn- ceded his bankruptcy, all future calls might be jjroved aj,'iiiiist his estate (/); 3, but where he was adjudicated bankrupt before the winding-up, calls made in the winding-up could not be proved at all (r/) ; and consequently in this case tlu' baiik- rui)t remained liable for all calls made while he continued a shareholder. The Bankruptcy act, 18G8, abolished tlicsc unueccssarv distinctions {/;) ; and the present Bankruptcy act, 1883, i.-, similar to it. Under this act, when a shareholder l)c('oincs bankrupt, all calls in arrear are provable as debts, and liis liability to future calls may be estimated and pi'ovcd as \vi 11 when the company is being wouiul up as when it is not (i). It the shares are neither disclaimed nor sold by the trustee, but are allowed to remain in the name of the bankrupt, and hu (d)tains his discharge, it seems that he will nevci'tlieless be freed from calls in respect of them, as his liability to tliem was capable of proof (A'). Prcsmt law. (i/) Sue, (111 till! iiiiu hand, (Icmral IJUi-oiuti Co. V. SloL-cs, 17 ('. B. N. S. 70"), and on tlu' otluT, J'arhurji'n case, 3 De (i. F. & J. 80, and Kx parte Xicholas, 2 De G. JI. & U. 271. See, also, Cliapplc's case, .5 De (!. & Sni. -100; dirni.shiM's f((,sr, il>. 59!). (r) Kv iMrtc Cannrll, 4 De O. J. & S. 5150. See, also, ]\'illiams\. Uanl- iiiq, L. R. 1 H. L. 9. (/) Ex parte IHckerituj, 4 Ch. 58 ; MitcheWs caite, 5 Ch. 400 ; M'Kircn's case, 6 Ch. 582 ; where the bank- rupt was a past member ; Ex parte Marshall, 7 Ch, '62\ ; Financial Cor- povatian v. Lturrincc, L. 1!. 4 (.'. I'. 731, and the cases in the next nnW. Holincx v. Sipnonii, 13 Eq. (i(i, isii't oj)poscd to these. ((/) ^[arliH'li Patent Anchor dw. Moduu, h. n. 3 Q. n. 30(i ; //'^<' ■ case, 7 Eq. 3, and 4 Ch. ;!74 ; /. parte Kimj, 3 Ch. 10. It «as I'r doubtful whether in this I'ai^i- tli'} eoulil lie prtn-ed if made before tl:' bankru|)t's estate was distrilmtii': if the assij,'nee took the slums. >u L. J. C.iffard's judgment, 4 Ch. 27^. (/O See §§ 23, 24, 31. (i) See §§ 37, 55. (/.•) Mercantile Mutual Mam'-Im. SKT-01 T. 557 A company entitled to a lien on a bankrnpt's shares for Bk. TI T. Chap, s. cdls is a secured creditor, and cannot therefore prove without jlivingup its lien (/)• The ordinary rules as to set-oft' and mutual oi-edit api)ly to Sut-oir. l)iiiiknipt sliarelioldors. As regards conipanies which are being wound np, the Companies act, 1802, provides in effect that ilibts due to a contributor}' from a limited company which is being wound up cannot be set off by him against calls made upon him (iii). But it has nevertheless been decided that if the liquidator proves for a call against the estate of a bankrupt contrihutory to whom the company is indebted, the mutual iTodit clause applies, and a set-off must be allowed (»). The combined effect of the sections of the Bankniptc}' act, Suniiimiy, 1883, relating to the vesting and disposition of property (§§ 43, 44,50, 54), discliumer (§ 55), and the proof of debts (§ 37), seems to be as follows : — 1. That the legal right to a bankrujit's shares vests in his trustee ; •2. That the shares do not vest in the trustee so as to make liim a shareholder in place of the bankrupt ; ;). Tliat the trustee can, without the concurrence of the bankrupt, sell and transfer or otherwise dispose of his shares fur the benefit of his estate ; 4. That this right can only be exercised by the trustee, sub- ject to the same conditions as regards consents, payment of i;dls in arrear, and the like, as the bankrupt himself would bavo had to comply with if he had been thf. ransferor; 5. That if the shares cannot be disposed of beneficially for the estate, they may be disclaimed by the trustee, and so be got rid of altogether ; G. That inasmuch as under § 37 all calls due and to become ihie can be proved, the bankrupt when discharged will be free bum liability in respect of the sliares, whatever the trustee iiiry do with tlu".ii ; Im., 25 Ch. D. 415. Conipaie Far- '!"onjfe'g rasf, 3 CJli. D. 2()4, which arose unilcr an Indian insolvency ;>i't. (0 yec Ih .hnnimiK, I Ir. Ch. ai ,^ (l.-i 1. (m) 25 & 2G Vict. c. 89, §§ 101 iS; 38, cl. 7. Sec infra, lik. iv., c, 1,§1U5). (ii) lie Dnvkworfk, 2 Vh. 578 ; Cnralli and HMjciard'x rhtiin, 4 Ch. 174 ; Ex imrl<: Slrioni, 5 Ch. 4i)2. 558 liAXKUUPTCY OF A SlIAUKIIOLUEn. Bk. III. Chap. 8. 7, That pnictioally even calls in arrear will not be jn'oypd if the company has a lien on the shares, and they are worth )iiui'c than the amount due in respect of them : for the oompaiiv will then retain the shares and realise them if not redeemed ; 8. That practically calls not in arrear will not he proved if the shares are transferred by the trustee ; for the company will look to the transferee for all future calls (0) ; 9. That future calls will be proved if the trustee disclaiuN or does nothing ; the amount of injury sustained by the dis- claimer being estimated under § 55 at the amount of the dilit which but for the disclaimer would be provable under § 37 (/i). The liability of trustees in bankruptcy to be made cuutii- butories will be considered hereafter (see Book IV. c. 1, § liji. (0) But it is apprehended that future calls can be proved in this case. If tlicy cannot the bankrupt may still be liable in some cases as a past member, which evidently is not intended. (p) The calls can be proved if the trustee does nothinj,'. Suo Kx piii Davis, 3 Cli. D. 1(33. ACTIONS BETWEKN COMPANIKS AND TIIKIll ^MEMBERS. OOi CHAPTER IX. OF ACTIONS BETWEEN COMPANIES AND THEIR MEMRERS, AND BETWEEN THE MEM15ERS THEMSELVES. General Observations. Tlio mutual rights and obligations of shareholders and Bk. III. Chap , o. directors having been examined, it is proposed in the next pliice to consider the means by which those rights and obli- gations can be enforced. In the volume on Partnershij), it was pointed out that an unincorporated firm or company could not at common law sue one of its members, nor could he sue it (a), and that this in- convenience could not be avoided by an agreement amongst the members that some officer, e.g., the secretary or treasurer of the lompanj', should sue and be sued on its behalf (^). The con- sequences of these doctrines were very serious to unincorporated companies of many members. Companies which were neichcr Putting a crcdi- incorj orated nor empowered to sue their own shareholders by holder.' public officers, frequentl}' found it extremely difficult to compel the payment of money due to them from such shareholders by any direct proceeding against them. This difficulty often led to the crooked expedient of " putting a creditor on a shai'c- liolder ; " that is to say, of compelling a shareholder to pay what he owed to the company by inducing some creditor of the company to single him out and sue him for the company's debt ('i) I'artn. 450 ct scq. (h) See Emnn v. Hooper, 1 Q. 11 D. 45; Corner v. Maxu-dl-Iridv, Iv. Rtp, 10 G. L. 354 ; dray v. Pearson, I.. H. 5 C. V. 5G8, the case of a iiiuUial marine insurance society; H'Ui V. Varha; 4 C. B. N. S. 209, tlie case of a cost-book mining com- pany. By ;}2 & 33 Vict. c. 19, § 13, calls may now be sued for by the purser. As to bills payable to the holder of an ofTice for the time being, see 45 & 46 Vict. c. 01, § 7, cl. 2. m ■:%$:' 1^: 560 ACTIONS CKTWKKN COMPANIES AND TIIEIU MKMDIJjs. Iiiturfcrence of a coui't C'f c(|iiity ill such a case. ]{k. III. Cli ap. 9. at the costs of the company. This exiiedient was usually fmiiid to answer the purpose, inasmuch as the sharoholdor could otilv resist the credit*. --'s action hy phiadinjjf the non-joinder of tlnj other sliarelioldors in abatement ; and this it was almost alwiivs impossible to do with etfect. Ihither therefore tlian allow tlie creditor to obtain judgment, the unfortunate shareholder made terms with the directors. It is obvious that the posscst oppression might be exercised in this manner, and wluitcvei' might be said in defence of putting a creditor on an obstinate sharehokler who would not pay, and could not be otiioruisc made to pay, what lie justly owed to the company, notliin;; could possibly be said in its favour in any other case. I'oitu- nately, courts of equity would always interfere in such casis, and both restrain proceedings by the creditor and compel those who "put him on," to deal fairly with the person sued. ^Vliat- ever the rights of the creditor might have been, if he had bieii suing bond full' (c), he was not regarded in cases of the present description as having any greater rights thaii those whose ton! he was {d). If the shareholder sued was entitled to have flic accounts of the company taken, and to have its assets npplied in payment of its debts, the court would make a decree ac- cordingly {>■), if the necessary parties were before the court (f). But a court of equity wouhl only interfere to protect the sliau- holder on the terms of his doing what was just to winds the company ; and would, if there was reason to believe that he ought to pay what the company sought to make him pay, require him to pay that sum into court (//). The mere fact, moreover, that a shareholder in a company i< being sued by a creditor at the instance of the company, is not ((•) If he wii8 so suing, the court would not interfere, Green v. Nixon, a.3 Beav. 530 ; Leek v. Dean, 3 Juv. N. S. 14. (d) See Tat/lor v. Hughes, 2 Jo. & Lat. 24 ; Shortridge v. Bosanqmt, 1(J Beav. 84, and llunjate v. Short- ridge, 5 H. L. C. 297 ; Horn v. Kilhrnini, S: Sni. 1G2. (e) Fernihough v. Lemkr, 4 Ra. Ca. 373, and Lewis v. Billing, ib. 411. (/) Sue Sihleij v. Mintoii, 27 L.J, Ch. 53. (g) See Cutts V. llidddl, llkG.x S. 22fi ; Sibley v. Mintou, 27 L I Ch. 53. Thi.s last was the case of a cost-book mining conijiany, a ^luuv- holder in whitii would uut piyliij ..alls. ACTION'S BETWEKN COMPANIES AND THEIR MEMUERS. 5G1 sufficient to iniluce a court to make an order for winding up r.k. Ill, chap. 9. the compftuy {h). The inconvenienctd arising from the state of the law above Effect of incor. iilluded to, were effectually removed by incorporating the com- ^°^'^ '°"" ])imy ; for a member of a body corporate might always sue or lio sued by it just as if lie were not a member ; and whether the body corporate was a company having gain for its object or not, is and always was immaterial with reference to its capacity ,if suing and being sued. The institution of a public oflicer to sue and be sued on K'^i^ct of ena- hehalf of the members ot an unnicorporated company, is not to .sno and bo necessarily so efficacious for the purposes now under discus- putuc officer. siiin as tiie incorporation of the company. For the public (itiicer may be so constituted as to represent the members as individuals, and only to represent them all, and not all less s.imo or one of them. If in such a case he sues one of the members of the compan}' which he represents, he in fact either represents the member sued as well as all the other members, or nobody at all, and in either case his action will be im- proper (('). In most modern acts of Parliament, however, care has been taken to avoid this objection, and to render the public officer the representative of the company as distinct from the individuals composing it ; and where this is done, legal proceedings between the public oflicer and those individuals or any of them, are tlieoreticall}' as unobjectionable as are legal proceedings between incorporated companies and their share- holders. The tendency in modern times, nuu'eover, is to regard inmpanies empowered to sue and be sued more in the light of Corporate bodies than formerly, and to treat public officers as the representatives of collective wholes rather than as the representatives of members individually (A). The general effect of the Judicature acts, so far as they Kffoct of tlio relate to legal proceedings by companies, has been .iheady in- acts. ' louW uut pay («) See iiifm, book iv. cli. 1 , § 4, anil K:r, parte Wyld, 1 Mac. & (;. 1 ; ^'X imk Laicton, 1 K. & J. 204 ; lii parte IFatson, 3 Dc G. & S. 253 ; Er.imrt'-m^,-, 1 Drew. 4(;.'). (0 SoiiHkhrnsv. Cniigm-i; 4 Russ. '>'>i ; Mac^[ahon v. Uptm}^ 2 Sim. 473; Hiujhexv. Thorp,', 5 ^\. & W. (i5(i ; Hcddon v. Conndl, 10 Sim. .58. See, too, jtcr LdhI Eldou in I'ini Handau v. Moore, 1 Iluss. 460 and 472. (/.) See iiifrd, p. 504. o n 5G2 ACTIONS BETWEEN CO.AII'ANIEK AND TlIKIIl MEMI3ERS. i' i,^ Bk. III. Oliap. 9. vestigated (lik. ii., c. 7) ; and it was tl'on seen that an uniii I'orporated company can now sue and he sued in its mercantil'j name ; and that where parties are numerons and liavi' a common interest, some of them may sue and be sued on belmlf of all in respect thereof. Further, there is now the same facility in arranging parties to actions in all divisions of the High Comt as there was formerly in arranging parties to suits inci|uilv; and the fact that an account has to be taken in order to ascirtiiin what is due from one party to another is no longer anyrcasDii why an action by one against another should fail ; at must, such a circumstance may render it expedient to transfer the action from one division of the High Court to the other at some stage of the action. It has not yet been decided whether an action in the imiiio of an unincorporated company can be maintained by drayiiiiist one of its own members; but the writer sees no dilliculty in principle in supporting such an action ; the company btiuj.' regarded for the purposes of the action as one collective whole (/). This, however, is comparatively an iiniiiipdicimt matter ; for if an action in that form cannot be mnintaininl, it is plain that one or more members can sue the others whenever there are legal or equitable rights to be enforced or iuljusted. With respect to actions by or against some members of com- panies on behalf of themselves and others, it must be bonic in mind that suits in this form have long been familiar in courts of equity, and certain rules respecting them have been settled which are not interfered with by the fludicature acts. The rules will be fully investigated presently. Actions liy and against tlic company. Aeticms liy or against some on behalf of otiiers. SECTION I. -OF THE PARTIES To SUE AND J'.E SUKD. 1. Actions III/ and ai/ainst incurporatud companies. Actions between ineoipoiateil ^^^^ incorporated company can only sue and be sued in its coniiianics and corporate name ; and this rule applies as much to actions by and against its own members as to actions by and against (/) Sudi actions are common in Scotland. ACTIONS BY AND AGAINST INc'OUl'OUATED COMPANIES. 668 other persons. Accordingly it lias been held that a rogistercl ^'k. jdiiit-stdi'k company can support an action against one ol its — uwii sliiireliolders for damages for a libel on the company pub- Ibliotl by him ('")• A shareholder of an incorporated company iiiiiy be a creditor of or debtor to the company, just as if he were not a member of it. It follows from this, that he may iiiit only sue it, but having obtained judgment against it, ho may execute that judgment against his co-shareholders, if they are Hablo to be proceeded against in that way by ordinary creditors. Moreover, a court will not interfere at the instance of the shareholders proceeded against, and stay execution agiiinst them, either on the ground that the plaintiff is himself a member ol the company, and bound therefore to contribute to his own payment, or upon the ground that the rights of the parties cannot be ascertained without taking the accounts of the company. In the case supposed the plaintiti" is a creditor (if the company, and not the less so for being a shareholder in it; ami to de2)rive him of his rights as a creditor would be to ik'feat one of the objects for which the co}npany, as such, has iiuy existence (n). But one shareholder will not be allowed to liiy up and put in force against a co-shareholder a debt of the cuiiipany, if the object of the execution creditor is to obtain by lueaiis of that debt payment of other monies to which he is i.iit justly entitled (o). An action to recover property of a company, or to make its directors answerable for the misapplication of its funds, ought tuhe brought in the name of the company ( p), and the directors camiot require all the persons liable to indemnify them to be iniule parties {q). The cases in which some of the members of an incorporated tumpaiiy can sue or be sued on behalf of themselves and others ^villbe considered presently (pp. 570 and 572). III. Clini>. 9. Suet. 1. ('«) Mdroiiolitau Haloon Onnibus I '■'■• V. llmd;i,is, 4 H. & X. 87. _ ("; See Ithmin v. Smith, 2 Ph. '-^■, Hanlingu v. JVchder, 1 Dr. & Sira, lui. (") IVoodhams v. Aiuilo-Audra- lKj) Harrison v. Bmn, 5 UeG, ocj (0 Ilichens v. Congreve, 4 Russ. 562. (») In MacMahon v. Upt on, Sim. 47:'> ; Seddon v. Council , 10 Sim. Sni. 728. (z) See as to banking compiiiii L'overncd Lv 7 t!eo. 4. c. 40; i1i). Actions in this form are permissible when tlieiv object is to obtain relief to which the whole class is entitled, and when the members of the class are so niunerous tliiit tlioy cannot all be made parties by name (c). Thus, for the i)urpose of rescinding an agreement illegally Actions to . vestnun illrcc- entered niti) by tlu; (hrectors ot an incorporated company, or tors from im- for the purpose of restraining them from doing that which jj^ i'™!"^"" ''^ ""• illegal, an action may be instituted by one shareholder on behalf of himself and all the others, except the defendants, afliunst those directors {(}). Again \u Appciicjj v. Pac/r {c), it was held that a suit could Apperlcy c. lie sustained by some shareholders of a provisionally registered '*°°' railway company on behalf of themselves and all the other shareholders except the defendants, against the directors, for iiMii V. Milfdin, a Ex. (Jl, removing,' llii' (liiiibt expressed in JIiKjhea v. niiyr^f, 5 if. & W. 656. Sec, too, i'.i' i)arte Hall, 3 Deac. 40.'j. As t(j otlii-r ciiiupaiiies, see Lcuvrcnce v. Il'ijnii, i> J[. i\: W. 355 ; Slciiuier v. Lmkrt, 4 Man. & Ur. 477 ; JFills =v for culls nuido g ^. ,s;,,,/,(,./,(((,;^ 4 K^_ 211, ullirmea ill error, 5 Ex. 715, in each of wliieli ;m action for calls by a public ullieer was successful. See, too, Smith v. 'hhhimthii, 4 Q. IJ. 430 ; licihU^h v. I'inmck, 10 Ex. 213. (ci) 32 & 33 Vict. c. 1!), § 13. (!') Sec Walworth v. Holt, 4 M. & Cr, 619. (f) Twenty used to be the mini- mum. See Harrison v. titcwardson, 2 Ila. 530. But see Fripp v. Chard Hail. Co., 11 11a. 258. See now Ord. xvi., r. 9. (d) (lrn>iv. Chaplin, 2 Sim. & Stu, 267, reversed on a))peal, on the ground of tlelny antl aequieseenee, 2 Russ. 126. (0 1 rii. 770. See, also, V.att v. Montcuux, 1 K. & J. !J8 ; ShijijKtrd V. Oxmford, ib. 491 ; Cramer v. Ilird, 6 Eq. 143 ; IVihon v. Stanhope, 2 Coll. 629 ; Harvey v. Colktt, 15 Shu. 332 ; Cooper v. n'ebh. ib. 454 ; Clements v. Bowes, 17 Sim. 167, and 1 Drew. 684 ; liichardsonv. Hasti)iij.i, 7 Beav. 323 ; Sihtson v. Edso of lmvinr( the nssots of llu' rompnny ronlisoil ninl applied in payniont of its debts, and for tlio distrilmtioii i,t' tli>' surplus lUiioiij^'sttlio slmroliolders. This form of action, moreover, is constantly uddptcd wluic numerous jjartners seek to make their manaf^ers account for secret henofits and advantages obtained by tliem in Ijicaili nf tlu! good faith owing to those whose affairs they conduct (/' i ; or to rescind contracts into \vhi(di the partnership Jms been induced to enter by false and fraudulent roprcscntiitinnsf./i. So in the case of mutual insurance societies and fricinllv societies one member may sue tho trustees or connr.ittcc ;;iiil one of each class of members as representing all the dtln !• members, where the object of the action is to obtain piivnunt of what is due to the plaintif['(/0. Moreover whore it is i)ermissible, on the principles above explained, for one person to sue on behalf of hiiasclf nm! others, he ought so to sue or his action will be defective fur want of parties. But there are exceptions to this ; for it seeiih settled that any one shareholdei- can maintain an nctiin against a comi)any to restrain the company from doing iin mt that is iUegal or iiJtrd riim (/) ; and if a plaintiff sues alone when lie ought to sue on behalf of himself and others, im amendment would probably be allowed. Where the plaintiff does not seek redress in respect of any injury or injustice to himself and others, i.e. where lie seeks redi'ess in respect of some injury or injustice to himself, lie iint only can sue in his own name alone but he ought so tu su', For example a shareholder may sue on his own behalf oiilv ti restrain the improper rejection of his vote (A), his wrougl'iil Act inns liy nno i~lnrel]()lili'r on liis own Ijtliulf. (/) Chanceij v. Ma>i, Free, in Cli. M. 429. .592 ; Jiicliins v. Coiiijrevc, 4 Jviiss. (/) Sec Tfooh; v. (hrnt W'-i .')(i2 ; TaijUir v. Sukiiov, 4 M. & I'r. 134 ; llick V. Kdiitiirdiric::, ',] K, & J. ■2:i7. ((/) See Small v. Attinml, You. -107, anil iiifvn, p. !'>(i8. (h) See J'(ii-e v. (Jhyj, 29 V.vav. .589 ; Hroinlcy v. WilliiiuMi, \V1 il). 177 ; Hanr.ij v. Bcrkirith, 2 Hem. & nr lial>ilities from which he is entitled to be freed, he has no right, having sold all liis interest in the (ompaiiy, to assume to represent tliose with whom he has no longer anything to do (r>). Upon the same principle it has been said that a shareholder who is a mere trustee, having no beneficial interest in the company, is not a proper person to >ue on behalf of himself and other shareholders ( p). Xeilher can an action by one shareholder on behalf of him- riaintifTa self and others be maintained by a person who does not ""'"""''^ " '4iiS lioiiestly represent the interests of his co-shareholder, but who is the nominee of a rival company (q). A bill by such a rival comiiiiny. (/) rnUironk \\ liirhiiiond Coni^oli- U„\ Mining Co., !) Cli. D. (ilO ; MiiiKtrr V. UammrJl Co., 21 (.1i. 1). 18;) ; iuvl SCO Harhni v. rhiUipa, •21) I'll. T). 14 ; llnnnu' v. La rriaidai'/M I'll. ]). 1. (m) Mnttir v. Endaii A';,"' "1//V- huvU linil. Co., :38 Cli. i). '.)■> ; Ihilhmd V. Dichun, 37 C'li. D. (id!). (/i) Seetlie cases as to calls, infra, p. "i73, and ]\'ard v. SittiiKjhourni' umL SkcmmRail. Co., !) Ch. 488 ; ('/.(// V. ;,'«/„•./, S Ha. 281 ; JFilluims v. >'Uiiiiiitil, 2 K. & J. 4(i;5 ; Silixnn v. yjimrth, 2 Du C. & S. 73 ; in wliich case tliu dcteiulaiit jilcailed tli;it tlie iiilerosts of the ]ilaiutill and those he assumed to Tej)iesent, wero nut identical. Sec, also, Thomini V. irohhr, 4 De (J. F, & J. 1!)!) ; wliieh sliow.s that if the jilain- tiir makes an alternative ca.sc, neitlier alternative must, he o]i|)osed to tliu interests ol' those whom he assumes to represent. (o) Ihiijlr V. Minit::, T) Ha. .509. (/<) Jliid. xid (fHwn'. ('/) Fomst v. Mum-licdcr, ;iiLiscn]itions i" cases of fuiud. El^- 'jJJ;,Cl,ar. 9. plaintiff lias even been taken off the file (/•). But thr more circumstance that the plaintiff has bought a share rcccnUv to enable himself to bring an action, does not warrant the Court in dismissing it (s). It was at one time considered that a suit hv one person on behalf of himself and others was not sustahiable unless the injury of which he complained was such as to give hiin and tliem a right to sue jointl_y ; and that where persons havin" no previous connection with each other liad been induced to suli- scribe to a loan or for shares in a company by IVuud, a suit liv one of them on behalf of himself and others to obtain a ntui n of their subscriptions could not be sustained (/). But Inter cases have gone further and allowed such actions on thr ground that the subscribers to a company have such a coni- inunity of interest in the funds subscribed as to entitle tlain all to sue for their return («). Practically this pohit is int now of nnich importance, owing to the modern rule as to mis- joinder of plaintiffs (.r). Fmilicr ni.sciva- An action by one or more persons on behalf of thciiiselvo timis on iii'tioiis ' , . . i • i iiy some I'll and others, may be mstituted without the consent of i^^uil "^ ''' '■ others (//) ; and even against their consent if the object of tlio action is to prevent or obtain redress in respect of an illegul act (c). But an action by one or more on behalf, iV:c., is tlic action of those who are named on the record as plaintitfs, anil whatever is a defence as against them is a defence to tlu action, whatever might have been the case if other persons liiul been plaintiffs on the record (•) Bhij'ain v. Mctropolititn Hail. Co., 3 Cli. 337 ; Sadon v. Grant, 2 Ch. 45!). Sec further, on this subject, Orr v. Ghixjow, tic, f'liil. Co., 3 McQu. 700 ; Ewjcr.'i v. O.ijo,d, dr., Hail. Co., 2 De (i. & .T. (>C>2. (') Junes V. Garcia (hi Ilio, 'J'uni. & JJuss. 297; Crosknj v. JSaiik nf Wales, 4 Uiir. 314. See, abo, Hallows V. Feniir, '.i C'li. 4()7. (») See JlccrhitKjy. Lloij(l,',i Drew. 227, whieli, although in'ior to Croskoj \. Hank of Jfak-; wna iint ci'.cil in it. See, also, Mosdey v. Crissnjs C'l. 1 E([. 405, a suit for tlie return d deposits. (.'•) See infra, next page. ((/) Piurt v. Brit''^h Nation A^fn. Co., 5 Jur. N. S. 555, afliriiiw. n;: appeal, 4 De G. & J. 158; /C/T/m. v. .SV(/woH(/, 2 K. & .1. 4()3. (;.•) JVhitev. Cannartlun Hi'ilJ'.. I Hem. & M. V8ti. See, aU: lUv.i-aiii V. Mdro'pnlitan Rail. 3 Cii. 337. Compare L on/ v. ^hard, 1 Ha. 2!)S). ('') Piurt V. Lritiah Xation /«'< ■ ACTIONS BY ONE MEMHEn 0\ BEHALF OF HIMSELF AND OTHERS. 569 Formci'lv, if a bill was filed by some on behalf of themselves I'k. III. Chap. 9, ^ ■ ' '' . Sect. 1. iiud others, and it turned out that any of the persons thus in- ,..,,,,, • 1 J J 11-, , Misjoinder of cliuled as plaintuis had no right to sue, or had mterests con- plaintiffs. tiiding with that of the plaintiffs on the record, the bill was dismissed [h) ; but now the Court has power to grant relief and to modify its decree according to the special circumstance of the case, and for that purpose to direct amendments, and to treat any one (n* more of the plair.titls as if he or they was ov were a defendant or defendants to the action, and the remain- in;,' plaiutift' or plaintiffs was or were the onl}' plaintiff" or pliiiutiffs iiu the record (<■). Accordingly, if an action is lu'oir^lit by one shareholder on behalf of himself and others, and it appears that the interest of some of the persons thus represented is different from that of the plaintiff, the acti'""i lurtv nevertheless be sustained {d). When an action is brought by some shareholders on behalf Frame of action of themselves and otlicrs, it sliould appear ni tlie statement of behalf, &c. iliiim (1), that the ])laintifrs are shareholders (c) ; and (2), that they are suing on behalf of themselvos and others. If this hist does not appear, the action will be treated as that of the ostensible plaintiffs alone (/). Whei'e an action is instituted by one member of a company Costs, on behalf of liimself and others for the protection of the funds (if the company and the action is successful, the plaintiffs are iidy eutitlcii to their costs as between party and party, idthougli in one sense the funds out of which those -".^-: are to be ])aid belong tt) t!ie plaintiffs themselves (//). !'•)., uhi s^iipra, whore the i)l:iiiiti(T was hi'lil barred by lii.s own iie- iimescencc in the mutters eom- I'laiuc!! ni'. See, loo, Scxrlh v, I'lmbrid; It Jur. 300, wheie tlic 'lolendiiuts gill rid ul' the suit hy I'liyiiii,' tliu ]ilaintilV all that In; wa-i eiitiilfil til. (M lu Xjnttal V. ,S'/// ('//(., TiUul. 4.") ; llif hill was dismissed us to some of llie plaintiirs only. (r) Sue Old. .\vi. r. 11. {"' Watson V. Cave, 17 Ch. D. 19 ; Hnllntrs v. Fi'rni'i; .3 Cli. 4()7 ; Jonr.t V. Ji'rnsi; 4 J la. .")2. See, too, Clcmentu V. //(Decs', 1 J)rew. (!S4 ; Wwrr/c v. The l'!(ist(>-)i Union Hail. Co., 7 \)v (;. M. i• V. I'arbr, l(i Sim. 170 ; Wnllmrj v. hnjUhij, 1 M. & K. Gl. (/) Iliildirin \\ Ltiirmin; 2 i>im. Si iSti'.. 18 ; L',n>p,r v. J'l.irin, :j De <;. & S. G88. {()) M'lrg'iii V. Girnl Euf!k)n Eail. Co., 1 Hrm. >S; JI. 500. 570 ACTIONS i'.V't\vi;i;n' ( o.Mr.wii.s .\xi> tiikih ^iioir.ius. }!k. III. Chap. Sect. 1. Appeal. Whfro company is incorporated. Accounts taken in uu iiction liy one; slmvclioldi^v nu li(li;,|f of liinisolf iuid jtlicr.s bind nil of tlioni (//). No member of a class which purports to be reprcsentod liv the plaintiff can appeal against, an order made 'i! the iiliiintilt's favour; his proper course if di-isatisfied with the ovdcr is tn make an application to the Court below to be added us ;i defendant to the action aiui then to appl\- to get rid of the order or to obtain the conduct of the acticm (/). Tf the ddi. sion of the Court of first instance is against the plaiiitill', it would seem that an_y member of the class represented liv him maj' obtain leave to appeal on an ex park ii]i|)licution ; the Court of A])peal {k). Where a company is incor])orated, and its directors or .sniiie shareholders have done or are doing that which otiier slian ■ holders desire to bring an action to redress or prevent, the following rules are to be observed : — 1. If the matter complained of is one which gives a riijlit of action to the company as a collective whole, the company oiifjlit to sue in its coi'porate name, and an action by one nu'mber on behalf of himself and others is improper (/) : but leave luny in' given to add the company as a co-plaintitf (»/)• 2. Again, if the complaint relates to some matter of internal management as to which a majority is competent to deciil , the action should be brouglit by the majority in tlie name i.i the company {n). 3. But if those who have the nianageni'^nt of ihe ntTiiirs nf the company will not bring an action in its name wlieii tl^ shareholders require it, having a right so to d >, 'S if directins or shareholders have done or are al)ont to do ilial wliiili i> wrong, even if sanctioned by a majority, then an action liv some of the members on l)elialf of tbemselvcs and others, uriii the latter case by a memjjer sui"g alone {o), may be susliiiiitil. (/() See Singleton V. Selviin, ii .lur. N. S. 114!). (?) JFatson v. C:>'2. (k) Mnrkhnm v. Mnrkhiniu KiCli. D. 1. (/) nvdij V. Lmrl-i, S, CIl. lO;?.") ; /,'»^xc// v. WahjiiU Wabrv-nrh^ (V, 20 I-;.!. 474. ((») Durhdt V. Covn; Cll. D. "i (ii) Mni-ihiiifiall V. Ciinlbur, 1 Ck 1). i:i ; .1/'/-./,7 V. AUtnii. , I'll. ::i>i, Fn.-^.. V. Jliirlmttii, i Ha. 4(il. (ii) SinipiOH V. Jl'isliaiii.itir l''i!iv llnl.i <\,H ir. 1.. V.l\-1\ ftw.-v/('v. ■.MIU.US. lev on Ik'IhiII' prcM'Mtod liy the pliiintiirs :i oT(lcr is tn added ns n ot rid of the Tf tlio deci- le jdiiiiititr, it presented liy iipidiciition 'v ictors tir SI line 1 other sliaiv- r prevent, tlip ives a right of iompany ought ne member on t leave niuy he ■Y of intrniid n1 to deciil , the name of I he atTuii's of nue when tlir >; if directors iiat which i^ an action by otliers, or in l)e snslahuJ, r. ,'. c, (h. n. ^i I. notes, Jf((.w?i V. llm-ri^, II C'li. D. 97, and the lii^ics iufni. (:r) Seethe last two coses, and Lijilc V. Juint. Ill iir/nl Hail. Ci)., ;3(i Beav. 10. (//) Hope v,I)tternatioihil Fiititiicidl Sociitij, 4 Ch. 1). 327. (~) ('ohm V. JFlllinson, 12 IJcav. 12.", am'. 1 Mac. i^ G. 481 ; Hoilj^nn [q) HoiKwInhrntitiimal Finandal \. I'l ,ri.i^ 12 Beav. 302 and 520, and tiocuhj, 4 C'li. D. 327. (i'; 7)V//.-''))(. V. irarifick L'amd Co., 4Dca'M, &G. 711. (•••') Pr(iurpose of obtaining relief in respect of illegal acts done or contemplated by directors ; moreover, an action in this form is sustainable to prevent or set asidt a transaction which is a fraud by a maj(j'ityon a minority (0; but courts will not interfere in actions so constituted, if tlie relief sought is in respect of acts the legality or illegality of which depends on the voice of a majority of the shareholders, who are not themselves chargeable with fraud (/«)• If sucli last-mentioned acts are sanctioned by the majority, the Court Actions liy Komc on behalf to con- trol a majority. (e) Ahoool v. Merry vxalhcr, 5 Eq. 464, note. (/) Bluck V. Mailable, 27 Beav. 3!)8. (f/) Mem'rr v. Hi)oper's Tihyraiih Co., !) Ch. 3.-)0. (/() Si'e tlu! observations of Loiil Cutti'nhaiii in ]'!(jefs v. /'i7,t, H CI. (.S: Fin. ()47, C48. (i) Sro lidijrihuii' V. The Kadcra Union Rail. Co., 7 Ha. 114. (/;;) Winch v. Birkenhead, <[•(■., Rail. Co., 5 De G. & Sm. 562, an action to restrain a coin])any froia in ell'ect traiisl'erriii;^' it.s busiiifss, (/) Atvudl V. Ml rnjwdilhir, b Y.i[. l(i4notc ; Menier \. llooiu r's T'l- ijraph Co.,\) Ch. 350 : Maxi.ii v. Ilurn-; Ch. D. !)7. (///) Sui' the ui'.\t section, mil Uu!teeens v. The !^n>dk Diw Ra.il. Co., !) Ila. 313, ACTIONS BY ONE :\IEMBEn ON BEHALF OF HIMSELF AND OTHEUS. 573 cannot interfere at iill, and if tliey are not so sanctioned, the ^'•^- ^If- Cimp. 9. Sect. 1. maiorit}' slionld themselvf .-. apply to the Court, and institute - - rn'oceedincs in the name of the companv (ii). If it is thou'dit ^'""= "'""'' "^ 1"^^ o 1 . V ' n company. neccssarv to bring an action before tlic views of tlie majority are known, or if the majority are too indifferent to take any proceedings to enforce obedience to their own resokitions, the lu'oper course to be taken by tliose wlio determine to appeal t(; the Court is to take upon themselves the responsibilit}' of Ijiiiiging an action in the name of the company. Such an action will not be stayed unless it ajipears that the majority (lisapi)rove it (o) ; if, however, the majority disapprove the action they should apply to the Court to strike out the name ufthe company as plaintiffs (p). Moreover, if there are conflicting interests, care must be Confliain,' taken to have each separate interest substantially represented 1 IV some person who is a party to the action ('z). Therefore, Actions to nlieve there is a dispute about a call which some shareholders have paid and others have not, those who have not paid cannot sustain an action on i)ehalf of themselves and those who have paid, against the directors, trustees, and secretary of the com- pany, for a general account of the partnership debts and assets, and to have the propert;,' of the concern applied in ilischarge of its liabilities. To an action M'ith such objects, some at least of the class of shareholders who have i)aid the call ought to l)e made parties (/•). Again, with respect to (//) Maclhmijidlw (lunUini; 1 CIi. li, 13 ; Mo-:kii v. Alxton, 1 Pb. 790. (") The, E rrkr and Craliion Huil, '•'. V. Ihdler, 5 Ra. Ca. 211, where tin: liill waa tiled in tlic iiaiiie of llu^ '■'UnpiUiy, altlioiigli the ilel'emlants liiul po£se.s.sioii of the sea!. See, also, Kitst Pant Dii, dr. Mininrj Co. v. Mnijiratthir, 2 lieni. & M, 254 ; Aiu-otil V. M(rnjn-n(th(r, o Ei^. 4(il liotc ; I'livler v. Lushintjton, 6 Cli. 1) 70; Hark a v, /'A/Z/O-x, 23 ib. 14 ; liiqimal Ifijdropntliic Hotel Co. v. Ilimpsoii, ib. 1. ill) SUhn- lAfjht Co. v. Sdhr,; 12 ('!i. 11 717, where leave was "iven to amend and make the company dei'endaiits. (./) Cramer v. Bird, G E([. 14.3 ; //()'(/( v. Grcdt Western Hail. Co., 2 Ch. i:(;2 ; Frc/.ttr v. Cooper, Hall d- Co., 21 Ch. I). 7IS (ail action liy a Imndholder on beliall' of himself ami other houdhohleia). (>•) See Uichimhon v. Larpent, 2 Y. & V. C. C.b07 ; Lonllv. Andrew, 1") Sm. rjHl ; Sharpe v. Dai/, 1 Ph. 771 ; Litnd v. Illanshard, 4 Ha. 9. If the plaiutitr doea not know who they are, see Hodijkinson v. National Lire Stork. In.iurixnce Co., 20 Beav. 473, and De (}. & .1. 422. 574 ACTIONS Ur'I'WKKN COMPANIES AND TIIKIll MK:\lI!i:iiS. Actions to restriun ])ay- iiient of divi- dends. Bk. III. Chap. !». actions to restrain the improper payment of a dividend, it is to be romembcrecl that tlie dcchiration of a dividend confers m eaeli shareholder a legal title to his share of it; and, cdise- (luently, even although tlie dividend may have been iniprojitTlr declared, payment of it will not be restrained in an nction by one shareholder against the company and its directors only. On these grounds, in ('(irlidc v. Soitth-JutHtrm Uaihi-di/ Compuni/, an injunction to restrain the payment of a dividend already declared was refused, although an injunction to restinin the future declaration of dividends, except out of profits, was granted (.s). Internal ma- nagement of tomiJanies. SECTION II.— OP THE RULE THAT THE COURT WILL NOT IXTEUFKRK IN MATTERS OF INTERNAL REUULATION. Where an application is made to a Court to assist one or more shareholders against others or against the niaiiii[,'iiii; body, the iirst matter to be considered is, whether the riglits which the complainants seek to enforce do or do not depend on the views which may be taken by the niaje)rity of the sliiuv- holders (t). The Court will interfere to prevent tlie violiitiuii of rights which do not depend on the views of other sliiuv- holders (») ; but, as a general rul(\ the Court will not iiiteit'iii' between members of companies for the purpose of enforcing alleged riglits arising out of matters which are properly tlu' subject of internal regulation. It will not interfere to centrul a majority, unless it sees that the majority lias been or is doing, or is about to do, that whieli it is illegal even for a majority to do ; and it follows from tliis, that the Court will not interferi in matters projierly the subject of iiittrnul management until all reasonable attempts have been inadt' to take the sense of tlie general body of members on the matters (?) Carlisle V. South Kasti.ru, Hail. Co., 1 M'lr. vt G. 689. Sei, also, Fam-ftt v. Laurie, 1 Ur. & Sin. 192. CViiipure Hudl' v. d'rtal M'mt^'ni i:,iil. (\)., :5 ell. Mi, v.lii'rc «>m» of the ik't'euilants wii.s licM sulHi iciitlv to rcprcsunt otluiM in the saiiic intnrest. (t) As to the t>ow V rs of iiiajuriiiej, «ee aiiU, l)k. iii. ch. 1, § -4, (u) See infra, \\ .'iTt), & . ami t!ie iiisliUKvs -11 |i. .^Tl. M,V'ITK1!S OF INTKUXAIi l!i;( H'l.Al'ION, 57i" >T INTERFERE in question ; nor cvou then uiilcss it is calleil upon to interfere I'-k-HI. chap. 9. to "ivo oti'oc't to tliu ■will of the luajority against a factious iniiiority. The leading decisions on this subject are Carlcn v. iJnirij, Dm V. Ihirhiittk, and Mozlri/ v. Alntoii, wliicli will serve to illustrate the application of the principle in (piestion, as well to luiiiieorporated as to incorporated companies. in ('aiic)i V. Driirij (v), a large number of persons were '-'omplaints iigain.st leiiiov- imrtuers in a concern called The Ihothsidc llrcwciij, and six ot able directors, tliuiii on behalf of themselves and co-partuevs, filed a bill <'ai'lei> '•• Dniry. against the managers and others, alleging cireumstances of t'lMss mismanagement and neglect on the part of the managers, and praying for an account, a dissolution, and f receiver. It appeared that by the company's deed of settlement, the mumigers might be removed at any general meeting ; that f'L'ueral meetings were to be held at Lady-day and Michaelmas, or within a month after, at such place as the managers should appoint ; that a committee of twelve persons should be annually elected for auditing accounts, and advising the managers ; tlnit if the managers should misbehave themselves, this committee, or any seven of them, should have the power of calling a special general meeting of shareholders to report thereon ; and that no dissolution should be made without the consent of a majority of three-fourths of the shareholders at a general meeting. A motion for an injr.nction and a receiver was rel'usod with costs, the Court not being satisfied that the means of redress provided by the parties tliemselves in the iirticlts were not eifectual, and being of opinion that the plain- tiffs had a remedy in their own hands to which they had not resorted. From the judgment of Lord Lldon, it appears that the Court would, if necessary, have compelled the managers to call nu'i tings; that in a case of delinquency chsai'ly nuide out the Court would have acted without hesitation ; but that there iiibt havr been a positive necessity for the interfercJice of the toiivt arising from the refusal or noglec. of the conuiiittee to net; and that tin Court would not interfori' before tlie parties ,') I V. C\: ]'.. 1.5-1. StT, ulsn, mont v. .\hrnUth, ;j \. ,\. |!. jso : il'(i« V. 'l\iijh„\ \h Vcs 10 ; KUi«>), V,7.>- v. Tluiwus. '.) Sim. (iild. y.Uiijmd'l, -J. Jiic. i^ W. M-.i ; J1,mh- 57G ACTIONS DETWKKN COMrANIKS AND TIIKIl: Mi;.\lI;r,nS. Sect, AllcKcil fraud tiiid misconduct, FosH r, liar- bottle. Bk. ITI. Chap. 9. lind tried tliat jurisdiction which the articles had tlicniseh-cs provided. In FnsK V. Ilarholtle (//), two nicnibors of an incnrpornttd company, called The Victoria Ptirk Company, \\\vi\ a lill against the directors and others, charging th(>ni with ,i vnrictv of fraudulent and illegal acts, wlu'reby the property of tlio company Avas misapplied, aliened, and wasted, and praving that the defendants might make good to the company the losses sustained by the acts complained of, and that a receiver niij,'lit be appointed to apply the proi)erty of the company in dis- charge of its liabilities, and to secure the surplus. Tlic general result of the act incorporating the conqjany w:is (in the opinion of the Court) to nudrr v. Ci\imgnw Com]WH(/(c), a suit was instituted against a railway company pany. and its directors, seeking redress on the ground that the directors were also directors of a rival company, and were acting in the interests of that company to the prejudice of the >!iareholders in the first company. The specific relief sought was, that certain calls might he set aside, and that monies already paid, for calls previously made, might bo returned; («) Sec, in addition to tlmse mentioned in the te.xt, Kdtatnlt v. Ihe Slw/wshuni and llinmnijhum ''as'. Co., 2 Du (;. & Sin. 537 ; Vifc V. The XnrfolL- Hail. Co., .i il.. -i*3 ; Knd v. JwLson, 14 Beav. 307, ."'■■I 2 J),. C. J[. & G. 49 ; Indcr- Wc/.- V, N,„ //, 2 Mae. & (J. 21(i ; and tlie case.s tk-;ding with disputes be- iwwn meuibers ol' a chib. See l,.C. Fishi-r V. Keuiii; 11 t'h. D. 353; Liihourhircv. IVharncHjIc, 13 il). 34G ; Dawkinti v. Aittrolmn, 17 ib. G15. (/)) 12 Bc-uv. 433. (<•) 3 MacQu. 7!)!). Compare i/o(/;//i'Uii"0(i V. National JAve Slod- Insurance Co., 20 Beav. 473, and 4 l)e (t. iS: J. 422, wliere, however, r; Het was .-^nught in respucl of other matters tiian tiie call. 1' P II •»■•• 678 ACTIONS liETWEKN COMPANIES AND TIIF.IU MEJrilKHS. I!k. HI. CImii, Sect. 2. MacDougall v. (ianliuer. Course to l>e tiikeii by minority. but the suit wrts dismissed, on the ground that althdufli the acts of the directors were bo5'ond their jiowors, it whs cuni. l)oteiit to the shareholders to ratify and adopt those acts, and the suit was not instituted for the protection of tiie ninjonty of sliarehohlors. Again, in MacDoKfiall v. Gardiner { of votes, an action by one shareholder on behalf of himself and others may be supported (/;)• If, however, the majority, acting h)wi fide, agree with and sanction the course adopted or proposed ((/) 10 Ch. GOO, and 1 Ch. D. 13. The decision of V.-C. Malins, in 20 E([. 383, was reversed, and the pre- vioua decisions of the same judi,'e in Featherstonev. Cooke, Id Eq. 298, and Trade Auxiliary Co. v. J'ickcrs, ib., can hardly be ri-lied upon. (c) See tlie foregoing cases. if) Me of Wiiiht Rail. Co. v. Ta- how'lin, 25 V\\. D. 3:20. Coiajjaie Jackson v. Mumter Bank, 13 L. H. Ir. 118. (g) See the observations in Foss V. Harjottle, and Modey v. Ahton, and MacDougallv. Gardiner, 1 C'li.l). 13, above referred to. As tu nm^ the name of tlie eom]iaiiy at the risk of a stay of proceedings, see auk, p. r)7;i. (/(,) See Atwool v. Merry wmtha;'! Eq. 464, where a bill by one shan- holder on behalf of himself aiiJ others, was uUiniately saeeessfiil: althougli a l)ill by tlie conipany had been taken olf the file. MDKUS. MATTERS or INTERNAL REGULATION. 579 Uhoui;li till' it WHS com- ISC acts, iuid tilt! inujovity I't WHS asked aiTanj*(;ments 111 to ('omiK;! rs liftd tlii'in- ip])oar tliiit a IIk; (livcctoi'H was therefore wlien treutiiif; the miinaging javour to bring , anil ascertain Court will nut lusl' the notice (/). If the they call sue ess (;;) ; or if scale of votes, •If and others ty, acting' ^i'«'' or proposed Modfij V. AhiM, Gardina; 1 Cli.D. to. As to usiii':^ miiany attlierisk eedings, sue auk, Mernjmathcr, 'i lill by one shan- of iiimself Mill Lately successful: ] tlie company hail tile. to 1)0 adopted by tlio maim<,'inL' body, and if that course i» not ■'•'<• ^T. chui). 9. ■ ' Si'et, "J. Wkiial if (tpprorcd hi/ tlu; iiidjoritij, the Court cleiirly cannot interfere. But if that course will be a fraud on the minority, or illeLjal, although sanctioned by the majority of shareholders, then, even if it is approved by all of them except one, the (Hurt will interfere at the suit of that single dissentient sharo- liiilder, and protect him and liis interests : and in such a case it is not essential that he should appeal to the other share- judders before applying to the Court (»). .\s an illustration of the proposition that the majority cannot Majniity not .,.,.,,, , . •'••HIP iiiU'rl'inO'l witli lie interfered with it they are not doing what it is illegal tor if tli^y aio not them to do, reference may be made to the case of L^ O A / S M m Photographic Sciences Corporation 1% WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 . 304, and 1 Mer. 107, where a decree tor an account of protits wii.s made. (j,) 11 Sim. .327. (>/) 1 Sim. N. S. 550, Sec, too. Winch V. Tlie llirkenhmd, Ac, Hail. Co., 5 De (t. & Sm. 562 ; Sidoiiwn.i v. Lni)i(j, 12 Beav. 377 ; Vliiich v. FiHanciul Corporation, 5 Ei^. 450, and 4 Ch. 117. (r) JJloxum V. Metropolitan Hail. Co., 3 Ch. 337. (s) Ifiinlv V. Greut IVeMerH M. C'w.,3('li. 2G2. (0 Henry v. Great Norlhcm ML Co., 4 K. &.J. l,and 1 De (!. A; J. 606. See, too, Carlinh: v. The SM- Eastern Rail. Co., 1 Mac. & 0. t'"'. and on the ri^hta of pitleM: •shurehohler,'', ante, p. 433. («) See infra, x\\\Av\ the heml 1: • junction, wheie tlie casen will i' toiiml collected ; andiui^, p. •''Tl. MATTERS OF INTEHNAI. HEGULATION. 581 Commnii U), where a railway company was restrained from ^^^- 1{'- ^^'^P- ^• . ... , ' fcxjct. 2, can'ying on extensive dealings m coals. — ■ Where a fraud on a company is complained of by a minority Frauds sane- only of its shareholders, considerable difficulty arises ; for a raajolity^ ' transaction wliich is a fraud on the company may be repudiated or adopted by it at its option. Hence, if a majority of the slmreholilers not implicated in the fraud, bona fide, elect to ratify the transaction which they might, if they chose, repudiate, it seems that the Court will not interfere at the instance of the minority (,(/) ; but if the fraud is a fraud by the majority upon the minority the Court will protect such minority (s). After the foregoing remarks, it scarcely requires to be men- Fiictious tioncd that the Court will interfere to control a factious minority whicli impedes the execution of the lawful resolutions of the majority ((/). Nor can Mozlcii v. Ahtov{h)he considered as Mozley »•. inconsistent with this proposition ; for, although in that case ' the Court certainly did refuse to iiiterfere, it was not called iipon to do so in a suit properly framed ; and it is tolerably (.'kar from the judgment, that if tlie majority had cliosen to institute a suit in the name of the cori)oration, tlie Court would have acted very dift'erently (r). (/) I l)i'. & Sin. 154. See, alsn, AU.-(l(ii. V. Ely, HathUnham and Mtun Hail. Co., 4 C'h. 194; Alt.- I'fiii. V. llreat Eastrrn lUiil. Co., 11 Cli. D. 44!), ami r, App. Ca. 473 ; .•1'/.-(iV/i. V. ^yhnviilmrij {Kimjiiliditl) llruhjc (\ 2\ Ch. D. 7r)2. (;/) See Fans v. Uarbottlc and .y»:./f;/ V. Ahton, nhi nujira, and jui- Wood, V.-C, in Clinch v. Finnndal i'vrp., 5 Ell. 482. (•.) Sii', Atjrool V. Mirrijn-eatlier, .5 E4. 4G4 n. ; and the caxes of ille- gality rfforiud to above. ((() Sec I'hi' Exciter and Crcditon ilidl. Co. V. Ihdler, 5 Riil. Ca. 211, ii: wliicli till' Court did so interfere. Si-e, too, Frasi'r v. Uliolloj, 2 Hem. & M. 10. (/-) 1 i'h. 7!»0, ajid aute, p. rm. (c) See, also, Marlhwjall v. Gar- duifr, 1 ("h. 1). i;j. In Miks v. Tlwmm, 9 Sim. (iOC, V.-C. Shad well declined to restrain the sailiiifj; of a ship, although it would seem that tin- majority of tin- shaichohhT.s of the company to which the ship he- lon,L;ed, wvre opposed to lu-r Siiilini; on ilii' voyage on which slie was ahout 111 he sent. The rejiort of this casi' is, however, ob.scuve, not only as to the facts, but also as to the reasons lor the judgment. 582 Bk. III. Clmp. 9. Scot. 3. Lauhe.s a bar to relief. Setting asiilf agreements. Omy r. Chaplin ACTIONS BETWEEN COMPANIES AND THEIR MESIBERS. . SECTION III.— OF THE RULE THAT THE COURT WILL NOT INTERFERK AT THE INSTANCE OF TERSONS WHO HAVE BEEN GUILTY nF LACHES. A plaintiff who seeks equitable, as distinguished from lecal relief, will fail to obtain redress if he has delayed his appli- cation so long as to render it unjust to interfere on his beliulf. His delay naturally induces others to suppose that he is con- tent, and to act on that supposition; and if he has aUowcd thein to engage in transactions and expose themsalves to risks, in the belief that they will alone be the losers m the eveut df disaster, he will not be able to obtain any share of then- gains in the event of success. The ai^plicatiou of these principles to shareholders, is wtll illustrated by those cases in which partners and share- holders, whose shai'es have been forfeited, have been refused relief on the ground of delay (d). The following cases further illustrate the application of the principles under other cu'cum- stance s. In Gray v. Chaplin (e), the dii'ectors of a canal company made an agreement for letting tolls for ninety-nine years, which agi'eement was both ultra vires and detruuental to the interests of the public. After the agreement had been acted upon for fort^'-seven years without any complaint being made, a bill was filed by two shareholders on behalf of themselves and the other shareholders to set aside the agi'eement and for an account. A great majority of the sharelrolders disavowed the suit, but the Vice-Chancellor held that this was immaterial (/), and he made an order for a receiver. Upon appeal, however, from this order, liOrd Eldon held, that the plaintiffs could not avail themselves of the interest which the public might have in the matters complamcd of; and that, whatever relief might be obtained by the Attorney-General on behalf of the public (.a'. the plaintiffs were precluded by theii* own laches and actpii- ((Z) See Partn. 4eg— 475, where //«Z/, 1 De G. & J. 173,where itwu- the ca.sea are collected. Compare Clqig V. Edviomkon, 8 J). G. M. 787 ; Hulu V. Jiiicell, 18 Ch. D. 6G0, where laches was a liar, with Hurt v. Clarke, C Ho. Lo. Cu. G33 ; and Vkments v. not. Ante, pp. 534 and 535. (e) 2 Kus-s. 126. (/) See 2 Sim.& Stu. 2G7,au(l i Riiss. 132, note. {g) See ante, p. 580. EFFECT OF LACHES. escence from disturbing the possession of the lessee of the tolls, at all events before the hearing of the cause and in the absence of the Attorney- General to represent the public. The order for the receiver was accordingly discharged. What became of the suit afterwards does not appear, but Lord Eldon's judg- ment left the plaintift's small hopes of obtaining a decree. Ill Graham v. The Birkenhead, lOc, Railway Company (h), a suit was instituted by a shareholder in a company to restrain the completion of part only of the company's works. There had been several suits for the same purpose instituted by other shareholders, but for reasons to which it is not material to advert, those suits were never effectually prosecuted. It had b,een known for a considerable time that it was not intended by the du'ectors to coinplote the company's works as originally contemplated, and that in fact there were not sufficient funds for that purpose. It was also well known that the directors had for some time been completing pai* of the works. It was held that those who disapproved of the application of the com- pany's funds to that limited extent, ought to have taken pro- ceedings to stop it at once ; and that having regard to the laches of the plaintiff he was v yt entitled to relief. In Stupnrt v. Arrowsmith (?). a suit was instituted by a shareholder in a company against its directors and others for the piu'pose of compelling them to restore funds of the com- pany alleged to have been illegally applied in buying up shares (/i), and for a general account. It appeared, however, that the alleged illegal purchase of shares had not taken place, that the directors had laid accounts before the shareholders showing the amount of the company's receipts and expendi- ture, mid the balance to be divided ; that these accounts had been adopted at a general meeting, and that payments had been made to some of the shareholders upon the footing of these accounts. The suit was not instituted until three years alter the ado])tion of the accounts, at the meeting referred to. 583 IJk.III. Chap. 9. Sect. 3. Compelling completioa of works. Graham r. Bir- kenhead Railway Company. Making good breaches of trust. Stui)art V. Arrowsmith. (h) 2 Mac.& G. 14G,aiul 12 Beav. Patckett,33 Beav. 5!)5 ; Scott v. ho)i, •*«!. 34 Beav. 434. (i) 3 Sm. & G. 17G. See, too, (k) See, as to this, Evans v. Koit V. Jarhon, 14 Beav. 3G7, and Coventry, 8 De U. M. & O. 835, ami 2 De G. il. & G. 4{) ; Ureijonj v. other cases, ante, p. 371 et seq. 684 ACTIONS BETWEKX COMPANIES AND THEJR MEMBEHS. 1^ Uk. III. Chap. ii. Sect. 3. Burt V. Britinli Nation. I Api>liuiktion of foregoing prin- ciples in wiiulin,^ tip uoni panics. lirotlierhooiis caKe. tSmallcombe's case. and it was held that, under these circumstances, and no fraud having been proved, the plaintiff was not entitled to the inter- ference of tiie Court. In Burt V. Iiriti«h Nation Assttrancc Association (/) a suit by a director complaining of various improper acts done bciore he became a director, was dismissed on the gi'ound that lor two years he had had the means of knowing what had been done and had sanctioned what he afterwards sought to impeach. It has even been held that a person who acquires a slmre from a former sluu'eholder is pi-ecluded from coini)hiiniiig of what his predecessor could not complain of himself (//(). But this is very questionable (h). Again, a jjerson who seeks to rescind an agreement for fruuil must bring his action witliin a reasonable time after he has discovered the [fraud (o) ; and this rule applies to actions hy companies to rescind contracts intc vliich they have entered (;/). Vv^ith resi)ect to companies, b, .ar the most important dc- cisicms upon tlie subject of laches and acquiescence are thusr in which the foregoing principles were held to be applicablf \n questions anting in winding up companies ; for it is now settlcil that if a person luis retired from a company imrsuant to an in- valid agreement, which all the shareholders must be considcicil as having known, and which they have long suffered to rcnniiii unimpeached, sucli pei'son cannot afterwards be placed on ihr list of contributories (f/). (Z) 4 Df ('.. & .1. ir)8. See, .also, Peek v. (Inrncy, 13 E(i. 79 ; lluuler V. Stewart, 4 De O. F. & .1. 168. (m) Ffoolcs V. ^iiiith-ire.t'irn Jidil. Co., 1 Sm. & 0. 142 ; Pit I; v. (liimeii, 13 E(i. 7!). (w) Seedier Fry, L. .)., in AhIiIdh-ij V. IFatsmt, 30 Ch. D. at i)ii. 37!) and 386. (o) Clotifih V. Lou. rnul N.-W, Itail. Go., L. R. 7 E.\. 26 ; Sharplnj V. Louth atid End Voant Pail. Co., 2 Ch. D. 663. See ante, pp. 73, 85. (p) JirlaiKjer v. JVcii; Somhnro /'hiisplKit,' CV,3 All]). Ca. \2\b,'iiiti; 354, where a delay of Id ii urn tin was lielil not fat.il. Conipjire the jnd^' meiits of liords Cairnsand Blackburn on this point. {(/) PmtherJiomV.i cam; 31 liiav. 365, allirniecl on apjical, 4 Dc (i. F. it J. 560, and conlinncd liy /.'mn.i V. Smallcomhc, L. 11. :} W. I-. :'4:), See, as to the.se cases, anlf, p. hV.\ rl s&i. See, also, llioil'i en*, '■^- lieav. 387 ; Gregory v. y'(((cAt'(/, :» ib. 595. •jv' SPKCIFIC PKHFORMANCK. C85 IJk. III. Chap. 9. SECTION IV.— OP PARTICULAR ACTIONS. _ ^^^- *' __ 1. Actions for specific jicrfoniumce. Slinreholdors and companies suliloin sue eacli other for specific performance, except to enforce contracts to take shares and to obtain indcnniity against liabilities. An ngrcomcnt to form a company is one the specific per- Specific perform- fi)rnmiicc of vviich can hardly ever be decreed. Such an agree- monts to form iiicnt may be perfectly valid and binding, but this is not '■'""P^"y- itficieiit to entitle one of the i^arties to it to a deci'ee for spe- ( itic performance by the other ; for this i)urpose the agreement must not only be valid, but must also be one which a (.'ourt I an compel performance of in all essential points ; if this is piacticftlly iniitossiblc, an action for damages, and not foi* snecitic performance, is the proper remedy. In Sfocker v. stacker r. W'nhU'riiurn (/), tlie planitin had obtained a patent, and it was aiiicetl l)et\vecn liim and the defendants that a company should lie foniu'd by tlu'iu for the purpose of working the patent ; that the plaintitf should assign the patent to the company, give his whole services to it for two years, do his best to improve his invention, and give the company the full benefit of all iiiiprovonicuts. (Jwing to n doubt resjiecting the validity of the i);itent, the dcfi'iulant refused to abide by the agree- ment, luid thereupon the plaintifi' filed a bill for specific j)er- Idiniiuioe, praying, amongst other things, that the defendants laight be decreed to take such steps as might be necessary for tlie registration and incorporation of the compan}-. To this l)ill the defendants demurred, and the demurrer was allowed witli costs, on the ground that the agreement was one and entire, and that if a decree were made in the plaintiff's favour, the Court could neither compel him to perform his part nor restore the defendants to their original position in case he did not. Where two companies, having power to amalgamate, have Si)ccifi(; jum lorm- intered into a binding agreement so to do, specific performance 'mT»t"to1fmal- of the ngi-eemont will be decreed, if its terms are such that a fi'"""^'- (r) 3 K. & .1. 3!)3. See, too, Max- 495, where, however, there was ■''dl V, Port Teimmt Co., Hi Beav. fraud. ■J if 1 ',1 ■ '■•> V 586 ACTIONS DETWKEN COMPANIES AND TIIEIH MEMBEHS. I ™i| Bk. III. chup. ». decree for specific performance can practically be onfoncil Sect. ^' -r 1 t , In the Anglo-Aiiatndian Assurance Coinpuni/ v, liritisli Prmi- dent Insurance Society {s), an aj^reenient by the (kt'Liidant company to take the assets and liabilities of the plaintiH" com- pany, and lo indemnify it against its liabilities, was spocificallv enforced. Specific pcrfom- Tho question whether a court will decree the specific per- ancu of ngrec- „ „ .. iixj ii. menu to take lormance 01 an agreement to allot and accept .shares m a com- shares. pany, has given rise to some difference of opinion. \n ordmary contract for the sale of shares is one which the Court will decree to be specifically performed (0 ; and it is iiunmterial whether the vendor has or has not other shares which he does not sell, or> in other words, whether he and the purchaser will or will not become co-shareholders. But a contract for thi sale of shares by one individual to another, is distingiiishabL in many respects from a contract for the allotment and accept- ance of shares in a company, and Lord llomilly refused ti decree specific performaiice of a contract of this kind, on the ground that the decree would be ineffectual, as the shares mij,'lit be transfeiTed immediately after the contract was performed («^, On principle, however, this view cannot be supported, andmort recent decisions show that specific performance of such agree- ments will be enforced (x). It is true that the applicant for shares might sell and transfer his shares as soon as the decret was made, but the decree would nevertheless not be iuoperativt , If the applicant were the plaintiff, he could not be got rid of; whilst if he were the defendant, he could only retire from tli> company by transferring his shares to somebody else. Tin reason therefore which induces the Court to decline t<> decroi specific performance of an agreement for an ordinary partnership at will, is scarcely applicable to such an agreement ns that now under consideration. ^Moreover, nothing is more common tlmu (s) 3 Gift'. 521, and on appeal, 4 De G. F. & J. 341. (0 Ante, p. 499. (it) Sheffield Gas, dr., Co. v. Har- rison, 17 Beav. 294 ; JUucIc v. Mal- lalw, 27 Beav. 398 ; Columbine v. case there were circuiustaiues I" show that specific performance wa- inipossible. (,/;) UdesM Tramivaijii Co. v. .U' n- del, 8 Ch. D. 235. See, also, tli.' cases below, where specitic iieifcuiii- Ghkliester, 2 Ph. 27. lu this last auce was refused on other giDuml SPECIFIC PEBFORMANCK. 587 for the promoters of a company to agree to sell property to the Hk- Ul Chap. i». conipany in consideration ot a certain number ot paid-up shares, — and it is cortahily difficult to see why such a contract, if valid and binding on l>oth parties, should not be enforced ; indeed, there is (luthority for specific performance in such a case (y). Again, , persons who have agreed to take shares in a company, are every duv made contribiitories for the purpose of winding up ; and tlit'v are so upon the ground that, although they are not actually sliaruholders, they have entered into an agreement to take shares which is binding upon them. Many of these cases tc only intelligible upon the assumption that a contract for the iillotmeut and acceptance of shares is one which a court ought to enforce. In order, however, that specific performance of an agi-eement Defences to to take or deliver shares in a company may be decreed, it is per'/ormanc'r''"^ ueeessarv that the agreement should be concluded and bind- "^ ■»«i'ecment . _ _ tu take .iliares. inf( (z), and be untainted by fraud (a), or unfairness (b), and be capable of being performed by the defendant (o), and not involve any breach of trust {d), or performance by either party of obligations the performance of which a court cannot practi- cally enforce («')• On this head, reference may be made to the instructive case of the Odissit Tranuvays Co. v. Mendel (f), where specific f shares to be indemnified against calls and other liabilities has already been considered (Book III, c. 4, § fi), as has also the right of directors and others to k indemnified against liabilities incurred by them in conducting: the affairs of their companies (Book III., c. 2, §3). Tliuse rights are enforced by action, \\hich may or may not assume the form of an action for specific performance. It is unne- cessary, however, further to allude to this subject (/). I iicomplete ;L;ratiiitouB triiiisfei's. ''imtnicts for iiiileiimitv. m {ij) Damages can be obtained, see FosUv V. Wheeler, 38 Cli. D. 130. {h) Ellis \. Volman. ^^ Beav. 662. (i) Fergmon \. Wilson, 2 Ch. 77. (jk) Milroy v. Lord, 8 Jur. N. S. 806, L. J.; and 4 Do G. F. & J. 264. See, also, Naniicij v. Morgan, 37 C'h. D. 346. {I) See, as to siiecilic perfomancf nf contracts to indemnity, iianrfaj* iiKscrssioN Fon i'iuud. 581) Ah a tjoncriil rule, only tlioso persons who an;, by tlieuisolvos '"*• nr-Chap. 9. or their agents, parties to an agreement (or who represent — tht'iii), Clin oniorce it. An agrt'enient between A. and ]>. cannot airrceiucnt cuu 1)6 enfoiretl by (.'., although it may be for his benefit (>«)• I^»t '''"'"'^''° ''" if the afircoment creates a trust for ('., he can enforce the trust, anil so obtain the benefit of the agreement («)• The applica- tion of those prhiciples to cases hi which attempts have been iiwde to enforce against companies contracts entered into before tlicir fonnatioii, has been already alluded to (Bk. II., c. 1, !^ 2, and c. 2, S 3). Another illustration is atlbrded by licll v. Hcll v. Mi'.ihorouiili (()), where an unsuccessful attempt was made by a ' subscriber to an abortive railway company to compel two iiiembers of the provisional committee to perform an agreement to take shares and pay for them. The plaiiititt" was no party to tliis agreement, and he could not enforce it. His remedy, if any, was for misrepresentation, inducing him to takt! shares. 2. licscisslon of rontraet and return of ilcpoaits. The circumstances under which agreements to take shares can be rescinded and deposits paid on them be recovered, have been alveady examhied (see lik. I., c. I, § 3, and c. 3). With reference to actions to rescind contracts to take shares on the gnnmd of misrepresentation, it is necessary to distin- fruish companies which^ are being wound up from companies which are not in that position. After the winding-up of a company has commenced, it is too i. Companies late for a shareholder to repudiate his shares on the ground of fiauil ; oven although that fraud may in point of law be imi)U- table to the company, and may have been discovered since the winding-up commenced. This was decided in Oakcs v. Tin- , Imiiig wouiul up. V. Haijis, 1 Vi'inon, 190 ; Lloijil v. Dmiimd; 1 Cli. U. 398 ; Hwjhes- lIMeft V. Indian Muhihiofh Gold Minhig Co., 22 Ch. D. 501 ; Hohhs V. Waijet, 36 Ch. 1). 25(5. Fry Spec, I'erf., i'art VI., Chap. 10. (m) Volyear v. Mulgrave, 2 Keen, 81 ; Empress Emjinecring Co., Ki Ch. D. 125. ()i) As in Piige. v. Cor, 10 Ila. Hi;3 ; Miimiij V. Flavdl, 25 Ch. ]). Hi). See, too, Gregory v. Willmim, 3 Mer. 582 ; Ihde v. Hamilton, 2 Ph. 26(5. (o) 5 Ra. Ca. 149, and 10 Jm. 893, anil 12 ik 04, on appeal. 6% ACTIONS HETWEKN COMPANIES AND THKIR MEMllKIls. 'i. ComiianivH not licing wuiiihl up. Frnnil must Ix) vlsurly jjruvod. Ilk. III. Chai). 1). ,y,,^,„,/ ( y,)^ n„,i \^ settled law, nnd ii based upon the yrniiriil tliHt Huch fraud affords no answer to the claims of tlm iiiditors of the company. 15ut where the company is not beinf,' wound up, tlio ri|,'lit i f a person who has been induced by the fraud tir misrepre- sentation of the company to take shares in it, to repudintothosi shares and to be relieved from them is indisputalde ; provided, 1, th(! fraud or misrepresentation of which hi' comiiliiiiis is proved, and is sufticiently material ; and *2, he has not ilipiiveii himself of his ri^'ht of repudiation by his own laches, or by conduct inconsistent with such right ((/). The dilTiculty in practice is to prove the facts necessary to obtain relief. If there has been no positive niisrcpreseutiitioii and no concealment, nmking what is stated untrue (/), tin; cir- cumstance! that the plaintitf was in fact misled by what he was told and by documents furnished to him will not entitle liiin t(; be relieved from his contract. This is well illu^ iiiteil Iv Conybearcr. ('oiii/hcare V. Ni'W liritnsivick and Canada UaUwmi Com- New liriinswick, &c., Coiuiiany. jiany («). The material facts of this ditlicult civst' wrre shortly as follows : — The company was formed for the purpose of nurchasing and carrying on a railway belonging to the St. Andrew's and (Quebec liailway Company, and t)f purchasin;^' all the lands and property of that company, and all the ri^'lits of the holders of a certain class of shares (called A. shares) in it. The plaintiff applied for shares in the new company, aixl was informed by its secretary that the A. shares were entitled to a preferential dividend of 6^ per cent., and that the holder of every A. share was entitled to four acres of land. 'I'he secre- tary also stated that the new company had acipiired some thousands of acres of land from the Colonial Government, and that all claims against the company were regularly li(iuidate>i (p) L. R. 2 II. L. 325 ; Kent v. Freehold Land Co., 3 Ch. 493, re- versing S. C. 4 E(i. 588. (q) A nte, ]ip. 73 and 85. (r) Ante, p. 70. (s) 9 H. L. C. 711, reversing S. C, 1 De G. F. & J. 578, and aflfirming the decision of V.-C. Stuart in 6 Jur. N. S. 164. See, also, as to the necessity of clearly proving the fraud relied upon, Koh- son V. luui of Ikmn, anU; p. 78 ; Kennedy v. Panama, dx., Mail (,''., L. R. 2 Q. B. 580 ; Smith v. Hhtul- vnck, 9 App. Ca. 187, and 20 C'li. D. 70, which, however, was not an action for rescission ; and iis t» giving particulars of fraud, McCreiijhi V. Slevent, 1 Hurls. & Colt. 404. GMIIKHS. thu ci'iiliturs , lilt' I'ij^'lit if or luisivprc- 'pudiiitotliiiHf lit! ; priividt'd, coiiiiiliiiiis is s not (It'iuivtil laches, or by necessary to •cpn'sentiitioii lie {r), the <'ir- • wlmt he was cntitU" liiiii til illiu iiiti'il 1)V '(iHtfiiji (\im- L! were slidrtly le purpose of ig to tlic St. mirchasiu^ nil the rij^lits 'if shiuvs) ill it. Itiiiiy, mill was eiititltnl to II he holder of The sccre- |e(iuired some lernineut, and 'ly li(iuidiite.i [litjd upon, Kd- 1)1, anU, ]>. 7H ; I, etc., Mnil '-' , l,S//u'(/t V. ''/iif'- I and 20 Ch. H. was imt 11" ; and M t" \mnd, McCrei(jlil . Colt. 454. m-.scissioN Fon fraud. C'Jl , verv six weeks ; niul lie gave the plaintiH" reports from the '*'' '^'•,'^''*''' "• lirectors, in wliieh these and other luatters, tending to show the prosperity of the company, were stated. The plaintiif was >li(i\vn, and he examined the statutes of the (.'(donial Legis- liiture, by which the lands were granted ; and he took copies of illthose statutes, except one, away with him. That one sta- tute wliicli had heeii produced to the plaintiif, but which was lint iinum^'st those he took away, showed that the title of the Kimpiiny to the lands depended on the completion of the rail- iviiv bv ft certain time. The effect of the statute was correctly Allied in the company's arti(des of association. The plaintiff took shares in the comi»aiiy on the faith of those docm . nts uid statements ; hut having afterwards discovered that tJie .innpiiny was greatly in debt, that its affairs were far from indsperous, and its title to the lands was not ah. >ute but liable to forfeiture, insisted on rescinding his contract. The Vice-Chiiucellor Stuart and the House of Lords were of (ipinion that no positive misrepresentation had been made, that 110 wilful concealment had been practised with reference to the title to the hind, and that the plaintiff had not been iiulueid to take the shares upon the faith of that title being iinkt'easible, and his bill was dismissed by the Lords with costs (/). Upon the subject of the right to rescind a severable con- Koscigsion »f tiaet 111 part wliere it cannot be rescinded m toto the case oi tracts. Mitbtrin v. TretUindrkin) is very important. There the plaintiff had been induced by the fraud of the ilofendant to purchase from him several shares in several milling companies. Before the plaintiff had discovered the fraud he sold some of the shares in one of the companies. Maturin v. Truiliiiiiick. (0 The Lords J ustices held that tlie plaintill' was I'litilled to relief ijion the giouuds that the title of '!ie comjiany to the laud had been lepresented to him as indefeasible, tliat he liad been put off iiujuiry 'ivtlie statemeats so made to liiin, ■iwl that even if the aetiuisition of Imd was nut tlie main inducement wf the plaiutiir in takiuj,' shares, it furmed a material ingredient in the purchase. (i() 2 New Ilei>. r>14, and 4 ib. Ifi. In this case the V.-C is reported to have said that a sale of .some sharc8 in one of the companies would have atforded a defence to the suit ius to the shares in the oilier compiuiie.s. But (juiere how tliis is consistent with the relief actually f^iven. Hec, further, Curtis's case, 6 Eq. 455. fl'^ t Htt'. ^Bm £b Sifl w' ■1 * ''■ 592 ACTIONS BETWEEN COMl'ANIES AND THEIU MEMBERS. I Diicttor st'llin,': lii.s own slums .iH unallottfil sliarcs. Fiuiiil liy sellci of shares. lifc.lll. Chap. 9. He afterwards filed a bill to rescind the contract as to all tho Sect. 4. ... T-« T 1 • /• I - remaining snares. Pending the suit one oi the companies in which some of these shares were held, was ordered to In wound up ; and the shares in one of the other con;panies weiv forfeited for non-piiyment of calls, hut the defondiuit luul full notice of the intended forfeiture. The Vice-Chancellor Wood held, (1,) thac the sale of some of the shares befDro the bill was filed did not disentitle the plaintiff to rescind the con- tract as to the othei- shares ; and, (2,) that ncitlior the suli- sequent order to wind up one of the companies, nor tin subsequent forfeiture of shares, afforded any defence to ih suit. If a director of a company is applied to for unallotted sliaio^, and he transfers to the applicant shares already allotted tn himself, the transferee can rei)U(liat(( the transfer, and recovii back what he may have paid for the shares (r). When a person has been induced by the fraud of some j)iii • ticular shareholder to purchase shares of him, the iij,'lit it the person defrauded is to rescind the contract of sale, and to tlirow the shares back on the person from wlioni he toi.k them, and to be indemnified by him against all losses sib- tained in consequence of having taken the share? {ij). Tlii- is apparently the limit of the right of the person dcfnuuk 1 in such a case (z). If the shares have been actually tniii- ferred to him, he is not entitled to have the transfer tri'ated ii> null and void ;;s between himself and the company ; nor 1 1 restrain the company from making calls upon liini wliil-t he is a sharehohler ( ni> tith;. The traiisicrwas tlaidV. net 80 eomplcte a remedy. wholly void. («) JUoxam V. Mdnniulilaii Cuh nF.scissioN Foil rnAi'D. r,9n as to all the Iiciiiff wciiiiiii up or not, and ui)i)ii the nowei of the dirootors to '"'• I'F. chap. o. . ^ „ Sect. 4. aiuse t(» register translcrs. — ■ Actions for rescission of contract ami fur the return of deposits, can also be maintained under other circumstances besides fraud and misrepresentation as has been already pointed out(Bk. I., c. 1, §§ 2,3). Actions for the rescission of contracts with promoters have also been considered (Bk. Ill,, c. 2, § 1). The persons to be made parties to actions for rescission of rartios to contract must include the parties to the contract, but since the resdsllioir &e. Judicature acts, other persons against whom the plaintiff may lie entitled to relief may be joined. A person who has been induced 1)}' the fraud of the defen- Shares pmvliaseil , , , , , „ 1 • • .•.! 1. 1 • .• on the t'aitli of daiit to purcliase sliares Irom him, is entitled to bring an action false Htatements. fnv a return of the purchase-money, and for an indemnity, and the only necessary party to such an action is the person who sold the shares (li). Where persons have been induced by fraud to subscribe to a I'.ubbie com- biibble company, each one may institute an action on his own brhalf against those who have fraudulenth- obtained his money, foi- a ivtiirn thereof ; and in such a case, it is not necessary tli:it the /llior persons defrauded should be parties to the actitni, or be ivpi'esented therein (c). An action by one of such persons oil behalf of himself and otliers can, however, also be main- tained in these cases ((/). A member of a chartered company cuinot, Svi long as the charter is not revoked, nmintain an 111 tion to rescind his agreement to take shares (m the ground that the charter was obtained by fraud and that the conii)aiiy «as loniu'd l)v fraud {<■). lauiuj. '>) See Sidiiilniiil: v. Firnhii, i' l."!; ll'iJuni v. Slanlioiir, 2 (.'oil. Sim. .ViO; M,i,yy. Maliuhii, 1 M. >*c C.iiil ; Ai'i'nh. JM); Tunin- V. Hill, Ttiriirr \. T'"ir'.'; Turner v. Jlurlnnr, 1 1 Sim. l.li;, 17. {■■) Cnlt •. U'oulhUou, 2 P. W. \''\;i!rciii V. Jlnrntl, 1 Sim. -1.") ; W'imv. .Ivdc, 2 Sim. 28!) : I'ruUitml >■/'• Miudnj, I Ho C. & S. 4."!). ('') '-VW,« 7 V. llmd- of ]\'al,:t, 4 Gilt'. 314; '>,y,M- V. IIVW/, l,") Sim. i.,c. ell nil III-: v. lltiins, 17 Sim. 1U7, UIlil I Dri'W. (!8t, whi'ii' di'miincis to such lolls wi-ii' (ivirnili'(l. S.-c, tim, Slojijninl V. C.riHjonl, 1 K. i.^ J. 4i»l, iiml }>iill v. MmiliAii.r, 1 K. & .1. !is. {'(iinpiilt.' 1lidlnir.< y, Fmiif, '.i V\\. 4(i7, aii.l ;$ Ki[. rrlO. (r) Miiihn.x V. Linilmiij, !) lla. -.74. 594 J5k. III. Oliap. 9. Sect. 4. Opening accounts. Di.scovciy. ACTIONS BETWKKN' COMPANIES AND THElll MKMIii'.ns. 3. Of acconnt and discovery. The subject of account and discovery so far as it relates to partnerships and unincorporated companies will be lonud fiilK discussed in the author's work on Partnership (/). Actions for an account may be maintained in order to liavi- the assets of abortive companies properly applied ( l'ISC(iVi:i;Y. 55)5 it relates to )e louiitl fully )• order to liavf !tl ((/) ; and in good inoiuys •s of the com- be \YOUlul lip suit for a ilis- lio wiudiiig-uii been decided rebolders at ii [opted by tliciu ds impeacheil, ,vhieli must bf n aocouut miiy been audited us oimoctiou with ders to bind n auuot impeiicli cb tbe msijorit} have assented aiicb attention tbese, viz. : delivered to er incorpovatid not be requivoil U-mrsniith, :! >^""' Ki^. 167, a^i tu It- iVllltM. ShutI, 2S Cli. 1'. l,c 1,§3. je 10 lUiswer intorro) ; and must either coiisiilt the books and documents of the company which cou- tiiiii the information sought or produce them for inspection by the i)erson seeking discovery (jj), unless such books, &c., are inivileged from i)roduction. Directors cannot defeat the (.dint by forbidding their officer to examine tlio books {q). 3. An order for an affidavit of documents may be made AiVninvii of imder R. S. C, Ord. XXXI., r. 12, against an officer of a company (/■). Books and papers which are in the possession of a cona- Director ikny. liaiiy are, for pu)'poses of discovery, in the possession or power '"" i"'«-**-'^''""'- 111' the directors, and they cannot avoid giving a list of the liocuments of the company by saying that they, the directors, hiivo iioiie (-s). 'When an order is made against a company i'or the inspec- Inspcctiou of ,••11 1 ii T . •ii 11 1 1 books of coi- tion ui its books, anil the directors will not allow them to be i,uniiiuns. produced, an order for their production will be made against the directors personally (t). The right of the members of a company to insjicct and take copies of its accounts and other books and documents, apart iVuiu legal proceedings, has been ah'eady alluded to, see Hk.lII,c.3, §4(«). (i() VerhLiiv. Shiitifind IHscounf Co.,\?A:]\. 1). !)7. (o) Tiiijliii- V. Jlihulill, 11 Sim. :!!)!, and C'r. & I'll. 101; Soutlnntil: iV,'ta'Co.\.Qind;iiil P.. D.S^I.y/,;;- • 'iiltoll, Ij. J. ; llnkbnr, Vuiitlluin d' ''■'. V. t'Uhtr, 111 ib. 101. Com- pare ii'i(s6(j^/(((w V. Shriipslihr Uino)i '>Mli:<,.,i>iVAi.]). no. ()|) Sue l)r). Iiijuiiclioiis gi anted. I. — Alt uijunctuiii has Jiccit (jnudcd to restrain — 1. TIiu iiiiprdjier insertion or ((iiitiiiuiiiice ol' a pursdii'.s iiaiik' on u ton,- pany'.s prosiiuctus (c) or im the n'j'isti-r nf slmri'liuldcrs ((/) ; •2. The rcgi.stiy of an improper lian.-l'iT ol' shares ('■) ; 3. The nial\in;^' of calls for \Uc\^i\\ inn'iiosus(/) ; (,i) Ante, \>. .")74 ct 8cq, (;/) Anil', p. ;JI4 ct neq. (.-) See North Lumton Hull. Co. v. fimit Xurtlimi h'uil. Ok, U i}. IJ. 1). .30. ((() I'l((iif((ir V. JlirnniKjIiani, dc, AVuV. t'o., 1 Ka. Ca. 640. (/)) Fidihti V. Lanciitihiir, iCr., liait. Co., 2DeG. & S. 531. ((•) Uontliv. jrf/js^r, lOlUav. 5G1. (it) Tdijtnr V. IfiifiliPK, 2 Jo. & Lat. 24 ; ^3ltO|■t|■ultJt: V. JldMliqUit, Hi Ueav. 84. Compare lUdtocl; v. CVajj)- wian, 2 De 0. & S. 211. Tliis is now usually done Lv an iiiiiilioatinii to rectify the rej,'ister, as to wliitii see iinti', p. 57 it suf. and IL'I '/*'. (') Faf'f V. Sindiif, IC.Iur. -til. (/) See as to this, /V.-/"ii v. araii'l Collhr Jkxlc Co., 1 1 Sim. \)i'. and lliiitijhiintnH v. Xntiond h'- Stork In. vtr. Co., 2() Dcav. 47.'!, ami 4 l)e Ct. & J. 422, hotli of wliiti). however, were decided on di'iniimr. See further on this suhject, "nv. ^7.(^v/,,(/• 1,'nil. Co., 3 MiicQii. Tw. and the other oases cited (/(//((lUnJi: the next liead, Nos. 2 to G. INJUNCTIONS. T.Mr.r.iis. 591 4. Tlu' in.iViii;,' I'f calls on a sliarcliolilcr iiuliiccl t j Ijccuiuu s'.kIi Ijy I'.k. III. Chi;i. 0, j. Tlie ille;,'al issuu nf shares (/i) ; e.() , in'cfuruuce shares i.s.suetl pur.siuiiil i„j„„ct,;on3 tu a >iii'<-ial n'soliitioii (/) ; (i. Tlif illegal forfeitiuv of shares (/,) ; 7. Till.' unl'air usu liy a coiui>any of a crcilitor's iiaiiio in an action a.^^'ainst a ~lmiviiiiMer(/) ; ^. TIk' ilii'.^'al susiicusion of a shareholtler from hl.s rights (//() ; i-.i/., tlio imiirupcr rfjcition of his votc(/i) ; :). Th(> ilU'gal |iaynient of tlividunds not actually ileclarcd (o), e.) ib. 304 ; 1 JMer. 107. (ii) I'ciukr V. I.Hshiii[i(un, G Ch. l>. 70, and see Muffall v. Fitninlutr, TCii. D. .501. (o) FiiuYitl V. Laurie, 1 Dr. & .Nil. \'.\i ; CnihU v. South Eastn-R M. Co., 1 .Mac. & C!. G8) ; Henrn V. (Ii-ci'iit v. Lmidoa 'TniiuiriDj.t (Jo., IG L'h. 1). ;J44; Ihici.-iou v. aUlk.i, ib.347n. ; (luinw-'tii v. Land Corpora- tion of Iniuul, 22Cli. 1). 340. <'um- jiaie undir 2iid head. No. 14 ; Jllii.iitiii y. Milni/i, JidiL Co., 3 ( 'h. 3:57 ; MclhiiKjdU v. Jir-ir'i }lotd Co., 2 Hem. ^: M. 52^. (7) llooh- V. Cnvt U'e.itirv Roil. Co., 3 Ch. 2()2. (/•) lUurt V. Midltduc, 27 Beav. 3!)S. (.■!) Xdlwich V. Irviiiij, Part. 31G tl acq., and (iow on I'artner.sliip, A])p. 3!),S, ed. 3. (0 .1.-'.'. V. l.'rin' Xorthtrii ItaiL Co., 1 Dr. .^ Sm. 151. (it) Colniitii V. Kostcrn Counties lluil Co., 10 Beav. 1. (r) Sidoutons v. Iauwj, 12 Beav. 377. m^ COS ACTIONS lU'.TWKKV COJIPAMF-S AND TllKIR MKMliKIiS. lik. nr. ciijip. p. H.i-t. I. Iiijiiiu'tions giantcd. Hi I'Voin uiiikiiij^ a tliircreiil ruilwnv from thai wliiili ii was incoihtiralcil to inuke (;/) ; Or juut only of siicli railwiiy (:.) ; Or one iiiily oiii of scvt'ial I'aihvays which it hml Uvn fniiuiil lo make {n) ; i;?. The tian^fiT, liy one iiim|iaiiy, of its IiiisiiK'-s lo aiiutlur i nmiuiiv ( < ollicrwisc than iiuiliT § l(!l of tin: ('cimpanicH Act, I8(!2 (r) ; 1 t. The aiiialj,'amati()ii df two cumjiaiiies iiaviii;; simil.u' oIiJim ts(i/' • 1"). A iDiniiaiiy and its tliivctors from aiijilyiii;^' to I'arliaiiiciit ,it tli c" jiciisc of tlie company, for power to do wliat it was iint fi;iii|fd i do(r); l(). A chartered company from surrendering; its charter (/') ; 17. The puMication of the coidents of hooks and (hicuni'Uls iinpoite.] under an order (;/) ; 18. The payment out of the fiind.s of a company of money liorrnwel ],■, its promoters, to enahle them to comply witli the standin,^' onhr^ of ih House ol Jjords(/() ; 10. Proceeding to arliitration under an ultra viirs aj,'reement (i) ; 20. Prosecuting' a suit instltuteil Ity a stran^'cr, hut alle^'eil In t.i> luitli. henetit of the company {k) ; 21. Prosecuting proceedings for a liliel on the directu"s (/) ; ill) BfKjfhan' V. Eii^tcvn Union Hail. Co., 7 ITa. 114. and 2 Ma.'. & U. 38!) ; Simp.inn v. Jkni^^on, 10 Ila. 51. (;.) Cohen v. IFill.in.^on, 12 Beav. 125, and 1 Mac. & f!. 4S1 ; f.oijnii V. Coitrtoini, I'.i Reav. 22. («) Iloilf/.ion V. Poiris, 12 IJeav. 3!)2 and 529, and 1 ])e (i. M. & G. 6. (/)) Charlton v. Xmraxth' and CarlUU Bail. Co., ."> Jur. N. S. 10!)G ; Ikiiiau V. IiiiJJ'onl, 1 Sim. X. S. 550 ; Winch v. Hirlnihi-ail, alomons v. I.aiinf, 12 I'eav. 377; Hattrr.-liii v. ^^lUinrm; lo W. R. 801, where it was intended to obtain an act to le,itali.se the transfer. (c) See, as to this, Soitthall v. Ih-iti^h Mutual Lifu Akd. Sop., 11 K((. G5, and Ch. CU. (rf) A7rtj'«.y V. I.ittf, 1 Ileni. & M. 681 ; Oilhert v. Cooper, 10 Jur. :>^0. See, also, the last note hut one. (c) J.ijilr V. ]\a.'it HfiKjal Hall. Co, 36 Beav. 10 ; iVimt \. S/, (•.■»■.<■/,„,■,/ and Chester Hail. Co., KJ J5,.,iv. i ; Sinijmm v. Ikni.^oii, Id Ila. ."i| ; (Ireat Western Rail Co. v, J'ushont, 5 l)e 0. & Sm. 2!»0 ; I'amr v. £,(.,■( Lane. Hail. Co., 3 K. & J. "lO. .S.r, also, yl.-(/. V. Norvich, Wiiiim. a:!, and compare llatiinau v. Mni/r.r .j A-ihton-umlir-Lijne, 3 II. (."s; X. ;ji.'). (/) Ward V. fiociety of Attorni;. I Coll. 370, as to wliidi, see (!;i'.. p. 323, ((j) See J/7//i"in/).9 v. Prim' •! Wa:-s Co., 23 Beav. 338. ('') ,S/}(»(;A-i/(((!.. V, /.■■''■■.,■• ■•■,31. if. 10. (/) ^[llll|lt^■tl X • il lir' il ll'e^tirn J,'a:l. Co,. 1 ii^ & .M. l.W and i-omi)are Nurth !.' ..i lliil.i', V. (,'rnif Northern Hail. Co., 11 (>l. li. IX 30. See also 31 Ch. D., p, ;)()\ (/••) Kernaejhiin v. Williams, (i E'|. 228. (/) Pieherinij y. !>t(iihi:iisoii,HY.>\. 322, and compare StiKlilji v. (Irosvenor, 33 Ch. D. 528. INJUNCTIONS. 699 m. III. Clinp. t». .Sect. 4. 1 Ihiii r.iiiiiii t]ilication of c(ini]iaiiy'3 funds, viz. ; — Sulisrriptinn to the Iiniuaiiil Iiislituti!(») ; Injunctioii.s Stami'inK pru.vy fonu.'< aiitl J)ayiii,f; rotiiru postage stain]> on thcm(i') ; j;>:iiitcil. i'rintiti^ ]ii'o.\y forms in a way < ahnilati'd to innuencc the Vfitt'.s of Fh;UL'liol(toi's((/) ; payini,' costs of a windiiiLiMip jietitiuii presented l)y the directors, Imt opjiosed hy a number of shareliohlers and a minority of directors (p) j (iivinj,' ^^niluitics to servants and remunerating directors for past ser- vji fs when conijiany lias ceased to carry on business (7) ; 24. Illegally jireventing a person from acting as a director (.s); 25. To I'revcnt directors from laying icscdutions favourable to the.npclvcs (til a (|ucbtii)n in which their interests are in conflict with those of the liiireholdcrs before a meeting whieli has been convened by them by a ini.s- Kailing cinular, and one which contains statements calculated to obtain iiroxies in their favour witli(.iut giving the shareholders sullicient inf(jrnia- 'i:,;> to enable them to form a proper opinion as to the projier persons to whom to entrust their votes (t) ; 2G. Illegally iireventing a debuuliue or slock holiler from inspecting the company's books (»). II. — An injunction has hccii refused to restrain — 1. A conipiiny from commencing business on a smaller scale than con- Iciiililated by the i)ro.spectus, or befoie its nominal ca]iital had been sub- .-i.rilie(l(/) ; 2. The making of calls by a comitany commcueing business with less iMjiitiil llum that originally contemplated (//) ; X The making of necessary calls by directors who had been guilty of iiii}ii'(iper conduct (v) ; IiijiniotiDn.i rctii.:;cil. [ill) Uiiji'- V. International Fhinn- '•i'll .sv„., 4 Ch. D. ;J27. Sec also Ti-'i-iir V. Jriiittanih, 12 App. Ca. •lO:). (ii) Tniiilinson v. Sontli Kagtcni i:,iil. (■»., ;{.-) Ch. D. 075. (n) ^liiilihrt V. Grosvcnor, 33 Ch. 1). ."i28. (/i) >'i/i)7/( V. Ihihi of Mi(nchcstrr, 24rii. I), (ill. (7, Jliitlon \.ir,^t Cork Jlail. Co., 215 (ii. D. (>.")4, and compare Ihiinp- .-0,1 V. I'rWs Patent Vanillc Co., 24 H'. R. 7.J4; Taunton y. Royal Insnr- ■rncc QCh. D. 320. (h) Holland v. lUiinon, :M i'h. I). (iO!) ; Mnttir v. Kantern am! Mid- lanih Hail. Co., 38 Ch. D. !)2. (,'•) McDoiiijall v.Jersiij Hotel Co., 2 Hem. & M. 528. (//) Norman v.Milrlull, 1!) Beav. 278, and 5 ])e (1. M. i^ (1. 048. (::) I.oijan v. Cnurtoini, 1 3 licav. 22. 600 Bk. III. Chap. 0. Scot. 4. Injunctions refused. ACTIONS lU'/nVEKN COMIUXIKS .V\I» TllKin MlOMIUins. 4. The iimkinj,' of calls tm soiiu' only oi" the iiiumlicr.-i (if iin iiiuiil'Miuaicd society ((() ; 5. The niakiiif; of calls on nil tliu iiiciiilicis nf two aiiial^Miiiiiti-il ((jin. panics, to pay the debts of one of such coniimnies (h) • i\ Actions for calls on improperly rt'liminishcil or forfcitt'd shares (r, • 7. The borrowing of money by a liniilee cmi'liiit was complained of; no sullicient attempt having; liceii made to (niiii,,l tlm,, before ajiidying to the ('(Hirt (/() ; 1(5. Directors improperly ajipointed, frnm acting,' (o) ; 17. Directors from ])uttin,L; their own names on negotiable! iibtriiiiHii!. relating to the affairs of the company (p) ; (n) Bidley v. Dirkenhnal, k. III. <'li,i|.. '.I. Soot. 4. b. Till' sailiii,^ I'I'a >liili "H a Vuya.^'i' (liisiii>iiMviil 01(7) ; 111. The ii>.-ii^;iiiiu'iit. 111' ii coiiiiiiiiiy'.s jm-djiitI y to liiistt'os, iqi m Ini.^t \n soil aii'l Jiiiy lilt' toiii]iaiiy"s ili;1)t.s(c) ; Injunctions :;i). Till' total iiliaiiil(iiiiin.'iit liy a railway coiiiipany cif its works, it nut icfusetl. huviii^' fund.-* to coiiiplrto tlicin (.<) ; 21. Tlk' apiilicatioii to I'lirliaiiii'ut, (itlicrwisc. than at llic I'Xiienat; of tlic coinimiiy, lor power to onalilf tlic ronipany to do what '•. wii.s never in- iiiiiled it sliiiuh' -2. The sealing' oi'an ai,'reeinent to make such an application (.'•) ; 23. A ciiMipaiiy IVom applyin;,' to a I'oreiu'ii le;;iskture for inerea.-ed ]io\vers(//) ; 24. -All application t'j Pailiainent to legalise an a'^'reeniont for the transfer nftlie husiness of one company to another (v) ; 2.'). A railway coiupaiiy empowered to j)urchase a canal, from exerci^in;^' tlic jiowi'is of anal company ((/) ; 2(i. A railway conijiany liaving steam ferry-boats from u.sing them lor (itlicr llum ferr}' purpo.ses wha not wanteil for th Ch. l''71 ; llrad U'c^firn llnU. I'n. v. lln^hmt, 5 De (i. ^S: Sin. 2!)0. I'umiiare Muiui.irll v. Midland (Inaf n\4.1Uil. Co., 1 Hem. & M. i;3(). {■(] Winch y.Jlidcnhnid l!uil. Co., ■1 1).' G. & Sin. -)H0. (ij) I'dl y. Siirni, Xifodii Minimi '-■('., 1 De (i, F. & J. 177. (■.) ILiitfulni V. Kini of Hhdhnrnr, 1"W. K. ,S81. (11) A'«);/-r.< V. LKrford, tic, lutil. Co., ■2 De (1. i^i: J. (!(i2. (/<) 7''o;-/T.>7 V. Miinrloionth
    . Sect. i. Injinictiong rcl'imcil. Receivers. AcnONS nr.TWKKX companies and TIIKIIf All;Mi;r.l!:-!. 33. Tlie reduction of caiiitnl (/) ; 34. A geiit'i'iil iiii'ctinj,' calltid liy slmrelioldcr.s umlcr § 70 of tin- Cm. l>iinics clauses act, IHJo ( j) ; 35. Giving clfect to resolutions of a meeting convened iiy an irrcL'ulir meeting of dirccloi.s (A) ; 36. At tile instance of a simjile contract creditor to re^tr.iiii the loinpanv from dealing with its asHots as it pleases (/). 37. From paying a pension to the family of a deceased (^Hicer nl tli. company (m). n. Rceeivcrs. The object of obtniniiig a receiver is to protect pmpirlv and to instirc its due apjdication in accordance witli tlic vi«\iU of the persons interested in it. A receiver is not the saiiie ;h a manager appointed to carrj- on a business ; but wlicn nice;.- sary the same person will be ai)pointed receiver and iiiiiiiiiun. The Judicattire act, 1873, § 25 (8), authorises the appoint- ment of a receiver whenever the Court is of opinion that it u just or convenient to ajipoint one (h) ; but this general enact- ment is construed somewhat restrictively and with rcforoiicv to the principles on which the Court of Chancery iutcd lefuiv the Judicature acts came into operation {»). lieceivers of a company's property are seldom nppDintod unless ther(! are conflicting claims to be adjusttid, c.//., (li>- l)utes between secured and unsecured creditors, betwcciidc- benture holders and judgment ci-editors, between various classes of shareholders, ilc. When a company is being wound up the liquidator is a receiver of its assets for the bonciit of its shareholders and creditors ; but this does not prevent per.soiis liaving claims upon the assets in priority to the liquidator ((') Banned ijne v. Direct Spanish TdcmiphCo., 34 Ch. D. 287. An injunction wouM have been granted in this case hiid the proposed reduc- tion of capital interfered with the rights of preference shareholder*. Compare Taylor v. Pihen Liijht Co., 27 Ch. D. 268. (j) hie of Wvjht Bail. Co. \. TahonriUn, 25 Ch. I). 320. (k)- Browne v. La Trinidad, 37 Ch. D. 1. {I) Mills V. Northern BaiUvay of Biunns Ayres Cr\., 5 Ch. 021. (m) Henderson v. Bank of A hMM- asia, 40 Ch. 1). 170. ( 'oinpare cii.'c s cited ante, p. 590, note (7). (n) Just or convenicnl is ii>ii- strued just and convenient. Sep N^orth London Bail. Co. v. Gmt Northern Bail. Co., 11 Q. B. 1). 30 (0) Ibid. For the ellcct nf tli' ajjpointment of a receiver on tlio nature of a debenture holder's secu- rity, see ante, p. 197. For receiver? appointed at the instance of judgment creditors of a railway company, .y ail irrP'^Mlii liii llio conipary cd utl'icur uf til' )ioft iii'tipt'ily itli the vii;lits )t the Siimo as it when iit'ccs- and UKiiiii.L'ir. ; the iiii[ioiiit- nion that it is general cnmt- with I'cfui'eiit'o •y act I'd hefoiv oni appointi'd stcd, ('//., (lis- , between do- various classes wound up till' liencilt of its rovent persons the liquidiitor Ihink oj yiii-)- A receiver is an ofTieer of the? Court, and any interfereneo with him i>v with the property under liis proteetinu is pnnish- iilile a.s a contempt of Court. A person Avho desires to 'iif'(l Ilofd '''.,5(11. 4-iO. i'l) lliixsdl V. KtiKt AiiijJiitii T!'iil. '■".,;iMe. &(!. 104. ((/) J'ari.'^ Skatintj liinJc C.h., (i Cli. D. 715 1. (.') llinsmi v. /'(/('//, (i ]■:. if^ ]5. 273. (//) Xorrl.t v. Irisli Land C'n., 8 E. .'■) I'ai'tu. r)4.-) et .sv 1/. ; liohcrf.'f v. & B. .'512. /:''-/7i((,(//, Kay, 148. (z) Xtiriii'jtoii Li'r Cdud Co., 1 M. & H. 52!). (il) See 7i'. V. Lniuluiidi rrij, ., i:5 (,). !!. <)!)8; //. v. IFiiiij, 17 il). (it.') ; R. V. (ic until Vcmet-nj I'.'o., (i K. & 11. 41'), .niul ."^oe mite, p. Gl, and iii/ni, note /. (0 Ji. V. S'uldlerg' Co., ID W. 11. 87. See, also, A", v. irilln, dr., Maiui. Ji. -2. ('/) Set' ^)c';'Tin(lal, ('..!., ill Bill,. II awn Ihr.k Co. v. Uosf, 4 .Man. ^v (ir. f)")!). (/() Sue }>n- Paikc, 11., in ><.>'-'' V. (,m(re.i, 10 M. & W. r2\. (0 Cnrjic V. (11 11,1, -.i V,. & .U. 801 ; 7.'. V. St. Kafheriiii'. Ihd (V.\ B. & Ad. ;j<)0. (j) See 7i'. V. Victoria Purkr-J Q. 15. 288, where the mitiiil'iiin'-<\'-:- Cannl Co., 3 A. & 11. 477, ami 7.'. v Mariiiiiita, dr., Miiiiinj Co., 1 E. & refused, the ci editor beinj; in a i«- E. 28!). In the two la.st case.s, how- tion to i.-.'^iie exeeutii a fiyaiii.y sn (luin;^. Af utter V. Ea.iteru and Midhoah Hail. (/,:) 7i'. v. // 'hitstable ( 'o., 7 Ka.-t, 3.V;, Co., 38 Ch. D. 92, and the ciiscs (/) 7.'. v. Jlinik of Eunkml, :' there cited. Holland \. l>irl;snn,;il Doiij,'. .")24 ; 7i'. v. //Oin/ ■)( .Lw. ' ■ ill. (i()!),.«how.s that an injnnctidii will 5 15. & A, 8!!!). 7/. v, /.i/"' lie j^ranleil, and that u niandaiuus i.s Vallctj Hail. Co., 22 Q. 15. U. V<-): not necessary. 7i'. v. Shropshire, dr. ('nn(d ('"., I- 1' (/) Anon., 2 Str. G!)6 ; Da Cofta b Q. B. 420, antv, nnte ^/. liny cinpowin lor wliicli iuii:- MAN'DASll'S. (505 flbf I IniliUrs fill' tin' purpose of oimbliiif,' them Id (•diisiilcr wlatlii"' "k< HI. cIkiii. !•. II (lividiiiil shiill or sliiiU not bo dccliirt'd and piiitl (ni) ; to ~" I'oinitt'l it to nmko t'lills for the payment of a debt (h). The Queen's J U'luh hivision idone bus power to grunt the Dixi-Ktion uf . , . , ,1 , , , , . 1 ,. .. . lUe court, pivrofiiitivf writ (") ; and tlie ( ourt ni\H a wide discretion in I'laiitiiif^ or refusing it. No prerogative writ of niandanuis is allowed to go except to enforce houk! public diity(^)); nor unless the applicant has been denied the right he seeks to iiiforce (7) ; nor unless he applies for the writ within a reason- )il)It' time after such denial (;•) ; nor uidess the Court is satislifd tlmt its interference is sought for a proper purpose (.st ; nor luiliss the ap])licant having a legal right has no other ade(iMat(' li'f.'iil rouu'dy (/). It liiis been held that, although a corporation may be coin- iMJled liv imindainus to aflix its seal to a dociiinent («), it V<»iulaini»8 to , I 111 cnniiot hv thus compelled to remove its seal from a docu- mint (.(•). But it is submitted that the difference between doing and undoing, is, in such u case as that allude.! to, a (litl'oi'iiice in words rather than in substance. Registers of sliiuvliolders may be rcctilied both by inserting names wrong- liilly omitted and by striking out names wrongfully inserted, as has been seen already (^). 1 uilo, 7. Other MisceUtuicuiis Actiinis, Promoters of companies cannot maintain actions against each other for remuneration for their services unless there is 'ill) /.'. V. Hunk of Eiijlaiul, 2 13. & A. (IL'O. (h) H. v. I'idnria I'urL Co., 1 Q. (My Sri' (iliis^iiji V. Kixlmi l.iiriil ll„m1, Vl L'll. I). \^. 11."), iiud n. V. Liiiihuitrn Vitlliii liuil. Co., 22 <,>. li. 1). p. -lOi). As to tlu' luo.le of ;ili]ilirati()ii forsucli 11 writ, sue Cimwu ntiiei' liillos, 1886, IT. GOrtxnj. (/i) Sfi' the ciscs ill notes Ic to n, iiiitl Slmrtt on Mandanuus. (■/) /.'. V. //'(//>■, (!•(•., Cminl Co., ?. A. & E. 477. [r] U. V. Ciicb-nnoiith Iiii-lo: himself suhseribe for shares in the eompany (k). ^Vhere a company is requiretl by act of I'arliament to appK its first funds in defraying the expenses of its formution, an action lies against it by those who have expended their niuiuv, time, and trouble, in forming the company, and who liiuo Hd other paymasters. But a clause in a company's deed uf scUlt- nient or articles of association to the like effect, dues not necessarily have the same operation (h). Although the promoters of companies arc not iniplieiUv liable to each other for services rendered, nor for money ex- pended by any of them in the prosecution of their coiniiidii design ; still, if they render themselves jointly liable to a tliiiil party, and, by virtue of that liability', some only of them an compelled to pay what ought, as bettveen themselves and tiic others, to be paid by all, an action of contribution lies, at tlie suit of thost^ who have been so compelled to pay, agniusi tin' others ; and even before the Judicature acts it was no dlijcc- tion to sucli an action thai there were unsettled accounts which required to be taken, before what was due from cacli i.: ihc other could be properly ascertained {<■). If a person has agreed to take shares in a proposed corn- pan}-, and to paj' a deposit in respect of such shares, an action will lie for the recovery of the deposit he has agreed to i)ay ((/). The persons to bring such action are those with whuiu the Actions for tleposits agreed to be paid. {x) See llolmes v. Higyins. 1 P>. & C. 74 ; IFihon v. Cur::on, IT. M. & W. 532 ; MUhurn v. Coihl, 7 B. & ('. 419. ((() Lura.^ V. TJencli, 1 Jlan. & Or. 417. See, too, Caldicolt v. Grijfitlis, 8 Ex. 898 ; uiul Barndt v. Lambert, la M. & W. 48!}. Compare Gorfiitv V. il/(i)-n','!, 7 C. B. N. S. r)88, where tlie company wa.s never Ibrnieil, and tlie agreement was to pay the plaint ill in shares. (b) See ante, pp. 146, ct seq. (c) Boulter v. J'epluv; 9 C. B. 4!l:{ ; Jlatard v. Huurs, -2 £. & 15. 2^: ; luhjer V. KiHipp, 7 Jur. r)S;',, C. I'. It may lie oliscived here, that wliiiv tlie ijromoter.s of a company retain a solicitor, they are all liaMe to \v snc(l liy him for jiaymcnt ofliis liill. and that a delivery hy liiin of )"• hill, duly .signed, to any one ul'tlius>' liable, is a suihcient delivery to all, Mant V. Smith, 4 IF. i'.). {h) Auk', ]<.(>[, 121. (0 A, it,', p. 53-1. (/,) Ante, p. 487 et seq, (/) .l/(/f, p. 378 d seq. '() Ante, p. 427. (//) Aiitf, p. 437. COS TIIF, WINDIXG-Ur OF COMPANIES. BOOK IV. OF THE DISSOLUTION AND WINDING-UP OF COMPAXIEs. Introduclory, I!k. IV. Inti'mhictorv. TiiK reasons for which an ordinarj' partncrsliip is lield to be dissolved hy the death, lunacy, or hankrui)tc3' of any one of its niemhers, or by a transfer of his interest, or by his dctenuimi- tion to retire, have no application to companies the shares in which are transferable, and the management of the comcrns df ■which is entrusted by all the shareholders to directors. Nur is there any authority to the effect that companies with trans- ferable shares are or can be dissolved by, or on the hnppeiiiiiL,' of, those events which are sufBcient to dissolve, or iiidme the Court to dissolve, an ordinary 2)artnership. Tlie deiitli, bankruptcy, or retirement of a shareholder dissolves his cuii- nection with the company («), but does not dissolve the boinl by which the remaining shareholders are held to eiuli other {h). Some of the reasons which are suflicient to induce the Court to dissolve a partnership are, however, quite as appUeiiblo to companies as to ordinary firms, ejj., the impossibility of goiiiL' on as contemplated (c). KfTcct nf tiaiisfor But notwithstanding the often repeated assertion, tliat at L'oiupaiiy is not couimon law unnicorporated companies with transteraitle slmns incoi-ijoiaiea. ^^^,^ ^^^^^.^ partnerships, it ought not to be inferred that what i> suflicient to dissolve a partnershii) will also dissolve siuli a company. The personal relations Letween tlie menihcis ol' n company are very different from those which exist bctivitu ((() Six' Jifn-ijA v. ^milh, .3 llus . l.')8 ; (!nrn.', amended by 50 & 51 Vict, e, 43. ((/) See as to building societies, .'17 & 38 Vict. c. 42, §§ 4 & 32 ; and as tn industrial and provident societies, 30 & 40 Vict. c. 45, § 17. T-'-m M. 616 WINDING VV DY THE COURT. MincH in Stall uaries. Prnccedings iii bankruptcy. Bk. IV. Clmp. 1. unrogistorctl, liaving a principal place of business tlicrn— the • Court of Session in either division thereof (//>.) (<»). If, however, the Vice-Warden of the Stannaries certifus that, in his opinion, a company engaged in working u miiie within his jurisdiction would be more advantageously wound up in the Chancery Division of the High Court, then tho Court is such Chancery Division (§ 81). 'i"he Chancery Divisions of the ^tigh (Courts in KiikIhihI, and Ireland respectively, after making an order for wiiidin;' uj) a company, may direct all subsequent proceedings for winding up the same to be had in the Court of Bankruiitoy liaving jurisdiction in the place in which the vegistereil office of the company is situate (§ 81) (/), or, if the company is unregistered, in the place where it has a principal place of business (§ 199, cl. 1). The Court of Bankruptcy in Englaml is now the High Court or a count}' court (/). Further, by the Companies act, 1867, the Chancery Division of the High Court in England has power, where it makes an order for winding up a company, to remit the subsequent pro- ceedings to a county court (§ 41 et seq.). When these powers are exercised, the Court in Bankruptcy, or the County Court, as the case may be, becomes the court for the purposes of winding up the company, and has all the powers of the Chancery Division of the High Court (g). The Court of Chancery of the Palatine Duchy of Lancaster has power to wind up companies whose registered offices m- within the limits of its jurisdiction (/i). But the jurisdiction of the Palatine Court is not exclusive (i). County couit. Duchy of Lancaster. SECTION II.— COMPANIES WHICH CAN BE WOUND UP BY THE COUIIT, OR SUBJECT TO IT3 SUPERVISION. Under the older winding-up acts, questions of considerable difficulty arose with respect to what companies were within (e) See, also, Companies act, 188G, 49 Vict. c. 23, § 5. (/) See 46 & 47 Vict. c. 52, § 92. ((/) See the statutes, and Ex jiarte Hirtzel, 2 De G. F. & J. 053. 17 & 18 ib. c. 82, the Court of Chancery of Lancaster acts, IMO and 1854, and the general orders of that Court. (t) Lancashire Co-operative Build- {h) See 13 & 14 Vict. c. 4 5, aul ing Co., W. N. 1867, p. 246. COMPANIES TO WHICH TIIK ACT Ari'I-IKS. 617 thpir provisions. Tims the 7 it 8 Vict. c. Ill, applied only to "k- ^^^^^^^^ ^• coiniaerciiil unci trading (•ompanios(/i); and whether the Wind- iii"-up act of 1848 applied to companies not falling within the same description, was hy no means free from dimbt (/). The ■\Vin(linf,'-up act of 1849 greatly extended the operation of the act of 1848. But, notwithstanding tlu; very general word mocuttioit, used in these acts, and although they extended to iissociations which were neither partnershi|•) Bradford Navigation Co., 10 Ei|. 331. Tills case was appealed, but the appellant was not entitled to be heard, see 5 Ch. 600. (s) Exmouth Docks Co., 17 Eq. 181. (t) See ante, p. 116, note (p), and §§ 79, 180 and 196 ; and Ennis and West Clare Rail. Co., 3 L. R., Ir. 94, where such a railway company was wound up. The Court, after a lonj:; examination of the various statutes and authorities, expressed a strong opinion that such a company might lie rcgi.'*tcri'd and Wduml u]i, liiit decided the case on the giduml tl:,it § 192 of the C(Jiiiiiiini(.'S ad, iMc', precluded them from going iichiinl the registrur'.s certiliciite. (u) As to what is a niilway com- pany, see E.cmouth Jhrh Co., 17 Ei|, 181. A dock company Inivin;,' ;i railway was there lield nut to lu a railway company, and was ordLTitl to be wound up ; but compare (.'kii' Northern Rail, Co. v. Tahounliii, 13 Q. 13. D, 320 ; East and Wtd India Dock Co., 38 Ch. D. fj/G. In Brentford and Isleuvrth Tramm'j< Co., 26 Ch. D. 527, a tramway com- pany was held not to he a railway company, and was ordered to Ic wound up, though incorporated by a special act and not registered, (z) See 32 & 33 Vict. c. 11-1, §^; 30 & 31 Vict. c. 127, §31,f/«{.; 13 & 14 Vict. c. 83. See iiijro. c. 4. (?/) They were, if furmed f'f working mines in Cornwall, wIijH}' ?t !« coMi'ANii'.s TO wmcii riii; a< r Arri,ir,s. 010 I'Vioinliy sdcit'tit-'s, Imilditij^ Hocictitis, ami iiuliistrlal mid '•'■'■ ly- ^'j'U'- '• ni'ovidciit soc'icticH, wliothor rot,'ist('ri'(l uiidor 25 I'v 2(5 Vict. - " — • c. 87, 37 ^' 38 Vict. c. 12, or }J'J i^ 40 \''ict. r. l/), or not, may Sociutius, ic. be wound ui» uiidi'r tho provisions of tliii Companies act, 18G2 (:), I)iit as ri'gards registered hnilding and indnstrial societies the court having jurisdiction is tho County Court ('()• Scrip companies have been ordered to be wound up under SlmIp companic.!. tli(! older acts (l>) ; and it is apprchendc-d Unit they can also be wound up under the act of 18(52 ; for altliough shares trans- ferable to bearer, and not paid up in full, cannot be validly created under the Companies act, 18(52 ; yet it by no uumuis follows that a company with such shares cannot be wound up {<■). A company which has been dissolved, but tho members Dissolvcil uf which lire still under liabilities hu'urred before the dissolu-*^"""" tion may be wound up ; and orders have been frequently made for windiiif,' up companies which have amalgamated with, or ixcepteJ from the act of 1848, us it (irigiiiiilly stood, see ] 1 & 12 Vict. c. 4.'), § i ; /;./■ jiaric Ji'illd, 1 Mac. & G. 1. I'liivisiou was, however, iiftonvards umde for wiiidin;^ them up in Chimci'iy in ceituiu specified . cisis, 12 & 13 Vict. c. 108, § 1 ; 20 i21 Viit. c. 7S, § 12. See, oil this siiliJL'ct, lUnwoi-tliijii. Mininij Co., 20 L. J. Cli. U12 ; Wheal Anne Minimj '\ 10 W. 11. 330 ; and as to the ii,:^lit of creditor.s to oppose, see Tfdoil and Messer Mininy Co., 2 J. i II. 421. Cost-hook companies funned for working mines in De- vonshire might be wound up in Chancery even under the act of 1848, see S^ulh Lctdy Bertha Mining '\ i i. k II. 376. Companies formed on the cost-book principle, imt not for working mines within the jurisdiction of the Stannaries, were clearly within the Winding-up Mi of 1848 and 1849. See, now, o:i & 33 Vict. c. 19, and 50 & 51 Vict. c. 43, § 28, and ante, p. 615. (.-) See Queen' a Umijit JJuikUnij Hoc., 6 Ch. SI.") ; I'l'dfixiioniil, etc., JIuililinu y its own members without any judicial assistance. Moreover, it must bo remembered that if a com- pany is illcj.(al simi)ly because it is not registered, the im- pediment to being wound up can be removed by registration. A company formed and registered under the act can jjo wound up under it, although the subscribers of the companv's memorandum of association may be all foreigners resident abroad, and although the objects of the company may Le mainly the transaction of business abroad (r). It 1ms been doubted whether the Court can wind up a companv registered under the act, but shown by its own memoraiidiini and articles to be formed exclusively of foreigners resident abroad for the transaction of business abroad (s) ; but admit- ting that such a company ought never to have been registered, its continued existence as a registered company cannot appa- rently be stopped except through the machinery (;f a winding.'- up order. A company formed and registered abroad, and having a branch office (t) in this country, but not registered here, may be ordered to be wound up under the Companies act, 18G2 (»i; and the fact that steps are being taken to wind up the com- (7) Compare the last case, and Ex jxtrfe Jlanjvovc, 10 Cli. 542, with the observations of Jessel, M. E., and Brett, L. J., in I'mlstov Total Loss AssncHition, 20 C'li. ]). 137, at pp. 143 & 140. It shonld be borne iu mind tluit winding np is the modern substitute for an action and ^:ci. fa., as to which, sec ante, p. 277. (/■) General Co. for promotion of Land Credit, !) Ch. 3(i3, and Princess of Itcuss V. Bos, L. E. 5 H. L. 170. (s) Prinrcss of licuss v. Bos, L. E. 5 11. L. 176. (t) In Lloyd Gencrale Italiano, 2!) Ch. D. 219, Pearson, J., refused to make an order for windinp; up a foreign company which had no branch office in Em^dand, but carried on business heie by agents. Compare the cases in tlie next note. (i() Commercial Bank nf /nrfio, C Eip 517 ; Cvnninrcial Jlanl: of ^nvih Australia, 33 Ch. D. 174 ; Matlui^'i. Brothers, Limited, 27 ('Ii. D. -I-Sk And .see the followiiii; ca-fs uiidrr the older acts : a Spanish Eail. Co., Ex parte Turner and James, 3 DeG. & S. 127, and 2 Mac. & G. Kii) ; ;i German Mining Co., E.c parte t'/i.'j- pendalc, 4 De G. M. & G. 19; a Mexican Mining Co., llarclaifici.''. 20 Eeav. 177 ; a Calcutta Baiik.sp,' Ex parte Watson, 3 De G. & S. 253, where, liowever, no order wa? made ; au Indian Eail. Co., h parte JVolesey, 3 De G. & S. 101 ; a Belgian Eail. Co., Ex parte Mosi, U Jur. 754. COMPANIES TO WHICH THE ACT APPMES. 623 illegal company •ut any jucliciiil that if a com- istcvL'd, tliL- iin- y registration, the act can be ' the coinpanv\ signers resident )mpany may lie id {)'). It has up a company u memorandum signers resident (s) ; but admit- been registered, ny cannot appa- ry of a winding- 1, and having a itered here, ma\- es act, 18G2 (id; nd up tlie coni- lases in the. next Bank nf IniliuJ', rial llaah dj &)vA D. 174 ; Matkem ', 27 C'h. D. -li:: iwiiii,' casus uiidd' Spanish Rail. Co., Old Jaiiu's, .'3 Du (i. Mac. & G. ICl) ; ;'. i., Ex parte Vhq.- M. & G. 1!) ; :! Co., llimhvfso.if'. L'alontla Baiiii, St'.' !, 3 I)e G. & S. ver, no order was au Eail. Co., E: )e G. & S. 101 ; a Ej: park Moss, 14 nanv ill the country in which the company is registered does Ck. IV Cliap. l. not affect the jurisdiction of the English court (x). But the writer apprehends that it is not competent for any court in this country to dissolve a corporate body created by a compe- tent foreign authority ; and a foreign corporation, therefore, cannot be wholly wound up and dissolved in this country. At the same time, if a foreign incorporated company were re'^istered, the corporate body created by registration might be wound up and dissolved without any undue exercise of jurisdiction. If a company which ought not to be ordered to be wound up is nevertheless ordered so to be, the validity of the winding up order can only be questioned (at least by the company or a contributory) by an appeal ((/). Other cases on the older itdi^. The fuUowing note of otlior decisions on the ails of 1848-9 is appended for reference : — The general words parlner.sliiiM, associations, and conipauie.s, were licld to iii'lude projected, but abortive, railway and other companies, provisionally registered under 7 & 8 Vict. c. 110 (v). l^ut as the siibscriber.s to abortive companies are neither partners nor quasi-partuers, it followed, that, unless they had done something whereby they liad, as between themselves, in- cmied a liability to contribute to the demands to which they were respec- tively subject, an order to wind up a company, never in fact formed, was useless ; for, except in the case supposed, there could be no con- tributories («). Irish companies were specially provideel for by 4 & a Vict. c. 45, § 17 (i). Seotcli cunipanies were not .subject to the acts at all (r). (.f) Mathcson Brothers, Limited, 27 Cli. 1). 225 ; Commercial Bimk of )urte James, 1 Sim. N. S. 140; Exixirte JFoolmer, 5 De G. & S. 117, and 2 De G. M. & G. 665 ; Ex parte Barber, 1 Mac. & G. 176 ; Ex parte Tamer and James, 3 Di; G. & S. 127, and 2 Mac. & G. 109; Ex parte Besley, 2 ^Mac. & G. 176 ; Ex parte Holinsicorth, 3 De G. & S. 7. ((t) See Ex parte James, 1 Sim. N. S. 140 ; Ex parte Besley, 3 Mae". & G. 287. {b) Ex parte Fisher, 3 De G. & S. IIG. (c) 11 & 12 Vict. c. 45, § 127, and 12 & 13 Vict. c. 108, § 40. 624 WINDING UP BY THE COURT. Bk. IV. Chap. 1. Sect. 8. Creditors. SECTION III.— PERSONS AT WHOSE INSTANCE A WINDING-UP ORDER WILL BE MADE. Under the Companies act, 1862, an order for winding up a company, may be applied for by all or any of tho followinif persons, viz. : — 1. The company ; 2. One or more of its creditors ; 3. One or more of its contributories ; and every order made on anv petition operates in favour of all the creditors and all the contributories of the company in the same manner as if it had been made upon the joint petition of a creditor and a contributory (§ 82). A company required to be registered is not entitled, wliiLt unregistered, to apply for an order to be wound up(*'). Any creditor (/) of a company is entitled to petition for a winding-up order, and it is not necessary that his debt should be of any particular amount ; but, as will be pointed out in tlic next section, the evidence which ho must adduce in support nf his petition depends on the amount of his debt. A landowner who has a claim against a company for purdiasc- mone}' and compensation in respect of lands taken by tlio company under the Lands Clauses act, is not a creditor of the company until a conveyance has been executed (7). Ai> assignee of a debt is entitled to petition (/<), and an executor of a creditor may present a petition before he has obtained probuto of the will (?'). A secured creditor may also present a iietitiou ■without giving up his security or losing any of his rights {k). («) See § 210, and Waterloo As- surance Co., .31 Beav. 5SG. In this last case the company was ordored to be wound up on a contributories' petition ; but the company was not illegal : it had been formed and re- gistered under 7 & 8 Vict. c. 110. ( f) See,a3 to disputed debts, I'li/ra, p. 637, a person claiming unliqui- dated damages, and whose claim is disputed, cannot obtain an order, Pen-y-van CnUienj Co., G Ch. D. 477 ; Gold Hill Mines, 23 Cli. D. 210. (;/) Milford Docks Co., 23 Ch. 1>. 292. (/i) London and IlirminghM All:aliCo.,lDeO.V.&.J.-2i>l. (i) Masonic ami General Life -Is- surance Co., 32 Ch. D. 373. (k) Moor V. Anglo Italian Bad, 10 Ch. D. G81. I'EUSONS ENTITLED TO I'ETITION. 625 ING-Ur ORDER ■\Vhetlici' a debenture holder is entitled to present a iietition ^'^- ^^'- ^^''^P- ^• . . Sect. 3. depends upon whether he is entitled to enforce payment of the debenture by an ordinary action for a debt due and i)ayuble by holders, the tomimny. 'I'hus in Exmoutk Dorks Co. (1), and J feme Ihti/ W'ateywnrhs Co. (m), it was held that the rights of the debenture holders were by the statute, under which the debentures wore issued, limited to obtaining the appointment of a receiver, and that they were therefore not entitled to a windijig-up order ; so in Vnuiuaij Central iC Ilijcjucritas Rail. Co. of Monte Video {n), the holder of an instrument described as a mortgage bond was held not entitled to a winding-up order, on the ground that he was not a creditor of the company, the covenant to pay being entered into by the company with the trustees of a covering deed, and not with the bond-holders themselves. On the other hand, in Olathc Silver Mining Co.(o), where there was an agreement by the company with the bearer of the debentures to pay him, a debenture holder was held entitled to present a winding-up petition. Under the Life assurance companies act, 1870, the holder Tolicy holders of a policy grunted by a life assurance company may petition fill' the winding-up of the company if it is insolvent, although tile poliey is not yet due (p). The meaning of the word contributory will be examined Contributories. hereafter; for the present purpose the term includes an all(>ged t,.'ij*,fto,ies"" contributory (see § 74). Ihit the legislature has not said what sort of allegation is to be regarded as sufficient; an tulmis- siou by the petitioner that he is a contributory in respec of at Itast one share, seems, however, to be necessary {q). It may, hiiwever, be remarked, that several of the older cases in which orders wore made under the Winding-up act of 1848 on the Itetition of the subscribers to abortive companies could not be ^llpported at the present day, upon the ground that the peti- hcki Co., 23 Ch. 11 (0 17 E(i. 181. ('") 10 Cli. I). 42. ('!) 11 Ch. ]). ;372, explained in '''"'Ihf Sikcr Minim/ Co., 27 (.'li. I). ^"] 27 Ch. r>. 278. '/'J3;i&:54 Viet. c. e],§21. A pulioy-liulder iu luJcs an auuuitaut, L.C. .see § 2. See, also, 3.") & .3(i Vict. c. 41, § 4, as t(i sul):-i- 9()2 ; Lancashire Jlrick aiulTikC .. 34 Beav. ^30; Patent Art ijimlfhh'- Co., ih. 18.5; Cheshire Patent StxltU. 1 N. K. 533. PERSONS ENTITLED TO PETITION. 627 Uance of a con- V person who 1ms been declared by the Court to be entitled ^''^- ^^'- '^''■M'' i- * ^ . Sect. ;t. to be a shurcholder, but who, owing to the negligence of the rompany, has Jiot been registered, is entitled to petition for ;i winding-up (^). A scrip-holder is not entitled to petition for a winding-up Scrip-holilers. Dider unless he is, or admits himself to be, a contributory (a) ; or unless there are surplus assets which he has a right to have ilisti'ibnted. Under the Building societies act, 1874, any member autho- Uuilding societios. lisod by three-fourths of the members present at a general meeting of the society specially called for the purpose, and any judgment creditor for not less than fifty pounds, may petition to have the society wound up, tither voluntarily under the su- pervision of the Court, or by the Court ; but no other person may do so (/») . The followiiif; persons were held entitled to petition under the Winding- up acts of 1848 and 1849 ; and the decisions in their cases may be U3(!fully rtferreil to cm iiuestions arising under the act of 18G2 : — A scrip-holder of a provisionally registered railway com]iany, ■who liail not signed either the subscribers' agreement or the parliamentary rt'iitract (f) ; An original subscriber for shares in an abortive company, and :i niendier 4 its provisional committee ((/) ; A menilier of tlie managing committee of an abortive tumpany, who had Uon compelled to pay thV; charges of the company's solicitor, but who had not taken any shares (e) ; \ A memlier of a company who had not paid his calls (/ ) ; A manager of a cost-book company, who was a creditor of the company for advances made by himself (anl\rupt ait, mi nrlir was refused, Mie trustees of tlie deed of airaii''('nienl not Imviii" li, served (/). Ciroumstanccs miller wliioli a cmiii) .ny may Ijo wound up, <() Wlien rcaistoreJ. b) Wlicn unrc''iiitcrcd. SECTION IV.— THE CI11CDM3TA\CI« U.VDKR WIIIOIl A COMPULSuIiY WIXI)IXG-UP ORUm WILL 1U-; MADE. A compaii}' registered under tlie net may be wouiul up bv the Court, i.e., compulsorily under the following ch'cumstances (§ 79) :- 1. Wlienever the company has passed a s[)ccial resohitioii, requiring the company to be wound up by the Court ; 2. Whenever the company does not commence its business here or abroad (if its object be to carry on business abroiuli within a year from its incorporation, or suspends its business for the space of a whole year (m) ; 3. Whenever the members are reduced in imniber to less than seven ; 4. Whenever the company is unable to pay its debts ; 5. Whenever the Court is of opinion that it is just aiil e(piitable that the company should be wound up. An unregistered company (except a railway company) iimy be wound up if it has not less than seven members (h) (^ lli'.', cl. 3)— 1. Whenever the company is dissolved, or lias ceaseil tu (i) Pc Xonrich Yam Co., 12 Beav. 3(iG. (A) Timi'.i Fire A>isurancc Co., ',]0 Beav. 596. (/) Ej- park Walhr, 3 De G. & S. 2. {ill) S(e Capitdl Fire Insurance Axsociatioii, 21 Ch. D. 209 ; Tama- cacori MiniiKj Co., 17 Eq. r)34 ; Metropolitan Eailwaij JFarehouse Co., 15 W. R. 1121, L. J. Aban- doning part of tlie biisine.-s is ii"t enough, Norvejian Titanic Iron ( •., 35 Beav. 223. Nor is a tfmi)Ovaiy suspension of business with the i on- iu'wt (if a largo majority nf sli:i'''" bolder.s, Miihlli'shoroiajh AmiAU lloomis Co., 14 Ch. D. 1(»4. (;() nolfon Benefit Luun ,sViVfy,l.' Ch. D. ()79 ; Soiilh London /'-Wi Markt Co., 39 Ch. U. 324. Gnouxns ron winoing vv. 029 )ers tlienif!elve8(i, ; luiil entered into ijit art, im nrli-r . not liuviu'' Ijrrii A COMPULSORY )e wound up liy igcirLUUistiiiK'L's ocial resolution, Court ; ince its business lusiiu'ss abi'Diul) nds its business number to less ts debts ; it is jnst iiiil company) may oers («) (§ ID'.'. lias ceased tu :lie business is imt in Titanic Iron (''., ,'or is a temiioraiy ^iuL'ss willi the "li- niajority nf ^l"'"'- ■sliDivKfih Ai'ieiiAi'i 1. D. 104. • Ht LiKiii .ViVf;/, 1- oulli l.oitduii i'''l' li. U. 3^4. caiTV on l)usinc!ss, or is carrving on business only for the ^^- IV. Chap. 1. purpose of wnidnig up its athiirs (o) ; •2, Whenever the company is unable to pay its debts ; !j, Whenever the Court is of opinion that it is just and equitable that the company should bo wound up. Further, by the Companies act, 1880 (43 Vict. c. 10, § G),' tiie registrar of joint stock companies is empowered, aftei- the necessary nt)tices ha\'e been given, to strike off the register the iiiuue of any company which he has reasonable cause to think lias ceased to carry on business, and on notice of this being piiblislied in the Gazette, such company is dissolved. The act declares the circumstances under which a companj' In.iiliity tn is to be deemed unable to pay its debts, both where the ' ''^ "^ ' **' company is registered (§ 80), and where it is not (§ 109, cl. 1). The circumstances mentioned are, in the case of registered a) In case of companies, in substance as follows (§ 80) : compauies. 1. "Whenever a creditor for more than 601. has served on the company a demand, under his hand, requiring the company to pay the sum due, and the company has for three weeks afterwards neglected to pay, or secure, or compound for the same to the creditor's satisfaction ; 2. Whenever execution, issued bj' a judgment creditor against the company, is returned unsatisfied ; 3. Whenever it is proved, to the satisfaction of the Court, that the company is unable to pay its debts (p). coiiiiianies. In the case of unregistered companies, two other circum- b) In case of stances are added {q) (§ 109, cl. 4), viz. : unro.'istcred 1. Whenever a member is sued for a debt of the company, and notice of the proceeding is served on the com])any, and the company has not within ten days paid, secured, or compounded tor the debt, or procured the proceeding to be stayed, or iiulemnified the defendant to his satisfaction against the same, and the costs thereof ; 2. Whenever, in the case of a company working a mine (o) See Familij Kmhncment Soc, Co. of Utah, 20 Efj. 268 ; Globe Kerv 5 Ch. 118, wiiicli liail transferred its ratent Irott, <0c., Co., 11). 337. business to auotiier company. ((/) The sub.stanco only of the sec- (p) Tiiis lets in any evidence of tion is attempted to be here given, insolvency, Flagstaff Ullvcr xMiniiuj 680 V'INDINO VV MY Tlir, COItHT. Rnilway comiiauy. DiBcrctinn of Court. Bk. ly. Clinp. 1. within tlu! jui'isdiction of tlic Stanimrios, ii customarv (leorcn Sect. 4. ■ , 1.1 J — ■ or onlor iibsoluto lor the salo of the efi'ects of tlic mini In, been iniule, in ii ci'cditor's suit, in the Vice-Wiirdon's (Jomt. Further, in thtt case of an uinvf^'istered rail\Vii\' coinpam there must he a warrant for the abauduinneiit i>{ tin railway (/•)• In connection with the above enactments, it is necessary tn advert to section 8G, which empowers the Court, upon hoiirini; a petition for a winding-up order, to dismiss the siiuie witli or without costs, adjoui'n the liearing conditionally or un- conditionally, or make any interim or other order tliat it deems just. Moreover, by sections 91 and 149, the Court is empowL'icil to have regard to the wishes both of the contributorios and of the creditors, and to have meetings called in order to ascertain such wishes (s). It is obvious, from the foregoing provisions, that in all cases the Court has a very wide discretion as to what it will do when applied to for an order to wind up. But wide as the discretion is, there are certain principles by wliicii the Court is guided, and which reduce the practice on tlii-; subject to reasonable certaintj'. These principles will Ijc best expounded by considering first the circumstances under wiiicli the act declares that a winding-up order can be made, imJ secondly the circumstances by which the Court is usually influenced in exercising its discretion as to the courso it will pursue. 1. Circuiiistunceti undur which a winding-vp order nan be vauk. No ccmipany can be wound up by the Court except in tin cases specified above (<), and of these the only two which h:i\v given rise to difficulty are thus expressed : 1. " Whenever it a proved to the satisfaction of the Court that the company is iin- able to pay its debts." 2. " Whenever the Court is »} opinion that it is just and equitable that the company shouU he ujound up." (r) 32 & 33 Vict. c. 114, § 4. (s) This power can be exercised on the hearing of a winding-up petition, Western of Canada Oil, d-c, Co., 17 Eq. 1. (t) Langliam Skatin^g Eiuk Ct.,' CI). D. (j(i9 ; Cork Shinping ar-l Mercantile Co., 7 L. R. Ir. ^i^- OROUNDS FOn WINPINO VV. 631 innavy docrc" Llic mini In , oil's (Joui't. way compuny inent ul' the .a necessary to upon heiinivi the Slime witli lOUiiUy or un- order thai it , is cmiiowortil butories and of ■tier to uscertaiu oing provisions discretion as to ) wind up. But iiciplea by which practice on thi^ pies will be best ces under wliich 11 be made, iukI lourt is usually le course it will van bt made. vi except in tko two which hiiV'/ " Whenever it n te covqnnnj is ««■ the Court is w' company shouU 1. Skatirui Eiuk (.V.,' Cork Shirvm ""' |7 L. R. Iv. H^. Tho dilVicultv as to insolvency has lioon to dctcnniiie '"'<• ly^ '^''"i'' ^' Hoct. I. wlicthor i)nispoi'tivo debts ouffjit to bo tiikon into iiccount. ,., PI I. ,..!■ Innl>ility to This point was discussed in tlio enso of tlio hitrojiran L'./t' j,ay dubis. Imranri! Society (it), and it was there decided that by Kuropctm Lifo As.suranco iimljility to pay debts was meant inability to pay debts Society. actually due and payable ; and that liabilities under sub- sisting policies were not to be reckoned : and this construc- tion of the clause in question may bo taken to bo correct, althoufjh it has been since enacted that in considcrinj,' the solvency (jf life insurance companies, the Court is to tako into account the c(Uitiiigent or " speetivo liabilities under ]ii)licies and annuities, and other existing contracts (.<•). In considering the question of insolvency, uncalled-up capital Position of must be estimated as an asset ; and unless there is evidence to ''''^" show that it cannot be recovered it will bo estimated at its full iiominal value (//). On the other linnd, the paid-up capital of u comiiany is not a debt within the meaning of the statute (^) ; it is not a debt of the company in any legal sense. Assuming a companj' not to be insolvent, circumstances may 2. Just ami nevertheless exist to render it just and equitable to wind it up. wind uii!^ It is obvious, from the context of the act, that the words, "whenever the Court is of ojiinion that it is just and equitable that the company should be wound up," were intended to iipply to cases other than those previously enumerated ; and it has hcen decided that, wide as. the words arc, they only apply to cases resembling some one or other of those before described. Unless, therefore, a company can be brought within one or more of the previous specific provisions, or unless there are questions to he settled and rights to be adjusted which can only be settled and adjusted by converting into money the assets of the company, whether actual or raiseable by calls, and l)y dis- cliarging the company's liabilities, distributing tli(! Kuri)lus assets and finally dissolving the company, the Ciiirt will not ivder it to be wound up (a). ' :) 9 E(|. 122. (.t) See § 80, and § 199, cl. 4. ( 3:5&34 Vict. c. 61,§ 21. (a) Tlv^ Aqriculf}iri.< tlnir powers, t'.;/., hy annilgamatin;^' with another con k), tlip Court will leave the petitioner to such other remedios, if miv, as he may have, and will not make a winding-up order iiiil(-.> the liabilities of the company arc such as to render il unr>- sary or expedient to have recourse to a general wiiuliii^f-iip. At tlie same time if it can be shown to the satisl'iictii n of the C'ourt that a company, although not insolvent, oii^lil to hv annihilated, the Court will order it to be wound up. Proof of inability to commence business after the lapse of a \t'ur('/), continuing fraud (c), improper registration ( /'), will induce the Court to put an end even to a solvent company. In a case in which a company had been fraudulently got iip, and was kept on foot b}' fraudulent practices, the ' J. AVikhI ordered the company to be wound up at the insti '^a con- tributory, although the company had only existed three or four months, and although it consisted of only eleven members, auil although the majority of them desired to go on, and altlioiitjli it was not proved that the company was unable to pay its debts (//). The evidence showed that it would be unjust iiml inequitable to allow the company to go on. Again if it be proved to be impossible for a company tu carry on the business for which it was formed, tlie Court uill order the company to be wound up even though it has been in existence less than a year and is solvent ; and the fact tlint the majority of the shareholders are opposed to the petition, Drew. 405 ; Suburban Hotel Co., 2 Cli. 737 ; Diamond Fuel Co., 1.3 Cli. D. 400. See, also, tlie other cases reiVrred to in the summary of ca.'^e.s at the end of this section, under the head " Petition dismissed, (Company not Insolvent." (6) Anglo-Greek Steam Co., 2 Eq. 1 ; J'^x jiartc Wise, 1 Drew. 405, (r) See Irritjation Co. of Fmno: >'> Ch. 170. (d) Tumacacori Miviiig Co., I' E(i. 534. ((') See infra, note ('/). (/) Ante, p. 622, note (r), (f/) London and County CoalCo.,i E(i. 355, nnoiiNDs Fon windinmi in'. 68a (loos not fiflV'ct the question, for ii miijnrity liowcvnr lurj,'(' has I'-k. IV. Chap. 1. . . , ^ 1 1 • 1 • ■ . Sect. 4. 110 iiiiwiT to lorce a miiionty to t'lubark m u busmt'Sii into — rtliicli it Ims never undertaken to cntiT (h). 'I'lu; greatest (lifKculty, however, is felt in eases where there Company not lire no such cireunistauces ns those just hUikKmI to ; hut wliure i"""!'""""' a couipimy is not prospering. WliiTe a eonipany's assets are snflieient to meet not merely its iictual debts, but also its exisliiij, Hi Ch. D. 246. If a wind- inf;up order has been made, it must 1* discharged before the Court pro- feeds under this section. [t) Great Britain Mutual Life As- maim Socia>j, 19 Ch. D. 3!), alfd. . (») See this very clearly laid down in Metropolitan Saloon Omnibus Co., 5 Jur. N. S. 922. (x) See Wrftcrn of Canada Oil Co., 17 Eq. 1, and the cases cited infra, notes (c) and (h). 636 WINDING UP BY THE COURT. Bk. IV. Chap. 1. i),it if otlici' creditors oppose the petition and it appears that tlio petitioning creditor will gain nothing bj"- a wiiiding.up order, the petition may be dismissed at once (/y), or orlered to stand over (z). The opposition of the company, or the wishes of the contributories, go for little in snch a case (d) : uor docs the fact that the contributories desire to wind up voluntarilv (//) usually induce the Court to abstain from mak^ag a compulsorv order ((•)• The smaller, moreover, the assets of tlie compaiiv, the less reason is there to attend to the wishes of tlio contribu- tories ; for where a company is clearly insolvent, its assets mav be regarded as belonging rather to its creditors than to its members (J). But if the assets are very small and tlie com- pany is being wound up voluntarily, the Court may make a supervision order instead of a compulsory order, unless the creditor shows that he would be prejudiced thereby (c). The fact that the company is substantially a foreign com- pany, and that there will be great difficulty in windin;^ it up, is not sufficient to justify a refusal to make a winding-up order ( /'i ; and a winding-up order may be made even though windiiig-uii proceedings are pending abroad (g). If, however, the Court is satisfied by proper evidence that the majority of the creditors of a company are of opinion tliata compulsory order to wind up is not desirable, the Court will give eftect to their wishes (/() ; although where there had been Creditors (liTided in opinion. (;/) Uriifiuay Central, dr., Ritil. Co. of Montr Video, 11 t'h. 1). 372 ; Chapel House Colliery Co., 24 Ch. D. 259; The Free Fialurmeii of Fuvcr- sham, 3(! Ch. D. 32!). (,:) Great Western Coal Consumer.^ Co., 21 Ch. D. 769 ; Olathe Silver Mining Co., 27 Ch. D. 278. («) See the next lour notes. (/j) Central Rolling Stoc/c Co., 34 Beav. 314. (c) However, in the Brighton Hotel Co., G E(i. 339, the Court gave the company lime to make some arranj,'e- Mient for paying,' its creditor;". Ho, also, in JFestera nf Canada Oil Co., 17 Eh Ati.^tralia, 33 Ch. D. 174 ; .1/,((/i'.v"ii Brothers, Limit) d, 27 Ch. T). 22"). (A) Olathe Silver Mining Co., 2i Ch. D. 278 ; Chapel Houso (Mfti Co., 24 Ch. D. 259 ; Creat n'e.eiiture-lu)lilei-, and no application luul been nuule lorareceiver. Aud see per Fry, L. J., 3G Ch. D. 347. (?i) In Cerclc Restaurant Castirjliune Co. V. Lnvery, 18 Cli. D. .555 ; Nvja- Merchants Co. \. Capper, ih. bbl note, aud Cadi:: Waterworks Co. v. Jlarnett, 1!) £([. 182, injunctions weiv granted to restrain the presentation of a petition, and in (;(dd Hill Miia.t, 23 Ch. 1). 210, the ix-titiun was dis- missed on motion, aud all proceed- ings under it stayed. As to malici- ous petition.s, .xee ante, p. 014. (o) Gold Hill Mines, 23 Ch. 1). 210; London and Paris Hankimj Corporation, 11) E(i. 444 ; Lmuhni ll'harjinij and Warclnatsimi Co., 35 ]lea\'. 37, wlu'ie twenty-oiio days after demand had <• lapsed ; Catholic I'ldilishitiy Co., -2 ])e C. J. & 8m. llti, where they had not. See, also, I'en-y-vau Collierij Co., U Ch. i). 477, ante, p. 624, note (/). 688 15k. IV. Chap. 1, Sect. 4. Judgment creditor. Creditor a member seeking an unfair advantage. Amount'of debt. Ground of petition. WINDING VV BY THE COURT. established ( j)). Pint the Court will itself judge whether the debt is disputed siniph' to get rid of the petition, or bond fid,' because it is not due (q), and unless the company adduce such evidence as will show that there is a question to be tried a winding-up order ought to be made (/). Even if the petitioner has obtained judgment against tlio companj', still if there is evidence to show that the judgnieut was obtained bj' fraiid, and the petitioner declines an iiKiuirv on the subject, his petition will be dismissed {s). At all events, a Avinding-up order ought not to be made in such a case with- out giving the company an opportunity of impeaching the judgment. Where the petitioning creditor was himself a member of tlie company, and the debt due to him was due by the rules of the company, and the company was solvent, and the object of the petitioner was to force the company to pay him in preference to other members in the same position as himself, the Court refused to make a winding-up order (0- Except in the case of building societies («)> it is not uoccssarv that the petitioning creditor's debt should amount to 50/. ; but if it is of less amount he must show that the company is unable to ])ay its debts by some other evidence than non-payment of himself within three weeks after demand. A judgment debt of less than 50/. followed by an unsatisfied execution has been decided to be sufficient (.r). If non-payment within three weeks after demand is relied upon, that period must have expired before the presentation of the petition (,(/). Inability to pay debts is, in a creditor's petition, the ground generally relied upon for obtaining a winding-up order; but (2?) Rhydijdcfed Colliery Co., 3 Dc G. & J. 80 ; Inrentors' A.^soriatio)i, 2 J)r. & Sill. !')!)3. See, also, Jh-iijhfon Club and Norfolk Hotel t'o.,.^ Beav. 204. (5) Kin(j\'< Cro^i Industrial Ihirl- lings Co., 11 Eq. 149. (r) Great Britain Mutual Life As- stirancc Society, 10 Ch. D. 246. (0) llr.pe Miitml Life Assurance Co., 1 N. H. 542, L. J., and Ihwes V. Same Co., 11 H. L. C. 389. (0 Planet Benefit BnihUny &.r.,14 Eq. 441. (11) See 37 & 38 Vict. c. 42, § 3:', (1. 4. (.'■) London ami Birniimjhim Al- ktli Co., 1 Do G. F. & J. 257, (y) Calholie Puhlishimj Co., i Pi G, J. cS: Sni. ll(i. See, also, ank, p. ()29, note (//}. GROUNDS FOR WINDING UP. 639 wlietliev the , or bond fuh' adilucc such to be tried a t against the the judgment es an inquu'v At all events, li a case with- upeaching the nember of the lie rules of the e object of the \ in prefereiioe iself, the Court is not necessary nttoSOL ;butit' npany is unable non-payment of idgment deU of ution has been it within three •iod must have [!J)- tion, the ground •up order ; but I. L. C. 389. :58 Vict.c.42,§3i, ,/ llirwiiujh'm '"■ See, lib >,<'"'<■. !'■ ,, creditor's petition nm;- be supported on au}' of the other "^^^ I^'. Chap. l. Sect. 4 crounds mentioned in tlie statute {(intc, p. G28). b) Contributories' petitions. When a petition to wind up a company compulsorily is i) Oontributo- presentod by a contributory, the Court will talce into coiisidera- '"'*' petitions. ' -111 • 1 1 "* Under older tinn not only the (piestiou whothor tlio company is brought aots. witliin one or more of tlic statutory provisions under which it may be wound up, but also whether an order to wind up is necessary or expedient having regard to the interests of the sliareliolders generally. This was clearlj' settled when the Winding-up acts of 1848 — 9 were in force (z) ; and not only did the Court decline to make a winding-up order under those acts fit the instance of a contributory, where the company was not shown to be insolvent (a) ; but even where a company was under heavy liabilities, and had ceased to carry on its business, the Court would not order it to be wound up if measures were being taken to wind up its aft'airs out of court, and there was guod reason to suppose that its liabilities would be discharged and its assets divided as satisfactorily without the interference of the Court as with it (l). The discretion entrusted to the Court by the Companies act, i) under the 1862, is certainly not more restricted than that which it J'°|l!f"'*^ **=*' possessed under the older acts (c) ; and in exercising that discretion, when a winding-up ol-der is sought by a contributory, the Court is not only guided by the state of the company, but also by the utility of the order, if made (d), and by the wishes (:) See E.c jiac/i^ '''';/''', 1 ^lac. & li. 1, wlierc the company, althoUL;li not jii'o.'^perous, was solvent ; E.i: jJiT/f Wise, 1 Drew. 4G5 ; Metro- }4itan Saloon Omnibu.i Co., T) Jar. -\".S. lul lfi'2 of tlie esirous of ini- ily do so by iiii iction ivikI for !i ill not be (lis- 1 leave to briiif! idence before it hing the trims- the Court was inquiries before his power is idso and in several VtiV, in order that he creditors ami time it wiis de- applies now, tliat unless the Court dusion us to tlie so satisfied tliiit more correct or further time for the pur])osp, unless there is sonic special ''k- IV. Clmi). 1. Sect, 4. reason for so doing (.r) ; and where the contrihutories have ahendy lind a meeting and expressed tlieir wishes, n further meeting will not be directed simply because the first may not have been altogether regular (,y). Nor will a meeting he (lirected if no grounds for winding up are established {^). With respect to Life Insurance companies, which have amal- Ain;ils(imati;J In: coiupaniutj. "amated with another which is bemg wound up, it is provuled as follows by 35 & 3G Vict. c. 41, § 4 "When' tlie Inisiness nr any i)ai't of the business of ii life assurnnce 35 4: 36 Vict, cniiiiiauy lias, cither before nr aftci- the ]iassii)<; of tiiis act, Ijoeii transferred '^- ^^> 5 ■*• to another company under an arrani,'einent in pursuance of wliicli such tirst-iiicntiiau'cl company (in this act called the subsidiary company), or the rreilitui-s thereof, has or have claims against the company to which such tnmsfer was made (in this act called the princi]ial company), then if such jiriiKipal company is bein,!:f wound up by or under lliu supervision of the Court, either at or after the passing of this act, the t'ourt shall (subject as hereinafter mentioned) order the subsidiary company to be wound uji in mniiindioii with the ]irincipal coni]iany, and may, by the same or any siilisivjuent order, appoint the same person to be liipudator for the two ci mpauies, and make provision for such other matters as may seem to the Cinirt necessary, with a view to such comjianies being wound up as if they ttviv ene company ; and the commencement of the winding up of the princijial company shall, save as otherwise ordered by the Court, be the commencement of the winding up of the subsidiary company ; the Court, iieviTtiieless, >hall have regard, in ailjusting the rights and liabilities of the iiunil)ers of the several companies betwH'en themselves, to the constitution uf such companies, and to the arrangements entered into between the said companies in the same manner as the Court lias regard to the lights and liabilities of (lillerent classes of coiitributorics in the case of the winding up uf II single company, or .>.-. near thereto as circumstances admit. " When any subsidiary company, or company alleged to be subsidiary, i> not in process of being wound up at the same time as the principal com- lauy to which it is subsidiary, the Court shall not direct such subsidiary H'mpuny to be wound up, rmless, after bearing all objections (if any) that may be urged by or on behalf of such company against its being wound up, tk Court is of opinion that sueli company is subsidiary to the principal Mipany, and that the winding up uf such company in conjuuction with tlip principal company is just and ei|uitable. "Wliuie any subsidiary comjiany and principal company are being ivound up by dill'erent branches of the (Jourt, the Court to which appeals (/) Orimtal Comm&xial Bank, W. N. 1860, 28.3. (j) Imperial Mercantile Credit ^s- widjion, ib. 257, {::) Lamjham Skatimj Rink Co., 5 Ch. D. 6G9 ; Joint Stock Coal Co., 8 Eq. 146. r T 2 644 WINDING VV BV TIIK COURT. Bk, IV. Chap. 1. from sucli branches lie shall iimke an order directing in which branch the ™ct. 4. winding up of such companies in to be carried on, and the necessary pro- ceedings Bhall b(! taken for carrying such order into etlect. "An application may be made in relation to the windin;,' up nf any Kiib- sidiary company, in conjunction with a principal company, by luiy creditor of, or person interested in, such ])rincipal or subsidiary company. "Where a company stands in relation (d'a ])rin('ipid company to une com- pany, and in the relation of a subsidiary comjiany to some otlier cuiiipiinv or where there are general companies standing in the relation of siib.^idiiiiv companies to one princij)al comi)any, the Court may deal with any iiumljir of such companies together or in separate groups, as it lliiiikj nijst expedient, upon the principles laid down in this section." Analysis of the decisions on this subject. Analysis of cases. 1. Order made. 8. Summary of cases. The decisions bearing on the subject above considei'ed an very numerous, but after the foregoing observations it will be sufficient to notice the most important of them very shortly, and this may best be done by collecting them into tliree groups, as follows : 1. Cases in which a compulsory winding-up order has been made. 2. Cases in which a compulsory winding-up order has been refused. 3. Cases in which a compulsory winding-up order has been deferred. The cases in which an order to wind up subject to super- vision has been made in preference to a compulsory order will be noticed hereivfter {infra, c. 2). 1. Order Made. A. Creditors^ petitions. Orders made on creditors' petitions are seldom reported. It is wlien no order is made that a report is needed. Commercial Bank of South Anatralin, 33 Ch. D. 174. Bank incorporated, and caiTied on business, in Australia ; not registered here, but had a branch office in London. Winding up proceedings were pending in Australia. North, J., made an orJor, but expressed an opinion that the proceedings here i-hould It ancillary to those in Australia, and that the liquidator shouM only deal with assets in this country. Compare Matheson Bromn^ Limited, ?7 Ch. D. 225, when no order was made. onoiTMDs ron winding vp. 645 General Rnllhuj Stock Co., 34 Pea v. 314. Bk. IV. Chap. 1. CVimpany nuiiljle to pay its debts. Member.^ desired to wind Sect. 4. ^ up voluntarily, nml some creditors supported them. Analysis of Isle nf Wiijht Ferry Co., 2 Hem. & M. rm. "wos. Company incorporated by act of Parliament, and petitioning for !• OrJw made, further powers, but utterly insolvent, and alleged to have no saleable assets at all. Family Endowm. lit Soc, !i Ch. 118. \ National Provincial Life Ass. Co., 9 Eq. 306. j Company amalgamated with another company which was itself • being wound up. General Co. for Promotion of Land Credit, 5 Ch. 363, and Princess of Keuss V. Bo.^, L. R. 6 II. L. 176. Company formed and registered under the act ; but consisting entirely of foreigners, and with no assets in this country. King's Cross Industrial Dwellings Co., 11 Ec^. 149. Petitioner's debt disputed, but on grounds considered un- substantial. Compare cases under head No. 3, p. 652. Home Assurance Association (No. 2), 12 Ef[. 114. Company insolvent (!''), but deniring time to pay. Flagstaff Silver Mining Co., 20 Eq. 268 ; Globe New Patent Iron Co., 20 Eq. 337. Company proved to be unable to pay its debts, though no execution had issued and no statutory demand had been made. •ted. It is when iw B. Contributorics' petitions. Haven Gold Mining Co., 20 Ch. D. 151. \ German Date Coffee Co., 20 Ch. D. 169. \ In both these cases it was impossible for the company to carry on the business for which it was formed. The petitions were opposed by the majority of the .shareholders, and in the latter case a year bad not elapsed since the formation of the company. IHumnnd Fuel Co., 13 Ch. D. 400. Company's business had been carried on at loss, its capital had been expended and its property, except some patents which had nearly expired, had been sold at a great sacrifice, and the business could not be resuscitated. The petitioner was a fully paid-up shareholder, but it was shown that the company bad claims for large sums against the directors, which if recovered would leave a considerable surplus to be divided among the shareholders. Tumacacori Mining Co., 17 Eq. 534. Company doing nothing after four years ; assets to divide ; debts to pay; majority desirous of settling out of Court. Quaere, if an order ought in this case to have been made ? see 4 Ch. D. 876. West Surrey Tanning Co., 2 Eq. 737. Company doing no business — circumstances to be investigated — 640 WINIilNG UP liy THK COUIIT. lik. IV. Clmp. ]. Sect. 4. AnalyHin o( cases. 1. Onlcr made. • '(jiitrilmtory'H liotitum. Voliiiitavy winding,' up iii'i)po.si'd, Imt one diivdor ulilc to rarrv everytliiiii,Mis lie liked. Fire Annihildtor Co., ;32 Iknv. fjOI, Voluntiiry wiiidiiij,' up K"ill^' '"> l'"' *ivc years, nud not, I'ndeil, See obs. {(inli', p. (i-lo), iintu (/). London and t'ouut;/ Cual Co., 13 Eip 355. Conipany (inly tliive or four uumtlirt old ; furmcd ili^linnestlv; the dilvctor.s theniHidveH nol, piiyin^ auylliiuf,' on lluir .sjuues, iiii^i defraying the oxpense.s out of money obtained fiom ,m unwiirv secretary, who had taken and jiaid fur shares in order to -cciiri' l:i- appointnienl. Sundennn's J'afentti Ahhoc, 12 En. I^>8. Only seven .sliareholder.s, and no busine.sH. Compare A'cw /,V(,t Gouralor Co., 4 Cli. I). 874. Melropnlitan Railway Wnrelwimi Co., W. N. 1867, 94. Company unalde to connnence business within a year. Ex parte Lattd, 3 iJe C & Sm. 18(!. Pennant and Graigwen Miaiaij Co., 15 Jur. 1J!)2. Ex pirte 8edf)wirk, 2 Jur. N. S. 94!). South Lady Ikrtha Mimiirj Co., 2 J. & H. 370. Trctnil and Mcsser Miniwj Co., 2 J. & II. 421. Times Fire A-'^suraitce Co., 30 I'eav. 5!)(i. In all these cases the petitioner was buin;,' or had been sued 1 v a creditor of the company, whom Die company either cculd not or would not pay. See, also, the HosWDrtlina Mliiinii Co., 20 L, ,).( 1.. G12, M. K., where, however, an inijuiry was tirst directed, in oidi; to ascertain whether the petitioner had paid more than he owed th(^ comjiany. Ex parte HolUmeorth, 3 De C). & S. 7. Ex parte Turner and James, ib. 127, and 2 Mac. & G. 169. | Ex parte Coolce, 3 De G. & S. 148. Eximrte Barber, 1 Mac. & G. 176. J Ex parte JVoolmer, 5 De G. & S. 117, and 2 De G. M. & G. 665. Ex parte Goldsmith, 14 Jur. 734. Lame, Belfast, dr., Rail. Co., ili. flOfi. In all these cases the companies liad proved abortive andiinaUe tn commence business, but there were liabilities to be providiii against or assets to be shared. In the last of them the dirci tor- would not produce any aa'ounts. Bustenne Bitumen Companij, 3 De G. & Sm. 205. A suit for a dissolution was pendiii;:' ''' rcumslauii - «lii''i induced the Court to make a Avindi ,or are not stat 1 could not have done so as a mai i course. See / Phillipps, 1 Sim. N. S. 005, infra, ji. <-2. Ex parte Walker and Ex parte Troutbeck, 1 Da G. & Sm. 585 ; aflirniel 1 H. & T. 100, and 13 Jur. 157. The company had no outstanding; debts, but it had ?toppeil business ; a suit for its dissolution was pending, and some of ii? members had been compelled to pay much more than their proper share of debts. n ROUNDS FOR WINDtNO UP. 647 Compiii'o NcK ilu! iihfrwond Loitn f'o., 1 Sim. X. S. Ifif). \ SI. Oivnyi Ihiililinij Sdcii'lii, t Drew. If)!. J l!k. IV. Cli.ii.. 1. Sect. 4. Fiii'iidly KDciutius wliicli ((Hikl not f,"' '•") 'H"l H'l' rij^'lits of ,\„;i|y5is ,if wlio.so niumbers could not 1)0 iuljii.stcd withmil a wiiuiin;.; ii|(. ciscm. Electrir. TfliijnqJt (.'u. oflntitiid, 22 i'.ciiv. -171. 1. Order made. Tlio companv liml si)i;iit all its ciiiiital, aiul could not ^^o on Oontriluitory'H ^vitllout nioie. ' 1'"''''°"- iVom'iV/i Yiirn dninyanij, 12 lieiiv. ;j('i(i. The coniimny wivi inHolvful, and daily ^'ettinj,' worse, but Ix'ttor times \vt!i'e Iiopi'd for. Wey and Aritn Junrlion Canal ( 'o,, 4 Ei{. 1!)7. Canal conijiany incoiporatud by .spinial act of Parliament, and ruined by railway conipetition. Buulforil Xai'ii anotlicr instance of the . I'mniiiit and Craigiren, Ac, Mininij (!o., 1.5 Jur. 11!)2. ) In each of tlieLio casit.s a company had ceased to carry on business, and had lieen amal(,'anmted witli another companj'. In Eximrk I'hilliiia the company's assets exceeded its liabilities, and tliere was a surplus to divide ; in E.r jiarte Dec it was objected that in cunseipience of outstandinj,' policies, the company's liabilities could not be settled for many years ; in the I'cnnunt and Craigiven Co. creditors were suing the shareholders. Expartc Lawtun, 1 K. & J. 204. Tlie company had tailed ; its liabilities were outstanding ; but a new company had been formed by all the shareholders of the iirst, save the petitioner and another. It was sworn that the allairs of the (dd company would speedily be wound up if no order were made. The petitioner alone desired the. Court to intcrl'erc, and he, not having paid his calls, v.as sued by a creditor at the instance of the company. The order in this case was made nn the ground that the company in (piestion existed only i'ur the purpose of winding i\[i its atfaiLs, that its assets were outstanding, and its liabilities undischarged, N.B.— For other cases of amalgamated companies, see anic, p. 04."), and infra, jjp. G.'iO, (552, 053. 2. Petition msMissED. A. Credilurs' jjcl'uiuns. .iil.-tow Total Loss Association, 20 (!h. 1). 1:57. As,sociation illegal under § 4 of the Companies act, IBOi, and the petitioning creditor had notice of the illegality. 648 WINDING UP BY THE COrRT. Bk. IV. Chnp. 1 Scot. 4. Anal,T8i8 of 2. Petition dismissed. Creditor's petition. Heme Bay Waterworks Co., 10 Cli. D. 42. , Urugvay Genlrnl and Hyrptcriias Rail. Co. of Monte Video, 1 1 Ch. 1). 372. ( Petitioner a delienture holder (see ante, p. 625, and rompan^ Olathe Silver Mining Co., 27 Ch. D. 278). Great Britain Mutual Life Ansociation Society, 16 Ch. D. 247. Order made on the petitioi of the second petitioning creditnr. the deht of the first heinp; disputed. On appeal ^t the desire of a committee of policy-holders, this order was discharjjcd, and a scheme for the reduction of the companies' contracts entered into. See same case, 19 Ch. D. 39, and 20 Ch. D, 351. TIic Fishermen of Faversham, .36 Ch. D. 329. Chapel House Colliery Co., 24 Ch. D. 259. ' Uruguay Central and Hygmritas Rail. Co. of Monte Video,\\ Ch. D. 372. j In these cases the petition was opposed by the niiijoritv 0' creditors, and it did not appear that the petitioner wouU "ain anything by an order. Bolton Benefit Loan Society, 12 Ch. D. 67(^. Com^jany unregistered consisting at the date of tlie petition if less than seven members, (,'ompare South London Fishmurhi Company, 39 Cli. P. 324. Pen-y-van Colliery Co., 6 Ch. D, 477. Petitioners claim for unli(iuidated damages and ilisputed. rari.i Skating Rink Co., 5 Ch. D. 959. Petitioner's debt assigned since petition was presented. Catholic Publishing Co., 2 De G. J. & Sm. 116. Petitioner's debt disputed — twenty-one days after demand LvJ not expired when petition was jiresented. London and J'aris Banking Co., 19 E([. 444. ) London M^liarfing and Warehousing Co., 35 Beav. 37. ) Petiiiuiier's debt disputed — twenty-one days after demand liaa elapsed before petition was presented. Hope Mutual Life Assurance Co., 1 N. R. 542, and 11 H. L. C. 369. Petitioner's 'Vbt, a judgment debt, disputed on the grouml (f fraud, and \v- U'clined to try its validity. Gold Hill Mines, 23 Ch. D. 210. Petitioner's debt was small and disputed, and no evidence if ili- company s insolvency was adducetl. Petition was dismissed 1:: motion. Kur'^pcan Banking Co., 2 E([. 521. Petitioner's debt small, and attached by judgment creditors' liis own. Langley Mill Steam, d-c, Co., 12 Etp 26. Petitioner's debt not disputed, but majority of creditors pre- ferring a voluntary winding up. Planet Benefit Building Soc., 14 Eq. 441. Petitioner, a withdrawing member, seeking to obtain an unfair advantage over others. Company not insolvent. GROUNDS FOR WINDING UP. 649 )25, and compare ys after demanil M B. Contributor its' petitions. a) Gowpany not insolvent. Eica Gold Washing Co., 11 Ch. D. 3(5. Bk. IV. Chap. 1. Sect. 4. Atialysii of cases. 2. Petition dismissed. I'clilioner was the holder of fully paid up shares for small Contrjijutorv'i value, hut failed to show that there wouhl be a substantial amount petition, of assets to be divided amongst the shareholders. The charges of fraud were too vague. Capital Fire Inmraiice Association, 21 (Jh. D. 200. Reason alleged was that company had not commenced business within a year. The company was formed to carry on business jiere or abroad. It had commenced business in France, and intended doing so in England. Middlesborough Assembly Rooms, 14 Ch. D. 104. Under the circumstances the suspension of business for more than a year (the reason alleged in the petition for the winding up) was reasonable. The majority of shareholders opposed the petition. Langham Skating Kink Co., 5 Ch. D. 669. Company the I'cverse of prosperous, but not insolvent. New Gas Generator Co., 4 (Jh. D. 474. Only seven members, and nothing to be gained by making an order. Comj)are Sanderson's Patents Assoc, 12 Ei^. 188. Ex parte Wyhl, 1 JIac. & G. 1. Cdmpiuiy solvent, and carrying on business ; petitioner would not pay his calls, and was sued by a creditor at the instigation of the directors. Ex parte Spackman, 1 Mac. & G. 170. Company solvent, and carrying on business. Petitioner was dissatisfied with an arrangement by which several sharehohlers had retired. This arrangement was subse(iuently held to be ultra vires {a). National Live Stock Insurance Co., 20 Beav. 153. The company was cari'ving on its business. It was alleged to he insolvent, and would have been so, if it could not have re- covered monies due to it from its own directors and others for calls. But it was in a position to recover such monies, and was solvent when credited with them. European Life Ass. Sne., 9 E(i. 1 22, and 10 Kij. 403. Conniany not proved to be unable to pay all its e.xisting debts and liabilities, but was not nourishing, and would probably he unable to discharge liabilities it would incur if it continued business. Ex parte James, 1 Sim N. S. 140. A member of the managing committee of an abortive company petitioned to have it wound up. There were no bona fuk debt.s outstanding ; the real ouject of the petitioner was to obtain pay- ((() See ante, p. 522. Tr"|F""'^iWP 650 Bk. IV. Chap. 1. Sect. 4. Analysis of cases. 2. retition dismissed. Contributory's ■ petition. WINDING rP BY THE COURT. ment of his brother's liill of costs, which was disputed, and for w)iich i.n action had been brought and discontinued. Anglo-Greek Steam Co., 2 Eq. 1, a7ite, p. 632. Misconduct on part of manage and directors alleged, but iw insolvency, and no reason why business should not be profit;il'le with better management. Hop and Malt Exchange Co., W. N. 1806, 222. Company not a year old, and not in debt ; members about equally divided as to whether they should go on or not, and articles providing that four-fifths must concur in order to pass ,i resolution to dissolve. Suburban Hotel Co., 2 Ch. 737. London and Suburban Hank, (i Ch. 641. Joint Stock Coal Co., 8 Eq. 146. Factagu Parisien Co., 10 Jur. N. S. 121. Metropolitan Saloon Omnibus Co., 5 Jur. N. S. 922. Company not prospering, but not insolvent, and niajoritv desirous of going on. Company limited, and capital not all paid up. Professional Building Society, 6 Ch. 8.56. Similar circumstances, but no limit to liability. Petitioner under no liabilit}% Sjmice's Patent, d'C., Cvment Co., E(|. 9. No allegation of insolvency in the petition ; l)ut eviden'O nf insolvency, and alle,uation and proof of continued loss. Petition supported liy creditor. E;i; parte Fiaher, 3 De C & Sm. 116. A subscriber for shares in a proposed railway company, peti- tioned to wind up a company fin-med for making and wurking portion only of the line originally contemplated. The projectors were authorised to apply f(n' an act to enable the company toniakt a less line than that first intended. Planet Benejit Building Soc, 14 Eq. 441, ante, p. 648. b) Company amalgamated with another. Anglo-Australian Anauranrc Co., 1 Dr. & Sm. 1 13. The company's business had lieen transferred tu anotlier loiii- jiany, and the petitioner liad become a shareholder in it, ami \v:n bound liy the transfer. The amalgamation, liowover, was disiuitnl. and the selling conijianv was lu-ing sued for its deiits. Ex parte Coolcson, 1.') Jur. ()15. A projected company luid been anralgamated with anotlioi' cnn- pany, which had undertaken to buy up the scheme uf tln' lii'-:. There were no debts i,\' the former company outstanding ei unsettled, but the money agreed to l)e paid was .-.till unpiiiil. The Kole object of the petition was to liave this money got in aui divided. See, also, the previous heads and next head. GROUNDS FOR WINDING UP. 651 jility. Petitioner c) Company beinrj wound i/^) voluntarilij. ) Bk. IV. Chap. 1. Sect. 4. Analysis of oases. 2. Petition Irrigalinn Co. cif France, (5 Cn. 170. Imjvrial Bank of China avd Japan, 1 Ch. 33!). ^ Company being wound up voluntarily in order to be anialga- (nsmrssedT mated with another. Contributory 'g Lnndtm and Mcrcanti!': JJincount Co., 1 Eq. 277. petition. Dii'ectois charf^ed with breaches of trust, and commanding a niiijority of votes. Blink of (liliraltur an 1 Malta, 1 Ch. 6!). i Gold Comimnij, 11 Ch. U. 701. ] Company beinp,' wound up voluntarily, petitioner showed ni) fraud in the passing of the resohition f(jr that purpose, though fraud in other matters was alleged. See ante, pp. 63!), C40. General International Ancncij Co., 30 Beav. 1. Majority in favour of voluntary winding up. E.C parte IFatson, 3 De G. & Sm. 253. The conipiuiy Ind carried on business as bankers in India and iu this CO intry, and was being wound up extra-judicially. The petition was presented by a sliareludder, who, declining to pay the amount reipiired of him, was sued by a creditor. Ex parte Cnest, 5 De CI. & Sm. 458. The company was being wound up in a way approved by a majority of llie shareholders. There was a large judgment debt to provide for, but the creditor was not pressing for payment. Ex parte irise, 1 Drew. 405. This was a somewhat similar case to the last, and the real object of the petitioner was to make the directors account to the company for a misaijplication of its assets. (?) Company small, and better wound up out of Court than in. Natal, <0c., Co., I Hem. & M. 639. Sen, Hirer, and Marine Insurance Co., V. N. 1806, 253. Companies having only nine and seven members respectively, no dubts, and no reason why they should not be wound up volunlurily. In both cases the company desired to wind up Voluntarily. <■) IFindinrf-up order u.^ielen^ if made. Xiw Hici driieratar Co., 4 Ch. D. 874. Compaie Tuniaeaeori Mi)iin(j Co., 17 Eq. 534. Expitrle Inderwieh, 3 De U. & Sm. 231. The petitioner was a subscriber to an abortive cimipany. There Were no outstanding lialtilitics, and no assets except what might be lecovered from the promoltrs in respect of matters which occurred five years before, and which had been already made the ful)ject of two compromises. 652 WINDING UP BY THE COURT. Bk. IV. Chap. 1. Sect. 4. Analysis of cases. 2. Petition dismissed. Contributory's petition. Ex imrte Mnrrell, 3 De G. & Sm. 4. The petitioner was a subscriber to an abortive company, but it appeared that there were no outstanding; liabilities, and no assets e.\cept what could be j,'ot by opening accounts which had been loii;- acquiesced in and acted upon. The petitioner had received back the greater part of his subscriptions. Compare Ex -park Pvcock, 1 De G. & S. 731 ; Eximrle Williams, 1 Sim. N. S. 57. Ex parte Philli}ips, 1 Sim. N. S. 60"). Suit for dissolution pending, in which everything could be clone. Comiiare Bastenne Bitximen Co., 3 De G. & S. 265, ante, p. 646. /) Forcifin company, Lloyd Generale Italiano, 29 Ch. D. 219. Petition presented by the company. Order refused on the ground that the Court has no jurisdiction to wind up an un- registered foreign company which has merely carried on business in England by agents Avithout having any office in this country. See ante, p. 622. 3. Petition ordered to stand ovp- . B. Petition ordkred to stand over. A. Creditors' xietit'wns. f Western Canada Oil Co., 17 Eq. 1. St. Thomas Dock Co., 2 Ch. D. 116. Exmouth Docks Co., 17 Eq. 181. Brighton Hotel Co., 6 Eq. 339. In all these the petition stood over to see if means could be found for paying dissentient creditors. Olathc Silver Minimj Co. , 27 Ch. D. 278. Petitioner \\as u debenture holder, and the petition was ordered to stand over for inquiry whether the company had any assets other than those conijjrised in the debentures. See aiiti; \). 625. Great Wcdmii Coal Conmincrs' Co., 21 Ch. D. 769. Petition was oppo.'icd by the majority of creditors, and it wa< ordered to stand over for six months on terms, this being cousidercu more beneficial to the other creditors than dismissing it. Ehydydcfal Colliery Co., 3 De (i. & J. 80. Petitioner's debt disputed. Inventor's Association, 2 Dr. & Sm. 553. Petitioner's debt disputed — voluntary winding up proceeding- action against company commenced by petitioner, but obstructni by liquidator. Imperial Guardian Life Ass. Soc., 9 Eq. 447. Company amalgamated with another and in course of voluntas liquidation. Petitioner's debt disputed, and security olTertd. N.B. — Compare King's Cross Industrial Dwellings Co., 11 £([. 149. GROUNDS FOR WINDING UP. 653 B. Contributor ics' 'petitions. Bk. IV. Chap. 1. Sect. 4. if means could be City and County Bank, 10 Ch. 470. Analysis of Coinj)aiiy des td to wind up voluntarily and to carry out an <^'^''**- arrank'ument with its creditors, to which they agreed. ^- Pctit'o" V «-» oruered to Imperial Bank nf China, 1 Ch. 339. st^nj ^ygr^ Kesulutiou to wind up voluntarily, in order to amalgamate with another company. Petition im])eache(l whole proceeding, and was ordered to stand over, with liberty to fde a hill, Briibh I'rovUent Assurance Sucidji, 1 Dr. & Sm. 113. The company had transferred its business to another company, which was not shown to be unable or unwilling to fulfil its engagements. IFlml Anne Mininij Co., 30 Beav. GOl. The petition was ordered to stand over with a view to an arrangement being made. Creditors were suing in the Stannary Coiu'ts. North U'estern Trunk Co., 3 De G. & Sm. 20(5. The company had proved abortive, but it was not clear that anything capable of being wound up had really ever existed. Ex. f arte Williams, 1 Sim. N. S. 57. The company was abortive, and had, in fact, had its affairs wound up, but, as the petitioners alleged, in an improper manner. Compare Ex 'parte Focock, 1 De G. & S. 731 ; Ej: yarte Murrell, 3 ib. 4; Lame, Belfast, A-c, Rail. Co., 14 Jur. 996. Monmouthshire and Glamorganshire Banking Co., 15 Beav. 74. Tlie petition was ordered to stand ovei', to enable the company, if jiossilde, to wind up its own affairs, which it had begun to do. Ex park Collins, 8 W. R, 170. The petition was ordered to stand over with liberty to apply ; the solvency of the comiiany depending on its right to enforce a disputed contract for the sale of its business to another company. Ex parte J'ocock, 1 D'; G. & Sm. 731. The company proved abortive. The great majority of the sub- scribers had been repaid part of the money they had paid for deposits and had released the directors. A dissatistied sub- scriber, who had not executed the release, presented a petition for winding up the company, alleging a refusal by the directors to jiroduce the accounts, and a misajijilication of assets by them. The Court declined to order tlie company to be woundup; it also declined to direct any in([uiry as to the expediency of wind- ing it up ; at the same time it would not disini.-s tiu', petition but ordered it to stand over, so that the petitionci might have an iippoitunity of seeing the accounts which had been withheld from him. What ultimately became of the petition does not ajipear. i^ee, too, Ex parte Capper, 3 De ( !. iS: S. 1 ; and compare I'Jx parte Murrell, ib. 4. In The Lame, Brlfa.^t, . WINDING UP BY THE COURT. Bnswnrthon Mining Co., 26 L. J. Ch. 612, M. E. IiKjuii'ies were directed by consent, in order to .see wliether thi. ; 'ititioner, who was being sued liy a creditor, had paid nioru ilwi, he owed to the coinpimy. A winding-up order wa.-~ ultiinattlv made. Ex ■parte Moss, 14 Juv. 754. An inquiry was directed to ascertain the iio.sitiun of the company abroad, it being half a foreign and hall' un l:;iigli
  • I. (c) JFear Engine JFurks Co., 10 Ch. 188. See, also, Lamjhum ^bM') liink Co., 5 Ch. D. GG!). roraloim of petition, see Palmcr'.s Cuniiiaii} Precedents (4th ed.), (!4!), 2 fc^mitii'- Chan. Prac. 319, ed. 7, and for ;i form under the older actr', see /.'■. Xorth of Knglund Jlanliiig Co., 1 iJv G. & S. 545. (/) Rica (lohl irasJtiiuj Co., 11 Ch. D. 36. THE PETITION AND PRACTICE RESPECTING IT. 665 30 Si 31 Vict. c. 131, § 40, have been complied with ; but an ^k. ^^-^^^''^P- ^• omission to state this is not fatal to the petition {g). One petition to v.ind up two companies is wrong (/<). A petition may bo amended by leave of the Court (/). I'lvery contributory or creditor is entitled to have a copy of the petition, on payment of M. per folio (Mule 5). The petition must be advertised seven clear days before the Advertisements, hearing, once in the London Gazette, and once at least in two London daily morning newspapers, or local newspapers, accord- ing to the situation of the company's office (Rule 2). Tlie advertisement must state the day on which the petition was presented, and the name and address of the petitioner, and of his solicitor and London agent (Rule 2). Forms of adver- tisement are given in the schedule to the rules {k). Care should be taken to make no mistake in advertising. An advertisement that a petition will bo heard on Saturday the 20th of December, when the 20th fell on a Tliursday, has been held insufficient (/) ; and a mistake, although trifling, in the name of the company may prove fatal {)ii) ; but the Court may give leave to amend the petition either with {n) or with- out (rt) ordering it to be re-advertised. 'In a case where a petition comes on to be heard too soon, the Com't can in its discretion dispense with fresh advertise- ments (j)) 5 or order the petition to stand over in order that fresh advertisements may be issued {q). The petition may be \l W'ashiwj Co., 11 (;/) City and Counfij Hunk, 10 Ch, ■liO. As to holder of fully paid-up shares, see ante, p. 02(5. (/() tihiehh Marine Ins. lJo.,^Y. N. l^U;, 2(J5 and 296. (i) Queen's lienejit Bidldimj Soc, G Cli. 815. {k) For the form of advertisement, see rule 2 and form 1 in the .3rd sclitilule to the rules. Aa to dis- pensing wilh fre.sli advertisements un a rehearing, Patent Fluor Cluth Oj., 8 E 1. (;(;4. (0 A'.' 77ic Joint Stock Companies "7/i(/)'uf/-iy) Act, 13 Beav. 434. (m) City and County Bank, 10 t'li. 470. (/() Annij and Nninj Hotel, 31 (-'li. D. G44 ; Nen-castle Metchinittx' Co., W. N. 188S, 140, and note W. N. 1889, 1. (o) Cork Constitution Ld., 9 L. R., Ir. 103. {V) ^'■'ll ^'■ini Connty Hank, Id L'h. 470. (q) London and Westminster JFine Co., 1 Hem. i^c M. .OOl. Under the older acts, it was held that the ad- vertisement of the petition in the London Ga~ettc need not be seven days before the hearing of the pe- tition, although the advertisement in the other papers must, English and Irish Church and University 656 WINDING UP BY TIIK COURT. Bk. IV. Clwp. 1. presented and the advertisements issued on the siinie dnv ■ Sect. o. Service of petition. and where an advertisement stated that a petition had that day been presented, and tlio petition was presented on that daj', but not until after the advertisement had been publi.sheil the Court held the advertisement sulTicient (r). It is improper to publish in a newspaper the contents of a petition before it is heard (s). The petition, unless presented b}' the company itself, must be served at its registered office (t) ; and if there is no such office, then at the company's principal or last known principal place of business, if any can be found ; and the service must be upon some meniber, officer, or servant (») of the company there ; or if no such person can be found there, then by beinjj left at the registered office or principal place of business of the company (.r). If it is found impracticable to comply with those directions, application must be made to the Court for leave to servo the petition upon some member of the ct)iiipanv(//), These rules, however, are directory only ; and if the solicitor of the company accepts service for it, service at the registered office may be dispensed with {z). AVhere a company is being wound up voluntarily, a petition to have it wound up subject to the supervision of the Coiiit must be served on the liquidators {n) ; but, owing probably to an oversight, the rules do not require that the liquidator Assurcaice Sociefii, 10 W. R. 33. It is, however, diflercnt now. {)•) Cork and Youyhal Rail. Co., W. N. 1866, 279. (s) Cheltenham and Swansea Eail- Kay Carriage, dr., Co., 8 Eq. 581). (<) As to which see the Com- panies act, 1862, §§ 3!), 40, and rule 3. ()t) These words occurred in 1 1 & 12 Vict. c. 45, § 10, and it Avas held that service on a member of the ])rovisional committee wa-s insuffi- cient, Re London and Dublin, etc., Railwaij Company, 3 De G. & S. 208 ; so service on the company's solicitor, Ex parte Dale, ib, 11. (.c) Rule 3 of the order of 1862. This order is meant wliere no other is leterred to. (y) Ib, Service on some inemliei seems necessary. Under 11 & 1:1 Vict. c. 45, § 10, service might he dispensed witli altogether. As to whether service can be disiiensed with by consent, see lie Brighton, Lewes, tCr., Rail. Co., 1 De G. .Si S. 604 ; Ex parte JFolcsnj, .3 ib. 101 ; Re Tring, Reading, cDc, Rail. Co., ib. 10 ; Regent United Service Stores, 8 Ch. D. 75, and Panonia Laxtkr Cloth Co., 13 W. R. 1015. (,•;) Regent United Senice Stuns, S Ch. D. 75. (a) Rule 3. THE PETITION AND I'lUCTICE RESPECTING IT. 657 same dny : on had that ited on that 211 published, ;oli tents 1)1" a ly itself, must ■e is no such own i)i'incipal e service must the company then hy hm^ business of the iiply with these ^ouvt for leave .e company (,'/). if the solicitor , the registeveil arily, ii petition u of the Coiivt lowing probably the li(iuidatnr [ill wbere no other L on some iiiemljei Under U & 1- I service niit;lit he altogetlier. As to [can be ilisiiense'l see E>' Brighton, 'u'o.,l DeC.&S. lirote<'l/.3ib. 101; 1,, cOc.,A"((ilCo,ih. al Service ^tom, 8 Pannidd Leather {l. 1015. led Henice Stuiv. " should be served with a petition to have the comp'\ny wound ^^'^- ^y. Chap. 1. Sect. 5. lip compulsorily. This, however, ought, it is coiiceived, to be — iloue. Where a company's registered office was shut up, the Court ilirected tlie petition to be dropped into the letter-box of the office, and to bo served on the company's solicitor, and on one (if the directors (h). In another case, where the company was lieiu" wound up voluntarily, service was directed on all tiio (hrectcrs and two or three of the principal sliareholders (c). Service without leave of the Court on a wt)rkman at the last leuisterod office of a company, which had long ceased to carry on business there and had amalgamated with another company, b not sufficient (d) ; but service on two directors at ihe actual otHee of the company has been held sutHcient (^;). The petition must be verified by the affidavit of the peti- Evidence in ' . , SUppOlt of tioner, or one of the i)etitioners ; or, it the company is the petition, lictitioner, by some director, secretary, or principal officer (/). An affidavit by the petitioner himself will, however, be dis- pensed with under special circumstances {(/). If one company |ietitions for an order to wind up another, an affidavit by the seeietary or one of the acting directors of the petitioning eonipany would probably be sufficient. The affidavit must be entitled like the petition (/t), sworn and filed within four days niter the petition is presented (/) ; but the time will be en- liii'ged by the Court if any reasonable grounds for so doing are shown (k). The affidavit is sufficient immd J'ncic evidence of the statements in the petition {I). (Ii) London and Wedminsler IVine !■('., 1 Hem, & JI. 5()1. (c) hmntorii Assoc, 6 N. B. 34!). !(/) Manchester and London Life ■lis.nnd Lonn Assoc, 9 E(i. G43. (f) Fortiv.u: Copper Minimj Co., 10 El, m. (!) lUilfi 4, A form of afliilavit 1- ijiven, set; lorn; 2 in tlie IJrcl ahtilale to t]i.> ruka of 1862, but •i> tn ilie heading, sei; order of 1868, rule 1. ('i) Fortwv. Copper Minimj Co., W Eij. 390, where the petitioner was I-.C. abroad. (h) See note (/), ante. (i) Rule 4 ; not before, see Western Henejlt Building Soc, 33 Beav. 3f;8. (k) Sec rule 73 ; Patent Screwed Boot Co., 32 Beav. 142 ; Kentish Iloyal Hotel Co., 5 N. R. 423. {I) Rule 4. Strictly speaking the affidavit is seldom proof of anything, beinj^ hearsay as to most matters sworn to : Gold Hill Mines, 23 Ch. D. at p. 214. The rule, however, is a check on reckless assertion?. U U 668 IJk. IV. Chap. 1. Sect. 5. Evidctico in oppowition. Appearance in support and opx)08ition. Costs. WINDING UP BY THE COUnX. If the petition is opposed on grounds not disclosed in it, or in the affidn^•its filed in support of It, the ftdditional fuels necessary to be proved, must be vcri.ed by aflidiivit. The persons making affidavits can be cross-oxainiiiod ; tlic Cotu't will, if necessary, order the books of tiie coinpiuiy to be produced on such cross-examination (»?)• All persons served with the petition, and also all ooutiilm- tories and creditors («), but apparently no other persons id), are entitled to ap[)ear on the petition, and to snitinnt or oppose it. But as regards costs the following rules are usuiilly followed : 1. The costs of a petition on which a winding-up order is made are borne by the company {}>) ; these costs iiicliule the costs of the petitioner and of the company, and the costs of iill other persons, if any, properly served with the petition (//). 2. The costs of a petition which is dismissed are borne by the petitioner ; luiless the Court is of opinion that tlie petition was justifiable, in which case the dismissal will be witlunit costs. If dismissed with costs, such costs iut hide tliose of the companj^ and of all persons, if any, served witli tlie petition (r). 3. With respect to persons who appear to support or opposi^ a petition, although not served with it, the usual pnutiee i>: 1, to allow one set of costs to those contributories, and oiu' set to those creditors, who upon reasonable grounds (withoiu being served) appear on the petition and support the view which ultimately prevails — i.e., support a successful, or oppose an unsuccessful, petition ; '2, to give no costs to tliose wlio (not being served) support an unsuccessful, or oppose a siu- It has been pnggested that this part of rule 4 is ultra vires, wee Euokley on the Companies act, 5th ed., ]). 615, but in practice no other evi- dence is adduced in tlie majority of cases, at least in the first instance. {in) Emma Silver Alining Co., 10 Ch. 194. As to inspection of conr- pany's books, see Credit Co., 11 Ch. D. 256, and IVcst Devon Great Consols Mine, 27 Ch. D. 106. (?i) See Marlborough Club Co., 1 Eq, 216, and the next note. (o) See Ilrtidford Xdviijatim (!'>■. 9 Eq. 80, and 5 Ch. 000. See, also, S. C, 10 Eq. 337. (2') The order is usually .-^ilcnt a- to the costs. It was so uuiler tlif older acts, see the form in 1 Dc H. & Sm. 547. (2) HumberlroH JForh Go.,2Ei\. 15. (r) Humber Ir:r. Works Co., i B|. 15. THE PRTITION AND PRACTICE nESPECTINfl IT. cr>s) closed in it, uv [Iditioniil fads avit. examined ; tin' coni[)iiny to In all ('onti'il)ii- icr poi'sonsid), to SUl)l)Ul't 111' ules are usuiilly iling-np order is sts include tlie 1 the costs ut' all petition («/). id are borne liy that the petition will be without iiK hide those of served with the ipport or oppose isual practice is : (utories, and one U-ouuds (without .npport tlie view essful, or oppose Its to those who or oppose a sue- .. next note. Unrd Navigation Co., jch. 000. See, also, Ir is; usually silent a> was so uiuler lln' fhe fonii in 1 De (!. 1-0)1 }ForhsCo.,ih 71 tforks Co., 2 &!■ lessful, petition ; but, 3, to make a petitioner pay the costs of '"'^' ^J'- f"';'*''- '■ persons who appear to answer and succeed in refuting im- -" founded char^ics made against thorn (»). A provisional liquidator is only in the nature of a receiver, and will not he allowed his costs of appearing on a winding-up IK'tilion (/). Where a petition was presented by a shareholder in a cost- Cost* of preli- . . 1111 11 Ti 1 iiiimiry iiKiuirios. liook nnnnig company, who liaa been sued by a creditor, and the iK'titioii was opposed on the ground tliat the petitioner was indebted to the company and had net been compelled to pay more than he owed to the company, and an inquiry upon that point was directed by consent, and the result showed that the petitioner had paid more than he owed the company, and a winding-up order was then made, the costs of the preliminary inquiries were thrown on those whose opposition caused tlicm to be directed {it). A petition maybe witlidrawn by the petitioner (i), and ought Wiilidrawnl of to be withdrawn as soon as Ins claim is satisfied (ij) ; hut as a general rule, he can only withdraw it on payment of the proper costs of those who appear on it, whether to support or oppose it (:), though under special circumstances the Court will allow the petition to be withdrawn without payment of costs («)• Separate sets or only one set of costs may be given to tlie sliareliolders and creditors appearing on the petition (6). (<) Si-e Jfiill ami. Count]! Bank, 10 <-li. D. i;!0 ; Xcio Gas Co., 5 Ch, 1). io:! ; AiiijIo-EijiQitian Nav. Co., 8 E'l. WiO ; Enroiiean Bankin(j Co., 214.521; Amjlo-Grcck Steam Co., IW : HkiiiIii r Iroa IForJcs Co., ib. 1>. L.ird llaUieiley, when V.-C, lel'useil co.?ts to persons not served. >ee Oriental Cummcrcial Bank, W. N. ISCO, 283 ; lL,p and Malt Ex- chi.mje Co., il). 222 ; Imperial Merc. Cmlit /!.«., il). 25(i. (0 iJentral International Agency C'j., 36 Beuv. 1. He was, however, allowwl some cost.s in Times Life 'U, dr., ,Sof., 9 E(i. 382, and in i'«ro^e((/i Bankimj Co., 2 Eq. 521. (i') Re Bosworthon Alining Co., 26 L. J. Ch. r.12. (.'■) Hereford and South ^Fii/w Waggon, li-c, Co., 17 Eq. 423 ; Times Life Ass., dr., Co., 9 Ei[. 3y3 ; Home A.is. Association, 1 2 E(^. 5!). (;/) Times Life Ass., die, Co., !) E(i. 383. (;:) Nacupai Gold Mining Co., -IS Ch. D. 65 ; Patent Cocoa Fibre ( '<>., 1 Ch. D. 617 ; Hereford and Soullt, Wales Waggon, &c., Co., 17 Efi. 423 ; Marlborough Club Co., 1 Kt^. 2U) ; Home Ass. Association, 12 Eq. 5!). (a) District Bank of London, 35 Ch. D. 576 ; United Stock Exchange, Limited, 28 Ch. D. 183, (b) Paper Bottle Co., 40 Ch. D. 52 ; u u 2 6(;o WINDINd VV IIY I'lIK CoiaiT. Ilk. IV. CI iiip. 1. ^'('velal IK tioDfi. The petitioner, on the hearing of his petition, mny oloct to take a supervision order iiistoad of a compulsory order, and in this case the costs of creditors who appear to support tin petition for a conipulsorv order will be allowed, though tlnv ujny have opposed the supervision order {<•). There is nothing to prevent the presentation of several petitions by several persons ; and as no person cnn prevent tlir withdrawal of a petition presented by another person, uml a. petitions arc frequently presented in order that tlioy mav hi! witlidrawn or pressed on as may he aft»>rwards found con- venient, it has become connnon for several persons to present several petitions to wind up the same company. This prnetice, however, is discouraged as much as possible by tlu' courts; and if the petitions are presented to different branches ot the Court, those subsequent to the first will be transferred to that branch of the Court to which the first has been presented ( r.. T. (N. S.) 22f) ; Criterion Gold Mininii Co., W. N. 1889, p. 46. (c) Chi'pstow UohUn Mills Co., 3(i ( 'h. D. TM;]. {(I) West Hartlepool Iron JVorh Co., 10 Ch. 029. In United Ports and General Ins. Co., 39 L. J. Oh. 14(5, V.-C. K., tlie priority of several petitions was determined by the dates of their advertisements. (»') General Financial lianh, i" Ch. D. 27G ; G. F. Brooked' Co., W. N. 1888, 213. (/) See, on this suhject, Ei fiuii Turner, 3 De G. & S. 127; 'Imu Fire Ass. Co., 30 Bciiv. filJC ; uiiil the cases in the next note. {(j) General Financial Bad; 3' Ch. D. 27(J ; Humber Iron //'w'< Co., 2 Eq. 15 ; Commercial Dismhi Co., 1 N. R. 41G. APPRALH AND MTAYINa mOCKKDIVnS. mi 11, may elect to ry or(l(M", and in to siipiiort till' ?(l, tliougli tllOV itioll of SOVCl'Ill ciiii prevent the • person, ntid a> lilt they iiiiiy ln' rcls found C')!!- ■sons to present This practice, by the courts; braiiclies of the inst'erred to that I i)resented ('/). ' that a petition llowed till' costs of the previous jciuljustiiiciitiuii, ley have aU'culy on of a petition iiig to pay the 10 costs of tile wcvcr, the tir.-t st of the com- olid petition i> evoraljustitiiihle order is usuallv u all are paid by inancial Bank, -" F. Ilrooh; <[■ ft). , W. is subject, Ex jmk & a. 127; n'<« ;0 Bciiv. f>:)G ; ;iwl K'xt note. inuncial Banl; 3' fumha- Iron IIV.< toiiimcrcial DixouM the coinpiiiiy (/') ; Olio set of costs hein^' allowed to the unserved '"^' 'V. cImii 1. (leditors and one to the unserved contribiitories appoiiring and supportiuf,' the jietitions (/). Kiicli, however, of several petitions iiiust be dealt with on its own merits (L). If a iietition is presented l»y ii limited company (/), or by a Sirmity I'nr person resident i>ut of tli<' jurisdiction, or in the case of a life ' '^ " insmaiice eoiiipany by u policy-liohlerjor a contributory (, ), or if the petitioner before the hearing has lilcd a petition in bank- ruptcy («)i the petitioner can be compelled to give security for costs before liis petition is heard; and such security can be applied for, either wlien the petition conies on for hearing (o) ur before ( y') ; and the respondent does not lose his right to security by filing atUdavits in ojiposition to the petition (7). I'ersoiis opposing the petition cannot bo ordered to give security for costs (/'). If a petitioner dies between the presentation and hearing of Deatli «< the petition, his personal representatives may obtain leave to cuutimie and carry on the petition (s). Apprah from and sfai/iug prorcedinns under windinfi-up ordcr.i. A winding-up order made by a court liaving no jurisdiction imiirn|,cr to make it, is wholly invalid, and must be so treated although "" *"'"*' nut appealed against (/) ; but an order made by a court having jmisdietion must be treated as valid until reversed on (/i) See the casus in the hist two Moti's, and K.f imrtc 1V(tlkci; I l)e (i. ^ Sni. 585. ■'■) Ante, pp. (i.58, ()■")!). (',) Enriqmn Ihiik Co., 2 Eq. ')2'[. As to tlie carrinoe of the order in ^udi cases, see ni//'i(, p. (iSO. (0 See the Companies act, 1802, j69. (»i)33& 34 Vict. c. Gl,§ 21. ('i) Cartit I'ara Mitiinij Co., 1!) Cli, I). 457, but coiiii)are Rhodes v. iMiwn, H)(). 13. \). -,18. ") Homo Ass. Assoc. (No. 2), 12 tJl'112; Ex park SeuUer, 12 Sim. lOll. ( y») Atliins v. t'uulce, 3 Drew. 094. ■ (7) Sue last note but one, and Martxno v. Mmni, 14 C'li. 1). 419 ; Lijdiicij and Jl'lijpo(d Cu. v. Dird,2'-i * 'ii. 1). urtH, and R. S. C. Old. ixv. r. G, whicli leaves the amount of the suciuity to be given in tlic iliscre- tiuu of the jutlge. (/•) J'niry (did KMij Nickel, d-c, CiK, 2 Ch. IJ. 531. (,s') JJijiievor Duffrtju Collieries Co., W. N. 1878, 199, and see Atkins' Estate, 1 Ch. 13. 82 ; ' 'omnurcial Bank nf London, W. N. 1888, 213 and 234. (0 I'lumstead Water Co. v. Davis, 28 Beav. 545, and 2 De G. F.& J. 20. 062 AVINDIXG UP BY THE COURT. r.k. IV. Chap. 1. appeal (u) Sect. 5. ^ ^ ^ Appeal from tlio wiiidini,'-ui onler. Discliarge nf order UnJor the older winding-up acts, if an order wcr,' made upon the petition of a person not entitled to pi'tition the order was not void ; but it, and all proceedings umlir if, were allowed to stand, and its further prosecution Wiis, up.in ii proper application to the court, entrusted to a qiuiliikil person (.r). There is no express provision to this cHect in the Companies act, 1862, but the old winding-up practice is so continued that probably the above rule would ^tilI In- observed iij). After an order for the winding up of a company iiris jjec-n made, such order may be appealed from in the ordinary way (ci, by a person entitled to appear and be heard on the petition (n) in 21 days (1)). The apiiointraent of a liquidator dues nut prevent the directors of the company authorising an appeal ('"i, but wlien a limited company appeals without joining anyoiu' personally responsible for costs, it will as a rule be (jrdered t'l give security for ihe costs of the appeal (d). It does noL t'ollow that because the order is appealed against, proceedings umli it will be stayed until the appeal is disposed of (c). Before the Judicature acts, a Avinding-up order might liav, (i<) Padstorr Total Loss Assoc, 2o C'l). D. 137 ; Arthur Avcrwje Assoc, 3 Ch. D. 522; Ex parte Hanjrove, 10 C'h. 542; London Marine Ins. As^oc, 8 Eq. 18!) anil 193 ; Ex 2>arte Uakes and Fcek, AV. N. 18(J7, 101, and L. R. 2 II. L. :5(i!). (.r) 11 & 12 Viet. c. 45, §9. (ll) Soe tlie Companies act, 1862, §§ 82, 170; tlie latter .section was ivpealed by 44 & 45 Vict. c. 59, but .see § 4 of that act. (;:) 25 & 26 Vict. c. 89, 5 124. A conijiany successfully a]>pealing was allowed its costs out of a- own estate in Nntmud Savings Bank Association, 1 Ch. 554. (a) See Bro.^i.ford Navigation Co., -> Ch. 600. (6) Sec R. S. C, Old. Iviii. n: 9 and 15 ; National Eiinds Ass. Co., 4 Ch. D. 305. The time may be ex- tended by the Court of Appeal, a.s to which, see Nrw CuUoo, 22 Cli. 1), 484 ; Manchester Economic EiiibHin Socidji, 24 Ch. D. 488; Mad.Mf Irriijation and Canal (.V., 23 Cli. D 248. Hefmv' the JuJicatun: aa-. the limit of twenty-one days ilii not apply to appeals fnim wiiiiliii.- up orders. See ii'c UuidrAd B"n., 1 Ch. 428 ; AnijIo-Californi'Oi .Vc- in:j Co., 1 Dr. & Sm. 628 ; Pluimi'"' Jl'ater Co., 2 i:e G. V.k.l.M. Tl. fact that calls lunl lieoa iii.ule au-l other proceedin;^'s taken tliJ ii't lireveut an appeal. Sue Xatv'tfii Permanent Benefit Bu hfing Soc, ■> Ch. 309. (.) Diamond Fuel CV., 13 Ch,!' 400. 00 Diamond Fuel Co., 13 Ch. U 400 ; Photoijraphic Artists Assodi- fion, 23 Ch. D. 370. ('•) Soo R. 8. C, Ord. b-iii. r. Ki. and Kx parte Barber, I .M.ic. \ <-). l^:! APPEALS AND STAYING PROCEEDINGS. 663 f an order wuiv ;led to petition, Klings under it, ition was, iipnn . to ii quiilitieil o this cH'ei't in g-up practice is would still be iipaiiy ]\:\< iicf-n ordinary way (:. . the petit iim(i(: idiitor does not iig an appeal (<■). joiniii^i' anyone lie be (jrdereil t > !tdoes iu.lI'oIIo'.v 3ceedings uiid.r •der might haw (Ailhio, -I-I C'li. n. Economic BniWlm 1). 488; Mt(l-:^ 'anal Co., 23 Cli. D lieen discharged on motion or petition by the judge who made ''''^' ^^- ^•»»p- i- it; but now no judge can rehear an order, whether made by himself or anotlier judge, the power to rehear being part of the iippellate jurisdiction which was transferred to the Court of Appeal (,/"). Cases may occur in wliich a winduig-up order has been rightlv Sia.vin;,' pro- made, but m winch its lurtiier prosecution is not desirable, as order, for instance when the Court wishes to reduce the contracts of ;i life insurance society instead of making an order to wind the society u^) (,'/). In such a case, application should be made to till' Court which made the ord(>r, to stay the proceedings under it. Tills the Court has power to do on the application of any creditor or contributory (li) ; and the Court will accede to the application if it is satisfied that it is not for the advantage of the company, or of any of the persons interested in its winding up, that further proceedings should be taken (/). Thus in the case of The 'l]'or(:estcr, Ti'iihnri/, and Ludlow lliidivay Com- Woicestor, Tuiiliiiry, &c., li'inii(h), a winding-up order had been made, an official lliiKvuy manager had been appointed, all the company's debts had been '""i''*°-^- paid, and a surplus remained. It had been found impossible to make out a complete list of contrilnitories, as the allottees of a considerable number of shares could not be discovered, bnt the luiown allottees held the great bulk of the shares whieii had been issued. Upon their petition the Court ordered the fund in Court to ' e paid to them, the}" under- takiiirj to deal with it as the Court should direc.. o:id to pay tlie costs incurred in the winding up. So procet clings will be staved in order to enable a company to resume business if cir- cmnstances justify such an order (/), But a winding-up order is in the nature of a judgment for Winding-ui) 111- 11 /> T /• •! • order iu tlie tlie benent as well ot creditors as oi contributories (»i) J iiiul nature of a jUilglMCIlt. anil , |>. &25. (i) In Kx iinrtc Barhcr, 1 Mae. iS; C>. ITfi, proceedings pfuding an ap- peal were not stayed, (A-) 3 De C}. & S. 189. (/) 'South Ikxrnik Slate Quarry Co., 8 E(i. 088. {m] See § 82 of the Companies (/} «. XiaHi)-v Co., 12 Ch. D. 88 ; Munckukr Economic Bttildiinj Soc, ■li Ch, U. 488. ('j] Great Britain Mutual Life ■ Umance Hoc, 16 Ch. D. 247. i'O See § 8i) of tlie Companies at, 1802. A por.-ion applying us an iillccied contributory mui=it admit hiiii-elf to be a contributory. See act, 1862. 064 WINDING UP 15Y TIIK COURT. Bk. IV. Chap. 1. proceedings uik'gv it cannot bo stayed without yiviii^f tliose wlio Sect. 6. , • 1 • , , ^ " -i iiavc acquired rif^hts consequent upon it an opportinuty of up- posing tlie appliotion to stay proceedings (»). Conseqiienllv, an order to stay proceedings will not be nade, unless the con- ti'ibutories, and the creditors who have proved their debts, ]iav( had proper notice of the intention to apply for the order; aiiii such an order will not, therefore, be made upon notice df n motion to discharge a call (o), or to be struck off ihe li-^t of contributories (p). Again, where an order has been obtained and acted on and costs have been incurred under it, these costs nnist lie j.i-,,. vided for by those who seek to have further proceeiliims stayed ((j). Costs to lie provided for on stayiiii? proceedings. SECTION VI. -EFFECT OF WINDLXU UP AS REGARDS DEALl.MJ.S WITH PROPERTY. 1. Commencement of h-'huIUkj up. 1. Compiilsorily. When a petition is presented tn wind up a company by tlie Court, the commencement of the winding up dutes fn)iii tlu' presentation of the petition (;•). Hence the inq)ortanco, wIkh there are sevei'al petitions, of making a winding-up order, if possible, on that first presented. ]?ut if the petition is dis- missed, the winding up commenced on its presentation will obviously be at an end. When a resolution has been passed :o v;\\a\ up a company voluntarily, the voluntar}* winding up dates from the passinu of the resolution (.sj. .But if the company is afterwards ordei'td 2. Voliintaril ()i) See Viircir'.-: m.si, ;"> De (J. ^fao. & 0. 94 ; Undrrtnml'a mse, ib. 077 ; (Jlifton's ni-ic, ib. 743. As to serving tlie provisional liquidator, .see K.>: parte Coleman, 3 Du (!. & S. 1.3!). (()) Careiv's cuiie, •) l)e IJ. M. & G. 94, reversing S. C, 2 Sm. & 0. 1. (/() Ujul'nnmVs at.st', tt I)e (!. M. & (i. (177 ; Sliitrpui' n caxe, 3 Du G. & 8. 4!). {< a<.< , 1 K. ^:,'. 22;/^ pnrfi JFooliHiT, T) De U. & .■>. 11". and 2 De ( i. M. .t G. G(i5. (/■) § «4. Taurine ''o., 25 Cli. W 118. {.i) § 130, /.. ., the cnnlirnuitioii "I the re.solution wlioii tlie resolution is special. Sco Kiajirror l.ijc Aavi- ance ,Socii:lii, 31 Cli. D. 7H ; Danv aisr, G Eij. 232, and infra, c 2. COMMKXCr.MKNT OV WINDING UP, 665 ARDS DEAUN'OS to be wuiind up conipulsorilv, the commencement of the I'l^' IV. Cliaii. 1, " Sect. 6. wiiidiiip; up will (late from the time of the presentation of the petition on which the order is made (/) : hut not so as to iiiviilidiite what hns been done or to let in a distress (u). The ciiusfqiU'iKc of altering the date of the commencement of a wimliii!:; up is sometimes a good I'eason for not making a compulsory order when a company' has been for some time winding up voluntarily. An order to wind up a company subject to the supervision 3. Fiiibjcct to . ' ' . , .siiiici'vision. of the Court pre-supposes a prior resolution to wind up voluii- tiu'ily, and in fact continues the voluntary winding up. The ( nmmonceinent, therefore, of a winding up subject to snuer- vision dates from the passing of the resolution to wind up v..hi I'liiily, mid not from the time of the presentation of the pititiiin on which the order is made (r) ; and this is the case iiltliough a provisional linnidator has been appointed, and a conipulsory order made before the resolution for a voluntary aiding up wi.s passed, if the compulsorv order is subsequently (iiiinged into a supervision order (i/) ; and the Court lias no jurisdiction to alter this date (z). It seems that if a compulsory order is made after an order to wind up under supervision, tho date of the commencement iil'tlie winding up is not altered b}' the second order ('<). As ,\gai'ds life insurance compai'ies wi'ich have transferred Life insuiimco tluiir business to others, the enactment contained in 535 k 36 Viet. f. 41, § 4 (h), must not be forgotten; it in effect makes com pan 1 OS [ti §84. Tauiiiie I'o., 25 Ch. D. 118. («) Thotnaa v. I'atrnt Lionitc Co., 17 Ch. 1). :i50. (/) Einiitivr Life Assurance Sociclj, ■'i\ I'll. D. 78 ; Jl'i'iiton's case, 4 ( 'li. liii.iiiuld Ell -238; Ex parte C'ol- horiK ami Htrairhridye, 1 1 l'\ 478, ?§ 148, 1,^)1, and 164. Compare E.c )'ir/. IhviUunr, l,-,Ch. IJ. 472, whir- for the )iiiiiM)S(. of lixiu;,' the date of •oklieiitiMv-hiildi'i'M charge, the (\nU\ '1 v.hieh a ]iro visional li'iuidator «a> aiipoiutcil, was taken. (;() Eriprror Life Asmrance SocieUj, 31 Cli. J). 78 ; />/•;/ Docks (Jorpora- tioii of London, o9 Ch. D, 30(5. (;■) JVcd L'amberJand Iron and SI, el Co., 40Ch. D. 301. ((() Sei' United Service Co., 7 E(]. 70, where a eenipaiiy was lieing wniind uj) voluntarily, and an order was made on one petitidii to con- tinue such winding up, suliject to sii|ier\isieu, and a compulsory order was niatle on another petition, and was dated the day alter the first order. (h) Ante, p. 043. 666 WINDING UP I!Y TIIK COURT. Iraiwrtanco of tlio coiniiicnce- inent of wind- ing up. m I5k. IV. Chap. 1. tho commencement of the winding up of the pm'cliasing corn- Sect. G. 1- 1 • T ,■ 1 P^ny the connnencemeut ot tho -wnKluig up ot the selliiitf company, unless the t'ouvc otherwise orders ; hut tlie ciiatt- nient does not apply to a purely voluntary winding up. The exact time of the commencement of the winding up of a company is important, inasmuch as after that time great restrictions are put on all dealings with the property of tlio company, on all alterations in the status of its members, and on all proceedings by crclitors to enforce payment of dnir debts. The leading principle pervading the windiiig-nji provi- sions of the Companies act, 18(V2, is that nothing shall bedmie after the commencement of the winding up of a ooiiipaiiv except with a view to realise its assets and distribute theiu ratably first among its creditors, and then, if there is n surplus, amongst its members (r) . 2, J'JjTcct (if wiiidiiifi lip on (IcaUnijH with pro] icrtji. \ petition to wind up a company compulsorily is imt a /(^ 2)cii(h'iis{(l}. When an ord.?r has been made to wind uj) a conipamy com- pulsorily, or subject to the supervision of the Court, all dis- positions of tl.'e property, eft'ec s, and things in action of the company made subsequently to the commencement of the winding up of the company are void unless confirmed by the CoiU't {('). The winding-up order has thus a retrospective effect ; and the section in question apparently even renders void all disp i- sitions of property made previously to the order by voluntiirv liipiidators unless the Court expressly sanctions them (,/'). After a winding-uj) order has been made, no disposition of the company's property is valid unless made by the liquidators or the Court (r/). (f) This will be seou by e.Xiimin- before tlii.'< act, Ex parte Tliorntim, iug llie following sections, 85, 87, 2 Ch. 171. 95, 98, 102, 107, 109, 133, 153, 158, (,) § 15:). Lis pendens. Retrospective etl'oct of order to wiiid up. 1G3, 1C4, and 19(5 to 204. And see Ashhimfs cafc, 5 Eq. 223, and E.r parte GrisseU, 1 Cli. 528. (rf) 30 & 31 Vict. c. 47. See, (/) Sei, also, § 151. l!ut '[WK it' this is the true construcdju. (ij) Sec §§ 92 and 95. EFFECT OX DEALINGS WITH PROPEUTV. CG7 After IX resolution to wind up vol mtarily, no disposition of '•'^• II (oniiiuny's property can, it is apprehended, be made, except liv the liijuidiitors (h). It will lie observed that what arc avoided are dispositions liv the eonipany of its property, not transfers or payments to it, r.//., not a transfer of shares to the company (/), nor payment of ii debt to it (A-). Piivmeiits by the company after the commencement of the winding tq) are however avoided unless sanctioned by the court; and tliis rule applies even to the payment of a petition- iiii; creditor's debt if an order is made on his petition or on any petition presented previously to it (1). Li a reeent ease it was held that a customer of the Oriental Rank Corpcjvation, wh') had paid money in at a branch oflice of the ba)ik in tlie ^lauvitius in exchange for drafts on the head oftiee in liondon, after the presentation of a petition in London to wind up the bank, and the appointment of a pro- visional liquidator, but before any notice of these facts had, (U* oould have, reached the Maiuitius, had no right to have his money refunded, but was only entitled to prove in the winding up for the amount of the drafts jxiri jim^sii with other cre- ditors (//()• The Court will, however, confirm hond Jidc sales (»), uKU't- Uou" iiiiges (')), or other dispositions of the company's property made in the interval which elapses between the presentation of tiie petition and the winding-up order. Further, if the pro- perty in goods sold in that interval has passed to the jnu'- iliiiser, the Court will order tlie liquidiitor to deliver such ^i'lods to him (j)) ; but if the in'operty has not passed, the pur- elmser cannot obtain the goods ; ho can only prove against the company in respect of damages (q). IV. Chai). 1. cct. 6. .^i-., uiilielil. ./■,'r imrte Tliondm, (/i) See §§ 131 and 133. {m) Ex parte Guilkmin, 28 C!li. D. (i) Ex parte Uontmct Corporation, G34. ■'(-II. 105. (,i) I'Mr^on's ca.ic, 3 Cli. 443. (t) Mcrsoj Steel and Iron Co. v. (o) [. .V((i//,)r, BaiMn d- Co., 9 App. Cu. 312. tt4, an.l I) Q. B. D. 048. ( p) Pearson's case, 3 Cli. 443. {() E-x parte GreeHnvod,9L'\\. an ; (q) Ih. /'%* Co., II) L. R. Tr. 83. 0(18 \VINl)lN(i II' MY llll': cot 1! r. Ilk. ly. Chill). 1. I, ions iic(iniie(l on ii oonipiiiiv's property before tlic coni- Sect. (i, ■ ■ _ - meiiceiiu'iit of the \viii(linf,'-ui) are not avoided (/■), mid if n Liens. Wiltsliiiv I run C.imiKiiiy I'. (hciit Woslcm Uiiilway t'diii- piiiiy. Praiuhilent prcfereiK'c. debt due to a eonii)any lias been ecjuitably assigned before » petition to wind it up is presented the assignee's title i.s not iitVeeted_, by a subse(pient winding-np order (.s). Hul n li^n cannot be acquired alter the winding up has coiunu need, (•.(/,, a solicitor cannot retain documents of the eompany ('(niu' in his hands since that date (/). Jn connection with this subject, an important decision of the Court of (^)ueeu's Bench and l'lxehe(pier Chamber rcciuin-, notice. .\ company hiid agreed that a carrier should Inivi- ;i general lien on all goods carried for it ; the coinpiuiv was ordered to he wound up, and the li(pudator continued to employ the carrier without coming to any fresh agrccnu'iit with him. 'i'he carrier sought to detain goods sent by tln' liquidator until he should i)ay the debt due from the com- pany ; but it was ludd that the carrier was not entitled to do so (ii). The Court seems to have thought that the wiiuling-u]) order put an end to the previous agreement for a lion, and that the goods sent by the liquidator wgre not the goods of tin company. lUit it is submitted that neither of these views was correct. As, however, there was no i)lea on equitable grounds, the Court was not in a position to give due weigiit to tlie dirt'erence between an equitable security and a common law lien. ^Vhere a company is being wound up, whether by the Court or subject to its supervision, or voliuitarily, the doctrines of frau(hilrnt preference are applicable to it ; and with I'td'eroiue to th» ^e doctrines, the presentation of the petition in the tii'st tifto cases, and ihe resolution to wind up in the last case, is equivalent to an ict of bankrujitcy (/). It has been decided that a disposition of property, wliicli is invalid on groumU - ^^ iidsitiiin oi a ('onii)iiiiy s i)i'oi)('rtv ciiii ht; nnpciic .cd on tlic ■ ('101111(1 of fniudiilcnt prcforciioo, except for tin; benefit of the r tfi'iicml body of creditors (//) ; luid the disposition must Imve liccii made in contemplation of u windiii;^' up, mid without messiu'c (.:). I'ressure, however, by a director of iiii insolvent coiiiliiiny to obtain secniity for ii debt owin ((/). Under the Winding-up acts of A'ltsof 1848 1818 and IHli) it was held (t)— '""' ^"'"" lim of Court Hotel Co., C Va[. »i ; >y.(''s ac^e, 13 ¥a[. 255. Compare !''ijk Jackaon and li^hytc's case, 9 111. ]). 3i± (.!■' (/((.•>' J.i)jhl IiiiproniiK.nt Co. V. I\mll, 10 K(|. KiH. (;/) irHliiiott V. London Cillidoiil I'".. :!lCh. D. 147, alliniiiiig31 Cli. I). 42.'), whne it was held that ililirntiirc-hokk'is could not take 11 Iv.intiif,'!' dl' lliis docti'iiie to n;- fiiMT iiioiiey exclusively for their iiiVU lieiiL'iit ; mid see A'.f ^Jfu7c '■'lO/irC, lOCli. 510. (■.) Inns of Court Ilntrl Cu., 6 Eq. (•i ; E.c parte. lUrmimjhavi Bnnhbuj C'j., 6 Ch. 8.3. N.B. It i.s nrt every disposition of property which would he an act oi' lj;uii,h'. (/() Hutchinson v. Ifardimj, ]1E\. 501 ; TItompson v. Uaitrr.inl .'^'c'.vyf Co., 3 Ex. 310; Marijrc.jnr x. A'/''", 4 Ex. en ; Prescott v. in.ijoir^ :, Kx. 726 ; Marson v. Lund, 13 (,). li. Dt'l, But non-proof in the wi: diii;' up was no defence to an acti"ii, Mn:'- hende v. Sliijo, Ex. 381 ; I'mmUhav v. l.nivhi- horout/h, 11 C. B. 4i)s. Sr, , lo, j\Iac(jre(jor v. Kciloj, 4 K\. ^!ll; Hover a)ul Deal Pail. Co., 17 Sim. 18. (h) All unsatisfactory altidavit uf debt is not suliicient proof, llntdiin- son V. Harding, 11 Ex. 5(11. EFFECT ON ACTIONS, &.C. 071 had, so far ns h: was up, was at lilnily to , the company or its Mv. ;>(!"vx, 7 Kx. *i7. /u'(i.soH V. ][anUii[i,]i Ex, i/ijwoH V. Uiiiirrsal f<'.d'W !10; M'-tnirc.jor \. /v '''■)', 7^'Mcof/ V. 7A(./'"'-, .■' Ex. ..ohv.Lkh'/, i:i'.'. 1'. '■'■!• iroof in tlie wi. 'li":-; 'T at'eiice to an iictioii, .Vii.'- Sligo, dr., Hiiii '"■> l'* Sudlow awl K'iU'j'^ ■>••<: I- Penkii-il v. ''■>«»'''. 5 Jkanhhit^r v. /•"'''''*"" 1 C. 1-. 41).'^. Se:', tno, V. 7vVi^'!;/, 4 Kx. ^01; Deal Rail. Co., IT ^i'"' unsatisfactory utlitlavit uf , sulHcient proof, //"?■'"«• ■diiuj, 11 Ex. 501. iiieiTibers without fnrtlier hlndrauce ov delay, save that he ^^^- ^f- <^''^i'- ^ ciuihl not seize the property of the company vested in the official manager. Therefore the Court of Chancery would not I'estriiin stich creditor from issuing execution against a con- tribiitorv (/) ; nor would a court of hnv withhold from a judg- ment creditor of the comi)any permission to enforce payment of his debt from the individuals liable to pay it (ni) ; nor was tlurc anything to prevent such a creditor from suing the official manager for the purpose of obtaining a judgment, ilocree, or order against him («), or from afterwards enforcing siidi judgment, decree, or order against the individuals rupre- soiited by liim (o). ]?v 20 \ 21 Vict. c. 78, however, these rights of the creditors Altcmiion.s mailc . . '^ .l.y -20 kil Viet. of a cdinpany which was being wound up under the acts ofc.78. 1848 and 1819, were materially altered. For in the first place, tlie Master or Jtulge acting in the winding up was empowered to call upon the creditors, by advertisement, to meet and clioose one or more persons, other than the oilicial manager, to represent them in the winding up ; and after they had been thus called upon by advertisement, the creditors became parties to tho winding up (p). in the nr\t place, as soon as the creditors had chosen, or Whon Icivo liail boon recjuired to choose, representatives, no action or suit ,.'y,j'„i,.g,|^' could be either commenced or i)rosecuted by any creditor ngrtinst the official manager or the company, or any other })ersoii reju'csenting the same, or any person as a contributory thtreof, except by leave of the Master (jr Jiulge acting in the (/) Ee Dover and Deal Kail. Co., 17 Sim. 18 ; Re Phillips, 18 Beav. C2i) ; I'li'hird's (■((•>■(', 5 De 0. M. & G. [in) Mori.-'ife v. Royal Biit. Bank, 1 C. B. X. S. 07 ; Palmer v. Justice Assurance Society, 6 E. & B. 1015 ; Hillv. London and County Assurance Co, 1 H. & N. 398;"c'((nT) -20 &i 21 Vict. c. 78, § 1. See Mexican and South American Miiiinj Co., 20 Beav. 172. 672 wiNDiNO vv nv Tiir, cotniT. h) Unilev tlh! com[>iiMics act, 1S02. r.k, ly. oii:ii'. t. winding up (7). It was not, however, incumbent on tin M;i^ti ; or .lud^'c to rcqun-e the erenitors to choose a re]ir("<(iitativ, • and until they were required to do so, their riyht to mu,. .,vus not iitVeeti'd (;'). The Conij)iuiies net, 18(52, proceeds upon un eiitirelv diUcrent principle ; the lending idea being that when the wiialing iip „[ a company has once commenced, its creditors ought to Ix' paiil pari passu (.s). Tn order to give eft'ect to this princiiilc th, mt enables the Court, when a company is being wound u]) cithei compnlsorily or voluntarily (/), to stay actions and executions, not only against companies which are being wound up, IjutnlNj against their members in those cases in which such procce(liii<;s against them individually can still by law be taken. It has been already pointed out that the members of u c.iii. pany formed and registered under the Companies act, IH >i, ir under the former acts of 1856-8, are not liable to be pmcccilnl against personally by action in respect of the debts oftlic cum. pany (») ; but it may be otherwise as regards coinpiniics iMt formed under these acts ; and it therefore becomes niatcrinl for the present purpose to distinguish companies of tlic fii>t class -i'rom those of the second. 1. Where coiii- inuiy is bcin;^ wiiuikI up liy the Court. Restraining uctious, &c'. a) As regards companies formed and registered under thr ud. "With respect to companies formed and registered under tlie (,'ompanies act, 1862, or under the repealed acts of 18ijii-S|.ri, it is- enacted that at any time after the presentation et tln' petition, and before any winding-up order is made upon it, the Court may, upon the application (jf the company, er niiv creditor or contributory of the company, restrain i'uitliev \m- (q) II). § 7. Such leave was oh- taincd in Cliainbcrs, Royal JJritiA Haul,; .3 .Jur. N. H. 1114 ; if not oIj- taiuetl, llu; couit iu wliioli tlie action was Lnjiight would stay [)roi'A;e(linj,'s, Thomas v. irdls, 10 (J. B. N. S. 508. See, as to judgnienl crcilitors, ij'tcnit.s' V. Thrui,p,\iJuv. N. S. 1242. (r) Jiobson v. M'CreujlU, 25 Bcav. 272. See, al.so, Ex parte Tobin, 7 W. R. 4. (.s') See ante, i>. GGO, luile (r), jiil ]'jX parte Grifsell, 1 Cii. 5:i8 ; ,li- hurii's case, 5 Et[. 22;> ; J/'i7/.-/iii' Iron Co. V. Great Wcddii llail '.'., L. R. 6 Q. B. 101 & 77(i. (0 See §§ 85, 87, 138, Hi:!. (m) See ante, p. 27U et noj. (x) See §§ 17(j and 177 of il.e Companies act, 18G2. HTAVINH ACTIONS, KXKCUTIONS, SiC. 073 on till' Mii>tii' clivcsentutivi' ; Ut to sue was itively (litl'oi't'Ut ' winding up nf ii|4lit to U' \m\ ivincipli! lilt' net o\\\n\ up oithor and exccutii'iis, lUid up. I'Ul .\Ui ucli profi't'diii;;-! ikeu. nibin-s nl" u v><\\\- lies net, IH'Vi, >r 3 to be pnu'CLMli'd lebts of tin' I'.m- s coun>auics U"t beconu's luatrnal )auios of the t'n>t ippdiiii's in iiuv action, suit, or proecodin'' n<'ainst the com- '"*• '^'- *'''4'- 1- iiiuiy (//^ : iind lurtlK!!', tliiit after a windin^'-up order is nnide, 111) aition, suit, or other proceedinj^ shall be proceeded with or tuinmciu'ed npiinst the company, except with the leave of tlic Cimrt, iind subject to such terms as the eotu't may imposj (:). MdiVDver, where a company is being wound ui) l)y tlie Court, ,.)■ sulijoct til tiu' supervision of the Court, any attachment, <,ii|iU'stnition, distress or execution, put in force against the (stiito or etl'ects of the company after the commencement of the winding up, is declared to be void to all intents ((/)• Then' iirc no similar provisions expressly ai)i)licable to ^Vlierc ((niipany nmiimnies wincli are benig wound up voliuitarily ; out upon „,, vdluMtiuily. till' (ippliciitiou of the liquidators or any of the oontributories iif siuli C(jiupanies, the Court is empowered to restrain cre- ilitms from i^roceeding with actions, executions, I'vic., in like iimiinor as it can where a company is being wound n\) by the <'imrt(M ; and this power has been exercised on several occa- >-ii)ns(c). Neitlier a creditor nor the company, however, is •.ilipai'cntly entitled to apply to the Court to interfere in these (■uses ('/) . WluTc a company is being wo\ind up under tlie suj)ervision Wliere wimpany , , 1/1 11 ..... .is bcin^; woinul nl tlK' Court, tlie C ourt Jias tlie same jurisdiction over suits „p umlo!' sujior- uiul actions as it has when the company is being wound up *'"*"*"• coinpulsorily ('') . fluse enactments do not ajiply to proceedings by the 'i) Coiiipauiis act, 1SG2, § 85. (•:) lb, § 87. I'l)!!'. §1()3 \E.<- piirti' Founlriiiier, iilCh. D. 510. ln]{,irJi,vily.Ami- '"Mf,(fr.,y1,s.<(i. Co., Ir. L. R. .5 Cmii. Law, 3()8, tlie Court set aside a j i'l'.;uitMit t'litfivd up against a coni- I I'.my after it had been Drdered to he |Mniiiiil up. See infra. ('■) § 138. ('■) Actions stayed, Ki-ijnsham Co., MSBeav. 123 ; Life A.^simnirc Co. of Uojliind, 10 Jur. k. S. 702 ; Thames mite Glu.is Co. v. Land and Sea Tek- [s-ip'i Co., 1 1 Eq. 248 ; and 6 Ch. L.C. (!43 ; JFalhei- v. l!ana only material question to be considered is, whetlur there are .w y circumstances which render it necessary tliat tin action should he continued, or whether the claim uf the pLiin- tiff is not .V ich can be as easily dealt with in tlio winding up cs in an; '. ^.l-i .• way. If the claim sought to be enforced is c.'ipable of hiinif satisfactorily dealt with in the winding' up, other proceedings to enforce it will be stayed ((); but tliu costs already incurred by the creditor will be added to his debtO'). Even where a company is being wound up volun- tarily, actions 'igainst it will be stayed upon these terms (k). If the Court is of opinion that the action ought not to ]«■ stopped, e.g., where an action is instituted against directors ii other individuals as well as against the company, the Court will allow the proceedings to go on (l), but will require tlii (g) Exhall Coal Minimj Co., 4 De G. J.-& S. .377 ; Ex parte CameWij, 35 Ch. D. 6.56. (h) Ex pnytc Fourdrinitr, 21 Cli. D. 510. (i') Hermann Lnoy, Limited, 36 Ch. I). 502, action in Scothmd ; Inti r- natiowd Pulp and Paper Co., 3 Cli. D. 594, action in Ireland ; A mfralitdi Diriet ,sYf(»m Nar. Co., 20 E(\. 32.'), a suit to enforce a niaiitinie lien, and comiiare liiotlraiuhdoSul Steain.iltlp Co., 5 Ch. D. 282 ; lie Briton Medieol Assur. Astoc, 32 Ch. U. 503, suni- nion^8 to recover iienalties. See, aim), the next note. (j) Keynsluim Co., 33 Beav. 123 ; Life Assurance of EikjIiuhI, 10 Ji;i. N. S. 762 ; Hose d- Cn. v. Gunlln Lndye Coal Co., 3 Q. B. D. iXi wlieie the plaintitl's ousts niaiquar ing on the applicatidn to stay pi ~ ceedings were not allowed. (/.■) See Rose d- '".,. v. (,V(r,W Lvdye Coal Co., 3 Q. 11. D. i:!.>; Poole Fire Ihich; ilc, L'n., 17 Ej. 268, and other cases, ant", p. l"-. note ((•). (/) As in Wyleii v. Kxladl '-' Co., 33 Beav. 538 ; Hall v. ' Talaryoch, dr., Co., 3 t. ii. 1>. 74:'. and liio Grande do Sul Steumihipi". 5 Ch, D. 282. STAYING ACTIONS. 675 ,hey bave been •t hfts Aec'laveil ) proceed, if to I in force of nil ittacluneut, Xc, —i.e., as against company (/(). il the iminevous jspect to actions, rtskod to stay ill! itlered is, wliotluv necessary that tlu' laim of the plaiii- ith in the wiiuliiii! t to be eufovceil is II the wiiuhuil u^, .ayed (i) ; but tho L be added to liis ; wound up v(tlun- these terms (k). in ought not to Ite ngainst directors ov mpa»y. tbe Court ut will require th^ ICC of Eii'jhind, 10 .I'U', fi,m tt Co. V. Gar(l./.« Co., 3 Q. B. P. 23'. aintitV's costs of avv^ir- ippliciitiou tti sliiy I'f " e not aUtiwwl. ■o,c d- I'". V. ''■'"■''''• ' Co., 3 Q. !■• !'■ ^''^ hric/.-, <(•«•, '-'"•. 1' I:'; Ver cases, aiif', ?• *>''• (II' IVilhtl V tv. 'r.38 ; If"" ^"■ ir., Co., 3 O.. 1>. :^''' plaintiff to undertake not to issue execution against the ^^- 1^- Chap. l. company without tlie leave of the Court (m). So the Court lifts allowed a suit to go on until the defendants have answered, but no further (h). A mortgagee will not be restrained from cnforcinj; his rights against the mortgaged property (o). Applications for leave to continue proceedings agai"St a corapnnv which has been ordered to be wound up should be made to the judge who made the order (j)) ; and should be made by summons at chambers (7) : and if he gives leave to proceed, the appeal court will not interfere (/•)• The liquidator ought to be the receiver in actions in which receivers are necessary («). By Order XLIX. r. 5, of the Iiules of the Supreme Court, r. s. c. 1883, "when an order has been made by any judge of the ^^^^" ^* Chancery Division for the winding up of any company, the judge in whose court such winding up shall be pending shall have power, without any further consent, to order the transfer to si"'h judge of any cause or matter pending in any other court or division brought or continued by or against such company " (O- The Court has no power to order the costs of an action Costs, which has been dismissed by consent in consequence of the company being wound up, to be paid out of the assets of the (hi) ili-Eimt V. London ami Ilom- hujaml MnUt':rritm'an Ba)ik,\y. N. 1S66, 407 ; Hmjdl v. Currie, ib. 18G7, "5. (li) ThumefPliitiGkss Co. v. Ldud I'lMlSm Tehmqih Co., 11 Eq. 24S, iiuil 6 Ch. 043. ■/>) Lh,fi,l V. Lhnjd, 6 Ch. D. 33!) ; i tiiii'|i/iiii/.(/(' (^ltton t'^pinninij Co., 8 ICIi, D. loit, wliiTf the company was jWiiig wound up in the Coe.nty IraLitine Cnurt of Lancashire ; jjf'irr V. Anijlo-Itiilian Uinik, 10 |('li. D. 081, where the property liiibject to the mortgage was in lltaly, and proceedings were being Itaktn in tliat country ; and Hodson |v. Tta Co., 14 Ch. D. 859. (p) Wilnon v. Xafal Investment Co., W. N. 1867, GS. (g) Hagell v. Citirle, W. N. 1867, 75. (r) Thames Plate Glass Co. v. Land and Sea Teleyraph Co., 6 Ch. 643. (s) Perry v. Oriental Ifottls Co., 5 Ch. 420. See, also, Comphell v. Compagnie Generate de Jklleijarde, 2 Ch. D. 181. See, in a vcduntary winding up, Iioijte v. Pettws Llant- vit Coll. Co., il). 72(). {t) Compare Ord. li. r. 2a, of the Rules of 1875, and }radras Irriiia- tion Co., 16 Ch. D. 702, correcting Landore Siemens Steel Co., 10 Ch. D. 489. X X 2 !1 1?^ 676 WINDING UP BY THE COURT. Fracticc, ^^ 'J;.5"'gP' ^' company, although the action was bi'ought by sharehoMi-rs t'ui —■ the benefit of the comi)any (ii). Proceedings before a magistrate to recover i)ennllii's fiom n company may be restrained (.r). An iipplication to stay an action in the High (.'ouit slioul i be made by summons in the action, and not ti> the judge i:i whose Court the compau}' is being wound up (if). To sta^ otlier actions application must be made to l.nn. When a winding-up petition has been presented iiiul has imt been heard, the usual practice is to apply ex jmrtr to haw actions stayed until the petition is heard or disposed (jf : aii.l an order to this eft'ect is generally granted, on the usual uiidi i- taking being given as to damages. This practice was atldptid, after consideration, by V.-C. Wickens in London and Siihnrlm Bank (2), and has been followed since the Judicature nets In all the divisit)ns of the High Court. As reijards ctccntions. — The Court is much more reluctant to stfiy executions than otlier proceedings. To interfere with a creditor whose legal right is established, and who is ahout td reap the fruit of a successful litigation, is a strong nieasiiie scarcely to be justified by considerations of hardshij) to tlif debtor, but possibly justifiable on the princii)lo that eiiiiality is equity, and that it is unjust to other creditors that one sliiill obtain payment in full whilst little or nothing is hit hir thmi. Even as between creditors, however, some preference is t'aiih the reward of extra diligence ; and where a ( leditdr lias actually issued execution against a company before a petition to wind it up has been presented, and the sherilf is in posstv sion when it is presented, the Court will not interfere ami deprive the creditor of the fruits of his diligence ('(). u"l''^'> Staying exccii- tioiis. I'^xecutioiis levied before a wiiuling-iiii orJer, (m) Hull Ventml Drapery C'a., 15 Cli, D. 32C. (x) llritoii Medical, lir., Asuot:, 32 Ch. D. 503. (?/) Jud. act, 1873, § 24, cl. 5 ; Artistic Colour J'rintimj Co., 14 Ch. D. 50 ; IValker v. Jtannijher Din-, tillcry Co., 1 g. B. ]). 12!>; People's Garden C'(y , 1 Cli. D. 44 ; Needham V. Ilivfrs Protection Co., ib. 253 ; I'erkins Beach Lead Mininq Co., 7 Ch. D. 371, and K)mi(isfi/M', •'^•i^'i 4 Eq. 681. P STAYING EXECUTIONS. 677 sharehoUlers for umlei' very special circumstiinces, e.g., of oppression or Bk. IV. Clmp. l. Sect tVaml C'^- lint, as a rule, if the sheriff does not seize before — — '— the comniencenient of the winding up, the execution will be staved (') ; and receivei's appointed in the same interval will be lestriiined from acting ((""'"" '-'""*"''"■' i-e tlie sluviir was IfP' iion; Va>tvu;iic.,iX' {!') See J'erkiiis Umrh LpwI Min- n„jO,., 1 (.'li. 1). 371 ; Hill Vutkrij '"., 1 Ki[. (i4!), where the sheritl' li;ul suizi'd liefore tlie petition was I'ri'SPUtcd. (') Sei' l\.i: pitrtv liidliraif Sfn'l (ind riant V(K, hi re irilliiitim, 8 Cli. D. 1112; Lumlon and Dfi'oii JSifciiit Co., \i Kij. 1!)0, where the writ was l'"ll,'eil lit't'oiv tliL' iK'titiou was pre- ■entiMl. ('/) L'aiiiiMl V. Compafpiie (ihihak ■'' Mkijimlf, 2 Ch. 1). ISl ; Perry V. iirmlal HoteU Co., 5 Ch. 420. But sec where the winding up is voluntary, Bmjk v. IJettm Llnnhnt Co/!, Co., 2 Ch. D. 726. (t) Ilaxtov, etc., Co., 4 Ecj. G81. See the easi'S in note ( c). if) llicIuinU A Co., 11 Ch. D. (i7() ; /','.'• jiurti^ Ruilii-Ky Steil ami riant Co., In re Tuijlor, 8 Ch, D. 183. {(l) Vrna ColUrnj Co., 20 Ch. D. 442. (/i) L'wioirv. Cri'iil llritain Mntnnl l.if, As>>. Soi:, 17 Ch. D. COO. (0 Hill Pottery Co., 1 Eq. G49 ; Plit.< yn MhoH-yn Cool Co., 4 Ecj. ()8S) ; Kx pi.rtc linilwoy Sled and Plant Co., In re Taylor, 8 Ch. D. 183. See, also, Dublin Exhilntion Co., Tr. Rep. 2 E(i. ir)8. I': :||;f 678 Bk. IV. Chap. 1. Sect. 6. Exscntions levied after a winding-up order. Oitrnishoe orders. Judicftturc act, 1875, § 10. Stiiying distresses. WINDING UP BY THE COURT. creditor who lias actually got his money before the winding. up order is made (k). Executions issued after a petition for a windiiig-up order has been been jn'csented, stand in a different position, and ari' stopped (/) ; even although the property seized may be in n foreign coit'itry (m). But the Court will not interft-re witli creditors who have obtained judgments against the conipfinv in actions brought by or against it by its liquidators («). Judged. it is very doubtful whether the statutory provisions in question have any application to such a case. In the case of an execution by a writ oifi.fa., the iniiiortant date is that on which the shei'iff seizes ; in tlu- caso of an attachment of a debt by means of a garnishee order, the dat» to be considered is the date on which the order }tm is served; in other respects the rules applicable to the stay of these tWd forms of i)roceedings are the same (o). It has been decided that section 10 of the Judicature act, 1875, did not introduce into the winding-up of cumpftnies, section 87 of the Bankruptcy act, 1869, which deprived execu- tion creditors of the fruits of their execution, whore tlie sheriff had notice of the bankruptcy within fourteen days aftr sale {p) ; and the same ri'asoning (.'xcludes the iii)iditati(>ii of sections 45 and 46 of the Bankruptcy act, 1883. As refiards distresses. — The 10th section of the Judicature act, 1875, does not place a landlord in the position of a securcil creditor by reason of his power of distress, nor give him the priority for a year's rent, which is conferred upon landlords h\ the bankruptcy acts (q). As regards re-entry, the Ciuirt will (k) Ex jiarie Huwldns, 3 Ch. 787. {I) Ex parte h'aihraij Steel and Plant Co., In rr JVilliums, 8 Cli. D. 192 ; Waterloo Life Ins. Co., 31 Beav. 589 ; Peninsulnr BanHmj Co., 35 Benv. 280. See, also, Univerml Disinfector Co., 20 Eq. 162 ; iJinv- son's Estate Fire Clay Co., 19 Eq. 202, where leave to issue execution was refused. (m) Ex parte Scinde Rail. Co., 9 Ch. 557. (h) See Re Machill Smith, 3 Ch. 125 ; lie Lenck, 5 Ri. fit). (o) Stanhope SilkstoniCulliiTaiOi. 11 CIi. D. ICO. Seei/((m(cv.(.'i7^ il3. 942. (p) E.C parte Railwaij Sliel luul Plant Co., In re raijlor, S Cli. D. 183 ; JVithernsea Brickworkx, 16 111. D. 337 ; Richards <[• Co., II Ch. D, 676. Printing and Xiimiriad ii'ti/i'- tering Co., 8 Ch. D. 535, is overruW, and see infra, p. 685, note h. (q) Thomas v. Pafe7it Lionite (,U, 17 Ch. D. 250 ; Bridgewatcr Ktvjin- %i STATINO DISTRESSES FOR KENT. 679 fore the winding. windiiip-u]) order position, and ar- Y.ed may Le in u not iiitertVve witii st the conipanv in itors (h). liidec-d. visions in question fa., the iniiiortiin; in tho case of nii Be order, tlie datf der nisi is served; B staj' of these two he Judicature act, -up of comin\nies, ch deprived exeen- 1, where tlie sheriti' urtcen days ai'tr the aitplicatioii ut' BB3. of the Judicature ;)sition of a socureil nor give him the upon huidlords liy i-y, the Court will /.-, 5 E(i. fiS). Silkstoiic t\illien(ii.'o.. See HmnefV.Oih, te lidiluwj ^ttel dinl re Taylor, 8 Cli. D, m Brickwoiis, IC Ch. riU <(• Co., 11 I'll. D. and Numerical A'lui*'- . D. 535, is overruH X C85, note h. V. Patent Lioiiite Co., ; Bridyeicat'T Knm- not prevent a landlord from exercising his power of re-entry, ^^- ^^- ^'"'P- 1 • if iiis right to enter under the terms of tlie lease is clear (r). Further, the sections of the Companies act, 1862, under Where landlord ,,,. 1 ,, iTiii 1.1. . cannot prove consideration only apply to a landlord who seeks to distrain for the vent. upon goods of a coini)any, which is his legal tenant. Tliere- I'oro in Xcir C/fif Constiintioual Chih Co. (s), the Court decided NewCit^ Con- that it I'ouhl not prevent a landlord from distraining upon Con'i'pa""" floods which, although originally the property of the compan}', liad ceased to be so by being charged for more than their full value in favour jf debenture holders. Again when the land- lord has no right of proof against the company, cj/., where tlio company is not the legal tenant (t) of the landlord but is the inidertenant (») or the cestui que trust (.v) of his lessee, the Court will not restrain the landlord from levying a distress on the company's goods, even although the company may ofter to allow him to prove for his rent in the winding up (ij). In one case of this sort the Court allowed a distress although the landlord held tlie company's promissory i ote for the rent, and could therefore prove for it(;). But this ease has been iiucstioned and not without reason (a). In cases of this class, i.e., where thf^ company is not tenant to the person distraining, it is immaterial whether the rent, for which tlie landlord seeks to distrain, accrued due before, or nfter, the commencement of the winding up, for the landlord not being a creditor of the company in respect of his rent, has no right to prove for it in the winding up {!>). rn-iiKj Ox, 12 Cli. D. 181 ; Coal Con- sumerf' Co., 4 Ch. D. ()23. Stocldon Inm Furnace Co., 10 Cli. D. 3.35, can 111) ioiijjcr lie relied upon as an autho- rity to the contrarv. (i) (lemral Share Co, v. IFctleij P'Atmj Co., 20 Ch. D. 200. § 163 of the Companies act, 1802, does not apply to sueli a cn.se. (s) 34 Ch. D. 046. Tlie delientiire- hokln'8 after the hearing of the action in the Court of first instance, offered to give nil tlieir charge on the chat- tels ill favour of the liquidator. The court of appeal held this could not affect the landlord's right, which must be ascertained fiom the state of circumstances at tlie commence- ment of the winding up. (0 L'mhIij Graniti Co., 6 Ch. 462. ((() Curriaije Co-ojicratice Snj)}ily Association, 23 Ch. D. ir,4 ; J.'ujent United Service Stores, 8 Ch. 1). (il6. (,i) K.ihall Coal Minimi Co., 4 De (;. J. i^ S. 377. (i/) Regent United Service Stores, 8 Ch. D. 610. See, also, Lundy Granite Co., 6 Ch. 402. (;) ExparteGkmence,23Ch.'D. 154. (a) New City Constitutional Club Co., 34 Ch. D. 646. (h) See the cases in the last five notes, and the next note. •r 680 WINDING UP BY TIIK COiTUT. Ilk. IV. Clmp. I. If the Inndlord is the legal crotlitor of the coniiiiiiiv in Sect. 6. . , ' ■/ — - respect of the rent, which he wishes to recover l)y n distnss Wlicro 1nn(lli>nl . -i i • i (III! proi for upon the company s goods, lui must, in order to obtain hnw rent. j^ distrain under section 87, show either that it ia iii((niitnl)l,. for the company to insist on section 1G3, or tluit tlic niit ought to he paid in full as one of the expenses of the windintr up (c). In applying these principles to any given ciisc it j, important to ascertain whether the rent for which the IhikIIohI seeks to distrain accrued due before, or after, the cDiiimtiiK- ment of the winding up. If the rent accrued duo bi'toic tii> commencement of the wiiuling up, the landlord will not In allowed to distrain ((0. even though the liquidiitor jiiny Imw retained possession of, and carried on the company's ^vo^■i^^ upon the land (c) ; the landlord must prove for bis lU'lit like any other creditor (f). If the rent accrued since the com- inencement of the winding up, the landlord will be allowed to distrain for it, or receive payment in full, if the liciuidutor has retained possession of the property for the puiposes of t'.K winding up, or for carrying on the company's business, or in order to sell it or do the best he can with it ; for under tlit>i circumstances the rent is considered as (me of the expenses "i the winding up, and should be paid in full, like any otiin' debt properly incurred by the liquidator (/). But if tiio (f) Oak Pits Collierii Co., 21 C'li. D. 330; Lanmahire Cottnn SpiiniiiigCu. 3.5 Cli. I). ()5(i. A niortgagoi' who has a power of distress under an attornment clause, is in a less favour- al)U' position for obtaining leave to distrain than an ordinary landlord. lb. ((/) Tnithr/:' Xoiih StiiJJ'nril-ihirc VarrijvKj Co., It) Eq. 60, where the distress was for tolls in arrear ; Coal Coui^inncrs' As.'iociatinii, 4 C'li. I). ()2r), where the licjuidator retained possession, but not fur ariy purpose of liquidation; Thomns v. Patnit Lionite Co., 17 Ch. D. 250, where distress was levied after a resolution for a voluntary winding up had been passed, but before the order for a compulsory windin;,' uji, wlii'li superseded the voluntiiiv wimliii. up, h"! been made. (t) Xorth Ynrhliiri; Iron ('»,, 7 Ch. D. 661 ; Proini, llivjkii, n.i-l Dirov, 18 Ch. D. 6J!) (lase of i mortj,'agee with power of d.rtres-); South KniKUHiton Co-oiiinitiir tiiiijti)n Co-operativi atoren, 17 Cii. D. Ifil. (t) AWm St,;:l and (Ftre Co., 7 Cli. 1». 547 ; AH Emjraring Co., W. X., 1S89,38. llimkruptcy net, 1883, § 40. (k) The Court would have allowed I (li4ri's.s 1(1 be levied before the "immenccinent of a winding up, iilthouj^h a provisional liquidator iiiiijht have been appointed. Seo Dry fhrh Corporation of London, 3t) Ch. D. 30G, (l) Rates are not witliin the A]i- portioiinient act, 33 & 34 Viet. c. 3.'), and as the oeeujiiitiou by the eoiii- pany before the winding up is the same oceupation as thntbytheliiiui- dator afterwards, there is no change of occupation, so a.s to allow the rate to l>e apportioned under tlic Public Health act, 1875, 38 & 39 Vict. c. ort, § 211, sub-s. (3). JVearmoiith Croini Glang Co., 19 Ch. D. 640. (j»0 51 & 52 Vict. c. 62. 682 WINDING UP BY THE COtJRT. Uatcs after winding up. Uk. ly. Chip. 1. pnid pan passu with certain other preferentiiil tkbtg. ii Sect. tf. . , . possible in full, and at once. The rights of the local autliorities with rcspct to raU- asKosscd after the commencement of the winding,' iip, hav, given rise to some difference of opinion. In tlie two milieM oases on this subject {n), paynient in full was refused on the ground that the liquidator's occupation of the property liai not been beneficial, in that he had ninde no ])n>lit bv it. Th, Court of Appeal, however, in the other two cases which ]v,\\\ arisen (o), did not approve of this lest, but in botli cums ordered tlie rates to be paid in full, though the li(iuidiit(ir !iii4 made no profit imt of his occupation, on the ground tlmt th. occupation of the property was continued with a view to th' more advantageous realisation of the company's assets. In the latter of these two cases Lord Justice Bowen expressnl iii opinion, in which liOrd Justice Fry concurred, that thu tiui test is whether the liquidator's occupation has been btiuticiiil within the ordinary meaning of that expression in cases ul rating. The Court will not, except in a very extreme oasr, take into consideration complaints by the liquidator as to th( unreasonable amount of the rates ; if the assessment is wroii-r, he should appeal against it in the ordinaiy way (p). h) As nydrds companies not formed %i)t r-indinji \\\), Imv, the two tarlifit s refused oi; ilu- till' property li,i] profit by it. Tip cases which haw ut in both ci\M> ho liciuidiitor liiitl ; ground that tlie ith a view tn tlie )nny's assits. Li oweii expri'sscil an red, that the tin. las been btiicficial .>ssion ill cases ol •ery extiviue case, iqilidator us to tin ■iossinent is wrona. ay (i>). ■(• the act. [panios act, 1862. lanies foriiud ami lanies (V)Cit(i/, 1' Id §§ 196 tol98,aivl land 204. An action liiiuidat'jrs in wh^m property is vestni their official capacity as an action again=t formed under the act of 1862, or under the prior acts of Bk. IV. cimp. i. lg-,0 — IHSB, creditors of the company may be entitled to |)iiiceed against members individually ; and accordint,'ly the ait of 180'2 contains provisions enabling the Court, before any niiiiliiij,'-up order is made, to stay such iiroccedings upon the iilfliiatioii of any creditor both when the company has been ri'^'i>tered («) and when it has not (/) : only a creditor, how- iver, is entitled to apply for a stay of such proceedings («). Ihit after a winding-up order has been made, no action, suit, (ir otiiir legal proceeding can be commenced or proceeiled with ajaiiist any contributory in respect of any debt of the com- |iaiiy except with the leave of the Court, and subject to such linns as the Court may impose (.*). The reasons already iijticed for making a distinction between actions on the one liaiul, and executions on the other, and the decisions refer'\,a to in connection with that distinction ought to be borne in mind when coiLsidering these enactments (ij). Where a debt has been contracted by an nnincorjiorated DcMs contracted oipini'aiiy, and the company is afterwards registered, those tinn. ° persons niil}' who are members of the company at the time of refiistiation become members of the incorporated company. Conseipieiitly, even although such company may be afterwards w.iund up, the common law liabilities of persons who had Ceased to he shareholders before the registration of the com- pany lenniiu wholly unaffected, and may be enforced as if the Company had never been registered or ordered to be wound up. Thus ill Liiiiyon v. Smith {z), a cost-book mining comjiany Lanyon v. was formed, and whilst the defendant was a member of it the iltbt to the plaintiff was contracted ; the defendant sold and tiaiisfened his shares and ceased to be a shareholder ; after- wards tiie company was registered and ordered to be wound up. Ihe dcleiidant's name was placed on the list of contributories tilt- comiiany, Graham v. Edge, 20 a voluntary winding up, § 138. As • '. B. D. .J38; on aj)peal the action to the Court to apply to, see unte, Smith. w;i> decided to be against the liipii- diiiors peifoiially, see ib. 683. >) § 1!>7. (0 § -201. [u) See the sections 197 and 201. p. (376. (j/) Ante, p. 676. . (z) 3 B. & Sin. 938. Harvey v. Glough, 2 New R. 204, Ex., was a precisely similar case. See, also, i) §§ iy8 and 202, and see as to Fountain's case, 11 Jur. N. S 553. WT^ cm WINDING UP HY TIIK COURT. m'-^' Vk. IV. Cliap. 1. as a past member, but tlio plaintiff nevertheless sut-d him m law; and the Court of (Queen's Bench held that the actioii ought not to be stayed, inasmuch as the det'endaiit never \va- a member of the company being wound up, and his imnie ought not to have been placed on the list of eontributorics ..f that company. Fnrni of onlei'. Xoticc of the order. '';Hkv< SECTION VII. —PROCEEDINGS I'NDER COMPULSOUV WI\DlN-(i.rr OKDEIt.'*. 1. Geihrdlll/. A compulsory winding-up order is in the following form, " This Court doth order that the company be wound up by this Court under thi' provisions of the Companies luts, 18(;2 and 18(57 " (a). Under the Winding-up acts of 1«48 iiii.l 1H4{), tl»e order dissolved the company (h) ; but, under the mi t)f 18G2, the company is not dissolved until the winding up is completed (r) . When a winding-up order is made, notice is to be given to the registrar of joint-stock ct)mpanies (d) ; and the order nni^t be advertised, within twelve days after the date thereof, bv tlu petitioner in the London Gazette, and be served upon sudi persons (if any) and in such manner as the Coui-tmay direct (<. (a) Sec the ordiTs, fschcdule .3, form 3. For a form of order giviiiy tilt; li, and liis iinnit cunliibutorifs nf OllY WIXDLMMI' le following; ioim, pnny be woiind uji I Comimiiies acts, p nets of 1848 ami but, under tlie ml the winding up is e is to be given to ind the order niiM nte thereof, by tlii- served upon sucli jui-t may direct (c). Croohhan'K .l/i/H'/ Pinto Sihrr Minm 273, and l.ninhn "fi luntnce Co., V. Cb. 1>. As to disiK-iisiii? ertiseiiK'Ht uiuler tin- see 12 & 13 Vict, c. nd lie IForo'ter Vm Jur. 900, where the of an order of rtlir- expediency of ^villll• npany was disitenJt^l \ form of ndvertiseniont is Given in the tliird seliedule to the '"<• '}'• Chni'. l. rules iironiulfiiifed uiuler the act (/). Tliese rules apply as well to orders for winding up com- iiiilsorilv ns to orders for winding up subject to the supervision ,it' the Court (r/) ; but the renuiining proceedings imder such. orders are so different that it is necessary to distiiiguisli the one class of orders from the othei'. In tlie present place tlie iiioceedings under a compulsory order will be aloiie adverted to; Ihdse under an order to whul up subject to the supervision (.t' the Court will be noticed in a subsefjuent section. The general practice of the Chancery Division of the High tionoiul j nictico. Court (//), including the practice in winding uj) companies \intler the older winding-up acts, applies to the wiiuling up of ((unpiiiiies under the Companies act, 1802, so far as sudi jmutice is not inconsistent with that act, and the rules wliid. have been issued uiuler itij .uthority (i). Those matters only which have si)eciiil reference to tlie winding up of companies will be found in the iiresent work, and for detailed informa- tion on minor points of practice the reader is referred to the Companies act, 1862, and to the rules which, with a full index til them, will be found in the appendix. (/) Sue form No, "). (;;) See a.s to the lulveiti.semcnts, rule ; and as to the notice to tlie re;,'istiar, see §§88 and 151. (/i) Not the ]>ractice in l)ank- iiiptcv as distinj,Mii.-ay its delits and liabililii's, and tlie costs of winding up, whirh has been ordered to be wound up since -ind Nov. 1875, Jo.i(jih Stichf d Co., 1 ( 'h. D. 48. See us to the effect of this act, iiifrii, p. 71!) et .inj. ((■) See § 170, now rejicaled by 44 & 45 Vict. c. 5!>, see § 4 ami rule 74 ; Ludnls cust; 1 De CJ. F. & J. .53.3 ; E.C j)nrte Kiutrcn, 5 Cli. !15, as to costs. Althou^ili rules have been made under § 170, it is apprehended that '11 ea.ses not provided for the old winding-up ])ractice would be followed ; but see the section. As to servin;,' notices in the winding up on persons out of the jurisdiction of the Court, see Aii. '27fi; DuMin Grains C'"., 17 L. R., Ir. r>U. (o) Trades BanJ; Co., W. N. 1877, 268. (j)) Stor/orth Lane Colliery Co., 10 Ch. D. 487. (7) § 98- (»•) Kule 7. (.s) II). Ex parte }hbr,:i Pcd. & Sni. 243. It is presuiueil that a .■similar rule would apply where the l)etitioner delayed to draw \\\\ llio orner. The carriage of tlii' (inier will not, however, be given to ii person who could not liiiiiM'lf n'l- tain a compulsory order, if lii* olijeet is to force on procee'liii.'i which others are desirous nf lay- ing, Brighton (Jlub and Xorfolk Ho'-'' Co., 35 Beav. 204. PROCEEDINGS UNDER THE ORDER. 687 petition (0- Upon the retiu'n of the summons the judge may '"'k- IV. Chap. l. fix a time for the appoint) .lent of an official liquidator, and for the proof of debts, and for the list of contribute )i'ies t() be bi()Uf'lit in, and directions may be given as to tlie advertise- ments to be issued for such i)urposes, and generally as to the proceedings and the parties to attend (»). The proceedings under the order are to be continued by adjournment, and wlicn necessiiry by farther summons, and any directions may be t'iven, added to, or varied, at any subsequent time as niiiy be fouiul necessary (x). With respect to the attendance of parties, every contributory Attcnl.in.o cf on the list, and every creditor of the company whose debt or ^*'" "■^" claim is allowed, is entitled, at his own expense, to attend the pviiceedings before the judge, and to have notice thereof (//). Every person desirous of attending must leave the name ami lulilress of himself and of his solicitor at the judge's cham- Krs(.'). The judge, moreover, may appoint any one or more (if the contributories or creditors to represent before him, at the expense of the company, all or any class of the contribu- tories or creditors, upon any question as to a compromise with iuiy of the contributories or creditt)rs, or in and about liny other proceedings before him relating to the winding up of the coinpany, and may remove the person or persons so ii[i[iointed ('(). Service of notices, I'tc, upon contributories and creditors fJorvico of maybe eit'ected (wlun pei'sonal service is not required) by "'^ letter sent through the post ; and such service is to be con- sidered as made at the time the letter ought to be delivered in the duo com-se of delivery by tlie post-otHce {!>). The Court has no jurisdiction to sei've notices of orders or of other pro- [t] Rule 7. (>0 II'. (') 11). (;/) 111. til). As to the rij;ht of a criilitor til attfnil tlie cxainiiiiitioii I't persiins uiuU'r § 11."), see infra. r.) lb. r>± ('!) II). 01. As to (lischarginf; the (/)) IiulfS fi:} anil (U, ami .soe §§ (i2 & (!;? of tlu' ait. Service nf a (lcl)tor siinunoiis 1)\- li'aviii^; it at th lOL^istfred adihvss of a nifiulior will not 1)1' f^oiid if it is not bis tine or last known ari.% 10 Oh. 227. As to the service of notici'.s under the 33 Vict. pititioner from further attendance, Stannaries acts, see 32 Me Barkr's case, 1 Ue G. & S. 72G. c. 19, § 8. 688 WINDING UP BY THE COURT. Vfislics of credi- tors iiiul coiitri- l)Utories to be consiulted. Bk. IV. Clmp. 1. ceedings in a wiiuling up upon i)ersons residing out of the jurisdiction of the Court, if the notices are in substance the commencement of ju-oceedings against the persons on wliom they are served (c) ; but notices which are not of this iluuactcr may be served abroad (d). In all matters relating to the winding up of compaines, the Court may have regard to the wishes of the creditors or con- tributories {<■), and may direct meetings to be held in order t.i ascertain their wishes, and may api)oint a person to nit iis chai-man (/). AVlien the judge directs a meeting to hv luM under this section (jr), the official liijuidator is to give iiotin' in writing, seven days before the day appointed for the meeting', to every creditor or contributory, of the time and ])lace ap- pointed for the meeting, and of the matter upon whioh tlu' judge desires to ascertain the wishes of the creditors or coii- tributories (/<). The notice may, however, be given by ailvir- tisement, if the judge so directs (/). Votes may be irivuii at such meetings cither personally or by proxy (/i), but iid iivili- tor can vote by proxy unless his debt has been allowed, nnd no contributory can so vote unless he is settled on tliu list(/). The form in which the chairman of the meetin;,' i^ to report its result is given in the 3rd Schedule to the Itiiks, No. 48. The right of creditors and contributories to inspect tlu- books of a company being wound up, will be alhuh'd to htn • after when noticing the duties of the liquidatoi's. Inspection of books, &c. (c) AnijLi-A/iican SUatnf:hi2i Co., 32 Ch. D. 348. ((/) A'dthan, XeioiiKii <0 Co., 35 ( 'h. ]). 1 ; and Baron Lu'liicj'tt Cocoa irorlcs, Limiteil,\\. N. 1888, 120. (f) § !)1. Includin;^' allcf^ed con- tributorie.s, see § 74. (/) Sec, ns to suLmittin^' pro- posals with reference to matters aiising in the winding np, Slaftrr's Kxeatlor.'', .5 Ue G. & S. 34, and 1 De ( ;. M. & t}. f.4. g) § 91. The direction is to be testified by a nieinoramhnn si;;iiuil by llie chief ck-rk. See rule 47,iinil the furni in schedule 3, Xo. 47, (/() Rule 4"), and, for the form of notice, see the 3rd schedule, Xc 4-). (0 Rule 45. (/,) Rule 4(), and, fir tlie I'mm ut pro.vv, .see schedule 3, Xo. 4(!. (/) Rule 4(i. This, itis]in'siu:n'l, is what is meant by the expri's-i « "contributory of the company ' ai the end of rule 46. PROCEEDINGS UXDER THE ORDER. 689 Bk. IV. Chap. 1. Sect. 7. 2. Extraordinary powers of the Court. In order to enable the Court more eflfectuallj' to exercise its wimlinfj-up jurisdiction, certain extraordinary powers are con- fmed np*^'^ ^* which it will be convenient here to notice (/«)• I'he Court which will be referred to in the following pages will, however, be only the Chancery Division of the High Court of •liistice in England, the reader being refei'red to the act itself lor information as to other courts («). Substantially, however, their powers will be found to be much alike. In order to enable the Court to ascertain the real state of power to sum- its affairs, the Court is empowered, after making a winding-up "1"° t"'^ order, to summon before it any officer of the company or any §§ 115, 117. IKMSon known or suspected to have in his possession any of the estate or effects of tho company, or supposed to be in- debted to it, or any person whom the Court may deem capable of fiiving information concex'ning the trade, dealings, estate or etlects of the company ; and the Court may require him to (iroduce any books or documents in his power relating to the company (o), and may examine him upon oath concerning its iitlairs (p). An order may be made under this section on the Upon theappli. iipidication of the liquidator, or of a contributory or alleged liquidator or cimtribiitory ; in the former case the order is made ea; jj«/'?t', '^*'"*'"''"'^'"^y' mid the liquidator is not required to make any affidavit ; it is sutfieient if he makes a written statement showing a case of suspicion (q) ; in the latter case, the contributory is generally leipiired to file an affidavit in support of his application, and heimist servo the liquidator witli notice of motion, but he need mt serve the persons for whose examination the order is wanted (»•). It is entirely in the discretion of the Court whether it will in (ill) These extraordinary powers are in addition to and not restrictive "' tlie ordinary powers of the Court, U) As to tlie jurisdiction of the I Stannary Courts, see §§ 68, 83, 108, l(>, 120, and 172 of the Companies I »^t, 1862 ; 32 & 33 Vict. c. 19, and [W.UlYiet. c. 43. L.c. (o) § 115. (;j) § 117. For the summons, see form 54 in the 3rd schedule to the rules. (g) Gold Co., 12 Ch. D. 77 ; Im- perial Cuntinental Water Corporation, 23 Ch. D. 314. (r) Sec coscM in last note. Y y 690 WINDING UP BY THE COURT. Oomraissionci-s for taking evi- dence. Bk. IV. Chap. 1. anj' particular case exercise the powers conferred upon it. Tl,(. Court of Appeal will not interfere with the Court of tirst instance in the exercise of this discretion, except in a vtn extreme case (s) ; hut an appeal will he allowed, even bv ,i person ordered to attend for examination, if the Court of liist instance has decided on a wrong principle, or if it hud no jm:- diction to order the appellant to attend (0. The judges of the county courts sitting at places more timn twent}' miles from London, and the commissioners of bunkiuiits, and the assistant barristers and recorders in Ireland, and the sherift's of counties in Scotland, are made commissioners fur taking evidence under the act. and examining any witmssts whom the Court may direct to he examined by them («). Pro- vision, moreover, is made for the examination of persons in Scotland (.r). The proper mode of obtaining the attendance of a person for examination under §§ 115 and 117 is by summons, not li, subpo?na (i/). A person is not bound to attend unless his expenses luv tendered him (z). A witness who does not answer to the satis- faction of the judge acting in the winding up, or who refuses to produce documents which he ought to produce, is lialile to commitment (a) ; and a person is not jnstilied in refii~ii;;' to be sworn on the ground that it is necessary for liiin to have counsel's assistance during his examination {b) ; but it has been decided that he is entitled to the assistance ot ;i solicitor and counsel, and to be re-examined by them, nml t' have notes taken of his own examination (c). A person sum- Attemlancc for oxuiiiiiiati'in. (s) lb., and Heiron's case, 15 Ch. D. 13!). («) Whitu-oriKs case, 19 Ch. D. 118 ; Heiron's case, 15 Ch. D. 139 Conipave the d':ta ol' Jeasel, M. R., and Baggallay. L. J., in Gold Corn- pan ij, 12 Ch. D. 77. (") § 12G. {x) § 127. ((/) Enijlish Joint-Stock Bank, 3 E(i. 203 ; Gold Company, 12 Ch. D. 77. (z) See § 115, and iLrea-'s ci* J De G. M. & G. 2G, and 2 Sni, i: U. 87. (a) Stone's case, 3 Do G. & S. IJl (h) Ex parte Bunn, 3 Jiir. X. >. 1013. (c) Camhrian Miniinj Co., 20 Cii. D. 376 ; Breech- Loadiiuj Anwmvf Co., 4 Eq. 453 ; Mercliant.i' Co., \\<. Compare Ex parte Bann, 'i ivj. N. S. 1013. PKOCEEDINGS UNDER THE ORPEll. 691 ■rred upon it. 'llic lie Court of tiiM , except in n vri\ [lowed, even In ;i the Court of liist r if it luul no jui;" , places nioie timn oners of baukniiits, n Ireland, and ilic commissioners for ling any witni'ssei by tliem {ii). I'lu- ition of persons in idance of a person V summons, not Ir. 3S his expenses iir.j answer to the sutis- up, or who refuses produce, is liiilile ustiiied in refuMn'.; cessary for liim t'l :nination (/;) ; but it the assistance oi :i ed hy them, ami u ). A person sum- L15, and M'nWs w* '■> |G. 2(3, and 2 Sin, i li- case, 3 Do G. & S. \i'\ Irte Burnt, Ii Jur. N. >• \un Minimj t'o., -0 t'"- l-eech-Lomliiuj Anrnw) ]53 ; Mcn-hanh' Co., i''- 2)arte U'lnii, 3 Jw. niiuied ex parte, under § 115, must attend before a special ^^■ ixamiiior ('/). The examination is as a general rule entrusted — to the liquidator, but if necessary, the Court may entrust either the whole, or some part of it, to a creditor or contributory ; it vill then as a rule point out the extent and limits of the exa- miuiUion (i'). It niay be added, that neither the iiublie (/") nor (leilitors, who are entitled to attend proceedings at their own expense, whether under rule GO of the orders of 1862 {{/), ov under an order of court (//), have any right to be present at an (xamination under this section, and the examiner, if requested to do so, is bound to exclude them ; the Court, however may, in its discretion allow their attendance (/). I'nder this section it has been held that bankers (A), Tit- til h brokers (/), relatives [m), and other persons (/;), acquainted with the affairs of defaulting contributories.. or of persons sought to he put on the list of contributories, may be examined concern- ing sutdi contributories or persons, and transfers of shares by or to tluni. Moreover, a person is liable to examination under ^ Ho, altliough there may be a pending litigation between him and the company, and his examination may re! ate to the subj ect- raatter of such litigation (o). But it seems tliat a mere creditor "fa company is not as such liable to examination under this section (y)), although he can of course be cross-examined on his own ehiini. Tliis power of summoning persons for examination is con- IV. Chap. 1. Sect. 7. Ills liaMc CMlluillCll. (li) Tit' Cviitrad Corporation, 13 Eij. 27, .Seo Smith, Kniijht ct- Co., Eij. 23, as to objecting to the I tsamiiiur. ■•) Whitworth'n cas,\ 1!) Cli. D. lib. ;/) U'e.'itirn nf Canada Oils Co., C I til. D. 10!). [ij] Greij's Brcn-cni Co., 25 Ch. D. I Wi. '\j') Xunddi F.nuitahk Fire Insur- j||"^'Co.,27Ch. D. .')15. (n ft-ei/'s Bramrij Co., 25 Ch. D. 1400. ('■) Bniitfs case, 14 Eii. 6; Smith, UmjU i- Co., i Ch. 421. (0 Clement's '-nsr, 13 Eq. 179 n. (»() Sican's case, 10 E([. 675 ; i'Vu'/itc's ea.ie, 13 Eq. 178. (/() Trower and Lauvons case, 14 E(i. 8 ; ]}lo.cavi's case, 36 L. J. Ch. G87 ; Massey v. Allen, 9 Ch. D. 164. (o) Lisbon Steam Tramiraiis Co., 2 Ch. D. 575 ; and see Enijlish Joint- Stock Bank, 3 E(i. 203 ; he Cathcarf, 5 Ch. 703 ; Venahlcs v. Sclnceitxer, 16 Eq. 76. Compare Heiron's case, 15 ( 'h. D. 139 ; Imperial Continental JVater Corporation, 33 Ch. D. 314. (p) Accidental and Marine Ins. Corp., 5 Eq. 22. Y Y 2 G32 WINDING UP BY THE COURT, Itk C'orai)eIliii{,' )irnductioii of tloc'umeiits. . IV. Chap. 1. ferrod upon the Court for the purposes of the winding up am! Sect. 7. . o 1 ' — for the benefit of all the persons interested in it; and the Court will not allow the power to be used in a vexatious mnnin i or for an improper object (q). It may, however, be exeicisHl for the puri)ose of tracing monies < f the company, ami i;,- vestigating anj of its transactions (r). Monies due to a com- pany are part of its estate and effects within the meaniiif of § 115 (s) ; and a person's ability to pay what he owes niavbe inquired into {t). The power of compelling the production of documents uiih extends to such documents as may be required to hv, piodiued consistently with established rules (u). But the solicitors of a company being wound up are compellable to produce tli- accounts, deeds, and documents of the company in their pos- session, but without prejudice to any lien they may have against the company for their costs (x). Liquidators may be examined by contributories, or : lei'eil contributories, or by creditors, and be compelled to produce the company's books for inspection (//). In order to prevent persons liable to contribute to the pay- ment of the debts of the company from escaping from justia' and avoiding examination, the Court may, eitlier befure or after making a winding-up order, cause any contributory ii alleged contributory [s) to be arrested, and his books, \mm\ and effects to be seized, if jn-oof is given that there is probiiUc Power to an'est. (q) Heiron's case, 1.5 Ch. D. 139 ; Imperial Continenfal IVater Corpora- tion, 33 Ch. D. 314. (r) See Smith, Knirjht d- Co., 4 Ch. 421 ; Contract Corp., 6 Ch. 145. (.s) See Clement's cast; ubi sH2)ra, and Devon and Somerset Hail. Co., G Eq. 010. (t) See Bloxam's casi;, xihi supra, and others of that .sort. (m) An order will not be made ex ]iaiie. Commercial, dr.. Wine Co., 35 Beav. 35. (.(•) Capital Fire Insurance Associa- tion, 24 Ch. D. 408 ; Ex parte Paine and Layton, 4 Cli. 215 ; Cameron's Goalhrook Kail. Co., 25 Beav. 1; Potter's case, 1 De (}. & S. T«. contra, wa.s under the older act-. {y) Mutual Societij, 22 Cli. D. 714 ; Barned's BankiiKj Gi. i C 350 ; Gooch's case, 7 Cli. 207. Gooch's case as to the a(}i:!.'>>i .. lirjuidtitor must make. Sf-., ■ • ■, Emma Silver Minivg Co , Id Ci. 194. As to the right of plainlifis in an action to coiupcl the lii[uul:i;ii of a company, which has been wvdta up and dis.-iolved, to produtu iLi books of .such company, see ioW i and Yorkshire Bank v. Coojitr, 15 1 Q. B. D. 473. (z) § 74. :^A rnOCEEDIXGS UNDER THE ORDER. i'm le winding up, and ed in it ; and tlic a vexatious maniii r irever, be exercisul company, and i;,- iiies due to a corn- in the meiiiiing ut ■at he owes may le of documents only retl to lit! produced it the solicitors ofii »le to produce the upanj' in their pos- ey may have agrtinst butories, or ! logeil mpelled to produce ntributc to the pav- leaping from justice ly, either before or any contributory or his books, money, lat there is prob;iUi' (7. Co., 23 ]iwiv. 1; 1 De (!. & S. TiN inder tlie older acts. ^ocietji, 22 Ch. D. ; Bankimj Co., '2 C' case, 7 (Jli. ^^07, ■ as to the afti;!">i' ■ iiust iiiaku. Sc-.; ■ •', r Minivfj Co , 10 d. the rif^ht of plaintifts in compel the li(iuul;ii'r whicli liaslieeiiwoui.: olvetl, to produce I'u ,li company, sec Ami'' ' re Bintk v. Cooi'ir, IJ il cause for beheving that lie is about to abscond, or to remove or Bk. IV. Chaii. l. conceal any of his goods or chattels for the purpose of evatUng '- -' the payment of calls, or examination (a). In order to facilitate the collection of the comijany's assets, Sumiiiary onltr the Court may order any contributory settled on the list, and monty! &o., lUiy trustee, receiver, banker, or agent, or officer of the com- §§ '*^*^' '^''• pauy, to hand over any books, monies, or effects in his hands, and to which the company may be prima facir entitled (h). The Court may also order any contributory settled on the list to pay any monies due from him or from the estate of the person he represents to the company, exclusively of any calls made in the winding up (<•)• If the company is limited, pay- ment under this section must be made irrespectively of any .^et-off ; but if the company is unlimited, set-off may be allowed in respect of monies due from the company otherwise than on account of dividends or profits (d). The payment of calls is aki enforced by a summary order (c). All monies ordered to be paid under these sections are to be paiil into the Bank of England, unless specially directed to be paid to the liquidator (/). These summary powers of obtaining money belonging to the company were introduced in the AVinding-up act of 1848 (//) ; and it was at one time held that these powers ought not to be exercised where there was a serious question as to the right of the company to what was withheld from it (/<) ; but recent de- ars (a) § 118. See Ulster Land Co., Uwital, 17 L. R., Ir. 591, where a tonu of order will be found ; Im- i'(ml MrixaniUv Credit Co., 5 Eip :'o4, wflich .•allows that an order to ■:;i/;epioperty may be made, thougli ihe Court will not on the evidence enter an arrest. (M § 100, and .see also § 1G5. In liiitUi Imperial Corporation, 5 Ch. II 749, leave was yiven to serve a aiminoiis for this j)ur])Ose out of the juristliction. (c) § 101, and see § 16.j. ((/) § 101. As to set-oft; see iii/ni, § S). (() §§ 102 and 103. See, as to bankrui)t shareliolders, MitchelVs CHHC, 5 Ch. 400. (/) §§ 103 and 104, iind rule 38. See, as to enforcing payment into the bank, Leeds Jkiitkiny Cu., 1 Ch. 150. (;i) 11 & 12 Vict. c. 45, §§ 6(1 and ()7. See E.C parte Chadicick, 15 Jur. 5U7. {h) See Royal Hotel Co. of Great Yarmouth, 4 Kc|. 244 ; Hank of Gib- raltar and Malta, 1 Ch. 69, and Carpenter's and Jl^eiss's case, 5 De G. & S. 402 ; E.c parte Johnson, 1 Jur. N. S. 913 ; Ex parte Chadicick, 15 Jur. 597. ■■-» 694 WINDING UP BY THE COURT. lik. Not exercisable over sti':in!'er8. IV. Chap. 1. cisions show that the Court will exercise theso suminarv ixiwcis Scot. 7. ..... wherever it can do so without injustice (»). The sunnnnry powers conferred by § 100 cnnviot bo exer- cised against a person who is not a contributory, tniHteo, rr. ceiver, bunker, agent or oftioer of the company (A). 'i'luTifiiiv no order can be made under these sections on the trustee i ((Hi. mencement of the winding up (o) ; nor on a bankt r of tlii company who cannot be proved to have in his liands money ut the company (p), AVhere a company had borrowed money beyond its powers, and had deposited deeds as a security for it, the Court refusiil to order tlie deeds to be given up, although the debt wms ii. ! enforceable against the company (q). The Court is expressly empowered to examiiio into tin conduct of any director (/•), manager, liquidator, or other officer if it appears that he has misapplied, or retained iu his ,i«ii hands, or become liable or accountable for, any mouies of tlir company, or been guilty of any misfeasance or breach of tribt in i-elation to the company ; and the Court is empowered t.i Exurcisiible over (lirector.s, § le.'-.. (i) Pearson's case, 5 Ch. D. 33(i, and 4 ib. 222 ; McKay's case, 2 Ch. D. 1 ; StrtiKjer's case, 4 (,'Ii. 475 ; liance's case, (j ih. 104. See, iilsc, uiuler the acts of 1856-8, Cai-tHf Cool Co. v. Nortou, 2 Eq. 558, affirmed 2 Cli. 405. (A) E.C parte Haivldns, 3 Ch. 787. (I) Hnliiwirorth's case, 3 De G. & S. 102. See, also, Cox's case, ib. 180 ; and Xorthfield Iron and Steel Co., W. N. 1866, 253, where the Court refused to order a railway company to deliver up goods on which it chiimed a lien. (ill) liritish Guardian Life Assur- ance Co., 14 Ch. D. 335; and Feltnuis Executors* case, 1 Eq. 219, decided on § 1(55. (d) Marlbro' Cluh Co., 5 K^. 3(1.). (o) Ex parte Hawkins, 3 Cli. '>!. (p) Ee National Ban!;, 10Ki[. :'!)*. where the Court held that it i 'ulil not either under § 100, or iimier j 165, compel the Ijaiikurs dl .i company being wound up to iv- fund money inii>roi)erly jiaiil li the bank, but not jirovfJ to 'v the money of tlie (oiupany in question. {q) JFilsou's case, 12 Ki[. ■Mii. Tliis case did not, Iiowewr, tnni on any particular section of iIk act. ((•) A director de facto is within the section, Coventnj and Dij-"'< case, 14 Cli. D. 660. r. PROCEEDINGS UNDER THE ORDER. G9.J 30 suininnry powu^ lO cnnviot lie cxtr- butory, tnisten, re- my (A), 'riieivfniv s oil the trustee of Ml the executors nf • on a fully i)ai(l-iii) contributories (/n; ent after the cmhi. 1 a baiiktT of the lis hands luoney ol beyond its i)o\vtr>, the- Court refuse'l h the debt was not examine into tli. itor, or other otlicd stained in liis own any monies of lli. or breach of tribt ; is eniiiowertd to Clnh Co., 5 % ;ii:.'. Ht(wki)is, ;j t'li. It-'i. w»f(iLV(»/,-, lOEci.'JlK art held that it n.ulil mler § 100, or iin^ti 1 the liiuikiT-s ni ,1 ug wound up to IV- impioiierly paid to t not proved to W f the oompany in I case, \2, h[. M(i. not, however, tura ular section of tbi; ,.„ iipel him to renav such monies, with intorest, or to make Rk. IV. Clmp. i. ' ' Sect. 7. such compensation to the company as the Court may deem ju>t(x). This clause applies where a company is being wound un voluntarily (0. The applicatiim may be made by the liqui- U|ion tlie appli- ilfttor(") or any creditor (.*•), or any contributory of the coni- jy°"'^re(Htor, ,,any(//). It does not seem necessary, in order to entitle the °'" ''''"^'''"'""T'- li,|nidat('r to a sumnKms under this section, that the claim he seeks to assert should be one which the company itself might have asserted were it not being wound up ; but if any objection lie taken on this ground, the Court will order the summons to 1)0 amended by joining a creditor with the lirpiidator (z). The clause does not create au^ new liability, but only provides a >iiininary mode of enforcing rights, wh'^h must otherwise have Icon cuforeed under the ordinary procedure of the Court (u) ; ml proeeeilings can only be taken uuder this section when there has been some breach of duty towards the company (b), which has resulted in a loss to the company's funds (<•). Under the clause in question a director has been compelled tor (/'' fiift" is witliiii 'oventnj and Z)w'"' 660. [ij § 165, and see ui»ou it, lianrt's f !,., () Ch. 104 ; StntKjer's case, 4 t'li. 4;.'i; McKiqi's cuse, 2 Ch. I). 1 ; .l/.i-/;'|W Ihliik V. llinilcll, L. R. 2 (). B. 37. >) Itnno's CISC, G Ch. 104. ") As to the liquidator's afliJavit, ■x Mi'hiid Socifty, 22 Ch. D. 714 ; he will not, except under special ciivumstances, be ovilercd to make HI attidavit of documents, ih. (j) lucliidin^ a poliey-holder, &i(i's/( Gvitnluin Life Assurance Co., U Ch. D. 335. (;i) A laukiupt contributory has no light to make the application, '>/. Uretoii <'„., 19 Ch. D. 77. And K contributory who is the holder of iiilly paid-up shares must show that iliire ia some probability if his Jl'l'lication is successful, of there I'tiiig as>et3 to be divided amongst the shareholders, Cavendish Bcntinck V. /'tiiii, 12 App. Ca. 652. (■) National Fuyiih Ass. Co., 10 Ch. D. 118; but sec Coventry and Dirnn's case, 14 Ch. D. 660. In Uritisli Guardian Life Assurance Co., il). 33.5, the summons was taken out in the first instance by the liquidator and a creditor. ((() Cavendish Ilentinck v. Fenn, 12 App. Ca. 652 ; Flitcroft's case, 21 Ch. D. 519 ; Coventrij and Dixon's rase, 14 Ch. D. 660, and the concluding remarks in Forest of Dean Coal Min- iwj Co., 10 Ch. D. 450. (fc) See words " in relation to the company" and Amhrose Lake Tin Miniwj Co., 14 Ch. D. 390 ; British Sea)nless Paper ll'u- Co., 17 Ch. 1). 467. (t) Cavendish Bentinck v. Fenn, 1 2 App. Ca. 652 ; Coventrij and Dixon's case, 14 Ch. D. 660, where it was decideil that for a director to act without hohling the necessary share cpialification is not a misfeasance under this section. WTT 696 WINUINQ UP HY Tin: COUHT. Orders under §165. Bk. IV. Chap. 1. to refund dividonds and bonuses improperly declared iimi Sect. 7. , , , received by liini ( sought to charge the estate of a deceased director (;)); neitlm is a banker (q) nor a solicitor (r), as such within it. The Court cannot commit a director to prison for non-pav- ment of money which he has been ordered to pay under tlli^ section unless the case can be brought within § 4 of tlie Debtors act, 1869 (32 .^ 33 Vict. c. 62) (s). {(l) Ranee's case, 6 Cli. 104. (f) Oxford Benefit Building »S'of., 35 Cli. D. 502 ; Denham d; Co., 25 Ch. D. 752 ; Flitcrnft's case, 21 Ch. D. 519 ; Alexandra Palace Co., ib. 149 ; National Funds Assurance Co., 10 Ch. D. 118. (/) Alexandra Palace Co., 21 Cli. D. 149. Comjiare Stringei's case, 4 Ch. 475. {g) Fnglefdd Colliery Co., 8 Ch. D. 388 ; Ex parte Pelly, 21 Ch. D. 492. (h) Faure Electric Accumulator Co., 40 Cli. D. 141. This case also decided that in the ab.sence of dis- honesty a director could not be made liable under this section for sanctioning a transfer to a person who Bubse■•.. 35 Ch. D. 502. (k) British (luardian Lijf .l-v- ancc Co., 14 Ch. D. 335. (/) Ex parte WiUon, 8 Cli. 4.i. (»!) Carriage Co-opiratire .Swyj Assoc, 27 cii. D. 322; Milmi'- case, 13 Ch. D. 169; Pearson's ai*. 5 Ch. 1). 33(i. and 4 ih. 222. (n) Wcstuti'.'i case, 10 Ch. D. oVl (o) McKay's case, 2 Cli. I). I ; /'■ lluvigue's case, 5 Ch. D. 300. {p) Feltoni's Executors' ((/.<<•, ] Ki|. 219; Britvih Guardian Life Ai I'ector ( p) ; neitlin thin it. rison for non-iiav- to pay under tii;> S 4 of the Debtoi> limejit Buihliiuj > . InariliitH Lijf A'- • h. D. 335. IViUun, 8 C'li. 45. Co-opirative Sii}f!.j D. 322 ; Mikidf'' . 160 ; I'carswi'.' '■■!■■. iiul 4 ib. 222. case, 10 Cli. D. o?J. case, 2 Cli. ]). 1 ; /'• 5 Ch. D. 30(i. Executors' €(!■■<(, 1 Ei|. Guardian Life A.'""- 1. D. 335. te U>). ((.■!r, 31 Ch. D. 49<:. case, 13 Ch. D. 81.>. A director cannot set-off a debt due to him from tin; company l^l*- IV. Clmp. l. a|.'iiinst a claim made by the liquidator under this section (t). Lastly, the Court may order any past or present director, Power to onkr iiiiuiiiger, oflicer, or member of a company ordered to be wound '"'°''**^" '""' up by the Court, or subject to its supervision, or being wound lip voluntarily, to be criminally prosecuted, at the expense of tlif company, if it shall appear that he has been guilty) of any ,.ffince in relation to the company for whicli lie is crina lally responsible (u). 3. Mode of enforcing orders and appeals from them. By the Companies act, 1862, provision is made for enforcing the orders of the English, Irish, and Scotch courts in those p;iits of the United Kingdom wliicli are out of their respective jurisdictions (.r). Orders made by the Chancery Division of the High Court are enforced in the same way as orders made in an action in that division- are enforced (//). Orders to pay money may be tuforced by the ordinary writs of fieri facias, levari facias, tlcijit, and, if necessary, by sequestration (z) ; also by charging ciders ((() ; and by attacbment of debts (b). Wliere it is desired to issue afi.fa., an order should be obtained for pay- ment to the liquidator himself, and not for payment into the Bank to his account (c). Orders and decisions of the Court may be appealed from in Appeals (/) Carriaije Co-operative Siupphj Asm., 27 Ch. 1). 322 ; Ex parte Mil, 21 Ch. D. 492 ; Pearse's case, ib. 498, ». ; Flitcroft's ca^e, ib. 519 ; an.l see Ej: •parte Tlieys, 26 Ch. D. 587. (") §§ 1«7, 168, and see rule 51. (j) §§ 122 and 123. See Holly- M Copper Mininrj Co. , 5 Ch. 93, a.s t(i onlcrs made by an Irisli Court of Bankruiitiy. To enforce in Ireland an ED<,'lish order to pay calls, it is not nea;;siiry that it should be made iin order of the Chancery Division (f the High Court in Ireland by formal order. See Ilerculen Ins. Co., Ir. Rep. 6 Ei^. 207. (y) § 120. («) See a.s to jiersons abroad, lie William Hall, 2 Dr. & Sm. 284. (a) As to whicli sec ante, p. 460. (ft) R. S. C. Ord. .\lv. r. 1, which renders Ik Frankland, L. R. 8 Q. B. 18 ; Best v. Pemhrole, ib. 303 ; and Cremctti v. Crom, 4 Q. 13. D. 225, no longer applicable. (c) Leeds Hanking Co., 1 Ch. 150. See, also, Waterloo Li/'e Assurance Co., 4 N. R. 207. w G98 WINDING UP UV TlIK COUHT. Ilk. IV. Chap. 1. ti„. ordinary way ; hut notice of appeal niust ho. civ ciiM' (it a mcli 11 rcfiisiihi i. r to extend [\w reheiu" nn ortkr But nil iiidci' oil. Uity, innv pcrliniis made it, nltliiiiii.'li I' the three \veek> te (i). The Couil for the (kliiv i» le on the nutliDrity ed, leave to niiptal lilted (/). C. 2^7. tUuii C'liiil I'o., W. N, see //((// /'u/';/^ ''n, ;o extemliiij,' tiiui' tor Ex parte Kiveton O-nl Inciiiitrilmtoryca.v'^ 111, atier Have weuk- as givi-n in A'x parte i: G!)(>, ami m licfiiii S. lOlU, in both of appellant liiul paid pnrte Uulmjil, the put under teriii" U"t layiuent he Imil viw\i. tij, the Cciurt ivt'uA'l mch tonus. Ehbiv Vale Co.'sm. Esdailc v. Pam'- -fi-' Fresh evidence may he used on an appeal, cv(>n from a final '"<• •}'• ^'''"P- ^- order, hy special leave, which, however, is only Riven where the Court sees that no injuHtice will ho done hy admittiiij4 it {III). All order made in ehanihers cannot he appealed from unless till judj,'(' certifies that the matti'r was fully argued I)eforo liim("). N»>i" is tiiere any appeal from an order iiinde l)y a \m\\iv whom the parties have treated as an arl)itrator (<») ; iiiirwill an api)eal he entertained on a mere matter of judicial (iism'tioii (y)' Wiiidin^'-up orders themselves cannot ho appealed from, 'M'l'calM frmu , . , wiiidiiig-Hli witiiout special leave, niter three weeks Irom their date (q). onlois. Tlie .luilicature act, 1873, has vested the appellate jiirisdie- Appealn fmni . , . tliu MannarieM. tion id' the Lord- >N arden ol the Stannaries m tlie Court of Appeal (»■). SECTION VIII.— THE LIQUIDATORS OP THE COMPANY. The actual mauaj,'ement of the windiii}? up of a company is l'i'i''i^latois. eiitriisteil to persons called liquidators, whose powers and duties are extremely important. Liqiiidiitors are of two ditlereiit kinds : the one called pro- visional liijuidators, who are merely temporary otlicers in the nature of receivers and are appointed in order to protect the assets of the company until other liquidators are appointed (s) ; whilst the other kind of liquidators, called oflicinl liquidators. (m) Sfu JFeston's f^.sv, 10 Ch. D. 579 ; Ex parte Pearson, 3 L'h. 443. See, also, It. S. C. Ord. Iviii. r. 4. («) IFurrant Finance Co.'s case, 5 Ch. 88. (o) Sec Jud. act, 1873, § 49. Ex mt( mison, 7 Ch. 4.5. (p) Thames Plate Glass Go. v. Land and Hea Telegraph Co., G Ch. ''43 ; and see the cases on the ap- iiointniyiit of liiniidutor, and ante, !'. 690. (?) Ante, p. 662. (r) 3() & 37 Viit. c. GO, § 18 (3). The deposit ol' -lOl. required by the Stannaries net, 18G!), 32 & 33 Vict, c. 1!), § 32, must .still be paid, \\'i- be made by the chief clerk (/()• Fresh securities may from tiiiu to time be retpiired (.!■). As soon as an ofiicial li(juidator has been appointed, and ha> given security, his appointment is to be advertised (//). In the case of the death, removal, or resignation of an oiiicial liquidator, another is to be appointed in his room in Advertisement of appointment Vacancies. (o) London Qiiaji-'^, dc, Co., 3 Ch. 304 ; Xiirthem Asmm Tm Co., '> Cli. ()44 ; Albert Accraye Auk. /Ia5., 5 Ch. .597 ; Iiifo-national Contract Co., 1 Ch. i)-2'.i ; London, limnhay, and Miditirninfan Bank, ib. 525. See, also, Mercliant Traders' Ship Loan and A.^'fdciation Co., 15 Jul'. !)8l, and compare this M'itli the case cited infra in note (7). (//) Albert AvcriKjc Ass. Ass., 5 Ch. 597. (fy) A firiculturist Cattle Insurance Co., 3 De O. F. & J. 104. See the observations in this case as to the cnq)h)ynient of accountants. ()•) See Albert Arcraije .•!,<.<. ^l.«.,5 (^h. 597 ; Northern Assam Tea 'A, 11). G44. (s) Western Life As.'f. N»('., 5 Cli. 396. See, also, 35 & 3() Vi-t. c. 11, §4. (t) See § 92 and rule 1 0, ami tlio forms 10 and 11 in sclu-dul'' 3. 'llie appointment is operative huloiv tli^' .«ecin'ity is given, Ex jko'/c (Vmrfe- worth, 36 Ch. D. 303. (») Rule 12. (4 Rule 13. (;/) Rule 14, and see SLheJule 3, No. 15. OFFICIAL LIQUIDATORS. 703 the same manner as in the case of a first appointment, and the I'k. IV. Chap. 1. Sect. 8. moceedings for the pnrpose may be taken by such person interested as may he authoi'ised by the judge to take the iiune {:)■ The i)o\ver to remove a liquidator is exercisable not only if Komoval of tiio liquidator is personally unfit to act, but also whenever it ' ' ' is shown that it is for the general advantage of those interested ill the assets that he should be removed (a), i:.(j., where the piincipal creditors of an insolvent company ottered to pay the otlier creditors in full if the winding up was entrusted to their uwu nominee {h) ; so where the great bulk of the unsecured creditors were not satisfied with the liquidator originally iippointed (c). Personal unfitness includes favouritism to lursons wliose interests are opposed to those of others {il). The same principles apply to the removal of liquidators where thtMYimUng up is voluntary (c), or subject to the supervision (if the Court (_/"). The wishes of the persons interested are always considered in these cases, although they cannot always bu complied with. A liquidator can appeal from an order removing him (//). The reiiiuncration of the ofiicial liquidator is fixed by the Hem\iiicration. jiulge /' I : and is payable out of the assets of the company iiixt utter the costs of the winding up, including therein the Costs of his own solicitor (/). The oflicial liquidator may, with the sanction of the judg-', Solicitor, appoint a solicitor to assist him in his duties {k). The soli- citor's duty is to conduct all such proceedings as are ordina- and see sclieJulo 3, (:) Rule 1(5. ('() Ex parte Clmrksicoiih, 3G Ch. D. 299, explaining Sir John Moore 'hhi ilmmj Co., U Ch. D. 32f). (I) Ex parte Charhsicorth, uhi /«l>m. {c) Asmciatioii of Land Financiers, 10 Ch. D. 2()!). {(/) Sir John Moore Gold Minimj C'i,, \ihi mpra. (<) British Xiition Life A^s, Assoc, UE(i. 492. (/) Mancilks, tir.. Land Co., 4 El. 692. (f/) E.r parte Charlcun-orth, 3() Ch. D. 2i)!). (/i) See § 93 and vuk 18, Mnd tlu- order of May, 18()8, in 7 !>(. 10."), note, ami 3 Ch. l.xiv., and Cainian's claim, 7 Eq. 102 ; North of Emjland Ilanldni] Co., 3 Mar. I'v; G. 3(ii, note, and My.-iore Reefs Gold Miniiuj Co., 34 Ch. D. 14. (i) Drnnjield Silk.-'fiinr Cool Co. (No. 2), 23 Ch. D. 511 ; lie Masseij, 9 Eq. 3G7. (k) § 97. See na,ss's ca.w, 1 Do G. & S. 722. 'Wv'w 704 WINDING UP BY THE COURT. Ilk. IV. Chai.. 1. I'ily conducted by solicitors of the coui't (l). If necessaiv '—' — separate solicitors may be appointed to attend to conHictiii" interests (m). The solicitor is entitled to payment of Lis costs («) out of the assets of the company, in priority to pavinent of the liquidator's remuneration (o), but not in priority to the payment of expenses, which the liquidator has i)roperly in- curred (p). The solicitor has no lien on the file of proceed- ings in the winding up, nor on the documents relating thereto (q) ; nor has he any right to payment by the liquidator personally (?•)• Passing accounts. Official liquidators are required to pass their accounts like receivers (s), and to pay all monies which the}' may receive into the Bank of England (t) ; and to deposit all bills, iiotis, and other securities payable to the company in the bank, foitla- purpose of being presented by it for acceptance and payment (»). It is the duty of the official liquidator to take possession of all the company's books and accounts (r), and to make up and rectify the books of the company, and to keep books showini! its debts and credits, and also a ledger, containing the separate accounts of the contributories {x). The right of the creditors and contributories of the com- pany to inspect its books and papers depends upon the order which the Court may think fit to make upon the subject (.!/). The general rules direct all documents relating to the windin? up of a company to be filed and entitle every contributory and creditor whose debt has been proved to inspect and have copies of such documents (z). This rule, however, does nut ISooks of the company. Inspection. (l) Rule 68. (m) See lFester7i Life Ass. Society, 5 Ch. 396. (ii) See as to a solicitor demanding more than the scale fee, United Kimjdom, dr. Buildimj Association, 40 Ch. D. 471. (o) Ke Massey, 9 Eq. 367. {p) Dominion ofCancula Plumbago Co., 27 Ch. D. 33. (g) Ex parte Pulhrook, 4 Ch. C27. (»•) Ex parte Watkin, I Ch. 1). 130 ; iZe Trueman's Estate, 14 Eq. 278. («) Rule 19. (0 Rules 11 and 36. They have no business to lend money in their hands even for short periods iunl on good security. See Lord Roiiiilly'i observations in W. N. lH(J(i, 327, (i() Rules 37 & 41. (y) See §§94 and 100. S«', iuuUt the old acts, PeWa (ase, 3 Di- G. & Sm. 170. (j;) Rule 17. See WrigMs aw. 5 Ch. 437. {y) § 156. Ex parte Walker, IJ Jur. 853. (3) Rule 58. OFFICIAL LIQUIDATORS. 705 !). If necessary, and to conlllcting payment of bis )riority to pnyinent in priority to the ' has properly in- lie file of proceed- ocuments relatiiig t by the liquidator ,heir accounts like they may receive sit all bills, notes, in the bank, for the ce andpayment(i(). take possession of nd to make up and ;ep books showiiii; aining the separate tories of the com- ds upon the order on the subject 1;/). ing to the winding •y contributory and inspect and have however, does nut ll and 36. Tliey Iiave |o lend money in tlitir \v short periods anil on See Lord Honally's In W. N. 18GG, 327. I? & 41. 94 and 100. See, |l acts, I'eWs case, 3 De See n'ri(jhfs cast. Ex parte Walka; \'> in terms apply to the books of the company. If an inspection ^^- IV. Chap. 1. ofthera IS desired, an application must be made to the judge under § 156 of the act (a). An order for inspection will be made if the Court is satisfied that the inspection is wanted for n proper purpose (h) ; and liberty will be given to an account- ant to attend if there are complicated accounts to be investi- ciited (t). Inspection will oiilj' be allowed for the purposes of the winding up (d) ; and the liberty to inspect must not be abused ; and the Court will interfere to prevent an improper disclosure of the contents of the books (e). The rules of the company as to inspection do not apply to a winding up (/). As between contributories and alleged contributories, the Official liqui- books, accounts, and documents of the company and of the evidence against liquidators are jj»'?/n« facie evidence of the truth of all matters contributories. purporting to be therein recorded (g). Thi-^ is a very im- portant provision, and one of which unfair use might be made if there were no means of compelling liquidators to expunge from their books matters improperly inserted in them. But II liquidator is not entitled to charge a person with mone}' without notice, and then require him to show that he does not owe it ; and if any attempt to do so is made, the Court will order the entry to be removed, and throw upon the liquidator the onus of showing that such entiy ought to be restored (/;). Under the Winding-uj) acts of 1848 and 1849, the property Extent to which uf the company vested in the official manager (?) ; and all lepicsented the actions and suits by or against the company had to be brought conii'any under . , 1 .' e Acts of 1 848 [koragahist him as its representative {k). He, however, only aud 1849. (") As to summoning the liciui- it'ir as a witness, see Banied'a \MvujCo.,2Q]h 350. ('/) As to tlie extent of production, lanil the affidavit which a In^uidator lean be required to make, see Gonch's |(!w, 7 Ch. 207, and Mutual Society, |2iL'li. D. 714, and the case.s in the IBext notes. (f) lb. {i)Xor(h Brazilian Sugar Factories, |3i Ch. D. 83, and see Morgan's case, Ch. D. 620 ; and under tlie Stuu- L.c. naries act. West Devon Great Consols Mine, 27 Ch. D. 106. (e) See cases in note (6). (/) Yorkshire Fibre Co., 9 E(i. 650. {g) § 154, and see Arnot's case, 36 Ch. D. 702. (/() Ex parte Chadivick, 15 Jur. 597. (t) 11 & 12 Vict. c. 45, §§ 29 and 30. (/c) lb. §§ 50 and 51. See, on this subject, Grand Trunk Bail. v. z z 706 WINDING UP BY TIIK COURT. Bk. IV. Chap. 1. represented the company which was being wound up ; and • consequently, actions in which it was sought to charge, not tli( company, but one or more of its contributories, individuallv had to be brought against him or them, and not ajiainst the official manager (I). Moreover, where the company beinn wound up could not have been sued at law, either as a coii;. pany or by a public officer, there an action against the official manager as the representative of the company could not be sustained. The acts in question did not confer on comp!iiiif.s any capacity of suing and being sued, but simply dcclareil that companies having that capacity were to sue and be sued bv their official manager (m). Consequently, a company, not registered or in any way incorporated, but being a mere asso- ciation of individuals, could not sue or be sued by its official manager («)• In the foregoing respects the Companies act, 1862, isTerr different from the older winding-up acts. It is the duty i: the official liquidator to take into his custody the propevtvaini effects of the company (o) : and if no liquidator is appnintfd, or during any vacancy in his appointment, the property of tlie I company is in the custody of the Court (p) ; but the propertr of a company registered under the act does not vest in the | Under the Act of 1862. Brodie, 3 De G. M. & G. 146 ; Rid- dick V. Deposit, d-c, Associatiun Co., 9 Ir. Com. Law Rep. 84 ; McDowell V. Davis, 8 ib. 42. As to the mode of describing liiiii, see lie Heritiuje, Kay, App. 29. The official manager only represented the company if his appointment was valid. See 0[licial Manager of Plumstead Water (Jo. v. Davis, 28 Beav. 645, and 2 Be G. F. & J. 20, where the winding-up order and all the proceedings under it were invalid, the order having been made by the wrong Court. {I) Beardshaw v. Lord Londes- boro^ujh, II C. B. 498 ; McDowell V. Doyle, 7 Ir. Com. Law, 598 ; Armstrong v. Normandy, 7 Ex. 409. (m) Pritchard v. London and Birmingham, '^' v. Dr. & Sm. 501. b., and see Ri'-iid! v. Cr,"(-1 Ex. 123, ami Em/t i :i, 2 D(i G. F. Oi J. he plaintifl' ivpK.''cut>;iliiiit| )naUy r.-gist.Tcd CHinpaiiv.j defendant lumtlier. 94. Thu doctrines of ft-j jwnersbip aro not appli). 3. To sell the property and claims of the company bv auction or otherwise (c). 4. To do all acts, and to execute in the name and on behalf of the company all deeds, receipts, and other documents, and for that purpose to use the company's seal (d). 5. To prove as a separate creditor against the estnte of n bankrupt contributory for money due from him to the com- pany (c). 6. To draw, make, accept, and indorse bills of e.xcliance of the acts of one out of several liquidators, see Ex parte Agra and Mastemuin's Bank, 6 Cli. 20(5, and cases there cited. See, under the older acts. Basses com, 1 De G. & Sm. 722. {z) § 96. For form of order, see EocMale Property, dv., Co., 12 Ch. D. 775. (rt) § 95. See, as to unregistered companies, avte{t). A liquidator may serve a bankruptcy notice on a judg- ment debtor of the company, Ex parte Wintcrhottom, 18 Q. B. D. 44(5. The Court has no power to allow the solicitor of a creditor to institute proceedings in the name of the com- pany to get in assets in order to pay his own costs, Clnpe Breton Co. v. Fenn, 17 CI;. D. 19&. As to examin- ing director.^ in actions against tliem, gee Madrid Bank v. Bayletj, L. 11. 2 Q. B. 37. {h) § 95. British Waggon Co. v. La tfc Co., 5 g. B. D. 149, and Ex parte Emmanuel, 17 Cli. D. 3.'), a decision under the Bankruptcy act, 1869. The onus of proving that a particular contract is not beneficial for the winding up of tliu company lies on tlie person makiii},' the ns-ser- tion. Hire Purchane Co., Limita! v, Eichens, 20 (J. B. D. 3(S7. (f) § 95. Park Gate Waf^jm % 17 Ch. D. 234, claims against direc- tors for misfeasance under § 165. See, as to sales, rule 32, and a* to transferring the biisiiit'ss of the company, infra, p. 7 11 . As to t ipen- ing biddings, see Northumberlml mi Durham Banking Co., 9 W. R. 5S4 ; and as to getting in the legal e^^tato, Sheerness Waterworks Go. v, /'"'sn. 3 De G. F. & J. 36, and 29 lieav, 70 ; as to selling, subject to allc;;e'l incumbrances, UailUy v. Biiimnll 12 Eq. 472 ; as to purchases byylJ directors, and irregular proceidiiivt, at the sale, see A kxandm IMl CV., W. N. 1867, 67. (d) § 95. (c) § 95. As to his power to pen- ti(m for an adjudication of liank- .•uptcy against a contributory, set Williams v. Harding, L. !!■ 1 H. L. 9. RT. OFFICIAL LIQUIDATORS. 709 the following things Jut it, if previously 1 suiting it (z). ngs in the name and mpany so far as may of the same {h). of the company by name and on behalf ther documents, and inst the estate of a m him to the com- 36 bills of exchange ;on tract is nnt lieiieficial ding up of the company person makini,' the nsser- Purchase Co., LimiM v. Q. B. D. 3h7. Park Gnk Waggon Co., i34, cLiims a<,'ainst dirto- feasance under § 16.i. sales, rule 32, and as ing the business of the i/ra, p. 711. As to open- see A''o?-i2i\. nk of Hindustan, S:. v. iicial Assoc, L. R. 2 P. eiilarL'ed by the Joint Stock Companies arrangement act, 1870 ^^- IJ. Chap. l. (H3 it 8-1 Vict. c. 104), wliich (§ 2) enacts that, ■ " Wlieie iiiiy coniproinise or arrangeniPiit shall bu proposed between Wlioru corapro- iciinipttnv. which is, at tlie time of tlie piissiii;^ of this act or afterwards, in "''»o t"""!"-''"! '',.,■ I '.1 1 . ■! 1 111 the Court raay the course ot limit,' wound njs either volunturdy or by or under the super- ,,^,,^^ ^^ meeting virion of the Court, under tlie Companies acts, 1862 and 1867, or either of ,,f crediiors, llidu, and the creditors of such company, or any cltiss of such creditors, it *"•> *" decide 4ill lie lawful for the Court, in addition to any otlier of its imwer.s, on the comprorai.Ho. application in a .summary way of any creditor or tlio li(iuidator, to order thit a meeting,' of such creditors or class of creditors shall ])e summoned in .iiili manner uh the Cuurt shall direct, and if a majority in number repre- Miting tliree-fouilhs in value of such creditors or class of creditors present titliirin person or by proxy at such meetinf,' shall agree to any arrangement 01 mmpromise, such arrangement or comprondse shall, if sanctioned by an lidir of the Court, be binding on all such creditors or cla.ss of creditora, as thf case may be, and also on tbe li(pudator and contributorie.s of the said company." The order in which the sanctions required are obtained is immaterial (t). The sanction of three-fourths of those present is sufficient (?/). Unanimity is not required, and the opposi- tion of some creditors is not fatal (,r). But schemes for nnangement under tliis act have failed because of the impossi- bility of ascertaining and valuing the claims of the ci'editors (y); and because those who voted for it had voted in respect of debentures payable to bearer and not produced, and had not voted 'wHayirfe in the interest of the company (2). So where a company induced a judgment creditor not to issue execution again.st it, and petitions by a creditor and the company wei'e then presented for winding up the company, and a scheme of anaugement was proposed and assented to by all the creditors except the judgment creditor who opposed it, the Court declined to sanction the scheme (ft). The assets of the company may be sold and realised in the Transfer of ordinary way by auction or private contract as may be thought {() Dynevor, d-c. Collieries Co., 11 {y) Albei-t Life Ass. Co., 6 Ch. t-'h. D. 605. 381. («) Bessemer Steel and Ordnance (3) JFedgtvood Coal and Iron Co., 6 i\ 1 Ch. D. 251. Ch. D. 627. U) Tunu Rail. Co., 10 Ch. D. (a) Rieiiards n its business (b). It is, however, to be remembered that the Court can stay the winding-up proceedings altogether on such terms as it thinks proper (c) ; and this power, coupled with that nf selling the assets of the company (il), and of comproiuisinif with the creditors and contributories (<•) is, it is conceived, sufficient to give the Court jurisdiction to s'anction such a sale as that under consideration upon any terms the Coint nmy judicially approve (/). But in the case of the Albert Life Asmmnce. (J(m]mn]i{']\, which had absorbed several other companies, the Lord .Iiistiie James considered that a majority of creditors could not biml a minority to accept a composition ; and he refused to sanction a scheme for reconstructing the Albert Company, iiiid for pay- ing its creditors and the creditors of the absorbed conipnnics ii composition, by calls, and for transferring to another coiiipanv the assets of the Albert, and the monies proposed to be raised by calls. Liquidators who act without the sanction of the Court in matters requiring such sanction, expose themselves to serious risks ; for if loss ensues to the company the liquidators nniy be compelled to make it good, and if they sui' or (Icfciid an action unsuccessfully, they may have to pay the costs per- sonally (/«). But an order made in an action and direotinj,'a liquidator to pay the costs personally does not necessarily pre- clude him from afterwards obtaining such costs out of tlie assets of the company (i). The consequences of not obtainini; Acts (lone with- out sanction of Court, (6) See §§ 89, 91, 95, 159, and 160. The doubt has ai'i.ien by reason of § 1(51 being in terms only applicable to a voluntary winding up. Tiie act 31 & 32 Vict. c. 68, only applies to companies being wound up when it passed. (c) § 89, ante, p. 663. (d) § 95. (e) Ante, p. 709. (/) See, as to winding up, subject to supervision, E.c parte I'oul.'s Kf'- cutors, 8 Ch 7o2 ; Imp. Mtn. C.aiit Ash., 12 £([. 504 ; Aip-a and ihfl'J- man's Bank, 12 Eq. 509, note. (ij) 6 Ch. 381, and see Geiml Exchange Hank, AV. N. 18fi7, 03. (/i) Grand Trunk, dx\, Eail. Co.x. Brodie, 9 Ha. 823, and 3 De G. M. i G. 146; Cuhbvell\.Emest,27M\: 39 and 42. (t) lb. See, on this subject, rnOOF AND PAY^IENT OF PEnTS. 713 tlu' i)()\vt'r of tlio II a hrU' of a roiu- (led to curry on its red that the Court lier on such tcrnw mpled with that oi , of comimniiisiiii,' s, it is conci'ivcil, unction Hiich ii side ns tlie Court luiw rann' Compnnii {ij\ 18, the Lord .lustico )rs ♦•Duhl not biiul refused to sanction npauy, lunl for pay- sorbed coinpftnies ii to another compauv roposed to be raised m of the Court in emselves to serious the liquidators may suf or defend an pay the costs per- ion and directin;; a not necessarily pre- costs out of the :es of not (jbtiiiniu;; ,11, P:.c iwrte Pooh's E.f 7(12 ; Imp.M>:r':Coli< G(i4 ; Aip-aand MaA'- 12 Eq. 509, note. 381, and see Genml :,nk, W. N. l8). In adjudicating upon the debts the judge may either allow them upon the official liquidator's affidavit, or require them to be further proved (q). Notice of allowance or disallowance, as the case may be, is to be "iven to the creditors by the official liquidator {)■) ; and those creditors whose claims have not been allowed are to liave notice to come in and prove by a day named in tlie notice (being not less than four days after the notice), and to attend at a time to be therein mentioned, being the time for adjudi- cation (s). Under the acts of 1848 and 1849, it was held that the master or judge acting in the winding up must examine into every claim brought in before him, and either allow it or disallow it, or allow it as a claim only : and must do this after liearin" such evidence as the claimant might be able to adduce ; and must not allow a claim as a claim only, in order to avoid the consideration of the more difficult question, whether the claim ought to be allowed as a debt of the company (t). These rules are as applicable under the act of 1862 as under tliose oi 1848 and 1849. If the claimant refuses to produce what evidence he has relating to his claim, it may be disallowed («). Interrogatories may be administered lo him (x). Creditors coming in and proving their debts, pursuant to notice from the official liquidator, are entitled to their costs of proof (i/). Creditors' cluiiu to be investi- gattid. Costs of proof. {p) Rule 22, and see the form of affidavit in schedule 3, No. 17. (q) Rule 23. (r) Rules 23 and 24. (s) Rule 24, and .see the fonns in schedule 3, Nos. 20 and 21. (0 See PrichanVs case, 5 De G. M. & G. 495 ; and Terrell v. Hutton, 4 H. L. G. 1091. As to bringing actions to try a dicputed deht, see East of England Banking Com- pany's case, 6 De G, M. & G. 505, and 13 IBeav. 426; Ex parte Gwjn, 1 Jur. N. S. SllO ; Ex imrte Hiijijim, 2 ib. 178. As to enabling a creditor to prosecutu his claim in forma piu- peris, see Ex parte Fry, I Dr. & Sm. 318. (u) Gonstanlinopk ami Akxamin Hotel Co., 35 Beav. 34!). (.t) Alexandra I'alMe Co., U Cli- 1). 58. ((/) Rule 27. PROOF AND PAYMENT OF DEBTS. 715 The result of the adjudication upon debts and claims is to be stated in certificates to be made by the chief clerk. The certificates are to state whether the debts or claims are allowed or disallowed, and whether allowed as against any particular assets, or in any other qualified or special manner (s). A creditor whose debt is allowed is informed by notice when and wiiere he will be paid (a). The sum payable to him by the company is a debt due to him and can it seems be attached in the hands of the liquidator under a garnishee order {b). If the judge acting in the winding up disallows a claim brought in before him, the crc litor may appeal from the decision {<■) ; he can also, where necessary, apply for leave to take sueli proceedings as he may be advised, for the purpose of establisliing his case by action (d) ; but it is now seldom if ever necessary to do this. Ou the other hand, if the official liquidator or the contribu- tories, or, it is presumed, the other creditors where they are prejudiced, are dissatisfied with the allowance of a debt, they can appeal (e) ; but if the official liquidator appeals, the con- tributories or other creditors are not usually heard with liim(/). The time for appeal is the same in this as in other cases (;/). Debts contracted by the liquidators in winding up the com- pany must not be confounded with debts contracted by the company, and provable agauist it (//). Debts properly con- tracted by the liquidator are part of the expenses of the winding up, and are payable in full out of the assets of the lompany in priority to the other unsecured debts of the com- pany (i). Dk. IV. Chap. 1. Sect. 9. Certificate of debts. Notice of payment. Appeal by creditor. Appeal liy otticial liiiui- dator. Debts contracteil liy tlie liqui- dator. tiitinopk and Akmndm Beav. 349. idra Pahwe Co., lii t'li- (!) Rule 28. n) See the rules, schedule 3, No. •23. (h) Prichard's clavm. 2 De G. F. & J. 354. Compare Cowan's estate, 14 Ch, D. 633 ; Re Hunter, L. R. 8 C. P. 24 ; Dawsm \. Malley, It. Rep. 1 C'jiu. L. 207. (o) Ernest v. h'icholU, 6 H. L. C. «1, [i) As in Armii*rmig's case, 3 De Q.&S. 140. («) In Ex partf Chiiyn, 1 Jur. N. S. 300, a contributory appealetl. (/) He Nonvich Yam Co., V.i Beav. 428, note, where, however, the contributoriea were heard. See, too, Bothiiin United Mines, 23 Beav. 385. {g) Ante, pp. 697, 698. (Ii) See Ex parte Clark, 7 Eij. 550 ; Ex parte Smith,, 3 Ch. 125, both of which were cases of set-off. (i) See, as to distresses for rent ami 716 WINDING UP BY THE COURT. Bk, IV. Chap. 1. Sect. 9. 2. Debts provable. Debte provable. The Companies act, 1862, has for one of its primary objects the ratable payment pari passu of all creditors and others Contingent debts Iiaving claims against the company (k) ; and not only all debts and claims to damages. actually payable, but all debts oi the company payable on a contingency, and all claims against it, present or futuie, certain or contingent, ascertained or sounding only in damages, are admissible to proof against it (l). The value of those debts or claims which are subject to any contingency, or sound only in damages, or which, for some other reason, do not bear a certain value, is to be estimated as justly as jjussible (hi), according to the value thereof at the date of the winding-up order («). But this last rule does not apply to cases of con- tinuing damage (o), and has not been always regarded even in other cases, the date of the making of the claim having been preferred ( jj). A claim which is contingent at the commence- ment of tlie winding up may be proved for in the ordinary way if it ripens into a debt during the continuance of tlie winding up, whether the time limited for sending in claims has expired or not (q). Tlie Companies act, 1862, authorises liquidators to pay any creditors in full under certain special circumstances mentioned in the act (>■), but contains no provision to the etleot that one class of credit(n's is to be in any better position than any others. The general scheme of the act is that all shall be paid out of the assets of the company pari passu (s). Thus a landlord has no priority for arrears of rent unless be is in n Priorities of debts. rates, (tnte, p. 678 et seq, and as to secured debts, Ex parte Grissell, 3 Ch. D. 41 1, and infra, § 12, under the head Costs. (k) A nte, p. G6li, mAa (c). {I) § 158 ; see, too, §§ 159, 160. See, as to remoteness of damage, Johnston's claim, 6 Ch. 212. (»u) § 158. The valuation of annuities and future and contingent liabilities is in the case of insolvent companies now governed by tlie rules in bankruptcy, Jiid. aot, 1875, § 10, infra, p. 719. {n) Kule 25. (o) Cambrian Steam Packet Co.,i Ch. 112, and 6 Eq. 396. (p) See Kellock's ease, 3 Cli. 7(i0; Craig's Executor's case, 9 Eq. 706, ((/) Macfarlan^s claim, 17 Ch. D. 337. (r) § 159. («) Ante, p. 666, note (c). PROOF AND PAYMENT OF DEBTS. 717 position to distrain (<), nor have persons paying money into a «k. ^V-^Chap. 1. bank which stops immediately afterwards (m), or into the branch office of a bank in ignorance that the head office has ah-eady stopped (x) ; nor are policy holders whose policies are actually payable {y) in any better position as regards priority than other creditors. This general rule, however, is subject to the right of the Crown to be paid in priority to other persons (z) ; and is also subject to the following statutory exceptions. Bv the Preferential Payments in Bankruptcy act, 1888 (a), Preferential which appUes only to windings up commenced after the nankruptcy 31st December, 1888, priority is' given to, ^'=*> i^^^- (a) All jiarocliial or other local rates due from the company at the com- mencement of the winding up, and having become due and payable within twelve luonths next before that time (ft), and all assessed taxes, land tux, property or income tax assessed on the company up to the fifth day of A]iril next before the commencement of the winding up, and not exceeding in the whole one year's assessment ; (h) All \vaf,'es or salary of any clerk or servant in respect of services rendered to the company during four months (e) before the commencement of the winding up, not exceeding fifty pounds (d) ; and (f) All wages of any labourer or workman not exceeding twenty-five pounds, whether payable for time or for piece-W(jrk, in respect of services rendered to the company during two months before the commencement of Ikruptcy, Jud. not, 1875, 1). 719. \ian Steam Packet Co., \ I 6 Efi. 39(i. hUock'sciise,^ Ch.;(i!); {dor's case, 9 E(i. 706. yiane's claim, \1 Ch.D. (() TlwmaH V. Patent Lionite Co., 17 Ch. D. 250 ; Bruhjemder En- ifiwrnng Co., 12 Ch. D. 181 ; Coal Conmtrurs' Associaliun, 4 Ch. D. 625, and ante, p. 678 et seq. as to distress. (ii) Ex parte Waring, W. N. 1866, 399, (.(■) Ex parte Guillemin, 28 Ch. D. C34. (!/) .Vf7Mr',f claim, 5 Ch. 424. .\nd wlu've a company's contracts are reduced under a scheme in aaonlanc • vith § 22 of the Life .Usurance upanies act, 1870, see 'rrc(i( Brituiv ^,j.,tual Life Ass. Soc, iOCli. I). 351. (:) Ihnlqi Ji- Co., 9 Ch. D. 469 ; Oriental Bunk Corporation, E.t paiie Tlie Cmni, 2b Ch. D. 643 ; and '!«( London Commercial Bank, 38 Ch. D. 364. A surety to the Crown who has paid his principal's debt, is entitled to the Crown's priority, Manistij v. Churchill, 39 Ch. D. 174. (a) 51 & 52 Vict. c. 62. This act repealed the Companies act, 1883, by which servants, clerks, and others were given a priority for salary and wages, except as to Ireland, to which country this act does not apply (§ 4). (h) As to rates before this act, see ante, p. 681. (c) I.e., four months next before, see Ex parte Fox, 17 Q. B. D. 4. ((?) As to the old law, see Chap- man's case, 1 E(p 346 ; and As.iocia- tion of Land Financiers, 16 Ch. D. 373. 718 WINDING UP BT THE COURT. Bk. IV. Chap. 1. tlie winding;; up : Provided that where any labourer in husbanilrv lias "^''*'' "' entered into a contract for the payment of a portion of his wages in a himp sum at the end of a year in hirinj;, lie shall have priority in n'spect ol the whole of such sum, or a part thereof as the Court may decide to be due under the contract proportionate to the time of service up to the date cf the commencement of the winding up. Stannaries Act, 1887. The foregoing debts rank equally between themselves ami are payable in full, unless the assets of the company are in- sufficient to meet them, in which case they must abate in ecjual proportions between themselves (e). Moreover, subject to the retention of such sums as may be necessary for the costs ,,t administration or otherwise, the foregoing debts are pavaUe at once, so far as the assets of the company are sufficient to meet them (/). In the event of a distress on the company's goods within three months next before the date of the winding-up order, the above-mentioned debts are a first charge on the goods distrained on, or the proceeds of sale thereof (7) ; but the person distraining has the same right of priority in resiittt of any money paid under any such charge, as the person to whom such payment is made (/i). Again by the Stannaries act, 1887 (Oj (which is not affected by the last mentioned act (/.•)), miners are given a first charge for three months' wages upon the mining oticots, ami the money and other assets of the ccjmpany in connection with the mine, having priority, subject to the provisions of the tenth section of the act, over all claims by the lessors of tlie mint or by mortgagees or judgment execution or other creditors (/; ; and on tlie company being wound up these wages are to be \mi by the liquidator forthwith in priority to all other costs, except tlie costs properly incurred of making the winding-up order, and, subject to the tenth section of the act, to all claims hv any person whatsoever ; and the court has power to clnufie the whole or any part of the assets of the company with a m\w (r) 51 & 52 Vict. c. 62, ^ 2. (/) Tb., § 3. (U) lb., § 4. (h) As to distresses after the com- mencement of the winding up, see ante, p. 678 et xeq. (r) 50 & 51 Vict. c. 43, § 14. (/,) 51 & 52 Vict. c. 62, § 2 (:'). (/) See § 4 ; for other advantaiv.- 1 conferred on miner.'; for tliuir \vii;'t> before the company is being woun. up, see §§ 5-8. PROOF AND PAYlklENT OF DEBTS. 719 • in husban>\ry Las his wages in a luuip ity in respect of ilie lay decide to be due :e up to the date of sufficient to pay these wages with interest at 5 per cent, per ^'k. IV. Chap. l. in favour of any person willing to advance the — sn themselves and e company are in- lUst abate in ec^ual )ver, subject to the ry for the costs ..f debts are payable my are sufficient to pany's goods within e winding-up order, [large on the goods ,hereof (.'/) ; hut the f priority in resiieit ge, as the person to which is not affected [s are given a first \ mining effects, aud Ly in connection with •ovisions of the tenth . lessors of the mine or other creditors \i/. L> wages are to be paid ill other costs, eKep; lie windin[;5-up "•''^''''' act, to all claims by has power to chavfl. ^ company with a muh . 51 Vict. c. 43, § H. t 62 Vict. c. 62, §2 (A k 4 • for other advanta;:>^ I tu miners for their «>■ Vompanyi9heh>g«». 5-8. annum requisite amount or any part thereof (?«). By section 10, the right confeiTed upon clerks and servants by the Companies act 1883, to be paid in the winding up of a company in priority to other creditors pari j^^^^^'' with labourers and workmen out of such assets only as are distributable by tiie Hquidator is preserved, except that such priority is limited to three months' wages, and does not extend to the principal agent or manager, purser or secretary (n). Bv the 10th section of the Judicature act, 1875, it is enacted Judicature act, 1875, § 10 (inter alia) that — "In the winding up of any company under the Companies acts, 18C2 and 1867 (o), whose assets may prove insufHcient for the payment of its deUs and liabilities ar.d the costs of winding up (^j), the same rules shall prevail and be observed as to the respective rights of secured and luisecured creditors, and as to debts and liabilities provable, r.-id as to the valuation i,i annuities and future and contingent liabilities respectively as may be in force for the time being under the law of bankruptcy " (7). This enactment has given rise to much discussion and to some conflict of judicial opinion, but it appears now to be settled that the bankruptcy rules which it has introduced into the winding up of insolvent companies, are confined to those relating to (1) the respective rights of secured and unsecured creditors, (2) to the debts and liabilities provable, and (3) to the valuation of annuities and future and contingent liabi- lities (r). The section does not aflect priorities (s), nor the funds out of which debts are to be paid. The bank- niiitey rules which under certain circumstances deprive execu- tion creditors of the fruits of their executions (t), allow the (in) See § 9. (.1) 40 & 47 Vict. c. 28, § 4. (0) The enactment does not apply tuany winding up commenced before itc;ane into operation, Jo^iqih Suche c'- Co., 1 Ch. D. 48. (p) This must be assumed to be till- case until tlie contrary is proved, Et park Thajs, 25 Ch. D. 587. (1/) Notice the words are '•' as may le iu furce lor the time being," Mersey Steel and Iron Co. v. Nay- lor, Bmzon d- Co., !) App. Ca. 434. ()■) As to what future and contin- gent liabilities may be valued, see Hanhj v. Fotlienjill, 13 App. Cfu 351. (s) See infra, and p. (J85, note (h). (0 lVit}urn.-!ea Brickworks, IG Ch. D. 340 ; liiclumls tfc Co., 11 Cli. D. 676 ; Railway Steel and Plant Co., 8 Ch. D. 183. Pilntinij and Nu- 720 WINDING UP BT THE COURT. Bk. IV. Chap. 1. trustee in bankruptcy to disclaim oneruus property ((/), and : the doctrines relating to reputed ownership {x), and fraudulent preferences (y) (except so far as introduced bj' the Companies act, 1862, § 164), are not introduced into the winding up of companies. Effect on secured With regard to the respective rights of secured and un- creditors. secured creditors (z), it must be remembered that previously to the Judicature act, 1875, by the rules in Chancery a secured creditor was allowed to prove in the winding up of an in- solvent company, for the full amount of his debt and to realize his security afterwards (a). The abolition of this rule was cne of the chief objects of the section, and by it the rights o' .. ed and unsecured creditors in the winding up of in- Sr- T mpanies, are in this respect made the same as tlieii rights in bankruptcy (6). But the rule in bankruptcy wliicli pieve-.sts a idi^^- secured creditor, who retains his security, from preseiitnig a petition in bankruptcy, does not prevent a secured creditor from presenting a petition for a winding-up order (e). AVith respect to the bankruptcy rules relating to " debts and liabilities provable," it has been decided that the rules intended to be introduced by this clause, are the rules which determine what debts or liabilities may be proved in bankruptcy and these rules only (d). Thus it has been held that the rule in As to debts provable. Clerical Registering Co., 8 Ch. D. 535, is overruled, ante, p. ()78. (?() IVcsthonrne Grove Drapery Co., 5 Ch. D. 248. (x) Gorringe v. Irwell Rubber Works, 34 Cli. D. 128 ; Crumlin Viaduct Works Co., 11 Ch. D. 755. (y) See Withernsea Brickworks, 16 Ch. D. 340 ; Winehouse v. Wine- honse, 20 Ch. D. 545. (2) The class of secured creditors must be determined by the creditor's position at the commencement of the winding up, and by the defini- tion of "secured creditors," con- tained in the Bankruptcy act. See § 168 of the Bankruptcy act, 1883, Tkomaa v. Patent Lionite Co., 17 Ch. D. 250 ; Coal Consumers' Assocktm. 4 Ch. D. 625. See also Printim and Numerical Co., 8 Cii. D. 535, and Buckley on the Companies Acts, 5th ed., p. 346. (a) Mason v. Bogg, 2 My. k Cr. 443 ; Kellork's case, 3 Ch. 769. (6) Winehouse v. Wivehnuse, 20 Ch. D. 545 ; Williams v. HopUii'. 18 Ch. D. 370 ; Withernsea llrvi- works, 16 Ch. D. 337; Kit Hill Tunnel, ib. 690 ; Lee v. Nuttall, 12 Ch. U. 61 ; Coal Consuwers' Asmn- tion, 4 Ch. D. 625 ; Joseph Suck i Co., 1 Ch. D. 48. (c) Moor v. Anglo-Italian BanL 10 Ch. D. 681. (d) West of England Dank, Ex PROOF AND PAYMENT OF DEBTS. 721 property {v), and [x), and fvaudultut by the Companies the wiutling up of f secured and un- ■ed that previously [Jhancerv a secured ding up of an in- ' his debt and to lolition of this rule and by it the rights e winding up of in- e the same as tlieii 1 bankruptcy which IS his security, from ot prevent a secured inding-up order (c). iating to " debts and at the rules intended .les which determine in bankruptcy and d that the rule in I Consumers Associatm. 25. See also rrintim ical Co., 8 Ch. D. r.35, on the Companies Acts, 46. V. Bogg, 2 My. & Cr. ;'s case, 3 Ch. 769. ouse V. JVin>-hom', 20 , miliams V. Ihptm IvO ; IVitbernsea Brid- \x. D. 337; Kit Wi« )90 ; Lee v. Nnttall, 12 1oal Consuwen' Assocm- I. 625 ; Joseph t>nck i 48. Anglo-Italian Bani:, 1. of England Bank, Ex hiinkruptcy which allows any liability contingent at the date ot'^^- IV. Chai., i. iidjudication to be proved if it ripens into a debt during the — bankruptcy, is introduced mutatis mutandis into the winding up of insolvent companies (e) ; and that the bankruptcy rules as to interest (/), and as to set-off between the company and non- contributories, are also introduced ( Demands against the promoters (u directors, or other persons, but not against the company itself, cannot be proved against it either as a debt (n) or a claim (hl Oh the other hand, debts of the company can be proved nf;aiiist it although some of the shareholders may be entitled to nn indeiruity in respect of them from other shareholders ( ;j). What is, and what is not, a debt of the company, nnist hv determined upon the principles discussed in an earlier portion of the present treatise (q) ; and in this place it is propusiil merely to notice some general points of practical iniportaiHH, and continually arising in the winding up of companies. A debt ma}' be proved in the winding up, although an action has been previously brought against the company to recover it, and such action has been dismissed for want of prosecution (; i. Equitable debts. Equitable debts are clearly provable (s) ; but a debt con- tracted under seal by a trustee for the company is not provable against the company (t) ; nor are claims founded on agree- ments fraudulently concealed from the members, even tlioii^'li payment is stipulated for in the articles of association ((*), Nor can moneys subject to a fraudulent trust be treated as tni>t moneys and be paid as such (x). Debts contracted Nor are claims, founded on contracts which are nltra vinx ■ultra vires. (vi) Arthur Average Assoc, 3 CIi. D. 522 ; Ex parte Hargrove, 10 Cli. 542. (n) London Marine Ins. Assoc, 8 Eq. 176 ; Ex parte Lloyd, 1 Sim. N. S. 248, as explained in 2 I)e G. M. & tt. 640. (o) See Wryghte's case, 2 De G. M. & G. 636, and Prichard's casr, 4 De G. & S. 328, and 5 De G. M. & G. 484. See, too. Ex parte Briygs, 8W. R. 110. {p) Shaw's claim, 10 Ch. 177. (q) See book ii. (r) On-ell Colliery and Fin Eiii Co., 12 Ch. D. 681. (s) See Tm-ell v. IMton, 4 H. L C. 1091. (<) Pickering's claim, 6 Cli. fiii. (w) Ex parte Williams, 2 Eq. iV: where the articles of aesociatidi were vitiated liy a concealed aiw- meiit. kJee, also, Hereford and Sottll I f rales Waggon Co., 2 Cli. D, (iSl. (;c) Great Berlin Steavibont Co., -i' | Ch. D. 616. PROOF AND PAYMENT OK DKDTS. 728 those claims (inly ly which nre or will ich is bting wonml » up a company till' pany against wliidi it the promoters or the company itself, it (n) or a claim!/". in be proved aj^aiiist y be entitled to an iareholderf5 ( p), i company, must K' in an earlier portion place it is proposed )ractical importanif, of companies. p, although an action jmpany to recover it, ,nt of prosecution (n. s) ; but a debt con- iipany is not provable s founded on agree- lembers, even tliongli f association (it). Nor be treated as tru^t wliich are tdtra virrs. book ii. n Colliery and Firt Brii . 1). 681. Tcn-ell V. Iluttm, 4 H. L. ering's claim, 6 Cli. r)i!5. oarte IVilliams, 2 E.i. iV'- i le articles of associalimi Ited l)y a concealed aiw- \e.alsQ, Hereford and Sd'\ ggon Co., 2 Ch. D. fi21. it Berlin Steaviboitl Co.,-y'\ 16. nrovable against the company (?/). Moreover, solicitors who, J"'- IV, CliaiJ. l. ' ' ... Sect. 0. on beliulf of the company conduct legal proceedings arising — out of transactions which nre ultra vires, and are known bj' them to be so, are not entitled to be paid for their services b}' the company (s). Nor can brokers claim in respect of pur- chases of shares in the conii^any being wound up unless tlie company has power to buy its own shares {). In connection with this subject, it should be remembered that creditors nmy be able to dispute claims which would be binding on the company by the law of estoppel (<■)• A debt of the company bought up for less than its full JJ,f i^J't,"f J* "'' amount can be proved for the full amount even by a mem- their amount. ber ((/) ; but a director who knows that a debt has been im- properly contracted on behalf of the company, cannot buy it up cheap and make a profit, by proving for its full amount against tlie company (e). Debts barred by the Statutes of Limitations at the date of i^tatute« of l.in.i- tiitions. the winding-up order cannot be proved (/). But debts not then barred are provable, although no claim may be made in respect of them until after the expiration of the time which but for the winduig-up order would have barred them (//). A creditor, liowever, who neglects to carry in his claim for an Laches in cai i> unreasonable time will not be allowed to disturb dividends '"° '" " """■ already paid (h) ; and he will entirely lose his right to prove if all the assets have been distributed and the affairs of the com- pany practically wound up before he has brought in his claim. {ij) Ante, ]\IG2. [i] Howard and Dollman's case, 1 Hem, & M. 433. (a) Zidueta's claim, 5 Ch. 444, re- VHsing S. C, 9 Ec^. 270. See ante, p. 206. {h) Ante, p. 2.37 et seq., Cork and ymjhal Rail. Co., 4 Ch. 748. (f) Mowatt V. Cattle Steel and Iron tt'orks Co., \U Ch. D. 58. [d) Hamhtr Iron JForka Co., 8 Ei[. Ii2, (e) Ex parte Larking, 4 Ch. D. 566. (/) Mitchell's claim, 6 Ch. 822. (;/) Joint Stock DLicount Co.'s claim, 1 Cli. 646 ; Wrtjyhte's case, 5 De G. & Sm. 244 ; and sue Ex parte Higgins, 2 Jur. N. S. 178 ; ]Varwick and IForcester Rail. Co., 27 L. J. Ch. 735 ; Gloucester, Aberystwith, d:c., Hail. Co., 2 Giff. 47. (/i) See the last note, and Kit Hill Tunnel, 16 Ch. D. 590. 3 A 2 •r — 'wp" 724 WINDINO UP nv TIIR COURT. Kx iJiirto Forest. Uk. IV. Cbai). 1. Thus where a solicitor's bill Ims been taxed, and ordered to bt' paid out of the first funds of the company which sliouM come to the hands of tht; oflicial liquidator, and the s(4icitiii took no steps to obtain payment for more than six years, and in the meantime the affairs of the company were settled in compromise, it was held that the solicitor was not entitled to have a call nmde for his payment (?). Again, in Kr pari,' Forest (li), a debt was due from a company ordered to be wound up. No claim was made by the creditor until more tlian nine yeai's had elapsed since the debt became due and tlu' winding-up order was made ; nor until all the other debts • i the company had been paid and the surplus assets had bien distributed amongst the shareholders. The debt was held to bn barred by the laches of the creditor, and by the Statute of Limitations. As regards the statute, the decision cannot non be relied upon ; but as regards the effect of laches, coupk-d with an alteration in the position of others which would rendei a proof unjust to them, the case may, it is conceived, be still considered sound (l). A claim by a solicitor for costs is subject to taxation (m) ; but if at the date of the winding up the company could not bare taxed the bill, it is not taxable at the instance of the liqui- dators (n) ; but if it is then taxable, the liquidator can bave it taxed even after the lapse of twelve months from the delivery of the bill(o). The bill, however, may be allowed as a debt subject to taxation (p). By the rules and orders issued under the act of 1862, interest on debts allowed is to be computed, as to such of tbeni as carry interest, after the rate they respectively carry. x\ccord- ing to the rule, creditors whose debts do not carry interest are entitled to interest, after the rate of 4/. per centum per annum, from the date of the winding-up order ; but only out of any Solicitor'B bills. Interest. (i) Ex parte A'Bcckett, 2 Jur. N. S. 684. Compare Gloucester, Aber- ysiwith, dc, Bail. Co., 2 Gift". 47. {k) 2 Gilt'. 42. (l) See Joint Stock Discount Co.'s claim, 7 Ch. 646, where no injustice was done to any one in admitting the claim. (m) Ex parte Quilter, 4 De G. & ^ 183. (71 ) Ex parte Quilter, 4 De G, & ^• 183. (o) Ex parte Evans, 11 Eq. 151. (p) Tcn-ell V, Hutton, 4 II. L.C 1091. niOOF AND PAYMENT OF PEBTR. 7'25 to taxation (m) ; but any could not have stance of the Hqni- uidator can luivf it s from the dehverv allowed as a delit the act of 1862, ll,asto such of them lively carry. Accord- )t carry interest are centum per annum, )ut only out of any Vrtc Quilter, i Do G. & ^. [rfe Quilter, 4 De G. & ^■ Iwe AVdiiS, 11 Eq. 151. \l V. Hutton, 4 H. L '' iisseis wliich may remain after satisfying tlie costs of the winding' '"«• ly- Clmii. l. up, I'le (cbts and claims established, and tlie interest of such - -^—^ debts and claims as by law carry interest (7). lint the validity of this part of the rule is very questionable (r) ; aiui notwith- standing the rule, interest on a debt not bearing interest ciinnot be allowed at all (a), unless the debt is one in respect of wliich interest in the shape of damages would be given by a jiny nnder 8 iV 4 Wm. 4, c. 42 (t). Even if a debt bears interest, the interest stops at the commencement of the winding np if the company is insolvent («). And if a ered'tor, wliose debt carries interest at a higher rate than 4 pel cent., obtains a judpnent for liis principal and interest, he will only be allowed til prove for his judgment debt and interest on it at the rate of 4 per cent., for the original debt will have merged in the jiulg- iiieut(j). If the debt is payable by two companies, the rreditor can prove against each for the principal and interest up to the date of its winding up, and can receive dividends from each until each has paid twenty shillings in the pound on the debt proved against it, or until both companies together have paid the whole principal and interest up to the date of iniyment (2/) . A dividend paid in respect of principal and interest is first to be attributed to the interest and then to the principal (s). iq) Rule 26. The act is silent on tlie subject of interest. See 3 & 4 Wm. 4,0. 42, §§ 28, 29 ; 1 & 2 Vict, c. 110, §§ 17, 18 ; Dornford v. hrnford, 12 Ves. 129 ; Mildwaii v. Mflhnm, 3 Dri'w. 91. (r) In truth it seems ultra vires, see the next note. («) Ex parte Gree^nvood, 9 Jur. N. S. 99". East Holy ford Mining Co., Ir. Rep. 9 Eq. 327 ; East of England Ikiiking Co., 4 Ch. 14 ; and Hiic- jmishire Banking Co., 4 Eq. 250. (() .S'((i(e Fire Insurance Co., Tinn Assurance Co.'s case, 2 Hem. i M. "22. In this case the com- piiny was being wormd up under the act of 1848, but the reasoning applies to companies which are l*ing wound up under the act of 18G2. Compare l^argood's claim, 1.5 Eq. 43, where a surety, Avlio paiil olt' a debt bearing; interest at 4 per cent., was allowed to prove for tlie principal and interest at 5 per cent. («) See Jud. act, 1875, § 10, ante, p. 719 et seq. Ji'urrant Finance Co., 4 Ch. 643 ; Eblnv Vale Co.'s case, 5 Ch. 112 ; Ex jiartc Colborne and Strav- bridge, 11 Eq. 478 ; Hughes' claim, 1 3 Eq. 623, the case of a surety. (x) Ex parte Oriental Financial Corforation, 4 Ch. D. 33 ; E.c parte Hughes, ib. 34 n. ; E.i- parte Fewings, 25 Ch. D. 338. (?/) JVarrant Finance Co., 5 Cli. 86. {z) Warrant Finance Co, (No. 2), 10 Eq. 11. .■r^; 726 l!k. IV. Clmp. I, I'dMition of Kccurcd ci«- ilitorA. Vendor's lien for unpaid pui'clmso money. WINDING VV HY TIIK COUUT. Secured creditors cininot prove for their debts witliont Rivinj; up their securities on tlu; proju'riv of tlu; conipniiy ((/). Hm they need not give up other Hecurities (/*). Althoufjh interest aecruinf^ after the eonmuMiceinent of tlu windiuff up is not provahh' nf^aiust an insolvent conipnnvir) yet a creditor who lioMs ii security for principal nnd iiitcrc; can only be redeenusd on being i)aid principal and interest in full up to the time of payment and liis costs (d), A croilitai who holds two securities of the same company for one ilvU can only ])rove for that debt ; he cannot prove in respect n| each securitv (<•)• I'he ludder of a debenture cuntniiiiiiit n covenant for the repayment of the principal sum on a ccrtiiin day and charging property of the company is entitled in enforce his security — i.e., to be paid out of the assets ciim;;!!!, although the day for payment has not arrived and no intpiv^t is in arrear {/). Whetlier a mortgage is binding on the company, inul tin- extent of the assets covered by it, depends not only on its tiims but also on the nature of the company and on the powers of, directors (^). A security of a limited company not registered :i> required by § 43 of the Companies act, 1862, is nevert!Kle>s provable as against other creditors, even although given in tin directors or solicitors of the company (li). A bank, with wliidi a company had deposited its deeds as a security for bills iindir discount, was held entitled to apply the proceeds of the sale of its security, not only to meet bills under discount, but idl other moneys due to it from the company (i). The ordinary lien which a vendor of land has for his uupaiil purchase -money (k), the right of an unpaid vendor of goods ti (a) Jud. Act, 1875, § 10. See (/) Hodson v. Tea Conpimi, H iinte, p. 719 et seq. Ch. ]). 859. As to ilebentiii'- (b) See Partii. p.,714 ctmj., ^vhe^e charging the undertaking, see nuK the rules in bankruptcy are referred p. 197. to. (g) See mite, pp. 18() '•(■"•i]. (c) Ante, pp. 724, 725. (h) JVright v. Horton, 12 Ap',., {d) Warrant Finance Co. (No. 2), Ca. 371. See ante, p. 203 n. (u), 10 E([. 11. {i) Ex parte National Hank, U (e) In Metropolitan and Provincial Eq. 507. See, also, Agra /"'f ' Bank, W. N, 1869, 148, the creditor claim, 8 Ch. 41. had a bill and a bond ; and see (ft) See, as to the lien of a mvU Kx parte European Bank, 7 Ch. 99. who sells for casli and slians ""' PltOOK AND l'AYME>T W DEBTS. 727 ebts without ^iviiiK compniiy {a). ]\n\ jniencoiiitiit of tin olvont foiiipiiiiv (I) lU'ipal and iiitoc ipiil nnd iiitoiost in iHts ('/). A cvcMlitoi- iipaiiy for oiii' ililt prove in respect nt ■ntuiT contiii\iiiig n il Hiini on II ctrtiiiii )tiny is cntitlnl t.. ' the assfts clmrgcil, red and no iiiteiv'>t le company, and tln' not only on its tiniiv on the powers of: any not ri't^'istered ;k 862, is nevert!u■le^s Ithough given t(i tk A bank, witli wliidi Burity for bills iiiukr )roceeds of the sale er discount, but id! i). id has for his uupaul vendor of goods U on V. Tea Coiopam, U As to (lebentuif 10 undtirtaking, see ml', )9 life, pp. 18(5 ^f.'"'/' ht V. Horion, 12 Ai;'- ee ante, p. 203 n. («). arte National Bad, H Sec, alBO, Agra /)"«''' . 41. 8 to the lien of a voiuIt or cash and slian'S aii'l stoi) them »» trnimUt. in the event of tlie insolvency of the !"<• 'V- ^'"»P- '• . , . Hect, 1'. l,ii\t'i', and maritime hens (/) arc all available against com* panics which are being wound np(»;). Till' rule in Kx parte, WaritKi (n), by which, if both the Rule in Kx ihrtueraud acceptor of a bill of exchangt^ become bankrupt, the '""^ " '"'"'^' hiddcr of tiie bill is entitled to have any securities held by the iicd'ptor for the bill applied in taking it up, ai-plies where the drawer and acceptor are companies in liquidation, at all events it' they are insolvent ; but, it has been said, no* otherwise (")• The rule, however, has no application unles? there is u double forced liquidation (;>). Whilst the drawer nnd acceptor are solvent tliey can deal with the securities as they please, and relense them altogether (7) ; nnd the transferee of the bill iicqiiires no right to have securities pledged to meet it applied in taking it up, unless that right has been conferred upon him bv some special contract with liimself or its equivalent (;) ; luid where the security consists of a guarantee, the bill- liolder ncipiires no rights as against the guarantor or his istftto, even although all parties are insolvent («). A nerson who holds shares as a trustee for a company being Trustees foi thr wound up is entitled to prove against it, not only for calls alrendy made on him, but also in respect of his liability to the eiiiiipaiiy becomes wliolly abor- tive, llreulwond Brick ami Coal Co., \ C'h. 1). 502. The vendor not Win;; a creditor at law until a con- vevnncc lias been executed, never wxs eiititlcd in equity to prove for the wliiili'. jmrcliase-money, and to retain his security. See Home v. ToK/i;/, 3 Y. & C. Ex. 199, and 4 ib. ■m. ' ')] Australian Steam Nav. Co., 20 % 325 ; Rin Grande do Sul Steam .4i> Co., 5 Ch. D. 282. [m) See, as to the lien of a vendor "t a patent, Gore and Durant's case, ■2 hi. 34!). (d) 19 Vcsey, 345. For a fuller Mcount of this rule, see Partn. 1'. '12, and Eddis on Ex parte 'f'orijii/, (0) Hickie d: Go's case, 4 Eq. 226, md qnmre, .see Powles v. Hargreaves, 3 I)c O. M. & G. 430 ; Ex parte Alliance Hank, 4 Ch. 423 ; Bank of Ireland v. Perry, L. R. 7 Ex. 14. (j)) The rule does not apply when one of the parties, though insolvent, remains master of his own property, Ex parte General South American Co., 10 Ch. 635. (5) Ex parte Lambton, 10 Ch. 405. (r) Compare Inman v. Glare, Johns. 7G9, and Agra and Master- nmn'D Bank, 2 Ch. 391, wliere he had acquired the right, with Ex parte Steplien.i, 3 Ch. 753, and Ban- ner v. Johnston, L. R. 5 H. L. 157, where he had not. (s) Ex parte Stephens, 3 Ch. 753. T"" wammmm 728 WrNDINC} UP BY THK COURT. i.k. IV. Chap.]. Sect. !). Iiu'oiDnity. Winding up no breach of contract. Mersey Steel and Iron Com- pany V. Naylor & ("ompany. future calls (t) ; and his proof is not to be rejecitod simplv because he may be indebted to the company on aiiutlui' account (?(). So other claims against the company for indemnity by it 'ji'i be proved against it, e.liveries of steel, not the winding-up of the company. So an order to wind up a company under supervision was hid to afl'ord no defence to an action by the company for the hiviieh of ill! agreement whicdi the liquidators had performed iiiid were ready to continue to perform {b). So where a bank h;id agreed to accept bills against bills of lading, and the bank ua ordered to be wound up, and the liquidators were ready tit cimy out the agreement, a claim for damages for its breach was disallowed (c) ; and sureties for the bank were held not liiscliai'ged (d). On the other hand, as the winding up of a comp^.uy rcinders it impossible to jilace shares in it, a person who has agreed with the company to i)lace them is entitled to damages for the loss which tlie winding up has caused him (t;). Similar principles were applied by V.-C. Wood to the dis- Di.siui.ss:il ot missal of servants in Ex intrtc Hardrnn ( f). There a clerk to t" ^ .' V.' / ],^x parte a (' impany was engaged on the terms that he should not be Harding. dismissed without three months' notice. The company was rdered to be wound up ; but its business '.vas continued by tlie liquidator for a time, and the clerk was not dismissed, liiit he continued in his employment. He was then (hsehavged l^y the liquidator without notice. 'I'he Court ('') British U'arifion Co v. Lea d- <',.'' Q. IJ. D. 149, the liquidators 1*1 assigntd the contract, and the ■i-igiices carried it out. (c) Exj)arte Tmidcur, 5 Eq. 160. id) Barbcr(S:Co.,9E([. 726. (<) InMald v. IFestcrn Neilgherry Coffee Co., 17 C. B. N. S. 733. (/) 3 Eq. 341. Compare the next three notes ; and as to the elfect of a transfer of the company's business, see Stirling v. Maitland, 6 B. & Sm. 840. 780 WIMDINQ UP BY THK COURT. Dlscliai'tje ol' -iMViints by wiiuling-iip onlor. I'.k. ly. Chap. 1. decided that the winding-up order did not operate ns a dis- — ' charge of the clerk, and that he was entitled to his salinyupto the time of his dismissal and the damages in lieu of notice (*/). But on grounds of convenience it has been lield in utliir cases that a compulsory winding-up order operates as a dis- charge of the company's servants, and entitles them to damages as for wrongful dismissal on that day, evv i if tliev are not in fact dismissed but assist the liquidator in wiiulinc up the company. The general doctrine that a compulsory winding-up order operated as a, discharge of the company's servants was laid down by Lord Romilly in Chapman's case {h) ; and in Shimif'f case (?) the same judge held that a resolution to wind up voluntarily had the same effect on a manager v.lio was appointed liquidator. In Mac DowalVs case (k) the Ihniidiitov issued a circular (in effect) treating the winding-up order us a discharge of tlie company's clerks, but saying that he slioulil require the services of some of them, and should reduce the staff as little as possible. A clerk who was entitled by his agreement with the company to three months' notice contiiuiid to be employed by the liquidator for more than three montlis, and afterwards received notice to leave at the end of the tluii current month {I), which he did. He was paid for his services tip to that time. He claimed three months' salary in \m of notice, after giving credit for what he received after the uotiit to leave ; but it was held that he was not entitled to this. He was treated as having been discharged by the winding-up order, and on this footing he had sustained no damage, li!iviii2 been paid more than three months' wages (/«). The last case on this subject is Itcid v. Explosires Co. (n\ where it was held by the Court of Vppeal that a windingii (7) Observe that if the order had disinissed him he would have been entitled to damages, but they would liave been reduced by the sub- sequent payments to him. See I'fiii V. Krplosives Co., infra. (/i) 1 Eq. 346. See, also, Forster ,f; Co., 19 L. K. Ir. 241. (i) 14 Eq, 417. (k) .32 CJh. D. 366. {I) The notice was given on it' 19th August. (m) See the next case. (w) 19 Q. B. D. 204. A recoiiv: and manager had been appointei and this was held to have dischir,'^ j the plaintiff. Sed qiutre. rnOOF AND PAYMENT OF DEBTS. 7:U ; operate ;is a dis- l to his siilivvy up to n lieu of notice ((/), been held in otlur operfttes as ii dis- entitles them ti) t day, e\v 'i if they iquiilatov in winding ly winding-up order ■'s servants was laid h) ; and in Shimf^ solution to wind up 1 manager v.lio was nse (k) the li.niidiitor ,vin(Ung-up order as a lying that he sliould ,nd should reduce tlie ) was entitled by his lUlis' notice oontiiuuil L than three months, the end of the then paid for his services iths' salary in lieu of eived after the notia entitled to this. He by the winding-up ed no damage, Imviiij {m). V. Explosim Co. {n\ eal that a winding-u,' Uh. D. 366. notice was iJjivcn on i:' ust. the next case. Q. B. D. 204. A receive ager had ho.m aprointei vaa held to have disclmj'J] tiff. Sed qiuere. order operated as a wrongful dismissal of the idaintiflf, but that '^k. IV. c'lmp. i. lie suffered no damage, as he had been employed and paid by the hquidator for the period of the notice to which he was entitled. It must therefore be treated as practically settled that the iirinciple acted (m in ivr jidvte llordiiiff is not applicable to clerks and servants unless the company's business is continued without break as it was there. \ servant engaged for an unexpired term and discharged Dam.'iKcs in . . -11 n ^ these ClISCs. before its expiration, is entitled to prove for the present value rtf all the future payments which would accrue to him if he lontiinied to serve the whole time, and to add to that the pecuniary value of any other benefits to which he would have lieen entitled under his contract ; and then to deduct a proper >nm for the chance of death and had health, and for his hbevtv to obtain fresh employment (o) ; or if he has obtained fresh employment what he has been paid for it{p). If the lontract mentions the sum to be paid in case of dismissal, no deduction from it will be made ((j'). On the other hand, "'^hing is provable in respect of loss of commission on business which might or might not have been transacted (;•). As to the priority of wages, see ante, p. 717. Where the company is lessee for an unexpired term of years VnUn-c rci.t. the lessor is entitled to have a claim entered for the full amount of the rent which will become due under the lease ; :iiid he is further entitled to prevent the company from being diss(dved without notice to him. l')Ut where the lease has i)een assigned, the lessor is not entitled to receive more from the company than it may ultimately become liable to pay [ under the covenants contained in the lease (.s). And the lessor is not entitled to a dividend on his claim until something be- nnies payable to him ; nor is he entitled as against the other Ureditors to stay a dividend, nor to have any sum impounded (o) Yelknd'a ra.w, 4 Eq. inO ; Kjc |jwr(e ijhrk, 7 K(|. 550. '))) Ikid V. Krplosircii Co., 1!) Q. |li. 1). 264 ; Shirref's case, 14 Eq. 141;, :i) Ex parte Login), '.» Eq. 149; but see the la.st note. (r) l<}x imrte Mndure, 5 Cli. 737. (.•)) Setf Haytor Granite Co., 1 CJli. 77, reversing 1 Eq. 11, and see the next two notes. 732 WINDING UP BY THE COURT. ^^ll)si.stin;^ liolicics II lid Miinuitic's. Uk. ly. Cliai). 1. to jneet future possible demands (t). He must trust tn 1,1. power of distress and entry, and t to reduce its capital, it must make provision for nu't'tiii" tli. lessor's future demands (u) ; and the shareholders ore not entitled to divide the assets amongst themselves witlimit making similar provision (.?). The same rule applies to tlu voluntary winding up of a solvent company (?/). Annuitants, and policy-holders whose policies arc nut vet due, are entitled to prove for the values of their respective annuities and policies (z) : and the amount to he proved for i> to he ascertained as at the date when the claim is made(rt): but if a claim contingent at the commencement of tlio wiiulini; up ripens into a debt during its continuance the whole may h proved for, whether the day fixed for sending in claims lias, or lias not, passed (6). IMoreover, it is not necessary in order to prove in respect of a policy to keep it up after tlie onm- mencement of the winding up (r) ; and as between poliev- holders, those whose policies have dropped are not entitled t. payment in priority to the others (d). The proper method of valuing subsisting policies gave lise to considerable difference of opinion ; the Court of Cliancin holding that the amount to be proved in respect of siicli a policy is the sum which would be required by a solvent offici to eflect a new policy of the same amount on the same condi- tions and at the same premium as the policy in respect ol IIow iinmiities and policies arc to lie valueil. (?) JFentbourne Grove Dmperij Co., n Ch. U. 248 ; Hormj's flnim, 5 Eq. 5(51 ; Ex parte Lord Elphinstone, 10 Eq. 412. As to the proof and dis- iliiirge of such clixims in bankruptcy, see Hardy v. Fothergill, 1 3 App. t'a. 351. (h) Telegraph Construction Co., 10 Eq. 384. (.(■) Oppenhexmer v. British and Foreign Exchange, dr., Hank, (i Ch. D. 744. (i/) Lord Elphinstonc v. Monkland Iron Co., 11 App. Ca. 332 ; Gooch v. l/ondon Hanking Assoc, 32 Ch. D. 41. (z) Hnnt'x case, 1 Hcin. &M. 'li: Teete's case, 4 N. R. 48, and sue iufn. (a) Craig's E.cecntors' otsc, it h.. 706. (b) Mac/arlane's claihi, 17 Ch. 1' 337 ; and Hill v. Bridges, ib. 34:'. an a(hninistr.ation action. Diviiknti: already paid are of course not ili- turbed. (c) Cook's policy, 9 ]':(i. 70.3, wher the days of grace had not tlie:^ expired. (d) Mclver'g claim, f) Cli. 4'2-l. PUOOF AND I'AYMKNT OK DEBTS. 733 which the proof is made (e) ; and this principle has the advau- '^k. IV. Chap. * * 11 . n • Scot. !). ta(»e of doing justice to all parties so far as circumstances admit. But the practical difficulty of applying the rule in- iliiceil I'Ord Cairns as arbitrator in the winding up of the Albeit Life Assurance Company, to adopt a different rule, and to hold that the sum to be proved for was the difference be- tween the present value of the sum insured and the present value of the premiums which the insured would have to pay in order to keep the policy on foot (/). The legislature has, in substance, adopted Lord Cairns' rule, for by 35 & 3G Vict. c. 41, it is enacted as follo\,.s : — "5 5. Where a life assurance company is being wound up by the Court, 35 k 36 Vict. 01 subject to tlic supervisioTi of the Court, or voluntarily, the value of every ^ 41. lili' annuity and life policy re([uiring to be valued in such winilinji uj) ■liall be estiniateil in manner provided by the first schedule to this Act ; Imt this section shall not apply to any conipajiy the winding up of which li;is coniintMiced before the pas.sing of this Act, unless the Court having fi^nizance of the winding up so order, which order that Court is hereby dupowcreil to make if it think expedient so to do, on the application of iiiiviierson intere.ste(l in the winding up of such company." FIRST SCHEDULE. Rule for vnluintj an aiinnifii. Auiiiniuity shall be valued according to the tables used by the company wliicli granted such annuity at the time of granting the same, and where !^iiili tables cannot Ije ascertained or adopted to the satisfaction of the (iJourt, tliciuuciirding to the table known as the (government Annuities E.\peri- t'lia- TiiMi', interest being reckoned at the rate of four per centum per I aiiiiinn. liulu for valuing a iiolicy. The value of the pcdicy is to be the ditference between the present value III the rcvorsion in the sum assured on the decease of the life, including ail) liDinis or addition thereto made before the commencement of the wiml- ini; up, and the present value of the future annual premiums. In calculating such present values, the rate of interest is to be assumed .'! Wing four per centum per annum, and the rate of mortality as that of j tht tables known as the Seventeen Oflices' Experience Tahles. {') Hohlich's case, 14 Eq. 72; M'l oi.sr, Kfrr's aitd Stubh's case, likdhij's MSf, Craig's Executors' (a«,au(l U'ilsmi'n case, 9 Eq. 70(). (/) See Lancaster's case, 14 Ecj. 72, note, and Lord Romilly'a obser- vations on it in Holdich's case, ib. .iv4 u 34 WINDING UP BY THE COURT. I'jk. IV. Chap. 1, The prcmiuia to be calculated ia to Le such piemium aa accordin" t.. Soot. 9. (^jn; g^jji yc^^Q of interest and rate of mortiilitj' is sutficient to provide for ih, risk incurred by the office in issuing the policy, exclusive of any aJditi i, thereto for office expenses and other cliarges. SECOND SCHEDULE. Where an as.surance company is being wound up l)y the Cmiit orsiibifeft to till! sujjervisioii of the Court, the official liijuidator in tlic case uf all persons appearing by the books of the company to be entitled tooriiut. rested in policies granted by such company, for life assurance, ciidowiiKnt, annuity, or otlier payment, is to ascertain the value of such pohcies, anJ give notice of audi value to such persons, and any person to wiioiu notice is so given shall be bound by the value so ascertained unless he i;ivc> notice of his intention to dispute such value in manner and within atiiiie to be prescribed by a rule or order of the (.'ouit. Debts of aiiial- Where one company has transferred its assets and liabilititv iiai"dcs!* *^^'" ^^ anotlier company, and both or either of such companies are afterwards wound up, questions of some perplexity arise with reference to the debts to which they are respectively liablf. In the first place it is necessary to ascertain whether the iimiil- gamation itself was intra vires and binding on both companies. or ultra vires and binding on neither (r/). Assuming the amal- gamation to have been intra vires, tlxen it will follow from the principles investigated in an earlier part of the treatise (//)- 1. Where the ^' i'hat a Creditor of the company which has sold its bu>i- lunalgamation is ^gf-g can prove against that companv unless he has in some tiUra vires. i o i . way released it, or unless his debt is barred by the Statute of j Limitations (?). 2. That such creditor can prove against the purclinsiii!.' j company, if, but only if, that company has become liable u him by reason of some agreement, express or tacit, between j it and him (A). (jr) See, on this subject, ante, pp. 183, 322. (h) Ante, jip. 2.")8 et scq. (i) Family Endowment Soc, 5 Ch. 118 ; Mancliester and London Life Ass., ftc, Assoc, 9 E([. C43, and b Ch. 640 ; Griffith's ca?e, 6 Ch. 374 ; IJational Provincial Life Ass. Soc, 9 E(j. 306 ; Hunt's case, I Hem. & M. 79. Compare Carr's case, Beav. 542, which turned on tliej terms of the policy and the con-' paiiy's deed of settlenunt. {k) Commercial Bank Gwpomtm; of India and East, 10 W, R. and W. N. 1868, 100; i'.f F') Gibson, 4 Ch. 6G2 ; National Pnm] cial Life Ass. Soc, 'J Eq. 306; IJ PROOF AND PAYMENT OF DEBTS. 735 Ilium as according [■■ ;ieut to provide for iln :lusive of any additi^ii l)y tlie Court or subjtr'. lator in tin; case uf ail ,0 be entitled to or iiitc- B assurance, endowmtiit, ue of snch policies, and y person to whom notice ;rtained unlt'ss lie ;;ivt> anner and witliiu a timu 1 assets and liabilities f sucli companies are pt-rplexity arise willi •e respectively liable. ,ain whether the amiil- \a on both companies, Assuming the amal- t will follow from tlie of the treatise (/()- lich has sold its bu>i- nless he has in some ] Irrecl by the Statute of I Linst the purcliasins has become liable t.> | less or tacit, between! Compare Can's c<.«, M I2, whicli tinned on tli< the policy and tk m-\ led of settloraiut. Lnercial /in"''- (^''n-o""'*'! N. 18«8, IW; t''/''"\ Ch. 662; iYafioii«n'«n"f ^... Soc..'jE.1.306;f.'| 3. That if there has been a complete novation of his con- Bk. IV. Ciiaii. 1. tract, the creditor has discliarged the selling company, and can only prove against the purchasing company (l). 4. That the selling company is entitled to be indemnified by the purchasing company against all the liabilities of the former agieed to be taken over and discharged by the latter (/«) ; but is not entitled to a lien as for unpaid i)urchase-money, nor to the benefit of secui'itics eti'ected by the purchasing company to cover the debts it had taken over (/?). Where, however, the amalgamation is ultra vires, and invalid, 2. Where ainal - I'll 1 1 • !/• 1 yamatiou is the company which has assumed to take upon itselt the ultra nn^. liabilities of the other, cannot be made to discharge those liabilities, either by the other company or by its creditors {(>) and the company which has assumed to transfer its debts, veniiiins liable to pay them, even though its creditors may have taken securities from the other company (jj). In order to replace both comi)anies in their former position, it would be necessary to restore to the transferring company all its assets, and to the company taking the liabilities of the other, all moneys paid in discharge of those liabilities. But it does not necessarily follow, from the mere fact that the companies have acted beyond their powers, that they are entitled to be restored to the position in which they would have been, had they never amalgamated ; and it was held that a company which had taken the assets and liabilities of another, was not entitled to rank as a creditor against that other, in respect of the excess of its liabilities which had been discharged, over its assets wliich had been taken {q). j«ir/< Blood, 9 Eij. 316 ; Tede's case, ami Eumney's case, 4 N. R. 48, V.-C. K. {I) Merchants and Tradesinoi'is .4ss. Hoc, 9 E(]. ()94 ; Times Life i4>s., ct'c, Co., 5 Ch. 381 ; Anchor ^tss. Co., 5 Ch. 632 ; Spencer's case, () Ch. 3(52 ; Flemhi(/s case, 6 Ch. 393, and see the last two notes. (m) British Provident and Anylo- Amtridim Assurance Cos., 4 N. 11. 4S, (") Western Life Ass. Soc, 11 Eij. 164. (0) See The Era Assurance Soc, jyHliams's ca-se, and Anchor's case, 2 J. & H. 400. (p) See The Saxo7i Assurance Society, Anchor's case, 2 J. & IT. 408. See, too, Hardin(je v. Webster, 1 Dr. & Sni. 101. ((/) See The Saxon Life Assur- ance Society, Era case, 2 J. & H. 408, and 1 De G. J. & Sni. 29. Com- pare IFood's claim, and Brou'n's claim, 9 \V. K. 366, and 10 ib. 662. 736 WINDING UP BY THE COUUT. IJk. IV, Cliaii Sect. [». Debts due to ni embers. A debt due from a company to one of its own membi'is m his character of member by way of dividends, profits, (lirectois fees (r), or otherwise, caimot be proved against tlie coiiipanv in competition with creditors wlio are not members ; but sucli a debt must be taken into account in adjusting the rights ot the members inter se (s). But debts duo to members not as such, but in respect ot matters in which they liave acted as strangers, may be prove! against tlie company in competition with other debts (0. A person who has taken shares in a company and lia> effectually repudiated them before the winding up has com menced, or who has been decided not to be a shareholder, may prove as a creditor for what he has paid to the company in respect of them (w) ; but a person induced by the fraud of tlie company to take shares in it, and who is a shareholder wluii the winding up of the company commences, cannot prove for the damages he has sustained ; for such a claim is inconsistent with his position as a member of the company (x). Cost-book mine. A shareholder in a cost-book company who has relinquislieil his shares and paid his share of the expenses up to the date of his retirement can prove for the value of his share, even in competition with the other creditors (y). Insurance societies (not limited) almost invariably issue their policies and grant their annuities on terms which render their funds alone liable to pay the policies and annuities. Tlie efficacy of such stipulations in limiting the liability of the IiiRur.incc s(K'ieties. (r) Ex parte Cannon, 30 Ch. D. G29. (s) See 25 & 26 Vict. c. 89, ^ 38, cl. 7, and § 101. See also, Addle- ctone Linoleum Co., 37 Ch. D. 1!)1, and Exchange Drapery Co., 38 Ch. U. 171, where some shares had been paid up in advance. (t) Grissell's case, 1 Ch. 528 ; Ex parte Brown, 12 Ch. D. 823, infra, p. 742, and ante, p. 727. (w) See A lison's case, 9 Ch. 1 , and 15 Eq. 394, and compare Campbell's case and Hippislcy's case, 9 Ch. 1, and 16 Eq. 417. (x) Houldsworthv. City of Gkstji;r- Bank, 5 App. Ca. 317; AddMriw Linoleum Co., 37 Ch. D. 191, in whicli Mudford's claim, 14 Cli. D. 634, and Ex parte Appleyard, 18 Cli, D. 587, are doubted. And compiii' Gibson tfc Co., 5 L. R. Ir. 139, wlieif the action was brought before tlic winding up, but qa(ere if this is con- sistent witli Houldsworih v. CiUjij Glasgow Bank, nbi supra. (y) Ex parte Palmer, 7 Cli. 28(5, and see a7ite, p. 524. PBOOF AND PAYMENT OF DEBTS. 737 i own lueiulicrs w. I, profits, directois' inst the coini)iui\ lembers ; but sucli stin^ the rii;lUsul , but in respect oi ers, may be iirove^l \w.v debts (/). company and lm^ uling up has com- a shiireholder, iimy to the comimny in by the fraud of the a shareholder \\\m :s, cannot prove tor jhvim is ineousisteiit any {x). vho has rehnquislieil enses up to the date )f his share, even in )st invariably issue terms which render uid annuities. The the liability of the |417. \sivorthv. CityofGhsp- Ip. Co,. 317 ; Addleslotu \o., 37 Ch. D. 191, ill ford's claim, 14 Ch, D. ; parte Appleyard, 18 Cli, loubteil. And conip;ii ■ L 5 L. R. Ir. 139, wlifu Was brought before tl:o jbut gaferc if tills is cull- Houldsworih v, Citpj \k, xihi supra, [rte Palmer, 1 Ch. 266, p. 524. shnreliolders has been already seen (z) ; but such societies Bk- IV. Chap. i. ... ... , .. Sect. 9. often have other creditors, and their policies and annuities lire frequently held by their own members. The conflicting; risrhts of these various persons have all to be adjusted when siuh societies are wound up ; and after considerable dif- ference of opinion, the following rules appear now to be •settled :— A. In the case of an incoi-porated company with a share Incorporated proprietary rapitid : companies. 1. The policy-holders and annuitants, whether members of die ctimpany or not, are entitled to be paid pari passu with die other creditors out of the funds of the company, including therein all uncalled-up capital («). i. The policy-holders and annuitants are not entitled to be piiid out of these funds in priority to the other creditors ; nor to throw those creditors on what may be raised by calls beyond till nominal capital (h) . ;1. The policy-holders and annuitants can only obtain pay- [ nient out of such funds ; but the other creditors, whether I members or not, are entitled to be paid, not only out of those lids, but also by calls beyond the amount of the nominal lispital {c). 4. The costs of winding up are also payable out of tlie funds of the company, and so far as they may be insufficient liv calls beyond the share capital (d). B, In the case of an incor^ .rated company without any Incorporated iciipital agreed to be subscribed by the members, the same j,.mieg. Ipriuciples would, it is conceived, be applicable : subject, of :) Ante, p. 246. '0 Emjlisli and Irish Church niul It'iiiYrsi'fj/ Assurance. Society, 1 Hem. |i:M. Ti); Stair Fire Insurance Co., 1 |H.iii.& M. 4.57, and 1 De tl. J. & |Siii.634 ; Professional Life Asmirance r..3Eii. Wi8, and3Cb. 167. See, p:;lii-r, Winstone's case, 12 Ch. D. S^i'i: Alhimi Life Ass. Soc, 15 Ch. P'iii.iV Kiib. 83; and Sander's case, f i'>. 403, as to the pusitioii of itvdioklers who are members in Mii-'istered unlimited company with L.C. two classes of sharelioklers. (h) International Life Ass, Soc, 2 Cli. D. 476 ; State Fire Insurance Co., and Professional Life Ass. Co., ubi supra. (c) See the cases in the last two notes, which remove tlie doubts ex- prc.'ised on this point in Athenmuni Life Assurance Society, Jolins. 633. ((?) Agriculturist Cattle Ins. Co., 10 Cb. 1 ; Professional Life Ass. Co., 3 Ch. 167, and 3 Eq. 668. 8 B 738 WINDING UP UY THK COURT. 4':;it Uiiincorporatcil companicH. Bk. IV. Chftii. 1. course, to this modification — that the members could not 1,, Sect. 9. ... compelled to contribute anything m respect of luicallid in, capital. C. Tn the case of an unincorporated company, wlietlier piv prietary (i.e., with a share capital) or mutual (i.e., whore tin insured look only to their own premiums), the rights of tin various claimants against the funds of the company (i.e., wy. ever can be got at without making a call) will be th(! saiiie ii< before ; but the members of the company cannot compete with their own creditors against the funds raisable by calls [t. But the holders of policies in such companies are not hable t.i contribute to the debts of the company (/). A provision that policies shall be paid only out of the fund- of a company does not entitle the holder of a policy which liai | become payable to any priority over the holders of policies which are still subsisting (g). The only difference between the two cases is in the amount provable against the compaiiv. Set-off lietwccn non-members and the cora- liany. 3. Set-off. a.) As bettoeen the company and strangers. As between a company being wound up on the one h;iii(i, | and non-contributories on the other, when the coinpanv i- insolvent the rules applicable in bankruptcy to cases of mutiu! credit are introduced by the Judicature act, 1875 (/()• Befo(f| that act was passed the ordinary rules of set-off were a| plicable (i), nor was it essential that both debts should have j been actually due before the winding-up order was made ij' Since the Judicature act a debtor to the company can set cifl a claim for unliquidated damages for a breach of contract I (e) See, on this subject, The Law of M utual Life Assurance, by Thomas Brett. (/) Great Britain Mutual Life Ass. Soc, 16 Ch. D. 246. For the rights of policy-holders when the company's contracts are reduced, see Great Britain Mutual Life Ass. Soc, 19 Ch. D. 39, & 20 Ch. D. 351. (g) Mclver's claim, 5 Ch. -Hi {h) .37&38Vict. c. 83, §10,(iU' p. 719, and Partn. 654 et seq. {i) Anderson's case, 3 Eq. 33", and see Mersey Steel and Iron Co. 'I Naylor & Co., 9 Q. B U. at p. 66: {]) lb., and see £a;;)arte/an«,S Eti. 225. IT. SET-OFF. 789 mbers could nnt W poet of uncalled- uji npany, whether pic itual (i.e., where tin s), the rights of ilic company (i.e., wlmt- I will be the; smiii' i\< cannot (.■ompete with raisable by culls ie, inies are not liable tii 0. only out of the fun(l> of a policy whicli has e holders of policies ly difference betwem igainst the coinpauy. strangers. up on the one hand, | ?hen the coinpiinyi> )tcy to cases of mutual I [act, 1875 (/i). Befoirl iS of set-off were ai )th debts should k Ip order was nwdelji. company can set oil [breach of contract bv| tluer's claim, 5 Ch. 124. [&38Vict.c. 83, §10,(ii.;' jid Partn. C54 et seq. Iderson's case, 3 Eq. 31.. lersey Steel and iron Co. ^' ICo., 9Q. B U.atp.«K ! Land see £a;iiaris, e.g., a debt cannot be set-uff sigainst a diiim for the return of goods (m). It has moreover been decided that a person who has accepted bills in nivour of the company is not entitled to restrain the liquidator j trum negotiating them before they are due, although the result , if such negotiation may be to deprive the acceptor of his right I to set-off against those bills a debt owing to him by the com- Ipiiiiy («)■ It is a connnon practice for the debtors of a company which Buying up (lfbt« lis being wound up to buy up bills of the company in order to them off. Isct such bills off against what the purchasers themselves owe Ito the company. The legality of this practice has been Iquestioned, and has not yet been scuttled by decision. The Lvneral scope of the Companies act, 1862, is hardly consistent Iwith any device by which one creditor obtains a preference lover others after the winding up has commenced ; but it is Iduubtful whether the language of the act is sufficiently clear ko defeat the practice in question (o). The effect of the 10th lection of the Judicature act, 1875, on this point has not been jletermined (p). The principles by which rights of set-off are regulated have |)een idready noticed (q). •Vs regards debts which have been assigned it is settled Sut-oir against , . iissigncus. hat a debtor cannot set off agamst the assignee of a debt due m\ him, any claim against the assignor which has arisen I ('.) Mersey Steel and Iron Co. v. f^l'ir d- Co., 9 App. Ca. 434, liming 9 Q, B. 1). C48, ante, p and see Lcc and Chapnuin's .30Ch. D. 216. [(() hce Hail Mills Co. v. Douglas V I'o., 8 Q. B. D. 179 ; and ^lif!/ Brook Coal Go. v. Marsh, ■ R. 6 Ex. 185, explained in 9 [B.B.fltp. 669. j('N) Eberle's Hotels, dtc, Go. v. E. N * Bros., 18 Q. B. D. 459. (h) Smith, Fleming, and Co.'s cast and Gledstane's Co.'s case, 1 Ch. 538. (o) See the case in tlie last note. (p) As to the rule in bankruptcy, see In re Gillespie, 14 Q. B. U. 963 ; Dickson v. Evans, 6 T. 11. 57, which show that rights of set-olF depend on the state of things at the date of the bankruptcy ; see, also, Ex parte Tlieys, 25 Ch. D. 587. (q) Ante, p. 273 ; and Partn. p. 290 et seq. 3 6 2 740 WINDING Ur BY THK COURT. 1^ Bk. IV. Cliap. 1. since the nssignment was conii)leted unless sucli clnim arises uu- Sect. 0. of the Hivnie contract from wliich the debt a88if,'ned arose, and i>. intimately connected with it (r) ; and this rule applies to (1( Lt- proved against a company and afterwards assigned, mid |iri- vents the liquidator from setting-off against the nssipip, ;, claim against the assignor founded on a breach of trust i. ; but not from setting off calls in respect of the ussignui^ shares {t). Again, a debtor may by contract or (jtlierwis, preclude himself from disputing a given debt when the debt is assigned, and from bringing it into account with t'ros> demands which he may have against his creditor ; nml wluiv- j Set-off aaainHt ever this has been done («) the assignee of the dulit s" debentures, &c. isolated can sue the debtor for it and obtain payment notivitL- standing any cross demands which he may have iigiiiiist tin | original creditor. Advantage of this principle is constuntlvl taken by companies who issue under seal promises to pay tin assign, or holder, or bearer of the instrument. A promise i ■ a company to pay A. B. or order, or bearer, if properly | stamped has been held to be a promissory note, alti]oii<;li imder the seal of the company (x) ; and the honn fuk Imlilirl for value of such an instrument can, if it is not Mltoi'itlitrl ultra vires, prove against the company in his own imnic, ninlj he will not be affected by any equities or rights o( sd-t which may exist between the company and the orif,'iiiiil| payee (i/). And even where the instrument cannot be trcatu as a promissory note, yet if its form and the circumstuiiced under which it was issued are such as to show tliat thf ntii pany intended that the payee should be able to raise niuinvoq ()•) (j'ovcrpment of NcvfoviuUinul V. Nowfouiitlldiid Hail. Co., KJ App. Ca. 19!) and car-us there cited. (x) Ex parte Thcys, 25 Ch. D. ,')87, and 22 ib. 122. Compare Ex iHirtc Mackenzie, 7 Kq. 240. (0 Expinir Miid'Hzie, 7 E([. 240, Financial Curporaiion'K dni" 3.'J5 ; Ex parte '^fncb' <;'Ei[.- and Jiuliciit'M ,»73, § i!5|iij Compare J (nim, 1!) E'i.;>'J (.'.') Ex J ' it y llank,:i Ch.">i Ex parte Gnii,ui /ic and S'imm-Wj!.!! E(p478. Bills(4Excl .!;,■« act, Isj § 91, el. 2. See as t(i Ni';,'otialiil:l but see the hist case. (u) As a nih', as.signees of debts by usage, Goodwin v. Kobarls, L are in no better position than their 10 Ex. 337 & 1 App. Ca. 470, .> . assignors, unles.«, by reason of special aiite, p. 474. circumstances, Athenceum Life Ass. {y) Ib. Soc. V. Pookij, 3 De G. & J. 294 ; RT. SET-OFF. 741 such claim arises nu! issigncd iiroHi', and is rule applit'H to dclits is assigned, ami pn- rtiiist the ashi|iiip.' ;i I breach of trust i.< ; ect of the assignor^ lontract or otheiwis,' L debt when the iliU account witli ci'os> } creditor ; and wluiv- TlieC of tilt! (Ifllt Sil tain payment notwitli- nuiy have a[,'ainst tlic )rincii)le is constiintlyl al promises to paytliH ■ument. A proniii^e li;- )r beaver, if vroiieiiyj nissovy note, altlioiidij 1 the huitn fide, linldtrj if it is not nltogi'tkrj in his own nanif, ai IS or rights of sot-uH oany anil the ovi-jinali nient cannot be tnaul and the circumstuid to show that the muj able to raise mum y on (/ Corjtoration'K ''"' ; jjarte "^lach ■ , ' H - •e; „(,„sl!)K.i.:i'j ,G'o(-- , »'■««(/ ^''^ "•'"■i''?'' BilU of Excl M-eacUStj . 2. See as to Ni-otial'il; ,e,(luodtcin v. llolmrUX 337 & 1 App. Ca.4:i;,.. 47-4. it, and that the transferee sliould take it witliout reference to Rk. IV. c'liai>. 1. the state of accounts Hubsisting between the payee and the - - - ~ ciiinpftiiy, the transferee is entitled to prove on the instrument ill his own name, and his proof will not be subject to any set-otf by reason of claims which the coujpaiiy may have au'iiiiist the transferor. A leading case on this subject arose on iidtilH-nture of the lilnkchi Ordiiniuw Comjhtni/ (c). There Hlakcly Onl- 111 11 i 1 1 ii 1 name C'ouii>aiiy'H the debenture was payable to bearer, and the bearer was case, iiuthorised to give a receipt for the money ; the debenture was iisiied to a promoter of the company, pursuant to a prior apeemeii* with him, and the agreement was coiiHrmed by the iiiiiipany's articles of association. It was held that the bearer nnild prove in his own name without being subject to any ti|iiities between the company and the promoter, to whom the (Itlienture had been given. A fortiori will the company be Included from availing itself as against the transferee of any lights of set' ^ff which the company may have against the tiaiisferor, if the company has induced the transferee to act on tiir assumption that he would become the company's cre- ditor («), or has recognised and treated him as such (b). b.) A.I between the company and contrihntoriefi '.'he right of a member of a company which is being wound Set-ofi between ,,,,,. • i 1 • 1 ii • ^ members ami Up to set-Oil what is owing to liim by tlie cumi)any against ti,e company. wliat is owing by him in respect of calls, or otherwise, does (;) Ex parte New Zealand liank- ifi]/ Corporation, 3 C'h. 154. Com- pare Financiiil Coiyoration'K ckiiin, ill. lij'i, where tlie delieiiturc was I jiaviiUt to A., liis executors, adniini- 'Tatui-, or transferees, and the person I [Testutiuy it was empowered to !,'ive il)ts; but there was no ayree- j mdit tu give iheni in this form, and I the cuiisiJeration fur the tlebentures had failed. The case was not one of set-ntr at all ; and «ee Romford Canal 1 to., 24 Ch. 1). «: (") Ex parte Asiatic Banking Gor- Ipiiio/i, 2 CIi. 391, a case of a letter of credit shown to the claimant. \Ditbrm V. Swansea Vale Railway Co., L. Tl. 4 g. r.. 44, debenture issued on purpose to enable the taker to raise money on il. (//) nruiiton's clttirn, 1!) E([. 302; Hiijfi^ V. Northern AuMim I'cu Co., L. It. 4 Ex. 387 ; E.c parte Uni- cc/vk/ Life Ans. Co., 10 £(]. 458. Til both of these the claimant had been registered as proprietor. See, also, JFoodhams v. Anglo-A atifralian Ass. Co., 3 Gitf. 238, where he was told all was right. Jix parte Charley, 11 Eq. 157, where the com- pany had allowed the transferee to obtain judgment. See, also, Huletfs <•<(.'(', 2 J. & H. 306. 742 WINDING UP BY THE COURT. Hk. IV. (jliap. 1. not depend simply on the general principles applicable to set- — - off, but also on the special enactments contained in Sj 3,s cl. 7, and § 101 of the Companies act, 1862. These aro n,t affected by § 10 of the .ludicature act, 1875 (r). By rofereiict to these sections, it will be seen — 1. That whether a company is limited or unlimited, luoiiov due to a contributory in his character of member, is not to bi treated as a debt of the company payable to him in cuinpetitimi with creditors who are not members { to a con- tributory, not as a member, but on some independent denlin. or contract, may be set off as if such money were owing to ;i person unconnected with the company (/'). 4. That in adjusting the rights of contributories intir v , monies due to contributories from tlic company on any account may be set off against money due from them to the orapany in respect of calls or otherwise ; and that in such cases theit is no difference between limited and unlimited companies (;/). arisseU'K oiiso. The whole subject now under consideration was carei'iilly considered m Grissell's cnnc (//), in which it was held — 1 Tim' (c) See GiWs case, 12 Ch. D. To;-) ; Kx parte Brovm, ih. 82'i ; Re n ','>.' - homo, .f' Co., 9 ill. .".OS. {d) § 38, cl. 7 ; Ex farta Gannon, 30 Ch. D. 62S), and .see Addhxton, Linoleum Co., 37 Ch. T). 1!)1 : and ? 101. Observe that the word nu'iuhi.'i' is used in § 38, and contril)ut(U'y in § 101. (e) § 101. See GilVs caxe, 12 Ch. ^\ 755 ; Re JVhitehoHse d- Co., !) ib. 595. Thi.« differs from the rule wliich prevailed under the acts of 185()-58. See 21 & 22 Vict. <: fiO, § 17, anf, 1!) E4. 449 ; Calishn's m. hiid iluwi ::• this case, see anti, nnl' (1). SET-OFF. 713 tKT. les applicable to set- 1 contained in ^ 3s, 862. Thest' arc uut 75 (r). By reference or unlimited, inouey \neii\bei', is not to bn to liini in (.'itinpetitinn L no set-oiV wliativf-r hI in favour of a i ou- ept when the rights of justed (e). I, money duo to a con- e independent ilonlin.; money were owing to ;i [jontributories intir >•, ompany on any account I them to the company hat in such cases tha. imited companies!;/;, .deration was carefuilv 1 it was held— 1 I'l^i; 101. See Kj- parte LV'^"(!. D. 823 ; I'rofcadim' U- , 3 Cli. Hi" ; '''''''■* '"■; ,>r, 10 lv|. ;H:2; a ai?-'i ' lauci; (MiiuiiiUiy, with !!.' Ltricliou a^ l- li»l* iiitinwl h> tlie I'lnuls nf tit 3.^, cl. 7, and § 101. l(;ii. 528, ami >ce ^''|" ' H,8 Oil. 254 ; Uurndfu'^^, |449 ; Caluher'i iv-,«, ■") w, to calls itiaiie In't'oie t'w | ui),aiul7':'' ]'«'•''• '*^"*' 40. Thf Judicature act b Ll the law a> laid down b I, see anti:, not" ('). a creditor of a limited company, who was also a contributory Bk. IV. Chap. 1 ... pGct. y. ill it was not bound to pay the full amount remaining unpaid — ■ nil his shares before receiving any dividend on his debt ; •2. That he was not entitled to deduct the calls made or to be iiiiule upon him from his debt and to receive a dividend on the balance; 3. '-hat he was entitled to prove his whole debt, and tn receive a dividend on it pari pasnu with other creditors, and WHS liable, on the other hand, to pay all calls upon him in full as they might be made. It might be inferred from this decision that the only right to set off in such cases is to deduct sums actually due and pay- HJilf by the contributory in respect of calls from the amount of dividend actually payable to him in respect of his proof. But it has since been held that where a debt is proved by a lOiitributory, the company is entitled to set off all calls due from him and actually in arrear at the time of proof (j), just as it could set off any other debt due by the contributory to the company against a debt due l)y the company to him. The provisions of the act and the above decisions do not, I'l.xeeptions to however, apply to debts or costs which have become due to contributories from the company acting by its liquidators in tlie course of the winding up {k) ; nor where the contributory is bankrupt, or his estate is behig administei'ed under the liaiikruptcy acts ; for then, whether the liquidator proves iimiinst the bankrupt's estate (l), oi' whether the trustee in liiuikruptcy proves against the company (w(), tlie balance due from the one estate to the other, after setting off all nmtual (kbts and credits, is all that (^an be proved. Moreover, if two debts have been actually set off before the winding up com- menced, the liquidator cannot disturb tlie set-off so made (n) ; but agreements as to set-oft' made when the company is in diffi- culties, are regarded very susi)iciously, and may ho altogether (i) See ante, p. 557. See, also, Kjparti' MackeiKu, 7 Eq. 240, whei'e tlif proof was by the assij.^ee of a ilflicnture. (/;) See Ex pnrti' Clark, 7 E(i. 550 ; tt, also, Kx park Smith, 3 t'li. \i'o ; General Exchange Bank, 4 Eq. i;i8. (/) Re Duckworth, 2 V,h. ruH ; Kx parte Stramj, 5 Ch. 492. (ill) CorralU and Haijijard's claim, 4 t'h. 174, and the last note. (»t) llahernhon's ca.'n:, 5 Kq. 286, aiul see Sparyo'n Crtar, 8 Cli. 407, and other- of that da.ss. 744 WINDING Ur BY THE COUET. Bk. IV. Chap. 1. Sect. 9. Obscrv.ations on § 101. Proccoilings under S Kill of the Companii's act, 1862. Companies act, 1867. void as against creditors on tlie ground of fraudulent incfci. ence ; and in a case where the agreement was with a dian tm and related to a debt secured by a debentr":- not then payable, the agreement was hehl invalid (o). Indeed, the better opinion seems to be, that agreements fni paying calls by setting oflf debts, which may afterwiuds btounit due from the company, are not binding on the compaiiv, m least when it is being wound up (p). It is worthy of renuirk, that § 101, which prevents set-dff in favour of the contributories of limited companies, applies in terms only to cases in which a summary order is made iipoHit contributory for payment of money due by him to the ciiiii. pany ; and in one case it was held that where a company was being wound up voluntarily, and the liquidator brou'^'ht mi action for calls made in the winding up, a plea of set-uti aflforded a good defence to the action {q). But tliis decision has been justly criticised, and cannot be relied upon (r). The mode of winding up is immaterial with respect to the right of set-off ; and in no case can a contributory defeat an action liv a limited company in liquidation by a set-off, unless he cnn show that all the creditors are paid, and that as between himself and the other contributories, the set-off ouc'lit to W allowed. X director has no right to set off a debt due to him finm the company against a claim made by the liquidator luuler § 169 (s). The right of a contributory to set off a debt due to him from the company against calls made on him is very inaterinUv aflfected by the (Companies act, 1867 (0 ; and if, in a case l< (o) Habersiwn'n cast, 5 Eq. 286. (p) See PdlatVs case, 2 Cli. 527 ; Caiishcr's cciKr, 5 Eq. 214 ; Bargees case, ib. 420 ; 30 & 31 Vict. c. 131, §25. ((/) Bri(jhtnn Arcade (Jo. v. Dow- ling, L. R. 3 C. P. 175. (r) Wliit chouse d' Co., 9 Ch. D. 695 ; IU(ick dk Co.'a cnse, 8 Ch. 254 ; Sankey Brook Conl Co. v. Marsh, L. R. 6 Ex. 185 ; and .<.i' 10 Eq. 330, pcr\'.-C. Malins in I'Ubhs mui IFcst's cnsi . (k) Varriaijc Vo-opcratiK Ni^y? Association, 27 Ch. D. 322; £/ parte ^dly, 21 Ch. D. 492 ; PmM case, ib. 498, n. ; FHtcrvJ't'i< Mf:,h 519. An where the diectorbl (e debt due to liiiu l)^'*' lis made against him. SECTION X.— CONTRIHUTORIES. 1. 'The list of contnhutories. The iiersons who, on the winding up of a company, are com- List of contri- ]Kllabk' to pay ito debts by contribution amongst themselves, are termed contributories {x) ; and one of the first duties of the Court, after making a winding-up order, is to settle the list of contributories (,(/). Who are the persons to be put on the list will be examined presently. With respect to settling the list, it is to bo observed— 1. That the Court has power to rectify the company's register of members (s) ; 2. That persons who are contributories in their own right are to be distinguished from persons who are contributories as the representatives or as being liable to the debts of others ; and 8. That where the personal representative of a deceased contributory is placed on the list, it is not necessary to add his h<'ij's or devisees, although they may be added if the Court thinks fit (a). It is the duty of the official liquidator to prepare the list of Settling the list, contributories, and to leave it with the judge at chambers (b). The list is to be verified by affidavit, but it may, from time to time, be varied or added to by the official licpiidator by leave of the judge (c). Uptm the list being left with the judge, the (ii) Cleluwrs case, 14 Eq. 387 ; Pa^iii and Gill's case, 6 Ch. D. m. '1) Tliis word was introduced by 11 i 12 Vict. c. 45, § 3. (c) § 98 and § 35. («) §9f). (b) Rule 29. (r) lb., and see the forms in thi- \y) See the Companies act, 18C2, schedule to the Rules, Nos. 24 to 32 746 WINDING UP nv THE COURT. I'.k. IV. Chap. Sect. 10. I'onns of lists AltcnJanco nn si'tUiii" list. official liquidator obtains an appointment to settle the same • and it is his dutj' to give notice in writing of the appointment to every person included in the list, whether resident within the jurisdiction of the Court or not (d), stating in what clia- racter and for what number of shares or interest lie is included (c). Similar notices are to be given when anv vmin- tion or addition is made to the list (/). The notices must b( served four clear days before the day appointed for settUn" ((/). The result of the settlement of the list is certified bv the chief clerk ; and certificates may be made from time to time for the ptirpose of stating the result of the settlement down to anv particular time, or as to any particular person or variation (/d. A person may be summoned to be sworn and examined in chambers, in order to determine whether he ought to be :t contributory or not, although the list may have been aiieail', settled (i). Forms of lists of contributories are given in the schedule u the rules issued under the Companies act, 1862 (k). Every contributory on the list, and every creditor whose dtbt or claim is allowed, is entitled to attend the winding-up proceedings at his own expense (l) ; and therefore to attend uii the settlement of the list of contributories. The judge, nmrt- over, can appoint persons to represent contributories an! {({) See Naflian, Nevman d: Co., 35 Ch. ]). 1, a? to i^eivice abroad, (e) Eulo 30. (/) lb. ((/) 11). See the forms of notice iuid affidavit of service ui schedule 3, Nos. 26 and 27. As to notices under the older acts, ."ee 12 & 13 Vict. c. 108, §§ 26 and 32, which altered the law as to notices laiil down in Gldhoime'if case, 1 l)e G. & S. 583, and Hutchinson's case, lb, .-)63. ill) Eule 31. (i) See Re The Esgair Mwijn Min- ing Co., 8 VV. R. 660, and ante, j). (589 et seq. {k) See Form.s Nos. 24, 29, 31. P'or the form under thr nlilii winding-up acts, see 1 Di- G. i S. 548. (0 Rule 60. This rule does n : give a creditor the riglit to be lieai i in argument, nor to his costs if his attendance is unnecessary, Im'I E. Montagu' a case and Gre;/.s C(w«, W.X. 1888, 137, nor to attend jn'oceeiliii;" under § 115, see unte, p. 691. A- to his riglit of cross-examination, ne Brampton v. Longtmvn l{ciil.Co.,l\ Eij. 428. See, also, Bugf/n case, i Dr. & Sm. 452, where souie of the t'lH- tributoriea sought to put on the li-l I a person omitted by the iiquiJat'r, and see infra, note (z). IT. THR MST OF CON'TRIHUTORIES. (47 to settle the same ; of the appointment ther resident within ;tatin. 691. -^^ it of cross-exaniiiiiUioii.Hf | V. Lowjtown Rail Co., H where some of the en- souf^ht to put on the h-t I )mitted by the lie (J. & S. 338, and 2 De U. Mc. & U. 128 ; Ex parte Best, 1 Sim. N. S. IftS ; K r 748 WINDING UP BY TUK COURT. Bk. IV. Cliap. 1. Sect. 10. Laclics. Power to rectify the register of members. Appeals, &c. This case is valuable as showing that mere laches on the part of a contiibutor}' in allowing his name to remain on the list does not neces. irily i)reclude him from having it VLinoved if the company has not been damnified by his delay. As a rule, however, where a person has been settU'd on tht list in chambers, he must apply to the judge within three weeks if lie desii'es to question the decision {q). Moreover ;i judge of the High Court cannot now rehear his own decision; if not acquiesced in it must be appealed against in proper time {/•). But where there are several case** of the same kind all determined alike, and one of them is selected as a lest case and is successfully appealed, the decisioi s in the others may, it is conceived, be rectified by the Court below without separate appeals (s). In order to settle the list of contributories properly the Court has power to rectify the company's register of mem- bers (0 : rtnd where a company is being wound up by the Court, the Court, when settling the list of contributories, will rectify the register without any special application for that particular purpose («) ; but the power to rectify the register cannot, it is conceived, be exercised by the lifjuidators of a company which is being wound up voluntarily or subjeet to the supervision of the Court ; and where in such cases recti- fication is necessary the Court must be applied to (x). The practice with respect to certificates settling the list of contributories, and to applications to vary them, and to appeals from orders settling persons on or ofi' the list of contributorie>. parte Kelly's Executors, 9 W. R. 32!), and Be The Esgair Mwyn Alining Co., 8 ib. 660. (2) Dickson's case, 12 Ch. D. 298. (r) St. Namirc Co., i J C;b. D. 88, see ante, p. 698. (s) See Kx i)arte Munday, 31 Beav. 206. But see the last note. Where no test case has been selected, see Esdaile v. Payne, 40 Ch. D. 520. (t) See §§98 and 35, and ante, p. 120, and infra, p. 755. («) See § 98, Breckenridge's case, 2 Hem. & M. 642; JVliittd's ms', 2 De G. & J. 577; Birch's cm, ii 10. (.(,•) Ptiwer to rectily the register may at first siL;lit he supposeil to k j given by § 133, el. 8, taken in c-s- nection with § 98. But a cio« examination of the words of \\m sections, and of § 35, will, it is con- ceived, show that this is not so. f See Gilbert's case, 5 Ch. 559 ; Mm Brighton Arcade Co. v. Doidin'i,Ll 3 C. P. p. 187. THE LIST OF CONTRIBUTORIES. 749 mtarily ov subject to in siicli cases recti- I to (a;). jttling the list of them, luicl to appeals list of contributories. J. 577 ; Birch's a<.«,' Y to rectify the re;:i;w j 1st f^i.nlit lie supposed to I , 133, cl. B, taken in M fitli § 9B. But a closet j Im of the words of t!K« ind of §35, will, it is Mr.- low that this is not a frtK, 5Ch. 559;but8et adeCo. \:Dou!lin(!M is the same as in other cases (y). An appeal from the decision ^'k. IV. Cliai). 1. of the judge acting in the winding np, may be made not only — — — l)v a person who contends that he is wrongly put on, or excluded from the list, and by the official liquidator on behalf of the company, but also by any other contributory (z), or (it is presumed) by any creditor who, under the same act, is a party to the winding up. The (piestion on the appeal being simply whether a given individual ought or ought not to be on the list, it is not requisite to bring before the Court another person who will have to l)e put on the list, if the individual in question is struck off («). And an appeal cannot be objected to on the gi'ound that there is no means of settling the person, who is liable for the shares if the appeal is successful, on the list of c'ontributories (/>). The usual parties to the appeal arc the alleged contributory and the official liquidator (c). Xo person ought to be settled on the list of contributories No person to he until his liability to contribute to some debt, liability, or 1,1;, liability to loss of the company being wound up has been ascertained : '^!^l!''(|'|'j!|i'*gj'** lie ought not, for example, to be put on the list " in re- spect of any expenditure which he may be j^roved to have authorised " (d). Under the acts of 1848 — 49, it was ultimately held that if As regards pcr- 1 . 1 I- T 1-1 i i-i 1 i ^'-"''^ xecondariiy there were two classes oi persons hable to creditors, but one iiaiiio. of those classes was bound to indemnify the other against all demands, the persons composing the class secondarily (j/) See§ 124 and I'ule 5(i, IHcksim's case, 12 Ch. I). 21)S, and mile, j>. 697 d seq. (•) See Bush's cane, (J Ch. 240 ; Hhips case, 2 I)e G. J. & S. 544, and I'oicius V. Ship, L. 11. 3 H. L. 343, where a cuntrihutory olitained leave to iuterveiu'. Si 'C, also, Bjlackhnni'.-: am, 3 Drew. 40!), and 8 Do O. Jl. & G. 177. 7)1 re Binbniii United Mini's, 2.3 Beav. 385, the official niana^'cr conteudeil that a person oui,dit to he on the list ; some eonlrihutories ap- I'lii'd to lie heard on the same side, Imt the Court declined to hear tlieni. See iiV Xorvich Yarn Co., 1 3 Beav. 428, note ; and see Ik Etna Ins. Co., Ir. Rep. 7 Eq. 3(52. (a) See Curtis case, 6 E(|. 455 ; Sanderson's case, 3 De G. & S. (i() ; Hall's case, ib. 80. (/*) Duchess of Westminster Silver Lead Ore Co., 10 ("h. D. 307. (<■) The creditor's representative ajipeared in Kieors case, 3 De G. & •f. 387, but was not allowed to be hciird. Til I'Jx parte Finlaij \\i this view, if logically carried out, involves as a conseciuence that the creditors can have no greater xv^\\^\ against (lie contributorics than the company in its corponitf capacity itself has. This cimsequence is not consistent with j the decisions above referred to, nor with (jther cases in wliidi perscms entitled to indemnity from the company may luvn- theless be contributorics for the payment of its ikbtsii. >Vhethei-, however, the true view is, that after a windiiigni order the creditors have against the individual meinbors ngliisj which cannot be enforced befoi'e the winding-up order; orl whether the true view is, that after a winding-up order tliej company, as a trustee for its creditors, has greater rii-'liNJ against its contributories than it had before, is not peilmiJ (/) See, liirtlier, on this point, Wiltshire Iron Co. y. Great JViMcDi nail. Co., L. 1!. (5 Q, B. 101 and 77(5 ; and as to si^t oil', anlCy'p. 741 et seq., and fraiidulont iiiet'ct'eiices, ante, jo. 668, and under § Kio, ante, p. 693 et seq. (tj) 5 A\^\). 'a. 317. See, also, Addlestone Liu team Co., 37 Ch. D. 191. {h) See Ship's case, 2 Dc V..li Sni. 544 ; Re Duekwurlh, 2 Ch. J/ IVehb V. IVhiJIin, L. H. T) H. L. 734, 2«r Lord ('aims. (i) See Lord Selbornu'.s obsiTvj tions in Blaek d: C'o.'s case, 8 Ch.i'j (at pp. 261, 262), and Chapman 1 Barker's case, 3 Eq. 361. coNTninuTonTRS. 7fi6 Si'ct. 10. v,rv iimtfi'iiil. Hut one (ir dthcr of tlicse vicwH imist, it, is 1'1<' IV.('lmi). 1 .iilmiittiMl, Iio correct; iiny titlicr iippciirs iiiconsiHtcnt with the ilt'iinioiis iM't'orc refcrrt'd to, with tlic course of h'f^ishitioti „]i tlic sulijt'ct of Joint Sto(;k ( 'oiiiiniiiics, mid with tlioso pro- vi.iiiiis (if tiic net of 1802, which arc introduced cxjiri'ssly for tli. Iiciicfit of creditors, c.*/., those provisions wliicli rehite to tlif i'f},'istcr of siiiirehohU'rs, the rij,'hts of creditors to ohtain ;iiiiliiij.'-ui) orders til ■ifect of siudi orders, the ri<;hts of crei ilitoi's iiniler them, friiiidideiit prcfortMico.'iind set-oif. Xiiv, more, the position of shiir(di(d(h;rs in conipimics, I' ivlutlicr solvent or insolvent, is very dilVei'ent iifter an order to lir.'C'>.s H c'llSC. hcf. th d( I tod niiid lip from wlmt it wiis l)Ctore llie order. lliis wiis ponitc( „iit hy ■Icssel, M. 11., ill an adniirahle jud<,Mnent in Jin njiHu'H ,.(.sr(/,l, iiiid iinist never he lost si<,'ht of. Aiiotlicr cii'cinMstiince which rendei's it important to h(> '''ii"«'<- "f l"'w»;r ,,,,.. . t'l ITitit'v till! (iiitful licl'ore relying on the older decisions on the (pieslion )V|^'isur. In! ajiiti'ihiitoi'ies, as authorities under the act of 1802, is the }i nvci' ^'ivcu to the Court to rectify the company's register of iiHiinbers (/). This power renders the actual state of tlu; joimpaiiy's register of little or no consequence if it is shown to V Wl'Dll),'. A third point which it is necessary to hoar in mind when .\lti'iiiii"i>« in I aiiplyiiij,' the older decisions to modern cases, is the power of einiiiiKntcmciit lllie Court to sanction the registration of transfers after the" ^*"" '"""''• |f iiiimeiii't'iiieiit of the winding up. This suhject will be con- >iilei't'il iu'i'oafter, when treating of the position of persons who Ikve oeiised to hold shares in the company, and it will then he Iseeii that under the older acts, sellers of shares were lield to be Iwiitributories under circumstances which, if they were; now to Ixcuv, would render the buyers contrihutories in their stead. I':) IlnriifXK's r(L. list. As regards present members there does not appear to be aiivj substantial dilierence between companies formed and registeredj under the Companies act, 1802, and other companies (m) ; but! as regards past members there is a very material difference, i)s| will be seen hereafter. It is proposed first to investigate the general principle^ applicable to the first three classes and then to notice thtii application to special cases of dithculty. The 4tli class, a!i(| lastly Past members, will follow and complete the subject. A. CoNTRlliUTORIF.S AS PRESKNT MKMUI'.IiS. 1. Duly eonstlintcd shiircholdcrs. ^See Bk. I., cc. 2 vm\ 4.i Subject to one or two exceptions all persons w!io, at till time of the commen(;ement of the winding up of a couipiui} jij are duly constituted shareholders therein, are conti'ibutoriosi (m) See Ex park Littkdak, \) Cu. 2f>7. (») -'1"'', !'• ^^^- OONTRIBUTORIES. — ESTOPrEL. 757 :ORIES. into thvcp cliisses, s ; 2, conti'ibiitovii ? sentatives. it members nvo divi- nying that tlioy aiv nt to become share- nging to one or other t members are those Bsent members if thf y leased to hold shait; | up. it members nre settleil {•ontributoriesaspast] B. list. not appear to be any I formed and registevedl ■Y companies (m) ; but! material dirterence, asj ^le general principle^ then to notice the 'Vhv -Itli chiss, au(| hletc; the subject. T MKMUEUS. Bk. l.,cc. •2i:ull.i ll persons who, at tlij Ig up of a eompanyl'ij |i, are contributoviosr ()/) .-l/i^, p. «*)■*• it, It is immaterial whether the persons in question were the ^^' '7' ^'''''*' ^' (ivJiTinid founders of the company, or whether they have become 4aieiiolders by a direct allotment of shares to themselves, or whether they have become shareholders by a transfer of shares previously held by some one else. These general propositions rniiiire no comment. They apply to persons wlio are made -hareholdfrs by special acts of Parliament (o) ; to all classes of uiciubers and shareholders where there are several in tlie same iiimpanv (i)). The particular- cases in this class will be found ii'.idertlie heads 5 to 11, and under head B. The excejttions are persons under disability and persons like iimbassadors (q), and holders of fully paid-up shares, who are iiuthable to any call or contribution and who therefore cannot 1, settled on the list against their will although they are (!ntitled tnbeon the list to obtain their share of an}' ultimate surplus there nniy be. 2. Persons irhu arc estopped j'roin deni/iiiij that they are shareholders. It has been already seen that persons who have not com- rcisons evtopi e.l [ilicd with all prescribed formalities may be estopped Ironi t|,',',t ,'i|,.y .,,.y aeuying that they are shareholders (/•)• .sharehuMe.s. Even before there was any power givi'U to the Court to irttify a company's register of shareholders, it was settled that all persons who, when a petition for winding up a '.oni,M''v «as presented, were estopped from denying that they wi i-e ■liiu'dholders in that coinpany, were also contributories in it, unless they oould show good reason to the contr.iiy. It is «iwily immaterial whether such persons are or are not T'lierly described in the company's register of share- Udei'S (.s'), or whether they are or are not shareholders iu ' ) Kinadih i-iifi-, 11 Kij. l!)-_' ; f ■'"■<■ i((X(, 1!) ib. :W,i ; (J'jlrien'.t '".Ii. Kep. 11 Ei|. -i-l-l. \i': N'('//i Lnnduii Fish Markit Co., ISil'li. 1). :i:>4; IFiii.-^toiic.'i ca.^e, 12 Ci:. I),:i3!). (Joiiipan.' (iri'dt llrUain ^Iv'ml Life Assuraii'X /incietij, 1(5 ib. {([) S 'e Mdiiilidi iHi Steam Co. v. Midiiii, '2 K. i^ E. 1)4 ; ul' louise, tlii'v lau recti\u mitliiiig without beui;.' clinrgfcl iu account with calls. (/•) Set', nn this subject, nutt, pji. 48 c< scq. (s) YdlanitU c.w, r^ De (i. (Si S. 758 WINDING UP BY THE COURT. V.k. i\. Cbap. 1. i]ie stric': sensf; of the term, and, as such, habU', in the fK. i Sect. 10. _ '"^ I . — of .^,1 ^y registe?*ed company, to be sued by creditors of the company. Sti-affoii's Kxeei- StniJfoH's Kxefutom' rif.s't' (0 is a leadmj.;' authority un ' tors' case. , , ,,,, , . . ,. > i i n bead. Ihere the provisions oi a company s deed of stttliniinti required that all traiis+'jrs of shares should be made in particular manner, with the consent of the directors testified in | a particular manner, and that the transferee should execute I'ne company's deed of settlement. It was also expressly deckivil that no transferee should be entitled to any of the jirivil of a shareholder until he had executed the deed df settkin,,,,, .\ ]\Ir. vStratfon bought various shares which wore, in tact,| transferred to him, and in respect of which certificates aul dividends were, in fact, given and paid to him. The sli;iiis| liad never been transferred to him in the nuuiiier pvescii by the company's deed of settlement ; nor had he ever execiitill that deed. He had, however, executed a sufficient deed iiil respect of some of the shares, but not in respect of the (itliebj and his ext.'cutors had been returned to the stamp office asj shareholders in respect of all his shares. On the winding i of the company after his death, his executors W(?i'e made c oi- tributories in respect of all his shares ; it being pcrfectlyl clear tiiat, although the jirescribed formalities had not rigorously complied with, enough had been done iu estop lintiij the coinpanj' and Mr. Stratl'on from denying tliat he ^^;ls| virtually a shareholder in the company in respect of them all. Persons who ^^^^ .^^^ irregularity in a transfer of shares will not precliidel nave acted .umI t j i ■ licen tie;ite.l ;i- the transferee from being a contributor\- if the transfer has kei i*liai-eliol'lec>. . i ^ x i i • • i ' i idtliouyli till'. registered (if). Indeed, it is now clearly settled, as n gemial liixve not I- 1 l)liei.l witli formalitii'N. 39;"), and ntlu'i.-- of tliat class noticed under the next head (3). (0 1 De G. M. & G. 576, uid 4 De G. cSc S. 256. See, also, K.. IHirlc THxoh's Ej'ecutorH, 1 Dr. & Sin. 225 ; Alwjuire'.i case, 3 De U. Oi: S. 31 J Samlerno I'.i case, ib. 66, and 3 H. 1,. 61i8 ; Gordon's case, 3 De (!. \ Sni. ^4!) ; ;iiid the fullowinL; cases iiiisin.ij; in I he lii|ui('atiiin nttlicCitv (if Gla.sj{ow P>ituk. /Jill anil Ijhihj^ iiiHt', 4 Ajip. L'a. '(47 ; Ki:r's case, il>. 549 and 5'.) am, 6 Oh. 246, and Mirnni y,I:^'4 L. H. 6 il. L. 157, where a iw-onf v,ho liiid irivj,'uiarly tnin.slene(llii| shares was held not to ije a ■ ^i 1 ri 1 lutoiy, and ct aniiaio that libf « "i| Keene's Ej:ccutors' ci*', 3 De (i. .M.iSj (J. 272; nroHirx (W.v, 1!) licav. yl URT. CONTRIBUTORIES. — ESTOPPEL. 759 •li, liable, in the i;,<,, I by creditors of tlie .iiig' authority on tins y's deed of settlcinEiit | hoiild be made in a e directors testitiiilii, •ee should execute tlif | Iso expressly dedaial any of the ])rivil' le deed of settleuiuii, which were, in f;ict,| vliich certificates aii;l to lain. The shiutsl le maimer prescrili''i| • Inid he over exeeuul I a sufficient deoil inl respect of the ntlkb to the stump offitca^j Ou the winding m utors were madi' O'li- ; it being ptrt'i-d!y| uilities had not liteiil u done in estop li>i;lil eiiyin^- ibat he ^>as| respect of tlieni nil, res will not prtclnilel tiie transfer has lud settled, as a gd:i!;il] )',)>s, and L'liiiitiijhim' vJ .<;inw Bank, ib. (i07. /.■. r.^hcim's caie, 8 C'li. iv;^isti'ati(in was j-i;* -uhiv. Sfi', also, l'>"'"\ ■2ii3,iUu\.Mumvjv.M I. L. ;J7, wlicre a pui-ofl rri'gularly traiisleiri'J l4 A hul.l not t.i bf ii. 11^ and conipaic that i'a>t.'i>:ii xntors (•((.<'■, 3 l)c ueiiiier become nor agreed to become a shareholder, tin- eircunihtance that he has acted as a shareholder will not ikcessarily render him a contributory. Thus it was decidvjd, r ifV d)t; old winding-up iicts, that a i)erson who had never lit, !;' ,' shareholder, and liad never agreed to take shares, I dill not become a contributory in respect of shares improperly allitted to him, although he had executed the company's deed f (il settlement (/y) ; or had attended meetings of shareholders (;) ; I ami even under tlie Companies act, 1B62,, a person registered IIS the holder of shares illegally issued pursuant to a V(»id ■liienie for amalgamation has been held not to be a con- I trUitory, although he has acted as a shareholder and a (iii'eetur (((). The application of these principles to directors who have iiikd as such without being properly qualified, will be ItXiiiniued hereafter under head (G). I i/Mii/(KOH',f Crt.sr, ill. 107, where |l«ijiiiis who had transferred tlicir hkii's invnulaily were held loii- I'tiiiuturito. ') bee, in additidii to the caM_'> I cite! in the hust two notes, Mx jmrh' |t''ri(rarf (.'i>rpuriili(m, 3 C'ii. 105 ; r.lil/iV ('((.*', G C'h. 2t){5; LcUhtmiH V. i'.»:/imm', 1 Moore, 1'. ('. N. S. I'iio; Itiihiii.'ion'.f E.a'i'Utof/ (•((«, 15 [■'or. 438, and on appeal, -2 JJe (J. ix >: (J. 517, wliere no .MJiarcs were really taken, but dividends were paid upon tlieni ; UrruHr-l'.-i ni.f.; 5 l)i' li. i; S. -IKi. {ij) As in I 'till iiiiiit's fd.-n , 1 DuO. ,i. ^ S\n. 4!)5, nolieud infm, under head 4 (/). (•.) As in Iliniii's fii.li , -2 Del). V. k •!. 275, ill/ fit, under head 4 tl). (i() A- in Store mill Jl'oiih'a case, 4 Oil. lJH-2, iiijhi, under iiead 4 /*). See, also, Hinitk's citsc, 4 Cli. (ill. P '(.S 760 WINDING UP BY THE COURT. m. IV. Chap. 1. Sect. 10. m Allottees of shares. 3. Persons who arc hound hy agreement to liecome shareholtkn. AVhat constitutes a valid agreement vitli a company to talc shares, and what not, has been examined ah'eadj', see Book 1, c. 1. Speaking generally, a person who has agreed t(j become n member of a (;ompany being woiuid uj) is u contiibiitiiiv whetiier he is actually a member or not ; and, on the dtlur hand, a person who is nut a member, and has not agntil to become one, is not a contributory. This will be seen lieie- after (/>), The position of persons who have agreed to take shares ii.t from the oompuny but from perst)ns who are alrcudv sliuiv. holders will be examined undi.r the head of I'ast Mcmliei,,. It has already been seen that transferees of shares wlio have been accepted by the company as shareholders, are coiitrilm- tories, although they may not have com])lied with all tln^e foriualities which ought to have been observed in the tnii fer \c) : and it will be seen hereafter that transferees of sliaivs | who have not been accepted by the company as sLarebolikK were not contriijutories under the older winding-up acts, ainl are not conlribuiories under the Jompanies act, 1802, ixnit| in those cases m which there is power tt) rectify the cuiiipai: '> register (d). With respect to persons who have agreed to take slar.til directly from the company, it will be convenient to distingiii^li | unconditional from conditional agreements. The latter " be sei)arately considered liereafter (c). Further, in dealing with cases resting on agiveinciit, it is] important to distinguish a concluded iigreemeiit, wlutkr simple or conditio'.ial, from that wliich is in truth no a'jiif ment, in consequence t)f there not being a linal a^sfiit bvl"tli| parties to the same terms {/). (jb) Infra, under the head 4 a). (c) Anl''s case, -1 Cl'.. IT-, "i!:! Peck's case, ib. 5:!:^. And s.- :', judj^'uient of L. .T. Cnton in.i' j case, 3(5 C'h. U. 702. CONTRIBUTOUIES. — ALLOTTEES OF SHAKES. 761 Jiceomc sharehuldini. 1!k. TV. Chaii. 1. a) Allottciis of shuics in formed companies. Sect. 10. The following are the leading older authorities for the jn'o- position that a person who agrees to take shares from a com- pany is a contributory : — Ydknd's ca.^e, 5 l)u Q. & S. 31)5, iillinaud on ai^jual, 16 Jiir. 50!), where the iiUottee had not exccnted the conqiany's deed. Shai-pu.'^ crt.se, 3 De G. & S. 49. Mtinnfii'hl'-f case, 3 De G. & S. 58, and on ai)peal, 2 M. & G. 57. Ill the^e tlie alliitiiient was niaile lid'ore the company was com- pletely registered. The allottees did not execute the deed, and the proposed capital was never raised. See, also, Lyon^s (■((■■.■<(•, 2 K. & J. 253 (a cost-book company). yjiVdV (■((.>■(', 1 Slrn. N. S. 47. AImi illustrate the same principles. .More modern aiitho.nties to the same etfcct abound in thi; kidks. One of the miL^t recent is Tlir Linnni'd ]l,(,, 14 Etp 148. Marine 200. I'lilide!! can now be stamped after (/,-) Adam's case, 13 Eip 474 ; their execution on payment of a Harward's owe, 13 Eip 30; Sidney's '02 WINDING UP «Y THE COUIIT. ]5k. IV. CI Sect, Agreement tn take fully jiai'l up shares. Agrooniuut tii take shares at future time. llarrett's case. Optum to pav in casli or >liave». liap. 1. notice are in truth only niiitorial where there is no a"it'eiiuiit without thoin. In the ordinary case of an upplicutioii fur shares, there is no agreement in the absence of allotment ami notice of it ; but there may well l)e a Ijindiuii; iigreemtiit without either of them (/). An allotment following an application for shares will, u!ili>> otherwise expressed at the time, be treated as an allotniciit ut such shares as are applied fplication, and before the allotment, the nomiiiid value of the shares has been altered, and the allottee has no noticf of the alteration, he will be a contributory in lesjject of such shares as he applied for, but not in respect of thfiii ;w altered {in). A pjerson who has only agreed to take fully paid-up sliart^ cannot be treated as a contributory in respect of shavt'> imt paid up («). An agreement to take shares at a future tinu' will not leiidii a person si contributory, if the winding up of the company lia> commenced before that time arrives (o) ; but if shares aiv agreed to be taken at once, the person agreeing to take them will be a contributory, although they are not to be paid fur until a future day, and the certificates for them are not to ]»■ delivered until payment (jj). Again, where a person has agreed to take cash or shares at the option of the company in payment oi' his claims a'ini'i>t the conijiany, and he has not received either cash or slians, \iv cannot In lompellt'd to take shares after th(,' company ha> been oi'd. 19 ct sen. ;5I(). See, also, Riclidrdu v. Hoinr (») Arnot'^ case, M Cli. D. 't'l AsHur. A>u!il, See i?i/?v«, as to luiiil-iip >liaiv''. »iki-re nn agent apiilii'il for share*. (n) lliirrdt',^ cu-i' . 2 Ui. & Sm. iiuil was reL;i-ti'ieil as their bulihi-. -115, ami 3 T*\ (1. ,1. >v Siu. ;iO. (/) See, as to this, anti, p iS d (yi) Il>, TIm lasi' tunied on the ,<.■hiire of surplus assets, he was held not entitled to be on it(.s). So it is appreliended lie could not liav^ been made a lOiitiibutory against his will if there had been a deficiency {(). An agreement to take shares which has been duly rescinded .Ameemonts liffoie the commencement of the wiiULing up, will not render till piiity to it a contributory unless it be as a past member. r)iit,;jW;/K2y<late(l cunijunips. An alxaiive company, i.i'., an unregistered association of Allntuos nf inrtivuluals engaged in tlie lonnatiDU or a company, ami not i„ ,,i,n,.(ive cuiu- liaiinj (i) See .) Nkol's Cfx,, 2!) L'li. L). 421. (•<(■■<,; Tn/idl and J'oiisniiliii's niisc, i'.t 'oiupare Sidneij's case, 1.3 Ei(. 228, Cli. D. 421. »here 11 iiursna who siuued a loni- (j;) See infra, class B. wny's iiuiuoraudum of as-oci^itiou («) See under liciid 4. was put on the list iil'trr a deluv of 764 WINDING VV V.y THE COUHT. Liiiliility of .subsoriliers d coiitiibntc. ^^ Bk.;iV. Clmp. ]. succeeding in their attempts to form it, might hewoiuulmi — under the acts of 1818 and 1849 (~). But perscm.s oiii^'aped in the formation of a comi)any are nciither pai'tners nor (juim- l)artners, nor is each the agent of the others for doing tlin; Avhich mny he necessary to start the comi)any {(t). It tblliw- from this, that if an ahortive uni-cgistered company is bein. ■wound up, a ])erson who lias done iKtthing more thiui act a> a promoter, without rendering himself liahle with tlio other promoters, to third parties, or to those others in resi)i'Cti! liiihilities incurred hy them, is not a contrihutoiy. It was at one time thought that there was an ofniita'jlf, a- distinguished from a legal obligation on the part of ever promoter of a company towards the other promoters, to con- tribute with them towards the discharge of del)ts iuciimi by them in the jirosecution of their common desit.'n; but i; has long been settled that a promoter, or subscriber, to ai: abortive company is not liable to contribute to the liquidatk of debts or expenses which have been incurred witliQut hi- authority, or which he has not agreed to share. lliilt><. therefore, a person has agreed to share, or has rendered liiin- self directly liable with others to pay, the debts incunfd ii: the attempt to form an abortive company, he will not k a contributory on the winding up of that company (J>). UpfiH's case. 'I'he non-liability of a mere promoter of a compiUiy l< mad(! a contributory, unless he has done something besidt- act with others in getting iij^ >^ company, was established cmii- paratively early ; but it was nevertheless decided l»y the IIoi;- of Lords, in UpjUVs case (c), that if a promoter of a ('(impniiv agreed to accept shares in the company when formed, lie oudit to contribute to the expenses incurred in attempting to form it. The imi)ossibility, however, of upholding tliis decision was felt as soon as attention Avas drawn to it ; and althoiigii it was followed for a time, it wa.s repudiated b}' the House of Lii'is (-.) .bifcp. (123. ((t) See Partn. p. iW \h) See Norris v. Cottle, 2 H. L. C. 647, afHrming Ex parte Cottle, 2 Mac. & G. 185 ; Briyht v. Hut ton, 3 H. L. C. 341 ; Hutton v. Thoiap- snn, ami N'orris v. Coojier, ib. '.'il. Soe, too, Hamilton v. Smith, 7 ^\ R. 173. (o) Hutton V. Uj»Ul, 2 II. 1.. '' (574. CONTRIIIUTORIES. — ALLOTTEES OF SHARKS. 766 itst'lt' in Br'iqht v. llutton (d), which hns ever since been tlic Bk. IV. Chap. l. Sect. 10. luttoii V. Uptill, 2 H. I.. '1 Ifiidiiii,' iiuthoi'ity upon the present subject. Miiiiv cases had been (lcci(U>d on the authority of Upjllln case, and they, of course, full with it. With reference, there- fore, to tlie subject now under discussion, it is necessary to separate the cases decided before, from those decided after the reversal of UpjilVs catic. But it is to be observed, tliat cases (iecided before such reversal, and in which promoters or sulj- scribers were held not to be contributories, are still entitled to \vei"lit. It is only tliose which decided such persons /" he contributories that must now be disregarded. The following cases must be considered as overruled Cases falling idirectly or indirectly) by Brinht v. llutton, 3 H. L. C. 341: — case. Upfilh ccm, 2 H. L. C. 674. Beslqi, Ex parte, 2 Mac. & G. 176. Thi.s case occurs tlivec times in tlie books. It was first decided by Vice-C'liancellor Kiiii,'ht Bruce {Ik.ikffs ca.se, 3 De G. & S. 224), who held timt Besley was nut a ciintributory. Tliis decision was appealed against, and was re- versed by Lord Cottenhani (2 Mac. & G. 17()). But tlie appeal was relieard by Lord Truro, who aflirniod the decision of the Vicu- Cliaiicellor (3 Mac. & G. 287). Tlie case, as reported in 3 De G. & t:i. -I-Zi, and 3 Mac. & G. 287, is still law. Blight's case, 1 Sim. N. S. 602. This was reversed on appeal (3 H. L. C. 341). Ih-itiain, Ex parte, 1 Sim. N. S. 281, decided reluctantly on the autho- rity of Upjill's case. Hohh case, 3 De (i. & S. 241, decided on the authority of Ex parte Bcsky, 2 Mac. & G. 176. MurkweU's ease, 5 De G. & S. 528, decided on the authority of UpJilVs case, but after the decision of Bright v. Hutton. It cannot, however, be considered law. See E.c parte Capper, 1 Sim. N. S. 178, and Carrick's case, I Sim. N. S. 505. Morrison, Ex parte, 15 Jur. 346, and 20 L. J. Ch. 296, decided on the authority of Upjill's cas", and in etfect overruled hy Sharp and James's case, 1 De G. M. & Ci. 565. Xicholaifs case, 15 Jur. 420, ilecided on tlie authority of U/iJill's ctisr. iiiihcll, Ej: parte, 1 Sim. N. S. 187, decided ri luctantly on the authority of Upjill's ease. Sttulky, Ex parte, 14 Jur. 53!). Tbts case is very shortly reported, hut it seems inconsistent with such cases as Hall's (3 De G. & S. -14), Stock's (22 L. J. Ch. 218) and Carrick's (1 Sim. N. S. 505). Upon the principles which are now settled to bo applicable Result of . authorities. (rf) 3 H. L. C. 341. ^■aJ- «■ Tfifi WINDING UP BY THE COURT. lik. TV. chny. ^. to the c'ftse of nn abortive unregistered company, it — taken : mav Siibwi'ilicrH to tibortivu coiii- [lanii's not cim- tributurics. rnivisiimal cijiuiiiittuu mull not coiitribii- torit'.s. A fortiori, subscribers who liave not 1. That a mere subscriber to or aUottee of scri]) in im abortive company is not, by virtue of his subscii|ifioii, ci acceptance of scrip, a contributory on the winding up of tin company, whether he has paid liis deposit (f) or not( /), 2. That su(di a persfin does not become n contriluitorv l,v being one of the committee from wliich the scheme eniunates and by whicli it is encouriiged ; or, in other words, bv beiii" what is commonly called a promoter of tlie ci>iii|ianv(-/i. This holds, even although he nuiy have subscribed Sdiuetliiui.' towards the expenses, if he did so under the erroni'ous stin- position that he was liable for them (h), or merely tor tli,. sake of peace (i) ; so, although he may have (•(inciuTfd in the appointment of persons, and have incurred liabilitv liv . i doing, if all liability on that score is at nn end (li) ; so, altlioidi he may have been party to the appointment of a infiuii^ini; committer, by which debts still unpaid have been incurnd (/) : so, although his name may have been put on that com- mittee, if he never assented to join it, and he never iictiil on it (/»). 3. That, (I fortwri, subscribers to and promoters of an abortive company are not, as such, liable to be iinide con- (<;) As in Maiiil.ihui and Field'n case, 17 Sim. 157 ; A'x imrte Bcard- f'hdu; 1 Drew. 226. See, too. Ex parte Walstuh, 20 L. J. Cli. 58, where the dejjosit liad been ]iaid and recovered back. (/) As in Ilutton v. Tliompsov, and Norris v. Voojicr, 3 H. L. C. KJl ; J-Jx parte Capper, 1 Sim. N. S. 178 ; Carrick's ca»; ib. 505 ; Ex parte Ilirschel, 15 .Tur. 942. See, too, the cases in the next seven notes. (g) Jiriyht v. Huttvn, 3 H. L. C. 341, reversing 7jn'(//(<'s c«st', 1 Sim. N. S. 602 ; Norris v. Cottle, 2 H. L. 0. 647, alKrming Ex parte Cottle, 2 Mac. & G. 185. See, too, Mait- land's case, 3 Gift". 28 ; Ex parte Huberts, 2 Mac. & G. 1U2, and 14 .lur. 539 ; Ex parte Ulnrh; 20 L. .1. Cii. 14. {h) Ex parte Bedeij, 3 Mac. & 1 1. 287, affirinins Besktfs caxe, 3 De (I & S. 224 ; Hall's case, 3 Do G. &.S. 214. (i) Ex parte Stocks, ii L. J. Cli. 218 ; Hairs case, 3 De G. & S. 214 : Carrick's case, 1 Sim. N. S. M.'i: Ex parte Roberts, I Drew. 204 : Tanner's case, 5 De G. & S. 182. (/.;) Carrick's case, 1 Sim. N. S. 505 ; Ex parte Hiijht, 1 Drew 4S."). (0 Tanner's case, 5 De G. & .S. 18i. (»i) Ex parte Roberts, 1 Drew, 2i'4. St>e, too. Ex parte Oshorne, \h Jui: 72. Compare Spottiswonde's case, ti De G. M. & G. 345. CONTIllnUTOniES. — nEPUDIATION. 707 Dmimiiy, it mav 1„ CO (if scrip in ui, is sul)S('i'ii»tioii, i.r wiiidinf^ u]) of tin- ) or not ( /'). '. a contriliutiiry l,v scheme eiimnuti's, ?i' words, Ity beiiii.' tlie coiniiiinvl-/). jscribed sninetliiu'.' the erroneous sup- or moi'ely for the Imve eoticurved in rred liability Ity ••« nd (k) ; so, idtliou;:li ent of a iniiiii\!,'iii:i } been incurred (I) : put on that com- nd ho never aotcil I promoters of nii ! to be made con- c }>itrte C7ru-Av, 20 L..I, ■te Bcslrij, 3 Mac. &i;. Brdei/x at«',:i Deti. ill's caso, 3 DoG. &S. It" Slorh, -22 L. J, Cli, ■((*', 3 Dc (i. & S. 2U : 1 Sim. N. S. r)0.-i: h>:,-t^, 1 Drew. 204: rt Ue (1 & S. 1S2. j case, 1 Sim. N. ^. ' Huiht, 1 Drew 4S.). .sf<(»r,5De(J.&S. ISi, te Roberts, 1 Drew. 2i'4. jntrte Oshornn, 15 Jur. e Spoil iswonde's erne, tl 1. 345. frilmtories on its windint' up, if tliov never have, in fact, ^^- 'V. chup. 1. '" . Soot. 1(1. (iitered into a binding a^'reement to take shares. Kven before Vp,fill'if <'"«'' was reversed, this proposition was well siy.mH. ,.,tablislied (/(). 1. That if persons are actively engapjcd in forming a com- iiiiiiv, if they act as a body, and as a body incur debts for whiili they are all liable, if not directly, at all events as be- tween each other, then they f(n'in a company or association which may be wound up, and on its winding up they will be cunti'ibutories, whether they have actually subscribed for shares oniot(o). .5. That persons who, without being actively engaged in firming a company, agrc(3 not only to take shares in it, but iiNii to share the expenses incurred in forming the company, ■.\K, on its winding up, liable to be made contributories ( /))• The writer is not aware of any case having arisen under the .Vpiilu-iti..!! ui (iimpanies act, 1862, and in which the above rules have been n'oduru t^um-' iiih-erted to. The reason of this is that there is no recent i'"""-''*- instance of an order to wind np an unregistered association of |iromotevs of a company. At the same time, such an associa- titin, at least if consisting of less that twenty persons, might be legally formed and be wound up (q) ; and if such an event jluiuld occur, the principles and rules followed under the older acts would apply ; subject, however, to this qualification, that liability to creditors is now a ground for being put on the list, which was not the case under the older acts (/•). 4. On the repiuliatioii of sharen after the comntciiccmeiit of the u-indincf up. A person who is sought to be made a contributory in respect of shares which he has agreed to take or which may be regis- (ii) See Matheiv's case, 3 De G. & S. 234; VarmichaeVs case, 17 Sim. tf)3 ; and Oitiiins's case, 1 Sim. N. S. 3!)4. (o) Norburifs case, 5 De G. & •Siu. 423 ; ,S7(«/7) and James' case, 1 De G. il. & G. 50.') ; Pearsuiis hmitors' case, 3 De G. M. & G. -41 ; l^imttisicoode avd Amsinck's case, a De G. M. & G. 345. Sei-, al.so, BoivcH and Martin's case, 20 L. .1. Cli. H5(), and Ex ^mrtc Apps, 18 L. .J. Ch. 40!). {p) See the la.st note. {q) See Companies act, lbG2, §§4 and 199. (»•) lb., § 20t). IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 5" IM III 2.2 ij 12.0 18 } 1.25 1.4 1.6 < 6" — ► <^ /} /a o c-l '/ Photographic Sciences Corporation 4^ ^ :\ \ % .V ^ o ^^ ^ ^^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (7J6) 872-4503 4. ^ 768 WINDING UP BY THE COURT. il / ■Pl Bk. IV. Chap. 1. tered in his name, may be entitled to repudiate them on various grounds. But it by no means follows, that because he miniit have repudiated them before the winding up tommenced he can repudiate them afterwards. The leading principles applicable to this subject appear to be as follows : 1. Shares placed in a person's name pursuant to an alleced agreement, which is in truth no agreement, may be repudiated by him after the winding up has commenced, unless he has chosen to accept them on the terms on which they have been placed in his name (s). 2. Shares which the company has no power to issue, can be repudiated after the winding up has commenced (<). 3. Shares placed in his name under an agreement which is oidable, e.(f., on the ground of fraud (u), or the non-perfoim- Ace of a condition {v), cannot be repudiated after the winding v.p has commenced. 4. Shares which a person has agreed to take, but which have not been placed in his name, and in respect of which he is not a shareholder at the commencement of the winding up, may be repudiated by him if he can show that for any reason the agiee- ment is not binding on him(H'). a) Repudiation on the ground of no ngreenievf. Ciiscs ill wiiioh By way of contrast with the decisions noticed under the neuTicl-'bcomuo last head, those cases will now be adverted to, in which it "elf bv"a ree-'"' ^^^^ ^^^^ held, that a persou is not a contributory, he uot iiieiit to Income having become a shareholder or agi'eed to become one, and a sliareliolder. . , • t i i i i • there bemg no other grounds on which to hold lum a con- tributory. Sureties, &c. Persons who are merely sureties to a company for the nnv- ment of calls by shareholders are not contributories (a).* It will be seen hereafter that ccstuis que trvstent are not con- tributories (y). A person who has never agreed to take siiari> and has never acted or been treated as a shareholder, but wlw AJmisHionB. (s) See infra, uniler head a). (e) See infra, under head b). (u) See infra, under heud c). («) See infra, under head d). (w) See iiifra, under liead d). (x) Harrison's case, (j C'h. M Lee and Moor's case, 5 Ecj. 3G8. (y) See infra, liead 9. CONTRIBUTOHIBS.— NO AOBEEMENT. 769 te them on various because he niinht ip tommenct'il, he eadini:; principles lows : (uant to an allegeil may be veijudiated ced, unless he has ich they have been (ver to issue, can be need (0- agreement which is t)v the non-pcri'uvm- ed after the winding take, but which have 3t of which he is not ! winding up, may be any reason the agree- noticed imder the •ted to, in whidi it lontributory, he not to become one, and to hohl him a con- b\ mistake has admitted, even under seal, that he is a share- Bk. IV. Chap. l. ., Sect. 10. lii.lder is not a contributory (z). A person who agi'ees to place shares does not agree to take tli,ra himself and he is not a contributory (a). V person who is entered on the register of shareholders Effect of insing ... ., Ill ou register. without due authority is not a contnbutory, unless he has pre- fhiiKd himself from denying the propriety of the entry (/>). Tliis he may do by express ratification or by acting as a share- Imkler (f). Even where an applicant for shares authorised them to be registered in his name, and executed a blank tnmsfer of them before allotment, the subsequent entry of his mime in the register was held not to aft'ect him, as he had no nutiee of such entry or of the allotment (d). Witli respect to applicants for shares, the following pro- Applicants for noqtions follow, from the principles explained in Bk. I. c. 1, J 1, where the requisites of an agreement to take shares were \ rtimiined (c). 1. If shares have been applied for and the deposit on them 1- N" *"o*"- . , . , ment. |lii>s been paid, and a receipt has been given lor the money, the shares have never been allotted, the applicart will I not be a contnbutory, although the application may have btau, [in form, an agreement by him to accept the shares applied I for or any less number which might be allotted (/"). If indeed I there is some other evidence clearly showing that the applica- Ition had been accepted, the fact that there was no formal |a!liitment will be immaterial (fi). '2. If an application for shares is followed by allotment and -■ No notice of . . ' allotment. lentry on the register, but the allottee is not informed of these Ifacts, he will not, without more, be a contributory (/*). But |;ompany for the m- Intributories [.iV •' inmtciit are not coii- ],greed to take slmre> Shareholder, but who infra, lUKk-r head rf). soil's am, C i'h. m [oi's case, 5 Eq. 308. |»i/ra, head 9. .) Empson'it cane, 9 Eq. 597. in. also, Ihiviea'n cuse, 4 De Ct. F. & "8. (i) Oorrissm's case, 8 Ch. 507. iHlkTwise if lie underwrites so many tire*, atife, p. 761. ''ISee Hallmarli's case, 9 Cli. p29 ; t^fimernlles case, 6 Ch. 26(5 ; ■rmn's case, 8 Cli. 507 ; jrynne's il). 1002 ; Beck's case, 9 Oh. ; Pellatt'n case, 2 Ch. 527 ; ^'i case, 5 E(i. 428, and 3 Ch. I..C. 592 ; WarcCs case, 10 Eq. 669. (i) See the cases on the effect of varying from the prospectus, I'n/ra, p. 771. (d) IVard's case, 10 Eq. 669. (e) Ante, p. \3 et seq. (/) Best's case, 2 De G. J. & Cmu. 630. {(/) See Adam's case, 13 Eq. 474 ; Bird's case, 4 De G. J. & «ni. 200. (/i) Ounn's case, 3 Ch. 40 ; IFurd's case, 10 Eq. 659, and others cited 3 D 770 WINDING UP BY THE COURT. .! f m m '« g' ' ft -i-i^y \< Bk. IV. Chap. 1. Sect. 10. 3. Application for shareH revoked. 4. Allotment too late. 5. Applicant and allottee ditTcrcnt persons. ]tIallorie'u case. 6. Terms of offer not a.' - sented to. 7. No accept- ance by proper authority. direct formal notice is not necessary ; and notice mar he inferred from conduct, and may even be wholly dispenvil with (t). 8. If an application for shares has been revoked befort it i has been accepted, the applicant will not be a contributon, | although shares may afterwards be allotted to him [k). But re- vocation after notice of allotment has been posted istoolate((). 4. If an application for shares is not accepted witliin j I reasonable time, a subsequent acceptance will not render the appli<^ant a conti'ibutory unless he has assented to it (m) ; and this applies as well to directors and to persons who take an active part in getting up the company as t) j others (n). 5. If a person applies for shares himself and they are i allotted to some one else, there is no concluded agreement, and he is not a contributory. Thus, where reserved shares! were offered to old shareholders and their executors, and a person who was a relative of a deceased shareholder and acted | for his executors applied for some reserved shares, and they were allotted to the executors, there being no power to allot J them to the applicant himself, it was held that he was not a| contributory (o). 6. If shares are applied for, or offered, on terras which iir.' never assented to by both parties to the negotiation, the persouj applying for them, or to whom they are offered, will not ben contributory in respect to them ip). 7. Moreover, the conditions must be accepted by those pei-j ante, p. 14 ; Bloxam's ease, 4 De G. J. & Sill, 447, contra, turned on its own special circumstances. See ante, p. 15. (t) See Adam's ease, 13 Eq. 474, and the cases collected ante, p. 14, to which add Ricliards v. Home Ass. Assoc, L. R. 6 C. P, 591. See, also, tlie cases relating to directors, infra, head 6, p. 790. {k) Ritsd's case, 4 Ch. D. 774, the case of a director ; Gledhill's case, 3 De G. F. & J. 713, and others of that clu8S noticed ante, pp. 13, 14. (0 Harris's case, 7 Ch. 587 ; fVall's case, 15 Eq. 18, ante, p. 14. (m) Matliew's case, 3 Dc 0. & Sni.l 234, and otliers of that class notiHJ| ante, p. 15. (n) Ritsu's case, 4 Ch. D. "4, Carmichael's case, 17 >?ini. 163. (o) Mallorie's case, 2 Ch. 181. (p) See Jackson v. Tupjtiand, R. 4 H. L, 3ll5, and the other ca.-d collected ante, p. 16. See, alsi Daviei case, 4 De G. F. & J. i^ which was a ciise of fraud as will > of no contract ; Empsonn cm, 9 ^ 597 ; compare Gustard's case, 8 E'J 438. IT. CONTRIBUTORIBS. — NO AORBBMBNT. 771 ind notice may W be wholly dispeiisnl ] in revoked before it l t be a c()ntril)utorv, | tolum(fe). But re- posted is too late ([). t accepted witliiii 1 1 ice will not render E^ has assented to itors and to persons the company as U mself and they are oncluded agreement, here reserved shares! eir executors, and « hareholder and iictKlj ved shares, and they ig no power to allotj d that he was not a I , on terras which ar<' gotiation, the person j )ffered, will not be xt ;cc"pted by those pei-| 15 Eq. 18, aH<«, p. 14. \vew's case, 3 Dt G. & ."^m-l lers of that ckss noticfil| \s case, 4 Cli. D- "^i J case, 17 l>iiu. 103. rie's case, 2 Cli. IHl. Jackson v. I'univaitd, U 1}(.I5, and the other la.-rf' Kite, p. 1«- See, als. \ 4 De G. F. & J- " L ciise of fraud as well < Let; KmpsonscM,^^ Ire Gustard's case, 8 M sons who are competent to bind the company by assenting to ^^- \^- '''»«i'- 1- tbem, or the allottee will not be a contributory {q). The -- -- — jipplication of this principle to cases in which shares have been iswed on terms which are ultra vires will be noticed hereafter (see subheads h and d, pp. 774 and 778). A difficult class of cases arises where an application for Variations shares is followed by an allotment, but there has been in the objectx of the interval some change in the nature or objects of the company. f°J^ej'iina « If this change is material the allotment is no acceptance of projected. the application, and the allottee can, at his option, accept or repudiate the shares (r). If, knowing the facts, he does not repudiate them before the commencement of the winding up, the inference will be that he has in fact accepted them, and he will be a contributoiy. If, on the other hand, he repudiates them in time, he is not a contributory («). His option to accept or repudiate does not, however, necessarily continue nntil he knows the facts; it must be t-ercised, if at all, as Mion as, with reasonable diligence, he might have known them(0- From this it follows that, as regards companies formed and registered under the Companies act, 1862, inas- much as every person can obtain a copy of a company's memorandum of association, an applicant for shares in a pro- Jicted company who neglects to inform himself in reasonable time after its formation of its nature and objects as formed, and who keeps shares which have been allotted to him until the company is wound up, will not escape from being a con- tributory by provijg that the company as formed is materially ilifferent from that which he agreed to join. The following are instances (under the older Winding-up ai'ts) of persons who were held not to be contributories by reiibon of a change in the nature and objects of the company. (fi Homris case, 1 Ch. 661, and I link, p. 17. (r) See on this subject generally 1 3«(. p. 19 et seq. The non issue of tkt whole number of shares proaiiaed to be issued is not suHicient. Lyon's ««, 35 Beav. 646 ; Sharpiis' ccuie, 3 Ug. & S. 49 ; Mansfield's case, ib. 58, and 2 M. & G. 57. (s) Smith's ease, 2 Ch. 604, ami L. R. 4 H. L. 64, where the repu- diation was before the winding up. (0 See Peeh case, 2 Ch. 674 ; Lawrence's case, 2 Ch. 412 ; Wilkin- son's case, 2 Ch. 536. 3 D 2 i I 772 Bk. IV. Chap. 1. Sect. 10. Cox'h case and Navlor's case. Qoldstnid's CISC. Meyer's case. Otiicr cases. WINDING UP BY THE COURT. Cox's case and Naylor's case (u) ; persons who had taken shares in a i in pany, the liability of the members of which was limited, were lield n .t t be contributories in a company, the liability of 'A\e members of wliiih wa^ imlimitud. The constitution of the company had been fraudulently alierni and they had not acquiesced in the alteration. Ooldsmkl's case (u:). GoUis^nid took, and paid for shares in a iiinjic;^ steam-packet company. The directors afterwards dett;rmined to alianijD I the scheme, and to join a company already existing ; and at a "emral meeting of tiie shareholdei-s of the projected company, it was rt>iplvhi unanimously that the new scheme should be substituted for tlie old uut, and that the capital orig'nally contemplated should be doubled. At thi* meeting GoUlsmid was present. He did not approve of the propwl departure from the original .scheme, but he did not actively op])o.*e it : h. I in fact, remained pa-ssive, and never did anything more ; and two vtM>l after the meeting referreil to, his shares were cancelled. He wa.s held not | to be a contrilmtory. Meyer's case (y) was the case of another allottee of shares in the simel projected company. He originally had ten shares : he ilid not accede tol the change in the scheme ; but ultimately he took one share in the neirl company, and nine out of the f". shares which he originally agreed tol take were cancelled. He was hp not a contributory in respect of tht^l nine shares. Bye's case (.-;), Blackburn's case, as decided by V.-C. Kindersley (a), ,1 case (6), Steivart's case (c), ff^ebster's case (rf), Nichols case (c), and i'ai//J case (/), hU of which have been already referred to, further illustratt ihj same principle, althougii in applying them to winding-up ca.«es it necessary to bear in mind that all of them related to companies whici were not in course of liquidation. k [§' Delay in repu- diation. Upon the subject of delay in repudiation, it is important td distinguish those cases in which there has been repudintioi before any winding up has commenced, from those in whicl tliere has been no repudiation until after that time. Where | person having a right to repudiate shares has duly repudiatej them before the commencement of the winding up, he will iid (w) 4 K. & J, 308 and 314, cited in Richmond's case. Compare Shef- Jicld's case, Johns. 451. (x) 16 Beav. 262. ly) 16 Bwiv. 3Ki. (s) 3 Jur. N. S. 460, ante, p. 20. (a) 3 Drew. 409, reversed on ad- ditional evidence, 8 De G. M. & G. 177. See ante, p. 25. (ft) 2 De G. J. & Sm. 544, affirmed L. R. 3 H. L. 343, under the name of Dmones v. Ship. See antt, j' N.B.— In this case, Ship api for shares in one company, and ii^ allotted shares in another compi there having been two nieiiioroi of association. (f) 1 Ch. 574, ante, p. 26. ((/) 2Eq. 741,aJl^•, p26. (e) W. N. 1867, 77, and «! p. 26. (/) 3Ch. 692, and naff, p. ?■ ' KT. CONTRIBUTORIES. — NO AOnEEMENT. 773 I taken shares in a oim- imited, were lield ivt ',■ i members (if wliith n- )een fraudulently altenil, for shares in a iirojtcttil | i determined to alian'ion isting ; and at a general ompany, it was rt.-ulvMl )8tituted for tlie old une, | lid be doubled. At this ipprove of the propyl jt actively oppose it ; kt, ng more ; and two year* I icelled. He was held cot I iee of shares in the samel res : he did not acceile til took one share in the ml ;h he originally agreed tJ jutory in respect of tht^l ^-C. Kindersley (a), Sh\fi ichol's case (e), and L'ail/J d to, further illustrate th^ ;o winding-up case? it dated to companies «!r. Ition, it is important td has been repiuliiitioi I, from those in wbiol r that time. AVherel s has duly repudiate ■inding up, he will nij [.< V. Ship. See mU, p. this case, Ship applj in one company, and ^'j khares in another companj l-ing been two nieniorai Ition. \\\. 574, ank, p 26. pq. 741,aH.' liy contrasted with them. There a person applied for shares on the day the company was registered ; the applica- tion was made on the faith of a prospectus previously issued, ami from which the memorandum of association materially depiuted ; shares were allotted ; the allottee paid the allot- ment money and a call pursuant to the prospectus ; he was redstered as a shareholder, and received a dividend ; after the cumpany had been ordered to be wound up he repudiated his shares, deposing that he had naver seen the memorandum of association, and did not know of its departure from the pro- s|iectus. It was held, however, that as he had had ample time to ascertain the real facts, he was too late, and was a con- tributorj'. By reason of the stringency of § 18 of the Companies act» Alteration of the 1862, a subscriber oi the memorandum oi association is a con- ii,j Hiticlcs of tribtitory, although the memorandum as registered may have '^'«''^"''''°"- been somewhat altered since he signed it {I). An alteration in the articles of associatiou, not aftecting the objects of the com- pany, will not enable the allottee to escape from being a con- iiibiitoiy, although such alteration be made after an applica- tion for shares, and before allotment («<)• ■/) See tiiH(!s case, 8 Ch. 1002 ; Beck's h", !) Ch. 392, where there wa« I wy little delay. (t) 2 Ch. 674. See, also, Perrett's |«i#. l.i Eq. 250; WiMmmi's case, li. r.36 ; Peel's case, 2 Ch. G74 ; Hare's case, 4 Ch. 503, where the contributory renuiined on the re- gi.^ler. See I'ers.-ie's rase, Ir. Rep. (i Eip 298, where tliere had been grot*s fraud, and an action for calls before the litpiidation had failed, but the shareholder was retained on the list. Quii're this case. {I) See infra, under head 7, p. 797. (/n) See Lyoii's case,'ab Beav. 646. HH Hl^Hj HH ^^^^^^^^^H ■ :<;' ^^^^I^^^^H 1 .' ^^^^^^^^^H 'l ^^^^^^^H ,i) ^^^^H ■'1. H i ^^H ^^^^^^H 1 : k ■ ^^^^^^^^^^1 it i' '■h iPBBffnBB J' ' pf 1 1 r fe^' .:: I ■ »5l • 774 Bk. IV. Chap. 1. Seol. 10. Itepudiation of illegally iHsned nhitrcii. Illegiil suli- (liviKion of HhareH. St4iCC Hiul Worth's case. AmalgnmntidU of coniimnii's, WINbINO UP BY TBI COURT. ft) Repudiation of illegally isnted tiharet. With respect to the right to repudiate shares issued impro- perly* a distinction must be made between Rhares which the oompany has no power to issue, and shares which the compaw has power to issue, although not in the manner in which, or upon the terms upon which, they have been issued. Tte j holders of shares which the company have no power to issik, in truth, hold nothing at all, and are not contributories. TIk j only possible ground for holding them to be contrihutonts would be by applying to them the doctrines by which a person who holds himself out as a partner incurs liabilities as if he were a partner (n). These doctrines might suffice to render an ostensible member of an unincorporated in.solvent company liable as a contributory in it ; but they have little, if iim, bearing on the statutory liability of persons to be made con- tributories in incorporated companies in respect of shurh which do not exist in point of law (o). Thus where shares had been illegally subdivided, the holders of them were held not to be contributories in respect of thf reduced parts (p) : although where such parts could 1* identified with the original shares which they representtil, the holders of those parts wei*e held to be contributories m respect of the original shares which the parts made up ((/). A much more difficult case is Stace and Worth's rnseURT. CONTRIBUTORIBS. — ILLEGAL SHARB3. 775 d iiharei. shares issued impro.] een shares which the es which the companj 3 manner in which, or ! o been issued. Tte ive no power to iss«r, contributories. Hit to be contributories les by which a person tu's liabilities as if he ight suffice to render ed insolvent company y have little, if am, ons to be made con- in respect of shart< ubdivided, the holders ries in respect of the eh parts could lie ch they representtii, be contributories m arts made up ((/). rnd Worth's emu. company B., nnder mmation wholly void. SeireU's case, :5 Ch. ISl. fi82. See, also, Doum' 1. 540 ; Ahmt's ca». 9 ahnster's case, 7 % i'X •e decided on the am Wynne's rase, 8 CL Beck's case, 9 Ch. 392, what Bimilar cases, but ed on the ground t!i«t o bindinj,' agreement in , and nothing to prevint iation. 'iirsuant, however, to the scheme for amal(jamation, a member Rk 'V- chap. i. company A. exchanged his shares in it for fully paid-up - - res in company B., which, however, tliat company had no ower to issue : he was put on the register of company 13. I respect of the shares taken by him, and he became a director If company B., and acted as such. The shares, if they had leeii legally issued, could not have been treated as fully paid Inbv reason of 30 &, 31 Vict. c. 131, § 25. It was, neverthe- held that he was not a contributory in company B., the Issue of the shares to him being void, and all his acts being leferable to these shares, and to the arrangement between the »o companies and nothing else (s). But the mere circumstance that a person has become a hareliolder pursuant to a sclieme which is ultra I'ireif will Lot relieve him from liability as a contributory if the shares jrliiih ho 1ms taken can be considered as legally existing. Thus in Challia's case {t) and Hare's case («), which were in ohiUlia's c»h... iiHiiy respects similar to Stace and Worth's case, the member ""c'^ '■»«« pho had exchanged his shares was held to be a contributory I the purchasing (company ; he having in effect entered inio a listinct agreement with that company to take shares in it, and hut agreement being valid, although resulting from an invalid L'leement for an amalgamation (.t). In Hare's case there was distinct and separate application for shares which was duly cepted; and in Challis's case, certificates of share in the lurchasing company had been sent to and accepted ty the cntributory, and he had attended meetings of the sh.;re- idlders. The Court of Appeal held the agreement with fm was not void but was capable of ratification. The holder of shares existing in point of law, but held upon ')See the importance of this, nil. 546. iO 6 Ch. 266. And see Millers \! of contributories, there being no other method by wliiih tli, creditors can have recourse to him. This is now coinpltui, Oakcs' case and settled by the cases which arose in winding up Oieri n.i, (Jurney, and Company. IL was there held, that where tL prospectus of a company formed and legistered under tL- Companies act, 1862, had been issued, and such prospectus was expressed in terms calculated to deceive those who read it with respect to the true position of the company, the issuing of the prospectus was in point of law a fraud on the piirtottlit company, and that such fraud entitled persons taking sluuvs directly from the company on the faith of such prospectus h repudiate their shax-es ; but that they were, nevertheless, liallc j to be placed on the list of contributories of the cum}miiy, it being proved that the creditors of the company would othn- wise remain unpaid («). This important decision has been followed in other cases, tu which it is unnecessary to refer in detail {b). Moreover it lnu I been extended to cases of solvent comi)anies on the giouuJ tliat a winding-up order entirely alters the position of tlit | shareholders (c). (y) Infra, head d), p. 778, and the table on p. 736. Jv.i: jmrte Daniell, 1 De G. t& J. 372, and Robinson's Executors' case, 2 De G. M. & G. 517, illustrate the position of directors who improperly appropriate shares which the company can repudiate. (2) Ante, p. 283. (o) Ex parte (Jakes nud Peek, 3 Eij. 576, affirm^'. L. It. 2 H. L. 325, under the name ol' Oakes v. Tur- quaiid. Oakes took liis ^iu^t^| directly i'mni tlic ripiiiiiaiiy. Piti bought his liom a previous Jkire- 1 holder. Both were put on the Ik {!)) Sec A ah ley's (use; Kenl\:Fr'i- hold Land, it'c, Co., both citwlWiji ; | atone v. City and County Bankf'ii P. D. 282 ; Tennent v. t'dyoj&W Bank, 4 A pp. Ca. 615. (c) Buryess's case, 15 Cli. D. iC{ see ante, p. 765. IBT. CONTlUnUTOniES. — FRAUD. 777 be a contribntiirv in (/y). fraud. mot be I'l'lit'd uikih «> whether liy uctiuii i.| such fraud does lut puny registered iindti . being put ou the li^t method by whieli tin ,'his is now coinpltulv winding up Ociimm', liehl, that where tli, registered under thir and such pr(jsi)ertus ceive those who read it company, the issuiui! raud on the pnrt oltlit i persons taking sliiuvs of such prospectus tn ei'e, nevertheless, liaUt ] ies of the couipany, it company wouUi otlm- ] lowed in other ciises, t. [\{b). Moreover it k ipanies on the grouiiiil I's the position ol' tlit Oaki's took \\h 4ir« t'roui tlu- coiniiany. P>ti Ihirt IViiDi II previous ^t* | Both were put on the U liAihareiiolder was held a contributory (i). The principles on which Oakea v. Tiirqiiand and Biirgcits's Other voidat.lo contraets. ((ISC proceed are by no means confined to contracts which are voidable on the ground of fraud. They extend to all void- able contracts entered into by persons who are sui Juris : but they do not extend to infants nor to contracts which are void as distinguished from voidable (./). Their application to con- ditional contracts and to shares which have been accepted will be noticed hereafter (A;). Further, the same principles apply to all companies wound Oonipmiies not ii|i under the Companies act, 1862, whether formed or regis- the Act of isti^. tiled under it or not : for the winding up machinery of that act cannot be applied consistently with any other principles (l). ((/) This foUows Ironi the coses dtol in the next two notes. (') Wriijht'ti case, 7 Oh. 55, re- vii>ing 12 E([. 331, but qmere Mhdiier the \".-C. Wickens was not right. ;/) Reese River Co. v. Smith, L. R. 4 H. L. 64, alHrming Smith's case, i Ch. 604, where the jjroceedings wiiv stayed by the winding up. ((/' McXiell's case, 10 E(£. 503 ; Mc's owe, 4 Ch. 497 ; fke's case, 5 &|. 118. See ne.\t note but one. But in I'ersses case, Ir. Rep. 6 Eq. •>, thi' name was retained on the li't, although an action brought Wlurc the wmding up for calls had failed. Scd qucere. {h) Ashley's case, 9 Etj. 263 ; Scholey v. Central Rail Co. of Vnte- zuela, ib. 266, note. See, also. The Scottish Petroleum Co., 23 Ch. D. 413. (t) Kent V. Freehold Land and lirickmaking Co., 3 Ch. 493, re- vei-sing S. C. 4 Eq. 588. It is very difficult to reconcile this case with those cited in the last note but one. It was not apparently rel'erred to in them, and nuctre whether Smith's case can be properly extended. (j) See the last head h), p. 774. (A) See pp. 778 and 781. (l) See the judgment in Bimjess's ctwe, 15 Ch. D. 607. zi'.-7.r ill m 'I ■ill "rs |,; \\l 778 WINDINQ UP BY THB COUUT. Bk. IV. Chap. I Sect. 10. The older nuthoritieH on this subject will be found coUectcii on pp. 79 et neq., but they cannot be relied upon with refereuc*- to the question of contributory or non-contributory. d) Hepudiation on the i/round of non-per/ormanctt of cimdilioru. Iteimiliation on The position of a i)erson who bus agreed to take shuri's iipoi, the yround of .... ,, « i ii i/.. , iion-performanoc Special Conditions IS generally one of eonsiderabie ditliculty. If ot c(.n( itionB. j^j^^, conditions have not been assented to by both parties to the agreement (m), or if the conditions, having been assented to in point of fact, are ultra ritrn, so that the company could not assent to thein in point of law (n), Ihere is in truth no con- cluded contract. This class of cases has been alreudv examined. For the present, it will be assumed that there isii concluded agreement, but an agreement upon special con(Ution>, Under such circumstances, the points to determine art- 1, whether the condition is a condition precedent to tlic person's becoming a shareholder, or a condition subseiiuent; and 2, whether, assuming the condition to be precedent, it lias been performed or waived. If the condition is precedent, and has not been peri'ormed, and its performance has not been waived, the applicant will nut be a contributory (o). Thus in lioffers' case (p), a person applied in the usual form for shares, and his application was sent to the directors witli a letter stating that the application was made on condition that the applicant should be appointed agent to the compiuiy; he never obtained the agency, and had done nothing whidi amounted to an acceptance of the shares without it ; he was held not a contributory, although the shares had been allotteil to him. The following case was one of greater difficulty, but deciikil (»n the same principle. In Wood's case {q), Wood agreed to take CiiiiditioiiH jirt cedent. Rogers' case. Wood's ciise. (m) Ante, p. 17. (n) See Pellatt's case, 2 Ch. 527. (o) See, in addition to the ca-se referred to in the text, Mainwarinffs mse, 2 De G. M. & G. 66 ; Hohert's i-au, 3 De G. & S. 205, and 2 Mac. & G. 192 ; Amtiv's case, 2 Eq. 435. (p) lioyers' case, 3 t'li. G31 Set, also, Simpsmi's cu^e, 4 Ch, IW; ^Food's case, 15 Eq. 236. Compaq Thomson's case, 4 De G. J. & ^'H'- 749. iq) 3 De G. & J. 85. See, t"", Shackleford'.<< case, 1 Ch. 567, ani', IT. CONTRinrTOKIBS. — NON-PBRKOUMANCK OF CONDrTlONS. 771) I be found collecteii upon with rofertucf libutory. %nce of conditioni. [ to take sl>iuf!s upoii tlerable clilluiultv. If y both parties to tlir ; been assented to in company could not is in trutli no eiin- has been already iumed that tliore is a on special condition^, to determine art- in precedent to the >ndition subsenuent; ) be precedent, it has [not been perfonneii, the applicant will nut ed in the usual form the directors witli a ide on condition tbl to the conipiiuy; lif one nothing whiili without it ; he was >s had been allotteJ ifficulty, but deciiltMl Wood agreed to take rs' case, 3 Ch. G33. S«f, sm's ciiite, 4 Ch. 1^^ !, 15 Eq. 2^6. Compare case, 4 De G. J. & ^"i' G. & J. 85. See, H 's case, 1 Cli. 567, anf, sbres upon condition that lu! should obtain a contract for the ^^- 'V. Chap. 1. r , Sect. 10. supply of certain goods. The shares wt.-re allotted, and Wood — I was informed thereof, and he was registered as a shareholder. Nothing more was done, and Wood never obtained the contract. The Court held that Wood was not a contrib itory, first, I because tlu> conditions on which alone he agreed to take shares had not been assented to by the company with suHicicnt dis- tinctness, and secondly, because, even if they had, they wen? |ivnditions precedent, which had not been performed or waived. Where, however, the condition is not precedent to a person's Onnilitinns muIi- liecoming a shareholder ; or where if precedent he has wai> 1 '''"'•''• lits performance, either wholly or for a time subsecpient to tinit Itt which lie is to become u shareholder ; or if the so-called Condition is not in truth a condition at all, but only a. igree- Imeut giving rise, in the event of its breach, to a right of action ; lin all such cases u,> these, the person who has agreed to bec(hler will be a contributory, whatever his rights may Ik by reason of the breach by the company of the condition or lagreement. The following are leading authorities on this head (r; : — In Fisher's cane (a), an application for 700 shares was nmde PiHiierV case, in a specified condition. 700 .shares were allotted to theapi)li- lant and were registered in his name with the word conditional lagainstit. He did not know of this, but he afterwards sold and Kransferred 400 of the sliares. He was held a contributory for Nhe remaining 300 shares on the ground that the condition if pcedent had been waived ; and that if the condition was a iindition subsequent to his becoming a shareholder, its non- bertbrmance did not entitle him to reject the shares after the linding up of the company had commenced. h Ex parte Burton (t), a person was persuaded to apply to Rx parte I insurance society for an appointment as agent, and also for tares to qualify him for :he appointment. His application ras apparently acceded to, but before he paid for his shares, or IJurtoii. n, and Pellatt's case, 2 Ch. 527, ►K p. 781. I if) See, also, infra, p. 780, aa to pditions which are ultra vires. (i) Fither's case, and Sherrinyton'i case, 31 Ch. D. 120. (0 16 Jur. 967 ; and see Har- rison's case, 3 Ch. 633 ; Thomson's case, 4 De O. J. & Sm. 74!). {^1 ' 780 WINDING UP UY THE COUKT. Payment m shares. Klkington's case. Bk. IV. Chap. 1. c'> scuted the company's deed, he relinquished the appointment, — and expressed a desire to relinquish the shares. This, liowever lie was not porniitted to do, and he was held a contributuiv. So where a person agreed to suppl^^ the company with guois to the value of 3000L, and to take shares in the corapanv t ■ half that amount in part payment, and to take cash forth- residue, an 1 he applied for the shares in the ordinary form, m paid the deposit on them, and they were allotted to him, mni he received the certificates and paid the sum required upon the allotment ; it was held that he was a contributory in respect d! the shares, although no goods were ever ordered or supplied: and althougli it was contended tlint the agreement to tukt shares was conditional upon goods being required {'<). A for- tiori is a person a contributory who actually sells goods to a company and receives shares in part payment, and is registeiti in resjiect of them (x). The circumstance that the goods havc not been wholly paid for is immaterial (y). Similar principles apply to agreements to take shares in a company upon terms or conditions which are not binding uu the company. If the person who has agreed to take shai'es mi such terms has not, in fact, accepted them and become a share holder in resi^ect of them he will not be a contributory. If on the other hand he has accepted the shares and become a shiut- holder in respect of them he cannot repudiate them after tht winding up, and will be a contributory in respect of them. I Both of thesr propositions require illustration. The following cases arising under the older Winding-up act: and in which persons were held not to be contributories, mavk j usefully referred to on the tirst point : — JVoodfaWs case, 3 Ue G. & Sm. 631 («). A creditor of the company paid in scrip, wliicii lie soM. it "^u agrcid that he shonkl not execute tlie company's docJ, auilhtdiil not ; but his name was returned as a shareliolder. Bunn's case, 2 De C: F. fc J, 275(rt). • 'oiulitioiis which are ultra vires. (u) Elkinrito7i's ciisc, 2 Ch. 511. Compare Pellatt's case, ib. 527, infra. {x) Gore ami Durant's case, 2 E(p 349. {y) lb- {■-) See, too, Mowult uird Ellrfl case, 3 Dc G. M. & G. 254. C-A pare Davidson s case, 3 De ti. i H 21. («) See, too, Saundirs'sMf',' I UT. CONTRIBUTORIES. — NON-PERFORMANCE OF CONDITIONS. 781 led the appointment, fires. This, however, eld a contributory. company with good? is in the compauv t > to take cash forth- lie ordinary form, ani 3 allotted to him, iiiid um required upon the tributory in respt-ct ui ordered or supplied; lie agreement to tal;t f required (")• Afor- tually sells goods to a nent, and is registered ;e that the goods liavc ,s to take shares in a ;h are not binding ou [reed to take shares nu I m and become a share- contributory. If on the and become a shiu'c- ludiate them after the l in respect of tliem. ration. older Winding-up act: contributories, mayht [rip, which he sold, hiv^l company's lU'd, ami lie idj hvai-elioldiT. e, too, Mowitti ami Ellvfi i)e G. M. & G. 254. Comj ividsons case, 3 Do ta5| [e, too, Saunder^scaf>,i> The company agreed that Bunn should liave paid-up shares Bk. IV. Chap. 1. transfcrahle by delivery, hut that he should incur no lialiility __^.i?l_ and not je required to execute the company's deed. He never (lid, but he attended meetings. Coleman's case, 1 De G. J. & Sm. 495. Coleman liad executed the company's deed, but other conditions of membership hud not been complied with, and his agreement to take shares continued terms not binding on the company. Lord Westbury also held that even it' Mr. Coleman had become a shareholder, the proper inference from the facts would have been that his shares had been forfeited pursuant to the promise of the managing director. The directors had power to forfeit. Pdlatt's case, 2 Ch. 527 (b). Pellatt agreed to take shares on condition that goods to a certain amount should be taken of him, and that he should pay a small sum per share in cash, and that the goods should be taken in payment of the rest. He paid a deposit on his application for shares, and they were allotted to him, and he was put on the register ; but he did not know of the allotment or registration. Before anything further was done, and before any goods were ordered, he withdrew from his engagement ; three years afterwards the company was wound up. Howard's case, 1 Ch, 561. Reserved shares were accepted by Howard on conditions which were assented to by persons who had no authority to assent to them. Upon ju'ecisely similar principles if a person agrees to take fully paid-up shares he is not a contributory in respect of shra-es not paid up if he has not accepted such shares and become a shareholder in respect of them (c). These cases, however, must not Le confounded with others Cases where the which do not rest merely on agreement. If persons have accepted, become shareholders upon terms which are not binding on tho company, such persons will be contributories in respect of the shines they have in fact accepted ; and although they need not have taken them they cannot repudiate them after the winding- up has commenced. The following are the leading cases on this point. The reader will observe the difference between this class of cases and those discussed above (p. 774, head 4 h) li. J, & Sm. 101. Bunn was held (i) Compare Ellcington's caur, 2 1 not to have accepted the shares. Ch. 511, aji^', p. 780. Thiii circumstance distinguishes his (c) Arnot's case, 36 Ch. D. 702; a-e from Jhiniell's and others of Carlim/s case, 1 Ch. D. 115, and I that class noticed below. infra, head 5, ^.. 783, &c. 782 WINDING UP BY THE COURT. h w Bk. IV. Chap. 1. where the shares were themselves illegally issued and could not ! — ! — |)e legally recognised. Addison's case, 5 Ch. 294. Addison paid for and accepted shares upon the terms that thev should be cancelled and all money paid for them returned on lii giving a certain notice. He gave the notice, received his nioDtT back, and transferred his shares to a nominee of tlie conipaiiT, He was nevertheless held to be a contributory : tlie direckR having had no power to bind the company by the terms memionai nor to cancel the shares. Bridget's case, 5 Ch. 304, and 9 Eq. 74 (rf). An agent of the company agreed to take shares upon the tern.. that he should pay for them out of his commiss-ion on shar., which he might dispose of. He applied for and received an allotment of shares and certificates, and he was registered m .. \ shareholder and acted as such, and wa.s lield to be a contributon ' notwithstanding the collateral agreement as to the mode of pavio; ' for them. Ex parte Daviell, 1 De G. & J. 372, and 23 Beav. 568 (e). The directors of a company allotted fully paid-up sharij to themselves. Daniell was a shareholder and a director, and L took some shares under this resolution, and he obtained a icrtiS- cate that they were fully paid. He was held a contributory and liable to calls as if the shares were not paid up. Tlie importance of this case is due to the fact that the court lield that altliuu;,'l Daniell could not repudiate his shares the company was not bourj by the terms on which alone he had accepted them. The shm | allotted by the directors to themselves were treated as asstts J the company misapplied by the directors (/). Lord .Justice Kiii:,!.: Bruce dissented. See on this case Carlint/s case, 1 Cli. D. 1. Nickolis casr, 24 Beav. 639. Is another case in which a promoter was fixed with share- 1 which had been issued to him as fully paid up iu paynitnl f services. He had accepted the shares, and the comjiany was n^i bound by the agreement that they should be treated a.s fully paiJ | up. There are numerous other cases illustrating the same prin- ciple, but they mostly relate to paid-up shares, and will be found I under the next head (see p. 787, 9). (d) See, also, Davidson's ease, 3 D" G. & Sni. 21 ; Chapman and Barker's case, 3 Ecj. 361. (e) See, also DanieiVs case, 22 contributory, although he had en- deavoured to get rid oi his fbaw I The later report relates to calls. (/) See, also, Robinson's Eua- Beav. 43, where he was held to be a tors' case, 2 De G. Ikf. & (i. 517. CONTniBUTORIBS, — PAID-UP SHARKS. 788 5. Holders of paid-up shares. Bk. IV. Chap. 1. Sect. 10. With respect to holders of fully paid-up shares in a limited Hol.lors of fully company, as they are not as a rule liable to calls {k), they can- ^'*" '"'' ^ '"^°^' not be placed on the list of contribuiories against their own consent ; they are entitled to be on in order to share the surplus assets, if any : but if they disclaim all interest in this respect, tliey ought not to be put on the list (0- In order to prevent the frauds which were committed by 30 & 3i Viet, treating shares as paid up in full when they had only been paid '^' ' " "'• for in land, goods, or services of very questionable value, it is enacted by 30 & 31 Vict. c. 131, § 25, that shares in companies rayment up of registered under the Companies act, 1862, are to be taken to ' be issued and held subject to the payment of the whole amount thereof in cash, unless there is a contract in writing to the contrary filed with the registrar of joint-stock companies at or before (m) the issue of such shares. This enactment applies whether a company is being wound up or not («). This section applies to subsci'ibers of the memorandum of association (o), and even a subscriber of the memorandum is protected by a duly registered agreement (p). Shares are issued within the meaning of this section when they have been registered in some j^erson's name (5), or when H certificate of their ownership has been given (r). Probably an allotment would be held to be an issue (s). .tory, although he hail en- ed to get rid 01 liis ^li^t**^ I r report relates to calls. ee, also, Robinson's Km-': 2DeG. M. &cil; they have treated payment in cash as equivalent to payment within the meaning of a plea of payment at common law, anil | have held payment in cash to mean payment as distingui^y from set-off or accord and satisfaction (b). Accordingly, pai- by mistake. As to the issue of debentures, see Mowatt v. Castle Steel, d-c, Co., 34 Ch. D. 58. {t) Cricb»er's case, 10 Ch. 614 ; Pritchard's case, 8 Ch. 956 ; Gibaon {q) See caP: Carriage Cc-J'i ,-ru 27 Ch. D. 322. . Westminsfer Silver Lmd Ure C'j..l''' Ch. D. 307, wliere a payment gem- rally in respect of a number of shaK was apportioned equally betwi^n them. (r) See Ex parte Jeaffreson, U hi: 109. CONTRIBUTORIES. — PAID-UP SHARES. 787 )e worthless, it was ut a fictitious jiiiv- id returninj^ it, is w his way piiid up tlic )r prepays his shan s ees(n). Such jvay- ^' of the transactidU stionahle. ^Vhelva ;y i)ai(l to hiiu, liiit company, the shares ey have heen issued to the company ui)un as a loan, or as pay- le company continues , paid cannot on the as having heen paid Licipation of calls on as paid in respect of nv on account of the any amalgamates with d company exclmnie lany, payments to the IS cannot he treated as of the old shares ir). a on the fact, that the .wasmadeaftiiraiK'thioB up had bei^n present.'!; ,Urifier,rr''f--.:tr,8upiK)rt ,jj,. . ..,:vt note, ani ;V22 - ■• ■ ^*''''-' ^'"''"'■*''n tcr Silver Lead Ure C'.'..V'' )7, where a payment i;f'J- .spectofanumbevofshim-' ortioued etiually het«-=| , Ex varte Jeaffresmi, H ^<: \ navinent by ft director m advance of the amount of shares ^^- ^V. CTiap. 1. held by hnn will discharjfe him, although the payment may — — - — have been made to enahle tlie company to pay off a debt for whicli the director was liable as guarantor (s). If a holder of paid-up shares has had part of the capital of Return nf the eonipany returned to him, r.fi., by receiving a bonus or ' dividend paid out of capital, and not out of profits, he could perhaps be treated as the holder of shares not paid up, and be imt on the list accordingly (t). Even a registered contract will not bind the company to treat siiares inMimi at ;i share issued at a discount as a fully paid-up share. To the '* ' "''"""" ' extent of the discount, nothing has been paid for it. The statute assumes that every share is paid for in money or money's , worth, and, to the extent to which there is neither, a registered contract affords no protection. Consequently the holders (if such shares will be contributories(M), unless they are pur- I chasers for value without notice. A company may be estopped from proving that shares issued Purchasers for . " • , 1 . • 1 -IT < ,1 • 1 • valuo without IM It as paid-up, are in trutli not paid-up. But this doctrine notice. Iwdl not avail persons who know the truth (a') ; it only applies lin favour of a bond Jide purchaser for value without notice of [the real facts. But it does apply to him, and protects him Ifrom being put on the list as a contributory ((/), but not a pur- |(liaser from him with notice (s). Few questions present more difficulty than those which arise Reimiliation of ■ i 11 1 I'-ii • 1 utiiiiii(l-u|( Iwheii a person, who has agreed to take paid-up shares, is sought shares. (>" Poole, Jackson, and Whijte's ■I'i, i! Ch. D. 322. (0 See Stringer's case, 4 Ch. 475, Iml Iknce's cast:, G ih. 104 ; and ^snipare Ite Cardiff Coal and Coke ■ U W. R. 1007, and Cardiff, d-c, I V. Norton, 2 E(i. 558, and 2 Ch. I'5. See, also, McKay's case, 2 (Jh. («; London Cellnlnid Co., 3S) Cli. ■ISO; Almda Tirito Co., 38 Ch. I' 415; Addlestone Linoleum Co., 37 ■ l^'l ; Sandy's case, infra, p. 789 ; l"imston Tube Co., 23 Ch. D. 542 ; Incc Hall Rolling Mills Co., ib. 545, iiie overruled. (x)See below, aniSimmv. Ajiglo- Av)cricnn Tel. Co., 5 Q. B. D. 183. (i/) lliirkinshaiv v. Nicolls, 3 Ajip. Ca. 1004 ; A. IV. Hall d: Co., 37 Cli. 1). 712 ; fVaterhonse v. Jamieson, L. R. 2 H. L. 29, and see Guest V. Worcester Rail. Co., L. It. 4 C. P. 9. niyth's case, 4 Ch. I). 140, contra, cannot be relied upon. (2) London Celluloid Co., 39 Cli. 1). 190, correcting in this respect Barrow's case, 14 Ch. D. 432. 3 E 2 ^ ' m 7 f { ] ■ 788 WINDING UP BY THE COURT. Kffcct of Coiii- l)anicB act, 18C7. ^^' l^' ^^'^'^' ^' *o ^c put on the list in respect of shares which are not paid Sect. 10. ^ * up. He naturally desires to repudiate them, but it is seldom that he can do so. The leading cases on this subject will be found collected below. In companies to wliich the Companies act, 186" applies the question whether a person is to be treated as a member in respect of paid-up or unpaid-up shares, resolves itself into two others, viz., (1) is he, or ought he to be treated (a) as u member in respect of any shares ? and (2) can they, con- sistently witli the act, be treated as paid-up? If a person i, not a member and cannot properly be treated as a member in respect of any shares, he will escape (b), but otherwise he will be fixed unless the shares have been paid for in eash, or are to be treated as paid-up, pursuant to a duly registered contract (c), or unless he is a purchaser for value without notice (. (iGl. Miller was a director, but had retired. 2.'j fully paid-up shares W"'e registered in his name as his (pialificatipn shares, but they were treated as forfeitetl when he retired. In the following? cases, persons who had agreed to take paid- up shares, were hold contril.iitories : Ci(m«'s case, 3 De O. J. & Sni. 3(57. Directors had agreed to rpialify themselves ; IW shares (piali- tied ; they endeavoured to discharge their obligation by means of fully paid-up shares partly obtained from promoters and partly voted to themselves. Ex parte Daniel, 1 De O. & J. 372. ) , . _,. .\ickolls case, 24 Beav. 039. J ' Lecke's case, 6 Ch. D. 46i), and 11 E([. 100. \ See infra, under the Disckri I- Co., 11 E([. 242. j next head. Harrow's case, 14 Ch. D. 432. A director was registered as the holder of .300 paid-up shares, but they were neither paid-up nor protected by a registered contract. Other shares were treated as paid-up, he being regarded as a purchiu^er for value without notice ; but see as to this, London Celluloid Co., 39 Ch. D. 190. iMmui's case, 14 E ed(j), for town as (lb- Cases such as these npany's deed of settle- upon any rule relatiiy iirectors to the etlVd lold a certain number I necessarily impose any acts with.iut obevinjj mtributory (/). etimes so worded as u I extent of the share> in Forbes' ca.«, 8 Ch. :•).<; I lid Hamilton's cw/^kii^:^ (se, 4 De G. J. & !:i"i.42'i: ;ase, ICh. 85. CONTRIBUTORIES. — QUALIFICATION SHARES. 791 necessary to qualify them, and where this is the case such '*''. IV. cbaj). i .... Suet. 10. directors will without more be contnbiitories in respect oi such shares (w). Whcic no (jiialification is necessary, the circumstance that a Repudiation luTson has iign^ed to become a director, and has acted as such, 'shnrw. ' ^"''"' will not make him a contributory in respect of shares allotted to him and placed in his name without his authority or know- Icdfje; and if, in truth, he did not kno\\ that shares were in his name, knowledge of the fact will not b'- imputed to him on the ground that he might have seen th': entries in the books if hi- had looked into them (/«)■ But if the regulations of the lonipany do require a director to hold a certain number of shares, and they are allotted to him and are registered in his name, he will be a contributory in respect of them (o), although he may nut have applied for them or known of their allotment t(i him (j)), provided he has no other shares sufficient to i|ualify him (q). Still less can a director who accepts the shares necessary to fialify him take advantage of any want of formality, and repu- diate them on the ground that he never was, properly speaking, a shareholder in respect of them {/•). But, generally speaking (n), a director is not bound bv Qualiflcatiou „. V * , . . , . ,.,, . , ,. ,, ' may be obtiiincil acceptmg otnce to obtain Ins quahncation sliares direct from by transfer, the company ; he may obtain them by purchase from other [leople, and if he obtains them within a reasonable time after 111' becomes a director he cannot be made a contributory in Ruvvjne's case, 5 Ch. !)• (m) Kincaid's case, 11 Eq. 192, "here sliares imd i)eeu allotted to the directors ; Forbes' case, 19 £([. 3.).') ; Kmx's and Nugent's case, Ir. II. 11 Ell. 294 ; O'Brien's case, \h. 422, where no shares had been JlutteJ. See, also, Portal v. l'mme«.<, 1 C. P. D. 2t)l & 664, and i^oidh London Fish Market Co., 11 Ch. D. 3i4. i/i) Hallmark's case, 9 Ch. D. 329. ") Saundern' case, 2 De G. J. & Nil. 101, is not opposed to this. It Moa- under older acts. i f) See the casos collected iu the 2nd table infra, p. 796. {q) See infra, as to this. (r) Walter's case, 3 De G. & Siu. 149, affirmed on appeal, 19 L. J. Ch. uOl ; Rouey's case, 4 De G. J. & S. 426 ; Gurrie's case, 3 De G. J. & S. 367. And .see Bird's cane, 4 De C J. & S. 200, where the director ap- plied for shares a.s agent. (s) The regulations of the com- pany might be exceptional. So it' no shares could be obtained except t'njni the company, see Hamley's case, 5 Ch. D. p. 707. 792 WINMNa UP IIY TUB tOlJIlT. (Icneriil |irinoiploH. nk. IV. fhnp. 1. rrs|)0('t of any ftdditioiml shnroH on tlic ground tlmt he did ndt '■ — '■ — quiilil'y liiinstlf soon enough, and ought to he trciittd iis hohling Khiircs as soon as ho accepted olFu'c or iictod as n diroct(»r (/). Assuming tluit qualiliciition shares are necessary, tlicii (in llic ahsenee of any special statutory enactment aiipHcnliK^ tn the ease) tlie (|uestion8 to he determined in each ciisc mv— 1. Has the directt)r expressly or impliedly agreed witli tin company to take the necessary shares from it'? 2. Has he s.i acted as to be estopped from denying that he has so iii,'rml.' If either oi' these ([uestioiis is decided against him lie will U' n contributory, but not otherwise. Th(( state of the rcgistir i> very important ; for if he has been registered as a nieinbir in respect of his (pnilification shares his assent to take them will be readily inferred, ami he will be a contributory unKss lie can prove that his mnne ought to be removed from the rcgisti r even after the winding iij) has commenced (a). On the utliir hand, if he has not been registered as a uunnber, tlie eviiltinf against him uuist establish that he ought to be on the n gistir in respect of the (puilification shares. The application of these principhs depends on I'mis luii inferences of fact, and, as might be expected, the ciiscs dii tli. subject are by no means all consistent. An attempt has krii made below to classify the most important of them for cuiivi • nience of reference, but the principles underlying them all will be found to be those stated above. The cases appart'utly warrant the following inferences :— 1. Notwithstanding § 16 of the Companies act, 1862, ren- dering a company's lU'ticles binding on its nuiuibers, u peis iii who is a member (by subscribing the memorandum of associa- tion or by having shares), and who becomes a director, isii't necessarily a contributory in respect of the shares necessjuy tu qualify him for the othce (jf). (t) Broini's case, 9 Ch. 102; inieal Jhdler Consuls, SS CM. \\ii.\ Karuth's case, 20 Eq. 506; Marquis ami si'e Hcvitt's case iiwUhilt's'H'. of Abercom's case, 4 De (1. F. & 25 Ch. D. 283; and llmmv.L'l J. 78. Trinidad, 37 Ch. 1). \>f. 13, »■ j (u) This was done in AustiiCs Compare Hilton Hotel Co., 9L. I case, 2 Eq. 435. Ir. 338. (x) Karuth's case, 20 Eq. 506 ; DbBcrvationfi on the cascti. CONTUinUTOIlIBH. — QUAMFICATION HHAIIKS. 79:i epends on t'mls aiM {\, the ciiscs (111 till- All attt'mi)t lias bciii oi tlifiu for convi- erlyiiiR them all wdl 'iii<^ int'crenci'S :— allies act, 1SG2, reli- cs nieinbers, a persi'ii loinnduni of associa- mes a director, is nut e shaves necessary to I f/cr Consols, 38 C'li.D. 42: 1 cvitt's ease ini'H.'n '('»•"'*■ 283 ; and I'Towm v. Lj 37 Ch. 1). PP- 13. l^' miton Hotel Co., 9 ■'• "■' 2. Tlio Oourts have often doelincd to infer an a^,'reeinent by '"«• }^- ^''"P- '■ a director with the coiii|iany to aecept (|iialilieation sliarcs from ■ — It, iiltlioiij;h he has aceeptcd the ollico of director and acted as S.U1I1 without heiiif^ (jualified. The cases on this point, how- (Vir, arc hy "•» nieans unifonn ; nor can they be expected to be so, as tlicy ail turn on inferences of fact (//). 8. If a company is wound up before the lapse of a reasoii- iible time for the ae([uisition of r|ualiilcation shares, directors »bo have not accpiired them will not be contributories in ri'spec't of them (z). 4. So, if a person has agreed to become a din^ctor, but has ihaiipcd his mind or has n^tired almost imnuidiately, and has lilt lUTCptc (1 (jualilication shares, and lias not agreed to take tlam otherwise than inferentially by being a director, he will iwt be a contributory (a). So if he retires on the ground llmt conditions on which ho accepted ollice have not been lultilled {!)). 5. If the holding of qualification shares is a condition pre- mlciit to election as a director, and an uiKiualilied i)erson is tltctcd and acts for a short time, and then retires before ho iltaiiis his qualifying shares, he will not be a contributory (<). His flection will have been void. Nor in such a case will he W made a contributory if qualification shares are allotted to liiiu after his retirement (<■/). 0. A director may treat any shares he holds as qualification >liares unless he has agreed to take them in addition to "lliers ((■). «) Cmiipiire the ciiscs in the two tidies biluw, iiiid sue the Irish cuse, k'.mton Ihitd Co., 9 L. R., Ir. 3:i8, I »liere the director was hehl liable. ':) HeintCs case and Brett's cane, 25 I Ch. D. 2^3 ; IVIual Bulkr Consuls, l38Ch.D. 42. («) Marquis of Ahercorn's case, 4 I D( (1, F. i& J. 78, explained and appruved in Brown's case, 9 Ch. 102 ; I KiirM's case, 20 Eq. 506 ; Barber's U", 5 Ch. D. 963. See, also, the I J.ext note. (l) Austin's case, 2 Eq. 435 ; Green's casi; 18 Eq. 428. Compare Sidnty's case, 13 Eq. 228. (c) Hamleijs case, 5 Ch. D. 705 ; liarhcr's case, \h. 963 ; Jenncr's case, 7 il). 132. {d) Barber's rase, 5 Ch. D. 963. See,, as to est(q)pel, jier James, L. .J., at p. 968. (t) As he had in FowWs case, 1 4 E([. 316, hut not in Duke's case, 1 Ch. D. 620, where Folder's case U doubted ; Brown's ca^e, 9 Ch. 102, and Miller's case, 3 Ch. 1). 661, are the leading cases on this point. Bk. IV. Chap. 1. Sect. 10. §165. WINDING UP BY THE COURT. 7. Apart from any special circumstances, if a director is tlie registered holder of the requisite number of shares, he will l,e qualified, although the articles require him to hold them in lii> own right, and he may have moilgaged them or even have nii beneficial interest in them (/). 8. As regards paid-up shares, nothmg need be added to what has been stated ah'eady when dealing witli tlmt sub- ject (g). It has been said that shares which are noiniiudh fully paid up cannot satisfy the requirements of the qualitica- tion clause (h) ; but if the company is bound to treat the I shares as paid up, whether by reason of a duly ugistp- contract or otherwise, that must be sufficient. Acting as a director without a qualification does not aniduut | to a misfeasance within § 165 of the Companies act, 1862 [i] TABLE I. In the following cases directors wei'e held not to be coiitri- butories in respect of their qualification shares : the C/Uitj coming to the conclusion that no agreement to tfike share* j was established, and that the directors were not estopped from denying their due qualification : Abei'corn's case, 4 De G. F. & J. 78. Director accepted oftice anil was advertised, but he never atit and (lid not know qualification was necessary. See, also, Mather v. National Ass. Assoc, 14 C. B. X. S. 070. Kandh's ca^e, 20 Eij. 506 (k). Director subscribed meiuorandum and articles of associati'; and was advertised ; but be withdrew from the cumpany .;: ij never acted. Brown's case, 9 Cli. 102. Director had fully paid-up shares re},'istered in his name, uii t : agreement to take others was proved. (/) Pulbrook V. Richmond Cons. Mining Co., 9 Ch. U. 610; Cuinming V. Prescott, 2 Y. & C. Ex. 488. Sed ipmre, if he is only a trustee of them, see Bainbridge v. Smith, W. N. 1889, 72. {g) Ante, p. 783 et se^., and see the tables below. (/i) Gu.rrie's case, .3 De G. J. ^.v : 367. (i) Coventry and IHxmi's cm-.l-.l Ch. D. 660. {k) In all these cases tiie diivi ; : were put on the list for the ^liir-'| for which they signed the nit;: andum of association. CONTRIBUTOBIES. — QUALIFICATION SHARES, 795 .vertisoil, but he never idK' •eL'istered in his name. ;iii i Cnn-ie's case, 3 De G. J. ^'^ -I Miller's case, 5 Ch. D. 70, and 3 ib. 661. Bk. IV. Chap. 1. Director hail tally paid-up shares to qualify hiiu, and they were ^'"'''' ^^' forfeited when he retired. Hamkifs case, 5 Cli. D. 705. ti-rha's case, ib. 963. Jewwr's cr 7 Ch. D. 132. Ill all of these the qualification was u condition precedent to election, .md the directors were not duly elected, and they had retired before oiltainin.^' any shares. Hemtt's case and Brett's case, 25 Ch. D. 283. ) Wheal Bulkr Consols, 38 Ch. D. 42. ) Directors signed the memorandum and article.'^ of association, but had not had a reasonable time to qualify before windin;,' up conmienced. In A\'heal Buller Consols directors had three mouths tu ([ualify, and the windinj,' up commenced directly afterwards. Totkill's case, 1 Ch. 85. Director sij^ned memorandum and applied for qualification shares, but never got them. His name was in a list for the shares, hut he did not know it. N.B. — The articles did not require directors named in them to qualify. Compare lioncij's case, 4 De G. J. & Sni. 426. Stock's '•.ase, 4 De G. J. & .^m. 426. Forks' case, 8 Cli. 768. Lord Claud Hamilton's case, 8 Cli. 548. The last observation applies to these also. Cha}man's casi\ 2 Kq. .')67. Director sii,'ued memoi.uidum and articles of association, and was named in them as a director. He applied for qualification shares, Init never s:;ot them. He resigned. Gurrie's case, 3 De G. J. & !~'m. 367 (/), . Carlinfj's casi, 1 Ch. D. 115, | ante, pp. 788, 789. Arnot's ca.sc. 3(; Ch. 1). 702, ) are all cases in which directors ere entitled to say tliat they were only liable, if at all, in respect of fully paid-up sliares. Arnot's case was not a case of (lualitication shares. ikunders' case, 2 De (1. J. & Sin. lOl. Saunders was registered, but he was not liable to creditors as a member, and he was entitled to be indeniiiilied by the company under the older winding-up acts, therefore he was not a contributory. H'dlmark's rase, 1) Ch. 1>. 32!). Shares were registered in a director's name without his kimw- ledge. No (qualification sliares were necessary. Austin's case, 2 £([. 435. The director was on tiie register for the (qualification shares, but he did not know it. He had retired on'the ground that thi^ con- ditions on which he became a director had iKjt been performed. N.B. — None of the above were registered in respect of unpaid- up shares, except Austin, Saunders, and Hallmark. (l) As to the shares a, see ante, p. 789, note (/). "^ ;^pfpr- 796 Bk. IV, Chap. 1. Sect. 10. WINDING UP BY THE COURT. TABLE II. In the following cases directors were held to be contribu- tories in respect of their qualification shares, the Court comiiij,' to the conclusion that an agreement to take them w^ established, or that the directors were estopped from denvimr their qualification : Leeke's case, 6 Ch. 469, and 11 Eq. 100. Director had qualification sliares allotted to him ; they wct registered in his name as paid up, which, however, they were not. He knew lie had the shares, and acted as a directcr. Harward's case, 13 Eq. 30. Director acted, and had qualification .shares allotted to him, but he did not know it. Levita's case, 3 Ch. 36, Bird's case, 4 De O. J. & Sm. 200, wire both cases of express application for shares hy a directir, and registration in his name. See, also, Barroiv's case, ante, p. 789 ; and Roney's case below, Disd^ri cfc Co., 11 Eq. 242. 11 directors had (jualification .shares allotted to thum ai;J registered in their names as fully paid-up, which, however, they were not. Walter's case, 3 T)e G. k S. 149, affirmed 19 L. J. Ch. 501. Qualification shares were placed in director's name with hi- consent ; but the formalities necessary to make him a shareholJer I were not duly complied with. Dttlce's case, 1 Ch. D. 620. Fowlers case, 14 Ivj. 316. The question in these ca.ses was how many .duires ovir mj above the (lualilication nmuber the director was liable fur, Ead was decitled according to his real agreement. Cnrrie's case, 3 De G. J. & Sni. 367 (>«)• The directors had signed the articles which re<(uireJ thembj hold 100 shares. They had voted themselve,-; paid-up phar- They were treated as holders of 100 unpaid-up sliari!.>5. Sharesfil which they had signed the memorandum were n'ckoitedaspartvfj their IdO qualification .shares. Cinrie acted as a director; !«[ 20 Eq. .510. Esparto Tradimj Co., 12 Ch. D. 191. Goddard had accepted the office of director, and hf.d actoj uj such ; lie was registered in respect of his (pialificatiun sh;mj;| they had bfcii marked in the books as cancelled, but ihuyhaiim been duly forfeited. (m) The shares here referred to are those indicated as 6 and c in tb^. report. See ante, p. 789. <; ! m'\ CONTRIBUTORIES. — SUBSCRIBERS OF MEMORANDUM. 797 Honey's case, 4 De O. J. & Sm. 426. Bk. IV. Ch.ip. 1. Roney acted as a director and agreed to take 100 share.'! ; but __^^; there was no allotment of them, nor were they registered in his name. Hai/s case, 10 Ch. 593. Hay had signed the memorandum of association for the shares for which he was held liable. The only question was, whetlier he had paid tor them. shares allotted to him, but L. J. Ch. 501. director's name with hi- to make him a shaieliolJer I les which reiiuired them : themselves paid-up flian-l npaid-up shares. Share; til urn we-re I'l'ckdiii-'daapart'ij acted iis !i ilirector; Jttl if director, and had acteJ ^ of his (lualiticiiticn i-hir^^l 3 cancelled, but th.;y bad ttlj indicated as 6 and c in it'l 7, Subscribers of the memorandum of association. In companies formed under the act of 1862, the siih- Subscrii)crs of soribcrs (n) of the memorandum of association are members, (iim°of"a.ssocia- and liable to be put on the list of contributories, although *■'""• tin; memorandum maj' have been somewhat altered since they si^nied it (o) ; and although no shares may have been allotted trt them, and they may never have been registered as share- liolders (p) ; and although the directors may have cancelled tiie shares at the request of the subscribers (q). If, however, all the shares in the company have been duly allotted to other persons, so that none are left which a subscriber of the memo- randum ciin hold, he will not be a contributory, but must be treated as having transferred his shares (r). In Felgate's case (s) it was held that a person who signed Felgate's case. the memorandum and articles of association was not a con- tiibiitory, the articles having been altered after he signed them, but before they were registered. But it is very difficult to reconcile this decision with the provisions of the act (t). Shares allotted to the subscribers of a company's memo- randum of association are prima facie allotted in respect of, or (ft) Signature by an agent in piui\alLiit to signature by oneself, ^llntkij Pitrlners, Limited, 32 Ch. , li. 337. {'') Peel's case, 2 Ch. 674 ; Oahs V. Tim^uand, L. 11. 2 H. L. 32.'). j I uiiiparo FcUiate's case, 2 De O. J. & I ^m. 456. if) London and Provincial Con- hUntd Coal Co., 5 Ch. D. 525; Ui'hwfi case, 13 E.i. 228; Evans' (H2Ch. 42/; Hairs case, 5 Ch. 1 107. See, also, tiie cases in the next five notes. ((/) Esparto Trading Co., 12 Ch. D. 101. Compare Nicol's case, 2!) Ch. D. 421. (r) Mackleij's case, 1 Ch. D. 247 ; Drummond's case, 4 Ch 772. See 4 Cii. 776. See, also, Kipling v. Todd, 3 C. P. D. 3.50. (s) 2 De G. J. & Sm. 456, decided on 19 & 20 Vict. c. 47. (0 See §§ 11, 18, and the cases in note (o), a7ite. ',fr 798 WINDING UP BY THE COURT. Bk. IV. Chap. 1. include, the shares subscribed for ; consequently, unless then Sect. 10. . 1 ii • • /■ are circumstances to rebut this inierence, a subsf Tiber's lia bility is not for the number of shares subscribed for, b!i/« the number allotted, but only for one of such numbers, or the larger of them if they are unequal (u). Duke's case. In Duke's case (x) there were two classes of sliares, .{. shares and B. shares. Both classes were of the same nominal amount, but the B. shares were preference shares. A ptrson subscribed the memorandum for 50 B. shares ; but he applied for and had allotted to him 25 A. shares and 25 B. share? instead of 50 B. shares. It was sought to place him on the list in respect of 25 A. shares and 50 B. shares, but it was held that this being contrary to the intention of all parties, and the act only requiring the memorandum to state tlie number of shares applied for, he was only liable to be a con- tributory in respect of 25 A. shares and 25 B. shares. 8hares sub- 1'^^ shares which a subscriber to the memorandum agrees scribed for when ^^ ^ake are prima facie shares not paid up (y) ; and tlie aequi- paiil up. sition by him of fully paid-up shares to which some one else was entitled will not relieve him from his liability to be a con- tributory in respect of the shares for which he subscribed tlie memorandum of association {z). Before the passing of the Companies act, 1867 (30 & 31 Vict. c. 131, § 25, already noticed), it had been decided that if the memoranrlum nr articles of association showed that the shares subscribed for were shares fully paid up, and the subscriber had given value to the company for them, he would not be a contiibutoiy in respect of any other shares (a) ; and that, if the articles of association stated that paid-up shares were to be issued to a subscriber of the memorandum, the shares for which he sub- scribed were prima facie the same as those which he wiis (m) Gihnan's case, 31 Cli. D. 420 ; Elliott's case, W. N. 18fi6, p. 342. (.r) 1 Ch. D. (520. See, also, MaynanVs case, \) Cli. 60. (;/) Maynard's case, 9 Ch. 60 ; Ha ij's case, 1 Ch. 593, where the shares were paid for out of the company's money. See, also, the cases collected in Table II., ante, p. 796, and the cases in the next four notes. (x) See Migotti's case,i Eq. 2.3-; Forbes and JiukVs case, 5 Ch. i'S: Dent's case, 15 Eq. 407, and b Ct. 768. («) Buglan Hall Colliery Co., '< Ch. 346 ; Baron dc BevilU's can, ' Eq. 11. See note (c), infra. IT. CONTRIBDTORIBS. — HOLDERS OF SCRIP. 799 [uently, unless there , a subscriber's lia- subscribed for, pins ' such numbers, or isses of slmres, A. of the same nominal e shares. A ptvson ires ; but he applied s and 25 B, shares to place him on the B. shares, but it m ;ntion of all parties, anduni to state tk [y liable to be a con- 15 B. shares, memorandum agrees ip {y) ; and the acqui- which some oiu' else 3 liability to be a con- lich he subscribed tilt the passing of the 131, § 25, already le mernoraiulum v\ shares subscribtd for iber had given value be a contributoi? ill lat, if the articles of ■ere to be issued to a •es for which he sidi- those which he \vil^ ■le next four notes. Mifiottis c(m,i E(i.-23\ ' i JwhVs case, 5 Ch. i'"; , 15 Eq. 407, and ^ t'L la7i Hall Colliery (.'o., ''^ Baron dc Bcvilltscm,' ice note (c), infni. entitled to receive under the articles of association ; or in '^k. IV. Chap. i. f""" Sect. 10. Dent's case. Other words, shares paid in full {b). However, notwith- standing these decisions, it was held in Dent's case (c), that a person who subscribed the memorandum of association was a contributory and liable to calls, although the articles of asso- ciation declared that all the shares subscribed for were to be allotted as fully paid up, and although the company was bound bv a"reement and by its articles to allot fully paid-up shares to a third person, or his nominees, of whom the subscriber was one. It is extremely difficult to reconcile this decision with the case of the Baglan Hall Colliery Co. and others of that class ; and it may be safely assumed that they will not be extended even if they should be ever followed i»).'ain. With respect to companies formed since 1867, it has been Anderson's case. held by the Court of Appeal, 1.^ Anderson's case (d), that I shares for which a person signs the memorandum of associa- jtioii must be treated as paid up if there is a bond Jide con- >ideration for them, and if an agreement that they are to be [treated as paid up is duly registered pursuant to 30 i*t 31 Vi(t. c. 131, § 25, at the same time as the memorandum litself. Such an agreement was held not to be invalid on the Igiound that it altered or was inconsistent witli the memo- [landum of association, which was the view adopted in the Icdurt helow. 8. Holders of scrip. With respect to scrip companies, i.e., companies the shai'es Shares in scrip [.,., , , ,,. „, .".„ companies. im winch pass by the delivery of ''le scrip certificate, he who Iwhen the company is ordered to be wound up, is the bond Jide [Itilder of a certificate, and is bond Jide entitled to a share as [suih holder, is a contributory in respect of such share (t-). {h) Jmes' case, 6 Cli. 48 ; Pell's jtn*. 5 ib. 11 ; Driimmond's case, 4 Oi. 772. See the next note. (f) Dent's case, 15 Eq. 407, and Ch. 768 ; Futhereiill's case, 8 Ch. i:o. 1 1 Ch. D. 75. The articles ll;o stated that the shares were paid up ; but this alone would not lie sufficient, see ank, 784, note (t). (c) See Griseioood and Smith's case, Dc Pass's case, 4 De G. & J. 544 ; Finlay Hodgson's case, 2(5 Bciiv. 182; Parclai/s case, ib. 177 ; She'wcirs aise, 2 Ch. .387, and the cases in notes ( j) and (k) infra. 800 WINDING UP BY THE COURT. Bk. IV. Chap. 1. But as will be seen hereafier, mala fide transfers of the ptrti- ficates to persons who hold them for the transferors, will not enable the latter to escape from being made contributories ( f). If, as sometimes happens, the scripliolders are a distinct clujs from the shareholders, not enjoying the same riglits, and not subject to the same liabilities, difficult questions arise as to the liability of the scripholders to be put on the list of con- tributories. A company of this sort has been ordered to be wound up on the petition of a transferee of scrip, but onlv un his admitting himself to be a contributory. The very imt however, that this admission was required, shows that tii Court was not satisfied that he would have been a contributon without it {g) ; and in other cases arising on the windiuf! up of the same company it was held that even an allottee of snip was not a shareholder (/?). As has been seen above (i). an agreement to take shares wlmli, owing to the non-performance of conditions precedent or other- wise, cannot be specifically enforced, does not render the pii- son who has agreed to take them a contributory. Allottees of I scrip are frequently in this position ; and when tliey are, iIkv are not contributories. Thus, where scrip transferable to bearer is issued, and it is provided in substam^e that on re^'is tration of the scrip, shares will be exchanged for it, an allottee | of scrip who transfers it without registering it ( j), or wli 51; scrip is forfeited for non-registration {k) (power to forfeit in such case being reserved), will not be a contributory, and it is very questionable whether he will if he holds the scrip and it remains unforfeited ; unless, indeed, he is registered ns a | shareholder, and he allows himself so to continue. Under the Companies act, 1862, shares transferable "S ...i."*!* V .;?. (/) Lund's case, 27 Beav. 465 ; Hyam's cane, 1 De G. F. & J. 75 ; Gostcllo's case, 2 il>. 302. Conipiiro Dc Pass's case, 4 De O. & J. 544. These will be noticed hereafter. {(j) Littlehampton Steam Ship Co., 2 De G. J. & Sm. 521. (/i) Ormerod's case, 5 Eq. 110. CNmipare Gregg's case, 15 W. R. 82, where the allottee was registered as a member, and was held tu be a j contributory. Sec, also, Wtshna case, 5 Cli. 614, where the son iii caused tlie shares to be rtj;istt;rt], | and tlie father was put ou the list. (i) Ante, p. 778 el *iiit and several, Gillespie, v. Citij of Glasgow Bank, 4 App. Ca. G32. See, alsn, I)avidi07i's case, :i J)d (J. & Sni, 21 ; Ex parte Jones, 27 L. ,J. Ch. tiG6, and Barrett's case, 4 De G. J. & Sm. 410. 8 F •? f I ' 802 WINDING UP BY THE COURT. Bk. IV. Chap. 1. Sect. 10. Ceitui que triiH not a contribu- tory. Bugg'g case. Transfers into peraons' names without their authority. Dishonest trusts. Cox's case. to him and he has accepted them he will be a contributory m respect of them (y). The cestui que trust on the other hand is not liable to bu iim on the list. The leading case on this head is Bwjffs case (:) there a person bond fide bought shares in the numc of his brother, in order that it might not be known that he was him- self connected with the company : there was evidence to show that the trustee was unable to meet the calls upon him, Init the cestui que trust was held not a contributory. Morenvir, subject to the observations which will be made hereafter on maid fide transfers {a), it is immaterial whether the trustets acquire the shares by allotment, as in Bur/ff's case, or k transfer (b) ; and the fact that the object of the radii que trust was to avoid liability will not make him a con- tributory (c). But although the general rule is that the trustee and not the cestui que trust is a contributory, still, a person in whose name shares have been placed without his knowledge or con- sent, and who has not himself accepted them or ratified wlwi has deen done (d), cannot be made a contributory in respect of them (e). Again, the rule that the ti'ustee, and not the cestui qui tmt.l is a contributorj', will not be adhered to where a departure from it is required in order to defeat fraud. In a case wliertj a promoter of a company took a number of shares, and plaeel them in the names of various persons in order to swell the (y) Hoare'n case, 2 J. & H. 229 ; Ex parte Drummond, 2 Giff. 189. Com- pare Ex parte Scully, 6 Ir. Ch. 72 ; and Ex parte Hall, 1 Mac. & G. 307, reversing 3 De G. & Stn. 80. Observe that in tliis case non-liability to creditors was relied on. (z) 2 Dr. & Sm. 452. See, also, Fenwick's case, 1 De O. & S. 557 ; Newry and Enniskillen Co. v. Moss, 14 Beav. 64 ; IVilson v. Keating, 27 Beav. 121, and 4 De G. & J. 588. (a) See infra, class B. (6) King's case, 6 Ch, 196 ; Mit- chelFs case, 9 Eci. 363. (c) IVilliams' case, 1 Cli, D. 5it and the cases in the lust note. (rf) A ratification of a transf-J previously made without autlioriifj is sufficient. Ker's case, 4 App. OJ 549, 598. Compare Bell's can, | App. Ca. 547 {Janet Hill's case). (e) Pirn's case, 3 De G. & S. I and 1 Mac. & G. 291 ; Etm>^ Ex. case, 3 De O. & S. m,M\ Mac. & G. 201, in both of whicliil evidence of acceptance was insuSl cient. BT. CONTRIBUTORIES. — TRUSTEES. 803 be a contributory in s not liable to be put ad is -Ku'yf/'s caseC): in tlie name of lib own tliat he was liiin- was evidence to sliow e calls upon him, kit tributovy. Morenvir, be made hereaftov (in whether the trustees object of the ct'sdii tot make him a eon- lat the trustee and not till, a person in whose his knowledge or con- d them or ratified wlwt .ntributory in respect of ! not the cestui qidtml\ to where a departure fraud. Inacase^vl>eK| er of shares, and ] in order to swelUliel xse, 9 Eq. 363. mHams' case, I Cli.D.5,6 cases in the liwt note. _ „ ratification of a trani.-r ,sly made ^vitl>out autlion'J •lent. ICfirs ca^e,4Apr.U| 9B Compare Belh cm, 1 la 547 {Janet Hill's cast), i Ws case, 3Dea.&!^>'' Mac. & G- 291 ; ^""-^l ,, 3 De O. & S. 191,H ,G 201,inbotliot«'hicl"^ ce of acceptance was irfl apparent number of shareholders, and so to deceive the public, he was put on the list in respect of all such sliares ; he was ill fact, treated as holding the shares in various names which he had chosen to assume for purposes of his own (/). Whether his nominees were also liable to be put on the list was not dtt'idud, but was expressly left open for determination (r/). So where a father bought shares from a company in the name of ft son, who was under age, the father was placed on the list, the son's name being treated as his (/<). So where a person procured a married woman to apply for shares for hnn, and she did so, and shares were allotted to her, it was held that he was a contributory : her name being ♦rented as his own disguised (J). Upon the same principle, viz., in order to defeat fraud, if a person transfers his shares to a nominee of his own, in order to put the nominee forward in case of reverse, but at the same time to retain for himself whatever advantages may accrue fruiu the shares, the real owner will be treated as himself hold- ing the shares, and will be placed on the list accordingly {k). Ill all these cases the dishonest purpose of the trust prevents its recognition for the purpose for which it was created. But, as akeady seen, a purchase of shares in the name of a person to avoid liability does not entitle the company to put the purchaser on the list, if the transaction is a real trans- [ action {I), Further, in companies, the shares of which ai'e transferable I by delivery of certificates, the person who may happen to hold the certificates for another when the company is ordered to be Uk. IV. Ohap. 1. Sect. 10. Name uf tru.stco treiitcd :is name of ivalui que tnmt. MM tide trunsfers. Name used to avoiil liability. Holders of siiareii pxs.sin^ by delivery. (/) Co3^$ case, 4 De G. J. & Sm. 1 53, on appeal from the Stannaries. |C'ompare King's case, 6 Ch. 196. (;;) See, as to this, Barretts case, |4 De G. J. & Sm. 416, and David- ion's case, 3 De ft. & Sm. 21. Co Wiilon's case, 5 Ch. 614 ; Mmimn's case, 19 Eq. 588. Compare Ex parte Scully, 6 Ir. Ch. (i) Pugh and Shan/nan's case, 13 E(^. 566. Compare London, Bombay and Mediterranean Bank, 18 Ch. D. 581, where there was no fraud. {k) Chinnock's case, Jolins. 714, and others of that class noticed infra, under class B., p. 826. Com- pure Williams' case, 1 Ch. D. 576. (0 ArUe, p. 802. 3 r 2 P-Jwlj 11 3 i5f ' 804 WINDING DP BY THE COURT. Finlay's cahc. Ilk. IV. Chap. 1. wounrl up, is not necessarily tho proper person to be on the Sect. 10. , _ __ . . list of contributories. Whether he is, or is not, depciKls upon whether he held them as a principal and legul owner, or simply as 48, and ilimhr Bank, Limited, 17 L. R., Ir. 341 ; Eiinis and IVesi Clare Mlway Co., 3 L. II., Ir. 187. The Court will not rectify the Jeijisttr und treat the trustee as not a uieiuber after the company has gone into liquidation. See < 'ree V. Somervail, v.hi sup. Quart if it will do so before. !^ee Beallie v. Lord Ebury, L. R. 7 H. L. 102. In Gray's casv, 1 Cli. D. f)64, where the trustee was never registered as a holder, and it was agreed that he should not be, he was held not a cDntributory. (/■) See Cruse v. Painn, ti Eq. (541, and 4 Ch. 441 ; Butler \. Cumpston 7 Eq. 16 ; James v. May, L. R. 6 H.^ L. 328, and see Hugkes-Hallett v, Indian Mammoth Gold Mines Co., ■1-J. VA\. D. 561. (*•) Hobbs V. IVayet, 36 Ch. D. 256, and compare last case. {t) Buytfs case, ante, p. 803 ; IVilUam^ case, 1 Ch. D. 676. 806 WINDING UP BY THR COIinT. IJk. IV. Ghttp. 1. to enforce his right of iiulcmnity, and ho rencli the cfnUii nw Sect. 10, • 1 » \ ' — truHt, hus not bcon decided (it). KfHignatinii of A trustee wlio is a shareholder does not terininato liis liability to the company by a mere resignation of his oflico, in order to do this he must transfer his shares or in snnip other way cease to he a shareholder {v). Mortgngccs. Price and Brown's cnsc 10. MortgnfieeK. The principle on wliich a trustee is made a contiibuton applies to mortgagees Price and Brown's case (x) shows that a person who holds shares only as a security for a dcltt, and is known to do so bj' the directors of the company, is as much a contributory as if he were the absolute owner of sucli shnies, But an equitable mortgagee of .shares is in the same positiDii as a ceahii que truHt, and not a contributory (/y). Ii a com- pany borrows money on the security of its own shares, which are transferred to the mortgagee, it has been held tiiat the mortgagee will not be a contributory and that the Court will rectify the register so as to give eftect to the real intention ut the parties (z). But this ro(|uires reconsideration, and seems inconsistent with the cases that show that persons legisteieij as holders of shares are contributories, although tliey linjii them in trust for the company [a). (u) See Hemming v. Maddirk, !) Eq. 175, uffinnecl 7 Ch. 395; Mcuwi/ V. Allen, 9 Ch. D. 164, iintl nritixlt Nation Life Ass. Assoc, 8 Ch. D. at p. 708. If the trustee were nuuU- bankrupt, his trustee in Ijankruptcv could, ii, is conceived, enforce tlie right to indenniity ; and what was recovered would be distributable like the rest of the bankrupts estate. (y) Alexmider MitchelVs case, 4 App. Ca. 548 & 567 ; liutlterfurd's case, ib. 548 & 581 ; Bmhan's case, ib, 549 & 583 ; Ker's case, ib. 549 iv 598. (x) 3 De G. & Sni. 14(i ; Wdn- .^lu'im's cuse, 8 Ch. 831 ; Jioijal Ikiik of India's case, 7 E4. !)1, and ■) Cli. 252 ; Addison's case, 5 Cli. 294. As to the niorlf^agee's riglit to iudiiii- nity from his niortgaj^'or, see Plnr V. Uillan, 5 Ha. I. (1/) Siclull's case, 3 Ch. 119,whire, iiowever, the company had rel'u-fii to register the mortgagee. See, iil-o, Gray's case, 1 Ch. D. 664. (a) Houth-Kaskrn Rail. Co.'s dam, 14 Eq. 10 ; Beattie v. Lord Eb\iry, L. R. 7 H. L. 102. (a) Chapman and Barker' 1 cm, i Eq. 361, ante, p. 805. CONTRIBITTORIKS.— MARUIEn WOMRN. 807 3lich thf rciitui (jKc not terminnto l\i9 iition ol" his olVuo, hIiuvph or in sm\c lucle a coiitvibutiii'v I case (x) sliows that ty tor a dolit, nnd is inpaiiy, is as imulia wner of sncli shares. ill the same position tovy iy). 1»' 11 ''"in- s own shaves, wliicli , been held tliat tb I that the Court will the real intention of ideration, and seems .t persons veyistereil although tliey Imia G. & Sin. 1 40; (Kil»--i"- [lis mortgagor, .see «i"i' iia. 1. I«'scast', 3Ch. I19,whcre, lie company IukI ret'u*l ],he mortgagee. See.aKo, 1 Ch. D. 6«4. i^ea««ie v. Lnrrf i'dwyi L. 102. LiaJi ant/ Jiarker's cmJ \ite, p. 805. Hk. IV. niiup 1. 11. PprsmiR under (lisahiliti/, — '■ — '■ — '■ — a) Companies hnldimj nhnren in othfr cnuipnnieo, \ company holdinf^ Hhints in another company is a contri- ''"iiuwnieit • holding Hhaiei. biitory in respect of sucli .shares, unless to hold shares is lit'vond tlie power of the shareholding company (/<). It is not iicicssftry that the transfer to the holding company should be rticiitcd by it under its corporate seal (c). Partners who hold simrcs in tlu; name of their firm are contributories iu respect iifthem((/). h) Married women and their hushands(e), Hfifore the Married women's property act, 18H2, i^ was Marrie.l women decided that n a company cliose to deal with a married woman as a principal, and not as the agent of her husband, and she being known to the company to he a married woman, was alliiwed to become u shareholder in her own right ; and if fui'ther, by the rules of the company, her husband was not a sliiueholder in respect of her shares, and she had no separate estate, then, on the winding up of the company, neither she 11(11' her husband was a contributory. Not the wife, b'jcause she was not capable of binding herself by contract ; not the Imsbfiiul, because, cv lii/potlicsi, he had nothing to do with the sliiires or the company, and the latter had not dealt with his wife as his agent (/). In Aufias's casi' ((/), a hidy known to a AnKanVs paso coiiipany to be married, bought shares, and was accepted as a slaveholder iu respect of them, without any participation on j the part of her husband. He received the dividends, but [always as her agent; he attended meetings, and once held a I proxy for another shareholder; his name had been placed on the list of shareholders, but this had been done without the krinwledge either of himself or his wife. He was held not to (')) As in Kx parte British Nation lli> Ass. Asm., 8 Ch. D. G79, unci j.'te E.r. parte Contract Corporation, ',i jCh. 10.') ; Royal Bank of India's case, hi'i. 252, and" Eq. 91. ,^) lb. (rf) Weikershnm's case, 8 Ch. 831. (c) See ante, ]). 41. (/) Ex parte Rhodes, 7 W. R. 510. (f/) I De G. & S. .560. Compare Luard's case, 1 Ue G. F. & .1. 53:5. 808 WINDING TJP RY THE COULT. Bk. IV. ChHp. 1. be a contributory ; for, by the rules of the companv, lie was Sect. 10. 1111. ' /. 1 1 — not a shareholder in respect oi ner shai'es. London, Bombay, and Mediterranean Bank. Fenuilo share- holder man-ying, Again, in the London, Bombay, and Mediterranean Bank[i), a merchant applied for shares in a limited company in the name of his vife : and shares were allotted to her accorflinplv, The husband subscribed the memorandum and articles nf association for his wife, and paid the deposit money and all calls made on the shares for her, and subsequently transftmd some of the shares, executing the transfers in her name or nii her behalf. The wife had no knowledge of any of these transactions. The wife's name as " M., the wife of S." wns on the register. She had no separate estate, and the lif|iii- dator soiiglit to put the executors of the husband, who was then dead, on the list of contributories, on the ground tliat the husband was the true owner of the shares, and that llie wife's name had only been used to enable him to escape lia- bility. V.-C Hall, however, held that the liquidator was not entitled to do this, as the company had accepted the wife as a shareholder without any misrepresentation or concealment on the part of the husband. The case of a woman holding shares and marrying is speciallv provided for by the Companies act, 1862. In such a case liti husband is liable during the continuance of the niuriiagL- to j contribute what she would have been liable to contribute italic had not married (A). She also is liable in respect of Lir [ separate estate, if any, under § 13 of the INIarried woniius property act, 1882 (/). Further, in the event of her suniviiioj her husband, she will be liable in respect of such shares isi). I Both she and her husband ought therefore to be on the li^i His liability does not appear to be limited in this case to ili amount of the property he acquired from his wifeUi); l*"'""] (t) 18 Ch. D. 581, iuiil compare Piujh ffc tihannan's case, 1 3 lilq. .OGli. (A) Coiuijarc §§ 78, and 38 & 74, and see Kx parte Hatcher, 12 Ch. D. 284, decided on this act and the Married woni(;n'.s property act, 1874 ; Bell's case, 4 App. Ca. 550. ll sequeutly transfernd vs in her name ov "ii )ge of any of tlie^e the wife of S." wib estate, and the \v\m- he hushand, who was 3, on the ground tliat 3 shares, and that llie ,le him to escape lia- ,he liquidator was not accepted the wife as a Lion ov conceahiieut on [id marrying is speciallv 2. In such a case lift nee of the nnu-nane to blc to contribute if 4ie ble in respect of l*r | the ISIarried wonuu's event of her suvviving I )cct of such shaves will. I ioVG to he on the list ted in this case to ik om his wife l») ; 1>"^ ''I Ibid, and see uiiacf iIk^'J ■irlinsun's case, 3 U*; '' *■'[ ,<««•'« case, il^.'-i«i"/'t; 157 ■ Kluht's casc,3U). By the Married women's property act, 1882, shares stand- Effect of Mar in« in the sole name of a married woman are deemed to belong property act, to her for her separate use unless the contrary can be proved (p), ' and lier husband ought not now to be put on the list {q) in respect ofthcni unless his wife held the shares before her marriage (r). Siie will be liable to be on the list in respect of her separate estate (s), but not further : so that if she has no separate estate except the shares in question and the company is not solvent no one will be liable to contribute in respect of her shares. If shares belonging *.o a married woman having separate estate are held by trustees for her, they will be the contribu- tories, and will be entitled to indemnity out of her separate estate (0- If the married woman is herself a trustee she and her husband ought apparently to be both on the list (w). c) Infants. The writer is not aware of any case in which nn infant has infa-it slmie- been put on the list of contributories. Upon principle, how- ''°''^°''^' ever, there does not appear to be any reason why he should not, if it be for his benefit ; and this, if there are surplus assets, may be the case (.r). Except, however, where it is for an infant's benefit to accept shares, and with them the burdens attaching to them, it is not easy to see how an infant can be held I tcl'B a contributory. In the ordinary case of an insolvent com- (0) See note {I). (j)) 4;J&46 Vict. c. 75, ^§ (i & 7, |(iii(«, p. 42. (?) See ib. §§ (5 and 13. See, as Itothe old law, Luard's case, 1 \)'i G. If.&J. w:^. \r) «ee Ex parte Hatr'er, 12 (,"h. |D 284, notii.'fd above. >) So under the old law, see tMMmmun's case, 3 £([. 781 ; f-wrd'i cane, 1 Ue G. F. & J. 533. (1) Ikller V. Cumpston, 7 Eij. !«, Hill see ante, p. 801 et seq., as to tniatees. (u) See IklVs case, 4 App. Ca. 547, the order nude as to Janel Hill, !>. 5G2. (j;) See ante, p. 39. The 39th section of the act of 1843 (11 & 12 Vict. c. 45, § 39), which enacted that if any contributory were a minor, he mi,i,dit attend the pro- ceedings in the windinj; np by liia father or guardian, evidently con- leir plated the j)0£sibility of an in- fant's being a contributory. m 810 WINDING UP BY THE COURT. Bk. IV. Chap. ]. pany, the infant's shares would be repudiated (y). I'lie principle acted on in Onkes v. Turqnaud {z), has never been njipliod to in- fants. If an infant fraudulently represented himself as of age, he might perhaps be fixed (a) ; but nothing short of tliis can it is conceived, deprive him of his right of repudiation. Even if he signs the memorandum of association, he will, it is sub. mitted, not be bound (/>). If an infant shareholder does not repudiate his shares either whilst he is an infant or within a reasonable time after he attains twenty-one, he will bo a contributory (c) ; « fnrtiori will he be so if, after attaining twenty-one, he does anything incon- sistent with his right of repudiation, e.g., acts as n shareholder, receives a dividend, or pays a call (rf). "But if he is an infant when the winding up commences, or if he is not then pre- cluded from repudiating his shares, he does not lose that riglii by mere delay. Thus in ShrapneWs case (e), an infant who had applied and paid for shares, and had paid calls, and received dividends, attained his majority one week before the company stopped payment ; three months afterwards he was settled on the list of contributories after due notice, but he paid no attention to the notice, and allowed the time for varying the I chief clerk's certificate to expire. A call was afterwards made I upon him as a contributory, and he then took out a summons | for leave to apply to vary the chief clerk's certificate puttiiij him on the list. This leave was granted on payment by the I infant of the costs of the api)lication. He then applied tn viin the certificate, and to be removed from the list of contributories, arul he was struck oft". He had done nothing after attainini! twenty-one which could be regarded as an election to take the shares, and his I'epudiation was held not to be too late(/). It Shrapnell's case. (1/) See Beid's case, 24 Beav. 31H. (z) Ante, pp. 753 and 776. (a) See IVright v. Snowe, 2 De U, & S. .321. (/)) See §§ 11 & 18 of the Com- panies act, 1862. § 18 renders the infant a member, but does not ex- clude hi.s rijjht to repudiate. (c) EbbeWs case, .5 Ch. 302, See ante, p. 39, and the next note. See the curious case of a female infant trustee marrying aftur sin- attaiiini| 21, Bell's frt.sr, 4 App. C'a, 54;; Jand Hill's case, p. h&2. (d) Lunisden's cnsi, 4 (.'h. 31 ;| Mitchell's case, 9 Eii. 363. (e) Shrajmell's casf, /iV i'liwul Banking Co., before Lord Roniil!),[ at Chambers, 24 April, 18(j7. (/) See, also, Mann's case,'i li- 459, note ; Capper's case, ib, 4>;j Hurt's case, 6 Eij. 512 ; CurtU's ml CONTRIBUTORIES. — LUNATICS. 811 has been decided in othei' cases that a person who was an Bk- IV. Chap. l. iiifiintwhen the winding n\) commenced cannot on his attain- ' ^^L- lint' tweuty-one elect to hold shares transferred to him, and thereby defeat the right of the company to reject him, and to hiive his transferor put on the list in his place {g). The right of a company to reject an infant transferee, and Riglit of the I to put his transferor on the list, is clearly established (/<) ; but reject an infant. 'bis ri^ht may be lost by the company's own laches prior to the I winding up (0 ; and if an infant transferee has himself trans- Ifened his shares, and his transferee has been accepted as a ishiueholcler, the transfer to the infant cannot be treated as a I nullity (A.). Wliere shares ai'e taken direct from the company in the Inaiaes of infants, the persons who really take them, and not I infants, will be contributories (1) ; unless the infant and the Icompauy are precluded from repudiating them. Even in the lease of a transfer to an infant, if his name is a mere alias for ■that of some other person, such person may be put on the list, land the company although entitled to fall back on the trans- feror is not bound to do so (w). d) Lunatics. The writer is not aware of any decision on lunatic contribu- ftries. The principles applicable to them have been already liluded to (see ante, p. 40). „., bufoiv Lov.1 Roniil!). Ibors, 24 April, 1867. lee also, Mam'a casf,i l: 4')8; JVeston's case, 5 L'li. (il4 ; ioys case, 7 Ch. 115, where there p >ome evidence of adoption. ] [}i .Si/moHs' case, 5 Ch. 298 ; Cas- in's me, 8 Eq. 504. I (A) See the last two notes. j ;i) l'ur.ion'6 case, 8 Eq. 056 ; ilfcw- tfscaM, 24 Beav. 321. (k) Gooch's case, 8 Ch. 266, rever- sing S. C. 14 Eq. 454. (I) See JVeston's case, 5 Ch. 614 ; and compare London, Bombay, and Mediterranean Bank, 18 Ch. D. 581 ; Pu!/h and Sharman's case, 13 Eq. 5(56, and cases ante, p. 803. (m) Richardson's ease; 19 Eq. .")88. B»r 812 Bk. IV. Chap. 1. Sect. 10. Execntors of deceased Bliarc- hcldera. WINDING UP BY THK COURT. 12. Representatives. a) Executors, heirs, and devisees. If shares are registered in the names of more persons than one, and one dies, the survivors and not his executors are con- tributories in respect of them(«). Although tlie executors of a deceased shareholder mav not be themselves shareholders, they will nevertheless be liable to be placed as executors on the list of contributorios iiirespectof the shares held by their testator (o). Moreover, an executoi is liable to be made a contributory as executor, if his testator was virtually, although, owing to the non-compliance with certain j forms, not perhaps strictly, a shareholder {])). So, altlioii(!li the shares were such as the directors had no right to create hji, or, although more than three years have elapsed since the tes- 1 tator's death, and the company is one in which sliarelioklfrs are not liable to crcjditors for more than three years after tlieir retirement (?•) ; or, although the debts of the coiiii)anv have been incurred since the testator's decease (s) ; or, although tlie executor swears he has no assets, and has wound up estate (t). Even if a share has beeii bequeathed and the txe-j cutor has assented to the bequest, he will still be a contribu- tory in his character of executor, if the legatee has not beeiij accepted by the company as a shareholder in respect of tliel share in question (it). If the executor is himself legatee, lie| («) Hiir.-i mse, 20 Eii- 585. Tlie executors might be put on as repre- sentiuf,' a past member. (o) 25 & 2« Vict. c. 89, §§ 76, 99, 105. Baird's case, 5 Cli. 725 ; Thomas's case, 1 De G. & S. 570. (p) Hlraffon's Executors' case, 1 De G. M. & G. 576 ; E.r parte Dixon's Executors, 1 Dr. vS; .Siii. 225. (q) Robinson's Execiftorti' case, 2 ]Je O. M. & G. 517, and V.i .lur. 438, ■where a deceased director had taken shares whicli the company might have repudiated. Compare ante. 774. (r) Gouthwaite^s case, 3 Mac. & (I. 187. See, also, I'ouis v. Iklh 3| C. B. N. S. (J45, and 4 ib., 4(;9. (s) Baird's case, 5 Cli. 7:^5 ; h\ parte BlaJceley's Executors, 3 .Mac. G. 726, and 13 Heav. 1.33 ; i/fl»"i'J Devisees' case, 2 De (J. M. & CSffij (1) Thomas's case, 1 De (I i i| 579 ; Crosjield's case, 2 Ue G.M.I G. 128. See Hemlrsmi sJiiWA 17 Jur. 570, ante, p. b^l. (?() Ketne's Executors' ccm; :i G. M. & G. 272 ; CVos/fW's -.^ 2 ib. 128, and 4 De G. & S. 338 j Havier's Devisees' case, 2 Di> il. & G. 3m, and 3 De G. i : 279. lURT. CONTRIBUTORIES. — EXECUTORS, ETC. 813 sees. of more persons tlian his executors are con- :1 shareholder may not ivertheless be liable to tributories in respect of ! loreover, an executor is ;utor, if his testutuiwas j compliance witli certain Ider ii)). So, altlioii(!li id no rif^ht to create (5), e elapsed since the tes- ! in which shareholilPB n three years niter ilieit j ;s of the company have ivse (s) ; or, ultliougbilie ind has woiuid up the jequeathed and the exe-! vill still be a cuntiik- e legatee has not bteiij older in respect of tkj V is himself legatee, liej k'e, also, PokU v. Butkr. 3| '. S. ()4r), !\ii(l 4ib., 4(19. Lird's case, 5 Ch, 725;ij| \lakelcy'.i Executors, 3 Mac. and 13 Beuv. 13;3;HwV(| L'm6T,2l)ni.M.&0.366 |7io)/i«.sV« case, 1 De C,. k ; ['rosJieUrs cane, 2 De G. M. J Sec HemUrsmi v. (Mn^ 570, ante, p. 537. [ecnes KxiTUtort:' en.*, :) ' & G. 272 ; Crosjidi'f -^ IS, ami 4 Ue G. & S. :!38j [s Vevisccs' case, 2 De " l(i. 3()6, iuitl 3 De G. i ! will be ft contributory as executor only until he has himself ^^- ^- ^'^^v- !• been accepted as a shareholder (v). But if a share is bequeathed and the executor has assented When executor to and the legatee has accepted the bequest, and t.m company has accepted the legatee as a shareholder in respect of such share, then, on the subsequent winding up of the company, the lef^atee and not the executor is the person to be made con- tributory {x) ; and if an executor applies to the directors to Ei^oct of wind- know what shares his testator had in the company, and is told of deceased on none or a certain number only, and the executor acts upon the .stftenlent^^mado faith of this statement and winds up the estate of the deceased, ^y '■'"» company, transferring those shares, if any, which, according to the state- ment of the directors, belonged to him, and the company is afterwards wound up, the executor cannot be made a contribu- tory ; altlioiigh his testator may in fact have had shares in the company other than those mentioned by the directors (y). The official liquidator is entitled to bring an action for the Rights asainat administration of the estate of a deceased shareholder, and to "''' ■* prove against the estate for all calls made and to be made, and he is entitled to have a fund set apart to meet such claim (z). If a deceased shareholder's personal estate is insulBcient toiioiraand pay his debts, his heir or the devisees of his real estate may be *,oaity. * made contributories (rt). They may be added to the list when it becomes necessary to have recourse to them (b). After the shares of a deceased shareholder have been duly Effect of transfer by cxjcutor. {>:) Dulmer's case, 33 Beav. 435. (/) See the cases cited in the last two iintce, and jiost, under the head Rttiied sliareliiiliU'i s. CioffiekVs case, SDeG, M. & G. 128, and 4 De G. & S. 33S, may be refined to with re- fewice to tliii iicceptauce of one of weui e.'ieciitors as a Rliarcliolder. Sec, too, Pirn's ease, 3 De G. & S. 11. (j) Meux's Executors' cape, 4 De I'.&S. :i3i, and 2 De G. M. & G. 522. (;) 25 & 20 Vict. c. PJ), §j 76 and 95, d. 7, Re MiKj/inidje, 10 Eq. «3; Buck v. liukon, 10 Eq. C29 ; Turquand v. Kirby, 4 E([. 123. E.xecutora of decea.sed shardlioldera in going companies cannot eafely pay Ifcgacica without providing for future calls, see Taylor v. Taylor, 10 Eip 477. (ft) 2.5 & 26 Vict. c. 89, §§ 76, 90, 105. Havur's Devisees' case, 2 De G. M. & G. 3(;6, reven;ing S. C, 3 De G. & S. 279. See Browjhton V. Hutt, 3 De G. & J. 501, as to settin,!; aside deeds executed by heirs or devisees on the assumption that the shares were real estate. (b) 23 & 20 Vict. c. 89, § 99. 7'^'^SW mK^m^ 814 WINDING UP BY THE COURT. Executors be- coming share- holders. Bk. IV. Chap. 1. transferred by his executors, i\ey cease to be liable to be made contributories in respect thereof. This will be seen hereafter when the position of persons who have ceased to have any con- nection with the company is being considered. It may how. ever here be observed that, unless the constitution of a companv warrants the surrender of shares, executors who suiTender tlie shares of their testator do not thereby get rid of their lia'A to be inade contributories (c). If executors themselves become shareholders, they will be contributories, without reference to the character in which tliev became entitled to the shares taken b}' them. Thus, where tlie directors of a company offered reserved shares to the share- holders and the executors of deceased shareholders in propor- tion to the amount of their original shares, and the executors of a late shareholder accepted some of such reserved shares, but Accepted them only in their representative character, they were .. „rtholess put on the list of contributoj'ies in respect of tliese shares without any qualification (d). Executors, however, do not render themselves personally liable as shareholders by keeping a testator's shares and receiving the dividends until the shares are sold (e) ; and even if the shares of the deceased are I'egistered by the compr.nv in j the names of the executors they will not be personally liable unless they authorised or ratified the registration {/). (c) Ex parte Richmond's Executors, 13 .lur. 727. (d) Fearnside and Dean's case, and Dobson's case, 1 Ch. 2.31. See, also, X>h/'s Executors' case, 32 Ch. D. 301 ; Jackson v. Turquand, L. R. 4 H. L. 305 ; Spence's case, 17 Beav. 203, where the executors had purchased shares. Compare Pirn's case, 3 De G. & S. 11, where the acceptance by the executor was held not to bind hini. In Mallorie's case, 2 Ch. 181, the applicant was not executor, but acted for him. (e) See Bulmer's case, 33 Beav. 435, where the executor was legatee of the shares. See, also, ArmstmiJ! case, 1 De G. & S. 565 ; Gindhmii'!i \ case, 3 Mac. & G. 187, and 3 DeG. & S. 258 ; Doyl^s case, 2 Hall & T. 221 ; Hamer's Devisees' case, 2 DeG. M. & G. 366 ; Crosfield's case, ib. 12;, I and 4 De G. & S. 338. InPinsl case, 3 De G. & S. 11, the sliaifs exchanged by the executor were in no sense his testator's. See tlie analogous case of trustee's in uant- ruptcy, noticed infra, note («). (/) Buchan's case, 4 App. Ca. bi^ ] at p. 589. OURT. C0NTRIBUTOR1E8. — TRUSTEES IN BANKRUPTCY. 815 to be liable to be made will be seen hereafter, eased to have any con- sidered. It may how- istitution of a company tors who surrender the et rid of their ha'A reholders, they will be sharacter in which tliey them. Thus, where tlie id shares to the share- hareholders in propor- :s, and the executors of a jh reserved shares, but ,ive character, they we ,oj'ies in respect of these b) Trmtees in bankruptcy. Bk. IV. Chap. 1. Sect. 10. ■ed by tlie company in | not be personally liable j gistration (/). ere the executor was legatee i lares. See, also, Amsimiji j 3e G. & S. 565 ; GmUhmUti j ;ac. &G. 187, and 3 DeC' ; Doyys disc, 2 Hall & T. mer's Decistcs' case, 2 DeG. 366 ; Crosfield's case, ib. 12J. I )e G. & S. 338. InPtVij De G. & S. 11, the stej id by the executor were in his testator's. See tlif| IS case of trustee's in mi- loticed infra, note (n). W/ian'sc(WC, 4 App-CuStf, A bankrupt member of a company being wound up under Po.sition of the the Companies act, 1862, who has obtained his order of dis- ""^ "^"^ * charge under the Bankruptcy act, 1869, or under the Bank- ruptcy act, 1883, is not a contributory either as a present ((/) or as a past member (h) ; nor was he under the older acts, unless he retained his shares and remained a member after his order of discharge, and the company was ordered to be wound up at some subsequent period, in which case his order of dis- charge did not protect him (i). By tlie Companies act, 1862, the trustee of a bankrupt con- Position of the trihutory represents him, and is " deemed to be " a contribu- J™'^^^ '" '^*°''" lory accordingly, and can be required to admit to proof against the bankrupt's estate what is due from him in respect of his liability to contribute (k) ; and not only calls already made, but the estimated value of those to be made, may be so proved (l). The expression " deemed to be " leaves it uncertain whether the trustee ought to be settled on tlie list of contributories or not; but it is clear that he cannot be made a contributory in any other than his representative character, unless he does something to render himself a shareholder (m). The payment of calls to preserve the shares from forfeiture, and the receipt of dividends paid in respect of the shares, does not render a tnistee in bankruptcy liable to be made a contributory per- sonally («)• If the company being wound up is insolvent and the bank- Disclaimer by trustee. Ir. Rep. 6 Eq. 272, and ante, p. 556. (k) 25 & 26 Vict. c. 89, § 77. ll) lb., § 75, and 46 & 47 Vict. c. 52, § 37 ; Mercantile Mutiuil Marine Ins. Assoc, 25 Ch. D. 415. (m) Stone's case, 3 De G. & S. 220. {n) See, as to paying calls, Stone's case, 3 De G. & S. 220, and as to i-e- ceising dividends, Aiinstrong's case, 1 De G. & S. 565. See, too, South Staffordshire Rail. Co. v. Burnside, 5 Ex. 129. See the analogous case of executors, ante, note (e). {(J) 25 & 26 Vict. c. 89, §§ 75 and 11. See Ex parte Marshall, 7 Ch. 324 ; Ex parte Budden tfc Roberts, 12 Ch. D. 288 ; Mercantile Mutiud \knne Ins. Assoc, 25 (^h. D. 415. A bankrupt contributory is a i stranger to the company, Cape Mm Co., 19 Ch. D. 77. [h) McEicen's case, 6 Ch. 582. (») See Ilastie's case, 4 Ch. 274, I and 7 Eq. 3 ; Martin's Patent Anchor Co. V, Morton, L. R. 3 Q. B. 306 ; Fkmcial Corporation v. Lawrence, I E. 4 C. P. 731 ; Ex parte Malo7ie, 816 WINDING UP BY THE COURT. ^''•g^^-^*^|'*P-^- rupt's shares are not fully paid up his trustee can disclaim them ; and in that case the company can prove for (laina"e3 against his estate (o). Where a call is provable, an order under the ComiMnies act, 18G2, for its payment ought not to be made, even ultiiou'ih the shares may be standing in the name of the bankrupt {p), Late aha" lioldon. B. — CoNTRIBUTOniES AS PAST MEMBERS. General observations on past members. The liability of shareholders, and of persons who are bouiifi to take shares, at the time of the commencement of tlie winding up having been now examined, it is necessary to advert to the position of persons who would have been contii- butories if they had not ceased to hold their shares before the time in question. The liability of a retired member of a company to be placed on its list of contributories depends primarily on tlie efTect of the retirement as between himself and the other members, iml secondarily on ito effect as between himself and the creditori of the company. The extent to which a member of a company who leaves it gets rid, as between himself and the other members, of his obligations to contribute with them to the discliaige of the debts and liabilities of the company depends theoretically on the constitution of each particular company. Practiciillj', lioiv- ever, it will be found that, as a general rule (q), a member ofa company, whose shares have been duly transferred, sm'renderal, or forfeited, is discharged, as between himself and tlio oilier I members, from all liability as well in respect of past as of future transactions: the acceptance by the company of the j transfer or surrender, or the declaration by the comi)anyoft (o) 4G & 47 Vict. c. 52, § 55. See ante, p. 553. See under the act of 1869, Ex jiart: Budden d Roberts, 12 Ch. D. 288 ; llardij v. FothenjUl, 13 App. Cii. 331. ( p) MitcMl's cue, 5 Ch. 400. (g) There are exceptions, as in Helby's case, 2 Eq. 167, ami othfiso:| that chiss, noticed infra, lly its Stannaries act, 1887, 50 & M Vn'. c. 43, § 22, the rolinriui.sliiiidn' ot»j share in a mine 8ul)Ject to thiticij has no effect if the coiniwnyjiei| into liq^uidation within six wecki [IT. C0NTRIBUT0RIE3 — PAST MEMBERS. 817 riistee can disclaim 1 prove for dainnges ider tlie Comp;\nie3 made, even i\Uhou!;li [ the bankrupt (jj). MEMBERS. members. ersons wlio nrc bound )mmenccmeiit of tlic 1, it is necessary to luld have been coiitri- leir shares before the , company to be placed marily on tlie effect of lie other members, (ind self and the creditors lompany who leaves it )ther members, of liis the discharge of the spends theoretieally on tiiy. Practically, \m- [rule iq), a member of a .•ansf erred, surrendered, himself and tlie other respect of past as of y the oomi)ar)y of the \ by the company of tlie Le,2Eq. 167,rina<.lk.«o; [ss, noticed infra. I'-v ll« I liesact, 1887, 5i)&r.nic'. |22, tlic relimiuirtliincn' oU , amine aubjeet to lliiti« felTect if the company S«| liidation within six weeki forfeiture, being, generally speaking, equivalent to a release by Bk- IV- Chap. l. the company of the member whose shares are thus dealt with, -- — - ' — from all liability in respect of them. Where this is the case, be is not hable, on the subsequent winding up of the company, to be put on the list of contributories with the present mem- bers ; and his liability to be put on the list at all can only arise from some necessity of having recourse to past members in order to pay the debts of the company or to adjust the rights of such members inter se. Under the Winding-up acts of 1848 and 1849, the liability Under the Acts of a late shareholder to be made a contributory depended upon 1849. I the simple question whether he had, as between himself and the company, got rid of the obligations which, by supposition, he was once under. If he had, he was not a contributory with the existing members, whatever his liability to creditors might have been; whilst if he had not, he was a contributory, although he might have been under no liability to the creditors at law (r). But there might be, and, in fact, there usually were, a considerable number of retired members who, although Uit liable to contribute with the existing shareholders, were, |a< between themselves, liable to contribute to the payment of [those debts which were enforceable against them at law, and Ivhieh the existing shareholders were unable to discharge. The question then arose whether these transferors ought not Ito be contributories, seeing that they might be ultimately Icalled upon to defray debts of the company, although they Iwe entitled to be indemnified against such debts by the jexisting shareholders. This question was formerly answered 1 the affirmative (s) ; but the later practice was not to make kuch persons contributories until it actually became necessary I do so, in order to prevent one or more of them from bearing Bore than his or their share of loss. In other words, retired Iharehoklers were not placed on the list of contributories (r) See Ex parte Gouthwaitc, 3 pc. & Q. 187 ; Stirling's case, 6 Ir. pi. 180, and the cases in the next ^0 notes, ! (*) Ei parte Morgan, 1 Mac. & G. fc ; Hawthorn's case, 1 De G. & S. I.C. 571, and on appeal, 1 Mac. & G. 49. The transfer took place within, and not (as stated in the marginal note in 1 De G. «& S. 571) more than three years before the winding up of the company. S a 818 WINDING UP BY THE COURT. i ^^ sit ^10^' '' ^^'"P^y because they might possibly be called upon to mnk' good losses which, as between themselves and tl;' existiur shareholders, ought to be borne by the latter (<). Before tli> retired shareholders could be made contributories, it had td k shown that there was some necessity for putting them on tin list for the purpose of equitably adjusting these claims against each other (u). Under the Com- This practice is also followed in winding up companies ' ' under the Companies act, 1862 (x) : and a person improperlv put on the list as a present member will be struck off the list altogether, although he may possibly be put on again as a past member. Nor is it necessary when striking him off the list (i.e., the list of present members), expressly to reserve, or ti add without prejudice to, his liability to be put on the Hstasa past member. The removal from the list of a person sought to be put on as a present member is understood in practice to leave open for future decision the question whether he ouglit to be on the list as a past member (y). In winding up companies under the Companies act, I86i and in considering the liability of a person who was a share- holder before, but not at the time of the commencement of tlif winding up, to be put on the list of contributories, it is neces' sary to distinguish, — 1. Unregistered companies ; 2. Companies registered but not formed under the act; 3. Companies formed as well as registered under the act 1. The liability of a past member of an unregistered com pany depends on § 200, which contains no statutory limit to the time after which a past member ceases to be liable. Hii 1. Unregistered companies. («) Garew's case, 7 De G. M. & G. 43 ; Sutton's case, 3 De G. & S. 262 ; Holme's case, 4 ib. 312, and 2 De G. M. & G. 113 ; Ex parte Stirling, 6 Ir. Ch. Rep. 180. (u) Compare the cases in the last two notes, and observe that in Hawthorn's case, the transferor was made a contributory at the instance of a person in the same position as himself. (x) See § 170, now repealed IjH & 45 Vict. c. 59. See, as to Wj case, 10 Eq. 622, infra, note (4 {y) See Wright's case, 12 Eq.33i See pp. 345-6, per L. J. Selw;i| Where, however, the register i members, as distinguished from i list of contributories, is rectifieij may be necessary to add, ^m prejudice, &c., see Marshall v. 'ilj morgan Iron, dtc, Co., 7 Eq. ) URT. CONTUIUUTORIES — PAST MEMUERS. 819 called upon to iiink" veB and tl;' existi.^n latter (()• l^e^^re the ibutoriea, it had to be : putting them on llie i{» these claims against binding up companies ] id a person improperly 1 1 be struck off tiie list | ! put on again as a past triking him off the list )ressly to reserve, or to I be put on the list ass I 1 list of a person sought! inderstood in practice to I lestion whether he ought de Companies act,186il person who was a shar^| |he commencement of the! ontributories, itisneces- [rmed under the act; ristered under the act, fof an unregistered com-| lins no statutory limit! •ceases to be liable. See §170, now rei Vict. c. 59. See,a8toP.rfl 10 Eq. 622, infra, note (s). See Wright's case, 12 Eq» pp. 345-6, per L. J. S«l'^' te, however, the regisUt ber8,a8di8tingui8hedfton. |,f contributories, is w^ Ibe necessary to add, wit^t^ Idice, &c., see^farsyiv- fan Iron, dtc, Co., 7 Eq. 1 position, therefore, depends on liis liability to existing creditors, Bk. IV. Chap. 1. , , Sect. 10. and on the constitution of the company of which he was a - — — member. It very rarely, however, liappens that a past member can be put on the list by reason of any rights which the present members have as against him : and speaking generally |no past member of an unregistered company is liable to be on jthe list at all, unless there are debts to which he was liable Ibefore he retired, and unless the present members are unable |to pay such debts (z). With respect to cost-book mining companies the Stannaries CoatWk jict, 1869, renders past members not i able to be put on the list """*'*'■ ftliey have ceased to be shareholders for two years or upwards liefore the mine has ceased to be worked, or before the date of he winding-up order (a). 2. The liability of a past member of a company registered, 2. Companiea -i -1 registered umlisr rat not formed under the Companies act, 1862, depends on the Act of l8t)>, 1 196, which renders § 38 applicable to the company from the „nde"r°it.*"™'" |ime of its registration (h). But this is subject to the im- ertant qualification that the liabilities of members at the ne of registration to their existing creditors are preserved iee§§ 195, 196, cl. 6, and § 197). Consequently, in dealing lith companies of this description it is necessary to subdivide ppast members into three classes, viz. : — (a.) Those who ceased to be members before registration. (6.) Those who ceased to be members afterwards, but more than a year before the commencement of the winding up. (c.) Those who ceased to be members after registration, and less than a year before such commencement. I.) As regards the first of these classes it seems that they Class (a) not liable to be put on the list of contributories of the pstered company, never having been members of it (c). But f) See Port's case, 10 Eq. 622. i this case, there were present fihers capable of paying the in respect of which Part \ helc' liable, the decision was ; conformable with the usual tice, (a) 32 & 33 Vict. c. 19, § 25. See Ghynoweth's case, 15 Ch. D. 13, and see ante, p. 816, note (g). (6) Ramsay's case, 3 Ch. D. 388. (c) See Lanycm, v. Smith, 3 B. & Sm. 938; and KeU^s case, 9 Eq. 107. 3 a 2 , j , ^ T 8S0 WINDING UP BY TUB COriKT. tm Bk. IV. Chap. 1. if this technical difficulty is got rid of, by an order windiu" Sect. 10. . HI- " the unregiHtered company, as well as the registered coinpimv I the liability of the past members now under considuiati iii will be the same as that of past members in uiirogisttinl companies. Claw (b). {b.) As regards the second of the above i, § 98 f^f, I them from all liability in respect of debts coiitrtidod bvtlie (lompany after its registration ; but §§ 195 to 197 leave thu-e persons who were members before registration i-xposed tJ liability in respect of such debts as existed at thu time >! registration, and at the commencement of the winding up, aDJ as the present members are unable to pay. In respect, tliert- fore, of such debts, if any, such past members of this class niavi be liable to be put on the list. Claw (c), (f,-.) The third of the above classes may include persons wh became members before the registration of the oonipiim, well as those who became members since. The position i those who became members since the registi Men of the coiiiJ pany depends entirely on § 38, and is t' -me as that ol past members in companies formed and ict, red undtrtM act (see § 19G) {d). The position of those who became menibeii before the registration of the company is more compHiattlj for first they are by § 38, under the same liability as those 1 spoken of; and, secondly, they are by §§ 195, 196, ami 1911 liable to be made contributories in respect of debts exi^tia before registration, and still unpaid; and whilst their lialililj under § 38 may be limited, their liability under § 196niavll unlimited. 3. Compiinies 3. The position of retired members of companies ioim^ legistorcd'under ^^^ registered under the Companies act, 1862, is detiikJ the Act. I gg^ Pei'sons who have ceased to be members twelve moni before the commencement of the winding up are not li be i)ut on the list at all ((') ; whilst persons who have oti to be members less than twelve months before that time i liable to be put on the list, but only as past members; ami person is under any liability as a past member unless t| things can be proved, viz. : — 1. It must be shown that there is some undischargeJ J (rf) Ramsay's case, 3 Ch. D. 388. (e) See Gooch's case, W. K 1872, p. • :omiT. rONTIlIIUTTORIES — PAST MKMHKRS. 821 ay an order windiii" up lio ref^istertid company, w under consideration | ambers in uurof^isUivJ j bove S § 38 frtes debts contraclod bylliel I 195 to 197 leave tlio-el registration exposed loj existed at the time of I ,t of the windin;^ up, atiij pay. In vc^iH'ct, there nembers of this class iiiaj| may inchide persons \\\ ition of the company,! since. Tlie position ■ i registi *ion of the comJ \ is t' ~me a? that and icb red under tl .hose who became nierabti iny is more complicateil; same liability as those 1 by §§ 195, 196, and 1 respect of debts exi>tiii ; and whilst their liaV ibility under §196 may 1 bers of companies fornij es act, 1862, is defciP be members twelve monij ndingup are not liable , persons who have ocas' onths before thattin«< as past members ;anJ past member unless is some undischarged Jj Gooch's case, W.N. 1872- P-j ,)r liiibilitv of the company (;ontracted before tlie person in Bk. IV. Chup. 1. ■ . ■ Sod. 10. question retired (/). 2, The Court must be satisfied that the existing members arc unable to satisfy their contributions {()), Hence, as under the (dflor winding-up acts, it is not the Contiiimtories lu |,riK'lici' to put any person on tlie list of contributories as a '''^ mow cisi. past uitinber until the inability of th<' present members to dis- (hiirgc their liabilities is apparent (h). But it is not necessary to obtain IVom them all that they can pay before settling a past member on the list (i). It is now settled that the liability of p ist members is only I to pay those debts contracted before they ceased to be mem- lidN which the present shareholders are unable to pay. The piist members get the benefit of all dividends paid by calls on Ipresfiit members; and their liability is confined to calls in rtspect of what remains of the debts in question. Tt follows It 1)1 this that if these debts are paid or released, no calls can [be made on past members, and they ought not to be put on the Ihl uf contributories (k). Settling a person on the list of contributories as a past iiminber does not of itself decide or prcjudi(e any question as |to his liability to any particular call (l). l*ast members are not sureties ; and a i-ompromise by the Past memhcis lliquidator with present members, even when made without Inotice to a past member, do(!S not discharge him from his lliability to be a contributory, at least if such liability is |reser\ed, as in practice it always is (m). The right, however, Iclapast member to be indemnified by his own transferee is not jttikted by a compromise between him and the liquidator («)• (/) msUm's case, 6 Eq. 17; hntff case, 6 Ch. 8(X), and 8 Ch. ):lVehby.1Vhiffin,h.'R. 5 H. L. nil, (?) See § 38, el. 2 and 3. (/i) See Needluim's case, 4 Eq. 135, md ante, pp. 74<), 750. (i) ^liidreir'.'! case, 3 Ch. 161. See Mirt V. Banner, L. R. 5 H. L. 28, Ftiih shows that the Court will act i the liquidator's estimates, unless they can be shown to be wrong. (),-) See Brett's case, 8 Ch. 800, a rehearing of S. C, G Ch. 800. (l) See Andrew's case, 3 Ch. 161. (m) Hudson's case, 12 Eq. 1 ; NvviU's case, 6 Cb. 43 ; Helbert v. Banner, L. R. 5 H. L. 28. (n) Roberts v. Uroive, L. R. 7 C. P. (529. See, also, Kellock v. Enthoven, L. R. 8 Q. B. 458, and 9 ib. 241 ; Heritage v. Paine, 2 Ch. T). 594. ■'Wf 822 Bk. IV. Chap. 1. Sect. 10. Irregular retirement. Effect of laps* of time. WINDING UP BY THE COURT. Having made these preliminary remarks on the liability of persons who have retired from a company before the com- mencement of its winding up, to be put on the hst of con- tributories as past members, it is proposed to examine the position of such persons more in detail, and to p'^int out wlien they are liable to be put on the list as present members, and when as past members only. It has already been seen that, where a person has, in fact I become a shareholder, he is a c^rtributory, although all piv- scribed formalities may not have been observed (o). On similar | principles, where a person has, in fact, retired from a company, he will not be a contributory (at least as a present member), although his retirement may have been somewhat irregular in l point of form {p). But this proposition assumes that the shareholder had the right to retu'e ; and that liis retirement | would have been unimpeachable if all proper formalities i been duly observed. Where this is not the case, the retired | member will, in point of law, be a shareholder still ; and wil be Uable to be made a contributory accordingly, a* a present I member, subject only to the question whether there is aiivl statutory or other limit of time, after the lapse of which the retirement cannot be called in question. Statutory limit there) appears to be none, unless it be twenty years {q) ; but there is I the highest authority for the proposition that where a person I has retired hona fide and openly, so that all the shareholihrs ought to be treated as aware of the fact, the equitable doctrines! of laches and acquiescence ought to be applied against a| company, and preclude it from disputing the validity jf i retirement (r). (o) Ante, A (2), p. 757. \p) See Taurine Co., 25 Oh. D. 118 ; Bush's case, 6 Ch. 246, affirmed Murray v. Bush, L. E. 6 H. L. 37. Upon the application to such cases of the maxim, ovinia prastimuntur rite esse acta, the following cases are particularly instructive : Lane's ca.sc, 1 De G. J. & Sm. 504 ; Knight's cane, 2 Ch. 321 J fVoollasto^i's case, 4 De G. & J. 437. {q) See § 16 of the Companicsaotil 1862 ; Helby's case, Stake's cast, .inJj Horsey's case, all in 2 Eq. 167. (r) See ante, p. 522 ; itfurra;/ t.j Bush, L. R. 6 H. L. 37; EmnM V. Smallcomhe, L. R. 3 11. L. m affirming Smallcomhe' s case, 3 Hq.j 769 ; Brotherhood's case, 31 Beav.| 365, and 4 Ue G. F. & J. 666. ante, pp. 517—523. See, also, i/u'^ case, 32 Beav. 387. CONTRIBUTORIES — TRANSFERORS. 82d irks on the liability of j »any before the com- it on the list of con- losed to examine the and to p^int out when present members, and Bearing these observations in mind, it is proposed to con- Bk- IV. Chap. 1. Sect 10 sider the liabilitj', to be put on the list of contributories, of — - ' - - 1. Persons who have transferred their shares to others. 2. Persons who have surrendered their shares to the com- pany. 3. Persons whose shares have been forfeited. a person has, in fact, tory, although all pre- bserved(o). On similar | etired from a company, as a present member), somewhat irregular in I ,ion assumes thut the md that his retirement proper formalities had j ot the case, the retired ireholder still; and will .ccordingly, a^ a present I whether there is anv the lapse of which the Statutory limit there years (q) ; but there is lon that where a person] lat all the sharehoWris the equitable doctrinesl be applied against aj ting the validity af tliej ee § 16 of the Companies aot,| Helhy's case, Stake's cmi, anlj ca^e, all in 2 Eq. 16". ee ante, p. 522 ; Murwj v.l L R. 6 H. L. 37; En4 Ikcmhe, L. R. 3 H. L. -2491 ig Smalkombe's case, 3 M brotherhood's case, 31 Beavl ll 4 De O. F. & J. 566. '^4 517—523. See, also, if«''j Beav. 387. 1. Af regards persons who have transferred their shares to others. In considering the position of a person who has parted with his shares to another, two classes of cases must be distin- guished from each other: viz., 1, cases in which the transferee has actually been substituted by the company for the transferor before the commencement of the winding up ; and 2, cases in which there has been no such substitution. n) IVhere the transferee has been accepted by the company in the place of the transferor. If a person has transferred his shares to another, if the Transferors of I transferee has accepted the transfer, and if bo has been accepted contributories. by the company as a shareholder in respect of those shares, I then, on the subsequent winding up of the company, the transferee, and not the transferor, is the person to be made a contributory as a present member in respect of the shares I transferred. .\ leading case on this head is Cape's Executors' case (.?), Cape's Emou- I in which it was held that the purchaser of shares in a banking company governed by 7 Geo. 4, c. 46, was liable as a contri- butory, as well in respect of debts contracted before as in respect of those contracted after he became a shareholder. It was considered that, in the ab.sence of any special provisions linthe company's deed to the contrary, the purchaser took the jshares as they stood, subject to the state of the concern at I'lhe date of his purchase. This may safely be taken to be (<) 2 De G. M. & G. 562, affirming case, 2 De O. M. & G. 1 13 ; Maijhews jtlie decision of the Master of the case, 5 ib. 837, a caae of a cost-book |Rulis,16Jur. 787. See, too, Wolme's mine. tors' case. m 824 WINDING Ur BY THE COURT. Bk, IV. Chap. 1. the general rule ; and it follows from it that, as between the company, the buyer, and the seller, the seller, when he transfers his shares, transfers his liability to be made a contributory. The proposition that in such cases the transferor is not . contributory, is established indirectly by the cases just cited llarrisou's case, and more directly by others; e.g., Harrison's case (<), wheiv the directors assented to a transfer on the terms that tht transferor should guarantee payment of future calls by the transferee ; and it was held that the transferor was not a con- tributory, although the transferee was insolvent. Even where the transfer is in some respects irregular, still if it is intra vires, and the transferee has accepted tlie transfer, and has been accepted by the company, the transferee (h), anil not the transferor (.r), will be the contributory as a present! member. The same rule holds good in the case ot a homt}il' transfer without value (y). But a transfer whicli is wholv invaUd cannot be treated as good, simply by being acteiil upon (0). Even in this case, however, the transferee and iiotj the transferor will be a contributory, if there was in effect an agreement between them both and the company, that the transferee should take the shares instead of the transferor (oi. (t) 6 Ch. 286. For other illustra- tions of the same principle, see Croxton's ca,se, 1 De Q. M. & Ci. 600; Nicol's case, 3 De G. & J. 387 ; Orpen's case, 9 Jur. N. S. 615. (m) Meux's Executors' case, 2 De G. M. & G. 522 ; Straffon's Exe- cutors' COM, 1 De (i. M. & G. 576 ; Sanderson's case, 3 De G. & S. 66, and 3 H. L. C. 698 ; Gordon's case, 3 De G. & S. 249 ; JValters' case, 3 De Q. & S. 149. Compare the cases cited irifra, p. 830 et seq., where the transferee had not been accepted by the company in the place of the transferor. (x) Murray v. Hush, L. R. 6 11. L. 37, affirming Bush's case, 6 Ch. 246^ where the transferor was an outgoing director; Ex parte TAttledak,^^ 257, where the transferor had 1 paid his calls ; Kivington'.i (•!;•■ Ch. D. 10 ; Doman's C(Mi', ib, ;i.| where the transfer had not been it rolled as recjuired liy ait of iiariiJ ment. See, also, the cases in tlie| last note. (y) Maguire's case, 3 De G. x j,| 31 ; Femcick's case, 1 De (J. \ >,| 657. (z) See Chappell's case, G Ch, :tu;j and the cases of scrip, McKum v,| JVest London Wharves Co., H dl 655 ; East Gloucester Rail iV tj Bartholomew, L. H. 3 E.\, 15, wiiiii^ although not contributury casts, ail applicabh' to them. Compare Tmn\ Co., 25 Ch. D. 118. (a) See Morton's case, 16 Ei|, liHl URT. CONTRIBUTORIES — TRANSFERORS. 826 it that, as between , the seller, when he ,bility to be made a the transferor is not a f the cases just cited, irrison's case ((), wheiv ill the terras that the of future calls by the nsferor was not a con- iisolvent. respects irregular, still ls accepted the transfer, , the transfercie («), ami itributory as a present] a the case of a horn ph cansfer which is wholly simply by being acteij ', the transferee and not ] if there was in effect an the company, that the lad of the transferor ((ii, ,r; Ex parte LiUledak,^ ^11 here the transferor had ii i| lis calls ; Rivington'i w*', 3 10 ; Doman'g C(Wf, ib. il, the transfer had not been d-l as recjuired by act of ijat'iii-l See, also, the cases in i' .tc. Ma(pdrc's case, 3 DeU.xil 'V/nci'c/.-'s (•«,«', 1 De C i ij 5ee Chappdl'scase,(n\Mi cases of scrip, McKua i London Wharves Co., « ill East Gloucester Roil iVv| domew, L. K. 3 Ex. 15, vm igh not contributory casts, able to them. Compare Tjii.t'I Ch. D. 118. See Morton's case, 16 E'l. M Moreover, the fact that the transfer has been made to a man Bk. IV. Chap. i. ^ Sect. 10. of straw simply to avoid liability makes no difference {b). In Hyam's case (c), Lord Campbell threw some doubt upon Transfer made to this doctrine ; but, notwithstanding his Lordship's remarks, it ^°' ' " ' ^" seems to be settled that, where the transfer is a real trans- action, it will stand, although the transferor's sole object in makin" it may be to get rid of liability (d) ; except, perhaps, in the case of a director transferring his qualification shares («). By the Stannaries act, 1869, 32 & 83 Vict. c. 19, § 35, a transfer of shares made for the purpose of getting rid of liability for a nominal consideration, or to a person who is insolvent, or in the domestic service of the transferor, is pre- sinned to be fraudulent and need not be recognised either by the Court or the company. Still, if the company, knowing the facts, has recognised the transfer, it cannot afterwards set it aside (/). But, independently of any statutory enactment, such M.il;\ fide transfers are naturally viewed with great suspicion, and if ' there is any doubt as to whether the transferor has bond Jidc parted with all his interest in the shares, or if the directors having power to reject the transferee have been imposed upon 1 in accepting him, the transfers will be treated as invalid. The llowiug are the leading cases on this head : — First, where there is no real transfer. InLim{i'sca«e((7) a holder of 100 shares, of IQl. each, in an insolvent 1. No veal Icoiiipany, sold tlieni all to one of his servants for halt'-a-crown. The shares transfer. |pi--ed by di-livery, and it was not necessary that the purchaser should he ^'"*" '^ '^^^• latctiited as a shareholder by the company. The sale was held to liave Ikt:!! made mala fide, and the seller was held to be a contributory. (!) De Pass's case, 4 De G. & J. |M4, and cases below. ;.) 1 Ue G. F. & J. 75. ^'l) Taurine Co., 25 Ch. D. 118; I/'kIt's cose, 7 Cli. 292 ; Hakim's . ib, 2'J(), note ; liishojj's case, ib. ; tt irrmi's case, 6 Ch. 286 ; IVestori's to'. 4 Ch, 20 ; Plater's case, 35 Beav. 391 ; Costello's case, 2 De G. F. & J. 302 ; (larstin's case, 10 W. R. 457 ; Hatton's case, 8 Jur. N. S. 380. (c) South London Fish Market Co., 39 Ch. D. 324, at p. 331, and (hlhert's case, 5 Ch. 559. (/) Chynon-eth's case, 15 Ch, 1). 13. ((/) 27 Beav. 465. "W" ■^pr if 826 WINDING UP BY THE COURT. Bk. IV. Chap. 1 Sect. 10. Hyam's case. Costello's case. Alexander's case. Hyam's case (h) was a similar case, the transferor in effect givinc tl^ transferee the money expressed to be paid for the shares. The Court treated the whole transaction a.s a mere fable which the parties were actin - and held upon the evidence that they never intended the transfer to have any effect as between themselves. In this case also tin; sliares passed U delivery, Chinnock's case. In Ghinnock's case (i), there was a formal transfer, and the company's deed contained a clause that trusts should not be recognised ; but the transferor was nevertheless put on the list, as it was clear that the transferee liad no real interest in the shares, and the trust was merely created to screen the transferor from liability. In Costello's case (j), a son transferred his shares to his father, who was old and was supported by his family. The .sale was expressed to be made for a trifling consideration, after the company had been ordered to be wound up, and was clearly not a bond fide transaction, but a mere device to substitute the father for the son. The son was put on the list. Alexander's case{k). There a shareholder, who was a broker, transferred his .shares to a clerk for an alleged consideration of 97i. 10s., which w,ti never paid. The transfer was registered, but the transferor kept the certifi- cates, and his clerk sent all notices to him. The clerk was settled on the list, and was ultimately attached and imprisoned for not paying the call: made upon him. He then took the benefit of the Insolvent act. The transferor was afterwards examined, and the result was that the transfer was held invalid, and he was put on the list in the place of the clerk. This case is the more instructive as it is plain that the clerk was liimseli estopped from denying that he was a shareholder. Budd's case (1). There a solicitor transferred shares to his servant without consideration, and solely for the purpose of escaping from liability. The solicitor was held to be a contributory. It was considered that the servant might have repudiated the transaction, and that the company was entitled to show that the transfer was invalid, although the transferee did not him- self impeach it. Hattons case (m). There the transfer was made after notice of a call, anl in order to avoid payment of it. The directors had refused to register the transfer. The transaction was plainly a mere device to avoid liability. />« Pass's case (n) was the first case of this class in which tiie transferor was held not a contributory. There a shareholder knowing that the com- pany was in difficulties transferred his shares to a clerk for a nominal con- sideration. The shares were transferable by delivery, and the Court of Appeal came to the conclusion that the transfer was a real transfer out and out. This case is extremely difficult to reconcile with the others noticed above, and is generally admitted to be unsatisfactory (o). Budd's case. Hatton's ca^e. De Pass's'case, {h) 1 De G. F. & J. 75. (i) Johns. 714. See, also, Scully's case, 6 Ir. Ch. 72. (j) 2 De G. F. & J. 302. (k) 9 W. R. 410. See ante, p. 747. ( 30 Beav. 143, affirmed on appeal, 3 De G. F. & J. 297. (m) 8 Jur. N. S. 380. ('ompart Orpen's case, 9 ib. 615. (n) 4 De G. & J. 544. For other cases to the same etfcct, see anl', note (y). (o) The Master of the Rolls pat j URT. CONTRIBTITORIES — TRANSFERORS. 827 eror in effect giving the the shares. The Court ch the partien were acting ided the transfer to haw ilso the ahare.s passed hy sr, and the company's deed nised ; but the transferor tiat the transferee had iii) rely created to screen the i to his father, who was old expressed to be made for a a ordered to be wound up, mere device to substitute list. was a broker, trans^ferred tion of 911. 10s., which w.i- i transferor kept the certiti- B clerk was settled on the d for not paying the calls f the Insolvent act. The isult was that the transfer in the place of the clerk. 1 that the clerk was himsth hares to his servant without aping from liability. The considered that the servant it the company was entitled he transferee did not him- le after notice of a call,anl had refused to register the 2vice to avoid liability. in which the transferur er knowing thai the com- clerk for a nominal con- lelivery, and the Court of was a real transfer out ml le with the others noticftl itory (o). De G. F. & J. 297. Jur. N. S. 380. (Compare ise, 9 ib. 615. leG. &J. 544. For other I the same ett'ect, sec an!', Master of tl>c Rolls pat ' Whether De Pass's case was rightly decided or not, both Bk. IV. Chap. 1 . that and the other decisions above referred to estabHsh, that '- — '■ — notwithstanding a transfer in form, the transferor will be held a contributory if the evidence shows not only that the transfer was made to get rid of liability, but that the transfer was not a real transaction, and was not intended to divest the interest of the transferor, and to render the transferee the hondfide owner of the shares, but that the transferee held them subject to the orders of the transferor : and although it cannot, per- haps, be denied that, in the cases in question, the relation of trustee and cest'ii que trust was created, it is obvious that the sole object of the trust was to screen the transferor from liability. The cases show that such devices will not have the effect desired by the persons who practise them (p). Secondly, where the company has been imposed upon. The power of directors to reject a transferee depends on the 2. company company's regulations (q) ; if there is no power to reject him a ""P""^'^ "i'""- misdescription is immaterial, and if he is sui juris and becomes a shareholder, the transferor escapes (r). But if the directors have power to object to a transferee, and shares are transferred to a pauper or a man of straw, who is misdescribed, so that the directors are imposed upon and induced to make no in- quiry about him, the company can, on ascertaining the facts, repudiate the transfer and place the transferor on the list of lontributories. This has been done where the transferee was a clerk, and was paid to accept a transfer, and he was de- scribed as a gentleman paying for the transfer (s). So where the transferee was a ship's steward, paying nothing for the transfer, but was described as of a certain place, where he did not live, and as paying the market price for the shares (t). Do Pass on the list. The Lord.s Justices reversed the decision. An appeal to the House of Lords was prevented by a compromise. (j)) See ace. King's case, 6 Ch. 1!)6, I »here the difference between trans- 'en and allotments is alluded to. William' case, 1 Cli. D. 576, was a I CJM of allotment. See a7i«e, p. 801 et seq., A (9), trustees and cestuis que trustent. (q) JVeston's case, 4 Ch. 20. See ante, p. 464. (r) Ib. (s) Paym's case, 9 Eq. 223. (t) Ex parte Kintrea, 5 Ch. 95. He was not described as a gentleman or anything. !,l' !"•«!" I i.f HI 828 WINDING UP BY THE COURT. Bk. IV. Chap. 1. Moreover in cases of this description, proof that the directors Sect. 10. ' were not in the habit of inquiring about transferees is not material ; it is their duty to inquire where their suspicions are aroused, and the mis-statements are of course made to lull suspicion (u). However, the mere fact that the transferee is described as a ** gentleman," when he is not entitled to be so called, is not sufficient to invalidate an otherwise valid transfer (;r). If the directors have accepted the transferee with knowledge of the facts, the transferor cannot be made a contributory (y). Transfers to infants. Transfers to infants are voidable not only by the iufaiu whilst under age, or within a reasonable time after coming of age(«),but also by the company (P afterwards made, i-o'"'-'^' Ue's case, 5 Eq. 420. ,ee, as to this, ante, p. '^'' nlpv^an v. S^errf, «« lad V. I^oi, L. B. ^ C. M after the commencement of the winding up, but also to cases ^^- IV. Chap. l. - , OGCti 10. where they have been transferred previously, but the transfers liave not been registered. The words " alteration of the status of the members " plainly include the last-mentioned cases. But it is by no means clear from the language of the act, whether the Court can, under § 153, alter the register in cases to which § 35 does not apply ; or whether § 35 restricts the Miend power to sanction transfers which is conferred on the I'ourtby § 153. The tendency of the more modern decisions jism favour of the latter view (i). ,\gain, whether the Court can exercise the discretion, which lis generally reposed in the directors, of permitting or refusing Itrausfers is another very important matter on which there is |«l»o a conflict of judicial opinion. This question, it will be observed, does not depend on the power of the Court to rectify register, but on its power to substitute its own judgment K that of the persons in whom the discretion of accepting or jtding transferees has been reposed by the members of the |(iiiipany. The better opinion is that this cannot be done (k) ; Itliough the absence of approval is not material where there |eie no grounds for disapproval, and where the approval was »t a condition precedent to the transferee's becoming a share- |ol(ler(l). The following observations it is hoped will be found to be iiiccordance with the most recent decisions (m) : — I IITi«re the sale has taken place before the commencement of the vrinding up. |1. If a person has sold his shares, and has unnecessarily Delay on the Jived compelling the purchaser to complete the transfer, parties to the i the seller remains the registered holder at the commence- *^™"^ '^^' [lit of the winding up, he, and not the purchaser, will be iced on the list (») ; although, as between the seller and the I See, as to the construction of i,(in(«,p. 120, etseq. U'i/ra, pp. 834—837. See, \ihtfM's case, 2 Ch. 16. i ^hrd and Garfit's case, 4 Eq. land infra, p. 034. I See the summary of V.-C. I>c. Giftard in Marshall v. Glamorgan Iron and Coal Co., 7 Eq. at p. 137. (n) Ward and Henry's case, 2 Ch. 431, reversing Ward's case, 2 Eq. 226; Walker's case, 6 Eq. 30; Head's case, 3 Eq. 84 ; White's case, ib. The observations of the Master of the 3 H 834 WINDING UP BY THE COURT. I»k. IV. Chap. 1. 8e«t. 10. No delay, and trandfer com pluti! illtlillll^'h not rejjiiitervd, Discretion of directors exer- cised by the Court. purchaser, the former irmy bo entitled to an indemnitv fiiu the latter (o), and although each of them may be as solvent J the other (p). 2. Where before the commencement of the winding m shares are bond fide sold, and the transfer has \)wn exicutel by both transferor and transferee, and has \n:n\ loft for ivi tration at the company's office, and there has been iin necessary delay on either side in completing tlio transfer, aiii nothing remains to be done except to register it, and tlj company, having had an opportunity of registiirin},', InJ neglected, but not declined to do so [q) : under tliese circuiJ stances, the Court will allow, and indeed order, the tmij feree's name to be substituted for tliat of the transferor, uiiIa there is some good reason why the transfer should iiui completed (r). Even if the transferee has not executeii til transfer, still if he has accepted the shares, and has M accepted by the directors as a shareholder, the trunsftree wi be treated as the owner (s). 3. Where, as is generally the case, the directors Imve \mi to decline to register a transfer if the transferee is not approfi by them, and a transfer has been left for registrntiun in suj cient time to be approved before the commencement oft winding up, but has not been approved ; still, if im iltlml imputable to the parties to the transfer, and tlu re arf i grounds on which the directors could have properly (leclini to accejjt the transferee, the Court will accept him, and orJ his name to be registered (<)• But if the directois did oil Rolls in Ward's case, 2 Eq. 226, were commented upon and explained by him in these two last cases. (o) Head's case and White's case, 3 Eq. 84. (p) Ibid. In Head's case, t liquidator was indiffeieiit as > which of the two was put on the list. (q) See infra, 3, 4, and 6, as to this. And compare Lord R. Montagu's case, W. N. 1888, 136, where the transferor had neglected to see that the transfer was registered. and there was no default on tliepi of the company. (r) '■•((/. '.v 1 Ch,:';S;ff| "S'- . 769, uuic; LowCimJ , Ward and f-irjil's awAl o!) ; Nation's c ■> Etj, ";^ see Ward's case, -i i-iq. 226. (s) '•< Herat Flnutini) DodCii N. 1" ;7, 27, wliere the tiansfl was registured. (0 Weston's crtsc, -1 Cli. :'«, »lj the transferee was a man ut si^ but the directors had no rijl object to him. See, also, iMi CONTRIDUTORIES — TRANSFEnons . 885 tt'riii;; tninsfur. 1(5 pr,)per grounds, the Court clortrly cannot iuterfnro ; and it Bk. IV. rhaji. 1. |{u> been held competent for directors, seeing that the com- Ipuii ii> in extremis, to resolve that no more transfers shall he Irwistercd without their express sanction ; and where this is pf, the Court will decline to complete! a transfer loft for reistriitioii just before the passing of the resolution (ii), tliliuuf(li the Court will complete a transfer which was left for Riistrntion, and ought to have been registered before the [(solution was i)assed (,;;). I It is iilways material, in these cases, to ascertain whether l^' '•'>■ '" "'K''*- iitdiri'ctoi's have received a proper transfer in sutticient time [efore the commencement of the winding up to enable them I) piss 0" reject the transfer in the ordinnry course of business. kre there has been no board meeting in the interval between ii leiiviiig of the transfer and the commencement of the yinj! up, the Court has never yet completed the transfer, 1 it is very doubtful whether the ('ourt has any power to do 1 1; But wliere there has been such a meeting, although ^y one, delay is imputable to the company in not passing irei,'isteriiig the transfer, and the Court can and will order Itu be completed if the parties to the transfer have not pseh'es been guilty of delay {z). Is. But this assumes that the transfer left for registration is lmi>roiicr Ewliieh the directors were bound to accept : if it be not, no lav is imputable to the company, and the transferor will be t contributory. Ihis has been decided where no transfer has been left for |istiiitii)n (a) ; where the transfer left was not executed by transferee, as was required by the practice of the com- tniiiHfers. ease, 4 Eq. 189 ; Nation's 1 3 Ei[. 77 ; and compare J-Fes- Uise, with Ex })arte Parker, 2 185. \Mmnder Mitchell's case, 4 (y) See IVard and Henry's case, 2 Ch. 431 ; Sheplierd!s case, ib. 16. («) See Nation's caise, 3 Eq. 77 ; Hill's cise, 4 Ch. 769, note ; Lowes case, !) Eq. 589, where petitions for I 'a. 548 & 507 ; liuthcrfurd's winding up, which were afterwards " i48 & 581 ; Milchell v. Gily witlidrawn, were pending. Qu. this Iknk, ib. 624 ; Shepherd's case. ' '^li. 16, and 2 Eq. 504. (a) Musgrave arid Hart's ease, 5 I'Vuiion'd case, 3 Eq. 77 ; and Eq. 193. «■> cm, 9 Eq. 589. 3 H 2 836 WINDING UP BY THE COURT. ^^ o^V^^n^' ^' P^"y (^) ' ^^^^^^ the transferee was a person to whom the con;. pany might have objected (c) ; where the transferor not havin« paid his calls was not entitled to transfer (d). But a transfer executed in blank and filled up afterwards, but before beito sent in for registration, has been held sufficient (c). The directors of a mutual insurance t;ociety are entitled ti evidence of the assignment of a policy, and if reaaonable time for inquiry has not elapsed before the winding up, the Com will not register the transferee (/). 6. It must be borne in mind in these cases that if the wni- pany has refused to register the transferee before the conipanr was in difficulties, the company cannot insist on havinf; bu name put on the list of contributories instead of that of ; transferor (g) ; and the creditors of the company are in tl respect in no better position than the company (h). fi) Where the sale has trken place sirice the commence •nent of the vrindiriV'j] If, in order to rectify a company's register and to substitute the name of a transferee for that of the transferor, it is r iseiiti that the transfer shall be left for registration ))efore the fc J tions of the directors cease, it will follow that a person m sells his shares after that time must, under all circumsimift be a contiibutory. But if this is not essential, there nil the same power of making the substitution where sales i made after, as where they are made before, a petition to win up(r). It is .'vious, however, that to allow sharehoto get rid of tneir liabilities by selling their shares alter tlj commencement of the winding up of the company woiiUli to the greiitest fraud; and it is difficult to conceive ami cumstances which can entitle such a seller to have tlie poj chaser substituted for him, if the liquidators or the creilitii {!)) Marino's case, 2 Ch. 59(5 ; Walker's case, 2 P]q. 554, and see last note. {() Shipman's case, 5 Eq. 219. ((/) Holden's case, 8 Eq. 444. (f) Contract Corporation, 3 Gh. 105. (/) See Sanders wse, 20 lt| 403. (g) Sichcll'scase,-3a.m. (h) lb. (t) See ace. Emvierson't 'W,l Cli. 433. COURT. CONTRIBUTORIES — TRANSFERORS. 837 )erson to whom the com- the transferor not havin; nsfer(ci). But a transfer! rwards, hut before beingj I sufficient (e). Lce ibociety are entitled ti !y, and if reasonable time! le winding up, the Coiinj sse cases that if the ccm-l sferee hefore the companTJ inot insist on having lii( ies instead of that of ; ■ the company are in ihiJ e company {h). •.ommmce.nent of the vviiwyji i register and to subslituM ;,he transferor, it is rami gistration l)efove the k\ 'ollow that a person wtl it, under all circumstanivj not essential, there nil ibstituti jxi where siiles : 3 before, a petition to™ it to allow shareholte- ing their shares alter i of the compimy would Itij fficult to conceive unyt 1 a seller to have tlie fjl liquidators or the ckJM /) See Sanders' case, 20 dj g) Sxc/ieJi's cose, 3 Ch. 1.19. ■) See ace. Emmson' '^-^l 433. InDDOse the substitution ( A'). Nor is there vet any reported Bk. IV. Chap. 1. \ "" . . . , " Sect. 10. lease in which the substitution has been made, even where — — Ithere has been no opposition on their part. In Emmerson's Emmerson's" lf((,s( (/), indeed, the Master of the Rolls made the substitution ; Ibut the decision was reversed on appeal (m). This case, more- lover, WIS decided before it was held, as it now is, that the Iquestiou who ought to be on the list of contributories, is luiaterially different from the question whether the seller is lentitled to indemnity from the purchaser. In Walker's case (n), Walker's case. Itlie Court declined to make the substitution, on the ground hat the Court could not itself exercise the discretion of ap- Jiioving or rejecting transferees, and which discretion was Bested by the articles of the company in the directors. In |e,,cli of the above cas-^s the liquidator was indifferent as to (tliich peioon was on the list. In connection with this subject it is to be remembered that des of shares after the commencement of a winding up are kot void under § 153 of the Companies act, 1862; and trans- iis lifter tliat date may be approved by liquidators (o). . As regards persons who have surrendered their shares to the company. The right of sliareholders to retire from a company has been PLirrcnJeiors iisdissed in an earlier chapter (2)), and it was there seen that 1 the absence of an express agreement, except in tlie case of »st-buok mining companies, the only mode in which a share- lolder can retire from n company is by transferring his shares |o Slime otlier person. If, therefore, a shareholder has sur- tiidi led liis shares, and even if they have been cancelled by ic directors, he will, nevertheless, be a contributorv, as a Ul Under the actj of 1848 and jfW the transferor has been deuitk'd t'l tlie ciintributory. (•lanville's h 10 Eq. 479. |(i)2Eq.2:n. in 1 Cli. 433. It was reverhed Ipdii tilt ground that neither buyer |of seller knew of the petition to wind up, and that under those circuni.stances a decree for specific performance could not have been made against the purchaser. (»i) 2 £((. 554. (o) See Kudye v. Bowman, L. R. 3 y. B. G89. (/)) Ante, p. 517. FS . '*^: 888 WINDING UP BT THE COURT. Mnnt's coso. Bk. IV. Chap. 1. present member, unless he can show that the company is bound j '- — by what has taken place. Prima facie, directors have no ri"ht I to accept a surrc^nder of shar'^s. Murgan'K ca.4o. Morgan's case, (q), Stanhope case (r), and Hunt's w.?e(s), Stiinhope's case, .^j^^ ^jjg p^ses which arose on winding up the Agriailtum'l Cattle Insurance Company (<), the facts of whic}i have beer, before stated (m), are leading authorities upon the subject noir in question, and it appears fvom them, and other eases whicli will be found in the notes below, that, unless the constitution I of a company is such as to warrant directors in acceptinj i surrender of shares, or unless an unauthorised surrendering been so acquiesced in by the company as to become bindinjl upon it (03), a person whose shares have been surrendered will, nevertheless, remain liable to be a contributory, as a present I member. This has been held where the directors would hm had power to buy shares of the comiiany out of certain awuJ mulated funds if they had existed, but which, in fact did noij exist, and the shares were nevertheleless purchased by the dire(^tors for the company in pursuance of a resolution passelj at one general meeting of the shareholders (y), and ratitieil a'l another similar meeting (z). So, where the shares had betni surrendered and cancelled considerably more tlian six yiarsl before the company was ordered to be wound up (a) ; where ttsl cancelled shares had been allotted without authority (b); wiieral it was part of the bargain when they were issued that should be cancelled (c) ; wheri' they had been transferred tJ {q) 1 De G. & S. 750, and I Mac. & a. 225, ante, p. 518. (r) 3 De G. & S. 198, ante, i>. .")ls. (.s) 22 Beav. 55, mdc, ]). 51!). (f) Stanlwpe'i^ case, 1 Cli. 161 ; Stewart's case, ib. 511 ; Spackviav Evans, L. R. 3 H. L. 171 ; Huulds- viorth v. Evans, ib. 263. (it) Ante, p. 622. (j:) Aa to which, seu Evans v. Smallcomhe, L. R. 3 H. L. 249, and other cases noticed, ante, pp. 517 to 523 ; and Hunt's case, 32 Beav. 387. (y) Ex parte Morgan, 1 Mac. & G. 225, and I De 0. & S. 7f)0,iiiV] 518. (a) Lawes's case, I De (i. .M.Jiil 421. See, also, the cases in noie ' Such a power in the ca.se of a 1 joiiipany w ^ Richmond's Executors .w.l 1) Addison's rase, 6 Ch. It'i iiipure Milkr's case, 3 Ch. D. 6fi I . 1 J ib. 70. (.1) WaUer's 2nd case, 3 De O. & p. 244. (•) BennHt's case, 5 De G. M. & . i^i, and 18 Beav. 339. Loiidov »i' I'nvincidl Consolidated Goal do., iCli. D. 51.'), where the persons re- iiin;,' had subscribed the meiiio- [iiiiiuin of iissociatiun ami no shares licen alloltud. See, also, the |i- j ante in note (t), noticed ante, (/) Mnni'n case, 22 £eav. 65 : ^iinWrscoiti.ib. 43, and on appeal, 3 nr N. S. 803 ; titanhope's case, 3 Ue • VS. 198. See (Fa/)ter'« case, 8 De Jl. & G. 607 ; Ex parte liroum, ltir.iv. 97, and the cases noticed, ante, pp. 517 to 523. (j/) E.C parte Apps, 18 L. J. Ch. 409. (/() Hxhrnoyid's case, 4 K. & J. 305. (i) Esparto Trading Co., 12 Ch. D. 191. [k) Barrett's case, 4 De G. J. & Sni. 41(). See, infra, )>. 842 as to couiproniises. (0 Austin's case, \V. N. 1867, 138. (vrt) See Adams's case, 13 En. 474; Sidnm)'s case, 13 Eq. 228 ; Hall's case, 5 Ch. 707 ; London and Pro- vincial, (Lc, Coal Co., 5 Ch. D. 525. (/() Hall's case, 5 Ch. 707, and .see, infra, p. 842, under the head For- feit ure. •« 840 WINDING UP BY THE COURT. Bk. IV. Chap. 1, Sect. 10. Persons who have duly .sur- rendered their shares not con- tributories. Distinction between sur- rendering shares and t ansferrins then.. "Where, however, the shareholders have power to relinquish their shares, and do relinquish them in the exercise of that power, then, as between themselves and the company, their liability is at an end, and on the winding up of the companv they are not liable to be made contributories, unless it be as past members (o). There are many decisions under the oldtr acts to the effect that, under the circumstances now supposed persons who had surrendered their shares were not contrihu- tories (p), even although the surrender was somewhat inv gular (q). The same principles are applicable to surrenderors of shares in companies formed and registered under the Com- panies act, 1862 (/■). The writer conceives the same to be true of unregistered companies wound up under that ad, although, if there are no present as distinguished from past i members, surrenderors will be liable to ha contributories there are debts for which but for the act they could be sued at law (s). Before quitting this subject it is necessary to advert to the I distinction between a transfer of shares and a surrender oi them. A surrender which is carried out by a transfer to a nominee of the company is treated as a sui'render and not as a I transfer (t) ; but if what is called a surrender of shares is in fact a hondjide transfer of them, the transferor will, as between I •'r ) (o) As to companies governetl by the Stannaries act, 1887, see 50 & 61 Vict. c. 43, § 22. {p) See Fenn's case, 4 De (}. M. & G. 285, and 1 Sm. & G. 26 ; Birch's case, 2 De G. & J. 10 ; Loft- house's case, lb. (it) ; Bodmin United Mines, 23 Beav. 370, all cases of cost-book mines. (q) Lane's case, 1 De G. J.& S. 504 ; Orady's case, ib. 488 ; Busk's case, 3 De G. & S. 267, aftirmeil on appeal, see 16 Jul'. 343 ; Gockburn's case, 4 De G. & S. 177 ; .Ex parte Bagqe, 13 Beav. 162 ; Hawthorns case, 10 W. R. 572. (r) Teesdale's case, 9 Ch. 54, where the power was given by special reso- lution altering the articles. But see the ob.'iervations on this casi u" Hope V. International FinamM Soc, 4 Gh. D, 327 ; Tlimnm's rwJ 13 Eq. 437 ; Sndrs case, 5 Cli.iJ where the surrenJeror had sub-l scribed the memorandum of astn'ia- tion . Compui'e HaW.f cuse, ib, io;,| where the transaction wa.s held uul| to amount to a surnindcT. (s) Parts oisr, 10 Eq. &R ■•>rtg ante, p. 81!), note (a). (t) See Addison's case, 5 Cii. *t4;j Lankestei^s case, 6 Ch, 905, note, aj explained by L.-J. Midli.^h, a! p,! 910 ; Eyre's case, 31 Beiiv, l";l Benham's case, 13 W. E. -ifSl Clack's case, W. N. 18(i6, p. i'^l where dissentient shareholder rt-| tired. Compare next two notes. CONTKIBUTORIES — SURRENDERORS. 841 e power to relinquish the exercise of tliat i the company, their ^ up of the compaiiv ,ories, unless it be as ;isions under the oldir stances now supposed, tres were not contrihu- jr was somewhftt iriv. (licable to surreiiderors stered under the Com- reives the same to he d up under tliat ait, listinguished from past to be contributories if t they could be sued at cessary to advert to the .res and a surrender oi | out by a transfer to i surrender and not as a I rrender of shares is in ansferor will, as between j iervations on this cast m" V. International Fmanii Ch. D. 327; 27(OT?ias's w.«,f 4:57 ; SiifiWs case, 5 Ch. 22,1 the surreiideror had sub-l the nieniorandum of asst»ia-f (.:()iiip:ire UaWii am, il). ""'I lie tmusuctiiin was held uutj .int, to a BUirendur. ■art^ nm, 10 Eq. 6-22, wj 81!), note (4 ee Addiimi's vase, 5 ChJlUl «^,s ,:ase,Cy Ch. 905, note, al ed by L.-J. Melh^h, at _p.j Eyre's case, 31 Beav. '""' ',s case, 13 W. R. i^^< case, W. N. 18(i6, p. ^''-I dissentient shareholdeK R-j Compare next two notes. himself and the company, be released from liability, and will ^^- IV. Chap. 1. not be a contributory, althougli the main object of the transfer — '■ — '- — may have been to enab^ him to get quit of the company (u). Moreover, even if the transfer is made to a person in trust for the company, but the transferor is ignorant of this fact, and throuehout acts in the bond fide belief that he is transferring his shares to the transfere'j as an individual, the transfer will he valid, and the transferor will not be a contributory (x). A transfer to an individual director, moi'eover, will not relieve the transferor from his liability if the transfer is not made with perfect bona fides, and so as to constitute the transferee a shareholder in respect of the shares transferred. In Kx parte Brown (y), a transfer by a director to a director was Ex parte lirown. held invalid as between the transferor and the company, on the ground that the transfer was made irregularly, and the transferee had already as many shares as he was entitled to hold in his own right ; and in Ex parte Henderson (z), a transfer Ex r^arte hy an auditor to a director was held invalid as against the company, because, in addition to the grounds relied upon in the last case, the transferor had made no attempt to transfer his shares in the proper manner, and had acted throughout with want of good faith. A person who has not bound himself to take shares, can Ditrerence waive any right to take them which he may have acquired ; reiulcring shares and an arrangement by which he abandons some and retains ^'l kTthem' the rest, does not entitle the company to hold him a con- tributory in respect of more shares than he ultimately agrees to take (a). So if shares are allotted pursuant to an invalid resolution which is afterwards rescinded, and the shares are cancelled, the allottee will not be a contributory (b). So shares (ti) Jessopp's case, 2 De G. & J. 638. See, also, the next note. (x) Grady's case, 1 De G. J. & Sm. 488; Reeve's case, 10 W. R. 817 ; Hollwey's case, 1 De G. & S. 777 ; A'icoi'j case, 3 De G. ^ J. 387 ; ^hes' case, 15 W. R. 476, Com- pare these with the last two notes. (!/) 19 Beav. 97. {') lb. 107. Compare Murray v. Bush, h. R. 6 H. L. 37, affirming Biish's case, 6 Ch. 246, wlieie tliere was irre<,'ularity, but no mala fides. (a) See Sahlgreen and ilarridl's case, 3 Ch. 323 ; Meyer's case, 16 15eav. 383 ; Coleman's case, 1 De G, J. & Sm. 495 ; Hebb's case, 4 Va[. 9, See, also, Nicol's case, 29 Ch. D 421. (6) Bar.ult's case, 18 Eq. 507. 842 WINDING UP BY THE COURT, (Jompromise of doubtful liability. Bk. IV. Chap. 1. allotted by mistake as paid up may be withdrawn, and re-issued Sect. lO. , , when *he mistake has been rectified (c). Such cases as these do not l;Tn on a shareholder's right to retire from a company but on a j^erson's right to withdraw from an unconcluded agreement, and to have mistakes corrected. Moreover, if there is a bond fide question whether a person is or is not a shareholder or bound to take shnres, iinil such question is settled by a compromise, and he gives up all his rights (if any) against the company, and the company reliu- quish all claims upon him, he will i)ot be a contributory as a present member ; although he might have been had there heen no compromise, and althougli sliarel/olders in the companv may have had no right to surrender their shares (rf). Moreover, this principle applies although the parties may not have got so far as to dispute the question capable ut being disputed between them (c). But in the absence of a bona fide dispute, or of a question capable of being bnnafui made a matter of dispute, there can be no compromise, ami no room therefore for the application of the principle in question (/). A shareholder who in the course of winding up surrenders his shares under § 161 of the Companies act, 1862, does uot cease to be a contributor^' (g). Surrender under §161. Position of persons whose- shares have been forfoitetl. d. As regards persons tvhose shares have been for fehed. It was seen in a previous chai)ter, that the right to t'urfeii shares does not exist except where it is expressly cont'cired (/i), Consequently, persons whose shares have been declared for- feited, do not cease to be shareholders, and arc not relieved from their liability to be made contributories as present (c) Hartley's case, ib. 542, and 10 Ch. 157. {(i) Jjord Iklliaven's case, 3 De G. J. & Sm. -il ; Fox's case, r> E^l 118 ; Blake's case, 34 Beav. «39. Sei;, also, Bath's case, 8 Ch. T). 334 ; Hesketh's case, 13 Ch. D. 6!)3. («) Dixon V. Evans, L. R. !> H. L. (506, reversinjj; Dixon's case, 5 Ch. 7!). (/) Adams's case, 13 Eq. 4/4; Dixon's case, 5 Ch. 79, was decidfJ on this principle, hut was revor-t-l on appeal. See tho last note. (g) Viuing's case, 6 Ch. 96. (A) Ante, p. .528. CONTRIBUTORIES — FORFEITED SHARES. 848 members, unless the torfeiture is warranted by the coustitu- Bk- IV. Chap. 1. Sect. 10. tion of the company. On the otl.er hand, where there is power to forfeit shares, Persons whose and shares are bond fide forfeited in pursuance of the power, beenTiu'iy^*' tlie sharehohler who is thereby deprived of all interest in the forfeited not ""^ _ . contnbutories. company, is not liable to be made a contributory, as a present member, on its winding up (i), unless, notwithstanding the forfeiture, he continues, as between himself and the company, liable for its debts, which, although not an impossible, is a very improbable case. A power to forfeit is, however, one which must be exercised Irregular IP !•.• •! 1 1 ,1 • forfeitures' with great attention to the tormalities prescribed by the instru- inent conferring it (&), and a person whose shares have been improperly forfeited will be a contributory as a present member under ordinary circumstances {I). Nevertheless, if everything required to be done is substan- tially done by the company, and if the shares have been treated both by the company and by the shareholder as forfeited, the >hareholder will not be a contributory. This is well excmpli- tied in Knight's cane (m), where there was power to forfeit for Knight's mse. have beenforfcHed. \t the right to forfeit xpressly conferred (h). been declared for- , and are not relieved tributories as present ersin^ Dvsons case, 5 W' dams'A rase, 13 Eq. 474; rme, 5 Gh. 79, was deciJpi principle, but was reverss-i il. See tho last note. ining's case, 6 Oh. 96. if«, p. 528. (!) Sec, in addition to the cases tiled in the next three note.s, Dawes'n (M, 6 Eq. 232, where the forfeiture was in the interval between a re.so- hition to.'wind up voluntarily, and a resolution confirming it ; Kelk'n case and Pahlen's case, 9 Eq. 107, and Kt parte Collum, ib. 236, wliere the f'irfeiture was for not bviiii^iug in lertiticates for registration. See, .ilso, Herrsford's case, 3 I)e (I. & S, 175, and 2 Mac. & G. 197 ; Ex parte Pmiky, 15 Jur. 29. These cases •Iww that il' a company's deed cou- llrs a power of forfeiture, that power may be exercised against a person who ought to execute, but has not, ill fact, executed that deed. And •KiStrickv. Swansea Tin Platr (Jd., ■W Ch. D. 558, where members spelled from a trade aasociati,en *ere held to have no claim to shiire j in the division of surplus assets. (k) Ante, p. 532. (I) Esparto Trading Co., 12 Ch. 1). 191, where there was no intention to forfeit the shares, but merely to cancid them ; Hottomley's case. Hi Ch. D. 681, where the forfeiture was invalid owing to the number ol directors being insutlicient ; Garden Oullij Mining Co. v. McLister, 1 App. C/"a. 39, where the forfeiture was invalid on the ground that it was made by persons not properly elected direc'lt)rs. (in) 2 Ch. 321. See, also, U'ool- ladon's case, 4 Do C & J. 437, re- versing, on this point, IVoolloKton'^ case, 5 .lur. N. S. 617 ; Luster's case, 4 I'^q. 233, where the forfeiture was by two out of six directors ; King's case, 2 Ch. 731 and 735, where the shares forfeited were illegally sub- divided shares ; and see Webster's case, 32 L. J. Ch. 135 ; (jrrady's case. ':!'Pi 844 WINDING UP BY THE COURT. Bk. IV. Chap. 1. Sect. 10. Intention to forfeit not carried out. Bigg's case. Improper exei - else of power to forfeit. non-payment of calls, on givin^^ certain notices, and by a reso- lution to that effect : a shareholder from whom calls were due received notice in proper form that if his calls were not paid on a certain day his shares would be forfeited. He made default, and the secretary thereupon made an entry in tlie company's books to the effect that the shares were forfeited, and had been transferred to the company. By the regulations of the company the shareholder ought to have had notice of this ; but no notice was sent to him ; and no resolution to forfeit appeared in the company's books : indeed, it was tolerably plain that there had been no such resolution. The shareholder in question, however, had never acted or been treated as a shareholder after the forfeiture ; and it was held, that a resolution to forfeit ought to be presumed, and the shareholder was accordingly held not to be a contributory. In the above case, it will be observed that there was power to forfeit, an intention to forfeit, and notice of that intention: and the intention was actually carried into effect, although not with due regularity. But, as has been seen on a former occk- sion, an intention to forfeit not carried into effect is no forfei- ture at all («) ; therefore, where a shareholder received notice that if he did not pay his calls in arrear by a certain day his shares would be forfeited without further notice ; and he paid his calls on some of his shares but not on others, stating that he should submit to their forfeiture, but the directors after all did not forfeit thein, but kept his name on the books as it had been before the notice ; he was held, on the subsequent wind- ing up of the company, to be a contributory in respect of all his shares (o). Even when there is a power to forfeit, that power can only be exercised bond fide for the benefit of the company. It. therefore, a shareholder procures his shares to be forfeited in order that they may be cancelled and got rid of, or as part of 1 De G. J. & S. 488, and Coleman's case, ib. 495, as to presuming for- feiture. See, also, Miller's case, 3 Ch. D. 661, and 5 ib. 70, infra note (o). (n) Ante, p. 533. (o) Bigg's case, 1 Eq. .30f), It Miller's case, 3 Ch. D. 661, ami 5il. j 70, there was no notice or declara- tion of forfeiture, but it was a con- sequence of ceasing to be a director ig,p case, 1 Eq. 309. In case,3Ch. D. 661,aiKl5;l. e was no notice or declara- forfeiture, but it was a cm- of ceasing to be a direct.r C0NTR1BUT0RIE3 — FORFEITED SHARES. 845 II scheme by which he may be enabled to surrender his shares Rk. IV. Chap. l. ,111(1 retire irom the company, he will remain a c^atributory — — ■ notwithstanding the forfeiture (/>). On the same principle a >iureudt'r of shares which is ultra vires cannot be treated as viilid by being referred to a power of forfeiture, which was never really exercised {q). \ forfeiture of shares taken or agreed to be taken, must be Distinction distinguished from the withdrawal of shares allotted to a per- foiling sliarcH son, but which he has not bound himself to take, and has '■„,'' .'Jll^J.^Tt' I xpressly or impliedly declined to accept. to forfeit shares exists or not, such a person is not a con- tributory (r). The forfeiture of a share within a year before the commence- Liabiiiky as past ment of the winding up of a company formed and registered under the Companies act of 1862, does not relieve the former holder from his liability to be put on the list of contributories ;is a past member (s), even although he may have transferred them before the forfeiture (() ; and even although the com- pimy's regulations are to the effect that forfeited shares are to be treated as extinguished (u). Whether anv power agreed to i)e ■' '■ taken. (;)) Richmond's and Painter's case, 4 K. & .1. 305, ante, p. 532. See ;ilsu, H'packman v. Evans, L. 11. 3 H. L. 171 ; JJouldsworth v. Evans, ill. 263 ; Stanhope's case, 1 Ch. 161 ; ^kmrt's case, ih. 511 ; noticed ante, pp. 518 to 523 ; Gower's case, 6 Eq. ".where the member's name was >till on the register. ('/) Hall's cast, .") Ch. 707 ; Esparto TmliwjCo., 12 Ch. D. 191. (/•) Uolihmid's case, 16 Beav. 262 ; Coleman's case, I De G. J. & S. 495 ; Belhaven's case, 3 ib. 41. See, also, Dixon V. Evans, L. It. 5 H. L. 606, reversing Dixon's case, 5 Ch. 79. omte, p. 842. (.s) Bridger's case, and NdU's case, 4 Ch. 266 ; Bath's case, 8 Ch. D. 334. Compare Hesketh's case, 13 Ch. D. 693. {t) liridger's case, and Neill's case, 4 Ch. 266. (u) Greyke's case, 5 Ch. 63. L .M w 846 WINDING UP MY THE COHRT. Bk. IV. Cha:,.l, Sect. 11. Calls on con- tributories. Purposes for which calls may be made. Time ami amount of oalU. SECTION XL— CALLS I'OR DEBTS, ETC. 1. Generally. Having settled the list of contributories so far as he. is aMe, the next thing which the judge acting in the winding up usually finds it necessary to do, is to make calls on tlio con- tributories for the payment of the debts, losses, and liabilities of the company (x). Calls may be made : 1. For the payment of the company's debts and liabilitits ; 2. For the payment of the costs of winding up ; and 3. For the adjustment of the rights of the contiibutoiifs amongst themselves {y). Moreover, in making calls, the probability that some of tlie contributories will fail to pay the full amount due from tlu.iii may be taken into consideration (z). With respect to the time for making calls, and the amount to be raised, the Companies act, 1862, gives tlie judge a will discretion (a) ; and he is, to a great extent, guided by thi liquidator's view of what is required (b). Moreover, tlie coiiit of appeal is very reluctant to interfere with the discretion of the judge upon such a question, as to whether the time Iw- ari'i.ed for making a call, or as to the amount for which i; should be made (<;)• A- call can only be made upon pei'soii> who are settled on the list of contributories (d); but it is not necessary to wait until the list is completed (e) ; nor until the assets of the company have been realised or have ken (x) The power of making calls on the contributories in. given by § 102 of the Companies act, 1862. These calls must not be confounded with calls made under a company's articles of association or deed of settlement. Sec ante, p. 407. (t/) § 102. See, also, §§ 38, 196, cl. b, and § 200. (z) § 102. (a) lb. (6) See Helbert v. Banner, L. R. 5 II. L. 28 ; The Contract Gorporaliw, 2 Ch. 95. (c) Ibid. {d) See the act § 102. (e) Ibid., and see, as to past mem- bers, Greyketi case, 5 Ch. 66 ; andseo Helbert v. Banner, L. II. !> H. L. ■2'! See Underwood's case, 5 De G. .M. cSt G. 677, where the list was in siidi a state that it was '^eld no call coulJ be made. CALLS. 847 ascertained to be insufficient to discharge its liabilities (/) ; Hk. IV. chap. 1. iiDr until the claims against the company have boon estab- lishecH'/)- Applications to the judge to make a call are made b}' siun- rwctice m to Cftlls. mons, stating the proposed amount of the call(/i). The suiuinons must be served four clear days at least before the liny iipi'oiuted for making the call on every contributory pro- posed U) be included in it (i). Notice of the intended call limy, however, be given by advertisement if the judge so ilireots {k). The application for a chII must be supported by affidavit, which in ordinary cases is made by tlie official liiiuiciator {I). When an order for a call is made, a copy of it must be order for. -kmI I. served upon each of the contributories included in it, together with a notice specifying the balance due from him in respect (if such call (m). If this notice states that interest will be dinrgcd in case of non-payment on the day named, such inte- rest will be payable (n). But provisions in a coini)any's iiiticles of association for the payment of interest on calls do not apply to calls made in winding up (o). The order need not be advertised unless the judge so directs (yy). If default is liilance order, made by any contributory in payment of the sum which he 1ms thus been required to pay, another and special order, called a balance order, is made, requiring him to pay what is due from him within four days after service (q). Upon non- The Contract Gorforaiw the act § 102. .., and see, as to past mwn- \ke.< case, r^ Ch. m : m\>(' Banner, h. II. 5 II. L. ■2'' Irtooofi's case, 5 l)e 0. M. 1 where the list wa.^ in such it it was I'^^ld iio call cuuU (/) § 102. Helbert v. Banner, I R. H. L. 28 ; Gay's case, 1 i3e (!. M. & G. 347 ; Greenwood's case. Sib. 459. {(j) Contract Gorporation, 2 Ch. 95, noticed infra, p. 850. {h) See rule 33. (0 lb. [k) lb. See the form.s in the HiilfS, sdiedule 3, Nos. 34-37. (0 See ib. No. 33. (ni) See rule 34, and the forms in the diedule, Nos. 36 and 37. As to the modi! of .service, see § 63 ; as to substituted service, see Ellis's ewe, 3 DuG. & S. 172. As to ser- vice abroad, see ante, pp. 687, 688. In Exparte D'Urban, 18 Jur. 781, notice sent by post to a person abroad was held f^ood, thouj,'h it reached him after tlie day ai)p()inted lor payment. As to the affidavits of .service, see Natlc Slate Co., 7 W. K. 319 ; Re Job, 27 Beav. 32. (//) Barrow's case, 3 Ch. 784 ; Kx parte Lintoll, 4 Eq. 184. (o) IVebih Flannel and Timed Cu. , 20 Va\. 360, a case of voluntary windiiii^ up. [p) Rule 34. {q) Rule 35, and see the forms in the schedule, Nos. 38 and 39. This order ouj^ht not to lie is.sued a^'ainst a bankrupt contributory, a^jainst 848 WINDING UP BY THE COURT. Uk. IV. Chai>. 1 Sect. 11. Mode of 011- foreiiig bulalicu order. compliance with this order it may be enforced in tho wav in which orders in the Chancery Division of the High Court me usually enforced (r), i.e., hyji.fa., &c., or by sequestration (s). A writ of ne exeat regno to prevent a contributory from ub- sconding without paying a call nuide upon him will be granted on motion ex parte (t). Calls made in the winding up of a company are specialty debts, binding heirs (m) ; and provision is made for obtainiii" payment out of the real as well as out of the personal estates of deceased contributories (x) ; and the liability to a call is con- sidered as commencing at the time when the shares in respect of which they are made were taken (y) ; and executors as sudi are liable to calls in respect of debts contracted by the coui- pany since their testator's death (?). Calls may be proved against the estate of bankrupt contributories (a). An order for payment of a call might formerly have been registered {b) ; and it may be made the foundation of a cliarginf! order, under 1 & 2 Vict, c. 110 ((•). But a balance order cannot be sued upon (d) ; nor made the foundation of a bankruptcy notice (e) ; nor if made against an executor does it prevent biin from retaining his own debt out of the testator's assets (/). whose estate the call can be proved. Mitchell's case, 5 Ch. 400. (»•) See the act, § 120. As to en- forcing orders in Scotland, see § 121. (s) Ante, p. 697. (t) Mawer's case, 4 De G. & S. 349. See Jackson v. Petrie, 10 Ves. 164. (m) See the act, § 75. Re Mug- ijendge, 10 Eq. 443 ; Buck v. Robson, ib. 629. It was otherwise under the older acts. See Robinson's Exors. case, 6 De G. M. & G. 572. (x) lb., §§ 105 and 100, and see § 76, and ante, p. 813. As to en- forcing payment of a call out of the assets of a deceased Scotch share- holder, see Wryghte v. Lindsay, 3 McQueen, 772. (i/) Ib. § 75. See on this section. Ex parte Haicher. 12 Ch. D, 284 ; Ex parte Mackenzie, 7 Kq. 2-10; Hastie's case, ib. 3, and 4 Ch. 274 ; Martin's Patent Anchor Co. v. Mor- ton, L. II. 3 Q. B. 3l)(j ; Ex purtt Canwell, 4 De G. J. & Sni. 5,31), and the ca.'^es cited in note («). Com- pare Williams v. Harding, L. II, 1 H. L. 9. (z) JJaird's case, 5 Ch. 725 ; Bkb.- ley's case, 13 Beav. 133. and 3 Mac, & G. 726. (a) See, as to this, ante, pp. Ms et seq. (b) Ex parte Thomas, 9 C. B. i-lO (c) Re Connell, 25 L. J. Ch, W9. See R. S. C. Ord. xlvi,, r. I, (d) Chalk, Webb ct Co. v. Tmint. W. N. 1867, p. 159. (e) Ex parte Grimwade, 17 Q, B, D. 357 ; Ex parte Whinney, 13 ib. 476. (/) Intematio7Ml Marine, (ic, C'l V. Hawes, 29 Ch. D. 934. CAIiLS FOU DKnTS. 849 irced in the way in lie Hi^jli Court me ly scquohlriition (s). itvibutory t'r(jm iib- liim will bc! granted npany are specialty made for obtaining ,e personal estates of lity to a call is eon- lie shares in respect [1(1 executors as sueli :itracted by the coni- lalls may be proved ■ies(a). Lt formerly have ken undation of a charging a balance order cannot ition of a bankruptcy Lor does it prevent him stator's assets!/). Mackenzie, 7 Ecj. 240; iase, ib. 3, and 4 Ch. 274 ; Patent Anchor Co. v. Mor- t. 3 Q. B. 3i)(i ; Ex parit I \)c G.J. & Sni. 53!), and cited in notc(u). Com- Hams V. Hardiwj, L. R. 1 ;rd's case, 5 Ch. 725; Wal,.- 13 Beav. 133. and 3 Mac L as to this, aw(c, pp. "55 varte Thomas, 9 C. B. 740. ConneH, 25L.J.Ch.649, 1 C. Orel, xlvi., r. 1. Lk, Wehh & Go. V. rm..™'. r'P-''.'- . 17 ED Larte WhinMh 13 '^- ''J \tmatimialMariM,&^-A I 29 Ch. D. 934. The proceeds of a call made to pay a creditor ot the company '"«• 'V. Clmp. l. niiiv be attached under tlie Common law procedure act, by his jiiil};nieiit creditors (r/). \n order for a call may be appealed from by any oontribu- Appeal from ' ' oriiiT. t.ir\ on wliom it is made («), and he may on the appeal show, it he can, that although his name is on the list of contributories it I'liglit not, in truth, to be there (0. But he will not be nhowed to go into this matter if any considerable time has fliipsed since his name was settled on the list, or if he has iicquiesced in being made a contiibuti)ry {k) ; nor will he be iilliiwed to dispute the validity of the winding-up order (/). Whure 11 person is settled on the list, iind a call is made upon I him, and he resists payment on the ground that he is not a icoiitributoiy, he should apply to have his name removed from thi list, and to have the proceedings to enforce paymtmt of the jiiill stayed ; he must, however, be prepared to pay the call into jt'iiurt (m). The power of liquidators to effect comiiromises with contri- lliiitorios has already been alluded to («)• 2. Calls for debts. The proper mode of providing funds for the payment of a lilit due from a company which is being wound up is by puking a call on its contributories, and not by ordering them imy tiie debt (o). Under the acts of 1848 and 1849, a creditor of a company Right of cruditor kas not entitled, as creditor, to requii'e a call to be made for to be made! |(' 'jee PridmnVs claim, Er parte ■r und .SmiWi, 2 De G. F. & J. \i Sw U. S. C. Ord. xlv. ; Rapier njht, 14 L"h. D. 638. &e ante, \). 697. Longworth's '-■ "f"rs' cast; Jolins. 4(il. L'mdeshuvdniih's case, 4 De G. I i^ 'i. 411. As to obtaining |k money already paid lor calls, 1 i> I'itrk Holroijd, 15 Jur. GOG ; [I'irk Daij, 3 Jur, N. S. lOlG ; ' i to require a call to be made for payment of tlnir alluwcil demands. Under the Companies act, 1862, a creditor who has established his debt against the company is entitled tu have a call made for his p.aymeiit on those contribiitories vii.i \ are liable to calls. The only debts for the payment of which calls can bo iiiiKic. are the debts proved against the company being wound up whether the debt is equitable or legal is uniinpurtant (0 : no call can be made for providing a fund whicli may or iiiav not be wanted (?/)• Nevertheless it was decided in tlie cusf the Contract Corporation (.r), that it is not necessary that ilisj puted debts shall be finally established againwt tlie coiiipiuvj before calls in respect of them are made. Under the Winding-up acts of 1848-49 it was hekl, tli ij before a call could be made on any particular contributiinl settled on the list, his liability to contribute {y) to the debt toj For wlin.t (lolits calls ui.iy be ruiide. Contract Cor- Iioratioii. {p) See (mie, p. 612. (2) See Thompson v. Nonis, 5 De G. & S. G86 ; and Prichard's case, 5 De O. M. & G. 4S4. ;»•) Gleiuhw V. Iluli Glass Co., 15 Beav. 200. (s) See JVryghtes case, 2 De G, M. & Cj. (53(J ; and see Marylehone Bank, 18 Jur. 281. (f) Terrell v, HuUon, 4 H. L. C. 1091. (w) Marylehone Bank, 18 Jur. 281, and see ante, ]). 731, ivs to proviiiii!,' f'uiuls to answer jiossibk' cLiraHfJ landlords. (.(•) 2 Oil. 95. Sue, also, /W'"-ivJ Banner, L. H. 5 11. ];. 2^, wlnl shows that the 'ourl will act I'li liifj estimate.^ of the liiiuidiitur. (;/) Direct liibility to cTi* vfiif not the test of liability to .''j under the Winiliiig-U|) actscf bJH 49. Hopkinsans and UndirtMi] ease, 7 ')e G. M. Hi. 193. UT. CALLS FOR DEBTS. 831 vcVment ulveady, \v;\s lio were liable U it, taia one against tlie i-e(i)). 'Hie iKVv.ih ,o be nuule tov tlu;r annev that a cnMlii,.!; lie acts ut' 1848 nmi , Ixowevev, the (.■viditnr under the actsc," 18 be made for his nwii 3 parties tothewinaii and were thereby ai<- e entith'd as crellit.lr^ -nient of their ullirtviil 1862, a crechtoi' who mvwiiich the call was made, must have been establislied (r) : ''k. IV. ciiiip. 1. '' Sect. 11. company is entitled to lu)se contributones \^to.,a ivtos of the llH"'"^*'"'' ,,, [Divert litlnlity to or*; Jotthete^toflmlalityt" . theWiiuling-upaa^' 'n Hopkinson's and Unln<'-' for it bv no means follows that every person settled on the list ■ is liable to all the calls which it may be necessary to make in the course of winding up the company (a). Thus, if debts had been incurred by the directors, and such debts were provable against the company, but ought, as between the I (liioctors and the shareholders, to be borne by the former, the I call for the ])ayment cf those debts must have been first made loathe directors exclusively. This was held where the directors had expressly guaranteed the shareholders against all loss (b) ; hhere the debts in question had been incurred by the directors in excess of the authority reposed in them (c) ; and where they Ihs.l been contracted by the directors, who had fraudulently jdhtained a covenant for their own indemnity (il). Inapplving these decisions, however, to companies whi^ '1 are Hiiiiil u[) under the Companies act, 1802, it is necessary to bear fumiiid not only the diflerence between the position of creditors Diuldthiit act and the older acts, but also the rule that calls on jt members form part of the general assets of the company, mI are not specifically applicable to any particular debt(('). e proper mode of dealing v.itl; such cases as the above Icr tlie act of 1862, is, if necessary (/'), to make a call on all : contributories, liable as present members, and to pay the Teditors, and afterwards adjust the rights of the contributorios Hi'/'Si'ff;). 12. I i'dUfor !-«.s?,s'. — See infra. I2 Ch. 95 tr, li. 1^ 5 ■fill'.-! a call ought not to be made on the general body of coiitnln-l tories if it appears that any of them ai'e indebted totlicc"' pany in sums which can readily be recovered, and whi recovered, would render the call unnecessary {k). If in an unlimited companj^ there are two classes of slwir holders, viz., holders of shai'es paid up, and holders of sliarfsl not paid up, the latter ought to be called upon to pay up tlnirj shares before any call is made on the former {I). Again, inl limited companies where some of the shares are paid upiiiliil| but others are not, calls ought to be made on the holder- the unpaid-up shares in favour of the holders of the pniil-ii« shares, in order to put all the shureholders on an equality imij (/() I.e., qua contributories, Alex- anilru Palace Co., 23 Ch. D. 297. Si'o § 10!) of L-ie Companiea act, 18G2, and Mari/kho.^e J'...,' >>turk Bank Co., 25 L. J. Ch. ii,50 ; E.k parte Perricr, 7 Ir, Ch. Rep. 2r)(i ; Ex parte IJaijrell, and Ex parte Lomides, 1 Jill'. N. S. 1120. ()■) Sec Oaij'.i ca.ie, 5 De <<. & S. 122, and 1 De (J. M. & G. 347 ; I'r'cee and Eia)is' rase, 2 De G, M. & G. 374. {!.) Ga/.i n(>c, 1 De G. M. & 0. ;)47 ; Underwood's case, 5 it, ' iil See, too, The Marykbone Ikiik, I Jur. 271 ; and sec above, niitts(fj ('0. i'J)- . (l) See List ni>tc, iiml as tii|wj up .shares, ante, p. itvV (//() An(jle.fea t'ullienj I'u., 2 37!), and I Ch. 555; CmM iMinlnn Co., 3 E.(. 6!); *iH*,l'«j jault, and Delhi Corp., b Cli. note ; E', parte Mnwle, ib. M : ''i son ,£■ Co., 5 L. R. Ir. 13!»;.V( townards Gas Co. 15 L. 1!. Ir. vl LIABILITY TO CALLS. 863 s of the contrihitom. unless the regulations of the oom|mny exclude the right to Bk. IV. Chap. 1. suchftcalK"). Agfiin, in some insurance societies calls ought not to he made on jiolicy-holders wlio are niemhers until calls have heen iiiadp on the shareholders (o). In settling the cross claims of contrihutories, a call cannot Calls on a 1 1 i-ii 11 • ,1 • . coiitriliutoiy it seems be made on a contributory otherwise than m respect ,,tiierwise than oithe shares standing against his name in the list of contrihu- !'l 'Aspect of toiies ( j>). But, as already seen, orders can he made for pay- ment of money owing to the company hy its officers {q) ; and in one case it was held that where directors were liable t;, make good losses incui'red by their own fraudulent conduct, til ■ nl'.iiroholders have a right to have a call for the whole amount made on those, or that one of the directors who was Undemo(Ml's case, f) ib, ''ut |t(.o, The MarykboHC Bail I27I ; ami sue al)ove, notes (1 4. Limit ' J' liahilitij to calh. a) Prcsfnt members. Thf extent to which contrihutories are liable to (rails de- Extent of lia- , , , bililv to cill^. prtuls, m the tirst phice, on tlie nature ot the company. lithe company is one, the liability of whose members is not L Wl.ovy 00m- I limited by the Legislature or the Crown, or by registration as limitmi. a limited company, the amount of the calls which may l)e uiiule upon the contrihutories is limi;ed only by the debts and engagements of the company, and tho costs of winding up, and the sums, if any, which may be required for the adjustment of the riijhts of the contrihutories amon. 1. Ill those casos in wliicli, by the constitution of the cuinijanv, '■ — — the liability of its shareholders as between themsehes i, limited to the amount of their respective shares, a call mav be made upon them to the full amount of those shares not alieadv paid up (/) ; and even beyond that amount, if, notwitlistandiurt the constitution of the company, the liability of tlio shmv- holders to the creditors is unlimited (»)• But if the liaUlitv of the siiareholders is, as between them and the civditois of the company, limited to the amount unpaid up of their it- spective shares, then no calls for the payment of the dtlts of the company can be made beyond the same aiiioimt(/i; although even then the liability for calls in respect of idsts will be unlimited (7). If, on the other hand, the company is one, tlie liiibihtv ii whose members is limited by tlie Legislature, or the Crown, .-1 by registration as a limited company, the amount of calls wliii.L may b'; made upon the contributories cannot exceed the limit j imposed by the Legislature or the Crown, or by the Compaiiid act, 1862, as the case may be. With respect to companies formed and registered uiiiler ilie last-mentioned act with limited liability, the act declares, 1. That in the case of a company limited by shares, 110 1;.- tribution shall be required from any member exceeding t!''! amount, if any, unpaid on he shares, in respect of which !;- liable as a present or a past member {z) ; and 2. That in the case of a company limited by guarantee, 11 > contribution shall be required from any member exceeding tltfl amount of the undertaking entered into on his behalf by tlw| memorandum of association ((f)- With respect, liowevtT, t) •_'. Where cfn.i- ])\iiy is liniitc'l. l')V simrcs. Uiiai'iuiUi.', (0 Tulhorx (■('.■.", .5 [)u (1 >.\: S. 386. ((/) llveemoood's cane, 3 De G. M. I'c (.!. 450, leversiuf^ S. C, 2 Sm, iV Cj. 1)5. See Manjlebone Joint Utock Hanldmj Co., 25 L. J. Ch. 650. (.') Prince of JFales Life yl .■.■•■>■ i/c. Sociilij, .fdhuH. 80, attirmed 3 Di- li. & J. C()0. See, also, tlie C'um- jiauieii act, 1862, § 38, cl. 6 ; and untc, pj). 246 ct scq. ((/) Ldkbml.ije V. Adams, 13 E4. 547. (•-) § 38, il. 4. A^ to rails hu; holders of fully paid-up slmreswui have received back part of i:i«| capital or as.sets of the comiiaav,] compare Cardiff Coal Co., i X. 562, and 11 W. K. 1007, with '.V-j diff, <.ir.,Coal Co. v. No,l ; ;alis ill respect of n.ists V is one, the liiibility mI' ilature, or the Crown, vi] he amount of calls wliicL j cannot exceed the limit | wn, or by the Compunits and registered umlertlie ,y, the act declares, mited i>y shares, \w I'Jii- member exceeding iL^j in respect of wliiclilk'isl ); and limited by giuiraiiteeji'l V member exceeding t!.'! uto on his behalf bytlwj ith respect, howi-vd', t' l§;}8, cl. 4. AMo'alk'u::;^ I's of fully paid-up sliiUOJ»::'l received buck [KU't "f ■ | ll or assets of the om\auie« act, IS?!), 'i- This act repealed § 182 of the i' ii'ianies ai't, 1 «(!:>. (-■) A)'t^, pp. IKi, 25:5. ( / ) Companies act, 187'.*, § 4, aii, the existing members are unable to pay their contril)uti()ibii, In giving effect to these provisions, considerable difficnltih arise. Such of them as affect the liability of past members tu be settled on the list of contributories have been akemlv alluded to (»() ; but assuming a past member to be properly uii the list, the question still remains what calls can be made iipii; him ? He is not liable to any call in respect of any debt i liability contracted after he ceased to be a member (h); but Ik is liable in respect of all debts contracted before that time ami subsisting at the date of the winding-up order, even altlioiii;li they were contracted before he became a member (a) ; and the assets of tlie company, including the contributions nf tin { present members, are not sufficient to discharge the wholt "I the liabilities of the company, the past members become \\A to have a call niadi' upon them in respect of those debts, lint I the amount of the call cannot exceed the luipaid residue cfi debts in respect of which the past members are liable to be put I OH the list : all payments made by the liquidator out ut !iie assets of the company in respect of those debts enure for tliel benefit >'!' the past members and diminish their liabihty i 11 Jur. N. S. nrill, L. «'., whi.h turned on the Industrial and Pro- vident Soeifities act. ■ (i) § 38, rl. 1, lud § 84. (jfc) § 38, cl. 2. (/) § 38, cl. 3, Ssv a.'i to past an-l present nieniliers ol' iiisuranee (.oiu panics, Henkcth's roue, 13 Ch. D. tii>3 ; Bath's casf, 8 Ch. U. 3.34. Bath's case, 1 1 «.'li. l^, 3»C, is overrulef ilw discharge tlie wliolt J members become lialilt i ct of those debts. But] K' unpaid residue of ilit bers are liable to be pttl] liquidator out uf ili liose debts enure tor tliej linish their liability i 111 limited companies the liability of each past member is ^^- ^^'' C'"*!'- ^' further limited by the amount unpaid up of his shares. — - Again, the money raised by calls made on past members No tniushalliiif,' becomes part of the general assets of the company, applicable to the payment of all its debts and liabilities, without reference to the time when they were contracted (q), and also to the costs of winding up {)'). There is no marshalling either of debts or of assets for the benefit cither of creditors or of members (.s). I'iie consequences of this as regards costs will be seen here- after (0- 2. As regards companies not formed um'3r the Companies -i. other act, l'-i<)2, the liability of past members to calls depends on sections 19(1 and 200 («), which do not exonerate members who lirtve retired more than a year before the commencement of the winding up from liability. Consequently, if there are debts to which past members are still liable, and which present mem- bers cannot pay (x), calls must be made on the past members. The amount of call must, it is apprehended, be decided on the principles explained when considering the liability of these persons to be on the list of contributories (/y). As lias been already pointed out, past members are not in the position of sureties, and are not discharged by compro- mises made with present members before the past members are settled on the list (z) ; nor by the forfeiture of their shares (a). 6. Sct-oJ)' (ujainst :alls. If the company is indebted to a contributory on whom a call Set-off against is made, his right to set ofi' the amount due to him from the ""^ call upon him has to be considered. With reference to this .•1»^, I'p. B16e^'.•f'/. 38, ^ 1. 2, ami i't'C § r'3 case, A En. 458, ami :K'l.| J>er(s case, (i &!• "'O:'."! H. L. 28, imh HomJWw"! Wehh V. //'/nj/iH, L. r *j 11. n,,U's case ami Moniu'- .healing, 8 Ch. 800; fi'^ set the same cases on the tirst hear- ing, 7 Ch. 200, ami G Ch. 800. (7) WM V. Whiffin, L. 11. 5 H. L. 71 1, alHiiuing Briton, dr., Lifi Ass., 5 111. 428. (r) lb. (s) See IVebh v. Ulnffin, L. R. 5 U. L, 711, correcting Brvit's case, 6 Ch, 800, and Morris's case, 7 ib. [ 20(1, and LrdCs cast and Mmrit's cau!, 8 C'h. ROO, on the rehearing. (t) See in/ra, § 12. (m) See, as to registered eom- jianies, § 1!)6, cl. .5, and us to un- registered eouipanies, § 200. (./■) See, as to this, ante, 749 and 817. (y) Ante, p. 818. («) Ante, p. 821. (a) Ante, p. 845. 858 MINDING t:P 1!Y THK COURT. Ill liinitcil comiianies. ]5k, IV. Cli.ip. 1. subject, it is imiiortaiit to determine whether his claim aS' Sect. 11. ' .... . . "' the company arises simply from his being a menilnr of company ; or Avhether it arises from some transaction wit] conipanj' which would give him a claim against it iveii i were not a membcn-. If his claim is of the first dcscri]! e.g., if it is a claim to dividends or profits, no set-off is alio to the prejudice of the creditors of the company ; but claim must be taken into account in finally adjusting the li of the contributories amongst themselves ; and this rule ap as well to unlimited as to limited companies (/>). If, on other hand, his claim is of the second description, then ordinary doctrines of set-otl" apply in his favour if llie com is unlimited, but not if it is limited (<-•)• In other wi where the company is limited, no set-off is allowed, as aj.'! the company, except to the extent of setting off a call i and payable b}' a contributory against a dividend payalil him in respect of his debt : whilst if the company is luilim any debt owing by it to a contributory, otherwise thai respect of his shares, may be set off against calls made i him {(}). In this respect the law as to unlimited companies same as it was under the Winding-up acts of 1848~l!l. them it was held that where the company was indebtei contributory otherwise than in respect to his shares might set off the amount of that debt from calls made him (/); and, if necessary, calls for his reiinbursciiinit made on the other contributories {(j) ; and unless tlieir lial as between him and them, was clearly limited to tlie an of their respective shares, it was no answer to a call on for his indemnity, that they had already paid up their s in full (/(). [n unlimited cnmiianics. (/j) See § 38, cl. 7, and § 101. (<■) II.. Black d- Co.'s case, 8 Ch. :2.')4. § 10 of tliL' Judicature act, 187'), has not chauj^ed the law. Gill's case, 12 Ch. D. 755. (d) Sec, on this subject, ante, jip. 741 ct seq. (e) Sec 11 & 12 Vict. c. 4.'), §01. (/) Ex paiie Chijijiendale, 4 Da ^x. M. & G. li). (t1' is allownl, of the conH)!iiiy ; but tli..' 1 finally adjusting the ii'^!it> selves ; and this nilu npplie- companies (/>). If, "u the eoond description, then tlic in his favour if tlie coiiii>i\uy nited ((.•). In other words, set-off is allowed, as ajjainst ,t of setting off a cull iiiuil- ;ainst a dividend payable t. if the company is unlimited ributory, otherwise than in off against calls made wf')^ 1 unlimited companies is tlie np acts of 1848-lit. l\k company was indebted tM;> respect to his shares d'), '■« debt from calls made upon for his rehuburseiiiriit were (r/) ; and unless their liability, learly limited to the amouir. no answer to a call outkuij already paid up their sliav« M. & 0. 1!). (,/) Manilcbone Joint Stock i.u ,i„,k, 25L. J,Ch..i50V..C,.! parte Lowndes, 1 Jur. N. b- ]^f' Ex parte Sahimrk, 2 Jur. >• h.;'- {h) Marylehuae Joint Htockhf-- imi Co., 25 L. J. Ch. f>5>'. COSTS. 850 ^Vhere an order is made to wind up a limited company, and ''''^- ^^'- ^'•'■'^P' '• the costs are ordered to be paid by the company to the ])eti- . • i-i.1 1 i. • i.1 i ui 1 I Set-off ngf.iiist tioner. he is entitled to receive these costs, altliongh lie may costs. 1,,. a debtor to the company before they are paid (i). SUCTION XII.— COSTS. The ousts of winding up a comi)any are usually so large, Costs u( winding that the rules relating to their payment are of great practical "''' iiniiortance. In fact, it is by no means an uncommon circuiu- staiice for contributories to have heavier calls made upon them tor the payment of costs than for all other i)urposes put together!/). In considering the question of costs, the first point to determine is, what costs are payable l)y the company, ;iiid the next is, how and by whom such costs are to be paid. First, (IS to the costs imiinhlc hi/ the compain/. The costs of the petition for winding up a company have liten already alluded to {ante, p. 658). The costs of the proceedings subsequent to the winding- <-'»*** I'f . . , . lictition. ii[i(/.) order may be divided into two classes, according as they arc or are not incurred in litigation. 'ITie non-litiy.ious ex- *'""''* "f. ~ ^ liroccc'diilg jienses are borne by the company, unless otherwise directed by sui.seiiuent to , . , . . ' , . ,. ' -^ ... ,' the winiliiif;- tiie judge acting in the winding up (/). Jiut provision is made „,, ,,i,iei. against burdening the company with the costs of persons who, tor their own better protection, desire to attend the winding- up proceedings ; they can only do so at their own expense. (i) See The General Kreluinyr BimJ;, 4 Eij. 1.38 ; and see anti-, p. T15, as to Costs and debts becdining 'liie from the uomiiany whilst in liiiuidation. (i) The power of the taxinj;- t master to disallow costs has 'leen [ miicli increased by the urdev of May, ;iH6!),LXV.,r. 27 (38a). (k) Tiie Court cannot order the '*tj of an action brouglit for thi; ";uetit of tho company bel'ore the windini; up and subseiiuently dis- missed by consent to be paid out of tlie company's assets : Hull Cciitinl Dnrpmj Co., 15 Cli. D. 320. (/) In Kr farte Hanlingc, 1 N. H. 40, it was hold that tlie ofticia! mana.^er of a Conqiauy was not en- titled to costs incurred under an order made by a court having no jurisdiction. Compare Arthnr Aver- aye Association, 3 Ch. I). 522. f'' ■&r i^mi^mf HCO WINIUNfi UP ItV TIIK COimT, '"* ^y; 'I'o''' '' '^'"^ "' ^'"'''" "'l«'i>). 'I'liis ihscrctidn, howcvei', is not (o he exei'cised arbitrarily ; and wlicrc tlmi are no I'ensous to the contrary, the costs incurred liv ;iin particular litipition must be born»! by the unsu(!(H?8sl'iil imrtv. K.N iiartoSiilicli. 'pi,;^ y^^\^, ^y„„ expressly laid down in /vc ixnif Sirlidl (yj), im,! it has been held to apply to appeals (7). 'i'he rule, iiKinnviv, ai)plies as well in Cavoiu' of as against the conipmiy, iind imt only in cases ol' litij^ation betwecMi the company and its ((in- trih\itories, but also in those between it and non-cnntriluitorics, or betwi'en dill'erent (dasses of contributories disngmin!; amongst themselves. For example, if a contiibutory iippliis unsuccessfully to be removed from the list (/•), oi' nnsucccsslullv resists bi'injf put on it («), or applies unsuccessfully to Imvi another person ])ut on (/), or apjx'als unsuccessfully !i<,'aiiist iiii order makiuf,', or refusinj^ to make, a call {11), or if ho luuvi, unsuccessfully to discbarge the winding-up order (( ), or tu disturb u compromise made with other contributories (r), uiil a person claiming to bo a creditor ai)peals against a (lisidlnw- ance of his d(d)t, and be fails on the api>eal (//) ; in all llit"-t rj (//() SfL' \\n\v (U). (h) See § KIV. (0) See, a.s to costs in tlieStannuvy ("ourts, I'Jx parte J'abncr, 7 Vh. 28(i. (/)) 1 Sim. N. S. 187. See, also, l\.i parte Ilairji'a rfpnsoitativcK, 2 Dr. &Sni. ;j2l ; hJjpartt: (lalwfi andl'id; 3 Eij. (J33, (i;?4. (7) Kx part<- Hall, 1 l)e G. M. ^: G. 1. Bntf^iiGSirhdl'i' '-,:.■<€, :3Ch. 11!). (/•) Examidcs of this iu-e very numerous. See, amongst others, Ex parte Oal:es and I'lfk, 3 E([. C33, 634 ; SichcU'ii east, 1 Sim. N. S. 187 ; lieavelnjs caxc, 1 Dc U. & S. 550 ; Bernard's case, 5 ib. 283 ; and (18 to appeals, Ex parte Mansfield, 2 Mac. & G. 57 ; Lawes's case, 1 De U. M. & G. -121 ; titralfon's Eh- cutors case, ih. 576 ; (lihsun's cm'.,i DeG. & J. 275. (.s) Ex parte Harrii's reprcMntatm 2 iJr. & Sm. 321; Goirer'.t (■((.*, 6 Ej. 77. (0 Biuig'sease, 2 Dr. i*t Sin. 4:i2, («) Ex parte Cropper, I l)i' (1. Jl, & (.!. 1-17 ; Ex parte VhipiHiuhh.i ill. 1!); Londcsl)orouijliseitfe,i\'.-i\\- Ex parte IVvuimer, 2 ih. 665, (v) Ex parte JVoolmcr,b]k^''.i\ S. 117, and 2 De G. M. & G.tR;] Clarke's case, 1 K. & J. 22. (.c) Lucy's case, 4De G. M.&(;.K (1/) Ex parte Lloyd, 1 Sim, N. ^ 248 ; WryglMs case, 2 De G. M. &''. 636. in-. COSTS. 801 '118(1 1(» till' comiMiiiv. H to 1>(' prosccutiMl, ii iiiii)nny (n). \V llSlllll Kt'llSC (if till ()). 'I'liis ilisci'ctioii, ily ; mill wliov tliciv osts iiiciirn'il liy ini\ ic unH»i(!c.(!Sst'ul imrtv. • /)((;•/(' Sichill l/i), mill Tlic rule, miii'i'dwr, .\\v (•onii)iiny, mid iml coiiipiuiy iiiiil its cull- 111(1 iioii-i'iiiiti'ibutoi'k's, [•ilmtorios ilisiigrifiii" 11 c'()iilril)iit<>ry n\\\\\\\i st (»•). <"' unsiu'ci'ssiiillv iUisucfi'SsluUy to hiiVf isiu'CHisst'ully apiiust mi 1,11 (((), or il' ho niovi iu^'-up oi'dor (' ), I'l' t" contributorios (r),oiil 'Ills iif^ainst a (lisullow- pi)i'ul (//) ; in i>ll tli^'^*^ ^ U. 421 ; SIralfon'i Kh- isi', il). 576 ; (lilmon's m.<:,i .1.275. purti: r,(irr!i'sri'iiresnilatin>. Sill. 321; (!otrcr'!< m<;^l'[' »;/(/'« «(.s«, 2 Dr. &Siii.-i.ii :.," parte Cropjin; 1 De 0. M. 7 ; Ex parte Chipinnihiki jAni(hKlwrouiih'sttt.-:(;ik-i\'i- e IVoolmer, 2 il). C65. :x parte JVoolmcr,b Dfi^.i Mid 2 Dc 0. iM.&G.Wio; , case, 1 K. & J. 22. af|/'sc(we,4Di'O.M.&(;,3.%| ix parte Lloyd, 1 Sim. N. ?• 7ryghte'scase,2'DeGM^^'' mill Himiliu" cusoH tlio motion or tlut npnciil will, as u rule, hr '"<. IV. (Jimp. I. Sc«t. 12. (Ii:,iiiis8etl with coHts. So wluiH! the oIVkmh! Ii<|iii(liitnr, on the pint of tlir coinpaiiy, iiiisiiri'i'ssl'iilly appeals iif^'iiiiist iiii order exeliidiii^ ii person tiDiii the list ol' coiitrihutorius (z), or uiisiici'essriilly resists an iiiiin'iil hy a person put on tlu' list, and seekiii^^' to have his iiiaiR' removed iVom it {n), or an iippoiil a<.;ainst an order lor a cull (''). <"' 11" appeal uj^'iiiiist tho disullowmice of a creditor's iliiaaiul ((.'). <"' 'I" iippcal a^'iiinst an ord(^r excliidin-,' a emilii- liiitoi'v h'Diii iittonilaiiee hel'ore the .Iiidfife iietinj^ in the wiiiilinj| up (,/), or an appeal iif^'ainst an order for tho deliveiy up of ilociimonts (a) ; in these and similar cases the ollieial liqiii- iliitor, MS a rule, is either ordered to pay the costs, reinihursiiij^ liiiusell' iroiii the assets of tho oonipauy (_/') ; oi- to pay the costs out of the assets ((/). How(!ver, where the case of oik; individual is s(!l(!ctod to Ri;|iins(;iitativo niii'eseiit that of a (dass, th(! general riih; is not to iiiiikc! him piiy tlu! co.sts oven if he fails ; and sometimes the company is iiidered to pay them (/(), but not as between solicitor and client ((). ;•.) As in MaiaUlay w's nue, 3 Uc O. & S. 234 ; il'tiiwitrinii's case, 2 De O. M. iS; (j. •Ki. (V) As in UpfdVs case, 1 Sim. N. >>. :!!).') ; IlniUer's case, ib. 435 ; .Vi/iiv(/( and Elliutl's case, 3 Di; (!. ■M. & G. 2.J4. ') < 'ni.doii's case, 5 De O. & S. (•') tj.c parte Splatter's executors, 5 Df G. & .S. 34. {e) Mi's case, 3 De G. & S. 170. (/) Dominiim of Canada Plnmba/jo Co., 27 Gil. D. 33 ; CamphdVs case, ' (!h. D. p. 175; Ferrao's case, <) Cli. 355; SIrhell's case, 3 (.'li. p. 121; and compare in buiii- c?. .<$• ^^ I/a y. 1.0 I.I 1.25 *f^ ilM 12.5 140 1 2.2 2.0 1= U III 1.6 vQ <^ /a o /a / /A Photographic Sciences Corporation #' ^ A \ ^\% «5 i) As in Hole's case, 3 De 0. & S. 241 ; Ej: ixirtc Ptriltaiu, 1 Sim. N. S. 281. But see Ex parte Sickil, ib. 187, and Markwell'.i lusc, i Ik G. & S. 528. (n) As in Stanhope's cit.ir, 3 Dt H, & S. 198. ( p) As in JHrd's cam; 1 Sim. N. S. 47 ; Holt'n case, ib. 3M» ; AV, . Executors' case, 3 De G. 51. k li. 272 ; iroolla^tton's case, 5 Jur. N. > 617, and 4 De G. & J. 437. (7) As in Cockburn's case, 4 De i'. & S. 177 ; Sluirp and Jamis'snuf.l De G. M. & G. .565. (r) See fi^orcest^r Corn IucImi-k Co., 3 De G. M. & G. 180 ; Tdft/i case, 5 De G. & S. 380 ; PrM 'V.l Evans's C(ue, 2 De O. M. & I}. 374 COSTS. IT. ive stated, its appli- uently Imppens, Unit ept that tliose of the •ompany. It is veiv ill can be relied \\\w\\ to the rtisci'clion ot ire are cases in wliicli where he has unsuc- utory under (.'ircum- where he has been ntation or fraud il); IS been doubtful (mi ; on the authority of n (,i) ; where the .bulge times taken (Utfevdit has decided in favour 'tor has succeeded in lich he woubl ndt liuvi' .mbiguous conduct ('|) ; ^ere one side bus been official liquidator, are ly, and if necessary by Kx parte Brittain, 1 Sim. But see 7?x }Mrte iiiM. and Markwdl'.-' mse, 5 l>e J28. in Stanhopc'a en-', 3 Dt »■. L in ninVs case, 1 Sim. >'■ JioU'x rase, ib. 38i>; K>o.- h case, 3 De 0. M. ^ 'i \oolla^ton's case,!i Jur. N.> 4 De O. & J- 437. , in Cockbtirn's ctise, 4 l)e '■■ ; Sluirp and Jonws'." f 34. ee, as to calls for costs, Tf' ies act, l8(i-2, §§ 38, l02. , § 110. Ami see LlOTiima, da Plumbago C'o.,23Cb.D. I in full out of the assets if there are any (i) ; but the ordinary costs of proving a debt in chambers are usually added to I it iti. Where the assets are deficient, even for the payment of costs, Aiaets deficient. |tli( costs of the petition to wind up are entitled to priority lover the other costs, and even over those of the liquidator (l) : Inrxt come tlie costs of any successful litigant which the liqui- (litor has been ordered to pay (m) ; next comes the liquidator's jown costs (n) ; and then the other costs without priority inter L ni. But this order of payment is ordy applicable to assets jiioi specifically charged ; assets whicli are mortgaged are not liable as against the mortgagee to any costs not incurred for lienefit (/') : his principal and interest must be paid out of till mortgaged property in pi'iority even to costs incurred by hquidator in carrying on the company's business with a V to increase its assets, and therein to benefit its creditors keiierally (q) ; but tlie costs of realising the security are a first prge on the fund produced by it (r). A call for costs may, if necessary, be made before all the i-ets are got in (»), and bef*^ :e the exact amount of the costs :iblp has been ascertained by taxation (/) ; and a call for Madrid Hank v. Pelly, 7 Eq. "i; Buikij and Lcetham's case, 8 i. !)4. See. also, Ex parte Clark, 7 I JaO ; Ex parte Smith, 3 Ch. 125 ; ^v-ml Buildvuj Land Co., 15 L. ,lr.47. |(ii Ei parte Wnjht and Gamble, 1. 123. i Av.dk\j Hull Cotton Spinning [,'iE(i. 245. j(«i) This is 80 whether the lu[ui- w was ordered to ])ay the costs ''( the couipaiiy's assets, Home ^Hmt Society, 14 Ch. D. 1C7, or hf them liiniself with liberty to jt^Ii himself out of the assets, •"'tioH of Canada Plumbago Co., [til. D. 33, overruling Dronjield «»MCoa/C'o., 23 Ch. I). 611. ^'ut his remuneration, Re LC. Massey, 9 Eq. 367. (0) E.C parte Percival, 6 Eq. 519. (p) See Oriental Hotels Co., 12 Eq. 126. (o'l Ex parte Grissell, 3 Ch. D. 411, and conqjare Marine Mansions Co., 4 Eq. p. 611. Where part of the a.ssets have been severed from the rest to meet a particular claim, see Cook's claim (2), 18 Eq. 655. (r) See the oases in the last two notes, and compare Batten v. Wedge- wood Co^ >\ 122, and 1 De G. M. & G. 347. (h) lb. (c) Professional Life Ass. ''»., ^l Ch. 167 ; Agriculturist CaUlt lA Co., 10 Ch. 1. See, further, X«\ dental Death Ins. Co., 7 Ch, 568. PB 3UIIT. ble to it, in proportioii ispectivcly (u). yment of costs muy be ibts, is only to be m:ulf re, where in win(liii<.' up curred, for which a n\\ jfore their UiihiUtiis td iiscertained, it was luU ;t is, therefore, the liutv rtain to what costs tmli , Uable, and to make the It is, however, to W incurred in procecdiiiiis, ibutories as a body, they ts of those proceediniis ;en unsuccessfully, uiii may have already p:iiil iiarge of the comi)iiiiv'> resulting from this 1;M irds (h). is, the policies of wlmh company, the costs of ted from them, but m ding up; t.^., they m«i| ies (c). calls in respect of costs, ,nd registered under the I instruction of the enilvl th the second and tliinij & G. 374 ; Ex pnrte WoMl ■ Gay's C(uie, 5 De 0. i n| a 1 De G. M. & a. 347. Bb. , 'rofessional Life Ass. '«■- 'I 7 ; Agrkidturid CMk '«^| B) Ch. 1. See, further, .iv Death Ins. Co., ^ ^^' DISTRIBUTION OP SUHPH'S ASSETS. 867 fluuses of the same section (d). Tlio early part of § 38 ren- Bk- IV. Chap. 1. Jerc past members liable for costs ; and the second luid third ' — (Iftiises ai)parently do not exenii)t them therefrom. As regards (ompanies registered, but not formed under the act (e), and as regards unregistered companies (/), the provisions of the act are very imperfect, and at present there are no decisions on them. As regft'.ds companies formed and registered under the Hrett'g cane, (dnipanies act, 1862, it was settled in BretVa case (7), that if there are no debts in respect of which a past member can be made a contributory no calls can be made upon him for any costs. But if there are any such debts a call for some costs may be made on him ; but only apparently for costs incurred in settling the list of past members and of a<1justing such equities (Hfer .se as may require adjustment (//). At the same time whatever sum is raised by a call on a past member is applicable to pay all debts and costs for which the company liable. SECTION XIII.— DISTRIBDTION OP SURPLUS ASSETS, AXD FINAL DISSOLUTION OF THE CU.MP.VNY. .\fter the debts, liabilities, and losses of the company have Distribution of Ikon paid, discharged, and made good, and provision has been ''"'T"^' I made to meet future contingent claims (i), and the cross claims ptween the contributories have been settled, and the costs of Iwinding up have been paid or provided for, there remains but jto distribute the surplus assets of the company, if any there Ibe {k). The cases in wliich any surplus is left are rare, but ('<)See, also, §§ 75, 110, 196, el. |5. 210, and as to voluntory winding |iir. § 144. (!) See § 196, cl. 5. (/) See § 200. (3) 8 Ch. m), and 6 ib. 800. See f"% p. 856. "1) See 8 Ch. 808 et seq., and 'ifirs/i's case, 13 Eq. 388. (t) Gooch v. London Banking Aa- socuttion, 32 Ch. D. 41 ; Lord Elphin- stmie v. Monkland Iron Co., 11 App. Ca. 332. (k) Companies act, 1862, § 109. See as to a voluntary society not governed by the Corajjanies acts, Broicn v. Dak, 9 Ch. D. 78. 3 K 2 868 WINDING UP BY 'HE COUUT. 8iiii)lu(i may not be profit. PrefiTonco shareholders. Bk. IV. Chap. 1. the possibility of there being a surplus, shows that a person '- — '■ — may be prejudiced by being excluded from tho list of contribu- toiies, although, in point of fact, those who are so excludtd seldom have reason to complain. A person, however, upjn whom calls can be made, will not be allowed to remain on the list so long as he thinks it will be for his benefit to continue there, and then insist on his name being removed when he begins to apprehend that it will be to his prejudice {/). Although there may be surplus assets to be divided, it bvno means follows that the company has made any profit. If tht surplus is not sufficient to return to the sharelioldir.s thf amount of capital paid up by them, there has been a loss; an( the question to be decided in distributing the surplus is then how that loss is to be borne. If on the other hand the surplus is more than sufficient to return to each shareholder the capita paid up by him, there is a profit and the question then is hew the profits are lo be shared. If there has been a loss the holders of shares entitled to a preference in respect of dividends payable out of profits are not entitled to any preference in respect of tlio surjil assets (m). If there has been a profit the question is iiwrc difficult, and depends upon whether (according to the ojid pany's act, charter, deed, or articles) the excess of the a.«set« over the capital paid up, though profit in one sense, constitiite; a fund divisible as profits amongst the holders of the preferon« shares. Thus in the Bridgeivater Navigation Co., the articles association provided for the issue of preference shares, an] F" contained a clause that no dividends should be paid except "Uij of the profits of the company arising from the business of tk company as shown upon the balance sheet, which should frouj time to time have been examined and passed by the auditorsj Shares were afterwards issued entitling the holders to a divi- dend of 5 per cent, taking precedence of all dividends m claims of the holders of ordinary shares. The company siil-j sequently sold its business for a sum greatly in excess of flil (Z) See Utidenvood's case, 5 De Q. party, 5 Eq. 519 ; Gnffiths v. I'm M. & G. 700, per Turner, L. J. 6 Ch. D. 511. (m) Londo7i India Rubber Com- Briilgcwatcr Navigatiou Company. )imT. DISTRIBUTION OF STIRPLITS ASSETS. 869 3, shows that a person m tho list of contiibu- who are so excludul person, however, up)n owed to remain on tlio his benefit to coiitiiiuf eing removed when hi lis prejudice (/). s to be divided, it b\ no iiade any profit. If the ) the sharelioldt'is tlif ire has been a loss ; and ting the surphis is thei; le other hand the surplus h shareholder the capital the question then is lict s of shares entitled to a lyable out of profits are respect of the suqilu^ )fit the question is more j (according to the com- the excess of the assas | t in one sense, constitules holders of the prefcifiicf Hon Co., the articles a\ >f preference shares, anil should be paid except ill I from the business of m sheet, which should im\ ,d passed by the auditors. ing the holders to a & -nee of all dividends J ares. The compam* greatly in excess of M I, 5 Eq. 619; Griffiths v.m^ I. D. 511. was needed to return the paid-up capital ; the pre fere no (> share- ^^- IV. Chap, l, holders cuumed to receive out of tins excess a preferential dividend of 5 per cent, and to share the balance with the (iilinary shareholders, while the ordinary sharehol.lers con- tended that the preference shareholders were not entitled to ntcivo anything out of this excess beyond a dividend of 5 per cent. It was held that under the articles of association tho liolders of i)reference shares were only entitled to a dividend of 5 per cent, and all other proflts belonged to tho ordinary >liareii(dders, but that the profit arising from the compulsory sale was not profit in respect of which dividends might have beon declared, and that the clauses relating to dividends were 111 iiu way applicable to the fund to be divided (»)• 'f he con- stitution of the company may however be such as to confer on sDine shareholders a preference as to capital, and not only as to dividends, and where this is the case the surplus assets must be applied accordingly (o). Questions also arise as to the mode in which assets are to Paid-up slmrc- be divided when some shareholders have paid up more on their shares than others. If there is a loss, the loss in the absence of express agreement (p) is to be borne by all shareholders equally, and the shareholders who have paid up less than others will not be allowed to share in the surplus until those, who have paid up more than they, have been put on an equality with them. This may be done either by returning to share- holders, who have paid up more than the others, the excess so paid by them {q) or by making a call on the shareholders, who have paid less than the others (r). If there is a profit, and the dividends of the company whilst it has been canying on business have been paiil upon the (n) Bridyncater Navigation Co., 39 Ch. I). 1. See, too, the remark.^ of |N'jrth, J., i)p. 12 & 13, as to the possibility of some funds comin(,' to the liquidator's hands being divisi1)le I «.« profite. (o) Bangor v. Port Afadoc Slate \udRluh('o., 20 Eq. 59. (p) As in Eclipse Gold Mining Co., , n Eq. 490. See, also, Holyfnrd Mining Co., It. h. R. 3 Eq. 208. ('/) As in Ex parte Maud*:, 6 Ch. 61 ; Scinde, J'unjaub, and Delhi Cor- poration, 6 Ch. 53, note. See, also, Newtoionards Gas Co., 15 L. R., Ir, 61. (r) As in Anglesea Colliery Co., 1 Ch. 655, and 2 Eq. 379 ; Crookliaven Mining Co., 3 Eq, 69. 870 WINDINO UP BY THE COURT. m m • i^I Termination of winding up. ^i Bk. IV. Ohap. 1. nmouut of capital paid up, the surplus will in the absence of ^ L-J. — : — any provision to the contrarj' be divided in the same maimer (h) If the company has treated the amount paid up by sonic slian- hoiders in excess of others, as an advance to it, upon wiiidi it has been paying interest, these shareholders will be entitkd to a return of this advance with interest up to the date of reimy- ment before the other shareholders receive anything and then the surplus will be divided between the two classic equally (^\ Upon the termination of the proceedings in clninibers lur the winding up of a company, the ofticial liquidator is required to bring in a balance sheet and pass his final account |»|, Upon payment, as he may be directed, of the balance, if any, in his hands, the recognisance of himself and his sureties may be vacated (*•)• a»d a certificate that the ail'airs of the company have been completely wound up is to be made l)y the chief clerk (j/). When the affairs of the company have been completely wound up, the Court is required to make an order (s) dissolviiij; the company as from the date of the order (a) ; and notice oi this order is forthwith to be given by the ofhcial liquidator to the registrar of joint-stock companies, who is required to umke a minute in his books of the company's dissolution (b). The order dissolves the company (c). The books of the company are to be disposed of ns tin Coui't may direct (il). The documents relating to tiic winding! Order dissolving comiiuny. Books of com- pany. (s) Bridgewuter Navigation Co., 3t) Ch. D. 1 ; She}ypard v. Scinde, Pun- jaub, and Delhi Rail. Co., 36 W. IJ. 1, since afttnned by the House of Lords ; Homes v. Currie, 1 K. & J. 605. (<) Exchange Drapery Co., 38 Ch. D. 171. They could not claim in- terest after the winding up against creditors. (?0 Rule 65. (x) Rule 65. (v) Rule 66, find see the form in schedu'" 5, No. 55, (s) See the form in the 3rd sche- dule to the rules, No. 56. (a) § 111, and see rule 6(5. (6) §§ 112 and 11,3. (c) § 111. As to thejurisdktinii of the Court over dissolved coiii- panies, see Urookhaven Mininij '.' ,, 3 Eq, 69 ; Pinto Silver Mining i.\ 8 Ch, D. 273 ; London ml LV- donian Murine Insurance Co., 11 < !: D. 140, (rf) § 155. As to the liability 'Ji a liquidator to produce the books in an action to which he Is a party, * Lomlmi and Yorkshire Bank v. Coo/i. 15 Q. B. D. 473. HIT. •ill in the absence of I the same manner (i! aid up by some share- e to it, upon whicli it lers will be entitled Id I to the (lute of repay- •eceive anytliing ami ?een the two classl^ lings in chiuubers tor I liquidator is required his final account i«), >f the balance, if aiiy, f and his sureties may affairs of the company be made by the iliief have been completely ! an order (s) dissolviiij; rder (a) ; and notice ot .he official liquidator to ho is re(iuired to uwke issolution {h). be disposed of (is the •elating to the wiiuliiijj le rules, No. 56. 11, and see rule 66. 112 and 113. 11. As to the ,iuris(luti"n ourt over dissolved com- e Crookhaven Mimnink\.Cooi^'' D. 473. SURPLrS A8SKTS OV BUILDINO SOOIETIEfl. 871 ii|,, ami the book containing the official liipiidator's account, ^^- IV. Chap. 1. are to be deposited in the Record and Writ Clerk's Office (c). — ^ — '-'- — 111 addition to the usual method of dissolving a company t)n Dofm., t eom. the winding up by an order of court, power has been given to ''*"'**• the registrar of joint-stock companies, after giving certain invseribed notices, to strike the names of defunct companies il the register (./'), and by so doing to dissolve them. But iiiiv company or member thereof who feels aggrieved by the mmie being struck ofi" may apply to the Court ; and the Court il satisfied that the company was at the time of the striking off anying on business, or that it is just so to do, may order the name of tiie company to be restored to the register (//), and tlieieupon the company shall be deemed to have continued in existence us if the name thereof had not been struck oft". Note on hnilding societia. (.SVe infra, p. 918.) Ill the di.stributiou of tlie surplus a-i.< a notice of their desire so to do. Wlieu the surplus assets of such a 1 wiety are not sutficient to p.iy to tlie unadvanced members the whole sum '.I which they arc entitled, ditliculties have arisen as to the terms on which ilv.mced members are entitled to redeem their mortgages, and as to the I ntmiier in which the assets are to be diviiled between tliose members who W given a notice of withdrawal, which has expired before the commence- I IB' lit of the winding up, and members who have given no such notice. llie lights of the members are to be determined in each ca.se by the con- [ to t into which they liave entered, and not by presumpticms or inferences • ■ Rule 67. '/)43 Vict. c. 19, §7. (y) See Outlay Amcrante Society, 34 Ch. D, 479. ifrf H?w^ 872 WINDING UP ny THE COURT. f-ff- Dk. IV. Cbap. 1. Sect. 13. Ponition of advanced and UQAdvancvd mem bent. Witlidrawiug mcmbent. m Preference nhueB ir buildini; Hooietieg. '«r from the law relating to coin])uiiicn of a difTerent kind »r td ooimnnii l,,» pni tncnhipH {h). In these Hocii-tieH there is no i leHuniption tlmt all ihr inemberH are lialile to co. tribute eiiualiy to tlie Iohhoh oI Iho sdiicty m th,ii in the abnence of anything in the rules us to the way in wliich su'h l.,>„., are to Ik- borne, advanced momberM are entitled, on the (:oiM|iaiiy ({oinL'in' liquidation, to re.i and unadvanced members (t). Membei-swho have given notice which has e.\i)ir(Ml before thr conniuii.- nient of the winding up, of their desire to withdraw the niDiiiis jtaiiilin; to their credit, either out of tie general funds of the society or out df i special fund, as the ca.'^e may be, are entitled to receive imyincnt il tl.r* monies Ixd'ore the other niembeni who have claim.s again.it the xime Ihdu. but who have given no such notice, receive anything, provided that m the true constnution of the rulcn the efl'ecl of the notice is to iiFiifeiiiiilir members who have given it, an unconditioiud right to receive these mine.', though the society may not be bound to pay them imnieiiiat(ly(Jl); but if the notice merely confers upon the members who give it a ri^lil to !<• j.,.l if there be a particular fiuul in existence and there i^ ikj suh tV: !, the members who have givcTi notice have no priority over tin otli; memlmrs (/). There is nothing in the acts relating to building societies or in tlieiiatm of the societies themselves to prevent the issue of preference «liiire.», an i :! such shares are i.7. {m) Guardian Building Soc., ^ )URT. it kind <'!■ tci oomimm l,i* J ix'suniption tliut all the loBHt'H of Ihii witii'ty M) iLi ,e way In which 8u:h l-i , on tht^ conniuiiy iimv^ n,: ni(!nt Hrfromtlnt f equally niion tlii! advaiuhi xi)in!tl before the conimi;ii c thilraw the niDuiuH stamliin ids of the society (iruiit.^u! I to receive' piiymciit nf tlr* linis again«t tlu' stime fuel', | imything, providul thai > s till! notico is to (iiuler "ir.hr ri^ht to rect-ivi' these ni'iiW I them initnfi(lui»iriU!-;;j ilepositors, to witli were entitled to priority over depositors who had given no notice, i-ut whether the depositors as a class wiTe entitled to priority over the iiolders of other shares. For the decision of this question it was im- material whether notice had or had not been given, for the winding up is eiiuivalent to the compulsory withdrawal of all members. See H App. t'a. p. 264. (h) l>imcristir IWrnmient Huilili'iij Society, 4 'E([. 671*. "^ i this case there was a rule to th's .Ml>ct, but il is evident from the nature of the society that the method of distribu- tion is the fair one. id 24 Ch. D. 4-21, ni'h <■ mm Benefit iUdUiiwj .Si-.i'!y;| tl Aid BuUdiwj >^»mhi:-^^A (2, affirmed 30 l.'h. U. m nee Suvi,tij, 28 Ch. D. 5511. I Mutml Sodetii, i^ Cii. D. ii5j explained in the casi^ J'l last note. It is not m^^m le majority of the s">^'} '■] the terms on which a m^^\ )wed to withdraw. .4i.: 1 m }rorking ^Woi's ^«''^'" ., 12 App. Ca. 1S»7. Guardian Building Soc., -7T-« — r—TTT^ 874 WINDING UP VOLUNTARILY AND SUBJECT TO SUPERVISION. CHAPTER II. OF WINDING UP VOLUNTARILY, AND SUBJECT TO THE SUPERVISIO.V OF THE COURT. Bk. IV. Chai). 2. Sect. 1. Inconveniences of compulsory winding up. Winding up voluntarily and subject to super vision. Differences between these and compulsory winding up. SECTION I.— DIFFERENCES BETWEEN THE VARIOUS METHODS OR WINDING UP. When a companj' is wound up by the Court, everything is (lone under the immediate superintendence of the chief cleik of the judge to whose court the winding up is attached, Tliis necessarily involves issuing summonses and obtaining appinnt- ments, and consequent delay and expense, even in matters routine. In addition to this, the power of adjourning even question before the judge is frequently exercised for the mere purpose of gaining time ; and every such adjournment, whether reasonable or not, increases the dolay and expense it winding up. To avoid these inconveniences as far as practicable, the . Companies act, 1862 (following in this respect the arts ul 1856 — 58) provides for two other methods of winding up, viz., 1st, purely voluntarily, that is, without the intervention of tht Court at all, and 2dly, voluntarily, but at the same time uiidtr •;iii order and subject to the supervision of the Cou't. The practical differences between these two methods on the ^ one hand, and winding up by the Court on the otlier, are, thiit when a company is wound up voluntarily, or subject to the j sujjervision of the Court, all the business is done by the liqui- dator, without consulting the judge or his chief clerk, who are j only ajjpoaled to on matters of difficulty or for the pm'pose of j exercising powers which the liquidator does not possess ii (a) See the judgment of V.-C. Wood, in the Inns of Court Hold ''pj W. N. 1866, 348. r TO SUPERVISION . WINDING UP VOLUNTARILY. 875 CT TO THE SUPKRVISIOS VARIOUS METHODS OF he Court, everything is ience of the chief clerk g up is attached. This 3 and obtaining apvoint- ense, even in matters of wer of adjourning ever} V exercised for the mere ery such adjournment, the delay and expense o( ! far as practicable, tk Jthis respect the ads oi [hods of winding up, viz., It the intervention of ik It at the same time mk \ In of the Couvt. iiese two methods on tk [rt on the other, are, tlwt, tarily, or subject to tl.« less is done by the liqui- his chief clerk, who are [ity or for the purpose of \ov does not possess viM \i},eInnsofCovrimd''- This at once saves much delay and expense. On the other ^^- ly- ^^ap. 2 hand, the 'iquidator being able to act without the direction of — - the judge or his cliief clerk, is more likely to take steps which have afterwards to be rectified, perhaps by litigation (b). More- over, notwithstanding the power of invoking the aid of the (.'omt, creditors and contributories complain that, practically, ilievhave not the same facilities for ascertaining what is being (hme by the liquidator under a voluntary winding up, or winding up subject to supervision, as they have when a company is wound up compulsorily. The theoretical difference between winding up voluntarily Difieioncu bo- and winding up subject to supervision appears to bo that the „p''vnUmtarl'iy first is supposed to be carried on without any aid from the ^°^' «"!*!««*■ t" ^ ' ... , supervision. Court, except when that aid is invoked for some special and I limited purpose ; whilst when a company is wound up subject i to supervision, the extent to which the winding up shall be [lanied on without consulting the judge or his chief clerk ipends upon the order which has been made (c). It is not [usual, however, to impose any restrictions, unless some necessity [for so doing is shown to exist (rf); and consequently the Ipractical difi'erence between the two methods of winding up Icousists mainlj', if not entirely, in the comparative facilities for loltaiuing the assistance of the Court, and in the compai'ative jwse with which the liquidator can be controlled, and exe- Icutions against the company be prevented. SECTION II.— OF WINDING UP VOLUNTARILY. All companies registered under the Companies act, 1862, ^°'"|'^'"',ff* nd also all companies which, though not so registered, have '";i"« "''^>""' . . , , , , ui) voluntiiril/. M registered under the acts of 1856—1858 (e), and also all niiustrial and provident societies registered under 25 & 26 \\i) See the observations of L. J. ner a.s to tliu expense of vo- utary liquidations in Naiiunal fnnys Bank Association, I Ch., 1 553. |!0 See § 147. (rf) See the form of order in sche- dule 3 to tlie rules, No. 4. (e) Torquay Bath Co., 32 Ikav. 581 ; London India Rubber (.'u., I Ch. 329. ■'ff''T i^pi mr 876 WINDING UP VOLXTNTARILY. Bk. IV. Chap. 2. Vict. c. 87, or under 89 A- 40 Vict. c. 45, and building societies under 37 & 38 Vict. c. 42 (/), maybe wound upvoluntariIv(/;), But no other company can(//). But althougli uniegistertd companies cannot be wound up voluntarilj' under the net, tliep is, thoretically, nothing to prevent the members of suoli coi panics, if unincorporated, from dissolving the partnership whic subsists between them, and from applying their joint assets discharging their joint liabilities, and dividing the surplu amongst themselves. It is seldom, however, that this can U done (i) ; for the successful carrying out of such a scheme is liable to be defeated not only by disagreement amongst \.k shareholders, but also by the importunity of creditors. Practi- cally, therefore, and excepting a few rare cases, unregisterM companies must be wound up by the Court. A company capable of being wound up voluntarily undn tlit act may be so wound up, — 1. When the time, if any, fixed by the articles for th'. dm'ation or dissolution of the company has expired or arriveii, and the members have passed a resolution requiring tie company to be wound up voluntarily (k). 2. When the members have passed a special resolutioa requiring the company to be so wound up (l). 8. When the members have passed an extraordinary it !:; tion to the effect that it has been proved to their satisfaciioii that the company cannot, by reason of its liabilities, contitm its business, and that it is advisable to wind it up (m). The resolution in this last case nuist be passed in the raaiinei required for a special resolution, but no confirmation of it : necessai'y (ii). The resolution must, in the second and third of the akv^ cases, be advertised in the Gazette (o). Circumstances under which a company may be wound up voluntarily. (/) § 32, sub-8. (4), and Sunder- land, etc., Building Socij., 21 Q. B. D. 34!). ((/) See §§ 129, 176, 177, and 196 of the Companies act, 1862 ; and, as to Industrial and Provident Bocietiesi, Appendix. (k) § 200, ol. 2. (i) See as to Friendly societies, 38 & 39 Vict. c. 60, §25, Aitui registration of such societies uii tlie Companies acts, see ib. ^ 24. {k) §§129 and 130. (0 § 129. (m) Ib. (?i) Ib. and § 51. (o) § 132. RESOLUTION TO WIND UP. 877 nd and third of the abol With respect to extraordinary resolutions, the following case ^^- ^^'- <^hap. 2. i. important : — In the case of the Bridport Old Brewery Com- — ii.iHi/(i>) notice was given that an extraordinary meeting would resolution" ^ be hehl to consider, and, if so determined, to pass a resolution Bridport Old 1 1 •! r¥ii • ■. Brewery Com- t,i wind up the company voluntaiuly. 1 lie meetuig passed a pany. rtsolution that it had been proved that the company could not, liv reason of its liabilities, continue its business, and that it was advisable to wind up the company. Tliis resolution was j never confirmed, and could not, therefore, be supported as I a special resolution. It was held that it could not be sup- (irted as an extraordinary resolution, inasmuch as the notice I was so framed as to lead to the supposition that a special rejohition, requiring confirmation, was to be proposed, and did [not sufficiently disclose an intention to proceed by way of extra- I ordiiiaT)' resolution. A notice, however, may be good in part and bad in part ; I and if it is good so far as it relates to the passing of a rc- hiJution to wind up, a resolution to that effect may be valid, although the rest of the notice may relate to some proposed Iresukition which is ultra vires, and such resolution may also be I passed ((/). The efiect of a valid resolution to wind up voluntarily, when Kffcct of resolu- I a (ompulsory winding-up order is sought to be obtained, has Ibecn considered already (r). It is only necessary here to add [that, although a company may be in course of winding up Ivuluntarily, any creditor who can satisfy the Court that his |ri|.'hts are prejudiced, is entitled to have the company wound jiip by the Court (s) ; but the Court may adopt all or any il the proceedings taken in the course of the voluntary l«"iiiding up (/). Tlie time at which the winding up is deemed to commenc ^ Commcncemeut of winding up. if 2 Ch. 191. See, also, Silk- '•h'- Fall Collimj Co., 1 Cli. D. 38 ; |iVi(iwi(i; Savings Bank Assoc, 1 Cli. . oiS ; Inns of Court Co., W. N. |l5t», 348. i?) Cleve V. Financial Corporation, p ^. 363 ; atone v. Cit^j and pKii/i/ Rank, 3 C. P. D. 282, at Ip. 307 and 313. (r) Ante, pp. 636, 640. In the ca.se of the Bridi>ort Uld Brewery Co., supra, the Court made a compulsory order on the petition of a creditor. See, further, in/ra, p. 886. {s) § 145. As to the ri<^ht of con- tributories in this respect, see Gold Co., 11 Ch. D. 701, and ante, p. 640. (0 § 146. P^PI' 878 WINDING UP VOLUNTARILY. my. ^■hI Bk. IV. Chap. 2. is the time at which the resolution to wind up is passed («i ; '— — and this, when the resolution is special, means when the second resolution confirming the first is passed (a;). After the com- mencement of the winding up the company must cease i, carry on business, except for the purpose of winding up its affairs (?/). The onus of proving that a contract entered intu by a company, which is being wound up voluntarily, is not required for the pui-poses of the winding up, lies on tlie paitv disputing the validity of the contract (z). The company retains its corporate character until its affair^ are wound up, and it has been actually dissolved, as mentioned below (a). After the i)i\ssing of the resolution to wind up, no shares can be lawfully transferred, except to or with the sanction of the liquidators (b) ; nor can the property of the company be dealt with without their sanction (c). The first thing to be done after a resolution to wind up is passed is to appoint one or more liquidators, for tlie piupnst? of carrj'ing the resolution into effect {(I). The appnintraeiit lies with the members (c) ; but they are empowered to dekgatt the appointment to the creditors of the company, or to a coin- mittee of them (f). If there is no liquidator, the Court mav appoint one or more, on the application of a contributory '/l The Court, moreover, may, on due cause shown, remove aiiv liquidator and appoint another (h) : and it is not essential to i Liquidators. (m) § 130. For the effect of a subsequent order for a compulsory winding; up, sec Taurine Co., 25 Ch. D. 118 ; Thmnas v. Patent Lionite Co., 17 Ch. D. 250. See mite, p. 664. (x) Emperor Life Aitsurance Co., 31 Ch. D. 78, and ante, p. 664 ; Dawe^ case, 6 Eq. 232 ; Ex parte Colborne and ' Straxohridtje, \ 1 Eq. 478 ; Weston's case, 4 Ch. 20. (2/) § 131. {z) Hire Purchase Co. v. Richens, 20 Q. B. D. 387. (a) lb. and § 143. (6) § 131. See aide, pp. 832 et seq. (c) See §§ 131, 133, and ante, p. 666. (rf) § 133, cl. 2, 4, 6. A lifJi- 1 dator cannot be appointed aiq: I when there is a valid ivsolutioii to wind up. Indian Zoe.doM do., % Ch. D. 70. (e) § 133, cl. 3, and § 140. (/) § 135. {g) § 141. iji) lb. /S'ii- John Moon fr'i| Mining Co., 12 Ch. D. 325 ; KritA Nation Life Ass. AsitO'-., 14 Eii. 4:':!: Marseilles Extension, etc., Co.. 4 Ki, 692. And see Ex parte Charhion- . 36 Ch. D. 299 ; and anU, [i. ''» | Ex parte Pulbrook, 2 Dc G. J. i ^ j 349. ind up is passed (m: eans when the second (ic). After the com- ipany must cease u ose of winding up its contract entered int" ip voluntarily, is in.t ; up, lies on the party iracter until its affair- lissolved, as mentioned solution to wind up, no xcept to or with the m the property of tlie iction(c). ^solution to wind up is idators, for the purpose d). The appointment : empowered to delegate I company, or to a ooni- uidator, the Court may n of a contributory (:i). use shown, remove any | it is not essential to 133, cl. 2, 4, 6. A li'i'i;- aiiiiot be appointed esci-pt here is a valid resolution to Indicui Zodmu 0', Jiij 70. 133, cl. 3, and § 140. 135. 141. ,, , Sir John Moon W Co.,12Ch. l).325;i;na| Life Ass. Assoc, U^-^^-'' les Extension, n also, hy givins I J,,if . calls maile I'V A* , |8'b..ove the commoncdutiit ] 1 winding up, aitliou^hE", U the call had been given ,; Stone y. City and CouM C P D. 282. AstooideR payment of calls, see ant(, I Court might exercise if the company were being wound vip Uk- iv. Clmi.. 2. byit((/). ~ 5. To summon general meetings of the company (»,■). The liquidators are also empowered, with the sanction of iui extraordinary resolution of the company, to make arrange- ments with creditors and contribntories, and to compromise all claims by or against the company (,/"); and with the sanction of ii special resolution to sell the business of the company, in ciinsideration of shares, policies or other like interests, for the I purpose of distribution amongst the members {(j). I.iistly, the liquidators ai'e empowered, with the sanction of I the Court, to prosecute delinquent directors, managers, officers, I or members of the company (/(). Where tliere are more liquidators than one, the powers given ^^here there are '■ 'ID mure than uiio. I to them by tlie act may be exercised bj' such one or more of Itheni as may be determined at the time of their appointment, lir, in defanlt of such determination, by any number not loss Itluui two (()• There is no necessity, however, to appoint more Itliau one (A). Where, however, there are more than one, and lone is not empowered by the company to act for all, the lliiiuidators cannot themselves delegate their powers to one of hlieir own body ; and if they do, his acts will not bind the [foiiipany (/). Moreover, if several liquidators are appointed Jie survivor cannot act alone (»()• The exercise by the liquidators of the foregoing powers i^^ n"Jj|ib"i,rs;iiicl kubject to be controlled by the company and its creditors ; for creditors over ' . ^ i ./ ^ liquidators. k company is empowered by an extraordinarv resolution to ■' § 13S, and rule 51. This en- h tlie Court to do in a voluntary imliiij; up whatever it can do in I compulsory winding up. See Y':'s case, () Cli. 104 ; Unwn lilt of Kimj:iton upon Hull, 13 f. D. 8ii8 ; Heirnn's cam; 15 (Jli. D. 8; Odd Co., 12 Cli. D. 77. ) 5 139. [(.') §§ 159 and 160. See ante, p. ' as to compi'onnse.s, and IFalj- i Co«! and Iron Co., 6 Ch. D. 627. jt«) 5 161. See infra, as to thi.s. U, (/i) § 168. To obtain this sanc- tion a petition must he presented. See rule 51. (0 § 133, cl. 6. (A-) § 133, cl. 4. (l) See the ne.\t note and Ex parte iJinninijham Banl; 3 Ch. 651 ; I'o- loijnesi's case, 5 ib. 567 ; J'Jx parte Agra and Masttrman's Bank, 6 ib. 206, where bills were accepted by one out of four. (/») Mdropolitan Bank v. Jo»fo', 2 Ch. D. 366. 3 L 882 WINDING rP VOLUNTARILY. Sale of ftsscts Bk. IV. Chap. '2. enter into any arrangement, with tlirce-fourtlis in number an value of its creditors, witli respect to the powers to be exoiri).i by the liquidators, and the manner in which they are to \r exercised (n). ^Moreover, any arrangement so made is bindin; as well on the contributories as on the creditors, if not appealed against within three weeks from the date of its completion (ki, Moreover, any contributory may apply to the ( 'ourt to deter- mine any question arising in the winding up {j>), or to sta\ tlii winding up and all proceedings therein (q) ; and miy trcilitur can apjily for a compulsor}' order to wind up under § 14o, m any time before the company is dissolved (?•). With respect to the sale of the assets of the companv, tlie liquidators apparently have power to sell them for money as best they can ; at the same time, if any particular sale is opposed by any of the creditors or contributories, it may lie prudent to apply to the Court to sanction it (.s). One of the most important powers of the liquidators under a voluntary winding up is that of selling the business and gooil- will of the company being wound up to another company, in consideration of shares, policies, or other like interests in tli' purchasing company. This power is conferred by §S I'il and 1G2 of the Companies act, 1862 {t), from which it be seen — 1. That the power can only be exercised under the authoiitij of a special resolution of the company (u) being wound up ; Transfer of Imsi- nesx to ;inotln'r coiuiJany. (n) §§ 135 and 136. (o) § 137. The appeal may be by petition or motion. See rule 51. (^)) § 138, 1)y motion or petition, see rule 51. See, for examples, Anglesea Collierij Co., 2 Eq. 380; Croolcliaven Mining Go., 3 Eq. 69. (7) Schanschiiff Electric liatterij Syndicate, W. N. 1888, 165 ; and see South Barrule Slate Quarry Co., 8 Eq. 688. (r) See § 143. London and Cale- donian Marine Insurance Co., 11 Ch. I). 140 ; J'into Silver Mining Co., 8 Ch. D. 273. (s) This was done in tlie ^idii d-c, Hank Corporatiim, W. X. ISfiJ 41, and the a^'reenient for sale wii eontirmed. As to compelling tbi liquidators to accept tlie best of ra oli'ers, see The Colonvd anJ (loidnt Co., ib. 4-2, where, huwever, thj conqjany was being wuuud up siil) ject to supervision. (0 See also 31 & 32 Via. c.l which, however, only ajiiiliei companies being wuiniJ up wk'^ the act passed. («) Qu. members or contrhj tories ? ILY. "ourtlis in number anl powers to bo exaxm 1 which they are tn Ir ent so made is bimlini' •editors, if nut ni)peny ,e of its completion (oi. to the ("ouvt to detiT- ig up {p), or to staytW m (q) ; and any creditor vind up under § 145, at ed (r). ets t)f the comprtny, the ] sell them for inoru'V us j f any particular sale is] jontributories, it may lie ;ion it (s). )f the liquidators linden I ft the husincss niul »m\- to another o()mi)iiiiy, ml ither like interests in the is conferred by §§ l''d| , (0, from wbieli it ^*i' ^ised under the aiitboiitjj (d) being wound up ; This was done in tlie .•^ci«l lank Corporation, W. N. ISKJ ul the af^reement iov dn4 •med. As to coii.pelliug t^j latorstoaccei.ttheWstofti see The Colonial anil C,a.SA .b. 42, where, liuwever, ttf any was beiut; wouud iiFi:b| ) supui'visiou. See also 31 &32VHt.c.6 ,,, however, oidy m^''\ anies bein^' wouikI up «H ct passed. , Qu. uierubers or contnl)i| ? LIQUIDATORS. 883 •) Tlmt if so sanctioned, tlie transfer can be made notwith- ^''^- '^'- *''''>P- -■ I .tiudiufj tlio oi)position of the minority (r) ; — i Tlmt any dissentient can require tlie liquidators, at their I option, to abstain from carrying the resolution into ett'cct, or to purchase the interest of the dissentient (//) ; I, That this re, Iji 128—134 (a). The decisions on tlu se sections and the mode of winding up inl reconstructing companies under them will be noticed in [tknext Chapter {infra, p. 891). A purely voluntary winding up does not, j)cr sc, prevent a Staying actions Creditor of the company from suing it, or issuing execution ' Uiiiht it ; it is not, therefore, in any case necessary for liiu to ai)ply for leave so to do (h). But as already stated, : may be restrained as well from issuing execution as from |min a irum peri'orining its contracts ; and if this is the case, the tract. Muipauy may be sued for a breach of them ( | under a compulsory winding up {<>). The liquidators, \m-- ever, have no power to enforce payment without jiuliciul assist- ance. The methods of enforcing payment are eitlier bv an j action in the name of the company ( p) ; or, if the coiitributiiy is already settled on the list, by an application to tlie Chan- cery Division of the High Court to order payment under the j Call:-. (/) See ante, pp. 713 e< seri. (y) See § 107. (h) See §§ 38 ami 101, and iufra, note ()•). (i) § 133, cl. 8. As to giviny notice of settling tlie list, see the London Bank of Scvtland, W. N. 1867, 114 ; Bri(jhtoti Arcade Co. v. Doidimj, L. R. 3 C. P. pp. ITS, 184. (A) Conqjare § 133, cl. 8, with §§ 38, 95, and 98 ; and see Gilbert's case, y C'h. 559 ; Brighton Arcade Co. v. DowlUig, ubi sup. (!) See § 131. (m) Sue ante, i)p. 831— Sii". («) § 133, d. 7. (o) Compare § 133, cl. 7, with i| 202. See ante, p. 84!). (^;) See, ior instance, IkiiiM Arcculo Co. V. DorcUnij, L. K. 3C. F] 175, which shows that no notia"< being on the list of contributuriei ;• necessary ; General IHscount C'i.v.| Stolces, 17 C. B. N. S. 7G3; //• Flux Co. V. JFclleiley, C H. & N. 3J;| ^4i' LY. niSSOI,UTION OP COMPANY. HS") J of tlie comiiftiiy m-.' I be piviil under a com- ;• to exc'hulo creditois icli timo must appar- )f such time not btiiiii rtlone can ilo (;/). TIm' ; a compulsory wiiulini! winding up are th.- 1 a compulsory wimliu^ leiicement. I'hf li<|iii- all the powers of iIk ther luulor these wuiili the register of uuMiikij idutors, however, hv i and alterations in lli' niencement of the wini- regard ought to be M )urt in like eases [m]. ed to imdk- lymeut are either by ;ra 1) ; or, if the coutributMn pplication to the Chan- 1 order payment under ilie I iee § 1:31. Sue ante, pp. 831-8-.!r. |§ 133, el. 7. Icurapare § 133, cl. 7, wth \ 1 See a(i-^ , 17 C. B. N. S. 'C5;_H^' iMwvrs conferred upon it by the Companies act, 186'2 (q). In '">• !}'• <'i"ii>. •.'. the event of death or bankruptcy payment can be obtained - - — wholly or in i)art, as the case may be, by administering the (Me of the deceased, or by proof against the bankrupt's t-tate. riio same rules as to set-otl" against calls apply when ;inimpanyis being wound up voluntarily as when it is being uoiiml up compulsorily (;•)• I'lie costs of winding up are payable <-<.it of the assets of the ''osts. I. 'iiipany in priority to all other cla'n) , (h) ; and the costs of the liquidators incurred in proscating delinquent directors, >\^, are entitled to like priority (t). Ill (listrihuting the suri)lus assets care must be taken to put f^uqitn* i»«et*. tht (ontributories as far as practicable on an ('(juality, regard being Had to the amounts paid up on their respective «haros(H). A oompanv which has been wound up voluntarily is dis- Dissolution of ' couipaiiy. I >nlve(l at the end of three months from the date of the regis- tration of the I'eturn which the liquidators are required to make as before mentioned (r). After the liquidator has made his return the Court has suflicient jurisdiction to make calls 111 the eontributories for the paynjent of the debts of the I company or the adjustment of the rights of the eontributories, in/(T8c, if an application be made before the three months have expired ((■). After the expiration of the three months Ithu Court has no jurisdiction to make any order unless the dissolution of the company was obtained by fraud (/y). A li'inpauy, moreover, will be restrained from dissolving without |i'iiii((( {((((' Moscky Gold Milling Co. |v,Si(((««, 3 15. &Sni. 321. (]) Ste § 138. i»'((((e*'.s a(s*,6 (Jh. 1"4. Uriijhton Airade Co. v. J)ow- |iii;j, L, R. 3 C. P. 17 r}, is opposed to Itliis ; but tliis case is now overruled I'v Black . 852 and 869. (••) § 143. (.e) See Crookhaven Mininy Co., 3 Eij. 69. (1/) Pinto Silver Minimj Co.,^ Ch. D. 273 ; London and Caledonian Marine Ins. Co., 11 Ch. D. 140, wliere the Court refused to make an order for the compulsory winding up of the company. See, also, JFestbourne Urove Draim-y Co., W. X. 1878, 195. iF^ 886 WINI>!N. SKOTIOX III. -OP WINDING VP SURJRCT To THR SITKUVIiSInv OK THK COURT. I Aftpr n rosohition has l>oen pnssod for wiiidiiif; tip n p,,;,;. piiny vohintnrily, the Court mny make an order diip(tin;;tli;it tho vohnitary windin}.' uj) shall continnc, hut subject to siidi Hupcrvisioii of the Court and with such liberty I'ur croditois, c'ontributorios, or others lo apply to tho Court, and geiiernUv upon such terms and subject to such conditions as the Court I thinks just ('«)• The application for .such an order is made by ii [lotitiuiii'. wliiib must be advertised, verified, and served us requiivd in i tho case of a petition for winding' up Ity the Coiiitli). |i| must also be served on the li(|uidators if there arc iiiiy (il\. In determining what ought to be done upon siuli u petitiiii. the Court may consult the wishes of tin; creditors ami omi- tributories, and maj' summon meetings for the purpose ascertaining their wishes {<'). The circumstances which influence tlie Court in (U tcniiiniDfl what order to make on petitions to wind up have been iilieaJv noticed (./") ; and in addition to what has there l)een stated itj is only necessary to observe that the Court is n luctaut toj interfere with a voluntary winding up, and will not nt tliel instance of a contributory convert a voluntary winding up intoj (:.) See Ilnijhr Gninitc Co., 1 (Jli. 77, a claim for rent, whore the coni- pany being lessee had a.s.sigued ; anuiuivision ; for such an order presupposes, and, in fact, inititiurs a pre-e\istin<^ voluntary windinj^ up. Where, there- tiiv, tlien' is no such winding up, all that the Court eiui do is tmiiikc a conipulsorv order (i), or to dismiss the petition, or to iillow it to stantl over in order to give the shareholders an nliportunity of passing a resolution to wind up voluntarily (A ). Wlicii', however, the Court is satisfied that a proper resolutiiui tiwiiul up hns been passed, it will make an order to continue ilu winding up subject to supervision in preference to a com- I'liUory order, unless a compulsory order is desired by a iiiiijdrity of creditors or there is some other good reason for linking it. X strong illustration of this is afforded by the case of the Londm mi. I l.:>nihiii iiitiJ McditcvrauPdH Ihailc (I). That bank had been '({rti'ik.*^ iiiiial^iiiiiiited with the London ami Bomlxii/ Bunlc. A reso- lution to wind up the Tiimdon and ^lediterranean Hank volun- tiiiily WHS passed, and li(piidators were appointed ; a petition fiinni order to continue this winding up under the supervision "i the Court, and to continue the voluntary liquidators, was ifterwards presented by a contributory, ane, also. Put' nt Flunr Cloth Va., H I'viiiioner oven if lu.s petition ask^ Va[, ()G4, where an order for winding; W\t,Cltip.. oOlJ. ihai'Hed, and a compul.-^ory order /i, See Impnial Jlmik of (Jhinn, made. A.s to buildinf; societie?, ■K, 1 Ch. .3.39 ; JkanjolaU Winn Co., see 37 & 38 Vict. c. 42, § 32 (4). •> til. 1"). As to applications by (A-) See the cases collected, a)i^', iKdilors, see infra, notes (/) to ( j>)- pp. ()44 et seq. ;i) As in the case of the P.iidport (/) W. N. 181)0, 207 and 317. I'M llrmnn I'n. 2 Ch. 1!)1, noticed 888 WINDING UP SUBJECT TO SUPERVISION'. Bk. ly. Chap. 2. J3ank was pending ; and that petition disclosed facts teiulin" Sect. 3. ^ to show that the continuance of the vohmtary winding Iv tL^ voluntary liquidatoi's was not for tlie interests of tlie oontiibu. tories. The Court, nevertlu'less, made the order for coiitimiiu^' the voluntary winding up, subject to suj^ervision (/«)• < *ii a subst- quent occasion another petition was presented by two credits and a contributor}' in the Tiondon and Mediterranean Bank, praying for a compulsory winding-up order, on the ground tlmt the voluntary winding up was not being conducted piopeih, The petition was supported by other creditors ; but the Cuuit nevertheless, dismissed the petition (//), on the gi'uund that compulsory winding-up order would not be more advantagecih to tlie creditors, or contributories, than the order wlikh alital existed ; and that if sufficient grounds were shown, tlie liquidators could be removed as easily under one order as tli. other. In this case it was objected that a compulsory order co not be made until the former order for winding u]), sulijcct f supervision, had been discharged on a rehearing or on aiipml but this objection was overruled (")• Instances have iil> Occurred in which proceedings, under a compulsory windingii order, have been stayed, and an order to wind uj), s'lttject to supervision, has been substituted for it(jO' Where this ij done, care ought to be taken not to disturb the date of tLe commencement of the winding up (q). The genei'al effect of an order to wind up, subject to siipti- vision, is to continue the voluntary winding up with siil restrictions, if any, as the Court may impose (r). The pre- sentation of the petition gives the Court the same jurisdiitioB over actions as a jietition for winding uj) compulsorily {■■), has the same effect as such a petition on fraudulent coiivtv- Conflicting winding-uii orders. Effect of order to wind lip subject to mipcr\'ision. (m) W. N. 1866, 207. («) W. N. 1866,317. (o) W. N. 1866, 317. (/)) This was done hy Lord Ro- milly, M. K., in the case of tlie (•eneral Ejccluiiujc Hank, May, 1867. The application .vas made by suni- 886, note (/)). {(j) See, as to tl.i-, (■ntc, y. Wil (r) § 147, and see the i'iumollli( order Nd. 4, in tlie '.iv:\ sdieiluk;- the rule.s. J.undon Qwiij-i, dtc, ' Ch. 394. (,s) Si'e J§ 148 and 85, (/«'■, mons, not by petition. See and', \>. 672. I'KRVISION. WINOINti IIP SUBJECT TO SUrEnVISION. 889 Usclosed I'licts tending Luntary winding by tU terests of the contiiUi- the order for contiuuin!; fvision(»i)- Oiiasubst- isented by twu creditnis d Mediterranean Baiil •der, on the ground tiim ng conducted properlv. reditors ; but the Couit, ), on the g'-uund that a at be more advantageous 1 the order which akeailv ands ^Yere shown, \V ' under one order as tin compulsory order coiiU 3r winding uj), suhjuct to 1 rehearing or on apptal: ). Instances liave ulv' a compulsory winding-ni) I n- to wind uj), suojwttoj r it(i)). ^Vhere tliis is disturb the date of t'ue I lind up, subject to super-] [v winding up witli sikI ly impose ()'). The pic lurt the samejurisdictiM'.] up compulsorily (■>, 'd [ion on fraudulent coiivty- liote (/>). ■ Sec, as to tV.:-^, '."'f, !'• Hf'^ § 147, anaseetlietmuioll!i<| ko. 4, ill the 3vil schedukij kilei*. London QiK'p^^^'i*- |U4. Isee iJ^ 148 and 85, «"S !' (iiices by the company of its assets (/). Moreover, speaking ^^^- 1^'- <'iiai>- -• ceuerally, (vn order to wind up, subject to supervision, appears '-— to be equivalent to an order to wind up compulsorily, except that the liquidators can, unless restricted by the Court, exercise, without its sanction, all the pow'ers of liquidators noting in a winding up which is purely voluntary' (»). The liquidators should, however, apply to tl^e Court for it^ sanction before doing anything of unusual importance, or which is iipposed on grounds not obviously unreasonable. They have piiwer to sell the assets of the company under § 161, if such sale is authori.^ed by a special resolution {x). When 1. company is ordered to be woimd up, subject to Commeiioemcnt . of tlic w iiidiiij,' supervision, the commencement of the winding up dates from ui,. the passing of the resolution on whicli it is founded (i/) ; i.e., where there is a special resolution, from tlie passing of the con- tirming resolution {z). 'Jliis is so even where, as frequently L.ppeus, the petiton on which the order is made precedes the ivsolution (a) : so where a provisional liquidator has been nppointed upon an earlier petition for a compu^jory order (/;). If an order is made for winding up, subject to the super- Li'i"iilatois virion of the Court, the Court may appoint one or more liqui- (liitors, in addition to or in the absence of any previously [appointed ((•). The additional liquidators have the same ivers, Hre subject to the same obligations, and stand in the [same position as if they had been appointed by the com- fauv((/). This power of appointing additional liquidators is h'liuetimes exercised for the protection of creditors (c). An appointment of an additional liquidator chosen by thi> creditors, practically secures to them the same protection as the appoint- ■') f 1()4. See ante, p. 667. ^«) li \U\. WriqMs case, 5 Ch. r,. (■') Imp. Mm: Cmlil Annoc, 12 E'l. 504, and see ante, p. 882, luul I'/w, p. 849. in) See § 130. ■) Emptror Life Ass. Society, 31 M. D, 78 ; Ex parte Colborne and ft"«:Hhje, 11 E(i. 478 ; JVeston's »<'•. 4 Ch. 20 ; Daives' case, 6 Eq. 832. ((() J/Vs^'m's case, 4 C'li. 20, see further, ante, p. {)64. (/)) Emperor Life Ass. Socictij, itbi sHjiva. (c) § loO. See London (Juaijs Co., 3 Ch. 394. (fO § 150. (f) See an instance iuider the acts of 1856-58. Llanfyrnach Silva- Lead Mininij Co., 9 W. R. .500. ... m IIJI 890 MINDING UP SUBJECT TO SUPERVISION. 15k. IV. Chap. 2. ment of an official liquidator under an order to wiiul iqi — ^ ■ - compulsorily ; and by appointing such additional liquidat nr the necessity of making a compulsory winding-up order is ii,. quently obviated. Not only can the Court appoint iuUlitioiui liquidators to act with those appointed by the contributorics, but it can also remove any liquidator whom they lum appointed (,/). This power, however, can only be exeni>tii on due cause shown ; but to induce the Court to exeidsf it, misconduct on the part of the liquidators need nut It proved (r/). If an order for winding up, subject to the supervision ut tlit Court, is supei'seded by an order i'ov winding up by tlie Cuuit. the old liquidators, or any of them, may be appointed oftkial liquidators, either with or without other persons, and citlier provisionally or permanently (/(). An order for winding up, subject to supervision, niiiv be stayed in a proper case to enable the company to lesitiH-^ business (<)• (/) §§ 141 and 150, and next (/i) § 152. note. (i) South Bdi-ndc Shiti' C'y,, >- tj. (g) Ex jxtrte L'harlcMCorth, 36 Cli. (j88, where one coutvibiitoiy I- \). i299 ; Marseilles Extension, ct'c, senting was put to liis electi" L'li., 4 E \n* electi"ii ;■; on payment of the valu- ij lare. Ai.TiiouGii the word ainalgamation is frequently used in ijk. IV. Chap. 3 (•(mui'ction v\-itli companies it does not seem to have iiciiuired Mcanin'; of tlio ;inv technical or well defined meaning (?^). Ft is perhaps |[|"j^j'''''''*^' fienerall}' understood to express or imply a transfer hy one or more companies of theiv assets and liahilities either to a new company formed to take them, or to an already existing coni- panv, in consideration of shares in such company, wliicli are given or are at least offered to the niemhers of the trans- lerriug companies. A power to amalgamate would proljably be held to authorise :i imrchase of the assets and liabilities of another companj' {>■) ; or a transfer of assets and liabilities in consideration oi shares in a company to which such assets are transferred (*/). But it iloes not enable directors to compel their sharehulders to lietorae members in a new company with wider objects, whereby tlii'ir liability may bo increased, and probably not in any new company (f). How far, apart from stntute, comi)anies have or have not Po«(i- to .iMi.d- powers enabling them to amalgamate depends upon the terms ii"cl"tiv°,f"stiitii'te. i their charters, articles, or deeds of settlement {f). Unless i these contain distinct provisions for the purpose such powers I do not exist (//). A company incorporated by charter or la) Part.- ul this chapter will he ll"Un(l in otliur portions of the work : pHititlias l)ui;n thought convenient t. bring tlu^ whole .«uhject 1i),L;ethov pin at thu expense of sonic rejieti- [tion, (h) Hhjip mac, 2 H. & M. 606 ; H-parfe Hdrjshau; 4 Eij^. 347. See, ji to the meaning in the Railway |tuii!ses act, 26 & 27 Vict. c. 92, § 37. ') Era As»urance Hoc, I De (i. .1. & Sm. 2!); I'lilhroolc v. .V "■ Cicil Serviir ('ii-ojicnition, 26 W. 11, 11. {(1) Ihiiiiidii'a nisf, S Cli. 54.J. (c) See cas(;s in note (/<) abo\e, and Cliiii-li V. Financial Vor}ioratwii, t^ E([. 4.')0 ; linperial llttnk nf ('hin'i V. Ihiiilc iif HiiidusUdi, 6 lv|. Ul. (/) See inite, pp. 18.3 and 2U7. {(j) Ernest v. iViWi-Z/s, (i II. L. C. 401, and cases below, note (k). mFfmrnm II ifi* 892 AMALGAMATION AND RECONSTRUCTION. i tk. IV. C linii. 3. special act of Parliament cannot delegate its powers (/(), and cannot therefore transfer its business, even for a time, t" another company ()) ; nor can the majority of the shaioholdeis of any comjiany bind the minority by an agreement to tiansl..r its property and business (k), or to purchase the assets and liabilities of another company (/). Whence it follows that two companies cannot amalgamate with cacli other, unless such a transaction is authorised by the constitutions of LotL companies (>«). Where there is power to amalgamate the tonus of the power must be observed («)• Thus a power to iuualgamattr with another company' having the same objects will not autho- rise an amalgamation with a company with wider or ditiVient objects {(>) ; and a power to amalgamate with the sanction of an extraordinary meeting will not enable an amalgamatiot to be effected without such sanction, although the amalganm- tion may have been acted on (j)). A power to sell and dl- pose of a business will not authorise a sale in consideration u! sliares in another company (q) ; nor will general powers ut management be sufficient for the purpose (/). But ^luh powers need not necessarily be conferred b}' the original con- stitution of the company ; if there is power to alter and amend {h) Great Xortlicrn liuil. Co. v. Juistern Cmruties h'liil. Co., 9 Ha. (/) Hattrrdcij v. Shelbimu; 10 W. H. 881 ; 31 L. J. Ch. 873 ; Charlton V. Xiwca.stlf and CarUale Eail. Co., 5 Jiir. N. S. 1096 ; IFinch v. llirken- htad, ttr., /i'(((7. Co., 5 l)e G. & S. .562 ; Beviun v. liiiffiml, 1 Shn. N. S. 550 ; Salomons v. Laimj, 12 ]5eav. 377. Compare Clmj v. llnfford, 5 l)e G. & S. 768. (/.) Erned \. Mdwlh, 6 H. L. C. 401 ; Era Assurance Hoc, 2 J. & H. 400 ; 1 H. & U. 672 ; Kearns v. /,(,(/, 1 H. & M. 681. (0 lb. (m) lb. ; and see European Hoc, 8 Ch. D. 679. in) Clay v. Rufford, 6 De G. & Sni. 768 ; Ernest v, Nichvlh, li L. C 401. As to till' coiistmctia j of such powers, see Stacc tt U'urtl'il case, 4 Ch. 682 ; Hank vf HwhiM V. Alison, L. R. 6 C. P. 54, anl !) Ch. 1. (o) Clinch V. Financial C"m:-<- tion, L Et[. 450. (j)) Stace and TFocf/i '»■<■((*■, 4 1'l. (J82. (q) IJougan's case, 8 Ch. 5J.'J. (r) Ernest v. Nicholls,^ H. Lt 401 ; Era Assurance Svc, 2 J. i] H. 400 ; Saj:on Life Assur. ^■■ ib. 408, and 1 De G. J. & Sm.i'ii (rilhert v. Cooper, 10 Jiir. 5*: Beman v. Kufford, 1 Sim. N. >j 550 ; Clay v. Rufford, 5 \h G, .v >j 768. AMALGAMATION AND RECONSTEUCTION. 893 RUCTION. e its powers (/(), aiul even for u time, tn ;y of the sliavelioldevs agreemeiit to trausk ■chase the assets and hence it follows that th each other, unk-s constitutions of botli ,ate the terms of the power to iimalgaraate ! objects will not authu- with wider or diftlvtiit late with the sanction niable an anuilp\mati.* ilthough the anialgaiua- V power to sell and di>- I sale in consideration oi will general \w\sm ot purpose (/•)• ^^"t ""^■'' L-ed by the original con- ,ower to alter and ameml 58 ; Ernest v. Nicholk •' 'l' [0\. A^ to the coiistniclB] 1 powers, see Stao: .1 HV')' Ch. 682 ; n'5'rticoii Life Amr. > I Vandl DeC..J.&Sm.i^ ' 10 Jur. .H'T the constitution of the company they may be subsequently Bk. IV. chap. 3. ncquired (.s). Whetlier, where no powers of amalgamation are given by Power of thi regulations of a company and no means of acquiring them "'*J'"' -^• lire provided by such regulations, they can be conferred by 11 meeting of shareholders, has been much discussed. Amal- gamation with another company must involve a complete chani'e in, if not a destruction of, one at least of the companies iiitfiuling to amalgamate ; and even if such a transaction is one wliich could be etiected by a unanimous agreement ui)ou the i»art of the members, it is difficult to hold that it is one as to which the majority ought to be able to bind the minority (O- But even a unanimous agreement of the members of a company to amalgamate with another company, unless per- mitted by the terms of its regulations, would be inetiectual except in the case of those companies which are in fact mere partnerships. Such bodies may alter or vary the agreements into which they have entered (jO« But with respect to com- panies which are created by a special act of Parliament, by iharter, by letters patent, or by registration, the case is very liitfcrent : for every company so established is governed by a law defining its objects and limiting its powers, and such law laimot be aljrogated by any agreement between the members of the company, however unanimous they may be (x). Practically, however, amalgamation under a company's regu- Araalgamution Ikious is rarely attempted, recourse being usually had to one ""' "^"^ ^ ' " "'^ [or other of the following statutory methods : — 1. Application may be mad" to Parliament for a special act enable companies to amalgamate (y). This, however, is bt often done now excei)t in cases of companies formed by fpecial acts. 2, An unudgamation maj' often be in effect carried out by V. Loojier, power. N. |( v. Ihiffortl, 1 i5m> ) Argm Life Amu: Soc, 3!) Ch. 1.571 ; Doman's ea.se, 3 Ch. D. 21. 1(1) Baiutn V. llnfford, 1 Sim. N. U.'iO; ami see i'lU'ther as to the Ptrsof majorities ante, pp. 314 et (u) Keene's Executors' case, 3 De G. M. & a. 272. (x) See, as to tliis, ante, pp. 314 et seq. ((/) See ante, pp. 1.S6, 323, as to the right to apply to ParJiuiueut. "S"' " 894 AMALGAMATION AND UECONSTHUCTION. ]?k. IV. Ch ap. 3. ,^,j arrangement or compromise under the provisions of tlif Joint Stock Companies arrangement act, 1870 (s). 3. But by far the most usual method of proceeding is under sections IGl and 162 of the Companies act, 1862 (//). TIksm sections apply to all companies which can register uiukr the act. A coni2)any not already registered may register I'ui' the express purpose of winding up and selling its business uiuler these sections (b) ; and provided the proposed sale is within the section no objection to it can be raised on tliu rALGAMATION AND IlIX'ONSTllUCTION. 805 3 provisions of the 870 (s). proceeding is uinltr ct, 1862 (a). Tliesft 1 register niuloi' the may register for the ig its business under jposecl sale is within ■aised on tlie ground s regulations (o). the powers coiiferred lis to wind up vuliin- in either a ;^eiier;d or hole or a part of its jideration of shiire>. any ('0- '^^'^' " ''''''^' roposed transuelioii is uld give distinct iiiti- iider these sections cl d not to a person wlio, y, is free to miike any iissets to it (,'/). An as the agent or m-ivi A sale to a iorii;:n irrial Bank of Oiiiii v. Uiiidnstan, E([. 91 ; ^ " 17(5. IGl. A sale may lie i" a formed for tlie [mw"' "'' ^■r the Lusiiiess iiiul ;i^>* L'lling company ; Imr''''' ,?,-MV,., 12 E.i. r,04;.l« r,aans L>((»/>, ib. 500,11' U'l I'oolcg executors, 8 I'li. •"-> e sale was to another -m- iig wound ni). rd V. JUnrs J'tdait > ■'•• L. 358. ■dcrd:Co.,Limted,iil'^- 757. (iirapany may be valid, at least where the company selling Bk. IV. Chap. 3. carries on business abroad {i). The sale may be upon any terms which a majority of the Terms and members approve ; and which they are competent in point ^^f •-"'"' '""*• hiw to approve on behalf of the company {k). Thus a sale may be made in consideration of shares in the ptu'chasing company wliicli are not fully paid up (l) ; and the agreement for the sale iiiiiv provide that such shares shall be distributed directly among the shareholders of the selling company, and not given 1. 1 the liquidator as part of the assets in the winding up (//()• Afiiin, it is no objection to a sale that it provides that the purchasing company shall take a portion only of the assets and habilities of the selling company, leaving the rest of the debts til be paid for by the liquidator of the selling company (//). Rut no transfer or sale under those sections can be valid as Dissentients. a.'ahist dissentient shareholders if the terms of the transfer or sde are such as to expose them to increased liability (o) ; c.ply within a year to live the company wound uj) either by the Court or subject to i) E.r jiaric Fox, G Ch, 18.3. (I) See cases in note (/) above. (0 Cibj und County Investment I Co, 13 Ch. D. 475. ("i) lb. («; Ci'ij and County Investment |r:,13Ch. D. 475. (f') C7t)ic/i V. Financial Corpora- IIS 4 Ch. 117, and .5 Ei^. 450, where the sale was set aside after it had been carried out. See, also, Imperial Banh uf China, iSbc. v. Hank "f Hindudan, (i Ec^. !)1. (//) Grijlith v. Paijct, 5 Ch. 1). 8!)4, and 6 Ch. D. 511. See furtlier, as to allowances to directors, ante, ]). 388. ((/) Houthall V. Jlritish Mutual Life Assur. Co., G Ch. G14. 896 AMALGAMATION AND nECONSTUUCTION. This will avoid the tri Rk. IV. cim p. 3. its supervision (?•). riiis win avoid tiie transaction unless sanctioned by tlie Court (s). The remedy for a dissentient member is to express liis dissent in writing addressed to the liquidators and left at the registered office of the company uut later than seven days after the passing of the special rcsolu- tion ; and he must further require the liquidators at tlicir oi^tion either to abstain from carrying the resolution into efl'ect or to purchase his interest (0- If the liquidators elect to purchase the interest of a disseii- tieiit member, they should give him every facility for aseei- taining its value («) ; but he has no right to inspect the books of the selling company after they have been handed over to the purchasing company in order to see whether it would he better to accept the valuation of the liquidators or to "o to arbitration (.r). If the price cannot be agreed upon it must be settled by arbitration (.(/). As soon as the price has been fixed an action may be brought against the company for the amount (:i. With respect to those who do not give the proper notice in due time, it has been decided that although they cannot im- peach the transfer, they cannot be compelled to become sliuic- holders in the purchasing company ; and if they are registereJ as shareholders therein against their consent, they are entitled to have their names removed from the register (a). Moreover, in the absence of a proper and timely notice a dissentient loses his right to have his interest purchased, and it is saiii that he also loses all right to any share of the surplus assets of Omission to give notice of dissent in time. ()•) Citii and County Liir.stmint Socuhj, 13 Ch. D. 475. {s) lb., and § l(il, i.e., sanctioned by an order m.ide in the compidsory wimling up, or in the winding uj) subject to supervision ; Callao BU Co., W. N. 1889, 97. {() The notice of dissent nm^t contain a notice requiring the liijui- dators either to abstain from carry- ing the resolution into effect or to purciiase the dissentient's .share : Union Bank of Kinyslon-upon-Hull, 13 Ch. 808. (it) Imperial Mercantile Credit Assoc, 12 Eq. p. 51.5. (x) Moryan's ci(.■/' ' Assoc, 12 Eq. 504. (;.■) De liosar. v. A wjlo-UnUiU] L'l.'. L. R. 4 Q. 13. 462. (a) Higg's case, 2 Hem. &M. 65:; Martin's case, ib. C69 ; Ex}iarteL'. 11 JurN. S.]661. See, also, i',qHi : Fo.x, 6 .Ch. 176, and Ex patrf Hi'}- shaw, 4 Eq. 341 ; Imperitd .V'- cantile Credit Assoc. 12 Eq. 5ti4. AMALGAMATION AND HECONSTRUCTION. 897 transaction unless y for a dissentient ig addressed to the of tlie company nut f tlie special vesdlu- liquidators at tlicir resoMion into effect ! interest of a disseii- nj facility for aseev- i to inspect tlie looks been handed over to e whether it would W luidators or to go to crreed upon it must be price has been fixed mi any for the amount (;>. 3 the proper notice in hough they cannot im- pelled to become sluivt- d if they are registered nsent, they are entltWa •egister (<()• ^I^^'e^^'^''- y notice a dissentidit urchased, and it is >aul of the surplus assets of „2 Eq. p. i>l''- ror"^ ■e Imperial MevcanhkU'l 12 E.i. 504. , A'o.sa.-v.^).g!o-^'"'»'"^""'' '« «<«<•, ib. 669 ;-^:•'• if i; IN S;661. See,also,i.':i'i- ch. ne, ana i;^ Ff; ;; ", Eq. 341 ; I»ii"'""'' ■" ■' >erfif yLssoc. 12 £'!• W'^' »e. the company being wound up (h). This share, if he were Bk.jv. Cliroceed- ings as they might be advised in the name of the company in [Order to set aside the transactions complained of; but the I Comt declined to order the bank to be wound up compulsorily, [ or subject to the supervision of the Court, and also declined to decide on the petition what the rights of the dissentients 1 were (itliicH beiiih' wound ui> by llic Court. Lifo Itisnraiicf Cuniiinuius. AMALGAMATION AND IlKCONSTUUCTION. Wliore a compimy is nlreudy being wound up Ly tlic Cduii, these sections are not ai)plieablc, as tlie^' are expressly limitel to a voluntary winding up (7). I^ut the Court hns iis wide, if not wider, powers under § 9ij of the act, and in any ciiso where it might seem (h^sirable the Court could, it is conceived, cHect an anialgauiatiou 1 y a saU( under such last-nioiitioikl section (g). The amalgamation and transfer of the business dl' lifu insiii- anee conii)anies is expressly provided for by the Jjif'i! iiisuran ■; companies act, 1870 (A), §§ 14, 15. These sections m follows : — 83 A^ 34 Vict. 1-1. WliC'iv it is iiili'ndod to anial^'iunatc two or iiioro coiiiiianioj, ir! c. 01, s§ M, l.>. tj.ji,|y|',.,. tiiQ ijtV' nsMUi'iuicu business of one company to aiiotliiM', tiieilirtcl: of any (pne or moru of siicli coiiiiianicH may apply to tlie (,'oiiit, Ijv \n-[au to .siiH'tioii llie propD.-iid airaiij^'uniiiit, iiotici; of such aiipli'utinii briii,'] lisliwl in tliu (JaZL'ttL', and the Court, after licariii|j; the directors ai^l "ll ; persons -wliom it considers entitled to In; lieard u)ion the ]ietitioii, iiuV' firm the ^iame if it is satislied tliat no sutlicient olijection In liiciiiTan.'iiii.i.t has been established. iiefoie any such application is made to the Court (/), a stateinuiit ol't'i nature uf the anialj,'aiiiatiou or tran.sfer, as tlu; case may !«•, tiyitlnrwin an abstract containing,' the material facts embodied in the uj^ntmiiit', deed under which such amalj,'amalion or transfer is proposed to W tlltcH and copies of tiie actuarial or other rejxirts upon winch sucii lyiviuiai deed is founded, shall be forwarded to each policy holder of Imili cuniiticid in ca^e of amal;.,'amation, or to each ])olicy hoMer u( the transftirtil ' pany in case of transfer by the same being transmitted iu )iiiUiiicr]iriiv:i by section one hundred ami thirty-si.x of the Companies clausu-i cousuliii tiou act, 181.'), for the transmission to shareholders of notices net rciiiiim to bo served jiersonally ; and the agreement or deed under wliicli -Kr amalgamation or transfer is etfected shall be ojjen for the in.spcLtiuii ul tlif policy holders and slumdiok'ers at the ollice or oliices of the conipaiT'ij companies for a period of tifteun days after the i.ssuingof the al)striitt litrtij provided. The Court shall not sanction any amalganuition or trauslei' in. iiiycjj in which it appears to the Court that policy holders representing iiik-tfi.l| or more of the total amount assured in any company which it i> \n>'\ to amalgamate, or in any company the business of which it is piupi -i transfer, dissent from such anudgamation or transfer. (/) It has, however, been held that they exteml to a winding up under supervision. See Imperial Mercantile Crnlit Atomic., 12 K(|. 504. fc'ee, as to this, Huckley, ed. 5, p. 308, {(j) See A(jnt mid Mi^hnA Bunk, 12 Eq. 5(19, nutc; amlm.l book iv., c. 1, § S, p. T1-. (A) 33 & 34 \'ict. c. (il. ((') See Briton Life Asm., 1887, p. 122. [stuuction. •ound up l>v lilt' <'iiur,, cy are exprossly limiulj ho Court lias aswidf.ifj t, and in any ciiso wlwftj could, it is coucuivtil, der 8U«li liisl-iufiitiuiitii the business of life insui- ibv by the Lifi! insuranrtj These sections m iul AMAI.OAMATION AND IIRCONSTIUICTION. 899 . two or niorc cm^iianii^TlJ mi.iiny l<> iinotli.i'. Ww iliwlrJ iH.ply totlie(,'oiul,liyi«tMJ . of sucli iiiii)li'-Hli<'" l>i'i";:i''" K-iuiu;-; th(^ .liiv.lors an.l M ml upon Uu'p'-litl'm, may inj iutol'jt'i^ti.niloUi^mnm-.iiK.^ he Court (0,^i'^"^'«""^""'''\ fl the case iiuiyl«>',t'W''l'^'f'"« uuili..'Ued in the; iv^mmU ■iUistV.v is proposed to Wetol s upnii whicli audi a-iwiiwcto policy hnhK^r of hnUicomi«ffi h.ihler of the translVircd .« trausmilteainiua.mdVKVi lu. Coinpauies chuisus cmsolil •huhlerri of u.)tiovsui;tn;4Uiiii leiit or .leeil undur whidi ^d ,e open for U.e inspoetiou »» « ee or otlic.s of th. mv^f' I the issuing of tl.eabstoakM -amutiouortvaustcriiwiuyt^ 'hoklers represei.lins,Mau-Ui.tl vcompauywliicliiti>Fr L'less of wlii'^li iti^'wi'"'^^'' iv transfer. \ik, 12 Eq. 509, unti';M''i'i Ik'iv., c. 1, § H, p. Tli V) 33 & 3-1 Via. c. ()1. , 1) riee L'n'(o/' i'.A' •■'■■*'•' " (t, r. 122. Siicoiiii)nny sliall ainftlj^aniate with another, or transfer its hl^^illo.s,^ to Isk. IV. Cliap. 3. I uiiillier, ui:h'ss sinii anial;;aniatiun or transfer is eonlirnicil liy the Court iu I artirlana! with lliis setlion. I'riiviiliil ulwayx, that thiw fiection shall not apply in any cast! in wliirh llhe Imsiiit'ss of any comiiany whit'li is soiii^'hl. to he anial^'ainateil or trans- [femdiliN's lint comprise llie business of life assurance (/,). l.'i, Wlitn an anialKaniatioii takes place between any cdnipanics, or irtditlu' liusincss of one company is transfiiri'od to anotiier company, tlir Itonilinetl cuniiiany or llu; purcliasin^' company, as the case may he, shall, |»illiin tell tlnys from tlie ilate of the completion of tlie amalj,'aination or |traii-l'i'r,il''l"i^i' '•*'''' 'Jn' I'.oard of Traile certilied copies of statements of KLeAS-ctsanil liaijilities of the companies concerned iu sucli amal^'aniation litiansfiT, tii^'ether with a statement of the nature and terms of the amal- Lnuiiiin 111' transfer and a certified copy of the a';reenienl or dei.'d under tliiili Mc\i anial.^'aniation or transfer is effected, and certilied cojiies (jf the ittuarial er (itlier reports upon whii^h such agreement or deed is founded ; iKltlicstaU'iiient and a^'reemi'Ut or deeil of amal;.,'ama1ion or ti'ansfer shall (Voiimpauiiil liy a declaration imder the hand of tlu; chairman of eacii Ismpany and tlie principal nianaj,'ini,' oflicer of each company, that to the KtMltlieir licdief every j)aynient made or to be niad(i to any person wliat- Kwr on accdiiiit of the said amalgamation or transler is therein fully set lirtli,;mdtiiut no (tt her payments beyond those set forth Jiave becMi made tari' tu liu niadi; either in money, policies, bonds, valuable securities, or IttrpnijRrty by or with the knowledge of any jtaities to the saiil amal<^a- latiou or transfer. [Theeft'ect of the nniiilganmtion of life insufnnce companies 1 their policy holders has been already pointed out (/)• iTlie aniiil^iiination of companies working mines within the Cnst-bnok pmiiuit's IS dealt with by 50 iv 51 Vict. c. iS, § 27, which ptts— I'liin the limits of any mine join those of any other mine the 50 k ."Jl Vict, Bpanierircspt'itively working,' the said mines may, with the consent in '^- '^^< ^ "^' (i% (if the respective lessors thereof in all cases where such consent is Liw ur custnm necessary, amalj^'amate and become one conijiany, pro- Bflthatni) such amalgamation shall take place unless each of tlie said ^ipiiiiw shall authorise the same by a special resolution, to which two- in value of the shareholders iu the said company shall consent iu fiin.'; such resolution shall be registered in the Court, and the unialga- pu diall nut take etfect until such registration, and shall be advertised Bch manner as the Court directs. ^I'driyiis Life Ass}ir. Co., 3!) '., which was the case of a Vm under this section. (l) See ante, jip. 2o!) ct .teq. p. 737. 3 M 2 m Iflffij :[ 1)00 AMAI.OAMATION AND nKCONSTlUiCTION. Hk. IV. fhftp. 3. The act, liowever, oontnins no (lofinition of lunalf^'iimatioti nor nro tliorc any provisions dealing with the ri(,'lits of djssei ticnts ; and although the resolution authorisiiif,' llio mnulm mation requires to be registered in tlie Court, it docs ni appear that the Court has any dis(!retion a8 to witliholdiii;!tli registration if it is duly sanctioned. Tlie effect of amalgamation on the debts of the amnli'aia ting companies has been already dis(!ussed (in). Reconstruction. Where a company wishes to alter the nature of its business or effect ai thing which is ultra vires, and wliicli ciiniiDt le authorised by an alteration of its constitution under powirj conferred upon it, recourse is commonly had to rccoiistnidiun. Reconstruction differs from amalganmtion in tliat, as a rule, there is only one transfta-ring company, and tlu! coiii|)aiiv' wliich the property in (piestion is transferred is ]ii'iutiail!ij the same company with some alterations in its coiistitiitiij In point of law, the two companies are, however, distill persons. The method of proceeding to a reconstru(!tiou is similar t^ that described above in cases of amalgamation. The m usual way of proceeding is under §§ 161 and 162 of tlied' panics act, 1862, a new company being formed to take overt assets and liabilities of tlie old company. (wi) See ante, pp. 258 d Kcq. and 734 et seq. As a rule, a ]mY- Boii wlio becomes surety to a corpo- ration f(jr the conduct of one of its Bcrvants is discharged by the amal- gamation of that corporation with another. See The Eastern Union Hail. Co. V. Cochrane, !) K\ :'j| and L. li. d; S. C. llaiLCo.x.'v win, .3 Ex. .320, wliere tlu' was not disehai'i^eil ; but iht -IjI amalf^amatinj^ tlu^ two coiitiiutiij exjjress provision on the tiibj'^d iSTlU'CTION. AHANUONMKNT 01' KAILWAYb. 901 lition of lumilniimation; ni\i the ri^lilHof (lissen-l [HithorisiiH? tlu> mAa- the Court, it docs n tl ion as to withholdiuj; tin debts of the iunRlgi\ii.a-| iissed (»/0' he nature of its ksin(>J res, and which ciiuiiot 1<| ■oustitutioii under rMml )uly had to rcconstnictiunJ imation in tiiat, as iivulej [m\y, and tht; comimm' i transferred is pvactital rations in its coustitnti.nj ies are, however, ilistoj veconstruc^tiou is siuukn amalgamation. The § 161 and 162 of the C.i eing formed to take over ilj ipany. iil Co. V. Cochrane, 9 Ex.1 Ul. Ji.cO a. C. U'tiK^o.xS'i \„ 3 Ex. 320, wUcre llu' ^«1 .alt.amatiu« tlu. two cont- L,rr«.s provision on the suVM CITAPTER IV. lnUIlE AIUNDONMKNT OP RAILWAYS, AND THE WINDING UP AND DISSOLUTION OF RAILWAY COMl'ANIKS. The lust windiiig-np acts to which it is necessary to advert, Rk^JV. tUini'J. [are, "The Al)and()nment of Railways Act, 1850 "(a), "The Iliiilway ('(imimnies Act, 1867," (i), and " The Abandonment |,-f Railways Act, 1869 "(c). 1. Abandonment of Rail w a// h. Tlie first of these acts was passed in 18.'>0, and only applied Iti railway companies incorporated by Act, of rarliaiuent, and leiiipiiwoied to nuike a railway by an act passed before the 14th |cf August, 18.'50((/). Other railways, incorporated by act of Parliai'ient could, btil the pnssiuf,' of the Railways Companies act, 1867 (c), only woiuul up (if at all) under 7 it 8 Vict. c. Ill (/). The teiiilway Companies act, 1867, amended the act of 1850, and fcxttmk'd the operation of it to all companies authorised to 13 & 14 Vict. c. 83. I ('■) 30 & 31 Vict. c. 127. ; 32 & 33 Vict. c. 114. Lor. I HallwUMe's act (!) & 10 Vict. c. 28), Ihk'li applied only to unincoriui- P'l railway companies projecteil ffore July, 1846, has ceased to be i any practical importance. See, P"ii it, JoncH V. Charhmord, Ki 271 ; Vtmpland v. Challis, 2 ■ •>S2 ; Owen v. Challis, 6 C. B. '> ] mi Ex jxtrte Clarke, 12 .Tur. pi ; and Ex parte Green, ib. 534, m 13 ib. 775, as to proof of debts. m 13 & 14 Vict. c. 83, § 1. As 1 its retrospective operation, see Maclceuxie v. Slitjo, dr., Rail. Co., 18 Q. li. 802. (.') 30 & 31 Vict. c. 127. (/) Whether ruihvuy companies incorporated by special act, were within 7 & 8 Vict. e. Ill, was doubt- ful. See Bright v. Mutton, 3 H. L. C. 366 ; Ex parte Btmje, 1 iJe G. & S. 588 ; Ex parte Spackman, ib. 50!). Such companies were expressly ex- cepted from the Winding-up acts, 1848-9. See as to the Companies act, 1862, Eimis and West Glare Kail. Co., 3 L. R. Ir. 94, and ante, p. 618. 902 ABANDONMENT OF RAILWAYS. Bk. IV, Chap. 4. make railways by any act passed before the session 30 & 31 Vict. These acts were amended by the Abandonment Railways act, 1869 (g). The joint effect of the three acts with respect to the abandon- ment of railways is in substance as follows : — If any company authorised to make a railway by act of Par. liament passed before the session 30 & 31 Viet. (/<) desires to abandon the railway in whole or in part, the company may, bv the authority and with the consent of the holders of three- fifths of its shares or stock apply to the Board of Trade (i) for lil arty to abandon the same (/i). If less than tliree-fiftk of the share capital of the company has been subscribed, tli? Board of Trade may, if it think fit, without tlie prelimiii;i consent of a meeting of the shareholders, proceed under the act of 1850, on the application of any person named in the special act as a member or director, or of any perstjn nanufl in j a warrant or order directing payment of any deposit, or \\h has lent the deposit or any part thereof, or who has entertJ | into any bond conditioned for the completion of tlie railway, or for payment of any money in default thereof (/), or in tlie| case of a company, no part of whose railway is open for traffi( on the application of a judgment creditor (m). If the Board of Trade entertains the application, tlie fact i its having been made must be publicly tiotifted by the companvj in the manner directed by the act, so that persons desirous ul'j opposing the application may have an opportunity of ioim so (/?). After due notice has been given and the time tliercH fixed for opposing the application has expired, the Board ufl Trade may by warrant under seal, and signed by twooruMjl of the members of the board, authorise tiie abanu(tnmentoftl;e| railway, or the portion of it described in the warrant, as t board may think fit (0). The warrant is required to beailver-| tised {2)) ; and after it has been duly advertised (of wliiclia (g) 32 & 33 Vict. c. 114. (/(,) 30 & 31 Vict. c. 127, § 31. (i) These powers were originally vested in the conimiiill land 12. (ii) 13 & 14 Vict. c. 83, § 14. I') III. §§ 16, :j-28, 35 and 3(J. jUo is amoiuleil by 30 & 31 Vict. It. 127, § 31, 1." substituting 21st |May, 1867, fori xdi Feb. 1850. (?) Ibid. § 28. (:) Ibid. 5 31, cl. 3, 32 & 33 Vict. Ill, § 5. See IVaterfonl, tC'C, Hail. Co., Ir. Rep. 4 E(i. 538, as to the right .s of the depositors. {a) 30 & 31 Vict. c. 127, § 31, cl. 3. (/-) 13 & 14 Vict. c. 83, § 2!), amended l>y 32 & 33 Vict. i'. 114, § 10, now repealed 4G & 47 Vict. c. 3y. (c) The substance id' which is given ante, p. !)02. (rf) .32 & 33 Vict. c. 114, § 4, 904 SCHEMES or ARRANGEMENT. Ajiplication of deposit. i!k. lV^Chap^4, Under the joint operation of these acts and special acts th. deposit money may usually be applied in compensating land. owners for loss occasioned by the abandonment of the under- taking (c) ; and in paying creditors if the money to pay tliein cannot be raised by calls (/) ; but the deposit is not applicable to pay promoters, parliamentary agents, and people emploved in the promotion of the comiiany (g). 2. Arrangcmenta between railway companies and their creditors. In addition to the jirovisions relating to the abandonment uf railway undertakings noticed above, the Railway Companies j act, 1867 (/t). contains provisions relating to railway companies unable to meet their engagements with their creditors, l' this act was passed, railway companies which had exliausteJ I their capital and powers of borrowing, and were desliousof raising further capital to meet their engagements, were com- pelled to ai)ply to Parliament for a special act confeiriiijl further powers of raising money. Parliament in dealing witli these applications was in the habit of considering how far tlic aiTangements proposed as to the new capital were assented U or dissented from by the proprietors of the existing capital of ] the company. The object of the Railway Coi ipanies act, 1867, is to dispense with special aj)plications to paiHankUt, and to give a parliamentary sanction to a scheme approved I; I the Chancery Division of the High Court, and assented to bv certain majorities of the various classes of persons interested | in the undertaking (/). The act provides that where a ra (c) Ruthin and Cerricj-y-Drmdion Rail. Act, 32 Ch. D. 438 ; Potteries, Shrewsbury and North JFaku Rail. Co., 25 Ch. D. 251. (/) Bradford Tramways Co., A Ch. D. 18, ami the ne.\t note. {()) See a.* to promoters, &c., Birm- ingham ami Lichfield J miction Rail. Co., 28 Ch. D. 652 ; Lowestoft and Yarmouth Tramways Co., 6 Ch. D. 484 ; Barry Rail. Co., iCh. lUlJ; Brampton and Longtavti I!"!'. ftJ 10 Eq. 613. A .solicitor r diil mentary agent was paid in . ton Station Act, 20 Eq. 197; n^.j query this case, see ante, 147, d) : and in the absence of \ fraud (c) the scheme, when enrolled, binds the company, and all ' the persons whose assents were necessary to it ; but it docs not bind any outside creditor unless he has actually assented to it {(l). After the enrolment no appeal can be made against the order confirming the scheme (e) ; but in order to prevent mi appeal from being defeated, the Court will suspend the tii- rolment (e). Upon the enrolment the summary powers gi^n Railway Com panics' acts, 1867-9. have not. Potteries, ttr., Rail. Co. V. Minor, 6 Cli. 621. («) § 11. (x) § 12. (2/) § 13. (2) § 14. (fl) § 17. There is no clause ex- pressly requiring uU these assents, but § 17 implies that they are neces- sary. See The Cambrian Bail. Vo.'s Scheme, 3 Ch. 278, 284, V.-C. Wood's judgment. (6) § 18. (c) East and JFcst Junction Rail, Co., 8 Eq. 87. ((?) Cambrian Bail. Co. :<•'!•■ nie, 3 Ch. 278 ; Bristol and A /(A Somerset Bail. Co., 6 Eq. 448 ; /."s( and IVest Junction Bitil. t'"., "- I'4 87,!)1 , Stevcjis v.MidHaul.illnl<''i., 8 Ch. 1009 ; ami coinpuv -V' (ft and Kinijacourt Bail. Cn., 17 I.. H., Ir. 410. See, also, Be ^ko,,.-. In. Ecp. 6 Eij. 604, wlicre a jiulLri'iint creditor and statutory iiiortga;.'n of the company was held not bouiul by its scheme, though duly conliimed by the Court. (f) Devon and Somcrsd llnu. ''o. 6 Eq. 615, 618. SCHEMES OF ARRANGEMENT. 907 ers [x) respec- liree-tourths in ii'iliuavy share- 3 at an extraor- (,-id ll'dl '-'<>. Bj^ ray .: \mm'' 909 APPENDIX. No. I. FORETGN COMPANIES. It is an established rule of private international law that a coi'jioi'ation Appendix I. July created according to the laws of one state may sue and be sued in its „ j. ,j coqwrate name in the courts of other states («). This rule was recognised panics. liv our own courts in the case of The Dutch JFcft India CompftHji v. priviie.fes of ilms (b), and since that decision there have been several instances of foreign'com- aitions and suits instituted both by and against foreign incorporated [Kinlcs. Kiiiiiianies (c). Tlie individual members of a foreign incorporated com]iany cannot l)e sued for the debts of the company contracted in another country where it carries on business (d). This was decided in the ease of a company incorporated in Victoria and carrj'ing on business in Western Australia, Imt not registered there : nor was it material that by the laws of that -tate the members of a native company which had never been registered wore liable to be sued individually for the company's debts (d). But a corporation created by a government, not recognised by her Majesty, cannot be recognised as a cor])oration by the courts of this rouutry (c). A foreign corporation may sue here by the name it has acquired liv reputatiun (/). As regards procedure (g), and parties to actions, the law of the country id) See Story, Conflict of Laws, § 565 ; 2 Kent's Com. p. 284, ed. 6. {l)lStr. 611. (f) Sec, for example, IFestman v. Aktitholaget, ttc, Fahrik, 1 Ex. D. 237 ; The National Bank of St. Charles V, Barnaks, 1 Car. & P. 569 ; South Oirolina Bank v. Case, 8 B. & Cr. 427 ; Icici'j T, Baldwin, 11 Beav. 153 ; Siul- Ine V. Dutch lihenish Rail. Co. , 21 Beav. 43; Markren v. Stainton, 16 Beav. 279 ; iladcnzk v. Sligo and Shannon Kail. Co., 8 Q. B. 862. As to actions for [calls, Bee W'elland Rail. Co. v. Blake, 6 H. & N. 410. {d) Bateman v. Service, 6 .Vpp. C'a. 386, and see infra, p. 913. (c) The City of Berne v. Bank of England, 9 Ves. 347. (/) Dutch West India Co. v. Mose.t, 1 Str. 611. {g) See, as to service of writs on agent, &c., liere, Mackereth v. Glasgow and S.-W. RaU. Co., L. R. 8 Ex. 149 ; Lhoneux Limon J: Co. v. Hong Kong Banking Corp., 33 Ch. D. 446 ; Baillie v. Goodwin Co V Westman. S ib. 487 ; » 77 If carefully examined, te ;„ly decide ^hat is unquestiorfy viz, that a corporation formal « y oil a iwticular business .n «e L exceeds its rowers if >t cams :lilarbuBiuessoutofthatoo.«.. .he same time the judges .1.0 dc- ^ eases based their 3«Js--'' ,0Bed grounds of intevnanonal la. Seeacc.B««^-o/'l''!'"*"'^'^ ' TZlZ Bail Co... Bl.^.a 415. i) lb. - „„ .5; , See 4 PhiU. Int- ^^'l'^; ,;j29; andWestlake.Pnv.Iatb. i5 it seq. siiiiportefl hy the decisions of our owii courts (p). By the principal place Appendix I. f i|,„.^^ "is meant the place where the administrative businiws of the ) „f liiisille comiMiiv is conducted ; this may not be wliere its inauufacturiug 1 .r other hvm*i operations are carried on (rt I'f the United Kingdom in which its principal place of business i. situate (seen !)!»)()•). As rcards payment of income tax, it lias been decided that income Residence for tax is naval de hy an English registered company carrying on business parposca of aliiv.;id on tlie whole of its profits wherever earned, and not only on so incorae-ta.\. much of tliein as are received in England (k) ; but that foreign companies oiurviii" oil l)usincss here are only assessable in respect of their protlts caintd here (I), or remitteil here for division amongst the sharuluddcis (it). Tlic-e cases turn on the language of the income tax acta, and illustrate the iiuaiiin" of reside and carry on business as applied to coiiipanies and their a;;i.-iits. l!ut altliough a foreign company may have its principal place of bu.si- Jurisdiction ni'ss aliioad, and be therefore domiciled abroad, it may be sued in the over foreign uiiuts of tins country if it is in fact amenable to the jirocoss of our courts, coinpauics. Tluve is no ditfeieiice in this respect between a foreign individual and a foai'ii corporation, except that the individual may he amenable to process IniIIi in his person and in his property, whilst a corporation domiciled abroad can, it is conceived, only be amenable to process through its iirupeilv and its agents. In neither case, however, does the simple fact (if a foreign domicil exclude the jurisdiction (.c). Service of writs out of the jurisdiction is now governed by R. S. C. Service of 1883, Oiil. XL, to which the reader is referreel. A Scotch Insurance writs out of tiie jurisdic- tion. (p) In Taylor v. Croiuland Oas Co., Ill Es. 1 ; ^i '/'(»!« v. The Great Western \MI. Co., 6 H. & N. 404 ; and Shields jv. The Great Northern Mail. Co., 7 Jar. In. S. 631, it was held that a company Iil*clls(in the sense iu wliich the word is iBscd in the County Court acts) at its jrinciiial place of business, e.ij., in the lease of the Great Western Hail. Co. at [Paddington. Again, in Miaoi' v. The mdvn and Xorlh-Western Rail. Co., I C. a N. S. 325, and Corbctl v. The B«iicra( Siteam Saviijaiioii Co., 4 H. & 48'2, it was held that a company, lose priucipal place of business was in oiidon, but which had an office in a «ntry town, did not carry on business fcere within the meaning of the same p. J!oe also, Lc Tailleur v. South- K(mi Rait. Co., 3 C. P. D. 18 ; Keyn- flift Blue Lias Lime Co. v. Barker, 2 H. & C. 729. {/() 8eo the cases iu the last note, and in the next two notes. (»■) Jones V. Scottish Accident Ass. Co., 17 Q. 15. D. 421, noticed infra, and see tlie next note. («) Cesena Sulphur Co. v. Xiiholson, and Calcuttu Jute Mills Co. v. Nicholson, 1 Ex. D. 428 ; Alexander Water Co. v. Musrjrave, 11 Q. B. D. 174. (t) Att.-Gen. v. Alexander, L. R. 10 Ex. 20 ; Wcrle A Co. v. Colquhoun, 20 Q. B. D. 753. («) GUbertson v. Fergusson, 7 Q. B. D. 562. See also, as to this, Colqvhoun V. Brooks, 21 Q. B. D. 52, and 19 ib. 174, as to profits remitted from a firm abroad to a partner here. (x) See Maclarcn v. Stainton, It Beav. 279, and tiie judgment of Lord St. Leonards, 5 H. L. C. 450. 912 Appendix T. Jurisdiction over foreign companieB. Interference with foreign companies. APPENDIX NO. I. office registereil in Scotland, but having an agency and r- chief offi-c jn England, and iHSuing policiea here, was held not to be domiciled or ordinarily renident in England so as to authorize the service of n writ on it ill Scotland under this rule (y). The jurisdiction of English courts over foreign compiuiies was (liscus.imoii as to the mere question of jurisdiction. Companies formed in this countiy, for the purpose of carrying on bu-i- ness abroad, but having their ])rincipal i)lace of business here, are tlearlv subject to the jurisdiction of English courts (a) ; and may be wound m in this country (6). The jurisdiction of the courts of one country over companies domioilnl in another country, appears therefore to dejieiul upon whether tlmsi; emu- panics are, through their property or their agents, amenable to the prie- of the courts in which the companies are sued. Assuming a iuw;,ii company to be amenable to the process of our courts, there is nothing 1 1 prevent its being sued or even adjudicated bankrupt here, if it coulJ K so adjudicated were it an English company (c). A foreign company cannot be registered as an existing cnmniiiv under the Companies act, 1862 {d) ; nor can it be wound up undtr tliii act unless it has a branch office (not merely agents) in England, and a.-.ni' which an English court can reach (d). Practically it would be inipossiUf j to wind it up completely ; and if it were a corporation there would be iij jurisdiction to dissolve it. A foreign company which is amenable to the jurisdiction of the cuurii of this country may be restrained from suing its own members in the court- of tlie country where its principal place of business is situate (e). Dat if disputes between the members, or between the company and strangeiv, (y) Jones v. Scottith Accident Asi. . Co., 17 Q. B. D. 421. (z) 6 H. L. C. 416 ; Maclartn t. Stainton, 16 Beav. 279. See also as to income tax the cases in note («). (o) See Buenos Ayres Rail. Co. v. North Rail. Co. of Buenos Ayres, 2 Q. B. D. 210, where an action was held to lie for rent of land abroad ; Madrid and Valencia Rail. Co., 3 De G. & S. 127, and 2 Mac. & G. 169 ; Butt v. MonUaux, 1 K. & J. 98. (6) Princess Rcuss v. Bos, L. R. 5 H. L. 176. (c) See, as to bankruptcy, Royal Etui of Scotland v, Cuthbert, 1 Kose, ul pcul, 7 Jur. N. S. 689, in Hitiuite abroad cannot U line contract or transaction defendant in favour of tin: kring its prinoiiial place 4 lice for the sale of its gooJs iah courts, was nmch Jiv ; and although in that ix-x r'opricty of making a Ami jn no difference nf opiuiuii jurpose of carryiny on k+ jf business here, arc clearly (a) ; and may be wound up xy over companii's domicik-.! ul upon whether llmsi' com- ents, amenable to tlic pviav sued. Assuming! a furei;;ii ir courts, there in nothing i^i bankrupt here, if it couldW ■d as an existin- cnnipv ^ it be wound up under thai afrent8)inEughunl,anda,M- tically it woukl be iniposiVit forporation there would kiKi die iurisdiction of the cuuii- L own members in the coum f business is situate («). l"! the company and strangers, See as to bankruptcy, iio!/«'B«'' Lth Marine Ins. Co., 9 Be.-. See Bvlkdeyy. SfA«(.', L ^ '' 764 ; Lloyd Generak Itdm , D 219, and compare Malhm U;Limi(erf,27Ch.D.225;Co. iBauk of South A^mh,^\ m,anu36ib. 522, and -*, See also Bateman v. *«"'«, b. Ca. 386. , I tare arisen and been the subject of liti;,'ation and been adjudicated upon lvafuriii;n ii'urt "f competent jurisdictiijn, its di'ci.sion will not be re- vicWfd here at the instance of u member resident here and not a jtarty to till' iiroceeiliiigs abroad (/\ It has also been decided that an aji[dication by a company to a forei},'ii ■i.veraraent for further powers ought not to be restrained by the courts of thb country (.'/). A>;aiu, although a corporation duly created in one State, is recognised A. acurpuratiuu by other States, the transactions of that corporation are iiivinied, not by the law of the State creating it, but by the law of the jlate where thost' transactions occur, and by the constitution of the cor- ],ii-jtiuii(/i). This hist is important ; for the capacity of a corporation to ,i;i|iiiie rights and incur oldigations is limited by the objects to attain wiiith it is created, and these lif . nmst be regarded whenever and w'.iiRvir the extent of the corporate powers has to be judicially decideil (/). Bii; it hy no means follows that what a corj)oratlon can lawfully do in li;. State where it was created, it can also lawfully do in every other State i wliitL reco},'uises its existence. This nuist always be borne in mind when, I as tMiueutly occurs, a company is formed here for the purpose of transact- in,' business in the colonies or in foreign countries. Suppose, for exaniide, ikt a ifgistered company is formed in England ibr the jturpose of working miurt or ciUtivating estates in a colony. If, by the laws of that colony, a I (.ii")ration cannot hold lauds, the company will not be able to attain its lel'jiit without obtaining si)ecial authority from the proper quarter to hold Larl< in the colony. The jirojier mode of transferring shares in a foreign incori)orated com- hany depends on the laws by which the company is incorporated. But Ifotdgn laws of estoppel do not govern transactions in this country ; nor ■ dutuiuents wluch are treated abroad as negotiable instruments neces- Ifjiily so treated here (k). One of the most important (juestions which arise with reference to It rci^n companies, relates to the personal liabilities of their members. If a Iciiuiiiany is incorporated by a foreign government, so that by the constitu- |tiuu of the company the members are rendered wholly irresponsible, or dy to a limited extent responsible, for the debts and engagements of the fenipany, the liability of the members, as sucli, will be the same in this Appendix I. Laws applic'- ahlc to tlio transaetiuii!) of foreign compiUiieH. Dealings in shares. Lial)ilitic8 of the Hieiiiliera of foreign companies. (/) See Sudlnn: v. Dutch Rhenish fiii Oj., 21 Beav. 43 ; Bank of A us- fi'"m V. llardimj, 9 C. B. 661, and •Viw, 16 Q. a 717 ; Kchallv. Mar- 1<", U'. B, N. S. 241. As to suits K:; Mil abroad concurrently, see Bent^ "i'lmj, 9 Sim. ISO, and Transatlantic V. Pittroiu, Johns. 604 ; and as to H^tvo suits heing for the same matter, ■Hiinkr v. Stewart, 10 W. K. 176, J, ' Bill T. Sierra Nevada, d:c., Co., |I'=It. F. tj. 177. •}■ hBranlci/ v. South-Eastcrn JiaU. - 12 C. B. N. S. 63, a contract made fiaKnglish company in Boulogne, and i L.C. valid by the law of France, was held valid, whatever might have been the case if the contract had been made in E gland. See, also, Matindcr v. Lloyd , 2 J. & H. 718. It will be assumed iu the absence of proof to the contrary, that general principles of commercial and mercantile law are the same abroad as here. Picker iiu/ v. Stcphemon, 14 Kq. 322. (i) See the Canadian cases, noticed ante, p. 910, note {k). (t) Williams v. Colonud Bank, 38 Ch. D. 388, and other cases noticed ante, pp. 481-3. 8 N % 014 Ari'KNDIX I. Enforcing' forcij^n jiulb'iiieuts. Convention witli France, and otiier countries. APPENDIX NO. I. country 88 in the country wliicli c toiiIcmI (lie coriioratidii (/). But witi ' niHpcct to unincoqinrulc'd coniimnics, tlii' nicasiirc of li.ilijlity in rcsiic'itf any ^ivcn triinHaclion», wocniH, upon prin(i|ilo, to (U^icml upon tliclawcf the place wliere till! trunHuctionH in <(uenlion orcurrt'd (/«■' Imi nntmciih The luw of ngeiicy, an adniiniNtiTcil in that place, would, it in cfmoivi-i have to be applied ; and tlie law of tin; ])lace "" the company miutit 1» considered as domiciled woidd only lie mate the ] lurposp df iltt,;. niininj,' the authority j^iveii by the nieuibers to ilui a^eut^ by wlioin ;•. tianxaclions in (jueHtion were condueted. See, upon this dillicultM;!' Slon/n Conflict of I, awn, !^ ."120 «, an''- 8 Ex. 638 ; and Schibsby v. Wcit"i'- L. R. 6Q. li. 155. I. INDUSTIUAL AND PROVIDENT S0CIKTIE8. 916 lie (M)r]ioruti(iu (/). Uut »■ as\iri' of li.iliility in n-in ; If, to (Iciiciiil uiHiu the l,Wi, I II (H'.curreil (/''■>• ^'(1 rmtwu'v. t plnco, wouM, it if comv;'.. ■ (. ■ ■•" the ciiiniiiiny nii;;l;t'- e the purpose nf Jct^r- s lo ilw (igt'iit.^ liy wlioni !;,. ■i»n8"i > ti ' nforming to the law- ' o\^ e preceding article -L: I ma, conatitnteJ and aiitbuiiTlj [t convention, as to tliosentij thorisi'd. concluded without limit i«;j| all, however, he at liWny; ar's previous notice. Tlienj ves the power to introiliin ;:: modifications which rtpttidil IV 1 th T.clginm (sec Pari, rai-r-l Pari. Papers for 1867-Nv.l Papers for 187-1, vol. hsv;. 1883, vol Ixxxii. p. 659), cj D. 17, affirming L. R. 9 Ex. '^ re a French company had olu:.« went in France against an E»P« iber, lb. ; compare M»us v. TIM-'. 638 ; and Schibsby v, Il'tC'"'-- 6Q. 15. 155. No. II. INDUSTRIAL AND PPOVIDENT SOCIETIES. Inpubtriai. and Provident SocieticH, an governed hy tiie Industrial and iruvident societies act, 1H7() (39 & 40 Vict. c. 45) («), are a i)eculiar kind of limited joint-stock company. They are societies formed for the piirpoM' of carrying on any lahour, trade, or iiandicraft, whether wholesale ir retail, includinf; the hnying and selling of land and banking, but subject l(. certain restrictions ; but no member other than a registered Industrial and Provident Society can have a greater interest in the funds of the (ocicty than 20(ii. (§ 6). There must be seven nn labers at least (§ 7) ; and infants over sixteen may be members ({5 11, cl. !)j. Such a society is foniitd by being registered by the registrar of friendly .societies (§§ 7 and 8) ; and, when registered, it becomes a body corporate by its registered name, [having a perpetual succession and a common seal, with power to hold land.-iind Iniiklings, and with limited liability (^ 11). It cun bind itself k promis.'iory notes and contracts in the same way as companies registered I under the Companies act, 1862 (§11, cl. 10 and 12). The registrar's certificate vests in the society all jtroperty that may at I the time be vested in any person in trust for it (§ 1 1) (h). The society, being incorporated, must sue and be sued by its corporate I name ; and its members are individually liable for its debts and engage- I ni'nt.s only so far as the statute declares. As in tlie case of companies I registered vmder the Companies act, 1862, so in the case of societies regis- Itercd under the act now in (juestion, the members are not liable to have lexecutions issued against them in respect of judgments obtained against jlhe wcietj'. The members can only be reached individually by the jprocesij of winding up (c). For the protection of creditors, however, the Iwitty is bound to have a registered office (§ 1 0), and to use the word jliiiiitcd as is rerpiired in the case of companies registered, with limited Ihability, under the Companies act, 1862 (§ 7), and to make certain lannual returns to the registrar (§ 10) ; and to have its accounts audited 1(1*.). A register of members is requirad to be kept, and is primd facie jtridence that the persons named in it are members (§ 11, cl. 1 1). (a) Amended by 43 Vict. c. 14, § 8, Is to income tax; 46 & 47 Vict. c. 47, ', which extends tlie power of nomina- h given by § 11, cl. 5 & 6 ; 47 & 48 pt. c. 43, § 4, which repeals § 19, I- 5, and part of cl. 6. I': See Queentburj/ Induttrial Society '■ fi*M, L. R. 1 Ex. 1. (c) See, under the older acts, Dean v. Mellard, 15 C. B. N. S. 19; Linton y. Blakeney Industrial School, 3 H. & C. 853, and Gray v. Raper, L. R. 1 C. P. 694, as to debts contracted before regis- tration ; and see the last case as to stay- ing actions when the society Is being wound up, 3 N 2 Appendix II. 016 Appendix II. Rules, &c. Winding up. Contributories and their liabilities. APPENDIX NO. 11. The Industrial and provident societies act, 1876, contains little reaped- ~ ing the nianagenient of the affairs of a society registered under it or the rights of its members. Provision, however, is made for the settlement of disputes by arbitration (§ 14) (d) ; for the official inspection of theatfain of the company upon the application of a certain iiroportion of the mem- bers (§ 15) ; for the inspection by the members of the books of the com- pany (§ 10) ; and for the nomination by members not entitled to more than 501., of persons to succeed to their shares on their death (§ 11,01.5!, Subject, however, to these enactments, the rights of the members inter it, and the management of the so-jifc-^''} affairs, are left to be provided for Iv the rules of the society. The rules bind the members as if they k'i entered into a covenant t( observe them (§ 11, cl. 2). They mav W altered from time to time, and must be registered by the registrar, an] j copy of them must be delivered by the society to any person on demaiiJ, on payment of a sum not exceeding one sliilling (§ 9). The act in question does not contain any form of rules ; but the schedule to the act contains a list of the matters to be provided for li- the rules of societies established under it. A society registered under the act is eni.powered to amalgamate wtt a similar society (§ 16, cl. 3) ; and to register itself as a company nndtr the Companies act, 1862 (§ 16, cl. 4) ; but a special resolution is necessan- for these purposes (ih.). Societies registered under the act in question may be wound up either P by the court or voluntarily : but the court having juii.-idiction over the winding up, is the county court of the district in which the sociity- registered office is situate (§ 17). Societies not registered under thiik!, but capable of being registered imder it, may apparently be wound ap | either in the Chancery division of the High Court or in the county f court (e). With respect to contributories and their liabilities, there is no : stantial difference between societies registered under this act, and coni-l panics registered under the Companies act, 1862 (see 39 & 40 Vict.| c. 45,§17)(/), Arbitration. (d) Upon the corresponding provisions in the older acts, the leading cases ire Fleniiwj v. Self, Kay, 518, and 3 De G. 51. & G. 997 ; Farmer v. Oiks, 5 H. & N. 753 ; Morrison v. Olover, 4 Ex. 430 ; Cuthai v. Kingdom, 1 Ex. 494 ; R. V. Trafovd, 4 E. & B. 122 ; Kelsall v. Tyler, 11 Ex. 543 ; Smith v. Lloyd, 26 Beav. 507, in which it wa'i held that the provisions as to arbitration did not apply ; and Crisp v. Bunhury, 8 Hing. 394 ; Reeves v. White, 17 Q. B. 995 ; JR. V. Mildenhall Savings Bank, 6 A. & E. 952 ; Timms v. Willinms, 3 Q. B. 413 ; Thompson v. Planet Building So- ciety, 15 Eq. 333 ; Wright v. Monarch Investment Building Society, 5 Ch. D. 726 ; UucHe v. Wilson, 2 C. P. D. 410 ; where it was held that they did. See, also, Armitage v. Walker, 2 K. i Jj 211 ; Wright v. Bcshy, 4 H, & C. it Edwards v. Aberayron Soc., 1 Q. B. Dj 563. As to Friendly Societies, hm Liver Friendly Society, 35 Ch. D. 33Jj As to Building Societies, see i«.m p. 921, notes (c) and (rf)- (c) See Midland Oounliet Bmi Building Soc, 4 De G. J. k Sm.m reversing S. C, 10 Jiir. N. S. h^ Chatham Industrial Co-opemtirc .v« 10 Jiir. N. S. 983; Kothcrhitk. Soc, 32 Beav. 57; Fouiuain's cc". Jur. N. S. 553. (/) See Fountain's cote, 11 -'^ N. S. 553, L. C. as to lialnlit.vf respect of debts contracted before r-'^ tration. INDUSTRIAL AND PROVIDENT SOCIETIES. 917 ,76, contains little reaped- registered under it or tk made for the settlement if ial inspection of the affair- in proportion of the mera- 3 of the hooks of the com- .bers not entitled to mote on their death (§ll,cl5. its of the memhers inhr *| red under this act, and «• t 1862 (see 39 & 40 \Kt.| A society imder the act is, however, dissolved by the order or the Appendix II. resolution to wind it up as the case may be, or by an instrument of j^. , . ilissolution signed by three-fourths of the members (§ 17). The notice of dissolution must be advertised in the Gazette, and, unless steps are taken ftithin three months in the county court to set aside the dissolution, the society is to be treated as dissolved from the date of the advertisement ill. cl. 3 «)■ Bwt this must mean dissolved so far as is consistent with the proper winding up of its afiairs ((/). Trade union societies, being in restraint of trade, were illegal before Trades Union 34 & 35 Viet. c. 31 {h). Now, however, such societies may be registered under the act last cited ; but neither the Friendly societies acts nor the Industrial and provident societies act, nor the Companies acts, apply to tiiem (t). (y) See ante, p. 870. Aa to paying the whole assets to the last surviving nember, see Spiller v. Maude, 10 Jur. X. S. 1089. (*) See Hornby v. Close, L. R. 2 Q. B, 153 ; Fairer v. Close, L. R. 4 Q. B. 002 ; HUton v. Eckersley, 6 E. & B. 47 ; but compare R, v. Stainer, L. R. 1 Cr. Ca. Res. 230, as to protection against embezzlement. (i) 34 & 35 Vict. c. 31, § 5. See R. V, Registrar of Friendly Soattks, L R. 7 Q. B. 741. ivmiiage v. Walker, i^.^ ids V. Aherayron Soc, 1 ^^ »■ J As to Friendly Societies, m [Friendly Society, a5Ch.D.33U Building Societies, see >«!^ I, notes (o) and ((()• . Isec Midland UoiniHu E<«\ Lsoc, dDeG.J.^S-j ling S. C, 10 Jur. N- "• «>> [am Industrial Co-opcrati':' . Tir N. S. 983 ; Rothcrhdk. • I Beav. 57 ; Foumin'-^ cm. See Fountain's ccue, 1 '1 |. 553. L. C. as to UaH ft of debts contracted before tel In. ^^ Iflf lUj 918 APPENDIX NO. in. No. III. BENEFIT BUILDING SOCIETIES. Benefit Build- ing Societies. Acts now in force. Objects of such societies. Appendix III. Benefit Building Societies are associations of a special kind, formed and regulated under particular acts of Parliament for particular piirposi-s and are distinct as well from joint-stock companies and common law partnerships (a), as from friendly industrial and provident societies (6). The acts now in force are the principal act of 1874, 37 & 38 Via c. 42, together with the amending acts, i>H Vict. c. 9, 40 & 41 Vict. c. 63, and 47 & 48 Vict. c. 41 (c). The object of these societies is defined by the principal act (37 k 3^ Vict. c. 42) to be the raising by subscriptions of the memb(!rs a stock or fund for making advances to members out of the funds of the society upon mortgage security (§ 13), and they may be either terminating or permanent (§§ 1, 3, 5). There is no limit to the number of nitmkr< (§ 13) (d) ; and infants may be mendiers, but cannot vote or hold oS.e while under age (§ 37). Formation of The society is formed by receiving a certificate (e) of incorporation froti societies. the registrar of friendly societies (/), and when registered it k-coiuij i body corporate by its registered name, having perpetual succession anii j common seal (§ 9), with power to hold land with right of I'oreclosurr (§ 13) and to purchase or lease buildings for its business purposes {^T,. The liability of the members is limited (§ 14) ( i 39 Vict. c. 60 (§ 10). (g) Brownlie r. Rusiell, 8 App. l> 235 ; Doncastcr Permanent B. Sue. "' Eq. 158. (J if BENEFIT BUILDING SOCIETIES. 919 CIETIES. iut it seems that there must bei; r ; see § 17, which requires kke tion a copy of the rules n U' by three intending members an: •etary. s to the form of the certir.jt;. hile to 40 & 41 Vict. c. 6:!. The Court cannot declare t'. ,te of incorporation voM on tte that it has been obtained irrt::'i- Hm^er v. Giles, 18 Ch. D. Hi ;h respect to the registrar, 3; J c. 60 (§ 10). Iroionlic t. Rustelt, 8 App." hncaster Permantnt B. ^V.. „f such society being delivered to and regi.stered by the registrar entitled Aitendix HI. til a certificate of regi.stration ; provided the api)lication to the registrar is iiuide liy authority of a general meeting of the society (g)^ 10, II, 12). Persona intending to e.stablish a society after the date of the act N:iv. 2, 1874) are entitled to a certilicate of registration on transmitting til the registrar two copies of the rules agreed on signed by three such iiii-ons ; pnivided such rules contain all the provisions .set out in J^ It) of til, act luul conform to the act, and thi; proposed name is not iilentical or iiiiiilarto tliat of a subsisting society (S 17). Dii llif incorporation of the society all rights of action and other rights ,iiiil interests in real and personal estate belonging to or held in trust for ilic society vest in it (h). Any society registered under the jjrincipal act is empowered to amal;,'a- Amalgamation mate with a similar society upon sucii terms a.s may be agreed upon (J^ 33) : of societies. but creditors are n(jt to be prejudiced. Notice of such amalgamation is j to lie sent to the registrar and registered by him, and such registration is I tii ojierate as an effectual conveyance (jf the funds and proj)erty of the j "jiiting society to the united society (i). The matters reipured by J^ 16 to be set fortli in the rules of such [ Mcieties, and the provisions of the act relating to such matters are — 1, The name of the society and chief otlice or place of meeting for the Name of I u-iness of the society. society. i 22 of the priiuiiial act enables a society to change its name : and [ i'>k 41 Vict. c. 63, i^ 2, enables a change to ])e made in the chief otlices. iNi'ticeof tlie change is in each case to be given to the regi.strar, who is to jrigi-lir the change, and give a certificate of registration : see the form :ivtn in the schedule to the last mentioned act i Tlie manner in which the stock or funds of the society are to be Funds of the [r,ti-i(l, the terms upon whicii )iaid-up shares (if any) are to be issued and society. iilMii!, and wluther preferential shares (L) are to be issued, and if so I within what limits, if any ; and whether the society intends to avail lii-ilf ol'tlie borrowing powers contained in the act, and if so withm what mils, nut exceeding the limits pre.senteil by the act. The powtr to borrow is given by ^15 of the act (/), sub-sect. .5 of Borrowing |viiiih rei|iiiivs 5)?) 14 and lb of the act to be printed or written on all P^^^'*'^' irities j^'iven fur auj deposit or loan by a society (vi). If a society [Inows without jiower, or exceeds its borrowing power, the society in In t liinind (/i; ; but by § 43 tlie directors or committee of management of Itlii Miciety are to be per-sniially liable for the amount so received in ItXi i-Si (o). 3; * 38 Vict. c. 42, SS 27 & 28. |tri'l W & 41 Vict. c. 6:!, §§ 3 & 4. 1; 40 & 41 Vict. c. ()3, § r>. '••> See, ,%s to [)rcference shares, |J/«mii;v. Sntt, 9 Aiiji. Ca. 519. .*ee, aji to the power of borrowing IllArtfroiii the act, £.e parte WiUluiisim, IMi, .:i09; Blackburn Beiiifit liaihtin;/ M V. Vuntiffi Bnmh, 22 Oh. D. 61, I-^P1>. Ca, sr.it. 29 Ch. D. 902 ; Murrai/ .&iH, 9Ai)[.. Ca. SIQ; mil's case, 9 ''O.'y ; Darts' case, 12 Eq. 510; I'lyv. Rwd, .") Ch. 4, anft, p. 189. (w) This is, however, merely direc- tory, and the security will be valid, Jfairlcins' case, 23 Ch. D. 452. (/() /ix jKirle Watson, 21 Q. 1!. D. 3(11 ; Bliickliurn DtmjU Buildimj Sue. V. Cunli^'e Itruuks, uhi supra ; Chapleo V. Urunswkk Soc, Q. 1!. D. t>9(), and ante, p. 189. See, as to the right to recover from the society any money spent in paying the societies" debt.s, unti , pp. 189 d «rq., and 2'it) ct se.q. (o) See, as to this section. Looker v. Wrigley, 9 t^. I!. D. 397. As to the T '"t •• "■ 920 APPENDIX NO. HI. Al'PINMX III. Application and investment of funds. Withdrawal of shares. Mortgages of such societies. Alteration of rules. 3. The purposes to which the funds of the society are to be appliti] and the manner in which they are to be invested (jj). §§25 and 26 of the principal act deal with the manner of Invctin" the .surplus funds of a society and the transference of such invistmpnt-. 4. The terms upon which shares may he withdrawn ami iij)()ii wii;,li mortgages m.ay he redeemed ('/). a. Ah to u'ithdraiml of shares. — Tlic right of a meinlicr to mth.lraw and the terms upon which he may do so depend upon tlic cnntra'tti,!- found in the rules (r). The right of withdrawal in the case of numlvp who have given mortgages to the society, is intimately connected wii their right to redeem their mortgages, which depends in each case on tb; tenns of the mortgage and on the rules (s). b. As to the mortgages of a society. — Mortgages are excepted fr.im tte I general exemption from stamp duty in respect of instruments requirnl or authorised by the act or rules of the .society given by g 4 1 of the piiiiq^i! ( act (<). §42 enacts that a receipt endor.sed on any mortgage shall It i sufficient discharge without reconveyance (?(), but the act allows a rea- [ veyance to be made (.r). As to the terms on which a mortgage can be redeenu'd see the 'a- collected in note (.■.■). 5. The manner of altering and rescinding the rules of the society, mi I of making additional rules. § 1 8 provides for the way in which the rules may be altered {y]. A!! | rules must be registered by the registrar and a copy of them mutt [■ supplied by the .society to any person on demand on payment of a sjnj liability of directors apart from the act, see Richardson v. Williamson, L. R. 6 Q. 1!. 276, and Chapleo v. Bi-unsicick Soc, 6 Q. B. D. 606, and ante, p. 189. {p) See, as to the power to invest in land under the earlier acts. Mullock v. Jenkins, 14 Heav. 633 ; Guiness v. Harrison, 26 Beav. 435 ; lie Kent B. B. Soc, 1 Dr. &Sm. 417. (2) See, on this subject, Fleming/ v. Self, 3 De G. M. & G. 997, Kay, 518 ; Smith V. Pakimjton, 1 De G. F. & J. 120 ; Archer v. Harrison, 7 De Q. M. & G. 404 ; Maltcrson v. Elderfiehl, 4 Cli. 207. (r) Sec ante, pp. 523, 872; Auhl v. Glasgow Wo7-king Men's Building Soc, 12 App. Ca. 197 ; Broxoulic v. Russell, 8 App. Ca, 235 ; Walton v. Edge, 10 App. Ca. 33 ; Tosh v. North British Building Soc, 11 App. Ca. 489; Walker v. Oeneral Mutual Building Soc, 36 Ch. D. 780. (s) The leading cases on this subject are Fleming v. Self, 3 De G. M. & G. 997 ; Archer v. Harrison, 7 ib. 404 ; Smith V. Pilkington, 1 De Q. F. & J. 120 ; Matterson v. Elderfidd, i (i 207 ; Farmer v. Smith, 4 H. i.V. li);| Hundley v. Farmer, 29 lieav. ij; Sparrow v. Farmer, 26 ib. 511. (<) See, under the earlier i:; Williams v. Harjiuard. 22 lieav. 2*!;| Thorn V. Croft, 3 Eq. 19.5, itij decided that mortgages did not rrp.?| a stamp. This is now altered by ]:)i| 34 Vict. c. 97, § 112. (u) As to the effect of a stitii!;r| receipt, see Pease v. Jaclwn, i Cil 576 ; Fourth City Mutual BtmlEAi ing Society v. Williams, 1 1 CIi. D. Ui;| Robinson v. Trevor, 12 q. 1!. D. m Sangster v. Cochrane, 28 Ch. D. iJi| Carlisle Banking Co, v. TliompM:.; 399. For the form of the reccift,^ the schedule to the act of 1S74. (.r) As to the effect of a reconvovrtj as distinguislied from a receitt, Carlisle Banking Co. v. Thompii'i Ch. D. 399. (y) As to the form of a certii.'w alteration, see 40 & 41 Vic;. schedule. 1^1 BENEFIT BUILDING SOCIETIES. 921 B society are to be applipl, ted (jj). itli the manner of inw-tin; ence of such invi-stineiit-. withdrawn and upon \\\il t of a nienilicr to witlvli'W end upon the contra'.t Im'- iwal in the case of mcniKr- is intimately connected wii depends in each case on tl- t"agi'S are excepted from ;':.;• i:t of instruments xc(\mA <', ■,'iven hy § 41 of tlic priik;;; I d on any niovtgiij^e ?halllv. !), but the act allov> art.:.- an be redeemed ?ce tlu''?,- 1" the rules of the society, eI I I rules may be altered (i/;, 111 and a copy of them mun '■ I demand on payment of asm | Matterson v. ElderfieM, < ''- I Fanner v. Smith, i H. &N'. !5i; dley V. Farmer, 29 Bcav. Si;; •ow V. Fanner, 26 ib. 511. See, under the earlier ;•.-, iams V. Ilayward, 22 Beav. ::. V. Croft, 3 Eq. 193, ^ti| nl that mortgages diJ m i'. nip. This is now altered by !;i| let. c. 97, § 112. As to the elTect of a suk-?| pt, see Pease v. Jnckm, i uj Fourth at;/ Mutual B'lK.'ti''- Society V. WHIiams,\\^\^.^'-^'- ■■uxon V. Trevor, 12 q. H. D. & Idcr V. Cochrane, 28 Ch. D. :': sle Bankiwj Co. v. Tlmp"--- For the form of the recei[V icheilule to the act of 1S74. As to the effect of a rcconvojtt] distinguished from a reccitt. ^idc Banking Co. v. n»mjm: D. 399. , As to the form of a certin» •ation, see 40 & 41 Yici. c idule. not exceeding Is. (§ 17). By § 21 the rules arc made to bind all iiierahers and officers of the society, and all persons claiming on account nf a member or under the rules (^). A certified copy is prinu) fucic ividencc, § 20. (i. The manner of appointing, remunerating and removing the board of /lirectors or committee of management, auditors, and otlier otficei's. See generally as to this, avtc, p. 298 et seq. 7, The manner of calling general and special meetings of the members. See generally as to this, ante, p. 303 et .•9 Snc. V. Richards, 39 Cli. D. 372 ; IWw V, General Mutual Building fr'f., 36 ib. 777 ; Thompson v. Planet Mding Soc, 15 Eq. 332. See, also, I the esses on other acts collected, ante, h 916, note (d). {d) See, as to this, Western Suburban Building Soc. v. Martin, 17 Q. B. D. 609. The enactment in the text has altered the law laid down in some pre- vious cases relating to mortgages, viz., Municipal Permanent, etc., (Soc. v. Kent, 9 App. Ca. 260 ; Hack v. London Build. Soc, 23 Oh. D. 103 ; Wright v. Monarch, ((•(.•., Soc, 5 Cii. D. 726, and restores the law as it stood under older enactments, Mulkern v. L>rd, i App. Ca. 182 ; Fleming v. Self, 3 De G. M. & (i. 997. ((?) For the form of the security to be given, sec the schedule to the act of 1874. ww^^^ 922 APPENDIX NO. III. Fines and forfeitures. Dissolution. Appendix III. pay over all moneys in their hands. §i^ 29 & 30 contain prnvisiom enabling the directors to deal with the share of a member dying iutestdte, But any person withholding or misapplying money or making false letuni- is liable to a penalty (§§ 31, 43) (/). 1 3. As to the fines and forfeitures to be imposed on nieniliTs of tli>- society (g). 14. The manner in which the society, whether terminating or litr- nianent, shall be terminated or dissolved. § 32 provides that any society imder the act may be terminated or 1-c dissolved — (1.) Upon the happening of any event declared by its rules to be iL' determination of the society. (2.) By dissolution in manner prescribed by its rules. (3.) By dissolution with the ccmsent of three-fourths nf the members h(dding not less than two-thirds of the number of shares in the society. (4.) By winding up either voluntarily or under the sujiervision of tho Court : if the Court shall so order on the petition of any luembtt authorised by three-fourths of the members present at a general meetin" of tlie society or on the petition of any judgment creditor' for iml less thiUi .£50, but not otlierwise, and ncjtice of the commencement and terniiiiati'jii of every dissolution and winding ujJ must be sent to the registrar, ;mJ registered by him. No reference is made to the Companies acts, but the' winding up iuu Ch. 815 : Be Professional, .tc, B. B. Soc., ib. 856 ; Sundirland Imcml Build. Soc., 21 Q. 15. D. 349, a volun- tary winding up. LIST OF STATUTES. 923 30 contain provisions neinber dying intesUte, ■ or making false retimi- )osed on nienilers of \\k ler terminating or por- may be terminated or U ^ed by its rules to tje tli-.- » rules. -fourths (if the nieiul)et* ' shares in the society. V tho suiiei' vision nf tk- )etition <>{ any memkr sent at a general mei-tiii,' urcilitor for not less lliiUi ncenient and terniinatiuii L-nt til the I'egistwv, ;mJ but the winding up iim-! ing up have been notiic'l nadvanced nicnibtrs, antt, ml Comities B. B. 5of,, i ;. 468 ; AiidmoorJ'm';. '.mbrianB. B. &.,50L.J. Re Queens B. B. $',(., <' Ye Proftssioml, dr., B. B. i6 ; Suiuhrland Unmsa L 21 Q. B. D. 349, a volun- up. No. IV. CHRONOLOGICAL LIST OF STATUTES RELATING TO COMPANIES. Lif^t of statutes. i:i9. The following is a chronological list of (it is believed) all the general Appbndix IV. •Mtutts wliicli have from time to time been ]iassed, governing English " i 'int-stock and other companies, and having any direct bearing on the law il partnership as applied to them (it) : — 1541. 33 Hen. 8, c. 27. This act renders void rules tending to restrict the power of majorities of certain corporate bodies to make grants or to elect governors, &c. G Geo. 1, c. 18. — This is the celebrated " Bubble act." (Sec ante, p. 130). Section 4 was repealed as to the recovery of double damages by 8 Geo. 1, c. 15, § 25; section 12, prohibiting marine insurance by partners, was rejiealed by 5 Geo. 4, c. 114 ; and .sections 18 & 19, prohildting joint-stock companies with transferable shares, were repealed by G (Jeo. 4, c. 91, and sections 2, 3, 12, 18 — 28, were repealed by the Statute law revision act, 1867, 30 & 31 Vict. e. 59. 8 Geo. 1, c. 15. — Section 25 repealed so much of section 4 of 6 Geo. 1, c. 18, as gave a right to recover double damages. Repealed (excei)t i^ 25) by the Statute law revision act, 1867, 30 & 31 Vict. c. 5!). ' " Geo. 3, c. 48. — The object of this act w-as to ju-event the multi- plication of votes by splitting stock and distributing shares, and to prevent the declaration of dividends e.\cept half yearly. The act only applies to certain companies formed before the act came into operation. The mamifacture of votes in the way forbidden by this act is not illegal where the act itself does not aj)ply. See ante, jip. 309 and 4 05. 28 Geo. 3, c. 53.— Section 2 (repealed by (i & 7 Wm. 4, c. 109) prohibited partnershiiis of coal merchants. Repealed by the Statute law revision act, 1861, 24 & 25 Vict. c. 101. 39 & 40 Geo. 3, c. 28. — Section 15 prohibited banking partner- ships of more than six persons ; but the act was, in this respect, repealed by 7 Geo. 4, c. 46. Sections 1 — 12, and part of § 13, were repealed by the in) See antt, p, 2, for a sketch of the are not collected in this list, although one I lis'.oryol compauies. The acts relating or two of them are noticed. '.(Friendly Societies and Buildin« Societies i;2i, i:66. iHiij. 924 APPENDIX NO. IV. Appendix IV. List of statutes. Stfttiite Inw rcviaion act, 1871, 34 & .35 Vict, c, UG and! section 17 was repealed l>y the Statute law rcv'i.'iion act.1 1887, 50 & 51 Vict. c. 59. 1824. 5 Geo. 4, c. 114.— This act repeiiM 6 Geo. 1, c. 18, S^ 2. Repealed liy the .Statuti; law revision act, 18"3, 3(j 1^37,; Vict. c. 91. ' ' * 1825. 6 Geo. 4, c. itl. — This repealed G Geo. 1, c. 18, s;,^ 18 &, 19. Section 2 (repealed by 7 Wni. 4 & 1 Vict. c. 7,3) powered the Crown, in chartei-s of incori)oratinn, tn privid^-- that the members of the incorporated body should bi; imli, vidually liable for its debts. Repealed by the Statute law rev-ision act, 1873, 3G ^ 37 Vict. c. 91. 1826. 7 Geo. 4, c. 46.— Repealed 39 & 40 Geo. 3, c. 28, ^ 15. Provided for the establishment of joint-stock biinkin^' i ;in. ponies with public officers, by whom they could .sue an 1 be sued. Amended by 1 & 2 Vict. c. 96, and 3 & 4 Vict. c. lUj and a.s to the issue of notes, &c., by bankers, by 3 & 4 Wm. 4, c. 83 ; ib. c. 98 ; 4 & 5 Vict.* c. .50 ; 7 & 8 Vict, c, 32} 8 & 9 Vict. c. 76. Repealed, a.s to companies formed since May, 1844, bv 74 8 Vict. c. 113 ; and an to companies formed liefore tbattinU^ but registered under the acts of 1856 and 1857, by 20 & 21 Vict. c. 49. Still in force as to companies formed before May, 18 and not registered under the acts of 185C — 8 or 1862. 1833. 3 & 4 Wm. 4, c. 83. — An act to compel banks issuing pronii notes, payable to bearer on demand, to make rcturn.s of thi notes in circulation, and to authorise banks to i.ssuc nol payable in London for less than 50/. See too 3 c^ 4 Wm. 4, c. 98 ; 4 & 5 Vict. c. 50 ; / & Vict. c. 32 ; 8 & 9 Vict. c. 76. Repealed as to §§ 1 and 3 by 37 & 38 Vict. c. 35. 1833. 3 & 4 Wm. 4, c. 98.— Relates to the issue of notes, &c bankers. See the note on the last act. Repealed as to §§ 5, 9, to 1 3, and 1 5 by 37 & 38 Vict, > Section 7 repealed by the Statute law revision act, 1 3i 24 & 25 Vict. c. 101. 1834. 4 & 5 Wm. 4, c. 94.— Authorised the Crown, by letters pati to empower companies to sue and be sued by their princi| officers. Repealed by 7 Wm. 4 & 1 Vict. c. 73. 1836. 6 & 7 Wm. 4, c. 109.— Repealed 28 Geo. 3, c. 53. Repealed by the Statute law revision act, 1874, 37 & Vict. c. 35. 1837. 7 Wm. 4 & 1 Vict. c. 73. —The Companies letters patent act Repealed 6 Geo. 4, c. 91, |^ 2, and 4 & 5 Wm. 4, c. 9 Empowers the Crown to grant companies the privile;^. suing and lieing sued in the name of an officer of the pany, and to limit the liability of the shareholders to creilil Section 1 repealed by the Statute law rension act, 1 37 & 38 Vict. c. 35. Construction of § 29 declared by 47 & 48 Vict. c. 56. LIST OF STATUTES. 925 ion act 1873, 3G&3t & 5 Vict. c. 50 ; ? &1 1:35. m. Allies letters patent ivX nd 4 & 5 Wm. 4, 1)4. companies the pnviU'Se « -, of an officer of tlie cM^ heslmrelioWerstocr.iJ« wte law re\-ision act, IW 0. 1 & 2 "Vict. c. 10. — This act resembled the 4 & 5 Vict. c. 14, but Appksdix IV. applied only to companies formed before the then Session of . . , statutes Parliament. Repealed by the Statute law revision act, 1861, 24 & 23 Vict. c. 101. 1J3S, 1 & 2 Vict. c. 96. — Amended 7 Geo. 4, c. 46. Continued by 2 & .3 Vict. c. 68 : and 3 & 4 Vict. c. 111. Made peri^etual by 5 & 6 Vict. c. 85. 1 1113J, 1 & 2 Vict. c. 110. — Sections 14 and 15 rendered .shares of debtors, held in public comi)anies, availal)le for the payment of judgment creditors, by means of cliarging orders. Amended by 3 & 4 Vict. c. 82. Though various parts of 7 & 8 Vict. c. 110 have been repealed, §§14 and 15 are still in force. See rules of the Supreme Court, 1883, 0. XLVI. 2 & 3 Vict. c. 68. — Continued 1 & 2 Vict. c. 96 ; as to which see above. Repealed by the Statute law revision act, 1874 (No. 2), 37 & 38 Vict. c. !)6. 3 & 4 Vict. c. 82. — Amended 1 & 2 Vict. c. 110, §§ 14 & 15. 3& 4 Vict. c. 111. — Continued 1 & 2 Vict. c. 96 ; and further amended 7 Geo. 4, c. 4C. Section 1 is repealed, and section 2 is partly repealed by the Statute law revision act, 1874 (No. 2), 37 & 38 Vict, c. 96. 4 & 5 Vict. c. 14. — Authorises spuitual persons to hold shares in companies. Sections 2 & 3 repealed by 37 & 38 Vict. c. 96. 4 & 5 Vict. c. 50. — Relates to the issue of notes by bankers. See observations on 3 & 4 Wm. 4, c. 83. Repealed by 37 & 38 Vict. c. 96. 5 Viet. c. 5, § 4. — Authorises the restraining of transfers of shares. 5 & 6 Vict. c. 85. — Perpetuated I & 2 Vict. c. 96. Repealed by 37 & 38 Vict. c. 96. 7 & 8 Vict, c ^ 10. — Commonly called the Joint-stock companies registration act of 1844. The first act which provided for incorporation by mere registration. Amended by 10 & 11 Vict. c. 78 ; 18 & 19 Vict. c. 133. Repealed by the acts of 1856-8, and by the Companies act, 1862. :il. 7 & 8 Vict. c. 111. — Provided for the winding up of companies in bankruptcy. Amended by 11 & 12 Vict. c. 45, and 20 & 21 Vict, c. 78. Repealed by the Companies act, 1862. 'ii 7 &8 Vict. c. 113. — An act to regulate Joint-stock banks in England. Repealed 7 Geo. 4, c. 46, as regards companies formed 6ince May, 1884. Extended to Scotland and Ireland by 9 & 10 Vict. c. 75. Amended by 19 & 20 Vict. c. 100. Repealed by 20 & 21 Vict. c. 49, and by the Companies act, 1862. IsJl. 1 1:41, !;i4. i If AlTBMDIX IV. 1845. Lilt of atatutes. 1846. 1846. 1847. 1848. 1849. 1850. 1852. 1855. 1856. APPENDIX NO. IV. 8 & 9 Vict. c. 16. — An act for consolidating in one act certain provisions usually inserted in actc, with respect to the con- stitution of companies incorporated for carrying on undif takings of a public nature. The Companies clauses consolidation act. Amended by 26 & 27 Vict. c. 118 ; 30 & 31 Vict, c. 12r 32 & 33 Vict. c. 48 ; and 51 & 62 Vict. c. 48. Sections 152 and 164 arc partially, and section 16j i) wholly, repealed by the Statute law revision act, 1875 J^i & 39 Vict. c. 66). Sections 147, 165, and 159 arc partially, and sections l-i«, 149, 153, and 157, and Schedule G. are wholly, repealtjiv 47 & 48 Vict. c. 43. The Lands clauses consolidation act (8 & 9 Vict. o. h and the Railways clauses consolidation act (8 & 9 Vict. c. iO , do not form part of the law of partnership. 9 & 10 Vict. c. 28. — An act to facilitate the dissolution of an,.;:. railway companies. This act (Lord Dalhousie'.-*) only npidied to railway e .;:■ panics projected before July, 1846, and never incorporuttilii act of parliament. Repealed by the Companies act, 1862. 9 & 10 Vict. c. 75.— Extended 7 & 8 Vict. c. 113, to Scutlai.i and Ireland. Repealed by the Companies act, 1862. 10 & 11 Vict. c. 78.— Amended 7 & 8 Vict. c. 110. Repealed by the Companies act, 1862. 11 & 12 Vict. c. 45.— Amended 7 & 8 Vict. c. Ill, Amended by 12 & 13 Vict. c. 108 ; and by 20 & 21 Vi.!. c. 78. Repealed by the Companies act, 1862. This act and the next are usually called the Winding-up acts of 1848-9. 12 & 13 Vict. c. 108. — Amended the last act. Repealed by the Companies act, 1862. 13 & 14 Vict. c. 83. — Facilitates the abandonment of railwavs and the dissolution of railway companies, empowered to make railways by acts passed before August, 1850. Amended and extended by 30 & 31 Vict, c, 127; and ii & 33 Vict. c. 114. Section 34 is partially, and section 40 is wholly, repeals! by the Statute law revision act, 1875, 38 & 39 Vict, c. 66. 15 & 16 Vict. c. 31. — Industrial and provident societies act, ISai Repealed by 25 & 26 Vict, c. 87. 18 & 19 Vict. c. 133. — The first limited liability act. Repealed by 19 & 20 Vict. c. 47. 19 & 20 Vict. c. 47. — The Joint-stock companies act, 1856. Repealed, as to all companies registered under it, 7 ^^ ~ Vict. cc. 110 and 111 ; 11 & 12 Vict. c. 45 ; 12 & 13 Vi.t. c. 108; 18 & 19 Vict. c. 1?3. Explained, as to insurance companies, l;y ?0 & 21 ^i- c. 80. Extended to banking companies by 20 & 21 Vict, c, 49. LIST OF STATUTES. 987 idating in one act certain n, with respect to tbe cu;.- cil for curry in|^ on umitr- at ion act. 118 ; 30&31 Vict. CUT; 2 Vict. c. 48. rtially, and section 16 J ii law revision act, 1875 3< > partially, ami sections U\ ; G. are wholly, repeaWliy m act (8 & 9 Vict. o. H, utionact (8 & 9 Vict. c. 20, rtnership. tate the dissolution of certain nly applied to railway c-ji- 6, and never incorporateillv it, 1862. 8 Vict. c. 113, to Scotbl it, 1862. 8 Vict. c. 110. ct, 1862. 8 Vict. c. 111. 108 ; and by i20 &2lVi-, ;t, 1862. ually called the AVindm-uf |e last act. it, 1862. e abandonment of railway-. mpanies, empowered to make iigust, isno. &31 Vict. c. 127; ami 32 jjction 40 is wholly, repeak^l 11875, 38 & 39 Vict. c. 60. 1 provident .societies act, ISoi 87. kited liability act. H7. |k companies act, 1856. _ registered under it, 7 * ' Vict. c. 45; 12&13Vft Impanies, by ?0 & 21 Vi.t L by 20 & 21 Vict. c. 49. 1856. 1S57. 1S57. List of statutes. 1357. 1S57 1857 1^58. 1?5S, isei. 1862. 1862, Amended by 20 & 21 Vict. c. 14 ; and 21 & 22 Vict. c. 60. AppRwmx IV. Repealed by the Companies act, 1862. 19 & 20 Vict. c. 100.— Amended 7 & 8 Vict. c. 113, now repealed. 20 & 21 Vict. c. 14. — Amended 19 & 20 Vict. c. 47, a.s to which see above. Repealed by the Companies act, 1862. 20& 21 Vict, c. 49. — The Joint-stock banking companies act, 1857. Extended 19 & 20 Vict. c. 47, to banking companie.>(. Repealed as to companies registered under it, 7 Geo. 4, c. 46 ; 7 & 8 Vict. cc. Ill, 113 ; 1 1 & 12 Vict. c. 45 ; 12 & 13 Vict. c. 108. Amended by 21 & 22 Vict. cc. 60, 01. Repealed by the Companies act, 1862. 20 & 21 Vict. c. 54. — An act to make better provision for the puni.shment of frauds committed by trustees, bankers, and otlier persons entrusted with property. Applied to frauds by directors of companies. Repealed by 24 & 25 Vict. c. 95. 20 & 21 Vict. c. 78. — Amended the act 7 & 8 Vict. c. Ill, and also tlie " Joint-.stock companies winding-up acts, 1848 and 1849." Repealed by the Companies act, 1862. 20 & il Vict. c. 80.— E.xplained 19 & 20 Vict. c. 47, as regards insurance companies. Repealed by Companies act, 1862. i!l & 22 Vict. c. 60. — Amended the Joint-stock companies acts, 1856 and 1857, and the Joint-stock banking companies act, 1857. Repealed by the Companies act, 1862. 21 & 22 Vict. c. 91. — Enabled Joint-stock banking companies to be formed on the principle of limited liability. Amended 20 & 21 Vict. c. 49. Repealed by the Companies act, 1862. 24 & 25 Vict. c. 96. The Larceny act, applies to frauds by directors, &c. Sections 105 and 112 are wholly, and sections 107, 110, and 111, are partially repealed by 47 & 48 Vict. c. 43, but ^!^ 81 — 86 which relate to fraudulent directors are unaltered. 25 & 26 Vict. c. 87. — The Industrial and provident societies act, 1862. Amended by 30 & 31 Vict. c. 117 ; and 34 & 35 Vict. c. 80. Repealed by 39 & 40 Vict. c. 45. 25 & 26 Vict. c. 89.— The Companies act, 1862. Amended by 30 & 31 Vict. cc. 47 and 131 ; 32 & 33 Vict. c. 19, §38 ; 33 & 34 Vict. c. 104 ; 40 & 41 Vict, c. 26 ; 42 & 43 Vict. c. 76 ; 43 Vict. c. 19 ; 46 & 47 Vict, c. 28, which, however, has been repealed except as to Ireland by 51 & 52 Vict. c. 62 : and as to Scotch Ihiuidations, by 49 & 50 Vict. c. 23. Repealed as to ^§ 35 (in part) and 170, by 44 & 45 Vict. c. 59 ; as to §§ 126 (in part), 206 (4), 207, 211 and 212, by the Statute law revision act, 1875, 38 & 39 Vict. c. 66. 928 APPENDIX NO. IV. AfPEHUIX IV. List of itatutci. 1803. 1804. 1806. 1805. 1807. 1868. 1869. 26 & 27 Vict. c. 118.— Amended 8 & 9 Vict. c. 10. Aiueuded by 30 & 31 Vict. c. 127 ; aiid 32 & .IS Vict c. 48. Hections 21 and 22 are repealed in part by the Stutiite law revision act, 1875, 38 & 39 Vict. c. 00. 27 & 28 Vict. c. 19. — The Companies seals act. 28 & 29 Vict. c. 78. — Mortgage debenture act, 1865. Amended by 33 & 34 Vict. c. 20. 28 & 29 Vict. c. 80. — Law of partnership amendment act. 30 & 31 Vict. c. 29. — Makes contracts for the sale (jf Hlmres in Joint-stock banking companies void unless the uumbers of the shares are 8j)ecitied (Leeniun's act). 30 & 31 Vict. c. 47. — Repealed § 114 of the ConipanitM act 1862. 30 & 31 Vict. c. 117. — Amended the Industrial and providwit societies acts. Amended by 34 & 35 Vict. c. 80. Uepealed by 39 & 40 Vict. c. 45. 30 & 31 Vict. c. 127. — Relates to railway companies. IlLstrkts executions against their rolling stock and plant. Knablw binding schemes of arrangement to be made. Amends 13 & 14 Vict. c. 83, as to the abunduunicnt ui railways, &c. Amended by 32 & 33 Vict. c. 114. Section 37 repealed by the Statute law revision act, 1875; 38 & 39 Vict. c. 66. The temporary i)rotection given to rolling stock ami pLmt by this act was made jjoipetual by 38 & 39 Vict. c. ;31. 30 & 31 Vict. c. 131. — The Companies act, 1807, aiiuiuls tk Comjjanies act, 1802. Amended by 40 & 41 Vict. c. 20, and 46 & 47 Vict.c. 28. Section 20 is repealed in j)art by the Statu' law revision and civil procedure act, 1881 ; 44 & 45 Vict. c. .'39. 31 & 32 Vict. c. 08. — An act to facilitate liiiuidutiou in certain cases of bankruj)tcy, arrangement, and windin;^' up. Thi.s act applies only to lii^uidations, &c., pending \vli.!i it passed. 32 & 33 Vict. c. 19. — The Stannaries act, 1809. Amended by the Stannaries act, 1887 ; 50 & 51 Vict.c. 43. Section 39 is repealed in part by tlu; Statute law rcviMun act, 1883 ; 46 & 47 Vict. c. 39 1 tli OompuuK > 'lausc.^ act, 1^63. I he abandoiiK lit of railway.-. 83 ; and 30 A I Vict. c. 127. ■ i by the Statul ,ivv revision att. :<9. 32 & 33 Vict, c, 32 48. — Amen & 33 Vict. c. 114.— 1' ' Amends 13 & 14 Section 10 is re] 1883 ; 46 & 47 Vict. 1870. 33 & 34 Vict. c. 20. — Mortgage lebenture (ameadiiieiit; ail, 1870. Amends 28 & 29 Vict. c. 78. 33 & 34 Vict. c. 61. — The Life assurance companies act, 187 Amended by 34 & 35 Vict. c. 58 ; 35 & 3G Vict. c. 4i and 38 & 39 Vict. c. 60, §§ 4, 28, and 30. Section 8 is repealed in part by the Statute law revi^iii] act, 1883 ; 46 & 47 Vict. c. 39. I.IHT OK STATUTES. U2!) \rLct. c. 10. 7 ; and 32 & n Vicl, l>art by the SUtvitu law f)(}. ■U.U act. ire act, 1865. ip aim;mlm,l lit). 4 of the Cmniiivuifs .i>:t, Industrial and \nv\hUA SO. 5. [way conipauieH. Kestr\cts ,l„ck and idanl. KnaUd u he made. aa to the ahanduunicnt ui 114. . ^' lute law revision act, 18i5; ■n to rolling stock and vlant jy 38 & 3t) Vict. c. 31 nicB act, 1B07, aiiu'iRls tk 26,and46&47 Vict.c.-iS. by the Statut' law revision 44 & 45 Vict. c. 5S). cilitate li^iuidaliou in certain It, and windin- up. nidations, &c., iitiuun, L act, 1869. It 1887;50&5lV'^t.c43, [t by the Statute law rev- ,, ,ac~.lau..-ad,l«63. , ,l.ando.H."t--l ™1^^7;: ,. aud30>v , Vict. c. 12,. [theStatui .vv revision aa, I .lebenture (ameudmci.t; A B9. 33 & 34 Vict. c. 104. — Amends the Companies act, 1862, ho fur Appenmx IV. (w rcL'urdH compromises and arranL'ements lietwecn creditors 7- / , ". ." ~ ,,11,,.,..., , ., ..... Lmt uf «tiitiito». und sliarelioulers ot Joint-stock and uthur companies lu Ik^ui- datiiin. 1P7I. 34 & 35 Vict. c. 08. — Amends the Life ivsHurance companies act, 1870. Amended liy 3r) & 36 Vict. c. 41. 34 & ST) Vict. c. 80. — Tile Industrial and proviilent societies act, 1871. Amends 25 & 20 Vict. c. 87 ; and 30 Si, 31 Vict. c. 117. Uei)ealed hy 39 & 40 Vid. e. 45. 1872. 35 & 30 Vict, v., 41. — Amends the Lifo assurance companies acts, 1H70-1871. 1874. 37 & 38 Vict. c. 42. — lluilding societies act, 1874. Section 32, claii.si! 4, jirovides for the \viiidin>» uj> of a society j^ovenied by that act voluntarily, under the siipiT- vision of the Court or by the Court. Amended by 38 & 3t) Vict. c. i) ; 38 & 39 Vict. c. 00, § 10 ; 40 & 41 Vict. c. 03 ; and 47 & 48 Vict. c. 41. Sections 27 and 44 and the schedule are repealed in jmrt by the Statute law revision act, 1883 ; 40 & 47 Vict. c. 39. 1875. 38 & 39 Vict. c. CO. — Friendly societies act, 1875. Amends 33 & 34 Vict. c. 01 ; and 37 & 38 Vict. c. 42, S 3. 38 & 39 Vict. c. 31 made § 4 of 30 & 31 \ict. c. 127 i)erpetual. 39 & 40 Vict. c. 45. — The Industrial and inovideiit societies act, 1870. Repeals 25 & 26 Vict. c. 87 ; 30 & 31 Vict. c. 117 ; 34 & 35 Vict. c. 80. Amended by 43 Vict. c. 14, t; 8 ; and 46 & 47 Vict. c. 47. Section 4 and schedule 1 rejiealed by Statute law revision act, 1883 ; 46 & 47 Vict. c. 39 ; and section 19 repealed in part as to England by 47 & 48 Vict. c. 43, J5 4. 1677. 40 & 41 Vict. c. 26.— The Companies act, 1877. Amends the Ctjnii>aiiies acts, 1862 and 1867. Is amended by 42 & 43 Vict. c. 76 ; and 43 Vict. c. 19. |1''79. 42 &43 Vict. c. 76. — The Companies act, 1879. Ucpeals S 182 of 25 & 2(5 Vict. c. 89. Amends 40 & 41 Vict. c. 20. 1!>80. 43 Vict. c. 19. — The Companies act, 1880. Amends 25 & 26 Vict. c. 89 ; and 40 & 41 Vict. c. 20. I1SS3. 46 & 47 Vict. c. 28.— (Jompanies act, 1883. Amend.s 25 & 20 Vict. c. 89. Reiicaled, except as to Ireland, by 51 & 52 Vict. c. 62. 46 & 47 Vict. c. 30. — The Companies (colonial registers) act. 46 & 47 Vict. c. 47.— Amends 39 & 40 Vict. c. 45. I1S64, 47 & 48 Vict. c. 41. — Building societies. Amends 37 cS: 38 Vict. c. 42. 47 & 48 Vict. c. 56. — Chartered companies act, 1884. Declares construction of § 29 of 7 Will. 4 & 1 Vict. c. 73. . 50 & 51 Vict. c. 43.— Stannaries act, 1887. Amends 32 & 33 Vict. c. 19. I.e. 8 wfmfimimmr 930 Appendix IV. List of statutes. APPENDIX NO. IV. 50 & 51 Vict. c. 47. — Trustee .savings bank act, 1887. Section .3 declares that a trustee savings l)ank is an un- registeted association whicli maj' be wound up under the pro- visions of the Companies acts. 1888. 51 Vict. c. 8. — Customs and inlo"d revenue act, 1888. Sections 11 — 17 relate to the .-;tamp duties paynble oiitL^ capital of limited companies, and on various dealings \,„i.. l)onds and share certificates. 51 & 52 Vict. c. 48. — Companies clauses consolidation act, 188\ relating to votes by proxy. 51 & 52 Vict. c. 62. — Preferential payments in Baiilvruptcy act, 1888. Repeals the Companies act, 1883 (46 & 17 \'ict. c. 28, except as to Ireland. Note on An examination of the above list will show that in addition to the Com- these acts. panics clauses consolidation act (8 & 9 ^'ict. c. 16, and the acts aniendin,' it), there were, prior to the jiassing of the Companies act, 1862, \m h> than se^•en classes of acts regulating Joint-stock companies. Thest' a.t- were as follows : — 1. 7 Geo. 4, c. 46, and acts amending it ; as to banking companie- established before May, 1844, and not registered under 20 & 21 Vid. c. 49. 2. 7 Wm. 4 & 1 Vict. c. 73, as to companies established by letteiqiatii:i from the Crown. 3. 7 & 8 Vict. c. 110, and acts amending it : as to insurance compani^■^ and such other comiianies, if any, as were registered undiT it, ami nit under 19 & 20 Vict. c. 47. 4. The Windhig-up acts, 7 & 8 Vict. c. 1 1 1 ; 1 1 & 1 2 \kt. c. 4.-| ; li & 13 Vici. c. 108 ; 20 & 21 N'ict. c. 78 ; as to companies nut ivgistiTil under 19 & 20 Vict. c. 47, and not a railway company incuriiuiatttl Iv act of Parliament. 5. The Winding-up act, 13 & 14 Vict. c. 83 : as to railway cniupaiiin incorporated by act of Parliament, and empowered to niakr a raihvay 1 v an act parsed bef.'. . Vugust, 1850. 6. The Joint-.,i;(.clv companies acts of 1856 and 1857; as t(: all j "iu: stock companies registered under them. 7. 'i'lie Joint-stock bunking companies acts of 1857 and 1858 ; as t- banking comp'inies formed since May, 1844, or formed previuusly tliiivtii i and registered under these acts. Of these the 3d, 4th, 6th, and 7th are all repealed by the Conipaiiii act, 1862. The following tabular view of the acts now in firce is appiJil' for facility of reference : — J TABLE OF STATUTES NOW IN FORCE. 081 lank act, 1887. 3 savings liauk is an un- wound up under the pro- enue act, 1888. imp duties pavuble on tli.' (jH various dealings wm iS consolidation act, i8B\ anents in Bankruptcy ac:, 83 (46 & 17 Vict. c. 28, ;liat in addition to the Com- 16, and the acts anieudinj mpanies act, 1 862, nn lu- ck companies. These .lU ; as to banking conipaiiie- eied mider 20 & 21 Vid. established liyletleisimUit : as to insurance couipimir-, tsistered under it, anil n^it 11 & 12 Viet. c. 4.'i; \i companies nut registiTi-l company in«;nri"iratttl liy as to railway conip.iiii'- ,-ered to make a railway 1 v and 1857; as t.. all ]"» of 1857 and 1858;.isi'. formed previously tlieM' jpealed by the Compauin I low in fwree is appeii'Ul PRINCIPAL ACTS NOW IN FORCE. ; Geo. 4, c. 46 : Wni. 4 & 1 Vict. c. 73 1&2 Vict. c. 110 4 i 5 Vict. c. 14 5 Vict. c. 6 S&9Vict. c. 16 i;KU4Vict. c. 83 i4&25Vict. c. 96 Banking Companies (h) Amended \ Companies empowered by \ letters patent to sue and y be sued . . .1 Charging shares by Judge's ) order . . . . j Spiritual persons Eestraining transfers, &c. The Companies clauses con- solidation act Windmg-up act for railwfiy companies incorporated by a special act of Parlia- ment .... Fraudulent directors, &c. See §§ 81 to 86. AMENDING ACTS. 3 & 4 Wm. 4, c. 98. generally l)y ^ 1 & 2 Viet. c. 96 (c). 3 & 4 Vict. c. 111. 2.5 & 26 Vict. c. 89. ^ 7 & 8 Vict. c. 32. as to issue of J 8 & 9 Vict. c. 76. notes, &c., by J 19 & 20 Vict. c. 20. V 37 & 38 Vict. c. 96. Section 29 is construed by 47 & 48 Vict. c. 56. Amended by 3 & 4 Vict. c. 82 ; an)mmcni;enient of this act, for the i)urpose of carrying on any other biL-iiicss that has for its object the ac<[uisition of gain (d) by the company, * iTic references in the margins of the sections are to the corresponding sections I tie repealed Acts. Tlio sections referred to have seldom been incorporated witliout kme alteration of more or less importance. Short title. Oominencenient of act. Definition of insurance com- pany. I'riibibition of jiartnoi'ships ex- ceeding certain numlier, [•20 Vict. c. 47, g 4, and -21 Vict, c. 14, § 3, and c, 49, §13.) ) See §209. ) SeeoHfc, p. 114. llf)Sce District Sannijs Hani; 10 W. R. 138. See «)!<<■, pp. 114, 135. (rf) See 10 Ch. 546, /. See ante, p. 114. i • «"( i. 934 THE COMPANIES ACT, 1862. Ai'PRNDix V. aBsociatlon, or partnership, or by the individual members thereof, units; : it is registered as a company iind(!r this act, or is formed in pursnaiKi; of some other act of Parliament, or of letters patent, or is a compiiny m^& wise complying with the re(piisitions of this act in respect uf n'yistrati;;. form an incorporated company, with or without limited liability (i/\ 7. The liability of the memljers of a company formed iukUi' this at; may, according to the memorandum of association, be limited either to tte ] amount, if any, unpaid on the shares respectively held by llieni, or to .-i;rli amount as the members may respectively undertake by tlic inemoraii'laia I of association to contribute to the assets of the comjiany in tlie event i its being wound up. 8. Where a company is formed on the princiide of having tiie liabili.y j of its members limited to the amount unpaid on their shares, hereiiiaht: referred to as a company limited by shares, the memorandum of asioc.v tion shall contain the following things ; (that is to say,) (h). (1.) Tlie name of the proposed company, witli the addition of l!i« word " Limited " as the last wonl in such nanu; (i) : (e) Seep. 114. (/) For Forms, see Schcd. 2. ante, p. 117. {IX V. Memorandum nf a.ssoeiation of a Cdiniiany limited by ''imrantee. Mcmorandnm o£ jussociation of an unlimited com- jiiiny. [20 Vict. c. 47, S 10.1 Stamp, signa- ture, and effect (jf memorandum (if a.s.sociation. f2U Vict. c. 47, ;;§ 7 and 11.] ('.) .*cc Fonns i!. and C. Soiled. 2 ; "111 as to the capitiil, see §14. ') See, as to associations not having ain for their olijcct, 30 &. 31 Vict. ' UU,§23; &rn\aiUc, p. 114. {ill) Form D. in Sclied. 2 ; and sec, :is to capital, § 14. (h) Signature by an agent is sutficieiit, Whitloj Partners, Limitnl, .32 Cli. D. 337. ^mm^^m 986 THE COMPANIES ACT, 18G2. Appendix V. Power of certain companies to alter mcmoran- duni of associa- tion. [20 Vict. c. 47, §§13 ami 37.] Power of com- panies to change name. same e.\tciit a.-* if eacli member luul siibscribetl his iiamt' and atRxeil hk seal thereto, and there were in the niemorandmn contained, du tho part '>f himself, his heirs, executors, and administrators, a covenant to observt ;\11 the conditions of such memorandum, suVyect to the itrovision, of this act (see § 16). 12. Any company limited by sliares may so fiir modify the conditions contained in its memorandum of association, if authorised to du so by u.^ regulations as originally fraiiied, or as altered by special resdlutiou in manner hereinafter mentioned (o), as to increase its capital, by the issue of new shares of such amount as it thinks exjjedient, or to consolidate aiiJ divide its cajntal into shares of larger amount than its existing shares, or to convert its paid-up shares into stock ; but, save as aforesaid, and save as is hereinafter provided in the case of a change of name (^J), no alteratiim shall be made by any company iu the conditions contained iu its meiiiu- randum of association {q). 13. Any company nader this act, wit'i the sanction of a sijucial resolu- tion of the company passed in manner hereinafter mentioned (c), and witli the appro\al of the Board of Trade, testified in writing undi'i ilie hand of one of its secretaries or assistant secretaries, may change its name (sj ; and upon such change being made the registrar shall enter the new name on the register in the place of the former name, and shall issue a certifi- cate of incorporation altered to meet the circumstances of the case ; but no such alteration of name shall affect any rights or obligations of thi- company, or render defective any legal proceedings instituted or to lit instituted by or against the company ; and any legal proceedings may be contimied or commenced against the company by its new name that might have been continued or commenced against the conrpany liy it- former name. Articles of association. Regulations to 1 4. The memorandum of association may, in the case of a company be prescribed by limited by .shares, and shall, in the case of a company limited by guarautt.- articles of aaso- q,. unlimited, be accompanied, wlien registered, by articles of association (f, signed by the subscribers to the memorandum of association, and prescrili- ing such regulations for the company as the subscribers to the niemoranJuiu of association deem expedient ; the articles shall be ex^iressed in seiiarato paragraphs numbered arithmetically : they may adopt all or any of tli; provisions contained in the Table marked A. in the first schedule hereto: they shall, in the case of a company, whether limited by guarantee ti unlimited, that has a capital divided into shares, state the aniomit oi capital with which the company proposes to be registered («), and in tlii ciation. [20 Vict. c. 47, S9.] (o) See §§ 50 and 51. ip) See §§ 13 and 20. {q) The memorandum of a.ssociation may be altered in some other respects, see ante, pp. S34 and 343 ; and 28 & 29 Vict, c 78, § 3, as to mortgage deben- tures ; 30 &, 31 Vict. c. 131, § 9 c« seq., and 40 & 41 Vict. c. 26, 43 Vict. c. 19, and ante, p. 402, as to reduction of capital, and 30 & 31 Vict. c. 131, §§ 21 and 22 a.s to subdivision of sliares, and ante, p. 40."i. See as to altering tbe regulations of the company, §§ 50, 17iJ, and 196 ; and see ante, pp. 334, 343. ()•) See § 51. (s) See, further, as to changing name, § 20, and ayite, p. 112. («) See Forms B. and C. in Scbed. 2. See ante, p. 118. (m) The capital of companies limitei by shares appear.s in the iiiemorandum «' association. See § 8. 862. 25 it 26 VICT. CAP. 89. — part i. constitution, etc. 937 eil his name ami atfixeil minduiu containod, on tlw linistrators, ii i;iivi;iiant to II, sultject to tlie itiovisimis ) far modify tlie conditions f authorised to do »o by iu I by speeial resolution in ise its capital, l)y the isqw idient, or to consolidate and than its existing shares, or ive as aforesaid, and save as • of name (^J). no aUerHtiim ions contained in its miiiiu- sanctiou of a special revjlu- ifter mentioned(c), and witli in writin<; nnder the Imiiii iS, may change its name (s) ; ar shall enter the new name le, and shall issue a certili- cumstances of the case ; bill fii'lits or obligatioirs of thf icedings instituted or to In- any legal proceedings may ipany by its new name tbat against the company liy it- , in the case of a company ompany limited by guaranty; L by articles of association ,'; 1 of association, and iire.cril- bscribers to the niemoramluin lall be expressed in seprate nay adopt all or any of tlr; .in the first schedirlc hordo; her limited by guarantee n shares, state the amount ol be registered ( I'), "H'^l '" '•"■■ , p. 40ri. See as to altering tte Ls of the company, §§ 50, l!iJ, I ; and see ante, pp. 334, 343. be § 51. le, further, as to changing name, Id ante, \i. 112. |c Forms B. and C. in ScLed. 2. _, p. 118. lie capital of companies limtei L appears in the uiemorandm of Ion. See § 8. case of a company, whether limited by guarantee or unlimited, that ha.s ArpExnix V. not a capital divided into shares, state the number of members with which till- company proposes to be registered, for the purpose of enabling the ivoistiar to determine the fees jiayable on registration : in a company limited by guarantee or imlimited, and having a capital divided into iliares, each subscriber shall take one share at the least, and shall write upposite to his name in the memorandum of association the number of iliares he takes. 1."). In tlie ca.se of a company limited by shares, if the memorandum of Application of ;Hsui!iati(in is jrot accompanied by aiticles of association, or in so far as Talde A. the articles do not exclude or modify the regulations contained in the [20 Vict, c. 47, Table marked A. in the first schedule hereto, the last-mentioned regula- S •'•] tinns shall, so far as the same are applicable, Ije deemed to be the regula- iion> of the company in the same manner and to the same extent as if ;lii'y liad been inserted in articles of association, and the articles had been liily rej,'istered. IS. Tlie articles of a.ssociation shall be printed ; they shall bear the same Stamp, siyna- -tamp as if they were contained in a deed, and shall be .signed by each t'|'e, and elTect ■iibscriber in the presence of, and be attested by, one witness at the least, o' articles of ,111(1 such attestation shall be a sufficient attestation in Scotland as well as ' " in England and Ireland; when registered, they shall bind the company !;1^ ,q'° 'i*^,', I' and the members thereof to the same extent as if each member had sub- ■ ' ' - libi'd his name and affixed his seal thereto, and there were in such trticks contained a covenant on the part of himself, his heirs, executoi-s, and administrators to conform to all the regulations contained in such articles, subject to the provisions of this act (x) ; and all moneys payable I'V any member to the company, in pursvumce of the conditions and regu- lations of tlu! coiiipany, or any of such conditions or regulations, shall be kvmeil to be a debt due from such member to the coiupauy, and in En;ilaiid and Ireland to be in the nature of a specialty debt (»/). General provisions. 17. The memorandum of association (?;) and the articles of association, if Kcgistration of niv, .shall be delivered to the registrar of joint-stock companies hereinafter "'O'^ran''"'" "^ .,,,,, . , . ■ , ,,,11 • 1 association and ! tiiiiitioued, who siiall retain and register the same : there shall be paid tci articles of asso- llk' ivgistrav by a company having a ca|)ital divided into shares, in respect elation, with the several matters mentioned in tlie Table nuirked B. in the first f«e.s as iu iit'dule iK'iuto, the several f«es therein speciiied, or such smaller fees tilt Board of Trade may from time to time direct ; and by a company not liaving a caiiital divided into shares, in respect of the several matters men- ^ ^^ , inicJ in the Table marked C. in the first schedule hereto the several fees thiTeiu .sjiecified, or such smaller fees as the Board of Trade may from I time to time direct : all fees paid to the said registrar in jntrsuance of this J act shall be paid into the receipt of her Majesty's exchei^uer, and be I carried to the account of the consolidated fund of the United Kingd(jm of I liieat Britain and Ireland. Table B. or Table C. \->0 Vict. c. 47, /) See as to the nature of the contract leiit«red into by becoming a member, |%v. Positive, .Cc, Ass. Co. 1 Ex. D. |S^; Browne v. La Trinidad, 37 Oh. D. 1 ; |ll*('i/ Bidhr Consols, 38 Oh. D. 42 ; iM-m beep Sea Fishing Co. v. AnseU, 39 Ch. D. 339 ; cade, pp. 147, 8. (y) See § 75. (c) 51 Vict. c. 8, § 11, requires a statement of the nominal capital to be sent to the registrar, and imposes an ad Vidorcm, stamp duty of 2*. per iilOO. 938 THE COMPANIES ACT, 1862. / :/ / API'RNDIX V. Effect of regis- tration. 120 Vict. c. 47, S 13, anil 21 Vict. c. M, § 4. -Copies of menio- randiiin and .articles t() be given to mem- hers. [20 Vict. c. 47, S 27, and 21 Vict. c. 14, §10.] Prohibition against identity of names in companies, [20 Vict. c. 47, §6.] Proliibition against certain companies hold ing land. ,£20 Vict. c. 47, §38.] 1 8. Upon tlie re}^i.strntion of the Jiiemoninduni of association, and of the aiticles of a.ssociation in cases wliere articles of association arc ri'(iuirtj Ijy tliis act or by the desire of the parties to l)e registered, the V(M'i, nuy be continued or commenced against the company by its new name tkii might ha\e been continued or commenced against the coiiipaiiy hv it; former name (c). 21. Xo company formed for the purpose of promoting ait, >tidKf. religion, charity, or any other like abject, not involving the uci|uisitiim gain by the company or by the individual members thereof, shall, witb ;i the sanction of the Board of Trade, hold more than two acres nf liHiJ; but the Board of Trade may, liy licence ((/), under the hand of one of ttir {(i) As to companies not having gain for their object, see § 21, and (ink, p. 1 1 4. (h) See, as to this, p. Ill ; see, also, §192. (c) Sec, further, as to changing name, S 13 ; and see ante, pp. 112, 113, i n. V. Hcyistrai- of Friuidlij Mti'i, L. R. 7 Q. ii. 741. (d) .Sec Form F. in Sclud. 2. )62. I of associatiDn, and of the ■ association arc miuiml e registeretl, tliu rityi>tvav t incorporated, uud in tlit J Uiuiteil : tlie sul>scrilirt-- nth sucli other iierson> u- company, shall thereuiKai the niemoranilum of asso- a fi\nction8 of an iucoii>o- II and a connnon seal witli on the part of thi' memlm- ;he event of the same lidi.. iticate of tlie inciiriioviUi"ii be conclusive evidi'Uce tkt istration have heen comiilii-l tion, having annexed tlieftto warded to every member, at liilling or such les8 sum a- copy"; and if any cumpiUiy memorandum of cis8oei;ili>ii her, in pursuance nf this >t'- r eacli offence ineuv a iitnaliy . a name identical with that k tered, or so ui.arly reseinl)hi,? .pt in a case where stich ^iH' iolved and testifies its coi«M and if anv comiiany, throH::li consent as aforesaid, register.! ibsisting compi'i'y "^ ''''^^^■; Llculated to deceive, smhhM- n of the registrar, change it^ L registrar shall enter the luw Lu^r name, and shall issue . tlie circumstances of the OiW. tetany rights or obligauom. a proceedings instituted ^.it« I ndanvlegalpioe'^"'^"'^^";;, Lpany by its new name b ■d against the conipiny 1') «- ose of promoting mt, >^j ^>ot involving tlu3 ao^usiJJ. n,bersthereof,slmh,^l 1 ,uore than two acres nl *l under the hand of one of tta-1 f,. 7 Q. B. "tl. L) See Form F. in Sche.l. 2. 25 & 26 VICT. CAP. 89. — part n. distridution, etc. prineipal secretaries, or assistant secretaries, empower ..ny such company 1,1 huld lands in such quantity and subject to such coiuUtions as they think tit. 080 Al'PENDlX V. PART II. DlSTRIBUnON OF CAPITAI, AND LIABILITY OF MKMnKflS OF COMPANIKfi AND ASSOCIATIONS UNDER THIS ACT. Dutribution of capital. Tlie share oth: of iher in a company under Xaturo of into- (jf being transferreil in rest in company. 1 20 Vict, c. 47, S 15.] interest this act shall be personal estate («), capable (jf being transferreil in iiiaimer jjrovided by the regulations of the company (/), and .shall not be (if the nature of real estate ; and each share shall, in the ca.S'; of a conqiany havinj; a capital divided into shares, be ilistinguished by its appropriate iiuniher ((/). 23. The subscribers of the memorandum of association of any company under this act shall be deemed to have agreed to become meiubers of the fomiiany whose memorandum they have subseribetl, and upon the regis- tration of the company shall be entered as memljers on the regi.ster of luemljers hereinafter mentioned ; and every other person who has agreed toheeome a member of the conqiany under this act, and wlio.se name is inti'Ted on the register of members, shall be deemed to be a member of the company (/i). 24. Any transfer of the share or other interest of a deceased member of a cflinpany umler this act, made l)y his i)ei"sonal representative, shall, notwithstanding such personal representati\i' may not himself be a member, k of the same validity as if he had been a member at the time of the execution of the instrument of transfer (/). i'o. Every company under this act shall cause to be kejit in one or more lioniis a re|,'i.ster of its members (/.) ; and there slii.Ube enternl tin icin the tiilluwing jiarticulars : — (1.) The names and addresses, and the occupations, if any, of the iaeml)ei'S of the company, with the addition, in the case of a ciiinpany having a capital diviiled into shares, of a statement of the shares held by each niemlier, distinguishing each share by its number, and of the amount paid or agreed to be ennsideied as paid on the shares of each member : (2.) The date at which the name of any per.son was entered in thf register as a member : 3.; The date at which any person ecased to be a member : .\nil !,ny Lompany acting in cany ; and such list shall state the names, aildro-cs, and occuiia- tions of all the membei's therein mentioned, and the nundier of .sii,ms held hy each of them, ond shall C(jntain u summary siiecifying the followin" particulars (n) : (1.) The amount of the capital of the company, and the numlier d .shares into which it is divided : (2.) The number of shares taken from the commencement of tlie company up to the date of the sunnnary : (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 iiersons who iiave ceased to be memliers since the last list was made, and the number of .shares held by each of them. The ahove list and summary shall be contained in u separate part of I register, and shall be completed within seven tlays after such fointitiitL day as is mentioned in this section, and a cojjy .shall fortlnvitli U warded to the registrar of joint stock comiianies (o). 27. If any company under this act, and having a capital dividid iiit' .shares, makes default in complying with the i)rovisions of tlii.s act with forwarding list of .espect to forwarding such list of members or summary as is licrcinbildre lacin crs, ic, jm-ntioned to the registrar, such comiiany shall incur a penalty n.t ,„ exceedmg five jjounds tor every day during which such delault cimtimu-; l"jg l*^ ' ■ ' and every director and manager (/)) of the company who .shall knowin^lv imd wilfully authorise or permit such default shall incur the like peii.thv, Company to give 28. Every company under this act, having a capital divided into sli.m-. notice of consoh- ^^^^ ^^^ consolidated and di\ ided its capital into shares of laiwr aiuoet dation, ov of con- , .. . . , , '^ , . „. . ,. . . im version of capital ^i^^^^ "S existing shares, or converted any portion ot its capital into .stock (j, shall give notice to the regi.strar of joint-stock companies of sucli toiuoliJa- tion, division, or convei-sion, specifying the .shares so consolidated, diviiW, or converted (r). 2!). 'Where any company under this act, and having a cajiital divi.lH into shares, has converted any portion of its capital into stock, aiul (.'iva Penalty on com- pany, &c., not into stock. [21 Vict. c. 14, §6.] Effect of conver- sion of .shares into stock. {I) As to other companies, see §§ 45 and 40. (m) See the Form E. in Sclied. 2. (71) See, further, when shares have been converted into stock, § 29 ; when share warrants have been issued, 30 & ol Vict. c. 131, § 32 ; when capital has been reduced by a return of paid-up c.\pital, see 43 Vict. c. 19, § 6. (0) As to their inspection, see ^j '■ and 174 (5). ip) I.e., manager (^0 /afto. See&l- S071 V. Barton, L. K. 10 Cj. B. 320. ajl Briton Medical and General Lifciif- 39 CI^ ^. ol. (?) Under § 12. (r) See § 34. G2. (luvin^ v,'hii;li its d. imili ()i\ contiiiue^ ; mul ivtiv I knowingly \\w\ wilt'iilly ,,v tlif like Viiiill . ig a eiiintiii dividid iiitn V n li-'t (»!') of "11 l"V-"ih ,y (in \vlii''li tin' onliiwiy oi'Aindvy nicotine? iu wi'li as is lu'iil, iivc mcmlii-rs »( ui's, luldiv'^x'*', ami oeniim- and till! nuuil't'V nf sliiii\s avy si.ecil'ying lln' Mlowhu impany, an.l the mimlnv if Uu' connufiiniiiunt i.f tli' navy : iluive : ions of the lievsoiis who liave hif^t list was uiaile, ami tlu' Lheui. ned in a sej.aiate imrt ot IIk- ■n days after such foiivtniilt copyslndl f.ivthwitli !«■ f r- 'Siiya capital aivia^d int" ,e vvovisions nf this ad vrtl. ov snn.niary as is h.reiuUlore V shall incur a ponaltv n , Which such default cuntimu-; •oiupany who shall kuowiig .1 shall incur the like pei.ab. •i capital divided into sliatcs .iutoHhares of larger ««— ! rtion of its capital into stoot.i. U companies of sucheomcW. [shares so consolidated, chviU . and havin, a c.>iiitaUi*; Its capitalinto stock, aiuUiujj As to thciv inspection, sec §J 3- [ Te manager tic /aofo. ?ee6„l y Barton, L. K. 1*^ '^•, ,., .„| L Medical and General bJc-i^^^A m^ vt. ol. ' I) Under § 12. See § 34. 25 & 26 VICT. CAP. 89. — paut n. distiubhtion, eti 041 notice of such conversion to the re),'iHtrar, all the jn'ovisions of thw act Api'ENnix V. wliicli are applicable to Hhaves only sliall cease as to so much of t\u'. capital ,.,, ... 7 7. ' .■uj h converted into stock (s) ; and the rej^ister of nienihei's lierehy reipiired L^ 57 1 ^' ' to be kept hy the company, and the list of memhers to Ik; forwarded to " the rcf^istrar, sludl sliow the amount of stock hi;ld by eacli member in tliu list instead of the anwunt of shares and the particulars relating to shares luri'inlicfi)re reipiired. 30. No notice of any trust, expressed, imidied, or constructive, sliall be Nocntiy of trasls entered on the register, or be receivable by the registrar, in the case of on re^tisicr. cfliniianics utider this act and registered in England or Irehmd (<). ['^P ^ ''•'t- e. 4", 31. A certificate under the common seal of the company, specifying any ^ '''■! >li,iie or shares or stock held by any member of a company, shall be prim<} t!«i'tilii-iite of fncic evidence of the title of the member to the share or shares or slock *''""'^'* *"' ^^o^-^- tberein .specified («). _ f^^^^' '' ^"' 32. Tlie register of members, commencing from the date of the n^gistra- ' , tion of the company, shall be kept at the registered oflice of the comi)any [.""^ister""' " kreinafter mentioned : except when closed as hereinafter mentioned, it r^ ,.• ! ,- shall during business hours, but subject to such ivasonable restrictions as k .23.1 the ('oni]iany in general meeting may impose, so that not less than two liours in each day bi' ap])ointed for inspection, be open to the inspection of any meniher gratis, and to the inspection of any other person on the payment of one sliilliiig, or such less sum as the comiiany may prescribe, for each inspection ; and every such member or other pt'rson may reijuire a copy of such regisiter, or of any part thereof, or of such list or summary of nitmbers as is hereinbefore mentioned, on payment of sixpence for every hunilred words re(piired to be C(jpied : if such inspection or copy is refused, tiie company shall incur for each refusal a penalty not exceeding two pounds, and a furtlier penalty not exceeding two pounds for every (lav (luring which such refusal continues ; and every director and manager of the company who shall knowingly authorise or permit sutdi refusal shall incur the like penalty ; and in addition to the above penalty, as respects companies registered in England or Ireland, any judge sitting in chambers, or the vice-warden of the Stannaries, in the case of conijianies subject to his jurisdiction, may by order compel an immediate inspection of the register (x). 33. Any company under this act may, upon giving notice by advertise- Power to close mcnt in some newspaper circulating in the district in which the registered re^'istcr. office of the company is situated, close the register of members for any [20 Vict. c. 47, time or times not exceeding in the whole thirty days in each year. § ^'^'l :i4. Where a company has a capital divided into shares, whether such Notice of in- .'•haies may or may not have been converted into stock, notice of any crease of capitid iiitiiiijc ill such capital beyond the registered capital, and where a com- '"^"'1 ^' members puiy has not a capital divided into shares, notice of any increase in the " i^tMr. iuniil)ir of members beyond the registered nmnber, shall be given t(j the r^Q y^^^ ^ ^7 tfji-trariu the case of an increase of capital, within fifteen days from the •'.lie of the passing of the resolution by which such increase lias been 37.] u) See Table A. Nos. 23-25. (') See Bradford Bankiwj Co. v. Unw, 12 App. Ca. 29, ante, pp. 459 I and 477. Ill) As to the right to require this, see jTiUe A. Nos. 2 and 3. See as to these Ictnifieates, ante, p. 64 ; and iu connec- tion with transfers in blank, ante, pp. 471 et seq. ; and forged certificates, ante, p. 484. («) As to mandamus, see ante, \i. 440 ; and the right to take copies, ante, p. 314. wm 942 THE COMl'ANIKS ACT, 18G2. Apprndix V. Remedy for im- proper entry (ir oniiHHion of entry in rej{ii(ter. [20 Viit. e ii 25, aiul 21 Vict. c. §8 8-9.] . -17, 11. Notice to regis- trar of rectiticii- tion of register. Register to be eviilencc. [20 Vict. c. 47, §26.] Liik)>i1ity of pre- sent anil past RUthorisct'l, and in tlin ciisc of nil incronsc of in(!ni1>nrs, witliin fiftnn ilny, from till' tiiiu' nt which such incriNusi! of ini'iiilicrs hiw Im'I'Ii rcsolvcj nn or hiia tiiki'ii jihicc ; and tlie rc^'istrur shall fortliwith ruconl the aninmit of such increase of capital or ntenihcrs ; if siu-ii notice is not ^'ivin witliin the ]ieriod aforesaid, the company in ilefaiilt shall incur a iictialtv not exceeding five pounds for every day duriuf,' which such iic^'lfi t to (livc notice contiiiue-i ; and every director and manaj:;er of tlie loiiiiiaiiy who shall knowingly and wilfully authorise or permit such default >liall inmr the like penalty. ;).'). If the name of any i)erHon is, without sufficient cause, cntircil in ,,r omitted from the register of mendjcrs of any comi>any undi'r this act, or if default is nuide or unnecessary delay takes place in ent"riny on the rfflAn the fact of any jierson having ceased to he a memlier of tln' iMiiniMnv, the person or menilier aggrieved, or any luemlier of the coiiijiaiiy, nr tb- comjiany itself, may, an respects comiianies registered in Kii^jlainl ui Ireland, l>y motion in any of her Majesty's superior courts of law di equity, or liy a]>iilication to a judge sitting in chambers, or td the via- warden of the Stannaries in the case of comi)anies subject to liis juri- diction, and as respects companies registered in Scotland bv summnrv petition to the Court of Se.ssion, oi' in .such ether manner as the siiil courts may direct, apjjly for an order of the Court that the rcf,'isifi' may be rectified ; and the Court may either refuse such apjdicatioii, witli nr without costs to be paid by the applicant, or it may, if satistlcd nf the justice of the case, make un order for the rectification of the rt';,'isti'r, ami may direct the company to ])ay all the costs of such motion, ajiiilii'ation,fir ])etiti(jn, and any damages tlie party aggrieved may have sustaiiiid : The Court may, in any pioceeding under this section, decide on any i|iiu-ti('ii relating to the title of any person who is a jiarty to such pruciciliii;^ to have his name entered in or omitted from the register, whether such ([Uestion arises between two or more members or alleged inciiiliors, or between any members or alleged members and the coini)any ; ami ^cncrallv the Court may in any such proceeding decide any question that it may If neces.sary or expedient to decide for the rectification of the register; pio- vided that the Court [if a court of common law] may direct an issue tn 1/e tried, in which any question of law may be raised, [and a writ nt' eriui ir appeal, in the manner directed bv " The common law procedure act, 18.')4, shall lie] (i/). 36. Whenever any order has been made rectifying the register, in tlir case of a company hereby required to .send a list of its meinbers to the registrar, the Court shall, by its order, direct that due notice of such rciti- tication be given to the registrar. 37. The register of members shall be priimi facie evidence of any lnatte^ by this act directed or authorised to be inserted therein. Liabilitii of tnenibers (z). 38. In the event of a company formed under this act being wound up, every present and past member of such company shall be liiiljle to tou- (y) See, also, infra, § 98 ; and as to rectifying registers generally, ante, p. (il ; and as to this section more particu- larly, pp. 120 et seq., and pp. 747, 748, 755. The words in brackets are ro' pealed by 44 & 45 Vict, c, .W. (z) See, further, as to the habihty (f members, §§ 42, 48, 180, 182, 195 .mi 362. 25 \- 26 vioT. CAP. 89. — paut ii. msTnint'TioN, kto. 949 nilitH's, within fiftiru lUy- i-H has l>ci'U ri'Holved im or itli n'l'onl the iimmiiit d' notice in imt >^\w\\ witliiii HhiiU incur n. \wm\\U m liich Huch iR'^leit tu ^-ivc agov of the f(iiiiii;iiiy whi. it Kucli ilefaiilt -liiill iiKW iflicieiit cause, iiitiivil in or uii>uny uutlcv thi< ■M\,«x\i • in i'nt"ving on tlic ri'j;iliiation,ir ti.n 1 party to such proceediii;^ to |i the ret,'ister, wliellu'V sucli (hers or allej^ed nieiid.cvs, ^r tlie comiiany ; and gciuTallv any (luestion that it may K' itieatiou of the register ; ino- inv] mav direct an issue to l.c aised, [and a writ of ervm or lonlaw procedure act, 18;i4, Ectifying the register, in tli-- [ list of its members to the [that due notice of such vi>ti- l/«ac evidence of any iiwttc^ led therein. Ider this act being wound up. Ipany shall be liable to o.ii- I The words in brackets are re- Yy 44 & 45 Vict. c. .If. pe further, as to the liability <1 k§§42,48,180,182,195:u.r triliiile tli ll>e asHctn of the compiinv to an amoinit sulhcient for payment Aitknuix V. nl' tlie delits and liabilities of the eomiiaiiv, and the costs, rliar''es, and ,"~ , ... ... 1 1- ,1 4 !• 1 , moniliom of ,.\peiise-i ot the windniK up, and tor llie payment ol such sums as may be eoinpany. ivniiircd for the adjustment of the riglitn of the contributories amonj^st r.2() viet .• 47. thenwelves, with the {' the company if ho has ceased to be n member for a period of one vear or upwards pricu' to tlie commencement of the winding lip ((i) : (2.) No past inenilier sliall be liable to contribute in respect of any debt or liability of th(! company contracted alter the tinn^ at which he ceased to l)e 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 existin;,' members are uiuiblt! to satisfy the contributions recpiireil to be nuide by them in jnu'suance of thi.s act ; (4.) In the ca.se of a company limited by shares, no contrilnition shall he reriuired from any member e.Kceedinf,' the amount, if any, un- paid f)u till- shares in respect of which he is liable as a )ireseiitor ]iast mend)er : (5.) In the case of a company limited l)y <,'uarantei;, no contrilnUion shall be rerpiired from any member I'xceedinj,' the amount of the undertaking,' entered into on his behalf by the memorandum of a.ssociation {!>) : (6.) Nothing; in this act contained shall invalidate any provision con- tauied in any policy of insurance or otlier ccmtract whereby the liability of individual members upon any siu'h policy or conlrait is restricted, or whereby the funds of the c(jmpany are alone made liable in respect of such policy or contract (c) : (7.) No sum due to any member of a company, in his character of a |-.22 Viet. .•. CO, member, by way of dividends, profits, or otherwise, shall lie jj 17.] deemed to be a debt of the coni))any, payable to snch me.mlier in a case of competition between himself and anj' other creditor not being a member of the company ((/) ; but any such siuii may be taken into account for the purpo.ses of the final adjust- ment of the rights of the contributories amongst themselves (n). m, cl. 5, und § 200 ; and see § 102 respecting calls in winding up. As to Jircdors, where tbeir lial)ility is un- limited, see 30 k 31 Vict. c. 131, § Ti. See ante, pp. 252, 253. (ii' See §§84 and 130, and as to past members generally, ante, p. 750 and j SWfiffj., and 855. See, also, Taurine t'c.,25 0h. D. 118. {h) See §§ 90 and 134, and Lion Mutual Ins. Assoc, v. Tucker, 12 (^. Ii. D. 176. (f) See ante, p. 246 et sei/. {(l) This .applies to guaranteed divi- dends. Stuart's tntst, 4 Ch. D. 213, and ante, p. 436. (e) See § 101, and ante, pp. 741 et seq. , and 857. 944 THE COMPANIES ACT, 1802. AlM'KNDIX V. PART TIL Management and administration of coiirANiEs and assocutiox^ UNDER THIS ACT. Registered office of company. [20 Vict. c. 47, §28.] Notice of situei- tion of registered office. [20 Vict. r. 47, §29.] Publication of name by a limited com- pany. [20 Vict. c. 47, §30.] Penalties on non-piililication of name. [20 Vict. c. 47, §31.] Rp^ist«r of inortgagcs {h}. Provisions for protect 'm of creditors. 39. Every company under this act shall have a rcf;istereil ollice to whii li all coiunumications and notices may he addres.sed ; if any coniji.iny uiidw this act carries on husiness without having such an oIKce, it sliau ..air a penalty not exceeding five pounds for every day during which busiia-ss is .so carried on. 40. Notice of the situation of such registered office, and of any chan'r therein, shall be given to the registrai', and recorded hy hini : until >iicli notice is given the company .^^hall not he deemed to have conijiliudwitlitlir 2)rovisions of this act with respect to having a registered office. 41. Every limited comjiany mider this act. whether limited 1)yslian> or hy guarantee, shall paint or affix, and shall keep painted or aflLxed its name on the outside of every otlice or place in which the hiiniiiefs of tW company is carried on, in a conspicuous i)osition, in letters easily ItgilJi, and shall have its name engraven in legible characters on its seal, .u.l shall have its name mentioned in legible characters in all notices, adwr- tisements, and other official puldications of such company, and in all Iiills of e.vchange, i^'omissory notes, endor-semcnts, cheques, and oidei^ fur money or g(jods purporting to be signed by or on behalf of such conipaiiv, and in all bills of parcels, invoices, receipts, and letters of crwlit of tin- company (/). 42. If any limited company under this act does not jjaint or affix, ainl keep ])ainted or affixed, its name in manner directed by this act, it diall be liable to a penalty not exceeding five pounds for not so paiiitiiij; n atfixing its name, and for every day during which such name is nut >" kept ]iainted or affixed ; and every director or manager of the coinpaiiv who diall knowingly and wilfully authorise or permit such ilcfault Jiall be liable to the like penalty ; and if any director, manager, or (jHktrif such company, or any ]jerson on its behalf, uses or authorises the ust if any seal purporting to be a seal of the company whereon its name is nil so engraven as aforesaid, or issues or authorises the issue of any iiotioe, advertisement, or iither official jiublication of such company, or signs or I authorises to be .signed on behalf of such company, any bill of e.wkuig'', promissory note, endorsement, cheipie, order <'or money or goiid.s, oi' m\t< or authorises to bi' issued any bill of jiarcels, invoice, receijit, or Iciuij of credit of the cfimpany, wherein its name is not mentioned in nuinici aforesaid, he shall be li.iole to a penalty of fifty pounds, and shall fuiiliti le personally b ibleto the holder of any such bill of excliange, promlMni note, che(pU!, or order for money or goods, for the a mount tliercuf, uiiIin*! the sanii. is duly 2)aid by the uumpany (;/). 43 Every limite l' keep painted or utii.Nt.d ii> n which the i)usii)efs of iliv „ion, in letters easily k"^ill>, . characters on its seal, m:\ .■aracters in all notice. mlv,i- uch company, and in all >.i h^ Its cheques, and orders for r on hehalf of such compam, and letters of credit of tl- •t does not paint or affix,, ai|l r directed by this act, it M ounds for not so paiiitui'- ^■\ I which such name is M - or niauager of the co,niuii,v , or perndt such delault .h\ _ |irect.jr, n.anac^er, or offi«r >t ; Ues or authorises the um- .1 ,anv whereon its name v iM ,i^es the issue of any noti*, , ,f nich couipaTiy, or si?n5 oi „upany, any hill of exctoy, . for money or j^oods, or b>«>^ ■els, invoice, receipt, or to iJ not mentioned in iu»' r,fty pounds, an.l shall furtkr ihhiUof excl.au;^e,pra.nM |.h .uortgage or charge a .k..| Pec ante, p. 203. See ante, pp. 175, 203. litivriptiun iif tlie projicrty nmrtj^a.ueil or char-"(l, tlio aiiinunt of cliarL^f .Vpi'in'mx V. crcateil, and the names of tlie m(nt;^a;^'ccs or iicrsons entitled to smli ,|iaP'(.'(/; : if any property of the company is mi.rt;,'aj,'ed nr ili!ir;;ed wilh- hiit ?iicii entry as aforesaid beiuL; m.ule, every director, manaL,'er, or other ,|lia-''of till' conii>any wlio kin)\viii^ly and wilfully authorises or perniils \\.x (.mission of such entry shall incur a jienalty not exceeilin^' lifty |,,iiii(ls; the register of nuirtgages required liy tliis suction shall be open | riispoctioii of t.. iiisnectiiin by any creditor or member of the eonipany at all reasonable logistcr.J t liiiifS anil if such inspection is refused, any oliicei' of the cnnipany ivfii-iiii.' tile same, and every director and manager of the coni]iany autlm- j ti-iiy or knowingly and wilfully permitting such refusal, sh.ill incur ;i iKiwllv not exceeding five ])ounds, and a further [lenalty not exceeding two itiiiuUfiir every day during which such refusal continues ; and in addition [ti llif almve penalty, as respects companies registered in England and •kiiul, any jiul.ne sitting in chamhers, or the vii'e-warden of the Stannaries Ir.iiliecase of cniiijianies >ubie(t tn his jurisdiction, may by order comjiel aailllUleiliate in-pection ol the register. 44. Every limited banking company and every insurance company, and t'eitaiii coni- |iki«i>il. iimviilent, or benetit societv under this act shall, belbi'e it cuni- j; '[''''■'*'" •'"''" I 1 • 11 ii !■' 1 Ai 1 . 11 1 II.. 0"'i statcoieiit i.iiiies InisuR'ss, and also (Ui tlie Inst jloiiiliiy m reliriiaiy and the liivt 51'0iil:iy ill Aug. 1st ill every year during which it carries on bii^iin'ss, t.ikr a >tateineiit in the Foini marked I), in the 1st Schedule heietn, nr..^.) yj^.^ ^,_ -jj In I'ni'in I>. ill s.-liediile. Muar tlieieto as (ircunistaiices will admit ; aiicl a cojiy of such .statement S 1,] Ifluil lie put up ill a conspicuous plare in the regi>tercd ollice of the coiu- [uiiy. iiiid in every branch ollice or place where the business of the cdiu- ;;ivi- carried on ; and if default is uiai^e in coniidiance with the provisi.ni.- : ;!ii- -ectieii thi.. eouipany shall be liable to a jieiialty not exceeding ti\e U'l- I'ui ev'iy day during which such dcd'ault continues, and every iitdui' and manager of the comiiany wlm shall knowingly and wilfully ailiiiiise or jiermit such default shall iiieiir the like jieiialty. Eviiv lueiiiher and every creililnr of any conipaiiy nientiiuiecl in this '.i'li -hall lie entitled to a cnpy of tlie above-nieiitioiu'd stateiiienl on niieiit iif a sum not exceeding sixpence. 4.J. Every coiinMiiy under this act, and not having a cajiital divided List of ilirceturs l"4iivs,/,-, >hal] keel, at its legisteled olliee a reL;i>tcr e ili'ailiilig the '" '"= '^'-'1'' .'""' 1 11 1.1 .. !• .. 1- , , sen*, to registrar, iiiii-aiid a Idresses and the occupations ot its iliieclors , v i :,..iagers, and ill S'lid til the registrar id" joint-stock companies a copy uf such registei, '1-liall ri'iiiii lime to lime notify to the registrar any change that takes i't ill siieli ilircctors nr nianageis. i'l. If any comiiauy under this act, and not ha'iug a capital tlivided renalty on com- lt'i>lmies, luiikesihdault in keejiiiig a iet;istir uf its ilirector.s or managers, l''"'-^' ""* kcepini,' r i. , ... A ■ , • 1- -.1 orseiiiliiif,' re;,'i.-- I ■iiiiliii^r a co]iy ol such register to the legi.-trar m comidiance with ^^^. ^^^ aircetuis i'lvgiiiiig lules, or in notifying to the registrar any change that take- jH;c. i'iii>\icli directors or managers, such delimiueiit company shall incur l>.iiiilty nut exceeding live iioiimls for every day duung wliieh such ■lult oiiitinues ; and every direi'tor and manager of the company who illkiinwiii^dy and wilfully authorise nr permit such ilefault shall incur i'.ti: lielialty. In the LMse nt" delicntiux's imssiii;; |. , b) L. R. Ir. Ui. ■k) As to other companies, .see § "Jii. As tu the iiispcctiim of this register, see ^^ o'J am! 17^ (."i). pm Tin-; coMi'AXii;'- ait, lS(r2. Al'l'KNlJlX V. Promissory ni.ti-'s ami bills of exclian;,'!.'. [•JO Vict. c. 47. § 13.] Prohibitidii iiyaiiiat canyiiiL; on bu.siiif.ss wit less than sevc-n ineiiibors. [•20 Vict. c. 47, §39.] 17. A |ir.iiiiis^iiiy iidlu uv liili of uxcliaiij,'!' .-hall lie ilcfUn-d tulMv,. Ij,.;., iratlf, aecujitctl, or ciidor.-iMl on l)i'liair iuli company dniiiiL; fin; time that it so e.ivries on Imsii.c.w after smli ]ii-riidii| six inoiitlis, and is cognizant (jf the fact tlint it is so carrying,' mi ljiisiiii.,( with fewer than seven members, shall be severally liable for tljr ]i;miiiiii ipf the wIkjIc debts of the company contracted during sinli time , ' ],ay be sued for llie same, without tlie joinder in the'actioii ii nvitlw member (/((). (lenei'.d inettin^' of coiii|i,;!iy. [•20 Vict. c. 17, S3-2.J Power to alter regulations by special vesolu tion. [•20 Vict. c. 17, §33.] Doliiiition cf (Special resi'ln- [20 Vict. c. 41 §34,1 I'l'iii'iftDim Jill' inuli'i't mil iij iiliiiiliii'<. v.). A geueial meeting of every company under this art -liall 1., i once at the least in every year (n). 50. Subject to the jirovisions of this act, and to the couditii.nnc.iitaii.nlj in the memorandum of association, any company formed under tliisiiitiii.,i| in general iiie(;tiiig froni time to time, by passing a special re • J manner hereinafter mentioned, alter all or any of the regulations i :' jiany contained in the articles of association or in the Table niaikci .\. ;:i| the lirst schedule, where such table is ap)dicable to the coiniiany, or iii,i.;j new regulations to the exclusion of or in addition to all or anynf iki., latiiins of the c(jmiiany (o) ; ami any regulations so maile by spcfiuht»!;- tion shall be deemed to be regulations of the coni|iany of llie saiiiu v.ili. as if they had been originally contained in the aitiile- of ,i>.-(FiiiitiHii, shall be subjeel in like maniiei to be altered or iiiodilied by an\ i-hK-'m special lesolulioli. .")!. A res;sed liy a company under this act sliall In' 'I;': to be sjiecial w heiievi-r a resolution has been passed by a inaimity 'i less than th lee fourths of such mei;ibers of the company for the tiiiit I' entitled according to the regulatioi s of the company to vole as iiiiv present, in person or by pro.xy (in cases wlieiv by the legulaliuih >!: eonipany proxies are allowed\ at any general meeting of wliidi ii;^ sjiecifyiiig the intention to jiropose such resolution has been duly and such ''..solution has been coiilirmed by a majority of surh imuiUii :>l the time being entitled, according to the regulations of tlic ioiii;ij'.i;.j vote, as may be jTeseui, in jiersou or by jud.xy, at a subsei|iuiit .-esfi^ meeting, of whii'l.' notice, has been duly givi'ii, ami held at an intdvu (/) See niilr, pp. -230 d s-ij. (ill) See iS 70. (ii) Sec 30 & 31 Vict. c. 131. § 3it. Tlio vcai- begins on tlic 1st Jan. See allit'jii V. Jliii-tni,, L. Ii. 10 Q. 15. 329. (o) As to altering tie' conditions in the rieniiiianulilbili^--{ v\My li^ilil'' inV tUr 1.:IV1,„ ,1 auriii^ su'li liiui-, \ni\\ lh,.-:u-tinli :! .•")■'''-' „/' lllllll'"'!''^' y vnul.-r lliis ad -li;ill '- : npuuv VuviiieduiiikTtliisii'tii'M ■ passiuii a spwialrr- '- invoftlievegulaUonr;o;i ,n"orintlu^Tal.K' luavkHA, lirulik' t.) tlii^ eomiumy, oniukl ,,l.UtioutoaUorauynltlKi.."iJ ■itioiis soinail.' I'y sjiraulivv:^ \„,,„„,,am-ol-iWsimrv„k;J I, ilH. arlirl.- "t a~M-wm..u.a;J ,lor lun.liUe.ll'y aiiy.ul»r^;| ui.aov this act shall l.;' ■!-■ ^,,„ pass.;.! byaiaaiovay.i: ,f the .oiuiuuiy fov the tUUf ^ XW .■..mpauy to vote a* n.^') svl>.rel.ytb..v^alal.oiH.'t.J .,,,,,,1 „UH-li..|^ of NV u.l> H n..olution has lu-.u .luly ^^ vamajovityol-su.hmmUi' L,;.sy,atasubse,«.n.^;;» '.ivVn, and h-M a. an mtcni |. 3, t an.l ^'>. Sec, fartliei-: lov.lial raiil-^H Ui,coial resolution, SSM-'^i;; UlcA.,Nos.2a,20,ana„.M itself of tho l«o«oi to 25 \ '2(5 VICT. CAl'. 8'J. — TAUT 111. NrANAciKMKNT, KXC 9-17 ,,,t Ic is tliaii l'oui'U.'(Ml '(/'), iiiort' til UK' month, from thu ilali Al'l-KNDIX V, ihe iiii'^'tiii;- ut wliich such iv.soluiioii was lirst passed : At any muot 111" mditmuei III! luprivc Ivliolcs, T,-o-"r V. la. toy. Whiii'-vrt'', I in this section, nnliss a jtoU is demanded hv at least live ■ml)ors, a declaration of the chairman that llic resolution has 1> I miod shall hi' deemiMl i'onclusi\e e\'ideiice of the fact, without jiroof of ■' niiiiihi 1' or proportion of the votes recorded in favour of or a,L;aiiist the s'.w. Notice of any meetiiio; shall, for tin,' purposes (jf this section, he ikriiK'il to he duly given and the nieetiui; to he duly h -Id, whenever such imtiie is given and meeting held in manner ]ir('scrilied liy the rcgulati(iii> ,1 till' iiiMipany : In com]iuting ihe majority undi'r this section, wIumi a ilcuiaiided, reference shall ho had to the niimher of vi>ti-s to whi' li [Mil 1> I 1 ,[i h lilt' .'li 111 default of any regulations (7) as to voting every inemher si;, ill r niber i.s entitled by the regulations (jf the company. Tuvisiuu wlieru c one •t'lUl {)•) vote ; and in default of any regulations as to summoning general »'> ret;u"mtiniis y.i a meeting shall he held to he duly summoiied of which seven '^^ *■" "'*'''''-"'-^' notice in writing has been served on e\ery mnnber in manner idi notices are required to be served by the Table marked A. in the .•dule hereto and ill default any reL,"\lalion^ to th sLimiiion iiieetin'fs, live members shall b ipetelit to suinn iiiu s,mw (0 ; and in default of any regulations as to who i.s to be chairman f siidi meeting, it .shall !"• competent for any person elected by the jcmkrs present to preside (";. .■)3. A copy of any si)eeial resolution that is passed by any company lU'gistrution of iidfi' this act sliall be piiiited iiid forwarded to the registrar of joint- si ,vk comi )anies, aiK I be recorded by him ; If such copy is not so forwarded litliiii lil'lceii days from the date of the coiitirniation of the re.'-olutioii, th 'iiiipaiiy diall incur a piMialty not exceeding two poumls for every day lutioiis. |20 Vict. S35.1 a!;i'!' the cx]iiration 1 ■f such fifteen (lavs durii vliicl 'iiiittcd to lie forwarded : and evcvv director and inaiiaL iig wjucli such copy IS ;li ;er of the company |\v!i.i>liall kiKnvingly and wilfully autlior'se or permit such default .-hall IllCViV tile like pelialti .14. \V1 artii'h if ass Isiwcial resolution fur lh.e ti ;ociation ha\i' been ''egistcred, a copy of every Coiiics of siiccial lieini in lorce shall Ije annexed to or en ■esolutions 1 (•very copy of the articles of association that may be issu( d after f'-^O ^i-^t. c. 4 36.] tile ]iib>iii^ of such res(,lulion ; "Where no arli(des of association have nil iv^'i.4ered, a copy of any special resolution shall be forwarded in kriiit to any member re(iuesting the .same on jiayni 'lit of (Jiie shilling, or lucli lojs sum a.s the conijiany may direct : And i'' any company makes t in cuinpl\iiig with the iirovisioiis of this seitioii, it shall incur a ffHalty U(jt exceeding one ]iound for each cojiy in respect o.' whi(.'h such iel.iult is made ; and every director and manager of the comiiany who Ul kiuiwiiinly and wilfully authorise or ]iermu such default shall incur ktlikc penalty. •""'. Any ciiinpany under this act may, by instrument in writing nnder K.xeor.tioM of "inmoii .-eal, empower any per.son, either generally or in respect ,,f ''eed.s aliro.id.^ I}' -p'-ali'd matters, a.s its attorney, to execute deeds on its behalf in {."?.,\" '" '■'' "*'' '}■ l'l:ia' iidl situate in the Unded Kingdom; and e\'ery deed si,i;ne(l by ^ ,'^v^1 [(j'l A.S to eonipulalion of time, soc «'■ pp. 305 and 300. j'Si See ■•« to the inenniny of tlieso fd3, Bri"/; (1,14^ ^ijnc Cu., W. K. '■■1 p. 14U, (c) Sue Table A., Xo. 11. (s) Sec Table A., Nos. 35 and tij 7, [') SjcTalilc A., Xo. 34. (u) .Sec Table A., Xo.-i. a'.t, 4o. 3 1'^ UiS THE COMTANIES ACT, 18G2. Ari'Kxi>ix V. Kxiii]iin:itinii nf .•ill'^iirs "!' loiii- jjany liy iiis]]LM> tors. [20 Vict c. 17, sin Apiiliciitiiiii fur iiisiit'i'tiiiii til lio sujiiiurloil liy evinonue. Inspection of books ami I'X- aniinatiiin ut' otlicevs. [•20 Vii't. I'. 47, ^ n-.l llcpm't (if ri'siiU (if oxaiiiinatioM, kc. [•20 Vii/t. c. 17, giiO.J li attui'iii'V, nil lieliall' nf tli (iin])aiiy, am il under li iiiiiliii'' on llio (.'oiiiiiaiiy, anil liavc tliu r-aniu (,• i\w\. if il wi ■-'-■ul, slmll 1. le uiuUt 111 roinnioa seal ol' tlie ennijiany (/•). .')(j. The Jjoiivd i)f Trade may aitpoint one or more coniiietent iii>j, to examine into the aii'airs of any tomjiany under tliLs act, (■It. li tiieicciii, iu sucli manner as tlie Hoard may direet, ujmju tin- aji] llld til lV]in|t iK'utn iollc tliat is t( ,) (1.) In tiie ease of a hankinj,' company tliat 1 las a eaiii tal into shares, (ijion the a|i|iliiati jf nliers hnldiii;; ni.i l,- III. tini -third art of tin: whole shares of tl le rnliii.any ful' llii- e Ijeni'' issileil (2.) Jn the case of any other ctunjiany that has a capital diviiluil im.i shares, ii])on the np[dication of menihers holding' nut [iss lliaii oiie-lifth part of the whole shares of the tomjiany tur tlie liiin' lielli'' issllei (3.) In tl le case o f any comi)any not having,' a capital ili\ iili.il ihtn shares, uj)on the application of menihers hein;^ in iiiiuilui iint less than one-lifth of the whole number of persons fur tlic tinn' leinj.' en lered on tlie re'dster of the company as nuniiHTs tliel iiiilVil 57. The application sliall he snpported liy such evident if Trade may rt'nuire for the jairpose of showing' that the applicunt.i lim 4ood reason lor rei(nirin_n such investi^^'ation to he made, and tliat tin ire rot actuated hy niaiici ilU'itV I'"!' ii.-l«'(.'tiir Ml motives in instituting the same P.oarct of Trade may also reipiire the applicants to give payment of the costs of the impiiry hefore apjiointing any i inspect' irs. )S. It shall he the dutv of all ollict and l"en!s o f tl le C(i1 inim ]iroduce for the examination of the inspectors all hooks and diiciiiin.-ii tl leir ens 1" spector may examine M|niii uutli tin- itlicers and agents of the conipiuiy iu relation to its 1 usuir.v idnunister ^ucil nath accordii If an lilic.r ami III au;riit n'i'ii- s ii iioiiuce an\. iiook or document iierehv direct' . I ti answer any ijuestion rtdaling to the aliairs of die company, a jienalty not exceeding five pounds in ri'spect of each olfe luicil, nr Iu . -liall iimir ■)!). rpliall he wiittiii r ]iriiited, as the Board [n'(.t'i< ^v tills net, aiul to vi/imii ect, ujiou the iijuilkatidii- liiil lias a cMl'il.il (livi.lnl mt'iuViLTs lioldiii^; iKit It- s (if till' cniiipiiiiy fur till' , liiis iv ('apital divlik-il in!'i bers lioliliug ii^t l^s tkm the coini>aiiy loi' iho liiin' ,-iiig il capital Jiviilnl ii.t- ibi-rs Ijeiii^ in huuiIh'V ii"t ilifv ol' pt'ivoiis fur llif time i)ni\iaiiy as iiu-mln'is. siudi L-viili-iut' as tlie ll'«'.i'l 11-- that the-' applic;uit.< liiuv (J he iiuulo, ami tlmt ilnv istitutiiig tin; .sMuc ; T'l.- (.■ants to give s.ruriiv I'-v | ippoiiitiii^; any iii>in-L't»r ^r [ ai^i'iils (if till' I'dmiKiny t' all hddks and dncuiiK'iits in y I'xamiiu' ui"iu latli tin- m t(t its liiiMUOS and luav llic'--r III ii-fiil rcl'ii- s I'l t' ,t III hi' 1 '■.idiiccil. I'V I" lie ciiiiiiiany, n. -liall imnv of oach oll'oiKf. , the ins] lectors shall ivl«'it ' report shall lie wvitt.'U i ] opy shall 111' fiirwarilol Iv the coniprtny, and a fmilirt j ipoii whose apiiliiati'iii l'"' ,, any one or nioru of tkni • xaniination as al'uvcsuid >UM ilicatiiin the iiisiicclor-«vi.'| ,iiiiliaiiy 111 iMieral inet'tiiig diiicts ; and 'he (illicers and a;,'ents of the Aitkniiix V. irect the saiiii' te I'c liiiil i'i:t ^1 V authoiised In dn. „,,.ialvesoliiti(inf»'),iW"i''l 'the atlairs of the cumF^I uue powers iiud piirfiirm t if l>,oard of Trade, \vitli t I'l ,rt to the Jliwrd of Tr.iai A to such lievsoiis ;i. 'A't an ,„,ii|iany snail incur tlii' same penalties in case of any refusal to pi'o(luce ,iin lKiui< "1 docuiiieiit hereliy i('i|nired to he produced to such insjicctors, nrtii answer aii>' (|iiesti(in, as lliey would 1ia\e incurred if smh iiisjiector liiil lifdi appointed hy the Jioard of TivkU'. 1)1. A cojiy of the report of any inspectors apjiointed under this net, Re]inrt of in- iuiiiciiticatcd l>y the seal of llie company into whose affairs they have spectdi-s to Ipo iiiiulu inspecliiiii, shall he admissihle in any l(\i,'al proceeding;, as evidence '^^''J"^' „f tlie oiiiiiimi of the inspectors in relation to any matter contaiieil in [.".., ^'" '^' ^;;lll report . (;i Any r-ummon.;, notice, order, or other document re(|uired to he Service of notieca -ivhI iii">ii the company may he served hy leavinj,' the same, or sendinu; •'^c., (mcinnpany. ■• ilii"ii^li the itost iir a prepaid letter add.essed to the com pan v at their V"?.,"'*' ''" '"' Tf.'isti'l'cd oilice ((). 03. Any document to he served hy post on the ciim]iany shall he f'orvices ef no- ji.-ti'il in such time as to admit of its lieim; delivered in the due course of '"''-s, itc, liy .'ulivfiy wiljiiii the jieriod (if any) preserihed fur the service thereof; '^"^ ' ,i!iil. Ill |i|iivin,i,' service of such document, it shall he -iilticieiit lo JH'ove '^~- , ,' ' "" '' ;li;i' ?ui'!i dncuinent was projierly directed, and tliat it was put as a piv- ' ji,iiil letter iito the ]iost oflice (»). 0-1. Any humnion.si, notice, ordei', or jiroeeedin^' veipiiiiiij.; aiilheiilica- Aiitlicnlir.-itinn iion liv the oompanv, niav be si'rned liv anv director, sei retarv, or other "' ""*"'cs ol 1 '• 1 .!• !■' .1 " 1 ' 1 . 1 1 il' ClUlipnilV, iVl'. ;nii innsed ollicer of tlie companv, and need not lie innler tlie common , ,. ' . ' -.■111 tile compain ; ami the same niav ih- in writiii'4 or in print, or ^ .-,-, i faitly ill writing and [laitly in prirt (.i\ Ja'ijuI Proi>'i'iUi(iM. 05. All effences under this act made piinishalile hy any ]ienally may Ifecovery of k- jinbefiited summarily hefore two or more justices, as to Kii^laiid, in lienahics. wiiner direeted hy an act jiassed in the se.ssiou lioldeii ii; the eleventh [-J^*^^ ''-t- ''• ''> anl twulltli years of the reij,'U of Her Majesty Queen A'ictoria, chajiter ^ '"' ' fflv-tlireo, intituled "A:! r.ct to facilitate the ]ierformance of the duties J^^g ^^ ^ "''" 'f jiistices of the ]iea('e out of sessions within Hngland and Wales with i.>lw't to summary conviction.s and orders," or any act amendiiii; tlu^ [■.iiiio; and as to Scollaml, hefore two or nioi" justices m the sheriff of -■county, ill manner directed hy the act jiassed in the session of i'arlia- I niiiit lioldeii ill the seventeenth and eijiteeiith years of the ]'eiu;n of her 17 .^ 1* VIci. Jlij-sty t^ueer. Victoria, chapter one hundred and four, intituled " An ''■ ^" '■ I It to amend and consolidate the acts relatiii.u' to iierciiaiit shi]ipiii^' ; ' otaiiyai-t aiiicn(lin,t,' the same, a.s re<,'ards offences in Scotland a<;ainsl that j act, nut liein^' offences hy that act described as felonies or misdemeanors ; jaiid as to Irelaml, in manner directed by the act jiassid in the sessinii jli'Wen in the fourteenth and lifteeiith years cf the reign of her Maj'.^sly 1 i A l.'. Viri. I tjiic'i'n Victoria, chapter ninely-tliice, intituled "An act to consolidate c '•■■'• 'Hill anieiid the acts regulating the proceedings of jietty session.s and the ('. re§M. ''.«cc llulcsGlJuMd fit, ,ind I! •Iwi.'c., r. 8. i«l See Rules 03 .lud 04. [ii >cc, a? to iirnceeiliiigs in liank rnptcy, Tlie Ilankniptcy act, 18S3, 4; 148. wliicli seems to rerniirc the seal id tlio cnmii.oiy. 950 •I'llK (OMI'ANIKS \VX, 1802. Aptkniiix v. Applicntion cf lienaltics. [20 Viet. 0. 47, §r.7.] Eyidcnnc nf meetings, ,^c. [20 Viet. c. 47, i 'lO.] (lutii'H of ju>tii'i'^i (if tin' i>ciii'i' nr.t (if i|ii;(rt('V sissioiis in Tivl.inil," i,r miv ad aiiiciiclin^ \\n'. siiuil'. f!(i. 'l"ln' justircs (ir Hliriilf impusiiiL; any jicnalty lui'lir ilii^ act luav ilirnt tlic wlidlt; (ir any jiait tlu'i'vut' to Ik' applied in or tuwaiiU ]iayiii(-iit iif till' costs of the pr(iuc(Mlin;.,'s, or in cir towanls IIk; rewarding; ilic porsmi upon wliosc infoiinatidii or at wliosi- suit such jicualty lias beou locnwrcil; and, sulijcct to siidi diri-ition, all ]n'naltics shall lie paid into iIr. mcipt of lior ^[aji'sty's (•\rlif(|Uir in suili niamu'r as the Ticasiu'v inav (iiicct and shall Ik; cai'iii'd to and I'oini ]iart of llir Consoliilalnl ImuhI (if ii|.. Tnitud Kingdom. ()7. J']vi-fy comiiany under this art shall of companies under this act, and engagiil in \vi mnies \\itliui am tlie \H e-\\ai'd<'n jurisdiction and [ .it 1 siihjcct to the jurisdicti Sti tlu the Stainiaries shall hav rs, as vicll on th mimon law e and exercise tlic lis on tlie eijiuU thereof, which it now ]iosse.sse,s hy custom, usage, cu' .statute in tlii- unincoriior •ated comii.niie: hut oiilv so tar are CI insistent w ith tl provisions ol this ae IS such jurisdictiiiii nr ]»)«■ ■I and with the c(iustitiitioii ompanies as prescrihed or retpiired hy this act ; antl for the piu[i"-' giving fuller eft'ect to such jurisdict loll III a 11 actions, suits, or leL 'dines instituted in th < 'o\»rt has co<,'nizanc( 11 ml Court, 111 causes or matters v.liereol cess i-^suin'' (Hit of the same, and all eu!i te serveil on anv comiianv, w rules, demunds, notices, wavranLs, anil summonses rei|uireil hy the practice nf the Couil to 1 tereil oltii ailtli" illed lel'Ii.;- or not reulstel'i or an\- niemiier i ir colitrihutoiv tllerenl, r, :u;ent, director, manage ir servitnt thereof, mav he ^er\ ed in ;i! v part of Kngland without any .^iiecial order id' the vice-warden f I'l' uV jmrpose, or hy sin li speci ird lai onier niii ■rved in any iiail nf the I la: Kingdom of (Jreat I'ritain and Indand, or in the adjacent idamh. ]m of the dominions of the Crown, on sm h leinis and conditions a~ iliii''ir| shall think lit ; and all deciec-, orders and judgmenls of the slid I made or pronounced in such causes or mattci may he enforced in tli manner in %vhicl\ vVcree.s, orders, .iml judgments of the Couil mav' law 1" riifoiced, \\heth('i' within 'i heviiid th' local limit- >■( tie ~ mi (>l) 8ce, .•l^ to meet "u's and tlic minutes i., .| p.'ui nf tliis .>e'-tii'ii, 'iii?', i' of their iToi^tHsliu^.s, iinfr, pp. ;!0t rtunj., .iiid .'•T!'. au»fl *» to tlio H(V2. 'ssiiin> in Iii'Liii'l, •j,") ,V •2<) VICT. r.\l-. Si». — I'AKT III. MWAdKMKNr, KIC 961 111' aiiv ciialty wu'li-r tlii-^ ucl luav litMl ill di' tiiwanls inivmcm the vc\Viivtliii:4 llic iu'VM'ii ICllillty llllS bl'fU IvcdViTcil ; nil l)c \yM<\ intn tlic ivii'i]- us tlic Trt'asuvv iiiiiy diin!, . Ciiiisdliilalrd ImiihI iif llr .kill ■s ; ami until tln' fmitwvvi- nv ov ineetiii;^ nl' (lirectniv.i ■li'ii-h iniimli-; liavc hM\ >« licM anil cimvciiiMl, iiii.l ;;1! ,1, to have lici'li illlly \y.\--\ iiiaua;j,fis ov liiiuidutcvs -Iwil • svieli ilivi'Ctois, laanngfiN r ,_v iV'kci that may aft^-vw;.;'. ications (;/). act, anil L'n;4ai;vil in \^■"''■•■■ I (if the Stannaries, tlu' ^m have ami cxi'ivisi-' tlu' likr inou law as on tlu' oiiuity -ii; j a,L;i', ov stat\it>' in lli'' Tiu'li juris. (iiises veiiuireil "r amli-r,- i aiiv comiiany, wlu'ilu'V 'v" cmtrilmtovy tlu'Vint, ihrreof, may si'rvi'il i:i:i!M the vice-vanlru i"i rve.l in any pail nftlic I'liiMI the a.ljaeeiit i-iaiid-. K ail, I ,Miuilitinn> a~ iln-i'''] iu.lgmenis of the Slid C ' may he enfovce.l in tli.-arii«j uiits nfthe Court niMV'.'v th, leeal limit- "f tli'' >'■ ,:vi ui this »cr!iu;>, ""■". 1': ,,aiii> ; iuid the seal nf the sajij Court, ami the .sij^iialnre (if tlie re^^istrav AprFMux V. ihereot, .-liall '* jmliiially iiotiecd hy all otjicv coiiils ami jml,i,'es in Ec'liimi, iinil -hall rei|uire no other ]iroot' than tliu iiriMhiitinn thereot': ih'Mv','istr;ir of the saiil Court, or the assislarit-re,L;istrar, in makiii.L; sales „n,l(.l' any ilerree or onler of the Court sjiall he entitled to the same mivilffif ef scllin!,' hy auction or couiiielitiim willinut a licence, ami witii- ,i;it Keiiig liahle to duty, as ajud;^'e of the Court of Chancery is entitled to in imrsuaiR'e of the acts iu thai hehalf. t;i(. Where a limited company is plaintilf or jmrsut-r in any action, I'^wor ti onler .r,;;. Ml' otiicr leyal proceeding, any ,ju' ''"'. iiiiv if it ai'iiear.-i hv anv creilililc lestimonv that there is reason to Indicve '.""^ '^ !" '"'"'"^ nil*, ""11 .- * _ ■ _ iiroai^lu liv I'ult if tlic ilclemlant he silcccssfnl in his (hd'elice. Hie assets of the com- Ijniitl..! ni'in- iiUiv will '"' in-ullicient to jiay his co-ts, i'ci|niie >ullicieiit security to lie ]i;iiiius. .;.-,ii I'.if siiili costs, and nia\- .~ta\- all ]irocceilin'4S until such M-iurit\ is |21 Vict. c. II, 7a. Ill any aition or suit hrought hy the company against any nienilier Allegiitinns in J. reiovcr any I'all or othc^r monies due from sucji incnihcr in liis a tinns a^^.iin t ,;n"cti'r iif ineinlier, it ^liall Hot he nc(i--ary 'o set fiirlli the sjirrial '"' '" '''"' limlu'i', lint it shall he sullicieiil lo allege that llie ile|i;ndant i-~ a niemliev ftlie ciiiDiiany, and i> indehteil to the company in ivsjieel of a call made i: ntlicr ninnies due wherehy an aetinn cir -nit hath accrucMl to the (ompany ("}. .lll'Tiifidii i)f fiini!<. 71. Till' I'liims set forth in the second schedule hereto, or I'Mrnis as near I'linns in socoinl l;;yiL'tii a-i liiviimstaiices admit, shall he used in all mattei's to wJiieli such sclicdulc to l.o [ii;ib ivfcr ; the Hoard of Trade nuiy from lime to time make .-iich "■""-''■• |;i!teiiitions ill the tables and forms contained in the lirsl scln'dule hereto. Hoard of Trade ilktitdocs not hicvease the amount id' fees iiaxalde to the reoistrav in !"'iy .-dtor forms , . 1 ■ 1 ■ -1 1,11 '" SfllClllllc. Itai.' slid srlieiliilc mentioned, and m tlie Inrnis in tiie second siiuMlnie, oi , ,„ ... ^ ,_ I 1 1 1 ,. • • 1 ■• -1 . . |20 \ ict. c. Ii , I:,, ik'' >iiili additions to the last-im-ntioned loinis, as it ilceins veipusite : ^ r,(;j and 21 ■:v >Hi.!i t.ilile ov form, when altered, shall lie pnhlished in the '• London \'ict. c. 11, I'li/.-tti','' and upon such ]iuhlicalion bring made, such table or form shall ^ '--• 1 iV' tlio .sinic force as if it were included in the si hedule to this act ; but • iiltii-itiiiii made by the Board ii.li table. J rliHivii'iii.-: T2. Any I'liapany under this act may from time to time, by writing Power for cim- Jlii'i'r its ciiiiinion seal, a-ree to refer and may refer to arbitration, in I'-'"'^'"* *" '■'■'^'■''. iiT"iil;iiii't; with " The Uailway companies arbitration ad, If^o!) " (/)), any 1".!',:^','' j,,' !),..' ' Its'.-tiiij; or future ditfovence. question, or other matter whatsoever in . : >cc «,./.■. |,],. -JKS and mil. (■I) Sec (Uil(. |i. \>J, I,) -Si k -S^ Viet. W ■ ^t^ 'm' 952 Tin: COM PAN IKS ACT, ln(!2. Api'Kndix v. 7;!. All lli • |iio\ isiniis of " 'I'lu' Haihviiy ciiiiiiiiiiiii's niliiii;ii rrnvisidiis 0^ 1 M.'il),'' shall Kf .IcciikmI to apiijy to ail.itiatioiis lictwiTii r(,u\\w 'J 2 it 23 Vii'l. ]ii'rsoiw ill iiiiisiiaiicc of this art : aiul in the I'oii-triictioii of siicji 0, 51', to ajuily. sioiis " till' comipaiiii's " sliall he tli'diicil to iiiclu:li^ coiiiliaiiii'.s iiii I'V this art tu I'i'fcr (li-iiittrs to ai'liiliMtioii. WlNDI.Mi 11' Ol' Ci)M!V\Nfi: Meaiiin:,' of con- tributory. [•20 Vict. c. 17, §G5.] Nature of !ia- liility of ciiitri- biitory. [21 Viet. c. 11, §13.J PAirr \y. .\\i> Ass(K;r.\Ti()Xs i'ndi;:! this Contrilniturics in caiio of tlcatli. [20 Vict. c. 17, §05.] Coiitributorics in ca.se of bank- rniitcy. 71. The tfiiii " I'oiitiiliiiloiy " shall iiicau cvi'vv jicrsoii liaMc Iriliutc to till' assi'ls (jf a comiiaiiy under this ac-l, in the cxrnt nf il buiiii,' wound \\[) (il) ; il shall also, in all iiiocci'(liiij,'s for dctirnmi persons who arc to hi.' dui-'nu'd I'ontrilnitorios, mid in all jproci'L'diiif to the final di'tt'iiniiiatioii of siuli jicrsons, iiu'ludt' any jifisoii all Iju a coiitrilmtory (i). 7"'. I'lu; liability of any pt'i'son to contrilaite to the assets of ,i ,; under this act in the event of the same lieiii;^ wound uji, sliall be to I'l'oato a debt (in I'^iinland and freland of the nature of a s]i aceriiiiiL; duo from siudi person at the time when his liability innii liut i)ayablc at the time or respective times when ealls are made as after mentioned for enforcing' sueli liability ; and it shall he la' the ease of tin; liankruiitcy of any contributory to jirove against hi tlie estimated value of liis liability to future ealls, as well as calls made (/). 70. If any eontributory dies either liefore or after lie has been on tlie list of eontributories hereinafter mentioned, his jiersoiial n\i lives, heirs, and devisees .shall be liable in a due eourse of adiuiiii to eontribute to the assets of the eompany in disehai'^e of the lial such deceased contributory ; and such ]iersonal representatives, liu devisees shall be deemed to be eontributories aceordini^dy (;/). 77. If any contributory becomes bankrupt, either before eo' ai'ti been placed on the list of contiilmtories, his assignees sluill lie dii represent such bankru|it for all the pur})oses of the windlng-ii]!, ai be deemed to be coutributiiries accordin.nly, and may be callc( admit to proof aj^ainst thi! estate of such bankrupt, or othcrwiM to be paid out of his assets in due course of law, any nmnics d puidi bankrupt in res))ect of Ids liability lo contribute to the asset: company being wound up (A) ; and I'or the purposes of this .secti per.son who may liavc taken the bciietit of any act for the relief ((•) Sec,' as to comiianies registered under the acts of 1856-8, infra, §§ 170, 177 ; and as to companies registered under this act, but not formed under it or tlic last mentioned arts, infra, ^% l!)!) -198; and as to companies not regis- tered at all, infra, %% 100-201. ('/) ?cc §S 38 and 70-78, and (in'c, pp. 750, 751 /■.' t:cri. ((•) See Kules 5S and tlO to ante, p. C25. (/) See ante, p. 55t!. (.'/) Sec, also, § 105 ; ami a.s t' tliom on tbe list, see § i'O, .i p. 812. (/') See g 75 and ante, p. 55( to putting bankrupts, &c., on p. Slfi, ACT, 1S()2 \- 2(5 VK T. CM". 8fl. — i'.\i;r iv. wiNMNii ti'. 958 ilwiiy ciimpiniii's' avliitiMtinn :i t. pilriltidUH lll'tWl'CU I'dlillUllliis ;;;ii I till' I'liii-ti'iictioii I'l' ^iiili 111.,,. ti iiicliuU' ciiiujiaiiics mUliuri- . III. IV, ^()>:t.VT10NS UNDKlt TIU.S .\a('), iiiciUi cvi'iy pcrsnii lialilr lu i.,. ■ !■ tlii.< act, ill llu' I'vi'iil (if llif Mill- ,11 jiiori'i'ilinj,"^ for ilftfriiiiiiiii;; tin- tovios, ami in all pvinriMliiii^s ]<\m vsdiis, iiicluiU' any pi'ivoii iilli:'i;' mtviliuti.' til the a-.t liis i>ii;'; future calls, as well as calls ulivn.ly lirfniv (IV after he has hocii jilin'! r iiu'Utiomd.liis personal vqnv.-iiit,- ill a dm; course of a(liimii>tv,il!:> my in aischar;4e of the linliilii} 'I |,(.TS(iiial ivi.vesciitativc.<, luii>,;ii.; ilories aci'(ii'(liii;-;ly (;/}. ^ dvrupt, either hefon- ev after k' .:< S his assij^iiees shall he (Icemnl t' eposes of the wiiia;n--iiii, iiml -U r,liie4lv, mid may lie called ui-i] i" h haiikrupt, ox otherwise to ;ill'i^> ,,urse of law, any monies ihic Im>. tv 10 coiitril.ute to the assets (4 tV the purposes of this sectimi m t of any lu't for the relief el w-"- 1 (r) See r.nlcs 5S ami (10 to H2, :.v; | intti; 11. •'-•"i- (/) See ante, p. •>'>^'>' {,,] Sec, also, §105; ami .xs to r"""; | tl.cm on the list, sec § HO, ami ''''- p. 812. {!,) SccS 75 and ai'tc, V- m^. »'"' Z^" to putting lianknipts, &c., on the i-. p. S15. C'ircinnstaiirps iimlcr uliicli ciiiiipaiiy may lio woiiiitl up liy court. [20 Vict. c. 17, §07.] vent dL'l)tnr,s ((') before the (deveiith day of Oi^lolicr one thousand ei,L;ht Appkniux V. Imiidred and sixty-oiii; shall he deemi-d to iiave hceonii' liaiikruiit. ~~ 7S, If any leiiiale roiitrihutory iimnies, either hefore or ai'ti r she has Contrilmtorics in Inrii lilacrd oil the list of contiHiutoiies, her husliaiid shall duriii;,' the case of marriage. uiiiliiiiiiiiice of the iiiarria;^!' he lialdu to coiitriluile to the assets of the cuiniiiiiiv the .same sum as .■•he would liiive heon liuhle to coutrihute if she iiad nut iiiiirried ; and he >hall lie deemed to he a eoiitriliiitory accord- ingly (/.;. // "null ml II ji liij fiiii 1 1 . ;i). A comiiauy nnder this act (/) may he wound up hy the < 'oiiil a- kiviiialter delined, under the i'ollowiiii; circunistanccs ; (that is to say,) (1.) Whenever tile coiiipaiiy has passi'd a special reMilulidn rnpiiiiii:,' the company to he wound tip hy the Coiiit ; (i'.) Wlieiiuver tiie company docs not commence its husincss within a year from its incorponition, or suspends its husiness for the .-pace of a Mlioh' year : (o.i Whenever the im;iiihers are reduced in niinihii {<> less tlniii .-r\cn (//() : (1.) Whenever th(! company is unahle to pay its didils : (").) Whenever the Court is of opini'Hi that it is just and ei|iiitahle that the comjiany should he wound up f/i). SO. A company under this act (o) shall he deemed to he unahle to pay i;- ilclit.s, 1^1.; Whenever a creilitor hy as.'c made liy petition. 1 20 Vict. c. 17, Po'.vcr of court. Ill tile cn.-i' iif ii coniiiiiiiy I'li^M^'c'il ill ((•) wti'ii'il in Kiii,'laiiil that is iiut iiil;iij,'ii1 ii, woikiii;,' any such mini' a^ al'nri's.iiil, — tin' lliuli ('uuil id' ('liaincrv; 111 till' casi' iif ii coiiqiany ii'vi^li'i'<'il in liidaiid, liii' ('cuirt nf ('Jiniin.iv in Iiidaiul : lit all liases of cuiiiiianii'.-i ii'xi--li'i'''c,<>iiiii in rilliiT ili\isi(iii tln'ifol' : (rr) l'in\'iilnl tliat wliiTc llii- Court id' Clianrcry in iMi-laml or lirlaml )ii;i]jn an oriliT fur wiinlin^f u|i a ciiiii]iiiny uiiiIit this act, it iiia\-, if ii iliinkv lit, iliri'ct all siil)si'i|niiit i>iiiiiHiliiif:;s fur wimliii^' np the same in lie Iiot in till' ('i)iiit id' l!ankrii)itcy havin;.,' Jiiiisilii linn in the |daci' in wjiiili tlio iTf,'istiiiil dllici' id' tint ciiiii|paiiy in situate ; ami llii'irii|Miii siiiji l,i,|. nu'iitioiKd L'liiivt id' ]'>anluc]i |Hli- tioii shall operate in favour id' all the ereilitors anil all tlie ciiiitiiliiitnrii- id' the eonipaiiy in the same manner as if it hail heeii niaile n]iiiii ihr j-ii' lu'tition of a ereilitor ami a eontrihutory (c). 83. Any juilj,'e of the lli^'li Court of Chaneeiy may ilo in chaiiilici- .iir act which tlie Court is luiehy anthoriseil to do ; ami the vici'-waiili'ii ■ the Stannaries may ilirect that a petition for winiliiiL; n)i a cnniimiiv ' iiearil hy him at such time and at .such place witiiin the juii-dicli'ii : the Stannaries, or within or near to the jdace wlieie the rcgislcrcil nil: of the coni])any is situated, as he may deem to he convenient to the ]',iii; coiK'erned, or (with tlie consent of the jiarties concerneil) at aiiv jiLuc i:: Miigland ; and all orders made tliereupon shall have tlie sniiu' forn' iii.> efh'ct as if they had heeii ma le hy the vice-warden sitting' a! Tiui'h; ( Isewjiere within the jurisdiction of the Court, and all parties and luisn^ siimmoTU'd to attend at the hearing of any such jietitioii shall he cmii]" • ];ilde to uive their attendance hefore the vice-warden hy iiki' pniccs.s ami ni like mannev as at the hearing,' of any ciiuse or matter at the usual .sillins'; the .said Court ; and the registrar of the Court may, suhject to cxcepti' n. (r) Sec .S'l/cc/' Vallei/ Mine/', 18 CIi. D. 472, and 50 k 51 Vict. c. 53, § 28 (The Stannaries act, 1887), ()•)') See further as to Scotch windings up. 19 Vict. C.23. (.f) As to remitting to the County Court, see 30 & 31 Viet. c. l.^l , § 41 ct xq. (t) .\s to tlio po'itir.n. see (IiiIp, }<■ G'll, and Rules 1 to 5, and Forms 1 .'.:. 2, iu the 3i-d Schedule thereto. .V- : the order to wind up, see Rules 6tM. .iiul Forms 3—5, in the ■'?ril Sdiclr t liercto. (") See (intr, p. ♦i2l, and •"(> .v Vict. c. l:Jl. S 40. -lii/c. pp. Ci' id i;>;j. kill" illiy ll'i'i'' \\illiili :\\v\ ^.^ till' ciilU'l III llii' vi't- ■wanli'ii I'l'i'lilii''' 'li'i' i" I'i- lviintai;i'i>U!'l,v wnuml nji m iHn " till' I'li'irl " -IimU iii'i' ami Unit i^ in'' imilmuuI in . lli'^i Ciiinl 111' t'liaiitirv, nul. lilt' *'ii tlio rase nm lie wiii.liii;^' HI) of a omym lay 1h' v'-''^^''"''''^ ''>' ''"■ ""'■ rvi'ilitov.s (■(iulvil"il"iv "1 '■■^• ,,f the aliiivi' parlii'-S t'i;:i'lli'r u.y be ina.li' mi any siu'li I'Ui- ,ovs luiil all the cnutiil.mnn.- hnil l>t'i'U maili' "l"'" 'li''.i'''' „,H'Viiia\ 'l"ii"'li'>'''^"''-'"''' to ail ; ami till' vii'.'-wiuiU'ii"! l\.v win.lin.U iqi a CHmi«iiy 1- ,lai'i! witlii" llu' juvi-ilu'linii'l ,0 wlu'vc tlu' n-^i^li'ivil olti'v to 1)0 couvciiii'iit I" ll"M""''"- i,s .■oii.-i'i'iu"') at a„v pliur m ^.liallliavc llK•^al^|•fMm'il^■l i,..-wav.l.'u sitli..;^ 1" Tn.r.M'1 ut, anil all ravtii's anil l"V-* .uch pt'tiliou sliall l-c om.!.v l..-waT(U'nl.ylil<^'l""^-^'^'/'l"^"; ,r matter at the u.ualsUlm;^"tl ouvt way, .ul-ie.t to cxooplM'' ami lluk'sl tor., ami Forms l«lj the 3ra Schedule tlicreto. A>i_'| |vacrtowinaai),seeUulesG». Forms 3-5, in the :5M S.liel« "i^cc r/i.(r, v. «-2l, »"'' "'"^ '^ ^ ■J,") \- 2() Vlt T. CAI'. H*). I'Altr l\. WINMNi, II' ir virc-waviK'M a> lici'iloI'diT 11-1(1. ilo ami I'M'icis • sm li ami Aitrnihx V, ,.|;i]ilK'al to ll the iiki' ai'N ami imwi'is in the iiiallci' of wimliiij; ii|i as in' is now iisi'd ii iniii I rxeli'i^e in a J*"!! ">l 111'' eilllily ''i'le of llie saiil Collll {■'■y). M. A wimliiiK 111) 'if a I'nniiianv liy tlir Coiirl sliall lie iliiiiuil to eniu- C'oniiii"nrcniriit ^.1, IIM wiljilill'' HI) ;it iJii' liinr of tlic iiri'scntatioii of tlio ]i('lilii>ii foi' tln' w imiiii;; ii|i (7), I 'ourl may, at any tiiiii' al'tiT tlir iM'esciitatidii of a iM'titioii i'l a roiii]iaiiy niiilir tlii- ad, ami liofori' inakiti;,' an oidiT for wiii'liii'; ii|i till' roni|iaiiy, iqioii llii' aiiiiliralioii of lln- ronipany, or of any 1, iilHf Of roiitiiliiitory of till' roiiiiiany, ii'-tiiiin I'urtlni prorccilin^'s in adioii, >uit, or )iri)''e('ilino (■.) against ll mil; ic roni|iaii\ •1" ell 1 I'i'iii.s as „■ ('(lint lliinks lit, (n) ; tin- Coiiit may also at any liiiii' after tlm in'i'scn- si si,] liuii iif -iu'li ]ii'tilioii, anil lioloiv till' tiist aiijiointniriit of lii|iiiilat( of «iiiilin;j liy c'liiirt. [20 Virt. p. 17, Sniiss the same with or Hearing pet llinii. illimil I'l.st-, niiiy ailjoinn the hearing,' lomlitionally or iiiiroiiiliii(.iiall\ , [•.'o Vi.t. ,,ii'l iiiav iiiaKi ki any iniei'im onier, i.i' any other onler that it ileeins just (c. Sii <'••-*: \V1 111 an older ha- l.'en luaile lor wimliiij,' up a eninpany nmler Actions ami .-iiii lii;- ail, no -ml, action, or oilier |.ri.reei lin- ill pliM-eeileil Willi or til l.c Hlavc'l. 'illlllU'lK'i'i 1 a''ailist the eomiiallV exeelil with tlie leave of the ('ollll, an.l I-'- V''' I't to -aril terms as the ( ^'i. Wlirii an on ;lii-art, a ropy of sin ler has I I. ml may ini|. (.1). leeii maae lor w imlino up a company ih h order shall foilhwith l.e f. I'wan led liV tile loiil ('ii]iy (.f oiilt'i' I. l.e forwardeil L. rei'istrar. to till' registrar of joint-stoek eonipanies, who shall make a minnle i-jn Viit. c Ij I'lIlV ii-rrt.l ill his hooks relating,' to the eomjiaiiy. S 713. 1 SI). Till' t'oiirl may at any time after an order has heeii made for Power of court «iiiiliii;,' up a company, upon the application l.y motion of any creditor or to stay in-ocecd- iiliiliiiti.ry of the coinjiany, and upon jiroof to the satisfaction of the "'n'* I'liil tliat all proceed in,;,'s in relation to such wiiidiiio 111 ii'dit to 1. in Vict. 0. 1; I'll, make an order staying the same, either altogether or for a limit d sn. ill terms and suhjecl to siuli conditions as it deems lit ('■ I. \\\ icn an o rder has heeii made f or wimliii'' u p a company limited KllVrtof or.lrrmi V puiraiitcu and having a capital divided into shares, any share, capital I thiit may Hut have l.een called iij) shall he deemed to he a.ssets of the |^ "inpany, mid to he a delii (in Kngland ami Ireland of the nature of a I'l'ialty) due to the company from each member lo the extent of any shares held by him and payable at -uch sliare i-ipital of c.imi.aiiy hill iteil y giiiirautoo. nii'i that tunc n: may l.e unpaid on any may be appointed by the Court (/). i'l. Till' Court may, as to all iiialter.s relating to the winding up, have Court m.iy have to tile wi>!ies of the ilitor." .ntributi as l.roved to it bv icganl t,. wishes f crcilitors or iiv >iillicicnf evidence, and may, if it thinks il e.xpedieiit, direct iiieetiicus ,.o,]tril.)ut :tli ircditors or coiitributories to be summoned, held, aiii .nducted il ll iiianinT as the Court direct-. Ibv the purpose of ascertaining their ..' Ainetiilod a.s to tlio Stannaries l.y :ii3.]Yict. e. 19, § 38. ;/ Sec (infe, p. Gti I, g§ 111. l.'n, |l'':l 161. /.'.;/.. for penalties Brit'id M. ; .imla.sto unregistiMc.I eoiai.; S-"I .ni'l '2" I. (f) See ante. p. 1! (/•) Se'-. al l:!4. ^>, IMAGE EVALUATION TEST TARGET (MT-S) .<;^ '4i. 1/ /vV. . 1.0 I.I ,;! |3.2 .1 122 2.5 iiiiii 1.8 1.25 P '4 1.6 •• 6" ► V] <^ /] ^a % ,./ '^ // >,• >^ ''W '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4S03 %^ "ifc^ o '^ 056 TlIU COMPANIES ACT, 18»)2. n S '*if M'l. mt ArrKMUx V. it ri* J Appointment uf otiiuial liiiiiidu- tor. [20 Vict. c. 47, §88.] Resignations, re- movals, filling u|> ofvacanoies, anil uonipcnsatinn. [20 Vict. c. 17, 8 92. J Style and dntics of ofliciiil liqui- dator. [20 Vict. c. §89.] 47, Powers of official liquidator. [20 Vict, c 47, §90] \vi.'y the reyulatioiiii of the company ("y in such apjiointnu-nt, all the property of the cninji.iiiv s'lall lie dc !■ d ". ■ lie in the custody of the Court ()'). !)3. Any oili;i.d li(|uidator may resij,'n or he removed hy tlic ('omii;i due cau.se show.i : and any vacancy in the oflice of nn olHcial iii|uiclaiNt appointed l)\' the Court shall be tilled by the Court {k) : there sliail W ]iai,l to the otlicial lii|uidator such salary or remuneration, by way of iicncnia^t or otherwise, as the C(mrt may direct (/) ; and if more liipiidators tlmnone are appointed siuh remuneration shall be distrilnited amongst tli m in such projiortions as the Court directs. 04. The otKcial liipiidator or li(iuidators .shall be descrilnd liv tli?sl\li of the otlicial lii[uidator or otlicial licpiidatoi's of the particular (niiipimii respect of which he is or they are appointed, and not by liis or tliiir in- dividual name or names {ni) : he or they shall take inio Iiis or iluii custody, or under his or their control, all the property, cHects, and tlii in actions to which the company i.s or a) ipeai-s to be entitled, and slial perform such duties in reference to the winding up of tiie cdniiHiiiji may be impfised by the Court (n). !)r>. Tlie oHicial lii|uidator shall have power, Avith the .'•anctiim of lii; Court (b!i I winiling up <•'' ^''^ '''""l"'"- power, with the sanction of ik suit, or prosccutinn. nr "tl- lal, in the name and on I'tluii | he company, so far as may U lin^; up of the same : and heritable and niovili acti(m(c) of the omiiwnv ■ ,) Sco Rules 48—50. J,) See ante, VV- <■"" <"' "''• j) Pee ante, p. 707 and § ii'i '■ Ggi»t«rcd companios. !•) Including claimi* again>^t the Jrl , for misfeasance, Park G«U "'"V'j 17 Cli. D. 234. jiuMie; auition or jirivate contract, with power to transfip the .Vi'i-knoix V. wiiide tliereof to any jterson or couqiany, or to sell the .^anie in ])a reels (s) : ,■4,) To do all acts and to execute, in the name and on behalf of tln^ rompany, all deeds, i-eceipts, and other documents, und for that jiurpose to use, when necessary, the company'.s seal : (."(.) To prove, rank, claim, and draw a dividend, in the matter of the liankruptcy or in.S(jlvencv or se(piestration of any contribu- tory, for any balance a;,'ainst the estate of such contrib„;ory, and to take and receive dividends in respect of such balance, in till' matter of bankruptcy or in.solvency, or .se(iuestratlon, as a si'jiarate debt due from such bankrupt or insolvent, and rateably witli the other seiMirate creditors : (!.) To draw, accept, make, and endorse any bill of exchanj^e or [12 Jj 1-1 Vict. ]proniis.sorv note in the name and on behalf of the company, c. luS, § 8.] idso to iiiise iipon the .security of the a.s.sets of the company from time to time any retpiisite sum or sums of money ; and the drawiu}.', acceptin},', makin;^, or endoisiu},' of every such bill (if e\chan;,'e or promissory note aa aforesaid on l)ehalf of the company shall have the same eH'ect with respect to the liability of such company us if such hill or note hail been drawn, accepted, made, or endorsed by or on behalf of such company ia the course of carrying,' on the business thereof : (7. To take out, if necessary in his otlicial name, lettei-s of admini.s- tration to any deceased contributory, and to do in his otlicial name any other act that nifiy be necessary for obtaining' I"*\" ment (tf any monies due frum a contributory or from his estate and which act caiuiot be conveniently done in the name of the company ; and in all eases where he takes out letters of ail- luinisti-ation, or otherwise uses his otlicial name for obtainin;? payment of any monies due from a contributor}', such monies .diall, for the jjurpose of enabling,' him to take out such letters or recover such monies, be deemed to Ite due to the otlicial lic|iiidator himself : S.i To do and execute all such other thinj^s iv.s may be necessary for winding up the alfairs of the company and distriltutiiij^ its assets (<). 00. The Court may provide by any order that the olHcial litjuidatiir iDuy uxiTcise any of the above powers without the sanction or iiiterven- Iti'ii of the Court, and where an oIKcial li((uidator is provisionally ap- "'iiited may limit ami restrict his powei-s by the order appointing him. !ii. The otlicial liiiuidator nuiy, with the sanction of the Court, appoint la-'liiitur or law agent to assist him in the perfonuance of his duties (k). Oiiliiiiirii poin'r.'^ See Rule 68, iinte, p. 703. {x) See ante, pp. 684 tt seq. (y) See Rules 29 — 31, and the Furnis 24 to 32 in the 3rtl ScbeJ. tu the rules ; und see ante, pp. 74S r( iieq. Discretion of otlicial liiiui- dator. [•22 Vict. c. CO, S9.] Ap|M)inliiicnt uf solicitor tootliid.'d liiiuidator. [20 Vict. c. 47, §91.] Collection and application of assets. [211 Vict. c. 47, § 7;..] 958 THK COMr.XNlKS ACT, 18(>2, B", '8BI|| Appkhkix V, ProviHion as to leprcucnfntivo coiitributorivH. Power of couit to require delivery of proiHirtj to official li(|i)i(lator. [11 &12 Vict, c. 45, g CO.] I'owpr of court to ordor payment of (lebtH by con- tributory. [11 & 12 Vict, c, 4.% § 6*J ; 21 ii 22 Vict. c. 00, S17.] Power of court to uiitkc culls. [20 Vict. c. 47, § 82.] ivctily llie n-yister of iiuiiiU-i's in all cases wliuiv such rKtiliciitiuii ii'iHiind ill Jiiii'simiict! ol' tliis uct (:.), ami .sliall cauhc tin- asm.ts of tl cunqiniiy tu be collected and aiijdied in discharge of its iialiilitie>. 91). In settliiij,' the list of contrihutories the Court shall (li-tiiiL;iii.|| 1, twc'-n jiei'soiiii who iiH' contribuliiries in their own rij,dit mid |n imjus wl are conlributorie.s as In-inj,' roiiresenlatives of or beinj,' lialilc tu tin. 4.1,1 of others ; it shall not lie ntcessarv, where the ]ier.sonal re]irescii|ati\\-, any deceased contributory is ]ila('ed on the list, to add the heirs iirdcvis,., of such contributory ; nevertheless siuli heirs or devisees may be luliltda and when the (,'ourt thinks tit («). U»0. The Court may, at any time after nia'iinj,' an order lur wimiin; up a company, require any contributory for tin time bein^f scHlid ■iiuli list of contributories, trustee, receiver, banker, or agent, or nllici nl ili, company, to pay, deliver, convey, suirender, or transfer lurtliwith, ,,1 within sucli time as the Court directs, to or into the hands uf tlie olliiiai licpiidator (h), any sum or balance, books, jiapers, estate or etfccts wlikli liappen to be in his hands for tlic time being, and to which the lonijm is ftrimd fariv entitled (c). 101. The Court may, at any time after making an order I'ur wlniliii- up the company, make an order on any contributory for the time kiiy settl.'d on the list of contributories, directing iiayment to br iiiuiK-, iu manner in the said order mentioned, of any monies due from liiin orfrm the estate of the |ierson whom he rejiresents to the company, ixi lihivf u( aik I onies whicii lie i contributories, to the extent of their liability, for payment of all iir» sums it deems neces.sary to satisfy the debts and liabilities of \\\v jiany, and the costs, charges, and expenses of winding it up, and U \\ adjustment of the rights of the contributories amongst themselves; may, in making a call, take into consideration the prol>ability tkit mh (:) See § 35, and ante, \\ 121 et iiq, («) See § 76, «nd rules 29—31 ; and se, iiiite, p. 813. {},) See § 103 and ijg 116, 1G5. {c) See Form 13 in the 8rd Schcd. to the rules. See, also, § 166, and ante, pp. 093 et tc(i. {(I) iSec, also, § 1(35, and Rule3J,u Form 39 in the 3rd. Schcd. to the nle (r) See as to directors witli unliniifc liability, 30 & 31 Vict. c. 131, pi. (/) See, further, as to set-olf, f. cl. 7, and 30 \ 31 Vict. c. 131, ^',>i ante, pp. 741 U ie(^. 1HC.2. i wheiv bVK'li rfi'titii^alion i- ihM ciiuiii' tilt' asM'ts uf till- iiim' of its liaUilitit-. lie Cuurt simll (li-iiii,yiii>l, 1... ir ovii rij^lit and i«iscms win if or W\u'^ lialilc tn tin- (Wii. ;lie )wr.s<)uul vi'invsfiitativ.^f st, to mill tlif liiiisdidivi-.,. !» or (li'visi'i'S luav lir ailiW;.- ina'.in^' an onliv I'm' wiii.iii. thi time Iwinn Mttlid ..mi, LtT, or aj^i'iil, tir oll'n'. r "1 li.. ler, or transfer fortliwilli, ..t ■ into tlic hands of the (.Iti.iil | iiapers, estate or I'tlWts \,iii,li 1". ami to which the t(.iiii.air. nuikiut^ an ordiT lor wiu.lji:. ontriltntorv for the time luiiy I'tin},' iiaynient to Ik' luii.lc, iu | V monies due from liim or tr.m its to the eompany, fxi.liwv,- u( j person whom he ri'i-n-^ents iiim riill made or to he uKule I'vili.- act (,iO ; aiHl il >"".^ ' '" '"''''■"• I ited, allow to such contrilmt.iv r the estate whirh lie ivpreniii- alinj^ or eontrmt wi'h the c*- , a member of the cmuiwii) in | • anv comiiany, Avhethcv liinikl rt diic on any account wli.tovr I ay be allowed to him l-v«.iv.ij .er making an oitlcr hv winJiu.! t has ascertained the surticku.M ,u ami order payment vlieivofkl ime being settled on tli^li-fi .ilitv, for payment of all '"1 ,bt,," and liabilities ..f the >* -OS of winding it up, miiliunM ,ries amongst themselves; iiiKl II I ■ation the probability thut s.*l ,0 Sec, also, §165, luul Rule 30,4 .m39mthe3id. Schca.tothenileil _,) See as to directors with unh»i'.<','»'| te, fv '•*! '' '"^' ■2'> Si •20 VJCT. ( Al'. S;). — I'AIJT IV. \VI\|)1NU II'. 9r><) .( ihe cciiitiibiitories upon whom the same is nnnle ma\ jiartly or wholly Ai'I'k.nuix V. tail to pay their respective portions of the sanio d/ . 1(13. The Court nmy order any contributory, punli i.^r, or other jicrsoii Puwer of court fruu wliiMii nmiu'y is due to the company to pay the saiiii' into the IJank 'o order iiaymcnt i.| Kii^jhuul or any branch tlntreof to the account of tin; oliii-ial litpiidatiu' '"'" '"*"''• ii:-twi(l of lu the ollicial licpiidator ; and such order may bi enforced in the L^lLV"^'" '''" ^^' Mine iiianner as if it had directed payment b) the ollicial lii|nidati)r (/i). 104. All monies, bills, notes, and otln-r sfiurities paid and delivered Regulation of Into the liaiik of England or any branch thereof in the event of a coini)any account with i„iii;; ttiMiiid u]' by the Ciuirt, shall be subject to such order and regula- '•'""'■'• li. Ill for the keejiing of the account of such monies and othei' ell'ects, and f.rtlie |iaynient and delivery in or investnu-nt an•'• 45, ^ 89.] ullifr ihitinent matters stated in such oriler are to be taken .o be truly .-tatcd as against all persons, and in all proceedings whatsoever, with the fSteiitioii of ])roceedings taken against the real estate of any deceased uiutributury, in which case such order shall only be pritmi furie evidence fiirthe puri)ose of charging his real estate, unless his heirs or ilevisees were uii the list of cunlributories at the time of the order being made. 107. The Court nmy tix a certain day or (■erti...i days on or within Court nmy fix iilii.'h ir.'ilitors of the company are to prove their debts oi- claims, or to a time for credi- 1..XI lulled from the benefit of any distribution male before such debts tors to prove. ;,ivi,iove(l(/K [20 Vict. c. 47, l(is. If in the course of proving the debts and claims of creditors in the . I iiut of the vice-warden of the Stannaries any debt or claim is disputed I'roceedingH in ,.,.,..,,..,, , ,., I -i 1 . the court of the i.ytiic iilluiul Iniunlator or liy any creditctr or contriluucuy, or appears to vice-warden of I llif Court to be open to (piestion, the Court shall have power, subject to the Stannurics .ilijieal as hereinafter jnovided, to adjudicate vipon it ; and for that ])uri)ose on proof of till' Slid Ciiurt sliall have and exercise all needful powers ot iiujuiry ^''■'*'^' I ti.iiiiiiiig the same by alHdavit or by oral examination of witnesses or of [Lirties, whether voluntarily olfering themselves for examination or sum- liiiniied to attend by compulsory process of the Court, or to produce docii- iiKiits helorc the Court ; and the Court shall also have power, incidentally, t.Hli'cide un the validity and e.vtent of any lien or charge claimed by any I cixiliturou any property of the company in respect of such debt, and to make declaral ions of right, binding on all jH'r.sons intciestetl ; and for the I11..IV satisfactory determination of any ipiestitm of fact, t\v mixed (piestion [I'fiiiw and fact arising on such impiiry, the vice-warden shall have jiower, |inii; thinks tit, to direct and settle any action or i.^sue to be tried either on ■I Sec, fiirtlier. as to calls, Rules 33, •jj, and unle, pp. 840 it »eq. A See Rules 11, 32, and 3(5—41, lunliuifc, p. 693. (t) See Rules 11, 32, and 36—44. (k) See § 76. (0 See Rules 20—28, and anti, pp. 713 rt icq. w I ll t 9G0 Al'I'RNDIX V. Court to ailjiLst rights of coiitri- liutoricH. [20 Vict. c. 47, 8 86.] Court to ord»r costs. [20 Vict. c. 4", 8 87.] DiHSolution of company. [20 Vict. c. 47, 8 93.] Registrar to mnke minute of disRolution of company. [20 Vict. c. 47, 8»4.J Penalty on not rcportingdisHolu tiun of company. [21 Vict. c. 14, 8 20.] Petition to be lis pendens. [11 iS: 12 Vict, c. 4.'i, 8 125.] Power of court to summon be- fore it persons suH|)ecte(l of liaving property of company, A;e. [20 Vict. c. 47, §77.] THK COMPANIES ACT, 1802. tlie coninion liiw sido of lii.s Coiul, or liyii coMiinon or Rpt'cial jmv, lnf„|, till' /liHliccs of ii.s.-ii/.n ill ami for tlic coiuitJL'.s of Cornwall or I) \,iii, ,,1 ;,| nil" Mittiiij^ of one of llu; ."Uiierior courts in Loiiduii or Middlcsi-x, wlii^i, iK'tion or i.s.siie shall ai.'cordin;,dv ]»e tried in due course of law, and without other or further consent of jmrties ; and the finding of the jniy in sudj iiction or issues shall ho conclusive of the facts found, unless tlu^ iii,!.,,. who tried it makes known to the vice-waiilen that he was in it sjitistinl with the tiiidinjj, or unless it njipenrs to the vice-wiinleu that, in inn..,.. (juence of nii.-«cariiaj;e, accident, or the snhseiiueiit di.scoverv of fn-l, material evidence, such tindin<,' ought not to he conclusive. 109. The Court shall adjust the rights of the contrihutoiits nmiiiii;.t themselves, and distril)ute anysui'idus that may remain amongst the mriih entitled thereto (>h). 110. The Court may, in the event of the a.s.sets being iiisiillicicntti satisfy tlie liuhilities, make an order as to the jiayment out of the otaicif the company <'f the costs, charges, and e.xpen.ses incurred in winding m, any comi«iny in such ortler of priority as the (Jourt thinks just (/ii, 111. When the alfaii's of the company have been comi)letcIy Wduiul nji, the Court shall make an order that the company be dis.solved from tli,. date of such order, and the com))any .shall be dissolved accoiilingh lo , 112 Any order so made shall be nported by th" official lii|uiilatoriii the registrar, who .shall make a minute according' Jii his books of ilu dis.solution of such company. 113. If the oHicial litiuidutor makes default in reporting to the ngi.«tnir, in the ca.se of a coni])nny being wound u}> by the Court, the order tliiittk company be dis.solved, he 'diall be liable to a penalty not cxccediiij; llvt pounds for every fn! Majesty, clnipter eleven, and intituled, "An act for the better pruUdiiii of juirchasers against judgments, crown debts, /w 2>■) before it any officer of the company or jiei'son kiiun or .suspected to have in his possession any of the estate or ellVcts nf 1 company, or supposed to be indebted to the company, or any pcrsnn wlwin the Court may deem capable of giving information concerning the tnuli tlealings, estate, or efl'ects of the company ; and the Court m.iy ivcjiiiie (»() See, also, § 165, and ante, pp. 8,J2, 867. Compare § 133 (10), thougli the words are diflferent the meaning is the same. See Bridgewater Navigation Co., 39 Ch. D. p. 21. (n) See, as to costs of winding up, ante, pp. 859 et »cq. (o) See Rules 65—67, and ante, p. 870. {p) This section is rcjiealcd liy.5"t 31 Vict. c. 47. (7) See, also, S§ 117, 127, ICi-I';-, and «'»<<•, pp. 689 et sen. ((•) See Form 64 in the 3rJ Schedalf to the rules. See also 8 165, and antt, pp. 689 et leq. 8rj'2. uum 111" sptciiil jury, \i'X, wlikli I coui-se of law, ami without (iiiding "f ll>^' j'xy i"*"'^^'' cin found, luili'ss tin; ,iiiil;!( 1 tlial lie was ii^t saliM'ml vici'-wariU'U lliat, in ohim- sciiiU'iit tliscovi-iy of fi\-li k; idiulusivi'. the ctmtrilmtorii's aiuuiii-t ly remain ftnioiigsl tUeiwrtii- j a.s:»els lieing iiisutViciintt.i Yinvinent out of tlic olaliMf ,ses" incum-il in winding ii]. (!ouit thinks jui* hwk* »i llif lit in ici)oi'tingtotlieivsistr,\t, y the Court, the order tliat tlw il penalty not exceeding tivc in default. ipany l>y the ("onrt "'-"'•' Ue PP. 689 ft se"l ««"• P89 et leq- 961 Ahpindix v. 25 t& 26 VICT. CAP. 89. — part IV. WINDINCi UP. uiv sucli officer or person to protluce any books, papers, deeds, writings, .roikr documents in his custody or power relating to the company ; and ilanv person so summoned, after being tendered u rtisonable sum for his exiiciiscs, refuses to come before the Court at the time appointed, liaving niliiwrul impediment (made known to the Court at tin; time of its silting, amlidlowtd by it), the Court may caust such person to be ai)prehended, iiiil lirou"ht before the Court for examination ; nevertheless in cases where anv jierson claims any lien on papers, deeds, or writings or docu- i uuiit; produced by him, such producti(jn shall be witiiout i)rej\idice to Mich lien, and the Court shall have juri3dictis as to court .a nr. of vicc-wanlcn of the Stanuaricx. Ilicn, ie'al or (upiitab 3, upon any of the macliinery, materials Itfffctson the mine or on premises occupied by the company in connection Kith the mine, or to which the company was, at the titne of the order, liirirmi/ncw entitled, it shall be lawful for the vice-warden or the registrar Itiiailjudic'ite upon such claim on interpleader in the manner provided by iMtion fcleven of the act pa-ssed in the eighteenth year of tiie reign of her [18 & 19 Vict. Ip^Jiut Majesty, chapter thirty-two ; and any acti(m or issue directed upon c. 32, § 11.] Ifiiih interpleader may, if the vice-warden think tit, be tried in his court, I ir at the assizes or the sittings in London or Middlesex, before a judge l(il line of the superior courts, in the manner and on the terms and con- toions hereinbefore provided in the ca.se of disputed debts and claims of Ifwhtors. 117. The Court may examine upon oath, either by word of mouth or Examination of n written interrogatories, any person appearing or brought before them part'e* by court, ,1 manner aforesaid concerning the afl'airs, dealings, ■. tate, or effects of the l^!^^^''^'" "" ^'' kiaipany, and may reduce into writing the answers <>f every such person, ^ 'J I miuire him to subscribe the same {s). 118. The Court may, at any time before or after it has made an order Power to an-est fcrwindin'' uii a company, upon proof being uiven that tliere is probable contributory f 11- • ti . . -i . /,w I • I . t about to abscond, BUM' fur behevitig that any contributory (t) to sucli company is about to remove or t tlic Uiiitcil Kingdom, or otherwi.se abscond, or to remove or conceal conceal any of inv (if his fronds or chattels, for the purpose of evading payment of call.*. Lis property. f"r avoiding examination in respect of the ail'airs of the company, [21 Vict, c 14 liusf such contributory to be arrested, and his books, pajjcrs, monies, § 11-] icnritics for monies, goods, and chattels to be seized, anil him and them lit safely kept until such time as the Court may oider (it). 119. Any powers by this act conferred on the Court shall be deemed to Powers of court '■ in addition to and not in restriction of any other powers subsisting cumulative. pti-riitlaw or in eijuity, of instituting proceedings against any contri- piory, or the estate of any contributory, or against any debtor of the miliany for the recovery of any call or other sums due from such con- iktory, or debtor, or his estate ; and such proceedings may be instituted :oixliuj;ly. Enforcement of and appeal from orders. 1 120. All orders made by the Court of Chancery in England or Ireland Poj'" to enforce pr this act may be enforced in the same manner in which orders of ""^ *".' ' ^ [20 Vict. c. 47, §60.] |>; ^antc, pp. 689 tt »eq. (u) See ante, p. 692. I') Or alleged contributory. See § 74. |l.C. 8 Q 902 THE COMPANIES ACT, 1802. Apprndix V. Power to order contributoricB in Scotland to pay calls. [22 Vict. 0. §5.] 60, Order made in England to lie enforced in Soot- land and Iro- l.ind (y). \22 Vict. c. (30, i\2.] Mode of dealing with orders to be enforced by other courts. [22 Vict. c. 60, H3.] such Court of Chancery made in any suit ptMuling therein nia) ]»■ infoi and for the puriioses of this part of this act the C(jiirt ul ihe warden of the Stiuinarit.') sliall, in addition to its ordinary jiowers, the same jMtwer of enforcing any orders made hy it as tin- V„\i Chancery in Enghmd lias in rehition to matters witliin the jiiii-iljciii sueii Court ; and for the hist-mentioutd jiurjioses tlie Jnrisdiitidn of vice-warden of the Stannaries sliall be deenievv luntiiiu anmim, in the same way and U> the same eH'i-ct as if they iiait st-vvi consented to registration for execution, tin a charge of six days, of a 1 obligation to pay such calls and interest ; and siu'li decree may bcextij immediately, and no suspension thereof shall be com]ieteiit, ('Xt(|ii caution or consignation, unlc-'s with special leave of the Cmirt or ordinary. 122. Any order made by the Court in England for or in tin.- counn the winding up of a comj)any under this act sh.dl be cnfdnid in .Soitl and Ireland in the Courts that would respectively have had juiiMlidin; respect of such company if the registered (illice of the company liml l situate in Scotland or Ireland, and in the same manner in all n»]Ki.t' if such order ha made by the Ceurt in Scotlan(>wt'rs, lia\.' maile 1).V it a^ t'"' ^'""rl "f ters within the jmi-.lictii.ii 4 iri>o«e*< the jnri^ilictiuii of tli. iieil to he co-exteiisivi' in l.d C'hiUK'ery in Ku'jhnia (/). ecvee has been mw\r in S,vi. irt, it shall hi- coiuiuUiil imI,. the loril ordinary on tlie Kill. piidators of 11 li^l «<'rtiru-.l U liahle in payment of iiny ilk ' the anionnl dm' hy iMili ..n- kvhen the same InHame diie.b :i contrihutories for Viiyinent •< • them resiK'ctiv.ly, willi iut.rM te of five pounds \»-\ .emuiuifll . ettVrt as if they imd i-ev.nlivl X a charge of six days, of a Idl and such decree may W- i^WvMl •; shall he competent, i-xccvl al Deciul leave of the (.'..urtnrl'" u Emdand for or in the cour*..'! , act shall be inforad in S."tW spectively have had ,lunMlMi''M« »\ „mce of theeomp.niyliaaWii L. same manner in iill n^lK'.t- »] ,urts that are hereby iv,,,iir.ii orders, interh.eutors, ana ar.r«,| r in the course of the wni'lmit and and Ireland, and .mVMitf course of windin- uj. a ("W^} :land by the Courts wl.i.l. «v- u- matter of such .omiMny'l tuate in the division oltk I ni. to be enforced, and u. the" der had been n»ade by tl.H. case of a company xvUlmub ' or decix^e made by one Court i^: , as hereinbefore pro videiUmH ■e so ma.le shall be pruduovatoM ■nforce the same, and the H«« •idence of such order, int..-:. ..reupon such last-menti««ea W mav be requisite for cufoivm:-' ne manner as if it 'vere Hk ' orcing the same. (z)SwCityofGla>yov>Banh\^]^ D. 628. 124. RflicariMKs of (n) and appeals from any order or decision made or ;;viii ia tlic luaiter of tin- wimliny up of a couiiiany by aiiyr Court iiavin;,' jurisi>taut l)arristers and recorders in Ireland, and the sheriffs of ctmnlies 1 Sc'itland, shall be commissioners for the purpose of taking evidence ku'lt-i- this act in c;uses where any company is wouml up in any part of the T'litid Kiii;,'doiu ; and it shall be lawful for the Court to refer the whole my part of the examination of any witnesses under this act to any lei-ou hereby ap|iointed coniinis.riioiier, although such commissioner is out tlie juii-idict ion of the Court that made the order or decree for winding I the cijiupuny ; and every such commissioner .shall, in addition to any Nvrol saiuiii.)uing and examining witnesses, and reijuiring the jiroiluc- fon or delivery of documents, and certifying or punishing defaults by htuesses, which he might lawfully e.xercise ivs a [commissiouer of the Vurt of Bankruptcy] (c), judge of a county court, commissioner of bank- As to rehearinga, see ante, p. Zl."), and 748. (c) These words repealed Ijy 38 & 3i> |l') S.e ante, pp. 662, 697 et sej., Vict. c. 66. 3 Q 2 Apprsnix V. .\pl>euls from orders. [11 jj 12 Vict, c. 15, iSS 101 — lo:.', 12.V V.i Vict. c. 108, §;i3.] [18 * 19 Viet c. 32,] .Tudicini notice to lie taken of sit^natare of officers, Ac. [11 & 12 Vict, c. 45, §111.] Special couiuiis- siunois for t,vking evidence. 1 20 Vi.'t, c, §101.] 47, 7 . h 'J I' * 1 r ( "t- ■;■ n.-.' 964 AppiNiiix V. Court may order tlic cxnminiktion of |)erHonK in Scotlund, [12& 13 Vict, c. 108, §21.] AflidiivitR may be sworn, &c., before any competent court or person. [12 & 13 Vict. c. 108, §24. J \F ■ I-,; p: THB COMPANIES ACT, 1802. rupt, anHintQUt bnrrUter, or reconler, or m t\ Hln-rifr of n coimtv, liavi' in nmtter so referred to him all tlnj name jMiwern of rtumiiioiiiii;,' ami cxan ing witiieHsert, and rei|iiiri:i(,' the proihiction or delivery of docuiiRnUi, i pimiHhin)^ defaults hy witnesses, and allowiii}^ eosts uiid char;;iH anl j)en.soH to witn<'»seM, as the Court which made the order for winilin;; the company has ; and the examination so taken slial! Imi rctuiiuij re[)orted to such last-mentioned Court in such manner as it directs. 127. The Court may direct the examination in Scotland of any per for the time Ixing in Scotland, whether a contriliutory of the i(im]iai]v not, in re;,'ard to the estate, dea1in<{s, or affairs of any couipaiiy in i course of beini^ wound up, or in re;,'ard to'i'-.e estate, dealings, or alrai^ any person being u contributory of the company, so far as thr cuiiip,! may be interested therein by reason of his being such contribiitury; j the order or commission to take sucli examination shall bo direitwl tot sheritr of the county in which the person to be examined is residinj; ha])pens to be for the time ; and the shorill' shall summon such pcrsf^n appear before him at a time and place to Ijc si)ecified in the sumiuunsf examination njjon oath as a witness or as a haver, and to priHhiciai books, i)ai')ers, deeds, or documents called for which may be in his po.v* sion or power; and the sherilf may take such examination eitlur orallv^ upon written interrogatories and shall rejmrt the same in writing in t! usual form to the Court and shall transmit with such report the li(«)k papers, deeds, or documents produced, if the originals thereof aiv ivi|uir-^ and specified by the order, or otherwise such co])ies thereof or fxtrad therefrom, authenticated by the sheriff, as may l)e necessary ; and in ta; any person so summoned fails to appear at the time and place specitied, t appearing refuses to be examined, or to make the production runuinij, lii sheriff shall proceed against such person as a witness or haver duly citf and failing to appear or refusing to give evidence or make production uia be proceeded against by the law of Scotland : and the slierilf siiidl entitled to such and the liki' fees, and the witness shall be eiititli'd tosm and the like allowances as sheriO's when acting as conimissioncrs iinA appointment from the Court of Session, and as witnesses and havci^f entitled to in the like cases according to the law and praotici! of Scotlai: if any objection is stated to the sherilf by the witness, either on the grwin of his incompetency as a witness, or as to the production rci|ii:i'td tu made, or on any other ground whatever, the sberiff may, if lie think- report such oVjection to the C'u.L, and suspend the examination of witness until such objection hus been disposed of by the Court. 128. Any affidavit, affirmation, or declaration required to lie awnrni made, under the provisions or for the purpo.ses of this part of this act.n;. be lawfully sworn or made in Great Britain or Ireland, or in any chIoh island, plantation, or place under the dominion of her Majesty in I irti. parts, before any court, judge, or person lawfully authorised *o taki receive affidavits, affirmations, or declarations, or before any "f Majesty's consuls or vie "onsuls, in any foreign parts out of her Maj' ■:.' dominions; and all cc.rts, judges, justices, commissionei-s, and pt-'f*>' acting judicially shall take judicial notice of the seal or stamp or signatii (as the case may be) of any such conit, judge, person, consul, or vkv-m' attached, apj)ended, or su'-Soiibed to any such affidavit, affirmation, declaration, or to any other document to be used for the purposes of il part of this act. , 1802. ihi'i'iff of ii county, liiiv.- in t'l- rs of :*iuuinoiiiiit^ liinl t^Xiiiuii. or (U'livery of (locunuiiU, anl ng costs and clmi ■;;lm an 1 n- luk- till! onliT for wimlin;; n; ) taken hIiuU 1»: ril\iin..l r ch niunner us it ilimts. lion in Scotlunu of any peMi ontril.utory of tlic romiianv-! ulfuirs of any coiniumy in tli. ,lie estntc, dealings, or iitfiii^ • f iipany, so far us tlif ciinip.ii:v bciiiji sncli contritiuldry; ,iiii lination shuli lie dirotwl t"tL' I to Ite examined is rcaiding ut II sluiU suninion such p«rs«n to |,e specified in tlie sumiiumsfi us a haver, ami to iirmluwaiiy for whicli juay be in his p- jch exaiuinatioii cithir orallv.i port the same in writing in tiie ,mit with such report the l"ioli- he orit^inals thereof aiv rii|iuf"i Hich collies thereof or txtra.i may he necessary ; and in «■' ; the time and l>lai'f spwilirtl, t ake the production rciuia-'l, ik a a witness or haver duly ciioL vidence or make production mar land : and the sherill' shidl 1* witness shall he entitled to swk 1 acting as commissioners mid and 1V8 witnesses and haver* ;* .,e law and practice of Scotl*!. the witness, either on the Krm.. I to the jiroduetiun r.'(iuind t^' < ,hc sberitl' may, if he thinks fJ spend the examination of su-l loscd of by the Court. aration required to he swnrn.: poses of this part of this ad ii;j> lin or Ireland, or in any citoj.l linion of her Majesty in J.m.^l lawfully authorised 'o take aii orations, or before any "f J'; foreign parta out of her Mar ;'| ces, commissionei-s, and F^-'l of the seol or stamp "f ^''n"''"'" lage, person, consul, or vice-comu ,y such affidavit. affirmatK^V be used for the purposes ol t^ 25 i^' 20 VICT. CAP. 89. — paht iv. wtNruNo HI' 068 Al'HRHDIX V, |--'0 Vi,;t 17, Voluntary winditiy up n/ tuinininii {il). I2i> A (ompany under tliis act may be wound uji voluntuiily, CiivmngtanceH (I,) Wlienever the jierifKl, if any, fixed for the ing of the resolution authorising such winding up (/i). of v, cea.se to cany on i~ ., .'^ ' '' '' it.. basiiiiMS, exceitt in so far as mav be reouired for the beneticial wiiidiuL' „ .. . , 1 r 1 11 i e <• 'i . . f 1 . -.1 hllcet ot viiluii- up thereof, and all transters ot snares, except Iransiei-s made to or with ^.^^.^. „.i,„iiiiy ud thf sanction of the li voluntiinlv. it-jiects comiianies registereii m Lnglaml m the " London (jazette, as ^ ! h>\xiU companies registered in Scotland in the " Edinburgh Gazette," and I'li^o'i " '^^^ ■ mspect.s companies registeivd in Ireland in the " Dublin iJazctte.'' 133. The following consenuences shall ensue upoji the voluntary winding Coiif-equencus «f I up of a company : voluntary w ind- (1.) The property of the coniiiaiiy shall be applied in satisfaction of '"'> "IJ its liabilities' jmri /.r'.<.si/ (/), and, subject thereto, .shall, unless it l.'^'' ''j'*' *•'• ■*'» he otherwise provided by the regulations of the conijiany, be ■ '' distributed among.st the members, according to their rights and interests in the company : (2.) Liipiidators .shall be appointed for the purpose of winding up the afl'airs of the comjiany and distributing the jiroperty : (3.) The com])any in gt'iieial meeting shall appoint such jieisons or person as it thinks lit to be liquidators or a liquidator, and may tix the remuneration to be jwiid to them or him (in) : |rf) See antt, pp. 874 et stq. (<)See§§51, 53, and 132. (/) See ante, p. 877, and as to |»dr«rtisemcnt ot the resolution, § 132. !<;)See§51. 'ii :*ceantf, pp. 664, 877. (i) See § 153, and ante, pp. 667, 673. {k) See §§ 142, 143, and ante, p. 8.S5. (0 See § 159, and ante, p. 884. (m) Sec §§ 135 ami 140, 141, and ante, pp. 878, et seq. 966 THE rOMPANTES ACT, 1862. Apprkmx V. i"^-) ^f "'"' pt'r«<'" "lily iH ai)ii()int('il, nil the imn-i.-ion" luivin (..n tuiiied in rel'iTciice to si-vcnil linuidutoiH xliail uiijily to liim; (6.) UiMiii tilt! nppointnumt of liiiuiilators, all tlii> |io\\.r nf i],, (lirectoin wliiill censf, except in ho far an tlic ('(>ni|Muiv in (tpnc^ nieetinf? or the li(iuiilutor» may nnnction the coulimiaiac (j| sn,} jiowi'iN : (6.) \Vhen several litiuitlators are a]>pointetl, every power lienliy j;iven may he exeri'ised l>y such one or more of tluiii, as iii„vl,i detemiined at the time of their appointment, m in ilcfaiiJtul mich determination 1)y any immher not less timn twi) : (7.) Tiie li, and for the adjustment of the rights of the coutriliulorie* amongst themsidves ; and the liquidatoi-s may in niakiiif; a e.ill take into ccnsideration the probability that some of tlif contri- h'ltories upon whom the same is made may jjartly nr wliolly fail to pay their respective portions of the same ( }i) ; (10.) The liquidators shall pay the debts of the company, lunl adjust the right of the contributories amongst themsel\-es (7). 134. Where n company Mmited by guarantee, and having a capital divided into shares, is being ^\ound up voluntarily, any share taiiitaltkt may not have been called up shall be deemed to be assets of tlit cji- pany, and to be a specialty debt due from each member to the wmfw to the extent of any sums that may be unpaid on any shares held U him, and payable at such time as may be a]ipointed by the litpiiiiiitiirs (rl Power of com- 135. A company about to be wound up voluntarily, or in the couiv pany to delegate of being wound up voluntarily, may, by an extraordinary ri-,siilutiijn(,,i.«j-> , , 1- 18G2. Hi A 26 VICT. CAP. 89. — part iv. winding up. or.7 ,1 tlip i)r\\ir iif ill,. iir an the cdiiiiiuiiy in (;t'nml iction tlie cduliiiiiaiiic hI'mi'i poiiiti'd, evi'i'y imwur lienby u' or more of tlifin, ns nv.vli.' apimiiitiiu'iit, of ii. ik'l'imlt 'i ■r not li'sn lliiiii twi) ; unjRtioii of the Codif, exitdw u othcial li(Hiiilator((i): iMtweit* licri'iiiliffori' j,'ivin i" ;ontvibiitovii'H of tlio cdmjiiii.v; I irrtHi'J /((«V •.'vidciitf nf ili, jri'in to 1h! coiitrilmtiniisfN): after the passing! of tin; it'^nln. \-, anil bffoic tln-y Imvo a-rt- tH of the conipaiiv, call (ni ,ill ■ the tinu! hi'ui'p' Nt'ttledontlie t of their liahility to piiyal! i satisfy the ilehts and liaiilit:- larges, ami cxpenf-es of wiiiim; the rights of the ('(mtrilmlMnr luidatoi-s may in niakiii'„' a u\\ iliility that some of tlic (omri- in made may partly ov \vli»lly nns of the same {]>) : L'hts of the company, m\ luljii-t ] nongst themselves (7). inirantee, ami havin;,' a capital untarily, any share capital tliai j nu-a to be assets of the cm- each member to the mwym I )aiil on any shares ludd I'V liiu, [ ited by the liipiiilators (r\ voluntarily, or in the mm | an extraordinary n-solution(.'i, ,eeof its creditors, tlieF^verotj ■nd supplying any vucimcies ml a lik-^ resohxtioii enter into any j be exercised by the liiiuidators, sercised; and any ad done I'V d powei-a shall have the mi\ ly. , I ■tween a company about to Del if being wound up voluntjilF,r liffcrent but the meaning the sani ridf/ewater Navigation Co., 39 Cb. 21. See, also, § 90. § 129. ,111,1 its cirditi>r8, shall be l)inding (»i the company if sanctioneil by an (vtniiinlinary resolution (x), and on the creditors if acceded to liy three- fi,iirth.< ill number and value of the creditors, subji-ct to such riglit of aiiiK-al as is hereimifter mentioned, 137. Any creditor or contribiitory of a comjiany that has in manner af(ire.-aid entered into any arrangenu-nt with its creditors may, within three weeks from the date of the completion of such arrangenn-nt, appeal t,i the (.'oint aL^ainst such arrangement, and the Court nuiy thereupon, as it thinks ju>l, amend, vary, or confirm the same (t). 13S. Where a company is being wound >ip V(duntarily, the iiiniidators Ml aiiv eoiitrilmtory of the company may apply to the Court (") in Kii;;- Imd, Ireland, or Scotland, or to the Lord Ordinary on the bills in .SiMjtlainl ill time of vaiation, to iletermine any (lue.stion arising in the natter of such wimliiiy up, or to e.xercist;, as respects the enforcing of calls, or in i-espect ol any other nmtter, all or any of the powers which the Court might exer- ,i* if the company were bi'ing wound u]> by tlie (!ourt ; and tht^ Court ,.r Li'id Ordinary in the ciwe aforesaid, if satisfied that the determimi- ti.n (if .such (luestion, or the ceiiuired exercise of power, will be just ami Kiielieial (x) nniy accede, wholly or partially, to such a))])licatioii, on sucli t'tnis and subject to such conditi ms as the Court thinks fit, or it may make smell other onler, interlocuioi , or decree on .nich application as the Cuiirt thinks just. 13!l. Where a conipn.iy is being wound up voluntarily the liiiui such vacancy may be convened by the continuing liiiuidators, if any, or by any contribntorv of the company, ami shall be rlti'iiiid to have been duly hehl if held in manner prescribed by the regu- I laiioiis of the company, or in such other manner a.s may, on application 'jytlie contiiuiing lii^uidator, if any, or by any contributory of the com- ll'iny, be determined by the Court. 141. If from any cuu.se whatever there is no liquidator acting in the I case of a voluntary winding uiJ, the Cotirt niay, on the application of a jc'atrihutory, appoint a liquidator or liquidatoi's ; the Court nmy also, on I due cause slnnvn, remove any liijuidator, and appoint another liquidator [to act ill the matter of a voluntary winding up (;/). .\i-i'Ki«iiix v. Power of crtvlitor i,i ("(intrilaitory to Ai)i>oal. Power for liqui- ''iitnrs or contri- IiiiIoiIl'h in vo- Inntaiy wiiiJiii;,' up to ai'i'lv to court. [•22 Viet. c. 30, •i 11.) I'liwer of liqui- liiitors to call gonoralniuctiiigs. [21 Vict. c. U. Power to fill up v:iiNiiicy ia liiiuidati>rs. 1 22 Vict. c. (i(t. §15.] Power of court to ajipoint liquidators. («) § 129. ((ISwRuIeSl. (Ill See Rule 51. See ante, p. 615, Imdn to staying actions, &c., pp. 673 IcK}., andp. 8S3. (x) See Gold Co., 12 Ch. D. 77, and Jfeiron'a cote, 15 Ch. D. 139. (y) See Rtile 51, and § 150, and ante, pp. 703, 878. 968 Al'I'KNDIX V. Liqii'.lntors on conclusion of winding up to make an uc- count any Court. [20 Vict. c. 17, rflOr..] Power of ociurt to adopt proceed- ings of voluntary windinj; uj). [21 Vict. c. 14, §19.] THE COMPANIKS ACT, 1862. 142. As soon as tliu affiiiif* of the coin] miiy are fully wouikI hi li(lui(lators shall make up an account .showing the nianncr in wliidi winding up has heen conducted, and the property of tlu; conijianv i|i:y the liquidators; the incctin^,' slw called hy adverti.semenl, spfciiyinj,' the time, phice, and dlijiit (if meeting' ; and such adver'isemeiit shall he ]iul)li.shed one nionlJi at ]U'evi()Usly to the meeting, as respects (•oni])anie8 registered in Eii^'lai the " London (lazetle," 1111(1 as respects c(>ni]p;mies registiMcil in Sen in the " Edinhurgli Oa/.t'tte," and as rcsjiccts companies icj^'j^eii' Ireland in the " J)ul>lin (!a/ette." 143. The liquidators shall make a return to the regis! mr of meeting liaving lieen liehl, and of tlie date at which tin; same wa.-l and on the exjiiration of three months from the date of tlie icgistraii, such ri^turn the company shall be deemed to be dissolved : if llu' lin toi^s make (hd'ault in making such return to the registrar tli( y shall a ])enalty not exceeding five jiounds for (!Vc7y day during which default continues. 144. All costs, charges, and exi)en8e8 properly incurred in the vnliii winding up of a coini)aiiy, including the remuneration of the lic|uiil: shall be ])ayable out of the as.sets of the coni]iaiiy in prinrilv Id ail i claims. 145. The voluntary winiling up of a company shall not be a bai ti right of any creditor of such company to have the same wound \\\> h Court, if the (.'ourt is of cjiinion th.tt the rights of such creditor wi jirejudiceil by a voluntary winding up (z). 146. Where a com])any is in cour.se of being wound up V(.lnnti and proceedings are taken for the purpose of liaving the same wouii by the Court, the Court may, if it thinks fit, notwithstaiidin;,' tli makes an order directing the c(>nii)any to be wound \\\) by the Court viili^ in such order or in any other order for tlie ailoptioii of all or a the jiroccedings taken in the course of tlie voluntary winding up (a]. Power of coiM't to direct volnn- taiy winding up to continue sub- ject to super- vision of Court. [21 Vict. c. 14, §19.] EtTect of petition for contiu nance of winding up subject to supervision. [22 Viet. c. GO, §2.] Windimj up suhject to the siqyervisioii nf the Court (h). 147. When a resolution lias been passed by a company to win voluntarily, the Court may make an order directing that tlie \'ih winding u]) should .■•:!'.tinue, but subject to such sui)ervisiuii of tiic and with .such li''erty for creditors, contributories, or others, to a]] the Court, and generally upon such terms and subject to such cuud as the Court thinks just ('). 148. A petition, praying wholly or in part that a voluntary wiiidi should continue, but snbjeit to tl j supervision of the Court, and winding uj) is hereinafter referred to as a winding up subject to tlic vision of the Court, .shall, for the jnirjiose of giving juri.sdictiou {z) Ante, p. 636. As to how far a compulsory order supersedes a voluntary winding up, see Thomas v. Patent lAonite Co., 17 Ch. D. 250. (o) See Taurine Co., 25 Ch. D. 118, p. 139. (6) See aiUi, p. 886. (e) For form of order, see form in the 3rd Sched. to the Kiiles. who may petition, and as to "or o see Pen y Van Cdliery Co., 6 477. r, 1862. HHUiy aiv fully woiiml u]i, \h 'ing the iniviincv in wliith mi,], •opcrty "f tlui (•(iiiijiuiiy ilispn-t,! ivl iiiwtii'ti "'' tl"' i<">il«iiiy fit iK'l'ore them luul licavin^; anv i|ui(lat()rs ; the lufetiui' slial! W liiiic, iiliice, and (iliitd of mi,], 1h" ])n1)lislieil lint' nidulli at 1.-,h IMinieH irgiHtiTi'tl in Eii;,'laiiil h. imi'iinit's icgistLacd in Scuilui., rsiicila ciiuipunios iv^iskrul it. vluni to the regis! lur of mlIi ati- at which the mww. wiUibH; i )ni the (late of the refjistratiun! 1 to he dissolved : il' tlie lii|ii,ui. to the ve<^istvar they >liall hm V every day during wliiili -uli iroperly incurred in the voluiiij'v remuneration of the liiiuidiv-, I comi'any in priority tn all -'l-; company shall not he a hai tuit, o have the same wound wy liv si- he rights of such creditnr will '- z). J of heing wound u]) v<.l\mtar,lv, ise of having the sanie v^mAz ^ (links lit, notwithstiindiii:,' tkit it I o lie wound up liy the Cijiirt.]K- Y for the iuloption of all or am i lie voluntary winding up {"). \ervision of the Court {h). passed hy a company to wiivi Lrder diiecting that the voluiiijvl [t to such supervision of tlie t'laf ntrihutories, or others, to api'lyH inis and suhject to such tondiUit'l n pai-t that a voluntary wiiulin;: sj pervisiou of the Court, amhvto a winding tip auhject to tlie mM ipose of giving jurisdiction to m {b) See aiUe, p. 886. (c) For form of order, see form Xo.l| In the 3rd Sched. to tlio Rules. ^4 Vbo may petition, and aa to "of»<|«^ I Lo Pen y Van Cdlkry (7o.,6UiJ.I 1477. 2.'> & 20 vu;t. vav. 89. — v.wvr iv. \viNi)iN(i vi\ t'mirt over suits and actions, he deemed to ht; a pi^tition for winding up tk i.oiii|iany hy the (,'ourt ((/). 149. The t'ourt may, in determining whether a company is to be wdunil uj) altogether liy the (.'ourt, or suhject ^o the .supervision of the Ciiiirt in tiie appointment of licpiidator or licjuMdators, iuid in all other matters relating to the winding up subject to supervision, have regard to till' wishes of the ereilitors or coutributories as proved to it by any siiltiiii'iit (viilence, and may dii-ect me(?tings of the creditor or contribu- lorits to he summoned, held, and regulated in such manner as the (Jourt Jin'd.s for the purposi; of ascertaining their wishes, and may ajipoint a wKon to act as chairman of any such meeting, and to report the resuH of >inli meeting to the Court ; in the ca.se of creditors regard sliall be hail to till' value of the debts due to each creditor, and in the ca.se of contribu- tiiries to the number of voles conferred on each contributory ]jy the regu- liiidus of the eom])any («)• 1511. Where any onler is made by the Court for a winding up subjiu't to till' supervision of the Court, the (Jourt may, in such order or in any -iilise(|iieut order, appoint any additional liipiidator or iiipiidators ; anil ,iiiv li([uiPKNI>IX V. Court may liavo rcf^iiril to wialieH of creditors. {•22 Vict. 0. GO, §S 2 & :J. ] Power to court to appoint add!- tiiiiia! lli|iiiiiatoi's ill winding up Mihjeil to suptr- vi.sioM. [•2-2 Vict. c. 60, KflTect of order of court for winding op sulijci't to supci vision. [22 Vict. c. 60, "'i Sec § 85 ; and as to the petition, ! Rules 1—5, and see ante, pp. 654 I*";., anrtp. 673. {(; See, also, § 91, and Rules 45-47. j(/! See. also, §141. 'a) See, as to this section, ante, p. I'' ■ as to the commencement of the Holing up, pp. 664 and 889 ; as to stay- ing ..ctions, &c., p. 674 ; as to dealings with property, p. 666 ; as to transfers of shares, pp. 831 ct scq. ; as to com- promises, &c., §§ 159 and 160. {h) As to how far a compulsory order supersedes a voluntary windii up, sec Tkoniag V. Patent Lionite Co., \1 Cli. D. 250. Appointment in certain ca.scs of voiuntaiy linui- datni's to be ottii-ial liqui- dators, [22 Vict. c. 60, §8.] 970 THE COMPANIES ACT, 1862. Appesdix v. the Court may in such last mentioned onler, oi- iii any subsequent order appoint the voluntary litiuidators or any oi' tliem, either provisjonallv m permanently, and either with or witliout the addition of any otht-i persons, to be ollicial liquidators. Dispositions of proiierty, &c. , after tlio coiii- menceiiicntof tlic winding np to bo veil]. [20 Vict, c. 17, §73.J The lioolcs of the company to be evidence. [20 Vict. c. 47, §81.] Disposal of books, accounts, and documents of tlie company. Inspection of books. [22 Vict. c. 60. §7.] Power of a.ssi{,noc to sue and Ijo sued. Debts and claims of all descriptions to be proved. Sapplementnl 2»'oviswii8. 153. Where any company is being wound up by the Court or sulijttt to the supervision of the Court, all disposition.s of thu property, vSku and things in action of the company, and every transler of sliari'j. of alteration in the s^tatus of the membi'i-s of the company made betwwn tie commencement of the winding up (/) and the order for winding up, shall unless the Court otherwise ordeif, be void (/,). 154. Where any company is being wound up, all books, accountii, and documents of the company and of the licpiidators shall, as bctwiin tlie contributories of the company {I), be in-itmi fade evidence , every transfer of slwiv-, r [i company maiU' liftwifiiik e order for windin- \\\<, M\, I up, all l>ooks, aci.(ium>, ani lidators shall, as l.i-tw.di ib- facie evidence of tlic trutli -i md up under tlii^ act anJi.>] md doctiments of tlu- omixiay ' ill the following way •,tkL-l up hy or sul.ject tu tlie s^tt- irl directs, and wlicw tk com- ch way as the comically k an the lapse of five years iVumtk shall rest on the company, ot iistody of i'uch hooks, acaiimt',1 eason" hat the saiiu>, i.r .my't party or parties claiming to U ,■ winding up a company 1-y tie le Court, the C.mrt may ii^^e litors and contributon^oftke uil thinks just; and any Wl V may he inspected l.y milt si " order of the Court, but Mj L action helonging to tli.-oi.-l [may hring or defend any adu [lis own nanre. ,1 [„>r wound up under this act, ul rclainis against the eomias ' ascertaimd or soun.liv: *l «• a-ainst the comiw.y, a j.*! r of the value of all such ^ Icontingency or souml only « jear a certain valu'J U')- L) As to right of litigant to. W production of these books b?" lidator, see London and lj.r"1 Lk V. Coopci; 15 Q. 15. D. ^'^ ' to) See Rule 58, and <>«(f, P- ''■ \p) See Bales 20-28, and ."(M! 159. The liquidatoi"s may, with the sanction of the Court (7), where thf company is being wound up Ijy the Court or subject to the super\ision of tlic Court, and with the sanction of an extraonlinary resolution (r) of till' iiimiiany, where tlie company is being wound up altogether volun- t.»iilv, jiay any classes of creditors in full, or make such compromise ov mlwr arrangement as the liquidatoi-s may deem expedient with creditors or persons claiming to be creditors, or peraons having or alleging thein- silvf? to have any claim, present or future, certain or coutingi iit, a.^certainid or sounding only in damages against the company, or whercliy the (.omiiuny may he rendered liable (s). IGO. The liiiuidatoi-s may, with the sanction of the Court (/) where the cninpany is being wound up by the Court or subject to the snpervision oftheCiinrt, ami with the sanction of an extraordinary ivsohuion (u) of th,' ,iinipany where the comi)any is being wound up altogt'ther voluntarily, compromise all calls and liabilities to calls, debts, and liabilities capable of asidting in debts, and all claims, whether present or future, certain or o'litingi'nt, ascertained or sounding only in damages, subsisting or sup- j.iswl to subsist between the company and any contributory or alleged ci'iitrilmtory, or other debtor or person apprehending liability to the com- \^\\\. an. I all i[Uestions in any way rehiting to or affecting the assets of \k company or the winding up of the company, upon the receipt of sudi junis, payalilo at such times, and generally ujiou such terms as may be I agreed upiin, with power for the li(|uidators to take any security for the j di^'hargc of such debts or liabilities, and to give comidete discharges in I re-jwct of all or any such calls, debts, or liabilities (.r). Kil. Where any company is proposed to be oris in the course of being I wound np altogether voluntarily, aner may require the liiim dators to do one of the following things as the liquidators may jircfcr' tli.i is to say, cither to abstain fr(«ni carrying such resolution into cHect ort purchase the interest held l)y such dis.scntient menilier at a price to bi determined in manner hereinafter mentioned, such purcha.se-nionLv to l, jiaiil before the company is dissolved, and to he raised by the liiiuiiLitor. in such manner as nuty be determined by special resolution ; nn special resolution shall be deemed invaliil for (he jiui-jjoses of this section liv reasi.t tliat it is pa.s9ed antecedently tn or concurrently with any resulutiDH foi winding n\> the company, or for ai)iiointing litjuidator.-i ; but if an urdtrl^ made within a year for winding up the company by or subject to tliesuptr- vi.sion of the Court, such resolution shall not be of any validity unless it is sanctioned Viy the (."ouit (/(). 162. The price to be paid ftn- the jjurchase of the imerest of any di- sentient member may be determined by agreement ; but if tln' iiuniri di.spute about the same, such dispute shall be setllfd by arbilraliuii, anJ for the inui)osea of such arbitration the provisions of " The com]ttni<-« clauses consolidation act, 184.")," with res])ect to the .settlement nf (!i,,|iiit(.> by arbitration (//), shall be incorporated with this act; and in the u* struction of such provisions this act shall be deemed to be the ^jieciai act, and the '' company " shall mean the company that is being wiiund up, anil any appointment by the said incorporated j^rovisions directed to he iiiaJf under the hand of the secretary, or any two of the directors, may k maJt under the hand of the liijuidator, if (jiily one, or any two or more nf ilir li(|uidators if more than one. 1 0.3. Where any company is being wound up by the Court or siibjttt to the supervision of the Court, any attachment, sequestration, ili.-tiwj, or execution put in force against the estate or effects of the ccmqiauy aftertht ciinimencement of the winding up shall he void to all intents (c). 1 64. Any such conveyance, mortgage, delivery of goods, payment, exetu- tiiin, or othi'r act relating to property as would, if made or dumbvor against any individual trader, be deemed in the event of his bankni])tcvl.j have been made or done by way of undue (jr fraudulent preference nf tit creditors of such trader, shall, if made or done by or against any cnmpant, be deemed, in the event of such company being wound up under thi; act, to have been made or done by way of imdue or fraudulent jireferenct of the creditors of such company, and shall be invalid accordingly {'l- ; aH'l for the purposes of this section the j^resentation of a petition for wimlinj U]) a comjiany .shall in the case of a company being wound u\. by theC.ui! or subject to the supervision of the Court, and a resolution for windini.''Jl the company shall in the ca.se of a voluntary winding up, be deenn'ii' correspond with the act of bankruptcy in the case of an individual traik: and any conveyance or assignment made by any comixiny formed under this act of all its estate and effects to trustees for the benetit of all ;:• creditors shall be void to all intents. 165. Where, in the coui"se of the winding up of any company uiui-: «?,! ! (z) Union Bank of Kiitijston-i(pon' Hull, 13 Cli. D. 808. (a) See, as to transfers of business under §§ 161 .ind 162, ante, pp. 711, 882, and 894. {b) Si 9 Vict. c. 16, §§128-13t, ((•) See, also, §§ 84, 85, 87, 19", !»•'• 201, 202, and see aide, pp. 671 «(«; {' liiiuidatnt- )ecial resolution ; nu special [)0S(.' i)f this section livroaS"!! ;ntly with any it-riulutidii (juiiUitovs; Vtut it' an onliiU: ly by ov subject to the super- ,t be of any valiJity unlcs it ise of the inteiot nf any di- rveement ; hut if the partiri be setth'il hy avbitnitiuii, iul rovisiou^ of " The coiiii>,uii,- ;t to the settlement nf iU^p\r,.- ith this act ; and in tlie vu- i deeine.! to be the special act, ly that is being wound up. aul ivovisions directed to lie i:.ii' ) of the directors, may be ma.l ,ne, or any two or move "f tW id up bv the Court or s«l)jtit ment, setpesti-ation,di>tvesN«;r elf ects of the company after the void to all intents (f). livery of goods, payment, ex«ii- 'w(mld, if made or duii.liv.il , the event of his bankrupt.vt.. ,n- fraudulent preference ..( tk one bv or against any cnrapaty, IV being wound up under tte "undue or fraudulent preference I be invalid accordingly v^.aiH alion of a petition for win.lin? nv being wound up liytlieCim 'and a resolution for wimlm;:«f ;,tarv winding up, be deeiueatJ ^be case of in> individual tnvUI bv any company ioum\ m^ ;,.U8teesforthebenehto{alht.| [ding up of any company urJj LfegVictc. 16,§§128--W l.)Sce,also,§§84,85,87,19ol-f I 202, anJseea»«', PPWI'"" \l) See ante, p. 608. this act, it appears that any past or present director, manager, olhcial, or Appendix V. other liquidator, or any officer of such company, lias misapplied or re- "^ "TTT tained in his own hands or liecome liable or accountable for any monies ,,u'ent dircctor.i of the company, or been guilty of any misfeasance or breach of trust in and officers. relation to the company, the Court may, on the application of any li(iiii- ilatnr, or of any creditor or contributory of the company, iiotwithstandiiig that the offence is one for which the offender is criminally responsible, txamine into the conduct of such director, manager, or other officer, and compel him to repay any monies so misapplied or retained, or for whi<;li h,. hii? become liable or accountable, together with interest after such rate i< the Court thinks just, or to contribute such sums of money to the a,"ets of the company by way of compensation in respect of such misap- plication, retainer, misfeasance, or breach of trust, as the Court thinks i:i-t ie). ICG. If any director, officer, or contributory of any company wound up Penalty on under this act destroys, mutilates, altei's, or falsities any books, papers, writings, or securities, or makes or is privy to the making of any false or idiilent entry in any register, book of account, or other document be- f _« . -ing to the company with intent to defraii-l or deceive any person, falsification of books. [20 Vict. c. 47, trail' Ion; tv.ry person so offending shall be deemed to be guiity of a misdemeanor, and upon being convicted shall be liable to imprisonment for any term not txceeiling two years, with or without hard labour ( ^ ). 167. W'iiere any oi-der is made for winding up a company by the Court Prosecution of rr -uliject to the supervision of the Court, if it appear in the course of ''•^''"1"''"* "'' , ■ . ,. ', . . , f \ m rcctor.s, etc., in -iich winilmg up that any p^ast or jnesent director, manager, officer, or .j ^^^^ ^f wind- member of such company has been guilty of any offence in relation to the i„o up by court. Miiipuiy for which he is criminally responsible { Vict. c. 131, § 20. 1862. 25 & 26 VICT. CAP. 89. — part v. registration, etc. 976 rules. make rules coiuiiiiiii;; tW ip a conipaiiy in lliu Cuun .,f ere maile the -iencial ina^ liv practice hitlievto in ii- in same was apiiU'alili-' ami ii"t •oceedings for wimliii;; up i ay make such luli's luiiti-ni- sary hy act of sc.k'iuiit ; kt, ce of the Court of Session la he same is aiipli-Ml'l^' ini'l :• ' )rocee(lins« f^i' wiiMiii;; ir,^ ,. all resjiects be consiiU-wl i« n a hauknipt estate uiy, from time to liiuo.wnliiu ■e'cf the act of .•i:Jiir,iiti, >' can-yin^ into etlecl tin- 1"« •■ e Yice-wartleu ; hut, "t "n such direction au.l or Jev "lite I L,y investment in -o\mmm;' le same power of uui'vi'-i!'^ . )rd eihancellor of Cr.'.;: 1^ •■ - tl practice of the Counoil;.. hitherto in use in Ii'^'l^'"" I c. r.9; but the rales in i1k •\;j ulix are still in force. I 7) Rules have been i>^suea un.ler v^ turn, but they are not iM'intea in ij ,Bent work. Thoy arc imlW..^ '* jvens and Sons. An>l ^^"^ 3" ' ct. c. 131, § 20. winJing up companies, shall, so far as the .same is applicable ami not Appendix V. iiKon.?i.''tent with this act, apply to all proceedings fur windin;.^ up a company. PART V. ni:(iisTUATiox office. 174. Tlie registration of companies under this act shall be conducted as Constitution of lullows (that is to say) ; — re.L!i^stration [\.) Tlie Board of Trade may, from time to time, appoint siuh regis- ""^'^'^• trars, assistant legistrars, clerks, and servants as they may tliink [-'^Y'*^^'- *^' ^^' necessary for the registration of companies under this act, and ^ ' remove them at pleasure : (2.) The IJoard of Trade may make such regulations as they think tit willi respect to the duties to lie performed by any such ivj,'istrars, assistant registrars, clerks, and servants as aforesaid : (3.) The Board of Traile may, from time to time, determine the places at which otlices for the registration of companies are to be cstublislu'd, so that there be at all times maintained in eacli of the tliree parts of the United Kingdom at least one sucli ()Hice(»i), and that no company shall be registered except at an iijlice within that part of the United Kingilom in which, by tlie iiieiiiiirandum of association, the registered ollice of the company isih'clared to be established, and the board may re([uire that the registrar's ollice of the court of the vice-warden of the .Stannaries shall be one of the ollices fur the registration of companies formed for working mines within the ji'.risdiction of the Court : (4.; The Board of Trade may, from time to time, diieet a seal or seals to be prepared for the authentication of any documents required for or connected with the registration of companies : (5.) Every person may inspect the documents kept by the registrar (jf joint stock companies ; and there shall be \kiu\ for such inspec- tion such fees as may be appointed by the Board of Trade, not exceeding one shilling for each inspection ; and any person may require a certificate of the incorporation of any company, or a Copy or e.\ tract of any other document or any part of any other document, to be certilied 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 hve sliillings for the certificate ot incorporation, and not exceeding sixpence for each folio of such copy or extract, or, in Scotland, for each sheet of two hundred words : (6.) Tlie existing registrar, assistant registrars, clerks, and ntlier otficers and servants in the otiice for tiie registration of joint stock companies shall, during the pleasure of the Board of Trade, hold the otKces and receive the salaries hitherto held and received (»i| The lioard of Trade has, by an Stannaries to be registered in the Court |itltr dated tlm 14th Feb. 1863, directed of the vice-warden. Wuranies for workini; niinos within the 1 M B M i)>u ^,c< if li 976 Appendix V. )■■-. THE COMPANIES ACT, 1862. by them, but tliey shall in the execution of their duties confi^r to any rej^uliitions that may be issued by tlie Tjoaid of Tiiuli. : (7.) There shall be paid to any reyistrar, assistant registrar, uiirk i servant that may hereafter be employed in the registration ( joint-stock companies, such salary as the Board of Tnuie nia\ Avith the sanction of the commissioners of the Treasury, dirwt (8.) Whenever any act is herein directed to be done to or by ih registrar of joint-stock companies, such act shall, until th Board of Trade otherwise directs, be done in England to or \,i the existing registrar of joint-stock companies, or in hk alanc' to or by such person as the Board of Trade may f ir the tiini being authorise, in Scotland to or by the existing rt'yistrar oi joint-stock companies in Scotland, and in Ireland to or by the existing assistant registrar of joint-stock companies for IreLmJ, or by such person as the Board of Trade may fur tlie tiino \mm authorise in Scotland or Ireland in the absence of tlie registrar; but in the event of the Board of Trade altering the constituiiuii of the existing registry office, such act shall be done to or k such oificer or olHcers and at such place or places with refurtni.c to the local situation of the registered olTices of the companies w be registered as the Board of Trade may appoint. PART VI. f I- ■^< m Definition of Joint stock com- panies acts. Application of act to companies forincd under joint-stock com- panies acts. Hi!' mi APPLICATION OF ACT TO COMPANMES REGISTI';RED UNDER THE JOINT-STOt COMPANIES ACT. 175. The expression "Joint-stock companies acts" as used in this act shall mean " The joint-stock companies act, 1856," "The joint-^^tock com- panies act, 1856, 1857," "The joint-stock banking companio.'< act, 1857,' and " The act to enable joint-stock bunking companies to be fornicd on the principle of limited liability," or any one or more of such acts, as the a* may require ; but shall not include the act passed in the eighth year of the reign of Her present Majesty, chapter one hundred and ten, and intitiih " An act for the registration, inc(jrporation, and regulation of juiut-stock companies." 176. Subject as hereinafter mentioned, this act, with the exception' table A. in the first schedule, shall ajjjdy to companies formed and ri';.'i= tered under the said Joint-stock comj)anies acts, or any of them, in i!.i same manner in the case of a limited company as if such company been formed and registered under this act as a company limited by sliaKs, and in the case of a company other than a limited company as if .-uck comi)any had been formed and registered as an unlimited company under this act, with this qualification, that wherever reference is made exprtssk or impliedly to the date of registration, such date shall be deomeil to refer to the date at which such companies were respectively registered undortie said Joint-stock companies acts, or any of them, and the jiower of altering regulations by special resolution given by this act (n) shall, in the at of any company formed and registereo in the case of an unlimited company formed and registered jis list 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 (o). 177. This act shall apply to companies registered but not formed under the said Joint-stock companies acts or any of them in the same manner as ii is hereinafter declared {}i) to apply to companies registered but not formed under this act, with thi.s cpialilication, that wherever reference is made expressly or impliedly to the date of registration, such date shall be deemed to refer to the date at which such companies were respectively registered under the said Joint-stock companies acts, or any of them (7). 178. Any company regi-^icred under the .said Joint-stock companies acta, Mode of tnina. urany of them, may cause its shares to be transferred in niuimer hitherto ferring aliare-s. in use, or in such other manner as the company may direct. A'-plication of act to coniitanic!! regiBtered iiniler Joint-titock com- panies HCts. PART VII. COMPANIES AUTHORISED TO REGISTER UNDER THIS ACT. companies. (2.: 179. The following regulations shall be observed with respect to the Regulation* an j te;,'istratioti of companies under this part of this act ; (that is to say,) to registratioa (1.) No company having the liability of its members limited by act existin.^ ol Parliament or letters jjatent, and not being a joint-stock com- pany as hereinafter defined (r), shall register under this act in pursuance of this part thereof : No i;ompany 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 hereinafter defined (r), 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 a-ssent t78 Al-PRNIIIX V. Cuni]>anieN capii' ble of beiiy registered. [21 Vict. c. 14, S20.] Definition of joint-stock company. Proviso fts to liunking com- I>.iny. [•J'2 Vict. c. 01, gl.] Requisitions for registration by companies. THE COMI'ANIKS ACT, 1802. Bame being wound vip, during tlie tinu' that lie is a nii'mliorni within one year al'tcrwards, for payment of the th'hh mid liuhili tics of the company contracted before the time nt wliich lieoonfeil to bo a member, and of tlie coHta, charges, and cxpcibc^ „| winding up the company, and for the adjustment ol the ri;^lit< of the contributorie.s among.^1 tliemselves, such uniount n« niav he required, not exceeding a H])ecified amount : In computing any majority imder this section, when a ixill is (Idiiiindpil regard shall be had to the number of votes to Mhich each nicnilitr u entitled according to the regulations of the company of wliich lu; j* a menilu^r. 1 80. With the above exceptions, and subject to the forc^(jinj,' iv^-ula. tions (*•), every company exi.sting at the time of the coninicncinwnt 4 this act, including any company registered under the said .loint-stiKi C()mi)anie8 acts ((), consisting of seven or more members, and any cdinjiimr hereafter formed in jiursuance of any act of Parliament other tiian thh net, or of letters patent, or being a company engaged in wnrkin),' iiiine* within and subject to the jurisdiction of the Stannaries, or licin;^ ntlnrwiv duly constituted by law, and consisting of seven or more nicinbcrs, mayai any time hereafter register itself under this act as an unliniilcil conipanv or a company limited by shares, or a company limited by guaniiitec; ani no such registration shall be invalid by reason that it has tnken iilaccwii a view to the com])any being wound up. 181 . For the jnirposes of this part of this act, so far as the sanio nlati to the description of com])anies emjiowered to register as fuinpaniei limited by shares, a joint-stock coni])any shall be deenitd to be n i:m]m\ having a permanent paid-up or nominal capital of fixed amount, diviti into shares, also of fixed amount, or held and transferable as stofk, divided and held partly in one way and ]»artly in the other, and fomie'l on the principle of having for its members the holders of shares in suih cajjital, or the holders of such stock, and no other person.^ ; and siicb company when registered with limited liability under this act sliall l< deemed to be a company limited by shares («). [182. No banking company claiming to issue notes in the Vi Kingdom shall be entitled to limited liability in respect of such issue, shall continue subject to unlimited liability in respect theieof ; and, if npt- sary, the assets shall be marshalled for the benefit of the general creditors, am the members shall be liable for the whole amount of the iissue, in addition ti the sum for which they would be liable as membera of a limited coinpanv (i). 183. Previously to the registration, in pursuance of this pait nfil act of any joint-stock company (?/), there shall be delivered to the registra the following documents (that is to say,) : — (1.) A li.st showing the names, addresses, and occupations of allixi sons who on a day named in such list, and not being mi than six clear days before the day of registration, were numl^i of such company, with the addition of the shares held by fu ■III (5) See, also, §§ 182—184, and 188. (0 The act applies to tliem, even though they do not register. See §§ 176, 177, and ante, pp. 113, 116, and 617. (u) See ante, p. 116. (x) This section was repealed 1)J - ,K.fit of the general croawj noiint of the issue, ma limited by some other act of Parliament or by letters ])atent, 190. Any company authorised by this part of this oct to register wi limited liability shall, for the purpose of obtaining registration with limiuil liability, change its name, by adding thereto the word "limited." 191. Upon compliance with the recjuisitions in this ])art of this contained with re.spect to registration, and upon payment of such l«.-, any, as are payable under the tables marked B. and C in the fu-st dule hereto, the registrar shall certify under his hand that tliu ci)mi4iiv so applying for registration is incorimrated as a company undi.T this , id and, in the case of a limited comi)anv, that it is limited ; and tlnreupB such company shall be incorporated, and shall have per|)etuiil succestion and a common seal, with power to hold lands ; and any bankiiii^ loinpaur in Scotland so incorporated shall be deemed and taken to be a Iwnk incor- porated, constituted, or established by or undei act of ParliaiiU'iit(/). 192. A certificate of incorporation given at anytime to any cumpaif registered in pursuance of this part of this act shall be coiicluHive tviJtiiu that all the requisitions herein contained in respect of registratinn uiiiit this act have been complied with, and that the company is autliorised be registered under this act as a limited or unlimited company (<;;, a; tt case may be ; and the date of incorporation mentioned in such ccrtilicji shall be deemed to be the date at which the company is iiicorporafc under this act (A). 193. All such property, real and personal, including all intensts rights in, to, and out of property, real and personal, and includiii;; ollip tions, and things in action, as may belong to or be vested in tlic idiiii. 111. {%) See ante, p. 263, note [<■)■ 25 it 26 VICT. CAP. 89. — part VII. REGI-XnATION, ETC. 981 loual, iucludinfi '^" 't „, i personal, ami inclu.ln.i;^'Uf ■^to or be veBteJ in tUe •^^">"P act, shall on u.gistnUion la- under this act lor all tbe this part of thU act ot any j ability of such con.pu.y u> k"! any debt or oblif^id'"" i"^" 94, andante, p. n2. ■""'*",, ■tilifate, «n(c, p. HI- (i, Pee au,'al iiriMci'.linj^'s as may at the (Jontimcilion of ijiiii; lit lilt! registration of any ccmipany n';^iMti'i('il in jiurnuance of this •"'''•''"K 'i''ti<'ni< iHirt III' thi^ act iiave been coninicnccd l)y or against such company, or the ""'' *""*• |,ulilK iittictT or any member thcrfnC, nmy be continued in the same f20 Vict. e. 47, minniT as if such registnition had not taken place ; neverlhcles.s cxecu- yv!*'' "Jo ^^ li.iii shall not issue against the elfeels tif any individual member of such g lo'j" ' ,„iiiiirtiiy ii;»'n any judgment, decree, nr unhT obtained in any action, •nit, iir jiroceeding so commenced as afnresaid ; but In the event of the |irii|n'ity and effects of the enmpany being Insutliclent to satisfy such jiuljj'iiiunt, deiTee, or order, an order may be obtained for winding up the I .iu|iany (/). 11)0. Wia-n ft comi>any is registi-red under this act In pursuance of this HflTect of icyls- |ait llnrciif, all provisiims contained In any act nf Parliament, deed uf '■''"*'o"' any registered as a comi)any limited by guarantee, ihe resolution declaring the amount of the guarantee, shall lie deemed to Ik' ennilitlons and regulations of the conijiany, in the sani! manner and ivith the sftme incidents as if they were contained in a registered memo- • mluia of association and articles of association ; and all the provisions if this act shall apply to such company and the mendjers, contributorles, ,mil creditors thereof, in the same manner in all respects as if it had been f riuetl under this act, subject to the provisions following ; (that is to (1.) That table A. in the first schedule to this act shall not, unless adopted by special resolution, a])ply to any company registered under this act in pursiuuice of this part thereof : (2.) That the jirovisions of this act relating to the numbering of shares (m) shall not ajjply to any joint-stock company whose shares are not nundjered : (.t) That no company shall have power to alter any provi-ion con- tained in any act of Parliament relating to the company : (4.) That no company shall have power, witliout the sanction of the Board of Trade, to alter any provision contained in any letters patent relating to the com)iany : (5.) That in the event of the ccnnpany lieing woimd up, every person shall l)e a contributory, in respect of the debts and liabilities of the company contracted prior to registration, who is liable, at law or in eciuity, to pay or contribute to the payment of any debt or liability of the company contracted prior to registration, or to pay or contribute to the payment of any sum, for the adjustment of the rights of the members amongst themselves in respect of any such debt or liability ; or to pay or contribute to tlie payment of the costs, charges, and expenses of winding up the company, so far as relates to such debts or liabilities as aforesaid ; and every such contributory shall be liable to con- tribute to the assets of the company, in the course of the winding up, all sums due from him in respect of any such liability as aforesaid ; and in the event of the death, bankruptcy, or insol- (i) Sie ati^if, p. 127. (I) See ante, pp. 262, 263. (m) § 2-2. i jh^ J.l^fp 982 Apprndix V. Power of court to restrain fur- ther proceedings, [20 Vict. c. 47, S84.] Order for wind- ing up company, [20 Vict. c. 47, §73.] Winding up of unregistered companies. 11 & 12 Vict, c. 45, S§l-3.] THE COMPANIES ACT, 1862. vcncy of any such contiibutory aa liist aroresaid, or iiiari'agt; any such contributory being a female, the provisions herd before contained with reajjcct to the representative.", heirs, ai devisees of deceased contributories, and with reference to t assignees of bankrupt or insolvent contributories, and to i husbands of married contributories, shall apply (n) : (6.) That nothing herein contained .shall authorise any cuniiwiiv alter any such provisions contained in any deed of .•scttlwiiu contract of co-])artnery, co.st-book regulations, letters imtiiit, other instrument constituting or regulating the coiiipaiiy, would, if such company Iiad been originally formed uiidir tli act, have been containe•). PART VIII. APPLICATION OF ACT TO UNREOISTERED COMPANIES. 199. Subject an hereinafter mentioned, any partnership, associatiiH', company, except railway companies incorporated by act of Parliament ( cimsisting of more than seven memlici-s, and not ri;gistered under tlii- and hereinafter included under the term unregistered company (t), nuo (n) See §§ 74—78, 105, 106, 200, and ante, pp, 751 ct seq. ; pp. 81ti et seq., and 859 ; and as to Industrial and Pro- vident Societies, ante, p. 916. (o) As to the power of a company re- gistered under tliis act to alter its memo- randum of association, sec § 12 ; and as to its power to alter its articles of atsoci- ation, see §§ 50 and 176. ip) See §§ 85, 195, W, and a § 201, ante, pp. 672 et acq., an.l W. {q) See §§87 and 196. (r) See §§ 195 and 202 ; and see 17. This definiuon includeB con.p'"«l ffoimd up rmder this act ; and all tlie provisions of this act with respect to Appendix V. wiiiiling up shall apply to such cijinpany, with the following exceptions iUid additions («)• (1.) An unregistered company shall, for the purpose of detennining the Court h.'ving jurisdiction in the matter of the winding-up, lie deemed to lie rv-^.oicred in that part of the United Kingdom where its jirincdpal place of business i.s situate ; or, if it lias a principal jdacc of business situate in more than one part of the United Kingdom, then in each part of the United Kingdom where it has a principal place of business ; moreover the prin- ci[ial place of business of an unregistered company, or (where it has a prhicipal place of business situate in more than one part uf the United Kingd(im) such one of its ju'incipul ])laces 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 wiiuling up of such company be deemed to be the regis- tered oHice of the company : (2.) No unregistered company shall be wouiul up under this act voluntarily or subject to the supervision of the Court (.<;) : (3.) The circumsttmces under which an unregistered company may be wound up are as follows (y) : (that is to say,) (((.) Whenever tiie C(jinpany is dissolved, or has ceased to carry or bu.sine.ss, or is en frying on business only for tin- purpose of winding up its att'airs ; (li.) Whenever the company is unable to pay its debts ; (c. ) Wlienevei' the Court is of ojiiniou tliat it is just and eiiuitable that the company sliould be wound up : (4.) An unregistered company shall, for the purposes of this a.ct, be [i') Viet. c. 47, deemed to be unable to pav its debts (••), ? *'?;.'^"'' ^1-* 12 Vict C 4.> (a.) Whenever a creditor to wdiom the company is indebted, « 5 i ' ' ' at law or in etjuity, by assignment or otherwise, in a ' sum exceeding tifly pounds then due, has served on the compiUiy, by having the same at the principal place of business of the cMupany, or by deliverhig to the secre- tary or some director or principal ottii A the company, or by otherwise serving the same in such nuuiner as the Court may approve or direct, a denuind under his hand re([uiring the company to pay the sum so due, and the company has for the space of three weeks succeeding the service of such deniuul neglected to ]iay such sum, or to secure or cojupound for the sanu> to the .satisfaction of the creditor : {b.) Whenever any action, suit, or other proceeding has been instituted against any member of the company for any debt or tlemanil due, or clainu'd to be due, from the company, or from him in his character of member of the comiiany, and notice in writing of the institution of Irsgistered under the acts of 1856— ISuS ; Societies, (inte, pp. 916 it neif. ■bit sw as to 5ucli companies, siqtra, §S (//) Seo ante, pp. 628 ct scq. 111?, 1(7, and auU; p. 617. (2) See, as to registered companies, iiS lit) Sw ante, p. 617. 79, 80, and ante, p. 628. (') See, as to Industrial and Provident * *^3^ i M" "* ijT* 984 Al'PRNDIX V. Wlio to I'o deemed coii- tributories in tlio event of company being wound i\]'. [11 & 12 Vict, c. 4r,, §3.] Power of court to restrain THE COMPANIES ACT, 1862. Bucli action, suit, or other legal proceedinr; Laving bee: served upon the company bj' leaving the same at tli principal place of business of the company, nr Ijy Je livering it to the secretary, or some director, iiianagH or principal otlicer of the company, or by utliciwi;, serving the same in such manner as the Cuuit ma; approve or direct, the company has not within ton dav: after service of such notice paid, secured, or conipoundtii for such debt or demand, or procured such actiim, fuii or other legal proceeding to be stayed, or indeimiilin] tlie defendant to his reasonable satisfaction against suii action, suit, or other legal proceeding, and ngainst all costs, damages, and expenses to be incurred liy him Iv reason of the same : (r.) Whenever, in England or Ireland, execution or other pfr cess issued on a judgment, decree, or order obtained in any court in favour of an^ creditor in any piopcediiisrai law or in equity, instituted by such creditor against tlo company, or any member thereof as such, or against anv person authorised to be sued as nominal dilendant on behalf of the company, is returned unsatisfied : (d. ) Whenever, in the case of an unregistered company cngajieil in working mines within and subject to the juvisiiii'tion of the Stannaries, a customarj- decree or order ahsolute for the sale of the machinery, materials, and cdwt; such mine has ))een made in a creditor's suit in the court of the vice-warden ; (c) Whenever, in Scotland, the huhicicc of a charge for p. ment on an extract decree, or an extract registered KnJ or an extract registered protest, have exjiired withri; payment being made : (/.) Whenever it is otherwise proved to the satisfacliir. the Court that the company is unable to pay its del't-. 200. In the event of an unregistered company bi-ing wound upiverr person shall be deemed to be a contributnry wlio is liable, at law 'T ia equity, to pay or contribute to the i)ayment of any debt or lialdlity 'ftle company, or to pay or contribute to the payment of any sum for the justment of the rights of the members amongst themselves, (irtojayri contribute to the payment of the costs, charges, and expenses of wiiiiliiij up the company ; and every such rontriliutory shall be liable to uontriliati to the assets of the company in the co\iise of tlie winding up all suHi>ilii( from him in respect of any such liability as afuresaid ; but in the evfii of the death, bankruptcy, or insolvency of any contril)utory, or niarriaj of any female contributory, the provisions hereinbefore contained «it respect to the personal representatives, heirs, and devisees of a dece* contributory, and to the assignees of a bankrupt or insolvent coiitriiniM and to the husband of- married cortributories, shall api)ly (ff\ 201. The Court may, at any time after the presentation of a ff'''' for winding up an unregistered company, and before making an order winding up the company, upon tlie application of any creditor of thee (a) See §§ 74—78, and 105, 106, 857 ; and as tolndustrial and Pronis § 196, cl. 5, and ante, pp. 752, 819, Societies, ante, p. 916. 1862. 25 & 26 VICT. CAP. 89. — part xiii. unregistered companies. 985 ■gal proceeding having ktn by leaving the same at lli« ; of the comiiauy, «r Ijv dr- jr, or some tlivectuv, iiianap-r, company, or liv Mtliww;... manner as thi' t'ouit iiwy pany has not within ten ilav^ paiil, secured, or conipouiianl ,r ])rocured such acti(in, suit. to he stayed, or indenniiti.-l lahle satisfaction against .vA 1 proceed infi, and iigain»t nil jes to he incurred Viy him 1 y reland, execution or other p- 1 it decree, or order obtained it ^ creditor in any prococ'(liii;j ai ■d l.y such creditor against tly thereof as such, or against am I ued as nominal dd'entlaiit mi| returned unsatisfied : a unregistered company cnfap;-. I and subject to the juri.v.ri l„rvvvhoislialde,allaw>j™ ,t ofanvdehtorlial.ihty.ity ,avment of any sun. for the adj inongst themselves, or to v,iyrr harf^es, and expenses of vmiw orv shall be liable to contnl^i thewindin;^ up all suiip'liU ... af-.resaid ; but in th. (Vfl ,f a,iv contributory, or mama „. hereinbefore coutaine.l 'r.a Its, and devisees of a deoi ,krupt or insolvent contnhutoirj •ies, shall apply ("''■ ■r the presentation of a reti>-i and before making an order ■' ation of any creditor of the c.« and as to Industrial and ProTil"! eties, ante, p. 916. raiiy, restrain further proceedings in any action, suit, or proceeding against iiiivcontvihutory of the company, or against the company as liereinl)efore iifuvided (''^ upon such terms as the Court thinks fit Appendix V. further pro- ceedings, [20 Vict. c. 47, S84.] Ktroct of order for winding up company, company, except with the leave of the Court, and subject to such [20 Vi,t. e. 47, § ^3,] ■102. Where an order has been nuule for winding up an unregistered lOiiipany, in addition to the provisions hereinbefore contained in the case ,if companies fcjrmed under this act (c), it is hereby further provided that 110 suit, action, or other legal proceeding shall be commenced or proceeded wiih against any contributory of the company in resjiect of any debt of tenus iVi the Court nuiy impose. 203. If any unregistered company lias no power to sue and be sued in a t'immon name, or if for any reason it appears expedient, the Court may k the Older made for winding up such company, or by any subsecjuent (Tiler, 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 coni- lanv, or to or in any ])erson or persons on trust for or on behalf of the CMnipany, or any part of .such projierty, is to vest in the official li(iuidatiir or official li(iuidators {il) by his or their olficial name or names ; and therc- iqiou the same or such part thereof a.s may be sjiecified in the order shall ve.?t acciirdingly ; and the official liquidator or official litjuidators may, in Ms 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, '•ii',», or other legal proceeding relating to any property vested in him or I'liia, or any action.s, suits, or other legal proceedings necessary to be kwight or defendi'd for the purpose, of effectually winding up the company iiid recovering the property thereof (^e). 204. The provisions made by this ])art of the act with respect to un- Injistcred companies .2. 1 This does liOt render the liquidators ptrsonally lialilo, (Iraham v. Edge, 20 Q. 1). D. 683. (e) See ante, pp. 70.5 et seq., &c. (/) As to the scope of this section, see Rxidovi v. Great Britain Mutual Life Asa. Society, 17 Oh. D. 600. 986 Appendix V. Repeal uf uctu. Saving clause om to repeal. Saving of exist- ing ijrocccilings for winding uji. Saving of convey, iinces, &('. Compulsory re gistration of certain com- panies. THE COMPANIES ACT, 1862. PART IX. HKl'KAL OF ACTS, AND TEMPORARY I'ROVISIONB. 205. After the eonimenceiuent of this act there shall be lepealed tlit seveiiii acts specified in the first part of the third schedule hereto, with tlii, qualilication, that so much of the said acts ivs is set forth in the secoitl part of the .said third .sciiedule shall be iiereby re-enacted and coiitiiuie in force as if unrepealed ((/). 206. No repeal herel)y enacted shall att'ect (/(), (1.) Anything duly done under any acts hereby repealed : (2.) The incorporation of any company registered under any act herel)y repealed : (3.) Any right or privilege acquired ur liability incurred iuhIlt anv act hereby repealed : [(4.) Any penalty, forfeiture, or other punishment incurred in vt:>\Kd of any otfence against any act hereby repealed : (t)] (5.) Table B. in tlie schedule annexed to the Joint-stock comiwiik^ act, 1856, or any part thereol', so far as the same apiilics to anv company existing at the time of the commencement of tlii- act {k). [207. Related to the winding up of companies under an order niadcMr a resolution passed before the act came into operation (/).] 208. Where previously to tiie commencement of this act any convey- ance, mortgage, or other deed has been nuule in pursuance of any ad hereby repealed, such deed shall be of the same force as if this act hailii"t passed, and for the pur]ioses of such deed such repealed act shall he deem • to remain in full force. 209. Every insurance conipauy euuipletely (/«) registereassed in the eighth year of the reign of her present Majesty, chapter oik liundred and ten, intituled " An act for the registration, imorporatioii, and regulation of joint-stock companies," shall on or before the second iLiv of November, one thousand eight huudnd and sixty-two, and every otlii-r company required by any act liereby repealed to register under the Mil joint-stock companies acts, or one uf such acts, and which ha.s not ■" registered, sliall, on or before the expiration of the thirty-fust day frin llie commencement of this act, register itself as a conq^auy under tlib act, in manner and subject to the regulations hereinbefore contained (« l. witli this exception, that no company completely registered under the d\ act of the eighth year of the reign of her present Majesty shall be reiiuirni to deliver to the registrar a copy of its deed of settlement ; and fur (y) See §§ 170-17.3. (/() SeertH/r, p. 129. (i) Sub-section 4 is repealed l)y 38 & 39 Vict. c. 66. (k) See § 176. (I) See West Silver Bank Mining Co., 32 Beav. 226 ; Fire Annihilator Co., ib. 663. This section is repealed by 38 & 39 Vict. c. 66. (ni) f.e., under § 7, ttseq. ; not pro- visionally registered under § 4, ^''^ simply registered under Ij !>S. Seen-''' p. 114. (n) See § 203. § ISO enables tl;-. companies to register with limited Iij- l)ility. See ante, pp. ll-li 12^ ? '' applies to companies registered unAr this section ; Banmay's case, i Ch. !'• 888. L862. 25 & 26 VICT. CAP. 89. — part ix. repeal of acts, etc. 987 lY I'UOVISIONS. thure shall be ifi>eale(l the nl rtcli(Klnle hcrolo, with tlii, ivs is set I'ortli in the secuii.l ve-eiiacted and coiitimu- in hereby repealed : V registered under any „ i liability incurred uikIl'I any mishnient incurred in il-1«M jy repealed : (i)] to the Joint-stock ci-miwni- 'ar as the same applies to am the conimencenient of tin- lanies under an order mailt 4 operation (l).] ueut of this act any coiiviy- ade in pursuance of ;inyai! iiue force as if this aet lia.l ii-i h repealed act shall be tVxwA y (v/i) registered nnrler the a i i- present Majesty, eliiivto'.!.' Ihe registration, incovporatwii, dl on or before the second .l.v Ind sixty-two, and evevy otlnr led to register \nuler the >iiM acts, and which has not - , „f the thirty-lirst (lay fiviii rM as a company under tin- ,us hereinbefore contained (- l etely registered umler the siii 1 ,sent Majesty shall he inuuvU :d of settlement ; and for A' lally registered under § i, »' Vredstered under !; r.S. See"-'' [lurposc of enabling such insurance companies as are mentioned in this ...tion to register under tliis act, this act shall he deemed to come into I owration immediately on the passing thereof ; nevertlieless the registration if iiiJii'onipanies shall not have any effect until tiio time of the commence- iiKiit of this act. No fees shall be chargi^l in respect of tlie registration 1.1 anv company rcciuired to register by this section. 1210. If any company required by the last section to register imder this iit makes default in complying with the provisions thereof, then, from I xfA ;'.fter the day upon which such company is recpiired to register under tlii- act, until the day on which such company is registered under this act which it is empowered to do at any time), the f(jllowing consequences -hall 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 ecjuity (o) : (2.) No dividend shall be payable to any shareholder in such company : (3.) Each director or manager of tlie company shall, for each day during which the company so being in default carries on busi- ness incur a penalty not exceeding tive pounds •• vd such penalty may be recoveretl by any person, whether a shareholder nr not in the company, and be applied by hun to his own use : IXevertheless, such default shall not render the company so being in default lillfgal, nor subject it to any penalty or disability, other than as specified liB this section ; and registration under this act shall cancel any penalty Icr forfeiture, and put an end to any disability which any company may I bv incurred under any act hereby repealed by reason of its not having Ircji-tcied under the Joint-stock companies acts, 1800, 1857, or om; of I them. [211 ami 212. Conferred power on the Board of Trade to change the |f-,'i!teied oliice of any company from any one part of the United Kingdom l(f Great Britain and Ireland, to any other part thereof, upon application liiudo witliin one year from the passing of the act (^j).] (o) See ante, p. 127. {p) §§ 211 and 212 are repealed by 38 & 39 Vict. c. 66. Appendix V. Penalty on eom- pany not regis- tering. [21 Vict. c. II. fi 28.] Temporary power for companies to change registered ortico. See §203. § ISO enables t.-. hnics to register with liimteai'-l 114, 127. ■ ■ See ante, pp. lhI ui\"' 1.8 to companies rogistered lection ; Ramsay's cas(, 3 Ch. \j^W'WW^ It' 1)88 Appendix V. Fii-st 80110(11110. Table A. ^4i THE COMPANIES ACT, 1.862. FIRST SCHEDULE. TABLE A. (Hue ^ \4, 15) (5). REQULATIONS for MANAOEMENT op a company LIMrTED BY SHARES (r), Sluires (s). (1.) If several persons are registered a.s joii't holders ot' aiiyskre any one of such persons may give efteetuul r(!C('i]it.s f(ir anv dividend payahle in re.spect of such .share. (2.) Every nieniher .shall, on payment of one shilling, or .sudi liss sum as the company in general meeting may prcscriljc, U entitled to a certiticate, under the common seal of tht; compiinv, specifying the share or shares held by him, and the aiunuiit iiaij up thereon (t). (3.) If sucli certificate is worn out or lost, it may be reiiewe>],oa payment of one .shilling, or such less sum as the company la genend meeting may prescribe. Calls on Shares (u). (4.) The directors may from time to time make such calls upon the members in respect of all monies unpaid on their sliarei? as they think fit, provided that twenty-one days' notice at least is given of each call (x-) ; and each member shall be liable tn pay the amount of calls so made to the pei'sons and at the times an! places appointed by the directors (j/). (5.) A call shall be deemed to have been made at the time wku the resolution of the directors authorising such call was passed. (fi.) If the call payable in respect of any share is not paid lefoieor ou the tlay appointed for payment thereof, the holiler fur the time being of such .share shall be liable to pay interest for the same at the rate of five pounds ]ier cent, per annum from the day ajipointed for the payment thereof to the time of the adu payment. ;'/) Tills table corresponds to table I!. ill the act of 1856. The two are sub- .slaiitmlly alike in most respects. The regulations in the above table apply to lompanics formed under this act, and limited by shares, unless specially ex- flnded. (See §15.) But they do not, unless specially adopted, apply to com panies existing before the passing of the act, and registered under it : § 196 ; see also S 176. The Board of Trade has power to alter these regulations (see § 71) ; and every compftny to which they apply can alter thorn by a special resolution. Se«i5i'. (;■) As to tiie construction of c;! panics' regulations, see ante, \>\>. l'-' seq. (.1) Shares are personal estite, w must be numbered. See § 22 of the 1.1 See ante, p. 451. (t) See § 31 of the act. (m) See, on this subject, ante, pp. ♦'' et seq. {x) See, as to giving notices, Jfo!, i —97 ; and see ante, pp. 407, <(«? (y) § 16 makes calls specialty deln 1862. 25 & 26 VICT. CAP. 89. — schedule i. U89 16) (a). 'ANY LIMITED BY SHARES r , (7.) The directora may, if they think fit, receive from any member willing to advance the banie all or any part of the monies dne upon the shares held liy him beyond the sums actnally called for ; and upon the monies so paid in advance, or so much thereof as from time to time exceeds the amount of the calls tlien made upon the shares in respect of which such advance lias been made, the company may pay interest at such rate as the member paying such sura in advance and the directors agree upon (a). Appendix V. Table A. s joint holders of any share, ive ctt'ectual receipts fur any h share. of one shilling, ov such 1« meeting may pvt-scrihc, h. common seal of tlu' compaiiv, 1 by him, and the amount [laiJ i,v lost, it may be renewed, on li less sum as the cumiwnyia time make such calls upon tliel s unpaid on their shares a>ilisy I )no days' notice at least is givcnl nber shall be liable tu pay ihel persons and at the tinie< anil ueeu" made at the time when tkl Using such call was passed. anv share is not paid betoK •) . L.nt thereof, the holder for i «l be liable to pay interest lot t J ,,er cent, per anniuu from th« [tlK-reof to the time of the actvJ l,y a special resolution. See§5ij I,-) As to tiie construction ot (-^ lies' regulations, see ante,V\'-'^''' h) Sliares are personal estate,: V be numbered. See § 22 of ite .1| J ante, p. 451. I() See § 31 of the act. 1«) See, on this subject, aii(«,PPW| P)"see, as to giving notices, S*i h; andBee\\A Iha't have accriU'd by rla^i ,pointed, the shares ni vert be liable to be forleitcil. 1 notice as aforesaid aiv iit I Utof which such notice ha> I'cafter, before payment u! a" in respect thcrw.f ha.'; '« I lof the directors to tliat* I cemed to be the pn.pcrty-t •dof in fiuch manner as Ik I AlecJ/ltfeited shall ni.t.iiH [company all calls .^s-\k 'H«I 'eiture (g)- , ,g, that the call m respect f;f Riven, and that defaut Ll that the forfeiture ottl ,f the director to that etlMJ facts therein stated, as as:a..i- 1 ., andBUchdeclaratuman j eofBUch8hareshalUo,.luJ a certificate of propnetor.1.1!^ I The service may be personal, otl: See Nos. 95-97. iThediBposaloftorteUcdskrcsd Vl business. See Nos. 35, »6- See ante, p- *25. 25 & 26 VICT. CAP. 89. — schedule i. shall be delivered to a purchaser, and thereupon lie sliull hu deemed the holder of such share discliarjjcd from nil calls due jmor to such purchase ; and he shall not be bound to nee to tlu; application of the purcluise money, nor shall his title to such share be nfFected by any irn^gularity in the proceedings in reference to such sale. ('onversion of xharen into stocL: (23.) The directors may, with the sanction of the company previously given in general mectinj,', convert any paid-up shares into stock (h). (24.) \Vhen any shares have 1)i'(ii converted into stock, tiif .-evcral holders of such stoc^i may llienceforth lraii.sfer their respective interests therein, or uny ])art of such intca'cst.s, in tin; sami; nianncT and subject to the same n'i,'ulations as and .subject to which any siiares in the cajiital of the comi)any may be transferred, or as ni:ar thereto as circumstances admit (i). (25.) Tlie several holders of stock sliall be eiilitU:d to i)artici])atu in tlie dividends and i)rt)lils of tlie company accordiiij^ to IIk; amount of their respective interests in such stock ; and sucli interest .shall, in iir()])ortion to tlie amount thereof, confer on tlie holders tiiereof resiiectively the same privileges and advantages for the purpose of voting at meetings of tlie company, and lor other jjurposes, as would have been conferred by sliares of (Mjual aniounl in the cajiital of the company ; but so that noiio of such jirivileges or advantages, (except the jiarticipation in the divi- dends and profits of the company, shall be conferred liy any such aliital. General meetings (m). (29.) The first general meeting shall be held at such time, not hiin' more than six months after the registration of the ciuiipany, auj at such jilace, as the directors may determine (?i), (30.) Subsecjuent general meetings shall be held at siuli tiint nj place as may be prescribed by the company in general iiiMtin;' and if no other time or place is prescribed, a general niettiif I shall be held on the first Monday in February in every year,ji such place as may be determined by V.m directors. (31.) The above-mentioned general meetings shall be called onliiiarv] meetings : all other general meetings shall be called mu- ordinary (o). (32.) The directors may, whenever they think fit, and they shall iipcu I a requisition made in writing by not less than one- fifth in nunili of the members of the company, convene an extraordinary j;iiitr,i! | meeting. (33.) Any requisiti(m made by the members shall express theolijt.!J of the meeting proposed to be called, and shall be leftattkl registered office of the comjiany. (34. ) Upon the receipt of such requisition the directors shall furtlimli| proceed to convene an extraordinary general meeting'. If thevl do not proceed to convene the same within twenty-one days fini I the date of the requisition, the requisitionists, or any atlitrl members amounting to the required number, may tliemstlvtsj conveiu' an extraordinary general meeting (y). Proceedings at general meetings (q). (35.) Seven days' notice at the least (?•), specifying the place, the Ja and the hour of meeting, and in case of special business (jjllJ general nature of such business, shall be given to the nienibtrsiaj manner hereinafter mentioned (<), or in such other niaiiiiir, any, as may be prescribed by the company in geiu'ial niirlin.j but the non-receipt of such notice by any member shall not inviii' date the jiroceedings at any general meeting {a). (36.) All business shall be deemed special that is transacted ut extraordinary meeting, and all that is transacted at an oiiliian meeting, with the ex.ception of sanctioning a dividend ; iiii'l \'4 (m) See § 49 of the act, and as to meetings and the proceedings at them, ante, pp. 304 ct scq., 340. (n) See The Companies act, 1867, § 39. (o) See ante, p. 307. {p) See § 52 of tlie act. iq) See ante, pp. 304 et seq., 310. (r) See § 52 of the act, auJ antt, ^ 305, 306. («) See No. 36. (0 See Nos. 95, 97. (m) See ante, p. 304. L862. such manner as tlioy thiul of new Hlmres hIi.iII lie m- , and wliall U'. suljjuct toiiic [i payment of calls, iimltk of ciills, or otliurwise, asifii belli at such tiiiiu, not Kin^ stration of the ci'iiiiKiiiy,aiH determine (71). 11 he held at siu:li timt ai.i ;ompany in general mwtiu;; , I )rescrihed, a ^jeueral uieaii,.' in Fehruary in every ytar, ,ii 1 y the directors. :tin"8 shall be culled uviliiuiy 1 2tint;s shall be callcil niu- think fit, andtlieyslialhii*ii| jt less than one-fifth in uumUr I nvene an extraordinary jjtntta! j mbers shall exi)re.S!i tliealjt;! illed, and shall be left at lit ton the directors hIuiH fuvlliwitli j vry general nieelin','. If ll«v| le within twenty-one days tioml reiiuisitioniste, or any oikl dred number, may tlieubtlvdj meeting ( p). eetivgs (q). ■), specifying the place, thecte case of special l)UsineS',(s)thJ lall be given to die iiierabtKiiil I), or in such other nmniki, il 'company in general intttiKJ by any member .hall not umiij ,al meeting (h). Ipccial that is transacted at Tat is transacted at an oiaiiur] [uictioning a dividend and taj I See ante, pp. 304 et scq., » J See §52 of tlie act, and a«!M' |306. 1 See No. 36. I See Xos. 9.5, 97. See atitc, p. 304. 25 \ 2G VICT. CAP. 89. — hchedui.k 1. consideration of Die nrooiints, balance- sheets, and tlie ordinary A rejiort of the directoif*. ~ (37.) No busines.s shall be transacted at any general meeting, except the declaration of a dividend, unless a (juoruni of members in present at the time when the meeting proceeds to business, and such (juorum shall be ascertained as follows ; that is to say, if the persons who have taken shares in the company (.c) at the time of the meeting do not exceed ten in number, the (luorum shall be five ; if they exceed ten there shall be added to the above (piorum one for every five additional members up to iifty, and one for every ten additional members after fifty, with thia limitation, that no (luoruni shall in any case exceed twenty (1/). (38.) If within one hour from the time appointed for the meeting a quorum is not present, the meeting, if (lonvened upon the re(|ui- sition of members, .shall be disscdved ; 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 (piorum is not present, it shall be adjourned sine die. (39.) The chairman (if any) of the board of directors shall preside as eliairman at every general meeting of the company (,•:). (40.) If there is no such chairman, or if at any meeting lie is not jiresent within fifteen minutes after the time appointed for holding the meeting, the members present .shall choose some one of their number to be chairman («). (41.) The chairman may, with the consent of the meetuig, adjourn any meeting from time to time and from jdace to place, but no business .shall be transacted at aiiy adjourned meeting other than the business left untinislied at the meeting from which tlie adjournment took place (/»). (42.) At any general meeting, unless a jndl is demanded by at least live membei's, a declaration by the chairman that a rcsolutiy UUwdi' .1 curator. y eiititU'il to n Hliiire or *ht\:>, nt on the regi^iT uf lufml.r. . or Hliiirt's, aii'l iiuuiliuv, -l.'.l c wumi'. votn lit uiiy j;fiirral iiun;;,. •e Ih'OU l>iU(l, mill H" ""i"' r lect ol' any >»liiiv«; tliiit lit 1,.- ng hclil aftt-r tlic isiiiiMii-ii : 1 ot the conivaiiy, unless lieli. puct of which he cliiiui.tov v isly to the time of liuldiu^ tit I vote. .nallvoi'by proxy (/). roxy iay all t'xju'UHe.s iifiirred in ^jotting up and registerinf,' the company, ami may '^ icise all such powers of tlie company as mv not by fin; forcj^oinp,' act, or by tlip.se articles, rei|uire(l to be exercised by thu company in general meeting, subji.ct nevertiR'leB.s to any regulation.s of tlieso articles, to the provisions of the foregoing act, and to such regulations, being not inconsistent with the aforesaid regiila- fimis or provisions, as may lu- jirescribed by llie comjiany in general meeting ; Iiut no ri'gulation nuulo by the company in geiii'ral meeting sliiiU invalidatt! any prior act of tlie directors wiiich would have been valid if such regulation hail not been made (/). (56.) The conthuiiiig directors may act notwithstanding any vacancy in tlieir body. Disqwdifuittion of directors (ni), (57.) The ollice of director shall be vacated — If he holds any other otiicc or place of prolit under the company ; If lie becomes bankrupt or insidvent ; If he is concerned in or jiarticipates in the profits of any contract with the company ; Hut the above rules shall be subject to the following cxcep- tiims : That no director shall vacate his oflice by reason of his being a member of any company which has entered into con- tracts with or done any work for the company of which he is 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. Eolation of directors [ante, p. 337). (58.) At the first ordinary meeting after the registration of the com- pany the whole of the directors shall retire from oflice ; and at the first ordinary meeting in every subsequent year one-tliird of the directors for the time being, or if their number is not a multiple of three, then the nundjer nearest to one-third, shall retire from oflice. (59.) The one-third or other nearest number to retire during the first and second years ensuing the fir.st ordinary meeting of the company shall, unless the directors agree among themselves, be determined by ballot : in every subsiMiucnt year the one-third or other nearest number who have been longest in oflice shall retire. (60.) A retiring director shall be re-eligible. (Gl.) The company at the general meeting at which any directors retire in manner aforesaid shall fill up the vacated ofhces by electing a like number of persons. |(' 3m antt, pp. 155 et aeq., 298 et (I) See infra, No. 71. l'P.377 tt sc^., and p. 506, &c. (m) See ante, pp. 300, 337. 3 8 2 AFriNPix V. Table A. -»:; ^ ,' ■• .^T^- 996 THE COMPANIES ACT, 1862. Appekdtx v. Table A. (62.) If at any meeting at which an electinn of directni-s ought t take place the places of the vacating directors aiu n.-it tilled uc the meeting shall stand adjourned till the same day in the ni\ week, at the same time and place ; and if at sucii a(ljo^rnc^ meeting the places of the vacating directoi-s are not filled up the vacating directors, or such of them as have not had theij places filled up, shall continue in office until the ordinary meet ing in the n<;xt year, and so on from time to time until theii places are filled up. (63.) The company may from time to time, in general lut-etiii!', in. crease 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 (»i) occurring in the board of directors mav be filled up by the director, but any person so chosen shall retain his office so Ion',' only as the; vacating director would have retained the sa'ue if no vacancy had occurred. j (65.) The company, in general meeting, may, by a special resolu- tion (o), remove any director before the expiration of bis period of office, and may by an ordinary resolution appoint aiioilier person in his stead ; the person so ajipointed shall bold (rffi.e during such time only as the director in wliose place he ij appointed would have held the same if he had not been re- moved (p). Proceedings of directors (q). (66.) The directors may meet together for the despatch of business adjourn, and otherwise regulate their meetings as tbey think lit and determine the quorum necessary for the trau.saction of liiii ness : questions arising at any meeting shall be decided w i majority of voles : in case of equality of votes the cliairinai shall have a second or casting vote : a director may at aiiv tinil sunnnon a meeting of the directors. (67.) The directors may elect a chairman at their nieetiii;;-, aitl determine the period for which he is to hold office ; but if nl such chairman is elected, or if at any meeting; the chairman if not present at the time ajjpointed for liuldinL; the same, th{ directors present shall choose some one of their nunilurt' chairman of such meeting. (68.) The directors may delegate any of their iiowers to coninii;;(( consisting of such member or members of their bodyasiii thhik fit : any committee so formed shall, in the exercise i powers so delegated, conform to any regulations that iiuv 1 imposed on them by the directors (r). (69.) A committee may elect a chairman of their meetings : if ! such chairman is elected, or if he is not present at the : (a) As to the meaning of the word "casuii!," see Vork Tyamicays Co. v. Wiiloivs, 8 Q. 15. D. p. 69 1 • Munsta' V. Cammell Co., 21 Oh. D. p. 187. (o) See the act, § 51. (;;) Ante, pp. 302, 337. (q) See ante, pp. 208 ct .itq.. > to boards .and qiioniius, antf, H 299, 828-9. ((•) See ante, p. 3:38, aud the rtfj ences in the last note. 1862. lection of diveetoi's ought to g directors uiii not tilled up, till the same day in the next ; ; and if at siu'h ailjourned ' directors are not tilled up, them as have not had their )ffice until the ordinary mA- jm time to time until tkit time, in general nieetii;", in- lirectors, and may also ddd- ;ased or reduced number is to < in the board of directors may | t any person so cliosen sh " 3 the vacating director to ncy had occurred, ing, may, hy a special te;olii-| )re the expiration of his pcrit«l| xry resolution appoint auoilittj so appointed shall hold (itiicel director in whose place lie isl same if lie liad not heen r- ztora {(]). ber for the despatch of business, I their meetings as they thmkhtj ssary for the transaction ot'ka- mceting shall be decided i;, eciuality of votes the chaind ote : a director may at any tim hairman at their iuuclin;;>, aiK 1 he is to hold office ; but if » at any meeting the chainianl nted for holding the- *aiiK'. ;ome oneof theirmuulwwl ,. of their powers to comiuit;^ members of their body as IM^ rnied shall, in the exercise. :t« to any regulations that imyl irman of their meeting. ■ in i he is not present at the a [q) See ante, VV- 208 d .«'/..- boards aiul quoruius, anlf, li 'j 9, 828-9. ,-)See ante, p. 3:5S, and the ■ cs in the last note. 25 & 2(! VICT. CAP. 89. — schedule i. a()i)ointed for holding the same, the membei-s present shall clioose one of their number to be chairman of such meeting. (70.) A committee may meet and adjourn as they' think proper : (|uesti(jns arising at any meeting shall be detennuied by a majority of votes of the members present ; and in case of an erpiality of votes the chairman shall have a second or tasting vote. (71.) All acts done by any meeLing of the directors or of a committee of directors, or by any person acting as a director, shall, not- withstanding that it be afterwards discovered that there was some defect in the appointment of any such directors or persons acting as aforesaid, or that they or any of them were disqualified, be as valid as if every such person had been duly appointed and was qualified to be a director (,s). IHvvhnds (t). (72.) Tlie directoi-s may, with the sanction of the company in general meeting, declare a dividend to be paid to the members in proportion to their shares. (73.) Xo dividend shall be payable except out of the profits arising from the business of the company. (74.) The directors maj^ before reconnnending any dividend, set aside out of the profits of the company such sum as they think proper as a reserved fund to meet contingencies, or for equalis- ing dividends, or for repairing or maintaining the works con- nected with the business of the company, or any part thereof ; and the directors may invest the sum so set apart as a reserved fund upon such securities as they nniy select. (75.) The directors may deduct from the dividends payable to any member all such sums of money as may be due from him to the company on account of calls or otherwise. (76.) Notice of any dividend that may have been declared shall be given to each member in manner hereinafter mentioned {u) ; and all dividends unclaimed for tliree years after having been declared may be forfeited l>y the directoi's for the benefit of the companv. (77.) Xo dividend shall boar interest as against the company. 997 Appendix V. Table A. Accounts {.(). ) The directoi's shall cause true accounts to be kept, — Of the stock in trade of the company ; ( >f the sums of money received and expended by the company, and the matte.' in respect of which such receipt and expen- diture takes place ; and Of the credits and liabilities of the company ; The books of account shall be kept at tlie registered office of " See § 67 of the act, and ante, p. |fl See ecting the fame tlmt may lie im. posed by the company in general meeting, shall Ije open to the inspection of the members during the hours of business (y). (79.) Once at the least in every year the directors shall lay before the comjiany in general meeting a statement of the income and expenditure for the past year, made up to a date not more than three months before such meeting, (80.) The statement so made shall show, arranged under the most convenient heads, the amount of gross income, distiiignisbiD" the several sources from which it has been derived, and the amount of gross expenditure, distinguishing the expense of the establishment, salaries, and other like matters : every item of expenditure fairly chargeable against the year's income .shall 1 brought into account, so that a just balance of profit atid los I may be laid before the meeting ; and in cases where any item of | expenditure which may in fairness be distributed owr sevenl yeai-s has been incurred in any one year, the whole amount of such item shall be stated, with the addition of the rcivsons vhv only a jjortion of such expenditure is charged against the income I of the year. (81.) A balance-sheet shall be made out in every year, and lail before the company in general meeting ; and such balaiite-| sheet shall contain a summary of the property and liabilititil of the company airanged under the heads apjitaring in the! fonu annexed to this table, or as near thereto as uircumstanftsl admit (2). (82.) A printed copy of such balance-sheet shall, seven im previously to such meeting, be served on eveiy member inl the manner in which notices are hereinafter directed to le| served (a). Audit (b). (83.) Once at the least in every year the accounts of the eompawi shall be examined, and the correctness of the balance-.-httt| ascertained, by one or more auditor or auditors. (84.) The first auditors shall be appointed by the directors : sulrJ quent auditors shall be ajjpointed by the company in generi meeting. (85.) If one auditor only is appointed, all the provisions herein cleJ tained relating to auditors shall apply to him. (86.) The auditoi-s may Iw members of the company ; l)ut no por> i is eligible as an auditor who is interested otherwise thana^i member in any transaction of the company ; and no direttoroJ other officer (tf the conspany is eligible during his contimuiici in office. (87.) The election of auditors shall be made by the conijiany at thti| ordinary meeting in each year. (y) See ante, pp. 439 ct seq. (j) See form at end of this table, nfra, p. 1000. (o) See No. 95. (6) See (iiitf, pp. 443, 4. 25 & 26 VICT. CAP. 89. — SCHEDULE I. 999 out in every year, aiidlaiij meeting ; and micIi balai r tlie accounts of the compmyj •rectness of the hahmcc-^htttT or or auditors, ntcd by the directors ; sul* ^il by the company in genentB all the provisions herein c(nl nplv tt> him. f the company ; hut no ]>m interested otherwise thaiu'j I; company; and no director cJ elinible during his coutimmcl (89, (90. /91 (92, ,93 (94, ) The remuneration of the first auditors shall be fixed by the directors ; that of subseciuent auditors shall be fixed by the company in general meeting. ) Any auditor shall be re-eligible on Ids quittmg office. ) If any casual vacancy occurs in the office of any auditor ap- pointed by the company, the directors shall forthwith call an extraordinary general meeting for the purpose of supi)lying the same. ) If no election of auditors is made in manner afores-aid, the Board of Trade may, on the application of nfit les.s than five members of the company, appoint an auditor for the current year, and fix the remuneration to be paid to him by the company for his services. ) Every auditor shall be supplied with a copy of the balance- sheet, and it shall be his duty to examine the same, with the accounts and vouchers relating thereto. ) 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 : he may, at the expense of the company, employ accountants or other persons to assist him in investigating such accounts, and he may in rela- tion to such accounts examine the directors or any other officer of the company. ) Tlie auditors shall make a report to the members upon the balance-sheet and accounts ; and in every such report they shall state whether, in their opinion, the balance-sheet is a full and fair balance-sheet, containing the particulars required by these regulations, .and properly drawn up so as to exhibit a true and correct view of the state of the company's att'airs, and, in case they have called for explanations or information from the directors, whether such explanations or information have buen given by the directors, and whether they have been satisfactory ; and such report shall be read, together with the report of the directors, at the ordinary meeting. Notices (c). (95.) A notice may be served by the company upon any member either personally, or by sending it through the post in a pre- i'aid letter addressed to such member at his registered place of abode. v96,) All notices directed to be given to the members shall, with respect to any share to which pei-sons are jointly entitled, be L;iven to whichever of such persons is nanieil first in the register of niembei-p ; and notice so given shall be suflicient notice to all tlie hold:r-t of such sluiiv. ,9".) Any i. ^p, if served by post, shall be deemed to have been served ai 'ie time when the letter containing the same would be deliverrxT m the ordinary course of the post ; and in proving such service it shall be sufticient to prove that the letter con- taining tlie notices was properly addressed and put into the jOTst-office. AppKNnix V. T.iMeA. y' These clauses only apiily to notices I tie ordinary course of a company's business, see London and Staffordshire Fire Ins. Co., '24 Oh. D. 149. 1000 THE COMPANIES ACT, 1862. "8 P4 fH m bO • c: 1 rr. ^ CC ■^ ^^ ^ * J3 r^T to . 5? v; 3 CC -t-> eo H 1:4 «*^ -TS ^ fli IS ^ • ?? f? iS 8 m >. ■a . o) s is J l-< «« to .9 ® S 2 : -c a a 05 H •^e ;= ja ■ i o j- ^ t T3 • £» c ? o-c g p,C>;z; « «E-i • W s s-g 2 ■3 a •« g 1 p a £ Cr. _ Q lU t. t. K ,^ 3 o ja ■a P .2 § so o J 4J ^o PhE "a 5 Mo S'-S 5 'Se-'^MlH.S'ii-SaB S ojg c 5 s a! rt.C s^i °:3 w c3 ?! ■V-9,-^-9.o<^,j= S H ■? S 2 • "^ is o ^ 2 "^ o a c 2 .— * P.1 MK-»1>.HClH K'^-g-.JC-S. ^ ^ t-« QJ C C4 <] (U .£3 p^ u^ ^ V P V p, « U UQ "S i; j= ^ 1 «= o — 03 .5- S is 0^ S .&. i-ci^ 25 & 26 VICT. CAP. 89. — schedule i. 1001 TABLE B. (See § 17.) Table of fees to be paid to the registrar op joint-stock com- panies BY A COMPANY HAVING A CAPITAL DIVIDED INTO SHARES. £ S. ll For registration of a company whose nominal capital does not exceed 2,000^., a fee of 2 For registration of a company whose nominal capital exceeds 2,000/., the above fee of 21., with the following additional fee?, regulated accordiny to the amount of nonunal capital ; 'tiiat is to say,) £ s. d. For every 1 ,000?. of nominal capital, or part of 1,000?., after the first 2,000?., np to h,000l 10 For every 1,000?. of nominal cajntal, or part of 1,000?., after the first .5,000?., up to 100,000? 5 For every 1,000?. of nominal capital, or part of 1,000?., after the .Irst 100,000?, . .010 •urregistration of any increase of capital made after the first regiBtration of the company, the same fees per 1,000?., or part of 1,000?., as would have been payable if such increased capital had fonned part of the original capital at the time of re^^Lstratioii. I Provided that no company shall be liable to pay in respect of nominal cajjital on registration, or afterwards, any greater iiuount of fees than 50?., taking into account in the case of tfos payable on an increase of capital after registration the fees paid on registration. I For registration of any existing company, except such companies IS are Ity this act exempted from payment of fees in respect of registration under this act (e), the same fee a.s is charged for registering a new company. IFor registering any document hereby requireil or authorised to lie registered, other than the memorandum of association .050 iFr making a record of any fact hereby .authorised or rei^uired to be recorded by the registrar of companies, a fee of . . 5 Ai'i'KNnix V. TaWe R TABLE C. (See § 17.) pLE OF FEES TO BE PAID TO THE REGISTRAR OF JOINT-.STOCK COM- Table CV I Pixies by a company not having a capital divided into shares. £ s. d. lor registration of a company whose number of members as •tated ill the articles of association does not exceed 20 .200 f« registration of a company whose number of members, as I stated in tlie articles of association, exceed^ 20, but does not i exceed 100 5 J!" See §§ ISa and 209. 51 Vict. c. S, 111, requires a statemont of the amount [nonimal capital to be sent to the regu- trar, ami imposes a stamp duty of 2s. per 100/, of capital. ^w 5 '"'PWW'iW' 1002 THE COMPANIES ACT, 1862. Ari'Enmx V. Table C. For registration of a company whose number of memljer.s, as £ j, ,; stated in the articles of association, exceeds 100, hut is not stated to be unlimited, the above fee of 5^., with an addi- tional 5s. for every 50 members or less number than 50 members after the fii-wt 100. For registration of a company iii 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 niuuber of members made after the registration of the company in respect uf every 50 members, or less than 50 members, of such in- crease . . . . . . . . . .Of)!) Provided that no one company shall be liable to pay on llm whole a greater fee than 201. in respect of its number nf members, taking into account the fee paid on the first regis- tvaiii': " '. company. Fo. i-ep if of any existing company, except such com- pajii( 'c ■ this act exempted from payment of fees in respect of registration under this act (/), the same fee as is charfTod for registering a new company. For rej^islerii"' any cr.' '-'nent hereby required or authorised to be register'-ii, jthei' •mn. the memorandum of association . 5 u For making a record of any fact hereby authorised or recpiircd to be recorded by the registrar of companies, a fee of . . 5 m FORM D. FovraD. FOEM OF STATEMENT HEFERKED TO IN (See § 44.) Part III. of the act. divided into * The capital of the company is of each. The number of shares issued is Calls to the amount of pounds per share have been made, undtr which the sum of pounds has been received. The liabilities of the company on the first day of January (f/c July were, — Debts owinj,' 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 itromissory notes, £ Cash at the bankers, £ Other securities, £ {/) See § 189. * If the company has no caiiital divided into shares, the portion of tlic statement | relating to capital and shares must be omitted. sLm- 26 & 26 VICT. CAP. 89. — schedule ii. 1003 ArPENDix V. IT III. OF THE ACT. re have been made, under [eived. (lay of Januaiy (m- •July' SECOND SCHEDULE (g). FORM A. (Sec § 8.) Memorandum op association op a company limited by shares. 1st. The name of the coniimny is " The Eastern Steam Packet Com- pany, Liniitiil." ind. The registered office of the company will be situate in England. 3rd, The dlijects for which the company is established are, " the con- vivance of passengers and goods in ships or boats between such places as llie company may from time to tune determine, and the doing all such oilier things as are incidental or conducive to the attainment of the above object." 4tli. Tlie liability of tlie members is limited. ,')tli. The capital of the company is two hundred thousand pounds, iiviiled into one thousand shares of two hundred pounds each. We, the several iiersons whose names and addresses are subscribed, are desirous of being formed into a company, in pursuance of this memo- randum 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. John Jones of Jolui Smith of Thomas Green of John Thompson of Caleb White of "G. Andrew Brown of 7, Ca'sar White of "1, "2 "3, "4, "5, in the county of in the county of in the county of in the county of in the county of in the county of in the county of Total .shares taken . Merchant Number of Shares taken by each Sub- scriber. 200 25 30 40 15 5 10 325 Dated the 22 nd day of Novemljer 1861. Witness to the above signatures, A. B., No. 13, Hute Street, Clerkenwell, Middlesex. Form A. the portion of the statfment FORM B. (See §§9, 14.) Memorandum and articles ov association of a company limited BY guarantee, and NOT HAVING A CAPITAL DIVIDED INTO SHARES. Memurattdum of association. Ist Tiie name of the company is " The Mutual London Marine Asso- I ffldon, Liunted." 's) Tlie fonns in this schedule are cases to which they apply will be found 1 5W as examples, to be followed as in the sections referred to at the head of psely as possible. (See § 71.) The each form. Form B. 1004 Api'Kndix v. Form li. THE COMPANIES ACT, 1862. 2nd. Tlu! re},'istei'u(l olJici? of the company will be situate in Eii"I;in(l. 3ril. The oLjects for which the company is estahlished are, " the nuitiial insurance ol' ships Ijelonginj,' to mcniiliera of the company, ainl tin' iloini,' all Hucli other tilings as are lui-idental or conduci\e to the aUuinnn'iit of the above objects." 4th. Every member of the company undertakes to c(jntrilmte td tin- asset.s of the company, in the event of the same being wound up duiin" the time that he is a mi'mber, or within one year afterwards, fur 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 nf winding up the same, and for the adjustment of the rights of the contri- butories amongst themselves, such amount as may be required not exceed- ing ten pounds, Wk, the fie^'cral persons whose names and addresses are suljscribed, are desirous of being formed into a company, in pursuance of this memo- randum of association. Names, Addresses, and Descriptions of Siibscribei-s. " 1. John Jones of " 2. John Smith of " 3. Thomtvs Green of " 4. Jolui Thompson of " 5. Caleb White of " 6. Andrew Brown of " 7. Cffisar White of in the county of in the county of in th(! coimty of in the county of in the county of in the county of in the county of Merchant, Dated the 22nd day of November 1861, Witness to the above signatures, A. B., No. 13, Hute Street, Clcrkemvell, Middlesex. Articles of association to accompany preceding memorandum of ASSOCIATION. (See § 14.) (1.) The company, for the purpose of registration, is declared to consist of five hundred members. (2.) The director's hereinafter mentioned may, whenever the l)usi- ness of the association requires it, register an increase of] members. Definition of members. (3.) Every pei-son shall be deemed to have agreed to become a member of the company who insures any ship or share in a j ship in pui-suance of the regulations hereinafter contained. General meetings, (4.) The first general meeting shall be held at such time, notbeingj more than three months after the incorporation of the comiianv, and at such place, as the directors may determine. (5.) Subsequent general meetings shall be held at such tune anJj place as may be prescribed by the company in general meeting;! and if no other time or place is prescribed, a general meetingj 25 ifc 26 VICT. CAP. 89. — schedi'le ii. 1005 fihiiU be held on the first Monday in Fehruary in every yeui', at su:h phice as may be determined by the director.^. (6.) The above-mentioned general meetings shall be called ordinary meetings ; all other general meetings shall be culled extra- ordinary. (7.) The directors may, whenever they think fit, and they shall, upon a requisition made in writing by any five or more members, convene an 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 olfice of the company. \ (9.) Upon the receipt of such requisition the directors shall forth- with proceed to convene a general meeting ; if they do not proceed to convene the same within twenty-one days from the date of the requisition, the requisitionists, or any other five members, may themselves convene a meeting. Appendix V. Form B. ;edixg memorandum of ;f'istration, is ileclaiiMl to lave agreed to become a es any ship or share in ,. Lereinafter contamed. .. at such time, not beind )rporation of the comrany, iv determine. . i held at such tune and Lpany in general meetmgil Lcribed, a general 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 gtaieral 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 tlie directors. (12.) No business shall be transacted at any meeting except the declaration of a dividend, unless a quorum of members is pre- sent at the commencement of such business ; and such (juoruni shall be ascertained as follows ; that is to say, if the member.'* 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 fol- lowing week at the same time and jjlace ; 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 chair- ma!i at every general meeting of the company. (15.) If there is no such chairman, or if at any meeting he is not present Lit the time of holding the same, the members present sliall choose some one of their number to be chairman of such meeting. m m" I'Vff 1006 Al'PKNDIX V. Form U. THE COMPANIES ACT, 18G2. (16.) The cliaii-man may, with tlio cimsent of the incotini,', nflionm nny meeting,' from time to time nml from place to jila. ,- ; l,j,i „„ biLsiness shall be traiiHncted at any adjoimietl meeting; othir than the businesH left uiiti niched at the meeting fvnn whirh tlir utljounimejit took iilace. (17.) At any general meeting,', luiless a poll is (lemamlcd liy at lia-t five inemberx, a declaration by the chairmim that a rescjintjon has been carried, and an entry to that effect in the book of iiro- ceedings of the c(jniijany, bIiuU Ite sutlicient evidence of the fact without proof of the number or jnoportion of the votes niMnlid in favour of or against such resolution. (18.) If a poll is demanded in manner aforesaid, the same taken in such manner as the chairman directs, and th- such poll shall be deemed to be the resolution of the in general lucetiug. shall 1,0 result i.f duuiiaiiy Votes of members. (19.) Every member shall have one vote and no more. (20.) If any member is a lunatic or idiot, he may vute by his com- mittee, curator bonis, or other legal curator. (21.) No member shall be entitled to vote at any meeting unless all monies due from him to the company have been piud. (22.) Votes may be given either personally or by proxies : a proxy I shall be appointed in writing under the hand of tlu> (ipjiointor, i or, if such appointor is a corporation, under its conunon sial, (23.) No person shall be appointed a proxy who is nut a memlici; and the instrument appointing him shall be deposited at thii , registered office of the company not less than forty-eight Iiouk before the time of holding the meeting at which he proposes Id j vote. (24.) Any instriunent appointing a i>roxy shall be in the following I form : — Company Limited. I of in the coimty of buing a member of| fhe company limited, hereby appoint of as my proxy, to vote for me and on my Ijehalf at the [onliiiaiy or extraordinary, as the case may he] general meeting nf tlie , company to be held on the day of , ami at any j adjournment thereof to be held on the day of next [or, at any meeting of the company that may be licM iu, the year ]. As witness my hand, this day of Signed by the said in the presence of " f Directors. (25 ) The number of the directors, and the names of the fii^l directoi-s, shall be determined by the subscribers of the iiieiiii) randum of association. (26.) Until directors are appointed, the subscribers of the iikiiii> randum of association shall for all the purposes of this act deemed to be directors. 25 it 20 VICT. CXP. 89.— SOHEDl'LE II. 1007 Powers of directors, (27,) Tlie busiiiL-a.' (if tlic coiiiiiany hIiuU ho, niaimfjod Uy the tliroctors, will) niny cxciciHi; all mn',li powers of the company an are not hereby requiretl to he exercised hy the company in general meeting ; but no regulation made by the company in general meeting hIiuU invalidate any i)rior act of the direct(jrH which would have been valid if such regulation had not been made. Appendix V. Form a shall be in the following Election of directors, (28.) The directors shall be elected annually by the company in general meeting. JJusiness of company, [Here inseii rules as to mode in vhich business of insurance is to he conducted,] Accounts. (29.) The accounts of the company .shall be audited by a committee of live 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.) Subsecjuent audit committees shall be nominated by the mem- bers at th(! ordinary general meeting in each year. (32.) The audit connnittee shall be supplied with a copy of the balance-sheet, and it shall be their duty to examine the same with the accounts and vouchera relating thereto. (33.) The audit committee shall have a list delivered to them of all books kept by the company, and they shall at all reasonable times have access to the books and accounts of the company : they may, at the expense of the company, employ accountants or other pei-sons to a-ssist them in investigating such accounts, and they may in relation to such account!^ examine the directors or any other officer of the company. (34.) The audit committee shall make a report to the membei-s ni)on the balance-sheet and accounts ; and in every such report they shall state whether in their opinion the balance-sheet is a full and fair balance-.sheet, containing the particulars rei^uired by these regulations of the company, and properly drawn up so as to exhiljit a true and correct view of the state of the com- pany's atfaii-s, and, in case they have called for explanation or ii\formation from the directors, •whetlier such explanations or information have been given by the directors, and whether they have been satisfactory ; and such report shall be read, together with the report of the directors, at the ortlinary meeting. J subscribers of the nu-m* Ihe purposes of tliu act " Notices, (35.) A notice may be served by the company upon any member either personally, or l)y sending it through the post in a pre- paid letter addressed to such member at his registered place of abode. (36). Any notice, if served by post, shall be deemed to have been 1008 THE COMl'ANIKS ACT, 18G2. Ai'PKNDix V. Bcrvod at (lie time when the letter cnTitaiiiin^; the huiul' woiil 1 p J. 1)0 delivered in the oriliimry (■(iimho of the jM)«t ; and in ijiovin > such Hervieo it filuill be HUtliiient to prove thnt tjie l(tii,r mil! taininy the notice wan jirojjerly nddreH.sed, mid jmi into tliu poBt utiice. IFindiitij up. (37). The company Khali he wound iiji voluntarily wliencvor an I extraordinary resolution, as delined by the (.'omiianies mt I 18G2, is paHHed, requiring the company to be wouml u]) volun-l tarily. Names, AiUlrcsscs, and DnHcriptions of Siil)8criber3. "1. John Jonen of " 2. John Smith of "3. Thomas (Ireen of " 4. John Thonip.Hon of " 5. Caleb White of " 0. Andrew ]5rown of " 7. Crosnr White i.f 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 Mercliuiit, Dated the 22nd day of November 1H61. Witness to the above sij^natures, A. B., No. 13, Hutc Street, Clerkenwell, Middlesex. FORM C. (See §§9 & 14.) Form C. Memorandum and articles ok association ok a company mmithd BY GUARANTEE, AND HAVING A CAPITAL DIVIDED INTO SHARKS. . ' . Memorandum, of asuociation. 1st. The name of the company is, "The Highland Hotel C'oiiipaiiyJ Limited." 2nd. The registered office of the company will be situate in .Scotland. 3rd. The ol)jects for which the company is established are "tlie fanli'l tating travelling in the Highlands of Scotland, by providing liotels aiidf conveyances by sea and by land for the accommodation of tra\'elkTs, and the doing all such other things as are incidental or conducive to thu attain^ ment of the above object." 4tli. Every member of the company undertakes to coiitrilmte to tlid assets of the company in the event of the same being womul up duiiiij| the time that he is a member, or within one year afterwanls, lor piiyi ment of the debts and liabilities of the company contracted Iji'tbre the tiin^ at which ho ceases to be a mcmljer, and the costs, cliarges, ami exl)^;ll^ winding uj) the same, and for the adjustment of the rights of the enutnl butories amongst themselves, such amount as may be required not ceeding twenty pounds. We, the several persons whose names and addresses are sulisevibed, aij desirous of being formed into a company, in pursuance of thij nienm randum of association. It 25 A 26 VICT. CAP. 89. — schbpi'i.e u. 1009 Namei, Aililreiises, (iml DoscriptionM "f SubscrilmrH. 1. .loliii JoiR's (if ill the county of Mi'iilmnt. " 2. .Ii'liii Smith of •• 3. 'riidiiias (Srocn of " 4. Joliii 'I'Jionipudii of 5. Calub White of " (J. Andrew Hrowii of •'7. C[wn- Wliiti' of I HAiI the 22nil iluy of Novenibiir 18U1 WitiK".'* to the above sigiiiilures, A. H., No. 13, Hute Street, Clerkiinvcll, Aliadlespx. in the county of ill the coiiiity of ill Ibv county of in tlic county of in th(^ county <>f in tlie county of in the county of ArFENDIX V. Form C. Of A COMI'ANV MMITKD ,'IDED INTO SH.VUKS. lighland Hotel Company^ „ be situate in Seotland establislied are " the tacilij by providing hotels aiiJ lodation of travulltr^, and or conducive to tlie attain* [dresses are sul^scribed, aij in pursuance of this meni^ \rtifhi of II nKOciat km to (icconipnnii precediiKj iiiiinorainlinii of itHHOciation. (S,rSI4.) 1, Thu capital of tiic company shall consist of five hundred tiiousand lyiffiik ilivideil into five thousand shares of one lumdred jiouuds each. 2, Tliu directors may, witli tiie .sanction of tlie company in general :-ttin;,', reduce the amount of .■jhares. 3, Tlie directors may, with the sanction of the company in general Isttiiiij;, tiiiic(d any shares belonging to the comjiaiiy. i All tlie articles of 'I'able A. shall be deemed to be incoriiorated with ; ■'I'tidus, and to apjdy to the company. several persons wliosc names and addresses are subscribed, agree '.e the luimber of shares in the capital of the company set opposite oia respective names. Names, Addresses, and Descriptions of Subscribers. Number of Siiares taken by each Sub- scriber. ' 1. Julin Jones of ■2. John Smith of '3. Thomas Green of "4. Juhn Thompson of "0. Caleb White of "6. Aiulrow Brown of " '. C'lesar White of in the county of in the county of in the county of in the county of in the county of in the county of in the county of Total shares taken Jlerchant 200 25 30 40 15 5 10 325 Dated the 22nd day of November 1861. Witness to the above signatures, A. B., No. 13, Hute Street, C.'lerkenwell, Middlesex. FORM D. (See §§ 10, 14.) PQI0R.«DUM AND ARTICLES OF A.SSOCIATION OF AX UNLIMITED COM- PANY, HAVING A CAPITAL DIVIDED INTO SHARES. Memorandum of association. I't. The name of the company is " The Patent Stereotype Company." \U. The registered office of the company will be situate in England. h.c. 3 X Form D. DJ-'i 1010 THE COMPANIES ACT, 1862. Appendix V. 3rd. The objects for which the company is established are "theworkiii PQJ.JJJ p of a patent method of foimding and casting stereotype plates, of wliit method John Smith, of London, is the sole patentee." We, the several persons whose names are subscribed, are desirous of licin; formed into a company, in pursuance of this memorandum of a.s rt > c3 ^ CO o ,J3 c3 ^ ;^ .a n 0) m ^ h) P^ ^^ o is 13 o rt rt '^ XTj =+1 O 08 '2 '3 3 ° g Ph ri g-g s (U P " J^ ^1 g o o g-M oj c fl ^ O m O o Jllll S "^ °^ O » • i-H (-•2 " ■"^ tc ij bps-*- •^t r O >, g -=■ a O » " H rt -" ij o ea S S 4> U , » •« o ^ d o .^ ..a a Ai g m (5 V; o H «l ^ o 1 -a « < e •0 m- H •J » H S II 1 .. " (2 , (O o 0> 5* CI " =« g o — = 3 ^1 c a- it (N 3 r- 2 o -i 3 T 2 5. \t!^^ ■■pa 1012 Al'PENDIX V. Form F. Acts rciiealeil. THE COMPANIES ACT, 1862, FORM F. (Sec§ 21.) Licence to hold i,\nds. The lords of the committee of privy council appointril for tlic con:ii(lera- tion of matters relating to trade and foreign plantations licivl.y license i the Association, Limited, to hold the lands Ikieundcr described [iiisfrt description of lanils]. The conditions of this licence are [insert conditions, if anij]. THIRD SCHEDULE. (See § 205.) FIRST PART. Date and Chapter of Act. 21 & 22 Geo. 3, c. 46 . (Parliament of Ireland) 7 & 8 Vict. c. 110 . . 7&8 Vict. c. Ill . . 7 & 8 Vict. c. 113 8 & 9 Vict. c. 98 9 & 10 Vict. c. 28 9 & 10 Vict. c. 75 10 & 11 Vict. c. 78 11 & 12 Vict. c. 45 12 & 13 Vict. c. 108 19 & 20 Vict. c. 47 20 Si 21 Vict. c. 14 20 & 21 Vict. c. 49 20 & 21 Vict. c. 78 20 & '21 Vict. c. 80 21 & 22 Vict. c. GO 21 & 22 Vict. c. 91 Title of Act. An Act to promote Trade and Miiiiiifuctures regulating and encouraging iiaruierships. An Act for the Registration, Incuipinatiuii, audi Regulation of Joint-Stock ( 'mniiaiiics. An Act for facilitating the winding up the Aliainl of Joint-Stock Companies unable tn meet tli>'p| i pecuniary EngagennMits. An Act to Regulate Joint-Stock liauks in Enuland. ! An Act for facilitating the winding up tlieAllain of Joint-Slock C-'ompanies in Iivlaud imahlet^ meet their pecuniary Engagements. An Act to facilitate the Uissolutiun nf certam Railway Companies. An Act to Regulate Joint-Stock I'anks in Scotland and Ireland. An Act to amend an Act for the Reiiistrati^ Incorporation, and Regulation of Jeint-J^t^ Companies. An Act to amend the Acts for ficilitatiii,;; liil winding up the Affairs df .b.iiit Stuck Oi panics unable to meet theii pciiuiiarv K'l.'ij ments, and also to facilitate the Dissohit; i| and winding up of Joint-Stock Coiiiijanics an| other Partnersliips. An Act to amend the Joiut-Stock rmiipai Winding-up Act, 1848. An Act for the Incor])oration and Hei^iilatiiii i Joint-Stock Companies and other Assuciaii: An Act to amend the Joint-Stock Couip.iii Act, 185G. An Act to amend the Law relating to i!aiikiii| Coj.ipunies. An Act to amend the Act Seven and Eifjht Vij toria, Chapter One hundred ami elewii, fl facilitating the winding u]) the atiairs ol .'"ir Stock Companies unable to meet their peciintij Engagements, and also the Joint-Stuck IJ panics Winding-up Acts, 184^^ and l>4li. An Act to amend the Joint-Stock L'onipaiiic-Aj 185(i. An Act to amend the Joint Stock Conipanii-.\i| 18.'')() and 1857, and the Joint-Stuck Dank: Companies Act, 1857, An Act to enable Joint-Stock liankiiigCuiiipii^ to be formed on the Principle of hm Liability. C)2. ) s. jpointod for tlie considera- jliUitiUiiins licivV.y Ikciiv hold the liuid- luTeumlti' ' litions of this hti'iice ak 25 & 2G VICT. CAP. 89. — schedule hi. SECOND PART (i). 1018 Appendix V. lee § 20o.) Ic of Act. 'rade and Manufiictures bvi nnagin^ pavtucrship. I istration, liicoiiinratioii.andl t-Stoek CoiiiF"'''^- , I i.r the \vindiiv4uiitk;.lliiirJ ipaiiies unahk- llr^''i^ [d Rt'iiulation ol Juiut-MoJ the Acts for fiU'llitathi;: ihl ^lyairs of Joint Stuik L.^ini nici't thoir pivuniwv h'i^*ge to facilitate the \)x^^]^M ,f Joint-Stock ConiiwnK-sani the Joint-Sto.k Conirani^ Cation and Uc.ulatiuH LimeBand..therA>''Ki''""' K'c Joint-stock ConiramJ llht Law rcdating to Eiuikiij L Act Seven and EiKl.t v( Le hundred and -Uu • 1 •indin« up the allaus ul .I'f LlubotheJon>t-^ul.«"« iin Acts, 184f, § 4 ; and, if so, regia-j ler this last act would not , and if not compulsory underl is not compulsory under th(f a. (SeeS20y.) It, ho«cver,| ,vation of the company by charj idered a.s the formation of th| •ithin the meaning of 20 !: 2^ L, § 4, then the registration ( ny is imperative, and the cla isideration cannot legally esu view the writer conceives to I lion to the above four clasa fcoui-se, may be banking co« Trraed under special acts ' k their own. fference to Irish banks, and 1 _■ the Irish act, 33 Geo. 2, c. II |l by the imperial act, 6 Oco.f ! (T Flaherty v. McDowell,] 142, and Copland v. DarM . L. 3.')8. the said trade or business at any place in England e.vceeding the distance Appgymx V. cif sixty-five miles from London, under the provisions of an act passed in the seventh year of the reign of King George the fourth, chapter forty- sis intituled, "An act for the better regulating copartnerships of certain Ituikers in England, and for amending so much of an act of the thirty- ninth ami fortieth years of the reign of His late Slajestj'^ King George the itird, intitnled ' An act for establishing an agreement with the governor anJ company of the Bank of England for advancing the sum of three millions towards the supply for the service of the year one thousand (jvit hundred,' as relates to the same " ; provided, that such first-men- limeJ company shall make out and deliver from time to time to the piiiunissioners of stamps and taxes the several accounts or returns rec£uired ! V tk last-mentioned act ; and all tin provisions of the last-recited act as :j such accounts or returns shall be taken to apply to the accounts or ^tams so made out and delivered by such first-mentioned companies i, if they had been originally included in the provisions of the last-recited i(t. 20 & 21 Vict, c 49, part of section 12. Sotmthstauding anything contained in any act passed in the session Tower to form . !leii in the seventh and eighth years of the reign oi Her present 'ranking part I Jlajetty, chapter one hundred and thirteen, and intituled "An act to j^g^g^^g Kulate Joint-Stock Banks in England," or in any other act, it shall be Wul for any number of persons, not exceeding ten, to carry on in partner- iip the Inisiness of banking, in the same manner and upon the same tonilitions in all respects as any company of not more than si.x persons Id before the passing of this act have carried on such business. ton persons. THE COMPANIES SEALS ACT, 1864. 27 Vict. Cap. 19. .1)1 ad to enable joint stock companies camjing on hisi^iess in foreign countries to have official seals to be used in such countries (k). [IZth May, 1864.] Whereas there have been and may be established in the United liiiiijJoni compames whose business is to be carried on in countries not sute in the United Kingdom, and it is convenient and desirable that hive^ association or the special resolutions contained. 7. Nothing in this act contained shall operate to repeal the iiroviii'^ni of the fifty-fifth section of " The Companies act, 1862," but such settio| shall continue in force, and all acts done or to be done thei-eunder sh be as valid and effectual as if th s act had not been passed. 864. 1862," whose oliject.s ereiuliol'ore lueiitioiieil, official seal for and to itc out of the United ihiill be caiTied on, and mile of or as nearly as ;he toiuiiaiiy, with tlie beil tlu' iiaiuo of eacli hieh it is to be used : upany as aforesaid from ,eal or seals, ami to vary leial seal as is autliorised ' iiiieiit or instnunents in ' ', empower any aj^ent or ' any loeal agfnt, boanl, ' rinder the jtroN-isions ofj I any place, district, urj i-here the business of tlie ! , to affix such official seal I rhich the company is or} r territory, and nu otlierl thereof shall be necefsaryl \- deed, contract, or otkt] •eceding section sliall, m gns, on the one hand, and Mv^euts, lioard, ci.nmiittfeJ ucnt conferring the power,! person or persons, on tki , if any, mentioned in tliel r be there mentioned tlunj of the power sliall liava il. lid shall be athxcd to Anf. ,y writing under bis Iwiia ill may have lieen allixiJj ame was affixed ; and aiijf ■eu duly atlixed within tlid is inscribed on such ?ea, the same extent and U'i [y sealed with the commoj ■eroised by such couipaiiia lexercise the same by theil passed according; to till , shall be exercised by Mic|| Ictions in tlieir artidr ite to repeal tlie provision let, 1862," but such sect.ol be done thereunder >m Len passed. 30 it 31 VICT. cAi'. 131. "THE COMPANIES ACT, 1867." 30 & 31 Vict. Cap. 131. An Act toarrwid " The Companies act, 1862." [•20th Auijiint, 1867.] BE it enacted by the Queen's moat excellent Majesty, by and with the jilvice and consent of the Lords spiritual and temporal, and Commons, in ikis present Parliament assembled, and by the authority of tlie same, as fjlows : Preliminary. 1017 Appendix V. hi .This act may be cited for all purposes as "The Companies act, Short title. i!. The Companies act, 1862, is hereinafter referred to as "the priii- Act to be con- eipalact;" and the principal act and this act are hereinafter distinguished strued as one i-and may be cited for all purposes as " The Comjianies Act.s, 1862 and "^1*'* ^^i^^^ HI ; " and this act shall, so far as is consistent with tlie tenor thereof, !v construed as one with the iirincipal act ; and tlie expression " this act " Li the principal act, and any expression referring to the principal act thicii occure in any act or other document, shall be construed to mean it principal act as amended by this act. 3, This act shall come into force on the first day of September one Comincncenient liiousaiid eight hundred and sixty-seven, which date is hereinafter referred of act. !j as the coinmencement of this act. Unlimited liability of directors. i Where after the commencement of this act a company is formed as a Comiiany may liiiteil company under the principal act, the liability of the directors or have and 40 it. 41 Vict. c. 26, §§ 2 to 5. inmi^ and 43 Vict. c. IS); and ante, p. 4iJl 30 & 31 VICT. CAP. 131. 1010 triliute as an onlinaiy till! rt'milatidns of tin; my diivitdi' or niaiiaf^tr le is liiiVilu to contribute I't (Ifcnis it necessary to iitisl'y tlic ik'litH aii>l lia- hai'i^i::', and I'XiH'nscs of c'll coniiiany, tlie (.'uint, inayev uf mAi eonniaiiy ■ •yvay of set-olV as umU'V al act it may make to a irsuani-'o nf tliis act, tla- be (liivctors ov niauagtr^ proposes any jierson f« o sucli proposal a state- loificewill lie unlimited; .•retary (if any) "f such on accepts such otliceuv his liability will W lui- fault in adding such statt- secretary make default iu enalty not exceedin- f>ne damage which the person efault; hut the liability of i^ted by such default. pal act, whether fonued may, by a special resolu- originally framed or as modify the conditions con- ] as to render unlimited tlie ! . nmnaging director ; and validity as if it had been j ciation, and a copy thereo 1 ly of the memorandum of I I the rescdutiun ; and anyj efault in complying withl principal act, and shall bej f res {m). special resolution, w fi randum of association, Uy framed or as altered bf. 'ut no such resolution lotj lord, of 1868, rules 2 eMq.i 141 Vict. c. 26, §§2 to 5, /'in- 1 Kilucing the capital of any company shall come into opemtion until an Api-enpix V. (iixler of the Court Ls registered by the regi.strar of joiiit-»toek companies, "~ jj i< hereinafter mentioned. ID. The company shall after the dati; of the passing of any .special (Jonipany to n-solution for reducing its capital add to its name, until such date as the '"''' "a''d re- (',nirt nuiy fix, the words "and reduced," as the last words in its name ; ' '"^'"''^ f r" ' ** ,iml tho.se words shall, until such date, be deemed to be part of the name liinited period. ,.f the company within the meaning of the principal act. 11. A company which has pa.ssed a special restdution for reducing its Company to apital may apply to the Court by petition for an order contirming the •'PI''.''' t" tlio reduction ; and on the hearing of the petition the Court, if satistieil that "|" "' i"' . ^, with rcsficct to every creditor of the company who under the provisions of reduction, wludi this act is entitled to object to the reduction, either his consent to the may be made as Kiliktiou has been obtained, or his debt or claim has been discharged or heiein provided. has dcteriained, or has been secured a.s hereinafter provided, may make an opjir contirndng the reduction on such terms and subject to such condi- tions as it deems tit. 12. The expression " the Court " shall in this act mean the Court Definition of the which has jurisdiction to make an order for winding up the petitioning Court. (iiiiipuiv ; and the eighty-tirst and eighty-third sections of the principal act ihall be con.strued as if the term " winding up " in those sections included procet'ilings under this act ; and the CJourt may in any proceedings under moots. ] this act make such order as to costs as it deems tit. 1.3, Wiere a company proposes to reduce its capital, every credit(n' of Credltora en- tht company who at the date fixed by the Court is entitled to any debt or titled to prove iiim which, if that date were the commencement of the winding up of in winding up if company, would be admissible in proof against the company, shall Ije ""^^' "'.'J"'^'' ''^ entitled to object to the proposed reduction, and to be entered in the list ■tiveditors who are so entitled to objoct. The t'nuvt shall settle a list of such creditors, and for that purpose .shall Li.st of ol)jecting sertaiii as far as pcssible without requiring an application from any creditors to be mditor the names of such creditor's and the nature and amount of their ^tUed by tne Itks or claims, aiul may publish notices fixing a certain day or days «ithin which creditors of the company wh •> are not entered on the list an: to claim to be so entered or to be excluded from the right of objecting to the projjosed reduction. 14. Where a creditor whose name is entered on the list of creditors, and Goiut may Jis- «ho3e debt or claim is not discharged or determined, does not consent to pense with con- tie proposed reduction, the Court may (if it think fit) dispense with such pn'^g'Jurl't'v bcina Mii>ent on the company securing the payment of the debt or claim of given for bis jiKh creditor by setting apart and appropriating, in such manner as the debt. '-'ourt may direct, a sum of such amount as is hereinafter mentioneil ; [that is to say,) (I.) 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 t(j set apart and appropriate, 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 con- tingent 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 amoimt for which the company may be liable in respect thereof, in the same manner as if the company were ^r-m 1020 THE OOMl'ANIES ACT, 1867. I Al'I'KNDIX V. Order confirm- \u^ ri'iltiction and minute showing certain particnlars as tlul! iHtration the special resolHti"ii Le elfect. ished in such nianiiv.r a.< tli' 1 the registration of tlv,' wh nclusive evidence tluil all tt | eduction of capital liavu 1» onipany is sucli as is statwl ia | )e deemed to he sul)stitutO(l k j of association of tlie m\i\&. ct to the same altcwtioiis ,i- 1: | norandum of association ; ai.! ;r of the company, whetlkriitl ' share to any call ov contrili;-l any) between the anioimt wliiii I ut of the share as tixcdbythtj respect of any deht ov tlaiint. a company under tlii* act, is ml lings taken with a view to SM with respect to his claim, Ell fv such reduction the company isj h section of the priiaiial ii^.tJ tebt or chum, every peKunrol [ of the registration of the onlttl L capital of the company « U such debt or claim im muomfl have been liable to couttH .ud up on theday vnortM,^ oundup.theCourt.ontluaHi he was ignorant of the pi«"J ,r of their nature and dkd m3l ;ettle a list of such contril-iu. I and orders on the coutnlut.r.a r in all respects as il tkv'j but the provisions of tins >rt" [butoriesof the company am ■ embodied in every copy of J lits registr.ition ; and f auyc^f Ithe provisions of tbissectna lound for each copy iin'«I*«l lector and manager of the coiuFi ^ho shall knowingly and wilfully authorise or permit such default shall incur tlip like penalty. 19. If any director, manager, or olUcer of the company wilfully conceals ttenamc of any creditor of the company who is ciititk'd to ()hjf(.t to the proiiosed rt'duction, or wilfully miMrep". The lowers of making rules concerning winding up conferred by the I (ilk- hundred and sevi:utieth, one hundred and sevcnty-tirst, one hundi'ed aivl seventy-second, and one huiidied and seventy-third sections of the 1 priiiiipid ail shall respectively extend to making rules concerning matters in which jurisdiction is by this act given to the Court which has the power iliiiaking an order to wind up a comjiany, and until such rides are maile tilt practice of tlie Court in matters of tlie same nature sliall, so far as the ame is applicable, be followed. Subdivision of aharat (o). 21. Any company limited by .shares may by special resolution so far Inplify the conditions contained in its memorandum of association, if lliorised so to do by its regulations os originally framed or as altered by liUml resulution, as by subdivision of its existing shares, or any of them, Ito divide its capital, or any part thereof, into shares of smaller amount Itlian is tixed by its memorandum of association. Provided, tliat in the subdivision of tlie existing sliares the proportion IWtween the amount which is piaid and the amount (if any) wliich is unpaiil Ion each Axixiv. of reduced amount shall be the same as it was in the case of Itlio existing share or shares from which the share of reduced amount is I(lerivi-d. ii. The statement of the number and amount of the shares into which Itlie capital of the company is divided contained in every cojiy of the meiiio- janduni of association issued after the jjassiiig of any sucli special reso- Ihtioii, shall be in accordance with such resolution ; and any company which makes default in complying with the provisions of this section shall inair a penalty not exceeding one pound for each cojiy in respect of which Kcli default is made ; and every director and manager of the company who nowmgly or wilfully authorises or permits such default shall incur the like penalty. AppEMtirx V. Puriulty for con- c'uitlinentot' iiaiiiu of cri'ililor (ir iiiisreiircsent.i- tion ot his iluht, Power to nmku rules extended to makiiii; rulcM ooiiecrniiij,' in.'ittcr.s ill wliieli jiiiisdii'timi is given hy tiii.s ni:t. Shares may ho dividod into .shiircs of smaller amuuiit. Proportion lietwecn uinoiints paid and unpaid on bliares to be preserved. Statement of iinuilier and amount of .sliarcs as altered to ho emliodiod in every inenio- raiidum of association sub- sequently issueil. Associations not for profit. 23. ■\Vliere any association is about to lie formeil under the principal act Special pro- I' a limited company, if it pn'oves to the Board of Trade that it is formed visions as to lot the purpose of promoting commerce, art, science, religion, charity, oj. a'^soeiations py other useful object, and that it is the intention of such association to purposcj not Ipi'ly the jirotits, if any, or other income of the association in promoting of gain. Is ulijects, and to prohibit the payment of any dividend to the members of |ii'as.«oei:iiie;i, the Board of Tr.ide may by licence, under the hand of one • the .secretaries or assistant secretarie.s, direct such association to lie regis- M with limited liability, without the addition of the word limited to its (o) Ante, p. 405. ir-: 1022 THE COMPANIES ACT, I8t57. Appbndix v. iiiiine ; and bucIi association may be regiMtcreil accordingly, and ujion ren*. tration Hhall enjoy all the iiriviifges and be Hubject to the 'ilili^ntij,,,, by this act inipoHed on limited conipanicH, with the exceptions tlni m.^,, of the provisions of this act that reiniire a liniitcil company to u-n; tliuwun limited as any i>ait of its name, or to publish its name, or to mihI a |i,(„ its members, directors, or managers to the registrar, shall iipjilv tu association so registered. The licence by the Board of Trade may be granted uponsiuh (diulitioiii and siibj(;ct to such regulations as the board think lit to impose; and Mith conditions and regulations shall be binding on the association, inul mav at the oi)lion of the said board, be inserted in the nienioranduui ami aitidi of association, or in both or one of such documents. Company may have Homo and others nut. Calls upon nhares. 24. Nothing contained in the principal act ( ji) shall be deemed to pivvim (Uiy coiiipnny under that act, if authorised by its regulations us diirinii sliarcs fully jiaid jVanied or a> altered by special resolution, from doing any (jne oi' iikho „f the followin;; things ; namely, — (1.) Making arrangements on the issue of shares for a ilill'dxiue between the holders of such shares in the amount of culls lulj..- j^" paid, and in the time of payment of such calls : (2.) Accepting from any member of the company who assent." tkiot" j the whole or a part of the amount remaining unpaid on any flwtc or shares held by him, either in discharge of tlio aniuimt i a | call payable in resjicct of any other .share or shares laid ],\ hii or without any call having been made : (3.) Paying dividend in iiroportion to the amount jwid n]i mi idi I share in cases where a larger amount is paid uji i>n smiiu >1i.im| than on other's (q). 25. Every share in any company shall be deemed and taken toliavel been issued and to be held subject to the payment of the whole aiiiiniiit I thereof in cash, unless the same shall have been oUierwise deterniiiiwlliyaj ontract duly made in writing, and filed with the registrar uf jl)illt•^twk Siiares to he issued and held subject to pay- ment of the whole amount in eash, unless it lio otherwise determined by a contract regis- tered at or iiefore the issue. 26. A company shall on the application of the transferor of any sharer I Transfer m.ay be interest in the company enter in its register of members the i anie '' registered at transferee of such share or interest, in the same manner and request of game conditions as if the application for such entry w v it^ transferor. x r / \ transferee (s). companies at or before the issue of such shares (r). Transfer of shares. (p) See ante, pp. 343 -nd 455. (7) Oakhank Oil Co. v. Crum, 8 App, Ca. 65, and ante, p. 455. ()•) See ante, pp. 395 and 783, and further as to the meaiung of issue, 1 Ex. D. 242 ; 9 Ch. 654. See, also, British Farmers', etc., Co., 7 C'li. D. 533, as to companies being estopped by their certifi- cates from denying that shares are paid up. (s) Sec act of 1862, §§ tS ..nd35,i' as to the person to procure the re;;i^ tion of the transfer, sec ante, p. l'- and for remedy if registrar rtfuies iiitli K! a^Hociiition, luul iiii\y,iit menionimluui mul iirtido iits. ) shall be (leenicd to pruvi'Ui its rugulalions ii^* .)ri;5iiially 1 doing any mut m' ni'*"!' of shaves for a ililtduiiw u the amount of uallstoW such calls ; ;onipany who asM'ut.< tkiot» inaining unpaid on any flwtt ischuvge of the iinwiiiit ■)( a share or shiuvs licUl U \m | de : , le amount paid up mi wdi It is paid up on some shatrt I deemed and talccii to kve I .ment of the whole a.i-l .uo-nerwisedeternuuedl.ya the registrar of jolUt■^l«k I the transferor of any Aar-t ,f members the ' une ^ ■ If n\anner ain' ,ch entry w '" ""^ Lacto£1862, §r^-!^""i''^:' le person to procure the rc;i_ ftho transfer, sec ante, p. !■• I i remedy if rc^^^^ 'f'^'J la transfer on ll.eg.-ouml that i| tperly stamped, .ce (V«<« f \r of Joint-Stock CVs., '^1 «•"■ 27. In the case of a, company limited Ly shares the company, if autho- ^Varrants for ixd 90 to do by its re^'iilations as originally franuid or as altered by fully paid u|i .'tcial resolution, and subject to the provisions of such regulations, may, sliarcs or stuek lith rfDPct to any share whicli is fully paid up, or with resiiect to stock, "'"'■'' ''o ';"'"""' ' ', ■ • 1 ; . .• ^1 ^ ,1 1 ,. ,1 name of bearer. iviiio under tlu'ir common seal a warrant stating that the hearer ot the wrrant is entitled to the share or shares or stock therein s])eci(ied, and jiiv provide, by coupons or otherwise, for the payment of the future (liviileiids on the share or shares or stock included in such warrant, hcrein- ilur referred to as a share warrant. 2''. A share warrant shall entitle the bearer of such warrant to the shares direct of share M stock specified in it, and such shares or stock nniy be transferred by the warrants. i (Itlivery of the share warrant. Transfer of ■■"O The bearer of a share warrant shall, subject to the regulations of the *'''^.''«'' "-V " delivery. Itoarcr ef a I company, be entitled, on surrcmdering such warrant for cancellation, to be his name entered as a member in the register of members, and the ^^^,^^,^ «irrint Mapany sliall be responsible for any loss incurred by any person by reason ,|,;,y tic entcM-cd cfthe company entering in its register of members the name of any bearer in the re^'ister of o[a share warrant in respect of the shares or stock specified therein without niombers mi Ike 4ire warrant being .urrendered and cancelled. delivering up tlio , .. , T I 1 ■ 1. , warrant tor 30. The bearer of a share warrant may, u tfie regulations ot the company Kuieellation. Hiprovide, lie de(MiU!il to be a nuanber of the comj)aiiy within the meaning Kij.Milations tithe prineipal act, either to the full extent or for suidi purposes ius may of tlie eoinpaiiy l«prescril)LMl by the regulations : ""ay niako tlie Prfiviiled, that the bearer of a share warrant shall not be (lualified in '"-''"'*"' "' ^ „ ,' , , .,. , • 1 .,.,.,. sliiiio warrant a K-ped of the sliares or stock specihed in sucli warrant lor being a director ,|,m„iiQ,., \,at not uraanager of the company in cases where such a rpialification is iirescribed so as to qualify k the regii' It ions of the company. jiii" as a direstor 31. On tlie issue of a share warrant in respect of any share or stock the '" I'-"*!'""*' "' company shall strike out of its register of members the name of the member ' titii inteied therein as holding such share or stock as if he had ceased to ,i'i"t('r"wl"ix''' ke a member, and shall enter in tht> register the following particulars : "hare warrant (1.) The fact of the issue of the warrant ; issued. (2.) A .statement of the shares or stock included in the warrant, dis- tinguishing each share by its number : [i.) The date of the issue of the warrant • '• ' 'intil the warrant is surrendered the above particulars shall be deemed t . |)artie liars which are re(iuired by the twenty-fifth section of the ftincipal uet to be entered in the register of members of a company ; and atheiiir nder of a warrant the date of such surrender shall be entered «■* if it the date at which a person ceased to be a member. 32. Au^;r the issue by the coini)aiiy of a share warrant the annual Particulars as to "mimarj' lenuired by the twenty-sixth section of the principal act shall sh'^e warrants Mitain the following' particulars, — the total amount of shares or stock for ]° ''ocontained in hiiich share warrants are outstanding at the date of the summary, and the iKuil amount of share v. ,■ rants which have been issued and surrendered ppectively since the last summary was made, and the number of shares or limount of stock comprised in each warrant, '!3, There shall he charged on every share warranta stamp duty of an Stamps on sliaro Iffiioimt equal to three times the amount of the ad valorem stamp duty warrants. Fiii.'h would he chargi le on a deed transferring the share or shares or 1024 THE COMPANIES ACT, 1867. 13: Api'KNmx V. Penalties on persons committing forgery in re- lation to share warrants or coupons, or attempting to defraud li.y means of forged warrants, kc. Penalties on persons falsely personating owners of shares or share warrants. Penalties on persons engrav- ing plates, &c. Contracts on behalf of com- lianics, how to lie made. stock specified in the -waiTaiit, if tlie consideration for the transfer wc the nominal value of such share or slipres or stock (t). 34. Whosoever forges or nltei's, or offers, utters, disposes of, or put, u\ knowing the same to be forged or altered, any share warrant or coupon ( any document purporting to be a sliare warrant or coupon, is.sa"d in m suance of iliis act, or demands or endeavours to obtain or receive aii'slun or interest of or in any comiiany under the principal act, or to receive au dividend or money iiayable in respect thereof, by virtue of any sucli foive or altered share warrant, couijon, or document, purporting as afori.'.>iiiii knowing the same to be forged or altered, with intent in any of tiie Uff aforesaid to defraud, sliall V)e guilty of felony, and being cunvided therio shall be liable, at the discretion of the Court, to be kept in j)eiml servitudi for life or for any term not less tlian tive years, or to be imprisoned for anv term not exceeding two jears, with or without hard labour, ii-.id with n without solitary confinement. 35. Whosoever falsely and deceitfully personates any' owner of anvsliar; or interest of or in any company, or of any share warrant oi' cmipon issued in p'iisiiance of this act, and thereby obtains or endeavours to ohtain anv such share or interest, or share warrant or coupon, or receives or cndcavouB to receive any money due to any such owner, as if such offender were tk> true and lawful owner, shall be guiUy of felony, and being convicttil thereof shall be liable, at the discretion of the Court, to be kept in ixi. J servitude for life or for any term not less than five years, or to l)e iiu-j prisoned for any term not exceeding two years, with or without liaid labour, and witli or without solitary confinement 30. Wliesoever, without lawful authority or excuse, the proof wLoki shall Ije on the party accused, engraves or makes upon any plate, W'..] stone, or other material any share warrant or coupon purpnrtin;,' to Wi share warrant or coupon issued or made by any particular coniiiany iiii'irr and in pursuance of tliis ac', or to be a blank share warrant or cmipon !--i or made as aforesaiil, or to lie a part oi such a share warrant or coupoii. :r uses any such plate, wood, stoui , or other material for the uiakin;,' or ]irii;t- ing any such share warrant or coupon, or any such blank share warraiit r| coupon, or any part thereof respectively, or knowingly has in Iiis ciw «' or possession any such jdate, wood, '^'•ne, or other material, shall lie,'iiild of felony, and being convicted the ' a shall be liable, at the dison^iinii i the Court, to be kept ni penal servituile for any term not exceedhi;,'li'Urifrd years and not less thai: five years, or to be imprisoned for any term kJ exceeding two years, with or witliout hard labour, and with or witki'Jl solitary confinement. Contracts (a). 37, Contracts on behalf of any company under the principal actiMv'^ made as IVdlows ; (that is to say,) ^|1.) Any contract A\hich if madt' between private peisons wouMWrJ law reciuired to be in writing, and if made according toKas.!:* law to be under seal, may be made on behalf of the couipaavi writing under the common seal of the company, and sialiciiiirj^ mav be in the .same manner varied or discharged : .f (<) A penalty of 50/. is imposed upon the company, and its managing director) tecretary or principal officer, if this sec- tion is not observed by 33 X 34 ^i' 97, § 127. (u) Ante, pp. 220—229, 867. 30 i't 31 VICT. CAr. 131. 102: tion for the transfer were ,ck (t). ers, disposes of, or pits uff, sbare warrant or con\m, ^.t it or Condon, issivJ in ymv- ) obtain or receive aii;; sliate ncipal act, or to receive any ^ l,y virtne of any sudi fo^t^l nt, purporting? as aforf>iU.i, th intent in any of tlie o,i.-- and lieing convidwl tlwvt.i to 1)6 kept in penal smitttle^ 9 ortolje imprisoned fur aviv I ,ut hard labour, i'uil witli 'T | onatesany'ownerofanyskrel liare warrant or coupon u»i or eiideavoars to oUm any .iron, or receives or en.leavoui* ,. usif such oft'ender were tlie f' felon \-, and being convicyl the Court, to be kept in lidil than tive yeai-s, or to k iin-l years, with or without limll ment , ,1 ,r or excuse, the proof wImv:!! makes upon any plate, xv-'J or coupon purporting to W J any particular company uiK'tl L^iare warrant or coupon' V a share warrant or conpoii, ij Laterial for the making or vniitl Ly such blank share Nvarr;«>t . " r knowingly has in ins «.. brother material, skill 1-^"J'1 [l he liable, at the discrdmn ■ , anv term not exceeding 1"U«- . Unp.visone,lforanyten.u ,1 labour, andwithor.itWJ ii.) Any contract which if nnule between private persons wouM lie by law required to bo in writing, and sij,'ued by tlie parties to be charged tluu'ewith, may be made on behalf of llio company in writing signed by any jierson acting under the express or implied authority of the company, and such contract may in the same ma.iner be varied or discharged : (3.) Any contract which if made between private persons would by law be valid although made by parol only, and not reduced into Avriting, may be made by parol on l)ehalf of tlu; company by any person acting imder the exjn-ess or implied authority of the com- ]iany, and such contract may in the same way lie varied or dis- cliarged : I Aihl ;ill contracts made according to the provisions herein contained shall 1 1? elfectiuil in law, and shall be binding npron the company and their wcssors, and all other parties thereto, their heirs, executors, or admiuis- |trjt>ir>, as tiie case may be. 38. Every prospectus of a company, and every notice inviting persons 1 10 >iibscribe for shares in any joint stock company, shall specify the dates liailthe names of tlie jiarties to any contract entered into by the company, lor ihf promoters, directors, or trustees thereof, before tlie issue of such Ipruspectiis or notice, whether subject to adoption by tlie directors or the iMupaiiy, or otiierwisc ; and any prosjjoctus or notice not s|n.'cifyiiig the liirai; sliall be deemed fraudulent on tile i)art of the promoters, dii'ectors, la\ ('tliLers of the conijiany knowingly issuing tlie same, as ivgaiils any I|":Njii taliii.g shares in the company on llie faith of such prospertus, unless llciliall have had notice of such contract (y). AlM'KNIM.v V. [• under the principal att nuy ' L-een private pei>^onswouUWi C if made according to L.Kl- tl behalf of tlie coniJ^J. If the company, and siKliont^^ lit.d or discharged : ,;3„otobBervedby33.v3tVi' I„)^nte, pp. 220-229. I'l'o.-fpeetus, kc. to speeit'y dates and iinnics of parties to any contract made prior to issue of such prospectus, i^e. , and otlicr- wisu to 1)0 ileciuecl t'ran bi- leiit on part of jiei'sons is.suui^ as a^Minst persons taking sliares on faith thereof. Company to liold nit'uting within four uio;;t,lis after registra- tion. Meetings. 3!). Every I'onijiany formed under the jirincipal act after the comiueiice- fciituf tiiis act shall hold a general meeting within tour months alter its kidiiuninduiu of association is registered ; and if such meeting is not Indd fccMipany shall be liable to a penalty not exceeiling live pounds a day IrtviiT day after the expiration of such four montlis until tlie meeting is [tlJ; and every director or manager of the company, and every subscriber (ik meiiiorandum of association, wlio knowingly authorises or permits Wault, shall be liable to the same ]>enalty. U'iiiiUiiij II f. liO, Xo fon'-.ibutorv of a comnanv under the niincipal act (r) .sliall be Oontrihutory L, 11 ,. . "... .. ■ ,■ , 1 .1 . when not l^'lcol prcsunting a petition tor winding up such compiany unless the ^ ^^.^j.|.^ j ^^^ pWis of the company are reduced in number to less than .seven, or jn.,,^(.nt winding Jlc" tlie .shaivs in resjieet of wliich he is a i;ontributory, or some of them, np petition. Pcnvi'iv originally allotted to him or have bueii hehl in) by him, and fi-ti-rwl in his name, for a period of at least six months during tin; Iktwii mouths previcnisly to the commeiicei.'eiit of the winding up, or |f Ji'volvcd mioii hiiu through the deatli of a former holder : rMiilcil thai where a share has during the wlu.lo or any part i.f the fiiMiths been held bv or registei'ed in the name oi the wife of a eontri- "i Jeeu/i(f, pp. !1], 1)2. Sec act of ISO:!, § 82. Ill', ((/) Sec Wiila Wi/ialaJ, iL-c, <.'<>, "1\ Cli. 1). i.i.\ 3 u flT^ifV 102(> TIIK COMl'ANIKS ACT, 18G7. ArPENDix V. Winding up in England may be referred to county court. Transfer of winding up from one county court to anotlitr. Parties aggi'ieved by decisions of county court judge in winding up may appeal. Powers to frame rules and ordcr.s under .sect. 3"2, of 19 & '20 Vict, c. 108. Scale of ccsts to be framed by the judges. butory cither belore o); afttv her mamagc, or hy or in tlic Hiiiiu: of nw tviistee or trustees for tmch wife oi for the coutriljii^ory, siuh sluiu- slujl for the purjioses of this section he deemed to have heoi '.elil by iiud i(;;i>. tered iu the name of thi; contributoiy. 41. ■\Vhevc the High Court of Chancery iu England niakca aiumlir for winding up a company under the principal act, it may, it' it tliiiik« tit direct all subsecpient proceedings to be had in a county court laid uinltr an act of the .session of the ninth and tenth years of the reign of lur present Majesty, chapter ninety-five, and the acts amending the saiin^ ■; ; and thereupon such county court shall, for the purpose of windinj,' ii]! the company, be deemed to be "the Court " within the iiKaiiing c( lliL-jniu. cijial act, and shall have, for the i)urposes (tf such wiiiding up, nil ijic jurisdiction and powers of the High C(nut of Chancery («). 42. If during the progress of a winding u]i it is made to apiKuv tiMJi.' High Court of Chancery that the same could be more couveniuiitly pro- secuted in any other county court, it shall be competent fur the Hi;.'lil Court of Chancery to transfer the same to such other cnunly mirt, lunll thereupon tlie winding up shall jjroceed in such other counly cduit. 43. If any Jiarty in a winding up under this act is dissati.-licd witlitl.oj deterniinatiiiU or direction of a judge of a county court on any niiittci- in] such winding up, such party may appeal from the .same tu lln' Via- Chancellor named f(jr that purpose by the L.n'd Charcelhir liy <;iiiti;il| order : Provided that such party shall, within thirty days after suili iUv\-\ niination or direction, give notice of such appeal to the other party nrj his attorney, and r'so depcjsit with the registrar of the county court the! sum of ten pounds as security for the costs of the appeal; and tlio .-:iiil I Court fif Ajipeal may make such iinal or other decree or order as it tliiiiksj tit, and may also make such order with respect to the costs of tlie siidf appeal as such Court may think proper, and such orders shall lie final ''. 44. The county court judges apjiointed or to be appointed by tln' Liii Chancellor from time to time to frame rules and orders for n'i^ulatiii,!,'tl;e| practice of the courts, and forms and proceedings therein, under tlic thiiiy-^ second .secti(m of an act passed in the nineteenth and twentieth yi-ai-nn till! reign of her present Majesty, chapter one hundred and eight, fli frame the rules and ordirs Ibr regidating the jiractice of the county ciii;i;J under this act, and forms of proceedings therein, and from lime t" ii:ii«| may amend such rules, orders, and forms ; and such rules, onliis, ;niB forms, or amended rules, orders, and forms, certified under tlie li;mil> dS such judges or of any three or more of them, shall ))e subn'itled ti'tlia Lord Chancellor, who may allow or disallow or alti'r the same, ami from time to time ; and the rules, orders, and forms, or amended nili ordei'.s, and forms, so allowed or altered, shall from a day to be naniwl I tlie Lord Chancellcir be in force in every county court (c). 45. The county court judges mentioned in the last section sliall empowered to frame a scale of costs and charges to be paid to eounsil "H attiirneys with respect to all proceedings in a ^\inding uji .uider llii-*S (r) The act now in force is 51 & 52 Vict. c. 43 ; tlie County Courts act, 18S8. (a) Sec act of 1802, §81. {b) The appeal Is now to tlie Divisional Court, .see Judicature act, 1873, 30 i,^ 37 Vict. c. 60, § AC) ; sec also 51 & 52 Vict. c. 43, §§ 120-132. ((•) Under this section an order been made, adopting the orders .imllVrni of the Chancery Division fO far a- t^ same are applicalilc. !-'c: Cuiinty I'-ail Rules, 18!-0, Order XLIl. (G7. THE JOINT STOCK COMPANIES AUnANGEMENT ACT, 1870. 1027 |)V ov in tlu' iiuiim ol' any :ribu*:ory, such sluiiv Ad\ ict, it luiiy, it' it tliinlis tit, n county court liukl umltr 1 yeai'.s (jf tlio, vci;,'!! of litT ts auiiiiiiliiit^ tliu same i';. ; imi'ltose lit' wiuiliiiL: wy tin: I the lufUiiiiiL; lA llw iniu- ' such wiiitliii;-! "1', nH ''if (hiuieciy ((()• il irt uuuli! to uiiiii-av til tlr 1 be more couvLiiifiitly ivi,- e couipetent fur tk Hi-!i idi other (;ouuty cnuit, iitnl h other county niiivt. is act is ais^;lli^lil•ll witli tlo .inty court on miy iiiuttn- in om the same to tlif \i«- L.u'il Chancellor U p-\wA thirty elays after si\ili iktd- ipeal to the otbuv inivty nr var of the county omit tle^ of the appeal ; and tlie sinl Y decree or onler a> it tliinks icct to the c(ist:< of tlie siiill uch orders ^liall ho final '■ ,.) he apimhiteil liy tli^' l/ull iiid orders for rei^iilatiiis; tl;e| IJ.S therein, un-ler tlif tliiviyn ^■uth and Iweiilietlnxai-nfi hundred anil ei;^lit, ^liill| ivactiee of the ^'ouiity o-ui;^ .rein, and from time tu iiii:8 iuid such rules, ovik'is. m orlilied under tlie li:mil> 4 ■in, shall he suhieittiilti'lW or alter the same, ami ' u.d forms, or anieiiiUilvijl. from a day to he iiaim-l 1']^ ;ty court :V). ,n the last section shall ovstohepaiiltoeim-i'liiij " w indin- up .uiiler tin- «9 orilov 1 20-13-2. iidcr tliis section a" ulc,acloiitingtl.eovaer«an.it«'J ChimaTV Division sofam-tl i: ..>1,1.. Si;^ ('ouiity ' -'Il 185^6, Uidov XLII. mill from time to time to amend such scale ; and such scale or amended Aitestux V. nale, ccrtilied under the hands of such judi^'c?: or any three or more of tlaiii, shall he suhniitted to the Lord ('hunccDur, who from tinu' to time luav allow or disallow or alter the same ; and the scale or amended scale so alluweil or altered shall, from a day to lie named hy the Lord Chancellor, l,iii fiiivc in every county court. IG. Tlie ref,'istrars and high hailill's of the county courts shall he renin- Rcnuuieration of watnl for the duties to he performed liy them under this act, hy receivini;' registrars ami ti iliL'ir own use such fees as may he from time to time authorised to he 'j'S^'.' ''o'll's fur 11 111 1 1 il • • <• ii rp iliiti'.'s aiulcr Iskiii liy any orders to he made Ijy tlie conimissntiii'i's ol tlie 1 reasiiry, , i • , ,. , ,f.,^ willi tlic consent of the Lord Ciuincellor ; and the commissioners of the m- |,y ;,||,,„';,nc(.'s'. Tivasury are hen-hy authorised and empowered, with such consent as iifnivsaiil, from time to timt; to make such orders : Provided, that it shall If lawt'ul for the said commissioners, with the like consent as ahnvsaid, U ail oilier to direct that after the date named in the order any registrar iri' lii;;li hailitf shall, in lieu of receiving such fees, he jiaid such fixed or linitualiii;.; allowance as may in each case he thought just ; ami al'ter such ilatf tin: said fees shall he accounted for and ]iaid over hy such registrar «rl]i,;,'li liaililf in such manner as may he directed in the order. Saving, 4". Nothing in this act contained shall exem])t any company from the Ooni])aiiios not ;ci(,iiil or third ((') provisions of the one hundred and ninetv-si.vlh section t-'^empted fiuni , ., ■ • 1 t , ■ • ,1 1, ,• f . '. . , kccoikI or third '■; llie principal act restraining the alteration (jf any jirovisioii in any act ,„.ovi.sioiis of 2'> 'I'rarliaiaent or charter. pre & 20 Vict. c. 80, HUCt. I'Jti. THE JOLXT STOCK COMPANIES AKRAX(!EMENT ACT, ISTii. 33 & 34 Vict. Cat. lo 1. .Ill Aii Id Jiicilitdte conipromi.iai and arritiiijcnicids between < ■•editors and 4M,-ehnldirs of joint stock and other comjjanies in liqindai,' ^u (c). [\Oth Awiiisf, 1870.] WiiKUKAs it is expedient to amend the law relating to the liijuidation '■'jiiiiit stock and other companies : Bu it cimctcd hy the (Queen's most excellent Majesty, hy and with the Ite and consent of tlie Lords spiritual and temporal, and Commons, in tliisprescnt Parliament assemhled, and hy the authority of the same, I i--f"llii\vs : 1. This act may he cited a- " The Joint Stock Companies Arrangement ^''oi't title. |-V.t,i8;o." -■ Where aiiv compromise or arrangement shall he proposed hetweeu a Wheio oompro- apaiiy which 'is, at the time of the passing of this act or afterwards, in J!^;;"t','f|l^!;|^^(;,y |tle course of heing wound up, either voluntarily or hy or umler the super- ,„,,y „,.,ioi- ,i jTi.ioiiiif the Coiiri, under the Comiuinies acts, IHOi and 18(i7, or either nicetiii,:^ cf li'tkiu, and the creditors of such ciimpanv, or any class of such creditors, creditms, S:c. to '^ - Jcc diitr, pp. 7]i>, 711. I'^.'itJ.S, 1.. 5tS). 1028 Al'l'EXDIX V. Iiitei'iiretation, Act 1111(1 Com- jiiuiit's act to Ijc read loi;t'tlic)'. THE COMPANIES ACT, 1877. it shall be lawful for the Court, in addition to any other of its imw, the application in a summary way of any creditor or tlic ]ii|uiih; order that a meeting of sui-li creditors or class of creditors ,-iliall lie nioned in such manner as the Court shall direct, and if a majoi nuinb{ r re])resentinf,' three-fourths in value of such creditors or d, cretlitors present either in person or Ly proxy at such nieetin;,' slmll to any arrangement or compromise, such arrangement or co:iijiioiiii. : Mc it enacted, &c. ; 1. This act may be cited for all purposes as the Coin]iaiiics iul 2. This act shall, so far as is consistent with the tenor thereof, strued as one with the Companies acts, 1H62 and ISfiT, and the s^ii. and this act may be referred to as " The Companies acts, 18C:', and 1877." W. The word "capital" as nsed in the Companies act, 18C7 include ]iaid-up cajjital : and the power to reduce capital coiifiiii that act shall include a ])ower to cancel any lost cajiital, or any unrepresented by available assets, or to pay olf any capital wliiiii ni; in excess of the wants of the company ; and jiaid-up capitiil iii, reduced either with or without extinguishing or reducing the liiiM any) remaining on the shares of the comjiany, and to the extent w such liability is not extinguished or reduced it shall he decmeJ jireserved, notwithstanding anvthing contained in the Coniiiiinii- 1807 (/). 4. The provisions of the Companies act, 18()7, as auiciuleil liy tlii shall ai)])ly to any company reducing its caiiital in jiursiiance of tli and of the Companies act, 18G7, as aniended by this act : Piovided, that where the reduction ot the capital of a company Jui involve either the diminution of any liability in respect i.)^ iinpaiil or the payment to any shareholder of any paid-up capital, — (1.) The creditors of the conijiany shall not, unless the coiiil * J (/) i^ee uiit-, Jill. 40'J ct nrq., and 43 Vict. .\ V.K CT, 1877. 311 to iniy otlii'i- 111 its irtiwds, .,ti ;iy cvetlitui' ov Ihu liiiiiuklur, lu clil!;:* of Cl'UlUturs sllilU lit.' >lllii. hall direct, and it' a iiiiijuriiy ii, XQ of suck ciudituiJi or ila.-.- 4 iiroxy at such nuitling i^liull Kkt arraiigtiiiiuiit or coiiiiiroiuise ^liiill, le bimiiiit; oil all ^Ul■U iiiilitnr- r id also oil tlif li(iuid;itin' ;iiiu m\- shall mean any cuiniMiiy liu'ulf t. ;t, 18C2." acd as part of " Tlii; Cuini«iiic. CS ACT, ^^"■ i\ Cav. :20. ,VsrtrM./lBG2(i/„'l8G7. inud wht'tlu'r the powrr giuu lyil; I I of reduciui^ it^* caiiilul nl>iul- i^i remove such dowlits : iirposes as the Coinpiinius iut, h", tclll with the teU.irtkTU0t,1aM.ir] ,, 1W62 ami 18157, :uid the siU.l idi| 'The Comiiauie^ aL'>, IBC:!, l"';.. u the Oomvanies act, IBfiT, Ul ,wer to reduce capital co«fcrmlU-| •id auv lost capital, or any cai'iul .0 vavolf any capital wliidim;.v«l ^^vjaiid paid-up cirpituliu^tj ,„i.:hi..-orrcduci.V thelmliihtj I Upany, and to the extent ,o«« ivduced it shall hcdeeumltJ- contained in the Comramt» a:,| act, 18articuhirs required by law, tlie amount ifiiiiv'i at the date of the registration of the minute proposed to be deemed [to have been paid uj) on eacli share (;/). Anv comjKiuy limited by shares may so far modify the cuiidilious i tiitained in its memoranduni of association if authorised so to do by its iv'iihitions as originally framed or as altered by special resolution, as to tf'lu.e its capital by cancelling any shares whicli, at tiie date of the; passing I M' such rcfiolutioii, liavc not been taken or agreed to be taken liy any Ihrsiiii: and the provisions of " Tiie Companies act, 18G7," slial! not apph- to any reduction of capital made in pursuance of tliis section. 6. And whereas it is expedient to make provision for the rece])tion as K'nl evidence of certificates of incorporation other than the original certiti- ItJttJ, and of cert i lied copies of or extracts from any documents filk' h[ for the purpose of the amiiKinyl rtion of capital M\ n"t '«| ,nt of and for the purposes oil ucli fi. Section imo. hundred and ei^dity-two of the Companies act, 18(12, is Aiteni.ix V. jiewliy repealed, and in place f'-reof it is enacted as follows ;— A hank f)f .^. ^ ,. issue registered as a limited company, either liefine or after the passing; of g'*8f) ^ /gV this act, shall not bo entitled to limited liability in respect of its notes ; repealed, aiul anl llie lueinbcre thereof shall continue liable in respect of its notes in the lialjility of isiiiie maimer as if it had been registered as an unlimited coni]iany; but '""'.'^ ?' 'J*"."" inea'cthe. general assets of the comiiany are, in the event of the company l"si,"ct of notes. Kill" wound up, insullicient to satisfy the claims of both the n(deholders jml the general creditors, then the members, after satisfying the remaining taiiimlsdl' the notedioldeis, shall be liable to contribute towards payment i.ltkdehts of the general creditors a sum equal to the amount received ktlio iioie-hidders out of the general assets of the company. For the pur] loses of this section the expression " tlie general assets of ilic cuiiiiiany ' means the funds available for payment of the general cR'liti'V as well as the note-liolder. It sliall he lawfiil for any liank of issue registered as a limited company iniiiikc a statement on its notes to the elfect that the limited liability «■> imt extend to its notes, and that tlu^ members of the cimijiany coiiliiiue liable in respect of its notes in the same manner as if it had been d^tciwl as an unlimited company. ;, (1.) Once at the least in every year the accounts nf every banking Audit of accounts (I Eipaiiy registered after the passing of this act as a limited company shall "' '"'"'^.'"o it txaiiiiiied by an auditor or auditors, who shall be elected annually by ^' ilie cniuiiauy in general meeting. i) A director or otlicer of the company shall not be capable of being Actid auditor of such company. 3., An auditor on iiuitting office shall be re-eligible. A.) If any casual vacancy occurs in the oHice of any auditor the siuviv- iajaiulitor or audi tin's (if any) may act, Tmtif there is no surviving auditor, tlie Jirectors shall forthwith call an extraordinary general meeting Inr the fiiriw of supplying the vacancy or vacancies in the auditorshiji. j.) Every auditor shall have a list delivered to him of all books kept liv tie company, and shall at all reasonalde times have access to the books aiil accounts of the company ; and any auditor may, in relation to such V.Kjks and accounts, examine the directors or any other oliicer of the comply ; Provided that if a banking company lias branch banks beyond !!ieliniit.s of Europe, it shall be sufficient if the auditor is allowed access to nidi copies of and extracts from the books and accounts of any such kaiich as may have been transmitted to the head ofhce of the banking tonipaiiy in the United Kingdom. (i.) The auditor or auditors shall make a report to the members on the jccouiits examined by him or them, and on every balance sheet laid liefore tk- (unipany in general meeting during his or their tenure of office ; and ia every such report shall state whether, in his or their opinion, the balance Preferred to in the report is a full and fair balance sheet properly tawnup, so as to exhibit a true and coiTcct view of the state of the com- pni-'s atfah's, as shown by the books of the company ; and such report ikU lie read before the company in general meeting. J.) The remuneration of the auditor or auditors shall lie fixed by the »eral meeting appointing such auditor (jr auditors, and shall lie paid by tie company. ^. Eveiy balance sheet submitted to the annual or other meeting of the Signature of m\\xu of every banki7ig company registered after the passing of this I'alance sheet. M .Is a hmited company shall be signed by (he auditor <>v auditors, and 1032 Appendix V. Aiiiilientinn nf 2r. .lftee in llip it were the livst n'j;istriitiuii <•! 1802 to 1879, mill as il' il.' pany was pvevionsly rc;;i-tiTiil .tacts of I'arliaim'iil from ili"-t: limited comiiany. idev this act may register tlim- conferred hy tliis aet, iiftwiili- .•t of Parliament, rnyal cliaii\(h M'irch, l*-*"'.] ellent Majesty, hy and villi tk I iind temporal, aiidCommom, m I the authority of tlie same, ;ii ,.s as the Compauies ad, 18^'t.l with the tenor thereof, k toil- 1 1862, 1807, 1877, and 1879,1 ferredtoasthe('ompanic5acls,j 1 a sum of niulivided piMfitd iHayhedistrilmtedamon-tkl bonus, it shall he Wnlfortk he same, or any part thereof lal m capital of the company, tlicl similar amount. The iwv.«| n the shareholders in respect 1 .ndtotheamom.tofthemFij ic. 131, §§9 and 21, and 40 S «j c. '26, «5 3. 4 Xo such special rosuliitioii as aforesaid shall take elfect until a Ari'KNDix V. ,«„;andmn, showin« the ].articulars re.,uiml hy law in the case of ^ jio rc..\.ti.n U> rjliictinn of capital hy order ot the (onrt, sjiall have heen jirodiiceil !<> tukc effect till j„,l rc;!istcivd hy the Hej,dstrar of .Joint Stock (,'ompanies. imrtieulars li,i\o .1. rpiiu any reduction of paid-np cai)ital made in imrsnance of this ''ccn rcglstorcd. ai-i, it shall he lawful for any shareholder, or fur any one or more of Powcr to any wral jiiint sliareliolders, within one month after the passiiij,' of the sliarcliolder -•fcial ri'""'"''"" ''"' '*'"^'^' I'tiili"-'''"") t'> reipiiie the comimny to retain, "'"''" """ ind the company shall retain accordiu-ly. Die wliol.. ,,f t'lie moneys "'^"[nVon'esn. aitiwily paid oouu the shares held hy siidi iierson, either alone or jointly lutlim'to rri|iiiic till: unv (itiier jierson or jiersons, and wiiich, in consi>(pu'nce of such roiiiininy te ,,,iii,iii.ii, wiiiild otiierwise he returned to him or tliem, and thereupon'''*"'""'""''-^" till.' sliaies ill respect of which the said moneys sliall he so retained sliail, |i'i|,',',.J^'')"pi,i j^y iiircpmlto the payment of dividends thereon, he deemed to he jiaid up sach iicrson. |,i tile same exte!>t only us the shares on which ])ayment as aforesaid has Kill accepted hy tho shareholders in reduction of their paid-up capital, ffl'i the coiiipany shall invest and keep invested the moneys so retained in jiidisiciirities autliorised for investment Ijy trustees as the company shall i.tiriiiiiie, and ujion the money so invested, or u])oii so much thereof as fniiii time to time exceeds the amount of calls suhsequently made ujion i!ir >haies ill respect of which such moneys shall have heen retained, the uiiipaiiy shall pay such interest a.s sliall l)e received hy them from time 1.1 linuMiii such securities, and tlie amount so retained and invested shall 1' liild to represent the future calls which may lie made to re]ilace the ui'ltal so reduced on those shares, ■whether the amount ohtaiiied on sale iltlir whole or such ]iroportion thereof as vejiresents the amount of any idhvlien made, produces more or les.s than the amount of such call. i;. Fiiiiu and after such reduction of capital the company shall sjiecify Compnny (n in llii' animal lists of menihers, to he made hy them in pursuance of the '^I'Cf'f.v •■'""^"'nts Wiiiiy-sixth section of the Companies act, 1862, the amounts which any ,','? 1"'*'" i.dlii- -harcliolders of the company shall have required the comjiany to p(;„„|rrii 'ti,p,„ Kiiiii, and tile comjiany shall have retained accordingly, in pursuaii^o of toret;iin mulci lilt tii'tli section of this act, and the company shall also specify in the ^- •''_! a's" to attiiMits of account laid hefore any general meeting of the company the ^I'eiity amounts aiiiomif of the undivided jirofits of the company which shall have heen returned to Miirmd to tlie shareholders in reduction of the paid-up capital of the sliareliolders. I (ompany under this act. -■'> * 26 Vict. L— (I,) Where the Registrar of .Joint Stock Companies has reasonahle '^' I tm to believe that a company, whether registered hefore or after the I'o«cr of regis- [toinj,' of this act, is not carrying on husiness or in operation, he shall j^^^lJ^^^^^^jJi^j^^j ^»\ to tlie company hy post a letter inquiring whether the company is comiianie.s ctf lamiiijjon bushiess or in o])e;ation. register. (■2.) If the registrar does not within one month of sending the letter I Mtive any answer tluicto, h.> shall within fourteen d.ays after the expira- I ton of tlie month send to the company hy post a registered letter referring iulif first letter, and stating t'lat uo answer thereto has heen received hy ' i^gistrar, ami that il' an arswer is not received to the second letter hiiliin (Hie month from the date thereof, a notice will he puhlished in I lae Gazttte with a view to striking the name of tlie company off the litjiiter. '•! If the registrar either recei\ es an answer from the comjiany to the jtKtthat it is not carrying on husiness or in operation, or does not with- in ommrmth after sending the second letter receive any answer thereto, 1081 XlIE COMPANIKS ACT, 1880. Appendix V. tlic regi,slrar iiiny puljlish in tlie Cla/ettc niul hcikI to iic ivimpam a noti, that at the expiratiim of tlircc inontlis from tliu dulu nl' tliiit imii,,, (i imine of the coiuimiiy niuiitionud therein will, nnlcss ciiusf j-t Aunxn tni contrary, i)e .struck olf the rcj^ister and the company will Iju (IIsshIvimI (4.) At the expiration of the time mentioned in the notice the rr-i-tM may, unless cause to the contrary is previously shown \<\- sucli comrMnv strike tlie name of sudi company olf the re<,'ister, and .-hall imlili
  • l(r in ]iiirsnaiiir i.f il;i section, the comi)any or mendier may apply to the siipcrinv ((mit in wiiir| the company is liahle to he wound up ; and such court, if satistieil tint the company was at the time of the striking off ('arryini,' on liiisinessnriii operation (A) and that it is just so to do, nuiy order the naiiiu df tln' am- pany to he restored to the register, and thereupon tlir coniiMiiv sliall deemed to have continued in existence as if the nmiie tlicvuut iiail luwi liecn struck of!'; and the Court may hy the order give such dircctiuns and make such provisions as seem just for placing the loiiipaiiy and all'Hui persons in the same position as nearly as may he as if the name nf company had never been struck oft". (().) A letter or notice authoi'ised or recpiired for the piujiosos of iliis section to he sent to a company may he sent hy jiost nddiesseil to tin company at its registered otllce, or, if no office has licen regi>ttitil addressed to the care of some director or officer of the company, or il there he no director ofofticer of the company whose name and nddres." iir« known to the registrar, the letter or notice (in identical fona) nmy I* sent to each of the jjcrsons who suhscrilied the niiiiuiranduni of a«soii;i. tion, addressed to him at the address mentioned in tiial nicniorandiini. (7.) In the execution of his duties under this section the re^'istrar jjiall conform to any regulations which may he from time to time made by tlie Board of Trade. (8.) In this section the Gazette means, as respects companies who-e registered office is in England, the "London Gazette;" as respi'tts oiii- panics whose registered office is in Scotland, the " Edinhingli Gazitti;" and .as respects companies whose registered office is in Ireland, tlie " Duhlin Gazette." . i m (A') A company wliich is carrying on words, business merely for the purpose of a 479. voluntary winding up is within these Outlai/ Ads. Soc, 34 Cli. D. 1880. TIIK (JOMI'ANIES ACT, IHHS. 1035 Bcnd 1" .lie foinjiaiiy a notice 1 till! (lllle f)t' tlmt lidtiri; t!ic 1, niili'ss raiiso U A\m\n t" tlic ouiimny will ln' ilissdlviil. iiumI in the iiotiie llic n';^i-lr:iv )Usly hIiowii liv such conipiiiiy, :;ister, and Hliall imlilish nutice U ill till' (lazctlc iif MU'll l;i-t- ic is fo ^tvui'k nil' i-hall \« ili- v) (if uvi'iy (livi'ctor, iiumii^MH;; joiilinuc iiiul iiiiiy lu' cnfnrc' fi'ds ii^};vifViil liy llic iiniiK- f| rc>'i>U'r ill imrsiuiinv nf iliii r to the suinjriov court in \\h:\\ lul fiu'li I'lnirt, if satistifd tliat , 1" i)(r cavi'viuu till liusiiu'>s ori nay onlcv tlu' iiiiuit,' of tln' .dih- u'lvuiKiu tlir Kimimiiy sliall 1* if the name tlifveof liiul never I le order give sucli lUivotion^ ami aciiig the (■(nuiiaiiy ami all ' tin 8 may he as if the name d :!ic eiiuired for the im^om of tliis c sent hy i^st aiUlresseil to tlw no office has heeu rcgi-leitil, or otticer of the conipmy, it i(| )uiiy whose name awl aililioj^ ms otice (ill identical fovni) may l^ej lud the meuioiaiuluni of a>soii;i- itioiied in that luemoramlum. ler this section the vc-istrar sliali from time to time madebytliej L as respects companies wliosel Idon Gazette;" as respects com-l ami, the"EdinlmrgUOa/.ette;l stored oliice is in Ireland, tl.e| Appendix V. THE COMPANIES ACT, 188;}. 46 & 47 Vict. Cap. 28 (l). All (ft to nmrml thu Companic.t ads, 1802 and 1807. [20^/( Aiiijiisl, 1883.] feit enacted hy the Queen's most exeelleiit Majesty, hy and with tl ,«lvK'e I ilii- jav.' ami consent of the Lords s]iiritual and teiii])oiiil, and CoiiiiiK 10 ins, 111 lit I'ar'.ianieiit assemlded, and by the authority of the same. This act may lie cited for all iiurimses as the Cdniiiaiiies act, 188,1. Slmit title. Tliisftct shall, so far as is consistent with the !erms tliereof, lie Constructio i-tnu'ii as one with the Companies act.s, 18(>2 and 1867. of net. eptemlier, one Cumiiieiiocinciit of act. jirofercntiiil claims. ('-.; 3. Tliis ait shall come into loree on the first day of Sei 1 ■iiKiiiil ci-lit hnndivd and ei',dity-three. 4. In the distiilmtion of the assets of any coniiiany lieing wound uiMVagcs ami I jiiiktlie t'oiniianies acts, 18G2 and 1807, there shall he paid in piriority salary to lio I i.iother ilclits, — All wa;4es or salary of any elerk or servant in respect of service ' ivmleied to the company durinj^ four months liefoic the coiii- ineiicemcnt of thewindin},' up not exceedinj,' fifty pounds ; and All \va<,'es of any lahonrer or workman in respect of services reiuli'ied to the comiiany duriny two months before the coin- luencciiicnt of the windinfj; np. .1. The foiv:.,'iiiii^' delits shall rank eiiually among thomscdves, and shall Such claims to I kjiaiil in full, unless the assets of the company are insullicient to meet rank equally. ildii, iu wliifh case they shall abate in equal proportions between them- I iflVf-. i Saliject to the retention of such sums as may be necessary for the Linnidntor to I (*1.< of administration or otherwise, the lifiuidator or liquidators or official Hi;itms many companies registered under the Companies act, 1862, Ion- on Imsuiess in British colonies, and dealings in their shares are I^Htiit in such colonies, but delay, inconvenience, and expense arc I') This act is rcppaleil except as to Bankruptcy , act, 1888, 51 & 52 Vict. c. itiffllbytlie Preferential Payments in 26, see ante, p. 717. r^m 'i'firf^ 103H THE COMl'ANJKS ((OF.ONlAI, lii;isliiit witli tl tenor thereof, lie construed as one with the Companies nets, inn^ to |SH{ nnd the saiil acts and this act may he referred to as tin. ( '()m|iiiiii,.< m.), 18()2 to 188a. 2. In tliis act the term "coniiinny " means a conipany reiii^tcri-il nndi the Compaides act, 18(12, and having,' a caiiital divided iiitn sliari'S ; ili term "shares" imdudcs stock ; the term " c(dony " docs nut iiKlinlian pliici! within the I'nited Kini,'ilom, the Isle of Man, or tlic I'liaimt Islands, lait in( IniU's such territories as may for the tinu' ImIii^' lie viMn in lier Majesty hy virtm? of an act of Parliament for the ^;(ivirnimni » India, and any jdantation, territory, or settlement situate cIscwIumv Hiiiii: lier Majesty's dominions. .'}. (I.) Any company whose olijects ei^mjirise the tinusaclinii nf l,ii,i ness in a colony may, if authorised so to do hy its vei,'uliitiiiiis, nsiiri};iiiii]li framed or as altereil hy special ri'solution, cause to he kejit in any kI.h; in which it transacts Vmsiness ii hranch register or if^isters nf iimiiKi resident in such colony. (2.) Tlie company shall j,'ive to the re},'istrar of jdint .-Imk ((imiinnic notice of the situation of the oflice where any sucli liramli ivni>tir ii this act called a colonial registei) is kejit, and of any clian.i,'i' tliiTi'ln, .iib of the discontinuance of any such ollice in the event of tlie siiiic liiii discontinued. (3.) A c(donial register shall, as regards the jiaiticulars iiitercil tlnioin he deemed tlicate or iliiplicatts ul colonial register or registers. The provisions of section tliirty-tHo of ti Companies act, 1862, shall apply to every such du])licate, and evoiy-'i duplicate shall, for all the purposes of tlie Companies .acts, 1802 to he deemed to he part of the register of members of the company, ■« is'i'iuis) ACT, 1hh;i ly li'j;i»l pnivision fur kwpin; ri\t that Midi iiiwi^nns as this iioft cxccUciit Muji'ty, k anil Is s]iii'ituiil iiml tcniiinral, i\n'l ulili'd, mill liy till' imtlinviiy I ( L's us till' t'liiiiiiiiiiii's 'Ciildiiiil II t'liv as is niii>istL'iit with \\v> Cdinimiiifs iicis, IHOitolX'*'!, j vrt'il t" its till' <'(imiiiinii''iiii>, I lUis ii ciiiiiiaiiy iv;,'i-tiiwl uinVr •iiliitiil (liviilfil iiitn slmrcs; tlr " I'olollV ' il'H'** II"' iinlmli' illiV ! . Isle of Mail, (iv the I'lialili.li luiiy fi'V till' tiiiu; lH•ill^!l»•^v.l^lj ivliaiiii'iit i'nr till' ^;nvHiiiiuiii 4\ llli'inciit >iliiatf clscwlu-iv wiiliiii] ,,iiii)nsi' the traiisidimi of In-i- ill by its vi'nuliiti()iis,asiirii!iiiiilly| 1, I'li'usc to lie Vii'l't ill any 'iil"iiy| rugistiT 111 iv^i>ti'V^ <'f luvinl'iul roi^istrnr "f ,i"iiit slui'k iHi;ii«iiiirj| here niiv sueli Viraiidi ri'gi.y «1'"".^<' 'I'"'''"' "'"^1 ' in tin- event of the suik' 1'H ,1s the iiavtieiihii'seiitemltlimin,! Imiiv's iv^istev of ineiiil«vs, aiij lavticvilavs euteiv.l tlieiein. Ai;y| ,i-im)Vi«h'.niythe(.'..iiiiiaim-;i>;J Ihat the a.Ivertiseliielit liiflilwwj s aet, I8fi2, shall he iimtul inf ;t wherein the ivKisler to I'l-l' the colony where suili n-i-trt i „„. jaiisilietion of ivdifyiii: ilij (_V,niraiiies art, l^(l••, v.^.U' »,.! ill her Majesty's suiiennr .-Ml |aerseetionthiity-tw.M.tllie("io^ colonial re^ii^te-v, 1h> l'f":«fi ,lony where sueh rej;i>tcr i> l>f Itsiemstcredolficeaeoiivptovoi Ivs as soon as inny he alt.v « j luse to he kept at .1^ ^^P^^ L, a anrl''-'''l« '"' ''"I''"' J lions of section lliirty-t«-ocitlj Irv such .Uil>licate,aii.l even- -vj liembers of the company. 49 VICT. cAi'. 23. 1087 Ih.) Siilijecl to the provisioiis of tills aet with n'^pcet to the diipliealc Appkniux V. n ri,UT, the shiuvH rt'Kittercil in a cohmiul n't,'i.ster shall he ili>tin^,'iiislic(l (ru'iitlu! sliaies rej,'istore(l in the iniiieipul iv^'istcT, ami nii transaction t to any shares rej,'istereil in a colonial iv;,'i>trr shall, iliirin.:,' the •Iiei' ,,iiiiiiiuiince o: IVil-l'-lV f the reL'istratioa of siicli shaius iu micli colonial iv'-ister, In (i. 1 ill any other register. The company may lUscoiitiniie to kei'i> any colonial iegi.--ter, ami |l|vivlll»ill li ill entries in that register shall be transfcrreil to son: )tlier emitter kept by tiie coiiipuny in the suiiie colony, or to the ri'gistcr iiiiiliois kept at the rugislereil olUce of the company. \\ Ik relution to stiunp duties the following provisions shall have x\ ;— {.I.) All iiistruiiien t of transfer of a share registered iu a coloiiiii iv^'ister under this lut shall be deemed to bu a translVr of piopeity situated out (if the United Kingdom, and unless executed in any part of the United Kingdom shall be e.\eiiipt from British stamp duty. ('/.) I' poll the death of a member registered in u colonial register Minhr this act, the share or other interest of the deceased iiiiMiilier shall for the jnirposes of this act so far us relates to British duties be deemed to be part of his estate and effects lituated in the United Ivingdom for or iu resjiect of which piciliate or letters of administration is or are to be granted, or wlifieof an inventory is to be; exhiliited and iccoided in like iiiaiiiur as if he were registered in the register of ineiiilieis kept at tlie registered ollice of the company. \ Siilijcct to the [U'ovisions of this act, any coiii]iany may, by its I rr^Mkiioiis a« originally framed, or as altered liy special resolution, make li«.liliiv)visioiis as it may think tit respecting tlie keeping of colonial I M-ti'P. THE C'OMl'AXIK.S ACT, 1886, 49 ^'l^T. Cai". 23. \.U A'l huimeitil the ('oiiipaniex Ads >. 43 Vict. c. 19. 40 & 47 Viet, c. 28. 33 k 34 Vict. ? 104. Kllbct of dilirjeuce witliin W diiys of wiiuliiij,' U|) hy or suliject to suijervisioii of court. 19 & 20 Vict, c. 7U. TIIL: CO.Ml'ANIUS ACT, ISHfi. the .said nct^j and thi.s act may be rcfuiTod to as tlic Cuiuiiaiiic'S 'ict i to 188G. ' " ' 3. Ill the winding ti]>, liy or .subject to tlie supiivisi,,ii i,l' )]„. (■ of any coniiiany under tlie (yonipanies acts, 1802 to 1S8(! wIuk. ■ tered uliieo is in Scotland, where the wiuding up ^hidl cummcMKc tlie i)as.sing of this act, the following provisions shall 'lave cllV-ct • (1.) Such winding up shall, in the case of i\ wiM(hnL,' up by Court as at the C(jniniencenient thereof, and in tlie ca*e i winding up subject to the supervision of llic ('mnt n< at date of llu! presentatiiHii| l)i; fiiuivah'Ul til an avrcsliiMtj ln'oiiiiii'^, uuy atU'V tliel Ufnci'n.i.'nt of ihii win.hii- m. l\j iliuu of ih.' v^'t''"'" "ii^^'ii'i'i hi! ease may In-, shall h« otl'irnuls le jirocei'ils of snch ctlVd-, il'-"VlJ tliu li'iuitlatov : I'vnvi.lcil tliat ;mjr u dale of such wiuilm;,' \\\\-'!iii ;,t lo poind the ;^v..und hnvuialiel L^. hundred and twelve t<- id tinsive, and al.. of ..u.^^ I'.aiilu'ui.tcy (^.cothuul) ad 1 ■ill, the tenor of the vccit.d A hovitahle estates aifectvA .y -.^ (i,s as aforesaid ; and f.'V tl,c r« ' u.e.iue.tvatiun"nnd tvu-« if the r>ankruptcy (Scotlau , ai LMi.luidation"and''hHUKlfv ford ordinary or the Court' 4 ll l)v this act. . ,vi,ich has »ot heen canM K, .ixtv davs hefore the re;.. Uheexrenthercin:cftcri..v*> ihtheUMuidator; I'rovuWtU f.,v"th beritahlo estate vrd.. ;^:ilheinvventedfrourc.. Rer the vespectrve dates ^^'i-> ,,,, of interest for one ycav ■'. nuul ..t such term. -19 vicf. CAP. '23. 1089 4 lu the windinj^ up of any company \mder tlu- Cumpan ffimli les iicts 188G, whose reglsleroil olliee is in Sei^Uand, ami where the up shall eoium ence after the pus- Ml' if 11 lis ai t, ll le j^eiinal and ^.l Al'I'KNliIX V. Raiikiiii' of JWV ill rej,'ard to voliiifj; and rankin,;,' for payment of dividends iikl by the Bankruptcy (Seotland) act, 185(5, sections f.nty-niiie to kcuI rules ,i\tv-six luc in liiR'c Insive, or any o ther rules in re^'ard thereto which may 1 inVutlana, jtis fur the time heing in the sei^uestratiou of the estati's of liankrupts 1 shall, so far as consistent v.ith the tenor of the said recited '.V tu creditors of such companies votiii" in niatleis relating to tlie iiiliii'' up, and ranking for payment of dividends ; and for this pnrposo wiiistration shall be taken to mean liiiuidalion, trustee to mean liipiidator, ,f,l i„ii iviiioMil), 0111' liuiKlriMl and iiiiicty-scveii, mic Imiiilio,! n niiifty-ci-lit, iir.'l two Imiidivd and one ; und hImi Mxii,,),, , liiiudi.'d and twcuty-tn-(i and one Imudiod mikI twi'iilv-thr.. till- ComiianiL'S act, l8rovisions of section one Innidred and twenty-uiic (if the' Coiiiiianiij ait, 1H()2, in reference to decrees for payment of calls in the wi conijianies, wliftlier voluntarily or l)y or sidijcct to (lie th<' Court. G. When the Court makes a winding u\) or a siiiicrvisidii nnK.]. „,. any time thereafter, it shall lie lawful for the Ciniit, in eitlu-r ilivi-j,, thereof, if it thinks tit, to direct all subsequent iirnoicdinj^'s in thr winili;, u]) to he taken liefon; one of the permanent lords nrdiuiuy, uiul to mm the winding,' up to him accordingly ; and thereupon such lunl oiilinaiy shall, for tile puiiioses of the winding up, he deemed to he "tlie ('imi" within the meaning of the recited acts and this act, ,iiul shall liav.-, 1 ,r thf juirposcs iif such winding up, all the jurisdiciidu ami iiowii- ,i|' i]ie Court of Session : Provided always, that all ordrvs m1' iiiilir|||,.|,|< ,,,,,. nounced hy suidi lord ordinary shall he suhject to iwiiw only hv n-ilaim- ing note in common form, presented (nntwitlistandiiig the teviiis ol s,.,.|j„]i onehundied anil twenty-i'nur of the ( 'nnnianies act, 180:?,) witiiiu fniiitiTii days from the date of such order or Judgment. Hut, slicmM :i ivilaimiiin note not be presented and moved during session, the provisions of ><:Am\ five of this act shall ajiply to such orders or juilgineiils : I'luviilcil al-o that the said hud ordinary may report In the division ul' the ( 'nurt aiiv matter which may arise in the course of the winding up. This .wliuu and the immediately preceding section shall come into force fmin tlie| jiassing of this act, and shall include companies then iu the coulee lAWiUi, wound up. I 1880. RULES OF 1862. 1041 ly-si'veii, mif !iiiiiilv(.'il m\ \ I iim' ; iiiiil !\1mi .-citinii- 1,1 iiuidiwl :inil twi-iily-iliivf i,f i > tlii'V may ati'uct the SL-ttiims j ilaim!(l sliall ill :my way Al-d \ •Wfiity-din' 111' tlic (Ajmiiaiiicj i lit (if calls in the wiiiiHii^^upi (Ul)jl.-Ct 111 till' SllpUVVi.-iuU .if] p i>v a supcvvisinn owV-t uv ,it! tliu Cuurt, in I'itlK'V divi.i.iu- LC'Ut jiiufci.'diuj^s ill till' wiiitli;. t lords uvdiiuivy, ami to ivmitJ theriniiiou such luvd (mliiuiyj Itu deemed to be "tlioCnm," ud tliis act, and shall liavf, y juvisdictiiiu and powcb ul' tlid t all Didevs or jiiilgiiu:ut< )*> iliject til review iiiily hy ivi'liiiiU'l itlistaiidiiii^ the terms uf sntioif lilies act, lH(i2,) within tuiirk nieiit. liut, shouhl a ivclaiiuiii| .sessiiiii, the iirovisions of scdio^ ;s (ir jnih^meiits : I'mviilcil alsol ,1 the' division of the (\imt aii )f the wiiidiiiij; up. This siitioi shall come into fuvce fmm thj [lanies then iu the course ulWin No. VT. ORDERS AND RULES (u)- ijESERU ^RBKR AND RULES OF THE HIGH COURT OP CHANCERY T' LATE TH'5 MODE OF PROCEEDING UNDER THE COMPANIES i-;2, ISSUED BY THE LORD HWH CHANCELLOR, TUESDAY, am DAY OF NOVEMBER," 1862. Tlie ri"lit honourable Richard, Baron Wcstbury, Lord High Chancellor Appekdix VI. 1 ({Great Britain, with the advice and consent of the right honourable Sir ' I idin Soniilly, JJ 4ei of the Rolls, the honourable the Vice-Chancellor, l&Eicharil Torin Kindersley, the honourable the Vice-Chaucellor, Sir Mn Stuart, and the honourable the Vice-Clnncellor, Sir William Page llool, doth hereby, in pursuance and execution of the powers given by lie statute ;'.""'i :nd 26th Victoria, chapter 8!t (/;), and of all other jxwers ai'i audi' ■nies enabling him iu that benalf, order and direct in |iHm':rfollo..';:j3 , — Petition to wind up companu (c). Every petition for the winding up of any comjiany by the Court, or litljtct to the supervision of the Court, shall be intituled ir. the matter of ric mipauie-s act, 1862," and of the conijiany to which &uch petition iBlhtlate, describing the company by its most usual styli or hru: ((/). i Every sucli petition shall be advertised seven clear days before the |kiii;, as follows ; — 1. In the case of a company whose registered office, or if there shall he no such oiiice, then whose principal, or last known principal place of business is or was situate within ten miles I'rom Lincoln's Inn Hall, once in the " Loudon Ga/ettc," and one; at least in two London daily nuiruing new.spapers. i,, la the case of any other company, once in the "London Gazette," and once at least in two local newspapers circulating in the distrirt where such registered office or jirincipal or last known priiiidpal place of business, as the case may be, of such compiany is or was situate. L Im advertisement .shall state the day on which the petition was pre- iii'i the name and address of the petitioner, and of his solicitor lil bmduu agent (if any) (c). I li) These rules apply to the wiiulina f wraiiauics in county courts, tli3 ?iiM:«'iii-suli,tituted for the cliiof Any Inuk may, however, liusub- Weltortheliuiikof England by the t*'«i tlie CM.ity court juJge. See pjCourt lUilw Lif 18S0, OrJ. XLII. (6) See § 170, now repciiled. (o) See the act, §§ 82 and 148, and liii'c, PI). ti.")4 et seq. (■/) See order of 18ti8, rule 1. (t) See oHle, p. 655, and the form of advertiaement, iiij'ra, iu Schedule 3, N.. 1. 1042 RULES OF 1862. AppKNnix VI. 3. Every such petition shall, unless presented hy tlic "iiipMliy, b served at the registered office, if any, of the conii)auy, lunl if n, office, then at the principal or last known 2)riucipal place of bupinesc the company, if any such can he found, upon any iiitnilitr ofticer servant of the conijiany there, or in case no such uieia)ji.-r,' ullioer ' o sevA-ant can he found there, then hy heing left at such registered ollici' principal jilacc of business, or hy heing served on such niemliur or mm hers of the company as the Court may direct ; and every petition f(.r th Avinding up of a company subject to the supervision of tlie Cumt *lii] also be served ujjon the Ii(iuidator (if any) ajipointed fur the imriiose o ■winding up the alfairs of the company (/). 4. Every petition for the winding up of any com2)aiiy liy the Court o subject to the supervision of the Court, .shall be verilird 1 iv an iiltiJavj referring thereto, iir tlie form or to the efl'ect set fortli in Form Xo, 2 ij the third Schedule hereto ; such ailidavit shall be made by the pi.titioin.i or by one (;f the petitioners, if more thair one, or in case the ueiiliuu i presented by the company, by some director, secretary, or other rniniii,;i officer thereof, and sliall lie sworn after and tiled witliin four ihivs utte the petitroir is presented, aiid such affidavit shall lie suliicieut prma fid evidence of the .statements in the petition (y). 5. Every cont'-ibutory o.' creditor of tlie company shall lie mnhl ti be furnished by the solicitor to the petitioner witii a copy of the lutiiinii within t' enty-four iiours after rerpiiring the same, on payiirg at tin- rat of fourjie -ce per folio of.seveiity-two words for such copy. Order to v:ind vp companijQi). 1 6. Every order for the winding up of i conipau;, by the ('::::* o subject to its supervisicn (/), shall, witliin twelve days ufi r the Jat thereof, be advertised by the petitioner once in the " Lo-.dou Gazette, and shall he served ui)on such persons (if any) and in su'li maimer as th Court may direct {j ). 7. A copy of every order for winding up a company, certitieil tu'- true cojiy theri^of as jwssed and entered, shall be left liy the pctitioiui a the chambers of the judge within ten days after the same shall liave l.ei passed and entered, and in default thereof any other person iiitcre^ti'l i the winding up may leave the sanu', and tlie judge may, if he think- fil give the carriage and ])rosecution of the order to such person. Upon m copy being left, a summons shall be taken out to proceed with the vui'uii up (if the cimipany, and be served ujion all partieawho may have appiiK upon the Iiearing of the petition. Upon the return of siieli smiim"!:-, tijne shall, if the judge thinks fit, be li.xed for the ap[ioiiitiiient 4 « oliicial liipiidaliir, and for the proof of delits, and for the list el .01 tributories to lie brought in, and directions may be f:\wn v h' t advert isonients to bo issued for all oi' any of such pui|ios's, .iiid gendil a.s to tlio proceedings and the parties to attend tlureou. 'Ihe pr.nwliii. under the order shall be eontinue. ij'm. (g) A lite, 11. 057. (h) See the act, §g 82, 85, SO, 147, and luiti, \i\i. (is4 aftK it shall l)e suUicieiit iirmi >ial he cinnpany shall he eiiutlul I ioner with a copy of the ix-'itioiJ ii the same, on paying at tlif latj ■ds for such copy. ■ompaniiih). of I compan: by the f'cv.r*. ^ Ihin twelve days aft r the da* once in the "Lo'.dou GazotteJ X any) and in sudi luainitr as ttf rip a company, certiliid I'.' I'O I '.hall be left by the pctitioiM J ivv. after the same shall hav.l^l U any other person nitcrc.kdf theiudgemay,ifhetl.mk-fi I, rder to such person. lpo"^i In out to proceed ^^•ith the .marf VaipaiticoNvhn may have avi*'« In the relurn of such suuua.^.4 lixedfor the appointm.utvlf debts, and for the hst . ^o, actions may be given a^ t" t-of suchpuipoe/s,audg.n^J Ittend th.reon. 'Hu- V^-'<':-\ l,liournn,ent,a,v.l,^vhenu«--J Ltion as afore. aid may l.uv.| !(,■) Pec the feuu .1' "^^' '' j(7)Sectbefom>e(advon.e..Pi| No. 5. s,idcJ to, or varied, at any subseriueut time, as may be foruid neces- sary (i). Official liquidator (l). 5, The judge may appoint a person to the ollice of official li(|uidator «i:liout previous advertisement, or notice to any party, or fix a tinre and ikefor tile appointment of an official liquidator, and may appoint or itiect any person nominated at such time ami place, and ai)2)oint any mm not so nominated. (i, Wl'en a time and ]ilace are fixed for the appointment of an official li,ii;iJator. such time and place shall be advertiseil in such manner as the iti -liidl direct, so that the first or only advertisement .*]m11 be pub- ;i..y within fourteen days and not less than seven days before the day so 10. Every otticial liquidator shall give security by entering into a re- tBii'auce with two or more sufficient sureties in such sunr as the judge mav approve ; and the judge may, if he shall thhik fit, accept the security [f aiiv "uarantee society established liy charter or act of Parliament in Enilaml, in lieu of tiie security of such sureties as aforesaid, or of any of I tkiii («). 11. Tlio oflleial liquidator shall be appointed by order (o), and unless I W tliall have given security, a tiine slnUl be fixed by such order within I m<\\ lie is to do so ; and the order shall fix the times or periods at itiiiii the ollieial liquidator is to leave his accounts of his receipts and imneiits at the judge's chamber.s (p), and shall direct that all mimeys to Ikuctived .shall be paid into the Bank of England, inmrediately after the Heipt thereof, to the account of the official liquidator of the company, Uilaiiaa' n.iit shall be opiened there accordingly; and an office copy of I'ieoi^ler shall lie lodged at the Bank of England (q). U. W'hcn an official liquidator has given security pursuant to the I anions in the order appiointing him, the .same shall be certified by the likl ck-rk, as in the case of a receiver appointed in a cause sulject to I dvirii; sieurity. 13. Tiie olficial li(pudator shall, on each occasion of jia.ssing his ac- lfiiiit(r)| and also whensoever the judge may so require, satisfy the judge lllsiliij sureties are living, and resident in Great Britain, anil have not llftDadjiulged bankrujit or become insolvent, and in iltd'ault thereof he J5jy be required to enter uito fresh security within suvh time as shall be ItiMteJ. U. Every appwintnipnt of an official liquidator shall be advertised in atli iiiamiirr as the judge shall direct, immediately after he has been Isi'lttutod, and has given security (.v). Api'Endix VI. |l) hk, pp, 6SG, GS7. 1'"^ Sec the act, §§ 85, 92, 93, 103, p^,tolcll^, pp. 701 el seq. Ill, .'« the fjrm of advertisement, p.Sdiedule 3, No. 6, and the fam }friV«ilfor the apiHiiutmeut of the N liquidator, ill. Xd. 7. [''''!'«elbe foiTu of recognisance aHd •fit of sureties, ib. Nos. 9 and 10. li' &8 the form of order, ib. Nos. 8 .ind 9. (;)) See riilo 19. {(j) See, furtlicr, as to accounts in the Bank of England, rules 30—44 ; and for the form of direction to open an account tiiere, see Seliedide 3, No. 14. (»•) See rule 19. («) See the fonu of advertisement in Schedule 3, No. 15. 3X2 1044 Al'PBNSIZ VI. RULES OF 1862. 15. Where it is desired to appoint provisionally an ofticial li(iuidatov ^0 an application for tliat purpose may, at any time after tlio pic.^uiitutinu of the petition for winding up the company, he made by suniiiions, witlioiit advertisement or notice to any person, unless the judge sliall otlitrwi-e direct ; and such provisional otHcial liriuidator may, if the jud.'e .-Imll think fit, be appointed without security. 16. In case of tlie death, removal or resignation of an official li(iiiiiIatov another shall be appointed in his room, in the same manner as dinuifd in the case of a first appointment, and the proceedings for tliat pin])osc' mav be taken by such party interested as may be authorised by the judi^e to take the same. 17. The official liquidator shall, with all convenient .^pecd after he is appointed, proceed to make ujd, continue, complete, and rectify tim Imoks of account of the company ; and sliall pro\'ide and kee]j siuli ])wh uf accoimt as shall be necessary, or as the judge may direct, fur the purpo.-M aforesaid, and for showing the debts and credits of tlie eompauy, iialiulin.' a ledger, which shall contain the separate accounts of the contriljutoric; and in which every contributory shall be debited from time to time with the amount payable by him in respect of any call to be made as piuviikil by the said act and these rules. ^ 18. The oiiicial liquidator sliall be allowed in his accounts, or otlienvi^e paid, such salary or remuneration as the judge may from time t(j time direct, including any necessary employment of assistants or clerks bv tlie olKcial liquidator, to which regard shall be had ; and such .salary or roiiiii- neratiou may either be fixed at the time of his appointment, or at aiiv time thereafter, a? the judge may think fit. Every allowance of siiiiij salary or remuneration, rudess made at the time of his appointraeiit, nrj upon passing an account, shall be made upon apjilication fur that imiiiose by the official liquidator, on notice to such persons (if any), and siiiipi rt'd by such evidence as the judge shall require ; nevertheless tlie iwV^r i: v from t'uu' to time allow any sum he may think fit to the olficial liijuiua' r, on account of the salary or remuneration to lie tliorcal'tci' allowed. 19. The accounts of the otHcial liquidator sliall b<' Kfl at the jui, s chambe\-s at the times directed by the order ap]ioiiiting him, and at - ;i other times as may fii.m time to tune be required In the judge, ami ;i accounts sliall, upon . (ice tu such jiarties (if any), as the judge -i. 11 direct, be passed uu4 vtrified in the same manner as receiver's accoiml Proof of debts (w). 20. For the purpose of ascertaining the debts and claims due from ;':ie company, and of ivquiring the creditors to come in and prove their Mi or rlaims, an advertisement shall be issued at such time as ili.' jud^e dial direct : iinyu>ay rule 59. (tt) See the act, §§ 1*" H'S, w\ « {If 713 ft »i:q. (x) Sec the form of a^Uer infra^ Sciiedf.t: 3, No. I'i. RULES OF 1862. 1045 Ml ofticial liiiuidatov(l) ;ter the presuiitiitiou of ; V)y suuiiiKiiis, witliout, judge sIihII olliurwise lay, if the judge .-liall of an official hquulatov, le maiuier as dirceitjd in gs for that \m\)<>^>' may jorised by the jivl^e lu venieiit speed after lie is te and rectify the Imuks and keep such \\ov]ii uf y direct, fur the purpose ,f the company, inchiding ,iits of the coulrilnuoiii:;, ^jj ;d from time to time wiili 11 to be made as providul ' his accounts, nv otlier\vi=e a may from time tu tinm assistants or clerks by ili^ . and such salary or remu- lis appointment, or at any Every aliowanw of sink ime of his appoiutmout, .r application for that purpose cms (if any), an'i suvpovt.d! nevertheless the jud;^. nKiy! fit to the otncial h-iuukitorJ thereafter allowed. _ I IvxU be left at the judge ij ^pointing him, and at sucj ..d bv the j«ag>^- '""^ * auy), as the judge .Iwi] ucv as receiver's accuunts. V\ hts and chums due from tb ,ue in and prove Uuud.bl .uch time as lb. judL^-' ■"»! ^0 for the creditors tu ^,, of tlieii debts or el. .a tors(if any>,l^.tli«"M thereon ( ' ). eetheact.§§10r»^S=*''''^ \et ifq- ^ . tte form of adv.. ( 3, No. 1<5. 21. The creditors need not attend upon the adjudication, nor jirove Appkndix VI. their debts or claims, unless they are required to do so by notice from the official liquidator ; but upon such notice being given, they are to come in imllirove their debts or claims within a time to be therein specified. 22. Tlio ollicial liquidator shall investigate the debts and chiims sent in toliiin, and ascertain, as far as he is able, which of such delits and chaims iK justly due from tlie company ; and he shall make out and leave at the climibers of the judge, a list of all tlie debts aiid claims sent in to him, lii-tiiiguishing wliicli of the debts and claims, or parts of debts and claims are so claimed, are, in bis opinion, justly diu' and jiroper to be allowed fliilioiit further evidence, and which of tliem, in his opiiiiim, ought to be proved by the creditors ; and he shall make and tile, prior to the time appointed for adjudication, an alfidavit, setting forth which of the debts and ciiiins in his opinion arc jiistiy due and proper to be allowed without tolher evidence, and stating liis l)elief that such debts and claims arc jiiitly due and i)roper to be allowed, and the reasons for such belief f /). 23. At the time appoi..ted for adjudication upon the debts and claims, oral any adjournment thereof, the judge may either allow the debts and daims upon the atlidavit of the official liquidator, or may require the aiiie, or any of them, to be proved by the claimants, ami adjourn the dijudication thereon to a time to be then fi.xed ; and tlie ollicial liquidator ikll give notice to the creditors whose debts or claims have been so allowed, of such allowance (a). 24. The ollicial liquidator shall give notice to the creditors whose debts or claims have not been allowed upon his ailidavit, that they are required to cuiue in and prove the same by a day to be therein named, being not ksstlian four days after such notice, and to attend at a time to be therein nainod, being the time ajjpointi'd by the advertisement, or by adjournment (as tile case may be), for adjudication upon such debts and claims (a). 25. The value of such debts and claims as are made admissible to proof lytlie 158th section of the said act, shall, so far as is possible, be esti- mated according to the value thereof at the date of the order to wind up tile company. 2G. Interest on such debts and claims as sliall be allowed shall be coiu- pnttJ, as to such (jf them as carry interest, after the rate they respectively carry ; any creditor whose debt or claim so allowed does not carry interest, stall be entitled to interest, after the rate of 4/. per centum per annum, from the date of the order to wind up the company, out of any assets I vliidi may remain after .satisfying the costs of the winding up, the debts ©K'laims established, and the interest of such debts and claims as bylaw I cairy interest (/)). 7. Sill li creditors as come in and prove their debts or claims pursuant tc nutice IVom the oliicial liquidator, shall be allowed their costs of proof iatliesaiiu) manner as in the case of del)ts proved in a cause. iB. The resuU of the adjudication upon debts and claims .shall be stated I in a certificate to be made by the chief clerk, and certific les as to any of iHclidebts and cluiins may be made from time to time. All such certifi- ;/; ^f tlie form of affidavit, ib. Nos. "and Is. : See the form of notioc, ih. No. 10 ; jiiittieforiii nf notice to attend .and lie l^i A. No. 23. ((() See tlic form of notice, ih. No. 20 and the form of atlidavit to be made by creditor wlio Ki-; rereived such notico, No. 2! (6) !>te «*••, p. 724. 1046 RULES OP 1862. Appendix VI. catea shnll state whether tlie ili^lits <>v claims are allowed or (lisallowod and whether allowed as iij,'aii)st any jiartieular assets, or in any otlitr qualified or special manner (c). List of contrihxdories (d). 29. The official liquidator shall, with all convenient speed after liis appointment, or at sucli time as the judge .shall direct, make out ami leuve at the chambers of the judge a list of the contributories of the company; and such list shall be verified by the alhdavit of the official li(iuidati.r, and shall, so far as is practicable, .state the respective addresses (jf, ami the number of .shares or extent of [interest to l)e attributed to each such con- triljutory, and distinguish the several classes of contributories. And such list may from time to time, by leave of the judge, be varied or addud to, by the oiiicial li(piidator (e). 30. Upon the list of contributories being left at the chamljen) of tlie I judge, the official liquidator shall obtain an appointment for the jmlyc to' settle the same, and shall give notice in writing of sucli ajipointnunt to every per.son included in such list, and stating in what clianutcr, ami fur what nundjer of shares or interest such person is included in tlie list ; and] in case any variation or addition to such list shall at any time be mailo hyj the official liquidator, a similar notice in Avriting shall be given to ivuryj person to whom such variation or addition ajiplies. All sucli udticis diallj be served four clear days before the day appointed to settle such list, or] .such variation or addition (/). 31. The result of the settlement of the li.st of contrilmtorios shall lie! .stated in a certificate by the chief clerk ; and certificates may be made I from time to time for the purpose of stating the result of such scttknicnt| down to any particular time, or as to any particular person, or stating any] variation of the list (y). Sales of property {h). 32. Any real or personal projjcrty belonging to the company may be* sold, with the approbation of the judge, in the same manner as in tlic caroper that the purchase-moneys shall be ^ ,;i,l to him, all conditions .iiid eontraets of sale; shall provide that the 1 uxliase-nioneys shall be paid by the resjiective piircliasors into the Bauk ([England, to the account of the ollicial lit^uidator of the company. Calh{i). 3;!. Every application to the judge to make any call on tlie contribu- :,K', or any of them, for any piuiiose authorised by the said act, shall be jiaJo by sumnion.s, .stating tlie proposed amount of .such call; and .such .millions shall be served four clear d y.s at the least before the day ijipoiuted for making the call on nyary contributory proposed to be in- iSkd in such call ; or, if the judge shall so direct, notice of such intended J may he given by advertisement (/.•). 34, When .any order for a call has been made, a copy thereof shall be :;t]iwitli starved upon each of the coutributories inchided in such call, vitlid' with a notice from the ollicial liquidator s])ecifying the amount :!l,il:iiice due from such contributory (having regard to the provisions of ;':,c?,ml act) in resi)ect of such call ; but such order need not be advertised ate, for any special reason, the judge shall so direct (/). 35. At the tune of making an order tor a call, the further proceedings Irdaliiig thereto shall be adjourned to a time suljsequent to the day ap- I vMd fur the payment thereof, and afterwards from time to time so long i may he necessary; and at the time apjiointed liy any such adjourn- Isnt, or upon a summons to enforce payment of the call, duly served, and 1 5*11 proof of the service of the order and notice of the amount due, and Lvn.payment, an order (wi) may be made for such of the coutributories who hvemade default, or of such of them against whom it .shall be thought hrtiiw to make such order, to pay the sum which by such former order 1 :j1 notice they were respectively re(|uired to pay, or any less sum wliich I Liy appear to be due from them respectively. Pai/ment in nf moneys and deposit of securities (n). 3(). If any ollicial liipiidator .shall not pay all the moneys received by |:aiiito the Bank of England (o), to the account of the olhcial li(paidator ; the- company, witliin seven days ue.xt after the receipt thereof, luiless tt judge shall have otherwise directed, such otticial liquidator shall be jiffp'td in his account with ten .shillings for every lOOl., and a jiropor- Ifemte sum for any larger amount, retained in his hands beyond such |;«i(i(l, for every seven days during which tne same sh.all have been so ^^.iinwl, and the judge nuiy, for any such retention, disallow the .salary or hmnrntiun of such ollicial liquidator. ^ee the ;ict, «;§ 102 and 120, luul of tlio atlidavit on vhlch to oht-iin it, (6. I"!-:!!'. S4t) rt sff/. Xos. 38 and 30; and sec the form nf ' See the forms of the summons, the iithdavit of .service of this order, ih. No. Icteit in support of it, and the ;ulvcr- 42. |»fflent, infra, Hchedule .3, Nos. 33 — {n) See the act, l;^ 103, 104, and ante, p. 704. See the forms of the order ;iiid tiio (o) See form of direction to open uc- |fi«. i'j. Nos. 3ri-37. count, infvu, Schedulo 3, No. 14. ■' ^ the forms of this order und 'Ir^ fi'tfif ■w 1048 Rui,Es 01' 18G2. AprKRDix VI. 37. All bills, notes, and other securities payiible to the companv or t. the olTicial liquiilator thereof plinll, as soon as theysliall come Id tluHiniifl* of such officinl liquidator, he deposited l)y him in the Bank (jf Eni'liiml f,,f the purpose of beinj; presented hy the hank for accei)tance and payuiuiit or for payment oidy, as the case may be. 38. All orders for payment of calls, lialanees, or other moneys due from any eontriliutory or other person, .shall direct the seme to he jiaiil intg lbs liank of England, to the account of the ollicial liquidator of tin; cuiiimiiv unless, on account of the .smallness of the amount or other cause, it Ay.']], having regard to the amount of the security given by the oflicial lii|uiH y r be thought projuT to direct payment thereof to the olliciid Iii|uiil;ii.,r. Provided that where any sucli order has been made directing; iwyiinnt i of a specific sum into tlie Bank of England, in case it kIuiII le tlimi"ht proper for the purpose of enabling tlie uflicial liciuidator to issue oxecutijii i or take other proceedings to enforce the payment thereof, or fur any ullicr reason, an order may, either before service of such former onlcr, or utter I the time thereby fi.xed for iiayment, be made, without notice, fur laynitntj of the same sum to the otiicial li(iuidator. 39. At the time of the service of any order for payment into tliu B.mlcl of England, the otiicial liquidator shall give to the party served a iiutice, to the purjiort or effect .«et forth in form No. 40 in the tliiril hIiuIuIsJ hereto, for the ])urpose of informing him how the payment is to lif lua.li;; and before the time fixed for such payment the official licpudator sluUl furnish the cashier of the Bank of England with a certificate, tu tlie pur port or effect set forth in form No. 41 in the third schedule hereto, tol signed by such cashier, and delivered to the party paying in tlie iiior,ayl therein mentioned. 40. For the purpose of enforcing any order for payment of money iutol the l^ank of England an affidavit of the oflicial liquidator, to tlie puqiorf or effect set forth in form No. 43, in the third scliedule hen^tu, shall sufficient evidence of the non-payment thereof. 41. All moneys, bills, notes, and other securities paid and tleliverei into the Bank of England, shall be placed to the credit of the accuunt . . the official liquidator of the company ; and orders for any such paymeD| and delivery shall direct the same accordingly. Delivery out of securities, and payment out and investment of moneys {I'i 42. All bills, notes, and other securities delivered into tlie Bank England, shall be delivered out upon a request signed by the ollicial liq dator, and countersigned by the chief clerk of th.e judge ; and nunejl placed to the account of the official liquidator shall be paid out iiH cheques or orders, signed by the official liquidator, and couiitcisigneil the chief clerk of the judge. 43. All or any part of the money for the time being standing to ti credit of the account of the official liquidator at the Bank of Enudaiid, not immediately required for the iiui-poses of the winding u]i, may invested in the purchase of Bank 3^ per cent. Annuities, Reduced 'il cent. Annuities, New 3/. per cent. Annuities, or New 21. lOs. per m Annuities, in the name of the official liquidator, or in the purciiase exchequer bills. All such investments shall be made by tl:e Bank ( p) See the act, §§ 103, 104. As to county courts, see the note ante, p. 1C«. RULES OF 1862. 1049 Eiip'land, upon a request signed hy the olficial licjuidator, aiiil counter- i'licil I'V tlic chief clerk of the judge, iiiul wliich reiniest .slmll he a aufli- (itnt autluirity for (h;hiting the account with the imrchase money ; and iiicli exciK'<[>ier hills, and in case of an exchange thereof any new ex- ilieiiuer bill:?, shall he retained hy or deiiosited with tlie Bank of England, atheimnio and on hehaUof the ollicial lii[uidator : and such annuities or eithttiucr Ijills shall not afterwards he sold or transferred or otherwise lealt with except upon a direction for that jjuqiose, signed hy the ollicial Eiiuiilator, and coiuitersigued hy the chief clerk of the judge, or uiuler an •,tilcrto lie made hy the judge (q). 44. All dividends and interest to acciue due upon any such annuities, iill from time to time he received hy the IJank of England, under a power f! attorney to be executed hy the ollicial liquidator, and placed to the irtJit of the account of sucli ollicial lirpiidator ; and such of the excheriuer lill* as shall from tinae to time he in course of payment, shall he delivered I k the Bank of England to one of their cashiers, who is to receive the istire>t dill' thereon, and exchange the same for new hills, incase such new IJlL- are issued, or otherwise to receive the principal and interest due on I iBcli of the said bills, so in course of i)ayment, as cannot he exchanged, ml pay the said interest, or principal and interest, as the case may he, 1 i]to the Bank of England to the credit of the account of the ollicial [tor of the company. Appesmx VI. Ideliveied into the Bank Lt signed by the ollicial ^ 1 of tl-.e judge ; ami inniel Lr shall be paid out «Vj dator, and couutciMgw.! ietime being staixHng ''' tj lattheBaukofEii^laml.;** J of the winding u]s u'^) It. Annuities, IlcHUwa.il. ' Is, or New 2!. lO*'. F " lidator, or in a>o inm H LI be made by t'.ie Bank | vts, see the note unit, p. Meetings of creditors or contributorics (r). 45. When the judge shall direct a meeting of the creditors or contri- llitories of the company to be summoned under the 91st or 149th section I tithe said act, the official liquidator shall give notice in writing, seven li'iKinlay.? before the day appointed for such meeting, to every creditor or Itontributory, (jf the time and place a^jpointed for such meeting, and of the Imtter upon which the judge desires to ascertain the wi.shes of the creditors I tr contributorics ; or, if the judge shall so direct, such notice shall be given I Ij advertisement, in which case the object of the meeting need not be litateJ, and it shall not be necessary to insert such advertisement in the •London Gazette " (s). 46. The votes of the creditors or contributories of the company at any Iwting summoned by the direction of the judge, may be given either ■Ittsonally or by proxy ; but no creditor shall appoint a proxy who is not lureditor of the company whose debt or claim has been allowed, and Ik contributory shall appoint a proxy who is not a contributory of the |ttfflpany (<). 4i. The direction of the judge for any meeting of creditors or contri- Iktories under the 91st or 149th section of the said act, and the appoint- liat of a person to act as chairman of any such meeting, shall be testified iy a memorandum signed by the chief clerk of the judge («). I See the form of request to inve.st, n Schedule 3, No. 54. K See the act, §§ 91 and 149, ante, 8", 683. W ?ee the form of notice or adver- went, infra, Schedule 3, No. 4.'i. ) Seo the form of appointment of proxy, ib. No. 46. As to the stamp, sec ante, p. 310. (u) See the form of this memorandum, Schedule 3, No. 47 ; and for the form of the chairiiian' s report of the result of the meeting, see ib. No. 48. n5.-*''^*> IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I M 2.2 12.0 i.8 1.25 1.4 1.6 . ^ 6" ► Photographic Sciences Corporation V S ^ c\ « 4^ \ :♦" "%'■ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 Ci^ C/j :♦"' 1050 Al'PEKDIX VI. RULES OF 1862. Direction or sanction of the judge (z), 48. The sanction of the jmlge to the drawing, accepting, making indorsing of any bill of exchange or promissory note hy any ollicial i dator, shall he testified hy a menioranduiu on such bill of exchanj promissory note, signed Ity the chief clerk of the judge (y). 49. Every application for the sanction of the judge to a compn with any contributory or other pei-son indebted to the company, sba supported by the affidavit of the official liquidator that he has investij the a^airs of such contributory or person, and stating his Ijelief the proposed compromise will be beneficial to the company, anc reasons lor such belief ; and the sanction of the judge thereto t-hi testified by a memorandum signed by the chief clerk of the jud^'e, or agreement of compromise, unless any party shall desire to ajjpeal froii decision of the judge, in which case an order shall be drawn up for purpose («). 50. The direction or sanction of the judge for any other proceediii act to be taken or done by the official li(|uidator, shall be obtainal \ amnions, and an order shall be drawn up thereon, unless the jiiJjje i f *:herwise direct («). If Iff Ajyplications to the court or judge under §§ 137, 138, 141, 167, and 1 of the act. 51. Every application under the 137th, 138th, or 141st seL-tiouof said act shall be made by petition or motion, or, if the judge shall so dii by summons at chambers : and c-.ery application under the 167tli or If section of the said act shall be m.ule by petition (6). Orders, 52. All orders made in chambers shall be dra^\^l up in chaiubei's, ui specially directed to be drawn up by the registrar, and shall \m ent in the same manner, tuul in the same office, as other orders iiini chambers (c). Advertisements, 53. When an advertisement is required for any purpose, except ' otherwise directed by these rules, the advertisement shall be insertiJ in the " London Gazette," and in such other newspaper or ne\vs]';i and for such number of times as may be directed. The judge may, in cases as he shall think fit, dispense with any advertisement reqiiin these rules (d). (.r) Soo the act, §§ 95, 159, 160, and infra, rule 71. (y) See the form of meinorandum, infra, Schedule 3, No. 49. (z) See the forms of an agreement to compromise ; and of the memorandum sanctioning it, ib. Nos. 50 and 51. (a) See the foiin of order, ib. No. 62. (6) § 137 relates to appeals against arrangements with creditors ; lates to applications by lii|iii(l!itoi> Toluntary winding up : § 141 relai the appointment of liquidatoK ToIuntary winding up : and §§ I'i 168 relate to the prosecution of quent directors, kc. (c) See infra, rule 74. {(f) See infra, rules 73 and H. RULES OF 1862. 1051 I judije (a;). iwing, accepting, making, mi ory note l)y any olUcial U^iui- on such liill of exchange or t the iuilge (l/)- )f the judge to a compromiM: bted to the company, shall b, idator that he has iuvestigatt.! 1 and stating his Ijclief tliat ial to the company, ami In^ of the judge thcret.) >^liall 1» chief clerk of the jud^e, on tin- shall desire to appeal from the ler shall he drawn up for tk ,lrre for any other proceeding .i aUdator. shall he obUune,luy.n thereon, unless the judge sbiJI 5 137,138, 141, 167, am! 168 h 138th, or Ulst section of tie ,m, or, if the judge shall Bote. diJationunderthel67thorl6Ma| )etition (&)• lhedrawnupinchaml.ei.,u- registrar, and shall U entei.il oihce, as other orders made '^1 iC ints. xdfor anypvupose,excevtjv4 vertisement shall he m.erkd'-Bj other newspaper or ncwspf^^M^ directed. The judge may, mj. J ,U any advertisement i-e(iuir.Jl!J •rangemente with creditors; S'^'t ,c/to appUcatious by Uyn,hto. « ■.lu„tary^-iuding«p-.§Ul;H ,e appointment of "c tiler] i,v (1,^. official lif£uidator, as far as may lie, in one continuous tile, and such tile! shall be kept by him, or otherwise, as tlie judge may from time to timel direct. Every contributory of the company, and every (leditor llitnofi whose debt or claim has been allowed, shall be eatitled, at all rfii-Dnalilel times to inspect such file free of charge, and, at his own txpin-e, tol take copies or extracts from any of the documents comprised tlunin orl to be furnished with such copies or extracts at a rate nut cxufdiurf three-halfpence per folio of seventy-two words ; and such tile sliai! jiroduced in court, or before the judge, and otherwise, as occasion maj| require (h). Provmcmal official liquidators. 69. All the above rules relating to official liquidators shall, so far as ih( same are applicable, and subject to the directions of the judge in each cas apjily to provisional oflicial li(iuidators (i). Attendance and appearance of parties (Z•^. 60. Every person, for the time being, on the list of Cdiilriljiitorieiif thi company, left at the chambers of the judge by the oflicial li(jiiiJator, am every peraon having a debt or claim against the comp.'iny, alluwcd li\- th judge, shall be at liberty, at his own expense, to attend tlic jirucccilinj before the judge, and shall be entitled, upon payment of the custs i«c sioned thereby, to have notice of all sucli proceedings as hohall by wiiite request desire to have notice of ; but if the judge shall be ol' (iiiiiiinn tlu the attendance of any such person upon any proceeding ha> (Hcasimieil an additional costs which ought not to be borne by the funds ct' the cMnpan] he may direct such costs, or a gross siun in lieu thereof, to lie jiaiJ by sui person : and such person shall not be entitled to attend any furtlier ] ceedings until lie has paid the same. 61. The judge may from time to time appoint any one or more dl ti contributories, or creditors, as he thinks fit, to represent liefore liim, the expense of the company, all or any class of the coiitiibutoiic: creditors, upon any question as to a compromise with any of the co( tributories or creditors, or in and about any other proceedings htfoj him relating to the winding up of the company, and may remove 1 person or persons so appointed. In case more than one person sh.nlll 80 appointed, they shall unite in employing the same .solicitor to ropre ttieni. 62. No contributory or creditor shall be entitled to attend any p#| ceedings at the chambers of the judge, unless and until he has entei-; Ijl j li book to be kept there for that purpose his name and address, an! tl|f^ name and address of his solicitor (if any), and upon any change < l address or of his solicitor, his new address, and the name and addniiJ his new solicitor (I). (A) ^'ee the act, ^ 156, and aute, p. 70<. (t) See ante, rule 15. (k) See the uot, §§ 74, 169, 160, and infra, rule 74, ante, p. 687. (0 See the form of this book, Sclci 3, No. 63, atUe, p. 687. RULES OF 1862. 1053 ;s, and all oilier ildiu- y, Bliall l)c lilftl liy thel luous tile, aii \h{ of the judge in esuhea*' arties (t\ list of contribvitories of th| t]w oflicial liciuidator, ai ! conipany, allowtd liy ill to attend the imiceuliii payment of the csls oic 2dingHashe>haUl>y\viitl< [Ige shall he of opinion llu oceeding has occasimieil an the funds of the conipanl . thereof, to Vie paid by su^ to attend any furlhtr pi lo oint any one or moTe ol lo represent before Inm.l ss of the contributfivii? mise with any of the co ly other proceeding? befd panv, and may lemove t^ re than one person shall | ,e same solicitor to repiesil entitled to attend any and until he has enterr. name and address, arol xnd upon any change M nd the name and addresi ale 74, ante, p. 687. ibooli,Sch(K Serviea of iummon$e», notices^ ttc. (m) 63. Services upon contributories and creditors shall be efTccted (except liien personal service is required) by sending the notice, or a copy of the lamons or order or other proceeding, through the post in a pre-paid tttcr, addressed to the solicitor of the party to be served (if any) or ieiwise to the party himself at the aihlress entered or last entered jjisuant to the preceding rule ; or if no such entry has been maile, then, if a contributory, to his last known address or place of abo, in tlie list of contributories, or in the summons, order, notice, or hieniocunient whereiii the name of such contributory !>r creditor is con- I lined, provided the judge is satisfied that such service is in other respects 1 Aient. Termination of winding up i^ ), 65. Upon the termination of the proceedings in chambers for the IrjiJing up of any company, a balance-sheet shall be brought in by the licial liquidator of liis receipts and payments, and verified by his I Ciiavit ; and the official liquidator shall pass his final account, and ItKalance (if any) due thereon shall decertified. And upon payment I •acli balance, in such manner as the Court or judge shall direct, the lnv^Tiisance entered into by the official liquidator and his sureties may be l^tcd. 66. When the official liquidator has passed his final account, and the r»knce (if any) certified to be due thereon has been paid in such manner |i'!liejiiJj,'e shall direct, a certificate shall b"; made by the chief clerk that lie alfairs of the company have been conq)letely wound up (o) ; and, in liw tlie company has not been abeady dis.solved, the ofiicial liquidator [iull, immediately after such certificate has be*- ,me binding, apply to the ],% for an order that the company be dissolved from the date of such |»ltr(j)). 5". When the proceedings for winding up any company have been com- |^^t«d, the file of proceedings and the book containing the official litpii- iKcr's account shall be deposited in the Record and Writ Clerk's office ( pp). Duties of solicitor of official liquidator (q). 5?. The solicitor of the official liquidator shall conduct all such pro- |*iui?? as are ordinarily conducted by solicitors of the Court ; and Appirdix VI. I the form of tbis 1 53, anU, p. ! See tlic act, §§ 62 and C3^ and |«a rale 74, ante, p. 687. ' See tlie act, §§111—113. ■'" See tlifl form of certificate, Sche- liitS.Xo. 55. ( p) See the form of order, ib. No. 56. (pp) Now the Central Office, see 12 & 43 Vict. c. 78. ('/) See the act, § 97, and infra. Schedule -3, Form No. 12. 1054 an.Es OF 1802. Ari'KKMX VI. wluii' tlif attiiiilaiii't' of liij* solicitor is n(niin'tl ou aiiy iiriHctiliii,. ~ court or tlwuiilnTs, tlie otliciiil liinii.lnlor hcimI iiol fittciid in iwrsun cx'i in cnsis wlitiv his jirowiicc in iicics.sary in mlilitiim In tliat ol' lijs ,.,,li,it or till- jud^u siliull diriit liii:i tn attcml. Form.*. C)[). Tlif foniis Kot forth or n/fonvil to in the tliinl i-. luijul,. t., li,, onhrf, witli >uch \ariatinns n.-^ tlu- ciriiini^lanrcs of larh cax m^iv iviinii may If u.>c(l fur llic i\)«j>vt ti\r iiurj'OMS nnnlinuid in r-mli .->< iudul,.. Tn. Solii-itoi's fshall In- cntith'd to clntr^,'*-, and In- allowcij, ij^. f^,^,^ , forth and rcfcnctl to in thv tii-st schrdiih' hi rcto, ludoss thi' Cnuit or in ,-hali otlnrwisi' .-jHiialiy din-ct. 71. The ffi's of ("oi'.rt set forth imd nhrnd to in tlu' sccoiul sclici hcnto shall he jpaiil in relation to jiroc((ilin^;s in the Cuiirt of (hani: iindiT till' ('oni]'anirs art, 1S(;2, and shall In- lolhrttd l>y imaii- stiunjis, in the manner Jlrc^( riheij hy the 3l*lh of the Cuiiwliilati iieneral Dnlen*. Tii.rttti ■ (if coits, 72. Where an oi-der is made in loiirt or ehanihors for jiMyniLiit ef .is.v rost.<, the order .-hall diivtl the taxation thereof hy the ta.Mii;; lua-tvi e.\rti»t in ias«»8 where a gros.t Hum in lieu of taxed cohU i.s li.vi'.l ly iL order, in ac-oixlanee with the 37ti> rule lif tln' loth of the ('■■iisclidatcl (ieneral Uriicr« \^'iq). foidr of jmhjn (r). "iW. The jiower of the f'(turt, and of the juil^jo .^ittini; in tliaiiiUr>. lo eidarp- or ahrid^^e the time for doin^' any ait, or takin;,- any iiinieoliii;', to ailjourn or re\ie\v any ]>roceedin^', and to ^;ive any direitinu a- tu the course of jiroeeeiling, is unaffected hy the.-e rule.-*. Getterol Jirectiotis («). 74. The peneral practice tif the Court, including; the cur-c of ir- ceediii^ ami ]>rai tice at the jud^^e's chamlKre, ii-* jmivideil hy tlu- •st.itutt' 15th and HUh Victoria, chajiter HO, and the general onUn* I'f the (I'Uit jvlalive thereto, shall, in case.s not provided tor hy the ('oniipiuiii- at. 18fl2, or the>o rules, ami i>o far x-i tlu- sana" are api'licaMe and uu* incui;- ^r.l. LXIV,, r. 7. (r) Sec the act, §§ 83, 1 19, and 201, {») See thoact, § 170, and antt. p. 6*3. lU'LES OF 18()2. Commmeemgtit nf ruUit. ■(J Tli.-f riilcH t^liill take tired analili' ■iinl Unt iiio'ii- •jdy tn all I'loiewliiip'- t' r i rt uuder the Conii^auica net, For i'rv]i.iririg and dmwinj,' uj> every onU-r mad-; at chaiuhers, aiiil .itti'iulinu' fur siinu', ana it the rfj,'i>trar'.H ottioe to i^'ct smu' cntcritl ........ For iDijrfttfiin;; ivt rv ordir, iii addition to the alxivo fee, jier folio . . ■ Fir "tlur duties ])erfonneil, siuh wf the let- mi the hi).;her .^ilation.s a.-* to soliiitor'.s Ii'i- siil'jt'ihed thereto, lus aiv apidii.iide ; e.xeept that the .'Ittial fee allowed on creditor's claims i.s not to apply. '|*li^^, uuder .such re^'ulatious, a fee of 3 ^.'iiineas ni.iy l»t' aIIiiWii! fur atti iidinj^ any siiianions or other appointment It l!if judj^'e's iliamlierx, the smne may l>e increjwed to any JumiiMt I'Xi-eetlin^' 5 ^;uinejw. The- fn- of 2s. <>. (id., where the service nuiy W itfi'( ltd iL-i provided liy the above rule (i3. iHeiL'Uul fliar^'es ivlatinj^' to printing; shall l>e allowed in lieu I'fi pits fir service, when> the fee for copies would exceed tlitdiarycH for printiuj,' and amount to more than £3. £ ». unnii'>ii'< ........ For rvciT oilier ilrawii up liy the chict > Icrk For every lulvt-rti-MMiuMit ....... For I'vcry r'TtiCiijiti' ...... For every oatli, alliriiiulion, declaration, or atu-utation ii|>.iii honour ......... //( tilt iiijiftnir'ii olKff. For evcy onler inn in court . . . . . . 1 For every onler made in clianiUTM . . . . . (i For I'Vcry oUici! copy of an order . , . . . In the exiimiim'^ii ojfiri', Tlie same fii's .i.t those direc't«-d tobe p.ii 1 and eolleited in >ii,li olh.e l.y the 2nd rule of the ."^itth of ilie Consoli.hited General OrdiTs (*>•), and the rei^iilations .«ul>ioined thereto. Ill the nroril miil writ rlcrk'n I'fi" , mid nfiort cjfl'y. Such of the fees diiicted to he paiil and collected in such ollice hy the 2nd ride of thc; 39th uf the ('ou.solidated (ienei,il Oiilers, and the iv^-ulations suhjoined thert-to, .us are aiijiliealile. In the taxiiKj mwtir's aiKce. The same fees iw those diivcleil t<> lie jtaid and collecteil hy the I'nd rule of the 'Mnh of the ( 'on.-o!id,ited Gener.d Urdeis, and the rej^'ulations siilijoined thereto. Ill the olfire of the l.nrd Chamillnr's jiiiiuipul Saredny. For every jK-iition ........ 1 In the ojjUce of the Secretary vf the rolls. For every jietition . . . . . . 1 d II (I THE THIRD SCII?:i)l'LE. FOUM.S. No. 1. Ailvertuemeiit of petition. [Rule 2.] In the matter of the Comi>anie8 act, 1802 (t) ; and of the comjiany. Notice in herehy ^;iven, that a jwtition for the windin;,' r.p of the alnne- named company by the (.'oiirt [or, fluhject u> the llUpervi.■^ion of tin-' "'""] of Chancery was, on the day of , IW. , prcsdiVil l" iu) .See for iirusent rulcn a« tui li -ulitlatctl Oviunil iir(.tii. mill nport ajHir. Iwl in such iillice oli'lati'il (liiieral thon-to, a.'* aro ■>lKce. I 1 iillcrtiMl l>y tlie C.ikimI Dnlri.f, iriiuiynl Stcretary. iflh It lOUS. I n 1 I) lj.ir.1' lor I III' "iiiiif. r. and I)., "f &*•■ [A^'Ht-^ '""'• K. Jiinl F., uf I've.] Sulifitiirs for llie injliliuniT. Ni). 2. Ajfi'liinl V'-ri/ijinij pfdtion. [Rule I.] In ('hiinci-rv. In till' inatftT, &<'. 1,A. I!., if I'ti.. iii.ikf until ami My, tliut such of tho sUteiniMitrt in tin; nt'ition now i)n"iui:tt' the Hiiiil statu- nira;- lis n late t Si Hi Vict. c. 89, SM. 81, 82.] Ii:.' M.i-t.r nf til.' Rolls ) ihjy, the .lay of \>^(]. kVicc-Cluiurllor > In tht- niatter, &<•. ]• I Ifn.m tht' iK'tition nl tin' alK)ve-iianitil cDniiMinv [or, A. H., of Sic., a alitor [ir coiitiiliutMry] i>f the alH»Vf-nan»i'r, Mii.'*t»T uf the Uulls], ami upon hear- iin;oi!iii?t-l tor till' iM-titiomr, an>l for , ami uix'ii reading' the saiil I*!',:; ;i. in altidavit <>f (the ^lay of , the " Times" newn- iw^t f till- ilay of [iiitir any nthtr paptrit] each con- aaia,' ai. ailvtrli-enu'iit of the sjiid |K'tilion [futtr any other evuUnce], I ki llnour [or, thw rouitj doth onler that the said company In; »anl u]! l.y this ('ouit, under the pnjvirtion.'* of the ( 'oinjmnie.-* act, l>i.M . [Rule 2.] lS(iJ (t) ; an I of windinj* up ,,f th." at' MUi>e iTvisiuu ot tin; IHG , prt-siiiVi 1 ui now :iii I ISliT i:li. l-iOS, r.l, in/n. 1' I'-l- N'u ; iinUr f„r mndiuij up, tuhj«,t to ntprrnsion. [25 i 2(> Vict. c. 89, KS. 117, 118.] Tie Ma-terof the Hulls I day, the of 186. i«. \ ia'-lhancellor J- In the matter, Sic. Tf-n thi- jietitii.n, &<•., his Honour [or, this CourlJ doth onler, tliut tho 'Imtan wimlint,' up of the said company be continued, hut "Jf "• t tilt .-iiiHrvision of this Court ; and any of the proceedings under Mi' \ iluutiiry windmg up may be adopted a« the judge shall think u. 3 y 1058 IH'IKS OK 18()'2. Ai-PBHiitx VI. fit. Ami tlip tTt'dilon*. roiilriliuttrM<>iis iiiltrcHtttl, arv (n lie at lili.rtv in apiilv t, jiiil^t' at I'liaiiiliiTb iiH tluTi' may lir i>(< iiMJon. No. Ti. Aiirrriitfmnit of unhr In im'wrf ii;;. (Flult- (i 1 III tlir iiiiittcr, v^c. I'.y an tiniii iiiiulf l)y llir Miiittcr of ilic Hulls [,,,-, the VircClnuin ] in the iilxivt' inattiT, ilittftl tlu' (lav<>t |' on tlir jM'lilicin of the ulMiVf-nunicd i iini]ianv [nr, \. ]',., uf waw (inUTiHl lliat, «.Sii'. [im \ii «r. [Hiilc !».] In tlu" niiittn, it( . Nutito is Innliy ^'ivm, llmt tin- Ma-ttr nf tlif Hells [m-, the Vi,c-('li cvUor J hai* lixi-d tlu" day of isfi , at (Ml.H'k in tlic I n, at his cIianilnTs in tlic lji)ll~ Van!, ( liain {.aiif ["»•, at Niiitim-nt <•( an iitli> ial li(|iiiii,it<>i ni tlic hImi ii.iniiMl i'iiiii|iany. (I. II., Cliirf I'l.rk No. 7. I'ropvml for ai^jHiiutuiiul n/ official liifuiiiator [und sitnticH) irhct form No. G h(i» hern innKul. In tht' matter, &('. \Vi-, the un(liT-i>;n<ovc-naiiirs<' Mr. W, T., of &«■., ji\ililii' accountant, \i> l'< tin .ittM.il lii|iii.liil of the said lomjiany (and H. N., of it<'., and J. I'., nt \i ,. in U 1 -urt-tiis]. Nam*'. Aihlieiui. .S'lmilfr of ."^ii.irt.^ biid No. 8. Order appoinlirtfj an affifial li({uidator. [RuU.-' \*K H ] MiiMcr of till- Itolls [or \ Vicc-Chamt'Ilor ( , the duy of , 1S6 , ut thainlxTB. J In the matttr, i^i. l'|>un tin- ajiiiliuitioii, Jkc, and upon ri-mliiif,', <.ti'., the jmlK' ^ heixlty apiKtint K. 1*. II., of &c,, otht,ial Ii(iuidator o'" tin- .ilmvi uain ionii>any [if muridj han not heen f/nv», <«/(/, And il i.t onK nil iImI « Niid U. 1*. H. do, on or hcforu tht- day of H'M.g t^ecurity to be uppr-jvcd of hy tht- judj,'f]. And il is ordcnil that wiid U. I . H .'lo, on the day of , and day of l^t; , iuid till' bunie duyw in eaih nut it'»«l inj; y tar, leave hi.s uccimiiU •iiiil ii/i. I llulc (I 1 til.' a\>ovrii;iiii'.l ci'iui>.uiy fo( r rfj'lH-»tivi' iiiiiii'^ iK'f'') !'" t, to (.. Ih. ntli.ial li'i'ii'l''!'^ an.l J. 1'.. I't ^'^^M «" '^' " Ln.W'T. [UUU--.KM1 iit'i.BH <»i' 18(52. i^i .ham^H'i-* "I lli«' *'''''' I'I'Ik'''- ■^'"' '' '"* "i'l»'''""l I'li' 'ill motn'v-t to l>f lo thi' iwlit "I till- iKTDunt of til'' i>|li. iiil liiiuiilnior i.l' tin- Haiil rnm- 1 i;v williin !«v»ii iH>iul,il, mlil, Ami tlir r.ai.1 jiii|j{c duili ;,(\av tli;»t '''»' l"""wii»K' u' t". i''iiiirfi| or aiithi>ri-' ''"' '•"''■'''' li'iuiclatnr, may !•«■ iloiic liy litlicr (-t, mil Hill', '"■ t^*"l '' *'"■ "'•!'' '■»' lii|iiiilati>i-H In-ivliy a|p|i(iiiitril, lliat i* t<> ^s Ufi'^l"' th' ii\; hikI tliat all ntln-r i\>U »ii rii|iiiri'il or aiitliuri-*((l t„ lie iluni' lif clone liy liotli ["»", all) till' (itlii i.il lii|iiiilat f'l' i/MVM, (i(/i/ ihrictiiiint dw In nn- until, iininiiiU, iiml ,.i"rkii' ih/') Ihi Ixink, (1.1 HI fortn No. S]. Ami tlif sjij.l jiidj,'!' ilnlli kftl'V limit aii'l restrict the jMiwerH ol ilu- ^aid U. I'. H. iw nuch p\i-i"nal tittit iai liniiidator, to the followiii;,' acts, that i-^ {•• say [ili.*4-ril>t til, mti ichicli llif iiKicUiointl oljiiml lujimlittor is to Ih" iHithnri.^'d to (/oj. N 111. ;'5 tlK' Ninl Slims the sai.l K. I'. H., \\. »'... ami I. r.,aiv williiij,' and d" a;^'ree, and i-veiy of theiii i- willint,' and duth iijiive for himself, his heii^, executors, and administrators, Iv Shese jirrsoiits that the said sums >hall he levied, re- I'Vcred, and received of and from them and every of them, and of and frmn all and siii^'iilar the manors, niessuaj^es, lands, t. II, niiiits, and lieri'ditaments, •,'n(Kls and chattels, of llu'iM, and every of them, wheresoever the sjime shall Ik- [ 1 1* ■7 s lasuls, t. II, niiiits, and lieri'ditaments, •,'n(Kls and chattels, ,if llu'iM, and every of them, wheresoever the s "l, if the I'nited Kingdom of (ireat Hritjiin anil lieland, ^nttu, iKftiider of the Faith, and so forth, at Westminster, ■die duy of , 1 HG . 105!) .\lTINI*IX VI. Porina ;! V 2 lOfiO BUI.ES oi 1802. AlTKNIHX VI. Forinsi. WlitTt'ii.'*, in tin- lUiiltiT, ipf, (Ji:!'. [^rA<■ litli: fiovi itnlr to i/i'h,/ hi,] Maslor uf till' Hcill-> ["r Vi.fCliiiiKcllnr ] luu., ),y itn nn'Mda tlif ilay of , 1H(I . njipniiiti.! Ilic wiid I!, i'. ||, ,,tli, lic|itiilaty tin- ^aiil jmlm- [or, in rnnf ih>' m-urihn i-iilfH thf iivili'r iififiDtiitiini, lia-* ajiiTi V'll nf tlic faiil I!. I". II. ax n pini ]M'r>4iiii to li«> a|>p'iiiit<-il otlu'ial lii|iiiilatoi' of tlit' siviil riiiii|iaiiy. iiikih I giving security]. And wlunan tlit; naid jud^M! \\m a|>|Hdviil nf tlu' s W. H. and T. P. to In- sun-tif* for tlif •'aid It. IV II, in the- iuiKniiits i t>|>|>o!ii(li a|i]iriil tion till' rhii'f ricrk "f the .^iiid jud^'i' halli ni^jiu'd an allowaiin' in tl margin lirri'of. Now the condition of tin- alM)vt'-writlcii rcin^'ni/ancr such, that if the stiid H. IV H., h'\x cxivutoi-s, or adniini.-.tratori', or any them, do and "hall < the r*aid jiidj^e hath [hy the «aiil onU-r] directed, or -liall lnrc.ift direct, then the alH)ve recogniziince to \k' void, otherwise to ninain in lii force and viilue. i TlIK SCHKDri.K AP.OVK RKI'KURKD TO. n. r. II. w. H. T. IV Tliou.iand |iuunil.''. Tlioii-iand |Miiini!s TliiiiKiml |iniinii I Taken ami a< knowled^'ed hy the ahove-nanied H. IV II , ^Vc, ic. 'So. W. Ajfiihvit 0/ mretu.*. [Huh- 10.] In I'hancery. In the mutter, Sic. We, W. W., of Ac., and T. P., of kc, Hcvemlly make oatli iuhI say folio WN : — 1. I, The .naid W. B., for iuyi*tdf, sny that I am wurlli the .Mim X of lawful money of (Jreat Itritain, over ami ul'ovc what nutlicieiit for the jiaynnni of all my ju.'>t . . P., for my!»elf, my that 1 am woitli llic -urn J& , of v^C. [ill (l'«»iv]. Sworn, (.Sic. No, 12. StnirtioH nf npjui^vtmntl of guliritor tn n^Hntil li(piiilnti7.] In the matter, vtc. The Miihter of the Uolls [i>r, V ice-Chancellor ] Kmcliin. official liijuidatcir ajipointing & solicitor to a.>., '"f «!ic., tu be uiy solicitura in this Aitbhihx VI, PonnM. niitttr. [V,)le ojHciul ll.liiiiliilor. [iri iS: ifi Vir iiiti> tlir liiiinl-* >(] U. IV H. tin- otfii iiil Ijiuidat'ir 111' till' slid ( I'liijiiiiiy. at fli'' otruc of tin- -nh\ It. I". H., ■'ituate at t., tin sum "f £ . I't'iiiK' tin- .iiiKMint nfilcl.t .ii-jHsniug to U- ihie frini thi' 'any [■ my Hum or Ulli''. l""'k', l>«l»r!<, t'HUtf, i>r circctH], (or, HiurUinillj i Mrihe Ihi" i.r.|»rfi/] ih'W Ixiii^' ill the liaiiiln i>f the -^aul A. I'., and to win h the nuiJ ciirai'.iiiv is /Tim'l /'tcv, eiitithd [i»r, nthrnpur, n» th'' i«M' i.kii/ /)<"]. UKFKUHKI) TO. •vvrally '"-'l^'' '"'''' '""''■''.''■' lli.il 1 am wiiilh ili>' Mini i.iiii, aii.l li.il.ilitit.^. ,v that I am wurlh lli^' 'iiiaj Uor to oificMl hqvulator, 'oul Vii't. c. 8!),-*. '•'"•1 l.^i^l him ill tlu> iKTtonnaucel N'l. II. IHrtilim to ojien acinHul at thr Ihmk r ( dav cf 180 . il dia:iiliciT<. ' 111 tlif matter, i^<.'. Tm the governor and iiiiii|«aiiy of the lliiiik of Kn^daiid. ('n'lltUMIlvll, .Ui "I ■!•!■, 'latid the dav of , Isd , having' l>e«u made :. the ul«)Vi' niatler hy tin- M.i.st.i i.j" tli.' U'dN \tiiiii'> uf the "aid act, and 15. 1'. M., of , .jviH).' hy onlti date|»ointeJ Uircrtiii.i! lii|uidator of the ^i\A lonii'any, yoii an' re<|i\e>led to m|mii an k'. uiil, t" It' entitled "The Account of the Otheial Liiiuidalor of the t'liniiiiny," in \onr l>ook«, |>iiisuant to the *i\\A act. .Ul >hi''|ik"< drawn iii>on .■♦ucli accouni iiiii-*t 1k' si^ie-d hy the otlicial ;,;id.ii"r, wlmse .-.igiiature i.s att. IT), Ailrertisini''ul of n)>i>itivli>ir)il nf ofli, inl liiniiiliiur jliul.' \l.\ In till' niatli'V, ^f. Tlic Master of the \U>\U [or, tlu' Vitf-riianccllor j ], ,, |,^ uiiliT ilati'd tlir il'iy i'( , ls(i , a|i|Miiiitiil i;. |'. |i til be utticial liiniiilatdi' ollln' alinvr-iiaini'il rumiiHiiv. Datetl fliis (lav I'f ISO . a. 11., tllirt(1,.rk N'l'. l'>. A'IfiTlisiiti, III fur ni'ih'tiii<. [Iviili' Jil. 1 III the iiiattci', ^r Tlu' I'i'i'ililtii's of tlic alMivc-iiaiiii'il < Miiiiiiitiy aii' ii'ijujircl, i.n ,,) 1 tliC (lay c if . 1 S() , t(i ^ciid their II, iiiHs mul ii(lilri>- ainl tlif ]iiirtii'iilai>* nf tlicir dclits nr claiin.'*, and the nanif.^ ami iicidn- i«f tlicii sdlicitdrs, if any, to K. P. II.. nf , tlic utiicial ijiiniiL (if the .■^lid iiini|)any, and if .so r(i|Mircil liy notitc in writini,' frniu tlii' «; (>lli( lal litjuidatiir, .ire liy tlicir -oliritdi-^ tu idnic in aiicj junvr tlnir -,: dclit.'^ or daiin.s at the I'hanilH i> ..f tlic Mit-tcr nf tlic l!.iii> |m,-, tlu> V: ( liam illor ], in tlic Hulls \'aiil, ( lianccry Lane ["i; at Nn. I.incdln's Inn], in tlic county nf Middlesex, at s\u\\ time .i.- diall sjKM'ificd in >iu li nut!'.-, nr in default tln-rcnf tlicv will lie c\.lu.Kii ii ilie lic-iiciit cif any di>trilintiiin ni.ide hefirc su( !i dciii.s urc |iio\(i|. day, tlif day nf , 1 --t; o'cldck in tlie nnnti, ,it the said cliaiuhei-s, is aiiimii.' for hearing' and adjndicatiiiu' npon the dcl't.s and claim.'. Dated this d.iy of , IHH . (i. II., Cliicf C'.rrk Nn. IT. .\[Hilitril of iiiliriiil UipLuhiltir im ^i (W< nml i7<(i»n, |Hu1c2l'.1 In ( 'hancery. In the niattiT, i^i . 1. I{. I'. II.. of v'tc, the nrtieial li(|uidatoi t\i tin almvt iiaiii'd iniupiuiy Innke oath, and sa\ lU' fnllnW'. : — 1. I have in the ji.iper writiti;,' nnss |'r(Mliiccd ,inil -ii.'Wii !.■ iiic, .ini iiiiuked with the letter A., s«t forth a list of all the dilits ainl . l.iims th liarticiilars nf whii h lia\e hccii >ent in to nie l.y iHrMiii~ niakiiii,' duini upon, or c'.,.;;;.in;.; tn he creditnl-s of the sJlid comjiany, ]iin-U;ilit til til id\citis« .•>.-nt i-siicd in tliat liehalf. dated the d.iy nf I Ht) ; and the names and a'ldie.-s,-> ,,f the jici^nn- Iv wlmiii su.ji claim all' miide. 2. I have inVL'.slii:ate.| the -•iiid deht- and claims, ami cmuk; ill' sjiiiie with tlie lHi>.ks i»'id iLk iiniciit.s of the snid (iiiii|Miiy. in unliT I asteituin, m, far ius I am aide, which of such del>t> and < laiiiis are jui'tl; dm- from the s^iid c(.mi)aiiy : and I lui\c, in the tir»t part nf the -aid li"t -et forth. sill h nf tile .naid d.lit.s and claims, nr parts ilicrcnt, us, in m; ojiinion, are justly due from the siid coinixiiiy, and pniji' i tn he uUowe* without further cvideiic e ; and I have, in the si.xth cnluiiih "f tin- -an first |«irt of the .-aid li.st, -et forth the amount.s p.rii]>er in he allewcl ii re-i»<'ct of such dehts and claims ; and I iMlieve that siirh aiunuiit.'* re.^l'ic lively are justly due and proper to he allowed ; and I li.wc, in the sevfiitl KULKS OF 1862. loca I of nfjiiiiil liijuuhitiir. •n.in T tlif ■'■'li'l 'ii^' l'*^'"' "'" *^^"^ ■*"•'' ''"*' "t''''"' '"V roasons for suoh Api-rnihx VI. •) I liavf, ill the neconil jmrt ol the suiil Vn^t, net forth Huch of tlit- aii.l .l.iinist! If l.v jHT-on- niiikiii.; .laimsj i-unijianv, I'lii-uaiil ti> t' ,l,iy of ,.i^(in~ I'V wlioiii .iliiijavit HWorn hcforc nu- this cl.iy ol W. B., &c. F\'|HT to hr allowcil without fiirlln^r t-viiUlln'. >taii Xamet "f .Vil'lrossc-H Purticiilars Uesiriiilions. or I'laiiii. i Amount Roa-xons for Amount I iirojuT wli''t that Claiine.1. ' U> \»i amouiiti aro ' allowcl. l""'n'»^T t'< '« I allowed. a t. i/. i i; ,<. (/. y...i jHirt, — Debt* and claims wlmh oiij^ht to hv piovi^l liy the tTfditors. Ximcs of Creditors. .Adclrt'HHcs .111.1 I)t»"-'rn>tii)n». Parlii'ulars nf Aiimatit iMlil or I'liiiiii. Claiini'd. JC i. "l -iiiil iiinip.iny, in "nU did.t.- and rlainis an- jn \\\v tir-t part nf thi' >aiil li-tijl rts ih.'nof, as, in myj projn r t sixth ii'hiiiiii proper to 1" that smh ann'untsrc- ml I hav.\ in iIm' «V'^ Nm. l!). Sotii-f to rrtilititr of ullinrnnrf of Jehl, [llnlf 23.] In the nii'Ui-r, itc. [Placo and datf.] Sir, Tl.j iltlit (.laiuieil l.y Son in this m.atcr h.u- lum allowed by the 'M it til'- sum of £ ■ [If /""■' ""'!/ 'til'iwril, mill, If you . laim '"'•'•'1^' .1 lar^,'ir -uin allowed, voii are hereby reijnired to come in and F^i^c the further amount claimed, ht'ii'liy rt'ciniri'd to I'.iiiio in anil |inivi' tlu' ilcl't i lainiiMl Iv v. it)4ain8t the altovc-nunii'il icinii.anv, \>y iWm^ your iitrKJavit, mii.I ^'iv: iiotiro thereof to me, on or before the ilay of ii,.\t ; ;,„ you iin* to atteml l>y yonr solicitor at tlii> chaniliers of tin- M.i.-iir i>\ d Hulls in the Holl.s Vanl. ( 'han>ery Lane [,,r, nf the Vin'-Ciiaiiiell.r , at Nm. , I.ini.iiln's Inn], in the eontity uf Miilill,»,.\, the (lay (if , 1 ^(i , at (''eh" k in tiic nn,,, U'inn the time a]i]Miint((l f 'V licarin^: an^l ailjiKlicaliii;,' ii]poii thr , l.iim. l»ate(l this (lay cf . lw(! . i{. 1'. II., tMhcial i,i.|iii(lat..r. To Mr. .S. T. Nil. :il. AjHdtint of treditor in firi'oj of (1,1,1. [lluu- :;.;,] In Chanciry. In the matter, (.^c 1, S. T., of Sa:., make oath, and siy lus follow.s ; — 1. The alxive-nanied eunii'any nv.is, on the day if 186 , the (late df the order fur winding \\\i the sune, and -till i> jii-tivani truly iiuU'hlod to me in the .-^um of i' fdr, v'tc [h'sn-Hn- . .vi.t>t in n .^»i7.] 2. I have not, nor hath ndr have any jiersnn ur {iersiiii> 1 v my ■ nlir. nr to my knowled^'e or helicf, for my n>e ri( lived the slid sum nt £ or any part then-df, or any .-eiurity ur siti-fai.tiun fur the -ann' or any ])art thereof [if ony senirity, add], »\( ijit the -aid [di.icnl' th> Hcnril[i\ hereinlH,'fon' nuntiuMed dr referred td. SwdHi, iii;e. Xd. 22. ' 'irtificate of rhi-f chrh (i.< to dilits oi\d rhnntA. [Rule 28.] In the matti-r, itc In iiun«uanec uf the ilirection.x j^iven td me hy tin- Ma.-t(T nf tlic I'l'lls for, Vi. (•-(■han((dldr ]. 1 heiehy certify that tiic rt.-ult nf tlie adjudicaiiun n]idn d(dit.- and i laini^ a^rain^t the aliove-ii.iiiicd d'liii'any, brought in juir^nanic td the advertifiement issued in tli.it hdialf, datol tlie d.iy df , I^G , so fai as siuh adjudi.atiin lias u]. to the date of tlii- etilificate Ix-eii jiroceedcd with, is is fcjjlnw- : — The delit> and ( iaiiiis whi.li have lieeii alldweil aiv s,t tuitli in tin l.^t schedule hi'ii'o, and, with the interest thereon and i.d.st> nKiiii"iii.il iti ilin wiid scli,-diil(>, ixti due to the I'cixiiis therein named, and aiiiount .iIii'^'illi'T td £ I have 111 the first j>art cf the wiid .si.hedule r-et forth Ptirli if the -lid dehts and claini!* as carr}' interest, and thi' interest thdciiii ha- I'ftt computed after the rate they n-sjioctively lurry down to tlie dati; •'. ''-'i certiticnte. I have in the second part of the said i«cheaiiii', aii'l -^lill i- jii-tlyainl for, 1^1'. [/'<.<(-ci7i>' .sA-ii-*/;/ *h< it ; and in lli'' i'".-''' '/'( r pcrsiiiis 1 v niy tiIit. ^r il the s;iiil f'Uin ot £ [■fai:tioii for tlir -aiii'- nr aiiv lie Niitl [(Itucril' thf :>((Hr>l'i] , f.i J(''i/,< iiml c/i'iDj.f. l.v till' Master of till' l!":ls rtify that tln' n■^uU "f 'lit-' llic ulidvi-iiaiiic'l I "iiil'aiiv, ril ill liiat l.iluilf. 'latnl the irli ailjuiii'ati. II lia.s ny to , is 'la follows : — wi'.i aiv -ii-t fortli in tlif i^i] ainl o'st.- iiu'iilioiu-'l !" '''*i iiiifil, anil aiiiimiitah>'ptlHtl (■ M't forth Mi.li of iIh' -ii4| iiitrivst th.ivoii lia- l-fU :-y ilowii to tlif ilato of tliU lU- wt forth fuih of thesiiJ till' illtl■rl•^^t ihiicon lia-l'i>'jf III, from th.' '1'''' u ^ IHfi , licin^ the date of tlu- f>ai(l unU'r to wiml ill) ^^'^ company, Appenhix VT. j,« to tlir dale of this ceiliticatc. p^^^^^^ The ilaiiU!' set for*h in tlio wcond schedule liereto have liecii lirought in liv the wpons therein named, and liave heeii ili-allowed. The evidence produced, &c. THE KIHST SCHEDULE ABOVE liEFEKliKl) TO. /•Vrs^ I'lirt. — Pilit.-; and (daiiiis which cany intcn.-t. Ko. NaintK of Creditors. Adilrfssps and Dc«criiitii)ii.s. Partirid.'irN of IX'bt. Total due. 1. J. L. 29, .Street, London, Stationur. Princiiial llltori'.st ikt t i>cr cent. |>or .tniiuni (1«h8 Pru- I>erty Tivx\ frmii lS(i to tlio dat* of this Certili- cat'' .... CosU* of Proof On l!dl of Kx- clmnKe, dated, &c. i; £ £ .M, , ToUl 6ntPart...£ | 1 /. Sioml ]nirt. — Debt.s and ehiinis which do not carry iiitere.'. i. W, i 15. I London. .Street, Coal Merchant. PrinciiNil Costs iif PriHjf OlHldii Hold A'.'-O •2 Total £ t .1. ./. £ •2 Jij I Add Total fii-Kt Part... ,£ Total first and Bceond Parts. . .i" io(;r> lui.Ks <)i- 1802. AlM'KNMX VI. Folllls. THK SECONI) SCHRDl'LE AIJOVK UKKKniiKD To. Datt'd this (lilV ipf A]>]ir<)VL'(l tin- ") .lay oi I H(! . ] , 18(5 . (!. M., Chirf (Jink. No. 2:?. \-tant, lu'twccn tiu' Iioursof ten ami t'lmroVloik you may HK-vivi- a <]h(HIi' \'>>t tlic amount ut' your (K-l>t, allowed in thb iiiattiT a.s uinlcr : — Principal . . . . . £ Interest •....£ ('ontn "f ]>nHif . . . f ToUl f If yoii cannot attiiid jifrs.-nally, the clu-c[Uc will lie dclivcn-.l to \\<\w order u|v<>n your tilling' ny and .•,'nin^ the .■^ulijoined form. The l>iH.-i or .o\; li'ttt-r a.'- payahli- to mc To Ml. K. I'. II., Olli.ial Li.iuidator ) of the company. ) rctVrri'il S, T., I'rcdiloi. No. :i I. Ajliil'iiit ill .iiipjHirt if lut of rontrihutorm. tKulf 29.] In < "liaiu:tr\. In the mattir, .Ic. 1, l{. I'. H., of vVc, till' otiicial li'iuidutor of the alMive-nauieil comp.iiiV', iiiakt; oatli and niiy, ;us follows : — ir: UULKS OF 1862. 1007 lUCKKKUKl) TO. 11. 11., ( hi. r Clrlk. i The IMIMT writirij; now priMliictMl ainl hIihwu to hh', :m{ of my iiniiwlfii.'d tln' wTy>m> wli" ■'"• 'oiitiilMitorics in llu-ir own ri>;lit. ;) 1 liavi', ill tlu' sh'oihI |Mrt of the ■^aiil list iiiaikcd A, di>tin^ui.>lu'd till' iii'rsiiiis wlio arc ioutriliiitorii'.>i im iioing ii'|iii'.-itiitati\t'-i of, or Kcin;^ ;u!,leto til'' 'ii'l't- of, otlll'IN. Sworn, .'ti'. tive dilit. [Hull' -Js] ill 1,,' drliv.iv.l t.i yi.'u r. 11.. Otliiial l.iiiui'lati' ill.' aliovt'-naiiifi N'o 2') l.i'!)uion''jt. [Rill.' 31).] In til.' matter, >^c. '■'- Mfter of thi! Rolls [or, Vio«-("hanri'Uor ] has app .int.-d ■^ 'I'iv of 18(> , at of t>it' clock in tin- 10()8 lU'LKS OF 1802. Ap PKiti'ix VI. noun at lii-^ iliaiiil>iT!', in Uu' Rolls Yanl, Cliiuuirv Lain' [,„, ,ji \,, " ~Foims. i.in.'olu's Inn], in tlu- connty of Mi.Mlcs.vx, t,, s.itl,. tlir li. of till' fontrilmtoric.-* of tin' alioVL'-nuincd oini]iiiny, ni.nK' mit and Kit the ihiUiil'vi's of tlu' siiid Jvnlgt' l>y the oflicial li(|ni(lat..r of ili,. s.ii.l 'im, ]'any, and yon an- included in suili list in tin- charartt r, and fur tin nuinWr of slum's ['T, fxtont of intt.'ivstj statod lidow ; and if nn o scttli'd 1'y till' said judp-, iiudndin^' voii tlunin. Dali'd this day of I sr, . H. II. P., Otlitial l.i.|ui,Uor To Mr. .\. r.. [and to Mr. C. ])., hi.s .MiliiitorJ. ■Ill No. nn Libt. N'.dui'. .Vdilreiw. Description. Ill ulial oliiiTO'lir ini'liidc'l. Nuiiikr III sliiiri'.M ("I-, fXti'Ill "I inttre't]. Nil. -7. AtH'htvil of srrrirt of notiir. [Ruli' :io.] In Chanviry. In the matter. I'^i-. I, \V. S.. of, \c., eleik to .Messrs. I', and D., of. i*ii'. tlie -i.liiitms if the olhiial li'inidat'iv nf llie almv. -named iiini]>an\, niaki' nalli, and -av ;u follows ; -- 1. The lir-l six i olnnms of the sehedidi' imw ]iiudurid and -lii wii to me and marked with the letter A, rontain a true if]i\ of tin- list uf eontrihut"! ies ef the slid i'im]iany, made out ami left at the rliandcrs nf the Master of the liidl- [-ir, Viie-Chancellor ], l>y tlie -aid eltiii.il Iniuidator. on the day of IHfi .and now mi the lilf I'f jiroeeediiiL;- nf the said iomi>any,a,« 1 know U>>\\\ h.is in^;, nii tiie day of 1 S(! , examined and eoiiiiiaied the -ai.l siliedulc with the slid li-t ; and I have, in the -e\eiith toliiiiin of the siid siluihile maikeil A, sit forth the names aiul .iddreisse. of the soli, i'.ors wlio Iuto entered aiipeamiices foi- iin> of the eontrihutoriei- j!,"].. ' ,;. i.c siiid list. •1. I did, on the dav of 1H(.' ." . .i:.iMKr In riin-, aftei nic ntiomd, serve a true eojiy of the notice n • ; -..:'ced iliu! -li"wm to me, ami marked P>, uikhi each of the re.sj.i';tive -k-' •? whose naiiu.*, .•iddresses, and tion, in what character ineludeeotivcIy or theit KULES OF 1802. 1060 'liiini'i'ry Lani' [<», ,\[ Xd. icMlcSPX, to Scttll' tllf li-t i));iny, iinuK' o\\t iiiid Kft ,it linuiil.itiir (if ilic siiid coni. tin- rhiirattiT, iiii'l for llir I'l'liiw ; iunl if iici -^utVieiiiit iuu' iiiiil ]ilinr .ifiin-aid, lli. ; Vim tluTcin. II. 1'., Olliii.il l.i.iuiclitnr ..liiitori nci'orlin;; ti> tlii-ir n'-'iM-ctivi' imino-s iiml iiililr»'»:f!iriii;,' in Appewdtx VI. •li, sii'l sclic'liili' miukcl A. ;iiiil with tln' iiriijHr iMi.-*tiiK'''-^taiuii^ allixod tLi-nto lis I'ri'piii'l Iftlfrx, into the ixwt-olUcc receivin^j-lmnsj', No. ;, atl.'.l, ill the CnlllltV uf , lutWiill tlic limu^ of ,,,1 of thf cUkIc in the nnou uf the saiil • f Sworn, Sic. Nil. 2^. The tchednU rejerred to in t'vrm \o. •27. Forms .l.iy ition. In wliiit oli:ir:ii'l -f ], l,s tlu- -.ml Mthi'J.l ISC . and iK'W on the tile -f I oiii having', mi llu- ,..,1 the Slid -.ludulf Nvnii olunin of Ih.' -aid whi-(lnle| of thi- soli.iU.vs wIri h;!VO« ,rif.. n,"i'. ' :•. ■'■•'• -•'''' ''"■. IS,' .: . .i:.umr liiivitt'l ,:,■.•.! :illd -li.'Wttl ,;, wliosc iiaiiu'J,! lire ir • j ,,,.,, hi,-.!. di->MnhcohMns. . til.- t.il'ular form at ilit !'4| niliiT en li.-l, ii''»"<-'. :»^l'^''^'J itiinil'tT of shares [or, exten of thu Slid notice Wit- >eTV(-i)lfmentnl list of ontrihutorut, and a^davit in $uyptiii>,'ui>lu.,| su^ of tin- Hiiiil ])i'i>oii.s iu< iirt' (diitiiliutniit-i ill iluii uwn n^lit. 4. I liavi', in tilt' Hccoiid ]iiul of till' s)u. Swi.iil, i^c-. No. 3(>. >!>ij>fih)iiinliil lint of niiilrihiilnrir.'i rrfrrred to in t'lirin .Vn. ill. 15. Ill tllr lliatliT, iVc. Tliis -uiii>lciiiciital li>t of roiilriliiitorif.'* iiiaikcl 1'., \v,i.^ iniMlnirtl .in'l nliown to H. P. M., ami in the same siii>]ilt'iiii'iital li-l wl i oiitriliiitdiii- ii.s n'frrn'il to in his atlidavit, sw.ini livfoiv im tlii> ,l,iv ,if 18(! . w. r... &,•, ,\'('^. — Tlif Ditfifilrmfxliil lii>t iV tit he mudf out in tlf ittiir.i' furm 'if '/'■ oriijiidtl list, Fonn A'ti. ^/i. Nip. 31. ('irtiU'lttf of rhirf ilirk uf sfttlfiiii iil of tlu list of cnntrilnitun's. [Unit-;?!.] Ill till' iiiattci', &i. In ]iur>uaiir<' of tlu' iliii'i'l imis ^'iviii In nic I'v tln' M.i.-tii nf tlir 1!mI1< \or, Vit<'-('liaiuillor J, 1 lirri'liv ifitifv that the n!.: - 1. Till' >r\ri,il |>rr-iiii> wlio.'-c naiiu's ari' sff lurth in tin- .'-I'miiil lulaniii of till- (ii>t M hid 11 If hi-ifto, havi' Im'i'Ii ini'linlril in tlu' sai>l li>t nt ■iilii- hiitorii-> iU'^ iontiiliut"iii'-i ol tin- j^aiil roni]ianv in n's|>i'rl of tlif miinl«riif (•hart's [or, f\ti-ut I'f inti-n'.-tj ^I't upjMPsiti- thr nanu's of .suih mntiiliutDries ri'sj«'i'tivi'l\ III till- waiil si'lit'tluh*. 1 havi-, in thf tirst part of thr wiid mIii'iIuIi', ili.-tiii^iii-luil sH' li I'f tlie caul M-\inil pn-Min- imlii'l.'il in tin; >aiil list, a.s ai-f roiitiilmliM'it'i in tlnir own right. I havi-, ill till' Mioiiil ]>ait of tin- saiil sihcduli', ilistiii;,'iiis!ii'il such i if till- -aitl .-fVcnil jK-iMiiis imhultil in tin- saiil list as aiv iMiitiiliuturii's, :u hi'iiij,' ri'iircKi'iitiitivi's of, or Iti'in^,- liaMr to tln' ilihts nt ip!liri>. iJ. 'I'hc several |K'rsiiiis wlmsi- nanus air set forth ill the seieiiil ii'liimii of the M'loiul M heiliih' hereto huM' U'ln f.xrliuli il fioiii the said li-t I'f contrihutories. '.i. I have, in the seventh riiliinin of the saiil first ami seidinl silniluiis,, M t forth opjpipsiie the iianu- of eat h of th" saiil se'.eral peiMPii-^ resiuiliviiy, till- (late when sueh jieition was incluileil in or e.Mlmli il fn'iu tiie .-^unl li^ of contrihutories. Thu eviilt'iicc produccil, v^c RUI-ES OF 1862. 1071 I'll to I'licli ; iiiwl siirli li-t iuii, aii'l I'llicr, tiui; ,iiiil arki'«l 15, ili-liii^ui-lidl >ii,li 1 ipWU lij^llt. iHt iiiiivkcd 1', ili''tiii^'ui>lnil < Ill-ill^; irim-iiitaiivi'H ni, ,,i ftrred io in Fnrut .Vo. :;',i, aikiil I', wx-^ li|i«lunil .wA iitiil \\A lit' (iiiitril'Htiirii" a.- i-i (lay I if oat in till' siiini' fcrm '!.< >l" I of ilh U.it of oiiilriliHturi'.-. . liV tlu- Mx-t.'l nf til.- Unll •rlii'v tliat till' nsiilt cf ili' [aliovf naiiii'il cnniiKiny, nw.lc l^c l.v the I'tli.'ial lii|iii'l.il'ir 1 SC , ]iui--iiaiit I'l s Ccurt in tli.it lu'liall', -" atr 111' tlii'* icititwatc, i> ;i< initli ill thi- M'M.ml .hIuiuii ,.,1 ill thf saiil li't nt '-utvi- ill ivsjH'i't (if tlic miial"i"f , ,am..^ (if Midi coutril'iit'inc* •, (li>tiii^iii>lK'l su'li I'f the 1- ari' coiitri1iiit('iie'> in tl"'f I .diilc, (li>tiii;,'ui'lHMl su.lmf li-t as aK- (•.iiitiilmtdric", :»] ,l,.l,ts 'if (itlicl-- . f.,rth ill the sc( Mini I "11111111 1 viluilcl 1 1 "111 tl"' -'"'' ''""'1 id liiyt ami sfcdinl sdiciluHi ..veral i.ci>..ii> rc-iicitivdv,] ,■ ,.x,lii(l. (I horn tlu' said list] TlIK FIRST SCHKDULK AHOVK UKFKHUKD TO. l-'irs' I'lirf. — C'tintriliiitDries in their own ri^-lit. Ari'KNDix VI. Furaui. yri»l 1 N,.. in I Name- lilt. Addr Doicrip- tion. t 1 . ! NiinilMT of t> » I Iti what I , ,1 llate when cntinMStcr , , c iiiclinleil in I , I cxlcnt 111 .11. irit\ K KHI'"KI{KK1> TO. N .!! Xium-. Ail.lresn. Dt'iii'ii[>- ti(in. ! I In what .NuinIxT of Patt.' wlirn rharu'lcr shiircn [i>;-, fxi-liulcil Iirii[HW«il til fxtfiit lit' fiMiii the Ik) iiu'iiiilf. 32. Orihr on npplicntiim ^) vary lUl. I lay Lit MnattT cif tliv Hollrt [cr, Virc-('li:uicillor ] ' 'lay the nay ut [sc lit cliiinilxrx. ) In tin- iiuittvr, &i'. Upnii llif ii|)]iliralii.ii iif W. N, to review llie list of rcmtiilMituuts ,,|' thi* siiil roiiii'iiiiy, in riMpcrt df the iiK lii-i.ni .if ilic .^aiil W. .N. ilnrij,, nml that his ininif n>uy l>f cxcIuiIimI tlnn'tnun, und ii]>.in hi'utin^; coutiicl' &(•.. anil ui'on nailin^^, i^o., It U Drdtrcil, 'i'liat llic niiiiic dt tlif said \V. N 1k' fXi'luilfil Imm the said li.tl nf ''"iitnliuloiii.s [-ic, tlic juiij,'!' (lutli imt think tit to niaki' any order on flic f«aiil a]i|iliiaticin, excujit that the .lail W. N. do ])ay to H. I'. II., tin- ollicial li[ilif4ition, to l.f taxid by thi- taxing nmsliT in ijk' the partirs dithr]. N'>. U3. Affuliivil of nffirvil liifiiiifiilnr in .vipjmrt of prujwal for cull [Ituio :)3.] In ('hamtry. In thf inatfrr, I'^i-. I, |{. 1'. H., liitc, the uthciai liiiiiidator of tin- aliMVi-iiaiiud onm]iaii ,-, niakt' oath, nntl .siiy iw folhiws : — 1. I havf, in tin- sclu-duk' now |iri"l\iccd and shown tn nic, ati.l \M\h\ wilii till' It'ttor A, I'd fortli a hlatunn-nt, .showing' llu; ann-uiil iliir in ruHix'tt of tho didit*« alhiwtnl a^aiiwt the Miid company, and the ('.«tiiii,iti(l amount of tin- custs, (har^jcs, and cxpfUHCM nf mid imidiiital to the wiiiiimif >ip of till' atfaii-n llifiiiif, uikI whit li several amount,'^ lnriu in the n>{;;ri viitii the Hiini of £ or thereat 'oiitn. 2. I have al-n in the said sihediile set forth a i*t.itrmeiit "( l\w .l-vIs in haiul ludnn^^iiif,' to the n-iid eoni|>any, ainniMitin;^' t" tlie -uni ui £ ami no more. There ore no other tuwet.s Uilon^'inj,' to tln' said i.i'iiii'.iny, excejit the aiiiiiiiiitM due frnm eeitain of the ((iiitriliiitiiiie- nf til'' Niiil riimjiaiiy, and, to the he.'^t of my intormation and lieliif. it will he iin]in<. silde to ivalise in r»'HjK'ct nf the said amounlH more ih.m llif sum nf £ or therealionts, 3. It api«'ars l>y the ehief ihrk's ci rtitie.ate, il.itid tie 'lay i 1 N() , that jternonn have been nettled mi lh<' ii>t d oni' triltutories df thi- said (ompaiiy, in respict of the tot.il iiuinliei if rthart-M. 4. For the piirjMwe of hiiti.sfyin^ tlie sevi-nd delitji and lialiilitiis "f i saiil (iimpaiiy, and of ]iayinj; the eosts, eharge.i, and expenses d iii ineidental to the winding,' up the alfairH thereof, I l.elii've tile .••iiin £ will lie reipiiivil, in addition to the amount "f the u.s.'*! t.- "t tl Haid comjiaiix meutiuiied in the said riehedule A, and the siiid sum £ T). In ordei- t" provide the saiil sum nf £ , it is iinrs-ary i nuike a tail lljinli the neveral pej-snn.s who have heeli settiid mi tin- list i contriliiitories as hefore mentioned, and having' regard tn tli<- iiinl'alMlit that rtome of siuh contiiliutoiies will Jxiitly or whully tail ti pay ili amount of sueh call, 1 helieve that for the purpo.se of lealisiiij^ the aim .n rennired ils hefoii; mentioned, it is neces.s^iry tiiat a cidl of £ tthaiti should he made. Sworn, vVc. nvi.Kn Of 1802. 1078 lUl. [Hulo i'j.] pjMrt of pmjinml for call No. 34. Summons for intended call. [Rule 33 ] 111 the matUT, Sic Ixt all parti'''' coiicrrncil iiltiiiil iil my cliiiiiilH'M in tlio Hn\U Yard, Cliaiici-rv Laiiu [or, at No. i Liiicolii'rt IniiJ, in the county (jf JliiilWx, on iluy, the day of 180 , ut iltlio cluck in till' iKHiii, on the licarinj,' of an a|)|»lii:ation on the part 111 tl'i^^ ollifial lnjuiilator of the al)ovi' niuncil (^onipany, that a call to ilii anil Hint of jE 1'*t share may \tv maile on all the contrihutorje.i [jr, i/wpoit any pttrticulitr chtt* »i>trif]i ».''»! im»i«] i.f the naiil lumpany. John lomiily, Mtuster of the KolU. or X. Y., Vice-chancellor. Tim sumiiioii'* w;w taken out liy A. it: 15. of , in tho county of , solicitors for the Muiil otfuial licjuiilator. T'iMi. A. 15., of I'tc, a coiilriliutory of thf saif the Rolls [ar, Vicc-Chancellor ], notice Ij lari'tiy given that the .^aiil jml^'e h.us ai'iiointetl tho liivof ,186 , at o'clock in the noon, at hi.s cluiiikrs ill till Hoili Viinl, &c., to make a call on all the contrihutories ohhcsaid cuiniiaiiy [i'r,ai thu ratf may fcn], ami that the olhcial liquidator of the saiil c(iiii|iany propoHi's that such call .xhall l)e for £ per iLm'. All persoiLs interested are eiitithil to attend at Nuch day, hour, and flia', tu I'tlVr iilijeitioiis to .lUi h call. Dated thi.i day of 1H({ . (1. H., Chief Clerk. No. ;3(J. denernl order for a call. (Rule 31.] _£ , it is lucts-iiry ta liive he.Ii K'tll. d on till' list ' i,,^; ivKald to till' yu'\'MH ,lv or Nvhollv tail d \"^) '\ ,„V,„.se of leali-ii.;^ til.' .uiii'unj • that a call "f i' Mtt.r ,.f thf |{i.ll.s [or, \ V,,-(:liaiK'LlIiir ] > the day of , 18G . « i bmiilxTs. ) In the matter, &c. Ijiii the a]ilili(atioti i.f the olhi i;il liiiuidator uf the ahove-nained coin- ;ey, .ui'l iiiiiiii Hading' two ordeif, dated the day of 18(i , l'^-''^': day of 186 , the chief clerk'.s certificate, datea "■* 'lay of 18»! , an atlidavit of \\\v .said otlicial liijuidator, p"' l^B , .witl the exhihit luarkeil A, therein referred to, and an '^''"t nf |ii,,i ig(j ^ It is onlered, That a call of |;ci7/i thf ifmrrnl unhr fi,r n t,,// [Itulu \\\.\ III till' iimtUr, ^0. Tlu' ftiiiouiil dm- I'rinii jmi, A. H., in n-Hpi 1 1 tT tin r.ill mulr l,v ii,, aliovc ['T within] nnltT, in tln' ^vini nf i" , \\\\\A\ miih j, t., ),■ iMJ.l l)y yon into tlu' llaiik nl l^n^;l.lnll, tn ilir m . ,,niii niiiitn,!,.,! in i||,, ^|j,| onliT. Von t-iin jiay tin- Kann- in j)»i>nn, nr tliiii\i).'|i u luinki i i.r (,t||,f upi\t ; I'nl tliis nniico nml ii>|iy onlfi- tnrivtnl |ii>m (•iilni;,"* luin;; l.iki n i. ii^t yiin fur non paynifiit, yon nni»t, iinniciliatcly npon Muh iiiyimnt )ii ciinH*' written ni'tin' if tlic |iayinitit, and nf tin' tl.ilc tlni.. I in 1, _i\,n to inc iiH tliu iilliiial lii|ni(lat<>r of tlic Kant ri'iii|>aiiy, at mv iliic No. Slnil, in tin; connty nf Mi(lilltTtr.x. Uattil III is (lay ..t H. i'. II., (dhrial Li.iui.Unr. To Mr. A. I!. No. 38. AJIidttnt in tiijijxirt of (ii>iiliiiiliim fur fvlrr f«r j'lniminl (7"i,i// (/«<■ fTtnn cvntrilindiru*. [Uuli' 130.] In Cliantery. In the matter, fic. 1, U. I*. II., (if &<-., tlif I'lliiial li'iiiiilatur of tlir alioM-naiiinl iip|iii.aii]f make outh ami wiy ils fnlldWM : - 1. Niiiii' of till- iciiitriliutiiricH of tin- Kiiid i'uni]iaiiv wliusc naiiu.- iUi furth in the sihediilf lurcuiitu anni xi-d, m.uktd A, liavc paid, iT iim-i.'l li be ]>aid, the r»»iK.Tiive KnntH wt djiposite their nxiuttive naim-i in the .m isihiilnle, and whivh minis are the respeitive anmuiits iiow ih\r tiiin iLn nsj.i ctively in n sju>. t of the rail of £ jur Amw in jiUMiiiH' m the (iixler of the judge in ih.it Ulialf, dated the day uf 1S(1 . 2. The re>i|>i rti\e anioiint.M or hiiiiis m'I opiiositc tin iLiim - nf >ii(lMir« tril'iitories resju'etively in niich Hche«liile, are the tiuc amounts diii- ,ii« owiiig liy Hiuh eoiitrilmtorie.s i-eHpeetividy in re.-]iei t o\ tlir -.lid cai'. Swurn, lit. THE SClIKDL'Lt: AKoVK HKI'liltUKD TO. Ko. on List. Name. Addii'Ha. „ ... '" ^'f AiuuuM U<'.Hl. £ ». d. Note. — In addition to tlu aboot iijfidant, «»< attt'luiit of the scrvtct of order and nvtice {Xo$. 3U und 37} will be required. iirr.Ks oi iHli'J. 1075 ncnil Drib r fur n i.{ili I't (if till- call iiiiulr l.y ilw , wllirll -lini i^ t.. Ir ]i,ii,l count iiii'iitioii.il ill till' Niid ■ 1- tlirii\l;.'ll A liiinki 1 Hi nllKt (• luixliui'il at llic liaiik iijiou -ill, u|>iiii 1 1't living tlu' -ami-, , iiunil'iriil . 'i.iuil Mcnllll;^'- licill;^' taken i; ilmt ilv iipi'ii -mil payimiil in, till' tlatr tlulci't tn I'l ,iVi|| 'aul (i>iii|.\\i\,<'t .au-i'll ir rl■^J'<•t■tiv^• Iialm- ill till' -m uuioiiiit.i now ilui- li"ia ilieif jHT Hhan? in jiUMiaiia- ( the 'Uiit- iluc I n^iiri I «jl till- -aiil call. ui:i-'KUiti:i) Tt>. I III wliat • i,,ti I cliariiUT iiiilu'lt'l. Aiiiuui.i ||U(. 37; ii-iU be rtiiuircd. S . 3ft Onlrr for }Kt\iv\f»i nf mil ihn" from a rnntrihulory. '[\i(),h'Uroti\\<: H"!!". ["'". I [Uulc 3.').] Viivl'liai) flliir 1 at ( 'liaiiilMTx I i\t\y, the 1«« . tliiy of III till' inattfr, ^c. L'tioii till' a|i|iliiation ., of, iS;r , [nr, K. V. of, fi,\, tlir I.^^mI p. isoiml ■iilativi' of I'- M-i '"'*' "f ''^''•t |''"'^' ['"* i/ ";/"•"'•' "'•'"■"/ ""i^-|7ii/f<.ric.<, till' scviT.il |.i*rs( OIIM wnic'l III ihr •iroiiil foluimi of till' M. 111'. lull' to tlii- onlrr lii'iii;,' rt'^jH-itivily tribiiti'iit" "f till' •"""' ioin]iiiiiy I ilo on or Iwlori' tht Ix'f. • lav of [HV, , or within four ilays aftiT xirvin' of tlii-. onlrr, ]>ay into ii;v |l.ii.k iif Knh'l'i'"!, '" tl'" iicioiiiit of the olli. ial liiiui.l.jtor o|' tin- ci>iii|>aiiv ['>/' tu A. H.,tlu! ollii'iiil Ii'|iiiiliitor of tho Mitiil roiiipaiiy, ,. lij; olliti". No. Stn'i'f, in tin- comity of Miilillrxi-x], the .jiiiii of I [if ii'i'iiiist a Uijitl fur.'Diiiil rrf/rfsnitiitiit mlil, out of tin- iu-.-sft-'l (f tht' will h. M., ili'iwwtil, in hin huml;* iw huiIi Icmil jK-r^onal ri-jin'm-ntii- trt .t* afari'siiil, til hi' ailniinisti'p'il in a iliir course of ailiniiii.itratioii if lit Mill K. F. lia.'< in hi.s hamli »» much to In- luluiini'tereil : or .j itijai)uit iTfnil O'lilriliiil'iri'S, tho Hfver.il :*uiih of money >tt o|ii>o.' Fonn \o. 37.] K. 1'. II., Olhcitil Liiniiilator. Ii.Mr. ' hf I'tiilDrviiuMit h to the efTect and hare hia estate wiuestore.l. iSu* ».! if th« urlar i.H not oUyc.l, the iK^r- uo# U. 8. C, (.>rvler XLl., r. f>. I « it ieuuii will U' liable to be arrenl^d 3X2 .APPtNKIX VI. 1070 um.Es OF 1862. Arrit!«iiix VI. 41. f'ertificntf of i>,nimnil i/ woii^v »'»'" thi- lUink of Kmiland [Hill.- 3!).] Til tlic matter, i^c. (lav of 1S6 I lurt-liy (•(•rtifv tluit ( '. 0., of i^c, lias tliis (i:iy I'aid itild tlio I!,nl 1 tl Kn^'laiii linuidatoror tli .lav of 11' >UIll i> ti> 1)<' jihucil 111 till' cmlit (,f (] conijiuiiy, pursuant In an (ndcr ilatod tl !'• Oil \M] For the governor ami coniiiaiiy nt' the Dunk of llii^land. II. M. ('a.>l ncr. £ Ko. I'J. A[li(lit (if xi-rvicr nf Drdrr for jmifumit of Cfill. [Kill.- -.i: In ("haiuciy. In tlu nialtiT, iS;c. I. .1. iV, of v^c, make natli, and sav a.'* follow.s 1. I did on tlu- C. 1"., of 111 till' loun day of \y of IHf) , piTsonally m'l 1'., with uii onlit m.- thi.H inuttiT I'y his Honour th>' Ma>t»r fd' the Knli.s ['»■, Viuef'li, aiiivi ]. dal.d th dav of IHd , whcrrliv It oidind {■"t ifitt III'' orihr in tlf jinst trtiii] liy ■! -iivi'i iM<^' to and 1 litll tlu- saiil (i. 1'". at in tl It' I'ountv i'\ CilVl trill' di 4 the said order, ami a; tin- >a!iic- tinic jirodncin^,' and .slmwin^' unto hi tl ic sail 1 C. v., thi' -aid original oiiUr duly i ntiiti irn so slTVl'd, till' I' •J. Tht-ri' was indoi-s'-d on the said lopy, \\] Words, that is to say, " If you, the \Mtliin nanu'd (i. K., lu-^'li'il tn , tiii^ oriii r liy the time tlu-rcin Imiiled, you will ]»• liiildc tn 1k- ;irri uiidci- a writ of att.n hiiunt i-suid out of tin- llij,di I'ouit nl CIlihi.", liy till- -i'r|(antat-aiius attending' the saiuf coiiit, and al^o in; lialii- have yoiir otatc .-ciiuc.-'lt'rvd for tlio jmrjios,- of coniinllmg you tn HaUli- older." Sworn, Sn:. No. -13. A^fim-it iif }in)i-jxii(iiiiiil of vumeif hy miler dirtcUd to Ix pa\' In ( liaiu eiv. till- lliuil; <,/ Kiujltvid. [\{\\\v \i\.\ In tlie matter, &<: I. li. I*, n., of \.-., the ollicial liuuidator of the almve iiaiiied oi;ows : — make oath and say ils f 1. (!. F., the person named in an oriler made in this niatltrl| llouoiir the Ma.ster III till HoIIh [or, Vice ( 'hiinceljor dav of l^(i , hits not ]iaiil into the lluik nl' KiiJ to the aciount of the oiheial lii|iiidatoi' of the whoii' or any part of the sum of £ •lireited. a.s iiy riiiiipaiiyl hy til'' ^Jti'l [Or, iji ciiDf of iiftTral jmrtifS.] 1. None of the seveml jier^ons whose namn.s and addresec^ al forth in the schedule lieRunder written, and who have rejipicliM'lf IllLKS OF 18()2. 1077 into th<^ Bank c/ Kwjland. ler /or jxiyinml i^J cM. . iv>(TVCank, tliat .siuh pay- ,„p,,. [„r, iuyineiil-<| h.u- [or, liave] not Keen m;Kle, and seen the certiHcate ,1 iMUiiLiit ill. nunilierud [nr, several cj^rtilic^ites i.vth eoluiun of the ..1.4 • liedule, ii]i|)o-iit' tiie names of tlu; slid re-]>ective person.s, bein^ (cruriati't] furiii-tied Ky nn- to the cashier of the -aid liank for delivery lothi-saiJ •'• K. ['"". -eveial piTson- resjiectividy | upi'ii -iich payment ["/■, MViiidit^] hein^' laaile, still in the hands of the cashier id" the Siiid li.mk. yi riHiia- [or, notices] of such jwiynient [or, jiavnieiitjt) having; heen madi- U- [r. li.ivi] IxM-n ^,'iven to me hy the sjiid i !. V. [or, several per-'MH^ ;Birt lively]. Sworn, I've. TUK SCllHDrLK .\iU»VK KKFKHHK!) TO. Ntne. .\(i(lrf.vi. T Amount. ve-iiamed coi", ^n rder made in this lu.il )se nuiues^ nil" ,, !u,d who have re^l.l•cllM■l.^ Xt. 44. H'-fitat to invt-at aish in (iorfrniiifiit stoik or iVjc/u-^ ikrr MU. [Kule 43.] 'ii the matter, &c. To the IJovernor and Company of the r..ink <>\' KM::l.md. 'relitlrlatli. It Jliprarinn thti the sum of £ cash is standing' t.. the cn-dit «!!if aiviuni i)f tlie i.tlicial lii|iudatnr of the ahove-iiaiind comp.mv, .»ciii.>h.reliy re.[iUMted to invest the sum of £ , part thereof, atiit 1 ;irLh.i-c of l',aiik £'.\ per cent, annuities [or, Ue«liu:eil £'.i per leiit. an- MititMir, N.w £3 percent, amaiitie.-, or. New f-2 lOy. peneiil. annuities] h thv' liimo of H. P. II., ,,f .tc , the othcial li(iuidator of the >.iid com- !«>["■. m the purchase of K.uheipier l>ills, and to depo.sit such KxcheijUer kilt- lu the lUiik of KiiKdaiid, in tlie n.iine and on Ik half of the said j«*.U| Uj ii4.i;,,rj. The siiid annuities (cr, K.\(heiiuer hills] are not to •**••!. traii...ferred, or otherwise dealt with, e.xeept upon a direction for lii! r^l""*-' si^'iied hv the otiicial lic(uidator of the said company, aud 1078 ni'i.Es OF 1802. Forms. ArpiNi>ix V'. cnuiit'TsiLjiHil 1>\ tin' chief ilrik i<{ tin' Masicr nf tli,. 1{,,|1^ r,„.^ yj^^ C'liaiiitll.ir ], (ir uinliT iiii (Hili-r to In; inadr )iy tlir s.ii'i iu.l-,. DaUl this day ..f , 1 8(5 . 1 am, j^i'iitloiiu'ii, ^^'lll ino.-t (pl)ct, J (J. J In the iiiatti I, \i'. Noticf i.^ hiuhy ;4i\cii that the Master of the UuW-^ [or, Vio-Clianoilli): ] ha.- iliiritcd a im-clin^; nf the nvilitors [.,r, ri.iiti!litUMiu.s of tlir a)io\c iianicil i. <,ni fiTtaiu mattors iilatiii^' to ilic w imlin^' up of '.jic said coiuiiaiiyj, m.\ tint such iiR't'tiii),' will !>(.■ hi'ld on day, the dav il 18«J , at o'clot k in ihc iiooii, at iu tlio tumitj of , at whifh tinu' ami jilact' all tin- i-nditors ['.»•, i'»iitriliiitcine.<' of thr .-taid comiiany arc n-qiu-sU'd to attend. [The said juil^'r h;i aj>j>ointed H. T.. of >!tc., to act its chairman of such meeting;.] I»ate.l this day of 1 H({ . H I'. II., Oili.i.d |,i,|i;i,latni. No. KJ. A^jpoiiitiiirnt ttf prortj ^) rofi' ut lafitiinj nf rrolitors or roiitrilnttorU*. [Uulc 4(i.] In tin- m.ittci, >.S:c. I, W. S., of in the county of , In-in^' a cnilitu! contiihutory] of the al'o\e-named comj>any, herehy aiip'oni a.s my jiroxy to vote for me, ami on my hehalf, al iln im-. of the cnditi'is [or, contrihiiloiies] nf the said conijiany, ■•■.iiiiiiieiiol iUrcction of the MiLst»T of the Uoll.-' ['■»•, Vice-Chancellor ], t huM on the day of ami at any udjoi'innicnl tlini'f A- wilMe-^ mv h.iiid, tlii.-. ilav of 18<; . W < Siyn.d l.y the .said \V. S., in tie iPlix-nce of .1. M.. of, \c. No. 47 . Miiiufrnndiiin nf iijipointiiirnt of a ]>n to nd tn c/niirimi inirttiui of iTtilitiiis or ciintnbuturies. [Kule 47.) In the matter, vVe. The M.LMer of the KolU [o,, \'ic,-('hance!lor J ha> ajii-ii: Mr. H. T., i<{ fic, one of the crmlitors [or, eontrilmtories] of the named com|iaiiy, to act as ( hairman of a meeting; of the cirdilors ["'. ' tnbutoriesj of the caiil lompany, Humnioned hy direction of the said it ni'LEs OF 18r>2. of milil'ira nr '"ii'i'i'ii/loiiV.v \\ \l., Olli.i.il I,i4ni.lat.'i. 1079 AlTKNUrX VI. ,iMUiU t" til'' ^il"'V>' statut<', t.i 1)0 li.lil oil .lav, the ^_ .i.iv ,,(' . 1HK''- Th, Mii'l luritiiis,' Li suininonoil for the puryiose of iworlainin^,' the wiiliri til tl'*' crtilitorH ['>r, contrihutorie.'*] of the fi\\'\ company an to .((!(' "'i'" ^V"' /'"' "■'"'■'' iW'tiiKj riill>'i/\ ; aiiil at -iioh nu-etiii^' llie votes 1 thi; wlitor-i [iji; contributorie.sj may hi- i^Iv.mi eitln-r iM-rsoiuiUy or by ■ lut-lthii ter of the Rolls ['>r, \'ico- ij),i],t,.ll,ir j to art as ehairman "f a niietin;,' "I' the ereilitors [or, iiitril'Utori'.sl nf the alios e-iianied eompany, summonetl hy ailverlisemeit >, uotiio] 'i.iteil the ilay of , ]>^Q , anil lulil on the (lav lit lf^() , at in the iMimty (if , do Mn-l'V iii«'rt t') the saiiljud;,'e the result of Muh meetin;,' .is follows : — Tiiijiiid iiieetiui,' w.ut .ittiiidetl either per-onaliy or l>y proxy, hy or»>ilit(ir?< to whom deht.s ajjuinst the >aid eomjumy have U-en .dinwi-il, lUii'Uitmg ill the whole to the value of £ ["''. ''y «'on- ;ri!'U!iinis ln'Miii:,' in the whole shares i-i the siid eompany, arid •ntilkil rv'speclively, hy the regulations of the company, to the numher of v)ti-!u.', slidiiM not] he adopted and i.iiried into etlVct {(".The result ot ii: V(i;iiij; upon -ikIi ipiestion wii.s jis follows : — ] The iiiiiliniieiiti iiicd iieditors [cr, contTiliulorie.s] voteil in fa\iiur of tin ai'i Iir'i»i!»iil heijii,' .iilopted and c.iri ied into t'lfct ; — .Viinc ot creilit.ir [or, (.■oiitriimuiry]. A'ldrcM. I Nuiulier of Viiles cull- Value iif ilelit feried im oaeh [or, nunilK-T cmitrilmtory of Hharos). hy tho rv^u- lution.s of thu couipany. 1080 RULER OF 18G2. AppKitnix VI. The nndennriitioncd crpditors for, rdntrilintoricR] voted (ij^'aiiist the saii „ propoaftl being adopted ftiid airriod into effect: — Name of crpditor [c»; contributory]. Date ol'i -aid company, of tin- otlu r part. Whcreiw the naid S. H. lia.-* l><-fn "i-tth-d on tin- list of ccmtribiitorii'.f the ^lid company a-t a contrihufory in rc-ipi'ct "f slian'- in tl.es.: contpany. And wlicrca.-* hy an ■ndi-r made l>y llic Ma-ter of thr Rills j V'ici-(,'hancidlor J. dat<'<| the day nf i^ti i-all of X per slian- wa- mail, on :dl tin' i-mitriliiitiirirs if the > eomjKiny, and there i« now due frnm the .sai* tlic sud S. ha« ])rojMisid to |>ay to the m\'u\ ofhcial linuidator the ."um of £ hy way of cumpromisr, and in >.iti-lai lion and di-cliai|;i- nl lln-aiil of i," , and of all liability what.tocvt'r iw a coiitrihntiiry nf iL company. And \vlicna'< the haid nllii-ial lii|uidiitor liavin;,' iiivf-ii.u the alfaiix of the naid S. H., and lielii-vinj^ that niich inmprnimv' will Ijeneficial to the Haid com]iany, hath, in exeixdw of the power tir t laiqKme ^iven to him hy the ahii\e "tatute, .ij^'n-ed tn acce|it lli- -a" m;i,K8 OF 18G2. 1081 OTicB] votfid (^;ainRt tho sail! Number of votes con- Value of debt ' ferrcd on each [or, numlicr conlrihutory of shares]. !■>■ the recu- hitions of the cnni])any. proviu>( irith a rontrihutory. liciuiiliitor of tlu' aliovc-mimedl ,Uf (if tlio conlril'Ut'Tiis of l!u') ,11 til.' list tif ('..ntriliiitori.- 'i] I i,f «liar«'-ititln'--»il| l,y 111.' M».-t.T ..f tlu- U"ll* ! -^ 1 .lav ..f '''*'' • *] II til-' .•.,iilrilnit.iii<-< 'f th.' Mi'lj .1 S. B. to till- sai.l .niiiiuux thej 11. Ami wli.iva'* th.' >ai.l S. 1!. i,hil.)r tlic ."tiiu "1 i' aii.l .U.^charp' "f ih- ^ai.l -uraj v.T 11.-* a .•.>iilill'iitnry ..f tlM-^aid li,ini.lat..r liaviiij,' iuv.-ii-^'U^ that Kiu-h .■..iiipronuv will .•\.'r.Ms»- of tlu' l'"«"' t 'r '^ ,t,. a-m-.l to ua'i-l.l lli> -""'jj 1, ,,1 to the sanrtion of tho Haiti jmlgc, and to the conditions and nj,TCC- *"'■',. i„.r,.iii'iftor I'oiiUiiiifd. Now it I.-* htTtd)y agreed hy ntid U'twccn til,, s^ii'l iMi-tif" hiiri'to : i.t That thi' .-aid ollicial li.iuidat.ir shall, hcfore the iiiiiiis(.'. '11,1 That ujMiii thi.-* jigrci'inciit being Hnnclioned by tlie wiid .jii.l^,'e, the ,'iS 11 siiall within day.s next after such swinction, pay to thu aid ottiiial li'iuiilator the sai.l .sum of £ , and when th.iijto '.^^\p■,l shall 'l" and execute all Huch acts and dewl.i a.s »aay be n«'i'es- arvfur traii-feniii^', or «urr.'nilering and ndeasing, to t.ht' said ofli.ii!l liiitiiJatnr on Ix'half <)f the .-^liil company, or in Ru.-h manner as the .^ai.i ia.KMiiav ilirect, the said .shan-c lield by the .sai.l S. M. in the .s;u.l rom- miiv, ami all claim and demand whats.H-ver which the said S. B. hit's, or mav hav.'. aj,Min-t the miid company in resiH-cl of the .naid shares, prth.' ili^trilmtiitn of the ius.set.s of the said ompany, or otherwi.se how- sicvcr. 3rti That the Miil sum of £ , and the transfer or surremler an. I n.'i,;i.«t ,4 the sai.l shares and interest of tiie .siii.l S. 15., .ts af.>re.said, shall W ;u opted by the said official li'|nidator as, and Ik- deemed and taken to -vo to the .said S. 11, a fuUand .oniplete dischar;,'.' from .all .'allsanil liabiU- !i«;, l.iiiii- anil d.'iuanils what.s.•e^er, which the sai.l c.'mj>any, or the official liiui'liloi thereof, now ha.s or niay hereafter have, or be entitled to, against the -ails. I!., in rt'spect of his beiu^' or bavin;,' been the hobb-r ofthesjii.l ^haK" 'ir ntli.-rwis.', as a cintributory of the siii.l .•omi)any. 4th. Tiiat in ca-f this ogrieiuent shall not Ik.- saiictione.l by the ^lid jBiip' t -hall .■.•as.' ami .leterinine, ami the -ai.l ollicial li,|ui.lat.>r ami the said ."^. P. shall h>- ivmitted t.i theii original right.s with renpect to each rikr, .IS if this ugreeineiit had not l)oon ent«Tt'»l inio. 5th. That in .as.' this agrcment shall be •^ancli.mi'.l by the sai.l ju.lge, I ind thi' saiil S. H. sluiH ii.,t in all nsjx-it.s perform the same on his j.art, i the ollicial li(|ui(lat'ir shall be at liberty, with tlu- sanction of the said 1 pii.-, and witli.iMt n.iti.e to the S4iid S. H., to enforce the pertonnanci- thf.'- if, r, with the like sim'tion, to give notice to the s;u.l S. II., that he ilandoiis this af;roenienl, whereuiKui the same shall cease and tletennine, indthe vai'l idlici.d li.pii.lat.ir shall be entitled t.i proceed against the iaidS. B. t" .•nfiirc jayment of the said sum of £ , or so much thereof ii> .•ihall then ninaiii due and unpai.l, a-s if this agreement ha.l not i«n cnti-n-l iiiti>. Appkndix VI. Pormn. ^Mtiirss t.i the ^iguatun-.s "j [cfthf^dl!. I>. H. ami S. II., ' ('. 1).. of &c. ) H. r. 11., Official l.i(|ui.lator. S. II. Nf* M M'-iiMnvidum of junction ofjmlye to n' at ovi'-naincil coiMiiaiiv, niiiiii' [slr(is((.iitii)^' an action at law [or, suit in tmiity), in Un. n;,!, ami on iK-half of tin- saiil conipany, aj,'ainst [iitiiniiiie hook. [Uule 02.] in tlif niattt r, t.*^i\ Aj>i)oaraiRf book. Ditte when ap- pearance entered. Piuty's Name. Wlictlier If he .iintcanf If lie apix'.xrs creditor ill iKTsoii, iiift l.y a suliiitor, or con- aililri'Ht fur his MoliciUir's trit)UtlillCl- t'u's aiMrc.vs. .Viiioiint 01 .lel.t [.«•, nuiiilicroi slums 1. ikfs^T; No. f)-l. Sciinnoim for ptrsontt to uttiinl ot ch, H. 115.] In ("lianitiy. In till' matter, iVc. A. B., &c., and K. F., iin- lifn-hy Beverally HiunnioiuMl Ui .iltcinl .it chaniltiTs of tlu' Miuxti-r of the IIjiIU [or, Vict-Clnuitullor ]. Rolls Vanl, Ciianci-ry Lnni- [or. No. , Lincoln'-* luii], i county of Middlf.Hr.x, on day of 18(j , at thi-dcrtk in the no tl: linuiilator [or, of W. D., uf tic], for the purpuse uf procccdnir;-' ilirccti the Marttvr of the RolU [or, the Miid N'ice-ChanccUorJ to be taken 1' me in the above matter. [.\nd the wiid A. H. in hereby reiiuireil t.i 1 with him and produce, at the time and jdace afoa-said, a cert;iin ni'LEs OF 1802. 1083 , n. Ukiirif" M>i>n''»(''] '^"'1 "^1 "'^'"•'" ''""ks, pap<'i-H, .looovi> i.'„nu8. miiu'il coiiipiiny.] Datr.l this tliiy of 180 . G. H. <;iiief Clerk. Thi'' summ'in-( Wits taken out 1>y Mex-• of the direetions jjiven to me liy the ^[,^^fe^ of tlie Rolls r ViiY-Cli.iinelKir |, I in leby ceitiiy that \l. \\ 11., the olljc iiil liiiiiil.itor of the ul)ove-namcil coiujiany, hat imssed his final arcount as ish I'ttit^^i'il li'l'ii'liitor, and that the hahuii'e of £ thereby eertitied lolx'ilui' ti' [I'r, I'loiu] the said otlii-ial liiiuidator has liccu j.aiil in the imuimr directed hy the order dati'd the day of 180 . AmltliiU the affairs of the sjiid company have been completely wound np. The evidence jinKluced, &C. Dated this Jav of 180 . IJ. IL, Chief Clerk. Ai>iiriived the ) .Liv.f 18(5 . J N... r»G, 'Jrdrr to disiolve the compitny. [Rule CO.] Tlii' Master of the Rolls [or, J , the Vice-Chancellor ] ^ day of 180 . ,it diaiiil^erv. I In the matter, iiiil company be di>solvi'd, as from this ihiy I ' I8G , and that the reco^'uijuince dated the day of IHt) , enteix'd into by the said oflicial liiiuidator, together with ^.B. aiul T. P., his .sureties, W vaoiteil. WK.sriiLliY, C. John Romii.ly, M. R. RiLllD. T. KlNI)KHSI,EV, V.-C. John Stiakt, V'.-C. W. P. Wood, V.-C. 1084 ArrsHDix VI. RULKS OF 18f)8. OHDKU AND UUI-KS l\ CHANCKKV ISSUKI) I'URSUAN'T TO "TlIK COM I'A NIKS ACT, 18G7." OKDKIt OK CoriiT. Snturday, Ihf 2\ft (Uiy of Munli, iHd^, „» umnided I >y order cf 2n(l Atiirrlt, \HI\i) (»). The rij^lit liiiiiuialilf Hii^^li MiuCiiliiu.nt I'.an.n Cuiriii-, I.,,i( (livat Hiitiiiii. with tlic lulvico and ((Hiscnt of tlic ij^lit lioiKnalili' Jolin Konl Uoiiiilly, Mii>lfr of tlif Kolls, tlic lu.iKiralilc the Via-Cluii- < I'llor Sir John Stuiirt, iiml thi- lioiunaMc iIk; ViiL-Cliuna Ilor Sir Ilidmril Miilins, (h)th hon-hy, in jiursuancr and cxtTUtion of tlie |m.\vci> givin tci hint liy " Thi- Conii'iinii's Act, IHfiT," and of all other imwcrs mni antlioritie.s lualilin^' him in that hehulf, onlt-r and dirtct in nianmr followin}; ; — Petition for injirftji;/ u/i (r). 1. Kvury jxtition which .-hall, after this order eonieH into o]HTtttii)ii, be prest-nted ft>r the winding; up of any conii>uny hy the Court, or milijcct to the .swjM-rvi-iion of tlie Court, and all notices, alhdavits, diid otlicr pro- ceedings under Biuh ]>etition, shall' he intituled in the matter of "'The ConijianieH Aetit, lh(!2 and ls(j7,"aniich jK-tition -hall relate. ;ion f"r I'rlition to ridiin- riipital (x). 2. Every ]«tition foi an order ronfirndn;,' a t*])eiial re^(/lutiull n ri'ducin^' the ra|iital of a (onijumy, and all noticeH, utiidavits, ami oth jiroeeedinV"* under su. h jietition. shall Ik- intituled in the matter of '• T' <'ouij'aides Aet, IHtj?,' and of ihe comiiany in tiuestiuii. W. No sucli jK-titioii a-s mentioned in the 2nd rule of this order >liall placed in tlie list of j'etitions liy the secretary of the l^ord Cliaiuiliia •- from the tiling; of sui h certitieate ji.- i> iii« utidiud in tl 1 -llh rule of thi- order. •1. When any such jutitioM uh hist afoit-miid ha- l)een pre.siiitiHl, a]] cation may he nuule, rj- jmrtf hy siimnion!* in ehamhers, to tlio juil^'c whose Court the jH-tition is attached, f(;r nrilii.^_ t" ln' taken for settling the list of creditors entithd to olijett til till- I'W posriiiUtl nh auietuled. (!■) AuU. ).. ()54. Cnl. 01 Mil rule I. (x) See tkct of 1807, § H '< 'ff. ""« |.p. 402 et ««/• ^'<'' •'''""• ""■ ""^ ' 1.H77, aiUt, p. 102». Rui.r.s OF 1808. 1086 ^^1Kl) I'll USl' ANT TO 1HG7." imciided liy order of 2nd ini Cairns, I.unl llij;li('iiaii isfiil of tlu' ii^;lil liiiiiDi'iilik' ■ hoiutralili' tlif Viti-Chiiir VicL-C'liiUici Uui Sir \\k\uv\ ,i()ii of the jiowi'D* givfii td of nil other iicwcrv aii-i rtlt'V ami ilirttt in iiiiiiiiur xlcr Klines into oj)eruliiiii, k j y l.y the Court, or sulijcct to ] \'», "iilhdiivits imd ntli.r ^m- ' iili'il in the niatt.r of -The the coiniiany to which i in.nti«iiinl ni tin ;,i.l ha> heill {ire.sintwl, alfli" in cluunhi IS, to the juaj;i- U' i,v. tioUH a.- to the l.n.ar.lm|J .utill.a to ohjecl to the vn ,..„ tix the date Nvitli r.l\rino ude out, Jiiuisuanttethrny .av.eitherat thesametnm•" .4»^. )'• (i54. or,i. oi '.sea veftctot 1807. §Urt»<7' 02 et seq. S^-o, ^U". l'"- '^ ' nvuil^. 'T* '"' •''''''^" lliiiik li'. K'^'c '*'"■'' din'ctions as ar« mentioned in ApfknuixJ^I. ) . "ith and fitli rules of lliif* order. The onler upon such summons may , ■ ,li,, f,„.|i, S',). 1 in till' >elii(lulc hereto, with such variations as tht; iiiin-^taiMes of the case may reiiuire. f, Niitiie of the presentation of the petition shall \>c puldi^lied at such tinio.", iiiid in -well newspa]H'rt as the judj,'e .shall direet, so that tho first ■ tfrtiiiu of such notice l)e made not less tium one calendar montli lieforu th- ilav iif tliu date fixed as mentioned in thu 4th rule of this onhir. y sonn; dlficr i>r otficers of the company c(.m|ietent to make the .s.mie, verifying a list ('nntainiii^; the names and addresses of the creditors of ijiu company at the 'lite tixed as mentioned in the llh rule of this order, and the amoi.nt.s ilae te tlani icspeclively, and leave the said li-t and an olhce copy of such itiilavil, at the chamliors of the judKC 7. Tin: porson niakin;,' such athdavit shall state therein his helief that Moll Hiiuss, ini|H-(:t and Uiko extmcts from the .same on payment of the >jmof line fliillinj; (:). 9. Till! tomiany shall, within hcvi-ii days after the tiling* of such ifid.ivit, or .»ui h further time as tin- jud(;e may allow, send to each onslilor whii^e name is entered in the sjiid list, a notice stating' the amount oflhe iifuiKised reduction of CiipiUd, and the amount of the, debt for which inch iniiitiir is eiiteii'd in the said list, and the time such time to he fiieil I'V the jud;;e) wiliiiii which, if he claims to lie a creditor for a larj,'er laiouni, ii« must send in his name and addre.s.s, and the iwitticulars of his lieUor il.iiiii, and the name and aildre^.s of his solicitor (if any) to the iolicit.jr 'j; tile coiniiany ; and such notice shall he sent throu^di the post ii!A|m'Iwid letter luhlre-ssud to each crttlitor at his last known adilress or plaoi Iif ;i1«k1c, and may he in the form or to the clfect of the form No. 4, M f"r!li 111 ihe schcduh; hereto, with .•uch variation, as the circumstances otthecw may reipuix'. 10. N'.itii-.- (if till' list of creditors 'shall, after the filing of the attidavil nwaliiiu- 1 111 llu' Gth of these rules, ho puldished at such times, and in iiKiiuiw<|,aiiers, as the jiulce shall direct. Kvery such notice shall state tlie am.iUiit ol' the iirojMi.sL'd rrduction of capital, and the jdacis where the jfore^iid list of creditors may ^le insiHJctetl, and the time witliin which I .V w the 0<:Qtral Office, ma 42 & «Vk(. c. 78. (2) AnU, p. 10S4, note (u). 1086 RULES OK 18()8. Appirdix VI. ctvditorH of tin- ••(ini|>;uiy wlio nn' imt iiitiTid on the Niiil list ainl ilcsiri.ii.s of liriiiK' 'iitiTi'il tluiiin, iiin.si mihI in tlicii nuiucs ainl ^ulilnssis and the iMirlicularx of tlicir dtliU or cliiiniH, and tin- nanii's kikI iiil(lrid (if any') to till" snliriiuf of tin- icini|iaMy ; ami siuli iiutj'. may In- in tlii> lonu No. f>, .^I't Inith in tlic said si licdulc Ihki,,, witli ^uih variation.-* iw tlif circunistunrcs of the ca.-*!- may ni|nin'. I 1. Tlic mli tinu' as the judp' shiill dimt tile in till- MJlii I' iif till' ili'iks of ivri.rds and wiit.s ■..) an allid.ivit luadr livtlie iMi-Min to wlmm tin- |>artiindar« of didits or clainm an' hy ttnrli iioticis hh Mr nuniioni'd in tin- !»tli and l"'tli rnlrs i,i tliis mdir, rn|uiii'd In lie ,,1,1 in, sl.itiii),' till' U'snll of -urli notii'* n.siicitividy, and Vfnlyiii;,' .1 list cim. taininK' tlii' ininu-.-* and addn-fwoH of tliu jH'i-sunsi (if lUiy), wlm shall huvi- H»>nt in till' ])arlii'ulai> of tlii'ir dfliU or rlainis in jmisnani u of suih nu\u■^^•^ n'sjH'ilivrly, and tin- amounts uf f.ucli drills or 1 laims, and mhih' ciimiii'tint otlici-r or ollici-rx of the comiiany Hliall join in -mh allid.ivit, .iinj sli.ijl in smli list distini:uish whirh (if any of smli dfhls andilaiiiis aiv wlmllv i,y a.-* to any and \sliat pail tlnrrof, adniillid liy tlu' romjiiiny, and wlii.h ;if aiiy) of HUch di-lits and ilaims aiv wholly, or a.-* to any and what iiart tlicrt'of, disputed l>y the << .ipany. Smh aliidavil may !«• in the f,,iij| No. y the company at it.-i full amount, then, and in iviiv such ca.i«', unless the conipanv are willing to sit ajiart and a]'piiipii.it, jn Buch manner as the jud;.;i' shall direct the full amount of such ihlit i.r claim, the comjiany shall, if the juil^,'e think lit so to direct, s. nd tn thf creditor a notii" that he is rei|uiri'd to come in and judvc sii. ii dilit < r claim, or such jiart thei-eof a.s is not admitted hy the lomp.iny, hy a il,i. to he therein named, l>l■in^; not Icvs than four dear days alu i' -:iili nulii' and hi'in^,' the time ajipointed hy the judj^e for adjudicjilinj,' u]m)ii siu dehts and 1 l.iinis, and such notice shall he siiit in tlii' niamii r :iuiitiuni in the !Mh rule of thi.s onler, and m.iy he in the fonii .N'o. 7, in llr Hclnilule Jjereto, with Hiich v.iriatioim iw tin; circumsUmccH of tlie ciutc iiui reprialo, und the sunouiit of wliidi ha< iv been fixed hy iiii|uiry and adjudication a.s last aforcuiid ; and shall slicni whiidi of thl- civdiiorsi have consented in wriliii},' to the proposed iidiwlum and tin- toLid amount of the debt« due to them, and the total aiiioiiut («) Now the Central Office, see antt, p. 1085, note (y). i.it IIUI.ES 01- IHCtH. 1087 im th«> Kiiiil list, and aiv tln'ir liiiiui's nii4 aililnnsis, il ihc iiiiiiU'H uiul addrtwrs 1 oiii|>aiiy ; im the ill and lilnVr Ml.ll.l.ht T ,1 l,y tlif tniiiiMiiy, hy ad.iv 1- . li'iir days ait. r -'.'.ini'^'>ish the „. .•.imimnv aiv nmUhi^ to .-.tj „„„ (if '"'y)^>'^' aiiioui.l>'n ,ati..n in niann.r l>riMih'l I'.Vl l.uins (if any) tl'^f">l '"""""* ,r such iv« the ootupny .'i«| ,1,.. aim.unt of whiil. J;^'^ ;>i .1 ur..n'.said ; an.l shall -h"*j i,,.- 1., th.' rroposfil n'du.ti.'".| ,,,u, ami the total anmunt HI r, p. 1085, note (v). thf ilehti* "I" le.1 hy tl [hiiiiis t.lip iirtyiiu'iit of which ha.s hct'ii r. ruriil in nuinmr ]ir«>- Appkwdix VI. Till aa .hu' iir i: i.'.ile till' 11' said I'tth i«*'>'lii>>i, ami tin; iicrxuiiH t.) nr liy wliniii tiu' saiiiu i;hunii'*'t'" »«'';ui-rt. !■ of the l{olln, a.-* the ihm' may h.-, itatiii;,' th.it th.' .irtiti- .!! a liii i-i!,' li,is |.,rn til.d and hocoiiir himliii^ .f tl |i; IWforu thf hearing; i»f the iK'titimi, iioti.Ts .-tatiiij^ the .lay on whi.h ill,' s,imi> is al>l>ointi'tl to he In'aiil nhall hi- ]>iildis|irleht or claim has net, btf.jri' the hi'arinj,' of th.- petiti.ni, been discharged or d.teniiiiied, or Imth mumI in iiiaiiiur proviiled hy th.- I llh Hectimi of the Haid in't, ami who lu^iiiit, hiliiii' the hearing', si^^iied a cmsent to the jirojxise.l reduction of cafiiUil, niav, if he think tit, iiiion K'iviiij,' tw.. dear days' noti.c t.i the wliciliir I'f the (•..imiiany .d his intention m) to d.i, appear at the heariiij,' of thc|KUtioii aii'l oppiwe the appli'-ation. IS. Where a cie.litor who apjiears at the heariii;.; uii.ler the last Jire- loiiiy rule, is a iTeditor the full amniuit of wIid.ho .lel.t ..r claim ir. n.it a.liii;tti'il hy tln' .■oiiipaiiy, an.l the validity of kucIi deht or claim ha.s not l«n iii'|uired into and adju.licate.l upon iiiid.'r .section 1 t of the sai.l a.'f, thecMjt.s oluii.l occitsiuiied hy his apinarunce kIkiU he dealt with as to the I' irt shall seem jiist, hut in all other ciuh-s n cix-ditor appearing,' uml.r the Ut liri'i'dini; lul.' sh.ill he entitle. 1 to the cost.s of siith .ippearatice, uiil.-ss i!ic Ci'url sh.ill he .d" .ipiiii.ni that in the circumstance.-* uf the jiarliciilar a J'jlits or ilaiins .if any cre.litors wli.i do not consent to the prop.ised r-luctim ; and the further heariii;,' of th.' petiti.ni may, if the Court shall tiiiiik tit, lie .idjourned for the piirpo-e .if allowing,' any stejis to he taken *;!li rcl'ir.iice to the securiiij,' in manner aforesaid the p.iynieiit of siuh i.r .1, Hill.'' iO. WhiTi' the Court makes an onler conllrminj^ a reduction, such order (Li! *lu; K'lvc .lire, lions m w ,.f tl hat niatiiier, ami in w ll.lt neWsli.iiier^, an.l at iiii.s, iiiitio' of the ii'^'i.st ration ot the oi.ler an ; lleWsp.i] .1 of such minute as m'ntiiiik'.l in tli.' l.^jlh section .>f "The C.impanies Act, 1S07," is to h.' liulilirds "ami re.lu.e.l " Wtt.ihf (U'I'Iii.mI part of the name of the company as mentioned in the lulLfvctioii iif the .,ame act. Feet. ^1. Solicitors shall lie entitled to chai>,'e and he all.)Wed for duties pei- f rani under "The Companies Act, lHU7,"thc same fees aa they shall (a) i^ tiHU, i>. 1084, note (u). 108H III)], us OK IHCjH. Ai-i-itNMx VI. for thf timt> lH'in^» Jm* onfitlod to « luirjjc uikI Im' hIIdwhI for lln^ likr ilmin IKTfnrincil \iinliT "Till- ('uiiii);i.iiii's All, 1H(5"2," uiilinii the I'iMirl ur iudL'n Khali t>tliiT«iM! .H|MMiully tlirfrl. 22. Till' winie (cvn of ('diirt nfmll In- puiil in nlatinn to ipnidcdiniM in Clmiucrv utiilir " The Ciniiiiaiiii-M Act, 1H(J7,"iih clmll I'ui ih.- liiiu' liim -1,^ jiuvul>li' ill n'latiiMi toliki- |ir<)tc(iliii^;H in ('liiiini'ry umlor •' 'P o ('uiniiaiiiin All, IHti'J," iiiiil hIiuII Im! ci)llictnl liy htamps in nuinni'i- ]iiivii|.il l.y the jfiucnil onlcfH til llic Ciiurt. Oeiieral dirttlionn, 2'.i. Tfir ^;iiicriil onK-rs and jiractiri' of tlK^Cnml, iiu'Iuiliiij^ tin; tmibuof Jl^)Cl't■llin^{ ami practice in tin* jmiIul-k' cliaiiilu th, shall, in ciLHcs ndt iinividid for by " Tlu! CViin|mniri« Act, 1807," i)r tlnw rulun, ho far iw .-.luli (uiliit and |>nii'li(-(> aru a|i|ili('ulil(! and not iiii'iniNi^triil witli the said act (ir with tlii-sf ruliM, apply Iti 1 procicdi!ij,'H in the Court of C'li.iiici ry umlir the Hikitl act. Ul. Till- power of the Conit and of llic judj^'o sittin^^ in cIimiuIk is to enlarge or aliridj^e the time for doin;^ any a> t or taking; any piiMnilin^i^ to juijourn or review any procL•t'din^;, and to j,'ive any direction as tn the (•ourwe of jtroteediii)^, hliall l»e the s.mie in proccnlin^"* lUKler "Tlii'Cnia. poniei Act, 1867," ua iii proceedinj^M under llie ordinary juritdictiuii nf the ( 'ourt (art). Commmremnil of order. 25. Tlii.H onler hIuiII take effect and come into operation on tin- ir)tli(iay of Ai>ril, iHtJH, and hliall apjily to all pnn eediii;,'- in < 'liaiiceiy uiulcr tlio naid act, whether coniniencol l)efore or alter that day, l)Ute\ery innocdiiijf Uiken under the Miid act l.eiore that day nliall have the suiiie validity a.i it would Luvc liud if tbiji order had not Ineii inade InltTj^rtUxlxim. 2(). The general interpretation clause of the toiiMdidatrd j^eiuial \ t'l IhliS. lOH'J TIIK sclll.hl l,K. ApPKHi>rx VI. Nil, I. Foriii I'f ortlri; [IJuifl.J (III till' iii.ilti r (if TIk- 1^1,. „,,, . ^ ' '"iiipiiiv, l.iiiiitr.l ami Vir-l'luiK.llMiJ Sir ill i l!.-iliiiv.| ; aixl in tin- iiiutt.T ..( " 'I'lii' liumWrn. ( (•..in|Miui,.s A. I. 1H.;7." l>ii til'' iil'I'li' •'•'"" "' ''"■ l"'li>>"i"'''' !•>• Kiiiiuiion-*, tlat«il , ui iiiKiii luaiiii;,' till' ■iiilicilnr I'm- tli<' pclitioiiiT'*, ninl on tcii.lin;.' tin- |j,nt,,„i i.n ill'' ''••'.^' "'' ' |"'l'''ir.'.l mhIm tli.' I{i'.,'lit L'linUt' til.' I.iil'l llirlli Cli.iii'.'Il.T ..I' Civ.il I'.iituii [•'<• Matt. -I >>{ llir y«l it i" iinl''n'tl that an iii'Hiirv Lr iiiaiji' w liat an- lln' .li'l't-, ilaiiu-. cil lialiililii'* "f ""' i>tr<'> till;,' llir -aiil rc'inpaiiy mi tjic .lav ..I' |,s(; , iiU'l that ni'tii'i' ..f" tin' ]'ii'-> iilali.iii ..t" tli.' -ai.l ii.'tili.tn l«in It at tli.- . IianilKrx ..f thf jii.l;,'f "ii alclnri- ihv .lay ..f nil.'.H of lliw unkr, uml ihi iiirt. X... 2. (S,',' lUilf :,.] In thf iiiitt.r ..f Til.' ('..nipany, laiiiitf.l aii.l l{.'. III. I'll ; anM in tli.' aiutttT .>f " Thf (.'.inipanifs A. t, 1 ^i'inti'.l to [thf Lml ( 'ham-f Ihir, «'/• :r .fllu- IJ.ill'i], an. I !•* ii.>w ]» ii.lin;^' ; an. I that tli.' li'-t ..f crfilitiirs of •M\Mi\ is t.i lif nia.lf I'Ut a-i fill' tli>' .lay ..f , I s»; . i:i!t. iif [A>;.'nt-< f.n' A. ami I'.., ..f ]. Si.Iiiit.>r-» t.) thf ...nipany. .N". 3. Aifi'l'irit i't/-i/i/i/i;/ /(.i:i. (Ku).' 7.) i: rii:iin.'i'n'. Ill thf inatt.r nf Thf ( '.niip.iny, l.iniiti.l .iii.l ISiilii. fil ; aii.l in Jlio inattft' ..f " The Cuiiipanif> A.'t, l^tJT." ■ i B, iif, itc, niakf uath aii'l -"ay as f.>ll..\vs : — • Tk' paiier writing,' uo>v piodiu-ftl ami shuwn t.. ni.-, and niaik.-.l with ISi^tcr A., c.iiitains a list of tlf crf.liii.i'-. nf au'l pfi>iin^ luuinj,' . laiim iBit;:.; sii.l cuiiipaiiy ..u thf "l.iy nf , IStJ th.- datf |i!eil'ytk' onU-r in this nuittiT, ilat.-.l ), toj^ellK-r with thf iv if'.v. .iililrossi-s, ami the natur.' an. I aiii.innl i>f tlnii' rf^iH.'ii\.- .l.-ht. '■bi:, aad such list i.^, to thf U-.1 .>f my knuwU.ljjf, infuria,iti"U, aiul u. 4 .V lO'.lO Kl'M-.s oi IHoH. Al'l'KNDIX VI. iH'lii'f, a tnii- ami acinirutc li->t of .-mli i-i'i'(littir> iiml ihtsi.h.s Ikivih' dn on till' (l.iv af(irc>>i»i(l. •2. To tlu" Im-.>1 ol my kiiowlctl;.! .iii.l lu'litf tlniv \\.i.-< ii(>t, at tin- ,| ftfon-siid, any cU'bt or claim wliicli, il'siuli date wit'.' llit: (iiiimifiictimij till' wimliii^' iij> of tile >ai .-.lid oomi>aMy oIIk r lli.iii and ixnj.t tlic (lfl)t,s .s»'t Initli in tin- s liiil. 1 am t '.ial)U'd {<• niakf tins staU-mcnt from fads witliin my knowIiM ixi tlu' ol till- .sjiid c'i.ni])any, and fumi infoiinaliim cli ami thf I'nok-^, docununl.-*, and pajxi^uf tlics comjtiiny. Swi.lll, itc. l.i-gt of Creditors rrfirrul to iu thn hi^t Form. A. In till- niattiT, dc. This li>l of oruililors inarknl A. wa^ jirt)du-i'd and .-luwn to A. I'., ,i i.s the same list ofcrcdilor« a« is n-fern-d to in liin iitlidavil.swoin Kfniv i tliis day of . IHfi . Naiueo, AiidrcHNCK, ;iiiil Di'.si Ti|itioii of tlic Creditors. Nature (if Debt or <'I;iiiii. I Am"iint 111" Del.t in Ckiiii. No. 1. [Sii- Uulc 9.] In th.' niatlanii-s Ait, IHdT." To Mr. Vou an- niiui'.tti'd to tako notice that a jn-tition ha.i lurn prcv t.> till- ( 'o\irt of ( liaiic* I y to i onlirm a special resolution of tia: aluvr > jKiny, for reiln.inf,' its cajiiljil to i" , and tliat in tlu- list nt pir admitted liy the company, to ha\e hc.-n i.n tl'« day of , iinl of till- conn>any, yoiir nana- is enti-red as a cridilor [heiv .state llie .mi' of till' d 'it or nature of the eluiinj ll _\on ( laini to have In-en ou the last nuiitioneil day a iTciUtur t lar^^cr amount than is staled alnive, yon must, on or Ifcfoiv the ilay of , Kiid in the iiarticnlarn of viair claim, and the mm atldicsK of your ndicitor (if an\ ), to the undi-rsi^'mtl, at d«lanlt of \oiir so lllltl JH'lMlll.S luiVlll;; I'llillH jUthc piwccilinfjs uihUt tin- jiliovc a])jilicali()n to reduce the capital of tho An-Esuix VI. comiuLV be treated iis correct^. _ ^ " - ^^^_^_ Uatul this ilav of A. R, Solicitor for tluf sitiil company. N (/)'; hi -it Form. No. :,. [Sw Uuli! 10.] Ill till' iiiiittir of the Coinpaii>, Liiiiilfil jiiul lU'fhtiod ; and in thf matter of " Tin- (\niiimnit's Act, ISCT." Xuticc is hcrrl>)' f,'ivon, that ii pttiliuii l\as been prcwiittd to tin- Oonii ofihanciry for cor'".rnung a resolution of the above company, for nducin^^ it!a}iit.il from i-' to i," . A list of the |>ci-sou.-- a, "U |iayiiuul of tlif i hait,'i' of one >liilling. .\!i} |ior>Mii uhi) claims to liave l>e«n on the liu^t-mentioned day and still to W a iTi'ilitor of tho company, and >vho is not entcri'd on tht- .said list 111(1 t "f 1' ■ '" i^ tbedav of ,.■..:.» k , .editor [heiv slate the ,u '<*• t mentioned day a .reditoi ii,-t, oil or befon; the .r y.air chum, and Ih.' imi.- '"« ! undeisigiHil, at ,„ the list of cwlil-'n «'ll Ko. <;. [Rule 11.] In Chancery. Ill the matter of The Company, Limited and Reduced ; and in the matter of " The I'oinivames Act, 1HG7." ^^i' IV, of, ^e. [the secivtary of the Raid company], H. F., of, i^c [tin; * iiiit'ir r,f the mud comjuiny], and A. li., of, (Sec. [the managing teor (if the said com]>any], severally make oath and Kiy a.s fidlows :-- I. thnsfiul 0. 1). for myself, s.iy as follows ; — ' '>'"'■ "II the day of , IhtJ , in the nianiier Ik u- Mfvr imiitiiiiied, serve a tnie copy of the notiee now jinxlm i.l and "I**!! to iiie, ntid marked R, ui«in eaeh of tlie rehpeetive p» ihons whose Wue!", ad(irv>ses, and riillo\v> : — ,, . . , 3. A tr.ii- ("iiv I'f till' i)i>ti(i' now iimh1u(1'<1 ainl slinun |,, i,,,. ..i,. If nctlCC l. . iiuilcr rule 10. niaikiil ( ., has apjifarni ;n thr ot Uh' day n| 1 '-t; . ilic of till' fV writiiiu' n^w pinilui'iil ami -li^un in m,., nn, markcii !>., .set furtli a ii-t d' ail i laiiu-, llir iiaiticiilais nf \vlii,|i li.n,. 1,.,| sent in t(i nif jnir-u.nit t.) tin- .-aiil Notin' l!. now ]iiii(lu(ii| ami >liii«ii ti iiK' I'y in'ison-- ilaiiiiin;^ to to i nijitois ol tln' said I'oiiiiMiiv fni larp- ninoiiiit- than an' statid in thr li>t of ( ndilur- mailed .\., ivl.irnl id n the atlid.ivit of , lil.cl "II till' day 1io\mi tn m,., maikn' Miller rule 1(1. ''^•' '^'■t forth a li-t of ail claini-. thr particulars nl wlnrh have l.nnsiiit ji to nil' ]inrsiifint to tin- notice ntiiitd to in thr tliinl ]iaia:.'ra|ili i.f tlii: illlitlavit \>\ pel-son- claiiiiin.,' to he ii'i'ilitoi's of the said rrinjMiiy uu t!k tlay of , l^i! , not a]i]M.;\rin;,' on the said li-t uf iri'ditoi's, marked A., ami who claimed to lie eiitereil theieini. .\iid we. (' I>. and \. I?., for nnrselves, s,iy as l''ill,i\v< ■ — (). We have in the hist part of the said jiapev wiitiiu, iii.uki'l |i. ■:■ « produced and sliouii to lis;, ami alsn in the tii-st jiail of tlie >aiil |i:i|'.i wriliiiu', maiked !•",. also pjoiluced and slmwii to ns\ respectivi Iv set Initi siich of the saiil dehts and claims as are admitted hy the sai.l (i.injiai)y ti he due wholly or ill i«iri, ami how much is adiiiitie.l to hr diir m nspi' of siich of the s.'ime dehts ami claims n-spei tivi'ly as arc imt whnKi udmitted. 7. W'i- liave. in the seeoml part of eaih of tin; .said jiapcr wiitiii;!' nuiike.'. 1>. and K.,set foilii sii'h of the .-aid dehts ami claims a« an wlidh disputed hy the said oniipany. ^. In the said K.thilnts 1), and K. are dislin;,'uis]ied su.li ..f liu' dilitH the full amounts whereof are juoixised to he set apart ami .;pi.n)iiii.itiil ii hUch manner as the jud;.;i' sh.dl direct. Swiiiii, iVc. I Rule 11.) (Rule 11.] K'hihit IK, I'/'iT-il Id ill tif liis(-moitiijii''I iifiinii. 1>. Tn the nrut. r, I'^c LiH of deht.s ami claims of whivh the particuhirs have Ihcii niU in t( hy Jiersun.S elaiminj^ to lie creditors of the .-aid C'llll'illiV I'll lar'jer (ihkiuuU than aru sUiti'd in the li-t of creditors made eiil I'V t' . company. This paper writing;, marked I)., was proiluc'd an 1 -li"' C. 1)., K. F., and A. I!., respectively, and is the .siiiif * in referred to in their allidavit bworu Kf .ic mc icu dav nf , ISG . .\. v., vV'. IS. i^tivi t, ill ilic riiiiiilv ami m! 111,. ,ln, k i'l «( I'lillow^ : — lui imI iiiid sh'iuii 1,, m,.^ ,,1^,1 till' .lay n|' , I8(i . iVr "iiicfil ami >liM\vii In iii,.^ ,, 1 |iai1ii-iilars nf wlii.li |i;n,. 1,,,;, !. now ]ii'iMlu(til an. I .slmwn in tilt' saiil riiiniMiiv fni h\f:r.s markcil A., ivl. nul id m 'la>' 111' , i'-i; . Urcd ail'l -linw 11 In iiir, maikiil ars i<\' \\ liirh !i:i\r l.mi >, m in II tiif tliinl paraL'ia|iii i.f this - lit' llu' saiil I'l'iiiiMiiy uu the !■_' (HI tlic >aiil li-t vi iri'ililm^, llu/li'oii. say a-i I'ljlows : — mpiT writiii;,', inarkul 1». <. v (' liixt juirt of till' >aiil |>ai r rn to us\ ri's[n'i-tivilv M't jnitii littfd liy ihr -ai.l cniuiiiiiiy to j ailniitti'il t" 111- ilif 111 1. -]'i'^t J -|icrti\i'ly a- ale Ui't wiiiillyj li of till! sail] jiapcr wniiii,':', ; 1 ilulit.s ami I'laiiii.-a- aiv wholly j linj,'ui>lu'il ^ui'li i.r the il'l't'', I set aiuul ami a)i|iio|iiiatiil iaj ■imnlioit')} ii(Jiiliivii. lill.KS ()|- 1S(I8. FiiisT Paiit. Um». ' I>;,rtinilars Ai.lrcws. .wl ,,,■ |,,.|,t Ca-ilitura. : Aniniiiit claiiiiL-il. Aiiioiiiit I i)i;lits iirii]in,sf»i ailmiltoil by |t() l>c set aiuirt ami tlie i'i>iii]i(iny 1 a|ijiiniiriat<.| in tn lie owing ti) full althiiii'.'li Crcilitiir. j disjaiteil. Skccnh I'vitr. Ikliti) and lUtiiits uhollij ilujJitltil hii the compamj. .\',iim'«, Aii'lrosso.'*, jn>l l'i.-»'riptiims 01 (Liiiiutnls. r.'irtliidiir" i)f Claim. Aiiiniint L'lailiicd, Dfljts iirojMiaeil to bo I net aiHirt imd I aiiiiriijiriateil in full although dispattid. AlPKSDIX Vi. FullllS. Ill tlu' iiiatt'f, i.*^'-'- lii.-ulars liavr lui-i! miiI m td| lors of thi' .-aid c-iui'aiiy I'tI of creditors mad.j tml liy ll j| )., was produLi'd an 1 -Iif (•.siifiiivuly, and i-- llf -n'"' tlidavit hwom liifi'ii' iin- ll'" X. v., v^C Exhitiit K., reftrrnl ht in tht hut alHilnvit. E. Ill the matter, &c. I.K.- nf ,l,.|,t^ and ehiiiii.s of wlii ll the jiartieular.s have heeii .-^nit in '^'^- hy Ju'iNou.-' elainiiii^ to hi.- ereditoi-s of the eoiniianv, aiid 'vviitcred on the li>t of eivditois made mil l;v the coni[iany. Thi^ liai.tr writing, ni.iike.l K., was piodiioed and shown t.. ('. 1)., K. F., and A. 1'., res|H'.tiveIy, and is the same lis is ivfened to in th.ir iithdavit, swoin hefori' me, thi> day of , 180 . X. v., . a.s in K.\liil)it 1).] SkiON!) 1'aut. [Same m* in Exliil'it 1).] NoTR. — The names iiiv to lie insfrtfil jiliiliiliitically. No. 7. [Set- llule 1;>.J III the matUT nt Tlu' Conii>am, I.iniiU'recludcd from ohjectinj; to tlu; j)roposeii: £ to £ . I- dire( ted to he heard 1 d' iv [tlic Vi.c Chancellor ] w [the Ma.stev of th.- RoIl.>]. on the l'^ of , IHG . I', and L). of (Agents lor H. .nid 1". of ]. Solicitopj for the company. Caiiins, (". romili.y, m.h. .Ions Stl'ai^t, V.C, Run Mil) Mamns, V.C. 1 IKE A8SUUANCK CUMl-ANIKS ACT, 1870. ioi»r» No. VII. THE L!FK ASSU RANCH COM PA NIKS ACTS. an iipsent i'arliaiiK'nt a.ssc'iiilih'il, .tii.l liy the authority of the -aiiie, a> ',. Tlii-.iit nia\ K«- > it.-il a> " Tlir l.iti .\s-ur.iiiii < 'oini>aiiit- .\tt, 1 H7(>." si, .it luU-. :. IIlthi^<.l.•t— Inl.ii.r-tation i'lie tiiiii '• 1 i)iiii>.iny ' iiie..iis any jiei-on ui |H'ison.Sj eoijioiate or ;,[' i,.,-,,,^, imin'iirjMiiale, imt lieiii^; in'^i>tereil tiiiiUr the acts relating' to fruinlly -^o. ietie.s, wlm issiif ur an- liahh' iiiKler jMilicies uf aj*.suiaiiec iijuu liunian life witliiii the Ciiiteil Kiiij^-'loni, or who ^.Tant .iiihuities ujion human lile within the I'nitetl l\in<;uT thi; court oi hoanl of direiio!- ot the conipany ; The teiui "])olii\ holihr " means the jiei>oii who for tin- time Ix'iuj^ i> tiie U'i,':il liol.l. r of thi' iioli. \ for .• o:ii|ian\ reoi.sioix-d or having It- lieail oilier in Kii^laii«l, tin lli,i,'h Court of Cliancerx ; III the i:i.s,- of It ciimpany rrL;i-tcre.l or having; ii^ in ail otlice in Inl.in'l, the Court of ( 'hanuiy in hvlaml ; in all ea.■^e~ of com- ]>,uiies re>;istere.l or h.i\ iiij,' it> lir.nl ..lliie in .Scotlami, the Court of Scjviion, in either division tlnieof ; The t-riii " ri-,;isti-ar " means the registrar "I joint >to< k i iim|i.inie.- in England and Scotland, and the as^i-tanl-rej,'istrar id' joint ^to^ k n.iii]),iiiio> in Ireland. ! Kvery ci>nij)any estaldi.sheel after the |i.i"iii^ of thi.-- act within tli. li (.omi. ";itfi Kiiij^lom, and every coni|iaiiy estuldi^lnd or to he estaldished «uit tilt I iiited Kiiij^dom which shall after the jiassin;.,' of this act conimenci' ■ w Mil the 1 iiMiii,s of life itssuLince witliiii the I'nited Ivin-dom. •^'''llic ^■';•,■,•.^■^(l to depiHit the sum of twenty thousand pounds with the ' j><*, a* to iiiduHtiial .VmiuniiR-f »ct, 1805, 33 A 69 Vkt. o. (in. ^g 4, ^■ulin uiiiU-r ill* Friendly Sooictien 28 A 3ii. . lonfi I UK AssiM! \N( T. roMr\Mi;s A( r, 1h7(). Lifi' fiinil 8rl>ai,ltc. Ai'i'KM'ix VII. .\r< .nuit.iiil (iiiicial I'f llir f'niut I'l' < li.iiirci y i// , |u 1,. invi Mc d l.y liji - .^^ ^^^^^ ^|. ij^^ xcuiitir- ii-um11\ ac\'iii|fHiii -li.ili ii"l is-uc a I rvliticatf III' iiu'iii)M.ialii.ii iiiiK-s MuliilciHi.i shall liavc Iki u iiiaiii'. and tlif Aii oiiiitaiil (Innial shall kImmi mii] (l.]i.isii III thf rniiijiaiiy sd simii as its life assmaiicc luiiil anumulaud iii III till- ] u luiiims .-hall have ainuuiitt'd to fnity thuiisaud |iiiuiiils (.1. 4. Ill till' ca^f III' a miMiiaiiy i'staMi>lud alti r the j.as:-iiij,' nf diis ac traiisactiiiK <'th>T luisiius^ lusidi's that of lifr as-iiraiuo, a Mjiii-aU' aiinuii shall lie kf]it III" all nri'i]'t- in ics]Tit nf the lifi' assunnui' ami aimuin ciiiitniils of till' iiinipany, and thi- said ri'trijits >hull hi.' caniid In ainl i'liin a sfpaiatc I'und In ln' calli'd tlu' lih' a.ssuranii' fund of thf cniii|,aiiy, aii snrh I'lind shall \>v as alisnjuti'ly tlu' .-I'l-urity of tlif lift' poliiy ami aiinuin hiililci> as thm.gh it li»'lonj,'rd to a cniniiany cairying on no otlur lu>iiu- than that of lilV a.-.-uraiK'e, luul shall not I'l- liaMf for any cimtrucls vi [\a ioni]i.iny for whiih it would iml have ln't-n liaMc liad tlu' husiiit.-.s i.f tin 1 onijiany lii'iii only that of litV n-suramf; and in K'.sjicit to all cxistini coiiiji.uiiis, till- ixriiiiition III' till' lil'i- a.-sniaiuc fund finiii li.iliility fu; ether ol'li;,'a(ions than to its life ]Mili( y-lioliii is shall have refen-uee mil] to the I ontraits entered into alter the pas>inL; of this ait, uiiK-s-; hv tin •constitution of the eoni|iany surh e\eni|ition alnady exists; I'riiviilo ' .ay .s, that this wetion shall not apply to any eontiacts iiuule hy aM '•>i-(iTi'; I'Olnpany liy the terms of whose deed of settlellUIlt tin; will ill' u till prolits of all the liu~iiie-^ .ir ■ paid exelu-ively to the life p.ilicy-liulik-rs and on the face of which contracts the llahilily of the a~^ureii ili-timt!' appear^ ('''. .'i, i-'rnni and iifti I the jiassin;.,' of this act every 1 'inip;:iiy ^luill, at tin ex]ination of each linam ial year of such ci.iupany, prep;.ie a -tatiiiuiit n it- ii-veiiue aci nunt for such year, iind of its I, dance-sheet at lie- cIh-c n such year, in the forms respi'cti\ily contained in the lii-t aiul -loiiw schedules to this act. 0. Kvery cotnpany which, 1 oie urieiitly with the L;ianii;ir^ el' lu'li'-ii^ o assurance or annuitie- on human life, transact- any other kind nl as.-iuanei or other liu.-ine>s -hall, at the ex]iiration of each -ucii linain ial year 11 afoie-aid. pre]iare .-tateiiieiits of it- rexenue account for such u'ar, amid it- halali' e -heit at the do-e of such Mar, ill the Imnis respectively ii'Il t.iiiiid ill the third and fourth sclndnle.- of this act. 7. Kveiy company shall, once in every live years if estaiilislicd alti 1 lii j>UHsing of tiiis ad, and ome e\iry ten yeai-s it cstai'lislud luleiv th pa-ssin^' lit tlii> a. t, or at suih -hoiter interval.s a." may he prc-crilicil li; the instrument conHiitutinn the > ompany, or hy its lej^'ulatinus ur hyclawi cau.se an investigation to he made into its liiianeial cimdition hy an actUiin and chilli cause an ah-tnict of the report of siicli actuary to I"' iiiadc in ill form prescrihed in the tilth si liedule to thin act. H. Kvery coiiij.anv sliall [oil 01 liefore the thirtvlii-i da\ "I Dc'ciul't; (i) liy ;il - ty^j. .'•ainc wii) as utlp 1 llllllle^^ paiii into tloil (c) f'te, also, ;i5 *: 'i'-i \ id. c Jl. J 1 IVmrt were il-alt with ; l.iit that s..tii)ii infra. «;i» rciicuk'd l.ythe St.itiito Liw Hexisimi (S. .\ctiuirial rejii ainl alistract. Mateimnt et lite aini iiumdtv hu^iue.sfi. iS A. T, 1h7(). ',]'.] ,{ 'M VTCT. .A I', r.i. ion- I'vy J' , t.i Iv iiiv.>i,..l l._\ iii,„ tlif Cciuit I'mv tin- iiiv(-tiii,iii ailiiiiiiistiiition, t!i.' iviii|,,,i,v ; tlic iiUdiiii' llnnl'ii.iii, ainl i'i)M.iiitii>ii iiiiK-s >uili(li-iM..ii it 1 Iriunal >liall ivluiii >uili -111. line tuiid aicuiimlatcil , v.; y tlioii.saud i»niiul.'* if . al'tfr tlif I'lu-^iiij^' (if tliis ad a--Mnuu'o, 11 .-i'ipa-i\ti' ainiimt lir life assiiraiui- ami annuity l^>liall li'.' tarriril tii and I'lm II' I'uinl lit' tlu' ciiiui'any, aii^l I'l till' life llllli^y ami annuity I allying' mi im nllui' lu>iik->,ini ~> ..f tin; am! ill iv.-ini I tn all r\i.-tii)i;i laiuc liiiul liniu lialiility Inrj I'lN shall liavc nfi'iiiiti' I'tilyj -iii;^ 111' tlii.^ ai'l, iinlr>- liy liii; idii alivaily f\i:-t- : I'li'vi.,-! til aiiv II lilt rait •! iiunK- I'V .;;,y ;| I'd i.f Si'ttlcIUfllt tlu' wlliijc iifij ivrly to tlu'lil'i- ii.ili.y-li'ilikN,f liility of tin- a>-urnl i!i-iina'y | •t i-vi'i-y 1 niniiaiiy -liall. at t!iej iiliuuy, in'i'imio a stateiiiint f s lialallif-'^iK'ft at till: iloM' "f I iiml ill the lir~t ami ."to;.'! \ith till' ■;i-aiiti:ir.' '■!' !"'li'i'- uf| rt- .my nthi r kimi "I' .i.^-urai. ftl if jiuli .«iuli liiiaiuial y>ai .uiimiit fur .-111 li year, ami ufl in the liiiniH r>'.>]'fitivi'ly ton-f hi- act. ,• y.-ars if t.-taMi^linl aim tlr^ •ars it ist.ii'li-lu-il htti'iv In \ :il.i a- may l-f iive-iril"'! 1)3J liv it.-< i«7;ulatii'iis nr hy iM.iai (iiiulitinli hyaliaitilar mh actuary In 1"' la.nlciulli act. tliirt\ lii-t ivi>ial Higti Court of Jii.-.tii': • »*•■<■■ ^* •;i.ticu, IJtIl fil., 1>. ■'; lll.'Ill liniuiWal colli ■lit jiiiiiiliiil aii'l Ki'Viiitv two. ,iiii1 thi iv.itt. •1 I wiiiiiii mill AiTi.vi.ix VII. tl- utter the il.ili' of taili -^Mi li iii\i-.-ii' h iii\r'tiu'atiiiii lie iiiaiji' |iri\iiiii-ly nr »iili-ii|iiiiilly to tin rof llii' ait I'roviilnl l\^ follow- (il.) It 'I'l ii'-.\t tiiiaiicial iiivcsiioation alti r tlir ]ia--iiiL' of thi- ai t ,t any .■.iiiiiiaiiy ill .1 urini. the Vi ar mil' tlinii-aiiil iiu'ht hiiinlicil aiiil -i\. utv-thri'r, tin- ;*;uil >tal»iiii nt nf .-m h coiniiany shall !■ tuii'aiiil within nine iiiniiths aftii the ilair of hucIi invistipiti tcail iif oil or lii'fiiri' tlio thirty-tiist day of |)i i • mlicr in tlii'U-^aii oil, Hill' 1 i-i;;ht liiiiidriil and srvt-nty-twi It' sii'li inv<-stii,'ation In- niadf atimially liy any i uinii.inv, -inh iiuiitianv may iirci>ar>' 'iidi Nt.itcinciit .it any tiiin, that it 1" niai Ic at Ica-t oH'c in i-vcrv thrc<- vcar- Tleiximssiiiii date nf each -mil iiivt'.-»ti;,'ation in this .ooitinii shall iiic.ui liiviUlc til which the aecoiint-i of caeli i iiiiiii,in\ are ni.idi' iiji fur the j.uf]«.H-* of cai li siicli invc'sli^'atioii. ;t. Tin- ri'i.ird I'f Tnuh', ui>oii llu- a|i|dieations nt or with tin- ennsrnt nf i.',,|-i,is m-.n ,lliv, liia\ alter the forms euntaim-d in the sehedllles to thi-< aet, {ov !•■ altered. [■lirinj-e (if ailajitili;,' tllelil to the liivnill-taiiee.s of sUi h e(ini|i,iny, or of 1 i.ullll •.td'i'.myiiijr into etfeel the olijfCt.-< of thi-* act. 1'. p]vciy .-tateiiient or ahstraet liereinliefur '.- !ii.'ni' V reiiuiled til III- made ,-h.lll .■-t.iliMiieiit.-, &••.. to t.< ::r. I |iv the chairman and two directors uf the enniiianv and hv the ''^ ''*• *'«""' 1 .;. ■ .1 i-r 1 - I .' .1 ■ and iiriiitod ■ iiial (ihier niaiia;,'inL' tlie iiie a.s.surance Imsitu--, .unl. it tin- ciuniiaiiv , '. , , , «;umiiiagini; diiictor, liy hihIi niiuia;^'inj' director, .md -hall l>e jirinted ; wni, l;,,ai.l il tLi- I'lieiiial, sn .-ii,'iied as aforesaid, toi^etlur with three printed cii|.ie- ..t Tiado. ri' f, duill l>e deiMi:.ited lit the Hoanl of 'I'lade within nine nioiitlis of viLUi'S rc.-!lK'ctively heii-inliefore jmseril'id as the dates at whiihtin- Mcim- t(i lie infimred. And every annu.il st.it.nient su depnsited after Li-iicxt iuvc-tipitioii (/' shall he aieonijianied hy a iirinted I'-py nf tin- i,iicy-hi'liU-r of the comjijiny. 11 Kvtry ciiiniiany which i- not reicistered under " the ( niiiiianies Act. '"•Ji. .uul which has nut iiicoriiorated in its deed nf si-tilniirnt section 'till- ('uin|ianiis ('laii.-es t 'nnsulidatiiiii Ait. l>^l.'i," shall keep ,i t.i 111 •Hell ti >ii:irt'hi)liiel>, \c. hist Hi "SklTi lili-rs' .iJiliess-liiMik," in irdai He with th -imis nf that tivii, ami -hall furnish, mi applii-atimi, to i\ii\ -li.iiehnlder and ]iolic\- '«r I.f the coiniiaiiy a copy of such Imnk, iii p.iynn nt nt a sum iint .-i.\j'eiice I'm I Very hundii d wi-nl- ni|uiri-d to he cnpicd fur siuh tS'.TOllIl, 13, E vc-rv all" company which i- nut re^'i-ieied under "th. Cmup.inies Ai r. Hoed ni' -vttl ill cause a sulliciellt Iiumher of en]iie- nf its deed of M ttleinellt l"utiil, and s-hiill furnish, mi application, to i-vmy sliarehnlder and • ill d nf si-ttlciueut oil pay- meiil to 1:0 in I litcd. ivlioy-holdcr of tl ivuiyiioiacr oi till- company a co Biciit I f a cum nut cxceedinL'two sliilli py ol iigf* and sixpence. v', Tlio Words in biiu-kt-t Mftilytlie Statuli. Liw lU s were re- visitui act, (/) *o\t mve-ti"atiiin moans tlio lirst line ti;;iilii)ii .ilter till I'^it; V Iia.-.-iii- till cl. 3l». act of l57'.2, see S >' of that act, iiij'r'i. lOi»H I I IT, ASSl'IUNCK COMI'ANIKS ACT, 1870. \ll I Mil\ VII. Document)! may In' tnins- Irrri'il lii'tii iKijinl til Ti-.i^lt' to rc(;istiv "I .li.iiit Slo.'k Ojiiiiiaiiics Duoiiint'iits til lio ri'i'i'ivcJ ill evitloucc. I'eimity I'T 'U .\ciimi'liiini «itti act. IVnaliy for Iill^ifyill^; htatCUlfllU. \' I'l-niiltifs li.iw to Ins ri',-(ivcrcil .,iid aiU'lii '1. Noliti > uiiilcr lliiN art ti> !•■ lioy-hoMcr^. Siatciiii'iitK, .\..-., Id Ih' lai'i I ildrc i'ar- llamint. Kxicpti'iUK. [AUirnl friiisi I'liily-uiif, //i/r- svant /(' lU li- ' lid. c 58.] [.iiji 1 I aii.l 1') arc i.riiititl unt, , yy. 898, 8!)l).] It). Tile l^ianl nl Trade may dirrct any iniiiti'd or citln r ilocniiuin ntpiiu'd liy lliin ail, m- I'cililiid iHiiiii's tlu-nnl, to l)f kepi liy iln' r(i;i,||;i of joint 8to» k i'onii>niiii'h e renivaldf in evidenii' ; and eveiy docmneiil iiUi|H,rtiii,r tn I eertitied liy oni' of the secretiiries or iixHi.stunt secretaries of tlir Ijiuml ,. Trath', <•! l'_\ tlif >aid le^i.-trar, to he smli dijm.'-ited tltnunu ni, and evei doetinient jmiiiortinn to he similarly et-rtilied to U- a mpy o| -iiili iliii. ■-ited «h>ctimeiit,sliall, it iniMliieed otit of tin' lUstcxl} of tin- H'mmI ■■! Tiaci or of the said rt'^istrar, he ihenied to he siiell de]iosited docliluriil ;i.~ alni. -aid, or a eti|iy thereof, anil -liall he reeeivcd in evidence a- if it wiiv tli original doctunent, nnh'ss some viiiialion lietween it and tin mi-inal ilmu incnt shall he jiroved. is. Kvery eomj'any whii'h makes defiiult in comiilyin;^ uiili tin. j, Unininent- of liii> at t shall he liahle to a iniialty nut e.\i eciliiij; tilt l>oiintls ftir every day tlnrin;; which the ihl'aull lontiniies; anil if .lilaul I'tmtinin' lor a iKiioil of three months atU'r notite of delault l'\ llic i'.i.,ii. of Trutle, which n«'lice shall hi- i)td)lished in one or mme ni \v<|iai>i i- ,i the l>oard of Trade may direct, ami after smh jiuhlitatimi tlie ( Hint iii.i oriler the wimlin^' n|i of the com])iiny, in accorilance wiiii tiir ( Mm|iaii .Vcl, Is(i2, iijion tin- .ipjilicalioii ..f one or more jiohi ydi"ld. |, ,,:• .hm, holders. Ill, If any -latinnnt, .ih-trail, oi olht-r docnmtiit rii|iiiu'il l\ Illl^ a. is hil.^e in any ]iartniilar to the knowleilj^e of any iiersoii wlm ^iii^ns tl, .same, smh ]>.i>on .-hall lie liahle on conviction thereof on indictnuiil t lim' and imi>risonment. or on -nmmary conviction tiitreof to a |Miiaiiy iii: exct'iHlin^ lifty |itiiimls, -U. Kvery junalty imiK)seil hy this act shall he recovcittl .ii»l apiilii- in the same manner as ]ienalties nni>(iseil hy the l.'oni]ianies Ait, l''tj:;,ai letoviTatile and aji|ilicahle (/i). (.^ -21 ami J2 are jirinted n/i/., \<. fi34 (i).] '2.'A. \\\\ notice which is hy tliis act letiiiired to I'c --eiit t.. aiis I'liI: ,i holder may he athlres-etl and sent to the jier.-on to whuin notices ri'-|n'ctiii svich jiolicy are iisnally sent, ami any notice so aildressed aiul mUI >lia he tleeined ami taken to he notice to the lioKler of such policy. 24. The I'H.aril of Tratle .-hall lay annually hefoie railianieiit tlic -lat mints ami ahstracts of reports ^ year. •lU. This act shall m«t allect the Commissioners for tin Itcdui tion ef tl .National Deht, nor the jio.stmaster j^emral, at tin^ under the auiiimili ve.stetl in them resjH'ctively hy the acts tenth (ii'orKe the Kuuitii, tliapt twenty-hiur,* third and fourth William the Tourtli, ili.ii'tii Iniutie ^ sLxleenlh anil seventeenth Vict.iri.i, chapter furly-tive, and twcuty-M-vi-n and twenty-i'ij^dith Victoria, t hapter forty-three. (A) S«e §§ ti6 A (it; of thai act, uaU, |.. 949, (i) See p to the contraol* to 1>« in- clutU'il in a rcJiictim, (/r.vi( Bi'ti Mutual Life Am. Soc., Vi t-'li. D. i affined 20 Ch. D. H.M. 33 \- 31 virT. TAP. 01. 1(>««!> ininti'il or ciilii 1- ilocumciU- 1', ti) 1m' ki'j)! liy ilii' i('j,'islra' V lioiinl 111 Tiaili' ; iiiiil ,111. Hoard of Trade iimv iliivc, ics I 111' loot'. nuau'iit di'jtu.iiicil Willi I'lc >t(Kk coinpiuiii-' uiuli'v ilii» V docuiiuiil imiiiuitiii^ til 111' soen-Uirii's uf tin llduiil ol i'pi)(oi>y o| -iiili iltjKi. ii>to>iti'd ilociiuiriil a- iilnb- ill witUiuc as li' it Will' till iVfi'ii il and till' iiM^iiial iliuii- : in coiiiplyiiit^ witli tlic n- II ]K-iiaity iiiit i'\i iiiiiii;^ tilty ill . oiitimii's ; ami il ililault lotiio nl' dct'aiilt l'\ llif I'luanl ill olio ol iiiiirt' iii'Ws|iaiiii- iH nil i>ulilii.'atioii till- I unit may i icovilaiU'i; with tin- I oiii]iaiiiis j iiion- jiolii y-lii'lil' I-- "I' -liarr- i docunu'iit n'i|iiiu'd 1 y ilih act ' ■ of any [iL'i>on wliu >iu'ii> tlw; [ion thcivof on indiituum to ' irtion tlirVfof to a iiriia'.iy uiit j lall bf ri'Covi'n'd ami a|iiiliinl| llu' l'oiii]iaiiifs Alt, l'^(i'J,ai-e| ilfd to li>- ^•^■nt t" M\\ jmlioy- -on lowlioiii n'tii:i'.'lK'ctini{l .■ffoit' railiaimiit the Mate lii tlnni iiiiiUi llii- .ul liming i.,ii»'V< I'lr til. l!i(iuitioii"f th^ I, aitiii;,' uiid.r tlif autlmiiiie ith licorK'- 'li'' l''"iiilli,>li.iiite ihr Fourth, .'.Mi't.i liiiiHien ti.rty-tive, and tw.nly-M-wnt^ lU-f. ■I iti a rciliiction, '''■'•"' Z^'''" uil Lijr .Lw. Soa, VJ iL. l> :^«l ;ea 20 Cli. i>. :5r)i. t .— - 1 "E ■« i 1 li . 1^ «4 1 1 . . .. — — -- -3 ' "i •" • ' ' 5 ■ •-^ 1 s ■ i a> ^1 i ' s 1 ■ • 1 • 1 y. 4) s . , '/. .2 3 ?^ 4-* «^ 5 1} i. V — -c j; *^ V a 3 ■" 3 = ^ 2 r 4 «1! li li a 3 il a -^ J3 5 '^ ^ a . a 5 i E -3 '♦3 ■n 2 - 1^ S 5 i '3 t3 5 "3 >» ■> P. t. 1 L r" •7. *»^ — 'a: '5 *~* j5 ■s-a ^^ •s^ V £-3 -•3 r -; 3 O ~" "*■ .:i^ r r. 5 Ji 1 r-5 *^ ■£ S •J £7j 5-3 ■-l 3^ : "i Ji «rf . . •3T2 IM •"^ "IS ** ■? 3h ;c • tC k V je iiini 1 1 2.5 a r ^ s = . 4) ja 1 a c 2 5 c! 3 "■ s 2 t- u 5 = 2 «2 s -3 13 3 S.^? r. ^ u s i - -3 J 1 J, .^-aZ ■C c •S 3 .4M _0 »*-i .2* M.SZ 3 '♦J 5 1 "3 1!! 11 = < •-* o O »— 4 o i"! 1— 71 ■^ ^a ''. '^. Ai'rrM>ix \IF. 11 no /\i'i'rM''\ VII. W ~ ^ IS s B I Liri', ASSfllAN* !•: (OMl'ANMKS ACT, 1K70. -< c = : _2 u -re c s 11 "S'S *• «-• S v» "? •:=• S3 ^ s « 1^ u if to c S - « ^ >•, a 2 JS • i ? 3 S:5- ••« ^ 1 "** 2!; i 1 w o 1 :j 1 ** E4 i CC 1 < zi 3 3 >. .3 -:; * •3 1 E is* o c 'a s 't; n '3 O ■y r ACT, Into. a.'j iV ;u vu T. lAi'. (ii. iiui :'i I !<^ ■■^ ' s -cry Sir; s '^•- 3 .3 ' Si " . - a • ^ 3 - J p « a o ~ 3 - 3 § "S 3 J It a f=:t: s i."^ r £ 5 £ r .£ : 5. "3 =»• ^ 3 b u ~ r T-" - * ! - 3i ■■ 5 S 5 ii^^ - , < -J ■ I A ii - t * i •/. <•_:*;; i^lJ s y. •. 1^ 1 -C I. i -3 - - *^ - k. - ^ 5 ■" 1102 III K ASSntAN* K (OMl'AMKH A( I", 1870. . . . • ' • t ■ - £ a * r-1^ . o St^* •Jl 3 B i5i • ^ ' fc. ■ . ' • s . a a • .2 ^ ■'- ■r o C- - s I 'i 144 1 § 1 -s .a § I B ,2 > • • ■< 5'. '>. 41 ■-: IV 1 "S 5 . f B ^ I- Us " J C S 3 O ,-3 3 § ^ s -. ^ - >•. ": iiPl •^ i-S *^ --V a.5 u i.5 1? f-i > q 2 Jc, JS r^ ka 1 X J a J-Jf 9 d £ ~ § V B i, * 3 3 2 >- r -5 >5 ^ O _ 7" >. c - ri 3 «; O 1-J •< tt. 1, =< a ^ Q B r3 a k, e o -3 CO S V ?; CU O ^ » IT' Cm S rj '3 >. B I ^ at >— 1 3 O 5 3 a a o o .a V K i: := j( ;= .3 3 -a — b ^_ i..5 V — ^ i; r! 3 -'3 < I s ■2 ? " 3 c ^ ■2.3 ^• * g u §11 88 fi :H vK-r. i;.\i'. 111. I lo:f APfKMKft VtT, FIKTfl SCIIKDUIJ-:. >'»IKMKNT RKHI-KlTIN". I'HK VAMATImN oJ" TIIK I I AMI t.lTIKf* I NKKIl I.IKK. l.il.UIKH ANIl ASMITIKS OK THK , T.. UK MAI>K HV rilK Ai-TIAIIV. Till' »n»w •iT^ .-lioiiM Jif miiiilN'r<• v.ilii.ilii'ii !■« iiiiiili Till' priiii iiili''* ii|>i'ii \vluc)i tilt! ' iliiiiiiiin itiiil 'li-y tlu- inflniiiH'iit cuii^tiliitin^ llif ir, in ••a.-n- ; ,»riiiii|iiiny wliiili li;w niaili- no vaUiatinn, >inri' tlii' iDninifni-unu'iit of ill' tiuMiii'ss. (Tliix nturn ulioultl ln' niailf in tin- furni unnfx»'ri>tit- : ami alsn thf aelluliiluii'> ami it-.si't.s of tin- cunipany, with tin- anmuiit ol siiriilu> or intidi'my. (Thi'sw rulnms shiuilil Iw niaili' in thf furniH anm-xf*!.) S. Till' tiiiir iJiiriiiL; whirji a jxilii'V nui.Ht Ik' in tun-i' in nril.-i to iiitith* ;t to >li;\ri' in ihc |iriilita. 9. Till' ^sult.s (if the viilualiim, sliuwin^ - (1.) Tilt- tulal anumnt of |iii>lit niaiU' liy tlii' ■••■ni|'any. (i.^ Tlir aiiiiitiiit of iMiitit ilivnloil .inion^^ tin- jmliiy ImMci-?*, anil the iMiiilirr ami annnml uf the jMjliiies whirh parlicipatril. l3, SjH'i iiiuiis (if iKinii^ifs alliitltil t<> imliiii^H fm liio/. vtfnti'il at tl ritl«'i;tive a^^i s I if -20, :j(), .JO. ami :.0. ami 1 laviin. lifi-n n'~|>i'ctivrly in force for five yeftn*, ten years, and npwariJM, at mil rvals if tivi- viraw rivj" rtivi-ly, to'^rtlirr witli the aimiunl-> ;i]iI'.irUiimil nniler the vuiiom* inmles in which the bonus niij-jhl Ic n-ooivcil. 1101 i.nr. A-^NiuANc i; comi-anh^s act, 1s7(). AlTKM'IX Yll. (A .a c tc •S es C 1. o £ S .5 c ^ a 5 •5- • • c--. !•' -■*^' '^ » Y. .i f- * ^ .■^ •^ '— ' 1 --V —4 u •^ x F^ tf. •. ^ P V !-, Z3 ^— J: O ^ ■t. '^^ . ^_^ x — ,', » k« /. i^ !^ ^ ■/ f. !!!» *- . ■f. — t — ^ M •^ 'S ■" sT c^ » C **? r5 — '-** -^ -- £ ■. .£ •f J. ". u at « H 3 CJ £, K o "u. .5 "^ B S £ 2 c 2i 3 O rr ii 33 A 31 \i. I. (Ai'. (W. 1105 er cent. Not bility. i If 6* ; .s I ! "" *"* >, 1 Ii| § s i £ 3 - .;: '••'a 3* a ^ /. " lEs ' tL -■ ^ •; i,.,^ M« «^ T 1 '-- — — ^ X -' 'j 8 tX i H « 2^ \ 4 1 cJ:-s ^5 ' > ' C u S •f ri 1 " "c = "* — '/: t - — 1 - . ::> 4; ♦• 1 . t> 5*5 — ■•-• — >-. - S i « 2 u ■ — ; ^ - - - - - a S S 11 .a /• >> «" ~ " r -i Z < ^^ ^r. — £ - i l« Z "^ 1 ■ ""J a: R i ~ "^ t» i (- »- = e e • T ■•£ ? '5 •:<^ ? 7 1 1 •: ; X , « i 1 i 1 •^J £ f - c— i ' . a-S ■ I a, 'M 1 1 - K 1 a 1 : 3 ; 2 X i 1 i i i 1 n . .: f; * '•• T ■ Mr: ^ .' v ; y. I = ^ -3 • i - i ■ ' i, Sg - ' * * S - 3 • - ■ — "^ c ■ . , , • -i ll .• z •^♦* ^ - i , ii-^ S t - t < • ; > X 5 ' i ■ £■ a. • i 1 .5 ■r. C a -r, V C si a e •-. is 5 * ■f. < '<^ -5 5 e a -= 5 ^ - 3 ^1-5 -it » fc c H 5-1 3 ^ IB t^ 5 = 1 "» t e S 5i 1 ki j: •' I. ^ •^ ■u - w >* - r •! r r* ';*' — — ^ u. C u: !>•.:>: t-i . — 1 4 It iiu; i.i:k As^inAN'cr, co^:^A^ll■;s mv, 18T"2. V.M • ATIK.N- r.AI. \N\K SUF.KT C«r as at IH , j 1)1!. I ! Til iirt li.iliility iMulr Asstiiiiuco I iiinl Aiinniiy tiau-ai'tinii-* (as I \«'i hiiiiuiiaiy ht;ittM'U'iit ]>l.i- i vi'inl in Sdi.ihiU' T<] . . . I Tm sn;i>1ii>, il any Cr. i' l?y lifr .i.>.sur.iiii\' aiiil aiiiiuiiv fund:. (a8 pt-r bulani'u -lici-t iiii.Ier Scbeuuli' 2 ni }) . , i!y 'Ut'i. i'-ii'V, if any SIXTH schk1)t;u-:. Sj \ri;MtNi OK Tin iiri: avU-ramk am> AxyriTV iii;.>iNEx> i>r THE ON i""): l^ i^'l'lif iiu.-wers hliouM )'■ mimluTiil to a'> "t'l with l\i<- u'ur.l'fr^ I'i" ili fMiii -jHiJnliii^' tjuctioii-. Stitfiiii'Ut-t tit' ro-;i.--iiiaiii;.- r .rnsp'ir.ilii; t<< tlic ,-t it'Miiciit^ in n-.]i>-i t of aHhiiia;:';'-*, lunlm- lifa^iiiij;- i, '.), 4, ' anJ G, nil- \<< Ik- given.) 1. Tin; i.ulili.sluil t iM-' VI t:il.! f ]■;■ luium' f.'i- a.^-surauoc.* f<'i i! vli.«li- t. ini (vf lift- wlii.li all' in us.- at ll.^- AnU- alMVo nu'iiti"ii'"l. 2. Tli ■ t'ltil amount a-vMuvi on livi-. f^r tin- win.!.- ttTin of lif.', win- a; ■ in oxi.sti'nco at tln» dale alM.ve iiientiMni'.!, ili.slini^iii.-ihiuu- the jiorti^ii a .^u;l•ll wi'ih ainl witlmnt |.inli!,, f.tatin„' Heiarately the t'ltiil n.wrsi.'iiit 1i»nu-e-i and .-jH-cifyinj; tin- f-nni.s a<.n!rfd f.^r each year i-f lif<> fr<>ii, tl yi»unj;«st to the oKlost ngef. :<. Til- amount of i.ivmiumi n-coivaMt' annually for oach year of lif afM- d.du tin>; tlie id.at.'nieiit^ made l.y the ai>i>!iriiti(m 'A Ioiuh.% i n-»jv(t I'f the ivtiK'i tivi' a-HHunuicC!* metitiom-d luid-r IkmHiu N" ' «li.-tin^ni-hinj; (udinaiy fimu extra ]iremi,:in.'*. •1. The t. t;il amount a-Hire.l under elxs.se..* of iissuraiio' hiHiiavs . tli' thm fur the whole term cf lit. , di.-tingui.,hini{ the sum- uriureil nil eah .las-, and Mating; .seiurateU the amount aspired wifb aiM \\-itlio' j'Vdit-, and the tilal amount of levei-sioiiary lionu-e.-. r>. The amount of inemjumtt rfreivahle annually in re-iwvt .f ei.h ^u( sjM . i.d ehi-s of aviuranciM mentinno,! under headint; No. 4, ih-t:iiguhliil oidinaiy fr im extra i>iemiuni.s. f.. The total amount of i.reminiu^ whi.h ha.^ l«--n n>'vived fn>m I «onini.!i enient u]h<\\ all ixdicics under e t di .siH-ial class nientimci ni't Il adint; 4 which an' in foroe at the date above mentioned. 7. The t„tal amount of inimediati' annuities on lives, ,li.tin,'UMlinii,' tl nntouj.ts for each ytar of life. .. 8. The amount" of uU annuities other than iho.so .siwcitied under laM'ln nr, \' 30 vu;t. cap. 11, 1107 [•'it'ih S,1i,h1ii1c.) - ilistiii'^uishint; Mic amount of aiumitii-H jiayalili' uml( iIk- imniiivw.t^ inv-tfil nt tlic i:\n^i' of cacli v.ar iluring tii'- \»'V\'<>\ -in.- tin- ;,.t i!i\>'5ti>rifi.'ii. 10 \ \M>' of iiiiiiiiiiiiiii vaincs, if any, iiH.w.'.l fir tin" siirifnil.'i (f viliic< f.ii' ill'' «'li<'l'' •'■"" "' '''•' ■""' ''""' '•n'i'iwnii'nt-' ainl cmlowiu-'iit ,Munni'f.». "1" ■• ■■^t.itcnu'iit of tlic nictlio.! pui-m.il in cal>'ulatin>{ .«'!' !i ^arr'nl'f v.iliu'^, will" in-fanrcs of its appli'-.ai.in fo j.i.liciiM of ditFi-ri'ir, jliiiilins,' iiii'l t.iki'ii ont at vaiii>iH iiiti-rvil a^i'-* fniiu tli<> Vimngest to tlw^ 4kt. Si'paratt! statcnvnt- t" \»' ftirni-ln'il lor ImmIh, << at i-tluT than Eiir'j.>M' nt« tM'cther with n slat'-imnt of tin- mkuiii'T iii \\!iii!i I'oli'i-s on ii;il,..Mlt!:v livr^ ,iri' 'l''alt with. .r4 with tin' u'.uii'vrr. d' ili^- of re-;f.'*m-anci' (.'"rrcsiKinili: .; j rr^, unil'T lu'a'hiu- -. '•'• •■ 'ij .o.ini.' for u.<>ui-.Va.:.'^ f'-i i''«| !;it»- ah'ivo menti"iK>'l. til.- whoK- t.Tui of Iif--. ^i M |..,1. ai.Htiui-uUhini; tin- I'ort; -A o,r,,l<-lv th.! totiil nvorsi.'! 7| ,.i li y.Mi- '■!' hiV fr'>ii. i' annually for -M'h x.Mr^'f ''4 |t!i,- ai>i>li' ation >■( houu*-. ii^ |t,,,n.Ml un'i.T h.M'Hiu N H „ . of asMvraiio' hu^siiiiw, • tlie^ ,l;;n.,. thu sum- a-wti'd v.A' ,.,„t~''a-Hur.-l ^^i!!' '"''' '''" . Ii.inn-''- , . Lnniulhio iv.i«vt .f '" ' " h,.a.lin^ N". -I. ''"«'"«" -5 |i,h luM 1 n tv.viNv.l f>' "'.^ 'Ij I, ,,H..uiKla-snirnti.!i-l :■' Ih.vi" ini'Utioni-'l ti n hv.-s .lUin>;">^l""- th Till', hlFi-: ASSrRANCK ( '< )M PANIKS ACT, 1^72. -.]:, \ ."ii; Vkt. (A IV n. Ah A't to ami-it'l th-- Lift- /Ijisi'ni/Kv CinnjHuU-'.t A't^, 1 ^-T" "»"/ M71. [r,th A»-iiiM, 1 X72.J BEiti'iiKtol \'\- thr t,hicrnV luo-t I'Mflliiit M.ijci^ty, hy ai.il with tlni »lvicc .iivl loii.-i'iit of till- lonls Hi>irilvi.il ami t'Tuporal, an |ir-:*irit i'ir!i.inn'iil a-fin'>h'il, aii'l hv the anthoritv of tho nam.-, as 1 Wh-ivjis liv the provUion.* of llu' ■• Lifi- a.-'"l'-»''y 'u d iDiiiicv into tho Court of Chanccrv •)V wav of (U'iK>.-'it, iii\«l thi' ro rtiti- ,,','" aieol i:uMqior:iti<>n (>! nuch company i-. not to li,- issue I uuli'.-> .su.:h ■iepjJit li,u li.n-ii iinuh', and hvn h d. 'posit is to \>,- n-turnoil to the iompan> »*ioii;i- its lift- assuraiuf fund amounts to i!i,- •(•nii therein nieiitiono 1 ; ttti '! 's li.uc :uivfii ns to the ronstrurtioii td" the .-ai'l pri)\ isi^n,, ^1'. I- <.\iK'dii'iil to remove sutdi doubts ; he it theivfore enaeted m fclU-- Tii- ..liij lii'iMi.it may I'l made hy the .suh.-ivihers of iIk- niemoraudiiiu I «u->*u;i,n (if 111., (uiiipany, or any of them, in the uain.- of the p'.o f^^l ..ii'.irtiiy, and suih deposit upon thf inmrpuratiou id' the conipany M Ir ,|,., I,,,.,! I,, |,_,y,. )„.,,„ „, „1,, 1,^ .,,,,1 (,, 1„. j,,i,t ,,f the il.s.Si.ts of tin- Tbc Slid (li.j«v n 2 1108 MiK as«ii:aN( i; coMi'.kNir.s act, 1872. iilc fuu'is, ArPESfix Vn. til the jmivi^ii'ii-i nf scclion four of the Life assurance cojiii'inif.^ ni ISTO, ai'i'(iiiliii;.;lv. 'I'lir Buaiil of 'I'radc iiiav friun time to time luak iuiil \\]\i\[ iiiadc ii-Vdki', alter, (ir add to, rules witli resjiect t'ltlie iiiivihc; and upavmeiit nl" the said de]Mi.sit, the inve»iniei(t uf or ileaiiii:,' with tl fame, the di|Mi-it <<( stoeks or securities in lieu of money, imd tlic ],a nieiit of the interest or diviili-nd.s iVom tinit.' to time arcruin.,' due i.i: ur sueh investment, stocks, or securities in res]>efi of i^\\,]\ ,l,]„„it. .\, rules nnide in |iurMiance of this section shall have effect as if tlir\ \w enacted in this act, and shall be laiil iiefori' I'a'.li.uiunt vvllhiii tliieewci'l after they are made, if Parliament In- then sittin;,', or if n^t, witliiu thri weeks after the he;;iiinin^ of the then next session of Parliinmit. •J. Whereas, by section Unw of the l,ife assurance c(Mn)>.iiiii- ik ],>^7ii, it is enacted that, " In the ca.-i' of a cumiiany estahlished aftLT t! jiassini,' of this act. transacting,' other l>\i-ini -- liesides that of life a^sl^■alll.' a separate ac.Munt shall be kept of all receipts in re-pcit of the li assunince and annuity contr.icts of the company, and tl:e said rii'iiji shall be cailirl to and form a separate fund, to he cul!- 1 tin; life :issii ance fund of the company, and su< h f\ind shall be a> ulisnhuely tl security of the life ji^licy and annuity leiJdiiN as thoui;h i! bcli>ii;'iil 1 a company carryin;; I'U un other b\i-ines- than that of lit' nssinaiic, ;ui shall not be liable for any mntracts (d' the ( onipany for whirli it wuul le.t ha\< been liable had the busiuiss of the company beions were made by the sauic scctir: with re-pei t to the ajiplication of the abuve-recited ]>ait of the said scctii to existiiij,' com]'anie.-. and iloulits have ari>i-n with re.-pccl to tlic cm strihtiou of the said ]'iovision>, and it is e.\pedient to remo\e siicli dnulit: be it tllerelore ( Iiaclid, That tlie]>ortion of section four of the I.ilV assurance tab|i-hed b 'lore the pi-ii of that a' t, priividtd that the Life a--uranee •onipanies act. 1 s7o, ai this act shall not diminish the liability of tli>' life assurai\ce fund fer ar contract.s of the < ompany entered into before the pa^-in^ ef th'- hi assurance companies act, 1^7''. 3. Where.i. by section ten of the Life a--urance compani •- a.l. H' it is provided that, " Kv.iy annual statement so deposited after the uc inve>ti.;alion shall be aecouipanied by a printed copy of lla' ahstra r'-'|Uired to be made by section SeVeU,"' be it therefore enabled that tl wohU " next invest i^'ul ion " shall be coustrued to mean the tii-t iuvc-ti. lion after the pii-^-in>; of the said act. The lioaiil of Tiade shall lay befon- rarlianient anv stat.-incht abstract of leport vliich i.s deposited with them by any ciiii.aiiy, ai jairji-irts to be in pursuance uran(0 compuiics act, I'^i althou^,di the i'.o.ird are ,.f opinion that it h not such a statcuiciit abslnict tij» is ri-<(uirid to b< pit>par<.l by that aet, [4. Printed nut', p. (ii:V| [.'i. Printed t', p. 1X\.\ <;. The rnh- in the first and second schedules to thi^ act shall V' the same force as if th.v were rule- made in pursuance of the o .Shed.dr.s to !<- i,^,,,,^^.^ ^,,,1 ...v.-nlieth, oue hundred and seventy lirst, and one liuiMr lulw ui ccurt. ^^^^^j ,.,v..„tvthird seetion« of th,- "Companies .ict, IS72," as the ca'-^ m l>e, and may be altered in manner pro\ided by the said sections, and nil inav U' iniide under th.' sai.l Hection.'^ for the purj-ose of carrying' m efb'''t the pr..visioi,„ ,,f thi- a.t with re-i-t to the windm- 'T companies. Depi^it f'f Aliiteiiieiit Hiid alistra' t rciiuircil I'V ;t;i A :u \i.t. C. CI, H. 10. Ruirs in First and Secipn.l a,' .';; :]() vi( r. cAi'. il. 1109 Ai'i-E.vMx VI r. :. I'lintnl <»/.-'•, p. -Ji;." / .] -. ThU act hIkiII !..■ c..m-iiiu-,1 a^ ,,nr witli il„. ].,(.■ '<.MU'.m>-v r„ui - ,;,io,i.t-, IHT't .111.1 Icsri ; aii.l iliuM. ail.s an. I this „t n.av ).,• ,.it,.,| *'""^'''"^'''"" i.vlh.r as "Til.' Lif." ax-UlMIMV r,.Mi|,alii... ;.,(., IsTm f. I s7 2 ;",ui.l '"'''""'"'"''• iii< " 'I'li.' I.il,- ,i-.nr,iii. ,• , oi,ij. iriii-r< a. t ls7J.' irii;sT sciiKi.ri.K, ,„.i„t,.,i „„^, ,, 7;.;. | [si;( UNI) s( 111:1. rjj.;, ,„i„t,,i „„i,^ J, -.,, J N'.iTK.— Rnlfs have Ih'cii issiicl 1,\- tl,,. I;.,,u-.l ..fTial, M.Kr tl. ■ r.,iv. |:„;,r,l.,fT,Mlc p.in; Lif. a..,.mn,v ounpani.., a,;,. Tl,.. n.l.s a,- .la...! ,1,.. :;s,i. liX! :! l::^, A;i.ii-t. I"-i'. Ilu'.v ivlatf t...,l,taiiiiiu' w.inauts tV,,iii ij,,- |!,,,„,| ufTi .I,. l-'T..'. " |.rl!ir.!c|.n>;! in <',.urt i.f fiJO.dti.i a. iv.|,ii,v.l Lvtli-a.!- aii.l i,. tli.. iwiHTt ..;i! tmi'l.r aa .ml.r .,rtli- C.a.rti .,f tl„. ,l,i..,.it fiin.'l a^ s.„,„ ■,, iib!.r..v,lM t!,.. Mat,isra.:ti..ii ..f t!,.- C ...it ili.u il... lii'.. a^.mau,-,. |„, a kcmiulato.! ...ut -f pnniiiiiiis |.ai.l (.. i!„. ,.,,„,. anv amount, i„ I' i . .„„) {1/ >'oc 't'lU, ii<. '.'SS— i'Ji. INDEX NO. [. INl'KX Ml rili:tVi.Ml'ANli;s ACTS, Ihti'J- I«8'i, ANDTO THK • T.AI-^KS dl- TAl'.l.K A.. AND T') Till': KI'I.K.S PROMI'LCATII) I'N'DKi; Til K Al'TtloiaTY OF THK A" TS oF IS.i-J A\'I) is. 7, AN'D TOTlli: I. UK A>sri;ANefc: co.mi'anmks acts, inro, isi-i. S,B.-Inll.i< ImI'A llic r.illiil*;)! |>rtct'!:i.« Act" I'f'..' ami lh<.7 ; :l'..ip (in v',t' r '' r. ' iifrr f< Mil- nil's | rii:iuili:at<' nilrs "f I"ii«. Thf nll.i'i Ciiiicanie!) Acts arp iHi'tii^i.nimlifil hv th, i.M;ti. n of the ilate ; t!.o 1. 1*. r-^ " I.. A.' Tf. I ' •h"' I. fi' \ssiiniri' 1' C'liijMiM » A tx. \|; Ui.MKNT '»F ACTI"NS. \v(uro loii ijaiiy 'haiim's jnn.o, s. I '1, 'JO Ihif c<>iii|Hiiiy rogi^ttr", s ll'D .\r->':\tNi'iN»; igiitributory \x>\\\v '■> arrest, s. 118 AiCol'NTANT, 1 iiiit'is may ii|«[i'jii!t, A. l\J AC' ■ I't rv!iij>aiiy, A. 7^- to shciw anioiinl of .t* 'uniiKitcti I'mlits roturncd o:; r».!;i. tl>>ii (if ia|)itiil, act -.f 1 «« », ^. C to Im! kfjit. A. 78 amlit (if, A. 83 - Ul falsify in^ !6'j '( t..iiikiiij; I dinii.uiy, .i,t "f 1*7^, . 7 sin'ction v\\ A. 78 l»'ii'lint; will liiiK up, •<. lf>i!, ml proiluction of, to iimlit'iis, A. 0), U*l of iiffii ial Iii|\ii(latoi>i iiisi^o tor- 58 i; Iiussiii^;, r. 11, ]'.>, .iii'l whs! till y .4!i- ti ki iji, with tho I'niik of Ennlaml, i. II, ami ''J it iiiHpi'tion of, s. IT'tl mil I. .'>.S Sei- also, !!• iiiv.>< \\i> I'miiui riov Aor.Mri.ATKH rKuKlTS. return of, in rtdiKtioii of j>aivl-iip capital, ■Kft of 1 <)^i> ACnONS lor .alU, s. 70 against (.orHpaiiy whi.I) hxt chaogt'il its iiaino, s. I <, _') [N'.B.-ln thin Imlfx "«.* mM.im in'tioti, •■ A." mfam TuMe A., aiiil ' 'fwnrtii .11 ti'aik Ij \r tiftr to 'l.e Ait o« lMi7. .iii'l the rulis of It-C.--*. J !:l Ills lulr Ihf \\\1 iNiir.x NO. I. I'o A( IS ASH r.ii,i;s. At Til '.NS— <•,■/»ni]iaiii('s ic^jislri iii^;, s. 1'.^.' st.iyiiijr, in >\iiiiliii;< up tulMU' w iiiiliii)^-u]i oidci-, s. S.'i, I'.^r, '.i] iiflrr iljito, X. S7, I'.tH, •jirj I'V lilnitril o<>lii|>.iliii'H, Ml utily fnf msis iniiy In- niiluluil t'> \,f ^ivii;, tiv a--'-ij;nc<' of ilrl)t in lii.H own iiiiiiw, s. K')7 liy otiiri:.! li.|iii(laliiiv s. I'l, i".', ami r. i» :<iiiiiil iiifttiii^s. A. -T"*, 11 (.1 pior,,. lilies in wiiniiii;{ uj', r, 7 ADMlNISlKATktN, power or li.iiiiilittiirx t<> lako •. I'l.'i, li"! Ar»MlMSTi;ATohilioii to wiml iiji, ••. 1-'!'J of ni(itiiif» to coiLsiiUr liqiiiilator's ripoit, - 1 1'J of intriilioii toilwm^i' rcjfistcti'fl olliic, v. -1.; tliul ri'«i.st. :i;! Ill »iiiiliii),'-iip piixcfiliiigs ,i,'iiii ral mil' as to, r. M of petition to wiinl up, r. 1 of order to wiiiil lip, 1. •> of aplioiiitlii'iil ot iilliiial lii|iiiilaror, r. (•, I', !t for ( ii ililoi.N to I oino ill, r. 2U of inakiiiK' of I alls, r. Ii;!, .'U lor inrctiiij^s ol iriditors anil ronti il iitoiji s, r. -ii I'l [H titioii to rtiluic 1 apital. r. 5, 10 (il liHt of rri'ditors on nilmiion ot > ijiti!. r. 10 forms of, S.I' FoUM.s S< f, .ilso, Nm UK AKl-IliA\ ITS. Im fori' whom to lie •.worn, s. I'J'^ ji'ijiiry in, .s. Kit) i;vn>Tal Mile as to. in windiiif,' up. i. ,''■.'' in jiriH iidingh to ndu.e c-aiiital, r. 6, 7, 11 foiniH of. Sec FoUMS AI.l.KCl.l) CONTKimroKV. v 71 », DO ALTKUATION <.f (ornis and Tall].' .\. l.y Hoanl of Tiai!.\ *. 71 of I'oiistitution of lompanii-s fornn'.l unti.r tlii' m t, •>. I'J, 5", aii'l A. ■JN, not foniu'd under a.t, n. 17<), U'O of list of i-ontrilnitoiifs, r. -"J 31 of naiiir of roiiip.my, s. 1'.', 1'!, '20, ][») of rrgistiT of niiinl)i-rs, s, ;t.'i, !iS of r.'jifisli I •. ' iiu-aiiii Mctiiiii, " A." tm-aiif ThIiU' A., aiel " r." iiieaius rule, refcren.-ei. in l4H<:k tyiM- i.l.r l.. llie .\.t .if Is.jT. .mil tlie iuU» i)f ISUS. J 'X> ~ IM'I X NO. I. lo .\( IS AM" l:ri.i;s. 111!) i,n, V 1-J, 5", an.l A. '.O - ANNl'AI. t iiiil -,11111111. uy to I"' sent to !• ;4is'i;ir, s. '.'li, ii;cctiii« liii'i tiiiL' III' iiii'iiilx'iH, .-.. V.K iiii'l A. :ln titi^-t to l«c im!I'-iI liy lii|milMt•> .J4, TiS, :.'.i ,if iijsp.'. tors, 8. (if iiiiiiuiattirs r.'i. till liv loiirt, s. Ill', 111, l.'iii, i; atiii >V iiii'IiiIm'M, s l:i:l ilc|i>'atiiiii dt', til ciciliti 'if ■iiiliiitiir liy linuiijators, .s. '.'7 irri'^jiilar, nf liirt'ctorx, kc, nut ti> .ilfi't v.ili litv uf tliiir .c!*, ». '57, auil A. 71 akiutkatimn, jii.wiT til I'Ar til, 1. 72 AKUANiiKMKN'i'S Auli 1 ivililnis, pifWt r iif liipiiiLiIiii> 111 luaki', >. I'-l', aii'l at if l''7ii, s. 2 witli inilitiirs III voluiiUiry wiiuUii^ u liiiiliir All s. l:jj -U17, ami ait uf l-^; ■y liipiiilatorH, fer siih; of ioiui>iiny".-> l'ii!>iiu'*<, kc, ». ItU, I'JJ AUa'.ST, li'iwiT to aiTf.sl ahsi-iiiiiliiif^ ciiiitiiiiutnry, s. 118 If tu anv-t jM i-i iifuiiiiL' til alt'inl tti by I'xainiucil, s, 115 UaiCLt>i < i'«';>y "f. l*i\vfr to alter, s. .In Imiiis uf, .mIh-iL -J of ait , fill 111 l'.» n. A^^ltiNLK uf il'.'lil, nitioii liy, ill las own iiaiuo, -. 1.' i^>li;NI,I.S IN l; WKlUlTl V, '.i.uisfvi- ,if sliar.-s liv, A I'i liJ liability of. to l>i' inaiU- loiitrilmtoiio-', >. 'V>'.»' lATiuNs Nur I'ui; ri;»»irr, b 23 ilTl-.N'l'\NC'H ui \viinliu;;-up proc«iiliiij{s, r. iIO fur ixamiiidliou, ». 1 15 A., ai.il •■r."iiie3li>nil«- '^'■' i-ii'S. J N' I!- Ill lhj» liiil.\ 1." iiii-aii» wftioii, •■ A." II fills Talilf A., .iml ■ r." niiMiu rule. Tlia '.ermiei ai h.a-M «>!»• r.for to Hit? A.t <>f 1S«7, ami the rules of JSikS.J nil INPEX NO. T. TO ACTS AND HI l,i;s. Ari'ESTATIoN of iiuiiuirniulnin of a*8.>.lntii>'i, *. 11 ol artkli.t of as.s«xia!ion, 8. I'l A I I'lr of ooinprttiy'M flii'oiints, A. S3 -04 I'f Isiiikiii^ CMiiiji.iniis ;icc(.i\int, att of 1870, •'. 7 AlMTuKS. ui'l'cinniKiit, jiowrrs, and H of, A. 83 M hi I'ftjikiug coini'aiii' ", act of 1t7i'i ». 7 llAl.A.Nt F. S1IKI.T to 1 r l.iiil lufort- jreiiiT.il :.;.rtii)v'. A. 81 1 ojiy to I'c >tiit ii> iiiciiilifii, A. ^'2 loriii of, •.iliid. 1, lit til'' A, tn lio ]'io|iiiit'.l liy oflirial lii[uiil.it'H on ti'iiiiiiii'io!! of nimliiii,' iiii i ij.'i iiijj'niituri- of, uf bniikiii^' (H)iiij>Jinii.'s, in t of ISJii, s. S I'.ANK OK K,N<;i,ANn, oiiUr to I ay jiii'iH-y into, •<. 1^^:!, an I r. II, ZS arcounts with, «. 104, iiMl r. 36—44 »'\('('iitv'l from ni't of l'*"!'. S-o •;. 2 HANK INC lO.MrANV, win ii to hi' l«'};i!»t' li'l Uii'h r art of 18'i'J, s. | ni ti to l'<' jjivrn jTi-'i to icfjistratiou rovit*o a* to iviwal of a.-ts i, f. '2'i:i, ni:l >icln'il. :i | iil J (of ucl) amli: of ai't'ounts of, a'.t of 1 *"'.», •*. 7 liANKUriK Y, \viinlil5>{ up in, •«. ^l »oinniis»ioii(i» of, trtkiiij; iviiKiKf li»foro, s. I.! powtT of Hiiiiiilators to prove in, s. ?'< tiaiiMtfof >.lian 1 01), A. 13 — I'i liability of a'.i.i^'iKts Ni U- niaU I'iU'.iliuttirii^, >. "7 I'.HAKKK. ^llau■ wanants to, B. 27, 30 lifcNEFlT SUCIKTY, Platinum to U- krpt in i!;'<:o • f, '.4 4, .-ir.il 'a I <-\. 1 (nf act). Ii.,::! L». IHLD< <»F i;.\lllAN(.K. 1 f loiKpany, form ■ f, s. 47 jKivvtr of li<|uiilatois tonco-pt, kf., m. '."5, an.! r. H HOAlili "F hlKKiTOKS, S'O I'llU I liil;s BC»A!;l) uF TKAUK. powtT I'f. ovir rejristialion otiioc aud fm, s. 17, 171 powci of, to api'oint insp< .tois, s, fifi, 57 may autlioiisc rompniiy to , haiigo its uamo, s. 13 iiiay authorise lompaiiy to chaiim' its n^istciisl ollii'i-, s. 2:1, JI'J ii:ay liceiihc 1 omjNiiiy to hoM huid, t, Ul to drop limit".). 8. 23 may ait' r foriiji* ajid taVilc A., n, 71 [N B- In tills Itulm " »." ii;fiiti«i Kection, "A. cffrniir^ i:L liluik t>|-f jffi-r '■• V.i- Ai t of ImIT, hi .■■ iiiftttii Kection, "A. McaMsT-iljl- A., ai.'l 'r. iii<-ai.» 'iili'- Vm IN't»I.X Nii. I. II Ai IH AND 1:1 I.r.H. inr. iiiOKS AM' A(< or NTS, lulsitiiatiiiii til', s. I'i'l iiriiiluitioii of, \>y iKTMiii I x.iiiiiii' il ]i'S|K'ctinK coiniKiiiy, h, | i,", |iro(liKtion of, biTort; upccial cxumii.fiH, h. l-jij iif inUipttiiy. (Villi lice ill wiinliii^ m', h. KM ili>jH.i>ul of, iiftir wiiuliiij; ii|«, H. irifi iiiM|K'ction of, liy incmlx i--, A. "rt iN'thliii^' \viiiliti>i-^, A. 'X\, HI of lialiliiiii; idiri[iaiiy, lut of 1S7'.', K 7 ['.>) ti> iii-|m'ti'rii. N TiS t.. ! I' k'"!'t ly "111. ial tic|iii.l.it'.r'<, i. 17 llKKAdI "K TlirsT, |.v ilin ti'i- .uhI otlii-rs, -. 10.1 •ion of wiii'linv \\\< i li'i ), s. S rslN!-.>.> liitois t') vrll, -. l'*l, 1(1 4tiiij,', -. 1«S .. II, ml »h->\ 1 "I II", UOft, llU'l M.hnl. ;i 1 ;il : ^1 ..I. 1 (.jfaitV i< • ' 1-' ,■ A., ai.'l 'r. nicai.!' '"''■• '"' i r I *i8, 1 AILS mN fllAKKS, a:i.iii),'t'imiits as to, g, 24 aviiKiit of ill casli, a. 25 giMunilly, A. 4-7 ( II ;u'rt ^li.Ufs, nil ^|H■^■^.llty (Ifbtt, H. 1'^ furl"' itiirc for iiiiiiiuiyiiuiit of, A. 17 iialiliiv li>, wlirii sli.mr, arr t'uirt'i'.i ', A. ill, ai'liniiN fill', ^. 70 in arrear in ,iv I'o iKJu. t> il fioin ill . i !■ nU, A. 7' if ill arnai imiiilitr not nititlr.! t'l •>■•{<■, A. 17 :.ni; .u! •uiiiiiiai y .us to, s. 'JfJ (.\l.!.> !N WlNIiINC \l\ power to iiiakf, s. 102 niiiil'- el making;, v. ;t;l— 36 gpitialty ilelit.-*, s. 75 Iwliility to, s. 3.'< in ro^i«'ct of \iiipai.l-iip oiipi'.iil of (;oiiipaiiy liiii;'. 1 1./ j;'.ittriiiilc<', s. H), 131 of ilirfi'tors whoso liuliility i> iiiiliniitt'il, ". 5 fiif.r JuK oriUr for, s. rji\ ami r. .il ; .'i'l, 40 ill wimliiig lip voluntarily, s. l-ii ('.') CANCM.I.ATInN OF SillAKKS, .l.t v[ i.Al'ITAL. statu] ill iiu'iiiornii'Iiiii!, s. S ammal ivtiirii nf, «. 'I'l iiii:rtasiii>;, 1-J, anil A. 2<5— 8 )n iiiiliiiiitiil iniiipaiiy ri'j^iBtciiiif; as linutcd, act of 1>70, i. r> ri'ilu 8 9-20, .1 ait iifl- s. \i- IV ntiirn of an uniiilattock, s I'J diviil iiij: aiiiw, CASH, subiliviiliii^;, 8. 21 ihaiigcs in, to U- imtilii-.l to rt),'istrar, s. 28, 34 '•f niiipany liimti.l l.y Kuaiaiit.-*-, .ailing up of, s. 00, I '.U "f limitoil loinpajiy, luUiiij; up of, a.-t of 187i>, s. 5 ■•imris to lie j.aiil up In, s. 25 fti ">B. - Ir; th!^ ImUx ft, ihfaiis s^v.' Wlifi« ir. Lla. k \\ 1* p f«r to il.r Act KX NO, !. TO ACTS ANI> KIT, IS. t'ASTINt; VOTK ut p'inr.il iiu''tiii;'«(, A. 43 ri-.RTIKn ATI'. Kl{ ll'^INlnitlOll, iif iifwly funiH'il i'om|>iniy, «. IS iif I'xixtiii;,' ' '•iiiiKiiiy, H. inl, I'.fJ iiinii r III tt iiiiiiic, wlu'ii iliiTi' liiiN licon a cliiiii^'i', 8. 1:1 'jd li^flit til ilrliuiliil, H. 171 l.'il (if title til sliHirft tir stmk, s. ;tl, iiiiil A. 2, '] of I'liLllil of Tl.4ili', .lUtllnllsillj^ rllllllj,'!' ill lr)>istiTtil i ||ii , , «, •j|l .]. tif cliu'f link, r. .'iti iif list (if rn'ilifiiiM nil rciiui'tiiiii nf caiiital, r. 14 du|illi'ilti' ri rtiru'atcs, lut nf 1877, .1. ij See Ki'liMS IN NVlMUNi; II' fllAIKMAN nf iliri'ctnni, A •■•7 lit jjdiciiii iiici tiii^s, A, no, 40 casting,' \iili nf, A. 4:t of iiMctiiiKM nf ii.ilitnrs Mill! .niiiriliiitorics, Miiiimnin 1 wlim cuihimhv I'nii),' wniiiiil Up, s. l»l, Hi', liiiil r. 4.'i--J7 • (IIAMIIKHS. liriH-eedinss in, s. 83, niiil r. 48 51 (TIANCKIIV. Sit (.'(illU ( IIANCK of rcjiistcrcil nfliiT, s. 211, 212 of lOiniianj's iiaiiic, s. 12, l:t, 2. I7i;, ]% of fnriiis aiiit latiic A. I'V I'.narij nf Tiaiic, .- 71 uiiii.ii«-.t III. iiili(r» ti) lip ifturunl tn rcf^i.stiai, s. 2ii, ;il, Ij ill luintal, .^ij, ."nni«'8 foriiicil fnr, lainl to ln' IhIiI by, s. 21 CHOSK I\ ACTION. 1-nWir nf U-Mgli. o nf. to Mir ill hi.., nWU liailli', •-. 1:^7 ( I.Al.MS a^juinst conii«ny U-iiig wi.tin.l uji, lunnf, A..., nf, r. 20-28 COLONIAL ia;(.l->Tf.US, jMHXtr of 1 i)iii|i.iiiiiM tn kooi>, twi of 188;?, h. ;5 notice to lie ^;iv.ii In ri>;istnir nf nflin. wIuti- k.jit, f s n ('.>) iiiaiiiiir nf k.i piii^;, aiiil re. tiliiatinii of, i«., ». :! ^;{) ro|iic.M of ciiiri.'. 111. to In- traii?mittc'ii ■ ■ ft: i.'retl olli ■ , .'■ , s. 3 (i; liiMoiitiiiuaiiic nf, ill., .s. 3 {»}) htaiii|i .hitics nil shaii's n'^istereJi ■. a ^7) tO.MMKNl KMKNT of wiji.liiin ii|, bv the court, s. 8 4 vniuiitarily, .". 130 of act, s. n, 'ji.i'.i of riilr.x, r. 7tj V 1- COMMITTKK, ill ligation of lowers of directors to, A. fiS— 70 [N n -In this liiilfx " K.' Hicsiis Mctinn. " A." mi'Sim TaMi' A., uml "r. ' lufuni rule. The rftm-iKT^ 111 Mack tyi* rtfrr to llie Act of ItWT, au.l tlie luU-ii nf IMW.J rSI'IA N". I. I" AM-! AM' ;il^ 111 sll.lll lilll' llf, H, 1 Itlllll' lll'l ni.iit of. t. :i, 2W niliH iiiiii'il mimI'T aiitli'iiily nf, n. 17" >■' '"7. a cliai>f;i', H. 1;1, 'JO iMPANIK"' AIU{VNi;I"MI:NT All', p. IM.T Si An; ^^'•^'^ll s I, 1 '"M n;mil-.l-; iMI'WIi:-! SI'.ALS ALT, i>. l'il.'> Miiiiiiii'iii •! wliiii LioiijMiiy ;.. j.t, .V s n cj) I ,.1) reit olli. f, .V, s, 3 (1) .li A., mill "r. ' iiii'i.n. rule. Tl ■ iMl'ANIK? iii« insiiniiii'i Si'.< ISWKIM. ( oMIASV Sii' InsIIIAMK riiMPVSV ; I,IH A'Sl'ltANfl'. I'liMIVWII tmk, il-'tlliilliill "f, X I^l ri'gi>liiiti'>ii hihI 111' Hiporiitiiiii nf new ( i(lll|i.llllrs, W lli'll llri r-clirV, H. I wIk'Ii i>|>tliii|>uiiii'M, wUi-u II sN.irv, H. '.'0.» Wlu'll i>|>ti<>l|i||, N. 1M( 17'.> >\ lll'll llll|M)S-.|ll|l', M, lll»i|i of. H. irU — l'.l,i .lllTt of, M. l".l| -ISlf, ]Hi\vrr til cllilll^^o n.llllr nil, 1. I'.") fur luirtxiHo of iM'iiii' wiiiiii'l ui>. > iiiitol oiiiii>iiiii I's .i'< litin l"!' ti'l, 111 t ui K">r;', [ipl'lii itloii of act t'l coiiipaiiirs rt'^iiliT'il iiiiilirtlif |iri'vioii-i m ti 'if lS',iJ -Ti', >. 11 17X tiiinijistrri'il (•(imiiaiiii'f. s. I'.t'.i— 'joi p'jji-t'Tril roiii)ianii"<. Iimitinl I'V slian l>y ({iiaiaiitf'', s. !• S.-, alMi, LiMiiKi) I ■..mivwif:^ uiilimili''!, s. 1(1 Si'i- also, I'MIMIIIK ('.iM!'AVU.S Miiiii'iraiiilum of .iHsn.i.iti'iii of, s, (1 — \\i aili li's of, s. II — I'i a|i|iliiMlion of taMf A. to, s l.'i aittTillj,' i-uiiititlllioii of, N I'J, ,"•(• Si- ; ("iiSsi irril'iN nam.' llf, M. li, i;t, Uit. I'.'O 111 iii.if;(>iii''nt of airmrs of. .>>i'c Uiuii ii>i:s anii Mi;mui'.i:s iiii'iiilH«rM ill, ». 'j:< li:tt.ility of. s. 38 Stc, also, .NIkmiikus Hut to c-rtiTV on ^u^«in(■ss with li>s tliiii -vf\i 11 m.'iiiliir.<, s. 4S ailtlii'iitii'atioii of iiotii'cs, &(•., liy, s. (14 iliHStiluiii.il 1,1", s. Ill, W.i, mill r. 0.'. --ii7 «iiiiliiiv' ii|i llf .Sii- WisniNi. II' ill liim t, ^tnkiii;^ iiaiiii's of, oil ri'j^istfr, act of I'^si), s. 7 "MI'KmMISK, |"iwi'i- of lii|uiilatoi-< to. s. 1,'>9, Itiil, ami soi- r. 40, aiul foiim 50 iiid .'il With rii'ilitoi!,, m-t of lS7ii s. •>. S,-i\ als >, .\i;r.ANiii:MKS r ONSimTION (>!■• C. i.MI'ANV l«)«iT to altiT, 111 th .f. fi. th. 10 Livii- 111 I'oiniiiiiiii'S loniii'ii inli'r Up' a 111 till' rasi' of otlur I'omii.iiiu's. s. 170, ll''i 1 * • ' ■t, .1. \2. 1:!, .'.0 N It. liuluH liuli-n ••».■■ iii»-ans m-ctinii, " A." nn>»ii< Ti'iU- A., iinil " r " iivi'iii nit'. Tho "■-rer. M in i.Uck !>!»• rcfiT to tin- Art i-f ISCT, niul tho riilis of is IMI.I >(. CONTlt.VCTS. 1 y roiiiI>«iiii;., 8 37 (i'ltis, \i., t'> 1h- iiiciitiuii.' 1 iii pro>).c.ti;^, 8. 38 1. r i.'k^ui' el |iitiil-ii]i .sliiiics, n ;4isti:itiiu df, s. 25 ( f lil'r ,T >nniiiot< roinpiiiiics, ri'ih; ;ii'U of, L A,, 1 ^70, s j^ ( OXTIUIU'TIOX, li.iMlify t", N. 38 rON'TRIISl'TOKIKS, 1 Who are. 11: 1. >,'i-ti-ri'(l 0(iiii]inny, s. "4, l!><) .' ' allrjjrd i out iiliiiti>ry. H. 74 cxrtulois mill iiiliiiiiii.sti!it'>!>. >. 7') licirs, H, 70 ilcvisors, R. 7i> assigiii'is, «. 77 lllislvilliis :\U'l wives, s. 7^ jm-'t iin'tiilt IS, s. .HH III voluntary wiiiiiing iiji. s. IV) iii iiracfiistiTC'l ciiiin'aiiii--, >. 2<>C s.tt'.lliji list i>r, s. "."<, •.'■.', aliil r. UO - 31 2. Liabilities of, ^{•■iiiTully, '•. US ill (iiiiij«nii\ liiiiitiil li\ L'tia-viitc . In; vl;o,c. lai.it.il i^ imt ].,ii,l in, ^ ' l:i| 3 Miicellaneous provisions concernisg, 1' \\ intilii'ii tci wiiiii up, H. 62 may a|'|ily lor iiijiiiic'ti'.ii to stay ai'ti'Mu, he., s. Ti may apjily to .'■tay v\ iiuliiij; uj (.rorreiliii^-i, s. 8',' oiilf! ui>oii, to (lilivi r ii|i I'rni.'rty, s. Im* onler iijion, to j^iiy iiiomy, s. 101 jowt-r to cxaiiiiiit' aiul arrost, s. lis slayiii^' lutiniis a;,'aiiist, wlicrf n^tiip.iiv i> l-ii;:,' wotiiil iii , s. !;'7, 1' •ii'l, L'o'J coiiiiiiltiiij; as to v\iii.linj,' up, s. l»l, 1 )'.>, aii.l r. 4.'i- 17 r\ttciiiliiiiO'- oi', in wiiiiliiig up procciilini;,,, r. »>0— C2 jMittrr of liijuiilatois to luako cotupioiiiiios with, s. I'io li){llta aiiiol'gi t, to 1n' ailni^tiil, s, ll'l' (laiiiis of, ufMiiist .oiiiiiauy, how to 1"' dealt with, > "'' ,7 , I'l (.ills on. Sci i Al I s ill voluntary wiinliii^ tii., IKiWpr of, to apply to court, s \?,^ I owiT of. nmki' iirraiiji<>iiu'iit,'j with croiiitor,, x. i:i.'— 1117. .nil art of ' ■■ .), B. *2 iiifctiiipH of, j«iwi-rto ■.r.iuni'iii. •>. 130 O'NVKKSION. ofshaii's intostoik. s. I'J, '^iS, •::i>. and A. 23 - -JS row. of hilancp- sheet to Ik- sent to ineml>er>, A. S2 (if .loiuiiirnts at n^-istialiou o!!i. •■, li^ht to hiv.', -t, 174 T) of iiiNjMTtors' ippnrt-i, iieiiibers eiititl-d to, s. 5'.* of petition to wind up rifjlit to, r. T if I" (ri^lfl^ \,- , li^'hl to, s. IJ'2 of ri'fii.'.ter of diicrtnrs to !«• sent to rcgiitrnr, -i. I'l of .slK-cl.ll leKollltioli, nieiiihe! entitled t ), s. r.4 of .stati'lliellt in olliee, l i^ht to li.ive, .s 41 of ontries in colonial register to W traiiatiiitted to P'gi>terril ortioe, act uf INM, H. 3 (4) <01M!K<'TinN, of register, s. n.*!, :^f» on Hetlling list of c'ontiil'uforiev «. 9^ of list tif eontriliutorioH, r '2'.', 'lO IN B.— In tliiH Imtex '»." mean* nei-tjun. ' A ii:ii\n< Tililf .\., :«ii.l "i.' iii'-ari'! pili- I' TOfarvii' • » 111 tiJjick iy\i;X NO. I. 10 A I IS AM' IMI.K.-i. 111!) ..rapiilicatii.ii i'< i.cnvil ic^ji.sl^T, s. o.. ,,f.Timiii;il prostviitioiH, s. 167. 168 ,,S'("caiuinatioii of i'oiii)paiiy'H nllairs l)y iii»[io.'ti)r«, s. ...•■■iiiifv f"i. i" f"-"tiiin.-" by liinit, 8. 41 -46 ■7, 51) :i ipital i^ ii'.t p.ii.l ii|>, s, > 8. 11 & 12 rlT'lit-.'--, 5. i:i'-n7, ;i!il '! t'l ifgistercl iitVi''r, :ut uf '■'>u:t, ill !;iiition of, s. 81 for winding' iij" whfie I'lnipany i.-i ro;,tir'''l, .s. ?1 wlii'e company i.s unrogi.storcd, s. 191) ]..iw(>r of, to correct rojjister oi mcnilnTs, I ) onlcr in.siMH'tion of rc;,'istcr, .s. .32 to aullioris>' ii'iiiK'tion of rajiit.d. I V,- ,.; (if, in win'l.n;,' u\< iirocooiliii^'H. in lUaliii'' witli windiii); t;p pftition, a. Si] t.i .si'.t'r li>l of contributoties, s. J)8 to make .alls, s. 102 t.> :ipiHiint li.iiii->, It!, l.''.i\ l.'^2 provisionally, .•*. M, 02 to n-niovi' liipiiilatnrs, k. S»3, 1 tl, l.'io, i;2 to consult crfditor.s, &c. , .■>. i>l, 1 1'.> tofi.x tinif for proof of iU'b'..s, .s. 107 ti' htay nctionij, .^t-. Wforc orilir to wind up, .h. .^Ti, 107, 2'11 after order t ) wind up, .s. 87, 198, 202 to stay procr-edin^'t in win liti>; up, s. 8'.» tu smniiion witiic-iscs, kr.., ^. 1 1.^ to order tlieni to attend iefore special ioT»mi.-*,sio!io'.4, .s. l.ii} to arre?»t aliscunilinj; contril'Utory, .h. ll'< to Older delivery up of enmpany's property, .s. 100 to vo-.t eoinpaiiy'." ;propcrt\ in nOuid li'iuidilor, h. 2o:5 to onler jmytneiit of money l.y i outriloitory, s. 101 t'l order directors to pay d 'ina^i's, r'l'iind, A.-., .s. If'iJ to make nile-, lur wintliii^ up, s. i7ii .-I7'i to direct llrl>^e.■nlions, s. 167, 168 pov-er-i conferred hy act cunuil.itivc. .s. 11'.', 20t. a'. 1 see r 7:J • iilorein^ or li rs of, out ot jurisdiction, s. l-.'2, 123 siiiictioii of, ||ii\v to 1>»> olit.ime>l, r. 4.8 -,''1 ."^••e, lurtiior, SciJTI..VNli, ."^rANNAUIKS 'iivejance of comikiny'.s property, m tmst f.)r, s. I6l li'iw .itl'ected l>\ eiinipany's rej;i»teiin;;, s. !'.'.'> may petition to wind n]>, s. 82 may apply for injuiiitioii to stay actiom, A;c., s. S.' -itt.-ndaiice of, in v indin^^up proeeedin^s, r. 6i'— 62 ' 'U.^ulli'ig, in winding up, s. IM, 14'.', aiol r. 4.''-, 46, and 6 — 'i2 jKjwerof lepiidators to inaku arran>{enients with, .i. l!>\> iiranu'emenis with, on volunt.itv Nsindinjj up, .■». 135— lo7 proof of de))ts hy, > 158, and r 20 --28 liiiin;; time lor, s. I07, and r. 20 111 Stannaiv C'ourt, s. lOtJ \.. aiicl '■ I.' in»din mil- Th ■f IstlH.) 'NH,-ln till. |n,|,.x "n.' m.aiit iivtioii, "A." miMn.i T»tili' A. ani " r. It ri)..., 11, ),!.,, li t_v|«. rtfsr tu till A. t uf l!»07, -hhI Hi* ni\-» ot l*.i». j inun* ri'v TU« 1 1 '20 INPI'X NO. I. in .\cr< ANI« KIMS. rKi:i>lT<)Hs -<•,././,,.(/../. staving; julionx by, wluii' I'liiipiuiy ii 1h in^' wnmiil imi. s, ,s^ -s" u,- l'.'>. -Jol, -JO-J ' ' . . 1 n.ii|iu>iiiiM' \>itli, art iif \^7<', s. 2, mill SIC < 'hm I'imm isi: may a]>|i|y to Kii.y wiinliiii;ii|i iir .•iT'!inj,;s, s, M» ill lini. ri'lili^'s til .I'lllrt' lal'il.il, li-t ut, r. 4, .'^0. jiiitiio til, r. 17 «i]>|iii.siii^, 8, 13, mill r. 19 i>,'iii>niiit <>r jirin'i'i'tliiiLi^, H. 17, .ind r. 10 ( UIMINAI. riH'SK( rilON, lit ilt'liiii|Miiit (liirctnrs, k<\, s. I(i7. !i'^, ainl i. M dSTiiMKH, iif liaiikiiiL,' i'oiii|>;iny, to li ivo iiMti.c of intiii'li'l rr:.'i>ti illoii wiili h:iiit.'l lialnlitv, s. l>!i jiuvM 1 of court 111 ii.ssi'ss. aj^aiiist ijiioitors aiiil ntlicts, s, lij.'i a>si's.!iiiy, •<. l,'i>, uii'l : I'ATK, mI rc;;istiatiiiii uf ii)iii]>,iliii> luiliiril uii'lii lli' ^'-U i.f is.'.ij ]S,'iS, ,. 17i; 111 lonniiiin ciiii'iit ut winiliii;,' up liy rmut, ^. '• I Miliiiitaiily. s. ]:!<) ut ili'.Miliitli'ii lit' I i)H)i>;iiiy, >.. Ill, 1 I'l. an! r. i'') Si-c, ill-Ill. I iiMMIVi hMI N 1 I'LATII. tiiiisfcr iif sliaris dii, s. '21, mi'l A. I'J --l'"i ■tamp clutiisi'U, wlicii >]iair,>. ii^istiiiil ill 1 oImiiI.u i'i>;i.-trv, t t if H^l a ,,- /., I > Kins, pidiif iif, ill \\iiiilinK Up, H. l.'S, ami 1-. 'JII-2S tixin;; ti':ic Im, s. Iii7, ami i. 'Jn iiioiii- I.f priHil, I. 'Jl — '21 \aluiii;;, I. •_'."> ailDWiii;; iiitcn si, 1. "Ji! I lists uf piiMif, r. "27 iiv'iii;; liy miiiit'irs umii r ruiiipaiiy's arliilo art" 'pi'cially, s. I'i ii« iiij; to iiiiiiiliiis, |>ayiiiitit nf, s. lis 7 ', li'I test of iiialiility to pay. iti cas4' nf ir^intficil iniiipuiiy, s. '>U ill iMM- nf uiiri'^iislirc'l i niiipany, s, l! 'ij.;aiii»l iii>iiil>«r, s, 7'* DKKDs. xiTutioii uf, liy aj;i'nts al'ruad, ». ."i.'i IiKriNlTloN < 1 I iiiiiiiaia , 1 iiiinialiy, llli assliraiicr. Sic I. in- A^vfi; <,SC'-. T'OMPAV irs ilisui.illic, M. 'i jiiiiit stuck, M. l"*! liiiiilril tiy ^iiaiaiitcc, s. 1,1 1 y slian-s, s. H uiir('},'isti'rr.l, H. r.'Jt i I [S.li. In tliiH Iii.lij ■•«.■ iin-mi» Hictiuii, ■ A. iiiriiim Tal.le A . ami " r." me«D« nil'--. H'" j nfiTt'niTN III lilnck l)|ii' ufir to IIm- Arl of ibtJT, itiui the riilr» of l^«i».J INI': X NO. I. 10 AC I H ANI» IMI.K 11-21 iv.;;i.s!r.it:..;i «;tli l;:„ito,] itlicrs, s. Iti", y, s. 1,")S ami r. L,". Imiiii! 1'1'1,'istry, v t ■<{ ]^'. i . aii'l •• I.' mfjiuii r'il'.-. Tin' Ut>t. I :FIMTf"N' •/. lir.Miiiiiliiifoi'v, s. 7 i, I'M) i.iut, s. HI iiiitiilitv tn >.iv li'lits, s. Ol III 2<)0 >^i>. l!n 4) III' Jiiint->ti>.l\ omiiiinii-s ai't.s, >. I nf Illi'tlll'iTs, s. 'S\ i)f lUiliiiii y ami ixtiMnnliniiy iiHi'tiiii.'.. of ri'solutiiin, cxtriior'liiiiiiy, •<. 12;» siii'iial, s. ,'il of >|h^i.il liiisiiii-stiiki' imih.'s i.f, ,,!r A. :il ivjfiMrt-, n.'t of IS80, s. t I iv[iiii,'c iiiinu" on rc.^iitiT, .i t of ls-iiiiitiiii'iit (il li.|uii|.itiiri to iiivlitors s. 1: IiKI,!Ni,'!'i;\T DIKKCToRS, .v,.,. oi'li-'iuiij to piy, . lilies against, foii-all in Himlinjr iip, A.'., s. 105, I0« 'IRK'TIOX Ot I lilllt ill w in. ii|i, how t ) Im- ol.t.iiii:- 1, r. IS—.'! hlRKrnij -tf!- of, to be k(>pt by cort.! 1. •'! iil'pi'iiitmi'iit of, A. i», l.'i, I'i -.1) l-MvTuti..ii ol, s. i-;7, I'jA, .III 1 ,. :,i r-'iniiViil of, A. t;.') ii'iiiiiiii-niiioii of, A. .M 'I'.Mliwli'ii.iti.iii III, A. ,'.7 lor otiiii' of au.litor in IJ.inkiii" H'titiou of, A. r>H— tjj Mi|>|ilyiii^' vaiaiiri.i anion ;-i, A. •;.>, i;j iii«Ttiiif,'> iiii.l piiMc-ilin-sof, A. i!(i-71 1 liuiriiMii of, A. •17 v.ili.lity of ait.H of, s. fi7, .111.1 A. 71 lutv of, lis rt-'anls omp.iiiy mt of I S79, ' V •2) Ifl'illlllt.S, \.' i»imitiM to wliu-h tliiv ;iri- luiMi' powers of. Soi- r I \M.IIK-i ll'Tlllv, .\. ili:le^Mtioii iif, A. tiS t'l inako Ciills, A. 4 to ,1 t|M' ri'xi.stcr, s. .'l:! to rt-fUM. to |rj;istfr tliUHtVr, A. ]i) •o forfiil slum H, A. 17 to roiiv.Tt shares into sto.k, A. l-l to iinrcasi' lajiit.il, A. 'JiJ to .siirniii.iii iiii'i'iin^'s, .\. .12 til nil lip vai-an.'i.'s anion^'st tlicins.'lvr^, to "('•il.uc iliviiloii.ls, A. 72 to .S4t ajHirt H rest-rvfil fuml, A. 71 A. '!» «(. rx "«." m.-.ttm ii<>,'ti, Va I:i tin, i,„| "*""' '■' '''<"•' t> 1- titer to th* A.-t of I I.e. '• A.' 1111. -IMS Talili' A., ami "r' .«W7, (Ui-l tlie rules of ima. ] TW 1122 INDKX NO. I. lO ACiS AND Hills. ' '-/ riRKtT01iS_f,)>i/n(«<^f. [owiis ,if — cotitiaiuil. to appoint till' tirst nuiliidis, A. )^1 ctssntioii of, on %Tiii7 for c'tliif tif auditor in banking oowpnny. Src «, t i.f lf<7ii Sif, also, Arioi>r.ME.NT I'lSsOLrilON iif c onipany wouml up voluntaiily, >-. 1-13 (if coini any onli i. <1 to be wound uj" by touit, s. 111. niil r. ilil f>lsTRLn wiialin;.' i;p, v. lOO. and i. CI' M IMVIItF.NltS, A. 7J 77 sft-dliof, ..^jamst drlt d ii' to company by a nifinb-r, «. 3? (7 , l, i arrai:^;cniints as to, b, 24 DOCl'MKNTS, to If sent to ifj.'i,strar on nfjistiation of pxinting ionii>iiui>-. s, ■R.)_!S7 proof of. in winding up, i. 54 S»v A' ( Mi'ST*, liooKs, Is'-ri.. iH.N, rr.iiiircTioN I'OMKIL of r(>gist«r«d i-ompany, •■. S — 10 of uiifgistcrrd conipany, <. It'P (1) FXCLANir fiifoning Kiiglisli iidets in Sutland it Inland, •-. 1:^2, 12'.' rnforiing Scotch or lii^h or-lirs in, ••. ]'22, l'J3 s«c (."on.r KMDKNCK, to bf givt II by I onipany ifgn-tt linj:, tl.at ai l has bicn < onj affulavits bi'forc whom to {•«■ sworn, x. JiH b(.okjs of ( onipany, &<-., tvidence in winding '.p, s. '(.'■•I ugiktfar's itrtiluate of registration, >. IJi, 192, and .nt < ( UTtiticite of sliariK, i.\, s. 31 iiisj'iotiirV rcjiort, s. 61 jro- 1< dings at nn'('tinj,'s, s. ji? of ori!< 1 to !.<■ trifon ftl, s. Til of ordtT for jiayuitnt of .alN, >■. ]0?> rfgistcr of nH'tnl'ii.h Ii.is roj*!}.!! n il, •. iO.'i S.o Stavini; A' tion^', k: KXF.t TTt'K •, tr.iustVr of sliaico 1')', k. "24, A. 12— ifi lial'llity of, tf> Jo iiiafic ■oiitrilmtoriis, s 7'> liiiH fpiliiigs Jigiiiiisf, I'm calls ill v,iiiilim; "l'> '^*-'-i ''• '"•'*> ''■"' IvTKAi'KDlNARV l;l>0I.l.T10N', s. 111. iiul r. i',i, Al.SlKli'ATlON, 10»5 1-F.ES u.'i]i!"T. >:. DS (7.1.1 IIJ4 om]>.iai»-, s. '*)- !^7 •ITION |.,i).iMf to n>r;.stiar, ^u' s li<.I. 1 {ul at), t.ilili's B. anl ',' |Viiy.il)!c in wiiuliiij;-iu» JlI•ol:l•^'lUll^;^, r. 70, 71 lor n'^islraticii el iiun.oiaiuluiii 01 ;ir*irl(s of fl>-.oriatii>n, lor ins)ic> ting ilocuuunts at rcj^istratioii o(lii;'>, s. 17 I i, ') lor p'^'Kitration, wlu-n tiont- pnv«l)l«', h. 180 vt>g\iIation (if, Vy I'lojir.] of'i'raiif. h. 17, 1"! .ippli' atioii i-'l . '• .'in'a!, r. 21 IT.ME (HiVF.RT, li.il'ility of, to 1)0 iiiaJ'- '."Utributory, -i. 7vH KiliFKlTili SHARKS -A of, A. 2", 2 J 1.1, s. i-:2, !!:■; 1 KuKKrlirKK I'l .shares, A. i:-i "f tuw xhans A. il.S ii-R(iK!lV if !-hare waiMiit-, 8. 34, 30 |>, s. 1 .'.J ;, .in.l ,: t • I 1''77, -^ •• -.1: «• 1 ii'KMATIoN of coii:]iaiiifs unilt r t!ie A.; of I ")_', a. (> Sit ('t>MrANIf;,1 InKM.S I In the act of 1862 kccI :bo achcdulos Ikureto "I animal sumumry to l-' »< iit *.o r>j^i'-'r.ir, ,iU', scli«'il' t '■li' .V. iifli,ftM> to hold l.iuiis, at, >i..|icil. 'J, form F. 'f timnoraiuliuii of iisso<.ia»ioii aiul ,nti' lev, 1. For luiiiiMiiy lii.iitfil liy sli.ues, a''t, scht'il. 2, (•):'r\ .V. ■J. For .oiii[.aiiy liiiiitt'il liy (^uar.mti'O, aii«l iiut having' i,i|it.il iliviiU'ii into sh.irt's, act, srli'-ij. 1' f orni M. 3. For roiii|>.iiiy liiiiitfil liy nn.ir.iiiteo, ,wul f;aving c.ijiit.il tir. ,i|. il itito shart's, not, scliod, "J, form C •<. For tuiliiuitutl ^oni)>.iMy luviii); c.ipiC^d divided itifo sli.iri's, act, siluil. ;,:, form 1>. "f I'ro.vy ]iuper, A. 51 "I itatoiiu'iit to b«' kf|>t in oMl. I's of limit-d baiiWiiij^ and ot!:ir . .•nn.inii'«, act, scIuhI. 1, form D, 'jf tiuusfcr of ghai-fH, A, i* iwwer of Boaul of Ti.ule to .ilttM torin-i ui >clit'tluto to ait, >. 71 .VH III tii.n litti ex K, UlKAJkH WvtiOll, Knu-J ui l.la^k t.v |« ixU-t to tin- At of l<07, .in.l tlw rtiK-i of 18W. J tiiraiiH TaMe A-, .in.! " r. ■ iut'.i:i» riiU. Tlii' 1121 IN'MKX NO. I. 10 ATTS AND ntl.I.S. 2 Of winding up proceedings given in the ihird ichedulo to the rules .iilvitii .iiiK-iils, ' of |i(tilu)n l, \n. 1 of onli r to wiinl iiji. No. Tp of tiiiif Mini ]Anii- lor a]>ii.iiiitnii lit of olti.Mul Iii|uiiliitoi, X... ij ■ •<"a|ij)oiiitiii'iit of ot'ii. i.il liiiuiiliitor, No. 15 for (TolitorH, No. in of iiitcllilrtl (all, No. ."j.'i of iiu'ctiiiK of criiiitors or < oiitiil.utorics, No. |.', nMiil:i\ its, verifying |M>titioii, No. 'J of ."ttirctics of oHii-i.il li(|iiiil;i!oi, No. 11 of otiiii.il liijuiil.itor as to ilrhts jiinl cliiiii.t, No. 17 of cri'ditor ill iiroof of ilitit. No. I'l iiisuiiixdtorli.stofi'oiitrilnitoiii's. No. '21 111 siipixirt of siipiili'iiitiitMl list. No. 'J9 of .srrvice of iiotici. on roiitr!'-.;lorics of tluir hciiii; ou (lie '!>► No, 'J7 ' ill .sui>]ioit of ]iro))o-iii! for .-.ill. No. .'!;? ill .siipiioit of ai>iiliri»tioii for lialaiict! order aj^iiiiisl conliiliiUoiiis No. ',\A of .siTvi'-c of Ii:il;iliC(' OriliT. No. -42 of noil iiayiiii'iil ot niom y oi'lcivd to lie pai'l, Nir, i:; ii]i|M araiiir lH>ok, No. .''i,? a]i|>i)iiitriii lit of jniixy. No. ('! rortifioate, a.s to ili'Uts ,iinl ( laini-i, N.i. 'J'J of .sctllfiiicnt of li.st of I'oiitiiliutorics, No. 'U of CoIII]'.iIiy lifill;* colliplrtily Wollinl Ii]i, No. I,', ol |>ayiiiiiit ofiiioiiry into ill.' iiank of Kiiijlaiiil, No. U 'Jiaiinian'.s nport of ii'-ult of iii(it:ii;^ ol i nditors or > ontrilnituri^ No. 4.S ilirt'.tii>ii to ojH'ii ai'.'ouiit at lljiiik of Kngliuul, No. 11 li.st of . ontriliutorifs, No. 'Ja, ■.'!', iiO iiii'inoi.iiiiluiii, of a|)|>2 to (c>tii|ironii.->i'. No. ,'.1 to aiccjitaiiii' of lulls, ki'., No. ('.» to aiiiKjiiitinciit of solii itor to ollii ial ijiiuiiUtor, No. IJ llotitl'S, to .n-.lilors to I oiiii' ill ainl |irovi', No. jo of allowancf (if ili'lit. .No. I'.i to attciiil aiiil In p.ii.l, No. y.) to loiitriliiitorifs of .i]i|Miintiiiint to settle list. No. 'Jil lo Ik- serveil with j;cni ral or'lrr for call. No. :!7 to 1h' (>ii>lorsi-il on or siiviil with oiihr to jmy nunii-y into tlic Ih'A of Kii^laml, No. JO of nu'C'.iii^^ of ( riiiitois or I'oiittitiutoriis, .No. -15 oi'lcrs, for »iiiiliii;4 ii|), No. .T, 4 .•>|'|iiiiiitiiif,' olliiial lii|iii(lators, No. .'*, 9 foi jiaviiK'nt of iiioiii-v, iliHviTV of jiooks, X>\, to tilt ollii'ial lnju.- .lat ir. No, l:i on afijilicatioii to vary li.st of .■olitiiliutorirs, No. iVJ lor calls. No. Sti for i);i_uiii'iit of halanie Jiu- Iroin . ontrilnitory, No. 31* to ifisSolvc I o|ll]lilllV. No. .'itf l»roiiosi«l to a|i|),)iiit ollii ial lii|iiiiiutor, No. 7 reeof^nisancc of oilic ial li.iiiiilator aiiri:Mi>i;\vi);\i, \ii^,ni .SIIIIIIIHiIlN, Inr illtrUilid (mII-i, \ii. ;tl tor |MTsiiii,s to iitti'iid to li.' . T.iiiiiiiiil, N'n. ;, I -!i|'|'!' iii"ii!,il li-i*. Ill' .■.iiilnliiitui i. s. V,, -ji.t :iii 3 Of proceedings for reduction of capital given in the schedule to the order of 1868 ,l.ivl.■rIi^^nll■llls, ■ >r pri'scnt.ition of |iititii)ti, No. 2 nf list of rri'iiitor-). No. 6 o| liiMriii;; of pt'liti'.n, No. 8 Scr, iii/i-'i, S'lVUi^ aflidavits, virifviti:; list of ii<(litors, No. 3 wrMTvici' of tlotlrcM. .|,I)U, ^V, .. uild-T r 11 No 6 li-t of.r.Mliiais, No. 3, 8 ' ' notii-i -, ti) civ.litors ,H fo iiiiiouiit of tli'jir .Icbts, No 4 to civ.litors to roiiir in :ui.| iirovi- thi'ir I'l. l,t., No 7 S, s. 7C, '■f'iirrav.,1 .ontributoriM, i>ruLvt.liiios a;,Miiist, .. lo:-, lOt! H'-DAND. tniii,f,-rof >l,.irrs by, A. ]:?- It! Iialiility of, to t>y nuuli- (.•oiitribiitorv, >. TS I'KNTirV OK XaMK, I I'lliiliii.'.!, >. 20 ''li.KiiAI.ITV, "! »nn){isl,.riHl coni|mnv, ^. t, 210 INAlill.lTV T.. PAY I)Kirrs, '■■^^ o;, ill ciiv" of ic^i^t.n'.l coiiiimiiy, s. 80 uiiri'^i-itfrt'd toniimiiy, s. ll un.l.T act of lS(J-.>, s. IS "fi'xistiiij,',oiin,ai,i.'s rf^'isteriiij; uiiil.r act, s, l;il f^Nrtwr,',','! laht'!"','"' ■',*•" "'"'t"" '"■<"'i"". '• 'I" "'«••"''• T..I)lo A., m. I " r. ' m,..iM% rnlr 11,,. llJf, I MUX NO. I. I.) .\( I « AMI ntTK, <. .iili:,. it • (T, s, 18, 191, ISi'J wJ'.cic iiniiic li.Ts I'l'di cli.iii>;ril. s. i ., .'il li^lit to (loiiiuiid, s. 171 (.'.) . IN. i;l ASK (»K (AriTAl. AM) MKMHKItS, l'(.i\.i t) iiii'ii'ftM" tlimi, s. \2, ;iiul A. '^U Jf* iiii'ii'i' i>f i';('Vi'asi' 1(1 lii> );ivon f'l ii'^i>.ti:ii', s. Hi on !rg'^tr;it;oii of iiiili'i)it"'i| rniii|iniiy ih liiiiiUMi, a^ t ol' l*7',i ,. f, lNi'N"T!.i\, til 'jiy .ii'tiiiiH, ki\, nftr>r ptition to vih.l up, s. 8", 107, 2i| nfli I i.i.lci- \'i wiiiii ii[), s. h7, !'■)'<, 2iiJ IN.-'I'lrTldN. of do' Miiu'iit^ at ir>{istlrtti.ill otti I', .' 171 (") of C(.'ii:j. iiiy's ai'Oiumts, A. 7^ {•(•i:!iiif5 wiiidiiif,' »ni, s. I.li", a'i'l i Tl '_V i:i.-i»' loi.s, s. fiS of ii/;i>t«T of nu'iiilicii, s. 1*2 cf ir^isIi'Vof i)ioitf;nj;r.s, s. 1:1 of stnli'inriit to l> ■ kv\<\ in olH.'", s. 14 of ilivuiiiviit> irlatiiig to w in liii^^iiji piocot'diiigi, s. l.'i, au«l i. ''iS IN. ri •■ miis, |hW( ) I'f Ihihi.! to ji]ijioiiit, ;; .''•1, .*i7 lK niiiHiilit, s. 0" |t.>\\ir.'< fif, » f'S, CO i.-l-rt of, K r.'.i, CO to lie fvidoiu'c, s. 01 CX] • l..sr» if, fi. f'fl IN.-il^llANCK COMPANY, il. l;!iitioii of, in net of ISt'rJ, • :t iv„i-tniti'in (f, s. 200 st i' ii;i nt tc l>c kept in oftiii "f, si) S( • I.irr A-sri; \M i: C'liMi'.VMi.-. O'l 1h.iii! 1 'I'.iidntorn, r. ■ID iin i.\Nii, iii*^ r. ihj.; lii.sli oiJtr-> in lii-hnl or .Scytland, s. 1.2. 12! eiif iiiiug Kngli.ili or Scot'li o d' i in. s. 122 12) He-' CiiilsT .InlNT lIOLDKKs OK .sHAl{h>i. ftr-.' -n list iii.iy (^ivi- ri'.ci].t ,, A 1 tiititlt-d ti> voti', A. i') to J. 'vivi- notices, he, A, 'J-i J 'UN ;• ,sT,H K (OMF'ANV, ilcfuiitioii of, in a^'t, k 181 P« iif i.il |.o'.viis of, h. 83, nnd i. 7 !, 7 8c. ruiiir , .HlJil''lAL NOTICK, of ir;:iatnu-, ^c , s. 12,'i, l2'l I N II I.i (!ii« I iJfx "(•.■■ nu-anii nactimi. ' A, w -itK T.ibl.- A., iiii I '». ' ui'Miu r'.ilv'- T^'is nf. I iiiK-4» In lilack t;r»e rtftr tu tin- Ac t of 1S«7, aiul tha ruins of " I or 1W8.J IKHEX No. t. I.) A' IM \Nr> ll'T.ES. 1127 fr,ff t:omi>.ir.it;.i t,>i li I'l, n. 13. 21, 191 form of liii'U'B to holil. .^clii'd. 2 ('>f a,t>, (rm V. ful.' of, in wimliMg in>, r. 3i I.KAVK TO I'ROSKrIJTK AfTloN'-;, k.r , iiow t'» lu' olitaitU' vif !u"i!iiH':.i of i:(.>inpftui<'s foriu'' I uii l-r tli'j act, s. 'M if tu'-mlwni of limitcil iniiikinif i'');iii>,i!iy, in r<,>!ti»*i/'. of in uotM, act of 1S73. !». <» ■:f iti'Mibers of company liuiit'.'il Iiy i;uir.inte>' to ['U tii> ■•iji;t il, s. 'jo, \\\ wluTf liusiiifsj i.H rarrifl on with l';--* tluti -.I'Vi'ii m!iii!>'!r-i, h, H wh>>ro till' \v.>nl " liiiiitod " is not ttvl wln'n it o'l^'it to 1)';. ^. \i of ilirertor-. wh'>n unliiiiit>''l. 3. 4 8 S.'.', fi:rt!,.T. rK.v\r.iY UA:;ii.irv. c)tn[Miii''> with liniitcil or imlimi'oil. S'. t'oM .VNIK'H, L MITKli CuMl'.\Ml'.4 LICKNCi'l t.> L.^I I !.u; Is I'fwcr of Hcirt! of Tr ule to i^rmt, s. -^l f ... (• of, s. hctl. 2{of a^ IK t.ini F. i.IF.N, ■m l->ok*, .t,-., tlio pro Jfci.^io'i of ninjstion.s .ns to, in St;iunai-ii;>, >. 11 '3 :m. ASi»fR\NCK. COMPANIES, ani.i'.^-iin.itiou of L. A.. l.H'i), .-.. 11 ftVt'ct of, on polii V hoMiTi. !. A , 1^72, s. 7 statonu'iits to l>i' nitttlo on, I,. A . \-^7'i, >. 1' .!-eil of -i-'ttLment of, t^. W' (.lint-I. 1.. A . I-;'). - 1 ! .'.••Iiniti.-:i of, L. A., 187n. n. 2 'I''[xMit to I'c nwiilc \i\, L. A., IS'". .'». i : F. A., l-^'J. ■<. 1 ii')ti:ei» t'-. pdii'v-lioUlirs how sent. L. A. M7'), .-.. 2) j-ultit'-. tor Moii-runipliiino- with !t< •. I. A., IS7'\ ••* H f'T faUilyiuK stfttciii.-nts . •., .s. !.» how lecovi-nsd, ib., a. 20 red.iaioM ofi-oiitnicts of, L. A, H7'\ ■>. 22 f-Ii^r'-'iiol'li-r.-* in, list to he k>'pt of, i'-., .t. 12 .st.it«raeiU< to ho luiule ly, I,. A.. H70, s. .'',— S topifs of, to he ^ivon t" ••liaicholJ-'r^, i •., ^. 1 1 fvitlenct' of, ih., s. 17 fjr:".sof, L. A.. 1870, M-lieUile.* iiltcratioii of, I, A., IS'o, s '.» t) he .■(ij„n<'il ami i>rintotv\ tl''i>.is't 'il v.it'.i IVvirl of Triih', /■''., ^i 10, .in.l h. A., 1.S72, s. :l to l>' l.iiil hufoic IVrliuiiMit, 1.. A., 1-irO, -. Jl a;; I 1. A., 1S72, .s. 3 mav he trausferreJ to rogi-^try of joiut--.took cinjpinios, L. A,, 1.570, s. 1(5 N B. -Ill till. 111, lex '•«." mMtim (»I \ NO. I. Til Aris .\M» lilTEK. I.IKK .\SSfI!.\N(l. ( oMPAMI-y— ,,„;/,HiW. tiaii-iirliii^j nihci- laiMiK -1. to kri)i life hnu\* sriiniiifr I \ ]s-,i i nii.l I.. A., 1)*:-J. h. li • ■ . ■ . ■ I, trillldt"!' Ill !.U:«1IHSS I'C Sri- AM.Mi^AV M|i'N vi.liinti. II i>l jiiiMiiiirs Mil. I polii ics •,•■ I,. A., 1872, s. .'i, nml mI.mIuI,. j viii'liii)^' lip 7ii, >. "Jl nl Mili--iiliiiry i iitii|jiii}-, I.. A., IST'J, .'..4 I.lMITr.It ( l, will II liliiiti il 1 y sliiiiivs, s. S I'V K"""t"'<'"'. ■"• '•' p<'Wcr t('l of liiiilt;:ilp'S, Jf. tl! aitili s 111 .isMiriMlii.il it, !«. 11, l.'i linli;liiy 111 iiHiiit'i r^ 111', ^,'ri iinlly, s. IS t(i j)»y iiji fii|>ifal will rr r..iii|.aiiy is liiuiti.l ]\- ^'iiaiaiitri', • |m , ]?,\ security for coNts l>y, ». ti!» M.MITKJ) ItANKINC. (••.Ml'ANY, lialijlity 111 iiirinlirr«. of. uitli rc-ijrrt to tinti'N, s. 1.>>J n. 'til IS 111 1>.' ^;i\iii l.fl'oii' Il jjisii.'iii.in of, .s. \<*ATii|;s, 1 Official, in winding up by the court, a[.i".iiiiiiii lit i.|, Is .■..Hit, .■- '.1.', aii'l r. S- 1(1 s<-ciiril\ to lcj;i\(ii l.y, k. 1''J, ainl i. 10 ]iriivisiiiiial, s. s^>, i'-j, Hiid r. l.'i, .'.;• rcnioval of, s. t'.'i ' uiiiiiiii'riitioii ol, , 1)'.' tit Ktip iKioks of ai Count, r. 1 7 'I to iiivi .sti(.;.itc claiiiis, r. U'J to iii.ikc out list of i;oiitiil.iiti.iiis, r. 'jii, ;;() to |.iiy iiioiiii !., \i., iiitii Itaiik of Kiiglaiiii, r. ; (', ;17 to kii)' lil«" ol ]iii.(<.lmt;ii, r. f.8 on ti'iiiiiiiatioii of wiiiiiin^' up, r. (i.' '17 to t'lvi- ii'j,'i.vtiai Doiiii- ol oiiki to (li.s.Mtlvi', s, 11.'. 11;{ Jli.VtMS of, Kcirially, s, 9't w!i If tfnii' air liiorr tlall flif, >. !''2 to HI I xvitlioiit the saiH tioii of till' lOUH, s, '."1 to appoint .vilii itiir, h. 'J7, an. I i. I'lH to etliTt con. promises, ». l.Mt, Kin of iinrit;i(itere(l comiMiiies, n. '^03- 204 or 1. ( f. 1 .!• li\«rv of piopt-rty to, s. JOO 2 In volnnlary winding up, .ij'p.iiiiiii.t hi ol, >. l:n iiy till' court, sill ililr{,'aiion of, to 1 Hilitors, .s. l:l.'» ilfiit of iircj{iilar ippointiiifiit, !f. 67 ninoval of, K. 141 !ii!ili(.' lip va.nmics in, -. 1 10 n iiiunciaii.in of, h. 1.i;s ^3) to fihf ari-.iiiit of their jiroceeililigx, .s. 1 l"J to coineiie iiintiiif; to roiisiiler their ai i . uiit, s. 1 '^ to repoii inet-ting to fegistnir, N. I4U IN.H. Ill tl.is lu.jtx '-H.' nKiitit ii,..ii.>ii, '• \. Ill, ■.III), T.illi- A,, .11 il "r. ii'.(.iii> ;'i'i'. Hk' »t;filtuce» ill Mack lyje leftT to tlic A. t ..| l»r.,-, ,ui.l tlic itilrs cf IW*.) 1S7C, .>.. .'i, mill M l.iMiir 1 I itiii \'y >.'iiiii.iiitri', • IM', I'll IM>I X No. I. ,., \^ ,s ,\s,. l:l l.i.s. |,Ii,i( II'AT'ilfS ...„/,„,<,./. 2 III voluntary windinfr^p -,.„„/,„„,,/, (MjMrrs (.1, -rii, rally, .,. I:);t, |;|,-, to .S.II IniMJiicfv^ nfi ,,iii|.aMy, h. Id;, ]i;j I" Bi'|ily t') idiiit, H, l.'ts til -llllilliiin till rtill^'^, H. 1,'Jii 3 III winding up iubjcct to superviiion. 'i'l"'i'i"""ii "I. V I.-io, i„2, .,i„l t. s-]; \"i\\rr- lit, N I .^ I IIS rKNDKNS. ii.;'i>tiTiii>{ petition to wiii.l ii|i lis n, >. \\\ l.|s|' (,r n.NTKIiiiTDIJIKS. Mitliiij; iiiiil VMiviiij;, s. '.•><, ■•!•, j,ii.l r. •_".) ,!i III \iiliiiit;iiy uiiiijiii^' ii|i, s. l:!.t I'lIM of, Mc Iho nil.s, .silinl, ;!, No, o;,^ ._,,-, ,^^j I.WT lU' tKKMiriiF{s. Ill |'r.i,iT.iin;.'s to ri'.iiiio raiiii.il, s. 13, r. 4 8 I hi I If M KM I IK US. tliity til k(('|i, ». '.*.' t" * ml luiiiimlJv to ii''istiar s •'.; •'- iiisj... tioii (if, ». '^2 ' .■-,-( •Sit liKi.lslKi: :.iNATi' .\n;.\ii;Ki;. II iiiiniltrr iii.iy voti' fur. .\. 15 1 1'JD |.- A , .•■I il "r. ir.cnis I'^i'. H'' i.nww.l MAN.\(.|..\IK.\r, "InHaiiN lit , ii|ii|iaii\. .<• ■• | 'iia:i ioi;!(, Mki;iis,.,, Mimmii! lAVAl.Kl: l'ii;i:(iiii;.-( .\!Ai;i;iA(.K, tniiisl.-r of mIuiii'.s on, A. I.; ]»; .M\i;i;n:i) woman. Iiil'ilitv ol, to 111- 111,1,1,. i.iiitril.iiti MKKTIMi III fniitiiliiitoiii |H>w.T of Iii(iiiii.itoi> to rail, s, !;{!» Ill ciiijitois and «oiitiil.iitiin.s \\l •>•• !'l, UH, ami r. 4 1 i nil ■• .iiijiaiiy i.-, lifiiig wimi;! iii', to .iirisiiin rt'iKirt of li.|ui.lator, s. l |2 ('f'illriti.rs, A. <;»; 71. Srr I kI im-iiilii-r'<. 'iKii im: I11-.1 K'H'iiil. s. 39 iir.liiiaiv ami i\tr.i,.|,liiiai v, .V. :;i liiililin;j of, A. 2l» ;j 1 t" lie liflil i.ncf a viar -, r |iowir ti, imII. 'juorum, A. :t7 ''-, mil A. :j-J .-SI iil,joiiniiiiiiit of, A. .'!.■<, II 'lis.Miliitioii of, A. ;!•» ' liairnian at, A. ."Ill 10 bu .sint ca.stinj^ vote of, A. ^'i !H8 to }■,. tnuisa.tiii at, A. 3r. ,17 uci-ouiitM to ii.. laid li,f,in., A. 7!'- <1 auditor's tviKiit to 1m. laid li. (,„., \ .,, '■^ I). -In ti liit iiulcx " ». ■ I «^-n.« i„ „,.,;:';- ^,^ --;;, t;'/!-'i^;.^- ■■"•;«- Tal-l.. A., am. •• r Vii.' n-f.-r to tli.i Ai t of is«f, ami tl « rulrrt Iff |si*. ' iiuMiis ru!f. The ll:u) INDl X Nu. 1. 1') A( IS AND Ul'I.r.S. (1 lllrllll't'!'^ — fii|l/i/il'' •'. iniiiiilo of, h in viiliility I'f, h *i/' H'Sdlulicii- of, A. 4'^ ( xli-nonliiiiiiy, »>, I2U K|ii.iat, wlinl i ., H. M t" Jh' iii'lilii'il ii M'xiNtinr. » t>^ IIICIIiImI illlltl'il !•» CIJ|'y llf, n. 01 M|'Oiiiil l>nsiiie«» lit, A. iSi> Votes lit, h. l>-2, iili.l A. H -r.l i-i;, A. «'.'. 4 1 p.oxy, A. t"* M tii^liiij;, A. I.'i jiov\i'i> vf lii'iiitxis ill j;<'ii,t.il intf t'l;);. |i. I'll' 1 (.iiistifiitioii 111 1 oiiiisui), s, U', r I, aiitl A. ^'i ;il'l I" Itltl I lialllC of ('<>lll|iilliy, r>. \'i \" it|.]"iiiit iii>|K tli«i>, ■• tJO |i> li:ivi' roiii|miiy wnmiil i;|', ». "'.>, I'iii li< ii|-|Kiiiit li<|uiilul(>iK, h. \.,i (■'!:, \iT' to rij;istri cxistiii;; ioiii|.aiiy. ■♦. 17l», Inn, )'»(> to tli>|n).si' of (oifcitf.l sliari's A. 'i^> to loiivfrt sliaii-N into wtMi-k, A. li'i to (•pjioiiit iliirciorh, A. T'.' I" li\ tliiir ii iiiiiiK iiUii)!,, A .' ( !'■ iiK ri'iist' or ii'ilucc tlu'ii iii.iiil' i, A (il to K niuvc tliciii, A. CI \'' dr. lani ilivuliiul~, A 7 i ['■ iH'i«jiiil auilitoi', A. I V lio nil', ».. 23 l-.iiii of sli.itf warriiiit iiia> t. '^w , 8, 3 3 iiiiiii:Hl l-t of, ft. M, 'il ll-gi.stti 4 ri-iiiu-tioii of, to seven, s. 4b rij{lits (.f, t'lall iiiietiiig'-, . r., uikI a. 3'2 -ill ill f,'. n. ral iiirctinxs. Sf MKirisni ri;{lit.> of, Ij nii'ly to ll.iinl of Trade to a{)i.«>iiit iU'jMvtoM, ». .''", '7 to ii|i|H)ii,t iii^iHctoi:-, *,. 6rt t'j lia\c copii'., of ie]ioit • < f ili'iK'itois, s. Tirt to iii>-|K'i I mid havf coj !■ ■> ol re>;i>ter, .^. 'A^X to (ojiy of ai li. and iMTiiorauduin of awn iation, •> I'.' liaMlity of, s. ;)>*. .See Luiin iik-. I lirehase of ilitelest of, Oil / .ilc il; v.iiiliug llji, s. lOI, \<''i i-.Tvi'.e of I'.uti.r on, A. IT) '."7 MKMuKAMUM dl' ASSOCIAVH O;, ... fl IJ \sl,..t !'■ If stated ill, 8. 6-U' et).-. t of, ^. 1 1 nltfintioii of, ». 12 as to lialiility of diiett > .. a. 8 «.') to ledui tioii of eu|.il iL ,S, 10 ItJ «.s to MiUdividilig 'liale-. s. 22 PXeeiltii'li ol, s. 1 1 ri-^i«ti;'tijii of, s. 1), 17 I V.B. - III tlih Iii.Sci " v" 111,-iinii »i(t..!ii. '• A •■ in • in* TMe A., iml " r." mMB« ril-. Tlia nfereiifej ii: Wai k !> j>«; rrfcr to Uic Acl of IfxJT, ami Ihi* nilM of 1*>8 I fNliKX Nu. I. I,) ,V(. ■* AM. Ul l,I..H. liUi MIMOU.^MirM OF ASSOCIATION'-,; ...^•,■„../ MINT., im-lliliei I'lititliil |.> (oj.y of, H. 1!> f.iimt.iif, M linl, 1! (.'rri.'l), I'oiti . A I> li.'ii •ill, Jwit»i..ii on f|ii.-iii<.ii« of. i:, StJiiuary I'.itirt, •.. 11.' VIMViJ COMI'ANV, wlira li. lie rr/^i-l.'li'il i;inlc .nMcd tu, s. 10 f.'t:; ,' , ..liil.;irii.'.i.. ». l'j> of iMih. iitioii II, it for |. refit, 8. 3;J NA' ts '.IK.MMKH.'" 1 tlif rt'xi-'tii Til a:.l in aiimial lii.1 .s.iit tu tlip r.'«i, '•'> k., iiiJ "r." mf5B« rilv Till N n'K.s I ••-'!M>-l'rv, ''.V limit, a laiikiii^' '1' ':iy, lul'lity ia r,«,j.vt of at of IS f'.rm cf ii.iii|'iiii\'s, 47 I '>"(r tf liijuiiialnr Id m,' s. !•,'. (* N":iCK. «H of.. ill, A i (•' loit-'Xiirr offliaifs A. 17 !ccf(liiij.'s ;;ciirr!illy, i. I'.i' iVl Ml vice of, r. ti.'l, <'i4 i!l ]lllK'(P(lillJ,'S til ll'lllU'O 111]i|Im1. (if iiilciiticn ill ii|i)i(),si' |ictiiinii. r. 17 (if litMiiii;,' )u'titi(iii. rr. 5 .III. I 16 to It m ht to . nditois rr, iii'l 10 uinli'i I.ifi- n>->ur,iii( (• i oii.|iMiii(> .ii t. l'^,"ii. h w N.nt, I. \ Sci' Ai)\ i.iii i>i.Mi;\rs M Ml; J^li-.ltist li-^ril llUlllliCr of jicI'Mins ill illlli';;!-,!! n .] coliiji.ll;!... IciiNt h\.'.^\ iiiiiiilicr ill n^'istciTil 1 (iiii]iiinirs, v. i\ «lian'> to h\' iiaiiilMrpil. s 'I'l not lu'ii'Miiv wluK.' riiiii>iiiiiv i>; imt f< iiip.l ii;i !. i ili I'll Ii K of r<'v;i.stnir of Joiiit---tix k ( piii|iMiiir^, s. 171 of i'liiuiiany, to Ik rij^istircil, ^. ;)'.», -10 jKiWcr to riiuiips ■*• '•■'I I. '--'I'J ri'j;i>itci of mrinlxrs to Ic kcjit at, s 'Vl XvUxAvX of liK it;„'i(H(s to lie k( |it at, >.. -I.i rt'fji'.tiT of (lirci loi.s to Ix' kcjil lit, -. I.'i M'lviic of notices, \c , til ( (iiii|ijiiiy at, s. til! htatcliniit to 111' k'I't ::i, li\ ."ilaill i.'oiiijiui.|is, s. Ii ulll' lAI. ;.l','ll|i\T«i|;s, >■ ' l.ly: II' \ I.'I;-. , H.'.i Wimh.m; i !■ o!;!«m:> hn i;i:ih( int. ( Arnwi. h. ll (fc l.^j IQ r. 20 I'.Mli I!' r.M'ITAl.. icilii ti.iii ol, liy iclaiii of a. . iiiiiiil.iti.I i.iof.ts, act of !'•';'», «. :; r Aih-rr siiAi;r.s s. 25 rA.><.i!!» r-i''. Tli' rcTi n !..<-ii ill I'lisfk t^ )»■ trfvi t i tlic .\« I of \^>"! , Bint llir rulfH «r \*i>i^ I INI'l \ Nu. I. I,, .V( r.S A> Ni' i;ri.i> 1 l;j:3 AST Mi:Mi;i-.i;s. lial'iiiiy uf, H. ;!.S :.v.\f.Tii-s. iii-'ncrv of, s. ti'i .ippliiiilliiii, .s. tit) mil' r l.il'- US'*!!!',!!! '■ ''"iiiiMiiirs a !, f. A , HTi 1 ,-. ^in; 'II: I^ IIP ■ 1 u; i!' Ar.TV, l"l- net li'llisl.Tilli; r"lM|'.Ul_V, .^. -.'lO I'll- iml ii't;i\lfiiii>; cillii r. s. :\'j f'T Mnvllli,' "11 'I'l ■.iii.'ss witli Irsi (lia I'T II"' li'.l'liii^' iiict'tin;; wif.Iiiri f-ur in .-tli.s a| 8. 39 I'll lal-ifvili;; l»."k^. \' .. -. UW! 1"1' ll"t ),'ivill;,' lli'liiK.T r.'jiy ,,(' n,, II M'Vi'u iii'^iiilifr-*, s, .JS T K'^'istr.itioii 'if 'oriiiMnv, f..r iKit .'iiil^iMJi iiii; iiiiiMit4- III' ii|i I'l ll"t ,!;iviii},' iiii'iiilirr .'..py .,(■ sjiciil ivsniiit iii"i:ii|.|ii;i< nf ass'u;i,ui"ii ;up1 .,:ti if'iu.iii;; , ,i|iilal, 8. 18 I"!' II" I- ■ in;; |'l"|..l \,-jilstrV I't llirllil...|-. I'>II. '> '!• i-'liisiii;; to iiil"w rf^iMvi; ,t,-. . t" 1„ lor ii'it k'ii.iii:< i'';;ist»r "f inoit. 'K'" ■t allow iiii; s.uiif f II ]„■ iiis[i..,i,.|, m. ( ii"t k I'lii^' r.':,'ivt.r .il'lir.-.t' l"i ii"t kcfpiiij; .•.tat.'iii.'iit ill ..(lie,', s. I J t'.r rrrii.-.iii^' to Ih" cxaniiniil l.\ iiis|.ert< for not iiro'liiriii,; I.o..ks, .Vc/t,. in,|«.,toi> \' -,■< ,;.) ' r not USUI),' tin.- \voi,l •' limiifil," s. (•_' f'T !i"t v'li'liii;; annual list, kr.. I l'"r ii"t Kiviiik' i>';;istiar n"ti .li^s,.h, ' < ] ]■{ ;;n li'iill.lal'.i- lor i,.,t |.ax ii,.^- ,„,„„.y into tli.' liaiik ..f Klii-lalul r !..riK.'iM'iiatiiij,'otlH'rs. 8. ;i5 o •""'. < f"l i'li^'taviii;; I'lali's, ,v. 8. 30 f i-..iK,aliii;. nam., of .r.lit... ..„titl'-.| t'. olij,. t t.. iv.lu. ti-n ij'it.i i'KIUl'KV, -. l»if) tKli>uNAl. KSTATK, •-liaii'i arc, s. oo "f il'v.a'wil contrilmtorv, prm-'-'li 111,' a^aia^t, >. 10.',, I'jfi ITION. Pl'Iiirttions ill vviii'lin^' ii|' .co to !»• nuul.' I.\- i. !>.— I'l wiiidinj; iiiv liy til.- loiiif, St. .sj, „ii,| , ] - »!i'> liiuy I'li-sent, t. s'J ill t') I'oiiliitmtoii. ,, 8. 40 "imiiifru'.s wiii'lin^j ii|,, s. >J ^lJ»yiIlK 'u'lioiH al't'T, H. s5, li'T, 2oI Milij.''t to siiiHrvi-ioii of court, ■, 1 1^, ml r. l — ' i^-Ki''''''i"K 'i^ It '"'i /'• .I'A'f-i, s. 1 1 I li.'iiil I'lv.iti '"K "''. r. 1 '"K. 1. i «Tvi ■(■ of, r. ,{ v.'riliaition of, i . t I'l i«l't t I) r«i|i|i'H of, 1 lllolionofrapitii, 8 II, ill r 2, &C notice of. r. S .111 I IQ n-aiiiit r. 15 r. nil- '!!.■> r'l ^' II -I 1 llui III I ■ .('•ITIl' '■1 ' s iiuali * .H.',th ■ 111 I'Urk t)i«. refur lo the Act of A " iii.'aiu Talilo A. ail' I or i(wr, iiii.i tiip ruii's of isrtK.) r, lu'ttu mil- Tbi> I mi IM'I X Nil. 1. il> A< IS AM) mi. IS. rui.i. I'CST, i'Tvi.e of iiijircs, ^i., l'\, oil comj'..:'y. s. &2, 'i:* on ineiuliciit, A. S'5 — V7 ill wiiuliiig-uii ,>rocci(lii:j;>-, r. •■^ (.4 I'OWKKS. of lUiaiil uf ThkIp. Sco Imim.u of T'.A;)r. of lourt. Sec C'lrur •f ^liiritors, S'fi' I)lf;Ki Tnl^ of litluiiUtors. Stc I,KiriiiAr"!.-< of mii sorviitiiiti of oM, s. 17" 17'', lUiJ mc i. 74 ii'" V> ii, r. »'. 7 ■hi ;i|iiK«intnitnt of li'inni.it- :-•, .. H— Mi |Vo.)f of (Irbts, V. JO — ^< si'ltling the ii«t of l out "f r>..iiU vf f;ii^I;iiiii;i:< T 2 tilt.- of, in naiJinj; up, r. .'7, >>>* I l;n|ii(Tl<>N', i f |.ouk^ i.y jwr^i'^H fcx.iiiiiiii <1 as tc^ .ifl.iiri > f • oinprny, h, n:'> I f books l*fori' sjH'i.rtl txaniiiii t", *. VjtJ to nU'litort, A. 1'3, 04 of l>aiikiii>; I'oinjtiLiiy, «i't 'jf 1^7'.' •«. 7 (.1) to insimtorH, ». IV8, (JO litfiKlTS, iljvieion of, A. 72-77 st-tliiij; apart a i fiinJ out ■ I, A. 14 II turn of ii.mniulrtti (ijiitu!, at ». 3 n.i'Mls.". ;hI<. Til- IM>I \ No. J. I,, ^, ; , ^^.,, It,, pi. Mur, tliij'rny's liiiM, .(■-■: .11 'vii .1 I'RcdF. iRooi- iiF DKirrs, 111 i.iii.;iiij; iipK.n(!.i!!y, s. L',*, nm] v. vn. j^ .ixiiij: tiiin- fill. H. Iu7, .vini r. UO MKxIl' of jirooi, I. 21 — Jl ■istsof, V. 27 ly ic>ii;ri!iuturi<», «. ,';^ 7), 101 in S'.amjaiics, «. los i'l j>ro(CC.lings to rcliic. .ipifal, r. 12, 13 ill iMiikniiit^y, yy rrgistiati-ii, ;. lt»3 (i.iiiiliiknt cotivoyaii''c of, ". ]i34 ■viivcyancf of, in iniNt for cn-.lit.,; ,, s. ltJ.| ill oii-'.'i(ly i)f i(>\ii-t. M. <»-j nl unr.j;i>,t.;iv .■xantiiif.ln'. -o, s l ) ", < —' - ui:!n;try onl.T I r (Iflivt rv up .f, «. 100 .liMr-ss ,„„1 ex..,-.tion upon, aft.T •o:uni.;n,-cn.cnt of ui,. li, , ,„ , .lt.;ni.^'swith, an.'roomnirn.v)n.'nt..fv.in.lin.'iii. s I'j ^ '' |K)W,'r ol li ,;ii,lator over, ><. !M, iC., lo.l, |.;j, i,;-- ' ' mI^ if, liy li.iniilatori, s. !>J I'.'i ! ' ' " I0'> nU snle." «!<(<.«', K Jtil, I'll' 111 I r. :\> rRi'iSFirTION. 'f 'iflin-iuont iliifcfors, .^. viiulin«-up ■>|.1.T, r. 7 1. 1C7. !»!«, :iii.l r. :.i ii;"S!'KCTrs, wl.it to i..' st.ii.-tl in, F. 38 i'l;i'Vl!iKN*T S'X'IKTV. -t't.lii.i.t to •»• kcp! ill o.-f; ,. f, <. .(, i':"VI>!'iN.\L 1 K'i-IH.VIOK. wtr of I'oiirt to appoint, s. s.'s {'-J; 1' or. IT. ,VJ P"W.,T of, 8, lltJ [ii.vY, v.itiii^' ).y. ,it cotii' r.nv's v.. ttriiM.f |,ru3ty |Wj*r, A. si l"«-ti!;p i'i>: I'V, at I'U'i'tiiijfs suinmo'if I A t\ :.i n ro'irs*} of vviiii( !l f;i MASK, ^^' nit, r. J'i t iMiieit,,! ,ha;e«, A. '22 (I iu»iHbiT'8inten-*t 011 sal- ■,( ine apittt!, at III •"•■'■'. '.'amucvticns. I'l 'In.', tors, &.•., A. r.J '1' '•■' :« ill, s. (57, mil \, .'.7 vi"f;r.\i, ■itjf'iXTal mectinpi, A. ."7 if.|irector\ A. tit] ';UI\V\V 'nMl'XMKS. Arbitration Rit, 1M.9, •< 72, 73 ii;5t; 1NI>1 \ No. I. lO Ac rs AM' l;i l.i.<. KKrTlFU AlloN. of n-jjistir, s. M.'', M oil srttliiij; list iif I'Diitiiliiiti'iii's, s. OS of coliuiial K'j^istir, a'.t I'f l^sa, s. 3 ,:i) ofli>l o| !( ntnt'iitoiii's, !. -Jl* 111 Kll'It KI), w ht'li to I'l iiiMnl lo II, mil' of I 11 , 8. 10 KF.l'l-. TION OK I AITIAI. b. 9 -20 .n„l r. 2 Ot Hoq. ; :.n,l .„ t „( br; 8. .'! "> ' \<\ n-Unn of .i. < umul.itdl pnilit*, iii t of I^mi, ^. 3 i:i"M riltiN MF ( (tNTKAflS. of I.if.' uss'ir.iiiie cdiiij aiiit-. I.. A . 1n7i\ s. 'I'l i;k(;i^tf.K'. of ilimlorti to he kij't liy ii'lt.lill i-olllliallii -. - I', I'i of nil iiilxi >, liiity of kripiii^', s. '2'i vllllt it IlHl^t r.illtjlill, s. -J'!. 'J'! wliiTc .".harts ail' iniivritfil into ^to, 1<, ., •_'- whcif slniii' warr.iiit.s rxi>t, 8. 29 -iuA 31 tnist« not til 111' on, n. .'In i-orrcclioii of, H. ,').'i, .".t'l on .H<-Mling lontiilmtoiii-H, s. i'S • vidfini , .s. .'17 illSjlCt'tioM of, .s. '.\ji i-lo.sinj,', M. ,!.) of rnoi tgaj,; -s, to In- ki pt \<\ liinitcl lomi'.^nii •^, ^ t i Itliiuial. ."^ic CnLoNIAt. lii:i.i--i r.K> KKt;i.> ofvick, ■ liity to liav, .K. 3'.t ].o«i'r to iliiuip-. s. 'Jll, '.M-J notici' ot i''iiatij;i' • f. to lie ;:i\( n !•> rij4i>trar, s. 10 i;Fi.F>TU.VU . \>, jnay hi tike ili-fuiict toinjinni'-.H olf rcfjistcr, a '. of l^"-!), >. 7 Si« Hn;isii:Ari'>N, Ckitikhmk, Kki > RKfil.STRATlMN. of attiilis (if a.s.soiiatioii, s. 11, 17 of nn'in, In nf new fiann- ili cum ot iliati;^'!', s. 1.'!, 'J') of niottf.'a;^..s «. 43 of list of 'liiri'tors. s. 1.1 ofaniiiial ri'turns, s. '.'«. N"" of order to ilisstih I', ». 1 1'j of ., s. i of cxihtiiij^ roinjanii s, ("iwir to ri>;i>t'r, -.. 17'.' l"! with a view to wimt up, ,s. lSi> [NB.- Ill tlim IiKlrx "». mi-Hns M-ition, " A." iiimih Hil.lf A, nii.l ' r." imnnj iuI' Vit r»fcnnUi k tv|* rt-fir to tin- Act of l!»67, ii(i, If A., ftii'l "r." i.icanj nil' . The IM'KX NO. r. TO .WTr. W Kr.'iisrr.ATH'N— ^..;,7';/>/-7/. Ill I'M tili^' r..|ii|iaiiii'-:--c/;(^'»(/.v/ «li '11 C'lMiiiiilvirv, H. '2\)'J inoilc of, N. 18:J--1S7 llsx'llt!,, &,.., I|(.,TVS4iiv r,,|, s ]7;l '» nr-r.DS*. ]l;57 lidliif.s to l)c given |,\ luiiJ^ li.iliility, s, I8S (■••ilifiint"' of, K r,i] wlipii iiinj..ia(iv.', s. 1S8 fdirt of, n. ini— li't; foi's for, s. 1 s',1 :ii,|sri;\TJ"N (,) ij, (.;_ , |-, !K(';ri,,\Ti(iNs or < 'iMrAN^-, , j , 'K'A '"iiiiiiiiii.s rrrTi,i '^l.tr!llll{ W.lll !i„iih„l rtgisliiitii.il (if, s. 1 7 |H3Wfr fn alter, >. .^ incinli'is tiititli"! t (if, .s,li-.l. •!>>• "('. s. ]'J o! tli(< a.t, f( onus A. -1). iKllF.AI.'INii if iilijrl^ in \v 'II I 111;,' li;>. s. Ji'l JiOV.Vl. iit liii.ctiis, A. c,' 't l;.|i;:.lit ■!. !..mim;i;\tiii.\ 1'', I.I "I mill it I,;-, A y-, ,111-1 „. t oM' '|| iliiii tors, A. r-J fli.iuiilators,.. M, Vis-^), .,,,,1 r. },> ' w; 'f rii;istrar •MIM h It n^iM-.tiints, fi.:., h I7i '".!'KAr,i:ii STATJ'TI': •^••1 .Hrlie.J. 3 of <«■■[ ;i'i:Ai,i; '• ^It'TliiNs s ■) s. liiii iOS i.iJ'nrvT (8) ■fiU'litoM, A. yj, ll„l :,,-t of 1S70 'I liiif. tois, A. 7ii -h:.' ' "I ins|MM'tiir,s, .H. (,<) — ci -'■ '"{"i'l^tor., in voluntuiy winaing n,,. s. li i:Kr'i;i;si;\i.\ii,,\ ■I ' ii-lit.'is :iii.l , ,,|,tr.| iitiiliiitorii li^:^Kl!V|; i aI'Itai. •^ III windiii. If piWCeili'irr.;, , ,;| 'IMiiy. h,.■^ |„„vi.l...i. a.'t of I,- IV, s. 3 I;K.S1-.|;\ i;i, I iM,^ pOK.l 1 I |.,|;,i_ .\ -, l!'.Sil)|.;X( ,.; "I li-;;i.s|(>r.'.| if III coliil'lliv, ',. 8—10 iTKlstiM..,] ..inp.uiy, s. 1')!) (J •^'•><'I.I'T!0\v II i ;'*•>■ -tti this i,„i,.x „ ...,.., '-"•■M. Mark ,y,,e ,..?;.,■,'■ i' I..C. ". IIH'SIIH K.'i tlii "I'l^ ll|l, I. If, -.J7 rin'anH Tiilil.i .V.. .ih.| ir At ot iStiV.aiui Hio riilcH of lS(iS. r. n.t'niis ni>. TJw ) I) ii;ks INI'IX NO. I. lO ACTS ANI> IMMs. I!ISTl;.UNIN(; |ir.MI III. s S", -«7 tu- i.,j :201, -Jd-i 1 ■■■-»/, I. ,. i.H, KKTIliK.n MKMUKHS. li.iMliIy nf. s. US liOTATInN ci iliri'itdrs, A. ^'^ — tl.". for wiinliii^; ii|i. ]M.u.-r oti'iiiiit^ t" make. s. 170 in ciniiity coin I, 8. 20 SAI.Al;V of cli'ik, ]iiic)rity of in wiiiiliiiL' u]', ..-i' :i( t uf !'»>•:(, s. | Sof I(i;.MrM'.i:.viitiN SAI.K. |i<-)W('r (if lii|uiilat(iis to >oll, s. PS liow to 1»' CM r.j^cil, r. :t2 of i-oiiil>;iii\ 's tiii'^iiii'^-, 111 wiii'lili^ ll|i, >. li'.l, li'rj SCHLMK. for « iii'l.tii,' up, ■-. l.'r'.i jMiwi-i- to iiiiiki' aniiii^'-iiniit.s with iTclitor^, s, ]:i;p 1^7, i;,;i l"I .|i>[ioy;(l of <-i>|IlI>,i|lv'-t ImsilU'-S s. liil, li'.o SCOTLAND. infoniii^; .S'oti li onl.Ts in Knulaiii! or livlaml, s. Ijj, Ij:; fiifoiriii;; Kiij^lisli or Irish onli-rs in, n, 1 •_'•_>, l-.;i rxiiiniiiatioii of \vitiii'.H,srs in. s. Iv!" or
    ,inif.s rc«ist<'ri-l in .S. othiti.l, .u i oi I^"--; .^KAL OF (•(•Mi'ANV, of liiuiti'.! ( onipany, ?.. 41, 4J hilN mill notc-t not'.l not h.ivr, s. 17 (icrilH fXi'iiiti-il ahroa.j iirt-d n^t li,i\.', s. ,','. Iiotii-cs. ic, mpihI iH>t 111- aiilhriiticiittHl liy, s. til i irtihiatc of tith' til th,iri\ iVc, "'vi.!.!!..', if nu'Ur i-oinpaiiy's so.il, s U iii>.|>»clf>r'!» rv-jmrt |, s, 2 fonip. a>;J, ami r. 10 13 SKKVIiK ■ •f -'irnnions, not-. t>, \. . on . onijianv, s. ♦i2, t!.'! of iidticPH on nifHi'Hr>, A. I',' -",'7 of jHtitioit to «iii'l up, r, :) of Mniiinons«-«, noti.cN. Ar , in win amroFF. i.f inoni>y ilu. frojii rokMjmiy to i-ontrilmtorv. •>. 38 7', 101 mhtte liability of .hmlMM is uuliiuitnl, g. SHARKS, wloii to Ix' nuniltcit.i, «. Ti, iWt) C*) «r<' piTsoDttl 'Stall-, 1, 22 nunit'pr nn. 1 1 rX.l. fci Ihn tMil»X '■ ». (MMM %»»««^> •• % WMiit UUv A., «n 1 i ' ni-'ant me Hi" wRfK-n'-^ in t'lai'i ttpr rrtf^ \ «k* .\-'^ i>l 1«»;. ami th« ruW of IMS. | '1111. 1 lip. s. s:. -87, l;i:. l;ii? i\r>i;x N■, pj, ;,i|,| \ ._,, \.n\ ili^' :illl(illllt.s I.I', s. 1-j, ami .\. "iT < IS .\N1. nil.K 11:39 v^ ill. I ivisi..ii ..r, 8. 21. 22 (..iivcismn iif, int." -.In. k, -. IJ, ;iii.| \ •>■•,_•;-, llirlv,isr(.|-,„|iNoll,|.,ti..i. ,,|, t,.'l>,. ii,.tili,.Vt.."lV'isti c'iill.s on. Sit (,'aI.I.s '" i:iiiC('II)iliori of iiiiissticl, iiri u( |s77 .s ;, Ciisli til lie |iaii| for, s. 25 r.'lliticatr of litii! |o, ij^ht (. ■JS I'vi.jfi iri', s. .'! 1 '■iii'iii.j, A. •_'• toifritiir.' of, A. 17 - j'j J. .lilt liolilns of lliilici-s to, A. !"I I'l-. i|.t.s hy, A. I V. ill's of, .\, It; iiiw n-^'iili^tioin .|^ t.,, A. L'7, JS Il.lll-.l'i'l of, ^(riiirally, >. -J.', an I \ s 11 I'lini of, A. '.I on (ii'alli. s. LM, aii.l A. IJ [i; n l.ankni|it.y or niarint;,'!., A. 1: alit'i lonmii IK I'lni'iit ..f wind 1""^' lip. -i. 1. """>iiI'.Hii.-.s r.-i>t..n.,| iHi.l,.,- ih,. a, ts .,f Is,-,.; -i^.-„s s 1- oMti>i'f...l I.I- ^ r.» ..It.. »'*'^i s, (( olif.'irnl li\ ail. I A. II >iiAi;i:ii(M.i)Ki;.s. M >.!• .\1i;m!!K»!s .III. I .'N I i;iiir iiii;it: iiAKi: u \i;i;a.\t, 8 27-36 ^l<:NAI"ri;K«», .^, jltllll ■iiilly UotiiT.l, .^. Ij.v 1...S lIU.liT COIIIpallV 's «m!, s It i'n .seal, ,s. til riNTi'ilings, r. (55 «. 38i,r), 101 IJr .A., «n 1 I ■ iii.'inj iii> Ti" SOl.K ITiUi. lo li.iui.iatois, s. :i7, an.j ti'f-. of oil |lllllil In to i.-.iii, ,. .-.ipii.ii. r 21 ■SI'iriAl, I'.l SINKSS. A. ■•I'K' I \i. i;i:.siii,i riit.\, what 1^, .>!. ."il ^ilt. rill); iirtii lis liv, I" IH* ii..titi<-.| to ii-j;i-.fiar, s. .'■..i iiiiiiilar iiititli-ii t.. I'opy of, s. :,\ to ih iiti) iii.nii', s. \:\ to iviiii.r capital, a. t.. Miluliviili- ,>,haii '^i, H. 22 ' to unliniit.'.l lial al.ilitv ol .|ii.-, t, 8. 8 "l'^' lAl.TV DKiip; ""'»'••■• '111., honi 1,.. inliir-i nii.l..i- , ouipanyVs ,,iti. !, iii|'aii|-u|. lapital ..( roinpaiiy liniitnl | > all-, s, Iti :itl 111 win.liiig up art' ly 1,'Uii-a it.'.., s. iHi 'I'A.MI "II altirlo.s of iis.soi'iati.>u, i>. li "II iiu-iiii»niiu'iini of nil sh >'•• » iimnls. 8. 83 soi-iatii'ii, ^. 11 "hiuv '*«w<.T.-.| in ...loi.ial ii.gistry, ift of |i \ NO. I. io Ai IS \\i> i;!r.i;s. .si.\N.N.\i;iKs. ri'>;l,-itiiitiii!i of I'oiiiji^tiiii's Wdikiiii; iimic>s in, s, | t'liliir^'i'iiieiit (if jiiiJN'liilinii of, s. (JS |Hnvii iifriuirt c'l', t" 1 i.ii'iM't ri'>{is|ci- of rui'inlicrs, s. Xi to i'()Iil|M'1 lllsprctinii (if ir^JHti'i- .'f ll|i>rt;,'!if>(lioii,s (I lini ni, «. ll."> onl'isiil, li.iw ciilcii. • (I, •.. 120 ajil'iMl fiilln nl.liT i»r, s. l-.'i wunliiij; up ill innil cf, s. ,»<1, HH powiT t'l iii.ikf riili'» fi r »iii'liii>{ 11)1, -V. 17- |>ri. f i.t li.'lit- ill, •.. lOS STATF.MKNT. luii'.i.il, 111 ]"• tiLi'l'' t'> K'Ki-ti.ir, s. 2(5 tu tlO lllid llif. Il- ^rlllM.ll 1111 rlill;i{N, \i\- iliiiKfiii-, A. 7l» >-' li_V ll lUiila!"!-, n. 14'J til l-o k It rt-'i'iiic'l I.' Ih' mill I'V iln- i.if.' Asiiii.in ■' CDiniianirs ,i,i, j, a M. .'. S ■ Sci', ;ils 1, I.iKi A^-i i;\N r I'liMi' V. ii:.s .SiATrTi;.- i:r.IT,AI i;i'. . jn:.. ..n.l >.l.c.l. ■.;„(, t STAYlNi;, .irtjiiii'* .iml .suits «li"U coiuiiiiiiv is )'<'iiii» woim.l up, l.cfoif wiinliiij; u|< diilcr, s. ST., I'.C Jill iifl.Tilitt.-, s H7, !!»><, 202 \<\ litiiiN' I r'>iii|iiiiy iiiilil .MM'urity i-^ ^ivcii for coils, n. I'i'j «iiiilin;;-u|i j>roce»»tlinf{s, n. ho STUCK. ronvcmioii (if slmrcs intci, s. 12, 2S, 20, ainl A. 2.1— 2j r«Ttitic-a*(> iif till' t', .s :!1 rights ..f li .ll.r, ..f. A 21, 2' .■^1 I'll '1 VISION UK si!Al;i>>, fl. 21. 22 ^1 li.^i-KIMKKS t" uitMiii'raiiiliiiii i.f u>.Mi(i.ili.iii, form ("iiiiiii my, s. •'• sll Itl'S t'l 111- t ikfll liV, h t"i, 1 I til.' fust .111.' t..(., a' r.2, .'.:; .SIMM \i;y. aiiir.:.il, tn hf sriit t'> i<';^i>tr.ir, ». 20, 27 .s'.MMAltY rH«H.KKI)INi;s, to! ro'oVlTy (if pi'll.lllir«, rt. (>,1 Im iii.sjH'.'tinii iif iij{i>.|i'r, s. ;)2 ufj.iiust loiiiiitiuiDi i.-^, to pxaiiiiiii' llicjr. s 1 H t'l nrrcsi Ihcui, it riKoiit to .disi^onil ,i 118 to roiiiiH'l tlii'iii to ji.iv liiiiii(-y, s. I'll for <'iifoiviii({ (li'livfiy iiji oi innipaiiN s ]iiN.«< SCI vi ■!• of, on rii!iij>nii\, s. ''.2 111 w ih'iiu^' ui> jiioi coiliiigs, I. (i;5 .ijijiiic itioiis to ln' mail liy, in \viiiilinj^-ii|' jiriii'i'i.'iliiif;s, to jtroi'i'i'il with wimliii^ uji, i 7 to n|i]ii, r 15 to make i-rtlN, r. ;t i other ciHCi, r. jo — 74 ^V Jl. -In tl.li In li'i " n ■ iiii'iii^ xj-rtior.. " A." niciiiii r.ilU- \., .mil ' • " niMni ruli' rK.>r.ii.(H ill tila.'ti liri"? tftor to tin- Ai-t "f 1867. «int ttie nilM of Is*"*, i INUKX No. I. 11) A« i: AM' l;n.|.; 1111 ilrinliiTs, H. Xi SlTFfiVISION OF COVUT, \\'\ni\iun ii|i, s.il.j.rt to, .H. I (7 l,-,o scHi'r.rs As.sK.Ts, distllhlitnui 'I, 8. 109 I, s. 1 1 lllli.M" C(>lll]m!lic'S ,lit, TAI'.I.K A, III «liiit coiiipatiicH it apiilics, s. ]'i imwir iir,(i(n|.alii«H fo iiilopt, s. II nut to .ipi ly t.. roin|Miii. s ii„t (,,||,„.,1 i|,„| I'uvi'i il l'.u.iril iilTi.iilc' to ,i!l. r, s 71 I'l :it.t, M. I7i; TAlil.K R llut I, pcilnl AH to I „|||J.,11II0.S t.i \\],u I |...v,rl l<> alt 17tJ I It -ll'lillo:, s. -i)t; I'AXATKiN (iK COSTS in "iiiiliii' '![>. I. r2 ;i.l!MlNATI(.>.V of TiMp; tnl il'I'ialiiiL' I.. III.. . .. wiimIm]^' u[>, r. tl". t;7 s. l^2^, ..ml r r.t! I'l'i liMiliii^' intctiii>,'s, A. :J!i -31 I |iroviii^' ,l.|,t.s m wi'i.lin^r ||j,_ ., i,,; '■' ' wiii.linj; nj. duti's, s, bi. l.io INMIl 11 i.j.i, lit which act coni.'.M intfi i.f.cr.ifidii, m. •jo; I It «!,ith .•(.iiipaiiics IoiiihmI nivh r .:•)■' '.^nH'.i; irgistl'lnl, «, 170 filisjiolutli'ii ol (omiiaiiv. s. Ill, I c, '•■J ill.- to Ihj .•oii>i,l,.,-,,,[ ,,>^ ix.ivT i.fcurt t(» cnlarg'-, ,<,•., r. 24 AfiK IHANsFHiJ r.iidKS, »l"sc ot, A. 11 THANSFKP vb- I'.rslNKSS I't lit f .^vsiiraiKc itiinjiaiucs. .Sir Amaii.a M \ I luV iKANSFF.Ii OF SHARFS ij'in r.iily. -. ■. I'lirm of, A. I' .1 A. S-!, (Ill (i wir!i, ;i. .11.1 1 A. I- -I II liauktuiitiy or iii.irPiji;.', A. 1; iillcr .■oi;nniiufiiiriil ol niii.ling ..ij,, s. 153 III lomi.atiir.s j,MVfnu-.i l.y m ts , f | >,-«_- ])^j,j< ^ ^-^ i"j,'i^trr,.t, at m|ii...Mt of traii.-,(ir.,r, s. 26 tami. dnUvi, oil, when rigistiinl' ■|. ■') 111 .oiiiiiiil iTL.'i !iy, ...■; of 1HS3 h. I'KA ■%>>•• 1 I'' "F '^Ttit K, A. ■:\ Tia'sr M:i;i, lul :ifht of toiii|i,iiiy',-, ciidit "IS voii i<;4 TKF; 1.1'! to .ij.i. ,r on rcgi.iKT i.)f iiii'iiiiti,-., s ao n T.tl'Ie A., iin'l ' nilM of l-WH ] mean.i rulr'. The M.I.MITKI) COMPANIF; itK''"ri'tii.u of as iiiit. I, a t of 1S7;', s. 4 iflt'wt of, act of l.b7ii, s. 4 INHli.j.sTKKKD COMFANIF Vllnlii:g mi ol, s. lili.l -IJ4 f|. ?*Ii -In !l.;n Inilfx' ""-s .« Mack t),,^ rvftr to ul^.u; ^f "iMi:";..,! ». »i>«I.h Wt J lou, ;A. iiu.iiis T.ill.' A.. tin' rulis it l~i. ■lllil "I ■ PI, ,I1M Kil,.. Tl.i 1112 INM.X No. I. I(» Alls AN1> l!l|l,.-i. VA< ANCIKS iiiniiii>;Kt iliii'iiors, A. ilJ, til iilli' ill li'|iiii|,ii,'iil,ir H.t.*, h. tl", uiiil A. 71 VAI.IATION iif iliiiiii> .i;;,iiiist ■•iiin]miiy liciii;; wniiinl i\\\, i. l.'.S, miil i, J.'. Ill aniiintii''. ami p.ili.ii s nl lilr iissiiiiii' r riiiii|i;iiiii ■*. I, A . 1 aikI m-lii«liil< ] VKSTINC OKIU'i;. |i(>«ii 1m III iki', s. J0;t Vki: W AKDKN. Sc.' S I ANN Mill s Vul.rNTAHV Miiiiliii^ u|i, ^. It'J 1 )*) S.T \Visii|\,. If VoTF-^s. lidw tn l"' ^iMn 111 idiiipimj'.s iiircliiijjs, 4. .'ij, aii'l A. ^^ .'1 ( liiiiriiian'.s r.iNtiiij; vnU', A. l:t Imw til Ik' (jiwi) at iiiccliiit;,i Miniiiiuiifil in wimliii^' up, :. }.'. i; NVA<;i;s, jiriority "I m "iii'liiij; up, .i. t of !'•'«.!, >. l WINDINC Ul'. X'-iKTiiUy, of >iiinp.iiiics fiiraiiil iiniliT tlu' iit.|i-.|. Iilit lint fiillil.'.l llliilir till' .lit, .s. llii|-l;K i>f U!lll'^;i.strt(il I ii||ip;i-ii ml in S, .itlim,!, .i,t of !>>•! Ill lilr as.-.iiraiu <■ rniiiimiiUH, i„ A., l^^'O, s. 'j| of rninp.uiii-s Niili'^lili.irv tliiiitii, I.. A.. I>7J, ■.. 1 n'Histratiou of cuiiiiiaiiv fm- purJ■ll^(• i>f 1). in^ «..iiui| up. v !'■) Iiy tlif court, s. 7".* — l'i>* Sio I'liAi inK un>l Fiii:ms Voluntarily, s. ]-^\> 1 |i! Miliji'it to .siipirviMwii of riiiiii, -. 1 17 -l.V.' liooks of I iiiiipaiiy, fviiii III f 111, M. ]'l^ ilisjiO'ial of, s, l.'i"! illSJM-ti'lll of, .H. l.'.ll ttU!»iiu-i»s of roiiijiiiny, i»nvi r to -ii 1', -.. liJl, I'l-^i culls in. Sto Cki i,> ■ otiniii'iici-iiii'iit of wiiiiiin^' up liy I oiirt, s. .SI vi/liiiitarily, s. l:)ii iii;ii:s rii>,tsof, >.. lU), 111, amir. 70 7:J iiiiiil fur, aiiil Us piiwtr-. s. !• < "orur ill ('oiiiiiy Coiitt, 8. 41 .iM'l 44 cri-liioi-h, loinproiiii.scs with, >. j.-.y, l(;(i, amhu I, !>70. s. 2 toii.siiltiiij{ wislii-.- of, H. SM, H\>, Hiiil r. 4:1-17 prooi ol ili-lit.s liy, s. l.'.S, iiii'l r. 'Jo "i"' tiiii.' for, )>. I117 S.I-, also, 1'i;kii| |iii:s N.n. Ill llii« III), V •• n. tiu-Mit »i'i lion, ■' A. iiH-aiis T.ilili' A., ami "r. iiieiins t'tW. Tlif rtfrrvncrii in |,l4,.|i t>i«' i.-f.-i to tin- A. t of IMm, iiihI ttic tiilis of JHDi.j IM>: \ No. I, 1, ' \ I -^ AMI III I.I, net l.VX, a.hl r. J.-, iiliiitins. I, A . I, -J , -.^ iiii.l .\. I.: .-.I ling lip, !. J.'' 17 I 17.! iiim1"T till' .lit, s. 1;m;_1;i-> •V. 1 >"■.-', N. -:<•: of IS^tl , V 'Jl ■ ■iii;^ «'.iiii'l nil, ^, 1>; |.ii.>.. iiiji.i, „f. , I1I7, Ills, ,11,1 r .'.I .Sci', Ul,ll, I)||IKl ||||;m .lis.iiliiti.iii 111 i.(Mi|iiiiv iiiii'i, V. 1 1 1 ir . iFcrt i-»'. Uli'l I. ti.i -(", «h.i.' \v,ip.lni„' ii|> it \..limt.»iv, s. l:)| Wll. IV Willillll,' ll|> i> sul,j, .-f f",, sH\»l\ ~,s7, n/;, i;is,'-.'i»i_ -jji-j till i\\iTiif:..iis, fit- s. |ti;j i-iit|..iii_v, s. 1; i\ itiiiimtioii of |.,'rv)iM loii.'.Tiiiii;,' iitr.ni < .if lli|l|li|.ltlirt III. .«i.-l l.l.^l II, \l,i|;. ■iilMiiy, n. ll.-, _1M ml'T lor I'V 111 )•• I'ourt, \\ li'ii t'l 111' iiKul-, n. 7!i, st\, 1 I'tl'i'it ii(, nil ell .lilii! li';iistratiiiii of, s. >SS on >. •<. '»r, IIH, ;>02 siilijrct to snj»'r\ isinn will 11 to ll,' IIIUiIi ■II.'. I .if, .s. I .-I I or.li'iN III, I'llfiir.lii;;, -. ]-2l) — 12;J H|i|iv;il liuiti, s. r.'l St-.' ( .III: I iMtitioii loi. Si'«' I'm I i.i\ jii.KtiC'' III. si'c r. 7 I l.'in|H)r.iry |in'*'rviiti.iii of oM, l''«.|<)f .•unit f.) Iilllk-' iiil-s {< i:.*. liiK H. iro-ir.! r, 0. I7'J 1; liry."..liii-- of, ,s. lull >l"Hliiij,") with, ». 15.), 1.;. »>;ii'! of, r. ;<:• Tt'^oI^ltl.nl for vojiiiitaiv, s. I -."J ml. s for. lllVvt of, M. 1 a'lv.Ttni'iii.iit of, ,. ]; puWi'r ol . 'iiiit fi ii'iiii' foe, s. I, V.I .•.t.iyiiii; iirtioiiH, A,',, |>,.|i,Jii,o, ,s. !S stiiyili;.,' pro.i'.',ii|li,'H 111, s. Ml ^ii?|.!(i, iliNtiili:itii)ii lit, s. lii;i, ,,ii.l WIT\i:.<.SK.S, K.\A.MI.\.vnii\ OF, I'V il|N|.»-, toiS, >. is in ttimliii:.. up, ». 11.-, . lis. Si,. K 17J "'-87, Vj7, I'JS, -JOl, -.'0 iH'f. r.' >pi\ iiii loiiiinis.sioiifi 'i;Ms m ■'''■otliiiiii, , 1; Wii.M.W, lubilitv of in.irricil, to lie iiia.lc lontriliut. f^ n !', iiiu III let ' ffit.!.a., II. bla. k tjiK. r^rir i", tli",' Ai:t"u'r"ii.i: •i. TtU-ltH KC'ti.ill, A. iiK'.-iiis ialili' .v., aii.l ail I iIk- r.ilia Mf is.lti.] ' r. M'iinr,. Til. ■ .\., ami "r. iiiMns I'll'-. Tin # IMAGE EVALUATION TEST TARGET (MT-3) // 4 .V. ' \\ <^ '% 6^ ^ * <^ '^^ 23 WEST MAIN STREET WEBSTER, N.Y, 14580 (716) 872-4503 ^n> ^ «>>. i/x pf fli ,'*«*! GENERAL INTEX. ABANDONMENT of railways, 618, 901 tl saj. ABATEMENT OF ACTIONS See Im.fa- No. t. ABORTIVE COMPANIES, calls oil siibscvibeis to, 32 expenses of fomiirif;, 30 recovery liack of deposits by subscribers, 29 — 35, 539 winding np of, 632 who are contributories on the winding-up of, 763 See CONTRIBUTOIUES ABSENTEES from meetings, liow far bound tiy wlidt takes pliieo at, "11, 3S1) ACCEPTANCE of application for shares, 13 ct set]., 769 ct scq. must be by proper authority, 11, 770 must be in a reasonable time, IS, 770 must be before revocation, 13, 770 must be in accordance with the otfer, 16, 770 of bills. See Bills of Exchange of shares, 13 ct scq. Sec Allotment Sharks on conditions, 778 ct scq. of transfer by company, effect of in winding up, S23 ct .<>./. want of, 831 ACCORD AND SATISFACTION not payment in cash, 784 ACCOUNT AND NAME DAY on Stock Exchange, 502 ACCOUNT, actions for against directors for money impioperly applied, 571 for contribution between promoters of companies, 606 in illegal companies, 139 in ordinary companies, 594 where company abortive, 594 approved by majoritv, 317 audit of, 443 duty to keep, and the right to inspect, 439 under Companies clauses consolidation act, 441 under Companies act, 1862, 442 under Life assurance co. act, 445 under Stannaries act, 1887, 445 false and fraudulent, 446 inspection of by Board of Trade, 444 in an action, 440 mandamus to i>ennit, 440 under Companies act, 1862, 442 under Companies clauses consolidation act, 441 1146 UENERAI. 1X1>EX. iff ACVOVST—o>i,tuui»l. injunction to restrain |)n1>licntion of, 593 litiuidiitoi's' ncoounts, 704 opening settl(Ml accounts, 594 statements us to, iXMinireil from various companies, 444 taken in an action liy sonic on bclialf of otIuTS bind all, 570 f<; I ACQUIESCENCK ns between principal ami agent, 377, note (u) in surrender of sliares, 518 ct acq. notice of irregularity implied from company's books, not sutllcii'nt, 518, note (c) of company, clfcct on liability of directors for assets lost, 377 of subscriber to a co'npany in change of scheme, 25. See CiUNui; ok ScHEMK ACT OF I'ARLIAMKNT company required by statute to pay expenses of, 146, 400, fiOt! expenses of obtaining, when not payable out of funds of coni[iiiii' See SrA TUTE i3-Jl,32J ACTIONS. See Ixi'KX No. I. 1. by and against companies generally, 2«J2, 55y after amalgamation, 2()4 by Attorney-General, 264, 580 by and against ollicial liquidators, 705 cl srq. public officers, 265, 564. See Pi'nLic OFiUKn^' of companies governed by 7 Geo. IV., c. 46, 26.'i 7 Will. IV. >^ 1 Vict, c. 73, !;70 Ijy one member alone, 566 by some on behalf of themselves and others, 565 H soj. instances of, 571 companies empowered to sue and be sued, 265, 564. See Puiir.ic Officki'. other unincorporated companies, 270, 55!) being wound up, 263, 66!t ft saj. ontroUing majority, 57"2, 578 niinoritj', 581 foreign conijianies, 263, 911 fraud and misconduct, 576 general doctrines as to interference between members of coinpauies, .")74 et seq. incorporated companies, 562 on contracts answerable out of funds of comitany, 246 d na/. on instruments not under seal, 220 ct seq. See Co.ntkai.'Ts restraining, against companies being wound up compulsorily, 672 voluntarily, 883 security for costs, 263 2. between companies ^ind their members generally, 559 <' *'7. incorporated companies and their members, 559 unincorporated CDinpanies and their members, 559 public oHicers and shareholders, 561 pursers of cost-book companies and members of company, 5.W note (/() creditors (at instigation of a company) and shareholders, 669, 560 particularly for calls, 427, 564 evidence on, 428, 440, note (/) dividends, 437 rectitication of register, 63 wrongfully forfeiting shares, 534, note (/() right to use the company's name, 573 OENERAI. INDKX. 1147 , sutticLi'i\t, ilS, Veruiii.'.cOKFicEr. ACTlOliS— font liiiiid. 3. miscellaneoni betwoeii jironioters ofcoiiijuiiiirs, tiO'i. Sci' I'iiomotkiis costs of, by or nguiiist dirii-tois, wlicii imyablo by comijaiiy, 321 lor account, 5t)4 contribution, 606 (laniuxe.s for fraud, 88 ct ««/. See h'liAi'D iliscovM-y, 594 expfusps of forinutiou of cunipaiiy, Hti injunction, f>!'6 rf siy, nmnilunius, (i03 it siyj. receivers, 602 recovery back of deposits, 2!) —35, 581>, 00/ evidence in, 30, note (//), 34 rescission for fraud, 74 ct .sc'/., r)8!». See Fit.vru specitic performance, SSj ft .svv/. in connection witli for<,'ed transfers, 483 to enforce indemnity, 588 to restrain calls, 572 payment of dividends, 571, 574 against sliareholders (by creditors) .tri./c, 276, 280. Seo Execution by brokers against their enijiloyers, 512 malicious petition to wind up, 614 on sales of sliares. See Sai.k ok SiiAur.s by purchaser against seller, 498 seller against purchaser, 498 in companies being wound uj), 672 under Companies act, 1862, 672 staying in s\u-h cases, 672 d t-q. old acts, 669 d saj. ADEMPTION of legacies of shares, 541 ADJOl'KXKD MEETINGS. See iL^KTixcsi notice of, 307 jiower of, 307, 308, 341 )ioll on question of adjournment, 311, note ((/) AlUUSTAIENT of rights of contributories amongst themselves, 852, 867 ct scq. . of onuip.uiii-s, n74 ADMIXI.STR.VTION of estate of deceased shareholder by liijuidator, 709 See Dkatii, Exki.utoi! ADMINISTKATOR of convicts, 38 See Exk) rights of, ill wiiulinjr up, 7:37 ANNUITIES, valuation uf, in winding up, 732 APPEALS, agiiinst order in Hottliiig lint of contributovics, 748 by creditor whoso claim ill wiiuling-np is disallowed, 715 from order on winding-u)i petition, Wl, 699 ordcr.s in winding up, 697, 69S orders for calls, 849 in actions by sonic on behalf of themselves and others, 570 And see Index No. I. APPEAKANCE, }>crsons entitled to appear on winding-up petition, 658 APPLICATION FOR SHARES, 13 r^w/. after company has been formed, 28 effect of iilteratioii in articles of association, 29, note {/) before formation of company, prospectus not adhered to, 19 ct acq. change of scheme authorised by form of nppliention, 2'5 conditional, 17 form of, common, 16 note {u) revocation of, 13, 14, 770 See Allot.ment; CoNTUiBCToitY ; Sharks APPLICATION OF MONEY improperly borrowed, 188, 235 ct siq.; 381 d seq. APPOINTMENT, of liquidators, 699. See LiQi'iDATons of officers, mandamus to compel, 604 taking shares on faith of obtaining, 83 APPORTIONMENT of interest and divitleiuls, 546 of rent due in windiug up, 68 T of rates, none, 681 ARHITRATION, under statutory enactineiits in benefit building societies, 021 in industrial and ))rovident societies, 916 valuation of share of dissentient sliareholilcr on sale of ooinpiiilcJ ns.set3, 896 when binding on company, 184 ARBITRATOR, apiwintment of, under Lands clauses act, 228 ARRANGEMENTS, between company and its creditors, 711 between railway companies and their creditors, 904 See CoMi'ito.MisK and Index No. I. ARREST, liability of company for, 209 of debtor, effect on charging order, 462 power of court to order, in winding up, 692, 696 Sec Indkx No. I. 'm-^fi.- . . (iEXEnAI- INDKX. 1151 ARTICLKS OK ASSOCIATION, iKloptioii of a coiiti'iict ill, 147, 148 alti'iation of, aftur a|i|ili(;ati<)ii fur HliareR, 20 note it) ('ll('('t of, on .siil)»i;iil)fr to iii(.'nioi'aii(liiiii, 110 latilioatioii witliout, 177 coiituiits of, 117, 118 constnu'tioii of, 118 now far a contract, 147, 792 invalid when, 119 jiower to alter, 110, 334 how to 1k! exorcised, 313, 344 roKlHtrntion of, 118 Ntanip on, 118 Table A., 118 wlien necessary, 117, 118 See DkEI) ok SKTTt.HMF.Nr; MeMOHASIU'M iiF AsMUlATION. Sco Index No. 1. ASSAULT, liability of coinimny for, 209 ASSENT to transfer of shares after winding n)>, 833 H seij. before winding up, 464 ct seq. Sec TiuNsFEii OF Shakes ASSETS, distribution of surplus in windiiij; up, 867 rl trq., 885 liability of directors for, if lost, 371 sale of, of company on V(duntary winding up, 882, 883 unpaid capital to be estimated as, 631 ASSIGNEE of debt, set off against, 275 ASSIGNMENT of debt by creditor ]>ctiti<>iiiiig for winding up, effect of, 637 as regards set-olP, 275, 739 et acq. of .shares in conii>aiiies. See Shakes ; Tkansfeu of Shakes ASSOCIATION, articles of, under act of 1862... 117. See Aktici.es or As.soctATioN incnioraiiduin of, under act of 1862. ..117. Sco AIkmouandi'm of As.socia- TION. And .see ISDEX No. I. what is not an, within the meaning of the Winding-up acts, 617 what must bo registered, 114 ASSUMING to act as a coriioration, if illegal, 130 et seq. ATTACHMENT against corporations, 279 directoi's of corporations, 279 of shares in the Slayor's court, 463 after winnniR4 olnuios coiiHoliJatiun act. 1 1 1, 11 'i iinJer t'oiiij'imii'.s net, 1862. ..ll.'J ntliei i'<>iii])aiiiv.s, 44t> AUDITOHS, duties or, 374, mill iiotn (y) iindc'i' Coni]i:iiiio.s clnusos consoliilnliuii net, HI, 412 under Coinjianies net, 1862, H'i And see Indkx No. 1. AUTIIOIUTV. SooAiiknt; Dinecroiis: Imi'Likd Poweiih ngciits exceeding, 240 in matters of finud, 211 of tort, 209 of agents of conipnnies, 161 ct siq. of directors, 1 .15 rl si'q, 4 of promoters to nit for ench other, ID ct seq. to bind subserilM'rs, 1 41 revoention of broker's, to buy slinres, 512 warranty of, by ngents, 88, 241 .1. —9 ^ 't IJALAXCf: ORDERS, 847 HANK CHARTER ACT, 136 note, 1013 noto BANK NOTE.S, issue of, 136 note, 1013 note unliniite«l linbility of limited banking company in respect of, 855 wrongful detention of, 209 HANK OF ENGLAND, privileges of, 136 note, 1013 note linble for viongful detention of notes, 209 HANKERS, issue of notes by, 136 note, 1013 note of contributories liable to be examined when, 691 overdrawn nocounts with, 196 partnerships, when to be registered, 114 paying cheques drawn by (le facto directors, 196 returns to be mnde by, 136 statutes relating to, 136—138, 1013 noto seci'rities, loss of, 209 HANKING ACCODNT, ilireetors having no power to borrow may not overdraw, 196 BANKING COMPANIES, actions by find against public ofticei's of, 265 ct seq. chartered under 7 & 8 Vict. c. 113... 129 shareliolilers in, 129 classes of. 1013 note execution against members of, 285. See Execution i.ssue of notes by, 136 note (/), 1013 note liable for securities carelessly lost, 209 note on, 1013 jwwcr of directors of, to borrow money, 1 90 registration of, u'lder Co'-jMnies act, 1862... 114, 138, 1013 noto shares in, sale of, 439 not within the Statute of Frauds, 453 nor within the Mortmain acts, 452 OENEHAT. INDEX. llu!i sped of, 855 196 b, 1013 note llAN'KIN(i C0MrANlKS-n-.7/;«(f,Y/. slatciiients of acLCiiiits to Uc iiiiulo l)y, I It sto]i|iii)g payment, pffpct of, on autliority of pii>)lir ollitor, 208 unlimited liability ol' liinitcil, in ris|it(t of nofey, S.iri >SC0 CoMTANIKH GoVKIiNKH ]\ 7 Ok.O. 4, C. 4(>, Ofkilt.us • Indkx Nil, I. 1>. 10(> ; Pniuc IlANKKUrTCY, I'lltlt of, on (Uroctiir's liiiliility, 374 iironiotfi's liiiMHty, HO in (tisqualifying a dirootor, 302 note {<■), 337 of C07niiaiiii'M, 010 of |iul)lio oineiT, clfcct (if, 268 of sliaicholdiis, Ui'i rt scq. coinjiany, how far 'lissdlvcl by, ri'iO pt'tition by einiiiMiiy against shaiihoUlcr, 5i!i, .''(.'•fl (iioof by ollicial liniiiilator, 708 transl'iMor to ii ba:ikru[)t tiiunteroo in \Xi\y'. t of his I'l^^'it to iiidi-iTinity, U\>\ nnincorponitod companies, ri,')4 for (alls, 420, 555 d sositioii t.i, 153 powers of company in regard to, IPO See also Act' OK Tauliamkn r ; SrATirn-, i;iLI.S OF EXCHANGE, 185, 23J d scq. Sec also PuoMlssoRY XoTis actions on, by public officers, 207 buying \ip, in order to set off against company in winding up, 73'.' directors accepting, in excess of power, liability of, 212 elfect of having given, on coni]iany's lien, 458 form of, under Conii)anies act, 1800 (Meet of, on liability, 231 d scq. how to be accepted by companies governed by 7 & 8 Vict. c. 110... 225 note {/) 8 & 9 Vict. c. 10... 220 Companies act, 1802... 228 liability of companies on, 230 ct scq. directors on, 231 d scq. where vJlnt viirs, 231 note (/;i) power of company to draw, 185 official litpiidator to draw, 708, 709 HILLS OF SALE, debentures of company, registration of, 198 given by a company, 203 note ( ji) validity of, again.st li lint nrgotialilo, 47 1 iiolicn given by, 470 jilotlgpH, 478 ]Miic]iiuiprM for vnliit" witliuut notice, I7'l union, 478 slmioN in foreign cunipaiiicN, 481 title nr<|uii'0(l by purcJmiMTH iiiidcr, 475 witliout ccrtilicatcM, 47l> HOARD OK DIRKCTORS, «ctN not done by, how lur binding on coniimny, 1.17, 158. Seo DiliiXT0|['< vacancicN in, how lillod, 302 IJOARD OF TRADK, n|i|iliention.s to, by railway cuniiianics to iibnndoi' railway, 902 ft *//. iii>|icction of accounts by, 441 jurisdiction to alter articles in Table A., 118 change of company's name, 112 liifo Assurance Companies, 44.'> ivgister of companies, 1 1 1 •nmv apjioinl inspectors to examine comjiany's allairs, 330 rules of, as to Life Assurance Companies, 1110 See Im)K,x No, 1. flONDS, given for security for C08ts, 265 J.loyd'H, 107 nioiiey raised on, under 8 & 9 Vict. c. 16... 104, 195 nr.ture of, issued under that act, 194, 195 of comjiany, validity of, though irregularly issued, 254 .See, also, HolUtOWlNO MoNKY ; DKnENTUKES 150NUS, as betwc'en tenant for life of sliaros and remainderman, 54.") executors and legatee, 544 ct neq. anies, imjilied jiower, 190 building .societies, 166, 189, 919 consequences of the possession of the power, 102 effect of exceeding juiwers, 1 89 ap])Iication of money borrowed in excess, 235 et scq., 3S1 exercise of power, 192 )m]>licd power, 190 statutory limits nnist not be exceeded, 175, 188, 189 trading companies, implied ]io\vcr, 190 w^'^^^m iii-k ... (ii'.Nr.mi. iNi'i.x. 1153 5g. S.'O DlliiTVui; my, 9"2 >'i *'7- , 330 254 iiiin, L-iH, ""*'• ( IND!' MouTtJA(;r. 243, 386 h02 235 et seq-, 83, 189 381 r.oiii'.owiNi; MONT.v -r,<„thiii,,i. jiowcr of ilii.'ctiir'', 1.H7 •> »"/. miv !ii' Kivi'M liy a imioiity if cniiiiiiriy 1. !•< I'KWor, IPO mtfliiMtidii of |'ii>.t, in Hot an iiiilliority t'lr I'lUiire, 170 Imt Ih, I'.U ovcrilrawinj; liinkiiiK nrcoiint, Vj2 it'ccivitit; iiiniiry lor .mIihi-cs in ttilvMiio', ISl) note (") Null' mill rchiriii}^', 101 r,i>VlI,i;S ACT, " llltKACIl OF CONTKACT, wiiidiii;,' 11)1 liDW lar, 728 '7 w/., 883 r.HKACH OK TursT, (lulay wlini a liar to ri'lii f, 58:? (lircitiirs lialilc as for, wiini, ;t71, 371 invrstill;,' ill sliaii's, wln'ii, 450 Si'i' 'riifsriCK r.HOKKRS, actiiijj fill' liiiyci- auil filler, 508 liuyiiij;, 11:1'' 'ily of, 5<>;J rliar^'i', li', . i i\ diiriTi'in'c lii'twi'cii, aii'l j lilii r<, .'00 ii ifo ( / ) '\iity of, to tlii'ii' iniiiiiiials wlii'ii ciiiployij.l t'l srll, "ill t.i Imy, 512 wliiMi' artiii;^ for liolii [laities, 50S t'l iiioi'iiiv tiaiisfi'i', ;')!ii| illofjal coiujiaiiic'-i, uiii|iloy('il in sali' of sliait's in, 14o, "ilO of (•oiitiiliiiloiirs lialili' to 111' o\aiiiiiii'd, wlieii, ti'.'l revocation of aiilliority of, i'il2 right of to iiidi'iiiiiity, MU not for iiis ouii difaiilt, ."'1 I to i"liarj,'P rompany fur Imyiiif,' its shans for it, 723 soUiii};, liaMlity of, 511 usagt! of, as distiii^nishi' I fioin inlo.4 of Stock Kxchango, 515 ili;(iKi':i!S- TiCKKTS, I'Ustoin as til, "id:; .St'c Sam: ok Sii.\i;f.s r.riii'.Li': act, TfiK, 3, 130 d s.-',. l;L'l'.liLK CO.Ml'AXIKS. See Aia.urivi; Cimpaniks r.rii,i)i\(; sociktiks, advanced and iiiiadvanced inenibers, 872, 920 liiirrowinj,' jiowers, l(i(i, IS;), 01 '.1 Inlying land. liaMlity of dircctois, 371 >'aii lie woniid n]i voiiinlaiily, (ill note (») court haviii;,' |i.i\vii- to wind np, til.'i, tilt), iil9, 922 distrilnifion o| assets of, oi winding np, >71 dissidiilioii of, l».;2 fiinnation of, 91S mortgages of, 920 oveniiawing liankiiig aconnnt, 19(3 directors, liability of, for, 19tJ rnlosof, 919 withdrawal of monibers from, 517, 51S, 872, 920 winding np of, who may petition for, (527 r.U.'ilXES.S OF COMPANY, dispntes in easp.s involving change of, 319 extending, 199, 200 4 E 2 m t lli3(> CiENERAL INDEX. m\SINK8S OF COMPANY— (W!/o(((c 534 note (c) ■|):iiu in ii'lvanco, M^l iiotu ('.) provisions in articles as to, do not njiply nftcr winding iij), 8-17 uniiaiil, 111. ri31 notc(p) intention not to make, 413 intervals bctwerii sncofssivc, 41C lien on shares for, 4.'ii making, mode of, 414 in cost-hook cunipanies, 40S irregularities in njiiking, 11,") lesolut ions making, 415 must he made faiijy, -112 when considered made, 41t!, 417 mandanuis to make, 412 marshalling of, ^layalde hy ji.ist menilier, none, >i'>7 minutes of meeting making calls, 417 mortgage of, 192 note (/}, 203 notice of calls, 417 evidence, 418 form, 418 irregular, 417 under C'oini)anies net, 1802.. .418 order of disiharge bars nil, 42(! payment of, a condition jirccedent to a transfer of sliares, 423, 466 in advance and taking back for fees, 377 note (/)) jier.sons liable to pay, 419, 42,") by .statute, 42") cestui i/i'c irifst not liable, 4(1 executors, 425, 427 note { p), ;'3(). 848 infants, 422 legatees of .shares, ■'')43 persons induced to take shares by fraud, 422, 19(3 who have sold their shares, 423 who are shareholders in sulistance, 40 I't ■■ieq, by estojipel, 49 et ft^q. retired shareholders, 422 scrip holders, 409, 410 shareliolder.s, 420 duriition of liability, 422 sub.scribers, 420 under Companies act, 1862 ..420 in comjianies formed under 8^9 Vict, >■. 16... 420 to abortive companies, 32 trustees in haukru]itey, 420 proof in bankrupt'^y for, 420, .l.'iS et sc]. prospective, 41 C sale of shares between the inaking and payment of, 423 lor non-payment of, in co.st-book mines, 94 set-ofl' for, 743 not yet due, 428 note ((/) sureties for ])aynient of, not contributories, 768 transfer of shares to avoid jiayment of, 820 OALLS ON C0NTRI15UTORIKS, 840 iidverti.semcnt of, 847 appeal from ordi'r for, 840 balance order, 847 •ict). Sec Ini>kx No. I. •alls on a contributory otherwi.se than in res"'ct of his sliares, who had no notice of .;oing on the list, directors who have been gudty of fraun, 851 liolders of ]iiud-u]) shares, 852 offioers indebted to the company, 853 853 42? note [r) 1158 (iENERAI, INDEX. i'''-( ft CALLS ON CONTHIIU'TOKIKS— r„y,^H('.Y?. calls on past nipiiiljcrs, 8ri5 sbarcliolilcis ciititk'd to iiiJeniiiitj- fi'oiii otlicis, S51 for costs, 8U 1 for rctunii'd ('a|)ital, "87 ill voluiitaiy winding,' u|>, 8S4 liability of coiitributdiv must be established before a call is iii.ult,' on Im,, 850 limit of liability in res]icct of, S:>S mode of making, 817 obtaiiunj; iiaynient of, in cases of death, bankriijitey, &c., 818 alter fori'eitnre, 5^0 order for payment of, 847, 848 jiraetice as to, S17 provisions of articles as to interest on calls do not ajiiilv aflei- win Uir' tii. 817 ■ '" )iurposes for w'lieh may be made, 84fi for nd jnstment of rights of ((intrilmtorieF, Si"2 i:t 4v,;. for costs, S(i4 for debts, 849 et s-v/. right of creditors to leqtnre, S4i» set off against calls, 74'-', 8r)7 costs, 8ri8 time for mnking, 846 where contribntories have already made uneqnal jiaymeiits, S5'2 >See C()Nriiii!rrui!i!;s. CANAL COMPANIES, .shares in, not within the Jlortmain acts, 452 Sec CoMTAXiEs r.uvi:iiNi;i> r.v S it \'ict. c. 10 CANCELLATION efleet of agreement that shares taken might be cancilled, iV>7 d t.i-q. of imini)|ier allotment, 521 of r(gi>ti'ation, 1 1 1 ofslians after forfeiture. 5-30 elleet on liability as contribnterv, S37 3. 301 change in amount of, jierson not bound to take shares, S93 conversion of, into stock, 4(i5 ilividing, 405 division of, into shares, 301 etfect of exhausting, 307 varying the amount of, as stated in the presi'ectn.s, 393 increasing, 101, 102, 397, 401 by preference shares, 400, 405 loss of, a causi' for winding-up, 033. Sec AViM'INimi" loan caiiital, 301 GENERAT, INDEX. 1159 is iii.ulc on liiiM, ., S48 ,• afU'i- wiu.Uiit' "!'. r>2 ct iv,;. lont-s, S5i i:ta, J;i7 <'s'7- V r IlAl.KS sluiivi', 395 rAPITAL-cuH///i»n/. of coiiijiaiiic's — ciiiitiiiKiil. iiiisrei>resciitatiou as to amount sultsoiibi'il, 71, 75 must be paid up in (.'ash when, 783 nominal and i)aid up, HOI III' companies governed by 8 & 9 \ iot. c. ]fi...399 Companies ait, 1SG2...11)1 -40" 26 & 27 Vict. e. 118.. .399, 400 of cost-book mining companies, 94 plying dividends out of, 321, 431, 432 position of sliaroliolder who has received a return of, 413, 414, 7S6 power to iucreiise, not same as power to borrow, 11>], 391 ct mq. powers of majority over application of, 321 reducing, 322, 334, 4o2 ct srq. siiarc capital, 302 subscription of, when necessary liefoie calls arc made, 409, 410 before commencing business, 21, 4uP, 410 uuenlled, may bo mortgaged, 192 and note (/) miiiiiid u]i, an asset, ti3l varying tlie amount of, 392 what may not be paid out of, 321 cl scq. CAUKIAlil'; of winding-up order, 686 (.'.\S1I payment of .shares in, 30.">, 783, 785 t/ scq. what is, 39."), 785 ct «•'/. Ci;i!TIl''ICATK. Sec India No. I. of chief clerk in winding up, 748 of debts in winding up, 715 ol' registrar that a person is shareholder, 45 note (o) of builiiing societies, 018 of registration under Comiianies act, 1802. ..Ill co[iies of when evidence, 112 nf title to shares, 64 lilaidv transfers without, 476, 479 company cannot dispiite truth of, 64 delivery of, not necessary to complete transfer, 490 duty to grant, 64 in companies governed by 8 ct Vict. c. 16... 103 by Companies act, 1862. ..120 liability of conipan}' for issuing false, 484 sliovs only the legal title to shares, 64, 104, 484 note {h) scrip, 65 may become transferable by delivery by usage, 66, 474 iJ'STriS (JUK TRL'.STIiXT, business carried on for, 114 company has no lien on shares lield by trustees, for debt'- of, 457 interest in shares can bo charged by a charging order, liil liability of. to indemnify trustee, 509 pay calls, 46 not contributories, 802 oNccptions. 802, 803 not shareholders, 46 niAlU.MAN of directors luider Companies clauses act, 329 under Companies act, 1862... 338 of meetings of shareholders \inder Companies clauses act, 331, 332 under Comiianies act, 1862. ..341 Sec DiUEc'ioHs, Mki'.tixos. and Indi-.x No. I. UGO GENERAL INDKX. i 1 ii Ii ClIAMnKKS, proceedings in, under windiiig-iiip onkr, t386, 6S7 <'IIANOK IN CONSTITUTION. See iMajuimiy one di.ssoiitic'Ut can forliid, 319 CIIANOK OF NAME OF COM 1 'A NY, ]12, VIA uH'cct oil autliority of jnililic ollioor, 208. iSeo Ixdkx No. I. sureties, 258 note (') CHANGE OF SCHEME, alloliiieiit with notice of, 25 authorised by act of Prtilianieiil, 21 l>y form of ajiidicatioii, 23 by .sjiecial agreement, 22 by .sub.sequent assent, 2 J . between conii)aiiy as projected and as formed, 10—2!) by changing amount of capital, 393 elfeoc on liability as contributory, 771 right to rectify register, 122, 123 •See I'lJO.srix'Tus CllARGINO ORDERS ON SHARKS, MQ '■/ sr,,. elfect of, on right to receive dividend.'!, AM on shaivs held in trust, 4C1 in cost-book coin])aiiies, 403 only in public coni])anics, 462 CHARTERS, 3 acceptance of, 97 apjilications to Crown for new, 323 in.junstion to restrain, 98 note ('(/), 323 dci)arting from, 98, 131 enrolment of surrender, 90 grant^of, 97 how obtaine 1, 99 illegal use of, 131 obtained by fr.uid, 593 scire facias to repeal, 98 surrender of, 98, 99 re-strained, 323 validity of, 98 CHARTERED COMPANIES, 3, 7 banking under 7 & 8 Vict. c. 11 3... 129 niember.s of, 129 registration of, under Companies act, 1862. .111 returns to Stamp Ofhoe, by, 129 formation of, 97—99 liability of sliareholdeis of, 252 members of, not partners, 98 Si ■ CHAllTF.ns ; CoMl'ANII'.S ; ColM'OIlATIO.V chp:mists, companies carrying on business of, 138 *;'HE(.)UES, bankers may pay, if drav.n by ik fndo diiei;tors, 190 directors not liable on, if account overdrawii, 196 forgery made possible by careless drawing of, 487 note (/() irregularly signed, 174 power to draw, 196 CHOSES IN ACTION, debentures arc, E.r parte Rinshurg, 4 Ch. D. 685 shares how far, 454 transferees of, position of, 171, 180, 193 set oir against, 275 nEXEHAI, IXDKX. CIRCULAR.^, " . ' liaiululi'nt statoiii'iits contuinnd in so < i? ■ssued by directors, wJieii i,n,mtal,l.> to con.muy o,r. •LAI.MS (•nil not )m> won ml u]), C20 ilisinites l.etwooii iiiei.ibm of, r,77 i.ul,. („) '^ximlsion fro,,,, 3U3 note (.)/ry2S, lot!, (ir rO-DJRKCTORS, (•oiitiilmtion 1, hvcoii, 378. 3S0 Mulemiiitv, 37j liability ot; gciir^rallv, 244, 37 '> ,t „,, tor fraud, SS n;>tiai,s by .■..ini.anio.s in, 101 note (-/) !I0!» ■v^^^ter may b^ kqlt '-i.'y^V^l'" "" '"""• ''' ""^^ '^'^' '^ ^ ivotiluMtion of, 12] ,See ArPKX,,,^ X„ j •OMMKXCKMEXT. SooaLoJUxK on,abilityof,s:,areli„lder.s, 25 f ol I'OTvrr.sof diivctois, 15S of winding' iij.cjiiiinil.vjrilv, OUJ STib.joct to .suiwn-ision, (>or. voluntarily, G61, 877 of liH' assuiaiioe romi.a„i,.s, ,m, Hm '-(t.MJJISSIOXKKS for taking evidfiioj in winding „,,, oyo '•••inilTTEE Or LUXATIC, JO \ote by, under Cuiupanio.s olauses act, 332 (■".MMITTEE OF MANAGEMEM •iifinbers of, not eadi otla^-'.s a.'-,.,it. 1 ij l.rovi,ion.,l, „otcont,ibutori,-s7(i'i' '-■'J.MMOX LAW. legality of coiiijiaiiie.-i at, 130 COmiON SEAL, 220 ct so/. 8,eS,;u, COMPANIES. AndsoolN,,r:xXo.J. 1- Companies generally, I'lassification of, 7 ,/ vv/ lSteSM;'^';?''^"^''^'''''-->-l-ations. ,, „ list of statntcs relating to. 9 '3 table of classes of, 9 table of .statutes lelating to. ii3I aboitive .SceAnOilTIVKCUMPANV actions by and .igainst, 202 f-rsvo r.-.ow... ci a ^xloj.tion of contnicts bV H7 ''■' ' ' •'^ ""^^ ^''''"'"^■« agency, doetriues of, 213. See A.:i.-nt ama ganiate, jmwer to, 183, 323 h!^''t!'-'r''^'"^- S-^" Amalgamation KaiiKiiig. See iv/ra, No.s. 2, 5, 7, aud 8 11(31 '>i:nta- allow- 1162 OENEHAI. INDKX. C'OMPANI KS— w//^rt(w/. 1. Companiei generMy—ciDitiinia/. lankruiitcy "f, CIO lioiTowiiif,' by, 187 cf xiq. Sec I'xUiiiowisi; ^Mom.y business of, ('xtciiding, 19it, 200. S Hi'.sinkss ok Cumianv buying its own shares, '2W calls on sluireholders of. See I'Ar.i.s eapncity of, 161 rt srij. capable of being wound up, 617. See WiXDiNd-i'i' capital of, ;ii>l. And .see Capita I, in eonipanies governed b}" 8 & 9 Viet. >■. l(!,..yO'J acts of 1862-7... ;01 division of, into .shares, 393 increasing, 397, 398 loss of, eifect of, 397 iioniinal and paid up, 891 reducing, 397, 404 varying amount of, 393 chartered. .See Ciiakikk ; and I'n/ra, Xo. 3 < oniniencing business before capital is subscribed, 21 constitution of, departing from, 323 contracts of prnjier loini of, 22o. See C'oNritA( rs ratification of, 17">, 223 cost-book. See Cost- HOOK MiNiNo Cipmpany debts of, what are, 716 dilferent sorts of, 71, 93 directors of. See Uini.rruus dissolution of, causes of, 608 r/ sfj. eifect of, as regards creditors, 885 See \\"iNi)iN(i re execution against, 276 rt .•, Xo;^. by Act of Parliament, 101 See CduI'uuation ; and in/'irr, Xo. 6 by registration. 111. See infiri, Xos. 4 and 7 insolvency of, tests of, (i29, 631 insurance. See L\sui!.\nck Comi'Amk.s internal management, court will not interfere in, 574 el ... Irish anonymous, 8 n. Joint-stock. See infra, Xos. 2, 3, 4, .", and 7 liability of. See Liaisimty. ntteui]its to limit, 244 el siq. for acting on forged transfers, 483 for acts of agents irregularly appointed, 159 in particular cases, 182 ct sc^. directors, 155. See Dikf.ctous Avheii irregular, 155—158 members, 154 })ronioters, 146. See Promoters for contracts of wiiicli they have Iiad the benefit, 235 for fraud, in damages, 74. See Fual'D for fraudulent reports, 81 ■I 5 CoMIANV ty ■ni.ii,- Ofrii'i:;: o. I. ■ : Injim rios" Xos. :] and ? 74 '■; .■■rq. fit, 235 GENERAL INDEX. f'O.MPANIKS- n,.„h,onl. 1, tompanies ger.erally.-,,,,,//,,,,,,/, "«'"'.'ty (.1— t'o„//„,,f,/, JoiKoo,ls.siipi,lie,lto, on ,. ml if «>05 or money l,orn,«-e.l, 187 rrv'y's,,.,, , '""• statements of AirJ^, /, ,^Z^ TV""'' ^'"'^' 'oi' use ami oecnimtion, •>-57 on )ill,s of e.velian^re, ISa.'^SO r/ <,„ «i,„ i. on,non,issovynotei.]sV^O rlf" on nnseal,.,! instruments, 220,'/; J" -^"^ to be imi.lo .•ontril.utorv for .slnires i„.I,I i , ■. . - ,. ,.''•""'■'■ Con.i,anie.s aet, ]S<|-/ tj '"''' ''> "' '"'" '"'"i»yof«Imn.hol,i,.r,si,. S.Te'l ;,„,,.,. • ^ !-'on shar,.sofmeml,..r.s, !;<(; sj / ' •'' ' •^"^'^'"'""i l"".'te;l. See LiMiTi:!. L,\,„, ,■v "mna-ement of, :i98 cl ,scr, '' " '^'-""laTV memljers of, power of, 312 "»"'<= o(; 112. SeeXAMnotCoMrANv use (if in aetions, Tua nature of, 1 yotiee t.. ivlint is, 204. See Xnri.F lironioters of, '^'■'- '"./'", Ao. 3 arc not jiartiiers, IS -'X \(\o See 1'1!0.MoTJ:I!s ' i'i"i"'i''y of, C'ireet (jf wiiMiii- up „n .lealincr.s wit], ,;,;,) 'lan.liilent ,li.s,M.sitioii.s of '^8 l'i';';l."'^-lus of, nature an,l effect of lo lo c . „ "lSio,fi;i?^,;::i •'•-'!'-•■--• CO...AXV '■'■'•onstruetioM of, Im '' '' " ''" -^ '■'^'•^' iL'gnnleil as mii.sanees, 3 "■,;'ister.s of. SeeKK(i'i.sii'n ii-ulaliousof, i .lua / "lireetors iiouml to observe Stil "liroetory ami iniperalive, i72 rt .s,„ , . 1'"''' V"''*^''''' ^""' "otice of, ]»i5 iisiijenee of. 37, <»10 "'IK s in. ,>ee hliAUKs. '"'.Vin- in another company, 200, 20ti ll(i3 ■v I' Jlisiii: .\(irA\(!i; Pi!i;- f .' (7 ,v« :c'/. 'uying its own, 200 'wieliolders, may be, i'.i •Jo of si sl'oliati liares, •JS7 '■/ , See S . 10" of, by iiienibi-r.s, 370 ■•-1:0 tin^r too .soon, 21 Mil ALi;, Tj;a N>Fi:u OK Sua 1:1- riptions to, returning, 20—35 iiiMg 1111(1 bei "tFH|;u »gMle.l in name of public u'liecr ■( 'i^'iR<; of, elfeet of, 08 note (/) 205 formation of, 10!) former nu'inliors, 2*i) liability of sliarelioltlers in, 1o eroditovs, 252, 235 ct ycq. See Kxi:(;i"ni>N, LiAUii.irv lien of, 458 manaf^enieiit of nllair.s of, 208, 200 nieniliers for tln' time being, 285 Itnblie (illicers of. Sen I'uni.ir Ori-hnit retnnis to tlio Stamj. Olliee to be mado by, and eiVeet of, 101), 110 transfer of sliares in, 110 wlio are sliaubolders in, 100, 288 3. Companies governed by 7 Wm. 4 & 1 Viot. c. 73 ('ha Letters Patent act) actions by and against, 2C5 li v,vy, calls on sbareliolders of, by whom to be made, 408 calls for leimbursenicnt of sbarcliobbM's of, 412, note {■>:) discovery of sbareliolders in, by creditorw, 282 execntion against, 289 how sbareliolders in, are, to be, jivoeeedcil against liy creditors, 280, 2S9 liability of sliarebolders in, to creditors, 252, '289 management of nd'airs of, 2'J8, 209 nature and formation of, 90—101 arc not corjioiations, 100 are )iu1i]io eomjiaiiies, 10, 4(32 v.bo are members of, 101 pa; menl of dividends by, 437 transfer of sliares in, 101. See Ti!ANski;i! hk Shaiii'.s 4. Companies governed by 7 & 8 Vict. c. 110 (tLu Joiat-stock companies registration act) are jmblic eomi>anies, 10, 462 contracts on behalf of, how to be made, 225 when nindc with the directors, ;528, ;5(!8 liability of shareholders of, to creditors, 280. Sec Sci. F.\. provisional registration of, 128 registiation of, under Companies act, lStJ2...111 who are sIiMiehoMers in, 44, 128 when formalities have not been observed, 4." 5. Comp3nit:S governed by 7 & 8 Vict. c. 113 (Banking companies act) liability of shorebolders of, to creditors, 280. See Sci. l''.\. membeis of, ] 20 nature ami formation of, 120 registration of, 114 6. Companies governed by 8 & 9 Vict. c. 16 (Companies clauses act) are jiublic comi)anies, 10, 402 accounts of, 441 . : right to insjiect, 441 borrowed capital, 193—105 caiiital of, 390 calls on .subscribers to, 408 by whom to b<; made, 418 for reimbur.senieut of shareholders, 412, note ()•) certificates of shares in, 103, 104 contracts of, propei' form of, 227 when between company and its directors, 328, 308 delegation of powers of director.s, 329 il imninst l)v I'l'oilitoM, loci of, 109, no >9 Letters Patent act) liy cnHlitors, 280, 2S9 lies clauses act) OENEn.U, INDKX. COMPAXIKS-rr,;.'/ ,„/ 6. Companies gove;-.:ed" by 8& 9 VW p io/« """^■'miit.v,' . i«ht to, bio • ""' ''"""^ "'. •<-'- " •-'/. i-iiDova! lit; 027 i1ivu1cih],s ,,f; j,;,v„|pnt ,,|' j.j-. joi mat lull of, ]02,;,v,„. j!-I-^ion,shan.hol.ler-s,i«htsto,333,,.,i of .sImrchofikTS to .re -litors, !/|?'. m," li.n of; 4Jr '° ""' 1""^^^ ''■ ' "«"i'-t hy crclito... 201. Soc S. , management of, 327 ct sen Itowcr to l.oiTow on inortcM"i^ or l,„n,I in. i,.- coniimiiy not cstoohe,! ;,,- i^,;, «^f'ri-ction oi; 108 ^' I'flcc t of improper insertion, 107 not conclnsive, 10*3 proper form of, :05 unsealcj, lo"), ]0(J rifjlit to retire from, 525 sliareholilfrs in. uho are, 104 (li.scoveiy of, I,y creditors •■'S'' meetings of, 331. See MkctIn,;.. powersof, 330,<6vv/. register of, 104 — 100 votes, 331. .s,a V.JTFs slinrcs, eonver.siou of into sto lorfeiture of, 333, 529 power of issuing', ,';;e. surrender of, 525 ' transfer of, lOS. 4(37 lUi —CoiUd. I'a. k, 009 3 Li 9 Statute of Frauds and, 2: winding up ot; 901 r' . «;-./. fmS" r!T '^ ^^^ ^"^ °^ ''''-'^'^ registiarioii of, 114 transfer of shares in, 4d8 transferor of sliares in, 129 who were contributories,"749. See \o S n„-i o ,, table A., 118, 330r^^vr,. " ' '"■■'•^''^"o>< can. ^407,.., S-C...soxS..n.uo.oK,.;C.u,,.soxCo..rti person.s to make, 403 lialiie to pav. 42.5 when sliai-e;; iiave l/e.-n -; ild (•■apitalot; 401. See C.^I'it.ai change of name by, U2 e'imstitution of, 333 oonfnicts, juoper form of •■'o I 111". 423 See C'liNTiiAcr- 'luectorsof;336<;.e?. See DniErrJ^i^ aiipomtinent, 307 deh'gation f.f powers, 3J3 disiiualilieati.in, 307 duties of, 338 pay, 337 icmoval, 337 dissolution of, 870, £85, And see l^m'.x No. I. iim; (iENIiHAL INDKX. C(mV\},,l. 8. Companies goverced by Companies acts, 1862— 1886— 'xyi//. /"/'/. ilivicli'iiils umli'i, ■\'-iS cxaiiiiimtion (ilatrairs of liy ins]ir(ti)is, 33<1 forfc'ituii; (il'sliari's in, ,1.10, Sue Fdiifi'.ii'I'Iik ok Sm \iii:.s f'lirniatioii nt'coiniiaiiics umlcr, 117, 813 , iiis|i<'('ti()ii III' arcdiiiils of, ll'i lialiility (if, on coiitnict not iindtr seal, 228 of nii'iiiliiTs of, to cic'ditors, "TpI. Si'o Liai'.ii.i iy liill of, l.'.S, .'^iM! LiKN lii|ui(lators, on wimlin;; ii|) of, tJOO li s"/., S7H fl mi/. .Sco I,ii.irii'.\iui.> nuniftfjcMncnt of coinpanii's' aD'aifs, '.i'i^i it ai''/. meeting's of, 110 if snj Si'C Mi;r:riNi;.>* cliaiiinnn of, 141 niinntcs of, I! 12 notici' (.'onvciiin^'. 1J0 proxies, 1(2 ri'solntions 810, 313 votes, 1)1. See VoTKS meniliers of. Seu CuN'Tisiiitroitir.s, I'Asr .Mi-..miu.i;s, Su \i;i:iiio,iii;i;>. wlio arc, lit, 7.")1 wlicic < omiinny not formed \indcr nets, 12S annual list and siininiary of, to l)u made, 12.") liability of, extent of, 2r)2 ])owers of, 11i», 1-12 re<,'ister of, 120. See J!i;i;isTr,\ri<'S »[■■ .Mr..Miii;iis corrertioii of, 120, 121 on \\iMdin!,' up, 12;', 75.'> iu-sjieelion of, 12'! need not lie sealed, T-O rij,dit of to retire, .')2fi memorandum of assoei:itiiin of, 117. See Mr.MoiiAMU'M or .\smi( nnnN . jio'.ver to (lianjje from limited to unlimited. 111, 33"i jnircliaso by, of its own shares, 200 reeonstruction ol', 8iM W ki-i/., ".iOO re^'istration umler. 111 it mi]. See, also, I{r.i;isri!A I ion certitieate of. 111. US en'eetof, 111, US of companies not formed under, 12ti, 111 .sale of as.sets in voluntary windin;,' up, 8S2, 801 cl »'/ side of sliares in, after windini; up order, ed'eel of, .'^It!. See Sai.i; ui' SlIAlLKS Statute of l''ra\ids, 227 surrender of shares in, ,"12.'). See Sri:i;l'.NIil' ; transfer of shiires in, lii7. See T|!ANsi--k1! hk Shaui'.s windiuff U]i of. See \ViNiiiN(; vv who are coutriliutories in, 7.">1. See ( on ri;ii!i idiMiN what eompaiiies may he wouml uji under ai ts, (117 9. Companies registered under ao: of 1862, but not form3d undsr i; chanfjc of name. 12S constitution of, 314 coutriliutories, who are, 7r)2 extent of liability of memliei.s, 2o3, SID liow wound u|i, 017 members, who are, 1 28 ill companies formed ori^'inallv under 7 i^ S Viet, e, 110. ..12* under 7 .'ic 8 Viet. c. 111.. 12:t under aets of 1850— 58...12H registration when necessary. See Rr.Gi.sni.vnuN ellect ct scq. See PuDi.ic Oi'rii 1:11 extent of members' linljility, 252 ■ .See CosT-r.ooK MimN'' Ur Ol'l'K KIl «-.K\EHAK I.Nl»i;x. "MI'AXIKS CLAI'SlvS ACT ^ c ^ ^^^ .-'l.rt All. See C(..MfAMi:s (!,,v 1107 KIINKIi MV 8 A f> VlCT. 711 ^"'1', no. S,.o ills,, AUK.VNOK ■> (OMl'KNSATION to (I i rectors, 388 COMIMJOMISK I'.v ollicial li(|ii!M,,ti)r, rO!t 111 wiiiiliri;,' 11),, 70!» viiluiitiiiilv, 8M1 l>-MU, ..>„„.,■ of ,.o„,.t to s,iMcti,miinvi,„lii,, . of'I'Mil.tfiillmhilitytotiikc. slincs l.v II •• with cloul,tfi,i sharrliol.l.Ts 50] «ithi.r..so„t, eir,.,:t„ton,m.st.m.ml„.rs. so, S",; when oi',|erc(i, >i■Z!^ et ■■,")0 '"ON'CKAf.MKXT, iiii.src]MrM-iitatiiiii by, 7(i t,„,uIc.r§38ofco,n,.„ni,.,.ct, l,S.;r. 01 0' OXDITIOXAI, <'lh-r to t.ilu' shares, 17 I "EDITIONS, ni-oc|aaiic(i ofslinrcson, 17 77,s -s™;v::r;;:i"ls:i *-!f I'M.:, .« comlitioiis imrah-nt, 77,s """"^•' "', 7,S rfs-irj. '■oiulitioiissiiltseinioiit, 77!) "ONDrcT. .Soo EsToppFL ^ ^^^^oMliictor. aiul other, investigated in winding „,,, OSO c^ s,:,. to transfer of shanks when neeessary, -104 Ur. ' I'y wlioiii to be ol.tained, 407 ^ iwwer of court to ^iv,., in windin" ni. H-U to transmission of shares not necessary, luV ' 'X>inKRATr0X, '■■'il"'>' <'i; ill agreement to tak.. shaivs, og ,, ,,,,,^ .,o,. ...-ereco;;:.^Sro/^i-;^:;;:-^^ ^..;-.|.e.toa.c,.en.enotat.iberty'to';;:;i,;l,,,^ ^''':tt:n;;;ti,:2;i'^;.;:i^Cl';;f-''>'Hable A,r ex,enses incurred in Mibseription returnable thou-h deed si.r„„,i ti policies issued ./.. ,,,,,, ,,,,,^.^. ^, ;,;^-.-;|; ^^ _ ^ 'XSOLinATIOX, See AM.v,.o.MA-nox 01 sliaivs into stock, 3yi,t •^O.V.^^I'IHAt'Y, ■ indictment for, 87 as !-=»" IIGH (ii;Ni:nAi. iniii:n. in f ! (■(iNSTITI'TION OF COMI'ANV. Aii'l mt Im.kx N'.). 1. ii|i|ilii iilioiis to I'lirliiiiiuiit f(p| iiuwcis lualtir, :JJI, 'I'^ll uinli'r L'iiiii|iftiiiis art, IHiij ..;!,i;!, ;ii:i (if coiiipauii'H n'^ixtcicil Imt not I'lji'incd uiiiiranie e.ornpanies,. 635 to carry on husiiu'ss when iniiiliei;, 24!) to take shai'cs. See AfiiiKKMK.NTs ; Ai.i.tir.Mi.Nr ; Ai'i'Mc.viiiis im.. SlIAIlIvS under si'et. 25 of tlic Cornjianics act, 18G7...395, 783 ct ■«•'/. undeistaniliiig, not a contract, 91, note («) when public oHiccrs are to sue aii-'/. 10 ir.NT ; Ari'i.R'AT[os vi.. .,1 oil, -200. Soc I'l !:;.!' ?0 ■, 3ro;r8o 370, 3S0 , Ul ,dcr, 752, S19 HEN Eli AL I.Vl>FX. CONTRinUTORIES-, „„,/.,,,,, list of, 7-ir> if ^n,. Sir I isr,.t r v gUllorally, rriO r/ ,v,v/. in voliiiitaiy wiiidiiitf iii> 8,S4 persons sccoiidaiilvliaM.C 7 lit classilicatioii i<{, JM npoiits, 7(il note (/•) nllottfos (if Hharcs in (■on.|.l,.t,.Iy f„rmo,l .•nrnpani,.,. 701 m cont..,M,,Iat...l n„„,„.ni..i, 7 ,3' ^°^ applicants for slmies, 760 ,■/ .y,,, bankrupts, 81.1 '' cestid que trust, Sdl coumanios, 807 SSrsir""""""'^ '" ^'''''' ''^"«''' '» oaae, oi, 778 diri'ctors, in rospect of .(nalitiontion sl.aros, 790 et sm of slmres transfeirwl to or l,y tlieni 830 s^ii executors and a.lniini.trators 812 ' ' ^^ fortoitoil shares, in cases of, 8.1-2 ty ,<,» fraud, in cases of, 77(5 <^ «,«. '' licirs, 813 ' infants, 809 legatees, 812 lunatics, 811 managing comniitteo-mpn, 766 married women and tlicir luisbands. 807 niortgagoes, 806 ' ' equitable, 806 past members, 749, 816 <:t nfq. cost-l)ook companies, 819 registered comjianies, 819 unregistered coniiianies, S18 persons wlio hdvu acted as sliareliolders, 758 agreed to become shareholders, 760 ■ in formed comjmnies, 761 in contemplated comi)anies, 763 agre jtr;;£'x.stir^^r' '''^" ^°'"p"«ment, in casefSSi^lf' ''"' ''' sale of shares, in cases of, after commencement of winding up 836 . ,""0'-e commencement of winding UP saa acnpholders, 763, 7!)<) " ^' ^"^^ shareholders generally, 756 by estoppel, roT'cl scq. in companies not observing their prospectus, 771 4 F VQ 1170 GENERAL INUEX. CONTRI BUTORIES— cow^tnwwZ. who are, shares issued at a discount, 787, 788 illegally issued, 774 passing by delivery, 803 subscribers to memorandum of association, 797 though altered after signature, 773 sureties for payment of calls, not, 768 Hurrender of shares, in cases of, 837 et seq. transfer of shares, in cases of, 823 — 837 after company has discontinued business, 829 avoid liability, to, 825 directors, to, 830, 831 incomplete, 831 infants, to, 828 invalid, 829 sham, 825 where transferee has been accepted by company, 823 et srq. has not been accepted, 831 trasts for dishonest purposes, in cases of, 802 trustees, 801 in bankruptcy, 815 for company, 801 underwriter of shares, 761 adjustment of claims between, 852 appeals by, 7 i8. See Appkals cslls on for adjustment of rights of conlributorics, 852 for costs, 859 for debts, 849. See Calls on Contributories compromise between company and contributory, by liqiii'lator, 709, 6.2 past member not discharged by, 857 division of surplus assets among, 867. See Windino up . ellect of allotment, 769 boing on the register, 569 delay in repudiation, 768 et scq. power to rectify register of members, 755, 832 entitled to a copy of petition for winding up, 655 appear on petition, 658 atteiAl winding up proceedings, 687, 746 petition to wind up company, 625 under old acts, 639 Companies act 1862... 639 in mutual marine assurance societies who are, 761 limit of liability of, 853 liquidator's books evidence against, 705 persons who have agreed to receive payment in cash or shares not com- Eellable to take shares i'fter winding up, 762 „ it of, to inspect books of company, 688, 704 set off by, against calls when allowed, 857 wishes of consulted in winding up, 630, 688 CONTROL of directors by shareholders, 303 CONVENTION with Belgium as to companies, 914 France as to companies, 914 Germany, 914 Greece, 914 Italy, 914 Spam, 914 CONVERSION of paid-up shares into stock, 405 CONVEYANCE by liquidator, may be made, 708 upon trust for creditors, resolved upon by a majority of shArcholders, 601 injunction to restrain, 579 GENERAL INDEX. Seo Firxns of cash or shares not com- jorily of shareholders, 601 CONVICTS, 38 administrator of, 38 COPIEr""' "'"''"'"'" '""'^'""^^"y' 38 nghttohave, of books, &c., 314 under Companies clauses act, 333 of petition to wind up 655 CORPORATE SEAL where necessary, 220 ti scq. iseo Seal of Company CORPORATIONS generally, 1, g contrt^^'"^ "«'''"«'' 262 .<«y. Co5:i^° ^^^ °"' ^' *''-'-"!«> effect of. 246 et se, dissolution of, 608 ct ,eq. '^omnanies act 1856. 228 Companies act 1862. ..228 Companies clauses act, 226 Companies' seals act 1864 229 liands clauses act, 228 Metropolitan giis act, 226 may be a shareho?de;"43''''^' "'^'' ''=^ ""^"^ (*> SSS,^S,Sr i;Vonstitutio„, 319 power ofLjori;:y\tm;mi^.?o?3'l7'''" "'■"' ''^ presuming to act ai^T/,1/^not^,f) °^ "**^"''' "'"' ^^3 '■luncatioK of contracts by iTf; CORRECTION Sec Index No I ' or mistakes in aci'oiii.u Qo!> \. of register of sharholtrs, 'T, 6 3° 75^ S . R COST-BOOK MINING COMpIniES "'"'" accounts of, 445 447 ^^^^'^^ calls m how made, 408 interest upon unpaid, 414 capital of, increasir 398 ^ ^' ^^^' 270notc{/0 cost-book, wliat, 94 customs relating to must bo proved 95 execution agaiust members of, ?593 ' • formation of, 93 g'^'""'"'"^ f*"- J«l*ts of members, 463 liability of shareholders in, to creditors 94 on credit, 192 ' ' ^ for money borrowed, 192 of past shareholder, how limited. 95, 819 1171 ■■*??TI^Iv- 1172 GENERAL INDEX. COST-BOOK JIINING COJIPAXIES— fo?i62...858 in winding up insurance societies, 737. 866 of attendance on settling list of contributories, 746 note (I) of creditor's representative, 749 note (c), 846 of petitions to wind U]) company, 658 on staying jtrocet'ilings under, 664 of proof in winding up, 714 of liquidator, of uppials, 863 not entitled to, out of mortgagee's securit}', 866 payment of by, 862, 863 taxation of, 863 note (s) security for, bond given for not invalid, 265 by foreign company suing, 263 GENERAL INDEX. COaTS-coniinucd. security for by limited company siiiiiir ofi, by unhmiteJ company suing, 26^ COUNTY COURT, jurisdiction to wind up compames, 615 616 budding societies, 921 "■"• ^^^' ^16 provident societies, 916 JUUginent of, against company, execution nf oqa procedure in, 654 note (i) "^^^cution of, 2S0 COURT, interference of, in internal management qni k-, , having jurisdiction in wiadin" u.fr ? 7 7 ' ^^ '^*''^• sanction of, wlien required by IkjEVor 70S summary powers of, i„ wi.iding u 689 /< 1 over directors, 694 ^ ^ ' *^ **?• to arrest, 692 to examine persons, 689 to order delivery up of proparty, 693 paymout of inoncv, 693 oee, also, Ixdex N... I,' COVENANT, b^is^s^tera^'""'''^'^— '^'^^ to pay out of funds, effect of, 245 ct sen CREDIT, misrepresentations as to, 207, 217 CREDri'ORS, rights of, against promoters of companies, 87. 143 See PiiojiOTEiis ' ' '. i^J against companies, 245 cl sen. , 276 ct «»» Q„„ i^ arrangement with, in w'ndfng^iffio^'' ExEcunox by railway companies, 904 for the acts of their directors, 155 tor the acts of their promoters, 146 235 proof of debts by, in winding up, 713 ct sea . where they are also membVrs 736 stajnng proceedings by, in whuling up under old acts, 669 ° ^ , ,. . Companies act, 672 when hmited to funds of company, 246 279 9fin .>«^ where, companies amalgamate,^ 25f'.r5.fS4'S5^«^ , Jsee, also, Companiks- DiiiPrTnn^ • w,\7 ' against shareholders, 280 ct 4 See ExKc'uiov Sci ^f'. at the instigation of the Company, 66 559 ^^60 ' m companies govenied by 7 (Jeo.^4, c 46 285 o ii 9 Vict. c. 16.. .290 Companies act, 1862. ..294 751 registered but not formed 'under Com. . pames act, 1862, 127 eo...b.ok c„„p..>„ XuV4Sr.'„T„rs s ?,'/■ '" 1173 1174 GENERAL INDEX. CREDITORS— eo»i//«?«;//. rights of — continued. have no lien on company's property, 278 injunction against, when suing shareholder at instigation of directors, 560, 597 See, also. Injunction inspection of list of shareholders in. See Insi-ection ; Index No. I. liability of executors to, 539 not protected by § 38 of Companies act, 1867... 91 note (») reduction of capital in cases of, 403 rights of, on amalgamation of company, 895, 897 right to attend settling list of contributorios, 746 right to have a call made, 412 mandamus for, 412, 604 secured position of, in winding up company, 726 wishes of, as to winding up, 636, 688 CRKDITOR'S DEEDS by company are void, 669 CREDITOR'S REPKESEXTATIVE, costs of, 749 note (c), 846 CRI.MINAL LIABILITY, for conspiring to obtain settling day by fraud, 87 fraudulent accounts, 446 issuing too many shares, 394 publisning false reports, 87 paying dividends out of capital, 433 selling shares in a company which has no oxistpnce, 496 of illegal companies, 141 CROWN, not bound by Companies act, 673 power to grant charters, 97 — 99 piiority of debts of, in winding up, 717 CUSTOMS, negotiability of blank transfers by, 47 4 of brokers, 515 cost-book companies, 94 not Judicially noticed, 95 stock exchange, 501, 502 .scrip may be transferable by delivery by, 66, 474 DAMAGES, action for, in cases of fraudulent statements, 73, 88 — 90. See Fraud company liable to, iu other cases, when, 209 for exclusion from register, 124 for fraud, contributories' right to when company is winding up, 753 for wrongful dismissal by winding up, 731 measure of, " for ijreach of contract to sell or buy shares, 498 for excess of authority, 241 note (/) in actions for recovery of shares improperly obtained by a director, 367 in cases of invalid issue of debenture stock, 243 in contract to take sliares induced by fraud, 90 in rectification of register, 124 recoverable by company against an agent for agreeing to take sharej without authority, 494 note (k) proof for, on winding up of company, 716 instigation of directors, 3—90. See Fraud for agreeing to take sliarej DATE OENEBAL INDEX. 1175 of commencement of compulsor, winding „p, esi voluntary winding up 664 877 J)EATH ^^^ COMMEKCEMENT £lit°/'nf^ "'*!«'• See Executors liability of executors to calls, 536 as contiibutories, 812 Hght of liquidator to^S'eSe on, 700 DEBENTURE HOLDER, nglit to petition for winding »r. „p DEBENTURE STOCK ofrailway company, 295 DEBENTURES are cJiosos in action, 180 do not pas Ki a bo„f;:r J\renewal of oth'ers, 197 floating^security! 197 ^"''* "^ '^'''''' ^°° ""'« (')' 541 J^I^P^f SrliSg;^^^:- - ^^ 193 note (,; . liability of directors for 243 ^^ °°' ^^' ''^ «<^-> ^96, 237 :S taEfd!T98"' *'' ''™"^--* '^^fore its formation, 177 7to^drctt;ji7s^^^.^«^-e(, nature of, 196 ssKi-fi; sr.?sKf i,f ^" '■»" rights of assignees of, 171, 180, 740 DEBTS, calls for payment of, on contributories, 846 companv unable to pSrwff SF"'"'' ''' chsputedf, when gt-oif;,d for winding „p 637 fiiture, may be mortgaged 192 ^ ^' hability of shareholders for any and shareholder, 45, 49 et scq., 757 execution of, by member, 44 public bound to notice, 165 See Companies DEEDS OF TRANSFER, blank, 472 when necessary, 467 DEFENCE, illegality, where a, 139 of actions by official liquidators, 708 to actions for calls, 428 for dividends, 437 for specific performance of agi'eement to take shares, 587 DEFUNCT COMPANIES, 113, 871 DELAY effect of, on an irregular retirement from company, 822 in sending in transfers for registration, 833, 835 in application to rectify register, 124 in caiTying in claims in winding up, 723 in repudiation of shares, 25 et scq., 73, 85, 771 when a bar to relief, 582 et scq, DELEGATION OF AUTHORITY by directors, 156, 329, 338 of power to accept surrender, 513 of powers by company, 322 ;e3 (i), (m), (h) ake shares, 587 GENERAL Index. DEPOSIT PARLIAMENTARY application of ^^"'I'l DEPOSITS ON SHARES actions to compel najT^ent of, 606 torecoverWk, 29, 35,589 when returnable, 29 .< 4. returnable thou"h dc..,! ),o- i, whore fraud, 75, 593 ' when not returnable, 32""''"''P'"''«entations, 74 ./ ,fy. DESTRUCTION OP ACCOUNTS penalties against fraudulent, 449 DEVISEES, when contributories, 813 DIRECTORS, 1. Generally, afiowances to, fo'r trouble To ass"" °^' ^^^ appointment of, 337 ' irregular, 300 commencement of; 158 ^' delegation of, 156, 329, 338 ^ "-vuus guarantees, 200 indemnities, 200 misfeasance under S Ifil nf r„,v, misrepresentations n^^I^.ofpST8Ty''- '^^ negligence and wilful SeZt 372 ""'■ by relying on others, 374 not stopping unsuccessful companv '?;•? overdrawing banking account?lT/'242 lii paying dividends out of capital 432 '" profits ppro,,crly made, 364 nS"P.885 actions for, 437, 438 apportionment of, 546 bonuses ami, distinction between 645 guarantee fund to provide beW « +1 injunction to restrain pa^. nt of '57V'','lT""y '^•^«"' «6 mandamus to compel ,ayn"e t of 6O5' must be paid in mono}, 436 580 payment of, 4'2[i ,-/ s>-q actions to restrain, 571, 574 605 iu SS ^rS^'g l^r ^rds eontributorie, 84 on shares „f une,Ll a^mS, S ""'' ^°-^"'^^'^-»^« out of capital, 321, 334, 430 provisions of Companies act 1862 n« t. ^00 to married women 436 ' ^ ^''' ^^^ to preference sliareholders, 435 \\nen oieditors are unpaid, 430 where share is snbjVct to a charging order 4?6 afl« 1181 '»? 1182 QENERAIi INDKX. DOCK COMPANIKS, Hee C'oMrASiKH (jovorned by 8 4 Vict, c. 16 Hliai'o» in, not witlau the Mortiimin nuto, 462 DOCUMKNTS, iuNpuction and pruductinn of in tt lading up, 658, 602 lion on of company being woui'il up, 6U2 DOMK'IL of companies, 37, 38, 910, 911 DKUG(iI.STS, companies carrying on business of, 138 DUE, meaning of the word, 4S8 note ( p) DURATION of companies. See Dinholution ; Windino ui' of liability of sliarcholdcrs. Hee Liability commencement of, 254 termination of, 255 AS regards future acts, 265 past acts, 256 in cases of amalgamation, 258 ct scq. DUTIES of directors generally. See Analysis OF Contents, Bk. HI. .See, also, Dikectors ELECTION of directors. Sec Dikectors ELEGIT. Sec Execution scire facias after, 296 ENROLMENT of suiTcndcr of charter, 99 EQUITABLE DEBTS, jnoof of, in winding up, 722 EQUITABLE MORTGAGEE, when a contributory, 806 ESTOPPEL as to shares issued as fully paid up, 787 by carelessness giving rise to a fraud, 486 contributories by, 757 cl scq. effect of, ns between company and shareholder, 49 a.s between creditor and shareholder, 54 calls upon, 421 ignorance of material facts on, 63 foreign laws of, 913 in actions for calls, 421 in cases which are ultra vires, none, 163 of company by its register, 60, 108 certificate of shares, 64, 484, 4 86 seal, effect of company's, 199, 221 note (6), 225 shareholder, by, 48 et seq. by being on register, 60, 106 execution of companies' deed, 63 where shares illegal, 52 irregularly issued, 62 transfers in blank, 481 See Formalities ; Reoistek ; Shareholdeki; flENERAI, INDEX, 1183 l:{ EVIDENCE. Sen Inprx N„ I •ctaofoiiH iiiomlicrnfromiiiitf..« .. book« of co,„,,aMi...s I. .rr, l\, .'''ir "«?""*>. ""Other, 145 . of offl,.lal Il.,ni,l,Z 705 ' ' ' '"'■' '^^ m actions for cIIh; 428 >ninute« of n.oSs''^ l"' '"^r""' ''^ "'"'^ (^'' 3< <>' custom of.Sto.kKx..l.an,e:r.01. 5.5 ofinrorpon.'tttr"'""'''^"^'^-'' munmiiiul uasos, 112notor«^ E;fp;;;5i!;r^'K;.;;......no « person 18 a slmivhoMer 15 ■/ ,7^4 „ . , 'X'l'tificntcs of title, 64 olliciul returns, 45 note (a), 57 et „„ registers generally, 57 <,■ L ^^ rough slinre-lmol/ 59 '■ m a cost-book mining eoapanv 06 8&9Vict. c. 18...103, 292 note (w) ^ '^'°''^' •^«^'k'nfr to recover a call paid by hi.n to correct register, 61 EXCLUSION and executory contracts of corporations, 221 EXECUTIONS, 276 .<.«,. '^^'"^^rpo^SWr ""^^'^ - *"" j'-l^-nt, 278 S"s!re,^Ld:ir2^r«'-'''-'^-.s39 protected property, 278 public omcers under 7 Geo. 4,0. 46.. 278. 285 rolling-stock of railway ro"npa*e; S" '^ ^'-'''^ Bhareholders in eompaliies gJ,ven,::d'by 7 Geo. 4, c. 46... 285 tlio Letters patent act, 289 «& 9 Vict. c. 16. ..290 other companies, 293 charging shares, 460 discovery of shareholders on. 282 1184 GENERAIi INDEX. 'Wmi EXECUTIONS— co?!arate creditors and legatees of deceased, 540 et seq. sci. fa. did not lie against, 295 when they allow shares to be transferred into their own name, .138 rights of, to indemnity against calls, 536 to petition to wind up company, 637, 628 transfe?- of shares by, 537, 538 transmission of shares to, 468, 537, 538 See Death EXISTING COMPANIES, registration of, under act of 1862. See Registration EXPENSES of forming company under 8 & 9 Vict. c. 16... 400 liability of company for, 606 promoters for, 605, 606 subscribers for, 30 See also Contribution EXPULSION from clubs, 303 note (e), 528 note (a) from corporations, 528 note («) from trade associations, 528 note (a) See FoiiFEiTURE EXTENSION OF BUSINESS, 199 EXTRAORDINARY MEETING, 307. See Meetino EXTRAORDINARY RESOLUTION, 877 FACTORS ACTS do not apply to shares, 476 FALSE PRETENCES, indictment for obtaining money under, 87 note (6) FALSE STATEMENTS, actions for dnmages for, 73 for rest'issinu of contract for, 71, 589 ei seq. by directors, liability of company for, 211 ct seq. effect of, on contrilnitories, 79 ct seq. ensnaring public by, 131, 132 See also Fraud ; Misrei'Resentation FEES of directors cannot be paid until debts are satisfied, 389 GKNEKAL INDEX. FELONS, 38 FEME COVERT «„« ai , ^"vr-ni. f>ee JlAKUIED \V0MEN FICTITIOUS NAME, shareholder assuming, 59 FIDUCIARY RELATION ot rronioters to company, 347 et s% FIRE INSURANCE COMPAW <^„ r majority cannot chanc to nnrh,; i n?"""'''"' Covpantes FLOATING SECURITY ^ '""^"""'"^"—-"1^.321 St;:r^!:;f^;r:a;s^^«-"oto(.) FOREIGN COMPANY, 909 c^,,,. contracts of, 9iG " conventions as to, 914 dissolution of, 623 forfeiture uf shares in, 528 note (n\ how wound up, 692 912 ' liability of members of, 913 ' may be registered, 116 unim incorporated, II5 public officers of, 910 i-esideiico of, 910 security for costs required from 26^? service of writ on, 264 note A" ' 9] f transfer of shares in, 481 ^^^'^^^ when Court will i,.fuse to wind up, 622 FOREIGN GOVERNMENT may register company to carry on business abroad, 116 FORFEITURE OF SHARES r,.. , „. ' action for, 63 *"^^^^' "^^^ '^ «''?■. 842 ct s,:q. hy directors improperly ai.jiointed 300 cancellation of forfeited shires, 530 cSro^'^^rSr"'""^"'^ if shareholder .ued company, illegal, 5^3 lor non-iiayine'it of calls. 425 552 m cost-book miiiiujr companies, 326 5oq ■u companies governed b} 8 & 9 14 "'is. , 333 529 "1 the case of illerrallv siibrbvI'l^'i'T '''°'' 1862... 530 i^iuuction to rK? 3 '^^''' ^J^''^' «^^ -'e 0.) of bankrupt shareholder.s, .552^ ^^ light to forfeit shares, 322, 528 shardS ' mll^'Ja 'Zil^lr''^'^ ^TI'^"^^ ^-''. ^29 note m ^ where forfeiture iSk' 8 ^ "otwithstanding, 842 et se^ ^ ^ statutes authorising 629" surrender if «/^m ;■,>« not valid OS 845 enable shareholder to retire, 532 wiiat amounts to, 533 H85 L.C. 4 G 1186 GENEKAL INDEX. FOKGKl) iiisti'Uincnt, what is, 198 transfers, 483 rt srq. FOKGERY no bar to civil proceeding for damngcs occasioned I)}', 483 note (v) of scrip, 65 note (/<) VOim OF CONTRACT, effect of, on liability of companies, 220 H scq. FOHMALITIKS. See also Iuukoulauitiks inii)i'rativo and directory clauses, 172 rf, scq. to be oljserved before becoming a shareliulder complied with by the company, 46 elfect of not observing, as between company and alleged shareholder, 49 as between creditor and alleged shareholder, 54, 289 as regards contributorics, 758 necessity of observing, -14 rt scq. waiver of observance of, 47, 49 writing, when agreement to take shares must be in, 761 to be observed by directors and companies in exercising powers, elfect of not oliscrving, 166 H scq., 316 presumption in favour of regularity, 168 FORMATION OF COMl'ANIKS, 11 ct scq. See Content.s, Bk. I., Cap. I. agreements Ibr, specific performance of, 585 of chartered companies, 97 of companies governed Ijy L(dters patent act, 99 liy special act of Parliament, 102 expenses of formation liability of companies for, 146, 147 subscribers to abortive company, 30 payment out of deposits, 32 recovery of, 146 when comideted, 18. FORMER iMKMI5KRS. See Past Members in winding up, 816 cl scq. Retiued Suakeholdeh:. FRANCE, convention with, 914 FRAUD. Sec Misurpue.sentatiox general rules as to fraudulent statements, 68 ct scq., 590 must be made to induce person to act on it, 70, 90 be of fact, 68 intention may bi! a fact, 69 be nntrue, 69 have been acted upon, 71, 77 et scq., 84 ambiguous statements, 71 concealment of material facts, 70, 90 where fraudulent, 90 exaggerated ojiinions, &c., 69 intention, 69 o[ip(irtiniity of ascertaining truth by person deceived not material, statements true wlien made but subsequently untrue, 21, 69 authority of agents in matters of, 211 l)y company no defence on sci. fa., 283 l>y jjcrson not a party to the contract, 84 by promoters, ;552 ct scq. contributorics in cases of, 776 dispositions of company's property in fraud of creditors, 273 OENKRAr, INDEX. 1187 y, 483 note (v) 74, 217 der, 49 er, 54, 289 l)c in, 761 lising powers, JNTS, Bk. I,, Cap. I. it, 102 30 D SUAUEHOLDKIi:. ■I/., 590 70, 90 FRAVD—coiitiiiurd. civil remedies for J-ecoveryofdamages, 73, 210, 21<. Irom company, 74, 216 cf sea , "'tl^tf ;^ "^'' ""• ''■'''' -^»-"g -o„.berslup, lapseoftimo.eflbetof, on.ff °^'®^ measure of damajfes, ,.„,. • • """tract to take sliaves >)() lotKl? ^"'^'"^ «'-- - «"th of others being share fraud im,.utal,le to tl,o company, 79-81 fraud not imputal.ln to tL „ Bei'itdiation 91, 92 ''"""'«nt under Companies act, 1867, s. 38 ^^encomSSi^ !;!?¥—'» "P. 589,753, 776 ^'"'|"fjKS^t?!S^-- others '^oSlidS'' S^^'"'" ^'''^ P'- of ^"ares, 488 |"te^:;S;l9r'5?r'^''°''^^'- iJSiSI^-^^^^SenSr^is- ' --'- sanctioned .ra'naS.;^,?;' 7^"'^ *o, 34 -I.en aground ^Sk^l^!'^^"' "'''''''' ''' FKAUDS, STATUTE OP and Comjianies act, 1862 oqo ami Companies clauses act "227 ■?9nki)ig company under 7 Geo IV r ia ^e^a transmission of shares to igo ' '^'''- ^^ • C- 46...109 voting, 310, 311 ' when a contributory, 807 ILLEGAL COMPANIES, ' what companins are, 130 et sen. ; Bk I c f-, 8 i b=S6!!5^'l ' -••''-^^"■^ ^35; lb! Lte (/, chemists, 138 druggists, 138 licensed trades, 138 iion-registrntion, by reason of, 136 scrip companies, at common law, 133 since C'omi)anies aet, 1862 T\n consequences of illegality, 139— 142' actions by and against, 140 h'^I actions for account, 139 ndmiuistration of trusts, 141 contract to form is illegal, 139 aSn^iir'^^'"^^'*— tion.141 proof 111 bankruptcy for debt due to, 141 recovery of subsciii)tions, 139 recovery of debts, 141 . sales of shares in, 140, 487, 516 winding up of, 141,621 ILLEGAL ISSUE OF SHARES, when holders are liable for' 52, 774 ILLEGAL SALE OF SHARES, 140, 487, 516 IMPERATIVE AND DIRECTORY CLAUSES, 172-irr« IJI PLIED CONTRACT to carry on business, 249 IMPLIED POWERS. Bk. IL c 3 s 1 oI'SllX ^"'""''' °^ '"'"^""^■' ^^' '' '"i- generally, 155, 161 ct sen. as regards actions, 265 admissions, 183 anialgamatiun, 183, 891 arbitration, 184 bills and notes. 185 6'/*'o bills in Parliament, 186 bonds, 186 borrowing money, 187 clie(|ues, 196 compromise, 196 debentures, 196 deeds, 198 extension of business, 199 fiTatuities, 318 insurances, 201 investments, 201 .judicial proceedings, 201 leases, 201 loans, 201 mortgages, 202 1189 :?" m 1190 GKNEHAIi NDKX. hi'' If '>,'e Companies ; Coui'okatujx INCORPORATION. See Index No. I. by registration, 111 ju'oof of, 112 in criminal cases, 112 note (*() effect of, on sureties, 127 note (]t). 146 note {n) INCREASE OF CAPITAL. See Capital generally, 397 difVerence between and borrowing, 191, 192 of cost-book mining companies, 398 under Companies clauses consolidation act, 399 imder Companies acts, 401 INDEP.TED, meaning of the Avord, 458 note {p) INDEMNITY, generally, 379 ct scq. agreement with shareholders for, no answer to action against company Shaw's claim, 10 Ch. 177 amalgamation of (lomjianics on, 201 contracts for, euforocmcnt of, 588 broker's right to, 512 not for their own default, 514 directors' right to, generally, 378 ef scq. when right is restricted, 386 under Companies clauses act, 330 when dividends have been improperly paid, 432 note (/) public officer's right to, 379 shareholders' right to, against judgments, 379 from directors, 385, 386 for having paid company's debt, 412 note (-.r) specific legatee's right to, out of assets of deceased, 544 trustee of company, right to, in winding up, 727, 805 trustees' right to, against being made a contributory, 539, 805 transferor of shares to a bankrupt transferee may prove in respect of his right to, 554 l)ersons entitled to, may prove against company, 728 right to, in winding up, 727, 728 pnny's funds, 179 limited to its funds, "250 236 ion aj,'ainst company OENERAL INDEX. INDEMNITY-™,,^/,,,,,,,. lights to, on sale of shaivs, 493 tn °^'ff "'p' sl""-«l'olJers against liabilities 201 to shaveliolders against loss, 201 ' when company bound by, 200, 201 oec also CoNxniDi'Tiojj INDICTMENT, for ^^onsDiracy to obtain settling day, 8" fraudulent accounts, 440 *' •^' °' fraudulently jmying dividends ,mt of ,,,pita] 433 inducnig pei'sons to tak.. shares', 448 ^ issuing too many !sSs"39f ""'*'"' ^"'^'^ "'•'^'™^'«-^' ''' "^t^ ('') INDUSTKIAL AND PROVIDENT SOCIETIES generally, 915 ,< «c,7. '^v^'-iftllJih, can be wound up voluntarily, 614 note M court havmg jurisdiction to wind , , «ii? lormerly sued and were sued by puine^iiliee, 266 note (.) INFANTS, companies' right to object to, 811 liability ot jobber who passes name of, 503 _ purchaser who passes name of lOQ repudiation of shares by, 39 810 shareholders, 39 ' liability of, to calls, 422 , • , „ *o he eontributories. 809 S£t°o!r°'-'^"^^"'" of associatirby, 39 transferors to when contributories, 811, 828 vote by guardian under C'on.panies'clauses^.ct 332 INJUNCTION, generally, 596 et seq. against companies and directors, 596 et sen instance.'? when granted, 596—599 Unrf 1 refused, 599-602 tbr JS^^S^:^"^^^ - '- ''-a^os, 264 to restrain actions against companies being wound up 669 ./ „„ executions against one^s^iareholder at the suit of another, holding improper TeSSrVof"" """"^ "P' ^^« " -^'• illegal acts, 596 ct scq. improper application of company's funds, 321 d srn -„)<) application to Parliament, 323 ^ ^" forfeiture o/shS^gsf '"'"'"'"'' ''*' "°^^' <'^ keeping plaintiff's name on register of shareholders, 61, majority, 5/9 minority, 581 making or enforcing a call, 577, 599 600 payment of dividend in shares 597 presentation of winding-un petition m-7 «„* / » proceedings for a libel Spoi! ?he IlX ctms, S ^"^ 1191 i60 1192 GENKllAI, INDEX. I N.I Uif CTIQ-S— emit iiiual. generally — cont imuih to restrain purclinso by company of its own slmros, 500 obtaining a charter, 98 note (/) registering one company in same name as another, 112 note (o), 113 submitting improper resolutions to n meeting, 'M)i, fiOO surrendering a charter, 323 IX80LVENCV, testis of, in winding U]), 631 IX.SPECTION, of accounts, 439 rt seq. under Companies clauses act, 441 Companies act, 1862.. .442 Life insurance companies act, 445 Stannaries act, 445 by Board of Trade, 444 of books in hands of liquidator, 704 of company's books, 313, 314, 595 of register of shareholders, 103, 125 by creditors, 282 of registered documents, 126 light to, includes right to copy, 31 4 shareholders, rights of, under Companies clauses act, 333 Companies act, 1862... 343 Stannaries acts, 325 mandamus to permit, 440 in winding up, 658, 692 See Books ; and Lndk.x No. I. INSPHCTOKS.- See Index No. I. examination of company's affairs by, 335 INSTALMENTS, calls payable by, 4Ui INSFHANCK COMPANIES, amalgamation of. See A.m.vi.oamation effect of on creditors, 258 on policy holders, 259 distribution of funds where liability is limited to them, 733, 73<) Life. See Life A.s.suitAXCE Companiks majority cannot change nature of, 321 mutual. Sec Mutual Insukance Co.MrANiK.s petition to be wound up presented by, before registration, 127 note (/) policies of, binding on, iliough issued irregularly, 169 power to transfer assets although policies payable out of them, 240 provisional liquidator, when appointed, 659 registration of, 114 shares in, not within iMortniain acts, 452 unregistered, may be wound up under Companies act, 1862, when, 617 note (/i) valuation of policies and annuities in winding up, 732 INSURANCES, when binding on company, 201 INTENTION, untrue statement of, 60 INTEREST, on calls paid in advance, 321 note (.v), 870 not paid at proper time, 414, 531 note (p)' 534 note (c), 847 on debts in winding up, 724 on share warrants not payable out of capital, 321 rate of, charged against directors, 375 GENERAI, INDEX. leiii, 733, 73(! , 534 note (c), 847 lOTERNAL ArANAGEMENT interference of court with, 304 INTERPLEADER in cases of forged transfer, 483 note (,r) IXTEHROGATORIES in sliares, 450 IRELAND, IRREGULAKITIES, efloct ot non-observance of forniHliti..^ <£■?./ lability of conipanj-^^'' 55 ," .^ y6i'°r''"' ''''^'' ^''^ " -J- lu appointment of ^lirector;: lee'iertoo "'^• in making calls, 409, 412 415 ' ' ^^^ waiver of, 47, 49 as between company an.l shareholder 4<. as between creditor and shareholdei '4 as regards contributories, 758 See, also, Fokmalities ISSUE OF SHARES, illegal, etfect of, 52 criminal liability for, 394 wliat amounts to, 783 ITALY, convention with, as to companies, 914 ■">nBER,500. SeeBKOK.H,andSAU.:o.SHAUK,s ■'OINT OWxNERS OF SHAKES survivorship between, 538* survivor contributory, 812 "'"''hfsSJJff^'^?.^^- S-CoM,.Axnos bistoiy of law relating to, 2 et seq. JUDGE, • 'XT^i:^^ - ^° ^^•^'^" >- adjudicates. ,. ^,,,,,, , JUDGMENT, against companies, execution of, against com],any, 276 See Fv„.„., against shareholdei- 2S0 rt vL ^•^"^^^'">'' ™"^s^rSiS:s2r""-^^--^-^^^ 1193 1194 OENEnAT, INDEX. in iK^tioM for rail, not set iisitlc for irregularity of call, 415 of comity court u},'aiusl iMJinpaiiy, execution of, vJSO sliarolioldur's riglit to indemnity against, 37!) winding-uji order i.s a, (ItlJi modi! of (niforcinj,', 007. See Oiuiku JUDICATURE ACTS, clfect of, on actions tictwcon comimiiiu.s and their members, 271, "iHl, ."C2 section 10, circet of, 078, 719 <-t se,/. JUIilSDICTION of court under act of 1802. See AViNDiNd vp, and Indkx No. I. of judge in cliamhers in winding iiji, 086 of Staunaries. See Stan NAiuE>i ; Cost IJook Mining Com I'Anii'.s c)vor foreign companies, 911 t'l, scq. dissolved coni]ianic8, 885 service of notices in winding up out of, 685 note {i), 687 "JUST AND KQUITAHLE" to wind up I'onipany, when, 631 LACHES, when a bar to relief, 582 et srq. in barring riglit to an account, 583 in making claim in winding up, 723 in not applying to be removetl from list of contributories, 748 in rejnidiating sh.ares, 79 d seq., 772 in setting aside agreements, 582. 584 LANCASTER, winding u)) companies by Palatine Court of, 616 LAXD, shares not an interest in, 451— 453 LANDS CLAUSES CONSOLIDATION ACT. See Comianiks cjovi.iined nv 8 & 9 Vict. c. 16 appointment of arbitrator under, 228 LAND COMPANIES, wliere shares of, within the Mortmain acts, 452 LANDLORD, right of, to distrain in winding up, 678 to future rent, 731, 886 note {z) LAPSE OF TIME. See Delay, Time, Laciiks LEASES, to and by companies, 201, 202 si)ccilic performance decreed against directors, 243 note (a) LEAVE OF COURT in matters connected with winding up, 708, 712 LEDGER, when a sufficient register, 59 ' LEGACY, of shares, 540 '^< sfij', absolute legacies, 542 ademption of, 541 apportionment of interest and dividends, 546 income of, before sale, as between tenant for life and remainduriaau, 543 legacies for life, 542, 545 legatee may decline to accept, 541 /. wbeninvg,,larlyai,i,oiutcd, 100 "'jPn^Ue-dar oases, 18:i .,,,,,. ^4c iMrrnc, ''''''''-'•{'•«■. ""'f irregular, lijfi n/(ra vircn, \:,2 \ij-> inoinbor.s, 154 rromoter.s, 146 ,1 s<;,. m'ts .// ""Ol, 11.-! for goods supplied, 205 ^ for iicgligeiipe of servants, 208 tor representations, 206 for torts and frauds, 74, 208 ct sea. on anialganiation, 259, 734 on bills of exchange, 230 H sen on contracts of wbieh company has had the benefit o.- , not under seil, 220 at sea S\;c Sfa, - ^r ''""^• '•->'1<''- particular statute^ 226 ./sL' ' ^"•^""■^^'^ ^^'"'" J"'l«nieiit was obtained on -"Ji on promissory notes, 230 c( scq ' "'^ to indemnify directors, 378 et seq. See CoxTUACT ; Companiks ^ZS^:^t rig T""''^ '^? ''r^- «- ConP,H:A.,ovs for acc'ounts, fSulSt:';:^ "''^ '''^" '^'«^'=™"«' I-^"'-^^' l'--'.:.'.. acts of each other, 88, 244. 374 371; acts done iomJ;?i., 3*73, n'oio J;-; ' 11% (iUNKKAI, INDKX. m M LIABILITY— r.(/i//,i«-[ilii'(l, .'tri il *'). iici|iii»NC(Mio(i ol' ('(irii|iiiiiy, cD'ccl of, U77, 378 IxiiiUNi'H ami uniiiiiiisuiunH, 'Ml lirt'iich of tniHt, .'l?! Inlying Hliiifc'i in tlicir own ('oiii]mny willi uotnpnny'H funds, C20 ('(ini|ironiising cliiiniN. noni^ it' IhhhI /iili\ :i7't contriiiution and indi'tnnity, 'MH, :{7i> el .•«•(/. coNts, in action for infringcnutnt of pattMit, 240, 2tiU uiTors of.iml>{uiunt none, ;)73 t'Xi'oss of authority, 241 rl mf. acci'jitin}; liillH, 242 borr(nvin({ money, 242 holiest iiiJHtiike.s as to iiiitiiority, 242 issuing dolit'iitun"!, 212 warranty of rtutlioiitv, 241, 24.') fraud, 88— !t2, 2;tlt. See alsu" l''i!.vrip of co-diirclois, 88 under ij !!8 of Coniiuiniex act, 1807. ..IM, i)2 f,'iliiiiiiitei's, 20(1 iiideninitics, 2()ii niisluiiNanci! under ji Itifi of f'oiii|>aiiios aet, 1802. ..694 ncgligeiico and wilful dufaull, :t72 liy relying on others, 374 not barred by Statute of Liiiiitatioii.s, 374 death, 374 bankmiitdy. 374 not stoiniing unsucce.s.sful eniniiiiny, 373 , omitting word limited, 231, 240, 253 overdrawing banking account, VMS, 242, 243 imying dividends out of capital, 432 lUdlils iiniuoiierly obtnincil from coiu|iaiiy, 3(54 el seq. lirouiotion money iiiii)roiH'rly paid, 372, 374 (lualilication shares obtained from pr )iiioters, 3(57 to be eontributories in respect of, 790 H aeq sales to company, 309 torts, 23!) i:t seq. criminal, carrying on illegal business, 141 conspiring to obtain settling day, 87 fraudulent accounts, 440 issuing false reports, &c., 87 paying dividends out of capital, 433 of corporations to attachment, 279 on bills of exchange, 231, 242 on contracts, 240 when eontractiug as principals, 243 on proini.ssory notes, 231 may be unlimited though compony is limited, 116, 253 rate of interest, charged ngoiiist, 375 executors for fraud of deceased, 88 for not selling shares, 547 to colls, 530 to be made eontributories, 537, 812 cl xrq. to creditors of coinjiany, 539 to creditors and legatees of deceased shareholder, 540 when they allow shares to be transferred to their own name, 538 of managing committee, 145 to be eontributories, 766 of promoters. See Piiomoteks for acts of each other, 143 <■< Sfq. for contracts entered into on behalf of an unformed company, 24S- for profits made from company, 345 et scq. LII OENimAT, INDEX. 1197 iiy'H fiimU, C20 .Soo CtlNTUIBUTOUIES 2(iri J...091 ■I d SCq. eq LIABILITY— .od^i-iH../. of prOlllotcTH Cllll/ill Ui'll, to c<>iii|miiy, how iiU'ccti'tl hy )iaiikni)itcy, M9 of provisional coiiiiiiittco, 14S of jiurscr of ((ist-liook iniiics for fiiliio nccoiiiits, 447 of HlmnOioItliilN, 214 el sn/. nftor .siirrenilcr of slum's, 517 '■' .w/., 837 H wj, wiiidiiiK up, 7M to be iiiailii loiitriliiitorirs, 700 i ' vcy, to calls, 4 lit, 863. Sun C.VI.r.s to creilitorH .(luiatiou of, 254 <■/ sir/. oi'lUinfllcriiiciit of, 251 turiiiinatiou of, 255 ill ainnlirninatioii, 253 oxtiiit of, 244 i/ in/, utluniptH to limit lialiility, 245 H sfif. l)y a H|io(ial coiitiarl, 245 to fumls of tlu! coiiipiiiiy, '24ii d nfj., 284, 854 witliniit a special coiitrait, 24S liinitud by statulr, 251 li siq. ill conijiaiiios jjuvui'ikmI by 7 (i(^o. 4, 0. 4(5... 252 ■; Win. 4 k. 1 Vict. c. 73... 252, 289 HkS) Vict. !■. 16... 252, 290 by Coinpanics act, lSti2...2ri;! of l)ast liiotnbcis ol', 25li, 257, 81 (5 el srq. ill companies ciiijiowcicil to shd and bo sued, 252 ill cost-book iiiiiics, !)4, See Cost-15uok Minino Ciimi'\nii;s in foicif;ii coiiipanicM, 013 on iiiiialf?anialion, 8tt7 to contribute not to be confounded with liability to creditors, 257 to refund liioncy iiiipi-o|(erly divided ainon^jst tliuin, 389, 390 transfer of .shares to avoid, 4tJ5, 825 ct nrq. where coiiUMiny is not iiicorparatcg without, 712 SLCuiity to be given, 702 ^oStS^Sr"*"'"^""''^'^^-'-^- ~^?i:r^uS:'7^^>'^-ni LIS PENDENS, petition to wind up not, 666 LIST OF CONTRIBUTORIES 74--; form of, 746 in voluntary winding uii, 884 persons secondarily liable, 816 , resettling, 747 , u^u ^ settling, 745 SeeCox,-K,nuToa,ns. See, also, in Lxdkx No I LIST OF SHAREHOLDERS. See RKarsr.n LLOYD'S IJONDS ii tm'''' "''"'' °f ^W'"^«tion of money raised by, 207 power of company to raise money by 198 LOANS by companies to directors, 328, 368 py directors to company, 193 'js? ooo by friendly societies, 20l ' ^' ^^^ by liquidator.^ not allowed, 704 note (t) See Advances .'"»iiote(;; LOAN CAPITAL, 391 LOAN NOTES improperly issued, 188 note (/[•) LOSS OF CAPITAL reduction of cipital on, 403 And see Capital ; Indkx No. I. 119S ' scq. P p V""! t ,< /< . ^ K^ P^ P ^" '' 1 kS V K *' J ft- yni'') : \ t m jm" IBF C **'k tsM MM 1200 GENERAL INDEX. .® IS LUNATICS, 40 committee of, may vote under Companies clauses act, 332 transfer of shares held by, by order of court, 469 when a contributory, 811 MAJORITY, at meetings, 318 resolution of, is resolution of meeting, 308 of contributories, wishes of, as to winding up, 641 of creditors, wishes of, as to winding up, 636 of directors, 156, 158 of sliareholders, control of, by court, 572, 574 ct seq. control of minority by court at instance of, 581 powers of, 314 et scq. amalgamation, as regards, 323 in winding up, 893 application of company's funds, 321 et scq. application for power to alter nature of company, 323 borrowing money, 190, 192, 317 directors, appointment of, 298, 299 varying number of, 299 dividends, as regards payment of, 429, 430 forfeiture of shares, 528. Sec Foufeituhf, fraudulent transactions, ratification of, by, 581 in incorporated companies, 314 ill unincorporated companies, 315 in matters arising in ordinary course of a company's business, 316 cl scq. involving a change of the company's business, 319 ct so],, 322, 323 leases authorised by, 202 preference shares. Sec Preference Shares alteration of rights of holders of, 435 issue of, 396 share of profits, no power to exclude shareholder from, 433 surrender of shares, 517 transfer of business, 322 MALICE, whether imputable to company, 210 MALICIOUS INJURY, liability of company for, 210 MALICIOUS PETITION to wind up a company, 614 MANAGEMENT of companies generally, 298 et scq. vested in directors, 298 et scq. of shareholders in meeting, 303 et seq, intoriorcnce of court with, 304 cost -book mining companies, 325 — 327 governed by 8 .t 9 Vict. c. 163. ..27 cl seq. directors, 327 et scq. shareholdors, 330 et seq, governed by the Comp.tnies act. 1862... 333 ct scq, din^ctors, 336 ct scq. See DiiiECTOiw shareholders, 339 et seij. when court will not interfere with, 578 will interfere with, 579, 581 See, also, CoMi'ANiEs ; niuKCTOus; Injunction; MAJonirv; Meetings ; Shaueiioldeks Sg*! |li GKNEKAL INDEX. 1201 older from, 433 UNCTION ; MaJOIU I'Y MANAOKl; . co?trSuWrh"r^""^^^ tonn.ict w itl), when binding on company, 160 TiPtifinn i,„ 4. ■ , ^'•' '"'*'*<' «ontiibutoiies, 766 petition by, to wind „p company under the Winding-up acts, 62" ilANAGING piRECTOK. Sec Dirkctor dismissal of, Bosto. Deep Sea FisMncj Co. v. A.^dl, 39 Ch. D. 339 MANDAAIUS generally in regard to companies, 603-606 ' to aiipoint a public officer, 604 to correct register, 61, 108 to elect directors and other officers, 604 to make a call, 412, 604 to pay creditors out of companies' funds 280 torn a debt for which judgment has been obtained against public officer, to produce register of shareholders, 282 note (!) 604 to permit inspection of accounts, &c., 440 604 to seal a document, 605 ^•. '•'•o, 0U4 to undo, 605 to Registrar of companies, 111 MARINE INSURANCE agivenients for must be in writing, 761 iiold.rs of unstamped policies, whether contributories. 761 JIARKET OVEltT sale of shares in, 476 JIARRIAGE, clfect of on female shareholder, 42 MARRIED WOMAN, may be a shareholder, 41 I'l,'!!!'"'^/'' \?^^-yV shares, may compel registration 42 Ma Wo^*""'^'"^.^" "■'""' •''■' 'J^'^'n^' separate property 4-> JManied woman's property act, 42 '"I'^^'tJ. «- money borrowed, liability for. '236 voting, 310, 311 ' dividends payalde to, 436 when contributories, 807 JIARSHALLING none, of debts or assets in winding uj), 857 MAXIMS, Ciio'ut emptor, 496 E^prcssio eonim quae lacitc imunl >, ihil opemtvr, 246 ^i>n non dehvit scd factum valet, 173, 879 III recommuni potior est conditio prohibcntiK 317 Omnia prammuntur rite esse acta, 168, 313,' 822 note f ;.) (iut sentit commodum sentire d.'bet et onus, 39 ^^' -MKKTINGS, 304r<.?c,7. vSce Indicx No. I. under Companies act, 1862, of directors, 337, 338 of sharelioldeis, 340 e< S(^. adjourned meeting, 341 chnirman of, 341 dissolution of, 341 extraordinary. 340 first general, when to be lield, 335 r.C. . 4 ir MM 1202 GENERAL INDEX. m i MEETI 'SGS—eontiniied. under Companies Act — contimicd. notice convening, 340 poll demanded, 341 resolution at, 340 votes at, 341 under Companies clauses consolidation act, of directors, 329 of shareholders, 331 ct seq, under Stannaries act, 325 generally, absentees from, 311, 389 adjourned, 307, 308 convening of, 305 et seq. general and special, 307, 335 interference of court with, 304 iri'pgularlj' convened may be valid, 174 majorities at, 308, 318. See Majoiuty niinutes of, 312. See Minutes notices of, 157 note («), 158, 305 rt seq. of object of, 300, 877 mode of giving, 307 ordinary and extraordinary, 307, 308 persons to convene, 305 place of, 306 resolutions of majority are, of meeting, 308 .stamp on, 313 validity of, 305, 309 time for, 305 voting at, 309 et seq. See Votes poll, 311 proxy, 309. See Proxy in winding up, to consider compromises, 710 at seq, of creditors and contributories may be called by court, 630, 688 MEMBERS. See IsuE.x No. I. ; Coxtriuutories ; SH.\nEiiOLDER.s classes of in registered companies, 120 (loliiiiiion of. under Companies act, 1862. ..119, 752 " for time being," 28ti list of. See Ri;cii,sTEH of Siiakeiioi.deu.s not agents of the company, 151 of chartered cnm])aiiies, 101 past, when contributories, 816 calls on, 855 position of, after winding up, 753 proof of debts due to, in winding up, 736 lor damages for frauil in winding uii, 754 set off between company and, in winding up, 741 d seq. tj'pe of, 46 who can be, 36 et seq. MEMBERSHIP, evidence of, in proceedings under sci. fa., 288, 292 in equity though not in law, 47 wliat constitutes, 43 el seq. MEMORANDUM OF ASSOCIATION, agiMit may sign, 119 note (h), 797 note (n) allottee of shares should ascertain contents of, 25 alteration of, effect of, on liability of subscriber to be a contributory, 773 how far allowed, 3;i4 note ('' 278 note (g) priouty o ages duo to, under Stannaries act, 718 MINING COMPANY not bound by bills of its directors, 185 ■shares in, lu.t within Mortmain acts, 452 not wit an Statute of Frauds, 452 Sec Co.sT-BooK Mining Company MINING CUSTOMS not judicially noticed, 95 See Cost- Hook Mining Company MINORITY. See Majority actions by, in name of company, 578 bound by majority, wlien, '6Uet scq. control of, by court, 581 fZ'T '" ''!.''^''"lite'l 'Jy. in cases of dispute, 578 ct sen tiauds sanctioned by majority 581 ^' right to be heard, 318 ^ MINUTES of meetings, 312 under Companies act, 1862... 335 342 under Companies clauses act, 329 of calls, 417 SlStSne'KS^'^S '°" '"' "'''''''' '' '^^^-^°-' -"-te^ ^40 irregular, 175 MISAPPLICATION OF .AIONEY, lujiiiK'tions to restrain, 580, '596. See I\iirvrTrnvo Lability of directors for', 371 c-^i. g^^ ^""^^^-^CTiONS -MISCHIEF, illegality of companies on ground of, 131 MISDESCHIPTION of transferee of shares, ellect of on liability of transferor, 827 MISFEASANCE under § 165 of the Companies act, 1862... 694 ct scq. MISJOINDER. See Pautiks TO Actions ofidamtiffs, 569 1203 MISREPRESENTATION See Fuvud general rules as to, 68 rf sen. must be of fact, 68 untrue, 69 made to induce person to act on it. 70 of a materinl fact, 70 have been acted on, 71, 77 (•< M-?. 4 H 2 1204 GENERAL INDEX. M ISKKPRESENTATION— (;oji<»iw«/. general rules as to — continued. ambiguous statements, 71 concealment of niatcriol facts, 70 exaggerated opinions do not amount to, 69 intention may be a fact, 60 opportunity of ascertaining truth not material, 72 sole inducement, need not bo, 71 statements true when made, subsc(iuontIy untrue, 21 , 69 by paying dividends out of capital, 433 of effect of companies deed, 84 recovery of damages on ground of, 73 from coniimny, 74 when winding up, shares taken in reliance on, 74, 754 from person making misrepresentation, 88-90 repudiation of shares, after coninieucement of winding up, 776 rescission of contract induced by, 72, 74 ctscq., 589 cl scg., 776 MISSTATEMENTS. See Miseei'1!F..si:xtatiox ; Fiiaud in prospectus, 68 MONEY, action for money had and received, against a corporation, 220 note (a) effect of having had the benefit of, inipio[ierly borrowed, 188, 235 r.t scij 723 misapplication of company's, 580, 596 power of company to borrow, 187 ct seq. See BoRuowiNG Money MORTGAGE. See also Boruowino Money ; Dehentuues effect of application of money raised by invalid, 235 et .ii'q. of calls made, 192 note (/) determined upon but not made, 192 note (l) of companies' undertaking or general property, priority of in railway companies under 30 & 31 Vict. v.. 127. ..195 other companies, 197 and note (c) of future debts, 192 of shares, effect on director's qualification, 301, 794 by transfers in blank, 473 stamp upon, 469 note (c) of uncalled capital, 192 and note {I) power of companies to, 202 railway and other companies under 8 & 9 Vict. c. 16. ..194 under Building societies acts, 920 l)roof for, in winding up, 726 registers of, under Companies act, 1862... 203 unregistered, not invalid, 175, 203 Stannaries act, 1887. ..203 rights of holders of, in winding up, 726 MORTGAGE DEBENTURE ACT, 204 alteration of memorandum of association to comi>ly with, 204 note (//), 'M2 MORTGAGEE allowed to foreclose against company being wound up, 675 distress by, against company being wound up, 680 note (c) of shares, when a contributory, 856 of company governed by 7 Geo. 4, c. 46, right of, against shareholdeis, 287 MORTMAIN ACT, shares, how far within, 451, 452 debentures and bonds, 451 note {I) fJKNKUAI, INDEX. MUTUAL INSURANCE COMPANIES are associations for gain, 115 <;ontributorics in, 761 l)olicies of marine, must bo in writiii" 761 rights of creditors, &c., in winding up, 737 wliat aie capable of being wound up, 621 MUTUAL LOAN SOCIETIES are associations for gain, 115 distribution of surplus assets in, 871 et sa, rights of withdrawing members, 872 lli();j Vict. c. 16.. .194 y with, 204 note (;/), -^i'i of, against sharehoUU'is, NAME, lictitious eflect of, 59 use of another person's, to avoid liability, 803 NAME OF COMPANY, ihang(! of name, eflect of cliange, 113 power to change, 112, 128 ' limited" to bo added to, when, 113 removal of, from registry when company is defunct, 113 871 restoration of, when improperly removed, 871 ' same name, two companies may not hay.' 112 similar names, 113 NE EXEAT REGNO against contributory, 848 NEGLIGENCE, estoppel by, 486 liability for, in making statements, 88, 89 liability of company for, 209 liability of directors for, 371 of servants, liability of company for, 208, 209 ^^«°"|^ ^^STRUMENTS. See also Biu.s o. Exchanoe ; Puom^souv blank transfers are not, 474 scrip certificates are not, 66 may be so l)y .nistoni, 66, 474 under seal, 230 NEW RIVER SHARES are real estate, 451 note (0 NEWSPAPERS. See Abvertisement contents of winding-up petition must not be published in, before h.arin^, NOMINAL CAPITAL of companies, 394. Sec Caitial NOMINEE of puri'liaser (jf shares, right to object to, 502, T'OS transfer to, 495 waiver of objection to, 504 ot rival company, actions by, 567 of shareholder, when a contributory, 803 et scq. NOTES, issue of, by bankers, 136, 1013 note loan, improperly issued, 188 note (k) promissory 230 et seq. See Bills of Exuuanoe ; Promissoiiy N. . if. unlimited liability of limited banking companies on, 253 855 1206 GENEUAL INDEX. NOTICE by blank transfers, 47*5, 479 casunl conversation, none from, 206 note («) implied from books of company, 178 note iq), 312, 518 note (c) of allotment, 14 of assignment of shares no priority gained bv, 454 of calls, 417 form of, 418 of change iii scheme of company, 19 ct acq. of director's authority, 242 of forfeiture of shores under Table A., 531 of irregularities of directors in exercising powers, 167, 171 of meetings, 157 note (»). 158, 305 ct scq. See Mkktino.s for voluntary winding up, 876 under Comi)anie8 clauses act, 331 of pledge of shares, effect of, upon lien, 459 of regulations, &c,, of company, 158, 165 of re\ocation of offer by post, 14 of winding-up order, 684 purchaser without, of shares purporting to be fully paid u\>, 787 to one of several directors does not bind company, 156, 204 to companies, 204 two companies having several directors in common, 204 NOTICES of proceedings in winding up, service of, 686 NIISANCES, companies regarded as, 3, 130 XULI,A BONA, leturn of, to writ against company, where not sufficient to enable creditor to proceed against shareholder, 291 NUMBER of directors, invalidity of acts of insufficient, 155 r/ scq., 299 See DiRECTons NUMBERS of shares to bo on registers, 58 in companies governed by 8 & 9 Vict. c. 16. ..103 of shares in banking company, to be stated in contracts for sale, 489 OFFICIAL LIQUIDATORS. See Liqvidator.s, and Index No. I. appointment of, 700 compromises with, 709 powers and duties of, 708 cl scq. OFFICIAL iMANAGER under acts of 1848-49... 705, 706 See Liquidators OFFICIAL RETURNS, evidence of membership, 45 note (a), 58 OPPOSITION to bill in Parliament, agreements to withdraw, 153 note {y) OPTION of company to rescind or recover damages from promoter, 367 none if promoter has sold his own property to the company, 358 to take cash or shares does not make a person a contributory, 762 OPTIONAL CLAUSES distinguished from iniperati\e, 172 cl scq. t to enable creditor OENERAI- INDEX. 1207 ORDEll AND DISPOSITION shares i„, do not pus. tu 'trustee of Imnkrupt sharehoKkT. 551 OliDEIt OF DISCHARGE bars all calls, 426, 567 > ORDERS, balance, 847 chargiug, 460r<*.^. Sec CiiAiuuNf, Oiu.fr.s for winfTing up, 661. See Wixi.rN,, vv coiiflictmg, 888 how enforced, 697 ct seq. proceedings under, 684 summary, to pay money in winding up, 693 ORDINARY AND EXTRAORDI.TARV MEETINGS. 307, 877. See M.Kruso. OUTLAy.S AND ADVANCES, allowances for 379 rt «<■« «,.« , i « I.UTIO.V ^- ^'" "''" ^"VAxcE.s; Allowances; Contri- lien for, 456 rt srq. loans by directors for, 387, 388 ■ OVERDRAWN BANKING ACCOUNT, 190, 242 PAID UP capital of companies, 394. SceCvpirvL conversion of, into stock, 405 shaves. See also Shai!Es nri,Lv vud vi> what are, 395, 783 et seq. can be paid up otherwise than in cash when 395 784 ., „,„ companies may agree to pay their debts n 778 "^ If a Isiw . cmtracts for, to be registe.^d under Comjani ? t?1867 3 r^ss 1 Ml r , "on-registration of, by inadvertence 784 ' ' holders of, when contributories, 757, 7S3 787 ' may petition to wind ui., 626' issue of, when a breach of trust, 395 married woman holding, entitled to registration 41 i-'> purchaser of shares purporting to be, yl'; *'''°"' ^'' ^- rights of holders of, to sui-plus in winding up, S69 shares impi-operly issued as, may be reiss^ie. 84'^ subscribed '••■ in memorandum, when to be t re, cM .,s 781 7fl. what IS payment in cash, 784 k sen ' '^^' '^^ sirareTSTs/" *""'' ""^^^'■'' ' ^^'''^^ ^ '•""^•'•'-toiy for unpaid when unpaid, issue.l for paid, register corrected, 1 23 PALATINE COURT OF LANCASTER .lurisdiction in cases of winding up company, 616 PARLIAMENT application to, for extended powers, 186 to alter constitution of comi)anv 323 costs of, 186, 321, 323 contents of private act are facts, 242 injunctions to restrain applications to, 323, 571 598 opposition to bill in, 150 et seq. "^' i, ^^ » standing orders of, 102 note (/^ voting for members of, in respect of shares, 452 PARLIAMENTARY AGENT actions by, for expenses iu forming company, 146, 147 PARLIAMENTARY CONTRACT, 102 efl'ect of undertaking to sign,' 32 |.:'r 1208 fUCNERAT, INDKX. PAItl,[AJIKNTAUY nKPOSIT iipplii'atimi ol, 10'2 iioto (./') wlicn neccHMiiiy, 10'2 I'Alt'nUa TO ACTIONS. Sco Actions hetweon dirci'tors anil ulimi'lioldors, 5rt5 ct acq. any sliniclioldcr may sim to iL'stniiii uii illegiil not, lu'i to rescind cniitraL'ts tiiiiitcd witli fraud, 580 ct w/, to rcstriiin directors, kc, from improper acts, .')(J5 between juiblic officers and slinrelioldcra, 664 by and against incorporated compiuiics, 56'2 il scq., 570 , uninccirporatcd conijmnics, l^ti'i liy some on behalf of themselves and otliers, 5*55 d scq., 572 company to be dofendnnt in, when, 563, 57'2 Iriinie of actions by, 569 identity of interl^st reijuisitc in, 567, 57.'? instances of, 571 misjoinder of plaintilfs in, 500 to control majorities or factions minorities, 572 for an injunction. See In.iunctidn to restrain payment of dividends, 574 calls, 573 for expenses of formiiif^ cnnipany, 146 for recovery of company's funds, 563 for recovery of money jiaiil on frauilulent sales of shares, 593 .subscriptions to abortive company fraudulently obtained, .'p68, 593 for specific jicrfonnance, 539 plaintilf nominee of rival comimny, 567 riffl wlr fht of shareholder to us unpany's 7iamc, 572, 573 lere plaintiff has liought sliiirc on purpo.se to bring an action, 568 PARTNERS promoters not, 18, 21, 102 .shares held by, no survivorship, 539 subs('ribers not, 18, 21 PARTNERSHIPS companies compared with, 1, 7 PART PERFOKMANOE of contracts not umh-r seal, 223 PAST MEMBERS. See l!i;Tii!ia) Siiaukholder calls on, part of general assets, 851 effect of registration of company on, 127 note (q) execution against, 286 liability of, to creditors, 255, 816 H scq., 855 in cost-book companies, 95 on winding-uj) of cost-book mine, 95, 819 to be put on li.st of contributories, 816 to calls in winding u]), 865 to what extent, 816, 820, 865, 866 to costs of winding up, 866 may petition to wind ujt, when, ()24, 750 no marshalling of calls payable by past nieniber, 857 not sureties, 821, 857 persons who.so .shares have been forfeited liable as, 534 note (tl), 845, 857 PATENTS comiianies' power to purchase, 206 infringement of, liability of company for, 209 ilibility of directors for costs of, 240, 265 PAUl'KR, tiansfer to, when valid, 464, 825 1-20!) 667 L't, 572 f9:j )73 iig ail action, :it)8 ^9 857 as, 534 note (rf), 845, 857 f, 240, 265 UKNKRAL INDEX. PAYMENT, liy or to .•oinpaiiirM, dluct of wiii,Iiiij{ iii) on, „„, in shaiVH, cllrct don liability as coiitiihuturv. 7S0 ojition to pay iiK'ash 01- .shaivs, 7tJ2 iiianilanms to coiiuk.I, oo4 iil'call.s liy contributory, 8^8 of (l.l.ts in wimlinK "P. 7U\ ,■/ s.;,. Sw, PuooF ..F Dkhts o clivi.li.ii4.s, 429 ./ «,v. Soo Di vi i.knd.s ot sliaics 111 casli, 78:i ri so/. to iietitioniiif,' cio.litor wliun invalid, 666 667 wlii-n right to, is liniitcl to ],ar(iculur funds, 246 "t v.y/. PENALTIhX See iM.Kv N„, I. staying proui'cilings for, 676 PENSIONS, liower to giant, 318 PEKSONAL ESTATE, shares aro usually, 4."il 'sioii» jmiil for, ;t72 not till' Niniif as undorwritiiij^ (-Imrus, 7ttl, 701* noto (n) I'LKADINOS. Sco Ai TioNs ; I'aiitie.s in Actions fui'callH, 4*27 IMJ'lDflF.S. Siu MoimiAdKM by roini)anicM, 202 of NluirvM liy tiniiNfcrs in lilunk, 473, 478 POLICIES OF INSDUANCK issiu'd hUiit vhr.s, recovery of iirondtiiUH on, 235, 23t) irri'f,'iiliirly, conqmny wlu'n bound by, liiS, 10!' imynblo out of funds of coniiuiny, 21t) ft sei/. proof of. in winding up, 736 in mutual societies, 730, 737 ii'duc'tion of, under Life a.ssurnnce coniimnics net, 1870. ..635 stiunj) on ninrine, 761 valuation of in windin),' up, 732 where coBipany lias power to tninsfev it.s funds, 24P, 2,'')0 .Sec also .Makinu Insuhan( r. '^PiP POLICY HOLDEK, not a creditor, 250 right of to bring an action for damages before ladicy is due, 2tt) to present petition to wind up, 62,'i to prove in winding )ip, 737 rights of, against companies on transfer of business, 260 in cases of amalgamation, 2.")!' cf xcq., 7:i4 where original <'onipany discharged, 260 not discharged, 260 POLL. right to, 311 under Comiianics act, 1862. ..341 POST, notice by, of allotment, 14 revocation of ofler by, when in time, 1 4 POWICRS. Sec Implied Towkrs of attorney to transfer shaves, effect of forgery of, 483 directors, 155. See DiUECToit.s nuijoritio.s, 314 ct acq. See Ma.iouitie.s oflicial liquidators, 708. See Liquidatous PIJACTICE, in winding up generally, 685. See Winding t as to calls in winding up, 847 ct seq. PRKl'EREXC^ SHARES, dividends on, 435 in companies governed by 8 & 9 Vict. c. 16. ..400 Companies act, 1862. ..405 injunction for protection of holders of, 580 to restrain issue of, 597 liability of holders of, to be made contributorics, 83 nature of, 396, 435, 449 rights of holders of, 435 entitled to priority in payment of capital when, 435 note (<) on distribution of surplus assets after winding up, 868 when companies can issue, 322, 334, 396 OENKRAI, INDEX. 1211 riJKI'KKKNf'K SIIAREIIOLDKRS nghts of, 435 , oil reduction of capital, 402 in windin",' up. 868 rJtEI'I'ltl'lNTIAL PAYMENTS in winding up, 716—718 PliELIMINAHV EXPENSES of IbiniinL' conipanica, yo ,f an,. liability of conipnniosloi, 146. Soc Liaiiilhy sub,seiil)«r.s for, 30, :)2 ifltnni of (IppcsitK i)aid for, 32 whi'ro roinpany abortive, 30 PKEAIIU.MS, r.MM,v!'rv ^7 '^"'"''^r'-- "*• "'" V-'l'^^'""-' °f '•""U'nnies. 365 ct v. K'foxcry of, on policies issued ,,/lm riirs, 2nr>, 236 PREHOGATIVE, ofCroun. Sep CiiowN writ of imiiidaiiius, 6(13 if sv,j. PBESENTS, to diivitors, 321, 389 I'RESUMPTIONS as to nieiiilxiship if imni.. is in official return, 11 m favour ol rogulanty, 168, 822 note ( »)< tJiat coiiiract was made in proper form, 226 I'PIOKITY, of charges on shares, 454 of costs in windingup, 86'. ofdebenture holders, 197 i>ilcr ,sr, 197 note (c) of debts in winding up, 716 rl seo., 721 of hen over equitable eliarcres of shares, 459 of mortgages, bonds, or debenture .stock is,sucd under 8 & 9 Vict. c. 10... of winding up petitions, 660 lu c.nses of blank transfers, 476 ,u-attestation of proxy paper, 175 stamp on, 310 voting by, 309, 310 nn act of membership, 49 under Companies clauses act, 332 under Companies act, 1862... 342 PUBLIC bound to take notice of jiowers of directors, 165 nicnioriindum and articles, 771 See Notice PUBLIC COMPANIES, what are, 9, 462 PUBLIC HEALTH ACT, contracts to be under seal, 223 note (s) PUBLIC INSTITUTION, subscription to by company restrained, 322 PUBLIC OFFICERS, mr, ct seq. actions by and agi'inst, 265 ct seq., 561, 564 by iiorson assup.iir.g to be, 268 effect on of bankruptcy of, 268 of change of company's name, 268 of change of, 268 of death of, 268 for calls, 564 for dissolution, 564 for libel, 267 on bills mid notes, 267 plea iliat peison is not, 268 when enii)i)\vered to sue and be sued by colonial Icgislatun-, 101 note ((/), 266 note (l>) more than one, 268 tliey must .sue and be sued, 265 ct seq. who are represented by them, 266, 561, 564 GENERAL INDEX. PUBLIC OFFiCERS-c-o«^o,««?. affidavits by, fon > of, 269 appointment of under? 0",o. 4, c. 46... 269 . 7 Will. 4 & 1 Vict. c. 73 270 execution against, 278, 279 ' ' under 7 Geo. 4, c. 46... 285 7 Will. 4 & 1 Viet. c. 73 289 niandamu.s to compel appointment of; 604 may be interrogated, 270 ' of banking companies, actions by and against, 268 c( scq.. ,564 powers ot, 267 ■' ' returns to be made by, IIQ, 269 01 loioign companies, 910 of industrial and provident societies, 266 note (a) rinf I" V"'"'"P*'=y ^'y' 267, 549 550 ^' proof in bankruptcy by, 555 where none, company may be sued by its name, 268 PURCHASES by companies, 205 iURCHASER. See Sale of business of companies 207 ijpo a „ . . , . of debentures irrejula W is ^ ed ^^V^^'l''^^''^™^ of shares in cmipanies, ' ' ^"^ DEiiENiURES action by, against sellei-, 498 seller against, 498 "^^^^Ses recoverahli' agninst, 498 effect of fraud on, 7Qctsrq., 496 in company being wound up, 488, 836 ''ISS^i^r.;:^:^'' -' '^-''''^^'-y' '^ ^^ -^^ ^n, 823 . ., must indemnify seller, 493, ft05 rf w position of, when transfer is in blank,' 476 H ,™ pur|,ortu,g to be fully pai.l np, 395, 787 ^• questions between, and vendor as tavUrhf +^ i rectification of regi.ster again.st,' m ° '•egistered, 123 rights of, against company, 470 against seller, 506, 507 through broker, bound tr ■idem nify him 512 when a .shareholder, 45 ^ ' ^^ when transfer is complete, 469 when transfer is forged, 483 ct scq. PURSER See Co.st-Book Minixo Co.m.-anie.s actions by and against, 265 iiahiuty ot, lor false accounts, 447 may m, for calls 95 note (,), 265, 270 note (h) 565 of cost-book numng companies, duties of, 94, 325 1215 See legislature, 101 QUALIFIC.VTION, directors acting without, 300 ,. , . .;;ay.not reclllt: ^Z^^^:^:, "^ § ^^^ ^^ 'he act. 1862.. liability tor, m winding iii), 790 ct scq. QUORUJI ofdirector.s,actsdonebyk.s., than, 155-1.58 174 200 'ino what IS, under Companies clauses act s'g ' ' ■^^- under Table A., 338 794 121G (iENKKAL INDEX. {iVOllVSl—cmitinved. 1)1' sharoliolders, wliat is under Coinimnies clauses act, 331 under Table A., 341 QUO -WARRANTO to cancel registrution of coniiiony, 111 note (/) RAILWAYS, abundoinuent of, 901 injunction to restrain niaki))^ part of, 598 making unauthorised, 320, fi98 I.'AILWAV COMPANIES, what are, 278 note (/), 618 note (u), 905 note (l) abiiiidonmcnt of railway by, 901 ct scq. arrangement with creditors, 904 ct scq. deposit, application of parliamentary, 904 execution against, 278, 279 injunctions against, 320, 321, 598 leases by, 202 liability of, for acts of promoters, 146, 147 for u:e and occupation, 227 mortgage of undertaking, nature of, 195 liowcr to borrow on mortgage, 194, 195 registration of, under Companies act, 116 note {jn, 618 rolling stock of, protected from execution, 196, 27S shares in, not within Mortmain acts, 452 not within Statute of Frauds, 452, 453 suri ' us lands, creditors' right to sell, 279 warrunt of abandonment, 630 windir.g up of, 618, 903 R ATKS after winding up, distress for stayed, 681 payment of, 681 priority of, in winding up, 717 RATIFICATION, by companies, of acts of promoters before formation, 176 ef, seq. directors, &c., since formation, 177 ct seq. of contract not under seal, 223 form of, 181 mode of, 180 parol, bj', 228 note {/() of past, not equivalent to authority for future, 179 without alteration of articles, 177 Iiy directors, when a ratification of the company, 177 178 when not, 180 by infant, 39, 40, 810 by majority in cases of fraud, intrrfcroncc of court, 581 by shareholders, of improper charges, 389 hand in cases of, 180 knowledge essential to, 178 (if change of scheme of company, 23 ct seq. READY AND WILLINC, to transfer shares sold, 498 REAL ESTATE,' shares how far, 451 et seq. OliNERAL INDEX. 1217 IJKCEIVER, generally, 602, 603 liquidator when appointed, 675 is in the nature of, 706 note (p) l'l!tn?.'■T^^^'^ °ii *''^*? ^" Y"""^^ "f liq"idator, 706 note (p) of™ »'y l'°lder of bonds, &c.. issued imder 8 & 9 Vict c 16 194 195 of company's undertaking, effect of, 195 io...iyi, las by debenture-holder, 279 note i>y judgment creditor of railway company, 279 RECONSTRUCTION of companies, 900 ' KECTIFICATION OF REGISTER, 61 748 755 8S9 Sli «„. n . SHAKEHOLDEIiS. ^^^^^-n., 01, /4B, /OO, 8d2, 834. See RliUISTKI! OF REDUCTION OF CAPITAL, annual return must state particulars of 126 unHor f7„'p' ^° '"'"'"^ *"" •"'"" "^ ^^^''''^ »t * discount, 403 under the Companies acts, 1862 and 1877... 402 et leg See Index No. I. REGISTER OF SHAREHOLDERS, general remarks on, 57 ei seq. in several volumes, 106 rough share-book is not, 105 share ledger is, 59 action for improper exclusion from, or insertion in, 63 colonial register, 120, 121 ' correction of, 61 in case of cost-book companies, 124, 125 ,lnn,n'!iLT'^'"^,"P- "fco'npany. 748, 755, 818 note (y), 832, 834 damages for exclusion from, 124 effect of sealing, 106 effect of haviiig name in estoppel by, 60 as evidence of membership, 67 et scq. . _ as regards liability to creditors, 60, 256 injunction against continuing names in, 61 mandamus to compel company to correct, 61, 108, 605 produce, 282 note (i), 604 . , ^ , remove seal from, 61 right of company to put person on, 46, 49, 64 to alter, 63 right of married woman to be on, 42 of companies governed by 8 & 9 Vict. c. 16.. .103-109 correcting, 108 does not estop company, 108 eflect of, 104, 108 improper entries in, 107 irregularities in, 105 mistakes in, 106 not conclusive, 106 of companies governed by Companies act, 1862 correction of, 120 et seq. without an order, 123 note (m), 125 damages for exclusion from, 124 effect of being on in winding up. 769 form of, 120 en inspection of, 126, 282 ^"S^SSr*"^'"' °" '^''"^'"S "P company, 125, 748, 766, 818 note {y), of cost-book mines, 86 I..C. 4 r 1218 GENERAL INDEX. REGISTERED COMPANl'S. See Companies governed by the CoMrAxiEs Act, 1S62. cliangu of nnmc of, 112. .^^ce Name of Comtany. formation of, 111 REGISTERS, inspection of, 103, 12.^, 126. See Inspection. of mortgago'-i iinil securities, uiulei- Co.:!i>auics act, 1862... 203 unregistered not invalid, 175, 203, "26 under Stan nnrios act, 1887. ..203 of shares. See Registeu of Shareiiolder.'J. general rules as to, 57 ct scq. if used as evidence must be properly kept, 58 inaccuracies in, what unimportant, 58 omission of numbers of shares from, effect of, ]ti5 rough share-book not, 105 share ledger is, 59 of transfer of shares. See Transfer of Shares. required to be kept under Comj)auies act, 1862... 125, 126 REGISTRAR of joint-stock companies, 111 annual return to, 126 certificate of registration of company. 111, 112 that a person has been returned as a member, 45 note (a) mandamus to, to enforce duties. 111 removal of name of defunct company by, 113, 871 REGISTRATION. See Index No. I. of benefit building societies, 915 of companies generally. 111 et scq, cancellation of, 111 certificate of. 111, 112, 118 effect of, 111 under same names, 112 imder 7 & 8 Vict c. 110. ..128 under 19 & 20 Vict. c. 47... 129 under Comiianies act, 1862. ..Ill et scq. when necessary with reference to number of memberB, 114 when compulsory, 114 impossible, 115 optional, 115, 116 with limited liability, 116 company may be registered although members are foreigners and the business abroad, 116 for purposes of winding u|>, 616 et scq. improper, n cause for winding up the company, 632 non-registiation, coiisei|ueiiees of, 126, 127, 135 of conqianics formed under the act, 117 et seq. of companies not foriiuil under act, 126 ct acq. of existing companies as limited, 128 of memorandum and artiels of association, 117, 118 of contracts under § 25 of the Companies act, 1867 ... 395 note (f), 783 ct seq. of cost-book companies, 97 of rules of, 94 noie ((-■) of existing companies, efieet of, 127 of industrial and provident societies, 915 of judgment against companies, 281 of mortgages by companies, 175, 2();i, 726 of shares, 57 ct scq. See liKci.sricu of Shareholders. provisional registration, elluet of, 128 guaranteed, ellect of, on jobbers' and brokers' liability, 505. See Sai.b OF Shakes. rHE Companies , 505. See Sale GENER.VL IXDEX. REGULATIONS OF COMPANY effect of not complying witli, 1 u a ,rq. ^ piihlic bound to notice, 158 1(55 waiver of compliance with, 47, 54 ct s.'o. See FOIIMALITIES ; iRREGrLARITJE.s: REHEARING orders in winding up, 698 RELATION BACK of order to wind up, 664 ct sey. RELATIVES of coutributories, when liable to be examined, 691 RELINQUISHMENT of shai.s. geiierally, 450, 517 ct .,., 783 ct so,. See SuRR.^u«H o in cost-book mines, 94, 326, 816 note (7) proof m winding up for value of, 736 REMOVAL of directors, 302 under Companies clauses act, 327, 332 under Companies act, 1362. ..337 ot liquidators, "03, 878 of persons from offices, 302 note U) of seal, no mandamu.s to compel, 605 REMUNERATION of directors, directors may not vote them.selves e.xtra, 303, 388 note I f \ for past services not allowed after ^viudi ,„ „, 339 '* ^^> under Companies clauses act 33^ " ' ' ^^ of liquidators, 703 of promoters, 356 RENT, proof for, in winding up, 680 future rent, 731, 880 note (;) staying distress for, in winding up, 678 REPORTS, W chairman to meeting, eliect of, on liability of company, 156 note (,.) laid before meeting, 79 ct scq., 82 ''11— -^5 mminal responsibility of directors and others for, 87 when not imputable to company, 81. S'' -'15 libellous, 209 note {q) ^ ^' ' ' "^^ of directors distinction between, and of .shareholders 214 to shareholders, liability of company for, 211-215 ' REPRESENTATIONS. See M.su.PnESENT.VTinxs ; Fkaui> by chairman ot meeting, 156 note (m) by m.d,tor to shareholder thnt he would incur no responsibility, effect of, by directors, 68 fi( ,sc»^., 214 ,•/ ,S(V/. by members of company, 154, 206 by one of several directors, 156, 206 by solicitor of company, 154 when binding on company, 206 resiie^'ting the credit of persons, 207 REPRESENTATIVES, ■• calls upon, 425 when eontributories, 812. See E.\E( rTOR.s. 1219 4 I 2 1220 UENEUAL INDEX. KKl'UDIATION, by infant, 39, 810 of shares, before winding up, when in tiiiio, 26 when too Intc, 16 note (/), 25 d soq., 28, 73, 85, 589, 772, 777 when taken on faith of fraudulent misstatements, 73 where tliere is no concluded agreement, 768 where scliemo has been clinnged, '2!> cf scq. after winding up, 767 ct seq. on ground of no agreement, 768 fraud, 776 ilhigality of issue, 774 non-performance of condition, 778 of shares not fully paid up, 787 UEPUTED OWNERSHIP, shares not within, 551 doctrines of, do not apply to windir uj) of companies, 669, 706 note (o) RESCISSION OF CONTRACT. SeeFitAun; Misuki'P.f.sentation ; Hkpudia TION. between promoters and company, 352 et seq. wlien the only remedy, 358 offfct of delay upon right to rescind, 582, 584 for failure of consideration, 29 et seq. for fraud of company, 211 et seq. of contracts for the sale of shares, 496, 592 wln-re director sells his own shares as unallotted, 592 of severable contracts, 691, 592 proof of fraud in actions for, 690 to take shares, induced by fraud, 72 r.t seq. , 589 ct seq. for fraud under § 38 of Companies act, 1867, none, 92 in companies being wound up, 589, 767 et seq. companies not being wound up, 590 RESIDENCE of comiianies, 37, 910 RESOLUTION extraordinary, what is, under Companies act, 1862 ..876 for calLs, 415 no stamp on, 313 of company not equivalent to an instrument under seal, 221, 308 of meetings when valid, 305 .special, under Companies act, 1862. ..343 to wind up voluntarily, 876 imanimous, when vllra vires, 314 HE.STRAINING ORDER under 6 Vict. c. 6, § 4... 463, 464 RETAINER under seal when presumed, 221 note (a), 265 RETIRED SHAREHOLDER. Sec Past Mkmber.s. calls on, 422, 423 duration of liability of, to creditors, 256 in cost-book companies, 94, 95, 326, 819 when retirement is informal, 55 duration of liability to contribute to debts, 255 et seo. execution against, 286 right to retire, in co.st-book mines, 524 under the Companies clauses act, 525 act of 1862... 526 .'s i (iENEKAI. INDEX. 1221 RETIRED HHAKElWLmAl-amtuuuU. when liable as a contributory, 816 el scq. although his shares Iiave been forfeited, 533, 534, 842 et sr,,. surrendered, 518 H xei/., 837 el m cost-book companies, 95, 816 note (,.!,, RETIREMENT l>y surrender, 517 et acq., 837 el seq. compared with refusal to accept shares, 520, 841 irregular, effect of, on liability to be made a contributory, 822 et seq. RETURN -^f subscription to company, 29 <;< wfy., 689 RETURNS, OFFICIAL, to beTnadf ''''"*''®''"''''"''' considered as evidence, 45 note (a) after reduction of capital, 405 as to capita], 406 liy bankers, 136 by banking companies governed by 7 Geo. 4, c. 46... 109, 110 26<» ,, , , 7&8 Vict. c. 113.. .i29 ' by companies governed by act of 1862... 126 by mdusti'ial and provident societies, Eli 5 under the Letters patent act, 100, 290 note (a:) under the Life assurance companies act, 1870... 445 REVOCATION after acceptance po.sted, too late, 14 by post when in time, 14 of application for shares, 13, 14, 770 of broker's authority to buy shares, 512 RIVAL COMPANIES, plaintiff a nominee of, when a bar to relief, 567 use of same name by, 113 ROLLING STOCK of railway companies protected from seizure, 196, 278 ROUGH SHARE-BOOK, no evidence of membership, 105 ROYAL SOCIETY, registration of under act of 1862, impossible, 115 SALARY, director's rij.:ht to, for extra work, 388 priority vf. ii winding up, 717 SALE by companies ginerally, 207 effect of winding up on, 667 by directo.'s to company, 369 et seq. by promo ;ers to 'jompany, 357 el tteq. of business of company, 207, 208. See also Amalgamatioh. m winding up, 711, 712, 882, 883, 894 et seq. of shares in companies, 487 et scq. ju banking companies, 489 in cost-book companies, by company, 94 in illegal companies, 140, 487 1222 GENERAL INDEX. ^(•4^ mil SALE — conthwed. of shares in coiM]iniiic's — riiiilinui'd. ngrci'iiuiits for, 4!hi stniuji on, 409 note (<■), 4!iO writing,' when ncit'ssaiy, 480, 400 delivery of, 400 director sellinj,' his own iis nanllotUd commits a fraud, r)92 dividends in onscs of, 400 cfl'cct of, on linliility to ]my calls, 42.^. See Cai.I.s. linliility to lie niiidc ii contrilmtory snlo before connnencinient of wimling uji, 833 sale after comnienccnieiit of winding iqi, 836 gnmliling sales, 488 illegal sales, 140, 487. 51 fi in li(jui(lation not illegal, 494 stamp on, 469 note (c), 49i» trustees in liankrnptcy, hy, ()^>2 not on Stock Exchange, 491 — fiOO action by imrchaser, 498 action by vendor, 498 auction, bv, 407 blank transfers, 478, 408 damages for breach of contract, 408 dilTeicnce between shares bought and sold, effect of, 404 fraud by seller, 406 on seller, 497 fraudulent, 496, 503 lien of vendor for unjiaid purchase-money, 496 obligations of purcha.ser, 492 rt spq. to ]ireparo transfer, 495 of vendor, 401 procure transfer, 401 title to be shown by, 492 whether to transfer to purchaser's nominee, 495 relief where directors will not sanction transfer, 500 resc' sion of, f)02 cl seq. , , riglu to indemnity, 490 specilic ]icrforniancc (jf contract, 499 on Stock Exchange, 500 cl scq. broker or joViber, liability of jmrchasing, 503 H scq., 512 departing from his authority, 612 not objecting to infant, 50;J not objecting to person 4)(i\;'i')'/s, 504 where transferee does not get registered, 504 where registr.ntion is guaranteed, 505 liability of selling, 511 ct Siq. right to charges, 516 indenniity, 512 not if, in default, 513 customs and rules of Stock Exchange regulate, 500 ct .icq. diti'ercnce between, and usage of brokers, 515 duty to pro(nire transfer, 506 illegal purchases and sales by broker, 516 liability of beneficial owner to vendor, 509 nature of contract between vendor and )nirchasing broker or jobber, 503 ct seq., 510 vendor and his own broker, 511 vendor and ultimate ]>urchascr, 505 et seq. priority between when it arises, 506 vendor and undisclosed and intermediate purchaser, 508 ct seq. revocation of broker's unthnrity, 512 time for completion, 507 See also Bkokek ; CoNTBiBUTORiES ; PURCHASER ; Trans- fer OF Shares. I 1 GENEUAL INDEX. 1228 SALT AND ALKALI COMTANV not bouml by hills, .u,, ofits Uiroctor., ISfi SALVA(iE COMPANY Ji-t bouinl by bills, &,„ of it. diifctors, 185 SAVINGS BANK, r'iority of, in ro.si„Tt of .nonoy ,lue from it. omcor., 721 SCALK FEE, • solicitor doninucling ii.on. than in winding np. 704 note (;,) SCHKME Sni!!': FACIAS, iiftiT elegit, 296 ngninst .slmicliobliTs, when necessary, 281 ct sco ■ iiganist sharehoklers in companies governed by 7 Geo. 4, c. 46, 285, '294 5 1 «V ? ^ y*'*' •=• ^3, 289, 294 7 & 8 ^ let. c. 110, 294 7 .^ 8 Vict. c. 113, 294 8 cS: 9 Vict. c. 16, 29() r.t sen. Companies aet, 1862, 294 in otlier companies, 29.3 aStlSrSj: ll^i^' -' -'""1-1 -'■' '^'■"".Htie, 54. 2.9 by creditor whose right is limited to company's funds 284 28-5 concurrent against s.'Veral shareholders, 295 ' ' Ji'aud by creditor a defence to, 284 directors no defence to, 2j3 irregular, 295 nature of, 281, 294 note on procedure by, 294 ct seq proceedings substituted for, 281 to repeal charter, 98, 99 "5n^'=.oE 29o"^' *" *"^ '^"'"l-'^ l'^^- >--'g e^eution SCOTCH COMl'ANY W\\X\ tv ffiuJ un, 615. not subject to old winding-up acts, 6-^3 And see CoMPAKiivs ACT, 1886... 1037 ''tstfj. SCRIP, nature of, 65 calling in of, 66 calls on allottees of, 409 certificate, 65, 06 what is, 65 stamp on, 65 may become transferable by delivery by usao'e 60 474 to bearer by usage, 474 SCRIP COMPANIES, 66 contributories in, 799 legality of, 131 transfer of shares in, 468 under Companies act, 1862. .,135, 136 within winding-up acts, 619 1224 GENERAL INDEX. '^w: i)' n -Hi SCRirHOLDEUS, inllN iiiion, 400, 420 convcrtcil into Nharnholdorfi, fl6 re^iHtratioii of lu Hliiii'(ih()lil«rfi, 107 n^tuni of (Icjiosit to, '29 iioto (u) riclit to pi.-tition for winding np, 027 whi'ii contributorics, 763, 700 HEAL OF COMl'ANY. Hoc Indkx No. I. bills of (•xchanj5(' drawn, 4c., under, 230 bye-lttWH undor, when necessary, 308 contract under, binds company, though entered into irregularly, 174, 190 el «<•(/. cll'ect of as estoppel, I'JO, 221 note (6), 226 improperly afllxed, 167, 174, 108,224 mandamus to remove, 61, 605 to allix, 605 nature of seal re(|uired, 221 necessity of, to contracts by companies, 220 el sea. persons conducting company's business, have authority to use, 224, 226 promissory notes made iindor, 230 retainer of solicitor under, 221 note (a), 266 to register, 106 when not necessary to })iiul company, at common law, 222 el seq. by statute, 225 el acq. Meti'onolitan gas act, 226 8 & Vict. c. 16, 226 Companies act, 1862, 228 See Companies' Srals act, 1864. HECRETAftY contract with, when binding, 160 for time being, actions by, 267, 559 payment of under Companies clauses act, 332 when liable to uccouut for shares given to him, 696 See CoMPA.viEH ; Notice. SECRET BENEFITS, directors must account for, 363 et seq. See Director. promoters must account for, 345 et seq. See Promoteks SECURED CREDITORS, position of in winding up, 720, 726 SECURITIES, amalgamation, effect of, on, 258 corporation taking improper, 163 note (y) liability of company for loss of, 209 non-registration of, 175, 203 shares are not, 460 validity of improperly issued, 193 SECURITY directors' liability for not taking, 372 re<|uired from cilScers under Companies clauses act, 330, 441 note (y to be given by liquidator, 700, 702 SECURITY FOR COSTS. 263. See Costs. SELLER OF SHARES, actions against, by purchaser, 498 actions by, against purchaser, 498 fraud by, 496, .592 fraud upon, 497 liability of to purchaser, 496 to calls, 423. See Calu. to be made contributorics, 833 et seq. See Rgtikbd Siiahkiiolubr. Hi ato iricgukrly, 174, ty to use, 224, 225 III. rEHH 330, 441 note {y OENERAI, INDEX. IHED StIAHKIIOI.UER. 1225 SELLER OF SHARKS- ,.„„^«u<.rf. li/'ii lor impai.l imiolm.sc inonoy, 496 n«»itH o , ,i«ui„.,t miroliumT, 402, 493 titli) to 1)0 Hhown liy, 192 wJien ontitlfld to iii.leinuity, li»9, 833, 834 >Soe, too, ( ON , •„,„,;,„■„,.•. ; Sa,,,.: of SnAHKS ; Tkashk,,k or S,, u>.. SEI'A KATE ESTATE, iiiyoHtiii(.nt oC in' slmivH, ll Imhility of, for Nlmivs, U SEQUESTRATION, writ ofugaiiistooiiioiato j.iopeity, 279 SERVANTS, aismissal ofl.y wimlinj; iip, 72!> piioiity for wages iii wimling up, 717 Hulu of .slmrcs in cost.l,ook n.inc to, fra.ululont, 82/i SERVICE, of petition to wind up, 056 of notices, &c., in winding up, 687 out of juiisdiction, 685 note (*). 687 911 ')» writs on .•ompnnioM, 264 v',te{p) SERVICES, right of directors to coniponsation for, 388 SET-OFF against holders of securities, 275 between conipuuies and non-nionibers. 273 et ,eu in bankruptcy of shareholder, !:>r,1 743 in winding up, 738 et seq. ' ' ' " against costs, 859 us between company and stranger, 738 hMvJnr'",*'11'P?°''''' '""• contributorios, 741 huymg up debts in order to set them off 73' '» summary proceedings, 744 when money is ordere.I to bo paid in winding up. 693 SETTLED ACCOUNT, opening, 694 SETTLING "l.u'.UToS?"'"' '" '' ''"■ «««. ^"^ - Co.rKu,i;rou,Ks ; Cos. SETTLING DAY, obtaining by fraud, indictable, 87 SHARE CAPITAL, 392./ *.vy. See Capital. SHAREHOLDER. See, also, Co.NTRrni)TouiR« wlio IS a generally, 36 aliens, 36, 37 cestui que tnust, 46 convi'-ts. 3S corporation or company, 43, 200 estoppel, persons by, 48 formalities not observed, Ai et seq waived, 47 et seq. See Formalitjks. w 1226 GENERAL INDEX. SHAREHOLDER— a'?t acts, 256 to indemnify directors, 378 ct seq. lien of, on each others' shares, 456 company against, 456 ( ' scq. See LiEX. majorities of 314f/.svr/. .See ilA.TORiTiE.s. management of companies by, 303 ct scq. under Companies act, 339 ct scq. under Companies clauses act, 330 ct scq. meetings of, 304 ct scq. See Meeiincs. l>aid up, 783 ct scq. See, also, Paid it ; SiiAitEs fvlly I'aiu vv. jiowers of, 303 ct scq. Iireference, ."22, 334, 405, 449, 868. oee, also, I'liEFERE.M E Shakes. registers of, 57. See Ri.cLstku of SiiAur.iioLDKiis. reimbursement of, by calls, 412 note (x) 9 8 , also, Actions, ■19, 550 J ; Scire Facias. GENERAL INDEX. SHAREHOLDERS-,.,,»/n„a-,/ rights of, to certificates of title, 64. See CERriFicATF. control directors. Ske Dii:ecto" be registered, 60, 61 inspect .iccouiits, 439 scriphSleS:'^"'-^'"'^ ^''°^^'^ ' ^-^^"^'^ converted ir.to, 66. See ScRir ; Scnmim ders (lifTerencc lietween and 63 -''""wi.nERs. «et-oll, ,n actions by and against, 273. See Sit-cff SHAREHOLDERS' ADDRESS BOOK 103 right to inspect, 333 ' SHARE LEDGER .1 register, TiO 1227 rs ; I.vsi'ECTiox. SHARE REGISTER. See RErasTEu. I. , Amalgamation. [TKIBUTORIES. FULLY FA ID UP. FERENCE ShARE.S. SHARES IX COMPANIES. See iN-nKX X general nature of, 392, 449 accejitance of, on ^S'^zszr^r^ fcr^'^"'"" "^*"" ^"""-^' ^ agrecmenttotake, 13 f/.,y., 769.^4. makes a person a contributory, 760 cf sen need not be in writing, 761 ■'' specific performance Jf, 586 agreement foi' sale of, 490 allotment of, on ap],lication for, i3_29. See \i , otupv,- must be by autliorised })orsons 14 300 '^'•'■'" '"'^ ' ' revocation of application before allotment 13 770 allott!]'? T "f"-^^"'^' t« '-''^■"I'l^'te the ontnict 15 allotted to directors, 365 ""n^i-i, la ought not to be sold as unallotted 592 accept:,S'n;;;;t':L^i^^^?,™Si.^r^^^^^ ^^^'^-^ assent to, l-O; persons nJ.t authS'lV' ' '' revocation of, 13, 770 attachment of, 463 blank transfers of, 471. See Blank Th wsfei's calls on, 40/ ct .v^. See Calls. '-^^^rLLs. cancellatioi: of, 517 c' s,-,, r.oa ,,, „.,„ oo- . FEirrnE ; S^-niu-SL-Ei' ^'^ ^^' '' '"'-^ ^^'^ ''' ''-I- See certificites of, 64. See Ceutificate-^ charging orders, 460 d .vm choses in action, how far they are, 454 company taking, in another companv. 43, 200, 200 liu ited, m ly not jmrchase its own 206 3'>o conversion of, into stock, ' ' — under Ci inpaiiies act, 405 . under Coniiianics clauses act, 399 ™al.ni,.UtylW issuing too maiiy, 304 disclaimer of, by trustee in bankruptcy 552 d sen < .vidends ],ayal,le ratably upon, 434 ' '" doctrines ,,1 reputed ownership not applicable to, 454. 551 generally, 321, 52S rt sr,j., 84:. d s^n. See FoPFErrrer lornon-payment of calls, 425 ' "i>FK!n he. in cost-bi " 7 RES. FoR- Uilder Colli] giiniiiig ill, 488 ook mining companies, 326 mines clauses act, 333 12ii8 (JENEKAL INDEX. ii ! SHARKS IN 'JOMPANIES— cortCt/iMcrf. Roods and chattels, how far thoy mo, 453 investiiif; in, 450 issue of bad tor good, jmnisliabic, 394 conditions, on, 17, 778 discount, at ii, 396. S^;e Shakes issued at a Discount. illegal, where [lersons iiro members in respect of, 52, 774 no estoppel, 53 what is, 783 joint owners of, 538 legacies of, 540 ft, na/. See LKo.vm'. passes stock, 400 note (0, 541 not debentures, 400 noti; (/), 541 lien on, 456 ct seq. See Lirn. not paid uj), cannot be transfciable to bearer, 135 note (/), 801 not securities, 450 option to pay in shares or easli. effect of, on liability as contributory, 762 paid up, 3si5, 783 ct seq. See I'aiu-up Shakes ; Sharks kui.i.y vaid ti?. holders of, when contvibutoiics, 783 et seq. liglits of, in distriliution ot assets, 867 ct seq. passing by delivery, contributories in case of, 803 nnist lie paid up, 135 note (./'), 801 payment in resjject of, what is, 395, 783 et seq. must be in cash when, 305, 783 ct seq. payment for gooils, &<■. in, elfect of on liability as contributory, 780 placing, power to pay persons for, 372 agreements for (lo not make person a contributory, 769 personal estate, 451 Mortmain acts, 451 — 453 Statute of Frauds, 452—453 pledge of, bv bliink transfers, 478 preference, 322, 334, 405, 449. See Prkferknce Shares. rights of holder of, in distribution of assets, 868 purchase of, not within i)owers of ilirectors, 179 own, by limited company, illegal, 206, 322 ([ualification shares, director's liability for as contributory, 790 director may not leceive, from promoter, 367 relinquishment of, 460, 517 et seq., 8S7 etseq. See Surrkndek m- Sharks. in cost-book mining companies, 94, 326, t'16 note {q) proof in winding up for value of, 736 repudiation of, after winding up, 753, 767 et nq. re))uted ownership, not within, 454, 551 restraining orders, 4ti3 revocation of application for, 13, 770 sales of, 487 ct sen. See Salk. in illegal compani'.- 140 scrip companies, in, translerable by delivery, 468 securities, ure not, 450 slander of title to, 454 stock witliin the Trustee acts, l*;! subdivision of, 405 effect of iniproper, 77 I succe.ssion duty payable u])on, 450 note (c) surrender of, .M7 '/ seq., 837 ft seq. See Surrender of Shares. Miivivorship in, 538, 639 transfer of, 464 et seq. See Transfer. before cnllw are paid, iC ' in windit.g up, 823 el .seq. transferal)le by delivery legalifv of at common law, 131 et seq. in scri)i com|ianies, 468 sinc'j Companies act, 135, 136 must be paid up. 135 note (/), 801 usA^c by, 474 1229 R OF Sharks. OENERAL INDEX. 8HARr.S m COUPAmES-continu^.. trustee in bankruptcy, position of, as to, 550 et sea to sell, 552 '■ tnisteo of entitled to be inde.nnified a-ainst calls Iqo o.r 1 riisteo acts, are stock within, 451 ' ^'^' ^^'^ unaer\vntin;r. acrepinpnf fnv r.,.>i, unissued befonsinrcUjanT 394''"'"'' ''' -"*'•"-*->'. 761 value and amount of, 455 varying the, 405 votes for Parliament confer no, 452 S;iARES ISSUED AT A DISCOUNT allowed under Companies clauses act, 39fi 309 not un..^r Companies act, 1862 334'sQfi am Zu: ,7 '''''r'f}'y '-. 22, note (a, 1230 GENERAL INDEX. SOLICITOR— conlinucd. to liqiiiiliitor, 703 to jircijectcd coniiiauics, liability of. 361 nullify jiaid to by promotei's, 355 liability of pi'omotevs to pay, 607 note {a) SOME ON BEHALF of tlicirselvos ami others, actions by, 565 ct scq. SPECIAL ACT, companies incoiporateil by, 102. See CoMr.\xiEs, 6 Contents of are facts, 242 ri<;lit to have cojjies of, 333 position of persons made members by, 104, 107 note (i), 790, 791 SPECIAL KESOLUTIOXS, under Companies act, 1862. ..343 SPECIALTY DEBTS, calls are, 427, 848 SPECIFIC PERFORJIAXCE, actions for, 583 rt scq. us a moans of being indemnified, 5Sfr decreed again i directors |)e'sonalIy, 243 note (a) defences to aeti'ins fo'', 687 of ag. cements to ainalgamato coiipanies, 585 form a company, 585 take sbrires, 586 witli promoters 357, 588 of contracts for the sale of shares, 499, 586 not under corporate seal, 223 of voluntary agreements, 588 STAMP on amount of nominal eajiital, 117, 401 articles of association, 118 authority to purser to in.sert name in cost-book. 97 contracts for sale of shares, 469 note (c), 490 cost book, 97 note ()) letters of allotment, 14 men\orandum of association, 117 mortgages of shaies, 460 note (c) ]iolicies of marine insurance, 761 proxy paper, 310 resolution of meeting unnecessary, 813 scrip certiticates, 65 transfer of shares, 469 iu Ciist-liook companies, 97 forcigi sliaies, 469 note (c STAMP OFFICE, returns to, by liaiddng companies under under 7 Geo. 4, c. 46... 109, 110, 269 7 & 8 Vict. c. 113...12'J STANDING ORDERS OF PARLIAMENT, 102 note ( t ) STANNAlilES. See Cosr-l'. i Mi.nino Comi'.\nii:s. aiiiu'ii from Couit of, 69'J Court for winding up companies in, 615, 616 li(luidator in, 701, 709 priority of debts under act, 718 piiiceduro in, in winding up, 654 note (/<) rectification of register by vice-warden, 124 registrar of the court of, acting as liipiidator, 701 staying proceedings in, 669 note («) ! {I'), 790, 791 GENERAL INDEX. STATUTE OF FRALTDS, and Comiwiiios !nt,' 1862. 2V and Companies clauses act, 227 STATUTE OF LLMITATIO\-^ r ijiiuiiAiiuAb. bee Limitations. STATUTES, irnpciativo and directory, 172— 175 relating to coniiianics, clironoloxical list of, 923 ef sea historical sketch of, 2 ct ,«,/ talile of those now in force, 931 STAYING PUOCEEDINGS, alter windiiifr up, actions against con.j.anies, 673 ct sco., 883 _ practice as to, tire ^ actions against members, 683 distresses for rent, 679 rates, 681 executions, 676 under winding up order, G6^, 890 STOCK, conversion of shares into, under !.'onipanios acts, 405 under Companies clauses act, 399 gaming m, -ISS ' passes under a legacy of shares, 400 note (/), 541 STOCKBROKEH. See Brokeh. STOCK EXCHANGE, frau Is on, by directors, liabUity of company for 213 illegal customs of, 489 ^ ■' ' ^ rules of, 501 'litteivuce between, and usage of brokers 515 Stli; :;!C '"' '''-'''■ '^ «-- -^'-^ - SToe. ExcH conspiracy to obtain by iVaud, 87, 488 STOrPAGE IN TH.iNSITU, against company being Vound up, 726, 72? SUBDIVISION OF SHARES, ell'ect of improper, 774 power of, 343, 405 SUBSCRIBERS, agieement, what was, 102 , to abortive conijmnies, ca!i;: "'^2'" "" """^'^ "' ''■''' subscriptions, 29-35 liability of, to be made contributories 764 nugonty nmy resolve to return subsci'ij.tions, 317 not Irtbie lor [ rrlinnnarv expenses, 30 right of, to have back their money •?q_-;5 where company is illegal, 139 ' to companies, who are, 19 note 7) oalis onf 40?';;^^ "'■ ^"'--''I't-- '-y -.ne „n behalf; 56S entitled to petition to wind it up e-'J mb.litv of for acts of ea^-h other, 144 cl s,;j. not liable f,r acts of promoters 144 return of subscriptif. when contributories, 797 to .scheme, not at libertj' to retire, 29 . SUBSCIUBERS' AGREEMENT, effect of undertaking to sign, 90 what i,s, 102 SUBSCRIPTIONS. majority of subscribers may re.solve to return, 317 to comimnies, recovery of, 29 — 35 SUCCESSION DUTY, payable on shares, 450 note (c) SUMMARY orders to jiay, &c,, in winding u]), 693 et sr^. proceedings in winding up, set-off in, 744 SUMMONS for examination in winding up, 690 SUPERVISION, WINDING UP UNDER, 886—890. See Winding up. commencement of, 665, 889 liquidators, 889 .staying actions, &c., in, 673 SUPPLIES, to "nine, shareliolders lipble for, 192, 205 SURETIES, effect of registration of a company on, 127 note (;>), 146 note («) amalgamation of a conijiany on, 258 note (/) for payment of calls, not contributories, 768 past members not, 821 SURPLUS ASSETS. distribution of, in winding up compulsorily, 867 et seq. voluntarily, 885 in cH^cs of building societies, 871 >;URRENDKK OF CHARTERS, 99, 323 SURKKNDKR OF SHARES, as part of conipn>uiise, 842 directors cimnot delegate a power to accept, 518 have no power to buy out shiueholdor.s, 520 who agree to accept a, are bound by such agreement, 522 powov must be properly exercised, 839 retirement of shareliolder compared with refusal to accept slnircs, 620 right to relinquish shares in conninuy, 517 cl x)'^ , 837 el seq. regulated by CompnnieH dnUHPs ant, 1863... 525 Comp luipi ai t, lH(l2...ri'if) in building societies. 52.i, 871, 920 in cost-book oonipiA^y, 94, 524, 816 note ( p) shareholder a (••utributoi) notwithstanding, M.H fl neq , 837 ct seq. Rurrendri' of share.s to company compai-e*! with a tinnsfer of them to tho directors, 521, 840 under § 161 of Companies sH, 1862, effect of, 842 SURVIVORSHIP. k'tween jtiint ht>l4lHs of shares, WjJ partners holding sharm), 5$* SUSPENSION, of proceedings. See Sr A TWO Prookkpinu.'*. Winding up. GENERAL INDEX. TABLE, of statutes relating to companies, chronological, 923 et mj. now 111 force, 931 TARLE A, to Companies act, 1862 118 provisions of, 33() r.t scq. See Index No. I. TABLE B, to Joint-stock companies act, 1856. ,.129 TAXATION, ofliqnijlators' costs, 863 note(s) "' «'IJcitor's bill in winding up, 724 TENANT FOR LIFE, of .shares, 542 right to bonu.ses, &c., 545, 546 TENDER, of transfer, on sale of shares, 495 TERMINATION OF LIABILITY >'i companies, 255. See, also', Liabiuty TIJKET, TIME. See Index No. I calculation of, 305, '306, 416, 417 tor appeals against orders in winding up 698 making en Us, 416, 846. See Calis^' ^ making allotment of shares 7 f. «->"» \ meetings, 305 ' " ^'^^ Allotment. proof in ■.vinding up, 713 repudiating shares, 26 et sen., -j^-j ^f ,.„ TITLE, to be shown by vendor of shares, 492 to .shares, proof of by certificates, 64. See Cep.tikicates. lORrs, liability of company for, 208 ct sen. directors fur, 240 TKADF ASSOCIATIONS, expulsion from, 528'noie (a) TIJADE UNIONS are now legal, 917 .-gistration of, und.r Companies act impossible, 1,5 TRANSFER OF BUSINESS «« a ••(feci of on cmSorf 249,l50^''^''='^""'""^' ' ''"«"''^«'^- on sureties, 258 nnte'(/) powerof compiiny to, 207 power of majority to sanction Soo when possible, 3i-2 winding up, in, S>-2, S*' -t seq. TliANSFER OF SCl'IP, W I..C. 1233 i5n 1234 GENERAL INDKX. '\ TRANSFER OF SHAKES generally, 464 ct srq. before calls are paitl, 466 legality of, 464 of member indebted to comjiany, 457, 458 on forged power of attoiiiey, 483 in particular companies, companies governed by 7 Geo. 4, c. 46. ..110 7 Wm. 4&1 Vict. c. 73... 101 8&9 Vict. c. 16... 108, 467 Ooi ipanles net, 1862. ..467 ccsl-book mining companies, 96, 164, 468 foreign com])anies, 913 scrip com])anies, 468 blank transfers, 471 ct scq. See Blank Tr.ANSFEi;.'!. "not in order," 482 not negotiable, 474 complete, when, 469 con.sent to, by court in winding up, 833, 834 by director of his own shares, 466 diity to procure, 467, 491, 506 giving and withholding, 465 necessity of, 464 relief when directors refu.se, 500, 834 delay in registering, effect of, 833 et seq. efl'ect of, as regards dissolution of company, 608 ct srq. liability to calls, 423. See Calls*. liability to creditors, 255 ct scq. liability to be made contributories, 823 ct scq. after company has discontinued business. 829 fraudulent, 803 ct scq. to avoid liability, 825 to directors, 830, 840 to jiersons not consulted, 802, 829 transferee accepted by company, 823 company imjjoscd upon, 827 ct 't", by mistake, 827 ct scq. transferee not accepted by company, 831 escape liability, in order to, not fraudulent, 464, 825 forged, 483 et scq. forms of, 469 irauduleut, 464, 465, 803 infants, to, 39, 809 ct scq., 828 informal, 835 lien, ell'eet of upon, 457, 458 mali fide, 803 et scq. mandamus to register a, 604 modes of transfer, 467 :uultii)ly votes, in order to, not illegal, 309 cannot be objected to, 465 negotiable, blank transfers not, 474 iioiiiinoe of purchaser, to, effect of, 495 "not in order," 482 ]. U])('r, to, when valid, 464, 825, 827 jiri'paratio]! of, 495 ]iriurities of (-([uitable, 454 register of, 57 ct scq. directors neglecting to, 8))3 rf scq, restraining undei' 5 Viet. o. 5, 463 TRji TRA TRA TRA TRA] TREi' TROl TRUS TRUS TRUS' TlilJSl S;e Registration ov Siiakks. spi'cilie jii'rforniance of, gratuitous and intended, 500. See Si';;ciKii l'KIiFt, 610 with transferable shares, legality of, 130 ct seq. under the bubble act, 130 at common law, 130 result of cases, 133 See Com PAN IKS. UNLIMITED COMPANIES, change of to limited, 113, 335 UNLIMITED LIABILITY at common law, 2 rl seq. liability of directors of a limited company, may be, 116 of banking companies in respect of notes, 855 UNPAID PURCHASE MONEY, lieu for, available against cora])any, 726 on shares, 496 when it gives right to petition for winding up, 624 UNREGISTERED COMPANIES, number of ])ersons who may be partners in, 114 contributories of, on winding up, 752, 753 UNSEALED CONTRACTS, lial)ility of corporations on, 220 ct seq. USAGE, of brokers, not same as rules and customs of stock exchange. 515 of company, elfect of, 98 note (/") mining usages must be proved, 95 n(!gotiability of transfers by, 474 See CusTOM.s. USE AND OCCUPATION, actions against corporatioii.s for, 220 note (a) VALUATION of shares of shareholder iHssentiag to sale of company's .-issels, 896 I I i i GENERAI, INDEX. 1287 VARIATION in object of company, 19 rlsr.q.^ of inumomiuluiii of association, ' 771. See Change OF SoHEMK. .Si'(! Mkmouandum of Ashociatios'. tig, 162, 163, 314 VENDOR lien of, in winding up, 720 on salu of .shines, 190 of sliaroa, position of in wimling up, 833 ct s,q Sce also Salk. VICK- WARDEN OF STANNARIES power to wind up companies, 616 rectification of register by, 124 See also Siannauiks. VOID AND VOIDABLE AGREEMENTS contributories by reason of, 777 ' See FuAiu. ; Miskkpuksentatiox ; Re.scis«ion of Conthmjts. VOLUNTARY WINDING UP, advantages of, 847 et seq. amalgamation aud reconstruction of companies in, 894 et sea. ciiiis in, 004 ' circumstances under which a company may be so wound ui. 87(; commencement of, 664, 877 .> >- "" woumi up, >i7<> companies capable of being so wound up 87 "i costs, 885 dissolution of company, 885 .jurisdiction of court after, 885 injunction to prevent, 885, 886 cU'ect of on creditor.s, 877 lii|uidators. See Liquidatous. how appointed, 879 duties and powers of, 879 bow controlled, 881 list of contributories, 884 payment of debts, 884 resolution for, 876 staying actions, 673, 674, 883 transfer of business upon, 882, 894 H scq. rights of dissenting members, 895 transfer of shares after, 832 when an answer to contributories' petition for a compuLsory or\ % ^\' - Q. i/i <^ 1238 OENBHAL INDEX. WAGERING IN SHARES, 488 WAGES, iiiiiicrti' lien for in cost-book company, 278 note (g) priority for, in winding up, 717, 718 WAIVER of complianco with § 38 of Companies act, 1867. . .92 of formalities necessary to constitute membership, 47 «t s»q. effect of, as between company and alleged shareholder, 49 creditor and alleged shareholder, 54 of notice of allotment, 15 of right to rescind for fraud, 73 Sec FURMAMTIES ; IKRKGULARITIE8. WAR, effect of, on contracts, 37 WAir^^fl EX PARTE, ■■''■ i:i, 727 WARRANT shur S.'e Shahe-s. WARRA.' •-' of » , aifx-vy, 88, 241, 242 WATERWORK COMPANIES, shares in, not within Mortmain act, 452 Statute of Frauds, 453 See Companies oovernbu by 8 & 9 Vict. c. 1(5. w;:TDiNO UP, under Railway abandonment act, 618 under old Winding-up acts, 611, 753 under the Companies act, 1862 See Analysis of Contents, Bk. IV., c. 1. And, also, Index No. I. various modes of, compared, 874 compulsorily, 616 et seq. subject to supervision, 886. See Winding up .subject to SUPBRVISION. voluntarily, 875. See Voluntary Winding up. l)ankniptcy rales, how far applicable, 719 books of company, ultimate disposition of, 870 breach of contract, how far, 728, 883 calls in, 846 et seq. See Calls on Contributoimes. enforcing payment of, 847, 848 for adjusting rights of coatributories, 852 costs, 859 debts, 849 limits of, 853 as regards past members, 853 present members, 855 set-off against, 857 conimencoment of in voluntary winding up, 664, 877 in wit.ding up compulsorily, 664 in winding up subject to supervision, 665, 889 Lonipnnies to which act applies, 616 et seq. amalgamated companies, 641 foreign companies, 622, 912 industrial companies, 614 note (o), 916 very small companies, 640 'compromises in, 709 Ider, 49 der, 54 '^ICT. C. 16. 10, Index No. I. UP .SUnJECT TO vr. GENERAL INDEX. WINDING llT~eontmued. coiitributories. See CoNTRiBUroniES. who are, 750 el set/, list of, form of, } 46 how settled, 745 how resettled, 747 in voluntary winding up, 884 Jiast members, position of, 750 primary and secondary liability of contributories, 749 petitions by, 639, 645 correction of register on, 120, 121, 755 costs of ] , loo distresses lor rent, 678 rates, 681 executions, 676 payment made by company, 667 position of members, 753 right to repudiate shares, 767 et seq. rescission of contract to take shares, 73, 76, 763, 767 et sea enforcing orders made in, 697 > > '". i->^, /d< ,i s,q. grounds for, 628 et seq. contributories' petitions, 639 creditors' petitions, US.'i inability to pay debts, 630 just and equitable, 631 summary of cases, 644 it sen. - history of, 611 <'/««/. injunction to restrain petition when n.ade, 637 note M inspection of books, kc, in, (i,^8 note (m) ' li'iuidators, 699 <;< W7/. Hie Liqi-idatous. aplpointmentof, 700, 701, 879 in voluntary winding up, 878 otHcial, 701 e.t seAj. powers and duties of, 707 ^rsoy. 1239 1240 GENERAL INDEX. WINDING VP—cmUinued. liquidators — coiUinved. provisional, 700 removal of, 703, 890 list of contributories. See Comtributories ; List of Contbibviohies. modes of, 613 not equivalent to a breach of couti :ct, when, 728, 883 orders for, a judgment, 663 appeals from, 661, 662 carriage of, 686 nannot be questioned except on appeal, 623 compulsor}', when made, 628 et neq. conflicting, 888 form of, 684 notice of, 684 proceedings under, 684, 686 staying proceedings under, 663 summary of cases, 644 et seq, winding up subject to supervision, 886 orders in appealing from, 697 j)etitions for. See Petition. costs of, 658 malicious, 614 practice on, 654 who may present, 624 preliminary inquiries, court may make, 642 proof of debts in, 713 et seq. See Proof of Debts. property of company, how affected by, 666 et seq, prosecutions directed in, 697 repudiation of shares, after, 763, 767 et seq. servants, effect on, as to dismissal, 729 set-off in, 738 against calls, 857 staying actions and executions pending, 669 et seq. proceedings in winding up, 663 summary powers of court, 689 et seq. summoning witnesses, Jcc, in, 689 transfers of shares, how affected by, 832. See Transfer ok Sharks. transfer of company's business in. See Amalgamation. in compulsory winding up, 711 in voluntary, 882 WINDING UP SUB.JECT TO SUPERVISION, 886 et seq. commencement of, 665, 889 effect of, 889 liquidators in, 889 when preferred to compulsory, 886 WITHDRAWAL of winding-up petition, 659 WITHDRAWING MEMBERS of building societies, 872, 920 WRIT, service of, on companies, 264 note (p). See Service. AYRITING, contracts in, when necessary, 220 et seq. See Contracts when agreement to take shares must be in, 761 THE END. BRADBUttT, AOMEW, & CO., nWTKM, WHITErRIAIW. •1. CONTPIBWTOUIES. FER OK SlIAllKS, ON. !B. EACT8