Francis Beaufort Palmer.

Company precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) online

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special whenever a resolution has been passed by a majority of not less than three- special resolu-
fourths of such members of the company for the tune being entitled, according to tion.

the regulations of the company, to vote as may be present, in person or by proxy
(in cases where by the regulations of the company proxies are allowed) , at a,ny
general meeting of which notice specifying the intention to propose such resolution



774



Appendix A.



has been duly given, and such resolution has been confirmed by a majority of Buch
members for the time being entitled, according to the regulations of the company,
to vote as may be jiresent, in person or by proxy, at a subsequent general meeting,
of which notice has been duly given, and held at an interval of not less than fourteen
days, nor more than one month from the date of the meeting at which such resolu-
tion was fii'st passed : at any meeting mentioned in this section, unless a poll is
demanded by at least five members, a declaration of the chairman that the resolu-
tion has been carried shall be deemed conclusive evidence of the fact, without proof
of the number or proportion of the votes recorded in favour of or against the same :
notice of any meeting shall, for the purj^oses of this section, be deemed to be duly
given and the meeting to be duly held, whenever such notice is given and meeting
held in manner prescribed by the regulations of the company : in computing the
majority under this section, when a poll is demanded, reference shall be had to the
number of votes to which each member is entitled by the regulations of the company.
Provision 52. In default of any regulations as to voting every member shall have one vote,

where no re- and in default of any regulations as to summoning general meetings a meeting
gulations as shall be held to be duly summoned of which seven days' notice in writing has been
to meetings. served on every member in manner in which notices are required to be served
by the table marked A. in the Fii'st Schedule hereto, and in default of any
regulations as to the persons to summon meetings five members shall be competent
to summon the same, and in default of any regulations as to who is to be chairman
of such meeting, it shall be competent for any person elected by the members
present to preside.
Registry of 53. A copy of any special resolution that is passed by any company under this

special resolu- Act shall be printed and forwarded to the registrar of joint stock companies, and be
tions. recorded by him : if such copy is not so forwarded within fifteen days from the

date of the confirmation of the resolution, the company shall incur a penalty not
exceeding two pounds for every day after the expiration of such fifteen days during
which such copy is omitted to be forwarded, and every dk-ector and manager of the
company who shall knowingly and wilfully authorize or permit such default shall
incur the like penalty.
Copies of 54. Where articles of association have been registered, a copy of every special

special resolu- resolution for the time being in force shall be annexed to or embodied in every copy
tions. of the articles of association that maybe issiied after the passing of such resolution:

where no articles of association have been registered, a copy of any special resolu-
tion shall be forwarded in print to any member requesting the same on payment of
one shilling-, or such less sum as the company may dii-ect : and if any company
makes default in complying with the provisions of this section it shall incur a
penalty not exceeding one pound for each copy in respect of which such default is
made ; and every director and manager of the company who shall knowingly and
wilfully authorize or permit such default shall incur the like penalty.
{Extended by Companies Act, 1867, s. 8.)

Execution of 55. Any company under this Act may, by instrument in writing under its
deeds abroad, common seal, empower any person, either generally or in respect of any specified
matters, as its attorney, to execute deeds on its behalf in any place not situate in
the United Kingdom ; and every deed signed by such attorney, on behalf of the
company, and under his seal, shall be binding on the company, and have the same
effect as if it were under the common seal of the company.
{See Companies Seals Act, 1864, s. 7.)

Examination 56. The Board of Trade may appoint one or more competent inspectors to
of affairs of examine into the afi'airs of any company under this Act, and to report thereon, in
company by such manner as tlio board may direct, upon the appUcations following ; (that is
inspectors. to say,)

(1.) In the case of a banking company that has a capital divided into shares, upon
the application of members holding not less than one-third part of the
■whole shares of the company for the time being issued :
(2.) In the case of any other company that has a capital divided into shares,
upon the application of members holding not less than one-fifth part of the
wliole shares of the company for the time being issued ;
(3.) In the case of any company not having a capital divided into shares, upon
the application of members being in number not less than one-fifth of the
whole number of persons for the time being entered on. the register of the
company as members.
Application 57. Tlio aj)pUcatiuii sliall bo sujiportod by such evidence as the Board of Trade

for inspection may require for the purpose of showing that the aijplicants have good reason for



The Companies Act, 18G2. Act of 1862 775

requiring such investigation to be made, and that they are not actuated by malicious to be sup-
motives in instituting the same ; the Board of Trade may also require the appli- ported by
cants to give security for payment of the costs of the inquuy before appointing any evidence,
inspector or inspectors.

68. It shiill be the duty of all officers and agents of the company to produce for Inspection of
the examination of the inspectors all books and documents in their custody or books,
power : any inspector may examine upon oath the officers and agents of the
company iu relation to its business, and may administer such oath accordingly : if
any officer or agent refuses to produce any book or document hereby directed to be
produced, or to answer any question relating to the affairs of the company, he shall
incur a penalty not exceeding five pounds in respect of each offence.

59. Upon the conclusion of the examination the inspectors shall report their Result of ex -
opinion to the Board of Trade : such report shall be written or printed, as the Board amination,
of Trade directs : a copy shall be forwarded by the Board of Trade to the registered ^^^ dealt
office of the company, and a further copy shall, at the request of the members upon 'with,
whose application the inspection was made, be deUvered to them or to any one or

more of them : all expenses of and incidental to any such examination as aforesaid
shall bo defrayed by the members upon whose application the inspectors were
appointed, unless the Board of Trade shall direct the same to be paid out of the
assets of the company, which it is hereby authorized to do.

60. Any company under this Act may by special resolution appoint inspectors Power of
for the purpose of examining- into the affairs of the company : the inspectors so company to
apj)ointed shall have the same powers and perform the same duties as inspectors appoint iu-
appointed by the Boai-d of Trade, with this exception, that, instead of making their spectors.
rei^ort to the Board of Trade, they shall make the same in such manner and to such

persons as the company in general meeting dh-ects ; and the officers and agents of
the company shall incur the same penalties, in case of any refusal to produce any
book or document hereby required to be produced to such inspectors, or to answer
any question, as they would have incurred if such inspector had been appointed by
the Board of Trade.

61. A copy of the report of any inspectors apjjointed under this Act, authenti- Report of in-
cated by the seal of the company into whose affairs they have made inspection, spectors to be
shall be admissible in any legal proceeding, as evidence of the opinion of the evidence,
inspectors in relation to any matter contained in such report.

JS'otiees.

62. Any summons, notice, order, or other document required to be served upon Service of
the company may be served by leaving the same, or sending it through the post in notices on
a prepaid letter addressed to the company, at theii' registered office. _ company.

63. Any document to be served by post on the company shall be posted in such j^^^g^ j^g ^^
time as to admit of its being delivered in the due course of delivery within the period ^Q^j(.gg -^
(if any) prescribed for the service thereof ; and in proving service of such docu- jg^-^gj. ''
ment it shall be sufficient to prove that such document was properly directed, and

that it was put as a prepaid letter into the post office.

64. Any summons, notice, order, or proceeding reqidring authentication by the Authentica-
company may be signed by any director, secretary, or other authorized officer of tion of notices
the company, and need not bo imder the common seal of the company, and the of company,
same may be in -writing or in print, or partly in writing and partly in print.

Legal Troceed'mgs.

65. All offences under tliis Act made punishable by any penalty may be prose- Recovery of
cuted summarily before two or more justices, as to England, in manner directed penalties,
by an Act passed in the session holden in the eleventh and twelfth years of the

reign of her Majesty Queen Victoria, chapter forty-three, intituled an Act to

facilitate the Performance of the Duties of Justices of the Peace out of Sessions

within England and Wales with respect to summary Convictions and Orders, or

any Act amending the same ;* and as to Scotland, before two or more justices or *See 20 ^- 21

the sheriff of the county, in manner directed by the Act passed in the session of yid. c. 43,

Parliament holden in the seventeenth and eighteenth years of the reign of her and 42 ^- 43

Majesty Queen Victoria, chapter one hundred and four, intituled an Act to amend yi^.f. c. 43.

and consohdate the Acts relating to Merchant Shipping, or any Act amending the

same, as regards offences in Scotland against that Act, not beiug offences by that

Act described as felonies or misdemeanors ; and as to Ireland, m manner dii-ected

by the Act passed in the session holdeu in the fourteenth and fifteenth years of the



776



Appendix A.



Application
of penalties.



Evidence of
proceedings
at meetiuo-s.



Jurisdiction
of Vice-
warden of
Stannaries.



Provision as
to costs in
actions
brouf^lit by
certain
limited com-
puiiifH.
pp. 74, 325
Declaration
in actifjn
against
members.



reign of her Majesty Queen Victoria, chapter ninety-three, intituled an Act to
consolidate and amend the Acts regulating the proceedings of Petty Sessions and
the Duties of Justices of the Peace out of Quarter Sessions in Ireland, or any Act
amending the same.

66. The justices or sheriflE imposing any penalty under this Act may direct the
"whole or any part thereof to be applied in or towards payment of the costs of the
proceedings, or in or towards the rewarding the person upon whose information or
at whose suit such penalty has been recovered ; and subject to such direction, all
penalties shall be paid into the receipt of her Majesty's Exchequer in such manner
as the Treasury may direct, and shall be carried to and form part of the Consoli-
dated Eund of the United Kingdom.

67. Every company under this Act shall cause minutes of all resolutions and
proceedings of general meetings of the company, and of the directors or managers
of the company in cases where there are directors or managers, to be duly entered in
books to be from time to time provided for the purpose ; and any such minute as
aforesaid, if pvirporting to be signed by the chairman of the meeting at which such
resolutions were passed or proceedings had, or by the chairman of the next succeed-
ing meeting, shall be received as evidence in all legal proceedings ; and until the
contrary is proved, every general meeting of the company or meeting of directors
or managers in respect of the proceedings of which minutes have been so made shall
be deemed to have been duly held and convened, and all resolutions passed thereat
or proceedings had, to have been duly passed and had, and all appointments of
directors, managers, or liquidators shall be deemed to be valid, and all acts done by
such directors, managers, or liquidators shall be valid, notwithstanding any defect
that may afterwards be discovered in their appointments or qualifications.

68. In the case of companies under this Act, and engaged in working mines
within and subject to the jurisdiction of the Stannaries, the Court of the Vice-
warden of the Stannaries shall have and exercise the like jurisdiction and powers,
as well on the common law as on the equity side thereof, which it now possesses
by custom, usage, or statute in the case of unincorporated companies, but only
so far as such jurisdiction or powers are consistent with the provisions of this Act
and with the constitution of companies, as prescribed or required by this Act ; and
for the purpose of giving fuller effect to such jurisdiction in all actions, suits, or
legal proceedings instituted in the said Court, in causes or matters whereof the
Court has cognizance, all process issuing out of the same and all orders, rules,
demands, notices, warrants, and summonses required or authorized by the practice
of the Court to be served on any company whether registered or not registered, or
any member or contributory thereof, or any officer, agent, director, manager, or
servant thereof, may be served in any part of England without any special order
of the vice-warden for that purpose, or by such special order may be served in any
part of the United Kingdom of Great Britain and Ireland, or in the adjacent
islands, parcel of the dominions of the Crown, on such terms and conditions as the
Court shall tliink fit ; and all decrees, orders, and judgments of the said Court made
or pronounced in such causes or matters may be enforced in the same manner in
which decrees, orders, and judgments of the Court may now by law be enforced,
whether within or beyond the local limits of the Stannaries ; and the seal of the
said Court, and the signature of the registrar thereof, shall be judicially noticed by
all other Courts and judges in England, and shall require no other proof than the
production thereof : the registrar of the said Court, or the assistant registrar, in
making sales under any decree or order of the Court shall be entitled to the same
privilege of soiling by auction or competition without a license, and without being
liable to duty, as a judge of the Court of Chancery is entitled to in pursuance of the
Acts in that behalf.

69. Where a limited company is plaintiff or pursuer in any action, suit, or other
legal proceeding, any judge having jurisdiction in the matter may, if it appears by
any credible testimony that there is reason to believe that if the defendant be
successful in his defence the assets of the company will be insufficient to pay his
costs, require sufficient security to be given for such costs, and may stay all pro-
ceedings until such security is given.

70. In any action or suit brought by the company against any member to
recover any call or other moneys due from suoli member in his character of member,
it shall not be necessary to set forth the special matter, but it shall be sufficient to
allege that the defendant is a member of the company, and is indebted to the com-
pany in reKj)cct of a call made or other moneys due whereby an action or suit hath
accrued to the comjKiny.



The Companies Act, 18G2. Act of 1862 777

Alteration of Forms.

71. The forms sot forth in the Second Schedule hereto, or forms as near thereto Board of
as circumstances admit, shall bo used in all matters to which such forms refer : the Trade may
Board of Trade may from time to time make such alterations in the tables and forms alter forms
contained in the First Schedule hereto, so that it does not increase the amount of in schedule,
fees payable to the Keg-istrar in the said Schedule mentioned, and in the forms in

the Second Schedule, or make such additions to the last-mentioned forms as it deems
requisite : any such table or form, when altered, shall be published in the London
Gazette, and upon such publication being made such table or form shall have the
same force as if it were included in the Schedule to this Act, but no alteration mado
by the Board of Trade in the Table marked A. contained in the First Schedule shall
affect any company rogistei'ed prior to the date of such alteration, or i-eiDcal, as
respects such company, any portion of such table.

Arbitrations.

72. Any company under this Act may from time to time, by writing under its Power for
common seal, agree to refer and may refer to arbitration, in accordance with " The companies to
Railway Companies Ai-bitration Act, 1859," any existing or future difference, refer matters
question, or other matter whatsoever in dispute between itself and any other com- to arbitration,
pany or person, and the companies parties to the arbitration may delegate to the

person or persons to whom the reference is made power to settle any terms or to
determine any matter capable of being lawfully settled or determined by the com-
panies themselves, or by the directors or other managing body of such companies.
{And see Arbitration Act, 1889.)

73. All the provisions of "The Railway Companies Arbitration Act, 1859," Provisions of
shall be deemed to apply to arbitrations between companies and persons in pursu- 22 «& 23 Vict,
ance of this Act ; and in the construction of such provisions "the companies " shall c. 59, to

be deemed to include companies authorized by this Act to refer disputes to arbitra- apply,
tion.

PART IV.

Winding-tip of Companies and Associations undeb this Act.
Preliminary.

74. The term " contributoiy " shall mean every person liable to contribute to Meanino* of
the assets of a company under this Act, in the event of the same being wound up : contributory.
it shall also, in all proceedings for determining the persons who are to be deemed ^^g
contributories, and in all proceedings prior to the final determination of such

persons, include any person alleged to be a contributory.

75. The liability of any person to contribute to the assets of a company under Nature of
this Act, in the event of the same being wound up, shall be deemed to create a debt liabihty of
(in England and Ireland of the nature of a specialty) accruing due from such person contributory,
at the time when his liability commenced, but payable at the time or respective ^ aaq
times when calls are made as hereinafter mentioned for enforcing such liabihty ;

and it shall be lawful in the case of the bankruptcy of any contributory to prove
against his estate the estimated value of his liability to future calls as well as calls
already made.

76. If any contributory dies either before or after he has been placed on the list Contributories
of contributories hereinafter mentioned, his pei'sonal representatives, heirs, and in case of
devisees shall be liable in a due course of administration to contribute to the assets death.

of the company in discharge of the liability of such deceased contributory and such p ^^g
personal representatives, heirs, and devisees shall be deemed to be contributories
accordingly.

77. If any contributory becomes bankrupt, either before or after he has been Contributories
placed on the list of contributories, his assignees shall be deemed to represent such jq case of
bankrupt for all the purposes of the winding-up, and shall be deemed to be contri- bankruptcy,
butories accordingly, and may be called upon to admit to proof against the estate of ^g

such bankrupt, or otherwise to allow to be paid out of his assets in due course of ""
law, any moneys due from such bankrupt in respect of his liability to contribute to
the assets of the company being wound up ; and for the purposes of this section
any person who may have taken the benefit of any Act for the relief of insolvent



778



Appendix A.



Contributories
in case of
marriage,
p. 447



Circumstances
under wliich
company may
be wound up
by Court,
p. 34



Company
■when deemed
unable to pay
its debts.
p. 35



Definition of
"the Court."



Application
for windiiig'-

11]) to Ik;
Jiiadi; by
petition.



debtors before the eleventh day of October one thousand eight hundred and sixty-
one shall be deemed to have become bankrupt.

78 . If any female contributory marries, either before or after she has been placed
on the list of contributories, her husband shall during the continuance of the mar-
riage be liable to contribute to the assets of the company the same sum as she woidd
have been liable to contribute if she had not married, and he shall be deemed to be
a contributory accordingly.

[See Married Women'' s TropcrUj Act, 1882.)

Wind'mg-xip by Court.

79. A company under this Act may be wound up by the Court as hereinafter
defined, under the following circumstances ; (that is to say, )

(1.) Whenever the company has passed a sjiecial resolution requiring the company
to be wound up by the Court :

(2.) Whenever the company does not commence its business within a year from its
incorporation, or suspends its business for the space of a whole year :

(3.) Whenever the members are reduced in number to less than seven :

(4.) Whenever the company is unable to pay its debts :

(5.) Whenever the Court is of opinion that it is just and equitable that the com-
pany should be wound up.

80. A company under this Act shall be deemed to be unable to pay its debts :
(1.) Whenever a creditor, by assignment or otherwise, to whom the company is

indebted, at law or in equity, in a sum exceeding fifty pounds then due,
has served on the company, by leaving the same at their registered oflBce,
a demand under his hand requiring the company to pay the sum so due,
and the company has for the space of three weeks succeeding the service of
such demand neglected to pay such sum, or to secure or compound for the
same to the reasonable satisfaction of the creditor :

(2.) Whenever, in England and Ireland, execution or other process issued on a
judgment, decree, or order obtained in any Court in favour of any creditor,
at law or in equity in any proceeding instituted by such creditor against
the company, is returned unsatisfied in whole or in part :

(3.) Whenever, in Scotland, the inducite of a charge for payment on an extract
decree, or an extract registered bond, or an extract registered protest have
expii-ed without payment being made :

(4.) Whenever it is proved to the satisfaction of the Court that the company is
unable to pay its debts.

81. The expression " the Court,'''' as used in this pari of this Act, shall mean the
following authorities ; [that is to say,) —

[_Li the case of a company engaged in working any mine within and subject to the Juris-
diction of the Stannaries, — the Court of the Vice Warden of the Stannaries, unless
the Vice Warden certifies that in his opinion the company icould be more advan-
tageously wound up in the Sigh Court of Chancery, in wh'ich case ^Hhe Court^' shall
mean the High Court of Chancery :
In the case of a company registered in England that is not engaged in working any

such mine as aforesaid, — the High Court of Chancery ;]
In the case of a company registered in Ireland, the Court of Chancery in Ireland :
\_In all cases of companies registered in Scotland, the Court of Sessions in either division
thereof ;]
Provided that where the Court of Chancery \in England or] Ireland makes an order for
winding-up a company under this Act, it may, if it thinks ft, direct all subsequent pro-
ceedings for tcinding-up the same to be had in the Court of Bankruptcy having jurisdiction
in the place in trhich the registered office of the company is situate ; and thereupon such
lust-mcntiuncd Court of Bankruptcy shall, for the purposes of winding-up the company, be
deemed to be '■^the Court'''' within the meaning of the Act, and shall have for the purposes
of such winding-up all the powers [of the High Court of Chancery, or'] of the Court of
Chancery in Ireland, \_as the case may require].



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 101 of 134)