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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summoned for the purpose :

(5.) Where a company not having the liability of its members limited by Act of
Parliament or letters patent is about to register as a limited company, the
majority required to assent as aforesaid shall consist of not less than three-
foiu'ths of the members present, personally or by proxy, at such last-
mentioned general meeting :

(G.) Where a company is about to register as a company limited by guarantee,
the assent to its being so registered shall be accompanied by a resolution
declaring that each member undertakes to contribute to the assets of the
company, in the event of the same being Avound up, dtu'ing the time that
he is a member, or within one year afterwards, for pajTiient of the debts
and liabilities of the company contracted before the time at which he



'94



Appendix A.



Companies
capable
of being
registered.



Definition of
joint stock
company.



Requisitions
for registra-
tion by com-
panies.



Requisitions
for registia-
tif)n by exist-
ing company
not being u
joint strjfk
company.

Power for
existing
coinpjiny
to register
amoiiiit of
stock iiiHtcad
of sliares.
Autbf'iitica-
tioii of htatc-



ccased to be a member, and of the costs, charges, and expenses of winding-
up the company, and for the adjustment of the rights of the contributories
amongst themselves, such amount as may be required, not exceeding a
siieeified amount.
In computing any majority under this section when a poll is demanded regard sliall
be had to the number of votes to which each member is entitled according to the
regulations of the company of which he is a member.

180. With the above exceptions, and subject to the f(jregoing regulations, every
company existing at the time of the commencement of this Act, including any com-
pany registered under the said Joint Stock Companies Acts, consisting of seven or
more members, and any company hereafter formed in pursiiance of any Act of Par-
liament other than this Act, or of letters patent, or being a company engaged in
■working mines within and subject to the jurisdiction of the Stannaries, or being
other"v\-ise dtily constituted by law, and consisting of seven or more members, may
at any time hereafter register itself under this Act as an unlimited company, or a
company limited by shares, or a company limited by guarantee ; and no such
registration shall be invalid by reason that it has taken place mth a view to the
company being wound up.

181. For the purposes of this part of this Act, so far as the same relates to the
description of companies empowered to register as companies limited by shares, a
joint stock company shall be deemed to be a company having a permanent paid-up
or nominal capital of fixed amount, divided into shares, also of fixed amount, or
held and transferable as stock, or di^'ided and held partly in one way and partly in
the other, and formed on the principle of having for its members the holders of
shares in siich capital, or the holders of such stock, and no other persons ; and such
company when registered with limited Liability under this Act shall be deemed to be
a company limited by shai'es.

182. Proviso as to banking company. [Repealed by Companies Aet, 1879, s. 6.)

183. Previously to the registration in purstiance of this part of tliis Act of any
joint stock company there shall be delivered to the registrar the following docu-
ments ; (that is to say.)

(1.) A list showing the names, addi-esses, and occupations of all persons who on a
day named in svach list, and not being more than six clear days before the
day of registration, were members of such company, with the addition of
the shares held by such persons respectively, distinguishing, in cases where
such shares are numbered, each share by its number :
(2.) A copy of any Act of Parliament, royal charter, letters patent, deed of settle-
ment, contract of copartnery, cost book regulations, or other instrument
constituting or regulating the company :
(3.) If any such joint stock company is intended to be registered as a limited com-
pany, the above list and copy shall be accompanied by a statement specify-
ing the following particulars ; (that is to say, )

The nominal capital of the company and the number of shares into which
it is divided :

The number of shares taken and the amount paid on each share :

The name of the company, with the addition of the word " Umited " as
the last word thereof :

"With the addition, in the case of a company intended to be registered as
a company limited by guarantee, of the resolution declaring the amount of
the guarantee.

184. Pre^aously to the registration in piu'sixance of this part of this Act of any
company not being a joint stock company there shall be delivered to the registrar a
list showing tlie names, addresses, and occupations of the dii-ectors or other managers
(if any) of the company, also a copy of any Act of Parliament, letters patunt. drtnl
of settlement, contract of copartnery, cost book rcg-ulations, or other instrument
constituting or regulating the company, \\-ith the addition, in the case of a company
intended to be registered as a company limited by guarantee, of the resolution
declaring the amount of guarantee.

185. "Wliere a joint stock company authorized to register under this Act has had
tlic whole or any portion of its capital converted into stock, suc^h company shall, as
to the (■!i])itiil so <-()nv(rt(d, instead (jf delivering to the registrar a statement of
sliares, deliver to the registrar a statement of the amount of stock belonging to the
company, and the names of the persons who were liolders of snch stock, on some
day Ui be named in the statement, not more than six clear days before the day of
registration.

186. Tlio lists of members and directors and any other particulars relating to
tlie compaTi}' hf i-( by rccpiircd to be dilivered to the registrars shall be verified hj a



The Companies Act, 18G2. Act of 1862 ro.j

declaration of the directors of the company delivering the same, or any two of them, ments of

or of any two other principal ofdoers of the company, made in pursuance of the Act existing

passed in the sixth year of the rcig'n of his late Majesty King William the Fourth, companies,
chapter sixty-two.

187. The registrar may require such evidence as he thinks necessary for the -i^^egistrar may
purpose of satisfying himself whether an existing company is or not a joint stock require evi-
company as hennnbefore defined. dence as to

188. Every banking company existing at the date of the passing of this Act ^^'''^^ o*
which registers itself as a limited company shall, at least thirty days previous to company,
obtaining a certificate of registration Avith limited- liability, give notice that it is On registra-
intended so to register the same to every person and partnership firm who have a tion of bank-
banking account with the company, and such notice shall be given either by deliver- ing company
ing tlie same to such person or finn, or lea\'ing the same or putting the same into M-ith limited
the post addi'cssed to him or them at such addi-css as shall have been last communi- liability notice
cated or otherwise become known as his or their address to or by the company ; and to be given to
in case the company omits to give any such notice as is hereinbefore required to be customers,
given, then as between the company and the person or persons only who are for the

time being interested in the account in respect of which such notice ought to have
been given, and so far as respects such account and aU variations thereof down to
the time at which such notict; shall be given, but not further or otherwise, the cer-
tificate of registration with limited liability shall have no operation.

189. No fees shall be charged in respect of the registration in pursuance of this Exemption of
part of this Act of any company in cases where such company is not registered as a certain com-
limited company, or where previously to its being registered as a limited company panics from
the liability of the shareholders was limited by some other Act of Parliament or by payment of
letters patent. fees.

190. Any company authorized by this part of this Act to register with limited Power to
liability shall, for the piu-pose of obtaining registration with limited liability change companj^ to
its name, by adding thei-eto the word " Kmited." chana'c name.

191. Upon compliance T\dth the reqiusitions in this part of this Act contained Cei-tificate of
with respect to registration, and on payment of such fees, if any, as are payable j-,,o-istration
tinder the Tables marked B. and C. in the fii-st schedide hereto, the registrar shall of'oxistino-
certify under his hand that the company so applying for registration is incoi-porated eomnanies
as a company under this Act, and in the case of a limited company, that it is ^'
limited, and thereupon such company shall be incorporated, and shall have j^ei-petual
succession and a common seal, with power to hold lands ; and any banking company

in Scotland so incorporated shall be deemed and taken to be a bank incorporated,
constituted, or established by or under Act of Parliament.

192. A certificate of incoii^oration given at any time to any company registered Certificate to
in piu'suance of this part of this Act shall be conclusive e\'idence that all the requi- be e^ddenco
sitions herein contained in respect of registration under tliis Act have been comj)lied of compliance
with, and that the company is authorized to be registered under this Act as a limited mth Act.

or unlimited company, as the case may be, and the date of incorporation mentioned
in such certificate shall be deemed to be the date at which the company is incorpo-
rated under this Act.

193. All such property, real and personal, including- all interests and rights in. Transfer of
to, and oiit of property, real and personal, and including obligations and things in -Dro-Dertv to
action, as may belong to or be vested in the company at the date of its registration companv
under this Act, shall on registration pass to and vest in the company as incoi-porated

tinder this Act, for all the estate and interest of the company therein.

194. The registration in pursuance of this part of this Act of any company shall Eegisti'ation
not afi'ect or prejudice the liability of such company to have enforced against it, or nnder this Act
its right to enforce, any debt or oblig'ation inciu'red, or any contract entered into, not to afilect
by, to, with, or on behalf of such company previously to such registration. obligations

195. All such actions, suits, and other legal proceedings as may at the time of inciu-red pre-
the registration of any company registered in pui'suance of this part of this Act viously to
have been commenced by or against such company, or the public ofiicer or any registration,
member thereof, may be continued in the same manner as if such registration had Continuation
not taken place ; nevertheless execution shall not issue against the effects of any of existino-
individual member of such company upon any judgment, decree, or order obtained actions and
in any action, suit, or proceeding so commenced as aforesaid ; but in the event of suits.

the property and effects of the company being insufficient to satisfy such judgment,
decree, or order, an order may be obtained for -winding-up the company.

196. When a company is registered under this Act in purstiance of this part Eft'ect of
thereof, all provisions contained in any Act of Parliament, deed of settlement, con- registration
tract of copartnery, cost book regidations, letters patent, or other instnunent consti- under Act.
tuting or rcgiUating the company, including, in the case of a company registered



796



Appendix A.



p. 450



Po"wcr of
Court to ro-
Btrain further
proceedings.



Order for

■wiTuliiif^-up

coi/ipc'uiy.



as a company limited by guarantee, the resolution declaring the amount of the
gnarantee, shall be deemed to be conditions and regulations of the company, in the
same manner and "with the same incidents as if they were contained in a registered
memorandum of association and articles of association ; and all the provisions of
this Act shall apply to such company, and the members, contributories, and creditors
thereof, in the same manner in aU respects as if it had been formed under this Act,
subject to the provisions following ; (that is to say,)

(1.) That Table A. in the First Schedule to this Act shall not, unless adopted by
special resolution, apply to any company registered under this Act in pur-
suance of this part thereof :
(2.) That the provisions of this Act relating to the numbering of shares shall not

apply to any joint stock company whose shares are not numbered :
(3.) That no company shall have power to alter any provision contained in any

Act of Parliament relating to the company :
(4.) That no company shall have power, without the sanction of the Board of
Trade, to alter any provision contained in any letters patent relating to the
company :
(5.) That in the event of the company being woimd up, every person shall be a
contributory, in respect of the debts and liabilities of the company con-
tracted prior to registration, who is liable, at law or in equity, to pay or
contribute to the payment of any debt or liability of the company con-
tracted 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 tbe pay-
ment 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 con-
tributory shall be liable to contribute to the assets of the company, in the
course of the winding-up, all sums due from him in respect of any such
liability as aforesaid ; and in the event of the death, bankruptcy, or in-
solvency of any such contributory as last aforesaid, or man-iage of any
such contributory being a female, the provisions hereinbefore contained
with respect to the representatives, heirs, and devisees of deceased contri-
biitories, and with reference to the assignees of bankrupt or insolvent
conti-ibutories, and to the husbands of married contributories, shall
apply :
(6.) That nothing herein contained shall authorize any company to alter any such
provisions contained in any deed of settlement, contract of copartnery, cost
book regulations, letters patent, or other instrument constituting or regu-
lating the company, as would, if such company had originally been formed
under this Act, have been contained in the memorandum of association,
and are not authorized to be altered by this Act :
But nothing herein contained shall derogate from any power of altering its con-
stitution or regulations which may be vested in any company registering under this
Act in piu'suance of this part thereof by virtue of any Act of Parliament, deed of
settlement, contract of copartnery, letters patent, or other instrument constituting
or regulating the company.

[See Companies Act, 1867, s. 47.)

197. The Coiu't may, at any time after the presentation of a petition for
M-iiiding-up a company, registered in pursuance of this part of this Act, and before
making an order for winding-up tht; company, upon the application by motion of
any creditor of the company, restrain fm'ther proceedings in any action, suit, or
legal proceeding against any contributory of the company as well as ag-ainst the
company as hereinbefore proA-ided, upon such teiTns as the Court thinks fit.

[As to Scotland, see Companies Act, 1886, s. 5.)

198. Where an order has been made for winding-up a company registered in
pursuance of this part of the Act, in addition to the provisions hereinbefore
contained, it is hor(,>by further provided that no suit, action, or other legal proceed-
ing shall be cornmenced or proceeded with against any contributory of the company
in respect of any debt of the company, except with the leave of the Court, and
subject to such terms as tlic Court may impose.

[As to Scotland, sec Companies Act, 1886, ,v. 5.)



The Companies Act, 1862. Act of 1862 707



PART VIII.

Application of Act to Uneeqisteeed Companies.

199. Subject as hereinafter mentioned, any partnership, association, or company, Wmdinfj-up
except railway companies incorporated by Act of Parliament, consisting of more of unrcj^is-
than seven members, and not registered under this Act, and hereinafter included tcred com-
undcr the term um-egistered company, ma}' be wound up under this Act, and all the panics,
provisions of this Act with respect t(j winding-up shall apply to such company, with p. 87
the following exceptions and additions :

(1.) An imregistered company shall, for the pui-pose of detcnnining the Court
ha\ing jm'isdiction in the matter of the "winding-iip, be deemed to be
registered in that part of the United Kingdom where its principal place of
business is situate ; or if it has a principal place of business situate in
more than one part of the United Kingdom, then in each part of the
United Kingdom where it has a principal place of business ; moreover
the principal place of business of an unregistered company, or (where it
has a principal place of business situate in more than one part of the
United Kingdom) such one of its principal places of business as is situate
in that part of the United Kingdom in which proceedings are being
instituted, shall for aU the pm-poses of the winding-up of such company
be deemed to be the registered office of the company :
{•!.) No um-egistered company shall be woimd up imdcr this Act voluntarily or

subject to the supervision of the Court :
(3.) The circimistances imder which an imi-egistered company may be Avoimd uj)
are as follows ; (that is to say,)

{a) Whenever the company is dissolved, or has ceased to carry on busi-
ness, or is carrying on business only for the purpose of winding-up its
aff ah's ;

(b) "Whenever the company is unable to pay its debts ;

(c) Whenever the Com-t is of opinion that it is just and equitable that
the company should be wound up.

(4.) An unregistered company shall, for the purposes of this Act, be deemed to
be unable to pay its debts,

{a) "Whenever a creditor to whom the company is indebted at law or in
equity, by assigmnent or otherwise, in a sum exceeding fifty pounds then
due, has served on the company, by leaving the same at the principal place
of business of the company, or by delivering to the secretary or some
director or principal officer of the company, or by otherwise serving the
same in such manner as the Coiu-t may approve or direct, a demand imder
his hand requii-iug the company to pay the sum so due, and the company
has for the space of tlu'ee weeks succeeding the service of such demand
neglected to pay such sum, or to seciu-e or compound for the same 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 demand due, orclauned
to be due, from the company, or from him in his character of member of
the company, and notice in writing of the institution of such action, suit, or
other legal proceeding ha^■ing been served upon the company by leaving
the same at the principal place of business of the company, or by delivering
it to the secretary, or some du-ector, manager, or principal officer of the
company, or by otherwise serving the same in such manner as the Court
may ai)j)rove or direct, the company has not within ten days after service
of such notice ijaid, secured, or compounded for such debt or demand, or
procured such action, suit, or other legal proceeding to be stayed, or in-
demnified the defendant to his reasonable satisfaction against such action,
suit, or other legal proceeding, and against all costs, damages, and expenses
to be incurred by him by reason of the same :

(e) "Whenever, in England or Ireland, execution or other process issued
on a judgment, decree, or order obtained in any Court in favour of any
creditor in any proceediag at law or in equitj' instituted by such creditor
against the company, or any member thereof as such, or against any per-
son authorized to be sued as nominal defendant on behaK of the company,
is returned unsatisfied :

{(^ Wlienever, in the case of an unregistered company engaged in work-
ing mines within and subject to the juiisdiction of the Stannaries, a custo-



798



Appendix A.



Wlio to be
deemed a con-
ti'ibutory in
the eveut of
company
being- wound
up.
p. 450



Power of
Cotu-t to re-
strain further
proceedings.



EfPect of order
for winding-
up company.



Pro\'i.sion in
case of un-
registered
company,
p. 217



Provisions in
this part of
Act cumula-
tive.



mary decree or order absolute for the sale of the machinery, materials,
and effects of such mine has been made in a creditor's suit in the Coiu-t of
the Vice -Warden :

(e) Whenever, in Scotland, the inducise of a charge for payment on an
extract decree, or an extract registered bond, or an extract registered pro-
test, have expired without payment being made :

(/) Whenever it is otherwise proved to the satisfaction of the Court that
the company is unable to pay its debts.
{See C. {TV. V.) Act, 1890, s. 32.)

200. In the event of an unregistered company being wound up every person
shall be deemed to be a contributory who is liable, at law or in eqtuty, to pay or
contribute to the payment of any debt or liability of the company, or to pay or
contribute to the payment of any svim for the adjustment of the rights of the
members amongst themselves, or to jiay or contribute to the payment of the costs,
charges, and expenses of winding-iip the company, and every such contributory
shall be liable to contribute to the assets of the company in the course of the
Avinding-up all sums due from him in respect of any such liability as aforesaid;
but in the event of the death, bankriiptcy, or insolvency of any contributory, or
marriage of any female contributory, the provisions hereinbefore contained with
respect to the personal representatives, heirs, and devisees of a deceased contributory,
and to the assignees of a bankrupt or insolvent contributory, and to the husband of
married contributories, shall apply.

201. The Court may, at any time after the presentation of a petition for winding-
up an unregistered company, and before making an order for winding-up the com-
pany, upon the application of any creditor of the company, restrain fiu'ther pro-
ceedings in any action, suit, or proceeding against any contributory of the company,
or against the company as hereinbefore provided, upon such terms as the Court
thinks fit.

[As to Scotland, see Companies Act, 1886, s. 5.)

202. Wliere an order has been made for vraiding-up an unregistered company
in addition to the provisions hereinbefore contained in the case of companies formed
under this Act, it is hereby further provided that no suit, action, or other legal
proceeding shall be commenced or proceeded "with against any contributory of the
company in respect of any debt of the company, except with the leave of the Court,
and subject to such terms as the Court may impose.

203. If any unregistered company has no power to sue and be sued in a common
name, or if for any reason it appears expedient, the Court may, by the order made
for winding-up such company, or by any subsequent order, direct that all such pro-
jDcrty, real and personal, including all interest, claims, and rights into and out of
property, real and personal, and including things in action as may belong to or be
vested in the company, or to or in any person or persons on trust for or on behalf of
the conij^any or any part of such property, is to vest in the official liquidator or
official liquidators, by his or their official name or names, and thereupon the same
or such part thereof as may be specified in the order shall vest accordingly, and the
official liquidator or official liquidators may, in his or their official name or names,
or in such name or names and after giving such indemnity as the Court directs,
bring or defend any actions, suits, or other legal proceeding relating to any property
vested in him or them, or any actions, suits, or other legal proceedings necessary to
be brought or defended for the purposes of effectually winding-up the company and
reco^•ering the property thereof.

204. The provisions made by this part of the Act with respect to unregistered



Online LibraryFrancis Beaufort PalmerCompany precedents for use in relation to companies subject to the Companies acts, 1862 to 1890 ... (Volume 2) → online text (page 105 of 134)