Charles Mac Naughten Sir Francis Beaufort Palmer.

Company precedents for use in relation to companies: subject to ..., Volume 2 online

. (page 116 of 152)
Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 116 of 152)
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or endorsed in the name of the company by any person acting under the authority of exchange,
of the company, or if made, accepted, or endorsed by or on behalf or on account pt. I. 8th ed.
of the company by any person acting under the authority of the company. p. 633

48. If any company under this Act carries on business when the number of its Prohibition
members is less than seven for a period of six months after the number has been so -i-oinot
reduced, every person who is a member of such company during the time that it so j^ baS: "
carries on business after such period of six months, and is cognizant of the fact that ^ . . j^ i "
it is so carrying on business with fewer than seven members, shall be severaUr ^^ geven
liable for the payment of the whole debts of the oompany contracted during such members
time, and may be sued for the same, without the joinder in the action or suit of any

other member.

Provisions for Protection of Members.

49. A gfeneral meeting of every company under this Act shall be held once at 0«nend meetiDg
the least in every year. ^ company.

{See Companies Act, 1900, s.\2asto [first or'\ statutory meeting.)

60. Subject to the provisions of this Act, and to the conditions contained in the Power to alter
memorandum of association, any company formed under this Act may, in general regulations
meeting from time to time, by passing a special resolution in manner hereinafter by special
mentioned, alter all or any of the regulations of the company contained in the resolution,
artides of association or in the table marked A. in the First Schedule, where such p^, j, g^ ^
table is applicable to the company, or make new regulations to the exclusion of or p, '542

in addition to all or any of the regrtilations of the company ; and any regulations so «' ^ Mg
made by special resolution shall be deemed to be regulations of the company of the *> -P*^ » P* '*•
same validity as if they had been originaUy contained in the articles of association,
and shall be subject in like manner to be altered or modified by any subsequent
special resolution.

61. A resolution passed by a company under this Act shall be deemed to be Definition of
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 time being entitled, aooording to tion.

the regulations of the oompany, to vote as may be present, in person or by proxy p. 728
(in cases where bv the regulations of the oompany proxies are allowed), at any
general meeting of which notice specifying the intention to propose such resolution



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930



Appendix A.



has been dnly given, and such resolution has been confirmed bj a majority of sack
members for the time being entitled, according to the regulations of the company,
to vote as may be present, in person or by proxy, at a subsequent g^eral 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 first 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 shsll 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 anv meeting shall, for the purposes 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 memW is entitled by the reg^ulations 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
gfuIatioDS as shall be held to be duly simmioned of which seven days* notice in writing has be«i
to meetings, served on every member in manner in which notices are required to be served
p. 728 by tiie table marked A. in the First Schedule hereto, and in default of any

regulations as to the persons to summon meetings five members shall be competent
K to summon the same, and in default of any reg^atlons as to who is to be chairman

of such meeting, it shall be competent for any person elected by the members
present to preside.
Biegistry of 58. A copy of any special resolution that is passed by any company under tiiia

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

p. 786 ^^ ^^ ^^ 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 director and manage 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 may be issued after the passing of such resolution :

where no articles of association have been registered, a copy of any special reeola-
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 direct : and if any companj
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
wUfully authorize or permit such default shall incur the like penalty.
{Extended by Companies Act^ 1867, 9. 8.)

65. Any company under this Act may, by instrument in writing under its
common seal, empower any person, either gpenerally 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 we company.
(See Companiet Seals Act, 1864, s. 7.)

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

(1.) in the case of a banking company that has a capital divided into shares, upon
the application of members holding not less than one-third part of the
whole shares of the company for the 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
wnole 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 ihe
whole number of persons for the time being entered on the register of the
company as members.
Application 57. The application shall be supported by such evidence as the Board of Trade

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



Execution of
deeds abroad.



Examination
of affairs of
company by
inspectors.



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The Companies Act, 1862. Act of 1862 931

requiring' ench investigatioii to be made, and that they are not actuated by malioioug to be sup-
motives in instituting the same ; the Board of Trade may also require the appU* ported by
oants to give security for payment of the costs of the inquiry before appointing any evidenoe.



58. It shall 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 in relation to its business, and may administer such oath accordingly : if
any officer or agent refuses to produce any book or document hereby directed to be
produced, or to answer any question relating to the afiPairs of the company, he shall
incur a penalty not exceeding fi.ve pounds in respect of each ofPence.

69. Upon the conclusion of the examination the inspectors shall report their Besult of ex-
opinion to the Board of Trade : such report shall be written or printed, as the Board aminution,
ci Trade directs : a copy shall be forwarded by the Board of Trade to the registered how dealt
office of the company, and a further copy shall, at the request of the memb^ upon with,
whose application the inspection was made, be delivered to them or to any one or
more of tbem : all expenses of and incidental to any such examination as aforesaid
shall be defrayed by the members upon whose application the inspectors were
appointed, xmless 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
appointed shall have the same powers and perform the same duties as mspectors appoint in-
appointed by the Board of Trade, with this exception, that, instead of making their specters,
report to the Board of Trade, they shall make the same in such manner and to such

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

61. A copy of the report of any inspectors appointed under this Act, authenti- Beport of in-
cated by the seal of the company into whose affairs they have made inspection, specters 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.

Notices.

62. Any summons, notice, order, or other document required to be served upon Servioeof notioes
the company may be served by leaving the same, or sending it through the post in on oompany.

a prepaid letter addressed to the company, at their registered office.

68. Any document to be served bv post on the company shall be posted in such i^ules as to
time as to admit of its being deliverea in the due course of delivery within the period notices by
(if any) prescribed for the service thereof ; and in proving service of such docu- letter,
ment it ^all be sofficient to prove that such document was properly directed, and
that it was put as a prepaid letter into the post office.

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

Zegal Proceedings .

65. All offences under this Act made punishable by any x)enalty may be prose- Beoovery 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 summaiy Convictions and Orders, or

any Act amending the same ;* and as to Scotland, oefore two or more justices or *Cm on a oi

the sheriff of the county, in manner directed by the Act passed in the session of yf^. j.

Parliament holden in the seventeenth and eighteenth years of the reign of her !542'<e.43

Majesty Queen Victoria, chapter one hundred and four, intituled an Act to amend ^. - \^

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

same, as reg^ards offences in Scotland against that Act, not being offences b^ that

Act descril^ as felonies or misdemeanors ; and as to Ireland, in manner directed

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



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932



Appendix A.



Application
of penalties.



Evidence of
proceedings
at meetings.



Jurisdiction
of Vice-
warden of
Stannaries.



ProTision as to
costs in actions
brought >>7
oertam limited
companies.

p. 104

Declaration
in action
against
members.



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

66. The justices or sheriff imposing any penalty under this 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 sooh manner
as the Treasury may direct, and shall be carried to and form part of the GonsoU-
dated Fund 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 sach minute as
aforesaid, if purporting to be signed by the chairman of the meeting at which sndi
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 proyed, every general meeting of the company or meeting of directon
or managers in resi)ect of the proceedings of which minutes have been so made shall
be deemSi 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 yalid, notwithstanding any defedfc
that may afterwards be discovered in their appointments or qualifioations.

68. In the case of companies imder this Act, and engaged in working mines
within and subject to the jurisdiction of the Stannaries, tiie 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 imincorporated companies, out 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 think fit ; and all decrees, orders, and judgments of the said Court made
or pronounced in sudi 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, m
making sales imder any decree or order of the Court shall be entitled to the same

Erivilege of selling by auction or competition without a license, and without being
able to duty, as a judge of the Court of Chancery is entitied 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 hj
any credible testimony that there is reason to believe that if tiie 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 g^ven.

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



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The Companies Act, 1862. Act of 1862 933

AUeration of Formt,

71. The forms set forth in the Second Schedule hereto^ or forms as near thereto Board of
as ciroumstancos admit, shall he used in all matters to which such forms refer : ihe 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 Begistrar 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 it it were included in the Schedule to this Act, but no alteration made
by the Board of Trade in the Table marked A. contained in the first Schedule shall
affect any company registered prior to the date of such alteration, or repeal, as
respects such company, any portion of such table.

Arbitrationa.

72. Any company under this Act may from time to time, by writing under its Power for
common seal, ag^ree to refer and may refer to arbitration, in accordance with ** The companies to
Railway Companies Arbitration Act, 1859," any existing or future difference, refer matters
question, or otner 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 Aet, 1889.)

78. All the provisions of **The Railway Companies Arbitration Act, 1859," P^ovi^ions 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 o. 59, to

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

PART IV.

WnXDISQ-XTP OF COKPANIBB AKD AbSOOEAXIONS UNSBB THIS AOT.

Freliminary,

74. The term '* contributory" shall mean every person liable to contribute to Meaning 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 p. 499
contributories, and in all proceedingv prior to the final determination of such
persons, include any person alleged to be a contributory.

76. 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 liability 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 p ^qq
times when calls are made as hereinafter mentioned for enforcing such liability ;
and it shall be lawful in tiie 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 Contribu-

of contributories hereinafter mentioned, his personal representatives, heirs, and tories in case
devisees shall be liable in a due course of admmistration to contribute to the assets of death,
of the company in discharge of the liability of such deceased contributory and such - ^qq
personal representatives, heirs, and devisees shall be deemed to be oontributories ^*
accordingly.

77. If any contributory becomes bankrupt, either before or after he has been Contrlbu-
placed on the list of oontributories, his assig^nees shall be deemed to represent such tories in case
bankrupt for all the purposes of the winding-up, and shall be deemed to be contri- of bank-
butories accordingly, and may be called upon to admit to proof against the estate of ruptcy.
such bankrupt, or otherwise to allow to be paid out of his assets in due course of p^ 599

law, any moneys due from such bankrupt in respect of his liability to contribute to
the assets of tibe 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



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934



Appendix A.



Contribntoriee
in case of
marriage.



CiromnfitaiiceB
under which
company may
be wound up
by Court.



Company
when deemed
unable to pay
its debts,
p. 47



Definition of
"the Court."
p. 81



Application
for winding-
up to be
made by
petition.
p. 47



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 contributoir marries, either before or after she has been phoed
on the list of contributorios, her husband shall during the oontinuanoe of the mar-
riage be liable to contribute to the assets of the company the same sum as she would
have been liable to contribute if c^e had not married, and he shall be deemed to be
a contributory accordingly.

{See Married Women's Property Aet^ 1882.)

Winding 'Up 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 special resolution requiring the company
to be wound up by flie Court ;

(2.) Whenever the company does not commence its business within a year from iii
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 pa^ 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 doe,
has served on the company, by leaving the same at their registered oflSoe,
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 serrioe of



Online LibraryCharles Mac Naughten Sir Francis Beaufort PalmerCompany precedents for use in relation to companies: subject to ..., Volume 2 → online text (page 116 of 152)